Waltman v. Associated Food Stores, Inc.

707 P.2d 384, 109 Idaho 273, 1985 Ida. LEXIS 491

• Court: Idaho Supreme Court
• Decided: June 4, 1985
• Docket: 15540
• Status: Published

Opinions

BISTLINE, Judge.

While Mr. Waltman, claimant, was employed by Associated Food Stores, Inc., he injured his right knee stepping out of a truck. Following treatment of this injury, Mr. Waltman received an impairment rating of ten percent of the leg at the knee. Based on this rating, a compensation agreement was entered into between the claimant and his employer and its surety. On February 1, 1979, the agreement was approved by the Industrial Commission. At the signing of the agreement, Mr. Waltman understood he could reopen his case within five years from the date of the accident.

Prior to the expiration of the five-year period, Mr. Waltman contacted his doctor regarding his knee injury. The doctor advised the employer’s surety that the case had been reopened. Ensuing negotiations between the claimant and the. employer’s surety failed to result in an agreement which the Commission would approve. Mr. Waltman then requested a hearing, bringing in as a party-defendant the Industrial Special Indemnity Fund, and alleging that he was totally and permanently disabled.

The Industrial Commission considered the matter as two separate proceedings: (1) a proceeding by the claimant against the employer and surety for modification of the claimant’s compensation agreement pursuant to I.C. § 72-719; and (2) a proceeding by claimant against the Industrial Special Indemnity Fund (ISIF) to secure additional compensation benefits under the provisions of I.C. § 72-332. At the hearing, testimony was received from claimant and his wife. Deposition testimony of three doctors was admitted. All three testified that Mr. Waltman was totally disabled. Two of the doctors testified that the 1976 industrial accident had aggravated Mr. Waltman’s pre-existing rheumatoid arthritis. The Commission found that that accident caused a flare-up of his pre-existing condition of rheumatoid arthritis and that it was the aggravation of this condition which caused him to become totally and permanently disabled.¹ Contemporaneously, the Commission also found claimant’s ten percent permanent physical impairment had not changed since the approval of the compensation agreement between claimant and the surety on February 1, 1979. Hence, claimant was not entitled to recover additional benefits from the employer-surety.

The Commission did conclude that claimant was not time-barred from pursuing his remedy against the ISIF under I.C. § 72-332² which provides that if the combined effects of a pre-existing impairment and a subsequent injury, or the aggravation and acceleration of a pre-existing impairment by a subsequent injury cause an employee to be totally and permanently disabled, the employer and surety are liable only for payment of compensation benefits caused by the injury, and the employee shall be compensated for the remainder of his total permanent compensation benefits by the Industrial Special Indemnity Fund. Hence, when one’s employment aggravates, accelerates or “lights up” a pre-existing disease so that total permanent disability results, the employee is entitled to one hundred percent disability benefits. Bowman v. Twin Falls Const. Co., Inc., 99 Idaho 312, 581 P.2d 770 (1978).

The Commission concluded the claimant was totally and permanently disabled as of April 3, 1981, and was entitled to permanent total disability income benefits from the ISIF commencing on that date. The ISIF’s obligation to Mr. Waltman was reduced by the permanent impairment and disability caused by the accidental injury.

The ISIF argued to the Commission on Motion for Reconsideration, and on appeal to this Court, that any claim against it was barred because Mr. Waltman did not file a claim or application for hearing against the ISIF within five years of his accident. Further, the ISIF argued that the statute of limitations provisions of I.C. § 72-706 should apply to the ISIF precluding Mr. Waltman from obtaining any income benefits from the ISIF. The Commission in denying the Motion before it stated:

Counsel for the Fund also argue that in order for the Fund to have liability, there must be a viable claim against the Employer. In the present case there was a viable claim against the Employer, and the Claimant received both medical and income benefits from the Employer in connection with the injury to his knee. The Commission’s decision of January 24 did not hold that the Claimant’s claim against the Employer and Surety was barred, but simply held that the Claimant had not established entitlement to additional benefits from the Employer and Surety.

We agree. Moreover, the Commission concluded that it was cloaked with jurisdiction where the claimant reopened his claim within the five year time limitations set forth in I.C. § 72-706. No challenge has been made to that conclusion. Because the Commission had continuing jurisdiction where the subsequent application requesting total permanent disability was made within the statutory time limits, we find the ISIF’s arguments without merit, as applied to this case. Had the claimant failed to reopen his case within the allowable time limitations, then the arguments of the ISIF might be proper.³

Similarly, where an injured claimant in the first instance fails to meet the time requirements of I.C. § 72-701, and his claims against the employer-surety are barred, then the ISIF seemingly obtains the benefit of that preclusion.⁴ However, that is not the case before us.

The decision of the Commission is affirmed. Costs to respondents.

DONALDSON, C.J., and HUNTLEY, J„ concur.

1 . The Commission adopted the findings and conclusions of the referee who conducted the hearing, therefore, we speak in terms of the Commission's decision.

2 . 72-332. Payment for second injuries from industrial special indemnity account. — (1) If an employee who has a permanent physical impairment from any cause or origin, incurs a subsequent disability by an injury or occupational disease arising out of and in the course of his employment, and by reason of the combined effects of both the pre-existing impairment and the subsequent injury or occupational disease or by reason of the aggravation and acceleration of the pre-existing impairment suffers total and permanent disability, the employer and surety shall be liable for payment of compensation benefits only for the disability caused by the injury or occupational disease, including scheduled and unscheduled permanent disabilities, and the injured employee shall be compensated for the remainder of his compensation benefits out of the industrial special indemnity account.

3 . At oral argument, counsel for the ISIF theorized that the ISIF might be pursued on a claim for total and permanent liability 20 or 25 years after the accidental injury, thus casting a tremendous difficulty on the ISIF in defending. The assertion was that the lapse of many years would present obstacles in the way of demonstrating that the then current condition was the result of the original injury rather than a pre-existing condition. Hence, so it is contended, a statute of limitations is needed to protect the ISIF from burden of proof and causation problems. However, such a case is not presently before us, and we decline the invitation to manufacture any statute of limitations other than those now in existence, of which it seems that the ISIF now has a secondary or derivative benefit — which may, over the years, afford sufficient protection.

4 . Not before us is the case where the claimant failed to reopen his claim under I.C. §§ 72-706 or 72-719 within the required time limits. Although the merits of a case of this nature were argued by counsel on appeal, we decline to address this issue until we are directly presented with the case. ISIF, after being brought in as a party-defendant, had the opportunity to join with the surety in resisting the re-opening of the case.