ERIC BENTON, Claimant,
v.
GABE’S PAINTING, LLC a/k/a GABE’S PAINTING & PROPERTY RESTORATION, LLC, GABRIEL REYES and YOLANDA GARCIA REYES, Employer, Defendants.
No. IC 2015-017100
Idaho Workers Compensation
Before the Industrial Commission of the state of Idaho
May 18, 2016
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
RECOMMENDATION
R.D.
Maynard, Chairman.
INTRODUCTION
Pursuant
to Idaho Code § 72-506, the Idaho Industrial Commission
assigned the above-entitled matter to Referee Alan Taylor,
who conducted a hearing in Boise on January 15, 2016.
Claimant, Eric Benton, was present in person and represented
by Bryan S. Storer, of Boise. Defendant Employer, Gabe's
Painting, LLC a/k/a Gabe's Painting & Property
Restoration, LLC, (Gabe's Painting) was not represented
by counsel.
1 Defendants Gabriel
Reyes and Yolanda Garcia Reyes were represented pro se. The
parties presented oral and documentary evidence. No
post-hearing depositions were taken and Claimant later
submitted briefs. None of the Defendants submitted a brief.
The matter came under advisement on March 10, 2016.[2]
ISSUES
The
issues to be decided are:
1.
Claimant's entitlement to medical care due to his
industrial accident; 2. Claimant's entitlement to
temporary disability benefits due to his industrial accident;
3.
Defendants' liability to Claimant for the penalties set
forth in Idaho Code § 72-210 for failing to insure
liability; and
4.
Whether Gabriel Reyes and/or Yolanda Garcia Reyes are
personally liable for any compensation due Claimant pursuant
to Idaho Code § 72-319.
5. All
other issues are reserved.
3
CONTENTIONS
OF THE PARTIES
Claimant
asserts he suffered an industrial accident on June 23, 2015,
when he fell from a ladder while working for Gabe's
Painting. He asserts Gabe's Painting was not insured at
the time of his accident and seeks medical and time loss
benefits together with statutory penalties. Defendants
Gabriel Reyes and Yolanda Garcia Reyes acknowledge
Claimant's industrial accident but assert he fell while
painting from a ladder that he was instructed not to use.
EVIDENCE
CONSIDERED
The
record in this matter consists of the following:
1. The Industrial Commission legal file;
2. The testimony of Claimant, Gabriel Reyes, and Yolanda
Garcia Reyes taken at the hearing; and
3. Claimant's Exhibits 1-11 admitted at the
hearing.4
After
having considered the above evidence and the arguments of the
parties, the Referee submits the following findings of fact
and conclusions of law for review by the Commission.
FINDINGS
OF FACT
1.
Claimant was born in 1975 and resided in the Caldwell area at
the time of the hearing. He is right hand dominant.
2.
Gabe's Painting is an Idaho limited liability company per
filings by Gabriel Reyes with the Idaho Secretary of
State.
5 Gabriel Reyes was the
initial manager of Gabe's Painting. Gabe's Painting
employs from approximately four to eight workers and performs
residential and commercial painting and repairs. Gabriel
Reyes and Yolanda Garcia Reyes are husband and wife. At all
relevant times Gabriel Reyes and Yolanda Garcia Reyes were
registered members of Gabe's Painting per filings with
the Idaho Secretary of State.
3.
Claimant worked for Gabe's Painting from time to time
commencing in 2008. In March 2015, Claimant resumed working
for Gabe's Painting. By June 1, 2015, Claimant was
working full-time for Gabe's Painting earning $11.00 per
hour.
4.
Gabe's Painting carried worker's compensation
insurance coverage from time to time after commencing
operation in 2005. Gabe's Painting was insured by
Federated Mutual Insurance Company from approximately March
5, 2015, until June 6, 2015.
6 However, from June 7 through 28, 2015,
neither Gabe's Painting, Gabriel Reyes nor Yolanda Garcia
Reyes had worker's compensation insurance coverage.
Gabriel Reyes acknowledged there was no worker's
compensation insurance coverage in place on June 23, 2015.
Transcript, p. 61.
5.
Industrial accident and treatment. On June
23, 2015, Claimant was painting a private residence for
Gabe's Painting, LLC. Claimant stood on a ladder provided
by Gabe's Painting which Miguel, a Gabe's Painting
employee and Claimant's supervisor on the painting job,
had instructed Claimant to use or at least acquiesced in
Claimant using. Miguel was painting from another ladder
nearby. Claimant was painting approximately 15 to 18 feet
from the ground when his ladder fell and Claimant landed upon
a concrete driveway sustaining severe injuries. Mr. Reyes
arrived at the scene very shortly after Claimant's fall,
provided assistance, and summoned an ambulance. At
Claimant's request a coworker applied a shirt as a
tourniquet to control bleeding from Claimant's obviously
fractured right arm until paramedics arrived.
6.
Claimant was taken by Ada County Paramedics via ambulance to
the emergency room of St. Alphonsus Regional Medical Center
in Boise where he was found to have blunt chest trauma, head
injury, rib fractures, contused liver and spleen, severely
comminuted displaced right arm fracture with distal ulna and
radius protruding through the skin and ulna dislocated from
the carpal bones, extensor tendon entrapment and laceration,
jaw fracture and dislocation, multiple fractured and
dislodged teeth, nasal fracture, open jaw laceration
extending to the bone, concussion, and right external
auditory canal fracture with displaced bone fragment and
bleeding from the ear. He was taken to surgery urgently and
hospitalized commencing June 23, 2015. Claimant remained
hospitalized for approximately two weeks and was treated with
multiple diagnostic scans, medications, sutures, operative
intervention with external fixation of his upper right
extremity, and his jaw was wired shut.
7.
After his discharge from the hospital, Claimant received
substantial ongoing medical treatment. His jaw remained wired
shut for approximately two and one-half months and his right
forearm remained immobilized by multiple pins connected to an
external fixator for at least four months. Claimant underwent
additional right forearm surgery including bone marrow
grafting in an effort to reconstruct his right wrist.
8.
Claimant has not worked from the time of his fall through the
date of the hearing.
9.
Gabriel Reyes visited Claimant at the hospital and offered
encouragement. However, none of the Defendants have paid any
benefits to...