2013 Opinion No. 67
Appeal from the Industrial Commission of the State of Idaho.
The decision of the Commission is affirmed. Costs on appeal are awarded to Respondent.
Stephen A. Meikle, Idaho Falls, attorney for Appellant.
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SUBSTITUTE OPINION, THE COURT’S PRIOR OPINION DATED APRIL 26, 2013 IS HEREBY WITHDRAWN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 I.C. § 72-451 for psychological injuries allegedly arising as a result of an industrial accident wherein Mazzone tripped and fell into a deep fat fryer while employed at Texas Roadhouse. Mazzone contends the Commission's order is not based on substantial and competent evidence.
II. Factual and Procedural Background
On November 13, 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 was assessed a GAF score of 55/85—the same assessment he had before the industrial accident.
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 75/85 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. Wixon 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 expressed an inability to function at work in addition to sleep disorders.
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 I.C. § 72-451. On July 19, 2011, the referee found that Mazzone failed to prove he was entitled to compensation and found that Respondents' expert was more credible than Mazzone's experts because Mazzone's experts did not review his earlier medical history. The Commission approved the referee's findings on August 5, 2011. On August 24, 2011, Mazzone requested a rehearing, which was denied by the Commission on September 16, 2011. On September 27, 2011, Mazzone filed a request for reconsideration of the order denying rehearing. On October 26, 2011, before Mazzone's request for reconsideration was decided by the Commission, Mazzone filed a Notice of Appeal.
III. Issues on Appeal
1. 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.
2. Whether the Commission improperly relied on evidence not properly before it.
3. Whether either party is entitled to attorney ...