Currin v. Clearwater Paper Corp., 063015 IDWC, IC 2010-031121

• Case Date: June 30, 2015
• Court: Idaho

DAVID CURRIN, Claimant, v. CLEARWATER PAPER CORPORATION, Employer, and WORKERS COMPENSATION EXCHANGE, Surety, Defendants. No. IC 2010-031121 Idaho Workers Compensation Before the Industrial Commission of the state of Idaho June 30, 2015           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 Lewiston on December 3, 2014. Claimant was present and represented by Michel T. Kessinger of Lewiston. Bentley G. Stromberg, also of Lewiston, represented Employer/Surety. Oral and documentary evidence was presented and the parties took four post-hearing depositions. The parties then submitted post-hearing briefs and this matter came under advisement on May 18, 2015.          ISSUES          By agreement of the parties, the issues to be decided are:          1. Whether Claimant suffered an industrial accident causing injury; and, if so,          2. Claimant's entitlement to the following benefits:

(a) Medical;

(b) Total temporary disability (TTD);

(c) Permanent partial impairment (PPI); and

(d) Permanent partial disability (PPD);

         3. Whether apportionment pursuant to Idaho Code § 72-406 is appropriate; and          4. Whether Claimant is entitled to an award of attorney fees pursuant to Idaho Code § 72-804.          CONTENTIONS OF THE PARTIES          Claimant contends that the need for his right knee total arthroplasty (TKA) was a result of his industrial accident and he should be reimbursed the associated costs, including TTD benefits during his period of recovery. His industrial accident has rendered him totally and permanently disabled. Defendants acted unreasonably in denying medical and TTD benefits and Claimant is, therefore, entitled to an award of attorney fees.          Defendants assert that the need for Claimant's TKA was not from his industrial accident, but rather from a right knee ACL repair in 1995 and its associated degeneration. Defendants have paid all appropriate benefits up until the time of Claimant's TKA. Defendants relied on medical evidence in terminating Claimant's benefits; therefore, they have not acted unreasonably. Claimant is not totally and permanently disabled, as there are jobs available to him in his labor market, including returning to work for Employer.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The hearing testimony of Claimant and Employer's safety manager David Church.

2. Claimant's Exhibits (CE) 1-13.

3. Defendants' Exhibits (DE) A-U.

4. The post hearing depositions of: John M. McNulty, M.D., taken by Claimant on December 23, 2014; Nancy J. Collins, Ph.D., and Rodde D. Cox, M.D., taken by Defendants on February 11, 2015; and Douglas N. Crum, CDMS, taken by Claimant on February 12, 2015.

         After having considered all the above evidence and the 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 53 years of age and residing in Lewiston at the time of the hearing. He attended Lewiston Senior High and graduated in 1980. Claimant got Cs and Ds and had particular difficulty with math. Claimant can read and write and do basic math. He has had no formal education since high school.          2. Claimant was in the Air Force from 1980 to 1983. He received training in plumbing, but mainly performed routine maintenance work.          3. After Claimant's stint in the Air Force, he worked at a concrete plant in California as a general laborer for about a year-and-a-half before moving back to Idaho where he made furniture for a couple of years. Claimant then went to work for a plumbing company as an apprentice plumber for about a year. After that, Claimant worked as a "prep and finish person" for a boat trailer manufacturer for less than a year.          4. Claimant began his employment with Potlatch^[1] on September 1, 1989. About four years after being "trained to do all sorts of things," Claimant won a bid to work in the napkin department as a unit leader until his injury in October 2010. Part of Claimant's job duties included making adjustments to the napkin paper machine that required him to climb up four or five ladder steps at least 100 times a week. Claimant's job also required him to stand almost constantly, as well as crawl on, under, and around the napkin machine to make adjustments and repairs frequently throughout his shift.          5. At the time of his industrial injury, Claimant was making approximately $20.65 an hour. He received medical, dental, and vision insurance, as well as paid vacation for six weeks per year. Claimant also received three "floater" days a year to be taken whenever he wanted.          6. On October 7, 2010, Claimant suffered an accident he described this way at hearing:

I was running my machine. I was at the packing station, packing product into the - - the cardboard boxes to send up the line. And I looked over my shoulder, and there was a jam coming out of the wrapper. The packs were jammed up coming out of the wrapper.

So I briskly walked around my computer station to go to the jam, and my knee just popped and I had severe pain.

H.T., p. 33.          7. In 1994, Claimant injured his right ACL in a fight with his brother that resulted in an ACL reconstruction. Claimant testified that he recovered from that surgery without any problems and that it, in no way, interfered with the ability to do his job.          8. Claimant immediately reported his accident to his supervisor. He continued to work, but his knee pain became unbearable.          9. About a month after his accident, Claimant first sought medical attention for his right knee injury. On December 8, 2010, Claimant found his way to Marvin Kym, M.D., an orthopedic surgeon. Upon examination and review of a right knee MRI, Dr. Kym diagnosed an acute ACL tear and acute medial and lateral meniscus tears.          10. On January 27, 2011, Dr. Kym performed a right knee arthroscopy with ACL reconstruction and a partial medial meniscectomy.          11. Claimant did not recover as Dr. Kym had expected, even after extensive physical therapy. Claimant attempted a gradual return to work at Employer's in August 2011, but his knee was still symptomatic: "Well, it [my right knee] just continually ached. It was - - it was swelling up on me. It just - - it just hurt. It hurt to stand on it, hurt to climb ladders. It hurt - - it hurt to do anything." HT, p. 37.          12. Claimant returned to see Dr. Kym on April 17, 2013 for his increasing right knee pain. X-rays taken at that time demonstrated bone-to-bone changes in the patellofemoral joint posterior medial compartment, as well as spurs and retained hardware from his two prior ACL repairs. An MRI showed ". . . degenerative meniscal, but osteoarthritis with thinning of the femoral cartilage and probable failure of his ACL graft." CE 6, p. 87. Dr. Kym diagnosed degenerative joint disease of the right knee secondary to previous ACL reconstructions. He recommended a right TKA which was accomplished on April 24, 2013. Claimant testified that Dr. Kym told him that the cause for his TKA was a combination of his two accidents and resultant surgeries. Unfortunately, Claimant still did not get the results he had hoped for.2 He attempted to return to work after his TKA in September 2013, but he only lasted a day-and-a-half due to right knee pain.3 He has not or worked or looked for work since that time as he does not believe there is any job he can do given Dr. Kym's restrictions of limited standing, crawling, stooping, etc., and his knee pain.          13. Surety denied coverage for the TKA, which Claimant and/or his medical insurance paid for. He has not received any time loss benefits.          14. Claimant is currently receiving Social Security Disability Insurance (SSDI) benefits in the monthly amount of $1,927, plus a medical retirement pension in the monthly amount of $2,100 or roughly $48,000 total per year. This is about $500 more than he made in 2012, his last full year with Employer.          15. Claimant has no intention of going back to work, anywhere, and does not intend to look for work. He would lose his SSDI and medical...