RYAN V. SEARS MANUFACTURING CO.
Page 1
BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______
:
RICHARD M. RYAN, :
:
Claimant, :
:
vs. :
: File No. 5006286
SEARS MANUFACTURING CO., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
VIRGINIA SURETY CO., :
:
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, Richard Ryan, sustained a stipulated work injury in the employ of defendant Sears Manufacturing Co. on November 9, 2001, and now claims benefits under the Iowa Workers’ Compensation Act from that employer and its insurance carrier, defendant Virginia Surety Co.
The claim was heard and fully submitted in Davenport, Iowa, on September 28, 2004. The record consists of the testimony of Ryan and Marvin Morgan, Ryan’s exhibits 1-4, and joint exhibits A-N.
ISSUES
STIPULATIONS:
- Ryan sustained injury arising out of and in the course of employment on November 9, 2001.
- The injury caused both temporary and permanent disability.
- Healing period entitlement is not in dispute.
- Permanent disability benefits commence on July 29, 2002.
- The correct rate of weekly compensation is $345.20.
- Entitlement to medical benefits is not in dispute.
- Defendants should have credit for benefits paid.
ISSUES FOR RESOLUTION:
- What is the nature and extent of permanent disability?
FINDINGS OF FACT
Richard Ryan, age 47, is a high school graduate without other formal training. His work experience is as a factory production worker. He started work for Sears Manufacturing as an assembler in 1987, and became a forklift truck operator somewhat over a year later, the job he still holds today.
Ryan sustained severe and disfiguring injuries in an industrial accident on November 9, 2001, when he was knocked down by his runaway forklift, and his left leg was caught in the wheels. This resulted in multiple ankle fractures and a “degloving” loss of skin and muscle tissue from the knee down.
Ryan’s care was directed by orthopedic surgeon Joseph Martin, M.D., and plastic surgeon James Paul, M.D., who performed multiple surgical repairs in the days following injury. Despite their best care, unfortunately, Ryan is left with severe disfigurement in the limb. He continues to experience sharp pains down to the foot, and both knees are aggravated by climbing stairs. He has diminished ability to squat or bend forward. Ryan walks with an abnormal gait as he demonstrated at hearing along with a view of his shoes, which exhibited a clearly abnormal pattern of wear.
Ryan also has low back problems, but the parties dispute whether or not they were caused by his leg injury and, if so, to what degree they are disabling.
Chiropractor Chris Beckwith, D.C., offered a statement dated June 11, 2004, to the effect that he saw Ryan perhaps a dozen times between July and November 2001, and that he had complaints of upper back and neck pain, but did not mention radiating pain into the lower extremities. (Exhibit 4) Ryan’s initial history taken July 3, 2001 reflected low back pain, neck pain and pain between the shoulders in the 6 months prior to that date. (Ex. A, p. 2) Ryan also gave a history of dull low, middle and upper back complaints “sometimes” for the last 5 years. (Ex. A, p. 4) Ryan reported a history including a number of traumatic incidents, including a 1992 head-on motor vehicle accident (“back messed up” and other injuries), several falls while biking, horse riding and while participating in baseball, football and wrestling, and an incident when a “guy threw me off a porch.” (Ex. A, p. 4)
On July 19, 2002, Dr. Martin released Ryan to return to his regular job duties. (Ex. C, p. 7) Ryan is currently working his former job with no apparent difficulty and at a higher hourly wage. In a report dated August 28, 2002, Dr. Martin rated impairment at 20 percent of the whole person, and on October 23, 2002, found 52 percent impairment to the leg. (Ex. C, pp. 8, 9) Dr. Martin’s chart notes of October 25, 2002 record:
He has had low back pain since his injury but he has never complained of this before. He does not recall having low back problems before his injury. He complains of pain all up and down the spine and sometimes down the left leg when he is driving. Otherwise he has no complaints of numbness and tingling. Pain between the shoulder blades and low back as well.
(Ex. C, p. 10)
Dr. Martin ordered an x-ray study of the lumbar and thoracic spine, which disclosed a healed compression fracture at L1. Dr. Martin thought this was questionably related to a previous injury and that “some of his symptoms may be related to this.” (Ex. C, p. 11)
On July 24, 2003, Ryan presented to orthopedic surgeon Jerome G. Bashara, M.D., for an independent medical evaluation at his own request. Dr. Bashara’s report notes “[n]o history of back pain prior to his injury of 11/9/01,” clearly an incorrect history. Based in part on this history, Dr. Bashara concluded that the compression fracture at L1 was directly related to his work injury, and rated lumbar impairment at 12 percent of the body as a whole and lower extremity impairment at 28 percent of the body as a whole. (Ex. G)
Dr. Bashara testified by deposition on March 22, 2004. He clearly had been given no history of Ryan’s previous back complaints (which he thought started with complaints to Dr. Martin in October 2002), and agreed that knowledge of Ryan’s chiropractic history would have been important. (Ex. G, p. 20) He also agreed that incidents such as a motor vehicle accident, falls from horses and bicycles, and being thrown from a porch could cause a compression fracture. (Ex. G, p. 22)
Thomas J. Hughes, M.D., evaluated Ryan at defendants’ request on May 8, 2003. Dr. Hughes offered this opinion:
It certainly seems evident from the records that Mr. Ryan has had this particular [back] problem in the past and he continues to have it now. It is probably somewhat better documented at this time than it was previously in some respects. It certainly seems to be significantly associated with some of the anxiety problems that have been experienced by Mr. Ryan before and subsequent to his work injury. It also seems as though maybe it was somewhat improved when he was utilizing the medications prescribed by his personal physician to control his anxiety symptoms. Irrespectively, I would offer that Mr. Ryan has had this condition prior to this accident and continues to have it subsequent to the accident and I do not find that there is clear evidence that there has been any aggravation or permanent worsening of this problem as a consequence of this particular accident.
(Ex. H, p. 6)
Dr. Hughes did not rate impairment to the leg.
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).
Ryan has evidence of a thoracic vertebral fracture and back complaints, and contends that he now has injury-related impairment to the back. If this contention is established, any residual permanent disability should be compensated by the industrial method, or as a loss of earning capacity.
Ryan’s contention enjoys professional support in the opinions of Drs. Martin and Bashara. However, each of those opinions is based on a significantly deficient history: that Ryan had no history of back problems prior to his work injury on November 9, 2001. Actually, Ryan was undergoing regular chiropractic treatment for back pain of some five years’ duration. He also had a history of a “messed up” back in a motor vehicle accident and a number of traumatic incidents, including multiple falls and being thrown off a porch. Medical opinions supporting his claim are based on inaccurate history and are for that reason much less persuasive than Dr. Hughes’ opinion. Considering all the evidence, Ryan fails to persuade that his work injury extends to the body as a whole.
Accordingly Ryan’s scheduled member disability should be compensated under Iowa Code section 85.34(2)(o) as a loss to the leg, and as a percentage of 220 weeks. Dr. Martin’s rating of 52 percent loss to the leg is accepted as establishing Ryan’s entitlement: 114.4 weeks of permanent partial disability.
ORDER
THEREFORE, IT IS ORDERED:
Defendants shall pay one hundred fourteen point four (114.4) weeks of permanent partial disability benefits at the rate of three hundred forty-five and 20/100 dollars ($345.20) commencing July 29, 2002.
Defendants shall have credit for benefits paid.
Accrued weekly benefits, if any, shall be paid in a lump sum together with statutory interest.
Defendants shall file subsequent reports of injury as required by this agency.
Costs are taxed to defendants.
Signed and filed this _____31ST______day of January, 2005.
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DAVID RASEY
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
Copies to:
Mr. Ronald A. May
Attorney at Law
2322 E Kimberly Rd., Ste. 120W
Davenport, IA 52807-7202
Mr. Paul Salabert Jr.
Attorney at Law
100 E Kimberly Rd., Ste. 704
Davenport, IA 52806-5944
Ms. Jean Dickson Feeney
Attorney at Law
111 E 3rd St., Ste. 600
Davenport, IA 52801-1524
DRR/smc