Vela v. Rosti, 112718 IDWC, IC 2012-019756

• Case Date: November 27, 2018
• Court: Idaho

TIOFOILO L. VELA, Claimant, v. SAMUEL JAMES ROSTI dba SAM ROSTI FARMS, Employer, and IDAHO STATE INSURANCE FUND, Surety, Defendants. No. IC 2012-019756 Idaho Workers Compensation Before The Industrial Commission of The State of Idaho November 27, 2018           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           Thomas E. Limbaugh, Chairman          Pursuant to Idaho Code § 72-506, the Industrial Commission assigned the above-entitled matter to Referee Douglas A. Donohue. He conducted a hearing in Boise on August 15, 2018. Claimant appeared pro se. Neil McFeeley represented Defendants. Oral and documentary evidence was admitted. When offered an opportunity to provide posthearing briefing, Claimant indicated he would submit a brief, but never did. Defendants expressed a preference to file a posthearing brief only in response if Claimant first did so. The briefing period expired on October 31, 2018. No brief from Claimant was forthcoming. This matter is now ready for decision. The undersigned Commissioners have chosen not to adopt the Referee’s recommendation and hereby issue their own findings of fact, conclusions of law and order.          ISSUES          The following issues are to be decided:          1. Whether Claimant suffered an injury caused by an accident arising out of and in the course of employment;          2. Whether the condition for which Claimant seeks benefits was caused by the alleged industrial accident;          3. Whether and to what extent Claimant is entitled to:

a) temporary disability,

b) permanent disability based upon medical factors (impairment),

c) permanent disability in excess of impairment, and

d) medical care;

         4. Whether the claim is barred by Idaho Code § 72-701;          5. Whether the claim is barred by Idaho Code §§ 72-439 or 448; and          6. Whether the claim is barred by Idaho Code § 72-706.          CONTENTIONS OF THE PARTIES          Claimant contends he suddenly developed lung problems after gassing gophers about May 2011. The condition worsened. He reported it to Employer about September 2011. He will never be able to work again.          Defendants contend Claimant has failed to present a prima facie case for entitlement to workers’ compensation benefits. He lacks competent medical evidence that the alleged incident caused his respiratory problems, and—even if it did—he failed to give timely notice of his claim and to file a timely Complaint.          EVIDENCE CONSIDERED          The record in the instant case included the following:          1. Oral testimony of Claimant and his partner Tracey Nielsen at...