MILLER v. GENERAL MILLS

Page 1

the iowa workers’ compensation commissioner

______

:

DAVID R. MILLER, :

:

Claimant, :

:

vs. :

: File No. 5022464

GENERAL MILLS, :

: R E M A N D

Employer, :

: D E C I S I O N

and :

:

LIBERTY MUTUAL INSURANCE, :

: Head Note Nos.: 1402.30; 2206; 2209

Insurance Carrier, :

Defendants. :

______

This case is before the agency on remand from the Iowa District Court in and for Linn County following a ruling on judicial review filed August 17, 2010.

STATEMENT OF THE CASE

Claimant, David Miller, filed a petition in arbitration with the Iowa Division of Workers’ Compensation alleging an injury to the body as a whole. The hearing on that petition was held and an arbitration decision was issued on August 29, 2008. The presiding deputy workers’ compensation commissioner denied benefits on the basis that claimant failed to carry his burden of proof establishing his injury arose out of and in the course of employment. On August 3, 2009 that decision was affirmed by the workers’ compensation commissioner with additional analysis.

The commissioner’s decision was appealed. On September 23, 2009 claimant filed a petition for judicial review.

In an August 17, 2010 ruling, the district court remanded the case back to the agency to enter additional findings and conclusions of law regarding the concepts of aggravation and cumulative trauma.

FINDINGS OF FACT

Claimant was 55 years old at the time of the hearing. From 1981 until 2006 claimant worked as a maintenance mechanic with General Mills.

Claimant testified his job as a maintenance mechanic required performing preventative maintenance and repairing broken machinery. Claimant’s job requirements indicate claimant was required to lift to 75 pounds. He was required to climb, squat, crawl and bend. (Exhibit 3, pages 20-26; Ex. 7, pp. 9-10; Ex. 10, pp. 3-4)

Claimant routinely worked overtime until a right hip replacement in 1998. After his hip replacement, claimant was restricted to working eight hours a day. (Transcript, pp. 35-37) Claimant did not work overtime or weekends from 1999 until he left General Mills in 2006. (Tr., pp. 101-102)

Claimant testified he was on his feet the majority of the time at work. He said the last few years he worked at General Mills, the majority of his time he spent working on the line repairing broken machinery. He said line work required a lot of bending, kneeling, crawling and stooping. (Tr., pp. 38-39)

Claimant testified that in an eight hour day at General Mills, he worked six and a half hours and was off for one and a half hours. He said he was required to log his hours in to a computer program. He said he believed he worked about 70 percent of his time at General Mills doing maintenance work. (Tr., pp. 114-116)

James Shell testified he was maintenance at the General Mills plant where claimant worked. In that job, Mr. Shell was familiar with claimant’s job and the job requirements claimant performed. (Tr., pp. 147-148)

Mr. Shell said claimant worked in the “fruits” section of the General Mills plant. He said this job was physically less demanding. He said claimant worked six and a half hour days, and half of that time was spent sitting. He testified that between 1999 and 2006, most of the more physical work done at General Mills was done on weekends. He said that during the same period of time claimant did not work weekends. (Tr., pp. 149-163)

Mr. Shell testified General Mills has a software program that measures the utilization of a maintenance mechanic’s time. He said that based on that program, claimant spent about three and a half hours a day on maintenance work. Mr. Shell estimated claimant spent about 50 minutes a day doing line maintenance work. (Tr., pp. 157-164)

Claimant testified he had a right knee injury in 1978 from playing football. (Tr., p.94)

In 1995 claimant began treating with James Turner, M.D., for right hip pain. In August of 1995 claimant was assessed as having progressive degenerative arthritis in the right hip. Claimant weighed 265 pounds. He was counseled to lose weight and to reduce his walking and standing. Claimant continued to treat with Dr. Turner in 1995 for right hip pain. (Ex. H, pp. 2-3)

In January 1996 claimant was evaluated by Michael Brooks, M.D. Claimant had continued right hip pain. Claimant weighed 284 pounds. He was assessed as having right hip pain with osteoarthritis. Dr. Brooks indicated claimant’s weight played a significant role in the progression of his osteoarthritis. Claimant’s job was also a factor. Dr. Brooks recommended that claimant lose weight. He also recommended a job requiring less walking, bending, and squatting. (Ex. H, pp. 4-7)

In April 1996 claimant was evaluated for osteoarthritis by Dr. Brooks. Dr. Brooks noted General Mills was attempting to accommodate claimant’s job. Claimant weighed 292 pounds. Claimant was told weight loss was “vitally important” in helping with his osteoarthritis. (Ex. H, pp. 8-9)

In October 1997 claimant underwent a right knee arthroscopic surgery performed by David Hart, M.D. In January 2008 claimant returned to work with restrictions of lifting up to 40 pounds and no crawling, kneeling, or squatting. (Ex. H, pp. 20-21)

As noted before, in October 1998 claimant underwent a right hip replacement. (Ex. K, p. 3) Claimant returned to work in February 1999. Claimant was limited to working eight hours a day. (Ex. H, pp. 23-27) General Mills honored this restriction.

In December 2001 claimant was evaluated by Dr. Hart for right knee pain aggravated by bowling. Claimant was assessed as having osteoarthritis of the right knee. He was treated with medication. (Ex. H, pp. 29)

In January 2002 claimant was evaluated by Dr. Hart for bilateral knee pain, right worse than the left. He was assessed as having osteoarthritis in the right knee. (Ex. H, p. 29)

In April 2002 claimant was seen by Dr. Hart for left knee pain. Claimant thought his pain was related to his work at General Mills. He was diagnosed as having a tear in the left medial meniscus. Dr. Hart opined claimant’s right and left knee conditions were not work related. (Ex. H, pp. 31-32)

In May 2002 claimant underwent left knee arthroscopic surgery to repair the ACL and meniscus tear. (Ex. H, p. 34)

In September 2002 claimant was assessed by Dr. Hart for synovitis in the left knee. Claimant’s knee was aspirated and claimant was given an injection. Claimant indicated he worked on his feet all day long. (Ex. H, p. 36)

In September of 2003 claimant treated with Dr. Hart for osteoarthritis in both knees. Claimant was assessed as having bilateral osteoarthritis in the knees. He was treated with medication. (Ex. H, p. 37)

In April 2004 claimant was seen by Gina Perri, M.D. Claimant was assessed as having severe arthritis and was morbidly obese. (Ex. L, p. 9)

In August of 2005 claimant returned to Dr. Hart. Claimant had pain in his left hip. Claimant indicated he was on his feet a good deal of time at work. Dr. Hart indicated claimant would require a left hip replacement. (Ex. H, p. 38)

In May of 2006 claimant completed an application for short term disability benefits. As a part of that application Dr. Hart indicated claimant’s osteoarthritis in both knees was not work related. (Ex. G, p. 1)

Claimant’s last day of work with General Mills was July 7, 2006.

On June 8, 2006 claimant underwent a right total knee replacement. He had a right hip replacement on June 15, 2006 as well. Both surgeries were performed by Dr. Hart. (Ex. K, pp. 4-9) In June of 2006 claimant completed a form for insurance. The form indicated claimant’s bilateral knee problems were not work related. (Ex. R, p. 1)

In a February 2007 letter, written by claimant’s counsel, Dr. Hart checked a box indicating claimant’s work at General Mills was a substantial contributing factor in bringing about claimant’s knee condition. In a May 2007 letter, written by claimant’s counsel, Dr. Hart checked a box indicating claimant’s work at General Mills was a substantial factor in accelerating or aggravating claimant’s right and left hip condition. (Ex. 3, pp. 18-19, 27-28)

In a July of 2007 report, David Miller, M.D., gave his opinions regarding claimant’s condition following an independent medical evaluation (IME). Claimant weighed between 295 and 300 pounds. Claimant walked with a limp. Dr. Miller understood claimant’s job to require very frequent squatting, climbing, bending, and stooping. Claimant indicated he lifted over a hundred pounds at work. (Ex. 1, pp. 1-9)

Dr. Miller opined claimant’s osteoarthritis in his hips and knees was due to the cumulative effect of his work requirements at General Mills. He opined claimant’s activity level at General Mills was a substantial contributing factor to the osteoarthritis in claimant’s hip and knees. He indicated claimant’s weight was a contributing factor to his osteoarthritis. (Ex. 1, p. 10)

In deposition Dr. Miller testified claimant’s activity at General Mills was substantial and a contributing factor in the progression of his osteoarthritis in his knees and hips. (Ex. 1, pp. 12, 18) He testified he was unaware of claimant’s activities outside of his work. (Ex. 1, p. 32) Dr. Miller also testified he has never witnessed the maintenance mechanic work at General Mills and had no idea how much claimant’s workday was spent standing, kneeling, or crawling. (Ex. 1, pp. 26-28)

In a February 2008 report, Michael Nogalski, M.D., gave his opinions of claimant’s condition following a records review. Dr. Nogalski did not believe a cumulative injury theory would explain claimant’s osteoarthritis. He opined claimant’s congenital osteoarthritis would have degenerated over time even without heavy work. (Ex. C)

In March 2008 claimant was evaluated by Jerry Jochims, M.D., for an independent medical evaluation (IME). Claimant told Dr. Jochims he had a gradual and progressive injury with repetitive trauma over the period of employment with General Mills. He told Dr. Jochims he worked with equipment weighing 100 pounds or more. He indicated he climbed three stories of stairs eight to ten times a day. He indicated he worked on slippery floors and fell several times at work. He said he worked an average of 48 to 50 hours a week, and had worked up to 84 hours a week. At the time of his IME, claimant weighed 306 pounds. (Ex. E, pp. 104)

Dr. Jochims noted that there was no indication claimant’s hip and knee surgeries were caused by his work. He noted:

In my experience it is not likely nor plausible that this is a cumulative trauma situation. It should also be noted that Mr. Miller’s weight of anywhere from 250 lbs in some of the record to 318 lbs in other records, that this cumulative trauma may be overshadowed by his exogenous obesity. It is noted in one of Dr. Turner’s records that with his recommendation to do the total hip arthroplasty Mr. Miller needed to reduce his weight.

In conclusion I am unable to point to cumulative trauma as a causative etiology in Mr. Miller’s condition. I believe it is more likely related to his genetic and physical makeup, the possibility of some endocrine dysfunction which is alluded to in some of these records, his exogenous obesity and his prior trauma history that is alluded to in the records described above.

(Ex. E, p. 6)

Dr. Jochims based his opinion on 33 years experience as an orthopedic surgeon where he engaged in 3,000 to 5,000 hip replacements, and an equal number of knee replacements. (Ex. E, p. 7)

In a May of 2008 letter, Dr. Miller gave his opinions following a review of Dr. Nogalski’s opinions. Dr. Miller noted medical literature suggested a person may develop osteoarthritis in the joints related to physical requirements of a job. He indicated claimant’s weight and history of injuries to his knees were substantial contributors to the development of osteoarthritis. Dr. Miller noted that once claimant developed osteoarthritis, General Mills ignored recommendations from physicians for job restrictions. Because General Mills ignored job restrictions, Dr. Miller believed claimant’s job was a substantial contributing factor to the progression of his degenerative osteoarthritis. (Ex. 1, pp. 13-14)

CONCLUSIONS OF LAW

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 a preponderance of the evidence that the alleged injury actually occurred and that it both arose out of and in the course of the employment. Quaker Oats Co.v.Ciha, 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).

When the injury develops gradually over time, the cumulative injury rule applies. The date of injury for cumulative injury purposes is the date on which the disability manifests. Manifestation is best characterized as that date on which both the fact of injury and the causal relationship of the injury to the claimant’s employment would be plainly apparent to a reasonable person. The date of manifestation inherently is a fact based determination. The fact-finder is entitled to substantial latitude in making this determination and may consider a variety of factors, none of which is necessarily dispositive in establishing a manifestation date. Among others, the factors may include missing work when the condition prevents performing the job, or receiving significant medical care for the condition. For time limitation purposes, the discovery rule then becomes pertinent so the statute of limitations does not begin to run until the employee, as a reasonable person, knows or should know, that the cumulative injury condition is serious enough to have a permanent, adverse impact on his or her employment. Herrera v. IBP, Inc., 633 N.W.2d 284 (Iowa 2001); Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824 (Iowa 1992); McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).

While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961).

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 asserts he sustained an injury that arose out of and in the course of employment from a material aggravation of a preexisting osteoarthritis, or under a cumulative injury theory. Claimant has the burden of proof in proving both of those theories.

The findings of fact that were made in the arbitration decision in this case found that Mr. Shell’s testimony regarding the hours and physical demands of claimant’s job as a maintenance were more convincing than that of claimant. This finding of fact is supported by the evidence in this case. Mr. Shell testified that General Mills’ records indicate claimant spent approximately three hours a day as a maintenance mechanic, and approximately 50 minutes per day doing repair work on line equipment. (Arbitration Decn, pp. 12-13)

The record of evidence also indicates claimant exaggerated, to at least two physicians, the physical and time requirements of his job as a maintenance mechanic at General Mills. For example, claimant told Dr. Jochims he worked up to 84 hours a week at times. He also told Dr. Jochims he walked three flights of stairs ten times a day and routinely worked from ladders or handrails. Since 1999 claimant worked only 40 hours a week. As detailed, Mr. Shell’s testimony indicates claimant’s job was more sedentary than claimant would have had his physicians believe. Claimant was found not to be credible regarding the physical and time requirements of his job as a maintenance mechanic with General Mills.

Dr. Miller is the only expert who found claimant sustained a cumulative injury that arose out of and in the course of his job at General Mills. Dr. Miller is also the only expert who found that claimant had a material aggravation of preexisting osteoarthritis.

Dr. Miller’s opinion is based, in part, on claimant’s inflated statements regarding the physical and time requirements of his job as a maintenance mechanic. It is expressly found claimant is not credible regarding the requirements of his job at General Mills. Dr. Miller testified he never saw a maintenance mechanic perform at General Mills. He testified he has no idea how much time a maintenance mechanic spends standing, sitting, crawling, or performing other activities at General Mills. Dr. Miller also notes that claimant’s weight and prior history of injuries are substantial contributors of his development of osteoarthritis. Dr. Miller’s opinions are also based, in part, on a belief General Mills failed to implement recommended accommodations in 1996 for claimant. Based on that failure to implement accommodations, Dr. Miller found claimant’s work was a substantial contributing factor to his degenerative osteoarthritis. An opinion based on this reasoning is clearly flawed. Merely because General Mills allegedly failed to accommodate claimant’s 1996 restrictions, does not mean claimant’s job caused his osteoarthritis. Based on this record, Dr. Miller’s opinions, that claimant’s job materially aggravated a preexisting osteoarthritis, and that claimant suffered a cumulative injury as a result of his work at General Mills, are not credible.