Willford v. Cooperative Supply, Inc., 011719 IDWC, IC 2014-026918

• Case Date: January 17, 2019
• Court: Idaho

ALAN C. WILLFORD, Claimant, v. COOPERATIVE SUPPLY, INC., Employer, and STATE INSURANCE FUND, Surety, and STATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendants. No. IC 2014-026918 Idaho Workers Compensation Before The Industrial Commission of The State of Idaho January 17, 2019           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           THOMAS P. BASKIN, 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 Coeur d’Alene on May 17, 2018. Claimant, Alan Willford, was present in person and represented by Starr Kelso, of Coeur d’Alene. Defendant Employer, Cooperative Supply, Inc. (Cooperative Supply), and Defendant Surety, State Insurance Fund, were represented by H. James Magnuson, of Coeur d’Alene. Defendant, State of Idaho, Industrial Special Indemnity Fund (ISIF) was represented by Thomas W. Callery, of Lewiston. The parties presented oral and documentary evidence. Post-hearing depositions were taken and briefs were later submitted. The matter came under advisement on September 18, 2018. The undersigned Commissioners have chosen not to adopt the Referee’s recommendation and hereby issue their own findings of fact, conclusions of law and order.          ISSUES          The issues to be decided are:

1. The extent of Claimant’s permanent impairment including the portion thereof attributable to his industrial accident.

2. The extent of Claimant’s permanent disability, including whether he is totally and permanently disabled pursuant to the odd-lot doctrine or otherwise.

3. Whether apportionment for a pre-existing or subsequent condition pursuant to Idaho Code § 72-406 is appropriate.

4. Whether the Industrial Special Indemnity Fund is liable under Idaho Code § 72-332.

5. Apportionment under the Carey formula.

6. Whether Claimant is entitled to attorney fees.

         CONTENTIONS OF THE PARTIES          Claimant asserts he is 100% totally and permanently disabled or is an odd-lot worker due to his industrial injury. Claimant also asserts he is entitled to attorney fees against Employer/Surety for unreasonably denying and delaying payment of total permanent disability benefits. Employer/Surety assert that Claimant has failed to prove he is totally and permanently disabled and maintain he has sustained permanent disability of approximately 25% due to his industrial accident. They also assert that if Claimant is found to be totally and permanently disabled, it is due to the combined effects of the industrial accident and pre-existing conditions for which ISIF bears responsibility. ISIF asserts Claimant has not shown he is totally and permanently disabled. ISIF also maintains that Claimant’s pre-existing conditions were not a hindrance or obstacle to employment and do not combine with his industrial accident to render him totally and permanently disabled.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The Industrial Commission legal file;

2. Claimant’s Exhibits A through Z and AA, Employer/Surety’s Exhibits 1 though 25, and ISIF’s Exhibits 3 and 4, admitted at the hearing;

3. Claimant’s testimony taken at hearing;

4. The post-hearing deposition testimony of Douglas N. Crum, C.D.M.S., taken by Employer/Surety on June 25, 2018; and

5. The post-hearing deposition testimony of Eric Hofmeister, M.D., taken by Employer/Surety on June 26, 2018.

         All outstanding objections are overruled and motions to strike are denied.          FINDINGS OF FACT          1. Claimant was born in 1960. He was 57 years old and resided in the Coeur d’Alene area at the time of the hearing. He is right-handed.          2. Cooperative Supply (also known as Cenex) is a retail farm and ranch supplier offering gas, hay, livestock feed, fencing materials, propane, and various other commodities.          3. Background. In 1978, Claimant graduated from Coeur d’Alene High School. He entered the U.S. Army in 1980 and rose to the rank of Sergeant E-5. He was honorably discharged in 1986.          4. Between 1987 and 1991, Claimant worked for various entities as a construction laborer, tree faller, machinist, and sales manager at a metal anodizing company.          5. In approximately 1992, Claimant fell from a ladder and injured his dominant right hand. He underwent six hand surgeries by Peter Jones, M.D., and fully recovered his right hand function. Also in 1992, he obtained a paralegal certificate, although he never utilized this training to obtain employment.          6. In 1996, Claimant began working for Kootenai County Solid Waste where he operated garbage trucks and loaders.          7. In October 1999, Claimant underwent C4-C7 cervical fusion after a fall at home. He recovered and later returned to his usual work.          8. In 2000, Claimant worked for the Idaho Department of Transportation as a seasonal sign and cross-walk painter.          9. From 2000 to 2001, Claimant worked as a laborer and backhoe operator for the City of Coeur d’Alene Department of Parks and Recreation and the Cemetery Department. He maintained grounds and dug graves.          10. Between approximately 1990 and 2002, Claimant was convicted on multiple occasions of driving while under the influence, disturbing the peace, and domestic violence. From approximately 2002 until 2004, he was incarcerated.          11. In approximately 2004, Claimant obtained a private investigation certificate through a correspondence course, but never utilized this training to obtain employment.          12. From 2005 until 2007, Claimant worked for The Rooter Guys installing, cleaning, and maintaining drain fields and septic tanks. He operated a backhoe and a pump truck.          13. In the fall of 2007, Claimant began working for Cooperative Supply as a stock clerk and warehouse worker. His duties included loading, unloading, and stocking animal feed, fencing materials, box merchandise, hay and straw bales, propane tanks, and other products. He also performed cleaning duties. He operated fork lifts and pallet jacks. He spent 10% or less of his time cashiering.          14. In 2009, Claimant underwent L5-S1 fusion for a pre-existing back condition. He returned to work for Cooperative Supply approximately six months later and thereafter resumed his usual work duties.          15. On July 26, 2010, Claimant injured his right shoulder while working for Cooperative Supply. On September 27, 2010, Adam Olscamp, M.D., performed arthroscopic right rotator cuff repair. Dr. Olscamp restricted Claimant to lifting 50-75 pounds over shoulder height. Claimant returned to work but noted difficulty with right shoulder range of motion and experienced right shoulder discomfort lifting 40 to 80-pound feed bags, 70-pound hay bales, and 100-pound rolls of baling wire. Consequently, he performed more work with his left shoulder. On May 3, 2011, Dr. Olscamp rated the permanent impairment of Claimant’s dominant right shoulder at 9% of the right upper extremity, equating to 5% of the whole person.          16. Industrial accident and treatment. On September 19, 2014, Claimant was at work lifting a 100-pound propane tank into a customer’s truck when he noted immediate left shoulder pain. At the time of the accident Claimant was working full-time and earning approximately $10.80 per hour. A left shoulder MRI revealed full-thickness rotator cuff tear and partial biceps tendon tear. On November 5, 2014, orthopedic surgeon Jonathan King, M.D., performed left shoulder arthroscopy, rotator cuff repair, and biceps tenodesis.          17. In approximately February 2015, Claimant began working with Industrial Commission rehabilitation consultant Maria Goodwin in an effort to return to work.          18. Claimant attended physical therapy until May 2015.          19. On May 12, 2015, Dr. King released Claimant to work with a 20-pound left arm lifting restriction and only occasional overhead reaching.          20. On June 30, 2015, Dr. King assigned Claimant permanent left shoulder restrictions of occasionally lifting up to 20 pounds, pushing or pulling up to 30 pounds, and rarely reaching above his left shoulder. Claimant’s Exhibit H, p. 204.          21. On August 2, 2015, Claimant’s application for Social Security Disability benefits was approved. Michael O’Brien, M.D., who reviewed...