2014 Opinion No. 118.
[Copyrighted Material Omitted]
Appeal from the Industrial Commission of the State of Idaho.
The decision of the Commission is affirmed. Costs on appeal are awarded to respondents.
Cannon Law Firm, Lewiston, attorneys for appellant. Ned A. Cannon argued.
H. James Magnuson, Coeur d'Alene, attorney for respondents.
Chief Justice BURDICK, Justices EISMANN, J. JONES and HORTON CONCUR.
[157 Idaho 531] WALTERS, J., pro tem
Su Warren sought worker's compensation benefits from her employer, Williams & Parsons, PC, CPAS (Williams & Parsons), and Idaho State Insurance Fund (ISIF), for injuries received on January 23, 2007, during the course of her employment. The Idaho Industrial Commission (the Commission) concluded that Warren had a permanent partial impairment (PPI) of five percent of the whole person and was entitled to temporary total disability and temporary partial disability during the period of recovery through December 23, 2008, the date of maximum medical improvement. The Commission also concluded that Warren failed to establish entitlement to medical care in the form of a pain management program, permanent disability in excess of PPI, retraining benefits, or attorney fees. The Commission denied Warren's motion for reconsideration. Warren appeals to this Court. We affirm.
I. Factual And Procedural Background
Warren was employed by Williams & Parsons. On January 23, 2007, Warren was injured at her work when a motor vehicle struck the wall directly outside her office, propelling her across the room. Following the accident, Warren initially complained of dizziness, facial pain, and pain in her left hand. She was treated by her primary care physician, Scott Burgstahler, M.D., who noted subtle evidence for cognitive impairment or decreased concentration ability. X-rays taken of Warren's left wrist and hand were negative. A CT scan of Warren's head taken on January 30, 2007, showed no abnormality. On February 9, 2007, Dr. Burgstahler opined in a follow-up visit that Warren had nearly fully recovered. Dr. Burgstahler recommended continuing physical therapy for her left shoulder. Warren received physical therapy from February 12, 2007, to March 15, 2007. Upon discharge from physical therapy, Warren's symptoms had improved substantially.
On March 13, 2007, Williams & Parsons terminated Warren's employment, claiming
[157 Idaho 532] that her work performance had deteriorated approximately four months before the accident. At the time of her termination, Warren was employed full-time earning fourteen dollars per hour plus overtime during tax season.
On June 9, 2007, Warren reported some paresthesia in her hands and thumbs bilaterally. Warren had a cervical spine MRI on July 13, 2007, which showed mild bony narrowing at C3-4 and a small degenerative disc protrusion at C5-6, neither of which could be correlated to her complaints.
On August 13, 2007, Warren was examined by Jeffrey McDonald, M.D. Dr. McDonald noted diminished sensation on Warren's first finger on the right hand, but no other atypical findings on examination. Dr. McDonald also reviewed Warren's MRI, which he noted to show a moderately large disk herniation at C5-6 with a probable tear. Dr. McDonald recommended surgery. On September 4, 2007, Warren underwent an anterior cervical discectomy and fusion at C5-6.
Six months post-surgery, X-rays and a CT scan of Warren's cervical spine showed good stability and alignment. Although Warren's spine was stable, Dr. McDonald noted that the fusion was incompletely ossified. Dr. McDonald remained concerned about her pain and loss of range of motion. Dr. McDonald prescribed a TENS (Transcutaneous Electrical Nerve Stimulation) unit for Warren in January of 2008 to ameliorate her pain.
In late 2007 or early 2008, Warren secured new employment after Dr. McDonald released her to return to work following her cervical spine fusion. As of May 10, 2012, the date of Warren's hearing in this matter, she was employed by the City of Ponderay as a clerk, earning $18.43 per hour plus full-time benefits on a thirty-two hour work week. She also worked part-time for a winery. Both the City of Ponderay and the winery voluntarily provided Warren with ergonomic work stations to help her cope with ongoing complaints of neck pain.
On May 12, 2008, Warren reported neck pain and generalized fatigue. On June 19, 2008, Warren reported significant improvement with some residual muscle tightness. Warren also reported that use of the bone stimulator had been helpful.
On June 29, 2008, Warren was involved in a motorcycle collision unrelated to her worker's compensation claim. Warren was a passenger on a motorcycle when it hit a deer. She was not wearing a helmet. In that accident, she dislocated her left shoulder, broke bones in her left leg, and suffered several scrapes, lacerations, and bruises. Michael DiBenedetto, M.D., noted during his examination that Warren denied neck pain and that she had painless range of motion. Dr. DiBenedetto surgically repaired Warren's tibia and fibula fractures and repaired her fractured ankle.
During a follow-up appointment with Dr. DiBenedetto on August 1, 2008, Warren reported pain and loss of strength and range of motion in her left arm. Warren also was examined by Dr. McDonald on August 1, 2008. She reported the motorcycle accident, but did not describe any neck or upper extremity symptoms. Warren continued to use the bone stimulator. X-rays showed the ossification remained incomplete, but alignment and stability remained good.
On August 14, 2008, Warren had a left shoulder MRI which showed a tear of the anterior tendon. On September 23, 2008, Dr. DiBenedetto repaired Warren's torn rotator cuff. He opined that the rotator cuff repair was made necessary due to the motorcycle accident.
On October 28, 2008, cervical spine X-rays showed no problems with the alignment or condition of Warren's neck or the fusion appliances. Warren declined additional physical therapy. On October 30, 2008, Dr. McDonald recommended that Warren discontinue use of the bone stimulator after she reported dramatic improvement since August.
On December 23, 2008, Warren was examined by J. Craig Stevens, M.D., at the request of Williams & Parsons in relation to her January 23, 2007, work accident. Dr. Stevens opined in his Independent Medical Evaluation (IME) that Warren suffered a cervical disc herniation as a result of the
[157 Idaho 533] work-related accident and her condition was fixed and stable. Dr. Stevens determined that Warren suffered PPI rated at five percent of the whole person as a result of the injury, surgery, and continuing subjective complaints of nonverifiable mild residual radiculopathy. Dr. Stevens did not recommend any specific work restrictions.
On April 30, 2009, Warren returned to Dr. Burgstahler with complaints that " her neck really hasn't been right ever since the work accident and fusion surgery." Warren also reported to Dr. Burgstahler that she " was rated for disability at 5% and she is convinced her disability is significantly higher than that." Dr. Burgstahler referred Warren to a neurosurgeon, John Demakas, M.D., who had been recommended by Warren's attorney. Dr. Demakas consulted with Warren and agreed that her cervical fusion " looked fine." On October 20, 2009, Warren reported to Dr. Burgstahler a little dysphoria with reduced cognitive awareness since the work accident. A cervical spine MRI obtained on December 3, 2009, showed minimal degenerative changes at levels other than the stable fusion. From June to November of 2009, Warren also underwent acupuncture and other nontraditional therapeutic treatments.
On April 9, 2010, Dr. McDonald disputed Warren's claim to Dr. Burgstahler that her neck had never really improved. Dr. McDonald confirmed that according to his records, Warren had almost completely improved by at least August or September of 2008. Dr. McDonald also concurred with the conclusions reached by Dr. Stevens in his IME and noted that the December 2009 MRI findings showed no new problem or change in Warren's neck condition.
On August 9, 2010, Warren filed a worker's compensation complaint with the Commission against Williams & Parsons for injuries related to the January 23, 2007, work accident.
On May 20, 2011, and August 5, 2011, Craig Beaver, Ph.D., evaluated Warren's mental and psychological status at the request of Williams & Parsons. Three of the four tests administered by Dr. Beaver indicated that Warren was consciously or unconsciously over-reporting her symptoms. Dr. Beaver diagnosed Warren with (1) dysthymic disorder; (2) pain disorder associated with psychological factors and medical condition; and (3) adjustment disorder with anxious mood. Dr. Beaver opined that while the work-related accident did contribute in some respect to his diagnosis, it was not the predominant cause of his diagnosis. Dr. Beaver's report reflects his opinion that fifty percent of the adjustment disorder with anxious mood was attributable to the work-related accident. Dr. Beaver also opined that the three psychological diagnoses were not significant enough to warrant an impairment rating or restrictions. Further, Dr. Beaver noted that Warren was functioning well in her new position with the City of Ponderay, " her psychological diagnoses notwithstanding." Dr. Beaver testified that Warren " might benefit from a chronic pain management program as part of an effort to resolve some of her pain complaints related to her psychological pain disorder." However, Dr. Beaver testified that the need for the chronic pain management program was only partly related to the work accident, which was in accordance with his written report.
In response to Dr. Beaver's reports, Warren & Parsons represented in writing on August 23, 2011, September 20, 2011, July 27, 2012, August 23, 2012, and August 24, 2012, that it was willing to pay for Warren to attend one of several pain management programs. Warren has not attended a pain management program despite the offers from Williams & Parsons.
Warren's prior medical history is significant for depression and anxiety, back, neck and upper back pain, headaches, fatigue and malaise, as well as left foot, knee, and left shoulder injuries from a bike accident in 1999.
Vocational expert Douglas Crum completed an evaluation of Warren for Williams & Parsons. He opined that Warren likely suffered no loss of access to her local labor
[157 Idaho 534] market and no loss of wage-earning potential as a result of the work accident.
On May 10, 2012, a hearing was held in this matter before Referee Douglas A. Donahue. Warren requested a continuance, claiming that Warren was not at maximum medical improvement (MMI) and continued to suffer physical and psychological injuries as a result of the accident. Williams & Parsons objected to a continuance of the hearing. The Referee denied Warren's request. In addition, the Referee excluded pages 47 through 57 of Exhibit 2, pages 48 through 69 of Exhibit 12, and all of Exhibit 19 from the record, finding that they were untimely produced without good cause under Judicial Rule of Practice and Procedure 10.
On October 5, 2012, Warren filed another motion to stay the proceedings on the bases that she had been authorized to attend a pain management program and that reevaluation of her impairment and disability would be appropriate following the program. Williams & Parsons objected. The Commission denied Warren's motion.
On March 27, 2013, the Commission concurred with the Referee's recommendations and adopted the Referee's findings and conclusions. The Commission concluded: (1) Warren injured her neck as a result of the work accident; (2) Warren was entitled to total temporary disability (TTD) and total permanent disability (TPD) during the period of recovery; (3) Warren was entitled to medical care received, related to the accident, through December 23, 2008; (4) Warren did not show her entitlement to medical care in the form of a pain management program; (5) Warren was entitled to a PPI rating of five percent of the whole person; (6) Warren failed to show she was entitled to permanent partial disability (PPD) in excess of PPI; (7) Warren failed to show entitlement to retraining benefits; and (8) Warren failed to show a basis for attorney's fees.
On April 10, 2013, Warren filed a motion for reconsideration. On May 30, 2013, the Commission denied Warren's motion to reconsider. ...