Woodvine v. Triangle Dairy, Inc.

• Decision Date: 07 May 1984
• Docket Number: No. 14436,14436
• Citation: 682 P.2d 1263,106 Idaho 716
• Parties: Richard L. WOODVINE, Claimant-Appellant, v. TRIANGLE DAIRY, INC., Employer, and Argonaut Northwest Insurance Company, Surety, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 1263

682 P.2d 1263

106 Idaho 716

Richard L. WOODVINE, Claimant-Appellant, v. TRIANGLE DAIRY, INC., Employer, and Argonaut Northwest Insurance Company, Surety, Defendants-Respondents.

No. 14436.

Supreme Court of Idaho.

May 7, 1984.

Rehearing Denied July 10, 1984.

Dennia Gibala, Boise, for claimant-appellant

John W. Barrett, and Michael Grover McPeek of Moffatt, Thomas, Barrett & Blanton, Chartered, Boise, for defendants-respondents.

DONALDSON, Chief Justice.

On November 14, 1974, while working for Triangle Dairy, Inc., claimant Richard Woodvine sustained a back injury. Timely notice of the injury was given to the employer. As a result of this injury, surgery was performed upon claimant on November 21, 1976. On April 28, 1977, Dr. Tregoning wrote a letter to Triangle Dairy's surety, Argonaut Northwest Insurance Company, in which he rated claimant at a medical impairment of 10%. Argonaut prepared a compensation agreement based on this rating. The agreement was signed by claimant and the Industrial Commission approved it on May 9, 1977.

On August 29, 1978, Dr. Tregoning increased claimant's rating to 15%. Argonaut prepared a second compensation agreement based on this rating which claimant signed and which was subsequently approved by the Commission on September 22, 1978.

Claimant continued to have trouble with his back and was admitted to the hospital. On October 22, 1979, Dr. Tregoning performed a spinal fusion on claimant. The doctor indicated in a letter to Argonaut that claimant's impairment rating had again increased to 20%. Argonaut prepared a third compensation agreement reflecting this increase. Claimant signed the agreement and the Commission approved it on June 19, 1980. All the medical expenses incurred by claimant from the date of the injury were paid by Argonaut. In addition, Argonaut paid claimant total temporary disability benefits from November 17, 1974, through April 28, 1977, and from October 19, 1979, through May 16, 1980.

Claimant first sought counsel on this matter in August, 1980. On September 29, 1980, claimant filed an application for hearing to request further compensation and award pursuant to I.C. § 72-706(2), or alternatively, to reopen and modify the third compensation agreement pursuant to I.C. § 72-719. Claimant alleged that he was in fact 100% disabled according to the "odd lot" doctrine. ¹ In addition, claimant contended that the third compensation agreement could be reviewed since it was based solely on an impairment rating without consideration of other non-medical factors which bear on permanent disability.

A hearing was held on March 16, 1981, after which the referee made Findings of Fact and Conclusions of Law which the Commission adopted and supplemented with additional Conclusions of Law. The referee found that claimant was indeed a member of the "odd lot" category and, therefore, totally and permanently disabled. However, the referee went on to conclude that the limitation period of I.C. § 72-706(2) was inapplicable, and that the five-year limitation period for modification of an award contained in I.C. § 72-719 had already expired. In addition, the Commission concluded that the third compensation agreement was final and conclusive as to the nature and extent of claimant's disability as it existed at the time the agreement was approved. The Commission stated that the only exception to the res judicata effect of such agreements would be in a situation where the parties and the Commission expressly reserved the determination of some particular component of permanent disability for a later date. Since that was not the case here, the Commission denied the claim for additional compensation and award. This appeal followed.

The appeal presents the following three issues: (1) Is I.C. § 72-706(2) inapplicable, and if so, had the limitation period contained in I.C. § 72-719 expired by the time claimant filed his application for hearing? (2) Is the third compensation agreement which was approved on June 19, 1980, final and conclusive regarding the nature and extent of claimant's then existing permanent disability? (3) Is the claimant entitled to attorney fees on appeal?

I.

The Industrial Commission apparently perceived that claimant's Application for Hearing was based solely on the modification provisions of I.C. § 72-719. ² Consequently, the Commission failed to consider I.C. § 72-706(2) provides as follows:

I.C. § 72-706(2) when addressing the issue of whether claimant's application was timely filed. In concluding that claimant's application was barred because it was filed after the expiration of the five-year limitation period of I.C. § 72-719, the Commission never mentioned the fact that the agreement itself was executed and approved after the expiration of this same five-year period. There is some question as to whether the act of entering into an agreement after the expiration of the modification period may constitute a waiver of that period by the employer and/or surety. We need not address that question in this case, however, because we hold that the provisions of I.C. § 72-706(2) are applicable.

"(2) When compensation discontinued. When payments of compensation have been made and thereafter discontinued, the claimant shall have five (5) years from the date of the accident causing the injury or date of first manifestation of an occupational disease, or, if compensation is discontinued more than five (5) years from the date of the accident causing the injury or the date of first manifestation of an occupational disease, within one (1) year from the date of the last payment of compensation, within which to make and file with the commission on application requesting a hearing for further compensation and award."

Following the approval of the third compensation agreement, Woodvine filed an Application for Hearing requesting further compensation on September 29, 1980. This was approximately five years and ten months following the date he was injured. Thus, Woodvine filed his application after the strict five-year period of I.C. § 72-706(2) had expired. However, that section contains an alternative period which is applicable in those cases where the payment of compensation is discontinued more than five years after the date of the injury. "Compensation" is defined in I.C. § 72-102(5) as follows: " 'Compensation' used collectively means any or all of the income benefits and the medical and related benefits and medical services." In the case at bar, Argonaut discontinued paying total temporary disability benefits on May 16, 1980--five years and six months after the date of Woodvine's injury. Thus, the alternative limitation period should be applied because these payments constitute compensation which was discontinued more than five years after the date of the injury. According to the statute, when payment of compensation is discontinued more than five years after the date of the injury, the claimant has one year following the date of the last payment in which to file an application for further compensation and award. Consequently, Woodvine had one year from May 16, 1980, within which to file his application for hearing. By filing on September 29, 1980, he was well within this one-year period and, therefore, not barred.

Respondents contend that I.C. § 72-706(2) applies only to situations where the employer/surety began to make voluntary payments and subsequently discontinued those payments. They argue that since the total temporary disability benefits were paid pursuant to the third compensation agreement, they were not voluntary payments and, therefore, I.C. § 72-706(2) is inapplicable. We disagree.

Although the third compensation agreement, approved on June 19, 1980, set out the total temporary disability payments as part of the award to which claimant was

entitled, those payments were made prior to the approval of the compensation agreement. As such, the total temporary disability payments were not paid pursuant to the approved compensation agreement. In fact, the approved compensation agreement simply reaffirmed that the payments had been made. Thus, Argonaut voluntarily made these payments and later discontinued making them, bringing this case squarely within the application of I.C. § 72-706(2). We conclude that I.C. § 72-706(2) was applicable, and that Woodvine complied with that section when he filed his Application for Hearing on September 29, 1980. Therefore, we hold that Woodvine's Application for Hearing was not barred by either I.C. § 72-719 or I.C. § 72-706(2).

II.

The Commission concluded that the third compensation agreement "is final and conclusive regarding the nature and extent of the claimant's permanent disability." Woodvine contends that this conclusion is erroneous. Woodvine argues that the third compensation agreement was final and conclusive only as to his permanent impairment because only medical factors were considered by the Commission when it approved the agreement. In order to resolve this issue, we must consider two pairs of statutes: (A) I.C. §§ 72-711 and 72-718; and, (B) I.C. §§ 72-424 and 72-425.

A) I.C. §§ 72-711 and 72-718:

I.C. § 72-711 authorizes the use of compensation agreements and provides that, upon approval of the Industrial Commission, a compensation agreement is to be considered an award for all purposes. I.C. § 72-718 provides that a decision of the Commission (after any rehearing or reconsideration), if not appealed and in the absence of fraud, is "final and conclusive as to all matters adjudicated by the commission." These two statutes provide the foundation for our analysis of the finality and conclusiveness of the third compensation agreement. (A copy of this compensation agreement has been included herein as Appendix A.)

The Commission, in support of its conclusion that the third compensation agreement was final and conclusive as to claimant's permanent disability, cited I.C. § 72-711 and stated:

"...