Brock v. Pilot Travel Centers, 070215 IDWC, IC 2012-010234

Case DateJuly 02, 2015
CourtIdaho
KAY BROCK, Claimant,
v.
PILOT TRAVEL CENTERS, Employer,
and
LIBERTY INSURANCE CORPORATION, Surety, Defendants.
No. IC 2012-010234
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
July 2, 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 Alan Taylor, who conducted a hearing in Boise, Idaho on June 25, 2014. Claimant, Kay Brock, was present in person and represented by Taylor Mossman-Fletcher, of Boise. Defendant Employer, Pilot Travel Centers (Pilot), and Defendant Surety, Liberty Insurance Corporation, were represented by Lea Kear, of Boise. The parties presented oral and documentary evidence. Post-hearing depositions were taken and briefs were later submitted. The final brief, Claimant's Reply Brief, was filed on March 11, 2015. On March 20, 2015, Defendants filed their Motion to Strike and supporting affidavit. On March 27, 2015, Claimant filed her Response to Defendants' Motion to Strike. The matter is now ready for decision.          ISSUES          The issues to be addressed are:
1. Claimant's entitlement to additional medical benefits;
2. The extent of Claimant's permanent partial impairment; and
3. The extent of Claimant's permanent partial disability in excess of impairment, including whether Claimant is 100% totally and permanently disabled.
         The issue of Claimant's entitlement to attorney fees was set forth in the Notice of Hearing filed March 21, 2014. Defendants have asked the Commission to strike Claimant's present assertion of her claim for attorney fees. Although this issue was previously noticed for hearing, during a pre-hearing telephone conference conducted by the Referee with all parties on May 19, 2014, Claimant's counsel expressly agreed that attorney fees would not be an issue for the June 25, 2014 hearing. Defendants' Motion to Strike is granted as to Claimant's present assertion of her claim for attorney fees.          CONTENTIONS OF THE PARTIES          All parties acknowledge that Claimant sustained industrial injuries while working for Pilot on March 5, 2012, when she fell while going up a flight of stairs. Defendants accepted responsibility for Claimant's medical care for right arm, rib, and lumbar injuries. Claimant was later released to modified duty work. Claimant now requests additional medical benefits for medications for her ongoing lumbar symptoms. She also requests permanent partial impairment and permanent disability, including 100% total permanent disability, benefits. Defendants have already paid 7% permanent impairment and deny responsibility for further benefits.          EVIDENCE CONSIDERED          The record in this matter consists of the following:
1. The Industrial Commission legal file;
2. Exhibits A through U, admitted at the hearing;
3. The testimony of Claimant taken at the June 25, 2014 hearing;
4. The post-hearing deposition of Nancy J. Collins, Ph.D., taken by Claimant on August 13, 2014;
5. The post-hearing deposition of Vivek "Vic" Kadyan, M.D., taken by Defendants on September 3, 2014; and
6. The post-hearing deposition of Mary Barros-Bailey, Ph.D., taken by Defendants on November 5, 2014.
         All objections made during the depositions are overruled, except Defendants' objection recorded at page 25 of Dr. Collins' deposition which is sustained pursuant to JRP 10(E)(4).          Defendants have moved the Commission to strike Claimant's reference in briefing to Dr. Westbrook as her treating physician. Defendants have not acknowledged Dr. Westbrook as Claimant's treating physician for her industrial injuries, and Dr. Westbrook is not within the recognized chain of referral for treatment of Claimant's industrial injuries; nevertheless, the record establishes that Dr. Westbrook has for years been Claimant's family physician and has met with, examined, and treated Claimant more than any other physician of record for a variety of health concerns, including some symptoms of Claimant's alleged work-related injuries. Claimant's reference to Dr. Westbrook will therefore be allowed to stand. Defendants' motion to strike Claimant's reference to Dr. Westbrook as her treating physician is denied; however, Dr. Westbrook is not thereby recognized as Claimant's designated treating physician for her industrial accident.          After having considered the above evidence and the arguments 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 born in 1951. She is right-handed, five feet four inches tall, and weighs approximately 135 pounds. She was 63 years old and lived in Boise at the time of the hearing. Pilot is a business enterprise operating travel centers, comprised of gasoline and convenience stores, in Boise and numerous other locations.          2. Background. During high school Claimant worked as a hostess at several restaurants. She did well academically, particularly in math, and graduated from Boise High School in 1970. Approximately that same year she began smoking a pack of cigarettes per day, a practice she continued through the time of hearing.          3. After high school, Claimant obtained employment at Sears, answering telephones and working in the parts department. In approximately 1979, she commenced working as a teller at Idaho First National Bank where she waited on customers, balanced tills, and ran daily reports. Claimant took typing and accounting classes while working for the bank. In approximately 1984, she became a loan secretary and was responsible for preparing loan documents for three managers. She used computers to perform her duties.          4. In 1984, Claimant injured her left knee in an automobile accident and later underwent left knee surgery. Her knee improved and did not significantly restrict her work activities thereafter.          5. In 1989, Claimant left the bank and worked briefly as a payroll clerk for Harris, Inc. and as the office manager for Clean Tech. Her duties included shipping and receiving product, maintaining payroll, supervising two salespeople, and waiting on customers. She spent approximately half of her work shift standing and half sitting. She used a computer for much of her work.          6. From 1990 to 1995, Claimant worked as a waitress at Manley's Café. Her duties included waiting on customers and maintaining payroll. She was on her feet for most of her shift. From 1995 through 1996, she worked as a housekeeper at Life Care of Boise where she regularly lifted up to 30 pounds and was on her feet most of her shift.          7. In 1996, Claimant began working as a cashier for Flying J. She was quickly promoted to night manager where her duties included stocking, managing four other employees, and assisting customers. In October 1997, while working for Flying J, a coworker punched Claimant in the upper back. She suffered persisting pain and paraspinal muscle spasm and received medical treatment including physical therapy for several months thereafter. Her upper back pain gradually resolved after approximately one year. Thereafter, she noted only occasional mild upper back pain two or three times per month, which did not significantly limit her work activities.          8. Claimant subsequently moved to Oregon. In 1998, she returned to Boise and was hired back at Flying J as a cashier. After approximately nine months, she moved again to Oregon. She later moved back to Boise and worked again as a housekeeper at Life Care of Idaho cleaning dining rooms, offices, and residents' rooms. She regularly lifted 30 pounds and was on her feet most of her shift.          9. Claimant next returned to Flying J as a cashier. She cleaned the store, stocked products, and waited on customers. After approximately five years, she was promoted to the position of accounting manager. She continued to help stock the store and wait on customers at the fuel desk as needed. In addition, she balanced cashiers' tills and collected on bad checks. She used a computer regularly. Her duties required her to sit three or four hours each shift. Claimant's title was later changed to administrative assistant and she assumed responsibility for supervising employees on the fuel desks. Claimant also interviewed prospective employees; however, she did not hire or fire.          10. Flying J subsequently...

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