Magee v. Thompson Creek Mining Co.
| Decision Date | 24 January 2012 |
| Docket Number | No. 36352.,36352. |
| Court | Idaho Supreme Court |
| Parties | V.J. MAGEE, Claimant–Appellant, v. THOMPSON CREEK MINING COMPANY, Employer, and Ace Fire Underwriters Insurance Company, Surety, Defendants–Respondents. |
Fuller Law Offices, Twin Falls, for appellant. Daniel S. Brown argued.
Moffatt, Thomas, Barrett, Rock & Fields, Chartered, Boise, for respondent. Andrew J. Waldera argued.
On May 6, 2000, Appellant, V.J. Magee, sustained a work-related injury causing harm to his lumbar spine and impacting the use of his right leg, leaving Magee in chronic pain. The Idaho Industrial Commission held an administrative hearing and issued a final decision on October 15, 2004. The Commission found that Magee suffered a compensable industrial accident, that he sustained a ten percent (10%) permanent partial impairment to the whole body, and sustained a twenty percent (20%) permanent partial disability to the whole body. Magee appealed to this Court, which affirmed the Commission's 2004 decision.
While that appeal was still pending, Magee filed a second complaint with the Commission, arguing that the Commission's 2004 decision should be modified because of a change in Magee's condition. Magee argued that his case should be re-examined in order to increase his benefits. The Commission held a second hearing where additional evidence was presented. On October 21, 2008, the Commission issued a final decision, concluding that Magee failed to prove that a change in condition had occurred. The Commission also found that its earlier 2004 decision did not result in manifest injustice and that the benefit claims, which were previously litigated, were barred by res judicata. Now, Magee brings a second appeal before this Court. On appeal, Magee argues that the Commission erred in determining that Magee failed to establish a change in condition, that the Commission erred in concluding that Magee's benefits claims were barred by res judicata, and that the Commission erred in concluding that the 2004 decision did not result in manifest injustice.
Appellant, V.J. Magee, currently resides in Radersburg, a small mining town in Montana with a population of approximately 150 people. Magee has an eighth grade education, no GED, and has primarily worked as a heavy laborer in underground mines and oil fields. Magee's previous jobs included working as a miner, a millwright, and a truck driver. In 1983, Magee suffered a back injury, which took him approximately three years to recover and return to heavy labor.
In May of 2000, Magee resided in Cascade, Montana, with a population of nearly 2,000 people, and was employed by Respondent, Thompson Creek Mining Company, as a millwright in Clayton, Idaho.1 On May 6, 2000, Magee either slipped or misstepped while walking up a flight of stairs at Thompson Creek's mine, causing him to fall on his leg on the stair's landing. Magee finished out his shift, but went to the hospital later that night complaining of severe lower back pain radiating into his right leg. Magee was diagnosed with acute low back pain with sciatica and was kept in the hospital overnight to treat his pain. Magee sought treatment from his family physician, Dr. Curt G. Kurtz. Dr. Kurtz treated Magee for "acute low back strain, a stretched sciatic nerve, and an SI joint disruption" over weekly and biweekly visits. Dr. Kurtz' treatment regimen consisted of colchicine
IV injections2 to reduce swelling in the nerves and prolotherapy.
In September of 2000, Magee returned to work at Thompson Creek performing inventory in the warehouse for a period of one to five days.3 Following that period, Magee did not return to work and Dr. Kurtz faxed a letter to Thompson Creek indicating that Magee's condition prevented him from working. Then, in 2001, Magee was employed as a highway flagger for four or five months. Magee ultimately quit that job because he was concerned that the high dosage of pain medication he was taking would cause him to injure himself on the job.
Thompson Creek requested that an independent medical examination of Magee's condition be performed. On May 1, 2001, Magee was examined by Dr. Michael Sousa, an orthopedic surgeon, and by Dr. Henry Gary, a neurosurgeon, who assigned Magee a permanent partial impairment rating of ten percent (10%) to the whole body. The doctors opined that Magee's prognosis for a full recovery was poor to fair, yet concluded that he was capable of performing sedentary to light work. In June of 2001, Dr. Kurtz reviewed Dr. Sousa and Dr. Gary's findings. Dr. Kurtz concluded that Magee sustained a twenty-eight percent (28%) permanent partial impairment to the whole body. Dr. Kurtz initially agreed with Drs. Sousa and Gary that Magee could return to work in a sedentary to light capacity. However, Dr. Kurtz changed his mind and later concluded that Magee was unable to work due to his chronic pain.
In December of 2002, Magee filed a complaint for workers' compensation benefits and for reimbursement of medical expenses resulting from his employment accident. On March 17, 2004, the Idaho Industrial Commission held an administrative hearing where the referee found that Magee suffered a compensable industrial accident during the scope of his employment, sustained a ten percent (10%) permanent partial impairment to the whole body, and sustained a twenty percent (20%) permanent partial disability to the whole body. The referee also found that Magee was entitled to reimbursement for medical expenses incurred, but was not entitled to continuing medical care in the future. The Commission issued a final decision on October 15, 2004, affirming and adopting the referee's findings of fact and conclusions of law. Magee filed a motion for reconsideration of the Commission's 2004 decision which was ultimately denied. Magee then appealed to this Court on January 12, 2005 to review the Commission's findings of fact regarding Magee's permanent disability ratings and his entitlement to future medical benefits. This Court affirmed the Commission's 2004 decision, but clarified that the Commission's denial of future benefits applied only to the colchicine
injections and the prolotherapy,4 and not to other forms of recommended medical care and prescription medications.
While that appeal was still pending, Magee filed a second complaint with the Commission, arguing that the Commission's 2004 decision should be modified, pursuant to Idaho Code section 72–719, because of a change in Magee's condition. Magee further argued that his case should be re-examined under Idaho Code section 72–719(3), in order to increase his benefits in the interests of correcting manifest injustice. On May 8, 2007, the Commission held a second hearing where additional evidence was presented. At the second hearing, the Commission considered all the evidence presented at the first hearing in 2004, as well as new evidence consisting of depositions of Magee's treating physician, Dr. Kurtz, Dr. Jim Deming, Magee's psychologist, Dr. Roy Tyler Frizzell, Magee's neurosurgeon, and Mr. Crum, a vocational rehabilitation consultant.
Based on the 2007 hearing, the Commission found that Magee moved to the remote town of Radersburg, Montana, that Magee described his physical condition as "about the same as it was" during the time of the Commission's 2004 hearing, and that Magee has attempted to find employment but has been unsuccessful in maintaining a job due to pain or problems commuting. The Commission also found the following facts: Magee is not currently registered with Job Service, or any vocational agency, and receives disability benefits from Social Security of approximately $1,100 per month. Dr. Kurtz testified that Magee should not return to any form of employment because he has the tendency to over-exert himself on jobs. Dr. Kurtz stated that Magee might be able to do light-duty or part-time employment. Magee is still seeing Dr. Kurtz for treatment and is still taking pain medication daily. Dr. Deming started seeing Magee in July of 2005 to treat his depression. Dr. Deming diagnosed Magee with "major depressive disorder
with suicidal ideation related to chronic pain and attributable to the May 2000 industrial injury." Dr. Deming opined that Magee can maintain some level of work for three to five hours per day. Dr. Frizzell implanted Magee with a spinal stimulator to diminish pain signals using electrical currents. Dr. Frizzell opined that Magee could work in a light to medium work capacity. Mr. Crum testified that Magee's employment options are limited by his age, lack of skills, and physical impairments. Mr. Crum concluded that Magee "has no reasonable ability to access jobs in his labor market and attempts at employment would be futile." Nevertheless, Mr. Crum's evaluation was limited to the labor market in Radersburg and Mr. Crum acknowledged that a larger market would produce greater opportunities for employment. Mr. Crum ultimately found that Magee's employment restrictions were essentially the same as they were in 2004.
On October 21, 2008, the Commission issued a final decision and concluded that Magee failed to prove that a change in condition had occurred. The Commission also found that its earlier 2004 decision did not result in manifest injustice, and that the benefit claims, which were previously litigated, were barred by res judicata. Again, Magee filed a motion to reconsider the Commission's 2008 decision which was denied. Now, Magee brings a second appeal before this Court to review the Commission's latest decision. On appeal, Magee argues that the Commission erred in determining that Magee failed to establish a change in condition, that the Commission erred in concluding that Magee's benefits claims were barred by res judicata, and that the Commission erred in concluding that the 2004 decision did not result in manifest injustice.
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