Lindskog v. Rosebud Mines, Inc.

• Decision Date: 09 March 1962
• Docket Number: No. 9046,9046
• Citation: 84 Idaho 160,369 P.2d 580
• Parties: John J. LINDSKOG, Claimant-Respondent, v. ROSEBUD MINES, INC., Employer, and State Insurance Fund, Surety, Defendants-Appellants. John J. LINDSKOG, Claimant-Respondent, v. INTERMOUNTAIN LUMBER COMPANY, Inc., Employer, and the Travelers Indemnity Company, Surety, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 580

369 P.2d 580

84 Idaho 160

John J. LINDSKOG, Claimant-Respondent, v. ROSEBUD MINES, INC., Employer, and State Insurance Fund, Surety, Defendants-Appellants.

John J. LINDSKOG, Claimant-Respondent, v. INTERMOUNTAIN LUMBER COMPANY, Inc., Employer, and the Travelers Indemnity Company, Surety, Defendants-Respondents.

No. 9046.

Supreme Court of Idaho.

March 9, 1962.

Coughlan & Imhoff, Boise, for appellants.

Davison, Davison & Copple, Boise, for claimant-respondent.

Marcus & Evans, Boise, for respondents Intermountain Lumber Co. and Travelers Indemnity Co.

TAYLOR, Justice.

November 10, 1955, claimant (respondent) suffered an injury to the lumbo-sacral area of his back, by accident arising out of and in the course of his employment by the Rosebud Mines, Inc., (appellant), for which the State Insurance Fund (appellant) was surety. The fund thereafter paid total temporary disability compensation for the period from November 11, 1955, to March 31, 1956, in the sum of $811.43 and the sum of $665.05, for medical care and treatment and expenses incident thereto. These payments were voluntarily made; no agreement or award of compensation was ever entered into or made. Claimant's attending physician, Dr. Z. A. Johnson, reported that claimant would be able to return to work April 1, 1956. No further payments of disability compensation were made after that date. The physician in his final report dated August 31, 1956, said:

'Patient may have a permanently damaged intervertebral disc, as he continues to have mild back discomfort, but has returned to regular work.'

When discharged from the hospital, claimant was wearing a brace or back support prescribed by Dr. Johnson. He entered the employ of respondent Intermountain Lumber Company early in July, 1956, as a millwright. Intermountain's surety was respondent. The Travelers Indemnity Company. The lumber company assigned only light work to claimant, and although he tried to do so, he was unable to work without the brace. Any heavy tasks connected with his job were handled for him by other employees of the lumber company. He continued to suffer pain and discomfort, which at times required him to stop work and take rest periods. At times his legs gave way, causing him to fall. On such occasions he would not permit fellow employees to come to his assistance, because of the pain, but would maneuver himself into a position where he could arise by himself and resume work.

Claimant continued to visit Dr. Johnson on occasions when his pain was most severe. Dr. Johnson referred claimant to L. Stanley Sell, an orthopedic physician and surgeon in Idaho Falls. In his first report, July 3, 1956, Dr. Sell stated:

'The lumbar films show marked narrowing of the lumbo-sacral disc, increase in the lumbar curve to approximately 90~. Slight wedging of the 11th and 12th thoracic vertebrae, anteriorly, (old).'

At the suggestion of Dr. Johnson by letter of April 22, 1957, the fund requested that Dr. Sell again examine claimant and further report. May 3, 1957, Dr. Sell made the requested examination, and concluded his report thereof as follows:

'I discussed this patient's condition with him considerably and told him that he had had a considerable amount of conservative treatment with apparently an incomplete recovery as far as he was concerned. If he wished to take any further steps, it would be necessary to do a myelogram to determine if operative intervention would be of any avail to him. He said he would be willing to submit to this and accordingly we are requesting with this report permission to go ahead and do myelography. If any operative intervention seems indicated, we will then report the same to you before proceeding.'

The fund's response to this report, dated May 16, 1957, was as follows:

'Reference your letter May 3, 1957. Authorization granted for hospitalization, myelography and surgery for the above named Claimant.'

In response to the authorization claimant was hospitalized May 28, 1957, and myelography was taken by Dr. Sell. May 29, 1957, Dr. Sell reported that the myelogram did not show 'any evidence of disc protrusion, and * * *

'With these findings I did not feel justified in offering any operative intervention to this particular patient and, therefore, have asked him and his family doctor, Zach Johnson, to continue with the conservative management.

'It is too early to estimate what the ultimate outcome will be in this particular patient's case.'

In a letter addressed to Dr. Johnson, October 30, 1957, the fund requested:

'We would appreciate your courtesy in submitting to this office and the Industrial Accident Board a detailed medical report indicating Claimant's present progress and future prognosis.'

Responsive to Dr. Johnson's report of November 20, 1957, the fund under date of December 2, 1957, requested a follow-up orthopedic examination and report from Dr. Sell. Under date of December 13, 1957, Dr. Sell reported:

'This patient is making a slow but satisfactory recovery from his injury, and no change in treatment was recommended today.'

In July, 1958, at the request of Dr. Johnson, the fund authorized and provided a new back support. January 29, 1959, the fund requested 'up-to-date medical reports,' from Dr. Johnson. Dr. Johnson's response, February 24, 1959, is as follows 'Mr. Lindskog's back condition is essentially unchanged at the present time. He is working doing relatively light work but has to wear a back support most of the time. His back does bother him frequently but with the aid of the back support he has not had to discontinue working.'

By letter of March 5, 1959, addressed to Dr. Sell, the fund noted that the four-year limitation period would expire November 11, 1959, and said:

'A recent report from his Attending Physician Doctor Z. A. Johnson, M.D., indicates that in his opinion, claimant's back condition is essentially unchanged at the present time. We would appreciate your courtesy in furnishing the claimant with an appointment date to report to your office for a final orthopedic examination in connection with his injury. After the completion of his examination, please submit two copies of your report and fee bill to this office with a third copy of your report being submitted to Dr. Z. A. Johnson, M.D., for his information and attention.

'A copy of this communication is being furnished to the claimant with instructions that he report to you on the date specified for examination. After completion of examination, return to his home, he is to submit his travel receipts direct to our office for reimbursement of expenses incurred when reporting for examination.'

A copy of this letter was mailed to claimant and to Dr. Johnson. Responsive to this request Dr. Sell examined claimant March 18, 1959, and among other things reported:

'The * * * patient was in my office today. He is still wearing his back brace. At the present time and for the past couple years, I guess, he has been employed as a millwright at the Intermountain Lumber Company. He states he has been working every day. He has lost as a total about five days from work on account of his back, but on each occasion it has never been more than a day or so and he states they have been very good to him at his place of employment and he does not have to do any heavy lifting. He states that he feels he will never be able to return to heavy manual labor again and doubts that he can ever get along without his back brace.

'Conclusion: This patient's condition seems to be about static at the present time. I told him I saw no reason why he should not just continue on as he is and just before his four years time is up he should come in and be reexamined and have his partial permanent disability rated.'

October 15, 1959, the fund addressed a letter to Dr. Sell, again advising that the four-year period would expire November 11, 1959, and:

'We would appreciate your courtesy in furnishing claimant with an appointment date prior to this time to report to your office for a follow-up orthopedic examination and disability evaluation if it is in order in connection with the above referenced injury.

'A copy of this communication is being furnished to the claimant with the request that he report to you on the date specified for examination.'

Responsive to this request Dr. Sell examined claimant October 28, 1959, and at the conclusion of his report said:

'Both the patient and I agree that his symptoms are not severe enough to warrant operative intervention. He feels that as long as he wears his brace and continues in his present occupation he can get along quite nicely. I would estimate, therefore, that the patient has come to the end of his healing period, that his back condition is static and his partial permanent disability is not greater than 20% as compared to loss of one leg at the hip joint.'

November 5, 1959, the fund wrote claimant and enclosed for his signature a compensation agreement adopting, and based upon, the partial permanent disability rating, reported by Dr. Sell, in the sum of $900.00. Claimant consulted Dr. Johnson in reference to the proposed agreement and, at Dr. Johnson's suggestion, he consulted an attorney at Salmon, who referred claimant to an attorney in Boise. The proposed agreement was never signed by claimant.

November 19, 1959, claimant was engaged in repair welding on a fork lift at the shop of the Intermountain Lumber Company. This he did from a position on the fender of the machine, about three and a half feet above the ground. Upon finishing the job and in moving to get down, his left foot caught and he fell to the ground, again injuring his back in the same area as before. This accident rendered claimant totally disabled.

He was brought to Boise, January 8, 1960, where he was examined by Dr. Jerome K. Burton, an orthopedic surgeon. Dr. Burton hospitalized claimant February 22, 1960, and performed a laminectomy and spinal fusion February 24th.

January 15,...