Walker v. Clear Springs Food Co., 120916 IDWC, IC 2004-515150

• Case Date: December 09, 2016
• Court: Idaho

DIANA K. WALKER, Claimant, v. CLEAR SPRINGS FOOD COMPANY, Employer, and LIBERTY NORTHWEST INSURANCE CORPORATION, Surety, Defendants. No. IC 2004-515150 Idaho Workers Compensation Before the Industrial Commission of the state of Idaho December 9, 2016           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION           R. D. Maynard, Chairman          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Michael E. Powers, who conducted a hearing in Twin Falls on September 11, 2015. Claimant was present and represented by L. Clyel Berry of Twin Falls. Kent W. Day of Meridian represented Employer, Clear Springs Food Company, and its Surety, Liberty Northwest Insurance Corporation (Defendants). Oral and documentary evidence was presented and the record remained open for the taking of four post-hearing depositions. The parties then submitted post-hearing briefs and this matter came under advisement on July 22, 2016.          ISSUES          The issues to be decided as a result of the hearing are:

1. Whether Richard Hammond, M.D., should be designated as Claimant's treating physician;

2. Whether Claimant is entitled to additional permanent partial impairment (PPI);

3. Whether Claimant has experienced a change in her condition since the Commission's October 25, 2007 decision such that a manifest injustice will result without further deliberation;^[1] and

4. Whether Claimant is entitled to further permanent partial disability (PPD) including whether she is now an odd-lot worker.

         CONTENTIONS OF THE PARTIES          Claimant contends that since the 2007 hearing, she has been abandoned by her Surety-approved orthopedic surgeon and would like her care transferred to neurologist Richard Hammond, M.D., who has seen her twice for IMEs.          Claimant further contends that her previously awarded 13% whole person PPI should be increased to 33% to account for two surgical procedures performed after the 2007 decision.          Finally, Claimant argues that she is an odd-lot worker based on conditions and events that occurred post-2007.          Defendants agree that Claimant's circumstances have changed since the 2007 decision; the real question is the extent of those changes.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The testimony of Claimant presented at the January 25, 2007 (TR-1) and the September 11, 2015 hearing (TR-2) and, where relevant, Claimant's pre-hearing deposition testimony.

2. The Industrial Commission legal file generated as a result of the 2007 hearing.

3. Claimant's Exhibits (CE) 5-31 admitted at the hearing.

4. Defendants' Exhibits (DE) S and T admitted at the hearing.

5. The post-hearing deposition transcripts of: Richard J. Hammond, M.D., taken by Claimant on February 12, 2016; R. Tyler Frizzell, M.D., Ph.D., taken by Defendants on April 4, 2016; Douglas Crum, CDMS, taken by Claimant on April 28, 2016; and Mary Barros-Bailey, Ph.D., taken by Defendants also on April 28, 2016.

         All objections made during the course of taking the above-referenced depositions are overruled with the exception of Defendants' objection at pages 33 and 34 of Dr. Hammond's deposition, which is sustained.          After having considered all the above evidence and briefs of the parties, the Referee submits the following findings of fact and conclusions of law for review by the Commission.          BACKGROUND          Claimant suffered an accident on May 25, 2004, which resulted in a hearing held on January 25, 2007, and a decision filed on October 25, 2007. That decision found that Claimant had proven causation and awarded her certain TTD/TPD benefits, a 13% whole person PPI rating, and a PPD rating of 50% inclusive of her 13% PPI rating.          FINDINGS OF FACT          Claimant's 2015 hearing testimony:          1. Claimant was 50 years of age, resided in Gooding, and was unemployed at the time of the hearing. While married at the time of the 2007 hearing, she has since divorced due to "Financial issues. Depression on my part. More fighting." TR-2, p. 30. Claimant is currently in a relationship that has lasted for five years; however, there is tension because Claimant's chronic pain limits her ability to perform housework and other activities.          2. On the date of the 2007 hearing, Claimant was still employed at Clear Springs, her time-of-injury employer, in a modified capacity; however, she quit on the 17^th anniversary of her employment (April 17, 2007) because she was no longer physically capable of performing even modified duties.          3. Claimant then obtained employment in the fall of 2007 with Christopher and Banks (C and B), a women's clothing store located in the Magic Valley Mall in Twin Falls. She hung up clothes, folded clothes on tables, rang up purchases, and generally helped customers. Claimant informed C and B of her physical restrictions and the need to take medications, including Oxycodone, which affected her concentration and made her tired. C and B agreed to accommodate Claimant's restrictions. Claimant last worked for C and B in March 20122 and has not worked since.          4. By the time of the January 25, 2007 hearing, Claimant had undergone a micro diskectomy at L4-5 in July of 2004, a "re-do" in December 2004, and a fusion at L4-L5 in August of 2005 - - all performed by David Verst, M.D. After each procedure, Dr. Verst referred Claimant to Dr. Dille, a physiatrist, for follow-up care including pain and medication management.          5. Claimant testified that her pain is getting progressively worse since the 2007 hearing. She has trouble sitting/standing/walking for prolonged periods of time. She is unable to stoop, crawl, or kneel. Claimant is also unable to climb ladders and is restricted in climbing and descending stairs, as well as lifting. Her main limiting pain is in her left lower extremity.          6. Claimant believes her depression is getting worse:

I'm not the same person. I'm not the same person. I am not as outgoing as I used to be. I keep to myself more. I cancel, you know, friend appointments and stuff when I don't feel good. Shane and I can't do the same activities like we used to. Relations [intimate] with us are not the same.

TR-2, p. 78.          7. Claimant was not looking for work at the time of the hearing, as she did not believe there were any jobs she could do for which she was qualified. She testified that no one from ICRD found a job for her or told her to apply for any.          8. Claimant summed up how her condition has changed since the 2007 hearing and decision:

The lower - - the lower back and the left leg has gotten progressively worse. I'm not able to do a lot of activities with family members. Even doing simple things around the house is more difficult or I can't do them at all. Like laundry and the whole thing. I don't vacuum. It's changed my life in lots of ways. The pain has. And it's hard to describe that with Shane or other family members or friends.

Id., p. 79.          9. Claimant described her left-sided foot drop, which is constant and interferes with her walking, this way:

It's hard to describe it. I don't much - - my toes in my left side are very weak, so I can't grab like a shoe - - you know, when you're in your shoes, like sandals, and my foot will just - - it's weak. I can't keep it up like I would the right. You try to keep your right toes up and my left toes, just - - I can't get them to go up hardly.

Id., p. 95.          Change of physician          10. Defendants have satisfied their duty under Idaho Code § 72-432(1) to provide appropriate medical care following Claimant's accident. However, Claimant's original treating physician, Dr. Verst, has, in every sense, abandoned Claimant by failing to respond to either her, her attorney, or Defendant Surety regarding continued care and treatment.          11. Idaho Code § 72-432(4)(a) provides that a claimant may petition the Commission for an order allowing for a change of physician under certain circumstances.          12. Claimant requests that the Commission allow her to change physicians from Dr. Verst, an orthopedic surgeon, to Dr. Hammond, a neurologist who is known to Claimant for having performed two IMEs at her attorney's request. Dr. Hammond...