Garner v. Idaho Electric Signs, Inc., 012821 IDWC, IC 2015-013089

Case DateJanuary 28, 2021
CourtIdaho
SAMUEL D. GARNER, Claimant,
v.
IDAHO ELECTRIC SIGNS, INC., Employer,
and
IDAHO STATE INSURANCE FUND, Surety, Defendants.
No. IC 2015-013089
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
January 28, 2021
         FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           Aaron White, Chairman          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Industrial Commission assigned this matter to Referee Douglas A. Donohue who conducted a hearing in Boise on December 20, 2019. Brad Eidam represented Claimant. James Ford represented Defendants. The parties presented documentary and testimonial evidence and submitted briefs. The case came under advisement on July 7, 2020 and is ready for decision. The undersigned Commissioners have reviewed the proposed decision and conclude that different treatment is warranted on the issue of whether Claimant is employed by a sympathetic employer, and the extent and degree of Claimant’s disability, including whether he is an odd-lot worker. Accordingly, the Commission declines to adopt the proposed decision and issues these findings of fact, conclusions of law and order.          ISSUES          The issues to be decided as amended at hearing are:
1. Whether and to what extent Claimant is entitled to PPD, including total and permanent disability;
2. Whether Claimant is totally and permanently disabled as an odd-lot worker; and
3. Whether apportionment for a pre-existing condition is appropriate under Idaho Code §72-406.
         CONTENTIONS OF THE PARTIES          Claimant Samuel “Derrick” Garner injured his left thumb in a reciprocating saw on May 13, 2015. He contends that the resultant crush injury developed into Chronic Regional Pain Syndrome (CRPS). The chronic pain significantly disrupts his daily activity. Restrictions involving use of his left thumb and hand render him permanently disabled. He should be deemed an odd-lot worker based upon the “futility” factor. Claimant’s current employer should be deemed a “sympathetic employer.” Defendants failed to show an actual, available job within Claimant’s abilities. Alternatively, in the absence of a finding of total and permanent disability, Claimant should be deemed to have suffered an 80% disability, inclusive of impairment.          Defendants contend Claimant has worked full time for three and one-half years since the accident. He received TTDs from the date of surgery October 29, 2015 to December 2016. He has shown the ability to learn and perform new duties. His wage has increased from $13 at the time of injury to $16 at the time of hearing. His actual disability should be rated about 28% to 34%, inclusive of 11% impairment. He is not an odd-lot worker. Claimant has a fifty-pound lifting restriction from a low back injury in the 1990s. Apportionment is appropriate under Idaho Code § 72-406.          EVIDENCE CONSIDERED          The record in the instant case included the following:
1. Oral testimony at hearing of Claimant, Employer’s owner Rick Barry, and Employer’s office manager Jody Bertwell;
2. Joint Exhibits (“JE”) 1 through 40, admitted at hearing, and JE 41, offered later and admitted at this time; and
3. Post-hearing depositions of hand surgeon Robert Hansen, M.D, and physiatrist Vic Kadyan, M.D., and vocational experts Nancy Collins, Ph.D. and William Jordan.
         All objections raised in post-hearing depositions are OVERRULED, except Defendants’ objections at pages 85 through 94 of Dr. Collins’ deposition are SUSTAINED.          FINDINGS OF FACT          1. Claimant had been employed by Employer since 2013 as an apprentice sign installer. He drove trucks and installed signs. This accident occurred about the time he was ready to test for journeyman certification. He did not test.          Medical Care: 2015          2. Working within the course and scope of his employment on May 13, 2015, Claimant injured his left thumb when it was caught and crushed in the mechanism of a reciprocating saw. Immediate medical care consisted of cleaning and splinting the thumb as well as providing temporary pain relief. After follow-up visits, Cory Huffine, FNP, released Claimant to return to work, modified duty, and restricted against gripping or lifting with his left hand. On May 29, Nurse Huffine restricted Claimant from any left-hand use.          3. After conservative medical care, the treating physician recommended Claimant visit a hand specialist. Claimant visited hand surgeon Robert Hansen, M.D. on June 2. Dr. Hansen confirmed the temporary restriction against left hand use. On subsequent visits to Dr. Hansen, Claimant was sometimes seen by Dr. Hansen’s PA, Hodaka Abe.          4. As early as June 10, Dr. Hansen expressed concern about hypersensitivity and the potential for CRPS. Dr. Hansen and St. Alphonsus rehabilitation unit (STARS) began working with Claimant on desensitization and mobility exercises. Over the next four months or so, and as a result of significant time and attention from therapists, Claimant made modest improvement.          5. A September X-ray showed the “distal phalanx has reconstituted and healed to a significant degree.” Claimant reported continuing joint pain. By the end of September, Dr. Hansen revised Claimant’s temporary restriction to “limited” left-hand use.          6. An October 7 MRI showed a metallic foreign body in the thumb. Surgery was recommended to remove it and to explore the injury. Claimant was taken back off work temporarily.          7. On October 29, Dr. Hansen excised bone fragments and a “long, thin, metallic” foreign body. He performed a tenolysis of the flexor pollicis tendon of Claimant’s left thumb.          8. On December 30, Dr. Hansen diagnosed CRPS. He reported the presence of all usual signs of CRPS except hair loss at the site. There is no indication whether Claimant’s thumb was formerly hairy. A nerve block was performed.          Medical Care: 2016          9. ICRD case notes begin January 6. An initial interview with Claimant was conducted on January 27 by Megan Brown. Return to light-duty work began to be seriously considered by early December. Shortly after, on December 7, Ken Halcomb began assisting Claimant. ICRD records show Claimant returned to light-duty work for Employer on December 19. ICRD involvement continued as Claimant was not yet medically stable. The final ICRD note is dated February 27, 2019.          10. On January 25, Claimant began treating with Michael Sant, M.D. Differential diagnoses included CRPS versus neuropathic pain.          11. On January 27, signs of carpal tunnel syndrome were observed by Dr. Hansen. Warmth had returned to the thumb, but exquisite hypersensitivity remained.          12. A March 1 bone scan and a nerve conduction study showed consistent indicators of carpal tunnel syndrome. (Dr. Sant reported right [sic] carpal tunnel syndrome where testing was directed at and found positive on left.) Also, the bone scan indicated CRPS was more likely than neuropathic pain.          13. On April 11, a left C6 stellate ganglion block was performed. Others followed on May 18 and 23 as well as on December 28. Dr. Sant reported no improvement.          14. A repeat MRI on May 6 showed a possible micro-metallic artifact and expected surgical changes.          15. A carpal tunnel release and thumb debridement was performed on August 4. Claimant recovered slowly. His CRPS did not improve.          16. On September 7, Dr. Hansen prescribed another round of physical therapy.          17. On October 20, Dr. Hansen performed a nerve block and removed surgical pins from Claimant’s left thumb.          18. On November 16, Dr. Hansen released Claimant to light duty but still allowed no left-hand use. By December 14, Dr. Hansen modified the release to allow limited left-hand use but no forceful gripping or twisting or tool use.          Medical Care: 2017          19. On January 4, Vic Kadyan, M.D. performed a forensic examination at Surety’s request. He reviewed records from the date of the accident forward. He took a history from Claimant and his wife. He examined Claimant and documented physical signs of CRPS. He opined Claimant had not reached medical stability. He agreed with the treating physicians’ diagnoses including CRPS. He recommended more physical therapy. He addressed Claimant’s “mood disorder.” Situational depression complicates Claimant’s physical picture. He recommended...

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