IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 35923
FILADELFO FUNES, )
) Boise, August 2010 Term
Claimant-Appellant, )
) 2010 Opinion No. 112
v. )
) Filed: November 24, 2010
AARDEMA DAIRY, Employer, and STATE )
INSURANCE FUND, Surety, ) Stephen Kenyon, Clerk
)
Defendants-Respondents )
Appeal from the Industrial Commission of the State of Idaho.
The decision of the Industrial Commission is affirmed.
Greg J. Fuller, Twin Falls, for appellant.
Eberle, Berlin, Kading, Turnbow & McKlveen, Chtd., Boise, for respondents.
SUBMITTED ON THE BRIEFS
_______________________________________________
HORTON, Justice
Mr. Filadelfo Funes (Funes) sustained an on-the-job injury in January 2005. Funes
argued before the Idaho Industrial Commission (Industrial Commission or Commission) that his
injuries resulted in either permanent total disability or a substantial permanent partial disability.
The Industrial Commission found that Funes was not totally disabled but had suffered a 25%
permanent partial disability. Funes appeals, arguing that the Industrial Commission erred in its
calculation or, in the alternative, that the Industrial Commission erred in not finding Funes to be
an “odd lot” worker for whom no other employment is regularly available. Aardema Dairy
(Aardema), Funes‟ former employer, and the State Insurance Fund, Aardema‟s surety, seek
attorney fees on appeal under Idaho Appellate Rule 11.2.1 We affirm, but do not award attorney
fees.
1
Aardema Dairy cites to I.A.R. 11.1. The previous I.A.R. 11.1 was renumbered as I.A.R. 11.2 on March 19, 2009,
effective July 1, 2009.
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I. FACTUAL AND PROCEDURAL BACKGROUND
Funes was born in Honduras and moved to the United States in the late 1990s. He speaks
only Spanish and does not read or write in any language. Before coming to the United States,
Funes drove a taxi and truck. In January 2005, while working at Aardema Dairy, Funes picked
up a newborn calf and injured his back. Following initial medical care, Funes was referred to Dr.
David Verst for ongoing care. On May 2, 2005, Dr. Verst performed lumbar surgery. On May
19, Dr. Verst noted that Funes‟ neurological exam was normal and that Funes reported only mild
back pain. The diminished pain continued through June 27, when Dr. Verst released Funes to
return to work with restrictions.
Dr. Verst re-evaluated Funes on July 21, 2005, and Funes claimed that he was unable to
return to light duty work. Funes‟ complaints continued through August 2005, notwithstanding
the fact that the pain was not corroborated by any sign of recurrent herniation. On August 23,
2005, Dr. David Christensen conducted an MRI that resulted in Dr. Christensen‟s diagnosis of
right sacroiliitis or right sacroiliac joint (SI) dysfunction. Dr. Christensen felt that Funes could
return to light-duty work with weight restrictions. On November 10, 2005, Funes was treated by
Dr. Clinton Dillé who noted that Funes‟ symptoms appeared to be “greatly exaggerated.”
Despite Funes‟ continued treatment, his complaints of pain increased. Dr. Verst eventually
determined that he had no additional recommendations for treatment and released Funes from his
care. Dr. Verst then referred Funes to Dr. K. Cheri Wiggins who treated Funes from March 2006
to February 2007. Dr. Wiggins noted that Funes demonstrated “regionalization and pain
behaviors” alongside “symptom magnification.” Funes returned to Dr. Verst in March 2007, and
Dr. Verst found that Funes‟ symptoms were greater than indicated by objective MRI findings.
On April 12, 2007, Aardema Dairy and the State Insurance Fund arranged for Funes to be
evaluated in an Independent Medical Examination (IME) by a panel including orthopedic
surgeon Dr. Joseph Daines, psychiatrist Dr. Eric Holt, and neurologist Dr. Richard Wilson. The
IME panel determined that Funes could perform light-to-medium work activities, with lifting
limited to 50 pounds occasionally and 25 pounds on a regular basis, with limited bending and
stooping. Dr. Verst later responded to a questionnaire stating that he agreed with the IME‟s
conclusions. Funes was also evaluated by neurologist Dr. Michael O‟Brien on September 11,
2007. Dr. O‟Brien agreed that Funes was medically stable but disagreed with previous partial
permanent impairment (PPI) ratings made by Dr. Wiggins (12%) and Dr. Verst (10%). Dr.
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O‟Brien‟s opinion was that Funes should receive a 20% PPI rating. Dr. Verst testified in a post-
hearing deposition that, in his opinion, Funes‟ neck symptoms were not related to the industrial
injury and that he did not see a basis for the 20% PPI rating assigned by Dr. O‟Brien.
Before the Industrial Commission, Funes argued that he was medically disabled from
returning to any sort of work, that his PPI was at least 10% and as high as 20%, and that his
permanent partial disability (PPD) was substantially in excess of PPI. He also argued that he
should be reimbursed for a variety of medical costs. The evidence considered by the Industrial
Commission included testimony by Funes, exhibits submitted by Funes, exhibits submitted by
Aardema Dairy and the post-hearing deposition of Dr. David Verst. The exhibits submitted by
Funes included: medical records of St. Benedicts Family Medical Center; medical records and
reports of St. Benedicts Family Clinic and Dr. Gary Meyers; reports of Jerome Physical Therapy
and Sports Medicine; records of Drs. David Christensen, David Verst, K. Cheri Wiggins, and
Michael O‟Brien; Funes‟ 2003 and 2004 tax returns; billings by Dr. Wiggins and pharmaceutical
billings for Lyrica;2 the records of Mr. Greg Taylor of the Industrial Commission‟s
Rehabilitation Division; and Funes‟ first, second, and third supplemental answers to Aardema‟s
interrogatories and request for production. The exhibits submitted by Aardema included records
and reports of Drs. Thomas H. Zepeda, David M. Christensen, David Verst, K. Cheri Wiggins,
Clinton Dillé, and Richard Wilson, along with a radiology report from Magic Valley Regional
Medical Center and a list of benefits paid.
The Industrial Commission found that Funes was entitled to $1,536.22 in unpaid medical
expenses, that Aardema and the State Insurance Fund were not entitled to reimbursement for
temporary disability benefits already paid, and that Funes was entitled to attorney fees for the
unreasonable denial of payment of medical bills. The Industrial Commission further found that
Funes was not permanently disabled “either by the 100% method or as an odd-lot worker” and
was entitled to a whole person PPD of 25%. Funes filed a motion for reconsideration of the
Industrial Commision‟s order. The Commission denied that motion on October 21, 2008.
Funes now appeals.
2
Dr. Wiggins prescribed Lyrica for pain management.
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II. STANDARD OF REVIEW
The standard of review in cases appealed from the Industrial Commission is strictly
circumscribed by statute. Idaho Code § 72-732 provides that this Court may only overturn a
decision of the Industrial Commission where:
(1) The commission‟s findings of fact are not based on any substantial competent
evidence;
(2) The commission has acted without jurisdiction or in excess of its powers;
(3) The findings of fact, order or award were procured by fraud;
(4) The findings of fact do not as a matter of law support the order or award.
The standard of review based on I.C. § 72-732 has been articulated by this Court as follows:
When this Court reviews a decision of the Industrial Commission, it exercises free
review over questions of law, but reviews questions of fact only to determine
whether substantial and competent evidence supports the Commission‟s findings.
Substantial and competent evidence is relevant evidence that a reasonable mind
might accept to support a conclusion. Because the Commission is the fact finder,
its conclusions on the credibility and weight of the evidence will not be disturbed
on appeal unless they are clearly erroneous. This Court does not weigh the
evidence or consider whether it would have reached a different conclusion from
the evidence presented. Whether a claimant has an impairment and the degree of
permanent disability resulting from an industrial injury are questions of fact.
Eacret v. Clearwater Forest Indus., 136 Idaho 733, 735, 40 P.3d 91, 93 (2002) (citations
omitted) (quoted in Bradford v. Roche Moving & Storage, Inc., 147 Idaho 733, 736, 215 P.3d
453, 456 (2009)). “Substantial evidence is more than a scintilla of proof, but less than a
preponderance. It is relevant evidence that a reasonable mind might accept to support a
conclusion.” Jensen v. City of Pocatello, 135 Idaho 406, 412, 18 P.3d 211, 217 (2000) (quoting
Zapata v. J.R. Simplot Co., 132 Idaho 513, 515, 975 P.2d 1178, 1180 (1999)).
III. ANALYSIS
A. The Industrial Commission’s determination that Funes suffered a 25% partial
permanent disability is supported by substantial and competent evidence.
Assessment of disability under Idaho worker‟s compensation law is calculated according
to the following factors. “Permanent impairment” is the “anatomic or functional abnormality or
loss after maximal medical rehabilitation has been achieved and which abnormality or loss,
medically, is considered stable or nonprogressive at the time of evaluation.” I.C. § 72-422. A
degree of permanent disability is calculated based on the extent to which “the actual or presumed
ability to engage in gainful activity is reduced or absent because of permanent impairment and
no fundamental or marked change in the future can be reasonably expected.” I.C. § 72-423.
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“Total and permanent disability may be proven either by showing that the claimant‟s permanent
impairment together with nonmedical factors totals 100% or by showing that the claimant fits
within the definition of an odd-lot worker.” Christensen v. S.L. Start & Assoc., Inc., 147 Idaho
289, 292, 207 P.3d 1020, 1023 (2009) (citing Jarvis v. Rexburg Nursing Ctr., 136 Idaho 579,
583-84, 38 P.3d 617, 621-22 (2001)).
Funes makes two arguments disputing the Industrial Commission‟s finding of a 25%
permanent partial disability.3 First, he argues that the finding of a 25% PPD ignored Dr. Verst‟s
finding that Mr. Funes‟ “job opportunities are very limited because of his lack of education,
inability to speak English and work history focused on labor.” Second, Funes argues that despite
a finding of “symptom exaggeration” by the Industrial Commission, the Commission otherwise
ignored any finding of chronic pain.
We reject Funes‟ first argument, regarding the Commission‟s finding regarding Funes‟
job opportunities. The Commission applied the standard reiterated in Graybill v. Swift & Co. of
“whether the physical impairment, taken in conjunction with non-medical factors, has reduced
the claimant's capacity for gainful activity.” 115 Idaho 293, 294, 766 P.2d 763, 764 (1988).
This standard incorporates relevant non-medical factors including “the diminished ability of the
afflicted employee to compete in an open labor market within a reasonable geographical area
considering all the personal and economic circumstances of the employee, and other factors as
the commission may deem relevant . . . .” I.C. § 72-430. The Industrial Commission considered
Funes‟ background and language skills alongside its consideration of the labor market and
concluded that Funes suffered a 25% disability. Because there is substantial and competent
evidence to support the Commission‟s finding, Funes‟ first argument fails.
The second argument, regarding the Commission‟s non-consideration of the pain factors
is slightly more complex. This Court has previously held that “a permanent disability rating
need not be greater than the impairment rating if, after consideration of the non-medical factors
in I.C. § 72-425, the claimant‟s „probable future ability to engage in gainful activity‟ is
accurately reflected by the impairment rating.” Graybill, 115 Idaho at 294, 766 P.2d at 764. In
Graybill, the Court noted the Commission‟s finding that “if an impairment evaluation had been
based solely upon a „discrete physiological deficit,‟ without considering subjective limitations
such as chronic pain, then it would be appropriate to separately consider pain in arriving at the
3
Funes‟ further argument that he is an odd-lot worker is treated in Section III.B., infra.
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disability evaluation.” Id. at 295, 766 P.2d at 765. Pain may be considered as a medical factor, a
non-medical factor, or both, but it must be considered.
However, Funes is incorrect in contending that the Commission failed to consider Funes‟
complaints of chronic pain. The Industrial Commission based its evaluation of PPI on Funes‟
claims of “debilitating chronic pain.” The Commission based its decision in part on Dr. Verst‟s
responses to a February 18, 2006 questionnaire, which requested an assessment based on the
AMA Guides to the Evaluation of Permanent Impairment. The AMA Guides include an entire
chapter devoted to assessments based on pain. AMA Guides to the Evaluation of Permanent
Impairment ch. 18 (5th Ed.); see also Pomerinke v. Excel Trucking Transport, Inc., 124 Idaho
301, 307, 859 P.2d 337, 343 (1993) (“[T]he Commission in the present case cited the AMA
Guides merely in support of its supposition that the medical panels included pain in their
impairment ratings.”). Thus, contrary to Funes‟ claim, there is substantial and competent
evidence in the record that Funes‟ objective pain was considered by the Industrial Commission in
its calculation of “a 10% whole person PPI as a result of his occupational injury.”
We find that the Industrial Commission used the correct legal standards for determining
Funes‟ PPD, that the Commission did consider Funes‟ pain in determining the calculation of his
impairment, and that the Commission‟s determination of Funes‟ PPD was based on substantial
and competent evidence.
B. The Industrial Commission’s finding that Funes was not an odd lot worker was
supported by substantial and competent evidence.
Funes further claims that the Industrial Commission erred by rejecting his claim of being
an “odd lot” worker. An odd lot employee is someone “who is so injured that he can perform no
services other than those which are so limited in quality, dependability or quantity that a
reasonably stable market for them does not exist [such that he] may well be classified as totally
disabled.” Arnold v. Splendid Bakery, 88 Idaho 455, 463, 401 P.2d 271, 276 (1965); see also
Jarvis v. Rexburg Nursing Ctr., 136 Idaho 579, 584, 38 P.3d 617, 622 (2001).
“A claimant may establish a prima facie case of odd-lot disability status as a matter of
law only if „the evidence is undisputed and is reasonably susceptible to only one interpretation.‟
The burden of proving a prima facie case of odd-lot status is on the claimant.” Boley v. State,
Indus. Special Indem. Fund, 130 Idaho 278, 281, 939 P.2d 854, 857 (1997) (quoting Lethrud v.
Indus. Special Indem. Fund, 126 Idaho 560, 563, 887 P.2d 1067, 1070 (1995)). The Boley Court
went on to note that a determination of the nature or availability of employment is a fact-finding
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that will not be disturbed on a showing that substantial and competent evidence exists in the
record. Boley, 130 Idaho at 281, 939 P.2d at 857.
In this case, the Industrial Commission made a finding that alternative employment
opportunities existed, citing “driving jobs without loading/unloading requirements and [ ] various
types of restaurant work.” By concurring with the IME panel‟s determination that Funes “is able
to perform light to medium type work with permanent restrictions,” the Commission specifically
considered the labor market for someone in Funes‟ condition. While Funes argues that his pain
is a basis for finding him to be an odd lot worker, Funes‟ pain was taken into consideration by
the Commission and the Commission identified types of work that the various physicians
involved agreed he could perform. These findings were based upon the substantial and
competent evidence necessary to support the Commission‟s finding. We therefore conclude that
the Industrial Commission did not err in finding that Funes is not an odd lot worker.
C. We deny Aardema’s request for attorney fees under I.A.R. 11.2.
Aardema argues that it is entitled to attorney fees under I.A.R. 11.2. Aardema argues that
both Talbot v. Ames Construction, 127 Idaho 648, 904 P.2d 560 (1995), and Stolle v. Bennett,
144 Idaho 44, 156 P.3d 545 (2007), support allowing attorney fees in worker‟s compensation
cases. Particularly, Aardema points to the Court‟s finding in Stolle that “[t]his Court has
awarded attorney‟s fees when the appealing party is simply asking the Court to reweigh the
evidence and credibility determinations.” 144 Idaho at 51, 156 P.3d at 552. The Court in Talbot
relied on two factors: first, the admission during oral argument that substantial and competent
evidence existed for the Commission‟s finding. 127 Idaho at 653, 904 P.2d at 565. Second, the
Court found “that [Talbot] presented no legal arguments as a basis for his appeal . . . .” Stolle,
144 Idaho at 51, 156 P.3d at 552 (describing the findings in Talbot). In Stolle, these factors were
combined with a low dollar amount at issue and extensive argument regarding attorney fees. Id.
Idaho Appellate Rule 11.2 “serves to sanction attorneys who violate the certification that
they made when signing a notice of appeal” and warrants attorney fees where an appeal “was so
far outside the realm of reasonability that it warrants a sanction on the losing attorney.” Fowble
v. Snoline Exp., Inc., 146 Idaho 70, 77, 190 P.3d 889, 896 (2008). This Court has also noted that
even where claims were dubious, “sanctions under Rule 11.1 would not be awarded where the
Court could not conclude that the appeal was interposed for an improper purpose.” Bradford v.
Roche Moving & Storage, Inc., 147 Idaho 733, 737, 215 P.3d 453, 457 (2009). We note that this
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appeal has been decided on the briefs and that all briefing submitted on Funes‟ behalf was
prepared by an attorney who died during the pendency of this appeal. The purposes underlying
the sanctions of I.A.R. 11.2 would not be advanced by imposing a sanction against the deceased.
In view of Funes‟ limited education and illiteracy, we are unable to determine that he bears
responsibility for the legal arguments advanced on his behalf. For these reasons, we decline to
award attorney fees under I.A.R. 11.2.
IV. CONCLUSION
We affirm the Industrial Commission‟s determinations that Funes suffered a 25% PPD
and that Funes is not an odd lot worker. We deny Aardema‟s request for attorney fees. Costs to
Respondents.
Chief Justice EISMANN, Justices BURDICK, J. JONES and Justice Pro Tem TROUT
CONCUR.
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