Howerton v. Washington Inventory Service, 050702 IDWC, IC 01-009943

Case DateMay 07, 2002
CourtIdaho
RODNEY B. HOWERTON, Claimant,
v.
WASHINGTON INVENTORY SERVICE, Employer,
and
ROYAL INDEMNITY COMPANY, Surety, Defendants.
No. IC 01-009943
Idaho Workers Compensation
Before The Industrial Commission Of The State Of Idaho
May 7, 2002
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Robert D. Barclay, who conducted a hearing in Pocatello on October 24, 2001. Claimant, Rodney B. Howerton, was present in person and represented by Albert Matsuura of Pocatello. Defendant Employer, Washington Inventory Service, and Defendant Surety, Royal Indemnity Company, were represented by W. Scott Wigle of Boise. The parties presented oral and documentary evidence. This matter was then continued for the taking of two post-hearing depositions and the submission of briefs, and subsequently came under advisement on March 1, 2002.          ISSUES          The noticed issues to be resolved as a result of the hearing are:          1. Whether Claimant suffered a compensable occupational disease;          2. Whether Claimant complied with the notice limitations set forth in Idaho Code § 72 448;          3. Whether Claimant is entitled to reasonable and necessary medical care as provided for by Idaho Code § 72-432, and the extent thereof; and, 4. Whether Claimant is entitled to temporary partial and/or temporary total disability (TPD/TTD) benefits, and the extent thereof.          ARGUMENTS OF THE PARTIES          Claimant maintains he began developing intermittent pain accompanied by numbness and tingling sensations in his lower right arm and the fourth and fifth digits of his right hand while operating a ten-key counter and driving motor vehicles for Employer. The counter was used to inventory items in stores; Claimant would drive the inventory crew to the various jobsites. He further maintains the pain eased-up when he took a retail job, but that after beginning a third job, he woke-up one morning with numbness and throbbing from the elbow to the fingers in his right arm, sensations similar to those he experienced while working for Employer, but more intense. Claimant also maintains, that after seeking medical care, he was diagnosed with cubital tunnel syndrome of the right elbow, which his treating physician, Dr. Will, correlated to his employment with Employer. He then argues that his right cubital tunnel syndrome constitutes an occupational disease that was contracted as a result of his work duties as a counter with Employer. Claimant further argues he filed a Form 1 with the Commission approximately one week after Dr. Wills made his diagnosis, the date of manifestation, well within the 60 day time limitation. He seeks the costs associated with the surgery performed by Dr. Wills on July 27, 2001, the costs of ongoing medical care, and time loss benefits.          Defendants counter Claimant has not proven his cubital tunnel syndrome was caused by his work with Employer. They assert his job did not involve repetitive flexion and extension of the elbow, one of the causes of cubital tunnel. Defendants further assert the opinion of Dr. Wills is flawed because Claimant did not give him a complete or accurate history, and that Dr. Simon had more complete and accurate information upon which to base his causation opinion. In the alternative, they assert Claimant’s claim is barred by Idaho Code § 72-448 since he attributed the physical symptoms associated with his carpal tunnel to his work with Employer, but failed to report the same within 60 days of the manifestation of these symptoms.          Claimant counters a review of Dr. Simon’s deposition testimony clearly shows that he selectively focused on facts which supported his finding of no causation and chose to ignore relevant medical records and information from the statement of Surety’s claims investigator which were contrary to his finding. He further argues that his testimony, the medical records, and Dr. Wills’ testimony, clearly supports a finding that his right ulnar problem was caused by his work activity with Employer. Claimant also argues he filed a Form 1 right after Dr. Wills diagnosed his condition and related it to his work with Employer.          EVIDENCE CONSIDERED          The record in this matter consists of the following:          1. The Industrial Commission legal file;          2. The testimony of Claimant taken at the October 24, 2001, hearing;          3. Joint Exhibits A through M admitted at the hearing;          4. The deposition of S. Angier Wills, Jr., M.D., with Exhibits A and B, taken by Claimant on October 25, 2001; and, 5. The deposition of David C. Simon, M.D., with Exhibit 1, taken by Defendants on November 12, 2001.          After having fully considered all of the above evidence, the Referee submits the following findings of fact and conclusions of law for review by the Commission.          FINDINGS OF FACT          1. Claimant began working for Employer in early January 2000 as a counter with its Pocatello crew. Employer had several crews or teams of counters that went into various retail businesses to conduct inventories throughout the Intermountain West. Each employee had a ten-key electronic calculator to count items with. The SKU was keyed in the ten-key, and then the number of items. The count was retained in the calculator’s memory, and periodically downloaded. Thousands of items were counted each shift.          2. The ten-key calculators weighed approximately ten pounds. They hung on a belt at the hip or upper thigh region of the person counting. Items were keyed in with the arm slightly bent and the person counting looking at the item being counted. Claimant used his right hand to key in numbers on his counter; he is right-handed. He was paid $8.00 per hour. Twelve to 14 hour work days, exclusive of driving time, were common. There would be a half-hour meal break on the longer shifts.          3. On January 19, 2000, Claimant saw Jonathan Cree, M.D., at Pocatello Family Medicine (PFM) for depression and possible ADHD. Two of his children had been diagnosed with ADHD. Dr. Cree increased the medication Claimant was taking for his depression and recommended he see the children’s physician for the ADHD. Nothing was said about his right upper extremity.          4. Claimant’s medical records show that he had...

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