Frank v. Bunker Hill Co.

• Citation: 117 Idaho 790,792 P.2d 815
• Decision Date: 24 May 1988
• Docket Number: No. 16595,16595
• Parties: Paul E. FRANK, Claimant-Appellant, v. The BUNKER HILL COMPANY, Employer, Defendant-Respondent.
• Court: United States State Supreme Court of Idaho

Page 815

792 P.2d 815

117 Idaho 790

Paul E. FRANK, Claimant-Appellant, v. The BUNKER HILL COMPANY, Employer, Defendant-Respondent.

No. 16595.

Supreme Court of Idaho.

May 24, 1988.

Addendum May 25, 1990.

John J. Rose, Jr., Wallace, for claimant-appellant.

Evans, Keane, Koontz, Boyd, Simko & Ripley, Coeur d'Alene, for defendant-respondent. William F. Boyd argued.

SHEPARD, Chief Justice.

This is an appeal by claimant from an order of the Industrial Commission which modified a previous award. The Commission had originally held that claimant was totally and permanently disabled, and its order of modification awarded only 55 percent total and permanent disability. We affirm.

On November 12, 1980, claimant was injured while employed by Bunker Hill as an underground miner. There was no question but that claimant's employment was covered by workmen's compensation.

[117 Idaho 791] Bunker Hill is a self-insured employer. Claimant had been an employee of Bunker Hill for approximately 17 years. During the previous ten months of 1980, claimant had received gross wages of approximately $27,000.00, and his wages for 1978 and 1979 were approximately $24,000.00 and $28,000.00 respectively.

At the time of his injury claimant was 35-years-old, married, with three minor children. He was born and grew up in Kellogg, Idaho, and had graduated from high school with a grade point average of 1.39. Following high school claimant spent two years in military service and then returned to Kellogg and employment at Bunker Hill. Claimant acquired no significant transferable skills in the military. Claimant's primary recreation was hunting, fishing and bowling, and he had no pre-existing physical impairments.

On the day of the accident claimant was traveling within the mine on a mine skip when a cable broke dropping claimant approximately 170 feet. Claimant was hospitalized until December 23, 1980, with severe injuries, i.e., a bursting-type fracture of the T-10 vertebrae; fracture of the left femur midshaft; compound fracture of the right tibia and fibula; fracture of the left hemopelvis including the sacroiliac joint; nasal fracture; and a deep wound of the left buttock. Some of the injuries were treated the day of the accident, and later several surgeries were performed on some of the fractures, including a spinal fusion.

Following discharge from the hospital claimant improved slowly for several months. During that time, separations of the pelvis remained and healing of the fractures progressed slowly. Later, in July 1982, an additional fracture in the right ankle was diagnosed which had resulted in damage to the cartilage and articulating surfaces together with bone spuring. In the later part of 1982 claimant experienced increasing discomfort and indicated that the pain was worsened by any physical activity.

In November of 1982 claimant's treating physician, Dr. Verhoogen, determined that claimant had reached a stable condition. Verhoogen noted that motion in claimant's left hip was decreased, as was flexion of the ankle, and that there was hyperextention of the back. Verhoogen indicated that claimant's right ankle might continue to worsen, and that the pelvic separations had not fused. Verhoogen did not rate claimant for purposes of permanent physical impairment, but opined that claimant would have difficulty returning to employment.

In February 1983, claimant was examined by a medical panel which concluded that claimant's condition was stationary and no further treatment was indicated. That panel rated claimant's total body impairment as 35 percent of the whole man. Verhoogen concurred with the 35 percent impairment rating, but indicated that the impairment rating was not indicative of claimant's overall disability.

Following a hearing, the Industrial Commission in July 1984 held that claimant should receive total temporary disability benefits from the time of the accident until March 31, 1983, and total permanent disability benefits thereafter, finding that claimant was an odd-lot worker. During that hearing various witnesses had testified that claimant was able to perform various job duties, and could be employed. Other witnesses testified that claimant would probably not be able to find employment in the regular labor market. Claimant had hoped to return to work as an underground miner, but mine closures and the area's general economic depression indicated that there was little prospect for such employment. Although claimant was furnished opportunities for a vocational retraining, he expressed little or no interest in reeducation or retraining.

In August 1984, Bunker Hill filed petitions for rehearing and for modification of award. The grounds for said petition were fraud, manifest injustice, and change in claimant's physical condition.

A hearing was held upon the petitions of Bunker Hill, and again conflicting evidence was presented. Testimony indicated that claimant had engaged in hunting and fishing and was able to drive a motor vehicle regularly. Further testimony indicated Following that hearing the Industrial Commission held claimant was impaired 35 percent of the whole man, and due to limited education, work experience, and competition in employment claimant was awarded an additional 20 percent of the whole man in consideration of the non-medical factors.

[117 Idaho 792] that although offered programs in retraining and reeducation, claimant was unrealistic and disinterested, and did not wish to participate. Witnesses testified that claimant was employable, and indicated specific jobs which claimant could perform. On the other hand, other testimony indicated the poor economic conditions in Shoshone County, that there was a lack of sedentary work available for disabled persons, and it was "nearly imossible" to place claimant in competitive employment in Shoshone County.

Claimant initially asserts that the Commission committed procedural error in acting upon Bunker Hill's various petitions for reconsideration or modification. I.C. § 72-719 provides:

Modification of awards and agreements--Grounds--Time within which made.--(1) An application made by a party in interest filed with the commission at any time within five (5) years of the date of the accident causing the injury or date of first manifestation of an occupational disease, on the ground of a change in conditions, the commission may, but not oftener than once in six (6) months, review any order, agreement or award upon any of the following grounds:

(a) Change in the nature or extent of the employee's injury or disablement; or

(b) Fraud.

(2) The commission on such review may make an award ending, diminishing or increasing the compensation previously agreed upon or awarded, subject to the maximum and minimum provided in this law, and shall make its findings of fact, rulings of law and order or award, file the same in the office of the commission, and immediately send a copy thereof to the parties.

(3) The commission, on its own motion at any time within five (5) years of the date of the accident causing the injury or date of first manifestation of an occupational disease, may review a case in order to correct a manifest injustice.

In the instant case Bunker Hill initially filed a motion for rehearing alleging lack of substantial evidence to support the initial award of the Commission, and error of law. Thereafter Bunker Hill filed a supplemental petition for rehearing and petition for modification of the original award, alleging fraud and manifest injustice. Claimant argues that since the initial decision of the Commission was rendered July 18, 1984, Bunker Hill's petition for rehearing on the basis of manifest injustice could not have been filed until the expiration of six months following the initial decision of the Commission. We disagree. It is clear that I.C. § 72-719(3) permits the Commission to review a case "at any time within five years of the date of the accident...."

Claimant next asserts that Bunker Hill failed to meet its burden of proof in the hearing upon its application for modification. It is clear that the burden of proof is upon the party moving for a change or modification of an Industrial Commission award. Howard v. Washington Water Power Company, 65 Idaho 339, 144 P.2d 210 (1943); Boshers v. Payne, 58 Idaho 109, 70 P.2d 391 (1937); Dumm v. Workmens Compensation Appeal Board, 42 Pa.Cmwlth. 594, 401 A.2d 415 (1979). Prior to 1971 the only basis for a modification of an award was "on the ground of a change in condition." See I.C. § 72-607 as it existed prior to 1971. However, the Act now in effect provides for modification of awards on the following grounds: "(1) ... (a) Change in the nature of extent of the employee's injury or disablement; or (b) Fraud," and "(3) The commission, on its own motion ... may review a case in order to correct a manifest injustice." I.C. § 72-719(1)(a), (b) and (3).

As to manifest injustice as a ground for modification, the Commission held:

Since the matter is pending before the Commission on a motion for reconsideration also, the Commission may modify its The term "manifest injustice," as a ground for reopening a workmen's compensation award, must be construed broadly. Sines v. Appel, 103 Idaho 9, 644 P.2d 331 (1982).

[117 Idaho 793] prior decision in any respect. Based upon the additional evidence received by the Commission at its hearing in April, 1985, it is concluded that it would have been a manifest injustice to the Employer to have awarded the Claimant benefits for total and permanent disability. The Findings of Fact show that the Claimant is not entitled to the award which was previously entered.

Upon the petitions for rehearing and for modification of award the Commission had before it all of the medical testimony previously introduced, indicating that claimant's condition had substantially stabilized, and without any substantial conflict that claimant's physical impairment was...