Sykes v. C. P. Clare and Co.

• Decision Date: 08 January 1980
• Docket Number: No. 12610,12610
• Citation: 605 P.2d 939,100 Idaho 761
• Parties: Donald D. SYKES, Claimant-Appellant, v. C. P. CLARE AND COMPANY, Employer, and Liberty Mutual Insurance Company, Surety, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 939

605 P.2d 939

100 Idaho 761

Donald D. SYKES, Claimant-Appellant, v. C. P. CLARE AND COMPANY, Employer and Liberty Mutual Insurance Company, Surety, Defendants-Respondents.

No. 12610.

Supreme Court of Idaho.

Jan. 8, 1980.

Rehearing Denied Feb. 15, 1980.

J. Ray Cox, Coeur d'Alene, for claimant-appellant.

Gardner W. Skinner, Jr. and William L. Mauk of Eberle, Berlin, Kading, Turnbow & Gillespie, Boise, for defendants-respondents.

DONALDSON, Chief Justice.

This appeal involves a claim for benefits under Idaho's Workmen's Compensation Laws. At issue is the entitlement of claimant-appellant, Donald D. Sykes (Sykes), to total temporary disability payments for a period of approximately one year and eight months from Liberty Mutual Insurance Co. (Liberty Mutual). A referee of the Industrial Commission heard this case in March of 1977 and issued his findings of fact and conclusions of law to the effect that Sykes was not entitled to benefits for the period extending beyond November 6, 1973. The Industrial Commission affirmed the referee's findings and conclusions in April, 1977. Sykes then brought this appeal. We affirm.

On July 26, 1972, Donald Sykes, while working at the C. P. Clare and Company, caught the heel of his shoe on a nail protruding from a step, fell down a flight of stairs and sustained a back injury. He was taken by ambulance to a hospital in Coeur d'Alene. After X-rays, an attending physician told Sykes that he had a torn, strained muscle and ligament, prescribed a muscle relaxant and told him to stay off his feet for a couple of weeks. Within two weeks of the accident, Sykes consulted a chiropractor in Coeur d'Alene for heat and massage treatments to his back, which treatments continued for the next several months.

Despite these treatments the pain in Sykes' back grew worse. Sykes' chiropractor therefore referred him to an orthopedic specialist, Dr. Bagby. Dr. Bagby conducted numerous tests and examinations of Sykes, and consulted with a Dr. Vincent, a neurosurgeon, about Sykes' problem. In April, 1973 Dr. Vincent took over treatment of Sykes. At that time Dr. Vincent indicated in a letter to Sykes, dated April 27, 1973, that there was definite evidence that Sykes had a ruptured disc in his back. However, Dr. Vincent preferred physical therapy in the form of heat and massage rather than surgery at that time in the hope that there would be some improvement within a few weeks.

In the meantime, financial difficulty caused Sykes and his family to move to Mesa, Arizona where they resided for approximately five months with his parents. Once in Arizona, Sykes made arrangements with a chiropractor to receive heat and massage treatments as Dr. Vincent had recommended. At the conclusion of the treatments, Sykes received no further medical attention in Arizona. The reasons for this are in dispute. It is undisputed, however, that from the date of the accident until September, 1973, Liberty Mutual had paid Sykes both total temporary disability payments and some medical payments for his work-related injury.

Sykes testified that during the time he was receiving therapy in Arizona, his chiropractor notified him that the surety, Liberty Mutual, refused to pay the bill for therapy. Sykes then contacted Liberty Mutual's Phoenix office which informed him that they would not pay for chiropractic treatment but that they would pay for an operation. As a result Sykes discontinued his therapy, having no funds with which to obtain further medical care. He returned to Idaho in late August of 1973. He continued receiving compensation from Liberty Mutual for his injury until September 27, 1973, at which time for reasons which are unclear from the record, Liberty Mutual terminated his compensation without notice. Liberty Mutual admits Sykes' disability to that date and does not dispute his eligibility for those benefits.

Sykes testified that at this point he contacted Liberty Mutual in Salt Lake City. Liberty Mutual informed him that because he had stopped seeing a doctor, Liberty Mutual had terminated his payments. Sykes then explained the events as they transpired in Arizona. He told Liberty Mutual that he had stopped seeing a doctor both because of the surety's refusal to pay for his physical therapy and his inability to pay any medical bills. When he told Liberty Mutual that he was attempting to get an appointment with Dr. Vincent in Idaho, Liberty Mutual assured him that they would start sending his checks again. Liberty Mutual never resumed compensation.

Apparently in connection with these phone conversations, Dr. Vincent, on October 16, 1973, wrote to Liberty Mutual. In that letter Dr. Vincent stated that he would not suggest any further treatment for Sykes. It was his feeling that Sykes' failure to return to his office since April of 1973 substantiated his opinion that the injury was not severe enough to call for further treatment. Sykes did not receive a copy of Dr. Vincent's letter of October 16, sent to Liberty Mutual.

Sykes did see Dr. Vincent on November 6, 1973. Sykes testified that he informed Dr. Vincent at that time that his condition was getting worse, and he requested surgery. Dr. Vincent declined to operate out of concern that the operation would worsen the condition of the back. Dr. Vincent suggested that Sykes lose some weight. Otherwise, as indicated in his letter to Liberty Mutual after his re-examination of Sykes, Dr. Vincent discharged Sykes from his care; although, he noted that Sykes might want to see the orthopedic specialist, Dr. Bagby. Sykes also did not receive a copy of the November 6 letter which indicated that he had been discharged from Dr. Vincent's care.

After November 1973 until March 1975, Sykes did not attempt to obtain further medical treatment. In March 1975, at the request of the Social Security Administration, Dr. William Slaughter examined Sykes. As a result of that examination the Social Security Administration concluded that Sykes' condition had stabilized. In July of 1975, the Social Security Administration terminated Sykes' social security disability payments. At this point Sykes reopened his claim for workmen's compensation from Liberty Mutual.

By agreement of the parties, Dr. Vincent again examined Sykes on September 22, 1975. On that same day Dr. Vincent wrote a letter to counsel for Liberty Mutual. That letter indicated that Sykes was still obese and unable to return to any gainful occupation; that there was still evidence of a disc rupture, but that Sykes' condition was quite improved since the last time Dr. Vincent had seen him in November 1973; and that the claimant has a permanent partial disability of 10% Of the whole man as a result of the July 1972 accident.

Sykes then filed an application for a hearing before the Idaho Industrial Commission contending that he was entitled to compensation from the time that Liberty Mutual terminated his payments on September 27, 1973 until at least July 1, 1975, by reason of his total disability during that period of time.

The hearings referee found that Sykes' total temporary disability did not extend beyond November 6, 1973. He noted that while Dr. Vincent's report of September 1975 indicated that there was some improvement in the claimant's condition in the interim, there was no medical opinion that Sykes was totally disabled after November 6, 1973. The fact that Dr. Vincent discharged the claimant from his care on November 6 indicated to the referee that Dr. Vincent did not consider Sykes to be totally disabled. In addition the claimant did not obtain medical treatment in the interim period until he began consulting Dr. Vincent in September 1975. The referee concluded as a matter of law that it was the claimant's burden to present expert medical evidence of the extent and duration of disability in order to recover income benefits for disability. This, the referee concluded, Sykes failed to do. He therefore denied Sykes benefits for the period subsequent to November 6, 1973.

We limit the scope of our review in this type of case to questions of law and determinations of whether the findings of fact in the record are supported by substantial, competent evidence. I.C. § 72-724(2); I.C. § 72-732(1); Paulson v. Idaho Forest Industries, Inc., 99 Idaho 896, 591 P.2d 143 (1979); Madron v. Green Giant Co., 94 Idaho 747, 497 P.2d 1048 (1972).

In workmen's compensation cases, the burden is on the claimant to present expert medical opinion evidence of the extent and duration of the disability in order to recover income benefits for such disability.

At his hearing before the Idaho Industrial Commission, Sykes failed to present any physicians to testify on his behalf as to the extent and duration of his total temporary disability. There were admitted into evidence, as exhibits for the commission, a physician's report by Dr. Geisen, employer's designated physician, a copy of Dr. Vincent's letter of April 27, 1973 to Sykes while Sykes was in Arizona, and a letter from Dr. Vincent to Liberty Mutual's claims adjuster. Sykes testified as to statements made to him by his doctors indicating his physical impairment, but did not support his testimony with doctor's reports, depositions or a physician's oral testimony. His testimony does not constitute medical testimony which is necessary to support his claim for compensation. As a result, he failed to satisfy the burden required in order to establish his eligibility for total temporary disability benefits. Wilson v. Carl Gilb, Inc., 94 Idaho 106, 482 P.2d 81 (1971).

This Court has held on numerous occasions that, in workmen's compensation cases there must be medical testimony supporting the claim for compensation with a reasonable degree of medical probability. Bowman v. Twin Falls Const. Co., Inc., 99 Idaho 312, 581 P.2d 770 (1978); Fisher v. Bunker Hill Co., 96 Idaho 341, 528 P.2d 903 (1974). Workmen's compensation cases, because of their medical aspects, depend upon...