Before the iowa workers’ compensation commissioner



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BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER

______________________________________________________________________

:

DEB BROM, :



:

Claimant, : File No. 5042761

:

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



:

PELLA CORPORATION, : D E C I S I O N

:

Employer, :



Self Insured, :

Defendant. : Head Note No.: 1100

______________________________________________________________________

STATEMENT OF THE CASE

Claimant, Deb Brom, has filed petitions in arbitration and seeks workers’ compensation benefits from the Pella Corporation, self-insured employer, defendant.

Deputy workers’ compensation commissioner, Stan McElderry, in Des Moines, Iowa, heard this matter on August 10, 2014.

ISSUES

The parties have submitted the following issues for determination:



  1. Whether the claimant suffered an injury on February 21, 2011, which arose out of and in the course of employment;

  2. Whether the alleged injury is a cause of a temporary disability during a period of recovery;

  3. Whether the alleged injury is a cause of permanent disability;

  4. Weekly gross earnings for calculation of rate;

  5. Whether the claimant is entitled to payment of medical expenses;

  6. Credits; and

  7. Penalty.

FINDINGS OF FACT

The undersigned, having considered all of the evidence and testimony in the record, finds:

The claimant was 61 years old at the time of hearing. She is a high school graduate, and has a CNA certificate. She began working for Pella Corporation (generally hereafter referred to as employer) in 1996 on the production line. In 2000 the claimant was made a facilitator, also known as production coordinator, a position greatly less physically demanding than actual line production. In 2007 and 2010, the claimant sought and received leave of absences due to back pain, which was not designated as work related. She used at least 4 days of FMLA in September of 2010, 4 days in October of 2010, and 4 days in December of 2010. In the fall of 2010, the claimant was removed from the facilitator position; claimant states it was a difference of opinion with management, but it appears to have been due to a breach of confidentiality. (Exhibit X, page 241) She called in sick on January 19, 2011, saying she threw her back out when she slipped outside. (Ex. X, p. 251) She missed numerous days in February 2011 stating it was due to her back. She applied for short term disability on March 1, 2011 via the Pella group plan for non-occupational conditions. (Ex. X, p. 252)

On March 2, 2011, Allan Peterson, M.D., notes that the claimant wanted a referral to Chad Abernathy, M.D., an orthopedic surgeon. Dr. Peterson charted “CHRONIC SX AND NO OR DIFFERENT SX . . . .” (Ex. H, p. 74) Dr. Abernathy saw the claimant on March 9, 2011 and recommended a new MRI. (Ex. 4) The MRI was performed and Dr. Abernathy found it unremarkable. (Ex. 4, p. 96) Dr. Abernathy noted that the claimant told him that she did not feel she was employable any longer. (Ex. 4, p. 96) On March 31, 2011, the claimant told the Pella plant nurse that Dr. Abernathy told her that she had “severely torn muscles.” (Ex. F, p. 31) Dr. Abernathy’s records do not support such a statement.

The claimant was sent to see Joseph J. Chen, M.D. (Ex. 3) Dr. Chen did not feel that the claimant had experienced more than a temporary exacerbation of pre existing myofascial pain. (Ex. B) Ester Benedetti, M.D., performed two branch block procedures on the claimant. (Ex. 3, pp. 67-76) On February 12, 2012, the claimant underwent a radiofrequency nerve ablation (RFA) procedure. (Ex. 3, pp. 80 84) Soon after, the claimant was seen by Sunil Bansal, M.D., for an independent medical evaluation (IME) at claimant’s counsel’s request. (Ex. 7) Dr. Bansal noted that no permanent work restrictions had been assigned at that time. (Ex. 7, p. 111) Dr. Bansal did not see all records including the RFA report. Dr. Bansal wrote that the injury was marked by a sudden, sharp pain, in claimant’s low back. (Ex. 7, pp. 103, 112) That is not supported by the records or claimant’s testimony. In fact, Dr. Bansal’s report is replete with statements not supported by other records. (Ex. 7, p. 113 et al.)

The claimant saw John Kuhnlein, D.O., at defendant’s request on July 23, 2013. (Ex. A) Dr. Kuhnlein’s report is a much more accurate report of events than is Dr. Bansal’s report. Dr. Kuhnlein concluded that the claimant suffered no new injury or material aggravation on or about the report work injury date herein. (Ex. A, pp. 12-13) The opinions of Dr. Kuhnlein are accepted.

The claimant had gross wages of $804.45 per week if the service bonus is excluded, and $900.31 if the bonus is included. The claimant was single and entitled to 1 exemption of the date of her alleged injury. The service bonus has been paid every year since at least 1979, it is calculated based a formula based on years of service and wages. It is payable to the heirs or estate of a worker who dies during the year even if the bonus is not yet payable. It is a regular bonus and a substantial portion of the wage package of the employer’s employees. To exclude it would not accurately reflect the worker’s actual earnings.

REASONING AND CONCLUSIONS OF LAW

The first issue is whether the claimant suffered an injury arising out of and in the course of employment.

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 Rule of Appellate Procedure 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 Elec. 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).

The opinions of Dr. Kuhnlein and other doctors herein that the claimant suffered no new injury or substantial (material) aggravation on or about the claimed date of injury were accepted. Therefore there is no work injury herein. All other issues are therefore moot. 

ORDER


THEREFORE, IT IS ORDERED:

That the claimant take nothing.

Costs are taxed to the claimant pursuant to rule 876 IAC 4.33.

Defendant shall file subsequent reports of injury as required by the agency.

Signed and filed this __24th __ day of October, 2014.

STAN MCELDERRY
DEPUTY WORKERS’
COMPENSATION COMMISSIONER


Copies To:


Jean Mauss

Attorney at Law

6611 University Ave., Unit 200

Des Moines, IA 50324-1655

jmauss@smalaw.net
David L. Jenkins

Attorney at Law

801 Grand Ave., Ste. 3700

Des Moines, IA 50309-2727



jenkins.david@bradshawlaw.com
SRM/srs




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