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Oliveros v. Rule Steel Tanks, Inc.

Supreme Court of Idaho

March 28, 2019

BRYAN OLIVEROS, Claimant-Appellant,

          Appeal from the Industrial Commission of the State of Idaho.

         The decision of the Commission is affirmed. Costs are awarded to Respondent.

          W. Breck Seiniger, Jr., Boise, attorney for Appellant.

          R. Daniel Bowen Boise, attorney for Respondent.

          BEVAN, JUSTICE

         I. Nature of the Case

         This is 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.

         II. Factual and Procedural Background

         A. Factual Background

         In 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 restrictions:

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 Evaluation].

         Prior 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.

         Oliveros 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.

         Oliveros 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.

         From 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.

         On 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.

         B. Procedural Background

         On 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.

         The 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.[1]

         No 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%.

         A 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 ...

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