Andrews v. State, Industrial Special Indemnity Fund, 051016 IDWC, IC 2009-007783

Docket Nº:IC 2009-007783
Case Date:May 10, 2016
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 accident5 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...

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