Carl I. ROYCE, Claimant-Respondent, v. SOUTHWEST PIPE OF IDAHO, Employer, and General Insurance Company of America, surety, Defendants-Appellants, and State of Idaho, Industrial Special Indemnity Fund, Defendant-Respondent
No. 13535
Supreme Court of Idaho
June 24, 1982
647 P.2d 746
Nor should the fact that the defendant did not seek a continuance be determinative in this case. Although a continuance may have allowed defense counsel time in which to seek out evidence to contradict or impeach the testimony of Mr. Reeder, it would not have lessened the prejudicial impact that resulted to the defendant from the perfectly timed disclosure. Moreover, one may properly wonder how many district judges would actually grant a request for a continuance (and how long a continuance would be allowed) with a sitting jury ready to deliberate? And, that is not to forget the practical aspect of the situation, totally overlooked in the Court‘s opinion. To ask for a continuance can only, and necessarily would, have the automatic effect of heightening and emphasizing the prejudicial influence of the final state witness in the case—and most likely the final witness of the entire trial. Most attorneys of trial experience would make their objection, abide by the rulings, and hope for an enlightened appellate court, a court which is blessed with a thousandfold more time in which to ponder its ruling than is a trial court.
The defendant in this case prepared to defend and did defend the case believing that there was no one who would testify as to statements made by him indicating that he intended to harm someone. He could not, after the last witness had been called, go back and change the theory of his case, decide that it would be better not to testify on his own behalf, or change the manner in which the evidence on his behalf was presented. Thus, the fact that he might have had an opportunity to contradict or impeach the testimony of Mr. Reeder, to my mind does not remove the prejudicial effect of allowing Reeder to testify as a rebuttal witness.
It is not unlikely that the Court‘s opinion today may encourage some prosecutors to intentionally reserve damaging evidence for rebuttal which more properly should be presented as part of the state‘s case in chief. Hopefully other prosecutors will remember that they, too, are judicial officers.
II.
In this case, the defendant was convicted of two counts of assault with a deadly weapon and was sentenced to the maximum determinate term of five years on each count, the sentences to run consecutively. In addition, the trial court imposed a five year sentence pursuant to
I dissent.
John J. Healzer of Hart, Burdick & Healzer, Jerome, for claimant-respondent.
Max M. Sheils, Jr., of Ellis, Brown, Sheils & Steele, Boise, for defendant-respondent.
McFADDEN, Justice.
On January 20, 1972, claimant Royce was employed by appellant Southwest Pipe as a truck driver. He was asleep in the sleeper unit of the truck which was being driven by Don Woodland when the truck hit a frost heave, causing Woodland to lose control of the truck, leave the road and overturn. Royce was rendered unconscious for approximately 30 hours and suffered fractured ribs and a punctured lung due to the accident. He remained in a health care facility in Plentywood, Montana, for approximately two weeks before returning to Twin Falls. Royce returned to work a short time later. In June 1972 he was involved in another accident, but suffered no injuries. He left employment with Southwest Pipe on or about June 30, 1972.
Royce was unemployed for some time, until he began working for Tupperware Company in Jerome, Idaho, where he worked from approximately October 1972 through early 1975. During this period of time he also worked part time for Morgan Lindsey Seed Company in Jerome. After he left Tupperware, he worked exclusively for Morgan Lindsey until February 1977.
Shortly after the January 20, 1972, accident, Royce began to experience severe headaches, underwent a distinct personality change, became depressed, lethargic, and had difficulty with his vision and ability to comprehend.
Between 1972 through 1976, Royce was treated by Dr. Pond in Twin Falls, Idaho. He was also seen on one occasion by Dr. O‘Brien, a neurologist, in Boise, to correct a stuttering problem that had surfaced.
Royce was referred to Dr. Moress, a neurologist, and Dr. Powell, a neurosurgeon. They discovered a colloid cyst and decided that immediate surgery was necessary to remove it. After surgery, in late November 1976, complications arose which required a second operation for removal of a blood clot on December 2, 1976. Following this surgery Royce recovered physically and his headaches subsided. He returned to work for Morgan Lindsey, but his overall mental condition deteriorated and he was required to leave that employment. He has not been employed since February 1977. He suffers from short term memory lapses, some occasional violent episodes, depression and withdrawal.
Royce was referred to Dr. Worst, who continues to treat him. Dr. Worst‘s prognosis is that Royce‘s condition will remain the same. Dr. Moress, Dr. Powell, and Dr. Worst all testified that Royce is totally and permanently disabled from obtaining or retaining any kind of employment. This conclusion is supported by the testimony of Royce‘s supervisor at Morgan Lindsey, his brother-in-law and a vocational evaluator who also testified as to his inability to work.
A notice of injury and claim for benefits was timely filed by Royce on January 31, 1972. The claim was accepted by Southwest Pipe‘s surety and temporary total benefits and the majority of medical benefits were paid continuously to the date of the hearing. On March 28, 1978, the surety filed an application for hearing, seeking contribution from Industrial Special Indemnity Fund (ISIF). The surety also brought into issue the extent, if any, of Royce‘s permanent disability.
ISIF filed an answer on April 20, 1978, denying that Royce was permanently or temporarily disabled and stated that ISIF had no liability since Royce was not suffering a preexisting permanent physical impairment at the time of the accident.
A conference was scheduled on January 11, 1979, but was vacated upon motion by the surety. On January 5, 1979, an appearance was entered on behalf of Royce by his attorneys. Prehearing statements were filed. A hearing was scheduled on March 27, 1979, but was vacated upon stipulation
On August 27, 1979, the Commission issued an order dismissing ISIF. On October 9, 1979, the Commission issued its findings of fact, conclusions of law and award. The Commission found that Royce was totally and permanently disabled and that he suffered from a colloid cyst which was a condition preexisting to the January 20, 1972 accident. The Commission ruled that the cyst did not constitute a physical impairment as defined by
Four issues are presented on appeal. (1) Is the appeal timely, (2) did Royce have a permanent physical impairment within the meaning of
The Industrial Special Indemnity Fund (hereinafter referred to as ISIF) argues that the appeal must be dismissed because the order dismissing ISIF was entered on August 27, 1979, and this appeal was not filed until November 13, 1979.
“A decision of the commission, in the absence of fraud, shall be final and conclusive as to all matters adjudicated by the commission upon filing the decision in the office of the commission; provided, within twenty (20) days from the date of filing the decision any party may move for reconsideration or rehearing of the decision, or the commission may rehear or reconsider its decision on its own initiative, and in any such events the decision shall be final upon denial of a motion for rehearing or reconsideration or the filing of the decision on rehearing or reconsideration. Final decisions may be appealed to the Supreme Court as provided by section 72-724, Idaho Code.” (Emphasis added.)
While the commission initially dismissed ISIF by order dated August 27, 1979, it appears that they did not consider the order final because in its findings of fact, conclusions of law and award, dated October 9, 1979, the commission dismisses ISIF and bases that dismissal upon those findings of fact. Therefore the August order was not a final order and the appeal is timely.
The court is asked once again to interpret the meaning of permanent physical impairment as contained in
“‘Permanent physical impairment’ is any permanent condition which reasonably could constitute a hindrance or obstacle to obtaining employment or reemploy-
ment. A hindrance or obstacle to obtaining employment or reemployment would exist if the preexisting permanent condition would reasonably cause a potential employer to be reluctant to hire a person because of concerns such as the person‘s preexisting condition made him a less capable worker, a greater risk in terms of getting injured, or a greater risk in terms of the amount of potential permanent disability that the worker would suffer from an injury. Actual hindrance to one‘s attempts at obtaining employment is not required.” 629 P.2d at 701.
The question presented under the facts of this case is whether a reasonable employer would be reluctant to hire Royce. In footnote 3 to the Gugelman opinion we stated, “[t]he ISIF points out that many of the states require that the employer have knowledge of the condition for the ISIF to be liable. In this regard we need only note that Idaho has no requirement of such knowledge and we will not judicially impose such a requirement.”1 We adhere to that holding, that employer knowledge is not a requirement to constitute a preexisting physical impairment. However, to constitute a “hindrance to employment” the condition must be manifest. “Manifest” means that either the employer or employee is aware of the condition so that the condition can be established as existing prior to the injury. The use of this definition is within what this court stated in Cox v. Intermountain Lumber, 92 Idaho 197, 200, 439 P.2d 931, 934 (1968).
“This court and the parties agree as to the ultimate purpose of the indemnity fund. Prior to its creation, an employer who hired a handicapped worker was subject to the responsibility of paying for total permanent disability compensation to an employee rendered totally and permanently disabled because of his preexisting handicap coupled with a subsequent industrial injury. See: McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068 (1921). The fund was established to relieve an employer of this burden.
The underlying policy of the fund is to allow an employer to hire a handicapped person with the obligation only to pay compensation for an industrial injury to the handicapped person such amount as the employer would have had to pay an employee who had not been handicapped, with the indemnity fund assuming responsibility for the balance of the total permanent disability.” (Citations omitted.)
See also, Gugelman, supra. If the employer has knowledge of the preexisting condition he would not be discouraged from hiring the person knowing that under
“employer and surety shall be liable for payment of compensation benefits only for the disability caused by the injury or occupational disease, including scheduled and unscheduled permanent disabilities, and the injured employee shall be compensated for the remainder of his compensation benefits out of the special industrial indemnity fund.”
If the employer does not have knowledge of the preexisting condition, but the employee does, the employer will not be burdened by the lack of knowledge because it can be established that it was a preexisting condition thereby invoking ISIF liability. However, if no one knows of the condition it could not influence an employer and cannot be considered a hindrance to employment. Therefore, we hold that a preexisting physical impairment within the meaning of
Although the Industrial Commission found that the colloid cyst was undoubtedly present in claimant‘s brain prior to the January 20, 1972 accident, nonetheless it held that it did not constitute a physical impairment. The Commission stated “that the evidence presented in this case indicates
The Commission applied the subjective test, which was rejected in Gugelman and Curtis, in its determination that Royce did not have a preexisting physical impairment. However, under our holding, the Commission did not err since claimant‘s condition had not manifested itself prior to the January 20, 1972 accident, it was not a preexisting physical impairment within the meaning of
We find no abuse of discretion in the Commission‘s denial of the surety‘s motion for a continuance of the hearing to obtain the deposition of Dr. O‘Brien. The surety filed its application for a hearing with the Commission on March 28, 1978, but the hearing was not held until August 9, 1979. The Commission determined that this lapse of time was ample for the surety to have obtained the deposition of Dr. O‘Brien if it felt the deposition was necessary and that the surety had already produced a great deal of evidence relative to the relationship between the accident and the claimant‘s disability. We find no abuse of discretion.
The Commission did not abuse its discretion in awarding claimant attorney fees.
In this appeal the Commission held that claimant Royce was totally and permanently disabled and entered its award on that basis. The Commission also ruled that the colloid cyst from which claimant suffered did not constitute a physical impairment as defined by
Basically, this was an appeal by the surety to shift a part of the financial burden of Royce‘s award from the surety to ISIF. Royce was thus an unwitting participant in this appeal wherein he had to protect his position by being represented by counsel, yet had no chance of gaining from the litigation. In such a situation, it is only proper that his request for attorney fees on appeal be granted. Although attorney fees were not requested in claimant‘s brief filed with this court, they were requested at oral
The order and award of the Industrial Commission is affirmed and remanded to the Industrial Commission for determination of attorney fees. Respondent ISIF is awarded its costs. Royce is awarded his costs and attorney fees for this appeal.
DONALDSON, J., concurs.
SHEPARD, J., concurs in the result.
BAKES, Chief Justice, concurring in part and dissenting in part.
I concur in all of the majority opinion, except that portion at the end granting the claimant Royce attorney‘s fees on appeal. No timely claim was made for attorney‘s fees by claimant as required by Idaho Appellate Rule 41; therefore, I would deny the award of attorney‘s fees. Otherwise, I concur in the majority opinion.
BISTLINE, J., concurring and dissenting.
I.
Although I join the Court‘s opinion wherein it sustains the trial court‘s award of attorney‘s fees and grants attorney‘s fees on appeal1 to claimant, I cannot agree with the Court‘s holding that Royce did not have a preexisting permanent physical impairment within the meaning of
In support of its decision, the Court relies on and quotes from Curtis v. Shoshone County Sheriff‘s Office, 102 Idaho 300, 629 P.2d 696 (1981). Better, so it would seem, the Court should at least give equal attention to the contemporaneous and slightly later case of Gugelman v. Pressure Treated Timber Co., 102 Idaho 356, 630 P.2d 148 (1981), in which this Court further refined the definition of permanent physical impairment. In Gugelman, the Court stated:
“As readily seen, the version of the statute which is our concern (pre-1978), on its face does not define ‘permanent physical impairment’ as a condition which has been a hindrance to obtaining employment. Indeed, such a reading would make the last part of the sentence, ‘or to obtaining reemployment if the employee should become unemployed,’ totally meaningless. This phrase obviously contemplates I.S.I.F. liability where the preexisting condition is such that it reasonably could be expected to affect future attempts to obtain employment, but where that exact situation did not arise and has not arisen. The test apparently suggested is that the worker might well be expected to encounter difficulty finding another job in the event that he did become unemployed. Without this phrase, the statute could possibly be read as covering actual experiences in obtaining employment; with it, however, the intent obviously is to define ‘permanent physical impairment’ as based on the effect the condition is likely or reasonably anticipated to have on obtaining employment. This reading also prevents I. S. I. F. liability from being premised on the fortuity of a claimant‘s good or bad luck in obtaining employment.” 102 Idaho at 358, 630 P.2d at 150-51.
To my mind, the views expressed by Chief Justice Bakes, concurring and dissenting, are far too technical and, I might add, somewhat in conflict with those expressed recently in State v. Dennard, 102 Idaho 824, 826, 642 P.2d 61, 63 (1982) (Bakes, C. J., dissenting).
“The I. S. I. F. points out that many of the states require that the employer have knowledge of the condition for the I. S. I. F. to be liable. In this regard we need only note that Idaho has no requirement of such knowledge and we will not judicially impose such a requirement.” Id. at 360 n. 3, 630 P.2d at 152 n. 3.
While the Court professes continued adherence to that holding, it nevertheless now imposes a requirement that the pre-existing physical impairment have manifested itself prior to the employment; while conceding the verity of Gugelman‘s rule that the preexisting improvement need not have been made known to the employer, it now sees some reason, to my mind not satisfactorily explained, to hold that the employee at least should have become aware of it. The Court is clearly legislating, and in my view eroding the credibility it established by the Gugelman and related holdings. There is no more reason for judicially imposing a “manifestation requirement” (knowledge on the part of someone) than there is for imposing a requirement of knowledge on the part of the employer, which latter action the Court did not take in Gugelman. For certain the statute contains neither of these requirements, yet ‘twould have been a most simple matter for the legislature to have so worded its enactment. Perhaps it may be yet persuaded to do so, but it will be acting against the best interests of the working people and against the overall scheme having for its purpose the employment, and reemployment of those less fortunate who have been dealt less than a physically full hand, which they only discover on the event of an industrial accident which ignites a latent impairment.
In imposing a manifestation requirement the Court reasons: “‘Manifest’ means that either the employer or employee is aware of the condition so that the condition can be established as existing prior to the injury.” (Emphasis added.) By the use of such language it is surmised that the Court‘s concern is that absent some observable manifestation prior to the industrial injury, who, then, can establish that the condition was indeed pre-existing. In this very case, the condition was not known to either the employee or the employer, yet the medical testimony left no doubt that the condition pre-existed the claimant‘s injury, and that the injury triggered the lighting up of the pre-existing physical impairment which theretofore was known to no one. If the Court‘s concern is with other claimants in other compensation cases, is it not true that the claimant or, as in the present contest, the employer and its surety will bear the burden of proving that the condition did in fact exist and did pre-exist the injury? Such speculative worry is true in all such cases, and in civil tort actions, as well, but cannot serve as a reason for the Court‘s imposition of a manifestation requirement.
Similarly, the Court states: “If the employer does not have knowledge of the preexisting condition, but the employee does, the employer will not be burdened by the lack of knowledge because it can be established that it was a preexisting condition thereby invoking I. S. I. F. liability. However, if no one knows of the condition it could not influence an employer and cannot be considered a hindrance to employment.” The Court‘s reasoning is not readily understood. If I understood it, I would attempt a response. I mention only that in the preceding cases, Curtis and Gugelman, we heard argument that an employer not advised of or knowing of the employee‘s disability at the time of hiring, could not be said to have brought himself under the beneficient provisions of
Gugelman recognized that the I. S. I. F. was created for two purposes, “both to encourage the hiring of the handicapped and, as a corollary, to relieve employers of the unfair burden of paying total permanent disability compensation when only part of