Holland v. Century Contractors, Inc., 031417 IDWC, IC 2012-031788

• Case Date: March 14, 2017
• Court: Idaho

CHRIS HOLLAND, Claimant, v. CENTURY CONTRACTORS, INC., Employer, and IDAHO STATE INSURANCE FUND, Surety, Defendants. No. IC 2012-031788 Idaho Workers Compensation Before The Industrial Commission of The State of Idaho March 14, 2017           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. He conducted a hearing in Boise on April 4, 2016. The parties presented oral and documentary evidence and later submitted briefs. Dennis Petersen represented Claimant. Russell Webb represented Defendants Employer and Surety. The case came under advisement on September 27, 2016. Referee Donohue submitted proposed findings of fact and conclusions of law to the Commission for review. 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 according to the Notice of Hearing and as agreed to by the parties at hearing are:

1. Whether additional biceps surgery is reasonable, and, if so, whether Claimant's noncompliance, if any, in physical therapy removes this surgery as a compensable consequence of the industrial accident;

2. Whether Claimant is medically stable and, if so, on what date;

3. Whether Claimant is entitled to temporary total disability benefits;

4. Whether Claimant's entitlement to benefits should be affected by the application of Idaho Code §72-435;

         All other issues were reserved.          CONTENTIONS OF THE PARTIES          Claimant contends he is entitled to a third surgery to repair one of the tendon attachments to his biceps. He has reasonably but imperfectly complied with doctor's physical therapy orders, including home exercises. His few no-shows for physical therapy were unavoidable in his circumstances. He faithfully wore his arm sling according to doctor's orders as he understood them. Treating physician Dr. Tashjian considers Claimant a good candidate for this repeat surgery, and disagrees with Dr. Doerr's evaluation, assumptions about noncompliance, and opinions against the reasonableness of repeat surgery. This surgery is reasonable and necessary to maximize Claimant's recovery from the compensable shoulder injury. Getting out of bed—the event which caused the biceps to drop—is not an unsanitary or unreasonable practice within the scope of Idaho Code §72-435. Until this surgery is performed and Claimant recovers from it, he is not medically stable. TTD benefits remain payable for the period November 18, 2013 to the August 27, 2014 surgery and again for the period from September 7, 2015 to date and continuing until medical stability is reached.          Defendants contend the additional surgery is unreasonable because it was caused by Claimant's failure or refusal to follow doctor's orders. Idaho Code §72-435 applies. Claimant's noncompliance constitutes a persistent and unreasonable hindrance of his treatment and there is no reason to believe Claimant's representations that he will change his behavior if another surgery is performed. There is no reason to believe Claimant's unsupported representations that he did his home exercises as ordered. Dr. Doerr opined that this third surgery is neither reasonable nor necessary. Claimant's surgeon, Dr. Tashjian, mostly agrees with          Dr. Doerr. Where he does not, he shows a failure to make himself aware of the extent of Claimant's noncompliance and overrates his duty as treating physician. Further, Claimant is not entitled to additional TTD upon his refusal of suitable light-duty offered by Employer. Despite Employer advising Claimant that light-duty work was available on June 11, 2013, and Claimant's representation on June 13, 2013 to Employer that he would work a specific light-duty job, Claimant did not work except for 2.3 hours on August 12, 2013 after which Claimant left the jobsite without contacting Employer. Suitable light duty remained available. In sum, Claimant has failed to show he is entitled to additional surgery or TTD benefits.          EVIDENCE CONSIDERED          The record in the instant case included the following:

1. Oral testimony at hearing of Claimant and of Justin Kunde, an owner of Employer;

2. Joint exhibits A through U;

3. Post-hearing depositions of orthopedic surgeons Robert Tashjian, M.D., and Timothy Doerr, M.D., which were designated as exhibits T and U at hearing in anticipation of being taken.

         All objections in depositions are OVERRULED, except at page 52 of Dr. Doerr's deposition, which is SUSTAINED.          FINDINGS OF FACT          1. In this bifurcated matter, only the proposed treatment for the right biceps is at issue. Limited findings related to the right shoulder are provided for context only and are not intended to bind the Commission or any party should a later dispute arise regarding the nature, extent, or compensability of Claimant's shoulder condition.          2. On September 27, 2012 Claimant began working for Employer as a construction laborer. On or about December 13, 2012 Claimant felt sudden right shoulder pain while using a vacuum hose to clean around forms before a concrete pour.           3. Claimant visited an urgent care clinic on December 13, 2012. Exh. D1. Documents of record indicate that a lifting event occurred on December 11, 2012 as well as notes indicating that Claimant "[h]as been able to pop [right] shoulder in & out of place for years. Sometimes when it pops out it really hurts. At work 2 days ago, it popped out while lifting over head and this is the worst its [sic] ever been. Worried about new or worse injury." Exh. D1. The x-rays taken the same day showed intact osseous structure without fracture, dislocation, or joint space abnormality with adjacent ribs intact. Exh. E1. The attending physician prescribed Ibuprofen, Norco, a sling and home physical therapy; Claimant was also restricted from all use of his right arm. Exh. D2. During a follow-up on December 20, 2012, PAC Julie Heier ordered an MRI. Exh. D4. Radiologist Dr. Peter Vance read the December 26, 2012 MRI as showing a tear of the posterior labrum, thinning of the articular cartilage of the posterior glenoid with subchondral cystic change suggesting degenerative joint disease, and type 2 acromion. Exh. E2.          4. On December 30, 2012 Claimant received an order to attend physical therapy three times per week for three weeks. This prescription provided a diagnosis of "tear of posterior labrum [right] shoulder." Exh. D6.          5. Claimant was referred to John Andary, M.D., on January 4, 2013 (the referral note inaccurately dates the year as "12"). Exh. D7.          6. On January 9, 2013, Dr. Andary assessed Claimant's condition as a right shoulder posterior subluxation/dislocation with posterior labral tear and some injured cartilage and indicated that he would like to schedule an arthroscopy decompression and labral repair on Claimant's right shoulder. Exh. F2.           7. On February 13, 2013, RehabAuthority provided an initial evaluation of Claimant for physical therapy, documented by Chris Rigby in a Referral Acknowledgement dated February 26, 2013. Exh. F2(A).          8. Dr. Andary performed a right shoulder arthroscopy with posterior labral repair, debridement of articular, central, and anterior glenoid, and subacromial bursitis with decompression on February 28, 2013. Exh. F5. At the postoperative followup on March 6, 2013, Dr. Andary instructed, "Chris will start gentle pendulum and wall-walking exercises. We discussed appropriate restrictions. He will start therapy in three weeks." Exh. F3.          9. In his March 6, 2013 prescription/instructions for physical therapy, Dr. Andary incorrectly identified the diagnosis and surgery as pertaining to Claimant's left shoulder. Exh. F7. A similar May 15, 2013 prescription and a status report preserved this error. Exh. F15-16. However, the majority of Dr. Andary's notes and related correspondence clearly describes the right upper extremity when discussing symptoms, treatment, restrictions, and limitations.          10. Between March 6, 2013 and April 10, 2013 Dr. Andary restricted Claimant from all work, then eased the restriction to allow "desk work only" with limitations against all use of the right upper extremity including driving a stick shift, and requiring a "sling @ all times." Exh. F7-13. ...