Killmar v. Tri Builders, Inc., 033015 IDWC, IC 2005-505241

• Case Date: March 30, 2015
• Court: Idaho

ROBERT H. KILLMAR, Claimant, v. TRI BUILDERS, INC., Employer, and STATE INSURANCE FUND, Surety, Defendants. Nos. IC 2005-505241, 2007-031706 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho March 30, 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 Michael E. Powers, who conducted a hearing in Lewiston on October 16, 2014. Claimant was present along with his attorney, Ned A. Cannon, of Lewiston. Mark T. Monson of Moscow represented Employer/Surety (Defendants). Oral and documentary evidence was presented. The record remained open for the taking of one post-hearing deposition. The parties submitted post-hearing briefs and this matter came under advisement on February 3, 2015.          ISSUES          By agreement of the parties, the issues to be decided are:

1. Claimant's entitlement to total temporary disability benefits (TTDs) from April 21, 2011 through February 25, 2013.

2. Claimant's entitlement to an award of attorney fees for Defendants' unreasonable denial of the TTD benefits referenced above.

         CONTENTIONS OF THE PARTIES          Claimant contends that his treating physician and a Defense-requested IME physician erroneously declared him at MMI on or around April 21, 2011. The two physicians did not know at the time that a screw inserted during a lumbar fusion surgery had broken and the surgery had to be redone. Claimant reasons that because he has been in pain since his original lumbar fusion, the pain must have been due to the broken screw and he was never medically stable and is owed TTD benefits during that time frame. Claimant further asserts that Defendants' denial of the contested TTD benefits was unreasonable and an award of attorney fees is warranted.          Defendants counter that the only available objective evidence at the time Claimant was declared at MMI showed an intact union. When subsequent diagnostic testing revealed a broken screw and a non-union, TTDs were once again commenced. No medical provider could say when the screw broke, so it is only reasonable that TTDs begin when the screw was objectively discovered. As Defendants did nothing unreasonable in stopping and restarting Claimant's TTD benefits, Claimant is not entitled to attorney fees.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The testimony of Claimant and his wife taken at the hearing.

2. Claimant's Exhibits (CE) 1-6, admitted at the hearing.

3. Defendants' Exhibits (DE) A-C, admitted at the hearing.

4. Defendants' Exhibit D, admitted by stipulation post-hearing.

5. The post-hearing deposition of Rodde Cox, M.D., taken by Claimant on November 14, 2014.

         After having considered all 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          1. Claimant was 63 years of age and residing near Kamiah at the time of the hearing. He has two years of college, but no degree. At the time of his accident, he was a working foreman for Tri Builders, whose primary work was building grain elevators.          2. In early September 2007, Claimant reported that he had hurt his back while operating a skid steer spreading gravel over a period of a few days. Defendants accepted his claim and began paying TTDs.          3. On November 9, 2010, Claimant underwent an L5-S1 lumbar fusion at the hands of neurosurgeon Donald S. Soloniuk, M.D.          4. The surgery alleviated Claimant's radicular symptoms, but not his back pain.          5. Dr. Soloniuk released Claimant on April 8, 2011, noting that Claimant had been making slow but progressive improvement. "Overall as he is doing well I am discharging him from my...