Bruce v. Clear Springs Trout Farm

*312SHEPARD, Justice.

This is an appeal by employer Clear Springs Trout Farm and its surety Aetna Casualty, from a decision of the Industrial Commission that claimant Bruce is totally and permanently disabled as a result of an industrial accident which she had while employed by Clear Springs. Employer and surety also assert error in the commission’s dismissal of the Idaho Industrial Special Indemnity Fund as a party. We affirm.

Bruce worked for the employer, cleaning, gutting, and weighing fish, starting in September 1977. At that time, she was 37 years old, had a work history limited to assembly-line jobs, and had an eighth grade education. On October 25, 1977, she slipped and fell on the tail of her spine. She immediately felt pain and numbness in her back and legs, and she left work to see a doctor. She was hospitalized for a week, during which she was examined and treated by several doctors. Following her release from hospitalization, she continued under doctors’ care. She returned to work in December 1977 for less than two weeks, but then she terminated her employment, being unable to work due to pain in her back and legs.

During the following years, claimant saw several doctors, underwent at least two surgeries on her lower back, and experienced increasing pain in her back and legs. She was hospitalized for several lengthy periods of time and was usually confined to bed or wheelchair when she was at home. Her doctor rated her 40% impaired in July. 1981, at which time her claim for worker’s compensation benefits had not been settled. The depositions of seven doctors are a part of the record and indicate a considerable disagreement as to the extent and cause of claimant’s inability to work.

Plaintiff testified to having had a troubled childhood and a traumatic first marriage. In 1975, she had been hospitalized for two weeks for an emotional disorder due largely to abuse inflicted upon her by her then husband. Prior to the October 1977 industrial accident, she had had several abdominal surgeries, but she testified that she had worked without pain or other problems prior to the industrial accident in question here.

The decision of the commission, dated February 2, 1984, found that claimant had a permanent partial impairment of 40% in the form of psychogenic pain syndrome, and that “this impairment was caused by the effects of the claimant’s injury as it acted upon her preexisting personality disorder.” However, the commission found “that the claimant did not have, prior to her accident, any permanent physical impairment.” (Emphasis added.) The commission concluded that the claimant Bruce is totally and permanently disabled and that the employer/surety was responsible for the entire liability. Therefore, the Industrial Special Indemnity Fund was dismissed as a defendant.

The instant case is essentially a factual appeal. The employer and its surety assert that the commission erred in finding claimant to be totally and permanently disabled, and in finding that she had no preexisting disability such as would place a portion of the liability for her benefits upon the State of Idaho Industrial Special Indemnity Fund. See I.C. § 72-332 (regarding payment for special injuries from industrial special indemnity account).

We have said that the degree and cause of a claimant’s disability are largely questions of fact, with the added requirement, however, that the commission’s findings in that regard be supported by the record. Carey v. Clearwater County Road Dept., 107 Idaho 109, 686 P.2d 54 (1984); Arnold v. Splendid Bakery, 88 Idaho 455, 401 P.2d 271 (1965); Adams v. Bitco, Inc., 72 Idaho 178, 238 P.2d 428 (1951). The standard of review in such cases requires that the commission’s factual determinations be affirmed, where they are supported by substantial competent evidence. Idaho Const. art. 5, § 9; I.C. § 72-732; Wolf v. Kaufman & Broad Home Systems, 106 Idaho 838, 683 P.2d 874 (1984); Nelson v. Pumnea, 106 Idaho 48, 675 P.2d 27 (1983).

*313The evidence before the commission and in the record here, while conflicting, is adequate to support the findings of the commission as to the total permanent disability and as to the lack of preexisting physical impairment. In relevant part, plaintiff testified:

“Q ... Now, Mrs. Bruce, ... Prior to your injury of October 25, 1977, had you had any previous injury to any part of your body from an accident?
“A Not that I can remember of.
“Q Did you have, prior to your accident of October 25, 1977, did you have any problem with your back in anyway?
“A No.”
“Q Did you have any problem performing any work?
“A No.”

And later, claimant testified:

“Q Did you, in your opinion, recover from that situation that you had with your husband?
“A Yes, I did. I totally recovered when I divorced him.
******
“Q After that, in your opinion, you didn’t have any further problems?
“A No. The psychiatrist told me I didn’t need to come see him anymore, that he thought I was in perfect condition, that I was handling myself quite well.”

Claimant Bruce testified that, following her accident in October 1977, she had constant pain in her back and legs; she repeatedly fell if she tried to walk; she could not work, but had to stay home in bed or in a wheelchair; and the pain thereapy and acupuncture which she underwent were of little help.

Dr. Worst, a psychiatrist and trained physician with surgical experience, testified:

“A It’s my psychiatric opinion, which is a medical opinion, since psychiatry is a specialty of medicine, that this lady does have a permanent psychiatric impairment, that her ability to function is permanently impaired in several different areas which I’ve previously described in this deposition, in terms of her ability to function in the daily tasks of life such as housekeeping, cooking, conversations with her husband, parenting her children, socializing with her neighbors, and more, and these are evidences of a psychiatric disorder which I’ve described and, in my opinion caused by the orthopedic injury which she sustained in October of 1977.
“Also it’s my opinion that this impairment is permanent ... to the extent that she has made no progress ... in these areas, even though therapy has been available to her.
******
“Based on the Guidelines that I’ve reviewed from the American Medical Association, as I compare them with my findings, based on my examination, I believe this woman is, psychiatrically, 40% impaired.
******
“Q All right. Doctor, in your opinion is this lady psychiatrically retrainable into another field or occupation?
“A No.
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“Doctor, in your opinion is Mrs. Bruce, in her present condition, employable in the gainful labor market?
“A In my opinion she is not.

On cross-examination, Dr. Worst responded as follows:

“Q Now, then, doctor, she — this lady then has or had a pre-existing impairment, did she not?
“A No, I’m not saying impairment. Simply because a person has a disorder doesn’t necessarily mean that they have an impairment.
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“Q She had a nervous breakdown, isn’t that an impairment?
“A I’m not willing to accept the fact that she had a nervous breakdown. I was not there. Nervous breakdown is not a psychiatric term, it’s a public term thrown around very loosely and very inappropriately. All I’m willing to accept is the fact the woman was in the hospital ... I didn’t get to see the attending *314physician’s admission notes or anything of that nature ... I would not consider that an impairment.”

Dr. Worst further testified, upon cross-examination:

“Q I want to get it clear, you said the orthopedic injury was the cause of the psychogenic pain syndrome, isn’t that what you said?
“A Yes, that’s what I said.
“Q The injury happened then and caused the syndrome, is that right?
“A That’s correct.”

Dr. Chapman, claimant’s treating physician for a period of approximately three years and the surgeon who operated on her back at least twice, testified that claimant Bruce was impaired to the extent of 40%, and stated:

“Q ... Would you explain how the anatomic loss which you have testified Mrs. Bruce has in her lumbar spine affects her ability to use her body.
* * * * # *
“A The anatomic defect in her lumbar spine would limit her physical activity, certain movements would increase the pain, which approaches the level of incapacity ... This is, of course, aggravated by her emotional response to the ... physical impairment.
“Q All right. Doctor, you said that certain movement would increase her pain. Would you describe in more detail what those movements would be?
“A Any movements — standing, walking, twisting, bending, kneeling — any movement that cause [sic] motion in the lumbar spine.”

Dr. Bronson, a psychologist and specialist in vocational rehabilitation, also indicated that claimant was severely impaired physically and was severely limited in her physical abilities. He reviewed job classifications in which he considered claimant to be potentially eligible given her intelligence, neurological functions, and motor and verbal capabilities. He was unable to find any job potential for claimant which was. both within her physical capabilities and within her geographical area. Dr. Bronson concluded his opinion with his view that claimant was “100 per cent unable to do significant work.”

Notably, the employer and surety did not offer any expert testimony in the field of vocational rehabilitation, as it might have affected claimant Bruce.

• We affirm the holding of the commission, to the effect that claimant Bruce did not have a preexisting permanent physical impairment as that term has been interpreted under I.C. § 72-332. We deem this holding to be correct and consistent with our holding in Hartley v. Miller-Stephan, 107 Idaho 688, 692 P.2d 332 (1984). In Hartley, we held that a personality disorder can amount to a physical impairment, if such disorder manifests itself in some physical symptoms. But we stated, as to Mr. Hartley’s condition:

“[H]ere we are faced with the unambiguous statutory language of I.C. § 72-332, directing that the fund should pay for preexisting physical impairments. We think the personality disorder described here, apparently lacking any bodily symptoms whatsoever, is simply too tenuous to fall within the legislature’s language of I.C. § 72-332.” 107 Idaho at 690, 692 P.2d at 334.

See also Jones v. State, Indus. Special Indem. Fund, 104 Idaho 337, 659 P.2d 91 (1983) (fund not liable for asymptomatic previous injury which was not shown to have been a hindrance to employment); Royce v. Southwest Pipe, 103 Idaho 290, 647 P.2d 746 (1982) (requirement that preexisting condition be manifest in order to fall under I.C. § 72-332).

The decision of the Industrial Commission is affirmed in full. Costs and attorney’s fees to claimant-respondent Bruce, to be paid by defendants-appellants Clear Springs Trout Farm and Aetna Casualty and Surety. Defendant-respondent Industrial Special Indemnity Fund has not requested its costs and fees on appeal, and therefore none are awarded.

*315DONALDSON, C.J., and BAKES, and HUNTLEY, JJ., concur. BISTLINE, J., concurring in part and dissenting in part.