Evenson v. Winnebago Indus., Inc.

• Decision Date: 03 June 2016
• Docket Number: No. 14–2097.,14–2097.
• Citation: 881 N.W.2d 360
• Parties: David Lowell EVENSON, Appellant, v. WINNEBAGO INDUSTRIES, INC. and Sentry Insurance Company, Appellees.
• Court: Iowa Supreme Court

881 N.W.2d 360

David Lowell EVENSON, Appellant,

v.WINNEBAGO INDUSTRIES, INC. and Sentry Insurance Company, Appellees.

No. 14–2097.

Supreme Court of Iowa.

June 3, 2016.

Rehearing Denied July 13, 2016.

Mark S. Soldat of Soldat, Parrish–Sams & Gustafson, PLC, West Des Moines, for appellant.

Steven T. Durick and Joseph M. Barron of Peddicord, Wharton, Spencer, Hook, Barron & Wegman, LLP, West Des Moines, for appellee.

ZAGER

, Justice.

In this appeal, we are asked to decide whether an employer's matching contributions to an employee's 401k plan should be considered part of weekly earnings for purposes of calculating workers' compensation weekly benefits. We must also decide whether the district court erred in affirming the workers' compensation commissioner's decision on the amount of healing period benefits owed, the extent of permanent disability, and the penalty to be awarded. For the reasons stated below, we conclude that an employer's matching contributions to an employee's 401k plan are not weekly earnings for purposes of calculating workers' compensation weekly benefits. We also conclude the district court did not err in affirming the decision of the commissioner with respect to the extent of permanent disability. However, we hold that the district court erred in affirming the date when healing period benefits commenced, the date when the healing period benefits ended, and the date when permanent partial disability (PPD) benefits commenced. We therefore affirm in part and reverse in part the judgment of the district court. We remand the case to the district court with the following instructions on judicial review: (1) to affirm the commissioner's findings as to the weekly benefit rate and the extent of permanent partial disability and (2) to remand the case to the commissioner for a redetermination of the date when healing period benefits commenced in September 2010, for a redetermination of the date when healing period benefits ended and PPD benefits commenced, and for a recalculation of penalty and interest benefits based on the above dates.

I. Background Facts and Proceedings.

David Evenson began working at Winnebago Industries, Inc. in 1987 to supplement his income from farming. On May 18, 2010, while employed at Winnebago, Evenson sustained an injury to his left elbow. Evenson was an hourly employee at the time of his injury. On May 27, Evenson sought treatment for pain in his left elbow. He was seen by James McGuire, PA–C. Evenson reported that the pain in his left elbow started after he was stacking aluminum running boards as part of his job duties. Evenson was diagnosed with left elbow medial epicondylitis

. He was provided a brace and advised to avoid lifting running boards until his next appointment. At his next appointment, Evenson reported the pain condition had improved and that he was still working his regular job. At his follow-up appointment on June 10, Evenson reported that his left elbow was sore because he had been doing extra work at Winnebago and working overtime. Although Evenson had full range of motion in his left arm, McGuire restricted him to working eight-hour days, five days per week.

Evenson was also treated by Dr. Carlson. Evenson received a cortisone injection in his left elbow on June 25, and he reported that it reduced his pain significantly. At his follow-up appointment with McGuire, Evenson was told he could continue with his work duties at eight hours per day. At the next appointment, Evenson reported more discomfort with heavy lifting and gripping, but also reported that he had been working ten-hour days. On August 17, Evenson reported he was experiencing more pain in his left elbow while working overtime.

On September 3, Evenson received a second cortisone injection from Dr. Carlson. On the same day, he was also given work restrictions and told not to use his left arm for two weeks. Evenson claims that September 3 is the date when he stopped working, while Winnebago asserts that September 7 is the date that he stopped working. Dr. Carlson made notations on the Winnebago form following the cortisone injection on September 3 that stated: “OFF 13^oo 9–3–10 ... can't accommodate—will give vac. for remainder of day if he chooses or 98 WI—wants Holiday pay so plans to use vac.” Winnebago's records show that Evenson took one hour of vacation pay on September 3 and that there was a plant shut down on the same day for one-half hour. Evenson was also paid eight hours of holiday pay on September 6 for Labor Day. The records indicate no other vacation pay during the time period between September 3 and September 6.

On September 7, Evenson had a follow-up appointment with McGuire. McGuire noted some improvement in the left elbow and advised Evenson to avoid tight gripping and heavy lifting with his left arm. McGuire's office notations from the appointment state that Evenson “was told that there is really no light duty in his work area. His supervisor wanted to know if there is some other alternative to this; otherwise, he will have to be off work.” The notation goes on to say that Evenson “should be off work for another ten days as long as they do not have any light duty for the patient.” (Emphasis added.)

Evenson was eventually referred to Dr. Gibbons, an orthopedic surgeon. On October 5, after his examination of Evenson, Dr. Gibbons gave Evenson work restrictions to only lift up to twenty pounds continuously; to push, pull, or lift with his left arm only occasionally; and to avoid repetitive tasks. At a follow-up appointment, Evenson reported that his symptoms were worsening. Dr. Gibbons restricted Evenson to lifting ten pounds continuously and twenty pounds occasionally, and directed him not to push/pull or handle/grip with his left arm. Dr. Gibbons lifted these restrictions on January 27, 2011, and Evenson was released to return to his regular duties. Dr. Gibbons reported that Evenson was at maximum medical improvement (MMI) at that time. He also noted that he had no impairment rating for Evenson because Evenson retained the full range of motion in his left elbow.

On September 14, 2011, Evenson filed a petition seeking workers' compensation benefits related to the injury to his left elbow. Sentry Insurance Company was the workers' compensation insurer for Winnebago.¹

In February 2012, Evenson was again seen by McGuire. At this appointment, Evenson complained that he was still having elbow pain and reported numbness and tingling radiating down his arm into the left small and ring fingers. McGuire ordered nerve conduction studies

on the left elbow and advised Evenson to limit left hand gripping. The studies showed ulnar neuropathy in Evenson's left elbow and asymptomatic mild median neuropathy in Evenson's left wrist.

Evenson was later treated by Dr. Yanish, another orthopedist. On March 4, Dr. Yanish diagnosed left medial epicondylitis

and ulnar nerve impingement. An MRI showed some tendinopathy.

At the request of his attorney, Evenson obtained an independent medical examination and evaluation (IME) from Dr. Kuhnlein in March 2012. The IME addressed not only the nature and extent of the injury to Evenson's left elbow, but also addressed several other body parts and conditions that were separately relevant to his claim against the Second Injury Fund.²

Dr. Yanish performed surgery on Evenson's left elbow on April 14, after which Evenson underwent physical therapy. Dr. Yanish kept Evenson off work until May 2, but noted that Evenson could not use his left arm upon return to work. On June 10, Evenson reported his pain had improved and he was not experiencing any further numbness or tingling. Dr. Yanish restricted Evenson to not lifting anything over ten pounds with his left arm. In early August, Dr. Yanish changed Evenson's restrictions to not lifting more than twenty pounds with his left arm. Dr. Yanish also found an improved range of motion in Evenson's left elbow. On August 31, Dr. Yanish changed Evenson's restrictions to only occasionally lifting forty pounds, lifting up to twenty pounds repetitively, and only occasionally lifting up to twenty pounds above shoulder level. On October 7, Dr. Yanish released Evenson from treatment and restricted him to no lifting over twenty pounds and no lifting over his shoulder.

A contested hearing was held on July 6, 2012. Both Dr. Yanish and Dr. Kuhnlein offered opinions. Dr. Yanish allocated a four percent permanent impairment to Evenson's left arm and recommended that Evenson restrict lifting, pushing, and pulling with that arm to twenty pounds. Dr. Kuhnlein rated Evenson's permanent arm impairment at three percent and selected June 7, 2011, as the date when Evenson reached MMI.

Some of Evenson's family members testified—over objection—about their observations of his use of his left arm after the injury. Evenson's wife testified that he has difficulty with certain tasks and estimated that he lost sixty percent of the use of his left arm. Evenson's father, his father-in-law, and his sister-in-law testified that he has lost some use of his left arm. They estimated, respectively, that Evenson lost sixty percent, eighty percent, or fifty-five percent of the function of his left arm.

Evenson also testified regarding the effect of the loss of use of his left elbow to his home life and hobbies. Although he continues to farm, he has scaled back his activities significantly and relies on his family's help. Evenson testified that he is no longer able to steer his farming machinery with his left arm because it is painful and he has trouble gripping the wheel. He is no longer able to care for his horses. Evenson previously broke his horses to ride, but he is no longer able to do so because he cannot properly grip a rope in his left hand. Evenson's wife is now responsible for taking care of the horses. Evenson is no longer able to climb ladders on his farm. Due to his left elbow pain, Evenson stated that he is no longer able to ride his snowmobile or his four-wheeler....