Backes v. Dependable Fabrication, Inc., 020516 IDWC, IC 2007-016312

• Case Date: February 05, 2016
• Court: Idaho

JOEL BACKES, Claimant, v. DEPENDABLE FABRICATION, INC., Employer, and STATE INSURANCE FUND, Surety, Defendants. No. IC 2007-016312 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho February 5, 2016           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           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 Coeur d'Alene on December 20, 2010. On August 11, 2011, the Commission issued its order concluding that while Claimant may have low back, neck and left shoulder problems for which he requires further medical treatment, he failed to demonstrate that the need for such care is referable to the subject accident.          On October 29, 2013, the Referee conducted another hearing in Coeur d'Alene. Claimant, Joel Backes, was present in person and represented by Starr Kelso, of Coeur d'Alene. Defendant Employer, Dependable Fabrication, Inc., and Defendant Surety, Idaho State Insurance Fund, were represented by Paul Augustine, of Boise. The parties presented oral and documentary evidence. No post-hearing depositions were taken.          Following hearing the parties engaged in negotiations and in February 2014 agreed to settle the case for a lump sum. Defendants prepared and forwarded to Claimant's Counsel settlement documents. Claimant's Counsel reviewed and executed the settlement documents; however, he urged Claimant to take the document home and think about the settlement before signing. Thereafter, Claimant's Counsel did not hear back from Clamant concerning the settlement.          On March 9, 2015, Defendants filed a motion to enforce acceptance of the settlement agreement reached by the parties. By affidavit, Claimant's Counsel averred that although Claimant initially acceded to the settlement proposal, diligent efforts to obtain his signature on the settlement documents were unsuccessful. As set forth in the affidavit, Counsel had reason to believe that his letters and messages were received by Claimant, but for reasons unexplained, Claimant declined to re-engage with his Counsel to enable finalization of the settlement.          On June 18, 2015, the Commission issued its Order Denying Defendants' Motion to Enforce Settlement. Claimant and Defendants then submitted briefs and the matter came under advisement on October 5, 2015. The Referee authored proposed findings of fact and conclusions of law for consideration by the Commission. The Commission has reviewed the Referee's recommendation, and while the Commission agrees with the ultimate outcome proposed by the Referee, the Commission disagrees with the Referee's treatment and analysis of the 2012 FCE performed by Zachary Norling, DPT. For these reasons, the Commission declines to adopt certain portions of the Referee's analysis, and substitutes these modified Findings of Fact and Conclusions of Law in lieu thereof.          ISSUES          As set forth in the March 27, 2013 notice of hearing, the following matters were scheduled for hearing at the request of the parties:

1. Whether, and to what extent, Claimant is entitled to the following benefits:

a. Medical care;

b. Temporary Partial and/or Temporary Total Disability benefits (TPD/TTD); c. Permanent Partial Impairment (PPI); and

d. Disability in excess of impairment.

2. Whether Claimant's condition is due in whole or in part to a subsequent injury/condition.

3. Whether Claimant is entitled to permanent total disability pursuant to the odd-lot doctrine or otherwise.

         At hearing, these issues were revised following discussion with the parties as follows:

Referee Taylor: So the issues, then, that remain for consideration today would be permanent partial impairment, permanent partial disability, and claimant has expressly indicated that he makes no assertion of total permanent disability. And then the question of causation apparently remains still at issue. Is that correct, Counsel?

Mr. Augustine: Correct.

Transcript, 7/23-8/5.

         Therefore, the extent and degree of Claimant's impairment/disability as well as the cause of Claimant's impairment/disability remained at issue for purposes of hearing. Addressing the 2012 FCE, Defendants have argued that the FCE failed to delineate between restrictions referable to Claimant's left wrist injury versus non-work related conditions relating to his left hip, left shoulder, neck and low back. Therefore, we perceive that the noticed issue of causation has not been abandoned by the parties, but must be considered by the Commission in this matter.          CONTENTIONS OF THE PARTIES          Claimant asserts he is entitled to permanent impairment of 1% of the whole person and permanent partial disability of 30% in addition to his impairment. He relies upon the opinion of vocational expert Dan Brownell. Defendants acknowledge that Claimant suffers permanent impairment of 1% of the whole person due to his industrial accident, but assert he has not proven entitlement to any permanent disability. They rely upon the opinion of vocational expert William Jordan.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. All evidence admitted in connection with the December 20, 2010 hearing and the Commission's August 11, 2011 Order adopting the Referee's Findings of Fact, Conclusions of Law, and Recommendation;

2. The Industrial Commission legal file;

3. The testimony of Claimant taken at the October 29, 2013 hearing;

4. Claimant's Exhibits a through i and Defendants' Exhibits I and J, admitted at the October 29, 2013 hearing; and

5. Defendants' Exhibit K, agreed to by the parties during the October 29, 2013 hearing and hereby admitted.

         Claimant's Reply Brief contains three motions to strike. Motion to Strike No. 1 requests that Defendants' briefing regarding Idaho Code § 72-223 be stricken. Inasmuch as Idaho Code § 72-713 requires "at least ten (10) days' written notice of the time and place of hearing and of the issues to be heard," and the applicability of Idaho Code § 72-223 was not requested as an issue by either party prior to hearing or listed as an issue in the Commission's notice of hearing, the Commission is precluded from presently considering this issue. Claimant's Motion to Strike No. 1 is granted.          Claimant's Motion to Strike No. 2 requests that the portion of Defendants' briefing supported only by citation to an internet website be stricken. Inasmuch as the supporting internet website was not identified as an exhibit for hearing, not admitted as an exhibit, no request was made that the Commission take notice thereof, and no witness testified as to its contents or reliability, Claimant's motion is well taken. Claimant's Motion to Strike No. 2 is granted.          Claimant's Motion to Strike No. 3 requests that the "Financial Status/Obligations" and the "Post Injury Sources of Income" sections of Defendants' Exhibit K, containing the report of vocational expert William Jordan, be stricken as not relevant to a determination of Claimant's permanent disability. Although these areas may be only minimally relevant, Claimant's financial status and post-injury sources of income may have bearing on his capacity to pursue self-employment and thus may have some relevance to his permanent disability. Claimant's Motion to Strike No. 3 is therefore denied.          After considering the above evidence and the arguments of the parties, the Commission makes the following findings of fact and conclusions of law.          FINDINGS OF FACT          1. Claimant was born in 1952 and is right-handed. He was 61 years old and lived in the Coeur d'Alene area at the time of the industrial accident herein and at the time of the 2013 hearing.          2. Claimant completed his junior year in high school but did not graduate. He received his GED in 1971 and joined the United States Army where he served as a wheeled vehicle mechanic in Vietnam. He was honorably discharged in 1977. During his service Claimant was regularly assigned to clean gore from vehicles. On one occasion he assisted in recovering a helicopter shot down in which all aboard were killed, including his roommate. Claimant's medical records document he was assigned to "picking up the pieces of the wreckage, including body parts. This detail lasted 1.5 hours, and the entire time they were very concerned about an enemy attack. In addition...