before the iowa workers’ compensation commissionerdecisions.iowaworkforce.org › 2014 ›...

BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER______________________________________________________________________

:ANN MARIE JANES, : File No. 5038369

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

:vs. : D E C I S I O N

: EXPRESS EMPLOYMENT :PROFESSIONALS, :

:Employer, :

:and :

:ILLINOIS NATIONAL INSURANCE :COMPANY, : Head Note Nos.: 1100, 1802, 1803, 3000

:Insurance Carrier, : Defendants. :

______________________________________________________________________

STATEMENT OF THE CASE

Claimant, Ann Marie Janes filed a petition in arbitration seeking workers’ compensation benefits from Express Employment Professionals, employer, and Illinois National Insurance Company, insurance carrier, both as defendants, as a result of an alleged injury sustained on December 30, 2009. This matter came on for hearing before Deputy Workers’ Compensation Commissioner, Erica J. Fitch, on August 19, 2013, in Des Moines, Iowa. The record in this case consists of claimant’s exhibits 1 through 8 and 12, defendants’ exhibits A through C and E through P, and the testimony of the claimant, Lauri Henderson, and Shanae Janes. The parties submitted post-hearing briefs, the matter being fully submitted on October 25, 2013.

ISSUES

The parties submitted the following issues for determination:

1. Whether claimant sustained an injury on December 30, 2009 which arose out of and in the course of employment;

2. Whether the alleged injury is a cause of temporary disability;

JANES V. EXPRESS EMPLOYMENT PROFESSIONALS

3. Whether claimant is entitled to temporary disability benefits from June 12, 2011 to the present and continuing;

4. Whether the alleged injury is a cause of permanent disability;

5. The extent of permanent disability to the scheduled member bilateral arms;

6. The commencement date for permanent partial disability benefits;

7. The rate of compensation;

8. Whether claimant is entitled to reimbursement for an independent medical evaluation pursuant to Iowa Code section 85.39;

9. Whether defendants are entitled to a credit for overpayment of indemnity benefits; and

10.Specific taxation of costs.

The stipulations of the parties in the hearing report are incorporated by reference in this decision.

By post-hearing brief, claimant raised an additional issue of entitlement to penalty benefits pursuant to Iowa Code section 86.13. Claimant bases her claim for penalty benefits on defendants’ termination of temporary disability benefits. Upon review of the pleadings, hearing report, and transcript of the evidentiary hearing, there is no reference to claimant claiming entitlement to penalty benefits. As claimant failed to raise such a claim until after the evidentiary hearing was held and evidentiary record was closed, the undersigned will not consider claimant’s claim for penalty benefits.

FINDINGS OF FACT

The undersigned, having considered all of the evidence and testimony in the record, finds:

Claimant’s testimony was consistent as compared to the evidentiary record and her deposition testimony. Her demeanor at the time of evidentiary hearing gave the undersigned no reason to doubt claimant’s veracity. Claimant is found credible.

Claimant was 48 years of age at the time of hearing. Claimant is married with two grown children, ages 20 and 21. Both children were minors on the alleged date of injury of December 30, 2009. At the time of the alleged injury, claimant was married, although she has since divorced. Claimant’s education consists of attendance into the 12th grade, yet claimant did not graduate high school. She subsequently earned her

Right to Appeal: This decision shall become final unless you or another interested party appeals within 20 days from the date above, pursuant to rule 876-4.27 (17A, 86) of the Iowa Administrative Code. The notice of appeal must be in writing and received by the commissioner’s office within 20 days from the date of the decision. The appeal period will be extended to the next business day if the last day to appeal falls on a weekend or a legal holiday. The notice of appeal must be filed at the following address: Workers’ Compensation Commissioner, Iowa Division of Workers’ Compensation, 1000 E. Grand Avenue, Des Moines, Iowa 50319-0209.


GED. Claimant’s post-secondary education consists of a few classes in hairstyling and a semester of coursework in business management. (Claimant’s testimony) Following leaving high school in 1983, claimant procured employment operating a mail sorting machine, production, assembly, machine operator, laborer, stay-at-home mother, and ultimately, for defendant-employer. (Claimant’s testimony; Exhibit L, pages 2-3) Claimant is right-hand dominant. (Claimant’s testimony)

Claimant’s medical history reveals treatment for work-related mild tendinitis of the right arm. Her former employer offered care; claimant estimated she received such care sometime between 1999 and 2001. Treatment included physical therapy and muscle relaxers. The condition resolved within approximately one month. Claimant denied any reoccurrence in symptoms prior to her employment with defendant-employer. (Claimant’s testimony; Ex. L, p. 5)

Claimant also underwent treatment for left wrist pain in 2005. (Claimant’s testimony; Ex. L, p. 4) Alison Carleton, M.D. evaluated claimant on February 24, 2005 for complaints of left wrist pain of a couple days’ duration with occasional catching and decreased range of motion. Examination revealed decreased range of motion and some tenderness to palpation; x-rays revealed no bony abnormalities. Dr. Carleton assessed left wrist pain and prescribed an anti-inflammatory. (Ex. 7, pp. 1, 3; Ex. C, p. 1) Claimant testified she also received a wrist splint. She reported resolution of her symptoms within a couple weeks of seeking Dr. Carleton’s care. (Claimant’s testimony; Ex. L, p. 4)

Claimant returned to Dr. Carleton on August 25, 2005 with complaints of some numbness of the left side of her body, including the left arm, leg, and foot. Dr. Carleton referred claimant for further diagnostic testing and neurology consultation. (Ex. C, p. 2) Claimant returned to Dr. Carleton with similar complaints on September 27, 2005. On that occasion, claimant reported numbness in the left arm and leg, as well as the feeling of decreased grip strength in the left as compared to right hand. (Ex. C, p. 3)

In the fall of 2009, claimant sought work through defendant-employer, a temporary staffing agency. She received a placement on the production line for Winnebago beginning November 30, 2009. Her duties required construction of wardrobes for recreational vehicles which varied in size and style, but could reach seven feet tall by three or four feet wide. Claimant constructed the wardrobes out of panels, screws, and brackets, using a schematic. Claimant testified she constructed three wardrobes per shift, each requiring placement of over 50 brackets and two to four screws per bracket. She utilized an air impact power screw gun, a battery screw gun, and hand tools. Claimant estimated working at or above shoulder height approximately 40 to 50 percent of her work day, while utilizing vibrating power tools approximately 75 percent of the shift. She estimated the power screw gun she used weighed three to five pounds. Claimant testified her work necessitated awkward hand positions, and



although she is right-hand dominant, she needed to use both hands to hold the power tools. (Claimant’s testimony; Ex. M, p. 7)

Claimant testified after a few weeks at Winnebago, she developed a burning sensation from her left elbow to fingers, akin to holding an electric fence. Thereafter she developed similar symptoms in the right arm. Symptoms included aching, burning, numbness and tingling of the bilateral hands, extending primarily from the elbows to the last two fingers on her hands. The symptoms were present daily and impacted her ability to sleep. Claimant testified while her complaints began more as soreness, one night she developed pain so severe in her bilateral arms that it awoke her from sleep. (Claimant’s testimony) At deposition, claimant testified she began noticing symptoms of her bilateral upper extremities in mid-December, within two to three weeks of her start date at Winnebago. She reported an onset of symptoms when a burning sensation of the bilateral arms awoke her from sleep one night. Claimant reported the symptoms stretched from her bilateral elbows to wrists. (Ex. M, pp. 7-8) Claimant testified she attempted to continue working with her bilateral upper extremity symptoms, but eventually reported the issue to defendant-employer on or about January 8, 2010. Defendants referred claimant for medical attention. (Claimant’s testimony)

Claimant distinguished the bilateral upper extremity pain she relates to her placement at Winnebago from her prior bouts with right wrist tendinitis and left wrist pain. With regard to the right upper extremity, claimant testified her prior pain was located more in the hand, while after the alleged work injury, the pain stretched from her hand, through the wrist and up to her elbow. With regard to the left hand, claimant testified her prior 2005 incident was limited to pain, whereas after the alleged work injury, she also developed numbness. (Claimant’s testimony)

Claimant presented to Mercy Occupational Health on January 14, 2010 and was evaluated by James Conroy, M.D. Dr. Conroy noted a history of injuries sustained in December 2009, specifically a gradual onset of bilateral wrist and arm pain while using a screw gun in both hands to assemble cabinets. Claimant reported beginning her job placement six weeks prior and development of symptoms within two weeks thereafter, with such symptoms recently becoming intolerable. Dr. Conroy noted complaints of paresthesias of the bilateral hands, left greater than right, and bilateral hand pain with radiation up the left proximal wrist which interfered with sleep. Dr. Conroy assessed a cumulative work injury with bilateral carpal tunnel syndrome, wrist tendinitis, and secondary sleep deprivation from nocturnal pain. He performed a steroid injection, recommended bilateral wrist splints, and imposed work restrictions of a five-pound maximum lift. (Ex. 3, pp. 33-34)

Upon claimant’s return to Dr. Conroy on January 20, 2010, Dr. Conroy ordered nerve conduction studies and prescribed nabumetone. (Ex. 3, p. 32) Claimant underwent EMG testing with Rajinder Verma, M.D., on February 4, 2010. Dr. Verma



opined the EMG demonstrated the presence of bilateral mild carpal tunnel syndrome. Dr. Verma opined claimant’s symptoms related to a combination of nonspecific tendinitis and a mild degree of bilateral carpal tunnel syndrome. A work restriction of minimization of repetitious movements at the wrists was imposed. Dr. Verma also recommended use of an NSAID, wrist braces, and warm soaks. (Ex. 3, pp. 28-30; Ex. A, p. 1)

On February 11, 2010, claimant presented to Dr. Conroy with continued bilateral hand complaints. Claimant denied prior wrist complaints and related her symptoms entirely to the use of a screw gun at work. Dr. Conroy noted a complaint of painful paresthesias, which claimant related to use of a screw gun. He opined claimant’s NCV studies demonstrated bilateral mild carpal tunnel syndrome with some increased latencies involving the median nerve, but normal appearance of the ulnar nerves. Dr. Conroy opined the EMG assessment was “discordant” with claimant’s examination findings. He assessed a “work injury” of bilateral wrist and hand pain, consistent with ulnar neuropathy and carpal tunnel. After noting a prior steroid injection offered no relief, Dr. Conroy prescribed Tramadol and imposed work restrictions. (Ex. 3, p. 26; Ex. A, p. 2)

Claimant returned to Dr. Conroy on February 25, 2012. Dr. Conroy opined claimant’s EMG revealed findings more likely indicative of tendinitis than neuropathy. Following examination, Dr. Conroy assessed bilateral flexor tendinitis of the 3rd through 5th fingers. Dr. Conroy ordered a course of physical therapy and offered claimant a course of oral corticosteroids. Claimant declined the steroids; a choice Dr. Conroy noted was reasonable. (Ex. 3, p. 25)

At physical therapy on March 4, 2010, claimant reported a gradual onset of symptoms while operating a screw gun. (Ex. 4, p. 5)

On March 18, 2010, claimant returned to Dr. Conroy and reported symptoms predominantly in the bilateral 4th and 5th fingers. Dr. Conroy assessed bilateral wrist tendinitis. Claimant indicated she desired to continue physical therapy. Dr. Conroy agree and prescribed additional physical therapy, as well as issued a prescription for nabumetone and continued work restrictions. (Ex. 3, p. 24)

Claimant returned to Dr. Conroy on April 1, 2010. Dr. Conroy indicated claimant presented in followup of bilateral flexor tendinitis of the fourth and fifth fingers, which developed following use of a screw gun. Dr. Conroy recommended continued light duty and prescribed Arthrotec and amitriptyline. (Ex. 3, p. 23)

Claimant completed the prescribed course of physical therapy and was discharged on April 9, 2010. (Ex. 4, pp. 1-12, 16-18)



On April 29, 2010, claimant presented to Mercy Occupational Health and was evaluated by Garry Cole, D.O. Dr. Cole noted a history of a repetitive use injury, with claimant complaining of numbness, tingling, and weakness of the bilateral hands. Claimant reported pain radiating up the left forearm, paresthesias of the bilateral hands, and difficulty sleeping. Dr. Cole assessed bilateral carpal tunnel, not improving. Dr. Cole recommended continuation of claimant’s work restrictions pending transfer of claimant’s care to orthopedics. (Ex. 3, p. 22)

At the arranging of defendants, claimant presented to the Mason City Clinic on May 13, 2010 for evaluation with Richard Rattay, M.D. Dr. Rattay recorded a history of development of soreness throughout the elbows, forearms, wrists, and hands, left greater than right, in approximately mid-December 2009. Claimant complained of aching, numbness and tingling of her bilateral upper extremities. Claimant also reported the aching she developed in her hands would wake her from sleep. Dr. Rattay opined claimant’s EMG showed evidence of bilateral mild carpal tunnel syndrome. (Ex. 3, pp. 16-18)

Dr. Rattay assessed bilateral cubital tunnel syndrome and ulnar compressive neuropathy at Guyon’s canal of the left wrist. He noted while the EMG did not reveal significant findings, claimant presented as significantly symptomatic clinically. Dr. Rattay indicated claimant’s carpal tunnel was not significant enough to warrant surgery at that time, but claimant’s ulnar nerve symptoms were significant, including constant numbness, tingling, and objective weakness. (Ex. 3, pp. 16-18)

In terms of treatment, Dr. Rattay opined further conservative measures were likely to result in further permanent nerve damage. He therefore recommended surgical intervention, consisting of submuscular transposition of the ulnar nerve at the elbow, proceeding with the left upper extremity first. During surgery, Dr. Rattay indicated he would also perform a release of the ulnar nerve at the left wrist. He indicated the goal of surgery was to prevent further worsening and stated all or a portion of claimant’s symptoms may remain despite surgical treatment. Dr. Rattay indicated claimant may experience improvement over the course of six months following surgery; however, if claimant did not improve, the level of symptoms she then possessed would remain permanent. He related these potential permanent symptoms to the compression neuropathy. Dr. Rattay expressed belief claimant would likely have residual numbness, tingling, and weakness, despite undergoing surgery. Claimant indicated she would like to discuss the recommended surgery with her attorney prior to proceeding. (Ex. 3, pp. 16-18)

Prior to undergoing surgery, claimant requested and defendants granted a second opinion. (Claimant’s testimony) On June 16, 2010, claimant presented to the Mayo Clinic for a surgical second opinion evaluation with Marco Rizzo, M.D. Claimant complained of bilateral hand numbness and tingling, left greater than right. Dr. Rizzo



opined claimant’s February 2010 EMG revealed bilateral mild carpal tunnel syndrome. Due to claimant’s reports of neck pain, Dr. Rizzo recommended a repeat EMG to determine the source of claimant’s symptoms. Dr. Rizzo opined claimant’s examination demonstration was fairly consistent with cubital tunnel syndrome. (Ex. 5, pp. 1-2)

Dr. Rizzo assessed bilateral hand numbness and tingling, primarily in the ulnar side of the hand, with ulnar nerve irritation. He opined despite the negative EMG, claimant’s symptoms pointed to difficulties with the ulnar nerve, assuming a neck condition was not causing the symptoms. Dr. Rizzo noted he agreed with Dr. Rattay in that claimant may benefit from surgery. (Ex. 5, pp. 1-2)

Claimant returned to Dr. Rattay on July 27, 2010 to discuss surgical options. Claimant indicated she wished to proceed only with the ulnar nerve release at the elbow, and not with the transposition. Dr. Rattay commemorated a plan to proceed with ulnar nerve releases at the left elbow and left wrist. (Ex. 3, pp. 14-15)

Dr. Rattay performed surgery on September 9, 2010, consisting of ulnar nerve releases at the left elbow and left wrist. He noted a diagnosis of left ulnar nerve compressive neuropathy at the elbow and wrist. (Ex. 6, pp. 1-2)

Following left upper extremity surgery, claimant returned to Dr. Rattay on September 21, 2010. Claimant reported improved sensation, strength, and motion. Dr. Rattay advised claimant to utilize a home exercise program and return in one months’ time. (Ex. 3, p. 12; Ex. A, p. 4)

The record contains a medical note of Dr. Rattay also dated September 21, 2010. This date seems to be in error, as the record seemingly reflects a return appointment on or about October 19, 2010. At that time, claimant reported improved sleep post-surgery and some increase in strength, but continued paresthesias, numbness, tenderness and burning at the elbow. Dr. Rattay noted claimant had regained most motion and function at the elbow. He recommended a continued home exercise program, with claimant to be off work for a minimum of the next two months. (Ex. 3, pp. 10-11)

Claimant returned to Dr. Rattay on December 14, 2010 with reports of continued pain of the left elbow and forearm, paresthesias and numbness in the small and ring fingers of the left hand, and a new symptom of some paresthesias of the long finger of the left hand. Claimant also reported a symptomatic right upper extremity. Dr. Rattay ordered an EMG to evaluate. (Ex. 3, p. 9)

On January 25, 2011, claimant underwent EMG/NCV studies with Sant Hayreh, M.D. Dr. Hayreh opined the results were normal in the left median and ulnar nerves, except for slight comparative slowing across the wrist in the left median



nerve. Dr. Hayreh opined this finding was nonspecific, but may be compatible with very early left carpal tunnel syndrome. (Ex. 3, pp. 5-6; Ex. A, p. 5)

Claimant returned to Dr. Rattay on February 1, 2011. She reported continued bilateral upper extremity symptoms. Dr. Rattay reviewed claimant’s EMG/NCV and opined it revealed no evidence of worsening with regard to ulnar nerve function and no evidence of motor denervation. Examination revealed decreased muscle tone on the left lower forearm as compared to the right side. Dr. Rattay assessed atypical left upper extremity pain and weakness, status post ulnar nerve release at the elbow and wrist. Claimant indicated she desired not to undergo additional surgery on the right until the left upper extremity improved. Dr. Rattay recommended repeat evaluation at the Mayo Clinic Neurology Department and indicated a muscle biopsy may be required. In the event claimant did not pursue further evaluation, Dr. Rattay recommended an FCE to evaluate claimant’s need for permanent restrictions on the bilateral upper extremities. (Ex. 3, pp. 2-3)

Following Dr. Rattay’s recommendation for a repeat evaluation at the Mayo Clinic, claimant testified she telephoned defendants’ third party administrator. Claimant testified she did not receive a return phone call, and no additional medical care was scheduled. Claimant subsequently received notification defendants had scheduled her for evaluation by Scott Neff, D.O. (Claimant’s testimony)

At defendants’ arranging, claimant presented to orthopedic surgeon, Dr. Neff, on April 11, 2011 for an independent medical evaluation. In addition to interview and examination of claimant, Dr. Neff also reviewed claimant’s medical records and provided commentary on claimant’s care and complaints. (Ex. B, pp. 1-5) During interview, claimant reported feeling as if her left arm was worsening, despite not working at Winnebago since January 15, 2010. (Ex. B, p. 4) Claimant reported she felt worse than she had prior to surgery, also reporting an electrical sensation in the medial aspect of the left arm extending from the left elbow down toward her hand. Due to the worsening of her left-sided symptoms, claimant indicated she did not wish to proceed with surgery on the right. Dr. Neff noted he observed claimant, despite her complaints, texting “rapidly” on her cell phone. (Ex. B, pp. 6-7)

Dr. Neff opined claimant’s EMG of February 2010 showed bilateral mild carpal tunnel syndrome, without discrete signs on examination of median nerve specific dysfunction. He opined a definitive diagnosis of carpal tunnel syndrome should be based upon EMG/NCV studies. (Ex. B, pp. 6-7) On examination, Dr. Neff performed Jamar testing and noted:

This claimant on the right side exhibited a 0/0/0 grip strength and on the left a 0/0/0 grip strength. This response indicates an attempt on the part of the claimant to convince the examiner that pathology exhibits. With



a legitimate inability to grip showing 0 grip force in either hand, it would be difficult for an individual to hold a fork to eat, hold a hair brush, lift up a purse, shop for groceries and put them in a cart; and the findings of 0 grip force on the right and 0 grip force on the left are not reliable but are an attempt on the part of the claimant to convince the examiner of pathology.

(Ex. B, p. 7)

On the question of causation of claimant’s symptoms, Dr. Neff directed attention to the AMA publication Guides to the Evaluation of Disease and Injury Causation. He noted the publication indicated electrodiagnostic testing was the gold standard for issuing a diagnosis of ulnar nerve entrapment at the elbow. Dr. Neff opined, based on this publication, EMG/NCV findings were a prerequisite to issuance of this diagnosis. Dr. Neff elaborated to opine the diagnosis of ulnar nerve entrapment cannot be established absent EMG findings demonstrating involvement of the ulnar nerve and absent such EMG support; all that is left is a symptom complex, which could result from a variety of circumstances. (Ex. B, pp. 6-7) Dr. Neff referenced the AMA publication and stated:

The summary on page 84 of this text is as follows: “scrutiny of the aforementioned literature reviewed leads to the following conclusions: 1. A myth has been perpetuated from one review to another implicating repetitive strain injury as a cause for ulnar nerve entrapment in workers. 2. Reviews on RSI and ulnar nerve entrapment cite no credible medical literature to support this myth…. The only prospective high-quality study showed no causal relationship between RSI and ulnar nerve entrapment.”

The text goes on to state “In summary, no causal relationship between repetitive elbow motion and ulnar neuropathy at the elbow in industrial workers has been demonstrated in the medical literature.”

American Society for Surgery of the Hand (ASSH) and the American Academy of Orthopedic Surgeons (AAOS) neither recognized a diagnosis of “cumulative trauma injury.”

(Ex. B, p. 8)

Dr. Neff opined claimant presented with a history of tendinitis of the elbow which began shortly after beginning a new work activity to which she was previously unaccustomed. Dr. Neff indicated claimant transitioned from non-repetitive, non-vigorous office work to a manufacturing setting. He opined such a change in activity, performing a repetitive activity to which the body was unaccustomed, could lead to muscle soreness and inflammatory changes of the tendons. Dr. Neff explained this



process as akin to a non-bicyclist riding a bicycle 10 miles per day for a week. This activity would result in muscle soreness, but no injury has occurred. (Ex. B, p. 8)

Dr. Neff opined claimant demonstrated symptom magnification, with significant subjective complaints and significant inconsistencies. He directed attention to claimant’s repeated complaints of pain at a level 8 or 9 on a 10-point scale. Dr. Neff also opined claimant’s examination yielded evidence of symptom magnification. During examination, Dr. Neff noted claimant demonstrated a pull-away, painful response with only gentle touch of the medial aspect of the left elbow, as well as wincing and jumping during the course of examination. Dr. Neff opined claimant used descriptive terms which he deemed inappropriate to her circumstances. He also highlighted claimant’s demonstrated grip effort, or lack thereof, on the Jamar apparatus. Dr. Neff indicated claimant reported inability to carry out normal, daily functions, yet he observed her texting rapidly and appearing well-kept in regards to her hair and makeup. Dr. Neff acknowledged the possibility another person had done claimant’s hair and makeup. (Ex. B, pp. 8, 11)

Following interview, records review, and examination, Dr. Neff diagnosed: functional somatic syndrome; chronic pain behavior with symptom magnification; possible neuroma – subcutaneous medial brachial cutaneous nerve, post-surgical; and mild carpal tunnel syndrome, EMG/NCV proven. Dr. Neff opined claimant lacked a definitive post-surgical diagnosis, as subjective complaints of pain, soreness, and resultant disability are not diagnoses. He indicated claimant exhibited no objective findings, but only extensive pain behavior with symptom magnification. Dr. Neff opined claimant’s presentation lacked evidence or proof of ulnar nerve dysfunction other than subjective complaints. He reasoned per the EMG/NCV studies, there was no evidence of ulnar nerve entrapment at the elbow or wrist. He also noted cubital tunnel syndrome and carpal tunnel syndrome are conditions not generally associated with a great deal of pain, but rather, with numbness and tingling. Dr. Neff identified one exception, at the end stages of carpal tunnel syndrome when the nerve has become ischemic, a situation claimant did not demonstrate. He described carpal tunnel syndrome as common in middle-aged patients, occurring ten-times more frequently in females and often arising without external cause. (Ex. B, pp. 4, 8-10)

Dr. Neff elaborated to state pain is a complaint more often associated with muscle soreness, tendinitis, and performing work activities to which a person was previously unaccustomed. (Ex. B, p. 8) Dr. Neff opined claimant’s work activities caused muscle soreness, pain, and tenderness in diffuse muscle, ligament, and tendon structures. (Ex. B, p. 10) He indicated claimant exhibited such muscle soreness and tendonitis secondary to assumption of her new job duties. (Ex. B, p. 9) He cautioned this expression of symptoms did not represent an injury, however. He opined there was not, in fact, a work injury, but rather, “an expression of symptoms with [an] essentially normal workup.” Dr. Neff opined while muscle, ligament, and tendon soreness can



occur with repetitive activity, carpal tunnel syndrome is not caused, contributed to, or aggravated by the work activities to which claimant was exposed. (Ex. B, p. 9) He further opined claimant’s work activities “did not aggravate anything.” (Ex. B, p. 10) Dr. Neff also opined claimant had not suffered a cumulative trauma performing her work duties. He indicated:

[R]epetitive strain injury is a diagnosis commonly used in legal circumstances but not accepted by the American Society of Surgery of the Hands or the American Academy of Orthopaedic Surgeons.

(Ex. B, p. 9)

Dr. Neff opined claimant had achieved maximum medical improvement. He further opined claimant had not sustained permanent impairment nor required permanent restrictions as a result of the alleged work injury because no work injury occurred. (Ex. B, pp. 10-11) Dr. Neff opined claimant’s continued symptoms were not causally related to claimant’s work activities for defendant-employer. Due to claimant’s continued and worsening symptomatology, Dr. Neff indicated claimant had not responded to active treatment. Since claimant had not shown a response to treatment, he recommended claimant seek cervical workup with her personal physician to evaluate a potential neck etiology. He cautioned, however, claimant had not sustained any neck injury at work. Dr. Neff also recommended repeat bilateral upper extremity EMG/NCV studies, to be completed by a different examiner in order to avoid potential prejudice. He expressed no need for claimant to undergo a muscle biopsy. (Ex. B, pp. 9-10)

Finally, Dr. Neff noted claimant underwent surgical intervention with normal EMG/NCV studies. He indicated he personally had performed thousands of carpal tunnel decompressions and hundreds of ulnar nerve decompressions. Never did he perform ulnar nerve surgery without EMG evidence of ulnar nerve entrapment at the elbow or wrist. (Ex. B, p. 11)

Claimant testified her evaluation with Dr. Neff involved only approximately 10 minutes of face-to-face time, with 5 minutes of examination. Claimant described Dr. Neff as standoffish, as if he had a preconceived opinion. She denied texting on her phone, instead indicating she was turning her phone off when Dr. Neff observed her. Claimant testified prior to Dr. Neff’s opinion, no physician had raised a question of the work-relatedness of her complaints. Additionally, no physician had released her to full duty work, and claimant received temporary disability benefits. (Claimant’s testimony)

Shanae Janes, claimant’s daughter, also testified at evidentiary hearing. Ms. Janes testified she accompanied her mother to claimant’s appointment with Dr. Neff. Ms. Janes estimated Dr. Neff spent approximately 5 to 10 minutes in the room with claimant and did not seem concerned with claimant’s well-being. She



acknowledged Dr. Neff performed some examination of claimant, but indicated claimant was asked to squeeze an item and Dr. Neff made a “snarky” comment asking if claimant’s effort was the best she could do. Ms. Janes acknowledged she was only 15 years of age at the time of this evaluation and was uncertain what exactly was happening. (Ms. Janes’ testimony)

Ms. Janes’ testimony was clear and consistent with that of claimant. Her demeanor at the time of evidentiary hearing gave the undersigned no reason to doubt her veracity. Ms. Janes is found credible.

On May 12, 2011, a claims examiner for defendants’ third party administrator authored a letter to claimant. By this letter, claimant was informed Dr. Neff released her to full-duty work effective March 24, 2011. Due to this opinion, the claims examiner advised claimant’s temporary total disability benefits would terminate on June 6, 2011. (Ex. F, p. 1) Upon receipt of this letter, claimant testified she contacted defendant-employer to see if any work was available. When she was told there were no placements, claimant contacted an attorney. (Claimant’s testimony)

Claimant submitted an application for employment at Powerfilm Solar (Powerfilm) on June 27, 2011. On the application, claimant requested production work. Claimant was hired as a seasonal production worker effective July 11, 2011. (Ex. H, pp. 1-2) The job description for the position of production assembler outlines duties of assembling electronic components, subassemblies, products, and systems. Physical requirements included the ability to move items weighing up to 30 pounds without assistance. (Ex. H, pp. 3-5) As a production worker, claimant earned $10.00 per hour base pay and $15.00 per hour for overtime. (Ex. H, pp. 6-13)

Claimant testified she held two production jobs at Powerfilm. The first position involved attaching solar panels to canvasses, completing one panel every five minutes. She used both hands in her duties. Claimant worked 25 to 40 hours per week in this position and remained on these duties until December 2011. At that time, claimant moved to a position which involved wiring and soldering wires onto panels. Claimant testified she worked four 10-hour shifts per week. During her employment doing the soldering work, claimant testified she continued to suffer with pain and symptoms of her upper extremities and the symptoms, in fact, worsened. Claimant informed her supervisors of these ongoing problems. The symptoms caused claimant to miss work, including calling in to miss shifts and also to leave early on occasions. Eventually, claimant testified the symptoms in her hands and arms became too severe to continue working, and she quit in December 2011. Claimant testified had Powerfilm not moved her from the panel job to the soldering job, she would have been capable of continuing employment. (Claimant’s testimony) During her employment at Powerfilm, claimant worked the following hours:



CHECK DATE REGULAR HOURS OVERTIME HOURS

July 29, 2011 80 7.87

August 12, 2011 72.80 .72

August 26, 2011 80 .95

September 9, 2011 70.18 0

September 23, 2011 59.68 0

October 7, 2011 53.97 0

October 21, 2011 77.62 .32

November 4, 2011 80 5.85

(Ex. H, pp. 6-13)

The evidentiary record contains a series of emails written by employees, assumedly supervisors, at Powerfilm. These emails reference claimant’s absences from Powerfilm due to hand complaints. (Ex. 8, pp. 3-7) One such email, authored by Tim Larson on December 7, 2011, noted claimant was absent from work the prior night. He also indicated he suspected claimant would be of “minimal help” to Powerfilm over the following month. He recommended claimant’s immediate termination. (Ex. 8, p. 11) An email response authored by Gary Cook indicates agreement with Mr. Larson’s sentiment. Mr. Cook also raises a concern regarding Powerfilm’s potential “liability” given claimant’s hand complaints. (Ex. 8, p. 2)

Claimant was involved in a motor vehicle accident on February 8, 2012, when another vehicle ran a stop sign and struck claimant’s vehicle at highway speeds. Claimant testified she sustained multiple facial fractures and a broken nose. Her injuries resulted in claimant undergoing two corrective surgeries. (Claimant’s testimony; Ex. K, p. 1; Ex. L, p. 5) Following the motor vehicle accident, claimant ceased efforts in her work search. Claimant testified she would have been unable to work for approximately six weeks following the accident due to her injuries and resultant surgeries. She also reported developing severe headaches post-accident, with headaches so severe she was unable to rise from bed. Claimant testified this complaint eventually improved, leaving her with headaches but not of such a severe nature. (Claimant’s testimony; Ex. M, pp. 2-3) She ultimately settled her claim against the at-fault driver for $97,500.00 on January 21, 2013. (Ex. K, p. 1; Ex. L, p. 5)



In May 2012, claimant worked one day for Eldora Plastics. Claimant testified her duties involved pounding pieces of plastic from containers. Claimant testified her hands were unable to tolerate such work, and she quit after one day of employment. (Claimant’s testimony)

In June 2012, claimant worked for 1 ½ to 2 weeks at a jewelry store. Claimant testified she worked as counter help. The job ended after 2 weeks, as the employer only required additional assistance for a short period. (Claimant’s testimony)

Claimant submitted an employment application to staffing company, Spherion, on August 29, 2012. Claimant indicated she sought production or warehouse work. (Ex. I, p. 1) Spherion placed claimant at Ivesco, a veterinary supply warehouse from September 13, 2012 through November 26, 2012. Claimant testified she worked as a warehouse laborer, packaging supplies for shipment. Supplies ranged in weight from less than one pound to 50 pounds. With heavier items, claimant sought assistance from a coworker. Claimant also received training in forklift operation and operated a forklift on a limited number of occasions. Claimant testified the job placement ended because of continued upper extremity symptoms. (Claimant’s testimony; Ex. J) During this period of employment, claimant earned approximately $9.50 per hour. Excluding partial weeks, her weekly hours ranged from approximately 20 hours per week to over 40 hours per week, with the majority of those weeks ranging from 34 to 46 hours. (Ex. I, p. 4)

Claimant testified during these periods of intermittent employment, her upper extremity symptoms always remained. The symptoms were less severe when she did not work, while employment aggravated the complaints. Claimant explained the continued symptoms as of the same nature as she developed in 2009. She denied any new trauma or new type of pain. (Claimant’s testimony)

In October 2012, defendants mailed claimant a payment of benefits. Claimant’s attorney requested clarification of what the payment represented. Subsequently, defendants’ attorney advised the check had been issued in error and requested claimant destroy or return said check. Claimant’s attorney advised claimant had since cashed the check. (Ex. N, pp. 1-2)

On November 16, 2012, Dr. Rattay authored a letter indicating he would typically expect to see improvement in claimant’s symptoms once the offending activity was suspended. Despite this expectation, claimant reported persistent symptoms after ceasing work. Dr. Rattay opined claimant’s post-surgical EMG on January 25, 2011 was essentially normal and given this finding, noted he was unable to identify “any objective medical basis for her continued complaints.” Accordingly, Dr. Rattay opined claimant achieved maximum medical improvement on December 14, 2010. He further opined claimant’s treatment options had been exhausted. (Ex. 3, p. 1; Ex. A, p. 6)



On June 18, 2013, claimant submitted an employment application at Jacobson Staffing. Claimant indicated she desired employment in production. (Ex. O, p. 1) Claimant was placed at Innovative Lighting on June 26, 2013. Her position was as a production laborer, earning $9.00 per hour. Claimant testified she assembled small LED lights and performed soldering work. Claimant indicated these tasks aggravated her symptoms slightly, but the placement was not long enough in duration to cause significant problems. The assignment ended on August 16, 2013. (Claimant’s testimony; Ex. L, pp. 2-3; Ex. O, pp. 5-6)

On June 9, 2013, Dr. Neff authored a letter to defendants’ counsel. Dr. Neff indicated he reviewed claimant’s past medical records and her deposition. He noted claimant reported use of the screw gun in her right hand and observed, it did not “make sense” such activity would cause symptoms in claimant’s left upper extremity. (Ex. B, p. 13) Dr. Neff also opined claimant underwent surgery prior to proving the existence of cubital tunnel syndrome. In such instances, he deemed it unsurprising claimant’s symptoms persisted after both surgery and cessation of the offending work activity. Despite continued complaints, Dr. Neff opined it appeared claimant was capable of performing hand and wrist activities as part of her duties at Powerfilm. Assuming this as true, Dr. Neff opined any progressive symptoms after ceasing work for defendant-employer could not be properly attributed to claimant’s employment with defendant-employer. (Ex. B, pp. 13-14)

Board-certified occupational medicine physician, Mark Taylor, M.D., performed claimant’s independent medical evaluation on July 11, 2013. Dr. Taylor issued a report containing his findings on August 2, 2013. (Ex. 1; Ex. 2, p. 1)

Claimant provided a history of her work duties building wardrobes for RVs. Claimant explained she installed brackets with a screw gun, with each wardrobe requiring 40 to 50 brackets and 2 to 4 screws per bracket. Dr. Taylor noted claimant worked at a “fairly rapid pace,” finishing two or three wardrobes per shift. Claimant reported holding the screw gun with her left or right hand approximately equal amounts of her work shift, at times using her hands together to hold the gun. She explained her duties required placement of her hands and wrists in awkward positions, required quite a bit of overhead work, as wardrobes could reach seven feet tall, necessitated handling weights up to 30 pounds, and involved use of gripping, grasping, or vibratory tools approximately 75 percent of her shift. Additionally, claimant reported working at floor-to-waist level 10 percent of the shift, waist-to-shoulder level 50 percent of the shift, and over shoulder height 40 percent of the shift. (Ex. 2, p. 2)

Claimant informed Dr. Taylor she developed pain and symptoms within approximately two weeks of beginning her placement. Dr. Taylor noted claimant’s symptoms began as a burning sensation, especially noticeable at night and with certain activities. He located the sensation in the ulnar aspect of the bilateral forearms, down



into the fourth and fifth digits, with symptoms greater in the left than right upper extremity. (Ex. 2, p. 3) She disclosed a brief episode of left wrist pain in 2005, which resolved within two weeks with use of anti-inflammatories. (Ex. 2, p. 7)

Claimant reported continued symptoms of a constant aching of the bilateral hands. In addition to the aching sensation, claimant expressed feeling as if she was grasping an “electric fence” with her left hand, resulting in numbness and a burning sensation. Pain in the left upper extremity ranged in severity from a level 4 to a level 8 on a 10-point scale. Right upper extremity symptoms were described as similar but less pronounced than those in the left upper extremity. (Ex. 2, p. 6) Claimant expressed belief her condition persisted at essentially the same level as 6 months’ prior, with some periods of temporary worsening and increased symptoms that return to baseline. (Ex. 2, pp. 6-7)

Following history, records review, and examination, Dr. Taylor issued the following diagnoses: bilateral upper extremity tendinitis with paresthesias consistent with ulnar neuritis, left greater than right; bilateral ulnar neuritis with negative neurodiagnostic studies; and status post left elbow ulnar nerve release and left wrist ulnar nerve release. (Ex. 2, pp. 1, 9) Dr. Taylor indicated he reviewed claimant’s description of her duties as well as a drawing of her work area. On this basis, he opined it appeared claimant’s work presented risk factors for development of upper extremity symptoms. Such factors included the use of brackets and screws, fairly constant use or holding of a screw gun, forceful tool use with some degree of repetition, awkward posture and repetitive pronation of the forearm, and sustained gripping while holding onto the air gun, even when not actively placing a screw. (Ex. 2, pp. 9-10)

On the matter of causation, Dr. Taylor opined claimant “likely” developed soft tissue injuries such as tendinitis/epicondylitis which “more likely than not [were] related to performing unaccustomed and unfamiliar tasks.” In support of this opinion, Dr. Taylor noted claimant developed symptoms within two to four weeks of beginning new job tasks building wardrobes. (Ex. 2, p. 9) He further opined claimant’s condition and symptomatology subsequently stabilized, with claimant continuing to fairly consistently complain of pain, burning, numbness, and tingling in an ulnar nerve distribution. (Ex. 2, pp. 9-10) He opined claimant presently exhibited some element of medial epicondylitis, mainly over the left elbow, as well as findings consistent with, at least, ulnar neuritis. (Ex. 2, p. 10)

Dr. Taylor acknowledged it difficult to establish an ulnar neuropathy with negative neurodiagnostic studies. He noted claimant complained of burning pain with associated paresthesias. Dr. Taylor opined the symptom of burning pain would be consistent with possible nerve-related pain. He elaborated that while cubital tunnel syndrome and carpal tunnel syndrome are more often associated with paresthesias, the perception of pain or paresthesias can vary subjectively amongst individuals. Dr. Taylor further



commented that on occasion, neurodiagnostic studies can yield negative results in individuals who present with clinical findings of a neuropathy-type picture. Additionally, Dr. Taylor commented neurodiagnostic results and the severity of symptoms present do not necessarily correlate. (Ex. 2, p. 10)

In summary of his opinions, Dr. Taylor opined:

[I]t appears that she did have multiple occupational risk factors that could lead to the development of various upper extremity symptoms, including those consistent with tendinitis, epicondylitis and other types of musculoskeletal disorders. [Claimant] had a clinical diagnosis of cubital tunnel syndrome. The neurodiagnostic studies did not confirm this, but it was confirmed clinically by Dr. Rattay and Dr. Rizzo at the Mayo Clinic.

In light of the above discussion, it is my opinion that her work tasks, as described above, represented a substantial, but not necessarily exclusive, contribution to the development of her tendonitis/epicondylitis and ulnar neuritis.

(Ex. 2, p. 10)

Dr. Taylor indicated he did not anticipate significant changes in claimant’s condition. While he expressed uncertainty regarding whether repeat surgery would provide benefit, Dr. Taylor indicated it “might be reasonable” for claimant to return to Dr. Rizzo for repeat evaluation at which time Dr. Rizzo may repeat neurodiagnostic studies and offer potential treatment options. (Ex. 2, pp. 10-11) Dr. Taylor opined claimant achieved MMI six months following surgery, March 9, 2011. He further opined claimant sustained permanent impairment as a result of the alleged work injury. Dr. Taylor rated claimant’s ulnar neuritis on the basis of sensory deficits or pain and determined claimant sustained four percent left upper extremity and two percent right upper extremity impairments. When combined and converted to a “whole person” rating, Dr. Taylor found a total three percent whole person impairment. (Ex. 2, pp. 11-12) Dr. Taylor also recommended the following work restrictions: lift, push, pull or carry of 15 to 20 pounds occasionally; avoidance of forceful push or pull, especially with tasks requiring repetitive flexion, extension, and/or awkward postures with the left upper extremity; avoidance of vibratory or power tools; rare crawling; and avoidance of ladders for safety concerns. (Ex. 2, p. 12)

Claimant testified her examination with Dr. Taylor lasted approximately 1 ½ to 2 hours. During this time, Dr. Taylor interviewed and examined claimant. Claimant described Dr. Taylor as more attentive than Dr. Neff had been, with Dr. Taylor wanting to know more details than Dr. Neff. (Claimant’s testimony)



Dr. Taylor provided deposition testimony on October 8, 2013. (Ex. P) Dr. Taylor restated his opinion of claimant’s diagnosis as tendonitis and ulnar neuritis. He opined the conditions were caused by claimant’s repetitive work activities, including repetitive awkward postures, forceful tool use, vibration, and sustained gripping. (Ex. P, pp. 20-21) Dr. Taylor indicated he used the word repetitive when referring to performing a task every 30 to 60 seconds over the majority of a work shift. (Ex. P, pp. 23-24)

Dr. Taylor described tendinitis as inflammation or irritation where muscle attaches to tendon or bone. He indicated such a condition can be caused by a variety of activities. Treatment is generally conservative in nature, and surgical intervention is rare. Usually, such complaints resolve or improve within weeks or months, and improvement is generally seen with suspension of the offending activity. (Ex. P, pp. 21-22) Dr. Taylor described ulnar neuritis as inflammation of the nerve that results in symptoms such as numbness and tingling. He indicated this condition is sometimes treated surgically, with generally good results following surgery. (Ex. P, pp. 22-23) Dr. Taylor indicated a referral for muscle biopsy is designed primarily to evaluate for conditions like muscular dystrophy. (Ex. P, p. 37)

Dr. Taylor described the difference between diagnoses of ulnar neuritis and ulnar neuropathy as a continuum. Dr. Taylor indicated he diagnoses ulnar neuropathy in the event he lacks neurodiagnostic studies or those studies fail to confirm a neuropathy, but a patient presents with appropriate symptoms. (Ex. P, p. 60) Dr. Taylor restated claimant’s diagnosis as ulnar neuritis. He opined the diagnosis was warranted because of objective examination findings which fit with the diagnosed condition. (Ex. P, p. 61) Dr. Taylor noted claimant’s EMG/NCV showed mild carpal tunnel syndrome, a positive finding, but indicated the finding was present in a different nerve distribution than the location of claimant’s subjective complaints. (Ex. P, p. 62) When questioned if it was atypical for a patient to describe symptoms in a different location than the location of positive objective findings, Dr. Taylor indicated some patients demonstrate referred pain, all patients describe pain or symptoms differently, and individuals vary in their ability to tolerate pain. (Ex. P, pp. 62-63)

He opined it possible for a patient with significant symptoms to have mild nerve test results. (Ex. P, pp. 62-63) Dr. Taylor elaborated to state it was possible for an individual with minimal EMG/NCV findings to demonstrate significant subjective complaints, although such a scenario was not necessarily common. (Ex. P, p. 80) Dr. Taylor also opined carpal tunnel syndrome and cubital tunnel syndrome can be associated with pain complaints. (Ex. P, p. 70)

In review of claimant’s treatment, Dr. Taylor addressed claimant’s EMG/NCV testing. He opined the 2010 EMG/NCV revealed mild carpal tunnel syndrome, but was negative for ulnar nerve issues. He opined claimant’s second EMG/NCV testing was also negative for ulnar nerve issues. Dr. Taylor acknowledged EMG/NCV testing could



provide objective evidence of nerve issues and play an important role in diagnosis and treatment. (Ex. P, pp. 32-33, 79)

He acknowledged claimant had persistent symptoms and received no significant benefit following ulnar nerve release in September 2010. (Ex. P, pp. 35-36) Dr. Taylor opined it possible, however, for an individual to develop permanent nerve damage as a result of prolonged conservative care. (Ex. P, p. 66) On review of claimant’s operative note, Dr. Taylor noted reported mild narrowing of the cubital tunnel and at the Osborne fascia, hyperemia of the nerve at the margins, and compression throughout the midportion of the canal. He opined these findings represented objective evidence of problems with the ulnar nerve and further indicated the findings were consistent with claimant’s prior symptom complaints. (Ex. P, pp. 65-66)

Dr. Taylor testified his examination noted limitation in range of motion at the wrist secondary to subjective reports of pain. (Ex. P, pp. 48-49) He indicated he did not document specific grip strength test results, as he discontinued the grip strength evaluation due to pain complaints. (Ex. P, pp. 49-50) Dr. Taylor opined, however, his objective examination findings supported a diagnosis of tendinitis, left greater than right. (Ex. P, p. 67) He opined grip strength testing of zero raised questions regarding symptom magnification or exaggeration. (Ex. P, p. 50) Yet he indicated he noted no evidence of malingering or symptom magnification during examination. (Ex. P, pp. 67-68)

With regard to a causal relationship between claimant’s work duties and her development of symptoms, Dr. Taylor noted his report indicated claimant worked at a fairly rapid pace. Dr. Taylor indicated his impression was that claimant was meeting Winnebago’s production pace. Claimant reported to Dr. Taylor she completed two or three wardrobes per work shift, for an average of one wardrobe every three to four hours. Dr. Taylor acknowledged that if Winnebago’s policy called for completion of a wardrobe every 90 minutes, claimant was not, in fact, keeping pace with production standards. (Ex. P, pp. 28-29)

Also on the issue of causation, Dr. Taylor indicated repetitive injuries generally lack an acute onset like a fall, and instead, pain generally develops gradually. (Ex. P, pp. 30-31) Dr. Taylor expressed belief claimant reported a history of gradual onset of symptoms. (Ex. P, p. 31) Dr. Taylor was informed of claimant’s testimony regarding a more acute onset, specifically bilateral arm pain which woke her from sleep. Dr. Taylor reviewed his IME report and indicated the only similar reference was a general reference to burning symptoms, especially noticeable at night. Dr. Taylor indicated he saw no reference to an immediate onset of pain in the middle of the night. He testified he was not aware of that form of onset of symptoms when completing his IME report. (Ex. P, pp. 31-32)



Dr. Taylor opined it possible for cumulative work duties to contribute to the development of nerve entrapment or other nerve damage, in the form of contributing, aggravating, or lighting up the condition to result in symptoms. (Ex. P, p. 70)

Dr. Taylor acknowledged an apparent inconsistency in his report with regard to the duration of the work shift claimant spent in particular postures. His report indicated claimant spent 90 percent of her shift working at waist level or higher and also claims claimant spent 50 to 75 percent of her shift stooping and bending. Dr. Taylor indicated those figures reflected claimant’s estimates of her work time, and he did not attempt to reconcile the percentages. (Ex. P, pp. 29-30)

Dr. Taylor testified he possessed greater knowledge of claimant’s work history than simply her work duties at Winnebago. He indicated the lack of inclusion of such information in his report was a result of oversight. (Ex. P, p. 41) Upon further questioning, Dr. Taylor testified he believed claimant’s work at Powerfilm was “light assembly” in nature, but he lacked specific understanding of the elements of claimant’s work. (Ex. P, pp. 43-46) Although claimant reported her work at Powerfilm caused an increase in her symptoms, Dr. Taylor was unaware if the task of applying solar panels or the soldering task caused the increase in symptoms. Dr. Taylor was similarly unaware claimant was capable of performing duties applying solar panels for four months without difficulty and in fact, was willing to continue working in such a position. He explained knowledge of this fact was relevant to his opinions. (Ex. P, p. 46) In respect to claimant’s work history following the alleged work injury, Dr. Taylor testified he would expect an individual with continued reported pain at a level 4 to level 8 on a 10-point scale to avoid production work. He expressed expectation such an individual would seek more sedentary work. (Ex. P, p. 47)

Claimant testified to continued daily bilateral upper extremity symptoms. Symptoms vary in severity from day to day and are lessened if claimant does not perform any activities. Although lessened with rest, claimant testified she is never completely without pain. Claimant believes her condition has plateaued, reaching her current level of symptomatology approximately one year post-surgery. Claimant testified surgery failed to alleviate her hand or forearm complaints. She continues to report symptoms of burning, weakness, numbness and tingling. These symptoms impact claimant’s recreational activities, as she is unable to play pool, bowl, or engage in outdoor activities. Claimant testified she desires to undergo further surgical intervention, but does not wish to do so with Dr. Rattay. After she was seen by Dr. Neff, defendants denied further treatment. Claimant does not currently have health insurance and has not had coverage since the alleged work injury. (Claimant’s testimony)

Ms. Shanae Janes testified she has observed a change in her mother following the alleged work injury. Although she no longer lives at home, and therefore, does not observe claimant’s day to day activities, Ms. Janes testified claimant has asked for her



assistance with cooking. Ms. Janes testified she always drives claimant in the event of windy weather, as claimant has difficulty gripping the steering wheel and develops pain. On occasion, Ms. Janes has observed claimant wear a brace on her left arm, particularly with driving or if her complaints have flared. (Ms. Janes’ testimony)

Claimant expressed concern with regard to her future employability. She indicated she lacks qualification for many jobs and is afraid her upper extremity symptoms will prevent her from engaging in production work. Claimant acknowledges she has received each job she has applied for following the alleged work injury. Claimant expressed willingness to pursue vocational rehabilitation if doing so would help her locate a job. (Claimant’s testimony)

Lauri Henderson, claimant’s former coworker at Powerfilm, testified at evidentiary hearing. Ms. Henderson testified she continues to work at Powerfilm and at one time, performed the same production job as claimant. Ms. Henderson testified she observed claimant perform her duties, and claimant worked at a slower pace than Ms. Henderson. Ms. Henderson indicated claimant always wore an arm brace and elbow pad on her left upper extremity, but still took more frequent breaks, often stretched and rested her hands, and occasionally applied Biofreeze. Ms. Henderson expressed belief claimant worked hard and attempted to keep up with production, but was unable to work as quickly because claimant was unable to hold items as long as Ms. Henderson without the aid of tools.

Ms. Henderson’s testimony was clear and consistent with that of claimant. Her demeanor at evidentiary hearing gave the undersigned no reason to doubt Ms. Henderson’s veracity. Ms. Henderson is found credible.

CONCLUSIONS OF LAW

The first issue for determination is whether claimant sustained an injury on December 30, 2009 which arose out of and in the course of employment.

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

The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it both arose out of and in the course of the employment. Quaker Oats Co. v. Ciha, 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.

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

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

A personal injury contemplated by the workers’ compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something that acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are compensable. Increased disability from a prior injury, even if brought about by further work, does not constitute a new injury, however. St. Luke’s Hosp. v. Gray, 604 N.W.2d 646 (Iowa 2000); Ellingson v. Fleetguard, Inc., 599 N.W.2d 440 (Iowa 1999); Dunlavey v. Economy Fire and Cas. Co., 526 N.W.2d 845 (Iowa 1995); McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). An occupational disease covered by chapter 85A is specifically excluded from the definition of personal injury. Iowa Code section 85.61(4) (b); Iowa Code section 85A.8; Iowa Code section 85A.14.



Claimant argues she sustained a cumulative injury to her bilateral upper extremities related to her work duties for defendant-employer. Claimant testified she received a placement at Winnebago through defendant-employer. Her duties consisted of construction of wardrobes for recreational vehicles, which required the use of vibratory/power tools to place small hardware. Claimant testified she used both hands and was required to use her hands in awkward positions. According to claimant, a few weeks into her placement, she developed a burning sensation in left, then right, arms. She indicated the condition worsened after claimant was awoken from sleep with severe bilateral arm complaints. Claimant subsequently received medical care from Drs. Conroy, Cole, Rattay, and Rizzo. She also underwent independent medical evaluations with Drs. Neff and Taylor. In support of her claim, claimant relies upon the various medical opinions in the records, including that of Dr. Taylor, but excluding the opinion of Dr. Neff.

Defendants argue claimant did not sustain a cumulative work injury, as claimant has a history of similar complaints, she relates her conditions to less than one month’s work for defendant-employer, her symptoms did not abate after ceasing work, there is no objective medical basis for claimant’s continued symptoms, and EMG/NCV testing did not support claimant’s diagnoses. Defendants rely upon the medical opinion of Dr. Neff and urge the undersigned to reject the opinions of Dr. Taylor.

In cases involving alleged cumulative work injuries, medical opinions on causation of the conditions at issue become of paramount importance. Therefore, the opinions of each of the medical providers must be considered, bearing attention to the consistency, accuracy, and breadth of information relied upon, as well as consistency of those opinions with established legal principles. Therefore, each medical opinion will be addressed separately.

Prior to review of the medical opinions in evidence, it must first be noted that claimant received past medical attention for complaints similar to those she now relates to her work duties for defendant-employer. At some time during the period from 1999 to 2001, claimant received treatment for a diagnosis of right arm tendinitis. Treatment was limited to physical therapy and muscle relaxers. Claimant testified the condition resolved within one month; there is no contrary evidence in the record. Claimant also received treatment for left wrist pain in 2005. She received conservative care consisting of anti-inflammatories and bracing. Claimant testified the condition resolved within weeks. Additional, subsequent appointments in 2005 refer to left-sided complaints more generally, not just within the upper extremity. Claimant was referred for neurological consult.

It is determined claimant’s prior bouts of right arm tendinitis and left wrist pain do not represent a preexisting condition. Claimant credibly testified each of these complaints resolved within short periods when given appropriate medical attention.



There is no evidence claimant received more than isolated care for these complaints, with no medical attention at all for similar complaints for a period of approximately four years prior to the alleged work injury. If claimant did in fact have a preexisting condition to her upper extremities, this condition was clearly asymptomatic prior to claimant beginning work for defendant-employer.

Following the alleged work injury, claimant received care from Dr. Conroy. Dr. Conroy noted a history of work injury producing a gradual onset of bilateral upper extremity pain with use of a screw gun. Claimant underwent EMG/NCV testing with Dr. Verma on January 20, 2010, who opined results revealed tendinitis and mild carpal tunnel syndrome bilaterally. Dr. Conroy opined the EMG testing revealed bilateral mild carpal tunnel syndrome with some increased latencies involving the median nerve. He noted claimant’s EMG results were “discordant” with examination. However, he assessed a work injury of bilateral wrist and hand pain, consistent with ulnar neuropathy and carpal tunnel. He subsequently opined the EMG findings were more likely indicative of tendinitis than neuropathy. On evaluation by Dr. Cole, Dr. Cole noted a history of repetitive use injury and assessed bilateral carpal tunnel.

Thereafter, claimant was referred for care with surgeon, Dr. Rattay. Claimant reported she developed symptoms in mid-December 2009, and those symptoms would wake her from sleep. Dr. Rattay opined claimant’s EMG yielded evidence of carpal tunnel syndrome, but denied significant findings. Dr. Rattay opined claimant was significantly symptomatic clinically and assessed bilateral cubital tunnel syndrome and ulnar compressive neuropathy of left wrist. He further opined claimant’s ulnar nerve symptoms were significant and indicated additional conservative measures were likely to result in further permanent nerve damage. Accordingly, he recommended surgical intervention, but noted the goal of surgery was to prevent further worsening and cautioned all or a portion of claimant’s symptoms may remain after surgery.

Prior to undergoing surgery, claimant received a second opinion evaluation from Dr. Rizzo of the Mayo Clinic. Dr. Rizzo opined claimant’s EMG revealed bilateral mild carpal tunnel, but his examination findings were fairly consistent with cubital tunnel syndrome. He assessed bilateral hand numbness and tingling, primarily in the ulnar side of the hand, with ulnar nerve irritation. Despite a negative EMG, Dr. Rizzo opined claimant’s symptoms pointed to difficulties with the ulnar nerve and agreed with Dr. Rattay that claimant may benefit from surgery.

Claimant thereafter underwent surgery performed by Dr. Rattay on September 9, 2010, consisting of ulnar nerve releases at left elbow and left wrist. Dr. Rattay issued a diagnosis of left ulnar nerve compressive neuropathy at the elbow and wrist. A post-surgery EMG on January 25, 2011 with Dr. Hayreh yielded normal results in the left median and ulnar nerves, except for slight comparative slowing across the wrist in the left median nerve. Dr. Hayreh opined this finding was nonspecific, but may be



compatible with very early left carpal tunnel syndrome. Dr. Rattay opined the EMG revealed no evidence of worsening with regard to ulnar nerve function and no evidence of motor denervation. However, due to atypical pain and weakness, Dr. Rattay recommended repeat evaluation at the Mayo Clinic. In the event this was not completed, Dr. Rattay recommended claimant undergo an FCE.

Defendants did not arrange a repeat evaluation at the Mayo Clinic, nor arrange an FCE. Instead, defendants arranged for an IME with Dr. Neff on April 11, 2011. Dr. Neff opined claimant’s EMG of February 2010 showed bilateral mild carpal tunnel syndrome. On examination, Dr. Neff noted claimant demonstrated grip strength testing of zero, which he opined to be an unreliable finding and an attempt on claimant’s part to convince him pathology existed. Dr. Neff also noted what he believed were additional examples of symptom magnification, including high pain levels, pull away response, wincing, jumping, use of inappropriate descriptive terms, and an observation of claimant texting on her phone.

Dr. Neff opined claimant initially presented with tendinitis of the elbow, which began shortly after beginning a new work activity. While the new activities led to muscle soreness and inflammatory changes of the tendons, Dr. Neff opined no injury occurred. He opined claimant’s presentation lacked objective findings and contained only pain behavior with symptom magnification. He explained cubital and carpal tunnel syndromes are generally not associated with a great deal of pain, but rather with numbness and tingling. He opined pain to be a complaint more common with muscle soreness and tendinitis. Dr. Neff diagnosed functional somatic syndrome, chronic pain behavior with symptom magnification, possible post-surgical neuroma, and mild carpal tunnel syndrome. He opined claimant lacked a definitive post-surgical diagnosis, as pain and soreness are not medical diagnoses or injuries, but rather, an expression of symptoms.

Dr. Neff opined claimant’s EMG/NCV findings showed no evidence of ulnar nerve entrapment at the elbow or wrist and claimant’s subjective complaints were the only evidence of ulnar nerve dysfunction. He referenced the AMA Guides to the Evaluation of Disease and Injury Causation and explained electrodiagnostic testing is the gold standard for diagnosis of ulnar entrapment at the elbow. Therefore, Dr. Neff expressed belief positive EMG/NCV findings are a prerequisite to this diagnosis. According to Dr. Neff, the publication also indicates no causal relationship between repetitive elbow motion and ulnar neuropathy at the elbow in industrial workers has been demonstrated in medical literature. He also noted neither the American Society for Surgery of the Hand and American Academy of Orthopedic Surgeons recognize a diagnosis of “cumulative trauma injury.”

Dr. Neff denied the occurrence of a work injury. Dr. Neff stated muscle, ligament, and tendon soreness can occur with repetitive activity, but carpal tunnel syndrome is not



caused, contributed to, or aggravated by the work activities to which claimant was exposed. With regard to claimant’s specific work duties, Dr. Neff opined claimant’s work activities “did not aggravate anything.” He concluded claimant did not suffer a cumulative trauma and opined repetitive strain injuries are legal constructions.

Both claimant and her daughter credibly testified Dr. Neff’s evaluation was short in nature and was not supportive of a physician-patient relationship.

Following examination by Dr. Neff, claimant remained symptomatic. In response to inquiry regarding this continued symptomatology, Dr. Rattay issued a letter on November 16, 2012. Dr. Rattay indicated he typically would expect improvement in claimant’s symptoms once the offending activity was suspended. As claimant’s post-surgical EMG was essentially normal, Dr. Rattay opined he was unable to identify an objective medical basis for her claimant’s continued complaints.

Dr. Neff performed a review of additional medical records and claimant’s deposition. He issued comments in a letter dated June 9, 2013. He indicated he did not believe claimant’s complaints of left upper extremity symptoms made sense, given claimant used the screw gun in her right hand. He further stated because claimant underwent surgery without first proving the existence of cubital tunnel syndrome, it was unsurprising claimant’s symptoms persisted after surgery and cessation of the offending work activity. He noted claimant was able to work with her hands and wrists at Powerfilm and thus opined any progressive symptoms after ceasing work at defendant-employer were not properly attributed to defendants.

Claimant subsequently underwent IME with Dr. Taylor. In her work for defendant-employer, claimant reported utilizing awkward hand and wrist positions, performing gripping and grasping, and using vibratory tools. Claimant reported using her left and right hands equally to hold the screw gun, at times using the hands together. She reported development of pain and symptoms within two weeks of commencing work at Winnebago. Symptoms began as a burning sensation, especially noticeable at night.

During evaluation, Dr. Taylor opined claimant exhibited some element of medial epicondylitis, mainly over the left elbow, as well as findings consistent with, at least, ulnar neuritis. Dr. Taylor diagnosed bilateral upper extremity tendinitis with paresthesias consistent with ulnar neuritis, left greater than right and bilateral ulnar neuritis with negative neurodiagnostic studies. He opined claimant’s work duties presented multiple risk factors for development of upper extremity symptoms, including those consistent with tendinitis, epicondylitis, and other musculoskeletal disorders. Specifically, Dr. Taylor identified use of brackets and screws, fairly constant use or holding of a screw gun, forceful tool use with some degree of repetition, awkward posture and repetitive pronation of the forearm, and sustained gripping while holding the



air gun. Dr. Taylor opined claimant likely developed soft tissue injuries such as tendinitis/epicondylitis as a result of performing unaccustomed and unfamiliar tasks and highlighted the development of symptoms within two to four weeks of beginning her new job. He opined claimant’s work tasks represented a substantial contribution to the development of tendinitis/epicondylitis and ulnar neuritis. Dr. Taylor opined claimant’s condition subsequently stabilized, with claimant continuing to consistently complain of symptoms in an ulnar nerve distribution.

Dr. Taylor acknowledged it difficult to establish an ulnar neuropathy with negative neurodiagnostic studies. He indicated it was possible, however, for neurodiagnostic studies to yield negative results in individuals who present with clinical findings of a neuropathy-type condition. He identified burning pain as a symptom consistent with possible nerve-related pain. While cubital and carpal tunnel syndromes are more often associated with paresthesias, the perception of pain and paresthesias can vary subjectively between patients. Dr. Taylor further opined neurodiagnostic results do not necessarily correlate to the severity of a patient’s symptoms. He ultimately opined claimant presented with a clinical diagnosis of cubital tunnel syndrome. Although the diagnosis was not confirmed by neurodiagnostic studies, it was confirmed clinically by Drs. Rattay and Rizzo. Dr. Taylor reiterated his diagnoses of tendonitis and ulnar neuritis were caused by repetitive work activities at his deposition.

Claimant reported a gradual onset of symptoms punctuated by a worsening of symptoms after a nighttime episode by her testimony at evidentiary hearing and to medical providers at physical therapy and Drs. Conroy, Rattay, or Taylor. Claimant’s reports on this topic have been consistent and credible. Therefore, any argument the medical opinions based on this history should be discounted based on inaccuracy is misplaced.

On the question of causal relationship between claimant’s bilateral upper extremity complaints, each of claimant’s treating physicians noted a reported causal connection between claimant’s work duties and her symptoms. Not one of claimant’s treating physicians, Drs. Conroy, Cole, Rattay, and Rizzo, expressed any doubt or reservation between claimant’s development of symptoms and her attribution of these symptoms to her work duties. On independent medical examination, Dr. Taylor specifically opined claimant’s complaints were work related. Dr. Taylor’s report is thorough, well-reasoned, and supported by the evidentiary record.

The only physician to draw causation into question is Dr. Neff. Upon review of the entirety of the record, specifically including the medical records in evidence, it is determined Dr. Neff’s opinions are entitled to little weight. Dr. Neff repeatedly questions claimant’s underlying diagnosis regarding involvement of the ulnar nerve. However, Drs. Rattay, Rizzo, and Taylor all concur with regard to involvement of the ulnar nerve. Dr. Rattay believed in involvement of the ulnar nerve to a degree which led him to



perform surgery. Dr. Rizzo concurred with the surgical recommendation. The undersigned finds it highly unlikely two surgeons would recommend performance of surgery absent clinical support for the diagnosis.

Dr. Taylor acknowledges Dr. Neff’s concerns with regard to the lack of electrodiagnostic support; however, he succinctly opined the diagnosis was confirmed clinically by Drs. Rattay and Rizzo, as well as by his clinical examination. Dr. Neff questions the validity of these clinical examinations, pointing to examples which he deemed represented symptom magnification. Although Dr. Neff’s examples are considered by the undersigned, no other physician has opined claimant demonstrated symptom magnification. Although some questions were raised regarding the extent of and expression of symptoms by claimant, no other physician expressed belief claimant intentionally magnified or manipulated her symptom reports.

Additionally, while physicians may have expressed belief claimant’s condition should have improved following surgery and cessation of the offending activity, this is not fatal to claimant’s reports of continued complaints. Prior to surgery, Dr. Rattay noted the purpose of surgery was to prevent additional worsening, not to correct existing damage. Furthermore, Drs. Rattay and Taylor each noted the potential for nerve damage to become permanent in such conditions. Given this explanation, claimant’s continued symptoms are well-explained. The most troublesome aspect of claimant’s presentation with regard to potential symptom magnification is her grip strength measurements, or lack thereof. However, Dr. Taylor observed claimant’s inability to perform such testing due to pain and he did not view claimant’s behavior as evidence of symptom magnification.

Dr. Neff was not retained to establish a physician-patient relationship with claimant. The extent and quality of the one-time examination must therefore, be scrutinized to determine if the examination adequately reflected claimant’s condition. Claimant testified the examination with Dr. Neff was short, 10 to 15 minutes, and perfunctory in nature. Additionally, both claimant and her daughter testified Dr. Neff’s behavior did not convey interest in claimant’s complaints and concerns. Dr. Taylor’s examination, on the other hand, lasted 1 ½ to 2 hours. During this period, claimant testified Dr. Taylor appeared more attentive and detailed in his questioning.

Finally, Dr. Neff’s opinion is rejected as running contrary to well-established legal principles. While medical opinions and legal opinions do not necessarily always coincide, it is highly troublesome when a physician seemingly denies the possibility of a cumulative work injury, a longstanding legal principle. For the forgoing reasons, it is determined Dr. Neff’s opinions are entitled to little weight.

It is determined the opinions of Dr. Taylor, who performed a more extensive interview and examination of claimant, are entitled to greater weight than the opinions



expressed by Dr. Neff. Dr. Taylor’s opinions are consistent with claimant’s testimony and the weight of the medical evidence. Defendants set forth argument regarding the accuracy of information relied upon by Dr. Taylor. After consideration, it is determined Dr. Taylor’s opinions are not to be discounted for seemingly small errors in understanding of job duties, when Dr. Neff apparently was able to issue his opinions without knowledge of similar facts. Having found Dr. Taylor’s opinions entitled to greater weight, it is determined claimant established she sustained a cumulative injury to her bilateral upper extremities on December 30, 2009, arising out of and in the course of her employment with defendant-employer.

The next issue for determination is whether the alleged injury is a cause of temporary disability. The next issue for determination is whether claimant is entitled to temporary disability benefits from June 12, 2011 to the present and continuing. These issues will be considered together.

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, 312N.W.2d 60 (Iowa App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).

Healing period compensation describes temporary workers’ compensation weekly benefits that precede an allowance of permanent partial disability benefits. Ellingson v. Fleetguard , Inc. , 599 N.W.2d 440 (Iowa 1999). Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until the first to occur of three events. These are: (1) the worker has returned to work; (2) the worker medically is capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. Maximum medical recovery is achieved when healing is complete and the extent of permanent disability can be determined. Armstrong Tire & Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 60 (Iowa 1981). Neither maintenance medical care nor an employee's continuing to have pain or other symptoms necessarily prolongs the healing period.

Defendants paid temporary disability benefits prior to June 12, 2011. Any benefits owed during the period between the work injury and this date are not at issue. Claimant does claim continued entitlement to temporary disability benefits after such benefits were terminated on June 12, 2011. Specifically, claimant argues she is entitled to a running award of temporary disability benefits retroactive to June 12, 2011 and continuing throughout additional treatment requested by this proceeding until claimant



reaches MMI. Accordingly, claimant seeks additional medical treatment to treat her continued complaints, to be received from a physician other than Dr. Rattay.

Claimant admits such an award of temporary disability benefits, if awarded, should be interrupted by the periods she was employed or was unavailable to work for reasons unrelated to the alleged work injury. By post-hearing brief, claimant outlined 35.8 weeks from June 12, 2011 to date of hearing during which she would not be entitled to temporary disability benefits.

Claimant never returned to work for defendant-employer. It cannot be said that claimant returned to substantially similar work either, as claimant’s post-injury work was sporadic as a result of continued complaints. Additionally, while claimant returned to production work, she did not return to work which required as extensive and continuous use of her hands as her placement at Winnebago. The relevant inquiry on the issue of claimant’s entitlement to additional temporary disability benefits is therefore, whether claimant achieved maximum medical recovery prior to the termination of her benefits on June 12, 2011.

Three physicians have opined as to whether or not claimant achieved maximum medical improvement, and if so, upon what date she achieved such status. Dr. Rattay, claimant’s treating physician, opined claimant achieved MMI on December 14, 2010. Dr. Neff opined claimant had achieved MMI by the time of his evaluation on April 11, 2011. Dr. Taylor opined claimant achieved MMI six months postoperatively, March 9, 2011.

Claimant disagrees with opinions stating she has achieved MMI given her continued symptomatology and what she believes is an interruption in the care offered by Dr. Rattay, specifically a return to the Mayo Clinic. However, claimant testified she believes her symptoms have plateaued.

No physician has opined claimant remains in a period of healing with anticipated improvement. Although Dr. Rattay initially recommended repeat evaluation at the Mayo Clinic, he subsequently stated claimant’s treatment options had been exhausted. Therefore, claimant’s argument regarding interruption of care as grounds for an award of additional temporary benefits must fail. Dr. Neff did not recommend additional treatment. Dr. Taylor indicated a repeat evaluation by Dr. Rizzo might be reasonable, yet indicated he did not anticipate significant changes in claimant’s condition. Given no physician has opined claimant requires additional medical treatment, none has indicated further improvement is anticipated, and none has opined claimant as yet failed to achieve MMI, it is determined claimant’s period of healing has terminated.

Having so determined, it must then be determined the proper date for termination of this period of healing. Claimant argues for adoption of Dr. Taylor’s date, March 9,



2011. Defendants argue for adoption of Dr. Rattay’s date, December 14, 2010. Dr. Rattay acted as claimant’s surgeon, with the best opportunity to examine claimant on multiple occasions and evaluate her progress. Given this status, Dr. Rattay is in the best position to opine as to the date claimant achieved MMI. In order to assign a contrary date, there must be a compelling reason. Here, Dr. Taylor assigned a date six-months postoperative. Although this date is reasonable and in line with an anticipated healing process, such is not sufficient to warrant imposition over Dr. Rattay’s position based upon claimant-specific findings. It is therefore determined Dr. Rattay’s MMI date of December 14, 2010 is adopted.

The undersigned found claimant achieved MMI on December 14, 2010. This finding does not terminate claimant’s right to future medical treatment, however. Defendants remain responsible for medical treatment causally related to the work injury of December 30, 2009 and shall designate an authorized provider if requested by claimant. This designation, if requested, shall be with a physician other than Dr. Rattay, due to a breakdown of the physician-patient relationship.

The next issue for determination is whether the alleged injury is a cause of permanent disability. The next issue for determination is the extent of permanent disability to the scheduled member bilateral arms. The next issue for determination is the commencement date for permanent partial disability benefits. These issues will be considered together.

Under the Iowa Workers' Compensation Act, permanent partial disability is compensated either for a loss or loss of use of a scheduled member under Iowa Code section 85.34(2)(a)-(t) or for loss of earning capacity under section 85.34(2)(u). The extent of scheduled member disability benefits to which an injured worker is entitled is determined by using the functional method. Functional disability is "limited to the loss of the physiological capacity of the body or body part.” Mortimer v. Fruehauf Corp., 502 N.W.2d 12, 15 (Iowa 1993); Sherman v. Pella Corp., 576 N.W.2d 312 (Iowa 1998). The fact finder must consider both medical and lay evidence relating to the extent of the functional loss in determining permanent disability resulting from an injury to a scheduled member. Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 272-273 (Iowa 1995); Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417, 420 (Iowa 1994).

Benefits for permanent partial disability of two members caused by a single accident is a scheduled benefit under section 85.34(2)(s); the degree of disability must be computed on a functional basis with a maximum benefit entitlement of 500 weeks. Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983).

As an alternative to a running award of temporary disability benefits, claimant argues she sustained permanent disability as a result of the work injury of December 30, 2009. Claimant argues the opinion of Dr. Taylor should trump that of



Dr. Neff on this topic. Defendants argue the contrary, stating Dr. Taylor’s opinion is based upon inaccurate information.

Dr. Taylor opined claimant sustained a functional impairment for ulnar neuritis based on sensory deficits or pain. Specifically, he opined impairments of four percent left upper extremity and two percent right upper extremity, for a combined three percent whole person impairment. He also recommended work restrictions of: lift, pull, push, or carry of 15 to 20 pounds occasionally; avoidance of forceful push or pull, especially when repetition is involved; avoidance of vibratory or power tools; rare crawling; and avoidance of ladders for safety reasons. Dr. Neff opined claimant did not sustain permanent impairment nor required permanent work restrictions as a result of the work injury because he believed no injury occurred.

Claimant testified to continued daily bilateral upper extremity symptoms. She credibly complained of symptoms of burning, weakness, numbness and tingling. These symptoms impact claimant’s ability to engage in personal and professional activities. Claimant’s daughter, Ms. Shanae Janes, testified to observing claimant’s symptoms impacting her activities.

Dr. Taylor’s opinion on the existence and extent of claimant’s permanent impairment is consistent with the credible testimony of claimant and Ms. Shanae Janes. Furthermore, Dr. Taylor’s opinion is the only opinion in evidence regarding the existence and extent of claimant’s functional loss. Dr. Neff’s opinion states claimant did not sustain permanent impairment or require permanent restrictions because no work injury occurred. The undersigned found to the contrary; therefore, Dr. Neff’s opinion is entitled to no weight. Even had Dr. Neff opined as to the extent of claimant’s permanent impairment and need for work restrictions, the undersigned would provide greater weight to the opinions of Dr. Taylor for the reasons set forth supra in discussion of the issue of whether claimant sustained a work-related injury.

It is therefore found claimant established the work injury of December 30, 2009 is a cause of permanent disability. The opinions of Dr. Taylor on the extent of claimant’s permanent disability and need for work restrictions are adopted by the undersigned.

Accordingly, it is determined claimant sustained a three percent combined whole person impairment as a result of the work-related injury of December 30, 2009. Such an award entitles claimant to 15 weeks of permanent partial disability benefits (3 percent x 500 weeks = 15 weeks), commencing on the date claimant achieved MMI, December 14, 2010.

The next issue for determination is rate of compensation.

Claimant testified at the time of the work injury she was married with two minor, dependent children. She therefore seeks to claim three exemptions in determining her



rate of compensation. Defendants argue claimant is entitled to claim only two exemptions, as indicated on her 2009 tax records. Claimant’s 2009 W-4 states claimant is married and entitled to claim two exemptions.

The number of exemptions used to determine rate is the number of exemptions an employee could claim on a tax return. Iowa Code section 85.61(6)(a)(b). Although not always determinative, tax records are good evidence of marital status and entitlement to exemptions. DeRaad v. Fred’s Plumbing and Heating, File No. 1134532 (App. January 16, 2002).

In the instant matter, claimant’s testimony that her two children were minors dependent on her and her husband for support is undisputed. Although claimant only claimed two exemptions on her W-4, she reasonably could have taken this step to ensure sufficient tax was withheld from her pay during the course of the year. There is no evidence either minor child was independent or dependent on a person other than claimant and her husband. It is therefore found claimant is entitled to claim three exemptions in determination of her rate.

The parties stipulated at the time of the work injury, claimant’s gross weekly earnings were $463.10 and claimant was married. By this decision, the undersigned determined claimant was entitled to claim three exemptions. The proper rate of compensation is therefore, $330.37.

The next issue for determination is whether claimant is entitled to reimbursement for an independent medical evaluation pursuant to Iowa Code section 85.39.

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 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). Claimant need not ultimately prove the injury arose out of and in the course of employment to qualify for reimbursement under section 85.39. See Dodd v. Fleetguard, Inc., 759 N.W.2d 133, 140 (Iowa App. 2008).

Defendants retained Dr. Neff, who opined claimant sustained no permanent impairment and required no work restrictions as a result of the work injury of December 30, 2009. He did so by a report dated April 11, 2011. This evaluation and



report triggered claimant’s right to a section 85.39 independent medical examination. Claimant procured such an examination with Dr. Taylor on July 11, 2013. Dr. Taylor charged $2,265.00 for this examination, a figure which is not unreasonable given the breadth of Dr. Taylor’s examination and report. Defendants are therefore ordered to reimburse claimant for Dr. Taylor’s IME fee of $2,265.00 as set forth in Exhibit 12.

The next issue for determination is whether defendants are entitled to a credit for overpayment of indemnity benefits.

Defendants seek a credit in the amount of any previous overpayment of temporary benefits against an award of any additional indemnity benefits issued by this decision; on the facts of this matter, against the permanent disability benefits awarded. Defendants are not entitled to such an award. Precedent on this issue is clear: any credit for overpayment of temporary benefits is to be applied only against a future claim for benefits. (Swiss Colony, Inc. v. Deutmeyer, 789 N.W.2d 129 (Iowa 2010); See e.g., Harmer Gaffney v. Nordstrom, File No. 5026533 (App. September 9, 2011); Elmer v. Clayton County Recycling, File No. 5030948 (Arb. July 15, 2011); Albers v. Venerts Hotel Management, Inc., File No. 5034889 (Arb. January 23, 2012); Clark v. Blood Center of Iowa, File No. 5036418 (Arb. September 10, 2012); McBride v. Casey’s General Store, File No. 5037617 (Arb. January 2, 2013)). Given this precedent, defendants claim for a credit for overpayment of temporary disability benefits against the award of permanent disability benefits in this file must fail.

The final issue for determination is a specific taxation of costs pursuant to Iowa Code section 86.40 and rule 876 IAC 4.33. Claimant requests taxation of the costs of: $100.00 filing fee, $16.77 service fee, and $120.00 deposition cost. Defendants do not dispute taxation of these costs. These are allowable costs and are taxed to defendants.

ORDER

THEREFORE, IT IS ORDERED:

Defendants shall pay unto claimant fifteen (15) weeks of permanent partial disability benefits commencing December 14, 2010 at the weekly rate of three-hundred thirty and 37/100 dollars ($330.37).

Defendants shall pay accrued weekly benefits in a lump sum.

Defendants shall pay interest on unpaid weekly benefits awarded herein as set forth in Iowa Code section 85.30.

Defendants shall reimburse claimant for Dr. Taylor’s independent medical evaluation in the amount of two-thousand two-hundred sixty-five and 00/100 dollars ($2,265.00).



Defendants shall file subsequent reports of injury as required by this agency pursuant to rule 876 IAC 3.1(2).

Costs are taxed to defendants pursuant to 876 IAC 4.33.

Signed and filed this _____18 th ________ day of December, 2014.

ERICA J. FITCH (ELLIOTT) DEPUTY WORKERS’

COMPENSATION COMMISSIONERCopies to:

Angelina M. ThomasAttorney at LawPO Box 847Ames, IA [email protected]

Caroline M. WesterholdAttorney at Law1248 “O” St., Ste. 600Lincoln, NE [email protected]

EJF/sam


mailto:[email protected]

mailto:[email protected]

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