Smith v. Smith, 021816 IDWC, IC 2012-024062

• Case Date: February 18, 2016
• Court: Idaho

HENRY STEVEN SMITH, Claimant, v. HENRY STEVEN SMITH, dba QUALITY APPLIANCE SERVICE, Employer, and HARTFORD UNDERWRITERS INSURANCE COMPANY, Surety, Defendants. No. IC 2012-024062 Idaho Workers Compensation Before the Industrial Commission of the state of Idaho February 18, 2016           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           Brian Harper, Referee          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 Coeur D'Alene, Idaho, on August 20, 2015. Claimant was represented by Stephen Nemec, of Coeur D'Alene. Emma Wilson, of Boise, represented Henry Steven Smith, dba Quality Appliance Service ("Employer") and Hartford Underwriters 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 4, 2016.          ISSUES          By agreement of the parties, 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;

3. Determination of Claimant's Average Weekly Wage; 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);

c. Permanent Partial Impairment (PPI);

d. Permanent Partial Disability in excess of impairment, including total permanent disability pursuant to the odd-lot doctrine; and

e. Attorney fees.

         CONTENTIONS OF THE PARTIES          On January 6, 2008, while in the course and scope of his employment as a self-employed appliance repair technician, Claimant slipped and fell on ice. From that accident, Claimant asserts he injured his right hip, which was diagnosed as greater trochanter bursitis, and bothers Claimant to this day. He also suffered an acute contusion to the median nerve in his right hand, which developed into carpal tunnel syndrome (CTS). Surgery was belatedly performed for this condition, but nevertheless left Claimant with permanent restrictions and pain in his right hand.          Claimant argues he is entitled to reimbursement of all medical costs associated with his industrial accident which he incurred after Surety "closed" its file and refused to provide Claimant further medical treatment. He is also entitled to temporary disability benefits from the date of the accident until June 1, 2015, and total permanent disability benefits thereafter. He is permanently disabled. His AWW is $979.56. He is entitled to attorney fees.          Defendants argue Claimant has been paid all benefits to which he is entitled. His current condition did not result from the industrial accident. He had arthritis symptoms in his hands and low back, and treated for hip pain prior to his accident. Other complaints developed years after his accident. Claimant's AWW should be based on his net earnings, and Surety has actually overpaid TTD benefits as a result. Claimant is not permanently disabled. Claimant has failed to prove he is entitled to attorney fees.          EVIDENCE CONSIDERED          The record in this matter consists of the following:          1. Claimant's testimony, taken at hearing;          2. The hearing testimony of Claimant's wife Lucy Smith, and witness Sandra Brewer;          3. Joint Exhibits (JE) 1 through 48, admitted at hearing1;          4. The post-hearing deposition transcript of Dan Brownell, taken on August 31, 2015;          5. The post-hearing deposition transcript of Nancy Collins, Ph.D., taken on September 16, 2015; and          6. The post-hearing deposition transcript of Robert Friedman, M.D., taken on September 25, 2015.          All objections preserved during the depositions are overruled.          Having considered the evidence and briefs of the parties, the Referee submits the following findings of fact and conclusions of law for review by the Commission.          FINDINGS OF FACT          1. At the time of hearing, Claimant was a sixty-six year-old unemployed married man living in Worley, Idaho.          2. Since 1988, Claimant has owned and operated a sole proprietorship, last known as Quality Appliance Services. His job duties included all aspects of the appliance repair business, including doing the taxes, managing advertising, and doing appliance repair work in the Coeur d'Alene/Spokane Washington geographical area.          3. For approximately twenty-one years prior to 1998, Claimant worked primarily for Sears, starting in shipping, and progressing through warehouse work to warehouse manager, to the shipping, receiving and delivery department, and finally to the auto service center manager. He had supervisory duties for several years in his various managerial positions. He also had a four-year stint in the Coast Guard and worked for one year at Food Services of America before starting his own business.          4. On January 6, 2008, Claimant slipped and fell on ice after repairing a hot water heater for a client. He was carrying a wallet in his right rear pants pocket, and fell directly onto it. He felt immediate "lightning bolt" pain from his right hip shooting up through his chest and into his left shoulder. He was carrying a soft-sided tool bag in each hand when he fell.          5. Although Claimant was in pain after the fall, he continued to work. He first went to a physician on February 28, 2008, at which time he saw Michael Metcalf, M.D., his family doctor in Spokane for his regular physical, as well as fall-related complaints.          6. Dr. Metcalf's records note the following history and complaints:

Fell about 6 weeks ago on the ice, hard. [Claimant] is having problems walking up stairs, with pain in the hip. He has L&I coverage. Has also some pains in neck and both shoulders since. *** *** ***R 3-4 fingers numb for awhile, just at tips. This has not bothered. ***Sleep issues are much better. Stresses are gone, going to work part time. Marriage is good.*** *** .

(Each ****represents a complaint not directly relevant to this discussion.) JE 6-1.          7. Dr. Metcalf conducted a thorough physical examination. Of note were the findings that Claimant had right wrist arthritic changes but negative for Carpal Tunnel Syndrome findings. Also, Claimant had pain in his right hip exhibited during range of motion examination. Dr. Metcalf appears to have causally connected Claimant's right hip complaints to the industrial accident. His notes state "L&I claim re the hip." ("L&I" is a term commonly used throughout this case for Washington's worker's compensation system, administered by the Washington State Department of Labor & Industries.) Dr. Metcalf ordered a low back and right hip MRI.          8. Claimant filed a First Notice of Injury on February 28, 2008, and Surety opened a file. On March 4, 2008, Claimant called Surety regarding his claim. Surety's notes related, in relevant part, the following history as being provided by Claimant;

Went down on buttocks. Hurt upper back and shoulders. Was limping and was sore, but not too bad. Then 2-3 weeks ago it got worse. Pain into rt rear into hip pain. MRI done last Friday. L3-L4. Went to Dr. Metcalf. Assoc. Family Physicians, in Spokane, WA. Was in for physical and Dr. told him to file claim. He ordered MRI. MRI showed DDD. …Works in Spokane and lives near CDA, ID. Does some work in Idaho. Does 98% of work in Spokane.

JE 34-17.          9. Claimant's MRI showed minimal bilateral hip degenerative changes, moderate degenerative disc disease at right L4-5 junction, and no focal soft tissue abnormality.          10. Claimant was next seen by Dan Osborne, D.C., on March 20, 2008, complaining of right hip and low back pain. Dr. Osborne's notes reflect a history from Claimant of a fall on January 6, 2008 directly onto his right ischial tuberosity (also known as "sitting bones") region. The fall caused immediate pain, which persisted for "several weeks." His main complaint was increased right hip pain and difficulty when climbing stairs. Claimant was working at the time, although he claimed to have passed up jobs which required walking up "too many" stairs. Claimant also acknowledged past regular chiropractic...