Frank v. Bunker Hill Co.

• Decision Date: 23 November 2005
• Docket Number: No. 30719.,30719.
• Parties: Paul E. FRANK, Claimant-Appellant, v. The BUNKER HILL COMPANY, Self-Insured Employer, Defendant-Respondent, and Gulf USA Corporation and Pintlar Corporation, Interested Parties-Respondents.
• Court: Idaho Supreme Court

124 P.3d 1002

142 Idaho 126

Paul E. FRANK, Claimant-Appellant, v. The BUNKER HILL COMPANY, Self-Insured Employer, Defendant-Respondent, and Gulf USA Corporation and Pintlar Corporation, Interested Parties-Respondents.

No. 30719.

Supreme Court of Idaho, Moscow, October 2005 Term.

November 23, 2005.

John P. Rose, Jr., P.C., Kellogg, Idaho, for appellant. John P. Rose, Jr., argued.

Givens Pursley, LLP, Boise, for interested parties-respondents, Gulf USA Corporation and Pintlar corporation. J. Will Varin argued.

JONES, Justice.

The appellant, Paul E. Frank, sought to reopen his disability claim, which arose from a mining injury he sustained in 1980. Frank appeals from the Industrial Commission's dismissal based on statute of limitations grounds.

I. BACKGROUND FACTS AND PROCEDURE

Frank was injured in a mining incident in November 1980 while employed by the Bunker Hill Company (Bunker Hill). He filed a worker's compensation claim and was awarded total permanent disability in July 1984. Upon rehearing requested by Bunker Hill, the Commission modified its order in 1986, reducing the award to 55% total and permanent disability. Frank appealed to this Court, which affirmed in an opinion issued in 1988, and in an addendum to the opinion made in 1990. See Frank v. Bunker Hill Co., 117 Idaho 790, 792 P.2d 815 (1988) addendum after rehearing (1990).

On May 22, 1991, Frank filed an application for hearing requesting a redetermination of his disability rating. He claimed that his condition had deteriorated, entitling him to an award of total permanent disability. In addition, he sought a ruling allowing him to offset his incurred medical expenses against an overpayment of disability compensation. Bunker Hill had overpaid disability compensation, based on the initial total disability rating.

On June 4, 1991, Bunker Hill responded to the application for hearing, asserting that Frank's claim for additional disability benefits was barred by the statute of limitations in Idaho Code § 72-719. The parties stipulated to present the following issues for determination:

(1) Whether the Idaho Code and applicable case law bar Claimant from having a hearing to determine if he is entitled to reinstatement of total temporary income benefits, and an award of total permanent disability.

(2) Whether the Claimant is entitled to an offset for medical expenses incurred by Claimant against overpayment of disability compensation made by Employer pursuant to the Industrial Commission's prior award.

The Commission confirmed the stipulation by order filed on January 14, 1992. Bunker Hill subsequently moved to dismiss on the first issue based on the time bar in I.C. § 72-719. By order filed on July 15, 1992, the Commission granted the motion to dismiss. Frank moved for reconsideration, but the Commission denied his motion by order filed on February 22, 1993. Frank then sought to disqualify one of the commissioners, based upon a claim of conflict of interest. The commissioner filed a statement of disqualification and withdrew from further proceedings. In a subsequent status conference the referee informed the parties that these orders would not be considered binding.

Bunker Hill's attorney filed a notice of substitution of counsel on January 7, 1994. The case apparently went into hibernation for six years. The next entry in the record was on April 21, 2000, when the referee filed a notice of intent to recommend dismissal for lack of prosecution. At the oral argument on appeal, Frank's attorney asserted that he had withheld taking further action during this six-year period, based upon a demand by an attorney for Pintlar Corporation and Gulf USA Corporation (Gulf) that he acted against them at his peril since they were involved in bankruptcy proceedings and had the benefit of the automatic stay. It is not clear why this demand would have been of concern since neither entity was a party to the matter at the time (and it is not apparent that any action has ever been taken to make them parties). In any event, the case was retained and set for a status conference. Bunker Hill's attorney then moved for leave to withdraw. Such leave was granted on July 18, 2000.

Nothing more appears of record until June 6, 2002, when the referee filed another notice of intent to recommend dismissal for inaction. The notice was served on Frank's counsel and upon Bunker Limited Partnership, rather than Bunker Hill. From that point until May 9, 2003, Bunker Limited Partnership appeared in the service list and Bunker Hill did not. Frank moved to retain the case and the motion was heard on September 19, 2002. Five days later the Commission filed an order allowing Frank until January 20, 2003, to file a default, failing which the action would be dismissed. That order was served only upon Frank and Bunker Limited Partnership. Frank then filed a notice of intent to take default against Bunker Hill, Gulf and Bunker Limited Partnership. The affidavit of mailing does not indicate service upon Bunker Hill. Gulf then sought a status conference to find out why it was the subject of a proposed default. There appears to be no answer to this question in the record.

Frank again moved for entry of default against Bunker Hill on January 17, 2003, listing its address as Gulf USA Corporation. The motion was not served upon Bunker Hill. Counsel for Gulf filed a document on January 21, 2003, for the first time listing himself as attorney for both Pintlar and Gulf.¹ A status conference was held on March 31, 2003, in which the referee requested the parties to prepare an individual or joint statement defining legal/procedural issues. After having been unrepresented in the case for approximately three years, an attorney filed a statement of legal/procedural issues on behalf of Bunker Hill on May 9, 2003. On the same day, the attorney for Pintlar and Gulf filed a similar statement. Together with that statement, the attorney for Gulf and Pintlar filed an affidavit showing that those entities had filed a Chapter 11 bankruptcy proceeding, that their reorganization plan had been confirmed by the bankruptcy court, and that they had been discharged and released from all claims, except as otherwise provided in the plan. On July 28, 2003, Frank filed a motion to strike certain briefing submitted by Pintlar and Gulf based, among other things, on the contention that, "Bunker Hill Company is, and at all times has been, the defendant in this action. At no time has Pintlar or Gulf Resources been named a party to this action. At no time has Pintlar or Gulf USA has been substituted as the real party in interest." Counsel for Gulf and Pintlar responded, saying that they should not be, and did not wish to be, parties to the action but they were participating in order to defend against the notice of intent to take default which had been served on them. They urged dismissal of the action as against them.

On May 15, 2003, the Commission entered an order stating that it would consider the effect of I.C. § 72-719 on Frank's claim, reserving all other issues. On July 30, 2003, Frank filed a motion seeking an order to allow him to proceed against Bunker Hill's self-insurer's compensation bond for certain medical expenses he claimed to have incurred. Bunker Hill responded by noting that Bunker Hill's bond on file with the state treasurer had been canceled effective on March 10, 1983.

On December 12, 2003, the referee issued findings in which he determined that Frank's action was time barred under Section 72-719 and denied the motion to proceed against the bond, presumably by virtue of application of the statute of limitations. The Commission adopted the referee's findings, dismissed Frank's claim with prejudice, and declared its decision final and conclusive as to all matters adjudicated. Frank requested reconsideration asserting that the Commission had failed to rule upon the liability of "the defendant" for the continuing cost of medical care for Frank's industrial injury. Bunker Hill responded that the question of coverage of continuing medical expenses had not been decided by the Commission because it was not identified by the parties as an issue to be addressed. Gulf and Pintlar responded stating that there was nothing in the order regarding medical costs for the Commission to reconsider and that, in any event, they were not proper parties and not responsible for Frank's medical care. On March 24, 2004, the Commission filed its order denying reconsideration. Frank filed a timely appeal. Counsel for Bunker Hill filed a motion to withdraw, which was granted by this Court. On August 24, 2004, the Court entered an order prohibiting Bunker Hill from appearing further in the appeal without a subsequent court order. No such order was ever entered.

II. ISSUES

1. Whether the Commission erred in holding that I.C. § 72-719 barred Frank's claim for additional disability compensation.

2. Whether the Commission ruled on the offset issue.

3. Whether the issue of medical expenses was properly before the Commission.

4. Whether either party is entitled to attorney fees.

III. ANALYSIS

A. Standard of Review

The standard of review of an Industrial Commission decision is twofold. This Court exercises de novo review of the Commission's legal conclusions. Stewart v. Sun Valley Co., 140 Idaho 381, 384, 94 P.3d 686, 689 (2004). However, the Court will not disturb the Commission's factual findings so long as they are supported by substantial and competent evidence. I.C. § 72-732; Snyder v. Burl C. Lange, Inc., 109 Idaho 167, 169, 706 P.2d 56, 58 (1985).

B. The Industrial Commission Correctly Held That Frank's Claim For Additional Disability Compensation Was Barred By I.C. § 72-719

Frank argues that he is entitled to additional compensation and a total permanent disability rating because of his worsening condition. He contends his claim is not barred and that he has a right to pursue it under I.C. § 72-706(2) because the 1...