Sevy v. SVL Analytical, Inc.
| Decision Date | 22 December 2015 |
| Docket Number | No. 41994.,41994. |
| Citation | 364 P.3d 279,159 Idaho 578 |
| Court | Idaho Supreme Court |
| Parties | Kelli SEVY, Claimant–Appellant, v. SVL ANALYTICAL, INC., Employer; Idaho State Insurance Fund, Surety; State of Idaho, Industrial Special Indemnity Fund, Respondents. |
Starr Kelso Law Office, Chtd., Coeur d'Alene, for appellant. Starr Kelso argued.
H. James Magnuson, Coeur d'Alene, for respondents SVL Analytical, Inc. and Idaho State Insurance Fund.
Jones, Brower & Callery, PLLC, Lewiston, for respondent State of Idaho, Industrial Special Indemnity Fund. Thomas Callery argued.
Kelli Sevy appeals from a decision of the Industrial Commission (the Commission). Sevy sustained a work-related injury on October 31, 2006, and contends that she is totally and permanently disabled. The Commission found that Sevy failed to meet her burden of establishing total and permanent disability. Although the Commission found that Sevy was "profoundly disabled," the Commission held that Sevy had failed to demonstrate that the accident contributed to her disability beyond a 2% permanent partial impairment (PPI). Sevy contends that the Commission's decision that she did not suffer disability in excess of her impairment is not supported by substantial and competent evidence. We affirm.
Sevy was born in 1963 and lives in Idaho's Silver Valley. Sevy does not have a GED. She has worked at a number of different jobs over the years: gas station attendant with limited cashiering responsibilities, food server, dishwasher, and casino positions selling change and dealing blackjack. Beginning in 2004, Sevy was employed by SVL Analytical (SVL) working in the "bucking room," where she prepared soil samples. This job involved lifting and moving buckets and bags of soil and other samples.
Sevy had suffered a number of injuries prior to the industrial accident giving rise to this appeal. When she was seventeen, Sevy injured her shoulder in an automobile accident. This injury has caused her discomfort that comes and goes. In 2000, Sevy suffered a T12 compression fracture
as a result of a sledding accident.
In August of 2004, Sevy fell from a scooter and suffered an L2 compression fracture
. On September 19, 2004, Dr. Glenn Keiper performed kyphoplasty, which involves injecting cement into the vertebral body to stabilize the fracture. However, the procedure did not relieve Sevy's pain. Dr. Keiper opined that a disc bulge and degenerative disc disease at L4–5 might be causing Sevy's chronic pain symptoms, including low back and leg pain, numbness, and tingling. Sevy returned to her job in the bucking room. However, due to pain, she changed the way she performed her job. She obtained assistance from other employees, and, rather than lifting heavy items, she would slide them across the floor, frequently using a stick with a hook to drag an item.
Dr. Jeffrey Larson took over Sevy's care in 2005 and, following an MRI, found a small portion of extruded cement attached to a portion of her spine at L2, which likely contributed to Sevy's pain. In May of 2006, Sevy returned to Dr. Larson presenting with increasing neck pain, shoulder numbness and tingling, and bilateral arm symptoms. Dr. Larson concluded that she suffered from degenerative disc disease
at C5–6 in her neck and recommended a cervical discectomy and fusion at C5–6. Around this time, Sevy began doing lighter duty work in shipping and receiving at SVL working with lighter samples and entering information into the computer.
Sevy underwent the cervical discectomy
and fusion at C5–6 on May 15, 2006. Sevy returned to work at SVL following the fusion where she worked on light-duty, mostly checking in light-weight samples and entering data into a computer.
SVL allowed its employees to bring their dogs to work. On October 31, 2006, five months after her fusion at C5–6, Sevy tripped over a co-worker's dog and fell, hitting her head on the floor. Two weeks later, Sevy sought medical care from Dr. Larson. Dr. Larson reported that Sevy had "some pain in her neck that progressed and now she has continuous pain in her neck and muscle spasms with movement of her neck...." Dr. Larson ordered a CT scan
, which showed that the fusion at C5–6 was fractured.
Dr. Larson recommended a revision of the fusion. Following the October 31, 2006, industrial injury, Sevy temporarily returned to work at SVL for a few hours a day doing light-duty work involving labeling samples and paperwork. A revision of the C5–6 fusion was performed on January 19, 2007. At a follow-up appointment on April 24, 2007, Sevy indicated that her neck felt heavy and she continued to have muscle spasms, difficulty lifting heavy objects, and continued knee pain from an earlier injury. She informed Dr. Larson that she was not able to return to work. In his notes, Dr. Larson stated:
Sevy eventually did return to light-duty work in May of 2007, working four hours a day with a twenty to forty pound lifting restriction. On June 4, 2007, SVL indicated that Sevy was to return to working full-time, however Sevy indicated that she was not feeling well and that she had renewed pain in her neck and shoulders. On June 5, 2007, Sevy returned to Dr. Larson, reporting neck pain, pain radiating to her left arm, numbness in her right arm, pain in her left collar bone, and pain in and both shoulders. Sevy told Dr. Larson that she had been "doing fine at work" as coworkers could help her lift buckets of soil. Based on her continued pain, on June 11, 2007, Dr. Larson indicated Sevy could perform light-duty work with the restriction that she was not to lift more than eight pounds. On June 14, 2007, SVL informed Sevy that no light-duty work was available with the new restrictions assigned by Dr. Larson.
On July 10, 2007, Dr. Larson recommended a functional capacity evaluation to more completely determine the nature of work restrictions that should be imposed. Dr. Larson indicated Sevy
On August 1, 2007, Mark Bengtson, MPT, performed the recommended functional capacity evaluation. Bengtson identified significant limitations in Sevy's ability to perform overhead work, lift more than forty-five pounds, and her need to frequently change positions when seated. Bengtson concluded that Sevy demonstrated functional limitations related to her pre-existing thoracic and lumbar spine condition. Bengtson noted Sevy reported pain throughout her cervical spine. Although Bengtson clearly identified limitations and restrictions related to Sevy's cervical spine condition, he did not proffer an opinion as to the extent which Sevy's cervical spine limitations were referable to the industrial accident as opposed to her preexisting condition. Ultimately, Bengtson concluded that Sevy could not work at SVL and he recommended light or sedentary work.
On October 3, 2007, at the instance of the State Insurance Fund, Sevy saw Dr. Craig Stevens for an independent medical evaluation. Dr. Stevens concluded that "[t]he incident of October 31, 2006, and subsequent surgery of January 19, 2007, will not result in permanent work restrictions." While her functional capacity evaluation did identify a lifting limitation, Dr. Stevens noted that the restriction was based on the entirety of her lumbar and thoracic conditions, not specifically her cervical condition. Thus, Dr. Stevens concluded there are "[n]o restrictions" which are "pertinent to her cervical condition."
Dr. Stevens concluded that Sevy has a "10% whole person impairment; modified upward ... for her 2nd cervical fusion to yield a total diagnosis-based impairment of 12% of the whole person." This represented 10% whole person permanent impairment prior to her industrial injury and "the increment in her impairment as a result of the injury and subsequent 2nd surgery upon her cervical spine is determined to be 2% of the whole person." Dr. Stevens based the increased impairment rating on Table 15–7 of the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, which provides for a 2% upward adjustment of the impairment rating in instances of a repeat cervical fusion.
Sevy stopped working for SVL on October 12, 2007. Sevy filed her worker's compensation complaint on April 11, 2008. As the claim progressed, Dr. Larson wrote on March 9, 2009, that
From July of 2010 through April of 2011, Sevy worked for the Idaho Child Care Program (ICCP) providing child care for her three young grandchildren. She was paid between $1,200 and $1,300 per month. Aside from her employment with ICCP, Sevy was unable to secure employment.
On November 17, 2011, at the invitation of SVL, Dr. Nancy Collins evaluated Sevy. Dr. Collins concluded, Dr. Collins continued, When evaluating...
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Smith v. State
...claimant to prove that his medical impairment and non-medical factors caused him to become 100% disabled. Sevy v. SVL Analytical, Inc. , 159 Idaho 578, 585, 364 P.3d 279, 286 (2015). The second way is the odd-lot worker method, which requires a claimant to prove that they "are so injured th......