Oakes v. Coeur d'Alene School District #271, 031615 IDWC, IC 2008-025143

• Case Date: March 16, 2015
• Court: Idaho

SUSAN D. OAKES, Claimant, v. COEUR D'ALENE SCHOOL DISTRICT #271, Employer, and IDAHO STATE INSURANCE FUND, Surety, Defendants. No. IC 2008-025143 Idaho Workers Compensation Before the Industrial Commission of the state of Idaho March 16, 2015           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           R.D. Maynard, Chairman           INTRODUCTION          Pursuant to Idaho Code § 72-506, the Industrial Commission assigned the above matter to Referee Douglas A. Donohue who conducted a hearing in Coeur d'Alene on September 23, 2013. Starr Kelso represented Claimant. H. James Magnuson represented Defendants. The parties presented oral and documentary evidence. Post-hearing depositions were taken. Claimant filed a motion to allow posthearing rebuttal testimony. A telephone hearing on the motion was held July 15, 2014. As described below, the Referee denied the motion. The parties submitted briefs. The case came under advisement on November 4, 2014 and is now ready for decision. 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.          ISSUES          According to the Notice of Hearing, the issues are as follows:          1. Whether the condition for which Claimant seeks benefits was caused by the alleged industrial accident;          2. Whether Claimant's condition is due in whole or in part to a subsequent intervening cause;          3. Whether and to what extent Claimant is entitled to benefits for:

a) Temporary disability;

b) Permanent partial impairment;

c) Disability in excess of PPI; and

d) Medical care; and

         4. Whether apportionment of permanent disability for preexisting conditions are appropriate under Idaho Code § 72-406.          CONTENTIONS OF THE PARTIES          The parties agree Claimant, working as a special education paraprofessional, was injured when an autistic student headbutted her (the "2008 headbutt"). The claim was accepted. She received some temporary disability benefits and medical treatment.          Claimant contends she is entitled to additional medical care, specifically treatment for jaw and dental conditions and for treatment and counselling for traumatic brain injury and psychological injuries, arising from the 2008 headbutt. Consideration of PPI and permanent disability is premature, as Claimant has not reached medical stability. If found to be medically stable, Claimant is totally and permanently disabled as a result of her physical and psychological injuries. Claimant's treating physicians and experts are in a better position to diagnose and opine than are Defendants' experts.          Defendants contend they have paid all medical benefits due Claimant. She is medically stable and rates no permanent impairment or disability. Claimant failed to show that any additional treatment is likely related to the 2008 headbutt. She received reasonable medical care, returned to work for Employer, and worked satisfactorily for more than two years before she was terminated for reasons unrelated to the 2008 headbutt.          EVIDENCE CONSIDERED          The record in the instant case included the following:

1. Oral testimony at hearing of Claimant, Lake City High School special education teacher Tim Buzolich, Canfield Middle School special education teacher Virginia Welton, Canfield Middle School intensive behavior intervention therapist Jacqueline Nichole Wilson, and Coeur d'Alene School District history teacher Tracy Turrell;

2. Claimant's exhibits A through N admitted at hearing;

3. Defendants' exhibits 1 through 41 admitted at hearing (see below for a discussion about exhibit 28 which is admitted as a Claimant's exhibit upon foundation provided by posthearing deposition);

4. Depositions of Claimant's brother Russell Wyatt Oakes, vocational expert Dan Brownell, oral surgeon Darlene Chan, D.D.S., and psychologists Edward Deatherage, Ph.D., and Craig Beaver, Ph.D.

         Objections in posthearing depositions are OVERRULED.          After the taking of the posthearing deposition of Darlene Chan, D.D.S., Claimant moved to reopen the record to allow Claimant to offer rebuttal testimony about whether and to what extent Dr. Chan actually examined Claimant. At a telephone conference, upon Claimant's offer of proof that Claimant would deny that Dr. Chan actually examined Claimant, Claimant's motion was denied. Here, finality of the record and timeliness of decision are deemed to outweigh a minor dispute which can be assumed to fall in Claimant's favor without affecting the outcome of this case.          At hearing, Defendants withdrew their proposed exhibit 28, a report by Dr. Deatherage. Claimant objected and requested its inclusion. The Referee held this document pending posthearing deposition testimony by Dr. Deatherage. In their brief, Defendants move to strike testimony of Dr. Deatherage because he is not qualified to offer testimony about psychiatric diagnoses and/or impairment. Defendants' motion to strike is hereby denied; their argument goes to the weight to be assigned to the testimony. The posthearing deposition testimony and exhibit 28 are admitted to the record.          FINDINGS OF FACT          The 2008 Headbutt          1. Claimant worked as a paraprofessional with developmentally disabled children. On July 29, 2008 a boy in middle school headbutted her just under the left eye. She sought immediate medical treatment and was diagnosed with an orbital fracture.          2. Claimant returned to work in September 2008 for a few weeks. She stopped working about mid-October.          3. Claimant again returned to work in January 2009. She continued to work until terminated in May 2011 for reasons unrelated to the 2008 headbutt.          Initial Medical Care: 2008          4. On July 29 Claimant visited Kootenai Medical Center ("KMC") ER. She reported the headbutt and denied she had been knocked unconscious. David Barnes, M.D., found bruising and a small amount of swelling about the left orbit with tenderness in the left maxillary sinus. He noted her eye, nose, teeth, and jaw were normal. X-ray showed a "possible" orbital floor fracture. Dr. Barnes in the ER note diagnosed an orbital fracture, but in the work release sent to Employer he diagnosed an orbital contusion. He allowed a return to "modified" work effective July 31; the only restriction noted was "avoid further trauma/contact." During her three-hour ER stay a nurse's note expressed concern about Claimant's medication requests; particularly, Claimant reported usually taking two Darvocet per dose. The nurse's concern was that such dose represented an overdose of acetaminophen.          5. On the date of the 2008 headbutt Barbara Daugharty, M.D., was and for years had been Claimant's primary physician, along with Dr. Daugharty's nurse practitioner Valerie Kastens. Most medical notes show a copy of the report of each X-ray, CT scan, MRI, etc., was sent contemporaneously to Dr. Daugharty.          6. On July 31 Claimant was examined by Chad McCormick, M.D. Claimant reported left eye pain with questionable diminished vision, left mid-facial numbness, nausea, and left headache. She denied jaw pain "but feels as if her occlusion may be slightly off." Her dentist made bite impressions two weeks ago. Exam showed some bruise and swelling below her left eye. "Marginal malocclusion . . . appears to be her native bite." Diminished sensation of the second division of left cranial nerve V. Dr. McCormick's impression: left facial trauma with probable inferior blowout fracture. He recommended a CT scan.          7. An August 1 a CT scan showed a "subtle fracture" with approximately a 2 mm depression.          8. On August 8 Dr. McCormick noted multiple subjective complaints; Claimant was noncompliant about getting an eye exam despite her continuing vision complaints; she claimed memory loss and blamed her failure to heed reminders to obtain an eye exam on that memory loss. On exam Dr. McCormick noted the bruise and swelling were healing.          9. On August 15 Claimant visited Dr. Daugherty in follow-up. Claimant reported residual nausea, dizziness, and "having trouble connecting mentally." Dr. Daugherty examined her, but noted no objective findings.          10. On August 21 Claimant visited KMC ER for a headache which she reported had persisted since the 2008 headbutt. She also complained of nausea, vomiting, and vision...