RAFAEL TOVAR, Claimant,
v.
JALAPENOS, INC., Employer,
and
IDAHO STATE INSURANCE FUND, Surety, Defendants.
No. IC 2006-525923
Idaho Workers Compensation
Before The Industrial Commission Of The State Of Idaho
July 8, 2019
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
ORDER
Thomas
P. Baskin, 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 Coeur d’Alene on
April 20, 2018. Starr Kelso represented Claimant. H. James
Magnuson represented Defendants. The parties presented oral
and documentary evidence. Post-hearing depositions were
taken. The parties submitted briefs. The case came under
advisement on December 4, 2018 and is now ready for decision.
The undersigned Commissioners have chosen not to adopt the
Referee’s recommendation in order to give different
treatment to the issue of causation, and hereby issue their
own findings of fact, conclusions of law and order.
ISSUES
According
to the Notice of Hearing, the issues are as follows:
1.
Causation;
2.
Whether Claimant is medically stable, and, if so, on what
date;
3.
Whether and to what extent Claimant is entitled to benefits
for
a) Temporary disability;
b) Permanent partial impairment;
c) Disability in excess of PPI;
d) Medical care; and
e) Attorney fees;
4.
Whether apportionment of permanent disability for preexisting
conditions are appropriate under Idaho Code § 72-406.
Claimant
renewed his objection to the noticed issues at hearing and in
post-hearing briefing. Claimant’s objection is a
reiteration of arguments previously made to both the Referee
and the Commission. The Referee has twice considered and
overruled this objection. The Commission affirmed the
Referee’s ruling on Claimant’s request for
reconsideration. The Idaho Supreme Court denied
Claimant’s request for permissive appeal about the
matter. Claimant’s objection to the noticed issues at
hearing is overruled.
[1]
CONTENTIONS
OF THE PARTIES
Claimant
contends he noticed a gradual onset and progression of upper
extremity symptoms while working for Employer as a cook.
Eventually, it affected his work to the extent that Employer
sent him to a physician on October 31, 2006. A dispute arose
between the treating physician and Surety’s nurse case
manager which affected the nature and extent of treatment.
Over the ensuing years, multiple physicians have proposed
multiple diagnoses and multiple modes of treatment.
Claimant’s symptoms have remained and worsened.
Claimant is not medically stable and still needs appropriate
treatment for thoracic outlet syndrome. Claimant asserts that
Defendants should be required to authorize his referral to
the University of Washington to evaluate his conditions,
including, but not limited to, thoracic outlet syndrome, for
treatment. His condition constitutes an occupational disease
which was caused by repetitive motion at work. Despite
symptoms, Claimant has continued to work through the date of
hearing. This was a claim accepted by Surety. At present,
only causation and medical care are relevant issues; all
others are unripe. Bias and inappropriate methodology of a
physician have falsely colored physicians’ opinions.
Defendants
contend they have paid all appropriate TTD and PPI benefits
due Claimant. After right carpal tunnel surgery by John
Faggard, M.D., in 2007 and two right shoulder surgeries by
treating physician Roger Dunteman, M.D., Dr. Dunteman opined
Claimant to be medically stable on December 23, 2013. Surety
paid the 10% whole person PPI assigned by Dr. Dunteman.
Surety has allowed certain additional medical care since.
Over the years, Claimant’s symptomatic complaints have
varied. Claimant’s current condition is not
industrially related. He is entitled to no further medical
care. Claimant has continued to work and has suffered no
permanent disability in excess of impairment. Defendants have
acted reasonably throughout the course of this claim.
EVIDENCE
CONSIDERED
The
record in the instant case included the following:
1. Oral
testimony at hearing of Claimant and co-worker Chelsea Page
[2] ;
2.
Claimant’s exhibits A through Y admitted at hearing;
3.
Defendants’ exhibits 1 through 30 admitted at hearing;
4.
Depositions of physicians Spencer D. Greendyke, M.D.; Roger
Dunteman, M.D., and Eric Hofmeister, M.D., and vocational
expert Douglas Crum.
Objections
in Claimant’s Third Supplemental Rule 10 Disclosure to
certain Defendants’ exhibits are OVERRULED. Objections
in post-hearing depositions are OVERRULED.
FINDINGS
OF FACT
1.
Claimant worked for Employer as a cook beginning in 1993.
Claimant testified, “At the beginning … I used
to work up to 120 hours per week. … And then later
with time I was working 45 hours a week for my salary.”
HT, 37/15-18; 39/17-18. The record is vague about which weeks
he worked longer hours. Claimant’s contemporaneous
reporting to physicians shows he usually worked 40-45 hours.
2.
Claimant’s regular schedule was 7:00 a.m. to 4:00 p.m.,
six days per week. Tr., 47:16-22. The restaurant was open for
business 11:00 a.m. to 9:00 or 10:00 p.m. Tr., 48: 12-14.
3.
Claimant prepped food—which included a significant
amount of cutting meat and vegetables with a knife—and
cooked. Tr., 38:4-20. Claimant is right-handed and testified
that ordinarily, he cut rapidly with his right upper
extremity using his left upper extremity to hold the objects
he was cutting. Tr., 38: 23-39:4. As Employer hired
additional kitchen staff, Claimant’s title became
“chef.” Tr., 48: 1-2. He maintained that he still
did all of the prep work, and supervised the kitchen. Tr.,
39:22-25.
4.
Claimant testified he first noticed pain in 2001, but did not
need a doctor until October 31, 2006. Tr., 40:20-25. Since
2006, and despite carpal tunnel surgery and two shoulder
surgeries, he has had “more pain. It has never changed.
I have never gotten any better. … The pain still
continues and [is] getting worse.” Tr., 41:19-20. He
uses a TENS unit around four or five times a week, depending
on his pain. Tr., 43:24-44:5.
5.
Claimant has continued to work. Tr., 42:21-25. Except for
scheduled vacation, he missed work only for medical
appointments and a brief surgical recovery. Tr., 41:21-42:10.
He was terminated by Employer’s new owners, after about
two years working for them, on January 11, 2016, for reasons
unrelated to his workers’ compensation claim. Tr.,
49:18-50:23; Ex. 29. He now works for another restaurant.
Tr., 42:17-24.
Medical
Care
6. On
October 31, 2006, John Faggard, M.D., recorded
Claimant’s history as right shoulder pain present for
four or five years, but progressively worsening. Ex. 6:255.
Recent numbness and pain in the right hand into the index
finger, less so in the left hand generally; pain over the
dorsum and ulnar aspect of the right wrist; pain over the
“radial aspect of the [right] thumb and ulnar
aspect.” Ex. 6:255. Examination revealed swelling over
the first dorsal compartment of the right wrist with
tenderness and crepitus. Ex. 6:255. X-rays showed no
arthritis in wrist or shoulder. Ex. 6:256. Dr. Faggard
identified bilateral carpal tunnel syndrome, worse on right,
de Quervain’s tenosynovitis, possible tendinitis, and
right shoulder bursitis. Ex. 6:258.
7. On
January 6, 2007, Dr. Faggard noted that EMG and nerve
conduction velocity (NCV) studies were positive for right
carpal tunnel syndrome but not left. Ex. 6:256. Due to
symptoms, “it was felt that he possibly” does
have left carpal tunnel syndrome. Ex. 6:256. The absence of
first dorsal compartment symptoms at this examination caused
Dr. Faggard to delay performing a tendon release for de
Quervain tenosynovitis. Ex. 7: 257.
8. On
January 24, 2007, R. Clinton Horan, M.D., performed an EMG
and NCV study. Ex. 8:292. Dr. Horan opined that
Claimant’s results were abnormal, with right carpal
tunnel syndrome. There were normal results shown on left,
although Dr. Horan conceded that normal nerve conductions
results could not absolute rule out early, mild carpal tunnel
syndrome. Ex. 7:292.
9. On
February 20, 2007, Dr. Faggard submitted a report to Surety.
Ex. 7:265-266. Claimant reported that a two-week hiatus from
work did not relieve any symptoms...
