ARTURO AGUILAR, Claimant,
v.
STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant.
No. IC 2011-024699
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
June 5, 2020
FINDINGS
OF FACT, CONCLUSIONS OF LAW, AND ORDER ON REMAND
Thomas
P. Baskin, Chairman.
This
matter came before the Commission on remand from a decision
of the Idaho Supreme Court issued March 14, 2019. At a status
conference held July 30, 2019, the parties stipulated that no
additional evidence need be adduced and that the matter could
be resubmitted to the Commission for decision consistent with
the Supreme Court’s Order on Remand. A briefing
schedule was established. The matter is now ready for
decision. The Commission hereby issues the following findings
of fact, conclusions of law and order.
FINDINGS
OF FACT
1. This
matter originally came before the Commission for hearing on
July 22, 2015. Subsequent to hearing, Claimant and
Employer/Surety reached a settlement. Claimant’s
remaining claims against Defendant State of Idaho, Industrial
Special Indemnity Fund (“ISIF”) came under
advisement on or about July 20, 2017. The Commission entered
its decision on or about October 13, 2017. In connection with
the issue of ISIF’s liability, the Commission made
several specific findings which were not challenged on
appeal, but which are relevant to the issues before the
Commission on remand. By virtue of his low back condition
alone, the Commission found that Claimant was totally and
permanently disabled as of the date of hearing. The
Commission found that Claimant’s physician-imposed low
back restrictions were the same at the time of hearing as
they were following his 2007 low back surgery. The parties
acknowledge that Claimant is currently totally and
permanently disabled as well.
2. In
its original decision, the Commission found that while
Claimant is totally and permanently disabled by reason of his
low back condition alone, Claimant failed to prove that his
pre-existing low back condition from his 2006 accident
combined with his low back injury flowing from the 2011
accident to cause total and permanent disability. The
Commission found the evidence insufficient to prove that
Claimant would not now be totally and permanently disabled
but for the pre-existing low back impairment.
3. On
appeal, the Court noted the Commission’s finding that
Claimant’s medical restrictions were the same both
before and after the subject accident. The Court also noted
the Commission’s conclusion that Claimant was totally
and permanently disabled as of the date of hearing. From
those findings, the Court concluded that the Commission
implicitly found that Claimant was totally and permanently
disabled at the time of the subject accident. The Court
further concluded that this implicit finding was inconsistent
with the fact that Claimant was working regularly at two
physically demanding jobs at the time of the subject
accident. Since the evidence was uncontradicted that Claimant
was so employed at the time of the second accident, this fact
was sufficient to meet Claimant’s burden of proving
that he was not an odd-lot worker immediately prior to the
subject accident. Bybee v. State Industrial Special
Indemnity Fund, 129 Idaho 76, 921 P.2d 1200 (1996).
Having made this threshold showing, the Court ruled that the
burden of proof shifted to ISIF to show that Claimant was an
odd-lot worker, even though he was working. ISIF could do
this by showing that Claimant was only employed at the time
of injury due to superhuman effort, the sympathy of his
employer, a business boom or good luck. Aguilar v.
Industrial Special Indemnity Fund, 164 Idaho 893, 901,
436 P.3d 1242, 1250 (2019). Because the Commission did not
address whether ISIF had met its burden of proving futility,
the case was remanded for further findings by the Commission
on this issue. However, the Court further ruled that in the
event ISIF cannot carry its burden under Bybee,
Claimant still retains the burden of proving all the elements
of ISIF’s liability as set forth in I.C. § 72-332.
4.
Next, the Court addressed the Commission’s conclusion
that Claimant failed to adduce proof sufficient to
demonstrate that the subject accident “combined
with” his pre-existing low back condition to cause
total and permanent disability. The Court observed that under
I.C. § 72-332 the final element of ISIF’s
liability, i.e., the “combining with” element, is
stated in the disjunctive. The final element of ISIF’s
liability requires the injured worker to demonstrate that he
would not have become totally and permanently disabled,
“but for” the pre-existing impairment. I.C.
§ 72-332. This element of the case can be proven in two
ways: first, the injured worker may demonstrate that the
pre-existing condition and the subject accident combined to
cause total and permanent disability. Second, the “but
for” test may be satisfied by demonstrating that the
subject accident aggravated or accelerated the pre-existing
condition to cause total and permanent disability. See
Aguilar, 164 Idaho at 901-02, 436 P.3d at 1250-51
(outlining the disjunctive test of the fourth and final
element of I.C. § 72-332). It was the second element of
the disjunctive test that the Commission failed to apply. On
remand, the Court directed the Commission to evaluate this
means of satisfying the “but for” test, in
addition to the “combining with” method that was
previously considered.
5. The
evidence considered by the Commission is the same evidence
outlined in the original decision; neither party desired to
adduce additional evidence on remand. ISIF concedes that
Claimant is totally and permanently disabled as of the date
of hearing. Additionally, ISIF concedes that it cannot prove
that it would have been futile for Claimant to search for
other employment had Claimant lost the jobs he was performing
at the time of the subject accident. Said differently, ISIF
concedes that, at the time of the subject accident, Claimant
was not employed only by reason of a business boom,
sympathetic employer, temporary good luck or superhuman
effort. ISIF’s Post-remand Brief 15. Indeed, ISIF
acknowledges that Claimant’s testimony concerning his
subjective abilities and symptoms make meeting this burden of
proof impossible. Therefore, per Bybee, we conclude
that Claimant was not an odd-lot worker at the time of the
subject accident, but do not disturb our conclusion that as
of the date of hearing he was totally and permanently
disabled. Further, nothing disturbs our previous findings
that Claimant’s total and permanent disability is due
to his low back condition alone, and that his medical
restrictions for his low back condition, before and after the
subject accident, are the same. From this, does it follow
that the subject accident combines with the pre-existing low
back condition to cause total and permanent disability? The
Court did not think so, and gave direction to the Commission
that if ISIF was unable to rebut Claimant’s successful
showing that he was not an odd-lot worker at the time of the
subject accident, Claimant nevertheless retains the burden of
proving all elements of ISIF’s liability.
6.
Next, we consider whether Claimant would not now be totally
and permanently disabled but for the aggravation or
acceleration of his pre-existing condition by the 2011
accident.
7. In
connection with its discussion of the evidence, the Court
offered the following observation after reviewing the records
of Dr. Verst and Dr. Jorgenson: “In spite of their
initial disagreement, both doctors ultimately agreed that an
underlying condition had been aggravated by the second injury
and that compensable surgery was appropriate.”
Aguilar, 164 Idaho at 897, 436 P.3d at 1246 (2019).
8. Per
the Court’s direction, the Commission now examines the
medical evidence on the issue of whether the subject accident
aggravated or accelerated Claimant’s pre-existing
physical impairment to cause total and permanent disability.
Attention is directed to Claimant’s L3-L4 level, the
level immediately above the L4-5 level that was injured and
surgically fused as a result of the 2006 accident. It is
worth reiterating the findings from the radiological imaging
of Claimant’s low back conducted between 2006 and 2011.
Of these studies, we said in the original decision:
13. While Claimant had several low back injuries prior to
2006, it was the 2006 accident that first led to surgical
treatment. On December 27, 2006, Claimant underwent MRI
evaluation of the lumbar spine which was read by David Giles,
M.D., as follows:
L2-3 disc space: There is reduced T2 signal intensity from
the nucleus but no other abnormality. L3-4 disc space:
Normal.
L4-5 disc space:
...
