Tupper v. State Farm Ins.

• Decision Date: 05 August 1998
• Docket Number: No. 23623,23623
• Citation: 963 P.2d 1161,131 Idaho 724
• Parties: Barbara TUPPER, Claimant-Appellant, v. STATE FARM INSURANCE, Employer, and State Farm Fire & Casualty Company, Surety, Defendants-Respondents. Coeur d'Alene, April 1998 Term
• Court: Idaho Supreme Court

Page 1161

963 P.2d 1161

131 Idaho 724

Barbara TUPPER, Claimant-Appellant, v. STATE FARM INSURANCE, Employer, and State Farm Fire & Casualty Company, Surety, Defendants-Respondents.

No. 23623.

Supreme Court of Idaho,

Coeur d'Alene, April 1998 Term.

Aug. 5, 1998.

Michael J. Vrable, Hayden, for Claimant-Appellant.

Quane, Smith, Howard & Hull, Boise, for Defendants-Respondents. Alan K. Hull argued.

SILAK, Justice.

Appellant Barbara Tupper (Tupper) appeals from a decision of the Industrial Commission

(Commission) denying worker's compensation benefits for severe pain she suffered due to answering the telephone in her job as a phone receptionist for respondent State Farm Insurance (State Farm). We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

On November 2, 1995, Tupper filed a worker's compensation complaint with the Commission seeking medical benefits for pain to her left shoulder and upper back due to the repetitive use of her left arm while answering the telephone for her employer State Farm.

The parties agreed to submit the matter upon stipulated facts. Thus, in lieu of a hearing, a Stipulation of Facts was submitted to the Commission as part of the briefing and exhibits submitted by the parties. The Stipulation stated in pertinent part as follows:

[C]laimant is seeking benefits for a condition to her neck. In the Form 1, which is the Notice of Injury and Claim for Benefits filed on October 18, 1994, it is indicated that Claimant has pain in her neck and shoulders. On October 17, 1994, Claimant was seen by Dr. Patricia Moran ... for a wellness exam. At the time of the exam, [Tupper] complained of having intermittent pain in her left medial scapular area. She indicated to Dr. Moran that she'd had this intermittently for two years and responded to massage by her husband. Dr. Moran advised her to seek physical therapy for the neck. She reported to Dr. Moran on December 1, 1994 that she was better, as she was wearing a headset. She also advised Dr. Moran that the physical therapy was not helping and Dr. Moran suggested massage.

According to a later report written by Dr. Moran on March 24, 1995, Claimant was having intermittent pain in her left medial scapular area. On approximately November 11, 1994, she began having increasingly severe pain and noticed it when picking up the phone. She was referred to physical therapy. Dr. Moran noted that the treatment was physical therapy and use of a headset to eliminate work-related aggravation of the pain. Dr. Moran noted on March 24, 1995, that Claimant had significant improvement.

...

Claimant missed no time from work. She continued in her regular duties. With the use of a headset, her symptoms have basically resolved. Claimant does not allege that she suffered a specific accident and injury as defined by the Idaho Worker's Compensation Act, that being that she did not suffer from a specific unexpected, untoward event which can be localized as to time when it occurs or place where it occurred. Rather, she noted a gradual onset of symptoms which became worse in November of 1994.

Claimant first reported her condition to her Employer on November 18, 1994. She is employed as a phone receptionist.

In January 1997, the hearing officer submitted Findings of Fact, Conclusions of Law and a Proposed Order, which the Commission adopted. The Commission then issued its decision denying Tupper's claim on the basis that (1) she had failed to prove she suffered an injury caused by an accident arising out of and in the course of her employment; and (2) she was not entitled to benefits under an occupational disease theory because she had not been disabled from work as required by Idaho Code section 72-437. Tupper appeals.

II. ISSUES ON APPEAL

1. Whether Tupper is entitled to benefits under the worker's compensation laws.

2. Whether I.C. § 72-437 and I.C. § 72-102(21)(Supp.1998) violate Tupper's right to equal protection treatment under the law guaranteed by Art. I, §§ 2 and 13 of the Idaho Constitution and the Fourteenth Amendment to the United States Constitution.

The respondents raise the following additional issue on appeal 1. Whether respondents are entitled to attorney fees on appeal pursuant to I.A.R. 11.1 and/or I.A.R. 41.

III. ANALYSIS

A. Standard Of Review.

The Commission's findings of fact will not be disturbed on appeal if they are supported by substantial and competent evidence. Reedy v. M.H. King Co., 128 Idaho 896, 899, 920 P.2d 915, 918 (1996). Where conflicting evidence is presented that is supported by substantial and competent evidence, the findings of the Commission must be sustained on appeal regardless of whether this Court may have reached a different conclusion. Id.; Soto v. J.R. Simplot, 126 Idaho 536, 539, 887 P.2d 1043, 1046 (1994). Substantial and competent evidence is "more than a scintilla of proof, but less than a preponderance. In short, it is relevant evidence which a reasonable mind might accept to support a conclusion." Matter of Wilson, 128 Idaho 161, 164, 911 P.2d 754, 757 (1996).

B. Substantial And Competent Evidence Existed To Support The Commission's Finding That Tupper Did Not Suffer An Injury Caused By An Accident Arising Out Of And In The Course Of Her Employment.

In order to be entitled to worker's compensation benefits for an injury caused by an accident, a claimant must prove he or she suffered an "accident" arising out of and in the course of his or her employment. An "accident" is defined as

an unexpected, undesigned, and unlooked for mishap, or untoward event, connected with the industry in which it occurs, and which can be reasonably located as to time when and place where it occurred, causing an injury.

I.C. § 72-102(17)(b) (Supp.1998).

In the present case, Tupper stipulated that she had been having intermittent pain in her left shoulder and upper back for two years before she sought medical attention for her condition. She further stipulated that she did "not allege that she suffered a specific accident and injury as defined by the Idaho Worker's Compensation Act, that being that she did not suffer from a specific unexpected, untoward event which can be localized as to time when it occurs or place where it occurred." Tupper stipulated that she experienced a "gradual onset of symptoms" which she eventually mentioned during a wellness exam with her family practitioner.

Tupper relies on Brooks v. Standard Fire Ins. Co., 117 Idaho 1066, 793 P.2d 1238 (1990), to support her argument that she suffered a compensable accident. She argues that her situation is similar to that of Brooks who Tupper claims was awarded compensation because he was able to identify a period of time during which he was injured even though he could not identify a specific untoward event. In Brooks, the claimant had previously fractured his right wrist. After it healed and the cast was removed, Brooks, who worked as a truck driver, testified that several times during the course of loading and unloading trucks, he experienced severe, sharp pain in his right wrist. Id. at 1067-68, 793 P.2d at 1239-40. It was later determined by expert testimony that Brooks had reinjured the wrist as a result of a series of stress fractures or "micro traumas." This Court held these "micro traumas" constituted an "accident" pursuant to I.C. § 72-102(14)(b) (current version at I.C. § 72-102(17)(b) (Supp.1998)), under the facts of that case. 117 Idaho at 1069-70, 793 P.2d at 1241-42.

Tupper's reliance on this case is misplaced. The Court has twice clarified its holding in Brooks with respect to whether a series of small traumas constitutes an accident. In Nelson v. Ponsness-Warren Idgas Enter., 126 Idaho 129, 879 P.2d 592 (1994), Nelson was diagnosed with carpal tunnel syndrome in 1980, but refused corrective surgery. Her condition worsened after beginning a job with Ponsness-Warren in 1988, where she was required to tighten screws repetitively, thus twisting and turning her hands continually. Nelson finally consented to surgery in 1989. Id. at 130, 879 P.2d at 593. The Commission found that Nelson's employment with Ponsness-Warren had aggravated her preexisting condition of carpal tunnel syndrome Although we found in Brooks that the claimant had suffered an accident, we do not hereby endorse the theory that a series of mini-traumas constitutes an accident. Unless a claimant seeking compensation for the aggravation of a preexisting condition proves that an accident as defined in I.C. § 72-102(15)(b) [1989], aggravated the preexisting condition, as Nelson has failed to do in this case, the claimant is not entitled to compensation.

                and that such aggravation was compensable as an occupational disease.  Id. This Court reversed the Commission's ruling that Nelson suffered from an occupational disease, but affirmed the ruling that Nelson suffered an aggravation of her preexisting condition.  Id. at 131-32, 879 P.2d at 594-95.   The Court held, however, that in order to be entitled to worker's compensation benefits, Nelson would have to prove that the aggravation of the carpal tunnel syndrome was precipitated by an "accident."  Id. at 132, 879 P.2d at 595.   The Court disagreed with Nelson that her case fell within the holding of Brooks, 117 Idaho at 1066, 793 P.2d at 1238
                

Therefore, we hold that since Nelson's injury cannot be attributed to an accident reasonably located as to time when and place where it occurred, the aggravation of Nelson's carpal tunnel syndrome is not compensable.

Nelson, 126 Idaho at 133, 879 P.2d at 596.

In Langley v. State, 126 Idaho 781, 890 P.2d 732 (1995), the claimant injured his knee while working as a welder in 1987. His doctor recommended surgery, but Langley refused it. Langley continued to have knee problems. In 1990, his doctor again recommended surgery to which Langley finally agreed. Id. at 783, 890 P.2d at 734. In ruling on Langley's claim for worker's compensation benefits, the Commission found that Langley had failed to prove that...