Wilson v. Conagra Foods Lamb Weston, 022015 IDWC, IC 2011-009875

• Case Date: February 20, 2015
• Court: Idaho

AMANDA WILSON, Claimant, v. CONAGRA FOODS LAMB WESTON, Employer, and OLD REPUBLIC INSURANCE COMPANY, Surety, Defendants. No. IC 2011-009875 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho February 20, 2015           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           R.D. Maynard, 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 Boise on February 22, 2013. Justin Aylsworth represented Claimant. Nathan Gamel represented Defendants. The parties presented oral and documentary evidence. Post-hearing depositions were taken. A briefing schedule was stayed to allow the taking of a physician's deposition which, ultimately, was never taken. The parties submitted briefs. The case came under advisement on November 3, 2014 and is now ready for decision. 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          According to the Notice of Hearing, the issues are as follows:

1. Whether Claimant suffered an injury caused by an accident arising out of and in the course of employment;

2. Whether the condition for which Claimant seeks benefits was caused by the alleged industrial accident;

3. Whether and to what extent Claimant is entitled to benefits for

a) Temporary disability;

b) Permanent partial impairment (PPI);

c) Permanent disability in excess of impairment;

d) Retraining;

e) Medical care; and

f) Attorney fees.

         At hearing the parties stipulated that the permanent disability issue includes consideration of total and permanent disability, including 100%, odd lot, or both.          Further, at hearing, Claimant raised issues of estoppel and quasi-estoppel. Defendants objected to the inclusion of these issues as being untimely raised. As set forth below, it is Claimant, not Defendants, who has alleged an inconsistent position.          CONTENTIONS OF THE PARTIES          Claimant contends Defendants admitted Claimant suffered an accident and injury when they denied a claim for unemployment insurance benefits made by Claimant. They should not be heard to allege she did not so suffer now. Claimant suffered an injury or aggravation to a preexisting condition while shoveling potatoes on or about March 16, 2011. She is entitled to all benefits available. She has been unable to obtain suitable work and meets the qualifications as an odd-lot worker. She is entitled to an award of attorney fees as a result of Defendants' unreasonable denial of benefits; Defendants' investigation of Claimant's claim was insufficient when made; subsequent attempts to manufacture a proper basis for denial do not cure the original unreasonableness.          Defendants contend Claimant raised the issues of estoppel and quasi-estoppel untimely; Claimant's first such mention of these arose at hearing and should not be considered. Moreover, Defendants have not alleged inconsistently; Claimant was fired for violating company policy by failing to report timely that she alleged a work accident and injury; they did not take a position before the Department of Labor about whether Claimant actually suffered a work accident and injury. Claimant has alleged several exclusive dates of accident relating to her claim for benefits. She is not credible in her story of onset of pain. She did not suffer an "accident" as defined by statute. Claimant failed to give notice as required by statute. Her condition was not caused or exacerbated by an accident on March 16, 2011. She is not entitled to any benefits. Alternately, she is not entitled to the extent of benefits she claims. Defendants acted reasonably at all times; attorney fees are not awardable under the facts of record.          EVIDENCE CONSIDERED          The record in the instant case included the following:

1. Oral testimony at hearing of Claimant, her fiancé and coworker Chris Lehmann, and Employer's occupational health nurse Helen Wagner;

2. Claimant's exhibits A through W admitted at hearing;

3. Defendants' exhibits 1 through 15 and 17 through 24 admitted at hearing; and

4. Depositions of orthopedic surgeon Joseph Verska, M.D., and vocational experts Douglas Crum and Nancy Collins, Ph.D.

         Objections made in Dr. Verska's deposition regarding admission of documents are OVERRULED. Claimant failed to provide these discoverable documents—notes of the IME physician she hired—in discovery. Her objection to their untimely production is not well taken. Other objections in depositions are OVERRULED.          FINDINGS OF FACT          Prior Medical Care          1. On February 15, 2008, Claimant visited an Arizona ER complaining of one year of back pain and right leg radiculopathy with a recent flare-up. She reported the initial onset of pain arose after she tried to move a mattress while holding a baby. A lumbar CT showed a possible herniated disc at L4-5 but needed an MRI for confirmation. Generalized lumbar degeneration was seen.          2. On February 29, 2008, a lumbar MRI showed a herniated disc at L4-5 and some disc degeneration at L5-S1.          3. From March to May 2008, Claimant began treatment with a pain management specialist Henry Sanel, M.D., in Arizona for lumbar pain and radiculopathy.          4. On October 4, 2010, Claimant had additional treatment for low back pain. She reported, "Hurt Back, reinjured back 9 days ago at work shoveling potatoes." She provided a history of a "ruptured disk" at L4-5. Dean Nelson, D.O., diagnosed her condition as right lower extremity sciatica, recommended she visit a back specialist and referred her to orthopedic spine surgeon David Christensen, M.D. She did not follow-up with Dr. Christensen until April 2011.          5. On October 6, 2010, Dr. Nelson's office recorded a telephone contact from the office of spine surgeon Joseph Verska, M.D., in which Dr. Verska expressed a willingness to treat Clamant if Dr. Nelson would first order an MRI.          6. On October 14, 2010, Dr. Nelson's office contacted Claimant. Claimant deferred an MRI. Despite repeated call-backs by Dr. Nelson's office, Claimant had no further contact with Dr. Nelson.          7. Claimant has longstanding issues with depression, sometimes diagnosed as bipolar disorder, and a history of intermittent compliance taking prescribed medications for it.          The Alleged Accident          8. Claimant began full-time work for Employer about February 7, 2011. She had previously worked as a temporary employee at Employer's premises, doing the same job, for about one year. She was still in probationary status when fired on April 18, 2011.          9. All new employees initially work general labor in sanitation for Employer as part of a four-week training. The alleged accident occurred on her last day in sanitation.          10. Claimant testified she was shoveling potatoes; about two hours into the task she began to feel a gradual onset of back pain; she continued working and asked for help; she finished her eight-hour shift without help; pain gradually increased through the shift and for weeks afterward.          11. Claimant testified that the next day Claimant began working in packaging. She continued working through April 6, 2011. Then she sought medical care.          12. Employer first learned that a possible work accident had occurred when Employer received the April 6 doctors' notes. On April 13, Employer initiated contact with Claimant to learn about the allegation. Claimant denied telling her doctor her symptoms were work related. Employer contacted the doctor who "adamant[ly]" asserted Claimant did say she was injured at work.          13. In her May 4, 2011, telephone hearing for unemployment insurance benefits, Claimant first alleged March 16, 2011 as the date when the pain arose while shoveling potatoes. Her position at that time was that she did not suffer a work injury, but rather...