*1 City isted between Burnside and Gate only suspended,
Steel—Burnside was enough lucky
terminated. If he were utilizing company
find some interested services, quickly interest would potential employer asked
wane when the
and found out the status of his had terminated and the reason there Department’s
fore. The attitude in this reality. totally
situation is out of touch with hand, Burnside, being in
On the other circumstances,
most did con disfavored
scientiously make an effort to find work.
His chances were slim to none. wonders,
One were a member of this suspended under like circum-
Court to be
stances, what would be the chances of work,
seeking finding and other where it is
readily seen that even if one found a com-
passionate potential employer, he new getting in-
would not be too interested charges until the outcome of the
volved which time then a
was determined —at
strong likelihood the withdrawal would be suspension. grievous, injustice done Burnside is perhaps par with that done Rita to Patricia
Carlson and Small.1
Michael
Claimant-Appellant, CONSTRUCTION, Employer,
CIRCLE Company Insurance of New
Northern York, Surety,
Defendants-Respondents.
No. 16367.
Supreme Court of Idaho.
May
(1985).
Jacklin
that in the
Independent
P.2d 114
case,
Observe
1. Carlson v. Center Resources
Commission,
given
opportunity to
(1985);
People,
Idaho
BISTLINE, Justice. driver, he was considered the best truck therefore he could—in for line the best claimant, O’Loughlin, Michael has well, spoke truck always very, he and— employed primarily been as a truck driver. very positively about it. 10, 1984, O’Loughlin On November was driving hauling sugar a truck within beets Q. significance Okay. you
the course What do of his for Circle A attribute Construction, to the fact that he continued he when blacked momen- out drive for a tarily. at least month or a month and Although he regained conscious- having a half he before started these accident, ness before there was an problems? truck did O’Lough- not leave the highway, frightened lin badly Well, was A. pretty I think that’s incident. charac- physical injuries He received no teristic of Michael as I from the have come to incident. informing supervisor job day; After know him. He loses a one he mean, I resting while, and after finds one the next. that’s what he decided to done____ always he has return home. He did not work the next day. day following, On the he saw a doc-
tor returned work two later. weeks Q. You mentioned that as result of driving He continued without incident until your of the MMPI test evaluation that he he laid off from this season’s appear didn’t to be someone who was ment. trying problem. to fake a your with him has discussions there
O’Loughlin began work next Bast- anything been you indication Trucking errechea in Gooding and worked your part have noticed that would Trucking without incident for Basterrechea you making up indicate to Michael is February until at about which time having right problems that he is having he became concerned about another now? driving; symp- blackout while he suffered breath, No, pains, really
toms
chest
A.
I
don’t
so
shortness
think
at all.
difficulty sleeping.
and had
Frequently,
way
He has been
in the
he
so consistent
up
night
presented
would wake
in the
has
reported
middle of
himself and
vari-
I
ous facts that have no reason to disbe- basis that
it had not arisen
out
lieve him based on what he
said.
claimant’s
think,
just,
And the MMPI was
I
following
The Commission
spe-
made the
*3
support
little extra
for that assurance.
finding
cific
of fact: “The record indicates
impression management
There was no
that Claimant is disabled from truck driv-
attempt to fake bad on there as
some-
we
ing
panic
because of the
disorder and that
Tr.,
54,
people.
pp.
64,
times
see
developed
the disorder
Claimant’s
from
65-66.
experiencing another blackout
fear of
R.,
(em-
while he
driving
p.
truck.”
previous experience
had a
added).
phasis
The commission’s conclu-
he
driving
which
blacked out while
in 1972.
sions of law were somewhat in the same
testing completed
Medical
after the 1972
vein:
incident and after the
incident
1984 here
necessary
many
It is not
to
address
at issue failed to disclose a known medical
by
parties,
the issues raised
the
such as
O’Loughlin’s
cause of
blackouts and no
panic
whether or not Claimant’s
disorder
relating
medical evidence
to cause was
occupational
is an
disease within the
presented to the Commission.
meaning
Compensa-
of the Workmen’s
Kaufman, Ph.D.,
Dr. Charles R.
a clinical
Although
question
tion Act.
there is no
by
licensed
the state of Idaho
disability
Claimant suffers from a
as
treating O’Loughlin,
who was
testified that
disorder,
panic
a result of his
Claimant
panic
developed
the
disorder
as a result of
proving
has
sustained his burden of
10,1984
the November
incident. Dr. Kauf-
that the disorder itself arises out of his
man
panic
further testified that
disorder is
triggered
usually
by
frighten-
some kind of
The evidence established that Claim-
event,
trauma,
ing
panic
and that the
anticipatory anxiety
ant’s
is directed to-
producing
disorder consists of
random oc-
apprehension
ward an
of a further black-
anxiety
casions of fear and
are
which
at-
driving
According
out while
truck.
patient’s past terrifying
tributable to a
inci-
the
testimony,
uncontroverted
and the
dent.
above,
findings
this
is the result
fear
panic
Dr. Kaufman did not establish that
10,
Claimant’s blackout
November
disorders,
diagnosed
such as the one
driving
while he was
truck within
O’Loughlin,
peculiar
driving.
are
to truck
scope
employ-
the course and
He indicated that between two and four
precipitating
The
cause of
ment.
the
percent
population
of the
from
suffers
driving,
panic disorder is not truck
how-
However,
panic
some sort of
disorder.
ever, but the blackout that Claimant ex-
testified that
it was the combination of
perienced and his fear of a recurrence.
together
blackout
the
relating
There is no evidence
to the cause
was,
time, driving
fact that he
at the
itself,
therefore,
blackout
becoming
truck which resulted in his
dis-
that the
Claimant cannot establish
black-
panic
abled
disorder.
out,
panic
and the
disorder which results
timely application
The
it,
claimant’s
from
out of Claimant’s
arises
hearing, stated that he
as
became disabled
prevail
ment. Claimant cannot
without
connection,
a result of a
disorder which was
establishing
causal
driving
caused
a blackout while
a truck
through
testimony.
Foods, Inc.,
on November
v. Columbia
Ida-
Green
(1983)]; Sykes
ho 204
P.2d 1072
[657
presented
When the matter was
to the
Co.,
prior case the case properly will Bakes, be authored Justice which re- remanded to the Commission for reconsdi viewed an Industrial Commission claim in light eration in principles of the of causa sought which claimant to establish a link tion as Kiger set out in and Comish. between physical injuries work-related above, page subsequent hysterical arising
As noted
112 Idaho at
neurosis
injuries.
out of those
page
at
the Commission
Paulson
739 P.2d
v. Idaho
law,
Industries,
Inc.,
ruled,
Forest
matter of
99 Idaho
as a
(1979).
P.2d
proving
Obviously, psychiatrist,
“his
did not sustain
burden
being
M.D.,
also a trained
employ
arises out of his
would fall
the disorder itself
within
R., p.
However,
ment.”
judge-made
ultimate
rule of
Sykes,
Green and
through
conclusion was
nonap
requiring
derived
expert
testimony.
plication
principles
of causation dis
search of our cases reveals that none of
cussed above. The
incorrectly
prohibited,
them
endorsed,
have
nor
isolated the blackout
itself as the sole
use of
testimony from a Ph.D. clini-
cause
disorder. This
psychologist,
cal
state,
licensed
paved
in turn
the way for the statement when the nature of the claimant’s disorder
that:
psychological,
physiological.
How-
*5
relating
There is no evidence
to the
ever,
cause
several of our neighboring states
itself,
therefore,
of the blackout
and
given
proposition
have
thorough consid-
claimant cannot establish that the black-
eration.
out,
disorder which results
In Madison Granite Co. v. Industrial
it,
arises out of Claimant’s
Arizona,
Commission
138 Ariz.
of
R., p.
ment.
11.
(App.1983),
P.2d 1
the court considered
Accordingly,
holding
the Commission’s
microbiologist
whether a Ph.D.
compe-
was
O’Loughlin did not sustain his burden of
testify
to
tent
to the causal link between a
proving causal connection
his dis-
between
work accident and the claimant’s subse-
order
employment
and his
cannot stand.
quent
tuberculosis. The court reviewed
and overruled an earlier
Bilbrey v.
II.
Commission,
Ariz.App.
remand,
Commission
On
should
this state to in activities which together, provide Taken the statutes practice medicine; involve the of a basis for the same conclusion that the
Hooper court in Arizona derived: one who
diagnose, treat,
is entitled to
and correct
“practice
The
by
medicine” is defined
competent
mental
is
as,
conditions
also
to testi
in part:
act
fy regarding the causes of such conditions.
(a)
investigate, diagnose, treat,
To
cor-
that,
important point
The
just
is
as there is
rect,
prescribe
disease,
or
for
human
prohibition against
no case
psycholo
law
ailment, injury, infirmity, deformity, or
gists testifying
O’Lough
in cases such as
condition, physical
mental,
other
by
or
lin’s,
statutory impediment
there is no
ei
any means or instrumentality, or
Arizona,
colleagues
ther. Like their
in
our
(b)
apply principles
To
techniques
psychologists enjoy
licensed
qual
same
prevention
medical science in the
medicine,
privilege
practice
ified
to
within
(a)
of the conditions
in
listed
subsection
section____
competence.
the area of their
54-1803(a)
of this
I.C.
§
(b) (1979).
region
in
Other states
our
have reached
Weyer-
similar conclusions.
v.
Sandow
The definitional section of
psycholo-
Co.,
252 Or.
449 P.2d
haeuser
gist licensing
“practice
statute defines the
(1969),the court reviewed a trial court re-
psychology”
as follows:
psychologist’s
fusal to admit a clinical
testi-
(f) “Practice
psychology”
means the
mony
ground
that he was not medi-
on
application
principles
of established
cally trained.
motivation,
learning,
perception, think-
ing,
relationships
prob-
and emotional
to
The action was under the Jones Act.2
evaluation,
personnel
lems
group
plaintiff’s
rela- The issue was whether the
emo-
Act,
Act,
personal representatives
right
The Jones
Merchant Marine
seamen or their
against
employer
negligence
gives
§
Stat. 1007
U.S.C. 688
to
to action
in
depression
injury
ly qualified
tional
was caused
an
to testify to the causal connec-
sustained in the course of his
O’Loughlin’s job-related
tion between
inci-
The
properly-qualified
court held that a
subsequent panic
dent and his
disorder.
competent
testify
clinical
to
Significantly,
objection
no
to Dr. Kauf-
on that
issue.
Id.
Similarly, psy- Montana has allowed a chologist testify to to the relation causal Because of in the manner which the job injury between a and the claimant’s disposed of this it did not Campbell later Young suicide. Motor question reach the of whether (Mont.1984). P.2d occupational disorder an disease Mexico, jurisdiction New takes the that meaning within the of the Workmen’s Com opposite position, on does so based a stat- pensation Act. Since has al ute specifically only mandates that leged physical injury, no it is clear that in testimony will do: medical bring order recover he must deny In all where the cases defendants within “occupa the definition of alleged disability that an is a natural and diseases” tional contained I.C. 72- accident, direct result of the the work- 102(17)(Cum.Supp.1986),and our case law man must connec- that causal establish interpreting provision. See also I.C. tion probability by expert as a medical (Cum.Supp.1986), 72-437 72-438 §§ testimony. No of com- award remand, (1973). ap and 72-439 On pensation speculation be shall based on pears be the issue primary to be re expert testimony or on a medical that as solved the Commission. possibility the causal exists. connection Therefore, we reverse and remand to the [Emphasis original.] 52-1- N.M.S. proceedings Commission for con- 28(B) Stanley’s in Fierro v. Hard- cited opinion. appel- with this Costs sistent ware, 104 N.M. 722 P.2d 660 lant. (1985). order, cases cited Commission’s HUNTLEY, JJ., DONALDSON examination, propo do not stand for the concur. *7 testify in psychologist may sition that a not BAKES, Justice, concurring in the rever- proceeding an Commission on sal: In the issue of causation. v. Co Green ,Inc., lumbia 104 Idaho Foods I with the statement concur Court’s that P.2d a medical did testi “employment only need contribute to the did fy, but the Commission found claimant disability, ‘precipitate’ it or be the burden; in v. Sykes not sustain his C.P. ultimately produces in first time that cause Co., 100 P.2d 939 Clare & 1051-1052, the P.2d result.” Ante at of called experts any no kind were I the erred at 350-351. believe commission
by claimant. held, law, of as a matter that when it relating case, is to the cause Dr. no evidence In this Kaufman received “[t]here therefore, itself, In claim- psychology in in 1979. Ph.D. clinical blackout blackout, practice in Ida- ant establish that the 1981 he licensed to cannot became it, results from panic be- the ho. He testified that had treated employment.” own who arises out the Claimant’s tween 18 to clients of his However, the In addi- both the Court and commis- panic suffered from a disorder. view, at in tion, are of the least practition- apparently with other sion he has consulted causation is own. that the issue of a ers disorder clients of their question result, question eminent- of law rather than appears As Dr. Kaufman purpose acts are in similar to state way under the of those to railroad workers similar ap- Liability Employers’ compensation Act Federal plies Act. The The rules and workman’s acts. personal who shall suffer may vary. seaman the relief employment. Both injury of his in the course (1) questions employment, fact.1 The of whether results but rather from the disorder”; “panic (2) claimant had a wheth- blackouts. Since there was no evidence causatively linking er it arose employ- out of the claimant’s ment; resulting pan- and whether not it claimant’s blackouts and constituted disorder, occupational perceive significance an ic I can no in disease as defined in I.C. 72-102(17), are, whether that lack is my opinion, in of evidence viewed as ques- all a matter of matter law, law or as a of fact. questions tions of fact rather than event, either I the Commission believe which the must decide commission from the correct. To assert that agree evidence before it. I with the Court erred because it that the claimant stated that evidence of a licensed “cannot” link establish a causative expert testimony admissible as to establish employment, stating instead of appears the claim. Since it that the com- claimant such “did not” establish a causa- mission, II, in its Conclusionof errone- Law link, my being hypertechni- tive is in view ously concluded as a matter of law that the cal. “claimant cannot establish that the black-
out, disorder which results it, arises out of Claimant’s
ment,” the commission’s decision must be
reversed and the matter remanded for fur- However, proceedings.
ther I cannot
agree
suggestions
with the
majority
opinion
of the three issues listed
SHEPARD, Justice, dissenting. Chief WALKER, County Glen Kootenai Prose- I agree cutor, with much that individually stated both and in his ca- Bakes, concurring J. pacity County reversal. Kootenai Prosecutor However, I believe McKinzie, essential one factor is and Maxine Kootenai Coun- ty Treasurer, Defendants-Respondents. allegedly overlooked. Claimant suffers from blackouts. The Commission held that No. 16596. no presented evidence was relating to the Supreme Court Idaho. cause of the blackouts. Whether denom- inated as a matter of law a matter of *8 3, 1987. June fact, the supports holding record Commission, i.e., no evidence was presented on that issue because the cause Also,
is unknown. allegedly claimant suf-
fers from a disorder which he claims causally related to blackout. There
is no assertion made claimant that the way relates to his 1051, opinion, ante at P.2d at of decisions of the Industrial Commission The Court’s law,” quoting "questions from the Standards of Review in that limitation cannot be so Courts, 3.2, Appellate easily by merely stating State and Federal § circumvented that fac- Foundation, (Idaho Inc., 1985), upon proper application Handbook Law tual "issues turn facts,” undisputed law to appellate expected states: “An court is to de- ante at ruling clare the law and substitute 739 P.2d at its view for and then issues such causation, agency upon legal that of a trial as occupational not a court whether or condition is an issue." While accurate arises this is an statement of disease which out of the 5, 9, authority employment, questions our constitutional under Art. are law rather than questions the Idaho Constitution which limits our review fact.