Download LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL

BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______________________________________________________________________
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ROBIN LULL-GUMBUSKY,
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Claimant,
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vs.
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File No. 5011034
GREAT PLAINS COMMUNICATION,
:
a/k/a GREAT PLAINS LOCATING
:
SERVICES, INC., n/k/a PROMARK
:
CONSOLIDATE UTILITY LOCATORS, :
INC., a/k/a IOWA ONE CALL,
:
APPEAL
:
Employer,
:
:
DECISION
and
:
:
EMPLOYERS MUTUAL CASUALTY
:
:
Insurance Carrier,
:
Defendants.
:
Head Note No.: 1800
______________________________________________________________________
ROBIN LULL-GUMBUSKY,
Claimant,
vs.
PROMARK CONSOLIDATE UTILITY
LOCATORS, INC., a/k/a IOWA ONE
CALL,
Employer,
COMMERCE AND INDUSTRY
INSURANCE CO.,
Insurance Carrier,
Defendants.
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
File No. 5031667
APPEAL
DECISION
LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL.
Page 2
Claimant, Robin Lull-Gumbusky, appeals and defendants, Great Plains
Communication, a/k/a Great Plains Locating Services, employer, and Employers Mutual
Casualty, insurance carrier, cross-appeal from an arbitration decision filed July 28, 2011
in which claimant was found to have failed to prove her entitlement to review-reopening
from an agreement for settlement filed and approved on January 11, 2005 and to have
failed to prove a compensable work injury resulting from a fall in a gravel ditch on
August 2, 2007. Claimant was awarded alternate medical care and various costs in her
claim against defendant Great Plains Communication, a/k/a Great Plains Locating
Services, employer (hereinafter Great Plains).
The arguments of the parties have been considered and the unnecessarily
disjointed record of evidence has been reviewed de novo.
ISSUES ON APPEAL
I.
Did the presiding deputy commissioner err by sua sponte excluding
claimant’s Exhibit 1, as offered?
II.
Did the presiding deputy commissioner err by denying both reviewreopening relief for claimant’s November 27, 2002 work injury and compensation for
her August 2, 2007 work injury?
III.
Did the presiding deputy commissioner err by not resolving all of the
issues submitted for consideration – namely, claimant’s entitlement to temporary
disability benefits, claimant’s weekly compensation rate, and issues relating to
claimant’s reimbursement for costs and expenses?
ISSUES ON CROSS-APPEAL
I.
Did the presiding deputy commissioner err by finding that crossappellants had abandoned claimant’s medical care?
II.
Did the presiding deputy commissioner err by ordering the crossappellants to pay or reimburse claimant for the costs of disputed medical care,
including transportation expenses?
III.
Did the presiding deputy commissioner err in assessing costs in both
actions against cross-appellants?
FINDINGS OF FACT
Claimant, Robin Lull-Gumbusky, was employed by Great Plains as an
underground utility locator on November 27, 2002, when she sustained a serious injury
in a one-car motor vehicle accident. Her subsequent claim for workers’ compensation
benefits was resolved pursuant to an agreement for settlement approved by the division
LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL.
Page 3
on January 11, 2005. Pursuant to the agreement, claimant was entitled to permanent
partial disability benefits equivalent to 35 percent of the body as a whole. In support of
the agreement for settlement documents, the parties submitted the October 30, 2003
report of neurosurgeon Darren S. Lovick, M.D., from which this excerpt is taken:
I reviewed the magnetic resonance imaging of her cervical spine and this
demonstrated minimal degenerative changes at C5-6. The magnetic
resonance imaging of the lumbar spine was essentially normal for her age.
X-rays today demonstrate no change in position of the hardware and the
bone graft appears solidly fused . . . for a total of 16% whole person
impairment. Her rating is at 16%.
(See Agreement for Settlement documents)
Subsequent to the 2002 injury, corporate ownership of claimant’s employer
passed to Promark Consolidated Utility Locators, Inc., but she continued to work in the
same job. On August 2, 2007, claimant sustained injury in one or both of successive
falls in a gravel ditch. The two falls resulted in pain in the back and right shoulder.
Occupational physician John D. Kuhnlein, D.O., evaluated claimant in connection
with litigation following both injuries. These excerpts are taken from her first report,
dated September 21, 2004:
Ms. Gumbusky relates that on November 27, 2002, at approximately
10:00 a.m. of what she describes as a beautiful day with good road
conditions, she was driving west on a gravel road … and she came upon
an ill-marked T-intersection. She ran off the road at about 35 or 40 miles
per hour into a ditch. . . .
She describes excruciating 10/10 pain immediately. She relates that
the impact knocked the breath out of her chest, and she had upper body,
neck and back pain. . . .
She was taken to Wright Medical Center in Clarion, Iowa. X-rays
revealed a compression fracture at T11. She was transported to Mercy
Medical Center–North Iowa via ambulance to see Dr. David Beck. . . .
....
On December 2, 2002, Ms. Gumbusky had a variety of radiographic
procedures performed . . . The MRI scan showed a roughly 60% collapse
of the T11 vertebral body with slight retropulsion without cord
entrapment. . . .
LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL.
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Dr. [Darren] Lovick [M.D.] performed a T11 vertebrectomy, a T10-11
discectomy, a T11-12 discectomy, fusion of T10 through T12 with an
allograft tibial strut and autograft from the T11 vertebrectomy, and
application of a rod system for stabilization on December 4, 2002. . . .
Dr. Lovick indicated that she would need permanent lifting restrictions in
the operative note, and that with the degree of kyphosis, he felt that she
was going to develop progressive kyphotic deformity which would place
her at risk for long-term chronic pain and delayed neurologic deficit. . . .
The records indicate that Ms. Gumbusky followed an uncomplicated
postoperative intrahospital course, and she was discharged on December
11, 2002. . . .
Over the next several months, Dr. Lovick’s notes indicate that Ms.
Gumbusky did quite well, and by March 11, 2003, he noted that she was
having much less pain and prescribed one month of physical therapy. Ms.
Gumbusky relates that this decreased her symptoms. . . .
....
She saw Dr. Lovick on June 19, 2003. Dr. Lovick’s note indicated that
her pain was fairly minimal. Dr. Lovick felt that she could lift 25 to 40
pounds periodically, but lifting 150 pounds was unreasonable with the type
of injury that she had sustained. I reviewed this note with Ms. Gumbusky.
She disagreed that her pain was minimal. She related that she continued
to be sore in the incisional area, and had hip and left shoulder pain as
well.
....
Current Symptoms – Ms. Gumbusky describes bilateral cervical
stiffness in the C5-6 area, more prominently on the left than the right. She
also describes pain at the left inferior scapular pole. She relates that she
is numb around the bra line and around the incisional site. She describes
numbness and sensitivity in the left upper quadrant of the abdomen just
under her rib cage.
She describes an aching sensation in her low back and tightness like a
rubber band sensation. She notes discomfort at the left pelvic brim,
occasionally on the right as well. This radiates down her left leg across
the medial calf to the inside of the left foot. . . . She relates that the leg
does become painful. Her pain ranges between 3 and 8 on a scale of 10
and is usually 5/10. Her pain has made her more irritable.
LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL.
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Current Work Activities - She continues to perform the same type of work
she has been doing for six years. However, she has accommodated her
work by attempting to work more slowly and she is more conscious of her
body movements.
Current Physician Assigned Restrictions - She has no formal physician
assigned restrictions, but she has self-imposed restrictions. She relates
that she no longer does any specific lifting, and works 10-hour days. She
relates that her job is independent, and jobs must be completed, but she
tries to change them as much as she can in order to make it easier for her
to do so.
Aggravating/Relieving Factors –
Aggravating and Relieving Factors in Current Job Activities – She relates
that she has difficulty lifting, pushing or pulling equipment, carrying,
walking, sitting, standing, stooping, crawling, kneeling, working in hot or
cold weather, going up and down stairs, working outdoors and working
between the floor and her waist. She relates that she is now a very
anxious driver and becomes very nervous while in the work truck driving,
because she is anticipating a possible accident.
(Exhibit O, pages 50-53)
Based on thoracic and lumbar impairment, but deferring possible mental
impairment to mental health professionals, Dr. Kuhnlein rated total impairment at 28
percent of the whole person. (Ex. O, p. 57) As to claimant’s request to rate such
impairment as “cannot be quantified by a Guides rating,” Dr. Kuhnlein added:
Ms. Gumbusky developed a startle reaction, and other depression and
anxiety that has an impact upon her work abilities. For example, she has
altered the way that she does her work activities based on fear of collision,
based on this accident. She has also altered certain aspects of her
activities of daily living at home. In addition, she relates that her alcohol
intake has increased because of the anxiety associated with the injury.
She is now taking narcotic pain medications.
(Ex. O, p. 57)
In deposition testimony given December 20, 2010, claimant stated that she had
continued symptoms:
Q. Let me ask you this: Tell me all the different parts of your body that
you injured in the 2007 accident or the parts of your body that you had
ongoing pain as a result of the 2002 accident. You said your neck?
LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL.
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A. Yeah. My neck, upper back, lower back, and I believe – oh, and
around the side of my rib cage feels like it’s been broken since then, some
part of my ribs.
Q. Did you have any leg pain from your 2002 accident?
A. Yes. [Left leg]
....
Q. When did that [anxiety] start?
A. After the ’02 accident.
....
Q. So if I understand your testimony right, at the time of that August 2007
injury, your pain and your problems had not resolved from the 2002 injury;
is that right?
A. Correct.
(Ex. N, pp. 34, 37, 39)
Indeed, prior to the 2007 injury, claimant required ongoing use of painkillers –
including narcotic formulations. On September 1, 2006, she presented to Pain
Management Center for consultation relative to “ongoing difficulty with low back, left hip
and leg pain” with continued “symptoms that adversely impact her full participation in
activities of daily living.” (Ex. Q)
On August 2, 2007, after suffering two falls while descending into a newly dug
ditch, claimant completed her day’s assignment and, after reporting the injury,
presented to a local hospital emergency room, where she was seen by David Vangorp,
M.D. Dr. Vangorp took this history:
Robin is a 46-year-old female who works as a utility locator for Iowa
One Call. She states that she was on the job today and she was going
down a ditch when she slid on some loose gravel. The ditch was 4 or 5
feet deep. She landed on her right forearm, jarring her right shoulder
rather significantly and also strained her back. She hurt quite a bit. As
she tried to get back out of the ditch she slipped again and landed on her
back a second time. She thinks it knocked the wind out of her.
LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL.
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(Ex. CC) Dr. Vangorp prescribed two medications to be used if acetaminophen and
ibuprofen did not relieve symptoms, as well as icing, and excused his patient from work
as follows:
She should be able to work in a couple of days but I did give her today
and tomorrow off. If she is not doing better she is to check in with her
doctor, Sufka Boyd, who is a female physician in Ankeny and her usual
doctor.
(Ex. CC, pp. 81-82)
After missing one day of work, followed by a weekend, claimant returned to her
regular job the following Monday. She did not seek additional medical treatment for
another seven weeks, eventually presenting to Andy Goodner, M.D., on September 21,
2007. Claimant treated with Dr. Goodner, who prescribed physical therapy and
medications, for three months, at which time he recommended a pain management
clinic and suggested a referral to Christian Ledet, M.D., a pain specialist. Claimant also
returned to Dr. Sufka-Boyd for ongoing care and returned to Dr. Beck, who ordered
another MRI scan and accomplished a steroid injection without notable improvement in
symptoms.
In April 2008, claimant quit her job with Great Plains and was off work for the
next eight months. Her next position was as a companion for a rather violent disabled
man, with duties akin to those of a nursing assistant. On December 31, 2009, claimant
was the victim of violence, as recorded by Dr. Kuhnlein in his second IME report (dated
January 4, 2011):
Ms. Gumbusky relates that her client erupted on this date, and was
chasing her about the house. She relates that she was in fear for her life,
and ran out the front door of the client’s house. She slipped on ice and
snow, and fell to the sidewalk, landing on her right side. She relates that
there was no permanent change in her symptoms, and over the next two
to four weeks, her symptoms returned to their baseline status. She never
returned to work for the client because she considered it to be too
dangerous.
(Ex. I, p. 132)
Claimant last saw Dr. Ledet in January 2009, when he advised her to follow up
with her personal physician, Dr. Sufka-Boyd, who has managed her care ever since.
In connection with her application for Social Security disability benefits, claimant
was seen for evaluation by Gary Cromer, M.D., on January 13, 2009. Dr. Cromer
recognized the severity of claimant’s crush injury, but cautioned:
LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL.
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It should be noted that motor strength was globally decreased in a
nonanatomic fashion, and the report of 3 out of 5 strength throughout the
entire LLE is inconsistent with a multitude of prior exams as well as with
the report that claimant walked well and said she could walk up to one
mile. Claimant’s allegation that sitting was limited to only 30 minutes yet
riding in a car would be tolerated for up to two hours is also internally
inconsistent. These multiple inconsistencies erode the credibility of
claimant’s allegations.
(Ex. D, p. 10)
On October 25, 2010, claimant presented back to Dr. Kuhnlein with this litany of
complaints:
Current Symptoms – Ms. Gumbusky describes cervical pain radiating
across both trapezius muscles. She continues to complain of thoracic
pain radiating around the left ribcage as before. She also describes low
back pain. She describes hip pain, but when doing so she actually points
to her sacroiliac joints. She says that this pain radiates down the left leg
below the knee to the ankle. She says that coughing and sneezing make
her back pain worse. She is able to control her bowels and bladder. She
endorses tailbone pain and whole leg pain. She says that she now has
problems driving and writing making her hands go numb, what she
describes as “repetitive” use. She says that she has to take more frequent
breaks, and she believes that she is stiff from her neck to her low back.
She says that her pain ranges between 4 and 10 on a 10-scale, and is
usually 7/10.
(Ex. I, p. 133) Dr. Kuhnlein offered these opinions on claimant’s condition and the
causes thereof:
1. To a reasonable degree of medical certainty, is it or is it not probable
that since 1/11/05, the extent of her permanent impairment proximately
caused by her 11/27/02 work injury changed, especially by increasing
the extent of her permanent impairment proximately caused by the
11/27/02 work injury?
[Answer:] No. Based on this physical examination, the impairment rating
for this injury is the same as assigned six years ago.
2. To a reasonable degree of medical certainty, is it or is it not probable
that on or about 8/02/07, she sustained an injury which arose out of
her employment, and if so, what parts of her body were injured.
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[Answer:] Yes, Ms. Gumbusky did sustain an injury on or about August 2,
2007. Diagnoses are listed below:



Forearm contusion
Lumbar strain
Left wrist contusion
....
With respect to the right shoulder . . . [s]he does have decreased range
of motion in flexion, but it is matched by the left upper extremity as well.
She does have decreased right abduction, but no objective reason to
explain the decreased range of motion, so there is no objective basis upon
which to assign an impairment rating for the right shoulder.
With respect to the lumbar strain, Ms. Gumbusky relates that her pain
was permanently worsened by this injury. She is still within DRE Lumbar
Category II based on Table 15-3, page 384, and an additional 3%
impairment would be assigned above and beyond that assigned before for
the 2002 injury. At this time, there is no other objective basis upon which
to assign impairment for this injury related to the August 2, 2007, injury.
....
With respect to apportioning the impairments between the two injuries,
the previously assigned 28% whole person impairment would be related to
the November 27, 2002, injury. 3% whole person impairment would be
related to the August 2, 2007, work injury based on this examination.
(Ex. I, pp. 137-138)
Defendants contend that claimant lacks credibility as a witness, and not without
reason. The following testimony is excerpted from her deposition of December 20,
2010:
Q. Have you ever had any medical treatment for drug or alcohol abuse or
problems?
A. No.
Q. Have you ever used illegal drugs?
A. No.
(Ex. N, p. 21)
LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL.
Page 10
Both answers have been proven to be false. Records of St. Paul-Ramsey
Medical Center from August 1994 include a patient history of remote IV drug use,
alcohol and chemical dependency treatment, including 1993 inpatient services, and
polysubstance abuse including LSD, heroin, and mushrooms. (Ex. H, p. 33) Claimant
did not disclose this well-documented history to some of her physicians and has also
been inaccurate as to her educational attainments in job applications. As noted by the
presiding deputy, such testimony does call into question claimant’s credibility.
CONCLUSIONS OF LAW
The first issue for consideration on appeal is whether the presiding deputy
commissioner erred in excluding much of claimant’s medical evidence due to a violation
of the hearing assignment order. More specifically, claimant challenges the exclusion of
the majority of Exhibit I by the presiding deputy commissioner. This issue is pertinent to
each of the pending cases and will be decided as a preliminary issue as applicable to
both cases. It is found that the presiding deputy had given prior admonition to
claimant’s attorney about the compilation of his exhibits in prior cases. Such admonition
was warranted as claimant’s counsel has chosen to prepare and enter evidence in a
manner that the division and its professional staff have determined is unhelpful and
unwanted. The division and its professional staff have a workflow and internal practices
which make the presentation of exhibits in a uniform manner a necessity. The counsel’s
plea to do it his way due to his desire to “build a better mousetrap” so as to increase
ease of review of records is rejected. The division knows its own workflows and
practices quite well and therefore does not invite violation of its orders, despite a
purported benevolent purpose. Claimant’s counsel should recognize that failure to
follow the orders issued by the division frequently results in significantly more work for
internal staff – something that cannot be tolerated. And obviously was not tolerated by
the presiding deputy.
Deputy commissioners, and this division, have a great deal of discretion in their
oversight and determinations about admissibility of evidence. Marovec v. PMX
Industries, 693 N.W.2d 779, 786 (Iowa 2005). However, the Iowa Workers’
Compensation Commissioner may reverse deputy decisions regarding the admissibility
of evidence when such decisions constitute abuse of discretion or clear errors of law.
The division has an administrative rule that permits sanctions, including the
exclusion of evidence, for a failure to comply with orders of the agency. Rule 876 IAC
4.36. On July 10, 2010, a hearing assignment order was issued in these files by the
undersigned. That order was intended to, and did, govern the proceedings before this
agency. Square D Co. v. Plagmann, 810 N.W.2d 25 (Iowa App. 2011). Moreover, in
this instance, the presiding deputy commissioner had previously given an admonition in
a prior decision of this agency about the submission of documentary evidence and his
expectations. See Hougham v. Ozark Automotive, File No. 5020207 (Arbitration
Decision, filed September 28, 2007). Claimant’s counsel of record did not comply with
LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL.
Page 11
the prior order and admonition of the deputy commissioner. Accordingly, the presiding
deputy commissioner was well within his discretion to sanction claimant’s counsel,
including through the exclusion of evidence. Therefore it is concluded that there was no
abuse of the deputy commissioner’s discretion. Marovec, 693 N.W.2d at 786;
Plagmann, 810 N.W.2d 25. However, the impact of the deputy’s decision did more – in
this particular record – to impact the ease of review of the evidentiary record for the
undersigned and perhaps judges on judicial review, than it did to punish claimant or her
counsel. Just because it is not an abuse of discretion to exclude evidence does not
make it a wise sanction. A presiding deputy should rarely rely upon the exclusion of
medical and other evidence as a sanction for failure to follow the hearing assignment
order as to the structure and organization of exhibits. Far less drastic sanctions which
impact the offending counsel – as opposed to the party and those who may
subsequently review the record of evidence – are clearly available and are preferred.
Claimant also asserts the exclusion of evidence was erroneous as a matter of
law. Yet, review of the hearing transcript discloses that claimant made no offer of proof
and did not otherwise preserve or identify the specific evidence she now challenges.
While claimant’s appellate briefs discuss the evidence she desired to be admitted,
claimant did nothing at the time of the arbitration hearing to make an offer of proof to
preserve her challenge as to the admissibility of those portions of Exhibit I excluded by
the deputy commissioner. Generally, an offer of proof is necessary to preserve a
challenge to the exclusion of evidence. Brooks v. Holtz, 661 N.W.2d 526 (Iowa 2003).
As the appealing party, claimant bore the burden to ensure that there is an adequate
record on appeal for me to review this claim of error. Wende v. Orv Rocker Ford
Lincoln Mercury, Inc., 530 N.W.2d 92 (Iowa App. 1995).
While claimant’s appellate briefs discuss the evidence she desired to be
admitted, claimant did not make an offer or proof or otherwise explain in any detail at
the arbitration hearing why the exclusion of the evidence was prejudicial to claimant.
The deputy did not have the advantage of reconsidering his exclusion of the evidence or
the claim of prejudice now asserted. See Brooks, 661 N.W.2d 526 (explaining that an
offer of proof is necessary to permit the trier of fact to reconsider and understand the
entire breadth of the argument being asserted by the offering party and that the offer of
proof is necessary to provide for a full appellate review). Given that an offer of proof
was not made by claimant, there is no evidence (or an offer of proof) before the agency
for consideration on appellate review. It is therefore concluded that claimant failed to
preserve error on her challenge of the deputy’s ruling excluding claimant’s exhibit I.
Therefore, the deputy commissioner’s decision excluding exhibit I, other than the
independent medical report from Dr. Kuhnlein, contained at exhibit I, pp. 127-147, is
affirmed. Finally, as requested by defendants, those portions of claimant’s appellate
briefs which discuss evidence which is not included in the record of the case must be
and are stricken.
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Page 12
The next issues for consideration are whether the presiding deputy commissioner
erred by denying claimant recovery from either a review-reopening of her prior
agreement for settlement or a new work injury.
The burden of proof is on the party asserting the affirmative in an administrative
proceeding; that is, “on the party who would suffer loss if the issue were not
established.” Iowa Rule of Civil Procedure 6.14(6); Wonder Life Company v. Liddy, 207
N.W.2d 27 (Iowa 1973); Norland v. Iowa Dept. of Job Service, 412 N.W.2d 904 (Iowa
1987). Therefore, it remains claimant’s burden to establish entitlement to all such relief
as is sought.
In a review-reopening proceeding, the petitioner has the burden to show a
change in condition related to the original injury since the original award or settlement
was made. The change may be either economic or physical. Blacksmith v. AllAmerican, Inc., 290 N.W.2d 348 (Iowa 1980); Henderson v. Iles, 250 Iowa 787, 96
N.W.2d 321 (1959).
Claimant contends that she has increased industrial disability due to worsening
symptoms attributable to one or both work injuries. As per Dr. Kuhnlein’s findings, she
has no additional impairment related to this [2002] work injury. (Ex. I, p. 137) Dr.
Kuhnlein further noted that claimant’s mental health status had not changed significantly
since he last saw her in 2004. (Ex. I, p. 140) Claimant did not prove that there was any
economic change, or other related changes, resulting from the November 27, 2002 date
of injury. Therefore, it is concluded that claimant has failed to carry her burden of proof
to establish a change in condition or entitlement to additional permanent partial disability
benefits for the November 27, 2002 date of injury.
Claimant seeks other relief against defendants who were party to her agreement
for settlement, including the cost of Dr. Kuhnlein’s evaluation under Iowa Code section
85.39, entitlement to rehabilitation benefits under Iowa Code section 85.70, and past
and future medical benefits.
Iowa Code section 85.39 permits an employee to be reimbursed for subsequent
examination by a physician of the employee’s choice where an employer-retained
physician has previously evaluated “permanent disability” and the employee believes
that the initial evaluation is too low. A rating of no impairment is a rating of impairment
for section 85.39 purposes. Vaughn v. Iowa Power Inc., File No. 925283 (Arb. Dec.
1992). The section also permits reimbursement for reasonably necessary
transportation expenses incurred and for any wage loss occasioned by the employee’s
attending the subsequent examination. A section 85.39 evaluation is reimbursable
irrespective of whether claimant establishes that the claimed injury arose out of and in
the course of employment. Dodd v. Fleetguard, Inc., 759 N.W.2d 133 (Iowa App. 2008).
The issue of entitlement to a second section 85.39 evaluation in reviewreopening has been determined as follows:
LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL.
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Even though we have not applied Iowa Code section 85.39 to reviewreopening petitions, the industrial commissioner has. In Sheriff v. Intercity
Express, 34 Iowa Indus. Comm’r Repts. 302 (Oct. 1978), the employee
sought reimbursement for a section 85.39 medical evaluation during his
second review-reopening proceeding. The employee asserted that the
prior evaluation, which the new medical evaluation challenged, was the
physician’s report during the first review-reopening proceeding. Sheriff, 34
Iowa Indus. Comm’r Rpts. at 303. In denying the claim for reimbursement,
the commissioner stated:
Claimant’s subsequent attempt to obtain an examination pursuant to §
85.39 is either an attempt to get evidence of an evaluation of disability
greater than that awarded by the deputy in the first review-reopening
proceeding or an attempt to get evidence of a change in condition at the
employer’s expense. It is neither contemplated nor proper that § 85.39 be
used for these purposes.
Id. Although we do not defer to the commissioner’s interpretation of
the workers’ compensation statute, Larson Mfg. Co. v. Thorson, 763
N.W.2d 842, 850 (Iowa 2009), we find the commissioner’s reasoning
persuasive here.
We agree with the commissioner and the district court that Iowa Code
section 85.39 does not expose the employer to liability for reimbursement
of the cost of a medical evaluation unless the employer has obtained a
rating in the same proceeding with which the claimant disagrees. In 2002,
Kohlhaas entered into a settlement agreement establishing his disability.
Three years later, he seeks reimbursement for a medical evaluation not to
rebut a new impairment rating obtained by the employer in the reviewreopening proceeding, but rather to cast doubt on an impairment rating
obtained by the employer before the agreement for settlement was
reached. If Kohlhaas wanted to challenge Dr. Crane’s evaluation at his
employer’s expense, he should have done so in the original proceeding
establishing his disability in 2002, not during the review-reopening
proceeding three years later. The review-reopening proceeding in this
case is a new and distinct proceeding apart from the original arbitration
action, as the claimant had a burden to prove something different than he
proved at the arbitration hearing. See Iowa Code § 86.14(2). As the
employer did not obtain a new evaluation of Kohlhaas’ disability in
connection with the review-reopening proceeding, Kohlhaas is not entitled
to reimbursement for expenses associated with Dr. Kuhnlein’s medical
evaluation under section 85.39. (Emphasis added.)
Kohlhaas v. Hog Slat, Inc., 777 N.W.2d 387, 394-395 (Iowa 2010).
LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL.
Page 14
Defendants Great Plains and Employers Mutual Casualty did not obtain a new
impairment rating for the November 27, 2002 date of injury. Accordingly, Iowa Code
section 85.39 does not apply for the November 27, 2002 date of injury. Claimant’s
claim for a new section 85.39 evaluation is denied as to these defendants and the prior
determination of the presiding deputy as to this issue is affirmed.
Claimant also seeks rehabilitation benefits under Iowa Code section 85.70, which
provides for payment of such benefits to an individual “who cannot return to gainful
employment” because of a work injury. Claimant returned to the same job after both
injuries and subsequently left such employment voluntarily. She has not established the
requisite inability to return to gainful employment and is not entitled to rehabilitation
benefits under Iowa Code section 85.70. The presiding deputy’s ruling as to
rehabilitation benefits is therefore affirmed.
As to claimant’s work injury of August 2, 2007, it is claimant’s burden to prove a
causal nexus between the admitted work injury and what she alleges to be permanent
partial disability, up to a one-hundred percent loss of earning capacity.
Since claimant has an impairment to the body as a whole, an industrial disability
has been sustained. Industrial disability was defined in Diederich v. Tri-City R. Co., 219
Iowa 587, 258 N.W. 899 (1935) as follows: "It is therefore plain that the legislature
intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and
not a mere 'functional disability' to be computed in the terms of percentages of the total
physical and mental ability of a normal man."
Functional impairment is an element to be considered in determining industrial
disability which is the reduction of earning capacity, but consideration must also be
given to the injured employee's age, education, qualifications, experience, motivation,
loss of earnings, severity and situs of the injury, work restrictions, inability to engage in
employment for which the employee is fitted and the employer's offer of work or failure
to so offer. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Olson v.
Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada
Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).
Compensation for permanent partial disability shall begin at the termination of the
healing period. Compensation shall be paid in relation to 500 weeks as the disability
bears to the body as a whole. Section 85.34.
Claimant asserts various medical difficulties subsequent to her work injury of
August 2, 2007.
With respect to claimant’s neck pain, it is not noted significantly after the August
2, 2007 injury in the Emergency Room visit. It is mentioned briefly in Dr. Goodner’s
notes, but not significantly throughout the care after this injury. It was clearly difficult for
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the medical care providers to attribute claimant’s cervical spine pain to the August 2,
2007, within a reasonable degree of medical certainty. It is only after a subsequent
December 31, 2009, injury that her neck pain is mentioned significantly by Dr. SufkaBoyd on January 14, 2010. It is therefore concluded that claimant has failed to prove by
a preponderance of the evidence that her neck injury is related to her work injury of
August 2, 2007. Likewise, claimant complains of numbness in her hands, and her
physical examinations suggest the possibility of carpal tunnel syndrome. However
claimant has failed to provide supportive medical evidence for the August 2, 2007 claim
and therefore it is concluded that claimant’s carpal tunnel complaints are not related to
her work injury of August 2, 2007. (Ex. I, p. 139)
Dr. Kuhnlein notes that claimant complains of pain in the ribcage area and
recommends blocks in that area of claimant’s body. (Ex. I, p. 138) However, there is
not sufficient evidence contained within the record to establish that claimant’s ribcage
was injured, reinjured, or permanently aggravated as a result of the falls on August 2,
2007. Therefore, it must be concluded that the injuries to the ribcage and any future
medical treatment related thereto remain directly related to the injury and resulting
operative procedure performed as a direct result of the November 27, 2002 work injury.
It is further concluded that Dr. Kuhnlein’s opinion about claimant’s anxiety levels
are convincing. In his January 4, 2011 report, Dr. Kuhnlein notes, “There is very little
difference in her overall mental health presentation, and it has not been addressed
significantly, according to the currently available record.” (Ex. I, p. 140) It is therefore
also concluded that claimant’s mental health difficulties result from the November 27,
2002 date of injury. That being so, it is also found that claimant’s mental health
conditions have not been significantly aggravated or changed in a permanent manner
as a result of the August 2, 2007 date of injury.
As to claimant’s prior medical complaints, Dr. Kuhnlein is in the unique position of
having evaluated claimant both before and after her 2007 injury. As noted by the
presiding deputy commissioner, his even-handed and measured evaluation is highly
persuasive. Dr. Kuhnlein specifically identified that claimant sustained a three percent
whole person functional impairment rating as a result of the 2007 work injury.
Defendants’ authorized surgeon, David Beck, M.D., similarly found that claimant
sustained a permanent impairment and loss of function of one percent of the body as a
whole as a result of the August 2, 2007 work injury. (Ex. U) It is therefore concluded
that claimant has established that she sustained additional permanent impairment as a
direct and proximate result of her August 2, 2007 injury.
It is further noted that Dr. Beck’s impairment rating lacks any specificity as to how
it was reached or under what provision of the AMA Guides it was assigned. Dr.
Kuhnlein’s assessment of a three percent permanent impairment rating attributable to
the August 2, 2007 injury was delineated as being under the AMA Guides and the
specific section of the Guides from which the rating could be derived was identified by
Dr. Kuhnlein. It is therefore further concluded that Dr. Kuhnlein’s assessment of an
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Page 16
additional three percent impairment to the body as a whole is accurate and the basis for
further permanent partial disability.
Due to the conclusion that the medical evidence supports an award of permanent
partial disability, the finding of the presiding deputy that claimant is not a credible
witness must be considered. Even if claimant’s self-interested account of ongoing pain
levels is unreliable, this by no means implies that she has no pain or is not still entitled
to medical care for alleviation of that pain. Indeed, her prescription usage increased
significantly after the August 2, 2007 date of injury. I defer to the observations and
credibility findings of the presiding deputy and concur that claimant’s testimony is likely
exaggerated as to the extent of her symptoms and residual abilities. Nevertheless, I
find objective documentation of increased pain medication usage, namely Dr. Kuhnlein’s
persuasive opinion explaining claimant’s increased medication usage and how she is
now taking the maximum allowable dosage of Vicodin. (Ex. I, p. 140; Ex. IA, pp. 3-12)
It is concluded that this evidence, coupled with the testimony of claimant’s husband,
Steve Gumbusky, establishes that there has been a permanent increase in claimant’s
back symptoms as a direct result of the August 2, 2007 date of injury.
Having concluded that claimant has established an increased level of permanent
functional impairment, it must also be determined whether this permanent impairment
has resulted in further permanent disability. It is concluded that claimant quit her job at
Great Plains at least partially as a result of her increased symptoms and anxiety about
further injury. Although no physician has imposed specific permanent work restrictions
upon claimant since the August 2, 2007 work injury, it must be noted that at least one
treating physician has concluded claimant cannot continue to perform her work as a
locator for Great Plains. Specifically, Joseph A. Brunkhorst, M.D., opined in a
December 18, 2008 letter to the Social Security Administration that “I think it would be
hard for her to continue that type of work.” (Ex. V) While recognizing the presiding
deputy’s concerns as to claimant’s testimony and her potential exaggeration of her
symptoms, the following conclusions are provided. It is concluded that claimant has not
proven a substantial change of condition, or that she sustained any additional loss of
future earning capacity as a result of the November 27, 2002 date of injury. However,
given the increased permanent impairment, Dr. Kuhnlein’s opinions about increased
medication usage, and the opinions of Dr. Brunkhost about claimant’s ability to continue
to work as a locator for the employer, it is also concluded that claimant has proven by a
preponderance of the evidence that she sustained a compensable, permanent work
injury as a result of the August 2, 2007 work injury. It is further concluded that
claimant’s injury resulting from the August 2, 2007 date of injury is limited to her lumbar
spine. Dr. Kuhnlein’s opinions are accepted with respect to causation issues for any
alleged injuries to the neck, shoulders or arms (carpal tunnel). (Ex. I, pp. 137, 139)
Having considered numerous factors of industrial disability it is concluded that claimant
presently has a permanent loss of earning capacity equal to 45 percent as a result of
the August 2, 2007 work injury.
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As was previously concluded, claimant has essentially proven an additional 10
percent industrial disability, or a combined industrial disability as a result of both alleged
injuries of 45 percent. Defendants asserted apportionment pursuant to Iowa Code
section 85.34(7)(b)(1). Claimant has not proven decreased earnings as a proximate
result of the 2002 work injury. Therefore, defendants are entitled to a 35 percent credit
for the 2002 work injury and resulting Agreement for Settlement. See Steffen v.
Hawkeye Truck & Trailer, File No. 5022821 (App. September 9, 2009). Defendants will
be liable for payment of the additional 10 percent industrial disability attributable to the
2007 date of injury. In this instance, claimant has an additional 10 percent industrial
disability from the 2007 date of injury, which is equivalent to 50 weeks of permanent
partial disability benefits (500 weeks x 10 percent = 50 weeks).
As it pertains to claimant’s two falls on Thursday, August 2, 2007, claimant
finished her work day before presenting to Dr. Vangorp, who gave her “today and
tomorrow” off. Since claimant had already completed that day’s work, Dr. Vangorp’s
excuse was actually for only one day. Following the weekend, claimant returned to
work on Monday. Since it has been concluded that the August 2, 2007 work injury
caused a permanent disability, Iowa Code section 85.34(1) applies.
Iowa Code section 85.34(1) provides that healing period benefits are payable to
an injured worker who has suffered permanent partial disability until (1) the worker has
returned to work; (2) the worker is medically capable of returning to substantially similar
employment; or (3) the worker has achieved maximum medical recovery. The healing
period can be considered the period during which there is a reasonable expectation of
improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli,
Iowa App 312 N.W.2d 60 (1981). Healing period benefits can be interrupted or
intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
Claimant has proven she was medically restricted from returning to work for only
one day, August 3, 2007. After that date, she was no longer under medical restrictions
and was capable of returning to substantially similar employment, as demonstrated by
her return to work the following Monday. It is therefore concluded that claimant has
proven entitlement to one day of healing period for missed work on August 3, 2007.
Having found that claimant is entitled to weekly benefits it becomes necessary to
determine the proper weekly rate at which those benefits are to be paid by defendants.
Iowa Code section 85.36 states the basis of compensation is the weekly earnings of the
employee at the time of the injury. The section defines weekly earnings as the gross
salary, wages, or earnings to which an employee would have been entitled had the
employee worked the customary hours for the full pay period in which the employee
was injured as the employer regularly required for the work or employment. The various
subsections of section 85.36 set forth methods of computing weekly earnings
depending upon the type of earnings and employment.
LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL.
Page 18
If the employee is paid on a daily or hourly basis or by output, weekly earnings
are computed by dividing by 13 the earnings over the 13-week period immediately
preceding the injury. Any week that does not fairly reflect the employee’s customary
earnings that fairly represent the employee’s customary earnings, however. Section
85.36(6). It is concluded that section 85.36(6) is the applicable and governing rate
statute. It is further concluded that the “tech bonuses” received by claimant were
regular and should be included in the calculation of the claimant’s gross earnings.
Following review of the record it is calculated that claimant had an average weekly
wage at the time of the August 2, 2007 date of injury of $710.85. The parties stipulated
that claimant was married and entitled to two exemptions. In the hearing report,
claimant asserts that the applicable weekly rate under her calculation of the average
weekly wage should be $463.67. However, the undersigned’s review of the applicable
Iowa Workers’ Compensation Manual (rate book) for effective dates of injury from July
1, 2007 through June 30, 2008 demonstrates that the applicable weekly rate for healing
period and permanent partial disability benefits is $463.10. All weekly benefits awarded
herein for the August 2, 2007 date of injury are awarded at the rate of $463.10.
Claimant again seeks reimbursement of Dr. Kuhnlein’s report as a part of her
work injury on August 2, 2007. The entitlement to reimbursement pursuant to Iowa
Code section 85.39 for this date of injury largely depends on the medical reports of Dr.
Beck, who released her from care on November 21, 2007 after her new MRI scan was
negative. (Ex. S) According to Dr. Kuhnlein, Dr. Beck “appears to have assigned a 1%
impairment rating” on March 29, 2008. (Ex. I, p. 131; Ex. U). It is established that a
previous impairment rating has been given, but it has not been proven that Dr. Beck
qualifies as an employer-retained physician. Consequently, the claim for section 85.39
reimbursement shall be denied.
Additionally, claimant’s claim for Iowa Code section 85.70 rehabilitation benefits
as to her August 2, 2007 date of injury is resolved against her for the same reasons as
outlined above.
Defendants, Great Plains and Commerce and Industry Insurance Company have
previously paid weekly compensation benefits to claimant in the amount of $2,555.95 on
April 2, 2008. (Ex. II, p. 39; Hearing Report). Defendants are entitled to credit for
benefits previously paid to claimant.
The final issue for consideration as applicable to both files is the issue of medical
care. Under Iowa Code section 85.27, the employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing,
ambulance and hospital services and supplies for all conditions compensable under the
workers’ compensation law. The employer shall also allow reasonable and necessary
transportation expenses incurred for those services. The employer has the right to
choose the provider of care, except where the employer has denied liability for the injury
or the worker has sought and received authorization from this agency for alternate
medical care. Freels v. Archer Daniels Midland Co., File No. 1151214 (App., June 30,
LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL.
Page 19
2000). Defendants cannot admit injury arising out of and in the course of employment
and claim the right to control medical treatment, but at the same time deny that the
disabling condition is causally connected to the injury and therefore they are not liable
for the disability. Trade Professionals, Inc. v. Shriver, 661 N.W.2d 119 (Iowa 2003).
Claimant is entitled to an order of reimbursement only if she has paid treatment
costs; otherwise, to an order directing the responsible defendants to make payments
directly to the provider. See, Krohn v. State, 420 N.W.2d 463 (Iowa 1988). Defendants
should also pay any lawful late payment fees imposed by providers. Laughlin v. IBP,
Inc., File No. 1020226 (App., February 27, 1995).
Where an employer does not exercise its right to choose the medical care under
Iowa Code section 85.27, the employer may be held to have acquiesced in claimant’s
choice of physician. Munden v. Iowa Steel & Wire, 33 Biennial Report of the Iowa
Industrial Commissioner 99 (Arbitration Decision, September 12, 1977). Harker v. IBP,
Inc., File No. 1169917 (App. Dec. 1999).
Claimant sustained successive injuries while working the same job, but her
situation is complicated through no fault of her own by a corporate change of ownership.
While in the employ of Great Plains, she sustained a serious spine fracture requiring
surgical repair and installation of hardware. It is no wonder that she hurts. She is
entitled to lifetime reasonable medical care to be provided by the employer and
Employers Mutual Casualty for ongoing pain in her rib cage and for any subsequent
need for mental health treatment, provided there remains a causal nexus between the
above care and the 2002 work injury.
Having found a permanent disability resulting from the August 2, 2007 work
injury, it is the responsibility of the employer and Commerce and Industry Insurance
Company to provide ongoing and future medical care for claimant’s low back symptoms
and injury, provided future care remains causally connected to the 2007 work injury.
Those defendants shall pay and/or reimburse the disputed medical expenses incurred
by claimant since August 2, 2007 and shall provide future care as directed by Dr. SufkaBoyd, preferably along the multidisciplinary lines recommended by Dr. Kuhnlein. The
use of a specific multidisciplinary pain clinic is not ordered, as claimant has not proven a
specific facility is more qualified or necessary than any other. Instead, the facility to
which claimant shall be referred for further treatment will be left to the medical discretion
of Dr. Sufka-Boyd.
Claimant’s medical care since August 2, 2007, and the related travel expenses,
as documented on claimant’s attachment to the Hearing Report and Order are accurate
and are the result of the August 2, 2007 work injury.
Claimant has not established that it is reasonable and necessary for her to obtain
medical care through the multidisciplinary pain program at the Sister Kenny Institute in
Minneapolis, Minnesota. Claimant has established that it is reasonable and necessary
LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL.
Page 20
for her to obtain treatment through some multidisciplinary pain program in order to
address her pain complaints. (Ex. I, pp. 138-140) It is found that the need for this
multidisciplinary pain program at the present time is the result of the August 2, 2007
work injury as a result of the significant increase in pain medication usage since that
work injury.
ORDER
IT IS THEREFORE ORDERED that the combined arbitration and reviewreopening decision of July 28, 2011 is AFFIRMED IN PART and REVERSED IN PART
and that the following is ordered:
FILE NO. 5011034 (NOVEMBER 27, 2002) – Robin Lull-Gumbusky v. Great Plains
Communication a/k/a Great Plains Locating Services, Inc. and Employers Mutual
Casualty
THEREFORE, IT IS ORDERED:
Defendants shall pay or reimburse the cost of disputed medical care, including
transportation, as set forth in this decision.
Defendants shall provide such future reasonable and necessary medical care as
set forth in this decision for ongoing pain in claimant’s rib cage and for mental health
treatment.
FILE NO. 5031667 (AUGUST 2, 2007) Robin Lull-Gumbusky v. Promark Consolidated
Utility Locators, Inc., a/k/a Iowa One Call and Commerce and Industry Insurance Co.
Defendants shall pay unto claimant one day of healing period benefits based
upon claimant’s weekly compensation rate of four hundred sixty-three and 10/100
dollars ($463.10).
Defendants shall pay unto claimant fifty (50) weeks of permanent partial disability
benefits at claimant’s weekly compensation rate of four hundred sixty-three and 10/100
dollars ($463.10).
Defendants shall pay accrued weekly benefits in a lump sum, with credit provided
for prior benefit payments.
Defendants shall pay interest on unpaid weekly benefits awarded herein
pursuant to Iowa Code section 85.30.
Defendants shall pay or reimburse the cost of disputed medical care, including
transportation, as set forth in this decision for claimant’s low back injury.
LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL.
Page 21
Defendants shall provide such future reasonable and necessary medical care as
directed by Dr. Sufka-Boyd and as set forth in this decision for claimant’s low back and
chronic pain.
Defendants shall file reports with this agency on the payment of this award
pursuant to rule 876 IAC 3.1.
All costs in both claims are taxed to defendants along with the costs of this
appeal.
Signed and filed this ____26th _______ day of December, 2012.
CHRISTOPHER J. GODFREY
WORKERS’ COMPENSATION
COMMISSIONER
Copies To:
Mr. Mark S. Soldat
Attorney at Law
3408 Woodland Ave, Ste 302
West Des Moines, IA [email protected]
Mr. Aaron T. Oliver
Attorney at Law
5th Floor, US Bank Bldg
520 Walnut St
Des Moines, IA 50309-4119
[email protected]
Mr. Jeff Margolin
Attorney at Law
2700 Grand Avenue, Ste 111
Des Moines, IA 50312-5213
[email protected]