Survey of Recent Work Comp Decisisons – Back Injuries, No Surgery, but Loss of Job

Nelson v. Fitzpatrick Auto Center, Inc.; File Number 5039313 (3/20/2013): 50 yr. old with GED and post-secondary training at the Job Corps in Nebraska; prior work experience includes farm work, Army (infantry) experience with an honorable discharge, as well as work at a seed company, feed lot, night auditor at a hotel, retail store(s), landscaping, meat processing plant/packing plant, and agricultural processing; Claimant has been treated for substance abuse and also been incarcerated; Claimant originally injured himself on June 23, 2010, in which he was yanking something off a vehicle and felt a sharp pain in his back; initial medical treatment was provided by Dr. Kueny who noted there was ‘no permanent impairment’, and provided Claimant with recommendations to avoid repetitive bending/twisting, no lifting over 25 pounds and no overhead work; MRI results ordered by Dr. Shaffer showed a small disc herniation; Dr. Shaffer provided medication(s) and Epidural steroid injections before ordering a second MRI that showed mild stenosis; Dr. Shaffer further ordered an EMG which showed mild chronic S1 radiculopathy and provided Claimant with a nerve block; Dr. Shaffer also took Claimant off of work in early October 2010; on referral to CNOS, Claimant was seen by Dr. McHenry who diagnosed Claimant with Limbaugh and recommended FCE; FCE in late-February 2011 by Mr. John Kruzich; FCE was adopted by Dr. McHenry as valid and provided Claimant with a 5% impairment; Dr. Shaffer placed Claimant at MMI around mid-May 2011; underwent IME with Dr. Kuhnlein in early-May 2012, in which he placed Claimant at MMI towards the end of February 2011 and assigned a 7% impairment rating to the body as a whole; Mr. Rick Ostrander (vocational evaluator) opined a 40% loss of access to the labor market; since the FCE, Claimant has not returned to work and done nothing to look for new jobs, besides helping his relatives with farming; Deputy Gerrish-Lampe found Claimant had sustained a 25% industrial loss and awarded him an ‘auxier payment’ (additional 30 days of benefits) due to the failure of Defendants in providing appropriate notice as to why benefits were terminated.

Nemer v. United Parcel Services, Inc.; File Number 5037888 (3/15/2013): 50 yr. old high school graduate with some college education; prior work experience includes working for Defendant from 1993 until injury in 2010; Claimant was involved in a motor vehicle accident in early 2010 in which she reported pain to her upper back, neck and left ankle; Claimant’s original injury is dated June 11, 2010, in which she had complaints of severe thoracic back pain; subsequent MRI results showed degenerative disk disease and suggested a small herniation; by early January 2011, Dr. Westpheling found Claimant had reached MMI for her back injury; underwent FCE in late-January 2011, performed by Mr. Mark Blankespoor, in which results showed range of motion and strength to be within normal limits; as a result of the FCE, Dr. Westpheling imposed work restrictions and provided an impairment rating of 5% of the whole body; underwent IME by Dr. Miller, in which he opined the physical injury was work-related and rated Claimant with an 8% impairment to the whole body;  in mid-April 2011, Claimant was seen by Dr. Netolicky for depressive issues arising out of the loss of her job; in early-December 2011, Claimant was evaluated by psychologist, Dr. Mittauer; Dr. Mittauer diagnosed Claimant as suffering from major depressive disorder and anxiety disorder, and further opined the depressive disorder was caused by the work injury but the anxiety disorder was not; Dr. Mittauer further believed Claimant was not at MMI for her mental injury; in October 2012, Dr. Swaim opined Claimant’s work injury was a substantial contributing factor in the major depressive disorder and further believed Claimant had not reached MMI for her mental injury; although Deputy Gerrish-Lampe questioned the credibility of Claimant at hearing, she found Claimant had met her burden of proving a mental injury occurred as a result of initial back injury that occurred as a result of work; the Deputy further reviewed the earlier benefit payments in which Claimant had reached MMI for her physical condition and been given a functional rating of 5%, the equivalent of 25 weeks of benefits; Claimant argued the 25 weeks of benefits was unreasonable and asserted she was entitled to a 10% royalty on the entirety of benefits; however Deputy Gerrish-Lampe found the 5% industrial disability rating with regards to her physical injury reasonable, based upon the FCE; regarding Claimant’s mental injury, the Deputy awarded Claimant a running award continuing until Claimant meets the criteria of Iowa Code section 85.34(1) and further noted all previous payments for her physical injury would be characterized as temporary total benefits.

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