CORNELIUS v. LABOR WORLD OF IOWA, INC. a/k/a USA STAFFING
Page 1
before the iowa WORKERS’ COMPENSATION commissioner
______
:
GARY CORNELIOUS, :
:
Claimant, :
:
vs. :
: File No. 5040735
LABOR WORLD OF IOWA, INC. a/k/a :
USA STAFFING, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
ZURICH AMERICAN INSURANCE, :
: Head Note Nos.: 1402.40; 2701
Insurance Carrier, :
Defendants. :
______
A hearing was held before a deputy workers’ compensation commissioner on June 27, 2013. The presiding deputy issued the arbitration decision on October 7, 2013. The parties admitted a work injury occurred on September 26, 2011. However, the issues before the deputy were:
- Whether claimant’s injury was the cause of a permanent disability; and if so,
- The extent of permanent partial disability benefits to which claimant was entitled; and
- Whether claimant was entitled to alternate medical care pursuant to Iowa Code section 85.27.
The presiding deputy found claimant had not established the injury was a proximate cause of the disability on which the claim was based. The deputy acknowledged the question of causal connection was essentially within the domain of expert testimony. However, the expert medical evidence had to be considered with all other evidence introduced that had any bearing on the causal connection between the injury and the disability.
The presiding deputy wrote in his arbitration decision the following rationale regarding the issues of medical causation and permanency:
Three experts have evaluated claimant. None of the physicians who have examined claimant believe claimant has a permanent impairment. Dr. Miller believes claimant’s current symptoms are not related to his work injury. (Ex. B, p. 7) Dr. Igram opined claimant does not have any permanent impairment. (Ex. D, p. 2)
Claimant did testify he has ongoing pain and limitations from his September 26, 2011 injury. Claimant testified he believes he was not thoroughly examined by either Dr. Mooney, Miller, or Igram. However, claimant could have received an IME from a physician of his own choice, at the expense of the defendants under Iowa Code section 85.39. Claimant did not do this. None of the three experts in this case found claimant had any permanent impairment. Dr. Miller opines claimant’s current symptoms are not related to his work injury. Dr. Igram opines claimant has no permanent impairment from the September of 2011 injury. Given this record, claimant has failed to carry his burden of proof that his injury from September 26, 2011 resulted in a permanent disability.
As claimant has failed to carry his burden of proof that his September 26, 2011 injury resulted in a permanent disability, the issue regarding the extent of claimant’s entitlement to permanent partial disability benefits is moot.
(Arbitration Decision, pp. 4-5)
With respect to the matter of alternate medical care pursuant to Iowa Code section 85.27, the presiding deputy denied alternate medical care. In support of the deputy’s decision, he wrote:
Claimant testified he believes he has received inadequate care from Drs.Mooney, Miller, and Igram. Claimant was evaluated by all three physicians. Claimant did receive diagnostic testing. He was offered physical therapy. Dr. Miller opines claimant’s current symptoms are not related to his September of 2011 injury. Dr.Igram opines claimant does not require further medical treatment. No expert has opined claimant should receive further medical treatment. Given this record, claimant has failed to carry his burden of proof that he is entitled to alternate medical care.
(Arb. Decn, p. 5)
On October 28, 2013, claimant filed his notice of appeal. The appeal brief was filed on December 16, 2013. Defendants filed their reply brief on January 6, 2014. Claimant filed his reply brief on January 16, 2014.
Firstly, claimant argues he is entitled to temporary disability benefits. During the arbitration hearing the parties stipulated the work injury was a cause of temporary disability. However, the parties also stipulated claimant’s entitlement to temporary disability benefits was not an issue. The presiding deputy stated at the commencement of the arbitration hearing:
Prior to us going on the record, I had a brief off-the-record conversation with counsel regarding the hearing report. However, I would like to go over the hearing report briefly to make sure I understand the issues in dispute in this case. First off, as I indicated to counsel, defense counsel initially circled that it was disputed that the injury is a cause of temporary disability. However, the parties have indicated to me that claimant’s entitlement to temporary disability benefits is not an issue, so with claimant’s counsel approval, I have crossed out the D at least as it pertains to the alleged injury being a cause of temporary disability and circled the stipulated box. However, it is disputed that the alleged injury is a cause of permanent disability. It is disputed that claimant is entitled to permanent partial disability benefits. The parties do believe the claimant’s weekly rate to be $184.19 per week, and claimant is seeking alternate medical care under Iowa Code 85.27. Would that be a correct description of the issues in this case Mr. Banks?
(Transcript, pp. 3-4)
The hearing report shows that entitlement to temporary benefits and/or healing period benefits was checked as no longer a disputed matter. (Hearing Report) The presiding deputy approved the hearing report with an order bearing the signature of the deputy and the date of June 27, 2013. (Hearing Report, p. 2)
It is abundantly clear in the record, claimant’s counsel indicated to the presiding deputy, temporary benefits would not be an issue at the arbitration decision. Claimant cannot now on appeal raise this issue for the first time. Claimant’s request for additional temporary benefits is denied as the issue was not preserved for appeal.
With respect to the issues of medical causation and permanency, the presiding deputy explained in detail why he determined there was no medical causation. The deputy also took into account the testimony of claimant during the arbitration hearing. The deputy considered claimant’s testimony regarding complaints of pain and physical limitations. Claimant testified he was limited in what he could do at Pizza Hut with respect to lifting and that his employer was providing various accommodations.
The undersigned also reviewed exhibit M which contained video footage of claimant holding a “Pizza Hut” sign and dancing on a street corner in Ames, Iowa. After reviewing, the video footage, it is evident this claimant is able to dance and move quite gracefully for a man of his age. His various gestures are really remarkable. His movements do not appear limited, despite claimant’s testimony.
Finally, the deputy succinctly addressed the issue of alternate medical care. No additional discussion is warranted on the topic.
The helpful arguments of both parties have been considered. The undersigned has reviewed the record of evidence de novo.
Pursuant to Iowa Code sections 86.24 and 17A.15, I affirm and adopt as the final agency decision the proposed arbitration decision filed on December 16, 2013, with the brief additional analysis included in this appeal decision.
ORDER
IT IS THERFORE ORDERED that the arbitration decision of October 7, 2013 is AFFIRMED.
Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript.
Signed and filed this ___17th______day of October, 2014.
______
MICHELLE A. McGOVERN
ACTING WORKERS’ COMPENSATION COMMISSIONER
Copies To:
Mr. Stephen J. Banks
Attorney at Law
PO Box 1227
Waukee, IA 50263
Ms. Lindsey E. Mills
Attorney at Law
PO Box 36
Cedar Rapids, IA 52406-0036