AMANDA LARSEN, Claimant,
v.
WINCO HOLDINGS INC., Employer,
and
AMERICAN ZURICH INSURANCE COMPANY, Surety, Defendants.
No. IC 2014-020785
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
January 24, 2020
FINDINGS
OF FACT, CONCLUSION OF LAW, AND ORDER
Thomas
P. Baskin, Chairman.
INTRODUCTION
Pursuant
to Idaho Code sect; 72-506, the Idaho Industrial Commission
assigned the above-entitled matter to Referee Alan Taylor,
who conducted a hearing in Idaho Falls on. Claimant, Amanda
Larsen, was present in person and represented by Guy R.
Price, of Pocatello. Defendant Employer, Winco Holdings Inc.
(Winco), and Defendant Surety, American Zurich Insurance
Company, were represented by David P. Gardner, of Pocatello.
The parties presented oral and documentary evidence.
Post-hearing depositions were taken and briefs were later
submitted. The matter came under advisement on December 18,
2019. 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.
ISSUE
The
issues were narrowed at hearing. The sole issue presented is
whether, and to what extent, Claimant is entitled to
permanent disability based on all factors.
CONTENTIONS
OF THE PARTIES
All
parties acknowledge Claimant suffered an industrial accident
on May 18, 2014. Defendants accepted the claim and paid
medical, time loss, and permanent impairment benefits.
Claimant now asserts she is entitled to permanent disability
benefits of 36%. Defendants assert that Claimant is only
entitled to permanent disability of 17.8% inclusive of her
permanent impairment benefits already paid.
EVIDENCE
CONSIDERED
The
record in this matter consists of the following:
1. The Industrial Commission legal file;
2. The parties’ joint exhibits 1 through 10, admitted
at the hearing.
3. The post-hearing deposition of Delyn Porter, M.A., C.R.C.,
CIWCS, taken by Defendants on April 24, 2019.
Claimant’s
affidavit attached to Claimant’s Opening Brief filed
November 4, 2019, indicates her employment at Winco was
terminated post-hearing for what she considers contrived
reasons. This affidavit was submitted long after hearing and
the close of the evidentiary record in this case and will not
be considered. Defendants’ objection thereto is
sustained and their motion to strike Claimant’s
affidavit is hereby granted. All other outstanding objections
are overruled and motions to strike are denied.
FINDINGS
OF FACT
1.
Claimant was born in 1966. She was 53 years old and resided
in Pocatello at the time of the hearing. She is right-handed.
2.
Background. Claimant was born and raised in Idaho Falls where
she graduated from high school in 1984. She attended Idaho
State University for one year. She worked as a hotel front
desk clerk and as a cashier at a plumbing business. In
approximately 1990, Claimant completed a ten-month
cosmetology training program and was certified as a nail
technician. Thereafter she manicured nails for three or four
years in a salon and then in her own shop until approximately
1995. Claimant then worked as a house painter and later as a
part-time inventory clerk.
3. In
2001 Claimant commenced working for Winco. She worked for
nine years in the deli department and then ceased her
employment at Winco, expecting to move out of state. She did
not move, and instead was hired at Moyle Petroleum where she
worked as a convenience store cashier and assistant store
manager from 2010 until 2012. She prepared to become the
store manager.
4. In
2012, Claimant returned to work at Winco as a cashier. She
transitioned to grocery floor work and became a floor
supervisor and thereafter was promoted to lead clerk on the
freight crew. She had no lifting restrictions and regularly
lifted cases of canned goods in excess of 50 pounds. As
freight crew lead clerk, she was a working supervisor
responsible for serving the produce, bulk foods, deli,
bakery, and grocery departments. Her goal was to become a
Winco store manager.
5.
Industrial accident and treatment. On May 18, 2014, Claimant
was at work. She slipped on ice on the freezer floor and fell
engaging an electric pallet jack that lurched forward yanking
her left arm forward as she fell backward to the floor. She
experienced immediate left shoulder burning but finished her
shift and reported the incident. At the time of her accident,
Claimant was working from 40 to 60 hours per week and earning
approximately $12.15 per hour.
1 She received medical, dental, and
vision insurance and participated in Winco’s employee
stock ownership plan (ESOP).
6.
Claimant continued working her usual shifts but her shoulder
pain increased prompting her to seek medical treatment from
Nicole Manning, PA-C, on June 10, 2014. Conservative medical
treatment, including physical therapy, provided no
significant lasting benefit. A left shoulder MRI revealed a
left rotator cuff tear. On October 20, 2014, Nathan
Richardson, M.D., performed arthroscopic left rotator cuff
repair. Claimant experienced ongoing neck pain. She received
diagnostic cervical medial branch block and cervical epidural
steroid injections for her persisting neck symptoms. After
one injection, she developed a staph infection in her left
shoulder resulting in the failure of a tendon anchor placed
during her first surgery and requiring prompt hospitalization
and an arthroscopic left shoulder lavage, debridement, and
rotator cuff repair on December 18, 2014. Later Dr.
Richardson considered a brachial plexus release; however,
Claimant declined the procedure.
7.
After recovering from her shoulder surgeries, Claimant
returned to work at Winco as a lead clerk. She was terminated
by Winco over a timecard dispute, but appealed her
termination to a Winco employee board and was reinstated. Due
to the friction between Claimant and an assistant manager
over the timecard dispute, Claimant elected not to return to
her lead clerk position and instead accepted a position at
the customer service counter requiring little reaching or
lifting and only occasional cashiering.
8. In
May 2018, Claimant underwent a total right knee arthroplasty
due to non-industrial causes. After recovering she returned
to work at Winco with an accomodation allowing her to sit
rather than stand constantly at the customer service counter.
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