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Rodriguez v. Consolidated Farms, LLC

Supreme Court of Idaho

February 23, 2017

RODRIGO RODRIGUEZ, Claimant-Respondent,
v.
CONSOLIDATED FARMS, LLC, dba ELK MOUNTAIN FARMS, Employer; and INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Surety, Defendants-Appellants.

         2017 Opinion No. 12

         Appeal from the Industrial Commission of the State of Idaho.

         The decision of the Commission is affirmed. Costs on appeal are awarded to respondent.

          Bowen & Bailey, LLP, Boise, attorneys for appellant. W. Scott Wigle argued.

          Johnson & Monteleone, LLP, Boise, attorneys for respondent. Bruce S. Bistline argued.

          W. JONES, Justice

         I. Nature of the Case

         Appellants, 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.

         II. Factual and Procedural Background

         Rodriguez 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 maintenance.

         During 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.

         On May 10, 2011, Rodriguez's case was assigned to Richard Hunter ("Hunter"), a field consultant with the Industrial Commission Rehabilitation Division in Sandpoint, Idaho.

         On June 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.

         While 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 dismissed."

         In 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.

         On 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
• Cultivator
• Field Prep

         On May 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."

         On June 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 ...


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