1996 IIC 1126
Deuel, Elden D.
Universal Frozen Foods
Self-insured
94-883524
Idaho Workers Compensation
Before The Industrial Commission Of The State Of Idaho
November 5, 1996
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND PROPOSED
ORDER
INTRODUCTION
The
Industrial Commission, pursuant to Idaho Code, Section
72-506, assigned the above-entitled case to Referee Peggy
McMahon who conducted a hearing in Twin Falls, Idaho, on
February 13, 1996. Claimant was present and represented by
Michael Felton, Sr., of the Buhl firm of Felton & Felton.
Thomas P. Baskin of the Boise firm of Moore, Baskin & Parker
represented Defendant Employer. Oral and documentary evidence
was presented at hearing and during post-hearing depositions.
The matter has been briefed and came under advisement on May
14, 1996.
ISSUES
The
issues presented are:
1. The
extent of Claimant’s permanent physical impairment related to
his low-back condition;
2. The
extent of Claimant disability; and, 3. Whether disability
benefits should be apportioned.
EVIDENCE
CONSIDERED
The
evidence considered is as follows:
1. Oral
testimony of Claimant Elden D. Deuel, James Spooner, Lee
Harmon and Helen Wagner presented at hearing;
2.
Exhibits 1, 3 through 6, 8 through 11, 13, 14 and A through Q
admitted at hearing; Exhibit R admitted by Order on March 25,
1996; and, 3. The post-hearing depositions of: Richard
Knoebel, M.D. (March 5, 1996), Lee Barton (March 12, 1996),
Robert Burton, M.D. (March 12, 1996) and William May, M.D.
(March 28, 1996).
Having
considered the record established in the case and the
arguments of counsel submitted in their briefs, Referee Peggy
McMahon submits the following Findings of Fact, Conclusions
of Law and Proposed Order which she recommends the Commission
adopt as its decision and Order.
FINDINGS
OF FACT
Background
I
Claimant
Elden D. Deuel was born on August 7, 1946. He has been
divorced twice and lives in Twin Falls, Idaho . Claimant
worked for Defendant Employer Universal Frozen Foods
(Universal) from December 5, 1990, to July 28, 1995, doing
Grade 3 heavy-duty food processing work. This included
cleaning up and lifting heavy items in the plant. He
presently has moderate-to-severe low-back pain radiating into
his left hip and leg and sometimes into his calf and foot and
burning pins and needles in his low back. It is aggravated by
standing, driving and climbing stairs.
II
In
1982, Claimant had an industrial lifting injury to his low
back. He received some chiropractic treatments and felt
capable of returning to work after two months. In 1993,
Claimant was involved in three accidents within a year: a car
accident and two industrial accidents. On April 9, 1993, the
car in which he was riding was struck from the rear. On July
26, 1993, Claimant slipped on some steps at work and fell
backwards. This caused low-back pain. Finally, on August 29,
1993, Claimant fell and hit the left side of his lower back
while stepping from one level of a catwalk to another. About
a year later, he suffered the industrial accident at issue in
this case.
III
Dr.
Charles Porter, D.C., treated Claimant’s neck and lower back
from April 9, 1993, to November 23, 1993. Claimant’s symptoms
from the car accident began slowly and, as of his last
treatment -- which spanned the time he experienced two
industrial accidents -- he was experiencing constant neck
pain and soreness with a headache and intermittent low-back
pain.
Dr.
Porter diagnosed cervical intersegmental dysfunction,
paraspinal muscle spasms, lumbar intersegmental dysfunction
and paraspinal muscle spasms. Prior to August 29, 1993, Dr.
Porter treated Claimant for low-back and left buttock
pain.1 After the August 29, 1993, accident,
Claimant continued receiving treatment for his lower back. As
of November 19, 1993, Claimant felt his low back was better
even though he still had intermittent pain.
IV
Claimant
testified that he was fine before July 28, 1994. Since then,
he reports that his condition has worsened with time.
Claimant also has high blood pressure. He developed diabetes
and a left shoulder problem after July 28, 1994. They are
unrelated to his industrial injury.
Accident
and Injury and Course of Treatment
V
On July
28, 1994, Claimant developed a painful back after picking up,
carrying and dumping some buckets of oil for about an hour.
They weighed approximately 37 pounds each. Immediately
thereafter, he had difficulty bending, twisting, walking and
going down stairs. Later that day he developed severe
low-back pain which radiated into his left buttock and down
the left leg to his calf. The plant nurse observed that he
walked with a limp on his left side. The 28th was Claimant’s
last day of work at Universal because he felt the pain was
too severe and he was concerned about reinjury.
VI
Claimant
saw Dr. Thomas Bundy on July 28, 1994. Dr. Bundy diagnosed
back strain with possible left sciatica and mildly severe
pain. He took Claimant off work and prescribed physical
therapy. Because Claimant’s back and leg pain were not
getting better, Dr. Bundy referred him to Dr. William May, an
orthopedic surgeon.
VII
Dr. May
examined Claimant on September 13, 1994. Subsequent imaging
studies show that Claimant has mild degenerative disc disease
with annular disc bulging at the L3-4, L4-5 and L5-S1 levels
and mild hypertrophic degenerative changes of the facet
joints without evidence of focal disc protrusion, herniation
or impingement on the thecal sac. Testing by the majority of
physicians indicates that Claimant suffers no radiculopathy
secondary to nerve root impingement. The Referee so finds.
VIII
Dr. May
concluded that Claimant’s pain was musculoskeletal in nature.
He believed that Claimant could return to his previous
employment level, but should not do so until he went through
an aggressive physical therapy and work-hardening program.
Claimant was deconditioned and overweight. (He weighed about
300 pounds and is 5’10" tall.)
IX
Claimant
participated in the WorkFit Program through the Elks
Rehabilitation Hospital in Boise for three weeks, ending
December 2, 1994. When he began the program he was diagnosed
as having chronic lumbar pain, degenerative lumbar disc
disease and obesity. He walked with a mildly antalgic limp on
the left side. Claimant was also depressed and had problems
sleeping. Claimant’s left shoulder and high blood pressure
problems were present but are unrelated to his industrial
injury.
X
Michael
McClay, Ph.D., a psychologist at the WorkFit program, learned
that Claimant had been ruminating about his recent divorce
from his second wife. (Claimant testified that he was married
in 1991 and divorced a year or two later.) Dr. McClay
concluded that Claimant was significantly depressed because
of that and other personal problems. He also opined that
Claimant appeared to have a very difficult time concentrating
and focusing for any period of time. Dr. McClay further
concluded that Claimant’s sleep disorder was secondary to his
industrial injury and was exacerbating his condition. He
finally concluded that these conditions represented a
significant barrier to successful rehabilitation. Claimant
was prescribed medication to alleviate pain and to help him
sleep. He still complains of sleep loss.
XI
WorkFit
team concluded on December 2, 1994, that Claimant had made
some moderate progress in his functional capacity and
abilities. Claimant believed the WorkFit Program helped his
upper body but did not help his lower back and legs. When
Claimant was discharged from the WorkFit Program on December
2, 1994, Dr. Weiss reported that Claimant could not return to
his time-of-injury job.
XII
Dr.
Weiss restricted Claimant from lifting more than 50 pounds;
lifting 25 pounds frequently; and prolonged exposure to
vibration. He also concluded that Claimant needed to be able
to...
