IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 32526

JOHN C. WICHTERMAN,

 Claimant-Appellant,

v.

J. H. KELLY, INC., Employer, and

RELIANCE NATIONAL INDEMNITY

COMPANY, Surety,

 Defendants-Respondents.

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Boise, January 2007 Term

2007 Opinion No. 37

Filed: February 23, 2007

Stephen W. Kenyon, Clerk

Appeal from the Industrial Commission of the State of Idaho.

The decision of the Industrial Commission is affirmed.

John C. Wichterman, Deer Park, Washington, appellant pro se.

Moore & Baskin, LLP, Boise, for respondents.

SCHROEDER, Chief Justice.

John Wichterman appeals from the Industrial Commission’s denial of his worker’s

compensation claim arising out of two incidents of exposure to hazardous substances in 1998.

I.

FACT SUMMARY

Wichterman, a journeyman pipe fitter, was employed by J.H. Kelly, Inc. (Employer) on a

project at a facility owned by Potlatch Corporation in Lewiston, Idaho. On September 17, 1998,

he inhaled fumes emanating from a pipe he had been directed to cut. Five days later, while

unbolting a flange on a 16-inch pipe, Wichterman was sprayed with a black liquid, some of

which he may have swallowed.

Wichterman alleges that he suffered respiratory and gastrointestinal injuries as a result of

the exposures. He has complained at various times of symptoms including coughing or difficulty
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breathing, stomach aches, and headaches. He continued to work until October 13, 1998, after

which he claims he was no longer able to work. He has not worked at any time since then.

Wichterman filed a notice of accident and claim for compensation with the Employer

which accepted the claim and voluntarily began paying medical and income benefits, including a

5% permanent partial impairment rating. By April of 2002 Employer had discontinued the

payments for income benefits but continued to provide medical benefits. Payments for medical

benefits ceased on August 18, 2004, after an independent medical examination (IME) indicated

that any remaining impairments were not causally related to the accidents.

Wichterman filed a pro se complaint with the Industrial Commission on December 26,

2002, seeking both medical and income benefits. On the advice of a Washington attorney he

filed his worker’s compensation claim in Washington rather than in Idaho and agreed to

dismissal of the Idaho claim without prejudice. The Washington claim apparently was

unsuccessful, and on October 20, 2003, Wichterman filed two additional complaints with the

Idaho Industrial Commission. The matter was heard by a referee who found that the claim for

income benefits was time barred under I.C. § 72-706 and that Wichterman failed to meet his

burden of proving that he continued to suffer an impairment as a result of the accidents. The

Industrial Commission adopted the referee’s recommendations and dismissed the claims and

denied a motion for reconsideration.

II.

STANDARD OF REVIEW

The Industrial Commission’s legal conclusions are freely reviewable by this Court;

however, its factual findings will not be disturbed on appeal so long as they are supported by

substantial and competent evidence. Idaho Const. art. V, § 9; I.C. § 72-732; Obenchain v.

McAlvain Constr., Inc., 143 Idaho, 56, 57, 137 P.3d 443, 444 (2006). The Court construes the

record most favorably to the party prevailing below, and does not try the matter anew. Hart v.

Kaman Bearing & Supply, 130 Idaho 296, 299, 939 P.2d 1375, 1378 (1997).

III.

THE CLAIM FOR IMPAIRMENT AND DISABILITY BENEFITS WAS

TIME BARRED UNDER I.C. § 72-706

Idaho Code § 72-706 limits the time within which a worker’s compensation claimant may

request a hearing on a claim previously made, providing in relevant part:
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72-706. Limitation on time on application for hearing.

. . . .

(2) When compensation discontinued. When payments of compensation

have been made and thereafter discontinued, the claimant shall have five (5) years

from the date of the accident causing the injury or date of first manifestation of an

occupational disease within which to make and file with the commission an

application requesting a hearing for further compensation and award.

(3) When income benefits discontinued. If income benefits have been

paid and discontinued more than four (4) years from the date of the accident

causing the injury or the date of first manifestation of an occupational disease, the

claimant shall have one (1) year from the date of the last payment of income

benefits within which to make and file with the commission an application

requesting a hearing for additional income benefits.

. . . .

(6) Relief barred. In the event an application is not made and filed as in

this section provided, relief on any such claim shall be forever barred.

The accidents occurred in September 1998. The last payment other than for medical benefits

was made no later than April 2002, less than four years after the accidents. Because payments

had been made and then discontinued within four years after the accident, the claim was subject

to the five year limitation under subsection (2).

Wichterman’s “complaints” constituted “application[s] requesting a hearing” for

purposes of I.C. § 72-706. Idaho Indus. Comm’n, Judicial Rules of Practice and Procedure under

the Idaho Worker’s Compensation Law, Rule 3(A) (1999) (J.R.P).1

 The first complaint, filed on

December 26, 2002, was filed within the five-year period. However, on February 14, 2003, the

parties stipulated to a dismissal without prejudice so that Wichterman could pursue his claim in

Washington, resulting in an order dismissing the complaint on February 24. The record reflects

no further filings with the Industrial Commission until Wichterman reopened his case on October

20, 2003. He filed two separate complaints at that time which do not differ materially from each

other or from the earlier complaint. One is dated September 22, 2003, and the other is dated

October 14, 2003, but both documents bear stamps indicating that they were received by the

Industrial Commission on October 20, 2003. “Filing” means actual receipt by the Commission,

as shown by the Commission’s date stamp. The Commission found that an “application

requesting a hearing” as required by I.C. § 72-706(2) was not filed until October 20, 2003,

whereas the five year limitations period expired a month earlier in September 2003. The date-

 

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 The rules were amended effective January 1, 2004—after the complaints were filed but before

the hearing was held. The changes were not material to this case except as noted.
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stamped documents in the record support this finding. The Commission correctly determined

that Wichterman’s claims were time barred as to any claims other than for medical benefits.

IV.

THE INDUSTRIAL COMMISSION’S FINDING THAT WICHTERMAN

FAILED TO MEET HIS BURDEN OF PROVING CAUSATION WAS

SUPPORTED BY SUBSTANTIAL AND COMPETENT EVIDENCE

Wichterman alleges that he continues to require medical attention for adverse respiratory

and gastrointestinal health effects caused by the exposures. Employer voluntarily paid medical

expenses until August 18, 2004, when it determined that Wichterman had “reached a point of

maximum medical improvement” and that “any need for medical care at this point is not related

to [the accidents].”

 “The claimant carries the burden of proof that to a reasonable degree of medical

probability the injury for which benefits are claimed is causally related to an accident occurring

in the course of employment.” Hart, 130 Idaho at 299, 939 P.2d at 1378. The issue of causation

must be proved by expert medical testimony, id., although the Industrial Commission as the

finder of fact may consider other evidence as well, including evidence regarding credibility.

Soto v. Simplot, 126 Idaho 536, 539-40, 887 P.2d 1043, 1046-47 (1994).

The referee found that Employer had fulfilled its obligation to provide medical care

following the exposure and for an extended period thereafter, even during periods when it

justifiably could have terminated benefits due to Wichterman’s refusal to attend an IME.

Concerning ongoing respiratory and gastrointestinal complaints, the referee found that

Wichterman had failed to meet his burden, noting that he had presented “no medical evidence in

support of his claim” and that the small amount of medical evidence favorable to the claim

placed in evidence by Employer was “completely eclipsed by the overwhelming weight of the

other credible medical evidence.” The referee continued:

None of claimant’s treating physicians, including his family practice physicians

and four pulmonary specialists, have ultimately been able to conclude that

claimant’s pulmonary complaints have any connection to his occupational

exposure. Neither have the two IME physicians that examined and evaluated

claimant. While initially his treating physicians believed claimant and did their

utmost to identify and treat his symptoms, eventually they all came to the same

conclusion—that there was no objective evidence of injury or impairment that

would account for claimant’s subjective complaints.

Similarly, none of the physicians who treated claimant for his

gastrointestinal complaints were able to identify any pathology that would
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account for his symptoms. While he was diagnosed with GERD [acid reflux

disease] and esophagitis, no physician was able to connect these conditions in any

way to his occupational exposure.

The referee found that Wichterman was not credible.

The referee’s finding which was adopted by the Commission that Wichterman failed to

meet his burden of proving causation is supported by substantial and competent evidence.

V.

WICHTERMAN HAS FAILED TO DEMONSTRATE ANY

OTHER PREJUDICIAL ERROR

A. Refusal to admit evidence.

The referee refused to admit exhibit evidence offered by Wichterman because he had

failed to disclose the exhibits to the opposing party prior to the hearing as required by J.R.P.

10(C) (2004). Wichterman has not supported this assignment of error with argument or

authority, Langley v. State, Indus. Special Indem. Fund, 126 Idaho 781, 784, 890 P.2d 732, 735

(1995), and it will not be considered.

B. Striking brief.

The parties elected to submit post-hearing briefs. Wichterman’s brief was mailed on the

due date but was not received by the Industrial Commission until two days later, and was

therefore untimely under the Industrial Commission’s rules. J.R.P. 1(B)(1), 11(a) (2004). The

referee granted Employer’s motion to strike the brief. Wichterman has not presented argument

or authority to support an assignment of error.

VI.

ATTORNEY FEES

Employer requests attorney fees on appeal pursuant to I.A.R. 11.1, which directs the

Court to award expenses, including attorney fees, incurred because of an appeal not reasonably

grounded in fact or law and filed for an improper purpose. Shriner v. Rausch, 141 Idaho 228,

232, 108 P.3d 375, 379 (2005). There is no reasonable basis for the appeal. Additionally there

are documents attached to Wichterman’s brief which appear to be altered without justifiable

explanation beyond Wichterman’s denial in his reply brief that he altered them. The appeal was

not grounded in any reasonable basis in fact or law and it appears that Wichterman has engaged

in wrongful conduct. The Employer is awarded attorney fees and expenses under I.A.R. 11.1
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VII.

CONCLUSION

The decision of the Industrial Commission is affirmed. Employer is awarded costs and

attorney fees.

Justices TROUT, EISMANN, BURDICK and JONES CONCUR.