Cunningham v. Joint School District No. 2, 102820 IDWC, IC 2017-007936

• Case Date: October 28, 2020
• Court: Idaho

KAREN CUNNINGHAM, Claimant, v. JOINT SCHOOL DISTRICT No. 2, Self-Insured Employer, Defendant. Nos. IC 2017-007936, IC 2018-011996 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho October 28, 2020          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           Thomas P. Baskin, Chairman.          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Sonnet Robinson, who conducted a hearing on February 13, 2020. Claimant, Karen Cunningham, was present in person and represented by Randall Schmitz of Boise. Defendant was represented by Michael McPeek of Boise. The parties presented oral and documentary evidence. Post-hearing depositions were taken. The matter came under advisement on September 4, 2020 and is ready for decision.          ISSUES          The issues to be decided and clarified at hearing are:

1. Whether Claimant is entitled medical care pursuant to Idaho Code § 72-432;

2. Whether Claimant is entitled to total temporary or partial temporary disability benefits related to her industrial accident and medical care (TTD/TPD);

3. Whether or not Claimant is entitled to attorney fees pursuant to Idaho Code § 72-804.^[1]

         CONTENTIONS OF THE PARTIES          Claimant contends that she requires a lumbar surgery and associated TTDs due to her industrial accidents of February 22, 2017 and April 28, 2018, which aggravated her pre-existing low back condition. Her treating physician, Dr. Montalbano, related the need for surgery to her accidents because she was asymptomatic prior to the accidents and because of positive findings on her MRI and bone scan.          Defendant contends that the surgery proposed is neither reasonable nor necessary. The bone scan relied upon by Dr. Montalbano demonstrates inflammation, which can be caused by arthritis; moreover, the bone scan does nothing to prove Claimant's inflammation is acute and caused by the accident versus her arthritis. Lastly, Claimant is a poor candidate for surgery.          Claimant responds that her pre-existing degenerative lumbar spine condition has demonstrably progressed since it was first identified, converting from "subtle" degenerative changes in 2009 to a disc protrusion in 2018, with Claimant's pain complaints only occurring after the accident. Further, Dr. Montalbano did not rely exclusively on the bone scan to determine Claimant's need for surgery was due to the accident: he considered her medical history, his exam, her MRIs, her symptoms, and her failure of conservative measures.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The Industrial Commission legal file;

2. Claimant's Exhibits (CE) A-KK, admitted at hearing;

3. Defendant's Exhibits (DE) 1-44, admitted at hearing;

4. The testimony of Claimant, Karen Cunningham, Burt Cunningham, Hollie Cunningham, Lisa Verdi, RN, Tiffany Brown, RN, Kristen Carp, and Denise Gray, taken at hearing;

5. The post-hearing depositions of Paul Montalbano, MD, Michael Hajjar, MD, and R. David Bauer, MD.

         All outstanding objections are overruled.          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 49 years old at the time of hearing and had worked as a paraprofessional with special needs students for Defendant since 2014. Tr. 17:9-18:13.          2. Relevant Medical History. Claimant was involved in a motor vehicle accident on July 14, 2009, injuring her neck and back. CE Z:1264. Claimant was seen at the ER and followed up with her primary care physician, Robert Franklin, MD. Id. Claimant underwent a course of chiropractic treatment, and was referred to Michael Hajjar, MD, and Christian Gussner, MD, for her cervical spine and lumbar spine respectively. DE 3:18-19.          3. On September 30, 2009, Claimant saw Dr. Gussner. Dr Gussner recorded that Claimant had prior chiropractic treatment in Las Vegas one to two times for her low back, with complete relief of her symptoms. DE 6:39. Since the motor vehicle accident, Claimant had low back pain which was "constant, stabbing, and radiat[ing]" down her back and into her legs. Id. Dr. Gussner referred her to physical therapy and continued her pain medications. Id. at 40.          4. On October 30, 2009, Claimant returned to Dr. Gussner to review her lumbar MRI results. Dr. Gussner recorded that the lumbar MRI showed an L5-S1 protrusion and bilateral L4-L5 foraminal stenosis. DE 6:42. Claimant underwent an ESI shot at her left L5-S1, which provided about a 30% reduction in pain. Id. at 45.          5. Dr. Hajjar also reviewed the lumbar MRI and recorded it showed "some subtle degenerative changes at the L5-S1 disc with some subtle disc bulges." DE 5:29. Dr. Hajjar opined that no intervention, including surgery, was necessary for Claimant's low back based on the MRI. Id. By December 12, 2009, Claimant's low back was "significantly better." Id. at 30. Dr. Hajjar eventually performed a C4-C5 and C5-C6 fusion for Claimant's neck injury with good results. Id. at 31-38.          6. Claimant had a lifting injury to her low back in 2011. CE Y:1231. Claimant presented to Matthew Hales, DC, on September 28,2011, and reported bilateral radiating low back pain. Id. Claimant treated with Dr. Hales from September 28, 2011 until October 28, 2011 for 12 sessions. Id. at 1231-1242. On January 5, 2012, Claimant presented to Dr. Hales and reported a "[v]ery sore low back, just started out of nowhere." Id. at 1243. Claimant treated with Dr. Hales again on January 10 and 12. Id. at 1244-1245. On April 2, 2012, Claimant saw Dr. Hales and reported "constant sharp and tightness discomfort in the low back." Id. at 1246.          7. On November 26, 2012, Claimant reported "frequent bilateral low back pain" to Eric Dahl, DC. Id. at 1247. Claimant treated with Dr. Dahl again on November 28, 2012 and reported improvement after treatment. Id. at 1248. On January 28, 2013, Claimant reported low back pain to Dr. Dahl, which was improved with treatment. On November 7, 2013, Claimant treated with Dr. Dahl again, reporting constant shooting pain and achy discomfort in her buttocks; Claimant treated again on November 8 and reported improvement with treatment. CE Y:1249-1251. There are no other records of low back pain after this appointment.          8. Industrial Accident - February 22, 2017. On February 22, 2017, Claimant was with Student One^[2] on the playground at Willow Creek Elementary; she was transitioning him back inside, when Student One started running away from her. Tr. 19:21-20:7. Claimant described the accident as follows:

Once I caught up to my student we were both running full speed and I was calling on the radio - - the walkie-talkie at the same time I was chasing him... by the time I caught him the momentum of me grabbing the back of his coat and taking him over to [the] left into the grassy area so he wouldn't get hurt, I put myself over the top of him, so as not to hurt him and he is fighting, fighting, fighting. He's very strong.

Id. at 23:21-22:7. Claimant and another teacher then carried Student One back to the school while he was kicking, biting, and screaming. Id. at 23:2-6. Student One was placed in the "quiet room," which did not have a door; Claimant braced herself against a room divider to keep Student One in the quiet room, while Student One rammed the room divider with the full force of his body, and this continued for approximately two hours. Clt. Depo. 40:15-42:2. Claimant reported that she had injured her neck and back and was referred to Saint Alphonsus for treatment. Tr. 24:2-20.          9. On February 25, 2017, Claimant presented to Saint Al's Urgent Care. DE 12:93. Claimant reported neck and low back pain, but relayed she was more concerned with her neck pain because of her previous fusion. Id. Claimant was diagnosed with cervical strain, lumbosacral strain, and neck pain; Claimant was prescribed anti-inflammatories, muscle relaxants, and pain medication and was instructed to follow-up with occupational health. Id. at 96-97.          10. On March 3, 2017, Claimant followed-up with St. Al's Occupational Health and saw Travis Smith, PA. DE 13:100. Claimant's low back exam showed "paraspinous muscle tenderness in the lower lumbar area following about an L4-L5 level with tightness, but no acute spasming...