Dallas L. CLARK, Claimant-Appellant,
SHARI'S MANAGEMENT CORPORATION, Employer, and Liberty Northwest Insurance Corporation, Surety, Defendants-Respondents.
Curtis & Porter, PA, Idaho Falls, for appellant. Paul T. Curtis argued.
Law Offices of Harmon & Day, Boise, for respondents. Kent W. Day argued.
Dallas L. Clark appeals from an order of the Industrial Commission of the State of Idaho (Commission) denying her worker's compensation benefits because she failed to prove that an industrial accident occurred. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Clark started working for Shari's Management Corporation (Shari's) in September 2008 as an experienced server. Clark testified that on November 24, 2008, during a graveyard shift, she suffered a herniated disc in her back while lifting a heavy silverware tray onto a high shelf. She first sought medical treatment from a chiropractor, Dr. Justin Crook, at Orchard Naturopathic Center on December 11, 2008. Dr. Crook diagnosed Clark with sciatica and attributed her injury to lifting and twisting at work. On December 15, about three weeks after her injury, Clark informed Shari's that she had been injured at work.
On December 16, 2008, after the chiropractic treatment proved to be ineffective in reducing her pain, Clark sought medical care at the Community Care and Injury Center (Community Care) in Idaho Falls. There, she was again diagnosed with sciatica and prescribed medication to manage the pain. On December 19, Clark returned to Community Care because of her pain and was referred to the emergency room at Eastern Idaho Regional Medical Center (EIRMC). EIRMC records reflect that Clark was experiencing back pain with an " onset of several days ago." Clark was diagnosed with lumbar strain and she was prescribed medication for the pain.
On December 29, 2008, Clark sought medical care from Dr. Gary Walker at Walker Spine and Sport. Dr. Walker's records state that Clark's history of back and leg pain:
[D]ates back to early November. [Clark] did not recall any particular injury but noted the onset of left lower extremity pain associated with work. It became sharper over time and has continued to worsen.
Dr. Walker prescribed medication for pain and ordered an MRI. On December 30, Clark underwent the MRI, which revealed a large left paracentral disc extrusion at L5-S1 which impacted the S1 nerve root. Due to Clark's desire to avoid surgery, Dr. Walker advised her to undergo a series of epidural steroid injections and engage in physical therapy. Clark did not complete physical therapy because the injections succeeded in reducing her pain.
In March 2009, Clark returned to Dr. Walker because her pain had returned. She received another injection, and Dr. Walker again recommended physical therapy. On March 19, Clark completed her first appointment of physical therapy with Stephanie Liddle. Liddle's treatment notes recorded that Clark:
[H]as had a four-month history of pain into her left leg. She states the pain came on suddenly, but she is unaware of any specific injury to cause her pain. She denies any background of previous history of low back pain and contributes [sic] this episode to being a server/bartender for many, many years catching up to her and her not taking care of her body ...
Clark participated in a few more sessions of physical therapy but then returned to Dr. Walker on April 7 because her pain persisted. Dr. Walker recommended consultation with a surgeon. Clark responded that she was leaving town and would " check with her insurance" before she proceeded further.
On April 22, 2009, Clark consulted Dr. Stephen Marano, a neurosurgeon, and James Cook, his physician's assistant, to discuss the possibility of surgery. Cook noted that Clark:
[B]egan having some left sided low back and left hip pain at work in early November. She cannot associate any injuries or trauma to the onset of her pain. She said that it just kind of started out of the blue. She thought it was maybe due to her standing funny.
On April 24, 2009, Zach Dummermuth, the general manager for Shari's, completed Clark's First Report of Injury (FROI). The FROI states that on November 24, 2008, Clark experienced an ache in her low back while she was " standing" and " making salad" and cites December 15, 2008, as the date that Clark notified Shari's of the accident. The FROI was received by the surety on April 28, 2009, and claims investigator Bradley Armstrong interviewed Clark on May 6. In her statement to Armstrong regarding the circumstances surrounding the accident, she attributed her injury to " standing wrong" at the salad bar and claimed her injury left her unable to lift a silverware tub into the water station.
On May 19, 2009, Armstrong sent a letter to Clark denying her claim because " there was no accident associated with" her injury. Clark decided to proceed with surgery and thereafter suffered complications from the surgery. On November 3, 2009, Clark filed a worker's compensation claim with the Industrial Commission. Clark's attorney requested an Independent Medical Evaluation (IME) from Dr. Benjamin Blair in a letter dated May 3, 2011. Dr. Blair replied in writing, stating that he believed Clark's injury was based on an accident that occurred at work because her story was convincing in light of the fact that she had no history of back pain. A separate IME was completed by Dr. Michael Hajjar at the request of the surety. Dr. Hajjar opined that Clark's medical records were inadequate to establish a causal connection with an industrial accident and later noted that Clark's delay in obtaining medical treatment after the alleged accident is evidence that the symptoms did not occur as a result of an industrial accident.
Following a hearing, on March 13, 2012, the Referee issued her Findings of Fact, Conclusions of Law and Recommendation (the Recommendation) which concluded that
Clark's claim should be denied. The Commission adopted the Referee's findings and denied Clark's claim because she failed to prove that an industrial accident had occurred. Clark filed a motion for reconsideration and rehearing. The Commission issued a 21-page memorandum order denying Clark's motion in which it held that, although the Referee's Recommendation contained factual errors, ...