DIANNA LUBOW, Claimant,
v.
GENTLE TOUCH HOME HEALTH CARE, INC., Employer,
and
STATE INSURANCE FUND, Surety,
and
STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendants.
No. IC 2011-013307
Idaho Workers Compensation
Before the Industrial Commission of the state of Idaho
December 21, 2016
ORDER DENYING RECONSIDERATION
R. D.
Maynard, Chairman
This
matter is before the Idaho Industrial Commission
("Commission") on Claimant's Motion for
Reconsideration, timely filed July 21, 2016, asking the
Commission to reconsider its decision of July 14, 2016.
Defendants Gentle Touch Home Health Care, Inc.
("Employer") and the State Insurance Fund
("Surety") timely filed their Objection to
Claimant's Motion for Reconsideration on August 10, 2016.
Defendant Industrial Special Indemnity Fund
("ISIF") timely filed its Response to
Claimant's Motion for Reconsideration on August 10, 2016.
Claimant timely filed her Reply on August 19, 2016.
BACKGROUND
Claimant
suffered an accident at work on May 25, 2011 while
transferring a patient from her bed to a wheelchair. As a
result, she suffered compression fractures at L1 and L2.
Claimant contended at hearing that she is totally and
permanently disabled under the odd-lot doctrine due to a
combination of pre-existing conditions and her last
industrial accident. Defendants Employer, Surety, and ISIF
contended that the bulk of Claimant's disability came
from non-industrial medical conditions that occurred after
Claimant had reached MMI, and her pre-existing diabetic
polyneuropathy was not a subjective hindrance to her
employment and did not combine with the industrial injury to
produce total and permanent disability. The Idaho Industrial
Commission's July 14, 2016 Findings of Fact, Conclusions
of Law, Recommendation, and Order concluded that
"Claimant has failed to prove that she has incurred PPD
above her PPI as the result of her May 25, 2011 industrial
accident" and that all remaining issues are moot.
RECONSIDERATION
A
decision of the Commission, in the absence of fraud, shall be
final and conclusive as to all matters adjudicated, provided
that within 20 days from the date of the filing of the
decision, any party may move for reconsideration. Idaho Code
§ 72-718. However, "[i]t is axiomatic that a
claimant 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
reconsideration. Davidson v. H.H. Keim Co., Ltd.,
110 Idaho 758, 718 P.2d 1196 (1986). The Commission may
reverse its decision upon a motion for reconsideration, or
rehear 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.
"Substantial
and competent evidence is relevant evidence that a reasonable
mind might accept to support a conclusion." Curtis
v. M.H. King Co., 142 Idaho 383, 385, 128 P.3d 920, 922
(2005), citing Uhl v. Ballard Medical Products,
Inc., 138 Idaho 653, 657, 67 P.3d 1265, 1269 (2003). The
burden on a workers' compensation claimant is to
establish by the weight of the evidence that his injury was
the result of a compensable accident or occupational disease
to "a reasonable degree of medical probability".
Furthermore, "a worker's compensation claimant has
the burden of proving, by a preponderance of the evidence,
all facts essential to recovery." Evans v.
O'Hara's, Inc., 123 Idaho 473, 479, 849 P.2d
934, 940 (1993).
The
principal contention made by Claimant in support of her
motion for reconsideration is that the Commission erred in
failing to conduct its assessment of Claimant's loss of
ability to engage in gainful activity as of the date of
hearing. Essentially, Claimant argues that the exposure of
Employer/Surety and ISIF for disability should be based on
Claimant's medical and non-medical factors as they
existed as of the date of hearing. Therefore, in evaluating
the liability of Employer/Surety and the ISIF, the Commission
should have considered not only the permanent effects of the
accident, but also Claimant's pre-existing conditions,
including those conditions which predated Claimant's
accident but which progressively worsened through the date of
hearing. Cited in support of these propositions is the case
of Brown v. The Home Depot, 152 Idaho 605, 272 P.3d
577 (2012). According to Claimant, Brown stands for
the proposition that Claimant's loss of access to the
labor market must be assessed at the time of hearing instead
of the date of maximum medical improvement. She further
contends that Brown requires that her disability be
evaluated based on her physical condition as of the date of
hearing. Claimant misapprehends the holding of
Brown. Brown held that in order to assess
Claimant's present and probable future ability to engage
in gainful activity, the relevant labor market for evaluating
the non-medical factors under Idaho Code § 72-430 is
Claimant's labor market at the time of hearing. Nothing
in Brown requires that Defendants be charged with
responsibility for physical conditions which either predated
the accident or arose between the date of injury and the date
of hearing.
In this
case, the Referee determined that when considering the
universe of Claimant's manifold physical ailments, it is
clear that she would be totally and permanently disabled in
any labor market whether it be the one that existed
at her date of MMI or the date of hearing. Therefore, the
Referee concluded that it made more sense to evaluate
Claimant's disability as of her date of maximum medical
improvement from the effects of the subject accident in order
that the disability evaluation be conducted with only her
work-caused impairments in mind. The Referee went on to
reason that when only Claimant's accident-caused
limitations/restrictions are considered, she failed to
demonstrate any disability over and above her 7% PPI rating.
As explained below, we believe that the Referee reached the
correct result in this case albeit by a somewhat different
path than the Commission takes.
Per
Page v. McCain Foods, Inc., 145 Idaho 302, 179 P.3d
265 (2008), the apportionment of disability under both Idaho
Code § 72-406 and § 72-332 envisions a two-step
process. First, the Commission must determine Claimant's
disability from all causes combined, and second, it must then
apportion disability between the work accident and other
conditions. Here, the Commission agrees with Claimant that,
in accordance with Brown, supra, there is no reason
not to apply...
