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Zapata v. J. R. Simplot Co.3/3/1999
Twin Falls, November 1998 Term
Frederick C. Lyon, Clerk
Appeal from the Industrial Commission of the State of Idaho.
Appeal from an Industrial Commission decision setting appellant's personal partial disability rating. Affirmed.
This is a review of a decision of the Industrial Commission (the Commission) in a worker 's compensation case. Appellant Carmen Zapata (Zapata) appeals an order of the Commission adopting the findings of fact and Conclusions of law of the referee, but reducing the referee's recommended permanent partial disability rating.
I.
FACTS AND PROCEDURAL BACKGROUND
A. Facts
Zapata was born and raised in Texas and considers McAllen, Texas to be her permanent residence. She began working part-time with her parents performing agricultural labor at the age of seven, and eventually obtained employment sorting potatoes for a company in Rupert, Idaho at the age of sixteen. When Zapata was eighteen or nineteen she was employed by respondent J. R. Simplot Company (Simplot) on the potato trim tables at Simplot's plant in Heyburn, Idaho. Zapata worked for Simplot until the early 1980's when she terminated her employment as part of a settlement agreement with Simplot regarding a work-related back injury. Zapata then returned to Texas where she worked for several years in various jobs.
In 1993, Zapata returned to Idaho and went to work for Simplot again. This time Zapata was employed as a machine operator, which involved a variety of miscellaneous duties on the frozen french fry production line in addition to operating machines. In February, 1994, Zapata injured her lower back when she slipped and fell while shoveling spilled french fries. At that time Zapata was 35 years old, was working 37½ hours per week, and was earning $8.50 per hour.
Zapata was diagnosed by an orthopedic surgeon, Dr. Widell, as suffering from a ruptured disc at the L5-S1 level of her spine. In May, 1994, Dr. Widell performed surgery on Zapata completing a hemilaminotomy and discectomy at the L5-S1 level. During her recovery, Zapata returned to work at Simplot in a light-duty capacity as a custodian in the cafeteria.
In September, 1994, Dr. Widell found Zapata to be medically stable and assigned her a permanent physical impairment rating of 10% of the whole person. At the request of Simplot, Zapata was seen by another orthopedist, Dr. Phillips, who agreed with the physical impairment rating of 10% of the whole person for Zapata's back injury and surgery. Both doctors indicated that Zapata could return to her pre-injury job duties as a machine operator or could work on the trim tables. Zapata continued in her cafeteria job until she was laid off by Simplot in February, 1995, at which time she moved back to Texas. In June and July, 1995, Simplot unsuccessfully attempted to contact Zapata to return to work on the trim tables.
B. Procedural Background
In June, 1995, Zapata filed a worker 's compensation complaint seeking continued medical benefits, time-loss benefits, and any disability beyond the 10% permanent partial impairment rating. In February, 1996, a hearing was held before a referee of the Commission. The only issue presented was whether Zapata had any permanent partial disability in excess of the permanent partial impairment. On July 2, 1997, the referee issued his findings of fact, Conclusions of law and recommendation, awarding Zapata a 22% permanent partial disability rating inclusive of her 10% rating.
The Commission agreed with the referee's recommended findings of fact and Conclusions of law except for the referee's determination of the
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