Fonseca v. Corral Agriculture, Inc., 110812 IDWC, IC 2010-031750

• Case Date: November 08, 2012
• Court: Idaho

MARCO ANTONIO FONSECA, Claimant, v. CORRAL AGRICULTURE, INC., Employer, and STATE INSURANCE FUND, Surety, Defendants. No. IC 2010-031750 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho November 8, 2012           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           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 Boise, Idaho on January 10, and March 2, 2012. Claimant, Marco Antonio Fonseca, was present in person and represented by Richard L. Hammond, of Caldwell, Idaho. Defendant Employer, Corral Agriculture, Inc., and Defendant Surety, State Insurance Fund, were represented by Max M. Sheils, Jr., of Boise, Idaho. The parties presented oral and documentary evidence. Briefs were submitted and the matter came under advisement on July 12, 2012.          ISSUES          The issues to be decided are:

1. Whether Claimant suffered an accident in the course of his employment on or about September 10, 2010; and

2. Whether Claimant gave timely notice of any accident.

         CONTENTIONS OF THE PARTIES          Claimant asserts that he fell from a ladder and was injured while picking apples for Corral Agriculture on September 10, 2010, and that he timely reported his accident. Claimant asserts that even if notice was not timely, Defendants were not prejudiced by delayed notice. Defendants note discrepancies in Claimant's accounts of the circumstances surrounding his alleged accident and other evidence of record. Employer representatives deny Claimant timely reported any accident. Defendants contend that Claimant's assertion of an accident is not credible.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The Industrial Commission legal file;

2. The verbatim report of proceedings regarding the scheduled pre-hearing depositions of Corral Agriculture, Inc., Roberto Corral, Jorge Coronado, and Luisa Corral, dated September 1, 2011;

3. The verbatim report of proceedings regarding the scheduled pre-hearing depositions of Roberto Corral, Sr., and Luisa Corral, dated December 15, 2011;

4. The pre-hearing deposition testimony of Claimant, taken December 15, 2011;

5. The pre-hearing deposition testimony of Jorge Coronado, taken December 15, 2011;

6. Claimant's Exhibits 1 (except pp. 1, 3-10, 12, 15, and 17-20 thereof), 3-5, 6 (except pp. 51, 53-54, 63, and 67-72 thereof), 7 (except pp. 85-96 thereof), 8-10, 15, 171, 17a2, and 19-20 admitted at hearing;3

7. Defendants' Exhibits 1-3, admitted at hearing;

8. The testimony of Claimant, taken at the January 10, 2012 hearing; and

9. The testimony of Sarai Fonseca, Ana Fonseca, Roger Williamson, John Williamson, Jorge Coronado, and Roberto Corral, Jr., taken at the March 2, 2012 hearing.

         All objections posed during the pre-hearing depositions are overruled.          After having considered the above evidence and the arguments of the parties, the Referee submits the following findings of fact and conclusions of law for review by the Commission.          FINDINGS OF FACT          1. Claimant was born in 1960 and was educated in Mexico where he completed high school and four years of training to teach elementary school. He never worked as a teacher and left Mexico in approximately 1985. Claimant testified at hearing only through a Spanish interpreter.          2. Corral Agriculture, Inc., (Corral Agriculture) is a corporation owned by Roberto Corral, Sr., (Roberto), who is also its president. Corral Agriculture provided crews of laborers for various agricultural businesses. In 2010, Corral Agriculture had approximately 500 employees. Corral Agriculture employee work assignments were dynamic. Corral Agriculture's employees generally worked periodically. Turnover among work crews of employees was high. At all relevant times, Corral Agriculture was insured for its obligations under the Workers' Compensation Act by State Insurance Fund. At all relevant times, Roberto Corral, Jr., (Tito), son of Roberto Corral, Sr., was a supervisor for Corral Agriculture and supervised Jorge Coronado, who supervised a crew of Corral Agriculture employees. Coronado had worked for Corral Agriculture for approximately ten years.          3. Williamson Orchards is a fruit growing operation owned by brothers Roger and John Williamson. Roger is the president and oversees all office and paperwork regarding the business while John is the vice president and oversees all field operations, including the care of the orchards and harvesting of fruit.          4. On March 25, 2010, Claimant presented to Marjorie Humphrey, PA-C, at the Terry Reilly clinic in Nampa seeking treatment for depression. He was very depressed because he was unemployed, homeless, and estranged from his wife and son. Prozac was prescribed.          5. In September 2010, Williamson Orchards contracted with Corral Agriculture to provide laborers to pick apples. Williamson Orchards provided all step ladders required for picking apples.          6. In September 2010, Claimant worked as a laborer for Corral Agriculture, earning $8.50 per hour. He was a member of Coronado's crew. Claimant had worked for Corral Agriculture from time to time since 2009.          7. Claimant's testimony. At hearing, Claimant testified that on September 10, 2010, commencing at 8:00 a.m., he worked for Corral Agriculture picking apples at Williamson Orchards. Claimant testified that he was picking from near the top of a 10-15 foot ladder when the ladder broke and he fell, grabbing and breaking apple tree branches as he fell. Claimant testified that he fell 10-15 feet and landed on his feet, then fell to the ground on his left buttock. He noticed pain in his feet, hip, and back, extending up to his neck. He testified that five or six other Corral Agriculture employees were working near him when he fell and saw or heard him fall. He testified that he lay on the ground for approximately 30 minutes immediately after his fall. Claimant testified that one of the Williamson brothers saw him on the ground after his fall, that Claimant showed him the broken ladder, and explained that he had fallen. Claimant testified he then asked Williamson if he could work from the ground, but Williamson said no. Claimant testified that he then worked for two or three more...