IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 36352
V. J. MAGEE, )
) Twin Falls, November 2011 Term
Claimant-Appellant, )
) 2011 Opinion No. 17
v. )
) Filed: January 24, 2012
THOMPSON CREEK MINING )
COMPANY, Employer, and ACE FIRE ) Stephen W. Kenyon, Clerk
UNDERWRITERS INSURANCE )
COMPANY, Surety, )
)
Defendants-Respondents. )
________________________________________)
Appeal from the Industrial Commission of the State of Idaho.
The decision of the Industrial Commission is affirmed.
Fuller Law Offices, Twin Falls, for appellant. Daniel S. Brown argued.
Moffatt, Thomas, Barrett, Rock & Fields, Chartered, Boise, for
respondent. Andrew J. Waldera argued.
_____________________
W. JONES, Justice
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
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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. 1 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 2 to reduce swelling in the nerves and
prolotherapy.
1
Although Magee’s residence was in Montana, he had a temporary home in Clayton, Idaho for his job. This case is
before the Idaho Industrial Commission because the accident occurred at the mine in Clayton, Idaho.
2
Dr. Kurtz’ use of Colchicine IV to treat acute back pain was an off-label use because the FDA has only approved
its use for acute gout.
2
In September of 2000, Magee returned to work at Thompson Creek performing inventory
in the warehouse for a period of one to five days. 3 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
3
The exact length of time is disputed by the parties and the Commission did not make a finding on this factual issue.
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prolotherapy, 4 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 Magee’s treating physician, Dr. Kurtz, Dr. Jim Deming,
Magee’s psychologist, Dr. Roy Tyler Frizzell, Magee’s neurosurgeon, and Mr. Crum, a
vocational rehabilitation consultant.
Based on the 2007 hearing, the Commission found that Magee moved to the remote town
of Radersburg, Montana, that Magee described his physical condition as “about the same as it
was” during the time of the Commission’s 2004 hearing, and that Magee has attempted to find
employment but has been unsuccessful in maintaining a job due to pain or problems commuting.
The Commission also found the following facts: Magee is not currently registered with Job
Service, or any vocational agency, and receives disability benefits from Social Security of
approximately $1,100 per month. Dr. Kurtz testified that Magee should not return to any form of
employment because he has the tendency to over-exert himself on jobs. Dr. Kurtz stated that
Magee might be able to do light-duty or part-time employment. Magee is still seeing Dr. Kurtz
for treatment and is still taking pain medication daily. Dr. Deming started seeing Magee in July
of 2005 to treat his depression. Dr. Deming diagnosed Magee with “major depressive disorder
with suicidal ideation related to chronic pain and attributable to the May 2000 industrial injury.”
Dr. Deming opined that Magee can maintain some level of work for three to five hours per day.
Dr. Frizzell implanted Magee with a spinal stimulator to diminish pain signals using electrical
currents. Dr. Frizzell opined that Magee could work in a light to medium work capacity. Mr.
Crum testified that Magee’s employment options are limited by his age, lack of skills, and
physical impairments. Mr. Crum concluded that Magee “has no reasonable ability to access jobs
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The Commission found Dr. Kurtz’s treatments to be somewhat controversial and not proven to be medically
necessary. At the 2004 hearing, Dr. Gary testified that Magee should discontinue the colchicine IV treatment.
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in his labor market and attempts at employment would be futile.” Nevertheless, Mr. Crum’s
evaluation was limited to the labor market in Radersburg and Mr. Crum acknowledged that a
larger market would produce greater opportunities for employment. Mr. Crum ultimately found
that Magee’s employment restrictions were essentially the same as they were in 2004.
On October 21, 2008, the Commission issued a final decision and concluded 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. Again, Magee filed a motion to reconsider the
Commission’s 2008 decision which was denied. Now, Magee brings a second appeal before this
Court to review the Commission’s latest decision. 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.
III. ISSUES ON APPEAL
1. Whether the Industrial Commission erred in determining that Magee failed to establish a
change in condition?
2. Whether the Industrial Commission erred in concluding that its 2004 decision did not
result in manifest injustice?
3. Whether the Industrial Commission erred in barring Magee’s benefits claims under the
doctrine of res judicata?
IV. STANDARD OF REVIEW
In reviewing decisions of the Industrial Commission on appeal to this Court, Idaho Code
section 72-732 sets forth the standard of review. This Court may affirm or set aside an order or
award made by the Commission, “or may set it aside only upon the following grounds: (1) the
commission's findings of fact are not based on any substantial competent evidence; (2) the
commission has acted without jurisdiction or in excess of its powers; (3) the findings of fact,
order or award were procured by fraud; (4) the findings of fact do not as a matter of law support
the order or award.” I.C. § 72-732; Ewins v. Allied Sec., 138 Idaho 343, 345–46, 63 P.3d 469,
471–72 (2003). In other words, “[t]he Commission has wide discretion in making factual
determinations regarding worker’s compensation claims.” Mulder v. Liberty Nw. Ins. Co., 135
Idaho 52, 55, 14 P.3d 372, 375 (2000).
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When reviewing a lower court or agency’s discretionary decision, this Court must
conduct a three-part inquiry to determine whether the lower court abused its discretion. “A trial
court does not abuse its discretion if it (1) correctly perceives the issue as discretionary, (2) acts
within the bounds of discretion and applies the correct legal standards, and (3) reaches the
decision through an exercise of reason.” West Wood Invs., Inc. v. Acord, 141 Idaho 75, 82, 106
P.3d 401, 408 (2005) (citing Sun Valley Potato Growers, Inc. v. Texas Refinery Corp., 139 Idaho
761, 768, 86 P.3d 475, 482 (2004)). This Court will not disturb the Commission’s findings of
fact unless they are clearly erroneous and not supported by substantial and competent evidence.
Ewins, 138 Idaho at 346, 63 P.3d at 472 (citing Dennis v. School Dist. No. 91, 135 Idaho 94, 96,
15 P.3d 329, 331 (2000)). Nevertheless, the Court exercises free review over the Commission’s
legal conclusions. Ewins, 138 Idaho at 346, 63 P.3d at 472 (citing Moore v. Melaleuca, 137
Idaho 23, 26, 43 P.3d 782, 785 (2002)).
V. ANALYSIS
A. The Industrial Commission Did Not Err in Determining that Magee Failed to
Establish a Change in Condition
Magee asserts that he sustained a change in condition pursuant to Idaho Code section 72-
719(a). The statute allows the Commission to modify an award if there is a “[c]hange in the
nature or extent of the employee’s injury or disablement.” I.C. § 72-719(1)(a). When a claimant
applies for modification of an award due to a change in condition under I.C. § 72-719(a), the
claimant bears the burden of showing a change in condition. Matthews v. Dep’t of Corr., 121
Idaho 680, 681, 827 P.2d 693, 694 (1992) (citing Boshers v. Payne, 58 Idaho 109, 70 P.2d 391
(1937)). The claimant is “required to make a showing before the Commission that he had an
increased level of impairment, and to establish with reasonable medical probability the existence
of a causal relationship between the change in condition and the initial accident and injury.”
Matthews, 121 Idaho at 681–82, 827 P.2d 694–95 (internal citations omitted).
The Commission found that the only changes in Magee’s condition since 2004 were the
onset of depression and the implantation of the spinal stimulator. Magee contends that the
development of a major depressive disorder leading to suicidal thoughts was directly related to
the chronic pain caused by his May 2000 industrial accident. The Commission concluded that
there is “no evidence that [Magee’s] physical limitations were impacted by his depression and/or
that [Magee’s] depression impacted his disablement.”
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This Court finds that there was substantial evidence in the record to support the Industrial
Commission’s finding that Magee failed to establish a change in condition warranting
modification of his award. Magee testified that his physical condition has not changed and the
record shows that Magee’s depression has improved. As a result of therapy and prescription
anti-depressants, Magee is no longer suicidal. Moreover, evidence suggests that the implantation
of the spinal stimulator has contributed to his improvement by significantly reducing his daily
level of pain. Magee reported a sixty-five percent (65%) reduction of pain in the spine after the
surgery and consequently decreased his dependence on pain medication by half. Drs. Kurtz and
Frizzell both acknowledged that Magee’s physical condition has improved as a result of the
spinal stimulator by reducing his reliance on pain medication. Magee is still capable of work in
the sedentary to light capacity, as he was in 2004. Mr. Crum, the vocational consultant agreed
that his employment capabilities have improved since the implantation of the spinal stimulator.
Therefore, the record supports the Commission’s finding that Magee failed to prove how his
depression decreased his physical capabilities. The Industrial Commission recognized that it had
discretion, acted within the bounds of such discretion, and reached its decision by an exercise of
reason. As such, this Court holds that the Commission did not abuse its discretion in concluding
that Magee failed to show a change in condition.
B. The Industrial Commission Did Not Err in Concluding that the Commission’s 2004
Decision Did Not Result in Manifest Injustice Warranting Correction
The Commission may review a case to correct manifest injustice. I.C. § 72-719(3). In its
2008 decision, the Commission reviewed its initial findings of fact and conclusions of law made
in the 2004 decision to determine if the award resulted in manifest injustice that warranted
correction. The Commission reviewed the record and concluded that Magee’s initial disability
award in 2004 did not produce manifest injustice.
This Court finds that the Industrial Commission did not err in concluding that there was
no manifest injustice in its initial 2004 decision. The Commission found that Magee has made
minimal attempts to find employment and that Thompson Creek continues to pay for Magee’s
medical treatments and prescription medications, excluding his colchicine injections, which are
mostly covered under Medicare. The Commission found that there was no evidence that the
assignment of a 10% permanent partial impairment rating created manifest injustice. Further,
Magee has been receiving disability benefits from Social Security consistent with a 20%
permanent partial disability rating. The Commission further explained that it did not find Mr.
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Crum’s vocational analysis convincing because it was restricted to the limited employment
opportunities in the small town of Radersburg, Montana. The Commission noted that a claimant
cannot prove permanent disability by changing his residence, and thus, the Commission must
consider the new residence and the claimant’s residence at the time of the injury. See Lyons v.
Indus. Special Indem. Fund, 98 Idaho 403, 407 n.3, 565 P.2d 1360, 1364 n.3 (1977). Thus, this
Court finds that there is substantial evidence to support the Commission’s finding that its initial
2004 decision did not result in manifest injustice.
C. The Industrial Commission Did Not Err in Barring Magee’s Benefits Claims under
Res Judicata
This Court has held that the doctrine of res judicata applies to agency decisions,
including decisions of the Industrial Commission. Welch v. Del Monte Corp., 128 Idaho 513,
516, 915 P.2d 1371, 1374 (1996). In Idaho, the doctrine of res judicata means that “in an action
between the same parties upon the same claim or demand, the former adjudication concludes
parties and privies not only as to every matter offered and received to sustain or defeat the claim
but also every matter which might and should have been litigated in the first suit.” Farmers
Nat’l Bank v. Shirey, 126 Idaho 63, 70, 878 P.2d 762, 769 (1994) (quoting Joyce v. Murphy Land
& Irrigation Co., 35 Idaho 549, 553, 208 P. 241, 242-43 (1922)).
Magee sought to re-litigate issues regarding medical benefits, permanent impairment and
permanent disability due to a change in condition and/or to correct manifest injustice. Yet, the
Commission concluded that Magee failed to meet his burden in proving that a change in the
nature or extent of his injury occurred or that the Commission’s initial decision resulted in
manifest injustice. If the Commission had made such findings, then it would have reexamined
the case to re-litigate the issues regarding Magee’s medical benefits and disability award.
However, because Magee failed to meet the threshold showing that would warrant re-opening the
previously litigated issues, the Commission was correct to bar those claims under res judicata.
This Court finds that the Industrial Commission did not err in concluding that Magee’s issues
regarding benefits and disability, which were previously litigated in 2004, were barred under the
doctrine of res judicata.
D. Neither Party Is Entitled to Attorney’s Fees on Appeal
Thompson Creek requests reasonable attorney’s fees under Idaho Code section 12-121,
arguing that Magee’s arguments on appeal are not supported in law or fact. Although it is a
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close call, the Court is unable to conclude that Magee pursued this appeal frivolously. Thus, this
Court declines to award Thompson Creek attorney’s fees.
VI. CONCLUSION
The Court affirms the Industrial Commission’s conclusions that Magee failed to establish
a change in condition, that the Commission’s 2004 decision did not result in manifest injustice,
and that the issues regarding medical benefits and disability were barred under res judicata.
Costs awarded to Respondents.
Chief Justice BURDICK, Justices EISMANN, J. JONES and HORTON CONCUR.
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