BEFORE THE IOWA WORKERS’ COMPENSATION …



BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER

______________________________________________________________________

:

ROBIN L. KINGSLEY, :

: File No. 5034295

Claimant, :

:

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

:

SCOTT COUNTY IOWA, : D E C I S I O N

:

Employer, :

Self-Insured, :

Defendants. : Head Note No.: 1803

______________________________________________________________________

STATEMENT OF THE CASE

Robin Kingsley, claimant, filed a petition in arbitration seeking workers’ compensation benefits against Scott County, Iowa, self-insured employer, arising out of work injuries which occurred on October 23, 2010. The case was heard on October 10, 2012, in Davenport, Iowa, and considered fully submitted on the same.

The evidence in this case consists of the testimony of claimant; and claimant’s exhibits A through E; and defendants’ exhibit 1 through 49.

ISSUES

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

2. The extent of claimant’s scheduled member disability;

Preliminary Matters

Defendant objected to the late report of Dr. Milas, provided on September 28, 2012, regarding claimant’s shoulder turning the case from a scheduled member injury to one industrial in nature. The notice of service indicates that the report was not served on defendants until October 1, 2012. Claimant moved to keep the record open to allow the defendant to, “have Claimant examined by a doctor of Claimant’s choice for purposes of evaluating and rating the condition of her shoulders and to allow Claimant to depose such doctor,” allow the defendants an opportunity to depose Dr. Milas; and allow Claimant to depose Dr. Milas to address any foundation objections defendants may have regarding Dr. Milas’ two reports. The rules require evidence from expert witnesses to be provided at least 30 days before hearing. Hearing was scheduled for October 3, 2012, but was continued until October 10, 2012, due to a failure to obtain a court reporter.

For either date, Dr. Milas’ September 28, 2012, opinion fell far outside the 30 day time period required by Rule 876 IAC 4.19(3)(c ) and the dictates of the hearing report. No written modification exists and defendants object on the basis of untimeliness and prejudice. Defendants have no way of rebutting Dr. Milas’ opinions at this late date. Claimant amended her petition in April of 2012 to add the shoulder complaint. She had several months in which to obtain opinions and conclusions about her shoulder from Dr. Milas who issued a previous report about claimant’s condition on March 16, 2012.

Leaving the record open to accomplish a medical examination and at least two depositions suggest that this case is not ripe for hearing. Claimant was informed she was welcome to dismiss and re-file. Absent that, this is not a situation were any prejudice by a late filing is easily cured. Deadlines are not to be dismissed haphazardly and without reason. Here the undue prejudice caused by the late filing is sufficient grounds upon which to sustain claimant’s objection as to the report of Dr. Milas. The request to leave the record open is denied. At the hearing, the claimant withdrew the shoulder claim, proceeding solely on the issue of the extent of claimant’s scheduled member injury.

The second issue presented by the claimant is a request to take judicial notice of a special case settlement claimant received on her right arm. Rule 876 IAC 17A.14 allows the agency to take official notice of all facts which judicial notice may be taken. Irrelevant, immaterial or unduly repetitious evidence should be excluded. Rule 876 IAC 17A.14(1) The only facts are that claimant had a compromise settlement for the right arm. The terms of the settlement are not adjudicative facts. Iowa Rules of Civil Procedure 5.201

STIPULATIONS

The stipulations of the hearing report are adopted herein.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Robin Kingsley, claimant, is a 58 year old woman at the time of hearing.  She graduated from high school in 1972. Her grades were slightly above average. She took some classes through Scott Community College in customer service and dealing with the public.

Claimant is right hand dominant.

Claimant began working for Scott County in 1987. She went into the auditor’s office and worked as Plat Room Specialist since 1989. Up until 2003, the work required quite a bit of heavy lifting because the books weighed between 15 and 40 pounds. Claimant estimated that one would lift a plat book 100 times a day and write cursive notations in the plat books. In 2003, the auditor’s office moved to a computerized system. They continued to use the plat books for another eight years after the move to computers. Claimant’s job duties still require use of plat or transfer or books but she gets assistance from a supervisor or coworker when needed. Photos of the plat and transfer books are in exhibit E. The transfer books are identified by Exhibit E, pages 3 and 4. The transfer books are 17 inches by 12 inches by 3-4 inches deep. (Exhibit E, pages 6-8)

Prior to working in the Auditor’s Office, claimant worked in her father-in-law’s store as a food demonstrator. (Ex. D p. 40)

Claimant had the same injury to her right side which was resolved by settlement. She had no previous injuries to her left side. The only issue is the extent of claimant’s disability.

Where an injury is limited to scheduled member the loss is measured functionally, not industrially. Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983).

The courts have repeatedly stated that for those injuries limited to the schedules in Iowa Code section 85.34(2)(a-t), this agency must only consider the functional loss of the particular scheduled member involved and not the other factors which constitute an “industrial disability.” Iowa Supreme Court decisions over the years have repeatedly cited favorably the following language in the 66-year-old case of Soukup v. Shores Co., 222 Iowa 272, 277; 268 N.W. 598, 601 (1936):

The legislature has definitely fixed the amount of compensation that shall be paid for specific injuries . . . and that, regardless of the education or qualifications or nature of the particular individual, or of his inability . . . to engage in employment . . . the compensation payable . . . is limited to the amount therein fixed.

Our court has even specifically upheld the constitutionality of the scheduled member compensation scheme. Gilleland v. Armstrong Rubber Co., 524 N.W.2d 404 (Iowa 1994). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Graves, 331 N.W.2d 116; 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).

When the result of an injury is loss to a scheduled member, the compensation payable is limited to that set forth in the appropriate subdivision of Code section 85.34(2). Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss of use" of a member is equivalent to "loss" of the member. Moses v. National Union C. M. Co., 194 Iowa 819, 184 N.W. 746 (1921). Pursuant to Iowa Code section 85.34(2)(u) the workers’ compensation commissioner may equitably prorate compensation payable in those cases wherein the loss is something less than that provided for in the schedule. Blizek v. Eagle Signal Co., 164 N.W.2d 84 (Iowa 1969).

Evidence considered in assessing the loss of use of a particular scheduled member may entail more than a medical rating pursuant to standardized guides for evaluating permanent impairment. A claimant's testimony and demonstration of difficulties incurred in using the injured member and medical evidence regarding general loss of use may be considered in determining the actual loss of use compensable. Soukup, 222 Iowa 272, 268 N.W. 598. Consideration is not given to what effect the scheduled loss has on claimant's earning capacity. The scheduled loss system created by the legislature is presumed to include compensation for reduced capacity to labor and to earn. Schell v. Central Engineering Co., 232 Iowa 421, 4 N.W.2d 339 (1942).

Claimant began experiencing pain in her upper extremities, greater on the right than the left, approximately ten years prior. Over the course of her treatment, she had prescriptions for steroids and pain killers, a lidocaine patch, and physical therapy. (Ex 1, p. 1; Ex. 4, p. 1; Ex. 9, p. 1) She consulted with Peter C. Rink, D.O., who referred claimant to Dr. William R. Irey, M.D. (Ex. 7, p. 2) Dr. Irey recommended physical therapy. (Ex. 9, p. 1) Her left arm proceeded to worsen and she underwent a tennis elbow release on September 8, 2010. (Ex. 14, p. 1; Ex. 20, p. 1)

On October 7, 2010, claimant returned to Dr. Irey and on examination, she performed full range of motion on the left but with discomfort. (Ex. 25, p. 1) She returned to work with a 5 pound lifting restriction but was still having some complaints of pain and discomfort. (Ex. 31, p. 1) On January 13, 2011, claimant returned for follow up with Dr. Irey and complained of pain with the left thumb and elbow pain with use. (Ex. 36, p. 1)

On April 21, 2011, Dr. Irey found claimant to be “doing reasonably well.” (Ex. 38 p. 1) Claimant’s lifting restrictions were modified to 10 pound frequent lifting and 20 pound maximum. (Ex. 38 p. 1) Claimant returned for a final check up on July 28, 2011.

HISTORY OF PRESENT ILLNESS: Ms. Kinsley [sic] returns for recheck of her left upper extremity. She continues with limited duty work. She is essentially doing all of her work duties because they have become less strenuous, as they have moved to a more computer-based system. She is doing all of her keyboarding, but that does cause some discomfort in her forearm. She says she is essentially full-time keyboard use at this point. I think she has reached a point at which we can consider that she is at maximum medical improvement following her left tennis elbow release of September 8, 2010.

PHYSICAL EXAMINATION: She has full range of motion of the elbow. She had to be encouraged to exert maximum effort, both with motion and grip, which made this difficult to evaluate. She seems to have reasonably good strength in her hand, although it may not be completely normal. Good strength in abduction. Full pronation and supination. Wound is healed well. Minimal if any tenderness at the incision site.

(Ex. 41, p. 1)

Dr. Irey gave claimant a 10 percent rating for the upper extremity based on the loss of strength calculations. (Ex. 44, p. 1) No ratings were given based on loss of range of motion because claimant generally exhibited good range of motion for Dr. Irey since April of 2011.

Robert W. Milas, M.D., FACS, SC, wrote that claimant has a marked weakness in her left hand grasp which becomes weaker on repeated testing. (Ex. A, p. 2) Based on the loss of grip strength, Dr. Milas assigned a 30 percent impairment rating to the left upper extremity. (Ex. A, p. 2) Dr. Milas also recommended 10 pound weight lifting restriction as well as a prohibition of repetitive motion on the left and the right. (Ex. A, p. 2)

The deposition of Rodney Short, M.D., was in evidence but provided little guidance on the issue of claimant’s functional abilities in her left upper extremity. His deposition testimony is given little weight.

The claimant’s exhibits include a vocational evaluation report by Steve Mootz who addresses claimant’s employability. However, this case concerns an evaluation of claimant’s functional capacity and therefore Mr. Mootz’s opinions and reports offer little value.

Her predominant work is computer related. At times she will assist members of the public but most of the time is spent typing or using her computer mouse.

Her arms hurt during the day and they are very sore at the end of the day. Her left arm has pain that shoots down her elbow into the hand and up into the neck.

She has difficulty lifting anything with the arm. She has to have an assistant grocery shopping. She had two fatty tumors on the inside of her arms related to lifting.

She has numbness and tingling on a near nightly basis. She has to hit her arms to wake them up. She takes 800 mg ibuprofen.

She does her own housework but tasks must be spread across a long period of time. She drops things regularly with her left hand and has some loss of finger dexterity due to pain.

Claimant is not allowed by her employer, the defendant, to lift the books that weigh between 10 and 40 pounds. Plat books weigh 8-12 pounds.

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 alleged injury actually occurred and that it both arose out of and in the course of the employment. Quaker Oats Co. v. Ciha, 552 N.W.2d 143 (Iowa 1996); Miedema v. Dial Corp., 551 N.W.2d 309 (Iowa 1996). The words “arising out of” referred to the cause or source of the injury. The words “in the course of” refer to the time, place, and circumstances of the injury. 2800 Corp. v. Fernandez, 528 N.W.2d 124 (Iowa 1995). An injury arises out of the employment when a causal relationship exists between the injury and the employment. Miedema, 551 N.W.2d 309. The injury must be a rational consequence of a hazard connected with the employment and not merely incidental to the employment. Koehler Electric v. Wills, 608 N.W.2d 1 (Iowa 2000); Miedema, 551 N.W.2d 309. An injury occurs “in the course of” employment when it happens within a period of employment at a place where the employee reasonably may be when performing employment duties and while the employee is fulfilling those duties or doing an activity incidental to them. Ciha, 552 N.W.2d 143.

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).

Based on the greater weight of the evidence, claimant has established a 30 percent loss of function in her left arm. She has regular numbness and tingling on a nightly basis. She is unable to lift objects greater than 5 pounds per her testimony and she is restricted to lifting anything above 10 pounds frequently by her treating physician, Dr. Irey. A 30 percent functional loss is not out of line with Dr. Irey’s findings although his is more conservative. Claimant did have pain with range of motion and thus while her range of motion was full, it was affected by pain.

ORDER

THEREFORE IT IS ORDERED

That defendant is to pay unto claimant seventy-five (75) weeks of permanent partial disability benefits at the rate of four hundred fifty-five and 32/100 dollars ($455.32) per week from July 28, 2011.

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

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

That defendant is to be given credit for benefits previously paid.

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

That defendants shall pay the costs of this matter pursuant to rule 876 IAC 4.33.

Signed and filed this ___2nd _______ day of January, 2013.

________________________

JENNIFER S. GERRISH-LAMPE DEPUTY WORKERS’

COMPENSATION COMMISSIONER

Copies to:

Earl A. Payson

Attorney at Law

1313 N Harrison St.

Davenport,  IA 52803 4904

eappc@

John T. Bribriesco

Attorney at Law  

1313 N Harrison St.

Davenport,  IA 52803 4904

jtblawyer@

Robert L. Cusak

Kelly G. Cunningham

Scott County Attorney’s Office

400 W. 4TH ST

Davenport, IA 52801

Kelly.cunningham@

rcusack@

JGL/kjw

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