Before The Iowa Workers’ Compensation Commissioner

ZICKEL V. LOWE’S HOME CENTERS, INC.

Page 12

BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER

______

:

VICKY ZICKEL, :

: File Nos. 5019870, 5021406

Claimant, :

: A R B I T R A T I O N

vs. :

: D E C I S I O N

LOWE’S HOME CENTERS, INC., :

:

Employer, : Head Note Nos.: 1402.40; 1803; 2501;

SelfInsured, : 2502; 3002

Defendant. :

______

STATEMENT OF THE CASE

Claimant, Vicky Zickel, filed petitions in arbitration seeking workers’ compensation benefits from selfinsured defendant Lowe’s Home Centers, Inc. (Lowe’s). This case was heard in Des Moines, Iowa, on August14, 2007.

At hearing, claimant dismissed File No. 5020381, date of injury December15, 2004.

The record in this case consists of joint exhibits A through Y, and the testimony of claimant and Allison Lambert.

ISSUES

In File No. 5021406 (Date of injury January28, 2005):

1. Whether the alleged injury is the cause of permanent disability; and if so,
2. The extent of claimant’s entitlement to permanent partial disability benefits.
3. Rate.
4. Whether there is a causal connection between claimant’s injury and the medical expenses claimed by claimant.
5. Whether claimant is due reimbursement for an independent medical evaluation (IME) pursuant to Iowa Code section 85.39.

In File No. 5019870 (Date of Injury October13, 2005):

1. The extent of claimant’s entitlement to permanent partial disability benefits.
2. Rate.
3. Whether there is a causal connection between claimant’s injury and the medical expenses claimed by claimant.
4. Whether claimant is due reimbursement for an IME pursuant to Iowa Code section 85.39.

At hearing, defendant contended it was entitled to a credit, under Iowa Code section 85.32(2), for long term disability paid to claimant. Defendant withdrew that issue in the post hearing brief.

FINDINGS OF FACT

The deputy workers’ compensation commissioner, having heard the testimony and considered the evidence in the record, finds that:

Claimant was 57 years old at the time of hearing. Claimant has an 8th grade education. Claimant does not have a GED.

Claimant has worked as a machine operator in a window factory and performed cleaning and inventory work in a lumbar yard. She also ran a childcare center in her home and did cleaning at a country club. Claimant began with Lowe’s in 2004.

Claimant’s prior medical history is relevant. In 1984 through 1986, claimant treated with various doctors for neck pain. (Exhibit A, pages 5 through 10) In 1989, claimant received treatment for right shoulder and arm pain. (Ex.A, p.13) Records indicate that in 1990 claimant took off work for six weeks due to pain and tingling in her right upper extremity. (Ex.A, p.14) EMG’s in 1996 confirmed claimant had bilateral carpal tunnel syndrome. (Ex.A, p.22)

In 1998, claimant’s physicians opined she had symptoms consistent with chronic pain syndrome. (Ex.A, p.26) Claimant’s physicians have also opined claimant had fibromyalgia. In a 1998 exam for social security disability benefits, Tony Kunz,M.D., found claimant had fibromyalgia and chronic anxiety. Dr.Kunz opined that without further training, claimant would be considered disabled. (Ex.B, pp.32-33) In 1999, claimant indicated she could not lift more than five pounds, that she was only able to stand and walk for two hours a day, that cramping and hand weakness limited her to writing five minutes at a time, and that she could only sit 15-20 minutes at a time. Claimant indicated she spent most of her time lying down during the day, and anxiety interfered with her ability to concentrate. (Ex.A, p.27, 36) Claimant testified, at hearing, she had chronic pain due to fibromyalgia for a number of years.

In 2003, claimant applied for social security disability benefits. She was found to have an impingement syndrome in the right shoulder and carpal tunnel syndrome in her right hand. (Ex.A, p.30) Claimant testified she was found not qualified to receive social security disability benefits at that time.

Claimant worked at Lowe’s as a stocker and receiver. Her job duties included, but were not limited to, stocking shelves, cleaning, climbing ladders, and moving inventory. The job also required claimant to lift up to 50 pounds unassisted, and 200 pounds with assistance. A more detailed job description of claimant’s position with Lowe’s is found at Exhibit T.

On January10, 2005, claimant was examined by Debra Sixta,M.D., with right arm pain. Claimant was recommended to wear a wrist splint. (Ex.D, p. 55) On January28, 2005, claimant reported to Lowe’s she had pain in her shoulders possibly due to work. (Ex.T, p.220)

On January28, 2005, claimant was seen by Ann Roberson,M.D., with complaints of pain in the right shoulder and arm. Claimant was diagnosed with having a strain to the right shoulder, elbow and arm. She was given a splint and lifting restrictions. (Ex.E, p.67)

On February18, 2005, claimant returned to Dr.Roberson with complaints of right shoulder and arm pain. An EMG was recommended. (Ex.E, p.68) An EMG, taken on March3, 2005, was positive for right carpal tunnel syndrome. (Ex.G, pp. 96-98) Dr.Roberson referred claimant to an orthopedist. (Ex.E, p.70)

On March16, 2005, claimant was evaluated by Jeffrey Rodgers,M.D. Claimant indicated she had difficulty working above shoulder level while stocking shelves. She was assessed as having right shoulder pain, impingement, and a mild right carpal tunnel syndrome. Dr.Rodgers recommended continued physical therapy. He also recommended claimant be evaluated by a shoulder specialist. (Ex.H, pp.103-104)

Claimant was evaluated by Jeffrey Davick,M.D., on April20, 2005. Claimant complained of pain in her shoulders and arms with overhead activities. Claimant was assessed as having right shoulder impingement. She was offered a Cortisone injection and refused. Claimant was returned to work at regular duty. (Ex.H, pp.104-105) Claimant returned to Dr.Davick on June1, 2005 indicating improvement in her right shoulder. Claimant complained of numbness and tingling in both hands. She was assessed as having a right shoulder impingement, essentially resolved. She was referred back to Dr.Rodgers for her hand. (Ex.H, pp.105-106)

Claimant testified she returned to work at Lowe’s but still had problems with her upper extremities.

On October13, 2005, claimant hurt her back while emptying a mop bucket. On the same day, claimant was evaluated by Jerry McCauley,M.D., with Concentra, with complaints of back pain. She was assessed as having a sacrum strain. Claimant was sent to physical therapy and limited to lifting up to five pounds. (Ex.E, p.71)

Claimant returned to Dr. McCauley on November8, 2005 with continued lower back pain. Claimant was continued on restrictions and referred to a physiatrist. (Ex.E, p.73) On December2, 2005, claimant returned in follow up at Concentra. She was using a TENS unit and had improved her symptoms. Claimant was assessed as having persistent but improving lower back pain. (Ex.E, p.74)

Claimant returned to follow up with Concentra on December14, 2005. Claimant’s symptoms were slowly improving. Claimant was offered trigger point injections which she refused. Claimant was returned to work with restrictions. (Ex.E, p.74) On December21, 2005, claimant was given a trigger point injection and returned to work with restrictions. (Ex.E, p.76)

On January4, 2006, claimant returned to Concentra. Trigger point injections had limited effect on claimant’s symptoms. An MRI was ordered. (Ex.E, p.77) Claimant’s MRI revealed no disc herniation or critical stenosis. The MRI did show early degenerative osteoarthritic changes. Claimant was assessed as having lower back pain from a sacroiliac joint dysfunction. Claimant was referred to a pain management specialist. (Ex.E, p.79)

On January17, 2006, claimant was evaluated by anesthesiologist, Kenneth Pollack,M.D. She was assessed as having right sacroiliac strain with persistent sacroiliitis. Dr.Pollack referred claimant to physical therapy. (Ex.H, pp.109-110)

Between March21, 2006 and April3, 2006 claimant was on leave of absence from Lowe’s. (Ex.T, p.228)

On April12, 2006, claimant was evaluated by Daniel McGuire,M.D. He assessed claimant as having an aggravation of a lumbar spondylosis. (Ex.L, pp.123-124) Dr. McGuire evaluated claimant again on May1, 2006, with complaints of neck, shoulder and right arm pain. Given claimant’s myriad of complaints, Dr.McGuire was not optimistic that claimant would return to work. He recommended claimant use a headset to be able to work as a telephone operator. He also recommended claimant be restricted to working a few hours per day. (Ex.L, p.126)

Based on Dr.McGuire’s restrictions, claimant was transitioned to a Lowe’s store in Altoona, Iowa. She was transitioned to work as a phone operator or cashier. Claimant was also limited to working two hours per day. Claimant accepted her transitional position. (Ex.T, pp.229)

Claimant testified she worked as a phone operator for two days at Lowe’s and then left the position because her hands fell asleep and she did not feel she could do the job. She testified she did not want to work as a cashier as the job made her feel too nervous. Claimant testified the job description for an operator also required her to drive a fork lift and move products, which claimant did not believe she could do. There is no evidence that during the days claimant worked as an operator, she actually drove a fork lift or moved products. Claimant testified she has not contacted Lowe’s to return to work.

A note from claimant’s employment file, dated May2, 2006, indicates claimant refused to work as an operator or cashier. (Ex.T, pp.230)

Claimant returned to Dr.McGuire on May26, 2006 with complaints of pain in her neck and right arm. Dr.McGuire recommended an MRI of the right shoulder. He was not optimistic regarding claimant’s return to work. (Ex.L, pp.133-134) On June12, 2006, claimant returned to Dr.McGuire with continued complaints of right arm and neck pain. Dr.McGuire recommended EMG’s and an MRI of the neck. Claimant was taken off work. (Ex.L, p.137)

Claimant returned to Dr.McGuire on July3, 2006. Dr.McGuire was not authorized to treat claimant’s shoulders or arms. Claimant was assessed as having persistent back and leg problems and multi-factorial upper extremity problems. (Ex.L, pp.138-139)

Claimant was evaluated by Dr.McCauley with Concentra, on July13, 2006 for right arm, hand and shoulder pain. Dr.McCauley found claimant’s present symptoms were not work related and released claimant to return to regular duty as of July13, 2006. (Ex.E, p. 86)

On August8, 2006, claimant was evaluated at Broadlawn’s Hospital in DesMoines for chest pain, right shoulder and arm pain, and lower back pain. She was assessed as having, along with a number of other diagnosis, probable bilateral carpal tunnel syndrome and osteoarthritis. (Ex.N, pp.149-152)

Claimant returned to Dr.Sixta on August15, 2006 with continued complaints of right arm pain. Claimant was assessed as having probable right carpal tunnel syndrome. EMG’s were recommended. (Ex.D, p.65) EMG’s, done on August16, 2005, were abnormal. The exam was thought to show cervical radiculopathy at the C5-C7 region. (Ex.O, p.154) A cervical MRI, performed on August21, 2006, revealed spondylosis at the C6-7 level. (Ex.P, p. 155)

On September1, 2006, claimant was evaluated by Dennis Rolek,D.O., with Concentra, for follow up of his shoulder, back pain, and restless leg syndrome. Claimant was assessed as having shoulder and back pain of unknown etiology. Care was transferred to a neurologist. (Ex.E, p.87)

In a September12, 2006 letter to claimant’s counsel, Dr.McGuire opined claimant’s symptoms in her neck and right shoulder were aggravated by her work activity at Lowe’s. Dr.McGuire suggested claimant be limited to lifting 10-15 pounds, and that she avoid repetitive activities with her right upper extremity. He also recommended she avoid repetitive overhead work. (Ex.L, pp.140-141)

On November29, 2006, claimant was evaluated by John Prevo,M.D., for lower back and hip pain. Claimant was assessed as having lower back pain. Dr.Prevo could not causally link claimant’s upper extremity problems to her work at Lowe’s. He also found claimant’s carpal tunnel problems unrelated to her work at Lowe’s. Dr.Prevo did not give claimant any work restrictions. (Ex.Q, pp.159-169) Dr.Prevo saw claimant in follow up on December19, 2006 and January9, 2007. He found claimant’s symptoms unrelated to her work incident. He found claimant reached maximum medical improvement (MMI) on January18, 2007. (Ex.Q, pp.162-164)

On May8, 2007, claimant was evaluated by John Kuhnlein for an independent medical examination (IME). Dr.Kuhnlein diagnosed claimant as having aggravation of a degenerative disc disease, sacroiliitis, and trochanteric bursitis. He found her preexisting degenerative disc disease was aggravated by her October13, 2005 work injury. Because claimant’s lower back symptoms did not decrease with treatment, Dr.Kuhnlein suggested that there were psychosocial aspects to her symptoms. Dr.Kuhlein believed claimant would benefit from a functional capacity evaluation (FCE). He opined claimant had an eight percent permanent impairment due to her chronic lower back pain. He restricted claimant to lifting ten pounds occasionally. He also limited claimant to stooping, crawling and kneeling rarely, and climbing ladders occasionally. He opined claimant was not capable of gainful employment given her back problems. (Ex.S, pp.172-181)

In an August2, 2007 report Dr.Kuhnlein gave his opinions regarding claimant’s right shoulder and right upper extremity problems. Claimant complained of both hands going numb, and pain in the right side of her neck and trapezius area. Claimant also complained of pain in her right elbow radiating into her hand. Claimant complained of difficulty with overhead work. Dr.Kuhnlein assessed claimant as having chronic cervical spine pain from degenerative disc disease, myofascial pain in her right upper extremity and right medial and lateral epicondylitis, with underlying fibromyalgia. (Ex.S, pp.183-186)

Dr.Kuhnlein was unable to opine, within a reasonable degree of medical certainty, that claimant’s carpal tunnel syndrome sustained longterm aggravation from her work duties at Lowe’s. He was also unable to opine if claimant's cervical problems were caused or made worse by her work at Lowe’s. Dr.Kuhnlein did opine that claimant’s employment at Lowe’s lit up her pre-existing right shoulder problems. He did not assign any impairment regarding claimant’s right shoulder and cervical problems. He did give claimant a three percent permanent partial impairment for her right carpal tunnel syndrome. He also opined he did not believe claimant was capable of gainful employment. He suggested claimant undergo an FCE and find work within her abilities. (Ex.S, pp.196-200)

In a July20, 2007 letter to defendant’s counsel, Steve Mootz,M.A., CRC, gave his opinions regarding claimant’s employability. Mr.Mootz opined that based on claimant’s restrictions to her low back, claimant would be compromised in her ability to return to work stocking and doing clean up. He did believe claimant could return to work as a cashier or in customer service. (Ex.R, pp.165-167) Mr.Mootz also noted that before she began with Lowe’s, claimant had restrictions of not lifting over ten pounds, no prolonged standing, sitting, or repetitive work. He compared these restrictions with claimant’s restrictions after her 2005 injury. Because claimant’s pre and post 2005 injury restrictions were similar, Dr.Mootz opined claimant’s 2005 restrictions did not significantly impact claimant’s employability. (Ex.R, pp.168)