Funke v. Atkison Logging Co. Inc., 072016 IDWC, IC 1991-744516

• Case Date: July 20, 2016
• Court: Idaho

STEVEN FUNKE, Claimant, v. ATKISON LOGGING COMPANY INC., Employer, and LIBERTY NORTHWEST INSURANCE CORPORATION, Surety, Defendants. No. IC 1991-744516 Idaho Workers Compensation Before the Industrial Commission of the state of Idaho July 20, 2016           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 Douglas A. Donohue. He conducted a hearing in Lewiston on October 21, 2015. Christopher Caldwell represented Claimant. Kent Day represented Defendants Employer and Surety. The parties presented oral and documentary evidence and later submitted briefs. The case came under advisement on May 25, 2016. The Commission has reviewed the Findings of Fact and Conclusions of Law proposed by Referee Donohue but declines to adopt the same. As developed infra, the Commission concludes that different treatment is warranted for the issues relating to intervening cause and attorney fees.          ISSUES          The following issues are to be decided at this time:

1. Whether the conditions (broken right femur in 2009 and broken left femur in 2014) for which Claimant seeks benefits are compensably linked to Claimant's June 14, 1991 industrial accident or whether they constitute subsequent intervening events;

2. Whether and to what extent Claimant is entitled to benefits for:

a) medical care, and

b) attorney fees.

         All other issues are reserved.          CONTENTIONS OF THE PARTIES          Claimant suffered a compensable accident on June 14, 1991 which resulted in total permanent disability. It left him with a burst fracture of L1, a right below-knee amputation, paraplegia, a neurogenic bowel and bladder, and without sensation below the waist. He received benefits including an ATV for mobility. While deer hunting on November 18, 2009 he fractured his right femur while getting off his ATV. Surety denied the claim. While deer hunting on December 1, 2014 he similarly fractured his left femur. Surety denied this claim as well.          Claimant contends the fractures are the direct and natural consequences of osteoporosis which arose from Claimant's paralysis caused by the compensable industrial accident. Two treating physicians have so opined. Medical Bills amount to $95,732.93. Because no physician has opined that the fractures are not relatable to the original accident, Defendants' denials of compensation were unreasonable. Claimant should be awarded attorney fees.          Defendants contend that on both occasions Claimant was riding an ATV while deer hunting. Contemporaneously made medical records support a determination that both fractures were the result of falls from his ATV. These fractures arise from independent subsequent events which are noncompensable. Claimant's decisions to go deer hunting are the proximate causes of Claimant's fractures. Surety's decision to deny compensability was reasonably based upon existing law. Attorney fees are not awardable in this instance.          EVIDENCE CONSIDERED          The record in the instant case included the following:

1. Claimant's oral testimony at hearing;

2. Claimant's exhibits 1 through 18, admitted at hearing (An exhibit 19 was proffered at hearing but not admitted without post-hearing deposition testimony of physician Vivian Moise, M.D. to provide foundation. Since Dr. Moise's deposition was not taken, exhibit 19 is not admitted.);

3. Defendants' exhibits 1 through 7; and

4. The following stipulation:

         If the Surety's claim representative was called as a witness in this matter today she would testify that the medical cost arising out of the ATV accidents/femur fractures on November 18, 2009 and December 1, 2014, were denied by the Surety/Employer based on the legal position that the ATV accidents constituted independent intervening causes breaking the chain of causation between the original work accident and the injuries Claimant received as a result of the ATV accidents.          FINDINGS OF FACT          (The issues in this matter having been bifurcated, not all medical records are addressed herein. Those addressed below are deemed most relevant to the issues at hand. No findings herein are intended to be applicable to issues not presently at issue.)          1. Claimant was injured in a compensable accident in 1991. He is totally and permanently disabled as a result. Permanent disability benefits have been and are being paid.          2. Claimant's injuries from 1991 include a below-knee amputation and paraplegia below the waist.          3. Because Claimant resides in a rural location with gravel roads, an ATV and not a motorized wheelchair was a reasonable option to provide mobility. He also uses forearm crutches, leg braces—one attached to his thigh and prosthetic leg—and other appliances to stand or walk short distances and for short periods of time.          4. Claimant has adjusted to his disability and has tried to maintain a lifestyle as active as his conditions allow. Still, as his conditions have progressed over the years, his activity has gradually diminished. His chronic pain, usually associated with prolonged sitting, has gradually increased. He described muscle atrophy and the change in appearance in his legs.          5. As his legs atrophy he has required medical care. As his chronic pain has increased he has required medical care. As infections and other complications to his conditions arise he has required medical care.          6. Claimant described in detail the complicated process required to mount or dismount his ATV. He uses his arms to raise or lower his body to successive heights. He has fashioned a board to create a shelf at about the height of the foot rest to assist mounting and dismounting. Once on the seat he uses his hands to move his leg to straddle or unstraddle his legs beside the seat. (Transcript, 50/16-52/20). He constantly wears his leg braces when out of bed, including while riding the ATV. Claimant testified that prior to the 2009 accident, he had gotten off his ATV in the manner described above at least 30 times, evidently without mishap. (Transcript, 54/9-17).          7. Using the ATV Claimant is able to hunt deer alone. His disability permit allows him to shoot from his ATV while on a road. Whenever possible he will drive his ATV as close to the downed deer as terrain allows, lower himself from the ATV, grab the winch cable, scoot on his hands and butt over to the game, scoot back, winch the deer to the ATV, throw the cable over an overhead tree branch, raise the carcass to gut it and position it on the ATV and get the meat home. On some occasions he radioed for help with the carcass. He has shot elk as well.          2009 right femur fracture          8. On the morning of November 18, 2009, Claimant awoke to find that new snow had fallen overnight. Knowing that these conditions would allow him to see fresh tracks, Claimant decided to go hunting on a 10 mile loop he frequently hunts from his ATV. The accident in question occurred after he had traveled seven miles. While crossing from one road to another via a skid trail his vehicle high centered on a small stump. He was unable to free his vehicle by manipulating the controls and so, determined that he would have to winch the vehicle off the obstacle. He got off the vehicle in the manner described above. On this occasion, however, there was brush of some type located within two to three feet of the left side of his ATV. Ordinarily, when using this exit maneuver, his legs slide out in front of him as he lowers himself to the ground. On this occasion, his legs got "hung up" in the brush and his right leg slid underneath his left knee. (Transcript, 60/23-61/22). Claimant believes that when he twisted his right leg in this fashion, he fractured his right femur. (Transcript, 60/16-22). However, he was not yet finished with extricating himself from his predicament. Claimant testified that he put his winch on "free spool" and pulled the winch cable to a tree approximately 20 feet from his ATV. He did this by scooting along on the ground with his back to his objective, pulling his legs along behind him. After attaching the winch to the tree, he scooted back to his vehicle, activated the winch, but was unable to free the vehicle. He then moved to the back of his vehicle and pushed on the rear fender in a way that freed the vehicle from the obstacle. He then remounted the vehicle in his normal fashion, and while moving...