Kibler v. The Fausett Group, Inc., 041416 IDWC, IC 2012-016396

• Case Date: April 14, 2016
• Court: Idaho

RAYMOND KIBLER, Claimant, v. THE FAUSETT GROUP, INC., Employer, and IDAHO STATE INSURANCE FUND, Surety, Defendants. No. IC 2012-016396 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho April 14, 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 July 8, 2015. Claimant was represented by Starr Kelso, of Coeur D'Alene. James Magnuson, of Coeur D'Alene, represented The Fausett Group ("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 briefs. The matter came under advisement on March 11, 2016.          ISSUES          By agreement of the parties, the issues to be decided are:

1. Whether the condition for which Claimant seeks benefits was caused by an industrial accident;

2. Whether Claimant's condition is due in whole or in part to a pre-existing condition; and

3. Whether and to what extent Claimant is entitled to the following benefits:

a. Medical care;

b. Temporary disability benefits, partial or total (TPD/TTD); and

c. Permanent Partial Impairment (PPI).

         The issues of disability and attorney fees are reserved.1          CONTENTIONS OF THE PARTIES          Claimant asserts he injured his left hip, low back, and sacroiliac while lifting a heavy piece of equipment while in the course and scope of his employment with Employer. This accident also exacerbated, and rendered surgical, bi-lateral inguinal hernias. He is not yet at MMI. Claimant is entitled to all past and future medical costs associated with his industrial accident. He is also entitled to temporary disability benefits.          Defendants argue Claimant suffered a minor low back strain in the accident in question. He sought no medical treatment immediately thereafter. His hernias, and belatedly-generated hip and sacroiliac complaints, are not related to his work injury. Defendants owe Claimant no benefits.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. Claimant's testimony, taken at hearing;

2. The hearing testimony of witness James Striker;

3. Claimant's Exhibits (CE) A through I, K, N, P, Q, R – except for pages 468-472, 524-539, 557-601 – and S, admitted at hearing2;

4. Defendants' Exhibits (DE) 1 through 17, admitted at hearing;

5. The post-hearing deposition transcript of Merle Janes, M.D., taken on August 5, 2015;

6. The post-hearing deposition transcript of Jonathan Spitz, M.D., taken on September 18, 2015; and

7. The post-hearing deposition transcript of Jeffrey Larson, M.D., taken on November 9, 2015.

         All objections preserved during the depositions are overruled, with the exception of the objection to the introduction of Exhibits 2 and 3 to the deposition of Dr. Janes, which was sustained in a separate previously-filed order.          Claimant's Objection and Motion to Strike          Claimant also filed an Objection and Motion to Strike all or a portion of Defendants' post-hearing brief (with a request for attorney fees), based upon the allegation that the Defendants' brief is tainted with references, citations, and quotations pertaining to the excluded Exhibits 2 and 3 to Dr. Janes' deposition, referenced above. However, after Dr. Janes stated he was not familiar with the exact insurance document identified as Exhibit 2, he went on to discuss the concept behind insurance documents such as Exhibit 2. There was no motion to strike his voluntary statement. Furthermore, his statement discussed his general awareness concerning insurance companies refusing to cover his proposed prolotherapy treatment. Reference to the doctor's statement is permissible.          The Referee will not consider the questions and answers in Dr. Janes' deposition starting on page 73, line 1, and continuing to page 74, line 17. Also, the dialog beginning at page 75, line 24, and continuing to page 76, line 11 is also stricken. The stricken lines are directly related to the specific documents proposed as Exhibits 2 and 3 to Dr. Janes' deposition. In their briefing, Defendants made no citation or reference to the doctor's responses contained within that stricken portion of the deposition.          Defendants permissibly asked general questions, independent of their proposed introduction of a related document, concerning Medicare and Medicaid's refusal to accept the treatment proposed by Dr. Janes. The doctor testified he was familiar with Medicare and Medicaid's prohibition. The line of questioning was proper; the introduction of specific documents not timely provided under the Rules was not.          Claimant's objection to Defendants inserting a definition from Mosby's Medical Dictionary in their brief without prior admission into evidence based upon proper foundation is well taken; that definition, describing the Health Care Financing Administration, its responsibilities and purpose, will be stricken from Defendants' brief and not considered when rendering a decision in this matter. The remainder of Claimant's motion, including his request for attorney fees in conjunction with the motion, is denied.          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. In the course and scope of his employment on March 12, 2012, Claimant and his supervisor, James Striker, were attempting to lift a piece of mining equipment known as a tugger onto a timber truck.^[3] The tugger weighed between 200 and 250 pounds. Immediately after loading the tugger onto the truck, Claimant dropped to one knee. Claimant told Mr. Striker he had hurt his low back. It was apparent to Mr. Striker that Claimant was in pain. The two men discussed the injury and concluded Claimant must have pulled a muscle.          2. Claimant's left-sided low back pain was most intense at the moment of injury, but slowly began to feel better. Claimant did not seek immediate medical care. He continued to work.          3. Claimant noticed left-sided groin pain within a week after the March 12 accident. He also noticed a bulge in his right groin area about six or seven weeks thereafter.4          4. Claimant saw his family practice physician, John Torquato, M.D., on June 4, 2012, primarily for testing related to Claimant's ongoing thyroid condition. On this visit, Claimant mentioned his lifting accident, and the fact he thought he might have a hernia from it. Dr. Torquato found a large right-sided reducible inguinal hernia, and a left-sided inguinal bulge, but not an actual hernia. Dr. Torquato referred Claimant to surgeon Timothy Quinn, M.D., for hernia evaluation.          5. Surety denied Claimant's injury claim, but Claimant, through his personal health insurance, eventually proceeded to surgery on November 6, 2012, with Dr. Quinn, to repair his bi-lateral hernias. The surgery was successful.          6. On or about November 26, 2012, Claimant returned to work, at first with light-duty restrictions. Claimant had been working his regular job until the date of surgery. On December 6, 2012, Claimant was laid off.          7. Despite attempting to find other work, Claimant was unemployed from December 6, 2012 until he found a fabrication job in November 2014 with Bunker Hill Mining in Kellogg.          8. While Claimant's hernias by-and-large healed with only occasional uncomfortable sensations, he continued to complain of issues concerning his low back and left hip. He told his new employer about these issues, and when heavy lifting is required, he utilizes the help of a younger co-worker. With that accomodation, he is able to perform his current work duties.          9. Claimant currently complains of left hip, lumbosacral, and sacroiliac (SI) joint pain and discomfort, all of which he attributes to the industrial accident of March 12, 2012.          DISCUSSION AND FURTHER FINDINGS          Causation          10. Claimant has the burden of proving, by a preponderance of the evidence, all facts essential to recovery to his claims. He carries the...