Wolt v. Idaho National Laboratory, 020415 IDWC, IC 2009-015383

• Case Date: February 04, 2015
• Court: Idaho

BARBARA WOLT, Claimant, v. IDAHO NATIONAL LABORATORY, and BATTELLE ENERGY ALLIANCE, Employer, and EMPLOYERS INSURANCE OF WAUSAU, and LIBERTY MUTUAL INSURANCE, Surety, Defendants. Nos. IC 2009-015383, IC 2013-007342 Idaho Workers Compensation Before the Industrial Commission of the state of Idaho February 4, 2015           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 Idaho Falls, Idaho on January 15, 2014. Claimant, Barbara Wolt, was present in person and represented by Dennis Petersen, of Idaho Falls, Idaho. Defendant Employer, Idaho National Laboratory (INL) and Battelle Energy Alliance (BEA), and Defendant Sureties Employers Insurance of Wausau and Liberty Mutual Insurance, were represented by Susan Clark, of Boise, Idaho. The parties presented oral and documentary evidence. Post-hearing depositions were taken and briefs were later submitted.1 The matter came under advisement on September 19, 2014. 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          By agreement of the parties at hearing, the issues to be addressed presently are:

1. Whether Claimant suffered an accident causing injury;

2. Whether Claimant gave timely notice of the accident;

3. Claimant's entitlement to past medical benefits,2 including whether the condition for which Claimant seeks benefits was caused by the industrial accident;

4. Claimant's entitlement to temporary disability benefits;

5. Claimant's entitlement to attorney fees; and

6. Retention of jurisdiction.

         CONTENTIONS OF THE PARTIES          Claimant asserts she injured her low back on October 25, 2012, moving boxes at work. She alleges she gave timely notice of her accident to her supervisor, her acting supervisor, her supervisor's assistant, and a BEA-designated physician. Claimant maintains that her subsequent need for medical care of her low back is related to her accident and that she is entitled to temporary disability benefits from October 29, 2012, through the date of hearing. Lastly, Claimant asserts Defendants have unreasonably disputed receiving timely notice of Claimant's accident. She requests attorney fees for having to litigate the issue of notice.          Defendants maintain Claimant sustained no work accident on October 25, 2012, and failed to give timely notice of any accident. Defendants argue that Claimant's need for low back treatment is due to her pre-existing conditions which have also precluded her from working since October 29, 2012, and that no temporary disability benefits or attorney fees are owing.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The Industrial Commission legal file;

2. Claimant's Exhibits A-O, V-Z, and AA-BB admitted at the hearing;

3. Claimant's Exhibits P-U and CC which are hereby admitted;3

4. Defendants' Exhibits 1-31, admitted at the hearing;

5. The testimony of Claimant, Edmond Schuebert, Marjorie Owens, Stephen Gamache, Kristine Staten, Ann Vandel, and Loran Kinghorn, taken at the January 15, 2014 hearing;

6. The post-hearing deposition testimony of James H. Bates, M.D., taken by Claimant on February 2, 2014;

7. The post-hearing deposition testimony of Michael Enright, Ph.D., taken by Defendants on April 4, 2014; and

8. The post-hearing deposition testimony of Paul Johns, M.D., taken by Defendants on April 10, 2014.

         All objections made during the depositions are overruled, including Defendants' renewed objections initially made during Dr. Bates' Deposition.          FINDINGS OF FACT          1. Claimant was born in 1962. She is right-handed. She was 51 years old and lived in Idaho Falls at the time of the hearing. BEA is an employer working at the INL site, which is located approximately 45 miles from Idaho Falls.          2. Background. Claimant graduated from high school in Los Angeles in 1981. She then attended Citrus College in California where she obtained a degree in business accounting. In 1988 she worked for the Census Bureau. In approximately 1989, she commenced working with her husband's property maintenance business. For the next 11 years she handled payroll, ordered supplies, and kept maintenance records for the company's trucks. In approximately 2000, her husband died of polycystic kidney disease and Claimant then closed the business.          3. In 2000, Claimant began working for Murphy Explosives Company where she accounted for the inventory of explosives in and out of the plant. She worked for Murphy for five years. In 2005, Claimant moved to Idaho Falls and began working for Red, Inc., a temporary employment agency in Idaho Falls providing employees to companies working at the INL. Claimant was assigned to the Advanced Test Reactor site and worked for Red until 2007.          4. In 2007, Claimant began working directly for BEA as an office manager administrative assistant and move coordinator at the Advanced Test Reactor site at the INL.          5. Claimant's personal medical provider was Victoria Blair, N.P., at Family First Medical Center.          6. In April 2008, Claimant was anxious and depressed because her 12 and 15 year old sons had both been diagnosed with polycystic kidney disease, the same disease that took her husband's life. Her 15 year old son began dialysis.          7. On June 3, 2008, Claimant presented to Nurse Blair with low back and leg pain after working in her yard. Claimant reported pain in her back, buttocks, and down her right leg. Defendants' Exhibit 11, p. 223. Nurse Blair's notes specified left—but not right—leg pain; however, Claimant testified that reference to left leg symptoms was an error and she only suffered pain down her right leg at that time. Claimant received prescription Ultram and Flexeril, and a Toradol injection. Her back symptoms improved and she continued working.          8. In the summer of 2008, Claimant struggled to maintain her work performance while using all her available resources for treatment of her son at Mayo Clinic. Nurse Blair prescribed medications for Claimant's depression.          9. On February 9, 2009, Claimant presented to Nurse Blair for low back pain and pain radiating down her right leg. While seated, Claimant had turned and then noted pain down her right leg. A lumbar MRI taken March 6, 2009, revealed mild L4-5 annular bulging and mild to moderate L5-S1 central disk extrusion. Defendants' Exhibit 13, p. 274. Nurse Blair prescribed Vicodin and Flexeril, and another Toradol injection. Claimant's back symptoms improved and she continued working.          10. On April 28, 2009, Claimant suffered an accident when exiting the bus that transported BEA employees to and from the INL site. She caught her foot between the bus seats and fell, twisting her right knee. Claimant reported the accident and injury. Defendants required Claimant to seek medical treatment with a site doctor who, after x-raying her knee, concluded she had suffered no significant injury and released her to return to her usual work duties. Claimant continued to report right knee instability and requested examination by her usual medical provider. On May 1, 2009, Claimant presented to her personal medical provider, Nurse Blair, who recorded:

[Claimant] presents today after being treated at INL medical clinic after falling on the bus. She has been to the medical clinic and they have put her on NSAID's. She is not tolerating the NSAID's and has been nauseated and vomiting ever since starting. She has told the medical staff, but no changes made. She finally told the Nurse on Thursday that she needed to be seen by her primary provider and was very concerned about the unstable condition of the right knee. When walking the right knee will twist and then collapse. She was given crutches, but they were too small. When she told the medical staff about the crutches, they told her that was the only pair left and she needed to try and make it work. She is concerned that the right knee is seriously hurt and has requested a MRI numerous times.

Defendants' Exhibit 11, p. 235.          11. Upon examining Claimant, Nurse Blair found moderate to severe right knee swelling and tenderness and a positive anterior drawer sign. She ordered a...