O'Loughlin v. Circle A Const.

• Decision Date: 29 May 1987
• Docket Number: No. 16367,16367
• Citation: 739 P.2d 347,112 Idaho 1048
• Parties: Michael R. O'LOUGHLIN, Claimant-Appellant, v. CIRCLE A CONSTRUCTION, Employer, and Northern Insurance Company of New York, Surety, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 347

739 P.2d 347

112 Idaho 1048

Michael R. O'LOUGHLIN, Claimant-Appellant, v. CIRCLE A CONSTRUCTION, Employer, and Northern Insurance Company of New York, Surety, Defendants-Respondents.

No. 16367.

Supreme Court of Idaho.

May 29, 1987.

Kenneth L. Pedersen and Curtis Webb (argued), of the firm Webb, Burton, Carlson & Pedersen, Twin Falls, for claimant-appellant.

Karen L. Lansing, of the firm Hawley, Troxell, Ennis & Hawley, Boise, for surety, defendants-respondents.

BISTLINE, Justice.

The claimant, Michael O'Loughlin, has been employed primarily as a truck driver. On November 10, 1984, O'Loughlin was driving a truck hauling sugar beets within the course of his employment for Circle A Construction, when he blacked out momentarily. Although he regained consciousness before there was an accident, and the truck did not leave the highway, O'Loughlin was badly frightened by the incident. He received no physical injuries from the incident. After informing his supervisor and after resting for a while, he decided to return home. He did not work the next day. On the day following, he saw a doctor and returned to work two weeks later. He continued driving without incident until he was laid off from this season's employment.

O'Loughlin began work next with Basterrechea Trucking in Gooding and worked without incident for Basterrechea Trucking until February of 1985 at about which time he became concerned about having another blackout while driving; he suffered symptoms of chest pains, shortness of breath, and had difficulty sleeping. Frequently, he would wake up in the middle of the night with visions of red lights, such as tail lights or police lights, which disturbances would sometimes last into the daylight hours. O'Loughlin was affected by this anxiety to the extent that he quit his employment with Basterrechea Trucking. With the exception of one trip in March or April of 1985, he has not driven a truck since.

Circle A and its surety have made not even a suggestion that O'Loughlin is a malingerer. On the contrary, the record indicates that he is a hard-working family man who took pride in his work. O'Loughlin's treating psychologist testified as follows:

[MR. NIELSON] Q: In your discussion with him did you find him to be a person with a psychological make up who enjoyed driving truck?

[DR. KAUFMAN] A: Without a doubt. He would talk about it with great pride. He spoke about his lack of any accidents on-the-job, about having occasions where he was considered the best truck driver, therefore he could--in line for the best truck and--well, he always spoke very, very positively about it.

....

Q. Okay. What significance do you attribute to the fact that he continued to drive for at least a month or a month and a half before he started having these panic disorder problems?

A. Well, I think that's pretty characteristic of Michael as I have come to know him. He loses a job one day; he finds one the next. I mean, that's what he has always done....

....

Q. You mentioned that as a result of your evaluation of the MMPI test that he didn't appear to be someone who was trying to fake a problem.

In your discussions with him has there been any indication or anything that you have noticed on your part that would indicate to you that Michael is making up the problems that he is having right now?

A. No, I really don't think so at all. He has been so consistent in the way he has presented himself and reported various facts that I have no reason to disbelieve him based on what he said.

And the MMPI was just, I think, a little extra support for that assurance. There was no impression management or attempt to fake bad on there as we sometimes see of people. Tr., pp. 54, 64, 65-66.

O'Loughlin had a previous experience in which he blacked out while driving in 1972. Medical testing completed after the 1972 incident and after the incident in 1984 here at issue failed to disclose a known medical cause of O'Loughlin's blackouts and no medical evidence relating to cause was presented to the Commission.

Dr. Charles R. Kaufman, Ph.D., a clinical psychologist licensed by the state of Idaho who was treating O'Loughlin, testified that the panic disorder developed as a result of the November 10, 1984 incident. Dr. Kaufman further testified that panic disorder is usually triggered by some kind of frightening event, or trauma, and that the panic disorder consists of producing random occasions of fear and anxiety which are attributable to a patient's past terrifying incident.

Dr. Kaufman did not establish that panic disorders, such as the one diagnosed in O'Loughlin, are peculiar to truck driving. He indicated that between two and four percent of the population suffers from some sort of panic disorder. However, he testified that it was the combination of O'Loughlin's blackout together with the fact that he was, at the time, driving a truck which resulted in his becoming disabled by the panic disorder.

The claimant's timely application for a hearing, stated that he became disabled as a result of a panic disorder which was caused by a blackout while driving a truck on November 10, 1984.

When the matter was presented to the Industrial Commission, by stipulation of counsel, the hearing was limited to the issue of compensability. O'Loughlin's employer, Circle A Construction, and its surety, had answered denying that O'Loughlin's panic disorder was compensable on the basis that it had not arisen out of the claimant's employment.

The Commission made the following specific finding of fact: "The record indicates that Claimant is disabled from truck driving because of the panic disorder and that the disorder developed from Claimant's fear of experiencing another blackout while he is driving truck." R., p. 10 (emphasis added). The commission's conclusions of law were somewhat in the same vein:

It is not necessary to address many of the issues raised by the parties, such as whether or not Claimant's panic disorder is an occupational disease within the meaning of the Workmen's Compensation Act. Although there is no question that Claimant suffers from a disability as a result of his panic disorder, Claimant has not sustained his burden of proving that the disorder itself arises out of his employment.

The evidence established that Claimant's anticipatory anxiety is directed toward an apprehension of a further blackout while driving truck. According to the uncontroverted testimony, and the findings above, this fear is the result of Claimant's blackout of November 10, 1984 while he was driving truck within the course and scope of his employment. The precipitating cause of the panic disorder is not truck driving, however, but the blackout that Claimant experienced and his fear of a recurrence. There is no evidence relating to the cause of the blackout itself, and therefore, Claimant cannot establish that the blackout, and the panic disorder which results from it, arises out of Claimant's employment. Claimant cannot prevail without establishing this causal connection, through expert medical testimony. Green v. Columbia Foods, Inc., 104 Idaho 204 [657 P.2d 1072 (1983) ]; Sykes v. C.P. Clare & Co., 100 Idaho 761 [605 P.2d 939 (1980) ]. R., pp. 10-11 (emphasis added).

This appeal requires us to address the following issues: (1) Whether the Industrial Commission correctly applied the principles of causation; (2) Whether the Commission correctly ruled that the causal connection between O'Loughlin's panic disorder and his employment must be established through expert medical testimony.

The scope of our review on appeal from decisions of the Industrial Commission is limited to questions of law. Madron v. Green Giant Co., 94 Idaho 747, 497 P.2d 1048 (1972); Idaho Const. Art. 5 § 9, 1935 amendment. In reviewing Commission findings of fact, we may set aside a finding only where it is not supported by substantial competent evidence. Gradwohl v. J.R. Simplot Co., 96 Idaho 655, 534 P.2d 775 (1975); I.C. 72-732(1) (1973).

But here the pertinent facts are uncontroverted. Instead, the issues turn upon the proper application of the law to the undisputed facts. Thus, both issues enumerated above involve a review of questions of law. Hix v. Potlatch Forests, Inc., 88 Idaho 155, 159, 397 P.2d 237, 241 (1964), citing Johnston v. A.C. White Lumber Co., 37 Idaho 617, 217 P. 979 (1923); Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227 (1924). The standard is one of free review. The Honorable Donald L. Burnett, Jr., of our Court of Appeals, has written: "An appellate court is expected to declare the law and may substitute its view for that of a trial court or agency upon a legal issue." Standards of Appellate Review in State and Federal Courts, § 3.2, p. 3-3, Idaho Appellate Handbook (Idaho Law Foundation, Inc., 1985).

I.

Although the Industrial Commission concluded that the sole cause of O'Loughlin's panic disorder was the blackout he experienced, it made no analysis of the role of claimant's truck driving employment as a contributing cause. Our prior cases establish that a claimant's employment need not be the only cause of disability, but rather that the job must have contributed to the disability:

" 'It is sufficient to say that an injury is received "in the course of" the employment when it comes while the workman is doing the duty which he is employed to perform. It arises "out of" the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises "out of" the employment. But it excludes an injury which cannot fairly be traced to the...