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Shubert v. Macy's West, Inc.

Supreme Court of Idaho

February 27, 2015

LUANN SHUBERT, Claimant-Appellant,
MACY'S WEST, INC., Employer; LIBERTY INSURANCE CORPORATION, Surety, Defendants-Respondents

2015 Opinion No. 26

Page 1100

[Copyrighted Material Omitted]

Page 1101

Appeal from the Industrial Commission.

Idaho Industrial Commission order denying motion to reconsider, affirmed.

LuAnn Shubert, Nampa, Pro se appellant argued.

Law Offices of Kent W. Day, Boise, for respondents. Kent W. Day argued.



Page 1102

BURDICK, Chief Justice

This case arose after LuAnn Shubert fell and injured her lower back while working at a Macy's store. Shubert appeals the Idaho Industrial Commission's order holding that she was (1) medically stable on November 21, 2007; (2) not entitled to medical benefits beyond that date; (3) not entitled to temporary disability benefits; (4) entitled to a permanent partial impairment rating of 5% of the whole person; and (5) entitled to a 10% permanent partial disability rating. Shubert argues that she is entitled to ongoing medical care, temporary disability benefits, and total permanent disability benefits over 10%. Macy's West (" Macy's" ) and Liberty Insurance Corporation (" Liberty" ) contend that Shubert is rearguing the facts. We affirm the Commission.


LuAnn Shubert worked as a sales associate at a Macy's department store, and her duties included working in various departments

Page 1103

as needed. After the store closed on May 1, 2006, Shubert went to retrieve her purse to leave. She tripped on an anti-fatigue mat near the cash register and fell to the floor. Shubert immediately felt pain all over, including in her elbows, hands, feet, knees, hip, and back. She managed to stand up and leave the store that night. The next day, she reported the fall to a supervisor. On May 16, 2006, Shubert asked a manager about that fall report. The manager told her to fill out an incident report.

Shubert waited to see if she would get better on her own. Three months later, she still had pain in her low back and left hip and leg. Shubert told her manager, who told her to go to Primary Health for treatment. Shubert did so, and on August 31, 2006, a nurse practitioner at Primary Health diagnosed a low back strain and left hip pain. An x-ray showed no acute abnormalities. The nurse practitioner restricted Shubert from lifting, pushing, or pulling more than 20 pounds, and attempted to prescribe anti-inflammatory medicine. Shubert would not take the medicine because she believed it would give her a urinary tract infection. Shubert was then referred to the occupational medicine department.

Shubert saw Dr. Scott Lossman in that department on September 6, 2006. He diagnosed a low back strain with sacroiliitis and left leg sciatica. Dr. Lossman prescribed Shubert medication and referred her to physical therapy. He found that she was not at maximum medical improvement (" MMI" ). Shubert followed up a month later. Shubert reported slight improvement in pain, but had stopped taking her medications. Dr. Lossman kept his original diagnosis.

A week later, Dr. Lossman saw Shubert again. Shubert reported that she was doing much worse, reporting a 10 out of 10 pain level in her low back and sacroiliac (" SI" ) joint area that worsened with physical therapy. She indicated that she was not taking any medicine because medicine gives her bladder infections. Dr. Lossman maintained his diagnosis and ordered an MRI. The MRI showed a L4-5 annular disc tear in Shubert's back. Dr. Lossman discussed the MRI with Shubert, telling her that he had run out of treatment options. He referred Shubert to Dr. Nancy Greenwald.

Dr. Greenwald saw Shubert on December 11, 2006. After taking Shubert's medical history, Dr. Greenwald limited Shubert to lifting 30 pounds occasionally, 15 pounds frequently, and 10 pounds continuously. Dr. Greenwald ordered an electromyography (" EMG" ). Dr. Greenwald also referred Shubert to physical therapy and prescribed Lidoderm patches. Dr. Greenwald discussed the EMG with Shubert in February 2007. The EMG was normal with a diagnosis of left L5 radiculitis. Shubert complained of left buttock pain and had not yet visited her physical therapist. Dr. Greenwald stressed the importance of physical therapy. About a month later, Shubert saw Dr. Greenwald again. Shubert had begun physical therapy, but Dr. Greenwald saw no improvement in Shubert's condition. Dr. Greenwald also recommended an epidural, which Shubert said she would think about.

In April 2007, Shubert again returned to Dr. Greenwald with pain complaints. One complaint was new: a bilateral stabbing pain in the front of her thighs. Dr. Greenwald ordered an MRI. Shubert followed up the next month. Shubert complained about her old symptoms and of new ones, including calf cramping, left foot swelling, and poor sleep due to pain and cramping. Shubert's MRI showed degenerative changes at L4-5 and L5-S1 with a " broad based disk bulging associated with fissuring or tearing of the left foraminal/far lateral annular fibers." The MRI showed no evidence of a herniated disk or nerve root impingement. Dr. Greenwald then requested an independent medical exam.

Dr. Kevin Krafft conducted that exam on August 9, 2007. He diagnosed left SI joint dysfunction and possible L5 radiculitis. He recommended physical therapy, medicine, and a steroid injection. Dr. Krafft causally connected Shubert's condition to her fall at Macy's. He also stated that Shubert had not achieved MMI. Dr. Krafft wrote a letter to Liberty, stating Shubert's symptoms were more probably than not from the accident and that her condition was not yet stable.

Page 1104

Shubert returned to Dr. Greenwald two months later. Shubert complained of new symptoms, including groin and leg pain. Shubert stated that it was difficult to carry a gallon of milk and hard to bend and kneel at work. Dr. Greenwald discussed an SI joint injection. Shubert said she was not interested. Dr. Greenwald wrote Shubert a prescription for Neurontin, took an x-ray, and suggested more physical therapy. Shubert saw Dr. Greenwald again on November 1, 2007. Shubert had more pain, which she attributed to physical therapy. Dr. Greenwald agreed to stop physical therapy because it had not helped. Shubert had stopped taking Neurontin. Dr. Greenwald instead gave Shubert Lyrica samples.

Shubert again visited Dr. Greenwald on November 21, 2007. Shubert had stopped taking Lyrica because it blistered her lips. Shubert had not done her home exercises because of pain. Dr. Greenwald opined that Shubert had reached MMI. Dr. Greenwald explained that Shubert could have radiculitis on her left side and suggested a diagnostic epidural injection. Shubert refused. Dr. Greenwald then told Shubert she could offer nothing further for pain relief. Dr. Greenwald gave Shubert permanent restrictions of medium work duty and no lifting greater than 35 pounds. The doctor assessed Shubert's injuries ...

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