JASON WELLS, Claimant,
v.
SWIFT TRANSPORTATION, Employer,
and
ACE AMERICAN INSURANCE CO., Surety, Defendants.
No. IC 2016-004292
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
December 11, 2020
ORDER
DENYING DEFENDANTS' MOTION FOR RECONSIDERATION
Defendants
filed a timely motion for reconsideration of the
Commission's Findings of Fact, Conclusions of Law, and
Recommendation ("Decision") dated October 23, 2020,
arguing that the Commission's award of Temporary Total
Disability (TTD) benefits is not supported by medical
evidence of record, and that the award of attorney fees is
likewise based on a false medical premise. Claimant filed a
timely response and asked the Commission to reconsider its
decision not to award attorney's fees on income benefits
payable to Claimant during his recovery from hip surgery, and
to also consider an award of attorney's fees on
Defendants' Motion for Reconsideration. As developed
below, the Commission denies the motions for reconsideration
and grants an award of attorney fees under Idaho Code §
72-804 for what we deem to be a challenge to the underlying
decision without reasonable grounds.
DISCUSSION
Under
Idaho Code § 72-718, a decision of the Commission, in
the absence of fraud, shall be final and conclusive as to all
matters adjudicated; provided, within twenty (20) days from
the date of filing the decision any party may move for
reconsideration or rehearing of the decision. On a motion for
reconsideration, the moving party "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 a reconsideration. Davidson v. H.H. Keim
Co., Ltd., 110 Idaho 758, 718 P.2d 1196. The Commission
may reverse its decision upon a motion for reconsideration,
or rehearing of 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.
I.
Claimant's period of recovery and entitlement to TTD
benefits
In its
Decision the Commission concluded that Claimant is entitled
to an award of TTD benefits under Idaho Code § 72-408
"from the time of his February 5, 2016 accident until
February 8, 2019 ..." Decision at p. 28. The Commission
further found that Claimant was entitled to an award of
attorney fees under Idaho Code § 72-804 for
Defendants' neglect in revisiting Claimant's
entitlement to TTD benefits following the revelation that
Claimant's initial diagnosis of left inguinal hernia was
actually the correct explanation for his persistent left
groin symptoms. Although the Commission found that Claimant
was entitled to time loss benefits during the period of his
recovery from left hip surgery, it concluded that
Defendant's refusal to pay time loss benefits for this
period (September 12, 2016 until April 26, 2017) was not
unreasonable. Accordingly, attorney fees on this period of
entitlement were not appropriate.
In
their motion Defendants first argue that it was error for the
Commission to award TTD benefits commencing February 5, 2016,
the day of the accident. Defendants assert that Claimant
worked, and was paid for, a full day's work on February
5, 2016. Therefore, his entitlement to time loss benefits
could commence no sooner than February 6, 2016. However, it
was not until February 7, 2016 that Claimant was given
restrictions by NP-C Todd Carpenter. The fact that Carpenter
did not give Claimant restrictions until February 7, 2016
derives only from the fact that Claimant was first seen on
that date. We find no basis to conclude that the need to
impose restrictions to protect Claimant from further injury
in the presence of a left inguinal hernia did not exist prior
to his examination by Carpenter. NP-C Carpenter diagnosed
Claimant with a left inguinal hernia, related it to the
subject accident and ordered restrictions referable to the
condition. It follows that those restrictions were in place
as of the date of the accident. Had Claimant broken his arm
on February 5, 2016, no one would argue that restrictions
against use of the arm, though given on February 7, did not
relate back to the moment of injury. As to the argument that
the Commission erroneously granted Claimant TTD benefits for
February 5, 2016, a day for which he was purportedly paid his
usual wages, the Commission's order specifies that
Claimant is entitled to time loss benefits "from the
time of his February 5, 2016 industrial accident"
forward. Order at p. 1. If Claimant suffered no time loss for
February 5, 2016, then no benefits are payable for that date.
Defendants
acknowledge that after several wrong paths had been explored
by Claimant's treaters and evaluators, Dr. Ludwig
correctly diagnosed Claimant as suffering from a left
inguinal hernia, causally related to the accident...
