McCabe v. Jo-Ann Stores, Inc.

IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 336'75

ELIZABETH J. MC CABE,

Claimant-Appellant, Boise, December 2007 Terrn

v. 2007 O;)inion No. 142

JO-ANN ST()RES_, INC., Employer, and Filed: December 27, 2007
LIBERTY NORTHWEST INSURANCE

CORP()RATION, Surety, Stephen Kenyon, Clerk

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l)efendants-Respondents.
Appeal from the industrial Cornrnission of the State of Iciaho.
The decision of the industrial Cornrnission is .
Ernil F. Pilce Jr., Tw"in Falls, for appellant

Harmon, Whittier & Day, Boise, for respondent Kent Day argued

HORTON, Justice.

Ciairnant Eliza‘oeth McCabe (McCabe) appeals from an order of the industrial
Cornrnission of the State of idaho (Comniission). in this case, the Court is asked to determine if
the Cornrnission erred by not properly considering McCabe’s loss of access to the open iabor
market in its decision that she was not entitled to a disability rating in excess of her uncontested

7% whole person permanent impairment rating. We affirm the order of the Cornmission.

I. FACTUAL AND PROCEI)URAL BACKGROUNI)

McCabe was, at the time of hearing, 52 years of age, divorced, with 7 children, four of
whom live at home with her on her farm in Filer, Idaho. She has a high school diploma and was
one hour short of completing an associates degree at the College of Southern Idaho.

Her prior work history includes a variety of unskilled labor positions such as farrn,
livestocic, food processing, laundry, c`laycare, and fish~hatchery work. She has, at all times

relevant to this claim, been engaged in small-scale farrning, including gardening, raising sheep,
larnbs, cows, and pigs, irrigation, and production and sales of handicrafts like soaps. Her farm
was at the time of her industrial injuries, and remains, her primary source of income

in Octo’oer 2003, McCabe began working part-time at Jo-Ann Pabrics in ’I`win Falls,
idaho where she cut and shelved fabric, cashiered, unloaded freight and ‘just whatever." 'i` his is
the only retail position she has ever held. She described her position at Jo~Ann fabrics as the
"easiest job" she ever did. Nonetheless, she suffered muscular strains to her back, neck, and
shoulder on three separate occasions in l\/lay, June, and October 2004. 'l`he initial muscle strain
injury occurred while she was moving several shelves of fal)ric. The second muscle strain injury
occurred when she was repeatedly bending down and reaching up to put end caps in the rolls of
fabric and her shoulder and back became sore. The third and final muscle strain injury occurred
when she was shaking out a length of fabric and her neck began to hurt. Neither Liberty
Northwest insurance Corporation (Surety) nor Jo~Ann Fabrics has disputed that i\/lcCahe
suffered muscle strain injuries on the three occasions in question

Throughont the period of successive injuries, McCabe sought repeated and frequent
examination by multiple medical practitioners Following all the incidents, her condition was
deemed medically stable and she was released back to fulltime work. She was prescribed rest,
Aleve and Tylenol, physical therapy, chiropractic care, and home exercise/stretching
Additionally, from tirne~to~time, temporary weight restrictions on lifting, pulling, pushing, and
overhead reaching were imposed Due to her restrictions, McCabe was offered some
accommodation in her duties at }o-Ann Fabrics, however, she continued to experience
discomfort and in january 2905 her stint of employment there ended.

'Surety accepted the cornpensability of McCabe’s industrial injury claims and agreed to
pay the medical hills she incurred relating to the subject accidents through the date of her
hearing Surety referred McCabe to Dr. Michael Phillips, an orthopedic speciaiist, for an
impairment evaiuation. His diagnostic evaluation, as supplemented by x-rays, indicated
preexisting spinal degeneration or arthritic change in the cervical spine for which he apportioned
a 5% whole person impairment rating He apportioned an additional 2% whole person rating for
superirnposition of the industrial injuries in question upon her preexisting degenerative disease
Therefore, her total perrnanent impairment level was assessed by Dr. Philiips at 7% whole

person. 'i`here is no disagreement between the parties as to McCabe’s impairment rating

in making his evaluation of her impairment and recommendation on fsiture work
restrictions, Dr. Philiips stated that he considered factors such as McCabe’s body-build, her age,
and gender. Dr. Phiilips stated that given McCabe’s "degenerative disease sooner or later she
would have trouhle" and that her work limitations were only "precipitated . . . in part" by the
superirnposition of her industrial accidents. Dr. Phillips determined that her condition (as it
related to the accident) was stable and no further medical treatment was necessary as a direct
result of her injuries Dr. Phiilips approved McCabe’s return to full time work in the light to
iight~medinrn category, albeit with modifications and restrictions of only occasional, 'oending,
twisting, sitting, and overhead activity and a lifting restriction of 25 pounds

Surety referred McCabe to the industrial Commission Rehahiiitation Division in
Novemher 2005 for return to work services. Michael Duhairne, a Field Rehabilitation
Consultant, was assigned the task of evaiuating McCabe’s possibility for reintegration into the
workplace Duhaime had direct contact with the Commission, McCabe, her employer, and her
lawyer. He considered her age, gender, education, geographic region, training, experience, and
the restrictions imposed by Dr. Phillips. Duhaime identified several jobs in the light and light~
medium category that were available at specified locations in the Twin Falls area and for which
McCabe was qualified and fit within her medical restrictions These jobs included cashier, retail,
and barista work, and even her time of injury position Duhaime’s report indicated that these
jobs could provide McCabe with remuneration equal to or greater than what she was making at
her time of injury and would provide a more steady and dependable fiow of income than her
farm. McCabe has chosen not to seek outside employment and continues to operate her farm in
Filer with the help of her children, although she now experiences pain and must work at a
reduced capacity.

McCabe was not satisfied with the results of her medical evaluation disability
assessment and filed a complaint with the Commission seeking: (1) compensation for permanent
partial disability in excess of her impairment rating of not less than 50% whole person; (2)
entitlement to additional medical care and authorization for a second medical evaluation; and (3)
an award of attorney fees After a hearing on the matter in which McCabe and Duhaime
testified, and after consideration of all the evidence submitted by both parties, the Ret`eree
concluded: (l) there was no indication that additional medical care was necessary in relation to

the industrial accidents nor was McCabe entitled to a second medical evalnation; (2) any claims

for attorney fees were waived; and (3) McCabe did not carry her burden in proving that she was
disabled in excess of her medical impairment rating of 7% whole person. The Commission
adopted the Findings of Fact, Conclusions of Law and Recomrnendation of the Referee in its
order. McCabe filed a motion for reconsideration The Commission denied the motion.
Mc€abe has appealed the order denying reconsideration to this Court.
II. STANI)ARD OF REVIEW

When this Court reviews a decision of the Commission, it exercises free review over
questions of law, but reviews questions of fact only to determine whether substantial and
competent evidence supports the Cornmission’s findings Eacret v. Clear'water Foresi‘ Indus.,
136 idaho 733, 735, 40 P.?>d 91, 93 (2002). Substantial and competent evidence is relevant
evidence that a reasonable mind might accept to support a conclusion. Id. Because the
Coi'nmission`is the factfinder, its conclusions on the credibility and weight of the evidence will
not be disturbed on appeal unless they are clearly erroneous. Eacret, 136 idaho at 735, 40 P.3d
93. This Court does not weigh the evidence or consider whether it would have reached a
different conclusion from the evidence presented Id. Wliether a claimant has an impairment
and the degree of perrnanent disability resulting from an industrial injury are questions of fact
Anderson v. Harper’s, Inc., 143 idaho 193, 195, 141 P.Bd 1062, 1064 (2006). in reviewing a
decision of the Commission, this Court views all the facts and inferences in the light most
favorable to the party who prevailed before the Commissicn. Smitk v. J.B. Parson Co., 127
idaho 93'7, 941, 908 P.Zd 1244, 1248 (1996}.

III. ANALYSIS

McCabe styles her appeal as a question of law. She asserts three errors in the
Comrnission’s determination of her permanent disability rating: (1) the Cornmission did not
adequately consider her diminished ability to compete in an open labor rnarl