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...
