Moser v. Rosauers Supermarkets, Inc.

443 P.3d 147, 165 Idaho 133
CourtIdaho Supreme Court
DecidedMay 15, 2019
DocketDocket No. 46004
StatusPublished
Cited by4 cases

This text of 443 P.3d 147 (Moser v. Rosauers Supermarkets, Inc.) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moser v. Rosauers Supermarkets, Inc., 443 P.3d 147, 165 Idaho 133 (Idaho 2019).

Opinion

BEVAN, Justice

I. NATURE OF THE CASE

Miranda Moser appeals an Idaho Industrial Commission ("Commission") order on her petition for declaratory ruling that considered whether an employer could compel an injured worker to attend an Idaho Code section 72-433 medical examination without first establishing that the worker is in the period of disability. The Commission held that following the claim of an accident, injury, or occupational disease, an employer may require a claimant's attendance at such a medical examination. We affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

On October 9, 2016, Moser dislocated her right shoulder when she lifted a 24-pack of soda while working as a cashier for Rosauers Supermarkets, Inc. ("Rosauers"). Rosauers accepted the claim even though Moser had a pre-existing history of recurrent instability of her right shoulder. On November 16, 2016, Moser underwent shoulder surgery. After surgery, Moser continued to suffer from "pseudosubluxation" and her surgeon, Dr. Adam Jelenek, recommended she receive a second opinion from a physician in Seattle. Rather than authorizing the request for referral, Rosauers arranged for Moser to be evaluated by Dr. Michael Ludwig who opined that Moser's shoulder dislocation likely resulted from her pre-existing condition. On September 8, 2017, Dr. Ludwig concluded that Moser had returned to her pre-injury baseline and that she did not require any further medical care. Moser was given an 11% upper extremity impairment apportioned entirely to Moser's documented pre-injury condition.

On January 3, 2018, Moser filed a workers' compensation complaint that raised these issues:

1. Entitlement to medical care;
2. Entitlement to temporary total disability;
3. Extent of permanent partial impairment;
4. Entitlement to permanent disability;
*1495. Entitlement to total permanent disability including total disability pursuant to the odd-lot doctrine;
6. Entitlement to retraining;
7. Entitlement to attorney fees for an unreasonable denial of benefits.

On January 17, 2018, Rosauers filed a notice of medical exam to be performed by Dr. Joseph Lynch on February 5, 2018. Moser responded with a letter conveying she would not be attending the medical exam. Rosauers then filed a motion for sanctions and Moser filed a motion for protective order. The Referee denied Moser's motion for protective order and ordered Moser to appear at an Idaho Code section 72-433 examination. On February 7, 2018, Rosauers filed a second notice of medical exam to be performed by Dr. Joseph Lynch on April 2, 2018.

On February 15, 2018, Moser filed a Judicial Rule of Practice and Procedure ("J.R.P.") 15 petition for a declaratory ruling. She sought an order on whether an employer could compel a claimant to attend an Idaho Code section 72-433 examination without first establishing the claimant was within her "period of disability," which she argued was limited to a period when she was actually receiving benefits. On March 21, 2018, Moser filed a notice that she would not attend the medical examination Rosauers had scheduled for April 2, 2018.

On April 4, 2018, the Commission entered an order on the petition for declaratory ruling rejecting Moser's argument that a claimant need only attend an Idaho Code section 72-433 medical examination while that injured worker is actually receiving benefits. The Commission found the statute to be ambiguous and concluded that following the claim of an accident, injury, or occupational disease, an employer may require a claimant's attendance at a medical exam. On May 3, 2018, Moser appealed the Commission's order to this Court.

III. ISSUES ON APPEAL

1. Whether Moser's appeal is proper.

2. Whether the Commission erred in concluding that Rosauers could require an Idaho Code section 72-433 medical examination without first establishing that Moser was within her period of disability.

IV. STANDARD OF REVIEW

"When this Court reviews a decision of the Industrial Commission, it exercises free review over questions of law, but reviews questions of fact only to determine whether substantial and competent evidence supports the Commission's findings." Lopez v. State, 136 Idaho 174, 176-77, 30 P.3d 952, 954-55 (2001) (citing Rivas v. K.C. Logging , 134 Idaho 603, 7 P.3d 212 (2000) ). We exercise free review over the construction of a statute. Id. at 177, 30 P.3d at 955 (citing Crawford v. Dep't of Corr., 133 Idaho 633, 991 P.2d 358 (1999) ).

V. ANALYSIS

A. Moser has properly appealed the Commission's declaratory ruling.

Rosauers first raises concerns over whether Moser's appeal is proper because Moser's complaint sought additional benefits that still need to be adjudicated by the Commission. A party's ability to appeal from Commission proceedings is set forth in Idaho Appellate Rule 11, which provides that a party may appeal as a matter of right "[f]rom any final decision or order of the Industrial Commission or from any final decision or order upon rehearing or reconsideration by the administrative agency." I.A.R. 11(d)(1). Under the Commission's Judicial Rules of Practice and Procedure, after a party has filed a petition for declaratory ruling the Commission may "[i]ssue a written ruling which shall have the full force and effect of a final order or judgment." J.R.P. 15(F)(3).

Moser filed a J.R.P. 15 petition for a declaratory ruling on whether an employer can compel a claimant to attend an Idaho Code section 72-433 examination without first establishing the claimant was within her "period of disability." On April 4, 2018, the Commission entered an order which concluded that following the claim of an accident or injury an employer could require a claimant's attendance at a medical exam under Idaho Code section 72-433. Pursuant to the Judicial Rules of Practice and Procedure, such a ruling *150

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Cite This Page — Counsel Stack

Bluebook (online)
443 P.3d 147, 165 Idaho 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moser-v-rosauers-supermarkets-inc-idaho-2019.