LOWE V. HUBBARD CARE CENTER
Page 5
before the iowa workers’ compensation commissioner
______
:
KAREN LOWE, :
:
Claimant, :
:
vs. :
: File No. 1231530
HUBBARD CARE CENTER, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
EMC INSURANCE COS., :
:
Insurance Carrier, :
Defendants. :
______
STATEMENT OF THE CASE
This is a contested case proceeding in arbitration under Iowa Code chapters 85 and 17A. Claimant, Karen Lowe, claims to have sustained a work injury in the employ of defendant Hubbard Care Center on October 25, 1997. She accordingly seeks benefits under the Iowa Workers’ Compensation Act from Hubbard and its insurance carrier, EMC. Defendants deny liability.
The case was heard and fully submitted in Des Moines, Iowa, on September 29, 2000. The record consists of Lowe’s exhibits 1-46, defendants’ exhibits A-H and the testimony of Lowe, Jason Lowe, Heather Kading, Carol Tjarks, Crystal Stockdale and Mary Knutson (at the trial), along with Ernest M. Found, Jr., M.D. (deposition, August 22, 2000) and Kathryn C. Hall, M.D. (deposition, August 16, 2000).
ISSUES
STIPULATIONS:
1. An employment relationship existed between Lowe and Hubbard Care Center on October 25, 1997.
2. Lowe has been off work during the periods she claims as temporary disability: October 25, 1997 – August 19, 1998 (relating to a back injury claim) or October 25, 1997 to date (mental injury claim).
3. Permanent disability, if any, should be compensated by the industrial method (loss of earning capacity).
4. The correct rate of weekly compensation is $159.00.
5. Disputed medical (psychiatric) treatment and associated costs are reasonable, necessary, and causally linked to the medical condition upon which Lowe in part bases her claim.
ISSUES FOR RESOLUTION:
1. Whether Lowe sustained injury arising out of and in the course of employment.
2. Whether the injury caused temporary and/or permanent disability.
3. Healing period or temporary total disability entitlement.
4. Extent and commencement date of permanent disability.
5. Entitlement to medical benefits under Iowa Code section 85.27.
6. Entitlement to an independent medical evaluation under Iowa Code section 85.39.
FINDINGS OF FACT
On October 25, 1997, Karen Lowe was employed by Hubbard Care Center as a certified nurse aide. According to Lowe, she was injured on that date while helping to move a sick patient from his bed to an ambulance gurney so he could be taken to a local hospital. Lowe described her position as partially on the bed (her knees), while lifting the patient in the buttocks area. Doing so, she reports, led to a “big pop” in the low back and instant pain. Lowe reacted by exclaiming audibly at the time.
Lowe testified to becoming increasingly sore during her shift, but finishing out the day. She claims to have been unable to work on the next day, and coming in to report the injury on October 28. When she did so, it is alleged, she was immediately discharged from employment.
Over the next month, Lowe’s pain got gradually worse and she developed radiating pain down the front of her left leg to the knee. By November or December, she was spending most of her time in a wheelchair. She developed depression and was hospitalized in December. In January 1998 Lowe attempted suicide and was eventually transferred to inpatient care at the University of Iowa Hospitals and Clinics. While there, she was also seen for back pain and an MRI scan taken February 9 disclosed a posterolateral disc protrusion at L3-4. A surgical repair was performed by L.J. Grobler, M.D., on May 19. Residual impairment exists, and Lowe remains out of the competitive labor market by reason of ongoing psychological difficulties.
However, Lowe’s version of events is in numerous respects inconsistent with other record evidence, starting with the events of October 25, 1997.
Assisting Lowe with the transfer were Carol Tjarks, another certified nurse aid, and two members of the ambulance crew. Registered nurse Crystal Stockdale was also present. As it happened, the patient was Tjarks’ former father-in-law, so it is reasonable to suppose that her memory of events is likely to be better than if the patient were unknown. Tjarks testified that she was at the patient’s head and that Lowe lifted the patient’s feet, below the knee – and did not have significant weight to move. She says that nothing happened during the transfer, and that Lowe did not exclaim or otherwise say anything about sudden onset of back pain. Lowe did not mention back pain during the rest of the shift (this occurred near the end of the shift), and said nothing about an injury the next day. Care Center records, by the way, show that Lowe did work on October 26.
According to Tjarks, a completely disinterested witness, Lowe was known to have back problems prior to the alleged injury. In fact, on the very morning of October 25, shortly after breakfast, Tjarks overheard Lowe making a telephone call to her boyfriend, asking him to bring her some pain pills because her back was hurting. Lowe concedes that she did make such a call, but says it was after the lifting incident, not in the morning.
However, that claim does not really make sense. Since the lifting incident occurred shortly before the end of her shift, why would Lowe call her boyfriend with a request for medications at that late hour, rather than simply waiting for the shift to end? Tjarks’ version of events is much more credible. Tjarks also testified that she had a conversation with Lowe about a week later, and that Lowe said she had quit her job because she was tired of “putting up” with conditions.
Crystal Stockdale agreed that Lowe assisted from the patient’s feet and also testified that Lowe did not say anything about her back hurting.
Lowe first sought medical care from her family doctor, Keith L. Hansen, D.O., on October 28. Dr. Hansen noted complaints of severe low back pain and recorded that Lowe experienced a “pop” in the lower back while lifting a patient onto a gurney, and that the condition had become increasingly painful. Dr. Hansen prescribed medications and released Lowe to return to work.
Dr. Hansen saw Lowe for a number of health problems on November 20 and December 1, 1997, and January 16 and March 20, 1998. No mention of back pain complaints appears in the chart notes for any of those dates, although it is interesting that Lowe told Dr. Hansen she had quit her job at Hubbard Care Center.
CONCLUSIONS OF LAW
Claimant has the burden of proving by a preponderance of the evidence that the alleged injury occurred and that it arose out of and in the course of employment, McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words “arising out of” refer to the cause or source of the injury. The words “in the course of” refer to the time, place and circumstances of injury, Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971).
There is no question that Karen Lowe had a serious back condition, at least in early 1998. It is, however, her burden to prove that it originated or was significantly exacerbated in a work incident such as she alleges occurred on October 25, 1997.
The burden of persuasion in this case has not been met. The more convincing evidence is that Lowe experienced pain early in the day significant enough that she phoned her boyfriend to request medications, that she lifted the patient from his feet (a light load), that she did not exclaim or mention any onset of back pain, that she worked the next day without complaint, and that the first mention of a claimed work injury was on October 28 – when she quit her job, rather than being fired. In short, no compensable work injury has been proven. Defendants accordingly prevail.
ORDER
THEREFORE, IT IS ORDERED:
Lowe takes nothing.
Costs are taxed to Lowe.
Signed and filed this ______day of March, 2001.
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DAVID RASEY
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
Copies to:
Mr Martin Ozga
Attorney at Law
6959 University Ave
Des Moines IA 50311
Mr E J Giovannetti
Attorneys at Law
2700 Grand Ave STE 111
Des Moines IA 50312