STATEMENT OF THE CASE



before the iowa WORKERS’ COMPENSATION commissioner

______________________________________________________________________

:

MARILYN WHITMORE MORSE, :

:

Claimant, :

: File No. 1073504

vs. :

: ARBITRATION

MERCY MEDICAL CENTER, :

: DECISION

Employer, :

Self-Insured, :

Defendant. : Head Note No.: 2501

______________________________________________________________________

STATEMENT OF THE CASE

This is a proceeding in arbitration that claimant, Marilyn Morse, has brought against the self-insured employer, Mercy Medical Center, to recover medical benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on December 23, 1993.

This matter came on for hearing before the undersigned deputy workers' compensation commissioner at Cedar Rapids, Iowa on June 30,2004. The record consists of the testimony of claimant, as well as of claimant’s exhibits 1 through 10 and defendant’s exhibits A through F.

ISSUE

The stipulations of the parties contained within the hearing report filed at the time of hearing are accepted and incorporated into this decision by reference to that report.

The only issue remaining to be decided is whether section 85.27 entitles claimant to payment for medical treatment she received for care of her low back and bilateral lower extremities, including her hips and thighs.

FINDINGS OF FACT AND ANALYSIS

The undersigned deputy workers' compensation commissioner, having heard the testimony and considered the evidence, finds:

Claimant is a 60 year-old woman who initially injured her right foot on December 23, 1993 when she fell off a stool in the course of her employment.

Martin Roach, M.D., performed an open reduction/internal fixation of commuted fracture of claimant’s right os calcis with bone graft on December 31,1993. The operative report states: "[t]he seral[sic] nerve was protected in the proximal end of the wound, but was taken up with a flap." While claimant has characterized this sentence as denoting an injury to the sural nerve, the record contains no explanation of the medical significance, if any, of the quoted sentence.

Claimant apparently recovered uneventfully from the original surgery and returned to work for the employer until she was fired for cause in 1997. She subsequently worked in two other positions; one as a licensed practical nurse and the other as a home health nursing assistant where she was once again terminated for cause. Claimant subsequently applied for and is now receiving Social Security Disability income.

Claimant has treated variously for low back pain, bilateral hip pain, greater trochanteric bursitis, and right knee pain. Claimant also has diabetes.

Claimant had a lumbar spine MRI on January 22, 2002. Warren Verdeck, M.D., characterized that as showing spinal stenosis, degenerative changes and a small disc protrusion at L3/4 on the left. (Exhibit 4, page 11) Claimant had a subsequent lumbar MRI on March 26, 2004. Reported findings were consistent with those on the previous study. (Ex. 1, p. 23)

Claimant underwent a MRI of her left hip on March 26, 2004. While edema was noted, claimant had no frank trochanteric bursitis and no suggestion of fracture or stress response. (Ex. 1, p. 21)

Douglas T. Sedlacek, M.D., has provided claimant with injections and medication for pain management. He variously has diagnosed claimant as having a lumbar spondylosis with probable symptomatic neurogenic claudication and as having lumbar degenerative changes with possible facet arthropathies associated with chronic low back pain. (Ex. 1, pp. 6-10)

Claimant presented to Dr. Verdeck on January 15, 2002 with very poorly localized pain in both hips that claimant characterized as shooting down from the ankle to the hip and then down the left side. Dr. Verdeck was uncertain as to whether claimant's symptoms related to radiculopathy secondary to back problems or related to diabetic neuropathy. He referred claimant to Michael J. Rosenfeld, M.D., a neurologist who recommended that claimant obtain nerve conduction studies/EMG of the right lower extremity to screen for diabetic polyneuropathy. (Ex. 4, p. 15) Those studies revealed likely reduced amplitude of the right sural sensory nerve. (Ex. 4, p. 17) Dr. Rosenfeld later stated that claimant's leg and thigh pain could very well be consistent with diabetic polyneuropathy. He felt her right hip pain was likely musculoskeletal. (Ex. 4, p. 18)

Claimant returned to Dr. Rosenfeld on October 14, 2002. She then had significant complaints of back and bilateral leg pain. She advised this physician that her attorney had found out that her initial surgery had damaged her sural nerve and that this was causing symptoms of numbness. (Ex. 4, p. 25) Dr. Rosenfeld subsequently stated: "[a]ttorneys have determined that problems with the examination is[sic] secondary to cutting the right sural nerve." (Ex. 4, p. 27) Dr. Rosenfeld then stated that he did not feel that claimant had significant neuropathy and opined that claimant's problem, apparently a reference to her then chief complaint of back and leg pain, likely was secondary to her back or possibly an orthopedic problem. (Ex. 4, p. 27)

Kevin R. Eck, M.D., also followed claimant. On October 16, 2003, claimant gave Dr. Eck a history of having fallen two or three weeks earlier, landing on the left side, and of having left greater trochanter hip bursa area pain that had increased since the fall. (Ex. 4, p. 35)

On September 11, 2002, Dr. Rosenfeld stated that an injury such as claimant had sustained to her right foot on December 23, 1993 would result in a change in the overall mechanical architecture overtime that would lead to low back and hip pain. (Ex. 4, p. 46)

On September 18, 2002, Dr. Roach stated that it is very difficult to say how much of claimant's sural sensory nerve condition may have been produced by swelling from the original injury and how much of it related to her diabetic neuropathy. He then stated that since claimant apparently had not had significant sensory symptomatology prior to the injury, a certain amount of her neuropathy was associated with that injury. (Ex. 4, p. 47)

Dr. Roach’s opinion in this regard is given little weight as Dr. Rosenfeld, whose medical specialization is in neurology, has opined that claimant’s low back and leg complaints likely do not have a significant neurologic component.

Michael J. Cullen, M.D., a board certified neurologist, evaluated claimant on May 25, 2004. He noted that all major muscle groups in claimant's upper and lower extremities were intact and that claimant had mild vibratory impairment of the lower extremities as well as mild decreased pinprick sensation in both the upper and lower extremities. (Ex. E, p. 3)

Dr. Cullen noted that claimant walked with a stiff leg posture, right approximately equal to left, and that she would stride with a full step on the right and a short stepping with the left foot. Dr. Cullen opined that claimant's complaints were musculoskeletal, referral to both lower extremities, and not related to the December 23, 1993 right foot injury. The doctor based his opinion on claimant’s alteration of gait that the doctor felt was referral to the left lower extremity and not to the right lower extremity. Dr. Cullen also noted that claimant had no complaints or physical findings consistent with sural neuropathy and that sural neuropathy would not result in mechanical right leg pain. (Ex. E, pp. 3-4)

The opinion of Dr. Cullen is given greater weight than the opinion of Dr. Rosenfeld. While both Dr. Cullen and Dr. Rosenfeld practice in the area of neurology, Dr. Cullen is a board certified neurologist. Dr. Rosenfeld apparently is only an associate member of the American Academy of Neurology. Additionally, Dr. Cullen is the only physician who specifically addresses the issue of whether claimant has findings and complaints consistent with sural neuropathology.

It is expressly found that this record does not support a finding that claimant's multiple low back complaints, bilateral hip and thigh complaints and knee complaints are causally connected to her original December 23, 1993 right foot injury.

Claimant does have traumatic degenerative right subtalar joint disease. Dr. Verdeck has related this to claimant's December 23, 1993 injury. (Ex. 4, p. 40) There is no contrary evidence in the record. Arthrosis would certainly not be an unexpected result from a serious fracture. Claimant's right foot arthritic condition is expressly found to result from the December 23, 1993 injury.

Dr. Verdeck has prescribed an ankle lacer and anti-inflammatories to treat this problem. (Ex. 4, pp. 3-10) Any costs associated with treatment of claimant's arthritic condition, including medications, orthotics and therapy certainly would be the defendant’s obligation. Unfortunately, it is not possible to distinguish on this record whether any of the submitted costs actually relate to that condition.

Additionally, this record does not contain evidence as to the issue of whether care claimant received for her right foot arthritic condition was care that claimant requested that the employer provide and that the employer then refused to provide care. In other words, it cannot be determined whether the defendant authorized the care or whether authorization from defendant was unnecessary as defendant had abandoned claimant's care.

For all the foregoing reasons, an order directing that defendant pay claimant specific costs for medical treatment of her right foot arthritis cannot be made.

CONCLUSIONS OF LAW

The issue for determination is whether claimant is entitled to payment of submitted medical costs pursuant to section 85.27.

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

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. Frye v. Smith-Doyle Contractors, 569 N.W.2d 154 (Iowa App. 1997); George A. Hormel & Co. v. Jordan, 569 N.W.2d 148 (Iowa 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).

The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975).

A treating physician’s testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. Weight to be given testimony of physician is a fact issue the workers’ compensation commissioner decides in light of the record of the parties develop. In this regard, both parties may develop facts as to the physician’s employment in connection with litigation, if so; the physician’s examination at a later date and not when the injuries were fresh; his arrangement as to compensation, the extent and nature of the physician’s examination; the physician’s education, experience, training, and practice; and all other factors which bear upon the weight and value of the physician’s testimony. Both parties may bring all this information to the attention of the fact finder as either supporting or weakening the physician’s testimony and opinion. All factors go to the value of the physician’s testimony as a matter of fact not as a matter of law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).

It is concluded that claimant has not established that claimant is entitled to payment of submitted medical costs pursuant to section 85.27 as claimant has not established either that costs submitted are causally related to her original December 23, 1993 injury or that defendant had authorized care received or both.

ORDER

THEREFORE, IT IS ORDERED:

That claimant take nothing further from this proceeding.

That claimant pay the costs of this proceeding as the applicable rule and statutes provide.

Signed and filed this ____28th_______ day of July, 2004.

____________________________

HELENJEAN M. WALLESER

DEPUTY WORKERS’

COMPENSATION COMMISSIONER

Copies to:

Mr. Thomas M. Wertz

Attorney at Law

P.O. Box 849

Cedar Rapids, IA 52406-0849

Mr. Jack C. Paige

Attorney at Law

P.O. Box 1968

Cedar Rapids, IA 52406-1968

HJW/smc

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