SIMMONS V. MARSDEN BUILDING MAINTENANCE CO.
Page 6
BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______
:
TAMMY JO SIMMONS, :
:
Claimant, :
:
vs. :
: File No. 5008809
MARSDEN BUILDING, :
MAINTENANCE CO. :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LUMBERMAN’S MUTUAL :
CASUALTY CO., :
:
Insurance Carrier, : HEAD NOTE NO: 1400
Defendants. :
______
STATEMENT OF THE CASE
This is a contested case proceeding in arbitration under Iowa Code chapters 85 and 17A. Claimant, Tammy Jo Simmons, sustained a stipulated work injury in the employ of defendant, Marsden Building Maintenance Company, on February 26, 2001, and now seeks benefits under the Iowa Workers’ Compensation Act from that employer and its insurance carrier, defendant, Lumberman’s Mutual Casualty Co.
The claim was heard and fully submitted in Des Moines, Iowa, on October 22, 2004. The record consists of Simmons’ testimony, her exhibits 1-4, and defendants’ exhibits A-U.
ISSUES
STIPULATIONS:
1. Simmons sustained injury arising out of and in the course of employment on February 26, 2001.
2. The injury caused temporary disability, the extent of which is not in dispute.
3. Permanent disability, if any, should be compensated by the industrial method (loss of earning capacity) commencing June 24, 2001.
4. The correct rate of weekly compensation is $132.14.
5. Defendants should have credit for benefits paid.
ISSUES FOR RESOLUTION:
1. Whether the injury caused permanent disability.
2. Extent of industrial disability.
FINDINGS OF FACT
Tammy Simmons, age 39, has twice been employed as a custodial worker for Marsden Building Maintenance and was so employed on February 26, 2001. She sustained a back injury on that date in an unwitnessed fall in an icy parking lot, which, she contends, caused permanent impairment and loss of earning capacity. Defendants point out that she had a significant preexisting history of back problems and contend that the stipulated work injury caused only a temporary aggravation of those problems. Expert medical opinion on the issue is divided.
Simmons’ low back problems go back at least as far as 1988, when she sustained a work injury in another parking lot fall. (Exhibit A, page 21) Simmons sought medical care for back problems again in 1990 and 1994, and in June 1997 reported radiating pain to the buttocks, hips and down the anterior aspect of both legs with some numbness in the toes. (Ex. F, p. 87) Simmons had at least four more back incidents in 1997 with complaints of radicular pain and received treatment including a lumbar brace and physical therapy, and was briefly kept off work. (Ex. F, pp. 88-90)
No documented complaints of back problems appear during 1998 following Simmons' release from physical therapy in January of that year. Complaints of low back pain next appear on January 18, January 25 and February 8, 1999. (Ex. G, pp. 92-94) Simmons had additional incidents involving back complaints with some lost time on April20 and again on May 25, 1999. (Ex. G, pp. 95-96)
On April 20, 2000, Simmons sought care for a back injury at home, and was assigned a 15-pound lifting restriction, which may have never been lifted. (Ex. F, p. 98) She was kept off work for seven days following a lifting incident while working at a discount department store in November 2000 and experienced continuing pain perhaps into 2001. (Simmons deposition, p. 73)
The work injury on February 26, 2001, occurred in a parking lot slip-and-fall, and resulted in lost time and a course of conservative medical care including physical therapy. A lumbar MRI scan was ordered by treating physician Philip Clevenger, D.O., and accomplished on April 4, 2001. This study demonstrated mild to moderate disc degeneration at multiple levels in the mid and low back, and right-sided disc herniations at L3-4 and L4-5, possibly affecting the right L5 nerve root. (Ex. I, p. 141) No comparison with earlier studies is possible, as none exist.
Dr. Clevenger next referred Simmons to orthopedic surgeon Cassim Igram, M.D., who found radicular complaints inconsistent with clinical findings and ordered EMG studies. (Ex. C, p. 77) When these failed to provide evidence of radiculopathy, Dr. Igram determined that no surgical remedy was in order and referred his patient on to physiatrist Kurt Smith, D.O., while also releasing her to limited duty work effective June21, 2001. (Ex. C, pp. 78-79)
Dr. Smith’s examination on August 7, 2001, found Simmons with pain in the low back and radiation down the right leg with feelings of numbness, pins and needles, cramping and “knifelike” pain. (Ex. B, p. 60) Dr. Smith found straight leg testing negative bilaterally and sensation intact to light touch and pinprick. (Ex. B, p. 61) He ordered epidural steroid injections and released Simmons to work with continued temporary restrictions.
Two epidural injections were accomplished, on September 19 and October 16, 2001. Simmons was offered a third injection, but declined; the anesthesiologist noted:
Overall she feels that she is doing much better. At this point she does not feel that she has enough pain to justify doing the third epidural steroid injection, but if she does have return of her pain, especially her radicular pain, she will contact the Anesthesia Pain Control Center directly for her third epidural steroid injection.
(Ex. E, p. 85)
Simmons has never requested the third injection. She subsequently returned to Dr. Smith on November 27, 2001 reporting intermittent low back pain that had improved significantly since the epidural injections; sensation was again intact to light touch and pinprick. (Ex. B, p. 63) Dr. Smith restricted vacuuming for two weeks but thereafter lifted all restrictions and released his patient from care on a p.r.n. (return as necessary) basis. (Id)
Dr. Smith reevaluated Simmons on April 9, 2002, finding tenderness in the lumbar spine, but good range of motion, intact strength in the lower extremities and intact sensation to light touch and pinprick. Dr. Smith’s report of the same date concluded:
She presented back to clinic on April 9, 2002, at which point, I placed her at maximum medical improvement and returned her to work without restrictions and without permanent impairment.
(Ex. B, p. 67)
Simmons returned to Dr. Smith’s office on August 31, 2004 with mild tenderness to palpation, but negative straight leg raising, full range of motion, and again intact to pinprick and light touch. It is unclear from the medical records of that date whether she was actually seen by Dr. Smith, or by a physician’s assistant, one Chad Quist, who actually dictated the report. For what it may be worth, Dr. Smith – or Quist – found lumbar myalgia but concluded that Simmons’ back pain was “not related to the 2000 accident,” presumably in reference to the incident in February 2001. (Ex. B, p. 72) In her deposition testimony given May 25, 2004, Simmons conceded that she was not experiencing any low back or leg symptoms on April 9, 2002. (Simmons deposition, p.76) In fact, Simmons also conceded that her current pain was akin to that she experienced prior to her work injury:
Q. And so do you believe that you continue to have that pain that Dr.Clevenger referred to prior to February 26 of ’01? That’s the pain you continue to have today?
A. Yes.
(Simmons deposition, p. 77)
On the day before this visit, August 30, 2004, Simmons presented to the Newton Clinic with right neck/shoulder pain and exacerbation of low back pain after helping someone to move over the weekend. (Ex. F, p. 112) Simmons did not mention this incident or her need for care to Dr. Smith (or P.A. Quist) on August 31, two days later, or to John D. Kuhnlein, D.O., to whom she presented for an independent medical examination at her own request on September 2, 2004.
According to Dr. Kuhnlein’s report authored September 16, 2004, Simmons had chronic low back pain superimposed on degenerative disc disease, and the distribution of symptoms was different after the work injury; thus, she sustained an aggravation due to the injury. (Ex. 2, p. 9) Although Dr. Kuhnlein felt that Simmons had not yet attained maximum medical improvement, he rated impairment at seven percent of the whole person and recommended a set of lifting and other activity restrictions. (Ex. 2, pp. 9-10)
Dr. Kuhnlein also offered extensive deposition testimony on October 13, 2004. According to Dr. Kuhnlein, Simmons’ physical examination demonstrated “a sensory deficit but not truly a radicular deficit.” (Kuhnlein deposition, p. 66) In part, he found causal nexus to the work injury because her prior symptoms were only episodic and had not gone below the knee, at least consistently. (Id) It is noteworthy that at one point, Dr. Kuhnlein was asked a highly relevant hypothetical question (if “patient X” had the same findings as Simmons did on April 9, 2002, could a reasonable physician assign zero percent impairment); Dr. Kuhnlein first correctly identified the question as hypothetical, but then refused to answer it on the grounds that his examination might have been different. This is an evasive response.
Dr. Kuhnlein’s evaluation of Simmons took place over two years after Dr. Smith found her at maximum medical improvement, and only three days after she experienced an exacerbation of back pain that was not reported to him. Dr. Kuhnlein found decreased sensitivity to pinprick and light touch, essentially the only objective evidence of sensory loss, but this finding is inconsistent with multiple earlier findings of no decreased sensitivity. It is also not at all clear that Simmons’ symptom distribution was in any significant way different from prior to her work injury, since she had reported radiating pain down both legs into the toes. Given the totality of circumstances, Dr. Smith’s opinion is more persuasive. As of April 9, 2002, Simmons had no impairment and was able to return to work without medical restriction.
CONCLUSIONS OF LAW
Claimant has the burden of proving by a preponderance of the evidence the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). Whether an injury or disease has a direct causal connection with the employment, or arises independently thereof, is essentially within the domain of expert testimony, and the weight to be given such an opinion is for the finder of facts. When an expert’s opinion is based upon an incomplete history it is not necessarily binding on the commissioner or the court. It is then to be weighed, together with the other facts and circumstances, the ultimate conclusion being for the finder of the fact. Musselman, Supra; Bodish v. Fischer, Inc., 257 Iowa 521, 522, 133 N.W.2d 867.
The more persuasive expert opinion in this claim fails to support Simmons’ contention that she sustained permanent impairment as a result of the subject work injury. Defendants accordingly prevail.
ORDER
THEREFORE, IT IS ORDERED:
Simmons takes nothing further.
Costs are taxed to Simmons.
Signed and filed this _____24th____ day of February, 2005.
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DAVID RASEY
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
Copies to:
Mr. Erik A. Luthens
Attorney at Law
STE 206-24
1200 Valley West Dr.
W Des Moines, IA 50266-1953
Mr. Joseph A. Cacciatore
Attorney at Law
1600 Hub Tower
699 Walnut
Des Moines, IA 50309-3929
DRR/pjs