Chittock, 022692 IDWC, 91-725685

• Case Date: February 26, 1992
• Court: Idaho

1992 IIC 0174 Chittock, Peter Russell Norm’s Cafe State Insurance Fund 91-725685 Idaho Workers Compensation Before The Industrial Commission Of The State Of Idaho February 26, 1992           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND PROPOSED ORDER          Claimant filed an Application for Hearing to obtain workers’ compensation benefits for a back injury which he alleges occurred as the result of an accident in the course of his employment with Norm’s Cafe on November 29, 1990. The matter was assigned by the Commission to Referee Robert C. Youngstrom, who conducted a hearing in Twin Falls on July 31, 1991. Claimant was present in person and was represented by Paul M. Beeks, Esq., of Smith & Beeks, of Twin Falls. The Defendants were represented by Brit D. Groom, Esq., of Taylor & Groom, of Twin Falls. Oral and documentary evidence was presented, and the matter was continued to permit the submission of additional evidence in the form of post-hearing depositions.          Subsequently, the depositions of Terri Cosgriff and Robert J. Porter, M.D. were submitted, and counsel for the parties submitted briefs. Having considered the evidence and arguments of counsel, the Referee submits the following Findings of Fact, Conclusions of Law, and Proposed Order which he recommends the Commission approve and adopt as its decision and order.          ISSUES          The issues to be determined are:

         (1) Whether Claimant suffered a personal injury caused by an accident arising out of and in the course of his employment as he alleges.          (2) Whether Claimant is entitled to an award of attorney fees pursuant to Idaho Code, Section 72-804.          (3) Whether Defendants should be sanctioned for discovery abuses.

         EVIDENCE CONSIDERED          The record of evidence in this case consists of the testimony presented at the Referee’s hearing on July 31, 1991, exhibits 1 and 2 admitted in evidence at the hearing, the deposition of Robert J. Porter, M.D., and exhibits 1 and "A" attached to that deposition, and the deposition of Terri Cosgriff and exhibit 1 attached to that deposition.          FINDINGS OF FACT          I          Claimant, Peter Russell Chittock, was employed as a dishwasher by Tom Collins, owner and operator of Norm’s Cafe, for approximately a four week period in 1990. Claimant’s employment was covered by the provisions of the Idaho Workers’ Compensation Law, and the Employer was insured for his obligations under that Law by the Idaho State Insurance Fund. Claimant is married and has one stepchild. Claimant’s average weekly wage for workers’ compensation purposes was $134.00 per week.          II          Claimant suffered an injury to his back on November 29, 1990. On that date, Claimant was performing his work as a dishwasher at Norm’s Cafe. He was in the process of taking a tub filled with clean dishes to the front of the cafe to place on a shelf. As he turned away from the area in the kitchen where the sink and dishwasher were located, his foot slipped on a wet area of the floor, and he fell backwards striking his lower back against a railing around the dishwasher and sink.          III          Claimant had initially injured his low back area in a motorcycle accident in 1986. He had continuing and increasing difficulty with his back. He was examined on July 31, 1990, by Dr. Michael T. Phillips, Twin Falls orthopedic surgeon. Dr. Phillips diagnosed a probable protruding disc at the L5-S1 level. An MRI examination confirmed the existence of a herniated disc. Claimant was then seen by Dr. Robert J. Porter, Twin Falls orthopedic surgeon, who took over his care. Dr. Porter performed surgery in September 1990 to remove a portion of the disc at the L5-S1 level. Claimant was seen on several occasions by Dr. Porter for follow up examinations. He continued to experience pain related to his back condition. However, Claimant returned to work before the end of September as a truck driver for a farmer during the...