Bostock v. GBR Restaurants, LLC, 110620 IDWC, IC 2018-008125

• Case Date: November 06, 2020
• Court: Idaho

JENNY BOSTOCK, Claimant, v. GBR RESTAURANTS, LLC, Employer, and EMPLOYERS COMPENSATION INSURANCE COMPANY, Surety, Defendants. No. IC 2018-008125 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho November 6, 2020          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 Alan Taylor, who conducted a hearing in Twin Falls on January 23, 2020. Claimant, Jenny Bostock, was present in person and represented by Matthew Vook of Idaho Falls. Defendant Employer, GBR Restaurants, LLC (restaurant) and Defendant Surety, Employers Compensation Insurance Company, were represented by Michael McPeek of Boise. The parties presented oral and documentary evidence. Post-hearing depositions were taken, and briefs were later submitted. The matter came under advisement on August 25, 2020.          ISSUES          The issues to be decided were narrowed at hearing and are:

1. Whether Claimant is medically stable or is entitled to additional medical treatment due to her industrial accident;

2. Whether Claimant is entitled to a change of physician to Benjamin Blair, M.D.;

3. Whether Claimant is entitled to additional temporary disability benefits; and

4. Whether Claimant is entitled to an award of attorney fees.

         CONTENTIONS OF THE PARTIES          All parties acknowledge Claimant suffered an industrial accident on February 5, 2018, when she fell down a flight of stairs at Employer's restaurant. Defendants accepted the claim and paid for conservative medical treatment and temporary disability benefits. Claimant asserts she sustained a T9 vertebral fracture and requires further medical treatment. Defendants assert that Claimant is medically stable, and her injuries require no further treatment. Claimant requests that Benjamin Blair, M.D., be designated as her treating physician. She also requests attorney fees for Defendants' unreasonable denial of additional temporary disability benefits and medical treatment.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The Industrial Commission legal file.

2. The testimony of Claimant, Jenny Bostock, and Matthew Mann, taken at hearing.

3. Claimant's Exhibits A-L admitted at the hearing.

4. Defendants' Exhibits 5, 6, 11, 14, and 15, admitted at the hearing.

5. The post-hearing deposition testimony of Benjamin Blair, M.D., taken by Claimant on February 24, 2020.

6. The post-hearing deposition testimony of Scott Tintle, M.D., taken by Defendants on June 26, 2020.

         All outstanding objections are overruled and motions to strike are denied.          After having considered the above evidence and the arguments of the parties, 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.          FINDINGS OF FACT          1. Background. Claimant was born in 1959. She was 60 years old and resided in Buhl at the time of the hearing. Claimant has legal custody of three of her grandchildren who live with her. She also helps care for her 80-year old mother who lives nearby.          2. Claimant has resided in California, Florida, New Hampshire, Utah, and Idaho. She did not graduate from high school and has not obtained a GED. Prior to 2018, Claimant worked in waitressing, babysitting, and advertising. For a time, she was a standup comedian and owned an advertising and design company that created logos and discount cards. In approximately 2010, Claimant experienced lumbar symptoms for which she received injections and her symptoms resolved. She had no prior thoracic spine problems.          3. On February 5, 2018, Claimant worked as a waitress at a bowling alley and had just accepted a job at Employer's restaurant.          4. Industrial accident. On February 5, 2018, Claimant began her first day of work at the restaurant. She testified of her experience as she started her first shift:

The lady that hired me said to follow me ... and, then, she turned and faced me and she put her arms out and said you can hang your purse here and there was it looked like a closet, like a little closet and it was pitch black, but there was a light from somewhere else shining on the 1st wall and you could see a couple purses hanging right there. So, I stepped in to hang my purse there and it turned out to be a straight drop off staircase .... And it happened so fast, ... my foot didn't touch the ground and so like it... was a step down or something and ... there was nothing to grab onto and it was so dark that I couldn't see anything and so somehow I flipped around and went down backwards and ... when my head hit that I thought I'm not going to live through this..... [w]hen I hit the bottom I didn't stop, I kept going clear across that basement floor and I landed in a pile of lumber and I think concrete.

Transcript, p. 21, 1. 14 through p. 22, 1. 18. Claimant was taken by ambulance to the emergency room. She has not worked since.          5. Medical treatment. On February 5, 2018, Claimant was examined at the emergency room by Heather Ellsworth, M.D., who noted Claimant had fallen down a flight of stairs and reported head and mid back complaints. X-rays revealed T9 vertebral body height loss which was initially considered to be from remote trauma. Claimant was released from work. On February 9, 2018, Devin Bowman, PA-C, examined Claimant and recorded acute thoracic pain and concussion symptoms. On February 14, 2018, Douglas Stagg, M.D., began treating Claimant. He diagnosed entire spine strain, thorax contusions, closed head injury and concussion. He restricted Claimant to lifting no more than five pounds and working no more than two hour shifts. On February 19 and again on March 6, 2018, Dr. Stagg requested an MRI.          6. On March 13, 2018, Claimant underwent a thoracic MRI that revealed: "acute/sub acute fracture of the T9 vertebral body with anterior wedging deformity and approximately 25% height loss. There is reactive edema involving the Pericles without posterior element fracture or propulsion. No associated central canal or foraminal stenosis." Exhibit C, p. 72. Claimant was taken off work and Dr. Stagg referred her to David Verst, M.D.          7. On April 4, 2018, Dr. Verst examined Claimant and recorded her credible complaints of mid thoracic and right arm pain. He found Claimant suffered an acute closed vertebral fracture, prescribed physical therapy, referred her for management of her right frozen shoulder, and continued her off work. Dr. Verst examined Claimant on May 16, 2018, continued her off work and ordered additional physical therapy. On August 8, 2018, Dr. Verst recorded Claimant's complaints of continuing credible mid back pain, noting that she had failed to improve with conservative care. He ordered additional physical therapy, an MRI, and continued Claimant off work.

8. On October 10, 2018, Claimant underwent another thoracic MRI that revealed:

1. Now chronic compression of the T9 vertebral body with 50% loss of the normal vertebral body height.

2. T2 hyper intensity in the left T8 and T9 Pericles and facet. There is a suggestion of a linear Tl hypo intensity in the left T9 pedicab which may represent a fracture. Alternatively, this may represent stress reaction edema from altered mechanics due to the compression fracture.

Exhibit C, p. 80.

9. Dr. Verst ordered additional physical therapy and continued Claimant off work.

10. On October 25, 2018, Scott Tintle, M.D., examined Claimant at Defendants'

request. Dr. Tintle recorded:

Diagnosis

1. T9 compression fracture, arising in and out of the occupation due to the industrial accident.

2. Right shoulder mild AC joint arthritis unrelated to the industrial injury and not aggravated by the injury

....

The true only objective findings are the imaging studies to include the MRI that has recently been performed, which I have seen a report of but I am unable to evaluate the images. The examinees has a worsening of her compression, now 50% of the T9 with some edema at adjacent levels concerning for a worsening of her thoracic compression fracture. ....

While I do again believe that there are some pain behaviors present on my examination, I do believe that the examinees does need further treatment necessary to resolve the

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