Roberts v. Portapros, LLC, 101119 IDWC, IC 2019-008048

Case DateOctober 11, 2019
CourtIdaho
TRAVIS ROBERTS, Claimant,
v.
PORTAPROS, LLC., Employer,
And
WESCO INSURANCE CO., Surety, Defendants.
IC 2019-008048
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
October 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 Brian Harper, who conducted an expedited hearing in Boise, Idaho, on July 1, 2019. Daniel Luker represented Claimant. Eric Bailey represented Defendants. The parties produced oral and documentary evidence at the hearing and submitted briefs. No post-hearing depositions were taken. The matter came under advisement on August 20, 2019. The undersigned Commissioners have chosen not to adopt the Referee’s recommendation and hereby issue their own findings of fact, conclusions of law, and order for different treatment on the application of Idaho Code § 72-403 and Malueg.          ISSUES          The issues for hearing were limited to:          1. Whether and to what extent Claimant is entitled to the following benefits:
a. Temporary disability benefits, total or partial (TTD/TPD); and
b. Attorney Fees.
         All other issues were reserved.          CONTENTIONS OF THE PARTIES          Claimant contends he injured his lumbar spine in a work-related accident on March 8, 2019, and is still within his period of recovery. Defendants are wrongfully denying Claimant ongoing temporary disability benefits, and past TTD benefits were unreasonably delayed, ultimately being paid the day before hearing. Claimant is entitled to continuing disability benefits for the duration of his ongoing period of recovery and attorney fees for Defendants’ unreasonable denial and delay of such benefits as set out above.          Defendants note that Claimant was fired for cause on March 9, 2019. They argue that after his March 8, 2019 work accident, Claimant received temporary disability benefits from March 11, when he was first given light-duty work restrictions which Employer could not accommodate, through April 24, when Claimant’s work restrictions were upgraded to a forty-pound lifting restriction.1 At that time Employer could have accommodated the restriction, but did not offer such work to Claimant due to his previous termination for cause. Instead, as of April 25, TTD benefits were stopped. Claimant has no right to continuing TTD payments for three reasons. First, Claimant’s termination for cause unrelated to his industrial accident removed Defendants’ duty to pay TTD when Claimant could have returned to work but for the termination. Second, Claimant refused suitable and available work, and unreasonably failed to seek work. Finally, Claimant reached MMI on May 13, and no matter what, is not eligible for TTD benefits thereafter. His subsequent accident shortly thereafter caused a new injury, and thus even if Claimant had not previously reached MMI, this new injury would constitute a superseding event.          EVIDENCE CONSIDERED          The record in this matter consists of the following:          1. The testimony of Claimant and witnesses Chelsea Piet and Ricky Parks taken at hearing; and          2. Joint exhibits (JE) 1 through 15 admitted at hearing.          The objection in Claimant’s deposition (JE 13) is overruled.          FINDINGS OF FACT          1. Claimant was working for Employer on Friday, March 8, 2019, when he injured his low back. Notice is not at issue herein. Surety has accepted the claim and paid all medical expenses associated with this injury to date of hearing.          2. Claimant did not immediately seek medical care. Instead he went to work as scheduled the next day. Claimant testified his low back was really hurting, making it difficult to complete his work duties. As a result, Claimant left work early.2 He went home, but did not see a doctor that weekend.          3. Claimant’s next scheduled work day was Monday, March 11, 2019. On Sunday Employer called and advised Claimant to come to work the next day at 8 a.m. Claimant did as instructed. However, the computer would not let him “clock in.” He was then instructed to meet with management. At that meeting on March 11, Claimant was fired.          4. Employer’s representative and general manager Ricky Parks testified that Claimant had been repeatedly warned about missing excessive work, including a written “final warning” letter in January 2019. When Claimant left work early on March 9, 2019, Employer decided to terminate him.          5. Later that same Monday, after communicating with Mr. Parks, Claimant sought medical care for his low back at Nampa Occupational Health, where he was diagnosed with a lumbar strain. He was placed on light-duty restrictions with no bending, twisting, or stooping, and a ten-pound lifting limit.          6. Claimant was placed on sedentary work restrictions the following week after reporting increasing symptoms. Physical therapy was initiated. Claimant failed to improve.          7. By the end of March, Claimant was referred to Cody Heiner, M.D., of Boise Occupational Health. Dr. Heiner discontinued physical therapy and ordered an MRI. Sedentary work restrictions were continued.          8. After reading the MRI, Dr. Heiner diagnosed Claimant with a left-sided herniated nucleus pulposus, L4-5. Dr. Heiner considered an epidural steroid injection and started Claimant on gabapentin with physical therapy, pain medication, and home exercises. Claimant received a ten pound lifting restriction.          9. Approximately two weeks later, on April 25, Claimant reported significant symptom improvement when he returned to Dr. Heiner. In light of the improvement Dr. Heiner cancelled the proposed injections, continued physical therapy, and modified Claimant’s restrictions to forty pounds lifting. Claimant’s hydrocodone was discontinued.          10. Claimant next saw Dr. Heiner on May 13 at which time Claimant told the doctor his left-sided low back and leg pain was “nearly gone” with just some mild aching and weakness at times. Claimant expressed a desire to get serious about finding employment, (he had not worked since March 8), and Dr. Heiner released Claimant to full duty with no restrictions, continued weekly physical therapy, and educated him on lifting mechanics. Dr. Heiner was hopeful that with the rate of improvement Claimant was showing, he could be rated for permanent partial impairment by early June.          11. On May 24, Claimant called Dr. Heiner’s office. He wanted to cancel his face-to-face visit with Dr. Heiner scheduled for that day, and instead asked if the doctor would reinstate work restrictions. Claimant relayed that he had “re-aggravated” his back carrying his daughter to their house after she had crashed her bicycle. He also relayed an event where he “fell down the stairs in his home.” These incidents made it so Claimant felt he could not “possibly tolerate the 40 lb. restrictions.” Dr. Heiner acquiesced to Claimant’s request and instituted a ten pound lifting restriction until he could see Claimant at a re-scheduled office visit on June 3. JE 4, pp. 106, 107.          12. When Claimant next saw Dr. Heiner on June 3, he complained of low back and right-sided lower extremity pain, but his left leg, which had been previously bothersome, was still pain free with no weakness. Claimant had normal posture, gait, and range of motion. Dr. Heiner noted Claimant had no symptoms in his lower extremities, but had experienced a mild setback in low back pain. Dr. Heiner felt a “few more” physical therapy visits would be beneficial, along with home exercises, and Flexeril and ibuprofen. Dr. Heiner imposed a forty-pound lifting restriction.          13. By Claimant’s next office visit on June 24, his right-sided back pain was gone. He still had occasional left-sided low back and lower extremity pain. All testing was normal. Dr. Heiner suggested three options for treatment: continuing with the same course of treatment, gabapentin for neuropathic pain, or steroid injections. Claimant chose gabapentin treatment, along with continued physical therapy and home exercises. The lifting restriction was kept in place.          14. At the time of hearing Claimant’s condition was unchanged from June 24.          DISCUSSION AND FURTHER FINDINGS          15. The first issue for resolution herein is whether Claimant is entitled to additional...

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