Hammon v. Century AG, Inc., 042916 IDWC, IC 2013-026008

• Case Date: April 29, 2016
• Court: Idaho

THERON HAMMON, Claimant, v. CENTURY AG, INC., Employer, and IDAHO STATE INSURANCE FUND, Surety, Defendants. No. IC 2013-026008 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho April 29, 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, Theron Hammon, was present in person and represented by Dennis R. Petersen, of Idaho Falls. Defendant Employer, Century AG, Inc. (Century), and Defendant Surety, Idaho State Insurance Fund, were represented by Steven R. Fuller, of Preston. The parties presented oral and documentary evidence. Post-hearing depositions were taken and briefs were later submitted. The matter came under advisement on January 12, 2016. 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. While the Commission agrees with the majority of the Referee's proposed recommendation, the Commission concludes that the Referee inappropriately speculated as to the type of injury Claimant suffered, i.e., "likely meniscal tearing", without medical evidence. The Commission believes that the type and degree of Claimant's accident-produced injury must await further medical evaluation.          ISSUES          The issues to be decided are:1

1. Whether Claimant suffered an injury from an accident arising out of and in the course of employment;

2. Whether the condition for which Claimant seeks benefits was caused by the industrial accident or whether his condition was caused by a subsequent and/or pre-existing injury or condition;

3. Claimant's entitlement to medical care;

4. Claimant's entitlement to temporary disability benefits;

5. Claimant's entitlement to attorney fees; and

6. Whether the Commission should retain jurisdiction beyond the statute of limitations.

         CONTENTIONS OF THE PARTIES          Claimant alleges he suffered an industrial accident on August 7, 2013, while working for Century. He seeks medical and time loss benefits and an award of attorney fees. Defendants assert that Claimant's account of an accident is not credible, that his delayed reporting, delay in seeking medical treatment, and other conduct after the alleged accident indicates his account is not credible, and that he is entitled to no benefits.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The Industrial Commission legal file;

2. The pre-hearing deposition testimony of Garland Kisner and Marilyn Jensen taken by Claimant on February 13, 2015;

3. Joint Exhibits A, A1- O, admitted at hearing;

4. The testimony of Claimant, Garland Kisner, and Marilyn Jensen taken at hearing;

5. The post-hearing deposition testimony of John Andary, M.D., taken by Claimant on June 15, 2015; and

6. The post-hearing deposition testimony of Stan Griffiths, M.D., taken by Defendants on October 19, 2015.

         All pending objections are overruled.          FINDINGS OF FACT          1. Claimant was born in 1959. He was 56 years old and resided in Ririe, Idaho at the time of hearing.          2. Century is a farming and ranching enterprise. At all relevant times, Garland Kisner was the shop manager and Marilyn Jensen was the office manager at Century's business location in Ririe.          3. Background. Claimant worked at a family grocery store as a youth. He completed the 11^th grade but did not graduate from high school and never obtained a GED or any further formal education.          4. After leaving high school, Claimant performed miscellaneous jobs. In 1979, he began working for Yukon Produce stacking potato sacks on pallets. In 1985, he commenced working for A&R Metal Works where he learned welding and metal fabrication. Over the next several years Claimant worked in welding, metal fabrication, and construction for several employers.          5. In 1995, Claimant sustained a lumbar disc injury and underwent surgery. He subsequently sustained a hand injury and a wrist burn. In January 2007, he suffered another low back injury. In each instance, he recovered from these injuries and resumed working.          6. On September 28, 2011, Century hired Claimant to drive trucks for the potato harvest. He quit on November 10, 2011. Century rehired Claimant on January 16, 2012, and he worked in the shop repairing tractors and welding. Claimant voluntarily left his employment with Century on October 2, 2012. On March 6, 2013, Century rehired Claimant to work in the shop performing welding, fabrication, and repair. By August 2013, Claimant was working full­time, four ten-hour days, Monday through Thursday, each week.          7. Alleged industrial accident. On Wednesday, August 7, 2013, Claimant was working for Century welding deflector shields into place inside an even flow tub. The tub had sloping sides and was approximately 20 feet long and 16 feet wide.2 Claimant worked inside the tub welding deflectors onto a pipe most of the day. At hearing, Claimant described the alleged accident:

Q. Did you suffer an accident there on August 7, 2013?

A. I slipped on a cord. But just even being in there—it puts a strain on your whole body just even being in there for eight hours.

Q. What happed to you slipping on a cord?

A. I was crossing over the pipe that ran the length of the even flow tub to the other side. I reached up and grabbed ahold [sic] of the come-along that I had holding it in place. I went to step underneath the conveyor to get to the other side. My foot was on a cord. And when I took the pressure off my right foot, it rolled on the cord and my left foot went out from underneath me.

Transcript, p. 28, l. 19 through p. 29, l. 7.          8. Claimant testified he did not fall, but noted left knee pain. He did not report the incident to anyone that afternoon because his direct supervisor, Garland Kisner, was on vacation and no one else was at the shop. Claimant completed his shift and left for the day.          9. Claimant returned to work the following day, Thursday, August 8, 2013. He testified that Kisner returned from vacation on Thursday and:

First thing in the morning we talked about some other issues. I took him to the back of the piece of machinery, said that I was hurting from the previous day and I didn't want to work on the inside of the tub. And I worked on the outside of the tub for the 8 hours and 50 minutes.

         Claimant's Deposition, p. 34, ll. 1-6. Claimant did not specifically tell Kisner about his alleged slip on the cord the day before. Claimant also complained to Kisner about the disrespectful conduct of a coworker towards Claimant earlier in the week and threatened to quit the following Monday if his complaint was not addressed.          10. Claimant was off work Friday, Saturday, and Sunday. He returned to work on Monday, August 12, 2013, but quit shortly after arriving because Kisner had not resolved Claimant's complaint against his coworker to Claimant's satisfaction. Claimant collected his personal belongings and left the shop. Claimant has not worked for Century since that time. Claimant affirmed that he did not quit Century because of his leg issues.          11. After quitting his job at Century, Claimant "took it pretty easy" on his leg, thinking he had twisted or sprained his knee while working in the tub. Claimant's Deposition, p. 39, l. 3.          12. Subsequent employment. On September 24, 2013, Claimant began working for Wesley Mills Construction. Claimant climbed ladders that morning and helped put up trusses and soffit. By lunch time his left knee was "burning." Claimant believed his left knee symptoms were due to his alleged accident at Century. He completed his work for Wesley Mills that day. The following day, September 25, 2013, Claimant returned to his construction job in the morning, but his work was halted by rain after a few hours.          13. Reporting the alleged accident. On September 25, 2013, after rain halted construction work, Claimant went to Century where he spoke to Kisner about filing a claim with Century for his August 7, 2013 knee injury. Claimant testified: "I talked to [Kisner]. And I said they probably need to fill out a report on my...