BEFORE THE IOWA WORKERS’ COMPENSATION …



BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER

______________________________________________________________________

:

TERA HOUGLAND, :

:

Claimant, : File Nos.: 5028766

: 5028767

vs. :

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

FIRST RESOURCES CORPORATION, :

: D E C I S I O N

Employer, :

:

UNITED HEARTLAND INSURANCE, : Head Note Nos.: 1800, 1803, 2700

:

Insurance Carrier. :

Defendants. :

______________________________________________________________________

STATEMENT OF THE CASE

This is a proceeding in arbitration. The contested case proceeding was initiated when claimant, Tera Hougland, filed her two petitions with the Iowa Division of Workers’ Compensation. File number 5028766 was filed on February 24, 2009. Claimant alleged she sustained a work-related injury on July 13, 2008. (Original notice and petition) File number 5028767 was filed on February 24, 2009. (Original notice and petition) Claimant alleged she sustained a work-related injury on December 11, 2008.

Defendant, First Resources Corporation is operating an assisted living residential facility for mentally and physically challenged adults. The location where claimant is employed is the Sigourney facility. For purposes of workers’ compensation, First Resources Corporation is insured by United Heartland Insurance.

In File No. 5028766, a first report of injury was filed on November 3, 2009. No first report of injury was filed in File No. 5028767.

The hearing administrator scheduled the case for March 4, 2010. The case was heard in Des Moines, Iowa at the office of Iowa Workforce Development. The undersigned appointed Ms. Erin Lamb as the certified shorthand reporter. She is the official custodian of the records and notes.

Claimant testified on her own behalf. She subpoenaed Ms. Lori Taghon, a co-worker to testify for her. Ms. Brandon Follman, another co-worker at First Resources Corporation also testified. Ms. Carolyn Rauch, a third co-worker, also testified for claimant. Mr. Dennis Clary, the father of claimant’s three children, testified for claimant. Defendants called Ms. Michelle Smith, Program Manager, and supervisor over claimant.

The parties offered exhibits. Joint exhibits 1 through 9 were admitted as evidence in the case.

Claimant offered exhibtis1 and 2. Defendants objected to both of claimant’s exhibits. Defendants objected to exhibit 1 which is comprised of four handwritten statements from Tera Hougland, Dennis Clary, Karisa L. Capell and Denise Anne Lippincott. Defendants objected on the basis the statements were not the best evidence. The statements of Tera Hougland and Dennis Clary are admissible because both parties testified and the witnesses could be cross-examined about the statements. While it is true the statements of Karisa L. Capell and Denise Anne Lippincott were not the best evidence that could have been produced, administrative proceedings do allow all types of evidence to be admitted in a contested case proceeding. The two statements are admitted as evidence. However, since the authors of the two statements did not testify under oath and could not be cross-examined by defendants, this deputy gave little weight to the content of the statements made by Ms. Capell and Ms. Lippincott. Neither statement had much information to provide as to the cause of claimant’s condition. The statements for the most part were based on hearsay evidence. The two statements were self-serving in purpose. The two statements had very little impact on the real issues before this deputy, however, this deputy acknowledges lay testimony is appropriate in contested case proceedings before the Iowa Workers’ Compensation Commissioner.

With respect to claimant’s exhibit 2, defendants objected to the admission of an online abstract from The Journal of Issues in Nursing. Defendants objected to the abstract because it was written by a doctor of philosophy and not by a medical doctor. The title of the article is “Handle With Care: The American Nurses Association’s Campaign to Address Work-Related Musculoskeletal Disorders” by A. B. de Castro. The article is admitted as evidence in the case. Since this deputy previously worked for the Iowa Division of Labor where she prosecuted violations of the Iowa Occupational and Safety and Health Act, the undersigned found the article to be of high interest but not specifically related to the contested cases before this deputy. Nevertheless, exhibit 2 is admitted as evidence in the case.

Post hearing briefs were ordered. The briefs were submitted on March 31, 2010. On that date, the case was deemed fully submitted.

STIPULATIONS FOR FILE NO. 5028766

1. There was the existence of an employer-employee relationship at the time of the alleged injury;

2. Claimant sustained an injury on July 13, 2008 which arose out of and in the course of her employment;

3. The parties believe the weekly benefit rate is $266.81 per week;

4. If permanency benefits are awarded, the parties agree the commencement date is March 18, 2009;

5. Defendants agree they will pay for the cost of an independent medical examination with John Kuhnlein, D.O.;

6. Prior to the hearing, claimant was paid $950.53 on January 13, 2009; $268.18 on January 18, 2009; $101.33 on January 27, 2009; $101.33 on February 3, 2009; and $9.05 on February 10. 2009 for a total of temporary benefits paid in the amount of $1,428.42; and

7. The parties agree the costs, as attached, have been paid by claimant.

ISSUES FOR FILE NO. 5028766

1. Whether the injury on July 13, 2008 is the cause of temporary and/or permanent disability;

2. Whether claimant is entitled to temporary benefits or healing period benefits from December 15, 2008 through March 17, 2009 and the parties agree claimant was off work during the same period of time;

3. Whether claimant is entitled to permanent partial disability benefits;

4. Whether claimant is entitled to the payment of medical expenses pursuant to Iowa Code section 85.27;

5. Whether claimant is entitled to alternate medical care pursuant to Iowa Code section 85.27;

6. Whether claimant is entitled to penalty benefits pursuant to Iowa Code section 86.13; and

7. Whether claimant is entitled to interest.

STIPULATIONS AND ISSUES FOR FILE NO. 5028767

In addition to the aforementioned issues, defendant denies the existence of a work-related injury on December 11, 2008.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This deputy, after listening to the testimony of claimant and the other five lay witnesses, after reading the evidence, and after reviewing the post-hearing briefs, makes the following findings of fact and conclusions of law:

Claimant is a 28 year old obese single mother of three minor children. Claimant is right hand dominant. She has a body mass index, (BMI) of 36. Claimant smokes one pack of tobacco products per day. She resides in the small town of Fremont, Iowa. The town is located in Mahaska County. The population of the town is comprised of 704 residents according to the “2010 Iowa Transportation Map.” There is not much in the way of commerce taking place in Fremont. One must often seek employment opportunities outside the city limits.

Claimant terminated her high school education at the age of 15. She does not have a GED. She does hold certificates as a certified nursing assistant and as a medication manager.

Claimant’s prior work history has been as a telemarketer and as a certified nursing assistant. Claimant was hired by defendant on October 14, 2004. Claimant was hired as a direct care provider. Effective January 17, 2008, claimant was earning $8.94 per hour. Management usually scheduled claimant to work 42 hours per week which allowed claimant to earn two hours of overtime pay per week.

It is stipulated on July 13, 2008 claimant and a co-worker, Brandon Follom were transporting a client of the home. The client became uncooperative and even combative. Claimant was on the left side of the client. Ms. Follom was on the right side of the client. The patient became so uncooperative that he pulled claimant and Ms. Follom to the floor and he “jerked on” the two workers. Ms. Follom felt her back pop. She experienced pain for approximately one-half hour following the incident.

Claimant testified the client did not feel safe when the two workers were transporting him. Claimant reported the client “yanked” on her right arm in the process. Claimant described the symptoms she experienced. They included pain in the right neck area that included a golf ball size bulge on the right neck area. Claimant said the area was very painful but the pain waxed and waned following the injury. Co-workers observed the bulge on the right side of the neck.

Michelle Smith, the program manager, reviewed the accident report that both Brandon and claimant completed for the incident on July 13th. (Joint Exhibit 9, pages 63-64) Claimant signed the injury, illness and accident report. Ms. Smith signed the document. Claimant indicated the injury affected claimant’s right arm, neck and shoulder. (Jt. Ex. 9, p. 64) Kelly Reeves, the health and safety coordinator, advised both Brandon and Tera they were to contact Karen Morris for any medical care that was needed. Kelly Reeves informed Ms. Smith both workers declined medical treatment at the time the incident was reported.

Claimant treated any pain with home remedies. She would place a “rice sack” in the microwave oven and then use it for heat on her neck. She iced her sore spots. Claimant rubbed Ben Gay across the affected area and she took both over-the-counter Tylenol and Ibuprofen at the same time. Co-worker, Lori Taghon, a massage therapist, would often massage both of claimant’s wrists as well as claimant’s right trapezius muscle group. This was done in an attempt to alleviate claimant’s pain. Claimant did not request medical attention for five months.

Claimant testified she worked on Thursday, December 11, 2008 and her right arm began to ache. Once claimant completed her shift, she went home and took over- the-counter medications. She experienced no relief from the remedies employed.

At approximately 5:00 p.m. on Sunday, December 14, 2008, claimant contacted Ms. Smith by telephone. Claimant inquired whether she would be allowed to seek emergency care for her right shoulder pain. Claimant was tearful when she explained she needed help for her painful right shoulder. She explained to Ms Smith, “I don’t know what I did. It could have been the incident in July or else it could be from toting the baby.” Ms Smith informed claimant that Ms. Morris would contact her on the following day. However, claimant telephoned Ms. Morris on December 15, 2008 to inquire about medical care.

On December 16, 2008, Pat Blackledge, ARNP, examined claimant for right shoulder pain, pain in the suprascapular regions of the right shoulder, and pain in the area of the right trapezius muscle group. Claimant described the July 13th incident to the nurse practitioner. Claimant reported the pain waxed and waned following the incident. She stated she thought the pain would eventually disappear. The nurse was unable to determine with a reasonable degree of certainty that the pain experienced in December was related to an incident five months earlier. Prophylactic restrictions were imposed until claimant could meet with a medical doctor to discuss medical causation.

First Resources Corporation would not allow claimant to return to work with the restrictions that had been imposed by the nurse. Claimant was off work.

Marichris Zahnle, M.D., examined claimant per a referral from the nurse practitioner. The examination occurred on January 15, 2009. Dr. Zahnle examined claimant for the purpose of rendering an opinion regarding medical causation. The physician found the examination of claimant’s right shoulder to be unremarkable. (Jt. Ex. 9, p. 38) Dr. Zahnle indicated:

the mechanism of injury is not very clear to me from what the patient describes. In addition to this it is just near impossible to examine this patient as she in not very cooperative. Objectively, I am not noting any positive objective findings.

(Ex. 9, p. 38)

Dr. Zahnle opined claimant’s right shoulder was unremarkable. The physician did not relate claimant’s complaints to the work injury that occurred on July 13, 2008. (Jt. Ex. 9, p. 38) Later, Dr. Zahnle diagnosed claimant with “uncomplicated shoulder strain.” The doctor did not believe additional medical treatment was warranted and she opined claimant had a zero percent permanent impairment rating because of right shoulder pain. (Jt. Ex. 9, p. 39) Dr. Zahnle imposed no work restrictions for claimant. (Jt. Ex. 9, p. 40)

After the examination by Dr. Zahnle occurred on January 15, 2009, claimant sought treatment on her own. She saw Donald R. Wirtanen, D.O., a family practitioner in Bloomfield, Iowa. The initial appointment occurred on February 3, 2009. Claimant discussed the incident that had occurred at work on July 13, 2008. Claimant reported “pulled muscles on shoulder and neck." (Jt. Ex. 9, p. 15) According to Dr. Wirtanen’s deposition testimony, claimant had not encountered many difficulties between July of 2008 and December 2008. (Jt. Ex. 9, p. 6) Dr. Wirtanen based his opinion on the initial interview he conducted with claimant. (Jt. Ex. 9, p. 21) Then in December of 2008, claimant began to experience some problems. (Jt. Ex. 9, p. 6)

Dr. Wirtanen ordered MRI testing of the cervical spine after he examined claimant. (Jt. Ex. 9, p. 6) The MRI testing of the cervical spine was negative but did show objective signs of muscle spasms. (Jt. Ex. 9, p. 7) Elvin W. McCarl, M.D., a radiologist in Bloomfield, Iowa interpreted the results of the MRI as:

IMPRESSION: Loss of normal lordotic curvature possibly muscle spasm, otherwise, normal cervical spine MRI. No disk protrusions or stenosis.

(Jt. Ex. 9, p. 42)

Dr. Wirtanen diagnosed claimant with “trapezius and subscapular strain with spasm.” The diagnosis was consistent with the complaints claimant expressed. (Jt. Ex. 9, p. 10) The injury was found to be a soft tissue injury. (Jt. Ex. 9, p. 11) The treating physician testified, the work injury caused no structural problems to the cervical spine. (Jt. Ex. 9, p. 10) Dr. Wirtanen ordered a muscle relaxant, physical therapy and then the physician provided a trigger point injection into claimant’s right shoulder region. (Ex. 9, p. 7) Claimant’s last appointment with Dr. Wirtanen occurred on March 17, 2009. Dr. Wirtanen opined claimant’s condition had resolved to the point she was released to work without restrictions on the succeeding day. (Jt. Ex. 9, pp. 7-8; Jt. Ex. 9, pp 11-12) Dr. Wirtanen testified, he expected claimant would continue to experience pain from time to time. (Ex. 9, p. 12)

With respect to the issue of permanency, Dr. Wirtanen testified claimant had a temporary condition that eventually resolved. (Ex. 9, p. 14) However, the doctor could not dispute the findings of Dr. Kuhnlein with respect to the issue of permanency. (Jt. Ex. 9, p. 13) Dr. Wirtanen testified he did not have the same books available to him as did Dr. Kuhnlein.

Claimant exercised her right to an independent medical examination pursuant to Iowa Code section 85.39. On October 3, 2009, John D. Kuhnlein, D.O., examined claimant for the purpose of rendering an independent medical opinion concerning claimant’s condition. The opinion was expressed in a report that was dated October 9, 2009 and marked exhibit 9, pages 48 through 58. In the report, Dr. Kuhnlein opined claimant suffered from chronic cervical pain and chronic right trapezius pain. (Jt. Ex. 9, p. 55) According to Dr. Kuhnlein, claimant continued to complain of minor musculoskeletal problems. (Jt. Ex. 9, p. 57)

The evaluating physician opined, “The prognosis for complete symptom resolution is good. The prognosis for unrestricted return to work is excellent, depending upon the type of work to which she returns. The prognosis for return to work with appropriate accommodations is excellent.” (Jt. Ex. 9, p. 56)

Dr. Kuhnlein agreed with Dr. Wirtanen and the radiologist, Dr. McCarl, “The MRI obtained by Dr. Wirtanen did not show any significant degenerative disc disease.” (Jt. Ex. 9, p. 56) Dr. Kuhnlein agreed with the treating physician, claimant reached maximum medical improvement on March 17, 2009. (Jt. Ex. 9, p. 57)

Additionally, Dr. Kuhnelin opined:

She had some undefined event in December 2008 that increased her symptoms. However, her symptoms resolved with treatment by Dr. Wirtanen over a period of approximately five weeks, and so the December 2008 “event” represents a temporary exacerbation of the pre-existing condition, with her symptoms improving to their baseline status with treatment. The initial July 13, 2008, injury represents a right cervical strain and trapezius strain, after which she has developed chronic right neck and trapezius pain. The December 11, 2008, “event” represents a temporary exacerbation of this underlying condition, with return to baseline status. She continues to have symptoms, so it has not returned to its pre-July 13, 2008, status.

(Jt. Ex. 9, p. 56)

Dr. Kuhnlein suggested some lifting restrictions. He recommended claimant restrict her lifting to 40 or 50 pounds on an occasional basis, to work above shoulder height on an occasional basis and to work with vibratory or power tools above shoulder height only on an occasional basis. (Jt. Ex. 9, p. 58) His recommendations were offered as guidance and not as medical orders. (Jt. Ex. 9, p. 58)

Dr. Kuhnlein opined the following with respect to a permanent impairment rating:

Based upon the reasonably demonstrable objective findings, and using the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, I would assign impairment as follows:

Turning to pages 379-380, the DRE method is indicated. This is not a true shoulder problem; it is related to her right trapezius musculature, which is related to her cervical spine. The decrements in range of motion of the shoulder are more related to pain behaviors, not to intrinsic shoulder pathology, so no rating for the shoulder itself would be appropriate. I think that the more appropriate rating would come from the cervical spine.

Turning to Table 15-5, page 392, I would assign Ms. Hougland to DRE Cervical Category II, for which I would assign 7% whole person impairment.

(Jt. Ex. 9, p. 57)

Defendants requested an impairment rating from Dr. Zahnle. She rated claimant as having no permanent impairment.

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).

A personal injury contemplated by the workers’ compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something that acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are compensable. Increased disability from a prior injury, even if brought about by further work, does not constitute a new injury, however. St. Luke’s Hosp. v. Gray, 604 N.W.2d 646 (Iowa 2000); Ellingson v. Fleetguard, Inc., 599 N.W.2d 440 (Iowa 1999); Dunlavey v. Economy Fire and Cas. Co., 526 N.W.2d 845 (Iowa 1995); McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). An occupational disease covered by chapter 85A is specifically excluded from the definition of personal injury. Iowa Code section 85.61(4) (b); Iowa Code section 85A.8; Iowa Code section 85A.14.

The parties stipulated claimant sustained a work-related injury on July 13, 2008. There is a dispute as to whether claimant sustained a work injury on December 11, 2008. The undersigned finds claimant did not sustain a work injury on the second date. Rather, the symptoms that claimant experienced on that date were symptoms that arose because of the original injury date on July 13th. Claimant takes nothing in the form of benefits from defendants in File No. 5028767.

The remainder of the issues involves File No. 5028766 and the injury that occurred on July 13, 2008. There is sufficient evidence to establish the condition for which claimant complains, is related to the work injury. Dr. Wirtanen, the treating physician, and Dr. Kuhnlein, the evaluating physician, related claimant’s symptoms to the work injury. There was the credible testimony of claimant with respect to the incidents in question. There was the testimony of the co-worker, Brandon Follom. She substantiated claimant’s rendition of events. Only Dr. Zahnle and the nurse practitioner disagreed. However, claimant testified she was unable to communicate effectively with the doctor who did not want claimant to speak. It is the determination of the undersigned; claimant’s condition is related to her employment at First Resources Corporation.

The next issue for resolution is the nature of claimant’s condition. It is the determination of this deputy; claimant sustained a temporary total disability as a result of the injury on July 13, 2008. Claimant did not sustain a permanent injury. Medical providers in the case deemed claimant’s condition to be in the form of a muscle sprain or strain. Dr. Zahnle rated claimant as having a permanent impairment of zero percent. The treating physician testified there was no structural damage to the cervical spine. Claimant had a soft tissue injury that was supported by the MRI test results. Dr. Wirtanen, Dr. McCarl, the radiologist, and even Dr. Kuhnlein admitted there was no injury to the cervical spine. Claimant was treated conservatively. The treating physician opined claimant’s condition had resolved by the time the doctor released claimant to return to work without restrictions. Dr. Wirtanen opined the condition was temporary in nature and that it had resolved. In his deposition, Dr. Wirtanen expressed his opinions even after acknowledging joint exhibit 9, pages 61-62, where he testified he would not dispute Dr. Kuhnlein’s impairment rating because he did not have the same resource materials to verify the calculations.

Finally, even Dr. Kuhnlein diagnosed claimant with a muscle strain. While it is acknowledged Dr. Kuhnlein rated claimant as having a 7 percent permanent impairment due to the cervical spine, Dr. Kuhnlein admitted the MRI test results were normal, and the range of motion limitations were related to “pain behaviors.” (Jt. Ex. 9, pp. 55-57) Finally, Dr. Kuhnlein only suggested work restrictions as recommendations. Even then the restrictions were minor in nature and not detrimental to claimant’s employment at First Resources Corporation. No medical provider determined claimant was unable to return to the same position as a certified nursing assistant.

An employee is entitled to appropriate temporary partial disability benefits during those periods in which the employee is temporarily, partially disabled. An employee is temporarily, partially disabled when the employee is not capable medically of returning to employment substantially similar to the employment in which the employee was engaged at the time of the injury, but is able to perform other work consistent with the employee's disability. Temporary partial benefits are not payable upon termination of temporary disability, healing period, or permanent partial disability simply because the employee is not able to secure work paying weekly earnings equal to the employee's weekly earnings at the time of the injury. Section 85.33(2).

The third issue for resolution is the extent of temporary benefits to which claimant is entitled. Nurse Blackledge provided prophylactic restrictions for claimant on December 16, 2008. The employer did not return claimant to work with the restrictions imposed. Claimant was told there was no light duty work available to her. On December 30, 2008, claimant requested a return to work. The employer replied to claimant’s request in a letter dated January 16, 2009. Claimant’s shift was changed and she was asked to work only 25 hours per week. Ms Smith informed claimant, “Your hours will begin on Monday January 19, 2009. You will be assigned work that is within your current 15 pound lifting restrictions until a physician releases your restrictions. At that time, you will be able to resume your normal schedule.” (Ex. 9, p. 30)

For personal and financial reasons, claimant declined the five hour per day shift. There was no evidence to establish the work offered by the employer was “suitable work for claimant.” There was no evidence offered to describe any of the job duties claimant was to have performed. There was no evidence to establish claimant intentionally or unreasonably refused the offer of light duty work. Claimant’s schedule was so modified from the original schedule that it would have been onerous for claimant to perform her job, given her personal and family life.

From February 3, 2009 through March 17, 2009, claimant was completely restricted from working per the orders of Dr. Wirtanen. It is the determination of this deputy; claimant is entitled to temporary total disability benefits for the period from December 16, 2008 through March 17, 2009. This is a period of 13.183 weeks of temporary benefits due to claimant and payable at the stipulated weekly benefit rate of $266.81 per week. The temporary total disability benefits equal $3,517.36. Defendants shall take credit for $1,428.42 previously paid to claimant. $2,088.93 is due and owing to claimant, plus interest, as allowed by law. Those benefits shall be paid in a lump sum.

The fourth issue to address is the matter of the payment of medical expenses claimant incurred to treat her muscular strain or sprain.

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-Reopening October 1975).

Pursuant to Iowa Code section 85.27, defendants are liable for the costs claimant incurred to treat her work-related medical condition. A medical bill summary was conveniently attached to the hearing report. According to the medical summary, claimant incurred $3,282.01 in medical bills and medical mileage in the amount of $471.52. Defendants are liable for the medical bills and the medical mileage as stated in the medical summary.

Claimant is requesting alternate medical care pursuant to Iowa Code section 85.27. Defendants denied liability for claimant’s condition. They did not authorize but one appointment with Dr. Zahnle for medical treatment. Claimant sought treatment on her own with Dr. Wirtanen. Claimant is satisfied with the treatment protocol Dr. Wirtanen has provided to date. This family practitioner, who has a clinic in Bloomfield, Iowa shall remain claimant’s treating physician. Claimant may return to Dr. Wirtanen for additional treatment, if the treatment is causally related to claimant’s work injury on July 13, 2008. As the treating physician, it is Dr. Wirtanen’s duty to determine whether claimant needs to be referred to a specialist, including a pain specialist.

The final issue for resolution is the matter of penalty benefits pursuant to Iowa Code section 86.13.

If weekly compensation benefits are not fully paid when due, section 86.13 requires that additional benefits be awarded unless the employer shows reasonable cause or excuse for the delay or denial. Robbennolt v. Snap-on Tools Corp., 555 N.W.2d 229 (Iowa 1996).

Delay attributable to the time required to perform a reasonable investigation is not unreasonable. Kiesecker v. Webster City Meats, Inc., 528 N.W.2d 109 (Iowa 1995).

It also is not unreasonable to deny a claim when a good faith issue of law or fact makes the employer’s liability fairly debatable. An issue of law is fairly debatable if viable arguments exist in favor of each party. Covia v. Robinson, 507 N.W.2d 411 (Iowa 1993). An issue of fact is fairly debatable if substantial evidence exists which would support a finding favorable to the employer. Gilbert v. USF Holland, Inc., 637 N.W.2d 194 (Iowa 2001).

An employer’s bare assertion that a claim is fairly debatable is insufficient to avoid imposition of a penalty. The employer must assert facts upon which the commissioner could reasonably find that the claim was “fairly debatable.” Meyers v. Holiday Express Corp., 557 N.W.2d 502 (Iowa 1996).

The employer’s failure to communicate the reason for the delay or denial to the employee contemporaneously with the delay or denial is not an independent ground for imposition of a penalty, however. Keystone Nursing Care Center v. Craddock, 705 N.W.2d 299 (Iowa 2005).

If the employer fails to show reasonable cause or excuse for the delay or denial, the commissioner shall impose a penalty in an amount up to 50 percent of the amount unreasonably delayed or denied. Christensen v. Snap-on Tools Corp., 554 N.W.2d 254 (Iowa 1996). The factors to be considered in determining the amount of the penalty include the length of the delay, the number of delays, the information available to the employer and the employer’s past record of penalties. Robbennolt, 555 N.W.2d at 238.

Defendants had a reasonable basis to deny claimant’s workers’ compensation benefits. The actual injury occurred on July 13, 2008. The injury was reported to management as early as the same or next day. Claimant and her co-worker, Brandon Follom, were told if they needed medical attention, they should request the treatment from Karen Morris. Claimant admitted she did not request any treatment until Sunday, December 14, 2008. More than five months had elapsed between the occurrence of the work injury and the request for treatment. Then claimant told Michelle Smith she did not know what she had done. Claimant stated she did not know if she had injured herself at work or whether she had sustained the injury while she was carrying her baby. The only incident claimant could recall was the July injury when the client “jerked” on claimant’s right arm. Since so much time had transpired, it was reasonable to question the cause of claimant’s treatment.

Then there were the opinions of the nurse practitioner and Dr. Zahnle. Neither one opined the condition was work-related. Dr. Zahnle did not understand how the incident could have occurred in the first place. She stated it would be difficult to relate claimant’s symptoms to an incident more than six months prior to the examination. Also, Dr. Zahnle found the physical examination of claimant to be unremarkable. Cervical range of motion was negative. Impingement signs were negative. Claimant did not want Dr. Zahnle to touch her arm, neck or shoulder. Claimant kept pulling away from the doctor. Then there were the MRI test results of the cervical spine. Those results were within a normal range. Defendants denied claimant’s claim and gave notice to claimant of the denial on January 27, 2008. Defendants stated the bases for their denial too.

In light of the foregoing, it is the determination of the undersigned; penalty benefits are not warranted in this situation. Claimant takes nothing from these proceedings in the form of penalty benefits.

ORDER

THEREFORE, IT IS ORDERED:

In File No. 5028767, claimant takes nothing in the form of workers’ compensation benefits.

In File No. 5028766, defendants shall pay unto claimant thirteen point one (13.1) weeks of temporary total disability benefits to claimant at the stipulated weekly benefit rate of two hundred sixty-six and 81/100 dollars ($266.81) per week and commencing from March 18, 2009.

Defendants shall take credit for one thousand four hundred twenty-eight and 42/100 dollars ($1,428.42) in temporary benefits previously paid to claimant.

Accrued benefits shall be paid in a lump sum, together with interest, as allowed by law.

In File No. 5028766, defendants are liable for three thousand two hundred eighty-two and 01/100 dollars ($3,282.01) in medical costs paid by claimant and four hundred seventy-one and 52/100 dollars ($471.52) in medical mileage claimant incurred traveling to her medical providers.

In File No. 502866, Donald R. Wirtanen, D.O., of Bloomfield, Iowa is hereby designated as the medical provider for claimant, as provided in Iowa Code section 85.27

In File No. 502866, costs in the amount of three hundred thirty-one and 12/100 dollars ($331.12), and as detailed in the attachment to the hearing report, are the responsibility of defendants.

Defendant shall file all requisite reports in a timely manner.

Signed and filed this __20th ___ day of January, 2011.

________________________

MICHELLE A. MCGOVERN

DEPUTY WORKERS’

COMPENSATION COMMISSIONER

Copies to:

R. Saffin Parrish-Sams

Attorney at Law

3737 Woodland Ave., Ste. 130

West Des Moines, IA 50266

saffinspslaw@

Nathan R. McConkey

Attorney at Law

2700 Westown Pkwy., Ste. 170

West Des Moines, IA 50266-1411

nmcconkey@

MAM/kjw

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download