Opinion No. 12
from the Industrial Commission of the State of Idaho.
decision of the Commission is affirmed. Costs on appeal are
awarded to respondent.
& Bailey, LLP, Boise, attorneys for appellant. W. Scott
Johnson & Monteleone, LLP, Boise, attorneys for
respondent. Bruce S. Bistline argued.
Nature of the Case
Consolidated Farms LLC, dba Elk Mountain Farms
("Employer"), and Indemnity Insurance Company of
North America, appeal from the Idaho Industrial
Commission's finding that Respondent, Rodrigo Rodriguez
("Rodriguez"), was totally and permanently disabled
under the odd-lot doctrine.
Factual and Procedural Background
was born in Mexico. He attended school through the fifth
grade, when the death of his father required him to enter the
labor force. He performed field work until 1979, when, at age
21, he legally immigrated to California. In California,
Rodriguez found work harvesting fruit. Ten years later,
Rodriguez moved to Bonners Ferry, Idaho, where he began
working as a laborer on Employer's 2000 acre hop farm
(the "Farm"). Rodriguez's employment was
seasonal. Each year he was required to sign a waiver
acknowledging that his employment was "Temporary"
rather than "Permanent" and that his employment
would end at the conclusion of the growing season. For 21
years Rodriguez was rehired by Employer at the beginning of
each season. For many of these seasons he was part of the
"Core Group" of employees. The Core Group would
arrive at the farm early in the spring and stay until the
winter, performing trellis work, tractor work, and
the 2010 season, Rodriguez was placed in charge of irrigation
for the Farm. This position required him to drive a
four-wheeler from field to field in order to locate and
manually repair any problems with the drip system. In
addition to his work on irrigation, Rodriguez also helped
operate and maintain the machinery used in the harvesting
process. On September 8, 2010, Rodriguez, who is right
handed, was attempting to clear dirt and other debris from a
conveyor belt using a cutting hook. As Rodriguez reached into
the machine, the conveyor belt sped up, catching his arm. The
machine crushed Rodriguez's right hand and forearm,
breaking numerous bones and causing extensive damage to his
nerves and tendons. Following his injury, Rodriguez underwent
six surgeries and extensive physical therapy in order to
regain limited use of his arm.
10, 2011, Rodriguez's case was assigned to Richard Hunter
("Hunter"), a field consultant with the Industrial
Commission Rehabilitation Division in Sandpoint, Idaho.
8, 2011, Hunter met with Ed Atkins ("Atkins"), a
representative of Employer, to conduct a job site evaluation
("JSE"). The purpose of a JSE is to determine the
physical demands of a time-of-injury job in order to aid
medical examiners in determining whether an injured party is
capable of returning to work. Hunter determined, in
conducting the JSE, that "[employer was] interested in
helping [Rodriguez] return to work, whether it be modified or
alternative . . . his knowledge of the drip irrigation system
is invaluable to the employer." Hunter later testified
that Employer explained to him that should Rodriguez accept a
position they would provide Rodriguez with a co-worker to
help with any tasks that Rodriguez was unable to perform.
Hunter was optimistic, Rodriguez, according to Hunter's
testimony, was not. Hunter testified that "[Rodriguez]
felt that . . . his employer would not want to bring him
back, he didn't understand why he would modify or provide
alternate duties. He felt that once he returned to work and .
. . the work comp claim was over, that he would be
September of 2011, having undergone five surgeries, Rodriguez
attempted to return to work. He found that he was unable to
perform his previous duties adequately. This led him to
undergo his sixth surgery.
April 11, 2012, Employer provided Rodriguez with a written
job offer. The job offer makes no mention of any
modifications to account for Rodriguez's injuries. It
states as follows:
The following work is available:
• Drip Operator
• Miscellaneous Labor-Greenhouse
• Compost Operator
• Grounds Maintenance
• Contract Support
• Dreyer Operator
• Field Mower
• Field Prep
17, 2012, Royce Van Gerpen, an occupational medicine
practitioner, performed an independent medical exam
("IME") on Rodriguez. Van Gerpen concluded that
"Job analyses for Seasonal Laborer, Tractor-Trailer
Truck Driver, and Tractor Operator are reviewed and
disapproved. . . . [however] I presently do not believe he is
permanently unable to return to work."
21, 2012, Rodriguez filed a disability/medical benefits
workers compensation complaint with the Idaho Industrial
Commission (the "Commission"). In July of 2012,
Rodriguez moved to Boise ...