BENNETT V. PELLA CORP.
Page 10
before the iowa WORKERS’ COMPENSATION commissioner
______
:
MARIE BENNETT, : File No. 1232000
:
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
PELLA CORPORATION, :
:
Employer, :
Self-Insured, :
Defendant. :
______
STATEMENT OF THE CASE
Marie Bennett, the claimant, seeks workers’ compensation benefits from defendant, Pella Corporation, a self-insured employer. Presiding in this matter is Larry P. Walshire, a deputy Iowa workers’ compensation commissioner. I heard the claim on September 12, 2000. The oral testimonies and written exhibits received during the hearing are set forth in the hearing transcript.
The parties agreed to the following matters in a written hearing report submitted at hearing:
1. An employee-employer relationship existed between claimant and Pella Corporation at the time of the alleged injury.
2. Claimant is seeking temporary total or healing period benefits only from March 19, 1999 through May 2, 1999; and defendants agree that she was off work during this period of time.
3. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole.
4. If I award permanent partial disability benefits, they shall begin on May 3, 1999.
5. At the time of the alleged injury, claimant's gross rate of weekly compensation was $572.00. Also, at that time, she was married and entitled to five exemptions for income tax purposes. Therefore, claimant’s weekly rate of compensation is $381.58 according to the Workers’ Compensation Commissioner’s published rate booklet for this injury.
6. Medical benefits are not in dispute.
ISSUES
The parties submitted the following issues for determination in this proceeding:
I. Whether claimant received an injury arising out of and in the course of employment;
II. The extent of claimant's entitlement to disability benefits.
III. The extent of claimant's entitlement to medical benefits.
IV. The extent of claimant’s entitlement to penalty benefits.
FINDINGS OF FACT
In these findings, I will refer to the claimant by her first name and to the defendant employer as Pella Corp.
From my observation of her demeanor at hearing including body movements, vocal characteristics, eye contact, and facial mannerisms while testifying; in addition to consideration of the other evidence, I find Marie credible.
Marie has worked for Pella Corp., a manufacturer of windows, since 1986 and she continues to do so at the present time. Although she has held numerous jobs at Pella Corp. over the years in departments such as td line, screens, architect series and paint line, most of the work which Marie claims to be the source of her injury in this case involves the circle head department. In this department, Marie’s work primarily involved the operation of various machines such as the special (sam & tom) saws, standard saw and “round O” along with tasks in support of such work such as carrying and placing wood or metal components into the machines, stocking cages and set up. Placing the wood or metal components into machines, she states requires considerable bending and stooping along with repetitive lifting of parts weighing up to 30 pounds which varies with the type of product being manufactured. Set up, Marie states, includes frequent adjusting saw heads to various angles. Marie asserts that this adjustment is not easy and requires considerable jerking and pulling, as the mechanism does not operate smoothly. Marie claims that she complained frequently about this aspect of her job. Indeed, a formal written complaint in May 1998 (termed an ergonomic report) appears in the record. Marie’s credible testimony concerning her work at Pella Corp. and in circle head is largely uncontroverted in the record. Although her supervisor in circle head, Jeff Kruse; and his superior, Carson Landsgard; disagree on the frequency of the saw head adjustments, their testimony establishes that the adjustments are made several times each hour. Landsgard admits that parts handled by Marie do exceed 20 pounds. Since her claimed work injury, Marie has transferred to a shipping clerk job which she states is much lighter duty and more suitable to her claimed disability.
Marie asserts that suffered a back injury while working in circle out. She stated that symptoms arose gradually over time. She first experienced problems in 1996 but these subsided. Her back problems arose again in August 1997 after moving to a new area with reduced staffing and she complained to her supervisor and manager, Ron Berg. These problems continued on a come and go basis into early 1998. However, in the spring of 1998 they worsened and began to extend into her legs. The ergonomic report in May 1998 reported back and hip pain from the saw head adjustments. However, Marie did not seek treatment from the plant nurse and continued working. After returning from leave following her brother’s death, Marie stated that the back problems increased to the point that she told her supervisor she could no longer perform the circle out work and she reported to the plant nurse. At that time she was referred to a family doctor who prescribed physical therapy and lighter duty until she was seen by Daniel Vandelune, M.D., an orthopedic surgeon. Marie was taken off her circle out work as it exceeded the light duty restrictions. On August 3, 1998, Marie was evaluated by Dr. Vandelune describing pain to him extending from the low back to the right foot from pulling and jerking on saws at work. Dr. Vandelune’s assessment was low back pain with a preexisting grade II, L5-S1 spondylolisthesis (slippage of the vetebra). He continued physical therapy and light duty consisting of no lifting over 20 pounds and avoidance of repetitive turning, stopping, bending, or lifting. Marie remained on her lighter duty work at Pella Corp. When symptoms continued into mid-September 1998, Dr. Vandelune felt that she should be evaluated by a spine surgeon and he referred her to Cassim Ingram, M.D. Dr. Ingram agreed with the diagnosis of a pre-existing spondylolisthesis and prescribed use of a back brace and continued physical therapy but no surgery. He then referred Marie for pain management to Donna Bahls, M.D. Dr. Bahls evaluated Marie in October 1998; she continued physical therapy until mid-November 1998. Essentially, her involvement ended when Marie obtained the lighter duty shipping clerk job that was more suitable for her.
On her own initiative, Marie sought further treatment in early 1999 from another orthopedic surgeon, William R. Boulden, M.D. When initial conservative therapy failed to improve Marie’s symptoms, Dr. Boulden performed surgery in March 1999, which compelled Marie to be off work for the stipulated period of time in the hearing report. This surgery, consisting of a fusion of the unstable vertebrae, has improved Marie’s symptoms and she has done well upon her return to the shipping clerk position. She remains in this clerk position at the present time.
Pella Corp. denies that any of Marie’s back problems are work related relying upon the views of Dr. Vandelune. Dr. Bahls felt that Marie at least suffered an aggravation of her nonwork-related preexisting back condition. Dr. Vandelune denies that her Pella Corp. work even aggravated the spondylolisthesis, although he admitted in his deposition that vigorous back activity or hyperextension can precipitate symptoms in persons with this condition. Dr. Ingram did not express an opinion on any aggravation issue. In his reports and deposition testimony, Dr. Vandelune based his opinion upon a review of a videotape submitted to him allegedly depicting Marie’s job at Pella Corp. The doctor opines that such activity is insufficiently vigorous to precipitate problems.
This videotape was prepared by Pella Corp. management on August 5, 1998, after Marie’s first appointment with Dr. Vandelune. This tape shows a male coworker performing various tasks in using radial arm type saws to cut pieces of wood framing varying in length from approximately two to four feet. Marie states that tape only depicts limited activity on the special saws. She states that this tape insufficiently depicts the frequent and difficult adjustments to the saw head, the operation of other saws and equipment and the extent of the repetitive bending and lifting. She said that she signed a statement that it was accurate but only after assurance by manager, Lansguard, at the time that a another tape would be prepared to more accurately depicted her job duties. Pella Corp. officials all agree that a second tape was indeed prepared but that it was never provided to Dr. Vandelune. At present, everyone denies knowledge of the current location of this second tape. Marie testified that she was told it was lost. Landsguard claims to have provided this second tape to Marie to take to one of her physicians. Apparently, a third tape was not attempted by Pella Corp. Supervisor Kruse testified in his deposition that he has not seen the full first tape but that he felt what he saw was an accurate depiction of the tasks involved in operation of the special saws. However, he admitted that the tape does not depict all of Marie’s work tasks while working in circle out. Landsguard also claims that the tape is accurate for the special saw work.
Despite knowledge that Marie disputes the accuracy of the first videotape in depicting the full extent of her duties, Dr. Vandelune in this deposition does not change his opinion nor did he make any effort to secure a more correct depiction. In his deposition testimony, Dr. Vandelune upon challenge continued to refer to this first videotape as a basis for this decision that Marie had suffered no aggravation injury. Although he never mentioned it as a basis for his opinion that Marie’s problems are not work related, Dr. Vandelune did express knowledge of statement by a person who observed Marie performing some non-work physical activity in July 1998. This person, who was a Pella Corp. manager, testified at hearing that he observed Marie throwing some boards and material into the back of pickup near her home in Pleasantville, Iowa. He did not know the amount or type of materials thrown or how long she may have done this activity. This was apparently reported after he overheard his superior talking about Marie claimed back injury in early August 1998.
After his review of the first videotape, Dr. Boulden found that Marie’s job entailed a fair amount of bending, side bending, and twisting. He felt that such activities could be stressful in nature, especially for a person with an unstable segmental spine. Dr. Boulden adds that he believes that Marie’s work at Pella Corp. precipitated the radicular symptoms and that his surgery was performed to relieve these symptoms. Consequently, he causally relates the surgery to the work activities and to a significant permanent partial impairment to the whole body caused by the fusion surgery. The doctor also recommends permanent activity restrictions of no repetitive bending, twisting, or lifting with her back. As she is continuing to work in her shipping clerk job, the doctor would not impose any more specific restrictions. Dr. Boulden adds, however, that given her preexisting back instability, he would have placed these activity restrictions upon her before the onset of her work-related radicular symptoms, apparently to avoid any work injury.
I find that Marie has shown that she suffered a work injury on July 28, 1998, by her credible testimony combined with the views of Dr. Boulden. I do not find the views of Dr. Vandelune convincing or credible. I do not find that the first videotape is a correct depiction of her full duties at Pella Corp while working in circle out. My review of the tape shows that such work does involve repetitive bending, twisting, and lifting. However, based upon the views of Marie’s supervisor, it does not show the full breath of all of the tasks assigned to her in circle out.
Dr. Vandelune’s actions in this matter demonstrate a lack of medical objectivity to the extent that his views must be wholly rejected. He expresses personal knowledge of matters not contained in his office notes. He made no attempt to learn what his patient, Marie, felt was a correct history. He chose instead to accept over the word of his patient, information provided to him by Pella Corp. While personally viewing of the videotape in evidence (the first tape prepared by Pella Corp.), I observed that on a couple of occasions, various saw adjustments were made requiring use of a large man’s full body weight in a jerking motion to move the saw head. To reject this as not being sufficient for a much smaller women to possibly aggravate her unstable back is incredible. To do so without question after a patient asserts that the amount of jerking is much greater shows a lack of objectivity. Finally, Dr. Vandelune admits in his office notes that he is not a spinal surgeon and that he needed a consultation from such a specialist about Marie’s condition. On the other hand, Dr. Boulden is a board certified specialist who actually performs spinal surgery.
Although I find a work injury, I am unable to find that this work injury resulted in any permanent industrial disability or lost earning capacity. The injury simply aggravated a preexisting condition. Admittedly, Dr. Boulden opined that his permanent impairment rating is due to the surgery which was necessitated to relieve work-related symptoms and his subsequently imposed work activity restrictions. However, the doctor added that he would have placed upon Marie these same restrictions before her injury due to her preexisting back instability. In other words, she was incapable of performing circle out work without injury before she started in circle out. The surgery simply returned her condition to the same asymptomatic state as it was before the aggravation injury of July 1998.