Matthew MAZZONE, Claimant-Appellant, v. TEXAS ROADHOUSE, INC., Employer, and Hartford Insurance Company of the Midwest, Surety, Defendants-Respondents.
No. 39337.
Supreme Court of Idaho
June 4, 2013.
302 P.3d 718
Alan R. Gardner, Boise, attorney for Respondent.
SUBSTITUTE OPINION, THE COURT‘S PRIOR OPINION DATED APRIL 26, 2013 IS HEREBY WITHDRAWN
W. JONES, Justice.
I. NATURE OF THE CASE
This is an appeal from an order of the Idaho Industrial Commission (“Commission“) denying Appellant, Matthew Mazzone (“Mazzone“), workers’ compensation pursuant to
II. FACTUAL AND PROCEDURAL BACKGROUND
On November 18, 2005, while working in the kitchen of Texas Roadhouse, Mazzone suffered a severe burn on his right arm when he tripped and plunged his right arm into a 360 degree deep fat fryer. By Mazzone‘s account, he was in so much pain after burning his arm that he simply crawled under the kitchen sink and cried. Mazzone was taken to the emergency room at Eastern Idaho Regional Medical Center. He was subsequently transferred to the University of Utah Burn Center (“Burn Center“). Mazzone claims that after the incident he began to suffer from nightmares, night tremors, and flashbacks.
Mazzone was at the Burn Center for four days where his burn was debrided and dressed daily. During his time at the Burn Center, Mazzone was twice noted in medical records to be exhibiting exaggerated pain behaviors. Between November 18 and at least November 28, 2005, Mazzone stayed at a hotel in Salt Lake City so as to receive follow-up care. Attending physicians reported on November 23, 2005, that Mazzone was healing well and that his pain was well controlled. He also demonstrated good range of motion and wound-healing. In a December 13, 2005, follow-up at the Burn Center, Mazzone had quit cold turkey his opioid medication, at which point he began to experience nightmares and flashbacks. Mazzone was referred to a psychiatrist in Idaho, Dr. Brock.
During Mazzone‘s sessions with Dr. Brock, chart notes indicate that Mazzone was healing well, but his pain was increasing. Additionally, Mazzone had thrown away all of his pre-injury medications and was beginning to have nightmares and was feeling more anxious. On June 9, 2008, Dr. Brock‘s office clarified that Mazzone‘s nightmares and anxiety were related to returning to work but noted that his arm injury was not the primary concern of their sessions. Mazzone
Three months after the industrial accident, Mazzone returned to work, but he was allegedly so overwhelmed that he asked to transfer to another Texas Roadhouse location in Massachusetts because he was nervous, sick, worried, and nauseous working at the site of the accident. Dr. Brock‘s chart notes from January 9, 2006, indicate that Mazzone had returned to work with anxiety, but the anxiety was worse on Wednesdays when he did inventory. Mazzone was also sleeping better and his nightmares were improving. Dr. Brock also modified Mazzone‘s GAF score to 65/85. A couple weeks later, Dr. Brock improved Mazzone‘s GAF rating to 75/852 after Mazzone reported that he was sleeping well without sleep medication. Even though Mazzone had the occasional nightmare, he was able to subsequently return to sleep.
On February 21, 2006, Dr. Thurman, a hand surgeon, released Mazzone to begin working 40 hours per week with two consecutive days off. The only restriction was for Mazzone to wear a protective glove as needed. Mazzone reported some swelling in his right hand but wanted Dr. Thurman to increase his work release for more hours. On March 1, 2006, Dr. Brock maintained Mazzone‘s GAF assessment of 75/85. He noted that Mazzone had not needed Xanax for a week, sometimes had sleep difficulties, and had occasional waves of anxiety while at work.
Following shifts lasting between ten and twelve hours, Mazzone experienced swelling and pain in his arm. On March 21, 2006, Dr. Thurman issued a new work release limiting Mazzone‘s daily work hours. The week of April 9, 2006, without a history of seizures, Mazzone experienced two seizures and was treated at Madison Memorial Hospital. It was believed that the seizures were related to medication that Mazzone was taking. Those medications were discontinued after the seizures. On April 12, 2006, Dr. Brock modified Mazzone‘s GAF assessment to 65/85, diagnosing Mazzone with major depressive disorder and generalized anxiety disorder. That same day, Dr. Thurman released Mazzone for a normal work schedule with one five-hour day. In Mazzone‘s final appointment with Dr. Thurman on May 17, 2006, Mazzone continued to experience burning of his right hand but otherwise had no significant limitations. Dr. Thurman assessed a three percent (3%) permanent partial impairment of the whole person based on abnormal sensitivity.
Between January 17, 2006, and March 10, 2006, Mazzone began sessions with Bret Wixom, a counselor. Wixom noted that Mazzone‘s anxiety increased with his return to work, but Wixom generally encouraged Mazzone to increase his time at work and provided coping skills. In Mazzone‘s last session with Wixom, Wixom noted that he had accomplished his treatment goals.
During this time Mazzone was also attending physical therapy with Deb West. In early February 2006, after having missed three appointments, West discharged Mazzone from her care; however, she noted that Mazzone‘s burn was well healed and Mazzone reported his condition was improving.
Mazzone first sought treatment for what he described as PTSD on October 3, 2007, when he contacted the Department of Health and Welfare Behavioral Health Services (“Behavioral Health“). During an intake evaluation, Mazzone reported ongoing symptoms, which started with his burn injury, including nightmares, crying spells, mood instability, anxiety, flashbacks, intrusive memories, sleep problems, and hypersensitivity. He attributed his sleep problems to the industrial accident. On October 11, 2007, following a week of panic attacks, Mazzone was diagnosed with general anxiety disorder, PTSD, and memory loss. Mazzone continued treatment with Behavioral Health through January 2009, where he received medications and therapy. Mazzone ex-
On February 21, 2008, Mazzone filed a Complaint against Texas Roadhouse and its Surety (“Respondents“). The matter was tried before a referee on December 9, 2010, the sole issue being whether Mazzone‘s industrial accident included a compensable psychological condition under
III. ISSUES ON APPEAL
- Whether the Commission‘s ruling that Mazzone did not suffer a compensable psychological injury pursuant to
I.C. § 72-451 is supported by substantial and competent evidence. - Whether the Commission improperly relied on evidence not properly before it.
- Whether either party is entitled to attorney fees on appeal.
IV. STANDARD OF REVIEW
When reviewing a decision of the Industrial Commission, this Court exercises free review over questions of law. Zapata v. J.R. Simplot Co., 132 Idaho 513, 515, 975 P.2d 1178, 1180 (1999). This Court‘s review with respect to questions of fact is limited to whether the Industrial Commission‘s findings are supported by substantial and competent evidence; if so, they will not be disturbed on appeal. Id. Substantial and competent evidence is relevant evidence that a reasonable mind might accept to support a conclusion. Eacret v. Clearwater Forest Indus., 136 Idaho 733, 735, 40 P.3d 91, 93 (2002). This Court will not disturb the Commission‘s determination as to the weight and credibility of evidence unless clearly erroneous. Zapata, 132 Idaho at 515, 975 P.2d at 1180. “Finally, in reviewing a decision of the Commission, this Court views all the facts and inferences in the light most favorable to the party who prevailed before the Commission.” Id. (internal quotations omitted).
The terms of Idaho‘s workers’ compensation statute are liberally construed in favor of the employee. Haldiman v. Am. Fine Foods, 117 Idaho 955, 956-57, 793 P.2d 187, 188-89 (1990). However, conflicting facts need not be construed liberally in favor of the worker. Bennett v. Bunker Hill Co., 88 Idaho 300, 305, 399 P.2d 270, 272 (1965).
V. ANALYSIS
A. The Commission‘s ruling that Mazzone did not suffer a compensable psychological injury pursuant to I.C. § 72-451 is supported by substantial and competent evidence.
1. The Commission‘s determination that Mazzone did not suffer from a DSM-IV-TR psychological condition resulting from an industrial accident is supported by substantial and competent evidence.
Mazzone argues the Commission‘s determination that he did not suffer a psychological injury is not supported by substantial and competent evidence because Mazzone presented evidence that he suffered an industrial accident, suffered vivid nightmares and anxiety after the accident, and offered a medical diagnosis of PTSD. Mazzone contends he provided sufficient evidence to demonstrate a diagnosis of PTSD under the DSM-IV-TR manual.
Respondents counter that the referee‘s finding was supported by substantial and competent evidence because Mazzone did not inform his medical providers who diagnosed him with PTSD of his past medical problems, Mazzone exaggerated his problems, and the opinions of Mazzone‘s experts lacked foundation.
The referee relied entirely on the opinion of Dr. Enright, a clinical psychologist who twice examined Mazzone. Dr. Enright concluded that Mazzone did not satisfy the criteria for a diagnosis of PTSD and may have been exhibiting exaggerated pain behaviors.
“A mental-mental claim is one in which a mental stimulus or impact results in a psychological condition.” Gibson v. Ada Cnty. Sheriff‘s Office, 147 Idaho 491, 493 n. 1, 211 P.3d 100, 102 n. 1 (2009).
- The injury was caused by an accident and physical injury or occupational disease or psychological mishap accompanied by resultant physical injury;
- The injury did not arise from conditions generally inherent in every working situation or from a personnel related action;
- Such accident and injury must be the predominant cause as compared to all other causes combined of any consequence;
- The causes or injuries must exist in a real and objective sense;
- The condition must be one which constitutes a diagnosis under the American Psychiatric Association‘s most recent diagnostic and statistics manual, and must be diagnosed by a psychologist or psychiatrist licensed in the jurisdiction in which treatment is rendered.
Whether Mazzone was properly diagnosed with PTSD is a contested issue: Dr. Murdock diagnosed Mazzone with PTSD, a diagnosis upon which Dr. Ostrom relied; however, Dr. Enright found that Mazzone did not satisfy the requirements of a PTSD diagnosis. As we will discuss further, even though we determine that the referee improperly gave her own medical opinion when concluding that Dr. Murdock and Dr. Ostrom improperly found that Mazzone had PTSD; the referee is entitled to consider whether Dr. Enright‘s or Dr. Murdock‘s diagnosis was more credible. The referee was entitled to consider the methodologies of all the experts, their examination of Mazzone, their concerns with Mazzone, and their consideration of his prior psychiatric history in de-
We therefore conclude that the Commission‘s decision was supported by substantial and competent evidence.
2. Mazzone failed to demonstrate that the industrial accident was the predominant cause of any PTSD from which he might suffer.
Although an employer takes an employee as he is, in determining the predominant cause of a psychological condition, the contribution of all of the employee‘s pre-accident factors must be weighed against the contribution of the industrial accident. To be the predominant cause, the work injury must be a greater cause of the psychological condition than all other causes combined.
Smith v. Garland Constr. Serv., 2009 IIC 0179, at 129 (2009).
The Commission‘s articulation of the predominant factor standard is consistent with
Mazzone has failed to demonstrate that the industrial accident was the predominant cause of his PTSD and symptoms; particularly in light of his prior medical history and his post-incident recovery. Mazzone had a history of psychiatric disorders potentially including an earlier PTSD diagnosis after the unfortunate still-born death of his first child. He had a variety of stressors in his life that caused him anxiety and sleeplessness. It is particularly noteworthy that for nearly two years after Mazzone‘s industrial accident his recovery was very positive. In the months after his accident his GAF score never fell below the 55/85 that he went into the accident having; indeed, in his first psychiatric evaluation after the incident Mazzone was evaluated with the same GAF score. His other post-incident evaluations demonstrate that contrary to his accounts, he was coping at work, he was requesting more time, he was anxious but learning coping skills, and he was sleeping better than he alleges. Given Mazzone‘s positive post-incident recovery and the many other stressors that he endured before and after the accident, substantial evidence supports the Commission‘s determination that the predominant cause of Mazzone‘s condition was not the accident.
Finally, Mazzone‘s expert, Dr. Ostrom, noted that even though she believed his PTSD was “related to his accident,” her testimony was not sufficient to establish that the accident was the predominant cause. Specifically, Dr. Ostrom testified that “[i]t‘s very hard in someone who has multiple psychiatric issues to determine how those are interacting with one another in terms of the severity of the illness.”
B. The Commission‘s referee exceeded her role as a finder of fact.
Mazzone argues that the Commission‘s referee exceeded her fact-finding role because the referee relied on evidence outside of the record and subsequently supplied her own medical opinion in disregard of the opinions of Mazzone‘s treating physicians. He further argues that the referee erred in considering Mazzone‘s prior medical history and the DSM-IV-TR manual when neither was actually admitted into evidence. Based on this information, Mazzone argues the referee gave her unqualified medical opinion.
Respondents argue that the referee did not improperly rely on the DSM-IV-TR manual because it is required by statute to investigate and rely on that manual. Respondents further argue that the referee did not err in examining Mazzone‘s prescription history because as finder of fact, the referee is entitled to examine and make statements of Mazzone‘s prescription history.
The Idaho Constitution grants the Industrial Commission authority to act as finder of fact.
1. The referee improperly interpreted the DSM-IV-TR manual.
We first consider whether the referee erred in considering the DSM-IV-TR manual. “Strict adherence to the rules of evidence is not required in Industrial Commission proceedings and admission of evidence in such proceedings is more relaxed.” Hagler v. Micron Tech., 118 Idaho 596, 598, 798 P.2d 55, 57 (1990) (emphasis in original). The policies of Industrial Commission proceedings are simplicity, accommodation of claimants, and justice. Id. at 599, 798 P.2d at 58. The legislature intended the industrial commission to have the “discretionary power to consider any type of reliable, trustworthy evidence having probative value ... even though that evidence may not be admissible in a court of law.” Hite v. Kulhenak Bldg. Contractor, 96 Idaho 70, 72, 524 P.2d 531, 533 (1974). “[I]n those areas in which the Industrial Commission possesses recognized expertise, it may in its discretion consider evidence not ordinarily admissible in a court of law.” Id. (permitting the admission of guides prepared by experts in the field of disability compensation because the guides were trustworthy and reliable. Nonetheless, such guides must still be introduced through a witness able to testify as to its authority). This Court clarified that it was not holding “that the Industrial Commission can take notice of anything it desires. Only, that recognized treatises or works dealing with topics in which the commission possesses expertise may be admitted into evidence through witnesses to be used as substantive evidence.” Id.
We conclude that the referee improperly interpreted the DSM-IV-TR manual to arrive at unqualified medical opinions. Certainly, the statute permits the referee to look at the manual and use the manual to weigh the methodology of conflicting medical experts. However, a referee is not at liberty to interpret the manual to form his or her own unqualified medical opinions. For that, a qualified witness is necessary. Here, the referee exceeded her authority and interpreted the manual to form her own medical opinion.
The referee used the DSM-IV-TR manual to raise issues relating to whether Mazzone experienced any “dread” on the first anniversary of the accident. The Commission‘s referee also improperly “excluded from evidence” medical opinions with which she seemingly disagreed. In so excluding the medical opinions that Mazzone had PTSD, the referee exceeded her role as a finder of fact and engaged in medical diagnosis. The referee effectively examined the criteria for PTSD in the DSM-IV-TR manual, added emphasis to characteristics she thought were most important, and applied her own understanding of this document to the facts before her. She expressed in her findings of fact that Dr. Murdock “diagnosed PTSD without confirming symptoms sufficient to establish that diagnosis under the DSM-IV-TR.” Indeed, the referee used her own understanding of the DSM-IV-TR manual to determine that Dr. Murdock failed “to establish a DSM-IV-TR diagnosis of PTSD.”
The referee excluded Dr. Ostrom‘s opinions because she believed that Dr. Ostrom‘s opinions would change if she had considered additional evidence. A referee may not undiagnose a claimant before the Commission based on the referee‘s own lay understanding of what the referee believes would change a qualified medical professional‘s diagnosis and professional opinion. Like Dr. Murdock, the referee found that Dr. Ostrom‘s professional opinion that Mazzone suffered from PTSD was “insufficient to establish a DSM-IV-TR diagnosis of PTSD.”
The referee did not merely use the manual to weigh the methodologies of two qualified doctors. Rather, she used her own understanding of the manual and its requirements to determine that Dr. Murdock and Dr. Ostrom had improperly diagnosed Mazzone. Where there is both a positive and negative diagnosis between two qualified doctors, the fact finder may examine the methodologies of both physicians to determine which physician is more credible. However, to use one‘s own lay understanding of a medical document, which requires specialized
Thus, we conclude that the referee improperly interpreted the DSM-IV-TR manual.
2. The referee improperly interpreted Mazzone‘s prescription history.
We next examine whether the referee improperly relied on Mazzone‘s prescription history from before the industrial accident. We conclude that the referee erred in considering and drawing opinions from Mazzone‘s Walgreen‘s Pharmacy prescription history. The referee considered Mazzone‘s prescriptions from Walgreen‘s and drew opinions from those prescriptions based on what they were “commonly prescribed for.” None of the medical experts testified to, or otherwise expressed an opinion regarding, Mazzone‘s prescription history. There was no expert who testified to the accuracy of the prescription history or why the medicine was prescribed. There is no evidence in the record indicating whether these prescriptions were prescribed for off-label uses. Indeed, the Walgreen‘s prescription history was not referenced at all during the hearing, or by any of the experts in this matter. Unlike chart notes, the prescription history does not itself explain the medical reason for its use. The referee exceeded her authority as a finder of fact when the referee made findings regarding Mazzone‘s prior medical condition based on her own assessment of his prescription history. This Court has held that the Commission cannot take notice of whatever it likes and witnesses are still necessary. See Pomerinke, 124 Idaho at 306, 859 P.2d at 342; Hite, 96 Idaho at 72, 524 P.2d at 533.
Therefore, we conclude that the Commission‘s referee improperly relied on Mazzone‘s pharmacy prescription history.
3. The referee‘s error is harmless.
Even though the referee improperly interpreted the DSM-IV-TR manual and Mazzone‘s prescription history, the referee‘s error was nonetheless harmless. This Court will not reverse the decision of the Industrial Commission when evidentiary errors are harmless. See Hagler, 118 Idaho at 599, 798 P.2d at 55. Ultimately, there were medical experts who positively and negatively diagnosed Mazzone with PTSD. The referee was entitled to look at the methodologies and opinions of the various experts to determine which expert was most credible and/or persuasive. The referee, therefore, did not err when she found Dr. Enright‘s conclusion that Mazzone did not suffer from PTSD more credible than the opinions of Dr. Murdock and Dr. Ostrom who concluded Mazzone did suffer from PTSD. Nor did the referee err in concluding that the industrial accident was not the predominant cause of Mazzone‘s condition because there was significant evidence of Mazzone‘s pre-incident condition.
4. The Commission‘s referee is a finder of fact.
We hold that the Commission‘s referee exceeded her role as a finder of fact and engaged in medical diagnosis. Even though we determine that the error was ultimately harmless, we take this moment to reaffirm that the role of the Commission‘s referee is that of a finder of fact and not a medical expert. When a referee exceeds his or her role as a finder of fact and injects his or her own medical opinions into the proceeding, we are concerned that claimants who come to the Commission with a history of medical issues might not receive the most competent adjudication to which they are entitled.
Often in the area of administrative law, an administrative agency or board may have members who by education, training, or experience have acquired expertise in their particular area of administrative law. There is, however, a line between use of that expertise and the adjudicative function of resolving factual disputes in administrative proceedings. For example, the United State Supreme Court has established that administrative officers acting in a quasi-judicial capacity may not “act on their own information, as could jurors in primitive days.” Interstate Commerce Comm‘n v. Louisville & Nashville R.R. Co., 227 U.S. 88, 93, 33 S.Ct. 185, 187, 57 L.Ed. 431, 434 (1913). The United States Supreme Court further held that an agency
It is one thing ... to say that an agency may employ its experience and expertise to evaluate and understand evidence and quite another to allow it to use its special knowledge as a substitute for evidence presented at a hearing. A fundamental premise of administrative law is that the quality and efficiency of the regulatory process will be enhanced by delegating authority to experienced, expert administrators. Just as fundamental, however, is the principle that factfinding in contested cases is governed exclusively by the record of the hearing.
Drew v. Psychiatric Sec. Review Bd., 322 Or. 491, 909 P.2d 1211, 1214 (1996). The Oregon Supreme Court went on to explain that the substantial evidence rule “loses its meaning if it is interpreted as leaving to the ‘expertise’ of an agency personnel, rather than to the external scrutiny of appellate courts, the critical question [of] whether the facts of the case permit the administrative choice involved.” Id. at 1215.
It is the law in Idaho that “our [workers‘] compensation law does not limit awards to workmen who, prior to the injury were in sound emotion and perfect health. Rather, an employer takes an employee as he finds him.” Wynn v. J.R. Simplot Co., 105 Idaho 102, 104, 666 P.2d 629, 631 (1983). When the Commission‘s referee is charged with making findings of fact, the referee is charged with taking an independent role as an adjudicator, must listen to the testimony of experts, and must render an impartial decision based upon the evidence in the record and the law that an employer takes an employee as he or she is found. When a finder of fact exceeds this role and engages in medical diagnosis, this Court loses confidence that the Commission‘s referee is not rejecting or discounting admissible and competent evidence offered by the claimant based merely on the referee‘s own unqualified medical opinions. Haldiman, 117 Idaho at 956-57, 793 P.2d at 188-189. Permitting a referee to exceed his or her role as a finder of fact undermines the legal purpose of Industrial Commission proceedings to accommodate claimants and promote justice in simple proceedings. See Hagler, 118 Idaho at 599, 798 P.2d at 58 (1990).
C. Neither party is entitled to attorney fees.
Mazzone requests attorney fees on appeal pursuant to
Every notice of appeal, petition, motion, brief and other document of a party represented by an attorney shall be signed by at least one (1) licensed attorney of record of the state of Idaho, in the attorney‘s individual name, whose address shall be stated before the same may be filed. A party who is not represented by an attorney shall sign the notice of appeal, petition, motion, brief or other document and state
the party‘s address. The signature of an attorney or party constitutes a certificate that the attorney or party has read the notice of appeal, petition, motion, brief or other document; that to the best of the signer‘s knowledge, information, and belief after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If the notice of appeal, petition, motion, brief, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reason-able expenses incurred because of the filing of the notice of appeal, petition, motion, brief or other document including a reasonable attorney‘s fee.
I.A.R. 11.2. An appeal is brought without reasonable basis where the appellant simply asks this Court to “reweigh the evidence presented to the Commission, and implicitly, to substitute our view of the evidence for that of the commission.” Gibson v. Ada Cnty. Sheriff‘s Office, 147 Idaho 491, 497, 211 P.3d 100, 106 (2009).
We hold that Respondents are not entitled to attorney fees on appeal because this case was brought for reasons beyond merely asking this Court to reweigh the evidence. Indeed the referee improperly drew her own medical conclusions from that record. However, that error was harmless. Thus, neither party is entitled to attorney fees on appeal.
VI. CONCLUSION
We affirm the Commission‘s determination that Mazzone did not suffer a compensable psychological injury pursuant to
Chief Justice BURDICK, Justices EISMANN, J. JONES and HORTON concur.