Rish v. The Home Depot, Inc., 092315 IDWC, IC 2005-011806

• Case Date: September 23, 2015
• Court: Idaho

CHANNEL (BLACKER) RISH, Claimant, v. THE HOME DEPOT, INC., Employer, and INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Surety, Defendants. No. IC 2005-011806 Idaho Workers Compensation Before the Industrial Commission of the state of Idaho September 23, 2015           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           R. D. Maynard, Chairman          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Industrial Commission assigned the above-entitled matter to Referee Douglas A. Donohue who conducted a hearing in Idaho Falls on August 26, 2014. Paul Curtis represented Claimant. W. Scott Wigle represented Defendants. The parties presented oral and documentary evidence. Post-hearing depositions were taken. The parties submitted briefs. The case came under advisement on June 3, 2015 and is now ready for decision.          ISSUES          According to the Notice of Hearing, the issues are as follows:          1. Whether the condition for which Claimant seeks benefits was caused by the alleged industrial accident;          2. Whether Claimant's condition is due in whole or in part to a subsequent intervening cause;          3. Whether Claimant is medically stable, and, if so, on what date;          4. Whether and to what extent Claimant is entitled to benefits for

(a) Permanent partial impairment;

(b) Disability in excess of PPI including 100% total and permanent disability;

(c) Medical care; and

(d) Attorney fees;

         5. Whether Claimant is entitled to total and permanent disability under the odd-lot doctrine; and          6. Whether apportionment of permanent disability for preexisting conditions are appropriate under Idaho Code § 72-406.          In post-hearing briefing Claimant added a new issue claiming 12 weeks of unpaid temporary disability benefits. Claimant abandoned the issues of total permanent disability and odd-lot disability.          Additionally, the parties represent that Commissioner Baskin represented Defendants in this matter prior to accepting appointment to the Commission.          CONTENTIONS OF THE PARTIES          The parties agree Claimant suffered a compensable accident at work on October 30, 2005. Surety paid medical and TTD benefits for a time.          Claimant contends she twisted her knee at work and injured it. After medical treatment including three knee surgeries, she still had pain and swelling. She was prematurely deemed to be at MMI by Casey Huntsman, M.D., in August 2007. Her actual MMI date should be no earlier than January 28, 2009, the date Christian Gussner, M.D., performed his second IME. Regardless of MMI date, Claimant still needs medical treatment for debilitating knee pain. Her condition has evolved to CRPS. She is entitled to medical care benefits to the date of the hearing and in the future. Surety stopped paying medical benefits in April 2009. Physicians generally agree a 5% PPI is appropriate. Claimant's disability should be found in a range of 40% to 60%. Defendants should be ordered to pay attorney fees; they acted unreasonably by paying TTDs untimely, cutting off medical benefits prematurely, and denying an evaluation at University of Utah.          Defendants contend they have paid all appropriate TTD and PPI benefits due Claimant. Medical benefits were discontinued after expert medical opinions in 2009. Subsequent pain management treatment, including narcotics and a spinal stimulator, was not reasonable or necessary and was harmful to Claimant. Claimant failed to show an objective basis for her claim of permanent disability in excess of PPI. Claimant has failed or refused to cooperate in physicians' recommendations to achieve maximum recovery. Defendants' have acted reasonably throughout the course of this claim.          EVIDENCE CONSIDERED          The record in the instant case included the following:

1. Oral testimony at hearing of Claimant and her mother;

2. Claimant's exhibits 1 through 23 and B1 through B16 admitted at hearing;

3. Defendants' exhibits A through P admitted at hearing;

4. Depositions of physiatrist Gary Walker, M.D., pain management physician Jason Poston, M.D., neuropsychologist Carol V. Anderson, Ph.D., and vocational experts Mary Barros-Bailey, Ph.D., and Kent Granat.

         Objections in posthearing depositions are OVERRULED; EXCEPT the following objections are SUSTAINED:

Dr. Walker's deposition at pages 33-35; and Mr. Granat's deposition at page 15.

         Claimant's proposed exhibits 24 through 31 were acknowledged by the parties to be merely duplicative and were not admitted. The record was held open post-hearing to allow the parties to review these documents further and move to admit specific documents within the set which were not duplicative, if any were found. No party moved for the admission of any document within this group.          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 October 30, 2005. She slipped on a floor mat but did not fall. She twisted her knee. She was 26 years old.          2. While still in her recovery period, Casey Huntsman, M.D., released Claimant to full-duty work. As temporary restrictions, he recommended she avoid kneeling and that she take a 15 minute break every two hours. About January 25, 2006 Claimant returned to work. She worked until May 16, 2006. She has not worked since.          Medical Care Beginning October 30, 2005          3. Claimant visited Eastern Idaho Regional Medical Center (EIRMC) ER that day. Examination was compromised by pain complaints. Where discernible upon examination, no abnormalities were noted. X-rays were normal. No specific diagnosis was made.          4. On November 1 Claimant visited Barry Bennet, M.D., at Southeast Idaho Family Practice. Dr. Bennet is a partner of Kay Christensen, M.D., Claimant's regular physician since childhood. Dr. Bennet noted, "Any realistic exam is hampered by severe pain." He diagnosed a sprain and prescribed Lortab. Throughout Claimant's course of treatment for this injury, additional unrelated visits for various ailments were attended by Dr. Christensen or nurse practitioner Cathy Arvidson, F.N.P.          5. On November 8 Claimant visited Casey Huntsman, M.D. Claimant reported her knee "gets worse with bending the knee and walking and twisting. It gets better with Hydrocodone." His examination found "trace" effusion. He noted, "I cannot do a good examination because of how tender she is." Beyond the trace swelling, he found no objective symptoms. He considered possible meniscal or ACL tears and recommended an MRI.          6. A November 17 MRI could not "absolutely exclude" a possible subtle meniscus tear, but no objective basis for her pain complaints was visible.           7. On a November 29 visit to Dr. Huntsman Claimant was much better. She reported only mild tenderness. Upon examination, Dr. Huntsman noted mild crepitus and a McMurray's test positive for pain although without a "click." Otherwise the examination found no abnormalities. He assessed a probable ACL sprain with a medial meniscus contusion. He prescribed Lodine XL. Claimant refused physical therapy.          8. A December 2 EIRMC ER record states Claimant had returned to work for three days but her knee complaints were worse. "She is out of her pain medications . . . and she needs something to get through the weekend." Claimant reported tenderness. No swelling was noted.          9. On December 14 Casey Huntsman, M.D., examined Claimant prior to performing arthroscopy. Claimant reported "a lot of swelling," but Dr. Huntsman observed "trace effusion." He noted Claimant's knee had "improved dramatically." His patellar grind test was positive; Claimant reported pain with a McMurray's test, but again no click was noted. Her knee was otherwise normal. Upon diagnostic arthroscopy, he confirmed that no meniscal tear had occurred. A plica band and fat pad in her knee were shaved. All else was in "excellent condition." His post operative diagnosis: right knee medial plica band syndrome.          Medical Care—2006          10. On January 24 Dr. Huntsman released Claimant to return to full-duty work. He cautioned against kneeling and recommended allowing a 15-minute break every two hours. ...