HARRIS V. RAY'S TRANSFER CO.
Page 13
BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______
:
CHRISTOPHER HARRIS, :
:
Claimant, :
:
vs. :
: File No. 5034126
RAY'S TRANSFER CO., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
GENERAL CASUALTY OF :
WISCONSIN, :
:
Insurance Carrier, :
Defendants. : Head Note No.: 1804
______
STATEMENT OF THE CASE
This is a contested case proceeding under Iowa Code chapters 85 and 17A. Claimant, Christopher Harris, sustained a stipulated work injury in the employ of defendant Ray’s Transfer Co., on November 5, 2007, and now seeks benefits under the Iowa Workers’ Compensation Act from that employer and its insurance carrier, General Casualty of Wisconsin, which was substituted as a party defendant at hearing.
The claim was heard in Council Bluffs, Iowa, on March 15, 2012 and deemed fully submitted on April 12, 2012. The record consists of claimant’s exhibits 1-24, defendants’ Exhibits A-L, and the testimony of Harris, Tammy Harris, and Dick Christensen.
ISSUES
STIPULATIONS:
1. Harris sustained injury arising out of and in the course of employment on November 5, 2007.
2. The injury caused temporary disability, the extent of which is not in dispute.
3. Permanent disability, if any, should commence on April 5, 2010.
4. The correct rate of weekly compensation is $302.99.
5. The cost of disputed medical care was reasonable and, if called, providers would testify that the care was necessary; defendants offer no contrary proof.
6. The parties will submit a post--hearing stipulation concerning defendants’ claim to credit. However, the parties failed to honor this stipulation.
ISSUES FOR RESOLUTION:
1. Whether the injury caused permanent disability.
2. Nature and extent of permanent disability.
3. Entitlement to medical benefits under Iowa Code section 85.27, including:
a) Whether Harris is entitled to alternate medical care.
b) Whether disputed treatment was necessary.
c) Whether the injury caused need for treatment.
d) Whether treatment was authorized by defendants.
4. Entitlement to an independent medical evaluation under Iowa Code section 85.39.
FINDINGS OF FACT
Christopher Harris, age 44, is a right-handed man whose work history has primarily been in various unskilled construction jobs, such as roofing, masonry, and drywall. Harris attended school only through the eighth grade, but was limited to special education classes and repeated both seventh and eighth grades. He has not attained a GED or any other formal education and has modest abilities in basic areas, such as reading and arithmetic. Harris is of limited intelligence and is not a likely candidate for extensive retraining.
Harris worked for Ray’s Transfer Co., a trucking business, twice; the second stint comprising approximately five or six years prior to November 5, 2007, when he sustained a stipulated work injury to the right hand. Harris, however, contends that his injury extends to the body as a whole due to the development of chronic regional pain syndrome (this condition also is or has previously been known as “CRPS,” “reflex sympathetic dystrophy,” “RSD”, and “causalgia”), and/or psychological injury. Harris’ contention is, however, disputed, as is his credibility in this proceeding.
Harris’ duties at Ray’s Transfer Company included yard work, building maintenance, and relatively simple diesel mechanical work such as brake repair. Harris’ injury actually occurred while he was grinding a concrete floor at Ray’s (the business owner) personal home. While he was doing so, the grinder accidentally struck a corner, bucked up in the air, and sliced into the radial side of his right arm at the wrist.
Harris was taken to a local hospital and a surgical repair accomplished by D.Larose, M.D. Dr. Larose described the procedure as:
Lavage and debridement of a fracture of the radius. Repair of the extensor carpi radialis longus. Repair of the extensor carpi radialis brevis. Repair of the extensor pollicis longus. Repair of the abductor pollicis longus. Repair of the extensor pollicis brevis.
(Exhibit B, page 2)
Harris subsequently complained of ongoing symptoms and was referred to orthopedic surgeon Richard Murphy, M.D., to whom he presented on February 25, 2008. Dr. Murphy’s diagnostic impression included probable reflex sympathetic dystrophy based on these findings:
PHYSICAL EXAMINATION: Reveals a well-healed laceration on the dorsoradial aspect of the right wrist. The patient holds his hand in a flexed protected posture with no active extension or flexion of the right thumb with minimal motion of the fingers of the right hand. With pinwheel sensory exam the patient withdraws his hand from any stimulation. He has decreased sensation upon further exam on the dorsal aspect of the right wrist. There is evidence of a smooth appearance and hyperemia [excess blood congestion] and a mottled appearance of the hand.
(Ex. 4, p. 2)
These findings are familiar in CRPS claims. Dr. Murphy ordered therapy and further diagnostic testing by EMG conduction studies and MRI scans. Three days later, neurologist Len Weber, M.D., accomplished EMG and nerve conduction studies, which found “severe and probably total injury to the axons of the right radial sensory nerve, consistent with his grinder laceration to the radial side of the right wrist.” The testing was otherwise normal. (Ex. 6, p. 2)
On May 15, 2008, Dr. Murphy accomplished a surgical repair described as tenolysis extensor, right wrist; sensory branch radial nerve reconstruction with neurogen graft guide. (Ex. 7) Harris, however, reported persistent pain, sweating and hypoesthesia, after which Dr. Murphy ordered a referral to physiatrist Chris Criscuolo,M.D., who has provided substantial care ever since, and with whom Harris now seeks alternate medical care.
On April 5, 2010, Dr. Murphy found Harris at maximum medical improvement and recommended no further treatment other than pain management with Dr. Criscuolo. Dr.Murphy also recommended a functional capacity evaluation [“FCE”]. This was accomplished on May 3, 2010, by physical therapist Joanie Young. There were, however, problems encountered in the administration of the study:
Pain Report
At the beginning of the FCE, Mr. Harris rated his right hand/wrist pain at a level of 7/10 on a scale of 0 to 10 with 10 being the worst pain imaginable. The highest pain that he reported was during the forearm range of motion testing. He became tearful and began to cry stating that he can have pain at a level of 11/10 when his hand is touched. Pain behaviors included guarding and flinching of the upper extremity as well as pain related sounds including grunting and crying. The pain behaviors were consistently exaggerated when attempts were made to complete the physical examination and limited the functional use of his right wrist/hand.
. . . .
Quality of Movement
Mr. Harris demonstrated significant functional limitations in his right forearm, wrist and hand. He positioned his right upper extremity in a protective posture with the shoulder adducted and internally rotated. The elbow was positioned in flexion with the forearm in mid-position. Minimal joint movement was noted in either the wrist or digits. He maintained this posture during the entire testing which did not allow for functional use of the right wrist or hand.
(Ex. 13, p. 3)
On May 28, 2010, Dr. Murphy rated impairment at 100 percent of the right upper extremity:
[W]ith patient’s diagnosis of reflex sympathetic dystrophy as noted above, I expect the RSD to be permanent and do not feel further treatment would resolve his residual RSD but because of his chronic pain I advised further chronic pain management as per Dr. Criscuolo.
….
The patient has completed a Functional Capacity Examination and it is my opinion that the patient’s permanent work restrictions are that he is unable to perform work with use of the right upper extremity because of residual pain and limitation of motion. Therefore, I would advise the patient that he may work within the restrictions of no use right upper extremity and, therefore, one-handed work, i.e. may use the left upper extremity without restrictions.
(Ex. 4, pp. 33-34)
Harris notes in his post-hearing brief that defendants thereafter began paying permanency benefits and that medical expenses to that point were all paid.
In October 2010, Harris and Ray’s Transfer Co. discussed a possible return to work. According to Harris, Ray’s was under pressure to bring him back from its insurance carrier; in any event, a comment about returning to “push a broom with one hand” was insensitive or damaging enough, in combination with his injury, to cause suicidal depression. Jennie Edmonson Hospital admission notes of Nicholas B. Bruggeman,M.D., are dated October 26, 2010:
History and Physical:
This 42-year-old white male has had a history of sympathetic dystrophy of the right wrist and hand going back to an injury in 2007. … Since that time the patient has had increasing pain and inability to use the fingers of his right hand and was diagnosed with sympathetic dystrophy. …The patient states he was doing comparatively well until yesterday when he saw his lawyer who told him that his job -- told him he had to go back to work starting on Monday. Since then he has been crying constantly and has had suicidal thoughts. He had locked himself into his garage and had a rope and was thinking about hanging himself when his brother broke in and got him out. The patient comes in now crying and states he is still suicidal. Because of that, I called Dr. Sattar and got him admitted to psychiatry.
(Ex. 15, p. 3)
Harris demonstrated similar hand symptoms during his psychiatric admission:
The right hand is very difficult to exam. [sic] I do not see any evidence of an infection. The wounds are nicely healed. There is no deformity. There are no obvious trophic changes of the fingers to limit the exam. I am unable to touch Christopher’s hand because of exquisite pain, therefore a meaningful evaluation is very difficult to perform.
(Ex. 15, p. 5)
Harris also indicated that his emotional condition had been worsening for some time.
Christopher states that he has been depressed. He is grieving over the loss of his job. He had a work accident 3 years ago. Christopher states that he has had significant changes in appetite in which he is eating less and also has had difficulty sleeping. He has been isolating, has anxiety, is easily agitated and angry, and suspicious and paranoid. Christopher also states that he has poor impulse control and has been confused and has had suicidal ideation and did barricade himself in his garage and was going to hang himself.
(Ex. 15, p. 12)
Harris was discharged on October 29, 2010. The costs of his hospitalization are claimed in this proceeding. It does not appear that Harris has received subsequent psychiatric care, and there is no medical opinion of record suggesting that he has permanent psychological impairment of any kind.
On multiple occasions in August, September and October 2010, defendants recorded Harris with surreptitious surveillance video. The effect was profound. The video recordings do not show Harris using his right hand in vigorous ways compatible with, say, employment as a diesel mechanic or construction worker. They do, however, repeatedly show Harris using his right hand in commonplace ways, such as carrying canned beverages, opening doors, smoking cigarettes, and carrying an apparently loaded plate at a buffet restaurant.
Dr. Murphy viewed the tape and retracted his previous opinions:
I reviewed a disk of surveillance tape of Mr. Harris using his right hand including grabbing a large cup with use of his right hand and thumb, opening a door with his right hand and thumb, holding a phone with his right hand and thumb, and going through a buffet line holding a plate heaped with food with his right hand and thumb. After reviewing the tape Mr. Harris clearly demonstrates more functional use of his thumb and hand than he demonstrated on numerous clinical examinations. Therefore after review of the tape it modified my previous opinion in that the patient has functional abilities with his hand that he denied being able to use on numerous clinical exams, so he appears to have a functional use of the hand that would be consistent with work using the hand without restrictions. Therefore, based on surveillance demonstrations he clearly does not have 100% impairment in the hand and assessment of permanent impairment is invalid because of the patient’s lack of being able to use his hand on numerous occasions in the clinical setting but he demonstrates excellent functional use of his hand in the surveillance tape.
(Ex. 4, p. 37)
Dr. Bruggeman, who had previously suggested “no use of this hand,” (Ex. 8, p. 8), likewise changed his opinion:
I also reviewed the video itself. I would agree that the function displayed in the video is not at all consistent with Mr. Harris’ history or physical exam and because of this, it is impossible to determine his functional deficit.
(Ex. 8, p. 11)
On December 23, 2010, Dr. Murphy strongly reiterated his retraction:
[A]s noted in the video, the level of function demonstrated by the patient with respect to the hand is grossly inconsistent with his multiple presentations to me and follow-up exams. It is clear that the complaints and lack of function reported to me by the patient during his postoperative visits were invalid.
At this time, it is my opinion, within a reasonable degree of medical probability, that the patient did not sustain 100% impairment of the right hand and upper extremity as a result of the November 5, 2007 work accident. Due to the invalid reports by the patient to me, I am unable to determine an accurate degree of permanent impairment. It is further my opinion, within a reasonable degree of medical probability, that the patient has no permanent restrictions to his hand or his right upper extremity. In addition, I no longer believe that chronic pain management treatment is reasonable or necessary as a result of his November 5, 2007 work accident.