Sweeney v. Great West Transp.

• Decision Date: 14 January 1986
• Docket Number: No. 15809,15809
• Citation: 714 P.2d 36,110 Idaho 67
• Parties: Michael J. SWEENEY, Claimant-appellant, v. GREAT WEST TRANSPORTATION, Employer, and Industrial Indemnity Company, Surety, Defendants-respondents.
• Court: Idaho Supreme Court

Page 36

714 P.2d 36

110 Idaho 67

Michael J. SWEENEY, Claimant-appellant, v. GREAT WEST TRANSPORTATION, Employer and Industrial Indemnity Company, Surety, Defendants-respondents.

No. 15809.

Supreme Court of Idaho.

Jan. 14, 1986.

Gardner W. Skinner, Jr., Boise, for claimant-appellant.

Kenneth C. Howell, of Hawley, Troxell, Ennis & Hawley, Boise, for defendants-respondents.

BAKES, Justice.

Appellant Michael J. Sweeney (hereinafter claimant) appeals an order of the Industrial Commission denying his claims for additional workmen's compensation benefits. Claimant argues on appeal that the commission erred in holding that: (1) he did not present any medical evidence to support his claim of disability for the period between June 28, 1983, and July 16, 1983; (2) he failed to present evidence sufficient to establish a causal connection between an elbow injury suffered in February, 1984, and on-the-job accidents in June and July of 1983; (3) he was not entitled to payment of medical expenses incurred as a result of the February injury; and (4) he was not entitled to attorney fees based on the finding that the surety had not acted unreasonably in denying benefits in February. We find substantial, competent evidence in the record to support all of the commission's holdings except for the first. We therefore affirm in part, reverse in part, and remand.

Claimant began working as a long haul truck driver for respondent Great West Transportation, Inc., in May, 1983. In June, while on a trip for respondent, claimant injured his left forearm in the area of his elbow. The injury occurred in Massachusetts on June 22, 1983, while loading 55-gallon drums of frozen orange juice; one of the barrels slipped off a pallet and slammed claimant into the side of the trailer. Despite the injury, claimant continued on the trip, returning to Boise on June 27, 1983. He gave oral notice of the injury to his employer the following day, June 28, 1983. Claimant remained off work for the following two and a half weeks. During that period, when offered a chance to drive a load, claimant declined because of the injury. ¹ However, during this time claimant did not see a doctor, nor was he requested to do so by his employer.

Claimant returned to work on July 16, 1983, driving on a longhaul trip to Florida. One day into the trip, while in Wyoming, the tractor-trailer broke down. In the process of attempting repairs, specifically adjusting the transmission linkage on the tractor, claimant again injured his left elbow. This time the injury was severe enough that claimant sought medical attention at a nearby hospital. He was prescribed pain medication and told to see a specialist upon his return to Boise. Notice of this injury was given to respondent on July 18, 1983, by telephone. Claimant returned to Boise on July 27, 1983, and was terminated the following day. ²

Written notice of both injuries was filed August 1, 1983, and claimant subsequently saw Dr. Floyd Johnson for treatment on August 2, 1983. Claimant was under Dr. Johnson's care until December 24, 1983. Dr. Johnson instructed claimant not to work for thirty days. Dr. Johnson also had claimant examined by Dr. Richard Wilson, a neurologist. Dr. Wilson first examined claimant on August 11, 1983, at which time he determined, via EMG tests, that claimant suffered no nerve damage in the injured arm. Dr. Wilson later concluded that claimant's injury was a soft tissue injury, i.e., a contusion of the elbow. Following these examinations claimant was placed on total temporary disability (TTD) benefits from July 28 through October 26, 1983, at which time he was given a work release by Dr. Johnson. However, the problem continued and claimant was again placed on TTD benefits on November 21, 1983. At Dr. Johnson's request, Dr. Wilson again saw claimant on December 9, 1983. Dr. Wilson recommended that claimant be released for light duty work for two weeks, following which he could be released to full duty work. Pursuant to Dr. Wilson's recommendation, claimant was released to full work status on December 24, 1983, at which time his TTD benefits also terminated.

Following his full work release, claimant was unable to find work as a truck driver. During the months of January and February, the only work that he performed was cutting firewood for himself and a neighbor. He again began to experience pain in his arm and, in February, 1984, upon his counsel's recommendation, saw Dr. Michael O'Brien. Dr. O'Brien diagnosed the claimant's primary problem as a epicondylitis (tennis elbow), and recommended that he refrain from any physically strenuous type of activity in order to permit the elbow to heal. Claimant did not inform either Great West Transportation or its surety that he was going to another doctor.

On February 15, 1984, claimant's counsel contacted employer's surety and requested that the surety immediately place claimant back on TTD benefits and reimburse him for expenses incurred in visiting Dr. O'Brien. The surety declined the request to reinstate the benefits based in part upon a telephone conversation with Dr. O'Brien in which he stated to the surety that claimant's problems were not related to the prior industrial accidents.

On April 5, 1984, claimant moved for an emergency hearing on the questions of reinstatement of TTD benefits and payment of medical expenses incurred with Dr. O'Brien. The matter was heard before a commission referee on May 4, 1984, with the later addition of deposition testimony by Doctors O'Brien and Wilson.

The Industrial Commission entered its order denying relief in every instance on July 19, 1984. Claimant timely moved for reconsideration. The motion for reconsideration was denied on October 17, 1984. This appeal followed.

I

In its findings of fact and conclusions of law the commission held that claimant was not entitled to TTD benefits for the two and a half week period between the first and second accidents of June and July, 1983. The commission's decision was based entirely on its finding that claimant had failed to present "any medical evidence" which would support his claim for benefits. Claimant contends that this conclusion is erroneous and without support in the record. We are inclined to agree.

In Sykes v. C.P. Clare & Co., 100 Idaho 761, 605 P.2d 939 (1980), we stated the general rule that claims for workmen's compensation benefits must be supported by medical testimony. Sykes, 100 Idaho at 764, 605 P.2d at 942. However, we also specifically stated that compliance with this rule did not require a claimant to be under the care of a physician at the time of the alleged disability in order to successfully claim benefits. "Whether an individual is disabled is not determined by whether that person is under the care of a physician but whether that person has suffered a decrease in wage earning capacity." Id.

Our review of the record indicates that even though claimant did not see a physician during the two and a half week period, there is medical evidence ³ which, when coupled with claimant's testimony ⁴ and surety's admissions, ⁵ could permit a finding of temporary disability. We therefore remand this issue to the commission for further consideration and weighing of the evidence to determine if claimant is entitled to TTD benefits for the period June 28 through July 16, 1983.

II

Claimant next contends the commission erred in holding that he failed to establish a causal connection between the on-the-job accidents of June and July, 1983, and his later complaints of injury in February of 1984. Claimant argues that there is substantial competent evidence to support his theory of causal connection and none to support the commission's conclusion. We disagree.

Claimant's argument when viewed in its best light at most establishes a conflicting view of the evidence before the commission. It is by now axiomatic that the weighing of conflicting evidence is left to the sound discretion of the Industrial Commission and will not be overturned on appeal unless its conclusion is clearly erroneous, i.e., unsupported by substantial competent evidence on the record.

In making its determination the commission had before it the testimony of two examining physicians, Drs. O'Brien and Wilson, both neurologists. The record discloses the following with regard to their testimony. Dr. O'Brien testified that claimant's current problems were causally connected to his prior accidents of June and July, 1983. Dr. Wilson testified to the contrary. Dr. O'Brien diagnosed claimant's condition in February, 1984, as epicondylitis, tennis elbow. Dr. O'Brien stated that this condition was an irritation or inflammation of the extensor muscles and accompanying tendons connected at the elbow region of the forearm. Dr. Wilson diagnosed claimant's earlier injury as "a left elbow contusion," i.e., a soft tissue injury. Dr. Wilson also testified that when he examined claimant in April, 1984, claimant localized his current complaint somewhat differently than he did in the August, 1983, examination immediately after the June and July incidents. Dr. O'Brien did not see claimant until February, 1984, some seven months after the last on-the-job accident. Dr. Wilson, on the other hand, saw claimant shortly after his June and July, 1983, injuries; again prior to his work release in December, 1983; and again in April, 1984, prior to the hearing before the commission.

With this medical evidence before it, the commission chose to resolve any conflict between Doctors O'Brien and Wilson in favor of Dr. Wilson.

"The [commission] gives greater weight to the testimony of the physician who saw the Claimant both in August of 1983 and subsequently in December, 1983, and April, 1984, and his conclusions that the Claimant had suffered a contusion from which he could have been, and was, released without restriction in December of 1983."

We hold there is substantial competent evidence to support the...