Pickens v. Petersen Stampede Dodge, 111220 IDWC, IC 2013-032785

• Case Date: November 12, 2020
• Court: Idaho

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 November 12, 2020          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           Thomas P. Baskin, Chairman.          INTRODUCTION          Pursuant to Idaho Code sect; 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee John C. Hummel, who conducted a hearing in Boise on July 30, 2019. Bryan S. Storer represented Claimant, Gary D. Pickens, who was present in person. Susan R. Veltman represented Defendant Employer, Petersen Stampede Dodge, and Defendant Surety, Insurance Company of the State of Pennsylvania. The parties presented oral and documentary evidence, took post-hearing depositions, and submitted briefs. The matter came under advisement on April 6, 2020.          PRIOR PROCEEDINGS          The Referee held a prior hearing in this matter on January 29 and February 16, 2016. That hearing resulted in a decision dated August 12, 2016 that held as follows:

1. Claimant proved that his need for the proposed lumbar surgery, and any medical care related to it, was causally related to his industrial accident, reasonable and compensable.

2. Defendants were 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, 147 Idaho 146, 149, 206 P.3d 852, 855 (2009), Claimant was entitled to recover 100% of the invoiced amounts of these medical expenses. Defendants, however, were not liable for Claimant's acupuncture treatment by Wang Medical.

3. Claimant failed to prove his entitlement to temporary disability benefits from June 9, 2015 through the date of hearing.

4. Defendants were 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.

         ISSUES          The issues to be decided as the result of the July 29, 2019 hearing are as follows:          1. Whether the industrial accident caused the left hip condition for which Claimant is now seeking benefits.          2. Whether Claimant is medically stable, and if so, the date thereof.          3. Whether and to what extent Claimant is entitled to the following workers' compensation benefits:

a. Medical care, including but not limited to the hip surgery that Claimant already obtained on his own.

b. Temporary partial and/or temporary total disability benefits.

c. Permanent partial impairment.

d. Permanent partial disability.

         4. Whether Claimant is entitled to total and permanent disability, pursuant to the Odd-Lot Doctrine or otherwise.          5. Whether apportionment for a preexisting condition pursuant to Idaho Code § 72-406 is appropriate.          6. Whether Claimant is entitled to attorney fees pursuant to Idaho Code § 72-804.          7. Whether and to what extent Defendants may apply for a credit against benefits previously paid against any additional benefits owed.          CONTENTIONS OF THE PARTIES          Claimant argues that his left hip condition is industrially related and that the surgery that he obtained on his own should be covered by Surety. He acknowledges that he had a prior hip injury in 1977, but that it was so remote in time and asymptomatic for decades that it is reasonable to conclude that the industrial accident is responsible for his hip condition, not the prior injury. Claimant further argues that the delay in obtaining back surgery, which was authorized by the first decision, caused him to walk with an antalgic gait that exacerbated his left hip. As for disability, Claimant argues that he is now unable to work, whereas he worked consistently before the industrial accident, and that seeking work would be futile, thus he is an Odd-Lot worker who is permanently and totally disabled.          Defendants argue that Claimant has preexisting osteoarthritis in his left hip related to his prior injury, and the need for hip replacement surgery is neither directly related to the industrial accident, nor a compensable consequence of that accident. Defendants argue that all TTD payments due and owing have been paid. Claimant is at MMI and has received PPI payments due and owing that are related to the industrial accident. Defendants deny that Claimant has any permanent disability, either partial or total, related to the industrial accident, and that attorney fees are not appropriate. Finally, Defendants argue that Claimant received several overpayments on certain medical benefits for which Defendants are entitled to receive a recoupment from future benefits owed.          EVIDENCE CONSIDERED          The record in this matter consists of the following:          1. Joint Exhibits A through U, with the exceptions of Exhibit G:90 and the portion of Exhibit M:13 discussing a previously undisclosed chart note, per the Order of September 4, 2019 and evidentiary rulings during the July 30, 2019 hearing;          2. The testimony of Claimant admitted at the July 30, 2019 hearing;          3. The post-hearing deposition testimony of the following expert witnesses:

a. Daniel Marsh, M.D., taken August 20, 2019;

b. Douglas Crum, taken September 3, 2019;

c. Timothy Eugene Doerr, M.D., taken December 13, 2019; and

d. Barbara K. Nelson, M.S., CRC, taken January 9, 2020;

         4. Claimant's Exhibits ("CE") 1 through 10, admitted at the previous hearing;          5. Defendants' Exhibits ("DE") 1 through 15, admitted at the previous hearing;          6. The testimony of Claimant, Tanner Pickens, Trevor Knesal, and Charles Mattson, taken at the previous hearing; and          7. The post-hearing deposition testimony of Daniel Marsh, M.D., taken on February 24, 2016, and David Price, D.C., taken on March 1, 2016.          OBJECTIONS          All unresolved evidentiary objections from either the hearing or 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 conclusion of law for review by the Commission.          FINDINGS OF FACT          1. Previous Findings. The findings contained in the August 12, 2016 decision are incorporated herein by reference as though set forth in full, with the exception noted below.          2. Finding No. 2 of the August 12, 2016 decision stated that Claimant sustained a left hip fracture in the 1977 automobile accident that resulted in a "total hip arthroplasty." This was incorrect; Claimant's surgeon "basically rebuilt the hip," but without a joint replacement. Tr., 42:19-24. Claimant described the surgery as follows:

Q. Okay. And do you recall the surgery that was done to your left hip?

A. Yes, I do. The accident I was in, I was hit head-on as a passenger in a Ford Econovan. And where I was sitting took the impact, and I tried to jump to the back of the van, which where the impact hit, it crushed my right foot, pinning me. And then you have the ball in the socket [of the left hip], and it popped out the back of the socket leaving 78 breaks.

Dr. Lynn McLaughlin went in and put pins in the ball to extend the ball, shaved off bone off of my hip, to make a calcium deposit, and pasted it on.

Id. at 53:12-23.          3. Left Hip Recovery and Treatment After 1977 Accident. It took Claimant approximately two years to recover fully from the 1977 automobile accident. Thereafter, he was able to resume his normal, vigorous physical activities, including but not limited to karate, snow skiing, water skiing, golf, tennis, road bike racing, mountain biking, and hunting. The only previous activity that he was unable to return to was sky diving. Id. at 54:2-25.          4. One physical limitation that Claimant experienced after the accident and his recovery was the inability to sit cross-legged because he did not have full rotation of the left hip. Tr., 54:13-15. Claimant was also left with a slight...