BEFORE THE IOWA WORKERS’ COMPENSATION …



BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER

______________________________________________________________________

:

RICHARD WELAND :

:

Claimant, :

: File No. 5035913

vs. :

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

FLEXSTEEL INDUSTRIES, INC., :

: D E C I S I O N

Employer, :

Self-insured, :

Defendant. : Head Note Nos.: 1402.40; 1803

______________________________________________________________________

STATEMENT OF THE CASE

Claimant, Richard Weland, filed a petition in arbitration seeking workers’ com-pensation benefits from Flexsteel Industries, Inc. (Flexsteel), self-insured employer. This case was heard in Des Moines, Iowa, on August 20, 2012. The record in this case consists of claimant’s exhibits 2, 4, 6-7, and 9; defendant’s exhibits A through C; and the testimony of claimant.

ISSUES

1) Whether claimant’s injury is a cause of permanent disability; and if so,

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

At the time of hearing, claimant indicated he had an outstanding medical bill for treatment received on March 17, 2012. (Exhibit 9, page 74) Defendant indicated they did not contest payment of the bill. As defendant did not contest payment of the bill, it is assumed the bill for treatment rendered to claimant on March 17, 2012, found in Exhibit 9, page 74, is paid, or will be paid in the near future. The order in this decision will note defendant’s liability for this bill.

FINDINGS OF FACT

The claimant was 48 years old at the time of hearing. Claimant has worked at Flexsteel since 1987. Flexsteel manufactures furniture.

On January 31, 2011, claimant was using a saw to cut metal. Claimant was pulling cut metal with his right hand. Claimant felt a pop in his right elbow while pulling on a piece of metal.

Claimant was evaluated in February 2011 by Julie Muenster, ARNP, with Tri-State Occupational Health (Tri-State). Claimant had complaints of elbow pain. Claimant had pain on the lateral and medial aspect of the elbow. Claimant was treated with medication and told to ice the elbow. He was evaluated as having a right elbow strain/sprain. (Ex. A, p. 1)

Claimant continued to receive conservative treatment at Tri-State in February of 2011, and was referred to physical therapy. He was restricted to lifting and carrying up to five pounds on the right upper extremity. (Ex. A, pp.4-9)

In March of 2011, claimant was evaluated by Joseph Garrity, M.D., with complaints of continued right elbow pain. Claimant was given a cortisone shot in the right elbow. He had improvement in symptoms after the injection. He was continued on a five-pound lifting restriction. (Ex. A, pp. 10-11)

Claimant returned in follow-up care with Dr. Garrity in March and in April 2011, with continued complaints of pain in the right elbow. An MRI, recommended by Dr. Garrity, showed a severe tearing of the extensor tendon and lateral collateral ligament. Surgery was discussed and chosen as a treatment option. (Ex. A, pp. 12-22)

On May 19, 2011, claimant underwent debridement of the medial and lateral epicondyle. (Ex. A, pp. 27 and 41; Ex. 6, p. 41)

In September 2011, claimant was evaluated by Judson Ott, M.D., with Tri-State. Claimant was four months post-surgery. He was put on a five-pound lifting restriction on the right. (Ex. A, pp. 29-30)

In November 2011, claimant was evaluated by Dr. Ott. Records indicate claimant said he had no tenderness on the medial portion of the elbow, but was still tender over the lateral portion of the elbow. He was assessed as having medial and lateral epicondylitis. (Ex. A, p. 31)

In December 2011, claimant was seen by Dr. Ott. Records indicate claimant had only some tenderness over the medial portion of the elbow. Claimant’s weight restrictions were increased to 15 pounds for two weeks, and then to 25 pounds for two weeks. (Ex. A, p. 32)

In a March 2012 report, Marc Hines, M.D., gave his opinions of claimant’s condition following an independent medical evaluation (IME). Claimant still had pain in the medial and lateral portions of the elbow. Claimant had trouble grasping and lifting. He had difficulty with sleep due to his injury. Claimant was measured to have a 50 percent decrease in grip strength using a Jamar dynamometer. Dr. Hines found claimant had a 20 percent permanent impairment to the right upper extremity due to loss in strength. He also found that claimant had 3.5 percent impairment to the right upper extremity based upon a compression neuropathy. He also found that claimant had a 3 percent permanent impairment to the body as a whole due to pain. He limited claimant to lifting up to 30 pounds on the right. (Ex. 4)

Claimant testified Dr. Hines spent approximately one hour evaluating him. He said Dr. Hines measured his grip strength using a gripping device. He said Dr. Hines also performed pin prick testing on his right upper extremity.

Claimant returned to Dr. Ott on April 2, 2012. Records indicate claimant said he had no pain or tingling in the right upper extremity. Claimant was kept on a 25 pound lifting restriction on the right. (Ex. A, pp. 40-41)

Claimant testified this record was incorrect, and that he still had pain and tingling in his right upper extremity in April 2012. He said he told Dr. Ott and Dr. Garrity that he had continued right arm pain.

Claimant returned to Dr. Garrity on April 11, 2012. Records indicate claimant had minimal pain, and occasionally got a “zinger” that radiated to the fingers on his right hand. He was assessed as having resolved epicondylitis on the right lateral portion, and unresolved on the right medial portion. (Ex. A, p. 42)

In May 2012, claimant returned in follow-up with Dr. Garrity. Records indicated claimant had full range of motion. Claimant indicated he was doing well. Claimant was given a 15 pound lifting restriction on the right. Records indicate claimant was told he would have no permanent impairment, and that he understood this. Dr. Garrity found claimant was at maximum medical improvement (MMI) on June 8, 2012.

Claimant testified at hearing that he does not have full range of motion or strength, and still has pain in his right elbow. He testified Dr. Garrity evaluated his elbow by only touching the top and bottom of the elbow. He said that Dr. Garrity did not do any measuring regarding his elbow pertaining to grip strength or range of motion.

In a May 16, 2012, note, Dr. Garrity found claimant had no permanent impairment from his elbow injury. (Ex. A, p. 46)

Claimant testified he bid out of his old job, because he physically could not perform the work given limitations on his right arm. He said he bid to another job that was less strenuous. He said his new job pays less compared to the job where he was injured. He said he bid to a lower paying, less strenuous job because he did not want to re-injure his right upper extremity.

Claimant said his right arm will not straighten out at the elbow. He said that he can physically force his arm to straighten, but to do so causes pain. Claimant said he still has pain in his right upper extremity. He says he feels he has lost grip strength in his right hand. Claimant takes over-the-counter medication for pain.

CONCLUSIONS OF LAW

The first issue to be determined is if claimant sustained a permanent disability regarding his injury of January 2011.

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).

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).

Claimant injured his right arm in January 2011. The record indicates that in April 2012, approximately 15 months after the injury, claimant was still under restrictions regarding his right upper extremity. (Ex. A, pp. 40-41) At the time of hearing, over one and a half years after the injury, claimant credibly testified he still had loss of strength and range of motion in his right upper extremity. He testified he took a lesser paying job at Flexsteel so he would not re-injure his right upper extremity.

Two experts have given opinions whether claimant’s injury resulted in a permanent disability. Dr. Garrity treated claimant for an extended period of time. He opined, in one sentence in a medical record, that claimant had a “zero percent” permanent impairment to the right upper extremity. Dr. Garrity offered no analysis for this finding. There is no evidence in the record Dr. Garrity performed any testing on claimant to reach his finding that claimant had no permanent impairment. It also appears incongruent that claimant would be under a 25 pound lifting restriction 15 months after his date of injury, yet ultimately be found to have no permanent impairment. Given this record, it is found that the opinions of Dr. Garrity regarding permanent impairment are not convincing.

Dr. Hines evaluated claimant on one occasion for an IME. He provided a detailed report regarding his exam and findings of claimant. The record indicates Dr. Hines measured claimant’s range of motion and strength in his right upper extremity. Given this record, it is found that Dr. Hines’ opinion that claimant’s injury resulted in a permanent impairment is found convincing.

Claimant underwent surgery. He was still under work restrictions 15 months after the date of injury. Claimant took a lesser paying job to protect his right upper extremity. Claimant credibly testified he continues to have loss of strength and range of motion and pain in his right upper extremity a year and a half after the date of injury. Dr. Hines’ opinions regarding permanent impairment are found to be convincing. Claimant has carried his burden of proof in proving his January 2011 injury resulted in a permanent disability.

The next issue to be determined is the extent of claimant’s entitlement to permanent partial disability benefits.

Under the Iowa Workers' Compensation Act permanent partial disability is categorized as either to a scheduled member or to the body as a whole. See section 85.34(2). Section 85.34(2)(a)-(t) sets forth specific scheduled injuries and compensation payable for those injuries. The extent of scheduled member disability benefits to which an injured worker is entitled is determined by using the functional method. Functional disability is "limited to the loss of the physiological capacity of the body or body part." Mortimer v. Fruehauf Corp., 502 N.W.2d 12, 15 (Iowa 1993); Sherman v. Pella Corp., 576 N.W.2d 312 (Iowa 1998). Compensation for scheduled injuries is not related to earning capacity. The fact-finder must consider both medical and lay evidence relating to the extent of the functional loss in determining permanent disability resulting from an injury to a scheduled member. Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 272-273 (Iowa 1995); Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417, 420 (Iowa 1994).

Dr. Hines found claimant had a 20 percent permanent impairment to the right upper extremity based on loss of strength. Claimant credibly testified he has sustained a loss of strength in his right upper extremity. Dr. Hines’ report indicates that he used a Jamar dynamometer to test claimant’s strength. This is corroborated by claimant’s testimony. I am able to follow Dr. Hines’ rating of a 20 percent permanent impairment to the right upper extremity by use of the Guides and by Dr. Hines’ report. Based on this, it is found that claimant has a 20 percent permanent impairment to the right upper extremity.

Dr. Hines also found claimant had a 3.5 percent permanent impairment regarding a compression neuropathy. There is no evidence in the record that claimant has compression neuropathy, other than Dr. Hines’ IME. Based on this, I find the 3.5 percent permanent impairment attributed to a compression neuropathy is unconvincing.

Dr. Hines also found claimant had a 3 percent body as a whole rating based on pain. The Guides indicate that rating for pain, under chapter 18 of the Guides (Fifth Edition) are not to be used when a condition can be rated and evaluated under another method in the Guides. (AMA Guides to the Evaluation of Permanent Impairment, Section 18.3, pages 569 through 570) Dr. Hines already found claimant had a permanent impairment using methods prescribed in the Guides under section 16.8. For this reason, I find that Dr. Hines’ assessment of 3 percent permanent impairment to the body as a whole for pain unconvincing.

Given this record, claimant has proven he sustained a 20 percent permanent impairment to the right upper extremity. Claimant is due 50 weeks of permanent partial disability benefits (20 percent times 250 weeks).

ORDER

THEREFORE IT IS ORDERED:

That defendant shall pay claimant fifty (50) weeks of permanent partial disability benefits at the rate of three hundred seventy-four and 34/100 dollars ($374.34) commencing on June 8, 2012.

That defendant shall pay accrued weekly benefits in a lump sum.

That defendant shall pay interest on unpaid weekly benefits as ordered above as set forth in Iowa Code section 85.30.

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

That defendant shall pay the cost of this matter as required under rule 876 IAC 4.33.

That defendant shall pay the medical bill found in Exhibit 9, page 74 in the record.

Signed and filed this _____5th______ day of October 2012.

Copies To:

James P. Hoffman

Attorney at Law

PO Box 1087

Keokuk, IA 52632

jamesphoffman@

Edward Rose

Attorney at Law

111 E. 3rd St., Ste. 600

Davenport, IA 52801-1596

ejr@

JFC/kjo

-----------------------

JAMES F. CHRISTENSON

DEPUTY WORKERS’

COMPENSATION COMMISSIONER

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