Funes v. Dairy

• Decision Date: 24 November 2010
• Docket Number: No. 35923.,35923.
• Court: Idaho Supreme Court
• Parties: Filadelfo FUNES, Claimant–Appellant, v. AARDEMA DAIRY, Employer, and State Insurance Fund, Surety, Defendants–Respondents.

150 Idaho 7

244 P.3d 151

Filadelfo FUNES, Claimant–Appellant,

v.AARDEMA DAIRY, Employer, and State Insurance Fund, Surety, Defendants–Respondents.

No. 35923.

Supreme Court of Idaho, Boise, August 2010 Term.

Nov. 24, 2010.

Greg J. Fuller, Twin Falls, for appellant.

Eberle, Berlin, Kading, Turnbow & McKlveen, Chtd., Boise, for respondents.

SUBMITTED ON THE BRIEFS

HORTON, Justice.

Mr. Filadelfo Funes (Funes) sustained an on-the-job injury in January 2005. Funes argued before the Idaho Industrial Commission (Industrial Commission or Commission) that his injuries resulted in either permanent total disability or a substantial permanent partial disability. The Industrial Commission found that Funes was not totally disabled but had suffered a 25% permanent partial disability. Funes appeals, arguing that the Industrial Commission erred in its calculation or, in the alternative, that the Industrial Commission erred in not finding Funes to be an "odd lot" worker for whom no other employment is regularly available. Aardema Dairy (Aardema), Funes' former employer, and the State Insurance Fund, Aardema's surety, seek attorney fees on appeal under Idaho Appellate Rule 11.2.¹ We affirm, but do not award attorney fees.

I. FACTUAL AND PROCEDURAL BACKGROUND

Funes was born in Honduras and moved to the United States in the late 1990s. He speaks only Spanish and does not read or write in any language. Before coming to the United States, Funes drove a taxi and truck. In January 2005, while working at Aardema Dairy, Funes picked up a newborn calf and injured his back. Following initial medical care, Funes was referred to Dr. David Verst for ongoing care. On May 2, 2005, Dr. Verst performed lumbar surgery. On May 19, Dr. Verst noted that Funes' neurological exam was normal and that Funes reported only mild back pain. The diminished pain continued through June 27, when Dr. Verst released Funes to return to work with restrictions.

Dr. Verst re-evaluated Funes on July 21, 2005, and Funes claimed that he was unable to return to light duty work. Funes' complaints continued through August 2005, notwithstanding the fact that the pain was not corroborated by any sign of recurrent herniation. On August 23, 2005, Dr. David Christensen conducted an MRI that resulted in Dr. Christensen's diagnosis of right sacroiliitis

or right sacroiliac joint (SI) dysfunction. Dr. Christensen felt that Funes could return to light-duty work with weight restrictions. On November 10, 2005, Funes was treated by Dr. Clinton Dillé who noted that Funes' symptoms appeared to be "greatly exaggerated." Despite Funes' continued treatment, his complaints of pain increased. Dr. Verst eventually determined that he had no additional recommendations for treatment and released Funes from his care. Dr. Verst then referred Funes to Dr. K. Cheri Wiggins who treated Funes from March 2006 to February 2007. Dr. Wiggins noted that Funes demonstrated "regionalization and pain behaviors" alongside "symptom magnification." Funes returned to Dr. Verst in March 2007, and Dr. Verst found that Funes' symptoms were greater than indicated by objective MRI findings.

On April 12, 2007, Aardema Dairy and the State Insurance Fund arranged for Funes to be evaluated in an Independent Medical Examination (IME) by a panel including orthopedic surgeon Dr. Joseph Daines, psychiatrist Dr. Eric Holt, and neurologist Dr. Richard Wilson. The IME panel determined that Funes could perform light-to-medium work activities, with lifting limited to 50 pounds occasionally and 25 pounds on a regular basis, with limited bending and stooping. Dr. Verst later responded to a questionnaire stating that he agreed with the IME's conclusions. Funes was also evaluated by neurologist Dr. Michael O'Brien on September 11, 2007. Dr. O'Brien agreed that Funes was medically stable but disagreed with previous partial permanent impairment (PPI) ratings made by Dr. Wiggins (12%) and Dr. Verst (10%). Dr. O'Brien's opinion was that Funes should receive a 20% PPI rating. Dr. Verst testified in a post-hearing deposition that, in his opinion, Funes' neck symptoms were not related to the industrial injury and that he did not see a basis for the 20% PPI rating assigned by Dr. O'Brien.

Before the Industrial Commission, Funes argued that he was medically disabled from returning to any sort of work, that his PPI was at least 10% and as high as 20%, and that his permanent partial disability (PPD) was substantially in excess of PPI. He also argued that he should be reimbursed for a variety of medical costs. The evidence considered by the Industrial Commission included testimony by Funes, exhibits submitted by Funes, exhibits submitted by Aardema Dairy and the post-hearing deposition of Dr. David Verst. The exhibits submitted by Funes included: medical records of St. Benedicts Family Medical Center; medical records and reports of St. Benedicts Family Clinic and Dr. Gary Meyers; reports of Jerome Physical Therapy and Sports Medicine; records of Drs. David Christensen, David Verst, K. Cheri Wiggins, and Michael O'Brien; Funes' 2003 and 2004 tax returns; billings by Dr. Wiggins and pharmaceutical billings for Lyrica;² the records of Mr. Greg Taylor of the Industrial Commission's Rehabilitation Division; and Funes' first, second, and third supplemental answers to Aardema's interrogatories and request for production. The exhibits submitted by Aardema included records and reports of Drs. Thomas H. Zepeda, David M. Christensen, David Verst, K. Cheri Wiggins, Clinton Dillé, and Richard Wilson, along with a radiology report from Magic Valley Regional Medical Center and a list of benefits paid.

The Industrial Commission found that Funes was entitled to $1,536.22 in unpaid medical expenses, that Aardema and the State Insurance Fund were not entitled to reimbursement for temporary disability benefits already paid, and that Funes was entitled to attorney fees for the unreasonable denial of payment of medical bills. The Industrial Commission further found that Funes was not permanently disabled "either by the 100% method or as an odd-lot worker" and was entitled to a whole person PPD of 25%. Funes filed a motion for reconsideration of the Industrial Commission's order. The Commission denied that motion on October 21, 2008. Funes now appeals.

II. STANDARD OF REVIEW

The standard of review in cases appealed from the Industrial Commission is strictly circumscribed by statute. Idaho Code § 72–732 provides that this Court may only overturn a decision of the Industrial Commission where:

(1) The commission's findings of fact are not based on any substantial competent evidence;

(2) The commission has acted without jurisdiction or in excess of its powers;

(3) The findings of fact, order or award were procured by fraud;

(4) The findings of fact do not as a matter of law support the order or award.

The standard of review based on I.C. § 72–732 has been articulated by this Court as follows:

When this Court reviews a decision of the Industrial Commission, it exercises free review over questions of law, but reviews questions of fact only to determine whether substantial and competent evidence supports the Commission's findings. Substantial and competent evidence is relevant evidence that a reasonable mind might accept to support a conclusion. Because the Commission is the fact finder, its conclusions on the credibility and weight of the evidence will not be disturbed on appeal unless they are clearly erroneous. This Court does not weigh the evidence or consider whether it would have reached a different conclusion from the evidence presented. Whether a claimant has an impairment and the degree of permanent disability resulting from an industrial injury are questions of fact.

Eacret v. Clearwater Forest Indus., 136 Idaho 733, 735, 40 P.3d 91, 93 (2002) (citations omitted) (quoted in Bradford v. Roche Moving & Storage, Inc., 147 Idaho 733, 736, 215 P.3d 453, 456 (2009) ). "Substantial evidence is more than a scintilla of proof, but less than a preponderance. It is relevant evidence that a reasonable mind might accept to support a conclusion." Jensen v. City of Pocatello, 135 Idaho 406, 412, 18 P.3d 211, 217 (2000) (quoting Zapata v. J.R. Simplot Co., 132 Idaho 513, 515, 975 P.2d 1178, 1180 (1999) ).

III. ANALYSIS

A. The Industrial Commission's determination that Funes suffered a 25% partial permanent disability is supported by substantial and competent evidence.

Assessment of disability under Idaho worker's compensation law is calculated according to the following factors. "Permanent impairment" is the "anatomic or functional abnormality or loss after maximal medical rehabilitation has been achieved and which abnormality or loss, medically, is considered stable or nonprogressive at the time of evaluation." I.C. § 72–422. A degree of permanent disability is calculated based on the extent to which "the actual or presumed ability to engage in gainful activity is reduced or absent because of permanent impairment and no fundamental or marked change in the future can be reasonably expected." I.C. § 72–423. "Total and permanent disability may be proven either by showing that the claimant's permanent impairment together with nonmedical factors totals 100% or by showing that the claimant fits within the definition of an odd-lot worker." Christensen v. S.L. Start & Assoc., Inc., 147 Idaho 289, 292, 207 P.3d 1020, 1023 (2009) (citing Jarvis v. Rexburg Nursing Ctr., 136 Idaho 579, 583–84, 38 P.3d 617, 621–22 (2001) ).

Funes makes two arguments disputing the Industrial Commission's finding of a 25% permanent partial disability.³ First, he argues that the finding of a 25% PPD ignored Dr. Verst's finding that Mr. Funes' "job opportunities are very limited because of his lack of education, inability to speak English and work history focused on labor." Second, Funes argues that despite a finding of "symptom exaggeration" by the Industrial Commission, the Commission otherwise ignored any finding of chronic...