Statement of the Case s16

BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER ______: PAUL HYDE, : : Claimant, : : vs. : : File No. 5007160 FLYING J, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : RISK ENTERPRISE MANAGEMENT, : : Insurance Carrier, : HEAD NOTE NOS.: 1100; 1108.50; Defendants. : 1801; 1803 ______

STATEMENT OF THE CASE

This is a proceeding in arbitration that claimant, Paul Hyde, has brought against the employer, Flying J, and its insurance carrier, Risk Enterprise Management, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on November 5, 2002.

This matter came on for hearing before the undersigned deputy workers' compensation commissioner at Davenport, Iowa on April 29, 2004. The record consists of the testimony of claimant and of Wanita Diehl, Cody Kerns and Kathleen J. Smith; as well as of claimant’s exhibits 1 through 14 and defendants’ exhibits A through E.

ISSUES

The stipulations of the parties contained within the hearing report filed at the time of hearing are accepted and incorporated into this decision by reference to that report. Pursuant to those stipulations, claimant was single, and entitled to one exemption on the date of injury. Gross weekly earnings were $270.48, resulting in a weekly rate of compensation of $178.36.

The issues to be resolved are: HYDE V. FLYING J, INC. Page 2

1. Whether claimant sustained an injury on November 5, 2001 that arose out of and in the course of his employment;

2. Whether the alleged injury is the cause of claimed temporary and permanent disabilities;

3. The extent of claimant's entitlement to temporary disability, if any;

4. The extent of claimant's entitlement to permanent partial disability to the body as a whole, if any; and

5. Whether claimant is entitled to payment of certain medical costs as fair and reasonable costs incurred for reasonable and necessary treatment rendered for a work related injury.

FINDINGS OF FACT AND ANALYSIS

The undersigned deputy workers' compensation commissioner, having heard the testimony and considered the evidence, finds:

Claimant is a 43 year-old high-school graduate. He has attended some college and is currently enrolled in community college working toward an associate of arts degree in sociology. Claimant has past work experience as a cook, in construction, and in janitorial cleaning.

Prior to as a work injury claimant had had multiple involuntary commitments for mental health and substance abuse disorders. He has been diagnosed with abuse of alcohol, cocaine and marijuana as well as with schizoaffective disorder and substance induced mood disorder.

J. Michael Bertroche, D.O., claimant's primary mental health care physician, also has diagnosed claimant with mixed personality disorder with narcissistic and antisocial features. This doctor has noted that while claimant has good veracity when sober, when claimant is abusing substances, claimant is not very dependable with his word, can be very deceptive and can be very gamy, manipulative, superficial and evasive. (Exhibit B, pages 17, 21, 29, 42 and 43)

Claimant had been discharged from inpatient care on July 25, 2002. Dr. Bertroche then felt that claimant had a good prognosis if he were compliant with his treatment program. (Ex. B, p. 44)

Claimant was living at a halfway house in fall 2002. Apparently, claimant then was treatment compliant. As part of the requirements of his halfway house program, claimant was to seek and maintain employment.

Claimant began work for the employer on October 4, 2002 as a dishwasher. The employer trained claimant for front-line or short order cooking duties. Claimant had been working as a front line cook for approximately one week as of November 5, 2002. HYDE V. FLYING J, INC. Page 3

Claimant testified that on November 5, 2002, he had left the front line area to deliver items to the dish area and, as he was returning to the front-line area, he slipped on a piece of food that was laying on the floor, fell into the prep food cart and then fell onto the floor. Claimant acknowledged that he had fallen immediately in front of the door at which food servers routinely enter the kitchen to retrieve customer food orders. Claimant thought Cody Kerns, a food server, had seen him fall. Ms. Kerns denied this.

Claimant testified that he attempted to walk off his pain but was unable to do so. He left the front line and went to the break room. Wanita Diehl, who was the employer's buffet cook on November 5, 2002, acknowledged that claimant stated he had fallen and directed her to take over the front-line cook duties.

Kathleen J. Smith, who was general manager of the Flying J on November 5, 2002, stated that she was working the cash register when another worker advised her that claimant was in the break room and reported he had fallen. Ms. Smith went to the break room to investigate. She ascertained that claimant was wearing nonskid shoes, as the employer requires. Ms. Smith indicated that she inspected the area where claimant purportedly had fallen and saw nothing on the floor. She did not observe grease on claimant's clothing. Ms. Smith reported that Josh, the dishwasher, both denied seeing claimant fall and had advised her that claimant had hurt his back while working at his own janitorial cleaning business. Ms. Smith maintains that a rubber mat covered the area where claimant alleges he fell. Cody Kerns testified that she could not recall a mat being in the area between the dishwasher and the line cook.

A coworker subsequently took claimant to the Trinity Hospital Emergency Department. There, claimant gave a medical history consistent with his testimony at hearing, and complained of central low back pain. Claimant refused pain medication or narcotics as he felt their use would be contrary to his substance abuse treatment program. (Ex. 3, pp. 1-7)

Claimant's testimony as regards having sustained a fall at work at the Flying J on November 5, 2002 is expressly found to be credible. Those inconsistencies between claimant's testimony and the testimony of defendants’ witnesses are minor and do not undermine the overall plausibility of claimant's reported fall at work. Defendants did not call the dishwasher, the only individual who purportedly had actual knowledge of claimant's having injured himself elsewhere. Hence, this deputy did not have the opportunity to independently assess the credibility of the dishwasher’s purported statements.

It is expressly found that on November 5, 2002, claimant sustained a slip and fall at work while carrying out his duties as a line cook for the employer.

Claimant continued to follow with Trinity Regional Hospital. Initially, he was treated with physical therapy and a muscle relaxant. When his pain did not improve significantly, he was referred to orthopedic surgeon, Anthony D’ Angelo, Jr., D.O. Dr. D’ Angelo advised that claimant undergo an MRI. That MRI showed a protruding disk at L5/S1 and a bulging disk at L4/5. Both are centrally located. (Ex. 3, p. 42) HYDE V. FLYING J, INC. Page 4

Dr. D' Angelo diagnosed claimant as having acute lumbar strain and sprain. The doctor referred claimant to pain specialist, Michael A. Swanson, M.D., for an epidural steroid injection. Dr. Swanson noted that claimant had radicular leg pain in the S1 distribution. (Ex. 8, p. 1) This pain resolved after the injection although claimant continued to have residual low back pain. (Ex. 7, p. 2)

As of January 13, 2003, Dr. D'Angelo recommended that claimant increase his activities as tolerated and stated that claimant could return to work with a restriction of no lifting of more than 15 pounds and no work for over 2 hours without a 10-15 minute break. (Ex. 7, p. 2)

Claimant has never returned to work for the employer. Ms. Smith and claimant provided discrepant testimony as to why claimant did not return to employment at the Flying J subsequent to the work injury and as to whether the employer would have accommodated claimant. What is clear is that the employer did not offer claimant suitable work within his restrictions on or after January 13, 2003.

Claimant saw Dr. D' Angelo on January 27, 2003 with continued complaints of back pain and no leg pain. Claimant did not return to Dr. D’ Angelo after that until April 23, 2003. Claimant then returned to Dr. D’ Angelo’s office at his attorney's request. Claimant stated that he had developed some return of low back pain radiating to the right lower extremity. Claimant was uncertain as to whether his back or his leg was more painful. Claimant had a normal gait, could heel and toe walk, had grade five muscle strength throughout and had normal deep tendon reflexes. Stretch signs were negative for radiculopathy. Dr. D' Angelo released claimant to return to work without restrictions and referred claimant to Eugene Collins, M.D., a neurosurgeon.

Dr. Collins examined claimant on April 29, 2003. Dr. Collins felt that while claimant had protruding discs at L4/5 and L5/S1, claimant did not have any frank herniation. The doctor did not believe that claimant was a candidate for surgery, as he did not have discreet radiculopathy. (Ex. 6, p. 1)

Claimant next saw Dr. D' Angelo on May 14, 2003. Claimant then reported that he had off and on back pain, most of it tolerable. Claimant had good motion in his spine although he reported back pain and occasional right hip pain with movement. Neurologically claimant was intact with grade five muscle strength throughout. (Ex. 7, p. 12)

In his April 28, 2004 deposition, Dr. D' Angelo stated that based on claimant's medical history, Dr. D’ Angelo believed that claimant's back pain developed as a result of his injury at work. The doctor opined that given claimant's low back pain and the abnormalities on his MRI, he should avoid performing strenuous heavy activity. Dr. D' Angelo did state that he had not felt that claimant needed lifting restrictions as of May 14, 2003 and that claimant could continue to work as a cook. (Ex. 13, pp. 10-13)

Thomas J. Hughes, M.D., an occupational medicine specialist, performed a medical evaluation of claimant on July 17, 2003. This examination was at defendants’ HYDE V. FLYING J, INC. Page 5 request. The doctor felt that claimant had several inconsistencies on examination including an extraordinary limitation of spinal motion with almost unremarkable straight leg raising test. Claimant also had back pain with rotation of the hips and back pain with Patrick and Faber tests, even though those maneuvers test for hip abnormalities. Dr. Hughes did not believe that claimant's MRI findings specifically correlated with claimant's physical symptoms or physical examination findings. Dr. Hughes did not believe that claimant had any structural or anatomic injury for which permanent partial impairment rating was warranted. The doctor opined claimant had zero percent impairment of the whole person under DRE Lumbar Category I of the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition. (Ex. C, pp. 4-5)

Jeffrey Coe, M.D., also an occupational medicine specialist, performed in independent medical evaluation of claimant on February 18, 2004. Claimant then complained of bilateral low back pain that radiated into both legs. He reported that lifting, bending, prolonged sitting or walking, stair climbing or descending, all made his pain worse. Claimant reported he had difficulty sleeping on account of his low back pain. (Ex. 2, p. 4)

Dr. Coe felt that claimant then had trigger points in the paralumbar musculature and tenderness over the right sciatic notch. He felt that claimant had decreased range of motion of the lumbar spine in flexion, extension and bilateral bending with associated weakness of the right leg in flexion/extension of the knee and decreased sensation in the outer border of the right leg, ankle and foot. The doctor felt these findings were consistent with continued irritation of the right lumbar nerve roots with both motor and sensory involvement. (Ex. 2, p. 6)

Dr. Coe causally related claimant's February 2004 symptoms and impairment to his work injury and opined that claimant had a 26 percent impairment of the body as a whole under the Guides, Fifth Edition, with 24 percent impairment of the person due to sensory and motor deficits in the L5/S1 distribution and 2 percent due to decreased extension of the lumbar spine. (Ex. 2, p. 6)

Dr. Hughes' opinions as to whether claimant has any permanent impairment as a result of his work incident are accepted over the countervailing opinions of Dr. Coe. Dr. Hughes’ opinions are more consistent with claimant's actual medical findings when claimant's treating physician, Dr. D' Angelo, last examined claimant on May 14, 2003. They also are more consistent with the findings of the examining neurosurgeon, Dr. Collins.

It is expressly found that claimant has no permanent functional residuals that directly relate to his November 5, 2002 work injury.

It is also expressly found that claimant was off work on account of his November 5, 2002 work injury from the date of the injury through April 23, 2003.

Claimant's medical charges with Trinity Hospital, Genesis, and Dr. D' Angelo, Dr. Collins and Dr. Swanson are in evidence. Charges were for treatment of claimant's HYDE V. FLYING J, INC. Page 6 work-related injury. The defendants offered no evidence that the treatment was not reasonable and necessary treatment. They also offered no evidence that the charges for treatment were not fair and reasonable charges.

Claimant’s costs for independent evaluation with Dr. Coe are in evidence. Dr. Coe examined claimant after Dr. Hughes, defendants’ examining physician, had opined claimant had no permanent impairment relating to the work incident.

CONCLUSIONS OF LAW

The first issue presented is whether claimant's sustained an injury that arose on of and in the course of his employment on November 5, 2002.

The party who would suffer loss if an issue were not established ordinarily has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 6.14(6)(e)

The claimant has the burden of proving by of preponderance of the evidence that the alleged injury actually occurred and that it both arose out of and in the course of the employment. Ciha v. Quaker Oats Co., 552 N.W.2d 143 (Iowa 1996); Miedema v. Dial Corp., 551 N.W.2d 309 (Iowa 1996). The words “arising out of” referred to the cause or source of the injury. The words “in the course of” refer to the time, place, and circumstances of the injury. 2800 Corp. v. Fernandez, 528 N.W.2d 124 (Iowa 1995). An injury arises out of the employment when a causal relationship exists between the injury and the employment. Miedema, 551 N.W.2d 309. The injury must be a rational consequence of a hazard connected with the employment and not merely incidental to the employment. Koehler Electric v. Wills, 608 N.W.2d 1 (Iowa 2000); Miedema, 551 N.W.2d 309. An injury occurs “in the course of” employment when it happens within a period of employment at a place where the employee reasonably may be when performing employment duties and while the employee is fulfilling those duties or doing an activity incidental to them. Ciha, 552 N.W.2d 143.

It is concluded that claimant has established that claimant sustained an injury that arose out of and in the course of his employment on November 5, 2002.

The next issue presented is whether claimant's claimed temporary and permanent disability relate to his established injury.

The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Frye v. Smith-Doyle Contractors, 569 N.W.2d 154 (Iowa App. 1997); George A. Hormel & Co. v. Jordan, 569 N.W.2d 148 (Iowa 1997); Sanchez v. Blue Bird Midwest, 554 N.W.2d 283 (Iowa App. 1996) HYDE V. FLYING J, INC. Page 7

The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Supportive lay testimony may be used to buttress the expert testimony and, therefore, is also relevant and material to the causation question. The weight to be given to an expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts the expert relied upon as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. St. Luke’s Hosp. v. Gray, 604 N.W.2d 646 (Iowa 2000); IBP, Inc. v. Harpole, 621 N.W.2d 410 (Iowa 2001); Dunlavey v. Economy Fire and Cas. Co., 526 N.W.2d 845 (Iowa 1995). Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417 (Iowa 1994). Unrebutted expert medical testimony cannot be summarily rejected. Poula v. Siouxland Wall & Ceiling, Inc., 516 N.W.2d 910 (Iowa App. 1994).

While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961).

When an injured worker has been unable to work during a period of recuperation from an injury that did not produce permanent disability, the worker is entitled to temporary total disability benefits during the time the worker could not work. Those benefits are payable until the employee has returned to work, or is medically capable of returning to work substantially similar to the work performed at the time of injury. Section 85.33 (1)

It is concluded that claimant has established that claimant had a period of temporary total disability causally related to his work injury for which he was actually off work from the date of injury through April 23, 2003.

It is concluded that claimant has not established that he has sustained any permanent partial disability as a result of his November 5, 2002 to work injury

The final issue considered relates to payment of disputed medical costs.

Evidence in administrative proceedings is governed by section 17A.14. The agency’s experience, technical competence, and specialized knowledge may be utilized in the evaluation of evidence. The rules of evidence followed in the courts are not controlling. Findings are to be based upon the kind of evidence on which reasonably prudent persons customarily rely in the conduct of serious affairs. Health care is a serious affair.

Prudent persons customarily rely upon their physician’s recommendation for medical care without expressly asking the physician if that care is reasonable. Proof of HYDE V. FLYING J, INC. Page 8 reasonableness and necessity of the treatment can be based on the injured person’s testimony. Sister M. Benedict v. St. Mary’s Corp., 255 Iowa 847, 124 N.W.2d 548 (1963)

It is said that “actions speak louder than words.” When a licensed physician prescribes and actually provides a course of treatment, doing so manifests the physician’s opinion that the treatment being provided is reasonable. A physician practices medicine under standards of professional competence and ethics. Knowingly providing unreasonable care would likely violate those standards. Actually providing care is a nonverbal manifestation that the physician considers the care actually provided to be reasonable. A verbal expression of that professional opinion is not legally mandated in a workers' compensation proceeding to support a finding that the care provided was reasonable. The success, or lack thereof, of the care provided is evidence that can be considered when deciding the issue of reasonableness of the care. A treating physician’s conduct in actually providing care is a manifestation of the physician’s opinion that the care provided is reasonable and creates an inference that can support a finding of reasonableness. Jones v. United Gypsum, File 1254118 (App., May 16, 2002); Kleinman v. BMS Contract Services, Ltd., No. 1019099 (App. September 8, 1995); McClellon v. Iowa Southern Utilities, File No. 894090 (App. January 31, 1992). This inference also applies to the reasonableness of the fees actually charged for that treatment.

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. 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.

Defendants are responsible only for reasonable fees associated with claimant's independent medical examination. Claimant has the burden of proving the reasonableness of the expenses incurred for the examination. See Schintgen v. Economy Fire & Casualty Co., File No. 855298 (App. April 26, 1991). Defendants' liability for claimant's injury must be established before defendants are obligated to reimburse claimant for independent medical examination. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980)

It is concluded that claimant has established entitlement to payment of his medical costs for treatment rendered by Trinity Hospital, Genesis, Dr. D’ Angelo, Dr. Collins, and Dr. Swanson.

It is concluded that claimant has established entitlement to reimbursement of the costs related to his independent medical examination with Dr. Coe. HYDE V. FLYING J, INC. Page 9

THEREFORE, IT IS ORDERED:

That defendants pay claimant temporary total disability benefits at the weekly rate of one hundred seventy-eight and 36/100 dollars ($178.36) from his November 5, 2002 injury through April 23, 2003.

That defendants pay accrued amounts in a lump sum and pay interest as section 85.30 provides.

That defendants pay claimant his medical costs with the Trinity Hospital, Genesis, Dr. D'Angelo, Dr. Collins and Dr. Swanson.

That defendants reimburse claimant for costs of his independent medical evaluation examination with Dr. Coe.

That defendants pay costs of this proceeding as the applicable rule and statutes provide.

That defendants file subsequent reports of injury as this division requires.

Signed and filed this ___28th_____ day of May, 2004.

______HELENJEAN M. WALLESER DEPUTY WORKERS’ COMPENSATION COMMISSIONER

Copies to:

Mr. Robert K. Leyshon Attorney at Law P.O. Box 4298 Rock Island, IL 61204-4298

Mr. Paul F. Prentiss Attorney at Law 8712 W Dodge Rd., Ste. 401 Omaha, NE 68114-3419

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