VAN ZILE V. YOU SQUARED

Page 1

BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER

______

:

SHAUN RYAN VAN ZILE, :

:

Claimant, :

:

vs. :

: File No. 5008959

YOU SQUARED, :

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

Employer, :

: D E C I S I O N

and :

:

ACUITY INSURANCE, :

:

Insurance Carrier, : HEAD NOTE NO.: 1803

Defendants. :

______

STATEMENT OF THE CASE

Shaun Ryan Van Zile, the claimant, seeks workers’ compensation benefits from defendants, You Squared, the alleged employer, and its insurer, Acuity Insurance, as a result of an alleged injury on December 11, 2002. The caption of this case is amended to reflect the insurer. Presiding in this matter is Larry P. Walshire, a deputy Iowa Workers’ Compensation Commissioner. I heard this claim on May 18, 2005. Oral testimonies and written exhibits received during the hearing are set forth in the hearing transcript.

Claimant’s exhibits were marked numerically. Defendants’ exhibits were marked alphabetically. References in this decision to page numbers of an exhibit shall be made by citing the exhibit number or letter 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, “Exhibit 1-2:4.”

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

  1. On December 11, 2002, claimant received an injury arising out of and in the course of employment with You Squared.
  1. Claimant is seeking temporary total or healing period benefits only from December 11, 2002 through December 14, 2002.
  1. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole.
  1. If I award permanent partial disability benefits, they shall begin on December15, 2002.
  1. At the time of the alleged injury, claimant's gross rate of weekly compensation was $587.89. Also, at that time, he was single and entitled to one exemption for income tax purposes. Therefore, claimant’s weekly rate of compensation is $360.07 according to the workers’ compensation commissioner’s published rate booklet for this injury.

Ruling on Objection to Dr. Meyer's Testimony

Reserved for ruling in this decision is defendants' objection to the admissibility of testimony by a treating licensed chiropractor, Robert Meyer, D.C. His testimony was taken at hearing but subject to this objection. Defendants specifically object to the opinions offered at hearing by this doctor because he was not identified in answers, or supplements, to answers to interrogatories submitted to claimant seeking discovery of an expert opinions acquired or developed in anticipation of litigation or for trial as required by Iowa Rule of Civil Procedure 1.503(4) and 1.508(3).

Claimant responds that Dr. Meyer is a treating doctor known to defendants who had possession of his treatment records long before hearing. Claimant further responds that, in any event, this doctor was identified as a witness in a witness list delivered to defendants more than 60 days before hearing. Defendants reply that no opinions were contained in his treatment records and they did not take his deposition as they did of Thomas Hughes, M.D., due to their reliance upon claimant's answers to interrogatories.

First, Dr. Meyer prepared no written reports of his opinions, therefore, our administrative rule 876 IAC 4.17 requiring exchange of such reports is not applicable. Second, as he was a treating physician, no certification of the expert 90 days in advance of hearing is necessary as required by 876 IAC 4.48(b). However, both our rule 876 IAC 4.48(c) and the hearing assignment order requires supplementation 30 days before hearing of answers to interrogatories relating to experts under Iowa Rulesof Civil Procedure 1.503(4) and 1.508(3). However, the inquiry does not end at this point in light of two Supreme Court interpretations of the following paragraph in Iowa R. Civ. P. 1.508(1):

Nothing in this rule shall be construed to preclude a witness from testifying as to knowledge of the facts obtained by the witness prior to being retained as an expert or mental impressions or opinions formed by the witness which are based upon such knowledge.

Both in Day v. McIlrath, 469 N.W.2d 656 (Iowa 1991) and Carson v. Webb, 486N.W.2d 278 (Iowa 1992), the Court reversed a trial courts exclusion of an expert opinion from a treating physician based upon a failure to supplement discovery under Rule 125(c) [now 1.508(3)]. The court in Day reasoned that a treating physician, given the nature of his initial role in any case, usually learns of facts and develops opinions before being retained as an expert and often before the parties themselves anticipate litigation. Consequently, their opinions do not stand on the same footing as retained experts contemplated by Rule 125 [1.508(3)]. Day, 469 N.W.2d at 677. In Carson, the Court further stated that the paramount criteria whether the opinion was arrived at based upon facts or opinions obtained during treatment or upon facts or opinions formulated for purposes of issues in pending litigation. Carson, 486 N.W.2d at 280281.

In this case, Dr. Meyer provided the following four opinions:

1)His prior treatment of claimant before the injury of December 11, 2002 was to address a low back condition, not a neck condition;

2)His treatment of the neck or cervical spine after the motor vehicle accident of December 11, 2002 and how the motor vehicle accident caused the injury.

3)His treatment and his charges for treatment causally related to the accident are reasonable and customary chiropractic care in the Dubuque area; and,

4)As a result of his injury of December 11, 2002, claimant is now permanently restriction from physical activity that would involve neck flexion or extension and right or left head rotation.

While Dr. Meyer did not specifically make any of the first three opinions in his records, such opinions would clearly have been formulated long before this litigation and before he was retained to testify at hearing. Therefore, such opinions shall be received and considered in this case.

The fourth opinion is more troublesome as none of his treatment records provide any sort of activity restriction, temporary or permanent. Apparently that opinion was formulated, not during his treatment, but a couple of months before hearing for the purposes of testifying for the claimant at hearing as a retained expert. On the otherhand, this doctor has been treating claimant continuously since December 2002. Litigation did not commence in his matter until August 2003. There has been no showing that this doctor rendered an opinion based upon facts not acquired during his treatment.

This agency has repeated held that each party is under an equal obligation to reasonably investigate a claim including the views of treating physicians known to both parties. Weatherall v. Eagle Iron Works, File No. 1254728 (App. August 25, 2003); Jones v. The Yard of Omaha, File No. 988096 (App. December 19, 2003). This agency has also held that prejudice is not shown by a loss of tactical advantage at trial. Hill v. Fleetguard, Inc., File Nos. 1282741, 1282743 (App. July 24, 2003). In this case, defendants should have been aware of the applicable rules and their interpretations by the Iowa Courts and this agency's prior case law on this matter. Their choice to not take the doctor's deposition upon learning that he would testify was at their peril.

Therefore, the objection is overruled and all Dr. Meyer's opinions are received and considered.

One more evidentiary matter that needs to be noted at this time is that I allowed into evidence, over the hearsay objection by defendants, exhibit 6, a report published by the United States Department of Health and Human Services, Centers for Disease Control and Prevention, entitled "Traumatic Brain Injury (TBI): Heads Up--Facts for Physicians about Mild Traumatic Brain Injury (MTBI)." That report essentially states that although in most cases of mild traumatic brain disorder, the patient fully recovers, some studies indicate that 15 percent may experience persistent disabling problems such as memory loss, impaired consciousness, irritability, lethargy and headaches (many of the symptoms claimant testified he had following his injury in this case) and one of the leading causes of TBI is motor vehicle accident.

This general report was not given much weight in making findings in this case relative to claimant's injury or claimed disability as such a report is not evidence that claimant falls within the 15 percent. Such evidence must come from the facts of this case and expert opinion specific to those facts and claimant.

ISSUES

At hearing, the parties submitted the following issues for determination:

  1. The extent of claimant's entitlement to weekly temporary total or healing period benefits and permanent disability benefits; and,
  1. The extent of claimant's entitlement to medical benefits including a claimed credit by defendants for $5,000.00 of benefits paid by claimant's personal auto insurance.
  1. The extent of claimant’s entitlement to penalty benefits for an unreasonable delay or denial of weekly benefits pursuant to Iowa Code section 86.13.

FINDINGS OF FACT

In these findings, I will refer to the claimant by his first name, Shaun.

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 Shaun credible.

Shaun worked for You Squared, a company which provided, in part, wireless internet services to the public, from the summer of 2002 until sometime in 2003 when he voluntarily changed to part-time work to start his own satellite T.V. distributorship in February 2003. Eventually that same year, he left You Squared completely to spend full time working in this business, which he still operates today. At no time while working for You Squared was claimant under any physician imposed activity restrictions.

Shaun's job at You Squared was the installation of equipment, including microwave dishes on customer homes and buildings, utilized to access the Internet. This job obviously required physical activity of lifting, bending, squatting, climbing and crawling.

Shaun asserts that he was in relatively good health before his employment at You Squared. The only records of treatment for continuing physical problems was chiropractic care beginning in March 2002 for the low back by Robert Meyer, D.C., the doctor who was the subject of the objection ruled on earlier in this decision. Shaun admits to an old football injury to his mid and lower back in high school for which he received brief treatment in early 1995. Shaun denies any neck, shoulder, headache, fatigue or sleep problems prior to the date of the stipulated injury herein, December 11, 2002, there is no records evidence in the record of this case to suggest otherwise.

There is no dispute that on December 11, 2002 while driving his personal passenger automobile for a You Squared business purpose, Shaun was rear-ended by a pickup truck. The accident occurred when he was attempting to make a right turn but had to slow or stop for traffic coming from his left. Shaun testified that there was a loud crash and that his vehicle suffered $1,200.00 damage. The driver of the pickup testified at hearing that the blow was minor and that he could not observe any damage to either vehicle after the accident. Shaun told claimant's independent medical examination (IME) doctor, Thomas Hughes, M.D, that the pickup was traveling five m.p.h at the time of the crash. Shaun admits that he was only paid $500.00 for his car damage by insurance. No written damage estimates were offered into evidence.

I find Shaun's account more credible given his demeanor and that of the other driver. Also, I do not find it that unusual for insurers to pay less for vehicle damage than is claimed for a variety of reasons.

Shaun testified that he experienced immediate neck pain after the accident and drove his damaged vehicle to Finley hospital seeking care for his neck. Physicians at Finley diagnosed "cervicothor" sprain, which apparently means sprain of the cervical and thoracic regions of the spine. Shaun was prescribed medications and told to go home and take the next day off. (Ex. 2)

While driving to the hospital and again at the hospital, Shaun had telephone conversations with You Squared's office scheduler/dispatcher, Rita. Shaun informed her of the accident and his intention to obtain care at Finley. He also informed her later that he was going home and not working the next day on doctor's orders. He was only told by Rita to keep her informed.

On his own, on the same day as the accident, Shaun sought additional treatment for his neck and shoulder pain, that subsequently developed from Dr. Meyer, who he had been seeing for his low back. On December 13, 2002, he returned to full-duty work at You Squared and completed an accident report. (Ex. C) Shaun testified that when he requested that You Squared or its insurance pay for his medical care, he was told by the company president that since he was not off for three days, the company was not accepting liability for the injury and that he should collect his medical and damage expenses from the other driver's insurance company. (Ex. 10) At that time, he was only paid for the remainder of the day after the accident but later the company president offered to pay for the following day. It is unclear in the record if he was paid for his absence on the 12th. I find that to date, despite their immediate knowledge of the injury and of Shaun's physical complaints after the accident, neither You Squared nor its insurer, admitted responsibility or liability for this injury or offered medical care for the stipulated injury. There was apparent acquiescence by both entities to claimant seeking his own care.

Shaun continued full-duty work until he left You Squared. He never lost any additional work due to his work injury other than the initial time off following the accident. Shaun has continued with regular chiropractic treatment including adjustments and other modalities by Dr Meyer since the accident and this treatment continues today. Dr. Meyer explained that the fact that his head was turned towards the left to view traffic at the time of the accident was an aggravating factor in his injury. Dr. Meyer opined that his treatment and charges were reasonable and contrary evidence was not offered by defendants.

I find that the medical treatment provided by Finley was emergency care and, in any event, authorized by You Squared due to their knowledge and acquiescence. I find that defendants have never admitted liability or responsibility for any of Shaun's physical and mental complaints after the accident. I find that the time off work recommended by Finley's doctors was causally related to the injury and reasonable and necessary treatment of the injury. I find that defendants never had reasonable grounds to deny this clam.

I find all of the requested chiropractic and medical expenses listed in the amended exhibit 1 submitted after hearing at my request, which totals $9,531.10 constitutes reasonable and necessary treatment of the work injury of December 11, 2002. Defendants offered no evidence to suggest otherwise. I find that defendants have not paid any of these expenses. Interestingly, despite the denial of his worker's compensation claim, You Squared's group carrier for its employees, John Deere Health, also has not paid for any of his treatment. To date, a portion of Dr. Meyer's charges for treating this work injury has been paid by Shaun's personal automobile insurance carrier, State Farm Insurance Company, in the amount of $5,000.00. In making this payment, State Farm received a contractual reduction in charges because Dr. Meyer was in a State Farm provider network. Only Shaun paid premiums to State Farm. Defendants have not paid any portion of the insurance premiums for this auto insurance by State Farm Insurance.

Following the accident, Shaun has had a myriad of complaints in addition to neck and shoulder pain, which he attributes to the accident and has related to his treating and evaluating doctors. These include recurrent severe headaches, loss of sleep, irritability, loss of concentration, and general fatigue. He, however, admits that many of these complaints have improved over the years since the injury. Despite some lingering problems, only Dr. Meyer has recommend activity restrictions which consist of limited flexion or extension of the neck and rotation of the head. Shaun testified that he sought out self-employment because he needs a flexible schedule due to his recurrent headaches, sleep problems and fatigue. However, he admits that he started his business because he felt he could do better financially on his own.

At the request of his attorney, Shaun was evaluated in September 2003 by Mark Fortson, M.D., a neurologist who diagnosed post-traumatic headaches and sleep disturbance. Dr. Fortson treated Shaun over the next few months but released him from care in an improved condition. Shaun denies that he told Dr. Fortson his headaches had ended by December 2002. (Ex. 4)

Shaun's claimed disability was evaluated by Thomas Hughes, M.D., again at the request of his attorney. Dr. Hughes opines that despite the minor accident, he did suffer a mild traumatic brain or closed head injury and still has lingering problems with headaches, fatigue, irritability and sleep. However, the doctor felt these were mild and provided a relatively small permanent impairment rating of five percent to the whole person pursuant to the Fifth edition of the AMA Guides. He did not provide any rating for any dysfunction of the neck or cervical spine. The doctor also specifically did not recommend any activity restrictions and felt that Shaun is free to engage in normal activity. He also opined that further chiropractic care would not have beneficial effect.