Cameron v. Pacifica Health Services, 012121 IAWC, 5063931

Docket Nº5063931
Case DateJanuary 21, 2021
SFM MUTUAL INSURANCE,, Insurance Carrier, Defendants.
No. 5063931
Iowa Workers Compensation
Before the Iowa Workers’ Compensation Commissioner
January 21, 2021
         Head Note Nos.: 1402.40, 1801, 1802, 2500, 2700, 2907          APPEAL DECISION           STEPHANIE J. COPLEY DEPUTY WORKERS' COMPENSATION COMMISSIONER          Claimant Nateiga Cameron appeals from an arbitration decision filed on May 5, 2020. Defendants Pacifica Health Services, employer, and SFM Mutual insurance, insurer, respond to the appeal. The hearing was held on July 9, 2019 and reconvened on October 9, 2019 before Deputy Workers' Compensation Commissioner Michelle A. McGovem. The case was considered fully submitted in front of Deputy Commissioner McGovern on November 6, 2019. Due to Deputy Commissioner McGovern's retirement, however, the case was delegated to Deputy Commissioner Jennifer S. Gerrish-Lampe, who issued the arbitration decision, along with a ruling on motion for rehearing on June 10,2020.          On December 30, 2020, the Iowa Workers' Compensation Commissioner delegated authority to the undersigned to enter a final agency decision in this matter. Therefore, this appeal decision is entered as final agency action pursuant to Iowa Code section 17A.15(3) and Iowa Code section 86.24.          In the arbitration decision, the deputy commissioner found claimant's October 22, 2017 injury was not the cause of her symptoms that led to her surgery in October of 2018. Instead, the deputy commissioner found claimant sustained a new aggravation in September of 2018 that "may or may not be caused by work" but was "not the subject matter of [the arbitration] hearing." Thus, for the October 22, 2017 date of injury, the deputy commissioner found claimant should take nothing.          On June 10, 2020, the deputy commissioner issued a ruling on motion for rehearing that ordered defendants to pay for the entirety of claimant's IME with John Kuhnlein, M.D.          On appeal, claimant asserts the deputy commissioner erred in finding claimant's ongoing symptoms are not causally related to her October 22, 2017 work injury. Claimant argues she is not at maximum medical improvement (MMI) for her work injury and is entitled to a running award of temporary benefits. Claimant also seeks reimbursement for medical expenses and mileage. In the alternative, should it be found on appeal that claimant has reached MMI, claimant asserts she is entitled to permanent partial disability (PPD) benefits for her industrial disability. Claimant asserts her correct rate is $378.31. Claimant also seeks an order forcing defendants to authorize care with Nicholas Wetjen, M.D. Lastly, claimant seeks a reimbursement for her costs.          Those portions of the proposed agency decisions pertaining to issues not raised on appeal are adopted as a part of this appeal decision.          I performed a de novo review of the evidentiary record and the detailed arguments of the parties. Pursuant to Iowa Code sections 86.24 and 17A.15, the arbitration decision filed on May 5, 2020 is respectfully reversed.          The deputy commissioner found claimant's October 22, 2017 work injury was not the cause of her October 2018 surgery or her ongoing symptoms; instead, the deputy commissioner found claimant experienced a new aggravation in September of 2018. However, none of the experts in this case opined that claimant sustained a new aggravation of her symptoms in September of 2018. While it is true that Dr. Kuhnlein indicated claimant began experiencing "true radiculopathy" in September of 2018, he did not go so far as to say this was due to a new incident or new aggravation; in fact, he indicated she had "equivocal radicular features" leading up to this point. (Claimant's Exhibit 1, p. 10)          Furthermore, though the notes from claimant's emergency room (ER) visit in September of 2018 indicate back pain from the last week to 10 days, her complaints were very much a continuation of the complaints she had been experiencing since October of 2017. The loss of bowel control was a new symptom, but the remainder of her complaints, including numbness and tingling down her right leg, were noted in numerous medical records prior to the ER visit. (See Joint Ex. 1, pp. 13, 15, 17, 20, 22; JE 3, pp. 16, 25; JE 6, pp. 6, 15; JE 7, p. 3) Her imaging had likewise not drastically changed. (See JE 3, p. 32) As claimant explained at hearing, there was no "new incident'" that preceded her ER visit; it was a worsening after an increased workload at her job. (Hearing Transcript, p. 35)          The greater weight of the evidence supports a finding not that claimant sustained a new aggravation or injury in September of 2018 but instead that her work-related symptoms continued after she was placed at MMI by Kurt Smith, D.O., in June of 2017.          The only physician in the record to opine against causation in this case is Trevor Schmitz, M.D., but his opinion is problematic for several reasons. First, Dr. Schmitz initially opined in December of 2017 that claimant had a work injury on October 22, 2017 and that this work injury was causing her symptoms. (CI. Ex. 3, p. 1) Roughly a year later, in October of 2018, he indicated that surgery was "warranted" for claimant, though he did not believe it was likely to "drastically improve her symptoms." (JE 3, p. 32) It was not until June of 2019, in response to a letter from defense counsel, that Dr. Schmitz offered a different opinion regarding the source of claimant's symptoms. (JE 3, p. 33-38)          While it is not unheard of for a physician to change his or her mind regarding causation, Dr. Schmitz went a step beyond opining against causation; Dr. Schmitz indicated he did "not feel as though [claimant] sustained any injury to her back as a result of her October 22, 2017 incident." (JE 3, p. 35 (emphasis added)) Later in the letter Dr. Schmitz again stated he did not believe claimant "sustained an injury as a result of her October 22, 2017 incident." (JE 3, p. 35)          Importantly, this is contrary to defendants' stipulation in this case that claimant sustained a work-related injury on October 22, 2017. It is also contrary to the opinions of Dr. Kuhnlein, Dr. Wetjen, and William Boulden, M.D.          Dr. Kuhnlein, claimant's IME physician, opined that claimant sustained a work-related low back injury with radiating low back pain on October 22, 2017, for which surgery was eventually required. (CI. Ex. 1, p. 10) This is consistent with the opinions of Dr. Boulden, who offered a second opinion at defendants' request in April of 2018. Dr. Boulden opined that claimant's October 22, 2017 work injury "caused her problem or aggravated it to a point where she is quite symptomatic from the herniated disc" and that "most likely she is going to need surgical intervention." (CI. Ex. 4, p. 4) Dr. Wetjen, who performed claimant's surgeries, indicated claimant would require surgery for her back pain that radiated into her right leg. (JE 8, p. 2) Prior to hearing Dr. Wetjen also stated he believed claimant has what appears to be permanent nerve damage from her work injury. (CI. Ex. 5, p. 4)          Given defendants' stipulation in this case that claimant sustained an injury on October 22, 2017, the opinions of Drs. Kuhnlein, Boulden and Wetjen, and the original opinions of Dr. Schmitz, I simply do not find Dr. Schmitz's opinions from June of 2019 to be credible. Instead, the greater weight of the evidence supports a finding that claimant's ongoing symptoms, including her need for surgery, are related to the stipulated October 2, 2017 work injury. The deputy commissioner's finding is therefore reversed. ...

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