BEFORE THE IOWA WORKERS’ COMPENSATION …



BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER

______________________________________________________________________

:

LILLIAN A. BROWN, :

:

Claimant, :

:

vs. :

: File No. 5040412

TEAM STAFFING SOLUTIONS, :

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

Employer, :

: D E C I S I O N

and :

:

COMMERCE & INDUSTRY :

INSURANCE COMPANY, : Head Note Nos.: 1402.40, 1801,

: 2501, 2502, 4000

Insurance Carrier, :

Defendants. :

______________________________________________________________________

STATEMENT OF THE CASE

Claimant, Lillian Brown, has filed a petition in arbitration seeking workers’ compensation benefits from Team Staffing Solutions, (Team), employer, and Commerce & Industry Insurance Company, insurer, both as defendants. This matter was heard on May 1, 2013 by Deputy Workers’ Compensation Commissioner Erica Fitch in Davenport, Iowa. The record in this case consists of claimant’s exhibits 1 through 5, defendants’ exhibits A-X, and the testimony of claimant and Sarah Fiedler.

By order of delegation of authority, Deputy Workers’ Compensation Commissioner James F. Christenson was appointed to prepare the findings of facts and proposed decision due to the unavailability of Deputy Workers’ Compensation Commissioner Fitch.

I have reviewed the transcript, record, and post–hearing briefs of the parties.  There is nothing in the transcript, record or post-hearing briefs indicating claimant’s demeanor at hearing was a factor that needed to be weighed and considered in rendering a decision.  For this reason, claimant’s demeanor at hearing is not a factor discussed in the decision in this case.

ISSUES

1. Whether the injury is the cause of a temporary disability.

2. Whether the injury is the cause of a permanent disability; and if so,

3. The extent of claimant’s entitlement to permanent partial disability benefits.

4. Whether claimant is due reimbursement for an independent medical evaluation (IME) under Iowa Code section 85.39.

5. Costs.

FINDINGS OF FACT

Claimant was 53 years old at the time of hearing. Claimant went to the 9th grade. She does not have a GED. Claimant has worked at convenience stores, as a machine operator for HON, and as a cafeteria worker for a school. (Exhibit B, page 10; Transcript, pages 37-38)

Claimant’s prior medical history is relevant. In May of 2011 claimant was assessed as having high blood pressure. Blood work was recommended. (Ex. M, pp. 39-40) On August 20, 2011 claimant went to the emergency room with complaints of chest pain. Claimant indicated she thought she was having a heart attack. Claimant was assessed as having a marked sinus bradycardia, or a slow heart rate. She was kept overnight in the hospital. A heart monitor and a follow up cardiac exercise test were recommended. (Ex. N, pp. 42-48, Tr. pp. 33-35) Claimant testified at hearing she was told she had a slow heartbeat and acid reflux. She testified that after she took medication for acid reflux, her symptoms went away. (Tr. pp. 24-25)

Claimant worked a temporary job through Team at the HON furniture manufacturing plant in Muscatine. Claimant testified she had worked at HON prior as an employee. She testified the machine she worked on for HON made the first stage for drawers. The machine was called a D stacker. On October 5, 2011, claimant went into the D stacker to pull out a stuck part. (Tr. pp. 11-14) Claimant became caught in the machine, and a large bar repeatedly came down on her chest. Claimant said she did not recall the accident. Claimant was initially treated by fire department emergency staff. Claimant was foaming at the mouth. She was initially transferred to Trinity Hospital in Muscatine and then airlifted to the University of Iowa Hospitals and Clinics. (Ex 1, p. 2; Ex. O, p. 49)

At the University of Iowa Hospitals and Clinics she was assessed as having a fractured 1st and 2nd rib on the left; a nondisplaced fracture of the transverse process at the C7 vertebrae; and a pulmonary contusion. (Ex. 2, p. 6) Claimant was discharged from the University of Iowa Hospitals on October 12, 2011.

Claimant testified she was off work for her injury from October 5, 2011 through October 31, 2011. She was returned to work at light duty, by Team, at Pearl City Outreach (Pearl). Claimant worked at Pearl from October 31, 2011 until approximately February 1, 2012. (Tr. pp. 46-48)

Claimant was evaluated by Tina Stec, M.D. on November 7, 2011. Claimant had no chest pain or pain in her arms. She had some left arm weakness. She was allowed to work four hours a day. (Ex. U, pp. 73-75)

On November 14, 2011 claimant was evaluated by Robert Chesser, M.D. Claimant had full range of motion in the cervical spine. She had normal electrodiagnostic studies in both upper extremities. (Ex. R, pp. 55-56)

Claimant was evaluated at ORA Orthopedics on November 17, 2011 by Myles Luszczyk, D.O., an orthopedic surgeon. Claimant had improved motor function in her left arm. She had no complaints of pain in her neck. (Ex. Q, pp. 53-54)

On November 18, 2011, claimant returned to University Hospitals and was evaluated by Peter Snyder, M.D., a cardiologist. Dr. Snyder indicated claimant had a sinus bradycardia in August of 2011, but did not get further treatment due to lack of insurance. She was assessed as having stress-induced cardiomyopathy and a myocardial infarction. She indicated she had no cardiac symptoms. Claimant was doing well. (Ex. 2, pp. 11-14)

Claimant returned to Dr. Stec on November 21, 2011. Claimant’s numbness in her left arm had resolved. She had no complaints of pain. She was allowed to return to work for six hours in a sitting position. (Ex. U, pp. 77-78) Claimant returned to Dr. Stec on December 12, 2011. Her strength was back to normal. It was unclear if claimant’s infarction was pre-existing or caused by the work injury. (Ex. U, pp. 80-81)

Claimant returned to Dr. Stec on January 16, 2012 with complaints of neck and chest pain. Claimant’s exam was normal. (Ex. U, pp. 83-84) On January 30, 2012 claimant was returned to work with no restrictions. (Ex. U, p. 86)

Claimant’s job with Pearl ended on or about February 1, 2012. Claimant called Team on February 9, 2012 for another placement. Claimant did not get a job through Team at that time. Claimant testified she did not make any follow-up calls to Team after that. (Tr. pp. 49 and 64)

Claimant returned to Dr. Stec on February 20, 2012. She indicated her chest and left arm pain had resolved. She had increased neck pain after taking panels out of her son’s home. (Ex. U, pp. 90-91)

In a March 22, 2012 evaluation with Timothy Maves, M.D. claimant had full strength in both arms. She had full range of motion in her neck. Claimant complained of neck pain and was given a cervical injection. (Ex. T, pp. 62-64)

On May 30, 2012, claimant saw Dr. Stec. Claimant had resolved cervical and left arm weakness. Claimant was found to be at maximum medical improvement (MMI). (Ex. U, p. 106)

In an August 24, 2012 report Ernest Chiodo, M.D. gave his opinions of claimant’s condition following an IME. Dr. Chiodo is board certified in internal medicine. His exam indicated claimant had a normal heart rate and rhythm. He found claimant at MMI. Claimant had sustained a Takotsubo cardiomyopathy, also known as a stress-induced cardiomyopathy, and had recovered from the condition. He found claimant had no permanent impairment. (Ex. S) Claimant testified Dr. Chiodo spent approximately 10 minutes examining her.

In an October 30, 2012 letter, Dr. Snyder indicated claimant suffered damage to her heart caused by either a cardiac contusion or a stress contusion, as a direct result of her crush injury. He found claimant would be more susceptible to future problems with her heart. He opined claimant would be required to maintain and have medical treatment for high cholesterol and high blood pressure. (Ex. 3, p. 15)

In a November 20, 2012 report, Richard Neiman, M.D. gave his opinions of claimant’s condition following an IME. He recommended claimant have further evaluation for her cardiomyopathy. He found claimant had a 4 percent permanent impairment for the cervical fracture, 6 percent impairment for a disc or soft tissue lesion, and additional permanent impairment for claimant’s loss of range of motion. This resulted in a 13 percent permanent impairment for the body as a whole regarding the cervical injury. (Ex. 1)

In a December 13, 2012 letter, defendants’ counsel gave notice defendants would no longer authorize medical treatment for claimant based on Dr. Chiodo’s, and others, opinions claimant’s condition had resolved. (Ex. L, p. 35

Claimant testified her workers’ compensation benefits were stopped, and she did not receive any notice regarding the termination of benefits. (Tr. p. 13)

She testified she looked for work since leaving Team, but has not been successful. (Tr. pp. 8-9)

Claimant testified that, at the time of hearing, she had neck problems. She said she still had pain and numbness in her left forearm. (Tr. pp. 19-20) At the time of hearing claimant was taking atorvastatin, triamterene and lisinopril for blood pressure and cholesterol. This medication was prescribed by Dr. Snyder. (Tr. p. 26) Claimant testified she still treated with Dr. Snyder, but had only seen him twice since November of 2011. (Tr. pp. 26-27)

Claimant testified no doctor has told her she cannot return to work at any of her prior jobs. (Tr. p. 51)

Sarah Fiedler testified that, during 2011- 2012, she was a claims administrator for Team. She said claimant was not allowed to return to work at HON due to an alleged safety violation. (Tr. pp. 62-63)

CONCLUSION OF LAW

The first issue to be determined is if the injury is the cause of a temporary disability.

The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 6.14(6).

Healing period compensation describes temporary workers’ compensation weekly benefits that precede an allowance of permanent partial disability benefits. Ellingson v. Fleetguard, Inc., 599 N.W.2d 440 (Iowa 1999). Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until the first to occur of three events. These are: (1) the worker has returned to work; (2) the worker medically is capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. Maximum medical recovery is achieved when healing is complete and the extent of permanent disability can be determined. Armstrong Tire & Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 60 (Iowa 1981). Neither maintenance medical care nor an employee's continuing to have pain or other symptoms necessarily prolongs the healing period.

When an injured worker has been unable to work during a period of recuperation from an injury that did not produce permanent disability, the worker is entitled to temporary total disability benefits during the time the worker is disabled by the injury. Those benefits are payable until the employee has returned to work, or is medically capable of returning to work substantially similar to the work performed at the time of injury. Section 85.33(1).

Termination of benefits is legally justified when: 1) the employee has returned to work, or 2) it is medically indicated that significant improvement from the injury is not anticipated, or 3) the employee is medically capable of returning to the same or similar work.  However, even when “(2)” or “(3),” noted above, have occurred, if the employee has not returned to work, weekly benefits cannot be terminated without giving the employee 30 days advance written notice stating the reasons and indicating the right to file a claim with Division of Workers’ Compensation.  Christensen, 554 N.W.2d 254 (Iowa 1996); Auxier, 266 N.W.2d 139.   No such letter is in the record.    

Claimant was found to be at MMI by Dr. Stec on January 30, 2012. Her last day of work at Pearl was on or about February 1, 2012. Failure to provide the “Auxier notice” usually results in an additional 30 days of benefits in a contested case proceeding before the workers' compensation commissioner.  Nelson v Fitzpatrick Auto, File No. 5039313 (Arb. March 20, 2013); Lawyer and Higgs, Iowa Workers’ Compensation Law and Practice, Third Edition, §13-8, page 169.   Based on this record, claimant is entitled to an additional 30 days of temporary total disability benefits commencing on February 2, 2012.

The next issue to be determined is if claimant’s injuries resulted in a permanent disability.

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).

As a result of her injury with Team, claimant sustained two fractured ribs, a fracture of the transverse process at C7 vertebrae, and a pulmonary contusion. (Ex. 2, p. 6)

There is no evidence claimant’s fractured ribs resulted in a permanent impairment.

Regarding the cervical spine, records indicate that in November of 2011 claimant had full range of motion of the cervical spine and no complaints of neck pain. (Ex. Q, pp. 53-54; Ex. R, pp. 55-56; Ex. U, p. 78) In January of 2012, approximately three months after the date of injury, claimant had complaints of neck pain. Medical records from February of 2012 indicate claimant’s increased neck pain coincided with moving panels from her son’s house. (Ex. U, pp. 90-91) In May of 2012 claimant was returned to work with no restrictions. (Ex. U, p. 106)

Two physicians have opined regarding claimant’s impairment regarding her neck. Dr. Chiodo evaluated claimant once for an IME. He found claimant had no permanent impairment to the cervical spine. Dr. Chiodo gave no analysis regarding this opinion. (Ex. S, p. 61)

Dr. Neiman saw claimant once for an IME. He found claimant had a 13 percent permanent impairment based on a range of motion analysis. However, the AMA Guides to the Evaluation of Permanent Impairment, (Fifth Edition) on page 398, section 15-8 specifically indicate the range of motion method of evaluating permanent impairment “…should be used only if the DRE method is not applicable (no verifiable injury)…” See also figure 15-4 of the Guides, page 380, indicating preference for use of the DRE method. Claimant had a verifiable injury. Dr. Neiman gave no analysis why he used the range of motion method to determine claimant’s permanent impairment, while the DRE method appears to be suggested in this situation, by the Guides. For this reason, his opinions regarding claimant’s permanent impairment are not convincing.

Claimant sustained a fracture of the left transverse process at C7 in October of 2011. Records made approximately one month after the injury indicate claimant had no neck pain and full range of motion. Claimant began to complain of neck pain in January of 2012. Records indicate claimant’s neck pain began after moving panels with her son. The opinions of Dr. Neiman are found not convincing. Based on these records, claimant has failed to carry her burden of proof she had a permanent impairment from her cervical spine.

Claimant also sustained a pulmonary contusion. Dr. Snyder, a cardiologist, at the University Hospitals, treated claimant for an extended period. Dr. Snyder opined claimant would need to be monitored and require medication concerning her trauma injury to her heart. (Ex. 3, p. 15)

It is true claimant was assessed as having a slow heartbeat prior to her injury. (Ex. N, pp. 42-48) Defendants suggest Dr. Snyder was unaware of claimant’s sinus bradycardia. (Defendants’ post-hearing brief, p. 8) This is not the case. Records from Dr. Snyder indicate he was aware claimant had a pre-existing problem with a slow heartbeat. (Ex 2, p. 11) He still opined claimant’s pulmonary contusion required continued monitoring and medication. (Ex. 3, p. 15)

Dr. Chiodo, saw claimant once for an IME. He found claimant at MMI and did not require further treatment. (Ex. S)

Dr. Snyder is a cardiologist. He actively treated claimant for an extended period. Given Dr. Snyder’s background and his extensive history with claimant, his opinions regarding claimant’s heart condition are more convincing than those of Dr. Chiodo.

Claimant requires monitoring and medical treatment for her heart condition. No expert has found claimant’s condition is permanent. Given this record, claimant has failed, at this time, to carry her burden of proof, her heart injury resulted in a permanent condition. Defendants are still required to continue to furnish her care, as prescribed by Dr. Snyder, for her heart condition.

Claimant has failed to carry her burden of proof her fractured ribs, her fracture to her cervical spine, or her heart condition, has caused a permanent impairment. For this reason, the issue of claimant’s entitlement of permanent partial disability benefits is moot.

The next issue to be determined is if claimant is due reimbursement for an IME.

Section 85.39 permits an employee to be reimbursed for subsequent examination by a physician of the employee's choice where an employer-retained physician has previously evaluated “permanent disability” and the employee believes that the initial evaluation is too low. The section also permits reimbursement for reasonably necessary transportation expenses incurred and for any wage loss occasioned by the employee attending the subsequent examination.

Defendants are responsible only for reasonable fees associated with claimant's independent medical examination. Claimant has the burden of proving the reasonableness of the expenses incurred for the examination. See Schintgen v. Economy Fire & Casualty Co., File No. 855298 (App. April 26, 1991). Claimant need not ultimately prove the injury arose out of and in the course of employment to qualify for reimbursement under section 85.39. See Dodd v. Fleetguard, Inc., 759 N.W.2d 133, 140 (Iowa App. 2008).

Claimant underwent an IME with Dr. Neiman. The bill for the IME was $1,000.00. (Ex. 5, pp. 20-24) Defendants paid $800.00 towards the IME, but did not pay the remaining $200.00. Defendants contend they should not pay the full amount of the IME because Dr. Neiman references an unrelated knee injury in one paragraph of a five-page report. They also refuse to pay the full fee for the IME, as Dr. Neiman gave no finding of permanent impairment for the heart injury.

The fact Dr. Neiman spent one paragraph of a five-page report does not seem to be reason for failure to pay the remaining $200.00 owed for the IME. Defendants’ rationale for not paying the full IME is arbitrary. Defendants are liable for payment of the additional $200.00 for the IME report.

The final issue to be determined is costs.

Costs are assessed at the discretion of the agency.  Iowa Code section 85.40 Rule 876 IAC3.33(6) provides that claimant may be awarded the costs to obtain no more than two doctors’ or practitioners’ reports.  Claimant submits expenses from the University of Iowa Hospitals and Clinics for medical records. She submits a second billing from Dr. Snyder for a medical report dated October 30, 2012.  Both of these expenses appear to be reasonable and are assessed under Rule 4.33.

ORDER

THEREFORE, it is ordered:

That defendants shall pay temporary total disability benefits for thirty (30) days commencing on February 2, 2012 at the rate of two-hundred fifty-eight and 70/100 dollars ($258.70) per week.

Defendants shall pay accrued weekly benefits in a lump sum.

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

That defendants shall continue to furnish claimant care for her heart condition as prescribed by Dr. Snyder.

That defendants shall pay the additional two hundred and 00/100 dollars ($200.00) towards the IME.

That defendants shall pay costs as detailed above.

That defendants shall file subsequent reports of injury as required by this agency under Rule 876 IAC 3.1(2).  

Signed and filed this ____24th_______ day of February, 2014.

Copies To:

Elliott R. McDonald

Attorney at Law

PO Box 2746

Davenport, IA 52809-2746

Emcdonald3@

Aaron T. Oliver

Attorney at Law

5th Floor, US Bank Bldg.

520 Walnut St.

Des Moines, IA  50309-4119h

aoliver@

JFC/sam

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JAMES F. CHRISTENSON

DEPUTY WORKERS’

COMPENSATION COMMISSIONER

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