LOPEZ V. IBP, INC.
Page 1
before the iowa workers' compensation commissioner
______
:
MARIA LOPEZ, :
:
Claimant, :
:
vs. :
: File No. 1138413
IPB, INC., :
: REVIEW-REOPENING DECISION
Employer, :
Self-Insured, :
Defendant. :
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STATEMENT OF THE CASE
This decision concerns a proceeding in review-reopening brought by Maria Lopez, claimant, against IBP, Inc., self-insured defendant employer, from an arbitration decision filed on February 5, 1998, which found claimant to be entitled to a 40 percent industrial disability as a result of her work injury sustained on July 17, 1995. Claimant filed her review-reopening petition on December 29, 1999.
The case was heard and fully submitted in Council Bluffs, Iowa on July 10, 2001. The evidence in the case consists of the testimony of claimant, Celia Blizzard, Philip Davis, and Carolyn Arn-Priester. The evidence also consists of claimant's exhibits 1-4 and defendant’s exhibits 1-5.
ISSUES
The parties presented the following issues for determination in the case:
- Whether there has been a substantial change in circumstances or condition that was not anticipated at the time of the arbitration decision for a reassessment of the extent of claimant's permanent partial disability; and
- Whether defendant will be responsible for the payment of a medical expense attached to the hearing report and whether that was for treatment that was reasonable and necessary, causally connected to the work injury, and authorized by defendant.
It was stipulated prior to hearing claimant was paid 200 weeks of permanent partial disability benefits at the weekly rate of $213.68.
FINDINGS OF FACT
The deputy workers' compensation commissioner, having heard the testimony of the witnesses and considered the evidence in the record finds that:
Maria Lopez, is 41 years old at the time of the review-reopening decision. The arbitration decision filed on February 5, 1998, sets forth the relevant facts pertaining to the work injury claimant sustained on July 17, 1995, while in the employ of IBP, Inc., as well as the medical treatment she received thereafter. Therefore, those findings of fact are hereby incorporated by reference in this decision.
After being terminated from her employment by IBP on April 28, 1997, claimant worked for a business known as Vocational Development Center in 1998, helping to care for retarded and mentally handicapped people. Claimant left her job with this employer after approximately one and one-half years because her depression worsened, with claimant stating that this occurred because she felt the mentally retarded individuals she dealt with were affecting her mental state. (Defendant Exhibit 5C, Page 29)
Claimant then began working for Iowa Western Racing Association at the Bluffs Run Casino as a waitress. At hearing claimant testified she left because her lower back began to hurt based on having to work outside of her physical restrictions. However, in her deposition that was taken of claimant on April 13, 2000, she indicated she left this job because she was not given breaks that were promised to her and that her supervisor gave more preference to other employees over claimant. This preference of other employees did not cause claimant stress. (Def. Ex. 5C, pp. 33-34)
Claimant testified that after leaving these two employers she has looked for other jobs and claimant's exhibit 2 is a summary of the positions that she has sought work from up to January 2001. She testified that she has looked for work at other places after January 2001, but has not been hired.
Claimant testified there have been no additional work restrictions imposed upon her since the last arbitration hearing and that her physical and mental state has remained the same for approximately the last year.
At the prior hearing it was found that claimant read and understood English at approximately a 50 percent level. Since that time claimant has been taking English as a second language course at Iowa Western Community College and is now fluent in English. In fact at the hearing conducted on July 10, 2001, claimant was able to testify without the need of an interpreter, only occasionally having some difficulty with certain words that were put to her in questions, which she was able to understand after further explanation was given.
Carolyn Arn-Priester is claimant's instructor at Iowa Western Community College and she testified that when claimant began Ms. Arn-Priester found claimant to be at the beginning low level of speaking and understanding English and that at this time she is advanced to the high end of the intermediate level. Ms. Arn-Priester further testified that she finds claimant to be bilingual and that she understands claimant has offered her services as a translator to help out families but does not know if she has been paid for this work. Ms. Arn-Priester has also worked with claimant on her math and keyboarding skills and believes at this point claimant has basic math skills. Ms. Arn-Priester further testified that she has not seen claimant having emotional problems while in class, however, she did acknowledge that she and claimant have talked privately about claimant seeking additional care for her emotional problems.
Celia Blizzard is claimant's daughter and testified that claimant is now less happy and outgoing than she was before the injury and that in the past year claimant is sad most of the time and has sudden crying spells. She and her sister have been taking turns being with claimant because they fear claimant may commit suicide. On cross-examination Ms. Blizzard acknowledged that claimant's psychiatrist, Michael L. Egger, M.D., indicated that this was the same type of condition claimant was in in January 1997.
Since the prior arbitration hearing claimant has been confronted with immigration problems both for herself and her daughters, her being separated from her husband and also finding out that her former husband is bisexual, as well as having continued financial problems.
As to the separation from her husband, claimant denied that this had any impact on her depression and that she married this individual in order to resolve immigration problems for her daughter. She further stated her former husband’s bisexuality, although it may have shocked her, did not matter to her after the initial shock was over. (Def. Ex. 5C, pp. 8, 10) As it related to the immigration problems for her daughters, claimant acknowledged that she worried about this situation but that she believed that their problems could be resolved by marrying a U.S. citizen. (Def. Ex. 5C, p. 18)
In relation to her financial situation at the time of her deposition claimant stated that it had worsened because her daughter was no longer living with her and was not providing financial support as the daughter had been doing prior to that time. (Def. Ex. 5, pp. 40-41) At hearing claimant testified that after the workers' compensation benefits from the prior arbitration decision ended her depression has been aggravated.
Claimant continues to see Dr. Egger for psychiatric care. Dr. Egger, on December 30, 1999, in a letter to claimant's attorney, stated he saw essentially no change in claimant's mood disorder or pain disorder since February 1998. (Cl. Ex. 1C) On February 10, 2000, Dr. Egger, in another letter to claimant's attorney, reported that in 1998 and 1999 claimant had no change in her mood disorder, that her condition was static and was unlikely to change in the foreseeable future. (Cl. Ex. 1B)
Dr. Egger saw claimant on August 31, 2000, and issued a report dated September 8, 2000, which is part of the record as claimant's exhibit 1A. Dr. Egger recorded that claimant stated that the job application process was extremely stressful and that claimant became quite fretful, overwhelmed as well as dysphoric. Dr. Egger, in that report, increased claimant's permanent partial functional impairment from 25 percent, as he opined claimant was at in 1998 and 1999, to 35 percent as of September 8, 2000. He then stated the following: “I think if she can work at all, it is going to have to be under very restricted circumstances with a very low stress job with considerable job coaching at a rather slow work pace.”
Dr. Egger was deposed on January 26, 2001, and his deposition testimony is part of the record as claimant's exhibit 1G. He stated that claimant's depression had not really changed in recent years except for getting a little bit worse. (Cl. Ex. 1G, p. 68) Dr. Egger was asked as to the increase of the impairment rating from 25 percent to 35 percent and Dr. Egger testified that he believed when he did give a 25 percent impairment rating that that was the best that claimant was going to be but that claimant is a little worse now so that 35 percent is the best that is going to be seen as far as claimant's ability to function. Dr. Egger was then asked the following question with his response.
- So at the time you assessed the functional impairment rating of 25 percent, you expected her functional impairment rating to actually return to a greater degree?
- Well, to – no, to about that degree. I didn’t think she probably was quite at that point at that time. I was saying, okay, based on what I see of her now, and what I expect we can do, that is probably the best we’re going to get, we’re probably going to have someone who’s about 25 percent, that’s about the best we’re ever going to achieve. That didn’t mean that exactly at that moment in time she was exactly at 25 percent, necessarily, but that was about the best I could hope for.
(Cl. Ex. 1G, pp. 82-83)
Dr. Egger opined that claimant's depression is worse due to not having steady work and being more discouraged as time goes on. (Def. Ex. 1G, pp. 84-85) Dr. Egger further believed that claimant's English was not much better now than it was when he began seeing her and that she had not been doing well in those studies. (Cl. Ex. 1G, p. 91) This is obviously in contrast to the testimony offered by Ms. Arn-Priester.
Dr. Egger continued to believe that claimant's current psychiatric disability was substantially the result of the work injury. He was asked whether, as of February 19, 1998, claimant was employable, to which Dr. Egger responded that she was not then or in any time period thereafter. He later stated that claimant is now less employable and had not improved at the extent anticipated. (Cl. Ex. 1G, pp. 98, 101-102)
Claimant was seen by Bruce D. Gutnik, M.D., at the request of defendant employer, for an independent medical evaluation on June 9, 2000. Dr. Gutnik disagreed with the diagnosis that claimant has major depressive disorder but in his opinion claimant has mild adjustment disorder with some mild symptoms of mixed anxiety and depressed mood secondary to claimant's present financial situation. Dr. Gutnik further indicated that claimant's present financial situation was for reasons not connected to the work injury. (Def. Ex. 1B, p. 12) Dr. Gutnik further found claimant's pain disorder not to be the result of the injury but “rather, represents exaggerated and amplified reports of pain for secondary gain.” (Def. Ex. 1B, p. 13) Dr. Gutnik opined claimant's depression related to the 1995 work injury had resolved and that claimant needed no further psychological treatment as a result of the initial work injury. (Def. Ex. 1B, p. 13)
Philip Davis has been retained by defendant employer to provide claimant vocational assistance in trying to find a job. Mr. Davis has worked with claimant and has provided her job leads to positions that he feels claimant is able to perform. Mr. Davis believes that with claimant's increasing language skills and also basic computer abilities that this will help her in finding a job. Jobs that require bilingual skill within her restrictions such as telemarketing and working at customer services are jobs that he believes she can perform.
Mr. Davis disagreed with the assessment offered by James T. Rogers, who had been retained by claimant's attorney to offer an opinion in relation to claimant's employability. Mr. Rogers’ reports, which are part of the record as claimant's exhibits 3A and 3B, has found claimant's English abilities not to be sufficient to perform the jobs that Mr. Davis has been providing as leads to claimant. Mr. Rogers also indicated claimant still does not have a GED and that the jobs that Mr. Davis has provided as leads require this.
Mr. Davis acknowledged that claimant's present English skills would still limit her ability to obtain employment and that claimant's continued emotional instability could be a limitation as well.
REASONING AND CONCLUSIONS OF LAW
Upon review-reopening, claimant has the burden to show a change in condition related to the original injury since the original award or settlement was made. The change may be either economic or physical. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959). A mere difference of opinion of experts as to the percentage of disability arising from an original injury is not sufficient to justify a different determination on a petition for review-reopening. Rather, claimant's condition must have worsened or deteriorated in a manner not contemplated at the time of the initial award or settlement before an award on review-reopening is appropriate. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). A failure of a condition to improve to the extent anticipated originally may also constitute a change of condition. Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978).
Claimant has presented evidence from Dr. Egger that her condition has worsened in a manner not contemplated at the time the initial award in this case was made. Dr. Egger has increased the functional impairment rating from 25 percent, which he believed would be the best that claimant could attain, to now determining claimant to have a 35 functional impairment rating. Dr. Egger found claimant's condition to basically be static in 1998 and 1999 and then worsen in 2000. Dr. Egger continues to opine that the primary factors related to claimant's depression is the initial work-related injury and claimant's inability to find other full-time employment to then provide for her financial support. The opinion of Dr. Egger in relation to claimant's condition and the causation of that condition to the work injury will be given more weight than the opinion of Dr. Gutnik, as Dr. Egger has seen claimant on several occasions and continues to treat her for her depression and Dr. Gutnik only saw claimant once to offer his independent medical evaluation.
The next determination to be made is the additional industrial disability claimant has as a result of the change of her condition.
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 and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function.
Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability.
There are no weighting guidelines that indicate how each of the factors are to be considered. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. SeeChristensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985).
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.
Claimant is now 41 years old and is making substantial progress in her ability to understand and speak English. This was well documented by her ability to function in the hearing without the need of an interpreter. Her instructor has also indicated that claimant is making substantial progress in improving her English skills and claimant is also receiving keyboard training from this instructor. Claimant still does not have a GED but it would appear that claimant's ability to obtain one is better now than it was at the initial arbitration hearing. Claimant has had intervening employment since the arbitration hearing, which did not necessarily end as a result of claimant's work-related depression and back injury. Mr. Davis has been working with claimant to attempt to find positions that will allow her to be involved in gainful employment, however, Dr. Egger has opined that he believes claimant is less employable now than she was at the initial hearing. After considering all these factors it is determined claimant has established an increase in her industrial disability of 10 percent stemming from this review-reopening proceeding. Therefore, claimant's total industrial disability will be 50 percent, of which 40 percent stems from the arbitration decision filed on February 5, 1998, and 10 percent from this review-reopening proceeding.