Jobe v. Clinic, 092316 IDWC, IC 2014-014091

Case DateSeptember 23, 2016
CourtIdaho
RICHARD JOBE, Claimant,
v.
DIRNE CLINIC/HERITAGE HEALTH, Employer,
and
IDAHO STATE INSURANCE FUND, Surety, Defendants.
No. IC 2014-014091
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
September 23, 2016
          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           R.D. Maynard, Chairman          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Brian Harper, who conducted a hearing in Coeur D'Alene, Idaho, on March 4, 2016. Claimant was represented by Stephen Nemec, of Coeur D'Alene. James Magnuson, of Coeur D'Alene, represented Dirne Clinic/Heritage Health ("Employer") and Idaho State Insurance Fund ("Surety"), Defendants. Oral and documentary evidence was admitted. Post-hearing depositions were taken and the parties submitted post-hearing briefs1. The matter came under advisement on August 11, 2016.          ISSUES          The issues to be decided are2:
1. Whether Claimant suffers from a compensable occupational disease, including whether the provisions of Idaho Code § 72-448 serve as a bar to the claim;
2. Whether and to what extent Claimant is entitled to the following benefits:
a. Medical care;
b. Temporary disability benefits, partial or total (TPD/TTD);
c. Permanent Partial Impairment (PPI)
d. Permanent Partial Disability in excess of Impairment, including Total Permanent Disability pursuant to the Odd-lot Doctrine; and
e. Attorney Fees.
3. Whether Claimant is totally and permanently disabled; and
4. Whether the Neel Doctrine applies to Claimant's past medical bills.
         CONTENTIONS OF THE PARTIES          Claimant, a physician, asserts he contracted disseminated MRSA out of and in the course of his employment with Employer. The infection spread throughout his body, causing numerous and severe complications, and rendering him totally and permanently disabled. Claimant is entitled to all applicable benefits.          Defendants argue Claimant did not prove causation. Furthermore, he failed to comply with the notice and filing requirements of Idaho Code § 72-448. Defendants owe Claimant no benefits. Alternatively, should Claimant's disease be found compensable, Defendants would only be liable for payment of benefits after the date of manifestation.          EVIDENCE CONSIDERED          The record in this matter consists of the following:          1. The hearing testimony of Claimant's wife, Idalla Jobe, and his son, Brian Jobe, taken at hearing;          2. Claimant's Exhibits (CE) A through Z and AA, admitted at hearing;          3. Defendants' Exhibits (DE) 1 through 7, admitted at hearing, with the exception of pages 13 through 16 and 69 through 74 of DE 1, which were objected to, and which objection is hereby sustained;          4. The post-hearing deposition transcript of David Souvenir, M.D., taken on March 25, 2016;          5. The post-hearing deposition transcript of Harry Hull, M.D., taken on April 29, 2016;          6. The post-hearing deposition transcript of John McNulty, M.D., taken on May 23, 2016;          7. The post-hearing deposition transcript of Mr. Fred Cutler, taken on May 26, 2016; and          8. The post-hearing deposition transcript of Francis Riedo, M.D., taken on June 3, 2016.          Objections          Defendants' objection to Dr. McNulty's testimony totalling Claimant's various impairments is overruled in that the testimony is simply a mathematical exercise using combining tables available to anyone. Defendants' objections to opinion testimony of Dr. McNulty on page 15, l. 6 and ll. 13 through 21 are sustained in that they go beyond information provided in discovery, and Dr. McNulty's written report, CE S.          Claimant's objection to the admission of Defendants' proposed Exhibits 4 to Dr. Riedo's deposition – a study of the prevalence of MRSA carriage in healthcare workers in non-outbreak settings –is sustained. The motion to strike Dr. Riedo's testimony concerning the study is overruled. While the document is not admissible due to Defendants' failure to provide it in discovery and/or disclose it in "Rule 10" disclosures, the doctor may discuss the study in his oral testimony, as it was referenced previously in his written report.          Having considered the evidence and briefs of the parties, the Referee submits the following findings of fact and conclusions of law for review by the Commission.          FINDINGS OF FACT          1. At the time of hearing, Claimant was an 80 year old married man living in Spokane Valley, Washington. Claimant is a licensed physician; he graduated from medical school in 1961, completed a residency in internal medicine, then a fellowship in hematology and oncology in 1965.          2. Claimant went to work for Employer on October 8, 2012 as an internist and primary care physician. He saw patients five days a week for Employer. His last day of work was June 19, 2013. Prior, Claimant had worked at various hospitals and clinics.          3. Claimant presented to Patrick Mullen, M.D., on June 17, 2013, complaining of sudden onset right thumb pain. Eventually, the infection was determined to be caused by methicillin-resistant staphylococcus aureus, or MRSA. When asked as to a possible source of the infection, Claimant told Dr. Mullen the only thing that came to mind was the fact that his cat had scratched him on his right hand a few weeks previous.3          4. The infection spread throughout Claimant's body. This widely-disseminated MRSA infection had by the time of hearing resulted in numerous surgeries, including multiple hand, wrist, and forearm surgeries to clean out infection, surgeries to Claimant's back and left shoulder, and removal of Claimant's previously-installed artificial hip joint. Claimant was placed on IV antibiotics for suppressive therapy of his incurable MRSA infection, and will remain so for life.          5. Since June 2013, Claimant has suffered two strokes, arguably related to his MRSA infection. The strokes have left him unable to effectively communicate. He has trouble in his movements and needs assistance for things such as sitting, putting on his socks and shoes, and walking (he uses a cane and walks with a shuffling gait). Claimant was unable to attend the hearing in this matter due to his health condition, including his second stroke. He was never deposed in this matter, perhaps due to his inability to precisely communicate, or testify under oath.          6. Claimant hired John McNulty, M.D., to assess Claimant's impairment. Dr. McNulty assigned Claimant an impairment rating of 67% of the whole person due to Claimant's hip, shoulder, thoracic spine, wrist, and forearm condition, as well as his loss of ability to express speech.          7. Claimant's pre-existing conditions relevant to this discussion include pseudogout involving Claimant's right knee, which requires periodic draining of fluid from the knee joint. Claimant had his knee drained a few weeks before experiencing MRSA infection symptoms. Claimant also has a condition known as hemochromatosis, which causes an accumulation of iron in the blood. Treatment includes ongoing phlebotomy (blood draining) approximately quarterly. Claimant was also diagnosed with diabetes during his treatment for MRSA infection, but was not prescribed insulin injections.          8. Claimant had several surgeries prior to 2012, including bilateral shoulder replacement surgery (one medical record notes the date as 2003; Claimant's CV also notes a shoulder surgery in 2010), ankle surgery in 2009, lumbar fusion surgery in about 1992, a left hip replacement in 1990, and bilateral second metacarpophalangeal joint replacement surgery, no date given.          DISCUSSION AND FURTHER FINDINGS          Causation          9. An occupational disease is one that is due to the nature of an employment in which the hazards of such disease actually exist, are characteristic of, and peculiar to the trade, occupation, process for employment …. See Idaho Code § 72-102(22)(a). The terms "contracted" and "incurred," when referring to an occupational disease, are deemed to be the equivalent of "arising out of and in the course of employment". See Idaho Code § 72-102(22)(b). Under Idaho Code § 72-439, an employer cannot be held liable for an occupational disease unless such disease is...

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