BOB HEM, Claimant,
v.
WIRTJES CONCRETE, Employer, Defendant.
No. 19700066.02
Iowa Workers Compensation
Before The Iowa Workers’ Compensation Commissioner
January 21, 2021
Head
Note No.: 1803, 2403, 2907
REVIEW-REOPENING
DECISION
HEATHER L. PALMER DEPUTY WORKERS’ COMPENSATION
COMMISSIONER
Claimant
Bob Hem sustained an injury to his right long finger while
working for the defendant, Wirtjes Concrete, on November 16,
2018. Hem filed a petition in arbitration seeking
workers’ compensation benefits. Wirtjes Concrete did
not file an answer or appearance after being properly served
with the petition. Hem filed a motion for entry of default,
which was granted. On November 13, 2019, an arbitration
decision was issued finding Hem sustained a scheduled member
disability of ninety percent to his right long finger and
awarding Hem 27 weeks of permanent partial disability
benefits at the rate of $238.54 per week, in addition to
other relief. The arbitration decision was not appealed and
became final agency action.
On
April 14, 2020, Hem filed a review-reopening petition,
alleging he has developed phantom pain, an industrial
disability, warranting additional workers’ compensation
benefits. Wirtjes Concrete did not file an answer or
appearance after being properly served with the petition. Hem
filed a motion for entry of default on May 27, 2020. Wirtjes
Concrete did not respond to the motion. A deputy
workers’ compensation commissioner granted the motion
and requested the matter be scheduled for a hearing for
consideration and award of relief as may be warranted by the
evidence. Wirtjes Concrete was properly served with the
ruling granting the motion for default. The matter was
assigned to the undersigned for hearing.
A
hearing for consideration and award of relief was held on
December 16, 2020. Attorney Edwin Detlie represented Hem. Hem
appeared and testified. Exhibits 1 and 2 were admitted into
the record. Wirtjes Concrete did not appear at the hearing.
The hearing was recorded through digital means pursuant to
rule 876 Iowa Administrative Code 4.49. A transcript of the
hearing will not be prepared by the agency. If any party
wishes to appeal this decision, that party is charged with
requesting a copy of the digital audio recording and
obtaining a transcript to be prepared and filed by a
certified shorthand reporter. The record was left open for
the receipt of a post-hearing brief which was filed on
December 17, 2020. The brief was received and the record was
closed.
FINDINGS
OF FACT
In
2018, Hem worked for Wirtjes Concrete as a general laborer on
a concrete crew. (Arbitration Decision) Wirtjes Concrete paid
Hem $11.00 per hour and he worked between 30 and 35 hours per
week. (Arbitration Decision) At the time of the hearing on
the review-reopening action Hem was sixty.
Hem has
not graduated from high school. (Hem Testimony) Hem attended
college and completed coursework for an associate of arts
degree, but the school discovered he had not graduated from
high school and withdrew his diploma. (Hem Testimony)
Hem
informed Wirtjes Concrete he injured his right long finger on
November 16, 2018. (Arbitration Decision) Wirtjes Concrete
did not provide Hem with any medical care. (Arbitration
Decision) Hem continued to work in concrete and his right
long finger became infected and badly swollen. Hem reported
his finger hurt and it was full of infection and noted
physicians had told him he had experienced concrete burn, a
poisoning, which caused the infection. (Arbitration Decision)
Hem
received treatment through various medical providers,
including the University of Iowa Hospitals and Clinics
(“UIHC”), where he was hospitalized. (Arbitration
Decision). Following his discharge from the hospital, Hem
received ongoing care from Mark Zacharjasz, M.D., a family
medicine physician. (Arbitration Decision) Dr. Zacharjasz
assessed Hem with a right finger infection, prescribed
antibiotics, and recommended a referral to Iowa Hand.
(Arbitration Decision)
On
January 2, 2019, Paul Riggs, M.D., a surgeon, examined Hem
and diagnosed him with extensor tenosynovitis of the right
long finger, an earlier “concrete burn” to the
dorsal surface of the distal interphalangeal joint in
November 2018, and congestive heart failure. (Arbitration
Decision) On January 4, 2019, Dr. Riggs performed an
exploratory surgery on Hem’s finger, and prescribed
cephalexin. (Arbitration Decision) Dr. Riggs noted a distal
interphalangeal joint complete amputation just proximal to
the joint may be very helpful in the long term. (Arbitration
Decision) Hem continued to treat with Dr. Riggs. (Arbitration
Decision)
Dr.
Riggs recommended an amputation of Hem’s right long
finger. (Arbitration Decision) Hem sought a second opinion
from Timothy Fowler, M.D., an orthopedic surgeon at the UHIC.
(Arbitration Decision) Dr. Fowler examined Hem, listed an
impression of chronic osteomyelitis in the right long finger
distal phalanx and middle phalanx, and recommended amputation
through the middle phalanx. (Arbitration...
