Bottoms v. Pioneer Irr. Dist.

• Decision Date: 29 June 1973
• Docket Number: No. 11128,11128
• Citation: 511 P.2d 304,95 Idaho 487
• Parties: Hugh BOTTOMS, Claimant-Respondent, v. PIONEER IRRIGATION DISTRICT Employer, and States Insurance Fund, Surety, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 304

511 P.2d 304

95 Idaho 487

Hugh BOTTOMS, Claimant-Respondent, v. PIONEER IRRIGATION DISTRICT Employer, and States Insurance Fund, Surety, Defendants-Appellants.

No. 11128.

Supreme Court of Idaho.

June 29, 1973.

Glenn A. Coughlan, Coughlan, Imhoff, Christensen & Lynch, Boise, for defendants-appellants.

Peter J. Boyd and Larry D. Ripley, Elam, Burke, Jeppesen, Evans & Boyd, Boise, for claimant-respondent.

BAKES, Justice.

Claimant Hugh Bottoms was employed by Pioneer Irrigation District of Caldwell as a ditch rider and maintenance man. Pioneer Irrigation District was insured under the Idaho Workmen's Compensation Law by the State Insurance Fund. On December 9, 1965, the caterpillar tractor which claimant was operating tipped over, and claimant struck his chest against the breather pipe on the hood of the tractor. Claimant went to a Dr. Paul Finck of Caldwell, Idaho, who diagnosed him as having a hiatal hernia and hospitalized claimant from December 21, 1965, until January 14, 1966. Dr. Finck referred claimant to a Dr. A. M. Palrang of Caldwell, Idaho. On January 17, 1966, Dr. Palrang performed an esophagoscopy and biopsy, vagotomy, and a pyloroplasty repair of the hiatal hernia with temporary tube gastrostomy. The initial medical expenses of diagnosis, surgery and hospitalization through March 16, 1966, were paid by the employer's surety, State Insurance Fund, sometime prior to September 21, 1966.

For the balance of 1966, and for the years 1967, 1968 and 1969, claimant received continual medical treatment for the herniated condition of his neck, those treatments, consisting primarily of dilation of the esophagus. This was necessitated because the esophagus would shrink to the point where claimant could not ingest food, and without the regular dilations claimant was unable to obtain sufficient nourishment to maintain bodily weight and health. The medical expense incident to these interim treatments was not paid by either the employer or its surety. Apparently claimant's Blue Cross insurance paid these expenses. As a result the record is devoid of any evidence of payments for medical expenses by the surety which were incurred after March of 1966, until October 26, 1970, when the surety paid certain medical expenses incident to corrective surgery in connection with the hiatal hernia which was performed in a Seattle, Washington, hospital on February 25, 1970, more than four years after the accident.

From 1966 to 1970, during the periods of disability resulting from the accident, the employer Pioneer Irrigation District maintained the claimant on its payroll at his regular salary even though during most of the time he was unable to perform his usual employment and was assigned to much lighter work, and on occasion was unable to work at all.

Claimant filed a petition for hearing with the Industrial Commission on December 28, 1969, more than four years after the date of the accident. That claim alleged that it was for 'disability for work consisting of internal injuries' and alleged that he had incurred expenses in an unknown amount for medical attendance, hospital and other services. At the time of filing the petition for hearing claimant had incurred no loss of wages because his employer had retained him on the payroll regardless of his ability to work on occasion, and, further, all of his medical expense through March, 1966, had been paid by the defendant surety, and since that time presumably by Blue Cross. As a result of these circumstances, the petition for hearing remained essentially dormant until after September 20, 1971, when the Pioneer Irrigation District terminated claimant's employment. Thereafter, on November 16, 1971, claimant through his counsel filed a motion to reopen the matter to determine temporary disability payments pending final disposition of the cause, and alleging a change of circumstances is that his employment had been terminated. Notwithstanding appellant-defendants' objection that claimant's motion to reopen was barred by the four year statute of limitations in I.C. § 72-407, the Industrial Commission granted the motion on November 24, 1971, and reopened the case concluding that the claim was not barred by the statute because the claimant was under continuous medical treatment for his condition during this period which had been paid for by the defendant insurer and because claimant's condition had not stabilized.

The Commission concluded that claimant Bottoms was totally disabled and that substantially all avenues of gainful employment were reasonably closed to him. The Commission also concluded that claimant cannot successfully compete and seek employment, and that his condition appears likely to be permanent. On May 18, 1972, the Commission entered findings of fact, conclusions of law and awarded claimant compensation for his total disability for work for an additional period not to exceed 386 weeks beginning September 20, 1971, at the basic rate of $37 per week, thereafter at the rate of $18 per week.

Appellant surety appeals to this Court alleging that the Industrial Commission erred in awarding claimant compensation because the four year statute of limitations governing this action had run and acts as a bar to this claim.

The four year statute of limitation controlling this matter was I.C. § 72-407 (see present five year limitation, I.C. 72-706) and reads in pertinent part as follows:

'Where, on account of personal injury, payments have been made and thereafter discontinued, such claimant shall have four years from the date of the accident within which to make and file with the industrial accident board an application demanding a hearing for further compensation and an award.'

The Industrial Commission concluded that Bottoms' claim was not barred by the four year statute of limitations because he was under continuous medical treatment which was paid by appellant-surety and because he received his regular salary even when he was unable to work. The Commission's Conclusion of Law V reads as follows:

'The defendants assert as an affirmative defense that the claimant's claim is barred by Section 72-407, Idaho Code. The claimant's petition for hearing was filed with the Industrial Accident Board on December 18, 1969, more than four years after the date of his accident. The Commission concludes that the claim is not barred by this section, since the claimant was under continuous medical treatment for this condition during the period which was paid by the defendant and had not reached a medically stable condition. Also, the claimant continued to receive his regular salary even when he was unable to work due to the effects of his injury. The claimant had no reason to petition for a hearing on his claim since he was receiving these benefits.'

In stating that the claimant had no reason to petition for a hearing on his claim since he was receiving these benefits the Commission was, in effect, saying that the appellants had waived the statute of limitations. This Court has had opportunity on several occasions to determine whether certain actions or conduct by the employer or surety constituted waiver of the statute of limitations. In Lindskog v. Rosebud Mines, Inc., 84 Idaho 160, 369 P.2d 580 (1962), this Court held that the four year statute of limitations was waived by the surety continuing to request medical examinations and reports, and furnishing back braces, the expenses of which were authorized and paid by the surety. The Court stated that such conduct by the surety 'could very well have led claimant to believe that the employer and the fund had not reached a final decision either as to the end of the healing period or the evaluation of permanent partial disability.' Id., at 167, 369 P.2d at 584, and held that this was evidence supporting the conclusion that the statute of limitations was waived.

In Harris v. Bechtel Corporation, 74 Idaho 308, 261 P.2d 818 (1953), this Court held that continued investigation, further hospital and medical treatment and discussion as to payment, constituted a waiver as it led the claimant to believe that there would still be a chance that the surety would ultimately acknowledge liability. The Court said:

'This course of conduct was sufficient to toll the running of the limitation period, and to estop the employer and surety from claiming the bar of the statute. (Omitting citations).' Id. at 312, 261 P.2d at 820.

In Frisbie v. Sunshine Mining Company, 93 Idaho 169, 457 P.2d 408 (1969), this Court reversed an order and remanded for hearing on the question pertaining to waiver. Speaking for a unanimous court, Mr. Chief Justice McFadden said:

'It has been held, however, that the various time limitations for giving notice and filing claims under the Workmen's Compensation Law are merely statutes of limitations which may be waived by the action of the employer or surety where such action could have led the claimant to believe that his request for compensation was still under consideration by the employer. (Omitting citations). The record in the present case reveals that prior to the expiration of the one year time period for filing appellant's claim, the appellant and respondent became engaged in consultations and negotiations concerning the claim. It appears that various attempts were made to arrange meetings between appellant and various company officers and finally a settlement offer was made in July, 1967. Possibly these negotiations might have led appellant to believe that no final decision on his claim had been made by the company and that it was not yet necessary to...