Bartlett v. Knife River Corp., 101819 IDWC, IC 2017-026840

• Case Date: October 18, 2019
• Court: Idaho

JUSTIN M. BARTLETT, Claimant, v. KNIFE RIVER CORPORATION, Employer, And LIBERTY INSURANCE CORPORATION, Surety, Nos. IC 2017-026840, IC 2018-021618 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho October 18, 2019           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           Thomas P. Baskin, Chairman.          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee John C. Hummel, who conducted a hearing in Boise on January 15, 2019. Matthew Vook represented Claimant, Justin M. Bartlett (“Claimant”), who was present in person. Judith Atkinson represented Defendants, Knife River Corporation, Employer (“Knife River”), and Liberty Insurance Corporation, Surety (“Liberty”). Scott R. Hall represented Defendants, Titanium Excavation, L.L.C., Employer (“Titanium”), and Idaho State Insurance Fund, Surety (SIF). The parties presented oral and documentary evidence, took post-hearing depositions, and submitted briefs. The matter came under advisement on August 26, 2019. 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.          ISSUES          The issues to be decided by the Commission as the result of the hearing are as follows:          1. Whether and to what extent Claimant is entitled to the following benefits:

a. Medical care; and

b. Temporary partial and/or temporary total disability benefits; and

         2. Whether Claimant is entitled to attorney fees pursuant to Idaho Code § 72-804.          CONTENTIONS OF THE PARTIES          Claimant contends he suffered an industrial accident while working for Knife River on August 3, 2016 when driving a front-end loader; he injured his lumbar spine. He further alleges that he subsequently sustained three additional aggravations of his back injury while in the employment of Knife River through 2017.          Claimant became employed with Titanium in or about March 2018. He alleges that on June 7, 2018 he suffered another industrial accident that aggravated his back condition while working for Titanium.          Claimant acknowledges the existence of pre-existing conditions in his back that contribute to the necessity of lumbar fusion surgery. Nevertheless, he contends that the industrial accidents permanently accelerated or exacerbated these conditions sufficiently to be industrially-related, pursuant to Bowman v. Twin Falls Construction Company, Inc., 99 Idaho 312, 581 P.2d 770 (1978) and Wynn v. J.R. Simplot Company, 105 Idaho 102, 666 P.2d 629 (1983). Thus, Claimant asserts that the injuries in question are compensable and that the proposed surgery at L4,5 should be a covered workers’ compensation benefit.          In addition to coverage of lumbar fusion surgery, Claimant seeks temporary disability benefits since June 7, 2018, when Dr. Montalbano provided work restrictions.          Finally, Claimant alleges that he is entitled to attorney fees for unreasonable denial of benefits by Knife River and Liberty pursuant to Idaho Code § 72-804 because they allegedly did not provide Dr. Hajjar, their IME physician, with all the necessary information to develop a fully-informed opinion. Claimant thus argues that it was unreasonable for Knife River and Liberty to rely upon Dr. Hajjar’s opinion in denying benefits.          Arguing that Claimant’s pre-existing, congenital back condition predisposed him to the need for lumbar surgery, Knife River and Liberty deny that any of the alleged incidents that occurred while Claimant was in Knife River’s employment permanent aggravated or accelerated those conditions. They rely upon the opinion of Dr. Hajjar for their position that Claimant reached MMI when Dr. Frizzell declared him medically stable in an IME, thus they deny liability for medical benefits or temporary disability benefits thereafter. They further allege that they relied reasonably on medical evidence in terminating medical and temporary disability benefits to Claimant, thus they are not liable for attorney fees.          Admitting that Claimant has a documented medical need for lumbar fusion surgery relating to pre-existing conditions, Titanium and SIF deny that the accident of June 6, 2018 had any role in permanently exacerbating or accelerating Claimant’s congenital lumbar spine condition. Titanium and SIF argue that Claimant’s condition is related to Claimant’s first accident with Knife River and his preexisting pars defect. After taking Claimant’s deposition, Titanium and SIF granted Claimant medical coverage and temporary disability benefits. Thus, although they aver that they are not liable for benefits, they reasonably provided them on an interim basis. Finally, Titanium and SIF argue that they are entitled to reimbursement from Knife River and Liberty for the benefits they have paid to Claimant.          EVIDENCE CONSIDERED          The record in this matter consists of the following:          1. Testimony of Claimant admitted at hearing;          2. Testimony of Caleb Gentry admitted at hearing;          3. Joint Exhibits A through CC,1 admitted at the hearing;          4. Affidavit of R. David Bauer, M.D. (stipulated in lieu of deposition); and          5. The post-hearing deposition transcripts of the following medical experts:

a. Paul J. Montalbano, M.D.; and

b. Michael V. Hajjar, M.D.

         EVIDENTIARY RULINGS          All unresolved evidentiary objections from the hearing or post-hearing depositions are overruled, with the exception of the objection that counsel for Knife River and Liberty stated at page 28, lines 8-9, of Dr. Montalbano’s deposition, which is sustained. Dr. Montalbano’s answer at page 28, lines 12-13, is stricken, as the answer is speculative and his opinion stated therein was not previously disclosed prior to the Rule X deadline.          FINDINGS OF FACT          1. Claimant’s Background and Education. Claimant was born on January 24, 1988 and was 30 years old at the time of hearing. Tr., 19:9-14. At the time of hearing, he resided in Emmett, Idaho and had done so for seven years. Id. at 15-19. He was unmarried, having been divorced approximately two years before the hearing. Id. at 20-23. He had two children, and he shared joint custody for them with his former wife. Id. at 20:2-8.          2. Claimant grew up in John Day, Oregon, where he attended Grant Union High School. Tr., 11-21. He graduated from high school in 2006. Id. at 22-25.          3. Claimant did not attend any post-secondary education following high school. Id. at 21:1-3.          4. Prior to any of the alleged industrial injuries occurring, Claimant had a history of being involved in physically strenuous and active pastimes and hobbies, including, but not limited to, working out, weightlifting, hunting, fishing, camping, and hiking. Id. at 88:1-12.          5. Prior Work History. Claimant’s first job after high school was with the Forest Service as a firefighter, a heavy duty job. Id. at 21:11-19. He next went to work for Les Schwab Tire Center in Bend, Oregon, where he worked in the warehouse loading tires and other products for shipment to stores. This position included heavy lifting. Id. at 21:20-22:19. Claimant then worked as a skidder operator for Cherry Valley Logging in the state of Washington near Seattle. This position generally did not involve heavy lifting. Id. at 22:20-23:9. Claimant’s next job was as a pipe layer with Owyhee Construction in Twin Falls, Idaho. This job involved heavy lifting. Id. at 23:10-24:2. Claimant then returned to his hometown of John Day, Oregon, as a utility worker with Canyon City. Id. at 24:5-15.          6. Subject Employment. Thereafter, Claimant worked for Knife River, based in Boise, first as a general laborer/pipe layer and then as an equipment operator. He began work at Knife River in or about 2011 and continued until 2017. He next worked for Titanium, also based in Boise, briefly for a few months in 2018, also as an equipment operator. Id. at 24:16-25:14.          7. Claimant’s position as an equipment operator at Knife River involved operating/driving various kinds of construction equipment, including an excavator, a skidsteer, and a front-end loader. He also had occasion to drive road haul trucks and dump trucks and to operate rollers, depending upon the construction project. His main equipment operation was that...