KELLY EDENS, Claimant,
v.
BRUNDAGE-BONE CONCRETE PUMPING, Employer,
and
LIBERTY MUTUAL INSURANCE CORPORATION, Surety,
and
BERKSHIRE HATHAWAY HOMESTATE INSURANCE COMPANY, Surety, Defendants.
Nos. IC 2008-035062, 2014-004950, 2014-011138
Idaho Workers Compensation
Before the Industrial Commission of the state of Idaho
June 7, 2016
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
ORDER
R.D.
Maynard, Chairman
INTRODUCTION
Pursuant
to Idaho Code § 72-506, the Idaho Industrial Commission
assigned the above-entitled matter to Referee LaDawn
Marsters, who conducted a hearing in Boise on November 19,
2014. Daniel J. Luker represented Claimant Kelly Edens.
Joseph M. Wager represented Employer Brundage-Bone Concrete
Plumbing ("Brundage-Bone") and Surety Liberty
Mutual Insurance Corp. ("Liberty"). Nathan T. Gamel
represented Employer Brundage-Bone and Surety Berkshire
Hathaway Homestate Insurance Company ("Berkshire").
The Referee admitted oral and documentary evidence at the
hearing. The parties took post-hearing depositions. On July
9, 2015, Referee Marsters granted Claimant's motion to
receive additional evidence regarding his right shoulder
condition and scheduled a second hearing. Prior to the second
hearing, Referee Marsters left the Commission. The Commission
reassigned the matter to Referee Alan Taylor, who conducted a
hearing in Boise on September 18, 2015. The same legal
counsel represented the parties at the second hearing. The
Referee admitted additional oral and documentary evidence
into the record. The parties took additional post-hearing
depositions and submitted post-hearing briefs. The matter
came under advisement on March 8, 2016. The undersigned
Commissioners have chosen not to adopt the Referee's
recommendation and hereby issue their own findings of fact,
conclusions of law and order. The Commissioners agree with
the Referee's proposed outcome, but give slightly
different treatment to the question of whether the risk of
injury to which Claimant was exposed was "characteristic
of and peculiar to" his employment.
ISSUES
The
issues to be decided are as follows:
1.
Whether the condition for which Claimant seeks benefits was
caused by the 2008 industrial accident, the result of work
activity in 2014, neither, or some combination of both;
2.
Whether Claimant incurred a compensable occupational disease;
3.
Whether Claimant's condition is due in whole or in part
to a preexisting injury/condition;
4.
Whether and to what extent Claimant is entitled to the
following benefits:
a.
Medical care; and
b.
Temporary partial and/or temporary total disability benefits
(TPD/TTD);
5.
Whether Claimant's shoulder injury is compensable,
including his entitlement to medical and temporary disability
benefits related to that injury.
6. All
other issues are reserved.
CONTENTIONS
OF THE PARTIES
On
October 27, 2008, Claimant sustained injuries while working
for Brundage-Bone on the deck of an interstate bridge that
collapsed (the "2008 industrial accident"). At the
time of the 2008 industrial accident, Liberty provided the
worker's compensation insurance coverage for
Brundage-Bone. Liberty accepted the claim, covered
Claimant's medical bills, and paid both time-loss and
impairment benefits associated with the accident. Claimant
received a release to return to work without restrictions and
he returned to work full-time for Brundage-Bone. On November
1, 2013, Berkshire became the Surety for Brundage-Bone.
Claimant continued to work for Brundage-Bone until February
10, 2014, when he had an onset of pain in his upper
extremities while unloading concrete hose line from his truck
(the "2014 industrial accident"). Claimant sought
medical treatment and has not worked for Brundage-Bone since.
Neither Surety has accepted responsibility for Claimant's
medical conditions or treatment following the 2014 industrial
accident.
Claimant
alleges that his work activities on February 10, 2014
constituted a new accident resulting in the onset of
bilateral cubital tunnel syndrome ("CTS") and a
SLAP tear to his right shoulder. In the alternative, he
argues that his bilateral CTS is a compensable occupational
disease incurred as a result of his employment with
Brundage-Bone. Claimant argues that the medical treatment he
has received for both his bilateral CTS and his right
shoulder condition, which have included surgeries, are
reasonable and causally related to the 2014 industrial
accident. He asserts that Defendants are liable to pay the
full invoiced amounts of his medical bills. He further
asserts that he is entitled to temporary disability benefits
since February 10, 2014 because, as of the date of the second
hearing, he was still in a period of recovery. Finally, in
the alternative, Claimant argues that if the Commission does
not find that the 2014 industrial accident is the most
probable cause of his bilateral CTS and his right shoulder
condition, then those conditions are the result of his 2008
industrial accident and are still compensable.
Liberty
argues that Claimant has not met his burden of proving that
his bilateral CTS and right shoulder condition are causally
related to the 2008 industrial accident. Thus, Liberty argues
that it bears no financial responsibility for those
conditions and is not liable for any time loss or medical
benefits.
Berkshire
argues that there is no medical testimony demonstrating that
the 2014 industrial incident caused Claimant's bilateral
CTS. Berkshire further argues that Claimant's
occupational disease claim for bilateral CTS fails because no
physician has offered medical testimony sufficient to satisfy
the "peculiarity" element of proof necessary for a
compensable occupational disease claim. As for Claimant's
right shoulder condition, Berkshire argues that Claimant has
failed to sustain his burden of proof that it is causally
related to the 2014 industrial incident. Thus, Berkshire
argues that it bears no financial responsibility for those
conditions and it is not liable for any time loss or medical
benefits.
EVIDENCE
CONSIDERED
The
record in this matter consists of the following:
1. The
testimony of Claimant and his wife Rebecca Edens taken at the
November 19, 2014 hearing;
2. The
testimony of Claimant taken at the September 18, 2015
hearing;
3.
Claimant's Exhibits 1 – 34, Volume I
("CEI") admitted at the November 19, 2014 hearing;
4.
Claimant's Exhibits 1 – 21, Volume II
("CEII") admitted at the September 18, 2015
hearing;
5.
Defendant Berkshire's Exhibits 1 – 18
("BE") admitted at the November 19, 2014 hearing;
6.
Defendant Liberty's Exhibits 1, 2, 9, and 10
("LE") admitted at the November 19, 2014 hearing;
7. The
deposition transcript of Claimant taken on November 7, 2014;
8. The
deposition transcript of David N. Price, DC, taken on January
20, 2015;
9. The
deposition transcript of Kevin Krafft, M.D., taken on January
23, 2015;
10. The
telephonic deposition transcript of Lance LeClere, M.D.,
taken on March 19, 2015;
11. The
deposition transcript of Jeffrey G. Hessing, M.D., taken on
October 2, 2015; and
12. The
deposition transcript of Lance LeClere, M.D., taken on
October 13, 2015.
OBJECTIONS
All
pending objections are overruled, with the exception of the
objection to admission of Exhibit 1 offered by Berkshire
during the deposition of Dr. LeClere on October 13, 2015, at
page 23, lines 8 to 19. Berkshire did not provide notice of
the exhibit in compliance with Rule 10(c) of the Judicial
Rules of Practice and Procedure, nor was the exhibit in
existence at the time of hearing. The objection is sustained.
FINDINGS OF FACT
1.
Claimant's Background. Claimant was born
in 1969. He moved with his family to Idaho in 1979. He
attended high school until the ninth grade and later obtained
his GED. Prior to his work for Brundage-Bone, his employment
history consisted primarily of work in the restaurant and
construction industries. He was 46 years old, married and
resided in Nampa at the time of the second hearing.
Claimant's Dep., 20:2-21; 31:23-36:8.
2.
Brundage-Bone. Brundage-Bone operates a
concrete pumping service business. It employs concrete pump
operators who use concrete pump...
