No Need for Magic Words

By Fred J. Lewis

In Green v. Industrial Special Indemnity Fund (Second Injury Fund), the Claimant was a sawyer who was struck by a falling tree. The Second Injury Fund appealed from the Idaho Industrial Commission’s determination that Green was totally and permanently disabled and that his disability was due to the combined effects of a lumbar fusion and cervical fusion related to the industrial accident and a preexisting thoracic fusion. The Second Injury Fund argued that the Idaho Industrial Commission made a mistake regarding the application of the “but for” test for determining Second Injury liability.

The Idaho Supreme Court specifically held that in applying the “but for” test, it is not necessary for a claimant’s physician to use magic language in rendering an opinion regarding the effects of the prior condition and the last industrial accident. The Second Injury Fund focused on two sentences in the Commission’s decision to argue that the Commission failed to apply the “but for” test. But those two sentences are: “Therefore, per Drs. Ganz and McNulty, the fact that Claimant has a preexisting T12-L1 fusion increases the risk that he will have further problems from L3-5 fusion unless he observes certain prophylactic limitations/restrictions. We believe this demonstrates that Claimant’s preexisting thoracic spine condition does combine with the effects of the work accident to contribute to Claimant’s total and permanent disability.”

The Idaho Supreme Court noted that the two sentences did not have the magic words “but for” included in them. However, the Idaho Supreme Court was convinced that the Commission’s decision looked at as a whole, correctly employed the “but for” test.

The Idaho Supreme Court ultimately affirmed the Commission’s finding that the Claimant and the Idaho Workers’ Compensation insurance company that insured the claimant’s employer had met the “but for” test with credible evidence from two vocational rehabilitation consultants, Dr. Nancy Collins and Dan Brownell. The both testified that it was a combination of all of the Claimants’ spinal fusion surgery that led to him being rendered totally and permanently disabled. The thoracic fusion surgery did not limit the claimant in such a way that he was totally and permanently disabled as a result of the thoracic fusion only. The Idaho Supreme Court also noted that the combination of all three spinal fusion surgeries resulted in the restriction that were shown in the Functional Capacity Evaluation. The take away from, this decision is that the Idaho Supreme Court will affirm decisions awarding total and permanent disability benefits against the Second Injury Fund so long as there is competent evidence to show that there is a combination of both preexisting injuries and injuries from the final accident that render the Claimant to be totally and permanently disabled. The Idaho Supreme Court is willing to look at the decisions as a whole and not reverse the Idaho Industrial Commission merely because they do not use the magic words of the “but for” test in their decision.


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