Davidson v. Riverland Excavating, Inc.

• Decision Date: 29 May 2009
• Docket Number: No. 34626-2007.,34626-2007.
• Parties: Chet DAVIDSON, Claimant-Appellant, v. RIVERLAND EXCAVATING, INC., Employer; State Insurance Fund, Surety; and State of Idaho, Industrial Special Indemnity Fund, Defendants-Respondents.
• Court: Idaho Supreme Court

209 P.3d 636

147 Idaho 339

Chet DAVIDSON, Claimant-Appellant, v. RIVERLAND EXCAVATING, INC., Employer; State Insurance Fund, Surety; and State of Idaho, Industrial Special Indemnity Fund, Defendants-Respondents.

No. 34626-2007.

Supreme Court of Idaho, Coeur d'Alene, April 2009 Term.

May 29, 2009.

Michael J. Verbillis, Coeur d'Alene, for appellant.

H. James Magnuson, Coeur d'Alene, for respondents Employer and Surety.

Jones, Brower & Callery, P.L.L.C., Lewiston, for respondent Industrial Special Indemnity Fund. Thomas W. Callery argued.

EISMANN, Chief Justice.

This is an appeal from the order of the Industrial Commission challenging the claimant's permanent impairment rating, the manner in which the Commission determined that he did not have disability in excess of impairment, the failure to award the claimant attorney fees, and the failure to retain jurisdiction. We affirm the order of the industrial commission.

I. FACTS AND PROCEDURAL HISTORY

In July 1999, Chet Davidson (Claimant) was employed by Riverland Excavating, Inc., (Employer) as a heavy equipment operator and mechanic helper. In November 1999, Claimant was assisting a mechanic working on a loader. The mechanic was called away, and Claimant attempted to reassemble the cab of the loader by himself. As he lifted the seat overhead to put it in the cab, the seat slipped from his hands and hit his head, bending his neck and knocking him to the ground. Claimant finished his work that day and continued working until December 30, 1999, when Employer shut down for the winter. Claimant reported his injury several days later and was referred to an immediate care facility. Eventually he was referred to a physician who saw him on February 4, 2000. That physician became his treating physician for this industrial accident.

Claimant's treating physician ordered x-rays and an MRI. Based upon the results of that imaging and his examination of Claimant, the physician diagnosed a disc herniation at C6-7, neural foraminal narrowing at C5-6, and a severe kyphosis at C5-6. He recommended a three-level anterior cervical discectomy and fusion at C4-5 and C6-7 with internal fixation. Surgery was scheduled and then cancelled because the State Insurance Fund (Surety) denied Claimant's claim. In March 2000, Surety reversed its denial.

Claimant had significant prior injuries. In the early 1970's, he suffered a lower back injury in a motor vehicle accident which ultimately required a spinal fusion. He competed in the rodeo circuit, and approximately two years later a bucking horse fell on him, reinjuring his lower back which necessitated a second surgery. In the mid-1970's, he had his kneecap torn off and splintered a bone in his left leg when a bull he was preparing to ride acted up while still in the metal chute. In 1976, while operating a scraper to make a road to a mine, he was thrown from the scraper and reinjured his lower back, requiring a third low back surgery. In the mid-1980's, he injured his right knee in a logging accident, which injury required surgery on his knee. During his years of competition on the rodeo circuit, he also suffered multiple shoulder separations and sustained fractures to his cheekbones, nose, jaw, wrist, foot, and shin.

In 1988, Claimant injured his neck while employed in the state of Washington. As result of that injury, he underwent an anterior cervical discectomy at C5-6 in March 1990. He had on-going pain complaints after the surgery and contended that he could not return to work. He was diagnosed with chronic pain syndrome and referred to a pain clinic, but he was uncooperative and left the clinic within a few days. He was offered vocational assistance, but insisted that he was unemployable and just wanted a settlement. He initially received a whole-person impairment rating of 10% for his cervical injury and 25% for mental impairment. He later attempted to reopen the proceeding, and it was ultimately settled by awarding him additional impairment for the cervical injury so that his cervical impairment totaled 25% of the whole person.

Surety retained a neurologist and an orthopedic surgeon to conduct an independent medical evaluation (IME) of Claimant, which was done on June 29, 2000. Both physicians submitted written reports. The neurologist stated that it was difficult to ascertain what injury Claimant sustained as a result of his 1999 accident. She stated that Claimant's condition was only partly due to the 1999 injury because of his prior discectomy and significant, pre-existing degenerative changes. She reported that Claimant's medical records revealed that he had significant pain behavior with apparent symptom magnification after the discectomy, but he implied to her that the surgery had an excellent outcome and he was thereafter asymptomatic. She expressed doubt as to whether further curative measures would be successful, but recommended further studies to identify whether Claimant had objective findings of a treatable condition.

The orthopedic surgeon did not examine Claimant because he wanted an audio recording of the examination and the surgeon required that any recording be by video. He reviewed Claimant's medical records and agreed that further studies should be done.

On August 7, 2000, nerve conduction studies were performed on Claimant, and they were entirely normal. Based upon those results, the neurologist and orthopedic surgeon recommended against performing surgery upon claimant because they thought it would be unlikely to alleviate his complaints. The reasons given were: (a) the lack of neurologic findings on physical examination or on electrical studies; (b) Claimant's history of significant pain behavior and symptom magnification; (c) inconsistencies between Claimant's statements and the medical records; (d) his three-pack-per-day smoking habit; and (e) the rather marginal success of three-level cervical fusions. They concluded that Claimant was medically stable and rated his impairment at 5% of the whole person based upon the aggravation of his pre-existing degenerative cervical condition.

In March 2001, Surety authorized the three-level fusion recommended by Claimant's treating physician. The surgery was scheduled, but because Claimant was incarcerated it was rescheduled to August 15, 2001. After the surgery, Claimant continued to complain of neck pain and loss of range of motion and insisted that he was unable to return to work. His treating physician ordered a CT scan, which did not show any evidence of neural element compression and showed the central canal as well as the neural foramina were widely patent at each level.

On June 8, 2002, Claimant had a second IME conducted by the neurologist who participated in the first IME and another orthopedic surgeon. At that IME, Claimant reported that his pain was the same as it had been before the surgery. The two physicians opined that Claimant's condition was due solely to the 1999 injury. They rated his impairment at 15% of the whole person and stated that Claimant could do light to medium work with a lifting restriction of 25 to 30 pounds on a regular basis. After reviewing the IME report, Claimant's treating physician agreed with the 15% whole person impairment rating but disagreed with the lifting restrictions, stating it should be 20 to 25 pounds. He also cautioned that there was no evidence that Claimant's fusion had been successful.

Claimant's treating physician discovered that the attempted fusion had been unsuccessful, and on July 10, 2003, he performed a revision of the prior C6-7 fusion. By September, Claimant's left upper extremity pain had improved, but he was experiencing pain in the right upper extremity and still had neck pain. He also developed a drooping right eyelid and small pupil on the right side, which his treating physician diagnosed as Horner's syndrome. He ordered an MRI, which ruled out an anatomic or pathological basis for the Horner's syndrome.

Claimant's pain symptoms continued. After the one-year follow-up examination on July 23, 2004, his treating physician determined that the second fusion had failed. On February 23, 2005, he performed a third fusion at C6-7 on Claimant. By August 2005, Claimant admitted to clear improvement in his condition, but he was still experiencing interscapular pain and stinging with some numbness and tingling in his upper extremities, bilaterally. Claimant's treating physician determined he was medically stable as of October 31, 2005, but he did not release Claimant to work at that time.

On January 6, 2006, Claimant had a third IME conducted by the neurosurgeon in Washington who had performed the discectomy on Claimant in 1990. He suggested that Claimant participate in a pain management program, but did not at that time rate Claimant's impairment because he was not yet fixed and stable.

On February 17, 2006, Claimant's treating physician saw him for his one-year follow up. He found that Claimant's condition was essentially unchanged since August 2005. He recommended that Claimant participate in a pain management program, but Claimant refused to do so. He also concluded that Claimant's Horner's syndrome was a direct result of his multiple cervical surgeries. X-ray films indicated that the final surgery had resulted in a successful fusion, but he ordered a CT scan to definitely assess whether it was.

The treating physician's chart notes and the results of the CT scan were provided to the neurosurgeon who had performed the 1990 discectomy. After reviewing them, he wrote a letter dated April 12, 2006, expressing his opinions. He agreed that if Claimant would not participate in a pain management program, there was no further curative treatment to offer and Claimant was fixed and stable. In his opinion, Claimant's impairment rating remained unchanged at 15% of the whole person. He further stated that Claimant could perform medium work, but should avoid work that required maintaining his head in a...