Gelles v. Biosolids Management Group, 012821 IAWC, 5056091

Docket Nº5056091, 5056194, 5056195
Case DateJanuary 28, 2021
CourtIowa
TIMOTHY GELLES, Claimant,
v.
BIOSOLIDS MANAGEMENT GROUP, Employer,
and
AUTO-OWNERS INSURANCE COMPANY, Insurance Carrier, Defendants.
Nos. 5056091, 5056194, 5056195
Iowa Workers Compensation
Before the Iowa Workers’ Compensation Commissioner
January 28, 2021
         Head Note Nos.: 1804, 2905, 4100          REVIEW-REOPENING DECISION           JENNIFER S. GERRISH-LAMPE DEPUTY WORKERS’ COMPENSATION COMMISSIONER.          STATEMENT OF THE CASE          Claimant, Timothy Gelles, has filed a review-reopening petition for arbitration seeking workers’ compensation benefits against Biosolids Management Group, employer, and Auto-Owners Insurance, insurer, both as defendants, for a work injury to claimant’s right lower extremity.          In accordance with agency scheduling procedures and pursuant to the Order of the Commissioner in the matter of the Coronavirus/COVID-19 Impact on Hearings, the hearing was held on September 28, 2020, via CourtCall. The case was considered fully submitted on October 19, 2020, upon the simultaneous filing of briefs.          The record consists of Joint Exhibits 1-3; Claimant’s Exhibits 1-4; Defendants’ Exhibits A-D and the testimony of the claimant and Ken Williams.          There were three claims filed by the claimant: File Nos 5056091, 5056194, and 5056195. At the start of the hearing, claimant moved to dismiss File Nos. 5056194 and 5056195 without prejudice. There was no objection and thus the motion to dismiss without prejudice was granted. The following decision pertains to only the issues raised for File No. 5056091.          ISSUES          Whether there has been a change of condition since the agreement for the original arbitration hearing on January 18, 2017, and subsequent arbitration decision issued March 15, 2017, that might entitle claimant to additional permanent partial disability under a review-reopening and, if so,          The extent of claimant’s industrial disability;          Whether claimant is considered permanently disabled under the odd lot doctrine;          Whether claimant is entitled to a second independent medical evaluation (IME).          STIPULATIONS          The parties agree claimant sustained an injury arising out of and in the course employment on or about July 28, 2015. The injury resulted in temporary disability and permanent disability although the parties disagree as to the extent.          The commencement date for permanent partial disability benefits is September 16, 2020.          At the time of the injury, claimant’s gross earnings were $1,012.50 per week. The claimant was married and entitled to six exemptions. Based on the foregoing, the weekly benefit rate is $677.63.          Prior to the hearing, the claimant was paid 200 weeks of compensation at the rate of $677.63 per week.          FINDINGS OF FACT          Claimant was a 53-year-old person at the time of the hearing. The injury occurred on July 28, 2015, when he was overcome by ammonia fumes and passed out, falling from the top of a semi-tractor trailer. He sustained injuries to his back, pelvis, hip, ribs, lungs, and right ankle. A workers’ compensation claim was brought and resolved by way of an arbitration hearing held on January 18, 2017,[1] and subsequent decision rendered on March 15, 2017.          The present claim is whether claimant’s circumstances have changed since the original hearing such that claimant is entitled to a review of his previous award of benefits. For that reason, the factual summary is focused on those facts. The underlying injury and treatment and past factual findings contained in the March 15, 2017 decision are incorporated herein.          Claimant was released to return to work on November 1, 2016 with restrictions of no lifting more than 10 pounds, no prolonged sitting or standing activities, no pushing greater than 20 pounds and no driving of commercial vehicles. (CE 1:19)          Claimant has not worked since February 2016 and is not currently working.          Ken Williams testified on behalf of the claimant. He has known the claimant for 20 years. Claimant began to work for Mr. Williams in 1996 or 1997 as an over-the-road truck driver hauling meat to the West Coast and product on the return trip. Claimant’s physical labor varied in this position. At times he was called upon to unload and load the truck and other times hired labor would perform that task for him. Prior to the 2015 hearing, claimant was active and his Parkinson’s disease affected primarily his right arm. Currently, Mr. Williams would not hire the claimant to work for him as he believes that claimant cannot do the work. There was no persuasive testimony from Mr. Williams regarding the post-2016 condition of the claimant as opposed to the pre-2017 condition. Mr. Williams’ testimony was primarily focused on the pre-injury condition of claimant and the current condition of the claimant as opposed to a specific comparison of what claimant could do between the previous hearing and the current one.          On February 22, 2017, claimant saw Daniel C. Miller, D.O., with complaints of painful ribs, pain in the right low back radiating down into the right thigh and knee along with occasional numbness in the right thigh. (JE 1:1) His gait was minimally antalgic. (JE 1:1) Dr. Miller prescribed Norco 5/325 one twice per day as needed. On March 23, 2017, claimant returned to Dr. Miller with complaints of the same. The prescription for Norco was the same as well. (JE 1:7) During the September 9, 2017, visit, claimant maintained he was having a good day but that many symptoms remained the same as they were in February. (JE 1:11) He was taking 1.5 to 3 Norco tablets a day. (JE 1:11) Dr. Miller increased claimant’s Norco prescription to 7.5/325 one every six hours. (JE 1:12) This represented an increase in dosage and well as frequency of the Norco. Dr. Miller increased claimant’s prescription again on December 14, 2017, to 10/325 one pill twice per day. (JE 1:18) Claimant’s symptoms were not markedly changed only that the claimant felt that the Norco was not effective anymore.          Because of the increase in chest pain where the claimant had a non-union of the ribs, Dr. Miller referred claimant to a surgical evaluation on May 22, 2017. (JE 1:47) Claimant received injections and a recommendation for ablation which he later underwent without much success. These treatments were administered by John W. Rayburn, M.D. (JE 2)          In the beginning of 2018, claimant returned to Dr. Miller with complaints that were “pretty much the same.” (JE 1:21) His hydrocodone intake had decreased from 30-40 mg daily to 15-30 mg. (JE 1:22) Dr. Miller felt that claimant’s pain was better controlled with Norco. (JE 1:22) On April 9, 2018, claimant returned with an increase of pain due to lack of Norco. (JE 1:25) The narcotic prescription was refilled. (JE 1:26) Claimant’s overall symptoms remained the same. (JE 1:25) On July 2, 2018, claimant reported that his left rib pain was “pretty much the same” and that he “still” suffered pain in the low back, toes, and groin. (JE 1:29) On September 26, 2018, claimant was “pretty much the same” again. (JE 1:33) During the rest of 2018 and into 2019, Dr. Miller’s notes continue to be a recitation of the same symptoms and regions of concern. (JE 1) The words “same” and “still” and “continued” are used to describe claimant’s complaints. (See e.g. JE 1) At times, claimant expressed an increase of pain in the rib area. (JE 1:39, 1:42, 1:46)          In Dr. Rayburn’s 2019 records, claimant’s pain was “worsening” with pain radiating to the left calf, leg foot, and left thigh. (JE 2:6) The back pain was two to three on a ten scale and it fluctuated. (JE 2:81, 94, 99) In a letter dated February 12, 2020, Dr. Rayburn opined that claimant’s condition did not objectively worsen over the course of treatment between May 2019 and January 13, 2020, and that claimant’s subjective complaints of back pain increased but the rib pain did not. (JE 2:109)          On January 2, 2020, claimant returned to Dr. Miller who recorded that claimant felt “about the same” and that the injections were having no positive impact. Claimant was not a surgical candidate. (JE 1:55)          Claimant’s treating physician for Parkinson’s, Dr. Struck, also issued an opinion on March 26, 2020, that claimant’s decreased levels of exercise could lead to a material aggravation or acceleration of Parkinson’s. (JE 3:111) (emphasis added)          Claimant was found to be disabled by the Social Security Administration...

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