Mycogen Seeds v. Sands

• Decision Date: 11 August 2004
• Docket Number: No. 03-0331.,03-0331.
• Citation: 686 N.W.2d 457
• Parties: MYCOGEN SEEDS, Employer and Ace USA, Insurer in Novation for Reliance National Indemnity, Appellees, v. Larry SANDS, Appellant, and Dow Chemical, Employer and CNA Insurance, a/k/a Continental Casualty Company.
• Court: Iowa Supreme Court

686 N.W.2d 457

MYCOGEN SEEDS, Employer and Ace USA, Insurer in Novation for Reliance National Indemnity, Appellees, v. Larry SANDS, Appellant, and Dow Chemical, Employer and CNA Insurance, a/k/a Continental Casualty Company.

No. 03-0331.

Supreme Court of Iowa.

August 11, 2004.

Rehearing Denied September 21, 2004.

Dennis J. Mahr, Sioux City, for appellant.

Joseph A. Cacciatore of Dickinson, Mackaman, Tyler & Hagen, P.C., Des Moines, and Nathan R. McConkey of Huber, Book, Cortese, Happe & Lanz, P.L.C., Des Moines, for appellees.

LAVORATO, Chief Justice.

In this workers' compensation proceeding involving two successive work-related injuries, the employee, Larry Sands, appeals from a district court judgment affirming the interim commissioner's (commissioner) decision. Sands contends the commissioner and district court erred in applying Iowa's apportionment statute, refusing to abide by the parties' stipulation for the commencement date of permanent partial disability payments for the first injury, denying Sands his spouse's lost wages caused by her transportation of him for medical treatment, and failing to award him penalty benefits.

The employer, Mycogen Seeds, and its insurer on the first injury, ACE USA, cross-appeal to preserve their claim that Sands should not receive double disability payments in the event apportionment does not apply.

We affirm the district court judgment affirming the commissioner's decision on the issues concerning apportionment, the parties' stipulation, and penalty benefits. We reverse the district court's judgment affirming the commissioner's decision on the lost wages claim. We remand for further proceedings on this claim.

Because of the result we reach on the apportionment issue, we do not address the cross-appeal.

I. Background Facts.

At the time of the arbitration hearing, Sands was fifty-five years old. He is a high school graduate, but was a below average student. Recent testing showed that he had a full scale I.Q. of only seventy-four. His reading skills were at the seventh grade level.

Following his graduation from high school in 1964, Sands had held such jobs as an assembly line worker, a car jockey for a car dealership, a mechanic, and a farmer. These jobs required heavy lifting of up to fifty to seventy-five pounds at times.

In 1972 Sands began working for hybrid seed companies and continued in that work until 1997. He has worked for various companies during this time as a district sales manager. His job duties consisted of harvesting seed, working with dealers who sold seed, and delivering seed to dealers and customers. These duties required Sands to lift seed bags that weighed from twenty-eight pounds to sixty-four pounds. He lifted 700 to 900 bags of seed per week and up to 300 bags a day during the busy season.

Sands was paid a base salary plus a bonus if he sold more seed in one year as compared to the previous year. His bonus was also based on early cash receipts, collections, and a low return of seed. From 1972 until 1997, there were only two years that Sands did not receive a bonus, and that was either because of weather conditions or a poor farm economy. The largest bonus he received in a year was $12,000.

On June 25, 1991, Sands sustained an on-the-job injury to his lower back. At the time he was lifting fifty-pound bags of seed. After receiving treatment for a suspected herniated disk, his doctor released him without restrictions and gave him no functional impairment rating. In 1994 Sands had a flare-up of low-back symptoms for which he received treatment. He eventually recovered.

On May 16, 1995, Sands was working for Keltgen Seeds. On that date, Sands again sustained an on-the-job injury while picking up unused seed from dealers. In picking up the seed bags, he felt pain in his neck and right shoulder. He sought medical attention for the injury from Dr. Wayne Meylor, D.C., who noted that Sands' primary complaints were in his lower neck and shoulder. Several weeks later, Sands complained to Dr. Meylor of low back and hip pain.

Dr. Meylor referred Sands to Dr. Raymond Sherman, M.D. for evaluation. Dr. Sherman saw Sands on September 3, 1996, following which the doctor recommended conservative treatment for the right shoulder symptoms. Dr. Sherman eventually referred Sands to Dr. Barrie Purves, M.D. for evaluation of Sands' upper back and neck pain complaints.

Dr. Purves saw Sands on April 22, 1997. At that time, Sands told Dr. Purves that he had an acute onset of pain in his upper back into his neck as a result of the May 1995 incident. Sands also informed the doctor of his 1991 low-back injury. Following his examination of Sands, Dr. Purves opined that Sands had severe degenerative disk disease at the C5-6 and C6-7 levels. Because Sands had two years of conservative treatment, the doctor thought Sands was a reasonable candidate for a two-level disk fusion. That operation was done on April 28, 1997. Healing period benefits were paid from April 28, 1997 through May 27, 1997, at which time they were terminated.

Following the operation, Dr. Purves allowed Sands to return to light duty work on July 15, 1997, and imposed a maximum lifting restriction of thirty-five pounds.

On returning to work on July 16, 1997, Sands again suffered an on-the-job injury. At the time, Sands was still wearing a neck brace from his surgery. The injury occurred when he ducked under a fence to get into a field to look at seed that his employer was raising. While attempting to duck under the fence, Sands fell backwards onto the ground and suffered a low-back injury. At the time of this injury, Sands was working for a different company, Mycogen Seeds, which was a successor in interest to Keltgen Seeds.

Dr. Meylor saw Sands on July 16, 1997, for this latest injury. At the time, Sands was complaining of right hip and leg pain. Dr. Purves also saw Sands after this latest injury. On November 25, 1997, Dr. Purves suspected a problem with the L5-S1 disk and scheduled an MRI.

In the meantime, Dr. Purves sent Sands to Dr. Sherman for additional evaluation of Sands' right shoulder complaints. Dr. Sherman ordered an MRI, which showed a partial thickness tear of Sands' right rotator cuff. Injections into the shoulder only provided temporary relief.

The MRI for the low-back injury showed a fragment of a sequestrated disk at L4-5. In December 1997 Dr. Purves opined that this was a recurrence of the back problem Sands had suffered in 1991 and that the current low back and right leg symptoms started when Sands was crawling under the fence in July 1997. Dr. Purves operated on Sands' lumbar spine on December 15, 1997, and found that the sequestrated disk had moved away from the disk space and was free of the spinal column. The back operation was done before the shoulder surgery because of fear that Sands might sustain further damage to his back with movement on the operating table for surgery to his shoulder.

Following the operation, Dr. Purves continued to treat Sands but Sands' right leg pain was not significantly reduced. Eventually, Dr. Purves referred Sands to a pain clinic. The pain clinic eventually referred Sands to Dr. Patrick Bowman, M.D. to try dorsal column stimulation. The procedure resulted in no significant improvement. Dr. Bowman concluded the only treatment option available to treat the pain was the installation of an intrathecal morphine pump. On February 26, 1999, Dr. Lyal Leibrock, M.D. installed the pump, which he indicated would remain installed for permanent pain control. The pump was installed because of "failed back surgery syndrome." Dr. Leibrock indicated that Sands was at maximum medical improvement relative to the lumbar spine.

On May 20, 1999, Dr. Sherman operated on Sands' right shoulder to repair Sands' right rotator cuff tear, as well as performing an acromioclavicular joint resection and glenohumeral ligament repair. Dr. Sherman put Sands at maximum medical improvement on December 6, 1999, and released him with lifting restrictions. Dr. Sherman determined that Sands had sustained a fifteen percent, whole person impairment as a result of the shoulder injury. He also determined that the surgery was necessary because of the May 16, 1995 incident.

Dr. Meylor opined that Sands' neck and shoulder injury resulted from the May 16, 1995 incident and that Sands had aggravated a preexisting low back condition as a result of the July 16, 1997 incident.

Dr. Purves stated that the July 16, 1997 incident could have aggravated the preexisting condition relating to the herniated disk and led to the need for surgery.

Dr. Meylor asked Dr. Mark Kruse, D.C. to do an impairment evaluation of Sands. Based on that evaluation, Dr. Kruse's opinion was that Sands' low-back surgery was made necessary because of the July 16, 1997 incident and that the injury resulting from this incident caused an additional impairment to Sands' lumbar spine.

Sands was also seen by Dr. Dean Wampler, M.D. for an evaluation of his condition. After reviewing Sands' records, Dr. Wampler opined that Sands' lumbar spine and right leg condition were not related to the July 16, 1997 incident.

Sands' wife, Patricia, drove to several of his medical appointments when he was unable to drive himself. The parties' hometown of Le Mars has no taxi service. Patricia also needed to attend some of the appointments to learn how to catheterize her husband and help him with pain management. She lost wages of $1274.88 while attending these appointments.

Sands began receiving social security disability benefits effective December 12, 1997, and has not worked since then. On August 12, 1998, Sands' employer notified him that it was eliminating his district as well as his current position.

II. Proceedings.

On May 17, 1999, Sands filed a petition concerning his May 16, 1995 injury before the Iowa workers' compensation commissioner against Mycogen Seeds and Reliance National Indemnity, which is now ACE USA in...