DEFINITIONS

Employer

Employer means any person who has expressly or impliedly hired or contracted the services of another. It includes contractors and subcontractors. It includes the owner or lessee of premises, or other person who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor or for any other reason, is not the direct employer of the workers there employed. If the employer is secured, it means his surety so far as applicable. Idaho Code § 72-102(13)(a).

Statutory Employer

Statutory Employer means those who employ contractors and subcontractors who have complied with Idaho Code § 72-301. It also means the owner or lessee of premises, or other person ‘who is virtually the proprietor or operator of the business there carried on’ described in paragraph a above. Ewing v. Idaho Department of Transportation, 147 Idaho 305, 307, 208 P.3d 287 (2009).

Professional Employer

Professional Employer means a professional employer as defined in Idaho Code title 44, chapter 24. Idaho Code § 72-102(13)(b). That chapter defines professional employer as any person engaged in providing the services of an employee pursuant to one or more professional employer arrangements or any person that represents itself to the public as providing services pursuant to a professional employer arrangement. Idaho Code § 44-2403(6).

The “Professional Employer” definition refers to situations where a business contracts with an employee leasing firm to provide workers on a long-term basis. Typically, the work site employer (defined below) has the right to control the manner in which the work is performed, but the leasing firm (professional employer) handles such matters as payroll, benefits, HR issues and risk management. Pursuant to Section 72-103, so long as the work site employer or professional employer secure workers’ compensation coverage as required under the Idaho’s Workers’ Compensation Act, they may be entitled to the protections and immunities provided under the Act. In the absence of an agreement to the contrary, it is the obligation of the professional employer to secure workers’ compensation coverage—but it should be noted that if coverage is not provided, the work site employer is not relieved of liability for workers’ compensation benefits (see also Sections Penalties and INSURANCE given below

Temporary employer

Temporary employer means the employer of “temporary employees” as that term is defined in Idaho Code § 44-2403(7). Idaho Code § 72-102(13)(c).

Work Site Employer

Work Site Employer means the client of the temporary or professional employer with whom a worker has been placed. Idaho Code § 72-102(13)(d).

Employee

Employee is synonymous with “workman” and means any person who has entered into the employment of, or who works under contract of service or apprenticeship with, an employer. Idaho Code § 72-102(12). It expressly excludes household domestic service, casual employment, employment of outworkers, the owner of a sole proprietorship, working members of a partnership or limited liability company and employment of an officer of a corporation who at all times during the period involved, owns not less than 10% of the corporation’s stock and, if the corporation has directors, is also a director thereof, from the application of Idaho’s workers’ compensation law, associate real estate brokers and real estate salesmen, volunteer ski patrollers and officials in athletic contests involving secondary schools are all exempt from the application of Idaho’s workers’ compensation law.

Under certain circumstances employment of members of an employer’s family also are excluded from the definition of employee. If a rule of liability for injury, occupational disease or death is provided for by the laws of the United States, such employee also is excluded from the application of Idaho’s workers’ compensation law. Idaho Code § 72-212(5).

Employment as a crop duster also is exempt from the application of Idaho’s worker’s compensation law, provided that proof of coverage for the pilot under a policy approved by the Idaho Industrial Commission has been filed with the Idaho Industrial Commission. Idaho Code § 72-212(8).

Borrowed Employee

Borrowed Employee is synonymous with “loaned employee” under Idaho’s workers’ compensation law. Cordova v. Bonneville County Joint School Dist. No. 93, 144 Idaho 637, 642, 167 P.3d 774 (2007). A person is the loaned employee of the borrowing employer if the borrowing employer satisfies the “right to control” test. Hill v. E&L Farms, 123 Idaho 371, 373, 848 P.2d 429 (1993).

Independent Contractor

Independent Contractor means any person who renders service for specified compensation for a specified result, under the right to control or actual control of the principal as to the result of the work only and not as to the means by which such result is accomplished. A custom farmer is expressly deemed to be an independent contractor under Idaho’s workers’ compensation law. Idaho Code § 72-102(17).

Occupational Disease

Occupational Diseasemeans a disease due to the nature of an employment in which the hazards of such disease actually exist, are characteristic of, and peculiar to the trade, occupation, process or employment, but shall not include psychological injuries, disorders or conditions unless the conditions set forth in Idaho Code § 72-451 are met.

Idaho Code § 72-102(21)(a).

Contracted and Injured

Contracted and Injured when referring to an occupational disease, shall be deemed the equivalent of the term “arising out of and in the course of” employment. Idaho Code § 72-102(21)(b).

Disablement

Disablement except in the case of silicosis, means the event of an employee becoming actually and totally incapacitated because of an occupational disease from performing his work in the last occupation in which injuriously exposed to the hazards of such disease, and “disability” means the state of being so incapacitated. Idaho Code § 72-102(21)(c).

Silicosis

Silicosis means the characteristic fibrotic condition of the lungs caused by the inhalation of silicon dioxide (SiO2) dust. Idaho Code § 72-102(21)(d)pp.

EXCLUSIVE REMEDY

General Rule

Subject to the provisions of Idaho Code § 72-223, the liability of an employer under the workers’ compensation law is exclusive and in place of all other liability of the employer to the employee, their spouse, dependents, heirs, legal representatives or assigns. Idaho Code § 72-209(1) and 72-211. The exemption also extends to the employer's surety and to all officers, agents, servants and employees of the employer or surety.

Exceptions

The exclusive remedy is inapplicable in the case of injury or death caused by the unprovoked physical aggression of the employer, its officers, agents, servants or employees. The loss of the protection of the exclusive remedy applies only to the aggressor and does not affect the employer unless the employer authorized or directed the aggressor, or the employer was a party to the aggression. Idaho Code §§ 72-209 and 72-211.

Third-Party Liability

Idaho Code § 72-209(2) provides that an employer’s liability to any other person who may be liable for, or who has paid damages on account of, an injury or occupational disease or death arising in the course and scope of employment, and caused by the breach of any duty or obligation owed by the employer to such other person, shall be limited to the amount of compensation for which the employer is liable under the workers’ compensation law unless the other person and employer agree to share liability on a different basis.

JURISDICTION AND LIMITATIONS OF ACTIONS

General Rule

Idaho Code § 72-707 establishes exclusive jurisdiction of all questions arising under the workers’ compensation law in the Idaho Industrial Commission. Furthermore, the Idaho Workers’ Compensation Act applies to all injuries, death or occupational diseases that occur within the State of Idaho, regardless of the worker’s state of origin. Runcorn v. Shearer Lumber Products, Inc., 107 Idaho 389, 690 P.2d 324 (1984).

Extraterritorial Jurisdiction

Idaho Code § 72-217 also makes the act applicable to Idaho employees sent out of state to perform their work if:
1.       Their employment is principally localized in Idaho; or
2.       They are working under a contract for hire made in Idaho if their employment is not principally localized in Idaho; or
3.       They are working under a contract for hire made in Idaho, in employment principally localized in another state and the workers’ compensation law of that state does not apply to the employer; or
4.       They are working under a contract for hire made in Idaho, in employment outside the United States and Canada.

Time Limitation

1. Idaho Code § 72-701 requires a notice of accident to the employer be made as soon as practicable and no later than 60 days after the event. The form of notice is controlled by Idaho Code § 72-702, which requires that the notice be in writing, contain the name and address of the employee, and state in ordinary language the time, place, nature and cause of injury or disease, and must be signed by the employee, or in the case of death, by a dependent or person on their behalf. Idaho Code § 72-704 provides that inaccuracies in the notice will not render it insufficient or invalid unless the employer can show prejudice by reason of the deficiencies. The failure to give notice does not bar proceedings if it can be shown that the employer had knowledge of the injury or occupational disease, or that the employer has not been prejudiced by the failure to give notice.

2. Idaho Code § 72-701 also requires that a claim for compensation must be made within 1 year after the date of the accident or death.

Idaho Code § 72-705 tolls the time limitations in Idaho’s workers’ compensation law as to minors or mentally incompetent individuals so long as no guardian, committee or next friend has been appointed. If no compensation has been paid, Idaho Code § 72-706(1) requires that a request for hearing and award be filed within 1 year from the date of making the claim. If compensation has been discontinued, Idaho Code § 72-706(2) requires that a request for hearing be made within five years of the date of the accident or first manifestation of occupational disease. When income benefits have been discontinued more than four years following the date of the accident or first onset of occupational disease, Idaho Code § 72-706(3) requires that a request for hearing be made within 1 year of the date of the last payment of income benefits. The payment of medical benefits beyond 5 years from the date of the accident causing the injury or the date of first manifestation of an occupational disease does not extend the time for requesting a hearing for additional income benefits under Idaho Code § 72-706(4). If the Claimant complies with the requirements of Idaho Code § 72-706(1), the right to medical benefits is not otherwise barred by the statute. Idaho Code § 72-706(5).

3. Idaho Code § 72-719 provides that at any time within five years of the date of an accident causing injury, or within five years of the manifestation of an occupational disease, but not more often than every six months, the Industrial Commission may review and modify any order, agreement or award upon the following grounds:
a.       Change in the nature or extent of the employee’s injury or disablement; or
b.       Fraud.

4. Idaho Code § 72-719(3) also permits the Industrial Commission to, on its own motion, at any time within five years of the date of the accident causing injury, or the first manifestation of occupational disease, review a case in order to correct a manifest injustice.

5 Idaho Code § 72-402 imposes a five day waiting period for the payment of income benefits, unless the injury results in a disability from work exceeding two weeks. The waiting period also does not apply if the employee is hospitalized as an inpatient as a result of the injury. The day of the injury is included in computing the waiting period unless the employee is paid wages for the day of the injury.

6 The payment of income benefits, and burial expenses, for the death of an injured worker are contingent upon the death of the worker occurring within four years of the date of the injury or onset of occupational disease. Idaho Code § 72-413. There is no specific time limitation under Idaho Code § 72-432 for the payment of medical benefits. They are payable for a “reasonable time” after the covered injury or manifestation of occupational disease.

7 Under Idaho Code § 72-602, an employer must file a “Notice of Injury or Occupational Disease” with the Industrial Commission as soon as practicable, but in no case later than ten days after the occurrence of an injury or occupational disease requiring treatment by a physician or resulting in absence from work for more than one day. The employer also must provide extended disability supplemental and final reports if the disability extends beyond 60 days, and again upon the termination of the disability, to include a summary of the compensation and medical services paid and payable. If the employer willfully fails to file the required reports, Idaho Code § 72-604 tolls the statute of limitations provided for in Idaho Code § 72-701 and 72-706.

8. The payment of benefits under the workers’ compensation laws of another state do not act as a bar to a claim for benefits under Idaho law so long as a claim is filed within two years of the accident causing the injury or the manifestation of disease or death.

Statute of Limitations

Idaho’s workers’ compensation law provides certain time limits within which an employee may seek benefits for a work-related injury or occupational disease. See Section Time Limitations above

COMPENSABILITY

General Rule

In order to be compensable, an injury, death or occupational disease must arise within the course and scope of the employee’s employment. Generally, the worker’s employment must be a proximate cause of the injury, death or disease. If the cause results from a hazard to which the worker would have been equally exposed outside of the workplace, it is not compensable under Idaho law. O’Loughlin v. Circle A Const., 112 Idaho 1048, 739 P.2d 347 (1987). Furthermore, if the only link to the worker’s employment is the fortuitous happening of the accident at the employer’s premises, such injury is not compensable. For example, an altercation resulting from a personal dispute with a co-worker or injuries resulting from a seizure that happens to occur at the workplace, but is otherwise unrelated to the work would not be compensable. Evans v. Hara’s, Inc., 123 Idaho 473, 849 P.2d 934 (1993).

“Injury”Defined

Injury is defined as a personal injury caused by an accident arising out of and in the course of any employment covered by the workers’ compensation law. Idaho Code § 72-102(18)(a).

Types of Injuries

Idaho Code § 72-102(18)(c) defines “Injury" and "personal injury" to include only an injury caused by an accident, which results in violence to the physical structure of the body. The description can be misleading, however, since the Idaho Supreme Court has determined that “[i]f the claimant be engaged in his ordinary usual work and the strain of such labor becomes sufficient to overcome the resistance of the claimant's body and causes an injury, the injury is compensible [sic].'" Stevens-Mcatee v. Potlatch Corp., 145 Idaho 325, 179 P.3d 288 (2008).

1. Accident is defined as an unexpected, undersigned, an unlooked for mishap, or untoward event connected with the industry in which it occurs, and which can be reasonably located as to time when and place where it occurred, causing an injury.

2.Occupational disease is defined as a disease due to the nature of an employment in which the hazards of such disease actually exist, are characteristic of, and peculiar to the trade, occupation, process, or employment, but shall not include psychological injuries, disorders or conditions unless the conditions set forth in Idaho Code § 72-451 are met. Idaho Code § 72-102(21)(a).

3. Contracted and incurred, when referring to an occupational disease, are deemed the equivalent of the term "arising out of and in the course of" employment. Idaho Code § 72-102(21)(b).

4. Disablement,except in the case of silicosis, means the event of an employee's becoming actually and totally incapacitated because of an occupational disease from performing his work in the last occupation in which injuriously exposed to the hazards of such disease, and "disability" means the state of being so incapacitated. Idaho Code § 72-102(21)(c).

5. Disablement in the case of silicosis, means the event of first becoming actually incapacitated, because of such disease, from performing any work in any remunerative employment; and "disability" means the state of being so incapacitated. Idaho Code § 72-102(21)(d).

6. Silicosismeans the characteristic fibrotic condition of the lungs caused by the inhalation of silicon dioxide (SiO2) dust. Idaho Code § 72-102(21)(e).

Psychological Injuries, Disorders or Conditions

Psychological Injuries, Disorders or Conditions are specifically excluded from the definition of occupational disease unless the conditions set forth in Idaho Code § 72-451 are met. That statute provides that such are not compensable unless:
1       Caused by an accident and physical injury; or
2       Accompanying an occupational disease with resultant physical injury.
3       A psychological mishap or event may constitute an injury so long as it meets the criteria of § 72-451 and it is readily recognized and identifiable as having occurred in the workplace and it is the product of a sudden and extraordinary event. The accident must also be the primary cause, i.e. 50.1%, when compared to all other causes combined.
4       Compensation is not paid for psychological injuries caused by conditions generally inherent in every working situation or from personnel related actions such as disciplinary action, changes in duty, job evaluation or employment termination.
5       Where psychological causes or injuries are recognized under the applicable section, they must exist in a real and objective sense, must be diagnosable under the American Psychiatric Association’s Diagnostic and Statistics Manual, and actually diagnosed by a psychiatrist or psychologist licensed to practice in the jurisdiction where treatment is rendered.
6       The burden of proof in the case of psychological injuries, disorders or conditions is clear and convincing evidence.

Occupational Diseases

1. Idaho’s workers’ compensation law only provides coverage for those diseases defined by statute. Occupational disease and injury are mutually exclusive terms under Idaho’s workers’ compensation law. Idaho Code § 72-102(17)(c).
2.Idaho Code § 72-438 provides a non-exclusive list of occupational diseases covered under Idaho law. The list is not intended to be exclusive, and the statute expressly recognizes that there are a wide range of toxic substances that can lead to disease. The statute makes clear, however, that the disease cannot be one that is common to the public but rather is unique to the employment, occupation, trade, etc . . . of the worker.
3. The disease must actually be incurred on the job and within one year after the last injurious exposure. In the case of silicosis, the disease must occur within four years of the last injurious exposure. Idaho Code § 72-439.
4. The key to the compensability of an occupational disease is the existence of a risk for the disease within the employment that is peculiar to the occupation. It is not necessary for the risk of the disease to arise exclusively from the employment. Rather, it is sufficient if the nature of the employment makes it possible to differentiate its risks from the risks experienced by the public generally. Bowman v. Twin Falls Const. Co., 99 Idaho 312, 581 P.2d 770 (1978). Assuming the existence of such a link, the worker must show that they have become actually and totally incapacitated as a result of the disease from performing their work in the last occupation where the injurious exposure occurred.

DEFENSES AND EXCLUSIONS

Since only those injuries, occupational diseases or deaths that arise in the course and scope of employment are compensable under Idaho’s workers’ compensation law, to the extent that they arise other than in the course and scope of employment, such as an independent contractor relationship, they are excluded from coverage. Anderson v. Farm Bureau Mutual, 112 Idaho 461, 732 P.2d 699 (Idaho Ct. App. 1987). Similarly where the claimant’s work does not increase the claimant’s exposure to the hazard causing the harm beyond that they would have experienced as a member of the general public, it does not arise in the course and scope of employment, and so is excluded from coverage. Evans v. Hara’s, Inc., 123 Idaho 473, 849 P.2d 934 (1993).

Injuries resulting from a purely personal activity are excluded from coverage. Whether an activity is of a purely personal nature remains a hotly debated area. For example, an employee sent to an area to wait for a delivery, who dropped a lit cigarette (despite the fact that smoking was prohibited) and injured herself retrieving it was found to have injured herself within the course and scope of her employment, notwithstanding her violation of the prohibition. Gage v. Express Personnel, 135 Idaho 250, 16 P.3d 926 (2000). The test for determining whether the injury occurred within the course and scope of employment is a two part test: First, is the worker doing the duty that the worker is employed to perform; and second, is there a causal connection between the circumstances of the work and the injury of which the worker complains? If not, the injury is not compensable.

Idaho Code § 72-208 excludes coverage for injuries to a claimant resulting from the claimant’s willful intention to injure himself, herself or another. Assaults that arise out of employment, e.g. work as a bouncer, generally are compensable. However, assaults that are personal and private, with the only connection to work being the location of the assault, generally are not compensable. Assaults where the cause cannot be clearly assigned, generally will be found compensable if they occur in the workplace. See e.g. Cahala v. O.K. Tire Store, 112 Idaho 1020, 739 P.2d 319 (1987).

Idaho has adopted the coming and going rule so that an injury that occurs during an employee’s travel to and from work generally is not compensable. However, if the travel involves a special hazard associated with the employment, or if the employment requires travel away from the employer’s place of business, even if the employee is attending to personal needs an injury occurring during such travel is compensable. To the extent that the employee deviates from their employment in a fashion so personal that it breaks the causal connection between the accident and the employment, the injury will not be compensable. Clark v. Daniel Marine Const. Co., 98 Idaho 114, 115, 559 P.2d 293 (1977).

Workers engaged in a ridesharing arrangement are not covered by the workers’ compensation law unless the employer owns, leases or contracts for the motor vehicle used for the arrangement. Idaho Code § 49-2432.

Course of Employment

Engaged in the Furtherance of Employer’s Business

An injury arises out of and in the course of employment if:
1.       The worker is doing the duty that the worker is employed to perform; and
2.       A causal connection exists between the circumstances under which the work must be performed and the injury of which the worker complains. Freeman v. Twin Falls Clinic & Hosp, 135 Idaho 36, 13 P.3d 367 (2000).

A liberal reading of the law is necessary in cases where the issue raised is whether the injury and accident arise out of and in the course of employment. Miller v. Amalgamated Sugar Co., 105 Idaho 725, 729, 672 P.2d 1055.

Not in Furtherance of Employer’s Business

An injury which cannot be traced to the worker’s employment as a contributing proximate cause and which comes from a hazard to which a worker would have been equally exposed outside of the workplace is not compensable. Evans v. Hara’s, Inc, 123 Idaho 473, 849 P.2d 934 (1993).

Traveling Employees

An employee is covered by worker’s compensation when the work requires him to travel away from the employer’s place of business and while he is attending to personal needs such as eating or securing lodging, where necessary to maintain himself while traveling. To establish a presumption that the traveling employee is covered, the employee must show:
1.       Employee status at the time of injury;
2.       That the injury occurred while traveling at the behest of the employer; and
3.       That the employee was engaged in reasonable activities at the time of the injury.

An employee driving an employer’s car establishes a rebuttable presumption that the employee is operating in furtherance of the employer’s business. Manion v. Waybright, 59 Idaho 643, 86 P.2d 181 (1938) Further, the payment of the employee’s travel expenses may be considered as evidence, but is not conclusive, as to whether the employee was in the course of his employment. Spanbauer v. Peter Kiewit Sons’ Company, 93 Idaho 509, 465 P.2d 633 (1970).

The employee will not be covered if the nature of the trip taken represents an unreasonable departure in order to pursue some purely personal activity not connected with his employment. Ridgeway v. Combined Ins. Co., 98 Idaho 410, 412, 565 P.2d 1367 (1977). The proper inquiry 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, 118 Idaho 347, 796 P.2d 1020 (1990).

Commuting

An employee traveling to and from work is not within the course of his employment and is not covered by workers’ compensation unless that travel involved special exposure to a hazard or risk peculiarly associated with the employment and which is the cause of the injury. Clark v. Daniel Morine Construction Co., 98 Idaho 114, 115, 559 P.2d 293 (1977).

Exceptions

Where the Employee is:
1.       going or returning to some transportation facility furnished by the employer;
2.       transversing the only means of ingress or egress to or from work;
3.       doing some particular job for the employer;
4.       traveling to or from the employer’s place of business upon some specific mission at the employer’s request;
5.       on the employer’s premises in the vicinity of the actual situs of his employment.

No Fixed Place of Work Exception

The course of employment for a stationary employee is narrower, while that of a traveling employee is broader.

Transportation Included in Employment Exception

The payment of travel expenses alone is only evidence and is not conclusive as to whether the employer regarded the employee’s travel as part of his job. See Matter of Barker, 110 Idaho 871, 719 P.2d 1131 (1986).

Special Missions, Assignments, or Circumstances Exception

An employee is covered when engaged in a “special errand” which is defined as one where the employee, although not at his or her regular place of business, even before or after customary work hours, is doing some special service or errand or the discharge of some duty of or under the direction of his or her employer. Dameron v. Yellowstone Trail Grange, 54 Idaho 646, 34 P.2d 417 (1934).

Further, an act done partly for personal reasons and partly to serve an employer still is within the scope of employment. Mortimer v. Riviera Apartments, 122 Idaho 839, 840, P.2d 383 (1992).

Premises and Parking Lot Cases

An injury that occurs on the employer’s premises may be compensable if a sufficient showing of a business purpose for the employer can be made. Idaho, through its case law, has adopted a policy giving rise to a presumption of compensability if the injury occurs on the employer’s premises. Foust v. Birds Eye Division of General Foods Corp., 91 Idaho 418, 422 P.2d 616 (1967).

Related to Employment

The general rule is that an injury which cannot be traced to the worker’s employment as a contributing proximate cause and which comes from a hazard to which a worker would have been equally exposed outside of the workplace is not compensable under the Idaho law. Evans v. Hara’s, Inc., 123 Idaho 473, 849 P.2d 934 (1993). Not only must the employee be injured while he is an employee, he must be injured while working within the course of his employment. This is determined on a case by case basis.

There is a two-part test to determine whether the injury arises out of and in the course of employment. It arises out of employment if (1) the worker is doing the duty that the worker is employed to perform and (2) a causal connection exists between the circumstances under which the work must be performed and the injury of which the worker complains. Kessler v. Payette County, 129 Idaho 855, 859, 934 P.2d 28 (1997).

Intentionally Self-Inflicted Injury or Death

Idaho Code § 72-208 provides that compensation need not be paid by an employer or a surety where the employee’s action resulting in injury can be shown to be taken with a willful intention to injure himself or to injure another. This is an affirmative defense and when it is raised the defendant has the burden of proving the employee’s injuries are a result of a willful intent on the part of the employee to injure himself or another. Idaho Code § 72-208(1). If the Commission can only say that it is a 50/50 proposition, then the decision goes to the worker. Seamans v. Maaco Auto Painting & Bodyworks, 128 Idaho 747, 753, 918 P.2d 1192 (1996).

Employee’s Violation of the Law, Intoxication, and Illegal Use of Drugs

Idaho Code § 72-208 provides that no income benefits need to be paid where any employee otherwise entitled to income benefits is injured and intoxication or use of controlled substances is the “reasonable and substantial cause” of the accident and injury. However, no reduction will apply where the intoxicant causing the employee’s intoxication was either furnished by the employer or the employer permitted the employee to remain at work when the employer or his supervising agent had knowledge that the employee was in fact intoxicated, nor will a reduction be allowed in the case of use of a controlled substance as defined by Idaho Code § 37-2701(e) if the drug is prescribed and/or dispensed by a practitioner to the employee and used in accordance with the instructions for use of the controlled substance.

Where intoxication as a basis for non-payment of benefits is asserted, the burden of proof is upon the employer or the employer’s surety to show that an employee was intoxicated at the time of his injury. See Seamans, supra.

Employee’s Violation of Positive Orders of Employer

Idaho has no general rule to address circumstances where an employee engages in an activity specifically prohibited by the employer. Rather, see the “Defenses and Exclusions“ above

Personal Animosity

Where an employee is injured by a third person due to a personal dispute, even if the worker is performing the duties required by his employment at the time of the injury, the alleged injury does not arise out of the course of the employment. Cahala v. OK Tire Store, 112 Idaho 1020, 739 P.2d 319 (1987). In such a case, no compensation is due the employee for his injury.

BENEFITS

Calculation of Average Weekly Wage

An employee is entitled to payment of all his reasonably incurred medical expenses immediately upon the occurrence of an injury or manifestation of an occupational disease and for a “reasonable” time thereafter. Idaho Code § 72-432. The extent of allowable medical services for which the employer is required to pay is quite broad and the definitions liberal.

Income benefits are not immediately payable to an employee upon his injury. To receive income benefits, an employee must be disabled from work for a period of at least five days. Idaho Code § 72-402. If the employee’s disability from work continues beyond two weeks from the date of injury, then the employee will be allowed income benefits from the date of his initial disability. Idaho Code § 72-402.

The waiting period is waived if the injured employee is hospitalized as an inpatient. No period of time is required as to the length of hospitalization. For purposes of computing the waiting period, the day upon which the injury occurs is counted as a part of the five-day waiting period unless the employer pays the employee his wages for the day of the injury. Idaho Code § 72-402(2).

The actual amount of income benefits payable to the injured employee who survives his injuries and during his period of recovery from them is determined by the interplay of the formulas contained in Idaho Code § 72-408, the wage calculation provisions of Idaho Code § 72-419, and the maximum and minimum income benefits provision of Idaho Code § 72-409. The “average weekly wage” referred to in the above referenced statutory provisions with regard to benefits is calculated as per the provisions of Idaho Code § 72-419.

Idaho Code § 72-419 provides the determination of average weekly wage. The average weekly wage of the employee at the time of the accident causing the injury, or of manifestation of the occupational disease, shall be taken as the basis upon which to compute compensation, and shall be determined as follows:
1.       If at such time the wages are fixed by the week, the amount so fixed shall be the average weekly wage.
2.       If at such time the wages are fixed by the month, the average weekly wage shall be the monthly wage so fixed multiplied by twelve (12) and divided by fifty-two (52).
3.       If at such time the wages are fixed by the year, the average weekly wage shall be the yearly wage so fixed divided by fifty-two (52).
4.       (a) If at such time the wages are fixed by the day, hour or by the output of the employee, the average weekly wage shall be the wage most favorable to the employee computed by dividing by thirteen (13) his wages (not including overtime or premium pay) earned in the employ of the employer in the first, second, third or fourth period of thirteen (13) consecutive calendar weeks in the fifty-two (52) weeks immediately preceding the time of accident or manifestation of the disease.
(b) If the employee has been in the employ of the employer less than twelve (12) calendar weeks immediately preceding the accident or manifestation of the disease, his average weekly wage shall be computed under the foregoing paragraph, taking the wages (not including overtime or premium pay) for such purpose to be the amount he would have earned had he been so employed by the employer the full thirteen (13) calendar weeks immediately preceding such time and had worked, when work was available to other employees in a similar occupation.

5.       If at such time the hourly wage has not been fixed or cannot be ascertained, the wage for the purpose of calculating compensation shall be taken to be the usual wage for similar services where such services are rendered by paid employees.
6.       In seasonal occupations that do not customarily operate throughout the entire year, the average weekly wage shall be taken to be one-fiftieth (1/50) of the total wages which the employee has earned from all occupations during the twelve (12) calendar months immediately preceding the time of the accident or manifestation of the disease.
7.       In the case of a volunteer emergency responder, the income benefits in the first fifty-two (52) weeks shall be based on the average weekly wage in his regular employment or sixty-seven percent (67%) of the current average weekly state wage, as determined pursuant to Idaho Code § 72-409(2), whichever is greater.
8.       If the employee was a minor, apprentice or trainee at the time of the accident or manifestation of the disease, and it is established that under normal conditions his wages should be expected to increase during the period of disability that fact may be considered in computing his average weekly wage.
9.       When the employee is working under concurrent contracts with two (2) or more employers and the defendant employer has knowledge of such employment prior to the injury, the employee's wages from all such employers shall be considered as if earned from the employer liable for compensation. When circumstances are such that the actual rate of pay cannot be readily ascertained, the wage shall be deemed to be the contractual, customary or usual wage in the particular employment, industry or community for the same or similar service.
10.       In the case of public employees covered under Idaho Code § 72-205(6), the income benefits shall be based on the greater of the average weekly wage of the employee's civilian employment and pay computed for one (1) weekend drill in a month, or full-time active duty pay fixed by the month as provided in Idaho Code § 46-605.

Total Disability

Income benefits for total disability during the period of recovery, and thereafter in cases of total and permanent disability, shall be paid to the disabled employee subject to deduction on account of waiting period and subject to the maximum and minimum limits set forth in § 72-409, Idaho Code, for a period not to exceed a period of fifty-two (52) weeks, an amount equal to sixty-seven per cent (67%) of his average weekly wage and thereafter an amount equal to sixty-seven per cent (67%) of the currently applicable average weekly state wage. Idaho Code § 72-408(1).

Partial Disability

Income benefits for partial disability during the period of recovery shall be pain in an amount equal to sixty-seven per cent (67%) of the employee’s decrease in wage-earning capacity, but in no event to exceed the income benefits payable for total disability. Idaho Code § 72-408(2).

Impairment Rating

"Permanent impairment" is any anatomic or functional abnormality or loss after maximal medical rehabilitation has been achieved and which abnormality or loss, medically, is considered stable or nonprogressive at the time of evaluation. Permanent impairment is a basic consideration in the evaluation of permanent disability, and is a contributing factor to, but not necessarily an indication of, the entire extent of permanent disability. Idaho Code § 72-422.

“Permanent disability” or “under a permanent disability” results when the actual or presumed ability to engage in gainful activity is reduced or absent because of permanent impairment and no fundamental or marked change in the future can be reasonably expected. Idaho Code § 72-423.

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 fact finding discretion of the Industrial Commission for the courts to 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.

In evaluating permanent disability under this section and Idaho Code § 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 Idaho Code §§ 72-406 and 72-332. Horton v. Garrett Freightlines, 115 Idaho 912, 772 P.2d 119 (1989).

The “whole man” for purposes of computing disability evaluation of scheduled or unscheduled permanent injury (bodily loss or losses or loss of use) for conversion to scheduled income benefits, shall be a deemed period of disability of five hundred (500 weeks). Idaho Code §72-426.

The "whole man" income benefit evaluation for purposes of computing scheduled and unscheduled permanent impairment shall not be deemed to be exclusive for the purposes of fixing the evaluation of permanent disability. Idaho Code § 72-427.

Vocational Rehabilitation

Following a hearing upon a motion of the employer, the employee, or the commission, if the commission deems a permanently disabled employee, after the period of recovery, is receptive to and in need of retraining in another field, skill or vocation in order to restore his earning capacity, the commission may authorize or order such retraining and during the period of retraining or any extension thereof, the employer shall continue to pay the disabled employee, as a subsistence benefit, temporary total or temporary partial disability benefits as the case may be. The period of retraining shall be fixed by the commission but shall not exceed fifty-two (52) weeks unless the commission, following application and hearing, deems it advisable to extend the period of retraining, in which case the increased period shall not exceed fifty-two (52) weeks. An employer and employee may mutually agree to a retraining program without the necessity of a hearing before the commission. Idaho Code § 72-450.

The commission shall refer victims who have been disabled through criminally injurious conduct and who are receiving benefits under this chapter to an appropriate treatment facility or program, including mental health counseling and care. If the referral is to the division of vocational rehabilitation, the division shall provide for the vocational rehabilitation of the victims under its rehabilitation programs to the extent funds are available under such program. Idaho Code § 72-1005.

Return to Work with Loss of Earnings

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).

Earning Power Assessment

The claimants post-injury earning power assessment takes into consideration the claimants permanent impairment evaluation and/or permanent disability rating. "Evaluation (rating) of permanent impairment" is a medical appraisal of the nature and extent of the injury or disease as it affects an injured employee's personal efficiency in the activities of daily living, such as self-care, communication, normal living postures, ambulation, elevation, traveling, and nonspecialized activities of bodily members. Idaho Code 72-424. "Evaluation (rating) of permanent disability" is an appraisal of the injured employee's present and probable future ability to engage in gainful activity as it is affected by the medical factor of permanent impairment and by pertinent nonmedical factors as provided in Idaho Code 72-430. Idaho Code 72-425.

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 claimants capacity for gainful activity. Seese v. Ideal of Idaho, Inc., 110 Idaho 32, 714 P.2d 1 (1985).

Employer Job Offer

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 claimant has a reasonable opportunity of securing and which employment is consistent with the terms of his light duty work release. Malueg v. Pierson Enterprises, 111 Idaho 789, 727 P.2d 1217 (1986).

A claimant is not entitled to temporary disability benefits during the period he refuses such reasonable employment. See Idaho Code § 72-403. However, if the offered employment becomes unreasonable, a claimant who is still within the period of recovery may again receive temporary disability benefits if his burden is met. Perkins v. Croman, Inc., 134 Idaho 721, 9 P.3d 524 (2000).

Amputation or Loss of Use

Idaho Code § 72-428 creates a presumption with regard to the payment of income benefits for listed injuries calculated against 55% of the average weekly State wage against a predetermined permanent impairment calculated in weeks of disability. After listing numerous specific presumptions, the majority of which relate to the amputation of various bodily members, two additional presumptions are provided.

Idaho Code § 72-428(4) provides that in the case of the total loss of use of a member, income benefits payable for permanent disability attributable to that permanent loss shall not be less than those provided for loss of the member itself. Idaho Code § 72-428(5), provides that in the event of a partial loss or partial loss of use, the income benefits payable for permanent partial disability attributable to the permanent partial loss or loss of use will not be for a period less than that which is proportional to the permanent impairment attributable to the partial loss or loss of use of the member bears to the total loss of the member. Specifically, Idaho Code § 72-428(4) provides income benefits payable for permanent disability attributable to permanent total loss of use of (or) comparable total loss of use of a member shall not be less than as for the loss of the member and Idaho Code § 72-428(5) provides income benefits payable for permanent partial disability attributable to permanent partial loss or loss of use, of a member shall not be less than for a period as the permanent impairment attributable to the partial loss or loss of use of the member bears to total loss of the member.

Disfigurement/Scarring

The definition of "injury" includes disfigurement. Idaho Code § 72-1003(7). In determining percentages of permanent disabilities, disfigurement will be taken into account if of a kind likely to limit the employee in procuring or holding employment. However, when a scheduled or unscheduled income benefit is paid or payable for the permanent partial or total loss or loss of use of a member or organ of the body no additional benefit shall be payable for disfigurement. See Idaho Code § 72-430.

Loss of Sight

Idaho Code § 72-407 provides that the total and permanent loss of sight in both eyes is considered a total and permanent injury unless the employer can show by clear and convincing evidence that the claimant is not totally and permanently disabled.

If the employee has a total loss of vision in one eye or loss of one eye by enucleation, the employee shall receive, in addition to the income benefits payable during the period of recovery, income benefits for such permanent disability in an amount equal to fifty-five percent (55%) of the average weekly state wage stated against 150 weeks and 175 weeks, respectively. Idaho Code § 72-428.

Loss of Hearing

If the employee has a total loss of binaural hearing, the employee shall receive, in addition to the income benefits payable during the period of recovery, income benefits for such permanent disability in an amount equal to fifty-five percent (55%) of the average weekly state wage stated against 175 weeks. Idaho Code § 72-428.

Penalties

Penalties may be assessed against an employer and/or its surety for a variety of reasons. These include failure to secure compensation by the employer. If payment of compensation is not secured by insurance or as otherwise required, the employee is given all of the compensation to which the statute entitles him together with an amount equal to 10% of the total of his compensation and costs and reasonable attorney’s fees. Idaho Code § 72-210.

Further, an employer may be held liable for worker’s compensation claims of employees of his contractors and subcontractors if the contractors and subcontractors have not complied with Idaho Code § 72-301 requirements to secure worker’s compensation for an injured employee. This does not release the contractor or subcontractor from liability to the employee, and it only applies if the employee was injured performing work on the employer’s job at the time of the accident giving rise to the injury. Idaho Code § 72-216. The employee may not recover a dual recovery, and the employer obtains a subrogated right to recover what it is required to pay out as against the contractor or subcontractor who should have obtained the coverage for the employee. The contractor is likewise given a subrogated right to recover anything it is required to pay on behalf of a subcontractor that has not obtained the required coverage. Idaho Code § 72-216(3)(b).

A statutory employer who carried worker’s compensation insurance is not liable to an employee of an uninsured subcontractor for the additional 10% of compensation plus costs and attorney’s fees imposed on an employer under Idaho Code § 72-210 who does not carry worker’s compensation insurance.

Idaho Code § 72-318 provides a misdemeanor penalty for any attempt by an employer to have an employee pay any portion of premiums or other costs of worker’s compensation coverage. The destruction of records in an effort to avoid liability for an injury also is a misdemeanor under the statute.

There are a number of other penalties, including penalties for failure to designate agent for service; failure to allow inspection of records by insurer; failure to pay premium tax; misrepresentation of premium tax payments; failure to file litigation expense records; failure to keep records of injuries; failure to file reports; failure to maintain employment records; failure to file notices-tolling of limitations statutes; contempt power of commission; suspension of right to employ; power to issue and enforce safety rules; violation of commission orders. Idaho Code 72-101 et. seq.

Interest

Idaho Code § 72-734 provides that interest will be assessed on the outstanding balances of awards. Interest is to accrue on awards of the Commission at the rate set by Idaho Code § 28-22-104(2) from the date of entry of the Commission’s decision until the award is paid.

Costs

Idaho Code § 72-210 provides if an employer fails to secure payment of compensation as required by Idaho workers’ compensation law, an injured employee, or one contracting an occupational disease, or his dependents or legal representative in case death results from the injury or disease, may claim compensation under the worker’s compensation law, and shall be awarded, in addition to compensation, an amount equal to ten per cent (10%) of the total amount of his compensation together with costs, if any, and reasonable attorney's fees if he has retained counsel.

Counsel Fees

Idaho Code § 72-804 provides that if it is found a claim has not been reasonably contested by the employer or surety or compensation has not been paid within a reasonable time or has been unreasonably discontinued, the employer or the surety may be required to pay reasonable attorney’s fees as may be fixed by the Industrial Commission. Whether the fees should be awarded is a factual determination for the Commission. Lopez v. Amalgamated Sugar Co., 107 Idaho 590, 691 P.2d 1205 (1984).

Death Benefits

Widow/Widower

Idaho Code § 72-412(1) provides that a widow is paid income benefits until either her death or her remarriage, but that in no case may the time over which income benefits are paid exceed 500 weeks. Idaho Code § 72-412(2) provides that a widower shall be paid death benefits “during disability” or until remarriage, but in no case to exceed 500 weeks.

Death Benefits/Children

Idaho Code § 72-412(3) provides that a child will receive income benefits until the child reaches eighteen years of age. If the child is incapable of self-support, benefits may continue after the child reaches eighteen for an additional period but in no case in excess of 500 weeks. The number of weeks of benefits paid to the child before the child reaches the age of eighteen will be deducted from the benefits paid after the child reaches age eighteen. In any case, income benefits payable to or for any child cease when that child marries.

Death Benefits/Parents and Siblings

Idaho Code § 72-412(5) provides that a grandchild, brother or sister, may receive income benefits during a period of dependency, but in no case may the benefits exceed 500 weeks.

Death Benefits/Amounts of Benefits

Idaho Code § 72-102(4) provides "Burial expenses" means a sum, not to exceed six thousand dollars ($6,000) for funeral and burial or cremation, together with the actual expenses of transportation of the employee's body to his place of residence within the United States or Canada.

Idaho Code § 72-413 provides that a dependent widow or widower, in the event there are no dependent children, will receive 45% of payable benefits. If there are dependent children, an additional 5% of the average weekly state wage for each dependent child to and including a total of three.

If there is no dependent widow or widower, a dependent child or children will receive 30% of the average weekly state wage for one child and 10% for each additional child to and including a total of three, to a maximum not to exceed 60% of the average weekly state wage, to be divided equally among the children.

To the parent, if one be wholly dependent for support upon the deceased employee at the time of his death and the other is not dependent to any extent 25% of the average weekly state wage; if both are wholly dependent, 20% of the average weekly state wage to each; if one be or both are partly dependent, a proportionate amount in the discretion of the Commission.

The above percentages shall be paid if there be no dependent widow, widower or child. If there be a widow, widower or child, there shall be paid so much of the above percentages as, when added to the total percentage payable to the widow, widower and children will not exceed a total of 60% of the average state weekly wage.

To the brothers, sisters, grandparents and grandchildren, if one (1) be wholly dependent upon the deceased employee at the time of his death, twenty per cent (20%) of the average state weekly wage to such dependents; if more than one be wholly dependent, thirty per cent (30%) of the average state weekly wage, divided among such dependents, share and share alike. If there be no one (1) of them wholly dependent, but one (1) or more partially dependent, ten per cent (10%) of the average state weekly wage divided among such dependents, share and share alike.

The above percentages shall be paid if there be no dependent widow, widower, child or parent. If there be a dependent widow, widower, child or parent, there shall be paid so much of the above percentages as, when added to the total percentages payable to the widow, widower, children and dependent parents, will not exceed a total of sixty per cent (60%) of the average weekly state wage.

Payments made for and on behalf of a dependent child or children shall be made to such child's or children's natural or adoptive surviving parent for the use and benefit of the child or children, if such child or children reside with such parent, notwithstanding the remarriage of such parent; provided, however, if the care and the custody of such child or children has been awarded by a court of competent jurisdiction of this state or any other state to a person or persons other than the child's or children's natural or adoptive parent, then such payments shall be made to that person or those persons so awarded care and custody for the use and benefit of the child or children. Whenever the Commission deems it necessary, it may direct any payments made hereunder to be made under such terms and conditions as it deems necessary.

Medical Benefits

An employer is required to provide reasonable medical, surgical or other attendance or treatment immediately after an injury or disability from an occupational disease and must provide it for a reasonable time thereafter. Idaho Code § 72-432(1).

An employee who seeks medical care in a manner not provided for in Idaho Code § 72-432, or as ordered by the Industrial Commission, shall not be entitled to reimbursement for costs of such care.

An injured employee shall be reimbursed for his expenses of necessary travel in obtaining medical care. Idaho Code § 72-432(13). Reimbursement for transportation expenses, if the employee utilizes a private vehicle, shall be at the mileage rate allowed by the State Board of Examiners for state employees; provided however, that the employee shall not be reimbursed for the first fifteen (15) miles of any round trip, nor for traveling any round trip of fifteen (15) miles or less. Id. Such distance shall be calculated by the shortest practical route of travel. Id.

An employee who leaves the locality where employed at the time of the industrial accident, or manifestation of an occupational disease, or the locality in which the employee currently is receiving medical treatment for the injury, shall give timely notice to the employer and surety of the employee's leaving the locality. Idaho Code § 72-432(14). The employer or surety may require the claimant to report to the treating physician for examination prior to leaving the locality, if practical. Idaho Code § 72-432(14). If an examination by the treating physician is not practical prior to leaving the locality, the employer or surety may assist in arranging an examination by an appropriate physician in the new locality. Id. After receiving notice of relocation, the employer or surety shall have the same responsibility to furnish care as set forth in Idaho Code § 72-432(1). Id.

The employer is responsible for replacement or repairs of appliances and prostheses. Idaho Code § 72-432(2). However, if the employee changes jobs, the prior employer will not be responsible for replacement or repair of the prostheses that is damaged or destroyed in a subsequent industrial accident.

The commission has the power, upon a proper showing, to require any other medical services and may in fact order changes in physician, the hospital or rehabilitation facility when the Commission finds that such a change is desirable for the benefit of the injured worker. Idaho Code § 72-432(3).

If the employee does not feel that he is obtaining proper medical care, he may petition the Commission for a change of physician. Idaho Code § 72-432(4)(a). However, if the employee does not give notice to the employer that he is obtaining treatment from another physician, then the employer will not be obligated to pay for the services obtained and by extension neither will the employer surety. Idaho Code § 72-432(5)

The employer is under a fiduciary type obligation to pass on knowledge to the employee of the availability of medical care or treatment which may improve his condition even when his own doctor may not recommend such are or treatment to him. See e.g. Paulson v. Idaho Forest Industries, Inc., 99 Idaho 896, 591 P.2d 143 (1979). Neither the employer nor the surety may fail to pass on recommendation of additional treatment when they are brought to their attention. Id.

Medical care need not be curative to be compensable. True v. Latah Care Center, 94 I.W.C.D. 68 at 9109 (1996).

Costs of care and tests to determine if a condition is accident related are the employer’s obligation. Lords v. Elliot Industrial Co., 85 I.W.C.D. 84 at 933 (1985).

The employee is not allowed income benefits for the first five days of disability from work unless the injury results in disability from work exceeding two weeks in which case income benefits are allowed from the date of the disability or unless the injury results in the employee being hospitalized as an inpatient in which case the waiting period does not apply. Idaho Code § 72-402.

If an injured employee refuses or unreasonably fails to seek physically or mentally suitable work, or refuses or unreasonably fails or neglects to work after such suitable work is offered to, procured by or secured for the employee, the injured employee shall not be entitled to temporary disability benefits during the period of such refusal or failure. Idaho Code § 72-403.

In cases of permanent disability less than total, if the degree or duration of disability resulting from an industrial injury or occupational disease is increased or prolonged because of a preexisting physical impairment, the employer shall be liable only for the additional disability from the industrial injury or occupational disease. Idaho Code § 72-406.

Any income benefits previously paid an injured workman for permanent disability to any member or part of his body shall be deducted from the amount of income benefits provided for the permanent disability to the same member or part of his body caused by a change in his physical condition or by a subsequent injury or occupational disease. Idaho Code § 72-406.

Refusal of Medical Treatment

If an injured employee unreasonably fails to submit to or in any way obstructs an examination by a physician or surgeon designated by the commission or the employer, the injured employee's right to take or prosecute any proceedings under this law shall be suspended until such failure or obstruction ceases, and no compensation shall be payable for the period during which such failure or obstruction continues.

SUBROGATION OR CREDIT

General Rule

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 worker's compensation benefits the employer paid; conversely, in those situations where the employer is negligent, the employer is denied this reimbursement to the extent of the employer’s negligence and the third party is entitled to a credit against any judgment in the amount of the worker's compensation benefits the employer paid. Barringer v. State, 111 Idaho 794, 727 P.2d 1222 (1986). Thus, the employee's award is reduced by the amount of worker's compensation he received; in either event, the employee does not retain both the worker's compensation benefits and the full tort recovery. It is worth noting that most, if not all, claimants’ counsel take the position that any negligence attributable to the employer precludes the employer’s recovery in its entirety. Although the analysis in Barringer post dates the language relied upon by claimants’, there is nevertheless sufficient ambiguity that the issue likely will need to be resolved by Idaho’s appellate courts.

Idaho Code § 72-223 governs an employee’s right to recover from third-parties liable for causing the injury, death or disease for which the employee also holds a right to compensation under Idaho’s workers’ compensation law. An employee’s right to recover against third-parties who also are liable is unaffected by the applicability of Idaho’s workers’ compensation law. Furthermore, an employer (including its surety) who pays benefits for death, disease or injury caused by a third-party is subrogated to the rights of the employee to the extent of payment. That right of subrogation is subject to being reduced by the percentage of negligence attributable to the employer (either directly or vicariously.) Furthermore, any recovery by the employer is limited to the benefits paid and is apportioned on a pro-rata basis.

Attorney’s Fee

Idaho Code § 72-223(4) provides that unless otherwise agreed, upon any recovery by the employee against the third party, the employer shall pay or have deducted from its subrogated portion thereof, a proportionate share of the costs and attorney's fees incurred by the employee in obtaining such recovery unless one (1) or more of the following circumstances exist:
1.       If prior to the date of a written retention agreement between the employee and an attorney, the employer has reached an agreement with the third party, in writing, agreeing to pay in full the employer's subrogated interest;
2.       If the employee alleges or asserts a position in the third party claim adverse to the employer, then the commission shall have jurisdiction to determine a reasonable fee, if any, for services rendered to the employer;
3.       If there is a joint effort between the employee and employer to pursue a recovery from the third party, then the commission shall have jurisdiction to determine a reasonable fee, if any, and apportion the costs and

attorney's fees between the employee and employer.

Credits

If the amount recovered from the third party exceeds the amount of the subrogated portion payable to the employer for past compensation benefits paid, then to the extent the employer has a future subrogated interest in that portion of the third party recovery paid to the employee, the employer shall receive a credit against its future liability for compensation benefits. Idaho Code § 72-223(5). Such credit shall apply as future compensation benefits become payable and the employer shall reimburse the employee for the proportionate share of attorney's fees and costs paid by the employee in obtaining that portion of the third party recovery corresponding to the credit claimed. Id. The employer shall not be required to pay such attorney's fees and costs related to the future credit prior to the time the credit is claimed. Id. However, the employer and employee may agree to different terms if approved by the Industrial Commission.

ATTORNEYS

Certifying Organization

Any attorney admitted to the Idaho State Bar may practice in front of the Idaho Industrial Commission. The Idaho State Bar Association does not certify specialists. Certification as a “specialist” requires the attorney to meet the requirements of an organization approved by the Idaho State Bar Association to certify attorneys as specialist. Currently, the only organization recognized by the Idaho State Bar Association as qualified to certify attorneys as specialists in the practice of workers’ compensation law is the Idaho Trial Lawyers Association (“ITLA”). Upon successful completion of the ITLA’s application process, written exam and approval by its Certification of Specialization Committee, the attorney will be certified for five years. Certification is renewable provided the attorney maintains an active trial practice in the area of workers’ compensation law.

Required Documentation

An attorney applying for certification as a specialist in the area or workers’ compensation law must provide documentation that the attorney:
1.       is a member in good standing of the Idaho Bar Association;
2.       has been practicing for at least five years; and
3.       has participated in at least 30 hours of continuing legal education in the field of workers’ compensation law in the past three years.

Additional Information

The attorney seeking certification also must provide the ITLA with references from two judges and ten attorneys, and have acted as lead counsel in jury and court trials in the area of workers’ compensation. Additional information may be found at the ITLA’s website via the following link:
http://www.itla.org/ID/index.cfm?event=showPage&pg=WhatIsCertification

CLAIMS PROFESSIONALS

All sureties and licensed adjusters who service Idaho workers’ compensation claims must maintain an office in Idaho. IDAPA 17.02.03.051.01.

LITIGATION AND APPEAL

The Idaho Industrial Commission Has Exclusive Jurisdiction

Idaho Code § 72-701, in conjunction with Idaho code § 72-211, confers upon the Idaho Industrial Commission exclusive jurisdiction over all claims for injuries arising out of employment. Accordingly, the Idaho Supreme Court has found that direct civil claims in the Idaho courts generally are barred. Henderson v. State, 110 Idaho 308, 715 P.2d 978 (1986), cert denied, 477 U.S. 907, 106 Sup. Ct. 3282 (1986). In order to bring a direct claim against an employer in the Idaho courts, the employee must allege the existence of a tort not covered by the statute, such as an intentionally inflicted injury resulting from the willful and unprovoked aggression of the employer. Idaho Code § 72-209(3); Yeend v. UPS, Inc., 104 Idaho 333, 659 P.2d 87 (1982). The courts do, however, have jurisdiction over employment contract issues. Selkirk Seed Co. v. State Ins. Fund, 135 Idaho 649, 22 P.3d 1028 (2000).

Proceedings Before the Idaho Industrial Commission

The Idaho Industrial Commission is an executive department of the state government, consisting of three members appointed by the governor, one of whom must be an attorney licensed to practice law in Idaho. Idaho Code §§ 72-501(1); 72-501(4). The members of the Commission select one of their members to act as Chairman, and select a “qualified” person (who need not be a Commission member) to act as Secretary. Idaho Code § 72-504. Unless otherwise specifically provided for in Idaho’s Workers’ Compensation statute, there is a presumption that the Industrial Commission has jurisdiction to determine all questions arising under the workers’ compensation law. Idaho Code § 72-707. The Idaho Supreme Court has read § 72-707 expansively. See Brooks v. Standard Fire Ins. Co., 117 Idaho 1066, 793 P.2d 1238 (1990) (finding that the Commission had authority to order reimbursement between insurance carriers for benefits paid to a claimant). Any member of the Commission may act on behalf of the Commission for purposes of an investigation, inquiry or hearing, and the Commission has the power to appoint a referee, examiner or hearing officer to do the same. Idaho Code § 72-506(1). Any finding, order, decision or award of a Commission member, hearing officer, referee, or examiner, if approved by the Commission and ordered filed, is deemed to be a finding, order, decision or award of the Commission. Idaho Code § 72-506 (2).

Procedure

Proceedings before the Idaho Industrial Commission are governed by the Judicial Rules of Practice and Procedure Under the Idaho Workers’ Compensation Law (“JRP”), in conjunction with the Idaho Code. The JRP prescribes pleading format, filing deadlines, discovery methods, hearing procedures, and additional rules governing proceedings before the Commission.

Proceedings before the Industrial Commission are initiated by filing a “complaint” in the form prescribed by the Commission. JRP 3, App. 1. The party making the complaint must serve a copy of the complaint on all other parties to the action within 60 days of filing the complaint. JRP 4(B). Each party served with the complaint must file an answer within twenty-one days of the date of service. JRP (4)(C).

The parties may obtain discovery through the use of depositions, written interrogatories, or requests for production. JRP 7(A). Requests for admissions are not allowed. JRP 7(B). The Commission has subpoena power as to witnesses and documents, may administer oaths, and may take testimony. Idaho Code § 72-709.

The JRP provides that the Commission may hold a prehearing conference to discuss the dispute. JRP 8(A). The prehearing conference may address any matter that a party and/or the Commission deems relevant, including mediation, clarification of the issues, amending the pleadings, discovery, evidence, and whether the case should be heard by the full Commission or by a referee appointed by the Commission.

Settlement

At any point in the resolution process, mediation may be requested, and if agreed to by the opposing party the Commission will schedule a mediation. JRP 17(C). Mediation proceedings are treated as settlement negotiations, and all communications conducted pursuant thereto are confidential. JRP (D)(3). If the mediation is successful, the parties must submit a written settlement agreement to the Commission for approval. JRP 17(E).

The parties may agree to a lump sum settlement. Idaho Code § 72-404; JRP 18. However, any proposed lump sum settlement payment must be approved by the Commission. Id. The Commission’s decision to approve or reject a proposed lump sum settlement is a final decision that is subject to a motion for reconsideration or rehearing under Idaho Code § 72-718. Davidson v. H.H. Keim Co., 110 Idaho 758, 718 P.2d 1196 (1986).

If an issue in a case cannot be resolved by prehearing conferences or otherwise, and upon application by a party to the proceedings or by order of the Commission, a hearing will be held to determine the issue. Idaho Code § 72-712; JRP 8(C). The Commission is required to give at least ten days’ written notice of the time and place for the hearing, and of the issues to be heard. Idaho Code § 72-713. Hearings are held before one or more Commissioners, or the Commission may appoint a referee, to act as “Presiding Officer” at the hearing. JRP 10(A). Witness testimony (including by deposition) and evidence are presented at the hearing. Any medical records signed and dated by a physician may be presented as evidence and are not subject to exclusion as hearsay. JRP 10(G). A claimant must present medical testimony to a reasonable degree of medical probability in support of a claim for compensation. Cole v. Stokely Van Camp, 118 Idaho 173, 795 P.2d 872 (1990). The claimant also must prove that the injury is causally related to an accident occurring in the course of his employment. Trimble v. Engelking, 130 Idaho 300, 939 P.2d 1379 (1997).

Rules of equity govern the Commission’s decisions, and the Commission therefore is not bound by strict rules of evidence or procedure in conducting the hearing. Idaho Code § 72-708; Fauling v. Farmers Coop Ditch Co., 54 Idaho 326, 31 P.2d 683 (1934); Mazzone v. Tex. Roadhouse, Inc., 302 P.3d 718 (2013). For instance, the Idaho Supreme Court has held that the Commission has discretionary power to consider any trustworthy evidence, even if it would not be admissible in court. Thom v. Callahan, 97 Idaho 151, 540 P.2d 1330 (1975). The workers’ compensation law's goal of promoting equity dictates that the primary purpose of proceedings before the Industrial Commission is the attainment of justice in each individual case. Hagler v. Micron Tech., Inc., 118 Idaho 596, 798 P.2d 55 (1990). The Commission has authority to assess attorney fees against an employer or its surety if the Commission finds a claim for compensation was denied unreasonably. Idaho Code § 72-804; Bradley v. Wash. Group Int.’l, 141 Idaho 655, 115 P.3d 746 (2005).

Following a hearing, the Commission will issue and file a written decision, including a transcript of the evidence, findings of fact, rulings of law, award or order, with a copy of the decision being mailed to the parties. Idaho Code § 72-716. The decision of the Commission becomes final unless a party moves for reconsideration or rehearing within twenty days of the date the decision is filed. Idaho Code § 72-718. However, as opposed to pure res judicata in which all matters that were or could have been adjudicated become final, only those matters actually adjudicated become final and conclusive unless timely contested. Woodvine v. Triangle Dairy, Inc., 106 Idaho 716, 682 P.2d 1263 (1984).

Request for Reconsideration

Any request for reconsideration of a decision by the Commission must be filed within twenty days after the decision is filed by the Commission. Idaho Code § 72-718. The Commission is not obligated to grant a request for reconsideration. Curtis v. M.H. King co., 142 Idaho 383, 128 P.3d 920 (2005). Within the twenty-day period, the Commission also may choose to rehear or reconsider its decision sua sponte.

Idaho Code § 72-718 does not bar a claimant from seeking a change in condition determination. Such a request must be made no later than five years following the original injury. Sund v. Gambrel, 127 Idaho 3, 896 P.2d 329 (1995).

Appeals

Idaho Appellate Rule 14(b) governs appeals from the Industrial Commission. Accordingly, such appeals must be made within forty-two days after the decision, order, or award is filed. Only a final decision of the Commission is subject to appeal. The Idaho Supreme Court has not clearly defined what constitutes a final decision for purposes of determining whether the issue is appropriate for appeal. However, the Court has indicated that the test is whether all issues that the Commission might address have been decided. For instance, any decision over which the Commission reserves jurisdiction cannot be appealed. Jensen v. The Pillsbury Co., 121 Idaho 127, 823 P.2d 161 (1992). Also, an interlocutory order of a referee, unless adopted by the Commission, is not appealable. Wheaton v. Indus. Special Indem. Fund, 129 Idaho 538, 928 P.2d 42 (1996).

The Idaho Supreme Court also has, on occasion, granted permissive appeals of “non-final” rulings under Rule 12 of the Idaho Appellate Rules. Idaho Appellate Rule 12(b) provides that a party seeking permissive appeal of an interlocutory order must first, within fourteen days of the date the order was entered, file a motion for permissive appeal with the lower court or administrative agency. If the lower court or administrative agency denies the motion, then the party may file a motion with the Idaho Supreme Court, requesting acceptance of the appeal. Acceptance of the requested permissive appeal turns on whether the court feels the question is one involving a controlling and contested point of law. I.A.R. 12(a).

Appeal from a final decision of the Industrial Commission may, as a matter of right, be taken directly to the Idaho Supreme Court “within such times and in such manner as prescribed by Rule of the Supreme Court.” Idaho Code § 72-724. Per Idaho Code § 72-732, grounds for appeal are:
1.       The commission’s findings of fact are not based on any substantial competent evidence;
2.       The commission has acted without jurisdiction or in excess of its powers;
3.       The findings of fact, order or award were procured by fraud;
4.       The findings of fact do not as a matter of law support the order or award.

The Idaho Supreme Court applies an abuse of discretion standard in reviewing decisions by the Industrial Commission. Cantu v. J.R. Simplot Co., 121 Idaho 585, 826 P.2d 1297 (1992). Findings of fact should be upheld if supported by competent and substantial evidence construed most favorably to the prevailing party. Vernon v. Omark Indus., 115 Idaho 486, 767 P.2d 1261 (1989). The competent and substantial evidence standard is consistent with the clearly erroneous standard. Hart v. Deary High Sch., 126 Idaho 550, 887 P.2d 1057 (1994).

On questions of law, the Court exercises free review. Combs v. Kelly Logging, 115 Idaho 695, 769 P.2d 572 (1989). However, the Court will presume that the proper law was applied, and will not disturb the Commission’s decision on a point of law unless the Commission specifically misstated the law. Peterson v. Farmore Pump & Irrigation, 119 Idaho 969, 812 P.2d 276 (1991).

INSURANCE

General Rule

Every employer liable for workers’ compensation benefits in Idaho must either insure through a “surety authorized by the director of the department of insurance to transact such insurance” (or through the state insurance fund, if a public employer) or qualify as self-insured by obtaining approval of the Commission and maintaining security requirements, as determined by the Commission. Idaho Code § 72-301.

Statutory Exemptions

Idaho Code § 72-212 provides that certain forms of employment are not covered under Idaho’s workers’ compensation law. Idaho Code § 72-213 permits an employer otherwise exempt under Idaho Code § 72-212 to opt into the workers’ compensation scheme. An employer subsequently may revoke election into the workers’ compensation scheme. Idaho Code § 72-214.

Particular Requirements

“No surety shall be permitted to transact workmen’s compensation insurance covering the liability fo employers under [Idaho’s workers’ compensation] law unless it shall have been authorized to do business under the laws of [Idaho] and until it shall have received the approval of the commission.” Idaho Code § 72-301. Such sureties are required to deposit with the state treasurer money or bonds in an amount equaling the total unpaid compensation awards against the surety. The funds deposited with the treasurer are held in trust for the benefit of the employees of the insured employer in case of default by the surety or employer, and may not be withdrawn for one year after the surety discontinues doing business in the state of Idaho or while any suit, judgment, or award against the employer is pending or remains unpaid. Idaho Code § 72-302; see also IDAPA 17.02.03 regarding additional specific requirements applicable to an insurer seeking to write workers’ compensation insurance in Idaho.

Exclusiveness of Liability

The liability of an employer under Idaho’s workers’ compensation law is exclusive, and employers are legally immune from suit by an employee based on work-related injuries. Idaho Code § 72-209; Tucker v. Union Oil Co., 100 Idaho 590, 603 P.2d 156 (1979). The employer’s exemption from liability also extends to the employer’s surety. Idaho Code § 72-209(3). However, the exemption does not apply in cases where the injury or death was caused by the willful or unprovoked physical aggression of the employer. Id.       

General Rule Where Employer is Uninsured

Any employer liable for workers’ compensation benefits in Idaho who fails to secure payment of such benefits “shall be guilty of a misdemeanor.” Idaho Code § 72-319. If the employer is a corporation, the officer or employee responsible for securing workers’ compensation coverage likewise may be found guilty of a misdemeanor, and may be held personally liable for compensation to an injured employee.

Where the Industrial Commission finds that an employer has not complied with the statutory requirement to secure workers’ compensation benefits, the Commission also may assess monetary penalties against the employer pursuant to Idaho Code § 72-319. The attorney general may then file an action in district court to collect the assessed penalties. State ex rel. Indus. Comm.’n v. Quick Transp., Inc., 134 Idaho 240, 999 P.2d 895 (2000).

The monetary penalty for failure to secure compensation is $2.00 per day per employee or $25.00 per day, whichever is greater, for each day during which the failure continues, with the caveat that the penalty cannot extend beyond three consecutive years. Idaho Code § 72-319(4). If the employer is a corporation, the officer or employee responsible for securing workers’ compensation coverage may be found individually liable for the penalty. Id. Any amount collected as a monetary penalty will be placed in the state industrial administration fund. Id.

An employer that has been assessed a penalty pursuant to Idaho Code § 72-319(4) within the previous three years, and who subsequently fails to secure compensation shall be liable for an additional penalty of $500 for the second failure, and a penalty of $1,000 for the third and any further failures. Idaho Code § 72-319(6).

Further, Idaho Code § 72-319(5) permits the district court to enjoin an employer from carrying on its business as a penalty for a prolonged failure to secure coverage. The district court’s jurisdiction to enter such an injunction is triggered where the employer’s failure to secure coverage continues for a period of at least 30 days, and the Industrial Commission is forced to seek injunctive relief against the employer in the name of the state.

Damages by Action at Law Where Employer is Uninsured

The rights and remedies provided pursuant to Idaho’s workers’ compensation law “exclude all other rights and remedies of the employee . . . at common law or otherwise, on account of [occupational] injury or disease.” Idaho Code § 72-211. Therefore, a person injured in the course of employment has only one claim against the employer, and that claim is under the workers’ compensation statute. Baker v. Sullivan, 132 Idaho 746, 979 P.2d 619 (1999). The Idaho Industrial Commission has exclusive jurisdiction over claims arising out of an in the course of employment. Henderson v. State, 110 Idaho 308, 715 P.2d 978, cert denied, 477 U.S. 907, 106 S. Ct. 3282 (1986).

Idaho Code § 72-210 provides that where an employer that fails to secure compensation as required by the workers’ compensation law, an injured employee may recover from the employer full benefits allowable under the workers’ compensation law, plus an amount equal to 10% of said compensation, along with costs and reasonable attorney fees. Where it is shown that the required coverage was not in place, the penalty must be imposed by the Industrial Commission, and no showing of scienter or bad faith is required. Heese v. A&T Trucking, 102 Idaho 598, 635 P.2d 962 (1981). Also, the employee is not required to make a claim under § 72-210 in order to be entitled to the additional award; the Commission is obligated to make the additional award upon a proper showing that the employer did not secure payment. Mortimer v. Riviera Apts., 122 Idaho 839, 840 P.2d 383 (1992).