Stevens-Mcatee v. Potlatch Corp.

• Decision Date: 15 February 2008
• Docket Number: No. 33342.,33342.
• Parties: Cheryl Ann STEVENS-McATEE, Personal representative of David Joel McAtee, deceased, Claimant-Appellant, v. POTLATCH CORPORATION, Employer, and Workers Compensation Exchange, Surety, Defendants-Respondents.
• Court: Idaho Supreme Court

179 P.3d 288

145 Idaho 325

Cheryl Ann STEVENS-McATEE, Personal representative of David Joel McAtee, deceased, Claimant-Appellant, v. POTLATCH CORPORATION, Employer, and Workers Compensation Exchange, Surety, Defendants-Respondents.

No. 33342.

Supreme Court of Idaho, Boise, January 2008 Term.

February 15, 2008.

Rehearing Denied March 26, 2008.

Smith, Cannon & Bond, Lewiston, for appellant. Ned Cannon argued.

Randall, Blake & Cox, Lewiston, for respondent. Scott Chapman argued.

HORTON, Justice.

Cheryl Ann Stevens-McAtee (Appellant), personal representative of the estate of Claimant David Joel McAtee (McAtee), deceased, appeals from an order of the Industrial Commission of the State of Idaho (Commission) denying McAtee worker's compensation benefits for the stated reason that he "failed to show his herniated disc was caused by a compensable accident."

I. FACTUAL AND PROCEDURAL BACKGROUND

McAtee started working for Potlatch Corporation (Potlatch) in 1999. He handled wood products by hand and drove a Hyster, which is an enormous specialized forklift used to move large stacks of lumber. His primary role was to move unfinished stacks from the yard to be fed into the planers. The work was fast-paced and strenuous. During a typical shift McAtee had to manually pull from 100 to 400 spacer blocks off his loads of lumber. Each spacer block weighed between 70-75 pounds and was about eight-feet long. This required McAtee to mount and dismount his Hyster repeatedly. The driver's seat was located more than six feet off the ground. To provide stability when lifting large loads, the Hyster is unsuspended except for a spring loaded seat. McAtee was a big man, reaching over 6'3" in height and weighing over 270 pounds. He claimed the seat suspension on the Hyster was insufficient for a man of his build and would bottom out when he hit bumps.

On March 9, 2004, McAtee experienced an onset of back pain, which increased in intensity throughout his shift to the point where he could no longer sit up straight. He reported his back pain to his supervisor as soon as he was able to contact him. McAtee's supervisor asked him to finish the final 45 minutes of his shift because the workload was high that night. McAtee acceded to the request. Following his shift, his back pain had reached the point where he could not tolerate standing up to do the dishes at home. The next morning Potlatch called McAtee and told him to go see a doctor before he reported back to work. McAtee did not have a doctor, so Potlatch referred McAtee to Dr. Greggain, a family practice physician whom Potlatch retained as a consultant on a contract basis for employee evaluations.

McAtee was evaluated by Dr. Greggain on March 11, 2004. Dr. Greggain ordered an MRI which revealed spinal degeneration and a herniated L5-S1 disc. McAtee's medical records indicate a prior history of back pain, minor injuries, and chiropractic care, but no evidence of previous disc herniation. McAtee was also seen by Dr. Greggain's partner, Dr. MacKay for follow-up care.

McAtee was referred by Dr. Greggain to Dr. Dietrich, an orthopedic specialist. Dr. Dietrich recommended conservative treatment including physical therapy and cortisone injections. The physical therapy was unsuccessful in improving McAtee's condition. Pain consultant Dr. Craig Flinders performed epidural steroid injections on McAtee. Dr. Flinders recommended surgery after the injections failed to alleviate McAtee's pain. Following the trial course of conservative treatment, Dr. Dietrich recommended surgical decompression and spinal fusion.

On March 29, 2004, McAtee filed a short term disability claim. On April 13, 2004, Workers Compensation Exchange (Surety) sent an inquiry form to Dr. Greggain. On the form, Dr. Greggain circled "no" in response to the question, "[o]n a more probable than not basis do you feel that Mr. McAtee sustained an injury on March 9, 2004?" and elaborated in handwriting, "I believe this is a culmination of longstanding mechanical and degenerative changes that finally led to disc failure and nerve entrapment." One week later on April 20, 2004, Surety formally denied McAtee's claim. Potlatch stated that McAtee would not be released back to work unless he had the recommended surgical procedures performed. However, because McAtee was unable to pay for these surgical procedures out-of-pocket, he was never released back to work.

Following the denial of his claim, McAtee filed a worker's compensation complaint with the Commission on October 10, 2004. In addition, McAtee sought out Dr. Colburn for an independent medical evaluation as to the cause of his injuries. At the oral hearing on the matter, McAtee testified that on March 9, 2004, he felt a "funny feeling" in his lower back when his seat bottomed out after hitting a drain ditch with his Hyster. He also testified that he hit bumps and the drain ditch all the time. The referee found McAtee's testimony about hitting the drain ditch an uncredible improvement or enhancement over his earlier more vague accounts of March 9, 2004. The referee held that, in the absence of credible testimony, and considering McAtee's history of back pain, there was no other evidence linking the events of March 9, 2004, to his herniated disc. Therefore, McAtee's claim was denied by the Commission for the stated reason that "he failed to show that his herniated disc was caused by a compensable accident." McAtee filed a motion for reconsideration which was denied by the Commission. McAtee timely appealed to this Court.

Before this matter was argued before this Court, McAtee died from reasons unrelated to this claim. His mother, Cheryl Ann Stevens-McAtee, serving in the capacity of the personal representative of McAtee's estate, was substituted as the Appellant in this case.

II. STANDARD OF REVIEW

This Court exercises free review over the Commission's legal conclusions and may substitute its view for the Commission's view. Kessler ex. Rel. Kessler v. Payette County, 129 Idaho 855, 859, 934 P.2d 28, 32 (1997). Although this Court may review the Commission's factual findings, this Court must limit its review to determining whether the Commission correctly denied benefits after it applied the law to the relevant facts. Id. Whether an injury arose out of the course of employment is a question of fact to be determined by the Commission. Id. The Commission's factual findings will not be disturbed on appeal so long as they are supported by substantial and competent evidence. I.C. § 72-732; Neihart v. Universal Joint Auto Parts, Inc., 141 Idaho 801, 803, 118 P.3d 133, 135 (2005). Substantial evidence is relevant evidence that a reasonable mind might accept to support a conclusion. Page v. McCain Foods, Inc., 141 Idaho 342, 344, 109 P.3d 1084, 1086 (2005). Credibility of witnesses and evidence is a matter within the province of the Commission. Zapata v. J.R. Simplot Co., 132 Idaho 513, 515, 975 P.2d 1178, 1180 (1999). As such, the Commission's findings on weight and credibility will not be disturbed on appeal if they are supported by substantial and competent evidence. Id.

In making our determinations, this Court "must liberally construe the provisions of the worker's compensation law in favor of the employee, in order to serve the humane purposes for which the law was promulgated." Jensen v. City of Pocatello, 135 Idaho 406, 413, 18 P.3d 211, 218 (2000) (citing Murray-Donahue v. Nat'l Car Rental Licensee Ass'n., 127 Idaho 337, 340, 900 P.2d 1348, 1351 (1995)).

III. ANALYSIS

The issue in this case is whether the Commission's finding that "McAtee failed to show his herniated disc was caused by a compensable accident" was supported by substantial and competent evidence in the record. We hold that it was not. Consequently, we reverse the order of the Commission and remand for proceedings consistent with this opinion. Furthermore, we award McAtee attorney fees and costs because the denial of his claim was unreasonable.

A. The Commission's conclusion that "McAtee failed to show his herniated disc was caused by a compensable accident" is not supported by substantial and competent evidence.

We find two points of error in the Commission's determination that "McAtee failed to show his herniated disc was caused by a compensable accident." First, the Commission's conclusion that McAtee's testimony was not credible is not supported by substantial and competent evidence. Second, the Commission's conclusion that McAtee's testimony was the only evidence linking his herniated disc to March 9, 2004, is not supported by a review of the record.

1. The Commission's finding that McAtee's testimony was not credible is not supported by substantial and competent evidence.

The Commission's denial of McAtee's claim was largely based on the Referee's finding that McAtee's testimony was not credible because he "improved" or "enhanced" his testimony by adding the specific detail about hitting the drain ditch. At the oral hearing on this matter, McAtee testified as follows:

Q. So let's go back to March 9 now of 2004. So you start your shift, tell me what you did until the 5:45, 6:00 o'clock break?

. . . .

Q. Were you suffering or having any problems physically that day up until that 5:45 to 6:00 o'clock break?

A. Felt pretty good, was going really really [sic] a fast pace shift, felt pretty good, you know, I was warmed up, was you know, getting in my grove up [sic]. I'm driving along, screaming and got my radio turned up and cussing and hollering and jumping and you know, doing my regular thing. I talk to myself. I'm pretty much — I mean there's other people out in the yard but I'm by myself, so I'll sing along to the radio or whatever the heck I do, you know.

. . . .

Q. Now, when did you — when did you get hurt that day on that shift?

A. It was right after the break, breaks are ten minutes, it was like 5:45, 6:00, somewhere in there.

Q. And what happened?

A. Picked up a load of two by ten, was...