History.

I.C.,§ 72-101, as added by 1971, ch. 124, § 3, p. 422; am. 1989, ch. 191, § 1, p. 473.

STATUTORY NOTES

CASE NOTES

Cited

Curtis v. Shoshone County Sheriff’s Office, 102 Idaho 300, 629 P.2d 696 (1981); Sherrard v. City of Rexburg, 113 Idaho 815, 748 P.2d 399 (1988).

History.

I.C.,§ 72-102, as added by 1971, ch. 124, § 3, p. 422; am. 1974, ch. 208, § 1, p. 1538; am. 1978, ch. 264, § 1, p. 572; am. 1982, ch. 231, § 1, p. 608; am. 1987, ch. 49, § 1, p. 78; am. 1989, ch. 155, § 12, p. 371; am. 1990, ch. 335, § 1, p. 912; am. 1993, ch. 341, § 1, p. 1277; am. 1994, ch. 112, § 1, p. 255; am. 1994, ch. 446, § 1, p. 1427; am. 1996, ch. 194, § 2, p. 604; am. 1997, ch. 130, § 1, p. 393; am. 1997, ch. 274, § 1, p. 799; am. 2004, ch. 149, § 1, p. 479; am. 2006, ch. 206, § 1, p. 627; am. 2008, ch. 369, § 1, p. 1009; am. 2013, ch. 46, § 1, p. 96; am. 2016, ch. 276, § 1, p. 759. STATUTORY NOTES

Prior Laws.

This section was to become null and void, effective July 1, 2021, pursuant to S.L. 2016, ch. 276, § 3. However, S.L. 2020, ch. 33, § 1 repealed S.L. 2016, ch. 276, § 3, effective July 1, 2020.

Cross References.

“Average weekly state wage” determined,§ 72-409.

“Average weekly wage” determined,§ 72-419.

Board of correction,§ 20-201A.

“Day” defined,§ 72-418.

Department of correction,§ 20-201 et seq.

“Dependents” defined,§ 72-410.

“Employment” defined,§ 72-204.

“Evaluation (rating) of permanent disability” defined,§ 72-425.

“Evaluation (rating) of permanent impairment” defined,§ 72-424.

“Occupational diseases” defined,§ 72-438.

“Permanent disability” or “under a permanent disability” defined,§ 72-423.

“Permanent impairment” defined,§ 72-422.

“Permanent physical impairment” defined,§ 72-332.

Presumption that injury arose in course of employment when employee is killed or physically or mentally unable to testify,§ 72-228.

State insurance fund,§ 72-901 et seq.

“Week” defined,§ 72-418.

“Whole man” defined,§ 72-426.

Amendments.

This section was amended by two 1997 acts — ch. 130, § 1 and ch. 274, § 1, both effective July 1, 1997 — which appear to be compatible and have been compiled together. In subsection (5) the amendment by both acts substituted “chapter 5, title 20” for “chapter 18, title 61” and “20-511” for “16-1807,” and in present subsection (21)(e) substituted “Silicosis” for “Silicoses”. In addition, the amendment by ch. 130, § 1 designated the former paragraph of subsection (12) as (12)(a) and in the third sentence of (12)(a) substituted “workers” for “workmen” and added subdivisions (12)(b)-(d) and the amendment by ch. 274, § 1 added a new subsection (18) and renumbered former subsections (18)-(32) as present subsections (19)-(33).

The 2006 amendment, by ch. 206, added subsections (2) and (26), and redesignated the remaining subsections accordingly.

The 2008 amendment, by ch. 369, added subsection (32) and redesignated the subsequent subsections accordingly.

The 2013 amendment, by ch. 46, inserted “or public institutions of higher education” near the beginning of the first sentence in subsection (35). The 2016 amendment, by ch. 276, inserted the present third sentence in subsection (12); inserted the present fourth sentence in paragraph (13)(a); and deleted “as that term is defined in section 56-1012, Idaho Code” following “certified personnel” in subsection (32).

Compiler’s Notes.

The term “this law” appearing throughout the section refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805.

Effective Dates.

Section 21 of S.L. 1989, ch. 155 provided that the act should take effect January 15, 1990.

Section 6 of S.L. 1996, ch. 194 provided that the act should be in full force and effect on and after January 1, 1997.

Section 3 of S.L. 2004, ch. 149 declared an emergency. Approved March 23, 2004.

CASE NOTES

Cited

Hall v. Young’s Dairy Prods. Co., 98 Idaho 562, 569 P.2d 907 (1977); Loughmiller v. Interstate Farmlines, 107 Idaho 179, 687 P.2d 569 (1984); Raugust v. Diamond Int’l Corp., 107 Idaho 724, 692 P.2d 368 (1984); Rhodes v. Sunshine Mining Co., 113 Idaho 162, 742 P.2d 417 (1987); Mapusaga v. Red Lion Riverside Inn, 113 Idaho 842, 748 P.2d 1372 (1987); Brooks v. Standard Fire Ins. Co., 117 Idaho 1066, 793 P.2d 1238 (1990); Livingston v. Ireland Bank, 128 Idaho 66, 910 P.2d 738 (1995); Seamans v. Maaco Auto Painting & Bodyworks, 128 Idaho 747, 918 P.2d 1192 (1996); City of Boise v. Industrial Comm’n, 129 Idaho 906, 935 P.2d 169 (1997); Struhs v. Protection Technologies, Inc., 133 Idaho 715, 992 P.2d 164 (1999); Rivas v. K.C. Logging, 134 Idaho 603, 7 P.3d 212 (2000); Stoica v. Pocol, 136 Idaho 661, 39 P.3d 601 (2001); Hoskins v. Circle A Constr., Inc., 138 Idaho 336, 63 P.3d 462 (2003); State ex rel. Indus. Comm’n v. Bible Missionary Church, Inc., 138 Idaho 847, 70 P.3d 685 (2003); Venters v. Sorrento Del., Inc., 141 Idaho 245, 108 P.3d 392 (2005); Kolar v. Cassia County Idaho, 142 Idaho 346, 127 P.3d 962 (2005); Cordova v. Bonneville County Joint Sch. Dist. No. 93, 144 Idaho 637, 167 P.3d 774 (2007); Ewing v. DOT, 147 Idaho 305, 208 P.3d 287 (2009); Liberty Northwest Ins. Corp. v. United States, 2011 U.S. Dist. LEXIS 138291 (D. Idaho Nov. 30, 2011); Izaguirre v. R&L Carriers Shared Servs., LLC, 155 Idaho 229, 308 P.3d 929 (2013); Estate of Aikele v. City of Blackfoot, 160 Idaho 903, 382 P.3d 352 (2016); Hartgrave v. City of Twin Falls, 163 Idaho 347, 413 P.3d 747 (2018); Moser v. Rosauers Supermarkets, Employer, — Idaho —, 443 P.3d 147 (2019).

RESEARCH REFERENCES

History.

I.C.,§ 72-103, as added by 1997, ch. 130, § 2, p. 393.

Compiler’s Notes.

The terms “this act” and “this law” appearing in the last sentence refer to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Attorney’s Fees.

The purpose of enacting the workmen’s compensation laws in Idaho was to provide sure relief for injured workers and their dependents. In providing for the payment of attorney’s fees in certain cases, the legislature sought to further this purpose in several ways; first, the legislature sought to encourage claimants to press claims which, but for such provision, would not be worth their time and effort once the costs of hiring of attorney had been deducted from the award; and second, the legislature meant to encourage attorneys to represent clients and take on claims which would otherwise not be in their best financial interests due to their relative financial insignificance. Hogaboom v. Economy Mattress, 107 Idaho 13, 684 P.2d 990 (1984). There is no authority for the award of attorney fees against a worker’s compensation claimant who unsuccessfully appeals a decision. Swanson v. Kraft, Inc., 116 Idaho 315, 775 P.2d 629 (1989).

Construction.

The workmen’s compensation act is to be construed liberally in favor of claimants. Jones v. Morrison-Knudsen Co., 98 Idaho 458, 567 P.2d 3 (1977).

The act is to be construed liberally in favor of a claimant since the humane purposes which it seeks to serve leave no room for narrow, technical construction. Hattenburg v. Blanks, 98 Idaho 485, 567 P.2d 829 (1977).

When interpreting§§ 72-201, 72-209 and 72-211, if an injury is cognizable under the worker’s compensation law then any common law remedy is barred, but if the injury is not cognizable under workman’s compensation, then the employee is left to a remedy under the common law. Roe v. Albertson’s, Inc., 141 Idaho 524, 112 P.3d 812 (2005).

Employer.

In determining statutory employer status consideration should be given to such elements as ownership of the premises, proprietorship, virtual proprietorship, management of the business, and source of the payment of workmen’s compensation premiums. Tucker v. Union Oil Co., 100 Idaho 590, 603 P.2d 156 (1979).

Exclusive Remedy.

Idaho workmen’s compensation laws provide the exclusive remedy of an employee against his employer for injuries arising out of and in the course of employment. Yeend v. UPS, Inc., 104 Idaho 333, 659 P.2d 87 (1982).

This section and§ 72-211 vest exclusive jurisdiction over claims for injuries arising out of and in the course of employment in the industrial commission; accordingly, the district court properly dismissed an employee’s claim for damages allegedly induced by and during his employment filed directly with the circuit court. Henderson v. State, 110 Idaho 308, 715 P.2d 978, cert. denied, 477 U.S. 907, 106 S. Ct. 3282, 91 L. Ed. 2d 571 (1986).

Where the employee was injured when her foot was partially severed by a lawn mower she was operating because the employer did not use the proper engine or safety devices on the lawn mower, but there was no evidence presented to the trial court that the employer wilfully or without provocation physically attacked the employee, there was no genuine issue of material fact, and the trial court was justified in granting summary judgment against the employee in a civil action against the employer for injuries caused by an intentional tort of the employer during the course of employment, since workmen’s compensation provided an exclusive remedy under the circumstances. Kearney v. Denker, 114 Idaho 755, 760 P.2d 1171 (1988).

In granting summary judgment for the company, whose manager engaged in sexual intercourse with a minor employee, the district court had concluded that the minor suffered an injury, a broken hymen, caused by an accident at work. However, a ruptured hymen was not “an unexpected, undesigned, and unlooked for mishap, or untoward event”; it was something that typically occurred when a virgin engaged in sexual intercourse. Consequently, since there was no accident as defined by§ 72-102(17)(b), the minor did not suffer a personal injury, as defined by§ 72-102(17)(c), and her tort claims were not preempted by the exclusivity provisions of the Idaho worker’s compensation act. Roe v. Albertson’s, Inc., 141 Idaho 524, 112 P.3d 812 (2005). Although family members of an employee were entitled to (and did receive) worker’s compensation benefits for the employee’s death, the district court erred by finding that the members’ wrongful death action was barred by the exclusivity rule under the worker’s compensation law. The court failed to consider whether the employer consciously disregarded information suggesting a significant risk to its employees working at or under tables, and, on remand, was to apply the proper standard for proving an act of unprovoked physical aggression. Gomez v. Crookham Co., — Idaho —, 457 P.3d 901 (2020).

Legislative Intent.

Since worker’s compensation statutes must be considered in the context of the entire act, the court held that it was clear the legislature intended, in order for the worker’s compensation law to achieve its purpose of providing sure and certain relief for injured workers and their families, that all claims, issues and civil actions relating in any manner to the injury of a worker be decided by the industrial commission. Idaho State Ins. Fund v. Van Tine, 132 Idaho 902, 980 P.2d 566 (1999).

Liberal Construction of Compensation Laws.

The statutory basis for the principle of liberal construction of the worker’s compensation laws in favor of claimants is this section. Haldiman v. American Fine Foods, 117 Idaho 955, 793 P.2d 187 (1990).

Penalty Rationally Related to Purpose.

Section 72-210 providing a penalty for employer’s failure to secure payment of compensation bears a rational relationship to the legitimate legislative purpose of providing “sure and certain relief” for an injured worker and his family enunciated as policy in this section; accordingly, it does not violate any state or federal due process provisions. Heese v. A & T Trucking, 102 Idaho 598, 635 P.2d 962 (1981).

Purpose.

The purpose of the worker’s compensation law is to provide sure and certain relief for injured workmen and their families and dependents. Davaz v. Priest River Glass Co., 125 Idaho 333, 870 P.2d 1292 (1994).

The express purpose and intent of the legislature in passing the state worker’s compensation law was to provide for the exclusivity of the remedy under the statute for claims arising out of and sustained during the course of employment, to the exclusion of other causes of action. Baker v. Sullivan, 132 Idaho 746, 979 P.2d 619 (1999).

Questions Properly Before Industrial Commission.

Remedies and Procedure.

The question of which of two sureties is responsible for claimant’s injury was a “question arising under this law” as provided in§ 72-707, and was properly determined by the industrial commission. Brooks v. Standard Fire Ins. Co., 117 Idaho 1066, 793 P.2d 1238 (1990). Remedies and Procedure.

In a wrongful death action, the trial court’s denial of defendant’s motions to dismiss and for summary judgment, both of which were made upon the ground that the industrial commission had exclusive jurisdiction of the matter, did not remove the question of the applicability of workmen’s compensation law from the proceedings, and thus the trial court did not err in carrying that issue forward to trial. Anderson v. Gailey, 97 Idaho 813, 555 P.2d 144 (1976).

Although the industrial commission and the district court had concurrent jurisdiction to determine whether they had jurisdiction to consider the claim or hear the case, where a notice of injury was filed with the commission before plaintiffs filed their original complaint with the district court, then the commission had the first right to determine the jurisdictional issue and its determination is res judicata upon that question. Anderson v. Gailey, 97 Idaho 813, 555 P.2d 144 (1976).

In a wrongful death action, the determination of whether the decedent had been an employee of defendant, rather than an independent contractor or a casual employee, while engaged in making repairs to broken equipment at the bottom of a drill shaft, was a question of fact for the jury, for the question bore not only upon the issue of the court’s jurisdiction but also upon the standard of care that defendant owed to the decedent. Anderson v. Gailey, 97 Idaho 813, 555 P.2d 144 (1976).

Separate Action.

To recover in a separate action against an employer, a plaintiff must allege the existence of a tort not covered by the workmen’s compensation statute. Yeend v. UPS, Inc., 104 Idaho 333, 659 P.2d 87 (1982).

Where the only allegation of wrongdoing on the part of the employer was the allegation that supervisor twice directed claimant to continue working after she informed him that she had been injured in a fall, the claim for emotional distress resulting therefrom did not constitute a separate tort of outrage compensable under a common-law action for intentional infliction of emotional distress; any such claim, to the extent that it constituted a neurosis or other psychological condition traceable in part to an industrial accident and injury was compensable only under the workmen’s compensation scheme. Yeend v. UPS, Inc., 104 Idaho 333, 659 P.2d 87 (1982).

The filing of a worker’s compensation claim does not constitute a waiver by the employee of the right to attempt to prove that the injury was caused by the wilful or unprovoked physical aggression of the employer and to maintain a civil action against the employer for injuries that were allegedly caused by an intentional tort of the employer during the course of employment. Kearney v. Denker, 114 Idaho 755, 760 P.2d 1171 (1988).

To prove aggression sufficient to maintain an action against the employer for injury caused by the wilful or unprovoked physical aggression of the employer, there must be evidence of some offensive action or hostile attack; it is not sufficient to prove that the alleged aggressor committed negligent acts that made it substantially certain that injury would occur. Kearney v. Denker, 114 Idaho 755, 760 P.2d 1171 (1988).

Cited Moyer v. Bonneville County, 96 Idaho 33, 524 P.2d 161 (1974); Lopez v. Allen, 96 Idaho 866, 538 P.2d 1170 (1975); Howard v. FMC Corp., 98 Idaho 465, 567 P.2d 10 (1977); Cook v. Cook, 102 Idaho 651, 637 P.2d 799 (1981); Barker v. Fischbach & Moore, Inc., 105 Idaho 108, 666 P.2d 635 (1983); Miller v. Amalgamated Sugar Co., 105 Idaho 725, 672 P.2d 1055 (1983); Horton v. Garrett Freightlines, 106 Idaho 895, 684 P.2d 297 (1984); Salinas v. Vierstra, 107 Idaho 984, 695 P.2d 369 (1985); Barker v. Fischbach & Moore, Inc., 110 Idaho 871, 719 P.2d 1131 (1986); Harmon v. Lute’s Constr. Co., 112 Idaho 291, 732 P.2d 260 (1986); Brannon v. Pike, 112 Idaho 938, 737 P.2d 459 (1987); Rhodes v. Sunshine Mining Co., 113 Idaho 162, 742 P.2d 417 (1987); Lowery v. Board of County Comm’rs, 117 Idaho 1079, 793 P.2d 1251 (1990); Venters v. Sorrento Del., Inc., 141 Idaho 245, 108 P.3d 392 (2005); Kolar v. Cassia County Idaho, 142 Idaho 346, 127 P.3d 962 (2005); Blake v. Starr, 146 Idaho 847, 203 P.3d 1246 (2009). Decisions Under Prior Law

Constitutionality.

Prior law similar to this section did not violate constitutional provisions,Idaho Const., Art. V, § 20, giving district courts original jurisdiction in all cases, both at law and in equity. Brady v. Place, 41 Idaho 747, 242 P. 314 (1925); Brady v. Place, 41 Idaho 753, 243 P. 654 (1926); Arneson v. Robinson, 59 Idaho 223, 82 P.2d 249 (1938).

A party seeking to enforce a statute or to avail himself of its provisions may not question its constitutionality. Brady v. Place, 41 Idaho 747, 242 P. 314 (1925); Brady v. Place, 41 Idaho 753, 243 P. 654 (1926).

Right of trial by jury was strictly enforceable only as to rights, remedies and actions triable by jury under the common law, and not necessarily as to new or different rights or remedies not in existence or in contemplation of the constitution when adopted. Brady v. Place, 41 Idaho 747, 242 P. 314 (1925); Brady v. Place, 41 Idaho 753, 243 P. 654 (1926).

Construction.

The workmen’s compensation law was to be liberally construed in its application to dependents who, because of its enactment, had been deprived of any claims in tort for negligent death of a decedent as well as injured workmen. In re Haynes, 95 Idaho 492, 511 P.2d 309 (1973).

Construed as Unit.

In construing this statute the cardinal rule is to ascertain intention of legislature as expressed in words of statute, and for this purpose act must be considered as a whole. Workmen’s Comp. Exch. v. Chicago, M., St. P. & Pac. R.R., 45 F.2d 885 (D. Idaho 1930); Flynn v. Carson, 42 Idaho 141, 243 P. 818 (1926).

In view of the fact that the workmen’s compensation law, as originally enacted, was an entirety, it should be construed as a whole. Arneson v. Robinson, 59 Idaho 223, 82 P.2d 249 (1938). In construing any section or subsection, which is a part of the workmen’s compensation law, the latest expression of the legislature should prevail and every part should be considered. Beard v. Lucky Friday Silver-Lead Mines, 67 Idaho 135, 173 P.2d 76 (1946).

Construed Liberally.

Workmen’s compensation law was to be liberally construed with a view to effect its object and promote justice. McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068 (1921); Flynn v. Carson, 42 Idaho 141, 243 P. 818 (1926); In re Hillhouse’s Estate, 46 Idaho 730, 271 P. 459 (1928); In re Larson, 48 Idaho 136, 279 P. 1087 (1929); Burchett v. Anaconda Copper Mining Co., 48 Idaho 524, 283 P. 515 (1929); Cooper v. Independent Transf. & Storage Co., 52 Idaho 747, 19 P.2d 1057 (1933); Kelley v. Prouty, 54 Idaho 225, 30 P.2d 769 (1934); Pierstorff v. Gray’s Auto Shop, 58 Idaho 438, 74 P.2d 171 (1937); Olson v. Union Pac. R.R., 62 Idaho 423, 112 P.2d 1005 (1941); Stroscheim v. Shay, 63 Idaho 360, 120 P.2d 267 (1941); Long v. Brown, 64 Idaho 39, 128 P.2d 754 (1942); Bishop v. Morrison-Knudsen Co., 64 Idaho 806, 137 P.2d 963 (1943); Smith v. University of Idaho, 67 Idaho 22, 170 P.2d 404 (1946); McCall v. Potlatch Forests, Inc., 67 Idaho 415, 182 P.2d 156 (1947); Frisk v. Garrett Freightlines, Inc., 76 Idaho 27, 276 P.2d 964 (1954); Collins v. Moyle, 83 Idaho 151, 358 P.2d 1035 (1961).

The workmen’s compensation law was liberally construed in favor of the employee. Stover v. Washington County, 63 Idaho 145, 118 P.2d 63 (1941); Anderson v. Woesner, 66 Idaho 441, 159 P.2d 899 (1944).

A workmen’s compensation act was construed to require the rehabilitation of injured employees and correct treatment where possible. Flock v. J.C. Palumbo Fruit Co., 63 Idaho 220, 118 P.2d 707 (1941).

The compensation act was given a broad liberal construction and doubtful cases were resolved in favor of compensation because the humane purpose of the act left no room for technical construction. Smith v. University of Idaho, 67 Idaho 22, 170 P.2d 404 (1946).

If the language employed in workmen’s compensation act together with the occupational disease law permitted, the supreme court would refrain from adopting a construction which led to unjust, inequitable, oppressive or absurd consequences. Frisk v. Garrett Freightlines, Inc., 76 Idaho 27, 276 P.2d 964 (1954).

Course of Employment.

The accident arose “out of and in the course of employment” where it occurred on the premises of employer while plaintiff was performing his assigned job in furtherance of his employment. Provo v. Bunker Hill Co., 393 F. Supp. 778 (D. Idaho 1975).

Nature and Purpose.

The purpose of the law was to provide sure relief for injured workmen and their dependents. McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068 (1921); In re Larson, 48 Idaho 136, 279 P. 1087 (1929).

Entire law manifested purpose on part of legislature, under its police power, to require every industry to bear burden cast upon working class because of personal injuries occasioned by accidents that were incident of occupation, insofar as same may have been compensated by pecuniary consideration. All of its provisions, including procedure to enforce same, should have been considered in view of this purpose and all contracts of indemnity to injured or their dependents when death ensued, should have been so construed insofar as reasonable construction of agreement permitted. Hauter v. Coeur d’Alene Antimony Mining Co., 39 Idaho 621, 228 P. 259 (1923). The purpose of the workmen’s compensation law was to secure compensation for employees disabled, in whole or in part, from earning the support of themselves and their dependents, payable because of, and during the period of their disability, also to secure compensation for the dependents of employees who have been killed by accident, arising out of and in the course of their employment. There was nothing to be found in the law to indicate a legislative intention to provide for compensation for an employee because of an accident which had not resulted in injury causing disability, nor for payment of compensation covering a period of time when the employee was not disabled. McRae v. School Dist. No. 23, 56 Idaho 384, 55 P.2d 724 (1936).

The statute was a declaration of police power providing for compensation for industrial injuries, caused without fault on the part of the employer, regardless of the fellow-servant rule, assumption of risk, or contributory negligence. Arneson v. Robinson, 59 Idaho 223, 82 P.2d 249 (1938).

The compensation law provided a special remedy unknown to the common law, and the act itself deprived the workman of his common-law rights, and provided indemnities in lieu thereof. Close v. General Constr. Co., 61 Idaho 689, 106 P.2d 1007 (1940); Stample v. Idaho Power Co., 92 Idaho 763, 450 P.2d 610 (1969).

Theoretically, the workmen’s compensation law was not intended to provide for payment of damages to injured workmen, but only to compensate for loss of earning power. Olson v. Union Pac. R.R., 62 Idaho 423, 112 P.2d 1005 (1941).

The administration of the workmen’s compensation law and benefits accruing thereunder to workmen and employees was a fixed principle of the policy of the state. Stover v. Washington County, 63 Idaho 145, 118 P.2d 63 (1941).

Workmen’s compensation was not meant or intended as life or health insurance, it was purely accident and occupational disease insurance. Wade v. Pacific Coast Elevator Co., 64 Idaho 176, 129 P.2d 894 (1942).

It was the purpose of the law to make the industry carry the burden of loss caused by injuries to workmen, but the employer, not the industry, was liable. Moon v. Ervin, 64 Idaho 464, 133 P.2d 933 (1943); Frisk v. Garrett Freightlines, Inc., 76 Idaho 27, 276 P.2d 964 (1954).

The purpose of the workmen’s compensation law was to provide not only for employees a remedy which was both expeditious and independent of proof of fault, but also for employers a liability which was limited and determinative. Stample v. Idaho Power Co., 92 Idaho 763, 450 P.2d 610 (1969).

Negligence.

Contributory negligence did not arise under workmen’s compensation law. Walker v. Hyde, 43 Idaho 625, 253 P. 1104 (1927); In re Stewart, 49 Idaho 557, 290 P. 209 (1930); In re Coleman, 53 Idaho 339, 23 P.2d 115 (1933); Dameron v. Yellowstone Trail Garage, 54 Idaho 646, 34 P.2d 417 (1934); Dutson v. Idaho Power Co., 57 Idaho 386, 65 P.2d 720 (1937); Dillard v. Jones, 58 Idaho 273, 72 P.2d 705 (1937); England v. Fairview School Dist. No. 16, 58 Idaho 633, 77 P.2d 655 (1938); Olson v. Union Pac. R.R., 62 Idaho 423, 112 P.2d 1005 (1941); Hancock v. Halliday, 65 Idaho 645, 150 P.2d 137 (1943).

While compensation did not depend on negligence on the part of the employer, his negligence did not exclude, but compelled compensation. Brown v. St. Joseph Lead Co., 60 Idaho 49, 87 P.2d 1000 (1938); Howard v. Texas Owyhee Mining & Dev. Co., 62 Idaho 707, 115 P.2d 749 (1941). The workmen’s compensation act was remedial and special law providing compensation for injured employees without referring to negligence on the part of either employer or employee. Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054 (1940); Gifford v. Nottingham, 68 Idaho 330, 193 P.2d 831 (1948).

Laborer employed to put in road on ore lease was entitled to compensation for back injury sustained in lifting log even though act was unwise since injury was sustained in the course of employment. Shaw v. Sikes, 74 Idaho 425, 263 P.2d 710 (1953).

While compensation did not depend upon negligence of the employer, his negligence contributing to the injury of an employee would bar his subrogation action against a third party tortfeasor. Liberty Mut. Ins. Co. v. Adams, 91 Idaho 151, 417 P.2d 417 (1966).

Remedies and Procedure.

Where, after injury, employee was further injured by doctor employed by employer’s compensation insurance carrier while undergoing examination for carrier’s benefit, he had no right of action against the insurance carrier unless such injury did not arise out of and in the course of employment and was not compensable under Idaho workmen’s compensation act, or injury was sustained under circumstances as to create liability in one other than his employer. Schulz v. Standard Accident Ins. Co., 125 F. Supp. 411 (E.D. Wash. 1954).

The law was purely statutory and, was an expressed departure from the common law, explicitly doing away with common-law actions previously applicable to such controversies. Cook v. Massey, 38 Idaho 264, 220 P. 1088 (1923).

The workmen’s compensation law withdrew every phase of the controversy for compensation from the operation of the common-law rules. In re Fisk, 40 Idaho 304, 232 P. 569 (1925); Haugse v. Sommers Bros. Mfg. Co., 43 Idaho 450, 254 P. 212 (1927); State Ins. Fund v. Hunt, 52 Idaho 639, 17 P.2d 354 (1932).

By the enactment of the workmen’s compensation act, the legislature intended to give the injured workman a speedy, summary and simple remedy for the recovery of compensation in all cases coming within its provisions, that strict rules of procedure were not required, and that in every case where compensation was not settled by agreement, the board, or a member thereof to whom the matter had been assigned, should have made such inquiries and investigations as should have been deemed proper. Pierstorff v. Gray’s Auto Shop, 58 Idaho 438, 74 P.2d 171 (1937).

In abolishing all civil actions and remedies, the legislature made it clear that the procedure before the board was not governed by the Civil Practice Act. O’Niel v. Madison Lumber & Mill Co., 61 Idaho 546, 105 P.2d 194 (1940).

In enacting the workmen’s compensation law abolishing every remedy for all injuries received by a workman in the course of his employment, the legislature did not intend to take from the workman his common-law remedy for the negligent act of his employer resulting in serious injury and damage to the workman, and give the workman no other remedy in lieu thereof, and would be deemed to have assumed that every injury would impair the workman’s usefulness to some degree, and that a workman should in some measure be compensated under the new remedy set up by the compensation law. Olson v. Union Pac. R.R., 62 Idaho 423, 112 P.2d 1005 (1941). Although the industrial accident board [now industrial commission] was a tribunal of limited scope, it had general and exclusive original jurisdiction in the state field of industrial accidents. Johnson v. Falen, 65 Idaho 542, 149 P.2d 228 (1944).

The industrial accident board [now industrial commission] had exclusive jurisdiction of claim for injuries sustained by a minor aged 15 while working for a lumber company. Lockard v. St. Maries Lumber Co., 76 Idaho 506, 285 P.2d 473 (1955).

As third party was the loaned servant of the trucking company for the purpose of aiding in the unloading of boilers he was transporting at the time of the accident and injury to plaintiff, accident occurring while third party was driving truck out from under boiler as it was being elevated under direction of plaintiff, plaintiff’s exclusive remedy was compensation under the workmen’s compensation law. Cloughley v. Orange Transp. Co., 80 Idaho 226, 327 P.2d 369 (1958).

A state employee injured by a state-owned truck driven by a co-employee was precluded from bringing a damage action against the state and said co-employee for such injuries. Nichols v. Godfrey, 90 Idaho 345, 411 P.2d 763 (1966).

The enactment of the workmen’s compensation laws did not abolish all common-law causes of action between the actual employer (subcontractor) and the statutory employer (general contractor) of an injured workman. Industrial Indem. Co. v. Columbia Basin Steel & Iron, Inc., 93 Idaho 719, 471 P.2d 574 (1970).

Since workmen’s compensation is the exclusive remedy provided an employee against his employer for injuries arising out of and in the course of employment, once the employer-employee relationship is shown to exist any common lawsuit against the employer is barred, even though the employer may be negligent in regard to the duty of safety owed to an employee. Provo v. Bunker Hill Co., 393 F. Supp. 778 (D. Idaho 1975).

Am. Jur. 2d.

ALR.

Compiler’s Notes.

The term “this law” at the beginning of this section refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Test of Interstate Commerce.

Test for determining whether any particular employment was a part of interstate commerce was whether employee, at time of injury was engaged in interstate transportation, or in work so closely related to it as to be practically a part of it. Hulse v. Pacific & I.N. Ry., 47 Idaho 561, 277 P. 426 (1929); Moser v. Union Pac. R.R., 65 Idaho 479, 147 P.2d 336 (1944).

Section hand injured in yard, not then in use, under repair, enlargement and reconstruction, was performing no duties in furtherance of interstate or foreign commerce or in any way directly or closely and substantially affecting such commerce and was entitled to recovery under state law. Moser v. Union Pac. R.R., 65 Idaho 479, 147 P.2d 336 (1944).

Compiler’s Notes.

The term “this law” at the beginning of this section refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Covered Employees.

An employee, who worked both in employer’s exempt seed potato operation and in employer’s covered potato marketing business, was covered by workmen’s compensation for an injury suffered while working in the marketing enterprise. Goodson v. L. W. Hult Produce Co., 97 Idaho 264, 543 P.2d 167 (1975).

Exemptions.

In order to realize the humane purposes of the workmen’s compensation scheme all exemptions from coverage should be construed narrowly. Goodson v. L. W. Hult Produce Co., 97 Idaho 264, 543 P.2d 167 (1975).

In General.

The occupation or pursuit of the employer considered as a whole is the test determining whether the activity is covered by or exempt from the workmen’s compensation laws. Dwigans v. Olander, 98 Idaho 744, 572 P.2d 178 (1977).

Jurors.

Pursuant to§ 72-205(2) jurors come within the encompass of the Idaho worker’s compensation act. Yount v. Boundary County, 118 Idaho 307, 796 P.2d 516 (1990).

Classes of Covered Employers.

Two classes of employers were covered by the workmen’s compensation act; one was the normal common-law type of employer and the other was an employer as defined by the statute. Beedy v. Washington Water Power Co., 238 F.2d 123 (9th Cir. 1956).

Since the statute provided that the act should apply “to all private employment not expressly excepted by the provisions,” the court would not restrict its coverage by construction in cases where such restriction was not fairly required by the terms of the act itself. Collins v. Moyle, 83 Idaho 151, 358 P.2d 1035 (1961).

Am. Jur. 2d.

C.J.S.

ALR.

§ 72-204. Private employment — Coverage.

The following shall constitute employees in private employment and their employers subject to the provisions of this law:

1. A person performing service in the course of the trade, business, profession or occupation of an employer.
2. A person, including a minor, whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, express or implied, and all helpers and assistants of employees whether paid by the employer or employee, if employed with the knowledge, actual or constructive, of the employer.
3. An officer of a corporation.
4. “Employment,” in the case of private employers, includes employment only in that trade, business, profession or occupation which is carried on by the employer and also includes any of the pursuits specified in section 72-212, Idaho Code, when the employer shall have elected to come under the law as provided in section 72-213, Idaho Code.

History.

I.C.,§ 72-204, as added by 1971, ch. 124, § 3, p. 422; am. 2006, ch. 231, § 1, p. 688.

Cross References.

Exemption from coverage,§ 72-212.

Amendments.

The 2006 amendment, by ch. 231, in subsection (1), inserted “business”; and in subsection (4), substituted “that trade, business, profession or occupation” for “a trade or occupation,” and deleted “for the sake of pecuniary gain” following the first occurrence of “employer.”

Compiler’s Notes.

The term “this law” at the end of the introductory paragraph refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Employee.

Idaho has recognized a well-established common law rule that where one is requested by an employee to assist in doing such employee’s work in the furtherance of the business of the master, and such assistant does such work with the knowledge and acquiescence of the employer, such assistant thereby becomes, in effect, an employee. Wise v. Armold Transf. & Storage Co., 109 Idaho 20, 704 P.2d 352 (Ct. App. 1985).

Where the plaintiff’s work as an assistant to a truck driver, helping in loading and unloading, involved a small portion of time compared to the amount of time consumed in traveling, for which he was not compensated, such work did not constitute “casual employment” within the meaning of§ 72-212(2), since the employment of the plaintiff did not arise inadvertently or at uncertain times, and the work was an integral part of the employer’s business; thus, the plaintiff was an employee within the meaning of subdivision (2) of this section, being an assistant to an employee, and thus was precluded from bringing a personal injury action by§ 72-211, providing that workmen’s compensation is the exclusive remedy. Wise v. Armold Transf. & Storage Co., 109 Idaho 20, 704 P.2d 352 (Ct. App. 1985).

Employer.

In determining statutory employer status, consideration should be given to such elements as ownership of the premises, proprietorship, virtual proprietorship, management of the business, and source of the payment of workmen’s compensation premiums. Tucker v. Union Oil Co., 100 Idaho 590, 603 P.2d 156 (1979).

Commonly, the statutory employer pays the premiums covering his or her employees, since it is the employer’s legal responsibility to insure that employees are covered by workmen’s compensation insurance. Rhodes v. Sunshine Mining Co., 113 Idaho 162, 742 P.2d 417 (1987).

Employer-Employee Relationship.

Coverage under workmen’s compensation laws is dependent upon the existence of an employer-employee relationship. Anderson v. Farm Bureau Mut. Ins. Co., 112 Idaho 461, 732 P.2d 699 (Ct. App. 1987).

Pecuniary Gain.

In an action in which the industrial commission sought injunctive relief and imposition of a civil penalty against a church because the church failed to obtain worker’s compensation insurance for its pastor, the district court properly affirmed a magistrate’s decision granting summary judgment in favor of the church; the church did not receive remuneration for services or operate “for the sake of pecuniary gain” within the meaning of§§ 72-204(4) and former 72-212(6). State ex rel. Indus. Comm’n v. Bible Missionary Church, Inc., 138 Idaho 847, 70 P.3d 685 (2003) (See 2006 amendment).

Personal Errand During Business Trip.

The inquiry with regard to cases involving an accident where the claimant was on business but also performing a personal errand is whether the departure from the claimant’s employment became so personal that it broke the causal connection to such an extent that the resulting accident could no longer be said to “arise out of and in the course of” the claimant’s employment. Morgan v. Columbia Helicopters, Inc., 118 Idaho 347, 796 P.2d 1020 (1990).

Pecuniary Profit.

An employer supplying service and receiving remuneration for it is a covered employer, irrespective of whether or not it made a profit out of a particular enterprise. Modlin v. Twin Falls Canal Co., 49 Idaho 199, 286 P.2d 612 (1936); Dillard v. Jones, 58 Idaho 273, 72 P.2d 705 (1937).

ALR.

Right to workers’ compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli — Requisites of, and factors affecting, compensability. 106 A.L.R.5th 111.

Right to workers’ compensation for physical injury or illness suffered by claimant as result of sudden mental stimuli — Compensability under particular circumstances. 107 A.L.R.5th 441.

Right to workers’ compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli — Compensability under particular circumstances. 108 A.L.R.5th 1.

Right to workers’ compensation for injury suffered by employee while driving employer’s vehicle. 28 A.L.R.6th 1.

Right to workers’ compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli — Compensability under particular circumstances. 39 A.L.R.6th 445.

Right to compensation under state workers’ compensation statute for injuries sustained during or as result of horseplay, joking, fooling, or the like. 41 A.L.R.6th 207.

Injury to employee as arising out of or in course of employment for purposes of state workers’ compensation statute — Effect of employer-provided living quarters, room and board, or the like. 42 A.L.R.6th 61.

Cross References.

Definition of workman and definition of outworker,§ 72-102.

National guard covered by state insurance fund,§ 72-928.

Youth conservation project,§ 56-601 et seq.

Youth conservation project participants deemed to be civil employees of state for purposes of workmen’s compensation,§ 56-609.

Amendments.

This section was amended by two 1990 acts, ch. 301, § 1, effective April 5, 1990, and ch. 335, § 2, effective July 1, 1990, which appear to be compatible and have been compiled together.

Both 1990 amendments redesignated former subsection (6) as subsection (7), and added a subsection (8). The subsection (8) added by ch. 301, § 1 has been compiled as subsection (8), and the subsection (8) added by ch. 335, § 2, has been compiled as subsection [9](8).

The 2007 amendment, by ch. 90, substituted the first occurrence of “worker’s” for “workmen’s” in subsection (7); and corrected the designation of the last paragraph.

The 2008 amendment, by ch. 369, in subsection (4), substituted “a volunteer emergency responder” for “a member of a volunteer fire or police department,” and inserted “agency or organization.”

The 2011 amendment, by ch. 42, deleted “with the state insurance fund” from the end of subsection (9).

The 2013 amendment, by ch. 46, added “or by the Idaho higher education policy” at the end of subsection (9).

The 2018 amendment, by ch. 39, added “when the work experience student is not covered by the private or governmental entity that is the student’s work experience employer” at the end of subsection (9).

Compiler’s Notes.

The term “this law” appearing throughout this section refers to S.L. 1971, Chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

The name of the state forester in subsection (3) has been changed to director of the department of lands on authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 17, § 3 (§ 38-101(g)).

The department of disaster relief and civil defense in subsection (5) was established by Laws 1955, ch. 269, §§ 1 to 8. Laws 1955, ch. 269 was repealed by Laws 1975, ch. 212, which established the bureau of disaster services. The bureau of disaster services became the bureau of homeland security through Laws 2004, ch. 58. The bureau of homeland security became the Idaho office of emergency management through S.L. 2016, Chapter 118. See§ 46-1001 et seq.

Effective Dates.

Section 2 of S.L. 1989, ch. 200 declared an emergency. Approved March 29, 1989.

Section 2 of S.L. 1990, ch. 301 declared an emergency. Approved April 5, 1990.

Section 21 of S.L. 1989, ch. 155 provided that the act should take effect January 15, 1989.

Correctional Facility Inmates.

An inmate who is serving time in a correctional facility is not working under any contract of hire, either express or implied by law, therefore, they are not employees of the state for worker’s compensation purposes. Crawford v. Department of Cor., 133 Idaho 633, 991 P.2d 358 (1999) (decided prior to 2004 amendment of§ 72-102).

Independent Basis for Defining Public Employees.

Each subsection within this section is disjunctively stated as an independent basis for defining public employees in public employment, and hence identifying those subject to the worker’s compensation act. Yount v. Boundary County, 118 Idaho 307, 796 P.2d 516 (1990).

Independent Contractors.

Independent contractors are not covered under Idaho’s worker’s compensation law when in the service of the state or any of its political subdivisions. Daleiden v. Jefferson County Joint Sch. Dist. No. 251, 139 Idaho 466, 80 P.3d 1067 (2003).

Term “contract of hire” in§ 72-205(1), in the context of the worker’s compensation law, denotes an employer/employee relationship, and not simply any contractual hiring arrangement. Daleiden v. Jefferson County Joint Sch. Dist. No. 251, 139 Idaho 466, 80 P.3d 1067 (2003).

Inmates.

Inmate who was injured while performing maintenance duties of cleaning rain gutters at the correctional facility where she was incarcerated was not considered to be a community service worker as defined in§ 72-102(5) [now (6)], and was not entitled to worker’s compensation benefits under subsection (7) of this section. Crawford v. Department of Cor., 133 Idaho 633, 991 P.2d 358 (1999) (decided prior to 2004 amendment of§ 72-102).

Jurors.

Pursuant to subdivision (2) of this section, jurors come within the encompass of the Idaho worker’s compensation act. Yount v. Boundary County, 118 Idaho 307, 796 P.2d 516 (1990).

Legislative Intent.

The public service aspect of community service envisioned by the legislature in subsection (5) [now (6)] of§ 72-102 is other than the benefit derived by a correctional institution from having inmates engage in productive activities directed toward maintaining the prison facilities. Crawford v. Department of Cor., 133 Idaho 633, 991 P.2d 358 (1999) (decided prior to 2004 amendment of§ 72-102).

School Districts.

Physical therapist who was providing services to a school district fell under§ 72-205(1), and not§ 72-205(2); school districts are political subdivisions of the state itself and not of counties, cities, or municipal corporations. Daleiden v. Jefferson County Joint Sch. Dist. No. 251, 139 Idaho 466, 80 P.3d 1067 (2003).

Decisions Under Prior Law

National Guard.

Prior statute did not exclude the National Guard. Griffith v. National Guard, 70 Idaho 88, 212 P.2d 403 (1949).

Prisoners.

State penitentiary prisoner was not entitled to recover compensation for injuries sustained while working in the license plate factory under a prison work project authorized by state board of correction, he not being an “employee” under the workmen’s compensation law. Shain v. Idaho State Penitentiary, 77 Idaho 292, 291 P.2d 870 (1955).

School Employees.

A school janitor’s wife, who assisted her husband with the school board’s knowledge and assurance that her assistance was necessary, was held an employee, within the workmen’s compensation law. Larson v. Independent Sch. Dist. No. 11-J, 53 Idaho 49, 22 P.2d 299 (1933).

Where an employee of the Idaho industrial training school received an injury arising out of, and in the course of, his employment, his right to compensation could not be defeated by the contention that he was engaged in an agricultural pursuit since the law provided that the workmen’s compensation act should apply to employees of school districts, which was sufficient to authorize the award of compensation. Crowley v. Idaho Indus. Training Sch., 53 Idaho 606, 26 P.2d 180 (1933).

Where a president of a state normal school, while traveling on a highway to attend a meeting of a state educational association, lost his life, though the board of education had not filed an election with the industrial accident board [now industrial commission], and the employment was not carried on by the employer for pecuniary gain, his dependents were entitled to compensation, since the excepted employment from the operation of the act only applied to private employment and not to that of the state. Bocock v. State Bd. of Educ., 55 Idaho 18, 37 P.2d 232 (1934). See also England v. Fairview School Dist. No. 16, 58 Idaho 633, 77 P.2d 655 (1938).

United States Projects.

The United States was not an “employer” within the meaning of the workmen’s compensation act so as to bar an action under the wrongful death statute where a workman of the general contractors for a flood control project for the United States fell from a scaffold, and exemption of an “employer” from common law or statutory action for negligence did not apply. Kirk v. United States, 232 F.2d 763 (9th Cir. 1956). RESEARCH REFERENCES

C.J.S.

ALR.

Right to workers’ compensation for emotional distress or like injury suffered as result of sudden stimuli involving nonpersonnel action. 83 A.L.R.5th 103.

Right to workers’ compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli — Right to compensation under particular statutory provisions. 97 A.L.R.5th 1.

Right to workers’ compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli — Requisites of, and factors affecting, compensability. 106 A.L.R.5th 111.

Right to workers’ compensation for physical injury or illness suffered by claimant as result of sudden mental stimuli — Compensability under particular circumstances. 107 A.L.R.5th 441.

Right to workers’ compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli — Compensability under particular circumstances. 108 A.L.R.5th 1.

Workers’ compensation: Nonathlete students as covered employees. 33 A.L.R.6th 251.

Cross References.

Youth conservation project,§ 56-601 et seq.

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

The name of the state forester has been changed to director of the department of lands on authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 17, § 3 (§ 38-101(g)).

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Cross References.

Presumption in favor of coverage where employee is killed or physically or mentally unable to testify,§ 72-228.

Amendments.

The 2010 amendment, by ch. 118, updated the section reference in subsection (3).

Burden of Proof.

The burden of disproving wilful intent to injure himself or herself is not upon the claimant, but rather is in the nature of an affirmative defense, which, if raised by the employer, must be proved by a preponderance of the evidence by the employer. Seamans v. Maaco Auto Painting & Bodyworks, 128 Idaho 747, 918 P.2d 1192 (1996).

Constitutionality.

Intoxication.

The worker’s compensation law does not deny the equal protection of the laws to an employee who is intentionally injured on the job by the employer as both this section, denying compensation to an employee who wilfully intends to injure herself, and subsection (3) of§ 72-209, providing coverage for the injury of an employee caused by the negligent acts of an employer that made it substantially certain that an injury would occur, require an intention to injure the employee. Kearney v. Denker, 114 Idaho 755, 760 P.2d 1171 (1988). Intoxication.

A blood alcohol level of .117 percent was not sufficiently high to overcome the presumption contained in§ 72-228 that employee’s death was not occasioned by his intoxication. Hatley v. Lewiston Grain Growers, Inc., 97 Idaho 719, 552 P.2d 482 (1976).

At hearing before the commission on claimant’s application for full income benefits as the surviving widow of employee who was killed when his semi-truck overturned, the expert testimony of a toxicologist regarding the effect of employee’s .117 percent blood alcohol level on his ability to operate a motor vehicle was not necessarily binding on the commission which could have concluded that all of the evidence of employee’s intoxication did not overcome statutory presumption that employee’s death was not caused by his intoxication. Hatley v. Lewiston Grain Growers, Inc., 97 Idaho 719, 552 P.2d 482 (1976).

In hearings on claimant’s application for full income benefits as surviving widow of employee who was killed when his semi-truck overturned, the commission did not err in its conclusion that there was a lack of substantial evidence in the record that employee’s death was caused by intoxication, even though test results revealed that decedent had .117 percent blood alcohol level, where truck stop proprietors testified that employee’s behavior was normal and that he did not appear to be intoxicated. Hatley v. Lewiston Grain Growers, Inc., 97 Idaho 719, 552 P.2d 482 (1976).

In view of the presumption contained in§ 72-228 that an employee’s death was not occasioned by his intoxication, a finding by the commission that employee was intoxicated did not lead to an inevitable conclusion that the intoxication caused the fatal accident. Hatley v. Lewiston Grain Growers, Inc., 97 Idaho 719, 552 P.2d 482 (1976).

This section does not eliminate the requirement that the claimant must show that an accident arose “out of and in the course of” the claimant’s employment, but rather, this section provides that if a claimant is otherwise eligible for benefits and the injury is the proximate result of the claimant’s intoxication, the claimant’s benefits shall be reduced by 50 percent; the section does not create any entitlement to compensation if the claimant is not otherwise eligible for that compensation under the rubric of the workers’ compensation statutes. Morgan v. Columbia Helicopters, Inc., 118 Idaho 347, 796 P.2d 1020 (1990).

Decisions Under Prior Law

Burden of Proof.

Falling Asleep.

Where the employer defended upon the ground that the employee was intoxicated at the time of his injury, the burden to prove this contention was upon the employer. Potter v. Realty Trust Co., 60 Idaho 281, 90 P.2d 699 (1939). Falling Asleep.

The evidence was sufficient to sustain the finding and conclusion that his employment required deceased to travel the road in question, and that at the time the automobile in which he was riding went into the river he was on his way in the course of his employment to perform his duties; and that he was not guilty of wilful intention to injure himself when the car went into the river because he had fallen asleep. In re Coleman, 53 Idaho 339, 23 P.2d 1115 (1933).

Intoxication.

Where an employee was injured in an automobile accident, and a police officer testified that he thought that the employee had odor of liquor on him at the time of the accident, but the officer declined to make such statement under oath, and the employer offered a statement made by the officer to the chief of police, in which it was stated that the employee had been drinking, which statement was excluded, this was error but not sufficiently prejudicial to result in a refusal of the award of compensation. Potter v. Realty Trust Co., 60 Idaho 281, 90 P.2d 699 (1939).

A written statement made by an officer that at the time of the injury of an employee in an automobile accident, which statement was made to the chief of police after the occurrence of such accident, such statement was not sufficient standing alone to prove intoxication of the employee. Potter v. Realty Trust Co., 60 Idaho 281, 90 P.2d 699 (1939).

Employer was not entitled to exemption from liability, if intoxication was not the sole or principal factor in death as result of coronary occlusion, even though use of alcohol probably contributed to the death. In re Smith, 72 Idaho 8, 236 P.2d 87 (1951).

The death of an employee as the result of being shot by his employer while at work, due to personal animosity, as the result of the employer and the employee dating the same woman, was not compensable though there was evidence that employer was an alcohol paranoiac, since the shooting was the result of a premeditated act. Devlin v. Ennis, 77 Idaho 342, 292 P.2d 469 (1956).

The industrial accident board’s ultimate finding that decedent, at the time of his accidental death, was returning home after a social evening with friends and not from a mission for his employer was substantiated by the evidence where representative of company with whom decedent’s employer had a local sales franchise had not expected decedent’s visit and any tenuous connection with employment in the earlier part of the evening had long ended, the major portion of such evening being spent in social activities and the consumption of liquor. In re Linzy, 79 Idaho 514, 322 P.2d 330 (1958).

Traffic Violators.

Where an employee attempted to avoid an automobile collision by driving on the wrong side of the street, and during the course of such driving, he collided with a tree, this violation of a traffic ordinance prohibiting driving on the wrong side of the street was not sufficient to award a denial of compensation. Potter v. Realty Trust Co., 60 Idaho 281, 90 P.2d 699 (1939).

Wilful Intention to Injure.

Where claimant, who worked for defendant company and another company located adjacent thereto, was injured during lunch hour while proceeding hand over hand down elevator shaft in building occupied by other company while hurrying to get his lunch pail so as to return to work with defendant company, he was not guilty of wilful intention to injure himself. Shoemaker v. Snow Crop Marketers Div., 74 Idaho 151, 258 P.2d 760 (1953). RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

ALR.

Workers’ compensation: Validity, construction, and application of statutes providing that worker who suffers workplace injury and subsequently tests positive for alcohol impairment or illegal drug use is not eligible for workers’ compensation benefits. 22 A.L.R.6th 329.

Amendments.

The 2020 amendment, by ch. 208, in subsection (3), added “which physical aggression must include clear and convincing evidence the employer, its officers, agents, servants, or employees either specially intended to harm the employee or engaged in conduct knowing that injury or death to the employee was substantially likely to occur” at the end of the first sentence.

Compiler’s Notes.

The term “this law” in subsections (1) and (2) refers to S.L. 1971, Chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Ceiling on Third Party Claims.

Subsection (2) of this section was intended to put a ceiling on third party indemnity claims against the employer, except in those cases where the claim is based on an express contractual indemnity provision. Pocatello Indus. Park Co. v. Steel W., Inc., 101 Idaho 783, 621 P.2d 399 (1980).

Co-employee Immunity.

Since the relevant criteria for deciding “employee” status throughout the workmen’s compensation act is the “course of employment” test set forth in subdivision (14)(a) [now (17)(a)] of§ 72-102, that same standard is to be used to determine “employee” status for purposes of determining co-employee immunity. Wilder v. Redd, 111 Idaho 141, 721 P.2d 1240 (1986).

The employee who, at the time of the accident, was in his vehicle in the company parking lot on his way to lunch when he collided with co-employee, was acting within the course of his employment, and therefore he was entitled to co-employee immunity pursuant to this section. Wilder v. Redd, 111 Idaho 141, 721 P.2d 1240 (1986).

Where the district court finding that a coworker was covered by the co-employee immunity doctrine was not contested by the plaintiffs, and where the plaintiffs did not allege any facts to show why the doctrine should not apply in the case at hand, the district court’s summary judgment in favor of the co-worker was affirmed. Baker v. Sullivan, 132 Idaho 746, 979 P.2d 619 (1999).

Common Law Action.

Where an employee was receiving workmen’s compensation benefits for injuries he sustained when zinc in uncovered pots unexpectedly exploded, he was not entitled to maintain a common law action against the employer on the ground that employer’s knowledge of numerous similar occurrences and disregard of such hazardous condition amounted to an intentional tort. Provo v. Bunker Hill Co., 393 F. Supp. 778 (D. Idaho 1975).

Constitutionality.

Employer-Employee Relationship.

The worker’s compensation law does not deny the equal protection of the laws to an employee who is intentionally injured on the job by the employer, as both§ 72-208, denying compensation to an employee who wilfully intends to injure herself, and subsection (3) of this section, providing coverage for the injury of an employee caused by the negligent acts of an employer that made it substantially certain that an injury would occur, require an intention to injure the employee. Kearney v. Denker, 114 Idaho 755, 760 P.2d 1171 (1988). Employer-Employee Relationship.

Although the industrial commission and the district court had concurrent jurisdiction to determine whether they had jurisdiction to consider the claim or hear the case, where a notice of injury was filed with the commission before plaintiffs filed their original complaint with the district court, then the commission had the first right to determine the jurisdictional issue and its determination is res judicata upon that question. Anderson v. Gailey, 97 Idaho 813, 555 P.2d 144 (1976).

In a wrongful death action, the determination of whether the decedent had been an employee of defendant, rather than an independent contractor or a casual employee, while engaged in making repairs to broken equipment at the bottom of a drill shaft, was a question of fact for the jury, for the question bore not only upon the issue of the court’s jurisdiction but also upon the standard of care that defendant owed to the decedent. Anderson v. Gailey, 97 Idaho 813, 555 P.2d 144 (1976).

The mining companies were the statutory employers of the claimant and were immune from tort liability under this section and§ 72-211, where the mining companies owned the interests being mined within the area, they were proprietors of the mining operation, and they contributed toward the provision of workmen’s compensation benefits to the claimant and similarly situated employees. Rhodes v. Sunshine Mining Co., 113 Idaho 162, 742 P.2d 417 (1987).

Exclusive Remedy.

A statutory employer is responsible for providing workmen’s compensation coverage and, in return, is legally immune from suit by an employee based on injuries suffered in an industrial accident. Tucker v. Union Oil Co., 100 Idaho 590, 603 P.2d 156 (1979).

Idaho workmen’s compensation laws provide the exclusive remedy of an employee against his employer for injuries arising out of and in the course of employment. Yeend v. UPS, Inc., 104 Idaho 333, 659 P.2d 87 (1982).

Where the only allegation of wrongdoing on the part of the employer was the allegation that supervisor twice directed claimant to continue working after she informed him that she had been injured in a fall, the claim for emotional distress resulting therefrom did not constitute a separate tort of outrage compensable under a common-law action for intentional infliction of emotional distress; any such claim, to the extent that it constituted a neurosis or other psychological condition traceable in part to an industrial accident and injury was compensable only under the workmen’s compensation scheme. Yeend v. UPS, Inc., 104 Idaho 333, 659 P.2d 87 (1982).

Where pilot’s estate was sued by estates of employee/passengers killed in plane crash and jury determined pilot was employee of corporation leasing plane, thereby making workers’ compensation the exclusive remedy of employee/passengers, trial court erred in overturning the jury verdict and granting a new trial. Burggraf v. Chaffin, 121 Idaho 171, 823 P.2d 775 (1991).

Employee alleged a willful or unprovoked physical aggression by his employer, and, therefore, his claim fell into a statutory exception to the exclusive remedy rule under§ 72-209(3); consequently, the employee was permitted to collect those workers’ compensation benefits for which he was eligible and to bring a cause of action against his employer outside the workers’ compensation system. Dominguez v. Evergreen Res., Inc., 142 Idaho 7, 121 P.3d 938 (2005). Worker was exempt from liability toward the contractor’s employee because the worker’s employer was a statutory employer immune from third party liability under§ 72-223(1); this immunity extended to its workers to fulfill the purpose of the Idaho worker’s compensation act as to hold otherwise would undermine the entire framework of liability and immunity provided by the worker’s compensation law. Blake v. Starr, 146 Idaho 847, 203 P.3d 1246 (2009).

Claims against a mining company for injuries and a death caused by a mine accident were barred by the exclusivity provision of this section, where the company’s conduct did not amount to willful or unprovoked physical aggression. The mining company did not specifically intend to injure the employees, and there was no evidence in the record that would support a finding that the company had actual knowledge that the mine stope would collapse. Marek v. Hecla, Ltd., 161 Idaho 211, 384 P.3d 975 (2016).

Worker’s compensation act exclusively governed plaintiffs’ claims. Although mining company knew that it was possible that additional rock bursts could occur in a pillar, there was no evidence that the company had actual knowledge another rock burst would occur before rehabilitation of the pillar or that one would occur while plaintiffs were working on the pillar. Barrett v. Hecla Mining Co., 161 Idaho 205, 384 P.3d 969 (2016).

Although family members of an employee were entitled to (and did receive) worker’s compensation benefits for the employee’s death, the district court erred by finding that the members’ wrongful death action was barred by the exclusivity rule under the worker’s compensation law. The court failed to consider whether the employer consciously disregarded information suggesting a significant risk to its employees working at or under tables, and, on remand, was to apply the proper standard for proving an act of unprovoked physical aggression. Gomez v. Crookham Co., — Idaho —, 457 P.3d 901 (2020).

Indemnification.

In action for wrongful death caused by collapsing crane fatally injuring an employee, even if rental agreement that provided that lessee would indemnify the lessor against any loss or damages on account of personal injury which was not signed by lessee and in fact was returned unsigned to lessor with explanation that contract was contained in lessee’s purchase agreement, were controlling, subsection (2) of this section limits the indemnification of lessee to lessor to the amount lessee is responsible for under workers’ compensation law. Essex Crane Rental Corp. v. Weyher/Livsey Constructors, Inc., 940 F.2d 1253 (9th Cir. 1991).

— Controlling Law.

Where deceased worker’s wife made a claim for, and received worker’s compensation benefits from husband’s employer, an Idaho subcontractor, and then filed an action against the contractor in state where husband’s death occurred, which resulted in a settlement with the contractor, and the contractor filed an indemnity action against the subcontractor pursuant to the employment contract agreement, the state of Idaho had the most significant relationship to the dispute and Idaho law which states the employer’s liability may be varied by agreement governed the effect of the indemnification clause in the subcontract agreement and the district court erred in applying the foreign state’s law to void the indemnity agreement. Seubert Excavators, Inc. v. Anderson Logging Co., 126 Idaho 648, 889 P.2d 82 (1995).

Limitation on Employer Liability.

Where industrial park corporation and its liability insurer brought an action against employer for indemnity in connection with judgment awarded to employee for industrial accident, employer was obligated, under subsection (2) of this section, only up to the amount of compensation and other benefits for which it was liable under the workmen’s compensation act. Pocatello Indus. Park Co. v. Steel W., Inc., 101 Idaho 783, 621 P.2d 399 (1980).

No Claim of Physical Aggression by Employer.

Where the claimant made no assertions of physical aggression by his employer or its agents, his claim was barred by subsection (3) of this section. Cope v. State, 108 Idaho 416, 700 P.2d 38 (1985).

Where the employee was injured when her foot was partially severed by a lawn mower she was operating because the employer did not use the proper engine or safety devices on the lawn mower, but there was no evidence presented to the trial court that the employer wilfully or without provocation physically attacked the employee, there was no genuine issue of material fact, and the trial court was justified in granting summary judgment against the employee in a civil action against the employer for injuries caused by an intentional tort of the employer during the course of employment since workmen’s compensation provided an exclusive remedy under the circumstances. Kearney v. Denker, 114 Idaho 755, 760 P.2d 1171 (1988).

Scope of Employment.

Generally speaking, an accident is deemed not to be in the course of employment if it occurs while the employee is on his way to work and has not yet reached the employer’s premises, or while the employee is on his way home and has left the employer’s premises. This general rule is predicated upon the fact that the employee usually selects the particular way, means and conveyance for going to and from work, and thus is himself in control of the risk. However, an exception to the general rule is when the employee is going and returning in some transportation facility furnished by the employer, for the employer, by taking control of the trip to and from work, has extended the risks of employment and therefore has extended the course of employment. Hansen v. Estate of Harvey, 119 Idaho 357, 806 P.2d 450 (Ct. App. 1990).

Where employees were riding in employer-provided transportation when the accident occurred, at that time, the employer had extended the risks of employment to include transportation, and the course of employment had been extended commensurately, thus worker’s compensation provided the exclusive remedy and a tort suit against the employer and against the fellow employee’s estate was barred by this section. Hansen v. Estate of Harvey, 119 Idaho 357, 806 P.2d 450 (Ct. App. 1990).

Because the travelling employee doctrine states that when an employee’s work requires the employee to travel away from the employer’s place of business or the employee’s normal place of work, the employee will be held to be within the course and scope of employment continuously during the trip, except when a distinct departure for personal business occurs, claimant was not a travelling employee because his work did not require him to travel away from his employer’s place of business or his normal place of work. Andrews v. Les Bois Masonry, Inc., 127 Idaho 65, 896 P.2d 973 (1995).

Third-Party Claims.

Passenger’s negligence claim against a driver was barred by the exclusivity rule of subsection (3), where the driver and passenger were in the process of delivering a car to their employer’s customer at the time of the accident. Passenger’s arguments that a manager had not specifically authorized the driver to courier the vehicle and that the driver was not acting in the course of his employment because it was technically his day off were rejected. Gerdon v. Rydalch, 153 Idaho 237, 280 P.3d 740 (2012). Third-Party Claims.

Where third party paid consideration for release of any claim employer may have had, based on the accident, employer’s subrogation rights were extinguished and third party became subrogated to employer’s right of reimbursement. Thus, in the event employer’s negligence was litigated, and employer was found not negligent, third party held employer’s right to be reimbursed for the workmen’s compensation benefits paid; conversely, in the event employer was found negligent, third party retained its right to receive a credit towards his judgment, in the amount of the workmen’s compensation benefits paid. Therefore, in the posture of such case, the determination of the employer’s negligence was unnecessary. Schneider v. Farmers Merchant, Inc., 106 Idaho 241, 678 P.2d 33 (1983).

A third party who has paid damages for an injury arising out of the employment of the injured person may hold the employer liable if the injury was concurrently caused by the breach of any duty or obligation owed by the employer to such other person, but the employer’s liability shall be limited to the amount of compensation for which the employer is liable under workmen’s compensation. Runcorn v. Shearer Lumber Prods., Inc., 107 Idaho 389, 690 P.2d 324 (1984).

The insurer of an employer who is jointly negligent with a third party is not allowed the statutory subrogation rights or reimbursement for workmen’s compensation benefits paid to the injured employee allowed by§ 72-223(3); the third party may defend on the basis that the employer was negligent whether or not the employer is a party to the action. Runcorn v. Shearer Lumber Prods., Inc., 107 Idaho 389, 690 P.2d 324 (1984).

Subsection (2) of this section limits the amount of an employer’s liability to a third party where there is an implied promise of indemnity. Essex Crane Rental Corp. v. Weyher/Livsey Constructors, Inc., 940 F.2d 1253 (9th Cir. 1991).

Because there was no evidence of a contract between the firefighter and the county, there could be no statutory employer relationship; therefore, workers’ compensation did not preclude the firefighter’s third-party suit against the county. Ruffing v. Ada County Paramedics, 145 Idaho 943, 188 P.3d 885 (2008) (see 2008 amendment of§ 72-102).

Tort Liability.

The status of a statutory employer does not exempt all such employers from tort liability as third parties under§ 72-223, since the exclusive liability of an employer under subsection (1) of this section, and the exclusive remedies of an employee under§ 72-211, are both specifically made “subject to the provisions of section 72-223.” Runcorn v. Shearer Lumber Prods., Inc., 107 Idaho 389, 690 P.2d 324 (1984).

This state’s workmen’s compensation law does not shield an employer of an independent contractor from tort liability for an injury incurred by the independent contractor’s employee. Peone v. Regulus Stud Mills, Inc., 858 F.2d 550 (9th Cir. 1988).

To prove aggression sufficient to maintain an action against the employer for injury caused by the wilful or unprovoked physical aggression of the employer, there must be evidence of some offensive action or hostile attack; it is not sufficient to prove that the alleged aggressor committed negligent acts that made it substantially certain that injury would occur. Kearney v. Denker, 114 Idaho 755, 760 P.2d 1171 (1988). Although a municipality and its supervisory employees may have been negligent, even grossly negligent, in not recognizing the danger of having plaintiffs remove certain insulation which contained asbestos, there was simply no evidence that any of the supervisors or the higher city officials ever willfully or intentionally wanted to cause injury to the plaintiffs, and because it is not sufficient to prove that an alleged aggressor committed negligent acts that made it substantially certain that injury would occur, plaintiffs did not prove any willful or unprovoked physical aggression as required in subsection (3) of this section and thus the plaintiffs’ state tort claims were preempted by the workers’ compensation act. DeMoss v. City of Coeur d’Alene, 118 Idaho 176, 795 P.2d 875 (1990).

When interpreting§§ 72-201, 72-209 and 72-211, if an injury is cognizable under the worker’s compensation law then any common law remedy is barred, but if the injury is not cognizable under workman’s compensation, then the employee is left to a remedy under the common law. Roe v. Albertson’s, Inc., 141 Idaho 524, 112 P.3d 812 (2005).

— Separate Action.

To recover in a separate action against an employer, a plaintiff must allege the existence of a tort not covered by the workmen’s compensation statute. Yeend v. UPS, Inc., 104 Idaho 333, 659 P.2d 87 (1982).

Waiver of Tort Claim.

The filing of a worker’s compensation claim does not constitute a waiver by the employee of the right to attempt to prove that the injury was caused by the wilful or unprovoked physical aggression of the employer and to maintain a civil action against the employer for injuries that were allegedly caused by an intentional tort of the employer during the course of employment. Kearney v. Denker, 114 Idaho 755, 760 P.2d 1171 (1988).

Decisions Under Prior Law

Awards on Basis of Negligence.

An award cannot be made under either workmen’s compensation law or occupational disease law on the ground of negligence of employer. Peterson v. Sunset Minerals, Inc., 75 Idaho 354, 272 P.2d 692 (1954).

Liability of Federal Government.

Ultra Vires.

The United States was not exempt from suit for damages by virtue of the workmen’s compensation act, since the act had been continued without change since the enactment of the federal tort claims act as evidenced by the Idaho Code compiled pursuant to S.L. 1947, ch. 224, and duly proclaimed by the governor by authority of S.L. 1949, ch. 167. Kirk v. United States, 232 F.2d 763 (9th Cir. 1956). Ultra Vires.

That employer, when employee sustained injuries, might have been engaged in ultra vires act was immaterial as affecting right to compensation. Modlin v. Twin Falls Canal Co., 49 Idaho 199, 286 P. 612 (1930).

Am. Jur. 2d.

ALR.

Construction and application of exclusive remedy rule under state workers’ compensation statutes with respect to liability for injury or death of employee as passenger in employer-provided vehicle — Requisites for, and factors affecting, applicability and who may invoke rule. 42 A.L.R.6th 545.

Construction and application of exclusive remedy rule under state workers’ compensation statute with respect to liability for injury or death of employee as passenger in employer-provided vehicle — Against whom may rule be invoked and application of rule to particular situations and employees. 43 A.L.R.6th 375.

Compiler’s Notes.

The terms “this act” and “this law” refer to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Applicability.

The penalty statute does not require the claimant to make a claim under this section in order to receive an award thereunder. Claimant need only make a claim for compensation in order to be eligible for an award under this section. Once that claim is made, it is the commission’s right and obligation to make the additional award against an employer who has failed to secure payment. Mortimer v. Riviera Apts., 122 Idaho 839, 840 P.2d 383 (1992).

Attorney Fees.

This section and§§ 72-803 and 72-804 evince a general legislative scheme whereby attorney fee issues closely related to the substance of the workers’ compensation claims are due to be resolved by the industrial commission. Brannon v. Pike, 112 Idaho 938, 737 P.2d 459 (1987).

By virtue of this section, claimant was entitled to attorney fees in defendant’s appeal of a workers’ compensation award since defendant failed to secure payment of compensation as required under§ 72-301. Swenson v. Estate of Craner, 117 Idaho 57, 785 P.2d 621 (1990).

Employee was entitled to attorney fees on employer’s appeal of the dismissal of his application for correction and modification of a compensation order, since the employer failed to secure payment of compensation as required under this section. Armbrister v. Hanny Custom Farming, 123 Idaho 31, 844 P.2d 13 (1992).

Where the employer failed to secure payment of compensation as required, and no mitigating circumstances were given which would justify the failure to secure worker’s compensation coverage were presented by the employer, the industrial commission properly awarded costs and attorney fees to the employee. Jones v. Emmett Manor, 134 Idaho 160, 997 P.2d 621 (2000).

Where the injured claimant’s employer did not carry required worker’s compensation insurance, the claimant was entitled to an award of costs and attorney fees relating to proceedings before the Idaho industrial commission and on appeal. Stoica v. Pocol, 136 Idaho 661, 39 P.3d 601 (2001).

Idaho industrial commission abused its discretion by awarding attorney fees to an employee almost six months after the deadline for submitting a memorandum of costs and supporting affidavit had passed. Medrano v. Neibaur, 136 Idaho 767, 40 P.3d 125 (2002).

Burden of Proof.

In view of the uniquely broad grant of original and exclusive jurisdiction over workers’ compensation matters given to the industrial commission, and the fact that§ 72-803 confers upon the commission the jurisdiction to resolve claims for attorney fees, there exists a legislative intent that jurisdiction over claims by a client against his attorney arising out of their fee agreement in a workers’ compensation case is properly with the industrial commission, and not the district court. Brannon v. Pike, 112 Idaho 938, 737 P.2d 459 (1987).

Fact that employer failed to acquire workers’ compensation insurance did not remove the plaintiff worker’s burden to prove that she was entitled to benefits. Stolle v. Bennett, 144 Idaho 44, 156 P.3d 545 (2007).

Constitutionality.

This section bears a rational relationship to the legitimate legislative purpose of providing “sure and certain relief” for an injured worker and his family enunciated as policy in§ 72-201; accordingly, it does not violate any state or federal due process provisions. Heese v. A & T Trucking, 102 Idaho 598, 635 P.2d 962 (1981).

Since this section provides no suspect, “near” suspect, or invidiously discriminatory classification, and entangles no fundamental or “quasi” fundamental right, it must be tested under the “rational basis” test for violations of the state and federal equal protection clauses; because the legislature imposed a statutory penalty without regard to fault in every case where the employee’s recovery is at risk by virtue of the employer’s failure to secure payment of compensation, which is a rational way to insure “sure and certain relief” as envisioned by§ 72-201, the section does not create a special class of employers who have not provided security for compensation so as to deny equal protection to them. Heese v. A & T Trucking, 102 Idaho 598, 635 P.2d 962 (1981). The term “employer” is not unconstitutionally vague. The statutory definition in§ 72-102(11) [now (13)] is sufficient to inform an ordinary person whether he falls within the term “employer.” Mortimer v. Riviera Apts., 122 Idaho 839, 840 P.2d 383 (1992).

Contingent Attorney’s Fees.

Where a claimant retains counsel pursuant to a contingent fee agreement and the industrial commission is required to award attorney’s fees by this section, the commission must base its award on what would be a reasonable fee on a contingent basis. Shea v. Bader, 102 Idaho 697, 638 P.2d 894 (1981).

Employer.

In determining statutory employer status, consideration should be given to such elements as ownership of the premises, proprietorship, virtual proprietorship, management of the business, and source of the payment of workmen’s compensation premiums. Tucker v. Union Oil Co., 100 Idaho 590, 603 P.2d 156 (1979).

Notice.

Where notice for hearing stated that the purpose of the hearing was to “determine the amount of benefits to which claimant is entitled,” the industrial commission’s use of the term “benefits” in the notice was sufficient to give employer notice pursuant to§ 72-713 that the applicability of this section was at issue. Mortimer v. Riviera Apts., 122 Idaho 839, 840 P.2d 383 (1992).

Payment of Premiums.

Commonly, the statutory employer pays the premiums covering his or her employees, since it is the employer’s legal responsibility to insure that employees are covered by workmen’s compensation insurance. Rhodes v. Sunshine Mining Co., 113 Idaho 162, 742 P.2d 417 (1987).

Penalty and Attorney Fees.

Where the record in a workmen’s compensation proceeding indicated that an employer neither had workmen’s compensation insurance at the time of claimant’s industrial accident nor had deposited sufficient security with the commission, the commission did not err in awarding a penalty and attorney’s fee. Thom v. Callahan, 97 Idaho 151, 540 P.2d 1330 (1975).

Strict Liability.

The industrial commission did not err in concluding that an employer failing to secure payment of compensation as required by the workers’ compensation act is strictly liable for the statutory penalty imposed by this section, since this section is unambiguous and requires no showing of bad faith or scienter as a prerequisite to the imposition of the ten percent surcharge, costs or attorney fees. Heese v. A & T Trucking, 102 Idaho 598, 635 P.2d 962 (1981).

Sufficiency of Findings.

Viewing this section, subsection (1) of§ 72-311 and§ 72-312 in pari materia, it is apparent that the legislature intended strict compliance with those provisions requiring the employer to obtain security for payment of compensation to injured employees and that it intended substantial penalties for noncompliance; accordingly, an employer’s good faith but futile attempt to procure insurance did not excuse it from liability for the ten percent surcharge, costs or attorney fees imposed by this section. Heese v. A & T Trucking, 102 Idaho 598, 635 P.2d 962 (1981). Sufficiency of Findings.

The industrial commission’s finding that an employer had failed to file its notice of security as required by§ 72-311 was sufficient to justify the imposition of penalties required by this section, without having to resolve the ultimate issue of coverage between the employer and its insurer. Heese v. A & T Trucking, 102 Idaho 598, 635 P.2d 962 (1981).

Uninsured Contractor.

A statutory employer who carries workers’ compensation insurance is not liable to an employee of an uninsured contractor for the additional ten percent of compensation, plus costs and attorney fees, imposed on an employer who does not carry workers’ compensation insurance. Vickers v. Weightman, 123 Idaho 732, 852 P.2d 484 (1993).

ALR.

§ 72-211. Exclusiveness of employee’s remedy.

Subject to the provisions of section 72-223[, Idaho Code], the rights and remedies herein granted to an employee on account of an injury or occupational disease for which he is entitled to compensation under this law shall exclude all other rights and remedies of the employee, his personal representatives, dependents or next of kin, at common law or otherwise, on account of such injury or disease.

History.

I.C.,§ 72-211, as added by 1971, ch. 124, § 3, p. 422.

Cross References.

Employers’ liability act,§ 44-1401 et seq.

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

The term “this law” near the middle of the section refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Course of Employment.

Employer-Employee Relationship.

When the employee was employed by two employers and one employer was attempting to use the workers’ compensation law as a shield to avoid third-party liability, it was that employer’s duty to prove that the employee was working for the employer when the accident occurred and the fact that the employee was subject to the direction and control of either employer at moment’s notice was not determinative; what the employer had to prove as claimant was that the employee’s injury arose out of and in the course of his employment with the employer. Basin Land Irrigation Co. v. Hat Butte Canal Co., 114 Idaho 121, 754 P.2d 434 (1988). Employer-Employee Relationship.

Although the industrial commission and the district court had concurrent jurisdiction to determine whether they had jurisdiction to consider the claim or hear the case, where a notice of injury was filed with the commission before plaintiffs filed their original complaint with the district court, then the commission had the first right to determine the jurisdictional issue and its determination is res judicata upon that question. Anderson v. Gailey, 97 Idaho 813, 555 P.2d 144 (1976).

In a wrongful death action, the determination of whether the decedent had been an employee of defendant, rather than an independent contractor or a casual employee, while engaged in making repairs to broken equipment at the bottom of a drill shaft, was a question of fact for the jury, for the question bore not only upon the issue of the court’s jurisdiction but also upon the standard of care that defendant owed to the decedent. Anderson v. Gailey, 97 Idaho 813, 555 P.2d 144 (1976).

The mining companies were the statutory employers of the claimant and were immune from tort liability under§ 72-209 and this section, where the mining companies owned the interests being mined within the area, they were proprietors of the mining operation, and they contributed toward the provision of workmen’s compensation benefits to the claimant and similarly situated employees. Rhodes v. Sunshine Mining Co., 113 Idaho 162, 742 P.2d 417 (1987).

Exclusive Remedy.

A person injured in the course of employment has only one claim against the employer, and that claim is under the worker’s compensation statute. Baker v. Sullivan, 132 Idaho 746, 979 P.2d 619 (1999).

In granting summary judgment for the company, whose manager engaged in sexual intercourse with a minor employee, the district court had concluded that the minor suffered an injury, a broken hymen, caused by an accident at work. However, a ruptured hymen was not “an unexpected, undesigned, and unlooked for mishap, or untoward event”; it was something that typically occurred when a virgin engaged in sexual intercourse. Consequently, since there was no accident, as defined by§ 72-102(17)(b) [now (18)(b)], the minor did not suffer a personal injury, as defined by§ 72-102(17)(c) [now (18)(c)], and her tort claims were not preempted by the exclusivity provisions of the Idaho worker’s compensation act. Roe v. Albertson’s, Inc., 141 Idaho 524, 112 P.3d 812 (2005).

Although family members of an employee were entitled to (and did receive) worker’s compensation benefits for the employee’s death, the district court erred by finding that the members’ wrongful death action was barred by the exclusivity rule under the worker’s compensation law. The court failed to consider whether the employer consciously disregarded information suggesting a significant risk to its employees working at or under tables, and, on remand, was to apply the proper standard for proving an act of unprovoked physical aggression. Gomez v. Crookham Co., — Idaho —, 457 P.3d 901 (2020).

Jurisdiction.

Sections 72-201 and this section vest exclusive jurisdiction over claims for injuries arising out of and in the course of employment in the industrial commission; accordingly, the district court properly dismissed an employee’s claim for damages allegedly induced by and during his employment filed directly with the circuit court. Henderson v. State, 110 Idaho 308, 715 P.2d 978, cert. denied, 477 U.S. 907, 106 S. Ct. 3282, 91 L. Ed. 2d 571 (1986).

An employee’s action against the industrial commission and the insurance fund and several of their respective employees alleging that she was injured in an industrial accident and received an inadequate award for those injuries was properly dismissed as district courts are expressly forbidden to exercise any jurisdiction in any cause seeking to in any way interfere with the actions or jurisdiction of the industrial commission. West v. State, 112 Idaho 1038, 739 P.2d 337 (1987).

Legislative Intent.

The express purpose and intent of the legislature in passing the state worker’s compensation law was to provide for the exclusivity of the remedy under the statute for claims arising out of and sustained during the course of employment, to the exclusion of other causes of action. Baker v. Sullivan, 132 Idaho 746, 979 P.2d 619 (1999).

Personal Injury Action Precluded.

Where the plaintiff’s work as an assistant to a truck driver, helping in loading and unloading, involved a small portion of time compared to the amount of time consumed in traveling, for which he was not compensated, such work did not constitute “casual employment” within the meaning of§ 72-212(2), since the employment of the plaintiff did not arise inadvertently or at uncertain times, and the work was an integral part of the employer’s business; thus, the plaintiff was an employee within the meaning of§ 72-204(2), being an assistant to an employee, and thus was precluded from bringing a personal injury action by this section, providing that workmen’s compensation is the exclusive remedy. Wise v. Armold Transf. & Storage Co., 109 Idaho 20, 704 P.2d 352 (Ct. App. 1985).

Where the employee was injured when her foot was partially severed by a lawn mower she was operating because the employer did not use the proper engine or safety devices on the lawn mower, but there was no evidence presented to the trial court that the employer wilfully or without provocation physically attacked the employee, there was no genuine issue of material fact, and the trial court was justified in granting summary judgment against the employee in a civil action against the employer for injuries caused by an intentional tort of the employer during the course of employment since workmen’s compensation provided an exclusive remedy under the circumstances. Kearney v. Denker, 114 Idaho 755, 760 P.2d 1171 (1988).

Remedies.

A statutory employer is responsible for providing workmen’s compensation coverage and, in return, is legally immune from suit by an employee based on injuries suffered in an industrial accident. Tucker v. Union Oil Co., 100 Idaho 590, 603 P.2d 156 (1979).

Idaho workmen’s compensation laws provide the exclusive remedy of an employee against his employer for injuries arising out of and in the course of employment. Yeend v. UPS, Inc., 104 Idaho 333, 659 P.2d 87 (1982).

To recover in a separate action against an employer, a plaintiff must allege the existence of a tort not covered by the workmen’s compensation statute. Yeend v. UPS, Inc., 104 Idaho 333, 659 P.2d 87 (1982). Where the only allegation of wrongdoing on the part of the employer was the allegation that supervisor twice directed claimant to continue working after she informed him that she had been injured in a fall, the claim for emotional distress resulting therefrom did not constitute a separate tort of outrage compensable under a common-law action for intentional infliction of emotional distress; any such claim, to the extent that it constituted a neurosis or other psychological condition traceable in part to an industrial accident and injury was compensable only under the workmen’s compensation scheme. Yeend v. UPS, Inc., 104 Idaho 333, 659 P.2d 87 (1982).

Scope of Employment.

Where the employee was in an automobile accident with the president of one of his employers, and that employer was attempting to use the workers’ compensation law as a shield to avoid third-party tort liability, the burden was on the employer to prove by a preponderance of the evidence that the employee was operating in the scope of his employment when the accident occurred; if the employer failed to meet its burden, then the workers’ compensation laws would not apply and the employee would be free to pursue a third-party civil action against the employer and its president in district court. Basin Land Irrigation Co. v. Hat Butte Canal Co., 114 Idaho 121, 754 P.2d 434 (1988).

Where claimants who were employed by business located primarily in Idaho were injured while on their way to job in state of Washington, in employer’s truck that was being driven by employer’s son, they were injured in the course of their employment and pursuant to this section, worker’s compensation benefits are their exclusive remedy. Hansen v. Estate of Harvey, 119 Idaho 333, 806 P.2d 426 (1991).

Tort Action.

A person injured in the course of employment has only one claim against the employer, and that claim is under the worker’s compensation act, not a tort action, and since claimants were determined to have been injured while in the course of their employment, and since they did not appeal that finding, they are now precluded from bringing a tort action against their employer. Hansen v. Estate of Harvey, 119 Idaho 333, 806 P.2d 426 (1991).

A prior adjudication by the industrial commission on the issue of course of employment is res judicata in a subsequently filed tort action. Hansen v. Estate of Harvey, 119 Idaho 333, 806 P.2d 426 (1991).

Tort Liability of Employer.

The status of a statutory employer does not exempt all such employers from tort liability as third parties under§ 72-223, since the exclusive liability of an employer under§ 72-209(1), and the exclusive remedies of an employee under this section, are both specifically made “subject to the provisions of section 72-223.” Runcorn v. Shearer Lumber Prods., Inc., 107 Idaho 389, 690 P.2d 324 (1984).

Where the record was devoid of any findings or testimony as to the medical expense incurred due to medical malpractice, the industrial commission’s order of an offset of the claimant’s total award to the workers’ compensation surety pursuant to this section for payments made for the claimant’s medical expenses due to the medical malpractice was reversed and remanded for further proceedings to determine the surety’s subrogation rights, with recovery from the malpractice settlement in excess of the surety’s expenditures in connection therewith to remain in the claimant. Presnell v. Kelly, 113 Idaho 1, 740 P.2d 43 (1987). This state’s workmen’s compensation law does not shield an employer of an independent contractor from tort liability for an injury incurred by the independent contractor’s employee. Peone v. Regulus Stud Mills, Inc., 858 F.2d 550 (9th Cir. 1988).

To prove aggression sufficient to maintain an action against the employer for injury caused by the wilful or unprovoked physical aggression of the employer, there must be evidence of some offensive action or hostile attack; it is not sufficient to prove that the alleged aggressor committed negligent acts that made it substantially certain that injury would occur. Kearney v. Denker, 114 Idaho 755, 760 P.2d 1171 (1988).

When interpreting§§ 72-201, 72-209 and 72-211, if an injury is cognizable under the worker’s compensation law, then any common law remedy is barred, but if the injury is not cognizable under workman’s compensation, then the employee is left to a remedy under the common law. Roe v. Albertson’s, Inc., 141 Idaho 524, 112 P.3d 812 (2005).

Waiver of Tort Claim.

The filing of a worker’s compensation claim does not constitute a waiver by the employee of the right to attempt to prove that the injury was caused by the wilful or unprovoked physical aggression of the employer and to maintain a civil action against the employer for injuries that were allegedly caused by an intentional tort of the employer during the course of employment. Kearney v. Denker, 114 Idaho 755, 760 P.2d 1171 (1988).

Decisions Under Prior Law

Construction.

The United States was not an “employer” within the meaning of the workmen’s compensation act so as to bar an action under the wrongful death statute where a workman of the general contractors for a flood control project for the United States fell from a scaffold, and exemption of an “employer” from common law or statutory action for negligence did not apply. Kirk v. United States, 232 F.2d 763 (9th Cir. 1956).

This remedy was purely statutory and was an express departure and innovation so far as the common law was concerned, expressly doing away with common-law actions previously applicable to controversies within the scope of the statute. Gifford v. Nottingham, 68 Idaho 330, 193 P.2d 831 (1948).

Injury Without the State.

The fact that an employee’s injury occurred without the state, did not ipso facto defeat his right to compensation. Dameron v. Yellowstone Trail Garage, 54 Idaho 646, 34 P.2d 417 (1934).

Remedies.

Where employee’s injury was aggravated by the negligence of the physician selected by his employer’s workmen’s compensation insurance carrier in performing examination for carrier’s benefit, employee could not, under Idaho law, maintain action against such carrier for damages. Schulz v. Standard Accident Ins. Co., 125 F. Supp. 411 (E.D. Wash. 1954). Negligence action brought by widow and surviving child of deceased employee who was electrocuted while assisting in the installation of an electric transmission line was precluded since deceased met his death while engaged in the reconductoring of transmission lines, a necessary and customary part of a business conducted by appellee power company and, therefore, even though he was an employee of an independent contractor working on electric power company’s land, he was an employee of the power company within the compensation statute. Beedy v. Washington Water Power Co., 238 F.2d 123 (9th Cir. 1956).

In a diversity action against phosphate producer by employee of subcontractor to recover for personal injuries sustained in the construction of a furnace where there was no showing that the owner of the plant normally did that kind of construction, the assembly of the furnace was the construction business of the subcontractor, and the phosphate producer was not immune from tort liability since he was not the virtual proprietor or operator of such construction business. Ray v. Monsanto Co., 420 F.2d 915 (9th Cir. 1970).

An injured workman may have maintained an action against the physician furnished by the employer, for malpractice in treating injuries received in the course of his employment. Hancock v. Halliday, 65 Idaho 645, 150 P.2d 137 (1943).

The remedy of compensation was exclusive in all cases of injuries sustained by employees except as to right of action for damages against third parties. White v. Ponozzo, 77 Idaho 276, 291 P.2d 843 (1955).

Trucker engaged to haul logs for logging contractors, at rate of pay which included use of equipment, and who was injured while returning from town with tools to repair his truck when struck by contractor’s truck driven by co-employee, could not sue contractor for damages as sole remedy was for compensation, since injury was sustained while engaged in work incidental to his employment. White v. Ponozzo, 77 Idaho 276, 291 P.2d 843 (1955).

As third party was a loaned servant of the trucking company for the purpose of aiding in the unloading of boilers he was transporting at the time of the accident and injury to plaintiff occurred while third party was driving truck out from under boiler as it was being elevated under direction of plaintiff, plaintiff’s exclusive remedy was compensation under the workmen’s compensation law. Cloughley v. Orange Transp. Co., 80 Idaho 226, 327 P.2d 369 (1958).

A state employee injured by an accident arising out of and in the course of her employment could not sue the state in tort. Nichols v. Godfrey, 90 Idaho 345, 411 P.2d 763 (1966).

This statute removed all remedies other than workmen’s compensation, in cases where workmen’s compensation was applicable, from “such employee, his personal representatives, dependents, or next of kin.” Stample v. Idaho Power Co., 92 Idaho 763, 450 P.2d 610 (1969).

Since physical injuries resulting from emotional shock were covered by the workmen’s compensation law, female employee was precluded from bringing an action against her employer for damages arising from accident when she was left standing naked in front of her fellow employees after her clothing had become entangled in a machine which she was cleaning, if she was seeking recovery for physical injuries and if she sought recovery for pure emotional trauma no common-law right of recovery existed. Summers v. Western Idaho Potato Processing Co., 94 Idaho 1, 479 P.2d 292 (1970).

Employee who suffered injuries in the course of performing his assigned job and received workmen’s compensation therefor was not allowed to maintain a common law action against employer on ground that employer’s knowledge and disregard of numerous similar accidents amounted to an intentional tort. Provo v. Bunker Hill Co., 393 F. Supp. 778 (D. Idaho 1975). Where plaintiff was injured in the course of his employment and received workmen’s compensation, he was prevented by former law providing for exclusiveness of employee’s remedy from also recovering by a suit for damages against his employer based on the theory that employee was a third party beneficiary of a labor management agreement which had been violated by employer thereby resulting in the employee’s accident. Provo v. Bunker Hill Co., 393 F. Supp. 778 (D. Idaho 1975).

Once the employer-employee relationship is shown to exist, then any common law suit against the employer by employee for injuries sustained on the job is barred. Provo v. Bunker Hill Co., 393 F. Supp. 778 (D. Idaho 1975).

Where wife filed a claim under the workmen’s compensation act for loss of consortium due to injuries suffered by her husband, such claim was properly denied as the claim arose out of husband’s personal injuries which had already been compensated for under the workmen’s compensation law. Coddington v. Lewiston, 96 Idaho 135, 525 P.2d 330 (1974).

ALR.

Postaccident conduct by employer, employer’s insurer, or employer’s employees in relation to workers’ compensation claim as waiving, or estopping employer from asserting, exclusivity otherwise afforded by workers’ compensation statute. 120 A.L.R.5th 513.

Construction and application of exclusive remedy rule under state workers’ compensation statutes with respect to liability for injury or death of employee as passenger in employer-provided vehicle — Requisites for, and factors affecting, applicability and who may invoke rule. 42 A.L.R.6th 545.

Construction and application of exclusive remedy rule under state workers’ compensation statute with respect to liability for injury or death of employee as passenger in employer-provided vehicle — Against whom may rule be invoked and application of rule to particular situations and employees. 43 A.L.R.6th 375.

Exclusive remedy provision of state workers’ compensation statute as applied to injuries sustained during or as the result of horseplay, joking, fooling, or the like. 44 A.L.R.6th 545.

Cross References.

Definition of employment,§ 72-204.

Industrial commission,§ 72-501 et seq,

Amendments.

This section was amended by two 1982 acts which appear to be compatible and have been compiled together. The amendment by ch. 176 inserted “if the corporation has directors” in subdivision (6). The amendment by ch. 244 added the second and third sentences of subdivision (8).

The 2006 amendment, by ch. 231, deleted former subsection (6), which read: “Employment which is not carried on by the employer for the sake of pecuniary gain,” and redesignated the remaining subsections accordingly.

The 2014 amendment, by ch. 347, added “if the employer is the owner of a sole proprietorship or a single member limited liability company that is taxed as a sole proprietorship” in subsection (4).

Compiler’s Notes.

Section 5 of S.L. 1996, ch. 194 as amended by § 1 of S.L. 1996, ch. 372 read: “Subsections (2) and (3) of§ 41-1612, Idaho Code, as added by Section 1 of this act shall be reviewed by the Legislature during the regular legislative session in 2001, for their adequacy in relation to worker’s compensation insurance rates.”

The term “this law” near the beginning of the introductory paragraph refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Effective Dates.

Section 2 of S.L. 1972, ch. 20 declared an emergency. Approved February 19, 1972.

Section 2 of S. L. 1974, ch. 94 provided this act should be in effect on and after July 1, 1974.

Section 3 of S.L. 1981, ch. 190 declared an emergency. Approved March 31, 1981.

Section 6 of S.L. 1996, ch. 194 provided that the act should be in full force and effect on and after January 1, 1997.

CASE NOTES

Burden of Proof.

After a workman establishes an employer-employee relationship, the burden is on the employer to prove that he is within an exception to coverage as set forth in this section. Backsen v. Blauser, 95 Idaho 811, 520 P.2d 858 (1974).

Casual Employment.

In a wrongful death action, the determination of whether the decedent had been an employee of defendant, rather than an independent contractor or a casual employee, while engaged in making repairs to broken equipment at the bottom of a drill shaft, was a question of fact for the jury, for the question bore not only upon the issue of the court’s jurisdiction but also upon the standard of care that defendant owed to the decedent. Anderson v. Gailey, 97 Idaho 813, 555 P.2d 144 (1976).

Casual employment includes only that employment which arises occasionally or incidentally or which comes at uncertain times or at irregular intervals. Tuma v. Kosterman, 106 Idaho 728, 682 P.2d 1275 (1984).

Where the plaintiff’s work as an assistant to a truck driver, helping in loading and unloading, involved a small portion of time compared to the amount of time consumed in traveling, for which he was not compensated, such work did not constitute “casual employment” within the meaning of subdivision (2) of this section, since the employment of the plaintiff did not arise inadvertently or at uncertain times, and the work was an integral part of the employer’s business. Wise v. Armold Transf. & Storage Co., 109 Idaho 20, 704 P.2d 352 (Ct. App. 1985).

Daily work of a workmen’s compensation claimant who fed dogs and cleaned kennels for a dog breeder was held to be an integral part of employer’s business and was neither occasional, incidental, irregular, nor at uncertain times and hence did not fall within the “casual employment” exception. Partello v. Stipa, 115 Idaho 522, 768 P.2d 785 (1989).

Casual employment is defined as employment that is only occasional, or comes at uncertain times, or at irregular intervals, and whose happening cannot be reasonably anticipated as certain or likely to occur or to become necessary; it is employment that arises only occasionally or incidentally and is not part of the usual trade or business of the employer. Larson v. Bonneville Pac. Servs. Co., 117 Idaho 988, 793 P.2d 220 (1990).

Where the record showed that claimant was employed by company that maintains and operates power plants and was employed for the sole task of replanting trees; that this task was to be accomplished in two to three weeks; that neither employer nor claimant anticipated that claimant would ever be employed again by employer; that the need for reforestation and revegetation occurs, if at all, at uncertain times or at irregular intervals, and its happening cannot be reasonably anticipated as likely to occur or become necessary; and that revegetation was not the regular business of employer, the record demonstrated substantial and competent evidence to support the commission’s finding that employee’s employment was casual. Larson v. Bonneville Pac. Servs. Co., 117 Idaho 988, 793 P.2d 220 (1990). Defendant, a physical therapy employer, was not liable under the state’s worker’s compensation law, since the plaintiff/employee fell within the casual employment exemption in subsection (2): his payment was not typical of a permanent or regular employee and he maintained primary control over his own employment. Stringer v. Robinson, 155 Idaho 554, 314 P.3d 609 (2013).

Determination of Claimant’s Status.

Idaho industrial commission’s determination of an employer-employee relationship was based upon substantial and competent evidence, where the employer trained the claimant, provided all of the tools for the work the claimant did, decided which tasks the claimant was to complete, and generally controlled the claimant’s work. Stoica v. Pocol, 136 Idaho 661, 39 P.3d 601 (2001).

Employee of Exempt and Nonexempt Employer.

An employee, who worked both in employer’s exempt seed potato operation and in employer’s covered potato marketing business, was covered by workmen’s compensation for an injury suffered while working in the marketing enterprise. Goodson v. L. W. Hult Produce Co., 97 Idaho 264, 543 P.2d 167 (1975).

Where an employer is engaged in both a covered occupation and an exempt occupation, a special employee employed to work exclusively in the covered occupation is covered; thus, since a horse farm owner was involved in two business activities, horse breeding and horse racing, and since horse racing is a covered occupation, the injured claimant who was employed to work exclusively in this enterprise, was also covered for purposes of workmen’s compensation. Tuma v. Kosterman, 106 Idaho 728, 682 P.2d 1275 (1984).

Where homeowner took an active role in the construction of his house by hiring subcontractors, providing them the necessary materials and coordinating their services, homeowner was an “employer” under the terms of§ 72-102 however, homeowner was exempt from worker’s compensation liability because he did not employ worker for the sake of pecuniary gain. Dewey v. Merrill, 124 Idaho 201, 858 P.2d 740 (1993).

“Employment.”

The term “employment” as found in subsection (9) [now (8)] of this section does not signify the moment upon which the employment contract is entered into, but rather is indicative of the time at which the pilot is actually in the air flying the plane. Hamilton v. Reeder Flying Serv., 135 Idaho 568, 21 P.3d 890 (2001).

Horse Breeding.

Where a horse farm owner testified that approximately 50 percent of the farm revenue stemmed from winning races with his horses and the other 50 percent from the sale of horses, one could not say that the general nature of the owner’s business was primarily horse breeding. Tuma v. Kosterman, 106 Idaho 728, 682 P.2d 1275 (1984).

Partnership.

Under this section, a working member of a partnership is not covered under Idaho’s workers’ compensation law. Hoskins v. Circle A Constr., Inc., 138 Idaho 336, 63 P.3d 462 (2003).

Spray Pilots.

The exemption for agricultural spray pilots codified in subsection (9) [now (8)] of this section as it read prior to April of 2000 is triggered so long as the employer obtains the requisite insurance and the Commission grants approval prior to the date of death or injury. Hamilton v. Reeder Flying Serv., 135 Idaho 568, 21 P.3d 890 (2001).

Decisions Under Prior Law

Agricultural Pursuits.

Agricultural pursuits was a broader term than agricultural labor and may have properly included every process and step taken and necessary to the completion of a finished farm product. Cook v. Massey, 38 Idaho 264, 220 P. 1088 (1923).

Operation of commercial threshing machine outfit is an agricultural pursuit. Cook v. Massey, 38 Idaho 264, 220 P. 1088 (1923); Hubble v. Perrault, 78 Idaho 448, 304 P.2d 1092 (1956).

Where employee in agricultural pursuit was injured before employer had elected to have act apply thereto, he was not entitled to protection hereunder. Kindall v. McBirney, 52 Idaho 65, 11 P.2d 370 (1932); Gloubitz v. Smeed Bros., 53 Idaho 7, 21 P.2d 78 (1933); Crowley v. Idaho Indus. Training Sch., 53 Idaho 606, 26 P.2d 180 (1933); Dorrell v. Norida Land & Timber Co., 53 Idaho 793, 27 P.2d 960 (1933); Mundell v. Swedlund, 59 Idaho 29, 80 P.2d 13 (1938).

Agricultural pursuit did not include commercial delivery of horses, because it was not work carried on by the particular employer, a sales stockyard operator, as an agricultural pursuit on open ranges or in enclosed fields. Gloubitz v. Smeed Bros., 53 Idaho 7, 21 P.2d 78 (1933); Smythe v. Phoenix, 63 Idaho 585, 123 P.2d 1010 (1942). In connection with what constitutes an agricultural pursuit within the meaning of the workmen’s compensation law, such law was construed liberally. Dorrell v. Norida Land & Timber Co., 53 Idaho 793, 27 P.2d 960 (1933); Mundell v. Swedlund, 59 Idaho 29, 80 P.2d 13 (1938).

Where the evidence was clear and undisputed that, with the exception of perhaps a couple of hours on the day of the accident, the deceased devoted all of his time to and earned his livelihood by (when employed by his employer) performing the duties of a watchman and the work and labor of general utility man, this supports findings and judgment that at the time of the accident, resulting in his death, he was not engaged in agricultural pursuit and his dependents were entitled to compensation. Dorrell v. Norida Land & Timber Co., 53 Idaho 793, 27 P.2d 960 (1933).

A workman was not a farm laborer and therefore was not engaged in agricultural pursuit simply because at the moment he was doing work on a farm, but rather, the nature of all of the duties he discharged were looked to to determine whether or not he was classified as engaged in an agricultural pursuit. Mundell v. Swedlund, 59 Idaho 29, 80 P.2d 13 (1938).

Where the evidence shows there were but two hay cutters in the community, and but a limited quantity of hay ground, and that commercially in the greater part that it had been the employer’s custom from year to year to go about from farm to farm grinding hay at a contract price, this was sufficient to require a finding that neither the employer nor the employee were engaged in farming or performance of farm labor as generally understood. They were engaged in a special work, not ordinarily done by farmers, — a business or industrial pursuit in and of itself, entirely separate and apart from farming, and they did not come within the provision of the compensation law pertaining to agricultural pursuit. Mundell v. Swedlund, 59 Idaho 29, 80 P.2d 13 (1938).

The delivery of peaches, necessitating a trip of several hundred miles, by a truck driver for his employer, a fruit grower and dealer, who did not raise such peaches but purchased them for resale, was not “agricultural employment” within the exception from coverage of the workmen’s compensation act. Mulanix v. Falen, 64 Idaho 293, 130 P.2d 866 (1942).

The question of whether deceased employee was engaged in industrial work and covered by the compensation act or whether his work was agricultural and not covered was a question of fact for the industrial board to determine. Reed v. Russell, 67 Idaho 84, 172 P.2d 853 (1938).

Claimant who was injured while unloading logs from employer’s farm at the mill was not entitled to compensation where employer had not elected to come under the workmen’s compensation act, since work performed at the time of the injury was incidental to farming operation of the employer. Bartlett v. Darrah, 76 Idaho 460, 285 P.2d 138 (1955).

Where claimant was hired to perform exclusively agricultural labor in an agricultural pursuit and was engaged in such pursuit at the time of the accident, he being struck by a truck while pitching pea vines into a threshing machine, regardless of the fact that his employer was also engaged in processing business, a covered employment, such employee hired exclusively to work in the exempt occupation was not covered. Hubble v. Perrault, 78 Idaho 448, 304 P.2d 1092 (1956).

The term livestock had reference to and included domestic animals ordinarily found upon farms and public ranges and not to wild life raised in captivity; therefore, claimant who worked as a laborer on mink farm was engaged in covered employment. Collins v. Moyle, 83 Idaho 151, 358 P.2d 1035 (1961). While the court may properly have considered federal acts and decisions and the decisions of other states in determining what constituted an “agricultural pursuit” or a definition of “livestock” where its meaning was in doubt, it was not at liberty to amend the compensation act by incorporating therein the exceptions specifically set out in federal acts or the Idaho employment security act. Collins v. Moyle, 83 Idaho 151, 358 P.2d 1035 (1961).

Fact that legislature had amended this section since the adoption in the federal law and the Idaho employment security act of a definition of livestock which included wild and furbearing animals without broadening the definition of livestock herein to include such animals must have been construed as a refusal of the legislature to broaden the exemption from workmen’s compensation coverage. Collins v. Moyle, 83 Idaho 151, 358 P.2d 1035 (1961).

The operator of a tractor in plowing and seeding pursuant to a contract whereby the employer engaged to plow and seed in crested wheat 2100 acres of federal land for the bureau of land management of the department of the interior was engaged in an agricultural pursuit within the meaning of the statute. Reedy v. Trummell, 90 Idaho 318, 410 P.2d 654 (1966).

A horse trainer employed by a corporation engaged in the business of raising, breeding, training, boarding, and selling race horses was not employed in an agricultural pursuit within the meaning of the statute. Manning v. Win Her Stables, Inc., 91 Idaho 549, 428 P.2d 55 (1967).

Burden of Proof.

Employer claiming exemption has burden of proof. Gloubitz v. Smeed Bros., 53 Idaho 7, 21 P.2d 78 (1933). But see Arbogast v. Jerome Co-op. Creamery, 65 Idaho 556, 149 P.2d 230 (1944).

After the workman established the employer-employee relationship, the employer had the burden of proving his exemption and employer met the burden by presenting proof that employer did not build the house for pecuniary gain or for a business related purpose. Lynskey v. Lind, 94 Idaho 788, 498 P.2d 1261 (1972).

Casual Employment.

The word “casual” applied to the employment, and not to the employee, and time had confirmed the wisdom of the conclusion, early arrived at by the English authorities, that no hard-and-fast definition of the term “casual” was advisable, and that each case must be decided quite largely upon its own special facts. Flynn v. Carson, 42 Idaho 141, 243 P. 818 (1926); Dillard v. Jones, 58 Idaho 273, 72 P.2d 705 (1937); Rabideau v. Cramer, 59 Idaho 154, 81 P.2d 403 (1938).

Exclusion was of “casual employment” not necessarily “casual employee”; not those persons but those employments which were casual, were necessarily excluded. Flynn v. Carson, 42 Idaho 141, 243 P. 818 (1926); Orr v. Boise Cold Storage Co., 52 Idaho 151, 12 P.2d 270 (1932); Dillard v. Jones, 58 Idaho 273, 72 P.2d 705 (1937); Rabideau v. Cramer, 59 Idaho 154, 81 P.2d 403 (1938); Bigley v. Smith, 64 Idaho 185, 129 P.2d 658 (1942).

Employment which was merely incidental or occasional, without regularity or for a limited and temporary purpose, was not a regularly recurring employment which was customary and to be anticipated with regularity, with its hazard a part of the overhead of the industry. Flynn v. Carson, 42 Idaho 141, 243 P. 818 (1926); Orr v. Boise Cold Storage Co., 52 Idaho 151, 12 P.2d 270 (1932); Rabideau v. Cramer, 59 Idaho 154, 81 P.2d 403 (1938).

An employee employed at $.75 an hour to calcimine the walls and ceiling of a place of business was engaged in “casual employment,” so that an injury sustained was not compensable in the event the employer had not elected to come within the workmen’s compensation act where the employment was without regularity and for a limited and temporary purpose of redecorating a place of business. Dawson v. Joe Chester Artificial Limb Co., 62 Idaho 508, 112 P.2d 494 (1941). Work being done by claimant in painting part of a public building when injured was “casual employment” within the exclusion of the workmen’s compensation act. Ross v. Reynolds, 64 Idaho 87, 127 P.2d 775 (1942).

Claimant, injured in repairing the building, was engaged in “casual employment” within the meaning of the statute, though employer owned several buildings and claimant made all repairs thereon. Bigley v. Smith, 64 Idaho 185, 129 P.2d 658 (1942).

Intermittent employment of a truck owner by a fruit grower and seller to drive the truck in delivering fruit to markets was not casual within the exception of “casual employment” from the coverage of the workmen’s compensation act. Mulanix v. Falen, 64 Idaho 293, 130 P.2d 866 (1942).

Making drying trays which were an essential part of the equipment of a creamery engaged in the manufacturing of casein was as to the creamery only “casual employment,” excluded from coverage of workmen’s compensation act, in the absence of a showing of a regular or periodical custom of the creamery to employ workmen to make such trays or that the employment of workmen to make trays was essentially a part of the creamery’s business. Arbogast v. Jerome Co-op. Creamery, 65 Idaho 556, 149 P.2d 230 (1944).

Carpenter, who watched buildings of defendant for repair, and when they needed repair went and fixed them, could not recover compensation when he fell from a ladder while replacing a chimney jack, as such employment was casual. Schindler v. McFee, 69 Idaho 436, 207 P.2d 1158 (1949).

Where dairy from time to time hired deceased to dig cesspools in series of three as additional cesspools were required, the digging of cesspools by deceased was not casual. Fitzen v. Cream Top Dairy, 73 Idaho 210, 249 P.2d 806 (1952).

Casual employment was employment which arose occasionally or incidentally at irregular intervals for a limited or temporary purpose and whose happening could not have been reasonably anticipated as certain or likely to occur and which was not a usual concomitant of the business, trade or profession of the employer. Vogl v. Smythe, 74 Idaho 115, 258 P.2d 355 (1953).

Claimant hired by the hour to drag county road leading to employer’s residence and to clean up driftwood on the beach was engaged in casual employment and barred from compensation benefits. Vogl v. Smythe, 74 Idaho 115, 258 P.2d 355 (1953).

If employment was casual, the employee was excluded from benefits of the act unless employer prior to accident had elected in writing to come under the act. Vogl v. Smythe, 74 Idaho 115, 258 P.2d 355 (1953).

A painter employed to paint the eaves or fascia of a floral building, an operation last performed about four years before, was engaged in casual employment. Wachtler v. Calnon, 90 Idaho 468, 413 P.2d 449 (1966).

A horse trainer for an employer engaged in the business of raising, breeding, training, boarding, and selling race horses, whose employment was a necessary and integral part of his employer’s business, was not a casual employee, even though he sometimes worked for others, worked at his own hours, and was paid on the basis of horses trained rather than hours worked. Manning v. Win Her Stables, Inc., 91 Idaho 549, 428 P.2d 55 (1967), overruled on other grounds, Tuma v. Kosterman, 106 Idaho 728, 682 P.2d 1275 (1984). Where employee, an office manager for employer in state of Idaho, was directed to go to Oregon for the purpose of establishing a new office and to perform such incidental duties as necessary, and where he was killed in Oregon while en route, his employment could not be designated as casual employment. Heck v. Dow, Inc., 93 Idaho 377, 461 P.2d 717 (1969).

Construed Liberally.

Court should not have endeavored by construction to extend its provisions to persons not intended to be included, but it shall be so construed as to carry out its purposes, and, so far as is reasonable, to secure its benefits to all those who were intended to receive them. McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068 (1921); Flynn v. Carson, 42 Idaho 141, 243 P. 818 (1926).

Where a partnership consisted of father and son the fact that an injured employee happened to be the son and brother respectively of the partners did not exclude him from the benefits of the workmen’s compensation act. Holt v. Spencer Lumber Co., 68 Idaho 478, 199 P.2d 268 (1948).

Domestics.

Watchman employed by group of businessmen to watch their floathouses on lake was not an employee in their businesses where floathouses were primarily maintained for social enjoyment of friends and families of owners. Doyal v. Hoback, 75 Idaho 431, 272 P.2d 313 (1954).

Employer Engaged in Covered and Exempt Occupations.

Where the employer was engaged in both a covered occupation and an exempt occupation, a special employee employed to work exclusively in the covered occupation was covered, and likewise an employee hired to work exclusively in an exempt occupation was not covered, regardless of which occupation was the principal one of the employer. Hubble v. Perrault, 78 Idaho 448, 304 P.2d 1092 (1956).

Federal Flood Control Project.

The construction of a flood control project by the United States was without financial gain to itself and was similar to an enterprise carried on by a church corporation without pecuniary gain, and under such analogy, since the church corporation would have been subject to a suit for damages for negligence so also was the government liable for its negligence in connection with the flood project under the Federal Tort Claims Act. Kirk v. United States, 232 F.2d 763 (9th Cir. 1956).

Members of Employer’s Family.

Son, living at home with his father, a partner in defendant partnership, could not recover compensation for injuries sustained while driving father’s personal truck on a job though partnership handled the payroll, since father, the direct employer, was not liable for compensation as his son was living at home. Brewster v. McComb, 78 Idaho 228, 300 P.2d 507 (1956).

Pecuniary Gain.

Where claimant who lived at home with his father was employed by partnership consisting of his father and two brothers, he was employed by the partnership, not by his father as an individual, hence he did not come within exemption and therefore was entitled to compensation for injuries received in course of his employment. Carter v. Carter Logging Co., 83 Idaho 50, 357 P.2d 660 (1960). Pecuniary Gain.

Where employer was engaged in the enterprise for pecuniary gain, it was immaterial whether or not he was making a profit at time employee was injured. Modlin v. Twin Falls Canal Co., 49 Idaho 199, 286 P. 612 (1930).

If a servant was acting for and at the request of his employer in making a trip, the fact that the employer made no profit out of the venture or incidental to it was immaterial. Dameron v. Yellowstone Trail Garage, 54 Idaho 646, 34 P.2d 417 (1934).

A real estate broker could not escape liability to a carpenter engaged in repairing a building, when injured on the second day of employment, on his contentions that it was casual employment, and because he was not engaged in business for pecuniary gain because he lost money on the transaction. Dillard v. Jones, 58 Idaho 273, 72 P.2d 705 (1937).

Public Employments.

Where an employee of the Idaho industrial training school received an injury arising out of, and in the course of, his employment, his right to compensation could not be defeated by the contention that he was engaged in an agricultural pursuit since the law provided that the workmen’s compensation act applied to employees of school districts, which was sufficient to authorize the award of compensation. Crowley v. Idaho Indus. Training Sch., 53 Idaho 606, 26 P.2d 180 (1933).

Where a president of a state normal school, while traveling on a highway to attend a meeting of a state educational association, lost his life, though the board of education had not filed an election with the industrial accident board [now industrial commission], and the employment was not carried on by the employer for pecuniary gain, his dependents were entitled to compensation, since the excepted employments from the operation of the act only applied to private employment and not to that of the state. Bocock v. State Bd. of Educ., 55 Idaho 18, 37 P.2d 232 (1934). See also England v. Fairview School Dist. No. 16, 58 Idaho 633, 77 P.2d 655 (1938).

ALR.

Validity, construction, and application of statutory provisions exempting or otherwise restricting farm and agricultural workers from worker’s compensation coverage. 40 A.L.R.6th 99.

Compiler’s Notes.

The bracketed insertions were added by the compiler to conform to the statutory citation style.

The term “the law” near the end of the first sentence refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Decisions Under Prior Law

Election of Coverage.

Requirements for election of coverage were mandatory and prerequisite to jurisdiction of board, which could not be acquired by estoppel, agreement, waiver or conduct. Kindall v. McBirney, 52 Idaho 65, 11 P.2d 370 (1932).

Claimant who was injured while unloading logs from employer’s farm at the mill was not entitled to compensation where employer had not elected to come under the workmen’s compensation act, since work performed at the time of the injury was incidental to farming operation of the employer. Bartlett v. Darrah, 76 Idaho 460, 285 P.2d 138 (1955).

The widow and dependents of one killed in the operation of a tractor for an employer who had contracted to plow and seed in crested wheat 2100 acres of federal land for the bureau of land management of the department of the interior and who had not elected to come under the workmen’s compensation act were not entitled to compensation. Reedy v. Trummell, 90 Idaho 318, 410 P.2d 654 (1966). A painter injured while painting the eaves or fascia of a floral building, for which he had been specially employed and which operation was last performed about four years before, was not entitled to compensation, since the employer had not elected coverage of such work under the workmen’s compensation act. Wachtler v. Calnon, 90 Idaho 468, 413 P.2d 449 (1966).

Compiler’s Notes.

This section, which comprised I.C.,§ 72-215, as added by 1971, ch. 124, § 3, p. 422, was repealed by S.L. 1972, ch. 354, § 1.

Compiler’s Notes.

The term “this law” near the beginning of subsection (1) refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

The bracketed insertion near the end of subsection (1) was added by the compiler to conform to the statutory citation style.

Employee.

Employer.

Worker hired by subcontractor to shake roof on part time basis was ruled an employee of general contractor for the purpose of determining liability for worker’s compensation benefits; although worker was paid on a production basis, subcontractor had right to control worker’s work, the only major item of equipment was, in essence, supplied by subcontractor who rented the equipment from the worker, and the subcontractor and worker had the right to terminate their relationship at will and without liability. Roman v. Horsley, 120 Idaho 136, 814 P.2d 36 (1991). Employer.

Trial court erred in finding that a farm, as a mere landowner, was a decedent’s statutory employer, because nothing in the record indicated that the farm was engaged in the business of hauling wastewater for pecuniary gain, which was the work being done by the decedent. The farm was not a statutory employer under§ 72-102 or this section, and was not entitled to the immunity provided by§ 72-223. Venters v. Sorrento Del., Inc., 141 Idaho 245, 108 P.3d 392 (2005).

Worker was the direct employee of the contractor, which in turn contracted with the respondents, and at the time of his injury, the worker was doing the work his employer had contracted to do; thus, the respondents would not have been permitted to escape liability to the worker if the employer had not complied with§ 72-301; hence, they were employers as contemplated in this section. Kolar v. Cassia County Idaho, 142 Idaho 346, 127 P.3d 962 (2005).

Statutory Employer.

In a personal injury and wrongful death suit by family members of employees of a contractor hired by the state to work on a highway, because the state had expressly hired the services of the contractor and was liable to pay the employees workers compensation benefits if their direct employer did not, state was a statutory employer and was entitled to immunity under the exclusive remedy rule. Fuhriman v. State, 143 Idaho 800, 153 P.3d 480 (2007).

Defendant, a physical therapy employer, was not liable under the state’s worker’s compensation law, since the plaintiff/employee fell within the casual employment exemption in§ 72-212(2): his payment was not typical of a permanent or regular employee and he maintained primary control over his own employment. Stringer v. Robinson, 155 Idaho 554, 314 P.3d 609 (2013).

Subcontractors.

The industrial commission erred in holding that the lumber mill was not liable for subcontractor’s employee’s worker’s compensation benefits. Defendant lumber mill was liable to claimant, because defendant hired a contractor who hired a subcontractor who had not complied with the worker’s compensation provisions. Spencer v. Allpress Logging, Inc., 134 Idaho 856, 11 P.3d 475 (2000).

An employer who makes use of a contractor’s or subcontractor’s employees qualifies as a category one statutory employer and is immune from suits in tort in case of injury to any of those employees. Ewing v. DOT, 147 Idaho 305, 208 P.3d 287 (2009).

Tort Liability of Employer.

This state’s workmen’s compensation law does not shield an employer of an independent contractor from tort liability for an injury incurred by the independent contractor’s employee. Peone v. Regulus Stud Mills, Inc., 858 F.2d 550 (9th Cir. 1988).

Section 72-102 defines “employer” more broadly than under common law; “employer” not only includes an employee’s direct employer, but includes any contractors and subcontractors as well. Should an employee’s direct employer fail to carry worker’s compensation, these “statutory employers” are also liable for compensation owing to the injured employee. Smith v. O/P Transp., 128 Idaho 697, 918 P.2d 281 (1996). Trial court correctly determined that a general contractor was immune from third-party tort liability pursuant to§ 72-223 of the Idaho worker’s compensation act as a general contractor, given the definitions of employer under this section and§ 72-102. Robison v. Bateman-Hall, Inc., 139 Idaho 207, 76 P.3d 951 (2003).

Trial court properly granted summary judgment to a factory in a wrongful death action against it by a decedent’s survivors because the factory qualified as the decedent’s statutory employer, pursuant to§ 72-102(12)(a) and this section, due to its contractual relationship with the decedent’s employer for wastewater hauling services. The factory was immune from third-party tort liability under§ 72-223 of the Idaho worker’s compensation act. Venters v. Sorrento Del., Inc., 141 Idaho 245, 108 P.3d 392 (2005).

Employer food service supplier was immune to liability for injuries received by an employee of its subcontractor, because the subcontractor had properly provided workers’ compensation coverage for its employees. Gonzalez v. Lamb Weston, Inc., 142 Idaho 120, 124 P.3d 996 (2005).

Decisions Under Prior Law

Construction.

It was the evident intent of the legislature to require the original employer, contractor and subcontractor to pay compensation to workmen injured on the job whether they were employed by the original owner, employer, contractor or by a subcontractor. Hiebert v. Howell, 59 Idaho 591, 85 P.2d 699 (1938).

The relation established by the statute is purely statutory. The legislature, for the purposes of the compensation act, created the relation of employer and employee between independent groups who never before had been and did not under the common law, bear that relation to each other. It forced liability on parties who were not in privity of contract. Gifford v. Nottingham, 68 Idaho 330, 193 P.2d 831 (1948).

Creditor and Debtor.

Where a creditor secured a conditional sales contract of a saw mill by a chattel mortgage on the equipment and timber, and at no time subsequent to the sale did he hire, pay, direct, or discharge men, nor did he control the debtor’s operation, nor became liable for losses, or share in the profits, the relationship of creditor and debtor was established, not contractor, subcontractor, or partner. McGee v. Koontz, 70 Idaho 507, 223 P.2d 686 (1950). Proprietor’s liability extended only to injuries sustained while working in proprietor’s business under his contract. Construction partnership employing contractor was not liable for contractor’s truck driver’s fatal injury while on errand for contractor. Palmer v. J.A. Terteling & Sons, 52 Idaho 170, 16 P.2d 221 (1932).

The statute making an “employer,” who was subject to the provisions of the act, liable for compensation to an employee of a contractor or subcontractor under such employer, did not apply to an owner of premises on which a dwelling was being constructed, who had no right of control over the laborers directly employed by an uninsured contractor, and who was not an employer. Moon v. Ervin, 64 Idaho 464, 133 P.2d 933 (1943).

A lumber company furnishing most of the materials for the construction of a dwelling, advancing some money to an uninsured contractor, but not inducing any one to believe that the company was the employer of the workmen engaged by the contractor, or that the company had any interest in the construction of the dwelling, was not “estopped” to deny that it was the employer of the contractor’s workmen so as to impose liability for compensation on the company. Moon v. Ervin, 64 Idaho 464, 133 P.2d 933 (1943).

Where a lumber company supplying most of the material for the construction of a dwelling had no interest in the profits made by an uninsured contractor, though it was active in assisting the contractor in obtaining the contract and drew the plans and specifications and advanced some money for the payment of labor bills, such company was not a “joint adventurer” with the contractor, and the contractor was not an “independent contractor” of the company so as to impose liability on the company for injuries sustained by a workman of the contractor. Moon v. Ervin, 64 Idaho 464, 133 P.2d 933 (1943).

Where oil company exercised discretion and control over employee of lessee of premises owned by former during absence of latter, it was properly held that both the oil company and lessee were employers of injured employee. Moser v. Utah Oil Ref. Co., 66 Idaho 710, 168 P.2d 591 (1946).

Where one sold a saw mill on a conditional sales contract, secured the money owed by a chattel mortgage, and received part payment from the produce of the machinery sold, and who exercised no control over the business, and had no interest in the enterprise except as a creditor, he was not a proprietor or operator of the business conducted by the purchaser. McGee v. Koontz, 70 Idaho 507, 223 P.2d 686 (1950).

Where respondent company at the time of claimant’s injury was an employer subject to the provisions of the workmen’s compensation act and where its contractor was the employer of claimant, such respondent was claimant’s statutory employer, therefore claimant could elect against which one to pursue his remedy, but, having chosen the statutory employer, his remedy was subject to whatever defenses the law afforded his employer. Findley v. Flanigan, 84 Idaho 473, 373 P.2d 551 (1962), overruled on other grounds, Christensen v. Calico Constr. & Dev. Co., 97 Idaho 327, 543 P.2d 1167 (1975).

Where the work which was performed was a regular and predictable part of the work generally done by the defendant’s own employees, he became the statutory employer of the subcontractor’s employees where he had contracted that work to a subcontractor or to an independent contractor. Adam v. Titan Equip. Supply Corp., 93 Idaho 644, 470 P.2d 409 (1970).

Employer’s Liability.

An employer was liable for compensation to an employee of a subcontractor working for this employer at the time of the accident. In re Fisk, 40 Idaho 304, 232 P. 569 (1925). The failure of the owner of premises on which a dwelling was being constructed, who was not an “employer” within the meaning of the workmen’s compensation act defining that term, or a contractor or subcontractor within said act prescribing the means of securing compensation to employees, to enforce against the contractor and the contractor’s surety provision of the contract requiring the contractor to maintain insurance to protect the owner from claims under the act, did not render the owner secondarily liable to a laborer injured in the course of the construction of the building. Moon v. Ervin, 64 Idaho 464, 133 P.2d 933 (1943).

Son, living at home with his father, a partner in defendant partnership, could not recover compensation for injuries sustained while driving father’s personal truck on a job though partnership handled the payroll, since father, the direct employer, was not liable for compensation as his son was living at home. Brewster v. McComb, 78 Idaho 228, 300 P.2d 507 (1956).

Joint Liability.

While holding the employer liable, this language gave him such a recourse against the contractor as made the latter in effect primarily responsible. Modlin v. Twin Falls Canal Co., 49 Idaho 199, 286 P. 612 (1930).

The fact that the liability extended to both the original contractor and subcontractor, so far as the employer was concerned, and gave to the employer the right to recover any amount paid by him from the contractor or subcontractors, did not prevent or interfere with the employee making his claim and asserting his rights directly against either or all, and if for any reason the employer desired to have the subcontractor brought in and bound by any order or judgment that may have been entered against the employer, it was his duty to have such subcontractor made a party to the proceedings. Hiebert v. Howell, 59 Idaho 591, 85 P.2d 699 (1938); Gifford v. Nottingham, 68 Idaho 330, 193 P.2d 831 (1948).

Employee of county was entitled to bring third party action against construction company engaged in building new bridge for damages sustained as result of injuries caused by negligent operation of dragline by employee of construction company while removing debris of old bridge torn down by county. Brown v. Arrington Constr. Co., 74 Idaho 338, 262 P.2d 789 (1953).

Owner or proprietor of the premises as the statutory employer was liable for compensation to a workman injured on the job should independent contractor who was workman’s immediate employer have failed to comply with provisions of workmen’s compensation laws requiring coverage for his employees. In re Sines, 82 Idaho 527, 356 P.2d 226 (1960).

Legislature intended to require principal, his independent contractor and any subcontractor under the independent contractor to pay workmen’s compensation to any workman injured on the job whether employed by the principal, independent contractor or subcontractor. In re Sines, 82 Idaho 527, 356 P.2d 226 (1960).

Although the statute did not provide for the situation wherein the negligence of the statutory employer was the sole, proximate cause of the injuries suffered by the employee, there was nothing to deprive the actual employer from obtaining indemnity or reimbursement from the negligent statutory employer to the extent of the compensation for which the actual employer was liable under this act. Industrial Indem. Co. v. Columbia Basin Steel & Iron, Inc., 93 Idaho 719, 471 P.2d 574 (1970).

Notice to Employer.

The defense of the statutory employer that claimant failed to state a claim upon which relief could be granted, particularly claiming employer did not have timely notice in that notice was not given for 85 days of the accident and that the employer was not afforded the opportunity to provide claimant with reasonable medical and kindred services was substantiated by the evidence establishing resultant prejudice to employer. Findley v. Flanigan, 84 Idaho 473, 373 P.2d 551 (1962), overruled on other grounds, Christensen v. Calico Constr. & Dev. Co., 97 Idaho 327, 543 P.2d 1167 (1975).

Notice to Subcontractor.

It was no ground to deny compensation that an injured workman, or his dependents in case of his death, did not serve the notice on a subcontractor where it was served upon the employer himself. Hiebert v. Howell, 59 Idaho 591, 85 P.2d 699 (1938).

Cross References.

Coverage for injuries outside state presumed in contract of hiring,§ 72-221.

Interstate commerce,§ 72-202.

Compiler’s Notes.

The term “this law” appearing twice in the introductory paragraph refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Employment Principally Localized.

Where, at the time of the accident which occurred in Ohio, employee of Idaho based employer was staying in motel at employer’s expense, employer had not yet established a district office or any office of place of business in Ohio and employee was not transferred to status of district sales manager on employer’s records until after the accident, employee’s employment was still principally located in Idaho and compensation laws of Idaho applied. Kirkpatrick v. Transtector Sys., 114 Idaho 559, 759 P.2d 65 (1988).

Cited

Once a worker’s employment is principally located in a state, it remains localized in that state until it becomes principally localized in another. Kirkpatrick v. Transtector Sys., 114 Idaho 559, 759 P.2d 65 (1988). Cited Nelson v. Pumnea, 106 Idaho 48, 675 P.2d 27 (1983).

Decisions Under Prior Law

Injury Out of State.

The fact that an employee’s injury occurred without the state did not ipso facto defeat his right to compensation. Dameron v. Yellowstone Trail Garage, 54 Idaho 646, 34 P.2d 417 (1934).

Jurisdiction of Board.

The statute providing that where a workman was hired outside of the state of Idaho, was injured and was entitled to compensation under the law of the state where he was hired, he was entitled to enforce against his employer his rights in Idaho did not limit the industrial accident board’s jurisdiction to accidents occurring within the state, if the employment was so connected with the employer’s business within the state as to be an integral part thereof. Johnson v. Falen, 65 Idaho 542, 149 P.2d 228 (1944).

Where an employee was hired outside of the state of Idaho and was injured outside of the state, but his employment was inseparably incidental to the employer’s business of buying, shipping, and selling fruit, the situs of which was in Idaho, the industrial accident board [now industrial commission] of Idaho has jurisdiction of the employee’s claim for compensation. Johnson v. Falen, 65 Idaho 542, 149 P.2d 228 (1944).

Compiler’s Notes.

The term “this law” appearing throughout this section refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Compiler’s Notes.

The term “this law” appearing throughout this section refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

C.J.S.

§ 72-220. Locale of employment.

1. A person’s employment is principally localized in this or another state when:
   1. His employer has a place of business in this or such other state and he regularly works at or from such place of business; or
   2. He is domiciled and spends a substantial part of his working time in the service of his employer in this or such other state.
2. An employee whose duties require him to travel regularly in the service of his employer in this and one or more other states may, by written agreement with his employer, provide that his employment is principally localized in this or another such state, and, unless such other state refuses jurisdiction, such agreement shall be given effect under this law.

History.

I.C.,§ 72-220, as added by 1971, ch. 124, § 3, p. 422.

Compiler’s Notes.

The term “this law” at the end of subsection (2) refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Domicile.

For a change of domicile to occur, the fact of physical presence at a dwelling place and the intention to make it a home must concur. And when such domicile is established, it persists until another is legally acquired. Kirkpatrick v. Transtector Sys., 114 Idaho 559, 759 P.2d 65 (1988).

Employment Principally Localized.

Where, at the time of the accident which occurred in Ohio, employee of Idaho based employer was staying in motel at employer’s expense, employer had not yet established a district office or any office or place of business in Ohio and employee was not transferred to status of district sales manager on employer’s records until after the accident, employee’s employment was still principally located in Idaho and compensation laws of Idaho applied. Kirkpatrick v. Transtector Sys., 114 Idaho 559, 759 P.2d 65 (1988).

Once a worker’s employment is principally located in a state, it remains localized in that state until it becomes principally localized in another. Kirkpatrick v. Transtector Sys., 114 Idaho 559, 759 P.2d 65 (1988).

Compiler’s Notes.

The term “this act” near the middle of the section refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Compiler’s Notes.

The term “this law” near the middle of the section refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Choice of Law.

Where both plaintiffs and defendant were Idaho residents and the tort took place in Idaho, Idaho had strong interests and policies which would have been undermined by the application of the less equitable Washington laws, therefore, the court chose to apply the law of Idaho, the forum state. Runcorn v. Shearer Lumber Prods., Inc., 107 Idaho 389, 690 P.2d 324 (1984).

Amendments.

This section was amended by two 2000 acts — ch. 119, § 1 and ch. 372, § 1, both effective July 1, 2000, which do not conflict and have been compiled together.

The 2000 amendment, by ch. 119, § 1, substituted present subsection (4) for former subsection (4), which read: “On any recovery by the employee against a third party, the employer shall pay or have deducted from his subrogated portion thereof, a proportionate share of the costs and attorney’s fees incurred by the employee in obtaining such recovery”.

The 2000 amendment, by ch. 372, § 1, substituted “agreeing to pay in full the employer’s subrogated interest” for “acknowledging the third party’s obligation to pay the subrogated interest” in subdivision (4)(a).

Compiler’s Notes.

The term “this act” in subsections (6) and (7) refers to S.L. 1997, chapter 206, which is codified as§§ 72-324, 72-327, and 72-328.

The term “this law” near the beginning of subsections (1) and (6) refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

The bracketed insertions in subsections (6) and (7) were added by the compiler to provide the correct name of the referenced fund. See§ 72-323.

Effective Dates.

Section 2 of S.L. 1996, ch. 191 provided that the act should be in full force and effect on and after July 1, 1996.

Section 2 of S.L. 2000, ch. 119 provided that the act shall be in full force and effect on and after July 1, 2000.

CASE NOTES

Apportionment of Damages.

If an employee brings a suit against a third party in addition to receiving workmen’s compensation benefits, the court will apportion the employee’s damages between the employer and third party. The focus of the court in apportionment is two-fold: (1) to achieve an equitable distribution of liability for the employee’s injuries as between the employer and the third party, based on the facts of each case, and (2) to prevent the overcompensation of an employee, i.e., to prevent the employee from retaining both the workmen’s compensation benefits and the full tort recovery. Schneider v. Farmers Merchant, Inc., 106 Idaho 241, 678 P.2d 33 (1983).

Attorneys’ Fees and Costs.

This section does not limit payment of attorneys’ fees and costs to situations where there is or has been an administrative or judicial proceeding; this section applies to all circumstances where any recovery has been effectuated by the employee against a third party. A civil action is not a condition precedent to the application of subsection (4) of this section. Walker v. Hensley Trucking, 107 Idaho 572, 691 P.2d 1187 (1984).

The trial court correctly withheld injured passengers’ attorney’s fees and costs in distributing injured passengers’ share of interpleaded fund to State Insurance Fund. Lumbermens Mut. Cas. Co. v. Egbert, 125 Idaho 678, 873 P.2d 1332 (1994). The proportion of a surety’s benefit in a third party recovery, and thus the surety’s proportionate share of the costs and fees, should be measured not only by the surety’s past compensation liability which was reimbursed by the third party recovery, but also by the surety’s future compensation liability which is absolved by the third party recovery. Cameron v. Minidoka County Hwy. Dist., 125 Idaho 801, 874 P.2d 1108 (1994).

Surety was required to pay its proportionate share of the costs and attorney fees in an immediate lump sum, rather than over the same nine and one-half year period it would have paid the claimants’ compensation benefits. Cameron v. Minidoka County Hwy. Dist., 125 Idaho 801, 874 P.2d 1108 (1994).

The legislature did not intend that a worker should be able to bring a bad faith tort action against his employer’s surety in courts of general jurisdiction, but rather that a worker could receive attorney fees and sometimes punitive costs if the employer or surety acted unreasonably. Idaho State Ins. Fund v. Van Tine, 132 Idaho 902, 980 P.2d 566 (1999).

Co-Employees.

In an action against employers arising out of a mine fire, employers’ third-party complaint against unions in which employers alleged that unions were negligent in allowing unsafe conditions to exist in the mine was barred under this section, for union members, who were co-employees acting as agents for employers, were not third parties against whom a damage action could be maintained. House v. Mine Safety Appliances Co., 417 F. Supp. 939 (D. Idaho 1976).

Constitutionality.

Rational basis exists for the grant of immunity in this section, even if the statutory employer has not had to pay benefits because the direct employer has. Kolar v. Cassia County Idaho, 142 Idaho 346, 127 P.3d 962 (2005).

Control.

Control does not factor into a statutory employer analysis. Fuhriman v. State, 143 Idaho 800, 153 P.3d 480 (2007).

Construction.

There is no indication in the workmen’s compensation law of Idaho that the employer’s negligence should be attributed to his employee. Tucker v. Union Oil Co., 100 Idaho 590, 603 P.2d 156 (1979).

Given the statutory definition of employer under§ 72-102, the fact that this term and its applicable definition were imported almost word-for-word into this section, and there was no indication within the Idaho worker’s compensation act that the legislature intended to overturn years of case law, the statutory employer analysis should be used when determining the plain meaning of this section; the court finds the meaning of that section clear and unambiguous. Robison v. Bateman-Hall, Inc., 139 Idaho 207, 76 P.3d 951 (2003).

Court rejected an employee’s claim that this section of the Idaho worker’s compensation act violated the Equal Protection Clause because the employee made no attempt to clearly identify to the court the classification challenged, and instead the employee appeared to challenge the rationality of the entire statutory scheme, which was not appropriately considered an equal protection challenge. Robison v. Bateman-Hall, Inc., 139 Idaho 207, 76 P.3d 951 (2003). Under this section, applying a more limited test to owners as opposed to subcontractors is supported by the express language and general purpose of the Idaho worker’s compensation act; it makes sense to have a rule that limits a property owner’s liability under the statutory concept of “employer” under§ 72-102 while interpreting the contractor or subcontractor’s liability more broadly. Robison v. Bateman-Hall, Inc., 139 Idaho 207, 76 P.3d 951 (2003).

Course of Employment.

When the employee was employed by two employers and one employer was attempting to use the workers’ compensation law as a shield to avoid third-party liability, it was that employer’s duty to prove that the employee was working for the employer when the accident occurred and the fact that the employee was subject to the direction and control of either employer at moment’s notice was not determinative; what the employer had to prove as claimant was that the employee’s injury arose out of and in the course of his employment with the employer. Basin Land Irrigation Co. v. Hat Butte Canal Co., 114 Idaho 121, 754 P.2d 434 (1988).

Employer as Third Party.

This state’s workmen’s compensation law does not shield an employer of an independent contractor from tort liability for an injury incurred by the independent contractor’s employee. Peone v. Regulus Stud Mills, Inc., 858 F.2d 550 (9th Cir. 1988).

Since status as a statutory employer was a defense to a common law negligence action, deciding whether a defendant was a third party or statutory employer necessarily attended the district court’s task in ruling on matters in such suits. Kolar v. Cassia County Idaho, 142 Idaho 346, 127 P.3d 962 (2005).

Exclusive Remedy.

In a personal injury and wrongful death suit by family members of employees of a contractor hired by the state to work on a highway, because the state had expressly hired the services of the contractor, and was liable to pay the employees workers compensation benefits if their direct employer did not, state was a statutory employer and was entitled to immunity under the exclusive remedy rule. Fuhriman v. State, 143 Idaho 800, 153 P.3d 480 (2007).

Worker was exempt from liability from the contractor’s employee under§ 72-209(3) because the worker’s employer was a statutory employer immune from third party liability; this immunity extended to its workers to fulfill the purpose of the Idaho worker’s compensation act as to hold otherwise would undermine the entire framework of liability and immunity provided by the worker’s compensation law. Blake v. Starr, 146 Idaho 847, 203 P.3d 1246 (2009).

Under the exclusive remedy rule, an injured employee is limited to recovery in worker’s compensation and cannot sue in tort. Ewing v. DOT, 147 Idaho 305, 208 P.3d 287 (2009).

Exemption Not Automatic.

Although family members of an employee were entitled to (and did receive) worker’s compensation benefits for the employee’s death, the district court erred by finding that the members’ wrongful death action was barred by the exclusivity rule under the worker’s compensation law. The court failed to consider whether the employer consciously disregarded information suggesting a significant risk to its employees working at or under tables, and, on remand, was to apply the proper standard for proving an act of unprovoked physical aggression. Gomez v. Crookham Co., — Idaho —, 457 P.3d 901 (2020). Exemption Not Automatic.

The status of a statutory employer does not exempt all such employers from tort liability as third parties under this section, since the exclusive liability of an employer under§ 72-209(1), and the exclusive remedies of an employee under§ 72-211, are both specifically made “subject to the provisions of section 72-223.” Runcorn v. Shearer Lumber Prods., Inc., 107 Idaho 389, 690 P.2d 324 (1984).

General Contractor.

A category one statutory employer need not be a general contractor. Fuhriman v. State, 143 Idaho 800, 153 P.3d 480 (2007).

An employer who makes use of a contractor’s or subcontractor’s employees qualifies as a category one statutory employer and is immune from suits in tort in case of injury to any of those employees. Ewing v. DOT, 147 Idaho 305, 208 P.3d 287 (2009).

Immunity.

Because a property owner was not in the business of construction or roof installation and did not employ individuals who were trained in these areas, nor did it own materials or equipment necessary to engage in these areas, the owner was not a statutory employer under§ 72-102 and, thus, was not exempt from liability under this section in connection with a roof installation employee’s third party negligence action; thus, the trial court erred in granting the owner summary judgment under Idaho R. Civ. P. 56(c). Robison v. Bateman-Hall, Inc., 139 Idaho 207, 76 P.3d 951 (2003).

Trial court correctly determined that a general contractor was immune from third-party tort liability pursuant to this section as a general contractor, given the definitions of employer under§§ 72-216 and 72-102. Robison v. Bateman-Hall, Inc., 139 Idaho 207, 76 P.3d 951 (2003).

The grant of immunity under this section comes only in connection with absolute liability on the part of the primary contractor or business operator to provide benefits under the worker’s compensation act if an employee’s direct employer fails to do so. The fact that the primary employer may keep this grant of immunity even though the direct employer has paid benefits and fulfilled its obligations under the law does not render the provision unconstitutional. Venters v. Sorrento Del., Inc., 141 Idaho 245, 108 P.3d 392 (2005).

Trial court erred in finding that a farm, as a mere landowner, was a decedent’s statutory employer, because nothing in the record indicated that the farm was engaged in the business of hauling wastewater for pecuniary gain, which was the work being done by the decedent. The farm was not a statutory employer and was not entitled to the immunity provided by this section. Venters v. Sorrento Del., Inc., 141 Idaho 245, 108 P.3d 392 (2005).

Trial court properly granted summary judgment to a factory in a wrongful death action against it by a decedent’s survivors because the factory qualified as the decedent’s statutory employer, pursuant to§§ 72-102 and 72-216(1), due to its contractual relationship with the decedent’s employer for wastewater hauling services. The factory was immune from third-party tort liability under this section. Venters v. Sorrento Del., Inc., 141 Idaho 245, 108 P.3d 392 (2005).

Because the school district was not a “business” in the ordinary meaning of the word, it could not be the teacher’s category two employer and it was not entitled to immunity from tort suit. Cordova v. Bonneville County Joint Sch. Dist. No. 93, 144 Idaho 637, 167 P.3d 774 (2007). Although statutory employer immunity under this section could apply to the United States, the statutory employer immunity provided for did not apply to the United States in a negligence and subrogation action filed by a worker’s compensation insurer because the complaint alleged that particular Department of Defense entities were responsible for the injuries to a subcontractor’s employee, but the record showed that it was the Army Corps of Engineers that contracted for the work at the base and indirectly employed the injured worker. Liberty Northwest Ins. Corp. v. United States, 2011 U.S. Dist. LEXIS 138291 (D. Idaho Nov. 30, 2011).

In General.

An injured employee may receive workmen’s compensation benefits and, thereafter, bring a negligence action against a third party tort-feasor who was a nonemployer. Tucker v. Union Oil Co., 100 Idaho 590, 603 P.2d 156 (1979).

Where it was undisputed that the respondents contracted the services of the worker’s direct employer, they were, therefore, an employer within the meaning of that term. Kolar v. Cassia County Idaho, 142 Idaho 346, 127 P.3d 962 (2005).

Because there was no evidence of a contract between the firefighter and the county, there could be no statutory employer relationship; therefore, workers’ compensation did not preclude the firefighter’s third-party suit against the county. Ruffing v. Ada County Paramedics, 145 Idaho 943, 188 P.3d 885 (2008).

Jurisdiction.

Where injured worker appellant and spouse appealed the decision of the trial court dismissing their claims against the Idaho department of transportation’s worker’s compensation surety (SIF) for lack of subject matter jurisdiction and dismissing their waiver of subrogation claim against SIF pursuant to subsection (3) of this section because of SIF’s pending action against the appellant’s attorney, the supreme court held that appellants presented claims arising under§ 72-804 and that under§ 72-707 the industrial commission had exclusive jurisdiction of all questions arising under the workers’ compensation law. Van Tine v. Idaho State Ins. Fund, 126 Idaho 688, 889 P.2d 717 (1994).

Injured worker’s claim that employer’s workers’ compensation surety had waived its subrogation rights arose under subsection (3) of this section, and, as such, was a question within the exclusive jurisdiction of the industrial commission under§ 72-707. Van Tine v. Idaho State Ins. Fund, 126 Idaho 688, 889 P.2d 717 (1994).

Since question of whether state insurance fund (SIF) was entitled to subrogation pursuant to subsection (3) of this section is a question arising under the worker’s compensation law which is within the exclusive jurisdiction of the industrial commission, district court had no jurisdiction. Idaho State Ins. Fund ex rel. Forney v. Turner, 130 Idaho 190, 938 P.2d 1228 (1997).

Limitation on Employer’s Liability.

Parent Corporation.

A third party who has paid damages for an injury arising out of the employment of the injured person may hold the employer liable if the injury was concurrently caused by the breach of any duty or obligation owed by the employer to such other person, but the employer’s liability shall be limited to the amount of compensation for which the employer is liable under workmen’s compensation. Runcorn v. Shearer Lumber Prods., Inc., 107 Idaho 389, 690 P.2d 324 (1984). Parent Corporation.

Where the stock interest held by a corporation in the direct employer of an injured employee, when viewed in light of the record and the appropriate law, did not require the setting aside or the piercing of the corporate veil, the corporation did not meet Idaho’s statutory workmen’s compensation definition of “employer”; hence, the lower court holding that the corporation was not a “statutory employer” such as to immunize it from a negligence action as a “third party” was correct. Tucker v. Union Oil Co., 100 Idaho 590, 603 P.2d 156 (1979).

Present Value of Future Liability.

Where the commission was instructed to determine, or have the parties stipulate, how much the present value of the claimants’ future compensation should have been discounted in consideration of the contingency that the claimants might die or marry at some point during the remainder of the nine and one-half year payment period, the total amount of the benefit to be paid out over about nine and one-half years should not only have been discounted to its present value, it also should have been discounted based on the contingent nature of those claimants’ rights to receive those benefits. Cameron v. Minidoka County Hwy. Dist., 125 Idaho 801, 874 P.2d 1108 (1994).

Reduction in Claimant’s Award.

It was not erroneous for the trial court to reduce claimant’s award by the amount of the workmen’s compensation benefits received by him where a reimbursement did not inure to the benefit of a negligent employer since the employer and third party arrived at a mutual agreement of their respective liability by virtue of their release agreement and this agreement relieved the court from litigating the issue of the employer’s negligence, without prejudicing claimant’s recovery and where to allow claimant to retain both the workmen’s compensation benefits and the full tort recovery, would be overcompensatory. Schneider v. Farmers Merchant, Inc., 106 Idaho 241, 678 P.2d 33 (1983).

Reduction of Verdict.

Any verdict in an action by an employee against a third party must be reduced by the amount of the worker’s compensation benefits paid to the employee; however, a trial court is not permitted to reduce a verdict to reflect future due compensation benefits. Barnett v. Eagle Helicopters, Inc., 123 Idaho 361, 848 P.2d 419 (1993).

Scope of Employment.

Where the employee was in an automobile accident with the president of one of his employers, and that employer was attempting to use the workers’ compensation law as a shield to avoid third-party tort liability, the burden was on the employer to prove by a preponderance of the evidence that the employee was operating in the scope of his employment when the accident occurred; if the employer failed to meet its burden, then the workers’ compensation laws would not apply and the employee would be free to pursue a third-party civil action against the employer and its president in district court. Basin Land Irrigation Co. v. Hat Butte Canal Co., 114 Idaho 121, 754 P.2d 434 (1988).

Single Cause of Action.

There is but one cause of action under this section, and one right to subrogation, and if the action is brought in the employee’s name, the employer and its surety are bound by estoppel to the results of that trial conducted by the employee. Runcorn v. Shearer Lumber Prods., Inc., 107 Idaho 389, 690 P.2d 324 (1984).

When claimant brought a separate action against a third-party for injuries, the subrogation rights of employer who voluntarily paid worker’s compensation benefits was derivative of claimant’s recovery, and employer was not required to file separate tort claim against third-party to preserve their right to subrogation. Struhs v. Protection Technologies, Inc., 133 Idaho 715, 992 P.2d 164 (1999).

Statutory Employer.

An employer who makes use of a contractor’s or subcontractor’s employees qualifies as a category one statutory employer and is immune from suits in tort Krinitt v. Idaho Dep’t of Fish & Game, 162 Idaho 425, 398 P.3d 158 (2017).

Subcontractors.

Employer food service supplier was immune to liability for injuries received by an employee of its subcontractor, because the subcontractor had properly provided workers’ compensation coverage for its employees. Gonzalez v. Lamb Weston, Inc., 142 Idaho 120, 124 P.3d 996 (2005).

Where the Idaho department of transportation (ITD) awarded a contract for road work, an employee of a subcontractor, injured while taking a break, was a statutory employee of the ITD for purposes of the Idaho worker’s compensation act: thus, the employee’s negligence suit against the ITD was barred by this section. Ewing v. DOT, 147 Idaho 305, 208 P.3d 287 (2009).

Subrogation.

Where a full hearing of the “loaned employee” issue would occur in pending tort action between injured employee plaintiff and defendant employer of employees who injured plaintiff, the interests of defendant were fully protected from any further suits by the plaintiff’s employer or its surety through the subrogation provisions of this section and it was proper for the district court under Idaho R. Civ. P. 57 to dismiss a declaratory judgment action in order to avoid a multiplicity of suits. Scott v. Agricultural Prods. Corp., 102 Idaho 147, 627 P.2d 326 (1981).

Where the employer is not negligent, the employer is entitled to subrogate to the employee’s recovery against a third party, and thus obtain a reimbursement of the workmen’s compensation benefits he paid; conversely, in those situations where the employer is negligent, the employer is denied this reimbursement and the third party is entitled to a credit against his judgment in the amount of the workmen’s compensation benefits the employer paid. Thus, the employee’s award is reduced by the amount of workmen’s compensation he received; in either event, the employee does not retain both the workmen’s compensation benefits and the full tort recovery. Schneider v. Farmers Merchant, Inc., 106 Idaho 241, 678 P.2d 33 (1983).

Where third party paid consideration for release of any claim employer may have had based on the accident, employer’s subrogation rights were extinguished and third party became subrogated to employer’s right of reimbursement. Thus, in the event employer’s negligence was litigated, and employer was found not negligent, third party held employer’s right to be reimbursed for the workmen’s compensation benefits paid; conversely, in the event employer was found negligent, third party retained its right to receive a credit towards his judgment, in the amount of the workmen’s compensation benefits paid. Therefore, in the posture of such case, the determination of the employer’s negligence was unnecessary. Schneider v. Farmers Merchant, Inc., 106 Idaho 241, 678 P.2d 33 (1983). The insurer of an employer who is jointly negligent with a third party is not allowed the statutory subrogation rights or reimbursement for workmen’s compensation benefits paid to the injured employee allowed by subsection (3) of this section; the third party may defend on the basis that the employer was negligent whether or not the employer is a party to the action. Runcorn v. Shearer Lumber Prods., Inc., 107 Idaho 389, 690 P.2d 324 (1984).

Where the record was devoid of any findings or testimony as to the medical expense incurred due to medical malpractice, the industrial commission’s order of an offset of the claimant’s total award to the workers’ compensation surety pursuant to this section for payments made for the claimant’s medical expenses due to the medical malpractice was reversed and remanded for further proceedings to determine the surety’s subrogation rights, with recovery from the malpractice settlement in excess of the surety’s expenditures in connection therewith to remain in the claimant. Presnell v. Kelly, 113 Idaho 1, 740 P.2d 43 (1987).

Insurance company had a subrogated interest in party’s settlement for injuries sustained in a work-related accident because the unilateral actions of employee and third-party could not restrict the subrogation rights of employer who voluntarily paid worker’s compensation benefits. Struhs v. Protection Technologies, Inc., 133 Idaho 715, 992 P.2d 164 (1999).

Where insurance contract reduces amount to be paid to injured insured by payments awarded to the insured under the workers’ compensation law, that reduction should only be by the net amount of worker’s compensation benefits paid or payable to the insured: monies repaid to the state insurance fund through subrogation under this section should not be deducted from an award under the insurance contract. Cherry v. Coregis Ins. Co., 146 Idaho 882, 204 P.3d 522 (2009).

Entire proceeds of an injured worker’s third party settlement were subject to subrogation, because there is no language in this section indicating that a third-party recovery is to be segregated out into its individual elements or that certain portions, such as pain and suffering, are to be protected from an employer’s right of subrogation. Izaguirre v. R&L Carriers Shared Servs., LLC, 155 Idaho 229, 308 P.3d 929 (2013).

Pursuant to the apportionment rule, in a workers’ compensation case, the industrial commission erred by ruling that the employer’s negligence with regards to the employee’s accident, if proved, was not a bar to the employer being reimbursed for worker’s compensation payments it paid to the employee, and erred in abrogating the employer negligence rule that the negligent employer was barred from seeking subrogation of an employee’s recovery against a third-party. Maravilla v. J.R. Simplot Co., 161 Idaho 455, 387 P.3d 123 (2016).

Temporary Employee.

Lumber company which hired employee from a temporary employment agency, under an agreement that referred to the employee as a “general employee” of employment agency and a “special employee” of the lumber company and which specified that employee was under the exclusive supervision and control of lumber company while on the job site, was not a third party who was liable for employee’s injuries under this section. Lines v. Idaho Forest Indus., 125 Idaho 462, 872 P.2d 725 (1994).

Cited House v. Mine Safety Appliances Co., 573 F.2d 609 (9th Cir. 1978); Pocatello Indus. Park Co. v. Steel W., Inc., 101 Idaho 783, 621 P.2d 399 (1980); Wilder v. Redd, 111 Idaho 141, 721 P.2d 1240 (1986); Barringer v. State, 111 Idaho 794, 727 P.2d 1222 (1986); Rhodes v. Sunshine Mining Co., 113 Idaho 162, 742 P.2d 417 (1987); Sherrard v. City of Rexburg, 113 Idaho 815, 748 P.2d 399 (1988); State Ins. Fund v. Jarolimek, 139 Idaho 137, 75 P.3d 191 (2003). Decisions Under Prior Law

Borrowed Servant.

Third party, being a loaned servant of a trucking company for the purpose of aiding in the unloading of boilers he was transporting, at the time of the accident and injury to plaintiff occurred while third party was driving truck out from under boiler as it was being elevated under direction of plaintiff, plaintiff’s exclusive remedy was compensation under the workmen’s compensation law. Cloughley v. Orange Transp. Co., 80 Idaho 226, 327 P.2d 369 (1958).

A trucker delivering logs to claimant’s employer, who normally had the responsibility of unloading the logs with the assistance of a pettibone machine, of which claimant was an operator, who at claimant’s direction undertook to unload the logs without the assistance of the pettibone machine because it was disabled, was, in such operation a loaned employee of claimant’s employer and, therefore, a fellow servant of claimant, and not a third party liable for injury resulting to claimant from a log rolling from the truck and striking him. Gropp v. Pluid, 91 Idaho 722, 429 P.2d 852 (1967).

Co-employees.

An employee acting in the scope of employment, who injured a fellow employee could not be sued for damages, since the exemption extended to the employer from suits for damages was also extended to an employee acting as agent for his employer. White v. Ponozzo, 77 Idaho 276, 291 P.2d 843 (1955).

A co-employee acting in the scope of his employment who injured a fellow employee was not a “third party” within the purview of the statute and could not be sued for damages, since the exemption extended to the employer was also extended to an employee acting as agent for his employer. Nichols v. Godfrey, 90 Idaho 345, 411 P.2d 763 (1966).

Construction.

Where a third party injured an employee, he could not urge that he was not liable because the employee was a minor member of the employer’s family, dwelling in his house, and that the employer had not, prior to the accident, filed with the industrial accident board [now industrial commission] an election in writing that the provisions of the workmen’s compensation law should apply to the injured employee, where it was shown that compensation had been paid under an agreement between employer and his insurance carrier and the employee and approved by the industrial accident board [now industrial commission]. Department of Finance v. Union Pac. R.R., 61 Idaho 484, 104 P.2d 1110 (1940).

The provision of the workmen’s compensation act reciting its purpose, and the provision permitting an injured employee at his option to claim compensation or to proceed against a third person, and subrogating any employer who had paid compensation to the rights of the employee, were in pari materia, and must have been considered and construed together. Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054 (1940).

The workmen’s compensation act was remedial and special law providing compensation for injured employees without referring to negligence on the part of either employer or employee. Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054 (1940).

A workman employed by a subcontractor digging sewer trenches for a general contractor building sewers for a city was an employee of the general contractor and not of the city, and the general contractor was answerable rather than the city for the death of the workman in the course of his employment through the negligence of the subcontractor, and the heirs could not maintain an action other than that provided by the workmen’s compensation law against the general contractor. Gifford v. Nottingham, 68 Idaho 330, 193 P.2d 831 (1948).

Because liability of employer and surety for compensation was separate and distinct from liability of third party tortfeasor, employer’s right of subrogation would not have existed except for the statute. Lake v. State, 71 Idaho 107, 227 P.2d 361 (1951).

Where cement wall erected by contractor was not attached to its footing, was not braced, and was new and green, an employee of contractor constructing forms near wall who was injured when wall collapsed was not entitled to recover damages from another contractor whose employee at the time of the accident was engaged in backfilling against the wall with a bulldozer. Benson v. Brady, 73 Idaho 553, 255 P.2d 710 (1953).

The remedy of compensation was exclusive in all cases of injuries sustained by employees except as to right of action for damages against third parties. White v. Ponozzo, 77 Idaho 276, 291 P.2d 843 (1955).

In suit to recover for injuries when employee of construction company hired by the state for the construction of a stretch of road which was to be kept open to the traveling public, was run down in his duties as checker by defendant driver who was driving under the influence of intoxicants, it was held at the joint negligence of the contractor and automobile driver and they were liable for the injuries, the highway contractor being negligent in not erecting warning signals at site of the work being done. Hoffman v. Barker, 79 Idaho 349, 317 P.2d 335 (1957).

Former section regarding liability of third parties permitted an employee or his heirs to receive workmen’s compensation benefits and thereafter bring a cause of action against the third-party tortfeasor. Hall v. Young’s Dairy Prods. Co., 98 Idaho 562, 569 P.2d 907 (1977).

Division of Recovery.

Effect of Election.

Where recovery by dependents against a third person for death of an employee was for a greater sum than had been paid out as workmen’s compensation by the employer and insurance carrier, the court should have directed payment to employer and insurance carrier of amount paid out by them to the dependents, and when the parties could not agree upon the amount thus paid out, an application should have been made supported by a certified copy of the policy of insurance, the summary of the award by the industrial accident board [now industrial commission], and the compensation agreement. Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054 (1940). Effect of Election.

Where dependents of deceased employee claimed and accepted compensation under statute, all rights and remedies against third person causing injury were barred insofar as such dependents were concerned. Workmen’s Comp. Exch. v. Chicago, M., St. P. & Pac. R.R., 45 F.2d 885 (D. Idaho 1930). But see, Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054 (1940) and O’Connell v. Ivankovich, 62 Idaho 328, 111 P.2d 888 (1941).

The acceptance of workmen’s compensation for the death of an employee did not preclude his children from maintaining an action for damages against a third party whose negligence allegedly caused the death. Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054 (1940). But see, Workmen’s Comp. Exch. v. Chicago, M., St. P. & Pac. R.R., 45 F.2d 885 (D. Idaho 1930).

Employee of county was entitled to bring third party action against construction company engaged in building new bridge for damages sustained as result of injuries caused by negligent operation of dragline by employee of construction company while removing debris of old bridge torn down by county. Brown v. Arrington Constr. Co., 74 Idaho 338, 262 P.2d 789 (1953).

An employee who claimed compensation benefits before suing employer for damages did not make an election, since compensation was the exclusive remedy. White v. Ponozzo, 77 Idaho 276, 291 P.2d 843 (1955).

Extent of Third Party’s Liability.

The liability or amount of liability of the tort-feasor was not dependent upon the amount of compensation awarded or the fact that compensation had been awarded the injured employee, as was true in some jurisdictions, and in which case the tort-feasor would have been vitally interested; neither recovery nor the amount of damages recoverable from the tort-feasor was controlled or fixed in any way by the amount of the award made by the board, but was based upon the damages sustained by the injured employee by reason of the negligence of the tort-feasor. Department of Finance v. Union Pac. R.R., 61 Idaho 484, 104 P.2d 1110 (1940).

Federal Government Not Employer.

The United States was not an “employer” within the meaning of the workmen’s compensation act so as to bar an action under the wrongful death statute where a workman of the general contractors for a flood control project for the United States fell from a scaffold, and exemption of an “employer” from common law or statutory action for negligence did not apply. Kirk v. United States, 232 F.2d 763 (9th Cir. 1956).

Instructions.

Joint Liability.

In suit for damages by employee of one contractor against another contractor based on collapse of wall while back-filling was being done by defendant’s employee with a bulldozer, an instruction on unavoidable accident was proper. Benson v. Brady, 73 Idaho 553, 255 P.2d 710 (1953). Joint Liability.

Although the statute did not provide for the situation wherein the negligence of the statutory employer was the sole, proximate cause of the injuries suffered by the employee, there was nothing to deprive the actual employer from obtaining indemnity or reimbursement from the negligent statutory employer to the extent of the compensation for which the actual employer was liable under this act. Industrial Indem. Co. v. Columbia Basin Steel & Iron, Inc., 93 Idaho 719, 471 P.2d 574 (1970).

Malpractice by Employer’s Physician.

Injured employee could not recover from employer’s physician for injury resulting from negligence of physician. Roman v. Smith, 42 F.2d 931 (D. Idaho 1930). (Contra, Hancock v. Halliday, 65 Idaho 645, 150 P.2d 137 (1943)).

Where, after injury, employee was further injured by doctor employed by employer’s compensation insurance carrier while undergoing examination for carrier’s benefit, he had no right of action against the insurance carrier unless such injury did not arise out of and in the course of employment and was not compensable under Idaho workmen’s compensation act, or injury was sustained under circumstances as to create liability in one other than his employer. Schulz v. Standard Accident Ins. Co., 125 F. Supp. 411 (E.D. Wash. 1954).

Where physician hired by employer to treat injured employee was guilty of alleged malpractice resulting in amputation of employee’s leg, employee could maintain action for damages against physician regardless of compensation received by employee from his employer. Roman v. Smith, 42 F.2d 931 (D. Idaho 1930). (Contra, Hancock v. Halliday, 65 Idaho 645, 150 P.2d 137 (1943)).

Right to Elect.

Where injury was caused by third person, dependents of deceased employee might claim compensation under the statute or proceed at law to recover damages against such third person. Workmen’s Comp. Exch. v. Chicago, M., St. P. & Pac. R.R., 45 F.2d 885 (D. Idaho 1930).

Neither employer nor his workmen’s compensation insurance carrier was “some other person than the employer” within the meaning of the Idaho workmen’s compensation act which allowed the option of bringing of an action for damages against person other than the employer. Schulz v. Standard Accident Ins. Co., 125 F. Supp. 411 (E.D. Wash. 1954).

Actions of an employee, his heirs or personal representatives against a third person to recover damages for personal injuries or death sustained by reason of actionable negligence of such party were not abolished by this statute, the provisions of the statute being expressly confined to those occupying the relationship of employee and employer. Gifford v. Nottingham, 68 Idaho 330, 193 P.2d 831 (1948); Clearwater Timber Protective Ass’n v. District Court, 84 Idaho 129, 369 P.2d 571 (1962).

Subrogation.

Employer’s failure to intervene in employee’s action against third party tort-feasor, prospective subrogee, indicated action to be with consent of employer so that decision was without prejudice to employer. Hence jurisdiction of industrial accident board [now industrial commission] over original claim was not divested nor was employee’s claim barred by the action against third party. Lake v. State, 71 Idaho 107, 227 P.2d 361 (1951). An employer or his surety cannot recover against a third party tortfeasor for compensation paid to an employee for injuries resulting from concurring negligence of the employer and such third party. Liberty Mut. Ins. Co. v. Adams, 91 Idaho 151, 417 P.2d 417 (1966).

It was not the intent of the legislature in former law providing for third party liability to allow an injured workman a double recovery and where a third party was liable to pay for the damages sustained by claimant who effected a settlement before a compensation award was made, the employer and surety were entitled to be subrogated to the third party settlement obtained by claimant and should have been allowed a credit against their obligation to claimant in the amount of the settlement. Shields v. Wyeth Laboratories, Inc., 95 Idaho 572, 513 P.2d 404 (1973).

In action against elevator company by employer and employer’s workmen’s compensation insurer seeking damages by subrogation for workmen’s compensation benefits paid to employee who received injuries when he fell down an elevator shaft after elevator car’s floor gave way, employer and its surety were barred from recovering damages by employer’s contributory negligence in failing to inspect and maintain the elevator. McDrummond v. Montgomery Elevator Co., 97 Idaho 679, 551 P.2d 966 (1976).

Under former section regarding liability of third parties, the employer and its carrier were entitled to subrogation against the proceeds of a wrongful death recovery from a third-party tortfeasor except to the extent that such recovery exceeded their expenses in pursuing the action and the workmen’s compensation benefits they had paid or were liable to pay. Hall v. Young’s Dairy Prods. Co., 98 Idaho 562, 569 P.2d 907 (1977).

Where an employer’s carrier paid workmen’s compensation benefits of over $21,000 to the surviving spouse and children of an employee killed in the course of his employment, the employer and carrier were subrogated to the survivor’s rights in a wrongful death action against a third-party tortfeasor and were entitled to the $10,000 recovery less an award of $2,000 to cover the survivors’ attorney’s fees. Hall v. Young’s Dairy Prods. Co., 98 Idaho 562, 569 P.2d 907 (1977).

— Parties.

Dependents of deceased employee who have elected to claim and have accepted compensation under statute could not be joined with employer and insurer in action against third party causing injury. Workmen’s Comp. Exch. v. Chicago, M., St. P. & Pac. R.R., 45 F.2d 885 (D. Idaho 1930). But see, Contra: Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054 (1940) and O’Connell v. Ivankovich, 62 Idaho 328, 111 P.2d 888 (1941).

Employer and insurer paying compensation claim can join in action against third person causing injury. Workmen’s Comp. Exch. v. Chicago, M., St. P. & Pac. R.R., 45 F.2d 885 (D. Idaho 1930).

Tort Liability.

In an action against a third party for injury to, or death of, an employee, where an award had been made under the workmen’s compensation act, and the employer and insurance carrier appeared as plaintiffs, the court may have instructed that the employer and insurance carrier appear as and were proper parties plaintiff because of the fact that they had been subrogated to the rights of the employee or his beneficiaries, because of their liability to pay benefits under the act, and that the jury would have nothing to do with the question of what amount such plaintiffs may have been liable for under the act, and the liability under the act was not dependent on negligence as in the action against third party. Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054 (1940). Tort Liability.

In a diversity action against phosphate producer by employee of subcontractor to recover for personal injuries sustained in the construction of a furnace where there was no showing that the owner of the plant normally did that kind of construction, the assembly of the furnace was the construction business of the subcontractor, and the phosphate producer was not immune from tort liability since he was not the virtual proprietor or operator of such construction business. Ray v. Monsanto Co., 420 F.2d 915 (9th Cir. 1970).

Idaho Law Review.

Idaho Law Review. — Choice of Law in Idaho: A Survey and Critique of Idaho Cases, Andrew S. Jorgensen. 49 Idaho L. Rev. 547 (2013).

Am. Jur. 2d.

C.J.S.

ALR.

Right to maintain malpractice suit against injured employee’s attending physician notwithstanding receipt of workmen’s compensation award. 28 A.L.R.3d 1066.

Liability for Injury to Garbage or Sanitation Worker Exclusive of Workers’ Compensation Benefit. 14 A.L.R.7th 2.

Compiler’s Notes.

This section, which comprised I.C.,§ 72-224 as added by 1971, ch. 124, § 3, p. 422, was repealed by S.L. 1978, ch. 264, § 22.

Compiler’s Notes.

The term “this law” appearing throughout this section refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Decisions Under Prior Law

Construction.

Provision that a minor working at an age legally permitted be deemed sui juris for the purpose of this act meant that a minor legally permitted to work could pursue his remedies under the act without a guardian and without let or hindrance of any other person, except in a case of a lump settlement. Lockard v. St. Maries Lumber Co., 76 Idaho 506, 285 P.2d 473 (1955).

Validity.

Employment of minor though in violation of the child labor law was not void, but created the relationship of employer and employee under the workmen’s compensation act. Lockard v. St. Maries Lumber Co., 76 Idaho 506, 285 P.2d 473 (1955).

Cross References.

Industrial commission,§ 72-601.

Alcohol Withdrawal Seizure.

There was substantial, competent evidence to support the industrial commission’s finding that an employee was injured as a result of an alcohol withdrawal seizure and that the workplace did not contribute to his injury. Evans v. Hara’s, Inc., 123 Idaho 473, 849 P.2d 934 (1993).

Burden of Proof.

The burden of disproving wilful intent to injure himself or herself is not upon the claimant, but rather is in the nature of an affirmative defense, which, if raised by the employer, must be proved by a preponderance of the evidence by the employer. Seamans v. Maaco Auto Painting & Bodyworks, 128 Idaho 747, 918 P.2d 1192 (1996).

Idiopathic Fall.

An injury resulting from an idiopathic fall at the workplace does not arise out of employment and is not compensable under our worker’s compensation system, without evidence of some contribution from the workplace. Evans v. Hara’s, Inc., 123 Idaho 473, 849 P.2d 934 (1993).

Intoxication.

A blood alcohol level of .117 percent was not sufficiently high to overcome the presumption contained in this section that employee’s death was not occasioned by his intoxication. Hatley v. Lewiston Grain Growers, Inc., 97 Idaho 719, 552 P.2d 482 (1976). At hearing before the commission on claimant’s application for full income benefits as the surviving widow of employee who was killed when his semi-truck overturned, the expert testimony of a toxicologist regarding the effect of employee’s .117 percent blood alcohol level on his ability to operate a motor vehicle was not necessarily binding on the commission which could have concluded that all of the evidence of employee’s intoxication did not overcome statutory presumption that employee’s death was not caused by his intoxication. Hatley v. Lewiston Grain Growers, Inc., 97 Idaho 719, 552 P.2d 482 (1976).

In hearings on claimant’s application for full income benefits as surviving widow of employee who was killed when his semi-truck overturned, the commission did not err in its conclusion that there was a lack of substantial evidence in the record that employee’s death was caused by intoxication, even though test results revealed that decedent had .117 percent blood alcohol level, where truck stop proprietors testified that employee’s behavior was normal and that he did not appear to be intoxicated. Hatley v. Lewiston Grain Growers, Inc., 97 Idaho 719, 552 P.2d 482 (1976).

In view of the presumption contained in this section that an employee’s death was not occasioned by his intoxication, a finding by the commission that employee was intoxicated did not lead to an inevitable conclusion that the intoxication caused the fatal accident. Hatley v. Lewiston Grain Growers, Inc., 97 Idaho 719, 552 P.2d 482 (1976).

Out of and In the Course of Employment.

Where widow of deputy sheriff shot when he resisted arrest did not present sufficient evidence to indicate that husband’s death arose in the course of his employment the commission was correct in not applying this section. Kessler ex rel. Kessler v. Payette County, 129 Idaho 855, 934 P.2d 28 (1997).

Even without the presumption in this section that a fatal automobile accident arose out of the decedent’s employment, the industrial commission’s factual findings independently established that the accident did arise out of the decedent’s employment. Hamilton v. Alpha Servs., LLC, 158 Idaho 683, 351 P.3d 611 (2015).

Rebuttable Presumption.

Once an employer has come forward with substantial affirmative evidence to indicate that an accident did not arise out of the employment, the burden shifts back to an employee to persuade the industrial commission that it did indeed arise out of the employment. Evans v. Hara’s, Inc., 123 Idaho 473, 849 P.2d 934 (1993).

While negative evidence alone will not defeat the statutory presumption contained in this section, this evidence may still be considered along with substantial affirmative evidence in evaluating whether substantial evidence has been presented to rebut the statutory presumption. Evans v. Hara’s, Inc., 123 Idaho 473, 849 P.2d 934 (1993).

A letter from a cardiovascular surgeon, that employee’s stroke had no cause or relationship with his employment, did not constitute substantial evidence contrary to the presumption that the employee’s injury arose out of his employment; the industrial commission noted that the foundation of the surgeon’s opinion was unknown. Politte v. DOT, 126 Idaho 270, 882 P.2d 437 (1994).

Surgeon’s letter offered as medical evidence was not sufficiently substantial to overcome the presumption contained in this section that employee’s injury arose out of his employment. Politte v. DOT, 126 Idaho 270, 882 P.2d 437 (1994). The testimony of an employee’s supervisors that employee’s stroke had no causal connection to his work was not sufficient to prevent the application of the presumption contained in this section because the evidence that may be considered for this purpose must be medical evidence; the causal relationship of an injury to the claimant’s employment must be supported by at least some medical proof. Politte v. DOT, 126 Idaho 270, 882 P.2d 437 (1994).

Compiler’s Notes.

The term “this law” near the end of subsection (2) refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Cross References.

Department of health and welfare,§ 56-1001 et seq.

Cross References.

Department of insurance,§ 41-201 et seq.

Effect of failure to procure security,§ 72-319.

Industrial commission,§ 72-501 et seq.

Insurance companies generally, title 41, Idaho Code.

Penalty for failure to procure security,§ 72-319.

Posting of notice of security,§ 72-312.

State insurance fund,§ 72-901 et seq.

State treasurer,§ 67-1201 et seq.

Surety insurance contracts,§ 41-2603 et seq.

Amendments.

The 2011 amendment, by ch. 198, throughout the section, substituted “worker’s” for “workmen’s,” or similar language; in subsection (1), substituted “insurer” for “surety” and inserted “as defined in section 41-103, Idaho Code”; in the last sentence in subsection (2), deleted “and regulations” following “rules”; and, in the last paragraph, substituted “insurer” for “surety,” or similar language throughout, and substituted “this law” for “this act” in the second sentence. The 2014 amendment, by ch. 96, changed the designation scheme in the section, rewrote present paragraphs (1)(b) and subsection (2), added subsections (3) and (4), and designated the last paragraph as subsection (5).

The 2016 amendment, by ch. 282, in subsection (2), deleted “of the United States” following “security instruments” in the third sentence and added the fourth through seventh sentences.

Compiler’s Notes.

The term “this law” appearing throughout this section refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

The name of the commissioner of insurance has been changed to the director of the department of insurance by the code commission on the authority of S. L. 1974, ch. 286, § 1 and S. L. 1974, ch. 11, § 3 (§ 41-203).

For more information on the United States securities and exchange commission, referred to in subsection (2), see https://www.sec.gov/ .

For more information on the nationally recognized statistical rating organizations, referred to in subsection (2), see https://www.sec.gov/ocr/ratingagency.html .

The abbreviation enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 2 of S.L. 2016, ch. 282 declared an emergency. Approved March 30, 2016.

Burden of Proof.

Fact that employer failed to acquire workers’ compensation insurance did not remove the plaintiff worker’s burden to prove that she was entitled to benefits. Stolle v. Bennett, 144 Idaho 44, 156 P.3d 545 (2007).

Construction.

Giving the words of this section their plain, obvious, and rational meanings, the legislature intended that every employer, whether public or private, may either purchase worker’s compensation insurance or self-insure. City of Boise v. Industrial Comm’n, 129 Idaho 906, 935 P.2d 169 (1997).

Subsection (2) [now (1)(b)] can be complied with without violating the provisions of§ 72-912, and these two sections can be construed in harmony. Edwards v. Industrial Comm’n, 130 Idaho 457, 943 P.2d 47 (1997). Worker was the direct employee of the contractor, which in turn contracted with the respondents, and at the time of his injury, the worker was doing the work his employer had contracted to do; thus, the respondents would not have been permitted to escape liability to the worker if the employer had not complied with this section; hence, they were employers as contemplated in§ 72-216. Kolar v. Cassia County Idaho, 142 Idaho 346, 127 P.3d 962 (2005).

Denial of Application.

Denial of city’s application for self-insurance was supported by substantial and competent evidence where commission found that city seemed to contemplate limiting its liability and intended to purchase excess insurance to cover any additional liability, that city had no definite plan to provide excess insurance and thus did not met the statutory requirement that “payment of compensation be sure and certain” and that city’s plan was not sufficient to meet requirements for self-insurance. City of Boise v. Industrial Comm’n, 129 Idaho 906, 935 P.2d 169 (1997).

Failure to Secure Payment of Compensation.

By virtue of§ 72-210, claimant was entitled to attorney fees in defendant’s appeal of a worker’s compensation award since defendant failed to secure payment of compensation as required under this section. Swenson v. Estate of Craner, 117 Idaho 57, 785 P.2d 621 (1990).

Interpretation.

The plaintiff’s request that the commission issue a declaratory ruling interpreting this section and§ 72-912 which would have required the commission itself to take certain action raised serious due process questions, and a petition for writ of mandamus was the proper course of action for the plaintiff to take under the circumstances in this case. Edwards v. Industrial Comm’n, 130 Idaho 457, 943 P.2d 47 (1997).

Public Employers.

The language of this section is clear and unambiguous that public employers are permitted to self-insure for worker’s compensation. City of Boise v. Industrial Comm’n, 129 Idaho 906, 935 P.2d 169 (1997).

Commission’s ruling denying city’s application for self-insurance was not premature and was supported by substantial evidence where resolution passed by the city seemed to contemplate limiting the city’s liability to $500,000 per occurrence and commission had never authorized self-insurance with limited liability and such limitation is not permitted by rule, regulation or statute, where city had no plan to provide excess insurance and this meant the statutory requirement that payment of compensation be sure and certain was not met, where city had little experience with workers’ compensation to give it the required expertise in workers’ compensation, and where city was given every opportunity to support its position through its application and various other materials provided to the Commission. City of Boise v. Industrial Comm’n, 129 Idaho 906, 935 P.2d 169 (1997).

Statutory Employer.

The phrase “provided, that every public employer shall insure its liability for payment of compensation with the state insurance fund unless such fund shall refuse to accept that risk when the application for insurance is made” is contained entirely within subsection (1) [now (1)(a)] of this section and applies only to such subsection; thus if a public employer chooses to obtain an insurance policy, the employer must first apply to SIF for the policy and if SIF refuses to accept the risk then the public employer may seek out other sources for the policy; however, a public employer, like a private employer, may provide security for worker’s compensation through self-insurance under the provisions of subsection (2) [now (1)(b)] of this section and it need not attempt to first obtain a policy from SIF. City of Boise v. Industrial Comm’n, 129 Idaho 906, 935 P.2d 169 (1997). Statutory Employer.

In a personal injury and wrongful death suit by family members of employees of a contractor hired by the state to work on a highway, because the state had expressly hired the services of the contractor, and was liable to pay the employees workers compensation benefits if their direct employer did not, state was a statutory employer and was entitled to immunity under the exclusive remedy rule. Fuhriman v. State, 143 Idaho 800, 153 P.3d 480 (2007).

Subcontractors.

Employer food service supplier was immune to liability for injuries received by an employee of its subcontractor, because the subcontractor had properly provided workers’ compensation coverage for its employees. Gonzalez v. Lamb Weston, Inc., 142 Idaho 120, 124 P.3d 996 (2005).

Decisions Under Prior Law

Liability of State Insurance Fund.

The state insurance fund was liable for injuries sustained prior to the expiration of its coverage notwithstanding an application for insurance in an insurance company had been made which recited that it was to be effective as of the date of “this application” but which did not actually become effective until the expiration of the coverage of the state insurance fund. Holt v. Spencer Lumber Co., 68 Idaho 478, 199 P.2d 268 (1948).

An injured employee of an uninsured contractor was not entitled to recover compensation from the insured materialman on the ground that the materialman and his surety constituted the “industry,” and that the compensation act created an entity out of the industry and charged thereto all losses sustained by an injured workman, since the act did not contemplate payment to an injured workman by the state insurance fund unless his employer was insured therewith. Moon v. Ervin, 64 Idaho 464, 133 P.2d 933 (1943).

Enforcement.

Indian Employers.

The Idaho industrial commission has the authority to enforce the requirements of this section against Indian employers doing business within a reservation; however, the doctrine of sovereign immunity precludes the Idaho industrial commission from bringing an action against a tribal government or a tribally-owned business.OAG 88-5.

Am. Jur. 2d.

C.J.S.

ALR.

Liability of insurance agent or broker on ground of inadequacy of liability insurance coverage procured. 72 A.L.R.3d 704.

Liability of insurance agent or broker on ground of inadequacy of life, health, and accident insurance coverage procured. 72 A.L.R.3d 735.

Liability of insurance agent or broker on ground of inadequacy of property insurance coverage procured. 72 A.L.R.3d 747.

Compiler’s Notes.

For further information on the Idaho national laboratory, see https://www.inl.gov/ .

Cross References.

State treasurer,§ 67-1201 et seq.

Attorney’s Fees and Penalty.

Where the record in a workmen’s compensation proceeding indicated that an employer neither had workmen’s compensation insurance at the time of claimant’s industrial accident nor had deposited sufficient security with the commission, the commission did not err in awarding a penalty and attorney’s fee. Thom v. Callahan, 97 Idaho 151, 540 P.2d 1330 (1975).

Compiler’s Notes.

The term “this law” appearing twice in this section refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Pursuant to S.L. 1974, ch. 11, § 3, the reference in this section to the commissioner of insurance should now be to the director of the department of insurance. See§ 41-203.

Decisions Under Prior Law

Filing and Service of Claim.

The requirement, with respect to the filing and service of claim of accident, was the same with respect to the insurance carrier of employee. Moody v. State Hwy. Dep’t, 56 Idaho 21, 48 P.2d 1108 (1935).

Under the workmen’s compensation law, the duties and liabilities of a surety were prescribed by statute, and the statutory provision became a part of the contract, whether given by surety company or state insurance fund, and the injured workman or legal representatives were authorized to prosecute a separate or independent claim against a surety. Smith v. McHan Hdwe. Co., 56 Idaho 43, 48 P.2d 1102 (1935).

Liability of Surety.

Surety’s assumption of liability was contractual. Stinger v. Dickens Consol. Mines Co., 44 Idaho 558, 258 P. 1117 (1927).

Liability was upon both the employer and his surety and where claims were made against two employers engaged in a joint venture, it was error to dismiss their sureties from the proceeding. Clawson v. General Ins. Co., 90 Idaho 424, 412 P.2d 597 (1966).

Cross References.

Director of department of insurance,§ 41-202.

Compiler’s Notes.

The term “this law” near the middle of this section refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Decisions Under Prior Law

Aggravation of Preexisting Infirmity.

When an industrial accident aggravated a preexisting infirmity, the employer was liable for that portion of the disability and medical expense causally connected to the accident itself. Clark v. Sage, 95 Idaho 79, 502 P.2d 323 (1972).

Construction.

These statutory provisions had to be read into all contracts of insurance. Smith v. McHan Hdwe. Co., 56 Idaho 43, 48 P.2d 1102 (1935).

Contribution.

Insurer, who was paid premiums due under policy, and who paid losses under the policy was not entitled to contribution from another insurer whose policy was written by mistake, and who never received any premiums on same. Musgrave v. Liberty Mut. Ins. Co., 73 Idaho 261, 250 P.2d 909 (1952).

Parties to Claims.

Claim against insurance company was not barred because company was not made party to original proceedings against employer before industrial accident board [now industrial commission]. Hauter v. Coeur d’Alene Antimony Mining Co., 39 Idaho 621, 228 P. 259 (1924).

Provision Read into Contracts.

The statutory provision that “the notice to or knowledge of the occurrence of the injury on the part of the employer shall be deemed notice or knowledge, as the case may be on the part of the surety,” was included among those provisions which had to be read into all contracts of workmen’s compensation insurance. “Employer” included his surety so far as applicable. Larson v. State, 79 Idaho 446, 320 P.2d 763 (1958).

Notice.

Notice to employer was notice to surety. In re Cain, 64 Idaho 389, 133 P.2d 723 (1943).

Since notice to the employer was notice to the surety, where employer’s shop foreman was with claimant at the time of the accident and reported the accident directly to the employer and another employee prepared the notice and claim for compensation about six weeks later, both employer and surety had sufficient notice of claimant’s accident and injury. Facer v. E.R. Steed Equip. Co., 95 Idaho 608, 514 P.2d 841 (1973).

Compiler’s Notes.

The term “this law” in the middle of this section refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Compiler’s Notes.

The term “this law” at the end of the second sentence in subsection (1) refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Amendments.

The 2006 amendment, by ch. 16, substituted “canceled” for “cancelled” twice in subsection (2).

Compiler’s Notes.

The term “this act” near the beginning of subsection (2) refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Section 19 of S.L. 1987, ch. 278 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Effective Dates.

Section 2 of S.L. 1972, ch. 185, declared an emergency. Approved March 21, 1972.

Section 18 of S.L. 1987, ch. 278 read: “The provisions of this act shall take effect on July 1, 1987, provided however, that Section [Sections] 1 through 11 shall apply only to causes of action which accrue on and after July 1, 1987. Provided further, that Section 6-1603, Idaho Code, as enacted herein, is hereby repealed and does sunset for causes of action which accrue after June 30, 1992.” CASE NOTES

Cancellation Notice.

Where an Oregon employer’s worker’s compensation insurance policy contained an amendatory endorsement which indicated that it covered employer’s operations in certain enumerated states, one of which was Idaho, the policy remained in effect in Idaho even though insurance company had canceled the policy in accordance with Oregon cancellation requirements; as the insurance company failed to comply with Idaho’s sixty-day notice of cancellation requirement. Smith v. O/P Transp., 128 Idaho 697, 918 P.2d 281 (1996).

Failure to File.

The industrial commission’s finding that an employer had failed to file its notice of security as required by this section was sufficient to justify the imposition of penalties required by§ 72-210, without having to resolve the ultimate issue of coverage between the employer and its insurer. Heese v. A & T Trucking, 102 Idaho 598, 635 P.2d 962 (1981).

Jurisdiction of Industrial Commission.

Questions arising under subsection (2) of this section and§ 72-313 are within the subject matter jurisdiction of the industrial commission. Smith v. O/P Transp., Inc., 120 Idaho 123, 814 P.2d 23 (1991).

Reinstatement of Cancelled Policy.

Employer was not covered by its owner’s workers’ compensation insurance policy. Although the state insurance fund had cancelled the policy and offered to reinstate it with the employer as the insured, provided that the owner fulfilled certain conditions in a certain amount of time, the owner failed to do so. Allen v. Reynolds, 145 Idaho 807, 186 P.3d 663 (2008).

Strict Compliance.

Viewing§ 72-210, subsection (1) of this section and§ 72-312 in pari materia, it is apparent that the legislature intended strict compliance with those provisions requiring the employer to obtain security for payment of compensation to injured employees and that it intended substantial penalties for noncompliance; accordingly, an employer’s good faith but futile attempt to procure insurance did not excuse it from liability for the ten percent surcharge, costs or attorney fees imposed by§ 72-210. Heese v. A & T Trucking, 102 Idaho 598, 635 P.2d 962 (1981).

Cancelation.

In view of fact that contracts of insurance were issued not only for benefit of employer but also for employee, who necessarily had no control over them, any attempted cancelation should have been in strict compliance with terms of contract itself. Hauter v. Coeur d’Alene Antimony Mining Co., 39 Idaho 621, 228 P. 259 (1924).

State insurance fund had a right to cancel policy, by compliance with the law and policy provisions. State ex rel. Wright v. Smith, 60 Idaho 316, 91 P.2d 389 (1939).

Strict compliance regarding cancelation of compensation insurance policies had long been practiced in this state and was enjoined by statute. Cowles v. State Ins. Fund, 67 Idaho 165, 173 P.2d 722 (1946); Passmore v. Austin, 73 Idaho 484, 253 P.2d 800 (1953).

Failure of fund to notify employer of cancelation and to refund unearned premiums resulted in liability of fund for compensation for employee who was killed in course of employment. Cowles v. State Ins. Fund, 67 Idaho 165, 173 P.2d 722 (1946).

Notice.

Statutory requirement for 10 days’ notice in proceeding by insurer to cancel coverage was for the benefit of employer and injured worker and did not apply to contribution suit between insurers. Musgrave v. Liberty Mut. Ins. Co., 73 Idaho 261, 250 P.2d 909 (1952).

Compensation policy was not canceled where notice of cancelation was sent to insured by ordinary mail where policy in addition to provisions of the statute required service of notice, either by personal service or by registered mail. Passmore v. Austin, 73 Idaho 484, 253 P.2d 800 (1953).

Survival of Claims to Workman’s Estate.

Although claims for specific indemnities for permanent injuries survived the death of the workman, where the injuries were multiple and combined constituted total permanent disability, claims for specific indemnities could not survive to the workman’s estate. Martin Estate v. Woods, 94 Idaho 870, 499 P.2d 569 (1972).

Cross References.

Penalty for misdemeanors when not otherwise provided,§ 18-113.

Compiler’s Notes.

The bracketed insertion near the beginning of the section was added by the compiler to conform to the statutory citation style.

The term “this law” at the end of the first sentence refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Strict Compliance.

Viewing§ 72-210, subsection (1) of§ 72-311 and this section in pari materia, it is apparent that the legislature intended strict compliance with those provisions requiring the employer to obtain security for payment of compensation to injured employees and that it intended substantial penalties for noncompliance; accordingly, an employer’s good faith, but futile, attempt to procure insurance did not excuse it from liability for the ten percent surcharge, costs or attorney fees imposed by§ 72-210. Heese v. A & T Trucking, 102 Idaho 598, 635 P.2d 962 (1981).

Decisions Under Prior Law

Provisions Mandatory.

The provisions of the statute requiring employer to post notice of coverage were mandatory. Modlin v. Twin Falls Canal Co., 49 Idaho 199, 286 P. 612 (1930).

Attorney Fees.

Attorney’s fees are not recoverable under this section. Clark v. Shari’s Mgmt. Corp., 155 Idaho 576, 314 P.3d 631 (2013).

Firefighter whose occupational disease claim was denied was not entitled to an award of attorney’s fees because (1) the firefighter’s argument in support of the award was insufficient, and (2) the firefighter did not prevail on appeal. Estate of Aikele v. City of Blackfoot, 160 Idaho 903, 382 P.3d 352 (2016) (decided prior to 2006 amendment of§ 72-102).

Jurisdiction of Industrial Commission.

Questions arising under subsection (2) of§ 72-311 and this section are within the subject matter jurisdiction of the industrial commission. Smith v. O/P Transp., Inc., 120 Idaho 123, 814 P.2d 23 (1991).

Legislative Intent.

The legislative purpose behind this section is to ensure that injured claimants receive immediate compensation whenever the employers or sureties involved contest liability between them. Brooks v. Standard Fire Ins. Co., 117 Idaho 1066, 793 P.2d 1238 (1990).

Cited Hite v. Kulhenak Bldg. Contractor, 96 Idaho 70, 524 P.2d 531 (1974); Loughmiller v. Interstate Farmlines, 107 Idaho 179, 687 P.2d 569 (1984); McGivney v. Aerocet, Inc., — Idaho —, 443 P.3d 241 (2019). Decisions Under Prior Law

Survival of Claims to Workman’s Estate.

Although claims for specific indemnities for permanent injuries survived the death of the workman, where the injuries were multiple and combined constituted total permanent disability, claims for specific indemnities could not survive to the workman’s estate. Martin Estate v. Woods, 94 Idaho 870, 499 P.2d 569 (1972).

The obligation of an employer and surety to pay for the total and permanent disability of a workman terminated on the death of the workman. Martin Estate v. Woods, 94 Idaho 870, 499 P.2d 569 (1972).

Compiler’s Notes.

The term “this law” near the beginning of the section refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Cross References.

Voluntary payment obviates necessity of filing claim,§ 72-701.

Compiler’s Notes.

The term “this law” near the middle of the section refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Decisions Under Prior Law

Excess Payments.

Where excess payments had been made under the compensation law, the rights of the parties with respect to the sums paid in excess of those provided for by law were governed by the statute. McRae v. School Dist. No. 23, 56 Idaho 384, 55 P.2d 724 (1936).

Unauthorized Payments to Guardian.

Foreign guardian who had not complied with statutory requirements necessary to delivery of ward’s estate was incompetent to make agreements for payments by surety company of compensation due his ward, even though such agreements were approved by industrial board; however, surety was entitled to credit for any sums actually used for the benefit of ward. In re Bones, 48 Idaho 85, 280 P. 223 (1929).

Decisions Under Prior Law

Purpose.

Purpose of periodical payments was to preclude any possibility of imprudent employee or dependent wasting means provided for his support and thereby becoming burden on society. Kaylor v. Callahan Zinc-Lead Co., 43 Idaho 477, 253 P. 132 (1927).

Cross References.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

Compiler’s Notes.

The terms “this law” near the end of the first sentence in subsection (1) and “this act” near the end of subsections (1) and (2) refer to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Burden of Proof.

The burden was upon the claimant to establish that the contract between him and his alleged employer was a device to relieve the alleged employer from liability under the workman’s compensation law. Smith v. Sindt, 89 Idaho 409, 405 P.2d 959 (1965).

Effect of Agreement.

Where other factors indicate the existence of a right to control and an employee-employer relationship, the court will refuse to be bound by an agreement between the parties as to the nature of their relationship; no such agreement can constitute a waiver by an employee of any rights he might otherwise have under the workmen’s compensation law. Burdick v. Thornton, 109 Idaho 869, 712 P.2d 570 (1985).

Stipulation made as part of a motion to dismiss a worker’s compensation action did not constitute an invalid agreement under subsection (2) of this section. Emery v. J.R. Simplot Co., 141 Idaho 407, 111 P.3d 92 (2005).

Independent Contractor.

Where the only evidence suggesting an independent contractor relationship was that one of the owners told worker that he would be an independent contractor, to which worker agreed, any such agreement whereby worker would be called an independent contractor, without him actually being one, was void for public policy. Mortimer v. Riviera Apts., 122 Idaho 839, 840 P.2d 383 (1992).

Reduction of Benefits.

This section does not prohibit a reduction of disability retirement benefits. It only prohibits an agreement by an employee to relieve an employer of an obligation that the employer has because of the workers’ compensation laws. Osick v. Public Employee Retirement Sys., 122 Idaho 457, 835 P.2d 1268 (1992).

Waiver of Rights.

Until the industrial special indemnity fund’s (ISIF) liability is established under§ 72-332, an agreement waiving an employee’s rights to claims against ISIF is violative of subsection (2) of this section. Wernecke v. St. Maries Joint Sch. Dist. # 401, 147 Idaho 277, 207 P.3d 1008 (2009).

Violation.

Where the commission approved a stipulation granting employer credit for previously paid PPI benefits, without statutory jurisdiction, depriving claimant benefits to which he was entitled under the law, the commission’s order is void. Davis v. Hammack Mgmt., 161 Idaho 791, 391 P.3d 1261 (2017).

Cross References.

Industrial administrative fund,§ 72-519 et seq.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

Compiler’s Notes.

The term “this law” appearing throughout this section refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Application.

Construction with Other Laws.

Pursuant to 40 U.S.C.S. § 290, which extended the authority of states to apply workers’ compensation laws to lands owned or held by the United States, Idaho’s workers’ compensation laws apply on land “owned or held by the United States of America by deed or act of cession, by purchase or otherwise,”, and the right which Indians held in reservation land is that of occupancy, the fee and right of disposition remains in the United States government. As such, Idaho’s workers’ compensation laws apply on the reservation and the state courts have the subject matter jurisdiction to enforce such laws against an Indian tribe member operating a business on an Indian reservation. State ex rel. Indus. Comm’n v. Indian Country Enters., Inc., 130 Idaho 520, 944 P.2d 117 (1997). Construction with Other Laws.

This section fits within the “except as otherwise herein provided” language of§ 72-707 by granting the district court jurisdiction over an action to recover statutory penalties. State ex rel. Industrial Comm’n v. Quick Transp., Inc., 134 Idaho 240, 999 P.2d 895 (2000).

Procedure.

The industrial commission followed the procedure set forth unambiguously in the statute when, in its executive agency capacity, determined penalties should be assessed against employer for violating the requirements of§ 72-301 and forwarded the case to the attorney general’s office; the attorney general then filed an action in district court to collect the statutory penalties against employer. State ex rel. Industrial Comm’n v. Quick Transp., Inc., 134 Idaho 240, 999 P.2d 895 (2000).

Cross References.

Wages as preferred claims,§ 45-601 et seq.

Compiler’s Notes.

The term “this law” refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Cross References.

Secretary of state,§ 67-901 et seq.

Compiler’s Notes.

The term “this law” at the end of the section refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Cross References.

Director of department of insurance,§ 41-202.

Amendments.

This section was amended by two 1996 acts — ch. 220, § 2, and ch. 305, § 4, both effective July 1, 1996 — which appear to be compatible and have been compiled together. Whereas both acts added a fifth sentence, the sentence added by ch. 305, § 4, has been compiled as the present sixth sentence.

The 1996 amendment, by ch. 220, § 2, in the first sentence substituted “director of the department of insurance” for “commissioner of insurance”; in the first and second sentences substituted “worker’s compensation” for “workmen’s compensation” in each occurrence; and added the present fifth sentence. The 1996 amendment, by ch. 305, § 4, in the first sentence substituted “director of the department of insurance” for “commissioner of insurance”; in the first and second sentences substituted “worker’s compensation” for “workmen’s compensation” in each occurrence; and added the present sixth sentence.

Legislative Intent.

Section 1 of S.L. 1996, ch. 220 read: “Legislative Intent. It is the intent of the legislature that, through this act, domestic reciprocal insurers which offer only worker’s compensation coverage be treated like self-insured employers. Commercial insurance companies are required to participate in the assigned risk pool. However, it is the intent of the legislature that small, domestic reciprocal insurers addressed through this act not be included in the assigned risk pool and not be required to participate in the assigned risk pool system.”

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Purpose of Fund.

The purpose of fund was to relieve the employer of a handicapped person of the responsibility of paying for total disability compensation to an employee rendered totally and permanently disabled because of his pre-existing handicap coupled with a subsequent industrial injury. Cox v. Intermountain Lumber Co., 92 Idaho 197, 439 P.2d 931 (1968); Wernecke v. St. Maries Joint School Dist. #401, 147 Idaho 277, 207 P.3d 1008 (2009).

Decisions Under Prior Law

Construction.

The provisions of former statute relating to the industrial special indemnity fund were not retroactive. Kelley v. Prouty, 54 Idaho 225, 30 P.2d 769 (1934).

Liability of Fund.

Commission’s determination that claimant failed to establish prima facie that he was totally and permanently disabled under the odd-lot doctrine so as to render the industrial special indemnity fund liable for workers’ compensation benefits was supported by substantial and competent evidence where claimant himself stated that he did not believe that the vocational counselors were attempting to find him specific employment, and where the records supported the conclusion that claimant did not attempt any other types of employment, that efforts to find such employment would not be futile, that the vocational counselors’ testimony was vague and their efforts to find employment for the claimant were unmotivated and minimal at best and that little weight should be given to their conclusions, and although claimant did have a significant disability, with his experience, education, training and physical abilities, he was employable. Lethrud v. State, Indus. Special Indem. Fund, 126 Idaho 560, 887 P.2d 1067 (1994).

Cross References.

Department of administration,§ 67-5701 et seq. Industrial commission,§ 72-501 et seq.

State treasurer,§ 67-901 et seq.

Prior Laws.

Former§ 72-324, which comprised I.C.,§ 72-324, as added by 1971, ch. 124, § 3, p. 422, was repealed by S.L. 1978, ch. 264, § 22.

Compiler’s Notes.

The term “this act” near the end of the first paragraph refers to S.L. 1978, chapter 264, which is codified as§§ 72-102, 72-324 to 72-326, 72-329 to 72-333, 72-428, 72-432, 72-448, 72-450, 72-520, 72-523, 72-524, 72-602, 72-701, 72-704, and 72-706.

Cross References.

State treasurer,§ 67-901 et seq.

Cross References.

State treasurer,§ 67-901 et seq.

Cross References.

Director of department of insurance,§ 41-202.

Idaho insurance code,§ 41-101 and notes thereto.

State insurance fund,§ 72-901 et seq.

Prior Laws.

Former§ 72-327, which comprised I.C.,§ 72-327, as added by 1986, ch. 93, § 2, p. 270; am 1988, ch. 351, § 1, p. 1050; am. 1994, ch. 180, § 234, p. 420, was repealed by S.L. 1997, ch. 206, § 2, effective July 1, 1997.

Amendments.

The 2006 amendment, by ch. 247, in subsection (1), deleted “within thirty (30) days after April 1, 1998, and” preceding “within thirty (30) days” and “successive” preceding “year”; in subsection (1)(c), inserted “and April 1,” substituted “December 31” for “June 30,” and deleted the former second sentence, which read: “The amount of each responsible entity’s or person’s assessment which is due and payable within thirty (30) days subsequent to April 1 of any year shall be calculated by dividing one-half (1/2) of the total applicable assessment amount by the responsible entity’s or person’s proportionate share of the total gross indemnity benefits paid on open worker’s compensation claims during the preceding period of time from July 1 through December 31”; and in subsection (3), substituted “twelve (12) month period from January 1” for “six (6) month period from July 1” and “no later than March 31” for “no later than January 31,” and deleted “and shall report their total gross indemnity benefits paid during the six (6) month period from January 1 through June 30 no later than July 31 of said year” from the end.

The 2007 amendment, by ch. 8, substituted “March 3” for “March 31” in subsection (3).

Effective Dates.

Section 2 of S.L. 2000, ch. 42 provided that the act shall be in full force and effect on and after July 1, 2000.

Decisions Under Prior Law

Exemptions.

State insurance fund (SIF) was not required to pay five percent excise levy to industrial special indemnity fund (ISIF) on retraining benefits paid to claimant since retraining benefits were “temporary total or temporary partial disability benefits,” which were statutorily exempt from levy. Adams v. Caribou Mem. Hosp., 126 Idaho 1022, 895 P.2d 1215 (1995).

Cross References.

Attorney general,§ 67-1401 et seq.

Prior Laws.

Former§ 72-328, which comprised I.C.,§ 72-238, as added by 1986, ch. 93, § 3, p. 270; am. 1994, ch. 180, § 235, p. 420, was repealed by S.L. 1997, ch. 206, § 2, effective July 1, 1997.

Compiler’s Notes.

The term “this act” throughout this section refers to S.L. 1997, chapter 206, which is codified as§§ 72-324, 72-327, and 72-328.

Cross References.

State treasurer,§ 67-901 et seq.

Cross References.

Attorney general,§ 67-1401 et seq.

Cross References.

Deductions for preexisting injuries and infirmities,§ 72-406.

“Permanent disability” or “under a permanent disability” defined,§ 72-423.

“Permanent impairment” defined,§ 72-422.

Compiler’s Notes.

The bracketed insertion at the end of subsection (1) was added by the compiler to correct the name of the referenced fund. See§ 72-323.

Aggravation of Preexisting Condition.

When an industrial accident aggravated a preexisting infirmity, the employer was liable for that portion of the disability and medical expense causally connected to the accident itself. Clark v. Sage, 95 Idaho 79, 502 P.2d 323 (1972).

Claimant could not litigate the issue of apportionment based upon the identical 33% whole person impairment rating he relied upon in entering into agreement with the state insurance fund and the state hospital for the agreement provided the plaintiff a lump sum award based upon his 33% whole person impairment rating and since he then sought to attribute 13% of his 33% whole person impairment to a pre-existing condition, thereby increasing his whole person impairment rating to 46%, without presenting additional allegations of pre-existing impairment his claim against the industrial special indemnity fund was barred by the doctrine of collateral estoppel. Jackman v. State, Indus. Special Indem. Fund, 129 Idaho 689, 931 P.2d 1207 (1997).

Any Cause or Origin.

Apportionment.

Under subsection (1) of this section, a pre-existing impairment can result from a previous industrial accident in which the employer and the industrial special indemnity fund shared liability. Quincy v. Quincy, 136 Idaho 1, 27 P.3d 410 (2001). Apportionment.

Essentially, this statute provides for an apportionment of nonmedical factors between the employer/surety and the industrial special indemnity fund; the appropriate solution to the problem of apportioning the nonmedical disability factors, in an odd-lot case where the fund is involved, is to prorate the nonmedical portion of disability between the employer and the fund, in proportion to their respective percentages of responsibility for the physical impairment. Neilson v. State, Indus. Special Indem. Fund, 106 Idaho 878, 684 P.2d 280 (1984).

Where there was no question that the prior injury did not combine with the recent injury to create total and permanent disability, because there was already total disability before the second injury ever occurred, it was inappropriate for the industrial commission to apportion total and permanent disability pursuant to the Carey formula ( Carey v. Clearwater County Road Dep’t , 107 Idaho 109, 686 P.2d 54 (1984)) between the industrial special indemnity fund (ISIF) and the employer. Hamilton v. Ted Beamis Logging & Constr., 127 Idaho 221, 899 P.2d 434 (1995).

Industrial commission erred in its determination that medical benefits awarded to workers’ compensation claimant who was totally and permanently disabled under the odd-lot doctrine could be assessed totally against employer’s surety and were not apportionable under the 1990 version of this section; though that would be the case following the 1991 amendments to this section, this award of medical benefits had to be apportioned in the same proportion as the determined responsibility of the industrial special indemnity fund (ISIF) and employer’s surety for the nonmedical portions of the award. Dohl v. PSF Indus., Inc., 127 Idaho 232, 899 P.2d 445 (1995).

— Findings Required.

Where a claimant had suffered prior injuries which resulted in permanent partial disability and later was injured during the course of his employment as a county undersheriff, with the last injury resulting in 100 percent total and permanent disability, the industrial commission erred in holding as a matter of law that the employer’s and the surety’s liability could be calculated by subtracting claimant’s permanent disability before the accident from the total compensation due, since this section required no finding of permanent disability prior to the last work-related injury. Curtis v. Shoshone County Sheriff’s Office, 102 Idaho 300, 629 P.2d 696 (1981).

This section does not require a finding of permanent disability existing prior to a work-related injury, but requires a finding of a pre-existing permanent physical impairment and limits the employer’s liability to the amount of disability attributable to the particular injury occurring in his employment; the indemnity fund is liable for the difference between the compensation that would be payable for the second injury alone and the total compensation due and the industrial commission must determine the ratio of apportionment. Curtis v. Shoshone County Sheriff’s Office, 102 Idaho 300, 629 P.2d 696 (1981).

Where claimant’s consolidated claims encompassed two independent work-related injuries caused by two separate accidents at different places of employment, and two non-work-related conditions for which compensation was sought, the industrial commission erred in apportioning liability based upon the impact of an injury which was not “preexisting” within the meaning of this section. Smith v. J.B. Parson Co., 127 Idaho 937, 908 P.2d 1244 (1996). Industrial commission’s determination that employer at the time of injury was liable for a portion of the percentage of disability attributable to the injury, where a preexisting degenerative condition was accelerated by the injury, was affirmed, where supported by substantial and competent evidence, although, at the time of the injury, claimant had not reached total permanent disability. Quincy v. Quincy, 136 Idaho 1, 27 P.3d 410 (2001).

Apportioning disability under both§ 72-406(1) and subsection (1) of this section requires two steps. First, the industrial commission must determine the claimant’s disability when considering the pre-existing physical impairment(s) and the subsequent injury, and, second, it must then apportion disability between the injury and the pre-existing impairment(s). Christensen v. S.L. Start & Assocs., 147 Idaho 289, 207 P.3d 1020 (2009).

— Proof.

Testimony to a “medical probability,” can be received in such manner as to which the parties may agree, or as the commission may direct, and the apportionment by the commission required by this section can be determined, also to a medical probability. Bowman v. Twin Falls Constr. Co., 99 Idaho 312, 581 P.2d 770 (1978), overruled on other grounds, Demain v. Bruce McLaughlin Logging, 132 Idaho 782, 979 P.2d 655 (1999).

Burden of Proof.

If the evidence of the medical and nonmedical factors places a claimant prima facie in the “odd-lot” category, that is a group of workers who are physically able to perform some work but are so handicapped that they will not be employed regularly in any well-known branch of the labor market, the burden is then on the employer or the special industrial indemnity fund to show that some kind of suitable work is regularly and continuously available to the claimant. Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 565 P.2d 1360 (1977).

In order to meet the burden of showing that some kind of suitable work was regularly and continuously available to a claimant, the fund could not merely show that the claimant was able to perform some type of work, but must establish that there was an actual job within a reasonable distance from the claimant’s home which he was able to perform or for which he could be trained and which he would have a reasonable opportunity to obtain. Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 565 P.2d 1360 (1977).

Where a claimant whose injury in the course of his employment aggravated a preexisting injury fell into the odd-lot category, the burden was shifted to the employer to show that some kind of suitable work was regularly and continuously available to the claimant. Francis v. Amalgamated Sugar Co., 98 Idaho 407, 565 P.2d 1364 (1977).

The ultimate rating of permanent disability should be an administrative finding by the commission with no particular method of proof required, and a claimant is not required to present testimony of vocational experts expressing their opinions in numerical or percentage terms. Bell v. Clear Springs Trout Co., 107 Idaho 568, 691 P.2d 1183 (1984).

The claimant has the burden of establishing a prima facie case of total disability within the odd-lot category; once the claimant meets his or her initial burden of establishing a prima facie case of total disability within the odd-lot category, the burden then shifts to the industrial special indemnity fund to show that some kind of suitable work is readily and continuously available to the claimant. Mapusaga v. Red Lion Riverside Inn, 113 Idaho 842, 748 P.2d 1372 (1987), overruled on other grounds, Archer v. Bonners Ferry Datsun, 117 Idaho 166, 786 P.2d 557 (1990). Burden of proof is on the party seeking to invoke the liability of the industrial special indemnity fund (ISIF) under the statute, to show that the disability would not have been total “but for” the pre-existing condition. Garcia v. J.R. Simplot Co., 115 Idaho 966, 772 P.2d 173 (1989), overruled on other grounds, Archer v. Bonners Ferry Datsun, 117 Idaho 166, 786 P.2d 557 (1990).

Where a vocational evaluator testified that taking into account the loss of worker’s arm, the impairment to her hip, and the pre-existing conditions of her back and thumb, there were no jobs, among the 2500 he considered, the worker could perform, and where he indicated the specific ways in which the condition of her back eliminated her from some jobs and stated that the condition of her thumb prevented her from being able to handle equipment that required fine motor coordination, the evidence was sufficient to fulfill the requirement that but for the pre-existing impairments, worker would not have been totally and permanently disabled. Garcia v. J.R. Simplot Co., 115 Idaho 966, 772 P.2d 173 (1989), overruled on other grounds, Archer v. Bonners Ferry Datsun, 117 Idaho 166, 786 P.2d 557 (1990).

Under the doctrine of quasi-estoppel, an employer could not assert that a claimant had a preexisting impairment prior to his injury for which the industrial special indemnity fund was liable, because the employer had previously argued that the same preexisting impairment was not work-related. Vawter v. UPS, 155 Idaho 903, 318 P.3d 893 (2014).

Combined Effects.

Because the “combined effects” requirement in subsection (1) of this section requires a claimant seeking to establish ISIF liability to also prove that the disability would not have been total but for the industrial injury, where the pre-existing impairment alone resulted in claimant’s total disability, she could not recover from ISIF. Bybee v. State, Indus. Special Indemnity Fund, 129 Idaho 76, 921 P.2d 1200 (1996).

The test to satisfy the “combined effects” requirement of subsection (1) of this section is whether, but for the industrial injury, the worker would have been totally and permanently disabled immediately following the occurrence of that injury. This encompasses both the combination scenario where each element contributes to the total disability, and the case where the subsequent injury accelerates and aggravates the pre-existing impairment. Bybee v. State, Indus. Special Indemnity Fund, 129 Idaho 76, 921 P.2d 1200 (1996).

To satisfy the “combined effects” requirement in this section, a claimant must show that but for the pre-existing impairments, he would not have been totally and permanently disabled. Eckhart v. State, Indus. Special Indem. Fund, 133 Idaho 260, 985 P.2d 685 (1999).

The issue whether a total permanent disability is the result of the combined effects of a pre-existing and work-related injury is more expansive than a simple medical inquiry, because a determination of total permanent disability necessarily takes into account non-medical factors, e.g., testimony from vocational rehabilitation experts. Green v. Green, 160 Idaho 275, 371 P.3d 329 (2016).

Construction With Other Law.

The focus in this section is on the employer’s liability for payment of income benefits, as distinguished from the focus in§ 72-431, which is on the employee’s disability. Section 72-431, governing the inheritability of income benefits, applies only if an employee has sustained a disability less than total. Section 72-431 does not require consideration of how the total permanent disability benefits are paid, or by whom and is specific in referring only to whether or not the employee receives a total permanent disability award. Palomo v. J.R. Simplot Co., 131 Idaho 314, 955 P.2d 1093 (1998). This section, when properly invoked, constitutes a narrowly-defined exception to the prohibition in§ 72-318(2). Wernecke v. St. Maries Joint Sch. Dist. # 401, 147 Idaho 277, 207 P.3d 1008 (2009).

Evidence.

Once the industrial commission places new evidence into the record, all parties should have a right to dispute that evidence by challenging its validity or by introducing additional or conflicting evidence; thus, it was error for the commission not to allow the industrial special indemnity fund to dispute the physician’s rating of 12% impairment with respect to the claimant’s arm. Mapusaga v. Red Lion Riverside Inn, 113 Idaho 842, 748 P.2d 1372 (1987), overruled on other grounds, Archer v. Bonners Ferry Datsun, 117 Idaho 166, 786 P.2d 557 (1990).

Findings of commission.

Where contested findings of the industrial commission are supported by substantial, competent evidence, those findings will not be disturbed on appeal; thus, although the evidence was conflicting as to whether claimant was a odd-lot worker, the commission’s findings in this matter were supported by substantial and competent evidence and would not be disturbed on appeal. Bell v. Clear Springs Trout Co., 107 Idaho 568, 691 P.2d 1183 (1984).

Record contained hearing testimony of worker and employer, which supported the commission’s findings that worker’s ataxic condition constituted a hindrance or obstacle to employment where worker and employer testified that worker told employer that she had problems standing on her feet and walking up stairs. Colpaert v. Larson’s, Inc., 115 Idaho 825, 771 P.2d 46 (1989).

The industrial commission’s determination of disputed and conflicting facts and opinions of experts will be upheld if supported by substantial, competent evidence, and evidence is “substantial and competent” if a reasonable mind might accept such evidence as adequate to support a conclusion. Wagar v. ASARCO, Inc., 127 Idaho 928, 908 P.2d 1235 (1996).

The industrial commission’s lack of specific finding as to the date it assigned an impairment rating on claimant’s preexisting blood condition is not fatal to its determination; as the fact finder and the evaluator of impairment, the commission’s own determination of the impairment rating of claimant’s blood disease, based upon the testimony of the claimant and the reports of his physicians, was held to be supported by substantial and competent evidence in the record. Smith v. J.B. Parson Co., 127 Idaho 937, 908 P.2d 1244 (1996).

Interpretation.

The two-step process to determine permanent physical impairment announced in Mapusaga v. Red Lion Riverside Inn , 113 Idaho 842, 748 P.2d 1372 (1987) did not correctly interpret the 1981 amendment to subsection (2) of this section. To this extent Mapusaga and Garcia v. J. R. Simplot Co. , 115 Idaho 966, 772 P.2d 173 (1989) is overruled. Archer v. Bonners Ferry Datsun, 117 Idaho 166, 786 P.2d 557 (1990).

Legislative Intent.

Since the statutory definitions of “permanent physical impairment” under this section “permanent impairment” under§ 72-422 and “permanent disability” under§ 72-423 were originally enacted simultaneously by the legislature, it can be concluded that the legislature intended that they define three different, but related, classifications. Curtis v. Shoshone County Sheriff’s Office, 102 Idaho 300, 629 P.2d 696 (1981).

Liability of Fund.

This section is phrased in the disjunctive, and not in the conjunctive, and if either condition exists, i.e., total permanent disability occasioned by the combined effects of both the preexisting impairment and the subsequent injury, or if the facts disclose aggravation and acceleration of the preexisting impairment by the industrial accident, then the liability of industrial special indemnity fund arises. Sines v. Appel, 103 Idaho 9, 644 P.2d 331 (1982).

An employee with a pre-existing permanent physical impairment, regardless of whether this injury came about as a result of a work-related accident or nonwork related accident, is entitled to recover from the industrial special indemnity fund; thus, the industrial special indemnity fund is not entitled to the defense contained in subsection (1) of§ 72-208. Mapusaga v. Red Lion Riverside Inn, 113 Idaho 842, 748 P.2d 1372 (1987), overruled on other grounds, Archer v. Bonners Ferry Datsun, 117 Idaho 166, 786 P.2d 557 (1990).

Commission’s determination that claimant failed to establish prima facie that he was totally and permanently disabled under the odd-lot doctrine so as to render the industrial special indemnity fund liable for workers’ compensation benefits was supported by substantial and competent evidence where claimant himself stated that he did not believe that the vocational counselors were attempting to find him specific employment, and where the records supported the conclusion that claimant did not attempt any other types of employment, that efforts to find such employment would not be futile, that the vocational counselors’ testimony was vague and their efforts to find employment for the claimant were unmotivated and minimal at best and that little weight should be given to their conclusions, and although claimant did have a significant disability, with his experience, education, training and physical abilities, he was employable. Lethrud v. State, Indus. Special Indem. Fund, 126 Idaho 560, 887 P.2d 1067 (1994).

Special indemnity fund was not liable to the claimant pursuant to subsection (1) of this section, as the claimant did not show her pre-existing condition was aggravated and accelerated by a subsequent injury or occupational disease; rather, the most the claimant showed was a pre-existing impairment that grew worse over time, which was not covered under the statute. Lopez v. State, 136 Idaho 174, 30 P.3d 952 (2001).

The elements that a claimant must prove to establish the ISIF’s liability under this section are: (1) the claimant suffered from a pre-existing impairment; (2) the pre-existing impairment was manifest; (3) the pre-existing impairment was a subjective hindrance to employment; and (4) the combined effects of the pre-existing impairment and the subsequent injury or occupational disease resulted in total and permanent disability, or the subsequent injury or occupational disease aggravated and accelerated the pre-existing impairment to cause total and permanent disability. Aguilar v. State, 164 Idaho 893, 436 P.3d 1242 (2019).

The Idaho industrial commission (commission) properly determined an employee’s disability at the time of a hearing, because the commission (1) considered the evidence presented at the time of the hearing, and (2) understood the employee’s psychological impairment was not a basis for statutory liability. Smith v. State, — Idaho —, 443 P.3d 178 (2019).

Manifestation of Injury.

Where worker, after work related accident which affected his right hip, had a later injury to his left hip, shoulder, and back due to arthritis and spondylolisthesis, the industrial special indemnity fund (ISIF) could not be liable to worker even if worker were determined to be totally and permanently disabled, based in part, on the impairment of his left hip, his shoulders, and his back since worker’s asymptomatic arthritis and spondylolisthesis had not manifested themselves at the time of the injury to his right hip; although these underlying conditions were in existence, there was no evidence that either worker or employer were aware of the conditions. Horton v. Garrett Freightlines, 115 Idaho 912, 772 P.2d 119 (1989) (prior to 1981 amendment).

Nonmedical Factors.

It was not error for the commission to conclude that a claimant’s physical appearance and history of excessive alcohol consumption constituted pertinent nonmedical factors under§§ 72-425 and 72-430, rather than physical impairments under either this section or§ 72-406, where the industrial commission found that claimant’s physical appearance and history of excessive alcohol consumption did not hinder him in his earning capacity prior to the accident, where, since he was a teenager, claimant had functioned in the manual labor market without suffering any loss of potential earning capacity, and where claimant’s physical appearance and history of excessive alcohol consumption had not served as a hindrance in that job market. Roberts v. Asgrow Seed Co., 116 Idaho 209, 775 P.2d 101 (1989).

Odd-lot Doctrine.

Where a claimant was a 48-year-old male with a ninth-grade education whose vocational training was confined solely to heavy manual labor which he could no longer perform as a result of back injuries, and where he lived in a small mountain community where opportunities for light work were limited, the claimant fell within the “odd-lot” category of claimants as a matter of law, and the burden was on the industrial special indemnity fund to show that some kind of suitable work was regularly and continuously available to the claimant. Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 565 P.2d 1360 (1977).

Where a claimant whose injury in the course of his employment aggravated an existing injury to his back had the equivalent of a twelfth-grade education, was in his mid-forties, had always done heavy labor, was unable to do such labor since the accident and consequently had not found permanent employment, and where the evidence indicated that there was no stable labor market for the type of work which the claimant could perform, the claimant had made out a prima facie case that he should be placed in the odd-lot category. Francis v. Amalgamated Sugar Co., 98 Idaho 407, 565 P.2d 1364 (1977).

Where worker suffered a back injury and had had two prior work-related back injuries, industrial commission correctly concluded that worker had not sustained the burden of proving that he fell in the odd-lot category; worker failed to establish the prima facie case of odd-lot status which was to prove the unavailability of suitable work, and there was evidence in the record that there was employment available for worker that he was capable of performing. Huerta v. School Dist. # 431, 116 Idaho 43, 773 P.2d 1130 (1989).

Employee sustained his burden of proving that while he was physically able to perform some work, he was so handicapped that he would not be employed regularly in any well-known branch of the labor market absent a business boom, the sympathy of a particular employer or friends, temporary good luck, or a superhuman effort on his part; this is the formulation of “odd-lot” worker. Dumaw v. J.L. Norton Logging, 118 Idaho 150, 795 P.2d 312 (1990). Where estimates as to the portion of the jobs employee could have performed before his accident that he was precluded from performing after the accident ranged from 20 percent to 80 percent, the employee was not an “odd-lot” worker as a matter of law. Dumaw v. J.L. Norton Logging, 118 Idaho 150, 795 P.2d 312 (1990).

There are three methods by which the employee may prove a prima facie case of “odd-lot” status: (1) by showing what other types of employment the employee has attempted, (2) by showing that the employee, or vocational counselors, employment agencies, or the Job Service on behalf of the employee, have searched for other work for the employee, and that other work was not available, or (3) by showing that any efforts of the employee to find suitable employment would have been futile. Dumaw v. J.L. Norton Logging, 118 Idaho 150, 795 P.2d 312 (1990).

There was substantial and competent evidence to support the industrial commission’s findings that an employee did not establish a prima facie case that he was an odd-lot worker. Nelson v. David L. Hill Logging, 124 Idaho 855, 865 P.2d 946 (1993).

Where claimant sought permanent disability under the odd-lot status and there was conflict between testimony of claimant’s vocational counselor that claimant was not capable of performing any job and the testimony of company’s vocational expert that claimant was suitable for several types of jobs, since commission found the testimony of company’s vocational expert to be more credible and persuasive, claimant’s claim was denied and claimant’s argument that company expert’s evaluation should not be persuasive because there are no specific jobs available in the categories for which she found him to be qualified was without merit, for it has never been held that unless a prima facie case of odd-lot disability is established, an employer or ISIF must prove that there is a specific job in existence in order to defeat a claim for total or permanent disability. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

Where claimant sought compensation for total and permanent disability under the definition of odd-lot worker and the evidence of claimant’s vocational expert was that claimant was not capable of performing any type of job, but company’s expert was of the opinion that even with claimant’s partial disability there were still jobs he could perform, the questions of whether claimant was an odd-lot worker became a question of fact for the commission to decide. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

Where claimant for total disability failed to show that he had attempted other types of employment, that he did little to find work after leaving company, met with his vocational counselor only once, inquired about only a few jobs, and never sought employment in the area, and there was a conflict in the evidence about whether attempts to find employment would have been futile, he failed to establish odd-lot worker status. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

An employee may prove total disability under the odd-lot worker doctrine in one of three ways: 1. by showing that he has attempted other types of employment without success; 2. by showing that he or vocational counselors or employment agencies on his or her behalf have searched for other work and other work is not available; 3. by showing that any efforts to find suitable employment would be futile. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

The burden of proving a prima facie case of odd-lot status is on the claimant; however, where a dispute exists as to the extent of disability, the type of work the claimant is capable of performing, and the effort made to find suitable employment, whether the claimant is odd-lot status is a factual determination within the discretion of the commission. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997). A claimant may establish a prima facie case of odd-lot disability status as a matter of law only if the evidence is undisputed and is reasonably susceptible to only one interpretation. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

Where a claimant demonstrates that he fits within the definition of an odd-lot worker he has proven total and permanent disability. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

Given that the employee was determined to be additionally impaired due to thigh atrophy, as well as the temporal proximity of the additional restrictions of the most recent accident, it was reasonable to find that the most recent accident was the source of the additional impairment and to conclude that the most recent accident combined with the previous conditions to place the employee within the odd lot classification. Fowble v. Snoline Express, Inc., 146 Idaho 70, 190 P.3d 889 (2008).

Where claimant had been working prior to his last accident and, but for that last accident, he would have continued to be employable, the commission was correct in finding that the claimant was totally and permanently disabled solely by the final injury, pursuant to the odd-lot doctrine, and that it was the final injury which combined with his age and skills to render him unemployable. Stoddard v. Hagadone Corp., 147 Idaho 186, 207 P.3d 162 (2009).

Idaho industrial commission properly held that the Idaho industrial special indemnity fund was not liable for an employee’s permanent total disability benefits under subsection (1), because the employer failed to prove that the employee’s last accident by itself did not render the employee totally and permanently disabled under the odd-lot doctrine. Tarbet v. J.R. Simplot Co., 151 Idaho 755, 264 P.3d 394 (2011).

A claimant can establish total, permanent disability by showing his or her medical impairment, together with all nonmedical factors, total 100 percent disability or by showing that he or she fits within the definition of an odd-lot worker. An “odd-lot worker” is one who, as a result of the injury, is impaired to an extent that his or her ability to perform services is so limited in quality, quantity, or dependability that no reasonable market for his or her services exists. Aguilar v. State, 164 Idaho 893, 436 P.3d 1242 (2019).

Open Claim for Previous Injury.

An impairment, the claim for benefits on which is an open, unresolved, and viable claim at the time of a subsequent injury, and which had not reached medical stability at the time of the subsequent injury, does not constitute a preexisting injury under the worker’s compensation statutes. Smith v. J.B. Parson Co., 127 Idaho 937, 908 P.2d 1244 (1996).

Permanent Physical Impairment.

“Permanent physical impairment” is any permanent condition which reasonably could constitute a hindrance or obstacle to obtaining employment or reemployment and such hindrance would exist if the preexisting permanent condition would reasonably cause a potential employer to be reluctant to hire a person because of concerns that the person’s preexisting condition would make 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; however, actual hindrance to one’s attempts at obtaining employment is not required. Curtis v. Shoshone County Sheriff’s Office, 102 Idaho 300, 629 P.2d 696 (1981). While the claimant’s attitude toward the condition is some evidence whether it was a hindrance, the claimant’s attitude does not necessarily play a decisive role in determining whether a “permanent physical impairment” exists under subsection (2) of this section. Archer v. Bonners Ferry Datsun, 117 Idaho 166, 786 P.2d 557 (1990).

In determining whether a “permanent physical impairment” exists under this section, evidence of the claimant’s attitude toward the preexisting condition, the claimant’s medical condition before and after the injury or disease for which compensation is sought, nonmedical factors concerning the claimant, as well as expert opinions and other evidence concerning the effect of the preexisting condition on the claimant’s employability will all be admissible. No longer will the result turn merely on the claimant’s attitude toward the condition and expert opinion concerning whether a reasonable employer would consider the claimant’s condition to make it more likely that any subsequent injury would make the claimant totally and permanently disabled; the result now will be determined by the commission’s weighing of the evidence presented on the question of whether or not the preexisting condition constituted a hindrance or obstacle to employment for the particular claimant. Archer v. Bonners Ferry Datsun, 117 Idaho 166, 786 P.2d 557 (1990).

In order to establish industrial special indemnity fund (ISIF) liability under this section, a claimant must prove that, prior to incurring an injury or occupational disease, he was suffering from a permanent physical impairment as defined in§ 72-422, with the further requirement under subsection (2) of this section, that the impairment be of a seriousness to hinder or present an obstacle to claimant obtaining employment or re-employment. Langley v. State, Indus. Special Indem. Fund, 126 Idaho 781, 890 P.2d 732 (1995).

Total and permanent disability may be proven either by showing that the claimant’s permanent impairment, together with nonmedical factors, totals 100% or by showing that the claimant fits within the definition of an odd-lot worker. The odd-lot category is for those workers who are so injured that they can perform no services other than those that are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. Christensen v. S.L. Start & Assocs., 147 Idaho 289, 207 P.3d 1020 (2009).

— Fund Not Liable.

Where there was substantial and competent evidence to support the industrial commission’s finding that claimant was totally and permanently disabled without any contribution from a preexisting physical impairment, even if claimant had a preexisting learning disability, the industrial special indemnity fund (ISIF) was not liable for any portion of claimant’s disability. Selzler v. Industrial Special Indem. Fund, 124 Idaho 144, 857 P.2d 623 (1993).

The claimant was not entitled to benefits from the defendant indemnity fund where he failed to establish that but for his left eye and right arm impairments he would not have been totally and permanently disabled by his low-back injury. Eckhart v. State, Indus. Special Indem. Fund, 133 Idaho 260, 985 P.2d 685 (1999).

— Progressive Condition.

The testimony of two doctors constituted substantial and competent evidence supporting the industrial commission’s determination that claimant’s total and permanent disability resulted solely from a 2009 accident. Thus, claimant did not successfully show that a pre-existing impairment combined with his 2009 injury to cause his total permanent disability, relieving the ISIF of any liability. Andrews v. State, 162 Idaho 156, 395 P.3d 375 (2017). — Progressive Condition.

Worker’s ataxia was a permanent physical impairment which triggered the liability of the industrial special indemnity fund (ISIF) despite ataxia being a progressive condition since subsections (1) and (2) of this section do not mention progressive or nonprogressive conditions. Colpaert v. Larson’s, Inc., 115 Idaho 825, 771 P.2d 46 (1989).

— Standard.

The proper standard for the industrial commission to apply in cases determining whether a claimant had a preexisting permanent physical impairment constituting a hindrance or obstacle to employment is an objective standard which determines whether the condition reasonably could constitute a hindrance or obstacle to obtaining employment or reemployment, as opposed to a showing of actual hindrance. Shea v. Bader, 102 Idaho 697, 638 P.2d 894 (1981) (decision prior to 1978 and 1981 amendments).

A party asserting that the industrial special indemnity fund (ISIF) should be apportioned liability under this section, bears the burden of proving that an employee was suffering from a permanent physical impairment; the four elements of a prima facie case for apportioning liability for total and permanent disability are (1) whether there was a preexisting impairment, (2) whether the impairment was manifest, (3) whether the impairment was a subjective hindrance, and (4) whether the impairment in any way combines in causing total and permanent disability. Wagar v. ASARCO, Inc., 127 Idaho 928, 908 P.2d 1235 (1996).

While a preexisting permanent physical impairment must constitute a hindrance or obstacle to obtaining employment or re-employment in order to be apportionable to the industrial special indemnity fund in a 100% disability case as provided for under this section, it need not be a hindrance or obstacle to obtaining employment or re-employment to constitute an apportionable preexisting physical impairment in cases involving less than total disability, as provided for under§ 72-406(1). Campbell v. Key Millwork & Cabinet Co., 116 Idaho 609, 778 P.2d 731 (1989).

Preexisting Injury and Apportionment.

Where claimant’s consolidated claims encompassed two independent work-related injuries caused by two separate accidents at different places of employment, and two non-work-related conditions for which compensation was sought, the industrial commission erred in apportioning liability based upon the impact of an injury which was not “preexisting” within the meaning of§ 72-332. Smith v. J.B. Parson Co., 127 Idaho 937, 908 P.2d 1244 (1996).

Preexisting Permanent Physical Impairment.

Where a claimant for disability compensation had previously been injured prior to taking the employment which caused the injury for which he was seeking compensation, such preexisting condition need not have actually hindered his efforts to obtain employment in the past in order to constitute a preexisting “permanent physical impairment” under subsection (2) of this section since “permanent physical impairment” is based on the effect the condition is likely or reasonably anticipated to have on obtaining employment. Gugelman v. Pressure Treated Timber Co., 102 Idaho 356, 630 P.2d 148 (1981).

Where claimant’s preexisting arthritic condition, which was subsequently aggravated by a work-related accident, was latent and asymptomatic, and thus not a hindrance to employment or reemployment under subsection (2) of this section, the industrial special indemnity fund (ISIF) was not liable for any disability resulting from the preexisting condition. Jones v. State, Indus. Special Indem. Fund, 104 Idaho 337, 659 P.2d 91 (1983). Where an accident caused a flare-up of claimant’s preexisting condition of rheumatoid arthritis and the aggravation of this condition caused him to become totally and permanently disabled, the claimant was entitled to permanent total disability income benefits from the industrial special indemnity fund. The industrial special indemnity fund’s obligation to the claimant was reduced by the permanent impairment and disability caused by the accidental injury. Waltman v. Associated Food Stores, Inc., 109 Idaho 273, 707 P.2d 384 (1985).

Where the claimant had a permanent partial impairment of 40% in the form of psychogenic pain syndrome, caused by the effects of the claimant’s injury as it acted upon her preexisting personality disorder, the claimant did not have a preexisting permanent physical impairment as that term has been interpreted under this section. Bruce v. Clear Springs Trout Farm, 109 Idaho 311, 707 P.2d 422 (1985).

While a preexisting permanent physical impairment must constitute a hindrance or obstacle to obtaining employment or re-employment in order to be apportionable to the industrial special indemnity fund in a 100% disability case as provided for under this section, it need not be a hindrance or obstacle to obtaining employment or re-employment to constitute an apportionable preexisting physical impairment in cases involving less than total disability, as provided for under§ 72-406(1). Campbell v. Key Millwork & Cabinet Co., 116 Idaho 609, 778 P.2d 731 (1989).

Where the industrial commission found that claimant’s later employment by department of parks was essentially the equivalent of work provided by a sympathetic employer or friend and this conclusion was supported by the record, the finding that claimant was odd-lot totally permanently disabled prior to her most recent injury and the total permanent disability did not result from combined effects was affirmed. Bybee v. State, Indus. Special Indemnity Fund, 129 Idaho 76, 921 P.2d 1200 (1996).

Where claimant suffered a series of injuries, and employer was held responsible for the portion of an earlier injury that was caused by industrial accident, the claim for which was resolved before apportionment was determined and before a classification of “preexisting impairment” could be made, but that injury was medically stable before a subsequent injury was incurred, the industrial commission was able to make a determination that the earlier injury was ultimately preexisting. Quincy v. Quincy, 136 Idaho 1, 27 P.3d 410 (2001).

Where claimant was totally and permanently disabled prior to her 2002 injuries, those injuries could not increase her permanent disability, and no additional disability could be apportioned to those injuries under this section. Christensen v. S.L. Start & Assocs., 147 Idaho 289, 207 P.3d 1020 (2009).

Preexisting Physical Impairment.

A preexisting physical impairment within the meaning of subsection (2) of this section is any condition which reasonably could constitute a hindrance or obstacle to employment or reemployment when all known facts are or could reasonably be disclosed to the employer. Royce v. Southwest Pipe, 103 Idaho 290, 647 P.2d 746 (1982).

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. Royce v. Southwest Pipe, 103 Idaho 290, 647 P.2d 746 (1982). Where a colloid cyst was undoubtedly present in the claimant’s brain prior to his accident, but the cyst was asymptomatic prior to the accident and neither the claimant nor anyone else had any indication that the cyst existed, nor did the cyst adversely affect the claimant prior to the accident, and the testimony of doctors in the compensation action indicated that while the accident did not cause the occurrence of the cyst, it was common for such lesions to become symptomatic incident to head trauma and that the head trauma sustained by the claimant in the accident triggered the onset of clinical symptoms, the claimant’s condition was not a preexisting physical impairment within the meaning of this section, and consequently, the employer and its surety were liable for the full amount of the claimant’s disability benefits. Royce v. Southwest Pipe, 103 Idaho 290, 647 P.2d 746 (1982).

A preexisting physical impairment within the meaning of subsection (2) of this section is any condition which reasonably could constitute a hindrance or obstacle to employment, when all facts were disclosed, or reasonably could be disclosed, to the employer; actual hindrance to employment is not a prerequisite to a finding of a preexisting physical impairment and an objective test must be utilized. Carey v. Clearwater County Rd. Dep’t, 107 Idaho 109, 686 P.2d 54 (1984).

“Permanent impairment,” as defined in§ 72-422 and incorporated by reference in this section as “permanent physical impairment” is confined to physical disabilities; thus, a preexisting personality disorder, consisting of hypersensitivity to potential rejection, unwillingness to enter relationships, depression, humiliation, anxiety, anger, and impaired ability to function socially, but manifesting no bodily symptoms, was not a permanent physical impairment within the meaning of this section and§ 72-422, and the trial court erred in characterizing claimant’s personality disorder as a preexisting physical impairment. Hartley v. Miller-Stephan, 107 Idaho 688, 692 P.2d 332 (1984).

The findings of the industrial commission on the issue of subjective hindrance should have focused on whether or not claimant’s preexisting condition constituted a hindrance or obstacle to employment for the particular claimant. Dumaw v. J.L. Norton Logging, 118 Idaho 150, 795 P.2d 312 (1990).

The basic definition of permanent impairment is “any anatomic or functional abnormality or loss” and claimant’s brachysyndactylism was a preexisting physical impairment with this definition. Hoye v. Daw Forest Prods., Inc., 125 Idaho 582, 873 P.2d 836 (1994).

An impairment, the claim for benefits on which is an open, unresolved, and viable claim at the time of a subsequent injury, and which had not reached medical stability at the time of the subsequent injury, does not constitute a preexisting injury under the worker’s compensation statutes. Smith v. J.B. Parson Co., 127 Idaho 937, 908 P.2d 1244 (1996).

Industrial commission’s conclusion that the claimant’s injury was preexisting and that the claimant was not entitled to relief from the industrial special indemnity fund, was supported by substantial, competent, though conflicting evidence. Redman v. State, 138 Idaho 915, 71 P.3d 1062 (2003).

Psychological Disorder.

Industrial commission did not err in apportioning claimant employee’s disability between the employer and the industrial special indemnity fund because the employee’s permanent partial disability (PPD) ratings for prior injuries were adequately taken into account by using their associated pre-existing physical impairment (PPI) ratings. Clark v. Idaho Truss, 142 Idaho 404, 128 P.3d 941 (2006). Psychological Disorder.

Even though the claimant’s personality disorder lacked physical manifestations, the industrial commission was correct in including the psychological disorder as a personal circumstance and allocating responsibility between the special indemnity fund and the employer/surety. Mapusaga v. Red Lion Riverside Inn, 113 Idaho 842, 748 P.2d 1372 (1987), overruled on other grounds, Archer v. Bonners Ferry Datsun, 117 Idaho 166, 786 P.2d 557 (1990).

Purpose.

The purpose of second injury funds such as the special industrial indemnity fund is to encourage employers to hire partially incapacitated persons and to encourage partially incapacitated workers to seek employment. Curtis v. Shoshone County Sheriff’s Office, 102 Idaho 300, 629 P.2d 696 (1981) (decision prior to 1978 and 1981 amendments).

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. Royce v. Southwest Pipe, 103 Idaho 290, 647 P.2d 746 (1982).

An examination of the policy behind the creation of the industrial special indemnity fund indicates that the employer’s liability for permanent partial impairment should not increase, simply because a claimant is totally and permanently disabled through application of the odd-lot doctrine because of injuries unrelated to the industrial accident; accordingly, the escalator provision of§ 72-408(1) and (2) did not apply to the employer’s share of liability in a case where the employee suffered a 50 percent partial disability due to his injury, but was found to be totally and permanently disabled under the odd-lot doctrine. Carey v. Clearwater County Rd. Dep’t, 107 Idaho 109, 686 P.2d 54 (1984).

Requirement of Medical Diagnosis.

Substantial and competent evidence supported the commission’s finding of fact that worker’s condition was “manifest” prior to her employment despite the absence of a medical evaluation of the condition after maximal medical rehabilitation had been achieved; the concept of “permanent physical impairment” does not mandate the hypertechnical requirement of a definitive medical diagnosis of a claimant’s preexisting physical impairment. Colpaert v. Larson’s, Inc., 115 Idaho 825, 771 P.2d 46 (1989).

Settlement.

Employee’s claim against industrial special indemnity fund for benefits attributable to a pre-existing physical impairment was not precluded by an earlier settlement agreement between employee and his employer. Tagg v. State, Indus. Special Indem. Fund, 123 Idaho 95, 844 P.2d 1345 (1993).

Stability of Injury.

Total Permanent Disability.

Stability is a key factor to consider when determining if a preexisting impairment exists: Where a claimant’s previous injury becomes medically stable before he suffers the next injury, the industrial commission can correctly conclude that the first injury was a preexisting impairment; claims may need to be resolved individually to a certain extent before liability as a whole can be apportioned under this section. Quincy v. Quincy, 136 Idaho 1, 27 P.3d 410 (2001). Total Permanent Disability.

If the commission finds that the claimant has met his or her burden of proving 100% disability via the claimant’s medical impairment and pertinent nonmedical facts, total and permanent disability has been established. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

Where commission found that claimant suffered from a disability of 85% of the whole person and the finding was supported by competent evidence and not disputed by claimant, claimant failed to establish that he was totally and permanently disabled since his disability rating was less than 100%. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

Waiver of Rights.

Until the industrial special indemnity fund’s (ISIF) liability is established under this section, an agreement waiving an employee’s rights to claims against ISIF is violative of§ 72-318(2). Wernecke v. St. Maries Joint Sch. Dist. # 401, 147 Idaho 277, 207 P.3d 1008 (2009).

Decisions Under Prior Law

Aggravation of Preexisting Condition.

Where an injury resulted partly from accident and partly from a preexisting disease, it is compensable if the accident hastened or accelerated the ultimate result, and it was immaterial that the claimant would, even if the accident had not occurred, have become totally disabled by the disease eventually. Hamlin v. University of Idaho, 61 Idaho 570, 104 P.2d 625 (1940).

Arm or Hand.

Appeal.

Claimant, who was paid compensation by his employer for partial permanent disability as result of loss of use of right arm and hand in an industrial accident, was entitled to recover for total permanent disability from second injury fund due to prior loss of use of left hand. Anderson v. Potlatch Forests, Inc., 77 Idaho 263, 291 P.2d 859 (1955). Appeal.

In proceeding for compensation based on occupational disease finding of board apportioning disability to the various factors involved was binding on appeal where findings were supported by substantial competent evidence. Kernaghan v. Sunshine Mining Co., 73 Idaho 106, 245 P.2d 806 (1952).

Award.

The supreme court ordered an award in favor of claimant for the amount of compensation to which he was entitled under the statutes in proceeding brought where total loss of vision had been sustained as a result of an accident arising out of and in the course of employment, the court holding the evidence did not sustain a finding that such workman was not totally and permanently disabled. Crawford v. Nielson, 78 Idaho 526, 307 P.2d 229 (1957).

Benefits Payable by Employer.

An employee who, prior to his injury was totally blind in his right eye and had 20% vision in his left eye corrected to 85% with glasses was, upon becoming wholly blind as the result of an industrial accident, entitled to total disability benefits of $45.00 a week for 400 weeks with 120 weeks at $30.00 a week to be paid by the employer and the remainder from special indemnity fund, the employer’s liability for loss of the sight of the left eye not being reduced by the fact that his vision prior to the accident, uncorrected by glasses was only 20%. Cox v. Intermountain Lumber Co., 92 Idaho 197, 439 P.2d 931 (1968).

Blindness.

When an employee, who was industrially blind in his right eye, received an injury by accident which resulted in the loss of his left eye, he was entitled to recover compensation from the special indemnity fund. McDonald v. State Treasurer, 52 Idaho 535, 16 P.2d 988 (1932).

The term “industrially blind” was not defined in our law and its use was depreciated. No particular percentage of normal vision could or should have been used as a standard to constitute industrial blindness but each case had to depend upon its particular facts and circumstances. Kelley v. Prouty, 54 Idaho 225, 30 P.2d 769 (1934).

Use of corrective glasses could be considered in determining disability for work, but not in determining specific indemnity under former§ 72-313. Kelley v. Prouty, 54 Idaho 225, 30 P.2d 769 (1934).

Burden of Proof.

The burden of proof was upon claimant seeking to recover under occupational disease statute to show compensatory disablement. Hill v. Sullivan Mining Co., 68 Idaho 574, 201 P.2d 93 (1948).

Evidence.

Board in considering whether above surface work involved claimant in hazardous exposure to silica dust was entitled to admit evidence by employer of sampling of air where claimant worked, if conditions at the time of sampling were similar to conditions at the time of claimant’s work. Kernaghan v. Sunshine Mining Co., 73 Idaho 106, 245 P.2d 806 (1952). Board in determining whether claimant had been hazardously exposed to silica dust did not err in refusing to admit exhibits of minutes of union-management safety committee concerning dusty conditions in locations where claimant had worked, since exhibits constituted hearsay evidence. Kernaghan v. Sunshine Mining Co., 73 Idaho 106, 245 P.2d 806 (1952).

Claimant’s condition of silicosis, grade 2 was not aggravated by exposure to silica dust where evidence showed that silicosis, grade 2 had not progressed as result of exposure. Kernaghan v. Sunshine Mining Co., 73 Idaho 106, 245 P.2d 806 (1952).

Notice of Claim.

Claim against second injury fund was timely where letter mailed to board seeking additional compensation was received within four years of date of accident though amended petition was not filed within four year period, since petition reverted back to date of filing of original letter. Anderson v. Potlatch Forests, Inc., 77 Idaho 263, 291 P.2d 859 (1955).

Parties to Proceed.

In proceeding involving the second injury fund the state treasurer was not a necessary party since he merely made disbursements from the funds, and therefore it was not necessary to give notice to the state treasurer of injury upon which claim against the fund was based. Anderson v. Potlatch Forests, Inc., 77 Idaho 263, 291 P.2d 859 (1955).

Silicosis.

Where board made a finding that silicosis was a contributing factor along with other factors to claimant’s total disability, an award of 25% of total disability, which represented the proportion of silicosis to the other factors causing total disability, was proper rather than 100% total disability as contended for by claimant. Peterson v. Sunset Minerals, Inc., 75 Idaho 354, 272 P.2d 692 (1954).

Statute of Limitations.

Statute of limitations relative to giving of notice and making claims did not apply to proceeding to recover compensation from second injury fund, since payments were not made from second injury fund until after employer had completed payment of compensation. Anderson v. Potlatch Forests, Inc., 77 Idaho 263, 291 P.2d 859 (1955).

Total Disability.

A workman having lost the sight of both eyes was not ipso facto totally and permanently disabled. Crawford v. Nielson, 78 Idaho 526, 307 P.2d 229 (1957).

Cross References.

Department of administration,§ 67-5701 et seq.

Effective Dates.

Section 2 of S.L. 1997, ch. 303, as amended by § 1 of S.L. 1999, ch. 197, effective July 1, 1999, as amended by S.L. 2004, ch. 100, § 1, and as amended by S.L. 2008, ch. 102, § 1, read: “Section 1 of this act shall be in full force and effect on and after July 1, 1997.”

Cross References.

Dependency limitations,§ 72-102.

Dependency, time of,§ 72-411.

Dependency, time of, death benefits from occupational disease,§ 72-440.

Parents.

Parents received compensation only if dependent on the child injured or killed. Stample v. Idaho Power Co., 92 Idaho 763, 450 P.2d 610 (1969).

“Odd-Lot” Worker.

Employee sustained his burden of proving that while he was physically able to perform some work, he was so handicapped that he would not be employed regularly in any well-known branch of the labor market absent a business boom, the sympathy of a particular employer or friends, temporary good luck, or a superhuman effort on his part; this is the formulation of “odd-lot” worker. Dumaw v. J.L. Norton Logging, 118 Idaho 150, 795 P.2d 312 (1990).

Where estimates as to the portion of the jobs employee could have performed before his accident that he was precluded from performing after the accident ranged from 20 percent to 80 percent, the employee was not an “odd-lot” worker as a matter of law. Dumaw v. J.L. Norton Logging, 118 Idaho 150, 795 P.2d 312 (1990).

Where employee satisfied his burden of showing a prima facie case of being an “odd-lot” worker, the burden then shifted to the employer and its surety to demonstrate the availability of regular employment within the employee’s capabilities. Dumaw v. J.L. Norton Logging, 118 Idaho 150, 795 P.2d 312 (1990).

There are three methods by which the employee may prove a prima facie case of “odd-lot” status: (1) by showing what other types of employment the employee has attempted, (2) by showing that the employee, or vocational counselors, employment agencies, or the Job Service on behalf of the employee, have searched for other work for the employee, and that other work was not available, or (3) by showing that any efforts of the employee to find suitable employment would have been futile. Dumaw v. J.L. Norton Logging, 118 Idaho 150, 795 P.2d 312 (1990).

Refusal to Cross Picket Line.

Suitable Work.

Claimant was not a partially disabled employee, for purposes of this section, at the time he refused to cross a picket line and return to work where his doctor was of the opinion that claimant didn’t have any permanent disability and had released him to work without any limitations and where claimant had been working for approximately three months before the strike was called; therefore, claimant was not precluded from receiving benefits for a subsequent finding of permanent partial disability because he refused to cross the picket line, which refusal resulted in his permanent replacement. Baker v. Louisiana Pac. Corp., 123 Idaho 799, 853 P.2d 544 (1993). Suitable Work.

The industrial commission did not commit error when it placed the burden on employer to demonstrate that, after claimant moved to Yreka for surgery and treatment, a reasonable offer for employment had been made or that suitable employment was generally available in the market, because, after claimant moved to Yreka, the employer’s offer and procurement of a position at the guard shack in Idaho became unreasonable. Perkins v. Croman, Inc., 134 Idaho 721, 9 P.3d 524 (2000).

Cross References.

Insane person’s compensation paid to guardian,§ 72-226.

Minor employees, lump sum in jurisdiction of courts,§ 72-225.

Modification of award not permitted after commutation,§ 72-719 when payable to trustee,§ 72-405.

Claim Barred.

Claimant could not litigate the issue of apportionment based upon the identical 33% whole person impairment rating he relied upon in entering into the agreement with the state insurance fund and the state hospital for the agreement provided the plaintiff a lump sum award based upon his 33% whole person impairment rating and since he then sought to attribute 13% of his 33% whole person impairment to a pre-existing condition, thereby increasing his whole person impairment rating to 46%, without presenting additional allegations of pre-existing impairment his claim against the industrial special indemnity fund was barred by the doctrine of collateral estoppel. Jackman v. State, Indus. Special Indem. Fund, 129 Idaho 689, 931 P.2d 1207 (1997).

Claimant’s Rights.

Dismissal Without Lump-Sum Payment.

Since the commission has the responsibility to approve lump sum settlement agreements and, in doing so, must determine that the settlement is in the best interest of the parties, it necessarily follows that the commission has jurisdiction to clarify a claimant’s rights under a lump sum settlement agreement that is presented for commission. Williams v. Blue Cross, 151 Idaho 515, 260 P.3d 1186 (2011). Dismissal Without Lump-Sum Payment.

Where plaintiff employee decided not to pursue his workers’ compensation act claim against defendant employer, and stipulated with the employer for a dismissal with prejudice, approval of the stipulation did not implicate§ 72-711 or this section, as there was no lump sum settlement, and a lump sum settlement was not the only way to permanently settle workers’ compensation claims. Emery v. J.R. Simplot Co., 141 Idaho 407, 111 P.3d 92 (2005).

Evidence.

Where the finding of the industrial commission, that no false representation had been made by the surety or the employer to induce the claimant to enter into the lump sum settlement agreement, was clearly supported by the evidence, the commissioner did not err in refusing to set aside the lump sum settlement agreement. Vogt v. Western Gen. Dairies, Inc., 110 Idaho 782, 718 P.2d 1220 (1986).

Final Decision.

A lump sum settlement agreement constitutes a final decision of the industrial commission which is subject to a motion for reconsideration or rehearing under the provisions of§ 72-718. Davidson v. H.H. Keim Co., 110 Idaho 758, 718 P.2d 1196 (1986).

Decisions Under Prior Law

Discretion of Board.

Intent of workmen’s compensation act was to safeguard compensation award, and such award in lump sum should have been approved by courts only for strong and urgent reasons. Kaylor v. Callahan Zinc-Lead Co., 43 Idaho 477, 253 P. 132 (1927).

Mere fact that there was sufficient evidence to justify commission or supreme court in arriving at conclusion different from that reached does not show that commission abused its discretion in denying lump sum settlement. Kaylor v. Callahan Zinc-Lead Co., 43 Idaho 477, 253 P. 132 (1927).

The statute made lump sum settlement question in discretion of board, and such discretion was not questioned save in case of abuse. Kaylor v. Callahan Zinc-Lead Co., 43 Idaho 477, 253 P. 132 (1927).

Finality.

A compensation agreement and lump settlement thereon approved by the board became final and conclusive when no appeal from award was made within 30 days and employee could not thereafter attack the award on the ground of fraud. Limprecht v. Bybee, 76 Idaho 293, 281 P.2d 1047 (1955). A “change of condition” was not a sufficient ground for setting aside a lump sum settlement, since the effect of this section and section providing modification of awards and agreements was to make a lump sum settlement final and not subject to review. Fountain v. T.Y. & Jim Hom, 92 Idaho 928, 453 P.2d 577 (1969).

Where surety, employer, and claimant entered into a settlement agreement subsequently approved by the board, and no appeal was taken to the supreme court within 30 days, the agreement had the same force and effect as a final award by the board and could not be set aside absent a showing of fraud. Fountain v. T.Y. & Jim Hom, 92 Idaho 928, 453 P.2d 577 (1969).

Modification.

Provision in compensation agreement that it was subject to modification applied as long as instalments were paid under the agreement, but it did not apply after a lump settlement was made and approved under this section. Limprecht v. Bybee, 76 Idaho 293, 281 P.2d 1047 (1955).

Cross References.

Insane person’s compensation paid to guardian,§ 72-226.

Compiler’s Notes.

The bracketed insertion in the first sentence was added by the compiler to conform to the statutory citation style.

Cross References.

Payment for certain preexisting impairments from industrial special indemnity fund,§ 72-332.

Apportionment of Disability.

Where worker, after work related accident which affected his right hip, had a later injury to his left hip, shoulder, and back due to arthritis and spondylolisthesis, under this section, employer was liable only for the disability resulting from the injury to worker’s right hip; employer was not liable for any disability caused by impairments to the left hip, the two shoulders, or the back even though these impairments were a part of worker’s permanent disability under§§ 72-425 and 72-430. Horton v. Garrett Freightlines, 115 Idaho 912, 772 P.2d 119 (1989).

Apportionment between industrial injuries and preexisting physical impairments under this section does not depend upon the pre-existing condition being a “hindrance or obstacle” to obtaining employment. Campbell v. Key Millwork & Cabinet Co., 116 Idaho 609, 778 P.2d 731 (1989).

The industrial commission’s apportionment under this section must be explained with sufficient rationale to enable the supreme court to review whether the apportionment is supported by substantial and competent evidence. The application of the formula devised in Carey v. Clearwater County Rd. Dep’t , 107 Idaho 109, 686 P.2d 54 (1984), to apportionments under this section does not present substantial competent evidence to justify the apportionment that is made. Reiher v. American Fine Foods, 126 Idaho 58, 878 P.2d 757 (1994).

Decision of the industrial commission mandated an apportionment under the statute as the employee suffered from extensive preexisting injuries as the result of his motorcycle accident from which he never recovered; the commission had evidence to support its finding that the employee’s permanent disability resulting from the industrial accident — inclusive of impairment — was 15%, for which the employer was liable. Seufert v. Larson, 137 Idaho 589, 51 P.3d 403 (2002).

Industrial commission’s apportionment of the employee’s disability was improper where the commission’s apportionment was incorrectly done by mechanically applying the Carey formula. The supreme court stated that the commission needed to provide an analysis as to why disability should have been apportioned in the same ratio as impairment. Henderson v. Mc Cain Foods, Inc., 142 Idaho 559, 130 P.3d 1097 (2006).

In a workers’ compensation case, a remand was necessary because there was no clear indication as to a benefit claimant’s permanent disability in light of the accident and her pre-existing conditions since the Idaho industrial commission failed to articulate both steps in making its apportionment after determining that there was a 5 percent permanent disability. The commission was required to evaluate the claimant’s disability according to the factors in§ 72-430(1), make findings as to her permanent disability in light of all of her physical impairments, including pre-existing conditions, and then apportion the amount of the permanent disability attributable to the claimant’s accident. Page v. McCain Foods, Inc., 145 Idaho 302, 179 P.3d 265 (2008).

Apportioning disability under both§ 72-332(1) and subsection (1) of this section requires two steps. First, the industrial commission must determine the claimant’s disability when considering the pre-existing physical impairment(s) and the subsequent injury, and, second, it must then apportion disability between the injury and the pre-existing impairment(s). Christensen v. S.L. Start & Assocs., 147 Idaho 289, 207 P.3d 1020 (2009).

This section does not apply where there is no disability in excess of impairment, and, thus, the industrial commission is not required to use the two-step analysis set forth in Page v. McCain Foods, Inc. , 145 Idaho 302, 179 P.3d 265 (2008). Davidson v. Riverland Excavating, Inc., 147 Idaho 339, 209 P.3d 636 (2009).

Burden of proof.

A claimant bears the burden of proving disability in excess of his or her impairment rating. Davidson v. Riverland Excavating, Inc., 147 Idaho 339, 209 P.3d 636 (2009).

Nonmedical Factors.

It was not error for the commission to conclude that a claimant’s physical appearance and history of excessive alcohol consumption constituted pertinent nonmedical factors under§§ 72-425 and 72-430, rather than physical impairments under either§ 72-332 or this section, where the industrial commission found that claimant’s physical appearance and history of excessive alcohol consumption did not hinder him in his earning capacity prior to the accident, where, since he was a teenager claimant had functioned in the manual labor market without suffering any loss of potential earning capacity, and where claimant’s physical appearance and history of excessive alcohol consumption had not served as a hindrance in that job market. Roberts v. Asgrow Seed Co., 116 Idaho 209, 775 P.2d 101 (1989). The Carey formula which was adopted by the supreme court in Carey v. Clearwater County Rd. Dep’t , 107 Idaho 109, 686 P.2d 54 (1984), applies in industrial special indemnity fund cases and should not be mechanically applied to all nonmedical apportionment issues; therefore, where the industrial commission applied the Carey formula to apportion employee’s disability caused by nonmedical factors, its decision was vacated. Weygint v. J.R. Simplot Co., 123 Idaho 200, 846 P.2d 202 (1993).

Preexisting Injury or Impairment.

Where the evidence showed that the claimant suffered a heart attack during the course of his employment, but the only evidence presented to the industrial commission in support of its determination that the claimant suffered a permanent partial impairment of 50 percent of the whole person failed to consider a preexisting heart condition, such determination was not supported by the evidence. Johnson v. Amalgamated Sugar Co., 108 Idaho 765, 702 P.2d 803 (1985).

While a preexisting permanent physical impairment must constitute a hindrance or obstacle to obtaining employment or re-employment in order to be apportionable to the industrial special indemnity fund in a 100% disability case as provided for under§ 72-332, it need not be a hindrance or obstacle to obtaining employment or re-employment to constitute an apportionable preexisting physical impairment in cases involving less than total disability, as provided for under this section. Campbell v. Key Millwork & Cabinet Co., 116 Idaho 609, 778 P.2d 731 (1989).

Evidence supported industrial commission’s finding that although claimant was found to have a permanent disability of 30% of the whole person after his second injury, because most of his limitations existed prior to the second injury, the portion of claimant’s disability resulting from the second injury did not exceed the portion of the physical impairment rating of five percent attributable to that injury; the remainder of claimant’s disability rating accrued prior to the 1989 injury, thus insurer was not liable for that portion. Sund v. Gambrel, 127 Idaho 3, 896 P.2d 329 (1995).

Where employee suffered a back injury in an industrial accident and employee had incurred previous back injuries, the commission’s decision not to apportion employee’s permanent disability was nevertheless supported by substantial medical evidence where the first of orthopedic surgeon’s three letters indicated that all of employee’s lower back problems occurred while working for the employer although subsequent letters apportioned a small percentage of the disability to a preexisting condition. Eacret v. Clearwater Forest Indus., 136 Idaho 733, 40 P.3d 91 (2002).

Decisions Under Prior Law

Apportionment of Disability.

Where injuries resulted partly from accident and partly from preexisting weakness or disease, board had to separate result and apportion award accordingly. Hanson v. Independent Sch. Dist. 11-J, 50 Idaho 81, 294 P. 513 (1930).

If the removal of the diseased kidney was not made necessary by reason of the injury the claimant sustained, he was not entitled to an operation and compensation. Cole v. Fruitland Canning Ass’n, 64 Idaho 505, 134 P.2d 603 (1943).

Employee was held entitled to disability award notwithstanding that arthritic condition existing at time of injury would in time totally disable the employee. Zipse v. Schmidt Bros., 66 Idaho 30, 154 P.2d 171 (1944).

Where medical testimony conflicts, it is incumbent on board to find apportionable compensation norm of employee’s disability. Zipse v. Schmidt Bros., 66 Idaho 30, 154 P.2d 171 (1944).

Where claimant on March 30 injured his back and also injured back on November 8 following his return, the second accident only aggravated injury sustained in first accident, hence there was no need for a deduction or apportionment of liability since claim was for one injury. Harris v. Bechtel Corp., 74 Idaho 308, 261 P.2d 818 (1953).

Apportionment of one-half of hospital expenses and all of medical expenses to industrial accidents involving back was proper though claimant was treated for stiffness of back muscle by veterans administration prior to accidents. Harris v. Bechtel Corp., 74 Idaho 308, 261 P.2d 818 (1953).

Where the board had no substantial competent evidence, it was error to find against employer’s surety for 1955 that an exacerbation in 1955 was the result of an accident in that year, rather than as a result of an injury to claimant prior to 1955. Beard v. Post Co., 82 Idaho 38, 348 P.2d 939 (1960).

The apportionment of the liability for temporary total disability and medical and hospital expenses following the second injury as well as specific indemnity for residual partial permanent disability are all subject to apportionment. Lindskog v. Rosebud Mines, Inc., 84 Idaho 160, 369 P.2d 580 (1962).

The cause should have been remanded to the industrial accident board [now industrial commission] with direction to consider evidence as to what apportionment, if any, should have been made between back injuries known to have been sustained in 1958 and recurrence of the situation in 1961 when back pain arose when claimant was lifting a large sack of potatoes since a determination of the question as to whether apportionment should be made is material and necessary to the decision of this case. Andrus v. Boise Fruit & Produce Co., 84 Idaho 245, 371 P.2d 256 (1962).

The industrial accident board [now industrial commission] was authorized and required to find the causes of disability if attributable to more than one factor and to apportion the disability accordingly. This may have required apportionment between an industrial injury and a preexisting injury or infirmity as well as between successive industrial injuries; and such included apportionment of hospital, medical and kindred expenses. Clark v. Brennan Constr. Co., 84 Idaho 384, 372 P.2d 761 (1962). The industrial accident board [now industrial commission], specializing in the hearing of industrial accident cases, had to be presumed by its experience to be able to judge the causative factors in a particular case. The board had to be allowed a degree of latitude in making the apportionment. Clark v. Brennan Constr. Co., 84 Idaho 384, 372 P.2d 761 (1962).

In awarding compensation for back injuries received in 1960 and 1963, failure to apportion compensation to nondisabling back injuries received prior to 1960 was not error where there was no competent evidence that the pre-1960 injuries contributed to the claimant’s disability. Cook v. Roland T. Romrell Co., 90 Idaho 155, 409 P.2d 104 (1965).

Where the board found that a prior injury from which the claimant no longer was suffering disability contributed to the disability resulting from a second injury and that part of the required surgery was due to the first injury, it was proper to apportion both the disability and the medical expenses between the two employers. Dawson v. Hartwick, 91 Idaho 561, 428 P.2d 480 (1967).

The board was authorized and required to apportion the degree and duration of disability between the injury resulting from the accident and that resulting from any preexisting injury or infirmity. Scott v. Aslett Constr. Co., 92 Idaho 834, 452 P.2d 61 (1969), overruled on other grounds, Christensen v. Calico Constr. & Dev. Co., 97 Idaho 327, 543 P.2d 1167 (1975).

Where testimony at hearings indicated there was substantial and competent, although arguably conflicting, evidence to support the finding of the board on apportionment as between injury and preexisting infirmity, court would not review such finding. Scott v. Aslett Constr. Co., 92 Idaho 834, 452 P.2d 61 (1969), overruled on other grounds, Christensen v. Calico Constr. & Dev. Co., 97 Idaho 327, 543 P.2d 1167 (1975).

Arm Injury.

Claimant, who was paid compensation by his employer for partial permanent disability as result of loss of use of right arm and hand in an industrial accident, was entitled to recover for total permanent disability from second injury due to prior loss of use of left hand. Anderson v. Potlatch Forests, Inc., 77 Idaho 263, 291 P.2d 859 (1955).

Compromise Settlement.

Before the industrial accident board [now industrial commission] could approve an agreement for compensation, such agreement had to embrace the provisions of the law, or such provisions would be read into the same. Hanson v. Independent Sch. Dist. 11-J, 57 Idaho 297, 65 P.2d 733 (1937).

The ambit of power of the industrial accident board [now industrial commission] was circumscribed by the statutes respecting the award of compensation, and the board was without authority to award lesser or different compensation than that prescribed by law, and this situation was not changed by virtue of the fact that the employee was suffering at the time he received the injury of a preexisting and progressive disease. Hanson v. Independent Sch. Dist. 11-J, 57 Idaho 297, 65 P.2d 733 (1937).

Constitutionality.

Where employer entered into an agreement for payment of total temporary disability for loss of time and for payment of permanent partial disability for loss of leg such agreement was equivalent to factual finding of the board and was final and conclusive, but it did not bar the board in subsequent modification proceeding from finding total permanent disability or finding a greater degree of permanent partial disability based on changed conditions. Nitkey v. Bunker Hill & Sullivan Mining & Concentrating Co., 73 Idaho 294, 251 P.2d 216 (1952). Constitutionality.

Section providing deductions for preexisting injuries and infirmities was constitutional, and did not violate the constitution with respect to the requirement that every act should embrace but one subject, and that should be expressed in the title. Cole v. Fruitland Canning Ass’n, 64 Idaho 505, 134 P.2d 603 (1934). See Idaho Const., Art. III, § 16.

Death Awards.

The workmen’s compensation law authorizing deductions for preexisting injuries and infirmities in computing compensation, if the degree or duration of disability resulting from the accident was increased, did not apply to an award for death, since the word “disability” as used in the statute did not include “death.” Bishop v. Morrison-Knudsen Co., 64 Idaho 806, 137 P.2d 963 (1943).

Where there was circumstantial evidence that a workman with preexisting heart disease received an electric shock from exposed wires, which precipitated his death, the finding of the board that his death was due one-half to heart disease and one-half to electric shock would not be reversed on appeal. Gjerning v. Potlatch Forests, Inc., 91 Idaho 15, 415 P.2d 301 (1966).

Where a deputy sheriff with preexisting hypertension with atherosclerosis suffered a fatal stroke as a result of physical exertion and emotional strain in performing his duties at the scene of an accident, the board properly apportioned the cause of his death two-thirds to his preexisting condition and one-third to his cerebral “accident.” Hammond v. Kootenai County, 91 Idaho 208, 419 P.2d 209 (1966).

Leg Injury.

Where an employee had a leg injury, for which he was paid compensation, and as a result of such injury, thereafter an amputation was necessary, and where the latter event was the result of accident and injury, payments made before amputation would not be taken into consideration in determining the indemnity for the loss of the leg. Close v. General Constr. Co., 61 Idaho 689, 106 P.2d 1007 (1940).

Medical Expense.

While an order for the employer to furnish medical services and surgery required because of a compensable injury to a claimant who was engaged in full-time employment was proper, notwithstanding an old injury, consideration was required to be given to the old injury in determining what was a reasonable time for the employer’s continuing to furnish such medical services and surgery. Wilson v. Gardner Associated, Inc., 91 Idaho 496, 426 P.2d 567 (1967).

Physical Condition Prior to Injury.

Although laborer may have had injury or preexisting physical weakness which reduced his ability to work below that of normal man, and was thereby more susceptible to injury, yet if he was able to do some work and in course of his employment was injured, he was entitled to compensation. In re Larson, 48 Idaho 136, 279 P. 1087 (1929).

Statute prescribed no standard of fitness, made no distinction between sound and unsound, which being true, compensation was not based on implied warranty of perfect health or immunity from latent or unknown tendencies to disease. In re Larson, 48 Idaho 136, 279 P. 1087 (1929). Finding that aggravation of preexisting disease was not any different or of any greater extent than might have resulted from ordinary physical activity did not justify denial of compensation. Hanson v. Independent Sch. Dist. 11-J, 50 Idaho 81, 294 P. 513 (1930); Strouse v. Hercules Mining Co., 51 Idaho 7, 1 P.2d 203 (1931); Scarborough v. Beardmore, 52 Idaho 180, 12 P.2d 771 (1932); Taylor v. Federal Mining & Smelting Co., 59 Idaho 183, 81 P.2d 728 (1938); Nistad v. Winton Lumber Co., 59 Idaho 533, 85 P.2d 236 (1938); Young v. Herrington, 61 Idaho 183, 99 P.2d 441 (1940); Hamlin v. University of Idaho, 61 Idaho 570, 104 P.2d 625 (1940); Woodbury v. Frank B. Arata Fruit Co., 64 Idaho 227, 130 P.2d 870 (1942).

The fact that the employee’s blood vessels were in a weakened condition as a result of disease would not prevent the award of compensation, if a strain, while working, resulted in a rupture of such vessels, thereby causing hemorrhage. Fealka v. Federal Mining & Smelting Co., 53 Idaho 362, 24 P.2d 325 (1933).

A preexisting faulty condition of the heart of an employee, under the well-known rule so often reiterated by the supreme court of Idaho, would not defeat or prevent compensation, and this was particularly true where the testimony of all of the physicians testifying was reasonably clear, that the accidental injury had a deleterious effect upon a defective heart which perforce led to the conclusion that there was such causal connection as to entitle claimant to compensation. Soran v. McKelvey, 57 Idaho 483, 67 P.2d 906 (1937).

Evidence was sufficient to sustain a finding to the effect that claimant’s condition was aggravated and made worse by reason of the accident, the evidence showing that a miner suffered from sciatic rheumatism after a former injury, but after such injury, he worked at hard manual labor for a number of years until receiving the injury for which compensation was claimed. Taylor v. Federal Mining & Smelting Co., 59 Idaho 183, 81 P.2d 728 (1938).

Nothing was contained in the workmen’s compensation law that limited its provisions to workmen who, previous to injury, were in sound condition and perfect health. Miller v. Bingham County, 79 Idaho 87, 310 P.2d 1089 (1957).

If liability was to stem from an increase of a preexisting injury or infirmity it had to be established by substantial evidence that an unexpected, untoward event or circumstance produced such exacerbation. Beard v. Post Co., 82 Idaho 38, 348 P.2d 939 (1960).

Section providing deductions for preexisting injuries and infirmities was not applicable to a case where the applicant, prior to her injury, had an operation for removal of a protruding disc, from which she made a satisfactory recovery. Arnold v. Splendid Bakery, 88 Idaho 455, 401 P.2d 271 (1965).

Section providing deductions for preexisting injuries and infirmities had no application to a claim for loss of an eye by enucleation where the claimant had previously lost 90% of the vision of such eye but such loss of vision in no way contributed to the necessity for the enucleation of the eye. Gentry v. Bano, Inc., 91 Idaho 790, 430 P.2d 681 (1967).

Am. Jur. 2d.

C.J.S.

Decisions Under Prior Law

“Disability” Defined.

Disability was based on loss of capacity to earn, measured by what a workman of the same class and grade could have earned in the employment in which he was injured under the conditions prevailing therein before and up to the time of the accident. Flynn v. Carson, 42 Idaho 141, 243 P. 818 (1926); Kelley v. Prouty, 54 Idaho 225, 30 P.2d 769 (1934); Herman v. Sunset Mercantile Co., 66 Idaho 47, 154 P.2d 487 (1944).

Left Hand — Loss of Use.

Loss of Vision.

Claimant, who was paid compensation by his employer for partial permanent disability as result of loss of use of right arm and hand in an industrial accident, was entitled to recover for total permanent disability from second injury fund due to prior loss of use of left hand. Anderson v. Potlatch Forests, Inc., 77 Idaho 263, 291 P.2d 859 (1955). Loss of Vision.

A workman having lost the sight of both eyes was not ipso facto totally and permanently disabled. Crawford v. Nielson, 78 Idaho 526, 307 P.2d 229 (1957).

The supreme court ordered an award in favor of claimant for the amount of compensation to which he was entitled under the statutes in proceeding brought where total loss of vision had been sustained as a result of an accident arising out of and in the course of employment, the court holding the evidence did not sustain a finding that such workman was not totally and permanently disabled. Crawford v. Nielson, 78 Idaho 526, 307 P.2d 229 (1957).

The compensation of an employee who, prior to his injury, was totally blind in his right eye and had 20% vision in his left eye corrected to 85% with glasses and who was rendered totally blind by his injury was for permanent total disability with specific indemnity being paid by the employer for the loss of the sight of the left eye undiminished by the fact that his vision in that eye uncorrected by glasses was only 20% prior to the injury and the balance being paid from the special indemnity fund. Cox v. Intermountain Lumber Co., 92 Idaho 197, 439 P.2d 931 (1968).

Medical Attention.

The need for medical attention was not incompatible with the status of total and permanent disability, and where necessary, medical treatment may have been provided for in awards for compensation for total and permanent disability. Irvine v. Perry, 78 Idaho 132, 299 P.2d 97 (1956).

The four-year limitation period set forth in the statute did not apply to cases requiring medical attention and cases of total and permanent disability as defined in this section. Irvine v. Perry, 78 Idaho 132, 299 P.2d 97 (1956).

Physical Condition Prior to Injury.

Nothing was contained in the workmen’s compensation law that limited its provisions to workmen who, previous to injury, were in sound condition and perfect health. Miller v. Bingham County, 79 Idaho 87, 310 P.2d 1089 (1957).

Presumption Rebuttable.

The provision that in the absence of conclusive proof to the contrary the disability scheduled herein should be deemed total and permanent was a rule of evidence. Kelley v. Prouty, 54 Idaho 225, 30 P.2d 769 (1934).

Test of Disability.

The wages earned by a claimant were not the ultimate test as to whether or not claimant was totally and permanently disabled; the ultimate test was ability to work at gainful employment. Crawford v. Nielson, 78 Idaho 526, 307 P.2d 229 (1957).

Total Disability.

The issue in total permanent disability cases was not whether claimant is able to perform his former work, but whether he was able to work at gainful employment. Griffin v. Potlatch Forests, Inc., 93 Idaho 174, 457 P.2d 413 (1969).

Cross References.

Computation of wages,§ 72-419.

Partial disability includes disfigurement,§ 72-102.

Presumption that injury arose in course of employment where employee is killed or physically or mentally unable to testify,§ 72-228.

Average Weekly Wage.

Pursuant to subdivision (1) of this section, the claimant was entitled to benefits equal to 60 percent of his average weekly wage for a period not exceeding 52 weeks, however,§ 72-409(1) instructs that the benefits provided for in subdivision (1) of this section are subject to a maximum of 90 percent of the currently applicable average weekly state wage; therefore, where 60 percent of the claimant’s average weekly wage was in excess of 90 percent of the currently applicable average weekly state wage, the claimant was only entitled to benefits in the amount of 90 percent of the currently applicable average weekly state wage. Nielson v. State, Indus. Special Indem. Fund, 106 Idaho 878, 684 P.2d 280 (1984).

Benefits Although Employed.

Industrial special indemnity fund (ISIF) was liable for payment of income benefits to worker even while worker was employed since the liabilities of employer and ISIF for the benefits provided under this section and§ 72-428 were established by the determination of total permanent disability and the apportionment of the liability for this disability between them; once worker was determined to be totally permanently disabled, the fact that she was able to find some employment that provided her with income did not affect her right to receive the compensation to which she was entitled because of her disability. Garcia v. J.R. Simplot Co., 115 Idaho 966, 772 P.2d 173 (1989), overruled on other grounds, Archer v. Bonners Ferry Datsun, 117 Idaho 166, 786 P.2d 557 (1990).

Commission’s Findings.

Pursuant to this section and§ 72-409, the commission’s determination of plaintiff’s disability benefits required knowledge of her average weekly wage and, because the calculation of her average weekly wage was clearly part of the determination of her benefits, any findings by the commission that related to her average weekly wage were binding on the parties. Phinney v. Shoshone Medical Ctr., 131 Idaho 529, 960 P.2d 1258 (1998).

Constitutionality.

Because the amount of an employee’s financial loss is dependent upon the employee’s wages prior to his injury, it is reasonable for the legislature to consider the employee’s average weekly wage in determining benefits under§ 72-409 and this section; the difference in benefits between workers earning higher rates of pay and workers earning lower rates of pay is rationally related to the legislature’s legitimate goal of compensating injured workers in proportion to their financial loss, therefore§ 72-409 and this section do not violate the equal protection clause of the state or federal constitution. Phinney v. Shoshone Medical Ctr., 131 Idaho 529, 960 P.2d 1258 (1998).

Conversion Reaction.

Claimant was entitled to compensation for continuing treatment regarding a conversion reaction which resulted from an industrial accident. Harrison v. Osco Drug, Inc., 116 Idaho 470, 776 P.2d 1189 (1989).

Decrease in Earning Capacity.

Effect of Amendment of Section.

Whether an individual is disabled is not determined by whether that person is under the care of a physician but by whether that person has suffered a decrease in wage-earning capacity. Sykes v. C.P. Clare & Co., 100 Idaho 761, 605 P.2d 939 (1980). Effect of Amendment of Section.

Since the injury giving rise to claimant’s right of compensation occurred before the effective date of 1991 amendment to this section, the industrial commission did not err in concluding that the former version of this section should have been used in calculating claimant’s benefit rate even though claimant was not determined to be totally disabled until after the effective date of the amendment. Drake v. State, Indus. Special Indemnity Fund, 128 Idaho 880, 920 P.2d 397 (1996).

Manifest Injustice.

In a workers’ compensation case, the Idaho industrial commission should have corrected a manifest injustice under§ 72-719(3) where a doctor subsequently stated that a benefits claimant had not achieved medical stability as of a certain date. It was later discovered that the doctor had not examined the claimant on the date in question; she failed to show up for her appointment, but later obtained more medical treatment. Page v. McCain Foods, Inc., 145 Idaho 302, 179 P.3d 265 (2008).

Odd-Lot Doctrine.

An examination of the policy behind the creation of the industrial special indemnity fund indicates that the employer’s liability for permanent partial impairment should not increase, simply because a claimant is totally and permanently disabled through application of the odd-lot doctrine because of injuries unrelated to the industrial accident; accordingly, the escalator provision of subdivision (1) or (2) of this section did not apply to the employer’s share of liability in a case where the employee suffered a 50 percent partial disability due to his injury, but was found to be totally and permanently disabled under the odd-lot doctrine. Carey v. Clearwater County Rd. Dep’t, 107 Idaho 109, 686 P.2d 54 (1984).

Partial Permanent Disability.

Once a claimant’s condition is stabilized and his disability is rated, his benefits are calculated differently: If the disability is total, it is still computed by the “currently applicable average weekly state wage” of subdivision (1) or (2) of this section, but if it is a partial permanent disability, it is calculated under§ 72-428, which makes no reference to the “currently applicable” average weekly state wage of subdivisions (1) and (2) of this section. Hence, the legislature intended benefits for partial permanent disability to be fixed and quantifiable. Partial permanent disability benefits are not, nor are they intended to be, whole-life benefits. Carey v. Clearwater County Rd. Dep’t, 107 Idaho 109, 686 P.2d 54 (1984).

The decision of the industrial commission awarding the claimant a permanent partial impairment rating of two and one-half percent of the whole man and denying the claimant retraining was supported by the evidence where the substantial medical evidence indicated no positive objective orthopedic findings nor any neurologic abnormalities and other evidence indicated the claimant’s ability to return to work at least in a related field, and that he would suffer no income loss as a result of the industrial accident. Doyle v. Spangler Bros., 110 Idaho 757, 718 P.2d 1195 (1986).

Period of Recovery.

This section entitled claimant to income benefits for total and partial disability during the period of recovery from a second surgery. Reese v. V-1 Oil Co., 141 Idaho 630, 115 P.3d 721 (2005).

Where a worker was injured, he was entitled to so-called temporary income benefits during the period of recovery, this section, but Idaho’s worker’s compensation statutes did not define the period of recovery, but it ended when the worker was medically stable, and the issue of maximum medical improvement was properly before the referee. Hernandez v. Phillips, 141 Idaho 779, 118 P.3d 111 (2005).

Idaho industrial commission properly held that an employee, who sustained an accident on January 9, 2008, was only entitled to temporary total disability and medical care benefits for care provided up to February 19, 2008; as substantial evidence supported the conclusion that, as of that date, she had reached medical stability for the injury she suffered in the accident. Harris v. Indep. Sch. Dist. No. 1, 154 Idaho 917, 303 P.3d 604 (2013).

Standing.

Since plaintiff received less compensation under this section and§ 72-409 than workers who earned higher wages prior to their injury, she had standing to bring a constitutional challenge to these statutes. Phinney v. Shoshone Medical Ctr., 131 Idaho 529, 960 P.2d 1258 (1998).

Total Disability.

It is not necessary for a person to be physically unable to do anything worthy of compensation to be classified as totally disabled. Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 565 P.2d 1360 (1977).

Total Temporary Disability.

Where claimant testified as to statements made to him by his doctors indicating his physical impairment, but did not support his testimony with doctor’s reports, depositions or a physician’s oral testimony, his testimony did not constitute medical testimony which was necessary to support his claim for compensation; as a result, he failed to satisfy the burden required in order to establish his eligibility for total temporary disability benefits. Sykes v. C.P. Clare & Co., 100 Idaho 761, 605 P.2d 939 (1980).

Once a claimant establishes by medical evidence that he is still within the period of recovery from the original industrial accident, he is entitled to total temporary disability benefits unless and until evidence is presented that he has been medically released for light work and that (1) his former employer has made a reasonable and legitimate offer of employment to him which he is capable of performing under the terms of his light work release and which employment is likely to continue throughout his period of recovery, or that (2) there is employment available in the general labor market which the claimant has a reasonable opportunity of securing and which employment is consistent with the terms of his light duty work release. Malueg v. Pierson Enters., 111 Idaho 789, 727 P.2d 1217 (1986).

Cited Paulson v. Idaho Forest Indus., Inc., 99 Idaho 896, 591 P.2d 143 (1979); Lopez v. Amalgamated Sugar Co., 107 Idaho 590, 691 P.2d 1205 (1984); Harmon v. Lute’s Constr. Co., 112 Idaho 291, 732 P.2d 260 (1986); Rhodes v. Sunshine Mining Co., 113 Idaho 162, 742 P.2d 417 (1987); Ochoa v. State, Indus. Special Indem. Fund, 118 Idaho 71, 794 P.2d 1127 (1990); Jarvis v. Rexburg Nursing Ctr., 136 Idaho 579, 38 P.3d 617 (2001). Decisions Under Prior Law

Average Weekly Wages.

Since the legislature intended that the meaning of the term “average weekly wages” and the provisions for 36 times hourly rate or 4 1/2 times the day rate as the basis of calculating amount of compensation were applicable to part-time employee, board’s award of $37.00 per week as compensation to the part-time employee who had average hourly income of $2.75 was correct. Nelson v. Bogus Basin Recreational Ass’n, 94 Idaho 175, 484 P.2d 290 (1971).

Compensable Disability.

The compensation law spoke of terms of “disability for work,” not in terms of disability in the medical sense: hence it was not error for the board to award temporary compensation and medical expenses for an industrial accident which tore open scarred tissue resultant from an old injury, even though the surgery performed would eventually have been required because of the old injury, where the claimant was engaged in full-time employment at the time of the accident. Wilson v. Gardner Associated, Inc., 91 Idaho 496, 426 P.2d 567 (1967).

Computation of Amount.

The employee was not entitled to further compensation for total disability from an eye injury where it was made to appear that he had received compensation for more than 150 weeks. The rule with respect to partial disability was inapplicable. Kelley v. Prouty, 54 Idaho 225, 30 P.2d 769 (1934).

Without evidence to show the average earnings of an employee over the preceding twelve month period before the accident, or a showing of what the average wages are of workmen of the same grade employed in the same class of employment, the industrial accident board [now industrial commission] had no authority to arbitrarily set a figure as the employee’s average weekly wage and from that compute an award. Feuling v. Farmers’ Co-op. Ditch Co., 54 Idaho 326, 31 P.2d 683 (1934).

Where question of partial temporary disability was raised after termination of total temporary disability, board should have determined loss of earning capacity even though there was no evidence as to the amount of compensation to which the claimant was entitled. Herman v. Sunset Mercantile Co., 66 Idaho 47, 154 P.2d 487 (1944). An employee who suffered loss of earnings due to temporary disability after termination of total temporary disability was entitled to compensation equal to 55% of difference of weekly wages earned before accident and wages he was able to earn afterward for the statutory period. Herman v. Sunset Mercantile Co., 66 Idaho 47, 154 P.2d 487 (1944).

Rule upon which loss of capacity to earn was based was, what a workman of same class and grade could have earned in same employment in which he was engaged before and up to the time of accident. Herman v. Sunset Mercantile Co., 66 Idaho 47, 154 P.2d 487 (1944).

Where claimant’s injury was permanent, not temporary, as result of claimant’s condition becoming static, authorizing an award for partial disability, no additional award could be made. McCall v. Potlatch Forests, Inc., 69 Idaho 410, 208 P.2d 799 (1949).

Construction.

The industrial accident board [now industrial commission] had no authority to approve an agreement for compensation for a lesser amount than that prescribed by law, although it was in contemplation of the parties to such agreement to abate the amount fixed by law, in proportion to the disability that was the result of a preexisting and progressive disease of appendicitis. Hanson v. Independent Sch. Dist. 11-J, 57 Idaho 297, 65 P.2d 733 (1937).

Death of Employee.

One whose employment brought him within the scope and benefits of the law was entitled to compensation for loss of earning capacity due to injury by accident arising out of, and in the course of, his employment, and one who was dependent upon such employee at the time of the accident, as provided for by statute, if the employee died as a result of the accident, was entitled to compensation for loss of support due to the death, but was not entitled to compensation for loss of earning capacity of the employee during his lifetime. Rand v. Lafferty Transp. Co., 60 Idaho 507, 92 P.2d 786 (1939).

An award based on disability for work, did not survive the death of the injured workman, and was distinguished from death benefits to dependents and specific indemnities or liquidated damages. Mahoney v. Payette, 64 Idaho 443, 133 P.2d 927 (1943).

Disability Ended.

Where an agreement showed it was the intention of the parties that when disability in fact actually ceased, then no further payments were required, this meant that when disability as a matter of fact ceased, payments should cease. Kelley v. Prouty, 54 Idaho 225, 30 P.2d 769 (1934).

Where it was made to appear that by the use of corrective glasses the injured employee was able to perform ordinary work and labor and thereby earn the usual wages for such work, he was not entitled to further compensation. Kelley v. Prouty, 54 Idaho 225, 30 P.2d 769 (1934).

There was no statutory provision under the workmen’s compensation law requiring the employer or surety to bring an action or proceeding to establish nondisability. It was true that if the parties were not agreed that disability had in fact ceased, then it became a matter of fact to be determined by the industrial accident board [now industrial commission]. Kelley v. Prouty, 54 Idaho 225, 30 P.2d 769 (1934).

Where employee after termination of total temporary disability started driving truck over mountains and subsequently completed training for sea duty he was not entitled to an award of $12 per week from time of termination of disability for a period of 150 weeks from date of accident. Herman v. Sunset Mercantile Co., 66 Idaho 47, 154 P.2d 487 (1944). Where board made an award for partial permanent disability after termination of total temporary disability, claimant was not entitled to an additional award for partial temporary disability. Blackburn v. Olson, 69 Idaho 428, 207 P.2d 1160 (1949).

Effect of Award.

An award became a final adjudication and may have been changed thereafter, only because of changed conditions, and a wrong classification or an incorrect amount awarded could not be corrected or disturbed. Barry v. Peterson Motor Co., 55 Idaho 702, 46 P.2d 77 (1935).

In General.

Unlike certain other states, our workmen’s compensation law contained no provision for rating a partial permanent disability in terms of specific indemnity comparable to a percentage of total permanent disability or on basis of “the whole man.” Hix v. Potlatch Forests, Inc., 88 Idaho 155, 397 P.2d 237 (1964).

Intermittent Employment.

Employee having received compensation for more than 150 weeks was not entitled to compensation hereunder, but if disability, either total or partial, extended for 150 weeks, he was entitled to compensation for that full period, even though there was intermittent employment. Eldridge v. Idaho State Penitentiary, 54 Idaho 213, 30 P.2d 781 (1934).

Where the evidence showed that after the accident claimant worked in a mercantile store for a few days, but that he was unable to continue his work because of the pain, and aside from that work, he spent 16 days in a national guard encampment, but while there took no part in hard physical exercise or labor, this was sufficient to sustain a finding that by reason of the injury the employee was partially disabled for work for a period of 30 weeks from the date of the accident. Feuling v. Farmers’ Co-op. Ditch Co., 54 Idaho 326, 31 P.2d 683 (1934).

Loss of Vision.

The supreme court ordered an award in favor of claimant for the amount of compensation to which he was entitled under the statutes in proceeding brought where total loss of vision had been sustained as a result of an accident arising out of and in the course of employment, the court holding the evidence did not sustain a finding that such workman was not totally and permanently disabled. Crawford v. Nielson, 78 Idaho 526, 307 P.2d 229 (1957).

An employee who, prior to his injury was totally blind in his right eye and had 20% vision in his left eye corrected to 85% with glasses was, upon becoming wholly blind as the result of an industrial accident entitled to total disability benefits of $45.00 a week for 400 weeks with 120 weeks at $30.00 a week to be paid by the employer and the remainder from special indemnity fund, the employer’s liability for loss of the sight of the left eye not being reduced by the fact that his vision prior to the accident, uncorrected by glasses was only 20%. Cox v. Intermountain Lumber Co., 92 Idaho 197, 439 P.2d 931 (1968).

Pleading.

Test of Disability.

Where the evidence so warranted, it was not fatal error to fail to plead specifically partial temporary disability. Herman v. Sunset Mercantile Co., 66 Idaho 47, 154 P.2d 487 (1944). Test of Disability.

The wages earned by a claimant were not the ultimate test as to whether or not claimant was totally and permanently disabled; the ultimate test was ability to work at gainful employment. Crawford v. Nielson, 78 Idaho 526, 307 P.2d 229 (1957).

A workman having lost the sight of both eyes was not ipso facto totally and permanently disabled. Crawford v. Nielson, 78 Idaho 526, 307 P.2d 229 (1957).

Total Disability.

Employee suffering injury not scheduled in the section providing specific indemnities for certain injuries, but temporarily totally disabled for work, was entitled to compensation. Eldridge v. Idaho State Penitentiary, 54 Idaho 213, 30 P.2d 781 (1934).

The statute applied to cases of total permanent disability and temporary total disability. Eldridge v. Idaho State Penitentiary, 54 Idaho 213, 30 P.2d 781 (1934).

The statute specifically provided that the employer, which of course included the surety, should pay compensation in the event of total disability during such disability, thus negativing the idea that compensation should have been paid after disability as a fact actually ceased. Kelley v. Prouty, 54 Idaho 225, 30 P.2d 769 (1934).

Where it appeared that at the time of the accident employee had dependents, but that at no time during the employee’s disability, which occurred approximately four years later, did he have dependents within the meaning of the workmen’s compensation law, his compensation should in these circumstances have been fixed at the rate of $12.00 a week. McRae v. School Dist. No. 23, 56 Idaho 384, 55 P.2d 724 (1936).

The statute had reference, specifically, to cases of total disability from injury incurred by accident, arising out of and in the course of claimant’s employment, and fixed the amount of compensation and the period during which it should be paid. McRae v. School Dist. No. 23, 56 Idaho 384, 55 P.2d 724 (1936).

Board in deducting from award for total permanent disability, period of 400 weeks previously awarded, correctly made the award period and not the pay period the criterion in making the deduction. Endicott v. Potlatch Forests, Inc., 69 Idaho 450, 208 P.2d 803 (1949).

Where the statute provided that in case of specified injuries, the compensation should be 55 per cent of the average weekly wages, but not more than the weekly compensation, in addition to all other compensation, the clause in addition to all other compensation meant but one permanent award in addition to temporary compensation accruing prior to the time claimant’s condition became sufficiently static for board to make a final award. McCall v. Potlatch Forests, Inc., 69 Idaho 410, 208 P.2d 799 (1949).

ALR.

Workers’ compensation: Value of expenses reimbursed by employer as factor in determining basis for or calculation of amount of compensation under state workers’ compensation statute. 63 A.L.R.6th 187.

Validity, Construction, and Application of State Workers’ Compensation Laws Specifically Providing for Facial Disfigurement. 11 A.L.R.7th 7.

Compiler’s Notes.

The term “this law” near the beginning of subsection (2) refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Effective Dates.

The reference to the department of employment in the first sentence of subsection (2) should be to the department of labor. See§ 72-1333. Effective Dates.

Section 2 of S.L. 1998, ch. 210 declared an emergency. Approved March 20, 1998.

Commission’s Findings.

Pursuant to this section and§ 72-408, the commission’s determination of plaintiff’s disability benefits required knowledge of her average weekly wage and, because the calculation of her average weekly wage was clearly part of the determination of her benefits, any findings by the commission that relate to her average weekly wage were binding on the parties. Phinney v. Shoshone Medical Ctr., 131 Idaho 529, 960 P.2d 1258 (1998).

Constitutionality.

Because the amount of an employee’s financial loss is dependent upon the employee’s wages prior to his injury, it is reasonable for the legislature to consider the employee’s average weekly wage in determining benefits under§ 72-408 and this section; the difference in benefits between workers earning higher rates of pay and workers earning lower rates of pay is rationally related to the legislature’s legitimate goal of compensating injured workers in proportion to their financial loss, therefore§ 72-408 and this section do not violate the equal protection clause of the state or federal constitution. Phinney v. Shoshone Medical Ctr., 131 Idaho 529, 960 P.2d 1258 (1998).

Escalator Provision.

The escalator provision in this section becomes effective for an individual claimant immediately following the end of his initial 52 week period of disability, and the average weekly state wage in effect at that time shall be utilized for computation of a claimant’s compensation benefits. Ochoa v. State, Indus. Special Indem. Fund, 118 Idaho 71, 794 P.2d 1127 (1990).

As the workers’ compensation death benefits statute existed in 1985, benefits were fixed and quantifiable and did not allow for annual adjustments in the weekly state wage. Vincent v. Dynatec Mining Corp., 132 Idaho 200, 969 P.2d 249 (1998).

Limitation on Maximum Benefits.

Standing.

Pursuant to§ 72-408(1), the claimant was entitled to benefits equal to 60 percent of his average weekly wage for a period not exceeding 52 weeks; however, subsection (1) of this section instructs that the benefits provided for in§ 72-408(1) are subject to a maximum of 90 percent of the currently applicable average weekly state wage. Therefore, where 60 percent of the claimant’s average weekly wage was in excess of 90 percent of the currently applicable average weekly state wage, the claimant was only entitled to benefits in the amount of 90 percent of the currently applicable average weekly state wage. Nielson v. State, Indus. Special Indem. Fund, 106 Idaho 878, 684 P.2d 280 (1984). Standing.

Since plaintiff received less compensation under this section and§ 72-408 than workers who earned higher wages prior to their injury, she had standing to bring a constitutional challenge to these statutes. Phinney v. Shoshone Medical Ctr., 131 Idaho 529, 960 P.2d 1258 (1998).

Cross References.

Time of dependency,§§ 72-401, 72-411, 72-440.

Amendments.

The 2006 amendment, by ch. 186, deleted “if under eighteen (18) years of age, or incapable of self-support and unmarried, whether or not actually dependent upon the deceased or disabled employee” from the end of the introductory paragraph in subsection (1) and added subsections (1)(a) and (b).

Compiler’s Notes.

The term “this act” at the end of the introductory paragraph refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Effective Dates.

Section 3 of S. L. 1975, ch. 13 declared an emergency. Approved February 28, 1975.

Actually Dependent.

The workmen’s compensation law addresses dependency not in terms of “legal” dependency but rather “actual” dependency; accordingly, “actually dependent” as used in subsection (4) of this section means dependent in fact, not dependent by law. Hayes v. Amalgamated Sugar Co., 104 Idaho 279, 658 P.2d 950 (1983). Where the evidence presented showed that the workmen’s compensation claimant was wholly dependent on her deceased son for support as of the date of his death and that the claimant was not receiving food stamps or any other type of support from state or federal agencies, the evidence supported the commission’s finding that the claimant was entitled to benefits as an actual dependent of her deceased son, notwithstanding the fact that the son was killed on only his third day of work and had not yet received a single paycheck from his employer. Hayes v. Amalgamated Sugar Co., 104 Idaho 279, 658 P.2d 950 (1983).

Decisions Under Prior Law

Children.

An agreement of the employer and his surety to pay a child compensation, after being approved by the board, had the same effect as an award. It was not subject to review on appeal on the grounds of a change in conditions, alleging that the child was of illegitimate birth, in the absence of fraud in the inception of the agreement. Rodius v. Coeur d’Alene Mill Co., 46 Idaho 692, 271 P. 1 (1928).

Where a report of a school district fixed the compensation of the janitor’s wife at $35.00 per month “plus room, heat, and light,” she was receiving more than the minimum wage essential to an award of $6.00 per week, and the evidence of the work actually performed by the janitor’s wife, and the wages paid by the school district, coupled with such statement of the school board, justified the award of $6.00 per week to a minor child by the industrial accident board [now industrial commission]. Larson v. Independent Sch. Dist. No. 11-J, 53 Idaho 49, 22 P.2d 299 (1933).

Where an employee, after marriage to the mother of children by prior marriage, assumed the responsibility of a father to the children, and they were known and called by the employee’s name at his request, they were his “dependents” at the time of his injury and death within the meaning of the compensation act. Nicholas v. Idaho Power Co., 63 Idaho 675, 125 P.2d 321 (1942).

Stepchildren of deceased employee were properly included in award along with wife of employee though father of stepchildren was required to pay $100 per month for their support and children were living with their father at time of employee’s death. Sanders v. Ray, 67 Idaho 200, 174 P.2d 836 (1946).

For the purpose of death benefits, the statute defined dependents as including a child if under 18 years of age or incapable of self-support and unmarried, whether actually dependent upon the deceased or not, which relationship must have existed at the time of the accident. In re Jones, 84 Idaho 327, 372 P.2d 406 (1962).

Minor children were entitled to payment of workmen’s compensation benefits growing out of the death of their father in covered employment even if the children had been legally adopted by a married couple. In re Jones, 84 Idaho 327, 372 P.2d 406 (1962). A child was deemed dependent whether actually dependent upon the decedent parent or not. In re Jones, 84 Idaho 327, 372 P.2d 406 (1962).

Construction.

The statute was confined to death benefits. McRae v. School Dist. No. 23, 56 Idaho 384, 55 P.2d 724 (1936).

The legislature having full power to determine the classes to whom compensation should have been paid, the correction of any hardship resulting therefrom should have been addressed to that body. Sanders v. Ray, 67 Idaho 200, 174 P.2d 836 (1946).

The rule of liberal construction in favor of dependents was particularly applicable under the workmen’s compensation law. Sanders v. Ray, 67 Idaho 200, 174 P.2d 836 (1946).

Dependency Question of Fact.

What constituted actual dependency was a question of fact and each case must have rested and been decided upon its own particular facts and circumstances. In re Konin, 69 Idaho 28, 202 P.2d 239 (1949).

The legal obligation to support, standing alone, would not establish actual dependency. In re Konin, 69 Idaho 28, 202 P.2d 239 (1949).

In determining whether widow who had been separated from her husband for three years at the time of his death was wholly or partially dependent, the test should not be whether the claimant could have existed without the aid he supplied but rather whether the assistance given by decedent was substantial and whether it enabled his family to enjoy a better life than they could have without such help and assistance. In re Haynes, 95 Idaho 492, 511 P.2d 309 (1973).

Where claimant and decedent had been separated three years prior to decedent’s death, evidence that claimant used decedent’s credit card to purchase gas, that decedent had made four or five car payments on claimant’s car, had paid claimant’s auto insurance for a portion of the time after their separation, had paid various medical bills for claimant and their daughter and had sent cash to claimant on numerous occasions when she so requested was sufficient to show that decedent had given substantial assistance to claimant during their separation thereby entitling her to benefits. In re Haynes, 95 Idaho 492, 511 P.2d 309 (1973).

Marital Status.

Where an application for compensation for the death of a husband stated that the claimant bore the relationship of spouse to the deceased and was actually and wholly dependent upon him for support on the day of the accident, and the answer of the employer admitted this paragraph, but thereafter filed an amendment and alleged that “The claimant Lillian R. Bocock is not a dependent widow under the purview of the Workmen’s Compensation Act of Idaho,” this was not the equivalent of an allegation that she was neither dependent on her husband nor living with him at the time of the accident, and was insufficient to defeat her right to compensation upon that issue. Bocock v. State Bd. of Educ., 55 Idaho 18, 37 P.2d 232 (1934).

Although the husband, during his lifetime, did not contribute much to the support of his wife and family, but did make some small contributions, and they temporarily lived at different places, in order to obtain lodging and the necessaries of life, it did not render the wife and children any the less the dependents of the husband. Smith v. McHan Hdwe. Co., 56 Idaho 43, 48 P.2d 1102 (1935). In a case where a claimant asserted that she was married to deceased employee, her prior marriage was not material on the question of whether she was the widow of the deceased. Mauldin v. Sunshine Mining Co., 61 Idaho 9, 97 P.2d 608 (1939).

Evidence was sufficient to establish a marriage between deceased and claimant for compensation, since the law will presume morality, and not immorality, marriage, and not concubinage, legitimacy, and not bastardy: when a marriage has been shown in evidence, whether regular or irregular, and whatever the form of proof, the law comes to its aid with a strong presumption of its legality, casting the burden of proof upon the party objecting and requiring him in every particular to make plain against the constant pressure of such presumption, the truth of law and fact that the marriage is illegal. Mauldin v. Sunshine Mining Co., 61 Idaho 9, 97 P.2d 608 (1939).

Mere proof that the husband made his appearance in his wife’s divorce action, that no divorce was ever granted in that action, and that the action was dismissed did not prove that the husband was alive or undivorced from his wife at the time of her subsequent marriage to another, and did not preclude the wife’s recovery of compensation under the compensation act for the death of the second husband. Nicholas v. Idaho Power Co., 63 Idaho 675, 125 P.2d 321 (1942).

Where a husband entered into consent marriage at a time when his first wife was still living, and continued in such second marital relation, and he and the second wife conducted themselves as husband and wife after the divorce decree from the first wife had become final, and in application for employment the husband named the second wife as his wife, such second wife was the husband’s “widow” on his death, and entitled to workmen’s compensation. Morrison v. Sunshine Mining Co., 64 Idaho 6, 127 P.2d 766 (1942).

Claimant wife could not recover unless “actually dependent” either wholly or in part, upon the deceased husband at time of accident resulting in death; since it was undisputed that they had not lived together for a number of years, prior to his death, the burden of proof was upon such claimant to establish actual dependency. In re Konin, 69 Idaho 28, 202 P.2d 239 (1949).

Evidence showing claimant widow had not been supported by decedent during the short time they lived together nor after their separation, and showing that she neither expected nor anticipated receipt of financial assistance from decedent or that by his death she lost anything she was receiving or might have received, justified the board in finding that claimant was not actually dependent upon decedent at time of his death. In re Konin, 69 Idaho 28, 202 P.2d 239 (1949).

The statute which provided that a judgment of nullity of a marriage rendered was conclusive only as against the parties thereto or claiming under them, could not be invoked to prevent a wife of a deceased first husband from obtaining benefit rights after a second marriage was annulled because the second husband had an undivorced wife at the time of marriage. Duncan v. Jacobsen Constr. Co., 83 Idaho 254, 360 P.2d 987 (1961).

Section defining dependents and providing for entitlement to compensation clearly contemplated a valid and subsisting marriage adjudicated as void ab initio. Duncan v. Jacobsen Constr. Co., 83 Idaho 254, 360 P.2d 987 (1961).

Parents.

A mother had to show dependency upon a son by competent evidence, to establish a claim for compensation. Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227 (1924).

Where there was a mother having a number of sons all of whom lived on a farm except one, and he worked and contributed to her support, she was dependent. Gloubitz v. Smeed Bros., 53 Idaho 7, 21 P.2d 78 (1933). Where the evidence showed that a deceased employee helped his parents build a barn on their ranch, painted it, installed complete plumbing fixtures in the house, built a septic tank, and drainage system, painted the house, built a woodshed, maintained a water-pumping system, serviced the engine, purchased and cared for a cream separator, worked upon the ranch, and made voluntary contributions to assist them, helped pay for the ranch, performed labor in planting and harvesting the crops, helped purchase a horse and a binder and other farm equipment, and employed a man to take his place upon the ranch and paid him his wages, it was sufficient to sustain an award to the parents upon the theory that they were partially dependent upon him. Miller v. G.L. Arnett & Son, 58 Idaho 420, 74 P.2d 177 (1937).

Where the evidence showed that the employee had helped on his father’s farm and later on contributed money from his earnings, which was necessary to the support of the father, this was sufficient to establish the father’s dependency, and this was true notwithstanding the fact that there was no note of such dependency on the employee’s identification card. Chambers v. State ex rel. Parsons, 59 Idaho 200, 81 P.2d 748 (1938).

It was not necessary in order to establish that a parent or grandparent was dependent upon the deceased employee, to prove a contractual obligation on the part of the employee to that effect. Chambers v. State ex rel. Parsons, 59 Idaho 200, 81 P.2d 748 (1938).

A mother who was wholly dependent upon her son was entitled to compensation for his death, when his employment was within the scope and benefits of the workmen’s compensation law and his death was the result of an accident within the course of his employment. Rand v. Lafferty Transp. Co., 60 Idaho 507, 92 P.2d 786 (1939).

In order for a parent to be awarded compensation, there had to be evidence of at least partial dependency of such parent upon the deceased employee. Rand v. Lafferty Transp. Co., 60 Idaho 507, 92 P.2d 786 (1939).

Parents received compensation only if dependent on the child injured or killed. Stample v. Idaho Power Co., 92 Idaho 763, 450 P.2d 610 (1969).

ALR.

Discrimination on basis of illegitimacy as denial of constitutional rights. 38 A.L.R.3d 613.

Legal status of posthumously conceived child of decedent. 17 A.L.R.6th 593.

Cross References.

Dependency, time of, death benefits from occupational disease,§ 72-440.

Dependency, when determined,§ 72-401.

Cross References.

Determination of wages,§ 72-419.

Amendments.

The 2006 amendment, by ch. 186, in subsection (2), added “Unless as otherwise provided in subsection (3) of this section” to the beginning; added present subsection (3); and redesignated former subsections (3) to (5) as (4) to (6).

Cited In re Reichert, 95 Idaho 647, 516 P.2d 704 (1973). Decisions Under Prior Law

Computation of Wages.

Where a report of a school district fixed the compensation of the janitor’s wife at $35.00 per month “plus room, heat, and light,” she was receiving more than the minimum wage essential to an award of $6.00 per week, and the evidence of the work actually performed by the janitor’s wife, and the wages paid by the school district, coupled with such statement of the school board, justified the award of $6.00 per week to a minor child by the industrial accident board [now industrial commission]. Larson v. Independent Sch. Dist. No. 11-J, 53 Idaho 49, 22 P.2d 299 (1933).

Where the wife of deceased employee testified that she kept an account of her husband’s earnings, and that he gave her his checks and had earned $663.60 from March until August for the work he did for different employers; and gave testimony as to the amount decedent received each day; testifying that he received 40 cents per hour from the employer whom decedent was working for at time of death, and this was corroborated by another; such evidence was sufficient to sustain an award for the minimum amount. In re Black, 58 Idaho 803, 80 P.2d 24 (1938), overruled on other grounds, Hite v. Kulhenak Bldg. Contractors, 96 Idaho 70, 524 P.2d 531 (1974).

Death after Award.

An employee died from an injury due to an accident in the course of his employment. His widow was granted an award payable over a period of 400 weeks. She died about two years after the award was made. It was held that her administrator was entitled to the balance remaining unpaid at her death. State Ins. Fund v. Hunt, 52 Idaho 639, 17 P.2d 354 (1932).

Where an employee was injured and thereafter died, but after the injury or before his death he received compensation, and he left no dependents, then the amount of compensation paid him in the interim between the injury and death was to be deducted from the $1000 due the state. State ex rel. Wright v. Potlatch Forests, Inc., 60 Idaho 797, 97 P.2d 394 (1939).

Present Value of Future Liability.

Where the commission was instructed to determine, or have the parties stipulate, how much the present value of the claimants’ future compensation should have been discounted in consideration of the contingency that the claimants might die or marry at some point during the remainder of the nine and one-half year payment period, the total amount of the benefit to be paid out over about nine and one-half years should not only have been discounted to its present value, it also should have been discounted based on the contingent nature of those claimants’ rights to receive those benefits. Cameron v. Minidoka County Hwy. Dist., 125 Idaho 801, 874 P.2d 1108 (1994).

Cross References.

No limitations as to minor or insane not under guardianship,§ 72-705.

Effective Dates.

Section 2 of S. L. 1974, ch. 30 declared an emergency. Approved February 27, 1974.

Annual Adjustments.

As the workers’ compensation death benefits statute existed in 1985, benefits were fixed and quantifiable, and did not allow for annual adjustments in the weekly state wage. Vincent v. Dynatec Mining Corp., 132 Idaho 200, 969 P.2d 249 (1998).

Constitutionality.

Because the intent of the statutes is to provide for loss of monetary support, it is both rational and reasonable for the legislature to limit benefits to those individuals who were truly dependent on the deceased worker. Therefore, by leaving independent adult children of deceased workers benefitless, this section did not violate the equal protection clauses of the state and federal constitutions. Meisner v. Potlatch Corp., 131 Idaho 258, 954 P.2d 676 (1998), cert. denied, 525 U.S. 818, 119 S. Ct. 56, 142 L. Ed. 2d 44 (1998).

Dependency.

Cited

The workmen’s compensation law addresses dependency not in terms of “legal” dependency but rather “actual” dependency; accordingly, “actually dependent” as used in§ 72-410(4) means dependent in fact, not dependent by law. Hayes v. Amalgamated Sugar Co., 104 Idaho 279, 658 P.2d 950 (1983). Cited In re Reichert, 95 Idaho 647, 516 P.2d 704 (1972); Monroe v. Chapman, 105 Idaho 269, 668 P.2d 1000 (1983).

Decisions Under Prior Law

Aggravation of Preexisting Condition.

Death resulting concurrently from injury by an accident and a preexisting disease entitled dependents to death benefits. In re Larson, 48 Idaho 136, 279 P. 1087 (1929); In re Soran, 57 Idaho 483, 67 P.2d 906 (1937); In re Cain, 64 Idaho 389, 133 P.2d 723 (1943); Bishop v. Morrison-Knudsen Co., 64 Idaho 806, 137 P.2d 963 (1943).

The fact that an employee had a heart condition, prior to his injury, would not defeat the right to compensation for his death through aggravation of the heart condition, by a back injury sustained while employed. Soran v. McKelvey, 57 Idaho 483, 67 P.2d 906 (1937).

The evidence warranted a denial of compensation where there was no evidence to show that the employee died of an injury arising out of or occurring in the course of his employment and there was evidence that he died of coronary thrombosis. Wade v. Pacific Coast Elevator Co., 64 Idaho 176, 129 P.2d 894 (1942).

Death from coronary thrombosis or occlusion caused by over-exertion resulting from accident was compensable, notwithstanding heart ailment predisposing to occlusion. In re Cain, 64 Idaho 389, 133 P.2d 723 (1943).

On conflicting evidence, board found carcinomatosis, not aggravated or accelerated by traumatic injuries, was cause of death. Denial of award was sustained. Madariaga v. Delamar Milling Corp., 64 Idaho 660, 135 P.2d 438 (1943).

Death benefits were not subject to abatement or deduction on account of the contribution or concurrence of preexisting disease, as disability under former§ 72-323. Bishop v. Morrison-Knudsen Co., 64 Idaho 806, 137 P.2d 963 (1943).

A finding that death resulted from injury from accidental fall of workman with preexisting disease, augmented by hard work afterwards was sustained. While “hard work” was not an “accident” or an “injury,” it might augment or accelerate the injurious results of an accident. Bishop v. Morrison-Knudsen Co., 64 Idaho 806, 137 P.2d 963 (1943).

Compensation was recoverable where employee’s work caused an accident which aggravated or accelerated a previous diseased condition of the worker, causing death. Teater v. Dairymen’s Co-op. Creamery, 68 Idaho 152, 190 P.2d 687 (1948).

Burden of Proof.

The burden was on claimant to show by preponderance of evidence that death resulted from accident arising out of and in the course of his employment. Parkison v. Anaconda Copper Mining Co., 56 Idaho 610, 57 P.2d 1216 (1936); Madariaga v. Delamar Milling Corp., 64 Idaho 660, 135 P.2d 438 (1943); Cameron v. Bradley Mining Co., 66 Idaho 409, 160 P.2d 461 (1945).

Claimant had the burden of establishing the probable cause of death of the employee. Stralovich v. Sunshine Mining Co., 68 Idaho 524, 201 P.2d 106 (1948).

The claimant had to prove an industrial injury caused by accident arising out of and in the course of the employment, and in the event of death that death resulted from injury sustained. Swan v. Williamson, 74 Idaho 32, 257 P.2d 552 (1953).

Cause of Death.

Where a workman was bitten by a wood tick, at a time while he was employed, and death resulted, his dependents were entitled to compensation. Nelson v. Tesemini Timber Protective Ass’n, 59 Idaho 529, 84 P.2d 566 (1938).

Driver suffering brain injury and mentally deranged as result of overturning of truck was killed by self-inflicted or accidental gun shot. It was held that the after effect of compensable injury was proximate cause of death. Brink v. H. Earl Clack Co., 60 Idaho 730, 96 P.2d 500 (1939).

Where board erroneously computed death benefits, award was sustained but case was remanded with direction to compute benefits under the statute making last employer liable. Goaslind v. Pocatello, 61 Idaho 435, 102 P.2d 650 (1940).

Injured workman under treatment for compensable injury with arm in plaster cast was precipitated into water from capsized boat on a fishing trip. It was held that capsizing of boat, not the initial injury, was proximate cause of death. Linder v. Payette, 64 Idaho 656, 135 P.2d 440 (1943).

Cause of death was a question of fact for board’s determination. Bishop v. Morrison-Knudsen Co., 64 Idaho 806, 137 P.2d 963 (1943).

Where death followed soon after an injury to an able-bodied man, there arose a presumption or natural inference that the death was caused by the injury, in the absence of believed contrary testimony, and even though the only doctor who testified stated that there was no causal relation, an award to a claimant had to stand, as the doctor may have been disbelieved and causal relation inferred from the rest of the evidence. Stralovich v. Sunshine Mining Co., 68 Idaho 524, 201 P.2d 106 (1948).

Sudden death of able-bodied employee while doing light work in normal course of his employment was not compensable where board made no finding as to cause of death, since sudden death in itself was not an accident. Swan v. Williamson, 74 Idaho 32, 257 P.2d 552 (1953).

Children.

Where guardian and ward were both nonresidents of Idaho, and guardian had not complied with statutes authorizing him to remove ward’s property from state and giving guardian authority to receive said property or sue for same in his own name, such guardian could not lawfully enter into contract fixing compensation, and receive thereunder moneys awarded by industrial accident board [now industrial commission]. In re Bones, 48 Idaho 85, 280 P. 223 (1929). Where a janitor and his wife both worked for a school district, and the wife was killed, a minor child was entitled to the minimum award of $6.00 per week for the death of its mother. Larson v. Independent Sch. Dist. No. 11-J, 53 Idaho 49, 22 P.2d 299 (1933).

Widow’s death or remarriage did not affect or impair the right of minors to receive compensation for the full period prescribed by statute. Hiebert v. Howell, 59 Idaho 591, 85 P.2d 699 (1938).

If the mother of minor children neglected to make application for compensation where the father of the children had been killed, or even allowed the statute of limitations to run against her claim, the minors would still have had a right to petition for an award. Hiebert v. Howell, 59 Idaho 591, 85 P.2d 699 (1938).

Where an employee was killed and his dependent wife and children were nonresidents of the state of Idaho, the widow may have prosecuted the claim for and on behalf of herself and the nonresident minor children, and it was not necessary, in order to recover compensation, that such minors be represented by a guardian or a guardian ad litem. Hiebert v. Howell, 59 Idaho 591, 85 P.2d 699 (1938).

The compensation act contemplated the award to the mother for herself and minor children, which, in the sound discretion of the industrial accident board [now industrial commission], might all be paid to the widow and mother or be segregated, part to the mother and part to the children. In case of an award to the mother for herself and children, she might have collected it as it fell due, and the employer and insurance carrier were discharged pro tanto as each payment was made, but in case of separate awards, a guardian had to be appointed or designated to collect and disburse the minors’ share of the award. Hiebert v. Howell, 59 Idaho 591, 85 P.2d 699 (1938).

The minor children always had an interest in the award, such as would at any time give them a legal standing before the industrial accident board [now industrial commission]; it was the duty of the courts to protect their interest in the compensation, and if an award were made to the mother for their benefit, and it should appear later that she was dissipating the fund and not using any of it for their benefit, and was neglecting them, the minors would have an undoubted right to petition the board for an order directing their share of the compensation to be paid to a guardian for their use and benefit. Hiebert v. Howell, 59 Idaho 591, 85 P.2d 699 (1938).

Service of notice of appeal by employer on widow and her attorney was sufficient notice to minor children of deceased employee and widow, since widow was authorized representative of the children. Mahon v. Pocatello, 75 Idaho 166, 269 P.2d 1075 (1954).

Minor children were entitled to payment of workmen’s compensation benefits growing out of the death of their father in covered employment even if the children had been legally adopted by a married couple. In re Jones, 84 Idaho 327, 372 P.2d 406 (1962).

Claim of State.

In the case of death, where there were no dependents within the meaning of the law, the state, as the sovereign or parens patriae, asserted the right to recover for such death. Stample v. Idaho Power Co., 92 Idaho 763, 450 P.2d 610 (1969).

Classification of Benefits.

Where the wife of a janitor of a school district, who assisted him, was killed, it was proper to award funeral expenses. Larson v. Independent Sch. Dist. No. 11-J, 53 Idaho 49, 22 P.2d 299 (1933). A workman died as a result of being bitten by ticks. The administrator of his estate was entitled to expenses of medical attendance, hospital services and funeral expenses. If he left no dependents the state was entitled to an award payable to the state insurance fund. Long v. State Ins. Fund, 60 Idaho 257, 90 P.2d 973 (1939).

There were three classes of compensation in case of death: (1) Personal compensation to employee or his dependents, or where there were none, to the state; (2) hospital and medical expenses; (3) burial expenses. State ex rel. Wright v. C.C. Anderson Co., 65 Idaho 400, 145 P.2d 237 (1944).

In the event of death of an employee arising out of and in the course of his employment, there were three general classes of benefits designated as compensation, to-wit: Payment of personal compensation to the employee and his dependents; payment of hospital, medical and burial expenses; and when there were no dependents, payment of a lump sum to the state. Gifford v. Nottingham, 68 Idaho 330, 193 P.2d 831 (1948).

Death after Award.

Where an employee was injured and thereafter died, but after the injury or before his death he received compensation, and he left no dependents, then the amount of compensation paid him in the interim between the injury and death would be deducted from the $1000 due the state. State ex rel. Wright v. Potlatch Forests, Inc., 60 Idaho 797, 97 P.2d 394 (1939).

The right for compensation for specific indemnity for an injury survived the death of the employee from other reasons, because it was “liquidated damages” inuring to the benefit of the employee and became a part of his estate. Mahoney v. Payette, 64 Idaho 443, 133 P.2d 927 (1943).

Compensation payments to injured workman before death were deductible from death benefits of dependents and of state. State ex rel. Wright v. C.C. Anderson Co., 65 Idaho 400, 145 P.2d 237 (1944).

Parents.

It was not a sufficient ground for denying relief to a parent or grandparent to show that he could have existed, or lived in a simpler and less comfortable manner, without the aid of the assistance rendered. In such case it was proper to consider and determine whether the aid given and contributions made were devoted, directly or indirectly, to the support and maintenance of the parent or grandparent, and whether they enabled such parent or grandparent to live more comfortably and enjoy life a little better than he could have done without such assistance. Miller v. G.L. Arnett & Son, 58 Idaho 420, 74 P.2d 177 (1937).

Where evidence showed that infant employee turned all his earnings over to his widowed mother, a partial dependency award to the mother was warranted even though the mother was temporarily employed at good wages. Anderson v. Woesner, 66 Idaho 441, 159 P.2d 899 (1944).

Scope of Section.

The statute providing death benefits related to benefits payable to, or for the benefit of, dependents of an employee who had lost his life, by accident arising out of and in the course of his employment. McRae v. School Dist. No. 23, 56 Idaho 384, 55 P.2d 724 (1936).

One whose employment brought him within the scope and benefits of the law was entitled to compensation for loss of earning capacity due to injury by accident arising out of, and in the course of, his employment, and one who was dependent upon such employee at the time of the accident, as provided for by statute, if the employee died as a result of the accident, was entitled to compensation for loss of support due to the death, but was not entitled to compensation for loss of earning capacity of the employee during his lifetime. Rand v. Lafferty Transp. Co., 60 Idaho 507, 92 P.2d 786 (1939). An award for an accrued claim by employee’s administrator was not res judicata of claim by employee’s dependents. Linder v. Payette, 64 Idaho 656, 135 P.2d 440 (1943).

Compiler’s Notes.

The bracketed reference “72-412” in this section was inserted by the compiler to correct the enacting legislation.

Am. Jur. 2d.

§ 72-414. Apportionment benefits between classes.

In case there are two (2) or more classes of persons entitled to compensation under section 72-413[, Idaho Code], and the apportionment of such compensation as above provided, would result in injustice, the commission may, in its discretion, modify the apportionment to meet the requirements of the case.

History.

I.C.,§ 72-414, as added by 1971, ch. 124, § 3, p. 422.

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Compiler’s Notes.

The bracketed insertions of “Idaho Code” were added by the compiler to conform to the statutory citation style.

Paragraphs (4) and (5) of§ 72-410, referred to near the end of this section, were renumbered as paragraphs (3) and (4), respectively, by the amendment of that section by S.L. 1989, ch. 194, § 1.

Cross References.

Computing death benefits,§§ 72-413, 72-414.

Amendments.

The 2008 amendment, by ch. 369, rewrote subsection (7), which formerly read: “In the case of volunteer firemen, police and civil defense members or trainees, the income benefits shall be based on the average weekly wage in their regular employment.”

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

The term “this law” in the introductory paragraph refers to S.L. 1971, chapter 124, which is generally compiled as§§ 72-101 to 72-805 and 72-1365.

Computation Method.

Where, because of the shortness of time of the injured claimant’s employment, or from the nature of the employment, a rate of average weekly earnings cannot be practicably determined, a method for computation is provided by this section. However, where it appeared that the referee for the commission did not take into consideration this method of computation, the cause would be remanded back to the commission to again examine the issue. Iverson v. Farming, 103 Idaho 527, 650 P.2d 669 (1982).

— Hourly Wage.

Where agreement between claimant and the industrial special indemnity fund stated that claimant would be paid monthly benefits at the statutory rate and recited claimant’s hourly wage at $5.06 per hour, and, furthermore, the agreement explicitly stated that “no portion is a mere recital,” the industrial commission correctly determined that the hourly wage recited in the agreement was the base rate to be used in computing claimant’s average weekly wage; if claimant believed that his hourly wage was something other than the $5.06 amount, the time to have raised this issue was during the settlement process or by way of a motion for rehearing or reconsideration. Drake v. State, Indus. Special Indemnity Fund, 128 Idaho 880, 920 P.2d 397 (1996). Paragraph (4)(a) calculates an employee’s weekly wage rate by splitting into four 13 week periods the employee’s wages earned in the 52 weeks previous to the injury; the wage period that is most favorable to the employee is then used in computing the employee’s benefits. Hoskins v. Circle A Constr., Inc., 138 Idaho 336, 63 P.3d 462 (2003).

Concurrent Employment.

Subdivision (9) of this section clearly contemplates the inclusion of a claimant’s earnings from part-time employment in calculating his preinjury wages or income, and since there was no contention that the employer liable for compensation was unaware of the claimant’s two part-time positions, the earnings from those part-time positions were properly included by the commission in its determination of the claimant’s total preinjury annual income. Baldner v. Bennett’s, Inc., 103 Idaho 458, 649 P.2d 1214 (1982).

Idaho industrial commission properly determined under§ 72-212(7) and subdivision (9) of this section that the claimant’s side business should not be determined in the computation of the claimant’s total temporary disability benefits. Hoskins v. Circle A Constr., Inc., 138 Idaho 336, 63 P.3d 462 (2003).

Permanent Physical Disability.

This section is used to calculate the rate at which income benefits are paid, which is better suited to mathematical calculation, but when evaluating a claimant’s permanent physical disability, the industrial commission is required to consider the factors articulated in§ 72-425 and cannot rely solely upon mathematical calculation. Vassar v. J.R. Simplot Co., 134 Idaho 495, 5 P.3d 475 (2000).

Decisions Under Prior Law

Average Weekly Wages.

Where a report of a school district fixed the compensation of the janitor’s wife at $35.00 per month “plus room, heat, and light,” she was receiving more than the minimum wage essential to an award of $6.00 per week, and the evidence of the work actually performed by the janitor’s wife, and the wages paid by the school district, coupled with such statement of the school board, justified the award of $6.00 per week to a minor child by the industrial accident board. Larson v. Independent Sch. Dist. No. 11-J, 53 Idaho 49, 22 P.2d 299 (1933). Since legislature intended the meaning as defined in this section for the term “average weekly wages” referred to in§ 72-310 (see§ 72-408) and the provisions in this section for 36 times hourly rate or 4 1/2 times the day rate as the basis of calculating amount of compensation was applicable to part-time employee, board’s award of $37.00 per week as compensation to the part-time employee who had average hourly income of $2.75 was correct. Nelson v. Bogus Basin Recreational Ass’n, 94 Idaho 175, 484 P.2d 290 (1971).

Construction.

Reasonable intention of act as to amount of compensation was average weekly wages computed in such manner as best calculated to give average weekly earnings of workman, based on wages paid in industry for kind of services he was rendering. Flynn v. Carson, 42 Idaho 141, 243 P. 818 (1926).

Duty of Board to Find.

Where it appeared that the average weekly wage had not been proven, but notwithstanding this fact compensation was arbitrarily fixed and allowed, the order would be reversed and the case remanded to the industrial accident board [now industrial commission] with directions to permit the employee to submit evidence supplying the deficiency and to make findings of fact and conclusions of law in conformity with the evidence. Feuling v. Farmers’ Co-op. Ditch Co., 54 Idaho 326, 31 P.2d 683 (1934).

Where there was not evidence to show the employee’s average weekly earnings for a year previous to his death, a judgment awarding compensation would be reversed and remanded for the purpose of taking testimony to establish the amount of such earnings. Smith v. McHan Hdwe. Co., 56 Idaho 43, 48 P.2d 1102 (1935).

Part-Time Employment.

When employee worked only one hour per week as extra hand, measure of compensation for his death was average weekly wages for constant employment in his line and not amount received for his one hour work each week. Flynn v. Carson, 42 Idaho 141, 243 P. 818 (1926).

The proper basis was the estimation of an employee’s earnings who worked only on an average of one-half a year, whose employer likewise operated for the same period, on a weekly basis of 1/52 of the employee’s yearly earnings. Sugars v. Ohio Match Co., 53 Idaho 408, 23 P.2d 743 (1933).

Yearly average wage was applied where a carpenter was hired to apply eleven squares of shingles at a rate of $2.00 per square, in computing the amount of weekly compensation. O’Niel v. Madison Lumber & Mill Co., 61 Idaho 546, 105 P.2d 194 (1940).

Temporary Worker.

Where disability claimant was a temporary construction worker hired out of his union hall for a small job and, thus, was paid less than the normal hourly wage paid to union members, claimant was not entitled to be compensated for his injury based on what he might have been paid if hired for a different job. Ragan v. Kenaston Corp., 126 Idaho 152, 879 P.2d 1085 (1994).

ALR.

§ 72-420. Compensation to state when dependency not claimed or proved.

In case no claim for compensation is made by a dependent of a deceased employee and filed with the commission within one (1) year after the death, or in case a claim is made and filed within such year and no dependency proven, the employer shall pay into the state treasury the sum of ten thousand dollars ($10,000) to be deposited in the industrial special indemnity account [fund].

History.

I.C.,§ 72-420, as added by 1981, ch. 261, § 7, p. 552; am. 1986, ch. 93, § 4, p. 270.

Prior Laws.

Former§ 70-420 , which comprised I.C.,§ 72-420, as added by 1971, ch. 124, § 3, p. 422, was repealed by S.L. 1978, ch. 264, § 22.

Compiler’s Notes.

The bracketed insertion at the end of the section was added by the compiler to correct the name of the referenced fund. See§ 72-323.

Prior Laws.

Former§ 72-421, which comprised I.C. 72-421 as added by 1971, ch. 124, § 3, p. 422, was repealed by S.L. 1978, ch. 264, § 22.

Compiler’s Notes.

The term “this act” near the end of the section refers to S.L. 1982, chapter 231, which is codified as§§ 72-102, 72-408, 72-421, 72-425, and 72-430.

Cross References.

“Permanent physical impairment” defined,§ 72-332.

Construction.

“Permanent impairment,” as defined in this section and incorporated by reference in§ 72-332 as “permanent physical impairment” is confined to physical disabilities; thus, a preexisting personality disorder, consisting of hypersensitivity to potential rejection, unwillingness to enter relationships, depression, humiliation, anxiety, anger, and impaired ability to function socially, but manifesting no bodily symptoms, was not a permanent physical impairment within the meaning of§ 72-332 and this section, and the trial court erred in characterizing claimant’s personality disorder as a preexisting physical impairment. Hartley v. Miller-Stephan, 107 Idaho 688, 692 P.2d 332 (1984).

Impairment Rating.

In a workers’ compensation case, there was no error in finding a 1 percent permanent partial impairment due to a knee injury where the Idaho industrial commission was allowed to rely on a doctor’s rating in a deposition, despite sustaining an objection to the impairment rating at trial; moreover, the doctor was familiar with a benefit claimant’s condition, he performed surgery on the claimant’s torn meniscus, and his chart notes indicate the claimant’s torn meniscus had an impairment rating. The claimant did not show the doctor’s actual impairment rating, which at the time of the deposition was testimony the claimant solicited, lacked reliability or probative value such that the commission properly sustained an objection to this evidence. Page v. McCain Foods, Inc., 145 Idaho 302, 179 P.3d 265 (2008).

Substantial evidence supported a permanent partial disability rating: the industrial commission properly considered the claimant’s limited language skills, the labor market, and his chronic pain in determining his percentage of impairment and found that he was not an odd lot worker. Funes v. Aardema Dairy, 150 Idaho 7, 244 P.3d 151 (2010).

Impairment Versus Disability.

Although the term “impairment award” has crept into the vernacular of the workmen’s compensation bar, Idaho’s workmen’s compensation law only provides for an award of income benefits based on disability, not impairment. A “permanent impairment” as the definitions themselves make clear, is simply a component of a “permanent disability.” Mayer v. TPC Holdings, Inc., 160 Idaho 223, 370 P.3d 738 (2016).

A worker was not entitled to a separate award for permanent partial disability and partial permanent impairment, because there was not a separate avenue for recovery of both impairment and disability under the worker’s compensation act, as impairment is included in the determination of disability. Oliveros v. Rule Steel Tanks, Inc., — Idaho —, 438 P.3d 291 (2019).

While impairment and disability are separately defined, there is no separate statutory mechanism authorizing separate awards for income benefits based on a claimant’s partial permanent impairment and his permanent partial disability ratings. Any monies paid based on impairment are, in actuality, payments for disability, and any payments or awards made before the final disability award are more accurately characterized as disability payments. Oliveros v. Rule Steel Tanks, Inc., — Idaho —, 438 P.3d 291 (2019).

Industrial Special Indemnity Fund.

In order to establish industrial special indemnity fund (ISIF) liability under§ 72-332, a claimant must prove that, prior to incurring an injury or occupational disease, he was suffering from a permanent physical impairment as defined in this section, with the further requirement under subsection (2) of§ 72-332, that the impairment be of a seriousness to hinder or present an obstacle to claimant obtaining employment or re-employment. Langley v. State, Indus. Special Indem. Fund, 126 Idaho 781, 890 P.2d 732 (1995).

Legislative Intent.

Since the statutory definitions of “permanent physical impairment” under§ 72-332 (prior to the 1978 and 1981 amendments), “permanent impairment” under this section and “permanent disability” under§ 72-423 were passed simultaneously by the legislature, it can be concluded that the legislature intended that they define three different, but related, classifications. Curtis v. Shoshone County Sheriff’s Office, 102 Idaho 300, 629 P.2d 696 (1981).

Modification of Agreement.

Where worker wanted modification of compensation agreement, and where agreement blurred the distinction between impairment and disability, commission did not err in refusing to reopen the case concerning worker’s previous injury; worker had no basis to establish different percentage figures for impairment and disability since there was no evidence that the degree of impairment in 1979 was greater than 20%, since worker’s hip was relatively asymptomatic after the 1979 surgery, and since the record was silent as to any nonmedical factors, following the 1979 surgery, that could have caused the disability rating to deviate from the medically determined degree of impairment. Urry v. Walker & Fox Masonry Contractors, 115 Idaho 750, 769 P.2d 1122 (1989).

Odd-lot Status.

Where the plaintiff did not testify as to the types of lighter duty work that he was able to perform or the availability of such jobs in his geographical area, the record thus supported the commission’s findings that the plaintiff did not meet his burden of establishing odd-lot status in order to qualify for total and permanent disability. Dehlbom v. State, Indus. Special Indem. Fund, 129 Idaho 579, 930 P.2d 1021 (1997).

An odd lot employee is someone who is so injured that he can perform no services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist, such that he may well be classified as totally disabled. Funes v. Aardema Dairy, 150 Idaho 7, 244 P.3d 151 (2010).

Pain.

Pain can produce “functional . . . loss” under this section; since it relates to functional loss, pain is a medical factor to be considered in determining impairment itself. When a physician is satisfied that pain is genuine, it can be used—like pathology or loss of structural integrity—to measure the extent of an impaired function. Urry v. Walker & Fox Masonry Contractors, 115 Idaho 750, 769 P.2d 1122 (1989).

Where commission’s decision appeared to link pain issue with disability rather than impairment, and where commission’s finding on impairment may have reflected a misapprehension of the governing law, remand was required. Urry v. Walker & Fox Masonry Contractors, 115 Idaho 750, 769 P.2d 1122 (1989).

Preexisting Permanent Impairment.

The basic definition of permanent impairment is “any anatomic or functional abnormality or loss” and claimant’s brachysyndactylism was a preexisting physical impairment with this definition. Hoye v. Daw Forest Prods., Inc., 125 Idaho 582, 873 P.2d 836 (1994).

An impairment, the claim for benefits on which is an open, unresolved, and viable claim at the time of a subsequent injury, and which had not reached medical stability at the time of the subsequent injury, does not constitute a preexisting injury under the worker’s compensation statutes. Smith v. J.B. Parson Co., 127 Idaho 937, 908 P.2d 1244 (1996).

Progressive Impairment.

Where claimant suffered a series of injuries, and employer was held responsible for the portion of an earlier injury that was caused by industrial accident, the claim for which was resolved before apportionment was determined and before a classification of “preexisting impairment” could be made, but that injury was medically stable before a subsequent injury was incurred, the industrial commission was able to make a determination that the earlier injury was ultimately preexisting. Quincy v. Quincy, 136 Idaho 1, 27 P.3d 410 (2001). Progressive Impairment.

Where both physicians testified that the claimant’s condition was progressive, the industrial commission could not assess the claimant’s permanent partial disability based solely upon his present level of impairment and erroneously relinquished jurisdiction over the future determination of the claimant’s permanent disability. Reynolds v. Browning Ferris Indus., 113 Idaho 965, 751 P.2d 113 (1988).

Teeth.

The loss of front teeth by an employee who had been subsequently equipped with false teeth was, as a matter of law, a “physical impairment,” and the injury resulting in the loss of teeth was compensable without necessity of other evidence to establish the fact that deprivation of teeth had resulted in substantial loss to employee in his future work. Olson v. Union Pac. R.R., 62 Idaho 423, 112 P.2d 1005 (1941).

Cross References.

“Permanent physical impairment” defined,§ 72-332.

Consolidation of Claims.

The Idaho industrial commission properly consolidated an employee’s knee injury claims, where he injured the same knee, in the same way, doing the same type of activity, while working for two different employers, two and a half years apart. Because the worker’s 2011 claim was still open when he was reinjured in 2014, there was no impediment to the commission considering both claims at the same time. McGivney v. Aerocet, Inc., — Idaho —, 443 P.3d 241 (2019).

Evidence.

Since the degree of permanent disability was a factual question committed to the particular expertise of the commission, there was no error in the commission’s action in considering a physician’s answer to an interrogatory concerning the percentage of claimant’s permanent partial disability over employer’s objection to the physician’s failure to separate the effect of a preexisting injury from the effect of the industrial accident. Thom v. Callahan, 97 Idaho 151, 540 P.2d 1330 (1975).

Impairment Versus Disability.

Industrial commission’s determination that the claimant had failed to prove that he had a disability in excess of his impairment was not clearly erroneous where the claimant’s treating physician, who had treated him over a period of years, did not assign any limitations or restrictions. Fairchild v. Ky. Fried Chicken, 159 Idaho 208, 358 P.3d 769 (2015). Impairment Versus Disability.

Although the term “impairment award” has crept into the vernacular of the workmen’s compensation bar, Idaho’s workmen’s compensation law only provides for an award of income benefits based on disability, not impairment. A “permanent impairment” as the definitions themselves make clear, is simply a component of a “permanent disability.” Mayer v. TPC Holdings, Inc., 160 Idaho 223, 370 P.3d 738 (2016).

While impairment and disability are separately defined, there is no separate statutory mechanism authorizing separate awards for income benefits based on a claimant’s partial permanent impairment and his permanent partial disability ratings. Any monies paid based on impairment are, in actuality, payments for disability, and any payments or awards made before the final disability award are more accurately characterized as disability payments. Oliveros v. Rule Steel Tanks, Inc., — Idaho —, 438 P.3d 291 (2019).

Legislative Intent.

Since the statutory definitions of “permanent physical impairment” under§ 72-332 (prior to the 1978 and 1981 amendments), “permanent impairment” under§ 72-422 and “permanent disability” under this section were passed simultaneously by the legislature, it can be concluded that the legislature intended that they define three different, but related, classifications. Curtis v. Shoshone County Sheriff’s Office, 102 Idaho 300, 629 P.2d 696 (1981).

Odd-lot Status.

Where claimant sought permanent disability under the odd-lot status and there was conflict between testimony of claimant’s vocational counselor that claimant was not capable of performing any job and the testimony of company’s vocational expert that claimant was suitable for several types of jobs, since commission found the testimony of company’s vocational expert to be more credible and persuasive, claimant’s claim was denied and claimant’s argument that company expert’s evaluation should not be persuasive because there are no specific jobs available in the categories for which she found him to be qualified was without merit, for it has never been held that unless a prima facie case of odd-lot disability is established, an employer or ISIF must prove that there is a specific job in existence in order to defeat a claim for total or permanent disability. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

Where claimant for total disability failed to show that he had attempted other types of employment, that he did little to find work after leaving company, met with his vocational counselor only once, inquired about only a few jobs, and never sought employment in the area, and there was a conflict in the evidence about whether attempts to find employment would have been futile, he failed to establish odd-lot worker status. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

An employee may prove total disability under the odd-lot worker doctrine in one of three ways: 1. by showing that he has attempted other types of employment without success; 2. by showing that he or vocational counselors or employment agencies on his or her behalf have searched for other work and other work is not available; 3. by showing that any efforts to find suitable employment would be futile. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997). Where claimant sought compensation for total and permanent disability under the definition of odd-lot worker and the evidence of claimant’s vocational expert was that claimant was not capable of performing any type of job, but company’s expert was of the opinion that even with claimant’s partial disability there were still jobs he could perform, the question of whether claimant was an odd-lot worker became a question of fact for the commission to decide. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

Since the plaintiff did not testify as to the types of lighter duty work that he was able to perform or the availability of such jobs in his geographical area, the record thus supported the commission’s findings that the plaintiff did not meet his burden of establishing odd-lot status in order to establish permanent and total disability. Dehlbom v. State, Indus. Special Indem. Fund, 129 Idaho 579, 930 P.2d 1021 (1997).

The burden of proving a prima facie case of odd-lot status is on the claimant; however, where a dispute exists as to the extent of disability, the type of work the claimant is capable of performing, and the effort made to find suitable employment, whether the claimant is odd-lot status is a factual determination within the discretion of the commission. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

A claimant may establish a prima facie case of odd-lot disability status as a matter of law only if the evidence is undisputed and is reasonably susceptible to only one interpretation. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

An odd lot employee is someone who is so injured that he can perform no services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist, such that he may well be classified as totally disabled. Funes v. Aardema Dairy, 150 Idaho 7, 244 P.3d 151 (2010).

Permanent Total Disability.

Where commission found that claimant suffered from a disability of 85% of the whole person and the finding was supported by competent evidence and not disputed by claimant, claimant failed to establish that he was totally and permanently disabled since his disability rating was less than 100%. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

If the commission finds that the claimant has met his or her burden of proving 100% disability via the claimant’s medical impairment and pertinent nonmedical facts, total and permanent disability has been established. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

Where a claimant demonstrates that he fits within the definition of an odd-lot worker he has proven total and permanent disability. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

Industrial commission did not have to specify the specific standard of review it utilized when it gave detailed explanations for its findings and conclusions. Ball v. Daw Forest Prods. Co., 136 Idaho 155, 30 P.3d 933 (2001).

Preexisting Injury.

Progressive Impairment.

In a workers’ compensation case, a remand was necessary because there was no clear indication as to a benefit claimant’s permanent disability in light of the accident and her pre-existing conditions since the Idaho industrial commission failed to articulate both steps in making its apportionment after determining that there was a 5 percent permanent disability. The commission was required to evaluate the claimant’s disability according to the factors in§ 72-430(1), make findings as to her permanent disability in light of all of her physical impairments, including pre-existing conditions, and then apportion the amount of the permanent disability attributable to the claimant’s accident. Page v. McCain Foods, Inc., 145 Idaho 302, 179 P.3d 265 (2008). Progressive Impairment.

Where both physicians testified that the claimant’s condition was progressive, the industrial commission could not assess the claimant’s permanent partial disability based solely upon his present level of impairment and erroneously relinquished jurisdiction over the future determination of the claimant’s permanent disability. Reynolds v. Browning Ferris Indus., 113 Idaho 965, 751 P.2d 113 (1988).

Purpose.

The primary purpose of an award of permanent partial disability benefits is to compensate the claimant for his loss of earning capacity or his reduced ability to engage in gainful activity. Baldner v. Bennett’s, Inc., 103 Idaho 458, 649 P.2d 1214 (1982).

Test for Determining Permanent Disability.

The test for determining whether a claimant has suffered a permanent disability greater than permanent impairment is whether the physical impairment, taken in conjunction with nonmedical factors, has reduced the claimant’s capacity for gainful activity. Graybill v. Swift & Co., 115 Idaho 293, 766 P.2d 763 (1988).

Substantial evidence supported a permanent partial disability rating: the industrial commission properly considered the claimant’s limited language skills, the labor market, and his chronic pain in determining his percentage of impairment and found that he was not an odd lot worker. Funes v. Aardema Dairy, 150 Idaho 7, 244 P.3d 151 (2010).

Compiler’s Notes.

The word enclosed in parentheses so appeared in the law as enacted.

Benefits.

Income benefits payable under the workmen’s compensation law, with the exception of retraining benefits, are based upon disability, either temporary or permanent, but not merely impairment. Fowler v. City of Rexburg, 116 Idaho 1, 773 P.2d 269 (1988).

While in some cases nonmedical factors will not increase the permanent disability rating over the amount of the permanent impairment rating, the ultimate award of income benefits is based upon the permanent disability rating, not merely the impairment rating. Fowler v. City of Rexburg, 116 Idaho 1, 773 P.2d 269 (1988).

While impairment and disability are separately defined, there is no separate statutory mechanism authorizing separate awards for income benefits based on a claimant’s partial permanent impairment and his permanent partial disability ratings. Any monies paid based on impairment are, in actuality, payments for disability, and any payments or awards made before the final disability award are more accurately characterized as disability payments. Oliveros v. Rule Steel Tanks, Inc., — Idaho —, 438 P.3d 291 (2019).

Evidence.

Where the evidence showed that the claimant, following his impairment and removal from the labor market as an ironworker due to a back injury, had educated and continued to educate himself for the purpose of teaching welding at a state university, and that the defendant employer had failed to establish that the claimant could earn more than he was earning in that teaching position, the commission properly found that the claimant’s 44% decrease in his wage-earning capacity from what he earned as an ironworker to what he earned as a teacher fully supported its award of a permanent partial disability equal to 44% of a whole man as a result of the back injury, even though the claimant’s permanent physical impairment rating was only equivalent to 15% of the whole man. Baldner v. Bennett’s, Inc., 103 Idaho 458, 649 P.2d 1214 (1982). Medical testimony that claimant had actual physical impairment of 8% and that she also suffered a 7% impairment caused by conversion reaction hysteria, which caused symptoms of the physical injury to continue even after the physical damage was repaired, supported commission finding of 15% disability rating and denial of total and permanent disability claim. Bartel v. J.R. Simplot Co., 106 Idaho 174, 677 P.2d 487 (1984).

There was substantial and competent evidence to support the industrial commission’s rating of claimant’s permanent partial impairment. Nelson v. David L. Hill Logging, 124 Idaho 855, 865 P.2d 946 (1993).

Evidence of the award of temporary use of a hospital bed was not inconsistent with the determination that there was no permanent impairment from the accident in issue. Clark v. City of Lewiston, 133 Idaho 723, 992 P.2d 172 (1999).

In a workers’ compensation case, there was no error in finding a 1 percent permanent partial impairment due to a knee injury where the Idaho industrial commission was allowed to rely on a doctor’s rating in a deposition, despite sustaining an objection to the impairment rating at trial; moreover, the doctor was familiar with a benefit claimant’s condition, he performed surgery on the claimant’s torn meniscus, and his chart notes indicate the claimant’s torn meniscus had an impairment rating. The claimant did not show the doctor’s actual impairment rating, which at the time of the deposition was testimony the claimant solicited, lacked reliability or probative value such that the commission properly sustained an objection to this evidence. Page v. McCain Foods, Inc., 145 Idaho 302, 179 P.3d 265 (2008).

Industrial commission’s determination that the claimant had failed to prove that he had a disability in excess of his impairment was not clearly erroneous where the claimant’s treating physician, who had treated him for a period of years, did not assign any limitations or restrictions. Fairchild v. Ky. Fried Chicken, 159 Idaho 208, 358 P.3d 769 (2015).

Employer/surety was not required to establish an impairment rating as an element of its case prior to the initial industrial commission’s decision, as the commission can require the presentation of additional evidence to decide that issue. Green v. Green, 160 Idaho 275, 371 P.3d 329 (2016).

Factors Considered.

Since§ 72-425 required that nonmedical factors be considered in arriving at a permanent disability rating, and since the referee’s finding of fact stated that nonmedical factors were not considered, it was clear that the award provided by the compensation agreement was based only upon a permanent impairment rating; however, that fact alone does not necessarily indicate that the award was for permanent impairment only. Whether the award was for permanent impairment or permanent disability is dependent on the actual agreement of the parties. Woodvine v. Triangle Dairy, Inc., 106 Idaho 716, 682 P.2d 1263 (1984).

Where the evidence showed that the claimant suffered a heart attack during the course of his employment, but the only evidence presented to the industrial commission in support of its determination that the claimant suffered a permanent partial impairment of 50 percent of the whole person failed to consider a preexisting heart condition, such determination was not supported by the evidence. Johnson v. Amalgamated Sugar Co., 108 Idaho 765, 702 P.2d 803 (1985). This section clearly suggests that subjective factors of pain and the claimant’s unique living conditions and lifestyle should be taken into account in arriving at a permanent impairment evaluation. Poss v. Meeker Mach. Shop, 109 Idaho 920, 712 P.2d 621 (1985).

Where the impairment evaluation performed by the medical experts pursuant to this section included such subjective factors as pain, it was unnecessary for the commission to add a further disability award for pain pursuant to§ 72-425. Graybill v. Swift & Co., 115 Idaho 293, 766 P.2d 763 (1988).

Medical Appraisal.

Industrial commission need not accept the opinion of a claimant’s treating physician regarding pain and impairment despite the fact that evaluation of permanent impairment is a “medical appraisal” since the words “medical appraisal” cannot obscure the fundamental principle that the industrial commission, rather than the claimant’s treating physician, is the factfinder and the ultimate evaluator of impairment. Urry v. Walker & Fox Masonry Contractors, 115 Idaho 750, 769 P.2d 1122 (1989).

In making the “medical appraisal” of an injury’s effect on daily living activities, there is a potentially wide spectrum of material and relevant evidence worthy of consideration, beyond the particular opinion of a physician asked to give an impairment rating. Such evidence, whether it tends to refute or establish the existence of an impairment, has a place in the commission’s effort to ascertain truth. Moreover, evidence impeaching a claimant’s credibility, though coming from non-medical sources, need not be ignored in a permanent impairment hearing. Such evidence is particularly relevant where the claimant relies heavily on complaints of pain in asserting impairment. Soto v. J.R. Simplot, 126 Idaho 536, 887 P.2d 1043 (1994).

Medical Experts.

A physician’s opinion as to the extent of impairment is advisory only and is not binding upon the commission. Baker v. Louisiana Pac. Corp., 123 Idaho 799, 853 P.2d 544 (1993).

The supreme court will defer to the commission’s finding as to the credibility of medical experts. Baker v. Louisiana Pac. Corp., 123 Idaho 799, 853 P.2d 544 (1993).

Physician opinions are not binding on the commission, but are advisory. To be sure, the expert opinion of a physician who gives a permanent impairment rating pursuant to AMA guidelines may prove more helpful to the commission or worthy of greater weight than that of a treating physician not asked to give an opinion on impairment. It does not follow, however, that reliable records and opinions of treating physicians are worthy of no consideration. It would be an improper invasion into the factfinding discretion of the industrial commission for the courts hold that the commission must always give greater weight to one party’s medical experts over the other. Soto v. J.R. Simplot, 126 Idaho 536, 887 P.2d 1043 (1994).

The commission, in conducting a permanent impairment evaluation, is not limited to record or opinion evidence of a physician requested to give a permanent impairment rating. Soto v. J.R. Simplot, 126 Idaho 536, 887 P.2d 1043 (1994).

Compiler’s Notes.

The word enclosed in parentheses so appeared in the law as enacted.

Ability to Engage in Gainful Activity.

Employee provided no authority for her claim that either “wages” or “wage earning capacity” as used in§ 72-102(33), and “ability to engage in gainful activity” as used in this section are synonymous. Vassar v. J.R. Simplot Co., 134 Idaho 495, 5 P.3d 475 (2000).

Workers’ compensation commission erred in finding that a claimant could pursue a permanent disability claim without reference to his status as an undocumented immigrant. Although the plain language of the workers’ compensation act establishes that unlawfully employed persons are entitled to workers’ compensation coverage, the plain wording of§ 72-430 and this section require that all personal and economic circumstances that diminish the ability of the claimant to compete in an open labor market be considered, including his status as an undocumented immigrant. Marquez v. Pierce Painting, Inc., 164 Idaho 59, 423 P.3d 1011 (2018).

Benefits.

Income benefits payable under the worker’s compensation law, with the exception of retraining benefits, are based upon disability, either temporary or permanent, but not merely impairment. Fowler v. City of Rexburg, 116 Idaho 1, 773 P.2d 269 (1988).

While in some cases nonmedical factors will not increase the permanent disability rating over the amount of the permanent impairment rating, the ultimate award of income benefits is based upon the permanent disability rating, not merely the impairment rating. Fowler v. City of Rexburg, 116 Idaho 1, 773 P.2d 269 (1988).

Consolidation of Claims.

The Idaho industrial commission properly consolidated an employee’s knee injury claims, where he injured the same knee, in the same way, doing the same type of activity, while working for two different employers, two and a half years apart. Because the worker’s 2011 claim was still open when he was reinjured in 2014, there was no impediment to the commission considering both claims at the same time. McGivney v. Aerocet, Inc., — Idaho —, 443 P.3d 241 (2019).

Equal Protection.

This section does not violate the equal protection provision of the state constitution,Idaho Const., Art. I, § 13, because it allows different awards dependent on the claimant’s age and sex. Murray v. Hecla Mining Co., 98 Idaho 688, 571 P.2d 334 (1977).

Evaluation of Permanent Disability.

In evaluating permanent disability under this section and§ 72-430, all physical impairments that were caused by the work-related injury and by all pre-existing impairments or physical conditions should be taken into account; otherwise, there would be no determination of disability that would permit an apportionment for pre-existing impairments under§§ 72-406 and 72-332. Horton v. Garrett Freightlines, 115 Idaho 912, 772 P.2d 119 (1989).

The permanent disability evaluation outlined in this section was the first in a two-step process that preceded the analysis to determine whether any liability for the claimant’s total permanent disability would be apportioned to the defendant indemnity fund. Eckhart v. State, Indus. Special Indem. Fund, 133 Idaho 260, 985 P.2d 685 (1999). The evaluation of permanent disability includes consideration of all physical impairments that were caused by the claimant’s work-related injury and pre-existing impairments or physical conditions. Eckhart v. State, Indus. Special Indem. Fund, 133 Idaho 260, 985 P.2d 685 (1999).

Evidence.

Since the degree of permanent disability was a factual question committed to the particular expertise of the commission, there was no error in the commission’s action in considering a physician’s answer to an interrogatory concerning the percentage of claimant’s permanent partial disability over employer’s objection to the physician’s failure to separate the effect of a preexisting injury from the effect of the industrial accident. Thom v. Callahan, 97 Idaho 151, 540 P.2d 1330 (1975).

Where a claimant fell into the “odd-lot” category of workers who are physically able to perform some work but are so handicapped that they will not be employed regularly in any well-known branch of the labor market, the statutory requirement that the commission consider the economic and social environment in which a claimant lives in evaluating his disability would necessitate the introduction of evidence that there was an actual job within a reasonable distance from the claimant’s home which he was able to perform or for which he could be trained and which he had a reasonable opportunity to obtain. Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 565 P.2d 1360 (1977).

If a claimant falls in the odd-lot category, it is improper for the commission to equate the rating of the claimant’s permanent impairment with its rating of his disability without explicit consideration of the types of employment the claimant can now perform. Francis v. Amalgamated Sugar Co., 98 Idaho 407, 565 P.2d 1364 (1977).

A witness who was generally familiar with the claimant’s physical condition and was experienced in the general area of industrial employment placement was competent to testify with respect to non-medical factors relevant to the claimant’s disability. Murray v. Hecla Mining Co., 98 Idaho 688, 571 P.2d 334 (1977).

Where there was substantial though conflicting evidence, both of claimant’s ability to work and the availability of work, including testimony that claimant could work for a full day at a time in a sedentary-type job, that the area was a healthy labor market, considered good for female workers, and that there were sedentary jobs with training available as turnover created them within the labor market, the industrial commission did not err in its finding of fact which precluded the application of the “odd-lot” classification. Reifsteck v. Lantern Motel & Cafe, 101 Idaho 699, 619 P.2d 1152 (1980).

Where the evidence showed that the claimant, following his impairment and removal from the labor market as an ironworker due to a back injury, had educated and continued to educate himself for the purpose of teaching welding at a state university, and that the defendant employer had failed to establish that the claimant could earn more than he was earning in that teaching position, the commission properly found that the claimant’s 44% decrease in his wage-earning capacity from what he earned as an ironworker to what he earned as a teacher fully supported its award of a permanent partial disability equal to 44% of a whole man as a result of the back injury, even though the claimant’s permanent physical impairment rating was only equivalent to 15% of the whole man. Baldner v. Bennett’s, Inc., 103 Idaho 458, 649 P.2d 1214 (1982). The industrial commission did not err in failing to find a permanent disability in excess of ten percent of the whole person, where the claimant made no concrete showing of disability greater than the permanent impairment rating of ten percent. Smith v. Payette County, 105 Idaho 618, 671 P.2d 1081 (1983).

Where the testimony of the claimant indicated pre-injury she was earning $3.40 or $3.45 per hour, and post-injury was earning $3.35 per hour, and her complaint of chronic back pain and inability to work beyond five hours per day were met with testimony that there was no anatomical cause for her pain, no physical evidence of injury, and that the large bulk of her complaints were independent of the effects of the injury and attributable to other factors, there was substantial competent evidence supporting the decision of the industrial commission that claimant suffered a permanent partial disability of five percent. Seese v. Ideal of Idaho, Inc., 110 Idaho 32, 714 P.2d 1 (1985).

There was sufficient evidence to support the commission’s finding of a 35% permanent partial disability in excess of impairment. Baker v. Louisiana Pac. Corp., 123 Idaho 799, 853 P.2d 544 (1993).

— Burden of Proof.

The burden of proof is upon the claimant to prove disability in excess of his impairment rating, although expert testimony on this issue need not be presented; the test for such determination is not whether the claimant is able to work at some employment, but rather whether the physical impairment, taken in conjunction with nonmedical factors, has reduced the claimant’s capacity for gainful activity. Seese v. Ideal of Idaho, Inc., 110 Idaho 32, 714 P.2d 1 (1985).

Where an employee failed to produce any substantial evidence bearing on the employee’s disability in excess of impairment, the court affirmed the commission’s order finding that the employee failed to meet her burden of proof. McCabe v. Jo-Ann Stores, Inc., 145 Idaho 91, 175 P.3d 780 (2007).

Industrial commission’s determination that the claimant had failed to prove that he had a disability in excess of his impairment was not clearly erroneous where the claimant’s treating physician, who had treated him over a period of time, did not assign any limitations or restrictions. Fairchild v. Ky. Fried Chicken, 159 Idaho 208, 358 P.3d 769 (2015).

— Pain.

Although medical panels did not specifically designate a portion of the impairment rating as based solely on pain, the reports of both panels clearly took into account claimant’s past complaints of pain; thus, there was competent evidence supporting the industrial commission’s finding that pain was a component of the impairment rating. Pomerinke v. Excel Trucking Transport, 124 Idaho 301, 859 P.2d 337 (1993).

— Work Provided by Sympathetic Employer.

Expert Testimony.

Where the industrial commission found that claimant’s later employment by department of parks was essentially the equivalent of work provided by a sympathetic employer or friend and this conclusion was supported by the record, the finding that claimant was odd-lot totally permanently disabled prior to her most recent injury and the total permanent disability did not result from combined effects was affirmed. Bybee v. State, Indus. Special Indemnity Fund, 129 Idaho 76, 921 P.2d 1200 (1996). Expert Testimony.

Although it is true that the burden of proof is upon the claimant to prove disability in excess of his impairment rating, the claimant is not required to present expert testimony as part of his case. Bennett v. Clark Hereford Ranch, 106 Idaho 438, 680 P.2d 539 (1984).

Failure to Include Impairments.

Where worker, after work-related accident which affected his right hip, had a later injury to his left hip, shoulders and back due to arthritis and spondylolisthesis, commission should have included the impairments to worker’s left hip, his shoulders, and his back in making its evaluation of the degree of his total and permanent disability since the conditions that caused these impairments existed at the time of the injury to worker’s right hip; whether any of these impairments led to liability of employer and its surety or the industrial special indemnity fund (ISIF) depended on apportionment under§§ 72-406 and 72-332. Horton v. Garrett Freightlines, 115 Idaho 912, 772 P.2d 119 (1989).

Findings.

The commission’s recitation that it has considered medical and nonmedical factors including the claimant’s age, sex, education, economic and social environment and training and usable skills in evaluating his disability is not a substitute for an explicit finding of what kind of suitable work is available to the claimant who is in the odd-lot category and such an explicit finding is required in that situation. Francis v. Amalgamated Sugar Co., 98 Idaho 407, 565 P.2d 1364 (1977).

The commission’s reliance, on the fact that claimant in an attempt to provide his own means of employment purchased a truck in order to become an independent truck driver, was misplaced in determining that he was not entitled to disability compensation additional to his medical impairment rating, since he lost the money in the six months of his attempt to become an independent truck driver; this is an economic factor which tended to show that he was disabled in excess of his medical impairment, not a factor negating such an award. Bennett v. Clark Hereford Ranch, 106 Idaho 438, 680 P.2d 539 (1984).

It was error on the part of the commission to look at one two-week earning period after the claimant’s accident and conclude that because the claimant was earning more in this period, if computed on a yearly basis, than he did before his accident that he necessarily did not suffer a loss in his earning capacity or in ability to engage in gainful activity. Bennett v. Clark Hereford Ranch, 106 Idaho 438, 680 P.2d 539 (1984).

Whether a claimant falls within the odd-lot category is a factual determination and it is the duty of the industrial commission to make this determination and the commission’s findings will not be set aside on appeal if based upon substantial and competent evidence; furthermore, it is the claimant’s burden to establish a prima facie case that he is a member of the odd-lot category. Rost v. J.R. Simplot Co., 106 Idaho 444, 680 P.2d 866 (1984).

Future Medical Care.

Where the employer progressively moved the claimant to less demanding jobs, until finally terminating his employment because of “physical incapacity,” the claimant suffered pain and discomfort to the point that he no longer wears his prosthesis even though he had the lipoma surgically removed from his stump, and the claimant had a low I.Q. and an eighth grade education, the industrial commission did not abuse its discretion by placing the claimant into the odd-lot category. Kindred v. Amalgamated Sugar Co., 114 Idaho 284, 756 P.2d 401 (1988). Future Medical Care.

Industrial commission did not err in entering a final disability award without retaining jurisdiction where the commission took into consideration future surgery in arriving at a disability rating. Hodges v. W.B. Savage Ranches, 116 Idaho 699, 778 P.2d 801 (1989).

In General.

The central focus of this section in determining whether to award total permanent disability benefits to the claimant is on the claimant’s ability to engage in gainful activity. Smith v. Payette County, 105 Idaho 618, 671 P.2d 1081 (1983).

Labor Market.

Employee’s labor market at the time of his disability hearing was the proper labor market to be used in evaluating the non-medical factors under§ 72-430 and in determining a claimant’s odd-lot worker status. Brown v. Home Depot, 152 Idaho 605, 272 P.3d 577 (2012).

Lost Earning Capacity.

In determining a claimant’s permanent partial disability, the industrial commission is not required to utilize pre-injury and post-injury annual earnings, rather than looking to hourly wages. McClurg v. Yanke Mach. Shop, Inc., 123 Idaho 174, 845 P.2d 1207 (1993).

Claim that the industrial commission should have considered wage increases implemented by claimant’s former employer during the interim between his injury and subsequent employment with another employer was unsupported by law and too speculative as it could not be ascertained whether claimant would have continued working for former employer, or whether he would have received the same raises that current employees received. McClurg v. Yanke Mach. Shop, Inc., 123 Idaho 174, 845 P.2d 1207 (1993).

Probable future wage increases are speculative and unsupported by law unless the claimant is performing the act being used as the test pre-injury and post-injury; thus, where claimant’s employment activity changed after he was injured, any future wage increases that he may have received had he remained in his pre-injury employment activity were unascertainable and irrelevant. Reiher v. American Fine Foods, 126 Idaho 58, 878 P.2d 757 (1994).

The industrial commission’s comparison of claimant’s hourly wages to assist in its determination of his lost earning capacity was proper where the numbers it relied upon to represent the loss of earning capacity were supported by substantial competent evidence. McClurg v. Yanke Mach. Shop, Inc., 123 Idaho 174, 845 P.2d 1207 (1993).

Medical Factors.

For application of the formula outlined in Carey v. Clearwater County Road Dept. , 107 Idaho 109, 686 P.2d 54 (1984), to worker’s compensation claim for total permanent disability after suffering from both a preexisting condition and an industrial accident, see Quincy v. Quincy, 136 Idaho 1, 27 P.3d 410 (2001).

Modification of Agreement.

Nonmedical Factors.

Where worker wanted modification of compensation agreement, and where agreement blurred the distinction between impairment and disability, commission did not err in refusing to reopen the case concerning worker’s previous injury; worker had no basis to establish different percentage figures for impairment and disability since there was no evidence that the degree of impairment in 1979 was greater than 20%, since worker’s hip was relatively asymptomatic after the 1979 surgery, and since the record was silent as to any nonmedical factors, following the 1979 surgery, that could have caused the disability rating to deviate from the medically determined degree of impairment. Urry v. Walker & Fox Masonry Contractors, 115 Idaho 750, 769 P.2d 1122 (1989). Nonmedical Factors.

It was not error for the commission to conclude that a claimant’s physical appearance and history of excessive alcohol consumption constituted pertinent nonmedical factors under this section and§ 72-430, rather than physical impairments under either§ 72-332 or§ 72-406, where the industrial commission found that claimant’s physical appearance and history of excessive alcohol consumption did not hinder him in his earning capacity prior to the accident, where, since he was a teenager claimant had functioned in the manual labor market without suffering any loss of potential earning capacity, and where claimant’s physical appearance and history of excessive alcohol consumption had not served as a hindrance in that job market. Roberts v. Asgrow Seed Co., 116 Idaho 209, 775 P.2d 101 (1989).

Liability for nonmedical factors should be apportioned between the employer and the industrial special indemnity fund in proportion to their respective percentages of responsibility for the physical impairment. Quincy v. Quincy, 136 Idaho 1, 27 P.3d 410 (2001).

Because industrial commission found that a workers seizures were due to alcohol withdrawal, it also considered them as a pertinent nonmedical factor; the industrial commission also took into account how those factors would affect the worker’s future ability to work. Ball v. Daw Forest Prods. Co., 136 Idaho 155, 30 P.3d 933 (2001).

A psychological disorder lacking physical manifestations can be treated as a nonmedical factor under this section, which mandates an appraisal of a claimant’s present and probable future ability to engage in employment, as it is affected by the medical factor of permanent impairment and by pertinent nonmedical factors as provided in§ 72-430. Smith v. State, — Idaho —, 443 P.3d 178 (2019).

Odd-lot Status.

Since the plaintiff did not testify as to the types of lighter duty work that he was able to perform or the availability of such jobs in his geographical area, the record thus supported the commission’s findings that the plaintiff did not meet his burden of establishing odd-lot status in order to establish permanent and total disability. Dehlbom v. State, Indus. Special Indem. Fund, 129 Idaho 579, 930 P.2d 1021 (1997).

Where claimant sought permanent disability under the odd-lot status and there was conflict between testimony of claimant’s vocational counselor that claimant was not capable of performing any job and the testimony of company’s vocational expert that claimant was suitable for several types of jobs, since commission found the testimony of company’s vocational expert to be more credible and persuasive, claimant’s claim was denied and claimant’s argument that company expert’s evaluation should not be persuasive because there are no specific jobs available in the categories for which she found him to be qualified was without merit, for it has never been held that unless a prima facie case of odd-lot disability is established, an employer or ISIF must prove that there is a specific job in existence in order to defeat a claim for total or permanent disability. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997). Where claimant for total disability failed to show that he had attempted other types of employment, that he did little to find work after leaving company, met with his vocational counselor only once, inquired about only a few jobs, and never sought employment in the area, and there was a conflict in the evidence about whether attempts to find employment would have been futile, he failed to establish odd-lot worker status. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

An employee may prove total disability under the odd-lot worker doctrine in one of three ways: 1. by showing that he has attempted other types of employment without success; 2. by showing that he or vocational counselors or employment agencies on his or her behalf have searched for other work and other work is not available; 3. by showing that any efforts to find suitable employment would be futile. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

Where claimant sought compensation for total and permanent disability under the definition of odd-lot worker and the evidence of claimant’s vocational expert was that claimant was not capable of performing any type of job, but company’s expert was of the opinion that even with claimant’s partial disability there were still jobs he could perform, the questions of whether claimant was an odd-lot worker became a question of fact for the commission to decide. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

The burden of proving a prima facie case of odd-lot status is on the claimant; however, where a dispute exists as to the extent of disability, the type of work the claimant is capable of performing, and the effort made to find suitable employment, whether the claimant is odd-lot status is a factual determination within the discretion of the commission. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

A claimant may establish a prima facie case of odd-lot disability status as a matter of law only if the evidence is undisputed and is reasonably susceptible to only one interpretation. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

Where a claimant demonstrates that he fits within the definition of an odd-lot worker he has proven total and permanent disability. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

An odd lot employee is someone who is so injured that he can perform no services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist, such that he may well be classified as totally disabled. Funes v. Aardema Dairy, 150 Idaho 7, 244 P.3d 151 (2010).

Idaho industrial commission properly held that the Idaho industrial special indemnity fund was not liable for an employee’s permanent total disability benefits because the employer failed to prove that the employee’s last accident by itself did not render the employee totally and permanently disabled under the odd-lot doctrine. Tarbet v. J.R. Simplot Co., 151 Idaho 755, 264 P.3d 394 (2011).

Substantial evidence supported the conclusion that the employee was not an odd-lot worker, where she successfully obtained employment after recovering from the accident, she failed to show that she did more than conduct a cursory work search, and the testimony showed that she could have performed sedentary and light duty work. Sevy v. SVL Analytical, Inc., 159 Idaho 579, 364 P.3d 279 (2015).

Permanent Partial Disability.

The primary purpose of an award of permanent partial disability benefits is to compensate the claimant for his loss of earning capacity or his reduced ability to engage in gainful activity. Baldner v. Bennett’s, Inc., 103 Idaho 458, 649 P.2d 1214 (1982).

Substantial evidence supported the industrial commission’s determination that an employee failed to meet her burden of proving disability in excess of impairment resulting from the industrial accident, where the conclusion that she suffered a two percent permanent partial impairment based on a treating physician’s opinion was not definitionally inconsistent with the adoption of an evaluating physician’s opinion that the industrial accident did not result in permanent limitations or restrictions. Sevy v. SVL Analytical, Inc., 159 Idaho 579, 364 P.3d 279 (2015).

Idaho industrial commission erred in concluding that a worker’s permanent partial disability (PPD) rating was lower than his partial permanent impairment (PPI) rating; because the impairment is part of the calculation for disability: once a PPI disability rating has been set, a PPD rating cannot be lower than such a rating, and the PPI rating is a permanent rating of impairment. Oliveros v. Rule Steel Tanks, Inc., — Idaho —, 438 P.3d 291 (2019).

Preexisting Injury.

In a workers’ compensation case, a remand was necessary because there was no clear indication as to a benefit claimant’s permanent disability in light of the accident and her pre-existing conditions since the Idaho industrial commission failed to articulate both steps in making its apportionment after determining that there was a 5 percent permanent disability. The commission was required to evaluate the claimant’s disability according to the factors in§ 72-430(1), make findings as to her permanent disability in light of all of her physical impairments, including pre-existing conditions, and then apportion the amount of the permanent disability attributable to the claimant’s accident. Page v. McCain Foods, Inc., 145 Idaho 302, 179 P.3d 265 (2008).

Progressive Impairment.

When a claimant’s impairment is progressive, the industrial commission may estimate his probable future disability and reduce it to present value for the purpose of making a final award which takes into account probable future changes in impairment. Reynolds v. Browning Ferris Indus., 113 Idaho 965, 751 P.2d 113 (1988).

Psychological Disorder.

Even though the claimant’s personality disorder lacked physical manifestations, the industrial commission was correct in including the psychological disorder as a personal circumstance and allocating responsibility between the special indemnity fund and the employer/surety. Mapusaga v. Red Lion Riverside Inn, 113 Idaho 842, 748 P.2d 1372 (1987), overruled on other grounds, Archer v. Bonners Ferry Datsun, 117 Idaho 166, 786 P.2d 557 (1990).

The Idaho industrial commission properly determined an employee’s disability at the time of a hearing, because: the claimant was employable with psychological treatment; under the odd-lot worker ananlysis, no work was sought and found unavailable; and an expert said seeking work was not futile. Smith v. State, — Idaho —, 443 P.3d 178 (2019).

Successive Injuries.

When evaluating a claimant’s ability to find employment in the future, the commission must consider all of his physical impairments, not just the most recent one, since the effect of successive injuries may be greater than the sum of the impairments resulting from each. Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 565 P.2d 1360 (1977).

Where the commission, in evaluating the disability of a claimant who suffered successive injuries, apparently concluded that since the most recent injury was not in itself totally disabling and since the previous injuries had not been disabling in the past, the claimant was not totally and permanently disabled, the commission’s approach did not adequately consider the effect of nonmedical factors, such as the claimant’s lack of an education or special training or skills, which had not prevented the claimant from working when he was able to do heavy manual labor but would undoubtedly lessen his chances of finding employment in the future since he could no longer perform such labor. Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 565 P.2d 1360 (1977).

Evidence supported industrial commission’s finding that although claimant was found to have a permanent disability of 30% of the whole person after his second injury, because most of his limitations existed prior to the second injury, the portion of claimant’s disability resulting from the second injury did not exceed the portion of the physical impairment rating of five percent attributable to that injury; the remainder of claimant’s disability rating accrued prior to the 1989 injury, thus insurer was not liable for that portion. Sund v. Gambrel, 127 Idaho 3, 896 P.2d 329 (1995).

Suitable Work.

If the evidence of medical and nonmedical factors before the commission prima facie places them in the “odd-lot” category, the burden is then on the employer to show that some kind of suitable work is regularly and continuously available to the claimant that there is an actual job within a reasonable distance from appellant’s home which he is able to perform or for which he can be trained and that the injured worker has a reasonable opportunity to be employed at that job. Reifsteck v. Lantern Motel & Cafe, 101 Idaho 699, 619 P.2d 1152 (1980).

Where the plaintiff’s injury to his neck, which occurred while loading timber onto a truck, resulted in a disability of 15 percent of the whole man, a finding supported by both competent medical and nonmedical evidence, he was not entitled to benefits for a total disability simply because he could not perform adequately in his previous job as a truck driver, since he had not shown there was no suitable occupation open to him. Gordon v. West, 103 Idaho 100, 645 P.2d 334 (1982).

Testimony that claimant had been performing the duties of cooking and meal planning for residents of “retirement home” run in claimant’s home supported the conclusion that claimant had not only attempted other employment, but had successfully performed other work, and, therefore, there was substantial and competent evidence to support the commission’s conclusion that claimant failed to establish a prima facie case that he fell within the odd-lot category. Rost v. J.R. Simplot Co., 106 Idaho 444, 680 P.2d 866 (1984).

A claimant must do more than assert that he cannot perform his previous type of employment in order to qualify as an “odd-lot” worker; he must show what other types of employment he has attempted. The commission, as the factfinder, must consider whether the claimant has tried and could not perform other work. Carey v. Clearwater County Rd. Dep’t, 107 Idaho 109, 686 P.2d 54 (1984). If the evidence of the medical and nonmedical factors places a claimant prima facie in the odd-lot category the burden is then on the employer, the special indemnity fund, to show that some kind of suitable work is regularly and continuously available to the claimant. In meeting its burden, it will not be sufficient for the fund to merely show that the claimant is able to perform some type of work; it is necessary that the fund introduce evidence that there is an actual job within a reasonable distance from claimant’s home which he is able to perform or for which he can be trained. In addition, the fund must show that the claimant has a reasonable opportunity to be employed at that job. Carey v. Clearwater County Rd. Dep’t, 107 Idaho 109, 686 P.2d 54 (1984).

The industrial commission did not err in holding that the claimant satisfied his burden of showing a prima facie case of being an “odd-lot” worker where the evidence showed that the claimant had inquired into work and that his further efforts would have been futile in view of the lack of sedentary work available, claimant’s inability to travel, claimant’s lack of qualifications for any sedentary work that was available, and claimant’s inability to work regularly and steadily due to his unreliable physical condition. Carey v. Clearwater County Rd. Dep’t, 107 Idaho 109, 686 P.2d 54 (1984).

Total Disability.

Though an employee acknowledged that he thought he could perform work that did not require him to do any of the things that aggravated his condition, this did not preclude a finding of total disability. Paulson v. Idaho Forest Indus., Inc., 99 Idaho 896, 591 P.2d 143 (1979).

The test for determining whether a claimant has suffered a permanent disability greater than permanent impairment is “whether the physical impairment, taken in conjunction with nonmedical factors, has reduced the claimant’s capacity for gainful activity.” Graybill v. Swift & Co., 115 Idaho 293, 766 P.2d 763 (1988).

Where commission concluded and found that worker suffered an impairment of 15% of the whole man as a result of injury in 1979, an impairment of nine percent of the whole man as a result of 1982 accident, and an additional 76% disability as a result of nonmedical factors such as age, training, transferable skills, background and work experience and where consequently, the commission found worker was totally and permanently disabled within the odd-lot category, commission’s findings were supported by substantial competent evidence and such findings were not disturbed on appeal. Hegel v. Kuhlman Bros., 115 Idaho 855, 771 P.2d 519 (1989).

Where commission found that claimant suffered from a disability of 85% of the whole person and the finding was supported by competent evidence and not disputed by claimant, claimant failed to establish that he was totally and permanently disabled since his disability rating was less than 100%. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

If the commission finds that the claimant has met his or her burden of proving 100% disability via the claimant’s medical impairment and pertinent nonmedical facts, total and permanent disability has been established. Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 939 P.2d 854 (1997).

Commission did not err in denying the employee’s claim for disability benefits where the therapist testified that the therapist was unable to rate the employee because the employee failed to try to perform the tests, and the representations about the employee’s abilities lacked credibility. Jarvis v. Rexburg Nursing Ctr., 136 Idaho 579, 38 P.3d 617 (2001).

Various Factors Considered.

A claimant’s impairment evaluation or rating is one component or element to be considered by the commission in determining a claimant’s permanent partial disability, and is not the exclusive factor determinative of the disability rating fixed by the commission. A disability rating may exceed the claimant’s impairment rating. Baldner v. Bennett’s, Inc., 103 Idaho 458, 649 P.2d 1214 (1982).

The commission did not apply the standard set forth in this section in determining that claimant was not entitled to a disability award greater than his medical impairment rating, where there was no indication that the commission examined his ability to engage in gainful activity as it was affected by nonmedical factors, such as the fact that he was 43 years of age with no formal education or ability to read or write; that he could no longer engage in construction or farm work and that his ability to drive trucks was diminished by his accident. Bennett v. Clark Hereford Ranch, 106 Idaho 438, 680 P.2d 539 (1984).

The fact that claimant was able to continue truck driving in spite of injury did not establish that his ability to engage in gainful activity was not diminished by the nonmedical factors the commission is required to consider under this section. Bennett v. Clark Hereford Ranch, 106 Idaho 438, 680 P.2d 539 (1984).

Disability must include medical impairment, but medical impairment will not always be the same as disability. Fenich v. Boise Elks Lodge No. 310, 106 Idaho 550, 682 P.2d 91 (1984).

Since this section required that nonmedical factors be considered in arriving at a permanent disability rating, and since the referee’s finding of fact stated that nonmedical factors were not considered, it was clear that the award provided by the compensation agreement was based only upon a permanent impairment rating; however, that fact alone does not necessarily indicate that the award was for permanent impairment only. Whether the award was for permanent impairment or permanent disability is dependent on the actual agreement of the parties. Woodvine v. Triangle Dairy, Inc., 106 Idaho 716, 682 P.2d 1263 (1984).

This section requires the industrial commission to take into consideration nonmedical factors such as age, sex, education, and economic and social environment. Seese v. Ideal of Idaho, Inc., 110 Idaho 32, 714 P.2d 1 (1985).

Where, the impairment evaluation performed by the medical experts pursuant to§ 72-424 included such subjective factors as pain, it was unnecessary for the commission to add a further disability award for pain pursuant to this section. Graybill v. Swift & Co., 115 Idaho 293, 766 P.2d 763 (1988).

Section 72-419 is used to calculate the rate at which income benefits are paid, which is better suited to mathematical calculation, but when evaluating a claimant’s permanent physical disability, the industrial commission is required to consider the factors articulated in this section and cannot rely solely upon mathematical calculation. Vassar v. J.R. Simplot Co., 134 Idaho 495, 5 P.3d 475 (2000).

Substantial evidence supported a permanent partial disability rating: the industrial commission properly considered the claimant’s limited language skills, the labor market, and his chronic pain in determining his percentage of impairment and found that he was not an odd lot worker. Funes v. Aardema Dairy, 150 Idaho 7, 244 P.3d 151 (2010).