ROY SMITH, Claimant,
v.
COMPLETE AIR MECHANICAL, LLC, Employer,
And
IDAHO STATE INSURANCE FUND, Surety, Defendants.
No. IC 2019-006831
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
March 30, 2020
FINDINGS
OF FACT, CONCLUSIONS OF LAW, AND ORDER
Thomas
P. Baskin, Chairman
INTRODUCTION
Pursuant
to Idaho Code § 72-506, this matter was originally
assigned to Referee Alan Taylor. He disqualified himself by
order dated May 23, 2019. The Industrial Commission
reassigned this matter to Referee Brian Harper, who conducted
a hearing in Boise on October 29, 2019. Claimant appeared
pro se. Jon Bauman represented Employer and Surety.
The parties presented oral and documentary evidence at
hearing. Claimant elected to provide oral argument at hearing
in lieu of a written brief. Defendants submitted a brief.
Claimant filed a handwritten statement deemed herein as a
reply brief. As explained infra, the Commission
deems the case to have come under advisement on February 4,
2020.
Referee
Harper disqualified himself on December 3, 2019, giving as
reason his belief that his impartiality might reasonably be
questioned by Claimant, as a result of derogatory comments
made to the Referee by Claimant, and the threat of lawsuit
made both orally and in writing by Claimant. The Commission
reassigned the matter to Referee Douglas A. Donahue on
December 3, 2019. Various attempts by Referee Donahue to
reach Claimant for the purpose of scheduling a status
conference were unsuccessful. Finally, on January 21, 2020,
Referee Donahue issued a notice of status conference, to be
held February 4, 2020, and caused the same to be served to
Claimant at his last known address. Claimant did not attend
the status conference.
The
Commission is mindful of the Court’s belief that a
Referee who hears a case must be allowed to craft an opinion,
if for no other reason than to assist the Court in its review
of a “takeover” decision authored by the
Commission. Ayala v. Robert J. Meyers Farms, Inc.,
165 Idaho 355, 455 P.3d 164 (2019). Ideally, Referee Harper,
the referee who heard this case, would have issued a proposed
decision for the Commission’s acceptance or rejection.
Had the Commission crafted its own opinion, the rejected
opinion would have been available for the Court to review in
connection with any appeal of the Commission’s
decision. Any determination which could only have been made
by the person who heard the case, could then be compared to
the Commission’s treatment of that determination. Of
course, Referee Harper recused himself before crafting an
opinion. Various attempts were made to engage Claimant in a
discussion of how the case should proceed following Referee
Harper’s disqualification. Whether the case should be
tried anew, or whether the parties would consent to
submission of the record to Referee Donahue for decision, was
a discussion which never took place, because Claimant could
not be located, and left no information about how he might be
reached. Following Claimant’s failure to participate in
the February 4, 2020 status conference Referee Donahue
eventually deemed that the best course was to decide the case
based on the cold record. The Commission supports this
decision. As set forth below, a review of the record reveals
that Referee Donahue reached his decision based on the
documents and testimony in evidence. Although he (and later,
the Commission), did make a credibility determination that is
central to the issue of compensability, that credibility
determination is of the substantive variety. Accordingly,
under the circumstances of this case we find it appropriate
for the proposed decision to come to us the way it has, i.e.
without the generation of a decision authored by the Referee
who presided at hearing, and absent the agreement of Claimant
to proceed in this fashion. The Commission has reviewed the
proposed decision authored by Referee Donahue and agrees with
the outcome. However, the Commission believes different
treatment of the issues is warranted and hereby issues its
own findings of fact, conclusions of law and order.
ISSUE
The
issues to be decided according to the parties at hearing are:
1.
Whether Claimant has complied with the notice limitations set
forth in Idaho code section 72-701 through Idaho code section
72-706, and whether these limitations are tolled pursuant to
Idaho code section 72-604;
2.
Whether Claimant suffered an injury from an accident arising
out of and in the course of employment;
3.
Whether Claimant’s condition is due in whole or in part
to a subsequent injury disease or cause; and
4.
Whether and to what extent Claimant is entitled to medical
care.
CONTENTIONS
OF THE PARTIES
Claimant
contends Defendants are lying. He walked into a ladder and
chipped a tooth.
...