BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______________________________________________________________________
:
BRUCE BAKER,
:
:
Claimant,
:
:
vs.
:
:
File Nos. 5040732, 5040733
BRIDGESTONE/FIRESTONE,
:
:
ARBITRATION
Employer,
:
:
DECISION
and
:
:
OLD REPUBLIC INSURANCE
:
COMPANY,
:
:
Insurance Carrier,
:
Defendants.
:
Head Note No.: 1803
______________________________________________________________________
STATEMENT OF THE CASE
Bruce Baker, the claimant, seeks workers’ compensation benefits from
defendants, Bridgestone/Firestone, the alleged employer, and its insurer, Old Republic
Insurance Company, as a result of alleged injuries on May 23, 2010 and June 19, 2012.
Presiding in this matter is Larry P. Walshire, a deputy Iowa Workers’ Compensation
Commissioner. An oral evidentiary hearing commenced on September 10, 2013, but
the matter was not fully submitted until the receipt of the parties’ briefs and argument on
September 27, 2013. Oral testimony and written exhibits received into evidence at
hearing are set forth in the hearing transcript.
Claimant’s exhibits were marked numerically. Defendants’ exhibits were marked
alphabetically. References in this decision to page numbers of an exhibit shall be made
by citing the exhibit number or letter followed by a dash and then the page number(s).
For example, a citation to claimant’s exhibit 1, pages 2 through 4 will be cited as, “Ex 12:4”. Citations to a transcript of testimony such as “Tr-4:5,” either in a deposition or at
hearing, shall be to the actual page number(s) of the original transcript, not to page
number of a copy the transcript containing multiple pages.
The parties agreed to the following matters in a written hearing report submitted
at hearing:
1. An employee-employer relationship existed between claimant and
Bridgestone/Firestone at the time of the alleged injury.
BAKER V. BRIDGESTONE/FIRESTONE
Page 2
2. On May 23, 2013, claimant received an injury arising out of and in the course
of employment with Bridgestone/Firestone.
ISSUES
At hearing, the parties submitted the following issues for determination:
I. Whether claimant received a cumulative trauma injury arising out of and in the
course of employment on or about June 10, 2012;
II. Whether this claim for weekly and medical benefits is barred by Iowa Code
section 85.26 for failure to timely file the original notice and petition; and,
III. The extent of claimant's entitlement to weekly and medical benefits and
reimbursement for an independent medical evaluation.
FINDINGS OF FACT
In these findings, I will refer to the claimant by his first name, Bruce, and to the
defendant employer as BF.
Bruce is a 56 year old resident of Runnells, Iowa, born on October 31, 1956. He
graduated from Valley Falls High School in Kansas in 1974. He described himself as an
average student. Although Bruce took some post-high school courses in community
college, he did not receive any degrees or certificates as a result of that education.
At hearing, Bruce described his work history as primarily being of two types.
First, he worked in quarries and cement plants, beginning in 1974, and the second type
was when he worked at Firestone, which he has done since November of 1994. Bruce
indicated that at the quarries and cement plants, he did all different types of work,
including shoveling, operating heavy equipment, clean-up of the plants, and
maintenance on vehicles in the plants. He indicated that when he worked for the
cement plants, he did not have lapses between various jobs, and generally moved from
one job to another. His work history is found at Exhibit 19-70:72.
Bruce has worked for BF since 1994 and continues to do so today. He initially
worked as a size changer, where he adjusted and set-up different drum sizes for the
tires. He testified that the tires weighed approximately 50-70 pounds, and that the job
required constant pushing and pulling. He performed this job for approximately six
months. Following this, Bruce became a maintenance mechanic, and he has been in
this position since that time. At the current time, Bruce works as a maintenance
mechanic in the hoist department. He described his job as very physical, particularly in
terms of the types of situations in which he had to repair machines at the plant. He
described his work on a scissor lift, which extended to 26 feet above the ground. He
indicated that on many occasions, as a part of his employment, he was required to work
in awkward positions, with his back flexed. He also indicated that the machines at the
plant were not made such that they were easy to get to, and he would have to fit himself
BAKER V. BRIDGESTONE/FIRESTONE
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into a position so that he was able to perform his work. He used impact wrenches,
regular wrenches, and various power tools on this job, and he continues to perform his
job, despite his injuries to his shoulder and back.
In November of 2002, Bruce had an injury to his shoulder while working at BF.
As a result of that injury, Bruce was provided a 35 percent industrial disability award.
(Ex. F-1:7) Bruce acknowledged that the award indicated that he could not perform his
work at 100 percent level, but he indicated that he returned to his prior work, and he
was able to perform that work, although he sometimes needed assistance from a coworker. (Ex. F-3)
The stipulated injury on May 23, 2010 involved the low back. Bruce fell when he
stepped on a lanyard that was hanging from his chest. He indicated that he had
immediate back pain, but he continued working. After reporting the injury, Bruce was
sent to the plant physician, Todd Troll, M.D., who saw Bruce on Monday, May 25, 2010,
and physical therapy was provided for the injury. Bruce testified that after he first had
the accident, he did not think that it would be a significant event, nor did he think that it
would have a longstanding impact on his work. Bruce testified that he believed that this
would get better in a few weeks. Bruce only received treatment on a few occasions in
the plant from BF in 2010. He testified that during the course of the year, however, the
problems with his back became worse, and he sought more extensive treatment from
BF in December of 2010. At that point, he was sent for x-rays and MRIs for the first
time. Prior to this, Mr. Baker had not had any restrictions on his activities. He testified
that things were getting worse in December, and that the MRI demonstrated that he had
degenerative disc disease, particularly with his facet joints. (Ex. 4-10)
In January 2011, Bruce began treating with Thomas Hansen, M.D., a pain
management specialist. Dr. Hansen placed him on a regimen of medications and
injections, and Bruce testified that he had never had this many medications or injections
since the time when he had stepped on the lanyard. Bruce was provided a
radiofrequency denervation on April 1, 2011, and he missed work from April 1 through
April 5, 2011. (Ex. 5-16) Bruce testified that by the time he saw Dr. Hansen, he
realized that his back problems might have a more significant impact on his job.
Despite the fact that he missed work in April of 2011, he was not paid weekly benefits
by BF. Defendants did, however, pay for his medical treatment with Dr. Hansen.
On July 1, 2011, Dr. Troll gave Bruce permanent restrictions, and those
restrictions were to “return to work at his own pace.” (Ex. 2-8) Bruce indicated that
those restrictions are permanent, and continue to this day. He continued to treat with
Dr. Hansen until May of 2012. On May 23, 2012, BF sent Bruce a letter indicating that
they were no longer responsible for his injury. (Ex. G-1) Prior to this time, Bruce stated
that the employer had never told him that they were not responsible for his care, and
they never told him that they were denying his injury.
After BF denied further medical care, Bruce sought care from Mercy Clinics,
where he saw his family doctor, Stacy Davis, PA-C. Ms. Davis provided Bruce with
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medications and ultimately sent him to Jeffrey Pederson, M.D., a physical medicine and
rehabilitation specialist. Dr. Pederson provided medications, and did further testing to
determine the scope of Bruce’s impairment. Bruce testified at hearing that Dr.
Pederson’s treatment, as well as the treatment at Mercy Clinics, was paid for through
BF’s group health insurance. Bruce also indicated that other than the time period from
April 1 through April 5, 2011, and September 1, 2011, he had not missed work officially.
He indicated that he was not paid any time off for the days that he missed.
Dr. Pederson referred Mr. Baker to Jeffery Spellman, D.O., from Metro
Anesthesia & Pain Management. On July 24, 2013, Dr. Spellman, performed a bilateral
lumbar medial branch block. (Ex. H-4:5) Bruce testified at hearing that he is scheduled
to have another branch block within a few weeks of the hearing. Dr. Spellman is to
determine whether another radiofrequency needs to be performed.
At hearing, Bruce talked about the current condition of his back. He has pain in
his low back, hips and knees. He described the pain in his knees as someone stabbing
a needle into the knees. He has difficulty walking long distances. He has had more and
more difficulty working, and despite his restriction to work at his own pace, he has
difficulties performing some of the work that he must do. Mr. Baker described that after
a few days at work, he is exhausted. He indicated that he slept when he was not at
work, but that his sleep was not sound and that he often had to wake from sleep. He
also indicated that at work, although overtime was available, he did not accept much in
the way of overtime at the present time because of the condition of his back.
At home, Bruce has difficulty doing the projects that he used to do. He stated
that his wife does most of the work in cleaning around the house, and that the projects
that he wished to do had for the most part been left undone because of the pain in his
back. He is not able to shovel snow, and although he is able to ride on a riding mower,
he does not do this for long periods of time. Bruce described a situation where he does
much less at home than he had done previously, even after his shoulder surgery.
In the post hearing brief, Bruce concedes that more than two years elapsed
between the time of the May 23, 2010 work injury and the filing of his original notice and
petition on June 20, 2012. Despite his assertion at hearing that he did not believe the
condition to be serious until mid-summer or fall of 2010, he thought the injury serious
enough to report it to PF and seek medical care. He received work restrictions and
physical therapy from this initial treatment. He testified that he was never symptom free
after the incident despite initial treatment. (Tr-41) These facts establish that Bruce
thought the injury serious prior to June 20, 2010, or at least he should have realized its
seriousness before that time.
Bruce is also asserting a cumulative injury to his low back with a manifestation
date of June 19, 2012. Claimant explains that June 19, 2012 was the last day he
worked at BF and the last day of exposure to his injurious work environment prior to
filing his petition. In the post hearing brief, he admits that other manifestation dates for
this cumulative trauma are possible.
BAKER V. BRIDGESTONE/FIRESTONE
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To support the claim of cumulative trauma, Bruce relies upon his testimony that
his work activity from 2010 through 2012 and even at present continues to bother his
back. To support this claim medically, claimant relies on the views of Robin
Sassman, M.D., the doctor that performed an independent medical evaluation at the
request of Bruce’s attorney. Although she likewise causally relates the back condition
to the original May 23, 2010 injury, the doctor states as follows:
Mr. Baker has continued to work at Firestone. His duties include
inspecting all hoist systems in the plant and installing new hoist systems
and ensuring that they meet all applicable standards. He also performed
repairs on these systems as needed. This job requires repetitive stooping,
bending, kneeling, standing and walking. He also has to use vibratory
tools. All of these activities can act to aggravate an underlying back injury
and arthritis. (emphasis added)
(Ex. 14-52)
In response, defendants state that all doctors, including Dr. Sassman relate the
back problems to only the original injury on May 23, 2010. They also note that claimant
himself in his deposition testified that he suffered no new injuries to his low back since
the incident of May 23, 2010. (Ex. B-25, page two of the exhibit)
I am unable to find that Bruce suffered a cumulative trauma injury to his back that
significantly contributes to his current back problems. Only Dr. Sassman talks about
aggravations at work and she only opines that such is possible, not that it actually
occurred. She also notes that there can be just underlying arthritis. I would agree that it
is quite likely that Bruce suffered back pain while doing his work, but the issue of
whether that pain and activity was injurious or worsened his back condition is a medical
issue and medical expert opinion is lacking in this record to support a finding of a
cumulative trauma. Finally, Bruce himself did not believe his pain was a new injury.
Further findings are unnecessary.
CONCLUSIONS OF LAW
I. The claimant has the burden of proving by of 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
BAKER V. BRIDGESTONE/FIRESTONE
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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.
When the injury develops gradually over time, the cumulative injury rule applies.
The date of injury for cumulative injury purposes is the date on which the disability
manifests. Manifestation is best characterized as that date on which both the fact of
injury and the causal relationship of the injury to the claimant’s employment would be
plainly apparent to a reasonable person. The date of manifestation inherently is a fact
based determination. The fact-finder is entitled to substantial latitude in making this
determination and may consider a variety of factors, none of which is necessarily
dispositive in establishing a manifestation date. Among others, the factors may include
missing work when the condition prevents performing the job, or receiving significant
medical care for the condition. McKeever Custom Cabinets v. Smith, 379 N.W. 2d 368
(Iowa 1985). In McKeever, the court indicates that whether or not a workers has
suffered a cumulative trauma is largely a medical question. Id.
In the case sub judice, I found that claimant failed to carry his burden of proof
and demonstrated by the greater weight of the evidence that he suffered a cumulative
or gradual injury to his back.
II. Iowa Code section 85.26(1) requires an employee to bring an original
proceeding for benefits within two years from the date of the occurrence of the injury if
the employer has paid the employee no weekly indemnity benefits for the claimed injury.
That the employee failed to bring a proceeding within the required time period is an
affirmative defense which the employer must plead and prove by a preponderance of
the evidence. Dart v. Sheller-Globe Corp., II Iowa Industrial Comm’r Rep. 99 (App.
1982)
However, the time period both for giving notice and filing a claim does not begin
to run until the claimant as a reasonable person, should recognize the nature,
seriousness, and probable compensable character of the injury, the so-called discovery
rule. The reasonableness of claimant's conduct is to be judged in light of claimant's
education and intelligence. Claimant must know enough about the condition or incident
to realize that it is work connected and serious. Orr v. Lewis Cent. Sch. Dist., 298
N.W.2d 256 (Iowa 1980); Robinson v. Department of Transp., 296 N.W.2d 809 (Iowa
1980).
In this case, claimant must rely upon application of the discovery rule for the
May 23, 2010 injury claim as more than two years elapsed between the date of injury
and the filing of his petition. There is no dispute that claimant knew his back condition
was work related immediately and he quickly reported the injury. The sole issue is
when claimant realized that her injury was “serious,” a rather nebulous term that is more
subjective than objective in its application. Claimant relies upon the holding in Herrera
v. IBP, Inc., 633 N.W.2d 284 (Iowa 2001. In Herrera, the Court refined the definition of
when an injured worker should know the seriousness of a work injury by holding that the
BAKER V. BRIDGESTONE/FIRESTONE
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limitations period does not begin until claimant knows that a work injury will have a
permanent adverse impact on employment or employability. Id. at 288.
I have no quarrel with claimant’s testimony that he was not aware that her injury
would adversely impact her job until the summer or fall of 2010. However, the problem
with claimant’s reliance on the Herrera decision is that the Herrera case involved a
cumulative trauma injury, not a single specific trauma. This is important in that the
current workers’ compensation commissioner held in Clark v. City of Spencer, File No.
5017329 (App. September 11, 2007) that the holding in Herrera concerning when to
apply the discovery rule is applicable only to cumulative trauma injuries, not to the
specific traumatic type of injuries involved in this case. The decision in Clark is a
binding agency precedent that I am obligated to follow. Consequently, the failure to find
a cumulative trauma injury and the finding that claimant should have known that his
condition was serious when he sought care and received significant treatment for his
back in May 2010 is fatal to this claim.
Claimant asserts that the Clark decision is no longer a valid precedent in light of
a subsequent decision of the Iowa Supreme Court in Midwest Ambulance Service v.
Ruud, 754 N.W. 2d 860, 862 (Iowa 2008) which claimant asserts extended the Hererra
rule to single traumatic injury cases. I believe that one could reasonably interpret Ruud
in the manner asserted by claimant. However, I also believe that one could also
reasonably argue that Ruud was a cumulative trauma case after reading both the
language of the Court and the agency appeal decision that the Rudd Court sustained.
Ruud v. Midwest Ambulance Service, File No. 5008925 (App. November 15, 2005).
The initial injury was a dislocated shoulder and thereafter there was a series of
dislocations from activity both at home and at work. The statute was tolled to the time
when claimant’s pain and an inability to relocate the shoulder on her own compelled her
to seek more extensive treatment.
Consequently, there is no clear inconsistency between Clark and Ruud. Absent
such a clear inconsistency, the Clark case remains a binding precedent. Claimant
should address his concerns about Clark to the Commissioner on appeal.
Therefore, the claim for weekly benefits is denied.
II. Iowa Code section 85.27 provides that the employer is to provide reasonable
medical treatment for work injuries. Claimant asserts that there is no statute of
limitations for medical treatment claims. There was a time that was true in Iowa.
However, the legislature saw fit to amend Iowa Code section 85.26(2) to provide statute
of limitations for medical treatment claims. This agency can now only award medical
benefits pursuant to Iowa Code section 85.27 if any of the following has occurred:
(1) An award for benefits has been made by this agency and the payments are
not commuted;
BAKER V. BRIDGESTONE/FIRESTONE
Page 8
(2) There is an approved agreement for settlement and the payments have not
been commuted; or,
(3) A denial of liability was not filed and notice of denial was not mailed to the
injured worker within six months of the commencement of weekly compensation
benefits.
As none of the three circumstances has occurred in this case, the claim for
medical benefits must also be denied.
The claim for benefits under Iowa Code section 85.39 is likewise extinguished by
Iowa Code section 85.26.
ORDER
1. Claimant shall take nothing from these proceedings.
2. Claimant shall pay the costs of this action pursuant to administrative rule 876
IAC 4.33.
Signed and filed this __5th ___ day of November, 2013.
Copies to:
Martin Ozga
Attorney at Law
1441 – 29TH Street, Suite 111
West Des Moines, Iowa 50266
mozga@nbolawfirm.com
Timothy W. Wegman
Attorney at Law
6800 Lake Drive, Suite 125
West Des Moines, IA 50266
tim.wegman@peddicord-law.com
LPW/kjw