Duran v. Silverwood, Inc., 100218 IDWC, IC 2011-013270

• Case Date: October 02, 2018
• Court: Idaho

ORLANDO DURAN, Claimant, v. SILVERWOOD, INC., Employer, and IDAHO STATE INSURANCE FUND, Surety, and STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendants. No. IC 2011-013270 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho October 2, 2018           ORDER DENYING DEFENDANTS’ MOTIONS TO STRIKE AND DENYING CLAIMANT’S MOTION FOR RECONSIDERATION           Thomas E. Limbaugh, Chairman.          This matter is before the Idaho Industrial Commission (“Commission”) on the July 12, 2018 filing of Claimant’s Motion for Reconsideration or Rehearing Pursuant to Idaho Code § 72-718. Claimant contemporaneously filed his Memorandum and the Affidavits of Orlando Duran and Jacqui Duran in Support of the Motion. Defendant State of Idaho Industrial Special Indemnity Fund (“ISIF”) filed its Response to Motion for Reconsideration on July 23, 2018. Defendant Silverwood and State Insurance Fund (“Employer/Surety”) filed their Objection to Claimant’s Motion for Reconsideration or Rehearing on July 27, 2018. Claimant filed his Reply Brief on August 2, 2018, and his Response to the Motions of the Employer/Surety and the ISIF to Strike the Affidavits on August 6, 2018.          The Commission filed its Findings of Fact, Conclusions of Law, and Order on June 22, 2018. It held:

1. Claimant suffered a compensable industrial injury which permanently aggravated a pre-existing degenerative condition in his right AC joint and shoulder blade area on May 25, 2011;

2. Claimant failed to show it likely that his cervical spine condition, carpal tunnel syndrome and/or a possible thoracic spine condition were also aggravated by that event;

3. Defendants failed to show the existence of a subsequent intervening cause which affected Claimant’s compensable industrial injury;

4. Claimant is entitled to temporary disability benefits from July 29, 2011 to November 10, 2011;

5. Claimant is entitled to permanent partial impairment rated at 5% of the upper extremity, and to permanent partial disability rated at 30% of the whole person, inclusive of impairment. Claimant failed to show he likely is totally and permanently disabled as an odd-lot worker;

6. Claimant’s permanent partial disability from all causes is rated at 35% with 30% apportioned to the industrial accident of May 25, 2011 and 5% to pre-existing conditions;

7. Claimant is entitled to medical care provided to the date of hearing and to future palliative physical therapy as prescribed by a physician from time to time as needed for temporary aggravations and exacerbations of his compensable condition arising from Claimant’s overuse of his right arm in his occupation;

8. Claimant failed to show he is entitled to an award of attorney fees; and

9. ISIF bears no liability.

         Claimant presents two arguments in support of reconsideration: first, after Claimant made a prima facie showing of odd lot status by the method of futility, the Commission erred by failing to conclude that Defendants did not adduce proof sufficient to rebut the prima facie showing of odd-lot status, and second, there is new evidence that Claimant’s employment at the time of hearing has since ended. A rehearing should be held in light of the new facts presented in his Affidavits if the Commission does not reconsider the record as it currently stands.          ISIF responds that Claimant has failed to present a new legal or factual basis for reconsideration and moves to strike the two affidavits Claimant submitted with his Motion; further, ISIF contends that the Commission relied on numerous factors in evaluating Claimant’s disability, not just the fact that he happened to be employed at the time of the hearing.          Defendants Employer/Surety agree that Claimant’s additional evidence should be struck as untimely under JRP 10 and respond that legal precedent requires the Commission to determine disability as of the date of the hearing, not some date after the issuance of a decision. In reply, Claimant argues that the affidavits are appropriately submitted “new evidence” in the context of a reconsideration of an error of the...