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 HISTORY
2
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...