Clark v. Vicorp Restaurants, Inc.

• Decision Date: 20 May 2005
• Docket Number: No. 03-1870.,03-1870.
• Parties: Pam CLARK, Appellant, v. VICORP RESTAURANTS, INC., Employer and Kemper Insurance Company, Insurance Carrier, Appellees.
• Court: Iowa Supreme Court

696 N.W.2d 596

Pam CLARK, Appellant, v. VICORP RESTAURANTS, INC., Employer and Kemper Insurance Company, Insurance Carrier, Appellees.

No. 03-1870.

Supreme Court of Iowa.

May 20, 2005.

Thomas M. Werner, Des Moines, for appellant.

Harry W. Dahl, Des Moines, for appellees.

LAVORATO, Chief Justice.

In an arbitration proceeding, a hearing deputy found that the claimant, Pam Clark, had suffered a temporary total disability as a result of a work-related injury rather than a permanent partial disability as Clark had contended. On Clark's intra-agency appeal, the deputy commissioner affirmed and adopted as final agency action the hearing deputy's decision on this issue. Clark petitioned the district court for judicial review and that court affirmed. Clark appealed, we transferred the case to the court of appeals, and that court reversed and remanded the case for further proceedings. We granted the application for further review filed by the employer and its carrier. On that review, we vacate the court of appeals decision and affirm the district court judgment.

I. Background Facts.

Clark is forty-one years old, married, and has two teenage children. She is a high school graduate and has no further education or training. Since graduating from high school, she has worked in food service, at a dog kennel, for a fishing lure business, in housekeeping at a hospital and a hotel, and as a telemarketer.

Vicorp Restaurants, Inc. hired Clark in November 1989 to work as a part-time cashier/hostess at its Bakers Square restaurant in Des Moines. A few months later she also began working as a waitress at that establishment.

Clark has suffered several work-related injuries while working at Bakers Square. In July 1991 Clark suffered a neck injury while carrying a bus tub. As a result of that injury, Dr. Rodney Johnson performed a surgical anterior interbody fusion at C6-7 in April 1992. Clark was released to work in August 1992 with a twenty-five pound lifting and carrying restriction. Because of this restriction, her supervisors at Bakers Square decided Clark could work only as a cashier/hostess.

In December 1997 Clark was again injured at work. This time a pie transit flipped onto her right shoulder, injuring her neck and shoulder. As a result of those injuries, Dr. Lynn Nelson performed a cervical fusion at C5-6, and Dr. Delwin E. Quenzer performed two surgeries on Clark's shoulder, one in April 1999 and another in November 1999. Clark returned to work at Bakers Square but under doctor's orders was to do no lifting. She answered the phone and took pie orders, working just a few hours per day. In March 2000 Clark was able to resume her full duties as a cashier/hostess, but was told by her doctors to abide by the same twenty-five pound lifting restriction she had been under since her release by Dr. Johnson in August 1992.

On July 7, 2000, Clark sustained an injury at work that is the subject of this appeal. On that day, she was working as a host supervisor. Both restaurant managers were off-duty, and Clark was supervising. Because the restaurant was shorthanded that day, Clark acted as a waitress, cashier, host, and supervisor. While twisting to hand plates to a customer who was sitting on the inside of a booth, Clark felt a pop in her neck. Several minutes later while moving a tub of dishes, glasses, and silverware from a table, Clark twisted and felt a pop in the lower part of her back. She continued working, and a short time later, she started to experience a headache and stiffness and soreness in her neck and back. Despite this discomfort, Clark did complete her shift.

The next day, with the permission of her supervisor, Clark sought treatment at the Iowa Lutheran Hospital emergency department. She complained of neck and back pain and numbness in her arms and legs. The assessment in the emergency department report was "musculoskeletal sprain of the cervical and lumbar spine." X-rays were taken and Clark was given several medications. She was also told to see her family doctor. In addition, she was given a work excuse to return to work on July 12, 2000, with no lifting for two weeks of anything weighing more than ten pounds.

Clark did not return to work on July 12 because a Vicorp risk management representative told her to stay off work until she saw either Dr. Nelson, who had performed her last neck surgery, or Dr. Quenzer, who had performed her two shoulder surgeries. On July 18 Clark saw Dr. Nelson. At the time she still had back pain. Dr. Nelson's impression was "myofascial global back pain." He saw no indication for surgical treatment and recommended evaluation and management of myofascial complaints by a physiatrist as well as physical therapy. Dr. Nelson did not release Clark to return to work. In his deposition taken in April 2002, Dr. Nelson could not state within a reasonable degree of medical certainty that Clark's complaints were a result of the July 7, 2000 incident.

On July 27 Clark saw Dr. Quenzer. At the time, Clark was complaining of numbness in both arms and legs. Dr. Quenzer's impression was "dysesthesias of undetermined etiology." He recommended that Clark see a neurologist to rule out a neurological problem and a physiatrist, if there was no neurological problem, to coordinate her work status and maintenance medical care.

On August 17 in a letter to Kemper Insurance Company, Vicorp's carrier, Dr. Quenzer opined that he was

not aware of any anatomically based diagnosis which would explain [Clark's] current symptom complex. My opinion is that it is not possible to state with a reasonable degree of medical certainty that [my diagnosis of dysesthesias of undetermined etiology] is a result of employment at Vicorp Restaurants.

Dr. Quenzer also stated he had not restricted employment "as a result of the alleged injury of July 7, 2000." Shortly after this letter, the carrier denied Clark's claim for benefits. Following the denial, Clark sought permission from her employer's carrier to go back to work. She was told she would have to get a release from her family doctor to do so. In the meantime, with her employer's permission, Clark went on a medical leave of absence without pay.

Following the carrier's suggestion, Clark saw Dr. Dennis Hopkins, her family doctor, who referred her to Dr. Michael R.K. Jacoby, a neurologist. Dr. Jacoby examined Clark on September 8 and October 11. In his report of November 3 to Dr. Hopkins, Dr. Jacoby ruled out any neurologic cause for her condition. In addition, Dr. Jacoby recommended that Clark see an orthopedic physician.

Acting on Dr. Jacoby's suggestion, Clark saw Dr. Leslie Hillman, a physiatrist with the Iowa Orthopaedic Center, P.C. on November 14. On that date, Dr. Hillman examined Clark and opined that Clark was suffering from "myofascial neck and back pain" and "headaches." Dr. Hillman ordered conservative treatment, including physical therapy.

Following a functional capacity assessment of Clark, Dr. Hillman prescribed work restrictions on December 22. They included a ten-pound lifting restriction with each individual extremity, floor-to-chair lifting of twenty pounds bilaterally with the upper extremities, five-pound individual extremity above shoulder lifting, with avoidance of repetitive kneeling, climbing, and balancing. Dr. Hillman also limited Clark to no more than sixty-minutes of repetitive use of Clark's upper extremities. In addition, the doctor specified that Clark should sit no longer than thirty-minutes at a time and stand no more than thirty-minutes at a time, with breaks.

Meanwhile, on December 11 Vicorp's leave-of-absence coordinator notified Clark by letter that her leave of absence would expire on January 3, 2001 and advising her of the following:

By policy, the maximum amount of time on leave from the company is 180 days. If you are unable to return to work by the above date I will process your termination effective 1/04/01. When you are able to return to work, please contact your General Manager concerning possible re-hire.

Clark enjoyed her job at Bakers Square, wanted to return to work, and believed she could perform her job with these restrictions. She took a copy of Dr. Hillman's restrictions to a Bakers Square manager on December 26. On the same day, Clark called Vicorp's leave-of-absence coordinator and informed the coordinator of the restrictions. Several days later, the coordinator advised Clark by phone that Vicorp had decided against letting Clark return to work.

On January 3, 2001, the Vicorp leave-of-absence coordinator wrote Clark terminating her employment effective January 4, 2001. The letter stated:

Our records reflect that your Leave of Absence has expired as of 1/3/01.

By policy, the maximum amount of your leave from the company is 180 days. Therefore, effective 1/4/01, I processed your termination of employment. When you are able to return to work please contact your General Manager.

Thereafter, Clark's attorney wrote Vicorp several letters requesting her reinstatement. Vicorp responded on January 18 with a job description for a host/hostess and noted "there are significant lifting requirements from which your client has been significantly restricted." Vicorp also noted that Clark's doctor "has identified her restrictions to be temporary in nature." Vicorp concluded:

When your client obtains maximum medical improvement and her medical condition has stabilized for a permanent rating, please let us know. If she is able to meet the essential functions of this job with some type of reasonable accommodation, we will reconsider her for employment. Merely asserting that she need not perform minor bussing responsibilities misses the mark. Bussing is one of the essential functions of her job and, if she is unable to meet the physical requirements necessary, she can propose a reasonable accommodation which we can review.

The job description for the host/hostess includes a list of responsibilities, one of which is...