Davidson v. Idaho Elks Rehabilitation, 122415 IDWC, IC 2011-022463

Case DateDecember 24, 2015
CourtIdaho
MATTHEW DAVIDSON, Claimant,
v.
IDAHO ELKS REHABILITATION, Employer,
and
LIBERTY NORTHWEST INSURANCE CORPORATION, Surety, Defendants.
No. IC 2011-022463
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
December 24, 2015
          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           R.D. Maynard, Chairman          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Industrial Commission assigned the above-entitled matter to Referee LaDawn Marsters who conducted a hearing in Boise on August 14, 2014. Clinton Miner represented Claimant. Joseph Wager represented Defendants. The parties presented oral and documentary evidence. After an extended period, post-hearing depositions were taken. The parties submitted briefs after repeated deadline extensions. Referee Marsters recently left the Industrial Commission. The case came under advisement on September 15, 2015. The matter was reassigned to Referee Doug Donohue. Referee Donahue authored proposed Findings of Fact and Conclusions of Law and submitted the same, together with the record, to the Commission for its review and decision as anticipated by the provisions of Idaho Code § 72-717. Pursuant to Idaho Code § 72-506(2), the Commission is authorized, indeed, required, to approve and confirm a proposed decision before it can be deemed a finding order, decision or award of the Commission. The statute was recently construed in Lorca-Merono v. Yokes Washington Foods, Inc., 137 Idaho 446, 50 P.3d 461 (2002). There, the issue before the Commission was whether claimant's pre-existing cervical spine condition was aggravated by her industrial accident. The Referee to whom the case was assigned concluded that the most persuasive medical evidence was that endorsing a causal relationship between claimant's condition and the accident, and wrote a decision awarding benefits to claimant for her permanent aggravation. The Commission declined to adopt the proposed decision and authored its own decision in which it denied benefits based on other medical evidence of record which it found more persuasive. On appeal, claimant argued that the Commission was not authorized to "simply reject" the findings and conclusions proposed by the Referee. Treating this assertion, the Court stated:
The findings of fact made by the referee were merely recommendations to the Industrial Commission. Upon reviewing those findings, it could either adopt them or enter its own findings. Idaho Code §§ 72-506(2) & 72-717 (1999). The Commission need not explain why it did not adopt certain findings recommended by the referee. The Industrial Commission, as the factfinder, is free to determine the weight to be given to the testimony of a medical expert. (Citations omitted)
Lorca-Merono v. Yokes Washington Foods, Inc., 137 Idaho 446, 50 P.3d 461 (2002).          Here, the Commission has reviewed the proposed Findings of Fact and Conclusions of Law authored by Referee Donahue, and declines to adopt the same. As explained below, the Commission believes that this case turns on the threshold issue of whether or not Claimant has met his burden of proving, by a preponderance of the evidence, the existence of a causal relationship between the subject accident and the claimed injuries. Referee Donohue found that Claimant failed to establish a causal connection between the subject accident and the surgery recommended by Dr. Manos because Claimant was relatively symptom free for a significant period of time following his date of medical stability, and because Dr. Manos relied on an incorrect medical history in formulating his opinion on causation. While the Commission agrees with the Referee's ultimate conclusion, we arrive there by a slightly different path.          ISSUES          Per the Notice of Hearing filed June 6, 2014, the following matters are at issue:          1. Whether and to what extent Claimant is entitled to the following benefits:
a) Medical care;
b) Temporary partial and/or temporary total disability (TPD/TTD);
c) Permanent partial impairment (PPI); and
d) Disability in excess of PPI;
         2. Whether Claimant is entitled to attorney fees pursuant to Idaho Code § 72-804.          At hearing, after these issues were recited by Referee Marsters, Claimant's counsel stated his intention to withdraw the claim of an award of attorney's fees under Idaho Code § 72-804. Defense counsel then noted that the parties dispute whether Claimant is entitled to the lumbar spine fusion recommended by Dr. Manos. Defendants' counsel stated that should the Commission determine that more care is required, it is obvious that the issues of PPD cannot be reached by the Commission. This discussion does nothing to support a conclusion that the issue of Claimant's impairment and disability would be altogether deferred for a future proceeding. Rather, this colloquy only reflects that the issue of impairment and disability would not be reached only if it was determined that Claimant was in need of future medical care. However, there is additional discussion in the record which seems to reflect that Claimant's counsel (at least) assumed that the issues of impairment/disability were removed from this proceeding altogether:          Mr. Miner:
One last thing I will add into this. He is no longer working for the employer and we'll talk about that. He was discharged from the employer while doing one of his duties. They felt like he didn't do it right and he's no longer working there. He has sought additional work and we will talk about that, but I am not going to go into a lot of detail about that, because I think at this point, since we have reserved the disability aspect of this matter, we can touch on it, but leave it for a later date. Okay.
HT, 15/4-13.          This statement resulted in protest neither from Defendants' counsel nor the Referee assigned to the case. It is also notable that while Defendants' counsel contends in his opening brief that the issues of impairment and disability are before the Commission for determination, neither Defendants nor Claimant incorporated any discussion of the issues of impairment and disability in post-hearing briefing.          While we question the method by which the bifurcation of issues was accomplished in this case, it nevertheless seems to be the desire of the parties to withhold consideration of the issues of impairment and disability even if the Commission determines that Dr. Doerr's opinion should be elevated over that of Dr. Manos. Accordingly, we conclude that the issues of impairment and disability are reserved for further hearing, if necessary.          CONTENTIONS OF THE PARTIES          Claimant contends that on or about September 12, 2011, he suffered an accident giving rise to a low back injury, as the result of transferring a very large patient from a bed to a gurney. Claimant acknowledges that he had some pre-existing symptomatic low back problems prior to the date of the subject accident. However, he contends that the subject accident caused additional injury to his lumbar spine, specifically, a small annular tear at L5-S1 which permanently aggravated his low back condition. Claimant contends that as the result of the subject accident he has required and received medical treatment for his condition and that he also requires additional medical treatments, to include an L5-S1 fusion surgery, as proposed by Dr. Manos.          Defendants concede that Claimant sustained an injury of some type to his low back on September 12, 2011. (See Defendants' Response Brief, p. 2). Defendants accept responsibility for medical expenses incurred to date in connection with Claimant's treatment. However, Defendants contend that Claimant reached a point of medical stability in February of 2012, and that he is entitled to no further treatment for his lumbar spine condition. Defendants contend that Claimant has not met his burden of proving, by a preponderance of the evidence, that future surgical treatment is indicated, or if so, that the need for such future surgical treatment is causally related to the subject accident. In this regard, Defendants assert that the medical opinions auguring in favor of a conclusion that Claimant requires further medical treatment related to the subject accident are based on the faulty assumption that Claimant had no low back problems which pre-dated the subject accident.          In response, Claimant argues that his pre-injury low back problems were temporary and self-limiting, and were of a different nature altogether than the complaints from which he has suffered since the subject accident. Claimant argues that the only pre-existing objective...

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