Articles Posted in Workers Compensation

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By Fred J. Lewis

La ley ha cambiado. Los trabajadores lesionados indocumentados ahora pueden obtener los beneficios discapacidad que se les pagan.

There has been a big change in Idaho law. Idaho workers’ compensation insurance companies now have to pay undocumented workers all benefits available under the Idaho Workers’ Compensation Act. In the past, undocumented workers were only entitled to be paid medical benefits to cover bills with doctors and hospitals, total temporary disability benefits, and permanent partial impairment rating benefits. The Idaho Industrial Commission had decided in the Diaz case that there was no legal labor market for undocumented workers, and they were not entitled to either permanent partial disability benefits or total and permanent disability benefits.

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By: Fred J Lewis

On January 27, 2017, the Idaho Industrial Commission held in Donald AIcher v The Idaho Industrial Special Indemnity Fund that the ISIF slipped the hook and avoided liability on yet another Total and Permanent Disability claim. The Commissioners rejected Referee Taylor’s decision and entered their own Finding of Fact Conclusions of Law and Order.

In this case the claimant contended that he was totally disabled as a result of a combination of preexisting impairments together with his last injury to his low back and that the ISIF was liable for a portion of his Total and Permanent Disability benefits. The ISIF argued that there was no combination and they had no responsibility. The Commission held that the Claimant had proven that he was totally and permanently disabled through the Odd-Lot status. The Commission held that this shifted the burden to the ISIF “to show that some kind of suitable work is regularly and continuous available to the Claimant” Carey 107 Idaho AT112, 686 P. 2d AT57. The Commission held that there was no job available for the Claimant. Therefore, the Claimant proved to the Commission that he was totally and permanently disabled percent to the Odd-Lot doctrine.

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By: Fred J. Lewis

On July 20, 2016 the Idaho Industrial Commission filed their Finding of Fact Concussions of Law and Order in Funke v Atkison Logging Company Inc. and Liberty Northwest Insurance. In this case the Claimant suffered a compensable accident which resulted in Total Permanent Disability. It left him with a burst fracture of L1, a right below knee amputation, paraplegia,  neurogenic bowl and bladder, and without sensation below the wrist.  Mr. Funke loved to deer hunt even after his Idaho Worker’s Compensation accident. He was given an ATV for mobility by Liberty. While he was deer hunting on November 18, 2009 on his ATV, he fractured his right femur while getting off of his ATV. The Surety denied the claim. While deer hunting again on his ATV on December 1, 2014 he fractured his left femur. Liberty denied both of the claims taking the position that this was a subsequent accident and not part of his Idaho Worker’s Compensation claim.

The Claimant contended at the hearing that the fractures were the direct and natural consequence of osteoporosis which arose from the Claimant’s paralysis caused by the compensable industrial accident. Two of Claimant’s treating physicians offered their medical opinions in support of the claim that the osteoporosis lead to him breaking the two femurs. The total medical bills calculated to $95,732.93.

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By Fred Lewis

It’s astounding to realize: a new report from MSNBC revealed that more Americans died as a result of workplace accidents in 2009 alone, than during the entire course of the nine-year Iraq War.

The number of people killed on the job in the United States in 2009 was 4,551. As of May 18, 2011, the number of servicemen killed in combat totaled 4,770. Nevertheless, an estimated 50,0000 people also die each year of work-related diseases such as illnesses suffered from asbestos exposure or chemical inhalation. As one MSNBC reporter put it, “it’s as if a fully loaded Boeing 737-700 crashed every day” for a year.

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By Fred J. Lewis

On December 8, 2016, the Idaho Industrial Commission filed its findings of fact, conclusions of law and order in the Wilson v. Burts Manufacture and Sales and the Idaho State Insurance Fund case. In this case, the claimant had multiple injuries and was not getting better. His treating physician sent him for an EMG or nerve conduction test. The doctor who had performed the nerve conduction test lost all of the raw data but still attempted to read the remaining information he had from the nerve conduction test several weeks later. The claimant’s treating doctor described the EMG test was done in a bizarre fashion and could not be relied upon by any of the physicians examining or rendering opinions in regard to the claimant’s medical condition.

The Idaho State Insurance Fund asked Dr. Chung, a well-known defense medical examiner, to offer opinions as to causation and further medical treatment for the claimant, Mr. Wilson. Dr. Chung relied upon the bizarre EMG test and opined that the claimant had reached maximum medical improvement and needed no further medical treatment.

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By Fred J. Lewis

On December 9, 2016, Referee Michael E. Powers submitted his decision in Walker v. Clear Springs Food Company and Liberty Northwest Insurance Corporation. The claimant in this case suffered an accident on May 25, 2004. The first hearing in this case was held on January 25, 2007. The Claimant was awarded TTD benefits, a 13% whole person PPI rating and a PPD rating of 50% inclusive of her 13% PPI rating. A second hearing was held in the claimant’s case on September 11, 2015 in relationship to the same 2004 industrial accident. On this occasion, the claimant took the position that she had become totally and permanently disabled. Her Idaho Workers’ Compensation attorney argued that her treating physician, Dr. Verst, had abandoned her by failing to respond to her attorney or the surety. The claimant requested a change of physician under Idaho Code Section 73-432 (4) (a) which provides that a claimant may petition the Commission for an order allowing a change of physician under certain circumstances.

The Commission granted the claimant’s request and Dr. Hammond, a neurologist, became the claimant’s treating physician. Dr. Hammond testified in both proceedings and supported the claimant’s position that she was totally and permanently disabled. Dr. Hammond relied upon a functional capacity evaluation or FCE completed by Dr. Bryan Wright. Dr. Hammond testified that the FCE the claimant underwent shows the maximum that she could do at the time of the FCE, not what she is capable of doing (with much less on a daily workday basis).  In other words, the FCE sets the top limits of the claimant’s abilities to lift, sit, and stand and under working conditions, the claimant’s abilities may be much less than Dr. Wright had set forth in his FCE. Dr. Hammond testified that any potential employer would need to make accommodations for the claimant’s physical restrictions, medication usage with significant side effects, and time off work as needed.

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By Fred J. Lewis

On November 23, 2016, the Idaho Industrial Commission decided to substitute their opinion for the findings of fact and conclusions of law authored by Referee Alan Taylor. The Commissioners felt compelled to do so because of the competing opinions of Terry Montague and Dr. Mary Barros-Bailey. Apparently the Commissioners believed that there was still some ambiguity over the Supreme Court’s decision in Corgatelli v. Steel West, Inc. They included the following discussion:

The workers’ compensation laws recognize a distinction between permanent impairment and permanent disability. Sund v. Gambrel, 127 Idaho 3, 896 P.2d 329 (1995); Corgatelli v. Steel West, Inc., 157 Idaho 287, 335 P.3d 1150 (2014). Quoting from Seiniger Law FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER – 25 Offices, P.A. v. State of Idaho ex rel Industrial Commission, 154 Idaho 461, 299 P.3d 773 (2013), the Corgatelli Court observed:

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By Fred J. Lewis

Idaho Code §72-602 requires that employers complete and file a first report of injury form no later than ten days from the date of the injury. It is actually a criminal act for your employer to refuse to file this form. However, before your employer is required to file the form, you obviously have to tell them about the accident. Under Idaho Code §72-701, you only have 60 days from the date of the accident or manifestation of the occupational disease to tell your employer about your injury. In Petry v. Spalding Drywall, the injured employee waited 18 months after the accident. Since the employer could not read the mind of the employee and know that he was hurt, they of course did not file the first report of injury. The claimant was denied benefits since it had been more than 1 year from the date of the accident until he told his employer about the accident and injury.

Idaho Code §72-702 states that the injured employee does not have to give actual written notice of their accident or injury. Under Idaho law it is okay if you just orally tell your employer that you had an accident and that you were injured.

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By Fred J. Lewis

Many people who are hurt on the job in Idaho find it very frustrating that the Idaho Workers’ Compensation insurance company can send them to doctors that they choose. These so called independent medical evaluations requested by your Idaho Workers’ Compensation insurance company can happen more than once during your recovery from your industrial accident. Idaho Code §72-433 gives your Idaho Workers’ Compensation insurance company the right to send you to their doctors “at reasonable times and places”. If you do not submit yourself to these so-called independent medical evaluations, or in any way obstruct the examination by the independent medical evaluator, your right to take or prosecute your Idaho Workers’ Compensation claim will be suspended until such time as you submit yourself for the independent medical evaluation pursuant to Idaho Code §72-434.

The good news is that the Idaho Industrial Commission more often than not will give greater weight to your treating doctor and his or her opinions regarding your Idaho Workers’ Compensation claim.

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By Fred J. Lewis

If you are injured on the job in the state of Idaho, you are going to have to travel to obtain treatment from various health care providers. This is expense adds to the difficulty experienced by injured employees in Idaho. The Idaho Workers’ Compensation Act and rules adopted thereunder recognize this hardship that is placed on injured Idaho workers. Any miles that you travel over 15 miles to a health care provider are reimbursed by the Idaho Workers’ Compensation insurance company at $0.555 per mile. There is a specific travel reimbursement request that you can find on the Idaho Industrial Commission website.

You can also be reimbursed for your meals if you have to travel long distances to get the medical care that you need. You need to keep receipts for these reimbursements which can be up to $30 per day in state and $46 per day out of state.

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