Soderling v. West Ada School District, 031920 IDWC, IC 2014-024042

• Case Date: March 19, 2020
• Court: Idaho

DIXIE SODERLING, Claimant, v. WEST ADA SCHOOL DISTRICT, Self Insured Employer, and STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendants. No. IC 2014-024042 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho March 19, 2020          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           Thomas P. Baskin, Chairman          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Alan Taylor, who conducted a hearing in Boise on February 8, 2019. Claimant, Dixie Soderling, was present in person and represented by Taylor Mossman-Fletcher, of Boise. Defendant Employer, West Ada School District, was represented by Alan R. Gardner, of Boise. Defendant, State of Idaho, Industrial Special Indemnity Fund, was represented by Paul J. Augustine, of Boise. The parties presented oral and documentary evidence. Post-hearing depositions were taken, and briefs were later submitted. The matter came under advisement on September 12, 2019.          The undersigned Commissioners have chosen not to adopt the Referee’s recommendation and hereby issue their own findings of fact, conclusions of law and order.          ISSUES          The issues to be decided are:

1. Claimant’s entitlement to medical care;

2. Claimant’s entitlement to temporary disability benefits;

3. The extent of Claimant’s permanent impairment attributable to the industrial accident and that attributable to pre-existing injuries or conditions;

4. The extent of Claimant’s permanent disability, including whether Claimant is totally and permanently disabled pursuant to the odd-lot doctrine or otherwise;

5. Whether apportionment for a pre-existing or subsequent condition pursuant to Idaho Code § 72-406 is appropriate;

6. Whether the Industrial Special Indemnity Fund is liable under Idaho Code § 72-332;

7. Apportionment under the Carey formula; and

8. Claimant’s entitlement to an award of attorney fees.

         CONTENTIONS OF THE PARTIES          All parties acknowledge Claimant suffered an industrial accident on September 5, 2014, when she fell from a counter at work and struck her head. Claimant asserts she is now totally and permanently disabled and is entitled to additional medical, temporary disability, and permanent impairment benefits and to attorney fees for Employer/Surety’s unreasonable denial of benefits. Employer/Surety assert that Claimant is not totally and permanently disabled, and in fact has proven no permanent impairment and no permanent disability due to her industrial accident. In the alternative, they maintain that if Claimant is deemed totally and permanently disabled it is due to the combined effects of her industrial accident and pre-existing permanent impairments for which ISIF bears responsibility. ISIF maintains that Claimant’s pre-existing conditions do not combine with her industrial accident to render her totally and permanently disabled. Rather, ISIF asserts Claimant’s industrial accident alone has rendered her totally and permanently disabled.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The Industrial Commission legal file.

2. The parties’ Joint Exhibits 1 through 51, admitted at the hearing.

3. The post-hearing deposition testimony of James H. Bates, M.D., taken by Claimant on February 28, 2019.

4. The post-hearing deposition testimony of Jackie J. Whitesell, M.D., taken by Claimant on April 22, 2019.

5. The post-hearing deposition testimony of Robert H. Friedman, M.D., taken by Defendants Employer/Surety on May 9, 2019.

6. The post-hearing deposition testimony of Paul J. Montalbano, M.D., taken by Defendants Employer/Surety on May 22, 2019.

7. The post-hearing deposition testimony of Michael F. Enright, Ph.D., taken by Defendants Employer/Surety on May 23, 2019.

8. The post-hearing deposition testimony of Barbara K. Nelson, M.S., CRC, taken by Defendant ISIF on June 17, 2019.

         All outstanding objections are overruled and motions to strike are denied. After having considered the above evidence and the arguments of the parties, the Commission submits the following findings of fact, conclusions of law, and order.          FINDINGS OF FACT          1. Background. Claimant was born in 1954 and was raised in Emmett. She was 64 years old and resided in Boise at the time of the hearing. She is right-handed.          2. Claimant attended high school through the 10^th grade and left school in the 11^th grade. She obtained her GED at the age of 18. After leaving high school she worked in agricultural packing sheds, at Boise Cascade as a general laborer, and at Micron measuring circuit pathways. Thereafter she performed administrative office work and provided group CPR training for Idaho State employees. Claimant subsequently worked as a medical office administrator and processed medical records. She was later employed by the Meridian School District where she worked as a bus monitor and thereafter as a paraprofessional teacher’s aide assisting one on one with special needs children. Claimant enjoyed her work.          3. Medical history. In February and September 2000, Claimant underwent left and right shoulder arthroscopy and rotator cuff repair, respectively. In 2002 and 2003, she suffered a myocardial infarction, underwent balloon angioplasty, and placement of three stents. In approximately 2004, Claimant underwent gastric banding. In October and November 2006, she received medical treatment for depression. In June 2007, she lost her job and sought treatment for depression in October 2007. On November 3, 2008, she sought treatment for low back pain and headache. By November 6, 2008, her headache had resolved, and she returned to work. In 2012, Claimant underwent right knee total arthroplasty. In April 2014, she underwent L4-5 discectomy and fusion. She was released to return to work without restrictions in June 2014.          4. Industrial accident and treatment. On September 5, 2014, Claimant was working at Willow Creek Elementary School in her special needs classroom and climbed up on the counter to position some curtains. She lost her balance and fell, striking her head on the counter and falling to the floor. She did not believe she lost consciousness. She was examined by the school nurse who encouraged her to seek medical attention and was then transported by her husband to the hospital. Upon admission to the hospital on September 5, 2014, Claimant reported “a pretty severe headache. She does feel confused. She had some swelling in the occipital portion of her head. She has some soreness in her neck but no numbness or tingling.” Exhibit 10, p. 580. A head CT scan revealed left sided subdural hematoma measuring approximately 3 mm. Claimant’s headache persisted and was agitated. She remained hospitalized overnight. Neurosurgeon Kenneth Little, M.D., examined Claimant on September 6, 2014, and recommended follow-up with the traumatic brain injury clinic. Upon discharge from the hospital, Dr. Little indicated Claimant would most likely have post-concussive headaches and should not return to work until her symptoms had substantially improved. Exhibit 10, p. 583.          5. On September 8, 2014, Claimant was examined by neuropsychologist Jason Gage, Ph.D., and reported headaches aggravated by light and noise stimulation.          6. On September 9, 2014, Claimant was evaluated in the STARS program and diagnosed with post-concussive syndrome, cervicalgia, headaches and difficulty walking. She was treated through the STARS program and with physical therapy until October 28, 2014.          7. On September 19, 2014, Claimant began treating with physiatrist Michael McMartin, M.D. She reported dizziness with position changes, word finding difficulties, confusion, decreased concentration, and short-term memory difficulties. Dr. McMartin diagnosed posttraumatic headache syndrome.          8. Claimant returned to work four hours per day, two days per week with brain breaks; however, her symptoms persisted and included headaches, visual deficits, and noise sensitivity.          9. Claimant continued to report frequent headaches through early 2015 as she continued to treat with Dr. Gage. By February 2015, Dr. Gage opined Claimant had returned to her pre-accident cognitive functioning but noted she continued to experience residual pain and exacerbated anxiety.          10. On April 27, 2015, Dr. McMartin found Claimant had reached maximum medical...