BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
___________________________________________________________________
:
THOMAS NORTON,
:
:
Claimant,
:
File No. 5027578
:
vs.
:
:
APPEAL
LEONARD EXPRESS, INC.,
:
:
DECISION
Employer,
:
:
and
:
:
COMMERCE & INDUSTRY
:
INSURANCE COMPANY,
:
:
Insurance Carrier,
:
Defendants.
:
Head Note Nos.: 1108, 1803
___________________________________________________________________
Upon written delegation of authority by the workers’ compensation commissioner
pursuant to Iowa Code section 86.3, I render this decision as a final agency decision on
behalf of the Iowa workers’ compensation commissioner.
Pursuant to Iowa Code sections 86.24 and 17A.15, I affirm and adopt as the final
agency decision those portions of the proposed arbitration decision of October 7, 2011
filed in this matter that relate to issues properly raised on intra-agency appeal and
cross-appeal with the exception of the finding that claimant’s treatment for his back
condition after a fall on January 30, 2009, and his mental condition, are causally related
to the work injury of September 17, 2005 and the industrial award of only 20 percent.
Causation/Authorization of Treatment:
I agree with the hearing deputy that claimant failed to show any entitlement to
additional healing period benefits after June 5, 2007. Both Chad Abernathey, M.D., and
claimant’s expert, Richard Neiman, M.D., agreed he had achieved maximum medical
recovery from this work injury at or about that time. There were no physicians after that
time that opined he was unable to work due to the work injury. He clearly had
significant treatment, including multiple surgeries, after that time, due to his physical
complaints, but I do not find any of that treatment causally related to the injury. The
hearing deputy was correct to state that there were no physicians that opined the care
NORTON V. LEONARD EXPRESS, INC.
Page 2
was not related to the injury. However, there were also no physicians that opined that it
was related to the injury.
Admittedly, the deputy found the treatment conducted in the Cedar Rapids area
after 2009 was authorized by defendants, but this was due to a failure to provide a
written notice to claimant that referring physicians were no longer authorized.
Treatment received by a provider, referred by an authorized provider, generally
constitutes authorized treatment, Lawyer and Higgs, Iowa Workers’ Compensation--Law
and Practice 3rd Edition, section 15-2. This portion of the arbitration decision apparently
was not appealed by defendants. There is a statement in defendants’ appeal brief
which asserts the subsequent treatment in Cedar Rapids by David Segal, M.D., the
doctor who performed the multiple surgeries, was referred by the Missouri doctors, but
the deputy found otherwise. In their appeal brief, the only issues raised on cross-appeal
challenge the hearing deputy’s causation findings relating to claimant’s physical and
mental condition, not the authorization findings.
Claimant has not significantly challenged the hearing deputy’s finding that his
treatment by Missouri providers was not authorized. Claimant only asserts an
abandonment of care by defendants for refusing to answer requests for authorization of
such care. Indeed, defendants’ only written notice about authorization came in the form
of an email to claimant’s counsel on February 17, 2011, that any care for physical
complaints after 2007 was not authorized. Even then the care for his mental condition
was extended in that email to at least December 15, 2010 and the evaluation by Eli
Sagan Chesen, M.D., and possibly even beyond that date.
However, the fact that treatment for a condition was authorized does not change
the burden of proof requiring clamant to show that the work injury was a cause of the
condition treated in order to obtain disability benefits for that condition. The record is
wholly absent of any medical opinion on causation of his back condition after a fall in
January 2009, which even claimant admits increased his symptoms. (Transcript, pages
87-88, Exhibit I, page 30) Until that fall, claimant had only a few office visits after June
2007. (Ex. R, p. 201; Ex. 2, p. 2) Before January 2009, a surgical option had been
rejected by treating physicians, namely, Dr. Abernathy, a neurosurgeon; Kevin Eck,
M.D., an orthopedic surgeon, and Douglas Sedlacek, M.D., the pain management
physician. The subsequent treating physicians, especially, Dr. Segal, likely did not
opine concerning causation or disability because claimant was receiving such care from
Medicaid. The only mention of a work injury was in office notes of this surgeon in which
he noted the onset of back pain five years earlier from a fall from a truck. (Ex. 13, p. 1)
Later on, this doctor states that claimant had yet another fall in February 2010 which
worsened his condition. (Ex. 13, p. 4) Given these intervening falls, the absence of a
medical opinion that the treatment after 2009 was related to the original injury, the most
that can be found is that that the 2005 work injury may be a contributing cause. I am
unable to award disability benefits for the condition treated based on such a finding.
NORTON V. LEONARD EXPRESS, INC.
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I am also unable to find that claimant’s mental condition is due to the work injury.
The only specific causation opinion in this record concerning claimant’s mental
difficulties comes from Eli Sagan Chesen, M.D., who specifically opines as follows:
Causation of diagnoses: Antisocial personality disorder is a lifelong pattern of
maladaptation. It is not caused by physical or mental trauma and in this case even preexisted the accident.
(Ex. 16, p. 13)
The treating clinical psychologist, Michael March, Ph. D., in his office notes, talks
about various stressors in claimant’s life, including his back pain, but does not issue a
formal causation opinion concerning the role the work injury played in claimant’s mental
state. (Ex. Q) The family doctor, Richard Hodge, M.D., referred claimant to a
psychiatrist in December 2007 due to anxiety from work related pain. But, he again
issued no formal causation opinion concerning claimant’s mental condition. The views
of Drs. March and Hodge do not outweigh the specific views of a well-qualified
psychiatrist such as Dr. Chesen.
Again, there is ample evidence in the record to sustain the finding by the hearing
deputy that the mental health treatment after 2007 for which clamant is seeking medical
benefits, was authorized by defendants.
Despite findings that much of the treatment after 2007 was authorized,
defendants apparently believe that they are not obligated to pay for the treatment not
causally related to the work in jury. This is not the case. Employer must pay for the
care they authorize, even if that care was later on determined unrelated to the work
injury. Becker v. Clinton Engineering, Inc., No. 1205139 (App. July 3, 2001); Janssen v.
U.P.S., No. 1019753 (App. April 29, 1994). Therefore, the award of medical benefits by
the hearing deputy is sustained.
Permanent Industrial Disability:
Finally, I disagree that claimant only sustained a 20 percent loss of his earning
capacity from the 2005 work injury. The hearing deputy made his award based upon
permanent impairment, but did not specify what that impairment may be if claimant’s
testimony about his disability was not found credible by the hearing deputy. Although
the hearing deputy found the impairment rating opinion by Richard Neiman, M.D., more
credible than that of Dr. Abernathy due to Dr. Abernathy’s failure to explain how he
arrived at this rating, the deputy rejected the views of Dr. Neiman concerning
restrictions. The deputy explained that Dr. Neiman did not identify how he arrived at the
restrictions and that the restrictions were not based upon a functional capacity
evaluation (FCE). However, agency precedent does not give some sort of independent
status to an FCE, nor does this agency require an FCE in order to find that the work
injury is a cause of activity restrictions. Indeed, an FCE by itself is given little weight if
NORTON V. LEONARD EXPRESS, INC.
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not adopted by a licensed medical doctor. Allen v. Annett Holdings, File No. 5024900
(App. July 28, 2011)
In this case, there has been no treating physician to opine that claimant is
capable of returning to full duty work. Early on, claimant was given work restrictions
which kept him off work due to restrictions in lifting and prolonged sitting. (Ex. 7, p. 2)
No physician since has released him back to unrestricted work. Dr. Neiman’s
restrictions are consistent with his medical history. He states as follows in his report
dated April 30, 2008:
As far as restrictions, I’m not sure his is even capable of even
sedentary type activity. He uses the cane to walk on. He has marked
discomfort. I suggest that he is incapable of returning to work as a truck
driver, in fact, he will have difficulty finding any tasks including even
sedentary type activity. He is best suited probably for 5-10 pounds lifting,
maximum lifting up to about 15-20 pounds no more than four times an
hour. He has to change positions between sitting and standing about
every ½ hour. He should avoid any flexion/extension, he may have to lie
down periodically because of the discomfort…
(Ex. 9, p. 4)
It appears that Dr. Neiman was basing some of his opinions on claimant’s
complaints which were not found fully credible by the hearing deputy. While I performed
a de novo review, I must give considerable deference to findings of fact that are
impacted by the credibility findings, expressly or impliedly, made by the deputy who
presided at the hearing. The deputy who presided at the hearing had the best
opportunity to evaluate the demeanor of the persons who testified at the hearing. The
presiding deputy has the ability to include the demeanor of a witness when weighing
credibility to find the true facts of the case. My ability to find the true facts that are
affected by witness demeanor and credibility cannot be expected to be superior to that
of the deputy who presided at the hearing. If anything, my ability when reviewing a
transcript is likely inferior because I do not have the tool of witness demeanor to use in
my evaluation.
However, I find that despite claimant’s lack of credibility as discussed by the
hearing deputy, given the views of Dr. Neiman, claimant has been rendered incapable
of returning to his chosen occupation as a truck driver and heavy work before his latest
round of surgeries. Given his lack of formal education, a work history of mostly the type
of work he cannot perform and the views of Dr. Neiman, I find that the work injury of
2005 is a cause of a 60 percent loss of earning capacity. Such a finding entitles
claimant to 300 weeks of permanent disability benefits at the stipulated rate pursuant to
Iowa Code section 85.34(2)(u) which is 60 percent of 500 weeks, the maximum that can
be awarded for a disability to the body as a whole (industrial) under that Code section.
Given the deputy’s finding that claimant’s assertions are not fully credible, his claim for
permanent total disability is denied.
NORTON V. LEONARD EXPRESS, INC.
Page 5
ORDER
Therefore, the arbitration decision of October 7, 2011 is modified as follows:
1. The unnumbered second paragraph in the Order section is stricken and the
following inserted in lieu thereof:
Defendants shall pay claimant three hundred (300) weeks of permanent disability
benefits at the rate of six hundred nine and 20/100 dollars ($609.20) per week
commencing on June 7, 2007. Defendants shall be given credit for any previous
payment of permanency benefits.
2. The balance of the Order section is unchanged.
Both parties were successful in part in this appeal. Therefore, each party shall
pay its own appeal costs and the cost of the transcription shall be divided equally.
Signed and filed this 23rd day of January, 2013.
Copies to:
Thomas J. Currie
Attorney at Law
PO Box 998
Cedar Rapids, IA 52406-0998
tomc@trlf.com
Aaron Oliver
Attorney at Law
520 Walnut Street, 5TH Floor
Des Moines, IA 50309-4119
aoliver@hmrlawfirm.com
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