KEITH MAYER, Claimant,
v.
TPC HOLDINGS, INC., Employer,
and
LIBERTY NORTHWEST INSURANCE CORP., Surety, Defendants.
No. IC 2012-004576
Idaho Workers Compensation
Before the Industrial Commission of the state of Idaho
July 21, 2015
FINDINGS OF FACT, CONCLUSION OF LAW, AND ORDER AND
DISSENTING OPINION
R.D.
Maynard, Chairman
INTRODUCTION
Pursuant
to Idaho Code § 72-506, the Industrial Commission
assigned the above-entitled matter to Referee Brian Harper.
In lieu of hearing, the parties submitted the issue for
resolution on a stipulation of facts and briefing. Claimant
is represented by Michael Kessinger, Esquire, of Lewiston.
Defendants are represented by Lea Kear, Esquire, of Boise.
The matter came under advisement on March 31, 2015. Referee
Harper submitted proposed Findings of Fact, Conclusion of Law
and Recommendation for review and approval by the Commission
pursuant to Idaho Code § 72-506(2). This case raises an
issue which, at first blush, promises to yield to the clear
language of an applicable statute. However, like many good
problems, the closer one looks at it, the less it seems to
admit a simple answer.
In his
proposed Decision, Referee Harper intimated that if
unconstrained by prior decisions of the Commission, he might
be persuaded by the arguments raised by Defendants in support
of their interpretation of the provisions of Idaho Code
§ 72-431. However, Referee Harper recognized that
Martin v. Nampa Hwy. Dist., 1988 IIC 0367 (1988), is
directly on point and compels the conclusion that disability
less than total which was unspecified and unknown at the time
of claimant's death survives the claimant's death
from other causes. Accordingly, Referee Harper made a
recommendation to the Commission which is consistent with the
Commission's historic treatment of the issue in
Martin. We agree with Referee Harper that the issues
raised by Defendants are interesting and worthy of further
discussion, all with a view towards ascertaining whether
Martin was correctly decided. Therefore, we have
chosen not to adopt Referee Harper's recommended Findings
of Fact, Conclusion of Law and Recommendation, even though we
ultimately come to the same conclusion concerning the
interpretation of Idaho Code § 72-431.
ISSUE
The
sole issue to be decided is whether permanent partial
disability in excess of permanent partial impairment (PPI)
survives the death of Claimant when such death is unrelated
to the industrial injury and Claimant dies before the
existence and/or extent of such disability is determined, but
after Claimant reached maximum medical improvement (MMI) and
was assigned a PPI rating.
EVIDENCE
CONSIDERED
The
record in this matter consists of the Stipulation of Facts
and legal briefing supplied by the parties.
FINDINGS
OF FACTS
1. On
February 10, 2012, Claimant suffered a compensable industrial
accident. Following treatment, Claimant was declared
medically stable as of September 1, 2013. On October 28,
2013, Dr. Goler performed an IME at Surety's request. He
gave Claimant a 9% PPI rating.
2. On
December 18, 2013, Dr. McNulty performed an IME at
Claimant's request. He eventually assigned Claimant a 14%
PPI rating. Claimant's treating physician, Dr. Dietrich,
concurred with Dr. McNulty's 14% PPI rating. Surety
averaged the impairment awards given by Dr. McNulty and Dr.
Goler and commenced payment at the statutory rate.
3. On
March 15, 2014, Claimant died from causes unrelated to the
subject accident.
4.
Following Claimant's death, Surety continued to pay PPI
benefits until the full averaged rating, equaling $19,086.37,
was paid. This award equates to 52.5 weeks of benefits at
$363.55 per week, or 55% of the average state wage at
Claimant's year of injury.
DISCUSSION
I
5. The
parties evidently concede that should Claimant be found to be
totally and permanently disabled as a consequence of the
subject accident, Surety's obligation to pay such total
and permanent disability benefits ends with Claimant's
death, and such benefits are in no wise inheritable. The
issue before the Commission is whether, under Idaho Code
§ 72-431, a similar rule obtains in the event that
Claimant is found to be less than totally and permanently
disabled as a result of the subject accident. Claimant
contends that the provisions of Idaho Code § 72-431
clearly anticipate that an award of permanent disability less
than total, made either before or after Claimant's death,
is inheritable, while Defendants contend that the survival of
both permanent partial and permanent total disability
benefits are barred by the provisions of the statute.
Idaho
Code § 72-431 provides:
When an employee who has sustained disability compensable as
a scheduled or unscheduled permanent disability less than
total, and who has filed a valid claim in his lifetime, dies
from causes other than the injury or occupational disease
before the expiration of the compensable period specified,
the income benefits specified and unpaid at the
employee's death, whether or not accrued or due at the
time of his death, shall be paid, under an award made before
or after such death, to and for the benefit of the persons
within the classes at the time of death and in the
proportions and upon the conditions specified in this
subsection and in the order named:
(1) To the dependent widow or widower, if there is no child
under the age of eighteen (18) or child incapable of
self-support; or
(2) If there are both such a widow or widower and such a
child or children, one-half (1/2) to such widow or widower
and the other one-half (1/2) to such child or children; or
(3) If there is no widow or widower but such a child or
children, then to such child or children; or
(4) If there is no survivor in the above classes, then to the
personal representative of the decedent.
The
statute is a product of the comprehensive 1971 recodification
of the Idaho workers' compensation laws, and has no
antecedent in the prior statutory scheme. It seems
straightforward enough, specifying that if an injured worker
dies from causes unrelated to his accident or occupational
disease, his survivors will be able to recover disability
benefits payable to claimant if he is deemed to be less than
totally and permanently disabled. Implicitly, this rule does
not apply where claimant is found to be totally and
permanently disabled. This is exactly the interpretation
applied by the Commission in Martin v. Nampa Hwy.
Dist., 1988 IIC 0367 (1988). In Martin,
claimant suffered a compensable work-related injury. At some
point following her injury, she was given a PPI rating by a
physician. However, the parties never came to agreement
concerning the extent of Martin's entitlement to a PPI
award prior to her death from an unrelated cause. Nor was
there any agreement between the parties as to the extent and
degree of Martin's disability in excess of physical
impairment prior to her death. The issue before the
Commission was whether Martin's claim for permanent
partial disability benefits survived her death. Defendants
did not argue that a claim for disability over impairment is
generally barred by the statute. Rather, they argued that
since Martin's claim for permanent partial disability had
not been adjudicated at the time of her death and no award
had been entered, the claim was "unspecified" as
that term is used in the statute. Rejecting this argument,
and concluding that the claim for permanent partial
disability benefits survived Martin, the Commission stated:
The extent of a claimant's permanent partial disability
is never finally determined until there is an award of the
Commission following an evidentiary hearing or unless the
parties have reached an agreement with regard to such
permanent partial disability, reduced the agreement to
writing and had the agreement approved by the Commission.
Such approved agreement also constitutes an award of the
Commission. We note that Sec. 72-431 specifically empowers
the Commission to make an award both before and after the
death of the claimant. We therefore conclude that 72-431 does
not require that the extent of a claimant's permanent
partial disability be specified by an award prior to the
death of the claimant in order for the income benefits to
survive the death of the claimant and be distributed to
survivors. The reference in the statute to "the income
benefits specified and unpaid at the employee's
death" does not necessarily require that the benefits be
specified by award prior to the death of the claimant. The
Commission, may following the death of the
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