DONALDSON, Chief Justice.
This appeal involves a claim for benefits under Idaho’s Workmen’s Compensation Laws. At issue is the entitlement of claimant-appellant, Donald D. Sykes (Sykes), to total temporary disability payments for a period of approximately one year and eight months from Liberty Mutual Insurance Co. (Liberty Mutual). A referee of the Industrial Commission heard this case in March of 1977 and issued his findings of fact and conclusions of law to the effect that Sykes was not entitled to benefits for the period extending beyond November 6, 1973. The Industrial Commission affirmed the referee’s findings and conclusions in April, 1977. Sykes then brought this appeal. We affirm.
On July 26, 1972, Donald Sykes, while working at the C. P. Clare and Company, caught the heel of his shoe on a nail protruding from a step, fell down a flight of stairs and sustained a back injury. He was [762]*762taken by ambulance to a hospital in Coeur d’Alene. After X-rays, an attending physician told Sykes that he had a torn, strained muscle and ligament, prescribed a muscle relaxant and told him to stay off his feet for a couple of weeks. Within two weeks of the accident, Sykes consulted a chiropractor in Coeur d’Alene for heat and massage treatments to his back, which treatments continued for the next several months.
Despite these treatments the pain in Sykes’ back grew worse. Sykes’ chiropractor therefore referred him to an orthopedic specialist, Dr. Bagby. Dr. Bagby conducted numerous tests and examinations of Sykes, and consulted with a Dr. Vincent, a neurosurgeon, about Sykes’ problem. In April, 1973 Dr. Vincent took over treatment of Sykes. At that time Dr. Vincent indicated in a letter to Sykes, dated April 27, 1973, that there was definite evidence that Sykes had a ruptured disc in his back. However, Dr. Vincent preferred physical therapy in the form of heat and massage rather than surgery at that time in the hope that there would be some improvement within a few weeks.
In the meantime, financial difficulty caused Sykes and his family, to move to Mesa, Arizona where they resided for approximately five months with his parents. Once in Arizona, Sykes made arrangements with a chiropractor to receive heat and massage treatments as Dr. Vincent had recommended. At the conclusion of the treatments, Sykes received no further medical attention in Arizona. The reasons for this are in dispute. It is undisputed, however, that from the date of the accident until September, 1973, Liberty Mutual had paid Sykes both total temporary disability payments and some medical payments for his work-related injury.
Sykes testified that during the time he was receiving therapy in Arizona, his chiropractor notified him that the surety, Liberty Mutual, refused to pay the bill for therapy. Sykes then contacted Liberty Mutual’s Phoenix office which informed him that they would not pay for chiropractic treatment but that they would pay for an operation. As a result Sykes discontinued his therapy, having no funds with which to obtain further medical care. He returned to Idaho in late August of 1973. He continued receiving compensation from Liberty Mutual for his injury until September 27, 1973, at which time for reasons which are unclear from the record, Liberty Mutual terminated his compensation without notice. Liberty Mutual admits Sykes’ disability to that date and does not dispute his eligibility for those benefits.
Sykes testified that at this point he contacted Liberty Mutual in Salt Lake City. Liberty Mutual informed him that because he had stopped seeing a doctor, Liberty Mutual had terminated his payments. Sykes then explained the events as they transpired in Arizona. He told Liberty Mutual that he had stopped seeing a doctor both because of the surety’s refusal to pay for his physical therapy and his inability to pay any medical bills. When he told Liberty Mutual that he was attempting to get an appointment with Dr. Vincent in Idaho, Liberty Mutual assured him that they would start sending his checks again. Liberty Mutual never resumed compensation.
Apparently in connection with these phone conversations, Dr. Vincent, on October 16, 1973, wrote to Liberty Mutual. In that letter Dr. Vincent stated that he would not suggest any further treatment for Sykes. It was his feeling that Sykes’ failure to return to his office since April of 1973 substantiated his opinion that the injury was not severe enough to call for further treatment. Sykes did not receive a copy of Dr. Vincent’s letter of October 16, sent to Liberty Mutual.
Sykes did see Dr. Vincent on November 6, 1973. Sykes testified that he informed Dr. Vincent at that time that his condition was getting worse, and he requested surgery. Dr. Vincent declined to operate out of concern that the operation would worsen the condition of the back. Dr. Vincent suggested that Sykes lose some weight. Otherwise, ,as indicated in his letter to Liberty Mutual after his re-examination of Sykes, Dr. Vin[763]*763cent discharged Sykes from his care; although, he noted that Sykes might want to see the orthopedic specialist, Dr. Bagby. Sykes also did not receive a copy of the November 6 letter which indicated that he had been discharged from Dr. Vincent’s care.
After November 1973 until March 1975, Sykes did not attempt to obtain further medical treatment. In March 1975, at the request of the Social Security Administration, Dr. William Slaughter examined Sykes. As a result of that examination the Social Security Administration concluded that Sykes’ condition had stabilized. In July of 1975, the Social Security Administration terminated Sykes’ social security disability payments. At this point Sykes reopened his claim for workmen’s compensation from Liberty Mutual.
By agreement of the parties, Dr. Vincent again examined Sykes on September 22, 1975. On that same day Dr. Vincent wrote a letter to counsel for Liberty Mutual. That letter indicated that Sykes was still obese and unable to return to any gainful occupation; that there was still evidence of a disc rupture, but that Sykes’ condition was quite improved since the last time Dr. Vincent had seen him in November 1973; and that the claimant has a permanent partial disability of 10% of the whole man as a result of the July 1972 accident.
Sykes then filed an application for a hearing before the Idaho Industrial Commission contending that he was entitled to compensation from the time that Liberty Mutual terminated his payments on September 27, 1973 until at least July 1, 1975, by reason of his total disability during that period of time.
The hearings referee found that Sykes’ total temporary disability did not extend beyond November 6, 1973. He noted that while Dr. Vincent’s report of September 1975 indicated that there was some improvement in the claimant’s condition in the interim, there was no medical opinion that Sykes was totally disabled after November 6, 1973. The fact that Dr. Vincent discharged the claimant from his care on November 6 indicated to the referee that Dr. Vincent did not consider Sykes to be totally disabled. In addition the claimant did not obtain medical treatment in the interim period until he began consulting Dr. Vincent in September 1975. The referee concluded as a matter of law that it was the claimant’s burden to present expert medical evidence of the extent and duration of disability in order to recover income benefits for disability. This, the referee concluded, Sykes failed to do. He therefore denied Sykes benefits for the period subsequent to November 6, 1973.
Free access — add to your briefcase to read the full text and ask questions with AI
DONALDSON, Chief Justice.
This appeal involves a claim for benefits under Idaho’s Workmen’s Compensation Laws. At issue is the entitlement of claimant-appellant, Donald D. Sykes (Sykes), to total temporary disability payments for a period of approximately one year and eight months from Liberty Mutual Insurance Co. (Liberty Mutual). A referee of the Industrial Commission heard this case in March of 1977 and issued his findings of fact and conclusions of law to the effect that Sykes was not entitled to benefits for the period extending beyond November 6, 1973. The Industrial Commission affirmed the referee’s findings and conclusions in April, 1977. Sykes then brought this appeal. We affirm.
On July 26, 1972, Donald Sykes, while working at the C. P. Clare and Company, caught the heel of his shoe on a nail protruding from a step, fell down a flight of stairs and sustained a back injury. He was [762]*762taken by ambulance to a hospital in Coeur d’Alene. After X-rays, an attending physician told Sykes that he had a torn, strained muscle and ligament, prescribed a muscle relaxant and told him to stay off his feet for a couple of weeks. Within two weeks of the accident, Sykes consulted a chiropractor in Coeur d’Alene for heat and massage treatments to his back, which treatments continued for the next several months.
Despite these treatments the pain in Sykes’ back grew worse. Sykes’ chiropractor therefore referred him to an orthopedic specialist, Dr. Bagby. Dr. Bagby conducted numerous tests and examinations of Sykes, and consulted with a Dr. Vincent, a neurosurgeon, about Sykes’ problem. In April, 1973 Dr. Vincent took over treatment of Sykes. At that time Dr. Vincent indicated in a letter to Sykes, dated April 27, 1973, that there was definite evidence that Sykes had a ruptured disc in his back. However, Dr. Vincent preferred physical therapy in the form of heat and massage rather than surgery at that time in the hope that there would be some improvement within a few weeks.
In the meantime, financial difficulty caused Sykes and his family, to move to Mesa, Arizona where they resided for approximately five months with his parents. Once in Arizona, Sykes made arrangements with a chiropractor to receive heat and massage treatments as Dr. Vincent had recommended. At the conclusion of the treatments, Sykes received no further medical attention in Arizona. The reasons for this are in dispute. It is undisputed, however, that from the date of the accident until September, 1973, Liberty Mutual had paid Sykes both total temporary disability payments and some medical payments for his work-related injury.
Sykes testified that during the time he was receiving therapy in Arizona, his chiropractor notified him that the surety, Liberty Mutual, refused to pay the bill for therapy. Sykes then contacted Liberty Mutual’s Phoenix office which informed him that they would not pay for chiropractic treatment but that they would pay for an operation. As a result Sykes discontinued his therapy, having no funds with which to obtain further medical care. He returned to Idaho in late August of 1973. He continued receiving compensation from Liberty Mutual for his injury until September 27, 1973, at which time for reasons which are unclear from the record, Liberty Mutual terminated his compensation without notice. Liberty Mutual admits Sykes’ disability to that date and does not dispute his eligibility for those benefits.
Sykes testified that at this point he contacted Liberty Mutual in Salt Lake City. Liberty Mutual informed him that because he had stopped seeing a doctor, Liberty Mutual had terminated his payments. Sykes then explained the events as they transpired in Arizona. He told Liberty Mutual that he had stopped seeing a doctor both because of the surety’s refusal to pay for his physical therapy and his inability to pay any medical bills. When he told Liberty Mutual that he was attempting to get an appointment with Dr. Vincent in Idaho, Liberty Mutual assured him that they would start sending his checks again. Liberty Mutual never resumed compensation.
Apparently in connection with these phone conversations, Dr. Vincent, on October 16, 1973, wrote to Liberty Mutual. In that letter Dr. Vincent stated that he would not suggest any further treatment for Sykes. It was his feeling that Sykes’ failure to return to his office since April of 1973 substantiated his opinion that the injury was not severe enough to call for further treatment. Sykes did not receive a copy of Dr. Vincent’s letter of October 16, sent to Liberty Mutual.
Sykes did see Dr. Vincent on November 6, 1973. Sykes testified that he informed Dr. Vincent at that time that his condition was getting worse, and he requested surgery. Dr. Vincent declined to operate out of concern that the operation would worsen the condition of the back. Dr. Vincent suggested that Sykes lose some weight. Otherwise, ,as indicated in his letter to Liberty Mutual after his re-examination of Sykes, Dr. Vin[763]*763cent discharged Sykes from his care; although, he noted that Sykes might want to see the orthopedic specialist, Dr. Bagby. Sykes also did not receive a copy of the November 6 letter which indicated that he had been discharged from Dr. Vincent’s care.
After November 1973 until March 1975, Sykes did not attempt to obtain further medical treatment. In March 1975, at the request of the Social Security Administration, Dr. William Slaughter examined Sykes. As a result of that examination the Social Security Administration concluded that Sykes’ condition had stabilized. In July of 1975, the Social Security Administration terminated Sykes’ social security disability payments. At this point Sykes reopened his claim for workmen’s compensation from Liberty Mutual.
By agreement of the parties, Dr. Vincent again examined Sykes on September 22, 1975. On that same day Dr. Vincent wrote a letter to counsel for Liberty Mutual. That letter indicated that Sykes was still obese and unable to return to any gainful occupation; that there was still evidence of a disc rupture, but that Sykes’ condition was quite improved since the last time Dr. Vincent had seen him in November 1973; and that the claimant has a permanent partial disability of 10% of the whole man as a result of the July 1972 accident.
Sykes then filed an application for a hearing before the Idaho Industrial Commission contending that he was entitled to compensation from the time that Liberty Mutual terminated his payments on September 27, 1973 until at least July 1, 1975, by reason of his total disability during that period of time.
The hearings referee found that Sykes’ total temporary disability did not extend beyond November 6, 1973. He noted that while Dr. Vincent’s report of September 1975 indicated that there was some improvement in the claimant’s condition in the interim, there was no medical opinion that Sykes was totally disabled after November 6, 1973. The fact that Dr. Vincent discharged the claimant from his care on November 6 indicated to the referee that Dr. Vincent did not consider Sykes to be totally disabled. In addition the claimant did not obtain medical treatment in the interim period until he began consulting Dr. Vincent in September 1975. The referee concluded as a matter of law that it was the claimant’s burden to present expert medical evidence of the extent and duration of disability in order to recover income benefits for disability. This, the referee concluded, Sykes failed to do. He therefore denied Sykes benefits for the period subsequent to November 6, 1973.
We limit the scope of our review in this type of case to questions of law and determinations of whether the findings of fact in the record are supported by substantial, competent evidence. I.C. § 72-724(2); I.C. § 72-732(1); Paulson v. Idaho Forest Industries, Inc., 99 Idaho 896, 591 P.2d 143 (1979); Madron v. Green Giant Co., 94 Idaho 747, 497 P.2d 1048 (1972).
In workmen’s compensation cases, the burden is on the claimant to present expert medical opinion evidence of the extent and duration of the disability in order to recover income benefits for such disability-
At his hearing before the Idaho Industrial Commission, Sykes failed to present any physicians to testify on his behalf as to the extent and duration of his total temporary disability. There were admitted into evidence, as exhibits for the commission, a physician’s report by Dr. Geisen, employer’s designated physician, a copy of Dr. Vincent’s letter of April 27,1973 to Sykes while Sykes was in Arizona, and a letter from Dr. Vincent to Liberty Mutual’s claims adjuster. Sykes testified as to statements made to him by his doctors indicating his physical impairment, but did not support his testimony with doctor’s reports, depositions or a physician’s oral testimony. His testimony does not constitute medical testimony which is necessary to support his claim for compensation. As a result, he failed to satisfy the burden required in order to establish his eligibility for total temporary disability [764]*764benefits. Wilson v. Carl Gilb, Inc., 94 Idaho 106, 482 P.2d 81 (1971).
This Court has held on numerous occasions that, in workmen’s compensation cases there must be medical testimony supporting the claim for compensation with a reasonable degree of medical probability. Bowman v. Twin Falls Const. Co., Inc., 99 Idaho 312, 581 P.2d 770 (1978); Fisher v. Bunker Hill Co., 96 Idaho 341, 528 P.2d 903 (1974). Workmen’s compensation cases, because of their medical aspects, depend upon knowledge neither expected nor possessed by lay witnesses, and the basis for any award must rest upon and be supported by medical testimony. Comish v. J. R. Simplot Fertilizer Co., 86 Idaho 79, 383 P.2d 333 (1963).
Not only must the award be based upon medical testimony but it is a well-established principle of law that in workmen’s compensation cases, the claimant has the burden of proving a compensable disablement in order to recover. Wilson v. Carl Gilb, Inc., supra; Kern v. Shark, 94 Idaho 69, 480 P.2d 915 (1971); Davenport v. Big Tom Breeder Farms, Inc., 85 Idaho 604, 382 P.2d 762 (1963). The record here indicates that Sykes called no other witnesses to testify besides himself and no medical opinion testimony was introduced which established his disability and subsequent eligibility to receive total temporary disability payments after November 6, 1973.
Furthermore, where the employer or its surety has paid total temporary disability payments and then terminates such payments, as in this case, this Court has held that payments of such compensation prior to termination do not constitute an admission that the employee’s subsequent condition was due to a compensable cause which required the employer or surety to prove cessation of the compensable disability. Carlson v. F. H. DeAtley & Co., 55 Idaho 713, 46 P.2d 1089 (1935). The burden of proof thus remains on the claimant, even where the employer or its surety originally paid disability compensation to the employee.
Idaho Code § 72-102(8) defines “disability” for purposes of determining total or partial temporary disability income benefits as “a decrease in wage-earning capacity due to injury or occupational disease, as such capacity is affected by the medical factor of physical impairment, and by nonmedical factors such as age, sex, education, economic and social environment.” Sykes did not present evidence to establish the medical factor of impairment or the nonmedical factors which proved that he suffered a disability. We therefore affirm the referee’s conclusion that Sykes bore the burden of presenting expert medical evidence to establish his eligibility for total temporary disability benefits and that he failed in so doing.
While we find on the basis of the record that there was substantial and competent evidence to support the referee’s finding that Sykes’ total disability did not extend beyond November 6, 1973, we cannot agree with the referee’s mixed finding of fact and conclusion of law that where the claimant is not under the care of a physician, he cannot be considered to be totally disabled.
If we were to accept the referee’s finding, it would then be possible for an individual suffering from an impairment for which no marked change or improvement could be expected, and who ceased seeing a doctor because there was no hope of improvement, to be considered not disabled merely because such person discontinued seeing a physician who could do little to improve his patient’s condition. Indeed, it is possible that a claimant could present medical testimony at his hearing which would establish his disability, yet said claimant would be denied disability benefits because he was not under the care of a physician at the time such evidence was presented. Whether an individual is disabled is not determined by whether that person is under the care of a physician but by whether that person has suffered a decrease in wage-earning capacity. I.C. § 72-102(8). It was error for the referee to conclude that because Sykes was no longer under the care of a physician he was no longer disabled.
[765]*765Ordinarily we would remand this case to the referee with instructions to redetermine whether Sykes was disabled without the erroneous conclusion that because Sykes was no longer under the care of a physician, he couldn’t be considered disabled. However, it is clear from the record in this case that the referee independently concluded that Sykes failed to establish the extent and duration of his disability through medical opinion evidence and this would mandate the same result. On the basis of this independent conclusion, we affirm the referee’s determination that Sykes could not be considered disabled and thus not entitled to total temporary disability benefits for the period in dispute.
Affirmed.
SHEPARD, BAKES and McFADDEN, JJ., concur.