Beascoechea v. Entral Paving Co., Inc., 111716 IDWC, IC 2013-021349

• Case Date: November 17, 2016
• Court: Idaho

SABINO BEASCOECHEA, Claimant, v. ENTRAL PAVING COMPANY, INC., Employer, and LIBERTY NORTHWEST INSURANCE CORPORATION, Surety, Defendants. No. IC 2013-021349 Idaho Workers Compensation Before the Industrial Commission of the state of Idaho November 17, 2016           ORDER           R. D. Maynard, Chairman.          Pursuant to Idaho Code § 72-717, Referee Douglas A. Donohue submitted the record in the above-entitled matter, together with his recommended findings of fact and conclusions of law to the members of the Idaho Industrial Commission for their review. Each of the undersigned Commissioners has reviewed the record and the recommendations of the Referee. The Commission concurs with these recommendations. Therefore, the Commission approves, confirms, and adopts the Referee's proposed findings of fact and conclusions of law as its own.          Based upon the foregoing reasons, IT IS HEREBY ORDERED that:          1. Claimant is entitled to PPI rated at 6% of the whole person; 2. Claimant is entitled to permanent disability rated at 45% of the whole person, inclusive of PPI;          3. Claimant is entitled to an additional $103.95 as a compensable medical benefit;          4. Claimant failed to show it likely he is entitled to future medical benefits;          5. Claimant failed to show it likely he is totally and permanently disabled, either 100% or as an odd-lot worker.          6. Pursuant to Idaho Code § 72-718, this decision is final and conclusive as to all matters adjudicated.          INDUSTRIAL COMMISSION           Thomas E. Limbaugh, Commissioner, Thomas P. Baskin, Commissioner          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 who conducted a hearing in Boise on April 15, 2016. Taylor Mossman-Fletcher represented Claimant. Matthew Vook represented Defendants Employer and Surety. The parties presented oral and documentary evidence and later submitted briefs. The case came under advisement on July 18, 2016. This matter is now ready for decision.          ISSUES          The issues to be decided according to the Notice of Hearing are:          1. Whether and to what extent Claimant is entitled to benefits for:

a) Temporary disability,

b) Permanent partial impairment (PPI),

c) Permanent disability in excess of PPI, including total and permanent disability, and

d) medical care; and

         2. Whether Claimant is permanently and totally disabled under the odd-lot doctrine.          At hearing Claimant withdrew the issue of attorney fees.          CONTENTIONS OF THE PARTIES          Claimant contends he is totally and permanently disabled—100% or as an odd-lot worker. He suffered an undisputed 6% PPI from the accident, but should receive more because rating physicians failed to include a consideration for subjective pain. Claimant's labor market and nonmedical factors at the time of hearing support an odd-lot determination. Claimant's decision to retire came only after MMI when he assessed his inability to return to the job which he would have continued but for the accident. He needs future medical care in the form of medications and therapy.          Employer and Surety contend Claimant is not in the labor market because, at age 68, he has retired. His permanent disability is much less than total by every reasonable analysis. He does not meet the criteria for an odd-lot worker. Claimant's vocational expert rated his disability at 60%. Claimant failed to show a benefit for future medical care should be awarded.          EVIDENCE CONSIDERED          The record in the instant case included the following:

1. Oral testimony at hearing of Claimant, Employer's vice-president Patrick McEntee, and Claimant's step-son Robert Nagel;

2. Claimant's exhibits 1 through 21; and

3. Defendants' exhibits A through S.

         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 was born in the Basque country in Spain. His native language is Basque. He understands some Spanish and limited English but speaks less of either. Although intelligent, he is marginally literate in these languages. A Basque interpreter, Ms. Izaskun Kortazar, was required at hearing. A Spanish interpreter assisted at Claimant's prehearing deposition.          2. Claimant has worked at manual labor for essentially all of his life. For Employer he operated heavy equipment, primarily a roller used to pave asphalt roadways.          3. On August 12, 2013 Claimant was injured in a compensable accident at work. Despite surgery he still has right shoulder issues and he feels he cannot return to roller operation.          Post-Accident Medical Care: 2013          4. On August 12 Claimant sought emergency care immediately after the industrial accident. His right shoulder was dislocated. The dislocation was reduced and a sling was provided. X-rays showed the acute condition, its reduction, and chronic degeneration. They showed no fracture. Claimant was told not to return to work for two days, and not to use his right arm or hand significantly for seven days.          5. On August 23 an MRI showed two full-thickness tears in the rotator cuff.          6. Follow-up visits and therapy provided little help in the following weeks.          7. On September 12 Darby Webb, M.D., recommended surgery.          8. On October 1 shoulder surgery, both arthroscopic and open, was stopped because of excessive bleeding.          9. On October 29 arthroscopic surgery was completed including debridement, biceps tenotomy, subacromial decompression, and rotator cuff repair.          10. On October 30 Claimant reported intolerable pain.          11. In mid-November Claimant began what would become 25 weeks of significant physical therapy. He was...