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Whirlpool Corporation v. Danny Davis, Court of Appeals of Iowa, No. 3-582/12-1962


The Claimant alleged a work injury on April 29, 2008. He had been employed with the employer for 16 years and at the time was working in the paint department. As part of his job he had to maintain sufficient levels of chemicals in the barrels. On his date of injury, one of the barrels was empty. The barrel weighed several hundred pounds and when the Claimant went to replace it, the pallet it was placed on broke, causing the Claimant to hold onto it to keep it from falling. The barrel pulled the Claimant and his foot became stuff in the pallet. As the barrel continued to pull him, he heard a rip in his lower back.


The Claimant immediately reported his injury and was taken by ambulance to Mercy Medical Center. While at the hospital, the Claimant was diagnosed with a lumbar strain and was given pain medication. He was to refrain from lifting and prolonged sitting and to follow up in two days. Two days later, the Claimant say Dr. Momany who would ultimately treat the Claimant’s back until June of 2009. He was diagnosed with mechanical back pain, and three days later reported feeling 20% better. An MRI taken in June of 2008 was unremarkable.


The Claimant then took a leave of absence from the employer between July and August 2008 for problems associated with COPD. The Claimant then asked Dr. Momany to unrestrict him on September 11, 2008 as he had to be unrestricted to bid for a new position and his job was being eliminated. Dr. Momany placed the Claimant at MMI as he was having no significant pain and indicated he had no impairment.


The Claimant saw Dr. Momany again on September 30, 2008 due to feeling a pain in his back while climbing a ladder at work. The Claimant then began to treat with his personal doctor, Wendy Buresh. The Claimant told Dr. Buresh that his back pain had not felt better since the injury occurred and diagnosed the claimant with a low back strain.


The Claimant later followed up with Dr. Momany and was referred for an FCE in October 2008 as it was felt he was approaching MMI. The FCE determined that the Claimant fell into the medium work level and assigned certain restrictions but returned the Claimant to work. On December 22, 2008, the Claimant obtained a seven percent whole person impairment rating from Dr. Mark Taylor.


The Claimant continued to treat with Dr. Buresh for his chronic back pain and unrelated lung condition. He was seen Dr. Gene Gessner at a pain clinic in March and April of 2009 where he received injections and a TENS unit, but the Claimant indicated no improvement. The Claimant also continued to see Dr. Momany, and on June 9, 2009 had to take a leave of absence due to threats of self harm related to his chronic pain.


Dr. Buresh indicated that she believed the Claimant’s complaints were consistent with the type of injury sustained on his date of injury and that he was also experiencing situational depression as a result of the injury. The Claimant then saw Dr. Kuhnlein for an IME on September 4, 2009. Due to the confusion in the record between Claimant’s original date of injury and the potential reinjury in September, Dr. Kuhnlein could not state to a reasonable degree of certainty whether the current complaints were related to his original April injury or a new injury. He then assigned the Claimant 5% impairment and gave him some restrictions.


The Claimant’s last day of employment had been June 9, 2009 as he was kept on medical leave by Dr. Buresh since that time. It was indicated that the pain kept him from doing construction which he did prior to his shifts at Whirlpool. He also continud to hunt and mow his lawn regularly, though limited some by pain.


At hearing, the claimant acknowledged that he had treated with Dr. Meyer, a chiropractor prior to his alleged work injury. Though Dr. Meyer indicated that he was treating the Claimant primarily for cervical pain. The deputy awarded the Claimant permanent total disability benefits, medical expenses and costs. The deputy gave no weight to the opinions of Dr. Momany and indicating that the Claimant’s testimony was credible and corroborated by the record. The deputy indicated that while the Claimant had preexisting depression, it was lit up and aggravated by the work injury.


The decision was affirmed by the commissioner on appeal. The employer appealed to the district court and sought a stay of judgment pending the court’s decision. The district court found the expert opinions cited by the deputy provided substantial evidence and that the employer failed to show irreparable injury if the stay was not granted.


The employer appealed, contesting the findings that the Claimant’s physical and mental conditions were causally related to the April 29 2008 incident; the agency’s findings as to the extent of the Claimant’s disability; that Dr. Buresh was not an authorized treating physician and thus it should not be liable for charges related to the Claimant’s visits to her; and that the commissioner erred in awarding costs in the amount of $1,947. Finally, the employer argued the district court erred in denying its application for stay of judgment.


The Court first addressed the issue of causation and extent of disability and found that the agency’s findings and decisions were supported by substantial evidence, thus those issues were affirmed without significant discussion.


In regards to the medical expenses for Dr. Buresh, the Court noted that the employer had stipulated at hearing that the treatment was reasonable and necessary and that the fees were reasonable. The Court went on to indicate that once he was placed at MMI by Dr. Momany, it was reasonable for the Claimant to seek treatment elsewhere. The Court stated that Iowa law states that even when the employee obtains unauthorized care, upon proof by a preponderance of the evidence that such care was reasonable and beneficial, the employer is liable for the cost of the care. The Court found the visits to Dr. Buresh were related to the Claimant’s low back work injury and affirmed the award of medical expenses.


The Court of Appeals did find that it was error for the commissioner to tax costs of $330 to the employer for the cost of Dr. Momany’s deposition. The Court stated that the costs for deposing an expert witness cannot exceed $150 under Iowa law, thus this taxation of costs was in error.


Finally in regard to the motion for stay, the Court found no abuse of discretion in denying the stay as all the appropriate factors were considered.

If you have any questions on this, please feel free to call Mark Bosscher or Lee Hook at 515-243-2100. We'd be happy to help answer any questions you might have, big or small!