Appeal from the Industrial Commission.
The opinion of the court was delivered by: Burdick, Justice
Industrial Commission decision, affirmed.
This case involves an occupational disease claim that came before the Idaho Industrial Commission (Commission) at an Emergency Hearing on December 19, 2008. Appellant Robert A. Watson (Watson) alleged that his Sawyer/Assembler job with Joslin Millwork, Inc. (Joslin) (when referred to jointly, Joslin and Liberty Northwest Insurance Co. are referred to as "Respondents") exposed him to the characteristic and peculiar hazards of repetitive heavy lifting, twisting and bending. Watson contends that his industrial exposure to the hazards of his job caused his non-acute lumbar spine occupational disease. The Commission denied his claim, finding that Watson failed to prove that his need for surgery was the result of an occupational disease arising out of, and in the course of, his employment. We affirm the decision of the Commission.
I. FACTUAL AND PROCEDURAL BACKGROUND
Watson began his employment with Joslin around September 13, 2005, at the age of 28. Prior to that time, Watson was employed as a drywall hanger for approximately nine years. In November 2007, Watson began to develop pain in his left buttocks that traveled down his left leg to his knee. Watson stated that he was not involved in any type of accident at work or outside of work prior to the onset of his symptoms. On December 12, 2007, he began seeing a chiropractor named Miles Ranck for evaluation and treatment. On the intake form that Watson filled out on his first visit to Dr. Ranck he stated that his injury had been caused by "physical labor." After five or six sessions without improvement, Dr. Ranck referred Watson to a physiatrist, Dr. James Bates.
Watson saw Dr. Bates from January 17, 2008, until March 14, 2008. When Watson‟s condition did not improve with the use of prescription medication, Dr. Bates ordered an MRI. The MRI was completed on January 23, 2008, and showed a "moderate sized left paracentral disk herniation at L5-S1 with an extruded fragment which may be a free fragment extending down into the left lateral recess dorsal to the S1 vertebral body resulting in severe left lateral recess stenosis and displacement of the traversing left S1 nerve root posteriorly." Dr. Bates eventually referred Watson to a neurosurgeon, Dr. Tyler Frizzell. Watson met with Dr. Frizzell on March 6, 2008, and Dr. Frizzell concluded that Watson needed surgery.
Watson testified that he did not have any major injuries, illnesses, diseases or other problems involving his lower back when he was younger. Watson was injured in a car accident when he was 14 years old, but he did not suffer any injuries to his lower back. Watson further testified that prior to his work with Joslin he was not involved in any industrial injuries or other motor vehicle accidents and that he had absolutely no low-back problems.
Watson stated that he told his supervisor at Joslin, Brian Leisten, that he wanted to get out of the drywall business because his "elbow just couldn‟t take the pressure anymore." A letter from Leisten dated April 12, 2008, states that Watson had made comments regarding soreness in his elbow, shoulder and back, attributed to installing sheetrock. Watson denies having said this. Leisten also wrote that, near the end of 2007, Watson asked for time off due to soreness in his back and "[i]n the past, on two occasions that [Leisten was] aware of, [Watson] needed to have his back "popped‟ by a chiropractor."
Watson stated that, prior to going to work for Joslin he did not visit a chiropractor. However, "shortly after" Watson started working at Joslin he started seeing a chiropractor for treatment for low-back pain. The pain did not include "any symptoms that radiated from [his] low back down into [his] left buttock or left leg to the knee." His first of two visits was on December 13, 2005. During that visit, an x-ray was taken and the chiropractor told Watson that "there was nothing wrong." In May 2006, Watson was in a motor vehicle accident where he suffered injuries to his upper back, lower neck and shoulder. The emergency room physician determined that Watson was suffering from whiplash. Watson specifically testified that he did not suffer any injury to his lower back in that accident.
Watson described the physical demands of his job as including heavy lifting, twisting and bending. More specifically, Watson described his job as follows:
I use the forklift on the production floor to pick up a pallet/unit of laminated particle board (approximately 34 sheets) and move it into position near the beam saw. After placing the pallet-unit on the floor with the forklift, I have to physically reach out away from my body with both hands/arms and grab each individual 4 X 8 sheet off of the stacked pallet/unit. Each sheet weighs approximately 150 pounds. After I grab and lift the sheet, I have to twist and turn my body around approximately 180 degrees and then maneuver the sheet onto the saw and place it in the proper cutting position. I then perform cuts to specifications with the saw. After the product has been cut to specification, I will manually pick up each cut sheet and stack the individual cut sheets into a stack on the fall-off table which is attached to the saw. After I stack 4-6 individual cut pieces, I then manually grab the entire stack, lift it, turn and carry it approximately 15-20 feet where I place it on a parts‟ [sic] cart. The cart has 2 shelves. The upper shelf is approximately 40 inches off of the ground and the lower shelf is approximately 10 inches off of the ground. When I slide the cut pieces into the shelves, I bend and twist at the waist in order to manipulate and position the cut product. In order to place the cut product on the lower shelf, I have to bend all the way down almost to the floor and then bend over at the waist from my body. Most of the time, I have to stretch my leg out and place my right foot behind the wheel on the cart in order to prevent it from moving or slipping away during the shelving process. During a standard 8.0 hour work shift, I will lift, carry, twist, turn, bend at the waist, push and pull these laminate sheets approximately 6 out of every 8 hours of 75% to 80% of the time. As part of the production cycle, I am required to perform these physical movements repeatedly at a very fast pace (i.e., as fast as the saw will cut the product and as fast as I can move my body while lifting and carrying these heavy sheets of laminate).
Watson stated that he performed his work "as fast as the saw lets me. Usually at a moderate to fast pace."
Dr. Frizzell sent a letter to Dr. Bates on March 6, 2008, stating that Watson had "about exhausted conservative measures," and that he had discussed a lumbar microdiscectomy with Watson. On May 5, 2008, Dr. Frizzell sent a letter to Watson‟s attorney answering "yes" to five questions pertaining to the issue of whether Watson‟s disease was incurred in or arose out of and in the course of his employment with Joslin and was, in fact, a lumbar spine occupational disease.
Watson‟s attorney wrote Joslin‟s workers‟ compensation insurance company, Liberty Northwest, a letter on May 8, 2008, putting them on notice of Watson‟s occupational disease claim. In that letter, the attorney asked Liberty Northwest to authorize the L5-S1 microdiskectomy surgery recommended by Dr. Frizzell. Liberty Northwest did not respond. Liberty Northwest also failed to reply to two subsequent requests.
Watson filed his Complaint with the Industrial Commission on June 11, 2008. The complaint alleged that:
[t]he Claimant contracted/incurred an occupational disease in his low back as the result of performing his job duties for Joslin Millwork, Inc., which consisted of reaching, grabbing, lifting, carrying, twisting, turning, pushing pulling and bending over at a fast pace.
Watson stated that he met with Dr. Michael Weiss in October 2008 and that the Independent Medical Examination (IME) process was "like a physical exam. That‟s about it. We discussed my past a little bit. The car wreck, etc." Watson said that Dr. Weiss did not ask Watson any questions about his job at Joslin. Respondents first put Watson on notice that they intended to take a post-hearing deposition of Dr. Weiss on December 8, 2008.
The referee issued his Findings of Fact, Conclusions of Law, and Recommendation (Findings of Fact) on June 8, 2009, finding that Watson had not incurred a compensable occupational disease. The referee primarily relied on the following "observations" of Dr. Weiss in making his determination:
9. Dr. Weiss reviewed medical records and a job description, examined Claimant, and took his history. He reached the diagnosis of chronic low back pain with sciatica. He noted that back pain is very common in the population which makes it difficult to "... say what‟s causal in something that everybody has." Dr. Weiss Deposition, p. 17. He further noted that Claimant‟s January 23, 2008, lumbar MRI revealed advanced degenerative disc disease at L5-S1 and moderate to severe left L4-L5 and mild-moderate bilateral L5-S1 facet joint arthropathy. Dr. Weiss opined that it was not possible to determine when the free fragment occurred, but that Claimant does not have sufficient physical findings to conclude that the free fragment is causing his back pain.
10. Dr. Weiss sees no connection between Claimant‟s need for back surgery and his employment. He concedes that heavy materials handling is associated with chronic back pain as is strictly sedentary work. Dr. Weiss is troubled that there was no specific event that could be temporally related to the onset of Claimant‟s back pain. He acknowledged that high impact activity can lead to the progression of underlying arthritis, but does not cause it.
The referee also found that Watson‟s "underlying degenerative joint disease and arthritis was certainly present in November 2007 and was not caused by his work." He based that finding on the fact that Watson saw a chiropractor for low-back pain on December 13, 2005, and that "prior to the commencement of his employment by Joslin, Claimant had complained to another employer that he hoped to get out of the drywall business because it was causing him low back pain." Finally, the referee stated that "[i]t would be reasonable to conclude that Claimant‟s heavy/repetitive work activities (with which Defendants do not disagree) may have speeded the progression of his underlying disease, but Nelson and its progeny preclude recovery as there is no accident here."
On July 8, 2009, Watson submitted his Motion to Strike the medical opinions of Dr. Weiss. The primary basis for this motion was Watson‟s contention that Dr. Weiss only expressed four opinions in his October 1, 2008, IME Report and none of those opinions discussed the specific hazards of Watson‟s job or addressed any of the elements of a prima facie case for a compensable occupational disease claim. Therefore, Watson contends, there was no foundation for the subsequent post-hearing medical opinions offered by Dr. Weiss and Watson was not on notice of the substance and subject matter of those medical opinions. The Commission filed its ...