Vernon v. Omark Industries

BAKES, Justice.

The Industrial Commission denied Vernon’s claim for worker’s compensation benefits, ruling that she had not proved that her injury arose out of and in the course of her employment. On appeal this Court vacated and remanded the case back to the commission, instructing it to “make more detailed factual findings and conclusions of law to support its ultimate holding.” Vernon v. Omark Industries, 113 Idaho 358, 361, 744 P.2d 86, 89 (1987) (Vernon I). On remand, the commission made new findings of fact and conclusions of law and again concluded that claimant failed to sustain her burden of proving that she suffered an accident as defined in I.C. § 72-102(14)(b).1 Claimant appeals. We affirm.

I

The new findings of fact and conclusions of law which the commission made can be summarized as follows. Claimant Vernon’s application for hearing stated the date of injury as “6-13-83 to 6-23-83 during work hours.” In June of 1983, claimant was 40 years old and had worked at Omark Industries (Omark) for approximately nine years. The last seven years had been spent packaging primers. She worked four 10-hour days per week, and her work included lifting trays of primers, weighing 28 to 56 pounds apiece.

Claimant testified on direct examination that she began to experience pain on June 13, 1983, while she was at work. On cross examination, however, she conceded (and the commission found) that all she remembers is that her low back began to hurt sometime around the middle of June, 1983.

Claimant continued to work through June 23, though she experienced increasing low back pain. On June 24, her day off, claimant consulted Dr. Skinner, a chiropractor whom she had previously seen for low back pain. Claimant subsequently saw Dr. Skinner eight more times, but never identified her pain as work related. Claimant also consulted Dr. Johnson, a general practitioner, on July 8, 21, and 28. During this period she did not report any work related injury to her employer. Rather, claimant told her supervisor that she was seeing Dr. Johnson for arthritis in her back.

Claimant’s back pain did not improve. On July 21, 1983, she went to the office of Dr. Colburn, an orthopedic surgeon in Lew-iston, Idaho. Claimant was there examined by Betty Imthurn, a nurse practitioner. According to the history recorded by Imt-hurn, (1) claimant complained of continuous pain in her right low back, radiating into the right thigh, calf, and occasionally into the foot; (2) sometimes she experienced sharp pain in the low back; (3) claimant first noticed her symptoms about five weeks earlier (mid-June) and they were unrelated to any particular activity or incident; and (4) claimant had experienced low back pain intermittently for the last 6 years, but denied any previous leg symptoms. Imthurn advised claimant to cease work; in compliance claimant stayed in bed most of the following week.

On July 28 claimant returned. It was then Imthurn’s impression that claimant had a herniated lumbar disc. Claimant was told to check with Dr. Colburn in two weeks, but claimant desired more immediate treatment so on July 29, 1983, she saw Dr. Adams, an orthopedic surgeon in Spokane, Washington. According to Dr. Adams’ history, claimant denied previously *488feeling pain in her back and legs, but reported that this particular injury was work related, that it occurred on June 15, 1983, and that the pain began in her back, then extended into the right leg. A myelogram and CAT scan were performed on August 8, disclosing a herniated disc. Claimant underwent surgery on August 23, 1983, and ultimately was released to return to work again on January 23, 1984. When asked to state the cause of claimant’s injury, Dr. Adams testified:

“[Bjasically, it would be an overuse syndrome. Principally, it doesn’t appear that there’s one particular episode that caused it, at least in my history. But the type of injury is consistent with the type of work that she has done.”

Claimant reported her injury to Omark on August 4,1983. In that report claimant did not state a date of injury, but stated the date of diagnosis as June 24, 1983. It is Omark’s policy to report any injury, no matter how minor, promptly after it occurs. Claimant was aware of the policy and had reported previous injuries in a prompt manner. Claimant testified, however, that she did not report this particular injury earlier because she was afraid she might be disciplined for excessive absence from work. Claimant claims she had received a previous warning for excessive absences. The commission found, however, based on the testimony of claimant’s supervisor, that claimant received no warning concerning absences until after she returned to work in January of 1984.

Claimant had a prior history of back trouble. In 1978 she pinched a nerve as she was lifting her baby. She received chiropractic treatment. In 1979 claimant suffered a back injury at work when she lifted a case of literature. She was subsequently treated by a general practitioner. On a third occasion, claimant fell down some stairs and hurt her tail bone. Claimant also had a series of back treatments by Dr. Skinner between November 26 and December 15, 1982. As stated in claimant’s deposition, the treatment was for back pain “close to the same area” where surgery was ultimately performed, but the pain’s cause was not described in Dr. Skinner’s records. Claimant also had appointments with Dr. Skinner on March 4 and May 5, 1983, but cancelled both appointments.

Based on this evidence, the commission was not persuaded that claimant injured her back at work in mid-June as claimed. Most significantly, the commission noted, claimant related no mishap or event which produced her low back pain. After reviewing the definition of “accident” contained in I.C. § 72-102(14)(b), the commission concluded that “Claimant has failed to sustain her burden of proving that she suffered an accident, that is, an unexpected, unde-signed and unlooked for mishap or untoward event connected with her employment which caused her injury.” Accordingly, claimant’s claim was denied and her application for hearing was dismissed. Claimant appeals. We affirm the commission’s decision.

II

The first issue before the Court is whether, construing the record most favorably to the party which prevailed below, here the defendants/respondents, Johnson v. Bennett Lumber Co., 115 Idaho 241, 766 P.2d 711 (1988), there is any substantial competent evidence to support the commission’s factual findings. Idaho Const., Art. 5, § 9; I.C. § 72-732(1); Blackwell v. Omark Industries, 114 Idaho 10, 752 P.2d 612 (1988). As the record here demonstrates, there is ample substantial competent evidence upon which the commission could have based its findings.

The burden of proof in an industrial accident case is on the claimant.

“A claimant in a worker’s compensation case has the burden of proving that he is entitled to benefits. The claimant must prove not only that he was injured, but also that his injury was the result of an *489accident arising out of and in the course of his employment. His proof must establish a probable not merely a possible connection between cause and effect to support his contention that he suffered an accident.” Neufeld v. Browning Ferris Industries, 109 Idaho 899, 902, 712 P.2d 600, 603 (1985) (emphasis added).

Further, in order to be entitled to benefits, claimant must prove that she suffered an “accident,” i.e., “an unexpected, unde-signed, and unlooked for mishap, or untoward event, connected with the industry in which it occurs, and which can be reasonably located as to time when and place where it occurred, causing an injury.” I.C. § 72-102(14)(b). Here, however, claimant made no such showing. Claimant has not testified to any “unexpected, undesigned, and unlooked for mishap, or untoward event” in her work. Rather, she conceded, “All I remember is I just started hurting around the middle of the month [June, 1983].” Further, in her deposition claimant testified as follows:

“Q. [By respondent’s attorney] There’s nothing else that you could add from your point of view that would further demonstrate that this incident did occur in the work place, that it was ...
“A. Other than the heavy lifting, it’s the continual heavy lifting.
“Q. Do you believe that’s what caused it yourself?
“A. Yes.
“Q. That it was just — it wasn’t an incident, it was just a continuing.
“A. Continuing lifting.
“Q. Continuing lifting. You believe that that’s what caused it?
“A. I believe that, yes.
“Q. Rather than just one sharp turn.
“A. Uh — huh.”2

Claimant attempted to establish that she suffered an “accident” by introducing the testimony of Dr. Adams. However, Dr. Adams’ testimony did not establish an “un-looked for mishap, or untoward event.” Instead, he stated, “Principally, it doesn’t appear that there’s one particular episode that caused it, at least in my history.”

Other evidence in the record also contradicts, rather than supports, claimant’s assertion that she suffered a compensable “accident.” First, when claimant saw chiropractor Skinner, she never identified her pain as work related. Second, during the period she was seeing Dr. Johnson, claimant did not report any work related injury to her employer — indicating instead that she was seeing Dr. Johnson for arthritis in her back. Third, according to the history recorded by Nurse Imthurn in Dr. Col-burn’s office, the symptoms claimant first noticed in mid-June were unrelated to any particular activity or incident; further, for the last six years claimant had experienced intermittent low back pain. Fourth, in her injury report to Omark, claimant did not state a date of injury and, in fact, did not make her report until six weeks after the alleged “accident,” even though claimant was aware of Omark’s policy requiring prompt reporting of injuries. And fifth, the record contains evidence that claimant’s problem may have been ongoing, not the result of an “unlooked for mishap, or untoward event.” On various prior occasions claimant had suffered back injuries, and between November 26 and December 15, 1982, chiropractor Skinner was treating claimant for back pain “close to the same area” where surgery was ultimately performed. Further appointments with Dr. Skinner were scheduled for March 4, and May 5, 1983, but were later cancelled by claimant.

Viewing the record in a light most favorable to the respondents prevailing below, *490there is more than ample evidence to support the Industrial Commission’s conclusion that “Claimant has failed to sustain her burden of proving that she suffered an accident, that is, an unexpected, unde-signed and unlooked for mishap or untoward event connected with her employment which caused her injury.”

The commission’s decision is supported by our decision in Hazen v. General Store, 111 Idaho 972, 729 P.2d 1035 (1986). In Hazen this Court affirmed the Industrial Commission’s denial of compensation because claimant Hazen’s injury was not the result of an “accident.” Hazen worked in a convenience store, and her regular duties included lifting cases of beer and pop. Her testimony indicated that in mid-May of 1983 she began to notice that she was tired, ached all over, and had a sharp pain in her right leg. The pain continued for several weeks and during that time she had discussions with her supervisor about it, although she never attributed the pain to her work or any accident occurring during her work. Hazen ultimately saw a chiropractor. The chiropractor’s health insurance claim form stated that Hazen’s problems were not work related. The chiropractor then referred Hazen to a neurologist who performed a CAT scan and myelogram. Hazen was advised by the neurologist that she had a herniated disc. Up to that time, claimant Hazen had never asserted that her medical problem was work related, or that it resulted from an accident which she had incurred during her employment. In her amended application for hearing, though, Hazen alleged that her accident and injury occurred between May 13, and May 23, 1983, claiming it resulted from lifting heavy crates and cases of beer and pop. At the hearing, Dr. Bowman, an orthopedic surgeon, testified that “there does not appear to be any specific incident which caused this lady to have a herniated disc which is documented by the record.” 111 Idaho at 973, 729 P.2d at 1036.

The Industrial Commission accepted the testimony of Dr. Bowman and found that claimant’s herniated disc was not the result of an accident, but had come on gradually over a long period of time. Dr. Bowman’s testimony was corroborated in part by claimant’s own testimony and the record in that case, which suggested that throughout the period from May of 1983, until after her surgery, claimant Hazen at no time attributed her problem to her employment, or an accident which occurred during her employment. Upon such a record, this Court in Hazen concluded:

“Accordingly, construing the record most favorably to the respondent in this matter, as we must, there is more than sufficient substantial, competent evidence to sustain the finding of the Industrial Commission ‘that the claimant’s herniated disc was not the result of an accident. ...’” 111 Idaho at 974, 729 P.2d at 1038.

The Hazen decision is controlling, and supports the commission’s decision.

Ill

The only other issue which we must consider is whether the following statement, found in the specially concurring opinion of Justice Huntley in Vernon I, and concurred in by Bistline, J., and Bengtson, J. pro tern., was a ruling as a matter of law that the claimant should prevail on remand to the commission:

“I would rule that on the basis of this record claimant has amply demonstrated that her back injury arose from her heavy lifting at work and that the accident has been reasonably located as to the time and place of its occurrence.” 113 Idaho at 363, 744 P.2d at 91.

We hold that this statement was not a ruling that the claimant should prevail as a matter of law on remand to the commission.

The majority opinion in Vernon I, written by Chief Justice Donaldson and concurred in by three other justices, and in which the pro tem. justice concurred in the result, “vacate[d] the commission’s decision *491and remand[ed] back to the commission with the instruction that it make more detailed factual findings and conclusions of law to support its ultimate holding.” Id. at 360-361, 744 P.2d at 88-89. Accordingly, the law of the case was not that claimant should prevail on remand; rather, it was that the case was remanded to the commission to make more detailed findings and conclusions.

The specially concurring opinion of Justice Huntley is not in conflict. Justice Huntley states, “I agree that this case should be remanded to the Industrial Commission for more appropriate and specific findings of fact and conclusions of law.” Id. at 362, 744 P.2d at 90. Hence, the decision of this Court in Vernon I, as reflected in both the majority opinion and in Justice Huntley’s special concurrence, was only that the Industrial Commission should reconsider the case and make more detailed findings of fact and conclusions of law. In Vernon I we did not reverse the commission and remand with directions “for the entry of an appropriate award to claimant,” as we did in Wynn v. J.R. Simplot Co., 105 Idaho 102, 105, 666 P.2d 629, 632 (1983). That would have been the appropriate form of order had we concluded that claimant Vernon was entitled to an award as a matter of law based upon the evidence in the record.

In sum, we hold that the record contains substantial competent evidence to sustain the commission’s findings, conclusions and order in this case. We also hold that the Industrial Commission correctly carried out our directive on remand from Vernon I. The decision of the Industrial Commission is affirmed. Costs to respondents. No attorney fees on appeal. •

SHEPARD, C.J., and JOHNSON, J., concur.

. “72-102. Definitions. — Words and terms used in the workmen’s compensation law, unless the context otherwise requires, are defined in the subsections which follow.

"(14) ‘Injury’ and ‘accident.’

"(b) ‘Accident’ means an unexpected, unde-signed, and unlooked for mishap, or untoward event, connected with the industry in which it occurs, and which can be reasonably located as to time when and place where it occurred, causing an injury.”

. This testimony given by claimant at her deposition was later reaffirmed by her at her hearing before the Industrial Commission. After respondent's counsel read the colloquy back to claimant, claimant testified:

"Q. If I were to ask you those same questions, would your answers be the same today?
“A. Yes.”