Arambula v. Kindred Healthcare, Inc., 071516 IDWC, IC 2013-032441

• Case Date: July 15, 2016
• Court: Idaho

ARGELIO ARAMBULA, Claimant, v. KINDRED HEALTHCARE, INC, Employer, and ARCH INSURANCE COMPANY, Surety, Defendants. No. IC 2013-032441 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho July 15, 2016           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Industrial Commission assigned the above-entitled matter to Referee Douglas A. Donohue. He conducted a hearing in Boise on June 5, 2015. The parties presented oral and documentary evidence and later submitted briefs. Clinton Miner represented Claimant. Nathan Gamel represented Defendants Employer and Surety at hearing, and Eric Bailey represented them during post-hearing briefing. The case came under advisement on April 13, 2016. This matter is now ready for decision.          ISSUES          The issues to be decided according to the Notice of Hearing and as agreed to by the parties at hearing are:

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

2. Whether the Claimant suffered an injury caused by an accident arising out of and in the course of employment;

3. Whether the condition for which Claimant seeks benefits was caused by the alleged industrial accident;

4. Whether and to what extent Claimant is entitled to benefits for: a) Temporary disability (TTD/TPD), and b) Medical care.

         All other issues were reserved.          CONTENTIONS OF THE PARTIES          Claimant contends Claimant worked for Employer as a certified nurse's assistant ("CNA") when he suffered a compensable low back injury. Claimant had a preexisting low back condition, but it had been asymptomatic for nine months. Late in a shift on November 29, 2013 he felt back pain when he lifted a resident's leg to reposition a urinal. The pain increased during the remaining hour. He attempted to notify one supervisor promptly. He actually notified another supervisor at the end of his shift when these two supervisors confronted him with a disciplinary "write-up." Claimant believes his initial attempt at notice prompted a spurious disciplinary action. Claimant missed work and sought medical care. When he presented a physician's lifting restrictions to Employer Claimant was fired for insubordination related to the earlier write-up. Eventually, after his claim was denied, Claimant sought medical care from Richard Radnovich, D.O. and others. He has been unable to find work within his lifting restrictions. He is entitled to temporary disability benefits. He needs medical care, possibly surgery.          Defendants contend Claimant's allegation of an unwitnessed accident is not credible. Claimant's report of injury was a spurious response to Employer's allegation of insubordination. He initially refused Employer's insistence that he file an accident report. Claimant has testified to disprovable falsehoods. Claimant has been untruthful with his physicians about drug use. Repeated drug tests showed positive for marijuana and methamphetamine. Claimant's description of his injury has been inconsistent. He initially described symptoms consistent with a cervicothoracic injury. At hearing he claimed a L5-S1 disk injury to his low back. Claimant did not suffer a compensable accident. If he did, it was limited to a shoulder, upper back, and/or neck injury which resolved within six weeks. Claimant's low back condition was not caused by a compensable accident, if any occurred. Claimant's low back condition is entirely related to a nonindustrial degenerative condition.          EVIDENCE CONSIDERED          The record in the instant case included the following:

1. Oral testimony at hearing of Claimant and Employer's nurses Anita Sims and Cynthia Payton;

2. Claimant's Exhibits 1 through 12;

3. Defendants' Exhibits 1 through 16, except for portions of Exhibit 12. Excluded portions consisted of written statements which were without foundation because the authors did not testify at hearing. Claimant did not object to redacted versions of these statements as part of Exhibit 14;

4. Post-hearing depositions of pain management specialist Daniel Marsh, M.D., and spine surgeon Timothy Doerr, M.D.

         Having analyzed all evidence of record, the Referee submits the following findings of fact and conclusions of law for the approval of the Commission and recommends it approve and adopt the same.          FINDINGS OF FACT          1. Claimant received several warnings and written reprimands for failing to care for residents—usually which involved leaving them to lie in their own urine—and for his refusal to take his lunch during the assigned lunch window of time. He received a "final written warning" on November 14, 2013. Documents originally submitted to the Department of Labor for purposes of Claimant's unemployment benefits claim show the November 14 written reprimand was the sixth Claimant had received in less than one year.           November 29, 2013          2. Claimant worked for Employer at its skilled nursing facility on November 29, 2013. His shift was from approximately 2:00 to 10:00 p.m. with about 45 minutes for lunch. Lunch was to be taken between 3:00 and 5:00 p.m. as work allowed. ...