Lewis v. Conagra Food Lamb Weston, Inc., 050115 IDWC, IC 2012-007508
| Case Date | May 01, 2015 |
| Court | Idaho |
a. Attorney fees pursuant to Idaho Code § 72-804 for unreasonable failure and/or refusal to authorize the recommended prosthesis; and/or
b. Sanctions pursuant to JRP Rule 16 amounting to $163.71.CONTENTIONS OF THE PARTIES It is undisputed that Claimant is entitled to a prosthetic device as a result of her March 25, 2012 industrial injury resulting in an above-the-elbow right arm amputation. Claimant contends that she is entitled to a hybrid[1] right arm prosthetic because her treating physician has recommended it, Claimant wants it, and Defendants have produced no medical evidence to rebut that recommendation. She also seeks attorney fees pursuant to Idaho Code § 72-804 due to Defendants' unreasonable delay in adjusting her claim, in which she first sought approval on February 18, 2014, and due to Defendants' unreasonable denial in June, 2015 of her request for a hybrid prosthetic in favor of a fully body-powered device. Defendants counter that Claimant's own prosthetist ultimately recommended a fully body-powered prosthetic, in addition to a hybrid, so approval of that device was reasonable. Further, Claimant's weakened right residual upper extremity requires additional physical therapy before she will be able to utilize the hybrid prosthetic, so denial of her request for that prosthetic was also reasonable. Defendants dispute that attorney fees are due, arguing that Claimant's prosthetist initially, erroneously, recommended a fully electronic prosthetic, so Defendants' delay and ultimate failure to approve that recommendation was not unreasonable. Further, due to Claimant's ongoing upper right residual limb problems, their denial of a hybrid limb was not unreasonable and cannot form the basis for an award of attorney fees. EVIDENCE CONSIDERED The record in this matter consists of:
1. The testimony of Claimant and Jerry Nelson, CPO, taken at the hearing.
2. The December 16, 2014 Affidavit of Rick D. Kallas and attached exhibits.
3. Claimant's Exhibits ("CE") 1 through 19, admitted at the hearing.
4. Defendants' Exhibits ("DE") 1 and 2, admitted at the hearing.FINDINGS OF FACT After considering the above evidence and the arguments of the parties, the Referee submits the following findings of fact and conclusions of law for consideration by the Commission. CHRONOLOGY 1. Preexisting conditions. When she was 19 years of age, Claimant contracted septic pneuomonia, which resulted in the removal of the lower lobe of her left lung. She was also in a car accident which resulted in surgeries to fuse part of her lumbar spine and to repair her right knee. 2. Education and vocational experience. Claimant attended high school, but she did not graduate. She initiated testing to acquire her GED and, at one time, was one test away from achieving it. She has been employed since she was 17 years of age, at various unskilled and labor-intensive positions. At the time of her industrial injury, she was the primary breadwinner for her family and extended family, which included her unemployed husband and three young children, as well as her pregnant stepsister and her stepsister's boyfriend. 3. Industrial injury. On March 25, 2012, at age 25, Claimant was cleaning a conveyor at ConAgra when it was suddenly activated. Caught off-guard, her dominant (right) arm became lodged in the machinery, resulting in the immediate traumatic amputation above the elbow and degloving of her right upper arm. 4. Initial treatment and claim adjustment. Claimant was flown by helicopter to the University of Utah Hospital, where she was taken to surgery for possible replantation of her amputated limb. Unfortunately, replantation was not an option due to the severity of her wound. Thereafter, Claimant received treatment to help her heal, rehabilitate, and control her pain from Mark Greenfield, M.D., and Weldon Richardson, P.A., under the supervision of Holly Zoe, M.D. Claimant soon developed conditions including but not limited to phantom limb pain, depression, anxiety, headaches, insomnia, stress, as well as paresthesias and weakness in her right upper extremity. These conditions were treated with medications including narcotic pain relievers. 5. Surety accepted the claim. 6. On May 31, 2012, after Claimant appeared at an emergency room seeking pain medications, Surety's third party adjustor ("Sedgwick") notified Claimant by letter that she should direct all requests for medication refills to Mark Greenfield, M.D., and that she had been approved for an evaluation by Dr. Glogorivich regarding the psychological aspects of her injury. 7. On June 26, 2012, Sedgwick advised Claimant by letter that she could reschedule a missed appointment with Idaho Prosthetic and Orthotics to begin the fitting process. 8. On July 2, 2012, Sedgwick again wrote to Claimant because she had again gone to an emergency room to obtain pain medications. Claimant was informed that the emergency room visit would not be covered. 9. On July 23, 2012, Tracey McGee, medical secretary with University of Utah Healthcare, wrote a letter to Sedgwick, responding to a request for opinions from Eleazar Ley, M.D., who had previously treated Claimant for her amputation. Ms. McGee advised that Dr. Ley had left the practice and directed Sedgwick to his last chart note, dated June 8, 2012, in which he had prescribed a prosthesis fitting and follow up as needed. 10. On August 20, 2012, Claimant's attorney wrote to Sedgwick, advising that he represented Claimant and all correspondence must be directed to him, among other things. 11. On August 21, 2012, Sedgwick acknowledged, by letter, Claimant's attorney appearance and request for documents. A week later, Sedgwick provided Claimant with a mileage payment in anticipation of her upcoming Independent Medical Evaluation ("IME"). 12. An IME was conducted by Brian Tallerico, M.D., on September 14, 2012 in which he:
∙ Deemed Claimant medically stable.
∙ Assessed permanent partial impairment of 57% of the whole person and restricted all use of Claimant's upper right extremity.
∙ Released Claimant to work at any job she can do that requires use of only her left upper extremity, which excludes production-type work.
∙ Recommended psychiatric treatment.
∙ Acknowledged that Claimant would need a prosthetic, but recommended delaying this procedure because Claimant reported she was not psychologically ready, and also because she was having trouble with blisters and scabs on her residual limb which would impede the use of a prosthetic.
∙ Strongly opined that the "astronomical dose of opioid medications including 90 milligrams of morphine a day and multiple Percocet" that Claimant was taking was unsustainable and...
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