PARADA V. HALCYON HOUSE
Page 1
before the iowa WORKERS’ COMPENSATION commissioner
______
:
MARIA GARZA PARADA, :
:
Claimant, :
:
vs. :
: File No. 1277724
HALCYON HOUSE, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
VIRGINIA SURETY, : Head Note No.:1108.50; 2905
:
Insurance Carrier, :
Defendants. :
______
This is an appeal by claimant, Maria Garza Parada, from a review-reopening decision filed January 30, 2006. In the review-reopening decision, the presiding deputy commissioner found that claimant had not established a substantial change in her condition that causally relates to her original February 29, 2000 injury such that she was entitled to review-reopening of the original award in this matter. Claimant timely appealed from the proposed decision.
The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal.
ISSUE ON APPEAL
I. Whether claimant Maria Garza Parada proved by a preponderance of the evidence that following the arbitration decision awarding permanent partial disability benefits there had been a substantial change in her condition causally related to her original work injury involving a disc herniation at L2-L3.
FINDINGS OF FACT
Claimant, Maria Garza Parada, was 41 years old at the time of the review-reopening hearing. (Transcript, page 21) Claimant is originally from Mexico. (Tr., p. 21) She is the mother of four children. (Exhibit 5, page 15) She attained a sixth grade education while in Mexico. (Tr., p. 21) Claimant has no further education or training. Claimant speaks some English and she testified at the review-reopening hearing through the use of an interpreter. Claimant can read and write in Spanish. (Tr., p. 21)
Claimant filed a petition in arbitration originally seeking workers’ compensation benefits from Halcyon House and its insurer, Virginia Surety, as a result of an injury sustained on February 29, 2000, that arose out of and in the course of her employment. In the findings of fact of the arbitration decision filed on December 5, 2002, the presiding deputy commissioner found:
Claimant moved to Iowa in 1999 and began working for Halcyon on December 21, 1999. Prior to beginning work with Halcyon as a housekeeper, claimant passed a pre-employment physical. (Exhibits 15-1; 25-1 and 2) However, claimant did have a history of low back complaints or diagnostic tests from 1987 through 1998. (Ex. 16-1; Ex. 18-1; Ex. E, pp. 8, 9, 11, and 14; and Ex. H, pp. 18-19) She worked 25 to 29 hours a week at the time of the injury involved in this case. Claimant was earning $6.76 per hour.
(Arbitration Decision, page 3) As it related to claimant’s physical condition at the time of the arbitration hearing the presiding deputy found:
On November 27, 2001, Richard Neiman, M.D., evaluated claimant. Dr. Neiman believed that a disc protrusion at the L2-L3 level was causing claimant’s then current level of complaints. Dr. Neiman opined that the disc herniation and his recommended restrictions related to the lifting incident at Halycon. Dr. Neiman found that claimant was incapable of repetitive flexion, extension, and lateral flexion of the lumbosacral spine and that she needed to change positions between sitting and standing. He restricted her repetitive lifting to a range of approximately 10-15 pounds with a maximum of 30 pounds no more than 4 times per hour. He thought that she certainly could not return to heavy-duty activity at Halcyon. He rated her impairment as nine percent of the whole person. (Ex. 1-2)
(Arb. Dec., p. 4) The presiding deputy also noted that claimant had a functional capacity evaluation on February 13, 2002 in which it was recommended that claimant perform activities in the light work levels, meaning working exerting up to 20 pounds of force occasionally and/or up to 10 pounds frequently and/or a negligible amount of force constantly. (Ex. 2-2)
In establishing that claimant’s work injury of February 29, 2000 produced a permanent disability the presiding deputy found:
Claimant was able to do her job before the injury. She was not able to do her job after the injury. Dr. Worrell opined that the disc herniation could have been caused by the work injury. Dr. Neiman opined that the disc herniation and his recommended restrictions were related to the work injury. The functional capacity evaluation recommended permanent restrictions and placed claimant in the light work category able to lift 10 to 15 pounds frequently and 20 to 30 pounds occasionally. There are no expert opinions, medical or otherwise, that claimant’s permanent condition was not caused by the work injury. Claimant has proved that the work injury of February 29, 2000, was the cause of her permanent disability.
(Arb. Dec., p. 6) In awarding permanent partial disability benefits the presiding deputy found:
Claimant was 38 years old at the time of the evidentiary hearing. She has a sixth grade education in Mexico. She did receive certification to be a nurse’s aide but the certification has expired. Her work experience has been unskilled, manual labor paying $4.00 to $9.00 per hour. When she worked for Halcyon she worked 25 to 29 hours a week earning $6.76 per hour. She has an injury to her lower back. She has not had surgery and is not a surgical candidate. Her lifting restrictions place her in the light work category. Her complaints of leg pain are inconsistent in that sometimes the pain is in one leg and sometimes in both. Her work activities at the gas station and her ability to ride in vehicles for extended periods of time suggest she is capable of activity beyond what her subjective complaints would support. The jobs she has held since the injury pay approximately the same per hour as what she earned at Halcyon. The number of hours she works has been reduced from 25 to 29 hours per week prior to the injury to 14 hours per week after the injury. Claimant’s rating of impairment is nine percent. When all relevant factors are considered, claimant has a 20 percent industrial disability as a result of her February 29, 2000, injury.
(Arb. Dec., p. 7)
Despite her extended history of back complaints claimant had performed physical work in Iowa for IBP, inc. and other employers and she had passed pre-employment physicals for her prior employers as well as for Halcyon House. (Tr., p. 73) This fact was acknowledged by the presiding deputy commissioner in his arbitration decision.
Claimant’s petition for review-reopening alleges a change in her medical condition has occurred since the time of the arbitration hearing on October 31, 2002 resulting in a significantly greater industrial loss and the entitlement to temporary disability benefits during a period of healing.
Due to claimant’s alleged increase in back pain and leg numbness an MRI of the lumbar spine was conducted on August 18, 2003. At the L2-L3 level there was a large central and right paracentral disc protrusion present resulting in anterior and anterolateral effacement upon the thecal sac. It was noted that this protrusion was resulting in a moderate spinal stenosis most likely causing compression upon the L3 nerve root. (Ex. 4, p. 14) Following the MRI, claimant’s physician Gustavos Ramos, M.D., on October 10, 2003 diagnosed a large herniated disc at L2-L3 and provided claimant with the option for surgical treatment consisting of a lumbar laminectomy. (Ex. 5, p. 15) Dr. Ramos was the first medical provider to recommend surgical correction of claimant’s back condition.
Dr. Ramos noted that claimant’s back pain with bilateral leg pain and numbness began after a work-related accident on February 29, 2000 when she had back injury and since then has been working at part-time light duties. (Ex. 5, p. 19) Dr. Ramos noted that she has been treated with medications, physical therapy, epidural injections without good or significant improvement. Claimant testified in a deposition on November 17, 2004 that other than her back injury at Halcyon that she had not been involved in any other auto accidents or any other type of accident since her work injury. (Ex. A, deposition, p. 14)
Claimant proceeded with the surgical option with Dr. Ramos on November 6, 2003. (Ex. 5, p. 17; Tr., p. 24) Dr. Ramos performed a lumbar laminectomy with medial facetectomy at the L2-3 level on the right side with microscopic dissection for removal of the herniated disk. (Ex. 5, p. 17)
On November 14, 2003 Dr. Ramos noted that following the surgery claimant was doing only fair, she still had back pain and some leg pain sometimes worse than before the surgery. (Ex. 5, p. 22) As a result Dr. Ramos ordered a new MRI with contrast.
An MRI occurred at the DoctorsHospital at RenaissanceImagingCenter on June 2, 2004. The MRI noted a posterior annular tear with shallow subligamentous disc herniation at L2-3. However, this small midline disc protrusion did not appear to result in nerve root impingement. (Ex. 6, p. 25)
The next note of Dr. Ramos is dated July 6, 2004 and notes that the MRI shows only minimal changes in the area of L2-3 with no recurrent herniation. (Ex. 5, p. 23) Dr. Ramos noted that he would continue to treat claimant and that she would improve with time. Also on July 6, 2004 Dr. Ramos wrote in a letter that claimant had a herniated disc removed surgically and that she is still recovering from this condition. (Ex. 8, p. 26) Dr. Ramos noted that her back problems are such that she cannot sit or stand for long periods of time and she has low back pain. He reported that she has not been able to work since her injury and she will continue taking medications. Dr. Ramos reported that her disability is expected to last approximately a year. (Ex. 8, p. 26)
The final note from Dr. Ramos is dated March 8, 2005 wherein he notes that claimant still has low back pain and requires medication daily for control of her pain. (Ex. 5, p. 23) Dr. Ramos reported that claimant continues to have radiation to her legs with some burning feeling in her back and thus he wished for another MRI study. An MRI of March 9, 2005 noted an enhancing disc herniation appreciated at L2-3. (Ex. 8, p. 28)
On November 18, 2005 claimant traveled to Iowa to attend an evaluation with Robert W. Milas, M.D. (Ex. 9, p. 31) Dr. Milas is a neurological surgeon practicing in Moline, Illinois. Dr. Milas reported that he reviewed the MRI of claimant’s lumbar spine of August 2003 which confirmed a large herniated disc at the L2-L3 level which was central and extended to the right. (Ex. 9, p. 31) Dr. Milas noted that claimant reported that the narcotics which she uses are now incapable of providing the pain relief that she used to experience and thus her pain had become constant in nature. (Ex. 9, p. 31) Dr. Milas opined that claimant sustained a change in her condition occurring after the lumbar laminectomy in November of 2003. Dr. Milas found claimant’s permanent functional impairment pursuant to the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition falls under the DRE lumbar category IV which is 23 percent of the whole person. (Ex. 9, p. 32)
Dr. Milas opined that claimant’s complaints of pain and numbness as recorded in his report are related to the original accident involving the lifting of a couch on February 29, 2000. (Ex. 11, p. 35) Dr. Milas attributes the cause of claimant’s deterioration to arachnoiditis which is known to occur in an area of disc herniation with consistent compression of the neural elements at that level. Specifically the disc tissue causes considerable scarring at the site of the disc herniation. (Ex. 9, p. 32) Dr. Milas opines that as a result of her condition on November 18, 2005 that claimant should be restricted to a sedentary type of occupation.
Defendants obtained the services of Kenneth McMains, M.D., with Allen Occupational Health, to first perform a records-only evaluation of claimant and later sought his services for a report following an evaluation of claimant. (Tr., p. 79) Following his record review Dr. McMains opined in a letter of November 29, 2005 that it was his opinion based upon the extensive history of low back pain and bilateral leg involvement requiring repeated ER visits and treatment over a period of 10 years that claimant did not suffer a permanent partial impairment due to an exacerbation of her low back when lifting on February 29, 2000. (Ex. O, p. 47) He further opined that if claimant did aggravate her preexisting back condition he would apportion out 90 percent of this as being preexisting and 10 percent being the aggravation. Dr. McMains refused to place any restrictions on claimant resulting from the industrial accident of February 29, 2000. Dr. McMains sophistically announces that his opinions are more credible than this agency’s prior legal conclusions as “most of the decision making that occurred in 2003 was based on a faulty record review.” (Ex. O, p, 47) In concluding his report of November 29, 2005 Dr. McMains writes that claimant was assigned a 20 percent industrial disability from the February 29, 2000 event and that disability leads one to believe that there was an injury occurring on that date that led to some permanent condition. Dr. McMains refutes this agency’s legal conclusion and states that the records clearly note that there was no new injury occurring on that date [February 29, 2000], but rather a recurrence of symptoms dating back at least 12 years. (Ex. O, p. 48)
In the subsequent report dated December 15, 2005 – following his examination of claimant – Dr. McMains continued to report that claimant had no need for restrictions relating to her reported injury of February 29, 2000. Dr. McMains noted that in reviewing the medical records claimant reported to Dr. Ramos that following the surgery she is no better and in fact, she feels that her condition has deteriorated since surgery. (Ex. O, p. 44) Dr. McMains did reduce his impairment rating following the examination to a 0 (zero) percent whole person impairment rating. (Ex. O, p. 45) Dr. McMains disagreed with both Dr. Ramos and Dr. Milas regarding the necessity of claimant’s surgical procedure. (Ex. P, depo., p. 48)
Dr. McMains was deposed for purposes of litigation on January 4, 2006. In the course of his deposition it was elicited that Dr. McMains applied for, but was denied admission to the medical schools to which he applied in the United States. (Ex. P, depo. p. 54) As a result, Dr. McMains attained his medical education at the University of Guadalajara in Mexico. (Ex. P, depo., p. 3) Dr. McMains does not, however, speak conversational Spanish. (Ex. P, depo., p. 12) Dr. McMains is not board certified, despite being board eligible, in the field of occupational medicine. (Ex. P, depo., p. 4) Dr. McMains used to practice in family medicine. He is not currently board certified in family medicine. (Ex. P, depo., p. 19) Dr. McMains is employed by AllenHospital in Waterloo, Iowa and provides acute care for approximately 3,000 companies in northeast Iowa from referrals from managed care nurses, insurance companies, and attorneys. (Ex. P, depo., p. 14)
Prior to his record review and written opinions Dr. McMains was provided with a copy of this agency’s arbitration decision. (Ex. P, depo., p. 18) Dr. McMains testified that none of the exhibits he reviewed relating to the arbitration proceedings noted prior medical treatment involving claimant’s back or involving prior accidents. (Ex. P, depo., p. 26)
Dr. McMains testified that he believed he had charged defendants probably around $500.00 for his involvement in this case. (Ex. P, depo., p. 29) Billing records establish that Dr. McMains actually charged defendants $300.00 per hour or $1,500.00 for his record review opinion of November 29, 2005. No billing statement was included in the record for his physical examination of claimant and his follow up report.
At the time of the review-reopening hearing claimant testified that she was having significant problems with low back pain and pain radiating down into both of her legs. (Tr., p. 44) Further, claimant testified that at the time of the review-reopening hearing she was having problems walking and sitting and that it hurt her quite a bit to do those activities. (Tr., p. 44)
Claimant testified that in November 2004 that she was having difficulties with prolonged sitting. She could not sit for long periods of time before her surgery and she still has problems sitting for longer periods of time following her surgery. (Ex. A, depo., p. 21) Claimant did note that as of November 2004 that her pain had been reduced by the surgery, but it is still there. (Ex. A, depo., p. 21) Claimant acknowledged that she did have both good days and bad days. (Ex. A, depo., p. 27)
At the review-reopening hearing claimant conceded that her symptoms on the day of the review-reopening hearing were basically the same as the symptoms she had at the time of her original arbitration hearing. (Tr., p. 46) Claimant agreed at the review-reopening hearing that she testified in her deposition taken in November 2004 that following her surgery her pain had decreased. (Tr., p. 57) She further testified in that same deposition that there had been an improvement since the surgery in her ability to do regular things that she does around her home. (Tr., p. 57) Claimant testified on re-direct examination that although she felt better for a period of time after the surgery of November 6, 2003 that as time went by she started feeling the same way as before the surgery. (Tr. p. 74)
At the time of the arbitration hearing claimant had been employed for a Mexican restaurant in Texas called Flores Tacos where she worked putting meat into taco shells. (Ex. A, depo., p. 6) At the time of the review-reopening hearing claimant works in her home making chicken, meat, tacos and seasoned meats for schools and others who order her food. (Ex. A, depo.,p. 4; Tr., p. 30) While performing this work she can take breaks as she needs to and then return to her activities. As a result of working out of her home claimant’s income has decreased. (Tr., p. 32) Claimant testified that she works at home on a part-time basis because it allows her to be close to her home and with her children. Two of her daughters assist her in preparing and delivering her food products. (Tr., p. 47) Claimant testified that she does not plan to work out of her home for the rest of her life. Rather she has plans to go to school as she would want to be a nurse assistant and that she would like to get a certificate for that. (Ex. A, depo., p. 36) In looking for work since her surgery claimant has only been seeking positions which are half time, as opposed to full time positions. (Ex. A, depo., p. 40).
Claimant believes that Dr. Ramos has suggested that following an MRI of March 2005 that she may need further back surgery including a fusion or instrumentation insertion. (Tr., p. 37) There is no medical documentation in evidence confirming claimant’s understanding of Dr. Ramos’ purported opinion. The only evidence from Dr. Ramos is his written opinion that claimant would be disabled for a one year period as a result of the November 2003 surgery. (Ex. M., p. 30) It is found that it is not reasonably anticipated, based upon the current record, that claimant will require additional surgical intervention for her lumbar spine condition.