Presnell v. Kelly

• Decision Date: 23 June 1987
• Docket Number: No. 16527,16527
• Citation: 740 P.2d 43,113 Idaho 1
• Court: Idaho Supreme Court
• Parties: Dorothy Mae PRESNELL, Claimant-Appellant, v. Lucy KELLY, dba/Lynwood Norge, Employer, and United States Fidelity & Guaranty Company, Surety, Defendants-Respondents.

Page 43

740 P.2d 43

113 Idaho 1

Dorothy Mae PRESNELL, Claimant-Appellant, v. Lucy KELLY, dba/Lynwood Norge, Employer, and United States Fidelity & Guaranty Company, Surety, Defendants-Respondents.

No. 16527.

Supreme Court of Idaho.

June 23, 1987.

Emil F. Pike, Twin Falls, for claimant-appellant.

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

HUNTLEY, Justice.

On December 26, 1979, Dorothy Mae Presnell was removing solvent-soaked clothing from a washing machine, which had mechanically failed, when she felt a sharp pain in her back radiating down her leg and suffered a disc herniation at the L5-6 level. Mrs. Presnell was employed by Lynwood Norge Cleaning to operate dry cleaning machines, mop floors and clean the washers and dryers.

After the injury, Presnell underwent a laminectomy for a protruded disc. In the course of surgery, a blood vessel was accidentally severed and later repaired. Presnell filed a malpractice claim against the doctor involved and settled that third-party proceeding, netting $4,534.13 after deduction of expenses and attorney fees. The surety, United States Fidelity & Guaranty Company paid all of Presnell's medical expenses incurred relative to the repair of the damage caused by the alleged malpractice and did not waive any right of subrogation for the amount paid to repair the artery.

[113 Idaho 2] Since the accident, Presnell has suffered from low back pain and bilateral leg pain, particularly in the left leg. Presnell has not sought employment since the accident occurred, having stated to Doctors Holt and Wilson that she would lose her worker's compensation benefits if she found a job.

Presnell contends that she is at least 50% permanently disabled, which entitles her to permanent partial disability benefits due to decreased earning capacity. The Industrial Commission found that Presnell suffered a permanent partial disability of 15% of the whole man (including a permanent physical impairment of 7 1/2% of the whole man) as a result of her injuries. The commission further ordered that the award be reduced by $4,543.13, the amount received by Presnell pursuant to recovery from the malpractice suit.

Presnell argues that surety United States Fidelity & Guarantee Company has no right of subrogation to that extent and argues that the commission did not adequately consider pain as a factor in her permanent disability rating.

The Industrial Commission based its impairment and disability ratings, in part, upon the testimony of Dr. Richard Wilson, a neurologist. The commission also relied upon the testimony of Dr. William Tregoning, an orthopedic surgeon, Dr. Stephen Asher, a neurologist, and Dr. Eric Holt, a psychiatrist. In addition, the commission considered the testimony of two rehabilitation experts, David Brower and William S. Bronson.

We first address the issue of whether there exists substantial, competent evidence to support the Industrial Commission's finding that Presnell is entitled to a permanent partial disability rating of 15% of the whole man.

Appellate review of Industrial Commission orders is limited. The findings of the commission will be upheld if supported by substantial, competent evidence. In Case of Graham, 103 Idaho 824, 825-26, 654 P.2d 1377, 1378-79 (1982), this Court held:

Appellate review of findings of fact made by the Industrial Commission is limited in scope. Idaho Const. art. 5, § 9; I.C. §§ 72-724, -732; Gordon v. West, 103 Idaho 100, 103, 645 P.2d 334, 337 (1982); Curtis v. Shoshone County Sheriff's Office, 102 Idaho 300, 303, 629 P.2d 696, 699 (1981); Sykes v. C.P. Clare & Co., 100 Idaho 761, 605 P.2d 939 (1980); Paulson v. Idaho Forest Industries, Inc., 99 Idaho 896, 591 P.2d 143 (1979). This review does not entail a de novo determination of fact. I.C. § 72-732. We are not concerned with whether this Court would have reached the same conclusion, but rather, with whether the findings by the commissions are supported by substantial, competent evidence. (Citations omitted).

Dr. Wilson's initial examination showed evidence of an injury to the L5 nerve root, affecting Presnell's left leg. An EMG conducted in May 1980 showed sub-acute left L5 radiculopathy. Wilson believed that Presnell was stable by July 1981. He found a normal range of motion of the lumbar spine and no definite abnormality on sensory testing. He also found that Presnell's reflexes were normal and that the results of the neurological examination were objectively normal. Wilson also testified that Presnell's pain was a reflection of stress and exaggerated by the claimant's personality. He estimated the claimant's permanent impairment at 10% of the whole man.

In August 1983, Presnell was evaluated by a panel of physicians, which consisted of Dr. William R. Tregoning, Dr. Stephen Asher and Dr. Eric Holt. Dr. Tregoning presented testimony that Presnell's complaints of pain were not supported by objective medical findings. He further testified that Presnell had the capacity to work either at Lynwood Norge or in a convenience store, and he would have given Presnell a permanent physical impairment rating of 5% of the whole man. Dr. Holt noted that Presnell appeared agile and quick in her movements and that this agility evidenced a lack of pain.

Dr. William S. Bronson, a psychologist with experience in the field of rehabilitation, admitted that there was no medical

[113 Idaho 3] evidence to support Presnell's complaint that she had limited use of her left arm and left foot. In addition, Dr. Bronson acknowledged that he could find no medical restrictions of Presnell's ability to walk, stand, sit, run, climb, push or pull. Dr. Bronson listed several jobs which Presnell was capable of performing after her injury: ward clerk, parking lot attendant, record clerk, telephone operator, proofreader, cashier, and sorter

Presnell argues that the commission failed to consider her pain as a factor in determining the permanent physical disability rating. However, pain is specifically referred to in the commission's findings. In addition, Dr. Wilson and Dr. Holt indicated that Presnell seemed to be exaggerating her complaints of pain. This Court has held that the amount of disability to be attributed to the factor of pain is a determination for the Industrial Commission when arriving at a permanent disability rating. In Knapp v. Brotherton's, Inc., 102 Idaho 403, 404, 630 P.2d 690, 691 (1981), the claimant, as in the instant action, contended that the commission had not given sufficient consideration to the factor of pain in making its award of disability. The court, however, noted that the medical experts indicated that the claimant suffered mild to moderate pain and that they had considered the factor of pain when they rated her disability:

The commission found that claimant-appellant suffered mild to moderate pain and considered the factor of pain in their determination of disability. Those findings, which as to both form and content are commendable, are supported by substantial and competent evidence and in turn support to the award to claimant-appellant of a partial permanent disability of 20% of the whole person. Hence, they will not be disturbed on appeal. (Citations omitted).

The 15% rating by the commission is supported by substantial and competent evidence and is, in fact, higher than the figures offered by Doctors Tregoning and Wilson. Hence, there is no basis upon which to overturn the Industrial Commission decision rating Presnell's disability at 15% of the whole person and its finding in that regard is affirmed.

We next address whether the Industrial Commission erred in ordering an offset of $4,534.13 of Presnell's total award of $7,961.25 to the defendants pursuant to I.C. § 72-223 for payments made for Presnell's medical expenses incurred due to medical malpractice. ¹

Subrogation is the substitution of one person in the place of another with reference to a legal right. City of New York Ins. Co. v. Tice, 152 P.2d 836, 839 (Kan.1944). Black's Law Dictionary defines subrogation as "The right of one who has paid an obligation which another should have paid to be indemnified by the other." Black's Law Dictionary 1279 (5th ed. 1979). Subrogation for third party liability is known as legal subrogation. The purpose of legal subrogation is to work out an equitable adjustment between parties by assuring that the discharge of an obligation be paid by the person who in equity and good conscience ought to pay it. Id. at 839. Memphis and L.R.R. Co. v. Dow, 120 U.S. 287, 7 S.Ct. 482, 30 L.Ed. 595 (1887). An additional purpose of subrogation for third party liability is to prevent the injured claimant from obtaining a double recovery for an injury. Schneider v. Farmers Merchant, Inc., 106 Idaho 241, 245, 678 P.2d 33, 37 (1983).

During surgery, Presnell suffered a negligent cutting of the iliac artery, and this required immediate corrective surgery. The record is devoid of any finding by the commission as to the amount, if any, that the surety paid relative to the surgery for repair of the iliac artery, although the briefing of the parties assumes that the

[113 Idaho 4] surety paid for the second surgery. Likewise, no part of the 15% disability rating was attributable to the cutting of the artery

The surety argues it should receive the entire $10,000, less attorney fees, but cites no authority for the proposition. If the surety were given the requested amount, it would be nothing but a windfall to the surety based upon trauma to Presnell's body.

In fact, the colloquy of counsel before the commission indicates they did not understand or argue that the surety should participate in any windfall for the medical malpractice recovery above that paid out to repair the damage to the iliac artery or compensate for extended care necessitated by that repair. In stipulating that the surety had paid out on this case at least the sum of $4,534.13 netted by Mrs....