Pomerinke v. Excel Trucking Transport, Inc.
| Citation | 124 Idaho 301,859 P.2d 337 |
| Decision Date | 03 September 1993 |
| Docket Number | No. 19706,19706 |
| Parties | Stan POMERINKE, Claimant-Appellant, v. EXCEL TRUCKING TRANSPORT, INC., Employer, and Liberty Northwest Insurance Corporation, Surety, Defendants-Respondents. Coeur d'Alene, May 1993 Term |
| Court | United States State Supreme Court of Idaho |
Eberle, Berlin, Kading, Turnbow & McKlveen, Chtd., Boise, for defendants-respondents. Robert L. Berlin argued.
This is an appeal from an order of the Industrial Commission (Commission) rating a claimant's permanent physical impairment and disability beyond impairment. The issues on appeal are whether the Commission's findings of fact are supported by substantial and competent evidence, whether the Commission applied the correct test for total permanent disability and whether the Commission erred by referring to the American Medical Association (AMA) guidelines. We find that substantial and competent evidence supports the Commission's findings, the Commission correctly applied the test for total permanent disability and the Commission did not err by referring to the AMA guidelines. Accordingly, we affirm the order of the Commission.
Stan Pomerinke was injured on February 23, 1988, while working as a truck driver for Excel Trucking and Transport, Inc. (Excel). Pomerinke was pulling a tarp over the load in his truck when he slipped and fell approximately thirteen feet onto the blacktop, landing upright on the soles of his feet. He then drove his truck to the Bonner General Hospital in Sandpoint where x-rays of his back were taken. The treating physician, Dr. Robert E. Rust, Jr., noted the x-rays revealed a "slight loss of vertebral body height at C5," "straightening in the L spine" and "minimal degenerative changes in the lower T spine." Dr. Rust found "no evidence of a compression fracture."
Dr. Rust took additional x-rays on February 29, 1988. These x-rays revealed a slight compression at C5, a ten percent loss of vertebral body height and minimal foraminal narrowing at C3-4. A CT scan of the cervical spine, performed by Dr. Rust on March 2, 1988, revealed a small disc protrusion at C4-5.
Dr. Rust referred Pomerinke to Dr. Ernest C. Fokes, Jr., a Coeur d'Alene neurosurgeon. Dr. Fokes examined Pomerinke on March 11, 1988, at which time Pomerinke complained of neck pain and discomfort around his left shoulder. Dr. Fokes diagnosed a cervical sprain.
On March 25, 1988, Dr. Rust noted that a chronic cervical sprain prevented Pomerinke from working as a truck driver. On April 26, 1988, Dr. Rust cleared Pomerinke to return to driving truck without any heavy lifting. Pomerinke attempted to return to work but on May 23, 1988, he left work because of pain and increasing weakness in his left arm. In a May 27, 1988, letter to Excel's surety, Liberty Northwest Insurance Corporation (Surety), Dr. Rust indicated he had removed Pomerinke from work status and was referring him to Dr. Fokes for further consultation.
On August 8, 1988, Pomerinke began treatment with Dr. John Demakas, a neurosurgeon in Spokane, Washington. Dr. Demakas ordered an MRI which revealed a significant disc disruption and herniation at C3-4 and a bulge at the C4-5 level. Dr. Demakas performed an anterior cervical discectomy with fusion at C3-4 and C4-5 on October 20, 1988. Following surgery, Pomerinke continued to complain of pain and his left arm going to sleep.
Pomerinke underwent a second surgery on May 10, 1989, for thoracic outlet syndrome. This surgery, performed by Dr. Richard Kleaveland, improved Pomerinke's left arm and hand condition.
On June 6, 1989, Dr. Demakas authorized Pomerinke to return to work as a truck driver. Pomerinke returned to work but only worked through June 15, 1989. On August 1, 1989, Pomerinke was examined by a medical panel consisting of Dr. R.D. Luther, an orthopedist, and Dr. H.G. Copsey, a neurologist. The panel concluded:
[Pomerinke's] condition is stationary at this time and he should be closed. No further treatment other than instructions in rehab[ilitation] exercises is recommended. He should be in some other occupation. His impairment rating is Category 3 of the cervical spine to include his thoracic outlet syndrome.
Pomerinke returned to Dr. Demakas in November of 1989, for further testing and treatment. Dr. Demakas diagnosed Pomerinke as suffering from chronic pain syndrome and referred him to Dr. Merle Janes, a psychiatrist in Spokane. Dr. Janes examined Pomerinke on February 26, 1990, and recommended physical therapy and different medications to improve flexibility.
A second medical panel examination was performed on May 16, 1990, by Dr. Copsey and Dr. J.B. Watkins, an orthopedist in Spokane. The panel confirmed the conclusions of the first panel and found that Pomerinke's condition was stable. The panel concluded that no further treatment was necessary, Pomerinke should be in an occupation other than heavy duty truck driving and the claim should be closed. The panel also reiterated the first panel's impairment rating of "Category III or 20% of the whole man." The panel's impairment Pomerinke continued to consult Drs. Demakas and Fokes following the second panel evaluation. On August 23, 1990, a third independent medical evaluation was conducted by Dr. J.S. Blaisdell, an orthopedic surgeon in Sandpoint. Dr. Blaisdell concluded it was highly probable that Pomerinke's condition was permanent and stationary. He opined that Pomerinke could not continue his present occupation as a truck driver and further treatment would not likely improve Pomerinke's condition. Dr. Blaisdell formulated an impairment rating of twenty-seven percent 1 of the whole person calculated as follows:
[124 Idaho 304] rating of twenty percent was paid in full by the Surety.
I have determined that there is a 10% impairment of the whole person as a result of restricted motion in the cervical spine. He has disc disease at the C3-C4 level of the cervical spine and a similar condition at the C4-C5 level for which an allowance of 5% is made for each. His lifestyle has been seriously affected by this injury for which I suggest a 5% impairment. Pain, both at rest and worse during exertion, accounts for another 5%. When these values are combined, the result is a 27% impairment of the whole person.
On October 15, 1990, Pomerinke was examined by Dr. Dennis Goldberg of Hayden Lake, Idaho. Dr. Goldberg practices industrial and occupational medicine but is not board certified in any medical specialty. Dr. Goldberg opined that Pomerinke's permanent physical impairment rating amounted to thirty-two and one-half percent calculated as follows:
Permanent Partial Impairment for cervical spine sprain, two level discogenic disease, post operative, 10 percent whole man. Permanent Partial Impairment for cervical spine lack of mobility is rated at 10%. Permanent Partial Impairment for significant life style change should be considered as 5%. An allowance for pain is 7.5% percent whole man. This is based on the fact that [Pomerinke] will require ever increasing dosages of analgesic medication, contributes to his depression and arises without notice. Therefore I would rate [Pomerinke] at 32.5 percent whole man from a physical point of view.
Based on the foregoing, the Commission found that Pomerinke had met his burden of proving his February 23, 1988 industrial accident arose out of the course and scope of his employment with Excel. The Commission also made the following findings: (1) The independent medical panel's May 16, 1990 award of a permanent physical impairment rating amounting to twenty percent of the whole person is appropriate and benefits associated with that rating have been paid in full; (2) Pomerinke failed to make a prima facie showing that he made an adequate search for other employment and that there is no suitable occupation available to him. Thus, he is not totally and permanently disabled by reason of being "odd-lot"; and (3) Pomerinke is entitled to an award of disability beyond impairment amounting to three and one-half percent of the whole person because of non-medical factors set forth in I.C. § 72-430.
On appeal, Pomerinke argues the Commission's findings of fact are not supported by substantial and competent evidence, the Commission applied the wrong test for total permanent disability and the Commission committed reversible error by referring to AMA guidelines.
Pomerinke challenges a number of the Commission's findings of fact. We will Pomerinke challenges the finding by the Commission that he is entitled to a permanent physical impairment rating amounting to twenty percent of the whole person. This rating was formulated by two separate medical panels. Thus, substantial and competent evidence supports this finding. While Drs. Goldberg and Blaisdell formulated higher impairment ratings, this Court will defer to the Commission's findings as to the credibility of conflicting medical experts. Ross v. Tupperware Mfg. Co./Premark, 122 Idaho 641, 643, 837 P.2d 316, 318 (1992).
[124 Idaho 305] not address each of these disputed findings since many are inconsequential in that they have no bearing on the Commission's ultimate conclusions of law. With respect to the disputed findings of fact which are material, we focus on whether substantial and competent evidence supports the Commission's findings. I.C. § 72-732. In assessing whether an order of the Commission should be set aside because it is not supported by substantial and competent evidence, we do not try the matter anew by weighing the evidence and acting akin to a trial court. Monroe v. Chuck & Del's, Inc., 123 Idaho 627, 629-630, 851 P.2d 341, 343-44 (1993). Nor are we concerned with whether this Court would have reached the same conclusion based upon the evidence...
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