Lethrud v. State, Industrial Special Indem. Fund, 20721

• Decision Date: 06 January 1995
• Docket Number: No. 20721,20721
• Citation: 126 Idaho 560,887 P.2d 1067
• Parties: Olaf LETHRUD, Claimant-Appellant, v. STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant-Respondent. Coeur d'Alene, October 1994 Term
• Court: Idaho Supreme Court

Page 1067

887 P.2d 1067

126 Idaho 560

Olaf LETHRUD, Claimant-Appellant, v. STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant-Respondent.

No. 20721.

Supreme Court of Idaho,

Coeur d'Alene, October 1994 Term.

Jan. 6, 1995.

Steven C. Verby, Sandpoint, for appellant.

Larry Echohawk, Atty. Gen., Quane, Smith, Howard & Hull, Coeur d'Alene, for respondent. Carol B. Groover argued.

McDEVITT, Chief Justice.

Olaf Lethrud (Lethrud) appeals the order of the Idaho Industrial Commission (Commission) denying Lethrud's claim for worker compensation benefits from the Idaho Industrial Special Indemnity Fund (I.S.I.F.). Lethrud argues that the Commission erred when it concluded that Lethrud failed to prove that he suffers total and permanent disability under the odd-lot doctrine as a result of his accident and injury of October 1985. Lethrud also argues that the Commission erred when it concluded that Lethrud failed to prove that he had a preexisting permanent physical impairment so as to render the I.S.I.F. liable for workers' compensation benefits. Lethrud contends that whether a preexisting condition exists should be determined at the time the claimant is unable to continue working, rather than at the time of injury.

I. BACKGROUND

Lethrud is a sixty-two year old man residing in Bonners Ferry, Idaho. Lethrud is a high school graduate. He has training as a military policeman and has been employed at a variety of jobs at lumber mills.

In May 1985, Lethrud was hired by W-I Forest Products, Inc. (W-I) in Bonners Ferry, Idaho. On October 21, 1985, Lethrud was repairing a tail saw when he slipped and fell into the tail saw pit and caught his right wrist on the teeth of the saw blade. Lethrud also injured his knee in the fall.

Lethrud sought medical treatment for his injuries from Dr. William H. Slaughter, an orthopedic surgeon. Dr. Slaughter x-rayed Lethrud's wrist and knee and determined that Lethrud suffered "an avulsion fracture of the ulnar styloid and a medial collateral strain of the right knee." Lethrud was then treated by Dr. P.J. Kavanagh, a general practitioner from British Columbia, who placed Lethrud's right wrist in a cast. After the cast was removed, Lethrud returned to work at W-I stacking lumber. Lethrud's position was eliminated in November of 1988, and Lethrud was reassigned to a tail saw position at the sawmill. Lethrud testified at the hearing before the Commission that he had difficulty with the heavy lifting aspects of the tail saw job.

Lethrud's wrist pain continued, so he went to Dr. James F. Brinkman in Spokane, Washington. Dr. Brinkman examined Lethrud and suggested the possibility of surgery in the future. The next year, in 1988, Lethrud was reevaluated by Dr. Brinkman who recommended surgery be performed. A surgical procedure described as an ulna resection with a tendon transfer was performed on Lethrud's wrist in June 1989. Four months after the surgery, Dr. Brinkman released Lethrud to return to work at W-I, but stated that Lethrud could not perform the heavy work of his prior job. In December 1989, Lethrud was still suffering from pain in his joints, knee, and right foot, so he sought medical treatment from Dr. J.R. Hill, Lethrud's family physician. Dr. Hill found that Lethrud had moderately severe degenerative arthritis and concluded that the arthritis condition combined with Lethrud's wrist injury would make it unlikely that Lethrud could return to work in the logging industry. In January 1990, Lethrud visited Dr. Craig W. Wiesenhutter, a rheumatologist from Coeur d'Alene, who found spur formations in Lethrud's elbow and shoulder due to arthritis and advanced degenerative changes in Lethrud's right thumb and wrist. Like Dr. Hill, Dr. Wiesenhutter concluded that, due to the extent of Lethrud's arthritis and the damage from Lethrud's injuries, Lethrud was unable to work in the lumber mill.

In January 1990, a medical panel, consisting of Dr. J.B. Watkins and Dr. R.A. Wetzlar, examined Lethrud and concluded that Lethrud suffered from degenerative arthritis in his right thumb, wrist, elbow, and shoulder. The panel concluded that Lethrud's medical condition was stationary and that Lethrud could return to work. The panel rated the disability in Lethrud's right hand at ten percent (10%) disability as compared to the loss of the right hand at the wrist. In March and April of 1990, Dr. Brinkman re- In 1992, the Objective Medical Assessments Corporation (O.M.A.C.) evaluated Lethrud and agreed with the medical panel's June 1990 evaluation. O.M.A.C. believed that Lethrud's injury was stable and fixed but felt that Lethrud could not return to his prior positions at the mill. O.M.A.C. concluded that if Lethrud were employed, the position would have to be at a light-duty job that would allow him to sit or stand at will with no lifting over five (5) pounds.

[126 Idaho 562] examined Lethrud and concluded that Lethrud's previous work load exceeded his capacity. Dr. Brinkman stated that Lethrud could not lift more than ten (10) pounds without pain and that Lethrud should be limited to light duty jobs, such as desk jobs or telephone answering positions. In June of 1990 a second medical panel consisting of Dr. R.D. Luther and Dr. R.A. Wetzlar, examined Lethrud and found that Lethrud's condition had worsened. The panel concluded that Lethrud's right leg had a permanent physical impairment of two percent (2%) as compared to the amputation of the right leg at the knee joint and an increase in impairment of Lethrud's right wrist to fifteen percent (15%) as compared to the amputation of the hand at the wrist. The combined impairment of the leg and wrist translated to a permanent disability rating of ten percent (10%) of the whole person.

II. PRIOR PROCEEDINGS

On March 12, 1990 W-I terminated Lethrud because he did not return to work after Dr. Brinkman released Lethrud to return to work. Lethrud testified that he was unable to return to work because he could not use his hands and arms, and could not lift heavy things. Lethrud has not worked since that time.

On January 22, 1991, Lethrud filed an application for a hearing seeking disability benefits, including total permanent disability benefits, partial permanent disability benefits, and total temporary disability benefits, from W-I and W-I's surety, Wausau Insurance Company. On September 30, 1991, the I.S.I.F. was joined in the action. Shortly before the scheduled hearing, a settlement agreement was entered into between Lethrud, W-I and Wausau Insurance. The case proceeded to hearing solely against I.S.I.F. The case was heard before the Industrial Commission on September 30, 1992, with Commissioner Betty H. Richardson and former Commissioner Logan E. Lanham, presiding. At the hearing Lethrud argued that he is entitled to benefits from I.S.I.F. because he is totally and permanently disabled under the odd-lot doctrine and that he has a preexisting permanent physical impairment as a result of his accident and injury of October 1985. At the hearing Lethrud testified to his physical limitations. Lethrud stated that he experiences pain in his right knee, shoulder, elbow, and wrist, which affects his ability to walk, stand, and lift heavy objects. Lethrud's wife and son testified to Lethrud's physical limitations performing tasks requiring fine dexterity, such as wiring a light fixture and mounting a scope on a rifle.

At the hearing, two vocational rehabilitation counselors, Daniel R. McKinney (McKinney) and Steve Hamman (Hamman), testified to occupational possibilities available to Lethrud within the Bonners Ferry/Sandpoint, Idaho geographical region. McKinney's evaluation consisted of conducting a labor market survey of a sample position which Lethrud could perform and a vocational evaluation of the region. After identifying viable occupational...