Nelson v. Indus. Spec. Indem. Fund

553 P.3d 953

Robert NELSON, Claimant-Appellant,

v.State of Idaho, INDUSTRIAL SPECIAL INDEMNITY FUND, Respondent,andHoppy Enterprise, LLC, Employer; and Idaho State Insurance Fund, Defendants.

Docket No. 50485-2023

Supreme Court of Idaho, Caldwell, May 2024 Term.

Opinion Filed: August 6, 2024

Appeal from the Idaho Industrial Commission.

The decision of the Commission is affirmed.

Curtis, Porter & Adams, PLLC, Idaho Falls, for Appellant. Andrew A. Adams argued.

Raúl R. Labrador, Idaho Attorney General, Boise, for Respondent. Anthony M. Valdez argued.

ZAHN, Justice.

Robert Nelson appeals the Idaho Industrial Commission’s decision denying his claim against the Idaho Industrial Special Indemnity Fund ("ISIF") for total and permanent disability benefits. The Commission denied Nelson’s claim after concluding that Nelson failed to prove that he was totally and permanently disabled and that he suffered a permanent impairment because of his work- related accident. Underpinning these decisions was the Commission’s determination that Nelson was not a credible witness. On appeal, Nelson argues that the Commission’s finding that he was not credible is unsupported by substantial and competent evidence and, therefore, its decision denying his claim should be vacated and remanded for further proceedings. We affirm the Commission’s decision because its finding that Nelson is not totally and permanently disabled is supported by substantial and competent evidence.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Nelson’s work-related back injury and related medical treatment

On March 29, 2018, Nelson was working for his then-employer, Dependable Auto Sales, when he bent down to lift a garage door and felt a pop in his back. Although Nelson had not thought anything of it at the time, he awoke the next day with significant back pain that radiated down his left leg. Nelson’s primary care physician, Dr. Dallas Rindfleisch, performed an x-ray that revealed multilevel degenerative disease in Nelson’s lumbar spine without spondylolysis or spondylolisthesis. Dr. Rindfleisch diagnosed Nelson with "acute back pain with left radiculopathy." Dr. Rindfleisch then took Nelson off work temporarily. Nelson filed a worker’s compensation claim on April 11, 2018.

Over the next several months, Nelson underwent diagnostic testing and pain-relief treatment with Dr. Rindfleisch. An April 2018 MRI revealed degeneration at Nelson’s L5-S1 joint, including moderate thecal sac stenosis secondary to epidural fat and moderate facet spondylosis. Nelson weighed over 350 pounds at the time of this MRI. Dr. Rindfleisch opined that Nelson lifting the garage door at work likely caused a flare up of arthritis and a possible disc bulge in his back. Dr. Rindfleisch subsequently recommended significant weight loss. Dr. Rindfleisch briefly approved Nelson for light-duty work four hours per day before taking Nelson back off work "until further notice." Nelson never returned to work.

In August 2018, Nelson’s employer hired Dr. Dennis Chong to provide an independent medical evaluation ("IME"). In Dr. Chong’s IME report, he opined that Nelson’s back problems were caused by his morbid obesity and were not industrially related. Dr. Chong concluded that Nelson’s back pain was likely due to shifting epidural fat related to Nelson’s restlessness while sleeping. Dr. Chong opined that Nelson suffered, at most, a mild lumbar strain or sprain from lifting the garage door that would have resolved within a few weeks. Dr. Chong opined that Nelson was medically stable and, as it related to a possible industrial injury, Nelson could return to work without restrictions.

In late August 2018, Dr. Rindfleisch referred Nelson to Dr. Brent Greenwald. Dr. Greenwald diagnosed Nelson with sacroiliitis and epidural lipomatosis. Consistent with Dr. Chong’s IME, Dr. Greenwald noted that the lipomatosis was not acute and that Nelson’s back problems were related to his weight and a preexisting degenerative condition. In a responsive letter, Dr. Rindfleisch agreed that Nelson’s weight contributed to his back issues but noted that Nelson carried that weight prior to his back injury. Dr. Chong authored an addendum to his IME responding to Dr. Rindfleisch’s letter and Dr. Greenwald’s medical report. Dr. Chong reconfirmed his opinion that Nelson’s back injury was not industrially related.

In January 2019, Nelson requested and obtained an IME from Dr. Benjamin Blair. During the evaluation, Nelson reported for the first time that he noticed mild discomfort immediately after he felt the pop in his back on March 29, 2018. Dr. Blair opined that Nelson suffered from an aggravation of preexisting, asymptomatic, lumbar spine stenosis due to lipomatosis and deemed him medically stable. Dr. Blair concluded that the March 29, 2018, injury caused a permanent impairment, assigned an 11% permanent partial impairment ("PPI") for Nelson’s back injury, and imposed lifting, motion, and position restrictions. Nelson returned to Dr. Rindfleisch with persistent symptoms in March 2019, and Dr. Rindfleisch continued ongoing injections in Nelson’s spine.

In May 2019, Nelson underwent electrodiagnostic testing with Dr. David Simon. Dr. Simon found acute denervation in Nelson’s L5 nerve root and diagnosed him with left L5 radiculopathy and ordered a second MRI. The second MRI revealed moderate facet spondylosis throughout Nelson’s lumbar spine and a disc protrusion at L5-S1. Dr. Simon referred Nelson to Dr. Brandon Kelly for a spine surgery consultation, but Nelson elected not to have surgery.

In July 2020, Dr. Chong provided a second addendum to his IME. Dr. Chong again opined that Nelson’s back issues were not related to the March 29, 2018, injury. Dr. Chong noted that the second MRI revealed a new injury—an L5-S1 disc protrusion—without an intervening traumatic event, which was consistent with the natural progression of the chronic degenerative process.

Nelson underwent weight loss surgery on October 21, 2020. At his heaviest, Nelson weighed 390 pounds. Nelson weighed 269 pounds at his final weight loss surgery follow-up appointment on April 21, 2021.

B. Nelson’s preexisting injuries

Nelson has sustained several injuries throughout his life that he claims, when combined with the March 29, 2018, work-related back injury, render him totally and permanently disabled. Nelson’s relevant preexisting medical history is as follows:

• In 1988, Nelson injured his left knee at work and underwent knee surgery. Dr. Rheim Jones determined that Nelson suffered an 8% lower extremity PPI. Nelson experienced complications during his recovery and had to undergo a second surgery after which Dr. Jones increased Nelson’s lower extremity PPI to 10% and imposed permanent restrictions of no frequent bending and no lifting more than 50 pounds. However, Dr. Jones removed these restrictions after learning that Nelson was playing baseball.

• In September 1991, Nelson sought treatment for a work-related right knee injury. Nelson underwent right knee surgery, and Dr. Rheim Jones assigned a 7% lower extremity PPI related to his right knee.

• In February 1993, Nelson tore ligaments in his ankle while playing basketball.

• In January 1996, Nelson injured his shoulder at work. Dr. Rheim Jones recommended surgery for a likely torn rotator cuff.

• In December 2004, Nelson underwent surgery again on his left knee to repair a torn ACL.

• Prior to June 2009, Nelson began receiving treatment for osteoarthritis. The record does not indicate the exact date these treatments began.

• In 2009, Nelson was diagnosed with gout in his toe. The gout caused flare-ups and Nelson intermittently sought treatment for the condition.

• In January 2013, Nelson suffered an ankle injury at work and an MRI revealed a ligament tear and underlying degeneration.

• In August 2013, Nelson had a left knee x-ray performed that showed arthritis.

• In June 2014, Nelson underwent left knee arthroscopic surgery after an alleged work injury, although the treating physician questioned whether the condition arose at work.

C. Work history and vocational expert opinions

In 1997, Nelson began working as a car salesman. Other than a short period selling cleaning supplies, Nelson continued working as a car salesman in different capacities at various car dealerships and sales lots until the March 29, 2018, injury. Nelson had been working for Dependable Auto Sales as a car salesman and sales manager for more than one year prior to his March 2018 back injury.

Nelson returned to light-duty work for Dependable Auto Sales for a short period after his injury but did not return to work after May 2018. Nelson consulted with the Industrial Commission Rehabilitation Division’s vocational consultants in May 2018. In early 2019, Nelson confirmed with a vocational consultant that he was receiving Social Security Disability benefits and did not intend to return to work.

In October 2018, Nelson underwent a functional capacity evaluation ("FCE"). To measure Nelson’s sincerity of effort, the evaluator used several indicators that the evaluator concluded indicated good effort during the evaluation. The FCE results placed Nelson in the "Light Physical Demand Classification of Worker," and the evaluator stated that Nelson’s lifting restrictions and poor fitness test results meant that Nelson required frequent breaks, needed to change postures regularly, and would have trouble tolerating sustained work.

In December 2020, Vocational Consultant Kent Granat authored a vocational assessment for Nelson, which included a labor market access analysis. Granat concluded that Nelson was totally and permanently disabled based on a combination of medical and nonmedical factors. Granat’s labor market access analysis did not include managerial jobs because, as Granat explained in an addendum to his report, Nelson told him he had not previously worked in a managerial position.

In July 2021, Vocational Consultant Cali Eby authored a vocational...