Holt v. Van Beek Nutrition, 113018 IDWC, IC 2017-004601

• Case Date: November 30, 2018
• Court: Idaho

RICHARD HOLT, Claimant, v. VAN BEEK NUTRITION, Employer, and FEDERAL INSURANCE COMPANY, Surety, Defendants. No. IC 2017-004601 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho November 30, 2018           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           Thomas E. Limbaugh, Chairman.          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Alan Taylor, who conducted a hearing in Boise on April 10, 2018. Claimant, Richard Holt, was present in person and represented by Todd M. Joyner, of Nampa. Defendant Employer, Van Beek Nutrition (Van Beek), and Defendant Surety, Federal Insurance Company, were represented by Eric S. Bailey, of Boise. The parties presented oral and documentary evidence. Post-hearing depositions were taken and briefs were later submitted. The matter came under advisement on September 13, 2018.          ISSUES          The issues to be decided were narrowed at hearing and in the parties’ briefing and are:

1. Whether Claimant is entitled to additional medical care; and

2. The extent of Claimant’s permanent disability.

         CONTENTIONS OF THE PARTIES          All parties acknowledge that Claimant suffered an industrial accident on, January 11, 2017, when he slipped while moving a box at work, injuring his low back. Defendants accepted the claim and provided medical and temporary disability benefits. Claimant underwent diagnostic and conservative care, including extensive physical therapy. His low back condition was deemed non-surgical and was rated at 1% permanent impairment of the whole person. He was ultimately released to modified work and returned to work at Van Beek briefly but then ceased working, claiming increasing back symptoms. He asserts he has been largely unable to find work elsewhere. Claimant maintains he suffers permanent disability of 67.5%, inclusive of his 1% permanent impairment. Defendants argue Claimant overstates his continuing low back symptoms, is not motivated to return to work, and has not performed a meaningful work search. They assert he has at most a 5% permanent disability inclusive of his 1% permanent impairment.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The Industrial Commission legal file.

2. Claimant’s Exhibits A through M and Defendants’ Exhibits 1 through 14, admitted at the hearing.

3. The testimony of Claimant and Tricia Basson taken at the hearing.

4. The post-hearing deposition testimony of Tracy Ervin, P.T., taken by Claimant on April 26, 2018.

5. The post-hearing deposition testimony of Delyn Porter taken by Claimant on June 12, 2018.

6. The post-hearing deposition testimony of Keith Holley, M.D., taken by Defendants on June 28, 2018.

         All outstanding objections are overruled and motions to strike are denied. Claimant’s Motion to Strike Exhibits from Defendants’ Responsive Brief is denied as the Commission has repeatedly taken notice of the AMA, Guides to the Evaluation of Permanent Impairment previously and does so in the present case.          After having considered the above evidence and the arguments of the parties, the Referee submits the following findings of fact and conclusions of law for review by the Commission.          FINDINGS OF FACT          1. Claimant was born in 1979 and is left-handed. He was 38 years old and had resided in Twin Falls for two years at the time of the hearing. Van Beek Nutrition is a large manufacturing facility that produces nutritional products for livestock.          2. Background. Claimant was born in Fort Worth, Texas. He dropped out of school after the ninth grade. In approximately 1998, he moved to Oklahoma. From April through November 1999, Claimant served in the Job Corps while he received brick masonry training. He did not graduate. In 2005, at the age of 26, he earned his GED. In approximately 2006, he returned to Texas where he worked as an assembler, warehouseman, plumber’s helper, landscaper, forklift operator, and tow truck driver.          3. Claimant has three felonies including discharging a stolen firearm in city limits in 2004 and theft in 2009. His criminal record has made obtaining employment more difficult.          4. In October 2015, Claimant moved to Lewiston where he worked for two months at a fishing lodge caring for the grounds, trimming trees, cutting firewood for the cabins, and performing general maintenance. He then moved to Twin Falls.          5. On January 15, 2016, a temporary employment agency placed Claimant at Van Beek, who eventually hired him directly. Claimant’s duties included filling supplement bags, sewing them closed, palletizing, shrink-wrapping loads, and stocking the warehouse. He commonly stacked forty 50-pound bags per pallet and used pallet jacks and forklifts to move pallets.          6. Claimant had no back injuries or back problems prior to January 2017. Claimant acknowledged that his job with Van Beek was “really [his] first full-time permanent position.” Transcript, p. 58, ll. 18-20.          7. Industrial accident and treatment. On January 11, 2017, Claimant was working at Van Beek when he slipped on a pallet and nearly fell while carrying a 50-pound box. He felt a pop in his back and noted immediate low back pain. He reported the accident and was sent to St. Lukes where he was examined and released from work. He was earning approximately $12.18 per hour at the time of his accident. Claimant was off work for several weeks after which Van Beek created a light-duty job for him.          8. By February 7, 2017, Claimant’s back had not improved and Douglas Stagg, M.D., ordered a lumbar MRI that revealed “Minimal degenerative change at L4-5 and L5-S1. At the L4-5 level there is a 3 mm circumferential posterior disc bulge with a small associated annular tear.” Claimant’s Exhibit D, p. 14. Dr. Stagg referred Claimant to physical therapy and then to David Jensen, D.O.          9. On February 21, 2017, Dr. Jensen examined Claimant, reviewed his lumbar MRI, and diagnosed low back strain and degenerative lumbar changes. He concluded Claimant’s back condition was not surgical and recommended further physical therapy.          10. On February 27, 2017, Industrial Commission rehabilitation consultant Kristen Bench began working with Claimant. Bench orchestrated a light-duty job for Claimant at Van Beek.          11. By mid-March 2017, Claimant commenced light-duty work at Van Beek consisting of sweeping warehouses, helping in the office, taking out light trash, and making tags for mineral bags. Dr. Jensen performed one lumbar steroid injection which Claimant reported provided no benefit and then prescribed additional physical therapy. Claimant attended the physical therapy sessions but asserted they were of no help.          12. In April 2017, Claimant requested a permanent impairment rating and Dr. Jensen rated the permanent impairment of his low back at 1% of the whole person.          13. On April 25 and 26, 2017, Claimant underwent a functional capacity evaluation (FCE) by Tracy Ervin, P.T., to evaluate his lifting abilities. Claimant demonstrated he could stand for two hours, sit for three hours, and walk 10 blocks.          14. On May 2, 2017, Dr. Jensen and Claimant reviewed the results of the FCE. Having considered the FCE, Dr. Jensen restricted Claimant to lifting 10 pounds from floor to knees, 20 pounds from knees to waist, and 10 pounds overhead. Claimant’s Exhibit E, p. 5.          15. In May 2017, Claimant’s supervisor attempted to return Claimant to work filling bags with mineral and guiding the bags on a conveyor belt. However, after attempting this work Claimant reported it aggravated his back pain and he could not tolerate it repetitively. On May 3, 2017, Claimant signed a statement declaring:

I am unable to perform the duties that have been laid out by my manager Zane Yokum in accordance with the Doctor’s prescribed limitations which in detail is to place a bag on the bagger weighing .333 pounds, it then drops the weight in the bag and bag drops on to the conveyor. Richard then grabs a tag and guides the bag through the sewing machine.

         Defendants’ Exhibit 9, p. 203. Van Beek was unable to provide a less demanding permanent position. Claimant ceased working for Van Beek.          16. Claimant completed 12 more physical therapy sessions after his April 25-26, 2017 FCE with Ms. Ervin, but asserted...