Toelcke v. State, Industrial Special Indemnity Fund

5 P.2d 471, 5 P.3d 471, 134 Idaho 491, 2000 Ida. LEXIS 80
CourtIdaho Supreme Court
DecidedJune 29, 2000
DocketNo. 25107
StatusPublished
Cited by2 cases

This text of 5 P.2d 471 (Toelcke v. State, Industrial Special Indemnity Fund) 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
Toelcke v. State, Industrial Special Indemnity Fund, 5 P.2d 471, 5 P.3d 471, 134 Idaho 491, 2000 Ida. LEXIS 80 (Idaho 2000).

Opinion

WALTERS, Justice.

This is an appeal from an Industrial Commission determination that the Industrial Special Indemnity Fund (ISIF) is not responsible for any portion of Marie Toelcke’s total and permanent disability benefits. We affirm.

BACKGROUND AND PRIOR PROCEEDINGS

On January 9, 1991, Marie Toelcke injured her back while working as a custodian for E G & G Idaho, Inc. Toelcke filed a worker’s compensation claim against her employer on January 9, 1995, which was settled on September 6, 1995. Two years later, Toelcke filed a claim against the ISIF seeking total permanent disability benefits. Following a hearing, the Industrial Commission determined that Toelcke was totally and permanently disabled. Although the Commission found some evidence that Toelcke suffered from degenerative disc disease and degenerative arthritis of the lumbar spine, the Commission concluded that Toelcke had not shown that any portion of her total and permanent disability was due to a pre-existing impairment that was exacerbated by, contributed to, or combined with the injuries caused by her industrial accident. Consequently, the Commission held that the ISIF had no responsibility for Toelcke’s disability benefits.

[493]*493ISSUE ON APPEAL

Did the Industrial Commission err by concluding that Toelcke did not have a preexisting impairment that was a hindrance or obstacle to her employment at the time of the accident?

STANDARD OF REVIEW

On appeal from the Industrial Commission, this Court will not disturb factual findings made by the Commission if supported by substantial and competent evidence. Hamilton v. Ted Beamis Logging and Const., 127 Idaho 221, 899 P.2d 434 (1995). Evidence is “substantial and competent” if a reasonable mind might accept such evidence as adequate to support a conclusion. ASARCO, Inc. v. Industrial Special Indemnity Fund, 127 Idaho 928, 931, 908 P.2d 1235, 1238 (1996). This Court exercises free review over questions of law and will reverse if the findings of fact do not as a matter of law support the award or order. Hamilton, supra; I.C. § 72-732.

DISCUSSION

The Industrial Commission found that Toelcke is totally and permanently disabled under the odd-lot doctrine based upon the combination of her industrial injury and related surgeries, emotional problems, and lack of skills. This finding of total and permanent disability has not been challenged on appeal. Although the Commission found that Toelcke may have had some degenerative disc disease and degenerative arthritis of the lumbar spine prior to her industrial injury, the Commission concluded that Toelcke “has failed to sustain her burden of proving that any portion of her total and permanent disability is due to a pre-existing condition which was exacerbated by, contributed to, or combined with the injuries of January 9,1991.” Consequently, the Commission did not apportion any liability for Toelcke’s total and permanent disability to the ISIF.

Idaho Code § 72-332 governs ISIF liability for total and permanent disability benefits. This Court has articulated four elements that must be satisfied in order to apportion liability to the ISIF: 1) a preexisting physical impairment, 2) the impairment must have been manifest, 3) the impairment must have constituted a subjective hindrance to obtaining employment, 4) the impairment must combine with the industrial injury to render the claimant totally and permanently disabled. Dumaw v. J.L. Norton Logging, 118 Idaho 150, 154, 795 P.2d 312, 316 (1990).

The Industrial Commission found some evidence of pre-existing degenerative disc disease, cervical problems, and/or emotional problems. However, the Commission determined that Toelcke’s pre-existing conditions were asymptomatic at the time of the industrial accident. The Commission concluded that

Claimant’s family physician, Dr. Smith, testified that her prior back problems were always minimal, resolved rapidly, and he had no reason to suspect that she suffered from degenerative disc disease or arthritis of the lumbar spine prior to January 1991. Further, Exhibit A would indicate that in the latter part of September 1982 any restrictions placed on Claimant’s abilities had been removed. Lastly, until she reviewed Exhibit A, Claimant stated she had no difficulty performing her job duties and always received good performance evaluations.
The Referee concludes that Claimant has failed to sustain her burden of proving that any portion of her total and permanent disability is due to a pre-existing physical condition which was exacerbated by, contributed to, or combined with the injuries of January 9,1991.

Toelcke did not submit any medical evidence regarding her medical condition prior to the industrial accident. She argues that medical testimony is unnecessary under Archer v. Bonners Ferry Datsun, 117 Idaho 166, 786 P.2d 557 (1990). Toelcke relies solely upon Exhibit A, which she introduced during the hearing. Exhibit A purports to show that she frequently visited the doctor for a variety of problems prior to the industrial accident. However, Exhibit A was not admitted as medical evidence. It was admitted solely for the purpose of reflecting [494]*494Toeleke’s recollection of physical problems she had from the time she began employment until her termination. Toelcke argues that because of her prior medical history, as reflected in Exhibit A, she suffered a loss of potential earning capacity because employers may have been reluctant to hire her. Toelcke appears to be arguing that the Commission should have found a pre-existing physical impairment triggering ISIF liability in this case even if her back injuries were asymptomatic because an employer who was given her medical records might have reservations about hiring her. She has not cited any authority, however, stating that the mere existence of medical records showing frequent visits to a doctor by itself constitutes a physical impairment.

Toelcke also relies upon the following statements from Royce v. Southwest Pipe of Idaho, 103 Idaho 290, 294, 647 P.2d 746, 750 (1982):

Therefore, we hold that a preexisting physical impairment within the meaning of I.C. § 72-332(2) is any condition which reasonably could constitute a hindrance or obstacle to employment or reemployment when all known facts are or could reasonably be disclosed to the employer____ Actual hindrance to one’s attempts at obtaining employment is not required.

Any direct reliance upon Royce is misplaced. Royce was decided under the objective test articulated in Gugelman v. Pressure Treated Timber Co., 102 Idaho 356, 630 P.2d 148 (1981), and Curtis v. Shoshone County Sheriffs Office,

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Bluebook (online)
5 P.2d 471, 5 P.3d 471, 134 Idaho 491, 2000 Ida. LEXIS 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toelcke-v-state-industrial-special-indemnity-fund-idaho-2000.