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Moser v. Rosauers Supermarkets, Inc.

Supreme Court of Idaho

May 15, 2019

MIRANDA MOSER, Claimant-Appellant,
v.
ROSAUERS SUPERMARKETS, INC. Employer, Defendant-Respondent.

          Appeal from the Industrial Commission of the State of Idaho.

         The decision of the Industrial Commission is affirmed.

          Goicoechea Law Offices, Lewiston, Attorneys for Appellant. Michael T. Kessinger argued.

          Gardner Law Office, Boise, Attorneys for Respondent. Michael G. McPeek argued.

          BEVAN, Justice

         I. Nature of the Case

         Miranda Moser appeals an Idaho Industrial Commission ("Commission") order on her petition for declaratory ruling that considered whether an employer could compel an injured worker to attend an Idaho Code section 72-433 medical examination without first establishing that the worker is in the period of disability. The Commission held that following the claim of an accident, injury, or occupational disease, an employer may require a claimant's attendance at such a medical examination. We affirm.

         II. Factual and Procedural Background

         On October 9, 2016, Moser dislocated her right shoulder when she lifted a 24-pack of soda while working as a cashier for Rosauers Supermarkets, Inc. ("Rosauers"). Rosauers accepted the claim even though Moser had a pre-existing history of recurrent instability of her right shoulder. On November 16, 2016, Moser underwent shoulder surgery. After surgery, Moser continued to suffer from "pseudosubluxation" and her surgeon, Dr. Adam Jelenek, recommended she receive a second opinion from a physician in Seattle. Rather than authorizing the request for referral, Rosauers arranged for Moser to be evaluated by Dr. Michael Ludwig who opined that Moser's shoulder dislocation likely resulted from her pre-existing condition. On September 8, 2017, Dr. Ludwig concluded that Moser had returned to her pre-injury baseline and that she did not require any further medical care. Moser was given an 11% upper extremity impairment apportioned entirely to Moser's documented pre-injury condition.

         On January 3, 2018, Moser filed a workers' compensation complaint that raised these issues:

1. Entitlement to medical care;
2. Entitlement to temporary total disability;
3. Extent of permanent partial ...

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