Luna v. LKQ Foster Auto Parts, Inc., 012717 IDWC, IC 2012-024093

• Case Date: January 27, 2017
• Court: Idaho

CHRISTOPHER LUNA, Claimant, v. LKQ FOSTER AUTO PARTS, INC., Employer, and ACE AMERICAN INSURANCE COMPANY Surety, Defendants. No. IC 2012-024093 Idaho Workers Compensation Before The Industrial Commission of The State of Idaho January 27, 2017           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           Thomas E. Limbaugh, Chairman           INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee John C. Hummel, who conducted a hearing in Boise on May 3, 2016. Bryan S. Storer represented Claimant, Christopher Luna. R. Daniel Bowen represented Employer, LKQ Foster Auto Parts, Inc. ("LKQ"), and Surety, Ace American Insurance Company, collectively "Defendants." The parties presented oral and documentary evidence at hearing and took post-hearing depositions. The matter came under advisement on January 9, 2017.          ISSUES          By agreement of the parties at a pre-hearing telephone conference held on April 28, 2016, and at hearing, the issues are as follows:

1. Whether and to what extent Claimant is entitled to medical care;

2. Whether and to what extent Claimant is entitled to temporary partial and or temporary total disability benefits (TPD/TTD); and

3. Whether Claimant is entitled to attorney fees pursuant to Idaho Code § 72-804. All other issues are reserved.

         CONTENTIONS OF THE PARTIES          Claimant had an accident in LKQ's auto salvage yard on September 13, 2012. An automobile he was dismantling for spare auto body parts shifted on its mounts, injuring his back, neck, and right knee. Claimant received treatment covered by Surety until November 27, 2012, when he requested a full release and his treating physician determined that he was at maximum medical improvement ("MMI") with no impairment rating. In January 2015, Claimant contacted Surety and requested a return to treatment. Further treatment covered by Surety then ensued until Claimant received a recommendation for cervical surgery that Surety denied as unreasonable.          Claimant seeks medical coverage of his cervical spine condition and specifically claims entitlement to a two-level cervical disk replacement surgery as medically necessary and reasonable. He also seeks temporary disability benefits from February 29, 2016 until he reaches MMI following surgery. Claimant further alleges that the denial of the requested surgery was unreasonable, justifying an award of attorney fees.          Defendants dispute that Claimant's need for cervical surgery is causally related to the industrial accident. Defendants further dispute that cervical disk replacement surgery is reasonable and that Claimant is entitled to temporary disability benefits. Defendants aver that they have reasonably adjusted the claim and that attorney fees are not owed.           EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The Industrial Commission legal file;

         2. Claimant's Exhibits ("CE") 1 through 14, admitted at hearing, and Exhibit 15 admitted by post-hearing order dated November 16, 2016;          3. Defendants' Exhibits ("DE") 1 through 16, admitted at hearing; 4. The testimony of Claimant taken at the hearing and at his deposition held on August 18, 2015; and          5. The post-hearing deposition testimony of the following witnesses: Daniel Marsh, M.D., taken on May 18, 2016; Edward Wallace, taken on May 18, 2016; William Beringer, M.D., taken on August 12, 2016; and Paul Montalbano, M.D., taken on August 24, 2016.          OBJECTIONS          All pending objections raised in the post-hearing depositions are overruled. After having considered the above evidence and the arguments 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's Background; Education. Claimant was 30 years old and resided in Caldwell at the time of hearing. Claimant was born and raised in Nampa. He attended high school in Nampa and Othello, Washington. During high school, Claimant was active in athletics, including wrestling, cross country racing, track, and football, but did not sustain any injuries from those activities. He graduated from Nampa High School in 2004. Following high school, Claimant enrolled in a two-year medical assistant program at the Milan Institute, from which he received a certificate, however he did not pursue a career in health care. In May 2011, Claimant graduated from a two-year aircraft maintenance program at Idaho State University. He obtained an associate of arts degree at the College of Western Idaho ("CWI") in May 2015. After that, he transferred to Boise State University ("BSU") to work on a bachelor's degree in political science; he attended classes at BSU during one semester in the summer of 2015. Tr., 11:8-13:18; 70:18-23; 46:15-17; 46:25-47:22.          2. Vocational History. Claimant's first job was delivering newspapers when he was 12 or 13 years old. As a teenager he worked on farms and in a restaurant. Claimant also had positions with Subway and Nampa Parks and Recreation Department. After graduating from the aircraft maintenance program, he applied his training by working as an aircraft mechanic for Greg Poe Air Shows and AvCenter. Id. at 13:19-15:11; 47:21-25.          3. Prior Injuries and Medical History. In 1999, when he was 13 years old, Claimant had a mild low back injury. He was jumping on a trampoline when the injury occurred. The back strain resolved after a week. He received minor medical attention at Mercy Medical Center in Nampa but no further treatment. Id. at 15:15-18. Cl. Dep., 34:1-20.          4. Claimant sprained his ankle on an unspecified date after his 1999 back injury. The injury was a mild one. He underwent physical therapy to recover from it. Tr., 15:22-25.          5. On September 14, 2007, Claimant injured his left shoulder in a work accident at his maintenance job with the Nampa Department of Parks and Recreation. While completing some concrete work, Claimant was using a 2 x 4, pulling it toward him to even out the concrete, when he felt a pulling sensation and then pain in his left shoulder. An X-ray and MRI revealed a superior labral tear with a paralabral cyst. On November 8, 2007, Clark Robinson, M.D., opined that Claimant's left shoulder condition likely had been developing for some time but that he may have aggravated it while at work. Dr. Robinson recommended a shoulder arthroscopy and slap lesion debridement. He performed that surgery on November 27, 2007. While Claimant initially recovered well from the procedure, he returned to Dr. Robinson in 2008 with continued complaints of shoulder pain. A follow-up MRI showed a persistent SLAP tear with biceps tear. On July 1, 2008, Dr. Robinson performed a diagnostic arthroscopy and debridement of Claimant's left SLAP tear and biceps tenodesis. Claimant recovered well from this second surgery; he underwent a course of physical therapy to rehabilitate. On September 18, 2008, Dr. Robinson declared Claimant at MMI, with a 2% upper extremity impairment (1% whole person impairment), and released him to return to full work. DE 3:66-84; Tr., 15:18-21, 16:12-17. Claimant felt that his shoulder "has done pretty well since then" and that he did not have any physical limitations related to it prior to his industrial accident. Tr., 16:21-17:1.          6. Subject Employment. LKQ operated a salvage business and maintained an automobile junkyard. Claimant worked for LKQ following his employment with AvCenter. His duties included extracting auto parts from salvaged vehicles. This involved cutting sections out of automobiles and pulling them for use by auto body shops. Id. at 71:3-4; Cl. Dep., 20:2-10.          7. Industrial Accident. On September 13, 2012, Claimant was at work in LKQ's salvage yard. He was cutting out a quarter panel section from a 2006 Toyota Corolla, which did not have its engine block and transmission in it. The vehicle was suspended approximately two and a half feet off the ground on tire rims. Claimant was standing up, leaning inside the door frame of the vehicle with his head inside the door, while he cut the quarter panel. The vehicle shifted on its car rim mount stands, fell toward the ground, knocked Claimant backwards, and partially pinned him. He folded on his knees to the ground as he tried to push himself out of the way. The vehicle struck his back and neck. Claimant's head was pinned under the roof of the vehicle and the vehicle's doorway came to rest...