GARY R. CORGATELLI, Claimant-Appellant-Cross Respondent,
STEEL WEST, INC., Employer, and IDAHO STATE INSURANCE FUND, Surety, Defendants-Respondents-Cross Respondents, and STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant-Respondent-Cross Appellant
2014 Opinion No. 91
Appeal from the Industrial Commission of the State of Idaho.
The Commission's award of credit to Steel West for benefits paid is vacated. The Commission's find of liability against ISIF is reversed. This case is remanded for further proceedings consistent with this Opinion. Costs on appeal are awarded to Claimant against Steel West and to ISIF against Steel West for its cross-appeal.
Fred J. Lewis, Pocatello, attorney for appellant.
Jay Meyers, Pocatello, attorney for respondent Steel West, Inc.
Paul B. Rippel, Idaho Falls, attorney for respondent Industrial Special Indemnity Fund.
WALTERS, J., pro tem. Chief Justice BURDICK, Justices EISMANN, J. JONES and HORTON, CONCUR.
WALTERS, J., pro tem
Gary R. Corgatelli sought worker's compensation benefits from his employer Steel West and the State of Idaho's Industrial Special Indemnity Fund (ISIF) for a 2005 back injury that he incurred as a result of his employment. The Idaho Industrial Commission (the Commission) concluded that Corgatelli had a permanent physical impairment of 15% of the whole person, attributing 5% to an earlier injury in 1994 and 10% to the 2005
injury, and that Corgatelli was totally and permanently disabled. The Commission further concluded that ISIF was liable for disability benefits because the effects of Corgatelli's preexisting impairment from the 1994 injury combined with his 2005 injury to cause total and permanent disability. The Commission subsequently issued an order to clarify that Steel West was entitled to credit on the disability award for permanent physical impairment benefits Steel West previously paid to Corgatelli for his 2005 injury. Corgatelli appeals the Commission's order to credit Steel West. ISIF cross-appeals the Commission's determination of ISIF liability. As will be explained, we vacate in part the credit allowed to Steel West for payments made to Corgatelli as permanent impairment benefits, and we reverse the Commission's determination of ISIF liability.
I. Factual and Procedural Background
Corgatelli was born in 1947. In 1973, he began employment with Steel West as a fitter and welder. In the 1980s, Steel West promoted Corgatelli several times, and he eventually held the position of shipping and receiving and paint foreman. In this position, Corgatelli supervised the receiving, unloading, sandblasting, and painting of all steel, and he also drove delivery trucks.
On October 4, 1994, Corgatelli's first work-related injury occurred while pushing a load of steel off a delivery truck. He complained of low back and left buttock pain from the injury. Corgatelli filed a worker's compensation complaint on October 11, 1994. Gail Fields, D.O., examined Corgatelli, and Dr. Fields awarded Corgatelli a permanent physical impairment of 5% of the whole person. Kevin Hill, M.D., also examined Corgatelli, but Dr. Hill awarded Corgatelli no impairment rating for the injury. Steel West and Corgatelli executed a lump sum settlement agreement wherein Steel West agreed to pay Corgatelli $27,500 for the worker's compensation claim.
After the injury, Corgatelli was unable to return to the foreman position because he could not tolerate the bending, stooping, and lifting required for the position. He accepted a new position at Steel West as safety director, where he did mostly paperwork, inventory, and limited computer work. He drove delivery trucks and delivered steel within a 35-pound lifting restriction.
On January 3, 2005, Corgatelli's second work-related injury occurred while stepping down from a semi-truck. He experienced immediate back and leg pain. On May 4, 2005, Clark Allen, M.D., performed a decompressive laminotomy, facetectomy, and excision of herniated disc at L4-5. After the surgery, Corgatelli continued to work at Steel West as a safety director. In August of 2008, Corgatelli experienced increased back and leg pain after making a delivery in Wyoming. After other various treatments, Corgatelli had a posterior lumbar interbody fusion from L2 to L5 on April 6, 2009. Despite the surgery, Corgatelli had continued to have back and leg pain.
On July 15, 2009, Corgatelli filed a worker's compensation claim with the Commission against Steel West, alleging that he suffered a low back injury while stepping off the semi-truck on January 3, 2005. He sought total and permanent disability benefits. On August 4, 2010, David Simon, M.D., diagnosed Corgatelli with failed back syndrome. Dr. Simon awarded Corgatelli a permanent physical impairment of 15% of the whole person, apportioning 5% to the 1994 injury and 10% to the 2005 injury. Dr. Simon also concluded that Corgatelli's condition was medically stationary on August 4, 2010. On January 26, 2011, Corgatelli filed a worker's compensation complaint against the ISIF.
A Commission referee held a hearing and submitted his recommendation to the Commission. The Commission chose not to adopt the referee's recommendation. The Commission concluded that (1) Corgatelli had a permanent physical impairment of 15% of the whole person, attributing 5% to the 1994 injury and 10% to the 2005 injury; (2) Corgatelli was totally and permanently disabled; and (3) ISIF was liable for a portion of Corgatelli's total and permanent disability benefits because the effects of his preexisting impairment from the 1994 injury combined with the effects of his 2005 injury to cause total and permanent disability. Using the formula from the Court in Carey v. Clearwater
County Road Department, 107 Idaho 109, 686 P.2d 54 (1984), the Commission calculated that Steel West was liable for 66.7% of Corgatelli's benefits for the total and permanent disability, totaling 333.5 weeks of benefits or $99,599.78. ISIF was liable for payment of total and permanent disability benefits 333.5 weeks after August 4, 2010, the date Corgatelli was medically stationary. The Commission denied Steel West's request to offset its liability by the sum it previously had paid for Corgatelli's 1994 injury.
On August 14, 2012, Steel West filed a motion for reconsideration and clarification. Steel West conceded that it did not challenge the Commission's refusal to offset Steel West's liability by the sum it had paid for Corgatelli's 1994 injury. Instead, Steel West sought to offset its liability by the sum it previously paid for Corgatelli's 2005 injury. Corgatelli objected to Steel West's motion. On April 5, 2013, the Commission issued an order to clarify and held that Steel West was entitled to credit the total and permanent disability award with the permanent physical impairment benefits it already paid for Corgatelli's 2005 injury.
Corgatelli appeals the Commission's order to clarify. ISIF cross-appeals the Commission's finding of ISIF liability.
II. Issues on Appeal
1. Whether certain permanent physical impairment benefits previously paid to Corgatelli for his 2005 injury are credited towards Steel West's liability for total and permanent disability benefits.
2. Whether there is substantial and competent evidence to find that the effects of Corgatelli's preexisting impairment from an earlier injury combined with the effects of his current injury ...