Ash v. Tyonek Native Corp., 122018 IDWC, IC 2011-004707

• Case Date: December 20, 2018
• Court: Idaho

ERVIN DANE ASH, Claimant, v. TYONEK NATIVE CORP., Employer, and THE FIRST LIBERTY INSURANCE CORP., Surety, Defendants. No. IC 2011-004707 Idaho Workers Compensation Before The Industrial Commission of The State of Idaho December 20, 2018           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           Thomas E. Limbaugh, Chairman          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Brian Harper, who conducted a hearing in Coeur d'Alene, Idaho, on September 12, 2017. Claimant was represented by Bradley Stoddard, of Coeur d'Alene. Joseph Wager, of Boise, represented Tyonek Native Corp., ("Employer"), and The First Liberty Insurance Corp., ("Surety"), Defendants at hearing.^[1] Oral and documentary evidence was admitted. Post-hearing depositions were taken and the parties submitted post-hearing briefs. The matter came under advisement on June 12, 2018. Referee Harper submitted proposed Findings of Fact, Conclusions of Law, and Order to the Commission on September 28, 2018. The Commission has carefully reviewed the proposed decision, and though in agreement with the ultimate outcome, elects to issue its own Findings of Fact, Conclusions of Law, and Order to give further treatment to the medical opinions at issue on the question of causation, the evaluation of disability, and consideration of apportionment under Idaho Code § 72-406.          ISSUES          The issues to be decided are whether and to what extent Claimant is entitled to the following benefits:

a. Medical care;

b. Temporary disability benefits, partial or total (TPD/TTD);

c. Permanent Partial Impairment (PPI);

d. Permanent Partial Disability in excess of Impairment (PPD);

e. Total Permanent Disability pursuant to the odd lot doctrine or due to 100% disability; and

f. Attorney fees.

         CONTENTIONS OF THE PARTIES          On February 11, 2011, Claimant injured his back while attempting to unload a welder. At the time, Claimant was acting within the course and scope of his employment with Employer. Defendants accepted Claimant's lumbar compression fracture claim and resultant surgery.          Claimant argues he needs a fusion surgery which Defendants refuse to authorize. Claimant is not at MMI, is currently limited to sedentary work, and without surgery is totally and permanently disabled. Claimant is entitled to temporary disability benefits until he recovers from his proposed fusion. Also, Defendants have underpaid Claimant's PPI benefits. Claimant is entitled to attorney fees.          Defendants argue Claimant reached MMI on April 5, 2012; all medical benefits and temporary disability claims thereafter should be denied. Claimant's argument for additional medical care thereafter is for conditions not causally related to the industrial accident in question. Claimant has been paid the proper measure of PPI benefits. Furthermore, he is not totally and permanently disabled, nor has he suffered a permanent disability greater than impairment. Attorney fees are not appropriate.          EVIDENCE CONSIDERED          The record in this matter consists of the following:          1. Claimant's testimony, taken at hearing;          2. Claimant's Exhibits (CE) A through 00, admitted at hearing;          3. Defendants' Exhibits (DE) 1 through 7, admitted at hearing;          4. The post-hearing deposition transcript of John McNulty, M.D., taken on November 6, 2017;          5. The post-hearing deposition transcript of Douglas Crum, taken on December 12, 2017;          6. The post-hearing deposition transcript of Jeffrey Larson, M.D., taken on January 30, 2018;          7. The post-hearing deposition transcript of Mary Barros-Bailey, Ph.D., taken on March 6, 2018; and          8. The Idaho Industrial Commission's file on this matter.          CLAIMANT'S MOTIONS TO STRIKE          At the outset, Claimant raised objections to the depositions of Dr. Larson and Dr. Barros-Bailey, moving the Commission to strike and disregard the depositions in their entireties due to an alleged lapse of procedural protocol. Specifically, counsel argued there was no notice of the depositions provided to Claimant, as required by JRP 10 (E) 1, at least ten days prior to hearing. Claimant also objected to the fact Defendants had not moved for an enlargement of time to take the depositions as per JRP 10 (E) 3. Finally, Claimant objected to the depositions because Defendants had not substantively answered discovery requiring them to identify their expert witnesses, list the subject matter on which said expert would testify, provide the substance of the facts and opinions on which the expert would testify, and list the expert's educational background and qualifications. Claimant likewise moved to exclude Dr. Barros-Bailey's CV, offered as an exhibit to the deposition, on the ground it had not been provided in response to discovery.          Defendants responded by noting that JRP 3 requires all motions not made at hearing to be made in writing and provide opposing counsel 14 days to respond, which Claimant failed to do. Also, Claimant's counsel sat quietly at hearing while the depositions in question were discussed on the record, and therefore waived any right he might have had to object. Finally, Defendants' Rule 10 disclosures listed the fact that the above-identified experts would be deposed post hearing.          With regard to Dr. Barros-Bailey's CV, since it was not produced at any point in the discovery process, it is not admitted as an exhibit to her deposition, and will not be reviewed by the undersigned. It should be noted that the Commission is very familiar with Dr. Barros-Bailey's credentials. She is a frequently-used expert and the exclusion of her CV is not a basis to diminish the weight given to her opinions, as she is a qualified expert on the subject of forensic vocational evaluation. Furthermore, she testified to her qualifications during her deposition.          Claimant's arguments in favor of striking Defendants' post-hearing depositions are not well taken. While it is true that Defendants' then-attorney Mr. Wager did not file a "place holder" Notice of Deposition ^[2], as is customary, he did file a copy of his Rule 10 disclosures which listed the experts as testifying via post-hearing deposition. Additionally, during the pre-hearing telephone conference with the Referee and counsel for the parties on August 25, 2017, the topic of post-hearing depositions was specifically addressed and defense counsel mentioned that such depositions would take place. At hearing, on the record, Defendants confirmed their intent to depose these experts and Claimant's attorney said nothing in opposition.          Attorneys practicing in Idaho should understand that "gotcha" tactics are discouraged in the workers' compensation setting. Technical objections without supporting prejudice are generally disfavored. It is not the intent of the Judicial Rules of Practice and Procedure to give attorneys a sword to use against unwary, or even sloppy opposing counsel, but to allow all parties the opportunity to move through the litigation process in an orderly fashion without undue surprise or prejudice. As shown below, Claimant was neither unduly surprised nor prejudiced by the actions of Defendants.          Claimant knew these depositions were going to take place well before the hearing, because this was revealed in Defendant's timely JRP 10(C) disclosure. While, JRP 10(E) specifies that the post hearing depositions of experts may only be taken subject to notice filed with the Commission no later than 10 days prior to hearing, thus lending technical credence to Claimant's position, we conclude that requiring compliance with the rule under these circumstances would elevate form over sensibility.          In addition, Claimant should have objected at the time of hearing when post-hearing depositions were being discussed if he felt Defendants had given inadequate notice. Failure to timely object certainly gave the appearance that Claimant had no issues with Defendants taking the depositions. The situation is analogous to a party failing to object to certain jury instructions, and then subsequently appealing their inclusion. In such circumstances our Supreme Court will not consider such untimely objections. E.g., Bolognese v. Forte, 153 Idaho 857, 292 P.3d 248 (2012). The same logic applies to Defendants' failure to move for an extension of time. As was discussed on the record, the Commission...