Hinckley v. J.C. Penney Company, Inc, 061912 IDWC, IC 2004-007185

Case DateJune 19, 2012
CourtIdaho
MARLENE HINCKLEY, Claimant,
v.
J.C. PENNEY COMPANY, INC., Employer,
and
AMERICAN HOME ASSURANCE COMPANY, Surety,
and
STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendants.
No. IC 2004-007185
Idaho Workers Compensation
Before the Industrial Commission of the state of Idaho
June 19, 2012
          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           Thomas E. Limbaugh, Chairman          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Industrial Commission assigned the above-entitled matter to Referee Douglas A. Donohue, who conducted a hearing in Idaho Falls on May 13, 2010. Claimant was present in person and was represented by Jay Kohler. Employer and Surety were represented by Alan Hull. Industrial Special Indemnity Fund (ISIF) was represented by Paul Rippel. The parties presented oral and documentary evidence. After a delay in obtaining post-hearing depositions, the parties submitted briefs. Claimant declined to submit the allowed post-hearing reply brief. The case came under advisement on November 14, 2011. 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.          ISSUES          The issues to be decided by the Commission as the result of the hearing are:          1. Whether the condition for which Claimant seeks benefits was caused by the alleged industrial accident;          2. Whether apportionment for a pre-existing condition pursuant to Idaho Code § 72-406 is appropriate;          3. Whether and to what extent Claimant is entitled to:
a. Permanent partial impairment (PPI);
b. Permanent disability in excess of impairment, including total permanent disability; and
c. Attorney fees;
         4. Whether Claimant is entitled to permanent total disability under the odd-lot doctrine;          5. Whether ISIF is liable under Idaho Code § 72-332 liability; and          6. Apportionment under the Carey formula.          CONTENTIONS OF THE PARTIES          Claimant contends she broke her right arm and injured her right shoulder on June 19, 2004 when a customer – a suspected shoplifter – knocked her down as she hurriedly left the store. After recovery, she has been able to work no more than part-time, about 9 to 12 hours per week. Employer's offer of post-accident work shows Employer is a "sympathetic employer" for purposes of odd-lot analysis. Claimant suffers from a number of injuries and conditions which pre-existed this industrial accident and which combine with the injuries from this industrial accident to render her totally and permanently disabled, thus imposing liability on ISIF also. Alternatively, if her permanent disability is deemed less than total, on a pro-rata basis, Claimant's permanent disability should be apportioned on an 85%/15% basis, with 15% being related to this industrial accident.          Employer and Surety contend Claimant recovered from her injuries related to this industrial accident. She suffered no permanent disability beyond the PPI ratings she received from physicians. She is not totally and permanently disabled, nor an odd-lot worker. Claimant's subjective assessment of her condition and disability is inconsistent with objective medical findings and opinions. In the alternative, if some permanent disability in excess of PPI is found, it is entirely apportionable to her pre-existing injuries and conditions. In the final alternative, if Claimant is deemed totally and permanently disabled, Employer and Surety, under the Carey formula, would be liable for 27% or 135 weeks of disability, the remainder being the responsibility of ISIF.          ISIF contends it bears no liability under relevant statutes. Claimant is not totally and permanently disabled. Alternatively, no pre-existing PPI was ever established, except by way of some speculative hindsight. Such speculation should be disregarded in the absence of contemporaneously documented continuing complaints by Claimant that such injuries and conditions were symptomatic in a way that impaired her daily function. Further, required elements of Section 332 have not been established by Claimant.          EVIDENCE CONSIDERED          The record in the instant case included the following:
1. The legal file of the Commission;
2. The hearing testimony of Claimant;
3. Joint exhibits 1-42, including exhibits 38A and 41A, admitted at hearing;
4. Post-hearing depositions of treating orthopedist Gene Griffiths, M.D., of physiatrist Rodde Cox, M.D., of orthopedic surgeon Paul Collins, M.D., and of vocational expert Douglas Crum, C.D.M.S.
         Some exhibits are illegible; some are incomplete. For example, exhibit 17, page 49, clearly indicates additional notations were made on the back of the original paper. The back side and its notations were not included in the record. No speculation is made about what such lost entries might have said.          Objections are overruled in all depositions, EXCEPT as follows: Dr. Cox depo., p. 81 is sustained; Mr. Crum depo., p. 70 is sustained.          FINDINGS OF FACT          1. Claimant worked as a retail clerk for Employer on June 19, 2004. She began working for Employer three years earlier, July 9, 2001. In 2000, Claimant took an early retirement from her career of 25 years; she had worked at Idaho Nuclear Engineering Laboratory (the "Site") for various contractors where she performed cost estimating and budget reporting.          2. On June 19, 2004, Claimant was struck by an alleged shoplifter as she hurriedly left Employer's premises (the "Store"). Claimant was knocked to the floor. Claimant's proximal humerus suffered a comminuted fracture.          3. For two weeks before this industrial accident, Claimant was receiving ongoing physical therapy for a workers' compensation claim following an incident at work which had occurred on May 25, 2004. She felt pain while moving a clothing display fixture. The incident involved her left neck, scapula, and back. The June 19, 2004 accident, and resulting hospitalization, interrupted the physical therapy regimen associated with the earlier incident.          Medical Care          Acute Medical Care after the Store Accident: June 19 – December 2004          4. Claimant was first seen by ER physician Paul Allen, M.D. She initially reported right shoulder pain. X-rays showed a dislocated right shoulder and fractured humerus. Orthopedic surgeon Gene Griffiths, M.D., was brought in for consult. A CT scan following attempts to reduce the dislocation showed bone fragments with three larger pieces of bone and a traumatic rotation of the humerus; this was later referred to as a "head split" injury, referring to the proximal head of the humerus. Of note was the prior surgical removal of a portion of her right clavicle in 1985.          5. Surgery to reset the fractured humerus was not immediately possible because Claimant was taking Plavix, an anticoagulant. Shawn Speirs, D.O., provided some treatment in consultation with Dr. Griffiths. Dr. Speirs examined her occasionally for this and other conditions in the following months.          6. On June 22 Claimant was sent home, her arm in a sling. Home health care was prescribed. Claimant was instructed to continue her physical therapy exercises.          7. Dr. Griffiths monitored Claimant's condition in follow-up until surgery could be performed on July 2, 2004. The surgery required a prosthetic replacement of the humeral head. The remainder of her hospital course was uneventful; she was monitored for possible cardiovascular difficulties as a result of the discontinuance of her Plavix, but no such difficulties arose. Claimant was discharged on July 7. Her right arm being temporarily incapacitated by the surgery. Home health care was again prescribed.          8. Claimant received home health care beginning June 23 through August 2. She previously had begun receiving home health care on May 13, two weeks before the lifting incident. She had reported feeling some pain after moving a fixture at work.          9. Dr. Griffiths continued with follow-up visits. By August 27, Claimant's range of motion was full, but with pain at the extremes. She had discontinued narcotic analgesics and was taking only Tylenol, despite her reports of continued pain in her right shoulder.          10. By November, some left wrist symptoms had developed from overuse. Also, she reported a return of some bilateral...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT