Colpaert v. Larson's, Inc.

771 P.2d 46, 115 Idaho 825, 1989 Ida. LEXIS 35, 1989 WL 22981
CourtIdaho Supreme Court
DecidedMarch 15, 1989
DocketNos. 16986, 17045
StatusPublished
Cited by1 cases

This text of 771 P.2d 46 (Colpaert v. Larson's, Inc.) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colpaert v. Larson's, Inc., 771 P.2d 46, 115 Idaho 825, 1989 Ida. LEXIS 35, 1989 WL 22981 (Idaho 1989).

Opinions

HUNTLEY, Justice.

Ann Marie Colpaert was born in 1932. She has a ninth grade education. She began working for Larson’s, Inc., in Sand-point in 1979. In 1980 she was promoted to department manager.

On December 10, 1982, claimant tripped and fell at work striking her upper right shoulder when she hit the floor. She suffered a fracture which required surgery. She was released to return to work on March 7, 1983, and did return to work in her supervisory position. Colpaert was discharged from Larson’s on April 13, 1983, for reasons unrelated to her injury.

Prior to the accident on December 10, 1982, she was afflicted with a condition known as an ataxia, which attacks the nerves and muscles throughout the body. Both Colpaert and her employer were aware of her condition at the time she was hired. She informed Larson’s that she would be unable to walk upstairs or stand on her feet for long periods of time. Larson’s hired her with the idea that she could be assisted in various activities by other employees.

Colpaert was rated for permanent physical impairment by Dr. O’Keefe, her treating orthopedic surgeon on June 13, 1983, and was given a permanent physical im[827]*827pairment rating of 15% as compared to the loss of an arm at the shoulder. A compensation agreement was entered into between the parties and approved by the Industrial Commission on July 7, 1983.

Colpaert obtained employment with another employer in July 1983, and continued part-time until February, 1984. By February, 1984, the ataxic condition was progressing. She was treated by James Lea, a neurologist for the condition and has not worked since February, 1984.

After reviewing the medical testimony and the depositions of Colpaert and her employer, Mr. Larson, The Industrial Commission found that Colpaert suffered a total permanent disability. The Commission also found that Colpaert had undergone a change of condition from a 15% impairment rating to a 30% impairment rating. The Commission found that Colpaert was entitled to total temporary disability benefits during the period of December 1982 to March 6,1983, while she was not employed, in addition to partial temporary disability benefits during the time she worked for an employer subsequent to Larson’s, Inc. The Commission assessed against Larson’s, Inc. and its surety a partial disability equivalent to 37.5% of the whole man and assessed against the Industrial Special Indemnity Fund (ISIF) the balance of the total permanent disability.

This appeal, a consolidation of appeals brought separately by Larson’s and by ISIF, requires us to address the following seven issues:

1. Whether the Industrial Commission erred in finding claimant to be totally and permanently disabled without considering her date of medical stability and by relying on inadmissible hearsay.

2. Whether the Industrial Commission erred in finding that the claimant suffered from a permanent physical impairment which was “manifest” prior to her accident of December 12, 1982.

3. Whether the Industrial Commission erred in holding that the claimant is totally and permanently disabled by reason of the combined effects of both a preexisting impairment and an industrial injury as provided under I.C. § 72-332.

4. Whether the Industrial Commission erred in apportioning disability to ISIF.

5. Whether the Industrial Commission erred in finding that claimant’s ataxia constituted a hinderance or obstacle to employment.

6. Whether the Industrial Commission erred in finding that claimant’s physical condition had changed resulting in an increase in her permanent physical impairment rating from 15% as compared to the loss of an arm at the shoulder to 30%.

7. Whether the Industrial Commission erred in finding that claimant was entitled to temporary partial disability benefits during the period of July 1983 to February 1984 while the claimant was employed by an employer subsequent to Larson’s.

The scope of our review in worker’s compensation cases is established both by the Idaho Constitution, art. 5, § 9 and by statute. I.C. §§ 72-724, 72-732. This Court only has the authority to reverse a decision of the Commission when its decisions are not supported by substantial competent evidence, I.C. § 72-732(1), or are not supportable as a matter of law, Idaho Const., art. 5 § 9. Sykes v. C.P. Clare & Co., 100 Idaho 761, 605 P.2d 939 (1980).

On each of the seven issues discussed below ISIF and/or Larson’s Surety challenge the findings of the Commission based on a supposed lack of substantial and competent evidence to support them. Our review of the record, including the depositions of the medical experts, the claimant and her employer, Mr. Larson, demonstrates that there is ample substantial and competent evidence sufficient to support the Commission’s findings in six of the seven issues raised.

I.

ISIF contends that the Commission erred by relying on alleged hearsay in establishing the existence of Colpaert’s permanent and total disability. The Commission relied on a report by Dr. James Lea, a neurologist in Coeur d’Alene, to whom Mrs. [828]*828Colpaert was referred by her family doctor in Sandpoint. In his report Dr. Lea wrote “in addition she clearly would have tremendous difficulty in holding down any type of employment and I have suggested to her that she apply to the Social Security Administration for disability.” Claimant’s Exhibit No. 5, p. 2. The date of Dr. Lea’s report was February 17, 1984.

ISIF asserts that the report is hearsay and inadmissible. However, the record contains a stipulation entered into by the attorneys for Colpaert, the employer and surety, and ISIF that agreed that this report should be admitted into evidence. Thus, through this stipulation, ISIF has waived any hearsay objection.

ISIF also contends that the Commission was compelled by the evidence to find that claimant’s impairment as a result of her shoulder injury was medically stable when she was first examined and rated by Dr. O’Keefe, her treating orthopedic surgeon on May 19 and June 13, 1983. ISIF contends that Colpaert’s disability must have been determined as of that date due to the alleged stability in Colpaert’s shoulder impairment. This contention ignores evidence in the record relied upon by the Commission which established that her condition had not stabilized and in fact had worsened approximately one year later from the time Dr. O’Keefe first offered a 15% impairment rating.

In his deposition Dr. O’Keefe stated the following:

She had returned on March 1, 1984, her concucion had undoubtedly worsened as the range of motion was more restricted than it had been on May 19, 1983.
The fact that I didn’t put down any numbers on March 1, 1984, led me to believe that when I saw her on March 1 of 1984, range of motion was almost completely restricted. That she had, basically, a stiff shoulder.

Also in evidence was a later impairment rating offered by the surety’s doctor, Dr. Burton, resulting from an examination performed on January 2,1985, which rated her impairment of the shoulder from her injury to the degree of 30% as compared to a loss of the arm at the shoulder.

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Related

Smith v. J.B. Parson Co.
908 P.2d 1244 (Idaho Supreme Court, 1996)

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Bluebook (online)
771 P.2d 46, 115 Idaho 825, 1989 Ida. LEXIS 35, 1989 WL 22981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colpaert-v-larsons-inc-idaho-1989.