Phipps v. Trinity Trailer Mfc, Inc., 031119 IDWC, IC 2017-031418

• Case Date: March 11, 2019
• Court: Idaho

DARCY PHIPPS, Claimant, v. TRINITY TRAILER MFC, INC., Employer, and WESCO INSURANCE COMPANY, Surety, Defendants. Nos. IC 2017-031418, IC 2017-029896 Idaho Workers Compensation Before The Industrial Commission of The State of Idaho March 11, 2019           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           THOMAS P. BASKIN, 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 Boise on August 23, 2018. Claimant, Darcy Phipps, was present in person and represented by Daniel J. Luker, of Boise. Defendant Employer, Trinity Trailer MFC, Inc. (Trinity), and Defendant Surety, Wesco Insurance Company, were represented by Susan R. Veltman, 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 December 18, 2018. The undersigned Commissioners are in general agreement with the outcome proposed by the Referee, but issue their own findings of fact, conclusions of law and order, in order to elaborate on causation and TTD issues.          ISSUES          The issues to be decided are:

1. Whether Claimant’s work accidents of July 25 and October 2, 2017, caused the need for his cervical surgery in May 2018.

2. Claimant’s entitlement to temporary disability benefits. All other issues are reserved.

         CONTENTIONS OF THE PARTIES          Claimant alleges he suffered accidents causing cervical injury on July 25, 2017, and October 2, 2017, while working for Trinity. He asserts entitlement to medical benefits for his resulting cervical injury and surgery and temporary disability benefits during his recovery.          Defendants observe that Claimant has an extensive history of prior cervical pathology and surgery, question his credibility, and maintain that his work at Trinity did not cause his need for medical treatment. Defendants further note that Claimant’s employment was terminated for cause unrelated to his industrial accidents and therefore deny his entitlement to temporary disability benefits.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The Industrial Commission legal file.

2. Joint Exhibits 1 though 36, admitted at hearing.

3. Claimant’s testimony taken at hearing.

4. The post-hearing deposition testimony of Kenneth Little, M.D., taken by Claimant on September 7, 2018.

5. The post-hearing deposition testimony of Michael V. Hajjar, M.D., taken by

         Defendants on September 26, 2018. All outstanding objections are overruled and motions to strike are denied.          FINDINGS OF FACT          1. Claimant was born in 1969 and is right-handed. He was 49 years old and had resided in Idaho for approximately 36 years at the time of the hearing.          2. Trinity is a semitrailer manufacturing enterprise that manufactures and repairs self-unloading semitrailers for use generally in the agricultural industry.          3. Background. Claimant came to Idaho at the age of 11. He left school in the eighth grade to work to help support his family. He took his GED at the age of 16. Thereafter he worked in welding, trailer repair, trailer hitch installation, and masonry. He became a journeyman mason.          4. Claimant injured his low back and on February 15, 2006, neurosurgeon Keith Little, M.D., performed bilateral L4-5 and L5-S1 hemilaminectomies and microdiscectomies. Dr. Little did not recommend fusion because of Claimant’s young age. Claimant improved post-surgery but subsequently fell and thereafter experienced increased back and leg pain.          5. In 2006, Claimant was convicted of issuing a check without funds to get his dog out of a kennel. He was incarcerated for a time and subsequently released.          6. On September 25, 2007, Claimant applied for Social Security disability benefits alleging he became disabled February 13, 2006.          7. On May 1, 2008, Dr. Little performed a thoracic spinal cord stimulator placement to manage Claimant’s ongoing low back pain. The spinal cord stimulator was successful and largely eliminated Claimant’s back pain. He increased his activity level only to discover later that he had worsened his back condition by engaging in overly demanding physical activities because he could not perceive back pain while the stimulator was operating.          8. On October 20, 2008, Claimant was found eligible for Social Security disability benefits with disability onset as of February 13, 2006.          9. Claimant suffered persisting cervical pain with radicular symptoms “for a long time” and on July 13, 2009, Dr. Little performed C4-C7 anterior cervical discectomy and fusion. Transcript, p. 50, ll. 24-25.          10. Claimant’s low back pain worsened and on November 16, 2009, Dr. Little performed L4-S1 decompression and fusion.          11. On July 21, 2010, Dr. Little examined Claimant and recorded that he had “dramatically improved,” had no neurologic symptoms, and was off all prescription pain medications. Exhibit 3, p. 28.          12. In approximately 2013, Claimant returned to work. He began working for Cobalt Truck Equipment where he installed tool cabinets in truck beds and placed truck beds on trucks. He testified his back was not a problem. Claimant next worked for Goodyear Tire where his duties included oil changes, flat tire repairs, and balancing and installing tires. He was later promoted to working on engines. Claimant’s back became problematic while working at Goodyear Tire and he noted sciatic pain from his buttock to his right big toe. He was treated by Marvin Alviso, M.D., with muscle relaxers and pain medication, including hydrocodone, and was thereby able to continue working.          13. On July 4, 2014, Claimant underwent a cervical CT scan that was read by radiologist Nicolas Lazzaro, M.D., to show: “C3-4: Facet and uncovertebral joint arthropathy. Mild bilateral neural foraminal stenosis. Spinal canal appears patent. …. 2. Intact anterior fusion hardware C4-C7. There appears to be incomplete osseous fusions C4-C5 and C6-C7. 3. Multilevel mild-to-moderate degenerative changes as described above.” Exhibit 7, pp. 3-4.          14. In 2016, Claimant worked for a temporary employment agency that placed him with Trinity. After approximately four months, in July 2016, Trinity hired Claimant directly. His duties required inspecting all semitrailer operating systems including brakes, ABS, hydraulic, and air systems, repairing suspensions, and welding frame cracks. He lifted 50 pounds regularly and was up and down ladders both inside and outside the trailers. He used 3/8^th-inch to full one-inch impact wrenches as well as plasma cutters, welders, and torches. He worked regularly in awkward positions to access hydraulic control systems and other items on trailers.          15. On April 25, 2017, Claimant presented to Andrew Marsh, M.D., for pain management. Dr. Marsh recorded Claimant’s complaints of cervical, lumbar, and right leg pain and continued him on hydrocodone.          16. On July 7, 2017, Claimant presented again to Dr. Marsh who recorded Claimant’s lumbar and lower extremity pain with positive right straight leg raise testing, and cervical pain. Dr. Marsh observed Claimant suffered from chronic pain syndrome and “feels he is getting progressively worse.” Exhibit 8, p. 3. Dr. Marsh did not record any cervical radicular symptoms at that time.          17. On July 24, 2017, Trinity sent Claimant to Quincy, Washington to update five semitrailers previously delivered. As to each trailer he was to remove a battery powered landing leg (for return to the supplier), install a manual landing leg, and install a ladder and catwalk on the front. Claimant was allotted one day to drive to Quincy, three days to complete all work on the five trailers, and one day to drive back to Boise. The trailers were exposed to the sun in a gravel parking lot made of crushed black lava rock that absorbed the heat of the sunshine. Claimant estimated the daytime temperature to be approximately 100 degrees.          18. Industrial accidents and treatment. On July 25, 2017, Claimant welded brackets and ramps into place in preparation to install a catwalk on a semitrailer in Quincy. He wore a dark hood while welding. Claimant drilled bolt holes by pulling down on the catwalk with his left arm while pushing up with the drill in his right...