Gomez v. Rangen's Inc.

BAKES, Justice. On June 7, 1979, Francisco Gomez, the claimant respondent, received an injury to his back in the course and scope of his employment with Rangen’s, Inc. At the time of the accident, Rangen’s, Inc., was insured by Argonaut Northwest Insurance Co., the defendant appellant in this action. Dr. Vern H. Anderson of Buhl initially examined claimant, found him to be disabled from work and referred him to Dr. Robert J. Porter, an orthopedic surgeon in Twin Falls, Idaho. Dr. Porter examined claimant on June 27, 1979, and periodically over the course of the next ten months and prescribed treatment, including medication, physical therapy, and injections. Claimant’s condition did not significantly change or improve during the course of treatment. Dr. Porter was unable to find any objective cause for claimant’s complaint, but nevertheless rated claimant’s physical injury as a permanent partial physical impairment equal to 10% of the whole man, based solely upon claimant’s subjective complaints of pain in his back. Claimant filed a claim for workmen’s compensation benefits on June 30,1979. At the hearing before the Industrial Commission on August 5, 1980, various witnesses testified, and the parties stipulated to the admission of certain medical reports. A counselor for the rehabilitation division of the Industrial Commission, Mr. Jim Spoon-er, testified concerning his efforts to obtain employment for claimant. He testified that in early 1980 he had contacted Rangen’s, Inc., which made an offer to re-employ claimant, and that Dr. Porter had given claimant a work release to perform the duties described in Rangen’s offer of employment. The job consisted of custodial duties and minor maintenance, and Mr. [338] Spooner stated that other “large operations” in the area would have had similar employment opportunities that were compatible with claimant’s physical restrictions. Mr. Spooner further testified that he had discussed the job offer and the nature of the work with claimant, who refused the job offer, stating that “he was too disabled to do that type of work.” At the conclusion of the hearing, Ran-gen’s attorney made a motion to amend the pleadings to conform to the evidence, asserting as a defense that claimant had refused suitable work and that he therefore had forfeited his right to workmen’s compensation benefits. Claimant’s counsel made no objection to the motion. The commission made no ruling upon the motion at that time. Pursuant to stipulation, a medical panel in Boise, Idaho, examined the claimant in July, 1980, and reported its findings to the Industrial Commission. The panel found no objective evidence indicating the source of claimant’s pain and gave no rating of permanent partial physical impairment. The psychiatrist on the panel, however, concluded that claimant suffered a psycho-neurotic depressive reaction from the injury and the panel gave him a rating of 5% impairment of the whole man on that basis. After all medical reports and the parties’ briefs had been submitted, the Industrial Commission issued its decision in its Findings of Fact, Conclusions of Law, and Award, filed on April 2,1981. The commission found, among other things, that Ran-gen had offered claimant a job that was compatible with the work restrictions on heavy lifting described by Dr. Porter; that the job was considered light work consisting of custodial duties and minor maintenance, at a salary that was just a few cents an hour less than he was previously receiving; that claimant was able to perform the job of custodian offered to him by Rangen’s, or other similarly light work; and that claimant was not totally and permanently disabled. In determining the extent of claimant’s disability the commission accepted Dr. Porter’s physical and partial permanent impairment rating of 10% of the whole man, and the 5% impairment rating resulting from the psycho-neurotic depressive reaction. The commission also found that non-medical factors, such as age, limited education and work experience, constituted an additional impairment of 10% of the whole man. The commission awarded claimant total temporary disability benefits for the period from June 9, 1979, to April 14, 1980, with credit for the amounts previously paid. In addition to the total temporary benefits awarded, the commission concluded that claimant suffered a permanent partial disability of 25%, as compared to the whole man, and awarded him income benefits at the statutory rate for permanent partial disability for a period of 125 weeks. Ran-gen appeals from the award. For the reasons set forth below, we reverse and remand the cause to the Industrial Commission. The findings of fact entered by the Industrial Commission that specifically relate to claimant’s impairment and disability and his capacity to perform available work, including the work offered to him by Ran-gen’s, Inc., are as follows: “V “Dr. Porter has rated the claimant’s permanent partial impairment as 10% of a whole man, due to unrelenting back pain aggravated by activity. The claimant is unable to return to any type of heavy lifting, in the opinion of Dr. Porter. The rating is based upon subjective complaints by the claimant. The claimant thereafter received a job offer from Ran-gen’s, which was compatible with the claimant’s work restrictions. The job was evaluated by a rehabilitation counsel- or of the Industrial Commission. The work was as a custodian, doing clean up and minor maintenance. The job is considered to be light work. The pay was only a few cents an hour less than the job the claimant was doing at the time of the injury. The job description was reviewed [339] and approved by Dr. Porter and the job is within the restrictions placed on the claimant by Dr. Porter. However, the claimant declined to even attempt to perform the job. The claimant has not attempted to obtain or try any employment and has not worked since his accident. The Commission finds that the claimant’s condition became stable and fixed as of April 15,1980, the date he was last examined by Dr. Porter. “VI “In July 1980, the claimant was examined by a medical panel in Boise consisting of a neurologist, an internist, a psychiatrist, and an orthopedist. The panel found that the claimant had many subjective complaints of pain for which there was no objective evidence during the physical examination. The panel found that the claimant had no evidence of significant physical limitation, and therefore gave him no rating for permanent partial impairment from a physical standpoint. The psychiatrist member of the panel believed that the claimant had a mild degree of depression, as a result of the injury, but that he did not need therapy for this problem. He estimated that the claimant had a 5% impairment of the whole man, on the basis of a psychoneurotic depressive reaction as a result of the claimant’s injury. The opinion of the panel, therefore, was that the claimant had a 5% whole man impairment on the basis of psychoneurotic reaction. “VII “The Commission concludes that the claimant’s impairment attributable to physical reasons can best be evaluated by Dr. Porter, who was the claimant’s treating physician and saw the claimant a number of times over a period of months. The Commission therefore accepts the impairment rating of Dr. Porter and finds that the claimant has a permanent physical impairment of 10% of the whole man from a physical standpoint. The Commission also finds that the claimant has an additional 5% of the whole man physical impairment on the basis of a psycho-neurotic depressive reaction. “VIII “A counselor with the Idaho Department of Employment testified on behalf of the claimant. He did not attempt to place the claimant in employment because the claimant expressed the opinion, to the counselor, that he was not able to work at all. It was the counselor’s opinion that the claimant’s age, limited education, and work experience significantly reduce the claimant’s ability to obtain and hold a job in the Twin Falls area. The Commission finds that the non-medical factors attributable to the claimant constitute a 10% of the whole man impairment, in addition to the physical and mental impairments established by the medical doctors. The Commission finds that the claimant is not totally disabled as he contends. The claimant is able to perform the job of custodian offered him by Rangen’s, or other similar light work. The Commission further finds that the claimant’s physical impairment, as determined by Dr. Porter, the claimant’s mental impairment, as evaluated by the psychiatrist, and the claimant’s disability attributable to non-medical factors, in summation, constitute a total of permanent partial disability of 25% of the whole man, which is attributable to the effects of the claimant’s injury of June 7, 1979.” Appellant relies on I.C. § 72-403 in support of its argument that, by refusing to accept the custodial position offered to him by Rangen’s, Inc., a position that the Industrial Commission specifically found claimant capable of performing, claimant forfeited his right to recover any workman’s compensation benefits. I.C. § 72-403 provides: “72-403. PENALTY FOR MALINGERING-DENIAL OF COMPENSATION.— If a partially disabled employee refuses to seek suitable work or refuses or neglects to work after suitable work is offered to, procured by or secured for him, [340] he shall not be entitled to any compensation.” The legislature enacted I.C. § 72-403 in 1971. See 1971 Idaho Sess. Laws ch. 124, § 3. Neither party, however, was able to cite, nor does our research disclose, any reported case in which I.C. § 72-403 has been interpreted or applied. The Industrial Commission failed to address the applicability of I.C. § 72-403 in its findings of fact, conclusions of law, and award. In its motion for reconsideration and supporting brief, appellant urged that I.C. § 72-403 precluded respondent’s recovery of any worker’s compensation benefits, and respondent argued to the contrary in his responding memorandum. The Industrial Commission summarily denied appellant’s motion for reconsideration without addressing the applicability of I.C. § 72-403 to respondent’s claim for benefits. Having been fully confronted with the issue of whether I.C. § 72-403 applied to bar claimant’s recovery of benefits, “it would appear that the Commission failed to fully consider its obligation to make specific findings and conclusions in this regard, and thus, this case must be remanded to the Commission to afford it the opportunity to again examine its position .... ” Sines v. Appel, 103 Idaho 9, 13, 644 P.2d 331, 335 (1982) (action remanded for determination of “manifest injustice” as a ground for reopening and review of an order of the commission); see Clayton v. Hercules Mining Co., 63 Idaho 301, 119 P.2d 890 (1941); Dyre v. Kloepfer, 64 Idaho 612, 134 P.2d 610 (1943). Since the commission should have passed on this issue before it is considered by this Court, the order of the Industrial Commission is reversed and the cause remanded for findings of fact and conclusions of law on the issue of whether I.C. § 72-403 bars respondent’s claim to benefits. Costs to appellant. DONALDSON, C.J., and SHEPARD and HUNTLEY, JJ., concur.