Ross v. Tupperware Mfg. Company/Premark

• Decision Date: 01 September 1992
• Docket Number: No. 18973,18973
• Parties: Mary Lou ROSS, Claimant-Appellant, v. TUPPERWARE MANUFACTURING COMPANY/PREMARK, Employer, and Standard Fire Insurance Company, Surety, and State of Idaho, Industrial Special Indemnity Fund, Defendants-Respondents. Boise, February 1992, Term
• Court: Idaho Supreme Court

Page 316

837 P.2d 316

122 Idaho 641

Mary Lou ROSS, Claimant-Appellant, v. TUPPERWARE MANUFACTURING COMPANY/PREMARK, Employer, and Standard Fire Insurance Company, Surety, and State of Idaho, Industrial Special Indemnity Fund, Defendants-Respondents.

No. 18973.

Supreme Court of Idaho,

Boise, February 1992, Term.

Sept. 1, 1992.

M. Karl Shurtliff, Boise, for claimant-appellant.

Imhoff & Lynch, Boise, for respondent surety and employer. Thomas P. Baskin, III argued.

Benoit, Alexander, Sinclair, Doerr, Harwood and High, Twin Falls, for State of Idaho, Indus. Sp. Indem. Fund. Thomas B. High argued.

Before BAKES, C.J., BISTLINE, JOHNSON and McDEVITT, JJ., and REINHARDT, J. Pro Tem., by designation of the Court.

PER CURIAM.

I

The claimant, Mary Lou Ross, was employed by the Tupperware Manufacturing Company. On October 23, 1987, while at work, she stumbled over a pallet and fell on her right side and hip. She left work early that day because of the pain in her hip and back. The following day she reported for work, but was given a different job where she could work in a sitting position. She continued with her work at Tupperware and did not lose any time from work until she was laid off when the plant closed.

After the accident she sought treatment from several doctors in hopes of relieving the pain she was experiencing. On November 3, 1987, the claimant told Dr. John Howar that she had chronic pain in the right groin from hip arthritis which pre-dated the accident and also had lumbar pain which was attributed to arthritis in the spine, but that the pain had increased following the fall at work on October 23, 1987.

The pain continued to increase. In September of 1988, Dr. Howar suggested replacement of the hip as a possible course of treatment for the problem. Claimant saw Dr. Jeffrey Hessing, a Boise orthopedic surgeon on October 19, 1988. He recommended that she undergo a right total hip replacement. A further opinion was obtained by Dr. Warren Sorensen, an orthopedic surgeon at Sun Valley, Idaho, in January, 1989. He also recommended hip replacement surgery. On June 29, 1989, Dr. Dennis Gordon, a Salt Lake City, Utah, orthopedic surgeon performed hip replacement surgery on the claimant.

Claimant applied for worker's compensation benefits and sought a finding that the costs related to this procedure were compensable as the result of her October 1987 accident. The matter was assigned by the Commission to referee Robert C. Youngstrom, who conducted a hearing on November 1, 1989. Claimant argued she was entitled to recover medical expenses related to the replacement of her hip and that she was entitled to temporary disability income benefits subsequent to that procedure. After taking evidence on the cause, the referee concluded that the dispositive issue was whether "the Claimant's accident permanently aggravated or accelerated the development of the osteoarthritic condition of the claimant's right hip, so as to necessitate the performance of the surgical procedure at an earlier date than it would have been performed in the absence of the accident."

The referee concluded that the claimant had failed in her burden of proof because she had not established by a preponderance of the evidence that the fall bore a causal relationship to the performance of the surgical procedure with a reasonable degree of medical probability. Of particular importance is Finding of Fact XIV:

In summary, the Referee finds that the physicians who examined the Claimant in close proximity to her accident do not indicate a probability that the Claimant's underlying condition was permanently aggravated or accelerated by the accident. There is clearly a difference of opinion between the physicians who examined her a year or more following the accident as to the effect of the accident and injury upon the underlying condition. The Referee finds the opinion of Dr. Hessing to be more persuasive because it appears to the Referee that Dr. Hessing has a more accurate history and description of the Claimant's pre-existing condition and symptoms than does Dr. Gordon. The Referee has also examined the records of Claimant's medical treatment for a period of time prior to her injury, which appear in Exhibit 1, sub-part 9, which disclose that the Claimant had been diagnosed as having osteoarthritis prior to the injury and that her hospitalization in September, 1987, prior to the injury, was apparently for gastric problems which could have been precipitated by excessive use of aspirin, which in one report is stated to be 10 to 12 aspirin per day. The report indicates that the Claimant had arthritis in her large joints and had been taking Clinoril, which is a medication prescribed for arthritis and is the same medication prescribed subsequent to her injury. The Referee believes that the history obtained by Dr. Slickers and Dr. Howar that the Claimant had significant problems with her right hip and leg prior to the...