Alice Talton v. Fleur Delis Motor Inns, Inc. and Cambridge Integrated Services Group, Inc., Iowa Court of Appeals, No. 2-1095 / 12-0999

 

The Claimant suffered a work related injury on April 17, 2007, when a seven pound can of tomatoes feel from a height of six feet and landed on her left foot. Primary care for her foot was referred to Dr. Robert Eells. The Claimant was diagnosed with an injury to the first metatarsal head. After approximately three months of care, Dr. Eells referred the claimant to Dr. Eric Barp, a foot surgeon.

 

Dr. Barp diagnosed the claimant with a fractured fibular sesamoid on her left foot that he believed would heal with conservative treatment. He noted that the claimant’s back pain should subside once she was out of the CAM boot. Dr. Barp wrote to the nurse case manager on November 20th, indicating the Claimant should stop using her CAM boot that day. The letter also indicated the Claimant to be at maximum medical improvement and that her left big toe arthritis was unrelated to her work injury.

 

The Claimant then sought treatment on her own initiative from Dr. Vincent Mandracchia on January 11, 2008. Her condition was diagnosed as degenerative joint disease with hallux limitus first metatarsal phalangeal joint on the left. On January 31st, an exostectomy was performed by Dr. Denise Mandi. The Claimant then saw Dr. David Wadle and Dr. Dana Simon for her back pain. Dr. Simon indicated the Claimant’s back pain was probably secondary to the antalgic gait abnormality, maybe somewhat contributorily. Dr. Wadle indicated the Claimant’s altered weight bearing activities seem to have aggravated a pre-existing condition in her low back. The Claimant also saw Dr. Timothy Kenney for her knee pain. Dr. Kenney indicated the claimant’s altered weight bearing aggravated a pre-existing condition in her arthritic right knee but believed this to be a temporary condition caused by her altered gait while wearing the CAM boot.

 

On July 8, 2009, Dr. Mandracchia wrote a letter explaining her believed the joint disease and cartilage damage in the claimant’s left big toe directly resulted from her April 2007 work injury and that a joint replacement was a better option over conservative treatment.

 

The Claimant filed a workers’ compensation petition on January 16, 2009. It was stipulated that the Claimant sustained a left foot injury in the course of her employment; however the Claimant also alleged she experienced right knee and low back problems resulting from the injury. At hearing on August 19, 2010, the deputy ruled in the Claimant’s favor finding the left foot injury altered her gait and caused her right knee and low back problems. Temporary partial disability and alternate medical care were awarded, but as the deputy did not believe the Claimant to be at maximum medical improvement, no permanent benefits were awarded.

 

On appeal to the Commissioner, it was found that the Claimant’s left foot injury had healed and the ongoing problems she had with her left foot, right knee and low back were unrelated. Temporary disability benefits were awarded through November 20, 2007, the date Dr. Talton had found the Claimant reached maximum medical improvement. The Claimant’s requests for penalty and alternate medical care were denied. This decision was affirmed by the district court.

 

On appeal to the Court of Appeals, the Court first took up the issue as to whether the Claimant’s April 17, 2007 work injury caused the ongoing problems in her left foot, right knee and lower back. The Court first noted that medical causation is essentially within the domain of expert testimony and that the weight to be given those opinions is for the commissioner to determine.

 

The Court stated that the commissioner ultimately concluded Dr. Barp’s opinion deserved the greatest weight as it was consistent with the overall medical evidence. The Commissioner also determined that the opinions of Dr. Mandracchia and Mandi should be given little weight as “their own contemporaneous medical treatment notes and records are not consistent with their later causation opinions.” As the record presented a conflict of medical evidence, the commissioner was entitled to place greater weight on one opinion over the other.

 

The Court next took up the issue as to whether the Claimant’s ongoing left foot, right knee and lower back problems did not arise out of and in the course of her employment. The Court found that the Commissioner’s decision that the Claimant’s ongoing left toe, right knee and low back pain were unrelated to her alleged work injury was not illogical, irrational or wholly unjustifiable. The Court stated that the decision was within the domain of expert testimony and substantial evidence supported the Commissioner’s conclusion on causation.

 

As the Court found substantial evidence supported the Commissioner’s decision that the Claimant having reached maximum medical improvement on November 20, 2007, the Claimant was not entitled to alternate medical care or any additional temporary disability or healing period benefits.

 

Thus, the Court affirmed the decision of the commissioner.

 

Big Tomato Pizza v. Jonathan Cloud, Court of Appeals of Iowa, No. 2-1199 / 12-1291

 

The Claimant was employed as a delivery driver for the employer. On April 16, 2008, after returning from delivering a pizza when a man named Douglas Evans was being chased out the door of the employer. The Claimant stepped in front of him and was hit by Evans. A brief scuffle ensued between the Claimant and Evans. As a result of the incident, the Claimant was injured and had difficulty breathing. He was taken by ambulance to Iowa Methodist Hospital.

 

At the hospital, the Claimant was diagnosed with a small puncture wound to the left side of his chest and a collapsed lung. The Claimant remained in the hospital until April 26, 2008. Upon discharge, the Claimant did not have any subsequent medical treatment as he testified he could not afford it and did not have medical insurance. He returned to his job with the employer. He continued to complain of pain in the left chest region and sometimes experienced shortness of breath; particularly with cold, misty or dusty conditions. The Claimant also stated he experienced nightmares about the incident.

 

On May 30, 2009, the Claimant filed a workers’ compensation petition. He was seen by Dr. John Kuhnlein for an independent medical examination on February 4, 2010. Dr. Kunhlein found the claimant’s pain to have been caused by the April 16, 2008 injury and assigned the Claimant a one percent whole person impairment. It was recommended the Claimant could only lift pizzas above shoulder height on an occasional basis. It was further recommended that the Claimant be examined by a mental health professional for possible post-traumatic stress disorder.

 

At hearing, the deposition of a fellow employee was presented. This deposition testimony stated the Claimant was returning from delivering pizza when he was Evans being chased by the deponent and another employee. The deponent stated he was chasing Evans because he wanted to get in a fight. The Claimant made a U-turn to follow Evans, got out of his car and engaged in a fight with Evans in front of a restaurant down the block. A co-owner of the employer also testified that he had come into the business the night of the accident to get a pizza and was told that some employees were chasing a man down the street. He also testified that the Claimant came into the business and told the co-owner that he had hit Evans in the head.

 

The deputy did not find the testimony of the co-owner and co-employee to be as convincing as the Claimant’s. The deputy concluded that the Claimant was the victim of an assault that occurred because he was an employee and that this injury arose out of and in the course of his employment. The deputy determined that compensation was not barred by Section 85.16 and found the Claimant to have suffered a 15% industrial disability. It was also found that the Claimant should be evaluated for a mental health injury as a result of the assault.

 

On intra agency appeal, the Commissioner found that the ambulance record, police report and hospital medical records were objective evidence of what occurred the night of the incident and were more consistent with the Claimant’s testimony than other testimony presented. The Commissioner affirmed the decision of the deputy but modified the Claimant’s industrial disability rating to ten percent. The decision of the commissioner was affirmed by the district court on judicial review.

 

The Court first took up the issue as to whether the Claimant’s alleged injury arose out of an in the course of employment. The Court stated that an injury is considering to be arising out employment “if there is a causal connection between the employment and the injury.” The Court went on to state that the phrase “in the course of employment” refers to the time, place and circumstances of the injury.

 

The employer argued that substantial evidence did not support the finding that the Claimant’s injury did not arise out of an in the course of employment. The Court noted that on appeal it is not for the Court to determine if the evidence could support a different finding but whether the finding made was supported by substantial evidence. The Court found that the employer’s assertion relied on a factual scenario that was different than the factual findings made by the Commissioner. The Court went on to find that the factual findings made by the Commissioner were supported by substantial evidence.

 

The Court found the Claimant’s testimony to be supported by the ambulance report, police report and hospital reports from the evening of the altercation. The Court found substantial evidence supported the Commissioner’s finding that the Claimant was performing his work duties when he was assaulted. As the Claimant was performing work duty at the time of his injury, his injury was found to arise out of and in the course of his employment.

 

The Court next turned its attention the employer’s contention that the injury was barred by Section 85.16 which bars compensation for injuries which are caused by an employee’s willful intent to injure himself or another or by the willful act of a third part directed against the employee for reasons personal to such employee. The Commissioner had found that there was no credible evidence that the Claimant wanted to injury Evans or that Evans assaulted the Claimant for reasons personal to the Claimant. The Court ultimately found that substantial evidence supported the finding that the Claimant was hit because he happened to get in Evans’ way and that as such this injury was not barred under Section 85.16.

 

The next issue addressed by the Court was whether the Claimant was entitled to workers’ compensation benefits. The employer claimed that the Claimant had not shown any loss of earning capacity resulting from the injury. The employer pointed to the fact that the Claimant returned to his employment as a delivery driver for the employer. At most, the employer stated the Claimant was entitled to a disability rating of one percent to the body as a whole.

 

The Court first noted that in a determination of industrial disability, factors such as the Claimant’s age, education, restrictions and employment experience are considered. The Court ultimately found that substantial evidence supported the Commissioner’s finding that the Claimant had sustained a 10% permanent partial disability. The Court cited to the fact that the Claimant was 40 years old, had quit school in the 11th grade and obtained his GED. The Court also noted that most of his adult life was spent as a delivery driver and Dr. Kunhlein stated the Claimant could only lift pizzas above shoulder height occasionally and may have problems in dust, mist or cold environments. Based on this, the Court found substantial evidence to support the Commissioner’s decision.

 

The final issue taken up by the Court was whether substantial evidence supported the finding that the Claimant was entitled to be evaluated and treated for a mental health injury. The employer asserted that the Claimant had not presented any qualified expert opinion on this issue as Dr. Kuhnleing was not a mental health professional. The Court ultimately agreed with the reasoning of the district court which stated “[w]hile Dr. Kunhlein is not a mental health professional…he is certainly qualified to recognize symptoms needing further investigation.” The Court stated that the Commissioner did not find the Claimant had proven a mental health condition as a result of the work injury, but that there was sufficient evidence to warrant further investigation. The Court found substantial evidence supported this finding.

 

Thus, the decision of the Commissioner was affirmed.

 

Diane Cecilia Hansen vs. Snap-On Tools Manufacturing Company, Court of Appeals of Iowa, No. 3-031 / 12-1038

 

The Claimant was employed with the employer since 1971, almost the entirety of her entire working life. She worked in electrical, pack and the ball slide departments. Prior to her alleged work injury, the Claimant had health problems including carpal tunnel syndrome, right shoulder overuse problems, diabetes, high blood pressure, fibromyalgia and a hiatel hernia.

 

The Claimant filed a workers’ compensation petition on July 10, 2008. The parties agreed that the Claimant sustained two injuries. The first occurred on February 15, 2005 when the Claimant injured her left shoulder while working in the pack department. The second injury was alleged to have occurred on September 11, 2007, when she sustained an injury to her right hand/arm while working in the pack department. In regards to the February 15, 2005 injury, the Claimant alleged the injury manifested over a period of time by microtrauma. The Claimant had left shoulder arthroscopic surgery with Dr. Phillip Deffer. This surgery was performed on June 3, 2005, with the Claimant returning to work on June 10, 2005. Following the surgery, the Claimant continued to experience some shoulder pain and depression.

 

The Claimant was placed at maximum medical improvement by Dr. Deffer on February 10, 2006. On February 9, 2009, the Claimant underwent an independent medical examination with Dr. Kuhnlein, who opined that the Claimant had a material change in her left shoulder condition related to the February 15, 2005 injury which was an acute injury superimposed on a cumulative process.

 

On September 11, 2007, the Claimant suffered an injury while putting drawers in toolboxes in the pack department at the employer. After continuing problems, Dr. Deffer performed a right synovectomy in the right hand fourth dorsal compartment and side to side transfer of the extensor indicis proprius tendon on May 9, 2008. The Claimant was placed at maximum medical improvement on July 23, 2008.

 

After hearing, the deputy concluded the Claimant sustained a fifteen percent industrial loss related to her February 15, 2005 injury. The deputy also found that Dr. Kunhlein’s IME bill totaling $9,502.50 was unreasonable and the employer should only be responsible to reimburse the Claimant $2,890.00. The decision was affirmed by the commissioner with a slight modification to a mileage reimbursement calculation.

 

On judicial review, the district court remanded to the Commissioner to determine the correct amounts of healing period benefits, the due date of the benefits, the appropriateness of any penalty and whether interest should be assessed based upon the fact that the court found the deputy failed to analyze or provide rationale for the healing period benefits awarded. The issues of temporary partial disability benefits and the reasonableness of Dr. Kuhnlein’s fee were also remanded.

 

On judicial review, the Claimant argued extensively regarding the constitutionality of the successive disability statute, the applicability of the statute, and whether there was substantial evidence to support the deputy’s industrial disability award. The constitutional issue was reserved for the appellate court and found the deputy’s decision to be supported by substantial evidence.

 

The decision was appealed by the Claimant claiming the district court erred by failing to reverse the commissioner for failing to apply the successive-disability statute and all the industrial disability factors. It was also claimed that the court erred by taxing one half the costs on judicial review to the Claimant. The employer cross appealed arguing the commissioner was correct in regards to Dr. Kuhnlein’s fee and in the award to temporary benefits award.

 

The Court first addressed the issue of the successive-disability statute noting that the review of the issue was for errors at law and no deference would be given to the agency’s interpretation of the statute. The Court noted that the Claimant’s challenge to the deputy’s decision regarding permanent disability was based on the argument that all of Claimant’s previous injuries from her employment with the employer needed to be included in the permanent combined disability from which the permanent partial disability compensation award for the February 15, 2005 injury was made.

 

The Court examined Section 85.34(7), the successive-disability statute, which provides that if an employee has a preexisting disability that was caused by a prior injury arising out of and in the course of employment with the same employer, and the preexisting disability was compensable, the employer is liable for the combined disability caused by the injuries. The Claimant argued that the agency had erred by not explaining if and how it determined the fifteen percent industrial disability award represented a combined disability caused by the injuries measured in relation to the employee’s condition immediately prior to the first injury. In essence, the Claimant argued that if the agency properly considered her prior history, her rating should be higher.

 

The Court stated that in regards to the successive-disability statute, the Court must be able to identify from the record the pathway followed by the deputy when the determination was made. The Court noted that the record was not clear if or how the deputy applied the successive disability statute in making its determination regarding industrial disability. However, the Court went on to note that even if the agency had analyzed the facts under the successive-disability statute, the outcome would not change as the statute is not applicable to the Claimant’s February 15, 2005 injury.

 

The Court stated that in interpreting a statute, the stated legislative intent governed. In this case, the stated intent to the legislature was that the division did not alter the method of determining the degree of unscheduled permanent partial disability. As the Claimant’s injury was an industrial disability to the body as a whole, the degree of her unscheduled disability could not be determined under Section 85.34.

 

The Court next found that the agency determination as to the Claimant’s 15% industrial disability was supported by substantial evidence. In so finding, the Court noted that the law did not require the commissioner to specifically discuss each factor in arriving at the determination of industrial disability. Ultimately, the Court found substantial evidence supported the decision made by the Commissioner.

 

The Court then turned its attention to the issue of costs as to Dr. Kuhnlein’s IME and the costs of judicial review. The Court first looked at the issue of the costs of Dr. Kunhlein’s IME. The Court noted that the fee for an IME must be reasonable. While the agency determined the IME fee of Dr. Kunhlein was unreasonable, the district court remanded the issue as the pathway to determine the allowable fees was not clear. The court examined the deputy’s findings and found that the deputy has sufficiently reasoned as to why the fee was not reasonable and reversed the remand of the district court.

 

The Court spent no time discussing the issue of the costs of judicial review, merely affirming the finding of the court as “the taxation of costs of judicial review shall be in the discretion of the court.”

 

The final issue taken up by the Court was the determination that all temporary benefits that the Claimant was entitled to had been paid. The Court noted that in regards to benefits, the agency’s decision must be sufficiently detailed to show the path it had taken through conflicting evidence to arrive at its decision. The Court found that the agency only recited what benefits had been paid and never made any determination as to their accuracy or timeliness. As such, the decision was not sufficiently detailed and the district court’s remand was appropriate.


Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!