Jordan v. Dean Foods, 041315 IDWC, IC 2006-005687

• Case Date: April 13, 2015
• Court: Idaho

EDWARD JORDAN, Claimant, v. DEAN FOODS, Employer, and ACE INSURANCE and INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Sureties, Defendants. Nos. IC 2006-005687, IC 2010-001650 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho April 13, 2015           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           R.D. Maynard, Chairman          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee LaDawn Marsters, who conducted a hearing in Boise on July 18, 2013. Claimant was present at the hearing and represented by Justin Aylsworth of Boise. W. Scott Wigle of Boise represented the Employer (referred to herein as "Meadow Gold") and both Sureties. The parties presented oral and documentary evidence and three post-hearing depositions were taken. Post-hearing briefs were filed, and the matter came under advisement on          February 4, 2015. 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          By agreement of the parties at the hearing, the issues to be decided are:          1. Whether Claimant's cervical spine condition for which he underwent a tri-level disc decompression and fusion surgery on June 6, 2012 is a compensable workplace injury related, in whole or in part, to his industrial accidents on May 16, 2006 and/or January 12, 2010;          2. Whether and to what extent Claimant is entitled to benefits for:

a. Medical care;

b. Temporary total disability (TTD);

c. Permanent partial impairment (PPI); and

d. Disability in excess of impairment;

         3. Whether any of Claimant's claims are barred by operation of the statute of limitations provided in Idaho Code § 72-706;          4. Whether any of the benefits to which Claimant may be entitled are subject to apportionment under Idaho Code § 72-406; and          5. Whether Defendants, or any of them, are liable for attorney fees pursuant to Idaho Code § 72-804.          CONTENTIONS OF THE PARTIES          Undisputed. It is undisputed that Claimant suffered workplace accidents on May 16, 2006 and January 12, 2010, while working for Meadow Gold, that resulted in injuries to his neck. Claimant timely reported these injuries, and Surety provided benefits for treatment.          Following the 2006 injury, Claimant was temporarily placed on light duty work. After conservative treatment, including physical therapy, Claimant was deemed medically stable on September 1, 2006, and he returned to full-duty. Following the 2010 injury, Claimant continued to work full-duty. After a short course of physical therapy, he was deemed medically stable on February 16, 2010, even though he still had what he described as a knot and burning sensation in his right periscapular area.          Claimant did not seek additional treatment for his neck until summer 2011. Thereafter, on June 6, 2012, Claimant underwent a tri-level cervical spine fusion by Dr. Doerr.          Surety denied benefits based on an independent medical evaluation (IME) opinion by Dr. Friedman that the surgery was not causally related to either industrial accident; rather, it was the result of degenerative disc disease. Claimant worked full-duty at Meadow Gold until an assistant was assigned to his route, about two weeks before his cervical spine surgery. He has not been employed since his surgery because he believes he is physically unable to work at jobs for which he is otherwise qualified.          Claimant's position. Claimant contends that his cervical spine fusion was required solely as a result of the 2010 injury. Therefore, he is entitled to benefits for medical care, permanent impairment, temporary disability, and permanent disability of 31% of the whole person inclusive of PPI. Claimant also seeks an award of attorney fees because he claims Defendants failed to provide reasonable medical care following the 2006 and 2010 industrial accidents. Further, Claimant asserts that Defendants denied his claim for additional benefits without a reasonable medical basis. He relies upon the medical opinions of Drs. Foutz, Doerr, and Verska, and the vocational opinion of Douglas Crum, CDMS.           Defendants' position. Defendants counter that Claimant has failed to meet his burden of proving that either of the industrial accidents is causally related to his June 2012 cervical spine surgery. They focus upon foundation problems with the opinion evidence of Drs. Foutz, Doerr, and Verska, arguing that Dr. Friedman's opinion is the most credible because it is the only medical opinion which considers all of Claimant's relevant medical facts. They deny Claimant is entitled to any additional benefits and that he has any basis for an award of attorney fees.          OBJECTIONS          All pending objections preserved at the hearing and post-hearing depositions are overruled.          EVIDENCE CONSIDERED          The record in this matter consists of the following:          1. The pre-hearing depositions of:

a. Claimant taken July 24, 2012; and

b. Michael Foutz, M.D., taken June 26, 2013;

         2. Claimant's testimony taken at the hearing;          3. Claimant's Exhibits (CE) A through X admitted at the hearing;          4. Defendants' Exhibits (DE) 1 through 3 admitted at and following the hearing by stipulation of counsel; and          5. The post-hearing depositions of:

a. Joseph Verska, M.D., taken November 22, 2013;

b. Douglas N. Crum, CDMS, taken July 25, 2014; and

c. Robert H. Friedman, M.D., taken October 16, 2014.

         FINDINGS OF FACT          BACKGROUND          1. Claimant was 48 years of age at the time of the hearing and residing in Long Beach, Washington. He had a childhood generally unmarked by significant physical problems, although he did break his leg when he was ten.          2. Claimant enlisted in the United States Navy when he was 17, obtaining his GED during the next year. In the Navy, Claimant took a couple of college-level courses. He served as a gunner's mate for more than ten years, then served his final ten-year span as a career counselor, assisting sailors in determining their qualifications for career advancement programs, and helping prepare applications for those programs. In preparation for this position, Claimant attended the Navy's career counseling school, where he learned to review manuals to determine eligibility requirements. He also obtained a commercial driver's license while enlisted. Claimant accumulated various merit and service honors through the time of his honorable discharge and service retirement in 2003.          3. Upon his retirement from the Navy, Claimant moved to Mountain Home, Idaho and worked in a call center for three months. Thereafter, in August 2003, Claimant was hired as a full-time milk delivery driver at Meadow Gold, doing heavy work such as moving multiple cases of milk at once, stacking pallets, and other activities.          MILITARY SERVICE MEDICAL TREATMENT AND DISABILITY ASSESSMENTS          4. While in the Navy, Claimant received treatment primarily for low back pain with radiculopathy (treated with epidural steroid injections; surgery was discussed but Claimant declined), headaches (including migraines), ear problems, and left knee symptoms (for which he underwent arthroscopic surgery in 2000). He was also treated for seasonal illnesses (like sinus ailments, for example), as well as a stress fracture to his left foot in 1985, vasectomy in 1987, and excision of a salivary calcification from his left submandibular gland in 1999.          5. On a few occasions, Claimant was treated for upper extremity and/or thoracic spine symptoms:

∙ In August 1999, Claimant sought treatment for what he thought was a pinched nerve in his neck. He thought onset had occurred when he opened up a tent flap, and that it had happened several times before. Claimant reported bearable pain, at about "1" on a ten scale, that would increase to "7" or "8" with backward neck movement. A couple of weeks later, he sought a Motrin prescription to treat his persistent sore neck. He was instructed to seek additional treatment if his pain worsened, which he apparently did not do.

∙ In November 2000, Claimant reported upper thoracic spine pain with referred pain to his

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