Jordan v. Dean Foods

• Citation: 160 Idaho 794,379 P.3d 1064
• Decision Date: 09 September 2016
• Docket Number: Docket No. 43281
• Court: United States State Supreme Court of Idaho
• Parties: Edward JORDAN, Claimant–Appellant, v. DEAN FOODS, Employer; ACE Insurance; and Indemnity Insurance Company of North America, Sureties, Defendants–Respondents.

160 Idaho 794
379 P.3d 1064

Edward JORDAN, Claimant–Appellant,
v.
DEAN FOODS, Employer; ACE Insurance; and Indemnity Insurance Company of North America, Sureties, Defendants–Respondents.

Docket No. 43281

Supreme Court of Idaho, Boise, May 2016 Term.

Filed: September 9, 2016

Goicoechea Law Offices, Chtd., Boise, for appellant. Justin P. Aylsworth argued.

Bowen & Bailey, LLP, Boise, for respondents. Scott Wigle argued.

HORTON, Justice.

160 Idaho 795

This is an appeal from a decision of the Industrial Commission (the Commission) finding that Edward Jordan failed to prove entitlement to additional benefits for accidents that occurred during his employment. The Commission based its decision, in part, on a finding that Jordan failed to prove that the need for his 2012 cervical spine surgery was caused by a 2010 accident that occurred while Jordan was working as a milk delivery driver for Dean Foods. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Jordan served over twenty-one years in the Navy, retiring in 2003. While in the

379 P.3d 1066

160 Idaho 796

Navy, Jordan was never assessed with a service-related disability involving his cervical area.¹ After retiring from the Navy, Jordan and his wife moved to Boise, and he started working for Dean Foods as a milk delivery driver.

On May 16, 2006, Jordan suffered an injury while trying to move a stack of milk containers (the 2006 accident). Jordan testified he experienced a sudden onset of pain in his neck and shoulders along with numbness extending down his arms. He notified a supervisor after he dropped a gallon of milk due to the numbness. Jordan sought treatment for neck, cervical, and radiculopathy symptoms. He had an MRI on May 25, 2006 (the 2006 MRI), which showed disk degeneration in Jordan's cervical spine and a disk bulge at C4–5. Jordan's symptoms lessened over the course of about four months of treatment, and Jordan was diagnosed with muscle strain and carpal tunnel syndrome. After Jordan's symptoms subsided, he was not assigned any permanent work restrictions, and he resumed his normal job activities.

On January 12, 2010, Jordan was working in the Dean Foods yard using a dolly to hook up trailers when he again experienced the sudden onset of pain in his neck and shoulders along with numbness in his arms (the 2010 accident). The injury resulted in four doctor visits (January 12, January 25, February 4, and February 16), several physical therapy sessions, and a lidocaine injection to Jordan's mid-back. Notes from Jordan's second doctor visit indicate that by January 25, 2010, he represented that "his neck is no longer giving him problems." Jordan was eventually discharged by phone. His discharge notes state that he was asymptomatic and tolerating normal activity and work on March 22, 2010.

Jordan's next documented complaint about his neck occurred on July 26, 2011, when Jordan visited his family physician, Dr. Michael Foutz. The visit primarily concerned low back and knee problems. Notes from the visit indicate Jordan also was experiencing: "Neck pain which is [static] in nature—no better or worse."

On August 18, 2011, Jordan was evaluated by an orthopedic surgeon, Dr. Timothy Doerr, who noted:

Edward is a 47-year-old gentlemen who comes in today with several complaints. The first is a known history of axial neck pain that he reports has been going on for several years. He reports that he had an industrial injury about six years ago, at which time he began having pain radiating in the right greater than left arms. He had neck pain prior to this injury but no arm pain prior to the injury. He was treated with physical therapy but his symptoms never [fully] resolved. He has had some generalized weakness, as well as some numbness in both hands, which he was told at the time of his work comp evaluation, was secondary to carpal tunnel syndrome.

Dr. Doerr attributed Jordan's neck issues to the 2006 accident, reasoning: "Given that he reports that he had no radicular arm symptoms prior to his industrial injury of 2006 it appears that this may be related to his previous industrial injury." Dr. Doerr ordered an MRI, which was taken on August 23, 2011 (the 2011 MRI). The radiologist compared the 2011 MRI results with those from the 2006 MRI and concluded there was further degeneration in Jordan's cervical spine. On September 15, 2011, Dr. Doerr followed up with Jordan after the 2011 MRI and recommended a C4 to C6 cervical decompression and fusion. Dr. Doerr again attributed the need for the surgery to the 2006 accident, noting:

Edward has a six year history of symptoms since an industrial injury on 05/16/06 which has been unresponsive to activity modifications, physical therapy and oral steroids. He had an MRI of the cervical spine on 08/23/11 that revealed broad-based disc/osteophyte at C4–5 and C5–6 resulting in mild cord compression with severe right greater than left foraminal

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160 Idaho 797

narrowing at C4–5 and severe bilateral C5–6 foraminal narrowing.... Having failed six years of conservative treatment, he is electing for surgical decompression. I think that his best option would be a C4 to C6 cervical decompression and fusion. I have reviewed Edward's previous records from his previous industrial injury on 05/16/06. He had symptoms documented consistent with his current symptoms of neck pain with [predominantly] right arm radicular symptoms on his initial evaluation on 05/17/06 as well as subsequent evaluations on 05/25/06 and 06/02/06. Occupational Health Services on 07/24/06 documented that he had not had any tingling or similar radicular symptoms in his arm prior to the initial industrial injury. The patient reports that his symptoms never ever completely resolved and he was again seen at Occupational Health Services on 01/12/10 with similar [predominantly] right arm radicular complaints. Edward had an MRI of the cervical spine on 05/25/06, which is compared to the most recent MRI. The MRI on 05/25/06 revealed moderate size central disc protrusion at C4–5 with extradural defect on the cord. In addition, there was some right moderate foraminal narrowing at the C5–6 level. Although there has been some progressive degeneration since the MRI on 05/25/06, the patient's symptoms appear to be clearly related to this industrial injury, therefore I believe that it is medically more probable than not that his need for C4 to C6 anterior cervical decompression and fusion is directly related to his industrial injury of 05/16/06.

On September 27, 2011, Dr. Doerr wrote a letter to a third-party claims administrator, seeking authorization to perform surgery and detailing Jordan's cervical spine radiculopathy symptoms beginning in 2006. Dr. Doerr stated: "Although there is some progressive degeneration since the MRI on 05/25/06, the patient's symptoms appear clearly related to his industrial injury and I believe medically more probable than not his need for a C4 to C6 anterior cervical decompression and fusion is related to his industrial injury of 05/16/06."

Dr. Doerr later changed his opinion. On November 17, 2011, Dr. Doerr wrote a letter in which he asserted that Jordan's neck pain and radiculopathy were initially caused by the 2006 accident and then permanently aggravated by the 2010 accident. Dr. Doerr wrote:

I have been treating Edward for C4 to C6 stenosis with neck pain and right greater [than] left arm radiculopathy. Edward had an industrial injury on 05/16/06, which resulted in neck pain with [predominantly] right arm radicular symptoms. He was then treated nonoperatively and had a second injury on 01/12/10, at which time he was moving a very heavy dolly and had onset of neck pain radiating into his right shoulder with numbness down into his right hand.

In summary, I do believe that Edward's initial injury on 05/16/06 resulted in his C4–5 and C5–6 injuries causing neck pain with radiculopathy. His 01/12/10 injury resulted in a traumatic event with permanent aggravation of his initial preexisting injury. I have recommended a C4 to C6 anterior cervical decompression and fusion.

The record contains no explanation for Dr. Doerr's changed opinion.

In response to Dr. Doerr's suggestion that Jordan undergo surgery, the adjuster handling Jordan's claim scheduled an Independent Medical Examination (IME) by Dr. Robert Friedman. Dr. Friedman is a M.D. who specializes in physical medicine and rehabilitation. Based upon a December 22, 2011, IME, Dr. Friedman concluded that Jordan's symptoms were more probably than not related to preexisting degenerative cervical arthritis that was unrelated to the 2006 and 2010 accidents. Dr. Friedman based his opinion on his examination of Jordan and a review of Jordan's medical records, including the 2006 and 2011 MRIs. He explained that the disk degeneration in Jordan's cervical spine was consistent with ongoing degeneration rather than an acute injury.

On June 6, 2012, Jordan underwent surgery on his cervical spine at C4–5, C5–6, and C6–7. Jordan recovered from the surgery without...