Hernandez v. Taco Shop, Inc., 120916 IDWC, IC 2013-021538

• Case Date: December 09, 2016
• Court: Idaho

CANDIDA HERNANDEZ, Claimant, v. TACO SHOP, INC. dba, FIESTA OLE RESTAURANT, Employer, and IDAHO STATE INSURANCE FUND, Surety, Defendants. No. IC 2013-021538 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho December 9, 2016           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           R. D. Maynard, Chairman          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Industrial Commission assigned the above-entitled matter to Referee Douglas A. Donohue. He conducted a hearing in Idaho Falls on February 24, 2016. Michael McBride represented Claimant. Scott Hall represented Defendants Employer and Surety. The parties presented oral and documentary evidence and later submitted briefs. The case came under advisement on September 8, 2016. This matter is now ready for decision.          ISSUE          The sole issue to be decided at this time is:

1. Whether Claimant is entitled to additional medical care, specifically a second arthroscopic knee surgery.

         All other issues are reserved.          CONTENTIONS OF THE PARTIES          Claimant contends she injured her knee on August 9, 2013 when it struck Employer's tile floor in a fall. Knee surgery was performed November 14, 2013. One meniscus tear was expected and repaired. After surgery a full thickness tear of the posterior horn of the meniscus remained. The unrepaired tear remains symptomatic. A second surgery is reasonable.          Defendants contend the treating surgeon and an IME physician have opined that a second surgery is unlikely to produce a satisfactory result. Moreover, a second surgery could exacerbate the arthritis in Claimant's knee. Claimant self-selected the surgeon upon whom she relies for a recommendation of a second knee surgery. The treating and IME physicians had more complete medical information upon which to formulate their opinions. Claimant is not a credible reporter of her function or pain.          EVIDENCE CONSIDERED          The record in the instant case included the following:

1. Oral testimony at hearing of Claimant and her daughter Keyla Gil;

2. Claimant's exhibits A through L, admitted at hearing;

3. Defendants' exhibits 1 through 18; and

4. Post-hearing depositions of Casey Huntsman, M.D., and Brian Tallerico, D.O.

         Except as noted immediately below, all objections raised in post-hearing depositions are overruled.          In post-hearing briefs, Defendants objected to and moved to strike the testimony of Dr. Huntsman as untimely. The objections to that part of Dr. Huntsman's testimony which relied upon documents provided to him only on the day of his deposition are sustained as violative of J.R.P. Rule 10. Testimony which does not rely upon late-provided documents is afforded weight. Defendants' motion to strike is denied.          Having analyzed all evidence of record, the Referee submits the following findings of fact and conclusions of law for review and adoption by the Commission.          FINDINGS OF FACT          (The issues in this matter having been bifurcated, not all medical records are addressed herein. Those addressed below are deemed most relevant to the issues at hand. No findings herein are intended to be applicable to issues not presently at issue. Nevertheless, the Referee analyzed the entire record carefully.)          1. Claimant was injured in a compensable accident. She slipped and fell. She twisted and struck her left knee on the tile floor.          Medical care          2. Claimant first sought medical care on August 14, 2013. She reported the accident occurred five days prior. Initial diagnosis was a knee strain and/or knee sprain.          3. A September 3, 2013 knee X-ray was negative.          4. A September 23, 2013 MRI of the left knee showed the meniscus tear.          5. On October 7, 2013 Dr. Andary examined Claimant. He noted mild effusion, medial joint line tenderness with positive McMurray and Steinmann...