Articles Posted in Workers Compensation

By Fred J. Lewis

If you are injured on the job in the state of Idaho, you are going to have to travel to obtain treatment from various health care providers. This is expense adds to the difficulty experienced by injured employees in Idaho. The Idaho Workers’ Compensation Act and rules adopted thereunder recognize this hardship that is placed on injured Idaho workers. Any miles that you travel over 15 miles to a health care provider are reimbursed by the Idaho Workers’ Compensation insurance company at $0.555 per mile. There is a specific travel reimbursement request that you can find on the Idaho Industrial Commission website.

You can also be reimbursed for your meals if you have to travel long distances to get the medical care that you need. You need to keep receipts for these reimbursements which can be up to $30 per day in state and $46 per day out of state.

By Fred J. Lewis

The Idaho Workers’ Compensation Act requires that all Idaho workers’ compensation claims be adjusted by Idaho-based insurance adjusters. This includes all aspects of handling and adjusting the Idaho workers’ compensation claims, including investigation and interviews. The Idaho in-state adjusters must have full decision-making authority, which includes acceptance or denial of the claims, authorization of medical treatment, and the payment of all income benefits.

Idaho workers’ compensation claims also require the management of the injured workers’ medical treatment. This has to be done through the in-state licensed adjuster and not by a case management nurse, whether they are inside or outside the state of Idaho. The Idaho adjusters can consult with doctors or nurse case managers before making their decision but they have to make all final decision in the injured workers’ health care management within the state of Idaho.

By Fred J. Lewis

In its decision, the Idaho Industrial Commission had ruled that because of the Idaho Legislature abolishing joint and several liability, an employer’s negligence was no longer an absolute bar to the exercise of its right of subrogation. The Idaho Supreme Court stated that the Commission, in establishing its “new rule”, the employer’s right of subrogation would henceforth be reduced by its proportionate share of fault contributed to the claimant’s damages. At the oral argument before the Idaho Supreme Court, I argued that the Court should stick with its 50 year old rule set forth in Liberty Mutual Insurance Company v. Adams that was decided in July of 1966. In Liberty, the Idaho Supreme Court had held that an employer who was contributorily negligent in the worker’s injury was not entitled to a right of reimbursement or subrogation in proceeds that the injured worker collected against a third party. The Idaho Supreme Court then referred back to the classic line out of the Witt v. Jackson case: “when the employee or his estate has been satisfied, and the employer seeks to recover the amount paid by him, from such third party, his hands ought not to have the blood of the dead or injured workman upon them, when he thus invokes the impartial powers and processes of the law”. The Supreme Court rejected the Idaho Industrial Commission’s new rule and held that proof of any negligence on the employer’s part that contributed to the injuries to one of their employees kills their right to assert a subrogated claim to the third-party proceeds of that employee obtains in a third-party lawsuit.

The takeaway from this Supreme Court decision is that an injured worker who receives injuries as a result of concurrent negligence from their employer and some third party has two claims. His first claim is against the negligent third party and he can collect on that claim and keep all the proceeds for himself. His second claim would be his Idaho workers’ compensation claim, which he could bring against his employer and their surety and would not have to pay any of the money back that he received from the third party claim, so long as he can prove his employer’s negligence also contributed to his injury. This is a great late Christmas present from the Idaho Supreme Court to the injured men and women of Idaho.

By Fred Lewis

At the oral argument, I argued on Mr. Maravilla’s behalf that Simplot’s subrogated claim was separate and apart from Mr. Maravilla’s negligence claim against IIC. The Idaho Supreme Court held there were only two claims that had been asserted in Mr Maravilla’s case. First was Mr Maravilla’s own original negligence claim against IIC and second, Simplot’s present claim of subrogation against Mr. Maravilla. The Idaho Supreme Court went on to state that a critical component in deciding when claims are the same for purposes of res judicata is that the subsequent and present claims must be one that arises out of the same cause of action and should have been litigated in the first suit. Clearly, Maravilla’s cause of action in his negligence claim against IIC was based upon the October 16, 2011 industrial accident. On the other hand, Simplot’s subrogation claim is based upon Idaho Code Section §72-223 (3) and is derived from Mr Maravilla’s recovery from IIC. The Idaho Supreme Court pointed out that Mr. Maravilla’s recovery, rather than his injury, acted as the cause of action for Simplot’s subrogated claim. Simplot’s subrogated claim did not ripen until after Mr. Maravilla recovered from IIC. Therefore, Simplot’s subrogation claim and Mr. Maravilla’s negligence claims do not share a cause of action. Simplot could not bring its subrogation claim against Mr. Maravilla until Mr. Maravilla had recovered from IIC. 　The Idaho Supreme Court then held that for purposes of claim preclusion, Simplot’s subrogation claim was not the same claim as Mr. Maravilla’s negligence claim against IIC.

By Fred J. Lewis

On December 30, 2016, the Idaho Supreme Court gave injured workers a late Christmas gift in the form of a decision holding that employers that are negligent waive their right to reimbursement on their subrogated claim to the proceeds of a third-party settlement or verdict. In Maravilla v. Simplot, Mr. Maravilla was injured on October 16, 2011 while working at the Don Plant in Pocatello, Idaho. He tripped on a hose that was placed across a walkway and stepped into a nearby sulfuric acid pool. Idaho Industrial Contractors, Inc. (IIC) the contractor performing the repairs on the area where Maravilla was injured, had not built a barrier and so Mr Maravilla’s right foot, upon tripping, went through the plastic placed over the top of the pad by IIC and plunged into the pool of sulfuric acid, causing chemical burns to his right foot and leg.

On February 6, 2013, Mr. Maravilla filed a third-party lawsuit against IIC. This case settled for $75,000. The case was then dismissed with prejudice on January 22, 2015.

By Fred J. Lewis

We, as Americans, love to choose the doctor who will treat us for medical problems. This streak of independence has killed most universal health care or single-payer plans that have been advanced by various politicians over the last 50-60 years. Idaho Code Section 72-432 (7) allows employers to have the first crack at selecting a physician for injured workers in Idaho. Some aggressive insurance adjusters are pushing injured workers toward insurance-oriented doctors who will lean toward telling the Idaho Workers’ Compensation insurance company what they want to hear. The good news is that very few doctors in Idaho will intentionally try to hurt their patients’ Idaho Workers’ Compensation claims. If you are an injured worker in Idaho, the referral made by the insurance adjuster is usually to an urgent care or “doc in the box” physician. They will typically do the initial treatment and attempt to help you with your Idaho Workers’ compensation claim. They may even order diagnostic tests like MRI scans or CT scans, but if these initial diagnostic tests indicate you have a more serious injury, these urgent care physicians are typically helpful in referring you on to specialists who can do surgeries or other types of curative treatment. This is the point in time when you will need an experienced Idaho Workers’ Compensation attorney to help guide you to surgeons and other specialists that are willing to testify in support of your Idaho Workers’ Compensation claim. Don’t let your Workers’ Compensation insurance adjuster pick your surgeon or specialist.

Another tactic used by Idaho Workers’ Compensation adjusters is to send you to one of their independent medical evaluators. They may offer the opinion that you need no further medical treatment. Idaho Code Section 72-432 (1) allows you to furnish your own medical care at the expense of the employer if they do not provide you with reasonable medical care. All you have to do is prove, through medical testimony, that the medical care that you are requesting is “reasonable”. Many injured Idaho workers have to use their own private health insurance to pay for medical expenses after they are injured while their Idaho Workers’ Compensation claim is being disputed. Upon settlement, the private health insurance companies now have a subrogated claim or a right to reimbursement.

By Fred J. Lewis

In Beascoechea v. Liberty Northwest Insurance Corporation decided November 17, 2016 the Claimant was found to be 45% disabled inclusive of his 6% permanent partial impairment rating. At the time of the hearing the Claimant was 68 years old and had told everyone he was retired. The Claimant had Dr. Mary Barros-Bailey PhD. testify on his behalf. Dr. Barros-Bailey opined that the Claimant was 60% permanent partially disabled if the Claimant did not return to work for the pre-injury employer and astonishing enough, testified that if the Claimant did return to work that there would be no loss of labor market access, and wage loss, therefore no disability. Dr. Barros-Bailey was the only expert that testified in the case. It is astonishing that the Claimant was awarded any disability at all in this case given the following:

1. The employer had offered a job to the Claimant and was willing to accommodate his restrictions.

By: Fred J. Lewis

In Linda Doores v. State Insurance Fund, Decided on November 18, 2016, the Idaho Industrial Commission ruled against the Claimant. The Claimant contended that she had injured her hip as a result of an accident that allegedly occurred on July 18, 2012. As she approached an intersection that day, the driver in the car in front of her braked suddenly. The Claimant was unable to stop and crashed her vehicle into the car in front of her at approximately 15 miles per hour. She was wearing a seat belt and the air bag did not deploy in the vehicle she was driving. On September 23, 2012 the Claimant had an MRI scan of her back and it revealed a central disc bulge at the L4-5. On January 24, 2013, Dr. Moreland administered an epidural injection into the Claimant’s low back. The Claimant testified that following the injection her legs went numb, as if they had fallen asleep. This numbness lasted for almost an hour. However, Dr. Moreland’s chart notes did not reveal that the Claimant told him anything about her problems with her left hip. Claimant later had a fusion of her low back by Dr. Doerr. He examined the Claimant again on May 14, 2015 and opined:

“I do not find any medical evidence to support that the patient sustained a left hip injury as a result of her 07/18/12 industrial related motor accident. Based off a detailed history taken from the patient, as well as a detailed review of medical records performed at the time my independent medical examination on 02/28/13, there is no documentation to support the occurrence of a left hip injury as a direct result of the patient’s 07/18/12 industrial related motor vehicle accident.”

By Fred J. Lewis

In the 1990s, I represented a number of Idaho Workers’ Compensation insurance companies, defending claims brought by injured Idaho workers. I would see general practice lawyers bring Idaho Workers’ Compensation claims and not truly understand the value of those claims and not know how to bring together the appropriate experts to support their clients’ Idaho Workers’ Compensation claims. It never ended well.

I know that many of these Idaho attorneys mean well and think that Idaho Workers’ Compensation cases are simple and they should be able to collect these benefits for their clients and negotiate a lump sum settlement agreement which would then be approved by the Idaho Industrial Commission. There are too many traps for the beginner and many of the Idaho Workers’ Compensation benefits will go uncollected. In order to be a successful Idaho Workers’ compensation lawyer, I believe you have to devote your entire practice to representing injured Idaho workers. This allows you to keep up on all the current cases, develop relationships with doctors that are willing to testify before the Idaho Industrial Commission, and be able to know how to package the Idaho Workers’ Compensation claims so that your client’s claim can be presented by the adjusters to their supervisors favorably so that you can obtain the maximum benefits for your client.

By Fred J. Lewis

For many years, Oasis Legal Financial or other similar legal funding companies have provided cash to injured workers who needed money prior to the settlement of their case. These were contingent loans that were not required to be paid back if the Idaho Workers’ Compensation claimant was unsuccessful with their Idaho Workers’ Compensation claim. However, since the Industrial Commission’s decision of January 13, 2012, Oasis and other legal lending services no longer loan money to Idaho Workers’ Compensation claimants.

In its decision, the Idaho Industrial Commission found that Oasis purchase agreements amount to illegal assignments of workers’ compensation benefits, which is prohibited under Idaho Code Section 72-802. In the fall of 2010, the Commission became concerned about the propriety of the Oasis purchase agreements. The Commission ordered an order to show cause hearing to determine the enforceability of the contracts on three different cases based on their own motion. One of my clients had money loaned to him by Oasis. Since the Commission decided that the purchase agreements were unenforceable, the Commission ordered that my client and others with Oasis loans only had to pay back the principal amount that had been loaned to them instead of annual interest that, in some cases, exceeded 120%.