Jensen v. R’S Recycling, LLC, 031920 IAWC, 5064667

• Case Date: March 19, 2020
• Court: Iowa

LESLIE JENSEN, Claimant v. R’S RECYCLING, LLC, Employer, Defendant. No. 5064667 Iowa Workers Compensation Before the Iowa Workers' Compensation Commissioner March 19, 2020          Head Notes: 1102.30, 1802, 1803, 2501, 2502, 2701, 2907, 3002, 4000.2           ARBITRATION DECISION           MICHAE J. LUNN DEPUTY WORKERS’ COMPENSATION COMMISSIONER          STATEMENT OF THE CASE          Leslie Jensen, claimant, filed a petition in arbitration against R’s Recycling, LLC, as the employer, on August 6, 2018. Claimant served his Petition on defendant via certified mail on August 6, 2018.          To date, the employer has not filed an appearance or an answer in these proceedings. On September 20, 2018, claimant mailed a Notice of Intent to File Written Application for Default to defendant. On October 4, 2018, claimant filed a motion for default against the employer. On October 23, 2018, Deputy Commissioner William Grell entered a ruling on the motion for default. Default was entered against the employer and the evidentiary record was closed to further activity by the employer.          A default hearing was scheduled for January 22, 2020, in Waterloo, Iowa. Claimant appeared personally and through his counsel of record at the default hearing.          Pursuant to the October 23, 2018 ruling, claimant submitted medical records as written evidentiary evidence in advance of the default hearing. Those medical records were submitted via WCES and are accepted into the evidentiary record of this default proceeding. Claimant submitted 31 pages of medical records. Claimant also testified on his own behalf. No. other evidence was received on the date of hearing. The evidentiary record was left open until approximately February 7, 2020, to allow claimant to submit an amended cost itemization sheet and the report of Stanley Mathew, M.D. The evidentiary record closed subsequent to claimant filing the aforementioned additional exhibits on February 5, 2020.          ISSUES          1. The extent of claimant’s entitlement to temporary disability, or healing period, benefits.          2. The extent of claimant’s entitlement to permanent disability benefits.          3. Claimant’s rate of compensation.          4. Claimant’s entitlement to past medical expenses contained in Exhibit 4 and Exhibit 5.          5. Whether claimant is entitled to reimbursement for his independent medical evaluation pursuant to Iowa Code section 85.39.          6. Whether claimant is entitled to an order for alternate medical care.          7. Whether penalty benefits should be imposed against defendant for unreasonable delay or denial of weekly benefits through the date of hearing.          8. Whether claimant’s costs should be assessed against defendant.          FINDINGS OF FACT          The undersigned, having considered all of the evidence and testimony in the record, finds:

Leslie Jensen, claimant, is a 62-year-old gentleman. (Claimant’s Testimony) On May 31, 2018, he worked as a laborer for R’s Recycling. In this role, claimant disassembled discarded appliances to retrieve valuable scrap metal, such as copper. (Id.) Claimant believed he was an employee based on representations made by defendant. Claimant testified he worked three days each week, from 8:00 a.m. to 4:30 p.m. Claimant testified he earned $60.00 for working an eight-hour shift. He was paid in cash on a weekly basis. Claimant testified defendant supplied all tools necessary to complete the job; however, claimant often chose to use his own. I accept claimant’s testimony and find he was an employee of defendant on the date of injury.

         On the date of injury, claimant was assisting a co-worker in disassembling an appliance. While in the process of disassembling the appliance, claimant’s co-worker accidentally hit claimant’s left hand with a sledgehammer. (Claimant’s Testimony)          Claimant testified he subsequently reported the injury to the owner of R’s Recycling. According to claimant, defendant did not offer him medical care. (Claimant’s Testimony)          After reporting the injury to the defendant employer, Mr. Jensen drove to the emergency room. He was evaluated at Covenant Medical Center in Waterloo, Iowa. (Joint Exhibit 1, page 1) The emergency room provider diagnosed claimant with a left hand fracture of the first metacarpal. (Id.) Mr. Jensen’s left hand was placed in a splint and he was released from the emergency room on the same date. (JE1, p. 2)          Medical records demonstrate claimant was evaluated by Richard Naylor, D.O., on June 4, 2018. (JE2, p. 3) Dr. Naylor placed claimant’s left hand in a fiberglass cast. (JE2, p. 4) Six weeks later, Dr. Naylor collected repeat x-rays of claimant’s left hand. (JE2, p. 6) The x-rays revealed a slightly displaced, slightly angled base of the thumb metacarpal fracture extra-articular. (Id.) Following the x-rays, Dr. Naylor placed claimant’s left hand back into a fiberglass cast. (Id.) Claimant testified he was in a cast for approximately six months. (Claimant’s Testimony) Claimant returned to Dr. Naylor’s office for a six-week follow-up appointment on October 23, 2018. (JE2, p. 7) Medical records from that visit reflect nailbed changes and decreased sensation in all of claimant’s fingers on the left hand. (JE2, p. 8) Dr. Naylor scheduled claimant for a consultation with neurology and ordered an EMG. (Id.)          The requested EMG revealed severe carpal tunnel syndrome on the left, and moderate carpal tunnel syndrome on the right. (See JE2, p. 10) Dr. Naylor scheduled claimant for a carpal tunnel release of the left wrist, and a carpal tunnel injection on the right. (Id.)          Aside from treatment for the left carpal tunnel diagnosis, claimant received no further medical treatment related to the work injury after his October 23, 2018, appointment. I find Mr. Jensen obtained maximum medical improvement on October 23, 2018.          At hearing, Mr. Jensen testified that he has been off work since May 31, 2018. (Claimant’s Testimony) He testified defendant did not offer him any light duty work. He asserts he was in a healing period from May 31, 2018 through October 23, 2018. I find...