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BEFORE THE IOWA WORKERS' COMPENSATION COMMISSIONER

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BEFORE THE IOWA WORKERS' COMPENSATION COMMISSIONER Powered By Docstoc
					       BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______________________________________________________________________
                                 :
ALICE TALTON,                    :
                                 :
     Claimant,                   :
                                 :
vs.                              :
                                 :              File No. 5027678
FLEUR DE LIS MOTOR INNS, INC.,   :
                                 :                 APPEAL
     Employer,                   :
                                 :              DECISION
and                              :
                                 :
CAMBRIDGE INTEGRATED SERVICES :
GROUP, INC.,                     :
                                 :
     Insurance Carrier,          :    Head Note No.: 1100; 1402.30; 1801.1;
     Defendants.                 :          2206; 2207; 2701; 3001; 4000.2
______________________________________________________________________

                             STATEMENT OF THE CASE

       Upon written delegation of authority by the workers’ compensation commissioner
pursuant to Iowa Code section 86.3, I render this decision as a final agency decision on
behalf of the Iowa workers’ compensation commissioner.

        Defendants appeal from an arbitration decision filed August 19, 2010, in which
the presiding deputy commissioner found that claimant had sustained injuries to her
right knee and low back as a result of her April 17, 2007 injury to her left foot and
awarded a running award of healing period benefits as well as requested alternate
medical care.
       The record, including the transcript of the hearing before the deputy and all
exhibits admitted into the record, has been reviewed de novo on appeal. The
undersigned observes that she has rarely found exhibits so arranged to obfuscate the
record in its entirety as were claimant’s in this matter.

                                 FINDINGS OF FACT


       Claimant was 50 years old at the time of the evidentiary hearing. (Claimant’s
testimony) She is a high school graduate who received an associate’s degree in
computer science in the early 1980’s. (Claimant’s testimony; Exhibit 22, page 380; Ex.
25, p. 392; Exhibit C, internal pages 76-77; Ex. M, p. 3) Claimant’s work history
includes cashier, restaurant owner, production chef, food preparation, and cook.
TALTON V. FLEUR DE LIS MOTOR INNS, INC.
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(Claimant’s testimony; Ex. 22, pp. 379, 382; Ex. 25, pp. 393-394; Ex. C, int. pp. 73-74;
Ex. M, pp. 4-5)

       Claimant began working as a prep cook at the Fleur De Lis Motor Inns, Inc. d/b/a
Holiday Inn Airport on September 27, 2004. (Claimant’s testimony; Ex. K, p. 1) The job
required that she prepare and cook various foods. She regularly lifted 10-25 pounds and
frequently lifted to 40 pounds. (Ex. 30, pp. 421-422; Ex. LL, pp. 1-2)

        On April 17, 2007, claimant sustained a stipulated injury to the left foot when a
six pound can of tomatoes fell from a height above claimant’s head and struck her on
the left foot. (Ex. 8,167; Ex. C, int. pp. 19-21) Claimant treated at the Mercy Medical
Center Emergency Department on April 19, 2007. Claimant reported that weight
bearing and walking increased her pain, which she localized as about the great toe
area. A pain diagram recorded tenderness in the metatarsal (MT) and
metatarsophalangeal (MTP) joint. (Ex. 8, pp. 165-169) Left foot x-rays were read as
negative. (Ex. D, p. 2) She was given crutches and a surgical shoe, prescribed
medication, and released to return to work. (Ex. 8, pp. 166,170)

       Claimant saw her family doctor, D. Schossow, D.O., on April 24, 2007 and
complained of left great toe numbness and burning paresthesia. He prescribed
Prednisone and instructed claimant to return on April 26, 2007. That day, she described
increased foot pain with steroid use and again reported MTP joint tenderness. Dr.
Schossow referred her to Robert Eells, DPM, whom she first saw on April 27, 2007.
(Ex. 14, pp. 258-259; Ex. 5, p. 96)

        On April 27, 2007 examination, claimant had significant pain with palpation under
the left first metatarsal head as well as dorsally over the joint. Her active control over
left foot dorsiflexion and plantar flexion was limited as compared to the right. Dr. Eells
took additional left foot x-rays, one of which he read as showing a small disruption of the
metatarsal head rim, where the articular cartilage ends and the bone begins. He
believed that finding “may be a fresh injury at the dorsal medial aspect of the left first
metatarsal head.” Another x-ray showed sclerosed-looking bone along the rim of the
metatarsal head within the joint. Dr. Eells felt claimant may have sustained cartilage
damage as he believed the “small x-ray finding alone [was] probably not sufficient to
explain the amount of pain [claimant] was having.” He exchanged claimant’s surgical
shoe for an air-bladdered cam walker while continuing her on crutches and off work.
(Ex. 5, pp. 96-98)

       To be sclerosed is to be hardened. Taber’s Cyclopedic Medical Dictionary, 10th
Edition, page S-16. Bone sclerosis or eburnation is “a change in exposed subchondral
bone structure in degenerative joint disease in which it is converted into a dense,
smooth substance like ivory.” Stedman’s Medical Dictionary Illustrated, 23rd Edition,
pages 1262, 437.

       When Dr. Eells saw claimant on May 11, 2007, he instructed her to try using a
regular shoe instead of the cam walker at least one hour per day. On May 18, 2007,
TALTON V. FLEUR DE LIS MOTOR INNS, INC.
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claimant advised Dr. Eells she experience great toe numbness when wearing a regular
shoe, which the doctor felt might result from compression of the superficial nerves. (Ex.
5, pp. 101, 103)

       On June 5, 2007, Dr. Eells noted that claimant was wearing her regular shoes
and ambulating well. She had no swelling or discoloration at the first
metatarsophalangeal joint, which the doctor characterized as the site of her main injury.
Claimant continued to complain of numbness around the distal half of the [great] toe.
Her dorsiflexion and plantar flexion range of motion were greatly improved. Dr. Eells
released claimant to return to work with a ten pound weight restriction as of June 11,
2007. (Ex. 5, p. 106)

       On June 11, 2007, claimant saw Dr. Eells and reported her attempt to return to
work that morning had failed because her left foot began to throb after just a few
minutes of standing. Left foot x-rays were again taken and compared with those
previously taken. The new x-rays show no changes in the left MTP joint, which the
doctor described as well maintained and without evidence of fracture, dislocation, or
osteophytes. (Ex. 5, p. 108)

        As of June 18, 2007, claimant was certain she could not stand and work. Dr.
Eells stated that her progress was poor and she was not responding as expected to rest
and physical therapy. He ordered a left foot MRI “because her pain [was] way out of
proportion to what we can see clinically and on x-ray.” (Ex 5, pp. 110-111) A June 25,
2007 left foot MRI showed tri-segment fibular sesamoid with mild increased signal
intensity likely reflecting an old fracture, mild tibial sesamoiditis with mild degenerative
changes at the tibial sesamoid first MT articulation, as well as osteoarthritis at the first
MTP joint without a focal osteochondral lesion. (Ex. 9, pp. 180-181)

       On July 3, 2007, Dr. Schossow noted that since her foot injury claimant had
developed back pain with muscle spasm, as wearing a “moon boot” was altering her
gait. Claimant had no neurologic abnormalities and the doctor characterized her pain
as “in excess of objective findings.”(Ex. 14, pp. 260-261) Apparently, Dr. Schossow
prescribed physical therapy for the back complaints.

         Dr. Eells again saw claimant on July 18, 2007. She was despondent and crying.
She reported that wearing the CAM walker made her back hurt and that hydrocodone
was ineffective for her continuing foot pain. On examination, the foot was neither
swollen nor discolored. Claimant reported pain with palpation of the dorsal and plantar
left first MTP joint. Dr. Eells prescribed Percocet 5/325 and referred claimant to Eric
Barp, DPM, for further treatment of a presumed left fibular sesamoid fracture. Dr. Eells
believed the sesamoid might need to be surgically removed; he characterized Dr. Barp
as a “highly experienced foot surgeon”. (Ex. 5, pp. 112-114)

        Dr. Barp is board certified in rearfoot reconstructive and ankle surgery and in
foot surgery. He is a diplomat of the American Board of Podiatric Surgery. (Ex. P, p. 1)
TALTON V. FLEUR DE LIS MOTOR INNS, INC.
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        Dr. Barp saw claimant on July 19, 2007. After reviewing the MRI, he noted the
nondisplaced fibular sesamoid fracture showed signs of healing while remaining quite
painful on palpation. Dr. Barp did not believe surgical excision of the fractured
sesamoid was then warranted as such fractures typically heal with conservative
treatment. He referred claimant to be fitted for orthotics “to off load this”, apparently, the
fracture area. He directed claimant to “get out of the CAM boot” and expressed the
belief that her back and hip pain would subside once she did so. Dr. Barp released
claimant to return to work on July 23, 2007, sit down work only with the left leg elevated,
something the employer could not accommodate. (Ex. 6, p. 118-119, 121; Ex. A, pp. 1-
2)

       When Dr. Barp saw claimant on August 21, 2007, he noted:

            Ms. Talton presents back to clinic today for further evaluation of her
       left sesamoid fracture, stating she is having exquisite pain and it is hurting
       her. She states that it is quite painful to her. She did get her orthotics but
       states that it is still painful and states she cannot perform her job, although
       she states she wants to get back to walking, as well as walking her dog
       and is able to walk but when we press her to go back to work, she states
       she cannot do it. She presents today for further evaluation of this.

(Ex. 6, p. 122)

       Claimant denied any lower leg cramping, lower extremity edema, or cold
sensation to the feet. On examination, her muscle strength was 5/5 in all groups tested;
muscle tone was normal. Inspection and palpation of the bones, joints, and muscles
was unremarkable and without reproducible pain. Dr. Barp felt that, apparently
objectively, claimant was "doing quite well." He expressed the belief that "she needs to
get back up and get going on this, frankly." He released her to standing and walking
work not to exceed four hours [per day], stating that she may need to sit periodically
over the next six weeks. He opined that she then should require no further treatment
and should be able to return to full duty work. Dr. Barp advised claimant that she did
not need to use narcotics for her pain and prescribed Ultracet 37.5. (Ex. 6, p. 122)

        On September 13, 2007, Julie Greenwood, PT, DPT, of Mercy Medical Center
Rehabilitation Services, advised Dr. Schossow that claimant had attended 11 of 13
scheduled physical therapy visits during the period certified for physical therapy, noting
that claimant had been scheduled for numerous other visits that she either canceled or
rescheduled. (Ex. 10, p. 187)

       Claimant's last physical therapy visit had been on August 13, 2007. Claimant
was then verbalizing 5/10 pain that was worse in the morning. She was ambulating
better with the boot off. She stated that she was still adapting to the new orthotic.
Physical therapist Greenwood stated that claimant had not met any long-term goals,
secondary to claimant's not attending sessions for continuation of therapy. Claimant
TALTON V. FLEUR DE LIS MOTOR INNS, INC.
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was considered to have self-discharged from therapy given her failure to attend further
scheduled visits. (Ex. 10, p. 187)

       Claimant called Dr. Barp’s office on October 10, 2007, stating that the CAM boot
and back pain prevented her working and requesting further physical therapy, which Dr.
Barp prescribed. (Ex. 6, pp. 124-125) Claimant was discharged from therapy on
November 7, 2007, after attending eight of nine scheduled visits. She then was
continuing to report high levels of foot and back pain, but also reported a ten percent
decrease in her foot pain. (Ex. 10, p. 212)

       Claimant saw Dr. Schossow on October 31, 2007, and continued to complain of
foot pain as well as increased back pain. She continued to wear the CAM boot. He
assessed her with a nonhealing foot fracture and felt she should be checked for
diabetes. Claimant who is 5'2" tall then weighed 218.4 pounds. Dr. Schossow
prescribed hydrocodone as well. (Ex. 14, p. 262)

      On November 2, 2007, Dr. Barp recorded:

           Ms. Talton … presents back to the clinic today for further evaluation of
      her left foot. She states her left foot is hurting as well as her back. She
      cannot work. She did become quite emotional in today's visit and refuses
      to leave the office until she hears that she cannot work.

(Ex. 6, p. 130)

        Claimant denied lower leg cramping, lower extremity edema, and cold sensation
to the feet. On physical examination, muscle strength was 5/5 for all groups tested;
muscle tone was normal. Inspection and palpation of the bones, joints, and muscles
were again unremarkable and without reproducible pain. She had no pain whatsoever
on palpation of the left sesamoid.

      Dr. Barp assessed questionable left sesamoiditis, while further stating:

           Alice is doing well. I did discuss this with her. She needs to get back
      and going on this. Frankly, as far as work restrictions go, she can go.
      She does not have any reproducible pain. However, she states she
      cannot work and just wants sit down work only. After her being in my
      office crying and promoting a scene for approximately 45 minutes, I did
      give this to her[;] however, I did have the privilege of speaking with Marilyn
      Badgley about this. I do not believe there is anything wrong with Ms.
      Talton. I cannot reproduce any pain to this left sesamoid. That being
      said, I do not believe there is anything wrong with her. My
      recommendation was that she should get back up and get going on it.
      She will follow-up with me as needed.

(Ex. 6, p. 130)
TALTON V. FLEUR DE LIS MOTOR INNS, INC.
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      Marilyn Badgley, R.N., was the certified nurse case manager that the insurer
assigned to claimant's workers’ compensation claim. (Ex. 34-1)

       Sesamoiditis is inflammation of the sesamoid bone. See Stedman’s Medical
Dictionary Illustrated, 23rd Edition, page 1276.

      Dr. Barp released claimant to return to work without restrictions on November 8,
2007. (Ex. A, p. 5)

        Claimant called Dr. Barp’s office on November 12, 2007, requesting an off-work
status and was told they had to go by Dr. Barp’s note that stated she had been released
to return to work without restrictions on November 8, 2007. (Ex. 6, p. 131)

        Claimant saw Dr. Schossow on November 13, 2007, and reported her pain
persisted with weight bearing. She felt she was unable to work. Dr. Schossow referred
her to a Dr. Trout, DPM, for further left foot evaluation. (Ex. 14, p. 263) No records from
a Dr. Trout are in evidence.

       Claimant again saw Dr. Barp on November 15, 2007, and stated she could not
work. Dr. Barp recorded: "It hurts and has been quite verbal throughout this entire
process stating that work will not let her work until we release her in which we have tried
to release her." (Ex. 6, p. 134)

      Once again claimant's physical examination was unremarkable with no
reproducible pain. The doctor ordered a second MRI to rule out sesamoiditis and took
claimant off work until that study took place, "as she did become quite verbal and tied
up approximately 45 minutes of [Dr. Barp's] time arguing about this." (Ex. 6, p. 134)

        The left foot MRI, done on November 19, 2007, was interpreted as showing no
convincing acute findings. It did demonstrate degenerative changes in the first MTP
joint with a tiny joint effusion as well as a bipartite lateral sesamoid bone with no definite
acute marrow edema (Ex. A, p. 8)

        Effusion is the escape of fluid from the blood vessels or lymphatics into the
tissues or a cavity. Stedman’s Medical Dictionary Illustrated, 23rd Edition, page 444.

        On November 20, 2007, claimant again saw Dr. Barp. She was continuing to
walk in the boot and was complaining of back pain. Physical examination was un-
remarkable and without reproducible pain to her entire left foot. Dr. Barp noted that the
MRI showed degenerative joint disease in the first MTP joint as well as a bipartite
sesamoid, a finding consistent with a previous fracture. The doctor stated, however,
that as there was no definite marrow edema, the fracture appeared to be old and
healed. (Ex.6, p. 138) Dr. Barp expressed his belief that claimant could return to full
duty work. He gave her a 20 pound weight lifting restriction at her request, however.
(Ex. 6, p. 138)
TALTON V. FLEUR DE LIS MOTOR INNS, INC.
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       In a November 20, 2007 letter to nurse Badgley, Dr. Barp opined that claimant's
big toe arthritis was “not coincidental to the work comp injury.” He also stated that
claimant should get out of the walking boot and quit using a cane. He opined she was
at maximum medical improvement. (Ex. 6, p. 136)

        Claimant testified that she believed Dr. Barp wanted her to wear the CAM boot.
Dr. Barp’s records clearly and consistently state his desire that she not wear the CAM
boot. He recorded his expressed frustration at her unwillingness to stop wearing the
boot. It simply is not credible that claimant had no understanding that Dr. Barp, from
her first visit with him onward, desired that she stop wearing the boot. Her continuing to
wear the boot after her initial July 2007 visit with Dr. Barp clearly was contrary to
medical advice and represented a personal choice.

         Claimant returned to Dr. Barp’s office on December 6, 2007, with complaints of
right knee pain and clicking that she attributed to wearing the CAM boot. On
examination, claimant had an audible pop with moving the knee. Dr. Barp advised
claimant that he was a foot and ankle physician and, therefore, she needed to see Dr.
Schossow regarding her right knee complaints. Dr. Barp also stated that claimant had
no permanent disability and advised her that she could go back to full duty work without
restrictions. (Ex. 6, p. 139)

        Claimant did see Dr. Schossow on December 6, 2007, and complained of both
right knee and back pain. He ordered a lumbar MRI that was done on December 7,
2007. (Ex. 14, p. 264) The study demonstrated a segmentation anomaly with an extra
vertebral segment designated as L6. Facet arthroplasty was seen at L5-L6 and at L4-
L5. Mild bony dominant neural foramina narrowing was present on the left at L5-L6, but
without critical central stenosis, disc herniation, or lumbar nerve root impingement. (Ex.
D, p.3)

       Dr. Schossow saw claimant on December 27, 2007, and referred her to David
Wadle, D.O., of Mercy Pain Medicine Center, who saw her on January 2, 2008. (Ex. 14,
p. 265) Claimant advised Dr. Wadle that she had had a foot injury six months earlier
and had to wear a boot quite high on the left; thereby shifting her pelvis, which she
believed contributed to her overall low back discomfort. (Ex. 11, p. 229)

        On examination claimant had a normal gait and was able to toe and heel walk.
Straight leg raising was negative as were Spurling's sign and Faber's test. Sensation
was intact to light touch and pinprick and without asymmetry, although with diminution
[of sensation] of the L3, 4, 5, and S1 dermatomes. With palpitation claimant had
exquisite discomfort overlying the left posterior elements and mild to moderate sciatic
notch tenderness bilaterally. (Ex. 11, p. 230)

       Dr. Wadle diagnosed claimant with low back pain with severe facet
osteoarthropathy and administered a trial medial branch block on the left. (Ex. 11, pp.
230-231) When seen on January 17, 2008, claimant advised Dr. Wadle that procedure
TALTON V. FLEUR DE LIS MOTOR INNS, INC.
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had given her no relief. He then administered a transforaminal injection on the left at
L5. (Ex. 11, p. 232)

       Claimant sought treatment with Vincent Mandracchia, DPM, on January 11,
2008. On examination, claimant’s muscle strength was 5/5. She reported pain upon
palpitation of the medial plantar first metatarsophalangeal joint and the sesamoid bones.
Dr. Mandracchia interpreted x-rays as demonstrating in non-healed medial sesamoid
fracture and advised claimant that she would need the sesamoid removed. He ordered
a bone scan; that study was negative for sesamoid fracture. (Ex. 1, pp. 1-6)

       On January 29, 2008, Dr. Mandracchia observed that claimant had a palpable
dorsal spur on her left first MTP joint as well as limited range of motion and painful mild
crepitus of that joint [as was] consistent with degenerative joint disease. He
recommended surgical exploration with possible drilling of the first metatarsal head to
revascularize damaged cartilage. (Ex. 1, pp. 6-8)

On January 31, 2008, Denise Mandi, DPM, performed a left first MTP joint exostectomy
with resection of a dorsal ridge of bone at the fist metatarsal head distally. Per Dr.
Mandi’s operative note, at surgery, the cartilaginous surfaces of the first metatarsal
head and the base of the proximal phalanx were found to be intact and free of
pathology. (Ex. 2, pp. 34-37)

        Dr. Mandi released claimant to return to work with no specified restrictions
effective February 14, 2008, although with what the doctor characterized as a post-
[operative] shoe. (Ex. 3, p. 69) On February 26, 2008, Dr. Mandi released claimant to
return to work on March 26, 2008 with a restriction of limiting weight bearing of the left
foot. (Ex. 2, p. 38) Claimant had 20 physical therapy visits for her left foot from March
11, 2008, through May 28, 2008. (Ex. 4, pp. 76-94)

       On March 11, 2008, claimant reported right knee pain, popping, and swelling to
Dr. Schossow. He ordered an MRI, which was done on March 13, 2008 and
demonstrated medial meniscus posterior horn degeneration without evidence of a
meniscal tear.
(Ex. 14, p. 266; Ex. 13, p. 257)

        On March 25, 2008, claimant advised Dr. Mandi that claimant's left first MTP joint
pain was the same. Claimant was tender and out of Percocet. Dr. Mandi interpreted x-
rays as revealing a possible left “dorsiflex first ray”. The doctor advised claimant that
she may require hemi implant surgery. Dr. Mandi released claimant to return to work
effective March 31, 2008, with a restriction of weight bearing as tolerated for the left
foot. (Ex. 2, pp. 41-42; Ex. 3, pp. 73-74)

       Orthopaedic surgeon, Timothy Kenney, M.D., evaluated claimant for right knee
pain on March 26, 2008. Claimant advised the doctor that she had had right knee pain
for several months, if not up to a year intermittently; she reported the knee pain had
TALTON V. FLEUR DE LIS MOTOR INNS, INC.
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begun several months after she had had to alter weight-bearing because of a foot injury.
(Ex. 15, p. 271)

         On examination, claimant had mild right knee effusion, moderate patellofemoral
crepitation, and pain with patellar compression and stressing. She did not have
significant medial and lateral joint line tenderness; she was stable to anterior, posterior,
varus, and valgus stressing. All maneuvers were negative; she was neurovascularly
intact. (Ex. 15, p. 271)

        Dr. Kenney’s impressions were right knee pain with synovitis that appeared to
be secondary to chondromalacia patellae, and early degenerative disease. He did not
think claimant was a surgical candidate; but did administer a right knee epidural steroid
injection. The doctor advised claimant that she needed to lose weight and do patellar
stabilization exercises, as she would have less knee problems if she improved her
patellar mechanics. Claimant then was five feet two inches tall and weighed 217
pounds. (Ex. 15, pp. 271-273)

       Dr. Wadle saw claimant on April 8, 2008; she was in no acute distress and
reported having had “dramatic relief” from the prior transforaminal injection. The doctor
administered a repeat injection and instructed her to return in three months. (Ex. 11,
pp. 235-236)

         Dr. Kenney again saw claimant for right knee pain on April 21, 2008. Claimant
reported severe pain that was difficult to tolerate and advised she had not had much
relief from the steroid injection, which Dr. Kenney described as “unusual”. On
examination, her pain was out of proportion to stimulation. The doctor was uncertain
how to proceed and did “not believe there [was] a simple solution for [claimant’s]
problem at her age and weight levels.” His impression was likely degenerative right
knee pain; he again injected the knee. (Ex. 15, p. 274)

      Dana Simon, M.D., apparently a colleague of Dr. Wadle, saw claimant on July 7,
2008. Claimant again gave a history relating her back pain to her foot injury. On
examination, claimant had significant left sacroiliac joint pain. The doctor administered
a sacroiliac joint injection. (Ex. 12, pp. 243)

        On July 8, 2008, Dr. Mandi wrote that claimant’s MTP joint exostectomy had
provided only limited improvement in her condition secondary to articular cartilage
damage that joint replacement would treat. Dr. Mandi opined claimant’s condition and
symptoms directly resulted from her work injury and described claimant’s presentation
as “consistent with this type of blunt trauma to a joint.” Dr. Mandi stated that claimant
would have a more favorable prognosis with hemijoint replacement surgery, "as this
surgery would address the degenerative cartilage that was discovered at the time of the
first surgery." (Ex. 2, pp. 46-47)
TALTON V. FLEUR DE LIS MOTOR INNS, INC.
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        At the January 2008 surgery, per the operative note the cartilaginous surfaces of
the first metatarsal head and the base of the proximal phalanx were found to be intact
and free of pathology. No other references to cartilage damage were recorded in the
operative note that Dr. Mandi then authored. It can be presumed that a reasonably
conscious board certified physician would have recorded in the operative report any
cartilage damage encountered.

        Claimant returned to Dr. Mandi on July 22, 2008, and complained of 8[/10] [foot]
pain and reported being out of medication. The doctor assessed left first MTP joint
hallux limitus and degenerative joint disease; she prescribed Percocet 5/325, number
120. (Ex. 2, pp. 49-51)

        Hallux limitus is also known as hallux rigidus. (Ex 2, p.60) It is great toe stiffness
that accompanies degenerative joint disease. See Stedman’s Medical Dictionary
Illustrated, 23rd Edition, pages 614, 125.

         On September 8, 2008, Dr. Mandi refilled the Percocet prescription. Claimant
then reported 7[/10] pain. (Ex. 2, pp. 53-55) On October 8, 2008, Dr. Mandi again
refilled the Percocet and placed claimant in a closed toe “post op shoe” so claimant
could continue to work as a cook, as she had been doing. (Ex. 2, pp. 56-58) On
November 5, 2008, claimant told Dr. Mandi that claimant had stopped wearing her post
op shoe as it was throwing her back into spasm. Dr. Mandi refilled the Percocet
prescription and prescribed Flexeril. (Ex. 2.pp.59-61) Dr. Mandi again refilled those
prescriptions on January 5, 2009. (Ex. 2, pp. 63)

         On October 10, 2008, claimant had told Dr. Simon that the July sacroiliac joint
injection had not helped very much. The doctor noted that claimant also had failed a
trial of medial branch blocks and had had only temporary improvement with a selective
left L5 root block. The doctor stated that claimant had not put weight on her left great
toe and consequently had developed left-sided myofascial and sacroiliac pain, which
the doctor believed likely would be permanent unless claimant had [great toe] joint
replacement surgery. (Ex. 12, pp. 247-248)

         Claimant returned to Dr. Kenney on October 20, 2008, and reported gradually
worsening right knee pain, for which she sought another steroid injection and which he
administered. On right knee examination claimant had patellofemoral crepitation as well
as medial and patellofemoral discomfort. She had no instability; her range of motion
was well preserved. Once again the impression was right knee pain with degenerative
arthritis. (Ex. 15, p. 275)

      On November 25, 2008, claimant told Dr. Simon that the left lower back pain was
worse than the left foot pain. Dr. Simon attributed the back pain at least in part to
claimant’s abnormal gait and her difficulty with prolonged standing. On examination,
when the doctor barely touched her back muscles, claimant kind of stood "right up
wards from the forward flexed position of lumbosacral spine, indicating diminished
TALTON V. FLEUR DE LIS MOTOR INNS, INC.
Page 11


muscle tone in [that] area.” Dr. Simon advised claimant that further injections would not
help so long as her gait was altered. (Ex. 12, pp. 249-250)

      On November 19, 2008, in response to an October 22, 2008 letter from
claimant’s attorney, Dr. Kenney agreed with the statement in the attorney's letter that
claimant's altered weight-bearing had aggravated her pre-existing arthritic right knee
and precipitated claimant's requiring medical care for the knee. (Ex. 15, pp. 276-278)

       Dr. Kenney later revised his opinions on June 8, 2009, agreeing with the
following statements in a letter that defendants' attorney had drafted:


           . . . . wearing the boot could very well result in a transfer of weight and
       that the right knee could have increased symptoms due to increased
       weight being place [sic] on the knee when she wore the boot. This would
       be no different than simply putting more weight on the knees due to lifting
       or an increase of body weight.

            . . . . you do not believe that the wearing of the CAM boot resulted in
       any permanent aggravation of her condition but was better described as a
       temporary exacerbation of her symptoms with a return to baseline once
       she was no longer wearing the boot. . . . . you do not possess an opinion
       one way or the other that there is any casual relationship between her
       injured left foot and her complaints of lower back pain.

(Ex. 15, p. 279)

        In December 9, 2008 and December 11, 2008 letters to defendants' attorney, Dr.
Barp opined that claimant's big toe arthritis was not related to the April 17, 2007 work
injury, as the MRI demonstrated long-standing left MTP joint degenerative changes.
The doctor further opined that the January 2008 surgery was for the underlying arthritis
and was not related to the April 17, 2007 injury, and that any joint replacement surgery
also would relate to the underlying degenerative arthritis of the big toe and not to the
April 17, 2007 work injury. Dr. Barp reiterated his opinion that claimant had reached
maximum medical improvement on or before November 20, 2007 and had neither
permanent impairment nor permanent restrictions as a result of the April 17, 2007 injury.
(Ex. 6, pp. 142-145)

        On December 17, 2008, in response to a December 10, 2008 letter from
claimant's attorney, Dr. Simon again opined that claimant's altered weight-bearing
activities that the doctor attributed to a foot injury aggravated a pre-existing low back
condition and precipitated the need for medical treatment of the low back. (Ex. 12, p.
255)

      Dr. Mandracchia independently evaluated claimant at her attorney’s request on
June 8, 2009, and issued his report on July 8, 2009. (Ex. 1, pp. 10-14) On examination,
TALTON V. FLEUR DE LIS MOTOR INNS, INC.
Page 12


her first MTP joint range of motion was significantly limited and painful. Claimant had
an antalgic gait pattern that the doctor attributed to her inability to flex the great toe as
required for proper propulsion. (Ex. 1, pp. 12-13) Dr. Mandracchia agreed with Dr.
Mandi's assessments of left first metatarsal phalangeal (MTP) degenerative joint
disease and hallux limitus, that is, a stiff great toe, with severely limited range of motion.
(Ex. 1, p. 13) Dr. Mandracchia related both conditions to the April 17, 2007 work injury,
reasoning:


            It is important to look at the records and radiographs from Ms. Talton’s
       visits with Dr. Robert Eells. The 4/27/07 radiographs of Ms. Talton’s left
       foot following the direct blunt injury to her left foot clearly demonstrate a
       defect in the dorsal medial aspect of the cartilage of the first metatarsal
       head. There is no doubt that an associated sesamoid fracture and
       subsequent sesamoiditis were also present from this injury and required
       immediate treatment (and these eventually healed as evidenced by the
       negative bone scan report) however, in the long term the damage to the
       cartilage progressed to its current state.

           This is not an uncommon occurrence following a blunt contusion
       trauma to a joint. The hyaline cartilage is damaged, a small cortical bone
       defect occurs and the body attempts to repair this damage by laying down
       new and excess bone as a protective mechanism. Eventually a bone spur
       develops and that is exactly what Ms. Talton was found to have at the time
       of her visit to Broadlawns.

            Cartilage damage, on the other hand is insidious and hyaline does not
       regenerate but rather produces a fibrocartilage replacement of sorts which
       in reality is the development of traumatic osteoarthritis or degenerative
       joint disease. This is the process that has occurred in Ms. Talton’s left first
       MTPJ and there can be no doubt that it is directly related to the April 17,
       2007 injury.

(Ex. 1, pp. 13-14)


       Dr. Mandracchia recommended that claimant walk only short distances,
take frequent breaks to rest her big toe joint and continue to work only four to five
hours per day, no more than four days per week. He did not believe she was at
maximum medical improvement, although he stated that under the AMA Guides
to the Evaluation of Permanent Impairment, 4th Edition, she had 13 percent
whole person, 14 percent lower extremity; 20 percent foot impairment under the
tables regarding the toes and lower limb. (Ex. 1, p. 14)

      Dr. Mandracchia's causation opinion is well expressed. Unfortunately, is
inconsistent with the medical evidence in its entirety, which indicates that
TALTON V. FLEUR DE LIS MOTOR INNS, INC.
Page 13


claimant's degenerative arthritis in her left great toe was present before the April
17, 2007 work injury. The arthritis was present on the April 27, 2007 x-rays, that
is, ten days after the injury. Arthritis is a degenerative long-term process.
Therefore, one would expect demonstrated progression in the degenerative
condition from that seen on the April 27, 2007 x-ray through all the later
radiographic studies, if the injury had caused or further lighted up claimant’s
great toe joint arthritis. No such progression is reported.

       Likewise, if claimant had cartilage damage related to the April 17, 2007
work injury, one would have expected it to have been observed and
professionally noted in the operative report when the internal structure of left
great toe was visually examined during the January 2009 surgery. Cartilage
damage was not recorded as then apparent. Indeed, the operative note
expressly states there then was no cartilage damage. For that reason, little
weight can be given to the causation opinions of doctors Mandracchia and Mandi
as their own contemporaneous medical treatment notes and records are not
consistent with their later causation opinions

        On the other hand, Dr. Barp's opinion that claimant's big toe arthritis was
not related to the April 17, 2007 work injury is entitled to greater weight, as it is
consistent with the overall medical evidence related to the left great toe. That
opinion and the overall medical record support findings that claimant’s April 17,
2007 injury produced a left fractured sesamoid that healed successfully; and that
claimant reaching maximum medical improvement as to that condition on or
before November 20, 2007 with neither permanent impairment nor permanent
restrictions.

        Claimant has had low back and right knee complaints, which physicians
relate in part to her altered gait from wearing a CAM boot on her left foot.
Claimant wore the boot long after she had been medically advised to discontinue
wearing it and long after her work injury related sesamoid fracture had healed.
For that reason, those complaints and the medical care received for them cannot
fairly be found to relate to the April 17, 2007 injury.

        Claimant testified that after returning to work at the Holiday Inn she did
the same job as before her injury at the same hourly pay. In March 2009 The
Holiday Inn reduced the number of hours available for all employees including
claimant for work in food and beverage events. (Ex. 20, p. 372, Ex. C, int. pp.
15-17) Claimant stated both that she worked less hours because of her foot pain
and that she obtained different employment after all employees’ hours were
reduced in March 2009 because she needed more hours than were available
with the Holiday Inn. These statements, at least in part, are contradictory.

      Claimant was paid $14.50 per hour on April 17, 2007. (Ex. 17, p. 362; Ex. N, p.
1) Pay periods from November 17, 2006 through April 6, 2007 were two weeks long.
TALTON V. FLEUR DE LIS MOTOR INNS, INC.
Page 14


Claimant’s gross earnings in any two week period varied from $893.49 (61.62 hours
worked) to $1,236.37 (78.37 hours). (Ex. 17, pp. 362-364; Ex. N, pp. 1-3) The fewest
hours claimant worked in any pay periods in this time frame were 61.62 hours, 65.38,
and 65.67 hours. (Ex. 17, pp. 363-364; Ex. N, pp. 1-3) The most hours claimant
worked were 75.42, 76.05, and 78.37. (Ex. 17, pp. 362-364; Ex. N, pp. 1-3) Claimant’s
customary hours of work are found to be those worked from January 26, 2007 to April 6,
2007. (Ex. 17, pp. 363-364; Ex. N, pp. 1-3) The average weekly wage is $510.78.
Claimant was single and entitled to one exemption on April 17, 2007. The weekly
compensation rate is $320.48. (Ex. N, p. 1)

        Claimant was paid temporary total disability weekly benefits for various weeks
from April 23, 2007 to November 21, 2007. (Ex. 18, p. 1; Ex. O, p. 3) Claimant did work
for the employer at some times from June through at least November 16, 2007. She
appears to have received temporary total disability at the full appropriate weekly rate
during that time as well for all periods except from August 27, 2007 through October 1,
2007. (Ex. O, p.1)

        Using claimant’s calculations from Exhibit 24, claimant would appear to be
entitled to temporary partial disability benefits of $515.16 minus $45.78 temporary total
benefits paid for August 26, 2007 or net temporary partial disability of $469.38 for the
pay date of September 7, 2007; temporary partial of $360.90 for the pay date of
September 21, 2007; $356.93 minus $137.34 temporary total benefits paid for October
1, 2007 through October 4, 2007 or net temporary partial of $219.59 for the pay date of
October 5, 2007; and; $649.95 minus $640.96 temporary total benefits paid for October
5, 2007 through October 18, 2007 or net temporary partial of $8.99 for the pay date of
October 19, 2007. Claimant is due temporary partial disability in the total amount of
$1058.86 for the period from August 27, 2007 through October 18, 2007.

        The employer and insurer have paid claimant no weekly indemnity benefits after
November 20, 2007. Given Dr. Barp’s opinions that claimant was at maximum medical
improvement without permanent partial impairment or permanent work restrictions as of
that date, no weekly benefits are due but for the above period of temporary partial
disability benefits. (Ex. 33, p. 426)


                                CONCLUSIONS OF LAW

        The first issue to be resolved is whether claimant sustained an injury to the right
leg or low back or both that arose out of and in the course of her employment.

       The party who would suffer loss if an issue were not established has the burden
of proving that issue by a preponderance of the evidence. Iowa R. App. P. 6.14(6).

        The claimant has the burden of proving by a preponderance of the evidence that
the injury is a proximate cause of the disability on which the claim is based. A cause is
TALTON V. FLEUR DE LIS MOTOR INNS, INC.
Page 15


proximate if it is a substantial factor in bringing about the result; it need not be the only
cause. A preponderance of the evidence exists when the causal connection is probable
rather than merely possible. George A. Hormel & Co. v. Jordan, 569 N.W.2d 148 (Iowa
1997); Frye v. Smith-Doyle Contractors, 569 N.W.2d 154 (Iowa App. 1997); Sanchez v.
Blue Bird Midwest, 554 N.W.2d 283 (Iowa App. 1996).

        The question of causal connection is essentially within the domain of expert
testimony. The expert medical evidence must be considered with all other evidence
introduced bearing on the causal connection between the injury and the disability.
Supportive lay testimony may be used to buttress the expert testimony and, therefore, is
also relevant and material to the causation question. The weight to be given to an
expert opinion is determined by the finder of fact and may be affected by the accuracy
of the facts the expert relied upon as well as other surrounding circumstances. The
expert opinion may be accepted or rejected, in whole or in part. St. Luke’s Hosp. v.
Gray, 604 N.W.2d 646 (Iowa 2000); IBP, Inc. v. Harpole, 621 N.W.2d 410 (Iowa 2001);
Dunlavey v. Economy Fire and Cas. Co., 526 N.W.2d 845 (Iowa 1995). Miller v.
Lauridsen Foods, Inc., 525 N.W.2d 417 (Iowa 1994). Unrebutted expert medical
testimony cannot be summarily rejected. Poula v. Siouxland Wall & Ceiling, Inc., 516
N.W.2d 910 (Iowa App. 1994).

        Claimant sustained a stipulated injury to a toe on the left foot. Dr. Kenney has
opined that claimant’s use of the [CAM] boot caused an aggravation of her right knee
osteoarthritis, as doing so altered her weight bearing and gait. Dr. Simon has opined
that claimant’s altered gait aggravated claimant’s pre-existing low back condition.
Claimant wore the boot against medical advice and long after her work related
sesamoid condition had healed. She wore the boot to relieve her great toe
osteoarthritis, a personal degenerative condition that preexisted the April 17, 2007
injury. Therefore, any symptoms in the right knee and the low back are personal to
claimant and not results of the work injury.

      Wherefore, it is concluded that claimant has not established that her back and
knee conditions are a result of the work injury to her great toe.


       The next issue to be resolved is claimant’s gross earnings for purposes of
calculating the rate of compensation.

       Section 85.36 states the basis of compensation is the weekly earnings of the
employee at the time of the injury. The section defines weekly earnings as the gross
salary, wages, or earnings to which an employee would have been entitled had the
employee worked the customary hours for the full pay period in which injured as the
employer regularly required for the work or employment. The various subsections of
section 85.36 set forth methods of computing weekly earnings depending upon the type
of earnings and employment.
TALTON V. FLEUR DE LIS MOTOR INNS, INC.
Page 16


      Claimant’s customary hours of work before the injury ranged from 61.62 hours to
78.37 hours in a two week period. Claimant’s average gross earnings were $510.78.
Her weekly rate of compensation is $320.48.

     The next issue to be resolved is whether the left great toe injury is a cause of
permanent disability.

       The law as to causation is set forth above, except as it relates to preexisting
conditions.

        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).

      The April 17, 2007 work injury resulted in a left foot sesamoid fracture. Claimant
achieved maximum medical improvement from that condition on November 20, 2007
and without any related permanent disability or permanent work restrictions.

      Wherefore, it is concluded that claimant has not established that her April 17,
2007 injury is a cause of claimed permanent partial disability to her left great toe or foot.

        Claimant seeks temporary disability benefits.

        When an injured worker has been unable to work during a period of recuperation
from an injury that did not produce permanent disability, the worker is entitled to
temporary total disability benefits during the time the worker is disabled by the injury.
Those benefits are payable until the employee has returned to work, or is medically
capable of returning to work substantially similar to the work performed at the time of
injury. Section 85.33(1).

      An employee is entitled to appropriate temporary partial disability benefits during
those periods in which the employee is temporarily, partially disabled. An employee is
temporarily, partially disabled when the employee is not capable medically of returning
to employment substantially similar to the employment in which the employee was
engaged at the time of the injury, but is able to perform other work consistent with the
employee's disability. Temporary partial benefits are not payable upon termination of
temporary disability, healing period, or permanent partial disability simply because the
employee is not able to secure work paying weekly earnings equal to the employee's
weekly earnings at the time of the injury. Section 85.33(2).

        Claimant’s work injury related sesamoid fracture did not result in permanent
disability or permanent work restrictions. She achieved maximum medical improvement
TALTON V. FLEUR DE LIS MOTOR INNS, INC.
Page 17


from that condition on November 20, 2007. Defendants paid claimant temporary total
disability weekly benefits for various weeks from April 23, 2007 to November 21, 2007.
Claimant did work for the employer at some times from June through at least November
16, 2007 and received temporary total disability at the full appropriate weekly rate
during that time as well, except from August 27, 2007 through October 1, 2007.

        Wherefore, it is concluded that claimant is entitled to temporary partial disability
in the total amount of $1058.86 for the period from August 27, 2007 through October 18,
2007 and as fully set forth in the above findings of fact and analysis.

      Next addressed is whether claimant is entitled to the alternate medical care she
seeks, namely treatment and surgery by Dr. Mandi and Dr. Mandracchia or both.

       The employer shall furnish reasonable surgical, medical, dental, osteopathic,
chiropractic, podiatric, physical rehabilitation, nursing, ambulance, and hospital services
and supplies for all conditions compensable under the workers' compensation law. The
employer shall also allow reasonable and necessary transportation expenses incurred
for those services. The employer has the right to choose the provider of care, except
where the employer has denied liability for the injury. Section 85.27. Holbert v.
Townsend Engineering Co., Thirty-second Biennial Report of the Industrial
Commissioner 78 (Review-Reopening October 1975).

       Iowa Code section 85.27(4) provides, in relevant part:

            For purposes of this section, the employer is obliged to furnish
       reasonable services and supplies to treat an injured employee, and has
       the right to choose the care. . . . The treatment must be offered promptly
       and be reasonably suited to treat the injury without undue inconvenience
       to the employee. If the employee has reason to be dissatisfied with the
       care offered, the employee should communicate the basis of such
       dissatisfaction to the employer, in writing if requested, following which the
       employer and the employee may agree to alternate care reasonably suited
       to treat the injury. If the employer and employee cannot agree on such

       alternate care, the commissioner may, upon application and reasonable
       proofs of the necessity therefor, allow and order other care.

      Claimant’s left toe stiffness and degenerative joint disease for which she seeks
an exploratory arthroplasty is a personal and not a work injury related condition.
Defendants are not liable for medical treatment for this personal condition.

      Wherefore, it is concluded that claimant is not entitled to the alternate medical
care she seeks.
TALTON V. FLEUR DE LIS MOTOR INNS, INC.
Page 18


        Claimant’s claim for payment of medical costs related to her back and right knee
also fails as those conditions were not established as resulting from her April 17, 2007
injury. Likewise, claimant is not entitled to payment for unauthorized care for her left
foot, as that care was for her personal arthritic condition.

       Claimant seeks penalty benefits related to defendants’ failure to pay weekly
benefits beyond November 21, 2007. As claimant reached maximum medical
improvement on November 20, 2007 without permanent impairment or restriction,
defendants had a reasonable basis for terminating weekly benefits at that time.

      Wherefore, the decision of the deputy is affirmed and modified in part and
reversed in part.


                                        ORDER

      THEREFORE, it is ordered that:

       Defendants pay claimant temporary partial disability benefits in the total amount
of one thousand fifty-eight and 86/100 ($1058.86) for the period from August 27, 2007
through October 18, 2007.

      Defendants shall pay accrued weekly benefits in a lump sum.

      Defendants pay interest as Iowa Code section 85.30 provides.

      Defendants file subsequent reports of injury as this agency requires under rule
876 IAC 3.1(2).

      Defendants shall pay the costs of transcription of the hearing; each party
otherwise shall pay their own costs.

      Signed and filed this 8th day of November, 2011.



                                                ____________________________
                                                   HELENJEAN M. WALLESER
                                                      DEPUTY WORKERS’
                                                COMPENSATION COMMISSIONER
TALTON V. FLEUR DE LIS MOTOR INNS, INC.
Page 19



Copies to:

B. J. Terrones
Dennis L. Hanssen
Attorneys at Law
2700 Grand Avenue, Suite 111
Des Moines, IA 50312
bterrone@hopkinsandhuebner.com
dhanssen@hopkinsandhuebner.com


Chris J. Scheldrup
Charles A. Blades
Attorneys at Law
PO Box 36
Cedar Rapids, IA 52406-0036
cscheldrup@scheldruplaw.com
cblades@scheldruplaw.com

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