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...