Smith v. State
| Decision Date | 07 June 2019 |
| Docket Number | Docket No. 45674 |
| Court | Idaho Supreme Court |
| Parties | Kevin R. SMITH, Claimant-Appellant, v. State of Idaho, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant-Respondent. |
Starr Kelso Law Office, Coeur d'Alene, for appellant. Starr Kelso argued.
Jones, Brower & Callery, PLLC, Lewiston, for respondent. Thomas W. Callery argued.
Kevin Smith appeals from an order of the Idaho Industrial Commission that concluded the Idaho Industrial Special Indemnity Fund (ISIF) was not liable to him for worker's compensation benefits. The Commission determined that Smith failed to prove he was totally and permanently disabled under both the 100% method and the odd-lot worker method. He also appeals from a motion for reconsideration that was denied by the Commission, where he alleged that the Commission determined disability at a future date rather than the date of the hearing, that it improperly interpreted a report, and that it improperly considered an excluded exhibit. We affirm the Commission's order.
In July 1997, a second-story balcony railing Kevin Smith was leaning on gave way, plunging him towards the ground and fracturing both his heels. Dr. Edward Tapper performed surgery on Smith's left heel and put casts on both feet. Smith could not walk for over a year, nor could he work in general construction as he was doing before the accident. A few months after the injury, Smith was evicted from his apartment and was forced to live in a car with his wife and infant.
After his injuries healed he continued experiencing pain in his heels, leading him to realize that he would be unable to work at a job that required copious amounts of standing and walking, so he set out to become a plumber. He obtained employment as an apprentice and eventually become a skilled plumber. Smith discontinued follow-up appointments for his heels with Dr. Tapper in 1998 upon moving to Reno, Nevada, where he continued working as a plumber. While working in Reno, Smith consistently worked as a plumber but changed employers frequently.
Not wanting to raise a family in Reno, Smith moved his wife and two children to Coeur d'Alene, Idaho, in 2006, and began working as a service manager for a plumbing company. A couple months into employment, Smith slipped on ice while working and injured his left wrist. Dr. Richard Mattis with North Idaho Physicians diagnosed Smith with a left wrist sprain
accompanied by a possible fracture, treating him with pain medications and a splint. Smith returned to work on light duty but continued having pain in his left wrist and fingers. After physical therapy failed to relieve the pain, he was referred to Dr. Peter Jones, a hand and wrist surgeon, who opined that exploratory surgery of the wrist was needed. Dr. Joseph Welch, a plastic surgeon, conducted a review of Smith's injury and suggested that surgery not be undertaken until the wrist had a longer time to heal. Nevertheless, in July of 2007, Dr. Jones performed surgery on Smith's wrist and removed a fracture fragment.
After Smith's surgery, his employer no longer had a need for his position and fired him. Smith attempted a small plumbing repair in his own home after recovering and discovered that he could hardly use a screwdriver without pain in his wrist. Dr. Jones noted that Smith was struggling with depression after his wrist injury
because of apparent concerns of future employability. Smith underwent an independent evaluation with Dr. Brinkman, a plastic surgeon, who recommended that Smith see a psychologist for treatment of depression. Smith was authorized by the employer's insurance for five psychiatric visits with Dr. David Wait, who diagnosed Smith with "major depression, single episode, severe." Dr. Wait noted that it appeared Smith's depression stemmed from "his current inability to work," and suggested individual therapy and antidepressants as treatment. Smith was prescribed Celexa and referred to a licensed clinical professional counselor, Emily Hart, meeting with her three times.
On December 12, 2007, Dr. Welch conducted an independent medical examination on Smith and determined that his wrist was now fixed and stable, and that his left upper extremity had a 9% permanent impairment. Dr. Welch also observed that Smith's severe depression was likely a result of his wrist injury
, and that he would not be able to return to work without his psychiatric issues first being addressed. After this examination, Smith's worker's compensation benefits exhausted and he was referred to the Idaho Department of Health and Welfare Regional Mental Health Services for psychiatric care. He began treatment with Regional Mental Health Services in February 2008 for major depression disorder. He began receiving counseling and treatment for depression by Dr. Rhodes and other licensed counselors.
In May 2008, still unemployed and being treated for depression, Smith became violently angry with his wife during a marital dispute. He was arrested and taken to the hospital on a police hold. Dr. Eric Heidenreich performed a psychiatric evaluation, determined he was depressed, and released him after a day. Smith denied any use of illegal substances when asked, but tested positive for marijuana while in the care of the hospital.
Smith continued treatment with Regional Mental Health Services after this incident, but he began harboring significant resentment and anger towards his wife for calling the police during their dispute, and for not working at a job that paid well through his unemployment. He was also not satisfied with the medicine the psychiatrist was prescribing, trying five different medications and rejecting them all. In August 2008, Dr. Marie Parkman, a psychologist, prepared a report concerning Smith's treatment at Regional Mental Health Services and concluded that he had not progressed very far in his treatment. She opined that he was having difficulties with major depression
and ongoing panic attacks because of difficulties in personality functioning. She also stated that he would be a good candidate for vocational rehabilitation because of his above-average intelligence, but his ongoing litigation was complicating his recovery from depression. In her report, Dr. Parkman also noted that Smith was untruthful about his marijuana use because he reported only smoking marijuana as a teenager, but tested positive for marijuana in his urine twice and thereafter confessed that he received a ticket in Oregon for possession of marijuana. She believed that marijuana use was probably exacerbating Smith's mood difficulties.
On October 27, 2008, a hearing was held before Referee Alan Taylor with the Industrial Commission of the State of Idaho to determine whether Smith was entitled to benefits for psychological injuries from his wrist
accident pursuant to Idaho Code section 72-451. Kevin Smith testified at the hearing, and a June 25, 2008 deposition was introduced as an exhibit. Through Smith's testimony, it was revealed that he had been untruthful towards many of his health care providers. Specifically, he failed to tell providers—and lied during his deposition—that he had served in the U.S. Army and had been dishonorably discharged due to marijuana use. Smith also admitted that he told providers that he had done drugs in Holland, when he has never actually been to Holland. He also had been untruthful to Dr. Wait about substance abuse because he "didn't open up fully to him." He also admitted that he was not being honest at all with his counselor Emily Hart because he thought her attractive and wanted to impress her with a fantasy alter-ego, telling her that he had changed his name, that he had done exciting things in Holland, and that he had a history of committing crimes.
After the hearing, a deposition was conducted of the Employer/Surety's psychologist, Dr. Ronald Klein. The deposition was thereafter admitted, along with a psychological evaluation of Kevin Smith. In Dr. Klein's report, he concluded that "[t]he depressive symptomatology noted by treaters and IME evaluators alike is not a product of his wrist injury
... They have been characteristic of his functioning for the past 20 years." Instead of diagnosing him with major depression like most other treaters, Dr. Klein diagnosed Smith with adjustment disorder and mixed personality disorder with emotionally dependent and narcissistic features. He explained that Smith functions like a maladjusted child and is "impulsive, self-focused, oblivious to other's needs, and irritated at being held accountable for his actions." Dr. Klein further explained that Smith tells falsehoods because he reacts to the impulse of the moment. Smith's self-perception in life centers around four main failure experiences: (1) his dishonorable discharge from the Army; (2) his heel injury in 1997; (3) his wrist injury in 2007; and, (4) his arrest in 2008 wherein he tore up his home. In Dr. Klein's opinion, the reason Smith was suffering from depression and not working was because he "has something to pin his failure in life on." Ultimately, Dr. Klein concluded that "[t]he ‘therapy’ for [Smith] is to get him back to work, either by re-offering vocational assistance or by closing his claim and thereby creating an incentive to resume work."
Dr. Tim Rehnberg, a psychologist hired by Smith, also reviewed medical records and conducted interviews with Smith, diagnosing him with adjustment disorder with anxiety
and chronic depressed mood, pain disorder, and mixed personality disorder. His opinion was that Smith's wrist injury had a causal relationship with his psychological condition, and that he had no substance abuse issues at the time of testing. During his deposition, Dr. Rehnberg admitted that he did not review the entirety of Smith's medical records. While he thought Smith was definitely immature, he thought that Dr. Klein's use of the term "maladjusted child" was harsh....
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