Mead v. Swift Transportation, 081216 IDWC, IC 2013-028008

• Case Date: August 12, 2016
• Court: Idaho

ROBERT E. MEAD, Claimant, v. SWIFT TRANSPORTATION, Employer, and ACE AMERICAN INSURANCE COMPANY, Surety, Defendants. No. IC 2013-028008 Idaho Workers Compensation Before the Industrial Commission of the state of Idaho August 12, 2016           ORDER           R.D. Maynard, Chairman          Pursuant to Idaho Code § 72-717, Referee Alan Taylor 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 his entitlement to reasonable medical treatment including but not limited to physical therapy, epidural steroid injections, and cervical surgery due to his industrial accident. Pursuant to Neel v. Western Construction, Inc., 147 Idaho 146, 206 P.3d 852 (2009), Claimant is entitled to recover 100% of the invoiced amounts of these medical bills incurred between the date of Defendants' denial and the date of this decision.

2. Claimant reached medical stability from his industrial accident by June 10, 2014. He has not proven his entitlement to additional temporary disability benefits.

3. Claimant has proven his entitlement to permanent partial impairment benefits of 3% of the whole person due to his industrial accident.

4. Claimant has proven Defendants' liability for attorney fees. Claimant is entitled to attorney fees pursuant to Idaho Code §72-804. Unless the parties can agree on an amount for reasonable attorney fees, Claimant's counsel shall, within twenty-one (21) days of the entry of the Commission's decision, file with the Commission a memorandum of attorney fees incurred in counsel's representation of Claimant in connection with these benefits, plus an affidavit in support thereof. In particular, the parties must discuss the factors set forth by the Idaho Supreme Court Hogaboom v. Economy Mattress, 107 Idaho 13, 684 P.2d 990 (1984). The memorandum shall be submitted for the purpose of assisting the Commission in discharging its responsibility to determine reasonable attorney fees in this matter. Within fourteen (14) days of the filing of the memorandum and affidavit thereof, Defendants may file a memorandum in response to Claimant's memorandum. If Defendants object to any representation made by Claimant, the objection must be set forth with particularity. Within seven (7) days after Defendants' response, Claimant may file a reply memorandum. The Commission, upon receipt of the foregoing pleadings, will review the matter and issue an order determining attorney fees.

5. Pursuant to Idaho Code § 72-718, this decision is final and conclusive as to all matters adjudicated.

         FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           Thomas E. Limbaugh, Commissioner, Thomas P. Baskin, Commissioner          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION          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 Lewiston on October 16, 2015. Claimant, Robert E. Mead, was present in person and represented by Starr Kelso, of Coeur d'Alene. Defendant Employer, Swift Transportation (Swift), and Defendant Surety, Ace American Insurance Company, were represented by Emma Wilson, of Boise. The parties presented oral and documentary evidence. Post-hearing depositions were taken and briefs were later submitted. The matter came under advisement on April 25, 2016.          ISSUES          The issues to be decided by the Commission are:

1. Claimant's entitlement to medical care.

2. Whether the condition for which Claimant seeks benefits was caused by the industrial accident or whether Claimant's condition is due in whole or in part to a pre-existing condition.

3. Whether Claimant is medically stable and, if so, the date thereof.

4. Claimant's entitlement to temporary disability benefits.

5. Claimant's entitlement to permanent partial impairment benefits.

6. Whether Claimant is entitled to attorney fees pursuant to Idaho Code § 72-804.

         CONTENTIONS OF THE PARTIES          Claimant contends he suffered an accident on August 21, 2013, while working at Swift when he turned a 47-foot plank and sustained C5-6 and C6-7 disc herniations for which he subsequently underwent cervical surgery. He requests additional medical, temporary disability, and permanent partial impairment benefits. Claimant also requests attorney fees for Defendants' unreasonable denial of benefits.          Defendants acknowledge Claimant's industrial accident at Swift, but assert it caused only a rhomboid strain from which he recovered without impairment or permanent restrictions. Defendants note that Claimant's cervical condition preexisted his industrial accident and maintain that his need for cervical surgery was unrelated to his accident. They argue that Claimant initially denied an industrial accident, thus further justifying their refusal to pay benefits. Defendants assert they have paid all temporary disability and medical benefits owed.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The Industrial Commission legal file;

2. The testimony of Claimant, and his wife Pamela Mead, taken at the hearing;

3. Claimant's Exhibits A through Y and Defendants' Exhibits 1 through 25, admitted at the hearing;

4. The post-hearing deposition testimony of Bret Dirks, M.D., taken by Claimant on December 10, 2015; and

5. The post-hearing deposition testimony of Jeffrey Larson, M.D., taken by Defendants on January 13, 2016.

         All pending objections are overruled and motions to strike are denied. 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 was born in 1974. He was 40 years old and resided in Lewiston at the time of the hearing. He is right-handed.          2. Background. Claimant has worked all his life. At nine years of age he began working for a farmer every night and on weekends. During high school he worked as a logger with his father. Claimant left high school during his senior year to work full-time at a lumber mill. He later obtained his GED.          3. On April 22, 1996, Claimant began working for Swift as a mechanic. His duties included welding and all aspects of trailer repair and maintenance. Claimant transferred to Texas where he worked for one year as a service manager for Swift. However, his sister's ill health prompted him to move back to Lewiston to assist her. Upon his return, Swift put Claimant in charge of all of the trailer mechanics in Swift's Lewiston shop. Claimant was then responsible for establishing weekly goals for the trailer mechanics and was accountable for the attainment of these goals.          4. Pre-existing health conditions. In February 2008, Claimant was lifting weights and experienced sudden neck pain while performing shoulder shrugs with approximately 200 pounds. Thereafter he noted persisting neck pain and pain in his left arm and left triceps. He underwent a cervical MRI which revealed small left-sided C6-7 disc herniation. EMG testing on April 2, 2008, showed abnormal left arm denervation. Claimant received medical treatment, including three cervical epidural steroid injections in May and June 2008. His neck and arm symptoms improved significantly after the injections and he sought no further treatment at that time.          5. On June 9, 2008, Claimant injured his back lifting a 130–pound spring while working at Swift. He was found to have an L5-S1 herniated disc. This injury is the subject of a separate worker's compensation claim against Swift.1 Claimant noted progressive back and leg pain. On October 10, 2008, neurosurgeon Bret Dirks, M.D., performed left-sided L5-S1 microdiscectomy and laminotomy. On December 2, 2008, at Claimant's request, Dr. Dirks released Claimant to return to work at Swift without restrictions.          6. In July 2010, Claimant strained his neck while loading a friend's...