Wilson v. Bert's Manufacturing & Sales, Inc., 120816 IDWC, IC 2012-031070

• Case Date: December 08, 2016
• Court: Idaho

MATTHEW WILSON, Claimant, v. BERT’S MANUFACTURING & SALES, INC., d/b/a BERT’S PORTABLE MINI STORAGE, Employer, and IDAHO STATE INSURANCE FUND, Surety, Defendants. No. IC 2012-031070 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho December 8, 2016           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           R.D. Maynard, Chairman          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Brian Harper, who conducted a hearing in Coeur D'Alene, Idaho, on October 1, 2015. Claimant was represented by Starr Kelso, of Coeur D'Alene. James Magnuson, also of Coeur D'Alene, represented Bert's Manufacturing & Sales, dba Bert's Portable Mini Storage, ("Employer"), and Idaho State Insurance Fund ("Surety"), Defendants. Oral and documentary evidence was admitted. Post-hearing depositions were taken and the parties submitted post-hearing briefs. The matter came under advisement on August 29, 2016. The undersigned Commissioners have chosen not to adopt the Referee's recommendation and hereby issue their own findings of fact, conclusions of law and order. The Commission disagrees with the Referee's assessment of Claimant's lumbar spine condition.          ISSUES          By agreement of the parties, the issues to be decided are:

1. Whether Claimant is medically stable, and if so, the date thereof; and

2. Whether and to what extent Claimant is entitled to the following benefits:

a. Medical care;

b. Temporary disability benefits, partial or total (TPD/TTD); and

c. Attorney fees.

         The issue of permanent disability is reserved.          CONTENTIONS OF THE PARTIES          On December 7, 2012, Claimant fell ten to twelve feet from a ladder while in the course and scope of his employment with Employer, landing on his feet. The fall resulted in injuries to Claimant's back and left knee, as well as a cut on his left elbow. Claimant asserts he is not yet at MMI with regard to his back and left knee. Claimant is entitled to all unpaid past and future anticipated medical costs associated with his industrial accident. He is also entitled to temporary disability benefits, and attorney fees.          Defendants argue Claimant suffered injury to his back and left knee in the accident in question, but received all the reasonable and necessary medical treatment to which he is entitled. Claimant has no impairment, and needs no further medical treatment related to his work injuries. Defendants do not owe Claimant any attorney fees.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. Claimant's testimony, taken at hearing;

2. The hearing testimony of witness Angelena "Kate" Ahlers;

3. Claimant's Exhibits (CE) A through P, admitted at hearing;

4. Defendants' Exhibits (DE) 1 through 14, admitted at hearing; 5. The post-hearing deposition transcript of Merle Janes, M.D., taken on December 15, 2015;

6. The post-hearing deposition transcript of J. Sorin Ispiriscu, M.D., taken on February 22, 2016; and

7. The post-hearing deposition transcript of Dennis Chong, M.D., taken on May 9, 2016.

         All objections preserved during the depositions are overruled, with the exception of the objection raised, beginning on page 22, and continuing onto page 23, of the deposition of Dr. Chong, which is sustained. Lines 10 through 22 of Dr. Chong's deposition at page 23 are stricken, and will not be considered.          FINDINGS OF FACT          1. In the course and scope of his employment on Friday, December 7, 2012, Claimant injured his back and left knee, and cut his left elbow, when he slipped off a ladder. As he fell, he positioned himself so that he landed on his feet, and rolled to his side upon impact with the ground. He took the remainder of the day off.          2. Claimant was quite sore the next day. His hips, low back, and left knee hurt the worst. The following Monday Claimant sought medical care at Sandpoint Family Medicine and Urgent Care, where he was first seen by Mark Hernandez, M.D.          3. At this initial visit, Claimant complained of pain in his left elbow, left knee, lower abdomen, hips, low back, and upper back/neck area. Dr. Hernandez ordered x-rays of Claimant's left elbow, left knee, bilateral hips, and lumbar spine. The doctor noted x-ray evidence of a disc protrusion at L5-S1, and bilateral hip osteoarthritis. Dr. Hernandez ordered MRI films due to his concern that Claimant may have fractured his spine at L5. Claimant was given a knee brace, and told to use crutches with no weightbearing on his left leg until instructed differently. Claimant was taken off work.          4. MRIs of Claimant's left knee and lumbar spine were performed on December 18, 2012. Claimant's left knee MRI showed a possible small corner fracture along the anteromedial margin of his medial tibial plateau, and small joint effusion, in addition to osteocartilaginous degenerative changes. Claimant's lumbar spine MRI ruled out fracture, but noted a disc protrusion in the left paracentral region at L4-5. Additionally, the MRI showed widespread degenerative changes throughout Claimant's lumbar spine, with particular note made of spinal stenosis at L1-2, L2-3, and L3-4.          5. On December 20, 2012, Claimant saw Kathy Robertson, FNP, at Sandpoint Family Medicine. She provided a left knee injection for pain. She also referred Claimant to Michael DiBenedetto, M.D., for further knee care, and to J. Sorin Ispirescu, M.D., for continuing lumbar spine treatment.          6. Between January 9, 2013, and March 18, 2013, Dr. Ispirescu treated Claimant's lumbar spine complaints with a series of three spinal epidural steroid injections. The first was an interlaminar injection at L3-4. The next was a transforaminal injection at L2-3. Claimant's last injection with Dr. Ispirescu was at L4-5. Only the final injection had any significant effect, and even then the L4-5 injection provided Claimant with pain relief for only a day or two.          7. Noting Claimant's continuing severe low back pain with radicular symptoms, his significant degenerative changes at multiple levels, and lack of benefit from steroid injections, Dr. Ispirescu, at his final visit with Claimant on April 17, 2013, recommended Claimant consult with Dr. DiBenedetto on the possibility of spine surgery.          8. Claimant first saw Dr. DiBenedetto on January 10, 2013. Dr. DiBenedetto's impression after examination was tibial plateau fracture and left knee sprain, L4-5 HNP (herniated nucleus pulposus) from a "significant fall," and L3-4 and L2-1 degenerative disc disease with Modic changes. CE D, p. 81. Dr. DiBenedetto discussed the fact that Claimant's tibial plateau fracture should recover with range of motion and strengthening exercises. Claimant received a prescription for water therapy, and the doctor encouraged him to increase his weight bearing on his left leg, as the fracture was not of a type that would result in progressive diminution of function if Claimant increased his use of that leg. Dr. DiBenedetto also stressed the importance of continuing back evaluation and treatment, including injection therapy. Claimant was kept off work.          9. Claimant next presented to Dr. DiBenedetto on January 25, 2013. Claimant was using a crutch to assist in ambulation, and complained of pain in his left leg. Claimant also complained of significant pain when he leaned to his left side. He had not been involved in physical therapy, but found that being in a pool helped his symptoms.          10. Dr. DiBenedetto stressed to Claimant the importance of getting into an exercise program on an "aggressive basis." Failure to do so would increase Claimant's chances of continuing physical problems. CE D, p. 84. Dr. DiBenedetto felt that Claimant had suffered an exacerbation of his pre-existing degenerative disc disease in the accident. Claimant was encouraged to discontinue chewing tobacco, as it could impede his recovery.          11. On his next visit with Dr. DiBenedetto, Claimant exhibited "variable" pain symptoms. For example, the doctor noted at times Claimant walked with a limp; at other times he did not. Also, while Claimant demonstrated tenderness on certain range of motion tests, he did not show the same limitations when putting on his socks. Dr. DiBenedetto felt an EMG and nerve conduction study was needed to look for objective evidence of Claimant's variable weakness demonstrated in testing. Claimant was again reminded...