Anderson v. Gamma Phi Beta Sorority, 060716 IDWC, IC 2014-013005

Case DateJune 07, 2016
CourtIdaho
LYNDA ANDERSON, Claimant,
v.
GAMMA PHI BETA SORORITY, Employer,
and
CONTINENTAL CASUALTY COMPANY, Surety, Defendants.
No. IC 2014-013005
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
June 7, 2016
          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           R.D. Maynard, 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 Lewiston on September 8, 2015. Claimant, Lynda Anderson, was present in person and represented by Michael T. Kessinger, of Lewiston. Defendant Employer, Gamma Phi Beta Sorority (the Sorority), and Defendant Surety, Continental Casualty Company, were represented by Jamie K. Moon, 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 March 22, 2016. 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. Although the Commission agrees with the Referee's proposed outcome, the Commission gives slightly different treatment to the issue of whether Claimant suffered a compensable accident/injury.          ISSUES          The issues to be decided are:
1. Whether Claimant sustained an injury from an accident arising out of and in the course of employment.
2. Whether, and to what extent, Claimant is entitled to medical care.
         All other issues are reserved.          CONTENTIONS OF THE PARTIES          Claimant alleges she suffered an industrial accident causing cervical disc herniations on April 27, 2014, while working for the Sorority making pizzas. She seeks medical benefits including cervical surgery. Defendants admit Claimant needs medical treatment of her cervical spine but assert that Claimant's account of an accident is not credible, that her delayed reporting and differing descriptions to her medical providers after the alleged accident indicates the account is not credible, that her alleged work activities do not constitute an accident and did not cause cervical disc herniations, and that she is entitled to no benefits.          EVIDENCE CONSIDERED          The record in this matter consists of the following:
1. The Industrial Commission legal file;
2. The testimony of Claimant, Amy Westberg, Erin Jessup, and Kyle Hines taken at hearing;
3. Claimant's Exhibits 1-9 admitted at hearing;
4. Defendants' Exhibits 1-3 admitted at hearing;
5. The post-hearing deposition testimony of John McNulty, M.D., taken by Claimant on November 16, 2015; and
6. The post-hearing deposition testimony of Stephen Fuller, M.D., taken by Defendants on December 4, 2015.
         FINDINGS OF FACT          1. Claimant was born in 1961. She was 54 years old and resided in Moscow at the time of hearing.          2. The Sorority is a corporation with a chapter at the University of Idaho that maintains a house in Moscow lodging approximately 75 women. At all relevant times, Erin Jessup was the corporation board president of the Sorority chapter in Moscow.          3. Background. In 2012, the Sorority hired Claimant as its house director to keep the Sorority house secure, ensure proper functioning of the kitchen and timely food preparation for the residents, and arrange for maintenance, routine repairs, and landscaping. Claimant also had the duty to prepare dinner each Sunday at 5:30 for the house residents.          4. Alleged industrial accident and medical treatment. On Sunday, April 27, 2014, Claimant hand-made 60 pizzas. She began preparing the pizzas around noon or 1:00 pm. She noted right shoulder, neck, and upper back pain and by the end of her shift was unable to lift the pans of pizzas in and out of the oven.          5. On Monday morning, April 28, 2014, Claimant presented to Michael Graham, M.D., who diagnosed burning, aching right upper shoulder pain with some radiation into her right arm. He prescribed medications. Claimant was subsequently treated by several physicians and ultimately diagnosed with cervical disc herniations. Surgery was recommended.          6. Claimant reported the April 27, 2014 accident on May 12, 2014, to Sorority board president Erin Jessup. Surety sent Claimant to Stephen Fuller, M.D., for examination and thereafter denied the alleged accident and refused to authorize surgical or other treatment.          7. Condition at the time of hearing. At the time of hearing, Claimant was on prescription medications for ongoing pain and limited to lifting no more than five pounds because of her cervical condition. She continued to desire cervical surgery but was unable to pay for treatment herself. The Sorority accommodated Claimant's restrictions and she continued to work at the Sorority house with assistance preparing Sunday dinners.          DISCUSSION AND FURTHER FINDINGS          8. The provisions of the Idaho Worker's Compensation Law are to be liberally construed in favor of the employee. Haldiman v. American Fine Foods, 117 Idaho 955, 956, 793 P.2d 187, 188 (1990). The humane purposes which it serves leave no room for narrow, technical construction. Ogden v. Thompson, 128 Idaho 87, 88, 910 P.2d 759, 760 (1996). Facts, however, need not be construed liberally in favor of the worker when evidence is conflicting. Aldrich v. Lamb-Weston, Inc., 122 Idaho 361, 363, 834 P.2d 878, 880 (1992).          9. Accident causing injury. The first issue is whether Claimant suffered an accident at work on April 27, 2014. Idaho Code § 72-102(18)(b) defines accident as "an unexpected, undesigned, and unlooked for mishap, or untoward event, connected with the industry in which it occurs, and which can be reasonably located as to time when and place where it occurred, causing an injury." An "injury" is defined as "a personal injury, caused by an accident . . .". See Idaho Code § 72-102(18)(a). Also, "injury" is construed to mean only an injury caused by an accident which results in violence to the physical structure of the body. See Idaho Code § 72-102(18)(c).          10. Occurrence of an accident . . . In the present case, Defendants argue that Claimant's testimony of an accident, or more precisely stated, an untoward event at work, is not credible. The hearing testimony of Claimant, Kyle Hines, Amy Westberg, and Erin Jessup, together with several medical records have addressed the circumstances surrounding Claimant's alleged industrial accident and merit close examination.          11. Claimant. In her pre-hearing deposition Claimant testified that in the afternoon of April 27, 2014, when she started preparing pizzas, she was experiencing no pain in her neck, back, or shoulders. When closely questioned about her onset of pain while working that afternoon she explained:
Q. When did you first notice it?
A. After I started pulling all the cans off the shelves for prepping the pizzas.
Q. What's? Sorry.
A. The cans of—excuse me—the gallon cans of olives and pizza sauce and pineapple.
Q. Okay. And how far up were they?
A. They were on, like, three different shelves. There's overhead, then in the middle, and then towards the floor.
Q. What is the highest one at, approximately?
A. Probably six foot.
Claimant's Deposition, p. 47, ll. 3-14. Claimant described the initial pain as an ache or a burn which became worse as she lifted pans of pizza into the oven and pulled pans out of the oven.          12. Claimant's testimony at hearing was similar:
Q. At what point did you begin experiencing pain that day?
A. When I started pulling the stuff off the shelves in the pantry. But I'm over 50, and I didn't really think anything of it. But as my day progressed, and when I got to the point of cooking the pizzas, it got so I couldn't even lift the pans in and out of the oven anymore by the end
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