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.
In every ISIF cases you must show a combination between the last industrial accident and all of the preexisting-injuries result in a Total and Permanent disability of the Claimant in order to prove an ISIF liability. In order to have a viable last industrial accident that can combine with the preexisting conditions you must have an impairment rating for that last accident. The last accident also has to result in some amount of function limitation after the last injury that combined with the pre-existing restrictions to satisfy the combination element of the ISIF test. The Commission explained these two requirements in the Achier case as follows:
93. Combination. To satisfy this element, the standard is whether, but for the last industrial injury, Claimant would have been totally and permanently disabled immediately following the occurrence of that injury. This test “encompasses both the combination scenario where each element contributes to the total disability, and the case where the subsequent injury accelerates and aggravates the preexisting impairment.” Bybee v. State, Industrial Special Indemnity Fund, 129 Idaho 76, 81, 921 P.2d 1200, 1205 (1996).
94. If Claimant were to be considered permanently disabled as a result of a combination of his preexisting impairments and his final industrial injury, such a finding must necessarily rely upon the evidence of Dr. Bates. No other physician opined that Claimant had additional functional limitations after his final injury.
95. Dr. Bates assigned no permanent physical impairment as a result of Claimant’s July 6, 2011 industrial injury, because “there were no additional objective findings or things that would raise the class or grade of the impairment that he [Claimant] was given before.” Bates Dep., 16:19-23. It is difficult to comprehend how Claimant’s final industrial injury contributed to his disability or accelerated the deterioration of his lumbar spine if it did not merit an impairment rating.
Therefore, the wheels came off on the Claimant’s case when he offered no proof of any impairment rating or restrictions from his last accident. Therefore, there is no combination with his preexisting impairment ratings from his prior 22 accidents. Since there was no combination there could be no ISIF liability.
The take away from this case is that the Idaho Industrial Commission is going to absolutely require an impairment rating for the last industrial accident or there will be no ISIF liability.
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