Monroe v. Chuck & Del's, Inc.

• Decision Date: 23 April 1993
• Docket Number: No. 19633,19633
• Citation: 123 Idaho 627,851 P.2d 341
• Court: Idaho Supreme Court
• Parties: Daniel N. MONROE, Claimant-Appellant, v. CHUCK & DEL'S, INC., Employer, and Idaho State Insurance Fund, Surety, Defendants-Respondents. Boise, January 1993 Term

Page 341

851 P.2d 341

123 Idaho 627

Daniel N. MONROE, Claimant-Appellant, v. CHUCK & DEL'S, INC., Employer, and Idaho State Insurance Fund, Surety, Defendants-Respondents.

No. 19633.

Supreme Court of Idaho,

Boise, January 1993 Term.

April 23, 1993.

[123 Idaho 628] Byron Meredith, Nampa, for claimant-appellant.

Karl M. Shurtliff, Boise, for defendants-respondents.

McDEVITT, Chief Justice.

BACKGROUND AND PRIOR PROCEEDINGS

On May 15, 1990, Daniel N. Monroe ("Monroe"), who had been employed by respondent, Chuck & Del's, Inc. ("Chuck & Del's"), as an air conditioning and heating system servicer and installer, filed a worker's compensation application for hearing. Monroe alleged that on April 29, 1987, he "injured his back when installing a window air conditioner," causing "disc herniation at L4, 5 and L5, S1." He framed the issue as "[w]hether or not [he] is entitled to medical, PPI and permanent disability benefits."

On June 1, 1990, the State Insurance Fund filed its answer to the application for hearing. Among other things, it denied that notice of injury was given to the employer within sixty days of the accident or that Monroe was permanently disabled, it admitted that Monroe was temporarily disabled from September 28, 1987 through February 7, 1988, and it asserted that Monroe's "current condition is the result of subsequent activity and therefore not related to the alleged injury of April 29, 1987."

A hearing was held on October 12, 1990, in Boise, Idaho, before a referee. On September 20, 1991, the referee issued findings of fact, conclusions of law, and proposed order. The referee's recommendation was based upon the oral and documentary evidence adduced at the hearing, post-hearing depositions, and briefs of counsel. The referee stated the issues as:

(1) Whether the Claimant's symptoms associated with a bulging disc at the L5-S1 level are related to the April 29, 1987 injury;

(2) Whether the Claimant is entitled to medical care and workers' compensation benefits for these additional symptoms;

(3) Whether the Claimant is entitled to a permanent partial impairment rating as a result of the April 29, 1987 injury;

(4) Whether the Claimant is entitled to a permanent partial disability rating exceeding the impairment rating; and

(5) Determination of the amount of any impairment and disability rating.

Among other things, the referee found that Monroe suffered a "new and distinct injury in July of 1989," and concluded that "[s]ince [Monroe's] new symptoms are not the direct and natural consequence or result of his 1987 injury, he is unable to recover workers' compensation benefits for the condition," ¹ and that he "does not have a permanent partial disability which exceeds the permanent physical impairment rate of 10% of the whole person" because he "has not established any non-medical factors which increase his disability above the permanent physical impairment rate." Finally, the referee proposed that Monroe be allowed income benefits for permanent partial disability of 10% of the whole person for fifty weeks, but be denied benefits for his herniated disc at the L5-S1 level. The Industrial Commission of the State of Idaho ("Commission"), after conducting a de novo review of the record, adopted the referee's proposal on September 20, 1991.

ANALYSIS

We address the following issues raised by Monroe:

I. Is there substantial competent evidence to support the Commission's finding that Monroe is not entitled to benefits for problems associated with a bulging or herniated disc at the L5-S1 level because his 1989 injury is not causally related to his 1987 injury?

II. Is there substantial competent evidence to support the Commission's denial of permanent disability benefits above the 10% permanent partial impairment rating?

I. IS THERE SUBSTANTIAL COMPETENT EVIDENCE TO SUPPORT THE COMMISSION'S FINDING THAT MONROE IS NOT ENTITLED TO BENEFITS FOR PROBLEMS ASSOCIATED WITH A BULGING OR HERNIATED DISC AT THE L5-S1 LEVEL BECAUSE HIS 1989 INJURY IS NOT CAUSALLY RELATED TO HIS 1987 INJURY?

A. Standard of Review.

This Court has appellate jurisdiction over orders of the Industrial Commission. Idaho Const. art. V, § 9. The conditions, scope, and procedure on appeal from an order of the Commission may be provided by the legislature. Idaho Const. art. V, § 9. In this regard, the legislature has limited this Court's ability to set aside a decision of the Commission to the following four grounds:

(1) The commission's findings of fact are not based on any substantial competent evidence;

(2) The commission has acted without jurisdiction or in excess of its powers;

(3) The findings of fact, order or award were procured by fraud;

(4) The findings of fact do not as a matter of law support the order or award.

I.C. § 72-732.

In regard to the first ground for setting aside an order of the Commission, our review of the Commission's findings of fact "does not entail a de novo determination of fact." ² Graham v. Larry Donohoe Logging, 103 Idaho 824, 825, 654 P.2d 1377, 1378 (1982), citing I.C. § 72-732. In other words, this Court does not try the matter anew, acting as a trial court does in weighing the evidence before it. Rather, "[w]e are not concerned with whether this Court would have reached the same conclusion, but rather, with whether the findings by the Commission are supported by substantial, competent evidence." Graham, 103 Idaho at 825-26, 654 P.2d at 1378-79.

B. Application of the Standard of Review.

Monroe alleges that the Commission erred in concluding that his 1989 injury was not a work-related injury. This conclusion rests wholly upon the testimony of an expert witness, Dr. Gary Botimer, a physician who treated Monroe after the 1987 and 1989 injuries. A review of the transcript of his deposition discloses that he testified that Monroe's "symptoms are from the second" injury. Further, Dr. Botimer testified that between the time of the surgery following the 1987 injury and the 1989 injury, Monroe was asymptomatic. While there may be conflicting testimony, or testimony capable of different interpretations, in Dr. Botimer's deposition testimony, this Court is not in the business of weighing evidence in Industrial Commission cases. The above-stated testimony of Dr. Botimer constitutes substantial competent evidence in support of the Commission's conclusion that the 1989 injury is not causally related to the 1987 injury and, therefore, not a compensable work-related injury.

We note that the present case is not controlled by this Court's decision in Johnson v. Boise Cascade Corp., 93 Idaho 107, 456 P.2d 751 (1969). In Johnson, the claimant suffered an on-the-job back injury. After the injury, he underwent surgeries and recurrences of back pain. Approximately three years after the accident, he slipped while attempting to get into a pickup truck and immediately experienced back pain. He underwent more treatment. The second incident was an off-the-job accident. On appeal, this Court affirmed the Commission's award to the claimant, holding that "the 'pick-up truck' accident was not an overriding trauma which superseded respondent's previous history" and that "the facts in this case support the Board's conclusion that the 'pick-up truck' incident aggravated a pre-existing condition...." Johnson, 93 Idaho at 11-12, 456 P.2d at 755-56. In the present case, there was no pre-existing condition, as Monroe was asymptomatic after the 1987 injury. It was not until the 1989 ditch-cleaning incident that Monroe first experienced symptoms indicative of the type of injury he suffered.

II. IS THERE SUBSTANTIAL COMPETENT EVIDENCE TO SUPPORT THE COMMISSION'S DENIAL OF PERMANENT DISABILITY BENEFITS ABOVE THE 10% PERMANENT PARTIAL IMPAIRMENT RATING?

The Commission ruled:

Though the evidence shows that the Claimant has some increased difficulty in performing his current employment and requires assistance with heavy lifting at times, at least part of this increased difficulty is attributable to the July 19, 1989, incident at home, rather than to the April, 1987, work-related injury. The Claimant's rate of earnings is higher at the present time than it was at the time of his injury. The Claimant has not established any non-medical factors which increase his disability above the permanent physical impairment rate. The Referee therefore concludes that the Claimant does not have a permanent partial disability which exceeds the permanent physical impairment rate of 10% of the whole person.

Regarding appellant's impairment rating, the referee found:

During his deposition, Dr. Botimer for the first time expressed an opinion concerning an impairment rating for the disc injury at the L4-5 level and surgery which had been performed in November of 1987. He estimates that the Claimant has a 10% impairment of the whole person as a result of that injury. The Defendants do not dispute that impairment rating.

. . . . .

The Referee finds that the Claimant has a permanent physical impairment of 10% of the whole person as a result of the April 29, 1987, injury for which he is entitled to income benefits. The Claimant has not established that non-medical factors increase the Claimant's permanent partial disability above the impairment rating. The Referee, therefore, finds that the Claimant has a permanent partial disability of 10% of the whole person as a result of the April 29, 1987, injury which includes consideration of the permanent physical impairment and pertinent non-medical factors.

The claimant bears the burden of proving disability in excess of his or her impairment rating. Seese v. Ideal of Idaho, Inc., 110 Idaho 32, 34, 714 P.2d 1, 3 (1985). "The test for such determination is not whether the claimant is able to work at some employment, but rather whether the physical impairment, taken in conjunction with nonmedical factors, has reduced the claimant's capacity for gainful activity." Seese, 110 Idaho at 34, 714 P.2d at 3.

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