SESKIS V. CLC HEALTHCARE, INC.

Page 1

BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER

______

:

STEPHANI ANN SESKIS, :

:

Claimant, :

:

vs. :

: File No. 5008846

CENTER FOR LONG TERM :

CARE OF IOWA, INC. D/B/A :

CLC POLK CITY, :

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

Employer, :

: D E C I S I O N

and :

:

COMMERCE & INDUSTRY, :

:

Insurance Carrier, : HEAD NOTE NO.: 1803

Defendants. :

______

STATEMENT OF THE CASE

Stephani Ann Seskis, the claimant, seeks workers’ compensation benefits from defendants, Center for Long Term Care of Iowa, Inc. d/b/a CLC Polk City, the alleged employer, and its insurer, Commerce & Industry as a result of an alleged injury on April14, 2003. Presiding in this matter is Larry P. Walshire, a deputy Iowa Workers’ Compensation Commissioner. I heard this claim on May 5, 2004. Oral testimonies and written exhibits received during the hearing are set forth in the hearing transcript.

Claimant’s exhibits were marked numerically. Defendants’ exhibits were marked alphabetically. References in this decision to page numbers of an exhibit shall be made by citing the exhibit number or letter followed by a colon and then the page number(s). For example, a citation to claimant’s exhibit 1, pages 2 through 4 will be cited as, “Ex.1:2-4”

In these findings, I will refer to the claimant by her first name, Stephani, and to the defendant employer as CLC.

The parties agreed to the following matters in a written hearing report submitted at hearing:

  1. On April 14, 2003, Stephani received an injury arising out of and in the course of employment with CLC.
  1. Stephani is seeking temporary total or healing period benefits from April15, 2003 through May 27, 2003 and from June 30, 2003 through April 6, 2004 and CLC agrees that she was off work during this period of time. Stephani is also seeking temporary partial disability benefits from May 28, 2003 through June 29, 2003.
  1. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole.
  1. If I award permanent partial disability benefits, they shall begin on May 28, 2003.
  1. At the time of the alleged injury, Stephani was married and entitled to three exemptions for income tax purposes.
  1. The requested medical expenses submitted by claimant at the hearing are fair and reasonable.
  1. Defendants agree that those expenses listed in the hearing prior to July 1, 2003 report are causally related to the work injury. I view that as an agreement to pay them.

ISSUES

The parties submitted the following issues for determination in this proceeding:

  1. The extent of claimant's entitlement to weekly temporary total or healing period benefits and permanent disability benefits; and,
  1. Claimant's gross weekly earnings at the time of injury;
  1. The extent of claimant's entitlement to medical benefits, including alternate care; and,
  1. The extent of claimant’s entitlement to penalty benefits for an unreasonable delay or denial of weekly benefits pursuant to Iowa Code section 86.13.

At hearing, I excluded a report from Thomas Hughes, M.D., dated May 3, 2004 as it was not specifically listed in the exhibit list served 60 days prior to hearing and that providing it to defendants only shortly before hearing constituted unfair surprise in violation of the hearing assignment order. After that hearing, claimant moved to reconsider this ruling in light of a decision of the Iowa Supreme Court issued after the hearing. In that decision, the Court held that the exhibit listing and exhibit exclusion provisions of our hearing assignment order are invalid and unenforceable as they conflict with our administrative rule 876 IAC 4.17 requiring only service of any practitioner report upon opposing counsel within ten days of receipt. Absent an appropriate interrogatory to invoke Iowa Rules of Civil Procedure 1.508(3), late reports can only be excluded for non-compliance with rule 876 IAC 4.17. Thorson v. Larson Manufacturing Company, No. 48/03-0328 (Filed May 12, 2004)

In their resistance to the motion to reconsider, defendants assert that claimant also failed to respond or supplement an interrogatory asking to identify expert witnesses with reference to any new opinions from Dr. Hughes. Defendants further assert that this invokes the provisions of Iowa R. Civ. P. 508.3 and the report should be excluded. Claimant's attorney most certainly, as he has done many times before me in the past, will argue that Iowa R. Civ. P. 508.3 is not applicable by virtue of the same hearing assignment order which specifies that the case preparation deadlines supercede that rule.

Iowa R. Civ. P. 508.3 is applicable to these proceedings by virtue of our administrative rule 876 IAC 4.35. As that rule conflicts with our hearing assignment order, under the same rationale as Thorson, the hearing assignment order is invalid which purports to supercede that rule. Iowa R. Civ. P. 508.3 prohibits supplementation of expert opinion, not previously provided, within 30 days of trial, absent leave of court. As no such leave was granted in this case, the new views from Dr. Hughes must be excluded. Therefore, although now on different grounds, exhibit H remains excluded from the evidence of this case.

Reserved for ruling in this decision was an objection to the admission into evidence of various handwritten notes prepared by claimant, a friend and her husband. (Ex. 1:26, 28, 32 & Ex. 2:79-84, 86-91, 93) Defendants assert that an early request for production of all hand written notes was not responded to prior hearing. For the same reasons set forth above, the exhibits are excluded for failure to respond to discovery.

FINDINGS OF FACT

From my observation of their demeanor at hearing including body movements, vocal characteristics, eye contact and facial mannerisms while testifying in addition to consideration of the other evidence, I found Stephani and the witnesses she called on her behalf credible. This will be discussed later on in this decision.

Stephani is an admitted alcoholic and past abuser of not only alcohol but illegal drugs. She states that with the help of AA, she has been sober since March 18, 2002. There is no evidence in the record to dispute this. The only impact her past addictions have on the work injury is that due to her past problems with drugs, she has avoided use of strong pain medications. This likely has reduced her ability to cope with her pain.

Stephani, age 38, worked for CLC, a nursing home, as a Certified Nursing Assistant (CNA), from September 2002 until her involuntary termination from CLC on June 30, 2003. Stephani admits that she was fired for refusing to perform full duty as a CNA. She asserts that despite the release by her treating doctor at the time, she was physically incapable of lifting residents and did not want to risk further injury to herself or to the residents. She has not been employed in any capacity since leaving CLC.

Prior to this injury, claimant had several motor vehicle accidents. (Ex. II:1, 6, 710) She also had prior low back problems in 1996, exhibit 3, and a prior low back injury from a fall and lifting in January 2003, only a couple of months before the injury in this case. (Ex. II:15-21) However, claimant testified that she fully recovered from these conditions and injuries and subsequently returned to her employment without problems. Nothing in the record contradicts those assertions. According to coworkers and her supervisor at CLC who testified at hearing, Stephani was fully performing CNA duties, including lifting of residents, prior to her work injury of April 14, 2003.

The stipulated injury on April 14, 2003 occurred while repositioning a resident. Following the onset of severe low back and leg symptoms, she was initially treated conservatively by Dale Steinmetz, M.D., for a probable herniated disc. Dr. Steinmetz's medical specialty, if any, does not appear in the record. The doctor treated Stephani with a release from work, physical therapy and some medications. (Ex. II: 23-38) This treatment regimen continued until May 2003 when defendants' medical case manager transferred care to an orthopedic surgeon, Peter Wirtz, M.D. The reasons for this change of care is not clearly apparent in the record. The chief administrator at CLC testified at hearing that he was told by the case manager that the insurer was not satisfied with Stephani's progress under the care of Dr. Steinmetz. Stephani states that she was improving until her care was taken over by Dr. Wirtz.

At his first visit with Stephani, Dr. Wirtz released Stephani to light-duty work at CLC but for only four hours a day. On May 28, 2003, Stephani returned to work at CLC and was assigned by CLC to various light-duty tasks. The doctor also continued physical therapy and medications. Although an MRI revealed disc bulges at two levels of the lumbar spine, Dr. Wirtz considered the MRI "relatively negative." At the direction of Dr. Wirtz, Stephani underwent a functional capacities evaluation by a physical therapist at Dr. Wirtz's clinic. Stephani could not complete the test due to pain complaints. Apparently, what testing was done indicated to the evaluator that Stephani's pain, impairment and disability had a non-organic component and also suggested that she gave a very poor or submaximal effort not related to her pain, impairment and disability. Apparently, Dr. Wirtz viewed this as evidence of malingering because he then immediately released Stephani back to work without any restrictions on June 18, 2003 despite no change in her complaints or presentation. The doctor opined that she has not suffered any physical impairment from her work injury at CLC. (Ex. II:39-74)

Since the work injury, Stephani began to exhibit severe gait/posture problems. While attempting to walk or sit, she leans severely to the left. Despite treatment, these symptoms have worsened to the point that today she is only ambulating with a walker. She appeared to me at hearing to be almost partially paralyzed at hearing. She could barely walk and sat down in the witness chair leaning to one side with legs outstretched.

Stephani states that this gait/posture condition began with the injury and continues today according to the credible testimony of Stephani. Her coworkers and her supervisor all view this as severely disabling rendering Stephani incapable of CNA work, such as lifting residents. These witnesses generally viewed Dr. Wirtz's release to full duty as ridiculous. This testimony was very convincing to me given the demeanor of these witnesses. Only one was a friend. The others were coworkers at CLC.

When Dr. Wirtz returned Stephani to work, all further treatment ended by defendants as they denied any further responsibility for her back, leg or gait problems. (Ex. II:99)

After defendants ended treatment, Stephani sought referral from her family doctor, Gary Greenberg, M.D. Treatment was delayed as one referred doctor refused to treat Stephani for some unknown reason. Finally, on December 15, 2003, Stephani began treating with Bruce Hughes, M.D., an neurologist. Dr. Hughes re-instated physical therapy.

After his first evaluation, Dr. Hughes could not find a neurological problem to explain Stephani's symptoms and he referred her to physicians at the University of Iowa Hospitals and Clinics to evaluate the gait problems. (Ex. II:117) After his evaluation in March 2004, Henry Paulson, M.D., from UIHC, opined that Stephani has a disabling, chronic pain syndrome that affects her posture and gait. He likewise did not find nerve damage. Given her recent improvement from physical therapy, he recommended a regime of home exercises and twice weekly physical therapy sessions, which he "suspected" could lead to a complete recovery. (Ex. II:119)

In his last report in evidence, Dr. Hughes concurred with the views of Dr.Paulson. He stated that Stephani's problems were musculoskeletal in origin and that she likely will have a complete recovery with physical therapy sessions. He also stated that Stephani could return to full-time work. He did not specify what type of work. (Ex. II:121)

Stephani testified at hearing that she continues to treat with Dr. Hughes who has now prescribed use of a walker and a TNS, an electrical stimulation device to relieve pain. Stephani states that she continues to improve. However, from my observations at hearing, the improvement does not include her gait/posture problems.

The fighting issue in this case boils down to whether or not these gait problems and her chronic pain are real. Because if they are, there is little question that Stephani cannot return to CNA employment. A person who cannot physically support herself without a walker certainly could not safely support or lift a disabled resident in a nursing home.

Dr. Wirtz certainly felt that a "suggestion" from the limited FCE testing was enough to take to the bank and concluded that Stephani was not honest in her presentation. I must give some weight to the views of an orthopedic physician. On the other hand, the views of a physician, especially on causation, is subject to the quality of the information presented to him, be it a patient history or testing. In this case, we have several, very credible coworkers of Stephani, who consider Stephani's gait problems to be real. All of these persons are trained LPNs or CNAs and have considerable experience with disabled persons. These witnesses were far more experienced with Stephani's both before and after the work injury than either the FCE evaluator or Dr.Wirtz. Their credible views outweigh the results of the FCE which was couched in terms of a suspected finding. As Dr. Wirtz does not have the benefit of the views of these witnesses, his views are not convincing.

Although Dr. Hughes stated to defense counsel in March 2003 he could not identify a cause for claimant's symptoms, exhibit II:120, after the UIHC evaluation, he agrees with Dr. Paulson that the gait problems are the result of chronic musculoskeletal pain which requires further treatment. Both Drs. Paulson and Hughes agree that further treatment will improve Stephani's condition. I find these views convincing as they are consistent with Stephani's credible testimony and not corrupted by a view that Stephani is not honest in her presentation.

I find that the work injury of April 14, 2003 was and is a cause of Stephani's chronic low back and leg pain, along with the altered gait and posture problems, dating back to the date of injury.

I find that due to the April 14, 2003 injury, Stephani has been physically unable to return to work as a CNA since April 14, 2003 and that this disability continues today. I find that full-duty CNA work was the only type of work offered by CLC after June 18, 2003 and that work due to the required lifting of residents and other items was not suitable to her work related disability.

I further find that Stephani has not as yet reached maximum medical recovery in that further treatment will likely substantially improve her physical condition. I find that Dr. Hughes is the best and most logical physician to provide this care in light of his current treatment of Stephani.

I find that claimant's calculation of gross weekly earnings (attached to the hearing report) at the time of injury of $349.13 to be the most convincing as it excludes weeks which are not representative of claimant's customary earnings.

Between May 28, 2003 and July 1, 2003, claimant partially returned to light-duty work working about four hours a day. Sixty-six and two-thirds percent of the difference between Stephani's weekly earnings at time of injury and her actual gross weekly income from this partial employment is as follows:

Weeks 5/25/03-6/7/03: $698.26 - $249.99 x 2/3 = $298.85

Weeks 6/8/03-6/21/03: $698.26 - $128.02 x 2/3 = $380.16

Week 6/22/03-6/28/03: $349.13 - $ 81.21 x 2/3 = $178.61

(Ex. I:19-21)

Given the findings above, I find that the requested medical expenses as attached to the hearing report constitute reasonable and necessary treatment of the work injury of April 14, 2003. Defendants have continually denied responsibility for any medical condition for which the requested expenses were incurred which existed on and after July 1, 2003.

Claimant seeks reimbursement for an impairment evaluation after Dr. Wirtz expressed his views in June 2003. The only subsequent evaluations were from treating physicians, the cost of which is in this proceeding will be awarded.

CONCLUSIONS OF LAW

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).