ROBIN STANGER, Claimant,
v.
IDAHO STATE UNIVERSITY, Employer,
and
STATE INSURANCE FUND, Surety,
and
STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendants.
NO. IC 2013-015556
Idaho Workers Compensation
Before The Industrial Commission of The State of Idaho
November 5, 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 Alan Taylor,
who conducted a hearing in Pocatello on October 17, 2017.
Claimant, Robin Stanger, was present in person and
represented by James C. Arnold, of Idaho Falls and Kent A.
Higgins, of Pocatello. Defendant Employer, Idaho State
University (ISU), and Defendant Surety, State Insurance Fund,
were represented by Steven R. Fuller, of Preston. Defendant,
State of Idaho, Industrial Special Indemnity Fund (ISIF), was
represented by Anthony M. Valdez, of Twin Falls. The parties
presented oral and documentary evidence. Post-hearing
depositions were taken and briefs were later submitted. The
matter came under advisement on August 28, 2018.
ISSUES
The
issues to be decided were narrowed in briefing and
are:
[1]
1. The extent of Claimant’s permanent impairment and
the portion thereof attributable to her industrial accident.
2. Whether Claimant is totally and permanently disabled
pursuant to the odd-lot doctrine or otherwise.
3. Whether the Industrial Special Indemnity Fund is liable
under Idaho Code § 72-332.
4. Apportionment under the Carey Formula.
Employer/Surety
have briefed the issue of whether Claimant’s claim for
permanent disability is precluded by Idaho Code § 72-435
because Claimant engaged in the allegedly unreasonable
practice of declining surgery, specifically, bilateral
reverse total shoulder arthroplasty. This issue was not
mentioned in Claimant’s Request for Calendaring filed
October 3, 2016 after joinder of ISIF, Claimant’s
Amended Request for Calendaring filed October 7, 2016, or her
Second Amended Request for Calendaring filed October 27,
2016. This issue was not listed in ISIF’s Response to
Claimant’s Request for Calendaring filed October 20,
2016. The document entitled “Response to Amended
Request for Calendaring,” dated October 21, 2016, and
attached to Employer/Surety’s Objection to
Claimant’s Reply Brief filed August 31, 2018, is not
contained in the Commission’s legal file and was
apparently not received by the Commission.
[2]Consequently, whether
Claimant is precluded from claiming permanent disability for
failure to follow prescribed medical treatment was not listed
as an issue in the Commission’s November 2, 2016 Notice
of Hearing, May 9, 2017 Order Vacating and Resetting Hearing,
June 15, 2017 Amended Order Vacating and Resetting Hearing,
or August 7, 2017 Second Amended Order Vacating and Resetting
Hearing. Pursuant to Idaho Code § 72-713, it cannot be
addressed herein.
[3]
CONTENTIONS
OF THE PARTIES
Claimant
asserts she is 100% totally and permanently disabled or is an
odd-lot worker. Employer/Surety assert that Claimant has
failed to prove she is totally and permanently disabled due
to her 2013 industrial injury and also assert that if
Claimant is found to be totally and permanently disabled, it
is due to the combined effects of her industrial accident and
pre-existing permanent impairment for which ISIF bears
responsibility. ISIF maintains that Claimant’s
preexisting condition was not a hindrance or obstacle to her
employment and that her 2013 accident does not combine with
her preexisting condition to render her totally and
permanently disabled asserting that prior to her accident
Claimant worked without restrictions and was fully able to
function.
EVIDENCE
CONSIDERED
The
record in this matter consists of the following:
1. The
Industrial Commission legal file;
2. The
parties’ joint exhibits A through R;
3. The
post-hearing deposition testimony of Richard Wathne, M.D.,
taken by Claimant on December 19, 2017;
4. The
post-hearing deposition testimony of Kathy Gammon, CRC, MSPT,
taken by Claimant on January 30, 2018; and
5. The
post-hearing deposition testimony of Sara Statz, CRC, taken
by Employer/Surety on March 2, 2018.
All
outstanding objections are overruled and motions to strike
are denied except as noted below. Employer/Surety’s
objection to Claimant’s Reply Brief is overruled
pursuant to Idaho Code § 72-713 for the reasons set
forth above. Employer/Surety’s Motion to Strike
Claimant’s Response to Objection to Claimant’s
Reply Brief, filed September 12, 2018, in which ISIF
subsequently joined on September 21, 2018, is hereby granted
only as to pages 3 through the paragraph entitled
“CONCLUSION” at page 17 of Claimant’s
response.
After
having considered the above evidence and the arguments of the
parties, the Referee submits the following findings of fact
and conclusions of law for review by the Commission.
FINDINGS
OF FACT
1.
Background. Claimant was born in 1952 in
Pocatello. She was 65 years old and resided in Pocatello at
the time of the hearing. She is right-handed.
2.
Claimant graduated from Pocatello High School in 1970. In
high school she participated in gymnastics and Taekwondo. She
eventually tested for and advanced to black belt proficiency.
She completed a year of college but obtained no college
degrees. Claimant has been actively involved in caring for,
training, and riding horses most of her life. Between
approximately 1970 and 2001, Claimant worked as a fast food
server, stable attendant, hotel housekeeper, cake decorator,
construction flagger, convenience store cashier, baker,
animal control officer, security guard, bartender, dry
cleaning attendant, and assisted living center administrator.
3. In
approximately 2001, Claimant commenced working for Idaho
State University as an office specialist and later as an
archives record manager. She inventoried archived records,
retrieved, organized, and re-shelved boxes of records and
made a computer data base of the materials. She re-boxed
materials into appropriate containers for long term storage.
Claimant regularly transported boxes in her own vehicle for
several miles and moved boxes alone and with assistance from
others. Boxes often weighed from 40 to 50 pounds or more. She
used ladders frequently to access higher shelves.
4.
Prior conditions. On June 22, 2011, Claimant
sought medical treatment for pain in her left shoulder, left
knee, and right hip. Michael Doyle, PA-C, recorded her left
shoulder symptoms included pain “which keeps her
awake” and limited range of motion with abduction to
“80-85 degrees, but she groans and moans while doing
so.” Exhibit C, p. 9. Left shoulder x-rays showed
significant calcification and she was diagnosed with likely
calcific left rotator cuff tendonitis and given prednisone
and Naprosyn. Thereafter she continued to seek medical
treatment periodically for shoulder, knee, and hip symptoms.
5. On
August 1, 2011, Claimant presented to Jami Price, PA-C,
reporting pain in her shoulders. Exhibit C, p. 4.
6. In
approximately October 2011, Claimant began treating with
Ananda Walaliyadda, M.D., who diagnosed Claimant with
rheumatoid arthritis, systemic lupus erythematosus, and
chronic pain.
7. On
October 3, 2011, David Brizee, D.O., recorded
Claimant’s complaints of bilateral knee pain, right hip
pain, and left shoulder pain. He noted calcification of her
left shoulder tendons and considered referring her to a pain
management specialist. Claimant was then taking a number of
medications, including: Buprenorphine patch for shoulder
pain; Ibuprofen 800 milligrams for knee, hip and shoulder
pain; Meloxicam for arthritis, pain, swelling, and stiffness
in her knee, hip, and shoulder; Baclofen for spasms and leg
cramps; Simvastatin; and Hydroxychloroquine for arthritis and
lupus. Exhibit A, p. 4. She was referred to Kevin Hill, M.D.,
for pain management.
8. On
October 20, 2011, Dr. Hill examined Claimant and recorded her
report of a six-month history of severe joint pain. He
further recorded: “Crepitus noted in the right
shoulder. Right shoulder shows forward flexion to
approximately 90 degrees, shoulder abduction to 85 degrees,
shoulder internal and external rotation decreased by 25%
bilaterally.” Exhibit B, p. 2. He prescribed methadone,
Celebrex, and Wellbutrin.
9. On
August 23, 2012, Dr...
