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...