Hudson v. Coeur d'Alene Mines Corp., 052306 IDWC, IC 01-006381

• Case Date: May 23, 2006
• Court: Idaho

CHRISTOPHER HUDSON, Claimant, v. COEUR d' ALENE MINES CORPORATION, Employer, and IDAHO STATE INSURANCE FUND, Surety, Defendants. Nos. IC 01-006381, IC 01-514421 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho May 23, 2006           FINDINGS OF FACT, CONCLUSIONS AND ORDER           Thomas E. Limbaugh, Chairman          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Douglas A. Donohue. The case was re-assigned to the Commissioners on July 21, 2005. Commissioners James F. Kile and R.D. Maynard conducted a hearing in Coeur d'Alene, Idaho, on July 28, 2005. Claimant was present and represented by Louis Garbrecht. Paul J. Augustine represented Defendants Employer and Surety. The parties submitted oral and documentary evidence. Three post-hearing depositions were taken and the parties submitted post-hearing briefs. The matter is now ready for decision.          ISSUES          After due notice to the parties, the issues were identified as:

1. Determination of Claimant's average weekly wage;

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

a. Temporary partial and/or temporary total disability benefits (TPD/TTD);

b. Permanent partial impairment (PPI);

c. Disability in excess of impairment, up to and including 100% total permanent disability; and

d. Medical care.

         The parties stipulated at hearing that Claimant's average weekly wage amounted to $659.23. That issue is, therefore, no longer a subject of this litigation. Also, Claimant presented no argument concerning his claim for 100% total permanent disability. As a result, the Commission will consider that issue waived by Claimant.          CONTENTIONS OF THE PARTIES          Claimant contends that he suffers from neck and right arm pain, right hand problems, memory and concentration difficulties, and depression as the result of his February and September 2001 industrial accidents. Claimant asserts he is in need of further medical care to address his depression. He alleges entitlement to TTD benefits until he reaches medical stability. Claimant also argues that he is entitled to additional PPI based on the opinion of Robert B. Burr, Ph.D. Finally, Claimant maintains that he is entitled to a substantial award of permanent partial disability.          Defendants argue Claimant has offered no substantial or competent evidence that he suffers any disability in excess of impairment. Defendants claim that medical and vocational evidence supports Claimant's return to medium duty work and jobs which are available within Claimant's labor market. Claimant is simply unmotivated to return to meaningful employment. Defendants assert Claimant is not entitled to additional medical care, including psychological treatment and/or impairment. They argue in the alternative that any cognitive impairment Claimant has suffered is mild, not moderate as Claimant contends.          Claimant did not file a reply brief.          EVIDENCE CONSIDERED          The record in the instant case consists of the following:

1. Oral testimony by Claimant, Kathy Hudson (Claimant's spouse), Richard L. Hudson (Claimant's father), Larry Nelson (Employer's Human Resource Director), and Terry Parsons (former Industrial Commission vocational rehabilitation consultant);

2. Claimant's Exhibits 1 through 24 admitted at hearing;

3. Defendants' Exhibits A through S admitted at hearing;

4. The pre-hearing deposition of Claimant taken by Defendants on July 30, 2003; and

5. The post-hearing depositions of Robert B. Burr, Ph.D., with Exhibits 1 and 2, taken by Claimant on September 27, 2005, Craig W. Beaver, Ph.D., with Exhibit 1, taken by Defendants on October 20, 2005, and Michael Weiss, M.D., with Exhibit 1, also taken by Defendants on October 20, 2005.

         All objections made during the course of the above-referenced depositions are overruled. After having fully considered the above evidence and arguments of the parties, the Commission hereby issues its decision in this matter.          FINDINGS OF FACT          1. Claimant began working for Employer as a mine laborer, first class, on May 24, 2000. On February 20, 2001, Claimant sustained a laceration that extended from his mid-forehead to the right side of his nose when a rock fell from the ceiling of the mine (first accident). Claimant was treated by Antoine Sarkis, M.D., and received multiple stitches. He returned to work the following day with a light duty release. Claimant was returned to full duty work with no restrictions on March 8, 2001.           2. After continuing to complain of neck pain and some right extremity numbness, Claimant was referred to Jeffrey McDonald, M.D., Ph.D., for consultation. Dr. McDonald noted Claimant's February industrial accident. He interpreted an April 2001 MRI to reveal mild cervical spinal stenosis at C4-5 and C5-6, without true compression of the cord or neural elements. See: Claimant's Exhibit 5. Dr. McDonald ordered an EMG to rule out C7 radiculopathy and released Claimant to light duty pending the results. The EMG indicated C7 root irritation that the doctor believed was likely the cause of Claimant's continued tingling and numbness. Claimant reported feeling better and wanted to return to full duty work. Dr. McDonald opined, "I believe it is safe for Chris to try to return to mining. Short of another serious accident, such as the one which produced these current radicular symptoms, I think he will do just fine on the job site." See: Defendants' Exhibit B.          3. Claimant sustained another industrial accident on September 11, 2001. After checking debris in front of a "mucker," a rock or "slab" fell from the ceiling of the mine, landing on Claimant's hardhat (second accident). Claimant was knocked unconscious and does not remember the incident. There were no other witnesses. Co-workers found him and revived him. Frederick Haller, M.D., documented the incident as follows:

He was sitting in a mucker and, apparently a slab fell out of the ceiling and landed on his [sic], he was bent over and hit the back of his head and upper shoulders. The slab became lodged on the fender of the mucker itself. He was knocked to the ground. He does not remember anything after getting out of the mucker. The slab was pulled off of him and he seemed to be fine, only had some mild discomfort between his shoulder blades. There was 2 hour [sic] left of the shift so he just sat around and said he was feeling fairly well by the time the shift ended.

See: Claimant's Exhibit 1. After reviewing x-rays, Dr. Haller noted his impression as a cervical strain with a possible compression fracture. He prescribed Lortab for pain, took Claimant off work, and started him on a Medrol dosepak. Additional x-rays taken at Shoshone Medical Center showed no evidence of acute traumatic injury to Claimant's cervical spine. See: Defendants' Exhibit A.          4. Claimant reported back to Dr. McDonald on September 14, 2001, after the second accident. Dr. McDonald noted clear signs of a musculoskeletal strain injury to the neck. He believed Claimant displayed symptoms of post-concussive syndrome along with a cervical strain injury with a radicular component. See: Defendants' Exhibit B. An MRI showed cervical spinal stenosis at C4-5 and C5-6, which Dr. McDonald characterized as congenital with an additional degenerative component. Flexion and extension x-rays revealed no instability or fracture. Dr. McDonald prescribed physical therapy.          5. At a follow-up appointment on September 28, 2001, Dr. McDonald noted that although Claimant's neck and arm symptoms were somewhat better, he was still experiencing neurocognitive deficits. "He and his family have noted short-term memory problems, persistent spells of dizziness, and almost a sense of 'blackout' spells with headaches." See: Claimant's Exhibit 5. Based on Claimant's symptoms of post-concussive syndrome Dr. McDonald recommended a...