BROWN V. ELECTROLUX
Page 1
before the iowa WORKERS’ COMPENSATION commissioner
______
:
BEVERLY BROWN,:
:
Claimant,:
: File No. 5013585
vs.:
: ARBITRATION
ELECTROLUX,:
: DECISION
Employer,:
Self-Insured,:
Defendant.: HEAD NOTE NO.: 1400
______
STATEMENT OF THE CASE
This is a contested case proceeding in arbitration under Iowa Code chapters 85 and 17A. Claimant, Beverly Brown, sustained a stipulated work injury in the employ of self-insured defendant Electrolux on July 12, 2002, and now seeks benefits under the Iowa Workers’ Compensation Act.
The claim was heard and fully submitted in Fort Dodge, Iowa, on May 19, 2005. The record consists of joint exhibits 1-14 and the testimony of Brown and Leslie Balsley.
ISSUES
STIPULATIONS:
- Brown sustained injury arising out of and in the course of employment on July12, 2002.
- The injury did not cause temporary disability.
- Permanent disability, if any, should be compensated as a scheduled member loss to the right arm commencing July 12, 2002.
- On the date of injury, Brown was single and entitled to one exemption.
- Entitlement to medical benefits is not in dispute.
ISSUES FOR RESOLUTION:
- Whether the injury caused permanent disability.
- Extent of permanent scheduled member disability.
- Determination of Brown’s average weekly wage and the resulting rate of compensation.
FINDINGS OF FACT
Beverly Brown is a right-handed 51-year-old production worker employed by Electrolux, a manufacturer of laundry equipment. On July 12, 2002, Brown sustained a laceration to the right wrist while working on a cabinet and was taken to the company doctor, Charles Mooney, M.D. Dr. Mooney’s chart notes record that the laceration extended only to subcutaneous tissue, and he found no neurovascular, motor or sensory deficits. (Exhibit 1, page 1) The wound was cleaned and sutured.
When Brown returned for follow up the next week, however, the wound had become infected. On July 24, Dr. Mooney recorded the following assessment:
ASSESSMENT: Healing laceration. She has really demonstrated signs of secondary inflammation consistent with a first dorsal compartment tendinitis.
(Ex. 1, p. 4)
On August 30, 2002, Dr. Mooney found Brown with markedly improved pain symptoms, but complaints of hypersensitivity in the web space between the thumb and index finger, shooting pain to touch at the laceration site and shaking of the index finger when moving her fingers together, such as while holding a cigarette. (Ex. 1, p. 7) Dr.Mooney found normal grip strength with no deficit in motor control and normal sensation, but “she actually does demonstrate a slight tremor with no pressure of ulnar deviation of the index finger.” (Id) On his assessment of infected laceration with minor hypersensitivity involving the radial sensory nerve, the patient was released from care without restriction.
Brown returned to Dr. Mooney on April 8, 2003 for evaluation of unrelated knee pain, but also voiced continued complaints of decreased pinch grasp strength and paresthesia in the web space between the thumb and index finger. (Ex. 1, p. 9)
Dr. Mooney referred Brown to James Friederich, M.D., who on April 30, 2003, suspected a possible median neuropathy and ordered nerve conduction studies. These were accomplished on May 8, 2003, by John McKee, M.D., and proved normal, with no evidence for median nerve involvement when recording from the thumb or index finger. (Ex. 4, p. 1) Dr. McKee’s notes also include these observations:
PHYSICAL EXAMINATION: This was most unusual. When she held the fingers extended in the right hand there was constant movement of the right index finger. Whether this was a tremor, volitional or semi-volitional, was not clear. When she was distracted with other parts of the examination such as when the hand was in the same position but I was examining the cut, the index finger did not move. There was nonphysiologic breakaway weakness in multiple groups in the right hand, in both the median and ulnar distribution, and even in dorsiflexion of the hand at the wrist, which involved forearm muscles and had nothing to do with the hand and would be well above the scar. This all suggested a non-physiologic cause of the finger movements. When I pointed out the fact that the muscles involving the tremor in the right forearm were well above the point of the scar, on subsequent retesting of strength in the right arm there was no breakaway weakness of those muscle groups!
(Ex. 4, p. 1)
On October 27, 2003, Brown was referred by her attorney for an independent medical evaluation by orthopedic surgeon Jerome G. Bashara, M.D. Dr. Bashara’s evaluation revealed a healed transverse laceration with positive Tinel’s sign (tingling with percussion over a nerve), decreased sensation in the distribution of the superficial radial nerve and some mild weakness of pinch strength. Dr. Bashara diagnosed traumatic neuropraxia and traumatic neuroma of the right superficial radial nerve and declared Brown at maximum medical improvement with three percent impairment of the right upper extremity. (Ex. 5, p. 20) The only restriction suggested was to avoid prolonged pressure on the radial aspect of the wrist.
On March 29, 2004, Brown was evaluated at defendant’s request by neurosurgeon John G. Piper, M.D. Dr. Piper’s examination revealed no specific weakness in the hand, negative Tinel’s sign, no palpable neuromas, and tremors that were inconsistent with any peripheral nerve process. According to Dr. Piper, Brown’s reported symptoms are inconsistent with a radial nerve injury and may be due to gradually developing carpal tunnel syndrome, except for the finger tremor, which “would involve higher levels of the central nervous system to produce this type of movement and therefore seems completely unrelated to this incident.” (Ex. 6, p. 27) Dr. Piper concluded:
In summary, she did sustain a laceration but I suspect there is really no specific impairment related to this injury nor is there any need for any ongoing treatment related to it. The cause of her numbness is not clear at this point in time, but was [sic] does seem to be clear is that this is not related to the laceration in any obvious conceivable way. Similar opinion would hold for the tremors. I believe that her impairment that was assigned to her in the past of 0% seems appropriate. Even if she does have some subtle carpal tunnel syndrome, the changes are so subtle that the diagnosis cannot be confirmed at this point in time and therefore there
is no certainty of this diagnosis and no associated impairment typically found in that case.
(Ex. 6, pp. 27-28)
Shortly thereafter, on April 16, 2004, Brown was seen again by Dr. Mooney, who found normal deep tendon reflexes, normal grip strength bilaterally, “breakaway” weakness (this is generally considered a nonphysiologic sign), and complete anesthesia to light touch in “glove-like” distribution in the right hand. This is also regarded as nonanatomic. (Ex. 1, p. 11) Dr. Mooney’s findings included:
ASSESSMENT: 1) Symptoms of right wrist pain. There is certainly significant psychological and functional overlay as the sensory examination is impossible to relate to any anatomic process and is distinctly different in less than three weeks from the period of the examination by Doctor Piper. I do not find any evidence of carpal tunnel syndrome based on her last nerve conduction study and would not pursue repeating this. She may have some symptoms of overuse regarding the right hand and because of her functional status she is more globalizing these symptoms in an effort to receive treatment and/or be removed from her current position.
(Ex. 1, p. 11)
Jugal T. Raval, M.D., saw Brown in consultation on April 27, 2004. He found Brown’s sensory system normal, except for her complaints of abnormal sensation in the right hand, particularly in the radial nerve distribution. He thought it “very possible” that Brown injured both the radial and median nerves “depending on how deep the cut is,” but noted that he had not seen the “old records pertaining to the injury.” (Ex. 7)
CONCLUSIONS OF LAW
Although it is stipulated that Brown sustained injury arising out of and in the course of employment, the parties dispute whether that injury caused permanent impairment. As claimant herein, Brown has the burden of proving by a preponderance of the evidence the injury is a proximate cause of the disability on which her 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).
That burden has not been met here. Dr. Raval, a consulting physician, thought it “very possible” that the work injury damaged two nerves, depending on how deep the cut was, but does not seem aware that Dr. Mooney’s original notes describe the cut as subcutaneous only. Dr. Bashara, Brown’s independent medical examiner by choice, finds impairment but is generally unspecific as to objective findings in support of that opinion.
On the other hand, Dr. Mooney, the treating physician, describes nonphysiologic and inconsistent symptoms in support of his opinion that no permanency resulted. Likewise, Dr. Piper describes inconsistent symptoms and concludes that no permanency resulted from the work injury. Dr. McKee’s findings are also in accord. Considering the similarity of these findings from treating physicians, it is concluded that Brown has not met her burden of establishing permanent disability as the result of her stipulated work injury. Defendant accordingly prevails and issues pertaining to the rate of compensation are moot.
ORDER
THEREFORE, IT IS ORDERED:
Brown takes nothing further.
Costs are taxed to Brown.
Signed and filed this ____7TH______day of June, 2005.
______
DAVID RASEY
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
Copies to:
Mr. Phillip Vonderhaar
Attorney at Law
840 Fifth Ave.
Des Moines, IA 50309-1398
Mr. John E. Swanson
Attorney at Law
218 – 6th Ave., Fl. 8
Des Moines, IA 50309-4008
DRR/smc