Lableu v. Challenger Companies, 112316 IDWC, IC 2013-013166

• Case Date: November 23, 2016
• Court: Idaho

RONALD A. LABLEU, Claimant, v. CHALLENGER COMPANIES, Employer, and LIBERTY NORTHWEST INSURANCE CORP. Surety, Defendants. No. IC 2013-013166 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho November 23, 2016           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           R.D. Maynard, Chairman.          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Alan Taylor, who conducted a hearing in Boise on April 25, 2016. Claimant, Ronald LaBleu, was present in person and represented by Matthew Andrew, of Nampa. Defendant Employer, Challenger Companies (Challenger), and Defendant Surety, Liberty Northwest Insurance Corporation, were represented by Matthew Vook, of Boise. The parties presented oral and documentary evidence. Post-hearing depositions were taken and briefs were later submitted. The matter came under advisement on August 11, 2016. Referee Taylor submitted proposed findings of fact and conclusions of law to the Commission for review. The Commission believes that the competing vocational opinions require further analysis. Additionally, the Commission believes it important to address the assertion that Claimant's disability rating should be paid exclusive of his impairment. For these reasons, the Commission adopts this decision in lieu of the Referee's.          ISSUES          The issues to be decided are:

1. Claimant's permanent partial impairment due to his industrial accident; and

2. Claimant's permanent partial disability due to his industrial accident.

         CONTENTIONS OF THE PARTIES          Claimant asserts he is entitled to permanent partial impairment of 15% of the whole person and permanent partial disability of 63.75% in excess of permanent impairment due to his industrial accident. He relies upon the vocational opinion of Terry Montague.          Defendants acknowledge Claimant's industrial accident but contend he is entitled to no more than 11% permanent partial impairment. Defendants argue Claimant is entitled to no disability in excess of impairment or, in the alternative, to 25% permanent partial disability inclusive of permanent impairment. They rely upon the opinion of Dr. Mary Barros-Bailey.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The Industrial Commission legal file;

2. The pre-hearing deposition testimony of Ronald LaBleu taken by Defendants on August 21, 2015;

3. The testimony of Claimant, his wife Tamara LaBleu, and Terry Montague taken at the hearing;

4. Claimant's Exhibits A through T and Defendants' Exhibits A through Q, admitted at the hearing.

5. The post-hearing deposition testimony of Mark Williams, D.O. taken by Claimant on May 13, 2016.

6. The post-hearing deposition testimony of Mary Barros-Bailey, Ph.D., taken by Defendants on May 31, 2016.

         All pending objections are overruled.          FINDINGS OF FACT          1. Claimant was born in 1954 in Pocatello. He resided in Quartzite, Arizona and was 61 years old at the time of the hearing. He has lived in Idaho, Wyoming, Colorado, Utah, New Mexico, Oregon, California, Montana, Louisiana, and Texas. He graduated from high school in Wyoming and attended the University of Wyoming briefly. He later attended community colleges in Colorado and California, but earned no degree.          2. Work and health history. After graduating from high school, Claimant worked bucking hay, and also worked in the concrete and oil industries in Wyoming. He moved to various states and worked as a dishwasher, railroad track layer, off-shore sandblaster and painter, automobile assembler, and commercial truck driver.          3. Since approximately 1995, Claimant has worked in the construction industry. He learned the pipefitter's trade and became a journeyman pipefitter. As a pipefitter he carried a 56-pound tool belt all day while working. Claimant worked for an excavation company in Salt Lake City. He laid major utility lines including storm sewers. He injured his back, was diagnosed with a ruptured disc, and received conservative treatment. He recovered and resumed work without restrictions. Claimant later took classes at a community college in Utah and trained as an electrician.          4. In 2006, Claimant began working in Boise for Challenger as an electrician's apprentice. He worked in new construction at Micron, pulling one-inch diameter wire and installing electrical fixtures for very large commercial fabricating equipment. He attended four years of electrical school at a community college and completed his training in 2008. Claimant then became a journeyman electrician. He averaged 40 hours per week performing industrial electrical work and earning approximately $30.00 per hour. He received vision and dental benefits and paid vacation.          5. At Micron, Claimant worked regularly in "hot boxes" on "hot panels," containing very high voltage "live" electrical panels in which the electricity could not be shut off. He wore full-body fire retardant protective gear to withstand arc flash while performing this hazardous work. Claimant also regularly worked pulling one-inch wire in the subfloor at Micron. The subfloor was from three to four feet high, thus Claimant had to crawl, bend, and twist to run wire and conduit through or in the subfloor. When not working in hot boxes or in the subfloor, Claimant frequently used ladders and was regularly on a ladder most of the day doing overhead electrical work.          6. Prior to 2013, Claimant sustained a number of injuries including the previously mentioned back injury, a hernia, and broken feet. However, he recovered from each injury and none permanently diminished his ability to work.          7. Industrial accident and treatment. On May 13, 2013, Claimant was working for Challenger lifting electrical fixtures and pulling wire at Micron. As he lifted and maneuvered an 11-foot long power pole assembly, his back "froze up" with pain and he dropped the assembly. This occurred at the end of his shift on the last day of his work week. The next day he could hardly get out of bed due to back pain. Claimant presented to his personal physician, Jay Hansen, M.D., who prescribed pain medications. The following day, Claimant's back pain worsened and he presented to the emergency room. Dr. Hansen referred Claimant to orthopedic surgeon Timothy Floyd, M.D., who ordered x-rays and a lumbar MRI. The MRI documented L3-4 disc herniation and extrusion with mass effect on the left L4 nerve root. Dr. Floyd restricted Claimant to light-duty work and prescribed physical therapy. Challenger gave Claimant light-duty work and he attended physical therapy; however, his back symptoms did not improve.          8. On December 10, 2013, Dr. Floyd performed L3-4 hemilaminotomy. Claimant's back pain improved; however, post-surgery he was found to have acute urinary retention. From the time he awoke after surgery he was unable to fully empty his bladder voluntarily. Claimant was diagnosed with neurogenic bladder. He was referred to urologist Cynthia Fairfax, M.D., and was discharged from the hospital with a catheter and a bag in place. Since his surgery he has had to self-catheterize three to five times daily. Self-catheterization is painful, time-consuming, and requires a clean area—to avoid urinary tract infection—to insert a catheter tube approximately 18 inches long. Claimant has ongoing bladder issues for which he sees Dr. Fairfax periodically.          9. In March 2014, Kevin Krafft, M.D., examined Claimant at Defendants' request. He rated Claimant's permanent impairment to his lumbar spine at 7% of the whole person and released him to return to work without restrictions. Claimant told Dr. Krafft that his left leg and his right foot were numb. Dr. Krafft documented Claimant's diminished left leg and right foot sensation but assured him that this would resolve within one to three years. Dr. Krafft gave no impairment rating for Claimant's neurogenic bladder condition.          10. Attempted return to work and relocation. In March 2014, Claimant returned to work at Challenger. Challenger helped him gradually progress until he was doing his usual heavy electrical work full-time. He noted continued left leg numbness from the knee down. As Claimant continued to perform his usual heavy work he experienced increased back and leg pain causing difficulty, particularly in pulling heavy wire, and had to rely upon co-workers for assistance in completing some of his assignments.          11. In...