Wayment v. Evans Plumbing, Inc., 020119 IDWC, IC 2014-007090

Case DateFebruary 01, 2019
CourtIdaho
CALVIN MARK WAYMENT, Claimant,
v.
EVANS PLUMBING, INC., Employer,
and
LIBERTY NORTHWEST INSURANCE CORP., Surety, Defendants.
No. IC 2014-007090
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
February 1, 2019
          FINDINGS OF FACT, CONCLUSION OF LAW, AND RECOMMENDATION           Thomas P. Baskin, 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 June 5, 2018. Claimant was present along with his attorney, Keith Hutchinson of Twin Falls. David Farney represented Employer/Surety (Defendants) up to and through the hearing and Judith Atkinson of Boise prepared and submitted Defendants’ post-hearing brief. Oral and documentary evidence was presented, post-hearing briefs were submitted, and this matter is now ready for decision.          ISSUE          The sole issue to be decided is the extent of Claimant’s permanent partial disability (PPD) including whether Claimant is an odd-lot worker.          CONTENTIONS OF THE PARTIES          Claimant contends that he is totally and permanently disabled pursuant to the odd-lot doctrine. Up until and including the time of the hearing, both Claimant’s and Defendants’ vocational experts agreed that Claimant was an odd-lot worker. However, Defendants’ expert changed her mind when presented with Claimant’s hearing testimony detailing his duties on a job given Claimant out of sympathy and that fact has not changed as a result of Claimant’s hearing testimony.          Defendants assert that Claimant is learning new office skills while employed by Mitch’s Repair that could make him employable in the sedentary labor market to which he has been relegated due to his restrictions. While Claimant may have originally been offered his present employment out of friendship, Claimant has, and is, providing a valuable service to Mitch’s and there are sedentary jobs in Claimant’s labor market that he could secure and perform.          EVIDENCE CONSIDERED          The record in this matter consists of the following:
1. The testimony of Claimant and Claimant’s current employer, Mitch McDowell, presented at the hearing.
2. Joint Exhibits (JE) A-T, admitted at the hearing.
         After having considered all the above evidence and briefs of the parties, the Referee submits the following findings of fact and conclusion of law for review by the Commission.          FINDINGS OF FACT          Hearing Testimony:          Claimant          1. Claimant was 54 years of age and residing in Jerome at the time of the hearing. He graduated from Twin Falls High School in 1983.          2. Prior to Claimant’s January 15, 2014 industrial injury, he was a journey level HVAC technician with an EPA refrigeration license, a journey level specialty electrician, and was a four-year apprentice plumber. Claimant has been involved in the HVAC-related industry since 1985.          3. At the time of his injury, Claimant was earning $32.00 an hour with double time for anything over 40 hours (a slow week). He had a benefit package that included medical, vacation, sick leave and retirement.          4. Claimant worked primarily in the Wood River Valley for Employer. He serviced accounts, installed hydronic heating, performed plumbing maintenance, and all things related to HVAC, plumbing, and electrical. About 75% of his work was spent on his knees in crawl spaces. As many HVAC units were in the ceiling, Claimant also used ladders extensively.          Pre-existing injuries          5. Claimant had a partial right knee replacement in 2004 with a full recovery and a return to work with restrictions. His right knee was asymptomatic prior to his last industrial accident. Claimant experienced bursitis in his left knee in 2006 that was also asymptomatic at the time of his 2014 accident. He also had some minor injuries to his left shoulder and knee resulting from a motor vehicle accident in 2007 that resolved. None of these conditions prevented Claimant from performing heavy level work pre-accident and no physician has apportioned Claimant’s current condition to any pre-existing conditions. The accident          6. Claimant described his January 15, 2014 accident at Si Ann Dairy this way:
Q. (By Mr. Hutchinson): This is all on January 15th?
A. Uh-huh.
Q. Cold?
A. Yeah.
Q. Cold day?
A. Yeah. And, then, as I stepped over the peak of the roof I - -my footing was gone and I slid about 25 feet, got my left foot caught in a rain gutter, snapped the tib and fib. Started to go over head first. I grabbed the rain gutter with my right hand, did a quick spin, landed flat footed, stiff legged, and shoved the femur throught [sic] the plateau of my knee, compounded everything on the right - - left leg and, then. Laid there for about 40 minutes.
Q. Okay. About how far was the fall?
A. It was a 20 foot - - about a 25 foot slide and, then, a 16 to 18 foot drop.
HT., p. 49.          Injuries          7. Claimant underwent several surgeries on his left ankle; he also developed Complex Regional Pain Syndrome (CRPS) in his left lower extremity that feels like, “[w]alking across a hot pavement without shoes on.” HT., p. 50. Claimant cannot wear a sock, tight shoe, or work boot on his left foot as, “[i]t will put me to tears.” Id. The CRPS also affects Claimant’s ability to sleep and is sensitive to the cold and changes in the weather. Claimant has had two spinal cord stimulators implanted with limited success.          8. Claimant also injured his right knee resulting in a right TKA that “… doesn’t hurt too much for the most part. It gives out a little here and there.” Id., p. 52. Claimant’s right knee also prevents him from exercising as much as he would like.          9. Claimant testified, and the Referee finds, that Claimant cannot return to any of his pre-injury work as the result of his industrial accident. He attempted to return to work with Employer post-accident training others and doing some field work, but his need to use narcotic pain medication resulted in his dismissal.          Current employment Mitch McDowell          10. Claimant is currently employed by Mitchell (Mitch) McDowell at Mitch’s Repair, Inc., in Jerome. Mitch has owned this agriculture feed and truck repair business for 37 years. Mitch has known Claimant socially for about 12 years, both before and after Claimant’s 2014 industrial accident. Mitch “[k]ind of made him a job” running short errands in November of 2017 (“we weren’t going to leave him homeless”). HT., p. 14. Subsequently, Mitch’s office manager retired, so Claimant became an office manager “helper.” Mitch’s “. . . accountant girlfriend is providing some training to Claimant with data entry, answering phones, taking messages and making bank deposits.” HT., p. 15. Mitch testified that Claimant’s most important role currently is that of receptionist.[1]          11. Mitch is aware that Claimant has difficulty wearing socks and shoes, so Mitch keeps him out of areas where welding is taking place, other than to sweep. Mitch is also aware that Claimant takes opiate prescription medication and has had to leave work early due to pain issues but Mitch allows Claimant to take whatever time off he needs. Mitch would not be so accommodating to his other employees as equipment repair requires scheduling. Mitch hopes to keep Claimant as an employee “[i]f he can get more out of him and pay him more.” HT., p. 17.          12. Claimant generally works from 7:30 am until 2:30 or 3:00 pm with an hour break for lunch. He earns $15.00 an hour without benefits.          13. Mitch described Claimant as a good employee who brings value to his business. However, Mitch would like to see Claimant do more in the parts department rather than train to be a full-time office worker.          14. Claimant has used the shop’s lathe and drill press on occasion and has done some welding. ...

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