BEFORE THE IOWA WORKERS’ COMPENSATION …



BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER

______________________________________________________________________

:

JULIE KARSTENS, :

:

Claimant, :

:

vs. :

: File No. 5035373

MARIAN HOME (DIOSCESE OF :

SIOUX CITY), :

: A R B I T R A T I O N

Employer, :

: D E C I S I O N

and :

:

CATHOLIC MUTUAL GROUP :

INSURANCE, :

:

Insurance Carrier, :

Defendants. : Head Note Nos.: 1803

______________________________________________________________________

STATEMENT OF THE CASE

Julie Karstens, the claimant, seeks workers’ compensation benefits from defendants, Marian Home (Diocese of Sioux City), the employer, and its insurer, Catholic Mutual Group Insurance, as a result of an alleged injury on May 31, 2009. Presiding in this matter is Larry P. Walshire, a deputy Iowa Workers’ Compensation Commissioner. An oral evidentiary hearing commenced on November 7, 2011. In response to the objections at hearing from both parties concerning discovery and untimely exhibit exchanges, I ruled on November 22, 2011 that this matter was not ripe for litigation at the time of hearing due to unavoidable circumstances and discovery was reopened for both parties until March 23, 2012, during which time they could submit new exhibits. Neither party requested the opportunity to submit new testimony. Oral testimony and written exhibits received into evidence at the November 7, 2011 hearing are set forth in the hearing transcript. On January 17, 2012, claimant submitted a new independent medical evaluation (IME) report from Sunil Bansal, M.D. I labeled this as Exhibit 9. On February 14, 2012, defendants submitted new exhibits marked NN and OO. Absent objection from either party, these new exhibits are received into evidence. The parties did not submit further brief or argument since my ruling on November 22, 2011.

Claimant’s exhibits were marked numerically. Defendants’ exhibits were marked alphabetically. References in this decision to page numbers of an exhibit shall be made by citing the exhibit number or letter followed by a dash and then the page number(s). For example, a citation to claimant’s exhibit 1, pages 2 through 4 will be cited as, “Ex 1-2:4.” Citations to a transcript of testimony such as “Tr-4:5,” either in a deposition or at hearing, shall be to the actual page number(s) of the original transcript, not to the page number of a copy of the transcript containing multiple pages. It should be noted that claimant consecutively numbered all of her exhibits in a single package.

The parties agreed to the following matters in a written hearing report submitted at hearing:

1. On May 31, 2009, claimant received an injury arising out of and in the course of employment with Marian Home.

2. Claimant is seeking temporary total or healing period benefits only from May 11, 2010 through October 6, 2011 and defendants agree that she was off work during this period of time.

3. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole.

4. At the time of the alleged injury, claimant's gross rate of weekly compensation was $360.05. Also, at that time, she was married and entitled to two exemptions for income tax purposes. Therefore, claimant’s weekly rate of compensation is $253.36 according to the workers’ compensation commissioner’s published rate booklet for this injury.

5. The requested medical expenses submitted by claimant at the hearing set forth in Exhibit 8 are causally connected to the back condition upon which the claim herein is based, but defendants deny their reasonableness and their authorization for these expenses.

6. Prior to hearing, defendants voluntarily paid various weeks of disability benefits for this work injury as set forth in the hearing report.

ISSUES

At hearing, the parties submitted the following issues for determination:

I. The extent of claimant's entitlement to weekly temporary total or healing period benefits and permanent disability benefits; and,

II. The extent of claimant's entitlement to medical benefits.

An issue concerning defendants’ entitlement to credit against any award in this case for a small overpayment of the weekly rate prior to hearing was withdrawn by defendant due to the ruling of the Iowa Supreme Court in Swiss Colony, Inc. v. Deutmeyer, 789 N.W.2d 129 (Iowa 2010).

FINDINGS OF FACT

In these findings, I will refer to the claimant by her first name, Julie, and to the defendant employer as Marian Home.

From my observation of her demeanor at hearing including body movements, vocal characteristics, eye contact and facial mannerisms while testifying in addition to consideration of the other evidence, I found Julie credible.

Julie worked for Marian Home, a nursing home for elderly residents, as a certified nursing assistant (CNA) initially from 1981-1982 and, again from October 2008 until May 10, 2011 when she was told that the home no longer had need for her services in light of her permanent work restrictions from her work injury. At this time, she was given a $4000.00 severance allowance. (Tr-72:73) When she was terminated, she was doing temporary light duty work as a receptionist. She had not worked full duty as a CNA since December 2009 when a company authorized worker’s compensation physician took her off CNA work and recommended permanent restrictions that would only allow clerical type of work. (Exhibit O, M-15:16) At the time she left Marian Home she was earning $10.17 per hour and working 35-37 hours a week. At the time of her injury she was working 37.5 hours a week at the same hourly rate.

Julie’s last performance rating was generally good, but due to safety issues (instances of not following her doctor imposed activity restrictions) she was not recommended for a pay raise by her supervisor. (Ex. LL) Julie also had instances of disciplinary action in her personnel file for inappropriate conversations/language with residents. (Ex. HH-KK) However, her work injury restrictions were the sole reason for her leaving CNA work and Marian Home.

Julie described her work as a CNA at Marian Home. In addition to housekeeping duties, CNAs are to physically assist residents in the functions of everyday living, such as bathing, getting dressed, eating and going to the bathroom. This involves assisting disabled residents with moving about the home either by walking on their own, using a wheelchair or using lifting/transport mechanical devices. Residents also need to be turned in bed as needed. The job description requires lifting up to 50 pounds. (Ex. GG-4) However, emergency situations set forth in this description may require more force to prevent injury from unanticipated falls and health episodes involving heavy residents.

Julie’s claim in this case is based on a low back injury on May 31, 2009 when she injured her back while attempting to lift a resident using a lifting machine with a co-worker. She admitted to occasional backaches prior to 2009. (Tr-97) In June 1987, she received treatment on one occasion for a back strain when she walked off a step and felt something crack on the left side. She was given medication and did not return for additional treatment. (Ex. A) In February 2004, she was treated for chest and back pain in conjunction with respiratory problems and was worked up for possible cardiac and pulmonary problems and no such problems were found. (Ex. B) Julie states that despite some backaches, she had no permanent impairment or restrictions prior to working at Marian Home. (Tr-83) There are no medical records in evidence to suggest otherwise.

Although the parties have settled on a May 31, 2009 injury date for this claim, Julie states that actually she had three back injuries at Marian Home in 2009. The first occurred in January 2009 when she slipped and fell on ice while getting out of her car in the Marian Home parking lot. This was apparently treated conservatively according to a history obtained by a doctor in October 2009 (Ex. P-1), although no treatment records are in evidence relating to this event. Julie also states that while she was on restrictions after the May 31, 2009 injury at work, a resident had a stroke and fell on her in June 2009 while she was assisting her in the bathroom and the resident could not be removed off of her until paramedics arrived 30 minutes later. Julie states that the leg weakness began after this event. (Tr-44:47, Ex. MM-15)

Authorized treatment for the stipulated work injury by defendants was initially provided by Mary Shook M.D., at Trinity Corporate Health Services at the Fort Dodge Trinity Regional Health Center. (Ex. 2) This included medications, restricted duty and physical therapy for lumbosacral sprain/sprain. Dr. Shook requested a consultation with a neurosurgeon, David Boarini, M.D. Dr. Boarini only recommended continued conservative care to include weight loss, quitting smoking, physical therapy and a back exercise program. (Ex. H) Julie then began treating at the Trinity Regional Pain Clinic and received a multitude of injections, nerve blocks, and facet blocks along with strong pain medications. (Ex. 4) In the fall of 2009, Dr. Shook left and Julie’s care at Corporate Health Services was assumed by Gary LeValley, M.D.

Also, in the fall of 2009, she began seeing Robert Rondinelli, M.D., a specialist in physical medicine and rehabilitation. He found that in addition to her continuing pain from her work incidents, she had premorbid history of anxiety and panic attacks and probable psychological depression which was causing a barrier to recovery in relation to impaired coping skills. He suggested the possibility of surgery with Julie and referral to a couple of orthopedists for another surgical evaluation, but Julie declined. Julie states that she declined this surgical referral due to discussions she had with Dr. Shook that surgery would substitute one problem for another. (Tr-55:56) Finally, Dr. Rondinelli felt that she achieved maximum medical improvement (MMI) on November 18, 2009 and should be permanently restricted to clerical activities. He also provided an eight percent permanent impairment rating under the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition. (Ex. O) It should be noted that the date of Exhibit O is February 16, 2009. This is obviously a typographical error and likely was issued on February 16, 2010. In December 2009, Dr. LeValley also recommended that she be re-assigned from CNA duties. (Ex. M-15)

Sherman Jew, D.O., another physician at Corporate Health Services evaluated Julie at the request of defendants. He opined in his written report of March 22, 2010 that her permanent partial impairment under the AMA Guides, Fifth Edition was 13 percent due to her relatively high pain score on a pain questionnaire, but that only 51 percent of this was work related due to a pre-existing condition of her back and the final rating was 7 percent. He did not discuss restrictions in this report. (Ex. L) In May 2010, Dr. Jew recommended a work status of regular duty as a receptionist at the Marian Home. He also recommended continued aquatic therapy, continued use of hydrocodone and Neurontin. (Ex. M-16)

Julie continued with the pain management modalities in the summer of 2010, but she became increasingly dissatisfied and frustrated with the medical care she was receiving at the pain center. She felt drugged all of the time and had periods where she would not remember events such as a time when she ran into the street crying looking for her husband and was told of this by a neighbor who helped her at the time. She testified that none of the treatment modalities she was receiving were helping her pain or her functionality. (Tr-59:62) Finally, in August 2010 she went to her family doctor on her own using her private insurance seeking a second opinion on her back condition. (Ex. 3-34). She was then referred to Sarkis Kaspar, M.D., at the McFarland Clinic in Ames, Iowa.

Dr. Kaspar evaluated Julie on September 24, 2010. He noted that she had already undergone very extensive physical modalities, medications and injection therapy with little help. He noted that although her medications were recently tapered down to some extent, she remained on very strong narcotic medications. After testing while Julie was lying down and then standing up, Dr. Kaspar noticed considerable slippage in the spinal disc. Dr. Kaspar suggested fusion surgery at the L5-S1 level and Julie agreed. (Tr-63:64, Ex. 5-59:60) Julie admits that she did not at this time seek a surgical evaluation from providers suggested by the authorized physician, Dr. Rondinelli. The surgery was done on October 20, 2010. (Ex. R) Julie states that this surgery was successful. She testified that she had 100 percent or total relief of her right leg pain and considerable relief of her back pain from a 9 out of 10 level down to a 3-4 level out of 10. This is consistent with what she reported to Dr. Kaspar. (Tr-65, Ex. MM-13:14, Ex. T) Now she only takes Tylenol 3 for occasional pain and muscle spasm. She received an injection for some continued sacroiliac pain from Dr. Kaspar a year after the surgery, which is in stark contrast to the numerous injections and blocks she received from the authorized doctors prior to seeing Dr. Kaspar. Her episodic pain is reduced from 3 to 1 per month. (Ex. 5-61)

In March 2011, Dr. Kaspar recommended activity restrictions of regular lifting of only 5 pounds and repetitive lifting no more than 10-15 pounds, with no excessive bending or twisting of the lumbar spine. He suggested some type of sedentary or very light duty work. (Ex. S) In May 2011, Dr. Kaspar stated that Julie was not then at MMI and any further opinions regarding permanent impairment and restrictions would be addressed at the time of MMI. (Ex. T-9)

At the request of defendants, Julie was evaluated by Dr. Rondinelli in July 2011. He agreed that Julie was not at MMI and could not be evaluated for permanent impairment or restrictions until she achieved MMI, which he estimated would be about a year after surgery. Despite Julie’s report of greatly reduced pain levels and only taking Tylenol 3, Dr. Rondinelli stated she is not significantly improved in her work ability or quality of life. She continues to have symptomatic pain and limited activity tolerance. (Ex. 6-64:65)

Julie’s prescription history indicates that she is currently regularly taking prescription Tylenol 3 and a muscle relaxant, but since her surgery, her use of hydrocodone and hydromorphone discontinued. She remains on medications for depression, anxiety, and high blood pressure. (Ex. 8, prescription costs section & Ex. U)

Apparently, not being satisfied with the views of Dr. Rondinelli, defendants asked claimant to undergo yet another evaluation by a Dean Wampler, M.D., an occupational physician and director of Comp Choice. (Ex. Y) Dr. Wampler disagreed with Drs. Kaspar and Rondinelli stating that Julie had achieved maximum medical improvement from her surgery, but added that he did not think she was a good candidate for surgery. He feels that Julie just had soft tissue muscle strain from her injury and only had perceived continued pain due to her mental problems and that she will never improve. He felt that her need for surgery was pre-existing and unrelated to her work injury. He provided an eight percent permanent partial impairment rating. (Ex. W) Following a functional capacity evaluation (FCE) ordered by Dr. Wampler which was deemed valid (Ex. Z), Dr. Wampler opines that Julie’s capabilities are limited to lift and carry up to 25 pounds occasionally, 15 pounds frequently, and to avoid prolonged forward stooped or bent postures at the waist. She is to limit bending at the waist to occasional. (Ex. X) Julie testified that the FCE left her very sore and she stayed in bed for a long time the next day. She denies the ability to lift up to 20- 25 pounds without developing increased pain. (Tr-76:78)

In two reports dated October 31, 2011, Karen Stricklett, a vocational rehabilitation consultant, provided an assessment of Julie’s industrial disability as a result of her May 31, 2009 work injury. Based on Julie’s high school education, current CNA certification and her extensive work history involving medical service, customer service and retail service jobs and the capabilities set forth in Dr. Wampler’s FCE, Stricklett opines that Julie is able to return to the local labor market in the Fort Dodge area as a home companion, cashier-checker, mail clerk, counter clerk, security guard, admitting clerk, customer service representative, retail sales consultant, food deliverer, optical dispensing technician and counter assistant. Stricklett then did a labor market survey showing available jobs as a security officer, admitting clerk, customer service representative, wireless retail consultant, pizza delivery driver, front desk clerk, optical dispensing technician, credit union member representative, and night auditor. These pay wages in the $7.65 to $9.99 per hour range. Consequently, according to Stricklett, Julie’s loss of wages form her injury was in the 1-22 percent range given her hourly rate at the time of the work injury of $9.75 per hour. Stricklett estimated the loss of earning capacity to be approximately 25 percent. (Ex. BB 19-14 & Ex. CC)

Julie, at hearing, questioned her ability to return to most of the jobs identified by Stricklett either due to lack of experience in such work or the need for retraining to acquire the necessary computer skills required in many of these jobs. She also would not accept a job as a pizza delivery driver due to safety concerns. She states that the optical dispenser job would require a commute of 20-25 miles, one-way, and she states she cannot drive that distance with her back condition. (Tr-79:83)

Julie testified that after leaving Marian Home she has attempted to find work in the Fort Dodge area. She returned to the photo shop where she previously worked, but could not do the work more than a few hours a day. She states that she has talked to other retail managers in the area and was told they would not hire her due to her restrictions. She did not identify any of these store managers. (Tr-75:76) She admitted that at the time of her deposition in June 2011, she had not applied for a job other than the photo shop job and at one gas station. Julie stated that her additional search efforts were done after the deposition. (Tr-108:112) Julie remained unemployed at the time of the November hearing.

After hearing, claimant underwent an IME evaluation on December 9, 2011 by Sunil Bansal, M.D., another occupational physician, from the Iowa Injury Institute. In his extensive written report detailing Julie’s medical history, Dr. Bansal states that Julie’s pain now averages 3-4/10, but it gets as high as 8/10. Julie states that the back feels better after her surgery and she does not fall down as much. She states that she continues to have pain, numbness and tingling in her right leg while sitting up in bed and when she is in the bathroom. She continues to have spasms in her back. She stated that she cannot keep up with her housework she did before the injury. She continues on pain medications, but is off morphine. Dr. Bansal opines that her impairment is 22 percent of the whole person under the AMA Guides, Fifth Edition. He causally relates this impairment to the series of injuries in 2009 while at Marian Home stating that had she not had the injuries, she would not have had the fusion surgery. Dr. Bansal agreed with the restrictions imposed by Dr. Wampler based on the FCE in October 2011 and a return to work at the light physical demand level. However, he would further limit her lifting to no greater than 10 pounds frequently, 15 pounds occasionally, if she is to avoid pain and pressure on the disc herniation. He also would restrict her bending, twisting, squatting, kneeling, climbing stairs and ladders, pushing or pulling. He also would restrict standing longer than ten minutes, sit/stand/walk as tolerated and alternate positions. (Ex. 9-27:28)

Defendants gave Dr. Wampler an opportunity to respond to the views of Dr. Bansal. In his written report dated January 25, 2012, Dr. Wampler states that Julie’s responses to pain questionnaires were different than her pain complaints reported to Dr. Bansal later in the examination. The doctor pointed out that Julie acknowledged that she is able to complete all of her activates of daily living, but that it just takes longer and the Oswestry Disability questions indicate ability to lift light to medium objects if they are conveniently positioned and that this is dramatically different that the restrictions outlined by Dr. Basal. Also in the Oswestry questionnaire, Julie reported ability to sit or stand up to one hour at a time, and walking tolerance up to half a mile, but then stated that she had to take breaks while sitting and walking. He points out that Dr. Bansal made specific reference to the June 2009 event where a resident fell on her as a cause of the herniated disc, but that event happened after the MRI scan which revealed the herniation. Also, he noted that Bansal first agreed with the FCE restrictions and then proceeded to change them. He also cannot understand how activity in excess of his restrictions would place pressure on a herniated disc that was surgically repaired. Dr. Wampler then reiterated his recommended restrictions. (Ex. NN)

Stricklett was also given the opportunity to provide an additional assessment based on Dr. Bansal’s recommended restrictions. She opined that that Dr. Bansal’s restrictions would increase her loss of earning capacity to 55 percent. (Ex. OO)

Apparently, neither party sought out any new views from Dr. Kaspar as to permanent impairment or permanent work restrictions or even when or if Julie may have reached maximum medical improvement from his surgery. As Dr. Bansal provided a permanent impairment rating, I must assume he felt Julie was at MMI, but he did not specifically state this. Dr. Wampler opined before hearing that Julie was already at MMI.

Based on the evidence in this record, I find that Julie has achieved maximum medical improvement from her injury. I find that this occurred prior to hearing on October 20, 2011, one year after her surgery which would be consistent with Dr. Rondinelli’s estimate of when that would occur. Dr. Kaspar was equivocal about when MMI would happen.

Based on the views of Wampler, and Bansal, I find the work injury of May 31, 2009 is a cause of a significant permanent impairment to the body as a whole. A finding of a specific percentage of impairment is unnecessary in this industrial case where we base an award on loss of earning capacity, not just a percentage of loss of use. I cannot accept the view of Dr. Jew that only a portion of this impairment is work related, based on a prior degenerative condition of the back. The prior condition was asymptomatic in the opinion of most doctors and according the credible testimony of Julie. It was only after the three injury incidents at Marian Home that this condition was rendered symptomatic. I find that whether or not her mental problems have prevented a full recovery is irrelevant as an employer takes an employee as is, including any susceptibility to have a worsened result from a work injury than would be the case for other employees as will be explained later in the Conclusions of Law section.

I find that the views of Dr. Wampler as to the proper restrictions to be the most convincing as they are based on a valid FCE. Dr. Bansal’s additional restrictions are based on pain levels and functional levels that are not consistent with her hearing testimony, e.g. at hearing she had no leg pain since the surgery. While Julie may not think she is capable of performing at the FCE level, she has not attempted to do so. She was performing at a light duty level until she was let go by the Marian Home.

Julie is 49 years of age. Although she states that she never fully completed all of her credits in high school and has never received a written diploma document, she admits that she has since obtained the necessary credit and her transcript at the high school indicates graduation from high school. I find she has a high school education. She did receive certification as a CNA, but this record does not show that this certification is now current.

Julie has a wealth of experience in lighter duty jobs. She has been a cashier and stocker at many convenience stores and at various gas stations in Iowa and Texas. She was a cashier and sales attendant at Walgreens. She was a photographer and ran the developing machine at a photo shop, although much of that work is now outdated given the move to digital photography. She was a supply and mail room clerk at a hospital. She was jailer for a brief time in her county of residence. She was a cashier at Big Lots. She was employed the state of Iowa to be a home health aide and worked in home health care before going back to the Marian Home after re-certification as a CNA.

Although Julie remains unemployed, I do not find this is be evidence of total disability. Julie has not shown that he is incapable of full-time light or sedentary work or that such work is not available to her. She has not been shown to have done a reasonable job search in her area of residence and although some retraining may be necessary, there are jobs available to her according to Stricklett and she has not applied for any of the jobs identified. Her claim that she cannot do these jobs with her training and experience is less convincing as a result.

However, even Stricklett admits that based on the FCE, she is still industrially disabled. I disagree that she is only 25 percent industrially disabled. Many of the jobs identified will require some re-training that this would reduce her ability to compete with younger better educated workers who likely will possess more familiarity with electronic equipment and computers. Her age is also a negative factor in competing with younger workers and well as her ability to retrain. The fact remains that her work injury now prohibits a returned to her work as a certified nursing assistant in a nursing home environment, the occupation for which she is best suited given her age, education and work experience. A return to essentially lower skilled clerical work will result in loss of earnings.

From examination of all of the factors of industrial disability, I find that the work injury of May 31, 2009 is a cause of a 40 percent loss of earning capacity.

I find that the work injury of Mary 31, 2009 was a cause of the inability to work in a job similar to the job she held at the time of injury during a period of recovery from her surgery by Dr. Kaspar from May 11, 2009 through October 20, 2011, the date I found her to have achieved maximum medical recovery.

Contrary to the view of Dr. Rondinelli, I find that being able to significantly reduce her pain medications and be off of hydrocodone and hydromorphone as a result of her surgery by Dr. Kaspar is a significant improvement in her health condition from the condition she had during her medical care from the authorized physicians.

CONCLUSIONS OF LAW

I The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. George A. Hormel & Co. v. Jordan, 569 N.W.2d 148 (Iowa 1997); Frye v. Smith-Doyle Contractors, 569 N.W.2d 154 (Iowa App. 1997); Sanchez v. Blue Bird Midwest, 554 N.W.2d 283 (Iowa App. 1996).

The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Supportive lay testimony may be used to buttress the expert testimony and, therefore, is also relevant and material to the causation question. The weight to be given to an expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts the expert relied upon as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. St. Luke’s Hosp. v. Gray, 604 N.W.2d 646 (Iowa 2000); IBP, Inc. v. Harpole, 621 N.W.2d 410 (Iowa 2001); Dunlavey v. Economy Fire and Cas. Co., 526 N.W.2d 845 (Iowa 1995). Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417 (Iowa 1994). Unrebutted expert medical testimony cannot be summarily rejected. Poula v. Siouxland Wall & Ceiling, Inc., 516 N.W.2d 910 (Iowa App. 1994).

The fact that the injury may have been worsened by a pre-existing psychological weakness or condition did not change my opinions under the long established law relating to aggravations of a pre-existing condition. An employer takes an employee subject to any active or dormant health impairments. A work connected event that more than slightly aggravates the condition is considered to be a compensable injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620; 106 N.W.2d 591 (1960) and cases cited therein. The record is clear that claimant had no significant or permanently disabling back problems before her work injury in this case.

A treating physician’s opinions are not to be given more weight than a physician who examines the claimant in anticipation of litigation as a matter of law. Gilleland v. Armstrong Rubber Co., 524 N.W.2d 404, 408 (Iowa 1994); Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).

The extent of claimant’s entitlement to permanent disability benefits is determined by one of two methods. If it is found that the permanent physical impairment or loss of use is limited to a body member specifically listed in schedules set forth in one of the subsections of Iowa Code section 85.34(2)(a-t), the disability is considered a scheduled member disability and measured functionally. If it is found that the permanent physical impairment or loss of use is to the body as a whole, the disability is unscheduled and measured industrially under Iowa Code subsection 85.34(2)(u). Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 133; 106 N.W.2d 95, 98 (1960).

On the other hand, industrial disability was defined in Diederich v. Tri-City R. Co., 219 Iowa 587, 593; 258 N.W. 899 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability, which is the reduction of earning capacity. However, consideration must also be given to the injured worker’s medical condition before the injury, immediately after the injury and presently; the situs of the injury, its severity, and the length of healing period; the work experience of the injured worker prior to the injury, after the injury, and potential for rehabilitation; the injured worker’s qualifications intellectually, emotionally and physically; the worker’s earnings before and after the injury; the willingness of the employer to re-employ the injured worker after the injury; the worker’s age, education, and motivation; and, finally the inability because of the injury to engage in employment for which the worker is best fitted, Thilges v. Snap-On Tools Corp., 528 N.W.2d 614, 616 (Iowa 1995); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).

The parties agreed in this case that the work injury is a cause of some degree of permanent industrial disability. Consequently, this agency must measure claimant’s loss of earning capacity as a result of her work related physical impairment.

In 2004, Iowa Code section 85.34(2)(u) was amended to read as follows:

In all cases of permanent partial disability other than those hereinabove described or referred to in paragraphs “a” through “t” hereof, the compensation shall be paid during the number of weeks in relation to five hundred weeks as the number of weeks in relation to five hundred weeks as the reduction in the employee’s earning capacity caused by the disability bears in relation to the earning capacity that the employee possessed when the injury occurred.

This change adopts the so-called “fresh start rule.” The fresh start rule is based upon the premise that a worker’s earnings in the competitive labor market at the time of a work injury are reflective of that worker’s earning capacity. If that worker had any physical or mental impairment or any other socio-economic impediment limiting his or her employment prior to a work injury, the impact of that impairment or impediment upon that worker’s earning capacity, absent evidence to the contrary, has already occurred and is reflected in his earnings at the time of injury. Steffen v. Hawkeye Truck & Trailer, File No. 5022821 (App. September 9, 2009).

Industrial loss now is no longer a measure of claimant’s disability from all causes after which we then apportion out non-work causes and leave in work related causes under the full responsibility rule. The percentage of industrial loss now is the loss of earning capacity from what existed immediately prior to the work injury. This means that an already severely disabled person before a work injury can have a high industrial loss because the loss is calculated in all cases from whatever his earning capacity was just before the injury and what it was after the injury, not the loss as compared to a healthy non-disabled person. In other words, all persons start with a 100 percent earning capacity, regardless of any prior health conditions. Id.

The rationale for this approach is that in Iowa as well as other states, the employer’s liability for workers’ compensation benefits is dependant upon that person’s weekly rate of compensation which is a portion of the person’s weekly earnings at the time of injury. Consequently, the impact, if any, of any prior mental or physical disability upon earning capacity is automatically factored into any award of compensation for a work injury and there is no need to further apportion out that impact from any workers’ compensation award. If the injured worker’s wages are high, despite his prior condition, then the condition apparently has not negatively impacted his earning capacity. If they are low, it is likely they are low because of his prior condition and consequently, the employer’s liability is low because of the resulting low rate of compensation. Id.

Although claimant is closer to a normal retirement age than younger workers, proximity to retirement cannot be considered in assessing the extent of industrial disability. Second Injury Fund of Iowa v. Nelson, 544 N.W.2d 258 (Iowa 1995). However, this agency does consider voluntary retirement or withdrawal from the work force unrelated to the injury. Copeland v. Boones Book and Bible Store, File No. 1059319 (App. November 6, 1997). Loss of earning capacity due to voluntary choice or lack of motivation is not compensable. Id.

In the case sub judice, I found that claimant suffered a 40 percent loss of her earning capacity as a result of the work injury. Such a finding entitles claimant to 200 weeks of permanent partial disability benefits as a matter of law under Iowa Code section 85.34(2)(u), which is 40 percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection.

Claimant's entitlement to permanent partial disability also entitles her to weekly benefits for healing period under Iowa Code section 85.34 for her absence from work during a recovery period until claimant returns to work; until claimant is medically capable of returning to substantially similar work to the work she was performing at the time of injury; or, until it is indicated that significant improvement from the injury is not anticipated, whichever occurs first. I found that the work injury was a cause of her time off following her surgery until the time she achieved maximum healing. Healing period benefits shall be awarded accordingly.

II. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. Claimant is not entitled to a monetary award for unpaid medical expenses from this agency or any monetary judgment for such expenses from the district court. The claimant is only entitled to an order from this agency directing the defendants only reimburse claimant for any expenses paid by claimant and to either pay the unpaid expenses directly to the provider or hold claimant harmless from those unpaid expenses. Rethamel v. Havey, 715 N.W.2d 263 (Iowa 2006); Krohn v. State, 420 N.W.2d 463 (Iowa 1988).  

In the case at bar, the only dispute is claimant’s entitlement to unauthorized care under the direction of Dr. Kaspar. There is no dispute that that this care was not authorized and that a surgical assessment by authorized providers was offered to claimant. However, claimant is able to obtain reimbursement for authorized care if that care was of benefit to claimant and to the employer. Even when there has been no abandonment of care and liability is admitted, an injured worker may be reimbursed for unauthorized medical care upon a showing that the unauthorized care was successful and beneficial Haack v. Von Hoffman Graphics, File No. 1268172 (App. July 31, 2002). In this case, I found that the care and surgery by Dr. Kaspar provided a significant benefit to both claimant and defendants as she is able to function at a more employable level as shown by the FCE. Prior to surgery she clearly was in no condition to be employed in any capacity given her heavy use of narcotic pain medications.

Defendants also attack the reasonableness of Dr. Kaspar’s care. However, the only person to disagree with the surgery was Dr. Wampler who is not an orthopedic surgeon. While Dr. Rondinelli felt that the surgery provided only minimal benefits as far as functionality, he did not state that it was unreasonable or unnecessary. It is said that “actions speak louder than words.” When a licensed physician prescribes and actually provides a course of treatment, doing so manifests the physician’s opinion that the treatment being provided is reasonable. A physician practices medicine under standards of professional competence and ethics. Knowingly providing unreasonable care would likely violate those standards. Actually providing care is a nonverbal manifestation that the physician considers the care actually provided to be reasonable. A verbal expression of that professional opinion is not legally mandated in a workers’ compensation proceeding to support a finding that the care provided was reasonable. The success, or lack thereof, of the care provided is evidence that can be considered when deciding the issue of reasonableness of the care. A treating physician’s conduct in actually providing care is a manifestation of the physician’s opinion that the care provided is reasonable and creates an inference that can support a finding of reasonableness. Jones v. United Gypsum, File 1254118 (App. May 2002); Kleinman v. BMS Contract Services, Ltd., File No. 1019099 (App. September 1995); McClellon v. Iowa Southern Utilities, File No. 894090 (App. January 1992). This inference also applies to the reasonableness of the fees actually charged for that treatment.

The expenses of the care of Dr. Kaspar set forth in Exhibit 8 will be awarded accordingly.

ORDER

1. Defendants shall pay to claimant two hundred (200) weeks of permanent partial disability benefits at the stipulated rate of two hundred fifty-three and 36/100 dollars ($253.36) per week from October 21, 2009.

2. Defendants shall pay to claimant healing period benefits from March 11, 2009 through October 20, 2011, at the stipulated rate of two hundred fifty-three and 36/100 dollars ($253.36) per week.

3. Defendants shall pay the medical expenses listed in Exhibit 8, totaling ninety-two thousand one hundred sixty-three and 43/100 dollars ($92,163.43). Defendants shall reimburse claimant for her out-of-pocket medical expenses in the amount of one thousand two hundred ninety-three and 53/100 dollars ($1,293.53) and shall hold claimant harmless from the remainder of those expenses.

4. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for benefits previously paid in a manner consistent with Swiss Colony, Inc. v. Deutmeyer, 789 N.W.2d 129 (Iowa 2010).

5. Defendants shall pay interest on unpaid weekly benefits awarded herein pursuant to Iowa Code section 85.30.

6. Defendants shall pay the costs of this action pursuant to administrative rule 876 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter.

Signed and filed this _____26th_____ day of March, 2012.

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Copies to:

Janece M. Valentine

Attorney at Law

809 Central Ave., Ste. 415

Fort Dodge, IA 50501-3916

jvalentine@

Thomas M. Plaza

Attorney at Law

PO Box 3086

Sioux City, IA 51102-3086

thomas.plaza@

LPW/srs

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