JOHN W. JORDAN, Claimant,
v.
HECLA MINING COMPANY, Employer,
and
ZURICH AMERICAN INSURANCE COMPANY, Surety, Defendants.
No. IC 2012-027819
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
December 11, 2020
ORDER
GRANTING RECONSIDERATION IN PART AND DENYING RECONSIDERATION
IN PART
On
September 24, 2020, Defendants filed a timely motion for
reconsideration with supporting brief. On September 4, 2020,
the Commission entered its order (“Order”) which
approved, confirmed, and adopted the Referee’s proposed
findings of fact and conclusion of law
(“Findings”) as its own. Defendants argue that
the Commission erred in three respects: (1) by awarding
Claimant TTD benefits between November 9, 2012 –
December 21, 2012 because Claimant did not request time loss
benefits for this period and was working for Employer during
said period; (2) by ignoring Defendant’s argument that
Claimant’s termination constitutes a
“refusal” to work pursuant to Idaho Code §
72-403; and (3) by finding that Defendant’s vocational
expert, Mr. William Jordan, did not disagree with Mr. Fred
Cutler’s conclusion that it would be futile for
Claimant to work under the FCE restrictions supported by Dr.
Dirks. See Defendant’s Motion for
Reconsideration, p. 2.
On
October 7, 2020, Claimant filed a response to the motion for
reconsideration. On October 16, 2020, Defendants filed a
reply brief. The Commission now enters its order on the
Motion for Reconsideration, granting said motion in part and
denying in part.
DISCUSSION
Under
Idaho Code § 72-718, a decision of the Commission, in
the absence of fraud, shall be final and conclusive as to all
matters adjudicated; provided, within twenty (20) days from
the date of filing the decision any party may move for
reconsideration or rehearing of the decision. On a motion for
reconsideration, the moving party “must present to the
Commission new reasons factually and legally to support a
hearing on her Motion for Rehearing/Reconsideration rather
than rehashing evidence previously presented.”
Curtis v. M.H. King Co., 142 Idaho 383, 388, 128
P.3d 920 (2005). On reconsideration, the Commission will
examine the evidence in the case, and determine whether the
evidence presented supports the legal conclusions. The
Commission is not compelled to make findings on the facts of
the case during a reconsideration. Davidson v. H.H. Keim
Co., Ltd., 110 Idaho 758, 718 P.2d 1196. The Commission
may reverse its decision upon a motion for reconsideration,
or rehearing of the decision in question, based on the
arguments presented, or upon its own motion, provided that it
acts within the time frame established in Idaho Code §
72-718. See Dennis v. School District No. 91, 135
Idaho 94, 15 P.3d 329 (2000) (citing Kindred v.
Amalgamated Sugar Co., 114 Idaho 284, 756 P.2d 410
(1988)).
A
motion for reconsideration must be properly supported by a
recitation of the factual findings and/or legal conclusions
with which the moving party takes issue. However, the
Commission is not inclined to re-weigh evidence and arguments
during reconsideration simply because the case was not
resolved in a party’s favor.
As
stated earlier, Defendants allege the Commission erred in
three respects. The Commission will address each argument in
the order brought up in Defendant’s Brief on
Reconsideration.
I.
TTD Benefits during the time period of November 9, 2012
– December 21, 2012
The
Commission awarded TTD benefits from November 8, 2012 to
February 23, 2014. Order ¶2; Findings ¶39. However,
the record reflects that Claimant did work for Employer for
approximately the first one-and-a-half months of this time
period: from the time when Claimant was released to
light-duty work on November 9, 2012 until he was terminated
by Employer on December 21, 2012. Tr. 128-131; 202-207.
Claimant acknowledges that between November 9, 2012 and
December 21, 2012, Claimant did receive some wages, that he
worked for Employer daily during that time period, and that
he received a paycheck. Cl.’s Response, p. 4.
Therefore, the Claimant would not be entitled to income
benefits for days actually worked during this period of time
unless partial temporary benefits income benefits are
appropriate under Idaho Code § 72-408(2).
The
Commission acknowledges that its Findings and Order should
have clarified that the award of TTD benefits to Claimant
during the time period of November 8, 2012 – February
23, 2014 is subject to any credit that Defendants are
entitled to for wages paid during that period. Per Idaho Code
§ 72-408 and rules construing the same, Claimant may be
entitled to TTD or TPD benefits, depending on the wages he
received for the period in question. The Commission directs
Defendants to provide wage information necessary to determine
Claimant’s entitlement to TTD, or TPD benefits from
November 9, 2012 through December 21, 2012. Note that per
IDAPA 17.01.01.305.11.e, TPD benefits are calculated using
the injured worker’s pay period. Should the parties be
unable to come to agreement about the time loss benefits owed
to Claimant for the period in question they may apply to the
Commission for resolution of this issue. The Motion for
Reconsideration is granted on this specific issue.
II.
Refusing Work Pursuant to Idaho Code § 72-403
Defendants
claim that the Commission erred in holding that Claimant is
entitled to benefits from December 22, 2012 through February
23, 2014 because the Commission failed to treat
Defendants’ argument that Claimant was fired for cause
unrelated to the work injury, and thereby refused to work
pursuant to Idaho Code § 72-403. The statute states the
following:
If an injured employee
...
