George v. Sears, 072016 IDWC, IC 2014-008780

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

JOSEPH GEORGE, Claimant, v. SEARS, Employer, and INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Surety, Defendants. No. IC 2014-008780 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 Idaho Industrial Commission assigned the above-entitled matter to Referee Alan Taylor, who conducted a hearing in Coeur d'Alene on December 1, 2015. Claimant, Joseph George, was present in person and represented by Richard Whitehead, of Coeur d'Alene. Defendant Employer, Sears, and Defendant Surety, Indemnity Insurance Company of North America, were represented by Eric S. Bailey, of Boise. The parties presented oral and documentary evidence. One post-hearing deposition was taken and briefs were later submitted. The matter came under advisement on March 31, 2016. The Commission has reviewed the Findings of Fact and Conclusions of Law proposed by Referee Taylor, and largely agrees with his analysis and proposed outcome, but nevertheless declines to adopt the same. As developed infra, the Commission concludes that further treatment is warranted of issues related to Neel v. Western Construction, Inc., 147 Idaho 146, 206 P.3d 852 (2009).          ISSUES          The issues to be decided are:

1. Claimant's entitlement to medical care due to his industrial accident;

2. Claimant's entitlement to temporary disability benefits due to his industrial accident; and 3. Claimant's entitlement to permanent partial impairment benefits. All other issues are reserved.1

         CONTENTIONS OF THE PARTIES          Claimant suffered an industrial accident on March 22, 2014, when he lifted a tire while working for Sears. Defendants accepted the claim and provided benefits until neurosurgeon Jeffrey Larson, M.D., concluded Claimant required lumbar surgery, whereupon Defendants denied further responsibility, asserting Claimant's need for surgery was due to his pre-existing pars defect rather than his industrial accident. Claimant underwent lumbar surgery in June 2015. He seeks further medical benefits for his lumbar surgery, temporary disability benefits during his recovery from surgery, and permanent impairment benefits.          Defendants acknowledge Claimant's industrial accident but assert that the accident caused only a temporary aggravation of his pre-existing condition. They maintain Claimant has received all appropriate benefits and that his persisting symptoms are due to the natural progression of his pre-existing condition.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The Industrial Commission legal file;

2. The pre-hearing deposition testimony of Jeffrey Larson, M.D., taken by Claimant on November 23, 2015;

3. The testimony of Claimant and Cathy George taken at the hearing;

4. Claimant's Exhibits A through W admitted at the hearing;

5. Defendants' Exhibits 1 through 15 admitted at the hearing; and

6. The post-hearing deposition testimony of Michael Ludwig, M.D., taken by Claimant on December 9, 2015.

         FINDINGS OF FACT          1. Claimant was born in 1985. He was 30 years old and resided in Spirit Lake at the time of the hearing.          2. Background. Claimant was raised in Kuna where as a youth he participated in dirt bike and motorcycle riding, wrestling, basketball, football and Boy Scouts. At a young age he was diagnosed with paramyotonia congenita, a genetic muscle disorder causing temporary loss of hand and calf muscle strength in cold weather as triggered by cold weather and inadequate nutrition. The disorder never precluded Claimant from any of his usual rigorous physical activities and his coaches were never even aware Claimant had this disorder. Claimant had no low back problems that hampered his participation in any activities.          3. Claimant's sports activities resulted in several injuries. He broke his collar bone playing football. He also broke his elbow and suffered a torn meniscus resulting in knee surgery. In each instance he recovered and resumed his usual activities. He had no back symptoms prompting medical evaluation during his high school years.          4. In approximately 2007, Claimant was hit by another car while driving and subsequently underwent chiropractic neck adjustments for one month.          5. Claimant developed an interest in auto and motorcycle mechanics and took mechanics classes in high school. He became a skilled motorcycle mechanic and never had any difficulty lifting and loading dirt bikes, tires, or other heavy items. He worked as a parts manager at Triumph. He later worked at Bowdry's Motor Sports earning $15.00 per hour plus commissions. Claimant also worked as a parts manager at Lake City Autobody.          6. In 2013, Claimant started attending classes full-time at ITT in Boise and working full-time at Les Schwab Tires. Claimant did well at Les Schwab and progressed to where he was able to perform any task in the store. He considered pursuing management training until he discovered he would have to move periodically and work in four different stores before being considered for a management position. Claimant continued attending ITT to obtain a degree and increase his earning power.           7. In late 2013, Claimant began working at the tire center at Sears in Coeur d'Alene. His starting wage was $9.00 per hour plus commission. The tire shop was heated. By March 2014, he was working full-time at the tire center and also attending ITT full-time. His estimated weekly earnings at Sears were $370.00. He also began working part-time in computer drafting through ITT.          8. Industrial accident and treatment. On March 22, 2014, Claimant was unloading tires at Sears and lifted a 35-inch tire and rim weighing at least 100 pounds out of the bed of a pickup. He twisted and set the tire down and felt immediate low back pain. It was near the end of his shift and Claimant did not then report the incident because he had the next few days off work and believed his back pain would resolve. Claimant returned to work as scheduled the following Tuesday but could not perform his usual duties due to persisting back pain. He then reported his accident to his supervisor.          9. Claimant sought medical treatment and was initially assessed with a muscle strain which was expected to resolve in a few weeks. However, lumbar x-rays revealed a pars defect.2Light-duty work assignments were difficult given his persisting back pain. He participated in physical therapy which improved muscle tone but did not resolve his back pain. On April 22, 2014, a lumbar MRI showed bilateral L5 pars defects.          10. On May 1, 2014, Claimant was examined by Michael Ludwig, M.D., who recorded Claimant's complaint of low back pain now radiating into his right buttock. Dr. Ludwig diagnosed lumbar strain with aggravation of segmental instability. Over the ensuing weeks he provided three epidural lumbar injections, which improved Claimant's back pain only temporarily.          11. On July 29, 2014, Dr. Ludwig's nurse, Lynn, spoke with Surety's adjuster, Sandra Finnegan, who authorized consultation with neurosurgeon Jeffrey Larson, M.D. Dr. Ludwig then referred Claimant to Dr. Larson.          12. In August 2014, Claimant presented to Dr. Larson who confirmed segmental instability and recommended lumbar surgery to stabilize Claimant's lumbar spine.          13. Surety scheduled Claimant for an examination by orthopedic surgeon Douglas Porter, M.D., in November 2014. After the examination, Claimant received a letter advising him of the Surety's conclusion that his continuing back symptoms were due to pre-existing conditions and declining to provide further medical treatment. Defendants denied the surgery recommended by Dr. Larson.          14. Claimant's back pain continued to render him unable to return to his usual duties at the tire center. His mother encouraged him to return to school. Claimant returned and completed his training at ITT. He graduated with his associate's degree in drafting and design from ITT in December 2014 and posted a 3.93 GPA. He then began working as a designer draftsman for Rocky Mountain Roller Coasters, with earnings substantially greater than his wages at Sears. Claimant waited to pursue the lumbar surgery Dr. Larson recommended until he qualified for coverage under his new employer's group health plan.          15. On...