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Case History Document



Koester v. State
Entered By: Marc C Gabriel/LymeNetDate Created: 8-27-93
Document Type: Decision
Title: Decision for: Koester v. State
Debi KOESTER, Claimant-Appellant, v. State of Idaho,Community Action Program, Department of Health & Welfare,
Employer, Defendant, STATE INSURANCE FUND, Defendant-Respondent

KOESTER v. STATE

No. 19610

SUPREME COURT OF IDAHO

124 Idaho 205; 858 P.2d 744; 1993 Ida.; 22
A.L.R.5th 824


August 27, 1993
August 27, 1993, Filed

SUBSEQUENT HISTORY: Released for Publication September 20, 1993.

PRIOR HISTORY:

Appeal from the Industrial Commission of the State of Idaho.

Appeal form the Industrial Commission's order denying worker's
compensation benefits because the appellant failed to sustain her
burden of proving that her injury occurred in the course of her
employment. 1993 OPINION NO. 99

DISPOSITION: Affirmed.

COUNSEL: Cooke, Lamanna, Smith & Cogswell, Priest River, for
appellant. Nicholas M. Lamanna, argued.

Larry EchoHawk, Atty. Gen., Boise, and Randall, Blake & Cox,
Lewiston, for respondent. Jay P. Gaskill, argued.

JUDGES: Silak, Justice. McDevitt, C.J., Johnson, J., Judd, J. Pro
Tem., concur. Bistline, Justice, specially concurring.

OPINIONBY: SILAK

OPINION: [*206] [**745] Debi Koester sought worker's
compensation benefits for two separate injuries: the first was Lyme
disease from an alleged tick bite, and the second was a back injury
from a fall, both of which she claimed occurred during the course of
her employment as a homemaker for the State of Idaho Community Action
Program (Action), who carried workers' compensation insurance through
the State Insurance Fund (State Fund). Koester appeals from the
Industrial Commission's order adopting the findings and conclusions
made by a Commission referee that State Fund was not liable for the
injury allegedly resulting from an insect bite.

FACTS AND PROCEDURAL BACKGROUND

Koester went to work for Action in the first part of 1988 as a
home care provider. Koester's duties included entering the homes of
elderly persons who were either confined or needed help caring for
themselves. One of her clients was an elderly woman who lived in a
small trailer outside of Potlatch, Idaho, along with as many as
twenty-five cats, which were not allowed outside the home.
The home was in a deplorable condition.

One day during the first two weeks of May 1988, while cleaning
this client's bed, Koester felt an itching sensation on the inside of
her left ankle. She did not immediately look at the spot, but loaded
up the soiled linen and advised the client that she was leaving to
take the bedding to the laundromat. Koester then looked down and
noticed that she had "got a bite." Koester did not see what bit
her, nor did she "actually feel the bite initiate." The bite
produced continual itching and a discolored inflammation about two to
three inches in diameter. She applied a local antibiotic ointment
and the inflammation disappeared after two weeks. The day after the
bite, Koester showed the mark to a co-worker, a secretary, and her
work supervisor at Action and reported that she had been bitten.
She did not, however, report this bite to her doctor. The bite did
not [*207] [**746] affect her ability to work during that time.
Within two to three months after the bite, Koester began to
experience numbness and tingling in her extremities, increasingly
severe headaches, irregular heart palpitations and chest pains.
Koester's physician at the time, Dr. Carl Melina, considered the
symptoms to be caused by stress from her work and family
responsibilities.

Koester continued to work for Action until July 27, 1989. On that
date, Koester sustained the back injury underlying her second claim.
The injury occurred when she slipped and fell while cleaning the home
of a client. Koester went to an orthopedic surgeon, Dr. Graeme
French (French), for treatment of her back injury. Initially, French
diagnosed Koester with a sprained sacroiliac. However, after she
responded negatively to therapy, French made additional inquiries
into Koester's health. French inquired into Koester's medical
history and found symptoms of severe headaches, loss of sensation in
her extremities, swelling in her lymph glands, and pain in her
muscles and joints. [***4] French had tests performed from which
he concluded that Koester's symptoms were probably caused by a
neuroborreliosis infection and diagnosed chronic Lyme disease. He
concluded further that the pain which Koester continued to experience
in her back and left leg was largely attributable to Lyme disease,
not solely the back injury she suffered when she fell in July of
1989. State Fund had been paying Koester disability benefits for her
back injury; however, after French reported that Koester's continuing
disability was most likely caused by Lyme disease, State Fund denied
her any further benefits.

Koester subsequently filed two applications for hearing seeking to
recover benefits for her first injury (Lyme disease) which she
alleged resulted from an accident (tick bite) she suffered on the job
in May 1988, and for her second injury (back) when she fell at work
in July 1989. Koester's claims were consolidated and heard by a
referee on April 18, 1991. In the findings of fact, conclusions of
law, and proposed order, the referee found that Koester had failed
to meet her burden of showing that her first disability resulted from
an injury which occurred in the course of her employment.
Therefore, [***5] the referee concluded it was not necessary to
determine whether Koester had Lyme disease.

The referee concluded that Koester could not identify what bit
her, or when, and it was impossible to ascertain whether the insect
bite which caused the Lyme disease occurred on the job or somewhere
else. Koester claimed she received the insect bite which caused her
Lyme disease which she was working the client's home described
above. The referee found, however, that although the conditions in
the client's home were deplorable and the client and many cats lived
in filthy conditions, the evidence showed that the client was
bedridden, the cats were never allowed to leave the trailer, and
there was no evidence from which to infer the presence of ticks or
lice in the home. During 1988, Koester and her family lived in a
residential area of Potlatch with two large fir trees in the
backyard, grass in the yard, lilac bushes along the side of the
house, and other trees growing at the edge of town. Koester owned
two outside pets and one inside pet. Koester's husband was logging
during the months of May, June and July of 1988, and when he was
working, he was in the woods; he started back to work after "breakup"
[***6] and would return home each night after work. Based on this
evidence, the referee found that Koester "may actually have been
more likely to encounter ticks in her own home than" in the client's
home where she claims to have been bitten. Therefore, the referee
concluded, Koester had failed to meet her burden of proving that she
contacted, and was bitten by, a tick or louse in the course of her
employment.

Based on these findings the referee concluded that Koester was not
entitled to benefits for her disabilities related to Lyme disease.
The referee found, however, that Koester was entitled to the benefits
she had already received for her back injury, but because she had
failed to show that her continuing disability was related to her back
injury and not the Lyme disease, [*208] [**747] Koester was not
entitled to any further benefits on her second claim.

These findings and conclusions were issued on September 19, 1991.
On September 30, 1991, the Industrial Commission adopted and filed
the referee's findings and conclusions and issued an order denying
Koester's claim based upon the insect bite. Koester filed a notice
of appeal on October 23, 1991.

ISSUES

Although Koester asserts three issues on [***7] appeal, her
appeal raises only one issue: whether the Industrial Commission's
findings and conclusions are supported by substantial competent
evidence. The other issues Koester raises concern the medical
diagnosis of Lyme disease and her credibility concerning her medical
condition. Because the Commission did not rule on Koester's medical
diagnosis, these issues are not properly before this Court and we
will not address them.

STANDARD OF REVIEW

In appeals from the Industrial Commission our review is limited to
whether the Commission's factual findings are supported by
substantial and competent evidence. Neufeld v. Browning Ferris
Industries, 109 Idaho 899, 902, 712 P.2d 600, 603 (1985); IDAHO
CONST. art. V, @ 9; I.C. @ 72-732. The determination whether an
injury arose from the course of employment is a question of fact.
Id. This determination requires the weighing of evidence and
assessing the credibility of witnesses, and the Commission's
conclusions as to weight and credibility will not be disturbed unless
they are clearly erroneous. Id. While the Workers' Compensation Act
is to be construed liberally in favor of the injured [***8]
employee, Steinebach v. Hoff Lumber Company, 98 Idaho 428, 431, 566
P.2d 377, 340 (1977), a claimant has the burden of proving a
probable, not merely a possible, causal connection between the
employment and the injury or disease. Neufeld, 109 Idaho at 902,
712 P.2d at 603.

KOESTER FAILED TO PROVE HER INJURY WAS JOB RELATED

Koester argues that "the medical evidence did prove that [she] was
bitten" on the job and that "in all probability" the insect bite that
she received in May 1988, occurred in the course of her employment.
To support her arguments, Koester's brief cites extensively from the
depositions of her doctors; however, she failed to provide this Court
with a record that included the depositions. The record before us
shows that Koester presented testimonial evidence wherein she states,
"[w]hen I got the bite, I was in the home of Kathryn Edar, I was
stripping her bed. I didn't actually feel the bite initiate." In
addition, she testified that the bite became inflamed and produced a
patchy discolored spot around the bite which lasted approximately two
to three weeks after the bite was [***9] discovered.

State Fund argues that there was no direct evidence of when or by
what Koester was bitten. To support its argument State Fund points
out the following: Koester merely noticed for the first time what she
alleged was a bite while she was cleaning a client's home. She never
actually saw what bit her. There was no evidence from which to infer
the presence of ticks or lice in the client's home. The only insects
Koester ever testified she observed in the home were flies. Further,
the client was bedridden and her pets were never allowed to leave the
trailer. On the other hand, Koester's home had two large fir trees
in the backyard, lilac bushes next to the home, grass in the yard,
two outside pets, and one inside pet. She lived on the edge of town
where other trees were growing nearby. Koester's husband was a
logger who, at the time in question, worked each day in the woods and
came home each night, and Koester and her family also went camping
during this time. Finally, State Fund concludes, even if Koester was
bitten by a tick, the circumstantial evidence shows that Koester more
likely would have been bitten in her own home than on the job.

The case of Roe v. Boise Grocery Company, 53 Idaho 82, 21 P.2d 910
(1933), [*209] 0 [**748] relied on by the Commission, is
instructive. Charles Roe died of Rocky Mountain Spotted Fever. The
Industrial Accident Board (IAB) found that Roe contracted the fever
from a tick bite which Roe received while in the course of his
employment. While the tick bite was discovered when Roe was at home,
the Court held that the evidence was sufficient to sustain the IAB's
finding that Roe was bitten on the job. The evidence showed the
following: (1) Roe was a traveling salesman who was considered to be
"on the job" from the time he left his home in Boise until he
returned, sometimes several days later; (2) Roe's sales routes took
him through rural areas of Idaho and Oregon in which there were ticks
that carried the fever virus; (3) Roe found a tick embedded in his
leg the morning after he returned home from a sales trip during which
he had spent a number of hours gathering rock in the sage brush to
help get his car out of a mudhole; (4) this bite was inflamed and
showed signs of being infected when it was discovered; (5) after
spending one night at home, Roe traveled on personal business to
Mountain Home without getting out of his car before he returned; (6)
Roe then made a business trip 1 to Bruneau, stopping briefly to
visit his daughter; (7) upon his return home, Roe discovered a bite
on his shoulder blade; (8) Roe entered a hospital shortly thereafter
with the fever; and finally (9) Both tick bites were discovered
within the incubation period for the fever.

Although Roe presents the opposite circumstance, in that Roe
discovered the tick bites when at home and Koester discovered a bite
on the job, it is helpful to analyze and compare the evidence in both
cases. The Roe Court reviewed evidence of: the physical
characteristics of tick bites; the characteristics of the disease;
Roe's job requirements and how they would bring Roe into contact with
a carrier tick; where Roe had been during the incubation period prior
to the tick bites; and when Roe noticed the tick bites. The
Commission properly utilized Roe to support its findings that
Koester had not met her burden.

The Commission concluded that there were "[n]o such compelling
facts" in Koester's case. The Commission's findings conclude that
Koester never found or saw any tick on her leg, let alone embedded
in her leg. There was no evidence of ticks or lice in the home where
she noticed the bite. Koester 2 presented no evidence to show how
long she had been at the home or had been on the job at another
home. However, there was evidence that her husband was a logger
who worked in the woods and came home each night, and that Koester
had outside pets at her home which was at the edge of a rural town.
Finally, Koester did not "actually feel the bite initiate"; thus the
referee concluded that it was "impossible to ascertain" where and
when she was bitten. We agree with State Fund's argument that these
findings and the Commission's conclusions should be upheld because
they were supported by substantial competent evidence.

While Koester's testimony about where she noticed being bitten
raised the possibility that she was bitten in the course of her
employment, she failed to put on any other evidence such as that
viewed as sufficient in Roe, to strengthen her contention that in
all probability the bite occurred at her workplace. The record
before this Court shows no evidence concerning the incubation period
of Lyme disease; how long after a bite symptoms become evident; how
long she had been at work before she noticed the itching; whether
itching is an immediate reaction to a tick bite; or 3 whether ticks
that carry Lyme disease are prominent in the Potlatch area.
Additionally, Koester was not diagnosed with Lyme disease until
approximately eighteen months after she noticed the bite on her leg.

In conclusion, unlike the situation in Roe, where extensive
testimony eliminated other possible sources of infection by both time
and place, Koester failed to eliminate any other possibilities.
Therefore, we hold that there is substantial competent evidence to
support the Commission's findings and conclusions that Koester failed
to meet her burden of proving she received a bite which [*210]
[**749] allegedly caused Lyme disease in the course of her
employment.

CONCURBY: BISTLINE

CONCUR: BISTLINE, Justice, specially concurring.

I agree with the majority's inevitable conclusion that substantial
and competent evidence supports the referee and Commission's
conclusion that Koester failed to meet her burden of proof as to her
injury occurring within the scope of her employment. This special
concurrence is to express my unease at the referee's overall approach
and to suggest some changes in the way workers' compensation cases
are appealed to the Commission.

In the 4 summer of 1992 the Court issued its opinion in Trapp v.
Sagle Volunteer Fire Dept. v. State Insurance Fund, 122 Idaho 655,
837 P.2d 781 (1992). That controversy bore interesting similarity
to Debi Koester's present action and is noteworthy for the fact that
the final decision there, as here, was authored by referee John
Bauman. As inferentially noted in the opinion of Justice Silak, the
Industrial Commission did not preside nor participate at the hearing
where evidence was presented by Debi Koester. It rather assigned that
task to Mr. Bauman. As the Court's opinion points out, in Koester's
case Mr. Bauman fashioned the findings of fact, conclusions of law,
and proposed order for the signature of the Commissioners:

[T]hat Koester had failed to meet her burden of showing that her first
disability resulted from an injury which occurred in the course or
scope of her employment. Therefore, the referee concluded, it was
not necessary to determine whether Koester had Lyme disease.

The referee concluded that Koester could not identify what bit
her, or when, and it was impossible to ascertain whether the insect
5 bite which caused the Lyme disease occurred on the job or
somewhere else. The referee found that although the conditions in
the client's home were deplorable and the client and many cats lived
in filthy conditions, the evidence showed that the client was
bedridden, the cats were never allowed to leave the trailer, and
there was no evidence from which to infer the presence of ticks or
lice in the home. During 1988, Koester and her family lived in a
residential area of Potlatch with two large fir trees in the
backyard, grass in the yard, lilac bushes along the side of the
house, and other trees growing at the edge of town. Koester owned two
outside pets and one inside pet. Koester's husband was logging during
the months of May, June and July of 1988, and when he was working, he
was in the woods; he started back to work after 'breakup' and would
return home each night after work. Based on this evidence, the
referee found that Koester 'may actually have been more likely to
encounter ticks in her home than in the client's home where she
claims to have been bitten.' Therefore, the referee concluded,
Koester had failed to meet her burden of proving that she contacted,
and was bitten, 6 by a tick or louse in the course or scope of her
employment.

Op. at 207-208, 858 P.2d at 746-747 (emphasis added). The referee
is readily seen as overindulging in the mere surmise that Koester
was more apt to encounter ticks in her home than in the home of the
bedridden woman with "many cats living in filthy conditions." The
purported finding which the referee wrote suggesting that "Koester
may have been more likely to encounter ticks in her own home than
in the client's home" is naught but sheer and whimsical speculation,
and is of questionable necessity in resolving the claimant's case.
The Commission, in its merely accepting and adopting the views of
its referee, is seen as rather lackadaisical.

Bauman, however, was not lax in performing his assigned function
of writing a set of findings of fact, fifty-seven to be exact,
followed by seven conclusions of law. His performance concluded with
his recommendation "that the entire Commission adopt the following
proposed Order" (which he had drafted) consumingcbut approximately
fifteen lines, and which favored [*211] [**750] claimant
Koester very little, if any. There is no way of knowing to what
extent, if any, the Commission labored in its review of the referee's
7 findings and conclusions. Unlike the Trapp controversy, cited
above, where two referees participated as hearing officers, with
input from both, here Mr. Bauman was solely in charge with free
rein to write as he chose.

That foregoing observation suggests the further thought that there
may be good reasons, presently existing, for considering an entirely
new format for hearings on industrial accident claims different from
the current format, where the Commission performs no function other
than, as here, to await the referee's report of his findings and
conclusions and favorably adopt and approve the same, or not do so.
As illustrated by the case at hand, it is becoming more and more
clear that the Workers' Compensation Act, as presently administered,
may not be directed at providing the sure and certain relief to the
worker, which was the legislature's promise in enacting the Workers'
Compensation Act of 1971.

Far better, it is seriously suggested, that controversies such as
the instant Koester case and the prior Trapp case should require
further hearings before the Commission itself by way of or on appeal
from the referee's decision; there competent counsel other than 8 the
attorneys who appeared as such at the referee's hearing would
actually advance, first, the case for the claimant, and second, the
case for the defense. Perhaps a third participant, a wholly neutral
but well-informed compensation counsel, would round out a trio of
experts which would be well positioned to furnish the Commission with
a wholly neutral recommendation.

Speaking only for myself, in the year 1992 and now this year of
1993, there is good reason for concern as to workers' compensation
claims decisions which essentially are, as here, the product of one
person's views, knowledge, and ability. Hopefully, a better day will
arrive when three referees, if not three Commissioners, not only
decide, but preside, as well. Here in Koester's case that day had
not arrived. There was a time during my practice when that was
generally the existing format. Here the entire presentation of
claimant's case and then surety's case was presided over by just one
person, referee Bauman. He then wrote out the Commission's decision;
it was readily adopted by the Commission.

In the view of this one member of the Court, that is an awesome
responsibility to have affixed on one person, the referee. 9 It
would be indeed interesting to see the decision that would result
from a mock trial of the issues which were presented to referee
Bauman, as decided by a panel of surety's attorneys in opposition to
a panel of claimant's attorneys, perhaps three to a side.

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