Opinion No. 18
from the Industrial Commission.
from Industrial Commission ruling, affirmed.
Clyel Berry, Chartered, Twin Falls, for appellant. L. Clyel
Augustine Law Offices, PLLC, Boise, for respondents. Paul J.
BURDICK, CHIEF JUSTICE.
Leroy Hartgrave brings this appeal from the Idaho Industrial
Commission (the Commission). Hartgrave sustained injuries to
his left knee while working for the City of Twin Falls (the
City) on February 3, 2009, and August 23, 2012. Although
Hartgrave's left knee injuries and corresponding
treatments were covered by Idaho's Workers Compensation
Act, Hartgrave contends the left knee injuries aggravated
preexisting degenerative joint disease in his right knee and
ultimately required a total knee arthroplasty (TKA) in his
right knee. The Commission rejected Hartgrave's position
and ruled that Hartgrave's right TKA was not compensable.
Hartgrave timely appeals that ruling and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
has worked for the City's Street Department since 1978.
While working on February 3, 2009, Hartgrave injured his left
knee. As Hartgrave explained the injury,
[he] was doing a pavement survey with a couple of other guys.
[He] was outside of the truck. [He] was running a measuring
wheel down the road, and [he] stepped on a piece of uneven
blacktop there. [He] didn't see it, and [he] stepped on
it. As soon as [he] did, [he] felt his knee pop.
initially "didn't think too much about it[, ]"
but as the day progressed, "it got much worse." As
a result, Hartgrave visited Dr. Douglas Stagg, M.D., on
February 17, 2009. Dr. Stagg noted that Hartgrave
"ambulate[d] favoring the left knee enough that it
affect[ed] his gait with a slight limp[, ]" cleared
Hartgrave for normal work, and prescribed a brace,
"lot[s] of ice, " and "Motrin 600 mg
t.i.d." Due to persistent pain in his left knee,
Hartgrave visited Dr. Stagg twice more before he was referred
to Dr. Tyler McKee, D.O., for an orthopedic evaluation.
McKee performed that evaluation on March 13, 2009, diagnosed
a meniscal tear in Hartgrave's left knee, and recommended
an "arthroscopy of the left knee with partial lateral
meniscectomy." Although that visit arose from the injury
to Hartgrave's left knee, Dr. McKee evaluated
Hartgrave's right knee and noted no tenderness or
instability and full strength and range of movement in the
right knee. However, after reviewing bilateral x-rays, Dr.
McKee discovered that Hartgrave suffered from "pretty
severe" osteoarthritis in his right knee, and, in fact,
Hartgrave was actually "bone on bone" in his right
knee at that time. As such, during the March 13, 2009, visit,
Dr. McKee inquired whether Hartgrave was interested in a
right TKA at that time, but Hartgrave responded that he had
no pain in his right knee and did not want to pursue the
procedure. Regarding his left knee, Hartgrave obtained
worker's compensation approval from the Idaho State
Insurance Fund (ISIF) and underwent Dr. McKee's
recommended left knee surgery on May 6, 2009. He returned to
work sometime during June or July 2009.
however, continued suffering from persistent pain in his left
knee and hip. He visited Dr. James Retmier, M.D., on August
30, 2010, for a second opinion of his left knee. Dr. Retmier
surmised that Hartgrave had "failed all forms of
conservative care and is a candidate for [(a left TKA)]"
and, accordingly, further noted that "we will ask
[worker's compensation] for authorization and then plan
response to Dr. Retmier's evaluation, ISIF enlisted Dr.
Brian Tallerico, D.O., to perform an independent medical
examination (IME), which occurred on December 16, 2010. After
evaluating Hartgrave's left knee, Dr. Tallerico concluded
"[t]here is absolutely no need for a [(left TKA)] in
this individual, and it certainly is not related to the
industrial injury of February 3, 2009." Although that
visit arose from the injury to Hartgrave's left knee, Dr.
Tallerico noted that Hartgrave expressed having
"problems with the right knee in the past (open
meniscectomy in 1971 with ongoing swelling and
symptoms)[.]" Dr. Tallerico further noted that,
"[i]nterestingly enough, [Hartgrave's] right knee is
in much worse shape than his left knee with significant
lateral compartment collapse and loss of cartilage
interval." Dr. Tallerico ultimately concluded that the
"[p]reexisting history of bilateral knee degenerative
joint disease [was] unrelated to the [February 3, 2009,
accident] on a more-probable-than-not basis and not
aggravated by it." Thereafter, ISIF denied Dr.
Retmier's recommendation for a left TKA, and Hartgrave
returned to work.
working on August 23, 2012, Hartgrave sustained another
injury to his left knee. As Hartgrave explained, "[he]
was running a water truck. [He] went to get out of the truck.
[He] was holding onto a bar here, and [his] foot slipped off
the bottom step of the truck. When [he] hit the ground, [he]
twisted around; and it hurt the [left] knee." Hartgrave
visited Dr. McKee for treatment. Dr. McKee conducted x-rays
that revealed "degenerative joint disease of the lateral
compartment of both knees. It is worse on the right than the
left." Dr. McKee ultimately recommended a left TKA.
After obtaining worker's compensation approval, Hartgrave
underwent the procedure on March 13, 2013.
spent approximately six weeks on crutches after the left TKA.
He attended several follow-up visits with Dr. McKee, but he
never complained of pain in his right knee and instead only
complained of pain in his left knee and hip. On August 9,
2013, Dr. McKee concluded Hartgrave had reached maximum
medical improvement and authorized him to return to work with
restrictions of no squatting, kneeling, or lifting weight in
excess of fifty pounds.
November 8, 2013, Hartgrave visited Dr. McKee and reported
pain in his right knee. Dr. McKee diagnosed "[s]evere
degenerative joint disease of the right knee with a lesser
degree on the left." Even though Hartgrave had never
before complained of right knee pain to Dr. McKee, and even
though Dr. McKee had never noticed Hartgrave limping with
regard to the right leg, Dr. McKee and Hartgrave discussed
treatment options and decided to proceed with a right TKA.
That procedure was performed on November 25, 2013. Hartgrave
initially did not seek worker's compensation approval for
the right TKA and instead billed his health insurer.
Hartgrave later testified he did not know why he did not seek
worker's compensation approval for the right TKA.
on January 23, 2014, Hartgrave filed two worker's
compensation complaints. In the first, Hartgrave cited the
February 3, 2009, accident and sought relief of permanent
partial impairment, disability benefits, medical benefits for
the "injury to right knee, culminating in right TKA,
" and attorney fees. In the second, Hartgrave cited the
August 23, 2012, accident and sought relief identical to that
requested in his first complaint. The City and ISIF
(collectively, Respondents) answered both complaints and
denied liability, and the Commission consolidated both cases.
parties eventually entered into a settlement agreement that
resolved most issues, but the settlement agreement expressly
left unresolved whether Hartgrave's right TKA is
compensable. When that issue was submitted to the Commission,
the Referee's recommendation reasoned that an
"accident" did not aggravate the preexisting
degenerative joint disease in Hartgrave's right knee and
concluded that Hartgrave's right TKA is not compensable.
The Commission agreed with the Referee's ultimate
conclusion that Hartgrave's right TKA is not compensable,
but employed different reasoning. As the Commission reasoned,
Hartgrave's right TKA "was necessitated by the
natural progression of his arthritis and unrelated to the
industrial injuries." Hartgrave timely appeals that
ISSUES ON APPEAL
the Commission's ruling that Hartgrave's right TKA is
not compensable based on substantial, competent evidence?
Should attorney fees be awarded on appeal?
STANDARD OF REVIEW
appeal from the Commission,
this Court reviews "whether the Commission's
findings of fact are supported by substantial and competent
evidence, " but freely reviews its legal conclusions.
Shubert v. Macy's W., Inc., 158 Idaho 92, 98,
343 P.3d 1099, 1105 (2015), abrogated on other grounds by
Chavez v. Stokes, 158 Idaho 793, 353 P.3d 414 (2015).
"Substantial and competent evidence is relevant evidence
which a reasonable mind might accept to support a
conclusion." Id. "We will not disturb the
Commission's findings on the weight and credibility of
the evidence unless those conclusions are clearly erroneous,
" id. nor will this Court "re-weigh the
evidence or consider whether we would have drawn a different
conclusion from the evidence presented." Watson v.
Joslin Millwork, Inc., 149 Idaho 850, 854, 243 P.3d 666,
670 (2010). All facts and inferences are viewed in the
"light most favorable to the party who prevailed before
the Commission." Hamilton v. Alpha Servs., 158
Idaho 683, 688, 351 P.3d 611, 616 (2015). However,
workers' compensation laws are liberally construed
"in favor of the employee, in order to serve the humane
purpose" behind the law. Id.
Estate of Aikele v. City of Blackfoot, 160 Idaho
903, 908, 382 P.3d 352, 357 (2016).