Lopez v. Anheuser-Busch Companies, 061616 IDWC, IC 2010-022110

Case DateJune 16, 2016
CourtIdaho
CONCEPCION LOPEZ, Claimant
v.
ANHEUSER-BUSCH COMPANIES Employer
and
INDEMNITY INSURANCE COMPAN OF AMERICA, Surety, Defendants.
No. IC 2010-022110
Idaho Workers Compensation
Before the Industrial Commission of the state of Idaho
June 16, 2016
          ORDER           R.D. Maynard, Chairman          Pursuant to Idaho Code § 72-717, Referee Brian Harper submitted the record in the above-entitled matter, together with his recommended findings of fact and conclusions of law, to the members of the Idaho Industrial Commission for their review. Each of the undersigned Commissioners has reviewed the record and the recommendations of the Referee. The Commission concurs with these recommendations. Therefore, the Commission approves, confirms, and adopts the Referee's proposed findings of fact and conclusions of law as its own.          Based upon the foregoing reasons, IT IS HEREBY ORDERED that:          1. Claimant has proven her decompressive lumbar laminectomy and fusion surgery of January 10, 2012, was caused in part by her industrial accident of September 1, 2010 and partly by her pre-existing lumbar degenerative condition.          2. Claimant has proven a right to reimbursement for reasonable and necessary medical care associated with treatment and surgery of her lumbar spine under Idaho Code § 72-432(1) from November 3, 2011 until August 27, 2012, when she reached MMI. Reimbursement of such past medical costs is subject to payment at full invoiced amount under Neel v. Western Construction, Inc., 147 Idaho 146, 206 P.3d 852 (2009). Claimant shall notify the Commission of her plan for resolving the disputed past medical bills awarded in this decision.          3. Claimant has proven she is entitled to TTD benefits from January 10, 2012 through August 27, 2012, when Dr. McDonald released her to full-duty work.          4. Claimant has proven she is entitled to 2 percent whole person permanent partial impairment (PPI) benefits for her covered lumbar spine industrial injury.          5. Claimant has failed to prove she is entitled to permanent disability benefits in excess of her permanent partial impairment (PPI) rating.          6. The issues of total permanent disability under the odd-lot doctrine and apportionment under Idaho Code § 72-406 are moot.          7. Pursuant to Idaho Code § 72-718, this decision is final and conclusive as to all matters adjudicated.           Thomas E. Limbaugh, Commissioner, Thomas P. Baskin, Commissioner Assistant Commission Secretary          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           Brian Harper, Referee          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Brian Harper, who conducted a hearing in Coeur D'Alene, Idaho, on July 9, 2015. Claimant was represented by Michael Kessinger, of Lewiston. Eric Bailey, of Boise, represented Anheuser Busch Companies ("Employer"), and Indemnity Insurance Company of America ("Surety"), Defendants. Brenda Kehoe served as an interpreter. Oral and documentary evidence was admitted. Post-hearing depositions were taken and the parties submitted post-hearing briefs. The matter came under advisement on April 25, 2016.          ISSUES          The issues to be decided are:1          1. Whether Claimant's condition is due in whole or in part to a pre-existing and/or subsequent injury/condition;          2. Whether and to what extent Claimant is entitled to the following benefits:
a. Medical care;
b. Temporary total disability benefits, (TTD);
c. Permanent Partial Impairment (PPI); and
d. Permanent Partial Disability in excess of impairment, including total permanent disability pursuant to the odd-lot doctrine;
         3. Whether Claimant is totally and permanently disabled; and          4.Whether apportionment is applicable pursuant to Idaho Code § 72-406.          CONTENTIONS OF THE PARTIES          On September 1, 2010, Claimant fell while working within the course and scope of her employment. She claims to have permanently aggravated her pre-existing lumbar spine degenerative condition, which necessitated surgery. She has not, and cannot, work since. She is totally disabled under the odd-lot doctrine. Claimant argues she is entitled to reimbursement of all medical costs associated with her industrial accident. She is also entitled to temporary disability benefits from the date of the accident through August 27, 2012, and total permanent disability benefits thereafter.          Defendants argue Claimant has been paid all benefits to which she is entitled. Her lumbar surgery was not due to her industrial accident, and she is not entitled to TTD benefits. Claimant suffered no permanent disability above her 2% impairment rating provided by two physicians. Claimant failed to prove "odd-lot" status. If a disability award is made, Defendants are entitled to apportionment for Claimant's non-industrial conditions, which account for much of her disability.          EVIDENCE CONSIDERED          The record in this matter consists of the following:          1. Claimant's testimony, taken at hearing;          2. The testimony of Employer representative Edward Charles Atkins, Jr., taken at hearing;          3. Joint Exhibits (JE) 1 through 16, admitted at hearing;          4. The post-hearing deposition transcript of John McNulty, M.D., taken on October 5, 2015;          5. The post-hearing deposition transcript of Michael Ludwig, M.D., taken on October 14, 2015;          6. The post-hearing deposition transcript of Douglas Crum, taken on November 4, 2015; and          7. The post-hearing deposition transcript of William Jordan, taken on November 4, 2015.          All objections preserved during the depositions are overruled.          Having considered the 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. At the time of hearing, Claimant was a fifty-two year-old married woman living in Bonners Ferry, Idaho with her husband, and on occasion, an adult son. Claimant was born in Mexico, and has been living in the United States since 1991. Her ability to speak and understand English is poor, but she does have a twelfth-grade education from Mexico and a GED she obtained in the United States. Claimant is able to read and write in Spanish (she took the GED test in Spanish), and can do basic math. She is also capable of using a PC to input data.          2. Claimant ran an embroidery machine in Mexico, putting letters and designs on clothing. Since coming to the U.S., Claimant has worked for Employer, primarily at its "Backwoods Farm" hop farm near Bonners Ferry.2          3. Claimant's first position with Employer was working as a teacher's aide in its day care facility at the hop farm. She remained in that assignment from 1993 into 1997.          4. In 1998, Claimant began working in Employer's hop fields at the farm. The work was full-time but seasonal. The "season" was about six to seven months long, six or seven days per week, typically between eight to ten hours per day.          5. Claimant was a hop vine trainer in the spring; the work was often done from ground to knee level.3 She also performed other tasks, such as washing trucks, or various odd jobs. Later in the season, Claimant was involved in the hop harvest. During harvest, she would pick up vines from the ground that the harvesting machine cut and pull vines the machine missed. The vines first had to be cut into segments, and then thrown into harvest trucks. She also cleaned inside the harvest buildings, and for some years, would clean the harvest machinery.          6. In 2005 and 2006, Claimant went to St. Louis, MO, to work for Mr. Busch personally, cutting his lawn and working in his garden. Claimant was not comfortable in that job, and returned to Backwoods Farm after her stint in Missouri.          7. In December 2007, Claimant had low back surgery in Mexico. The records of that procedure were not available for review. That surgery was not industrially-related.          8. Claimant returned to work at Backwoods Farm for the 2008 season. She did not train vines that year. Instead, Employer had her performing a record...

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