Lubow v. Gentle Touch Home Health Care, Inc., 071416 IDWC, IC 2011-013307

• Case Date: July 14, 2016
• Court: Idaho

DIANNA LUBOW, Claimant, v. GENTLE TOUCH HOME HEALTH CARE, INC., Employer, and STATE INSURANCE FUND, Surety, and STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendants. No. IC 2011-013307 Idaho Workers Compensation Before the Industrial Commission of the state of Idaho July 14, 2016           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           R. D. Maynard, Chairman          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-referenced matter to Referee Michael E. Powers, who conducted a hearing in Boise on October 30, 2015. Claimant was present and represented by Nathan T. Gamel of Nampa. Clinton O. Casey of Boise represented Employer, Gentle Touch Home Health Care, Inc., and its Surety, State Insurance Fund. Kenneth L. Mallea of Meridian represented State of Idaho, Industrial Special Indemnity Fund (ISIF). Oral and documentary evidence was presented and the record remained open for the taking of two post-hearing depositions. This matter came under advisement on March 22, 2016 and is now ready for decision.          ISSUES          The issues to be decided as the result of the hearing are:

1. Whether Claimant is entitled to permanent partial disability benefits (PPD) and the extent thereof; and, if so,

2. Whether such disability should be apportioned pursuant to Idaho Code § 72-406;

3. Whether Claimant is totally and permanently disabled pursuant to the odd-lot doctrine; and, if so,

4. Whether ISIF is liable for a portion of that disability; and, if so,

5. Whether apportionment under the Carey formula is warranted.

         CONTENTIONS OF THE PARTIES          Claimant contends that she is an odd-lot worker due to a combination of pre­existing conditions and her last industrial accident.          Employer/Surety and ISIF argue that Claimant is not an odd-lot worker as her industrially related lumbar compression fractures healed with conservative treatment and she was released to return to her time-of-injury job once she reached MMI for that condition. Her pre-existing condition (diabetic neuropathy) was not a subjective hindrance to her employment and did not combine with her healed compression fracture to render her an odd-lot worker at the time she reached MMI. While she may have been so at the time of the hearing, such disability was caused by medical conditions occurring subsequent to her last industrial accident such as COPD and open heart surgery. ISIF argues that her disability should be established at the time she reached MMI rather than at the time of hearing because no nexus has been established between the intervening medical conditions and her last industrial accident.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The testimony of Claimant and her vocational expert, Terry Montague, adduced at the hearing.

2. Claimant's Exhibits (CE) A-L, admitted at the hearing.

3. Defendant SIF's Exhibits (DE) 1-36, admitted at the hearing.

4. ISIF Exhibit 1, admitted at the hearing. 5. The post-hearing deposition of Douglas Crum, taken by Employer/Surety on December 9, 2015. 6. The post-hearing deposition of William Jordan, taken by ISIF, also on December 9, 2015.

         All pending objections made during the course of taking the above-mentioned depositions are overruled.          After having considered all the above 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. Claimant was 56 years of age and residing with a friend in the Nampa/Caldwell area at the time of the hearing. Before that, she lived with her niece. Claimant "lived on the streets" for short periods of time in Nampa after having been declared at MMI from her last industrial accident.          2. Claimant has an 8^th grade education and has not obtained a GED.          3. Claimant's work history is mainly performing CNA-type duties in both assisted living facilities and in patients' homes. Claimant also has some limited cashiering experience in her past, but due to her 3^rd grade-level math skills, had problems with calculating change, she relied upon co-workers or the cash register itself to make the appropriate change.           4. On May 25, 2011, Claimant was transferring an in-home-care patient from her bed to a wheel chair when the patient "went dead weight" causing Claimant to feel a pop in her middle lower back.          5. Claimant immediately informed her supervisor of her accident and was sent to Employer/Surety's preferred provider and met with Stephan Martinez, M.D., who diagnosed compression fractures at L1 and L2, as well as degenerative disc disease at L5-S1. He also noted that Claimant's bilateral diabetic foot neuropathy had not increased in numbness since her accident. Dr. Martinez ordered an MRI, prescribed medications and returned Claimant to work with restrictions. He eventually referred Claimant to physiatrist Christian Gussner, M.D.          6. Claimant first saw Dr. Gussner on July 15, 2011 who also diagnosed compression fractures that he believed would heal with time. He also diagnosed low back pain, lumbar disc displacement and chronic peripheral neuropathy due to Claimant's diabetes mellitus type II. Dr. Gussner prescribed physical therapy and released Claimant to light-duty work.          7. Following a regimen of physical therapy that Claimant asserted did not help with her pain, Dr. Gussner found Claimant to be at MMI on April 16, 2012 after a repeat MRI revealed healed compression fractures. Claimant was still complaining of low back pain (9/10) and Dr. Gussner noted: "Initial pain probably related to mild L1 and L2 compression fractures which should have healed several months ago. The chronic and increasing pain in the lumbar, thoracic and now intermittently in the cervical region is unclear." DE 10, p. 31.           8. Using the 6^th Edition of the Guides to the Evaluation of Permanent Impairment, Dr. Gussner assigned a 7% whole person PPI rating related to Claimant's industrial accident with no apportionment. He indicated that no further diagnostic testing or treatment was necessary.          9. Dr. Gussner assigned the following permanent restrictions: medium duty activity restrictions with maximum lifting 50 pounds occasionally (less than 1/3 of shift); 25 pounds frequently (less than 2/3 of shift), and limited (less than 1/3 of shift) bending/twisting/stooping and as needed position changes. Id.          Vocational evidence:          10. Claimant first met with ICRD consultant Teresa Ballard on June 20, 2011 on referral from Surety to discuss ICRD services and sign a job site evaluation for her time-of-injury position. Previously, Ms, Ballard received a "work status report" that indicated: "The claimant may return to work with the following restrictions: No lifting greater than five pounds, no bending, twisting, push/pull greater than ten pounds. Do not operate machinery while on controlled substance, use ice, prescribed medications." DE 4, p. 13.          11. Ms. Ballard noted on her Initial Interview form under "Additional Medical History" that Claimant had no other physical handicap, chronic disease, or other disability that restricted or limited physical activities or working conditions: Diabetes controlled with diet; has no impact on her work. DE 4, p. 4 (Emphasis in original).          12. Claimant informed Ms. Ballard that she had approximately 22 years of CNA experience and managed a motel in Alaska for about a year. Ms. Ballard listed Claimant's transferrable skills as: "Very much likes helping the elderly and the health care field. Pleasant, very neat and expresses...