Tenny v. Loomis Armored United States, LLC

• Court: Idaho Supreme Court
• Writing for the Court: STEGNER, Justice.
• Citation: Tenny v. Loomis Armored United States, LLC, 168 Idaho 870, 489 P.3d 457 (Idaho 2021)
• Decision Date: 22 June 2021
• Docket Number: Docket No. 48100
• Parties: Steve R. TENNY, Claimant-Respondent, v. LOOMIS ARMORED US, LLC, Employer; and ACE American Insurance Co., Surety, Defendants-Appellants.

168 Idaho 870

489 P.3d 457

Steve R. TENNY, Claimant-Respondent,

v.LOOMIS ARMORED US, LLC, Employer; and ACE American Insurance Co., Surety, Defendants-Appellants.

Docket No. 48100

Supreme Court of Idaho, Boise, May 2021 Term.

Opinion Filed: June 22, 2021

Hawley Troxell, Boise, for appellant, Loomis Armored US, LLC. Mindy M. Muller argued.

Monroe Law Office, Boise, for respondent, Steve R. Tenny. Darin G. Monroe argued.

STEGNER, Justice.

This is an appeal from a decision of the Idaho Industrial Commission. In December 2014, Steve Tenny (Tenny) sustained a right-sided lumbar disc herniation injury during the course of his employment with Loomis Armored US (Loomis). He immediately began treatment, receiving a series of right-sided steroid injections in his back at L3-4. At some point shortly after the second injection, Tenny began to complain of increasing left hip and groin pain and underwent testing and treatment for these symptoms. However, the worker's compensation insurance surety, Ace American Insurance Co., ultimately denied payment for treatment related to the left-side groin pain. Following the matter going to hearing, the Referee recommended that the Industrial Commission find that the left-sided symptoms were causally related to Tenny's December 2014 industrial accident. The Industrial Commission adopted the Referee's findings, and after unsuccessfully moving for reconsideration, the employer and surety (which will be jointly referred to as the Defendants) appealed to this Court. At issue is the question of causation: Was the left-side groin pain experienced by Tenny causally related to his industrial accident? For the reasons set out below, we affirm the decision of the Industrial Commission.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

Tenny worked for Loomis as a driver, also known as an "armored service technician" (AST). On December 2, 2014, Tenny was pushing a pallet loaded with ore when he felt "a sharp shock" in his lower back. Within a few hours his pain and discomfort increased, and he presented at an urgent care facility with symptoms of radiating pain down his right leg to his toes. Tenny was referred for an MRI of his lumbar spine, which revealed that he had a right asymmetric disc extrusion at L3-4, with moderate to severe stenosis. In other words, Tenny had a disc herniation on the right side with moderate to severe narrowing of the spinal canal.

On December 22, 2014, Tenny received a right-sided epidural steroid injection (ESI) at L3-4. On January 8, 2015, Tenny received a second ESI in the same location. However, after the second injection, Tenny began to experience pain and discomfort in his left hip and groin. According to Tenny and his wife, this pain began immediately during the injection, while the handwritten notations on a diagnostic "block sheet" indicate that his left hip pain "[b]ecame very uncomfortable a few hours" after the injection. Tenny later testified that he told the individual performing the injection that he felt "pain in the deep part of" his left groin, but that he was told "it was impossible" because they were not injecting that area. When Tenny's wife testified, she corroborated Tenny's testimony that he had told her about the left-sided pain immediately after the injection, although she was not present during the injection.

Tenny's pain levels in his left groin increased in intensity over the next few days, and several weeks after the second injection he was referred to a neurological surgeon, Dr. Michael Hajjar. Dr. Hajjar ordered a new lumbar MRI, which was consistent with the prior scans. Dr. Hajjar then sent Tenny for a bilateral lower extremity nerve conduction study, which found normal results without any obvious neurological or neuropathic issues. Seeking to rule out this pain's relation to Tenny's previous left hip replacement which he underwent in January 2014, Dr. Hajjar advised Tenny to visit his prior surgeon, Dr. Roman Schwartsman. Tenny was referred by Dr. Schwartsman for x-rays of the hip and pelvis. Upon review of those images, Dr. Schwartsman concluded that the left hip replacement was not the cause of Tenny's pain.

Dr. Hajjar recommended back surgery, which Tenny underwent on April 6, 2015. Although Tenny's disc herniation was on the right side, Dr. Hajjar performed a bilateral surgery at L3-4, which included a microdiscectomy and decompression. As Tenny recovered from the surgery, he found that his right-sided back pain had resolved; however, the left hip and groin pain had not. Tenny underwent a CT scan of the pelvis, showing no pathological findings in the left-sided musculature.

Dr. Hajjar concluded that the back symptoms had resolved; however, because of the lingering left-sided groin and hip pain, he suggested pain management, and referred Tenny to Dr. Christian Gussner, a physician focused on physical medicine and pain medicine.

Dr. Gussner identified several possible sources for the incessant left-sided hip and groin pain, including an inguinal hernia, bursitis of the hip, or something related to Tenny's recent surgery. Dr. Gussner referred Tenny to a specialist for evaluation of a possible hernia.

On September 2, 2015, Dr. Gussner gave Tenny two steroid injections into the bursae of his left hip, but Tenny reported no relief in either injected area. By this time, Tenny had been evaluated by a specialist for a possible hernia, but no hernia was found. Suspecting that the pain was related to the prior left hip replacement or to opioid-induced hyperalgesia,¹ Dr. Gussner referred Tenny back to Dr. Schwartsman and advised Tenny to taper off opioid medication.

Tenny again visited Dr. Schwartsman. Dr. Schwartsman ordered a repeat MRI of the lumbar area to look for L3-4 pathology that would explain his symptoms. He also referred Tenny to a neurosurgeon, Dr. R. Tyler Frizzell.

On October 6, 2015, Tenny visited Dr. Frizzell for the first time. Dr. Frizzell ordered an intrathecal lumbar CT, but its results did not reveal anything that would account for Tenny's symptoms. Dr. Frizzell noted that Tenny's pain "may be related to some of the peripheral nerves innervating" the left groin. At this point, Dr. Frizzell referred Tenny to Dr. Sandra Thompson for further evaluation and pain management.

Tenny visited Dr. Thompson at The Pain Center for the first time in November 2015, and would continue to be treated by her for several years. Dr. Thompson took several approaches to managing Tenny's pain, including oral medication and transdermal medication. When these methods failed to work, Dr. Thompson referred Tenny to Dr. Calhoun, a psychiatrist, to determine if Tenny was a candidate for a pain pump, a surgically implanted dispenser that delivers pain medication straight to the spinal fluid.² In April 2016, Tenny underwent a trial with an intrathecal pain pump. As a result of that procedure, a permanent intrathecal pain pump was placed two weeks later. Both Dr. Thompson and Tenny testified that the pain pump stabilized his pain levels without the adverse side effects accompanying oral or topical pain medication, although the left-sided groin pain has never resolved.

In December 2016, Tenny underwent an independent medical examination (IME) with Dr. Rodde Cox. Dr. Cox noted that it would be reasonable to order an MRI of the pelvis "to evaluate for any soft tissue structures that could be contributing such as an iliopsoas bursa." Dr. Cox's conclusion at that time was that "to a reasonable degree of medical certainty, there is causal relationship between [Tenny's] back and leg complaints and the reported injury" on the job.

On January 4, 2017, an MRI of the pelvis without contrast was performed. This MRI revealed "small to moderate left iliopsoas bursitis." Dr. Cox subsequently amended his IME to reflect that his medical opinion was that Tenny's pain was caused by left-sided bursitis, which was not caused by Tenny's December 2014 injury.

Although the Surety initially paid for Tenny's treatment, after Dr. Cox's IME was updated, the Surety concluded that Tenny was at maximum medical improvement and denied the remainder of his claim for medical treatment related to the left-sided hip pain. The Surety contended that Tenny's left-sided hip pain was not related to his on-the-job injury.

B. Procedural History

On January 16, 2019, a hearing was conducted by Industrial Commission Referee Powers. The parties also submitted post-hearing briefs and conducted post-hearing depositions of Tenny's treating doctors. Referee Powers retired before a recommendation was issued and he was replaced by Referee Harper pursuant to a stipulation of the parties. Referee Harper considered the evidence submitted and rendered a recommended disposition. In sum, Referee Harper considered the depositions of

1. Tenny, taken April 13, 2017;

2. Dr. Cox, taken March 12, 2019;

3. Dr. Frizzell, taken February 28, 2019;

4. Dr. Gussner, taken March 11, 2019;

5. Dr. Hajjar, taken March 14, 2019; and

6. Dr. Thompson, taken March 6, 2019.

Referee Harper also considered the testimony of Tenny, his wife Kristi, and Tenny's nurse case manager which was elicited at the hearing. Additionally, Referee Harper considered the exhibits consisting of Tenny's treatment records. Finally, Referee Harper considered Claimant's Exhibit A, which consisted of the case manager's notes.

Referee Harper characterized "[t]he question for resolution" as "whether [Tenny's] ongoing left-sided hip/groin pain is causally related to his industrial accident, including whether it is a compensable consequence of medical treatment provided to him for his accepted work injury." Referee Harper summarized the evidence presented, first noting that Dr. Frizzell and Dr. Thompson had provided medical opinions as to causation that were favorable to Tenny, i.e., that the second ESI caused nerve root dysfunction that resulted in pain into the left groin region. Dr. Frizzell's opinion focused on the potential for L3-4 radiculopathy to correspond with...