J. JONES, Justice.
Katherine Harris sought workers' compensation benefits after falling and injuring herself at work in January of 2008. Following a hearing, the Idaho Industrial Commission decided that Harris was not entitled to disability or medical benefits after February 19, 2008. Harris appealed to this Court. We affirm.
Harris was a school bus driver for the Independent School District No. 1 (Employer) for approximately 18 years. The accident giving rise to this claim occurred on January 9, 2008. That afternoon, Harris "was just exiting [her] bus" when she fell from the steps. A coworker found her, an ambulance was called, and she was taken to St. Joseph Regional Medical Center in Lewiston (St. Joseph). At the emergency room, she complained of neck, back, shoulder, and knee pain. Furthermore, Harris stated that prior to her fall, "her back [had] been sore for the past couple of days." Following Harris' examination at the emergency room, the treating physician noted that "there [was] a little bit of upper thoracic tenderness" and "pain laterally bilaterally in the upper and lower extremities." The doctor's impression was that she suffered "a minor neck strain," and a "knee contusion." An X-ray showed "some straightening of the lordotic curvature" and some "moderate degenerative changes" to her spine. Harris was prescribed thirty hydrocodone pills for pain, ordered to take time off of work, and discharged.
After receiving medical treatment, including pain medication, for nine months following her accident, Harris filed a complaint on October 15, 2008, seeking the full range of workers' compensation benefits. A hearing was conducted before an Industrial Commission Referee on December 3, 2010. Following the submission of post-hearing depositions, the Referee issued his Findings of Fact, Conclusions of Law, and Recommendation on March 7, 2012, and the Commission approved, confirmed, and adopted the same by its Order filed on April 6, 2012. According to the record developed during the proceedings, Harris' medical records from before the accident included a history of incidents involving back and neck pain and usage of prescription pain medication.
Harris was diagnosed with a "[l]ow back strain" in October of 1991 by a doctor who wrote:
In November of 1994, Harris visited St. Joseph with a complaint of lower back pain, and she was diagnosed with "mechanical lower back pain." During that examination she recounted that the pain, which was the result of a 1984 motor vehicle accident, "precluded [her from] standing for a prolonged period of time." And in 1998, Harris fell and suffered a left shoulder injury, for which she was prescribed hydrocodone.
Harris' job required her to complete a Medical Examination Report for Commercial Driver Fitness Determination. In the "health history" section of her 2003 report, Harris checked a "Yes" box for the category "Chronic low back pain." The medical examiner noted on the same form that she had "lowback pain/shoulder pain." And, in September of the following year, Harris went to Express Care in Lewiston, "complaining of low back pain." She was diagnosed with a lumbosacral strain and given two days off of work.
On October 17, 2007, Stolte saw Harris, who at the time "complain[ed] of back pain, joint pain, stiffness, arthritis." Harris was taking Darvocet for pain at this time. Stolte also prescribed Norco, a hydrocodone-based painkiller. Harris saw Stolte again on November 19 for shoulder and stomach pain, by which time Stolte had discontinued both the Darvocet and the Norco. The following month, Harris visited St. Joseph for what was diagnosed as a "dental infection," for which she was prescribed more Norco.
Harris saw Stolte on January 14, 2008, five days after the accident, complaining of neck and lower back pain. She was diagnosed with "[c]ervical and lumbar strain" and was prescribed hydrocodone, muscle relaxers, and physical therapy. An X-ray taken at this time showed "no obvious fracture" and that her back was normal, except for some "disc degeneration." She was told that she was off work until the following week. Harris continued to have back pain, which led to follow-up visits with Stolte, an addition of Percocet to the already-prescribed hydrocodone regimen, and physical therapy. Stolte noted at this time that Harris "still complain[ed] of increased pain after [physical therapy] and is now refusing to do some of the exercises." She was given "no specific return to work date." About a month later, in early February, cervical and lumbar MRIs were ordered, which showed disc degeneration with arthritis, bone spurs, stenosis, narrowed disc spaces, and disc bulges. But, as the Referee put it, "[o]ther disc spaces were reported to be normal," and "[n]o acute or traumatic findings were reported."
The Idaho State Insurance Fund (Surety) requested that orthopedic surgeon Warren Adams, M.D., evaluate Harris' condition. He did so on February 19, 2008. After examining Harris for approximately an hour and a half, Dr. Adams noted that his examination "did not identify any objective findings to corroborate her subjective complaints," that she required no additional treatments, and that there were "no objective findings related to the [accident] that would preclude her from returning to her pre-injury position as a Bus Driver." When asked if Harris had permanent partial impairment due to the accident, Dr. Adams answered, "No." Dr. Adams' report ended with this comment:
His physical examination notes reflected the same:
Harris continued to see Stolte in February and March of 2008. On one of these occasions, Stolte noted that: "Kathy states her back is not better. There is really no change. Her family has been bugging her so much about taking pain medication that she threw all of her percocet away and would like to go back to hydrocodone." Hydrocodone was accordingly prescribed. On April 3, Harris contacted Stolte's office. The call
On April 14, 2008, Nurse Practitioner Stolte contested Dr. Adams' examination of Harris. She opined that Harris had "never had any back pain compared to what she is now having and has never complained of neck pain or numbness and tingling." She continued, "These problems all began after her fall on 1/9/2008." Adams responded in turn and maintained that "[a] detailed physical examination did not identify any objective findings of (sic) to corroborate [Harris'] subjective complaints. Her physical examination did identify non-physiologic findings as well as inconsistent findings."
On May 2, 2008, Gregory Dietrich, M.D., reviewed Harris' lumbar MRI, per Stolte's request, to determine whether Harris was a candidate for surgery. He concluded that "[s]he certainly does have significant disc disease," which "would potentially explain her pain," but that he "[did] not think there is much to consider surgically here." Approximately one month later, Harris visited St. Joseph complaining of increased pain. The physician's assistant who treated her diagnosed her with lower back pain — "[p]robably acute exacerbation of her chronic condition." He further noted: "I have advised the patient that I think she needs some more movement specifically walking. She argues this point quite a bit. She think[s] she should be doing nothing to get better."
Harris visited John Demakas, M.D., on June 19 to obtain a second opinion regarding her need for surgery. His impression was that Harris "appear[ed] to have certainly pre-existing degenerative changes in the neck and low back, but it was made symptomatic by the [accident]." He recommended against surgical intervention, instead ordering a bone scan. After reviewing the scan, he reconfirmed that she would not benefit from surgery at that time, referring her, instead, to a pain clinic.
Later that month, at the Tri-State Memorial Hospital (Tri-State) in Clarkston, Washington, Harris received two epidural steroid injections for low back and neck pain, which seemed to provide "excellent results" initially, but which did not resolve Harris' neck pain completely. Less than a month later, Harris returned to the St. Joseph emergency room, chiefly complaining of lower back pain and being "out of pain meds." The treating physician noted her back pain, and observed:
She was prescribed thirty tablets of Dilaudid and given an intramuscular injection of the same.
Later in July, Harris received another round of epidural injections at Tri-State, this time in her neck. Her physician noted:
Following the cervical injection, Harris returned for a follow-up exam, stating that the initial effectiveness of the epidural had worn off and that she had left shoulder pain and a severe headache. Concerning her headache, the doctor opined:
On October 9, 2008, Dr. Demakas again examined Harris to reevaluate whether she was a proper candidate for surgery. Demakas was informed that the epidural injections only gave Harris "about 30% relief" for her lumbar symptoms. He concluded that "given her lack of response to conservative treatment, we are probably looking at some type of a cervical surgery."
On December 24, 2008, Harris and Stolte executed a "Patient Contract Regarding Chronic Narcotic Use for Non-Malignant Pain." It states:
Within one month, Harris returned to the St. Joseph emergency room complaining of pain and requesting narcotics. Harris averred that she ran out of medication early, which had occurred in the past, and expressed that "[s]he [was] quite concerned about withdrawal symptoms." The physician's assistant and Harris then had a "very frank discussion" regarding "how much she was overutilizing her medication" and how prescribing additional narcotics would void the contract she just signed. Harris "indicated that her husband tends to set aside the medications so she will not over use them." Harris was then given medication "to try to stave off some of her withdrawal." This was a breach of the narcotic-use agreement between Stolte and Harris, which Stolte discussed in a subsequent examination:
Harris continued to see Stolte for neck and back pain in 2009. She also continued to use narcotics for pain, which prompted her husband to speak with Dr. Demakas' staff in March. Harris' husband stated his concern "about how much pain medication [she was] taking. He said she took 70 Dilaudid in 3 days." And, on April 11 of that year, Harris presented at the Bogachiel Clinic in Forks, Washington, requesting pain medication. Harris stated that she was in town for her father's funeral and that half of her Demerol had been lost or stolen from her luggage, which she did not report to police. The Clinic checked local pharmacies and discovered that Harris had received ninety Soma pills two days prior while in Washington. Nevertheless, she was prescribed forty hydrocodone pills by the treating nurse practitioner who expressed concern about prescribing Demerol. Five days later Harris returned to Express Care in Lewiston, where she again stated that her medication had been stolen and requested "Hydrocodone instead [of Demerol] as she [was] having `withdrawls.'" (sic). Hydrocodone was denied and her
After a "very long discussion" with Harris and her husband, Dr. Lott prescribed fourteen Demerol tablets and "[a]dvised [Harris] specifically, clearly and repeatedly that I would not give her any further narcotics, no exceptions."
Harris again met with Dr. Demakas on May 14, and his impression was that she suffered from "[c]ontinued degenerative disc disease ... with neck and arm pain." He performed neck surgery on June 10, 2009. Thereafter, her symptoms appeared to initially resolve, but then return. In August of 2010
At the request of the Surety, Harris was examined by Jeffrey Larson, M.D. on August 17, 2010. He noted that Harris complained of severe neck pain, lower back pain, numbness and pain in her extremities, incontinence, and headaches. The headaches and numbness, she alleged, were new symptoms that resulted from the neck surgery. Dr. Larson further noted that Dr. Demakas was recommending a second surgery, this time on Harris' lower back, "but that the surgery is being denied by Worker's Comp. and that she no longer has her own health insurance." Dr. Larson diagnosed Harris with a minor neck strain, minor lumbar strain, degenerative disc disease, and chronic lower back pain. He opined that the neck and lumbar strains were "casually (sic) related" to the accident at issue, and that she had "reached maximum medical improvement" for the symptoms stemming from the accident. Dr. Larson further opined that the neck surgery "relate[d] to chronic degenerative disc disease and not to the industrial injury of January 9, 2008. Ms. Harris has a multitude of subjective complaints that ... are not likely to improve with surgery." He concluded that Harris was "medically stable of the industrial accident of January 9, 2008," and that "[t]here is no permanent partial impairment rating for either neck strain or lower back strain."
On the other hand, Dr. Robert Colburn performed an independent medical evaluation that was at odds with Dr. Larson's findings. After reviewing Harris' medical history and examining her, he made the following diagnosis:
In other words, he thought that the degenerative disc disease existed before the accident, but that the "subsequent pain and radicular symptoms were a result of that injury aggravating" it. Dr. Colburn also thought that Harris' neck surgery was indeed necessary, the accident having aggravated her preexisting condition. He further opined that "of [Harris'] current low back situation one-half is related to the preexisting condition and one-half to the effects of the injury of 1/9/08"; she was not yet at maximum medical improvement; and she might need another surgery for her lumbar condition.
Based upon his consideration of this record, the Referee determined that Harris had reached maximum medical improvement on February 19, 2008. The Referee's findings focused on Harris' credibility and the extent to which she was entitled to medical care due to the accident. With respect to the former, the Referee found that:
In particular, the Referee found that Harris' consistent "focus upon obtaining narcotic pain medication" and her "suspiciously timely" accident — which occurred soon after Stolte discontinued a prescription for narcotics — damaged her credibility. Given that Dr. Colburn's, Chiropractor Bailey's, and Nurse Practitioner Stolte's opinions were largely based on Harris' subjective, and potentially disingenuous, complaints of pain, the Referee concluded that they therefore rested on a "shaky foundation."
Regarding benefits, the Referee found that Harris "unquestionably suffered an accident and injury when she fell from the bus steps on January 9, 2008. That injury has been consistently described as a cervical and lumbar strain." However, given Harris' preexisting back and neck problems, he further found that, all her complaints "were easily compatible with her degenerative conditions in her spine and externalities." He concluded that "[a]t no time did any diagnostic imaging or examination testing show a truly objective basis upon which to ascribe an acute trauma as the likely cause of [Harris'] complaints." The Referee therefore recommended that Harris was entitled to temporary total disability and medical care benefits to February 19, 2008,
This Court's posture for reviewing Industrial Commission decisions is set forth
Id. (citations omitted). However, "[w]hether the Commission correctly applied the law to the facts is an issue of law over which we exercise free review." Pierce v. Sch. Dist. No. 21, 144 Idaho 537, 538, 164 P.3d 817, 818 (2007) (quoting Konvalinka v. Bonneville Cnty., 140 Idaho 477, 478, 95 P.3d 628, 629 (2004)). Further, the Commission's determinations "on the weight and credibility of the evidence should not be disturbed on appeal unless they are clearly erroneous." Zapata v. J.R. Simplot Co., 132 Idaho 513, 515, 975 P.2d 1178, 1180 (1999).
The Referee determined that because of Harris' inconsistencies in describing her symptoms and her seeming "addictive tendencies," that she lacked substantive credibility. Harris vigorously contests this on appeal, stating that the Referee "personally diagnosed Mrs. Harris with a prescription drug addiction" and that he erred by deducing that Harris "possibly staged her injury [and] was `faking' the symptoms in order to acquire more medication." Respondents counter that the record contained "substantial, indisputable evidence of [Harris'] drug seeking behavior," as well as an array of evidence as to her inconsistent, and at times, contradictory, description of her pain and symptoms. They argue that substantial and competent evidence supports the credibility finding.
"Determining the credibility of witnesses and evidence" is within the province of the Industrial Commission. Moore v. Moore, 152 Idaho 245, 254, 269 P.3d 802, 811 (2011). This Court has split its review of credibility determinations into two categories: observational credibility, and substantive credibility. Id. The former "goes to the demeanor of the [witness] on the witness stand and it requires that the Commission actually be present for the hearing in order to judge it." Id. "[S]ubstantive credibility may be judged on the grounds of numerous inaccuracies or conflicting facts and does not require the presence of the Commission at the hearing." Id. If the Commission's credibility findings are supported by substantial, competent evidence, we will not disturb them. Id.
We have upheld Commission findings of lack of substantive credibility where a claimant makes inconsistent statements regarding the industrial accident and the symptoms resulting therefrom. For example, in Painter v. Potlatch Corp., 138 Idaho 309, 314, 63 P.3d 435, 440 (2003), we upheld the Commission's substantive credibility findings where:
138 Idaho at 314, 63 P.3d at 440. The discrepancies found in the employee's description of the accident thus led this Court to conclude that "substantial, credible evidence supported the Commission's finding that" Painter lacked credibility. Id. A similar set of inconsistencies were present in Moore:
152 Idaho at 255, 269 P.3d at 812. Based on these inconsistencies, we again determined that the Commission had correctly concluded that the employee's testimony lacked substantive credibility. Id.
On the other hand, where employees claiming workers' compensation have proffered consistent — though not identical — testimonies, this Court has held that they have substantive credibility. For instance, in Stevens-McAtee v. Potlatch Corp., 145 Idaho 325, 329, 179 P.3d 288, 292 (2008), an employee initially gave a vague account of a forklift accident, but later "`improved' or `enhanced'" his testimony at hearing by adding a specific detail — that while driving the forklift, he hit a drain ditch. The Commission felt that this addition was a substantial change that damaged his credibility. Id. We disagreed because, "[a]lthough [the employee's] descriptions as to the cause of his injury were more vague prior to oral hearing," he "consistently maintained that his injury arose from the jostling and vibrations of his forklift." Id. at 331, 179 P.3d at 294. In the face of this consistency, the Court held the Commission incorrectly concluded that the employee's testimony "differed substantially" at hearing. Id.
Here, we conclude that the Commission had substantial, competent evidence that Harris lacked substantive credibility. The Commission's credibility finding was predicated on its conclusion that Harris was an "inconsistent historian" of the accident and her symptoms. The record is replete with Harris' contradictions — contradictions regarding how the accident occurred, her health history, and her symptoms.
For example, at the hearing Harris testified that she had not been suffering any physical problems when she arrived at work on the day of her fall. However, her supervisor's report noted that she was experiencing "lower back pain earlier in the [morning]" on the day of the accident, and the initial hospital evaluation on the day of the accident indicates she "said her back has been sore for the past couple of days." The initial report indicated she was complaining of upper back, neck, and right knee pain but no lower back pain. However, five days later she began complaining of lower back pain. Harris initially stated that she did not believe she lost consciousness after the fall, but approximately five months later, she reported that she did not "recall the circumstances [of the fall] and thinks she was knocked unconscious." Harris' conflicting recitals regarding the accident and her resulting symptoms are less like the clarifications in Stevens-McAtee, and more like the inconsistencies found in Painter and Moore.
Although some discrepancies in recounting a traumatic accident might be understandable, Harris also inconsistently stated her subjective accounts of pain and did so months after the accident — there is evidence of Harris
This last issue — Harris' apparent struggle with prescription narcotics, and its bearing on this case — is the root of Harris' contention that the Referee improperly "diagnose[d] a prescription-drug addiction" and consequently improperly "extrapolate[d] from a drug addiction that an injury was faked in order to obtain medication." Harris cites Industrial Commission decisions for the proposition that only trained professionals' opinions, or a documented history of abuse, could support such diagnoses. See Angela Freeborg v. Target Stores, Indus. Comm'n 2005-835 (2009 WL 5850540); Henderson v. Alliant Techsystems, Inc., Indus. Comm'n 2002-013729 (2007 WL 4299187). But these arguments are unavailing. The Referee never "diagnosed" Harris with an addiction, nor would he need to in order to make a judgment call regarding credibility. He merely found that, given Harris' admitted struggles with painkillers and admitted fears of withdrawal, her statements regarding subjective pain — which would directly affect her access to more narcotics — were naturally less credible. And, the Referee never concluded that Harris was "faking" it. Instead, he cited the "surprisingly frank" opinion of one doctor who indeed thought Harris was faking her symptoms to some extent.
It bears mentioning that Harris' use of medication also affected her substantive credibility in another sense: both Harris and her husband noted that the medication she was taking was affecting her during the Industrial Commission hearing. She testified that the narcotics made it "hard for [her] to remember things" that day, and her husband concurred that she was "not coherent" when medicated. Harris also told the Referee that she had taken four hydrocodone pills before the 9:30 a.m. hearing. Given Harris' concessions that hydrocodone affected her memory and that she had taken it before testifying, the Referee had further reason to consider the issue of narcotics when weighing her credibility.
This Court need not, and emphatically does not, weigh in on whether Harris was in fact addicted, or whether she "faked" her subjective complaints of pain. Teasing out these factual questions, and weighing credibility, was the job of the Commission. It should also be mentioned that, while the Referee did not conclude Harris faked her
Nevertheless, given the substantial, competent evidence that supported the Referee's conclusion that Harris struggled with prescription narcotic overuse, his conclusion that her credibility was accordingly affected was not error. We thus conclude that the Commission did not err in finding that Harris lacked substantive credibility.
The Commission adopted the Referee's opinion that Harris was "entitled to [temporary total disability] and medical care benefits to February 19, [2008], and for palliative medical care benefits to the extent already paid for by Defendants." February 19 was the date of Dr. Adams' examination of Harris, where he determined that Harris required no further treatment for her accident-related injuries and was able to return to work. The Commission concluded that following the exam, "Employer had a reasonable basis for discontinuing medical care benefits and for discontinuing [temporary total disability]."
Harris argues that the selection of February 19 as a cut-off date was arbitrary and that the Referee did not "fairly consider the evidence before him," which showed Harris was entitled to continued medical care past that date. Harris argues that the conclusions of several of her health care providers — namely, Nurse Practitioner Stolte, Dr. Demakas, Chiropractor Bailey, and Dr. Colburn — proves that she continued to have accident-related symptoms after February 19. Harris contends that this evidence and testimony "was either not considered, or interpreted by Referee Donohue as a scheme to get prescription medications." The Respondents agree with the Commission, and assert that with respect to Harris' neck pain, her various treatments have not resulted in any improvement. Regarding her lumbar condition, they argue that it was preexisting, and thus not related to the industrial injury. The Respondents thus conclude that additional treatment, for either condition, is not reasonable.
Injured workers are entitled to disability benefits "during `the period of recovery.'" I.C. §§ 72-408, 72-423; Hernandez v. Phillips, 141 Idaho 779, 781, 118 P.3d 111, 113 (2005). This Court has found that this period "ends when the worker is medically stable." Hernandez, 141 Idaho at 781, 118 P.3d at 113 (citing Jarvis v. Rexburg Nursing Ctr., 136 Idaho 579, 586, 38 P.3d 617, 624 (2001), noting that "medical stability" is synonymous with "maximum medical improvement"). Likewise, the Idaho Code obligates employers to:
I.C. § 72-432(1). This Court has clarified that medical care is "reasonable" when:
Magee v. Thompson Creek Mining Co., 142 Idaho 761, 766, 133 P.3d 1226, 1231 (2006) (quoting Jarvis, 136 Idaho at 585, 38 P.3d at 623).
On appeal Harris essentially does nothing more than ask this Court to reweigh the facts, and deem her experts more credible.
Fife v. Home Depot, Inc., 151 Idaho 509, 513, 260 P.3d 1180, 1184 (2011). Because Harris' appeal, at root, essentially asks this Court to reexamine the evidence, and find her experts more credible, as a fundamental matter we decline to do so.
Given the substantial, competent evidence that supports the Commission's decision, we affirm its order on appeal.
Harris finally argues that the Commission "abused its discretion in failing to award" her attorney fees and costs pursuant to I.C. § 72-804. Harris also contends that she is entitled to attorney fees and costs on appeal, "because [Employer and Surety] have refused to pay workers' compensation benefits without reasonable grounds to do so."
The Idaho Code allows awards of reasonable attorney fees when employers "without reasonable grounds discontinued payment of compensation" owed to disabled workers. I.C. § 72-804. Harris' sole basis for requesting fees is simply that the termination of benefits was unreasonable. Because we uphold the Commission's decision, a fee award is not warranted.
We affirm the Commission's order and award costs on appeal to Respondents.
Chief Justice BURDICK, and Justices EISMANN, W. JONES and HORTON CONCUR.
While the supplement clarifies Dr. Demakas' post-hearing note, we are still left with conflicting medical opinions, which boil down to factual disputes that are in the province of the Commission. Dr. Demakas' agreement or disagreement with Dr. Larson does not change the conclusion that substantial, competent evidence supports the Commission's determination.
