JILL L STANSELL, Claimant,
v.
FRED MEYER/THE KROGER COMPANY, Employer/Self-Insured, Defendants.
No. IC 2016-018995
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
April 24, 2020
FINDINGS
OF FACT, CONCLUSIONS OF LAW, AND ORDER
Thomas
P. Baskin, Chairman
INTRODUCTION
Pursuant
to Idaho Code § 72-506, the Idaho Industrial Commission
assigned the above-entitled matter to Referee Michael Powers,
who conducted a hearing in Boise on August 21, 2018.
Claimant, Jill Stansell, was present in person and
represented by Taylor Mossman-Fletcher of Boise. Defendant
Employer, Fred Meyer, and Defendant Surety, The Kroger
Company, were represented by Matthew O. Pappas of Boise. The
parties presented oral and documentary evidence. Post-hearing
depositions were taken. Thereafter, Referee Powers retired.
By letter dated July 22, 2019, the parties wrote they were
willing to have the matter reassigned and that there was no
need for another Referee to re-hear the case. The matter came
under advisement on October 23, 2019, and on December 17,
2019, the matter was reassigned to Referee Sonnet Robinson.
The commission has reviewed the proposed decision authored by
Referee Robinson and agrees with the outcome. The Commission
prefers to give additional treatment to the factual dispute
over Claimant’s initial visit with Dr. Dockter and
hereby issues its own findings of fact, conclusions of law
and order.
ISSUES
The
issues to be decided were clarified at hearing and are:
1.
Whether Claimant suffered a personal injury arising out of
and in the course of employment;
2.
Whether Claimant’s injury was the result of an accident
arising out of and in the course of employment;
3.
Whether Claimant’s condition is due in whole or in part
to a pre-existing injury or disease or cause not
work-related;
4.
Whether Claimant is entitled to reasonable and necessary
medical care as provided for by Idaho Code § 72-432, and
the extent thereof;
5.
Whether Claimant is entitled to temporary partial and/or
temporary total disability (TPD/TTD) benefits, and the extent
thereof;
6.
Whether Claimant is entitled to permanent partial impairment
(PPI) benefits, and the extent thereof;
7.
Apportionment under Idaho Code § 72-406;
8.
Whether Claimant is entitled to permanent partial disability
(PPD) in excess of permanent impairment, and the extent
thereof; and,
9.
Whether Claimant is entitled to attorney fees due to
Employer/Surety’s unreasonable denial of compensation
as provided for by Idaho Code § 72-804.
CONTENTIONS
OF THE PARTIES
Claimant
contends that she suffered a compensable workplace injury and
is entitled to past medical care, payable per
Neel1, future medical care, past and future
TPD/TTDs, impairment, and permanent partial disability of
41%. Claimant’s injury was acute and was not due to any
preexisting condition. Defendants unreasonably denied this
claim, and Claimant is entitled to an award of
attorney’s fees.
Defendants
contend that Claimant did not suffer a workplace accident:
Claimant’s first chart note records “no known
injury” and, further, Claimant’s report of the
accident is inconsistent. Claimant’s need for care was
entirely due to her documented pre-existing back condition.
Claimant is not entitled to impairment or disability, and
Defendants acted reasonably throughout this claim.
EVIDENCE
CONSIDERED
The
record in this matter consists of the following:
1. The
Industrial Commission legal file;
2.
Joint Exhibits (JE) 1-41, admitted at hearing;
3. The
testimony of Claimant, Jill Stansell, Monte Hurley, Brittany
Fife, and Jeff Mortimer, taken at hearing;
4. The
pre-hearing depositions of Jill Stansell, one taken March 17,
2017 and one taken November 9, 2017;
5. The
post-hearing depositions of Robert Friedman, M.D., Lisa
Dockter, M.D., Peter Reedy, M.D., Vicken Garabedian, M.D.,
Rodde Cox, M.D., and Douglas Crum.
All
outstanding objections are overruled, apart from Defense
Counsel’s objection to Dr. Friedman’s new
impairment rating at page 27 of his deposition, which is
sustained.
FINDINGS
OF FACT
1. At
the time of hearing, Claimant was a 51-year-old divorced
woman living in Nampa, Idaho.
2.
Relevant Pre-Accident Medical History. On January 14, 2001,
Claimant presented to the St. Luke’s ER in Boise with
back pain. Claimant explained that she was getting on a
ladder and performed a “twisting bending motion”
which caused severe pain. JE 3:13. Claimant stated she had
experienced this type of pain before, that typically the pain
would get better, but never go away, and that this time was
the worse it had ever been. Id. Claimant was
admitted and prescribed Lortab, Flexeril, and Lodine.
Id. at 14.
3. On
August 24, 2008, Claimant suffered an injury to her low back
while working for Fred Meyer. JE 35:821. On August 26, 2008,
Claimant presented to Primary Health in Meridian with low
back pain caused by lifting at work. JE 5:19. Claimant was
prescribed Naproxen and Robaxin; an X-ray was ordered, and
work restrictions were issued. Id. The lumbar X-ray
showed “multilevel mild degenerative disease. Mild to
moderate degenerative disk disease at L5-S1. Relative lack of
lumbar lordosis. No compression abnormalities.”
Id. at 21. Claimant’s back pain had resolved
by her follow-up appointment on September 8, 2008. JE 6:24.
4. On
July 20, 2011, Claimant suffered another injury to her low
back while working for Fred Meyer. JE 35:821. At deposition,
Claimant stated she was lifting and her “back went
out.” Clt. Depo. 3/16/17 49:2. She was prescribed
Flexeril and briefly assigned light duty. Id. at
49-50.
5. On
November 20, 2015, Claimant underwent a CT scan for abdominal
pain, which in relevant part showed: “lumbar
degenerative disc disease at L5-S1. Limbus type vertebra L4
and L5.” JE 11:144.
6.
Industrial Accident. On Monday July 11, 2016, Claimant was on
her way to clock in, when another employee informed her that
a cider keg had “exploded” underneath the Growler
station. Tr. 34:10. To clean underneath the Growler station,
Claimant had to lift all the kegs2 out from where they were
stored under the station. In the process of lifting one, she
felt a “burning, shooting pain” in her low back.
Id. at 35:5-8. Claimant testified she
“held” her back after feeling the pain, and that
as the day went on her back continued to hurt and feel
“heavy.” Id. at 36:5; 39:10-12, 17.
Claimant did not recall reporting the accident to anyone that
day; instead her intention was to ice it when she got home.
Clt. Depo. 3/16/17 99:13-100:18. Claimant also explained that
Fred Meyer was having a competition where if the store was
accident free for a year, every employee would get $50.
Id.
7.
There is surveillance footage from the day of the accident,
but the video begins at 10:30 a.m. after Claimant had already
begun cleaning the Growler station and had moved at least two
sixth kegs from the right side of the Growler station. JE 26.
At deposition, Claimant recalled she hurt her back when she
pulled a keg out of the right side of the Growler station.
Clt. Depo. 3/16/17 93:21-94:1. Therefore, there is no footage
of the accident as described by Claimant.
8. Jeff
Mortimer, a loss prevention manager at the time of the
accident, testified that the tape was supposed to begin at
9:55 a.m., as indicated on the disc itself, however, for
whatever reason, that footage was not captured and was taped
over by the time Mr. Mortimer was contacted about the error.
Tr. 161:1-25. Mr. Mortimer does remember reviewing footage as
he burned it, and footage of Claimant cleaning the Growler
station, but could not recall any specific accident or injury
either in the footage he thought he copied (i.e. from 9:55am
to 10:30am) or the footage he actually did copy. See Tr.
160-164.
9. In
the footage available, Claimant is in front of the right
cupboard of the Growler station and two sixth kegs have
already been moved out from underneath the Growler station.
JE 26. Claimant is seen cleaning while kneeling, lifting
sixth kegs of unknown weight/fullness to clean around them,
and hooking up a sixth keg with the help of a merchandiser.
Id.
10. On
her way to her car that night...
