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Aguilar v. State

Supreme Court of Idaho

March 14, 2019

ARTURO AGUILAR, Claimant-Appellant,

          Appeal from the Industrial Commission of the State of Idaho. Chairman Thomas E. Limbaugh presiding.

         The order of the Industrial Commission is vacated and remanded.

          Goicoechea Law Offices, Chtd., Boise, for appellant. Daniel J. Luker argued.

          Ludwig Shoufler Miller Johnson, LLP, Boise, for respondent. Daniel A. Miller argued.

          STEGNER, Justice.

         Arturo Aguilar (Aguilar) appeals from the Findings of Fact and Conclusions of Law and Order of the Idaho Industrial Commission in which it concluded the Idaho Industrial Special Indemnity Fund (ISIF) was not liable to him for worker's compensation benefits. The Industrial Commission (the Commission) found that Aguilar was totally and permanently disabled and that he had pre-existing impairments that constituted subjective hindrances to his employment. However, the Commission rejected Aguilar's claim that the ISIF was liable for benefits. We vacate and remand.


         Aguilar was born in Mexico. Aguilar speaks limited English and testified through a translator at his hearing. He can read Spanish but not English. Aguilar, in the words of the Commission, is "a Mexican National and has resided illegally in the United States since approximately 1986." He completed the fifth grade in Mexico and does not appear to have had any additional schooling. Aguilar is married. The couple has two daughters, the eldest of whom has cerebral palsy and is seriously disabled.[1]

         Aguilar primarily worked as a manual laborer, including agricultural work, ranch work, and, for the last fifteen to sixteen years prior to the injury giving rise to this claim, concrete and cement work. During this latter line of employment, Aguilar sustained multiple back injuries. In 1999, Aguilar injured his back in a vehicular accident when the company vehicle in which he was riding was rear-ended. He subsequently filed a worker's compensation claim for the injuries he sustained. In 2002, Aguilar strained his back removing a stuck jackhammer. On December 11, 2006, Aguilar suffered another low back injury while screeding concrete.[2] Following this latter injury, Aguilar was diagnosed with degenerative disc disease and a disc herniation at the L4-5 level of his spine. He was treated with epidural steroid injections and anti-inflammatory medications without significant relief. Because he was unable to get his pain to abate, he underwent back surgery, which was performed by Miers Johnson, III, M.D. The surgery resulted in the fusion of the L4-5 level of Aguilar's spine. (This surgery will be referred to as the L4-5 fusion or first surgery.)

         After this first surgery, on July 10, 2008, a Functional Capacity Evaluation (FCE) was performed, and Aguilar was given a light physical demand classification, which restricted him to occasionally lifting seventeen pounds. Although Dr. Johnson had previously imposed various work restrictions, on July 7, 2009, (almost a year following the FCE) he imposed a twenty-pound lifting limitation on Aguilar. This restriction was related to Aguilar's diagnosis of "degeneration of lumbar intervertebral disk." Notwithstanding his medical restrictions, Aguilar testified at the hearing that he could lift and move his disabled daughter, once he recovered from the first surgery.

         On August 21, 2008, Aguilar filed a second worker's compensation claim seeking benefits as a result of his injury in 2006 and the resulting surgery. Aguilar alleged he was totally and permanently disabled. On July 22, 2009, Aguilar entered into a Lump Sum Agreement with his two previous employers and the Idaho State Insurance Fund[3] to settle his worker's compensation claims for both the 1999 and 2006 accidents. The lump sum payment compensated Aguilar for "permanent partial lifetime disability." On August 5, 2009, the Industrial Commission approved the Lump Sum Agreement. The Agreement approved by the Commission awarded Aguilar benefits for less than total, permanent disability.

         Aguilar claimed that his back felt fine as early as September 25, 2009, notwithstanding his earlier injuries and worker's compensation claims. On April 11, 2010, Aguilar began working part time for Gail Ansley at CA Bull Elk Ranch. Aguilar later took up full-time concrete work for Lowry Excavation and Concrete, Inc. (Lowry Excavation), on June 3, 2010.

         On December 9, 2010, Aguilar hurt his lower back working at CA Bull Elk Ranch when he tripped and fell backwards while attempting to move a 55-gallon barrel. As a result, Aguilar was diagnosed as having sustained a "[l]umbar strain with sacral contusion." After conservative treatment, Brian Johns, M.D., discharged Aguilar on January 20, 2011, at "maximum medical improvement." Dr. Johns did not anticipate any permanent impairment, and removed a thirty-pound lifting restriction. Aguilar testified that he could still lift and move his disabled daughter after this injury. As a result of this injury in 2010, Aguilar filed a worker's compensation claim.

         Aguilar hurt his lower back once again on October 3, 2011, while working for Lowry Excavation when he tried to lift a lodged jackhammer. (The injury of October 3, 2011, will be referred to as the second or subsequent injury.) Aguilar testified that the jackhammer weighed between eighty and ninety pounds. At the time of the injury, Aguilar experienced pain down both legs and into his feet.

          Following physical therapy and other conservative treatment that did not resolve Aguilar's pain, he underwent an MRI. In analyzing that study, Cameron Evans, M.D., stated that "[t]here is multilevel degenerative disk disease throughout the lumbar spine, worst at the L3-L4 level, above the fused segment." On January 25, 2012, Aguilar underwent an epidural steroid injection at L3-4 without significant relief. Consequently, on February 13, 2012, Samuel Jorgenson, M.D., "recommended surgical intervention in terms of an L3-L4 laminectomy, discectomy, and fusion." He also wrote "[t]he fusion is required since it is adjacent to an existing fusion and as a consequence of the expected increase stress at the L3-L4 level."

         After the recommendation for surgery, the Idaho State Insurance Fund, Lowry Excavation's surety, sought a second opinion from David B. Verst, M.D. Following that independent medical exam, Dr. Verst recommended surgery but suggested that the 2011 jackhammer incident was not the reason Aguilar needed a second surgery.

         Dr. Jorgenson disagreed with Dr. Verst's opinion that the second injury was not the cause of Aguilar's need for a second surgery. In spite of their initial disagreement, both doctors ultimately agreed that an underlying condition had been aggravated by the second injury and that compensable surgery was appropriate. Dr. Verst wrote "that the injury that occurred on 10/03/11 aggravated an underlying advanced degenerative condition." Dr. Jorgenson stated that Aguilar's "symptoms are best categorized [as] an aggravation of an existing pathology at the L3-L4 level."

         On May 4, 2012, Aguilar filed his original worker's compensation complaint against Lowry Excavation and the State Insurance Fund. Shortly thereafter, on May 15, 2012, Dr. Jorgenson performed surgery on Aguilar. Dr. Jorgenson removed the implant at L4-5 and replaced it with a posterior lumbar interbody fusion and PEEK interbody cage, as well as pedicle screw instrumentations at L3, L4, and L5. (This surgery will be referred to as the second or subsequent surgery.) Following the second surgery, Aguilar continued to experience back and leg pain. Due to Aguilar's ongoing pain, multiple diagnostic images were taken and a CT myelogram of the lumbar spine was performed on November 19, 2012. That study found "mild to moderate degenerative changes" at the L2-3 level, adjacent to the extended fusion. The final impression noted in that study was "postoperative and degenerative change of the lumbar spine" and L2-3 degenerative change. Aguilar also completed post-operative physical therapy and had epidural steroid injections with minimal to no improvement in his symptoms.

         Aguilar was next involved in a car accident in December of 2012, and again saw Dr. Jorgenson due to increased back pain. Dr. Jorgenson, R. Tyler Frizzell, M.D., and Nancy Greenwald, M.D., all agreed that the car accident was not a substantial factor in Aguilar's symptoms and that his ongoing symptoms were a result of the second injury. In contrast, Kenneth Little, M.D., found that Aguilar's "aggravated back pain and new left leg radicular symptoms radiating into his calf" were due to the car accident. However, he also concluded Aguilar's "residual back pain and his left anterior thigh parathesis (without motor deficits) [we]re directly related to the October 3, 2011, industrial injury . . . ."

         On July 12, 2013, Dr. Jorgenson wrote, "Mr. Aguilar is currently not working as a consequence of his ongoing symptoms. At this time, he is limited to light duty capacity only with alteration [sic] between standing and sitting with no significant bending, lifting, or twisting." In 2013, almost a year after the second surgery, Aguilar began attempting new lines of work. He tried three different jobs (landscaping, janitorial, and truck driving) but could not last more than a few hours at any of them. Aguilar testified that following the second injury he could no longer lift or move his daughter.

         On January 17, 2014, Aguilar filed another worker's compensation claim, adding the ISIF as a defendant to his claims against Lowry Excavation and the State Insurance Fund. On July 22, 2015, the Commission held a hearing regarding Aguilar's claims against Lowry, the State Insurance Fund, and the ISIF. Aguilar was the only witness who testified.

         On October 19, 2015, Aguilar, Lowry Excavation, Gail Ansley (Aguilar's employer at CA Bull Elk Ranch), and the State Insurance Fund[4] filed a Lump Sum Agreement to settle Aguilar's claims for his 2010 and 2011 industrial accidents. The ISIF was not a party to that agreement. On that same day, the Commission approved the Lump Sum Agreement and dismissed Aguilar's claims against all parties except the ISIF. Aguilar's claim against the ISIF continued with the taking of two post-hearing depositions of rehabilitation specialists, Delyn Porter, M.A., and John Janzen, Ed.D. Following the depositions, the parties submitted post-hearing briefs. On October 13, 2017, the Commission issued its Findings of Fact, Conclusions of Law and Order (Commission's Order). In it, the Commission rejected Aguilar's claim against the ISIF.

         In denying Aguilar's claim, the Commission drew a number of conclusions related to Aguilar's pre-existing impairments. First, the Commission found that Aguilar was totally and permanently disabled as of the hearing, as an "odd-lot" worker. The Commission also found that Aguilar had a number of pre-existing impairments that were manifest as of the injury of October 3, 2011. Those pre-existing impairments and their corresponding impairment ratings were as follows: lower back issues, 19%; hypertension, 17%; right eye deficit, 15%; depression, 5%; and diabetes, 10%. The Commission further found that Aguilar's hypertension, right eye deficit, and lower back issues were all subjective hindrances to his employability prior to the injury of October 3, 2011. Aguilar's depression and diabetes were not considered to be subjective hindrances to his employment.[5] Additionally, the Commission determined that the hypertension and right eye deficit were "vocationally irrelevant in view of [the] conclusion that ...

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