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McGee v. Lumber12/22/2000
attorney, Mr. McPeek, stated that the issue was one of basic liability, including stability. Mr. McPeek understood the issues of impairment and disability to be reserved for a later hearing. In an attempt to clarify the issues, the referee stated the issues as 1) whether there was an accident and injury on or about May 1, 1994, while McGee was employed at Erdman, and 2) whether McGee's current condition was related in whole or in part to the accident and injury he sustained at J.D. on or about January 20, 1992. The referee noted, "To me, we're all talking just threshold. Is this current condition due to one or the other employment or both?" Although confusion existed over the exact issues to be addressed at the hearing, the parties, including McGee, knew that the issue of liability, at the very least, was going to be addressed at the December hearing. In fact, in McGee's motion to bifurcate the hearing, he specifically requested that "liability" be determined at the first hearing. Therefore, McGee had notice that various issues pertaining to liability would be discussed and his due process rights were not violated when medical stability was determined at the first hearing.
B. THE INDUSTRIAL COMMISSION APPLIED THE CORRECT LEGAL STANDARDS TO THE ISSUE OF MEDICAL STABILITY.
Determination of permanent impairment and temporary disability are questions of fact for the Industrial Commission. Soto v. Simplot, 126 Idaho 536, 539, 887 P.2d 1043, 1046 (1994). The weight and credibility of the evidence relied upon by the Commission will not be scrutinized by this Court. Id. Evidence impeaching a claimant's credibility need not be ignored in a permanent impairment hearing. Id. The reports from the physician who treated the claimant should be given at least as great, if not greater, weight than reports from a physician who sees the claimant only in preparation for trial. Graves v. American Smelting & Refining Co., 87 Idaho 451, 456, 394 P.2d 290, 293 (1964).
McGee argues that the date of medical stability was never formally determined and that he was not given the chance to present evidence regarding the date at which his injuries were to be regarded as nonprogressive. Because medical stability must exist before a permanent disability can be found, McGee believes the Commission inappropriately determined the date of permanent disability.
In Referee Cheri Bush's Findings of Fact and Conclusions of Law dated October 10, 1997, she found the date of stabilization to be late March of 1992. The referee noted that McGee had obtained a full work release at that time from Dr. Fowler, the physician who had treated McGee immediately after the accident. Additionally, McGee returned to work in February of 1992 and did not seek additional medical treatment. Testimony presented at the December hearing established that McGee told Dr. Fowler on March 12, 1992, that he was not having pain and that he wanted to go back to work and that McGee performed hard, physical labor for two years following the January 1992 accident.
McGee did not meet the burden of establishing that he was still in the recovery period. Additionally, by telling Dr. Fowler that he was not experiencing pain and then by later claiming that he was misleading Dr. Fowler in order to claim a full work release, McGee placed his credibility into question. As the determination of temporary or permanent disability is a question of fact, a look at the evidence presented on McGee's medical condition indicates that substantial, competent evidence existed for the Industrial Commission to determine that McGee was medically stable in March of 1992. The order of the Industrial Commission finding that McGee was medically stable in
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