Gormley v. South State Trailer Supply, 030416 IDWC, IC 2010-019605

• Case Date: March 04, 2016
• Court: Idaho

JERRY GORMLEY, Claimant, v. SOUTH STATE TRAILER SUPPLY, Employer, and LIBERTY NORTHWEST INSURANCE CORP., Surety, and STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendants. No. IC 2010-019605 Idaho Workers Compensation Before the Industrial Commission of the state of Idaho March 4, 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 Idaho Falls on May 13, 2015. Claimant, Jerry Gormley, was present in person and represented by Michael R. McBride, of Idaho Falls. Defendant Employer, South State Trailer Supply (Employer), and Defendant Surety, Liberty Northwest Insurance Corp., were represented by Lea L. Kear, of Boise. Defendant State of Idaho, Industrial Special Indemnity Fund (ISIF) was represented by Paul B. Rippel, of Idaho Falls. The parties presented oral and documentary evidence. One post-hearing deposition was taken and briefs were later submitted. The matter came under advisement on October 21, 2015. Referee Taylor submitted proposed findings of fact, conclusions of law to the Commission on February 3, 2016. The Commission has reviewed Referee Taylor's recommendation and disagrees with the treatment given by Referee Taylor to Claimant's pre-existing low-back impairment, the evaluation of Claimant's disability and the apportionment of Claimant's disability between his pre-existing condition and the effects of the subject accident. For these reasons, the Commission declines to adopt those portions of the recommendation with which it disagrees and substitutes its own analysis.          ISSUES          The noticed issues were narrowed at hearing and presently are:

1. The extent of Claimant's permanent partial impairment;

2. The extent of Claimant's permanent disability, including whether Claimant is permanently and totally disabled pursuant to the odd-lot doctrine or otherwise;

3. Whether the Industrial Special Indemnity Fund is liable pursuant to Idaho Code § 72-332; and

4. Apportionment under the Carey formula.

         CONTENTIONS OF THE PARTIES          Claimant sustained an industrial accident on July 28, 2010, injuring his right knee. He claims 12% whole person impairment for his knee and contends that he is totally and permanently disabled due to his industrial accident. He also asserts pre-existing lumbar spine impairment of 17 to 33% of the whole person. Claimant provides no vocational expert evidence but requests a finding of 100% or odd-lot permanent total disability.          Employer relies upon the testimony of vocational expert Mary Barros-Bailey, Ph.D., and contends that Claimant is not totally and permanently disabled but suffers a 35% permanent disability inclusive of impairment, with 9% attributable to pre-existing conditions.          ISIF asserts that Claimant is not totally and permanently disabled and that his disability is solely attributable to his final industrial accident.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The Industrial Commission legal file;

2. Claimant's Exhibits A-C and Defendants' Exhibits A-S, admitted at the hearing;

3. The testimony of Claimant and Claimant's wife, Terry Gormley, taken at hearing; and

4. The post-hearing deposition of Mary Barros-Bailey, Ph.D., CRC, taken by Defendants Employer/Surety.

         All objections posed during the deposition are overruled and all motions to strike are denied.          FINDINGS OF FACT          1. Claimant was born in 1944 and is left-handed. He resided in Idaho Falls and was 70 years old at the time of the hearing. He was raised in Wyoming until age 14 and thereafter in California where he graduated from high school in 1963.          2. Work and health history. After graduating from high school, Claimant took two semesters of college in California focusing on business administration. He was a professional surfer and speed skier. Claimant also worked as the quality control manager for Columbia Yacht, a contract administrator, and a drafting and engineer worker for Martin Decker Corporation. He moved to Idaho Falls in 1977. In Idaho Falls Claimant farmed and worked as a farm manager irrigating, plowing, drilling, and planting potatoes. In 1983, he worked for A&R Equipment building and selling large commercial agricultural equipment.          3. In approximately 1985, Claimant started his own business. He worked from his home as a sales representative of several major agricultural equipment suppliers in southeast Idaho, eight other states, and parts of Canada. He sold large agricultural equipment, including flour milling equipment, grain bins, and elevators that transferred grain to storage bins and processing plants. Claimant consulted with large processing companies including General Mills, Anheuser-Busch, Coors, and Pillsbury. He was paid commissions on sales of new and replacement equipment by the suppliers. Claimant's first project was to design and equip a $1.7 million modern feed mill in southwest Idaho. He estimated his profit at about 30%. Claimant worked approximately 25 years in large commercial agricultural equipment sales. He traveled extensively by plane and vehicle to visit clients and customers. Claimant retired due to low back problems in 2006.          4. Claimant experienced the insidious onset of low-back pain in approximately 1995. In June of 2005, he was evaluated by Lynn Stromberg, M.D., for his low-back complaints. He was eventually found to be suffering from severe degenerative lumbar disease from L2 through S1. On or about November 1, 2006, Dr. Stromberg performed L3-S1 spinal decompression and fusion. The surgery initially helped with Claimant's symptoms, but eventually his discomfort returned. (Transcript, 35/25-36/8.) At the suggestion of Dr. Stromberg, Claimant applied for Social Security disability in August of 2006. (Transcript, 64/14-24.) He testified that he was honest in all the statements he made in support of his application for Social Security disability. (Transcript, 65/5-9.) He was initially denied Social Security disability benefits, but following appeal, was found to be entitled to benefits by order dated April 23, 2007. (See Defendants' Exhibit S, 492.) Claimant's low-back problems continued. Further workup revealed significant lumbar stenosis at L2-3 and a pseudo arthrosis at L5-S1. On December 22, 2008, Claimant underwent a second lumbar spine procedure, again performed by Dr. Stromberg. He was fused at L2-3, and the pseudoarthrosis at L5-S1 was repaired. (See Defendants' Exhibit B, 122.) Claimant testified that his back felt better following the second lumbar spine surgery, but he was nevertheless left with a "gnawing ache" at the bottom of his back. (Transcript, 36/18-23.)          5. After his 2008 surgery, Claimant continued steelhead fishing, boating, and golfing. However, his golfing changed from walking 18 holes to driving 9 holes in a cart and he stopped wading to fish because he was unsure of his footing.          6. In 2009, Claimant began receiving Social Security retirement benefits.          7. In February 2009, Claimant received an unsolicited telephone call from Employer notifying him that they were opening an RV store in Idaho Falls and encouraging him to apply for employment as a retail floor sales clerk. Claimant was then 65 years old and his wife was still working. Claimant subsequently interviewed with Employer and specified that he was only interested in seasonal part-time work and that he had a 30-pound lifting restriction. Employer hired Claimant immediately and allowed him to determine his own schedule averaging four to six hours per day, 20 hours per week, and earning approximately $10.00 per hour. His duties involved retail sales of RV equipment including refrigerators, axles, wheels, awnings, and pick-nick tables. Standing on the concrete floors made his back ache after several hours. He rated his back pain at 2-3 out of 10 before work, increasing to 7-8 after working several hours. He took over-the-counter medications to manage his back pain. In spite of back pain, Claimant never missed an assigned shift for Employer. He avoided lifting air conditioners, refrigerators, trailer axels, and similar heavy items. He worked seasonally from approximately April or May until October.          8. Industrial accident and treatment. On July 28, 2010, Claimant was at work stocking shelves from a short step ladder when he fell approximately three feet and landed...