Presnell v. Kelly

BAKES, Justice,

concurring in part and dissenting in part:

I concur with all of the majority opinion except that part which reverses and remands for a commission determination of the amount of money paid to correct the malpractice committed by Dr. Howar. That issue was never raised by the appellant on appeal, nor was it raised in the commission below.

The Industrial Commission, in its opinion, states, “The only issue before the commission is the extent of the permanent disability, if any, which resulted from the claimant’s accident of December 26, 1979.” After the commission’s decision, the claimant filed a petition for reconsideration with the commission. The petitioner requested the commission to reconsider its 15% disability rating, renewing her argument that claimant was totally disabled. The petition further argued against the commission’s order allowing subrogation, stating that “the net settlement of $4,543.13 fails to even compensate Mrs. Presnell for the pain, suffering and discomfort resulting from said alleged malpractice,” and “under such circumstances, it is herein respectfully urged that claimant has, in fact, not made a [double] recovery as against a third party from which the employer herein should be entitled to subrogation rights.” The petition did not allege or assert that the amount of medical expenses had not been proven to exceed the $4,534.13 figure.

On appeal to this Court the sole issue raised in the appellant’s brief was the issue of whether or not the commission had fully compensated the claimant for permanent partial disability by its 15% of the whole man award.1 No issue was raised, nor was *5any argument made in appellant’s brief concerning the surety’s right to subrogation or the amount thereof. The entire argument was directed toward the inadequacy of the commission’s 15% disability rating. Our cases are legion that issues not raised before the lower tribunal, or on appeal, will not be considered by this Court. See Robinson v. Spicer, 86 Idaho 138, 383 P.2d 844 (1963); Frost v. Mead, 86 Idaho 155, 383 P.2d 834 (1963) (holding that issues not raised below cannot be presented on appeal). Thus, I believe the Court errs today when it reverses on an issue which was never disputed before the Industrial Commission and has not been raised on appeal here.

Since the amount of medical expenses paid by the surety to correct the damaged artery was never an issue below, it is not surprising that the commission’s findings and the record do not specifically address that issue. Nevertheless, I believe the record is adequate to support the commission’s decision that the expenses paid by the surety as the result of the damaged artery exceeded the $4,534.132 remaining from the malpractice recovery after payment of costs and fees.

It would certainly be preferable in administrative proceedings, or any trial for that matter, if every factual issue which is raised was clearly and expressly resolved by evidence in the record, leaving nothing to inference. However, that is not always the case. And if the issue was never raised before the trial court or commission, it is seldom the case. Even when raised, trial courts and juries are often required to make findings based on inferences. In this case, construing the record and all reasonable inferences therefrom in favor of the party who prevailed below, as our prior cases say we must, Hazen v. General Store, 111 Idaho 972, 729 P.2d 1035 (1986); Higginson v. Westergard, 100 Idaho 687, 604 P.2d 51 (1979), I believe that, even if the issue had been raised on appeal, the record is adequate to support the commission’s findings.

By narrowly focusing on a single sentence in the stipulation colloquy of counsel, the majority misinterprets what occurred. The majority opinion says there was no stipulation or understanding as to the amount of the medical expenses, and thus nothing to support the commission’s decision, relying upon the following sentence:

“MR. PIKE: Here is what I don’t know: I have not seen the figures as to how much the surety has paid with reference to the additional medical procedure that was required.”

From that, the majority concludes that the issue of the amount of medical expenses attributable to the malpractice is unresolved in the record and remands for additional evidence and findings on that issue. However, if the entire colloquy is examined, it is apparent that the narrow response by Mr. Pike, focused on by the majority opinion, was not addressed to the issue of the amount of medical expenses, but was referring to “extended income benefits.” That is evident from an examination of the entire colloquy:

“MR. BARRETT: Also, if we might, preliminarily, Your Honor, we would offer a stipulation with Counsel that there has been third party proceedings in regard to this matter, a claim made by the claimant against, I believe it was, Dr. Howar. Is that correct?
“MR. PIKE: That’s correct.
“MR. BARRETT: For malpractice in conjunction with surgery which was performed upon her in the form of a laminectomy following this accident, and that the claimant has realized a net recovery of — that is, a recovery to her above and beyond attorney fees and costs in the amount of $4500.
“We would offer a stipulation that upon any recovery the claimant may make in these proceedings that there would be an *6offset for a credit to the surety in that amount; that is, the net recovery only, the $4500.
“MR. PIKE: Mr. Geddes, what Mr. Barrett says is correct as far as the amount that is recovered, the net to the client. That is a correct figure. As to whether or not I would stipulate that the surety is entitled to an offset, I am not prepared to do that.
“MR. BARRETT: Your Honor, may I inquire as to what the issue may be in regard to that so that we will know in what manner we are to proceed? In other words, do you agree that the surety has paid all of the medical expenses that were incurred relative to the repair of the damage that was caused by the malpractice?
“MR. PIKE: Yes, I would stipulate to that.
“MR. BARRETT: And that they have paid any extended income benefits resulting from that procedure included in the payments that they have made?
“MR. PIKE: Here is what I don’t know: I have not seen the figures as to how much the surety has paid with reference to the additional medical procedure that was required. I have not been furnished that information. And I also do not know how much actual extension of care this lady needed because of the alleged malpractice of Dr. Howar. If I could have that information, perhaps then I could enter into a stipulation.” (Emphasis added.)

A careful reading of the entire colloquy reflects that the portion of the discussion quoted in the majority opinion reflects that the discussion was not about medical expenses at all, but about “extended income benefits.” Previous to the hearing the surety had paid temporary benefits based upon the surety’s evaluation of a 10% impairment rating. The claimant was contending total disability, and the commission ultimately found 15% disability which resulted in additional benefits to the claimant over the amount of temporary benefits previously paid for the 10% impairment. That is clearly pointed out in the deposition of Eugene Kirkpatrick from the following questions and answers.

“Q. All right. So do I understand that if there would be no recovery by Mrs. Presnell in the Worker’s Compensation case over and above what she had received to date, that is, the 10 percent rating, that USF & G would not make a claim back against Mrs. Presnell worth $4,500?
“A. We would not attempt to get any recovery from what we have paid to—
“Q. Well, let us assume in the Presnell case that she recovered an additional $5,000 over and above what she’s been paid because of ‘disability over and above the impairment.’
“What was your understanding of what would be the result insofar as the 4,500 subrogated interest is concerned?
“A. That we would be able to take credit for our subrogated interest
against anybody that we might have to pay subject to a negotiated amount. “Q. Did you at any time agree with Mr. Pike or Mr. Bithell to waive your subrogated interest?
“A. No.” (Emphasis added.)

The issue upon which the majority opinion reverses was not really questioned or in doubt in the proceedings below. In Defendant’s Posthearing Memorandum Brief before the Industrial Commission, page 19, the following is found:

“In this case, the claimant has recovered a net of $4,500 from a recovery of $10,-000 in the third party malpractice claim against Dr. Howar, orthopedic surgeon, who performed the surgery in this case. The amount has been stipulated to by the parties. The parties .have also stipulated that the amounts paid by the surety in this case relative to the malpractice claim exceed $4,500.”

Further, in Defendants’ Reply Brief to Claimant’s Brief in Support of Motion for Reconsideration, page 2, the following is stated:

“The second point raised in claimant’s motion for reconsideration is that the defendant surety is not entitled to an offset for amounts paid by the surety for *7medical expenses incurred through the alleged malpractice of Dr. Howar, orthopedic surgeon. Included in the record before the Industrial Commission is a stipulation by the parties that the amount in question ($4,543.13) is the amount paid by the surety for medical expenses incurred by the claimant as a result of the alleged malpractice of Dr. Howar.”

Continuing on page 15 of the reply brief:

“In this case, the claimant’s net recovery in the third party malpractice action was less than the amounts required to be paid by the surety due to the alleged malpractice of Dr. Howar. Thus, in accordance with the foregoing decisions, the surety is most certainly entitled to the full offset given the fact that the surety paid in excess of what the claimant received by way of net recovery in the third party proceedings.”

Finally, in respondent’s brief on appeal in this Court, page 42, the respondent restates, verbatim, the quote immediately above, from page 15 of its earlier brief. Then, continuing on page 45, is this statement:

“On the issue of right of subrogation under the provisions of I.C. § 72-223, it should be noted that the amount expended by the surety due to the alleged malpractice of Dr. Howar was stipulated and agreed upon by the parties. It should further be noted that the parties agreed that these amounts were paid by the surety.”

Plaintiff never denies in any of its briefs, or anywhere else, the defendants’ statements as to the actual amount expended. Plaintiff’s only response was that quoted in the majority opinion, ante at 4, 740 P.2d 46, relating to “extended income benefits,” and not medical expenses.

Accordingly, I believe the record is adequate to support the commission’s findings, assuming that the issue of the amount of medical expenses paid had been raised both in the commission and on appeal. However, it was not raised in either, and therefore the commission’s order should be affirmed in its entirety.

. The appellant's brief states the sole issue to be as follows:

"ISSUES PRESENTED ON APPEAL
"The issue on appeal in these proceedings is whether the Industrial Commission erred in its Findings of Fact and Conclusions of Law in that the same failed to indicate the testimony *5adopted by the Commission and the reasoning the Commission used in reaching its conclusions. Further, the Industrial Commission failed to fully compensate the claimant for permanent partial disability pursuant to Idaho Code 72-423.”

. This figure is sometimes transposed in the record as $4,543.13.