ABBOTT V. CAMBREX CHARLES CITY, INC.
Page 1
BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______
:
RANDY ABBOTT, :
:
Claimant, :
:
vs. :
: File No. 5009327
CAMBREX CHARLES CITY, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
ZURICH AMERICAN INSURANCE, :
:
Insurance Carrier, : HEAD NOTE NO.: 1803
Defendants. :
______
STATEMENT OF THE CASE
This is a contested case proceeding in arbitration under Iowa Code chapters 85 and 17A. Claimant, Randy Abbott, sustained a stipulated work injury in the employ of defendant Cambrex Charles City, Inc. (“Cambrex”) on February 17, 2002, and now claims benefits under the Iowa Workers’ Compensation Act from that employer and its insurance carrier, Zurich American Insurance.
The claim was heard and fully submitted in Des Moines, Iowa, on October 18, 2004. The record consists of Abbott’s exhibits A-I, defendants’ exhibits A-H, and the testimony of Abbott, Joseph Nettleton, Kelly Abbott and Larry Kennedy. For the sake of convenience, defendants’ exhibits have been remarked as exhibits 1-8, and will be identified by number rather than letter.
ISSUES
STIPULATIONS:
- Abbott sustained injury arising out of and in the course of employment on February 17, 2002.
- Abbott does not claim entitlement to temporary disability.
- The correct rate of weekly compensation is $509.56.
- If called, providers of disputed medical treatment would testify that the treatment was reasonable and necessary; the treatment is causally connected to the conditions upon which Abbott bases his claim. Defendants offer no contrary proof.
ISSUES FOR RESOLUTION:
- Whether the work injury caused permanent disability.
- Nature, extent and commencement date of permanent disability.
- Entitlement to medical benefits.
FINDINGS OF FACT
Randy Abbot, age 46, has twice been employed by pharmaceutical manufacturer Cambrex Charles City, the first time beginning in approximately 1997. On February 17, 2002, Abbott was working a production job as a dryer operator, but also handled a number of other responsibilities, including work in the Cambrex wastewater plant. On that date, Abbott was assigned to take meter readings in the wastewater plant following reports of a strong, unfamiliar odor. Abbott’s readings confirmed that an unknown substance was present, but the device was apparently not designed to identify the substance. Cambrex agrees that Abbott was exposed to something, but it is impossible to retrospectively determine exactly what it was-possibly amphetamine, arsenic, nicotine, one of several strong acids, or yet another undetermined substance. Complicating matters, the exhaust fan serving the influent basin for the wastewater facility was out of order and totally inoperative. (Exhibit D, page 15)
Later in the shift, Abbott and two other workers, Larry Bohner and Mike Hruska, began to experience coordination problems, headache and elevated blood pressure, and were sent to the plant nurse. Both were kept at the plant for the rest of the shift, but off duty and under observation. According to the company nurse, Kimberly Joerger, Abbott spent the time “sitting and stewing.” (Ex. G, p. 22) While showering at the plant following his shift, Abbott noticed some leakage of blood from his left ear. Joerger, who testified by deposition on September 29, 2004, saw no need to immediately send the men for medical care.
Cambrex nursing records of February 19, two days later, reflect that Abbott saw the company doctor and was “feeling 100% better.” (Ex. G, p. 69) However, later that same day he reported burning in the chest area. (Ex. A, p. 29) In any event, Abbott reports that during the next week, although no time was lost from work, he experienced sleep disturbance and some weakness and dizziness. Abbott’s condition thereafter improved, and the company doctor, Paul H. Royer, M.D., released him to work without restriction on February 20, 2002. (Ex. A, p. 30)
Abbott, however, currently has complaints he relates to the exposure in February2002. He continued working for Cambrex without lost time until he was laid off in September 2002. After a period of unemployment, he took work with a construction contractor (his work history is mostly as a heavy equipment operator), but was recalled to work at Cambrex in December 2003. He worked at Cambrex until April2004 but resigned to return to construction work, and remains so employed at present. A factor in his decision to leave Cambrex was the requirement that he frequently wear an uncomfortable respirator to avoid potential chemical exposures. It is noted that Abbott accepted a 29 percent hourly wage cut from $19.75 to $14.00 in leaving Cambrex for construction work.
According to Larry Kennedy, Cambrex’s production supervisor and Abbott’s direct supervisor, Abbott was the most competent of three dryer operators and was trusted to train new employees. Clearly, Abbott’s exposure in March 2002 did not affect his job performance.
Abbott currently complains of chest pain and numbness, sometimes severe, headaches, intermittent racing pulse, blurred vision with “black spots,” progressive memory loss and cognitive problems, such as with mathematics required in his current job operating a road grader. He believes his symptoms have worsened since a physical examination accomplished in March 2003.
Abbott has undergone significant medical studies and evaluations, mostly with negative results. In November 2003, internal medicine specialist Nyle Kauffman, M.D., administered spirometry studies, which suggested mild restrictive disease but normal diffusion capacity in the lungs. (Ex. A, p. 6) In a report dated February 2, 2004, Dr.Kauffman wrote:
Randy’s specific diagnosis is acute workplace exposure to unknown substance with acute irritant effects manifested by cough and chest discomfort and acute intoxication symptoms manifested by weakness, clumsiness, and restless and agitated feelings.
(Ex. A, p. 10)
Dr. Kauffman concluded that Abbott’s symptoms were related to the workplace exposure, but did not recommend further evaluation. Dr. Kauffman further noted that Abbott’s subjective complaints of memory loss were not substantiated by psychological testing, but concluded that by the patient’s history, he had some regression of memory “which is an impairment but I can’t quatitate [sic] it.” (Ex. A, p. 10) Dr. Kauffman did not recommend activity restrictions other than avoidance of exposure to chemicals in the future. (Id) Dr. Kauffman subsequently rated impairment in the range of five to ten percent of the whole person due to “clinical dementia.” (Ex. A, p. 13) It is not clear that evaluation of impairment due to dementia is entirely within Dr. Kauffman’s expertise as an internal medicine specialist.
Dr. Kauffman also referred Abbott for psychological evaluation to clinical psychologist Frank S. Gersh, Ph.D., who saw the patient twice in November 2003 and authored a report dated December 2, 2003. Dr. Gersh found Abbott with intellectual function in the bright normal range with no evidence of memory deficit, visual discrimination, concentration or other cognitive deficits. (Ex. A, p. 23) Dr. Gersh also administered the Minnesota Multiphasic Personality Inventory, which generated a valid profile indicating psychological distress with high levels of somatic concern, anxiety and rumination. Patients with this profile “tend to react to stress with physiological complaints.” (Ex. A, p. 24) Dr. Gersh concluded:
The above personality results are typically found in psychiatric patients presenting for psychiatric treatment. The fact that Mr. Abbott may have genuine medical problems secondary to a chemical exposure may alter the conclusions to be drawn from the MMPI-2. If, indeed, he has been exposed to toxic chemicals that have effected [sic] him medically, then it is possible that many of his physiological complaints are related to that chemical exposure and not to a tendency to somaticize or develop somatic complaints under stress.
(Ex. A, p. 24)
Dr. Gersh’s recommendations included treatment for anxiety and avoidance of further chemical exposure. Dr. Gersh clarified his opinion relative possible causation in deposition testimony given October 4, 2004:
Q. After reviewing the materials that you were provided and conducting your interview of Mr. Abbott and conducting the standardized testing that you describe on page 3 and 4, what impression did you have of Mr. Abbott?
A. That he had an anxiety disorder of some kind and that I could find no evidence that he had any brain dysfunction that might be attributed to a chemical exposure.
(Ex. 7, p. 11)
Q. . . . if he actually has been exposed to chemicals, then his problem may not be psychological but rather is related to those chemicals?
A. Right. Some chemicals can cause anxiety and depression.
Q. And, in fact, I think you said earlier that if you assume that he has been exposed to chemicals, then you would conclude that those chemicals are the cause of his problems.
A. Right.
(Ex. 7, pp. 33-34)
Dr. Gersh specified that chemical exposure can cause an anxiety disorder, but could not say with certainty that exposure caused Abbott’s anxiety disorder without knowing and looking up the chemicals to which Abbott was exposed. (Ex. 7, pp. 36-37)
Dr. Gersh recommended medical treatment for anxiety, and testified that an anxiety disorder itself can interfere with memory. (Ex. 7, pp. 12, 16) His testing revealed no evidence for “faking good, faking bad, or defensiveness.” (Ex. 7, p. 22) Prior to the deposition, he had not attempted to rate permanent impairment, but offered no disagreement with the rating previously given by Dr. Kauffman. Dr. Gersh also agreed that memory loss can potentially interfere with job performance and safety. (Ex.7, pp. 24-25)
Pulmonologist Gregory A. Hicklin, M.D., evaluated Abbott on April 6, 2004, and authored a report the same date. Dr. Hicklin thought the restrictive physiology identified by Dr. Kauffman was due to body habitus, i.e., slight obesity and lack of inspiratory effort, possibly contributed to by chest pain or unidentifiable neuromuscular weakness. Dr. Hicklin saw no evidence of lung or respiratory disease. (Ex. A, p. 35)
CONCLUSIONS OF LAW
The parties agree that Abbott was exposed to an unknown substance and thereby sustained injury arising out of and in the course of employment. They dispute, however, whether that exposure caused permanent disability to the body as a whole. As claimant herein, Abbott has 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).
There is no objective evidence of memory loss or other physical damage to Abbott’s brain, notwithstanding that he and his wife credibly feel that memory loss exists. Neither is there objective evidence of other physical impairment. Dr. Gersh, however, thinks that Abbott has developed an anxiety disorder, which he clearly thinks was caused by the trauma of his chemical exposure even though certainty cannot be expressed absent identification of the causative substance. However, it is not necessary to identify the substance to conclude that exposure caused psychological damage. Although Abbott may have some psychological predisposition to anxiety, his development of an actual anxiety disorder is inextricably tied up with the events of February 17, 2002. Dr. Kauffman felt able to rate impairment based on mental injury, even though his expertise may not lend itself well to that rating. Dr. Gersh, given the opportunity, offered no dissent. Abbott had no such problems prior to exposure and now, some three years later, he still does.
Even if Abbott’s sense of memory loss is purely psychosomatic–and it may not be, according to Dr. Gersh–it is real to him and convinces a clinical psychologist and an internal medicine specialist to conclude that impairment exists. In addition, Abbott now carries a medical restriction against future chemical exposures, which in part explains his decision to leave Cambrex for a lower-paying job. On balance, Abbott has sustained his burden of establishing a causal nexus between his work injury and the existence of permanent impairment to the psyche.
The parties have stipulated the permanency should be compensated by the industrial method. The amount of compensation awarded for unscheduled injuries depends upon the extent of the industrial disability resulting from the injury.Mortimer v. Fruehauf Corp., 502 N.W.2d 12, 15 (Iowa 1993). Industrial disability measures an injured worker's lost earning capacity.Myers v. F.C.A. Servs., Inc., 592 N.W.2d 354, 356 (Iowa 1999). In assessing whether a claimant has sustained a loss of earning capacity, the workers' compensation commissioner is required to consider all "factors that bear on [the claimant's] actual employability."Second Injury Fund v. Hodgins, 461 N.W.2d 454, 456 (Iowa 1990) (quoting Guyton v. Irving Jensen Co., 373 N.W.2d 101, 104 (Iowa 1985)). These factors include not only the claimant's functional disability, but also his age, education, qualifications, experience, and ability to engage in similar employment. Myers, at 356. The commissioner's primary focus in the determination of industrial disability is therefore on the ability of the worker to be gainfully employed.
Although Abbott and his wife think he may have short-term memory deficits, more rigorous psychological and mental testing has failed to confirm that subjective view. Abbott does, however, experience a continuing anxiety disorder that may well have negative impact on future employment, and now has a professional restriction against future chemical exposure that was a factor in his decision to leave Cambrex for less remunerative employment. Considering all factors of industrial disability as outlined above, it is concluded that, by reason of the work injury of February 17, 2002, Randy Abbott has experienced loss of earning capacity on the order of ten percent of the body as a whole, or the equivalent of 50 weeks of permanent partial disability. Absent compensable healing period, benefits accrue from the date of injury.
Entitlement to medical benefits remains in dispute. Under Iowa law, the employer must furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers’ compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury or the worker has sought and received authorization from this agency for alternate medical care. Freels v. Archer Daniels Midland Co., File No. 1151214 (App. Dec. 2000). Defendants cannot admit injury arising out of and in the course of employment and claim the right to control medical treatment, but at the same time deny that the disabling condition is causally connected to the injury and therefore they are not liable for the disability. Trade Professionals, Inc. and Virginia Surety v. Shriver, File No. 17/02-0409 (Iowa May 7, 2003).
Claimant is entitled to an order of reimbursement only if he has paid treatment costs; otherwise, to an order directing the responsible defendants to make payments directly to the provider. See, Krohn v. State, 420 N.W.2d 463 (Iowa 1988). Defendants should also pay any lawful late payment fees imposed by providers. Laughlin v. IBP, Inc., File No. 1020226 (App. Dec. 1995).
Where an employer does not exercise its right to choose the medical care under Iowa Code section 85.27, the employer may be held to have acquiesced in claimant’s choice of physician. Munden v. Iowa Steel & Wire, 33 Biennial Report of the Iowa Industrial Commissioner 99 (Arb. Dec. September 12, 1977). Harker v. IBP, Inc., File No. 1169917 (App. Dec. 1999).
The fighting issue relative medical benefits is causation, which has been decided in Abbott’s favor. He is entitled to payment of the disputed medical costs.
ORDER
THEREFORE, IT IS ORDERED:
Defendants shall pay fifty (50) weeks of permanent partial disability benefits at the rate of five hundred nine and 56/100 dollars ($509.56) commencing February 17, 2002.
Accrued weekly benefits shall be paid in a lump sum together with statutory interest.
Defendants shall pay disputed medical treatment as attached to the hearing report.
Defendants shall file subsequent reports of injury as required by this agency.
Costs are taxed to defendants.
Signed and filed this ____25TH______day of February, 2005.
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DAVID RASEY
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
Copies to:
Mr. Aaron R. Murphy
Attorney at Law
515 State St.
Osage, IA 50461-1249
Ms. Stephanie Glenn Techau
Attorney at Law
700 Walnut St., Ste. 1600
Des Moines, IA 50309-3800
DRR/smc