Pickens v. Dodge, 081216 IDWC, IC 2013-032785

Case DateAugust 12, 2016
CourtIdaho
GARY D. PICKENS, Claimant,
v.
PETERSEN STAMPEDE DODGE, Employer,
and
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Surety, Defendants.
No. IC 2013-032785
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 John C. Hummel 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 that his need for the proposed lumbar and radicular surgery, and any medical care related to it, is causally related to his industrial accident, reasonable and compensable.          2. Defendants are liable for Claimant's unreimbursed medical expenses, pursuant to Idaho Code § 72-432. This specifically includes the medical care that Claimant received from Dr. Marsh, the MRI of February 23, 2015, and any unreimbursed chiropractic expenses of Dr. Price related to Claimant's industrial condition. Pursuant to Neel v. Western Construction, Inc., 147 Idaho 146, 149, 206 P.3d 852, 855 (2009), Claimant is entitled to recover 100% of the invoiced amounts of these medical expenses. Defendants, however, are not liable for Claimant's acupuncture treatment by Wang Medical.          3. Claimant has failed to prove his entitlement to temporary disability benefits from June 9, 2015 through the date of hearing.          4. Defendants are liable for attorney fees pursuant to Idaho Code § 72-804 because they did not have reasonable grounds to deny Claimant compensation in the form of medical treatment, including surgery, related to his industrial condition. Unless the parties can agree on an amount for reasonable attorney's 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, and an affidavit in support thereof. The memorandum shall be submitted for the purpose of assisting the Commission in discharging its responsibility to determine reasonable attorney fees and costs in the matter. See, Hogaboom v. Economy Mattress, 107 Idaho 13, 18, 684 P.2d 900, 995 (1984). 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 objects 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 and costs.          5. Pursuant to Idaho Code § 72-718, this decision is final and conclusive as to all matters adjudicated.           Thomas E. Limbaugh, Commissioner, Thomas P. Baskin Commissioner, Assistant Commission Secretary          INTRODUCTION           John C. Hummel, Referee          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to John C. Hummel, who conducted hearings in Boise on January 29 and February 16, 2016. Bryan S. Storer represented Claimant, Gary D. Pickens, who was present. Susan R. Veltman represented Defendants, Petersen Stampede Dodge ("Petersen"), Employer, and Insurance Company of the State of Pennsylvania, Surety. The parties presented oral and documentary evidence at hearing and took post-hearing depositions. The matter came under advisement on July 26, 2016.          ISSUES          The issues noticed for hearing were as follows:          1. Whether the industrial accident caused the condition for which Claimant seeks benefits; and          2. Whether and to what extent Claimant is entitled to the following:
a. Medical care, including, but not limited to, proposed surgery;
b. Temporary partial and/or temporary total disability benefits (TPD/TTD); and
c. Attorney fees.
         All other issues were reserved.          CONTENTIONS OF THE PARTIES          Claimant suffered an industrial accident in Petersen's employment on December 4, 2013. Upon exiting a vehicle in Petersen's parking lot, Claimant fell, grabbed the car door to keep from falling, and injured his lower back.          Claimant asserts that lumbar surgery proposed by Dr. Manning is reasonable, necessary and causally related to the subject accident. He further asserts that he is entitled to temporary disability benefits until he reaches maximum medical improvement following surgery. Finally, he argues that he is entitled to attorney fees for unreasonable denial of benefits.          Defendants assert that Claimant's industrial injury was limited to a lumbar strain and sprain that resulted in only a temporary aggravation of his preexisting condition. They assert that Claimant has already received appropriate, conservative treatment for his injury and that the proposed lumbar surgery is not causally related to the subject injury but rather is the result of a preexisting condition. Defendants argue that Claimant reached maximum medical improvement on March 18, 2014 and that no temporary disability benefits are owed. If, however, the Commission rules that the proposed lumbar surgery is compensable, they argue that temporary disability benefits will not be owed until Claimant is taken off work for the surgery. Defendants further argue that certain medical expenses incurred by Claimant are not compensable because Claimant obtained such care outside of the chain of referral. Finally, Defendants argue that they did not act unreasonably in denying Claimant benefits, thus no attorney fees should be paid.          EVIDENCE CONSIDERED          The record in this matter consists of the following:          1. The Industrial Commission legal file;          2. Claimant's Exhibits ("CE") 1 through 10, admitted at hearing;          3. Defendants' Exhibits ("DE") 1 through 15, admitted at hearing;          4. The testimony of Claimant, Tanner Pickens, Trevor Knesal, and Charles Mattson, taken at the February 16, 2016 hearing; and          5. The post-hearing deposition testimony of Daniel Marsh, M.D., taken on February24, 2016, and David Price, D.C., taken on March 1, 2016.          OBJECTIONS          All pending objections raised in the post-hearing depositions are overruled.          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's Background. Claimant was born and raised in Boise. He graduated from high school in 1977. He graduated from Boise State University with a bachelor of arts in marketing and advertising in 1994. Apart from living in McCall, Idaho for two years, Claimant spent his entire life and career in Boise. He was 56 years old at the time of hearing. Tr., 14:13-15:41; DE 3:4 (5:14-6:24) (Claimant Dep.).          2. Prior Injuries and Medical History. After graduating from high school in 1977, Claimant and several friends were involved in a serious vehicular accident near Notus, Idaho. The driver of the van was killed. Claimant sustained the following injuries: three broken toes on his right foot that required surgery; a shifted metatarsal on his right foot, also requiring surgery; a fracture of his left hip requiring total hip arthroplasty; a dislocated right arm; internal injuries; and a concussion/traumatic brain injury. Claimant's injuries were serious enough that he recalled that medical providers "gave me a three percent chance through the first night to make it." Claimant spent a month recovering from the accident in Saint Alphonsus Regional Medical Center and then several months rehabilitating in the Idaho Elks Rehabilitation Hospital in Boise. After his discharge from the Elks, He did not have any limitations regarding his back following this accident and his recovery from...

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