Hеlen MAPUSAGA, Claimant-Respondent, v. RED LION RIVERSIDE INN, Employer, and Employers Insurance of Wausau, Surety, Defendants-Respondents, and State of Idaho, Industrial Special Indemnity Fund, Defendant-Appellant.
No. 16411.
Supreme Court of Idaho.
June 11, 1987.
Rehearing Denied Sept. 30, 1987.
748 P.2d 1372
DONALDSON, Justice.
L.M. Luker, of Goicoechea Law Office, Boise, for claimant-respondent, Mapusaga.
Gardner W. Skinner and Robert D. Lewis (argued), of Cantrill, Skinner, Sullivan & King, Boise, for defendants-respondents, Red Lion Riverside Inn.
DONALDSON, Justice.
This is an appeal from a decision of the Industrial Commission involving a claim for Worker‘s Compensation benefits wherein the commission found the claimant, Helen Mapusaga, totally and permanently dis-
The factual and procedural history of this case is complex. We will address only those facts relevant to this decision. Mapusaga worked as a maid at the Red Lion Inn in Boise. The primary injury giving rise to the worker‘s compensation claim occurred when Mapusaga pulled a bedspread onto a bed and immediately suffered an onset of backpain in her lower back.
At the time of her injury, claimant was seeing Dr. Lamarr Heyrend for psychiatric problems and had previously been a patient of Dr. Eric Holt, another psychiatrist, for four to five years. Apparently, the claimant‘s psychiatric disorder was rooted in her childhood when she suffered numerous physical and mental abuses inflicted by both her parents. The psychiatric problems have remained with claimant throughout her adult life. It has caused directly or indirectly extensive alcohol and drug abuse, and numerous suicide attempts. Claimant has been hospitalized in the mental ward of St. Alphonsus Hospital in Boise, Idaho, on numerous occasions, and has been an involuntary patient at the Idaho State Hospital in Blackfoot.
One of claimant‘s suicide attempts is relevant here. In 1980, after an argument with one of her sons, she shot herself with a rifle. As a result of this injury, the claimant suffered restricted use of her left arm, and hand and finger dexterity were substantially reduced.
Claimant‘s employment history has been sporadic. Since the early 1970‘s, she has held a number of jobs, all for short periods of time. Her most stable employment was as a maid, but she also had managed apartments, worked with a janitorial business and with a linen supply company. All of her employments were interrupted by periods of drinking, mental disorders, and other psychiatric рroblems.
As a result of the back injury, the claimant filed an application for a hearing with the Industrial Commission. The case was heard before a referee, where the claimant offered testimony. Subsequently, additional testimony in the form of depositions was submitted by several doctors and a vocational rehabilitation specialist. The commission issued an order containing findings of fact and conclusions of law. In this order the commission found that claimant was not capable of employment in any wellknown branch of the labor market as the result of the back injury and the psychiatric disorder. The commission determined that the clаimant suffered a 5% of the whole man impairment caused by the back injury, and in addition a 10% of the whole man disability caused by nonmedical factors such as age, education, and transferable job skills. Thus, ruling that the claimant was totally and permanently disabled, the commission held the employer/surety responsible for permanent/partial disability of fifteen percent of the whole person based on claimant‘s back injury and on the nonmedical factors. However, the commission relying on the doctrine announced by this Court in Hartley v. Miller-Stephan, 107 Idaho 688, 692 P.2d 332 (1984), ruled that the claimant could not recover for the pre-existing psychiatric injury because she lacked рhysical manifestations of the disorder. Thus, the ISIF was not held accountable for any portion of claimant‘s disability.
The claimant filed a motion for reconsideration challenging many of the findings of fact. The commission never ruled on the
With the additional impairment rating of Dr. Burton, the commission issued a new opinion. In this opinion, the ultimate outcome changed substantially. First, the commission found that claimant‘s self-inflicted injury to her arm and the impairment rating thereon constitutes a pre-existing physical impairment for the purpose of the ISIF‘s threshold liability,
The ISIF filed a motion for reconsideration and rehearing challenging the new substituted opinion and order. Specifically, the ISIF challenged the commission‘s action in reopening the record and taking evidentiary testimony of a doctor not subject to cross-examination by the ISIF and in not allowing the ISIF to submit additional evidence regarding Dr. Burton‘s testimony. The commission denied the motion. The ISIF has appealed raising five issues: (1) whether the commission erred in refusing to consider evidence that claimant was capable of engaging in some limited employment; (2) whether a self-inflicted injury is a permanent physical impairment within the “subjective hindrance” standard of
I
We turn initially to the commission‘s finding that claimant is totally and permanently disabled. The prerequisite to ISIF liability is a finding of total and permanent disability.
The claimant has the burden of establishing a prima facie case of total disability within the odd-lot category. Gordon v. West, 103 Idaho 100, 645 P.2d 334
Once the claimant meets her initial burden, the burden then shifts to the ISIF to show that some kind of suitable work is readily and continuously available to the claimant. Reifsteck v. Lantern Motel & Cafe, 101 Idaho 699, 619 P.2d 1152 (1980). The ISIF argues that there is sufficient evidence to indicate that after the injury, claimant has worked for several employers doing baby-sitting and elderly care-taking. The claimant has testified that she had no difficulty doing this work. Thus, the ISIF argues that there is suitable work available for the claimant which disputes the finding of total disability.
However, claimant has provided evidence from expert medical testimony indicating that she should avoid stress and not work alone. Also there is evidence that baby-sitting and elderly care-taking jobs are very sporadic. Finally, two psychiatrists and a rehabilitation expert testified that these occupations were inappropriate for the claimant, and, in fact, dangerous to those whom she cares for. Thus, we conclude that the ISIF has not shown that there is suitable work for the client. Therefore, we agree with the findings of the Industrial Commission that claimant is totally and permanently disabled within the odd-lot category.
II
We now turn the second issue raised by the ISIF. The commission ruled that the claimant‘s arm injury was a permanent physical impairmеnt within the meaning of
72-332. Payment for second injuries from industrial special indemnity account.-
...
(2) ‘Permanent physical impairment’ is as defined in
section 72-422, Idaho Code , provided, however, as used in this section such impairment must be a permanent condition, whether congenital or due to injury or disease, of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining re-employment if the claimant should become employed. This shall be interpreted subjectively as to the particular employee involved, however, the mere fact that a claimant is employed at the time of the subsequent injury shall not create a presumption that the pre-existing permanent physical impairment was not of such seriousness as to constitute such hindrance or obstacle to obtaining employment.
Thus, the ISIF is liable when a pre-existing permanent physical impairment combines with a work-related injury to make an employee permanently and totally disabled. We must address whether, in the context of this case, the claimant‘s
The present language of the statute was amended in 1981 to include the “subjective hindrance” test. Prior to 1981, this Court had articulated an “objective” test to be used when determining whether a claimant had a pre-existing permanent physicаl impairment. The objective test focused on whether a reasonable employer would consider the impairment on an ordinary claimant (not the actual claimant) a hindrance or obstacle. This Court expressed the test in Curtis v. Shoshone County Sheriff‘s Office, 102 Idaho 300, 629 P.2d 696 (1981):
” ‘Permanent physical impairment’ is any permanent condition which reasonably could constitute a hindrance or obstacle to obtaining employment or reemployment. A hindrance or obstacle to obtaining employment or reemployment would exist if the preexisting permanent condition would reasonably cause a potential employer to be reluctant to hire а person because of concern such as the person‘s preexisting condition made him a less capable worker, a greater risk in terms of getting injured, or a greater risk in terms of the amount of potential permanent disability that the worker would suffer from an injury. Actual hindrance to one‘s attempts at obtaining employment is not required.” Id. at 305, 629 P.2d at 701.
However, the legislature has changed the emphasis from any claimant to the specific claimant involved. Under the objective test, a particular claimant who is not hindered by an impairment could still qualify for permanent disability as long as the same impairment on a hypothetical claimant could be considered a hindrance. The purpose of the amendment is to eliminate those claimants who have had an earlier injury, but have not suffered any loss of potential earning capacity. Now, the nature of the inquiry shifts from a hypothetical claimant to the actual claimant involved.
The policy behind the creation of the Special Indemnity Fund must be considered when interpreting
Thus, we conclude that a proper analysis of
The only evidence offered on the second part of the test is the testimony of Polly Peterson, a vocational rehabilitation specialist.2 She testified that the condition of claimant‘s arm could reasonably cause a potential employer to be reluctant to hire the claimant because of concerns that the condition in her arm would make her a less capable worker, and more likely to be injured again. We conclude that there is sufficient evidence to support the finding by the Industrial Commission that the claimant‘s arm injury was a pre-existing permanent physical impairment within the meaning of
III
The ISIF argues that it was error for the commission to deny it the benefit of
72-208. Injuries not covered-Wilful intention-Intoxication.- (1) No compensation shall be allowed by the employee‘s wilful intention to injure himself or to injure another....
The ISIF argues that since the claimant, Helen Mapusaga, injured her arm while attempting suicide,
To properly determine if this defense is available to the ISIF requires a reconciliation of
The language of
IV
The ISIF also argues that the commission erred by classifying the claimant‘s mental disorder as a personal circumstance, and consequently erred by applying the Carey apportionment formula in awarding benefits. See Carey v. Clearwater County Road Department, 107 Idaho 109, 686 P.2d 54 (1984). The Carey formula is used in cases where the claimant is totally disabled within the odd-lot category and requires apportionment of nonmedical factors between the employer/surety and Special Indemnity Fund in proportion to their respective percentages of responsibility for the physical injuries. Id. at 118, 686 P.2d at 63. The ISIF contends thаt by classifying the mental disorder as a personal circumstance, the commission circumvented our holding in Hartley v. Miller-Stephan, 107 Idaho 688, 692 P.2d 332 (1984). In Hartley we held that a personality disorder lacking any physical symptoms whatsoever does not qualify as a pre-existing physical impairment within the meaning of
Initially, we must examine under what situations, if any, a mental disorder may be treated as a personal circumstance and prorated between the employer and the ISIF. In making a finding of permanent disability, the commission must consider both the medical factor of permanent impairment and other pertinent nonmedical factors.
In Paulson v. Idaho Forest Industries Inc., 99 Idaho 896, 591 P.2d 143 (1979) the claimant suffered lower back injuries while doing physical labor. Despite corrective surgery, the claimant continued to have difficulties with his back. Relying on a psychiatric evaluation, the Industrial Commission found that Paulson suffered from a hysterical neurosis of the conversion type caused by the injuries he sustained while working at Idaho Forest Industries. The commission ordered the employer to provide reasonable medical benefits for the mentаl disorder. The Supreme Court affirmed the finding of the Industrial Commission and ruled that the commission‘s
In Bartel v. J.R. Simplot Co., 106 Idaho 174, 677 P.2d 487 (1984), the claimant, Bartel, suffered an injury which resulted in pain to her shoulder and numbness in her arm. She was diagnosed as suffering carpal tunnel syndrome. However, surgery failed to alleviate Bartell‘s persistent pain. A panel of doctors all agreed that her persistent pain and numbness were due to “conversion reaction hysteria.” This type of hysteria occurs where a claimant suffers an actual physical disability which is treated and repaired, but the symptoms continue in the mind of the claimant because she is deriving some secondary gain from the disability. In Bartel a рsychiatrist testified that the secondary gain was probably that the claimant did not want to work, but preferred to stay at home with her family. The commission found that the claimant had a permanent physical impairment of 8% of the whole person with respect to the carpal tunnel syndrome. Also, the commission found that claimant suffered from a conversion reaction and concluded that she should receive an additional 7% of the whole person rating. However, the commission found that the conversion reaction was relatively mild, and that the claimant could perform duties consistent with her previous employment. On apрeal this Court upheld the findings of the Industrial Commission. We relied on the general rule that findings of the Industrial Commission will not be disturbed when they are supported by competent evidence.
In Hartley, supra, the claimant suffered a knee injury while at work. The commission determined that the claimant suffered from a long term avoidant personality disorder, which the commission found to constitute a pre-existing permanent physical impairment of 10% of the whole man. Thus, the Special Indemnity Fund was implicated for liability. On appeal, we reversed. We first recognized that psychological disorders should be compensated if they are proximately caused by the job environment and if they result in a loss of earning capacity. However, we examined the plain and obvious language of
In sum, Paulson, supra, and Bartel, supra, allow an employee recover for psychological injuries. In both cases employees had physical symptoms as well as mental symptoms. However, we did not limit our holding in either case to say that an employee must have physical symptoms before he or she can recover. In Hartley, supra, we held that the legislature specifically intended not to treat personality disorders lacking any physical manifestations as a pre-existing impairment for purposes of imposing liability on the Special Indemnity Fund. The question now before us is whether a personality disorder lacking physical manifestations can be treated as a nonmedical factor under
V
The ISIF argues that the commission erred when it reopened the record in order to allow an introduction of an impairment rating on the claimant‘s left arm without holding a new evidentiary hearing. After its first initial opinion the claimant moved for reconsideration. Neither in the motion nor in the supporting memorandum did the claimant request that the record be opened for the purpose of obtaining a rating on the claimant‘s left hand and arm. However, the commission, instead of issuing an order granting reconsideration, contacted all counsel asking each to submit the
First we note, that
The commission has the power to investigate and examine witnesses. Shell v. Standard Oil Company of California, 93 Idaho 370, 461 P.2d 265 (1969). Thus, the commission acted properly when, on its own accord, it re-opened the record for the purpose of taking evidence of the claimant‘s impairment on her arm. However, once the commission does place new evidence into the record, all parties should have a right to dispute that evidence by challenging its validity or by introducing additional or conflicting evidence. Patrick v. Smith Baking Company, 64 Idaho 190, 129 P.2d 651 (1942). Thus, we conclude it was error for the commission to not allow the ISIF to dispute Dr. Burton‘s rating of 12% impairment in respect to the claimant‘s arm. Therefore, we reverse and remand to the Industrial Commission for purposes of allowing all parties to submit evidence regarding the impairment rating on claimant‘s arm.
The Industrial Commission‘s decision is affirmed in part, reversed in part, and remanded for proceedings not inconsistent with this opinion.
Each party is to bear its own costs and attorney fees.
BAKES, BISTLINE and HUNTLEY, JJ., concur.
BISTLINE, Justice, specially concurring.
Justice Donaldson‘s opinion upholding the Commission should be well received. The Commission is also to be commended.
For myself, however, Part IV would have simply overruled Hartley v. Miller-Stephan, 107 Idaho 688, 692 P.2d 332 (1984), for reasons I heretofore stated in 107 Idaho at 691, 692 P.2d at 335. I remain amazed that three of my esteemed colleagues were persuaded to Justice Shepard‘s view that the brain was not part of the anatomy of a humаn being, and that its functional loss or abnormality was not within the purview of the plain language of
SHEPARD, Chief Justice, dissenting.
I must dissent from Part IV of the majority opinion. I believe the case of Hartley v. Miller-Stephan, 107 Idaho 688, 692 P.2d 332 (1984) is controlling.
In Hartley, we also were concerned with the construction of
[T]he definition of preexisting permanent physical impairment, as stated in
I.C. § 72-422 and incorporated by reference intoI.C. § 72-332 , does not expressly limit that term to physical, i.e., anatomical, impairments. Nonetheless, the fund argues that the word “physical” would not appear in the phrase “permanent physical impairment” withinI.C. § 72-332 , had not the legislature intended some significance thereby. We agree. This Court will assume that the legislature intended what it said in a statute, and we will construe statutory terms according to their plain, obvious, and rational meanings. (Citations omitted.) We will not construe a statute in a way which makes mere surplusage of the provisions included therein. (Citations omitted.) Therefore, we discern that the legislature intended the usual, common meaning of the word “physical” when it used that word inI.C. § 72-332 . This interpretation of the preexisting physical impairment language in that statute is consistent with our requirement in other cases that the preexisting physical impairment be manifest. (Citations omitted.) 107 Idaho at 690, 692 P.2d at 334.
The reasoning in Hartley is equally applicable here. Claimant Mapusaga reasons that her mental disorder is a preexisting condition contributing to her total and permanent disability, but because she exhibits no physical manifestations of her disorder, such disorder is not compensable under
The majority opinion asserts that Paulson v. Idaho Forest Industries Inc., 99 Idaho 896, 591 P.2d 143 (1979) and Bartel v. J.R. Simplot Co., 106 Idaho 174, 677 P.2d 487 (1984), support the majority‘s conclusion that claimant‘s psychological disorder should be included as a non-medical factor in determining disability. I disagree. The majority has failed to recognize that in both Paulson and Bartel, the mental disorders were the result of the industrial injury which the claimant in each case had suffered. The instant case is of course different in nature in that Mapusaga‘s mental condition predated the injury to her back while employed at Red Lion. Thus, the instant case is indistinguishable from Hartley, wherein the claimant‘s mental condition also predated the industrial injury to his knee.
I would revеrse the decision of the Industrial Commission as to that portion discussed and affirmed in Part IV of the majority decision.