Bluemer v. Corder, LLC, 010915 IDWC, IC 2007-038506

Case DateJanuary 09, 2015
CourtIdaho
RAY BLUEMER, Claimant,
v.
CORDER, LLC, Employer,
and
IDAHO STATE INSURANCE FUND, Surety, Defendants.
No. IC 2007-038506
Idaho Workers Compensation
Before the Industrial Commission of the state of Idaho
January 9, 2015
          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           R.D. Maynard, Chairman.          INTRODUCTION          Pursuant to Idaho Code § 72-506, at the time of hearing the Idaho Industrial Commission assigned the above-entitled matter to Referee Brian Harper, who conducted a hearing in Boise, Idaho, on June 13, 2014. Clinton E. Miner, of Boise, represented Claimant. Neil D. McFeeley, of Boise, represented Employer and Surety. Oral and documentary evidence was admitted. Post-hearing depositions were taken. The parties filed post-hearing briefs. The matter came under advisement on November 28, 2014.          ISSUES          By agreement of the parties at hearing, the issues to be decided are:          1. Whether Claimant suffered an injury caused by an accident arising out of and in the course of employment on or about November 5, 2007.          2. Whether and to what extent Claimant is entitled to the following benefits;
a. medical care;
b. temporary disability payments;
c. permanent partial impairment;
d. permanent disability in excess of impairment;
e. attorney fees.
         3. Whether apportionment for a pre-existing condition pursuant to Idaho Code § 72-406 is appropriate.          CONTENTIONS OF THE PARTIES          The main thrust of Claimant's argument is that as the result of an industrial accident, he is significantly disabled, to a degree in excess of his permanent impairment rating.          Employer/Surety takes the position that while Claimant may have had an industrial incident, he suffered no impairment or disability beyond his previous ratings from four prior industrial back surgeries. In fact, Defendants seek restitution of impairment benefits previously paid. Claimant is entitled to no additional benefits.          EVIDENCE CONSIDERED          The record in this matter consists of the following:
1. The testimony of Claimant, taken at hearing;
2. Claimant's Exhibits (CE) 1-16, admitted at hearing;
3. Defendants' Exhibits (DE) A-M, admitted at hearing;
4. The post-hearing deposition transcript of Nancy J. Collins, Ph.D., with Exhibits, taken on July 9, 2014;
5. The pleadings contained in the Industrial Commission legal file in this case.
         All deposition objections are overruled with the exception of the objection at page 65 of Dr. Collins' deposition, which is sustained.          After having considered 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          CLAIMANT'S PRE-ACCIDENT WORK HISTORY          1. At the time of hearing, Claimant was 59 years old. He maintained a home in Mountain Home, Idaho, but was renting and residing at a residence in Carlsbad, New Mexico, where he was currently employed.          2. Claimant did not graduate high school, but possesses a GED.1 After a three year stint in the Navy, Claimant joined a carpenter's union, served a four year apprenticeship, and became a journeyman carpenter. He worked in the carpentry and construction field for approximately thirty years.          3. During his time as a carpenter, Claimant focused mainly on commercial construction. He is qualified in all phases of construction, including acting as a foreman, superintendent, and project manager. He has over twenty years' experience in these supervisory positions.          4. In approximately 1990, after injuring his back and neck, Claimant considered changing professions. He enrolled in classes at Boise State University in hopes of becoming a primary education teacher, but withdrew after one semester. Thereafter, he returned to construction, but tried to limit his employment to management positions in order to minimize his physical labor requirements.          5. At some point after 1991, Claimant moved to Oregon, where he primarily worked as a construction supervisor. While there, Claimant experienced multiple low back injuries which led to four low back surgeries, as discussed below. After his fourth surgery, and on the advice of his physician, Claimant chose to again leave the construction field and pursue trucking.          6. Although Claimant had experience operating heavy equipment such as road graders, bulldozers, blades, backhoes, and such, he needed a trucking certificate to drive commercial semi-trucks. Claimant returned to Idaho and attended commercial truck driving school. He completed the truck driving course and obtained his certificate. Thereafter he went to work for Employer driving various types of truck and trailer combinations.          7. Employer's work load was seasonal, and would typically slow during the winters. During the slow periods, Claimant would work at the Mountain Home Air Force base (the base), primarily operating heavy equipment and trucks for snow removal projects.          CLAIMANT'S WORKERS' COMPENSATION CLAIM          8. On November 5, 2007, Employer assigned Claimant to take an empty tractor/trailer rig to Rexburg, pick up a load of wood chips, and return with the full load to Employer's yard. The following day he was to haul the chips to Elgin, Oregon.          9. During his pre-trip inspection, Claimant noticed the driver's seat in his assigned truck was not properly fastened down, which caused it to move and wobble. He notified his foreman, but the seat was not fixed before Claimant began his trip.          10. Claimant reached Rexburg without difficulties. Upon loading the trailer with chips, Claimant lowered his trailer drop axles to account for the additional weight.          11. The tires on the drop axle had significant "flat spots" on them. These out-of-round tires caused considerable jarring or "hammering" inside the cab once the rig reached about thirty-five miles per hour. This jarring, coupled with the broken seat, made for an uncomfortable six hour ride from Rexburg to Mountain Home. By the time he reached Employer's yard, Claimant had difficulty walking due to pain and spasm in his lower back and upper buttocks muscles.          12. Claimant informed Employer of his condition. Claimant told his boss he was going to a doctor in the morning, and could not complete the delivery to Oregon.          CLAIMANT'S PRE-ACCIDENT LOW BACK HISTORY2          13. A medical report prepared in or around January 1990 references Claimant's history of a low back injury from 1983. A First Report of Injury (FROI) from late 1987 cites a low back strain occurring on December 28, 1987. Claimant again contused his low back in 1992, as per a FROI. No further records related to any of these injuries are in evidence. There is no evidence that any of these injuries caused lasting impairment.          14. On July 20, 1989, Claimant hurt his back and neck at work. He treated with injection therapy, non-steroidal medication, physical therapy, and a home exercise program. By mid January 1990, IME physicians Ercil Bowman, M.D., and Mark Holmes, M.D., noted Claimant was much improved, although he still reported some complaints of pain. By the end of that February, these IME physicians determined Claimant was at MMI. They also found Claimant suffered no measurable permanent impairment from this accident. Conversely, Claimant's treating doctor, Michael McMartin, M.D., assessed a 2% whole-person impairment rating for Claimant's mid-lumbosacral back pain. For Claimant's mid and upper back pain, Dr. McMartin assessed an 8% whole person impairment rating and imposed limitations on lifting, prolonged sitting, and overhead work. He also suggested Claimant find work outside of the construction field. Claimant enrolled at BSU. Claimant settled this claim with a lump-sum settlement in September, 1991. Immediately thereafter he quit school and returned to the construction trade.          15. Eventually, Claimant moved to Oregon. There he suffered an industrial low back injury on March 24, 1997. This injury led to a left sided semi-hemilaminectomy for a ruptured disc at L4-5 on April 3, 1997.          16. On August 18, 1997, Claimant returned to Julio Ordonez, M.D., the Portland, Oregon neurosurgeon that had performed Claimant's back...

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