KARMEN J. ROUSE, Claimant,
v.
PARROTT MECHANICAL, INC., Employer,
and
LUMBERMAN’S MUTUAL CASUALTY COMPANY, Surety, Defendants.
No. IC 00-010498
Idaho Workers Compensation
Before The Industrial Commission Of The State Of Idaho
November 8, 2004
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
RECOMMENDATION
INTRODUCTION
Pursuant
to Idaho Code § 72-506, the Industrial Commission
assigned the above-entitled matter to Referee Robert D.
Barclay, who conducted a hearing in Coeur d’Alene (CDA)
on June 2, 2004. Claimant was present in person and
represented by attorney Michael J. Verbillis of CDA.
Defendants were represented by attorney Eric S. Bailey of
Boise. The parties presented oral and documentary evidence.
This matter was continued for the taking of two post-hearing
depositions, the submission of briefs, and subsequently came
under advisement on September 7, 2004.
ISSUES
The
noticed issues to be resolved are:
1.
Whether Claimant suffered a personal injury arising out of
and in the course of employment;
2.
Whether Claimant is entitled to reasonable and necessary
medical care as provided for by Idaho Code § 72-432, and
the extent thereof;
3.
Whether Claimant is entitled to temporary partial or
temporary total disability (TPD/TTD) benefits, and the extent
thereof;
4.
Whether Claimant is entitled to permanent partial impairment
(PPI), and the extent thereof;
5.
Whether Claimant is entitled to attorney’s fees due to
Employer/Surety’s unreasonable denial of compensation
pursuant to Idaho Code § 72-804; and, 6. Whether the
Commission should retain jurisdiction beyond the applicable
Statute of Limitations.
ARGUMENTS
OF THE PARTIES
Claimant
argues she is entitled to the continuing medical benefits
necessary to treat her left knee and low back condition from
the time her claim was closed by Surety in May 2003 until the
present. She specifically seeks the costs associated with her
May 2003 and August 2003 knee surgeries. She further argues
she is entitled to time-loss benefits for seven weeks after
each of her 2003 surgeries, representing her periods of
recovery. Claimant also argues she is entitled to a 30% of
the lower extremity (LE) PPI rating for her left knee after
having been found medically stable in December 2000, and a 3%
of the whole person for her low back condition; ratings given
by Dr. Giesen, her treating physician. She further argues she
is entitled to attorney’s fees for Defendants’
egregious conduct in failing to pay for her May and August
2003 surgeries, the related time-loss benefits, and her two
PPI ratings.
Defendants
argue their denial of benefits for Claimant’s 2003
surgeries was reasonable since the surgeries were neither
necessary nor reasonably required by her physician, and that
their denial was supported by reasonable and competent
medical opinions. They further argue Claimant has never been
medically stable relative to her left knee, and that as a
consequence, they cannot be held liable for any claimed PPI
benefits and related attorney’s fees for failing to pay
these benefits since the issue is not ripe. Defendants agree
Claimant is entitled to the 3% of the whole person PPI rating
for her low back condition given by Dr. Giesen, but argue she
is not entitled to attorney’s fees on the issue because
the rating was initially disclosed at hearing. They further
argue Claimant cannot claim any benefits for her 2001 right
foot injury since she has already made a claim for that
injury with her current employer. Defendants also argue it is
inappropriate to address future medical care at this time
since medical benefits causally connected to an industrial
accident in reality have no statute of limitations and there
is no specific recommendation for surgery at this time.
Claimant
counters Defendants’ arguments are based on a
retrospective view of her condition and ignore the medical
record. She further argues there are no medical opinions to
indicate the care she received was unreasonable. Claimant
suggests Defendants are arguing that any type of reparative
and restorative surgery, when viewed retrospectively, can be
later disavowed as unnecessary. She indicates this
disingenuous approach marks a new low for an insurance
company that did not take the appropriate steps as events
unfolded. She seeks the costs associated with the two 2003
knee surgeries, seven weeks of time-loss benefits after each
surgery, the December 2000 PPI rating for her left knee, the
current PPI rating for her low back, and attorney’s
fees for Defendants’ cavalier attitude toward her.
EVIDENCE
CONSIDERED
The
record in this matter consists of the following:
1. The
testimony of Claimant, her spouse, Scott W. Rouse, and John
T. Giesen, M.D., taken at the June 2, 2004, hearing;
2.
Claimant’s Exhibits C1 through C9 admitted at the
hearing;
3.
Defendants’ Exhibits D1 through D11 admitted at the
hearing. Exhibit D11 is the deposition of Claimant taken on
February 19, 2004;
4. The
deposition of Warren J. Adams, M.D., with Exhibits 1 through
4, taken by Defendants on June 2, 2004;
5. The
deposition of Timothy Lovell, M.D., with Exhibit 1, taken by
Claimant on June 28, 2004.
All
objections made during the two post-hearing depositions are
overruled.
After
having carefully considered all of the above evidence, the
Referee submits the following findings of fact and
conclusions of law for review by the Commission.
FINDINGS
OF FACT
1.
Claimant, a bookkeeper, began working for Employer in March
1997 in accounts receivable. On February 15, 2000, she
slipped and fell at work, severely injuring her left knee.
Claimant was taken by ambulance to Kootenai Medical Center
(KMC) in CDA. X-rays showed a severely comminuted displaced
fracture of the patella. Claimant was admitted and referred
to John T. Giesen, M.D., an orthopedic surgeon; he became her
treating physician.
2. The
following day Dr. Giesen performed an open reduction with
internal fixation in an attempt to repair Claimant’s
left patella [the first surgery] at KMC. Due to the severity
of the fracture, the repair failed prior to Claimant leaving
the hospital.
3. On
February 18, 2000, Dr. Giesen performed a partial
patellectomy, a repair of the patellar tendon, and removed
the pins and wires implanted during Claimant’s first
surgery [the second surgery].
4.
During her recovery, Claimant underwent physical therapy at
North Idaho Physical Therapy (NIPT) in Hayden. On her first
visit, the therapist noted she had been experiencing low back
spasms over the past few weeks.
5. On
April 24, 2000, Dr. Giesen noted Claimant had been
experiencing back pain since her fall. He ordered a MRI. It
showed moderate degenerative disk disease at the L5-S1 level.
6. Dr.
Giesen restricted Claimant from working from February 15,
2000, the date of her industrial accident, until he released
her on June 5, 2000.
7.
Claimant completed her physical therapy on August 4, 2000.
The final report indicated she continued to have patella
femoral pain and quadriceps weakness, and that her low back
condition continued to bother her.
8. In a
note to Surety signed on August 14, 2000, Dr. Giesen
indicated Claimant would eventually need a total knee
arthroplasty (TKA), and assigned a PPI rating of 30% for loss
of leg at the hip. On September 12, 2000, Surety, through its
administrator, GAB Robins, citing Dr. Giesen’s opinion,
began paying Claimant a 30% of the LE PPI rating.
9.
Claimant returned to Dr. Giesen on September 27, 2000,
complaining of continued left knee and low back pain. He
opined she had clearly and severely aggravated a pre-existing
problem in her back and that it would be a permanent problem,
and that her knee would never be the same due to the amount
of patella that had to be excised. Dr. Giesen prescribed
physical therapy for Claimant’s back. It was conducted
at NIPT between October 2, 2000, and December 1, 2000.
10.
Claimant left Employer in October 2000, and shortly
thereafter began working for Verizon Communications, Inc., at
its DSL Center. Verizon provided its employees with group
health care insurance through Blue Cross, i.e., HMO
Blue; and with a disability policy with another insurance
company.
11. At
Surety’s request, Claimant was seen for an IME by Mark
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