Cooke v. Bonner Foods, Inc., 040616 IDWC, IC 2009-019578

• Case Date: April 06, 2016
• Court: Idaho

LEMAE COOKE, Claimant, v. BONNER FOODS, INC., Employer, and LIBERTY NORTHWEST INSURANCE CORPORATION, Surety, and DOCKSIDE RESTAURANT, Employer, and STATE INSURANCE FUND, Surety, Defendants. Nos. IC 2009-019578, IC 2013-008560 Idaho Workers Compensation Before the Industrial Commission of the state of Idaho April 6, 2016           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           R.D. Maynard, Chairman          BACKGROUND          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned claim IC 2009-019578 to Referee Alan Taylor, who conducted a hearing in Coeur d'Alene, Idaho on February 2, 2012. Claimant, LeMae Cooke, was present in person and represented by Starr Kelso, of Coeur d'Alene. Defendant Employer, Bonner Foods, Inc. (Bonner), and Defendant Surety, Liberty Northwest Insurance Corporation (Liberty), were represented by Scott Harmon, of Boise. On March 20, 2013, the Commission issued its decision concluding that Claimant suffered an industrial accident causing cervical and right upper extremity injury while working for Bonner on July 4, 2009.          Claimant subsequently filed claim IC 2013-008560 alleging an industrial accident and injury to her neck, right arm, and right shoulder on or about March 25, 2013, while working for Dockside Restaurant. Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned this matter to Referee Taylor, who consolidated claims IC 2009-019578 and IC 2013-008560 for hearing after motion and notice of non-objection by the parties.          On May 15, 2015, Claimant filed a motion pursuant to Idaho Code § 72-313 for an order requiring one of the Defendants to immediately begin paying medical benefits and temporary disability benefits. The Referee denied the motion and on June 5, 2015, Claimant requested reconsideration by the full Commission. On June 5, 2015, the Commission dismissed Claimant's request for reconsideration.          On June 10, 2015, the Referee conducted a hearing in Coeur d'Alene, Idaho on the above-entitled consolidated cases. Claimant, LeMae Cooke, was present in person and represented by Starr Kelso, of Coeur d'Alene. Defendant Employer Bonner, and Defendant Surety Liberty, were represented by Kent Day, of Meridian, Idaho. Defendant Employer Dockside Restaurant (Dockside), and Defendant Surety, State Insurance Fund (the Fund), were represented by James Magnuson of Coeur d'Alene. The parties presented oral and documentary evidence. Post-hearing depositions were taken and briefs were later submitted.^[1] The matter came under advisement on December 15, 2015.          ISSUES          The issues to be decided are:

1. Whether the condition for which Claimant seeks benefits was caused by either of the industrial accidents or whether Claimant's condition is due in whole or in part to a preexisting and/or subsequent injury/condition;

2. Claimant's entitlement to medical care; and

3. Claimant's entitlement to temporary disability benefits.

         CONTENTIONS OF THE PARTIES          Claimant maintains Bonner and Liberty did not provide her appropriate medical treatment for her July 4, 2009 industrial accident and resulting cervical, right shoulder, and right upper extremity injury in spite of the Commission's March 20, 2013 decision and order. She alleges another industrial accident while working for Dockside on March 25, 2013, resulting in further cervical and right upper extremity injury. Dockside and the Fund initially accepted the 2013 claim and provided cervical surgery. Claimant asserts entitlement to additional medical and temporary disability benefits for her cervical, right shoulder, and right upper extremity injuries.          Bonner and Liberty maintain that Claimant's need for medical treatment, if any, is due to her preexisting condition or to her March 25, 2013 accident at Dockside. Dockside and the Fund assert that Claimant suffered at most a mild traction injury to her right upper extremity and mild flare-up of her preexisting conditions in her 2013 accident, and that her injuries and need for further treatment, if any, result from her July 4, 2009 accident at Bonner or her preexisting conditions. All Defendants maintain that Claimant suffered pre-existing right scapula pathology and cervical arthritis, and that her work accidents did not cause her need for further medical treatment.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. All evidence considered in the Commission's March 20, 2013 decision;

2. The Industrial Commission legal file;

3. Claimant's Exhibits A through Z and AA through EE, admitted at the June 10, 2015 hearing;

4. Defendants' (Dockside and the Fund) Exhibits 1 through 26, admitted at the June 10, 2015 hearing;

5. The testimony of Claimant taken at the June 10, 2015 hearing;

6. The post-hearing deposition of Bret Dirks, M.D., taken by Claimant on July 2, 2015;

7. The post-hearing deposition of Roger Dunteman, M.D., taken by Claimant on July 8, 2015;

8. The post-hearing deposition of Jeffrey Larson, M.D., taken by Defendants Dockside and the Fund on July 20, 2015; and

9. The post-hearing deposition of Stephen Fuller, M.D., taken by Defendants Dockside and the Fund on September 8, 2015.

         All pending objections are overruled and motions to strike are denied. 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 1966. She was 48 years old and lived in Post Falls at the time of the 2015 hearing. She is right-handed. She had no cervical, right shoulder, or upper extremity symptoms prior to July 2009.          2. July 4, 2009 accident at Bonner. On July 4, 2009, Claimant suffered an industrial accident while working at Bonner Foods when she maneuvered a case of bottled water over the scan bar, causing cervical, right shoulder, and right upper extremity injury.          3. On July 20, 2009, cervical x-rays disclosed moderate disc space narrowing at C5-6, degenerative facets at C4-5, C5-6, and C6-7, and mild cervical spondylosis. Dr. Brinton prescribed medication and referred Claimant to physical therapy. The therapist noted signs of C4-C5-C6 radiculitis and intermuscular spasms in Claimant's upper back, cervical spine, right shoulder, and right upper extremity.          4. On July 30, 2009, Dr. Chambers diagnosed cervical muscle spasm and lateral epicondylitis. A September 23, 2009 cervical MRI revealed C5-6 and C6-7 moderate diffuse circumferential disc bulges extending into the right neural foramina and resulting in right neural foraminal encroachment at C5-6 and C6-7, and extending into the left neural foramina at C5-6.          5. On October 28, 2009, Dr. McCollum examined Claimant at Liberty's request. He concluded that Claimant suffered pre-existing cervical spine arthritis. Dr. McCollum recommended evaluation by a neurologist. A November 17, 2009 nerve conduction study was normal. Dr. McCollum opined Claimant needed no medical treatment due to her 2009 industrial accident.          6. On December 15, 2009, Dr. Chambers reaffirmed his prior diagnosis. He referred Claimant to orthopedist Jonathan King, M.D., for evaluation of her right shoulder and arm, and to neurologist William Ganz, M.D., for evaluation of her neck. On January 6, 2010, Dr. Ganz examined Claimant and noted her cervical MRI showed disc bulges at C4-5, C5-6, and C6-7. He found Claimant's deep tendon reflex absent at the right triceps. He restricted her to lifting no more than 25 pounds, and directed her to avoid all over shoulder-height work. Bonner did not provide Claimant appropriate modified-duty work. Dr. Ganz referred Claimant to physical therapy and recommended cervical steroid injections. Liberty denied medical treatment and Claimant lacked the resources to obtain it. Liberty denied temporary disability benefits and Claimant sought suitable light-duty work.          7. On April 9, 2010, Claimant commenced working as a cashier at Daanen's Deli. She was subsequently promoted to a management position and her hours increased. In November 2010, Claimant was unable to continue the 50-hour per week schedule required of her as a manager and ceased working at the deli.          8. On March 23, 2011, Claimant began working as a server at Dockside at the Coeur d'Alene Resort. She continued to suffer cervical, right shoulder, and right arm symptoms and compensated by...