Rodriguez v. Consolidated Farms, LLC, 092415 IDWC, IC 2010-022129

• Case Date: September 24, 2015
• Court: Idaho

RODRIGO RODRIGUEZ, Claimant, v. CONSOLIDATED FARMS, LLC, dba ELK MOUNTAIN FARMS, Employer, and INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Surety, Defendants. No. IC 2010-022129 Idaho Workers Compensation Before the Industrial Commission of the state of Idaho September 24, 2015           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER AND DISSENTING OPINION           R.D. Maynard, Chairman           INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above entitled matter to Referee Michael E. Powers. Referee Powers conducted two hearings, the first on July 16, 2014 in Boise (Boise Hearing) and the second in Coeur d'Alene on July 23, 2014 (Coeur d'Alene Hearing). Claimant was present at the first hearing and was represented by Sam Johnson, Esq., of Boise. W. Scott Wigle, Esq., also of Boise, represented Employer/Surety. Regina Montenegro served as an interpreter. Oral and documentary evidence was presented at the Boise Hearing and testimony was presented at the Coeur d'Alene Hearing. The record remained open for the taking of two post-hearing depositions, those of Dr. Mary Barros-Bailey and Terry Montague. The parties submitted post-hearing briefs and the matter came under advisement on May 15, 2015. On or about August 11, 2015, Referee Powers provided the Commission with his proposed Findings of Fact, Conclusions of Law and Recommendation. The Commission has reviewed Referee Powers' proposed recommendation, along with the evidence and testimony of record. While the Commission ultimately reaches the same conclusion as did Referee Powers, the Commission believes that certain aspects of Referee Powers' recommendation require further elaboration and discussion. To that end, the Commission declines to adopt Referee Powers' recommendation, and adopts its own Findings of Fact, Conclusions of Law and Order, in which most of Referee Powers' proposed recommendation has been preserved.          ISSUE          The sole issue to be decided is the extent, if any, of Claimant's disability above his impairment including whether Claimant is an odd-lot worker.          CONTENTIONS OF THE PARTIES          Claimant contends that, as a result of a severe crushing injury to his right arm and certain non-medical factors, he is totally and permanently disabled.          While acknowledging the severity of Claimant's injury that placed certain restrictions on the use of Claimant's right (dominant) arm, Defendants contend that with modifications, Claimant could have returned to his time-of-injury job, but he chose to leave the area instead. Further, no physician has indicated that Claimant cannot work and there are jobs within his restrictions that are available in his labor market (Boise/Caldwell).          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The testimony of Claimant at the Boise hearing.

2. Joint Exhibits (JE) 1-32 admitted at the Boise hearing.

3. The testimony of ICRD consultant Richard Hunter and Employer's general manager Edward Charles Atkins, Jr., taken at the CDA hearing.

4. The post-hearing depositions of Terry L. Montague, M.A., taken by Claimant on December 19, 2014, and Mary Barros-Bailey, Ph.D., taken by Defendants on February 3, 2015.

         All objections made during the course of taking the above-referenced depositions are overruled.          FINDINGS OF FACT          1. Claimant was 56 years of age and resided in Boise at the time of the hearings. He was born in Mexico where he finished the fifth grade. Due to the death of his father at that time, Claimant had to leave school and work in the fields until he left for the United States in 1979 at age 21. He is currently a permanent, legal resident of the US.          2. When Claimant arrived in California from Mexico, he worked pruning and harvesting fruit trees. In 1989, Claimant moved to Bonners Ferry and began his employment with Employer, a 2000 or so acre hop farm. Claimant performed most of the tasks required to run the hops operation and most of his duties required the use of both of his hands. At the time of his industrial accident, Claimant was in charge of the irrigation system for the entire operation which, at times, required him to work seven days a week. He used a four-wheeler to go from field to field where he checked for problems with the drip irrigation system.          3. Claimant's employment was seasonal; however, he was always hired back at the beginning of the new season as he was considered a valuable employee with much institutional knowledge of the running of the operation as the result of his 21 years of employment there.          4. Claimant described the machine he was operating at the time of his accident this way:

It used to be that before the machine would cut the string in the field, bring it in, and, then, strip the string. The guide. Then they modified the system. Now the machines harvests [sic] the hops in the field and, then, they come and empty it in a loader and the hop goes in a band, a belt, and the machine swings it. The trash goes on one side and the hops go on the other side. But there are many, many belts, many chains. It is very loud the noise it makes and that's why when I had my accident I was alone and nobody could hear my screams, my yells.

Boise Tr., p. 31.          5. On September 8, 2010, Claimant severely injured his dominant right hand/arm:

When I started operating the machine - - and we always begin by checking everything to make sure the things are working well. There is a band^[1] in which the clean hops fall and that band began - - that belt began to work slowly and sometimes it would stop. It was not normal. There is - - the belt is there and the roller became loaded with dirt. It would accumulate. So, I carried - - I grabbed a tool, a hook, a cutting hook. My idea was to make a cut in the dirt and, then, apply an air hose to blow the dirt away, but when I enter my hand in order to make a gash the conveyor belt sped up. It caught my hand and it broke the three fingers and my arm up until here and I was trapped there for several minutes. I don't know. Around eight minutes. Something like this. While I was trapped there the band kept rolling and that was what ruined my tendons, the inside of my arms, my tendons, my - - nerves. I yelled and hollered, but nobody could hear me. One of the mechanics, Ricardo Mendez, he was fixing something else in another machine that had broken down, so very close to the machine where I was working. All the parts are right there for the machine. He came close to the machine to fix whatever he was working on and he was the one that heard my scream and he turned the machine off. He turned it off. And, then, he removed two screws from one of the sides and lowered it and I was able to take my hand off.

Boise Tr., pp. 32-33. 6. Claimant's subsequent medical treatment consisted of six surgeries, physical therapy, and resulted in physical limitations/restrictions.           7. In September 2011, before his sixth hand surgery,2 Claimant returned to work for four hours a day five days a week without success. Claimant was also offered employment with Employer after his sixth surgery but he declined because of the pain and the pain medications he was taking, as well as the fear that once his workers' compensation case was over he would be fired.          8. Claimant moved to Boise in July of 2012 to be near his daughter who was attending BSU. He is currently under the care of Kevin Krafft, M.D., a local physiatrist, who provides pain and sleep medications. Claimant receives Social Security Disability Insurance benefits. He is in good health other than his right arm/hand problems. He does not believe there is any work that he can perform due to his right upper extremity limitations.          9. Claimant testified that operating machinery requires the use of his right hand:

It's not that I would feel bad, if it's work - - it's hard to explain, because, for example, take a tractor. To climb up to a tractor and drive it, okay, but all the levers in the tractor, you drive with your left and the right hand is busy operating. That's in the tractors. If I take the water truck, it has a hose that I think is six inches - - you have to connect the hose and turn on the lever in order to - - the buttons in order to irrigate ahead of you or to the left or to the right, they are in our right hand. I can't do that. For the loader it has a knob on the - - in the steering wheel, but the lever is - - to grab, to lift, to release, it's on the right hand. To drive

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