Hanson v. United Parcel Service, Inc., 082916 IDWC, IC 2007-038562

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

KATHLEEN L. HANSON, Claimant, v. UNITED PARCEL SERVICE, INC., Employer, and LIBERTY INSURANCE CORPORATION, Surety, and STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND. IC 2007-038562, IC 2009-025929, IC 2010-014499, IC 2010-016099 Idaho Workers Compensation Before the Industrial Commission of the state of Idaho August 29, 2016           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           John C. Hummel, Referee          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Industrial Commission assigned this matter to Referee John C. Hummel, who conducted a hearing in Boise on April 4, 2016. Richard S. Owen represented Claimant, Kathleen L. Hanson, who was present. Susan Veltman represented Employer, United Parcel Service, and Surety, Liberty Insurance Corporation, collectively "Defendants." Paul J. Augustine represented the State of Idaho, Industrial Special Indemnity Fund (ISIF). The parties presented oral and documentary evidence. After post-hearing depositions, the parties submitted briefs. The case came under advisement on August 9, 2016.          PROCEDURAL BACKGROUND AND PREVIOUS FINDINGS          Referee LaDawn Marsters held a previous hearing in this case on March 22, 2013. That hearing resulted in a decision on May 14, 2014 in which the Commission ordered as follows:          1. Claimant proved that she sustained injuries from industrial accidents on November 7, 2007, September 30, 2009, May 28, 2010, and June 24, 2010 that were treated and healed by the time of hearing.          2. Claimant proved that her preexisting right knee degenerative condition was permanently exacerbated by her industrial accident on May 28, 2010.          3. Claimant proved that she sustained permanent impairment of 7% of the right lower extremity (25%, with 18% apportioned to preexisting conditions) due to her right knee injury and 1% of the whole person due to her low back injury, both from her May 28, 2010 industrial accident.          4. Claimant proved that she was totally disabled under the 100% method.          5. Claimant failed to prove that her industrial impairments contributed to her total and permanent disability, therefore neither Defendants nor ISIF were liable for disability benefits.          On May 22, 2014, Claimant moved for clarification/reconsideration of the Commission's May 14, 2014 decision. Defendants opposed reconsideration and requested permission to deduct the permanent partial impairment amount previously paid from benefits yet owing. In her motion for clarification/reconsideration, Claimant contended that she was entitled to whatever medical treatment her physicians feel was appropriate for her right knee condition. Defendants contended that Claimant's right knee condition was declared stable in the decision.          In ruling on the request for reconsideration, the Commission stated in pertinent part as follows:

The Commission was not asked to address Claimant's entitlement to additional medical care. The decision analyzed the 2010 accident and its resulting injuries within the context of determining causation, impairment and disability.

…

The Commission does not know the extent of Claimant's entitlement to medical care. The potential exists that Claimant is entitled to surgery related to the aggravation of her preexisting right knee condition.

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There is nothing inconsistent with finding Claimant is medically stable as of hearing, yet recognizing she may require further treatment in the future. But the extent to which she is entitled to future medical benefits is not at issue in this proceeding.

Order for Clarification/Reconsideration (August 1, 2014), 4-5.          ISSUES          The issues to be decided according to the Notice of Hearing are as follows: 1. Whether the condition for which Claimant seeks benefits was caused by the industrial accident;          2. Whether and to what extent Claimant is entitled to the following benefits:

a. Medical care;

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

c. Permanent partial impairment;

         3. Whether the Commission should retain jurisdiction beyond the statute of limitations;          4. Whether the Commission's decision in this matter of May 14, 2014 and Order on Reconsideration of August 1, 2014 have become final pursuant to Idaho Code § 72-718;          5. Whether the receipt of additional income benefits is precluded by the doctrine of collateral estoppel, quasi-estoppel, and/or judicial estoppel; and          6. Whether a determination that Claimant was totally and permanently disabled due to nonindustrial factors pursuant to the 100% method precludes a subsequent finding of temporary total disability.          CONTENTIONS OF THE PARTIES          Following the Commission's 2014 rulings, Claimant sought further treatment for her right knee. Andrew R. Curran, D.O., evaluated Claimant on September 3, 2014, and recommended a partial knee replacement. Claimant subsequently received that surgery on March 2, 2015. Claimant relies upon the opinion of Dr. Curran that the surgery was causally related to her industrial accident of May 28, 2010. She further argues that she is entitled to total temporary disability benefits related to her period of recovery following the surgery, as well as permanent partial impairment benefits based upon the impairment rating she received following her recovery.          Defendants contend that the Commission's prior finding that Claimant's right knee injury had been treated and fully healed is inconsistent with a further award of additional medical benefits. Nevertheless, they conditionally approved and subsequently paid for Claimant's right knee surgery and related treatment. They dispute their liability for Claimant's September 3, 2014 medical evaluation by Dr. Curran because it occurred before Surety approved him as Claimant's treating physician. They rely upon the opinion of Lance E. LeClere, M.D., that Claimant's need for surgery was unrelated to a permanent aggravation of her right knee but rather was the result of preexisting, nonindustrial degenerative arthritis. Defendants contend Commission's previous decision of May 14, 2014 has become final pursuant to Idaho Code § 72-718 and precludes any additional benefits. Thus, they assert that the Commission's prior findings concerning maximum medical improvement and permanent impairment of Claimant's right lower extremity are conclusive and may not be re-litigated. Finally, Defendants assert that Claimant had a 100% disability due to nonindustrial conditions at the time of the 2013 hearing and thus is ineligible for further indemnity benefits.          ISIF argues that regardless of the outcome of this proceeding, it is not liable for any of the benefits that Claimant is seeking nor may ISIF's liability for a portion of total and permanent disability be re-litigated.          OBJECTIONS          All objections preserved in post-hearing depositions are overruled.          EVIDENCE CONSIDERED          The record in the instant case included the following:          1. The Industrial Commission legal file;          2. The testimony of Claimant taken at the hearing;          3. Claimant's Exhibits A through H admitted at the hearing;          4. Employer/Surety's Exhibits 1through 42 admitted at the hearing;          5. The deposition transcript of Andrew R. Curran, D.O., taken on April 1, 2016; and          6. The deposition transcript of Lance E. LeClere, M.D., taken on April 28, 2016.          The Referee submits the following findings of fact and conclusions of law for the approval of the Commission and recommends it approve and adopt the same.          FINDINGS OF FACT          1. Claimant. Claimant was 59 years of age at time of hearing and resided in Unity, Oregon. She had not worked since her thirty-year employment with Employer as a truck driver ended in 2010 and a part-time job with the postal service ended in 2012. She had no intention of returning to the workforce. She became a recipient of Social Security Disability benefits in or about 2011. She was also the recipient of a disability pension connected to her employment with Employer. Tr., 15:6-7; 27:21-28:3; Ex. 7:512 (30:20-22); Ex. 36:1247 (104:16-106:23).          2. Right Knee Prior Medical History. On August 30, 2000, Claimant underwent an X-ray of her right...