Castro v. AG Express, Inc., 042216 IDWC, IC 2011-028830

• Case Date: April 22, 2016
• Court: Idaho

JESSE M. CASTRO, Claimant, v. AG EXPRESS, INC., Employer, and NATIONAL INTERSTATE INSURANCE COMPANY, Surety, Defendants. No. IC 2011-028830 Idaho Workers Compensation Before the Industrial Commission of the state of Idaho April 22, 2016           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 Michael E. Powers, who conducted a hearing in Twin Falls on August 11, 2015. Claimant was present and represented by Dennis R. Petersen of Idaho Falls. Lora Rainey Breen, of Boise, represented Employer/Surety (Defendants). Oral and documentary evidence was presented and the record remained open for the taking of two post-hearing depositions. This matter came under advisement on March 17, 2016 and is now ready for decision.          ISSUES          Pursuant to a "Stipulation Regarding Issues" filed by the parties on March 9, 2016, the issues to be decided are:

1. Whether, at the time of the hearing, Claimant needed further medical treatment related to his September 29, 2011 industrial accident;

2. Whether Claimant is entitled to future temporary total disability benefits (TTDs); and,

3. Whether the Industrial Commission should retain jurisdiction beyond the statute of limitations to determine Claimant's entitlement to permanent partial impairment (PPI) and permanent partial disability (PPD), if any.

         CONTENTIONS OF THE PARTIES          Claimant contends that he injured his left rotator cuff/labrum in an accident wherein he was attempting to free a tarp strap that had become stuck. In an attempt to free the tarp, Claimant put all of his weight on his left arm/shoulder and was dangling "free-fall" from the tarp strap. He claims to need surgery to repair his torn labrum.          Defendants contend that no physician has opined that Claimant needs the requested surgery, and, even if he does, such surgery is not related to his industrial accident. They rely upon the opinions of two IME physicians, as well as Claimant's treating physician, who all opined that left UE MRI performed shortly after the subject accident did not reveal any torn labrum or rotator cuff tear so he must have torn it subsequently.          Claimant counters that the post-accident MRI was "limited" by the position of Claimant's left arm as well as his obesity, so that a torn labrum could easily have been missed on the study.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The testimony of Claimant taken at the hearing.

2. Claimant's Exhibits (CE) A-U admitted at the hearing.

3. Defendants' Exhibits (DE) 1-4 admitted at the hearing.

4. The post-hearing deposition of Mark Wright, M.D., taken by Claimant on November 10, 2015.

5. Thr post-hearing deposition of C. Scott Humphrey, M.D., taken by Defendants on December 14, 2015.

         After having considered all the above evidence and briefs 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 45 years of age and residing in Rupert at the time of the hearing. He stood 5'7" tall and weighed about 370 pounds at the time of his accident which he described at hearing as follows:

I finally got loaded and pulled the truck out of the way, so the next truck could back in and load up the previous driver, who must have driven it during the night shift, when he rolled up the tarp he jumped the rope across one of the hangers. There is usually - - sometimes just three, one in the middle and two on the ends or sometimes it could be four or five hangers that hold the tarp while it's rolled up on the truck in motion down the road and the rope was crossed underneath the hangers and the tarp was kind of - - not really tight, it was baggy, so I did not see that the - - the rope was caught up on the hanger, so I started pulling the rope. I put my gloves on and they are leather gloves, kind of like, oh, cowboy gloves and I tried to pull the rope after loosening the strap and the tarp wouldn't come over, so in the middle of the trailer there is a ladder. I climbed up the first two steps of the ladder and wrapped the rope around my left hand and using my weight jumped off of the ladder thinking that - -

Q. Jumped off the ladder into the air, so to speak?

A. Yes. I call it commando style where I would just jump - - it's kind of backfired on me before and the rope's broke, but this time I just hung up and my left arm got caught up - -

Q. Okay.

A. - - and right away I could hear like a celery stock [sic] kind of crunchiness.

Q. Okay. You used your right arm when you did that motion and you raised your arm in the air, but it was your left arm that got caught - -

A. Yeah. It was my left arm.

Q. Okay. And the rope was wrapped around your hand, did I understand that?

A. Yes. So, I was kind of pretty much not really hanging myself, but I was kind of dangling with all my weight between me and the rope.

Q. And where did you feel pain at that point in time?

A. On my left shoulder.

HT., pp. 24-25.          2. Claimant finished tarping his load with the help of a co-worker and reported his accident. He then took three days off and made an appointment to see Mark Wright, M.D., an orthopedic surgeon. Dr. Wright had previously operated on Claimant's right shoulder and left clavicle after an accident occurring on December 1, 2010. Dr. Wright obtained a left shoulder MRI that revealed a full thickness left rotator cuff tear for which Dr. Wright recommended surgery; the surgery was accomplished on February 2, 2012. Claimant then attended physical therapy.          3. On July 30, 2012, Claimant was released from physical therapy to return to work without restrictions regarding his left shoulder. Claimant's discharge summary from physical therapy states:

The patient reports very little symptoms in the shoulder and rates his pain at a 0-1/10 on a 0-10 scale. He reports that he has been doing all of his activities of daily living without any exacerbation of symptoms. He also reports that he has been continuing with his exercise program. This date we were able to advance his [exercise program] with higher-level activities and weights. The patient has a fair amount of equipment at home so he has been able to do a lot of his program independently with instruction from [his] therapist. He has been released to go back to work and at this time, we find there is nothing related to his shoulder function that would inhibit him from having a safe return back to his driving duties. We appreciate working with this kind gentleman.

DE 1, p. 61.          4. Dr. Wright released Claimant to return to work in May, 2012. However, Claimant remained off work to have bilateral carpal tunnel surgeries (right – June 2012; left – September 2012). The carpal tunnel treatment was related to Claimant's December 1, 2010 accident. Because Claimant continued to have wrist problems, Dr. Wright referred him to hand specialist Tyler Wayment, M.D, who performed another right carpal tunnel release on January 24, 2013. Dr. Wayment released Claimant to return to work on May 22, 2013. Claimant did not work between his February 2, 2012 surgery and his May 22, 2013 release.          5. In May, 2013, Claimant began working for Valley Agronomics hauling 1500 gallon tanks of liquid fertilizer. He began experiencing problems with his left shoulder again:

Well, when you open the door to climb into the truck there is usually a couple of handles there to pull yourself up onto

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