BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
___________________________________________________________________
:
GRACE COZAD,
:
:
Claimant,
:
:
vs.
:
:
File No. 5015753
RUSSELL CORPORATION,
:
:
REMAND
Employer,
:
:
DECISION
and
:
:
AMERICAN HOME ASSURANCE,
:
:
Head Note Nos.: 1402.40; 1804;
Insurance Carrier,
:
2501; 4000.2
Defendants.
:
___________________________________________________________________
This case is before the Iowa Division of Workers’ Compensation on remand from
the Iowa Court of Appeals following a ruling on judicial review filed January 19, 2012.
This matter has a protracted procedural history. This matter was first heard by a deputy
workers’ compensation commissioner on May 16, 2006. In an arbitration decision filed
on October 30, 2006, the presiding deputy determined that claimant had failed to prove
by a preponderance of the evidence that her November 10, 2004 work injury resulted in
permanent disability or the need for ongoing medical treatment as the injury was a
“temporary aggravation of a preexisting progressive degenerative condition.” In an
appeal decision filed on February 27, 2008, the undersigned affirmed the findings of the
presiding deputy commissioner based upon an expanded analysis of the medical
evidence. Claimant sought judicial review following the appeal decision. In a judicial
review decision filed January 30, 2009, the district court remanded the case for further
explanation. On June 15, 2010, in an expanded remand decision, the undersigned
affirmed the prior appeal decision with further analysis as to the reasons for refusing to
provide weight to the medical opinions of Dr. Palit. Claimant again sought judicial
review with the district court having been aggrieved by the division’s findings. In a ruling
on judicial review filed on February 22, 2011, the district court found that the remand
decision was not supported by substantial evidence and was illogical based on the
record as a whole. The district court remanded this matter to the division for an award
of disability benefits – having specifically found that claimant “has proven by a
preponderance of the evidence that she has sustained a permanent disability resulting
from her work related injury of November 10, 2004.” The matter was specifically
COZAD v. RUSSELL CORPORATION
Page 2
remanded to grant workers’ compensation benefits consistent with the ruling on judicial
review. As noted, the Iowa Court of Appeals has affirmed the district court’s ruling on
judicial review.
Following a review of the file and after review of the judicial review rulings it is
concluded that claimant shall be awarded permanent disability benefits and that the
undersigned shall consider claimant’s petition for medical care cost reimbursement and
penalty benefits.
FACTUAL FINDINGS
The record of evidence establishes that claimant was 41 years of age at the time
of the arbitration hearing in this matter. She is a high school graduate and attended
some community college classes. At the time of hearing claimant was attending William
Penn University. It is unknown whether claimant was successful in her classes.
It has also been noted that claimant’s work history is varied. Her work history
includes employment as a waitress, construction company flagger, press operator,
clerical worker, dishwasher, cook, telemarketer, and factory worker. She went to work
for American Athletics, Inc. n/k/a as Russell Corporation in June 1998. At Russell her
duties included being a heavy mat sewer, making fiberglass poles, and unloading
unfinished products for the finishing process.
Claimant’s past medical history is replete with references to back pain.
According to her deposition testimony, she had back pain prior to 1998 but has
consistently had low back pain since 1998. On November 10, 2004, while working at
Russell, claimant alleges that she knelt down and felt her back pop or that it had
“cracked.” (Exhibit O, page 41) Claimant was then transported to Greene County
Medical Center, where she reported back pain and discomfort radiating into her legs,
specifically her right leg. She denied any numbness, tingling, or weakness but for some
numbness in her buttocks. (Ex. 5, pp. 16-18)
After returning to unrestricted work on November 29, 2004, claimant volunteered
for a layoff beginning in December 2004. Claimant testified that she took the layoff
because of back discomfort. Her production supervisor testified that claimant had been
performing her duties without problems until the layoff and that he was unaware that
back problems played a role in her decision to take the layoff. Claimant's spouse also
worked for the employer and also volunteered for the December 2004 layoff.
On January 4, 2005, claimant presented to orthopedic physician, Mark Palit,
M.D., with the chief complaint of low back pain with radiation into the left lower
extremity. She then reported sharp shooting pain with increased activity. Dr. Palit
characterized claimant as having had “a long history of low back pain for the past six
years or so” and recorded a medical history, which stated that claimant had felt “the
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immediate onset of pain in the low back with radiation to left lower extremity” at the time
of her November 10, 2004 injury. Dr. Palit ordered another lumbar MRI, which showed
disc degeneration at L4-5 and L5-S1. On January 11, 2005, Dr. Palit discussed “the
possibility of discograms” with claimant as well as the options of weight loss, continued
physical therapy, and strengthening. (Ex. 8, pp. 32-33)
On April 14, 2005, claimant had an independent medical examination (IME) with
William Boulden, M.D. (Ex. 7) Claimant's then chief complaint was of low back pain
with some numbness in the left leg and buttock occasionally. Claimant reported that
lifting, standing, sitting, and bending all increased her low back pain and that walking
increased both her back pain and her leg symptoms. (Ex. 7, p. 23) On examination,
claimant was tender at the lumbosacral junction and had left side tenderness more so
than right side. Dr. Boulden agreed with Dr. Palit's diagnosis of lumbar degenerative
disc disease with spondylolysis at L5 and spondylolysis at L5-S1, but felt the
discography would be a “last resort.” Dr. Boulden opined that she “is incapable, and
probably was incapable when she began doing the kind of work that was asked of her.
She had a preexisting weak segment in her spine that work definitely, in my opinion,
would have aggravated.” (Ex. 7, p. 26) He further opined that “each flare-up has
probably lead [sic] to some increasing weakness . . . to the point where this unstable
segment can develop the need for surgical treatment modality.” (Ex. 7, p. 25)
During her period of unemployment from December of 2004 until July 11, 2005,
claimant performed various duties at various family companies and businesses
including a towing company and can/bottle redemption business.
Defendant-employer requested claimant to return to work in July of 2005 from the
layoff. Claimant refused at first, stating she was under the care of a doctor. She then
returned on July 11, 2005 and quit approximately two days later.
Following Dr. Palit’s departure from Iowa, on January 3, 2006, claimant
presented to Lynn M. Nelson, M.D., reporting mid-back burning with numbness and
tingling, pain to the bilateral buttocks, anterior/posterior thighs, left anterior/posterior leg
and right posterior leg with cramping. She stated that her left leg pain was greater than
her right leg pain and gave a history of having had low back pain for nearly six years
and lower extremity symptoms for the past three years. On examination, claimant had
no localized back tenderness and no evidence of paraspinal spasm. (Ex. 9, pp. 40-41)
Dr. Nelson offered claimant surgical treatment while advising her that he did not believe
she was causing herself injury or damage “by living with” her back condition.
On February 13, 2006, claimant underwent a L5-S1 decompression, posterior
fusion, and posterior lumbar interbody fusion, and posterior iliac crest bone grafting. Dr.
Nelson saw claimant for a single postoperative visit on March 2, 2006. Claimant then
reported continuing right buttock and posterior thigh pain and numbness and improved
left lower extremity pain. (Ex. 9, p. 43) Dr. Nelson opined on April 13, 2006 that while
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claimant’s spondylolisthesis well pre-dated her work-injury of November 10, 2004, that
the “work injury, however, may have ‘lighted up’ this pre-existing back condition.” (Ex.
9, p. 39) Dr. Nelson opined that claimant had not been capable of any more than
sedentary employment from January 3, 2006 on.
On April 28, 2006, Dr. Palit opined that claimant’s November 10, 2004 work injury
aggravated her preexisting back condition, and that claimant had been medically unable
to perform full work activities for the employer since that day.
CONCLUSIONS OF LAW
The first issue for consideration as ordered on remand is the extent of claimant’s
permanent disability. The record more fully supports a running award of temporary
disability benefits, but the order demands consideration of claimant’s permanent
disability.
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 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).
Since claimant has 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.2d 899 (1935) as follows: "It is therefore plain that the legislature
COZAD v. RUSSELL CORPORATION
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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
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. Iowa Code section 85.34.
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).
Total disability does not mean a state of absolute helplessness. Permanent total
disability occurs where the injury wholly disables the employee from performing work
that the employee's experience, training, education, intelligence, and physical capacities
would otherwise permit the employee to perform. See McSpadden v. Big Ben Coal Co.,
288 N.W.2d 181 (Iowa 1980); Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899
(1935). A finding that claimant could perform some work despite claimant's physical
and educational limitations does not foreclose a finding of permanent total disability,
however. See Chamberlin v. Ralston Purina, File No. 661698 (App. October 1987);
Eastman v. Westway Trading Corp., II Iowa Industrial Commissioner Report 134 (App.
May 1982).
At the time of the arbitration hearing claimant was incapable of returning to her
employment position with defendant-employer or any of her prior employment positions.
She was expressly limited, at most, to sedentary work. Claimant is a motivated
individual. She had attempted to perform some other alternate employment and had
sought to retrain by taking classes at William Penn. Her age does not preclude her
retraining. Claimant has had a fusion surgery performed by Dr. Nelson, but has clearly
not had a resolution of her symptoms to her back. Such a surgery is known to result in
significant permanent functional impairment and instability of the spine. While claimant
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is not completely immobile, she is considerably impaired and fully disabled. It is the
conclusion of the undersigned that claimant has sustained an injury which permanently
disables her from performing work within her experience, training, education and
physical capacities. Therefore, claimant is entitled to an award of permanent total
disability benefits. Based upon the opinion of Dr. Palit, claimant has been permanently
and totally disabled from November 10, 2004. Claimant is therefore entitled to such
benefits at the stipulated weekly compensation rate of $353.77 as set forth in the
hearing order.
The next issue for consideration is whether defendants are liable for claimant’s
medical care expenses.
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. Iowa Code section 85.27. Holbert
v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial
Commissioner 78 (Review-Reopening October 1975).
Claimant has itemized the medical expenses for which she seeks reimbursement
or an order of liability against defendants. It is concluded that the itemized medical
expenses are the liability of defendants.
The final issue for consideration on remand is whether a penalty should be
assessed against defendants for an unreasonable denial of the claim or delay in
commencing disability benefits. As is clear from the procedural history of this matter,
defendants had a reasonable factual basis for a denial of the claim. The ultimate
determination that claimant is entitled to permanent total disability benefits does not
make the prior denial of the claim unreasonable. It is concluded that no penalty shall be
assessed against defendants.
ORDER
IT IS THEREFORE ORDERED on remand that:
Defendants shall pay permanent total disability benefits at the weekly rate of
three hundred fifty-three and 77/100 dollars ($353.77) for the period of claimant’s
disability commencing on November 10, 2004.
Defendants shall pay accrued weekly benefits in a lump sum.
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Defendants shall pay interest on unpaid weekly benefits awarded herein
pursuant to Iowa Code section 85.30.
Defendants shall make payment for claimant’s medical expenses as set forth
herein, pursuant to Iowa Code section 85.27.
Defendants shall pay the costs of this matter, including preparation of the
arbitration hearing transcript.
Defendants shall file reports with this agency on the payment of this award
pursuant to rule 876 IAC 3.1.
Signed and filed this ___26th ________ day of July, 2012.
CHRISTOPHER J. GODFREY
WORKERS’ COMPENSATION
COMMISSIONER
Copies To:
Mr. Neven Mulholland
Attorney at Law
809 Central Ave., Ste 600
Fort Dodge, IA 50501
neven.mulholland@johnsonlawia.com
Mr. Aaron T. Oliver
Attorney at Law
5th Floor, US Bank Bldg
520 Walnut St
Des Moines, IA 50309-4119
aoliver@hmrlawfirm.com