Troutner v. Traffic Control Co.

• Decision Date: 31 March 1976
• Docket Number: No. 11903,11903
• Citation: 97 Idaho 525,547 P.2d 1130
• Parties: James H. TROUTNER, Claimant-Appellant, v. TRAFFIC CONTROL COMPANY, Employer, and Argonaut Northwest Insurance Company, Surety, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 1130

547 P.2d 1130

97 Idaho 525

James H. TROUTNER, Claimant-Appellant, v. TRAFFIC CONTROL COMPANY, Employer, and Argonaut Northwest Insurance Company, Surety, Defendants-Respondents.

No. 11903.

Supreme Court of Idaho.

March 31, 1976.

Glenn A. Coughlan, of Coughlan, Imhoff & Lynch, Boise, for claimant-appellant.

John W. Barrett, of Moffatt, Thomas, Barrett & Blanton, Boise, for defendants-respondents.

BAKES, Justice.

This is an appeal from an order of the Industrial Commission dismissing the claimant James H. Troutner's request for attorney fees incurred in the processing of his workmen's compensation claim. The motion was made pursuant to I.C. § 72-804, which reads:

'72-804. Attorney's fees-Punitive costs in certain cases.--If the commission or any court before whom any proceedings are brought under this law determines that the employer of his surety contested a claim for compensation made by an injured employee or dependent of a deceased employee without reasonable ground, or that an employer or his surety neglected or refused within a reasonable time after receipt of a written claim for compensation to pay to the injured employee or his dependents the compensation provided by law, or without reasonable grounds discontinued payment of compensation as provided by law justly due and owing to the employee or his dependents, the employer shall pay reasonable attorney fees in addition to the compensation provided by this law. In all such cases the fees of attorneys employed by injured employees or their dependents shall be fixed by the commission.'

Troutner was injured on May 5, 1972, while in the employ of Traffic Control Company, Inc., when a gust of wind blew a traffic sign onto his back. A compensation agreement between the claimant and Argonaut Insurance Company, surety for the employer Traffic Control Company, Inc., awarding Troutner temporary total disability and permanent partial disability benefits was approved by the Industrial Accident Board (predecessor to the Industrial Commission) in January, 1974. During the ensuing year, Troutner was able to work, but not full time, as a general laborer. In late 1974, his back condition worsened, and on January 2, 1975, he contacted the attorney who had handled his original claim before the Industrial Accident Board. The attorney called the Argonaut Insurance Company, and a claims examiner agreed that Troutner should be examined by the orthopedic surgeon who had treated Troutner after the accident.

As a result of an examination of Troutner on January 6, the doctor recommended that the claimant submit to a myelogram, and depending on the results, undergo surgery. The tests were scheduled for January 21, with possible surgery scheduled for January 22, 1975. This information was relayed by Troutner's attorney to Argonaut, at which time the claims examiner stated that the surety would have to obtain a statement from the claimant relating to his activities during the year 1974, and also would wait for a medical report from the examining physician. The Argonaut claims investigator was not able to meet with the claimant to obtain his statement until January 21, prior to Troutner's admission into the hospital for tests. The information received by the claims investigator at this meeting was inconclusive, according to the surety, because allegedly Troutner was unable to recall specific dates of employment and his answers were vague. Troutner gave the investigator the names of four people for whom he had worked in the previous year, but did not inform the investigator how to contact them.

The results of the myelogram performed on Troutner on January 22, 1975, indicated that surgery was necessary, and it was scheduled for the following morning. When contacted for authorization for the scheduled surgery, the claims examiner at Argonaut Insurance indicated that the insurance company could not authorize the surgery, since its investigation was incomplete and it had not yet received a report from the examining physician. The latter problem was caused by a misunderstanding in the physician's office, as they were not aware that this was a workmen's compensation claim for which a report must be prepared. Because Troutner was not able to pay for the scheduled surgery himself, the surgery was cancelled and he was discharged from the hospital.

In an effort to expedite the handling of his claim, Troutner's attorney instituted proceedings before the Industrial Commission, seeking a modification of award and requesting that the time for hearing be shortened. After several procedural difficulties concerning the setting of the hearing and subpoenaing the surety's claims examiner, the Industrial Commission set the hearing date for February 12. On February 11, however, a settlement was reached and Argonaut agreed to authorize the surgery for Troutner.

In the application for modification of award filed on January 30, Troutner requested that the Industrial Commission award him attorney fees, because the surety unreasonably contested the claim and neglected and refused to pay the compensation, citing I.C. § 72-804 as grounds for an award of attorney fees. During settlement negotiations, the parties were unable to agree on the attorney fees issue. A hearing was held before the Industrial Commission limited to that subject The Commission concluded that Argonaut had not unreasonably contested reopening the claim, nor did the surety neglect or refuse, within a reasonable time after receipt of the claim, to pay Mr. Troutner compensation. The Commission ordered the claimant's motion for attorney fees to be dismissed with prejudice. Troutner has appealed.

Appellant's primary contention before this Court is that the record does not support the findings and conclusion of the Industrial Commission that the surety acted reasonably, and he attacks the failure of the Commission to make certain findings of fact which, Troutner alleges, would have supported a conclusion that the insurance company had neglected and unreasonably delayed in its determination of his claim.

It is not the function of this Court to substitute its view of the facts for the findings of fact made by the Industrial Commission, when such findings are supported by substantial evidence. Idaho Constitution, Art. 5, § 9; I.C. §§ 72-724, 732; Christensen v. Calico Construction Co., 97 Idaho 327, 543 P.2d 1167 (1975). The record in this case indicates that on January 22, 1975, Argonaut Insurance had not been able to complete its investigation of Troutner's activities of the previous year to determine whether he had been injured while in other employment, nor had it received a report from the treating physician. Without this information, the surety could not be certain that it was bound to provide the surgical treatment to Troutner. The record supports the Industrial Commission's opinion that the reasons Argonaut was not in a position to authorize surgery on January 22, 1975, were, for the most part, not the fault of the surety. Troutner himself had been unable to provide specific information concerning his activities of the previous year, and the misunderstanding at the physician's office was not discovered until January 22. Further, there was a misunderstanding between the surety and the claimant regarding who was obligated to obtain a physician's report.

Our recent decision in Christensen v. Calico Construction Co., supra, does not alter or diminish the right of the employer or surety to investigate the claim before consenting to be obligated for the expense, under penalty of being assessed attorney fees if they do not. In the Christensen case this Court stated:

'The language in our earlier cases, . . . requiring not only notice to the employer or surety, but in addition consent from them to obtain additional or different medical treatment, appears to be an unwarranted requirement not justified by the statute.' 97 Idaho at 329, 543 P.2d at 1169.

By that statement, we meant that liability under the statute does not turn on whether or not the employer or surety has consented to or authorized the treatment; rather that liability is based upon notice by the employee and a subsequent determination that the claim was the result of an accident in covered employment and that the expenses claimed are reasonable. The above quoted language from the Christensen case was not intended to deprive the employer or surety of the opportunity to investigate the claim in order to assure itself that it was obligated by I.C. § 72-432 to provide the treatment.

In this case one year had elapsed since Argonaut had entered into the prior compensation agreement with the claimant, and claimant had been employed...