Clevenger v. Lowe’s Companies, Inc., 091506 IDWC, IC 03-010545

• Case Date: September 15, 2006
• Court: Idaho

JANETTE L. CLEVENGER, Claimant, v. LOWE’S COMPANIES, INC., Employer, and AMERICAN HOME ASSURANCE COMPANY, Surety, Defendants. No. IC 03-010545 Idaho Workers Compensation Before The Industrial Commission of The State of Idaho September 15, 2006           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           Thomas E. Limbaugh, Chairman          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Industrial Commission assigned the above-entitled matter to the Commissioners for hearing. On February 23, 2006, Commissioners James F. Kile and R.D. Maynard conducted a hearing in Coeurd' Alene, Idaho. Claimant was present and represented by Richard Whitehead of Coeurd' Alene. Thomas V. Munson of Boise appeared on behalf of Defendants. A pre-hearing deposition of Claimant was taken in August of 2005. Post-hearing depositions of Jeffrey John Larson, M.D., and J. Craig Stevens, M.D., were taken. Following submission of post-hearing briefs by the parties, the case came under advisement and is now ready for decision.          ISSUES          By agreement of the parties, the issues to be decided as a result of the hearing are:

1. Whether Claimant suffered an injury arising out of the course and scope of employment;

2. Whether Claimant is entitled to medical care following February 10, 2004; and

3. Whether Claimant is entitled to temporary total disability (TTD) or temporary partial disability (TPD) benefits following February 10, 2004.

         The following four issues are reserved, as they are not ripe at this time:

4. Whether, and to what extent, Claimant is entitled to permanent partial impairment (PPI);

5. Whether, and to what extent, Claimant is entitled to any disability above and beyond impairment;

6. Apportionment for a pre-existing condition; and

7. Whether Claimant is entitled to attorney fees pursuant to Idaho Code § 72-804.

         CONTENTIONS OF THE PARTIES          Claimant contends she injured her back while working for Employer on August 23, 2003. Claimant was lifting a heavy box at the check stand when she had to stop lifting due to pain in her back. Claimant states that all the medical professionals involved, save Dr. Stevens, have concluded she suffered a workplace injury. Defendants paid benefits until Claimant visited Dr. Stevens on February 10, 2004. Claimant argues she is entitled to medical care related to her back injury following the exam of February 10, 2004, including a November 2005 lumbar fusion. Furthermore, Claimant is entitled to temporary income benefits from February 10, 2004 through the present time, as she has not reached maximum medical improvement (MMI).          Defendants contend a minor accident occurred at Lowe's, but that Claimant did not suffer a serious workplace injury, as supported by the medical evidence. Defendants point to Claimant's history of back problems and argue Claimant had pre-existing, symptomatic changes in her back prior to her industrial accident. Defendants state that Claimant's need for the November 2005 fusion was not related to her industrial accident. Following the exam of February 10, 2004, Claimant is not entitled to any further medical care nor is she entitled to any further temporary income benefits.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The testimony of Claimant, Pat Clevenger, Shannon Roush, Sandra Dickerson, Gene Smith, and John Lord;

2. Claimant's Exhibits, A1 through A9 and B through G;

3. Defendants' Exhibits A through DD; and

4. The post-hearing depositions of J. Craig Stevens, M.D., and Jeffrey John Larson, M.D.

         All objections made during the depositions are overruled. After having considered all the above evidence and the briefs of the parties, the Commission issues the following findings of fact, conclusions of law, and order.          FINDINGS OF FACT          1. At the time of the hearing, Claimant was fifty-three (53) years of age and living in Post Falls, Idaho.          2. Claimant and her husband had lived in Lewiston, Idaho for a number of years when they decided to move to the Post Falls area for work reasons in late 2002. Claimant began working for Employer in July of 2003. On August 23, 2003, Claimant suffered an injury to her back while working for Employer. Claimant attempted to lift a box filled with four gallons of paint so she could locate the barcode to scan the item for a customer. In so doing, Claimant testified that she experienced an immediate onset of "red hot pain" in her lower back forcing her to stop what she was doing. At hearing, Claimant described the pain as "piercing, stabbing, just white hot pain, just right into my back, just immediate, that burning hot pain." Claimant further described the onset of pain like "a poker" shooting through her back and bilaterally down her legs. She described the pain in her back as so "prominent" that "i t was difficult to breathe" and she had to undo her belt. Claimant also testified that she had never felt pain like that before this incident. See: Hearing Transcript...