Berisha v. The Grove Hotel, 032515 IDWC, IC 2002-003038

Case DateMarch 25, 2015
CourtIdaho
SANIJE BERISHA, Claimant,
v.
THE GROVE HOTEL, Employer,
and
INSURANCE COMPANY OF THE WEST, Surety, Defendants.
No. IC 2002-003038
Idaho Workers Compensation
Before the Industrial Commission of the state of Idaho
March 25, 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 LaDawn Marsters, who conducted a hearing in Boise, Idaho, on December 12, 2014.1 Claimant represented herself, pro se, at the hearing. Neil D. McFeeley represented Defendants. Kujtin I. Sopoti, an English-Albanian interpreter, facilitated the proceedings. Testimony was taken and documentary evidence was entered into the record. No post-hearing depositions were taken. Defendants filed a post-hearing brief, but Claimant did not. She did, however, file a reply to Defendants' brief. The matter came under advisement on February 27, 2015.          PROCEDURAL BACKGROUND AND PREVIOUS FINDINGS          Four previous hearings were held in this case, on October 17, 2003, December 17, 2009, January 10, 2011, and April 11, 2012.          Robert D. Barclay was the presiding Referee at the 2003 hearing and Claimant was represented by attorney Vernon K. Smith with whom she is no longer affiliated. A decision was issued on April 5, 2004 in which the Commission ordered that:
1. Claimant incurred CRPS I ("CRPS") as a consequence of her February 2002 industrial accident.
2. Claimant is not eligible for any further medical care without further documentation.
3. Claimant is not entitled to any additional temporary partial and/or temporary total disability (TPD/TTD) benefits.
4. Claimant is entitled to a permanent partial impairment (PPI) rating of 5% of the whole person. Surety is entitled to credit for any amount previously paid.
5. Claimant is entitled to a permanent partial disability (PPD) rating of 5% of the whole person inclusive of her PPI.
6. Apportionment under Idaho Code § 72-406 for a pre-existing condition is not warranted.
7. The issue of retraining under Idaho Code § 72-450 has been waived.
8. Claimant is not entitled to attorney's fees as provided for by Idaho Code § 72-804.
9. Pursuant to Idaho Code § 72-718, this decision is final and conclusive as to the matters adjudicated.
         On April 6, 2009, Claimant filed a new Complaint seeking additional medical care. Claimant was represented by Andrew C. Marsh with Seiniger Law Offices from May 21, 2009, until October 13, 2009. She appeared pro se at the second hearing, at which Susan Veltman was the presiding Referee. A decision was issued on January 21, 2010. The Commission ordered that Claimant had not met her burden of proof to establish entitlement to additional medical benefits.          On August 21, 2010, Claimant, still acting pro se, filed a third complaint seeking additional medical care. Discovery entanglements ensued, leading to an Order Finding Claimant in Contempt, Denying Claimant's Request to Schedule Hearing and Requiring Discovery and Offer of Proof From Claimant, entered November 22, 2010, and a Motion to Dismiss filed by Defendants on December 9, 2010, alleging that Claimant's November 29, 2010 response to the Order was insufficient. That motion prompted the third hearing, on January 10, 2011. At that hearing, Claimant again generally attributed all of her physical and mental difficulties, including itching and scratching leading to skin lesions and a fungal rash, headaches, loss of vision in the right eye and various psychological symptoms to her 2002 right upper extremity ("RUE") crush injury. However, the Commission found insufficient evidence in the record to establish that any of her claims were related to her 2002 industrial injury; therefore, it dismissed Claimant's Complaint without prejudice with respect to her RUE CRPS claims, and with prejudice as to her claims related to all other alleged conditions because they are barred by res judicata.          On April 11, 2012, Claimant again represented herself at a hearing seeking additional medical care. As a result of that hearing, the Commission entered an order determining that Claimant had raised no new issues for adjudication, and dismissed her Complaint while affirming her continued eligibility for reasonable and necessary medical treatment related to her RUE CRPS.          These previous decisions were not appealed and have become final.          ISSUE          Pursuant to the Notice of Hearing issued July 21, 2014, the sole issue to be decided is whether and to what extent Claimant is entitled to additional medical care.          CONTENTIONS OF THE PARTIES          Claimant seeks an order from the Commission authorizing additional medical treatment related to the right arm industrial injury she sustained in 2002 when her arm got caught between rollers on a laundry machine. According to her Complaint, Claimant seeks treatment for "chronick [sic] severe disabling pain in the right upper extremity." Claimant offered no documentary evidence at the hearing; however, her husband confirmed during his testimony, after reviewing Defendants' exhibits, that he was aware of no relevant documents not included therein. The testimony of Claimant and her husband confirm that she continues to seek benefits related to her industrial injury and that she is frustrated that benefits have not yet been authorized.          Defendants contend that Claimant has not met her burden of proof to establish entitlement to additional medical benefits and request that consideration be given to the previous findings on this issue. They seek dismissal, with prejudice, of her Complaint on the grounds that Claimant has alleged, but failed to prove, her need for additional medical care multiple times since her industrial injury.          EVIDENCE CONSIDERED          The record in this matter consists of the following:
1. Defendants' Exhibits 1-6;
2. Testimony taken at the hearing from Claimant and her husband, Xhevat Berisha; and
3. The Industrial Commission's legal file.
         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          1. Claimant was 49 years of age at the time of her fifth hearing. She wore opaque wraparound glasses and received assistance walking to the litigants' table from her husband. She wore a brace on her right wrist that extended to her mid-forearm. Her demeanor was subdued in comparison to her prior hearing appearances.          2. Claimant's testimony was brief. She asked for help because she...

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