City of Davenport v. Newcomb, No. 2-032 / 11-1035

CourtCourt of Appeals of Iowa
Writing for the CourtVOGEL
PartiesCITY OF DAVENPORT, Plaintiff-Appellant/Cross-Appellee, v. DICK L. NEWCOMB, Defendant-Appellee/Cross-Appellant.
Docket NumberNo. 2-032 / 11-1035
Decision Date11 April 2012

CITY OF DAVENPORT, Plaintiff-Appellant/Cross-Appellee,
DICK L. NEWCOMB, Defendant-Appellee/Cross-Appellant.

No. 2-032 / 11-1035


Filed April 11, 2012

Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

The City of Davenport appeals from the district court's ruling on judicial review, affirming the award of workers' compensation benefits to former employee Dick Newcomb. Newcomb cross-appeals the denial of penalty benefits under Iowa Code section 86.13 (2007). AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

Craig A. Levien, Peter J. Thill, and Amanda M. Richards of Betty, Neuman & McMahon, P.L.C., Davenport, for appellant/cross-appellee.

Elliott R. McDonald III of McDonald, Woodward & Carlson, P.C., Davenport, for appellee/cross-appellant.

Heard by Vogel, P.J., and Potterfield and Doyle, JJ.

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The City of Davenport appeals from the district court's ruling on judicial review, affirming the award of workers' compensation benefits to former employee, Dick Newcomb. Newcomb cross-appeals the denial of penalty benefits under Iowa Code section 86.13 (2007). We affirm the agency's refusal to take additional testimony from the City's doctor at a follow-up hearing requested by the deputy commissioner to determine the credibility of the claimant and his wife. We also affirm the agency's denial of penalty benefits as Newcomb's claim was "fairly debatable." We, however, reverse and remand as the agency abused its discretion in denying the City's August 7 motion to compel an independent medical examination with Dr. Chad Abernathey under Iowa Rule of Civil Procedure 1.515, and erred in its interpretation of Iowa Code section 85.39. We decline to rule on the remaining issues that may subsequently be affected by our decision to remand. We therefore affirm in part, reverse in part, and remand with directions.

I. Background Facts

Dick Newcomb began working for the City of Davenport in October 2002, at the age of fifty-three, as a plant operator at the sewage treatment plant. The injury at issue in this case occurred on Sunday, December 11, 2005, when Newcomb slipped and fell on ice while performing work-related duties. Newcomb's left hip, as well as both arms, hit the ground. He reported the fall to the lead operator and filed a written report. Newcomb did not think it was necessary go to the hospital as he felt a little bruised and shook up, but wanted to wait and see what happened. Newcomb worked the remaining three or four

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hours of his shift and also worked the second shift on Monday. By Tuesday, Newcomb was experiencing some complications—increased soreness and trouble getting up and sitting down. Newcomb took four hours off work on Tuesday and went home early. On Wednesday, Newcomb left for a scheduled trip to Florida. During his trip, Newcomb continued to have problems. He later described the pain as being "real sharp pain. It came out of the low back into the buttock, and it went under the back side of the thigh of the leg. And it [came] out the calf, right above the ankle." Newcomb self-medicated, using Flexeril and Vicodin—from an existing prescription he had been given to address other joint and muscle pain.

While Newcomb was in Florida, he called the City's nurse and said he needed to see a City doctor when he returned. Newcomb requested to see Rick Garrels, M.D., with whom he had established a good rapport in previous treatment.1 On Dr. Garrels's recommendation, Newcomb attended two weeks of physical therapy, but that did not help to relieve the pain. Newcomb was then given two spinal epidurals, one in February and one in March 2006. In May 2006, Newcomb was still experiencing a great deal of pain. Dr. Garrels noted some tenderness in Newcomb's left lower back and advised Newcomb to return if his symptoms increased.

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By August 2006, there was still no resolution to the pain and Newcomb was taking eight to ten Vicodin a day to manage his pain. On August 6, 2006, Dr. Garrels placed work restrictions on Newcomb, and Newcomb was then assigned light duty at the fire department. On August 14, 2006, Dr. Garrels determined that Newcomb had reached "maximum medical improvement," noting Newcomb "has had improvement and is back to his baseline." Dr. Garrels placed some permanent work restrictions on Newcomb, "for his pre-existing degenerative disk disease state," prohibiting heavy lifting and repetitive bending. On August 24, 2006, human resources sent Newcomb a letter explaining, "The injury you sustained at work was an aggravation of a personal medical condition," and that Dr. Garrels had determined "that the aggravation has been resolved." The letter further stated that due to the work restrictions, Newcomb would be unable to continue with either his regular duties and his modified duties at the fire department without re-aggravating his "existing personal medical condition." Newcomb was advised, "You should begin to use your personal sick leave to account for your hours."

With the news that any further treatment would not be covered, Newcomb began seeing his family doctor, James King, D.O., in September 2006. Newcomb complained of chronic back pain with left leg radiculopathy. Dr. King referred Newcomb to an orthopedic surgeon, Michael Dolphin, D.O., in October 2006. After examining Newcomb, Dr. Dolphin noted, "Based upon [Newcomb's] history as well as the x-ray and MRI today, it would appear that his degenerative disc disease is not the issue with his present complaint." Dr. Dolphin performed surgery on Newcomb's left leg on December 11, 2006.

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Newcomb returned to work for the City in late March 2007 and worked approximately four weeks. A couple weeks into work, Newcomb experienced pain in his left leg, as well as pain in his right buttock that came through the hip and into the right groin area, which then shot down the right knee.

Newcomb was removed from work again and Dr. Dolphin performed another surgery in June 2007. After the second surgery, Newcomb reported positive results on the right side, with much less pain, but the left side remained unchanged. After the second surgery, Newcomb also developed an infection in the wound on the left side, which required yet another surgery. In August 2007, Newcomb suffered a heart attack and underwent surgery to place six stents in his heart vessels.2

Despite the corrective surgeries and physical therapy, Newcomb's pain persisted. The only thing that seemed to alleviate Newcomb's pain was taking pain medications, including OxyContin, Vicodin, and Cymbalta. On September 20, 2007, Dr. Dolphin concluded it would be "difficult for me to recommend that [Newcomb] return to work given his degree of discomfort, pain, and immobility." Dr. Dolphin imposed restrictions including: lifting no greater than twenty pounds, no repetitive bending, twisting, pushing, and pulling, and advising Newcomb be able to change position every hour from sitting to standing. The City terminated Newcomb's employment on September 21, 2007.

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II. Proceedings

On November 1, 2007, Newcomb filed a workers' compensation petition alleging an injury to his lower back on December 11, 2005. The City answered on November 8, denying liability. On February 7, 2008, Newcomb amended his original petition to plead the odd-lot doctrine for his disability, as well as requesting a determination regarding whether he was entitled to permanent total disability benefits. The City filed an answer to the amended petition on May 16, 2008, in which the City admitted the injury but denied causation. On June 23, 2008, the City moved to compel Newcomb to submit to a follow-up examination with Dr. Garrels, pursuant to Iowa Code section 85.39 or Iowa Rule of Civil Procedure 1.515, as Dr. Garrels had not examined Newcomb since August 6, 2006. Newcomb resisted. On July 14, 2008, Larry P. Walshire, Deputy Workers' Compensation Commissioner, denied the City's motion to compel. On July 23, 2008, the City moved to compel an independent medical examination (IME) with Chad Abernathey, M.D., a neurosurgeon in Cedar Rapids. On July 30, 2008, Walshire denied the motion. On August 7, 2008, the City filed a second, supplemented motion to compel an IME with Dr. Abernathey. This motion was deemed denied under Iowa Administrative Code rule 876-4.24, as it was not granted within twenty days of its filing.3

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On January 13, 2009, Newcomb's petition came on for arbitration hearing before Deputy Workers' Compensation Commissioner Vicki Seeck. On April 20, 2009, before a ruling was issued, Newcomb's case was reassigned to Deputy Commissioner Walshire. On May 7, 2009, Walshire, after reviewing the record created at the arbitration hearing, determined he needed to make a credibility assessment of Newcomb and his wife, before ruling on the merits, as there was a "significant conflict" between the Newcombs' testimony and Dr. Garrels's reported history of Newcomb's back pain. As such, he ordered a follow-up or credibility hearing, limited to receiving the Newcombs' testimony. On August 17, 2009, the City filed an application for interlocutory appeal, seeking among other things, the testimony of Dr. Garrels be allowed at the credibility hearing. Newcomb resisted and the commissioner denied the City's interlocutory appeal.

On September 10, 2009, Walshire issued an arbitration decision and ordered the City to pay...

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