Boswell v. Vista, 031519 IDWC, IC 2015-033326

• Case Date: March 15, 2019
• Court: Idaho

KIMBERLEY BOSWELL, Claimant, v. EDGEWOOD VISTA, Employer, and TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Surety, Defendants. No. IC 2015-033326 Idaho Workers Compensation Before The Industrial Commission of The State of Idaho March 15, 2019           FINDINGS OF FACT, CONCLUSION OF LAW, AND RECOMMENDATION           THOMAS P. BASKIN, CHAIRMAN.          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Brian Harper, who conducted the hearing in this matter in two sessions; the first in Pocatello, Idaho, on July 18, 2018, where Claimant testified, and the second on July 20, 2018 in Boise, where Defendants’ witness Joyce Marlar testified. Dennis Petersen of Idaho Falls represented Claimant. W. Scott Wigle of Boise represented Defendants. The parties produced oral and documentary evidence at the hearing and submitted post-hearing briefs. Two post-hearing depositions were taken. The matter came under advisement on January 8, 2019.          ISSUES          The sole issue for adjudication in this decision is Claimant’s entitlement to medical care in the form of a proposed lumbar spinal surgery and related treatments. While Claimant lists the issue of temporary disability benefits, she withdrew her request for past TTD benefits in her brief. Claimant attempts to argue her entitlement to temporary disability benefits during her anticipated period of recovery in the event she proves her entitlement to the proposed surgery. However, Defendants do not currently dispute her right to such temporary disability payments should Claimant obtain surgery benefits; thus there is no currently-justiciable issue for resolution. Issues which are merely hypothetical or advisory are not ripe for adjudication. Accord, ABC Agra, LLC, v. Critical Access Group, Inc., 156 Idaho 781, 331 P.3d 523 (2014).          CONTENTIONS OF THE PARTIES          On December 4, 2015, Claimant suffered injury to her low back and right shoulder from an industrial accident. While Claimant’s right shoulder injury recovered with time and treatment, Claimant eventually came under the care of Dr. Benjamin Blair for her continuing low back complaints. In August 2016 Dr. Blair recommended lumbar surgery, and he attributed the need for such surgery entirely to Claimant’s industrial accident. Defendants denied the surgery. Claimant is entitled to continuing medical care as proposed by Dr. Blair, including a followup MRI and the surgery.          Defendants argue that Claimant has not proven her current need for lumbar surgery, and if and when she does undergo such surgery it will be due to conditions unrelated to her work accident.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The testimony of Claimant and Joyce Marlar taken at hearing;

2. Claimant’s exhibits (CE) A through Q admitted at hearing;

3. Defendants’ exhibits (DE) 1 through 10 admitted at hearing; and

4. The post-hearing deposition transcripts of Benjamin Blair, M.D., and Paul Collins, M.D., taken on September 5 and September 27, 2017, respectively.

         FINDINGS OF FACT          1. On December 4, 2015, while in the course and scope of her duties with Employer, Claimant was assisting a resident returning from the restroom when the resident started to fall. Claimant managed to keep the resident from falling but in the process Claimant experienced right shoulder and low back pain which shot down her left leg from her hip to her foot. Claimant was able to work the remainder of her shift and subsequent shifts over the next several days. During this time frame Claimant testified her condition worsened, with bilateral leg pain and difficulty walking.          2. Claimant sought medical treatment five days after the work accident at Power County Hospital, where x-rays were taken. No acute process or abnormalities were identified. Claimant was prescribed anti-inflammatory, muscle relaxant, and pain medications. Physical therapy was ordered. Claimant was allowed to return to work with a “no lifting” temporary restriction.          3. Claimant was taken off work on December 18, 2015 pending physical therapy. Records indicate Claimant obtained some relief from therapy, but still reported ongoing right shoulder and left lower extremity radiculopathy.          4. On January 7, 2016, Claimant was directed to Pocatello Orthopedics (n.k.a. OrthoIdaho), where she came under the care of Benjamin Blair, M.D., a Pocatello orthopedic surgeon, and Justin Pool, P.A.-C. Mr. Pool ordered lumbar x-rays which showed straightening of the normal lumbar lordosis with grade 1 anterior spondylolisthesis of L4 on L5. Degenerative changes and anterior osteophytes were identified at all lumbar levels, with some loss of disc space height at L4-5 and L5-S-1. Mr. Pool encouraged Claimant to continue with physical therapy, and consider an MRI if symptoms persisted; he also prescribed a Medrol dose pack. Mr. Pool restricted Claimant to no repetitive bending or twisting, no overhead lifting, and no lifting over five pounds. These restrictions were conveyed to Employer.          5. Employer made Claimant a light duty job offer which Claimant felt violated her restrictions, so she declined it. Claimant was then terminated on January 15, 2016.          6. With time and therapy treatments Claimant’s shoulder/upper extremity complaints resolved. However, her low back/left lower extremity complaints persisted. On February 1, 2016, Mr. Pool ordered a lumbar spine MRI and prescribed Meloxicam.          7. The MRI showed disc bulges at L2-3, L4-5, and L5-S1 with a small annular tear at L5-S1. Additionally, there was multilevel facet arthropathy, most advanced (moderate in severity) at L4-5 and L5-S1. No significant central spinal stenosis or focal lateralizing disc protrusion was noted. CE E, p. 13.          8. After reviewing the films, Mr. Pool noted Claimant was still complaining of left leg and buttock pain and pain over her left greater trochanter region associated with bursitis. On February 9, 2016, Mr. Pool recommended an injection into Claimant’s left hip for her bursitis, and sought authority for epidural injections at L4-L5 for Claimant’s low back. Mr. Pool felt Claimant could return to work with no restrictions.          9. Anthony Joseph, M.D., of Pocatello Orthopedics obtained authority for three epidural steroid injections. He also took Claimant off work as of March 10, 2016 – the date he administered Claimant’s first injection.          10. When Claimant next saw Mr. Pool three weeks post injection, she denied any significant relief from the lumbar injection. Mr. Pool felt it would be appropriate for Claimant to discuss surgery with Dr. Blair or consider a pain management regimen if the next injection was unsuccessful. He also limited Claimant to sedentary work with option of sitting or standing at her discretion and lifting no more than three to five pounds.          11. Claimant had her second ESI on May 3, 2016. At that time Dr. Joseph noted Claimant was complaining of sharp stabbing pain down her left leg when she walked, although her left foot numbness was better since the first injection.          12. The second injection provided some relief, but Claimant still had left leg complaints with occasional right leg symptoms. It was decided Claimant should see Dr. Blair.          13. Dr. Blair examined Claimant on May 23, 2016, at which time Claimant continued to complain of pain in her lower extremities, left side far worse than right. Her symptoms were relieved by leaning forward in a sitting position and aggravated by walking. His examination was unremarkable in that Claimant had a full range of motion, walked with normal gait, had symmetrical muscle and lower leg sensation, and negative leg raise testing. X-rays again showed Claimant’s grade 1 spondylolisthesis at L4-5; an MRI showed multilevel degenerative disc disease and what Dr. Blair called borderline stenosis at L4-5. Hip x-rays were normal. Dr. Blair ruled out hip involvement, and suggested a myelogram and CT scan to “delineate the extent of neurologic impingement.” CE G, p. 75.          14. Surety then sent Claimant to Lynn Stromberg, M.D., an Idaho Falls neurosurgeon in mid-June. Dr. Stromberg perceived his involvement as providing a second surgical opinion. He examined Claimant and reviewed her lumbar spine x-rays. He noted Claimant’s generalized degenerative changes seemed somewhat advanced for a woman of her age. Dr. Stromberg’s impression after examination was that Claimant had...