Green v. Roy Green, Dba St. Joes Salvage Logging, Emp'r, & Travelers Indem. Co.

• Decision Date: 26 April 2016
• Docket Number: No. 42782.,42782.
• Citation: 160 Idaho 275,371 P.3d 329
• Court: Idaho Supreme Court
• Parties: Roy GREEN, Claimant–Respondent, v. Roy GREEN, dba St. Joes Salvage Logging, Employer, and Travelers Indemnity Company, Surety, Defendants–Respondents, and State of Idaho, Industrial Special Indemnity Fund, Defendant–Appellant.

160 Idaho 275

371 P.3d 329

Roy GREEN, Claimant–Respondent,

v.Roy GREEN, dba St. Joes Salvage Logging, Employer, and Travelers Indemnity Company, Surety, Defendants–Respondents,andState of Idaho, Industrial Special Indemnity Fund, Defendant–Appellant.

No. 42782.

Supreme Court of Idaho, Boise, December 2015 Term.

April 26, 2016.

Jones, Brower & Callery, LLP, Lewiston and Mallea Law Offices, Meridian, for appellant. Kenneth Mallea argued.

Bowen & Bailey, LLP, Boise, for respondents St. Joes Salvage Logging and Travelers Indemnity Company. William Scott Wigle argued.

Starr Kelso Law Offices, Coeur d'Alene, for respondent Green.

HORTON, Justice.

The Industrial Special Indemnity Fund (ISIF) appeals a decision of the Industrial Commission in which the Commission concluded that ISIF must pay a portion of Roy Green's disability benefits because Green had a pre-existing condition. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 3, 2006, Green was logging alone when a tree that he estimates weighed 1700 pounds fell on him, striking him on his hardhat (the 2006 Accident). The accident occurred after another tree that he had just felled knocked the culpable tree loose. Green avoided being crushed only because of the presence of a nearby stump. When Green came to, he found that his legs were tingling, he had little sensation and difficulty walking. Green managed to drive to St. Maries to seek medical treatment.

After receiving treatment from various physicians and completing an Independent Medical Evaluation (IME), Green was referred to neurosurgeon Dr. Bret Dirks. Dr. Dirks diagnosed Green with a lower back injury that was directly related to the 2006 Accident. Dr. Dirks recommended surgery, and on February 21, 2007, Green underwent a bi-level lumbar fusion with decompression surgery

from L3 to L5 (the Lumbar Fusion).

Following the surgery, Green expressed concern about "right-sided neck pain that goes into the right arm and makes it feel like jelly." MRI images of Green's cervical spine taken on July 11, 2006, and May 23, 2007, showed, among other things, a bulging disk at C5–6. Dr. Dirks recommended an anterior cervical discectomy

and fusion at C5–6 with plating and cadaver bone. Dr. Dirks attributed the need for this surgery to the 2006 Accident. On July 16, 2007, Green underwent cervical fusion surgery at C5–6 (the Cervical Fusion).

On October 30, 2006, Green filed a complaint against St. Joes Salvage Logging (Employer) and Travelers Indemnity Company (Surety). Two years later, on November 6, 2008, Employer/Surety filed a complaint against ISIF. A hearing on the case began in August of 2012 before a worker's compensation referee assigned by the Commission. After the referee retired in April of 2013, the case was reassigned to the Commission.

The Commission issued a 115 page decision on January 29, 2014. The decision detailed Green's complicated medical, legal, and occupational history. The Commission found that Green had a 20% whole person permanent partial impairment (PPI) due to the Lumbar Fusion and a 25% PPI due to the Cervical Fusion resulting from the 2006 Accident. The Commission also determined Green was totally and permanently disabled under the odd-lot doctrine.

The Commission also considered whether Green had pre-existing injuries that subjected ISIF to liability. Employer/Surety's complaint against ISIF alleged Green had the following pre-existing injuries: (1) a T12–L1 fusion (the Thoracic Fusion), (2) a separation of the right shoulder, (3) bilateral carpal tunnel syndrome

, and (4) multi-level cervical and lumbar disc disease and spinal degeneration. The Commission determined that Employer/Surety had failed to establish ISIF liability for the pre-existing conditions, with the exception of the Thoracic Fusion.

Green had the Thoracic Fusion surgery in January of 2003. The injury which precipitated the surgery occurred while Green was cutting a limb off a tree. The Commission concluded that Green was "likely entitled to an impairment rating referable to the T12–L1 fusion and residuals. However, the record altogether fails to establish what that impairment might be." The Commission determined:

The Commission recognizes its authority, as discussed in Hartman v. Double L Manufacturing, 141 Idaho 456, 111 P.3d 141 (2005), to request evidence on the issue of Claimant's pre-existing thoracic spine impairment, yet we are reluctant to do so when the parties, represented by experienced counsel, had ample opportunity to marshal such evidence prior to hearing. The issue was clearly noticed and the parties are well aware of the elements required to prove and calculate ISIF liability. However, we believe the facts of this case mandate an assessment of the extent and degree of Claimant's pre-existing thoracic impairment considering the overwhelming proof that Claimant suffered from a pre-existing impairment which would impact Employer/Surety and ISIF's liability. Justice demands that we request that the parties present additional evidence of Claimant's pre-existing thoracic spine condition. As in Hartman we deem it necessary to retain jurisdiction of this matter in order to allow the parties to adduce additional evidence on the following question:

(1) What is the appropriate impairment rating for Claimant's pre-existing thoracic spine condition?

Thereafter, the parties submitted additional evidence, with Employer/Surety arguing the Thoracic Fusion resulted in a 20% PPI and ISIF arguing the Thoracic Fusion resulted in a 16% PPI. On November 26, 2014, the Commission issued its Order on ISIF Liability. The Commission found Employer/Surety's PPI rating of 20% to be more credible. Thus, the Commission determined Green's impairments totaled 65% (20% for the Lumbar Fusion, 25% for the Cervical Fusion, and 20% for the pre-existing Thoracic Fusion). Using the formula from Carey v. Clearwater Cnty. Rd. Dep't, 107 Idaho 109, 686 P.2d 54 (1984), the Commission determined Employer/Surety was responsible for 69.23% of Green's physical impairment.

Further, the Commission declined to reconsider issues that ISIF had tried to raise relating to its January 29, 2014, decision, including a challenge to the Commission's decision to retain jurisdiction. The Commission held that it could not reconsider these issues because neither party had filed a timely motion for reconsideration under Idaho Code section 72–718.

On December 23, 2014, ISIF timely appealed from the November 26, 2014 order.

II. STANDARD OF REVIEW

"When reviewing a decision by the Industrial Commission, this Court exercises free review over the Commission's conclusions of law, but will not disturb the Commission's factual findings if they are supported by substantial and competent evidence." Knowlton v. Wood River Med. Ctr., 151 Idaho 135, 140, 254 P.3d 36, 41 (2011) (citing I.C. § 72–732 ). "Substantial and competent evidence is relevant evidence that a reasonable mind might accept to support a conclusion." Uhl v. Ballard Med. Products, Inc., 138 Idaho 653, 657, 67 P.3d 1265, 1269 (2003). "The interpretation of a statute is a question of law over which this Court exercises free review." Williams v. Blue Cross of Idaho, 151 Idaho 515, 521, 260 P.3d 1186, 1192 (2011).

The Commission's decision to retain jurisdiction to allow parties to submit additional evidence is reviewed for an abuse of discretion.¹ "In determining whether the Commission has abused its discretion, this Court employs a three-part test: (1) whether the Commission correctly perceived the issue as one of discretion, (2) whether it acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it, and (3) whether it reached its decision by an exercise of reason." Super Grade, Inc. v. Idaho Dep't of Commerce & Labor, 144 Idaho 386, 390, 162 P.3d 765, 769 (2007).

III. ANALYSIS

The issues presented in this appeal are whether: (1) ISIF timely appealed, (2) the Commission abused its discretion by retaining jurisdiction, (3) the Commission erred in determining the elements of ISIF liability were established, and (4) this Court may address Employer/Surety's claim that the Commission erred by not including a 5% pre-existing lumbar impairment in addition to the 20% impairment attributed to the Thoracic Fusion. We address these issues in turn.

A. ISIF timely appealed.

Employer/Surety contends ISIF did not timely appeal from the Commission's January 29, 2014, decision that established ISIF's liability for the Thoracic Fusion. Employer/Surety contends that ISIF's appeal is timely only as it relates to the Commission's November 26, 2014, decision that determined Green's Thoracic Fusion resulted in a 20% PPI. Thus, Employer/Surety maintains that ISIF may appeal the amount of impairment for the Thoracic Fusion but not its liability.

"[W]henever the Commission explicitly retains jurisdiction over a matter, that act by its very nature infers that there is neither a final determination of the case nor a final permanent award to the employee." Reynolds v. Browning Ferris Indus., 113 Idaho 965, 969, 751 P.2d 113, 117 (1988). Here, the Commission explicitly retained jurisdiction, demonstrating that a final determination had not been made. The final decision determining the parties' rights was not entered until November 26, 2014. ISIF's notice of appeal was filed on December 23, 2014. We hold that ISIF timely appealed.²

B. The Commission did not abuse its discretion when it retained jurisdiction to conduct a supplemental hearing.

In its January 29, 2014, decision the Commission concluded that Green was "likely entitled to an impairment rating.... However, the record altogether fails to establish what that impairment might be." The Commission retained jurisdiction so that the parties could present additional evidence at a supplemental hearing so that it might determine the appropriate impairment rating for Green's pre-existing thoracic spine condition.

ISIF contends the...