Tuma v. State, Industrial Special Indemnity Fund, 032316 IDWC, IC 2011-022494

• Case Date: March 23, 2016
• Court: Idaho

LINDA J. TUMA, Claimant, v. STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant. No. IC 2011-022494 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho March 23, 2016           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           R.D. Maynard, 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 August 4, 2015. Claimant, Linda Tuma, was present in person and represented by Matthew C. Andrew, of Nampa. Employer, AA Market (AA), and Surety, Employer's Compensation Insurance Company, were represented by Nathan Gamel of Boise. Defendant, State of Idaho, Industrial Special Indemnity Fund (ISIF), was represented by Paul J. Augustine, of Boise. The parties presented oral and documentary evidence. The parties later took post-hearing depositions after which Claimant settled her claim against Employer/Surety. Claimant and ISIF then submitted briefs and the matter came under advisement on December 3, 2015. Referee Taylor submitted his recommendation on March 7, 2016. The Commission disagrees with Referee Taylor's application of the rule of Carey v. Clearwater County Road Department, 107 Idaho 109, 686 P.2d 54 (1984) to these facts and hereby issue their own findings of fact, conclusions of law and order.          ISSUES          The issues to be decided by the Commission were narrowed by Claimant's post-hearing settlement with Employer/Surety and by briefing^[1] and are:

1. Whether ISIF is liable under Idaho Code § 72-332.

2. Apportionment under the Carey formula.

         CONTENTIONS OF THE PARTIES          Claimant asserts she is totally and permanently disabled pursuant to the odd-lot doctrine due to the combined effects of her pre-existing L4-5 diskectomies, pre-existing rheumatoid arthritis, and her industrial injury. She requests apportionment of liability to ISIF under the Carey formula of 49.84%. ISIF acknowledges that Claimant is totally and permanently disabled but asserts that her two pre-existing L4-5 diskectomies did not constitute a pre-existing hindrance or obstacle to her employability and that none of her pre-existing conditions combined with her industrial accident to render her totally and permanently disabled. In the alternative, ISIF argues that at most liability should be apportioned 75% to her industrial accident and no more than 25% to her pre-existing conditions under the Carey formula.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The Industrial Commission legal file;

2. The testimony of Claimant, Terry Montague, and John Paustian taken at hearing;

3. Claimant's Exhibits 1-15 admitted at hearing;

4. Defendants' (Employer/Surety) Exhibits 1-38 admitted at hearing, excepting the final page of Defendants' (Employer/Surety) Exhibit 9, containing the single page July 24, 2015 report of Dr. Frizzell, which is denied admission as untimely pursuant to JRP 10;2

5. The post-hearing deposition testimony Mark Williams, D.O., taken by Claimant on August 13, 2015; and

6. The post-hearing deposition testimony of Kevin R. Krafft, M.D., taken by Employer/Surety on September 23, 2015.

         All objections posed during the post-hearing depositions are overruled.          FINDINGS OF FACT          1. Claimant was 65 years old and resided in Caldwell at the time of the hearing. She was born in Missouri and raised in Idaho. She attended high school through the 10^th grade and later received her GED. After high school she worked in various clerical, warehouse, retail, and seasonal positions in Idaho and Oregon.          2. Claimant has suffered from bilateral rheumatoid arthritis in her hands and wrists since at least 1994 and for which she has been treated regularly with Prednisone for many years.          3. In November 2000, Claimant began working at Bi-Mart as Christmas help stocking housewares. She later transitioned to hardware clerk and ultimately was promoted to the position of hardware manager where she worked for five years.          4. Claimant's low back gradually became symptomatic over time and in June 2003, she underwent L4-5 microdiskectomy by Michael Malos, M.D. She recovered and returned to work at Bi-Mart as the hardware manager. Her low back bothered her from time to time and gradually became symptomatic again. On April 25, 2007, Claimant underwent right L4 laminectomy and redo L4-5 diskectomy by Michael Sandquist, M.D.          5. After recovering from her 2007 lumbar surgery, Claimant returned to work at Bi-Mart. However, she left her position as the hardware department manager due to difficulty with the lifting requirements. Claimant became a point of sale clerk for Bi-Mart, checking prices with a scan gun, which was less physically demanding. While working Claimant wore hand/wrist braces due to bilateral hand pain from her rheumatoid arthritis.          6. In November 2008, Claimant commenced working at AA Market in Arco as a store clerk.          7. On September 9, 2011, Claimant suffered an industrial accident while working for AA when she was moving a coffee display and twisted her back while steadying the display to keep it from falling. She noted discomfort in her back which progressed into pain radiating to her left lower extremity. She reported the incident to her supervisor and subsequently sought medical...