BEFORE THE IOWA WORKERS’ COMPENSATION …



BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER

______________________________________________________________________

:

BLAINE BENGTSON, :

:

Claimant, :

:

vs. :

:

IOWA DEPARTMENT OF : File No. 5032279

TRANSPORTATION, :

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

Employer, :

: D E C I S I O N

and :

:

STATE OF IOWA, :

:

Insurance Carrier, :

Defendants. : Head Note No.: 1803

______________________________________________________________________

STATEMENT OF THE CASE

Blaine Bengston has filed a petition in arbitration and seeks workers’ compensation benefits from the State of Iowa, defendant.

This matter was heard by deputy workers’ compensation commissioner, Ron Pohlman, on December 14, 2010, at Council Bluffs, Iowa. The record in the case consists of claimant’s exhibits 10-20; defendant’s exhibits A-C, as well as the testimony of the claimant.

ISSUES

The parties submitted the following issues for determination:

Whether the claimant sustained an injury arising out of and in the course of employment on July 2, 2008;

Whether the injury was the cause of any permanent disability; and,

The extent of claimant’s entitlement to permanent partial disability benefits pursuant to Iowa Code section 85.34(2)(u).

FINDINGS OF FACT

The undersigned, having considered all of the testimony and evidence in the record, finds:

The claimant, at the time of the hearing, was 56 years old. He is a high school graduate and had one year of vocational training and basic electronics. The claimant worked as a stocker in a Napa Warehouse for one year and has worked in farming and construction as well as packing house production.

The claimant began working for the Iowa Department of Transportation in 1985. He sustained injuries to his low back as a result of an automobile accident on the job in 1998. He was paid for a five percent permanent partial disability pursuant to Iowa Code section 85.34(2)(u). The claimant experienced considerable pain lessening as a result of treatment for this injury. At the time of the injury, the claimant rated his pain as 8 on a 10 scale and felt that the pain went down to a 1 or 2 out of 10.

After his work injury, the claimant continued to perform heavy physical labor for the Department of Transportation and lifted up to 100 pounds. His pain became gradually worse up through 2008. The claimant was experiencing pain again at an 8 out of 10 level in 2007. He was performing exercises, taking pain pills and muscle relaxers to alleviate his pain. His activities outside of work were limited to mowing his yard. He finally reached a point where he could not stand the pain any longer so he told his supervisor, he believes sometime in 2008. On July 2, 2008, the claimant underwent an L5-S1 transforaminal lumbar interbody fusion with pedicle screw instrumentation performed by Wendy J. Spangler, M.D. Dr. Spangler opined May 27, 2010:

I last evaluated Mr. Bengston on December 28, 2009. At that time, he noted occasional back pain with physical activities. This was primarily with very heavy lifting. He had otherwise been back at work and did not have significant symptoms with more moderate activity. He had a CT scan of the lumbar spine which demonstrated intact bridging fusion at the L5-S1 level. At that time, I released Dr. Bengston.

I believe that he reached maximum medical improvement as of December 28, 2009.

I do not anticipate any specific treatment needed for the L5-S1 fusion. However, Mr. Bengston may require intermittent treatment in the future for recurrent bouts of back pain.

I restricted Mr. Bengston from prolonged lifting over 50 pounds and any lifting over 100 pounds. I also recommended limiting walking on uneven surfaces, prolonged stooping or crawling, and use of equipment such as a jackhammer or other jarring type activities.

Mr. Bengston qualifies for an impairment rating of 23% impairment of the whole person. This is based on criteria for DRE Lumbar Category 4, Table 15-3, on page 384 of the American Medical Association Guides of Evaluation of Permanent Impairment, Fifth Edition.

(Exhibit 17, pages 1-2)

Dr. Spangler causally connects the claimant’s back surgery in 2008 to an aggravation of his 1998 injury caused by the claimant’s heavy physical work for the Department of Transportation.

The claimant returned to his job January 31, 2009 and has been working full time ever since. The claimant is careful in how he performs his job and does not operate a jackhammer. Other employees on the crew perform this work. The claimant plans to continue his job with the Department of Transportation but he does not think that he would be able to get another physical job if he were to leave his job with the Department of Transportation.

REASONING AND CONCLUSIONS OF LAW

The first issue is whether the claimant sustained an injury arising out of and in the course of his employment on July 2, 2008.

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 Elec. 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 opinion of Dr. Spangler, the claimant’s treating physician, establishes that the claimant sustained an injury as a result of his cumulative job duties aggravating his 1998 injury. The claimant has established that he sustained an injury arising out of and in the course of his employment on July 2, 2008, which was the date that the claimant required surgery to treat this cumulative injury.

The next issue to be determined is whether the injury was the cause of any 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).

Dr. Spangler has opined that the claimant has a 23 percent functional impairment and has imposed significant work restrictions. The restrictions are permanent and the record establishes that the claimant has sustained permanent disability.

The next issue is the extent of claimant’s entitlement to benefits pursuant to Iowa Code section 85.34(2)(u).

The claimant has substantial functional impairment as a result of his work injury. He also has work restrictions that are significantly limiting his ability to perform heavy physical labor, which has consisted of most of his work life. The claimant has sustained a significant industrial loss. Considering these and all factors of industrial disability, it is concluded that the claimant has sustained a 40 percent industrial loss. Pursuant to Iowa Code section 85.34(7), the parties have stipulated the defendant is entitled to a five percent credit. Thus, the claimant is entitled to 175 weeks of permanent partial disability benefits commencing January 1, 2009, which is the stipulated date of commencement by the parties.

ORDER

THEREFORE, IT IS ORDERED:

Defendant shall pay claimant one hundred seventy-five (175) weeks of permanent partial disability benefits commencing January 2, 2009 at a weekly rate of five hundred forty and 20/100 dollars ($540.20).

Accrued benefits shall be paid in lump sum together with interest pursuant to Iowa Code section 85.30 with subsequent reports of injury filed as directed by this agency.

Defendant shall pay claimant 26.143 weeks of healing period benefits for the period from July 2, 2008 through January 1, 2009, at the weekly rate of five hundred forty and 20/100 dollars ($540.20).

Defendant shall receive credit for benefits previously paid.

Signed and filed this ______28th_______ day of January, 2011.

________________________

RON POHLMAN DEPUTY WORKERS’

COMPENSATION COMMISSIONER

Copies to:

Jon H. Johnson

Attorney at Law

PO Box 670

Sidney, IA 51652-0670

johnsonlaw@

Deborah M. Stein

Assistant Attorney General

Special Litigation

Hoover State Office Bldg.

Des Moines, IA 50319-0001

dstein@ag.state.ia.us

RRP/srs

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