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Wutherich v. Terteling Company3/29/2001
eferral from his treating physician... because he would not allow Dr. Zimmerman's records to be released, and because Drs. Stowell, Cox, and Lyons indicated he suffered from a pre-existing degenerative condition and did not feel surgery was required to treat his condition. Surety's assertions are without merit. Employer told Claimant his compensation claim was denied when he returned to work on February 26, 1998, and that he should seek further medical care under his health insurance from his provider of choice. He did so. Claimant saw Dr. Fender, his personal physician, who immediately referred him to Dr. Zimmerman. Claimant signed a medical release on his first visit to Dr. Zimmerman for Employer. The word "degenerative" does not appear in any of the records submitted to the Commission from Drs. Stowell and Cox, or in the January 27, 1998, cervical spine MRI report. Moreover, Surety knew, or should have known, after the March 24, 1998, surgery by Dr. Zimmerman, that the subligamentus disk he removed was not calcified; clear evidence there was no degenerative condition. Under these circumstances, the Referee finds Surety's arbitrary denial of benefits for the reasons it cited as unreasonable. Thus, the Referee concludes Claimant is entitled to attorney's fees as provided for by Idaho Code § 72-804.
The Commission's opinion illustrates they did not award benefits because the surety had simply relied on its own physician's opinions. The award of attorney fees was based on the unsubstantiated reasons for the denial of benefits articulated in the May 15, 1998 letter. The record clearly establishes the assertions on which the denial of benefits was based were unfounded. Because the Commission's finding that the employer and surety arbitrarily and unreasonably denied benefits to Wutherich is supported by substantial and competent evidence in the record, we uphold the award of attorney fees.
B. Attorney Fees and Costs on Appeal.
Idaho Code § 72-804 allows for an award of attorney fees on appeal if this Court determines that an appeal was brought without any reasonable basis. Seamans v. Maaco Auto Painting, 128 Idaho 747, 754, 918 P.2d 1192, 1999 (1996). Furthermore, attorney fees and costs are properly awarded when an appeal asks this Court to do nothing more than reweigh the evidence submitted to the Commission. Duncan v. Navajo Trucking, 134 Idaho 202, 204, 998 P.2d 1115, 1117 (2000)(citing Baker v. Louisiana Pacific Corp., 123 Idaho 799, 853 P.2d 544 (1993)). The employer and surety are merely asking this Court to reweigh the evidence presented to the Commission; therefore, attorney fees and costs on appeal are appropriate.
IV. CONCLUSION
The decision of the Industrial Commission awarding attorney fees is affirmed. Attorney fees and costs on appeal are awarded to Wutherich.
Justices SCHROEDER, WALTERS, KIDWELL and EISMANN, CONCUR.
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