Garza v. Partschannel, Inc., 042314 IDWC, IC 2008-017549

• Case Date: April 23, 2014
• Court: Idaho

MANUEL GARZA, Claimant, v. PARTSCHANNEL, INC., Employer, and AMERICAN HOME ASSURANCE, Surety, and STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Surety, Defendants. No. IC 2008-017549 Idaho Workers Compensation Before the Industrial Commission of the state of Idaho April 23, 2014           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           Thomas P. Baskin, 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 Boise on December 18, 2012. Daniel Luker represented Claimant. Alan Hull represented Defendants Employer and Surety. Kenneth Mallea represented Defendant ISIF. The parties presented oral and documentary evidence. After a lengthy period for posthearing depositions, they submitted briefs. The case came under advisement on December 11, 2013. This matter is now ready for decision. 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.          ISSUES          The issues to be decided according to the Notice of Hearing are:          1. Whether and to what extent Claimant is entitled to benefits for:

a. Temporary disability,

b. Permanent partial impairment (PPI),

c. Permanent disability (including 100% total), and

d. Medical care;

         2. Whether Claimant is permanently and totally disabled under the odd-lot doctrine;          3. Whether ISIF is liable under Idaho Code § 72-332; and          4. Defendants' respective liability upon apportionment under Carey.          CONTENTIONS OF THE PARTIES          Claimant contends he is totally and permanently disabled, either 100% or as an odd-lot worker as a result of a compensable back injury in May 2008 and compensable complications, including the need for a spinal cord stimulator. He suffered a compensable injury in an industrial accident on May 19, 2008 which required L4-5 surgery. After a recurrent herniation and a second L4-5 surgery, Claimant suffered lingering problems. He was being evaluated for a spinal cord stimulator when he suffered an intervening L3-4 injury (the "baby gate" incident). The spinal stimulator was reasonable under the Sprague criteria. Surety is liable for unpaid medical care, including required travel. MMI occurred about December 5, 2011, not September 25, 2009 and Claimant is owed temporary disability benefits. Despite having tried to work, Claimant is totally and permanently disabled. His preexisting back condition, together with diabetes, other conditions, and preexisting injuries to his hip and ankle combine to make ISIF liable as well.          Employer and Surety contend Claimant's compensable injury involves L4-5 but does not involve subsequent injury to L3-4 with its attendant need for a spinal cord stimulator. All relevant medical care and temporary disability has been paid. Claimant was found to be at MMI on September 25, 2009, assigned a 7% whole person PPI, and released to medium-duty work. After the May 2008 industrial accident, Claimant actually worked for Employer until the August 2008 surgery and remained on the payroll through January 2011. From June 2008 to January 2010 Claimant worked for Job Corps. This employment terminated, not because of Claimant's injury or condition but because the position was eliminated. Claimant was a self-employed automobile restorer with significant earning from that as well. Claimant was capable of working when he suffered the baby gate incident in May 2010. Having been denied his application for Social Security Disability before this incident, Claimant in September 2011 was granted SSD benefits for conditions including depression, diabetes, hypertension, degenerative disc disease with chronic pain syndrome, and obesity. Claimant is not totally and permanently disabled under the 100% standard or under the odd-lot standard.          Surety contends that if he is deemed totally and permanently disabled, disability should be properly assigned to the baby gate incident. If he is deemed totally and permanently disabled before that incident, disability should be properly apportioned in appropriate amount to ISIF, leaving Employer liable for no more than 30.43%.          ISIF contends Claimant is not totally and permanently disabled under either standard. If he is deemed to be totally and permanently disabled, he does not meet any of the prerequisites demanded by Idaho Code § 72-332. These preclude ISIF liability.          EVIDENCE CONSIDERED          The record in the instant case included the following:          1. Oral testimony at hearing of Claimant and his wife;          2. Joint exhibits 1 through 58, to the extent admitted at hearing (a written report of sub rosa surveillance, pages 2215 A-D of exhibit 45 were not admitted); and          3. Post-hearing depositions of neuropsychologist Robert Calhoun, Ph.D., of neurosurgeons Barry Birch, M.D., Paul Montalbano, M.D., and Tyler Frizzell, M.D., of physiatrist Rodde Cox, M.D., and of vocational experts Douglas Crum, Bill Jordan, and Barbara Nelson.          All objections made in depositions are overruled, except Defendants' objection on pages 19 and 20 of Barbara Nelson's deposition is sustained and her related testimony is not taken as a physician's opinion; because such testimony is not given any weight as a medical opinion but rather serves to show Ms. Nelson's analysis in reaching her opinions, Defendants' accompanying motion to strike is denied.          FINDINGS OF FACT          The Accident          1. Claimant worked for Employer delivering after market automobile parts to autobody shops, car dealerships, and scrapyard/retail parts places. The weight of parts varied greatly from very light to over 200 pounds.          2. On May 19, 2008 Claimant was on the ground unloading a heavy box—bumpers or hoods—from a semitrailer. Its weight shifted, bent him backwards, and he knew he had injured his back. He notified Employer immediately, but finished the shift. He telephoned his physician from his home that evening.          3. On succeeding days Claimant continued to work despite back pain from this accident. By August he had stopped working because activity increased his pain.          2008 Medical Care          4. On May 22 a lumbar MRI showed a herniated L4-5 disc impinging the spinal canal, worse on the left. Evidence of degenerative disease at L4-5 and L5-S1 was consistent with a prior MRI taken in September 1995. Fred Fender, M.D., recommended referral to a neurosurgeon.          5. D. Peter Reedy, M.D., first saw Claimant on June 30, 2008. After extensive examination and evaluation of diagnostic imaging studies, he recommended surgery.          6. On August 11 Dr. Fender opined Claimant's condition was caused by the industrial accident and that his preexisting osteoarthritis was distinct and noncontributory to the disc herniation.          7. On August 27 Dr. Reedy performed a left L4-5 partial hemi-laminectomy and discectomy.          8. Claimant was recovering well until late October when he reherniated the disc arising from a toilet. A November 24 MRI confirmed the reherniation at L4-5.          9. On December 26 Dr. Reedy performed a "re-do" at L4-5.          Medical care: 2009 through April 2010          10. On February 10, 2009, oral surgeon J. Brett Comstock, DDS, opined regarding a right mandible infection, "I believe that his [mandible] got secondarily infected due to his diabetes after being traumatized with a laryngoscope [during back surgery].          11. Dr. Reedy performed follow-up visits as Claimant recovered from back surgery. Claimant's recovery after the second back surgery was slower than after the first. By March 6, 2009, Dr. Reedy characterized Claimant's condition as "mechanical sounding back pain." An April 9, 2009 MRI was consistent with prior imaging and showed increased scar tissue in the surgical area which may have been affecting the left L5 nerve root. Dr. Reedy did not recommend additional surgery. He considered Claimant a "terrible" candidate for a fusion. He recommended physical therapy and work hardening; he referred Claimant to Michael McMartin, M.D., for that.          12. Claimant visited Dr. Fender on March 2, 2009 for a sore chest wall after an illness left him with an aggressive cough. Although Dr. Fender diagnosed a rib...