Davis v. Gary Amoth Trucking, Inc., 042414 IDWC, IC 2012-005977

• Case Date: April 24, 2014
• Court: Idaho

LARRY GENE DAVIS, Claimant, v. GARY AMOTH TRUCKING, INC., Employer, and LIBERTY NORTHWEST INSURANCE CORPORATION, Surety, Defendants. Nos. IC 2012-005977, IC 2012-024518, IC 2013-028072, IC 2013-028073 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho April 24, 2014           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 Brian Harper, who conducted a hearing in Twin Falls, Idaho, on September 25, 2014. Claimant was represented by Dennis R. Petersen, of Idaho Falls. Joseph M. Wager, of Boise, represented Gary Amoth Trucking, Inc., ("Employer") and Liberty Northwest Insurance Corporation ("Surety"), Defendants. Oral and documentary evidence was admitted. Two post-hearing depositions were taken and the parties submitted post-hearing briefs. The matter came under advisement on March 23, 2015.           ISSUES          By agreement of the parties, the issues to be decided1 are;          1. Whether the condition for which Claimant seeks benefits was caused by one or more industrial accidents.          2. Whether and to what extent Claimant is entitled to the following benefits;

a. medical care; and

b. temporary total disability.

         3. Whether the Commission should retain jurisdiction beyond the statute of limitations.          Claimant's entitlement to permanent partial impairment, permanent partial disability, and retraining benefits are reserved.          CONTENTIONS OF THE PARTIES          Claimant filed four injury notices for various incidents occurring in 2012. The first claim was accepted by Surety and paid appropriately. The next two incidents resulted in no medical treatment, and were denied by Surety. It is the fourth incident, which occurred on September 24, 2012 which is at issue herein.          Claimant injured his low back on September 24, 2012 while lifting a tarp in the course and scope of his employment with Employer. His claim was accepted and he received medical attention. He was cleared by his treating physician to full work duties in mid-October 2012. Claimant continues to have low back symptoms, and is not at MMI. He needs further medical treatment for his low back injury, and is entitled to temporary total disability benefits for the time he has been unable to work post-accident.          Defendants argue Claimant failed to establish he is entitled to additional medical or time loss benefits. He was returned to full time work with no restrictions by Douglas Stagg, M.D. as of October 15, 2012, and declared at MMI by November 20, 2012. Brian Johns, M.D. subsequently examined Claimant and opined his current complaints are unrelated to his September 24, 2012 industrial accident.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. Claimant's testimony, taken at hearing;

2. Claimant's Exhibits (CE) A through Z, admitted at hearing;

3. Defendants' Exhibits (DE) 1 through 16, admitted at hearing;

4. The post-hearing deposition transcript of James H. Bates, M.D., taken on November 18, 2014; and

6. The post-hearing deposition transcript of Brian A. Johns, M.D., taken on December 9, 2014.

         Having considered the evidence and 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. At the time of hearing, Claimant was fifty nine years old and living in Twin Falls, Idaho. Since January 2014, he has been on Social Security Disability. His last employment ended on November 6, 2012. Since 1986, Claimant has been a truck driver.          2. Claimant has a history of low back injuries dating back to at least 1998 or 1999. None of those injuries precluded him from returning to truck driving after a period of recovery.           3. In approximately May of 2010, Claimant began working for Gary Amoth Trucking (Employer) as an over-the-road truck driver.          4. During his tenure with Employer, Claimant suffered four mishaps which led to worker's compensation claims. This decision centers around his fourth incident, IIC claim no. 2012-024518.          5. On September 24, 2012, Claimant experienced pain in his lower back toward the middle and right side as he was moving tarps as part of his employment. The accident occurred in California. Although he claims he had to stop more frequently than normal due to back pain, Claimant was able to complete his route back to Idaho on September 25, 2012.^[2]          6. Employer directed Claimant to Douglas Stagg, M.D., for treatment on September 26, 2012. Dr. Stagg noted Claimant had a similar injury in 1998 which resulted in three bulging disks requiring two steroid injections. Claimant indicated he had done well since then, with only intermittent low back discomfort. Dr. Stagg diagnosed right low back strain with marked spasm and moderate left spinal list. He started Claimant on a regimen of gentle exercises, with the use of ice and heat for his low back. The doctor prescribed Ibuprofen for daytime use, and Norco and Valium as needed.          7. Over the course of the next month, Claimant saw Dr. Stagg in follow up. During his October 1 visit, Dr. Stagg recommended Claimant see Joshua Olsen, D.C., for three sessions. Claimant saw Dr. Olsen on four occasions from October 1 through October 8, 2012. By Claimant's last chiropractic visit, Dr. Olsen noted Claimant was doing much better and if careful could return to work. Claimant sought no further chiropractic treatment.          8. Claimant continued to improve. By October 8, 2012, Claimant indicated to Dr. Stagg that he was close to being ready to return to work. His spinal list was gone. He moved stiffly, but showed signs his low back strain was resolving.          9. At his October 15, 2012 office visit, Claimant indicated he was "doing great" and had no pain, just some stiffness. He moved easily and appeared comfortable. He could flex his low back to sixty degrees...