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V. J. Magee v. Thompson Creek Mining

January 24, 2012

V. J. MAGEE, CLAIMANT-APPELLANT,
v.
THOMPSON CREEK MINING COMPANY, EMPLOYER, AND ACE FIRE UNDERWRITERS INSURANCE COMPANY, SURETY, DEFENDANTS-RESPONDENTS.



Appeal from the Industrial Commission of the State of Idaho.

The opinion of the court was delivered by: W. Jones, Justice

2011 Opinion No. 17

Stephen W. Kenyon, Clerk

The decision of the Industrial Commission is affirmed.

I. NATURE OF THE CASE

On May 6, 2000, Appellant, V. J. Magee, sustained a work-related injury causing harm to his lumbar spine and impacting the use of his right leg, leaving Magee in chronic pain. The Idaho Industrial Commission held an administrative hearing and issued a final decision on October 15, 2004. The Commission found that Magee suffered a compensable industrial accident, that he sustained a ten percent (10%) permanent partial impairment to the whole body, and sustained a twenty percent (20%) permanent partial disability to the whole body. Magee appealed to this Court, which affirmed the Commission's 2004 decision.

While that appeal was still pending, Magee filed a second complaint with the Commission, arguing that the Commission's 2004 decision should be modified because of a change in Magee's condition. Magee argued that his case should be re-examined in order to increase his benefits. The Commission held a second hearing where additional evidence was presented. On October 21, 2008, the Commission issued a final decision, concluding that Magee failed to prove that a change in condition had occurred. The Commission also found that its earlier 2004 decision did not result in manifest injustice and that the benefit claims, which were previously litigated, were barred by res judicata. Now, Magee brings a second appeal before this Court. On appeal, Magee argues that the Commission erred in determining that Magee failed to establish a change in condition, that the Commission erred in concluding that Magee's benefits claims were barred by res judicata, and that the Commission erred in concluding that the 2004 decision did not result in manifest injustice.

II. FACTUAL AND PROCEDURAL BACKGROUND

Appellant, V. J. Magee, currently resides in Radersburg, a small mining town in Montana with a population of approximately 150 people. Magee has an eighth grade education, no GED, and has primarily worked as a heavy laborer in underground mines and oil fields. Magee's previous jobs included working as a miner, a millwright, and a truck driver. In 1983, Magee suffered a back injury, which took him approximately three years to recover and return to heavy labor.

In May of 2000, Magee resided in Cascade, Montana, with a population of nearly 2,000 people, and was employed by Respondent, Thompson Creek Mining Company, as a millwright in Clayton, Idaho.*fn1 On May 6, 2000, Magee either slipped or misstepped while walking up a flight of stairs at Thompson Creek's mine, causing him to fall on his leg on the stair's landing. Magee finished out his shift, but went to the hospital later that night complaining of severe lower back pain radiating into his right leg. Magee was diagnosed with acute low back pain with sciatica and was kept in the hospital overnight to treat his pain. Magee sought treatment from his family physician, Dr. Curt G. Kurtz. Dr. Kurtz treated Magee for "acute low back strain, a stretched sciatic nerve, and an SI joint disruption" over weekly and biweekly visits. Dr. Kurtz' treatment regimen consisted of colchicine IV injections*fn2 to reduce swelling in the nerves and prolotherapy.

In September of 2000, Magee returned to work at Thompson Creek performing inventory in the warehouse for a period of one to five days.*fn3 Following that period, Magee did not return to work and Dr. Kurtz faxed a letter to Thompson Creek indicating that Magee's condition prevented him from working. Then, in 2001, Magee was employed as a highway flagger for four or five months. Magee ultimately quit that job because he was concerned that the high dosage of pain medication he was taking would cause him to injure himself on the job.

Thompson Creek requested that an independent medical examination of Magee's condition be performed. On May 1, 2001, Magee was examined by Dr. Michael Sousa, an orthopedic surgeon, and by Dr. Henry Gary, a neurosurgeon, who assigned Magee a permanent partial impairment rating of ten percent (10%) to the whole body. The doctors opined that Magee's prognosis for a full recovery was poor to fair, yet concluded that he was capable of performing sedentary to light work. In June of 2001, Dr. Kurtz reviewed Dr. Sousa and Dr. Gary's findings. Dr. Kurtz concluded that Magee sustained a twenty-eight percent (28%) permanent partial impairment to the whole body. Dr. Kurtz initially agreed with Drs. Sousa and Gary that Magee could return to work in a sedentary to light capacity. However, Dr. Kurtz changed his mind and later concluded that Magee was unable to work due to his chronic pain.

In December of 2002, Magee filed a complaint for workers' compensation benefits and for reimbursement of medical expenses resulting from his employment accident. On March 17, 2004, the Idaho Industrial Commission held an administrative hearing where the referee found that Magee suffered a compensable industrial accident during the scope of his employment, sustained a ten percent (10%) permanent partial impairment to the whole body, and sustained a twenty percent (20%) permanent partial disability to the whole body. The referee also found that Magee was entitled to reimbursement for medical expenses incurred, but was not entitled to continuing medical care in the future. The Commission issued a final decision on October 15, 2004, affirming and adopting the referee's findings of fact and conclusions of law. Magee filed a motion for reconsideration of the Commission's 2004 decision which was ultimately denied. Magee then appealed to this Court on January 12, 2005 to review the Commission's findings of fact regarding Magee's permanent disability ratings and his entitlement to future medical benefits. This Court affirmed the Commission's 2004 decision, but clarified that the Commission's denial of future benefits applied only to the colchicine injections and the prolotherapy,*fn4 and not to other forms of recommended medical care and prescription medications.

While that appeal was still pending, Magee filed a second complaint with the Commission, arguing that the Commission's 2004 decision should be modified, pursuant to Idaho Code section 72-719, because of a change in Magee's condition. Magee further argued that his case should be re-examined under Idaho Code section 72-719(3), in order to increase his benefits in the interests of correcting manifest injustice. On May 8, 2007, the Commission held a second hearing where additional evidence was presented. At the second hearing, the Commission considered all the evidence presented at the first hearing in 2004, as well as new evidence consisting of depositions of ...


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