Shaw v. Caldwell Transportation Co., Inc., 113018 IDWC, IC 2014-012378

• Case Date: November 30, 2018
• Court: Idaho

DALE SHAW, Claimant, v. CALDWELL TRANSPORTATION CO., INC., Employer, and IDAHO STATE INSURANCE FUND, Surety, Defendants. No. IC 2014-012378 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho November 30, 2018           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           Thomas E. Limbaugh, 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 Boise, Idaho, on January 16, 2018. Claimant was represented by Jason Thompson, of Boise. Neil McFeeley, of Boise, represented Caldwell Transportation Company, Inc., (“Employer”), and State Insurance Fund, (“Surety”), Defendants at hearing. Oral and documentary evidence was admitted. Post-hearing depositions were taken and the parties submitted post-hearing briefs. The matter came under advisement on August 30, 2018.          ISSUES          The noticed issues for resolution 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 injury or condition;

3. Whether Claimant’s condition is due in whole or in part to a subsequent injury, disease, or cause; and

4. Whether and to what extent Claimant is entitled to the following benefits:

a. Medical care;

b. Temporary disability benefits, partial or total (TPD/TTD); and

c. Attorney fees.

         The first three listed issues are subsumed into the discussion and resolution of issue 4a., whether Claimant is entitled to the future medical care sought by him.          CONTENTIONS OF THE PARTIES          On May 1, 2014, Claimant injured his right knee (among other injuries which are not at issue) while in the course and scope of his employment. Claimant argues he needs a total right knee replacement surgery as a result of the subject accident. Defendants refuse to authorize the surgery. Claimant is entitled to attorney fees.          Defendants argue Claimant’s need for surgery is in no way related to the industrial accident in question. Instead, the surgery is due to the natural progression of Claimant’s longstanding arthritis following a prior knee surgery. Medical benefits and temporary disability claims for Claimant’s proposed surgery should be denied. Attorney fees are not appropriate.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. Claimant’s testimony, taken at hearing;

2. Joint Exhibits (JE) 1 through 14, admitted at hearing;

3. Joint Exhibit (JE) 15, admitted post hearing by order of the undersigned Referee at hearing^[1];

4. The post-hearing deposition transcript of Tom Faciszewski, M.D., taken on April 10, 2018; and

5. The post-hearing deposition transcript of Stanley Waters, M.D., taken on April 18, 2018.

         The objection raised on page 24, line 1, of Dr. Faciszewski’s deposition is sustained, and the response to the question is stricken. No other objections are sustained.          FINDINGS OF FACT          1. At the time of hearing Claimant was 58 years old. In 2011, he and his wife moved from Maryland to Nampa. Claimant took a job with Employer as a school bus driver and trainer for new drivers. He also worked in the shop and washed coach busses for extra money. At the time of hearing Claimant was employed full time by May Trucking as a long-haul driver.          Pre-Accident Medical History of Relevance          2. In 1983, Claimant injured his back in a motor vehicle accident. Claimant had back surgery in 1985. He had another surgical procedure on his back in 2005 after falling off a ladder. Claimant suffers chronic pain from his back injuries. Claimant acknowledged he had been on prescription pain medication since the 1983 accident.          3. Claimant had his first left knee meniscectomy surgery in or around 1996, and his second in 2003. Claimant had a right knee meniscectomy in 2002. The knee surgeries were not the result of any specific incident. Claimant’s treating physician noted Claimant’s right knee surgery was due to “degenerative wear and tear”. JE 12, p. 340.          4. When Claimant moved to Idaho, he became a patient of Rick Roberts, M.D., for management of his hypertension, hypercholesterolemia, and chronic pain. On his first visit, Claimant told Dr. Roberts that he had been on methadone and Percocet for “an extended time” while under the care of his prior pain management physician, and needed his medications refilled. JE 5, p. 148. Dr. Roberts assessed, among other things, chronic pain syndrome and osteoarthritis – multiple sites. Dr. Roberts refilled Claimant’s pain medications for Claimant’s chronic pain and osteoarthritis. Claimant saw Dr. Roberts on a regular basis thereafter.          5. In his office notes of April 8, 2014, Dr. Roberts, under the “history” heading noted:

[O]steoarthritis of knees: Some years ago after sustaining [sic] an orthopedist, [Claimant] was told he would eventually need total knee replacements. He has had increasing pain over time. It is not too bothersome to the point that he would like to be referred back to see an orthopedist.

JE 5, p. 167. This statement has been the focus of much debate among the parties; its significance and limitations will be discussed hereinafter.          6. Claimant filed for Social Security Disability in November 2013. As part of the process, Claimant was seen by James Bates, M.D. Statements made by Claimant and Dr. Bates in the course of the application process will be examined subsequently.          Accident and Post-Accident History of Medical Treatment          7. On May 1, 2014, Claimant was struck from behind and knocked down by a playful German Shepard “guard dog” while in the course and scope of his employment on Employer’s property. Claimant reported the incident and resultant injuries to his right knee, left elbow and left wrist to the shop supervisor.          Initial Treatment and Physical Therapy          8. A week after the accident, on May 7, 2014, Claimant went to the “company doctor”, Kevin Chicoine, M.D.          9. Dr. Chicoine ordered right knee x-rays, which showed no fracture or dislocation, and minimal marginal spurring in all three compartments with minimal joint space narrowing in Claimant’s medial and lateral compartments, described as “early tricompartmental degenerative changes”. Claimant had no visible soft tissue swelling. JE 2, p. 5. X-rays of Claimant’s left hand and elbow were negative.^[2] Physical therapy was prescribed.          10. On May 14, 2014, Claimant returned to Dr. Chicoine after starting physical therapy. Dr. Chicoine found Claimant’s right knee was nontender, with no effusion, and no pain with walking. Dr. Chicoine diagnosed a knee strain and released Claimant to regular duty work with no restrictions. Ultimately, on June 20, 2014, Dr. Chicoine released Claimant from his further care, although by then Claimant had been referred to Stanley Waters, M.D., for his continuing left elbow and hand pain.          11. Claimant initially underwent physical therapy (P/T) from May 8, 2014 through September 17, 2014 at Caldwell Physical Therapy.          12. When Claimant first presented for P/T, he complained of right knee, left hand, and left elbow pain. His knee pain was rated at 4/10; Claimant was tender at his right medial joint line. The therapist diagnosed a right knee strain. Claimant was given home exercises in addition to continued in-office P/T.          13. Less than a week after P/T commenced (May 13, 2014), Claimant presented with a bruise on his right calf, among other symptoms, stemming from a motorcycle mishap the previous day. JE 3, p. 22. Claimant’s right knee pain was also temporarily exacerbated. However, soon thereafter Claimant’s right knee pain diminished to 1 or 2/10, although his elbow continued to bother him. See, e.g., JE 3,pp. 68, 70, 72 (no reference in P/T records of any pain in Claimant’s right knee, with notation on August 21, 2014 that Claimant’s right knee “hardly bothers him now”.)          14. Physical therapy notes of September 17, 2014 indicate Claimant was ready for discharge with continuing home exercises. At that time Claimant’s right knee “[was] doing very well” with Claimant “tolerating his work without problems”. JE 3, p. 81.          Dr...