STEVEN ANDREWS, Claimant,
v.
STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant.
No. IC 2009-007783
Idaho Workers Compensation
Before the Industrial Commission of the state of Idaho
May 10, 2016
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
RECOMMENDATION
Michael E. Powers, Referee
INTRODUCTION
Pursuant
to Idaho Code § 72-506, the Idaho Industrial Commission
assigned the above-entitled matter to Referee Michael E.
Powers who conducted a hearing in Pocatello on June 16, 2015.
Claimant was present and represented by Reed W. Larsen of
Pocatello. Employer/Surety settled with Claimant prior to
hearing. Thomas B. High of Twin Falls represented State of
Idaho, Industrial Special Indemnity Fund (ISIF). Oral and
documentary evidence was presented and the record remained
open for the taking of two post-hearing depositions. The
parties then submitted post-hearing briefs, and this matter
came under advisement on November 10, 2016 and is now ready
for decision.
ISSUES
The
issues to be decided as the result of the hearing are:
1.
Whether Claimant is totally and permanently disabled by way
of the odd-lot doctrine or otherwise;
2. If
so, whether ISIF is liable; and, if so,
3.
Whether the Carey formula applies; and
4.
Whether Idaho Code § 72-406(2) allows for the deduction
of previously paid income benefits paid for the previous
injury to the same body part and, if so, whether the
deduction inures to the benefit of ISIF.
CONTENTIONS
OF THE PARTIES
Claimant
contends that he is totally and permanently disabled by
either the 100% method or by application of the odd-lot
doctrine.
ISIF
contends that Claimant is not totally and permanently
disabled by any method; however, if the Commission so finds,
his total disability is solely the result of his last
industrial accident. While it is true that Claimant has
pre-existing conditions that may have affected his ability to
work, he was able to perform his work without much difficulty
at the time of his last industrial accident and there was no
combination of pre-existing impairments with the impairment
resulting from his last accident that would trigger ISIF
liability.
EVIDENCE
CONSIDERED
The
record in this matter consists of the following:
1. The
testimony of Claimant presented at the hearing.
2.
Claimant's Exhibits A-P admitted at the hearing.
3. ISIF
Exhibits A-B admitted at the hearing.
4. The
post-hearing deposition of Nancy Collins, Ph.D., taken by
Claimant on August 19, 2015.
5. The
post-hearing deposition of Hugh S. Selznick, M.D., taken by
Claimant on September 1, 2005.
After
having considered all the above evidence and the briefs of
the parties, the Referee submits the following findings of
fact and conclusions of law for review by the Commission.
FINDINGS
OF FACT
Claimant's
hearing testimony:
1.
Claimant was 57 years of age at the time of the hearing (he
was 53 at the time of his last industrial accident) and
residing in Pocatello with his wife of 35 years. He stands
5'9" tall and weighs 300 pounds. He has long white
hair,
1 a long, braided white
beard,
2 wears sandals due to foot
problems and walks with a staff or walking stick as using a
cane hurts his back.
2.
Claimant graduated from Marsh Valley High School in 1977.
Other than a defensive driving course required to obtain a
commercial truck driver's license, Claimant has received
no formal education or training since high school. Claimant
worked as a commercial truck driver for a year or so in the
early 1980's but has not had a CDL since 1984.
3.
Claimant testified to the following work history from high
school to 1985: landscaper/sod layer;
3 oil field fracking work; and four years as
a grounds supervisor at State Hospital South where he
supervised a crew and performed maintenance on sprinkler and
irrigation lines, as well as winter maintenance on the
buildings and snow removal.
4. In
1988, Claimant began his employment with the LDS church as a
custodian. After about three months, he was moved up to a
mechanic position. His duties included maintenance of the
HVAC and fixing "…anything that was broke."
HT., p. 19. He was responsible for between 32 and 42
buildings in the Blackfoot/Pocatello area. More specifically,
Claimant "… maintained all the drinking
fountains, all the toilets, all of the door hardware, locks,
programming the locks because they had computerized doors,
HVAC systems, maintenance and repair, lighting, electrical.
Pretty much everything in the building that could go
wrong." HT., p. 20.
5.
Claimant worked for Employer just under 23 years and
"loved" his job.
4Unfortunately, he suffered a number of
work-related injuries mostly involving his back. A major
event occurred in March 2009 (subject accident) when Claimant
fell from a 12-foot upper mezzanine and landed on his
shoulders onto a stage floor. Ultimately, Claimant underwent
surgery (fusion) on his low back. He had prior back surgeries
in the 1990s that limited his ability to bend and twist.
Claimant was unable to return to work after the back surgery
following the subject accident
5 and has not worked since; however, he is
receiving Social Security Disability Insurance benefits of
about $1300.00 a month before deductions.
Prior
physical conditions:
6. (a)
Feet
I don't remember the dates. I think the first foot
surgery I had would be in the late '80s, early '90s.
And it was with my right foot. And it was - - he called it
turf toe, which there is fancy name for it that I can't
remember. But, basically, it's - - you have an
impingement where your big toe meets your foot, you form an
arthritic bump there so that your toe won't bend
backwards like most people's bend. So it just stops your
toe straight. And it hurts. And so they went in there. And
Dr. Mott did that surgery. And he went in and trimmed the top
of the toe off. And I believe he did the one on my left foot
also. I can't remember for sure. I think he did the left
foot also, like a couple of years after the right foot. It
might not have been that long.
And then the right foot got re-aggravated, or it just grew
another one, and so they had to go in and do it again on the
right foot.
And the last time I went and had my foot looked at on the
right foot, they said they were probably either going to have
to take the big toe off or fuse it. And I didn't want to
do either one yet, so I limp around.
I can't put boots on. Like a cowboy boot, there's no
way because I can't bend my toe to get into them.
* * *
I do have a pair of boots that has a tongue that pulls clear
out. But because my feet are so fat, as subtle as I can be
there, I have thick feet, so then I can't find one
that's big enough. I have triple-E boots right now, and
if I wear them for a couple of hours, my feet hurt so bad I
have to take them off. That's why I wear these (sandals),
because I can get in and out of them by myself. Because I
can't touch my toes. And if I have to put on socks, my
wife has to help me put my socks on. And these (sandals), I
don't normally wear socks with. And once I - - I can
slide my foot into them and I can undo them with, you know,
my other foot. But once I get them on, then I have to go to a
chair, or something, and put my foot up on the chair so I can
reach the tab and tighten them.
HT., pp. 33-35.
7. As
of the time of the hearing, Claimant's feet ache all the
time. He can walk on even surfaces, with the help of a
walking stick, for about a quarter of a mile before he has to
stop and rest. He can stand without his walking stick for
about 5 minutes. Claimant testified that he cannot use a cane
because he has to leverage off his lower back which causes
him to twist, which hurts his lower back. His doctor
recommended a staff or walking stick. Claimant also indicated
that he is developing arthritis in both feet.
8. (b)
Knees
Claimant
has had five surgeries on his right knee, including a TKA
performed in 2010, after his last industrial accident. He has
had one operation on his left knee, which, according to his
physician, will also need to be replaced in the future due to
arthritis. Claimant's right knee only partially bends
which prevents him from crawling and ascending/descending
ladders. His has developed arthritis in...
