Madison v. J.I. Morgan, Inc.

wоrker, concluding he lot” an “odd P.2d652 permanently disabled. totally and was MADISON, Claimant-respondent, Lowell referee’s expressly adopted the commission v. of law and findings fact and conclusions MORGAN, INC., Employer; and J.I. disability payment claimant’s ordered Compensation Workmen’s surety appeal Employer and benefits. Surety, Defendants-appellants, Exchange, grounds, decision on several commission’s allow the including the referee’s refusal to supplement record with employer to Idaho, Special Industrial State when post evidence certain Indemnity Fund, Defendant. con- permitted so. We was to do claimant prohibit- erred in No. clude that the commission 16895. taking the timely from ing Supreme Court of Idaho. re- Kerby. We deposition of witness proceedings. for and remand further Sept. verse 1988. Rehearing Dissent on Denial of Dec. can be summarized as follows. The facts worker, Madison, a male timber

Claimant Idaho, Meadows, his en- in New has lived he life, except years for 2 tire 1/2 when indus- in the armed forces. The chief gradu- try logging. in the area is Claimant high He the local school 1942. ated from Besides no further formal education. has has been logging, experience work He re- ranches. manual labor cattle training applicable no technical ceived mid- armed in the sérvices while 1940’s. Morgan, beginning work J.I.

Since with has been (employer) claimant Inc. trees, faller, falling job involving timber limbs, measuring and cutting off lengths. log fallen into bucking the timber seasonal, consist- has been work Claimant’s approxi- for 40-hour work weeks ing of year. months mately 6V2 each acci- the industrial October On oc- proceedings to these dent relevant knee, hip, left left Claimant’s left curred. McNichols, Clements, Lewi- Brown & in- arm, back, right ulnar nerve ston, defendants-appellants. Michael him, striking him snag fell jured when a argued. E. McNichols him region pinning in the mid-back Boise, Bills, sur- Office, orthopedic claim- Dr. Law an underneath. Goicoechea Ontario, surgi- argued. Oregon, Lynn practicing Luker ant-respondent. geon M. hip. cally set claimant’s BAKES, Justice. 1984, when prior mid-April, Sometime improved to Madison, logger condition had year old claimant’s a 60 Claimant Dr. might re-employable, snag point fell injured when a years, was of 32 jobsite written evaluations Industrial Bills reviewed hearing, After a on him. employer. positions possible to be for three referee found claimant Commission 142 Jordan,

The came prehearing deposition evaluations from Bill a At a taken by the 1986, 25, Jordan, on March Bill employer consultant the for Industrial Commission’s the Industrial Commission’s rehabilitation Rehabilitation Division. One evaluation consultant, employer testified the that had man,” position “landing was for the of re-employ informed Jordan that it would who, working relatively individual on level man, landing sawyer, claimant a as a or ground, logs unhooks cables from as a road crew worker claimant were limbs of 25-pound them. Use a chain saw job. approached do the date able to As the required. was At ap- that time Dr- Bills (approxi- for claimant to return work proved for job that claimant “with modifi- June, 1984), however, mately claimant ob- However, cations.” sometime he ex- later jected work, to returning and not seek did plained that those mоdifications included a “explainpng] that he not sure that he 10-pound lifting restriction which essential- be able to the return to woods at all ly “landing job the eliminated man” from accident, to work.” After his industrial The job, consideration. second “saw- any did not work any claimant seek yer/logger,” position the was claimant held Thereafter, until spring of 1986. injured. when approve Dr. Bills did not applications each of claimant’s indicated a position. job The third a was as “road 10-pound lifting restriction. He did not worker,” crew which also the use involved any employment.1 obtain brush, of a 25-pound chain saw to fall cut hearing The on claim was held Madison’s Dr. sign limb trees. Bills did not the 30, part prelimi- on 1986. of the June As approval form. matters, nary post hearing the submission depositions of discussed. further Re- reviewing jobsite After the in evaluations ferring to Rule IX Industrial of the Com- April, 1984, Dr. Bills did claimant not see mission’s Revised Rules Practice and November, again time, until 1984. At that Procedure, acknowledged the referee that in 10-pound weight addition to the restric- depositions further would be taken and tion, only that indicated claimant should by parties submitted both the hear- bend, occasionally squat, twist and IX(c) ing. specifically permits Rule exposed should unprotected not be procedure, stating part, “Following (At heights or excessive vibration. the hearing open the record remain shall for March, time of deposition Dr. by deposition of evidence submission Bills had further added the condition that following periods: depositions for all spend the maximum time claimant should on a claimant be submitted behalf of shall hour, any on his feet one time was one days following within be taken 28 date periods with five- to ten-minute rest be- hearing; depositions all be submitted tween, and that claimant should not walk on behalf of defendant shall be taken no rough ground jump down from days following later than conclusion heights.) hearing....”2 of the August, applied prior taking 1. In late claimant had for vides reasonable notice employer’s program, deposition deposition may benefits from retirement be age and when he turned 62 those be- benefits purposes. deposi- for The used testimonial gan. receiving Claimant was also Securi- Social testimony any may tion witness also be ty disability apparently benefits which also con- presented by agreement parties. Ab- age verted Claim- to retirement benefits at 62. agreement, deposition sent such notice or receiving types ant was both bene- retirement may by be used to the extent allowed fits at the time June Rules of Idaho Civil Procedure. “(c) Following hearing the record shall re- 2. The IX reads entire Rule as follows: open main for the submission of evidence "IX following periods: deposition depo- for the all of Evidence "Presentation to be behalf of a sitions submitted on claim- "(a) may stipulate writing Parties the facts days following shall be taken ant within may and the make order or Commission its hearing; depositions date of to be all award thereon. "(b) submitted on behalf of a defendant shall be testimony any may witness days following presented deposition, provided taken no later than 49 offering testimony pro- party hearing; conclusion of the rebuttal evidence Kerby, рresident of timony. Mr. Will J.I. following discus- The record discloses Fausett, Inc., Caryl office Morgan, Rule IX and Mr. regarding sion Inc., by the hearing depositions manager Morgan, testified post additional J.I. surety. No other parties: employer and defendants the oral con- testified at witnesses will be submit- “REFEREE: Claimant 30, 1986. ducted on June ting depositions, hearing, after the of Ochs, Polly Peter- Dr. Dr. Fellman and 23, 1986, Thereafter, July as contem- employer surety Defendants son. beginning of plated and discussed at the deposition possibly will submit the of Dr. hearing, the claimant took 30th June Corbin, depositions of possibly also the Peterson, private deposition Polly of a representatives prospective of or three specialist. Claim- rehabilitation vocational claimant, possibly employers future of nine months hired her some before ant had Trahan, Dobson, Miss Miss and someone rela- hearing his condition to evaluate The Merc in at McCall. had employability. She obtained tive to his apti- general history and administered Surety employer “REFEREE: also 1985. She also September of tude test deposition may submit the of Mr. William claimant’s medi- the bulk of had reviewed of the Jordan Commission’s Rehabilita- claimant to have history. She found cal and Dr. tion Division Bills? significant problem ar- “quite a few real “MR. That’s correct. STEGNER: including ability, low eas” in his vocational dexterity capacity and manual intellectual everyone “REFEREE: And as I advised very age also a scores. Claimant’s record, him, before we went Revised against significant operating factor Rule Roman numeral IX of the Commis- transferable very and he had few skills sion’s Rules Practice and Procedure industry. Ultimately, logging outside the provides depositions now that all on be- post in her she testified claimant half of must be taken within 28 than probable more that she it was believed date, days today’s deposi- and that all perma- totally and not that claimant was tions on behalf of defendants must be nently disabled. ” days.... taken within 49 post hearing depo- Polly Peterson’s After parties “All are advised make sure 23,1986, employer July sition was taken on you problem if coming up, you see a Kerby’s deposi- timely taking noticed get prior approval through a motion or filed a August 1986. Claimant tion stipulation and an order from the Com- prohibiting protective order motion for a scheduling something mission before out- Kerby Kerby. deposing from period, you side that time risk not hearing. previously testified at had having depositions being those admitted to elicit information Employer intended course, except, testimony, for rebuttal that, subsequent establishing from which has to be done on motion also.” offered claimant hearing, employer to the Special Indemnity Fund also indicated compat- employment which was acceptable Nokes, might depose Droge, that it Dr. Dr. limitations, claim- physical ible with Long, employers’ Dr. Jack and the three employment. Af- accept the ant declined to above, i.e., representatives mentioned Miss hearing and the submission telephone ter a Trahan, Dobson, Miss and someone The memoranda, granted the referee of written Merc in McCall. the em- prohibiting motion the claimant’s deposition. matters, taking Kerby’s preliminary plоyer a short from After these gave her that Rule IX Madison The referee stated hearing was held. Claimant or not to determine whether except his own tes- discretion to presented no witnesses rule motion may by any party upon time limits contained submitted motion showing necessity accompanied by showing compelling of the reason for such presentation (New)” evidence. The for the such modification. power shall have the to alter the Commission permit parties post hearing depo- submit referee and the commission erred when sition they precluded evidence. taking Kerby’s depo- Ironically, sition. in the preliminary pro- appeal One errors asserted on ceedings just prior to commencing the permit the referee’s refusal on June the referee ac- Kerby’s deposition violated em- knowledged right parties to sub- ployer’s right hearing. to a fair The em- post hearing deposition mit testimony. The ployer points significance out the of this only condition mentioned in the referee’s by referring post hearing deрo- error to the concerning parties’ statement right to witness, Peterson, Polly sition of claimant’s post hearing depositions take was the time in finding referee relied on claim- depositions limits within which those had to totally deposi- ant to be In disabled. be taken. The referee stated: asked, tion Peterson was she had been “REFEREE: everyone And as advised job Kerby aware of the offer about which record, before we went on the Revised testified, you would have “Would then Rule Roman numeral IX of the Commis- change your opinion as to whether or not sion’s Rules of Practice and Procedure totally permanently he was and disabled?” provides now depositions that all on be- answered, referee, in “yes.” She The her half of claimant must be taken within 28 fact, findings expressly Polly relied on days today’s date, deposi- and that all post hearing deposition Peterson’s testimo- tions on behalf of defendants must be finding per- ny, specifically it to be “more ” days.... taken within 49 Jordan, testimony of Mr. suasive” than the parties “All are advised make sure the Industrial Commission’s Rehabilitation if you problem coming up, that see a you Division consultant. get prior approval through a motion or stipulation and an order from the Com- II scheduling something mission before out- Although employer the raises several is- period, you side that time or risk not sues, issue, procedural the re- we find the having depositions being those admitted permit deposition testimony fusal to the course, except, testimony, for rebuttal taken, dispositive witness to be to be which has to be done motion also.” appeal, of this and we reverse. employer Kerby’s deposition noticed The 11, 1986, which was well within August for IX(c) specifi Industrial Commission Rule 30, 1986, hearing date. days 49 of the June cally provides that, “Following mandatory wording of the clear Under the open record shall remain sub IX(c), employer should have been Rule by deposition mission of evidence ” deposition, Kerby’s permitted to take following periods: .... This Court has order, granting the protective the referee’s held many occasions that the word employer preclude the motion tо claimant’s mandatory, “shall” denotes a not a discre deposi submitting Kerby’s taking and from tionary Moore, act. Gilbert v. 108 Idaho In tion, legal error.3 Moon v. was clear 165, 169, 1179, (1985) (“The 697 P.2d 1183 Board, 548 97 Idaho vestment shall, statute, word when used in a man is (1976) (“where 861, a statute P.2d datory.”); Vialpando, Pierce v. 78 Idaho clear, and provision plain, constitutional 274, (1956); 301 P.2d 1099 Hollingsworth must ‘speaks for itself and unambiguous, it Koelsch, 203, v. 76 Idaho 280 P.2d 415 language interpretation the given be (1955), 1955; reh’g denied Munroe v. Sul ”). clearly implies.’ Mining Co., livan 69 Idaho 207 P.2d (1949); Braun, the referee Sweeley State ex rel. v. the decision of We reverse (1941). pro- 62 Idaho granted 110 P.2d 835 The and the commission which today 3. Our decision case we are is similar to evidence. In this our recent certain ‍‌​​‌​​‌​​‌‌​‌​​‌‌​​‌​‌‌​‌​​‌‌​‌‌‌​​‌‌​‌​‌‌‌​‌​‌‌‍irrelevant BCB, Inc., decision in Hanson v. reversing 114 Idaho order- Commission and the Industrial (1988). 754 P.2d 444 In that case we reversed a ing certain this case with that it reconsider decision of the Industrial Commission and or- evidence included. relevant dered it to excluding reconsider the case after testimony order; rejects the for one the commis- therefore tective we set aside reasons, Supreme in this appropriate final and order mat- sion’s decision ter; that re- appeal remand with directions does not reverse and we Court on reopened permit the em- judge mand to order trial take deposition of ployer to take the witness testimony of witness “because Kerby for to the commission submission say rules he should.” Thereafter, IX(c). Rule pursuant surety has pretext dreamed findings make of fact commission shall new urging the error in failure to allow up for of law based all the conclusions representa- deposition record the com- evidence then before tive, deposition purpose that the remanding mission. In view of our action employer represent- allow that would be to proceedings for further matter ative, Kerby, to “authenticate” a letter order, findings, new conclusion the oth- offering job. he had “make-work” written by appellant, er issues raised which relate things wrong posi- with that There are two primarily to the commission’s decision precisely why are the referee tion and aside, has set now been are rendered rejected the correctly evidence: moot. (1) absolutely no need have There is pro- further Reversed and remanded for to authenticate a document ceedings. appellant. attorney No Cost to by attaching same could done —the on appeal. fees (as letter to an affidavit was done the here) filing the affidavit the and with C.J., JOHNSON, SHEPARD, J., and Commission; and concur. (2) sought to letter authenti- The HUNTLEY, Justice, dissenting. purported job offer that cate was lawyer reading A trial this decision the in existence until was not after good would have cause to wonder whether hearing the in discovery, of close after forgot- some of this have members Court July on had been held the case experience knowledge gained ten their and Kerby, presi- the and Will after lawyers. majority opinion as trial The is already Morgan had testi- dent of J.I. states, nearly everything in in correct it hearing, until the fied at the my opinion, gross wanders into error in not presenta- the had concluded claimant taking аnalysis further, step the one be- July case and of his tion it beyond cause fails to think the rule toas finally real- the defendants until after power, the inherent and indeed duty, of presented a had that the claimant ized judges trial to officers not disability. lot prima facie case of odd by permitting record clutter the witnesses taking properly rejected the The referee testify as to irrelevant or inadmissible deposition stating page appropri- evidence or evidence which is not the record: ate it is in because cumulative effect. is Moreover, particular in this case it majority opinion quite The is correct indication imagine less reliable hard to IX(c) it provides when notes that Rule for wage earning ca- probable of Claimant’s taking depositions the within certain self-serving of em- pacity than the offer a hearing, time limits after and directs that in liti- ployment by involved Similarly, do the officer so. issue, gation very which offer nature, parallel duty is the of a trial years made until almost three was not testimony judge to take the оf witnesses (Emphasis accident. the industrial after in However, presented open court. when a original). judge permit trial refuses to hear or importantly, probably most testimony Finally, of a witness because testimo- foundation, referee’s refusal admit expert exper- lacks even if the ny lacks error, it not tise, would testimony or is of that letter in evidence cumulative witnesses, light of this record. error of other and the trial court be reversible Both we and the referee remand, had the letter Hopefully, upon both the Com- before us and know what it said and the mission its hearing recog- officer will legal referee dealt effect it would nize the majority has not ruled that have it were introduced into the offered, record the evidence accepted when into by way deposition evidence, affidavit change will the outcome of this effect is such change as not the out- case. merely Commission should re- come. The conclusion of the ceive the referee read evidence and then redecide the pp. follows at 25 and case. And it appear 26: that if there nothing beyond established what has here- All defendants have also made much of presented, tofore been the outcome will be apply Claimant’s failure to for work with precisely the same the hearing because ex- Program. U.S.F.S. Older Worker’s correctly perceived aminer the value of the

However, program as described obvi- when evidence' case first decided. ously general falls outside the labor mar- fact, just ket. In it is type “make provided

work” or “sheltered work” BISTLINE, J., concurs. sympathetic Larson, employer which BISTLINE, Justice, dissenting. authority well-known in the field of worker’s compensation, indicates should opinions Two lying from this Court side purposes be considered for of deter- side Volume 98 Reports Idaho mining permanent See, disability. 2 Lar- anyone should convince that the Industrial son, Compensation, Workmen’s 57.34. § Commission is entitled be strongly com- also, Lyons Special See v. Industrial for embracing mended and adopting the Fund, Indemnity 98 Idaho 403 P.2d findings of fact and conclusions of [565 Referee (1979). Accordingly, the availabili- Naugle, and 1360] likewise the referee’s order ty employment within program denying surety’s reopen motion to apply purpose and/or Claimant’s failure to the sole therein, employment does not defeat a establish a “job so-called offer.” Those cases, finding permanent disability of neither of total un- which merited even a men- theory. opinion tion in the der the odd lot which Justice Bakes has authored, are Lyons Special v. Industrial finding Finally, it is noted that the and Fund, 403, Indemnity 98 Idaho 565 P.2d permanent conclusion of total and dis- (1977), 1350 and v. Amalgamated Francis ability by herein not defeated evidence is Co., 407, Sugar 98 Idaho 565 P.2d 1364 potential of employment existence (1977). physical within Claimant’s restrictions. potential It is not the suit- existence Lyons undoubtedly was the most impor- by disability employment able is opinion tant industrial accident emanating measured under the Idaho worker’s com- Supreme from the Idaho Court in the al- law, pensation but the that a years likelihood passed most 20 which have since the gain- in engaged legislation, able to Claimant will be 1971 а sweeping revision of the future, including statutory the activity By way ful in the law. of background, potential keep recognized em- in critical factor whether mind that the authors of ployers actually enlightened legislation passed in hire the Claimant the in will 1971 pertinent light attorneys medical and were three who dedicated field, finding In con- and all also nonmedical factors. and three dedicated to cluding purposes herein is an odd lot that Claimant benevolent industrial acci- worker, occupational law, has dent and disease the Referee considered even though attorney it is ex- one generally repre- factor and concluded that most has surety. tremely unlikely any attorneys, George sented Those Greenfield, Kaufman, any would hire the few Sam and Jack Claimant Bar- only potentially positions bringing in rett not were instrumental in suitable evidence light physical legislation, non- but all his obvious and about three part physical played Lyons case. limitations. luck, opinion, porary good superhuman Not mentioned in the Court’s or the ef- fact, major proposi- a matter of forts of the claimant one of the to rise above his urged crippling handicaps. upon tions of law us in that case was position the awkward of the Industrial recognize did doc- Court the odd-lot party Commission that it was both a to trine, although opinion made but one and same action at the time tribu- Moreover, reference to Larson’s treatise. nal which had to render a decision which the the evidence Court reviewed and said of against could guardian be itself as the it, “... the evidence as a matter lawof Special the Industrial Indemnity Fund. It places appellant within the odd-lot cate- was not until legislature 1978 that gory.” Citing cases, stated, the Court problem by placing solved that the industri- undisputed is “Where evidence is special indemnity al manager fund under a reasonably susceptible interpre- one appointed by Depart- the director of the tation, a claimant whether falls within the ment of Administration. I.C. 72-324. It § category odd-lot is a conclusion of law.” is in all likelihood not a mere coincidеnce 98 Idaho note 565 P.2d at 1354. legislation that the 1978 shortly followed again In the case Francis the Court re- Lyons appeal opin- on the heels of the evidence, stated, again viewed “We ion, probably attorneys the three who conclude as a matter of law that the claim- brought legislation about the 1971 had no prima ant has made out a facie case he part in passage small stat- placed category.” should odd-lot ute. 98 Idaho at 565 P.2d at It readily As is observed in Lyons opin- noteworthy that Bakes did not dis- Justice ion, the deciding Court confined itself to sent in In Lyons, Francis. his dissent was presented, the issue which was whether or that, solely although agreed on the basis he not the recognize Court would the odd-lot conclusions, with the factual Court’s Although doctrine. our Lyons opinion opined doing, so he that the Court so indicate, does not so the Court did not sua thought, performing fact-finding sponte doctrine, create the odd-lot but had function; however, he conceded that “the urged that doctrine appel- it question ques- line between a of fact and lаnt, represented by Greenfield, Mr. tion of law is often obscure.” 98 Idaho at Kaufman, appearing as amicus curiae. 407, 565 P.2d at 1354. Mr. Kaufman’s brief on rehearing1 cited to and relied cation and definition of the odd-lot doctrine: total disability may be found in the case ‍‌​​‌​​‌​​‌‌​‌​​‌‌​​‌​‌‌​‌​​‌‌​‌‌‌​​‌‌​‌​‌‌‌​‌​‌‌‍that market. of workers capacitated accepted doctrine which is Under the “odd lot” any ^[*] well known branch of the labor in will not ^[*] who, for virtually Larson’s work, ^[*] while be employed are every jurisdiction, ^[*] not treatise for so altogether handicapped ^[*] regularly appli- ^[*] in- sion be the first to affirm. But not be. has made the “factual conclusion” is not the Mr. Madison is in the odd-lot language sion on the claimed error of one would think that Justice Justice Bakes would reverse the commis- In Mr. Madison’s industrial employer itself of Justice Bakes Supreme and in the from Court but the commis- first the in instance which category, injury Bakes Lyons) “prohibiting so, (per case, not to would that the it

The essence of the odd lot test is the Kerby,” saying the witness also to probable dependability with which claim- excuse, flimsy bolster this “when the claim- competitive ant can sell his services in a permitted deposi- ant was to do so [take market, by labor undistorted such Polly parties tion of All three Peterson].” booms, counsel, factors as business sympathy through Stegner, Messrs. Herz- friends, feld, particular “stipulated or tem- deposi- and Luker that this reasons, opinion opinion September 1. For unknown the 1977 found is available in 23 I.C.R. in Volume 98 Idaho does not show that it issued rehearing granted. had been The initial after employees past had that being in lieu of the witness We have tion is taken I if that it be have done that. And feel he would appearing at the working, serious about pursuant to the Idaho Rules of Civil have been taken something have looked for fur- adopted by the Industrial we would Procedure as done, possibly taking any testimo- ther that he could have Prior to Commission.” sweeping working out on hearing, shop the Ref- ny at the June 30 “live” submitting will be houses. eree stated “Claimant hearings of Dr. depositions, Tr., p. 88. Ochs, Polly Dr. Fellman and Peterson ...” Kerby Mr. said no more Significantly, hedging example an correctly states that than that. It was

Justice Bakes say that 30,1986. Specifically he did not perfunc- He at its best. was June to do some- be hired torily Kerby that Mr. testified at the Mr. Madison would adds Implicitly, questioned he having thing, anything. hearing, Huntley’s Justice dissent and, significаntly, attention, sincerity, gives Madison’s brought that to his BUT Mr. suggestion up was a inkling of an as to he came with his reader not an iota best serious about if Mr. Madison was Kerby’s testimony Mr. concerned. what some- have looked for nothing. might working, reader well “we would Absolutely thing Kerby gave Mr. his name and ...” surmise that benevolent

reasonable physical ing, and wanted to know torney, who old, to the witness stand. heard was Now, injured Kerby benefits he was to be reinstated Fairness demands that a candid world employee for his examined when was so. Mr. Madison mission’s cated case and give (hypothetically): to show Kerby Over amine what a casual sat down. This gan, Inc. He did so. Mr. testify testify that Mr. Madison ordinary setting, faithful, objection, Mr. as it his wanted on whose behalf Justice Mr. Madison was interested put on the stand. One company right condition, of 30 hearing room at this by presumably that the familiarity with Mr. Madison’s presented person person would obviously took a real live witness say years, eligible for from J.I. in some is the same identical Mr. reopen and its was establish now what seem to the stand as a witness nearly who would after which broken-in-body It is Kerby was allowed A second reason was reading knew and more so present at the com- highly quietly capacity. He did opportunity to am, that, 62-year old and surety; himself as the me, being had not asked what, wholly adjudi- why he did not company’s at- shows. reason was unusual Bakes will very time. rehire his eschewed. he stated sitting he was in retir- former if Mr. here. Mor- Ker- any, say ex- tures of answer was pictures which woods even we have Madison ant’s Exhibits priate you have surface able al dusk. What ting wood told me that We have there, Viewed thought, that’s And that would be And and I that’s what I talked and rehire Mr. spying: happen. feel forthrightly to take ^{[*] [*]} he I he said ‘Yeah. time, Mr. and then as a benevolent says, did Mr. Madison which just and I— four up just to the road Kerby, well, happen ^{[*] [*]} a dirt crew that to we only —there quite often out there. perspective, Madison, explained felt that however, given was ‘Gee, days I did. Mr. Lowell and Mark it, Caryl and different through to create a said, place I heard— if he is hiding in the brush at ^{[*] [*]} Kerby had taken before good way to do sneaking who that’s immediately was if that was the have a Mark, Lowell’s “Lowell, foreman out employer, ^[*] to mark Defend- ^[*] a wood it it.” But this a nice wood Mr. Mr. was getting color through job hearing, pic- ^[*] much later ^[*] Kerby was works out as soon as his after that Kerby log prints of wanting ‍‌​​‌​​‌​​‌‌​‌​​‌‌​​‌​‌‌​‌​​‌‌​‌‌‌​​‌‌​‌​‌‌‌​‌​‌‌‍pictori- it, and people of Mr. appro- IAnd wood, there, there, case, ^{[*] [*]} log.’ you, son, get- did coming up tonight.’ out to cut it That I weight wedges don’t what know why I pictures. was went and took the wedge, sledge not a —or hammer— Tr., pounds. some of them are six None of Kerby 94-95. Mr. narrated prints: lighter them are than that. Some of sequence pictures

... of these show eight them are pounds. that had a Then Mark part time, he shovel and dig his asked him son out underneath him quartering asked to start the block. logs so the get saw bar wouldn’t into point pictures At that some show Then, picking up pieces the dirt. he was hammer, with that —him and that’s pic- out of the road. And there is two what he did. sequence tures depicted Tr., p. 95-96. piece bark probably that was a foot or Kerby brought volunteered he so long. wide and about feet six camera, with him a “video but it was too Q. you Do know how much thаt pictures.” dark take He learned this weigh? would experience, maneuver from “I think it guess A. I would that would Oregon Comp people stems back to that we weigh pounds. I I don’t know. pictures people had take that said guess weigh would have to it would working, got couldn’t work and I were and about that. It long. was six feet He Tr., p. the idea.” 102-103. picked explained, He up upon it and it log set on the “I just inquisitive any- was more log. Then, and then threw it off the I than said, did shoveling thing.” began he for Mark he He when to volunteer elabo- some asked him to. ration, objection, was met with ‘Well, said, you attorneys put

Then Mark one three can start splitting wedge, these.’ question him,2 And took a attorney not even the turn, Well, exactly Mr. Madison at his told this what A. I halved—I think I three halved quartered was all and I one of them. about: bark, you Q. What tell about the could us Well, up my get went I with son to wood. He that? about go along wanted me to case him in Well, Kerby exaggerated I A. think Mr. him, something know, happened you weight Dry weigh of the bark. bark doesn’t company. As far as what Mr. me saw anything. put up I much And it on the—I here, doing why, six-yeаr-old kid could have edge log one end raised of it put any did it. So I don’t see where I forth over, pushed then and any lifting it on so there wasn’t something effort did I shouldn’t have. any actually, effort I wasn’t —much to— shovel, regard Q. With to the use of the weight. all the you doing what were there? Now, just Q. was bark? have Did it just shovel, A. I had a short-handled I any of the wood it? digging was just plain dirt out from under so No. It A. bark that fell off go log. through saw wouldn’t hit the rocks. heavy you Q. you might Q. How do think it have How much dirt were out of been? you pulling Were there? dirt out? thing might actually A. whole have A. Yes. Just a bit on little shovel weighed pounds, but I lift never did pulling throwing away? it out and it weight; log put up end all that of it on the you Q. very long? Did do that for pushed and then over. it on A. No. you doing Q. Is the kind of work that long? Q. How up anything you on the there like what do out just think I A. I did it to I two of them. job Morgan? at J.I. bet it wasn’t over five minutes. said, My gosh, any could A. no. Like kid Q. splitting What about the wood then? fact, daugh- my did have what I did there. In either, A. Not much effort here it because or—yeah, daughter-in-law my split ter — easily. split so preg- and a wood she’s seven half months Q. pretty dry itWas wood? nant. dry big pretty A. Yeah. It was and it had a while, you get Q. Do like to out once in a it, pitch just you put wedge seam out of the house? tap just apart. it and it fell Why certainly. A. heavy Q. you How maul was the were you try things Q. Do and do around using? house? seven-pound A. think it Oh, I was a to, maul. try yes, A. I do Of what I can. you you course, Q. many Do recall about how there are some limitations to how split? I much can lift and so forth. surety, candidly Kerby August stated of Will retained who Idaho, pictures Meadows, that he had seen the until the New at Inc., morning day hearing. Morgan, at a.m. offices of J.I. 11:00 (Mountain Time). I Daylight expect to Almost one month after the June 30th Kerby inquire of Mr. at that time of the Boise, Morgan counsel J.I. particulars job offer and what July letter to sent this counsel response to that offer is. Madison’s Madison, copies for Mr. thereof to Mr. expense having go Rather than Kerby representing and counsel the I.S.I.F: simply deposition, prefer I would writing I you my am to inform present stipulated to the commis- facts client, Inc., Morgan, J.I. intends however, your sion, po- I can understand client, offering your will be Lowell Madi- you unwilling agree if arе sition son, I job. While do not have all the proposal. let me know at such a Please particulars job, you can relate to you your opportunity earliest employment that the offer is for full-time willing agreed stipulation into an to enter per Caryl Will hour. $5.85 of facts. provide tell Fawcett me can that, Mr. Madison was employment day within his limitations. I en- One earlier than Kerby: copy from Mr. close a of the notice of handed this letter it, leaning you quite just Q. if I I was Do rest bit? A. Sometimes bet; here, dig just You correctly. Right A. work little while or more I was recall a little around while then rest. right leaning there. or less shovel pictures you Q. Some those there where Tr., p. 112-115. standing you, were with a shovel next to what you doing there? exhibit, A defendant’s the case-notes of employment physically into if he is able Jordan, on, Mr. early show that June work, to handle the and he reiterated personal Jordan made visit at company would make modifica- offices, company and verbatim those tions, possible, where to assist the claim- he, notes disclose that returning ant tо work.” “spoke Fawcett, with Carroll office man- thought This eventually altruistic materi- ager- Carroll indicated that the com- alized into a written offer handed to Mr. pany willing to take the claimant back by Jordan, Kerby by Madison Mr. more than two Mr. examined defendants as a witness, litigation years later and after the was all defense who had been constant concluded, employer, through treating physician, Gary but touch with the Dr. with Bills, Kerby, passively watching gave testimony: its Mr. not Madison, surety battle Mr. as is the usual Luker, Dr. Lynn Bills later in a letter to case, endeavoring employ- to defeat its attorney, the claimant’s described other compensation by pictorial ee’s claim sur- difficulties, continuing difficulties and testimony. veillance and coun- Claimant’s saying only lift claimant could protective quickly sel moved for a order. pounds and would need to find work where could stand and sit discretion- The commission’s referee allowed coun- arily. And he did not believe that adequate briefing, following sel time for claimant would ever return to his back granted, which the Order was the recоrd logging work in the industry. stating part: Jordan, 25, Deposition of William C. March testimony allegedly to be adduced 1987, p. In 4-5. the record also as Exhibit apparently will indicate that Claimant 2 in deposition the Jordan is a letter of accepted has been offered but has not 28, 1985, October to Mr. Madison’s attor- employment by Employer suitable since ney surety’s representa- and to the claim hearing the time of the of this matter on tive, part one of which recounted an exami- June by Tregoning, nation claimant Dr. Boise, orthopedist in whose conclusion was argued Claimant has that the admis- very “that he would be hesitant to antic- evidence, sion of which did not such ipate that the claimant would return to the come into existence until after letter, logging industry.” That a full seven irrelevant, hearing, unfairly would be prior months to the in June where prejudicial, contrary orderly pre- to the testified, Kerby Mr. prior and nine months evidence, unethical, sentation of and attempt Kerby testify by to the to have Mr. ultimately protraction necessitate deposition, contained this information: proceeding of this for surrebuttal apparently The claimant was next seen Claimant, disadvantage par- to the July Dr. Bills on 1984. At that ties and the Commission. time, Dr. Bills noted that the claimant R., p. 115-116. problems multiple had continued afield, goes way far Justice Bakes injuries compounded by which were his him, justices he de- two other with when spondylolysis. Dr. Bills thoracolumbar following hearing pre- for the clares noted at that time that he did not believe testimony right sentation of oral the claimant would to return to be able deposition testimony later take included logging industry and declared the already Kerby who had testified. Mr.. medically stationary. claimant Dr. Bills also stated that he believed that The discussion between referee and all claimant could do modified work where place as the counsel which took June sitting standing would be discretion- 1986, hearing opened had to do ary. deposition testimony expert, lay witnesses, certainly did not include a ^{[*] [*] [*] [*] [*] [*]} lay present then witness who was Dr. the claimant’s limita- Bills reiterated testify. ready testify, and who in fact did Luker, Lynn the claim- tion in a letter to opportunity say a full had attorney, ant’s in December 1984. At say, and he whatever it was he wanted stated, past that time he ‘In the we have did so. encourage attempted to Mr. Madison’s 30, 1986, work; however, this would

Far in advance of the June return modified work where he could before the referee the defendants have to be discretion, or stand at this do caused to be taken the of Wil- sit (Bill) him to not believe that this would allow liam C. Jordan. On March clerk, previous return to tory positions, work as a timber cashier clerk faller. Because of the gas positions pe- combination station attendant hip discomfort the left and the thora- riodically available.

bration.’ be limited bend In work. do not believe that he should ‍‌​​‌​​‌​​‌‌​‌​​‌‌​​‌​‌‌​‌​​‌‌​‌‌‌​​‌‌​‌​‌‌‌​‌​‌‌‍be columbar and his left unprotected heights determining ^[*] he or twist and could I hand, I symptoms, ^[*] believe to maximum of 20 a carry believe his ^[*] occasionally squat. logger’s longevity and the weakness in could ^[*] pounds, nor excessive vi- lifting occasionally ^[*] i.e., degrees, exposed would Commission, ^[*] light in becoming the decision of the commission much favorable to Mr. Madison and the not thorough, decision of the was taken and his documentation admitted as exhibits. defendant’s The Jordan, only purpose fоr the and an witness when who referee, fair-minded employee showing content, appears to in turn of the Industrial this evidence is person, which is his adopted be testimony a most was a very and logging industry, telephone survey itself, employ- it is demonstrate that the following resulted in the information: surety er and its were well advised Meadows, Morgan Company, J.I. New early time, long before the June 30 Idaho, presently employees in- has 125 job of Mr. Madison’s search in the New fallers, cluding years two tree 57 and 59 Meadows area. driver, age; 61; aged one truck and Yet, notwithstanding strong such a fac- man, landing aged one background, presented tual the defendants Logging Company Sindt in Meadow- August 6, the referee with an letter hurst, Idaho, employs approximately 50 stating, you “We understand that are now people. They employ landing to 60 one applica- interested in work and in fact made man will They who soon turn 60. also employment employers tion for with other employ equipment operator one who is area_ in this We look to wel- forward about 53 or 54. cоming you employee back as a full time Logging, Lake, Rath Hayden Brothers Morgan, J.I. Inc.” Idaho, employees during hires 100 to 120 skeptic might long A wonder how peak They their season. have no one employment guaranteed crippled to a 60-years age working over them. 63-year nothing old man who knew parts Their man would be their oldest woods, working nothing in the about employee, and he has never been a tree work, carpentry janitoring, parts-chasing, faller. clerking, insofar as this record shows. Co., Merritt Brothers Lumber Priest Riv- skeptic might A also wonder how $324 er, Idaho, indicated that are a saw- monthly pay equates check for 48 weeks loggers. mill They and contract don’t surety obliged pay with what anyone have over working for them. permanent under an of total award disabili- They people working do have two older ty. doing cleanup carpentry for them ruling work. The referee did not err in that the of Mr. not al- The above information seems to indicate lowed. When the referee was called logger’s job longevity, that a especially again issue, pass on that the answer was falling, in the area of three In is limited. again negative. a correct Justice Bakes in essence, very 60-year-old one finds few opinion provides the entire text of Rule engaging falling individuals in tree as an 2, removing any IX in his footnote reason occupation logging in the Also business. repeat for me to it. Justice Bakes omitted say people it is safe to that one finds few explained to advise that the referee age occupations 60 in over other rule, purpose non-purpose and the logging general. business well: The claimant would be able to drive to employment. purpose allowing the McCall area for In con- the record to area,

tacting employers open in the it was remain is not so parties may manufacture, learned that counter work such as inven- that the soli- cit, evidence, of the law gather or even but rather This is the intent but, amount of time for generally speaking,' to allow reasonable the manner in scheduling post-hear- compensa- engaged сounsel usually ing depositions, those of doctors practices. their tion field conducted busy full need schedules who More and more there is resort to submis- significant depo- advance notice for such reports personal sion of medical lieu of Allowing deposition testimony sitions. appearance deposition of medical ex- contemplated by such as Defend- perts. particularly It saves time and Surety/Employer would ants herein money few claimants can afford. —which prolongation proceeding lead to of Few cross-examinations will confound possible rebuttal and surrebuttal of expert the medical and in most cases his parties. might report just as well be his testimo- R., p. 255-256. ny- which That statement is a truism with }jc s)c j|c j|c ¤ 4s any practitioner prac- with the conversant might While claimant be able to do some- quickly tice in this area of the law would thing worthy compensation, of he is real- thing agree. Kaufman said the same Sam ly so disabled that a reasonable stable knowledgeable he thorough brief not exist market for services does ease, supra. An provided Lyons us in the gainful employment and all avenues of law, expert body in this he acclaimed reasonably to him. are closed in wrote back 1976: appear typical to have here a “odd We experts by are seen and heard Medical case; handicapped lot” a man who is so unique with the Industrial Commission by physical impairments, by not They experts regularity. are —albeit skills, age, lack of education usable opinions. Their there is conflict in their employed regularly in that he will not be comparable to the man on views are not market. the labor to have the corner who claims witnessed an accident or overheard a conversation. percent The referee this case was appearance and demeanor of these assessing highly suspect cir- correct in experts totally is immaterial to their tes- job Kerby’s cumstances of Mr. offer: opin- in their timony. Some are liberal Moreover, is particular in this case it judgments, ions and others are сonserva- imagine hard to a less reliable indication tive, shifty eyed prevaricators none are probable wage earning ca- of Claimant’s jury, a court or a Commission who self-serving offer of em- pacity than the might suspect perjury. by employer in liti- ployment involved It immaterial therefore that is issue, very gation on that which offer expert see and hear these Commission years until three was not made almost weight given judge to be witnesses the industrial accident. testimony. their R., (emphasis original). p. 256 Jjt S)C ‡ J)! SfC Bakes makes no attack whatever Justice standpoint, although un- practical From a referee’s decision. He on the written opposing party has the deposition der for the simply would reverse and remand cross-examination, very right there is purpose reopened that the case “be sole depositions and little distinction between permit to take the Obviously the medical reports. medical Kerby, etc.” As I read his of witness of this case were submitted evaluations directions, the referee and he dismisses by report only сonsent of counsel itself make have the commission desired, been and had cross-examination findings of fact and conclusions new not have been done. Further- this would view, are to my In those directions law. more, compensation law the intent of the and needless exercise. carry out a futile summary and process to make the as promised relief” The “sure and certain may as far simple reasonably as be and evaporates. compensation law the worker’s possible in accordance with the rules 72-708) years old on Octo- Mr. Madison will be equity. Code {Idaho Hopefully may day that ber 1. see the DISSENTING ON DENIAL OF brought his case is to a conclusion. PETITION FOR REHEARING tom-foolery Back of all of this about BISTLINE, dissenting Justice singular noncompliance with a rule is the Rehearing. denial of Petition for testify, having fact that Mr. did granting There are two votes for the pleasure done so at defendant’s and absent rehearing requested has been any objection. Similarly, objection no claimant, Madison. Under the rules filing Kerby’s made to the of Mr. affidavit. however, Court, majоrity opinion, 3-2 on a The referee saw it in the file. The referee rehearing granted unless at will it, commented on and those remarks are set majority person least one votes Every out herein. I saw it the file. rehearing. probably The rule is sound member of this court knows its content. requires a generality, as a but the rule job. We all know of the belated offer of a flexibility. My own certain amount of that, best, We all know it comes from practice by the other which is well known (and employer, Morgan perhaps former J.I. Court, the members of the is to honor surety, regard up the in which that is rehearing request my for a even vote them, certainly criminally or moral- not though time as a at the member business), ly wrong, just facially and is an persuaded. I majority I doubt that can be sympathetic employer, offer from a Lyons, reflect, As the Court minutes will and our 406, supra, 98 Idaho at 565 P.2d at 1353. show, opinions my my vote will view that, worst, We all know it was an offer rehearing. has switched on a I do not been belatedly by employer, made a former frailty. see that as a factors, simply was based on economic an The issue which the three-member in offer made the face of evidence which majority this case has been has reversed place conclusion of law would Mr. Madi- serving pretextual and no described as a in category. son the odd-lot The referee proceedings in be- purpose, either further did find that Mr. possibly Madison was not Commission, any on fore the Industrial or a candidate for the in labor market subsequent appeal second to this Court. community, any place else near his com- munity. The rehearing petition function of taken will be of the same his affida- vein as provide opportunity the is Court change thing. vit and It letter. cannot one in this reconsider its decision. Its decision case reverse the was to Commission opinion opened by extolling This the vir- permit reopen hearing, directions to the opinion, tues of this and as Lyons Court’s deposition Ker- the to take the many well and the other cases Francis the by, and for the Commission to redecide Today’s opinion by which have followed it. the case. Thesе directions include submis- majority sets the state of the workers’ deposition to the sion of the Commission. compensation good years. law back a however, Missing, any is direction mandat- that, may portend- it Worse than be seen as ing to receive it in evi- the Commission And, help ing a trend. it cannot but be certainly preroga- dence. It is within the demoralizing to the referee and the com- depo- tive of the Commission to exclude the faithfully pre- mission who followed sition, simply on that it has the the basis cepts by Lyons announced this Court same evidence before it the form of case. letter; previously has de- Commission persist in If three members of this Court germane is not cided that such evidence reversing the commission’s decision previous- has its decision. The Commission us, pretext more such a as we see before ger- ly ruled as much. That which is not months, maybe go by, year, will not relevant. mane is also yet issues there remain to be decided other that, majority I to those submit by surety’s appeal. Ma- raised Lowell bold, they so should should be dison will know that the real issues raised depo- to assert that the surety’s appeal side- reflection continue on the have been relevant, testimony by then put day— for another sition is stepped and aside token, rele- may which he live to see. same so is the letter likewise Then, depositions. vant. all that needs be done cant advance notice for such majority Allowing deposition testimony is to deem the contents of the such as (much contemplated by letter admitted into evidence defendants sure- ty/employer prolon- herein would majority same as the Lundstrom v. lead to gation proceeding Brekke, for rebuttal and 115 Idaho 765 P.2d possible parties. surrebuttal “deemed it clear that defense (Record, 255-256). p. produce entitled to the Reitan as a letter impeaching means of testimony of Bak wonder, I, may The trial bar well as do (115 er.” 671). Idaho 765 P.2d at authority what has now deter- Court evidence, Then with the letter in majori mined that it can dictate to the Commission ty dictates, can decide the case as its will operates. As the rules under which it is litigation prо and the further will known, quite too well Court longed. An over-worked can Commission pages busy with its own rules—883 bound compensation attend to other cases. volume, pages pocket parts. had, rehearing A should be saying majori- am that such is what the could be discarded. ty event this dissent could do. It is not a recommendation. What I recommend is that one member of majority condescend to vote—not that affirmed,

Commission now be that the

point at issue be reconsidered. On recon-

sideration all majority that the is asked to thought do is entertain a as to the second 765 P.2d 667 Surely wisdom of its mandate. one of the LUNDSTROM, Individually; Arnold D. might August three see that the Lundstrom, Individually; Geraldine letter from Mr. to Mr. Madison is Sanchez, Peggy Lundstrom Individual just exactly type of make-work offer Lundstrom, ly; as and Arnold D. (belated, possible) sympa- based but guardian litem and next friend of ad thy particular employer (forgetting of a child, Lundstrom, Kim minor previously played that he had insurance Sanchez, child, Plain a minor Jessica adjustor helping against to make out a case tiffs-Appellants, long-time his faithful employee) ex- tended handicapped to a former worker. Lundstrom, guardian li аd Arnold D. language, The parenthetical, other than Crystal and next friend of tem own, my excerpted Lyons but from the child, Plaintiff, Sanchez, a minor case, 98 Idaho at 565 P.2d at 1363. v. letter, It is though to be noted that the it ENTERPRISES, INC., corpo BREKKE full employment, sug- offers time makes no Cottle, ration; Wayne In dba Merlin’s gestion whatever as to duration. Pocatello; sulation of John Does One points sup- . As unsel out the brief Five, Through Merlin’s Insulation dba porting petition, opinion majority Pocatello; Corporations Doe John denigrates power the inherent of the Com- Five; Compa Through John Doe One mission to an exercise of discretion to inter- Five; Through John Does One nies One pret pointed its rules. As also out in own Five, Defendants-Respon Through brief, the decision of the Commission dents. explained purpose of the carefully rule: No. 15595. purpose allowing the record to open remain is not so that Supreme of Idaho. Court manufacturer, solicit, parties may 26, 1988. Oct. evidence, gather rather to allow even Rehearing Granted March a reasonable amount of time for the scheduling post-hearing

depositions, usually those doctors ‍‌​​‌​​‌​​‌‌​‌​​‌‌​​‌​‌‌​‌​​‌‌​‌‌‌​​‌‌​‌​‌‌‌​‌​‌‌‍with signifi- who need busy

full and schedules

Case Details

Case Name: Madison v. J.I. Morgan, Inc.

Court Name: Idaho Supreme Court

Date Published: Dec 30, 1988

Citation: 765 P.2d 652

Docket Number: 16895

Court Abbreviation: Idaho