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Waters v. All Phase Constr.

Supreme Court of Idaho

March 18, 2014

WILLIAM J. WATERS, Claimant-Appellant,
ALL PHASE CONSTRUCTION, Employer, and STATE INSURANCE FUND, Surety, Defendants-Respondents

2014 Opinion No. 27

Appeal from the Industrial Commission of the State of Idaho.

James C. Arnold, Petersen Parkinson & Arnold PLLC, Idaho Falls, argued for appellant.

Steven R. Fuller, Fuller & Fuller PLLC, Preston, argued for respondents.

EISMANN, Justice. Chief Justice BURDICK, Justices W. JONES, and HORTON CONCUR. J. JONES, Justice, dissenting.


Page 993

[156 Idaho 260] EISMANN, Justice.

This is an appeal from the Industrial Commission in a worker's compensation proceeding in which the Commission held that the claimant had failed to prove that symptoms occurring after his industrial accident were caused by the accident, where following his industrial accident he had been twice injured in non-industrial accidents and refused to provide the medical records regarding those injuries. We affirm the order of the Commission.


Factual Background.

On June 15, 2006, William Waters (Claimant) was working as a drywall hanger and taper. While assisting his supervisor to hang drywall overhead, the supervisor instructed Claimant to push the drywall up with his head. When Claimant did so, he felt pain in his neck and right shoulder. On July 29, 2006, claimant sought medical care from a chiropractor. When his shoulder pain and weakness did not resolve, Claimant went to Gregory West, M.D., an orthopedic traumatologist, on September 26, 2006. After further testing and the failure of conservative therapies to relieve the symptoms, Claimant underwent an anterior cervical discectomy and fusion surgery at C5-6 on January 31, 2007. It is undisputed that the surgery was necessitated because of the injury Claimant received in the industrial accident.

On April 11, 2007, the orthopedic surgeon who performed the surgery examined Claimant. He noted that Claimant had minimal pain, no numbness or tingling, and no problems except some difficulty swallowing when he hyper-extended his neck in the shower and some discomfort when swallowing. The surgeon's notes recorded:

The patient really has minimal pain. Normal neurologic function in the upper extremities. He has no numbness or tingling. The only dysphagia is when he is in the shower, when he stretches his neck and hyper-extends and notes when he swallows he has a little discomfort. Apart

Page 994

[156 Idaho 261] from that, the patient has no problems. The patient has no dysphonia.

The surgeon released Claimant to return to light work with a 45-pound lifting restriction. On May 23, 2007, the surgeon again saw Claimant. The surgeon concluded that Claimant had reached medical stability, and he released Claimant to full activities, restricting him only from impact loading with axial activities, such as diving and gymnastics.

Claimant returned to drywall work, but was laid off due to his difficulty keeping up. He applied for jobs at a convenience store and at rental car agencies, but was not hired.

In July 2007, Claimant sustained a whiplash injury to his neck in a rear-end motor vehicle accident, for which he sought and received emergency medical care. During the first part of 2008, he tripped and fell while running, sustaining an injury to his right shoulder for which he also sought and received emergency medical care.

On August 28, 2008, Claimant returned to Dr. West for treatment of right shoulder pain. After examining Claimant and conducting further testing, Dr. West determined that he had shoulder weakness from a nerve injury likely due to Claimant's industrial accident.

Whether and to what extent Claimant was entitled to permanent partial disability benefits was tried to a referee. Claimant relied upon the testimony of two experts: Dr. West and a vocational rehabilitation consultant. Neither of them was provided with the medical records regarding the injuries Claimant sustained after his industrial accident, although Dr. West opined that a whiplash injury would affect Claimant's musculature, not his nerves. The central issue was whether the medical conditions identified by Dr. West after August 28, 2008, were caused by the industrial accident. The referee concluded that Claimant had failed to prove that they were. The referee recommended that Claimant had failed to prove any permanent partial disability in excess of a 12% permanent partial impairment, which the State Insurance Fund (Surety) had already paid.

The Commission reviewed the record and the referee's recommendation and adopted the referee's proposed findings of fact and conclusions of law as its own. The only causation testimony from a medical expert came from Dr. West. The Commission found that Dr. West's opinion testimony was not entitled to any weight because it was based upon Claimant's version of his symptoms and their onset and Claimant's account was not credible. The Commission reasoned as follows:

42. The only evidence of deterioration in Claimant's condition, different from that observed by [the orthopedic surgeon], for fifteen months following May 2008, consists of Claimant's testimony. As determined, above, Claimant's testimony is not credible with respect to the time of onset of his symptoms. Furthermore, there is inadequate evidence to corroborate Claimant's testimony that he experienced significant pain with drywall work before July 2007 which, if proven, may have constituted grounds for finding [the orthopedic surgeon's] MMI [maximum medical improvement] finding premature.
43. Similarly, after May 2007 but before he consulted Dr. West in August 2008, Claimant sustained a whiplash-type injury to his neck, and, possibly, a trip and fall injury to his right shoulder. It is undisputed that Claimant sustained these injuries to the very locations he claims were only permanently injured as a result of his industrial accident. Claimant has failed to prove that the complaints with which he presented after August 28, 2008 are referable to the subject accident as opposed to one or more of the intervening events. Therefore, the symptoms reported to Dr. West cannot be assumed to have existed, either as of the date [the orthopedic surgeon] found Claimant reached MMI, or because of the industrial injury. As a result, Dr. West's opinions with respect ...

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