Hite v. Kulhenak Building Contractor

BAKES, Justice

(dissenting):

I don’t view with as much alarm as Justice McFadden the ruling of the majority which permits the introduction into evidence of the Guides to the Evaluation of Permanent Impairment of the American Medical Association, since those Guides might well have been admissible under I.C. § 9-402 and the authority of Julien v. Barker, 75 Idaho 413, 272 P.2d 718 (1954); In re Sutton, 83 Idaho 265, 361 P.2d 793 (1961); In Application of Boyer, 73 Idaho 152, 248 P.2d 540 (1952); Bell, Handbook of Evidence for Idaho Lawyers, 2d Ed., (1972), at p. 158. I do view with some alarm, however, the statement by the majority that reliable hearsay may be the basis of an award by the Industrial Commission, at least if the award is in favor of an employer-surety. We certainly don’t have such a favorable rule for claimants.

The real issue before this Court is whether or not the respondent surety introduced sufficient “substantial, competent evidence” to overcome the prima facie case of the claimant who appeared, together with his medical witness, and submitted substantial, competent evidence that the loss of his kidney in the industrial accident was the equivalent of 75% of the loss of one leg at the hip, thus entitling him to 135 weeks of compensation. In my opinion, the evidence offered by the respondent surety was not sufficient to overcome appellant’s prima facie case.

It has been a rule of long standing in this jurisdiction that in workmen’s compensation cases, the findings as to the cause, extent and origin of disability must be supported by at least some professional medical proof. Bottoms v. Pioneer Irrig. Dist., 95 Idaho 487, 511 P.2d 304 (1973); Johnson v. Boise Cascade, 93 Idaho 107, 456 P.2d 751 (1969); Cornish v. J. R. Simplot Fertilizer, 86 Idaho 79, 383 P.2d 333 (1963). This rule is probably best exemplified by this Court’s statement in Oliver v. Potlatch Forests, 73 Idaho 45, 245 P.2d 775 (1952), wherein the Court stated:

“Where it requires expert, scientific and professional skill to determine the cause, origin and extent of a disability, proof thereof must be by skilled, professional witnesses. (Cases cited).” 73 Idaho at 49, 245 P.2d at 777.

The Guides did not purport to be a personal evaluation of claimant’s condition nor were the standards contained in the Guides related to the individual health condition of claimant. This is not like the situation found in Johnson v. Boise Cascade, supra, wherein this Court held that a written report of an opinion rendered by a physician was substantial, competent evidence. Rather, this is a situation devoid of professional opinion.

Lacking “substantial, competent evidence” upon which a decision could be rendered in favor of respondent surety, the order of the Industrial Commission should be reversed with instructions to enter an order awarding compensation to the claimant based upon the only competent medical testimony in the record, i.e., the testimony of claimant’s physician, Dr. C. E. Groom.

McFADDEN, J., concurs.