Opinion No. 92
from the Industrial Commission of the State of Idaho.
order of the Industrial Commission is affirmed.
Matthew C. Parks, Elam & Burke PA, Boise, argued for
Richard S. Owen, Owen and Farney PLLC, Nampa, argued for
an appeal from the order of the Industrial Commission
requiring an employer and its surety to pay the cost of a
guardian and a conservator for a claimant who suffered a
severe, traumatic brain injury as a result of an industrial
accident, which left him unable to care for himself. We
affirm the order of the Commission.
employed by Zing LLC, Josue Barrios ("Claimant")
was totally and permanently disabled as a result of an
industrial accident when he fell about twelve feet from a
ladder and hit his head face first on a concrete floor. He
suffered multiple facial fractures, a frontal bone fracture,
the loss of sight in his left eye, and a severe traumatic
brain injury that caused a major neurocognitive disorder and
speech language deficits.
undisputed that Claimant is unable to care for himself as a
result of his injuries. At the time of the hearing, he was
living in a home certified by the Idaho Department of Health
and Welfare. The person operating that home speaks Spanish,
which is the only language that Claimant speaks.
Claimant's treating physician recommended that a guardian
and a conservator be appointed for him. In making this
recommendation, the physician wrote:
He requires a professional guardian of the person, and a
professional conservator of the estate per the Idaho Probate
code. He is unable to plan, advocate, or care for himself in
the medical, personal and financial areas of his life due to
his cognitive issues and closed head injury sequelae. . . . .
The appointment of a guardian and of a conservator for Mr.
Barrios is medically necessary due to the traumatic brain
injury, which robs him of his ability to make cogent
decisions about his medical treatment and about his financial
affairs, and which requires the appointment of a guardian and
of a conservator to make those decisions and to manage his
were instituted to accomplish that recommendation, and the
magistrate court in Ada County appointed a guardian and a
conservator for Claimant. His employer and the Idaho State
Insurance Fund (both herein called "Surety")
refused to pay the fees charged by the guardian and
conservator, contending that such expenses were not
compensable under Idaho Code section 72-432. The Industrial
Commission considered that legal issue and held that Surety
were responsible for the payment of the fees and expenses of
the guardian and the conservator. Surety then timely
the Commission Err in Holding that the Fees and Expenses of a
Guardian and Conservator Are Compensable under Idaho Code
interpretation of a statute is an issue of law over which we
exercise free review." State v. Maidwell, 137
Idaho 424, 426, 50 P.3d 439, 441 (2002). Idaho Code section
72-432(1) states insofar as is relevant, "[T]he employer
shall provide for an injured employee such reasonable
medical, surgical or other attendance or treatment, nurse and
hospital services, medicines, crutches and apparatus, as may
be reasonably required by the employee's physician or
needed immediately after an ...