Watts v. Schwan’s Food Service, Inc., 071119 IDWC, IC 2016-005024

• Case Date: July 11, 2019
• Court: Idaho

WILLIAM WATTS, Claimant, v. SCHWAN’S FOOD SERVICE, INC., Employer, and HARTFORD INSURANCE CO. OF THE MIDWEST, Surety, Defendants. No. IC 2016-005024 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho July 11, 2019           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           Thomas P. Baskin, Chairman          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Michael Powers, who conducted a hearing in Idaho Falls, Idaho, on May 25, 2018. Michael McBride of Idaho Falls represented Claimant. Susan Veltman of Boise represented Defendants. The parties produced oral and documentary evidence at the hearing and submitted post-hearing briefs. The matter came under advisement on February 8, 2019. After the matter came under advisement, but before Findings of Fact were prepared Referee Powers retired. The case was reassigned to Referee Brian Harper, who reviewed the record and prepared the following Findings of Fact and Recommendation. The undersigned Commissioners disagree with the treatment given to the cause of Claimant’s pressure ulcer and issue these Findings of Fact, Conclusions of Law, and Order.          ISSUES          The issues for adjudication decided upon at hearing are:

1. Whether Claimant has complied with the notice limitations set forth in Idaho Code § 72-701 through 706, and whether these limitations are tolled pursuant to Idaho Code § 72-604;

2. Whether Claimant’s injury or condition for which he seeks benefits was caused by an industrial accident arising out of and in the course of his employment.

         At hearing, there was much discussion on the issues to be decided, and those to be reserved. Reserved issues include the extent of medical benefits for which Claimant will be entitled to if causation is established, the extent of Claimant’s permanent partial impairment, and his disability in excess of impairment, if any. Claimant has no past temporary disability benefit claim, as he missed no work after the accident in question. Future TTD is not ripe for adjudication at this time. Attorney fees were also reserved for future hearing.          In briefing Defendants conceded Claimant timely reported his accident. As such, the sole remaining issue for determination at this time is causation.          CONTENTIONS OF THE PARTIES          Claimant sprained his right foot on or about November 20, 2015 while performing his regular duties for Employer. The accident caused a tear in Claimant’s peroneal brevis tendon, leading to ankle laxity, which in turn forced Claimant’s right foot to progressively turn inward, loading more of his weight to the outside of his foot. Because of Claimant’s diabetes, this increasing pressure on the lateral aspect of Claimant’s foot led to a pressure ulcer. Claimant has proven his peroneal tear and medical developments stemming therefrom, including his pressure ulcer, are causally related to his undisputed work accident.          Defendants argue that Claimant has not proven his peroneal tear and the development of a diabetic ulcer on the lateral side of his right foot were caused or aggravated by his industrial accident. Rather, Claimant’s longstanding diabetes and congenital foot deformities are to blame for those conditions. His minor sprain resolved within six weeks with no impairment or permanent restrictions.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The testimony of Claimant, Herb Padigimus, and Linda Watts, taken at hearing;

2. Claimant’s exhibits (CE) A through Z, and Z(a), through Z(c)1, admitted at hearing;

3. Defendants’ exhibits (DE) 1 through 7, admitted at hearing;

4. The post-hearing deposition transcripts of Tony Quinton, DPD, and Kylin Kovac, DPD, taken on July 16, 2018; and

5. The post-hearing deposition transcript of Brian Tallerico, DO, taken on August 30, 2018.

         All objections preserved through the depositions are overruled.          FINDINGS OF FACT          1. At the time of his accident on Friday, November 20, 2015, Claimant was employed by Employer as a route home delivery driver. On that date, as he returned to Employer’s parking area, he stepped onto a graveled slope and twisted his right ankle and/or foot. He immediately felt popping and intense pain in the lateral, or outside, of his right foot up to his right knee. He e-mailed his supervisor that night to inform him of the incident.          2. Although Claimant testified his right foot had stiffened up and was painful, he was able to work delivering product on his route the following day. At one stop, Claimant stepped on what felt like to him “a rock in the arch of my [right] foot.” Tr., p. 56. This incident further exacerbated Claimant’s right foot pain.          3. Claimant called his manager and stated he could not continue the route. Claimant was advised to return to the lot. However, it was the Saturday before Thanksgiving and Claimant elected to finish delivering to his customers, albeit with difficulty.          4. At the time of these accidents, Claimant was wearing an “Unna” boot under his work boots to treat a sore above his right ankle. An Unna boot is a medicated wrapping (like an ACE bandage) which hardens once applied. Claimant had the wrapping from his toes up to his calf, and included his right ankle. Claimant testified the Unna boot provided added support for his ankle.          5. On Sunday, November 22, 2015, Claimant went to Eastern Idaho Regional Medical Center. X-rays of Claimant’s right foot showed no fracture or dislocation or any acute findings. Claimant was diagnosed with a right foot sprain, or injury to the ligaments of his right foot. Claimant was given an ACE bandage to wear. He was advised to follow up with Robert Lee, M.D., an orthopedic surgeon.          6. Claimant did not see Dr. Lee. Instead, over the next few months, Claimant treated a few times with naturopath Gary Orchard, N.D., with whom Claimant had an ongoing “as-needed” patient relationship for a number of issues, including his right foot. Claimant continued to work for Employer until his termination for reasons not associated with this accident, missing no days due to the accident in question.          7. On April 8, 2016, just prior to seeing Dr. Kovac, Claimant was examined in a single visit by Brigham Redd, M.D., an orthopedic surgeon in Idaho Falls. Dr. Redd’s notes discuss Claimant’s swollen, purple legs from his knees down, as the result of longstanding venous insufficiency problems, which led to ulcers on Claimant’s right lateral heel and medial mid leg. Dr. Redd also noted a very prominent callus over the lateral border of the fifth metatarsal head, which corresponded to the point where Claimant noted the most pain. Claimant’s right foot was slightly inverted, and his ankle was stiff. Dr. Redd did not understand why Claimant walked on the outside of his right foot when that was the area which was most painful. Claimant indicated he was unable to walk on the flat underside of his foot. Dr. Redd did not treat Claimant, but instead made an immediate referral to Dr. Kovac.          8. Dr. Kovac described his practice as one that treats “all conditions as it relates to the foot and ankle, whether it’s, you know, structurally with the bones and joints or tendons and muscles, skin, wounds, soft tissues. Anything basically, yeah, as it relates to the foot and ankle.” Kovac Depo., p. 4. Claimant first saw Dr. Kovac in April 2016. At his initial visit, Claimant described ongoing lateral right foot pain since his industrial accident, made worse by walking and at the end of the day. Prior treatment modalities had not helped his condition.          9. Examination and x-rays taken that day demonstrated Claimant’s “significant” cavus deformity (abnormally high arch), swelling, and osteoarthritis throughout Claimant’s right ankle and foot. Dr. Kovac assessed chronic venous hypertension with ulcer and inflammation on Claimant’s right lower extremity. (Claimant had a venous stasis wound on his right ankle, which pre-existed his industrial accident, and was related to his diabetes, or as Claimant insisted “insulin resistance.”) Dr. Kovac also diagnosed peroneal tendinitis based on Claimant’s “significant pain” along the course of his peroneal tendons “both in the retromalleolar region and at its insertion into the base of the fifth metatarsal.” CE J, p. 91.          10. Dr. Kovac felt Claimant’s peroneal tendons may have been damaged in the...