Austin v. Maverik Country Stores, Inc., 022615 IDWC, IC 2011-006851

• Case Date: February 26, 2015
• Court: Idaho

THOMAS “KEITH” AUSTIN, Claimant, v. MAVERIK COUNTRY STORES, INC., Employer, and ADVANTAGE WORKERS COMPENSATION INSURANCE COMPANY, Surety, and STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendants. No. IC 2011-006851 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho February 26, 2015           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           R. D. Maynard, Chairman          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 Boise on September 10, 2014. Claimant was present as was his attorney, Matthew C. Andrew of Nampa. R. Daniel Bowen of Boise represented Employer and its Surety. Kenneth L. Mallea of Meridian represented the State of Idaho, Industrial Special Indemnity Fund (ISIF). Oral and documentary evidence was presented and the record remained open for the taking of three post-hearing depositions. This matter came under advisement on December 5, 2014.          ISSUES          The issues to be decided as a result of the hearing are:          1. Whether and to what extent Claimant is entitled to the following benefits:

a. Medical;

b. Total temporary disability (TTD); c. Permanent partial impairment (PPI); d. Permanent partial disability (PPD);

e. Total permanent disability (TPD);

         2. Whether apportionment under Idaho Code § 72-406 is appropriate;          3. Whether ISIF is liable; and, if so          4. Apportionment under the Carey formula; and          5. Whether Claimant is entitled to attorney fees for Surety's unreasonable delay or denial in the payment for a Functional Capacity Evaluation (FCE), MRI, and certain prescription drugs.          CONTENTIONS OF THE PARTIES          Claimant contends that he is totally and permanently disabled as the result of a back injury suffered at Employer's C-Store. He has chronic, debilitating pain due to Post-Laminectomy Syndrome that severely limits his ability to concentrate and pay attention. Claimant seeks additional TTD benefits based upon the opinions of his treating pain doctor and his IME physician. Claimant also seeks PPI of 19% based on his IME doctor's opinion. Finally, Claimant requests an award of attorney fees for Surety's unreasonable delay and/or denial of certain medical and prescription benefits.          Surety concedes that Claimant may have incurred some disability above his impairment; however, such disability is nowhere near total. Claimant was only working part-time at the time of his accident and his employment history is comprised mostly of part-time work. He returned to work at Maverik post-surgery until he was terminated for unrelated reasons and was working at the time of the hearing. Surety has paid, or will pay all outstanding medical and pharmacy bills and have not acted unreasonably in handling this claim. Finally, there is no valid reason to increase Claimant's PPI from that given by his treating physician.           ISIF contends that Claimant has failed to prove that he is totally and permanently disabled and, therefore, ISIF cannot be liable. Even if found to be totally and permanently disabled, there is no evidence that such disability arose from any pre-existing physical impairment constituting a hindrance to obtaining or keeping employment.          EVIDENCE CONSIDERED          The evidence in this matter consists of the following:

1. The testimony of Claimant, Claimant's significant other, and senior claims adjuster Carole Carr taken at the hearing.

2. Claimant's Exhibits (CE) 1-53 admitted at the hearing.

3. Joint Exhibits (JE) 1-26 admitted at the hearing.

4. ISIF Exhibits 1-2 admitted at the hearing.

5. Two pre-hearing depositions of Claimant.

6. The post-hearing depositions of: Terry L. Montague taken by Claimant; William C. Jordan taken by ISIF; and Gary M. Cook, M.D., taken by Claimant. All post-hearing depositions were taken on September 18, 2014.

         All objections made during the course of taking the above post-hearing depositions are overruled, with the exception of Defendants' objection at page 60 of Mr. Jordan's deposition, which is sustained.          After having considered all the above evidence and briefs of the parties, the Referee submits the following findings of fact and conclusions of law for review by the Commission.          FINDINGS OF FACT          1. Claimant was 49 years of age and residing in Boise at the time of the hearing. He was raised in Jacksonville, a small town in northeast Alabama and lived there for about 30 years. Claimant's parents owned a furniture store, where he and his siblings "helped out" until he was about 14. Claimant and his family also participated in most sporting events in their community.          2. Claimant received his GED at age 18. He believed such a degree was important and was "embarrassed" that he did not formally finish high school. Claimant attempted college, but could not adhere to such a structured environment.          3. Claimant's work history is broad and varied and will be discussed in more detail when discussing permanent partial/total disability.          4. In 1998, Claimant moved to Boise from Portland looking for a better place to raise his young son. Claimant worked primarily as a lumper for local and long-haul moving companies. After Claimant suffered a back injury,1 he worked as a dispatcher for Cross Town Movers and filled in as a lumper, as needed. Claimant also suffered two separate knee injuries prior to his industrial accident at Employer's. Other than allowing Claimant to "predict the weather," neither injury produced any lasting residual symptoms. Claimant was fired from his job with Cross Town Movers, and returned to Alabama to help his father. He then secured employment in a foundry; however, on the first day at work, Claimant suffered a myocardial infarction resulting in the placement of two stents. Claimant testified that the stents gave him a "burst of energy." HT p. 66.          5. Claimant returned to Idaho, where he eventually obtained employment with Maverik. He was an "adventure guide" whose duties included operating the cash register, cleaning, stocking, and performing other, janitor-type, duties. He was paid $7.75 an hour and worked the graveyard shift.          6. On March 8, 2011, Claimant bent over to lock a beer cooler (the hasp and lock were at the bottom of the cooler door) when he felt a pop in his back causing excruciating pain. Claimant thought he had pulled a muscle and tried to work it out. He completed his shift, informed his supervisor, and then went home. Instead of getting better, his back got worse.          7. Claimant presented to Defendants' preferred medical care provider, Jacob Kammer, M.D., on March 10, 2011 with the chief complaint of low back pain. Dr. Kammer diagnosed mechanical low back pain, prescribed medications and physical therapy, and released Claimant to sedentary work. Claimant returned to Dr. Kammer on March 18 complaining of continued low back pain radiating into his right leg. He informed Dr. Kammer that physical therapy was not helping. Dr. Kammer ordered a lumbar MRI and continued Claimant on sedentary work.          8. Claimant underwent the MRI on March 30, 2011.^[2] The reading radiologist noted: "Spondylotic changes as detailed above. L3-L4 right far lateral disc herniation with mass effect on the right L3 nerve root. L4-5 mild reduction of the spinal canal caliber to the right of midline and left far lateral disc protrusion abutting the exiting left L4 nerve root." DE-10, p. 209.          9. On April 6, 2011, Dr. Kammer reviewed the MRI results with Claimant and referred him to Paul Montalbano, M.D., a neurosurgeon, for further evaluation and treatment.          10. Claimant first saw Dr. Montalbano on April 13, 2011. Based upon his examination and review of prior medical records, as well as the MRI report, Dr. Montalbano recommended surgery for an L3-4 disc herniation. Claimant testified that for various reasons, he lost confidence in Dr. Montalbano and wanted a second opinion. Dr. Montalbano agreed.          11. Claimant first saw R. Tyler Frizzell, M.D., another neurosurgeon, on April 21, 2011. Dr. Frizzell agreed with Dr. Montalbano that Claimant needed surgery. To that end, Dr. Frizzell performed a right L3-L4 microdiscectomy on April 23, 2011. In his first post- surgery follow-up on May 17, Dr...