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Hope v. Industrial Special Indemnity Fund

Supreme Court of Idaho

September 24, 2014

KEVIN D. HOPE, Claimant-Appellant,

2014 Opinion No. 102.

Page 547

Appeal from the Industrial Commission.

Industrial Commission order denying benefits, affirmed.

Robert K. Beck & Associates, PC, Idaho Falls, argued for appellant. Robert K. Beck argued.

Valdez Law Office, PLLC, Twin Falls, for respondent. Anthony M. Valdez argued.

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


Page 548

[157 Idaho 569] BURDICK, Chief Justice

Kevin Hope appeals the Idaho Industrial Commission's order that the Idaho Industrial Special Indemnity Fund (ISIF) was not liable for any of Hope's benefits. The Commission found that Hope was totally and permanently disabled, but had failed to prove that his disability was a result of pre-existing back and shoulder impairments combined with his last shoulder injury. Hope argued that the Commission's decision was based on errors of law and fact. We affirm the Commission's order.


Hope injured his right shoulder in 2003 while he was working for Empro Professional Services (Empro). He argued to the Industrial Commission that ISIF was liable for part of his income benefits because he was totally and permanently disabled due to pre-existing back and shoulder injuries that combined with his 2003 shoulder injury. If Hope's total and permanent disability results from the combined effects of his 2003 shoulder injury and impairments that pre-existed that injury, then ISIF is liable for the portion of income benefits caused by the pre-existing injuries. Tarbet v. J.R. Simplot Co., 151 Idaho 755, 757, 264 P.3d 394, 396 (2011).

In 2012, Hope resided in Teton, Idaho, and was 55 years old. Throughout his life, Hope worked primarily in general construction labor jobs. Hope completed a trade school carpentry program, but never got his GED. Most of Hope's work was as a carpenter framing buildings. In these jobs, Hope had to do heavy lifting, bending, and twisting, as well as carrying a tool belt that weighed about thirty pounds.

Hope tore his right shoulder's rotator cuff in 2000 while working for Pacific West Construction. That injury was diagnosed by Dr. Gary Walker, and Dr. Gregory Biddulph performed surgery in May 2000. After several follow-up visits, in November 2000 Dr. Biddulph released Hope with restrictions of no lifting more than 50 pounds, no repetitive or overhead activities, and no overhead reaching. In May 2001, Hope returned to Dr. Biddulph for bilateral shoulder pain. Dr. Biddulph found this pain was mild to palpitation and Hope still had a full range of motion and function. Dr. Biddulph recommended continued strengthening and assessed a 1% Permanent Partial Impairment (PPI) of the whole person as Hope's shoulder still had good functionality.

In 2002 and 2003, Hope worked with Blaser Construction through Empro. Hope's supervisor was Marty Blaser, who knew about his 2000 shoulder injury and that Hope needed help with heavy lifting. After starting this job, Hope returned to Dr. Biddulph reporting right shoulder pain with repetitive overhead reaching activities. Dr. Biddulph ordered an MRI arthrogram, which showed no evidence of any labral or rotator cuff tear. Dr. Biddulph recommended either a cortisone injection or physical therapy; Hope got a cortisone shot two weeks later. Hope then suffered an industrial back injury in August 2002. Dr. David Booth treated Hope for this

Page 549

[157 Idaho 570] back injury and eventually referred Hope to Dr. Walker.

Hope suffered another industrial right shoulder injury in December 2003. Dr. Biddulph again examined Hope. He determined after an MRI that Hope had torn his right shoulder's labrum and supraspinatus tendon. Dr. Biddulph performed arthroscopic surgery in February 2004. In May 2004, Dr. Biddulph released Hope to work with restrictions to not lift more than 30 pounds with no overhead, repetitive, or reaching activities. Hope has not been employed since December 22, 2003, the day he left work after his second right shoulder injury.

In March 2005, Hope requested that Dr. Robert Ward evaluate Hope's injuries. Dr. Ward used Dr. Biddulph's assessments and the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition. Dr. Ward assessed Hope's current shoulder impairment at an 8% of the whole person with 3% from his pre-existing shoulder injury and 5% for his 2003 shoulder injury. Dr. Ward also gave a 12% whole person impairment for Hope's back. The Commission found Dr. Ward's assessment credible, even more so than Dr. Biddulph's assessment.

At a May 2006 deposition, Hope described his back and shoulder symptoms. He rated his injuries equally in terms of the problems they gave him. Hope attributed these symptoms to his August 2002 and December 2003 injuries. Hope stated that Marty Blaser had recently offered him his job back at Blaser Construction, but Hope declined because he thought he was not capable of those duties. The Commission consolidated Hope's August 2002 back injury claim and his December 2003 right shoulder claim. Hope settled these claims against Empro prior to his April 5, 2012 hearing in front of the Commission's Referee. After the 2012 hearing, the parties took depositions from two vocational disability consultants and filed briefs.

The Referee submitted recommended findings of fact and conclusions of law to the Commission, which the Commission adopted and approved. The Commission found that Hope proved he was totally and permanently disabled due to medical and nonmedical factors, as well as under the odd lot doctrine. The Commission found Hope proved his right shoulder medical restrictions meant he could only return to work doing sedentary and light jobs, which Hope could not get because he had no experience, had no high school diploma, and was a disabled-looking older worker.

The Commission then decided that ISIF was not liable for Hope's benefits. The Commission found that although Hope had proven he had a pre-existing impairment that was manifest and a subjective hindrance, he could not recover because he did not prove his total and permanent disablement was the combined result of pre-existing and subsequent industrial injuries. The Commission noted that no physician gave an opinion on whether Hope's 2000 shoulder injury combined with his 2003 shoulder injury to cause Hope's permanent disability. Also, the Commission found that the medical records did not give a sufficient basis to draw the conclusion that Hope's 2000 and 2003 shoulder injuries combined to cause permanent disability.

The Commission also concluded that while Hope's lower back condition contributed significantly to his overall functional deficit, the weight of evidence meant Hope would have been totally and permanently disabled as a result of only his 2003 right shoulder injury. Hope filed a motion to reconsider, which the Commission denied. The Commission found the Referee discussed the combining with element and the analysis was well-supported by evidence in the record. Hope timely appealed.


On appeal, we review whether the Commission's findings of fact are supported by substantial and competent evidence. Eckhart v. Indus. Special Indem. Fund, 133 Idaho 260, 262, 985 P.2d 685, 687 (1999). Substantial and competent evidence is relevant evidence that a reasonable mind may accept to support a conclusion. Morris v. Hap Taylor & Sons, Inc., 154 Idaho 633, 636, 301 P.3d 639, 642 (2013). Substantial and competent evidence is more than a scintilla of evidence, but less than a preponderance. Id. We will not disturb the Commission's conclusions

Page 550

[157 Idaho 571] on the weight and credibility of the evidence unless those conclusions are clearly erroneous. Eckhart, 133 Idaho at 262, 985 P.2d at 687.

However, we exercise free review over questions of law in the Commission's decisions, which includes interpreting the worker's compensation statutes. Brown v. Home Depot, 152 Idaho 605, 607, 272 P.3d 577, 579 (2012). We liberally construe worker's compensation statutes in the employee's favor. Clark v. Shari's Mgmt. Corp., 155 Idaho 576, 579, 314 P.3d 631, 634 (2013). This Court reverses the Commission's decisions when the findings of fact do not as a matter of law support the order. I.C. ยง 72-732(4). The Commission must make findings sufficient for meaningful ...

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