BEFORE THE IOWA WORKERS’ COMPENSATION …



before the iowa workers’ compensation commissioner

______________________________________________________________________

:

PATRICIA A. CONSOLVER, :

:

Claimant, :

:

vs. :

: File No. 1133657

VALLEY WEST OIL COMPANY, :

: R E M A N D

Employer, :

: D E C I S I O N

and :

:

HERITAGE INSURANCE/WEST BEND :

MUTUAL INSURANCE, :

:

Insurance Carrier, :

Defendants. :

______________________________________________________________________

This matter has been remanded to the agency by the Iowa District Court Polk County. In its December 20, 1999, ruling and order, the District court remanded this matter to the agency to specify those portions of the deputy workers’ compensation commissioner’s arbitration decision which are adopted as the final decision of the agency. In addition, the commissioner was instructed to prepare findings of fact and conclusions of law. This decision will comply with the ruling and order of the district court but should not be interpreted as inconsistent with the holding in Bridgestone/Firestone v. Accordino, 561 N.W.2d 60 (Iowa 1997). For the sake of ease of understanding this remand decision, the findings of fact and conclusions of law will be stated below without specifying whether they were contained in the arbitration decision.

ISSUE

The ultimate issue on remand is whether claimant sustained a compensable work-related injury on or after April 1, 1995.

findings of fact

Patricia Consolver, claimant (claimant), began working for Valley West Oil Company in 1988. (Joint Exhibit 1, page 13) She began as a cash register operator and was also required to stock coolers and do clean up. She spent as much as seven to seven and one-half hours in an eight- to nine-hour day operating the cash register. (Jt. Ex. 1, p. 14) Claimant testified that in October 1993 she began having problems with her right arm, hand, and elbow. (Jt. Ex. 1, p. 17) She first sought medical treatment for the condition in March or April 1994. She described the type of pain she was having as sharp burning pain that was located at the top of her wrist when her hand flexed. The pain shot up her knuckles and into her elbow. (Jt. Ex. 1, p. 17) She was diagnosed as having tendonitis in the elbow. The elbow problem flared-up at the same time as her hand and wrist problem. (Jt. Ex. 1, p. 17)

The vast majority of claimant's medical treatment has been provided by Sinesio Misol, M.D. Dr. Misol first saw claimant on June 28, 1994. (Jt. Ex. 3, p. 5) In August 1994 Dr. Misol diagnosed the claimant as suffering from a repetitive overuse type syndrome as well as epicondylitis of the right elbow. (Jt. Ex. 3, p. 6) Dr. Misol referred claimant to an associate, Jill Meilahn, D.O., who made no different diagnosis than Dr. Misol. (Jt. Ex. 3, p. 9) The repetitive use syndrome has caused pain in the claimant's right fingers, hand, wrist, and elbow. Defendant employer Valley West Oil Company and Heritage Mutual Insurance Company admit an injury on June 14, 1994. The medical evidence supports this conclusion. The claimant had sought medical treatment from her family physician and was subsequently referred to Dr. Misol. Dr. Misol ran a number of diagnostic tests, including an EMG, nerve conduction studies and eventually a bone scan, all of which were negative. The claimant continues to have pain in her right fingers, hand, wrist, and arm. Physical therapy was not effective in relieving her symptoms. In June 1994 Dr. Misol placed lifting restrictions on claimant that include no lifting except when absolutely necessary.

Defendant employer has accommodated and complied with claimant's restrictions. While the claimant continues to work as a cash register/stocker, her job title has changed, (she is now store manager) although her duties have not. Claimant gets help from coworkers to do heavy lifting or to do any of the stocking. The restrictions that claimant has against lifting have remained the same since June 1994. (Jt. Ex. 1, p. 46) When Dr. Misol saw claimant in 1995 the only reason was that claimant needed a new wrist splint. (Jt. Ex. 3, p. 10)

Insurance coverage changed for Valley West Oil Company, which precipitated this case, on April 1, 1995. On that date claimant alleges a second injury. Nothing happened on April 1, 1995, except defendant employer’s insurance coverage changed. The evidence does not support a finding that the claimant sustained a second injury on April 1, 1995. Notwithstanding Heritage’s vigorous arguments to the contrary, there is no indication that claimant has sustained a second injury. Her condition, as it existed on June 14, 1994, was exactly the same as it existed on April 1, 1995. Claimant testified that her condition has deteriorated as she does or does not use her arm. (Jt. Ex. 1, p. 43) Her activities still cause the same problems. (Jt. Ex. 1, p. 38) Dr. Misol specifically testified that in February 1996 the problems for which he was treating the claimant were the exact same problems for which he initially treated her. (Jt. Ex. 3, p. 16) Claimant has no new symptoms or diagnoses from Dr. Misol.

Claimant was seen for an independent medical examination by William C. Koenig, Jr., M.D. Dr. Koenig’s diagnosis differs a small degree from Dr. Misol’s, in that he believes that the claimant has radial neuropathy of the right elbow. However, the opinion of Dr. Koenig cannot establish a second injury date, because his opinion is that the radial neuropathy, if claimant in fact does suffer from that, developed at the same time that her lateral epicondylitis developed. (Jt. Ex. 2, p. 11)

The claimant has also been seen and evaluated by William Blair, M.D. Dr. Blair disagrees with Dr. Koenig’s diagnosis of radial neuropathy, but does concur with Dr. Misol that the claimant has sustained right later epicondylitis (which is resolving) and left lateral epicondylitis (which is mild), together with dorso-radial wrist pain of an unknown etiology and possible TFC defect. (Ex. 5, p. 49) He has not recommended surgery.

Claimant has made consistent complaints of right wrist, hand, and elbow pain. Dr. Misol and Dr. Blair concur in the diagnosis of a cumulative trauma disorder. Both Dr. Misol and Dr. Blair specifically indicate that the right elbow is involved and that surgery is not indicated. Each physician has diagnosed epicondylitis. Dr. Misol specifically stated that the problems he has treated the claimant for all along are the ones that he originally noted in June 1994. The claimant's restrictions were in place prior to April 1, 1995, the date that West Bend’s policy became effective.

Dr. Koenig also agrees with Dr. Blair and Dr. Misol that claimant has lateral epicondylitis, but he also diagnoses an additional condition of radial neuropathy. This is highly unlikely, given Dr. Blair’s testimony and in light of the fact that Dr. Blair was the last physician to see and evaluate claimant in November 1997. Based on the complaints that the claimant described to Dr. Blair in November 1997, he finds it unlikely that she would have radial neuropathy. In any event, Dr. Koenig’s testimony is clear that if claimant does have radial neuropathy, it developed at the same time that her lateral epicondylitis did, which is June 14, 1994, prior to West Bend’s policy taking effect.

There is no doubt that claimant has a disability that manifested here long prior to April 1, 1995. The claimant knew she was hurt and she knew that it was work that caused her injury prior to April 1, 1995. When the claimant received permanent work restrictions from Dr. Misol in June 1994, it was apparent to her, as a reasonable person, that she had sustained an injury at work and that injury had resulted in permanent disability, that is claimant's inability to lift as she once had.

Dr. Koenig has offered an impairment rating of claimant that is not credible, as it is based on loss of range of motion. Dr. Blair noted in his last visit with claimant that she had full range of motion. Dr. Misol, in his deposition, perhaps best estimates claimant's impairment rating at 10 percent. Dr. Misol, as claimant's primary treating physician, is in the best position to offer an opinion of claimant's permanent disability, particularly in light of the fact that is Dr. Misol who imposed permanent work restrictions upon the claimant.

West Bend Mutual Insurance Company has paid all of claimant's medical bills.

CONCLUSIONS OF LAW

The issue to be determined is whether claimant sustained a compensable injury on or after April 1, 1995, which arose out of and in the course of her employment.

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. 14(f).

A personal injury contemplated by the workers' compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something which acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934). An occupational disease covered by chapter 85A is specifically excluded from the definition of personal injury. Iowa Code section 85.61(5); Iowa Code section 85A.8.

The evidence does not support a conclusion that claimant sustained an additional separate injury on April 1, 1995. The only thing that happened on that date is that the insurance coverage changed for defendant employer. Claimant's injury had manifested long prior to April 1, 1995. The fact that that insurance coverage changes is not, in and of itself, enough to establish a new injury for the claimant. Claimant has failed to prove by a preponderance of the evidence that she sustained an injury on April 1, 1995. Claimant’s injury clearly manifested itself by June 14, 1994. Her condition restrictions and diagnosis did not change after April 1, 1995. Dr. Misol, claimant’s treating doctor thought claimant’s problems in February 1996 were the same problems she had in June 1994. It has not been proved that claimant suffered a compensable injury on or after April 1, 1995.

The Iowa Supreme Court has rejected the argument that a compensable injury does not occur until the claimant has received a permanency rating. George A. Hormel & Co. v. Jordan, 569 N.W.2d 148, 152 (Iowa 1997). The Iowa Supreme Court has also held that a claimant may not establish a cumulative injury claim by merely asserting that the disability following a work injury was increased by subsequent aggravating work activities. To show a cumulative injury there must be evidence that a claimant suffered a distinct and discreet disability attributable to alter work activities rather than an aggravation of the original injury. Ellingson v. Fleetguard, Inc., 599 N.W.2d 440, 444 (Iowa 1999).

The final matter to be discussed is liability among the insurance carriers pursuant to Iowa Code section 85.21.

Iowa Code section 85.21 provides:

1. When liability is finally determined by the industrial commissioner, the commissioner shall order the carriers or employers liable to the employee or to the employee’s dependent or legal representative to reimburse the carriers or employers which are not liable but were required to pay benefits. Benefits paid or reimbursed pursuant to an order authorized by this section do not require the filing of a memorandum of agreement. However, a contested case for benefits under this chapter or under chapter 85A or 85B shall be maintained against a party to a case or dispute resulting in an order authorized by this section unless the contested case is commenced within three years from the date of the last benefit payment under the order. The commissioner may determine liability for the payment of workers' compensation benefits under this section.

Because it has been determined that the claimant did not sustain an injury on or after April 1, 1995, which arose out of and in the course of her employment, Heritage Mutual Insurance Company and defendant employer are ordered to repay to West Bend Mutual Insurance Company any and all payments made on her behalf or to her for an alleged injury of April 1, 1995, including medical benefits.

ORDER

THEREFORE, IT IS ORDERED:

That defendants, Valley West Oil Company and Heritage Mutual Insurance Company pay claimant twenty-five (25) weeks of permanent partial disability benefits at the stipulated rate of one hundred ninety-three and 21/100 dollars ($193.21) per week commencing on June 15, 1994.

That West Bend Mutual Insurance Company has no liability to claimant.

That defendants Heritage Mutual Insurance Company and Valley West Oil Company pay claimant's accrued benefits in a lump sum and be given credit for benefits previously paid.

That defendants Heritage Mutual Insurance Company and Valley West Oil Company pay interest on the award as governed by Iowa Code section 85.30.

That each defendant insurance carrier pay their own costs in this matter, although Heritage Mutual Insurance Company shall pay claimant's costs. Heritage Mutual shall pay the costs of preparation of the hearing transcript.

That Heritage Mutual Insurance Company reimburse West Bend Mutual Insurance Company for any and all benefits West Bend Mutual Insurance Company has paid on behalf of claimant.

That Heritage Mutual Insurance Company file claim activity reports as required by the agency.

Signed and filed this ______ day of June, 2000.

____________________________

CLAIR R. CRAMER

CHIEF DEPUTY WORKERS’

COMPENSATION COMMISSIONER

Copies To:

Mr. Dennis L. Hanssen

Attorney at Law

2700 Grand Avenue STE 111

Des Moines IA 50312

Mr. Roger L. Ferris

Attorney at Law

700 Walnut Street STE 1600

Des Moines IA 50309

Ms. Vicki L. Seeck

Attorney at Law

600 Union Arcade Bldg

111 E Third St

Davenport IA 52803

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download