Woodvine v. Triangle Dairy, Inc.
682 P.2d 1263
Idaho
1984
Check Treatment

*1 working jury’s verdict. That confusion

resulted trial court from the fact that the

did consti- jury not as to what instruct compensatory damages

tuted in this case. Shields v. Morton Chemical (1974),

Idaho 518 P.2d 857 we held that given though

even each the instructions improp-

to the jury proper, in effect an

er grouping of them constituted reversible

error. How more we re- much so should damages

verse the be- this case instruct, adequately

cause of the failure to

the obvious confusion found both Court,

trial court and this and the rework-

ing jury upon verdicts based affidavits notice, jurors, taken without when the party opportunity

other denied

attempt to the same elicit information

open court, partic- both where could

ipate.

Accordingly, I dissent. WOODVINE, L.

Richard

Claimant-Appellant, DAIRY, INC., Employer, and

TRIANGLE Compa-

Argonaut Insurance Northwest

ny, Surety, Defendants-Respondents. 14436.

No.

Supreme of Idaho. Court

7,May 1984. July

Rehearing Denied *2 Gibala, Boise, claimant-appel-

Dennia lant. Barrett,

John W. and Michael Grover Moffatt, Thomas, McPeek Barrett & Blanton, Chartered, Boise, for defendants- respondents.

DONALDSON, Chief Justice. 14, 1974, working November while

On Inc., Triangle Dairy, Richard claimant injury. Timely Woodvine sustained back given to the em- notice of the was injury, surgery ployer. As a result of this performed upon on November was claimant 21,1976. 28,1977, April Tregoning Dr. On Triangle Dairy’s surety, wrote a letter to Argonaut Company, Northwest Insurance in which rated he claimant at a medical Argonaut prepared 10%. compensation agreement based on this rat- ing. signed by claim- ap- ant and the Industrial Commission proved it on 1977. 29, 1978, August Tregoning

On Dr. in- rating Argo- creased claimant’s to 15%. prepared naut a second based on this signed claimant subsequent- which was ly by the Septem- Commission on ber therefore,

Claimant totally continued to have trouble with permanently dis- his back and was hospital. admitted to the abled. referee went on to 22, 1979, Tregoning per- period On October Dr. conclude limitation of I.C. § 72-706(2) inapplicable, spinal and that the formed a fusion on claimant. The five-year period indicated in limitation for modification Argonaut doctor a letter an award contained in 72-719 had *3 impairment rating that claimant’s had addition, already expired. In the Commis- again to Argonaut prepar- increased 20%. compensation concluded that third sion the ed a third reflect- final as to agreement was and conclusive ing increase. signed this Claimant the nature and extent of disabili- the claimant’s agreement the Commission it agreement at the ty as it existed time the 19,1980. expenses on June All the medical approved. The stated Commission by incurred the date of the claimant from only exception judicata res that the to the addition, paid by injury Argonaut. were In agreements be in a effect of such would Argonaut paid temporary claimant total the and the Com- situation where 1974, 17, disability benefits from November expressly reserved the determina- mission 28, through April 1977, and from October per- particular component of some tion 19, 1979, through 16, disability for date. Since manent a later sought first counsel on this Claimant here, case that was not the the Commission 29, August, September 1980. On matter for denied the claim additional application claimant filed for hear- an (cid:127) appeal followed. tion and award. This ing request compensation and to further appeal presents following The three § 72-706(2), to pursuant I.C. or al- award § (1) 72-706(2) inapplicable, Is I.C. issues: reopen ternatively, modify the third so, period and if had limitation con- agreement compensation pursuant to I.C. § by expired in I.C. the time tained § alleged 72-719. Claimant that he was application hearing? filed his claimant according fact disabled to the “odd 100% (2) Is the third addition, lot” doctrine.1 In con- claimant 19, 1980, approved on final which was June agree- tended that the third regarding nature and and conclusive ment could be reviewed since it was based existing perma- of claimant’s then extent solely on an without con- (3) Is disability? the claimant entitled sideration other non-medical factors attorney appeal? fees on permanent disability. bear on 16, 1981, hearing A was held on March I. Findings

after which referee made Fact and Conclusions of Law which the appar Industrial The Commission adopted supplemented Commission ently perceived Application that claimant’s additional Conclusions of Law. Hearing solely with on the modifi based § that claimant was indeed a provisions referee found óf Conse cation I.C. 72-719.2 and, category quently, of the “odd lot” the Commission failed to consider member doctrine, explaining "odd lot” see or date of of an 1. For cases first maniféstation Fund, disease, Lyons Special change occupational ground v. Industrial Indem. 98 Ida on of a conditions, may, Francis v. Amal ho not of- commission but months, gamated Sugar P.2d (6) any once in six review tener than (1977). order, agreement upon any or of the following grounds: "(a) Change 72-719 reads § 2. I.C. as follows: in the nature or extent of the disablement; employee’s injury or or agree- "72-719. Modification of awards and "(b) Fraud. within which made.— ments —Grounds—Time (1) “(2) may The commission on such review application party An made in interest ending, diminishing or increas- make an award any with the at time within filed commission compensation previously agreed upon ing (5) causing years of the the accident five date of 706(2) 72-706(2) addressing expired. when the issue had that section application of whether claimant’s was time- contains an period ap- alternative which is ly concluding ap- plicable that claimant’s filed. those payment cases where the plication was barred because it was filed is discontinued more than expiration five-year years limita- after five injury. after the date of the § 72-719, period “Compensation” tion of I.C. the Commis- is defined in I.C. 72- “ 102(5) sion never mentioned the fact ‘Compensation’ as follows: used ap- itself was executed and collectively any means or all of the income proved expiration after of this same benefits and the medical and related bene- five-year period. question There is some fits and medical services.” In the case at bar, entering as to the act of Argonaut whether into an paying discontinued total expiration after the of the modi- temporary disability on May benefits period may fication constitute a waiver of years 1980—five and six months after the *4 period by employer surety. the Thus, and/or date injury. of Woodvine’s the alter- question We need not address that period this native limitation should applied be case, however, because we hold that the payments because these compen- constitute § 72-706(2) provisions applica- of I.C. are sation which was discontinued more than ble. years five after the date of injury. statute, According to payment when of § 72-706(2) provides I.C. as follows: compensation is discontinued more than “(2) compensation When discontinued. years injury, five after the date of the payments compensation When of have year following claimant has one the date of discontinued, been made and thereafter payment the last in which to applica- file an (5) years the claimant shall have five compensation tion for further and award. from date causing of the accident Consequently, year Woodvine had one from injury or date of first manifestation of an 16, 1980, appli- within which to file his disease, or, occupational compensation if hearing. By filing cation for September on (5) years discontinued more than is five 29, 1980, he was well one-year within this causing from the date of the accident and, period therefore, not barred. injury or the date of first manifestation § Respondents contend that I.C. 72- disease, occupational (1) of an within one 706(2) applies only to situations where the

year payment from the date of the last began employer/surety voluntary to make compensation, within which to make payments subsequently and discontinued and file with applica- the commission an payments. They argue those that since the requesting hearing tion for further temporary disability total benefits were compensation and award.” paid pursuant to the third Following approval of the third com- agreement, they were voluntary pay not pensation agreement, Woodvine filed an § and, therefore, 72-706(2) ments I.C. is Application Hearing requesting for further inapplicable. disagree. We September on 1980. This approximately years Although third agree- was five and ten ment, following 19, 1980, injured. months the date he was on June set out Thus, application temporary disability payments Woodvine filed his after the total § five-year period part the strict of I.C. 72- of the award to which claimant was awarded, subject "(3) commission, to the maximum and mini- The on its own motion at law, (5) any years provided in time within five of the date of the mum this and shall make its fact, causing rulings accident or date of mani- findings first of law and order or disease, occupational may award, festation of an review file the same the office of the commis- injustice. a case in order to correct a manifest sion, immediately copy send a thereof to “(4) apply This section shall to a commu- not parties. payments tation of under section 72-404.” entitled, payments agreement. (A those prior copy were made tion of this approval compensation agree- to the tion has been included herein as such, ment. As temporary A.) the total disabil- Appendix ity payments paid pursuant were not Commission, support of its conclu- approved compensation agreement. sion that the third fact, approved compensation agreement was final conclusive as to claimant’s simply reaffirmed that the payments had § permanent disability, cited I.C. Thus, Argonaut been made. voluntarily and stated: payments made these and later discontin- Supreme “The Idaho consistently Court them, making bringing ued this case approved compensation has held that an squarely application within the I.C. (final judicata is res and con- § 72-706(2). We conclude that I.C. 72- clusive) as to all issues which were raised 706(2) applicable, and that Woodvine might or which have been raised at the complied with that section when he filed his approved, time the sub- Application Hearing September on ject upon showing to modification Therefore, we hold that Woodvine’s change or a condition. Rodius fraud Application Hearing was not barred Co., v. Coeur d’Alene Mill 46 Idaho § 72-706(2). either 72-719 or I.C. Reagan v. Baxter Foun- P. Works, dary Machine &

II. (1933); Zapantis v. Central Ida- Mining Milling ho *5 Idaho [61 The Commission concluded that the third 660, (1940)]; Nitkey v. 106 P.2d 113 and compensation agreement “is final and con- Mining Bunker Hill & Sullivan & Con- regarding clusive the nature and extent of centrating 294, 73 Idaho 251 P.2d permanent disability.” the claimant’s Wo- (1952).” 216 odvine contends that this conclusion is erro- argues neous. Woodvine that the third § The Commission also cited I.C. 72-718 as compensation agreement was final and con- support Although for its conclusion. only permanent impair- clusive as to his above-quoted by statement the Commission only ment because medical factors were regard was correct in to the cited line of by ap- considered the Commission when it cases, to the Commission failed observe proved agreement. In order to resolve change in the law which oc- fundamental issue, pairs this we must consider two of subsequent to our decisions in those curred §§ (A) 72-718; statutes: I.C. 72-711 and cases. §§ and, (B) I.C. and 72-424 72-425. 1971, existing prior statutory The law to provided of the in that an “award board A) §§ I.C. 72-711 and 72-718: fraud, absence of shall be final and conclu- parties,” appealed. sive between the if not § 72-711 authorizes the use of com- I.C. § repealed by See former I.C. 72-608 1971 that, pensation agreements provides and 124, 2, p. Idaho Sess.Laws ch. section upon approval of the Industrial Commis- language, upon Based that this Court con- sion, is to be (as by cluded stated the Commission in the purposes. an all considered award for I.C. above) quote § indented that an award of the provides that a decision of the 72-718 i.e., judicata; was res final and (after Commission any rehearing or recon- Commission were, as to all that or sideration), conclusive matters appealed if in not and the ab- been, 1971, fraud, could have raised. sence of is “final and conclusive as legislature repealed existing work- adjudicated by to all matters the commis- men’s laws and enacted new provide sion.” These two statutes analysis finality for our of the workmen’s statutes. Since foundation time, provided that has that and conclusiveness of the third I.C. (as commission, permanent urged disability by decision of the in the ab- the Com- “[a] mission) fraud, agreement was sence or whether shall be final and conclusive only final and as to claimant’s adjudicated by as to all conclusive matters the com- (as permanent impairment urged by Wood- appealed. (Emphasis mission” if not add- vine). ed.) permanent impairment A is “a comparison A of the statute exist appraisal and extent medical nature 1971, ing prior and the statute enacted injured ... as it affects an 1971, practically discloses that the two are employee’s personal efficiency in activi- except identical for the addition of the daily living.” ties of 72-424. I.C.

phrase adjudicated” “as to all matters § 72-425, as it read at the time of this legislature the current statute. When the hearing, provided permanent that a disabili- statute, changes language it is of a ty rating appraisal injured is “an presumed they change the intended to employee’s present probable future application meaning of that statute. ability engage gainful activity as it is Chandler, Hawkins v. 88 Idaho by perma- affected the medical factor of County see also Lincoln by nonmedical fac- Deposit Maryland, Fidelity & Co. of sex, education, tors age, such as economic (1981). We environment, training and social and usable legislature, adding by conclude that the added.) See Curtis v. (Emphasis skills.” phrase adjudicated,” “as to all matters in County Office, Shoshone 102 Ida- Sheriffs tended that decisions of the Commission be (1981). P.2d ho only final and mat conclusive as to those “the Commission concluded that actually adjudicated. ters This is a de by the Commission was an parture concept “pure judi from the res permanent disability.” The award for cata,” applied prior to accorded based this conclusion on two Commission finality decisions the Commission sentences contained in the conclusiveness to all matters which agreement. The first sentence is contained been, adjudicated. were, or could have *6 agreement: “Overpayment in Part I of the Therefore, compensation agree the third against for time loss is credited the to be only ment is final and conclusive as to disability award.” The second sentence is actually those matters considered the following III of general provision a Part Commission.3 agreement: employer surety “The agrees agree employee to pay, to and the B) §§ 72-424 & 72-425: accept, disability as set forth award periodic above in installments.” Having decided that the third only agreement However, tion is final and conclusive dis- the Commission failed to considered, II, actually language as to those matters we is the cuss the of Part agreement dispute in specific providing must now decide whether the the award Part agreement here. Part II of the states: final and conclusive as to claimant’s opinions compensation proceeding, recent that in a workmen’s 3. We are aware of our two may erroneously prevented relitigating only read to be contra- which some one is from those However, dictory such is to this conclusion. "finally matters decided in an earlier decision of opinion Appel, in Sines v. 703, not the case. Our the Commission.” Id. at 662 P.2d at 1147. (1982), to res Idaho 644 P.2d 331 referred Thus, although judica- both cases referred to res setting only judicata so to in a similar but did ta, a decision of neither of those cases held that hold that the award of the Commission the Commission is final and conclusive as to only parties into to those who entered final been, not, matters which could have but were compensation agreement. Banzhaf We, therefore, adjudicated. find these cases to Carnation (1983), opinion be consonant with our here. referring judicata, we stated while to res “THE EMPLOYEE BEEN A HAS GIVEN Pocatello Indus. Park Co. v. Steel West, Inc., PERMANENT DISABILITY IM- Idaho AND/OR (1980). Therefore, we reverse conclu- PAIRMENT RATING OF is this ...It sion of the Commissionthat the award was specific language which causes us to con- permanent disability, for and remand to the agreement clude that the is Commissionfor a determination of whether ambiguous. unwilling, We are and it parties actually agreed that the award us, improper presume would be that permanent impairment, was for or whether controlling “AND” is the word and that parties agreed that the award was for ignored, “OR” should be or vice versa. permanent disability. Should the Commis- Since we are unable to determine the intent sion find that the reading from of the com- provided permanent claimant with a disabil- pensation agreement, impossible we find it award, ity agreement then the is final and to discern from the whether the permanent conclusive as to dis- claimant’s per- permanent disability award was for However, ability. should Commission impairment. manent compensation agreement pro- find that the impair- permanent vided claimant with a Finding of Fact VIII states only, ment then is part rating agree that the contained not final and conclusive as to claimant’s solely ment “was on the doctor’s based permanent disability, and the Commission permanent partial is an instructed to award for claimant enter equal person; a whole nonmedi 20% III that consistent with Conclusion Law to, including, cal but not limited factors claimant is a member the “odd lot” education, age, training, claimant’s work and, therefore, category totally per- “is experience, and skills were not considered manently as a result of his acci- disabled added.) (Emphasis making rating.” that dent of November 1974 and his subse- (as it existed at Since I.C. quent surgeries.”4 back hearing) nonmed required time of this that arriving at a ical factors be considered III. rating, permanent disability and since Find ing of Fact states that nonmedical VIII he is enti Claimant contends that considered, attorney pursuant factors were not it is clear that fees to I.C. tled to respondents have con provided by 72-804 because the award tested claim for perma claimant’s only upon was based disagree, grounds. We without reasonable impairment rating. respondents legitimate had and feel that necessarily indicate that fact alone does not contesting good Wood- faith bases permanent impairment the award was for vine’s claim. perma award was for only. Whether the *7 disability is impairment permanent or The decision of the Industrial Commis- agreement of the dependent the actual on instruc- sion is reversed and remanded with parties. The determination of what tions. actually agreed have parties to a contract claimant-appellant. Costs to fact for the trier fact question to is a attorney appeal. No fees on Co. v. Christen to determine. Pollard Oil sen, 103 Idaho HUNTLEY, JJ., Indus and v. Daum Engineering

Int'l Co. BISTLINE McFADDEN, Tern., J. Pro concur. tries, Inc., clearly more parties ture a form of which of the 4. We note that since the intent ultimately parties is what would be indicates the intention permanent is for whether the award determines desirable. disability, permanent in the fu- impairment or award, BAKES, Justice, disability only dissenting part the claimant’s rating. claimant’s Since that concurring specially: specifically an issue which was not I I and concur in Part dissent to Part litigated previously when this matter was opinion. regard majority III of the With Commission, the com- before the Industrial II, portion Part I concur with that parties permit mission should to submit concludes that the evidence, parties’ as to the additional both ambiguous is and that the Industrial Com- executing intentions remand, mission, on should decide as a bearing upon any other extrinsic evidence fact, question matter of rather than as a the issue of what the intended when law, by executing parties, whether they compensation agree- entered into the compensation agreement, intended to settle ment. *8 BRUMMETT, E.

William

Plaintiff-Respondent, EDIGER, Roy Gerhard,

Ardean J. Flying Association,

Mountain View

Defendants-Appellants.

No. 14368.

Supreme Court of Idaho.