*1 Thus, is awarded party. neither attor-
ney appeal. fees on
IV. CONCLUSION court to
We remand for the district enter a precise
judgment that describes the location sixteen-foot
where easement’s width begins.
measurement We otherwise affirm judgment. attorney district No court’s appeal.
fees are awarded on Costs to New
Sweden. JONES, EISMANN,
Justice J. HORTON SCHROEDER, tern, J, Pro concur. WATERS,
William J. Claimant-
Appellant, CONSTRUCTION, Employ-
ALL PHASE
er, Fund, and State Insurance Sure- ty, Defendants-Respondents.
No. 39556-2012.
Supreme Court Idaho.
Pocatello, May 2013 Term.
March
EISMANN, Justice. Com- appeal from the Industrial This is proceed- in a mission worker’s that the held ing in which symptoms had failed to claimant occurring after his industrial accident following his by the where caused injured twice industrial accident he had been accidents and refused in non-industrial regarding those provide the injuries. affirm the order of the Com- We mission.
I.
Background.
Factual
(Claim-
15, 2006, William Waters
On June
ant)
drywall hanger and
working as a
assisting
supervisor
taper. While
overhead,
supervisor in-
hang drywall
drywall up
push the
structed Claimant to
so,
did
he felt
his head. When Claimant
July
neck and
shoulder. On
sought medical care from a
claimant
pain and
his shoulder
chiropractor. When
resolve,
Claimant went
weakness did
West, M.D.,
orthopedic trauma-
Gregory
After fur-
tologist,
September
testing and the failure of conservative
ther
symptoms,
Claimant
therapies to relieve
discectomy
an anterior cervical
underwent
January
surgery
and fusion
at C5-6
surgery was
undisputed
It
necessitated because of the
Claimant
accident.
received in the industrial
orthopedic surgeon
April
On
surgery
examined Claim-
had minimal
ant. He noted
Claimant
prob-
tingling,
and no
pain, no numbness
swallowing
except
difficulty
when
lems
some
his neck
the shower
hyper-extended
swallowing. The
discomfort when
and some
surgeon’s notes recorded:
really
minimal
Nor-
patient
has
neurologic
upper
function in the
ex-
mal
Arnold,
Parkinson &
James C.
Petersen
or tin-
He has no numbness
tremities.
PLLC,
Falls, argued
appel-
Arnold
is in
only dysphagia is when he
gling. The
lant.
shower,
his neck
when he stretches
PLLC,
when he
Fuller,
hyper-extends and notes
Fuller
R.
Fuller &
Steven
Apart
a little discomfort.
Preston,
he has
argued
respondents.
swallows
that,
problems.
patient
The Commission reviewed the record and
the referee’s
patient
dysphonia.
adopted
has no
recommendation and
proposed findings
the referee’s
of fact and
surgeon
to return
released Claimant
conclusions of
law as its own. The
light
lifting
45-pound
work with a
restriction.
causation
from a medical
surgeon again
saw
came from Dr. West. The Commission found
*3
surgeon
concluded
Claimant.
testimony
that Dr.
opinion
was not
stability,
had
Claimant
reached
and
entitled
weight
to
because it was based
activities,
full
he released Claimant to
re-
upon
symptoms
Claimant’s
of his
version
and
stricting
only
impact
him
loading
from
with
their onset and Claimant’s account was not
activities,
diving
gymnas-
axial
such
and
credible. The Commission reasoned as fol-
tics.
lows:
only
42. The
of
evidence
deterioration
work,
drywall
Claimant returned to
but
condition,
in Claimant’s
different from that
difficulty keeping up.
laid off due to
by
orthopedic
observed
surgeon],
[the
for
applied
jobs
for
convenience store
following May
fifteen months
con-
agencies,
rental car
but was not hired.
sists of Claimant’s
As deter-
July
whip-
Claimant sustained a
mined, above,
Claimant’s
injury
in a
lash
to his neck
rear-end motor
respect
credible with
to the time of onset
accident,
sought
vehicle
for which he
Furthermore,
symptoms.
there is
emergency
During
received
medical care.
inadequate
to
corroborate Claim-
part
he tripped
the first
and fell
experienced
ant’s
he
signifi-
running, sustaining
while
an
to his
cant
drywall
with
work
July
before
right
shoulder for which
also
which,
proven, may
if
have constitut-
emergency
received
medical care.
grounds
ed
orthopedic
[the
sur-
geon’s] MMI
medical improve-
[maximum
August
On
Claimant returned to
finding premature.
ment]
right
Dr.
treatment
Similarly,
after
2007 but be-
examining
After
Claimant and con-
August 2008,
fore he
consulted West
ducting
testing,
further
Dr. West determined
Claimant
a whiplash-type injury
sustained
that he had
from
shoulder weakness
a nerve
neck, and, possibly,
to his
and fall
injury likely due to
industrial acci-
Claimant’s
to his
shoulder.
It is undis-
dent.
puted
inju-
that Claimant sustained these
Whether and
extent
very
to what
Claimant
ries to the
locations he claims were
permanent
partial disability
permanently injured
entitled to
bene-
as a result of fits was tried
to a referee. Claimant
accident. Claimant has
relied
failed to
prove
complaints
upon
experts:
of two
which he
presented
28,2008
August
after
vocational rehabilitation
are refera-
consultant.
subject
ble to the
opposed
Neither of them
accident as
provided
with the medi-
to
one or
injuries
intervening
more of the
cal records
events.
Claimant
Therefore,
symptoms reported
after
sustained
his industrial
al-
existed,
West cannot be assumed to have
though Dr.
opined
whiplash inju-
that a
orthopedic
either as of
[the
the date
sur-
musculature,
ry would affect Claimant’s
geon]
MMI,
found Claimant reached
his nerves. The central issue was whether
because of the industrial
As a
conditions identified Dr. West
result,
opinions
August
after
were caused
industrially-related
Claimant’s
limitations
industrial accident. The referee concluded
foundation,
given
and restrictions lack
prove
Claimant
they
had failed
weight,
unpersuasive
and are
for the
were.
referee recommended that Claim-
purpose
challenging
orthopedic
[the
sur-
prove any permanent
had failed
partial
ant
geon’s] MMI assessment.
permanent
par-
excess of a 12%
impairment,
tial
State Insurance The Commission issued its order
already
(Surety)
paid.
Fund
“Claimant has failed to
that he has
binding
are not
disability in
“The
partial
any permanent
sustained
fact,
only.”
advisory
trier of
but are
person
whole
12%
excess
Truss,
142 Idaho
Clark
Surety
paid.”
impairment, which
partial
“It
of the Indus-
role
timely appealed.
then
Claimant
Commission,
Court,
not this
to deter-
trial
II.
credibility
mine
conflicting interpretations of
and to resolve
Failing
Err in
Did the Commission
Henderson,
testimony.”
142 Idaho at
Testimony of
Find Credible the
appeal,
“On
this Court will
had failed to
of the
I
argues
Surety
opinion
cal
dissent from the Court’s
because
records. Claimant
supported by
order is not
providing
had the
that there was a
Commission’s
burden
findings
relationship
of the
substantial evidence.
“[I]f
causal
between either
supported by
subsequent
impair-
current
the Commission
sub-
accidents and his
stantial,
evidence, they
argu-
competent
are not
resulting
ment
restrictions. That
instances,
significant
extremity that
“a
radicu-
revealed
binding
such
or conclusive.... In
subsequent
A
MRI
appeal.”
lopathy pattern at C6.”
set aside on
findings
fact will
Inc.,
Roadhouse,
degen-
from
154 Ida
Waters suffered
established
v. Texas
Mazzone
C5-6,
well as an
erative disc disease
P.3d
ho
tear,
Dr. West believed was
annular
present
situa-
the same
This case does
industrial
related Waters’
the Court in Mazzone.
tion that
before
to Dr.
referred Waters
McCowin
conflicting expert
case,
In that
there
February
surgery.
com-
workers’
as to whether
in-
in
surgery,
accident
After his
Waters was involved
pensation claimant’s
psychological condi-
a rear-end motor vehicle accident and sus-
compensable
cluded
“whiplash”
what
as a
When Waters On (PPI) West, permanent impairment partial for his from Dr. the doctor Waters’ upper rating, and instead the 9% an EMG test of found that Waters’ injury. only professional whiplash type evi- No tent with a from medical injuiy about comes Waters’ confirms that Waters’ from dence the accident from record July vehicle accident was consis- own motor McCowin, supposed on rating assigned by Dr. Waters had infirmities Dr. West’s uncon- tradicted percentage point opinions. PPI. dif- 12% The three fact that ference was due to the Waters was Based post-operative on Dr. McCowin’s reevaluated with a edition of the AMA new notes, found Commission that Waters Impairment, employed Guide to differ- reached improvement maximum medical injuries. rating ent markers for nerve (MMI) on 2007.2 next medical August 28, 2008, record in evidence is dated April filed his work- complain- when Waters to Dr. returned hearing A complaint. ers’ ing of Between the time Dr. held before Referee LaDawn opined McCowin had reached Marsters, 4,May to address on wheth- again West, MMI when Waters saw Dr. extent, er, and to what Waters was entitled Commission found Waters “sus- (PPD) partial bene- whiplash-type injury neck, tained a to his fits. Waters was the witness who testi- and, possibly, and fall to his hearing. fied at the Included the record right shoulder.” Due to these intervening deposition Dr. were the West and the incidents the Commission stated: depositions of two reports vocational re- [Waters] has failed to that the com- specialists, Kent Granat habilitation and Wil- plaints presented with which he after Au- Granat, liam Jordan. who was retained gust subject are referable to the Waters, concluded that as December opposed accident as to one or more of the 58.4%, PPD Waters’ inclusive of Therefore, intervening events. symp- impairment. forming opinion, In Granat reported toms to West cannot be as- reports chiropractor relied on medical existed, sumed to have either as of the Terry Burke, West, and Dr. McCowin. date Dr. found that McCowin [Waters] Jordan, Respondents, hired concluded MMI, reached or because the industrial April as of of Waters’ PPD was 25- 27%, impairment. forming inclusive of On November opined opinion, Jordan relied subject to the due accident. from Dr. West and Dr. McCowin. In addi- According to the Dr. West was tion experts, to the vocational rehabilitation then may unaware that Waters have sus- Wolford, Dan Industrial Commission Reha- injuries tained intervening from one more Consultant, bilitation Division found that as result, accidents. As a the Commission July “based the restric- found that “Dr. injury, from this industrial tions/limitations industrially-related to [Waters’] limitations customary is able to to his [Waters] return foundation, given restrictions lack *7 occupation.” weight, and unpersuasive purpose are for the challenging Dr. MeCowin’s MMI assess- opined The referee and Commission that ment.” Dr. testimony West’s as to in excess of PPI entitled 12% was to no disregard Commission’s decision because he was unaware the rear-end Dr. testimony West’s was based on the find- trip-and-fall motor and ing vehicle accident inci- that a whiplash-type Waters “sustained and, dent. experts injury neck, Since the possibly, trip vocational based to his and opinions partly injury their Dr. West’s testi- fall to his shoulder” before Dr. mony, opinions disregarded. 28, their also August were West examined him on 2008. The my opinion, disregarded the erred in Commission dis- the expert testimony all of experts the based vocational claimant retained and 2. This on was based an office visit without at this time. that restrictions however, restriction, occurred on 2007. The note place Dr. I would is to regard McCowin made to that visit reads: activities, loading impact avoid with axial gymnastics, MEDICAL REPORTS REVIEWED diving 07/12/07 such as etc. His Visit, 5/23/07): (Office Dr. I impairment rating will be a 9% McCowin — patient stability. think reached the I am person impairment. whole going patient to release the to full activities Lounge. was no to disre- testimony was There basis their Crown Respondents because and fa11 trip that the gard Dr. his part upon in West’s based Dr. disregarding in was no basis October or November There occurred therefore, and, grounds August West’s Dr. 28 examination after West’s ex- those of the vocational disregarding Indeed, September Cybex test. Wa- the perts. repeatedly incident ters testified that the chilly little occurred when the weather was a only person offered who Waters was the pain he type or cold. When asked what He accidents. testimony regarding his two replied, had as a result of the fall he “None in answers accidents disclosed the suffering than that I in other the ones them interrogatories and testified about Furthermore, It Dr. asked referee. West was deposition and before the before.” trying if, certainly appear deposition that he was he on does not at his when saw Waters whip- regard the anything. With to hide had that March Waters mentioned incident, Dr. lash-type which occurred before had an “in October or November he accident examination, he testified that leaving fell of 2008 which he while ear, had another had been rear-ended Dr. testified work at Crown?” West place care of concern gone urgent to an out having did not recall that been mentioned. he neck,” had his plate “the had [his] about counsel, posited ques- Respondents’ “every- checked, had been told motion tion, trip and apparently assumed that x-ray everything thing looked fine in fall had occurred in October or November okay.” if working asked seemed to be When ex- after Dr. had West following that pain in his neck he had some fact question also assumed a amination. The “No, really.” not Dr. injury, replied, he West supported by the record —that he was not have “useful” testified that it would been leaving work at the Crown. at the have information about incident but, opinions regarding Dr. Waters’ dis- he as the Com- time examined Waters specifically opined ability found: August mission “Dr. West on the 28 exami- based deposition whiplash injury nation, would supplemented Cybex at his test muscular, nerves, type affect Claimant’s not his whiplash results. stated responsible for Claim- opined which he injury produce type would of nerve In other symptomology.” ant’s residual injury diagnosed he and the evidence does words, whiplash produce would not trip and support a contention that type found in his September fall occurred before expert opinion August 28 examination. This Throughout of Wa- his course treatment uncontradicted. ters, consistently opined that Wa- In his ini- ters had sustained nerve incident, regard fall With September tial examination of Waters disregarded the referee sig- had [Waters] West “felt it of 2008” or occurred “Octoberish findings injury” nificant of nerve and that “October, 2008,” based maybe November of Similarly, problems.” “had some C6 nerve solely speculation that it occurred while August examination disclosed working full the Crown time at ongoing weak- problem “still related to his However, testify Lounge. Waters did not that he to—C6 nerves ness enervated during the after work or occurred *8 weak,” still and that Waters “had some working full at the Crown time he was time pain in the persisting nerve C6 distribution.” Lounge. Crown testified that 11, on based Dr. West concluded November “hang one of outs” and that he his Cybex test, that Waters results of not fre- frequently.” “drank there He did injury to the “had suffered a just after he quent the bar for work. Even no indication in the record full nerve.” There is quit working at the bar time and started May working that Dr. MeCowin examined or for & R Construction in J 23, testing 2007.3 2008, any at the on after part-time work continued basis," likely not vouched his “on a more than 3. Of interest is the fact
267
testimony in
No
the record contests Dr.
ties intended to mislead this tribunal.” On
findings regarding Waters’
in-
nerve
credibility,
issue of
only
the referee found
Thus,
jury.
ground
there was no
to disre-
“with
to time of onset of his
gard
opinions.
relevant symptomology,
testimony
[Waters’]
then,
credible.” The
problem,
case,
In a 1937 worker’s
this
chronology,
veracity. Therefore,
stated:
Court
testimony regarding the
inju-
lack of
or
witnesses,
applicable
The rule
to all
wheth
ry from the two incidents could not be disre-
parties
er
or interested
the event of an
Indeed,
garded.
nobody would even have
action, is,
board, court,
that either a
incidents,
known of the two
had he not volun-
jury
accept
must
positive,
as true the
un
teered information about them.
contradicted
of a credible wit
ness,
inherently
unless his
is
finding
The referee’s
regarding Waters’
improbable,
or rendered so
facts and
credibility deserves some examination. The
trial.
538,
[
circumstances
[175]
(1928)
50 P.2d
Manley Harvey
Minn.
].
872,
Jeffrey
489,
disclosed at the
v.
874
221
[
Trouse,
(1935)
Lumber
N.W.
],
hearing
100 Mont.
it is
913,
Co.,
held
914
174 ity, which
Moore v.
merous inaccuracies or conflicting facts.”
issue
802,
811
here
Moore,
(2011).
appears
“judged
152 Idaho
In reviewing the Commis
to be substantive credibil
on the
245,
grounds
254, 269
of nu
P.3d
that neither the trial
jury may
court nor a
decision,
sion’s
appears
the rather
arbitrarily
capriciously
disregard the
finding
narrow
of lack of credibility is based
testimony of a
unimpeached by
witness
essentially
circumstances,
the first of
any
law,
of the modes known to the
if such which was
uncertainty
Waters’
as to the ex
probability.
does not exceed
act time of
trip
and fall incident. Howev
And,
Turk,
in Arundel v.
Cal.App.2d
16
er,
above,
as demonstrated
the uncertainty
293,
486,
(1936)
487,
],
60 P.2d
[
disappears when one eliminates the referee’s
rule
“Testimony
is stated thus:
which is
speculation that this incident occurred while
inherently improbable may
disregarded,
be
working
Waters was
full time at the Crown
* * * but to warrant such action there Lounge. The second circumstance appears
physical
must exist either a
impossibility of
to be related to
produce
Waters’ failure to
true,
being
the evidence
falsity
or its
must
any
relating
to the two post-injury
apparent,
be
any
without
resort
to infer
above,
incidents. As shown
un
ences or deductions.”
contradicted
opinion was that
whiplash incident
bearing
had no
Gray’s
opin
Shop,
Auto
58 Idaho
Pierstorff v.
ion
447-48,
Waters’
74 P.2d
See also
Finch,
the second incident
Sep
occurred
626-27,
Dinneen v.
after
tember
(1979);
The records
P.2d
581-82
would have
Hoglund,
Wood v.
Further,
purpose.
served little
(1998);
131 Idaho
as shown
below,
Mazzone,
neither
regarded
seems to have
while Dr. McCowin recorded any degree his observa- certainty. attestation to of medical notes, explanation tions in examination without to the of concern relates post-injury One further item by deposition, timing finding regard to symp- Commission’s of symptomology —not following Dr. performed thereof. The ref- work Waters tomology but the existence stability. be of medical would McCowin’sdetermination indicated that such eree in to time of certain work weight onset] little The Commission references [as “afforded corroborating persuasive initially imposed evi- of the absence “limitations/restrictions However, West,” testi- posits when Waters’ that even work dence.” to, by reports employers mony subsequent for three was corroborated West, it findings by, Dr. was disre- functional objective “suggests that has the [Waters] just timing. and not work capabilities perform type as to substance to this of garded ig- completely The Commission future.” failure to that purported Waters’ he was nores fact that Waters testified cause additional incidents did not to do two of the unable to continue work for appears to be the aggravate his condition had employers was similar what he to opinions ground upon which primary pre-injury done because neck and and, consequently, of Messrs. Gra- assert to be bit unfair to It seems weight. given no Even nat and Jordan were perform particular type can presented to show though no evidence was work, only testimony in the record when the any effect on the two incidents to unable do so because is he was condition, professional these Waters’ continuing pain from his work-related essentially ignored. To a cer- feeling degree, being tain sup- The order of the Commission sanction, discovery than an rather evidentia- ported by and should be substantial evidence placed empha- ry matter. referee some no evidence vacated. There was substantial produce pertain- failure records on the to sis support narrow to the Commission’s rather ing intervening incidents. She said finding onset of to time of “with credibility] “scrutiny height- is [of Waters’ symptomology testimo- [Waters’] relevant indicates did [he] ened because the record ny provid- not credible.” Commission employment rec- not disclose medical and substantially expanding ground ed no for ords.” Waters’ recollection credibility lack of to all of facility after each incident where he went testimony. There was no (and facility he testified to the he went same opinion that to contradict Dr. West’s incidents) vague. both was rather affected whiplash incident would not have facility Avenue in Idaho describes on Utah and, consequently, no Waters’ nerve Falls, across the from Wal-Mart. No street weight opin- ground give no to Dr. West’s facility records such contained and, consequently, give ion par- agency Apparently, neither record. expert testimony either of to the them. ty either or was able obtain Therefore, I parties’ experts. vocational may party indicated what efforts Neither order of the would vacate the regard. Along made have been in this proceedings. and remand the ease further compensation complaint, his worker’s signed all-encompassing medical release
authorizing Respondents any medi- to obtain they Waters did disclose
cal records wished. interroga- incidents in his answers to
the two deposition testimony both his
tories hearing. is no at the There any compel. Appar-
indication of motions any
ently, regarded potential neither side being pertinent to the case. This
may be because no evidence contradicts that neither incident caused symptoms.
additional