Smith v. OX Industrial, LLC, 062716 IDWC, IC 2012-013082

• Case Date: June 27, 2016
• Court: Idaho

JASON SMITH, Claimant, v. OX INDUSTRIAL, LLC, Employer, and IDAHO STATE INSURANCE FUND, Surety, Defendants. No. IC 2012-013082 Idaho Workers Compensation Before the Industrial Commission of the state of Idaho June 27, 2016           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           R.D. Maynard, Chairman.          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Industrial Commission assigned the above-entitled matter to Referee Douglas A. Donohue who conducted a hearing in Idaho Falls on May 27, 2015. Andrew Adams represented Claimant. V. Dean Dalling represented Defendants. After obtaining post-hearing depositions the parties submitted briefs. The case came under advisement on February 22, 2016. The Commission has reviewed the findings of fact, conclusions of law and recommendation authored by Referee Donahue and the Commission in large part concurs with Referee Donahue's recommendations. However, the Commission declines to adopt the Referee's recommendation in order to give different treatment to the issue of attorney's fees and to address whether Claimant's conduct is sufficient to warrant forfeiture of benefits pursuant to Idaho Code §72-801.          ISSUES          According to the Notice of Hearing, the issues are as follows:

1. Whether the condition for which Claimant seeks benefits was caused by the alleged industrial accident;

2. Whether and to what extent Claimant's condition is due in whole or in part to a subsequent intervening cause;

3. Whether and to what extent Claimant is entitled to benefits for

a. Permanent partial impairment,

b. Disability in excess of PPI,

c. Medical care, and

d. Attorney fees;

4. Whether Claimant is entitled to total permanent disability under the odd-lot doctrine; and

5. Whether apportionment of permanent disability for a preexisting condition is appropriate under Idaho Code § 72-406.

         CONTENTIONS OF THE PARTIES          Claimant contends that his industrial accident—while welding, a piece of hot slag dropped into his left ear canal—has caused significant impairment and disability. Hearing was totally lost in that ear; vestibular sense was impaired; he suffers vertigo. Defendants' IME physicians rated Claimant's impairment at 6% for hearing loss and 42% for vestibular impairment. These physicians inappropriately retracted the vestibular impairment rating after being made aware of a surveillance video. Claimant's treating physician rated Claimant's vestibular impairment at 27% and did not change his opinion as a result of the surveillance video. The surveillance video shows ongoing vestibular issues. Disability analysis should consider that Claimant can no longer wear a welding helmet because of the implantation of a bone-amplified hearing aid ("BAHA"), a cochlear implant, together with his permanent loss of balance, tinnitus, headaches and non-medical factors. Vocational experts who opined based upon physicians' retractions of PPI should not be given weight. Claimant will require future medical care. Surety unreasonably relied upon their physicians' retraction of PPI amounts. Surety unreasonably failed to install protective equipment needed in Claimant's home. Defendants should be liable for attorney fees under Idaho Code § 72-804.          Defendants contend they have paid all benefits due him for this accident, including a 6% PPI. Claimant is not a credible witness. He has falsified his claim for permanent disability. Surveillance video was taken in May 2013 and April 2014. It shows he intentionally misrepresented his condition to physicians. The surveillance video shows Claimant lied in deposition. Claimant's deception and dishonesty should preclude any finding of permanent disability in excess of the 6% PPI. Defendants acted reasonably at all times.          EVIDENCE CONSIDERED          The record in the instant case included the following:

1. Oral testimony at hearing of Claimant, surveillance investigator Anthony Reyna, and former coworker Travis Greene;

2. Joint exhibits 1 through 32 admitted at hearing, except that Exhibit 13, identified "Swedish Medical Center" includes no documents; and

3. Post-hearing depositions of treating physician Terry Baker, M.D., ear, nose, and throat (ENT) specialist Arthur Jones III, M.D., and physiatrist Beth Rogers, M.D. All objections in post-hearing depositions are Overruled.

         FINDINGS OF FACT          1. Claimant worked for Employer as a welder. On May 23, 2012, hot metal slag dropped deep into his left ear as he welded. After some minutes of initial confusion about the best course of action, medical attention was obtained. In post-hearing deposition treating otolaryngologist Terry Baker, M.D. opined the slag was "hot and smoldering" in Claimant's ear for at most a few minutes before it cooled and ceased to cause injury. The delay in obtaining treatment did not exacerbate Claimant's injury.          2. The hot slag perforated Claimant's eardrum and burned nerves and structures in his inner ear. Multiple surgeries were required. Unable to repair the eardrum to functionality with a graft, the ear canal was sewn shut. Claimant lost all hearing in his left ear and required the implantation of a BAHA to restore it. Dr. Baker has never experienced complaints of chronic pain or headaches from other BAHA recipients. Such recipients generally return to their former occupations.          3. Claimant continued to report pain, dizziness, and dysequilibrium of a severe nature to his physicians. He received substantial treatment and was deemed to be in an extended period of recovery which prevented his return to work.          4. A late-April 2014 surveillance video showed Claimant functioning at levels inconsistent with his representations to physicians. Among other things, it showed him changing from driver to passenger and back again out of view of doctors' offices with apparent intention to provide a false impression to medical providers who might observe him arriving or leaving from these appointments.          5. A few weeks after the video was taken, in deposition on June 12, 2014, Claimant testified to continued symptoms and functional incapacity. That testimony was frankly inconsistent with Claimant's function as observed in the lengthy video. At hearing Claimant admitted he gave false and misleading testimony to specific questions in his deposition.          Medical Care: Beginning May 23, 2012          6. Claimant was taken to a Mountain View Hospital quick care facility for treatment. Complaints included "room spinning, nauseated, HA [headache], left ear pain, vomiting." Examination included a finding of balance problems. The extent of inner ear damage was not fully appreciable by the physician. Nevertheless, Claimant was given a release to return to work limited only from operating machinery while on narcotic pain medication. The accident was recorded as having happened at 9:00 a.m. with discharge at 10:20 a.m. The record does not identify the time Claimant arrived at Mountain View. Upon discharge Claimant was referred to ENT physician Richard Lee, M.D. for immediate additional care.          7. Dr. Lee examined Claimant's burned ear canal and found a perforated tympanic membrane. He ordered an audiogram. He restricted Claimant from all work for one week.          8. May 24, 2012 audiological testing was consistent with a perforated left tympanic membrane.          9. On May 29, 2012, Dr. Lee reviewed the audiogram. It showed traumatic left ear hearing loss. He noted Claimant's symptoms, including continued ear pain, diminished hearing in that ear, ear drainage, tinnitus, neurological disturbance in taste, and sensory issues in his tongue. He noted "dizziness and nausea has resolved." After examination he recommended a CT scan to determine whether slag remained in the ear canal.          10. Also on May 29, 2012, after a follow-up visit, a Mountain View physician released Claimant to return to work without restrictions but with a recommendation to "use earplugs when welding."          11. On June 5, 2012, Dr. Lee noted complaints including, ear pain radiating into Claimant's face and jaw, dizziness, tinnitus, headaches, and neurological symptoms all increasing. Upon examination he noted Claimant's ear was still draining and the burn injury was improving.          12. On June 6, 2012, Claimant visited ENT surgeon Terry Baker, M.D. He recommended surgery to repair the perforated eardrum. He took Claimant off work. A CT scan showed some slag remained...