DONALD AICHER, Claimant,
v.
STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant.
Nos. IC 2008-033006, IC 2009-015796 IC, 2011-000934, IC 2011-015260 IC 2011-017191
Idaho Workers Compensation
Before The Industrial Commission of The State of Idaho
January 27, 2017
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
ORDER
Thomas
E. Limbaugh, Chairman
INTRODUCTION
Pursuant
to Idaho Code § 72-506, the Industrial Commission
assigned this matter to Referee Alan Taylor, who conducted a
hearing in the above referenced consolidated cases in Idaho
Falls on January 5, 2016. Dennis R. Petersen represented
Claimant, Donald Aicher. Paul B. Rippel represented the State
of Idaho, Industrial Special Indemnity Fund
("ISIF"). Employer, First Street Welding, Inc.
("First Street"), and Surety, Idaho State Insurance
Fund, settled with Claimant pre-hearing and did not appear.
The parties presented oral and documentary evidence. After
post-hearing depositions, the parties submitted briefs. The
matter came under advisement on September 30, 2016. The
undersigned Commissioners have chosen not to adopt the
Referee's recommendation and hereby issue their own
findings of fact, conclusions of law and order.
ISSUES
The
issues to be decided according to the Notice of Hearing are
as follows: 1. Whether and to what extent Claimant is
entitled to disability in excess of impairment;
2.
Whether Claimant is totally and permanently disabled pursuant
to the odd-lot doctrine or otherwise;
3.
Whether ISIF is liable under Idaho Code § 72-332; and
4. What
the correct apportionment of ISIF liability is pursuant to
Carey v. Clearwater County Road Dept., 107
Idaho 109, 686 P.2d 54 (1984).
CONTENTIONS
OF THE PARTIES
Claimant
contends that he is totally and permanently disabled as
result of a combination
of preexisting impairments together with his last injury to
his lower back that occurred on July 6, 2011, which
combination renders ISIF liable for a portion of his
disability income benefits.
ISIF
contends that it is not liable for any of Claimant's
disability because his last injury does not combine with his
preexisting impairments to render him totally and permanently
disabled.
EVIDENCE
CONSIDERED
The
record in the instant case includes the following:
1. The
Industrial Commission legal file;
2. The
testimony of Claimant taken at the hearing; 3. Joint Exhibits
A through Z and AA through RR admitted at the hearing; and
4. The
following post-hearing expert witness depositions: James H.
Bates, M.D., taken by Claimant on March 15, 2016; Gary C.
Walker, M.D., taken by Defendant on May 2, 2016; and Delyn
Porter, M.A., CRC, CWICS, taken by Claimant on June 8, 2016.
OBJECTIONS
Any
objections preserved in the depositions are overruled.
Since
2008, Claimant has suffered a number of work-related injuries
while in the employ of First Street Welding, Inc. On
September 5, 2008, Claimant suffered a low back injury. (I.C.
2008-033006). On June 17, 2009, Claimant suffered an injury
to his left hand. (I.C. 2009-015796). On December 17, 2010,
Claimant suffered an injury to his low back. (I.C.
2011-000934). On June 1, 2011, Claimant suffered an injury to
his low back. (I.C. 2011-015260). Finally, on July 6, 2011,
Claimant suffered an injury to his low back. (I.C.
2011-017191). Complaints were filed for all of the
aforementioned accidents/injuries. By Order dated September
27, 2011, these claims were consolidated for purposes of
hearing. For each of the aforementioned injuries Claimant
sought workers' compensation benefits, to include medical
and indemnity benefits. Following consolidation of the
complaints for hearing, Claimant filed a complaint against
the Industrial Special Indemnity Fund (ISIF) in which he
alleged that he suffered from various "pre-existing
conditions" which combined with his last injury of July
6, 2011, to render Claimant totally and permanently disabled.
As noted, prior to hearing Claimant reached settlement with
Employer on all claims.
FINDINGS
OF FACT
1.
Claimant. Claimant was born on July 15, 1956. He grew up in
eastern Idaho and attended high school in Idaho Falls through
the eleventh grade. After leaving high school in 1973, he
completed requirements for a GED. He completed no further
formal education. Claimant is married and has three adult
children. At the time of hearing he was 59 years old and
resided in Iona, Idaho. Tr., 26:1-27:20; Ex. II:432 (4:8-16)
(Claimant Dep. 5/21/14).
2.
Employer. At all relevant times, First Street operated a
welding and metal fabrication business located in Idaho
Falls. Norman Geib, Claimant's uncle, started the
business. Marvin Geib, Claimant's cousin, later succeeded
his uncle as the managing owner of First Street. Tr.,
29:18-30:9.
3.
Claimant's Vocational History. During high school,
Claimant worked for Hayes Construction performing general
construction labor. This employment lasted for a year and a
half. He next worked as a truck driver for Midstate
Transport, again for a year and a half. Sometime during this
same time period, he worked for Pillsbury as a grain worker
for a single harvest season. Id., 27:21-29-13.
4.
Claimant began working as a welder for First Street in 1976.
Marvin Geib hired him. The position was a full-time, heavy,
skilled labor job that required significant amounts of
bending, stretching, lifting, and crawling to complete tasks.
Claimant frequently lifted metal materials from supply trucks
that could weigh as much as 100 pounds. Having performed
chores at First Street while he was in high school, Claimant
came to the position with some initial familiarity with
welding techniques. After his formal employment began in
1976, he acquired welding training on the job and also at an
eastern Idaho vocational school for carburetor, heliarc and
aluminum/stainless steel welding techniques. Typical work
that Claimant performed for First Street was welding and
metal fabrication on tractor/trailers, tankers, garbage
trucks, irrigation equipment, and farm equipment. Tr.,
29:14-36:9.
5.
First Street had overhead hoists in the shop that employees
used to move heavy pieces of metal into place for welding or
fabrication work. Ex. II:435 (13:1-5). The use of these
lifting aids, however, did not insulate employees from heavy
lifting. Claimant testified in his first deposition in
pertinent part as follows: "You are always lifting. If
you've got – you know, you take a couple of pieces
of flat bar that might weigh 15 pounds, but you get six of
them stuck together and you've got to roll it, you're
still lifting a combination of everything put together."
Ex. II:435 (16:5-10).
6. In
the late 1980s or early 1990s, Norman Geib retired and Marvin
Geib succeeded him as the managing owner of First Street. As
part of this transition, Claimant succeeded Marvin Geib as
the shop foreman. Claimant continued to perform all of his
prior welding and metal fabrication duties, but also had the
added responsibilities of bidding jobs, performing office
work, supervising welders, and training employees. Tr.,
36:10-38:16.
7.
Claimant's career with First Street lasted approximately
36 years. He continued to work full-time in the position of
shop foreman until Marvin Geib laid him off in or about late
July 2011. Id., 66:12-23.
8.
Industrial Accidents/Injuries; Treatment. Between 1982 and
2011, Claimant sustained 23 injuries from workplace accidents
at First Street, for which he filed worker's compensation
claims. Following is a chronological list of those accidents
and injuries:
-
|
No.
|
Accident Date
|
Body Part Injured
|
|
1.
|
July 6, 1982
|
eye(s)
|
|
2.
|
January 4, 1983
|
eye(s)
|
...
