Kobrock v. The Franklin Group, 012519 IDWC, IC 2015-009878

• Case Date: January 25, 2019
• Court: Idaho

TERRY KOBROCK, Claimant, v. THE FRANKLIN GROUP, Employer, and ALASKA NATIONAL INSURANCE COMPANY, Surety, Defendants. Nos. IC 2015-009878, IC 2016-025830, IC 2017-031421 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho January 25, 2019           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           Thomas P. Baskin, Chairman.          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Industrial Commission assigned this matter to Referee Douglas A. Donohue who conducted a hearing in Twin Falls on April 4, 2018. Dennis Petersen represented Claimant. Emma Wilson represented Employer and Surety. The parties presented oral and documentary evidence. The record was held open for submission of exhibit V, an updated CV, which was later received without objection from either party. The parties took post-hearing depositions and submitted briefs. The case came under advisement on October 16, 2018. This matter is now ready for decision. 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          The issues to be decided according to the Notice of Hearing are:

1. Whether Claimant has complied with the notice and limitations requirements set forth in Idaho Code §§ 72-701 through 72-706 and whether they are tolled under § 72-604;

2. Whether the condition for which Claimant seeks benefits was caused by the alleged industrial accident;

3. Whether Claimant is medically stable and, if so, on what date;

4. Whether and to what extent Claimant is entitled to:

a) Temporary disability and

b) Medical care.

         All other issues are reserved.          At hearing, issue 1 above was limited to a September 21, 2016 event. The temporary disability issue arises only if Claimant is not medically stable, or has become stable after the date opined by Dr. Bauer. The medical care issue relates to treatment after Dr. Bauer’s date of medical stability and includes a change of physician request to recognize Dr. Blair as a treater.          CONTENTIONS OF THE PARTIES          Claimant contends that he suffered three compensable accidents/injuries while in the employ of Employer. The first occurred on April 14, 2015 when Claimant experienced the onset of sudden low back pain while stocking shingles. Claimant contends that his symptoms resolved with treatment, and that he was symptom-free for a period of months prior to his second accident of September 1, 2016. On that date, Claimant contends that he suffered a low back injury when lifting and carrying a 5/8 inch full size sheet of plywood. The parties acknowledge that timely notice and claim were made for this accident. Finally, Claimant contends that on September 21, 2016, he suffered a third low back injury while loading a length of sheet rock into a customer’s pickup. He claims to have immediately notified his supervisor of this accident. As a consequence of the September 2016 accidents, Claimant contends he has suffered injury to his lumbar spine for which he has required medical treatment. He denies that he is at a point of medical stability and contends that he requires further evaluation in order to assess his need for additional medical treatment, to include possible surgery. Claimant requests that Benjamin Blair, M.D., be recognized as his treating physician for the purpose of performing such additional evaluation. Claimant contends that, prospectively, he may be entitled to time loss benefits during treatment, or following surgery.          Defendants acknowledge that timely notice of injury and claim for benefits was made for the accidents of April 14, 2015 and September 1, 2016. However, Defendants deny timely notice and claim for the accident of September 21, 2016. Further, Defendants contend that Claimant has failed to demonstrate that Defendants were not prejudiced by Claimant’s failure to give timely notice. Defendants contend that Claimant has not suffered any permanent injury to his lumbar spine as a consequence of the subject accidents. They acknowledge, at most, that Claimant has suffered a temporary aggravation of a pre-existing lumbar spine condition, from which he has fully recovered. Claimant is not entitled to further medical care and is not entitled to a change of physician.          EVIDENCE CONSIDERED          The record in the instant case included the following:

1. Oral testimony at hearing of Claimant;

2. Joint exhibits A through V (Exhibit V was later supplied by the parties and can be found inserted within Exhibit Q.);

3. Post-hearing depositions of R. David Bauer, M.D., and Benjamin Blair, M.D.

         FINDINGS OF FACT          1. At all times relevant hereto, Claimant was employed by Franklin Building Supply at Employer’s Burley location, and he was so employed as of the date of hearing.          2. Claimant has suffered numerous industrial accidents over the years, as set forth at JE T. Claimant does not appear to have suffered any work-related injury to his low back until the accident of April 14, 2015. On that date, while stocking shingles, he turned and felt something pinch in his low back. (Tr. 24/19-25/6). Claimant contends, and Employer does not dispute, that this mishap was immediately reported to Employer.          3. Claimant sought medical treatment at Riverview Urgent Care where he was seen on April 15, 2015, with complaints of pain in the low back radiating to the left lower extremity. (JE K at 1). Claimant was diagnosed with low back pain and referred to Burley Physical Therapy where he was evaluated by Nick Greenwell, MPT, on April 20, 2015. (JE L). To Mr. Greenwell, too, Claimant complained of low back and left lower extremity pain. By April 22, 2015, Claimant’s symptoms were somewhat improved, but by April 27, 2015, his complaints had increased. He rated his pain at 9/10 and described his pain as a dull ache which ran down his leg. (JE L at 15). These symptoms appear unchanged as of April 29, 2015. (JE L at 17). However, by May 4, 2015, Claimant reported improvement in symptoms with pain at a level 5/10. Similar complaints were reported on May 6, 2015.          4. Claimant returned to Riverview Urgent Care and Medical on May 11, 2015 with complaints of low back pain radiating into the left and now right lower extremities. On exam, straight-leg raise was positive bilaterally. Light-duty restrictions were continued and Claimant was directed to continue with physical therapy. Physical therapy notes from May 11, 2015 and May 13, 2015, reflect continued improvement. On May 13, 2015, it was noted that Claimant’s left leg was slowly gaining strength and he had less back pain. Although further physical therapy was evidently contemplated, Claimant was not seen again at Burley Physical Therapy until after the September 2016 accidents.          5. On May 26, 2015, Claimant was again seen at Riverview Urgent Care and Medical. He reported his complaints as moderate, or unchanged since his visit of May 11, 2015. He continued to complain of low back pain with radiation of symptoms into his bilateral lower extremities. Though he continued to have subjective complaints, he requested a work release since he “needed to go back to full duty.” (See JE K at 5-D). As of May 26, 2015 Claimant was released to work without restrictions.          6. The record does not reflect that Claimant sought any care for his back between May 26, 2015 and September 21, 2016.          7. Claimant testified that he made a full recovery from the accident of April 14, 2015, and that his low back and lower extremity symptoms resolved completely prior to the accident of September 1, 2016. (Tr. 59/19-61/4).          8. As noted, Defendants do not contest the timeliness of notice and claim in connection with the April 15, 2015 accident/injury.          9. Claimant suffered a second industrial accident on September 1, 2016 while loading plywood into a customer’s horse trailer. Claimant testified that he immediately reported this accident to Bart Hutchinson, the Yard Manager. According to Claimant, Mr. Hutchinson completed a supervisor’s accident report. Claimant did not seek immediate medical treatment for this accident, hoping that it would resolve on its own. (Tr. 29/18-24). Between September 1, 2016 and September 21, 2016, Claimant described his complaints as low back pain with pain going down the back of his legs “every now and then” to “quite a bit.” (Tr. 31/13-32/6).          10. Claimant testified that he suffered his third industrial accident...