Gerdon v. Con Paulos, Inc., 040715 IDWC, IC 2008-019169

• Case Date: April 07, 2015
• Court: Idaho

JOSEPH GERDON, Claimant, v. CON PAULOS, INC., Employer, and LIBERTY NORTHWEST INSURANCE CORPORATION, Surety, Defendants. No. IC 2008-019169 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho April 7, 2015           FINDINGS OF FACT, CONCLUSION OF LAW AND RECOMMENDATION           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 September 5, 2014. Claimant was present and represented by Daniel J. Luker of Boise. Joseph M. Wager of Boise represented Employer ("Con Paulos") and Surety (collectively, "Defendants"). The parties presented oral and documentary evidence, took two post-hearing depositions and filed briefs. This matter came under advisement on March 18, 2015.          PROCEDURAL BACKGROUND AND PREVIOUS FINDINGS          A previous hearing was held in this case, on January 30, 2012, culminating in a decision issued on October 15, 2012 in which the Commission ordered that:          1. Claimant's treating physician is Dr. Marsh.          2. Claimant has proven that, as a result of his industrial accident, he suffered injuries including left ankle fracture, CRPS of the left lower extremity, L3-4 disc herniation, bilateral knee osteoarthritis, and temporary thoracic spine pain (now healed).          3. Claimant has proven that he is entitled to reimbursement for past medical care for his industrial injuries including, specifically, reimbursement for:

a. Past medical care by Dr. Marsh;

b. STARS cardiac workup by Dr. Parent;

c. December 5, 2010 urgent care and follow-up with Dr. Coughlin;

d. December 19, 2011 urgent care;

e. Physical therapy before December 2010;

f. The actual reasonable cost of Claimant's wheelchair (if not already paid by Surety), wheelchair ramps and handle bars installed in his house; and

g. Mileage reimbursement for nine roundtrips from Jerome to Boise for medical treatment, consistent with Idaho Code § 72-432(13).

         4. Claimant has failed to prove he is entitled to any additional past medical care, and any future claims for medical care incurred through the hearing date will be subject to the doctrine of res judicata.          5. Claimant has proven entitlement to future palliative medical care from Dr. Marsh, including Methadone therapy for pain relief; as well as periodic monitoring and evaluation of his left ankle, CRPS, L3-4 herniation, and bilateral knee osteoarthritis conditions.          6. Claimant has failed to prove he is entitled to future care consisting of sympathetic nerve blocks, a spinal cord stimulator, bariatric care, gym membership, a power chair, physical therapy, or psychological care or counseling.          7. Claimant has proven he suffered PPI due to the industrial accident in the amount of 13.5% of the whole person after apportioning 3.5% to his preexisting lumbar spine condition.          8. Claimant has failed to prove that he is totally and permanently disabled under the odd lot doctrine.          9. Claimant has proven he is 50% permanently partially disabled, inclusive of impairment, as a result of his industrial injuries.          10.Claimant has proven he is entitled to attorney fees for unreasonable denial of Claimant's claim for reimbursement of costs associated with consultations with Ms. Graf, nutritionist.          Thereafter, Claimant filed a Motion for Reconsideration regarding the disability findings, which was denied by Order dated February 1, 2013. This decision was not appealed and has become final.          ISSUES          By agreement of the parties, the sole issue to be decided is whether Claimant is now entitled to benefits for psychological treatment pursuant to Idaho Code § 72-451.          CONTENTIONS OF THE PARTIES          Claimant contends that he is now entitled to benefits for psychological care because his industrial injuries are the predominant cause of his depression. Defendants agree that Claimant suffers from depression and that both counseling and medication treatment are reasonable. However, they contend that Claimant's preexisting psychological deficits are equally responsible for his current mental state and, therefore, he is not entitled to benefits for psychological treatment under Idaho Code § 72-451.          OBJECTIONS          All pending objections are overruled.          EVIDENCE CONSIDERED          The record in this matter consists of the following:          1. Exhibits admitted at the hearing:

a. Claimant's Exhibits 1-6; and

b. Defendant's Exhibits 1-3;

         2. Testimony taken at the hearing from:

a. Claimant;

b. Rachel Gerdon, Claimant's wife;

c. Mickey Gerdon, Claimant's mother; and

d. Cody and Jessica Campbell, Claimant's friends; and

         3. The post-hearing deposition testimony of:

a. Daniel Marsh, M.D., taken October 9, 2014; and

b. Robert Calhoun, Ph.D., taken October 22, 2014.

         After considering all the above evidence and briefs of the parties, the Referee submits the following findings of fact and conclusions of law for review by the Commission.          FINDINGS OF FACT          BACKGROUND          1. Claimant was 36 years of age at the time of the hearing and resided in Jerome, Idaho. His preexisting medical and psychological conditions, as well as his industrial injuries and difficult recovery, are detailed in the former recommendation and order and will not be repeated here.          2. At the recent hearing, Claimant testified that he is in constant pain from his left leg crush injury. He has regular ankle swelling from walking, tripping...