JOHNNIE D. DICKINSON, Claimant,
v.
ADAMS COUNTY, Employer,
and
STATE INSURANCE FUND, Surety, Defendants.
No. IC 2013-028122
Idaho Workers Compensation
Before The Industrial Commission of The State of Idaho
March 21, 2017
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
ORDER
Thomas
E. Limbaugh, Chairman
This
matter comes before the Commission for decision on the
stipulated facts and supporting exhibits jointly filed by the
parties on or about October 3, 2016. Appearing for Claimant
is Bradford S. Eidam, Esq. Appearing for Defendants is Susan
R. Veltman, Esq. The Commission has received and considered
briefing by the parties, and the matter is now ready for
decision. The following facts appear from the stipulation,
supporting exhibits and briefs of the parties.
FINDINGS
OF FACT
1.
Claimant sustained a work related accident/injury on October
22, 2013. At the time of injury his average weekly wage was
$381.75. The claim was accepted and benefit payments were
initiated, to include medical and temporary total disability
benefits. Claimant's average weekly wage yielded
temporary total disability benefits payable at 45% of the
state average weekly wage.
2.
Claimant reached maximum medical improvement on November 11,
2014. On that date Claimant was also given a 26% whole person
impairment rating, calculated at $370.70 per week for 130
weeks, or $48,191.00. By letter dated December 18, 2014,
Surety notified Claimant that temporary total disability
benefits would be curtailed, and the payment of permanent
physical impairment benefits (hereinafter referred to as
"impairment") initiated effective December 12,
2014.
3. From
December 1, 2014 through December 31, 2015 Defendants paid
impairment benefits in the amount of $20,940.14.
4. By
letter dated January 27, 2016, Surety advised Claimant of a
further change in benefit status. Surety advised Claimant
that it had decided to accept that Claimant is totally and
permanently disabled, retroactive to December 13, 2014. It
issued a check to Claimant in the amount of $17,002.35 to
cover total and permanent disability benefits for the period
December 13, 2014 through December 31, 2015 and advised
Claimant that for 2016, he would continue to receive TTD
benefits, starting at $1,413.68 per month for 2016. Finally,
the January 27, 2016 letter notified Claimant that Surety
waived any claim for setoff or reimbursement for impairment
benefits paid from December 13, 2014 through December 31,
2015.
5. Of
the 26% impairment rating given by Dr. Cox, $27,250.86
remains unpaid. After agreeing to accept Claimant's
status as a totally and permanently disabled worker, and
after initiating the payment of total and permanent
disability benefits retroactive to December 13, 2014,
Defendants refused to pay the unpaid balance of the
impairment rating.
ISSUE
6.
Defendants do not seek credit for, or reimbursement of,
impairment payments made to date in the amount of $20,949.14.
The issue before the Commission is whether
Defendants are nevertheless obligated to pay to Claimant the
sum of $27,250.86, representing the balance arguably owed on
the 26% impairment rating.
CONTENTIONS
OF THE PARTIES
7.
Claimant argues that resolution of this issue is controlled
by Corgatelli v. Steel West, Inc., 157 Idaho 287,
335 P.3d 1150 (2014). Corgatelli establishes that a
surety is not entitled to a credit for impairment paid
against a subsequent award of total and permanent disability,
since disability and impairment represent different types of
benefits to which an injured worker is entitled. Claimant
argues that from this it also follows that if impairment and
disability are separate and distinct forms of compensation,
Claimant ought to be entitled to the balance of his
impairment rating, quite apart from the fact that he is
receiving compensation for total and permanent disability.
8. In
response, Defendants argue that Claimant's entitlement to
total and permanent disability benefits is calculated
pursuant to the provisions of Idaho Code § 72-408. That
section specifies that in cases of total and permanent
disability, after an injured worker reaches medical
stability, benefits continue at the TTD rate for life. Idaho
Code § 72-408 defines the entirety of a totally and
permanently disabled worker's entitlement to income
benefits, and the statutory scheme makes no provision for the
payment of impairment to a worker so situated.
9. In
the alternative, Claimant argues if Defendants'
interpretation is adopted by the Commission, then that
interpretation can only apply on the effective date of an
order of the Industrial Commission awarding Claimant total
and permanent disability status. Claimant argues that neither
Defendants unilaterally, nor the parties by way of
stipulation can establish Claimant's total and permanent
disability without the blessing of the Industrial Commission
per Idaho Code § 72-707.
DISCUSSION
10.
Claimant argues that Corgatelli, supra,
controls the resolution of the narrow issue before the
Commission. However, as developed infra, the recent case of
Mayer v. TPC Holdings, Inc., 160 Idaho 223, 370 P.3d
738 (2016) casts some doubt on the ongoing validity of
Corgatelli's central underpinning, i.e.
impairment and disability represent different classes of
benefits, each calculated in a different fashion, and each
separately payable. Because the...
