Scott v. Aslett Const. Co.

• Decision Date: 31 December 1968
• Docket Number: No. 10070,10070
• Citation: 452 P.2d 61,92 Idaho 834
• Parties: Robert K. SCOTT, Claimant-Appellant, v. ASLETT CONSTRUCTION COMPANY, Inc., and Employers Mutual Liability Ins. Companyof Wisconsin, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 61

452 P.2d 61

92 Idaho 834

Robert K. SCOTT, Claimant-Appellant, v. ASLETT CONSTRUCTION COMPANY, Inc., and Employers Mutual Liability Ins. Companyof Wisconsin, Defendants-Respondents.

No. 10070.

Supreme Court of Idaho.

Dec. 31, 1968.

Rehearing Denied March 24, 1969.

John W. Gunn and Brauner, Fuller & Doolittle, Caldwell, for appellant.

Gigray, Boyd & Downen, Caldwell, for appellee.

SMITH, Chief Justice.

This proceeding arises from a personal injury caused by an accident which claimant-appellant received during the morning of October 7, 1963, arising out of and in the course of his employment as a heavy duty mechanic by respondent, Aslett Construction Company. On that date the employer had insured its workmen's compensation liability with respondent, Employers Mutual Liability Insurance Company of Wisconsin.

The injury occurred while claimant was attempting to loosen a bolt on a track roller of a caterpillar tractor. The bolt snapped as he applied a great deal of force to it, throwing him backwards to the ground. He immediately felt a 'burning' sensation, 'similar to an electric shock.' He arose, walked about for about thirty minutes, then resumed work, unaware that he had been injured. An hour or so after the accident he felt worse, and during the afternoon his supervisor sent him home. He was able to continue work for three or four days, but with increasing difficulty.

October 15, 1963, Dr. Montgomery of Caldwell diagnosed claimant as suffering hemorrhaging hemorrhoidal tags, of which he had some history, and severe back pain. The doctor then referred claimant to Dr. Baranco, a Caldwell orthopedic specialist. October 21, 1963, Dr. Baranco diagnosed deep tenderness in the muscles of claimant's lower back. He prescribed a therapeutic corset and administered daily diathermy treatments.

Almost a year earlier, November 30, 1962, claimant had previously visited Dr. Baranco, complaining of pain in his lower back and right leg. Dr. Baranco recommended postural training and flexion exercises. There were no follow-up visits. Appellant's next visit to Dr. Baranco was the October 21, 1963, visit, following the accident, and when Dr. Baranco concluded that claimant had much the same condition as in 1962.

December 5, 1963, at claimant's request, respondent surety referred appellant to Dr. Shaw, a Boise orthopedist. Dr. Shaw agreed with prior diagnoses, noting generally normal mobility and coordination, but also continued tenderness, in the lower back. He too, recommended postural exercises and utilization of a therapeutic corset. If pain continued, Dr. Shaw indicated that myelographic studies should be considered.

Claimant continued his visits to Dr. Shaw during the ensuing year; he continued to complain of a back pain, sometimes radiating into his right leg and foot. Dr. Shaw advised the continued wearing of the corset and exercise. During that period the doctor administred pain-relieving injections; also, by operative procedure, under local anesthetic, he removed a herniating fat pad, as a suspected partial source of claimant's discomfort. That treatment produced no significant improvement since claimant continued to suffer discomfort.

January 8, 1965, claimant, at his request, was examined by Dr. Burton of Boise, another orthopedic specialist, who diagnosed a disc injury in claimant's lower back; the doctor recommended a myelogram and indicative treatment.

February 23, 1965, claimant wrote the surety requesting an authorization for a myelogram. The surety refused the request by a letter dated March 30, 1965.

March 17, 1965, at respondent surety's request, claimant was again examined by Dr. Baranco, who found no evidence of a fracture or dislocation. The doctor diagnosed a degenerative but not ruptured disc, some arthritic condition, and minimal physical evidence of subjective complaints. While he did not recommend treatment, he indicated that appellant's degree of permanent disability attributable to the accidental injury was equivalent to 10% as compared to the loss of one leg at the hip. This was the only percentage rating made by any physician prior to the first award in this proceeding.

April 19, 1965, claimant petitioned the Industrial Accident Board for an award for past and future medical expenses and for compensation from December 22, 1964. Claimant alleged that he had been unable to work since that date. A hearing on the pitition was had June 2, 1965.

As a result of the hearing the board, as of August 24, 1965, approved payment by the surety of medical expenses through October 17, 1964, and payment to claimant of compensation for total disability for two separate periods, the second of which terminated December 21, 1964. It then awarded claimant compensation for a residual permanent partial disability equivalent to 25% as compared to the loss of one leg at the hip, i. e., 45 weeks at the rate of $30.00, totaling $1,350.00, payable from and after December 21, 1964.

August 25, 1965, the day after the board's award, on his own initiative and without attempting authorization from either the respondents or the board, and without notice to either, claimant arranged for a complete internist's examination by Dr. Stones of Caldwell. From August 31, 1965, through September 2, 1965, Dr. Stones caused claimant to be hospitalized at Caldwell Memorial Hospital, where additional tests (including a myelogram) were performed and x-rays taken. Dr. Stones testified concerning his findings:

'The myelogram showed disruption of the intervertbral disc between the 3d and 4th lumbar vertebrae with posterior bulging into the dural sac, the same sac which contains the spinal cord and nerve filaments on the distal end of the cord.

'The findings on the routine x-rays series: * * * Quite marked arthritic change of the apophyseal joints between the vertebrae, a disruption of the soft tissue, such as to permit a sliding forth of one vertebra on top of another, namely, the 4th lumbar vertebra in this case, and posterior disruption of a disc.

'This is precisely the cluster of findings one would expect in an injury which involved sudden and violent forceful hyperextension of the spine-the upper part of the body being suddenly thrown in a backward direction.

'My opinion was that this patient's symptoms would never be resolved * * * and that a progression of his difficulties would not be halted until such time as the lower spine was fused to stop all motion between all joints of the lower spine.'

September 23, 1965, as a result of Dr. Stones' findings, claimant filed a 'Petition for Rehearing' on the grounds '(1) That there has been a change in petitioner's condition, and (2) That since the award, new evidence has become available after petitioner had submitted himself to a myelogram stduy * * * with * * * indicated the petitioner's need for spinal surgery.'

Dr. Stones referred claimant to the Mayo Clinic in Rochester, Minnesota, where more tests and another myelogram were performed in November, 1965. Neither Dr. Stones nor appellant had informed respondents or the board, or sought their authorization, for the work of Dr. Stones or the referral to the Mayo Clinic. November 10, 1965, a physician of that clinic wrote the clinic's findings to Dr. Stones as follows:

'In view of the negative myelogram and negative neurological, but definite skeletal chages, I though it best to treat Mr. Scott with a supportive brace, exercises and heat, and see what a little further time would do for his back. He would limit his activities only by what was painful. We would like to hear from him again in three months.'

November 4, 1965, the board heard claimant's 'Petition for Rehearing.' The board rejected respondents' motion to dismiss the petition, and continued the proceeding.

February 2, 1966, claimant returned to the Mayo Clinic, where he was hospitalized until February 15, 1966. As reported in a letter dated February 11, 1966, from a physician of the clinic to Dr. Stones, claimant submitted to another myelogram and then to an exploratory operation of the right fifth lumbar and first sacral nerve roots. The doctor found what seemed to be an impingement of the fifth lumbar nerve root on the right by an enlarged hypertropic facet which also contained a loose osteocartileginous body. The nerve was decompressed and a fusion made of L-4, L-5 and sacrum.

February 22, 25 and March 8, 1966, claimant visited Dr. Stones. May 4, 1966, at the behest of the Mayo Clinic, Dr. Stones took further x-rays of claimant's lumbar spine. The doctor then concluded that fusion was not yet complete, and that claimant was still unable to do the type of work to which he was accustomed.

The doctor considered that prior to the October 7, 1963, accident claimant had more osteoarthritis than the average person of his age, but that outside of being injured, this would not have become sufficiently symptomatic to really bother the patient. It was also his opinion that the osteocartileginous fragment found and removed during exploratory surgery was the result of the trauma of Cotober 7, 1963.

May 4, 1966 (more than 6 months after the initial award of August 24, 1965), appellant filed a 'Supplemental Petition' with the board. July 15, 1966, the two petitions came before the board for hearing. Dr. Stones gave the only medical testimony at that hearing; he reiterated much of what is hereinbefore stated. At the time of the hearing the fusion was still not complete. Dr. Stones' prognosis was as follows:

'With adequate fusion obtaining the residual degree of pain will limit this patient to somewhere between a third and fifty per cent disability for the kind of work which he has been accustomed to doing.'

Subsequent to this latest hearing claimant once more visited the Mayo Clinic, again without previous authorization from respondents or the board. In a letter dated November 15, 1966, to claimant's attorney, Dr. Stones stated the following:

'A letter dated 7 ...