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., 14:13-15:4
1; 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...