Larson Mfg. Co., Inc. v. Thorson

• Decision Date: 13 February 2009
• Docket Number: No. 06-1954.,06-1954.
• Citation: 763 N.W.2d 842
• Parties: LARSON MANUFACTURING COMPANY, INC., and Atlantic Mutual Companies, Appellants, v. Julie THORSON, Appellee.
• Court: Iowa Supreme Court

763 N.W.2d 842

LARSON MANUFACTURING COMPANY, INC., and Atlantic Mutual Companies, Appellants, v. Julie THORSON, Appellee.

No. 06-1954.

Supreme Court of Iowa.

February 13, 2009.

Rehearing Denied April 21, 2009.

Jeffrey W. Lanz of Huber, Book, Cortese, Happe & Lanz, P.L.C., West Des Moines, for appellants.

Mark S. Soldat of Soldat & Parrish-Sams, P.L.C., West Des Moines, for appellee.

HECHT, Justice.

We reversed and remanded this case to the workers' compensation commissioner in Thorson v. Larson Mfg. Co., 682 N.W.2d 448, 451 (Iowa 2004).¹ After the parties submitted additional evidence on remand, the commissioner found Thorson sustained a compensable cumulative injury, and ordered the employer and its insurance carrier to pay compensation, interest, medical expenses, and the cost of a medical examination under Iowa Code section 85.39 (2005). On judicial review, the district court affirmed the commissioner's remand decision. We affirm in part and reverse in part the commissioner's decision.

I. Factual and Procedural Background.

Julie Thorson began working for Larson Manufacturing Company, Inc.,² a storm door manufacturer in Lake Mills, Iowa in 1974. Her job duties evolved over the years, but consistently involved continuous, repetitive movement and occasionally required overhead work. For approximately the first twenty years of her employment, Thorson's job duties required her to perform the same repetitive physical tasks for eight hours each day. In 1995 or 1996, Larson implemented a job rotation program which allowed employees to change their work station each day. The program was later modified to allow Thorson and other employees to change stations after each half-day of work.

Thorson first sought treatment for neck and shoulder pain in 1986 from Dr. Ronald Masters, a chiropractor, who offered a free clinic for patients. Thorson discontinued chiropractic treatments after four months however, when free services were no longer offered because her health insurance did not provide coverage for chiropractic care.

Thorson next received relevant medical care in August 1992 when Larson referred her to Dr. Colby, a family physician, for diagnosis and treatment of shoulder and wrist symptoms. Dr. Colby diagnosed lateral epicondylitis, and placed Thorson on light duty until October 28, 1992, when she was released to full duty with no physician-imposed physical restrictions.

Thorson again consulted Dr. Colby for work-related pain on April 26, 1996. Thorson reported she had been experiencing "knots" in her lower back, shoulders, and elbows for the past eighteen months. Dr. Colby diagnosed back spasms and medial epicondylitis, and again placed Thorson on light duty. Although Thorson was informed no real light duty jobs were available, Larson did assign her to a job requiring less exertion than her usual work assignments. Dr. Colby referred Thorson to Dr. Toth for physical therapy in July 1996.

Dr. Toth diagnosed chronic cervical and thoracic spine strain with somatic dysfunction, and recommended Thorson continue light duty restrictions with minimal overhead work and less frequent rotating movement. He noted it was difficult for Thorson to work within her physical restrictions, apparently referring to the unavailability of light-duty jobs at Larson's plant. Thorson experienced modest improvement of her condition at times from the physical therapy.

On November 25, 1996, after completing the therapy under Dr. Toth's care, Thorson was transferred from Larson's sub-assembly department to the door line. Although this transfer decreased the work-related stress on her back and shoulders, Thorson continued to receive treatment from Dr. Colby for thoracic and cervical spasm, bilateral tendonitis, and lateral epicondylitis during the interval between November 1996 and April 1998.

In May 1998, Thorson began receiving treatment from Dr. Clarence Carlson, who ordered a functional capacity evaluation and recommended a psychiatric consultation to rule out any underlying mental disorder. The functional capacity evaluation performed on July 8 and 9, 1998 documented Thorson's difficulty with overhead lifts and sustained overhead work due to pain. The evaluator recommended frequent rest breaks during sustained overhead activities and work-station accommodations to avoid the need for floor-to-waist level lifting.

On July 13, 1998, Thorson underwent a psychiatric evaluation by Dr. Karen Gosen. Dr. Gosen diagnosed major depression "with sleep, appetite, energy, and mood changes," and "chronic pain syndrome." In August 1998, Dr. Carlson informed Thorson he believed she had fibromyalgia, and that she might benefit from chronic pain management.

The only documented medical treatment Thorson received between August 1998 and May 1999 was for an injury to her right knee sustained during the functional capacity evaluation in July 1998.³

Thorson again consulted Dr. Colby for back spasms in May 1999. On July 23, 1999, Thorson filed two petitions for workers' compensation benefits. The first petition alleged the July 1998 right leg injury. The second petition alleged Thorson was disabled at "various times" from 1993 to 1999, and that she sustained a cumulative injury to her upper back, neck, shoulders, and arms "on or about July 20, 1999."⁴

Thorson returned to Dr. Carlson for treatment in January 2000. She described the pain in her neck, upper thoracic spine, shoulders, and arms as essentially unchanged, but reported increased symptoms in her elbows. Dr. Carlson concluded Thorson was experiencing "low grade bilateral epicondylitis," which he characterized as "an acute/new problem." Dr. Carlson referred Thorson to Dr. Jeffrey Brault, who had experience in the treatment of chronic musculoskeletal and chronic pain disorders. Dr. Brault diagnosed "chronic myalgic pain syndrome" in February 2000, prescribed an antidepressant, ordered physical therapy for the shoulder and neck symptoms, and directed a continuation of Thorson's work restrictions.

Prior to the arbitration hearing on her petitions for workers' compensation benefits, Thorson underwent a medical exam by Dr. Justin Ban.⁵ Dr. Ban diagnosed multiple work-related injuries: a surgically treated right medial meniscal tear, cumulative trauma disorder, chronic cervicothoracic strain/sprain, and chronic pain disorder. His report dated October 10, 2000 opined Thorson's injuries caused a total whole-person work related impairment of sixteen percent, consisting of five percent for the cervicothoracic spine condition, one percent for the right knee, and ten percent for the "chronic pain disorder associated with psychological factors and cumulative trauma disorder."⁶ As we have already noted, Dr. Ban's report (the only extant medical opinion providing a permanent impairment rating of Thorson's claimed cumulative injury prior to the arbitration hearing) was excluded from evidence by the deputy, but this court ordered the agency to consider Dr. Ban's opinion on remand.

Larson sought and obtained leave of the commissioner on remand to develop and present medical evidence rebutting the opinions of Dr. Ban. This evidence included a January 2005 report from Dr. Donna Bahls, a board certified independent medical examiner. Dr. Bahls opined Thorson experienced "chronic myofascial pain which is diffuse but [incompatible with] the criteria for myofascial pain syndrome or fibromyalgia." Although Dr. Bahls believed work activities "could temporarily aggravate or cause [the] underlying condition to be more symptomatic," she concluded work activities were not the cause of Thorson's condition. Dr. Bahls opined Thorson suffered no work-related whole body impairment.

To rebut Dr. Ban's finding of psychological impairment, Larson also offered on remand a January 2005 medical report authored by Dr. Charles Wadle, a psychiatrist. Dr. Wadle opined there was "no discernable psychiatric diagnosis for [Thorson] at this time," and therefore disputed Dr. Ban's impairment rating.

As Dr. Ban's October 2000 opinion was quite dated by the time of the commissioner's remand proceeding, Thorson also sought to present new medical evidence for the agency's consideration. She underwent an examination by Dr. John Kuhnlein in March 2005. Dr. Kuhnlein diagnosed chronic trapezius and scapulothoracic pain, and attributed a three percent whole-body permanent impairment to it. He concluded work activities were a substantial, but not necessarily the exclusive cause of Thorson's chronic pain and resulting impairment. Dr. Kuhnlein also allocated one percent whole-body permanent impairment to the right knee injury, but found no causal connection between Thorson's work activities and her shoulder, foot, and low-back complaints. Thorson requested the commissioner to order Larson to pay for the Kuhnlein examination under Iowa Code section 85.39.

In his remand decision, the commissioner found Thorson sustained a work-related cumulative injury on April 26, 1996, the date Thorson returned to Dr. Colby for treatment of her shoulder, back, and elbow pain.⁷ The commissioner concluded Thorson's claims were not barred by the two-year statute of limitations because Thorson did not know, nor should she have known, the conditions would have a permanent adverse impact on her employment until she received Dr. Ban's report in 2000. The remand decision ordered Larson to pay medical and transportation benefits, temporary partial benefits for the periods of August 31, 1992 through September 22, 1992; October 2, 1992 through October 12, 1992; April 26, 1996 through January 2, 1997; and April 9, 1998 through December 21, 1998,⁸ and permanent partial disability benefits compensating for an industrial disability of twenty-five percent. In addition to the other relief granted, the remand decision ordered Larson to reimburse Thorson pursuant to Iowa Code section 85.39 for the full cost of Dr. Kuhnlein's medical evaluation.

Thorson requested a rehearing....