Salinas v. Bridgeview Estates, 030416 IDWC, IC 2011-014120

Case DateMarch 04, 2016
CourtIdaho
LETICIA SALINAS, Claimant,
v.
BRIDGEVIEW ESTATES, Employer,
and
OLD REPUBLIC INSURANCE COMPANY, Surety, Defendants.
No. IC 2011-014120
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
March 4, 2016
          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           R.D. Maynard, Chairman          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Brian Harper, who conducted a hearing in Twin Falls, Idaho, on August 6, 2015. Claimant was represented by Patrick Brown, of Twin Falls. Alan Gardner, of Boise, represented Bridgeview Estates ("Employer") and Old Republic Insurance Company ("Surety"), Defendants. Oral and documentary evidence was admitted. Post-hearing depositions were taken and the parties submitted post-hearing briefs. The matter came under advisement on January 13, 2016.          ISSUES          The issues to be decided are:
1. Whether the condition for which Claimant seeks benefits was caused by the industrial accident;
2. Whether Claimant's condition is due in whole or in part to a pre-existing and/or subsequent injury/condition; and
3. Whether and to what extent Claimant is entitled to the following benefits:
a. Medical care, past and future;
b. Permanent Partial Impairment (PPI);
c. Permanent Partial Disability in excess of impairment (PPD); and
d. Attorney fees.
         CONTENTIONS OF THE PARTIES          On or about May 5, 2011, while in the course and scope of her employment as a registered nurse for Employer, Claimant injured her back while conducting a patient transfer. Claimant asserts that while she was still treating, Surety informed her that the claim was being "temporarily denied" while it investigated Claimant's medical background. The temporary denial in effect became permanent when Surety stopped communicating with Claimant, and she lacked funds to continue her back treatment.          By April 2013, Claimant had the personal funds to begin treating for her continuing back issues. Claimant then hired an attorney, and pursued her previously-denied benefits.          Claimant argues she is entitled to reimbursement of all medical costs associated with her industrial accident incurred after Surety refused to provide further medical treatment, as well as future palliative care. She is also entitled to a two percent (2%) impairment rating, and permanent disability benefits. Claimant is entitled to attorney fees.          Defendants argue Claimant has been paid all benefits to which she is entitled. She discontinued her medical care after her sprain/strain injury from a work accident, and did not resume treatment for over eighteen (18) months. She continued to work during this time. Her current condition is not the result of the industrial accident.Claimant has no permanent impairment or disability from the accident. Claimant has failed to prove she is entitled to attorney fees.          EVIDENCE CONSIDERED          The record in this matter consists of the following:
1. Claimant's testimony, taken at hearing;
2. Claimant's Exhibits (CE) A through L, admitted at hearing;
3. Defendants' Exhibits (DE) 7 through 15, admitted at hearing;
4. The post-hearing deposition transcript of Anthony Sirucek, D.C., taken on September 23, 2015; and
5. The post-hearing deposition transcript of Michael Hajjar, M.D., taken on September 25, 2015.
         Post-Hearing Deposition Objections and Conduct          Defense counsel lodged forty-five (45) objections during the deposition of Dr. Sirucek, and fifty-three (53) objections during Dr. Hajjar's deposition cross-examination. Additionally, defense counsel moved to strike a non-responsive statement of Dr. Sirucek at page 93 of his deposition. Defendants' ninety-eight (98) objections are overruled; the motion to strike is granted. (Counsel's multiple "asked and answered" objections, which may have been sustained at hearing, are overruled on the grounds that the legitimate goal of such an objection is to promote the flow of testimony, but by the time the objections are read and considered after-the-fact, its legitimate purpose is moot.)          Claimant's counsel lodged five (5) objections during Dr. Hajjar's deposition. He also moved to strike a non-responsive answer from Dr. Hajjar at page 9 of his deposition. The five (5) objections are overruled; the motion to strike is granted.          Due to the behavior of both attorneys, reviewing the deposition transcripts was an exercise in frustration, and provides the opportunity to remind all practitioners of the standards expected during depositions in the workers' compensation arena.          To begin with, the "no-holds-barred" mentality which is often a part of civil litigation has no place in workers' compensation proceedings. Unlike civil litigation, which is truly an adversarial-based process, the goal of workers' compensation – to provide an injured employee with those statutory benefits to which the worker is entitled – should be shared by all parties. While honest differences of opinion may well exist when seeking to determine benefit entitlement, attempting to gain an advantage through gamesmanship, hyper-technical application of the procedural rules, subterfuge, harassment in any form, production delay, and similar tactics, will not be tolerated.          Post-hearing depositions are a part of the hearing process, and should be conducted with the same professionalism as would be expected if the interrogation was taking place at hearing. Incessant interrupting with objections, speaking objections, and comments seemingly geared toward disrupting the flow of testimony would not be tolerated at hearing and are likewise inappropriate during depositions. Counsel arguing with each other, making snide comments, telling anyone to "shut up," or making belittling remarks, is unprofessional and incredibly rude. The deponent, as well as the opposing attorney, deserves more respect than to be subjected to this type of conduct. It is also beyond debate that intimidating behavior, such as standing over a deponent or opposing counsel, yelling and gesturing, or stomping about the room is also impermissible. Repeating the same question ad nauseam, and disparaging or arguing with a witness is also not tolerable.          JRP 16 is broad enough to sanction such abusive conduct. Additionally, Idaho Code § 72-715 addresses misbehavior and obstruction of the hearing process, and provides penalties therefore. Attorneys might consider asking for a brief recess to regain their composure when they feel their professionalism slipping. No one should risk sanctions because they let themselves get carried away with the moment.          Having considered the evidence and briefing of the parties, the Referee submits the following findings of fact and conclusions of law for review by the Commission.          FINDINGS OF FACT          Accident and Post-Accident Medical Care          1. On or about May 5, 2011, Claimant, a registered nurse working for Employer in Twin Falls, injured her low back during a patient transfer while in the course and scope of her employment.          2. Defendants directed Claimant to Douglas Stagg, M.D., at St. Luke's Clinic – Occupational Medicine in Twin Falls.          3. At her initial visit on June 1, 2011, Claimant complained of diffuse low back pain with intermittent radicular pain into the right groin area. She claimed no prior back problems.          4. Dr. Stagg diagnosed low back strain and imposed temporary restrictions of no lifting, pushing or pulling greater than ten (10) pounds, and no transfers. These restrictions were to remain in place until Claimant's next appointment on June 6. Dr. Stagg prescribed stretching exercises, walking, ice and heat to the low back, together with ibuprofen.          5. On her June 6, 2011 visit, Claimant's right-sided radicular discomfort had subsided, but she had developed a similar pain into the left groin and hip area. Her movements, such as gait and flexion, were improving. Dr. Stagg reduced her ibuprofen regimen, and left her work restrictions intact until her next scheduled visit of June 9, 2011.          6. On June 9, 2011, Claimant reported very little discomfort in her low back, but still had occasional radicular-type paresthesias and pain into her left groin. Dr. Stagg prescribed five (5) physical therapy treatment sessions and...

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