ERIK JAMES YEAGER, Claimant,
v.
BMC WEST, L.L.C., Employer,
and
ACE AMERICAN INSURANCE CO., Surety, Defendants.
No. IC 2016-013845
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
July 29, 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 Michael E.
Powers, who along with Commissioner Aaron White, conducted a
hearing in Boise on November 1, 2018. Todd Joyner of Nampa
represented Claimant and David Gardner of Pocatello
represented Employer BMC West, L.L.C., and its Surety Ace
America Insurance Company (Defendants). Oral and documentary
evidence was presented and the record remained open for the
taking of two post-hearing depositions and the submission of
post-hearing briefs. This matter came under advisement on
January 29, 2019, but Referee Powers retired from the
Commission prior to the completion of his recommendation. The
matter was reassigned to the Commissioners on April 18, 2019
and is now ready for decision.
ISSUES
The
issues to be decided are:
1.
Whether and to what extent Claimant is entitled to permanent
partial impairment (PPI) benefits;
2.
Whether and to what extent Claimant is entitled to permanent
partial disability (PPD) benefits; and
3.
Whether Claimant is entitled to an award of attorney fees for
Defendants’ delay in paying certain PPI benefits.
CONTENTIONS
OF THE PARTIES
Claimant
contends that he is entitled to PPD of between 64% - 73.5%
inclusive of his PPI according to his vocational expert Nancy
Collins, Ph.D. He is also entitled to attorney fees for
Defendants’ unreasonable delay in paying certain PPI
benefits. Defendants contend that, according to their
vocational expert William Jordan, M.A., C.R.C., C.D.M.S.,
Claimant is entitled to, at most, PPD of 31% inclusive of
impairment. Defendants also contend that Claimant is not
entitled to an award of attorney fees because the extent of
any PPD was and continues to be contested and Defendants have
no obligation to pay PPD until that amount is finally
determined by the Commission.
EVIDENCE
CONSIDERED
The
record in this matter consists of the following:
1. The testimony of Claimant and William Jordan taken at the
hearing.
2. Claimant’s Exhibits A-X admitted at the hearing.
3. Defendants’ Exhibits 1-6 admitted at the hearing.
FINDINGS
OF FACT
Claimant’s
Hearing Testimony:
1.
Claimant was 45 years of age and residing in Kuna at the time
of the hearing. Before that, he resided in Meridian for 23
years.
2.
Claimant completed high school and spent three-and-a-half
years in the Marines as a truck driver and tank gunner. He
has no further college or technical education. Mr. Jordan
noted in his employability report that Claimant had
experience working on his parents’ farm, and as a prep
cook, drug store retail clerk, and pizza maker prior to
graduating from high school. DE 6, p. 63. He also appears to
have worked in construction. Id.
3.
About four months after his military service ended, Claimant
began his employment with Employer herein, BMC West, in May
of 1993. He initially delivered sheet rock
“books” to houses and apartments. After about
nine years at that position, Claimant began delivering lumber
in a flatbed tractor/trailer.
1 Claimant also chained and strapped
heavy equipment onto lowboy trailers. His Class A CDL is
still current.
May
20, 2014 Accident/Injury
4. On
May 20, 2014, Claimant suffered a work-related injury to his
right elbow while strapping a trailer. On or about August 13,
2014, he underwent a debridement and reattachment of the
common extensor origin and advancement and repair of the
lateral collateral ligament, performed by Dr. Kloss. He did
poorly post-surgery. On February 10, 2015, he underwent
further MRI evaluation of the right elbow. On March 6, 2015,
he had repeat surgery on the right elbow. Dr. Kloss performed
a tendon transfer from Claimant’s left arm to his right
elbow to repair the recurrent defect. On or about January 20,
2016, Claimant underwent a closing evaluation by Paul
Collins, M.D., at the request of the State Insurance Fund.
Dr. Collins reported, inter alia, that although
Claimant was right-arm dominant prior to the work injury, he
preferentially used his left upper extremity following his
right elbow surgeries. However, Dr. Collins also recorded
that Claimant returned to work in May of 2015 and was
released to full work on July 30, 2015 by Dr. Kloss. Dr.
Collins reported that Claimant returned to his previous job
without the need for accommodation. DE 2. Dr. Collins found
that Claimant was entitled to a 7% whole person impairment
for his right elbow.
5.
During his pre-hearing deposition, Claimant testified to the
May 20, 2014 accident. In terms of the permanent
limitations/restrictions he was given as a result of that
accident, he gave conflicting testimony. On the one hand, he
testified that he was given restrictions against “heavy
lifting, pulling,” but conceded that he could not
remember the full extent of the restrictions. Clt. Dep., p.
17. On the other hand, he testified that he was given a
restriction against lifting more than 15 pounds with his
right arm as a consequence of the elbow injury. Id.
at 18. Further, Claimant testified that instead of a 7% whole
person rating, he had been given a 9% whole person rating for
the right shoulder. Id. at 17. Aside from Dr.
Collins’ reports, the record does not contain any other
medical records which might shed light on whether Claimant
was given a different impairment rating by Dr. Kloss, or some
other physician. The record does reflect that Surety paid a
7% whole person (14% lower extremity) rating in connection
with the elbow injury. See DE 3, p. 35.
6. At
hearing, Claimant was likewise queried concerning the 2014
accident:
Q: [By Mr. Joyner] There was an indication that you had an
elbow injury in 2014; is that correct?
A: Yes.
Q: What day was that on?
A: May 20 of ’14. I think.
Q: Okay. It sounds like May 20 is not a good day for you.
A: No.
Q: On your right elbow did you have surgery?
A: Yes.
Q: It sounds like you had more than one.
A: Yes.
Q: Did that keep you from doing some work?
A: No.
Q: Were you off work for any period of time?
A: Yes.
Q: Did it heal back up?
A: Yes.
Q: Did you continue to do your job with BMC?
A: Yes.
Q: Did you have any problems with your employment at BMC in
regards to them staying in contact with you while you injured
in 2014?
A: No.
Q: When you returned to work after that 2014 injury, did you
continue to have to strap down your loads?
A: Yes.
Q: Did you have any problems?
A: Yes.
Q: Okay. What did you do?
A: I manipulated myself to do my job. Q: Okay. Did you do
your job? A: Yes.
Q: Was [sic] there any complaints from your employer? A: No.
HT., pp. 31-33.
7. At
the time of the May 20, 2014 accident, Employer’s
worker’s compensation risks were insured by the same
surety providing coverage in the instant matter. On or about
February 5, 2018, the Industrial Commission approved an Idaho
Code § 72-404 settlement in connection with the May 20,
2014 accident/injury, pursuant to the terms of which Claimant
was paid $35,000 to resolve all remaining issues in the case,
including, inter alia, such claims as Claimant might
have for additional impairment/disability and future medical
care:
The parties acknowledge that the nature and extent of
temporary and permanent disability, and medical services and
expense in this matter are uncertain and my be continuing or
progressive and my substantially exceed that set forth above;
however, this shall not limit the scope of this Stipulation
and Agreement of Lump Sum Discharge or the Commission’s
Order of Approval and of Discharge, both of which contemplate
and include all rights and claims to all income
benefits, all medical benefits, and any and all other all
other amounts awardable under the workers’ compensation
law, whether or not known, herein listed, discoverable, or
contemplated by the parties.
DE 3, p. 31 (emphasis in original).
May...
