Brownlee v. Glanbia Foods, Inc., 072015 IDWC, IC 2007-017523

• Case Date: July 20, 2015
• Court: Idaho

LORI (Stogner) BROWNLEE, Claimant, v. GLANBIA FOODS, INC., Employer, and EMPLOYERS COMPENSATION INSURANCE COMPANY, Surety, and STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendants. No. IC 2007-017523 Idaho Workers Compensation Before the Industrial Commission of the state of Idaho July 20, 2015           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           R.D. Maynard, Chairman.          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Industrial Commission assigned the above-entitled matter to Referee Douglas A. Donohue who conducted a hearing in Twin Falls on July 30, 2013. James Arnold represented Claimant. Commissioner Baskin initially represented Employer and Surety until his appointment to the Commission. Alan Hull represented Defendants Employer and Surety at hearing. Thomas High represented ISIF. The parties presented oral and documentary evidence. An extended post-hearing deposition period ensued. The parties later submitted briefs. The case came under advisement on March 9, 2015. This matter is now ready for decision.          ISSUES          The issues to be decided according to the Notice of Hearing are:

1. Whether the condition for which Claimant seeks benefits was caused by the alleged industrial accident;

2. Whether apportionment of permanent disability for a pre-existing condition pursuant to Idaho Code § 72-406 is appropriate;

3. Whether and to what extent Claimant is entitled to medical care and future medical care;

4. Whether and to what extent Claimant is entitled to permanent disability in excess of impairment, including 100% total permanent disability,

5. Whether Claimant is permanently and totally disabled under the odd-lot doctrine;

6. Whether ISIF is liable under Idaho Code § 72-332; and

7. Defendants' respective liability, if any, upon apportionment under Carey v. Clearwater County Road Dept., 107 Idaho 109, 686 P.2d 54 (1984).

         CONTENTIONS OF THE PARTIES          Claimant contends she is totally and permanently disabled as an odd-lot worker because an attempt to obtain suitable employment would be futile. Claimant leaves to the Defendants to sort out what proportions of liability they respectively bear. Despite a mental handicap, Claimant worked until May 15, 2007 when she injured her shoulder. On or about March 18, 2010 upon becoming medically stable after treatment, she suffered a permanent impairment with restrictions from heavy lifting over 10 pounds with her injured arm and from overhead lifting. She seeks disability benefits from that date.          Employer and Surety contend the primary issue is whether and to what extent ISIF is liable for an apportionment of Claimant's total and permanent disability. They admit Claimant is totally and permanently disabled. Claimant's preexisting cognitive dysfunction is a ratable physical condition for purposes of determining ISIF liability. The cognitive dysfunction is due to a brain injury which arose as a consequence of measles while Claimant was an infant. ISIF experts express contrary opinions without sufficient foundation; they stray from medical opinions into legal opinions, the latter of which they are not competent to express. The record shows that ISIF liability is present and that disability should be apportioned to ISIF. The apportionment should result in 48.2% liability to Employer and Surety, or about 241 weeks, with the remainder to ISIF. Moreover, Employer and Surety have paid some of these benefits in a manner distinguishable from the facts in Corgatelli v. Steel West, Inc., 157 Idaho 287, 335 P.3d 1150, (2014), such that these payments should be recognized to offset their liability for additional permanent disability.          ISIF contends its liability depends upon whether Claimant is mentally retarded or suffers from dementia. According to ISIF's experts, AMA Guides prohibits rating mental retardation for PPI, absolving ISIF from liability. No objective medical record supports a diagnosis which results in ISIF liability. Surety's medical experts' opinions are based primarily upon the subjective recollections of Claimant's family. Even these experts have used the term "retarded" to describe Claimant's condition, which term would preclude ISIF liability.          EVIDENCE CONSIDERED          The record in the instant case included the following:

1. Oral testimony at hearing of Claimant, her mother Linda Ferrero, and HR supervisor Brad Wilson;

2. Joint exhibits 1 through 26;

3. ISIF's exhibits A through E;

4. Depositions of Claimant, Linda Ferrero, Tom Naylor, Brad Wilson, Michael McClay, Ph.D., William Mays, M.D., George Lyons, M.D., Craig Beaver, Ph.D., Rodde Cox, M.D., expert contributors to AMA Guides Steven Leclair, Ph.D. and Christopher Brigham, M.D., and vocational experts Delyn Porter, and Douglas Crum; and

5. A video recording of Claimant's oral testimony taken under the control of Employer and Surety at hearing, admitted post-hearing pursuant to motion by Employer and Surety, without objection.

         All objections made in post-hearing depositions are overruled, except the following objections are sustained:          In the deposition of Steven Leclair, Ph.D., the objection at page 17 to the admission of the untimely, posthearing report, proposed deposition exhibit 3, is sustained; the objection at page 25 is sustained. Nevertheless, Dr. Leclair's opinions about the subject of depo exhibit 3 appear to have been arrived at timely, therefore, Dr. Leclair's testimony is allowed.          Similarly in the deposition of Christopher Brigham, M.D., the same document was objected to at page 14; the objection to its admission there is also sustained.          The Referee submits the following findings of fact and conclusions of law for the approval of the Commission and recommends it approve and adopt the same.          FINDINGS OF FACT          1. "Mental retardation" is a term long used by the medical community without pejorative intent; the AMA Guides and DSM-IV TR still use it; some physicians and the DSM-V now prefer "intellectual disability." These terms are used interchangeably herein. By contrast the term "dementia" refers in this case to a separate condition relating to the central nervous system; such "dementia," if present, is a stable, chronic condition unlike a progressive type of dementia such as occurs in Alzheimer's disease. As will be evident in findings below, at least one treating physician used the phrase "mental retardation" in a way which some experts might have preferred to say "dementia." Where the Referee uses the phrases "cognitive dysfunction" or "mental condition," they are used more generally to include either or both of the above conditions without bias toward "mental retardation," "dementia," or any other potential diagnosis within that realm.          2. The parties do not strenuously dispute that Claimant is totally and permanently disabled, either 100% or as an odd-lot worker or by both measures.          3. Claimant has a preexisting condition, a cognitive dysfunction, which affects her activities of daily living. She receives help from her parents and children in performing activities of daily living. She lost a job as a cashier in a convenience store because she was unable to accurately and quickly make change. She had difficulty performing the minimal paperwork associated with her job in packaging for Employer and required help in this and other aspects of her job. Before April 15, 2007 Claimant successfully obtained and worked unskilled, manual labor jobs. Claimant lives in Richfield. She drives, but only slowly and carefully. In her words, she "cruises." Claimant proudly expresses her ability to read Dr. Seuss books to her children. In her late teens she left school, functioning in special education in the range of 7^th to 9^th grade.          4. On April 15, 2007 Claimant injured her shoulder in a compensable accident. She was working a packaging line for Employer. She had difficulty performing this task before the accident. Co-workers assisted her more than they assisted each other. The job requires lifting heavy weights with one's arms above shoulder level. Before being promoted to packaging, Claimant worked successfully for Employer as a janitor. Friend and coworker, Tom Naylor, testified in deposition that she could not perform that job or any other with Employer now.          5. On May 22, 2007 she sought medical attention complaining that she "repeated the injury" lifting heavy bags at work earlier that day. A shoulder X-ray was...