May 13, 2014 - California Workers Compensation Cases and

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BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______________________________________________________________________
:
DEBRA JOHANN,
:
:
Claimant,
:
:
vs.
:
:
File No. 5042392
UNIVERSITY OF IOWA HOSPITALS
:
AND CLINICS,
:
:
ARBITRATION
STATE OF IOWA,
:
:
DECISION
Self-Insured,
:
Insurance Carrier,
:
Defendant.
: Head Note Nos.: 1802, 1803, 2500, 4100
______________________________________________________________________
STATEMENT OF THE CASE
Debra Johann, claimant, has filed a petition in arbitration and seeks workers’
compensation benefits from University of Iowa Hospitals and Clinics, employer, selfinsured by the State of Iowa, defendant.
This matter was heard in Des Moines, Iowa on September 10, 2013 and was fully
submitted on November 4, 2013. The record consists of the testimony of claimant and
of Jon Maynard as well as claimant’s exhibits 1 through 41 and 43 through 551, and
defendant’s exhibits A through R. Briefs of the parties submitted were reviewed.
ISSUES
The parties have submitted the following issues for determination:
1
1.
The ending date of temporary total disability or healing period benefits.
2.
Whether the claimant is entitled to permanent partial disability benefits or
permanent total disability benefits, if any.
3.
Whether claimant is entitled to be found permanently and totally disabled
under Iowa Code section 85. 34(3) or the “odd-lot” doctrine.
4.
Commencement date of any permanent disability benefits.
Exhibits 4, 5, 28, 29, 35, 38, and 49 were “reserved” and not submitted.
JOHANN V. UNIVERSITY OF IOWA HOSPITALS AND CLINICS
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5.
Whether claimant is entitled to payment of certain medical bills and medical
mileage.
6.
Assessment of costs.
STIPULATIONS
The parties have agreed claimant sustained an injury on May 3, 2011 that arose
out of and in the course of her employment with the University of Iowa Hospitals and
Clinics. The parties agree the claimant’s weekly rate is $382.12 per week. The parties
stipulated that defendant is entitled to a credit for long term disability benefits that
defendant has been paying.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The undersigned having considered all of the testimony and evidence in the
record finds:
Debra Johann, claimant, was 47 years old at the time of the hearing. Claimant
graduated from high school and attended one semester at a community college.
Claimant graduated from cosmetology school and was licensed to provide cosmetology.
(Transcript page 31) Claimant obtained an intermediate certification for EMT from
Kirkwood Community College. Claimant’s tax records show she earned $4,360.00 in
2008, $2,105.00 in 2009, $5,827.00 in 2010, $20,689.00 in 2010 and $10,476.00 in
2011. (Ex. 25, p. 1) Claimant worked for defendant University of Iowa Hospitals and
Clinics from October 2010 through May 2012. (Ex. 11, p. 7) At the time of the hearing
claimant was attending Kirkwood Community College, majoring in health information
technology. (Ex. 11, p. 3) She expected to complete her degree in 2016. (Tr. p. 32;
Ex. 27, p. 5) Claimant testified she arranged to go back to Kirkwood to get this degree
after she was laid off by the University of Iowa Hospitals and Clinics (UIHC) in May
2012. (Tr. p. 33) Claimant’s work history consists of some food service, food
processing at a factory, cosmetology and EMT before she was hired by the UIHC on
October 7, 2010 as a certified nursing assistant in the emergency department. (Ex. 27,
pp. 3, 4) Claimant said she was generally in good health before the May 3, 2011 injury.
She had no work restrictions. Claimant said her doctors have restricted her to
sedentary work at this time. (Tr. p. 36)
Claimant testified that she was not allowed to return to work as a CNA in the
emergency room after her injury. (Tr. p. 43) Claimant was off work for about six weeks
and was offered a position in the EMSLRC department at the UIHC. (Tr. p. 50)
Claimant performed data processing and assisted in a research project in the EMS
departments. (Ex. 11, pp. 8, 9)
Claimant and a co-worker were moving boxes of copy paper on May 5, 2011 at
work. Claimant was lifting a box and felt a pop in her back. Claimant finished moving
the boxes of paper and finished her shift. Claimant reported her injury to her employer
JOHANN V. UNIVERSITY OF IOWA HOSPITALS AND CLINICS
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on that day. (Ex. 1, p. 1) Claimant was in pain the next morning and had her daughter
take her to the emergency room. (Tr. p. 46) Claimant testified the box of paper
weighed about 50 pounds. (Ex. 11, p. 11; Tr. p. 41) Nicole Horning, who was working
with claimant at the time of her injury, provided two statements. On one statement she
said the boxes of paper claimant was lifting were approximately 25 pounds. The boxes
were full of paper. (Ex. 44, p. 2) In her second statement she stated that the boxes of
paper were full when claimant moved them on May 3, 2011. (Ex. 30, p. 2) Based upon
claimant’s testimony, witness testimony and the evidence, I find claimant was lifting a
box of paper that weighed approximately 50 pounds when she injured her lower back.
On May 4, 2011 claimant was seen at the UIHC Emergency Room. Claimant
had low back pain since the previous night, weakness and numbness throughout the
right lower extremity. (Ex. 2, p. 2) An MRI was performed and claimant was diagnosed
with low back pain with L5 radiculopathy due to disc herniation. (Ex, 2, p. 6) Radiology
reported, “L4-5 R paracentral disc herniation abutting L5 and possibly S1 nerve roots.
This is new since 2005 exam.” (Ex. 2, p. 10) The impression was, “1. Right paracentral
disc protrusion with annular tear at L4-L5.” (Ex. 2, p. 11) Andrew Weiss M.D.’s
impression was “Acute L4-L5 paracentral disc herniation. (Ex. 2, p. 12)
On May 11, 2011 Sergio Mendoza, M.D. examined claimant. His assessment
was a work-related injury with an L4-L5 right-sided disc herniation and recommended a
selective L5 nerve root injection. (Ex. 2, p. 38) The injection was performed on May 20,
2011. Dr. Mendoza’s assessment on May 23, 2011 was “L4-L5 disc herniation. Rightsided radiculopathy. Right-sided groin pain.” (Ex. 2, p. 43) On August 3, 2011
Dr. Mendoza noted claimant had minimal improvement with conservative measures and
recommended surgical intervention. (Ex. 2, p. 69) On October 14, 2011, Dr. Mendoza
performed a pre-surgery physical. Dr. Mendoza advised claimant that the surgery was
likely only to help the leg pain and not the back pain. (Ex. 2, p. 27) Claimant had back
surgery on October 20, 2011, for laminotomy with decompression of nerve roots,
including partial foraminotomy and/or excision of herniated disk. The post-operative
diagnosis was lumbar radiculopathy. (Ex. 2, p. 86) The surgery identified a large
protruding disk. (Ex. 2, p. 87) On November 1, 2011 claimant was allowed to return to
sedentary work. (Ex. 2, p. 113)
On August 10, 2011 claimant underwent a functional capacity evaluation (FCE).
The report stated the claimant showed inconsistent reliability. (Ex. R, p. 1) The report
stated claimant could work within the medium category of work. (Ex. R, p. 2)
Claimant had an EMG/nerve conduction study in December 2012, which did not
show lumbosacral radiculopathy but did show evidence of a polyneuropathy. (Ex. A, p.
127; Ex. 2, p. 185) Claimant was examined at UIHC for low back pain and right lower
extremity pain on June 28, 2013. (Ex. 2, p. 203) The assessment was myofascial
muscle pain and noted that claimant’s depression and anxiety were a barrier to the
treatment of the pain. (Ex. 2, p. 209) On August 6, 2013 claimant was evaluated at the
Community Health Center. Claimant was assessed with major depressive disorder,
recurrent, moderate, with underlying dysthymia. (Ex. 34, p. 2)
JOHANN V. UNIVERSITY OF IOWA HOSPITALS AND CLINICS
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On September 30, 2011, Anthony Sciorrotta, D.O. performed a record review and
report. (Ex. 6, pp. 1 – 11) Dr. Sciorrotta did not examine the claimant. Dr. Sciorrotta
wrote,
It is my opinion that Ms. Johann sustained a lumbar strain/sprain on
5/3/11 while lifting a box of paper. Prior to this injury Ms. Johann had a
long history of lower back pain, lower extremity weakness, as well as
multiple joint pains. As documented in the medical review, Ms. Johann
was seen on multiple occasions in the past for these complaints.
…
In my opinion, the work-related incident of 5/3/11 resulted in an
exacerbation of Ms. Johann’s preexisting conditions.
…
As stated above, it is my opinion within a reasonable degree of
medical certainty that the work incident on 5/3/11 did not cause and/or
accelerate the need for the recommended L4-5 microdiskectomy.
(Ex. 6, pp. 9, 10)
Dr. Sciorrotta noted that claimant had a number of the same symptoms before
her May 3, 2011 injury as after the work injury. Dr. Sciorrotta stated claimant could be
placed at maximum medical improvement as of June 29, 2011. (Ex. 6, p. 10)
On August 15, 2012 Dr. Mendoza wrote claimant’s attorney. In this letter
Dr. Mendoza stated the claimant has a well-documented history of fibromyalgia and
musculoskeletal complaints going back several years. Dr. Mendoza wrote that claimant
reported a traumatic injury lifting a ream of paper. Dr. Mendoza said that the lifting of a
ream of paper was not the cause of any permanent impairment. (Ex. D, p.1) Claimant’s
attorney contacted Dr. Mendoza and informed him that claimant was carrying several
reams of paper weighing up to 50 pounds when she injured her back. (Ex. 8, p. 1) On
September 7, 2012 Dr. Mendoza revised his prior opinion and concluded that the
claimant carrying several reams of paper was significant enough to be an acute
aggravation of her symptoms and caused the need for her back surgery. (Ex. 9, p. 1) If
the box of paper weighed 25 pounds or less Dr. Mendoza was not able to state with 51
percent medical certainty that the lifting caused or accelerated the need for surgery.
(Ex. 10, p. 1)
Dr. Mendoza examined claimant on July 3, 2013. Dr. Mendoza’s assessment
was,
Debra Johann is a 45-year-old female who is status post L4-L5
laminectomy and diskectomy on October 20, 2011. She remains painful in
her right lower extremity, although there is no clear anatomical cause for
JOHANN V. UNIVERSITY OF IOWA HOSPITALS AND CLINICS
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her pain. She is likely to have central sensitization syndrome in light of the
chronic pain that was caused from a previous ruptured disk.
(Ex. 2, p. 213)
Dr. Mendoza recommended an intensive back rehab program and claimant
continue sedentary work. (Ex. 2, p. 213) On July 24, 2013 Joseph Chen, M.D.
examined claimant for her chronic low back pain. Dr. Chen noted claimant had
predominantly mechanical and myofascial low back pain. Dr. Chen recommended
claimant would benefit from the Spine Center’s approach. (Ex. 2, p. 225) Dr. Chen did
not recommend a spinal cord stimulator for the claimant. (Ex. 2, p. 226)
On August 13, 2013 claimant was examined at the Chronic Pain Clinic at UIHC
for diffuse chronic pain. (Ex. 2, pp. 231 – 240) The examination recommended a
multimodality approach to manage claimant’s pain including pain psychologist, home
exercise, aqua therapy and a TENS unit. (Ex. 2, pp. 237, 238)
On October 6, 2011 the defendant sent claimant a letter informing claimant,
based upon a report of Dr. Sciorrotta, the employer was terminating her workers’
compensation benefits and denying further medical care. (Ex. 7, p. 1) Claimant’s last
payment of workers’ compensation benefits was November 4, 2011. (Ex. H, p. 1)
On October 20, 2011 claimant had back surgery. (Tr. p. 54) Claimant returned
to work after her surgery on November 7, 2011. Claimant worked in two different
positions, EMLRC and ER Research. Both were sedentary work that claimant could
perform. (Tr. p.122) Claimant was working 36 hours per week until her termination.
(Tr. p. 77)
Claimant received a notice on May 16, 2012 she was being terminated after a
three month ADA referral period, and the employer did not have a position available for
her. (Ex. 45, p. 1) Claimant testified that she was not allowed to work after May 10,
2012. (Tr. p. 60) Claimant looked for clerical work, work through temp agencies and
work at ACT, Geico and some health care positions after her discharge. (Tr. p. 65; Ex.
24, pp. 1 – 17) Claimant has asked for and is receiving accommodation by Kirkwood
Community College. She has been granted additional time to take tests. (Tr. p. 63; Ex.
52, p.1) Claimant was an owner-operator of a hair salon from 1998 until 1994 in
Newton, Iowa and operated a hair salon in Blairstown, Iowa from 1995 until 2010. (Tr.
p. 110)
Claimant testified and provided in an answer to an interrogatory that she is no
longer able to work in her yard, vacuum, scrub floors and perform many household
chores. (Ex. 27, p. 17) Claimant received long term disability through the UIHC. (Ex.
K, p. 1)
Claimant is requesting medical expenses. (Ex. 39) Claimant testified the
acupuncture, massage and chiropractic care helped her back pain. (Tr. pp. 148 – 150;
JOHANN V. UNIVERSITY OF IOWA HOSPITALS AND CLINICS
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Ex. 27, p. 19) Claimant contacted the UIHC on July 8, 2011 and asked if acupuncture
and massage therapy could be paid by workers’ compensation and was told it would not
be paid for by workers’ compensation. (Ex. 2, p. 65) On January 6, 2012 Dr. Mendoza
wrote, “Debra Johann suffers from right L5 radiculopathy and would benefit from regular
acupuncture treatments to help with pain control.” (Ex. 2, p. 162) Claimant said that the
acupuncture she had helped with her pain. (Ex. 11, p. 16) Claimant said the
chiropractic care at Washington Street Chiropractic and HealthSource did not improve
her symptoms. (Ex. 11, p. 16) Claimant reported that the massage helped her for a
short time. (Ex. 11, p. 16) Claimant is requesting mileage from October 2011 that is
identified in Exhibit 40. (Tr. p. 138)
Jon Maynard was called by the claimant to testify. Mr. Maynard and claimant
have been dating since July, 2009 and now live together. (Tr. p. 14) Mr. Maynard said
that before the work injury of May 3, 2011 claimant led an active lifestyle, which
included bike riding, hiking, gardening and running her beauty shop. Mr. Maynard
testified claimant’s activities have been significantly changed after her work injury of
May 3, 2011. Mr. Maynard stated he performs the household chores or hires them out.
He said claimant has difficulty in traveling and that she is not able to go out like she did
before her injury. (Ex. 11, pp. 22, 23)
Claimant has an extensive medical history before the May 3, 2011 injury. (Ex.
27, pp. 7 – 9) Claimant had extensive burns from a house fire and PTSD from the
trauma caused by the fire. She has had a history of migraines. Claimant was in a
motor vehicle accident in 1985 and fractured some vertebrae in her back. (Tr. p. 88)
Claimant was receiving chiropractic treatment from 2003 through 2005 for her lower
back and right hip. (Ex. C, pp. 1 – 9) Claimant had chiropractic care from December
2010 through April 2011. (Ex. C, pp. 10 – 23) Claimant testified the fracture was in the
thoracic spine and did not cause her any issues. (Tr. p. 91) Claimant was seen at the
UIHC in May 2005 for a two month history of low back pain. (Ex. A, pp. 1 – 10) She
also was seen in October 2005. The results of her examinations showed she had mild
degenerative disk disease at L4-L5 and old compression fracture vs. physiologic
narrowing at T11 and T12. (Ex. A, p. 10) Claimant was seen at UIHC in April 2008
after having 72 hours of low back pain. (Ex. A, p. 28) Claimant was diagnosed with
fibromyalgia in May 2010. (Ex. A, p. 79) In June 2010, claimant was diagnosed with
depression. (Ex. A, p. 94)
Claimant had total left knee arthroplasty in 2007. (Ex. A, p. 52) On October 26,
2008 claimant fell and hurt her knee and lower back. (Ex. A, p. 59) Claimant was
assessed with lumbar muscle strain. (Ex. A, p. 61)
Claimant saw Charles Clark, M.D. on March 26, 2011 as a follow-up to a knee
replacement he performed in 2007. (Ex. 31, p. 2) Claimant said she was complaining
of general joint pain, and the pain she felt on May 5, 2011 was different than her
complaint to Dr. Clark. (Tr. p. 49) Dr. Clark noted increased pain with straight-leg raise.
He noted there was a possibility of radiculopathy, but that seems to be less likely. He
recommended a return visit to the clinic in two years. His diagnosis was hip pain,
JOHANN V. UNIVERSITY OF IOWA HOSPITALS AND CLINICS
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arthritis and foot pain. (Ex. 31, p. 4) Claimant reported diffuse joint pain on April 14,
2011. (Ex. A, p. 107) On July 31, 2013 Dr. Clark wrote to claimant’s attorney that he
did not assess that claimant had radiculopathy; he only raised the possibility. (Ex. 33, p.
1)
On May 16, 2013, Robert Milas, M.D. performed an independent medical
examination (IME). Dr. Milas wrote, “My impression at this time is that of a lumbar
radiculopathy secondary to the herniated lumbar disc at the L4-L5 level.” (Ex. 13, p. 2)
Dr. Milas rated the claimant with a 23 percent impairment to the whole body. He did not
believe claimant would benefit from additional medical and surgical interventions and
said claimant should be limited to sedentary work. He put the claimant at maximum
medical improvement as of March 13, 2013. (Ex. 13, p. 2)
On May 17, 2013, Richard Neiman, M.D. performed an IME. (Ex. 16, pp. 1 – 6)
Dr. Neiman’s opinion was the incident on May 3, 2011 was the cause of claimant’s back
problems and the resulting surgery. He provided a 20 percent whole person
impairment. He provided restrictions of lifting repetitively 5 to 10 pounds, maximum 20
pounds, not over 4 times an hour. He recommended avoiding excessive flexion and
extension, lateral flexion and rotation of the spine. He recommended that claimant be
able to change positions--sitting to standing, once an hour. (Ex. 16, p. 5) Dr. Neiman
disagreed with the IME performed by Dr. Sciorratta.
Based upon my review of the history, I strongly disagree with the
reports of Dr. Anthony Sciorratta. … I honestly have no idea where the
independent reviewer is coming from. The objective findings and the
history is about as good as one could find. To state this is a pre-existing
problem to the incident is inconsistent with the records that have been
provided and the objective MRI scans.
(Ex. 16, pp. 4, 5)
On July 7, 2013 Kent Jayne, Diplomate, American Board of Vocational Experts,
provided a vocational economic assessment. (Ex. 18, pp. 1 – 17) Mr. Jayne concluded
claimant would not be able to perform her past work in the emergency department or
her work as a cosmetologist based upon the restriction provided by Dr. Neiman. (Ex.
18, p. 10) Mr. Jayne noted that the claimant’s medications and her chronic pain may
have affected her cognitive abilities, which he measured to below average. (Ex. 18, pp.
11, 12) Mr. Jayne concluded claimant was precluded from working in any stable branch
of the labor market. (Ex. 18, p. 17)
Shannon Ford, MA, CRC, provided a vocational assessment report on
August 13, 2013. (Ex. E, pp. 1 – 11) Ms. Ford concluded with the restrictions provided
by Dr. Mendoza, Dr. Milas and Dr. Neiman, claimant could perform sedentary work,
although she noted claimant could not perform her past work. (Ex. E, p. 8)
JOHANN V. UNIVERSITY OF IOWA HOSPITALS AND CLINICS
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On August 20, 2013 Mr. Jayne responded to Ms. Ford’s report. He noted
Ms. Ford did not meet with claimant. (Ex. 47, p. 1) He also opined Ms. Ford did not
properly consider the objective testing he had performed and did not believe claimant
met the average worker traits for six jobs Ms. Ford recommended. (Ex. 47, p. 3)
The first issue to determine is whether the claimant has proven by a
preponderance of the evidence that the injury of May 3, 2001 has caused a permanent
injury.
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).
While a claimant is not entitled to compensation for the results of a preexisting
injury or disease, its mere existence at the time of a subsequent injury is not a defense.
Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the
claimant had a preexisting condition or disability that is materially aggravated,
accelerated, worsened or lighted up so that it results in disability, claimant is entitled to
recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962);
Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961).
Dr. Sciorrotta is the only medical opinion that states the work incident on May 3,
2011 did not cause a permanent injury. I do not find his opinion as convincing as the
medical opinions of Dr. Mendoza, Dr. Milas and Dr. Newman. These physicians opined
that the May 3, 2011 work injury was the cause of a permanent disability. Dr. Sciorrotta
did not examine the claimant. All three physicians who were of the opinion that the
May 3, 2011 work injury did cause a permanent injury, Dr. Mendoza, Dr. Milas and
Dr. Newman, examined the claimant. Dr. Mendoza performed surgery on the claimant
JOHANN V. UNIVERSITY OF IOWA HOSPITALS AND CLINICS
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after Dr. Sciorrotta issued his report. Dr. Mendoza has extensive contact with the
claimant. The MRI taken shortly after the injury showed a herniated disk. While
claimant complained of joint pain in March 2011, the symptoms were not the same nor
as severe as after her May 3, 2011 injury. While the claimant had a documented history
of multiple medical problems, including her lower back before the May 3, 2011 injury,
the evidence shows the incident on May 3, 2011 has caused a permanent injury and
permanent impairment. The preponderance of the evidence is that the claimant has a
permanent injury as a result of her lifting boxes at work. The surgery on October 20,
2011 was as a result of her work injury.
The next issue to determine is the duration of 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, 312
N.W.2d 60 (Iowa App. 1981). Healing period benefits can be interrupted or intermittent.
Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
The only medical opinion to provide a date for the claimant’s MMI is Dr. Milas.
That date is May 16, 2013. I find that this claimant is entitled to additional healing
period benefits. Claimant was not doing sedentary work for the UIHC when she was
terminated in May 2012. It was not substantially similar work to the work as a nurse
assistant in the emergency department. Claimant is entitled to healing period benefits
from November 4, 2011 to March 13, 2013 during the period claimant was not receiving
wages from UIHC.
The next issue to determine is the extent of claimant’s industrial disability.
Claimant has asserted that she is an odd-lot employee and entitled to permanent
total disability based upon the odd-lot doctrine.
In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), the Iowa court
formally adopted the “odd-lot doctrine.” Under that doctrine a worker becomes an
odd-lot employee when an injury makes the worker incapable of obtaining employment
in any well-known branch of the labor market. An odd-lot worker is thus totally disabled
if the only services the worker can perform are “so limited in quality, dependability, or
quantity that a reasonably stable market for them does not exist.” Id., at 105.
Under the odd-lot doctrine, the burden of persuasion on the issue of industrial
disability always remains with the worker. Nevertheless, when a worker makes a prima
facie case of total disability by producing substantial evidence that the worker is not
employable in the competitive labor market, the burden to produce evidence showing
availability of suitable employment shifts to the employer. If the employer fails to
JOHANN V. UNIVERSITY OF IOWA HOSPITALS AND CLINICS
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produce such evidence and the trier of facts finds the worker does fall in the odd-lot
category, the worker is entitled to a finding of total disability. Guyton, 373 N.W.2d at
106. Factors to be considered in determining whether a worker is an odd-lot employee
include the worker’s reasonable but unsuccessful effort to find steady employment,
vocational or other expert evidence demonstrating suitable work is not available for the
worker, the extent of the worker’s physical impairment, intelligence, education, age,
training, and potential for retraining. No factor is necessarily dispositive on the issue.
Second Injury Fund of Iowa v. Nelson, 544 N.W.2d 258 (Iowa 1995). Even under the
odd-lot doctrine, the trier of fact is free to determine the weight and credibility of
evidence in determining whether the worker’s burden of persuasion has been carried,
and only in an exceptional case would evidence be sufficiently strong as to compel a
finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106.
Claimant testified she was able to perform the EMLRC and ER Research work at
UIHC under the restrictions provided by Dr. Mendoza, Dr. Milas and Dr. Neiman. (Tr.
pp. 121, 122) Claimant was working 36 hours in those positions. Claimant testified she
could perform either of those jobs if they were available full time. (Tr. p. 123) Claimant
looked for work briefly after her termination and then attended college. Claimant
resumed her job search in June, July and August of 2013. (Ex. 24, pp. 4 – 17)
Claimant has been able to attend college and maintain a good GPA. Claimant provided
evidence from her instructors and former supervisor at UIHC that shows her ability to
work in the competitive labor market. (Ex. 23, pp. 1 – 3) Claimant has not shown
substantial evidence that she is not employable in the competitive labor market.
Assuming arguendo claimant has made such a finding, I find that defendant has
provided evidence that claimant can perform work in the competitive labor market.
Claimant testified she could work. Ms. Ford provided opinion that claimant could
perform competitive work. While Mr. Jayne has a different opinion, Mr. Jayne did not
explain how claimant was able to successfully perform work after her surgery, and
claimant testified she could perform work.
While claimant is not an odd-lot employee she does have a significant
impairment.
Since claimant has an impairment to the body as a whole, an industrial disability
has been sustained. Industrial disability was defined in Diederich v. Tri-City R. Co., 219
Iowa 587, 258 N.W. 899 (1935) as follows: "It is therefore plain that the legislature
intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and
not a mere 'functional disability' to be computed in the terms of percentages of the total
physical and mental ability of a normal man."
Functional impairment is an element to be considered in determining industrial
disability which is the reduction of earning capacity, but consideration must also be
given to the injured employee's age, education, qualifications, experience, motivation,
loss of earnings, severity and situs of the injury, work restrictions, inability to engage in
employment for which the employee is fitted and the employer's offer of work or failure
JOHANN V. UNIVERSITY OF IOWA HOSPITALS AND CLINICS
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to so offer. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Olson v.
Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada
Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).
Compensation for permanent partial disability shall begin at the termination of the
healing period. Compensation shall be paid in relation to 500 weeks as the disability
bears to the body as a whole. Section 85.34.
The refusal of defendant-employer to return claimant to work in any capacity is,
by itself, significant evidence of a lack of employability. Pierson v. O’Bryan Brothers,
File No. 951206 (App. January 20, 1995). Meeks v. Firestone Tire & Rubber Co., File
No. 876894, (App. January 22, 1993); See also, 10-84 Larson’s Workers’
Compensation Law, section 84.01; Sunbeam Corp. v. Bates, 271 Ark. 609 S.W.2d 102
(1980); Army & Air Force Exchange Service v. Neuman, 278 F. Supp. 865 (W.D. La.
1967); Leonardo v. Uncas Manufacturing Co., 77 R.I. 245, 75 A.2d 188 (1950). An
employer who chooses to preclude an injured worker’s re-entry into its workforce likely
demonstrates by its own action that the worker has incurred a substantial loss of
earning capacity. As has previously been explained in numerous decisions of this
agency, if the employer in whose employ the disability occurred is unwilling to
accommodate the disability, there is no reason to expect some other employer to have
more incentive to do so. Estes v. Exide Technologies, File No. 5013809 (App.
December 12, 2006).
I considered the vocational evaluations submitted in this case. I do not adopt
either one entirely. As noted above, Mr. Jayne did not convincingly explain how
claimant was able to perform work for UIHC for a number of months.
I find that claimant is limited to sedentary work. She has restrictions as set forth
by Dr. Neiman. Claimant cannot work as a cosmetologist, ENT or as a nurse assistant
in the emergency department. She has significant lifting, twisting, and bending
restrictions. Claimant’s depression adversely affects her pain coping skills. Also
significant is that the UIHC was not able to identify a position that claimant was capable
of performing.
Claimant has been able to attend college. She was able to work 36 hours a
week after her surgery. Claimant has been motivated to obtain training in a field that
will let her work with her restrictions.
Considering all of the factors for industrial disability, I find claimant has 70
percent loss of earning capacity. This entitles claimant to 70 percent industrial
disability, 350 weeks of permanent partial disability benefits.
The next issue to decide is reimbursement of medical expenses.
The employer shall furnish reasonable surgical, medical, dental, osteopathic,
chiropractic, podiatric, physical rehabilitation, nursing, ambulance, and hospital services
JOHANN V. UNIVERSITY OF IOWA HOSPITALS AND CLINICS
Page 12
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).
Iowa Code section 85.27 provides.
1. The employer, for all injuries compensable under this chapter or
chapter 85A, shall furnish reasonable surgical, medical, dental,
osteopathic, chiropractic, podiatric, physical rehabilitation, nursing,
ambulance and hospital services and supplies therefor and shall allow
reasonably necessary transportation expenses incurred for such services.
Defendant shall pay for the medical expenses related to claimant’s May 3, 2011
injury.
In this case claimant is requesting reimbursement of medical expenses. The
defendant denied liability for the injury after October 6, 2011. (Ex.7, p.1) The Iowa
Supreme Court stated that when an employer denies a claim, the claimant is entitled to
obtain medical care and recover reasonable medical expenses.
In Bell Bros. Heating v. Gwinn, 779 N.W.2d 193, 204 (Iowa 2010) the court
stated,
Thus, the statute contemplates that an injured employee may select
his or her own medical care when the employer abandons the injured
employee through the denial of compensability of the injury. When this
circumstance occurs, the employee may subsequently recover the costs
of the reasonable medical care obtained upon proof of compensability of
the injury derived from the statutory duty of the employer to furnish
reasonable medical care and supplies for all compensable injuries.
Evidence in administrative proceedings is governed by section 17A.14. The
agency’s experience, technical competence, and specialized knowledge may be utilized
in the evaluation of evidence. The rules of evidence followed in the courts are not
controlling. Findings are to be based upon the kind of evidence on which reasonably
prudent persons customarily rely in the conduct of serious affairs. Health care is a
serious affair.
Prudent persons customarily rely upon their physician’s recommendation for
medical care without expressly asking the physician if that care is reasonable. Proof of
reasonableness and necessity of the treatment can be based on the injured person’s
testimony. Sister Benedict v. St. Mary’s Corp., 255 Iowa 847, 124 N.W.2d 548 (1963)
JOHANN V. UNIVERSITY OF IOWA HOSPITALS AND CLINICS
Page 13
It is said that “actions speak louder than words.” When a licensed physician
prescribes and actually provides a course of treatment, doing so manifests the
physician’s opinion that the treatment being provided is reasonable. A physician
practices medicine under standards of professional competence and ethics. Knowingly
providing unreasonable care would likely violate those standards. Actually providing
care is a nonverbal manifestation that the physician considers the care actually provided
to be reasonable. A verbal expression of that professional opinion is not legally
mandated in a workers' compensation proceeding to support a finding that the care
provided was reasonable. The success, or lack thereof, of the care provided is
evidence that can be considered when deciding the issue of reasonableness of the
care. A treating physician’s conduct in actually providing care is a manifestation of the
physician’s opinion that the care provided is reasonable and creates an inference that
can support a finding of reasonableness. Jones v. United Gypsum, File 1254118 (App.
May 2002); Kleinman v. BMS Contract Services, Ltd., File No. 1019099 (App.
September 1995); McClellon v. Iowa Southern Utilities, File No. 894090 (App. January
1992). This inference also applies to the reasonableness of the fees actually charged
for that treatment.
The exact amount claimant is requesting is not easily ascertainable. The
claimant refers to Exhibits 27, 39 and 40 for the amounts. Claimant has requested the
following reimbursement for the following services/care:
1. Hot Tub.
2. Gym Membership.
3. Tens Unit.
4. Acupuncture.
5. Nutrition.
6. Vitamins.
7. Chiropractor.
8. Massage.
(Ex. 27, p. 19)
The record supports payment of claimant’s acupuncture expenses. Acupuncture
was recommended by Dr. Mendoza and a nurse practitioner. The TENS unit was also
recommended by her doctors and is approved.
Claimant’s request for reimbursement for the hot tub is denied. While there was
a recommendation for aqua-therapy, there is not sufficient evidence claimant was
engaged in an aqua-therapy program with the hot tub.
JOHANN V. UNIVERSITY OF IOWA HOSPITALS AND CLINICS
Page 14
There is not a sufficient showing that the nutrition and vitamins are related to
claimant’s work injury to be reimbursed. Nor is there sufficient evidence to show that
the massage was medically related to her work injury, and it is denied as well. Claimant
obtained chiropractic care after her surgery. I did not see a recommendation for
chiropractic care after her surgery. Claimant testified the chiropractic care post-surgery
was not helpful. The claimant has failed to prove the chiropractic care was reasonable
post-surgery, and it is denied.
Claimant received care at UIHC through the IowaCare program for her work
injury. (Ex. 39, p. 2) Those expenses are reimbursable by the defendant to the
IowaCare program.
Claimant has requested medical mileage. (Ex. 40) The claimant is awarded all
of the mileage listed on Exhibit 40, page 1. Claimant is awarded medical mileage for
her acupuncture treatment, IME and Community Mental Health appointments listed in
Exhibit 40, page 2. Claimant is not awarded mileage for the nutritional appointments,
vitamin purchase and massage.
Defendant has requested a credit pursuant to Iowa Code section 85.38 and Iowa
Code section 70A.20 for long term disability benefits. Claimant agrees defendant is
entitled to such a credit. Defendant is awarded a credit for such long term disability
benefits.
Claimant has requested costs of $4,420.10. The costs allowable are found at
876 IAC 4.33. Assessment of cost is discretionary within this agency. Claimant is
awarded filing fees and service costs of $111.50. Claimant is awarded $155.10 for
deposition costs.
Claimant has requested reimbursement of $2,925.00 for a vocational report and
$1,228.50 for a rebuttal report by Mr. Jayne. Rule 876 IAC 4.33(6) allows the recovery
of two practitioners’ reports. I do not find the cost of the rebuttal report to be
reasonable. Mr. Jayne’s fist report was extensive and at the upper end of reasonable
cost for a case like this. The rebuttal report was not necessary given the extensive first
report. No award is allowed for the rebuttal report. The claimant is awarded the cost of
the vocational report of $2.925.00. Total cost awarded is $3,191.60.
ORDER
THEREFORE IT IS ORDERED:
Defendant shall pay healing period benefits from November 6, 2011 through
March 13, 2013 at the rate of three-hundred eighty-two and 12/100 dollars ($382.12)
per week. Defendant shall have credit for wages paid during this time period pursuant
to Iowa Code section 85.33(3).
JOHANN V. UNIVERSITY OF IOWA HOSPITALS AND CLINICS
Page 15
Defendant shall pay three-hundred fifty (350) weeks of permanent partial benefits
commencing March 14, 2013 at the rate of three-hundred eighty–two and 12/100 dollars
($382.12) per week.
Defendant shall pay medical expenses and medical mileage as set forth in this
decision.
Defendant shall pay any past due amounts in a lump sum with interest as
provided by law.
Defendant shall pay the costs of this action of three-thousand one-hundred
ninety-one and 60/100 dollars ($3,191.60).
Defendant shall file subsequent reports of injury (SROI) as required by this
agency pursuant to rules 876 IAC 3.1(2) and 876 IAC 11.7.
Signed and filed this _____12th______ day of May, 2014.
__________________________
JAMES F. ELLIOTT
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
Copies to:
Paul J. McAndrew, Jr.
Attorney at Law
2771 Oakdale Blvd., Ste. 6
Coralville, IA 52241
[email protected]
Jonathan Bergman
Assistant Attorney General
Special Litigation
Hoover State Office Bldg.
Des Moines, IA 50319-0106
[email protected]
JFE/sam
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