Hartgrave v. City of Twin Falls, 083016 IDWC, IC 2009-005461

• Case Date: August 30, 2016
• Court: Idaho

CHARLES LEROY HARTGRAVE, Claimant, v. CITY OF TWIN FALLS, Employer, and STATE INSURANCE FUND, Surety, Defendants. Nos. IC 2009-005461, 2012-022300 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho August 30, 2016           FINDINGS OF FACT, CONCLUSION OF LAW, AND ORDER           R.D. Maynard, Chairman          INTRODUCTION          Pursuant to Idaho Code §72-506, the Idaho Industrial Commission assigned the above referenced matter to Referee Michael E. Powers. Claimant is represented by L. Clyel Berry of Twin Falls. Defendants are represented by Paul J. Augustine of Boise. In lieu of a hearing, the parties stipulated to having this matter decided on the record. The parties took two depositions and submitted briefs. This matter came under advisement on May 17, 2016. The Commission has reviewed the proposed decision, and agrees with the result. However, the Commission concludes that a different treatment of the issue of causation is warranted, and therefore substitutes this decision for that proposed by the Referee.          ISSUE          The sole issue to be decided is whether Claimant's right total knee arthroplasty (TKA) is compensable.          CONTENTIONS OF THE PARTIES          Claimant contends that the need for his right knee1 TKA was hastened by a change in his gait following two industrial accidents and surgeries to his left knee. Because Claimant was in a non-weight bearing status and on crutches for his last left knee injury, he was forced to bear a greater load on his right knee that created unbearable pain that was previously mostly asymptomatic. Claimant's right knee TKA was required due to this increase in pain.          Defendants counter that the medical evidence does not support Claimant's position in that Claimant did not complain of any pain in his right knee until three months after his full-duty release from his March 13, 2013 left knee surgery. Further, as Claimant can identify no accident involving his right knee, Nelson prevents recovery. Moreover, Claimant was a candidate for a right TKA before either of the accidents involving his left knee injuries/surgeries. Finally, Claimant never informed Defendants of his TKA until he answered discovery in March of 2014 and never made a claim for income or disability payments, and a Lump Sum Settlement Agreement limits the issue to whether Blue Cross has a subrogation interest in the medical expenses it paid for Claimant's TKA.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. Joint Exhibits (JE) A, B, C, G, I, O, P, and R (Claimant's May 20, 2015 deposition transcript).

2. Deposition transcript of Brian D. Tallerico, D.O., taken by Defendants on March 17, 2016.

3. Deposition transcript of R. Tyler McKee, D.O., taken by Claimant on March 31, 2016.

         All pending objections made during the course of taking the above-mentioned depositions are overruled, with the exception of Claimant's objection at pages 21-22 of Dr. McKee's deposition regarding the use in cross-examination of a medical record previously withdrawn by stipulation, which is sustained, and any testimony by Dr. McKee regarding that withdrawn exhibit is stricken.          FINDINGS OF FACT          1. Claimant is 61 years of age and residing in the Magic Valley. He graduated from Murtaugh High School in 1973.          2. Claimant spent 38 years as an employee of the Twin Falls Street Department.          Previous accidents/injuries          3. In the first grade, Claimant broke his right leg.          4. While in high school, Claimant injured his right knee resulting in a meniscectomy. He healed without residuals.          5. Claimant testified that the only medical treatment he received between the above and 2009 was for right shoulder pain, heartburn, and asthma. Claimant testified that before 2009, his right knee: ". . . was in pretty good shape." Claimant's Depo., p. 33. However, he would take an over-the-counter pain medication on occasion if he "overdid it."          6. On February 3, 2009, Claimant stepped on a piece of uneven asphalt and injured his left knee. He eventually came under the care of R. Tyler McKee who performed arthroscopic surgery on Claimant's left knee on May 6, 2009. Shortly thereafter, Claimant was returned to light, then full-duty work, although Claimant continued to have pain issues with his left knee.          7. Claimant suffered another injury to his left knee on August 23, 2012 when he slipped off of the bottom step of a water truck. Dr. McKee again treated Claimant and brought him to arthroscopic surgery on March 13, 2013. Claimant was non-weight bearing on the left and on crutches for approximately 6 weeks post-surgery. He was placed on sedentary duty until he was declared at MMI on August 9, 2013.          8. On November 8, 2013, Claimant again presented to Dr. McKee, this time complaining of bilateral knee pain. Dr. McKee performed a right TKA on November 25, 2013. The gravamen of this claim is whether the need for Claimant's right TKA is a compensable consequence of...