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...