Benton v. Gabe’s Painting, LLC, 051816 IDWC, IC 2015-017100

Case DateMay 18, 2016
CourtIdaho
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...

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