Vernon v. Omark Industries, 744 P.2d 86

Vernon v. Omark Industries

744 P.2d 86

Idaho

1987

Check Treatment

*1 VERNON, Patricia Louise

Claimant-Appellant, INDUSTRIES, Employer,

OMARK Fund, Surety,

State Insurance

Defendants-Respondents.

No. 16559.

Supreme Court of Idaho.

Sept.

Aherin, P.A., Brown, Lewiston, Rice & for appellant, Patricia Vernon. Charles A. Brown, argued.

Evans, Keane, Koontz, Boyd Ripley, & Boise, respondent, for Omark Industries and Idaho State Ins. Fund. M. Karl Shurt- liff, argued.

DONALDSON, Justice. appeal by This is an Patricia Vernon, from an Industrial Commission or- denying der her claim for benefits. The issue, today we address is whether the com- ruling mission’s that claimant had sus- showing tained burden of and in the course of We is correct. conclude the adequately how failed state conclusion, we, ultimately to its came therefore, remand. vacate decision and employed by Patricia Vernon had been Omark nine approximately Industries years working primarily han- as material shipping department. dler in Her work moving of repeatedly consisted trays primers, tray wooden filled with each weighing twenty-eight pounds to in fifty pounds. excess of Claimant testified June, 1983, that some time in the middle of work, experience while at she started *2 legs. Subsequently, pain pain lower did re- in her back or at her back. She that any particular direction, incident could member myelogram Dr. Adams’ a and CT pain, nor could have caused the onset of The performed scan were on claimant. pain began. pinpoint day She she Dr. revealed a herniated disk for which test thought experi- she first testified that she performed surgery. Adams Claimant’s June, it on the thirteenth of enced improved surgery condition after the and acknowledged that it could have occurred early by she was able to return to work 14, 15. In her either on June or June January 1984. of hearing the Indus- application for before employer Claimant first notified her of Commission, that date trial she stated 1983, 4, August accident on an industrial 23, 13, of was June June nearly two months after the initial onset of 1983, during work hours. pain. reported that she had a herniat- She immediately notify did not Claimant by disk in the back caused ed low was supervisor of the incident. She aware Although trays. of claim- wooden plant’s safety shipping of rules and begin- had treated Dr. ant Skinner regulations require that department which 24, 1983, ning she this report June did small, accident, no re- matter how employer. treatment to She testified ported employee’s supervisor imme- attempting take diately. to work her that she was care Claimant continued 24, 1983, herself, until normal work schedule June if problem was and concerned day which was her off. At that time she reported might she the accident was Skinner, chiropractor, Dr. for went see dismissed from her work or otherwise disci- pain in her back. claimant was plined she had because had several seen Dr. Skinner on twelve occasions previous leaves of absence. for treatment of her back Feel- condition. hearing After a before the Industrial with Dr. unsatisfied Skinner’s treat- Commission, the commission issued Find- ment, the claimant visited Dr. A.G. John- Fact, ings of Law Conclusions of and Order son, general practitioner. Dr. Johnson Aftey state- on June extensive prescribed Feldene to alleviate the back (which are ments of the facts restated pain. pain After one week and reduc- no above) following made the the commission tion, appointment claimant scheduled an scant Conclusion of Law. Colburn, orthopedic surgeon. with Dr. Claimant was examined Dr. Colburn’s “The sustained her bur- Claimant Imthurn, by Betty practition-

office a nurse personal den of that she suffered er. Claimant indicated to her that the on- arising injury to her back out of and pain approximately set of the occurred five Em- of her course (middle 1983) May, weeks before of proceeding.” ployer alleges she this any particular activity or unrelated appeal scope Our of review on reported incident. Claimant to have had findings well of the commission is settled. pain low back off and on at least five to are determine whether the commis We years. six Imthurn directed the claimant supported sion’s factual are to take several off from weeks work. and, if competent evidence substantial supervisor Claimant notified her that she Const., so, affirm we must them. off, needed the time but did not then assert 72-732, it was art. 5 needed as a result of work- § § Neufeld Industries, related 109 Idaho Browning Ferris However, (1985). 712 P.2d when next Dr. Warren J. Claimant visited questions law it is for this of are raised Spokane, Washington, Adams whose to decide them de novo. Court speciality orthopedic spine sur- ex instant commission did not Dr. gery. Adams testified that claim- they under were plain the rule law which stated pain approx- ant she first noted back (around They merely imately operating. stated that six weeks mid- earlier June) dle and before had no not meet her burden of claimant did We cannot ascertain whether 72-102(14)(b), the com- in I.C.

mission did not believe testimo- the course of employment. The ny of the claimant’s doctors controlling or her own law is contained in the worker’s testimony, placed greater weight 72-102(14) statutes. *3 I.C. § evidence, conflicting the the “injury” personal believed defines a testimony, applied claimant’s but a rule of arising caused an of and in law to its determination. is reach It not the course employment. of An “accident” guess reasoning our function to the is unexpected, undesigned, defined as “an commission. We cannot determine that the mishap, and unlooked for or untoward event, properly, improperly, commission acted industry connected with the in which reaching Thus, occurs, its conclusion. we must it and which can be lo- clarify vacate its decision and remand to as to cated time when and where it With rationale. our restrained of review causing injury.” 72- 102(14)(b). the commission’s findings, factual it be- Our law indicates that the comes essential that the commission’s con- probable, claimant’s must establish a clusions of law merely possible, not be shrouded in ambi- a connection to the guity. support cause and effect a contention compensable the accident occurred. The commission has wide discretion Callantine v. Supply, Blue Ribbon Linen making determinations, factual we 734, (1982). Idaho 103 clearly will a use erroneous standard mind, With this rule of law in the com- reviewing However, these determinations. mission must then examine the relevant appellate properly before an de court facts to determine whether the claimant findings termine whether the commission’s erroneous, proof. sustained her burden of As we clearly were it must determine stated the legal govern whether correct standard Neufeld: ing discretionary the available alternatives “The particu- determination of whether Here, applied. do not we know wheth lar out of and in the course er the question the disbelieved of fact of they or whether the believed the commission. [Citation omitted.] but claimant determined that a rule law necessarily of Such determination in- prevented sustaining her weighing the burden volves evidence and assess- of This decision cannot made at of credibility be the various witness- appellate es, Ap level. As our Court of is therefore committed to the peals expertise has stated a similar context: of the commission. com- weight

“However, mission’s conclusions to the thing it is one to hold that credibility evidence will be discretion has been exercised refer appeal they disturbed on are unless standard; legal ence ato misunderstood clearly erroneous. quite usurp [Citation omitted.]” another to such discre Neufeld, supra, 109 712 Idaho at by deciding tion issue anew at at P.2d 603. appellate level. We have held when judge erroneously applies a trial law review, appellate aid in the com To decision, making discretionary when must, contrasting faced mission when appropriate appellate response is to facts, allegations, find factual based un remand case for reconsideration upon the evidence it believes to more legal der the clarified standard.” Here, simply re credible. the commission Kunzler, 109 Matter the Estate presented conflicting cited the evidence 350, 355, (Ct. P.2d resolving factual without conflicts. App.1985). short, factual commission’s remand, incomplete and issue the of law are On commis and conclusions proper claim before expanded sion needs focus on is whether the need we can proving function. ly appellate ant sustained her exercise our review burden Accordingly, resulted from the commission’s as defined we vacate trauma, predis through repeated became back to the commis and remand decision ultimately posed which he that it make more sion with the instruction P.2d at sustained.” 105 Idaho at findings and conclusions of detailed factual holding. support its ultimate law to Wynn teaching case is The real appellant.

Costs working person’s back has that where attorney appeal. fees on No and dis exposed repetitive itself, it abling pain suddenly manifests HUNTLEY, BAKES, BISTLINE can, does, injury to result from an JJ., concurs. importance is the fact spine. Of more *4 BENGTSON, J., tern, pro concurs injury producing the sudden onset that the result. perhaps pain always, is not and not even Justice, BISTLINE, concurring often, injured person readily located specially. of the More pinpointed in a area back. over, surgery by a it not discovered at Co., 105 Idaho Simplot Wynn J.R. though he had laid specialist, back even (1983), P.2d 629 Chief Justice open exposed spine to view. 105 good decision. Shepard authored Idaho at 666 P.2d at 630. life in that case over most of his claimant types repeti span had suffered various Wynn case teaches as a matter What the pointed out in the as was well tive only justices we as of case law is what dissenting opinion Bakes. That of Justice by experi- ordinary individuals either know certainly pro repetitive trauma would have others, i.e., person can in- ence or from Wynn a back that was more vided Mr. back, pain varying to de- jure his feel disabling injury which he did un prone to comprehend severity grees, yet But, day. fortunately suffer one fortu time, per- injury until a much later of the him, jolt, nately severity of a increasing severity by the haps occasioned physical injury spine his to be caused the to injury. brought immediately at a to his attention regular heavy Repetitive trauma such as precise time. activity may in lifting type of is a pre The basis issue that case was his Wynn, time, predispose any person’s as in existing back condition which resulted ultimate (spine) to Until the back all of the trauma suffered earlier. The not be place, take it would injury does was, holding as stated basic aches, suffer back most uncommon to Shepard, Justice “... our ordinarily attributed to which would be who, law does not limit awards to workmen tear, and much of fatigue, wear and muscle prior injury, were in sound condition and indistinguishable from the which would Rather, perfect employer takes health. ruptured or nerve-im- injury of a ultimate Wynn, employee as he finds him.” protrusion. In those circum- pinging disc Idaho at 666 P.2d at 631. particular employee who while stances the lifting experiences heavy who Wynn specif- doing such this Court first going have the disabling pain, is not ically observed that the Commission Only because, identify source. surgery, knowledge to even at against held him But, layoff, can persists when it after ruptured not identified. disc was reflection, then, think back employee at a opinion goes point on to out that found, any time when it try identify exact rupture was surgery, second place. injury has taken found, that an repaired. This had is believed only but and not expected working people can Most to the attention of the Commis- been called job, not because This want to remain for reconsideration. sion on a motion concommi- heavy they enjoy the the Commis- opinion attributed Court’s pay check pain, because the back to “its view tant sion’s denial of that motion not kennel necessity. They are physically is a very Wynn’s life had been hounds, had, workers. active, and, hence, but motivated spine his ... Repetitive stage trauma sets the ample for an which, There is testimony if be- occur, and, per lieved, Wynn, in the satisfy does claimant’s burden of evidence, absence of activity course, Of the commission is enti- surety employer testimony to which the or the can tled to find that was not point, and being which is attributable as it, reject credible and therefore but it did culprit reasonable and fair to not so find. It is for these reasons that I —it job- conclude that the ultimate opinion concur in remanding this this case only required related. The specific commission for that it be located as to time and to what it proba- determines to be the more place. improper It would be for the Com- ble cause of the herniated disk. require mission or this Court to more of a However, I highlight would also like to heavy-lifting claimant than best recollec- what believe to major problem be the tion. source in cases of this kind. As stated time, kept At the same it must be mind majority opinion, 72-102(14)(b) I.C. any orthopedic surgeon, including requires that before a may claimant recov- specialist, say, truthfully, back injury occurring er for an accident or in the possible that a disc is attributable job, work or on the such accident or *5 aging process degenera- to the natural injury “reasonably must be located as to Anything possible, proba- tion. is and also place time when and where it occurred.” ble. Simply put, require the statute does not cases, analysis, plaintiff In the final in these pinpoint to an exact time when the found, answer is Huntley to be as Justice injury only a reasonable esti- suggests, by eliminating possible Indeed, unique in mate such. cases such supporting causes for which there is no this, has, where a claimant in all likeli- evidence. hood, injury suffered an as a result of repeated cumulative and stress

HUNTLEY, J., concurs. it would be unfair and unreasonable require impossible of a claimant who HUNTLEY, Justice, concurring pinpoint upon is not able to one exact date specially. injury which such an or accident occurred. agree that this case should be remand- comprehensive Prior to the amend 1971 ed to the Industrial Commission for more law, compensation ment of the workmen’s appropriate specific findings of fact (the predecessor I.C. 72-201 § and conclusions of law. The commission 72-102(14)(b)) present “Acci read: merely stated that the claimant did not law, dent” as used in this means an unex proof showing meet her burden of that pected, undesigned, and unlooked for mis injury job occurred on while event, hap, happening or untoward sud specific finding failed to make as to industry and connected denly probable whether it is more from all definitely which it occurs and which injury evidence that on occurred either place located as to time when and where it job job. or off the occurred, causing injury as defined presented appears ample with what to be (Emphasis supplied). By delet this law.” testimony only applied that the stress “happening suddenly,” and the words job claimant’s back occurred at the site. Further, supplanting “definitely located” testimony the words there was no that claim- located,” “reasonably it is solely by by ant’s the words herniation was caused aging process.1 state’s meant evident that this and, indeed, concurrence, continually persuasive- every person affected In his Justice Bistline ly kept by aging process. “it in mind that pro- notes that must be To hone including orthopedic surgeon, specialist, back .a substantial evidence cess without at least some say, possible truthfully, can injury’s that it is that disk by, showing injury was not caused that the aging process attributable to the natural just aging pro- by, exacerbated more than degeneration.” By stating, so Justice Bistline gross to all would be to do a disservice cess highlights a truism which often tends to confuse injury cases. claimants in back Every the issue in back cases. again This Court set forth require of the claimant such the concerns of Dole, Idaho any injury to time when and where in Aldrich McNeil (1926), reasonably possible. 249 P. 87 where the Court af occurred as judgment reversing firmed a the decision importance the fact that Also of some Accident Board Industrial recognized long justice this Court denied an award to claimant Aldrich. Aid- that, require in cumulative and fairness driving rich had worked a truck in which cases, required the claimant is not Al requiring gears had worn become pinpoint an exact date of an or acci- right his press a shift-lever with drich dent. repeated causing knee and blows to the In v. Hamacher Pole and Reinoehl knee the lever. Eventually, the knee Co., 51 Idaho Lumber was bruised to such extent that it became (1931),this Court ruled that a claimant who again injus disabled. This Court noted the Rocky Spotted Fever had died of Mountain compensation denying tice of in such a case: resulting tick over a bites received single pressing Now if the of the knee job period of two weeks while on the had a against striking single the lever and the “accident,” compensable though even of the knee the lever would result of the claimant’s death could not be cause- injury by say can we particular attributed to one tick bite. Rei injury actually was not received itself, was, merely one in a line of noehl merely caused there because holding. cases so was a continuation of the causes that Co., McNeil v. Panhandle Lumber brought injury? The statute does (1921), 203 P. this Court not restrict to an strikingly addressed similar to the event, *6 single that results from and there McNeil, repeated heavy one at hand. would seem to be no sound reason for job gradually caused the de holding that an occasioned retina, tachment of claimant’s loss of the number or series of events is not within and, right eye, particular in that total the act. at 92. 43 Idaho at P. deny blindness. This Court refused to anything, If there is even less reason right McNeil his to recover for failure to today to accord deference to the notion fix particularity with the time when his specify particu- that a claimant must stating: ultimate larity single happening event or “Undoubtedly in most cases of accidental constitutes the “accident” or results in the injury the claimant would be able to fix legislative This claimed state’s hour, day but the if neces- (resulting amendment to I.C. 72-201 sary, when the accident occurred. But present 102(14)(b))requires I.C. § 72— a case of this kind in which the more, certainly that this Court accord may appear for some time after it less, at- consideration to claimants’ actually has been inflicted the acci- tempts reasonably injuries locate their dent, manifestly it would be unfair and a ago. seventy years than this Court did justice denial of to refuse on the basis of this would rule that identify because the claimant could not amply record claimant has demonstrated very day though he heavy that her back arose from her could fix the time with reasonable cer- lifting at work and that the accident has tainty. so hold miscon- To would be to as to the time and located provisions strue the main of this [work- place of its occurrence. law, compensation] purpose men’s whose is declared to be to BENGTSON, BISTLINE, J., J., provide injured sure relief for workmen tern, pro concur. dependents. and their families and their The workmen’s com- [Citation omitted]. law, pensation like of this other laws state, liberally is to be construed with a object promote view to effect justice.” P. at 1081. 34 Idaho at