Culley v. Marine Co., Inc., 022317 IDWC, IC 2014-022170

• Case Date: February 23, 2017
• Court: Idaho

DENNIS CULLEY, Claimant, v. MARINE COMPANY, INC., Employer, and FEDERAL INSURANCE COMPANY, Surety, Defendants. No. IC 2014-022170 Idaho Workers Compensation Before The Industrial Commission of The State of Idaho February 23, 2017           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 Alan Taylor, who conducted a hearing in Coeur d'Alene on August 24, 2016. Claimant, Dennis Culley, was present in person and represented by Richard Whitehead, of Coeur d'Alene. Defendant Employer, Marine Company, Inc., and Defendant Surety, Federal Insurance Company, were represented by Eric S. Bailey, of Boise. The parties presented oral and documentary evidence. One post-hearing deposition was taken and briefs were later submitted. The matter came under advisement on January 13, 2017. Referee Taylor submitted proposed findings of fact and conclusions of law to the Commission for review. 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 by the Commission were narrowed at hearing and are:

1. Claimant's entitlement to retraining; and

2. The extent of Claimant's permanent partial disability in excess of impairment.

         CONTENTIONS OF THE PARTIES          The parties acknowledge that Claimant sustained an industrial accident resulting in right shoulder and cervical injuries while working for Marine Company in Harrison, Idaho. Claimant subsequently moved to St. Maries. Defendants provided medical and time loss benefits, and at the time of hearing were paying permanent impairment benefits. Claimant asserts he is entitled to permanent disability benefits of 65% in addition to his 12% permanent impairment. Defendants counter that Claimant has neglected to apply himself and earn a GED which would qualify him for employment that would nearly restore his pre-injury wage earning ability. They assert that even assuming Claimant does not obtain a GED; he would have permanent disability of approximately 34%, inclusive of his permanent impairment.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The Industrial Commission legal file;

2. The testimony of Claimant and his father Dennis W. Culley taken at the hearing on August 24, 2016;

3. Claimant's Exhibits A through U and Defendants' Exhibits 1 through 11, admitted at the hearing; and

4. The post-hearing deposition of Maria Goodwin taken by Defendants on November 7, 2016.

         All pending objections are overruled.          FINDINGS OF FACT          1. Claimant was 41 years old and resided in St. Maries at the time of the hearing. He is right-handed. Claimant was raised in Oregon where he struggled with formal education and left high school in Corvallis after the first month of his junior year, having earned only three high school credits by that time. As of the date of hearing, he had not obtained a GED.          2. After leaving high school, Claimant commenced logging in Oregon. He worked for his father and other logging businesses. Claimant started as a chaser, bucking and limbing logs. Over the course of approximately 15 years he progressed to setting chokers and pulling lines, went on to hook tending, and finally to operating a belt swing loader. Claimant worked full-time and regularly earned $17.00 to $20.00 per hour in logging.          3. Claimant struggled with methamphetamine addiction for a time and eventually moved to Idaho where he successfully completed a formal recovery program and thereafter worked in logging in Idaho. In approximately 2012, Claimant started his own tree topping and removal business in north Idaho. Although not immediately profitable due to start up costs, his business grew steadily.          4. In January 2014, during the off-season for tree removals, Claimant commenced working in Harrison for Marine Company, Inc., doing business as Harrison Dock Builders (Dock Builders). Claimant was hired as a temporary dock repairer performing all aspects of dock construction, maintenance and repair. Claimant proved his abilities and Dock Builders made his position permanent and increased his wages. By August 2014, he was earning $12.50 per hour and working full-time. Claimant enjoyed his work. On occasion he worked overtime at Dock Builders at which times he earned as much as $900.00 per week. He continued to operate his tree removal business on weekends. He also served as a volunteer firefighter with specialized training in hazmat operations, propane fires, and ice water rescue.          5. On August 5, 2014, Claimant was working from a boat for Dock Builders when he stepped onto a generator that suddenly tipped. Claimant grabbed a dock cross-member with his right hand to keep from falling and in the process wrenched his right shoulder. He noted immediate shoulder pain but completed his work day. The following day he could hardly move...