Buckholz v. Mobile Concrete of Idaho, LLC, 091819 IDWC, IC 2015-013382

• Case Date: September 18, 2019
• Court: Idaho

DAVID BUCKHOLZ, Claimant, v. MOBILE CONCRETE OF IDAHO, LLC, Employer, and IDAHO STATE INSURANCE FUND, Surety, Defendants. No. IC 2015-013382 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho September 18, 2019           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           Thomas P. Baskin, Chairman.          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Industrial Commission assigned this matter to Referee Michael Powers. He conducted a hearing in Boise on January 29, 2019. Dennis Petersen represented Claimant. Neil McFeeley represented Employer and Surety. The parties presented oral and documentary evidence. The parties took post-hearing depositions and submitted briefs. The case came under advisement on July 3, 2019. Upon Referee Powers’ retirement and pursuant to Ayala v. Robert J Meyers Farms, Inc., 165 Idaho 355, 445 P.3d 164 (2019), the Commission asked the parties on July 19, 2019, if they would like the recommendation to be written by another referee or if they desired a new hearing. Defendants and Claimant both responded that they did not desire a new hearing in the matter. The Commission reassigned the case to Doug Donohue on July 30, 2019, and the matter is ready for decision. The Commissioners reviewed the proposed recommendation, and have decided to issue their own conclusions of law and order in the matter.          ISSUES          The issues to be decided are:

1. Whether a below-the-knee amputation constitutes a reasonable and necessary medical care benefit; and

2. Whether Claimant is entitled to time-loss benefits during the period of recovery following the amputation.

         All other issues were reserved.          CONTENTIONS OF THE PARTIES          Claimant contends that after he rolled his right ankle in a compensable accident, he underwent surgery to stabilize the ankle joint and repair a torn tendon. Subsequent conservative care, serial nerve blocks, and a surgery to remove hardware have not helped quell the unrelenting pain which has continued through the date of hearing. Since June 2018, one physician, Kaitlin Neary, M.D. has opined amputation to be “a viable option.” Since August 2018 James Bates, M.D. has opined Claimant to be “a good candidate” for amputation. After subsequent psychological evaluation, Craig Beaver, Ph.D. did not find any contraindications for amputation nor for continued conservative measures.          Employer and Surety contend that Claimant suffers from Complex Regional Pain Syndrome (CRPS) as diagnosed by Dr. Bates and others, and that amputation is inappropriate treatment. Dr. Neary actually opposed amputation but belatedly deferred to Dr. Bates. Conversely, Dr. Bates believed it was Dr. Neary who initially recommended amputation. Prior surgery having successfully stabilized Claimant’s ankle, Travis Kemp, M.D. and Karl Zarse, M.D. recommend conservative treatment with additional injections. They oppose amputation here. These doctors disagree about the possible efficaciousness of a spinal cord stimulator. Dr. Zarse has opined that amputation for CRPS symptoms is not reasonable medical treatment. Moreover, a subsequent intervening car accident compounds the uncertainty. Although Surety has agreed to pay for treatment provided by Dr. Bates, Dr. Bates was sought outside the chain of referral and cannot be considered a “treating physician.” Rather, Claimant interrupted his treatment with Dr. Zarse to seek out Dr. Bates. As a result, conservative measures have not been given a full opportunity to ameliorate Claimant’s symptoms. The physicians disagree about Claimant’s ankle instability and about what criteria constitutes a basis for or against amputation.          EVIDENCE CONSIDERED          The record in the instant case included the following:

1. Oral testimony at hearing of Claimant;

2. Joint exhibits A through X;

3. Post-hearing depositions of James Bates, M.D., Karl Zarse, M.D., Travis Kemp, M.D., and Kaitlin Neary, M.D

         FINDINGS OF FACT          1. Claimant worked for Employer driving a concrete truck. On March 16, 2015, Claimant stepped out of the truck and rolled his right ankle. Ex. A; HT, 9. Claimant assumed he sprained his ankle and worked despite the pain. HT, 26. Claimant obtained and wore an over-the-counter ankle brace, and continued working for over two months before he first sought medical care. HT, 26.          Medical Care: 2015          2. On May 11, 2015, Claimant visited Primary Health. Ex. F, 5. Stephen Martinez, M.D., his physician’s assistant, or his nurse practitioner, Travis Robbins, examined Claimant at this and later visits. Ex. F. Claimant’s bruising had resolved, but pain and swelling remained. The examiner expressly noted an absence of instability in the ankle. Id. at 5. X-ray showed mild swelling, no fracture. Id. Diagnosis: ankle sprain. Id. at 6.          3. On May 18, 2015, Claimant returned to Primary Health for follow-up. Ex. F. Dr. Martinez opined that Claimant’s condition was work related, prescribed a brace, and referred Claimant to physical therapy. Id. at 7-8. Dr. Martinez imposed a temporary restriction of occasional right leg weight-bearing. Id. at 9-10.          4. Claimant’s physical therapy notes indicate that Claimant sprained his ankle three times around March 16, 2015, and again on May 5, 2015. Ex. M, 1. On May 26, 2015, Claimant reported two additional episodes of twisting his ankle, this time walking on uneven ground. Id. Claimant repeated these reports of flare-ups of pain, without an accompanied sprain or twisting incident, on two other visits. Id. at 3; 5. On June 8, 2015, Claimant still had pain and swelling, and decreased range of motion. Id. at 6. The examiner noted Claimant was tolerating modified work duty. Id. at 9.          5. On July 13, 2015, Claimant had an MRI read by Curtis Coulam, M.D., that showed tenosynovitis and tendinopathy in the peroneus longus tendon, some additional tendon sprains, and some fluid which accounted for the continued swelling. Ex. F, 21-22. No tendon tears were evident, and some early arthritis was also noted. Id. at 22.          6. Dr. Martinez referred Claimant to board-certified orthopedic surgeon Travis Kemp, M.D., who specializes in foot and ankle conditions. Ex. G. On August 20, 2015, Claimant’s examination showed significant swelling and tenderness; his range of motion was full but painful. Id. at 1-4. Dr. Kemp noted the earlier x-rays showed a “very small chip fracture/avulsion of the distal tip of the fibula,” and the earlier MRI showed a possible tear of the peroneus longus tendon. Id. at 2. Fluoroscopic views under weight-bearing showed gross instability from a ruptured anterior talofibular ligament (ATFL). Id. Dr. Kemp recommended “major elective surgery.” Id. at 3.

This is an acute and complicated problem that poses a threat to bodily function and would benefit from major elective surgery.

At this point, the patient has a gross instability of his right ankle demonstrated on stress views and confirmed by MRI as rupture of the ATFL. In addition, he has damaged the peroneus longus tendon with this injury. I had a long discussion with the patient regarding his options including continue nonoperative management with anti-inflammatories and physical therapy. Thus far, he has failed this regimen and is ready to pursue surgical intervention, which I think is the right decision.

With a continued unstable ankle, the patient could expect instability to continue. He could expect future sprains, which would be frequent, and he could expect worsening of his arthritis due to continued damage of the ankle. He would like to avoid all of these scenarios.

Id. at 3.          7. On September 2, 2015, Dr. Kemp performed arthroscopic surgery. Id. at 5. Dr. Kemp re-anchored the AFRL, which had detached from the fibula. Id. He also shaved away arthritis and performed a syndesmotic repair to correct a high ankle sprain. Id. at 5-8. Afterward in visits, Claimant repeatedly described his ankle as “unstable” but Dr. Kemp’s testing and observation revealed it objectively “stable.” Id.          8. Claimant began another round of physical therapy on October 16, 2015. Ex. N, 1. Although he reported intermittently waxing soreness, a feeling “as though the ankle is going to break,” and a “sensation of tearing through the ankle,” he did not report incidences of again spraining or twisting the ankle. Id. at 46; 52. Claimant attended physical therapy regularly before his December 22, 2015 car accident. Id. Claimant reported that he was wearing his CAM boot during the...