NICK GDONTAKIS, Claimant,
v.
PETERSEN, INC., Employer,
And
ZURICH AMERICAN INSURANCE CO., Surety, Defendants.
No. IC 2017-022779
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
October 15, 2019
FINDINGS OF FACT, CONCLUSION OF LAW, AND
RECOMMENDATION
Thomas
P. Baskin, Chairman
INTRODUCTION
Pursuant
to Idaho Code § 72-506, the Idaho Industrial Commission
assigned the above-entitled matter to Referee Brian Harper,
who conducted a hearing in Pocatello, Idaho, on May 9, 2019.
Patrick George represented Claimant, and David Gardner
represented Defendants. The parties produced oral and
documentary evidence at the hearing, took post-hearing
depositions, and submitted briefs. The matter came under
advisement on September 20, 2019.
ISSUE
The
sole issue for resolution is the determination of the extent,
if any, of Claimant’s permanent partial disability in
excess of impairment.
CONTENTIONS
OF THE PARTIES
Claimant
suffered a compensable injury to his dominant right shoulder
on July 20, 2017. Surgery resulted with residual permanent
restrictions. Claimant asserts he can no longer do his
time-of-injury job, and is quite limited in his employment
prospects, with a corresponding loss of income. He has
sustained permanent partial disability in the amount of 66%
inclusive of his 8% whole person impairment.
Defendants
assert Claimant continued his employment with Employer for
several months post-accident, up to the time of his surgery.
Thereafter he chose to retire, but could have returned to his
time-of-injury employment with accommodations. Employer kept
Claimant’s position open and was ready and willing to
have him return to work once he was released back to work
after his surgery. Claimant likely suffered no permanent
partial disability above his 8% impairment, and at most
suffered permanent disability of no more than 21%.
EVIDENCE
CONSIDERED
The
record in this matter consists of the following:
1. The testimony of Claimant taken at hearing;
2. Joint exhibits (JE) 1 through 24 admitted at hearing;
3. The deposition testimony of witness Jeffrey Schutte, taken
on June 19, 2019, pursuant to an agreement of the parties to
allow such belated testimony; and
4. The post-hearing deposition transcript of Nancy Collins,
PhD, taken on June 26, 2019.
Objections
in the depositions are overruled.
FINDINGS
OF FACT
1.
Claimant turned 66 years old the day before his hearing and
lived in Pocatello, Idaho. He emigrated from Greece over
forty years ago. In Greece Claimant obtained a college
education with an engineering degree.
1 In the United States
Claimant took welding and blueprint reading courses and
consistently worked as a skilled welder and fabricator. He
has gained significant expertise as a welder through the
years.
2.
Claimant began working for Employer in 2012 as a
fitter-welder. He was classified as a Welder III, or top-tier
welder.
3. On
July 20, 2017, Claimant was drilling into metal when the
drill bit “caught” causing the drill to
forcefully spin, injuring Claimant’s right shoulder.
4.
Claimant’s post-accident medical care included physical
therapy (pre-and post-surgery) and surgery to repair
Claimant’s torn rotator cuff and bicep. Claimant
reached MMI by May 15, 2018. Surety paid for the medical
treatment, time loss during Claimant’s period of
recovery, and permanent impairment benefits based on an 8%
whole-person impairment rating. The sole remaining issue is
to determine Claimant’s entitlement to permanent
partial disability benefits.
DISCUSSION
AND FURTHER FINDINGS
5.
Idaho Code § 72-422 defines permanent disability as
“any anatomic or functional abnormality or loss after
maximal medical rehabilitation has been achieved and which
abnormality or loss, medically, is considered stable or
nonprogressive at the time of evaluation.” One is under
a permanent disability “when the actual or presumed
ability to engage in gainful activity is reduced or absent
because of permanent impairment and no fundamental or marked
change in the future can be reasonably expected.” I.C.
§ 72-423. As defined in I.C. § 72-425,
“Evaluation (rating) of permanent disability” is
an appraisal of the injured employee’s present and
probable future ability to engage in gainful activity as it
is affected by the medical factor of permanent impairment and
by pertinent nonmedical factors….” Those
“pertinent nonmedical factors” include the nature
of the physical disablement, the disfigurement and its effect
on procuring or holding employment, the cumulative effect of
multiple injuries, the employee’s occupation and age at
the time of the accident, the employee’s diminished
ability to compete in an open labor market within a
reasonable geographical area considering all the personal and
economic circumstances of the employee, in addition to other
factors the Commission may deem relevant. I.C. § 72-430.
6. The
test for determining if a claimant has suffered a permanent
disability greater than permanent impairment is
“whether the physical impairment, taken in conjunction
with nonmedical factors, has reduced the claimant’s
capacity for gainful employment.” Graybill v. Swift
& Co., 115 Idaho 293, 294, 66 P.2d 763, 766 (1988).
The burden of establishing permanent disability is upon a
claimant. Seese v. Ideal of Idaho, Inc., 110 Idaho
32, 714 P.2d 1 (1986).
7.
Permanent disability is a question of fact, in which the
Commission considers all relevant medical and nonmedical
factors and evaluates the advisory opinions of vocational
experts. See Eacret v. Clearwater Forest Industries,
136 Idaho 733, 40 P.3d 91 (2002); Boley v. State,
Industrial Special Indem. Fund, 130 Idaho 278, 939 P.2d
854 (1997). The Idaho Supreme Court in Brown v. The Home
Depot, 152 Idaho 605, 272 P.3d 577 (2012) iterated that,
as a general rule, Claimant’s disability assessment
should be performed as of the date of hearing.
Disability
in Excess of Impairment
8. The
controversy herein first centers on whether Claimant could
have returned to work for Employer post-surgery but chose not
to, arguably foreclosing his claim for PPD benefits in excess
of impairment. Claimant asserts he was precluded by his
limitations and practical considerations from performing his
job duties for Employer, and was therefore justified in
“retiring” from his position therein and seeking
lighter work elsewhere, with resulting loss of job
opportunities and wages.
9.
Claimant notes that the job description for a Welder III
lists as essential functions “lifting, stooping,
bending, and stretching” for extended periods of time,
as well as “ability to work at different
heights.” JE 24, p. 584. Claimant testified as to the
lifting and carrying he regularly was required to do, as well
as the various arm positions he employed when welding on
different assignments. He argues he can no longer do the
lifting and welding required in his employment.
Claimant’s
FCE
10.
After Claimant was released by his treating physician,
Richard Wathne, M.D., without any stated
restrictions
2, but with some residual weakness to
resistive supraspinatus testing and some slight loss of
rotation, Claimant elected to participate in a two-day
functional capacity evaluation (FCE). As a result of that
evaluation, the supervising physical therapist concluded
Claimant could not return to work as a steel
fabricator/welder, his lifting and reaching abilities placed
him in a sedentary work category, and his overall results
placed Claimant in a sedentary to light physical demand
capacity. Specifically, the therapist determined Claimant
should be restricted to five pounds occasional lifting to
shoulder height, and lift carry of 25 pounds occasionally.
Claimant also was given a ten-pound occasional limit in
lifting from floor level, and only...
