Hackman v. CHS, Inc., 081318 IDWC, IC 2016-029879

• Case Date: August 13, 2018
• Court: Idaho

PAUL HACKMAN, Claimant, v. CHS, INC., Employer, and OLD REPUBLIC INSURANCE COMPANY, Surety, Defendants. No. IC 2016-029879 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho August 13, 2018           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           Thomas E. Limbaugh, Chairman.          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee John C. Hummel, who conducted an emergency hearing in Pocatello on February 22, 2018. Patrick N. George and Fred J. Lewis represented Claimant Paul Hackman, who appeared in person. Jamie K. Moon represented Defendant Employer, CHS, Inc., and Defendant Surety, Old Republic Insurance Company. The parties presented oral and documentary evidence, took post-hearing depositions, and submitted briefs. The matter came under advisement on July 3, 2018. The undersigned Commissioners have chosen not to adopt the Referee’s recommendation in order to give different treatment to the issue of Claimant’s entitlement to temporary disability benefits, and hereby issue their own findings of fact, conclusions of law, and order.          ISSUES          The issues to be decided by the Commission as the result of the hearing are as follows:          1. Whether and to what extent Claimant is entitled to the following benefits:

a. Medical care; and

b. Temporary partial and/or temporary total disability benefits;

         2. Whether Claimant has engaged in unsanitary or unreasonable practices that tend to imperil or retard his recovery, pursuant to Idaho Code § 72-435; and          3. Whether Claimant is entitled to attorney fees pursuant to Idaho Code § 72-804.          INTRODUCTION          Claimant was injured in an industrial accident while working as a truck driver for Employer on June 30, 2016. He was attempting to open a defective valve on his truck to unload propane by swinging a hammer to loosen the valve. In the process of wresting the valve open, he injured his back. After an independent medical examination (IME) by Lynn Stromberg, M.D., who approved treatment, Claimant received a discectomy procedure at L4-L5 performed by Steven Hansen, M.D. Both doctors and Surety knew Claimant was a pack-a-day smoker prior to the procedure. Although the surgery was without complications, Claimant continued to have symptoms. Dr. Hansen recommended surgery at the L5-S1 level and, depending upon the results of that surgery, a second surgery to implant a spinal cord stimulator. Surety then scheduled Claimant for an IME with another doctor, Matthew Drake, M.D. Dr. Drake determined that all surgical treatment for Claimant’s back, including the first surgery, was not industrially-related. Surety denied further treatment and benefits. Claimant then filed a motion for an emergency hearing. At a telephone conference, the parties agreed to resolve their difference based upon an apparent stipulation that an MRI and surgery would be covered. Surety then raised an issue concerning Claimant’s smoking; while it approved an MRI, Surety refused to approve further back surgery unless Claimant ceased smoking. Claimant filed another motion for an emergency hearing, which the Referee granted.          CONTENTIONS OF THE PARTIES          Claimant alleges that his physician’s request for additional lumbar surgery is reasonable. He further alleges that Defendant agreed to additional surgery and then unreasonably denied it based upon the smoking issue. Claimant further alleges that Dr. Drake is a hand surgeon who was lesser qualified to render an opinion on the reasonableness of his treatment. He also argues that his smoking habit is not a legitimate basis upon which to deny him lumbar surgery. Claimant argues that he is entitled not only to the requested surgical treatment and related care, but also continued temporary disability benefits and attorney fees for unreasonable delay and denial of medical treatment.          Defendants acknowledge Claimant is otherwise entitled to further lumbar surgery but argue that it is not compensable as long as he continues to smoke. They claim that it is medically unreasonable for a patient who smokes to undergo a significant spinal orthopedic procedure due to risk of an inferior surgical outcome, higher rate of a surgical infection, longer recovery time, and a higher rate of the need for additional surgeries. They allege that Dr. Drake’s opinion on these matters is reasonable and entitled to greater weight. Further, they argue that Claimant’s own surgeon agrees that Claimant’s smoking is problematic. With regard to temporary disability benefits, Defendants argue that Claimant is medically stable unless he undergoes surgery, thus he is not entitled to further temporary disability benefits. Finally, Defendants argue that they have reasonably adjusted Claimant’s claim, particularly with regard to the reasonableness of his proposed surgery and the smoking issue, and thus they are not liable for attorney fees.          EVIDENCE CONSIDERED          The record in this matter consists of the following:          1. The testimony of Claimant taken at hearing and at his deposition held on February 8, 2018;          2. Joint Exhibits 1 through 35, admitted at the hearing.          3. The deposition transcripts of the following witnesses:

a. Stephen Hansen, M.D., taken on February 8, 2018; and

b. Matthew Drake, M.D., taken on March 12, 2018.

         FINDINGS OF FACT          1. Claimant’s Background. Claimant was born on December 30, 1954. Claimant Dep., 11:21-22. He graduated from Idaho Falls High School in 1973. Tr., 84:13-16. He did not pursue any formal education beyond high school. Id. at 17-19.          2. After high school, Claimant pursued a trucking career. His 40-year working career was in the trucking and construction industries, apart from the farm work he performed growing up and working in a potato warehouse immediately after high school. Claimant operated many different kinds of commercial vehicles including long-distance trucks, loaders, asphalt trucks, and construction machinery. Id. at 118:22-119:17; Claimant Dep., 23:5-16; Ex. 5:15.          3. Claimant began smoking when he was a sophomore in high school. He quit a handful of times since then. He used various methods to quit smoking, such as Nicorette gum, nicotine patches, and Chantix, but always resumed smoking. Tr., 120:9-121:10.          4. Prior Medical History. Prior to the industrial accident, Claimant sought treatment by a chiropractor for minor back complaints, elbow problems, and similar issues. He never had a significant injury to his back or hip prior to the industrial accident. Prior to the operation he received after the industrial accident, Claimant had not had any surgeries. He broke a bone in his wrist in 2007 and dislocated his elbow in the 1990s; neither accident was work-related. Claimant also received long-term treatment for anxiety and depression with an SSRI anti-depressant prescription. Tr., 117:3-118:11; Claimant Dep., 24:3-22, 26:7-10; Ex. 5:17; Ex. 17:243.          5. In 2015 and 2016, prior to the industrial accident, Claimant sought chiropractic treatment at the Bowman Chiropractic Clinic in Soda Springs. Wesley A. Bowman, DC, examined him and performed spinal adjustments for his complaints of “pain, soreness, tenderness and stiffness” in his lower thoracic, lumbar, left sacroiliac, left pelvic, right sacroiliac, and right pelvic regions. These chiropractic visits occurred on July 6, 2015, and on February 9, February 16, and June 6, 2016. Dr. Bowman diagnosed Claimant with lumbar subluxation, lumbar radiculopathy, pelvic subluxation, and sciatica. Ex. 14:166-170.          6. Subject Employment. Employer hired Claimant as a truck driver on February 20, 2015. Ex. 1:1. His duties included driving, loading, and unloading a propane truck. Ex. 5:15.          7. Industrial Accident. On June 30, 2016, Claimant was attempting to release a large, defective gate valve on a propane truck at a propane storage facility in Granger, Wyoming. He attempted for twenty minutes to open the valve, which was stuck. Claimant leaned over and twisted the valve, which was two feet inside the trailer, by attempting to “muscle” it. When the valve suddenly became unstuck, he felt the energy transfer to his body and an immediate and sharp pain in his back, left hip, and left leg. Claimant’s pain was severe enough that he had trouble walking after the accident. Tr., 87:15- 91:8; Claimant Dep., 27:9-30:25; Ex. 1:1; Ex. 2:2; Ex. 5:13. ...