FLORES V. TYSON FRESH MEATS, INC.

Page 11

BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER

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:

LUZ FLORES, Widow and Surviving :

Spouse of RAFAEL FLORES, :

:

Claimant, : File Nos. 5036938 & 5034226

:

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

:

TYSON FOODS, INC., : D E C I S I O N

:

Employer, :

SelfInsured, :

Defendant. : Head Note No.: 1803

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STATEMENT OF THE CASE

Luz M. Flores, Administrator of the Estate of Rafael Flores Pineda, seeks workers’ compensation benefits from defendant, Tyson Foods, Inc., a self-insured employer, as a result of alleged injuries on April 15, 2010 and April 21, 2011. Presiding in this matter is Larry P. Walshire, a deputy Iowa Workers’ Compensation Commissioner. An oral evidentiary hearing commenced on May 16, 2012, but the matter was not fully submitted until the receipt of the parties’ briefs and argument on May 23, 2012. Oral testimony and written exhibits received into evidence at hearing are set forth in the hearing transcript.

This proceeding was initiated by claimant, Rafael Flores Pineda a/k/a Rafael Flores, but he died prior to hearing on April 4, 2012. Prior to and during the hearing on May 16, 2012, I granted unopposed motions by Rafael’s surviving spouse and administrator of the Estate of her husband to substitute the Estate as party claimant to these proceedings and to consolidate these two claims for hearing and decision.

Claimant’s exhibits were marked numerically. Defendant offered no separate exhibits. References in this decision to page numbers of an exhibit shall be made by citing the exhibit number followed by a dash and then the page number(s). For example, a citation to claimant’s exhibit 1, pages 2 through 4 will be cited as, “Ex 1-2:4.”

The parties agreed to the following matters in a written hearing report submitted at hearing:


File No. 5034226 (Right Leg Claim):

  1. On April 15, 2010, Rafael Flores received an injury arising out of and in the course of employment with Tyson Foods, Inc.
  2. Claimant is not seeking temporary total or healing period benefits.
  3. The injury is a cause of some degree of permanent scheduled member disability to the right leg.
  4. Permanent partial disability benefits commence on August 16, 2010.
  5. At the time of the injury, claimant's gross rate of weekly compensation was $511.01. Also, at that time, he was married and entitled to three exemptions for income tax purposes. Therefore, claimant’s weekly rate of compensation is $363.34 according to the workers’ compensation commissioner’s published rate booklet for this injury.
  6. Medical benefits are not in dispute.
  7. Prior to hearing, defendant voluntarily paid 55 weeks of permanent disability benefits at the stipulated weekly rate for this work injury.

File No. 5036938 (Bilateral Shoulder Claim):

  1. On April 21, 2011, Rafael Flores received an injury arising out of and in the course of employment with Tyson Foods, Inc.
  2. Claimant is not seeking temporary total or healing period benefits.
  3. If the injury is found to be a cause of permanent disability, the disability is an industrial disability.
  4. If I award permanent partial disability benefits, they shall begin on April 21, 2011.
  5. At the time of the injury, claimant's gross rate of weekly compensation was $554.95. Also, at that time, he was married and entitled to three exemptions for income tax purposes. Therefore, claimant’s weekly rate of compensation is $387.55 according to the workers’ compensation commissioner’s published rate booklet for this injury.
  6. Medical benefits are not in dispute.


ISSUE

The only issue submitted for determination in the two claims is the extent of claimant’s entitlement to permanent disability benefits prior to the death of Rafael Flores.

FINDINGS OF FACT

In these findings, I will refer to Rafael Flores by his first name, Rafael, and to the defendant employer as Tyson.

From my observation of his demeanor at hearing including body movements, vocal characteristics, eye contact and facial mannerisms while testifying in addition to consideration of the other evidence, I found Rafael’s son, Esau, credible.

Rafael, age 54 at the time of his death, worked for Tyson as a production laborer at its meat processing facility in Waterloo from November 2, 2009 until his death on April 4, 2012. Claimant is seeking permanency benefits as a result of the two stipulated work injuries to the right knee and both shoulders. Rafael had steady employment prior to starting at Tyson. (Exhibit 13-5:6) Rafael was an immigrant from El Salvador. He had only an eighth grade education and spoke very little English.

File No. 5034226 (Right Knee Claim)

On April 15, 2010, Rafael reported knee pain following a slip and fall injury that caused him to twist his right knee. (Ex. 2-1) A May 7, 2010 initial evaluation at Allen Occupational Health resulted in a diagnosis of right knee strain. (Ex. 4-4) An MRI obtained on June 15, 2010 revealed an extensive tear of the lateral meniscus with displaced meniscal fragment. (Ex. 3-1) The study also revealed findings compatible with synovial osteochondromatosis and a large Baker cyst. Id.

Due to the MRI findings, Rafael was referred on to Todd Johnston, M.D., an orthopedic specialist at Cedar Valley Orthopedics in Waterloo. Dr. Johnston examined Rafael on June 22, 2010. (Ex. 5-1:2) Dr. Johnston recommended arthroscopic surgery. Id. Dr. Johnston also advised that, although he would not normally treat a Baker’s cyst, given that he will already be performing the scope procedure, he would attempt to aspirate the cyst. Id.

Dr. Johnston performed a right knee arthroscopic lateral meniscectomy, subtotal medial meniscectomy, chondroplasty and aspiration of Baker cyst on July 27, 2010 (Ex. 3-2:3) On February 3, 2011, Dr. Johnston pronounced Rafael at maximum medical improvement (MMI) and assigned a permanent restriction of standing four hours, seated one hour, standing three hours. (Ex. 5-16:17) On March 22, 2011, Dr. Johnston opined that Rafael suffered a complete obliteration of joint space and impairment due to arthritis and provided a permanent partial impairment rating under the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, of 50 percent to the lower extremity. (Ex. 5-18) However, he qualified this as follows:

It becomes difficult to ascertain now much of this was a pre-existing problem versus an acute onset problem. I did see the patient two months after his symptoms began and he is fairly explicit that he had no symptoms his knee prior to his fall at work. It is therefore my belief that his current impairment due to arthritis in the knee is a combination of a preexisting problem, which was exacerbated significantly by an on-the-job injury. In accordance with this I am apportioning 50% of the whole body impairment rating to pre-existing conditions and 50% to the acute on-the-job injury.

(Ex. 5-19)

Subsequently, Dr. Johnston recommended a right knee replacement which he attributed to the work injury. Dr. Johnston performed right total knee arthroplasty on July 13, 2011. (Ex. 3-4) At a follow-up examination on October 14, 2011, Dr. Johnston noted that Rafael demonstrated clinically with a great result. (Ex. 5-27) He walked with a non-antalgic gait, was able to squat and rise out of a chair without difficulty. Id. He had full extension and flexed beyond 120 degrees. Id. Dr. Johnston pronounced Rafael at MMI at that appointment and advised Rafael could go back to full duty. Id.

In a report dated April 19, 2011, F. Manshadi, M.D., a physiatrist and pain management specialist, reported that he evaluated Raphael’s right knee condition. From his examination and review of past records, Dr. Manshadi opined that due to continuing symptoms and loss of function, Raphael suffered only a 15 percent permanent partial impairment to the right lower extremity under the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition. However, he also recommended permanent restrictions. He disagreed that any of the impairment should be attributed to pre-existing arthritis. (Ex. 11-1:4)

On November 23, 2011, Rafael returned to Dr. Johnston with complaints of knee pain. (Ex. 5-30) Dr. Johnston diagnosed Rafael with quad tendinosis and recommended physical therapy, temporary restrictions, and also performed a steroid injection to the knee. (Ex. 5-30:31) At a follow-up appointment on February 23, 2012, Rafael continued to complain of pain. (Ex. 5-32) Dr. Johnston was suspicious of a partial quad tendon tear and recommended an MRI. On March 5, 2012, Rafael returned to Dr. Johnston’s office to review the findings of the MRI. A tear was not able to be visualized due to “artifact from implant.” (Ex. 5-33) Dr. Johnston recommended additional surgery to address the tendon issue. (Ex. 5-33:35) However, Rafael died before the date of the scheduled procedure. (Hearing Testimony of Esau Rafael) The record does not contain any reevaluation by Dr. Johnston of Raphael’s impairment rating as a result of the total knee replacement.

In a second evaluation of the right knee by Dr. Manshadi on February 28, 2012, the doctor found continued difficulty using the knee going up and down steps, climbing ladders, and kneeling due to pain. He opined that given a good result from his right total knee replacement, he increased his permanent impairment rating to 37 percent to the right lower extremity. He again also recommended permanent restrictions to avoid crawling, ladders, prolonged standing and walking, slippery surfaces, squatting and kneeling on the right side. He again disagreed with any apportionment of his rating due to pre-existing arthritis because Rafael had no issues or problems prior to the work injury. (Ex. 11-9)

Rafael’s son, Esau, testified that despite his medical treatment and surgeries, Raphael continued to have difficulties with his right knee until his death. He stated that his father had constant swelling and pain and this significantly impacted his everyday activities.

Although Rafael was scheduled for additional surgery for a possible tendon problem, he did achieve MMI from his original surgery and total knee replacement prior to his death. Whether or not he had an additional and treatable condition in the knee was never determined as the surgery to explore this condition was not performed. In any event, the parties agreed as stated earlier that the stipulated work injury was a cause of some amount of permanent scheduled member disability to the right leg.

I do not find convincing the rating of Dr. Johnston. First, he did not rate the knee after his last surgery which should have impacted the prior rating. However, mostly I disagree with his apportionment given the fact that Raphael had no problems before this work injury. It was only after the work injury exacerbation that Raphael had difficulties and impairment. Also, Dr. Manshadi provided a rating based on a good result from the total knee surgery. It is clear that he did not have a good result given his continued pain and swelling. Given the extensive restrictions recommended by Dr. Manshadi and testimony of the son as to his actual loss of use, I find that the work injury of April 15, 2010 was a cause of a 50 percent permanent loss of use to the right leg prior to his death.

File No. 5036938 (Bilateral Shoulder Claim)

On April 21, 2011, Rafael reported to Tyson’s Health Services Department with pain in his bilateral upper extremities which he related to repetitive pushing while performing the job of Roll Blade Meat. (Ex. 2-2) According to the Injury/Illness Information Report, Rafael would use his left hand to grab product and his right hand to hold his knife and cut product. Id.

Rafael was initially evaluated by Gregory Clem, M.D., on May 17, 2011 and assessed with bilateral shoulder pain, elbow pain and neuropraxia of both hands. (Ex 7-1) At a return appointment on June 15, 2011 conducted by Robert Gordon, M.D., Dr. Gordon noted tenderness of the bilateral trapezii. (Ex 7-3) However, Rafael also exhibited full range of motion and strength of the bilateral shoulders. Id. Dr. Gordon recommended Rafael’s continued use of prednisone for six days, then switch to Lodine for two weeks. Id. Dr. Gordon also recommended Rafael to continue with the three remaining physical therapy sessions and continue with “alternate duty from today, that being 6/15/11 until 6/27/11, with no gripping, pinching, pushing or pulling, or reaching above shoulders bilaterally. As of June 27, 2011, he may be work progressed back to his full duty.” Id. Dr. Gordon released him from care at MMI with zero percent impairment at the June 15, 2011 appointment. (Ex 7-3:4)

On August 9, 2011, Rafael was seen by Dr. Clem with ongoing shoulder pain complaints. (Ex. 7-5) Dr. Clem assessed Rafael with bilateral shoulder and trapezii strain. Id. After a series of follow-up appointments, an EMG of the bilateral upper extremities and MRI of the bilateral shoulders were ordered. The EMG was conducted by Brian Sires, M.D., on December 8, 2011. (Ex. 8) The EMG came back normal. (Ex. 8-1) However, Dr. Sires did make note of a small mass “that feels like a lipoma in the area of the inferior aspect of the right deltoid.” Id. Pressure over the area reproduced some local pain. Id. MRIs of the right and left shoulder were conducted on December 7, 2011 and December 8, 2011 respectively. MRI of the right shoulder revealed tendinopathy of the supraspinatus tendon with encroachment of the supraspinatus tendon by the acromion; fluid in the subacromial/subdeltoid bursa; and subscapularis encroachment at the coracohumeral interval. (Ex. 6) MRI of the left shoulder revealed bursal sided partial thickness tear of the supraspinatus tendon at the humeral insertion, SLAP tear and bursitis. Id. On February 2, 2012, at a return appointment with Dr. Gordon, Rafael reported ongoing pain to his right shoulder. (Ex. 7-16) Otherwise, Dr. Gordon noted no functional range of motion issues with Rafael’s right shoulder. Id. Concerning the left shoulder, Rafael reported that “his left shoulder overall is doing well.” Id. Dr. Gordon recommended a work hardening program consisting of no lifting over ten pounds with the right upper extremity through February 19, 2012. Id. As of February 20, 2012, Dr. Gordon advised he could return without restriction. Id. Dr. Gordon also provided zero percent permanent impairment. (Ex. 7-16:17)