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Funes v. Aardema Dairy

November 24, 2010


Appeal from the Industrial Commission of the State of Idaho.

The opinion of the court was delivered by: Horton, Justice

2010 Opinion No. 112

The decision of the Industrial Commission is affirmed.

Mr. Filadelfo Funes (Funes) sustained an on-the-job injury in January 2005. Funes argued before the Idaho Industrial Commission (Industrial Commission or Commission) that his injuries resulted in either permanent total disability or a substantial permanent partial disability. The Industrial Commission found that Funes was not totally disabled but had suffered a 25% permanent partial disability. Funes appeals, arguing that the Industrial Commission erred in its calculation or, in the alternative, that the Industrial Commission erred in not finding Funes to be an "odd lot" worker for whom no other employment is regularly available. Aardema Dairy (Aardema), Funes‟ former employer, and the State Insurance Fund, Aardema‟s surety, seek attorney fees on appeal under Idaho Appellate Rule 11.2.*fn1 We affirm, but do not award attorney fees.


Funes was born in Honduras and moved to the United States in the late 1990s. He speaks only Spanish and does not read or write in any language. Before coming to the United States, Funes drove a taxi and truck. In January 2005, while working at Aardema Dairy, Funes picked up a newborn calf and injured his back. Following initial medical care, Funes was referred to Dr. David Verst for ongoing care. On May 2, 2005, Dr. Verst performed lumbar surgery. On May 19, Dr. Verst noted that Funes‟ neurological exam was normal and that Funes reported only mild back pain. The diminished pain continued through June 27, when Dr. Verst released Funes to return to work with restrictions.

Dr. Verst re-evaluated Funes on July 21, 2005, and Funes claimed that he was unable to return to light duty work. Funes‟ complaints continued through August 2005, notwithstanding the fact that the pain was not corroborated by any sign of recurrent herniation. On August 23, 2005, Dr. David Christensen conducted an MRI that resulted in Dr. Christensen‟s diagnosis of right sacroiliitis or right sacroiliac joint (SI) dysfunction. Dr. Christensen felt that Funes could return to light-duty work with weight restrictions. On November 10, 2005, Funes was treated by Dr. Clinton Dillé who noted that Funes‟ symptoms appeared to be "greatly exaggerated." Despite Funes‟ continued treatment, his complaints of pain increased. Dr. Verst eventually determined that he had no additional recommendations for treatment and released Funes from his care. Dr. Verst then referred Funes to Dr. K. Cheri Wiggins who treated Funes from March 2006 to February 2007. Dr. Wiggins noted that Funes demonstrated "regionalization and pain behaviors" alongside "symptom magnification." Funes returned to Dr. Verst in March 2007, and Dr. Verst found that Funes‟ symptoms were greater than indicated by objective MRI findings.

On April 12, 2007, Aardema Dairy and the State Insurance Fund arranged for Funes to be evaluated in an Independent Medical Examination (IME) by a panel including orthopedic surgeon Dr. Joseph Daines, psychiatrist Dr. Eric Holt, and neurologist Dr. Richard Wilson. The IME panel determined that Funes could perform light-to-medium work activities, with lifting limited to 50 pounds occasionally and 25 pounds on a regular basis, with limited bending and stooping. Dr. Verst later responded to a questionnaire stating that he agreed with the IME‟s conclusions. Funes was also evaluated by neurologist Dr. Michael O‟Brien on September 11, 2007. Dr. O‟Brien agreed that Funes was medically stable but disagreed with previous partial permanent impairment (PPI) ratings made by Dr. Wiggins (12%) and Dr. Verst (10%). Dr. O‟Brien‟s opinion was that Funes should receive a 20% PPI rating. Dr. Verst testified in a post-hearing deposition that, in his opinion, Funes‟ neck symptoms were not related to the industrial injury and that he did not see a basis for the 20% PPI rating assigned by Dr. O‟Brien.

Before the Industrial Commission, Funes argued that he was medically disabled from returning to any sort of work, that his PPI was at least 10% and as high as 20%, and that his permanent partial disability (PPD) was substantially in excess of PPI. He also argued that he should be reimbursed for a variety of medical costs. The evidence considered by the Industrial Commission included testimony by Funes, exhibits submitted by Funes, exhibits submitted by Aardema Dairy and the post-hearing deposition of Dr. David Verst. The exhibits submitted by Funes included: medical records of St. Benedicts Family Medical Center; medical records and reports of St. Benedicts Family Clinic and Dr. Gary Meyers; reports of Jerome Physical Therapy and Sports Medicine; records of Drs. David Christensen, David Verst, K. Cheri Wiggins, and Michael O‟Brien; Funes‟ 2003 and 2004 tax returns; billings by Dr. Wiggins and pharmaceutical billings for Lyrica;*fn2 the records of Mr. Greg Taylor of the Industrial Commission‟s Rehabilitation Division; and Funes‟ first, second, and third supplemental answers to Aardema‟s interrogatories and request for production. The exhibits submitted by Aardema included records and reports of Drs. Thomas H. Zepeda, David M. Christensen, David Verst, K. Cheri Wiggins, Clinton Dillé, and Richard Wilson, along with a radiology report from Magic Valley Regional Medical Center and a list of benefits paid.

The Industrial Commission found that Funes was entitled to $1,536.22 in unpaid medical expenses, that Aardema and the State Insurance Fund were not entitled to reimbursement for temporary disability benefits already paid, and that Funes was entitled to attorney fees for the unreasonable denial of payment of medical bills. The Industrial Commission further found that Funes was not permanently disabled "either by the 100% method or as an odd-lot worker" and was entitled to a whole person PPD of 25%. Funes filed a motion for reconsideration of the Industrial Commission‟s order. The Commission denied that motion on October 21, 2008. Funes now appeals.


The standard of review in cases appealed from the Industrial Commission is strictly circumscribed by statute. Idaho Code § 72-732 provides that this Court may only overturn a decision of the Industrial Commission where:

(1) The commission‟s findings of fact are not based on any ...

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