FISHER, KARLA V PARKER-HANNIFIN
FISHER V. PARKER-HANNIFAN CORPORATION
Page 1
before the iowa WORKERS’ COMPENSATION commissioner
______
:
KARLA K. FISHER,:
:
Claimant,:
: File No. 5007954
vs.:
: ARBITRATION
PARKER-HANNIFIN CORPORATION,:
: DECISION
Employer,:
Self-Insured,:
Defendant.: HEAD NOTE NO.: 1400
______
STATEMENT OF THE CASE
This is a contested case proceeding in arbitration under Iowa Code chapters 85 and 17A. Claimant, Karla Fisher, sustained a stipulated work injury in the employ of self-insured defendant Parker-Hannifin Corporation on March 9, 2001. She accordingly now seeks benefits under the Iowa Workers’ Compensation Act.
The claim was heard and fully submitted in Cedar Rapids, Iowa, on December 8, 2004. The record consists of Fisher’s exhibits 1 and 3-20 (Exhibit 2 was excluded), defendant’s exhibits A-G, and the testimony of Karla Fisher, Terry Fisher, Pammijo Miller, Steve Point and Brian Odean. However, under Iowa Code section 86.11, Fisher’s exhibit 1 (defendants’ first report of injury) was erroneously received over defendants’ objection. That ruling is hereby vacated and exhibit 1 is excluded.
ISSUES
STIPULATIONS:
1. Fisher sustained injury arising out of and in the course of employment on March 9, 2001.
2. The injury caused temporary disability.
3. Permanent disability, if any, should commence on April 9, 2001.
4. The correct rate of weekly compensation is $382.80.
5. Disputed medical treatment and associated costs are reasonable and necessary.
6. Defendant should have credit for benefits paid.
ISSUES FOR RESOLUTION:
1. Extent of temporary disability.
2. Whether the injury caused permanent disability.
3. Nature and extent of permanent disability.
4. Entitlement to medical benefits.
FINDINGS OF FACT
Karla Fisher, age 53, worked as a material handler for construction company Parker-Hannifin on March 9, 2001. While pulling parts from a storage bin on that date, Fisher sustained injury when she fell off a stepstool into a row of steel rods. She fractured her eighth and ninth ribs in the fall and was hospitalized for four days and off work for some 4.429 weeks, until April 9, 2001.
The extent of Fisher’s injuries is disputed. Fisher claims to have sustained injury to her knee resulting in medical treatment (but no permanent disability) and a low back injury.
Following the injury, Fisher was strapped to a backboard and taken to St. Luke’s Hospital emergency room. Ambulance notes reflect complaints of thoracic (flank/rib cage) pain and sternum pain. (Exhibit 3) Emergency room chart notes reflect complaints of “back pain,” but are not specific as to the area or areas involved. (Ex. 4) Both thoracic and lumbar spine films were taken, indicating some concern for that area, although Fisher had no low back discomfort to palpation. (Ex. A, p. 4) Following her return to work, Fisher presented again with the following history:
Patient states she was off work until 3/9/2001 [sic]. At that time, she did return back to work and worked full 8-hour days on the 9th and 10th. Then she went to work on Wednesday, 4/11/2001, and stated that she could only work 2 hours because pain symptoms were so bad in her low back. . . . Patient points to pain along bilateral lumbosacral paraspinals but especially over the sacroiliac joint bilaterally.
. . . .
She reports at this time she has difficulty being in any one position for longer than approximately 15 minutes. She notes difficulty trying to bend down to pick up objects from lower surfaces. She notes pain whenever she coughs or laughs and reports that she has to move slowly with transfers sit to/from stand or with rolling supine to sit, which as mentioned has been a problem for her for the last 5 weeks.
(Ex. 5, pp. 1-2)
The same chart notes summarize Fisher’s relatively minor history of preexisting back complaints:
Patient reports in 1995 she also fell and cracked her tailbone while she was working in a different job. She states that she did have physical therapy back then and was off work and pain symptoms resolved within approximately 2 months. Since then, she has not had any problems with her low back.
(Ex. 5, p. 1)
However, an MRI scan accomplished on April 17, 1996, revealed a mild posterior bulge with slight effacement of the ventral thecal sac at L4-5 and a small paracentral posterior disc protrusion at L5-S1 with mild asymmetric narrowing at that level. (Ex. A, p. 7)
According to Fisher and her husband, Terry Fisher, she had significant bruising in both the low back and the rib cage area. On April 12, 2001, authorized treating physician Timothy R. Winters, M.D., (who had previously released her to return to light duty work effective April 9), recorded an impression of sacroilitis and mechanical low back pain “likely secondary to her fall and altered mechanics.” (Ex. 6, p. 2) On April 30, Dr. Winters noted complaints of pain down the right leg to the back of the knee in an L5 S1 distribution and thereupon ordered an MRI study. (Id)
On May 7, 2001, a lumbar MRI scan disclosed disc protrusion at L5-S1 with effacement of the thecal sac and mild posterior displacing of the right S1 nerve root, and mild bulging at L4-5. (Ex. 4, p. 7)
Dr. Winters and neurosurgeon Loren Mouw, M.D., treated with steroid injections, physical therapy, and a pain management program, but symptoms did not resolve. By July 2002, Fisher had bilateral leg pain and experienced an exacerbation in February 2003, also treated by Dr. Winters. (Ex. 6, p. 10) On March 24, 2003, Fisher presented with a “flare” to Dr. Winters’ associate, Richard M. Hodge, M.D., and was taken off work through March 28. Dr. Hodge’s chart notes further record that “[s]he doesn’t recall any specific activities that would have triggered this.” (Ex. 6, p. 11) Fisher here seeks temporary disability benefits for the five days.
Dr. Mouw offered the following opinion in a report dated November 26, 2002:
Ms. Fisher has complained of low back pain since the time of her fall on 03-09-01. Based upon that I believe her complaints of pain are causally related to her fall.
(Ex. 10, p. 1)
In a followup report dated March 6, 2003, Dr. Mouw rated impairment at five percent of the whole person. (Ex. 10, p. 2) He did not recommend permanent activity restrictions.
Dr. Winters testified by deposition on November 16, 2004. Dr. Winters did not feel that he could (or could not) causally tie Fisher’s back complaints to the work injury, but pointed to the timing of events and clearly thinks that the fall or altered mechanics resulting from the fall could have caused back symptoms. (Ex. 16, pp. 9-10)
In response to a questionnaire form prepared by a defense claims representative on April 30, 2002, Dr. Winters’ colleague Matthew Maloney, M.D., found within a reasonable degree of medical certainty that Fisher’s low back pain resulted from the work injury on March 9, 2001, but did not think Fisher had as of that date reached maximum medical improvement. (Ex. 13) However, in his chart notes of March 29, 2002, Dr. Maloney reported telling Fisher that “I am not 100% sure that her work necessarily caused her to have the disc and back problem that she has.” (Ex. C, p. 5)
On October 4, 2002, Fisher underwent an independent medical evaluation by orthopedic surgeon Peter D. Wirtz, M.D. Dr. Wirtz concluded that Fisher’s rib injuries had healed, that her preexisting lumbar disc disease was not materially aggravated by the work injury, and that a lumbar “soft tissue strain” caused by the fall had responded to management following a third epidural injection on October 25, 2001. (Ex. F, p. 4) Dr. Wirtz added that Fisher’s present soft tissue symptoms do not result in functional limitation or impairment and that her leg pain “does not correlate with the MRI disc degenerative condition” and would likewise be best managed by strengthening and conditioning. (Ex. F, p. 5) In a followup report dated November 20, 2002, Dr. Wirtz opined that Fisher had attained maximum medical improvement relative lumbar myofascial symptoms on August 8, 2001 (but still should be managed with strengthening back musculature and avoidance of awkward activities). (Ex. F, p.7) Dr. Wirtz summarized his opinion in yet another report, dated September 24, 2003:
The degenerative disc disease predated the injury of 3-9-01 in the lumbar spine. The examination 10-4-02 did not reveal physical findings of restricted activities, therefore no physical restrictions or limitations as a result of the 3-9-01 injury.
The ongoing subjective complaints in the low back area are muscular in nature and are due to physical activities bringing out those symptoms, unrelated to the 3-9-01 injury. The lumbar degenerative disc condition is a condition that would be symptomatic with excessive or involuntary activities of the spine.
(Ex. F, p. 9)
Currently, Fisher describes having constant pain, sometimes severe, and has some reduced ability to walk or exercise, but does not self-limit herself on the job, is earning a higher hourly wage than on the date of injury, and agrees with her physicians that no work restrictions are currently necessary. Such honesty speaks well of Fisher’s credibility.
One other condition and its cause are at issue in this claim. On August 8, 2001, Fisher presented to Dr. Maloney with a silver-dollar sized growth over the left knee that had developed in the course of a single day. (Ex. 6, p. 3) The growth continued to increase in size, and Dr. Winters referred his patient to surgeon K.R. Kopesky, M.D., who excised the mass on December 18, 2001. (Ex. 9, p. 1) According to Dr. Kopesky, the mass was made up of fat necrosis and granulation tissue; he added:
This would fit with the pathology which showed areas of fat necrosis and early organization suggesting a traumatic area and may have been in essence a ganglion cyst which may have been a traumatic event secondary to her fall.
(Ex. 9, p. 1)
Dr. Wirtz’s report concluded that the left knee mass removal was unrelated to the work injury, but did not explain the basis for his opinion. (Ex. F, p. 4)
CONCLUSIONS OF LAW
Claimant has the burden of proving by a preponderance of the evidence the injury is a proximate cause of the disability on which the 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).
The parties dispute whether or not the stipulated work injury caused a low back injury, knee condition, five days of temporary disability, permanent disability, and certain medical costs and mileage set forth in exhibits 14 and 18. Although the causation opinions offered by Drs. Winters, Maloney and Moew are somewhat ambivalent or, in Dr. Moew’s case, dependent on back pain since the time of injury, they fit the facts better than the contrary view held by Dr. Wirtz. Although Fisher had a preexisting degenerative condition, she was not symptomatic with respect to muscle pain until two hours after returning to work following her fall–prior to which any low back pain could understandably be masked by the more immediate and intense pain of broken ribs. Given that it is possible for that nature of trauma to aggravate a preexisting degenerative condition and cause a soft tissue injury, along with the clear time correlation in this case and the general weight of three professional opinions, treating physicians all, it is found that Fisher has established a causal nexus between the work injury of March 9, 2001, and the back symptoms she now experiences, along with necessary medical costs as reflected in the exhibits.
Likewise, the professional opinion of the treating surgeon, Dr. Kopesky, demonstrates the likelihood that the growth over Fisher’s left knee resulted from the traumatic fall, and is accepted. Medical costs are accordingly compensable.
Fisher does not claim that her knee condition resulted in permanent impairment, but seeks industrial disability benefits based on her back condition. 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 Dr. Moew rated impairment at a modest five percent of the body as a whole, neither he nor any other physician has recommended any activity restrictions whatsoever. Fisher agrees, and continues to work her regular job without difficulty. According to Steve Point and Brian Odean, Fisher is a good employee and not a complainer. In a case involving surgery and a resulting impairment rating four times greater than that offered by Dr. Moew here, the Iowa Supreme Court determined that a claimant who returned to full duty with all restrictions lifted had zero industrial disability to apportion following a subsequent work injury. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991). This agency subsequently held that an individual who returns to work with no loss of earnings or medical restriction of any kind has not sustained industrial disability. Wolfe v. A.Y. McDonald Mfg. Co., File No. 985553 (App. Dec. 1994).
So is it here. Although Fisher has some modest impairment, according to Dr. Moew, she has had no activity or work restrictions imposed, does the same job at an increased wage, and demonstrates no other indication of lost earning capacity. Accordingly she has failed to establish entitlement to permanent partial disability benefits.
Fisher also claims temporary disability for five lost workdays in 2003 following a temporary increase in symptoms. No medical expert has causally tied that temporary incident to the work injury sustained two years before. Absent proof of causation, that brief period of temporary disability is not compensable.
ORDER
THEREFORE, IT IS ORDERED:
Defendant shall pay disputed medical costs and mileage as set forth in exhibits 14 and 18.
Defendant shall file subsequent reports of injury as required by this agency.
Costs are taxed to defendant.
Signed and filed this _____11th______day of March, 2005.
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DAVID RASEY
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
Copies to:
Ms. Kimberly K. Hardeman
Attorney at Law
P.O. Box 1943
Cedar Rapids, IA 52406-1943
Mr. John M. Bickel
Attorney at Law
P.O. Box 2107
Cedar Rapids, IA 52406-2107
DRR/smc