JOSE YEPEZ, Claimant,
v.
DRISCOLL BROTHERS, Employer,
and
LIBERTY NORTHWEST INSURANCE CORP., Surety, Defendants.
No. IC 2011-016953
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
August 19, 2016
ORDER
R.D.
Maynard, Chairman
Pursuant
to Idaho Code § 72-717, Referee Brian Harper submitted
the record in the above-entitled matter, together with his
recommended findings of fact and conclusions of law, to the
members of the Idaho Industrial Commission for their review.
Each of the undersigned Commissioners has reviewed the record
and the recommendations of the Referee. The Commission
concurs with these recommendations. Therefore, the Commission
approves, confirms, and adopts the Referee's proposed
findings of fact and conclusions of law as its own.
Based
upon the foregoing reasons, IT IS HEREBY ORDERED that:
1.
Claimant has failed to prove his acute transient kidney
failure and pulmonary complaints were caused in whole or in
part by the industrial accident of May 31, 2011.
2.
Claimant has failed to prove the right to medical care
benefits, past or future.
3.
Claimant has failed to prove he is entitled to temporary
disability benefits.
4.
Pursuant to Idaho Code § 72-718, this decision is final
and conclusive as to all matters adjudicated.
Thomas
E. Limbaugh, Commissioner, Thomas P. Baskin, Commissioner
FINDINGS
OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION
INTRODUCTION
Pursuant
to Idaho Code § 72-506, the Idaho Industrial Commission
assigned the above-entitled matter to Referee Brian Harper,
who conducted a hearing in Pocatello, Idaho, on July 22,
2015. Claimant was represented by Paul Curtis, of Idaho
Falls. Lea Kear, of Boise, represented Driscoll Brothers
("Employer"), and Liberty Northwest Insurance
Corp., ("Surety"), Defendants.
1 Ester Torres served as an interpreter
for Claimant. Oral and documentary evidence was admitted. Two
post-hearing depositions were taken and the parties submitted
post-hearing briefs. The matter came under advisement on July
21, 2016.
ISSUES
The
issues to be decided are:
1. Whether the condition for which Claimant seeks benefits
was caused by the industrial accident; and
2. Whether and to what extent Claimant is entitled to the
following benefits:
a. Medical care; and
b. Temporary disability benefits.
Reserved
issues include PPI, PPD, retraining, and attorney fees.
CONTENTIONS
OF THE PARTIES
Claimant
argues that as a result of being sprayed by herbicides on May
31, 2011, while working for Employer, he suffered renal and
pulmonary injuries. He is entitled to appropriate benefits
for this accident.
Defendants
argue Claimant suffered no compensable injuries when he was
exposed to agricultural chemicals on May 31, 2011. Claimant
is not entitled to any benefits.
EVIDENCE
CONSIDERED
The
record in this matter consists of the following:
1. Testimony of Claimant and his wife, Bonnie Yepez, taken at
hearing;
2. Claimant's Exhibits (CE) 1 through 28, admitted at
hearing;
3. Defendants' Exhibits (DE) 1 through 112, admitted at hearing;
4. The post-hearing deposition transcript of Stewart Curtis,
D.O., taken on October 30, 2015; and
5. The post-hearing deposition transcript of Lawrence Klock,
Jr., M.D., taken on January 26, 2016.
Any
objections preserved during the depositions are overruled.
Having
considered the evidence and briefing of the parties, the
Referee submits the following findings of fact and
conclusions of law for review by the Commission.
FINDINGS
OF FACT
1. At
the time of hearing, Claimant was a 29 year old agricultural
worker, living in Aberdeen.
2.
Mid-morning on May 31, 2011, Claimant was working on
irrigation wheel lines in a potato field at Employer's
farming operations. Claimant noticed a chemical spraying
truck enter the field where he was working. The truck began
spraying chemicals as it proceeded toward him. Claimant
finished his task and began walking out of the field. His
course of egress took him directly toward the approaching
chemical truck. The truck was spraying just two rows over
from where Claimant was walking out of the field. As the
sprayer went by Claimant, he turned his head away from the
nozzle in an effort to shield his face from the chemicals.
3. As
the sprayer passed by Claimant, chemical mist coated him from
head to foot. Claimant's clothing was dampened by the
chemical spray, more so on his right side. Because Claimant
was walking in the direction opposite the sprayer's line
of travel, Claimant had to walk through the residual chemical
vapors and mist from the spraying operation all the way out
of the field. Claimant estimates he was exposed to the
chemical fumes for about two minutes.
4.
Immediately after this exposure, Claimant felt nauseated and
dizzy. His co-workers had seen what happened, and when
Claimant told them how he felt, they suggested he drink lots
of water. Claimant did as instructed, but continued to feel
nauseated throughout the remainder of his work day, which
lasted until after 7:00 p.m. Claimant did not change his
clothing or shower until he got home after work.
5.
Claimant developed a sore throat and cough by that evening.
He also began to experience recurring bloody
noses.
3 These symptoms continued
over the next few weeks, but eventually resolved without
medical intervention. Although he testified he continued to
feel poorly, Claimant missed no work throughout this time
frame.
Claimant's
Kidney Issue
6. On
the afternoon of July 10, 2011, Claimant went to the Portneuf
Medical Center emergency room complaining of left-sided flank
pain. There he saw Kurtis Holt, M.D. Claimant indicated his
pain began that morning, and intensified to the point where
he sought medical treatment. Claimant's flank pain was
accompanied by nausea.
7. Dr.
Holt ordered a CT scan of Claimant's abdomen and pelvis,
which uncovered a tiny punctate non-obstructing stone in
Claimant's left kidney. The kidney scan also revealed
minor bilateral perinephric stranding, but no
hydronephrosis.
4
8. Dr.
Holt also ordered blood and urine lab tests. The urine tests
came back normal. However, the blood work came back with a
creatinine reading of 2.1, and BUN (blood urea nitrogen) of
22 – both indicative of impaired kidney function. The
blood testing also showed an elevated white blood cell count.
9.
Claimant was given an antibiotic IV at the hospital, and
prescribed Cipro antibacterial tablets to treat his presumed
renal colic. Prior to discharging Claimant, Dr. Holt also
scheduled him for an appointment with a nephrologist.
10.
Claimant presented at Idaho Physicians Clinic Nephrology in
Blackfoot on July 14, 2011, and was initially seen by Michael
Haderlie, M.D., a nephrologist. Claimant continued to
complain of back pain, with tenderness radiating into his
testicles bilaterally.
11. Dr.
Haderlie's office notes include in Claimant's history
a recitation of the chemical spraying incident, but the
doctor was under the impression the event took place two
weeks prior to Claimant's office visit. In reality, it
had been about six weeks since the accident. Nevertheless,
Claimant indicated that since then, he had not been feeling
well, experiencing nausea and vomiting. Dr. Holt's notes
recorded that Claimant began having significant back pain on
Sunday, July 10, 2011, severe enough to prompt a trip to the
emergency room on that date. The back pain was continuing.
12. Dr.
Haderlie ordered lab work. The urinalysis was
"completely unremarkable." However, Claimant's
blood work showed an elevated creatinine level of 2.
Claimant's white blood cell count was down from 11 to
7.4.
13. Dr.
Haderlie diagnosed severe acute kidney injury. The doctor
felt the injury was most likely from an infectious source,
causing bilateral kidney inflammation. Dr. Haderlie
prescribed another antibiotic, azithromycin, in addition to
Claimant's previously-prescribed Cipro.
14. Dr.
Haderlie could not rule out chemical exposure as the source
of Claimant's problem, and asked him to find out exactly
what chemicals he had been exposed to when he was sprayed...