from the Industrial Commission of the State of Idaho.
decision of the Commission is affirmed. Costs are awarded to
Breck Seiniger, Jr., Boise, attorney for Appellant.
Daniel Bowen Boise, attorney for Respondent.
Nature of the Case
a worker's compensation case. Bryan Oliveros filed a
complaint with the Idaho Industrial Commission
("Commission") after he was involved in a work
related accident at Rule Steel Tanks, Inc. ("Rule
Steel"). The accident resulted in the partial amputation
of all four fingers on his dominant hand. The Commission
awarded Oliveros compensation for a 32% partial permanent
impairment ("PPI") rating but declined to award any
additional benefits after it later found his permanent
partial disability ("PPD") rating to be 25%.
Oliveros appealed to this Court. While we conclude the
Commission erred when it found Oliveros' PPI could exceed
his PPD, we otherwise affirm the Commission's decision.
Factual and Procedural Background
2008, before starting his senior year of high school,
Oliveros had a summer job with Rule Steel operating a metal
press that shaped pieces of steel. Oliveros earned about $7
an hour. On July 30, 2008, his second day at work, the
fingers of Oliveros' dominant, right hand were caught in
the metal press, which resulted in the traumatic amputation
of portions of all four fingers, associated crush injuries,
and some degloving injuries on what remained of his fingers.
Oliveros had approximately five surgeries before he was
considered medically stable. On April 6, 2009, Oliveros'
treating physician, Dr. Gross, found that Oliveros had
suffered a 32% PPI rating due to his injuries. Dr. Gross
released Oliveros to his pre-injury occupation with these
He may work in an 8-10 hour shift, with usual and customary
breaks, at a medium duty position. The following restrictions
are for his Right Upper Extremity Only:
5 pound grip/carry
75 pound push
50 pound pull
20 pound lifting
No fine manipulation
Mr. Oliveros should be able to comply with these restrictions
for the full shift, without special breaks or rest periods,
based on the findings of the [Functional Capacity
to his accident Oliveros had several jobs predominantly in
the fast food industry. In either 2006 or 2007, Oliveros
worked for Burger King for about 6 months. In April 2008,
Oliveros worked as a cashier at Dairy Queen. Following the
accident, around March 2009, Oliveros returned to work at
Dairy Queen for a few months performing light duty work
running the cashier stand and cleaning tables.
went back to high school in 2009; however, after missing too
much school while recovering from his accident, he ultimately
obtained his GED from Boise State University in 2010. From
August 2010 to April 2011, Oliveros attended Lewis-Clark
State College in Lewiston, Idaho, where he took business
classes for two semesters. The summer of 2011, Oliveros took
an online class in communications at College of Western Idaho
("CWI"). From August to December 2011, Oliveros
returned to the Nampa/Boise area and began working in
customer service for WDS Global, a Verizon call center,
earning around $9 or $10 an hour with benefits.
decided to pursue a career as a pharmacy technician. In 2012,
Oliveros enrolled in Carrington College to become certified
as a pharmacy technician; however, he dropped out after a few
months. From approximately September 2012 to May 2013,
Oliveros took courses from the Milan Institute where he
earned a Certificate of Completion in Pharmacy Technology.
Oliveros went on to work at the Terry Reilly Pharmacy with a
provisional license as a pharmacy technician in training.
Oliveros earned an initial wage of about $13 an hour that
eventually increased to $13.80 an hour. Oliveros left Terry
Reilly in August 2015 after he could not pass the examination
to become a full pharmacy technician.
August to September 2015, Oliveros worked at Medcap Pharmacy
making about $14 an hour. From September to November 2015,
Oliveros worked at TigerDirect as an account manager, making
$14.42 an hour plus commissions. From November 15, 2015, to
February 29, 2016, Oliveros applied for pharmacy jobs at
Walgreens, Walmart, and Albertsons but was not hired. On
February 29, 2016, Oliveros started working for KeyBank as a
bank teller, making $11.75 an hour plus benefits he could
purchase. Oliveros worked at Key Bank for about 8 months
until he was let go because of a customer complaint.
December 5, 2016, Oliveros began working as a third-party
coordinator for Albertsons' corporate office. Oliveros
remained employed at Albertsons at the time of his hearing,
earning $15.87 per hour, plus benefits.
February 16, 2010, Oliveros filed a worker's compensation
complaint with the Commission seeking: (1) medical benefits;
(2) total temporary disability ("TTD")/total
permanent disability ("TPD"); (3) permanent partial
impairment ("PPI"); (4) permanent partial
disability ("PPD"); (5) retraining; and (6)
attorney fees. Rule Steel conceded Oliveros suffered a 32%
PPI rating, which it had already paid him; however, Rule
Steel disputed whether Oliveros: (1) was entitled to payment
for his PPD rating beyond the award he received for his 32%
PPI rating; (2) needed retraining benefits to restore his
wage earning capacity; (3) required even more medical
treatment; and (4) needed prostheses.
parties stipulated to a limited hearing held on December 7,
2011, to determine whether Oliveros was entitled to
prosthetic fingers under Idaho Code section 72-432. Oliveros
argued that prosthetic silicone fingers were a reasonable
part of the medical care necessitated by his injury, whereas
Rule Steel argued that prosthetic fingers were not medically
necessary because they would not improve the residual
function of Oliveros' hand. On November 2, 2012, the
Commission denied Oliveros' request for prosthetics. The
Commission was persuaded by the testimony of Dr. Gross,
Oliveros' treating physician, who opined that prostheses
would be useless and would contribute to an even greater loss
of function. Oliveros filed a motion for reconsideration and
motion to rehear the case en banc, which the Commission
denied on December 14, 2012.
further action was taken in the case until February 21, 2017,
when Oliveros filed a prehearing statement for his remaining
claims. Oliveros mainly relied on a report prepared by
Douglas Crum, a vocational expert Oliveros retained at his
own expense in 2009. Mr. Crum suggested that the only way
Oliveros could successfully mitigate the effects of his 2008
accident would be through education. Mr. Crum opined that
"[w]ithout retraining . . . Mr. Oliveros would
reasonably experience disability, inclusive of impairment, of
approximately 75%." On April 7, 2016, Mr. Crum updated
his report based on Oliveros' more recent education and
work history and stated that because of Oliveros'
"retraining" he had not suffered a loss of wage
earning capacity, but he had a 55% loss of labor market
access, resulting in a PPD rating of 45%.
hearing was held on February 22, 2017, to determine whether
Oliveros had a right to retraining reimbursement benefits,
temporary disability benefits while he was retraining, PPD,
and attorney fees. Oliveros limited the retraining benefits
he sought to reimbursement for the Milan Institute program.
Oliveros argued that because he reduced his PPD rating at his
own expense he was entitled to compensation for the
retraining he underwent. Alternatively, Oliveros argued that
if Rule Steel did not have ...