BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______________________________________________________________________
:
JANE AUSBORN,
:
:
Claimant,
:
:
vs.
:
:
File No. 5028555
CITY OF MOUNT PLEASANT,
:
:
APPEAL
Employer,
:
:
DECISION
and
:
:
IOWA MUNICIPALITIES WORKERS’
:
COMPENSATION ASSOCIATION,
:
:
Insurance Carrier,
:
Defendants.
:
Head Note No.: 1803
______________________________________________________________________
Defendants, City of Mount Pleasant and Iowa Municipalities Workers’
Compensation Association, appeal from an arbitration decision filed July 21, 2010 in
which the presiding deputy commissioner found that claimant’s September 1, 2005
injury extended into her whole body and resulted in a permanent and total disability.
The deputy ordered that claimant was entitled to permanent and total disability benefits
from September 1, 2005 except for those dates when claimant was working for
defendant-employer. Defendants assert on appeal that claimant has not proven an
injury to her body as a whole, that claimant is not permanently and totally disabled, and
that if claimant is not permanently and totally disabled that claimant is not entitled to
healing period benefits after her return to work for defendant-employer. Claimant
asserts that the findings of the presiding deputy should be affirmed on appeal. The
arguments of the parties are considered and the record of evidence has been reviewed
de novo.
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 July 21, 2010
filed in this matter that relate to issues properly raised on intra-agency appeal with the
following modification as to the extent of claimant’s permanent disability:
The presiding deputy found that the causation opinions presented in this case
demonstrated by a preponderance of the evidence that claimant suffers from chronic
regional pain syndrome (CRPS) in the right arm due to a sequelae from her carpal
tunnel syndrome and the surgery by Theron Jameson, M.D. This conclusion was
based on the views of the most recent treating physicians, Dana Simon, M.D. (See
AUSBORN V. CITY OF MOUNT PLEASANT
Page 2
Exhibit 12) and Judith Peterson, M.D. (See Ex. 7), and an evaluating physician, John
Kuhnlein, D.O. (Ex. 14) The evidence supports the deputy’s reliance on those opinions
as the contrary views of Dr. Jameson (See Ex. 3) and Leonel Herrera M.D. suffer from
the same flaw. Both Dr. Jameson and Dr. Herrera had not seen claimant recently and
both based their views on her condition when they last saw claimant. Therefore they
did not have the benefit of more recent clinical findings. Dr. Herrera even stated that he
assumed that claimant fully recovered because she did not return. Dr. Herrera did not
have the benefit of further evaluation, as did Drs. Simon and Peterson.
Defendants further assert that the views of claimant’s evaluating physician were
not clear as Dr. Kuhnlein stated that he had “no reason to disagree with the CRPS
diagnosis”. Defendants believe this is not a true diagnosis or that his views should be
interpreted to mean only that the CRPS was only possible, not probable. Upon review
of the physician’s entire report it is clear that he was simply explaining his causation
view that CRPS was a sequelae of the carpal tunnel conditions by referring to her
response to ganglion blocks that confirmed the CRPS. (Ex. 14, p. 178) Dr. Kuhnlein’s
view is found to support a diagnosis of CRPS. As will be noted later, Dr. Kuhnlein’s
opinions regarding the extent of claimant’s impairment and functional limitations is also
persuasive.
Defendants’ next assert on appeal that the doctors who diagnosed CRPS were
not following diagnostic guidelines for CRPS contained in the AMA Guides, fifth edition,
which have been adopted by this agency. While our administrative rule, 876 I.A.C. 2.4
recognizes that the AMA Guides, fifth edition is a useful tool in evaluating disability, it is
only a guide and its use is not binding on this agency, especially where the Guides
attempt to limit diagnoses of licensed physicians. These Guides were not adopted as a
diagnosis guide and they were not meant to replace Iowa law on causation. Medical
professionals are free to diagnose based on the condition and its physical impact, not a
non-legislatively adopted publication that is derived from a “consensus” of a few. This
agency is then free to adopt such a diagnosis and its physical impact of disability,
should the facts of a case so warrant. Atchison v. Platinum Hospitality, File No.
5016528 (Appeal Decision September 23, 2008)
Lastly, defendants complain that claimant has been doing activity with her right
arm that is inconsistent with CRPS. Claimant testified and asserts that this was only
done on one of her good days and such activity caused subsequent pain. The medical
evidence establishes that claimant informed Dr. Kuhnlein that her condition waxes and
wanes. This argument does not relate to the diagnosis of her CRPS as much as it
relates to the extent of claimant’s permanent disability.
It is therefore concluded that the presiding deputy commissioner did not err in
finding that claimant’s injury of September 1, 2005 resulted in CRPS and a body as a
whole injury. The findings of the presiding deputy are affirmed for the reasons set forth
above.
AUSBORN V. CITY OF MOUNT PLEASANT
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The next issue for consideration is the extent of claimant’s permanent disability.
The presiding deputy found that claimant has significant work restrictions and
substantial permanent impairment. Based upon claimant’s vocational testing evidence
the deputy found that claimant had sustained a permanent and total disability.
The parties do not quarrel with the legal standards at issue, but merely the
deputy’s finding of permanent and total disability. I cannot affirm the deputy’s finding as
I disagree that claimant’s work restrictions and permanent impairment are totally
disabling. Dr. Kuhnlein is the only physician to assign permanent impairment and his
rating was six percent to the whole person. The activity restrictions set forth by Dr.
Kuhnlein appear more convincing based upon claimant’s admitted activity level than
those restrictions set forth by Dr. Simon or Dr. Peterson. Dr. Kuhnlein restricted
claimant from repetitive pronation, supination, and resting her right forearm on a hardedged surface along with occasional gripping and grasping with the right upper
extremity. Dr. Kuhnlein also imposed restrictions of a 40 pound occasional lift from floor
to waist and waist to shoulder and a 30 pound lift over shoulder limitation but these
were not solely due to the work injury. Claimant had returned to work for defendantemployer for a period of approximately three months, until June 2006, before voluntarily
resigning her position due to a family move to South Dakota. Dr. Kuhnlein recognized
that claimant’s prognosis to return to unrestricted work is fair. I agree. After a
consideration of the factors of industrial disability set forth by the presiding deputy
commissioner it is concluded that claimant is not permanently and totally disabled and
that the extent of her disability is 40 percent. Such a finding entitles claimant to 200
weeks of permanent partial disability benefits as a matter of law under Iowa Code
section 85.34(2)(u), which is 40 percent of 500 weeks, the maximum allowable number
of weeks for an injury to the body as a whole in that subsection. The parties have
stipulated that claimant’s weekly compensation rate is $282.66 and that rate is
confirmed by the agency.
The next issue for consideration is claimant’s entitlement to 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 code
instructs that the healing period determination should be based upon whichever of the
above factors occurs first. However, 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, Iowa App., 312 N.W.2d 60
(1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394
N.W.2d 405 (Iowa 1986).
Defendants assert that claimant’s healing period should end on February 10,
2006 when she returned to full time work with defendant-employer. However, claimant
was not back to full duty work until the middle part of March 2006 and the authorized
AUSBORN V. CITY OF MOUNT PLEASANT
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physician, Dr. Jameson, did not place claimant at MMI until April 25, 2006. As
previously determined, claimant voluntarily left her employment position in June 2006.
Claimant asserts that her healing period extends as she was continuing to treat with
Drs. Simon and Peterson. The preponderance of the evidence supports a finding that
claimant returned to work on February 10, 2006 and that despite ongoing treatment she
did not obtain significant improvement from her disabling condition.
It is therefore concluded that claimant’s healing period benefits shall terminate
and permanent partial disability benefits shall commence on February 10, 2006.
IT IS THEREFORE ORDERED that the decision of the presiding deputy is
ARRIMED IN PART and MODIFIED IN PART and the following ordered:
Defendants shall pay unto claimant 200 weeks of permanent partial disability
benefits at the stipulated rate of two hundred eighty-two dollars and 66/100 ($282.66)
per week from February 6, 2006.
Defendants shall pay unto claimant healing period benefits from September 1,
2005 until February 5, 2006, except for dates when claimant was working, at the
stipulated rate of two hundred eighty-two dollars and 66/100 ($282.66) per week.
Defendants shall receive credit for three weeks of benefits paid at the rate of two
hundred eighty-two dollars and 66/100 ($282.66) per week.
Defendants shall pay accrued weekly benefits in a lump sum.
Defendants shall pay interest on unpaid weekly benefits awarded herein
pursuant to Iowa Code section 85.30.
Defendants shall pay the costs of the appeal, including the preparation of the
hearing transcript.
Defendants shall file reports with this agency on the payment of this award
pursuant to administrative rule 876 IAC 3.1.
Signed and filed this 20th day of July, 2011.
________________________
CHRISTOPHER J. GODFREY
WORKERS’ COMPENSATION
COMMISSIONER
AUSBORN V. CITY OF MOUNT PLEASANT
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Copies to:
Ryan M. Clark
Jason W. Miller
Attorneys at Law
505 5th Avenue, Suite 729
Des Moines, IA 50309-2390
rclark@pattersonfirm.com
jmiller@pattersonfirm.com
Pressley Henningsen
Attorney at Law
425 Second Street S.E., Suite 1140
Cedar Rapids, IA 52401
phenningsen@riccololaw.com
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