BERNARD V. POLK COUNTY

Page 1

before the iowa WORKERS’ COMPENSATION commissioner

______

:

WILLIAM BERNARD,:

:

Claimant,:

: File No. 5010452

vs.:

: ARBITRATION

POLK COUNTY,:

: DECISION

Employer,:

Self-Insured,:

Defendant.: HEAD NOTE NO.: 1803

______

STATEMENT OF THE CASE

This is a contested case proceeding in arbitration under Iowa Code chapters 85 and 17A. Claimant, William Bernard, sustained a stipulated work injury in the employ of self-insured defendant Polk County, Iowa, on August 1, 2003, and now claims benefits under the Iowa Workers’ Compensation Act. Other injury dates in Bernard’s petition were pled in the alternative and are now moot.

The claim was heard and fully submitted in Des Moines, Iowa, on January 24, 2005. The record consists of Bernard’s testimony, his exhibits 1-28, and Polk County’s exhibits A-G.

ISSUES

STIPULATIONS:

  1. Bernard sustained injury arising out of and in the course of employment on August 1, 2003.
  1. The injury caused both temporary and permanent disability.
  1. Bernard was off work during the time he claims as healing period (November23 – December 31, 2003 is disputed; January 1 – March 17, 2004 is undisputed).
  1. Permanent disability should be compensated by the industrial method (loss of earning capacity) commencing March 18, 2004.
  1. The correct rate of weekly compensation is $527.14.
  1. Entitlement to medical benefits is undisputed.
  1. Defendant should have credit for sick pay/disability benefits paid under Iowa Code section 85.38(2).

ISSUES FOR RESOLUTION:

  1. Extent of healing period.
  1. Extent of industrial disability.
  1. Whether penalty benefits should be assessed under Iowa Code section86.13.

FINDINGS OF FACT

William Bernard, age 54, is an ambidextrous high school graduate who later completed a two-year community college course in heating and air conditioning with receipt of HVAC certification. Bernard’s work history includes 12 years as a production worker in a meatpacking plant and employment as a custodian, maintenance worker and painter for Polk County, Iowa, where he began employment on October 19, 1983. Bernard became a county painter in approximately 1986 and was so employed on August 1, 2003.

Bernard sustained a stipulated neck injury on that date; his claim is based on a “cumulative trauma” theory of injury and a specific incident of trauma on July 31, 2003 incurred while manipulating a manhole cover at a senior citizen center. This resulted in neck pain described as sharp and throbbing. Previous incidents contributed to left shoulder pain.

Bernard’s job as a painter entailed significant physical demands. According to Polk County’s answer to an interrogatory propounded in this claim, the job required frequent bending, squatting, crawling, climbing, reaching above shoulder level, crouching, kneeling and twisting, frequent lifting to 34 pounds, occasional lifting to 100 pounds, and repetitive firm grasping with both hands. (Exhibit 24)

Bernard has a history of left shoulder problems dating to surgery in 1984 which resulted in work restrictions against lifting in excess of 30 pounds or working overhead. However, these restrictions were often not observed thereafter.

Bernard’s care has principally been managed by his family doctor, David Swieskowski, M.D. Dr. Swieskowski had been treating Bernard for some time prior to the work injury; for example on May 15, 2003, more than two months before the stipulated injury date, Dr. Swieskowski’s chart notes reflect an assessment of cervical disc disease particularly at C3-4 causing a chronic pain syndrome, and prescription of narcotic medications. (Ex. 1, p. 10) Bernard had also received cervical epidural steroid injections prior to the stipulated injury date. Dr. Swieskowski’s notes in evidence do not reflect any visits immediately following August 1, 2003. He has, however, continued to treat Bernard to date.

Until November 23, 2003, Bernard was able to work, but on or about that date suffered an unrelated “TIA,” or transient ischemic attack, and has not worked since.

Dr. Swieskowski’s report dated December 17, 2003, indicates that Bernard had been unable to work since November 23, 2003, and still was, and in support cited two diagnoses: TIA and work-related chronic neck pain secondary to degenerative joint disease. (Ex. 3, p. 28) No contrary expert opinion appears of record.

The balance of claimed healing period, January 1 – March 17, 2004, is not disputed, and the parties further agree that permanency benefits should commence on March 18, 2004. Dr. Swieskowski’s fill-in-the-blank report of December 15, 2004 reflects his view that Bernard is disabled not only from performing his normal occupation, but any occupation or profit, is permanently disabled, and able to return to work “never.” (Ex. 4, p. 29)

Dr. Swieskowski’s pessimistic view is largely shared by occupational physician John D. Kuhnlein, D.O., to whom Bernard presented at his own request for an independent medical evaluation on November 18, 2004. According to Dr. Kuhnlein, Bernard has a left shoulder strain and contusion, and degenerative cervical disc disease with subsequent chronic myofascial pain in the cervical and trapezius region. (Ex. 20, p. 49) Although Dr. Kuhnlein thought Bernard had four percent left shoulder impairment, he could not attribute this to any recent incident as opposed to the prior surgical repair.

Dr. Kuhnlein assigned an impairment rating of seven percent of the whole person. (Id, at 71-72), Dr. Kuhnlein also recommended strict work restrictions, including no more than 25 pounds lifting, rare crawling and use of ladders, occasional stopping, bending, kneeling and grasping, and some job-specific recommendations, such as scraping paint for no longer than 30 minutes at a time and limiting ceiling painting. (Id, at pp. 72-73) Dr.Kuhnlein was also concerned that Bernard’s pain medications could interfere with concentration and offered these comments with respect to potential future employment:

At this point, Mr. Bernard has been off work for quite some time for a variety of reasons, as discussed above. It is going to be difficult for him to return to work, as literature suggests that individuals that have been off work for five continuous months have less than a 50% chance of returning to the workplace. That said, I believe that he might be capable of returning to work with appropriate accommodations. I would suggest restrictions, as outlined in #9 below, as an initial point at which to attempt to return him to work. If he is unsuccessful, then I think that he would be considered permanently and totally disabled as a painter, although I would consider vocational rehabilitation if his return to work as a painter fails.

(Ex. 20, p. 71)

Dr. Kuhnlein did not recommend activity restrictions against sitting, standing or walking, and would limit use of the upper extremities only to “rare” above-the-shoulder work and thought work should be kept in front of the patient. (Ex. 20, pp. 21-22) Dr.Kuhnlein also recommended that gripping and grasping be limited to occasionally due to Bernard’s history of right carpal tunnel syndrome–a condition that is not part of the present claim based on the petition.

Neurosurgeon Thomas A. Carlstrom, M.D., evaluated Bernard at Polk County’s request on September 3, 2004, and found myofascial symptoms in the neck and left shoulder “healed . . . fairly well at this point,” and the patient ready to return to work without restriction and no further need of evaluation or treatment to the neck. (Ex. E)

Bernard also presented for evaluation at Polk County’s request to orthopedic surgeon Cassim M. Igram, M.D., on March 17, 2002. Dr. Igram thinks that the manhole cover incident in 2003 probably aggravated a preexisting condition which “should have resolved and brought him back to baseline . . . anywhere from three to six months’ time from the injury,” and that current symptoms were probably related to the underlying and chronic condition. (Ex. G, p. 31) Dr. Igram did not suggest an impairment rating or specific activity restrictions, but was concerned about Bernard’s use of narcotic pain medications and mused that while overhead activities might aggravate symptoms, “there are probably some aspects of his job description that do not require overhead activities” and “I suspect that accommodations could be made.” (Id) Dr. Igram does not cite any source with Polk County in support of this speculation.

CONCLUSIONS OF LAW

Healing period entitlement is governed by Iowa Code section 85.34(1). If a work injury causes permanent partial disability, healing period benefits are payable from the date of injury until the worker has returned to work, it is medically indicated that significant improvement is not anticipated, or the worker is medically capable of returning to employment substantially similar to that in which engaged at the time of injury, whichever first occurs. Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).

The imposition of a rating of permanent impairment is equivalent to an opinion that further significant improvement from the injury is not expected. Absent a showing that further improvement was expected, healing period ends when a permanent rating is given. Miller v. Hallett Materials, File no. 830840 (App. Dec. 1992). The persistence of pain does not prevent a finding that the healing period is over, provided the underlying condition is stable. Pitzer v. Rowley Interstate, 507 N.W.2d 389 (Iowa 1993). Stability is gauged in terms of industrial disability; if it is unlikely that further treatment of pain will decrease the extent of permanent industrial disability, continued pain management will not prolong healing period. Id. At 392.

The disputed healing period in this case is November 23 through December31, 2003; thereafter, healing period is stipulated. According to Dr. Swieskowski, Bernard was off work during the disputed time for two reasons: his work injury and an unrelated TIA. Dr.Kuhnlein notes that the TIA is not work-related, but offers no opinion as to whether or not the work injury kept Bernard off work during that month. No other expert opinion appears of record on that narrow issue. Since, according to Dr.Swieskowski, the work injury was a substantial factor in keeping Bernard off work, the disputed healing period is compensable. Bernard is entitled to healing period benefits from November 23, 2003 through March 17, 2004, or 16.429 weeks.

The parties agree that the work injury caused permanent disability, but dispute the extent. Permanent partial disability that is not limited to a scheduled member is compensated industrially under section 85.34(2)(u). Industrial disability compensates loss of earning capacity as determined by an evaluation of the injured employee’s functional impairment, age, intelligence, education, qualifications, experience and ability to engage in employment for which the employee is suited. Second Injury Fund of Iowav. Shank, 516 N.W.2d 808. 813 (Iowa 1994), Guyton v. Irving Jensen Co., 373 N.W.2d 101, 104 (Iowa 1985), Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 (1935).

The concept of industrial disability is quite similar to the element of tort damage known as loss of future earning capacity even though the outcome in tort is expressed in dollars rather than as a percentage of loss. The focus is on the ability of the worker to be gainfully employed and rests on comparison of what the injured worker could earn before the injury with what the same person can earn after the injury. Second Injury Fund of Iowa v. Nelson, 544 N.W.2d 258, 266 (Iowa 1995), Anthes v. Anthes, 258 Iowa 260, 270, 139 N.W.2d 201, 208 (1965).

Impairment of physical capacity creates an inference of lessened earning capacity. Changes in actual earnings are a factor to be considered but actual earnings are not synonymous with earning capacity. Bergquist v. MacKay Engines, Inc., 538 N.W.2d 655, 659 (Iowa App. 1995), Holmquist v. Volkswagen of America, Inc., 261 N.W.2d 516, 525, (Iowa App. 1977), 4 Larson’s Workers’ Compensation Law, Sections 57.21(a) and 57.31(a) (1997). The loss is not measured in a vacuum. Such personal characteristics as affect the worker’s employability are considered. Ehlinger v. State, 237 N.W.2d 784, 792 (Iowa 1976). Earning capacity is measured by the employee's own ability to compete in the labor market. An award is not to be reduced as a result of the employer’s largess or accommodations. U.S. West v. Overholser, 566 N.W.2d 873, 876 (Iowa 1997), Thilges v. Snap-On Tools Corp., 528 N.W.2d 614, 617 (Iowa 1995).

Total disability does not mean a state of absolute helplessness. Permanent total disability occurs where the injury wholly disables the employee from performing work that the employee’s experience, training, education, intelligence and physical capacities would otherwise permit the employee to perform. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The test has been further described by the agency as follows:

The focus for evaluating total disability is on the person’s ability to earn a living. Diederich v. Tri-City R. Co., 219 Iowa 587, 594, 258 N.W. 899, 902 (1935). The question is not whether the person is physically and mentally capable of working because virtually anyone who is conscious is capable of performing some type of work. The question is whether the person is capable of performing a sufficient quantity and quality of work that an employer in a well-established branch of the labor market would employ the person on a continuing basis and pay the person sufficient wages to permit the person to be self-supporting.

Tobin-Nichols v. Stacyville Community Nursing Home, File No. 1222209 (App. Dec.2003)

As noted, Bernard has not worked since November23, 2003. He is receiving short-term disability benefits which continue until January 2006, and is not currently motivated to work. He has not applied for a single job or inquired into other possible positions with Polk County, the largest county in Iowa and obviously an employer of many different skills.

Dr. Swieskowski, the treating physician, filled out a check-the-box form to indicate that Bernard is permanently disabled from any occupation or work, but the reasoning that leads him to that conclusion is unknown. Dr. Carlstrom’s opinion is so old as to be of marginal usefulness here. Dr. Igram’s opinion goes more to causation than the extent of disability, and is likewise of marginal use here. Dr. Kuhnlein offers a reasoned and complete set of recommended activity restrictions and comments concerning potential future employment, and his opinion is accepted as the most persuasive of record.

Those restrictions do not correlate with employment as a professional painter; while Bernard could doubtless do some of the work, he cannot realistically do it allespecially working over shoulder level. Bernard recognizes this, but agrees that he could do appropriate “desk” jobs, such as a painting co-coordinator. Bernard clearly has capabilities, as he boasts a high school diploma and an HVAC certification, and has experience as a production worker and custodian.

Based on these factors, Bernard has not established that he is permanently and totally disabled, although it is certainly a plausible argument that he is. Considering the factors of industrial disability outlined above, it is found that, by reason of the subject work injury, William Bernard has sustained loss of earning capacity on the order of 60percent of the body as a whole, or the equivalent of 300 weeks of permanent partial disability under Iowa Code section 85.34(2)(u).

Bernard also claims entitlement to penalty benefits. Iowa Code section 86.13 permits an award of up to 50 percent of the amount of weekly benefits delayed or denied if a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse. The standard for evaluating the reasonableness of delay in commencement or termination is whether the claim is fairly debatable. Where a claim is shown to be fairly debatable, defendant does not act unreasonably in denying or delaying payment. In the absence of a reasonable excuse for delay in payment of benefits, penalty benefits are mandatory. Robbennolt v. Snap-On Tools Corp., 555 N.W.2d 229 (Iowa 1996). In determining the amount of penalty, the commissioner should consider such factors as the length of the delay, the number of delays, the information available to the employer regarding the employee’s injuries and wages, and prior penalties imposed against the employer under section 86.13. Id. A reasonable cause or excuse exists if either (1) the delay was necessary for the insurer to investigate the claim or (2) the employer had a reasonable (“fairly debatable”) basis to contest entitlement to benefits. Christensen v. SnapOn Tools Corp., 554 N.W.2d 254 (Iowa 1996).

Bernard first missed work for two conditions, his back and a TIA, but it seems clear the TIA was the primary moving factor. Dr. Carlstrom, a highly qualified orthopedic surgeon, thought him Bernard able to work in September 2002, which is before the injury date stipulated in this litigation, but after the first of four alternate dates pled. Dr. Igram subsequently opined that Bernard “should have” recovered from the work injury and had no resulting permanency. Given all this, it is held that liability in this claim was fairly debatable and no penalty benefits are in order.

ORDER

THEREFORE, IT IS ORDERED:

Defendant shall pay sixteen point four two nine (16.429) weeks of healing period benefits at the rate of five hundred twenty-seven and 14/100 dollars ($527.14) commencing November 23, 2003.

Defendant shall pay three hundred (300) weeks of permanent partial disability benefits at the rate of five hundred twenty-seven and 14/100 dollars ($527.14) commencing March 18, 2004.

Accrued weekly benefits shall be paid in a lump sum together with statutory interest.

Defendant shall have credit for benefits paid under Iowa Code section 85.38(2).

Defendant shall file subsequent reports of injury as required by this agency.

Costs are taxed to defendant.

Signed and filed this ____22nd______day of March, 2005.

______
DAVID RASEY
DEPUTY WORKERS’
COMPENSATION COMMISSIONER

Copies to:

Mr. Martin Ozga

Attorney at Law

6611 University Ave., Unit 200

Des Moines, IA 50311-1655

Mr. Michael B. O’Meara

Attorney at Law

111 Court Ave., Ste. 340

Des Moines, IA 50309-2214

DRR/smc