Before the iowa workers’ compensation commissioner



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JENSEN (Non-Party) V. LARSON MANUFACTURING CO.

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BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER


_____________________________________________________________________

:

CAROL JENSEN (Non-Party), :



:

Claimant, :

:

vs. :


: File No. 5017025

LARSON MANUFACTURING CO., :

: A R B I T R A T I O N

Employer, :

: D E C I S I O N

and :


:

ZURICH NORTH AMERICA and :

ATLANTIC MUTUAL INSURANCE, :

:

Insurance Carrier, :



Defendants. : HEAD NOTE NO.: 4200

______________________________________________________________________

STATEMENT OF THE CASE

This is a contested case proceeding under Iowa Code chapters 85 and 17A. Insurance carrier Zurich North America (“Zurich”) filed a petition under Iowa Code section 85.21 seeking contribution or indemnification from insurance carrier Atlantic Mutual Insurance (“Atlantic”) relative workers’ compensation benefits and medical treatment provided to non-party Carol Jensen as the result of a claimed work injury in the employ of Larson Manufacturing Company (“Larson”).

The petition was scheduled for hearing on October 23, 2006, but Zurich and Atlantic stipulated that no testimony need be offered and that the cause could be submitted via stipulated joint exhibits. These (Exhibits A-L) were duly filed on October 23, 2006 and constitute the entire evidentiary record. No formal hearing was conducted.

ISSUE


The sole issue presented for resolution is whether Zurich is entitled to contribution or indemnity from Atlantic under Iowa Code section 85.21.

FINDINGS OF FACT

Carol Jensen testified by deposition in this matter on September 21, 2006. (Exhibit L) Jensen is 57 years old and took employment as a production worker with Larson in 1995. Larson is a manufacturer of windows and doors.

Jensen sustained injury to her right hand in a non-work-related motor vehicle accident in January 1996 and thereafter underwent wrist surgery. Jensen’s medical expenses were apparently covered by her automobile insurer, but her arm was immobilized for approximately one year. (Ex. L, pp. 81, 85)

Jensen is somewhat ambidextrous, using her left hand to write, for example, but her right hand to eat. (Ex. L, p. 88) She developed bilateral epicondylitis, originally on the left, and was so diagnosed by Clarence Carlson, D.O., after presenting to Albert Lea Clinic on August 30, 1999. (Ex. D, p. 42) Dr. Carlson recommended physical therapy and imposed light-duty work restrictions. (Ex. D, p. 45) Prednisone was thereafter prescribed by Dr. Carlson’s associate, Mark R. Ciota, M.D. (Ex. D, p. 47) Dr. Ciota administered a steroid injection on the left on December 6, 1999. (Ex. D, p. 48) Dr. Ciota administered another injection on December 21, 1999, noting:

Once again, if her symptoms recur I think she is [going] to need long term conservative therapy, long term work restrictions and don’t think she is a good surgical candidate given the repetitive nature of her work. Therefore I would have her follow-up with Dr. Carlson if that occurs.

(Ex. D, p. 48)

Unfortunately, Jensen’s symptoms have recurred, repeatedly, and continue to do so. However, she is not always symptomatic. Upon Jensen’s presentation for follow-up on January 30, 2000, Dr. Carlson found:

She states that her discomfort has decreased considerably. She still has some very mild pain in the left elbow, both medially and laterally, as well as right medial. However, she finds that day to day she is more comfortable than she has been and also that she finds that she can rest at night more easily. She has a good hand program that she does for stretching. She tends to have some chronic tingling in the hands and some pulling in the wrist.

(Ex. D, p. 49)

Dr. Carlson also anticipated that Jensen would reach maximum medical improvement with another month of exercises and light duty. (Ex. D, p. 49) Alternating light and regular duty restrictions were continued on the next visit, however. (Ex. D, p. 51) On April 25, 2000, however, Jensen still complained of bilateral elbow, forearm and hand pain which Dr. Carlson thought multifactoral in origin: left medial and lateral epicondylitis, right medial epicondylitis, wrist tendonitis, and early carpal tunnel syndrome. (Ex. D, p. 53) He thereupon imposed permanent restrictions, but released his patient from further care:


  1. Unfortunately we will have to set permanent restrictions. She will work 2 hours at regular duty and 2 hours at lighter duty, specifically boxing.

  2. I agree also with Dr. Brault’s note that she will probably, from time-to-time, need prn [as necessary] injections about the epicondyles. Today she was complaining of some flare-up of discomfort around the left elbow, however, I believe that we should institute splinting, Band-It, and continue her stretching for a week or two before we consider having to do more injections.

  3. At this time I am releasing her from my care with the noted restrictions. The patient has full functional upper extremities and no PDRs indicated. Undoubtedly she will need some follow-up for injections at a future date.

(Ex. D, p. 53)

The abbreviation “PDR” is from context interpreted as meaning “permanent disability rating.”

Jensen continued to treat with Dr. Ciota, and received additional steroid injections, three each in 2000 and 2001. (Ex. A and Ex. C) Dr. Ciota at times released her to work without restriction, including November 27, 2000 and February 6, 2001. (Ex. C, pp. 32, 34)

Although Jensen was released from care on the latter date, she returned for additional injections in April and again in October, 2001. (Ex. C, pp. 35, 36)

Workers’ compensation insurance coverage apparently changed over from Atlantic Mutual to Zurich on January 1, 2000, but Atlantic Mutual accepted liability for Jensen’s medical expenses until closing its file in 2002. Since that time, Jensen received additional steroid injections on September 30, 2002, March 26 and October 22, 2003, and April 25, 2005. Liability for these and, very probably, for future treatment is at issue here.

On September 30, 2002, Dr. Ciota noted a diagnosis of “lateral recurrent chronic lateral epicondylitis.” (Ex. C, p. 37) Dr. Ciota also offered the following comments in his note of April 25, 2005:

The patient is in for evaluation of her right elbow. She continues her work at Larson’s. I last saw here in October 2003. She has had recurrent epicondylitis on both elbows. It is really her right one that is bothering her. It has been really progressive for the past couple of months. She is not particularly aware of any new activity that she is doing. They do have a new line at Larson’s but she does not think that the activities are all that different from previous.

(Ex. C, p. 41)

Jensen herself associates her condition with the original onset of symptoms in 1999, but more significant is this testimony:

Q. Well, in your experience do you think this figure, most recent problems, the problems you had since 2005, do you think they are related to the condition that you had back in 1999? This is really in your experience or is it something that got worse between 1999 and 2005?

A. I don’t know. I would just say it’s, you know, I got the tendonitis and the epicondylitis and I just think that any jobs you do and it’s repetitive over and over, it’s what are you going to do? You know. I can’t quit work, you know.

Q. Do you think that epicondylitis has gotten worse over time?

A. Oh, I don’t – I don’t think it’s gotten any worse. It hasn’t gotten any better. You know, I still have reoccurrences of where it really bothers but. . . .

(Ex. L, p. 99)

CONCLUSIONS OF LAW

Carol Jensen is not a party to this litigation and has apparently never initiated litigation or entered into an agreement for settlement relative any of the claims. Although she has at times been restricted to light duty, she has apparently not lost time and has not to date made claim for permanency benefits.

A personal injury contemplated by the workers’ compensation law means an injury, the impairment of health, or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something that acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries resulting from cumulative trauma are compensable. McKeever Custom Cabinets v. Smith, 379 N.W. 2d 368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934). An occupational disease covered by chapter 85A is specifically excluded from the definition of personal injury. Iowa Code section 85.61(5); Iowa Code section 85A.8.

Aggravation of a preexisting condition is one manner of sustaining a compensable injury. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961).

Where a disability gradually develops over an extended period of time, the Iowa courts have long recognized that a compensable, cumulative injury may have occurred, McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). Determination of a “date of injury” in such cases, however, is an issue the courts have regularly revisited. In Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824 (Iowa, 1992), the supreme court ruled that the date of injury should be the date the injury “manifests” itself; that is, on the date when the fact of injury and its causal relationship to the employment would have been plainly apparent to a reasonable person. The court further ruled that the worker did not have to leave work to have a cumulative injury.

In Venenga v. Jon Deere Components Works, 498 N.W.2d 422 (Iowa App. 1993), the Iowa Court of Appeals determined that more is required than mere knowledge of injury, or receipt of medical care: the worker must also realize that his or her injury will have an impact on employment. Finally, in George A. Hormel & Co. v. Jordan, 559 N.W.2d 148 (Iowa 1997), the Iowa Supreme Court rejected the argument that a permanency rating is necessary to constitute an injury date, affirming an agency finding that injury occurred when the claimant was medically advised that he would not recover from a cumulative injury and that permanent work restrictions would be required.

In Weitzell v. Packaging Corporation of America, File Nos. 5000444, 5000445 (App. Dec. 2003), the date of injury was pegged to the imposition of a work restriction against overtime. The case held:

Cumulative trauma is an ongoing process and the injury is not complete until exposure to cumulative trauma ends. Cumulative injury does not occur on one particular day. When dealing with cumulative trauma injury there is not necessarily one particular date of injury that is correct to the exclusion of all other dates. There can be more than one potentially correct date depending on the progression of the injury. Fixing the date can be important for issues such as liability among successive employers, the rate of compensation and the statute of limitation. It often has little materiality for most other issues. Merely obtaining medical care is not typically a correct date of injury but it could be if liability is disputed and it becomes necessary for the employee to pursue a claim to cause the employer to pay for the medical care even though no temporary or permanent disability has occurred and the employment has not been impacted. That claim for medical benefits would not bar a later claim for benefits for disability if the disability had not yet occurred at the time when the medical benefits were claimed. The reasoning is consistent with the rules for occupational disease benefits found in section 85A.5. [Disability from the date of surgery] is frequently a correct date of injury. The date permanent work activity restrictions are imposed can be the date of injury. The date any other impact on employment occurs can be a correct date.


This litigation does not ask the agency to determine whether Jensen sustained permanent disability and that issue will not be otherwise addressed here.
But what is an “injury” where medical treatment is required for a condition prior to the time it is “manifested” as outlined above? If a worker needs emergency room care for a cut that later heals without impairment or lost time, the worker has in a real sense sustained a compensable work injury in the sense that treatment costs can be recovered if liability were to be unreasonably denied. The same is logically true of cumulative trauma injuries.
Even though Jensen’s symptoms had their onset in 1999, it appears that despite ongoing discomfort to a degree, Jensen has recurrent periods of more intense pain causing need of continued injections, and a reading of Dr. Ciota’s comments, especially the entry of April 25, 2005, indicates that the recurrences are strongly associated with continued work exertion.
Where, as here, claimed permanency is not at issue, recurrent need of medical treatment associated with ongoing work exertion should be seen as new and separate, if “recurrent,” injuries. Zurich’s claim for indemnity against Atlantic Mutual accordingly fails.
ORDER
THEREFORE, IT IS ORDERED:
Zurich’s petition under Iowa Code section 85.21 is denied.
Costs are taxed to Zurich.

Signed and filed this _____19th____ day of December, 2006.
__________________________
DAVID RASEY
DEPUTY WORKERS’
COMPENSATION COMMISSIONER

Copies to:


Amy E. H. Miller

Attorney at Law

PO Box 10434

Des Moines, IA 50306-0434


Joseph A. Happe

Attorney at Law

Ste. 170, 2700 Westown Pkwy.

West Des Moines, IA 50266-1411


DRR/tjr

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