Smith v. Complete Air Mechanical, LLC, 033020 IDWC, IC 2019-006831

Case DateMarch 30, 2020
CourtIdaho
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. ...

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