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David Tarbet v. J.R. Simplot Company

November 2, 2011

DAVID TARBET, CLAIMANT-RESPONDENT,
v.
J.R. SIMPLOT COMPANY, SELF- INSURED EMPLOYER, AND DEFENDANT-APPELLANT, AND STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, DEFENDANT-RESPONDENT.



Appeal from the Industrial Commission of the State of Idaho.

The opinion of the court was delivered by: Eismann, Justice.

2011 Opinion No. 106

Stephen W. Kenyon, Clerk

The order of the Industrial Commission is affirmed.

This is an appeal by the employer from the decision of the Industrial Commission holding that the employee's final injury caused him to be permanently and totally disabled, without considering his prior injuries, so that the employer, rather than the Industrial Special Indemnity Fund, is liable for the employee's total disability payments.

I. Factual Background

David Tarbet (Claimant) worked for the J.R. Simplot Company (Employer) for thirty-six years. It is undisputed that an industrial accident in 2007 left Claimant totally and permanently disabled. The issue before the Industrial Commission (Commission) was whether Employer is liable for all or only a part of Claimant's income benefits. If Claimant's total disability results solely from the last accident, Employer is liable for all of the income benefits. If his total disability results from the combined effects of both that injury and impairments that pre-existed that injury, then Employer is liable only for that portion of the income benefits for the disability caused by the accident and the Industrial Special Indemnity Fund (ISIF) is liable for the remainder of the income benefits.

After returning home from serving in the armed forces in Vietnam, David Tarbet (Claimant) began working for the J.R. Simplot Company (Employer) in May 1971. After initially working as a truck driver, Claimant thereafter performed a variety of jobs before commencing work at a pumping station in Soda Springs. It pulls phosphate ore slurry through a pipeline from a mine thirty miles away and then pushes it through a pipeline fifty-eight miles over a mountain pass to Employer's fertilizer plant at Pocatello. The pumps were custom-built and quite large, being described by Claimant as being "as big or bigger than, say, like a 28-foot camp trailer." His job was initially to operate the pumps, and, after an industrial accident, he was then assigned to performing maintenance.

In 2007, Claimant suffered an industrial accident while working at the pumping station. On April 5, 2007, he was using a heavy industrial steam cleaner to clean a high place on a pump. When he squeezed the trigger to turn on the spray, the steam cleaner recoiled, pushing him backward. He felt a pain shoot down both arms, and they went numb. Thereafter, he had pain in both hands. The pain in his right hand eventually dissipated, but he continued having pain in his left arm and hand. This accident injured Claimant's cervical spine. He underwent a bi-level anterior cervical diskectomy and decompression surgery in April 2007. The surgery damaged his vocal cords, resulting in him becoming hoarser the longer he talks.

On May 13, 2007, Claimant reinjured his cervical spine. While he was standing on a ladder to loosen bolts on a pressure relief valve in order to service it, he was pushing or pulling as hard as he could, and "it just slipped." He had to undergo a second surgery in December 2007. After that surgery, his physician permanently restricted Claimant from lifting more than five pounds above waist level on a continuous basis, or ten pounds occasionally; from repetitive squatting, crawling, kneeling, or walking up or down stairs; from climbing a ladder or step ladder; and from more than occasional rotational positions with sitting, rotational standing, or bending forward.

Claimant had the following physical and psychological conditions that existed prior to April 2007 accident:

a. He had rheumatoid arthritis in his wrists, hips, shoulders, and elbows for over thirty years. He managed that disease with medication and by taping towels around his wrists to keep them warm. He testified that he never missed a day of work due to that condition.

b. He had post traumatic stress disorder as a result of his experiences in Vietnam, but it was not diagnosed until 2008. That disorder causes occasional temper flares and shortterm memory loss, discomfort in social situations, and difficulty sleeping, but does not produce physical symptoms. He attended a ...


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