Juarez v. Cintas Corporation, 092315 IDWC, IC 2009-024273

• Case Date: September 23, 2015
• Court: Idaho

JUANITA JUAREZ, Claimant, v. CINTAS CORPORATION, Employer, and FIDELITY & GUARANTY INS. COMPANY, Surety, and THE PHOENIX INSURANCE COMPANY, Surety, and STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendants. Nos. IC 2009-024273, IC 2012-012488 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho September 23, 2015           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 Boise, Idaho, on January 13, 2015. David Farney, of Nampa represented Claimant. Nathan Gamel, of Boise, represented Employer and Surety. Paul Augustine, of Boise, represented State of Idaho, Industrial Indemnity Fund (ISIF). Oral and documentary evidence was admitted. Post-hearing depositions were taken. The parties filed post-hearing briefs. The matter came under advisement on August 11, 2015.          ISSUES          By agreement of the parties at hearing, the issues to be decided are:

1. Whether the Claimant's conditions are due in whole or in part to a preexisting and/or subsequent injury or condition;

2. Whether and to what extent Claimant is entitled to permanent partial or permanent total disability benefits in excess of permanent impairment, up to and including total permanent disability pursuant to the odd-lot doctrine;

3. Whether the Claimant is totally and permanently disabled;

4. Whether apportionment for a pre-existing or subsequent condition is applicable pursuant to Idaho Code § 72-406;

5. If the Claimant is found to be totally and permanently disabled, whether ISIF is liable under the workings of Idaho Code § 72-332;

6. Apportionment under the Carey formula; and

7. Whether the collateral estoppel defense is available to Defendant under the facts of this case.

         CONTENTIONS OF THE PARTIES          Claimant injured her left shoulder in 2009 in an industrial accident with Employer. Following surgery, Claimant was released to full duty and returned to work. In March 2012, Claimant injured her right shoulder while working for Employer. While treating for her right shoulder injury, Claimant disclosed continuing problems with her left shoulder. She was given permanent restrictions applicable to both arms.          Claimant contends she is totally and permanently disabled under the odd-lot doctrine. She tried unsuccessfully to find employment within her restrictions, and to continue to look would be futile.          Employer/Surety (Defendants) argues Claimant is not totally and permanently disabled under any criteria for such finding. Furthermore, they are entitled to Idaho Code § 72-406 apportionment for Claimant's preexisting left shoulder impairment. If it is determined that Claimant is totally and permanently disabled, ISIF bears a proportional responsibility for Claimant's benefits, as calculated using the Carey formula.          ISIF argues Defendants failed to prove all pre-requisite conditions for ISIF liability under Idaho Code § 72-332. Moreover, Claimant did not prove her total disablement under the odd-lot doctrine. As such, ISIF is not liable for any of Claimant's disability.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The testimony of Claimant, taken at hearing.

2. The testimony of Teresa Ballard, taken at hearing.

3. Claimant's Exhibits (CE) A-V, admitted at hearing.

4. Defendant's Exhibits (DE) 1-19, admitted at hearing. (ISIF offered no exhibits.)

5. The post-hearing deposition transcripts of Nancy J. Collins, Ph.D., and Douglas Crum, CDMS, both of which were taken on March 3, 2015;

6. The post-hearing deposition transcript of Roman Schwartsman, M.D., taken April 24, 2015.

         All objections preserved during the depositions are overruled. ISIF'S motion to strike testimony of Dr. Collins, beginning at page 34 of her deposition is denied.          After having considered the above 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          BACKGROUND AND PRE-INDUSTIAL INJURY EMPLOYMENT          1. At the time of hearing, Claimant was a 61 year old divorced woman residing in Nampa, Idaho with two of her grown children.          2. Claimant was born into a migrant working family and moved frequently. As a result she attended multiple grade schools, none for very long. She did not learn to read or write English or Spanish, although she can speak both fluently. Her math skills are rudimentary. She stopped attending school in sixth grade, and worked in the fields until she was seventeen. She has no GED.          3. Claimant next went to work for Simplot sorting and packing potatoes. Thereafter she obtained assorted jobs through temporary employment agencies. The jobs included envelope stuffing, janitorial and housekeeping, sorting onions, and according to Nancy Collins, Ph.D, Defendants' vocational rehabilitation expert, assembling computers.          4. In 2005, Claimant hired on with Employer's Nampa facility. She worked in the bulk folding room, where products such as towels of varying sizes and apron/bibs were folded, sorted and bundled for delivery. At times during her employment, Claimant would fold the product; other times she would operate a machine which packaged the folded and sorted products into bundles. The bundles were loaded into large linen bags and shelved awaiting delivery.          FIRST INDUSTIAL INJURY          5. On August 13, 2009, Claimant injured her left shoulder while shelving a linen bag full of shop towels. She ended up under the care of orthopedic surgeon Roman Schwartsman, M.D.          6. Claimant underwent left shoulder surgery on November 16, 2009, for a complex rotator cuff tear, partial thickness biceps tendon tear, impingement, and fraying/tearing of the labrum.          7. After surgery and rehabilitative physical therapy, on March 18, 2010, Claimant was released to return to full-duty work. One month later, on April 22, 2010, after meeting with Claimant in follow up to see how she was tolerating work, Dr. Schwartsman declared Claimant medically stable and assigned her a 6% upper extremity impairment with no apportionment for preexisting conditions. She was given no work restrictions.          8. After Claimant returned to work, she continued to experience pain in her left shoulder. At times the pain was enough to cause Claimant to complain to her supervisor. She did not, however, seek additional medical treatment.          9. Claimant's department was cut from four to two workers, while simultaneously output expected from her department rose. She worked ten hour shifts, and was expected to fold up to 1400 shop towels per hour for an entire shift. She also at times ran the binding machine, although that required more reaching and increased Claimant's left shoulder pain. Claimant was able to perform her various duties, albeit with significant pain. She testified that after her left shoulder surgery, she was, on two occasions, moved from running the machine to folding towels due to her left shoulder pain.          SECOND INDUSTIAL INJURY          10. On March 8, 2012, Claimant injured her right shoulder while moving a linen bag full of towels. She sought medical treatment for the injury.          11. On May 14, 2012, Claimant underwent right shoulder surgery for her industrial injury. 12. Claimant was released for light duty work post surgery but her right shoulder remained painful.          13. In late October 2012, Dr. Schwartsman ordered a repeat MRI, which showed a new tear. On December 12, 2012, Claimant underwent a second right shoulder surgery to correct the tear.          14. During the course of treatment for her right shoulder, Claimant informed Dr. Schwartsman that she was also having left shoulder pain. Dr. Schwartsman was unaware that Claimant's pain complaints had continued unabated after her left shoulder surgery in 2010. The doctor ordered a left shoulder MRI in October of 2013, which showed a high grade partial thickness tear in the previously-repaired left rotator cuff. Dr. Schwartsman recommended surgery, but Claimant declined.          CLAIMANT'S POST-SURGERIES STATUS ...