Lopez v. 1 & 1 Home Care, Inc., 101119 IDWC, IC 2015-005194

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

GUADALUPE LOPEZ, Claimant, v. 1 & 1 HOME CARE, INC., dba AAA HOME CARE, Employer, and STATE INSURANCE FUND, Surety, And STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendants. No. IC 2015-005194 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho October 11, 2019           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           Thomas P. Baskin, Chairman.          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Alan Taylor, who conducted a hearing in Boise on February 20, 2019. Claimant, Guadalupe Lopez, was present in person and represented by Clinton E. Miner, of Middleton. Defendant Employer, 1&1 Home Care, Inc., dba AAA Home Care (AAA), and Defendant Surety, State Insurance Fund, were represented by Jon M. Bauman, of Boise. Defendant, State of Idaho, Industrial Special Indemnity Fund (ISIF), was represented by Daniel A. Miller, of Boise. The parties presented oral and documentary evidence. Post-hearing depositions were taken and briefs were later submitted. The matter came under advisement on August 14, 2019.          ISSUES          The issues to be decided are:1          1. The extent of Claimant’s permanent impairment attributable to the industrial accident and that attributable to pre-existing injuries or conditions;          2. The extent of Claimant’s permanent disability, including whether Claimant is totally and permanently disabled pursuant to the odd-lot doctrine or otherwise;          3. Whether apportionment for a pre-existing or subsequent condition pursuant to Idaho Code § 72-406 is appropriate;          4. Whether the Industrial Special Indemnity Fund is liable under Idaho Code § 72-332; and          5. Apportionment under the Carey formula.          CONTENTIONS OF THE PARTIES          All parties acknowledge Claimant suffered an industrial accident on February 17, 2015, when she fell and fractured her hip. Claimant asserts she is now totally and permanently disabled. Employer/Surety assert that Claimant has failed to prove she is totally and permanently disabled due to her 2015 industrial injury and also assert that if Claimant is found to be totally and permanently disabled, it is due to the combined effects of her industrial accident and pre-existing permanent impairments for which ISIF bears responsibility. ISIF maintains that Claimant’s pre-existing conditions were not a hindrance or obstacle to her employment and that her industrial accident does not combine with her pre-existing conditions to render her totally and permanently disabled. ISIF notes that prior to her accident Claimant worked without restrictions and was fully able to function.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The Industrial Commission legal file.

2. The parties’ Joint Exhibits 1 through 35, admitted at the hearing.

3. The testimony of Claimant, Jamie Lopez, and Melissa Rodriguez-McDowell, taken at hearing.

4. The post-hearing deposition testimony of Delyn D. Porter, M.A., CRC, taken March 19, 2019, by Defendants, Employer/Surety.

5. The post-hearing deposition testimony of Kenneth E. Newhouse, M.D., taken on April 11, 2019, by Claimant.

6. The post-hearing deposition testimony of Barbara Nelson, M.S., CRC, taken on April 15, 2019, by Defendant, Industrial Special Indemnity Fund.

7. The post-hearing deposition testimony of Beth Rogers, M.D., taken on April 22, 2019, by Defendants, Employer/Surety.

8. The post-hearing deposition testimony of Nancy J. Collins, Ph.D., taken on April 26, 2019, by Claimant.

9. The post-hearing deposition testimony of Nancy Greenwald, M.D., taken on April 30, 2019, by Defendants, Employer/Surety.

         All outstanding objections are overruled and motions to strike are denied.          After having considered the above evidence and the arguments of the parties, the Referee submits the following findings of fact and conclusions of law for review by the Commission.          FINDINGS OF FACT          1. Background. Claimant was born in 1957 in Mexico. She was 61 years old and resided in Nampa at the time of the hearing. She is right-handed, five feet nine inches tall, and weighs approximately 280 pounds. She fluently speaks, reads, and writes Spanish. She speaks and to a lesser extent reads English, but cannot write in English.          2. Claimant attended public school in Sonora, Mexico through the sixth grade. Thereafter, at the age of 12, she began working. She packed water from a well, worked for a nurse, and performed housework including meal preparation and laundry for her aunt and others. From the age of 15 until 21, Claimant worked for another aunt housecleaning and also stocking, ordering, serving customers, and tending a small store.          3. In approximately 1979, at the age of 21, Claimant came to the United States. She worked in the fields in Arizona and then worked cleaning offices in Phoenix. She subsequently met her husband and started a family. She continued house cleaning, babysitting, and also worked fabricating mobile homes for a time. For approximately four years she drove an ice cream truck and sold ice cream until she was robbed at gunpoint while selling ice cream.          4. In approximately 2000, Claimant moved to Idaho and began working at AAA as a home health care aide. AAA sent Claimant to provide cleaning, mopping, laundry, cooking, grocery shopping, and personal care assistance including showering, bathing, and dressing to elderly individuals and disabled youth and adults. Claimant’s job with AAA was physically demanding. She worked five days per week with youth, seven days per week with adults. Her work required standing or walking seven to eight hours per day, bending, kneeling, moving clients, and lifting up to 75 pounds. She had no problems performing her work duties.          5. In April 2005, Claimant was kicked in the knee while assisting a client. She was examined and diagnosed with a knee contusion. Knee x-rays revealed degenerative joint disease. Her knee pain resolved within approximately two weeks and she missed no time from work.          6. In 2006, Claimant’s husband was permanently disabled by a stroke. Claimant cared for him. He became one of the AAA clients for whom she provided care. He weighed approximately 230 pounds and Claimant lifted him on occasion.          7. In February 2009, Claimant injured her right shoulder while caring for a client. Her shoulder pain resolved and she missed no time from work.          8. In February 2014, Claimant was stopped when her vehicle was hit by another car. She developed headaches and back and neck pain. After several months of physical therapy her pain entirely resolved.          9. Prior to 2015, Claimant enjoyed gardening and regularly knelt to tend her garden. She mowed the lawn and was self sufficient in caring for her garden, lawn, and home.          10. In February 2015, Claimant continued to care for her husband as a client of AAA. She also worked for AAA assisting a profoundly disabled 12-year old client weighing approximately 70 pounds. The client lived in a two-story home. Claimant arrived at the client’s home each week day by 5:00 a.m. where she changed, fed, and dressed him for school. She carried the client’s wheelchair and then the client down a flight of stairs and placed him in the wheel chair in preparation for boarding a bus to school. Claimant met the client when he returned from school on the bus. She carried him and then the wheelchair back up the stairs and fed, bathed and dressed him. Due to plumbing issues in the client’s home in February 2015, Claimant had to carry five-gallon buckets of water from the kitchen to a downstairs bathroom to bathe the client daily.          11. Immediately prior to February 17, 2015, Claimant used no prescription medication, was not treating with any physician for any medical issue, and no physician had recommended to her any work or activity restrictions.          12. Industrial accident and treatment. On February 17, 2015, Claimant was carrying the client’s wheelchair down the stairs when she slipped and fell down the stairs, fracturing her right hip. Claimant drove herself home, but upon arriving could hardly get out of her car. She presented to the emergency room and was taken to surgery that same day by Erik Heggland, M.D. Dr. Heggland performed a screw fixation of Claimant’s right...