Articles Posted in Workers Compensation

By Fred J. Lewis

We have now had some time to reflect on the adoption of the Sixth Edition of the AMA Guides to the Evaluation of Permanent Impairment. There were criticisms to the Fifth Edition in that it awarded too much impairment that was actually disability. One of the biggest changes from the Fifth to the Sixth Edition was a greater emphasis on the functional assessment as a component of the impairment rating. The doctors working on the Sixth Edition also tried to remove as much ambiguity as possible to improve the inter-examiner consistency. We have seen the biggest adjustments made in the spinal chapter of the Sixth Edition. These impairment ratings are now much lower. The writers of the Sixth Edition did this by assigning lower numbers to each of the classifications, which are driven by the severity of the injury. The writers of the Sixth Edition further attempted to drive down the impairment ratings by developing a grid system, which then subtracted or added to the overall impairment.

This development is of major concern to many Idaho Workers’ Compensation claimants. Most of the more serious Idaho Workers’ Compensation claims arise out of low back injuries. With the lowering of the impairment ratings, injured Idaho workers now receive less in the form of impairment rating monies because their impairment ratings are now lower. The way to work around this problem is to make sure that the disability portion of your Idaho Workers’ Compensation claim is developed by having evidence of your restrictions and documentation of your wage loss. These are the two largest non-medical factors that drive your disability claim. If your Idaho Workers’ Compensation claim is properly developed by an experienced Idaho Workers’ Compensation lawyer, you can make up for these lower impairment ratings by having a stronger disability claim from the non-medical factors in your Idaho Workers’ Compensation case.

By Fred J. Lewis

In Green v. Industrial Special Indemnity Fund (Second Injury Fund), the Claimant was a sawyer who was struck by a falling tree. The Second Injury Fund appealed from the Idaho Industrial Commission’s determination that Green was totally and permanently disabled and that his disability was due to the combined effects of a lumbar fusion and cervical fusion related to the industrial accident and a preexisting thoracic fusion. The Second Injury Fund argued that the Idaho Industrial Commission made a mistake regarding the application of the “but for” test for determining Second Injury liability.

The Idaho Supreme Court specifically held that in applying the “but for” test, it is not necessary for a claimant’s physician to use magic language in rendering an opinion regarding the effects of the prior condition and the last industrial accident. The Second Injury Fund focused on two sentences in the Commission’s decision to argue that the Commission failed to apply the “but for” test. But those two sentences are: “Therefore, per Drs. Ganz and McNulty, the fact that Claimant has a preexisting T12-L1 fusion increases the risk that he will have further problems from L3-5 fusion unless he observes certain prophylactic limitations/restrictions. We believe this demonstrates that Claimant’s preexisting thoracic spine condition does combine with the effects of the work accident to contribute to Claimant’s total and permanent disability.”

By Fred J. Lewis

On March 7, 2012, the Idaho Supreme Court decided the case of Brown v. The Home Depot. In this case the claimant had slipped on the snow covered steps while working for Home Depot and hurt his back. This Idaho Workers’ Compensation claimant had significant preexisting medical issues which included two prior back surgeries and the removal of his left lung. The claimant contended that he was totally and permanently disabled and sought recovery from both his employer and from the State of Idaho Industrial Special Indemnity Fund (ISIF). The Commission found that the claimant to have permanent disability of 95%, which meant that they did not find him to be totally and permanently disabled.

The Claimant appealed the Commission’s decision to the Idaho Supreme Court and argued the Commission correctly evaluated the permanent disability at the time he reached Maximum Medical Improvement (MMI) for his last injury as opposed to the actual date of the hearing in his Idaho Workers’ Compensation case. This was significant because his MMI date was in late 2005, which occurred during a job market boom as opposed to 2009, when his hearing was held and Idaho was in the midst of the Great Recession.

By Fred Lewis

In Chadwick, VA. Multi-state Electric, LLC. 159 Idaho 451 (2015) the Idaho Supreme Court held that the Claimant had failed to prove that the May 26^th, 2012 caused damage to the physical structure of the body and the Claimant had failed to give the employer timely notice of the alleged accident. The Supreme Court pointed out the record was filled with inconsistent evidence from the Claimant in his medical records, recorded statement and deposition in regard to both of his alleged accidents.

But the Idaho Supreme Court held that notice requires notice of and injury and notice that the injury was caused by an accident arising out of and in the course of employment. Notice to the employer that the employee is experiencing pain or that the employee has received treatment for that pain, is insufficient to meet the notice requirement, since injury is defined as “a personal injury caused by an accident arising out of and in the course of any employment covered by the Workers’ Compensation law”. “Injury” and “accident” are not synonymous, notice must be of both, and injury and the cause of the injury.

By Fred Lewis

In Fairchild v. Kentucky Fried Chicken, 159 Idaho 208 (2015), on November 13, 2004 16 year old Terence Fairchild was employed by Kentucky Fried Chicken as a cook. He was carrying garbage to a dumpster when he slipped on ice and fell, striking his knees on a concrete barrier. He sought medical care for his knee injury and finally ended up in the office of Dr. Simms, an orthopedic surgeon. Dr. Simms diagnosed Terence with a posterior cruciate ligament injury to his right knee. He did not believe that surgery was needed and gave the claimant a 3% whole person impairment rating. The independent medical evaluator hired by the workers’ compensation insurance company opined that Terence’s right knee was stable and he sustained no permanent partial impairment. In 2011, Terence’s lawyer sent him to another physician to conduct another impairment rating. This new physician gave the claimant a 7% whole person impairment rating. None of the doctors gave the claimant any type of physical restrictions.

The Idaho Industrial Commission found that Terence was not a credible witness based on observations during the hearing and the differences between his hearing testimony and his prior statements during depositions, interviews, and appointments with medical providers. The Commission entered an order awarding the 3% whole person impairment rating with no disability in excess of the impairment rating since there were no restrictions.

By Fred J. Lewis

On October 8, 2012, Richard Job, M.D. was working as an internal medicine doctor and primary care physician for DRNE Clinic/Heritage Health. On June 17, 2013 Dr. Job presented to Dr. Patrick Mullen complaining of sudden onset right thumb pain. Eventually, the infection was determined to be caused by methicillin-resistant staphylococcus aureus, or MRSA. When asked as to a possible source of the infection, Dr. Job told Dr. Mullen that the only thing that came to mind was that his cat had scratched him on his right hand a few weeks previous. The infection spread throughout the claimant’s body.

The widely disseminated MRSA infection had by the time of the hearing resulted in numerous surgeries including multiple hand and wrist, surgeries to clean out the infection, multiple surgeries to Dr. Job’s back and shoulder, and the removal of Dr. Job’s previously installed artificial hip joint. Dr. Job was placed on IV antibiotics for suppressive therapy of his incurable MRSA infection and will remain so for the rest of his life. Dr. Job also had suffered two strokes that were arguably related to his MRSA infection. Strokes left him unable to effectively communicate. In fact, Dr. Job was not even able to attend the hearing in the matter due to his health condition, including a second stroke. But, through his attorney Steven Nemec, Dr. Job had hired a number of physicians to testify in his behalf.

By Fred J. Lewis

In October of 2006 the Claimant, Thomas C. Millard, fell 25’ on to a cement pad and injured his back, left leg, neck and shoulder. As a result of the accident the Claimant also suffered a serious brain injury.

As a part of his treatment the Claimant in 2012 and 2013 had injections completed by his doctor Vikas Garg, M.D. Claimant also received physical therapy treatments in 2011.

By Fred J. Lewis

On June 8, 1992 the Idaho Supreme Court filed their decision in the case Osick v. Public Employee Retirement System of Idaho, 122 Idaho 457, 835 P. 2d 1268 (1992). Mr Osick was an employee of the Ada County Highway District from 1959 until he was injured in 1986. He filed a workers’ compensation claim and negotiated a lump-sum settlement of $24,667.50 plus $500 per month in compensation for his injury. Since Mr. Osick was a public employee he qualified for disability benefits under the Public Employee Retirement System which is known as PERSI. He was awarded disability benefits from PERSI in the amount of $903.60 per month. Pursuant to Idaho Code Section 59-1320 (1b), PERSI was able to offset Mr. Osick’s disability benefits in the amount that he received each month from his workers’ compensation claim. Mr. Osick petitioned the PERSI Board for a hearing, contending that in light of the case Deonier v. Public Employee Retirement Board 114 Idaho 721, 760 P. 2d 1137 (1988), that there should be no offset to his PERSI disability benefits by his workers’ compensation benefits. The Idaho Supreme Court disagreed and held that Idaho code Section 59-1320 (1), which was later recodified at Idaho Section 59-1353 (1) was not in disagreement with Idaho Code Section 72-318. The Idaho Supreme Court noted that the PERSI Statute was coordinated so that if the employee were to receive any annual workers’ compensation benefits under the same disability that the PERSI disability benefits would be offset by the workers’ compensation benefits.

The importance of this decision to public employees is that workers’ compensation benefits often provide little or no benefit to them because they just offset the PERSI disability benefits until that public employee goes on to his or her PERSI retirement benefits. I have been able to negotiate around this offset in the past. If you are a public employee and are injured as a result of an Idaho workers’ compensation claim, please contact me so that we can explore legally creative ways to get around this offset to your PERSI disability benefits.

By Fred Lewis

There are occasions when a third party hurts or injures someone while they are working. The injured Idaho worker can bring a claim against these negligent third parties. Under Idaho Code §72-223 the Idaho Worker’s Compensation Insurance Company has a subrogated claim or right to reimbursement from any money that injured worker obtains from the third party. However, there are limits on when they Idaho Worker’s Compensation Insurance Company can ask to be reimbursed for Worker’s Compensation Benefits they have paid. Specifically, the Idaho Supreme held in Adams vs Liberty a 1966 case, if the employer is also partly at fault in causing the accident that injured their own employee they loose their Worker Compensation Insurance Company or Surety looses they subrogated claim.

If a dispute arises between the Idaho Worker’s Compensation claimant and his/her employer Idaho Worker’s Compensation Insurance Company, the Idaho Supreme Court has held

By: Fred J. Lewis

I have been practicing workers’ compensation law for almost 30 years. It comes as a surprise to most injured workers how long their Idaho workers’ compensation case takes to get resolved. The first hurdle that we have in every Idaho worker’s compensation case is that the Idaho Workers’ Compensation Law requires that the injured Idaho worker has to heal completely or come to a place in their healing process that the American Medical Association Guides to the Evaluation of Permanent Impairment 6^th Edition defines as “Maximum Medical Improvement”. The Guides define Maximum Medical Improvement (MMI) as “where patients are as good as they are going to be from the medical and surgical treatment available to them”.

The writers of the Guides go on to explain that “(MMI) can also be conceptualized as a date from which further recovery or deterioration is not anticipated, although over time (beyond 12 months) there may be some expected change”. The writers of the Guides also state that “MMI represents a point in time in the recovery process after an injury when further formal medical or surgical intervention cannot be expected to improve the underlying impairment”.  I have often heard doctors refer to this idea of Maximum Medical Improvement as to when their patient reaches a plateau in their recovery and their injured body part has pretty much healed to the extent that it becomes functional again and it’s not expected to change in the future to any significant degree. If an injured Idaho worker is at MMI it does not necessarily mean that there’s an elimination of symptoms or subjective complaints. It just means that more surgeries or more medical procedures will not result in any significant improvement in the healing of the injured body part. Injured workers can still benefit from palliative care in the form of pain medications, massage therapy, and other pain relief treatments.