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Wutherich v. Terteling Company3/29/2001
2001 Opinion No. 18
Boise, January 2001, Term
Frederick C. Lyon, Clerk
Appeal from the Industrial Commission of the State of Idaho.
Industrial Commission grant of attorney fees under I.C. § 72-804, affirmed.
This is an appeal from an Industrial Commission ("Commission") order granting benefits and awarding attorneys fees to claimant, Jeff Wutherich, for injuries suffered during a workplace incident. On appeal, Terteling Company, Inc., d/b/a Western States Equipment ("employer"), and John Deere Insurance Company ("surety"), contest the award of attorney fees.
I. FACTUAL AND PROCEDURAL BACKGROUND
Wutherich began working as a parts warehouse person for employer on March 7, 1994. Employer sells and services heavy equipment and Wutherich's position involved loading and unloading heavy freight, filling orders, servicing batteries, and making hydraulic hoses. On November 11, 1997, Ronald L. Davis, employer's inventory control manager, physically confronted Wutherich at work. During the confrontation Wutherich was looking away when Davis shoved Wutherich backwards causing Wutherich's head to snap forward. Wutherich felt a clicking or snapping in his neck then a stabbing pain. Wutherich left the area. Shortly after the incident Wutherich's hands turned white and became cold, he felt numbing in his fingers, and developed a headache.
Wutherich visited various doctors recommended by Surety including Dr. Wajeeh E. Nasser, Dr. Julia J. Hanrahan, Dr. Eric D. Stowell, Dr. Rodde D. Cox, and Dr. George R. Lyons. Each of these doctors opined that Wutherich had suffered from some type of cervical strain, the injury was a pre-existing degenerative disease unrelated to the incident at work, and surgery was not required. The employer told Wutherich he could pursue any medical attention of his choice using his own health care plan since his condition was no longer covered by worker's compensation. Wutherich then visited his own physician, Dr. Fred W. Fender, who referred Wutherich to a neurosurgeon, Dr. Christian G. Zimmerman. Dr. Zimmerman ultimately performed an anterior cervical micro diskectomy and allgraft fusion with Atlantis plating at C5-6 of Wutherich's neck. Dr. Zimmerman's postoperative diagnosis was a herniated nucleus pulposus at C5-6 and a subligamentus disk herniation. Dr. Zimmerman later opined in his deposition that Wutherich's herniated disk was related to the incident at work.
In the letter denying benefits to Wutherich, the surety refused to pay the costs associated with Wutherich's visits to Dr. Zimmerman because Wutherich had failed to receive a referral from his treating physician to visit Dr. Zimmerman, Wutherich would not release Dr. Zimmerman's records to the surety, and because Drs. Stowell, Cox, and Lyons opined that his condition was a result of a pre-existing degenerative condition not requiring surgery.
On June 1, 1998, Wutherich filed a worker's compensation complaint for an injury suffered during the November 11, 1997 incident. A referee heard arguments on the complaint and entered findings of fact, conclusions of law and a recommendation granting Wutherich compensation benefits and awarding attorney fees pursuant to Idaho Code § 72-804. The Commission accepted the referee's recommendation on July 30, 1999. The surety filed a motion to reconsider the award of attorney fees, which the Commission denied. On October 22, 1999, Wutherich filed a claim for the amount due for attorney fees, to which the surety objected. The Commission entered an order awarding $7,395.32 attorney fees from which the surety appeals.
II. STANDARD OF REVIEW
In appeals
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