Zandra 2003,                   )
                               ) IC 01-014339
Claimant,                      ) IC 01-019806
v.                             )
                               )
                               ) FINDINGS OF FACT,
                               ) CONCLUSIONS OF LAW,
Employer,                      ) AND RECOMMENDATION
and                            )
                               )
WORKERS COMPENSATION EXCHANGE, )
                               ) FILED AUG 15 2003
Surety,                        )
Defendants.                    )
_______________________________)

3. Whether Claimant is entitled to permanent total disability pursuant to the odd-lot doctrine; and

4. Apportionment.

Claimant contends she injured her ribs at work on two occasions, June 18 and July 8, 2001.  She suffered impairment and significant permanent disability as a result and is an odd-lot worker.  Defendants initially accepted then unreasonably denied her claim.

Defendants contend Claimant suffered only minor bruising as a result of the accidents.  Her continued symptoms are not likely related to the alleged industrial accident. Their denials of benefits were reasonable given medical opinions regarding causation.

The record in the instant case consists of the following:

1. Oral testimony at hearing by Claimant;

2. Claimant’s exhibits A through R;

3. Defendants’ exhibits A through Q; and

4. Post-hearing depositions of orthopedic surgeon Ivar W. Birkeland, Jr., M.D., and R. C. Colburn, M.D.

The Referee takes judicial notice of the entries in the 1999 Physician’s Desk Reference ("PDR") for information concerning Lortab, Skelaxin, Oxycontin, and hydrocodone. Defendants’ objection to Claimant’s use of her "manual" while testifying at hearing is overruled.

1. Claimant worked for Employer for about seven months pulling the green chain.  On June 18, 2001, a piece of wood veneer struck her in the left anterolateral ribs. She continued working. On June 26, 2001, she visited Dr. St. John. On examination, he found a slight bump under her left breast around rib 5 or 6. He noted, "I think it’s probably normal cartilage, but I cannot be sure." An X-ray was negative. He prescribed Lortab and Skelaxin for pain. On July 3, Matthew L. Rice, D.O., felt the lump and diagnosed lateral rib contusions. He was concerned about a possibly fractured rib, but X-ray showed an old rib fracture with healing inconsistent with an injury as recent as June 18. He continued her prescriptions for Lortab and Skelaxin.

2. On July 8, 2001, another piece of wood veneer struck her in approximately the same location. She continued working. On July 18, 2001, Claimant was terminated for violating Employer’s "AWOL" policy.

3. On August 1, 2001, Dr. Rice noted, "there is still a subcutaneous lump in the left anterior rib cage in the area of ribs #7-8 consistent with a healed fracture." On August 16 he noted, "Also brings in a form from Sears credit card company to be filled out. They will pay for her credit card debt during the times that she is disabled." His diagnosis: "[status post] left rib contusion – healed."

4. On September 5, 2001, Dr. Rice submitted a note, "I advise that [Claimant] not work in industrial-type labor (i.e. heavy lifting, carrying etc.)". The purpose of the note is uncertain as Claimant had previously been fired and was not working elsewhere.

5. On September 13, 2001, an X-ray and MRI of Claimant’s low back showed mild degenerative changes, which the radiologist considered probably not clinically significant.

6. On September 21, 2001, Dr. Rice noted, "I have explained to [Claimant] that it appears that she has mechanical back pain not related to her rib injury."

7. Surety contacted Ivar W. Birkeland, M.D. to examine Claimant. On September 27, 2001, Dr. Birkeland examined Claimant, found subjective complaints without objective support, positive Waddell tests, and diagnosed "mild to minimal contusion, left anterior lower chest wall, related to both of her injuries of June 18, 2001, and July 8, 2001, healed and resolved. Chronic pain behavioral manifestations and symptom magnification on a functional basis, not injury related."  He opined she had no ratable impairment and needed no further medical care or restrictions.

8. Claimant’s current complaints have remained fairly consistent since August 2001.  She reported a band of pain starting at the point of impact from the wood, growing around her ribs and climbing up her back into her head and sometimes also going down her back as well.  At hearing Claimant alleged, "Driving, if I spent a half an hour, forty-five minutes in a rig driving, I would lose my depth perception, I would feel like I was off in left field, I just – a really hazy feeling. . . Sitting, reading – you know, sitting for any length of time makes me real hazy, and then I – it’s kind of hard to think and concentrate."

9. On October 29, 2001, Claimant sought out Mahlon Hiestand, M.D. It is important that about one year later, on September 25, 2002, Dr. Hiestand sent Claimant a letter informing her that the Idaho State Board of Medicine had suspended his license for overprescription of narcotic medication, specifically Oxycontin. Oxycontin is a brand name for hydrocodone. So is Lortab. Claimant’s medical records show she frequently used Lortab as early as July 1997.

10. On July 9, 1997, Claimant visited a doctor about left buttock pain from a fall. She alleged she was allergic to certain medications, including anti-inflammatory medications.  A Dr. Davenport ordered only rest and ice. The next day she telephoned, said she was worse, and the doctor prescribed Lortab. Thereafter Claimant frequently made claims of various pains.  Until Dr. Hiestand began prescribing Oxycontin, Lortab was her prescription of choice. She occasionally claimed she needed refills because she had lost her pills or that they had been stolen.  On one occasion, a Dr. McNulty refused to refill a prescription for Tylenol #3 with codeine when Claimant telephoned to claim she had fallen again but refused to make an appointment to visit.  On September 28, 1996, she complained to a Dr. Thurston that she had left shoulder and rib pain.  She told him the only narcotic she could take was codeine. The medical records show Claimant alleged an intolerance for nonnarcotic medications – aspirin, ibuprofen, NSAIDs, etc. – of varying types at varying times. The records do not show any credible facts that she actually has had any adverse reaction to these medications. On two occasions, she telephoned doctors to complain that the prescribed Ultram was not working and that she needed something stronger.

11. On Claimant’s first visit to Dr. Hiestand, he noted her X-ray was inconsistent with a recent rib fracture. But on a subsequent visit, based upon her pain complaints, he prescribed Oxycontin. He continued to refill her prescriptions based upon her pain complaints until his license was suspended. At one point Dr. Hiestand tried to switch Claimant to the less powerful Lortab.  However, she telephoned to report Lortab caused her to itch. He returned her to Oxycontin. He tried trigger point injections and a nerve block. She claimed the nerve block actually increased her pain.

12. On November 14, 2001, Claimant was seen at the St. Joseph RMC Pain Management Center for a consultation by N. Kirke White, M.D., on referral from Dr. Hiestand. Dr. White examined her and noted that an MRI showed "nothing present that would explain the anterior rib cage pain or the spread of the pain from the left around to the right." He further noted:

The knot that she refers to appears to be a tight and [sic] in the intercostal muscle inferior to the sixth rib; and there are two small BB size knots in this band, one of which she identifies and the other which she did not notice. . . Patient has developed chronic pain syndrome from what appears to be a fairly simple injury. It is my gut impression that she has become dependent upon her medication, either subconsciously or consciously and is using the pain as an excuse to obtain her pain medications.

Finally he noted, "It would be my recommendation that the patient be started on a regimen of physical therapy for both strengthening and stretching with particular emphasis to restoring normal biomechanics. As the patient becomes more active it would be my recommendation that her pain medication be reduced and then eliminated." Claimant did not attend the pain clinic.

13. An X-ray and MRI in November 2001 showed possible scoliosis or poor posture and an old compression fracture at T8.

14. Claimant began some physical therapy in December 2001. She was often a "no show." On April 10, 2002, Claimant told the physical therapist she was no longer taking any prescription pain medication. That same day she received a refill prescription from Dr. Hiestand.

15. On January 7, 2002, Dr. Hiestand opined her pain was due to the work injuries stating, "I believe her industrial injury probably caused the mild compression fracture and also muscle injury with subsequent myofascitis of that muscle."

16. On April 26, 2002 Dr. Hiestand provided her some physical restrictions and noted, "This is due to muscular injuries in the thoracic area sustained in an on-the-job injury."

17. On October 18, 2002, W. R. England, M.D., treated her for a motor vehicle accident.  She complained of head pain, right forearm pain, rib pain, and lumbar pain. He prescribed Vicodin but she complained it did not work.

18. On December 12, 2002, Claimant sought treatment from Vicky M. Lott, M.D., who noted, "Patient states that stress makes her back pain worse." Dr. Lott diagnosed chest wall pain/back pain, depression, and insomnia. In subsequent visits Dr. Lott refused to give Claimant narcotics, especially Oxycontin.

19. On January 22, 2003, Claimant began another round of physical therapy.

20. On January 29, 2003, Dr. Lott noted Claimant "is asking for Lortab for her ‘bad days’." Dr. Lott further recorded, "Did advise patient on my opinion that her injury from June 2001 is healed."

21. Robert C. Colburn, evaluated Claimant on February 23, 2003. He opined Claimant suffered a 5% impairment, of which 4% was attributable to the accidents. In his report he opined:

I think, considering the whole situation as I perceive it, that her current condition and complaints of pain are due to chronic thoracic pain associated with some, what I interpret as, degenerative changes in her thoracic spine at the level of T7—8, which are demonstrated in the MRI examination. I think that the relationship of this condition to her industrial event in June 2001 is historical. I think that that event represents a contusing injury to her ribcage, which on a medically reasonable basis could be associated with her chronic pain as an aggravating event. (emphasis added)

In both his report and in deposition, Dr. Colburn expressed his opinions with more reserved language than Dr. Birkeland. Dr. Colburn’s opinions appear thoughtfully formed and credibly held.  However, his opinions relating her current complaints to the accidents included enough qualifying language to make it ambiguous whether these opinions were held to the required degree of medical probability. His evaluation came much later after the accidents than those of Drs. Rice and Birkeland. Dr. Colburn was required to rely substantially upon Claimant’s descriptions of her condition shortly after these accidents, whereas Dr. Birkeland actually examined her then. Thus, Dr. Colburn’s opinions and impairment rating receive less weight.

22. In deposition, Dr. Birkeland was candid in his opinions. He testified he diagnosed "chronic pain behavioral manifestation symptom magnification on a functional basis. In other words, what was going on with her was basically in her head and not in her back." He described the credibility of her symptoms: "You could even say it was a little crazy. This can’t happen. So it was a subjective complaint she had which would have no physiologic basis for this to occur." He viewed her X-ray films and found "nothing wrong with them and they were absolutely normal." He testified, "She’s a head case." He opined the T7-8 anomalies were unrelated to the two industrial injuries and that she suffered no ratable impairment. He commented on Dr. Hiestand’s narcotic prescriptions:  "And my God, I mean, you know, that – you could – with that amount of narcotics, you know, he could create a zombie."

23. Claimant suffered industrial accidents on June 18 and July 8, 2001. Claimant must show, more likely than not, that her physical condition was caused by the industrial accidents.  See, Langley v. State, Industrial Special Indemnity Fund, 126 Idaho 781, 890 P.2d 732 (1995).  These accidents resulted in minor bruising which healed normally. Claimant’s continued complaints of pain and medical care she sought after Dr. Birkeland’s examination were unrelated to the accidents.

24. Claimant failed to show she probably suffered permanent impairment or disability as a result of these accidents.

25. Claimant asserts a claim for TTD in her argument, but the record does not support her claim of wage or the length of her temporary disability. Defendant’s calculations are correct except for the end date. For purposes of entitlement to benefits, Claimant is deemed to have been stable as of September 21, 2001. On this date, her treating physician, Dr. Rice, noted Claimant’s continuing complaints were not related to the industrial accidents. Claimant should be entitled to TTD benefits to and including September 21, 2001. Defendants did not act unreasonably by denying this claim effective September 1, 2001, but they are responsible for these additional TTD benefits.

26. Claimant is similarly entitled to medical care benefits to and including September 21, 2001.

27. Claimant’s unfortunate propensity for seeking secondary gain predated the accidents.  Her overmedication problems which arose after September 21, 2001, were not related to the accidents. She sought out doctors willing to prescribe hydrocodone after her treating physician, Dr. Rice, and Dr. Birkeland opined she was completely healed as far as the accidents were concerned. Although Defendants discontinued benefits a few weeks earlier, that decision was reasonable despite the fact finder’s determination of a slightly later date of medical stability.

1. Claimant suffered industrial accidents on June 18 and July 8, 2001, which caused minor bruising of her rib area. She suffered no related medical problems after September 21, 2001;

2. Claimant is entitled to TTD and medical care benefits to and including September 21, 2001, with Defendants entitled to credit for amounts paid;

3. Claimant failed to show she suffered permanent impairment or disability;

4. Claimant failed to show she was entitled to an award of attorney fees;

5. The issue of apportionment is moot.

The Referee recommends that the Commission adopt the foregoing findings of fact and conclusions of law and issue an appropriate final order.

DATED in Boise, Idaho, on this 11^TH day of August, 2003.

INDUSTRIAL COMMISSION

/S/__________________________________

Douglas A. Donohue, Referee

ATTEST:

/S/_____________________________

Assistant Commission Secretary