BEFORE THE IOWA WORKERS’ COMPENSATION …



BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER

______________________________________________________________________

:

BARBARA ZAGLAUER, :

:

Claimant, :

:

vs. :

: File No. 5031368

MERCY MEDICAL CENTER, :

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

Employer, :

: D E C I S I O N

and :

:

SEDGWICK CMS, :

: Head Note Nos.: 1108; 1700; 1801,

Insurance Carrier, : 1802, 2907

Defendants. : ______________________________________________________________________

STATEMENT OF THE CASE

Barbara Zaglauer, claimant, filed a petition in arbitration seeking workers' compensation benefits from Mercy Medical Center, employer, and Sedgwick CMS, third party administrator, defendants, as a result of an injury she allegedly sustained on March 11, 2008, that allegedly arose out of and in the course of her employment.

This case was heard on November 3, 2010, in Polk County, Iowa. Additional time was allotted to the defendants to submit a supplemental report from Dr. Ken Pollack. This was submitted on November 30, 2010, and evidence was considered closed as of that date. The case was fully submitted on the December 6, 2010 with the simultaneous filing of briefs from the parties. The evidence in this case consists of claimant’s exhibits 1 through 22; defendants’ exhibit A through X; and the testimony of claimant, Barbara Zaglauer, her daughter Tanya Zaglauer, Maureen Allen, a former employee of defendant, and Phil Blumberg manager for the defendant employer.

ISSUES:

The extent of claimant’s industrial disability;

1. Whether claimant is entitled to surgery;

2. Whether claimant is entitled to intermittent healing period benefits; and

3. To what costs is claimant entitled?

4. Whether employer is entitled to a credit and if so, the amount of such credit.

STIPULATED FACTS:

Parties stipulate claimant suffered a rotator cuff tear as a result of her work on March 11, 2008.

FINDINGS OF FACT

Claimant, Barbara Zaglauer, was a 62 year old woman at the time of hearing. She is unmarried with four adult children. She attended St. Joseph’s Academy which is now known as Dowling High School and graduated in 1965. Following high school, she worked various odd jobs. Her husband was in the military and they moved frequently. She was also busy mothering her four young children. After her divorce, she worked as a nurse’s aide at night and cleaned houses outside the home. While her children were at school, she studied for and received her certified nurse’s assistant designation.

At least one of her daughters is estranged from claimant and her one son suffered a brain injury during his last tour in Iraq. Claimant’s past history includes one abusive relationship.

Since receiving her CNA, claimant has worked as a medical assistant, first at family practice clinics and then at Mercy Clinic radiology. She has worked at defendant’s Mercy Clinic radiology facility for the past four years. While working for defendant employer, claimant performed a variety of duties from obtaining patient histories, performing venopunctures, collecting labs, keeping track of the lab results, maintaining the endoscopy machine, and helping to computerize patient charts.

On March 11, 2008, claimant’s foot caught on a carpet and she fell to the ground. Her shoulder became dislocated. (Exhibit 1, page 10) A reduction was done the same day and x-ray reports indicated a successful procedure resulting in anatomic alignment. (Ex. 1, p. 11) Claimant continued to have pain in her right shoulder and while she was informed by a physician’s assistant in the office of Scott A. Meyer, M.D., that such pain was normal, claimant continued to ask for treatment.

On May 7, 2008, an MRI displayed a tear of the rotator cuff. (Ex. 1, p. 14) Dr. Meyer recommended surgical repair of tear and put her on modified work duty. (Ex. 4, p. 8-9) Surgery took place on June 26, 2008, and objectively it looked like claimant was doing well. (Ex. 4, p. 10, 12) Claimant was ordered to undergo physical therapy and was placed on modified work duty with no use of the right arm or shoulder. (Ex. 4, p. 12) Claimant testified that physical therapy did not help her, but instead increased her pain. Her therapy records corroborate her testimony. On August 8, 2008, therapist noted that claimant was in “extreme pain” with exercises. (Ex. 16, p. 15) On September 2, 2008, claimant reported that it was becoming “harder and harder” to raise her arm. (Ex. 16, p. 20)

On October 10, 2008, Cheryl Hochstein, MS, PT wrote to Dr. Meyer that the therapists were concerned that claimant’s injury included a cervical spine nerve issue. (Ex. 16, p. 28) Dr. Meyer sent claimant for an EMG that appeared to be largely negative with no evidence of radiculopathy or braxial plexopathy although the results were somewhat affected by claimant’s inability to tolerate some of the testing. (Ex. 4, p. 16) By December of 2008, claimant’s pain had not abated and she was now reporting numbness in her arm, hands, and even in her face. Dr. Meyer suggested claimant might benefit from a consultation with a neurologist. (Ex. 4, p. 17)

Defendants authorized a consultation with Kenneth L. Pollack, M.D., a pain specialist. (Ex. 6) He noted that claimant did not exhibit any pain behaviors of significance in their first visit on January 7, 2009. (Ex. 6, p. 1) Claimant did display decreased sensation over the distal ulnar distribution. (Ex. 6, p. 2) Dr. Pollack found that some of claimant’s pain was associated with her rotator cuff repair but referred claimant to another physician for an evaluation of the right cubital tunnel. (Ex. 6, p. 2)

Claimant consulted with Ze Hui Han, M.D., for evaluation of her right arm pain. (Ex. 10, p. 1) Dr. Han found claimant had some swelling in the right hand and significant sensitivity to light touch. (Ex. 10, p. 2) In a letter to claimant’s counsel, Dr. Han confirmed that these results would support a finding of right hand complex regional pain syndrome along with significant hair changes and nail changes and reduced range of motion. (Ex. 11, p. 4) It should be noted that a second EMG was performed on March 31, 2009, at the request of Dr. Han which showed no evidence of an ulnar nerve injury. (Ex. 10, p. 3; Ex. 5, p. 2) Dr. Han placed claimant on modified work duty of no use of the right upper extremity. Dr. Han’s opinion does not connect the complex regional pain syndrome with work. He is silent on the causation issue. (Ex. 11, p. 4)

Claimant was then sent to Joseph J. Chen, M.D., at the University of Iowa Hospitals and Clinics. Dr. Chen notes claimant did not appear to be in distress which was consistent with how she presented at all her previous doctors’ appointments. (Ex. 14, p. 4) Based on a review of the records and his own examination, Dr. Chen determined claimant was suffering complex regional pain syndrome along with myofascial neck and low back pain due to her “guarded posture and pain.” (Ex. 14, p. 5) Cassim Igram, M.D., saw claimant briefly in the summer of 2009 and also believed claimant’s neck pain was associated with the work related injury. (Ex. 12, p. 3-4) Dr. Igram later modified his opinion after reviewing medical records from Dr. Chen and Dr. Pollack. (Ex. 13, p. 3) In his later opinion letters, Dr. Igram opined that it was not possible to say to a reasonable degree of medical certainty whether the neck and back pain were associated with the work related injury. (Ex. 13, p. 3-4)

On February 4, 2009, claimant suffered a fall which resulted in fracture to her right fourth finger. This was not reported to Dr. Pollack, Dr. Han or Dr. Chen. Instead the report was made to her endocrinologist, Pierre Theuma, M.D. (Ex. T, p. 4) She did report the fall to her physical therapist. (Ex 17, p. 21)

Currently, claimant treats with Dr. Pollack who provides refills to claimant’s prescription for Neurontin. Claimant testified she could not live without her Neurontin.

In 2009, claimant applied for social security disability. She was found to have met the medical requirements for disability benefits in May 2009, based upon her Meniere’s disease, diabetes, degenerative disc disease, rotator cuff injury, hearing loss, diverticulosis, blood pressure, anxiety and depression. (Ex. 20, p. 2) There is no mention of complex regional pain syndrome. Claimant testified at hearing that she did not claim the right arm complex regional pain syndrome because she was unaware that she could claim the same injury for both social security disability and workers’ compensation benefits. Further, when she applied for social security disability, she had not known the extent of her shoulder injury.

Claimant was offered modified light duty work in line with her restrictions but the jobs offered were typing. She felt that no one at work would listen to her nor did she believe that her employer would abide by the work related restrictions. She refused to accept the work offered. Defendant employer terminated her employment on April 16, 2008, for inappropriate work behavior. Claimant denied telling anyone to “stick it up your ass” but did admit to telling her superiors to “go to hell.” At this time, claimant had been under a disciplinary plan for previous work policy violations.

Claimant evinced some memory loss during the hearing. She could not calculate how old she was two years ago or the ages of her children. She held her face and rocked back and forth during her testimony. She testified that she had doubts Dr. Pollack was taking her complaints seriously. She was tearful through some of her testimony. Her direct testimony was generally consistent with her reports to her medical providers.

On cross examination, claimant’s credibility was seriously challenged. Claimant was confronted with a number of reports of pain and injury to her right side, including her arm, neck and face, which she had not previously reported to her physicians. During testimony, claimant stated she did not recall previous injuries.

Claimant suffered an injury to her right side on April 26, 2000 when she fell down an open area in a closet while at work. (Ex. C, p. 2) In her deposition taken in January 2003, claimant testified that her upper back toward the right spine, her right shoulder, right forearm and right wrist were all injured in that April 26, 2000, fall. (Ex. C, p. 3)

In an independent medical examination report by claimant’s chosen doctor, it was noted that claimant reported radiation of pain and tingling into her face and down into the small and ring finger to her treating doctor, Jeffrey Davick, M.D. (Ex. E, p. 2) She reiterated her complaints to Justin L. Ban, M.D., the independent medical examiner. Under current status, Dr. Ban wrote:

Currently her discomfort varies from a “burning sensation” in the forearm region to a “stabbing or sharp” sensation in the neck and shoulder region. Occasionally this pain radiates into the right side of her face.

(Ex. E, p. 3)

Because of the pain associated with her right side, claimant used her left upper extremity for self care and personal hygiene. (Ex. E, p. 4)

In an April 5, 2003 interrogatory answer, claimant answered that as a result of the injury, she could not “raise right arm without pain in elbow, forearm, and right wrist, shoulder. Occasional numbness in fingers. Right arm and hand swells due to using it. Avoids use of right arm and shoulder below or above. Decreased strength in right arm.” (Ex. D, p. 3) The injury to her right arm was denoted as severe and permanent.

When asked to describe all present medical complaints associated with her right side injury, claimant wrote as follows:

Pain in right shoulder. Ache right side of right arm into the wrist and first two fingers. Swelling of the right arm/shoulder. There is a knot or lump in the right shoulder/arm. Occasional numbness in the 4th and 5th fingers and right wrist. As to the back, upper middle back pain. Worsens with activities such as bending, stooping, and sitting for long periods, walking for long periods, standing for long periods. When sleeping the right shoulder is very painful. Has to sleep on her left side. Emotional, depression. Takes medications to sleep. Numbness in the right leg.

(Ex. D, p. 5)

The right shoulder was treated with injections in 2001. (Ex. Q, p. 15) Her pain continued to the point that a TENS unit was purchased for her. With her release to regular duties, it was noted that her myofascial pain was stable but not absent. (Ex. Q, p. 21)

In her social security application, claimant wrote that she could not work due to “reoccurrences of vertigo, disorientation due to Meniere’s.” (Ex. F, p. 3) Claimant’s work records show sporadic complaints related to dizziness and Meniere's.

It is unclear as to why this information wasn’t provided to the physicians such as claimant’s expert, Sunil Bansal, M.D., or Dr. Chen or Dr. Igram.

Irving L. Wolfe, D.O., undertook an independent medical examination for the social security disability claim. (Ex. F, p. 13) Dr. Wolfe opined claimant could work with limitations. She could lift and carry up to 25 pounds using the left upper extremity on a frequent basis but could not use her right upper extremity to lift and/or carry nor use her right hand to handle objects. She should be able to stand, sit, walk, and move about for one hour at a time before needing to change positions. (Ex. F, p. 17) She should not stoop, climb, crawl or kneel. (Ex. F, p. 17) Dr. Wolfe noticed a discrepancy in the medical records where claimant was initially released with full use of the shoulder in March 2009 and then in April 2009, claimant’s work restrictions were modified due to complex regional pain syndrome. It appears that Dr. Wolfe agreed with the April 2009 work restrictions. The March 2009 release was likely as a result of claimant’s own report that she was feeling better overall and that she could resume all activities at work so long as she was moderating the frequency of lifting, especially overhead. (Ex. 4, p. 19)

Maureen Allen, a former employee of defendant employer agreed that it would be hard to find a job at the clinic if claimant could not use her right arm.

Claimant obtained an opinion from Dr. Bansal on October 1, 2010. (Ex. 15) Dr. Bansal reported claimant’s pain level to average around 7 out of 10. Despite this, claimant appeared at several medical appointments in no apparent distress. Dr. Bansal explained in his deposition that complex regional pain syndrome is a diagnosis given when there is no definable explanation for the pain and dysfunction asserted by a patient. (Ex. 21, p. 3) Signs include soft tissue atrophy, swelling, changes in the skin temperature and color, reduced range of motion. According to Dr. Bansal and Dr. Han, claimant exhibited swelling and decreased range of motion. (Ex. 21, p. 13). She did not exhibit any nail changes, hair growth changes, or changes in the skin texture. Dr. Bansal acknowledged that according to the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, claimant did not meet the diagnosis of complex regional pain syndrome. (Ex. 21, p. 14) Dr. Bansal, however, used the evaluation guidelines of the International Association for the Study of Pain. (Ex. 15)

CONCLUSIONS OF LAW

The first issue to decide is whether depression is an appropriate issue to be determined in this hearing. Claimant had not pled depression as a specific element of damage prior to hearing. In the answers to interrogatories, claimant did not check the blank next to mental injury. (Ex. X, p. 3) However, the medical records are replete with references to depression, particularly the physical therapy records. Claimant reported a sense of “doom”, broke down during therapy more than once. (Ex. 16, p. 21)

Rule 876 IAC 4.35 makes the rules of civil procedure applicable to contested cases before the workers' compensation commissioner.

Iowa Rule of Civil Procedure 1.402(2)(a) states as follows:

“Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading are required.”

Iowa Rules of Civil Procedure 1.402(2)(b) goes on to allow alternative or hypothetical averments.

Defendants are entitled only fair notice of the claim and such does not require a pleading of facts. Doerring v. Kramer, 556 N.W.2d 816 (Iowa App. 1996). Specific theories need not be plead. Sulzberger Excavating, Inc. v. Glass, 351 N.W.2d 188 (Iowa App. 1984). Only a short and plain statement of the claim is necessary. Van Meter v. Van Meter, 1983, 328 N.W.2d 338 (Iowa 1983). This is especially true in an administrative agency such as this agency charged with administering an humanitarian compensation system. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 1177, 38 N.W.2d 161, 163 (1949). The key to pleading in an administrative process is nothing more nor less than opportunity to prepare and defend. Hoenig v. Mason & Hanger, Inc., 162 N.W.2d 188, 192 (Iowa 1968).

Iowa is a notice pleading state and depression is sequelae to the original injury. While depression may not have been pled, there was sufficient notice in the records that depression may be a component of the claim. The claimant’s motion to conform the pleadings to the records is granted.

The next question is whether claimant fulfilled her burden of proof in showing that depression affected her ability to work.

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.

Claimant admitted that she had anxiety in the past but that what she feels now is depression unlike anything she has experienced previously. Her current attitude has resulted in at least one of her daughters refusing to have regular contact with claimant.

Claimant admitted to being abused by her husband but claimed she was not depressed after she left her husband nor has she taken any antidepressants until after her work related injury. She testified she did not seek out any counseling or therapy in the past. Claimant testified that she knows the difference between “depression and severe sadness and anxiety”. For her, depression causes her to stop functioning.

Claimant testified that Dr. Chen was the first doctor to prescribe antidepressants for her. Dr. Chen was not aware of claimant’s past at the time the medication was prescribed. The suggested is that Dr. Chen prescribed the antidepressants solely related to the emotional malaise arising out of the complex regional pain syndrome.

However, physical therapy notes that claimant was depressed because of family problems, slow recovery and work comp process. (Ex. 16, p. 17) Further, claimant did have a prescription for Valium which, Dr. Chen noted, was to be taken when she had “attacks of Meniere’s”. (Ex. 14, p. 3) In her work records, it is noted that claimant was suffering depression in 2005 for which she sought counseling and had been taking medication. (Ex. G, p. 9)

Her daughter, Tanya Zaglauer, testified that her mother has become increasingly painful to deal with. Claimant is quicker to anger and full of complaints. Ms. Zaglauer testified that her mother is a different person in the recent months than she was prior to her 2008 injury.

There is no mental health specialist tying claimant’s depression to her current disabled state. Dr. Bansal, claimant’s independent medical examiner, practices occupational medicine, not mental health care. (Ex. 21, p. 2) Further, Dr. Bansal attributes claimant’s depression to pain only but is unaware of her past spousal abuse; her estrangement from her daughter; her son’s brain injury; her frustration with her Meniere’s disease; her work place problems or her past complaints and treatment of depression. In fact, Dr. Bansal notes that “when questioned her stressors are all directly and/or indirectly related to her injury, lack of improvement in right arm functionality, development of a chronic pain syndrome, and inability to pursue further treatment.” (Ex. 15, p. 20) Either Dr. Bansal failed to ask appropriate questions in determining claimant’s mental health status or claimant was less than forthright; both situations which cast doubt on Dr. Bansal’s conclusion.

Given all of the emotional and mental stressors claimant is suffering and has suffered prior to her March 2008 injury, Dr. Bansal’s opinion that her depression is work related is not convincing.

Claimant has failed to carry her burden as it relates to the issue of depression.

The next issue to determine is the extent of claimant’s industrial disability. Defendants accept claimant’s rotator cuff injury but argue that the repair to her rotator cuff was successful and that any ongoing pain claimant is currently suffering is unrelated to her March 2008 injury.

The fighting issue is whether claimant’s complex regional pain syndrome diagnosis is accurate and whether it is related to her work injury. Treating doctors Chen and Han both opined claimant suffered complex regional pain syndrome as a result of her work injury on March 11, 2008. Those doctors, however, did not have the whole picture. Claimant had nearly identical injuries and sequelae in 2000 to at least 2003. She stated, under oath, in her interrogatory answers that her pain in the shoulder and arm region was permanent and severe. She had numbness and tingling in her arm down to her fingers and numbness in her face. These are the same problems she complains of today. It is unknown what diagnosis doctors Chen and Han would have given had they been apprised of claimant’s past medical history.

Dr. Pollack was the only physician who was provided a history of claimant’s previously stated problems. (Ex. Y) Dr. Pollack identified the core problem in the opinions of the other doctors and the claims of the claimant. To wit, if claimant’s previous injury to her right shoulder, arm and hand were severe and permanent and if she was given work restrictions that she did not observe, did she prove by a preponderance of the evidence, that her current complaints arose out of and in the course of her employment. The evidence is undisputed that claimant suffered a permanent and severe injury to her right shoulder, arm and hand in 2000. She was still suffering symptoms from that injury three years later in 2003. These symptoms were the same symptoms she now claims are from the 2008 incident. It is not possible to tell from the evidence whether claimant’s rotator cuff injury was responsible for the current complex regional pain syndrome symptoms or whether her symptoms are simply a worsening of a problem that started in 2000. Complex regional pain syndrome is a chronic and progressive disease, but one that is largely subjective.

Dr. Bansal’s opinion, as was others, depended upon her lack of prior symptoms.

I do feel Ms. Zaglauer does exhibit symptoms associated with RSD. She has a profound disability due to her injury of 04/11/2008, compared to her apparent complete lack of symptoms prior to her injury.

(Ex. 15, p. 19)

In his deposition, Dr. Bansal denied any knowledge of previous symptomatology.

Claimant’s complaints of pain vary from record to record. She claims to have pain in the 7 out of 10 range yet appears at doctors’ offices in no apparent distress. She reported improvement to the point that she felt she could return to work without restriction. Claimant attempted to explain these medical notes saying that she wanted to appear as if she was getting better for the benefit of the workers’ compensation doctors but her past employment records indicate that claimant had no problem speaking out about her Meniere’s disease and the problems that the disease caused her. Claimant had no problem confronting coworkers if she disagreed with their actions. It is not consistent, then, that claimant would present herself as fully healed or getting better when she was, in fact, worsening.

This is a challenging factual dilemma. Claimant has evidence of a chronic pain syndrome involving her right upper extremity.  Based on her credibility issues which include the varying complaints of pain; the complete silence regarding a severe and permanent previous injury; and her testimony during cross examination when she failed to remember, until confronted with documentation, of this previous severe and permanent injury claimant has failed to carry her burden of proving that the chronic regional pain syndrome (CRPS) is related to her rotator cuff tear suffered on March 11, 2008.

The full responsibility rule cannot be applied here because there is no acknowledgment by the claimant that a previous injury occurred let alone that she may have suffered an aggravation of a pre existing injury.

Claimant further alleges a back and neck injury. The back and neck injury, if one exists, has been connected to guarding as a result of the CRPS. CRPS has been determined to be not related to the work injury of March 11, 2008. Even if CRPS had been related to the work injury of March 11, 2008, claimant failed to carry her burden of causation as it relates to the back and neck injury. Claimant had previous back and neck complaints and Dr. Igram stated that after a complete review of the records post 2008, he could not say to a reasonable degree of medical certainty that the back and neck complaints were related to the March 11, 2008, injury. Dr. Bansal, claimant’s independent medical examiner, did not address the back and neck issue. In fact, upon examination of claimant’s neck, Dr. Bansal found she had full range of motion without pain. (Ex. 15, p. 16)

Claimant suffered a work related injury on March 11, 2008, which resulted in a tear to the rotator cuff. The rotator cuff injury was surgically repaired on June 26, 2008. On March 9, 2009, claimant was released to work and given full use of the shoulder, as tolerated. (Ex. 4, p. 19) Claimant reported on this date that her shoulder was doing great with only the odd paresthesia that is fleeting in her arm, depending on activity. (Ex. 4, p. 19) On this date, it is determined claimant was at maximum medical improvement for her rotator cuff injury. Dr. Meyer assigned a 5 percent impairment to the right upper extremity. Based on claimant’s work history and the testimony of Maureen Allen, claimant’s inability to use her right shoulder at maximum capacity would impair her employability. It is found claimant has suffered a 15 percent industrial loss.

Because claimant has failed to carry her burden on the issue of CRPS, any medical care requested because of that disease is not the responsibility of the defendants.

The next issue is whether claimant is entitled to intermittent healing period benefits.

Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, Iowa App 312 N.W.2d 60 (1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).

Claimant was immediately returned to work with modified light duty. The light duty work offered was typing. Claimant felt she could not perform the work and refused. However, shortly after her injury, on April 16, 2008, claimant was terminated for inappropriate behavior at work.

Defendants’ assertion that claimant is not entitled to weekly temporary total disability, temporary partial disability, or healing period benefits due to a refusal to accept suitable work pursuant to Iowa Code section 85.33(3) is an affirmative defense. The employer must show by the preponderance of the evidence that the work was offered; that the work was suitable, that is, having a physical or mental demand level that does not exceed claimant’s capacities; and, that the refusal was an intentional act. Brodigan v. Nutri-ject Systems, Inc., File No. 5001106 (App. April 13, 2004). Woods v. Siemens-Furnas Controls, File Nos. 1303082, 1273249 (App. July 22, 2003). Disciplinary action such as a suspension or termination based upon misconduct or a violation of an employer’s work rules is not a refusal to perform suitable work. In Franco v. IBP, File No. 5004766 (App. February 28, 2005) Commissioner Trier held:

The concept that a termination for misconduct constitutes an intentional refusal to perform work was adopted by this agency in Himes v. MSP Resources, Inc., No’s. 1055997 & 1055996 (App. April 10, 1996).  That policy has been expressly reversed to the extent that an employer’s personnel policies will not govern entitlement to indemnity benefits.  The employer must prove that the employee refused work that was both offered and suitable.  The act of refusal must be an intentional act.  Woods v. Seimens-Furnas Controls, File No’s., 1303082 & 1273249 (App. July 22, 2003).  For misconduct to disqualify a person from compensation, the misconduct must be tantamount to refusal to perform the offered work.  The misconduct must be serious and the type of conduct that would cause any employer to terminate any employee.  The misconduct must have a serious adverse impact on the employer. Brodigan v. Nutri-Ject Systems, Inc., No. 5001106 (App. April 13, 2004).  An employee working with restrictions is not entitled to act with impunity toward the employer and the employer’s interests.  Nevertheless, not every act of misconduct justifies disqualifying an employee from workers’ compensation benefits even though the employer may be justified in taking disciplinary action.

Franco v. IBP, File No. 5004766, p. 6 (App. February 28, 2005).

Claimant was terminated for issues unrelated to her injury. Phil Blumberg testified that he was unaware of claimant’s injury at the time of her termination. Therefore, claimant is entitled to healing period benefits from the date of her termination to March 9, 2009, the date of her maximum medical improvement.

The next issue is whether defendants are entitled to a credit for benefits paid.

Claimant was offered light duty work and defendants argue that if she had accepted such work, she would not be entitled to any benefits as they would be paying her a full wage. However, claimant was terminated and defendants made payments after the termination date. Because claimant’s termination was not due to a refusal to perform light duty work, but rather insubordination, defendants’ payments after the injury and after termination were appropriate. Defendants would be entitled to normal credits paid prior to hearing.

The last issue is that of the medical costs. Claimant seeks reimbursement of costs in the amount of $4,572.80. Defendants object to the following costs:

• $200.00 for the medical report of Dr. Ken Pollack

• $150.00 for the medical report of Dr. Donna Bahls

• $2,400.00 for the deposition of Dr. Sunil Bansal

• $90.00 for medical records

• $682.80 for photocopies

Rule 876 IAC 4.33 provides:

876—4.33(86) Costs. Costs taxed by the workers’ compensation commissioner or a deputy commissioner shall be (1) attendance of a certified shorthand reporter or presence of mechanical means at hearings and evidential depositions, (2) transcription costs when appropriate, (3) costs of service of the original notice and subpoenas, (4) witness fees and expenses as provided by Iowa Code sections 622.69 and 622.72, (5) the costs of doctors’ and practitioners’ deposition testimony, provided that said costs do not exceed the amounts provided by Iowa Code sections 622.69 and 622.72, (6) the reasonable costs of obtaining no more than two doctors’ or practitioners’ reports, (7) filing fees when appropriate, (8) costs of persons reviewing health service disputes. Costs of service of notice and subpoenas shall be paid initially to the serving person or agency by the party utilizing the service. Expenses and fees of witnesses or of obtaining doctors’ or practitioners’ reports initially shall be paid to the witnesses, doctors or practitioners by the party on whose behalf the witness is called or by whom the report is requested. Witness fees shall be paid in accordance with Iowa Code section 622.74. Proof of payment of any cost shall be filed with the workers’ compensation commissioner before it is taxed. The party initially paying the expense shall be reimbursed by the party taxed with the cost. If the expense is unpaid, it shall be paid by the party taxed with the cost. Costs are to be assessed at the discretion of the deputy commissioner or workers’ compensation commissioner hearing the case unless otherwise required by the rules of civil procedure governing discovery.

This agency reversed previously precedent that limited cost of doctors reports.

While a doctor or practitioner deposition testimony is limited by Iowa Code section 622.69 and 622.72, no such limitation is contained in this rule for obtaining written reports, nor is there any application of those statutes to written reports. As recently instructed by the Iowa Supreme Court, this agency cannot ignore the plain working of its own rules. Boehme v. Fareway Stores, Inc., 762 N.W 2d 142 (Iowa, 2009); Rock v. Warhank, 757 N.W.2d 670, 673 (Iowa 2008). Therefore, the prior agency precedent set forth above shall no longer be controlling agency precedents in cases before this agency and the entire reasonable costs of doctor and practitioner’s reports may be taxed as costs pursuant to 876 IAC 4.33.

Smith v. Monsanto, File No. 1254092 (App. October 21, 2009)

Therefore, the costs for the medical reports of Dr. Ken Pollack and Dr. Donna Bahls shall be assessed to defendants as well as $150.00 for Dr. Bansal. The costs of photocopies and medical records are not allowable under the statute.

ORDER

THEREFORE IT IS ORDERED

Claimant’s motion to amend pleadings to conform to the evidence is granted. The issue of depression was considered in this hearing.

The claimant’s CRPS did not arise out of and in the course of her employment for the defendants.

The defendants shall pay seventy five (75) weeks of permanent partial disability at the stipulated rate of four hundred forty-two and 43/100 ($442.43).

The defendants shall pay healing period benefits from April 16, 2008 to March 9, 2009.

All accrued benefits, including any underpayment of weekly benefits, shall be paid to the claimant in a lump sum.

The defendants are entitled to a credit against the payment of permanent partial disability benefits.

The defendants shall pay medical expenses as outline in the body of this decision.

The defendants shall pay costs as outlined in the body of this decision.

The defendants shall file further reports of injury as required by this agency.

Signed and filed this __4th _ day of March, 2011.

________________________

JENNIFER GERRISH-LAMPE

DEPUTY WORKERS’

COMPENSATION COMMISSIONER

Copies to:

Jerry Jackson

Attorney at Law

1601 22nd St., Ste. 305

West Des Moines, IA 50266

moranvillejacksonlaw@

Lee P. Hook

Attorney at Law

6800 Lake Drive, Suite 125

West Des Moines, IA 50266

lee.hook@peddicord-

JGL/kjw

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