Hess v. Spirit Lake Auto Parts City, 022420 IAWC, 5052990

Case DateFebruary 24, 2020
CourtIowa
SHELLEY HESS, Claimant
v.
SPIRIT LAKE AUTO PARTS CITY, Employer,,
and
SFM MUTUAL INSURANCE, Insurance Carrier, Defendants.
No. 5052990
Iowa Workers Compensation
Before the Iowa Workers' Compensation Commissioner
February 24, 2020
         Head Note No. 1803           ARBITRATION DECISION           MICHELLE A. MCGOVERN DEPUTY WORKERS’ COMPENSATION COMMISSIONER          STATEMENT OF THE CASE          This is a petition in arbitration. The contested case was initiated when claimant, Shelley Hess, filed her original notice and petition with the Iowa Division of Workers’ Compensation. The petition was filed on March 2, 2017. Claimant alleged she sustained a work-related injury on April 21, 2015. Claimant alleged the work injury affected her left lower extremity, and her body as a whole. (Original notice and petition)          For purposes of workers’ compensation, Spirit Lake Auto Parts City, is insured by SFM Mutual Insurance. Claimant testified on her own behalf. Defendants called no witnesses to testify. Defendants filed their answer on March 10, 2017. They admitted the occurrence of the work injury. A first report of injury was filed on April 22, 2015.          The hearing administrator scheduled the case for hearing on August 16, 2019. The hearing took place at Iowa Workforce Development in Des Moines, Iowa at 150 Des Moines Street. The undersigned appointed Ms. Buffy Nelson as the certified shorthand reporter. She is the official custodian of the records and notes. Claimant testified at hearing. The parties offered joint exhibits 1 through 14. The exhibits were admitted as evidence in the case.          Post-hearing briefs were filed on September 16, 2019. The case was deemed fully submitted on that date.          STIPULATIONS          The parties completed the designated hearing report. The various stipulations are:
1. There was the existence of an employer-employee relationship at the time of the injury;
2. Claimant sustained an injury on April 21, 2015 which arose out of and in the course of her employment;
3. The parties agree the injury resulted in both temporary and permanent disability;
4. Temporary or healing period benefits are no longer in dispute;
5. The parties agree the weekly benefit rate is $268.02 per week;
6. The parties agree the commencement date for any permanent partial disability benefits is February 1, 2019;
7. Defendants have waived any affirmative defenses;
8. Medical benefits detailed in exhibit 12 will be paid by defendants per statements made at the time of the arbitration hearing;
9. Prior to the hearing date, defendants have paid twenty-seven (27) weeks of permanent partial disability benefits in the amount of $268.02 per week;
10. Claimant has paid certain costs and defendants do not dispute those costs have been paid.
         ISSUES          The issues presented are:          1. Whether claimant is entitled to permanent partial disability benefits in the form of an industrial disability; and          2. If so, the extent of permanent disability to which claimant is entitled.          FINDINGS OF FACT          This deputy, after listening to the testimony of claimant at hearing, after judging the credibility of claimant, and after reading the evidence, and the post-hearing briefs, makes the following findings of fact and conclusions of law:
The party who would suffer loss if an issue were not established has the burden of proving the issue by a preponderance of the evidence. Iowa Rule of Appellate Procedure 6.14(6).
         Claimant is 43 years old. She is the single mother of two daughters. At the time of her arbitration hearing, claimant was a two-month resident of Sioux Falls, South Dakota. Prior to her move, she had been a life-long resident of Spirit Lake, Iowa. Claimant graduated from high school in 1994. She has no formal education beyond the high school level.          Claimant worked as a waitress for two establishments before her employment at Spirit Lake Auto Parts City. Sam Noel, the owner of the auto parts store, hired claimant as a part time delivery driver. After three months, claimant was promoted to a full time counter sales person. Claimant waited on customers, looked up parts, processed freight, assisted with returns, performed bookkeeping duties, worked as a back-up person for the delivery driver, and performed other duties as assigned. (Transcript, page 13) Claimant testified the owner of the business trusted her to perform the work properly. (Tr., pp. 14-15)          On April 21, 2015, claimant was unpacking freight when an engine hoist fell onto her right foot. (Tr., pp. 17-18) Claimant verbally notified the employer but continued to work for a period of time.          On April 22, 2015, claimant presented to the emergency room at Lakes Regional Healthcare. (Joint Exhibit 3, page 7) James A. Gamache, M.D., examined claimant’s right foot. The physician found:
Foot Exam right foot bone tenderness (2-3+ TENDER OVER MOST OF THE RIGHT FOOT, BUT SEEMS MOST OVER THE DISTAL 1 METATARSAL AND MID FOOT AREA MOD TENDER IN THE TALO-TARSAL AREA), ecchymosis (SLIGHT BRUISING OF THE DORSUM OF THE FOOT), pain, soft tissue tenderness (GENERAL TENDERNESS OF THE RIGHT FOREFOOT AND MID-FOOT), swelling (SLIGHT SWELLING OF THE MID AND FOREFOOT)
         (Jt. Ex. 3, pp. 9, 10)          Dr. Gamache instructed claimant as follows:
1. REST, ICE, ELEVATE SEVERAL TIMES A DAY ELASTIC BANDAGE AS NEEDED
NAPROXEN (ALEVE) 2 TABS WITH FOOD 2 TIMES A DAY REGULARLY UNTIL FEELING BETTER,
THEN AS NEEDED
TYLENOL AS NEEDED FOR DISCOMFORT
GRADUALLY INCREASE ACTIVITY AS DIRECTED
USE CRUTCHES IF NOT ABLE TO BEAR WEIGHT COMFORTABLY
2. LIGHT DUTY AT WORK UNTIL RECHECK
3. SEE WORKMAN’S [sic] COMP DR IN 5-7 DAYS
Return IMMEDIATELY to the Emergency Department for any new symptoms or worsening of your current symptoms.
(Jt. Ex. 33, pp. 10-11)          Timothy D. Blankers, DPM, from NWIA Bone, Joint, & Sports Surgeons in Spencer, Iowa examined claimant on April 24, 2015. (Jt. Ex. 4, p. 12) Dr. Blankers examined claimant’s right foot. The podiatrist found:
EXAMINATION: Examination reveals tenderness over the midfoot at the 2nd metatarsal and 3rd metatarsocuneiform joints. The forefoot also reveals tenderness at the 4th metatarsal and mildly at the 3rd metatarsal heads. There is ecchymosis at this level. No. open lesions are seen today. Moderate swelling is seen to the forefoot.
         (Jt. Ex. 4, p. 12)          Dr. Blankers diagnosed claimant with “Right midfoot pain following injury with possible fracture v. joint disruption.” (Jt. Ex. 4, p. 12) Dr. Blankers ordered a CAM boot for claimant as well as magnetic resonance imaging (MRI). (Jt. Ex. 4, p. 12) MRI test results did not show signs of a contusion or a stress fracture. (Jt. Ex. 4, p. 13) Dr. Blankers suspicioned there was some bruising. (Jt. Ex. 4, p. 13) Dr. Blankers recommended a bone scan. (Jt. Ex. 4, p. 14)          The bone scan was performed. It showed a “suggestion of chronic regional pain syndrome.” (Jt. Ex. 4, p. 15) Dr. Blankers recommended physical therapy. (Ex. 4, p. 15) Claimant reported the physical therapy was of minimal assistance in resolving her pain. Dr. Blankers recommended a consultation with a neurologist. (Jt. Ex. 4, p. 16) There were some scheduling difficulties. As a result, Dr. Blankers recommended an appointment with a pain specialist. (Jt. Ex. 4, p. 17)          Defendants requested claimant to submit to an independent medical examination with Douglas W. Martin. M.D., a specialist in occupational medicine. The examination occurred on August 26, 2015. Dr. Martin physically examined claimant’s right foot. The physician found:
O: Examination done today reveals a lady who is 66 inches tall and weighs 180 pounds. Inspection of her right foot and ankle reveals that there is no obvious discoloration, swelling or ecchymosis noted. She has global tenderness about the mid foot area. She seems quite hesitant and pain inhibited, with respect to attempts at strength; but, at least it is initially thought to be 5/5. Her Achilles and gastrocnemius function are intact. She has a negative Homan’s sign. Thompson testing is normal. There is no
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