Soltero v. Conagra Foods, 071615 IDWC, IC 2011-028027

• Case Date: July 16, 2015
• Court: Idaho

PENME SOLTERO, Claimant, v. CONAGRA FOODS, Employer, and OLD REPUBLIC INSURANCE COMPANY, Surety, Defendants. No. IC 2011-028027 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho July 16, 2015           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           R.D. Maynard, Chairman          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Industrial Commission assigned this matter to Referee Douglas A. Donohue, who conducted a hearing in Pocatello on July 18, 2014. Claimant was represented by Albert Matsuura, Esq. Defendants were represented by Nathan Gamel, Esq. The case came under advisement on March 9, 2015. On or about June 15, 2015, Referee Donohue submitted his Findings of Fact, Conclusions of Law and Recommendation to the Industrial Commission. The Commissioners have reviewed the proposed Decision, along with the evidence adduced at hearing, and by way of post hearing depositions. For reasons that will be evident to anyone who compares the recommendation to this decision, the Commission has chosen not to adopt the recommendations of the Referee, and in lieu thereof, makes its own Findings of Fact and Conclusions of Law.          ISSUES          The issues to be decided according to the Notice of Hearing are:

1. Whether and to what extent Claimant is entitled to permanent disability in excess of impairment, including 100% total permanent disability;

2. Whether Claimant is permanently and totally disabled under the odd-lot doctrine;

3. Whether apportionment of permanent disability for a pre-existing condition pursuant to Idaho Code § 72-406 is appropriate.

         In her request for calendaring, the single issue raised by Claimant was the extent and degree of her disability in excess of impairment, including whether she is permanently and totally disabled under the odd lot doctrine. In their response Defendants raised the additional issues of whether Claimant's disability, if less that total, should be apportioned under Idaho Code § 72-406, and if total, should be apportioned between Employer and ISIF under Idaho Code § 72-432. However, the ISIF is not a party to these proceedings, and therefore no finding by the Commission treating the issue of ISIF liability could bind the ISIF. Although the notice of hearing reflects that the issue of ISIF apportionment is reserved, it is not reserved for this case. Rather, it may be raised, if at all, in connection with a complaint filed against the ISIF.          CONTENTIONS OF THE PARTIES          Claimant contends she is totally and permanently disabled, 100%, alternately, as an odd-lot worker. Her 20-pound lifting restriction and non-medical factors, particularly her learning disabilities, leave her unable to compete in the labor market.          Employer and Surety acknowledge Claimant may have some disability in excess of PPI. She failed to prove total permanent disability under either theory. She had a 25-pound lifting restriction imposed in 1992 and worked continuously thereafter. With a recent 20-pound lifting restriction, five fewer pounds does not render her totally and permanently disabled. Claimant was motivated to seek work for a while, but after Social Security Disability benefits kicked in, she has stopped looking for work. Moreover, whatever partial disability she now has is largely apportionable to her preexisting conditions.          EVIDENCE CONSIDERED          The record in the instant case included the following:

1. Oral testimony at hearing of Claimant;

2. Claimant's exhibits A through L;

3. Defendants' exhibits 1 through 20; and

4. Depositions of vocational rehabilitation specialist Terry Montague and ICRD consultant Chris Horton.

All objections made in post-hearing depositions are overruled.          FINDINGS OF FACT          1. Claimant was born August 22, 1961 and was 52 years old as of the date of hearing.          2. Claimant dropped out of high school after completing the 10^th grade. She explained that she dropped out because she could not learn how to read. Although she testified that she is pursuing her GED, testing undertaken prepatory to pursuing a GED program demonstrated that she must improve her reading proficiency before she can participate in a structured GED program. (Hearing Transcript, 44/11-45/9.) Claimant believes that she currently reads at about a third grade level, while she self-rates her math skills at about the fourth grade level. She testified that she can read a child's "ABC" book and that she cannot handle math problems more sophisticated than dividing by a one digit number. (Hearing Transcript, 49/23-50/20.) Claimant intends to pursue reading and math studies on her own until she is proficient enough to enroll in a GED program.          3. Since leaving high school Claimant has performed unskilled work. She initially worked at area cafes washing dishes. She then briefly worked as a general laborer at the Simplot facility in Aberdeen. In approximately 1983, she began work at Lamb Weston, ConAgra's predecessor-in-interest. At Lamb Weston, Claimant was initially employed on the trim line, and then in sanitation. In the sanitation department she used high pressure hoses to clean manufacturing equipment. She performed this work for approximately 11 years. Then, in approximately 1993, Claimant took a position as a chemical room attendant. She worked there until the subject accident.          4. Claimant has suffered a number of work-related injuries over the years for which claims were made. Only one of these, a claim filed in 1992, is relevant to the instant proceeding.          5. In March of 1988, Claimant presented to Stephen Maloff, M.D., with complaints of right hand pain which extended up her proximal arm and into her shoulder. Claimant was placed on light duty work and given a wrist immobilizer. By May of 1988 she was doing somewhat better, and allowed to return to her job in sanitation. Dr. Maloff's records from March through May of 1988 do not suggest that he ever came to a definitive diagnosis for Claimant's right upper extremity problems.          6. Claimant was not seen again by Dr. Maloff until January 27, 1992. At that time, Dr. Maloff took a history from Claimant that she was suffering from long-standing and accelerating discomfort in regards to her right upper extremity. (See Defendants' Exhibits at 288.) Electrodiagnostic testing was normal. However, Claimant did exhibit a positive Tinel sign. On or about January 27, 1992, Claimant also caused an Employer's First Report to be filed with her employer, which identifies a date of initial diagnosis of March 12, 1987 and references an injury to her right upper extremity which she related to the use of a high pressure hose and banding. (See Defendants' Exhibits at 406.) An amended Form 1 dated January 30, 1992, and filed with the Industrial Commission on January 31, 1992, references the same right upper extremity condition, but relates it to the use of a banding hammer and the act of banding.           Finally, the amended Form 1 references a date of exposure or initial diagnosis of January 20, 1992. At any rate, it seems clear that the employer's first reports referenced above identify the same injury. Dr. Maloff's notes do not reflect that he was ever able to come up with a definitive diagnosis for Claimant's intractable hand, arm and shoulder pain. He expressed his skepticism that Claimant would ever be able to return to her time-of-injury job with Lamb Weston.          7. In June of 1992, Claimant was seen by Ercil Bowman, M.D., at the instance of Employer. Dr. Bowman noted that Claimant gave a history of persistent pain/discomfort in her right upper extremity between 1987 and 1992. She told Dr. Bowman that in 1991 she left her job in sanitation to change to a utility laborer position in the packaging department. This job evidently required her to use a banding machine which significantly increased her discomfort. At the time of his evaluation of Claimant, Dr. Bowman noted that Claimant presented with complaints of pain in the volar wrist that went up to the mid-forearm, and then up the medial border of the arm to the shoulder. No abnormalities were noted on clinical exam, however, and Dr. Bowman ultimately concluded that Claimant had a "possible over use syndrome" up the right upper extremity. He was, however, unable to find evidence of a physical impairment. (See Defendants' Exhibits at 297-303). Dr. Bowman did not give Claimant any specific limitations/restrictions.          8. On September 25, 1992, Claimant was seen at Employer's instance by Michael...