SANCHEZ V. KRAFT FOODS, INC./OSCAR MAYER DIVISION

Page 1

BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER

______

:

MARIA F. SANCHEZ, :

:

Claimant, :

:

vs. :

: File No. 5008768

KRAFT FOODS, INC./OSCAR :

MAYER DIVISION, :

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

Employer, :

: D E C I S I O N

and :

:

KEMPER INSURANCE COMPANIES, :

:

Insurance Carrier, : HEAD NOTE NOS.: 1801; 2500;

Defendants. : 2501; 2700

______

STATEMENT OF THE CASE

This is an arbitration proceeding. Claimant, Maria F. Sanchez, filed an original notice and petition with the Iowa Division of Workers’ Compensation on July 30, 2003. She alleged she sustained a work-related injury on March 17, 2003 while she was in the employ of Kraft Foods, Inc./Oscar Mayer Division. Claimant alleged her work injury affected her back. Claimant alleged the proper venue to be the Seventh Judicial District of Iowa.

Kraft Foods, Inc./Oscar Mayer Division is a large processor of food products. At the Oscar Mayer plant in Davenport, the company processes luncheon meats. For purposes of workers’ compensation, the company is insured by Kemper Insurance Companies.

Defendants filed their answer on August 6, 2003. They denied the occurrence of a work injury on the aforesaid date.

The parties filed a pre-hearing conference report. They indicated they would be prepared to try the case on or after April 30, 2004.

The hearing was scheduled as a backup hearing for March 9, 2005. The case was heard on the aforesaid date at the Kahl Building in Davenport, Iowa.

The undersigned appointed Ms. Alanna Jeffery as the certified shorthand reporter. She is the official custodian of records and notes.

Claimant was the sole witness to testify at her hearing. The parties offered claimant’s exhibits A-D and defendants’ exhibits A-D. The parties agreed to forego the filing of any post hearing briefs.

STIPULATIONS

In the hearing report, the parties stipulated;

  1. There was the existence of an employer-employee relationship at the time of the alleged injury;
  1. At the time of the alleged work injury, claimant’s weekly benefit rate was $392.77 per week;
  1. Prior to the hearing, claimant was paid no weekly benefits; and
  1. The parties can agree to the allowable costs incurred to litigate the claim.

ISSUES

The issues to determine in this decision are:

  1. Whether claimant sustained an injury on March 17, 2003 which arose out of and in the course of her employment;
  1. Whether the alleged injury is a cause of temporary and or permanent disability;
  1. Whether claimant is entitled to temporary or healing period benefits for the following periods:
  1. March 23, 2003 through March 31, 2003, (1 week and 2 days);
  1. April 11, 2003 through September 24, 2004, (76 weeks);
  1. Whether claimant is entitled to permanent disability benefits commencing from September 24, 2004; and
  1. Whether claimant is entitled to medical benefits pursuant to section 85.27 of the Iowa Code, as amended.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This deputy, after hearing the testimony of claimant and after reading the evidence presented, makes the following findings of fact and conclusions of law:

Claimant is a married obese woman. She has been advised to lose weight for health purposes. She is 29 years old and holds a high school diploma. Claimant is especially gifted in the sewing arts having taken four years of sewing in high school.

On the date of the alleged injury, claimant was working at the Oscar Mayer plant as a “stuffer.” The job required repetitive stooping and bending. Claimant was required to handle two and one half pounds of meat every two seconds. She grabbed the product and then placed the product into large meat racks that were about seven feet in height. The racks contained many smaller racks for meat placement. The racks held 10 to 12 rows. The lowest row was approximately 12 inches from the floor. The next row was about four inches above the first row. Each row held 20 to 30 compartments for the meat products. Approximately four hours into her shift, claimant was placing meat products on the lowest row. She bent over to fill the lowest row with meat product when she experienced a sharp pain in her right lower back area. The pain radiated into her right hip. Immediately, claimant reported the incident to Barb, “the lead worker.” A coworker handled claimant’s job while she and Barb left the work area so claimant could engage in ice therapy for 15 to 20 minutes. Following the ice therapy session, Barb assigned claimant to “casings,” a job that did not require bending and stooping.

Early on the March 18, 2003, the company registered nurse, sent claimant to the company physician, Rick Garrels, M.D. Claimant reported she experienced back pain after bending to place meat products on the lowest rack. Dr. Garrels found:

On exam, the patient has tenderness in the low back musculature. There is no increase in tone, spasms, or loss of the lumbar lordosis. Range of motion is guarded in all planes.

(Defendants’ Exhibit B, page 1)

The company physician ordered ice therapy and over-the-counter medications. (Def. Ex. B, p. 1) He also ordered five views of the lumbar spine. The results of the xrays were negative. (Ex. B, p. 2) Curtis T. Poor, M.D., a radiologist, noted after reviewing the radiographs:

The sacroiliac joints appear normal. The articular facets appear to be intact. No spondylolysis or spondylolisthesis is seen. The disk spaces are adequately maintained.

(Def. Ex. B, p. 2)

Dr. Garrels prescribed ibuprofen, 800 mg t.i.d. Skelaxin one to two t.i.d. and Darvocet N100 one to two t.i.d. p.r.n. (Def. Ex. B, p. 3) Claimant experienced drowsiness after taking the prescribed medication. She was unable to work from March23, 2003 through March 31, 2003 because of her back condition and because of the effect the prescribed medications had on her.

Claimant sought medical attention for her back from D. P. Momongan, M.D., at Redi-Med in Rock Island, Illinois. Dr. Momongan restricted claimant from working for the period mentioned in the above paragraph. (Cl. Ex. D, p. 2) Dr. Momongan diagnosed claimant with back spasms. (Def. Ex. C, p. 3)

Claimant also saw Mary Speidel, R.N., on March 24, 2003. Nurse Speidel noted claimant’s back pain was not improving. (Def. Ex. C, p. 1)

Dr. Garrels released claimant to regular duty effective March 25, 2003. He admonished claimant for missing work on March 23, 24 and 25. (Def. Ex. B, p. 5) The company physician advised claimant to stop all medications. (Def. Ex. B, p. 5) The authorized treating physician opined claimant suffered from “low back pain of uncertain etiology.” (Def. Ex. B, p. 5) Dr. Garrels did not consider the low back pain to be work related. He wrote in the company Occupational Progress Notes:

I cannot see a clear medical issue with this patient. Her exam looks normal and her subjective complaints just don’t add up.

(Def. Ex. C, p. 6)

The company denied responsibility for the claim. Claimant was no longer authorized to treat with Dr. Garrels for her low back and right hip pain. The company denied all care for claimant’s back condition.

On April 11, 2003, claimant sought chiropractic care from Catherine M. Seng, D.C., in Davenport, Iowa. (Def. Ex. D, p. 3) Once again, claimant complained of low back and right hip pain. (Def. Ex. D, p. 4) Dr. Seng opined the condition was related to claimant’s employment. (Def. Ex. D, p. 85) The chiropractor ordered the standard MRI of the lumbar spine. (Def. Ex. D, p. 34)

Dr. Seng diagnosed claimant with:

- Lumbar vertebrae subluxation due to injury.

- Lumbalgia

- Sacro-iliac pain

- Difficulty walking

- Facet Syndrome

(Def. Ex. D, p. 85)

George Patramanis, M.D., interpreted the result of the MRI to be negative. The radiologist noted:

Vertebral alignment and signal are normal. The conus is normal position and of normal signal. Disc height is relatively preserved. No significant disc bulge, herniation, spinal stenosis or neural foramen compromise is seen.

(Def. Ex. D, p. 34)

On May 1, 2003, claimant saw her family physician, Enrique Bringas, M.D. (Def. Ex. A, p. 1) Dr. Bringas diagnosed claimant with:

  1. Chronic low back pain.
  2. Possible muscle sprain.
  3. Obesity.

(Def. Ex. A, p. 1)

Dr. Bringas prescribed heat, stretching exercises and pain medication. (Def. Ex.A, p. 1) The family doctor also recommended rest. He advised claimant to avoid repetitive movements. (Def. Ex. A, p. 1)

Dr. Seng treated claimant between April 2003 and September 2004. The chiropractor prescribed standard massage techniques, chiropractic manipulation, she ordered physical therapy sessions and a tens unit for claimant to use. Claimant derived some benefit from the treatments, especially the use of the tens unit.

Dr. Seng indicated claimant needed to be off work effective April 11, 2003. (Def. Ex.C, p. 4) Claimant was allowed to return to restricted duty on August 7, 2003. (Def. Ex. D, p. 54) Dr. Seng prescribed restrictions of no lifting greater than ten pounds, no repetitive bending, twisting or stooping at the waist, regular use of the tens unit and ice therapy as needed, possible breaks after prolonged sitting or standing and no pulling of the “mule.” (Def. Ex. D, p. 54) Dr. Seng opined claimant “will have a permanent need for work restrictions or limitations.” (Def. Ex. D, p. 86)

Claimant attempted a return to work. However, the officials at the meat processing plant would not allow claimant to work until her work restrictions were lifted. The company had previously denied the injury was related to claimant’s employment. Therefore, the company did not honor the restrictions.

After examining, testing and treating claimant on September 24, 2004, Dr. Seng opined claimant had reached maximum medical improvement. (Def. Ex. D, p. 82) Claimant had normal range of motion. (Def. Exs. D, p. 85 and Ex. D, p. 86) Claimant was advised to return for chiropractic care on an as-needed basis. (Def. Ex. D, p. 82) Dr. Seng did not require future medical care for claimant.

The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 6.14(6).

The claimant has the burden of proving by of preponderance of the evidence that the alleged injury actually occurred and that it both arose out of and in the course of the employment. Ciha v. Quaker Oats Co., 552 N.W.2d 143 (Iowa 1996); Miedema v. Dial Corp., 551 N.W.2d 309 (Iowa 1996). The words “arising out of” referred to the cause or source of the injury. The words “in the course of” refer to the time, place, and circumstances of the injury. 2800 Corp. v. Fernandez, 528 N.W.2d 124 (Iowa 1995). An injury arises out of the employment when a causal relationship exists between the injury and the employment. Miedema, 551 N.W.2d 309. The injury must be a rational consequence of a hazard connected with the employment and not merely incidental to the employment. Koehler Electric v. Wills, 608 N.W.2d 1 (Iowa 2000); Miedema, 551 N.W.2d 309. An injury occurs “in the course of” employment when it happens within a period of employment at a place where the employee reasonably may be when performing employment duties and while the employee is fulfilling those duties or doing an activity incidental to them. Ciha, 552 N.W.2d 143.

The claimant has the burden of proving by a preponderance of the evidence that 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. George A. Hormel & Co. v. Jordan, 569 N.W.2d 148 (Iowa 1997); Frye v. Smith-Doyle Contractors, 569 N.W.2d 154 (Iowa App. 1997); Sanchez v. Blue Bird Midwest, 554 N.W.2d 283 (Iowa App. 1996).

The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Supportive lay testimony may be used to buttress the expert testimony and, therefore, is also relevant and material to the causation question. The weight to be given to an expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts the expert relied upon as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. St. Luke’s Hosp. v. Gray, 604 N.W.2d 646 (Iowa 2000); IBP, Inc. v. Harpole, 621 N.W.2d 410 (Iowa 2001); Dunlavey v. Economy Fire and Cas. Co., 526 N.W.2d 845 (Iowa 1995). Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417 (Iowa 1994). Unrebutted expert medical testimony cannot be summarily rejected. Poula v. Siouxland Wall & Ceiling, Inc., 516 N.W.2d 910 (Iowa App. 1994).

Claimant has met her burden of proof. She sustained a work-related injury to her low back and right hip as a result of her work injury on March 17, 2003. Immediately following the event, claimant reported the incident to her lead worker, Barb. Claimant asked her coworker, Richard, to handle her job while she spoke with the lead worker about the event. Claimant reported the same series of events to both the plant nurse and to the plant doctor. There are no medical records to establish claimant had preexisting back problems or she sustained other injuries that would cause her condition.

There is no evidence in the record to support the conclusion claimant was less than credible. This deputy observed claimant’s demeanor throughout the one hour hearing. Claimant appeared honest and forthright. The undersigned makes an express finding claimant is credible.

While it is acknowledged Dr. Bringas discussed the left hip rather than the right hip, the undersigned has seen many occasions where the physician has confused right from left when discussing the condition of a patient. This appears to be the case here. It is the determination of the undersigned claimant sustained a work-related injury on March 17, 2003.

The next issue to address is the issue of causation. Again, claimant was a credible witness at her hearing. Dr. Garrels did not relate claimant’s condition to her employment. However, Dr. Seng opined claimant’s condition was caused by her employment. Dr. Seng examined claimant on at least one occasion for 28 separate weeks. The chiropractor had numerous occasions to observe and examine claimant. At all times, Dr. Seng related the cause of claimant’s condition to the work injury on March 17, 2003. The undersigned accepts the opinion of Dr. Seng over Dr.Garrels since Dr. Seng had so many more contacts with claimant. It is the determination of the undersigned; claimant’s low back and right hip condition are both related to claimant’s work injury.

Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man."

Functional impairmentis an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).

Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34.

Claimant has not established she is entitled to permanent partial disability benefits. Claimant has only a temporary condition. It resolved when she reached maximum medical improvement on September 24, 2004. Dr. Seng opined claimant had reached a plateau by that date. She did not recommend future medical care.

There are no objective findings to support the conclusion the condition resulted in permanency. The x-rays and the MRI demonstrated claimant’s spinal condition is well within the normal range. Tests for any neurological deficits are negative. There are no permanent partial impairment ratings from any medical providers. The diagnoses given for claimant’s condition are all generic terms for “low back pain.” There are no specific diagnoses. This deputy acknowledges Dr. Seng imposed permanent restrictions. However, the restrictions were based only on subjective complaints of pain. At worst, claimant suffered from a soft tissue injury such as muscle spasms. It is the determination of the undersigned, claimant has a temporary condition.

When an injured worker has been unable to work during a period of recuperation from an injury that did not produce permanent disability, the worker is entitled to temporary total disability benefits during the time the worker is disabled by the injury. Those benefits are payable until the employee has returned to work, or is medically capable of returning to work substantially similar to the work performed at the time of injury. Section 85.33(1).

Per the opinion of Dr. Momongan, claimant was restricted from working from March 23, 2003 through March 31, 2003. This is a period of 1.286 weeks. The undersigned accepts the opinion of Dr. Momongan. Claimant is entitled to temporary total disability benefits for this period of time. Defendants are liable for the same at the stipulated weekly benefit rate of $392.77 per week.

Per the opinion of Dr. Seng, claimant had not reached maximum medical improvement until September 24, 2004. This is a period of 76 weeks. Defendants are liable for the same at the stipulated weekly benefit rate of $392.77 per week.

The final issue to address is the issue of medical benefits pursuant to section 85.27 of the Iowa Code. Claimant has detailed the expenses in her exhibit C. The medical expenses total $7,020.10.

The employer shall 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. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975).