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Spivey v. Novartis Seed Inc.3/19/2002
what she did at Novartis. Dr. Botimer stated that if Spivey's account were accurate, then a person would get a different impression. Spivey's frozen shoulder condition returned after the surgery, and manipulation under anesthesia was performed on July 9, 1998; this occurred again on December 28, 1998. On or about December 28, 1998, Novartis terminated Spivey's employment.
A hearing was held on August 3, 1999. During the hearing, the referee found Spivey to be a credible witness, but on the other hand, found the testimony of the Novartis employees to be inconsistent and not credible. Spivey took the post-hearing deposition of Dr. Botimer. He indicated that her description of her daily work activity could lead to a rotator cuff tear. He further stated that Spivey's degenerative arthritis and the presence of osteophytes might have weakened and compromised the rotator cuff until a minor trauma could cause a tear. The defendants took the post-hearing deposition of Dr. Nicola. He stated that the act of reaching across the conveyor belt and removing very light weight objects would not be enough to cause a pop or rotator cuff tear. He did concede, however, that with the condition of Spivey's shoulder and AC joint coupled with the reaching motion, there was a greater chance she would damage her rotator cuff. He also admitted that the accident described by Spivey at least aggravated her condition and resulted in the need for treatment. Both sides submitted their post-hearing depositions, and the case came under advisement on January 21, 2000.
The referee found that Spivey had suffered an injury to her right shoulder caused by an accident arising out of and in the course of her employment on October 28, 1997. The referee's findings were based on Spivey's testimony, Dr. Botimer's opinion that her work caused her injury, and the concession by Dr. Nicola that the accident at work would have at least aggravated any pre-existing rotator cuff tear Spivey may have had, thus requiring medical care. The referee further found that the treatment for Spivey's right shoulder was reasonable. As such, Spivey was entitled to reimbursement of all medical expenses incurred in treating her injured shoulder under I.C. ยง 72-432.
On May 8, 2000, the defendants filed a motion for reconsideration, arguing that the referee's decision did not adequately explain how Spivey's job placed her at a greater risk of developing a rotator cuff tear than would the same movements done by any member of the general public. The Commission denied the motion on May 26, 2000. The Commission determined that the record supported the decision and declined the defendants' "invitation to introduce risk analysis from the occupational disease legal theory into the accident and injury legal theory."
Appellants filed their timely notice of appeal on June 28, 2000.
II. STANDARD OF REVIEW
In Jensen v. City of Pocatello, 135 Idaho 406, 409, 18 P.3d 211, 214 (2000), this Court set forth the following standard of review:
When this Court reviews a decision from the Industrial Commission, it exercises free review over questions of law but reviews questions of fact only to determine whether substantial and competent evidence supports the Commission's findings. Ogden v. Thompson, 128 Idaho 87, 88, 910 P.2d 759, 760 (1996). Substantial and competent evidence is "relevant evidence which a reasonable mind might accept to support a conclusion." Boise Orthopedic Clinic v. Idaho State Ins. Fund (In re Wilson), 128 Idaho 161, 164, 911 P.2d 754, 757 (1996).
Whether an injury arose out of the course of employment is a question of fact to be determined by the Commission. Kessler ex. Rel. Kessl
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