Poss v. Meeker Mach. Shop, 15811

• Decision Date: 24 December 1985
• Docket Number: No. 15811,15811
• Citation: 712 P.2d 621,109 Idaho 920
• Parties: Randy POSS, Claimant-Appellant, v. MEEKER MACHINE SHOP, Employer, and Argonaut-Northwest Insurance Company, Surety, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 621

712 P.2d 621

109 Idaho 920

Randy POSS, Claimant-Appellant, v. MEEKER MACHINE SHOP, Employer, and Argonaut-Northwest Insurance Company, Surety, Defendants-Respondents.

No. 15811.

Supreme Court of Idaho.

Dec. 24, 1985.

Steven C. Verby, Esq., of Grudem, Verby, Elsaesser & Jarzabek, Sandpoint, for claimant-appellant.

John W. Barrett, of Moffatt, Thomas, Barrett & Blanton Chartered, Boise, for defendants-respondents.

Jon M. Steele, and Lynn M. Luker, Boise, for amicus curiae, Idaho Trial Lawyers Ass'n.

DONALDSON, Chief Justice.

On March 11, 1982, appellant, Randy Poss, was working for his employer when a piece of sheet iron weighing between 300 and 400 pounds fell on his back. He sustained injury to his back, neck and shoulders. He was treated by Dr. Frank Cipriano, an orthopedic surgeon in Sandpoint, Idaho.

Poss returned to work in May of 1982, but since he was unable to move or lift heavy objects, he left work in July and was placed on temporary total disability.

Dr. Cipriano referred Poss to a neurosurgeon in Spokane. Thoracic outlet syndrome was diagnosed and Poss underwent surgery on October 5, 1982. The surgery involved removal of a portion of Poss's left first rib.

Poss continued to have considerable pain in his spine and was prescribed pain medication by Dr. Cipriano. Poss was also referred to a physical therapist, Steven Heinrich, who treated Poss from October 21, 1982 through June 1, 1983. Dr. Cipriano has diagnosed Poss's condition as a chronic strain syndrome. Although there is little objective evidence to explain Poss's continued complaints of severe back pain, Dr. Cipriano has noted some muscle spasms in Poss's back and mild scoliosis or curvature in Poss's thoracic spine. It is uncertain whether this is specifically attributable to Poss's injury. Dr. Cipriano rated Poss's permanent physical impairment at between 25% and 30% of the whole man.

On February 7, 1983, at the request of the employer's insurance company, respondent, Argonaut-Northwest Insurance Company (Argonaut), Poss was examined by a panel of three Spokane doctors. The panel rated Poss's impairment as 6% of the whole man secondary to the thoracic outlet surgery [109 Idaho 922] and 5% of the whole man for the dorsal spine injury. The panel concluded that because of the limitation on his activities Poss could not return to the same line of work, but he could engage in other lines of work. The psychiatrist on the panel found no psychiatric problems.

On December 20, 1983, a second panel of doctors from Spokane examined Poss. It made no changes in Poss's impairment rating and noted very few objective manifestations of Poss's pain. The panel also found Poss's condition was stable and further treatment was unnecessary. The panel found that physical therapy could not provide any cure for Poss's chronic condition. Dr. Luther, a member of the second panel, testified that any tenderness in Poss's spine was probably not connected with such an old injury.

Poss is limited in his activities at home and on his farm in that he cannot lift or pull heavy objects. His personality has changed somewhat since the injury and he has lost about 35 pounds. He has difficulty riding in motor vehicles, particularly on the rough country road to his house.

Argonaut ceased paying for any of Poss's medical expenses after the first panel examination on February 7, 1983. On September 13, 1983, Poss filed a petition for an emergency hearing before the Industrial Commission requesting that Argonaut pay his outstanding medical bills, primarily for pain medication and physical therapy. Poss also requested an order directing Argonaut to cover all future medical bills. The petition for an emergency hearing was denied.

On October 12, 1983, Argonaut notified the providers of Poss's medical services of its decision to stop paying Poss's bills, but did pay all bills incurred up to that date. Poss incurred bills of $171.80 between October 12 and December 20, 1983, the date of the second panel's examination. Poss has incurred further expenses for medical services since that date.

On February 27, 1984, the Industrial Commission heard Poss's case. Poss and four of his witnesses were present in person, and all other evidence, primarily the medical testimony, was presented through deposition and other documents. The commission issued its Findings of Fact and Conclusions of Law on October 31, 1984.

The commission stated that in this case it was inclined to give greater weight to the recommendations of the medical panels which examined Poss, than to Dr. Cipriano, Poss's treating physician, since he may be biased by his feelings towards his patient. The commission found little in the way of objective evidence to explain Poss's complaints of chronic pain, and adopted the panels' finding that Poss has a permanent physical impairment of 11% of the whole man caused by the accident.

The commission found there were a number of jobs within a 50-mile radius available at the time which Poss could perform. These included retail sales and certain service work. Poss would suffer some wage loss at first, since he had been making $6 an hour when the accident occurred, as well as some limitations based on his subjective complaints of pain and his inability to drive long distances. Therefore, the commission awarded Poss an additional 15% of the whole man as a permanent disability award for these nonmedical factors.

The commission concluded that Poss did not require any further medical treatment, rejecting Dr. Cipriano's recommendation for continuing pain medication. It did, however, award Poss expenses for medical services rendered up until December 20, 1983, the date of the second panel examination (a total of $171.80).

Based on Poss's permanent partial disability of 26% of the whole man, the commission awarded Poss $133.10 per week for 130 weeks commencing from February 17, 1983. Although Poss was awarded $171.80 for medical expenses incurred prior to the date of the second panel's examination, the commission found Argonaut had not acted unreasonably in terminating or delaying payment of medical bills upon receipt of the first medical panel's evaluation. Poss therefore, was not entitled to attorney fees under I.C. § 72-806.

I.

Poss first argues that since most of the evidence, including all of the medical testimony, before the Industrial Commission was presented by written record rather than through personal appearances, this Court is not bound by the fact findings of the commission. Hence, Poss argues, this Court can review the facts and reach its own conclusion with respect to an impairment rating. Poss cites Graves v. American Smelting & Refining Co., 87 Idaho 451, 394 P.2d 290 (1964) for this purpose.

Poss's citation is correct, however, that rule has long since been abandoned by this Court. Most recently in Nigherbon v. Ralph E. Feller Trucking, Inc., 109 Idaho 233, 706 P.2d 1344 (1985) we held that "[r]egardless of whether witnesses have personally appeared before the Industrial Commission, this Court's review is restricted to determining whether findings of fact by the Industrial Commission are supported by substantial competent evidence." Id. at 234, 706 P.2d at 1345; Horner v. Ponderosa Pine Logging, 107 Idaho 1111, 1113-14, 695 P.2d 1250, 1252-53 (1985); Mager v. Garrett Freightlines, Inc., 100 Idaho 469, 471, 600 P.2d 773, 775 (1979); Booth v. City of Burley, 99 Idaho 229, 580 P.2d 75 (1978); Gradwohl v. J.R. Simplot Co., 96 Idaho 655, 534 P.2d 775 (1975). We stated in Booth, in fact, that decisions suggesting a contrary result, such as Poss argues in the present case, were overruled. Booth, supra, at 232, 580 P.2d at 78.

II.

Poss next argues that the Industrial Commission erred by not taking into consideration the subjective factors of pain and Poss's unique living conditions and lifestyle when it arrived at its permanent impairment evaluation. He claims in particular that the panel of Spokane doctors misinterpreted Idaho Worker's Compensation Law, specifically I.C. § 72-424, when it excluded from its evaluation these subjective factors. The commission's conclusions, Poss argues, were, therefore, tainted by the medical panels' erroneous assumptions.

We agree that I.C. § 72-424, which must be read in conjunction with I.C. § 72-422, clearly suggests that such factors should be taken into account in arriving at a permanent impairment evaluation. The employee cannot be evaluated in objective isolation since the rating must accurately reflect how this particular employee has been affected in his ability to conduct his customary lifestyle. However, we find no merit in Poss's argument that the panel of doctors completely misinterpreted Idaho law, and therefore, their recommendation tainted the commission's conclusion. The testimony of Dr. Luther, who was on the first panel of examining physicians, clearly indicates that the panel did take into consideration Poss's subjective complaints of pain. In his deposition, when asked about the permanent physical impairment, Dr. Luther said,

"Well, it is not strictly impairment. It is supposed to be strictly impairment but we take in subjective things which we feel belong in it. We don't take other factors that you do when you are talking about disability, such as education, age, training. We don't take those things. We take the subjective complaints."

It is also clear from the record that Dr. Luther and his fellow doctors on the panel relied on the same American Medical Association guidelines that an Idaho doctor would have relied on in arriving at an impairment evaluation. Those guidelines include the consideration of subjective factors such as complaints of pain.

It is clear from the record that the commission also independently considered these subjective and nonmedical factors when it added a permanent disability award to Poss's impairment rating. The commission stated:

"In addition to the Claimant's permanent...