MERKES V. MERCY HOSPITAL OF CEDAR RAPIDS, IOWA
Page 1
BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______
:
CHRISTINA MERKES, :
:
Claimant, :
:
vs. :
: File No. 5012019
MERCY HOSPITAL :
CEDAR RAPIDS, IOWA, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
UNITED FIRE GROUP, :
: Head Note Nos.: 1802, 1803, 2700
Insurance Carrier, :
Defendants. :
______
STATEMENT OF THE CASE
Christina Merkes filed a petition in arbitration seeking workers' compensation benefits from Mercy Hospital, Cedar Rapids, defendant-employer, and United Fire Group, defendant insurance carrier, as the result of an injury sustained on December15, 2003, which arose out of and in the course of her employment. This matter was heard and fully submitted to deputy workers' compensation commissioner, Anne M. Garrison, on May 26, 2005, in Cedar Rapids, Iowa. The evidence in this matter consists of claimant’s exhibits 1 through 14, defendants’ exhibit A, and the testimony of claimant, Christina Merkes, Lu Rie Fairlie and Dixie Frank.
ISSUES FOR RESOLUTION
1.Whether claimant is entitled to temporary disability benefits from March18, 2004 through December18, 2004;
2.The extent of industrial disability resulting from the injury;
3.Commencement date for permanent partial disability benefits;
4.Whether claimant is entitled to alternate medical care pursuant to section 85.27 of the Iowa Code; and
5.Whether claimant is entitled to penalty benefits.
The parties stipulated that the alleged disability is an industrial disability. The parties further stipulated at the time of the injury claimant was married and entitled to seven exemptions. The stipulated weekly rate of compensation is $450.26.
FINDINGS OF FACT
The deputy workers' compensation commissioner, having heard the testimony of the witnesses and considered the evidence in the record finds that:
Claimant, Christina Merkes, was 32 years old at the time of hearing. She is married and has five children. Christina dropped out of high school in the 11th grade due to the pregnancy of her second child. She was 15 years old when she had her first child. Christina had three children before she turned 21 years of age. Her first marriage ended in a divorce and she remarried. She had another child with her husband who had a difficult birth and has had cognitive difficulties. The Merkes have also adopted a child who has lived with the family since birth.
Christina earned her G.E.D. and later enrolled in a certified nurse assistant (C.N.A.) sixweek course. Christina started her registered nursing (RN) degree in 1995 but had to drop out. She then enrolled at Northern Iowa Community College in the RN program. She chose to do the three-year program instead of the two-year program, which included more electives. She only took one summer off during her program and earned her RN degree in December 2002. Christina passed her nursing boards in February 2003.
Christina’s employment history includes working security at Menard’s and Finley Hospital; telemarketing, and as a tech at a psychiatric hospital. Christina worked as a parttime LPN while in nursing school. The LPN position paid $6.55 per hour. Christina testified that her husband worked three jobs so Christina could finish school.
Christina’s first RN position was with Mercy Hospital. She began in March 2003, earning $17.00 per hour with a second shift differential of $1.60; and a third shift differential of $1.80. Christina also had the customary health and retirement benefits.
Christina gave compelling testimony describing how excited she and her husband were after she passed her nursing boards and landed her first RN job. They were now going to have financial security for their family. I found Christina to be proud of her educational accomplishments, especially in light of her difficult teenage years and the responsibilities she faced raising five children.
Christina began on the “medical” or fourth floor at Mercy. She assisted patients in a broad area of medical needs: wound care, medication administration, assessments, and pre-operative preparation. Christina enjoyed her work as an RN. She enjoyed working with ill patients, educating them, and seeing their improvement.
Christina’s plan was to become a school nurse to coordinate her work schedule with her kids’ school schedule. To gain experience for that type of job she was to start a second job with the Visiting Nurse Association’s (VNA) community health program. This job required performing school audits, health education, immunization clinics and administering the WIC program. Christina testified that “life was great” at this point in time.
On November 19, 2003, her first day at the VNA, Christina slipped and fell on her deck. She injured her back and upper shoulders. She testified that she remembers laying on the deck and feeling air on her stomach where her shirt had slipped up. She believed she had hit her head and may have lost consciousness. Christina when to work that day and subsequently saw her personal physician, Michael D. McKenna, M.D.
On November 21, 2003, Dr. McKenna found on physical examination Christina had “exquisite reproducible discomfort throughout the trapezius and cervical paraspinal musculature.” (Exhibit 2, page 19) She had discomfort along the entire length of the thoracic, lumbar and sacral paraspinal musculature, with less discomfort over the posterior bony prominences. Straight leg raises were negative. Dr. McKenna found there were no reproducible neurologic deficits. Cervical x-rays were negative. (Ex. 2 p.23) The assessment was:
1. Significant contusion and hyperextension injury;
2.Her injuries appear muscular and ligamentous in origin. I do not appreciate any evidence for bony abnormalities.
(Ex. 2, p. 19)
Dr. McKenna prescribed Lortab and Flexeril and possible physical therapy. Christina was taken off work for a few days and indicated that she was going to rest throughout the weekend. There is a handwritten note in the chart dated November 24, 2003, indicating a call from Christina that her neck is feeling better but that it still feels tight. The Lortab and Flexeril were making her sleepy so Dr. McKenna prescribed ibuprofen with the Flexeril. Christina was instructed to return to work and if she needed more time off to let the doctor know. (Ex. 2, p. 20)
On December 15, 2003, Christina injured her back at work while repositioning an obese patient. Christina described the method for turning patients. A draw sheet is used to roll patients to prevent injury. The patient is lifted up and then rolled. The nurses perform the roll at waist level with their arms lifting over the bed rails. Christina testified that she believed the patient weighed over 300 pounds. When she attempted to lift the patient she felt a shooting pain in her low back. She had to ask two other nurses to assist in the repositioning. Christina felt spasms down her leg. She was able to finish the assessment of the patient and then informed her supervisor that she injured her back while lifting the patient. Christina was seen in the emergency room.
The emergency room record notes Christina had stabbing pain in her low back and that she had numbness shooting down her legs. The deck fall two weeks earlier is noted in the record. (Ex. 4, p. 32) Muscle spasm in the back with tenderness was found on physical examination. (Ex. 4, p. 34) X-rays of the lumbar spine showed a grade I spondylolisthesis at L5-S1. (Ex. 4, p. 40) Views of the thoracic and cervical spine were normal. (Ex. 4, p. 41) Pain medications were prescribed.
Christina was seen by David Durand, D.O. in the occupational medicine clinic at the Physician’s Clinic of Iowa on December 19, 2003. Christina reported that she was having pain in her neck and back with numbness in both lower extremities, the left more painful than the right. She relayed the fall on the deck and it is noted in the record that she stated she was recovering well from that incident. (Ex. 5, p. 46) Dr. Durand found significant discomfort in the lower portion of the lumbar spine, but no increased muscle tension in that area. Dr. Durand assessed neck and back pain and instructed Christina to stay on her medications. On recheck on December 22, Christina showed some improvement of her symptoms. She was still having pain in the left lower extremity to the level of the toes. Dr. Durand found increased tension in the lumbar paravertebrals overlying the left quadratus lumborum muscle at the L1 level. (Ex. 5, p.47) Assessment was the same and medications were continued. Dr. Durand kept Christina off work and ordered physical therapy.
On December 29, Dr. Durand found significant improvement of Christina’s low back pain. Physical therapy had been beneficial. (Ex. 5, p. 47) Radiographs of the lumbar spine were ordered and submitted to radiology for an over-read due to Dr.Durand’s difficulty in reading the spondylolysis at L5. The assessment was lumbar and thoracic back pain. Christina was to do physical therapy for one more week. Dr.Durand released her to light duty with a weight lifting limit of two pounds, position changes and limit to four hours work per day. (Ex. 5, p. 61)
Christina returned on December 31. She was unable to tolerate the light duty due to the significant pain in her low back and numbness and tingling in her left leg. Dr.Durand found flexion in the back of 15 to 30 degrees; increased tenderness in the lumbar paravertebrals without increased tenderness in the muscles. Dr. Durand ordered a CT scan of the lumbar spine, specifically the L5 area to determine whether spondylolysis/spondylolisthesis was indeed present. (Ex. 5, p. 49) Dr. Durand took Christina off work and continued her pain medications. (Ex. 5, p. 62)
The January 5, 2004 CT scan of the lumbar spine showed chronic unilateral left sided L5 spondylolysis with osteophytic spurring at the margins; incomplete fusion of the L5 spinous process posteriorly; and mild annular disc bulge L5-S1 mildy effacing the perineural fat but without demonstrated focal extrusion. (Ex. 4, p. 43) Dr. Durand performed soft tissue and HVLA osteopathic manipulative techniques to the involved areas. Christina had marked improvement on the right side with mild improvement on the left side. Dr. Durand released Christina to restricted duty as of January 6, 2004 and continued the physical therapy and medications. (Ex. 5, p. 49)
MRI of the lumbar spine of January 12 showed a Pars defect with mild anteriolisthesis; and no significant disc bulges. (Ex. 4, p. 44) Christina’s work restrictions were two pounds lifting, position changes and two hours work per day. (Ex.5, p. 64) Christina returned to Dr. Durand every few days for a recheck. Findings were essentially the same. Physical therapy was continued as were the pain medications. (Ex. 5, pp. 50 to 52) On January 21, Christina reported significant improvement of her low back pain. Dr. Durand returned Christina to work four hours a day, with a 10-pound push, pull or lift restriction. She was to limit bending and instructed to make positional changes. (Ex. 5, p. 67) On January 28, Dr. Durand suggested a consultation with anesthesia for steroidal injections for her symptomatic low back pain. Christina had a transforaminal epidural steroid block at L5-S1 by Douglas Selacek, M.D. (Ex. 6, pp. 86 to 87) Dr. Durand limited Christina’s work to six hours on February 11, 2004, with the same weight and movement restrictions as before. (Ex. 5, p. 69) On February 16, 2004, Dr. Selacek prescribed Vioxx and Zanaflex for continued pain. (Ex. 6, p. 88)
Dr. Durand referred Christina for a neurosurgical consult with Loren J. Mouw,M.D., whom she saw on February 17, 2004. Dr. Mouw’s impression was progressive back pain with new neurologic complaints. (Ex. 7, p. 89) A repeat MRI was ordered which was done on February 20. The MRI showed Grade I spondylolisthesis of L5S1, probably due to spondylolysis; mild bulging at L5-S1 with no definite disc herniation; and combination of spondylolisthesis and mild disc bulge producing mild bilateral neural foraminal narrowing at L5-S1, but no definite nerve root compression. (Ex. 4, p. 45) Dr.Mouw’s impression of the MRI was mild degenerative changes but no evidence of disc herniation. Dr. Mouw could not account for Christina’s radicular symptoms based upon the MRI findings and did not offer surgical intervention. Christina was to return on an as needed basis. (Ex. 7, p. 90)
On February 23, 2004, when Christina returned to Dr. Durand, she was still having low back pain with radiating pain down her left lower leg to the level of her toes. Dr. Durand found increased muscle tension in the left lumbar paravertebrals at the L4-5 level. An EMG was suggested and work restrictions were continued. (Ex. 5, p. 54) At the March 2 recheck, Christina reported decreased pain and numbness in her left lower leg on an intermittent basis. Dr. Durand performed osteopathic manipulation and ordered continuance of physical therapy. (Ex. 5, p. 55)
A February 26, 2004 note in the medical case management report of Jane Collins, R.N. states that Christina “wishes to be released to full duty asap to pursue position in cardiac rehab, told need to follow Dr. Durand and PT recommendations, if client is released she should be able to perform all duties and is currently unable to do this.” (Ex. 10, p. 117) Christina had applied for the cardiac pulmonary rehab job on January 21, 2004, and was turned down for the position due to her lifting restrictions. (Ex. 13, p. 133)
At the March 10 recheck, Christina’s low back and left leg pain were unchanged. She was tolerating work well. Dr. Durand’s examination revealed no significant findings. Christina’s weight restriction was raised to 20 pounds and return to eight-hour shifts was allowed. (Ex. E, p. 55)
On March 14, 2004, the “church injury” occurred. Christina was walking out of church with a lady who had a seizure and grabbed Christina pulling her down a number of steps. Christina testified that she rolled, and her legs came up under her. She stated that her body twisted awkwardly and she hit the ground twice. The pastor had to help Christina back to her feet. She could not walk immediately after the fall. Christina returned to Dr. Durand on March 18 reporting the significant worsening of her low back pain due to the fall at church. Dr. Durand assessed low back pain with a “personal exacerbation of her pain.” (Ex. 5, p. 56) Dr. Durand instructed Christina to see her personal physician about the worsening due to the fall and then to return when she felt she was back to baseline for her work injury. Dr. Durand took her off work due to her personal exacerbation of her low back pain.
Christina saw Dr. McKenna on March 23 for the “church injury.” She reported that before she fell at church that she was “on a course of generalized improvement” per the record. (Ex. 2, p. 22) Christina was having stiffness throughout her low back but did not have any radicular symptoms. Christina did not wish to have physical therapy. She was going to continue with her home exercise program and pool therapy, which she was doing on her own.
Dr. Durand saw Christina on June 16, 2004, for a recheck of her back. She reported numbness and tingling in her left lower extremity. The record states that, “Ms.Merkes cannot state whether she is any better since her last visit with me on 03/18/04. She continues to have considerable pain in the lower portion of her back.” (Ex. 5, p. 57) Dr. Durand’s physical examination showed tenderness in the left lumbar paravertebral at the L2 level. The assessment was chronic low back pain. Surgery was not recommended. Dr. Durand found Christina to be at maximum medical improvement and issued a 30pound lifting restriction.
In addition to the treatment with Dr. Durand and his referrals, Christina began chiropractic care on January 20, 2004, at Dyersville Chiropractic with Kurt V. Burbach,D.C. Chiropractic manipulation was concentrated on the cervical, thoracic and lumbar areas. Christina returned on January 22, February 25, 26 and March4, 2004. At that visit, Christina reported continued, consistent improvement of her lumbosacral pain and sciatic neuralgia. (Ex. 2, p. 27) Christina sought care with Dr. Burbach on March 14, the day of the church injury. She had mild moderate improvement of her lumbar pain on return on March 18. (Ex. 2, p. 28) Christina did not return for chiropractic care until June 3, 2004. Dr. Burbach adjusted the lumbar and sacram areas. The last chiropractic visit in the records is June 16, 2004. Christina reported moderate improvement in her lumbosacral and right sacroiliac irritation. (Ex. 2, p. 29)
Dr. Durand provided an impairment rating on July 22, 2004. He found a two percent impairment to the whole person related to work. Dr. Durand stated that there may be impairment from other sources that Christina’s personal physicians should address. (Ex. 5, p. 79)
On August 24, 2004, defendants paid Christina permanent partial disability benefits based upon Dr. Durand’s two percent impairment rating. They also voluntarily paid an additional one percent. (Ex. 11, p. 119)
At the request of claimant’s counsel, Thomas J. Hughes, M.D., performed an independent medical evaluation on December 28, 2004. Dr. Hughes’ report states, “Rendering an appropriate diagnosis and offering an appropriate impairment rating in an individual such as Ms. Merkes does present some challenging considerations. Despite the numerous visits and multiple imaging studies, it is not absolutely clear what the locus of the injury may have been that has caused or significantly contributed to the symptomatology of Ms. Merkes.” (Ex. 1, p. 8) Dr. Hughes found the spondylolisthesis to be old and possibly aggravated or worsened by the lifting injury at work. He found Christina’s reporting of a pattern of paresthesias and dysesthesias that was not associated with any specific nerve root pattern made it difficult to attribute much of her symptomatology to the spondylolisthesis.