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Deon v. H&J, Inc.

Supreme Court of Idaho

November 28, 2014

TRUDY DEON, Claimant-Appellant,
v.
H& J, INC., d/b/a BEST WESTERN, COEUR D'ALENE INN & CONFERENCE CENTER, Employer, LIBERTY NORTHWEST INSURANCE CORPORATION, Surety, and IDAHO SPECIAL INDEMNITY FUND, Defendants-Respondents

2014 Opinion No. 125.

Appeal from the Idaho Industrial Commission.

The Order on Reconsideration is reversed. The case is remanded to the Commission with instructions to reinstate the Findings of Fact, Conclusions of Law, and Order dated May 3, 2013.

James, Vernon & Weeks, P.A., Coeur d'Alene, for appellant. Stephen J. Nemec argued.

Law Offices of Kent W. Day, Boise, for respondents H& J, Inc. and Liberty Northwest. Joseph M. Wager argued.

Jones, Brower & Callery, PLLC, Lewiston, for respondent ISIF. Thomas W. Callery argued.

J. JONES, Justice. Chief Justice BURDICK, and Justices EISMANN and HORTON, and Justice Pro Tem WALTERS CONCUR.

OPINION

Page 551

[157 Idaho 666] J. JONES, Justice

Trudy Deon brought worker compensation claims against her employer, H& J, Inc., and its surety, Liberty Northwest, (Employer/Surety) and the Idaho Special Indemnity Fund (ISIF). Deon eventually settled with ISIF but the claim against Employer/Surety went to a hearing that resulted in the Idaho Industrial Commission finding Employer/Surety 100% liable for her total and permanent disability (TPD). The Commission decided sua sponte to reconsider its decision and invited the parties to brief the issue of whether Deon was estopped from arguing Employer/Surety was 100% liable, given her settlement with ISIF. In an order on reconsideration, the Commission held that Deon was so estopped and apportioned 23.92% of her TPD to Employer/Surety. Deon filed a timely appeal.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Deon was employed as a full-time maintenance technician for H& J, Inc.[1] from 2003 until 2009. Several years before she began her work for H& J, Deon injured her neck and shoulders, resulting in a 6% whole person permanent impairment rating. Then in 2006, Deon was attacked by dogs, resulting in an additional 7% whole person permanent impairment rating due to lower extremity injuries. This injury did not happen in the course of her employment.

Page 552

[157 Idaho 667] The accident leading to the current action happened in October 2008. While Deon was using a small power auger to clear the drain in a kitchen sink at the hotel, the auger caught her right glove, twisting and crushing her right hand and wrist. She was initially diagnosed with a sprain to her right hand, sprains to two of her fingers, and contusions. Although Deon was eventually cleared to return to full-time work, her supervisor felt she was not physically capable of performing her pre-injury duties. Deon's doctor ordered significant lifting restrictions on Deon, and her employment was eventually terminated because her employer had no available work within her restrictions. Doctors varied on the permanent impairment ratings they assigned to the hand/wrist injury, ranging from 2% to 4%. Likewise, three different vocational experts examined Deon's circumstances, giving opinions that varied widely as to her employability and overall disability rating, which ranged from 45% to 85%.

Deon filed worker compensation complaints against Employer/Surety and ISIF, and these actions were consolidated shortly thereafter. Before the matter went to hearing, Deon negotiated a settlement agreement with ISIF, though the agreement was not actually executed by the parties and approved by the Commission until after the hearing. The agreement between Deon and ISIF stipulated that Deon was totally and permanently disabled based upon the combined effects of her pre-existing impairments and the injury to her right hand and wrist. It further stipulated that the ISIF was responsible for 60% of Deon's TPD benefits in the form of a lump sum payment of $70,000. The Commission approved the agreement on November 8, 2012. Her claim against Employer/Surety went to hearing before a Commission referee in mid-October, 2012. At the hearing, and in her post-hearing briefing, Deon took the position that her TPD stemmed solely from the hand/wrist injury.

Approximately six months after the evidentiary hearing and the approval of the ISIF settlement agreement, the Commission issued its Findings of Fact, Conclusions of Law and Order (Decision), wherein it found the evidence showed Deon was totally and permanently disabled solely by reason of her hand/wrist injury. Therefore, Employer/Surety was 100% responsible for her disability benefits. The same day it issued the Decision, the Commission also informed the parties it intended to reconsider the Decision pursuant to Idaho Code section 72-718 to consider the effect the ISIF settlement agreement should have on Employer/Surety's liability. The Commission sua sponte raised, and invited the parties to brief, the issue of whether Deon's settlement with the ISIF should have some collateral estoppel effect on her claim of Employer/Surety's 100% liability.

Following the parties' briefing, the Commission issued its Order on Reconsideration, wherein it found that Deon was estopped from arguing Employer/Surety was 100% liable. The Commission apportioned liability for Deon's disability between Employer/Surety and ISIF, assigning Employer/Surety 23.92% of the ...


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