Mason v. Little Valley Elk Ranch, Llc, 122315 IDWC, IC 2009-003466

• Case Date: December 23, 2015
• Court: Idaho

DAVE M. MASON, Claimant, v. LITTLE VALLEY ELK RANCH, LLC, Employer, and IDAHO STATE INSURANCE FUND, Surety, Defendants. No. IC 2009-003466 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho December 23, 2015           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           R.D. Maynard, Chairman          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Alan Taylor, who conducted a hearing in Twin Falls, Idaho on May 28, 2015. Claimant, Dave Mason, was present in person and represented by Clark Jordan, of Salmon. Defendant Employer, Little Valley Elk Ranch, LLC, (Little Valley), and Defendant Surety, Idaho State Insurance Fund, were represented by Jon Bauman, of Boise. The parties presented oral and documentary evidence. No post-hearing depositions were taken. Briefs were submitted and the matter came under advisement on August 21, 2015.          Pursuant to Idaho Code § 72-506(2), the Commission is authorized, indeed, required, to approve and confirm a proposed decision before it can be deemed a finding, order, decision or award of the Commission. The statute was recently construed in Lorca-Merono v. Yokes Washington Foods, Inc., 137 Idaho 446, 50 P.3d 461 (2002). There, the issue before the Commission was whether claimant's pre-existing cervical spine condition was aggravated by her industrial accident. The Referee to whom the case was assigned concluded that the most persuasive medical evidence was that endorsing a causal relationship between claimant's condition and the accident, and wrote a decision awarding benefits to claimant for her permanent aggravation. The Commission declined to adopt the proposed decision and authored its own decision in which it denied benefits based on other medical evidence of record which it found more persuasive. On appeal, claimant argued that the Commission was not authorized to "simply reject" the findings and conclusions proposed by the Referee. Treating this assertion, the Court stated:

The findings of fact made by the referee were merely recommendations to the Industrial Commission. Upon reviewing those findings, it could either adopt them or enter its own findings. Idaho Code §§ 72-506(2) & 72-717 (1999). The Commission need not explain why it did not adopt certain findings recommended by the referee. The Industrial Commission, as the factfinder, is free to determine the weight to be given to the testimony of a medical expert. (Citations omitted)

Lorca-Merono v. Yokes Washington Foods, Inc., 137 Idaho 446, 50 P.3d 461 (2002). Here, Referee Taylor authored a proposed decision in which he found that Claimant met his burden of establishing a causal connection between the subject accident and his L3-4 condition. As developed infra, the undersigned Commissioners have reviewed the record and reach a different conclusion. Therefore, the undersigned Commissioners have chosen to adopt only a portion of the Referee's proposed decision and hereby issue their own findings of fact, conclusions of law and order.          ISSUES          The issues to be determined are:

1. Whether Claimant is entitled to a laminectomy and fusion at L3-4; and

2. Whether Claimant is entitled to time loss benefits related to such surgery. All other issues are reserved.

         CONTENTIONS OF THE PARTIES          Defendants acknowledge that Claimant sustained an industrial accident while working for Little Valley on January 25, 2009, when his truck and trailer rolled, resulting in serious injuries. He underwent extensive medical treatment including multiple surgeries. Claimant asserts his present need for L3-4 laminectomy and fusion is related to his industrial accident and also claims temporary disability benefits related to such surgery. Defendants maintain that any need for L3-4 laminectomy is not related to the industrial accident, L3-4 fusion is not warranted, and Claimant is not a good surgical candidate.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The Industrial Commission legal file;

2. Claimant's Exhibits 1-13, admitted at the hearing;

3. Defendants' Exhibits 1-8, admitted at the hearing;

4. The testimony of Claimant taken at the May 28, 2015 hearing;

5. The post-hearing deposition testimony of David B. Verst, M.D., taken by Claimant on June 5, 2015; and

6. The post-hearing deposition testimony of Timothy Doerr, M.D., taken by Defendants on June 19, 2015.

         All pending objections are overruled and motions to strike are denied, except Defendants' objection to Claimant's opening brief. Defendants object to the filing of Claimant's opening brief and request sanctions on the grounds that the brief violates the formatting requirements of JRP 11(A). Defendants observe that the Commission has in past decisions stricken the over- length portions of briefs. Claimant acknowledges his briefing formatting faults but asserts the unintentional violation of the rule does not warrant sanctions.          JRP 11(A) limits a claimant's opening brief to 30 pages and requires double-spaced text, top and bottom margins of one and one-half inches, and side margins of one inch. Adherence to the prescribed font, margins, and double spacing produces approximately 21 lines of text per page, resulting in a brief of approximately 630 total lines (21 lines x 30 pages).          In the present case, Claimant's initial brief utilized one and one half spacing and contains approximately 34 lines per page. While his initial brief is 23 pages long, plus the certificate of service page, it totals approximately 782 lines (34 lines x 23 pages)—substantially more than effectively allowed by JRP 11(A) without prior Commission approval. Thus Claimant's brief is over-length. Limiting Claimant's opening brief to 630 total lines of text at 34 lines per page (considering his one and one-half spacing), equals approximately 18.53 pages (630 total lines ÷ 34 lines per page). Pursuant to JRP 11(A), Defendants' objection is sustained and page 19, l. 20 through page 23 of Claimant's Initial Brief are hereby stricken. Page 1 through page 19, l. 19 and page 24 (certificate of service page) are considered herein.          FINDINGS OF FACT          1. Claimant was born in 1951. He is right-handed. At the time of the hearing he was 63 years old, six feet two inches tall, weighed 285 pounds, and lived in Glenns Ferry.          2. At all relevant times, Little Valley was a 16,000 acre elk ranch in Lemhi Valley.          3. Background. While in high school, Claimant began working as a civilian laborer at the Concord Naval Weapons Station in California. He eventually supervised a crew of 25 men transferring ordnance from boxcars onto ships. From 1976 until 1990, Claimant was employed at Pullman Trailmobile in Stockton, California repairing diesel trucks and trailers. He was hired as a welder and fabricator and eventually became a shop foreman. From 1992 until 2003, Claimant worked for Pend Oreille Telephone Company in Ione, Washington. He was hired as a mechanic, later learned telephone installation, and ultimately became the manager. From 2003 until 2008, Claimant worked at Ken Maupin Construction as a heavy equipment operator, welder, and fabricator.          4. In May 2008, Claimant was hired as the ranch manager and head guide at Little Valley. His responsibilities included irrigating, maintaining fences, and overseeing the care and maintenance of the ranch grounds and compound. He enjoyed his job and had no difficulty performing his work duties prior to January 2009.          5. Significant prior medical history. Claimant suffered various accidents and injuries in his prior work and recreational pursuits.          6. In 1973, Claimant's hand was run over by a forklift and he lost his left index finger. In 1990, Claimant stopped to assist the victim of a motor vehicle accident and was himself struck by a car and suffered cervical injury for which he eventually underwent C4-5 fusion in 1993. Claimant developed left carpal tunnel syndrome and underwent release surgery in 1992. In 1999, Claimant sustained a severe concussion when he was struck by a 1,000 pound transformer while working. He initially suffered seizures and thereafter noted recurring headaches. In 2004, he suffered a right knee injury from an ATV accident and underwent partial medial meniscectomy and anterior cruciate ligament debridement. In 2006 and 2007, Claimant presented to Joseph Taylor, M.D., complaining of numbness and tingling in his hands and feet. Dr. Taylor...