Olsen v. Idaho Department of Health & Welfare, 021816 IDWC, IC 2011-005369
| Case Date | February 18, 2016 |
| Court | Idaho |
1. Whether Claimant is medically stable, and, if so, on what date;
2. Whether the condition for which Claimant seeks benefits was caused by the alleged industrial accident;
3. Whether and to what extent Claimant is entitled to benefits for:
a) Temporary disability, b) Permanent partial impairment, c) Disability in excess of PPI, and
d) Medical care; and
4. Whether apportionment of permanent disability for preexisting conditions is appropriate under Idaho Code § 72-406.CONTENTIONS OF THE PARTIES Claimant contends that on February 21, 2011 he was injured in a "brutal assault." While working at the Idaho State School and Hospital, also referred to as the Southwest Idaho Treatment Center, he was thrown against a dumpster by a resident of the facility. He injured his neck and right shoulder. He aggravated, exacerbated, and/or accelerated a pre-existing physical condition. He suffered posttraumatic stress disorder (PTSD) as a result of the assault. He needs more medical care and is not yet medically stable. If deemed stable, he has suffered impairment and permanent disability as a result of the assault. Defendants contend Claimant's claim should be dismissed for failure to prove allegations of his Complaint. Regardless, they have paid all benefits due him for this accident. Claimant has returned to baseline without additional PPI and is medically stable. No further medical care is reasonable. His current condition relates to his pre-existing condition and not to the industrial accident. PTSD was newly alleged at hearing. Without such a claim in the Complaint, without prior allegations of PTSD raised during discovery, and without inclusion of an Idaho Code § 72-451 issue in the Notice of Hearing, no psychological issue can be considered for compensability. Regardless, Claimant failed to prove eligibility for benefits for PTSD. The only medical opinion about PPI attributes an 8% PPI wholly to Claimant's pre-existing condition, none to the industrial accident. Claimant is not a credible witness. He has exaggerated his permanent disability in order to receive benefits including Social Security and PERSI as well as those alleged here. EVIDENCE CONSIDERED The record in the instant case included the following:
1. Oral testimony at hearing of Claimant;
2. Claimant's exhibits 1 through 16 admitted at hearing (Claimant's proposed exhibit 17 was not admitted); and
3. Defendants' exhibits A through M admitted at hearing (Defendants' proposed exhibit N was withdrawn).The record includes a February 10, 2010 note by Sam Jorgenson, M.D., for a Mark McDonough. (Cl. Ex. 6, Bates p. 000422.) Also, medical records from January 2004-Bates pp. 000500 through 000514—pertain to a Mark D. Olsen, older and at a different address, who worked as an insurance adjuster. These documents do not appear to be related to Claimant. The Referee submits the following findings of fact and conclusions of law for the approval of the Commission and recommends it approve and adopt the same. FINDINGS OF FACT 1. Claimant worked for Employer on February 21, 2011. He worked with residents of the Idaho State School and Hospital in Nampa, some with a diagnosis of autism, some with other diagnoses indicative of developmental disability. Medical records show Claimant generally describes these residents as "autistic." Attempting to restrain a 17-year-old resident, Claimant was shoved or thrown against a dumpster. He struck the back of his head and other parts of his body on the dumpster. Medical Care: Beginning February 21, 2011 2. Claimant visited Primary Health that day. He reported the assault. He described neck pain radiating into both shoulders but not into his arms or hands. X-rays were reported as showing "moderate to severe degenerative changes without acute findings." Daryn Barnes, physician assistant to Stephen Martinez, M.D., diagnosed a neck sprain. He issued a return to work order with temporary restrictions prohibiting lifting, pushing or pulling over 20 pounds, together with some motion restrictions. Claimant visited for follow-up on February 24. 3. On March 2 Claimant showed cold symptoms and was diagnosed with bronchitis. He made no complaints to indicate ongoing neck injury or related symptoms. On March 3 Claimant telephoned to request a Norco refill. Claimant was given the Norco on March 4 for a diagnosis of "neck pain." 4. On March 10 Claimant visited Primary Health and reported he was ready to return to full work. Upon examination Dr. Martinez released Claimant to full work. Claimant refused Dr. Martinez's offer of physical therapy. Dr. Martinez noted Claimant was under treatment for chronic pain by Dr. Marsh. Dr. Martinez issued a return to work order which specified no restrictions and which advised home treatment including ice and exercise. 5. On March 13 Claimant telephoned to request a Norco refill. Dr. Martinez approved this request. On March 15 Claimant telephoned to request massage therapy. Shortly afterward Claimant began physical therapy which continued until about April 18. On March 20 Claimant telephoned to request a Norco refill. Dr Martinez approved this request. 6. On April 7 Claimant visited Dr. Marsh's PA. She noted Claimant was last seen at that office on February 14, 2011 and had ongoing prescriptions of Soma, Aleve, and morphine, taken alternately depending upon pain level. Upon examination, the PA noted slightly decreased range of neck flexion and tenderness and spasm of cervical paraspinous, levator, scalene, and rhomboid muscles. The PA noted Claimant's prior drug history, counted his pills, and did not note any overuse problem. 7. On April 22 an MRI showed multilevel degenerative spondylosis from C3 through C7. Claimant gave a history of a neck sprain "re-injured 2 months ago." Compared to a June 5, 2010 MRI, the recent MRI showed progression of degenerative changes at C3-4, C4-5 and C6-7. The radiologist recommended "correlation for right C7 radiculopathy." At the time of the 2010 MRI Claimant had reported worsening chronic neck pain and headaches with pain and tingling in both arms. Upon receipt and review of the MRI Dr. Martinez diagnosed a neck sprain superimposed on a preexisting degenerative disc disease. 8. On April 24 PA Barnes noted the prior history. Upon examination he found no muscle tenderness despite limited range of motion in Claimant's neck, and all other tests indicated no abnormality. 9. Throughout March, April, and May, Claimant continued follow-up with telephone calls and occasional office visits. The limited neck motion remained. Claimant continued to report an absence of symptoms in his arms or elsewhere. 10. On May 24 Claimant visited Richard Manos, M.D. Claimant reported he had been working full duty since the February 10 [sic], 2011 assault but "is beginning to get numbness in his hands." Upon examination Dr. Manos found moderate tenderness over the paraspinal muscles, reduced range of neck motion, slight motor weakness of his wrist extensors, a positive Tinel's and Phalen's, and diminished reflexes in the C6 distribution. All else was normal. He observed the MRI and noted the presence of spondylosis. Dr. Manos opined that, despite the degenerative changes, the tingling in his hands was likely related to the assault. He recommended continued chiropractic care and wrist splints. He imposed no temporary restrictions and allowed full-duty work. He found Claimant was not a surgical candidate. 11. Claimant resumed...
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