Idaho Law Blog
On December 9, 2016, Referee Michael E. Powers submitted his decision in Walker v. Clear Springs Food Company and Liberty Northwest Insurance Corporation. The claimant in this case suffered an accident on May 25, 2004. The first hearing in this case was held on January 25, 2007. The Claimant was awarded TTD benefits, a 13% whole person PPI rating and a PPD rating of 50% inclusive of her 13% PPI rating. A second hearing was held in the claimant’s case on September 11, 2015 in relationship to the same 2004 industrial accident. On this occasion, the claimant took the position that she had become totally and permanently disabled. Her Idaho Workers’ Compensation attorney argued that her treating physician, Dr. Verst, had abandoned her by failing to respond to her attorney or the surety. The claimant requested a change of physician under Idaho Code Section 73-432 (4) (a) which provides that a claimant may petition the Commission for an order allowing a change of physician under certain circumstances.
The Commission granted the claimant’s request and Dr. Hammond, a neurologist, became the claimant’s treating physician. Dr. Hammond testified in both proceedings and supported the claimant’s position that she was totally and permanently disabled. Dr. Hammond relied upon a functional capacity evaluation or FCE completed by Dr. Bryan Wright. Dr. Hammond testified that the FCE the claimant underwent shows the maximum that she could do at the time of the FCE, not what she is capable of doing (with much less on a daily workday basis). In other words, the FCE sets the top limits of the claimant’s abilities to lift, sit, and stand and under working conditions, the claimant’s abilities may be much less than Dr. Wright had set forth in his FCE. Dr. Hammond testified that any potential employer would need to make accommodations for the claimant’s physical restrictions, medication usage with significant side effects, and time off work as needed.
A separate FCE was conducted by STARS on February 12, 2015. Claimant objected to this introduction of this FCE and it was not admitted into evidence by Referee Powers. Dr. Wright’s FCE was the only FCE that was relied upon by Dr. Hammond.
Douglas Crum, whose credentials are well known to the Commission, testified on behalf of the claimant in a post-hearing deposition. Mr. Crum relied upon Dr. Wright’s FCE and testified that the claimant was totally and permanently disabled. Dr. Barros-Bailey testified that she believed that the claimant was not an odd-lot worker and that she could still seek and obtain employment. On cross examination, Dr. Barros-Bailey conceded that she was unaware of a fusion surgery performed by Dr. Verst until she read Mr. Crum’s report. Referee Powers stated that he was more persuaded by Mr. Crum’s opinion than those expressed by Dr. Barros-Bailey. Referee Taylor found that the claimant was totally and permanently disabled under the odd-lot doctrine and awarded lifetime disability benefits.
If your Idaho Workers’ Compensation doctor abandons you and will not support your claim, contact an Idaho Workers’ Compensation attorney and file the petition with the Idaho Industrial Commission for a change of physician to a doctor who will support your case.
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