COUNTRYMAN V. DES MOINES METRO TRANSIT AUTHORITY

Page 1

BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER

______

:

JERRY COUNTRYMAN, :

:

Claimant, :

:

vs. :

: File Nos. 5009718 & 5013883

DES MOINES METRO TRANSIT :

AUTHORITY, :

: A R B I T R A T I O N

Employer, :

: D E C I S I O N

and :

:

LIBERTY MUTUAL INSURANCE CO., :

:

Insurance Carrier, : HEAD NOTE NO.: 1803

Defendants. :

______

STATEMENT OF THE CASE

This is a consolidated contested case proceeding in arbitration under Iowa Code chapters 85 and 17A. Claimant, Jerry Countryman, sustained stipulated work injuries in the employ of defendant Des Moines Metro Transit Authority (hereafter “MTA”) on October 5, 2001 (file no. 5009718) and July 2, 2002 (5013883). He accordingly now seeks benefits under the Iowa Workers’ Compensation Act from the MTA and its insurance carrier, defendant Liberty Mutual Insurance Co.

Countryman originally filed two claims in a single petition, file no. 5009718. Pursuant to rule 876 I.A.C. 4.6, a separate original notice and petition must be filed for each claim that seeks benefits due to the occurrence of an injury, although alternate or multiple dates of occurrence may be alleged in the same original notice if the claims arose from the same occurrence or series of occurrences and uncertainty exists concerning the correct date of occurrence or the number of occurrences. Because the exception does not apply in this case, Countryman was ordered to file a new original notice within 24 hours of the hearing and duly complied, giving rise to the second file number now under review.

Both claims were heard and fully submitted in Des Moines, Iowa, on September13, 2004. The record consists of Countryman’s exhibits 1-39 and 41-52, defendants’ exhibits A-K, and the testimony of Countryman and Deborah Wainwright.

ISSUES

FILE NO. 5009718 (OCTOBER 5, 2001)

STIPULATIONS:

  1. Countryman sustained injury arising out of and in the course of employment on October 5, 2001. The MTA concedes a left shoulder injury, but disputes a back injury.
  1. Permanent disability, if any, should be compensated by the industrial method (loss of earning capacity).
  1. The correct rate of weekly compensation is $422.97.
  1. Entitlement to medical benefits is not in dispute.

ISSUES FOR RESOLUTION:

  1. Whether the injury caused temporary disability, and if so, the extent thereof.
  1. Whether the injury caused permanent disability, and if so, the extent and commencement date thereof.
  1. Whether the claim is barred for failure to give notice of injury.
  1. Whether the claim is barred for “failure to accept suitable work” due to retirement.

FILE NO. 5013883 (JULY 2, 2002)

STIPULATIONS:

  1. Countryman sustained injury arising out of and in the course of employment on July 2, 2002.
  1. No claim is made for temporary disability.
  1. Permanent disability, if any, should be compensated as a scheduled member loss to the left thumb.
  1. On the date of injury, Countryman was married, entitled to two exemptions, and had average weekly wages of $676.00. On those facts, published agency tables yield a compensation rate of $431.94, which is hereby adopted.
  1. Entitlement to medical benefits is not in issue.

ISSUES FOR RESOLUTION:

  1. Whether the injury caused permanent disability, and if so, the extent thereof.

FINDINGS OF FACT

I. BACK AND SHOULDER CLAIM – 2001

Jerry Countryman, age 64, worked as a trolley and diesel bus mechanic for Des Moines Metro Transit from September 3, 1963 to October 31, 2002. The job had some significant physical demands, including heavy lifting, squatting, bending, working on a “creeper,” and using a sledgehammer to loosen frozen parts.

Although Countryman had no physical problems when he joined the MTA as a young man, over the years he developed degenerative back problems and chronic back pain starting with an injury in 1972. (Exhibit 19, page 1) On October 5, 2001, Countryman jammed his left shoulder while pulling on a stuck battery that suddenly came free. He experienced immediate onset of “extreme” left shoulder pain, so intense that he claims he didn’t realize that his back had also been hurt in the incident.

The MTA sent Countryman to David Berg, M.D., on the same day. Dr. Berg recorded the following history:

This 61-year-old male who works at the MTA as a mechanic comes in complaining of pain in his left shoulder and upper arm and the inability to abduct his arm. He was pulling on a large battery out of a bus while he was squatting down and his arms were approximately shoulder height. He felt a pop and had sudden pain in his left shoulder that has persisted to this point in time. He denies any radiculopathy or paresthesias. He denies any past history of shoulder problems.

(Ex. 15, p. 1)

No mention of back or leg symptoms was recorded. Dr. Berg’s impression was probable rotator cuff tear of the left shoulder. (Id) Dr. Berg ordered a shoulder MRI scan, but this did not demonstrate a rotator cuff tear; merely “some slight tendonitis and no real significant impingement. There is degenerative [acromioclavicular] joint disease.” (Ex. 18, p. 1) On October 18, 2001, Dr. Berg released Countryman to return to work with a 20-pound weight restriction and no work above shoulder level. No back complaints were recorded on this occasion either. (Id)

Back problems had, however, been recorded previously on a number of occasions. On July 26, 2001, less than three months prior to the work injury, unsigned chart notes from medical clinic Healthsouth record:

This 60-year-old male who we have seen a number of times as a mechanic for the MTA comes in for a recheck of his left chest wall pain and his low back pain. He has a great deal of degenerative arthritis in his low back. He is extremely obese and deconditioned. When he does a lot of bending [illegible] in the case today he was doing a lot of hammering with a sledge hammer overhead, he has some increasing pain in his low back. He denies any radiculopathy.

(Ex. 14, p. 1)

And:

I returned him to regular duty. There is really little we can do from this point on. He is getting myofascial pain. He is going to retire in the next year and a half.

(Id)

Although Countryman had no radiculopathy in July 2001, an earlier assessment of chronic back pain on June 14, 2000 had recorded “complaints of low back pain and pain in right leg” and “[r]epeated movement of forward bending reproduces leg pain.” (Ex. 19, p. 1)

On November 16, 2001, Countryman’s work restrictions were reduced to no repetitive lifting above the shoulder with the left arm. (Ex. 29, p. 1) On November 21, 2001, Dr. Berg noted residual complaints of shoulder aches and difficulty elevating the arm overhead, but deemed the problem “resolving” and released his patient to regular duties without restriction and to follow up as needed. (Ex. 31, p. 1) In all, Countryman actually missed work only on October 5 and 6, 2001.

Orthopedic surgeon Timothy J. Kenney evaluated Countryman on October 14, 2003. He records the following history:

He. . . went through physical therapy and, after about 2-3 months, he returned to regular duty with no significant residual problems in his shoulder. Prior to that injury he had not had any problems in his shoulder.

He worked for another nine months without any great difficulties and eventually retired. More recently, he injured his shoulder at home doing some lifting activities. He, again, has pain in his shoulder with usage at and above shoulder level.

(Ex. 36, p. 1)

Dr. Kenney recommended conservative care, since “this is a recently occurring condition from the recent injury.” (Id, p. 2) However, at Countryman’s next visit on November 17, 2003, he reported “making some overall progress until he did some heavier lifting and exacerbated his pain somewhat. He is still better overall than at his last visit.” (Ex. 36, p. 5)

Countryman testified that he retired on October 31, 2002, because the physical demands of the job were “getting more than I could handle,” but that he would otherwise have continued working until at least age 65½ so as to maximize his social security and retirement benefits. However, there is significant evidence to the contrary. As previously noted, Healthsouth chart notes months prior to the work injury demonstrate that Countryman already intended to retire in a year and a half. Deborah Wainwright, MTA’s human resources director, testified that Countryman has talked to her about his retirement plans repeatedly over perhaps the last seven years, and had even submitted the date in writing in November 2001, almost a full year before the event.

Wainwright added that at upon his retirement, Countryman had work restrictions relative an unrelated condition, but none relative the work injury, that he did not cite that injury as a cause for retirement, and that he had never requested light duty in lieu of feeling forced into retirement due to the physical demands of his job.

Countryman testified that his back condition has never returned to pre-injury status, but admitted that it had been “tolerable” working regular duty subject to a 50pound weight restriction imposed for other health reasons. He has not, however, sought work of any kind since retiring, and has clearly withdrawn from the labor market at this point.

Occupational physician John D. Kuhnlein, D.O., evaluated Countryman at his own request on July 6, 2004, and authored a comprehensive report on July 15. (Ex. 38) According to Dr. Kuhnlein, Countryman has chronic back pain superimposed upon multilevel degenerative disc disease and impingement syndrome of the left shoulder with osteoarthritis. (Id, p. 10) Dr. Kuhnlein does not think that Countryman’s job caused degenerative osteoarthritis of the lumbar spine itself, but thinks that the cumulative effects were a “substantial contributing factor in the development of the chronic low back pain from which he now suffers.” (Ex. 38, p. 11) Dr. Kuhnlein also points to other contributing factors, including obesity, but does not relate back symptoms to the traumatic incident of October 5, 2001.

Dr. Kuhnlein further opined that Countryman’s left shoulder impingement syndrome was caused by underlying osteoarthritis, but was “lit up” by the 2001 incident:

When looking at the history and the records, and within a reasonable degree of medical certainty, the October 5, 2001 incident was a substantial contributing factor in the initial development of the left shoulder impingement syndrome. There have been intervening incidents relative to the left shoulder impingement that may have exacerbated the condition, but Mr. Countryman relates that the symptoms have not significantly

changed as a result of those incidents.

(Id, p. 11)

Dr. Berg offered a contrary opinion following his examination on June 18, 2003:

Jerry’s pain and chief complaint is in the [sacroiliac] joint as it has been for quite some time. If we assume degenerative joint disease as is present in multiple other joints, this is not a work-related problem. The exacerbation of this condition should have ceased quite some time ago.

. . . .

He retired a few months ago but he continues to be troubled with arthritis. He was apparently just diagnosed with arthritis in his right [temporomandibular joint]. He has arthritis in the AC joints of both shoulder and multiple other joints. He has nodes or nodules on the extensor surface of his digits at the joint. He is also affected by cervical and thoracic joint pain due to degenerative disease.

(Ex. D, pp. 2-3)

Physiatrist Robert D. Rondinelli, M.D., evaluated Countryman at the MTA’s request on May 11, 2004. Citing Countryman’s history of back complaints dating from 1978 and the lack of any specific record of back injury on or about October 5, 2001, Dr.Rondinelli concluded that his current back condition represented a “gradual and natural progression of symptoms over time in association with lumbar spondylosis and was not directly or substantially aggravated by acute or specific trauma.” (Ex. K, p. 1) In response to a specific question, Dr. Rondinelli opined that because Countryman was periodically and intermittently symptomatic for many years, employment “from September 1, 2001, through retirement did not, on a cumulative repetitive basis, cause a substantial aggravation of his underlying impairment.” (Ex. K, p. 2)

Based on his two examinations of Countryman in 2003, Dr. Kenney offered this opinion in a report dated April 22, 2004:

Within a reasonable degree of medical certainty, it would be difficult for me to attribute his condition on my evaluation of him in the fall of 2003 to a more remote work injury which occurred on October 5, 2001. The primary cause of his shoulder pain in 2003 appeared to be more of a degenerative process which was exacerbated by a lifting injury that occurred at home prior to my seeing him in 2003. Therefore, the treatment rendered by myself in 2003 would not be causally related to his injury of October 5, 2001 and/or his work for the MTA.

I do not believe any permanent impairment or restrictions that he might have at the present time would relate to the previous work related injury of October 5, 2001.

(Ex. H, pp. 1-2)

II. THUMB CLAIM – 2002

Countryman also sustained injury on July 2, 2002, when he accidentally struck his left hand and thumb with an eight-pound sledgehammer. His current complaints include left thumb pain when gripping and at night, which he treats with a selfprescribed elastic bandage.

Dr. Kuhnlein’s report also addressed Countryman’s thumb injury, but does not support the contention that permanent disability resulted:

With respect to the left hand, the work incident with the sledgehammer was a substantial causal factor for the left hand contusion. The osteoarthritis of the left hand was not related to his Metro Transit Authority employment, nor was it exacerbated or aggravated.

(Ex. 38, p. 11)

CONCLUSIONS OF LAW

As claimant, Countryman carries the burden of proving by a preponderance of the evidence the injury is a proximate cause of the disability on which his 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).

With respect to the October 5, 2001 claim, all agree that Countryman injured his shoulder in a work incident, but dispute whether that injury caused temporary disability, permanent disability, or involved the lumbar spine.

Following the incident, Countryman missed two days of work, which does not meet the threshold requirement of four days established in Iowa Code section 85.32 unless the injury results in permanent partial disability. However, his claim here is for the period immediately following retirement: November 1, 2002 – October 13, 2003.

Countryman did not retire or otherwise stop working on medical advice. This claim is plausible only if it established that he was essentially forced to leave the MTA when he did because the pain was too great to bear. However, Countryman’s testimony to this effect is without any real credibility. He essentially predicted his retirement date to a physician months before the work injury, gave notice almost a full year in advance, had clearly been planning his retirement for years, and neither cited the work injury to his employer as the reason for leaving, nor asked for accommodation. Countryman’s burden of proof is not met on this issue.

Determination of whether the 2001 injury caused permanent disability preliminarily requires a determination on whether or not Countryman’s back sustained injury, or only his shoulder. Countryman has arthritis in his back and a long history of complaints. There is no doubt that he has painful symptoms. However, the weight of the evidence in this case does not support the contention that any resultant disability was caused by the traumatic work incident on October 5, 2001.

Countryman did not complain of a back injury at the time, or for months afterward. Opinions have been offered by two expert evaluators, Drs. Rondinelli and Kuhnlein. It is Dr. Rondinelli’s opinion that the traumatic incident on that date did not directly or substantially aggravate Countryman’s degenerative back condition, and is the only expert opinion to specifically address that issue. Dr. Kuhnlein thinks that work duties as a diesel mechanic were a substantial contributing factor in the development of chronic back pain, but is clearly speaking only of a cumulative effect, not a specific traumatic injury. Dr. Rondinelli offered an opinion limited specifically to the cumulative effects of Countryman’s last year of employment, which is hardly the test, and speaks not at all to cumulative trauma over a working lifetime at the MTA.

This give rise to a procedural issue: is a “cumulative” or “repetitive trauma” theory of injury properly at issue in this claim? The question is close. Although Countryman identified both claims as “traumatic” in nature at hearing, his petition filed September 4, 2003, claimed injury as follows: “Low back & left shoulder; pulling on heavy batteries & heavy repetitive work.” This clearly alleges a cumulative trauma theory, but the prehearing conference report filed on November 20, 2003, failed to identify the issue, as the appropriate “cumulative trauma” box was left unchecked. Nevertheless, the prehearing conference report also modified the “arising out of employment” issue by adding the handwritten words “as alleged by petition.” When Dr. Kuhnlein’s report of July 15, 2004 offered expert opinion clearly based on a cumulative trauma theory of injury, defendants were at least put on inquiry notice and cannot fairly claim surprise. Indeed, Dr. Rondinelli’s report predated Dr. Kuhnlein’s report, and included a response to counsel’s direct query on the same issue. “Cumulative trauma” is therefore properly at issue as a theory of injury.

Dr. Kuhnlein’s opinion, as noted, stands unrebutted. Dr. Rondinelli’s contrary opinion is specifically limited to the effects Countryman’s last year of employment, and is therefore of marginal value. Dr. Kuhnlein’s opinion is accepted: as a result of cumulative trauma in the course of his many years of employment by the MTA (and other factors, such as obesity), Countryman has chronic back pain and minor impairment. Dr. Kuhnlein recommends that he be able to alternate standing and walking and change positions as tolerated, and limit himself to occasional stooping and bending. (Ex. 38, p.63)

Defendants, however, contend that Countryman’s back claim is barred by an affirmative defense: failure of timely notice under Iowa Code section 85.23. However, defendants clearly had notice of injury, lacking only notice of the back claim. There is no requirement under Iowa law that an injured worked give notice of each and every possible element or affected part in a work injury. The defense is meritless.

On the other hand, the record does not support Countryman’s contention that he sustained permanent impairment from his shoulder injury. Dr. Kuhnlein’s opinion is premised on Countryman’s claim that the non-work incidents in fall 2003 did not worsen his symptoms, but Countryman is a suspect historian. The contrary view of Dr. Kenney is far more persuasive, based as it is on Dr. Kenney’s opportunity to serve and observe as treating physician at the time these events happened. Countryman does not meet his burden of establishing a permanent shoulder injury.