Mead v. Swift Transportation, 091115 IDWC, IC 2008-027385

• Case Date: September 11, 2015
• Court: Idaho

ROBERT E. MEAD, Claimant, v. SWIFT TRANSPORTATION, Employer, and ACE AMERICAN INSURANCE COMPANY, Surety, Defendants. No. IC 2008-027385 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho September 11, 2015           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           R.D. Maynard, Chairman.          INTRODUCTION          Pursuant to Idaho Code § 72-506, the above-entitled matter was assigned to Referee LaDawn Marsters, who conducted a hearing on November 3, 2014 in Lewiston, Idaho. Claimant was present in person and represented by Starr Kelso of Coeur d'Alene. Employer (Swift) and Surety (collectively referred to as Defendants) were represented by Emma R. Wilson of Boise. Oral and documentary evidence was admitted, and post-hearing depositions were taken. Subsequently, Exhibit 19 to Dr. Dirks' deposition was admitted into evidence pursuant to the Order entered on December 9, 2014, and the post-hearing deposition of Brenda Elliff, R.N., was admitted pursuant to the Order entered on February 23, 2015.^[1 Briefing was completed and the matter came under advisement on July 9, 2015. The case is now ready for decision. Referee Marsters submitted her recommendation on July 23, 2015, and left for new employment on July 24, 2015. The undersigned Commissioners have chosen not to adopt the Referee's recommendation and hereby issue their own findings of fact, conclusions of law and order.          ISSUES          The parties seek adjudication of the following issues:

1. Whether Claimant's claim for additional benefits is barred by Idaho Code § 72-706;

2. Whether the conditions for which Claimant seeks benefits were caused by the industrial accident; and

3. Whether and to what extent Claimant is entitled to benefits for:

a. Medical care; and

b. Temporary disability.

         CONTENTIONS OF THE PARTIES          There is no dispute that Claimant suffered a low back injury at Swift on June 9, 2008 for which he received medical benefits for treatment including two surgeries – one on October 10, 2008 by Dr. Dirks and one on April 12, 2012 by Dr. Larson – as well as indemnity benefits. It is also undisputed that Surety never filed any notices of claim status as required by Idaho Code § 72-806 in adjusting this claim.          Claimant contends that his lumbar spine condition has deteriorated since his second surgery such that he is entitled to additional diagnostic treatment by Dr. Dirks and, potentially, a third low back surgery which Dr. Dirks opines will likely be necessary. Claimant relies upon the medical opinion of Dr. Dirks and strongly argues that Dr. Larson is not a credible witness because he improperly induced Claimant to allow him to perform surgery in April 2012 after performing an evaluation of Claimant at Surety's request. Further, it appears that Dr. Larson's surgery may be defective. Claimant also asserts entitlement to temporary disability benefits related to his 2008 industrial low back injury due to his inability to work after his temporary disability benefits related to his August 2013 neck injury ceased on July 2, 2014.          Defendants counter that Claimant's symptoms for which he seeks additional treatment are unrelated to his 2008 industrial injury and, therefore, they are not liable for additional benefits. Further, they assert that any further temporary disability benefits are barred by Idaho Code § 72-706. Defendants primarily rely upon the medical opinions of Dr. Larson.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The prehearing deposition testimony of Claimant and Misty Coates taken October 22, 2014;

2. Claimant's Exhibits (CE) lettered "A" through "W";

3. Defendants' Exhibits (DE) numbered "1" through "6", "8" through "18", and "20" through "23" (or, "1" through "23" excepting "7" and "19");

4. The testimony of Claimant taken at the hearing; and

5. The post-hearing deposition testimony of:

a. Bret A. Dirks, M.D., taken November 4, 2014 and supplemented on December 10, 2014;

b. Jeffrey J. Larson, M.D., taken December 8, 2014; and

c. Brenda Elliff taken March 27, 2015.

         OBJECTIONS          Mr. Kelso's limited objection at the hearing to the admission of portions of the 2013 prehearing deposition of Claimant are overruled; Claimant's testimony therein will be afforded the weight it deserves on each issue at bar. Defendants' objection to CE "V" is deemed waived since no motion was filed following the hearing. Similarly, the legal disputes that arose during the deposition of Misty Coates pertaining to privileged information on sticky notes are deemed waived since the parties proceeded to briefing without first seeking a ruling from the Commission, either via separate motion prior to briefing, or by motion incorporated into briefing. All other pending objections are overruled.          FINDINGS OF FACT          BACKGROUND          1. Claimant was a few weeks shy of his fortieth birthday and residing in Lewiston at the time of the hearing. He attended high school through the first half of his senior year, and later obtained his GED. Claimant began working at Swift in 1996, where he obtained experience and certifications in various fields of mechanical work. At one point, he moved to Texas where he worked as a shop manager for Swift. He moved back – still in Swift's employ as a mechanic – before 2008.          2. Claimant has a history of continuing to work or otherwise function following injuries. For example, in high school, he was on the football team in the first play of the game when he broke three ribs and ruptured his spleen. He continued to play until halftime. When he worked as a logger prior to his full-time employment with Swift, he broke his hand in a non-industrial accident. TR-37. When he realized he could not do his job wearing the cast, he took it off and worked without it. Prior to 2008, Claimant injured his neck while working out at the gym. He continued to work at Swift, thinking the pain would resolve. When it did not, Claimant sought treatment and learned that he had herniated one or more discs in his cervical spine. He improved with conservative treatment including prescription pain medication, physical therapy, and epidural steroid injections. Claimant took his prescription pain medication at night to help him sleep, and continued to take it through the time of his 2008 industrial low back injury.          INDUSTRIAL INJURY AND FIRST SURGERY          3. On June 9, 2008, Claimant suffered a low back injury at Swift when he lifted a six-foot tall, 130-pound spring onto a cart. He felt a pinch in his back followed by low back pain with pain and numbness down his left leg into his calf and foot. There is no dispute that Claimant provided timely notice to Swift of this accident and injury.          4. Claimant received medical benefits for treatment by Christy Norwood, F.N.P., who ordered an MRI on August 14, 2008, among other things. Ultimately, NP Norwood referred Claimant to Bret Dirks, M.D., a neurosurgeon. Dr. Dirks diagnosed a herniated disc at L5-S1 and performed a left-sided microdiscectomy and laminectomy on October 10, 2008.          5. At a follow-up appointment on November 18, 2008, Claimant asked to be returned to regular duty even though he was not yet back to his pre-injury condition. According to Claimant, Dr. Dirks advised that he would never again be completely symptom-free. Claimant believed the pain he was experiencing was reasonable, given his surgery, and he felt significant improvement compared to his presurgical condition. Also, Swift was laying off employees, and Claimant had demonstrated in physical therapy that he could perform his job requirements. Dr. Dirks released Claimant to return to full-duty work, without restrictions, on December 2, 2008. He also prescribed physical therapy. Claimant continued to take prescription pain medication at night to control his residual pain and help him sleep.          IMPAIRMENT RATING          6. Surety sought an impairment rating from Dr. Dirks, who declined because he does not do them. So, in February 2009, Claimant underwent a medical evaluation at Surety's request by Jeffrey Larson, M.D., another neurosurgeon. Claimant still had low back pain. Dr. Larson assessed 6% whole person PPI following guidance from the Sixth Edition of the AMA Guides to the Evaluation of Permanent Impairment. According to Claimant, Dr. Larson did not examine Claimant's back.

I went into his office and he told

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