Survey
* Your assessment is very important for improving the workof artificial intelligence, which forms the content of this project
* Your assessment is very important for improving the workof artificial intelligence, which forms the content of this project
BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER ______________________________________________________________________ : ROBIN LULL-GUMBUSKY, : : Claimant, : : vs. : : 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. Page 4 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. Page 5 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. Page 6 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. Page 7 (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. Page 8 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. LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL. Page 9 [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. LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL. 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. Page 13 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 LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL. Page 15 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 LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL. 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. LULL-GUMBUSKY V. GREAT PLAINS COMMUNICATION ET AL. Page 17 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]