File Number: 5030254

Claimant	Employer/Defendant	Insurance Carrier
ANTHONY HUFFORD	NOVEL HOMES, INC.

Summary

Decision:

The petition is based on an alleged injury date of April 1, 2009. A default was entered against defendant employer on September 14, 2009, based on defendant’s failure to file an answer or otherwise respond to claimant’s petition. The matter came on for hearing on December 7, 2009, upon submission of written evidence and affidavit from the claimant. The record consists of claimant’s sworn affidavit, and exhibits A, B and C.

Whether claimant was an employee of defendant employer.

Whether claimant suffered an injury arising out of and in the course of his employment on April 1, 2009.

Whether claimant’s current condition is causally connected to the alleged work injury.

Whether claimant is entitled to certain temporary weekly benefits.

The extent of claimant’s entitlement to permanent partial disability benefits.

Whether claimant is entitled to medical benefits; and

The correct weekly rate of compensation.

According to his sworn affidavit, at the time of the hearing the claimant was 22 years old. The claimant completed high school as well as two courses in construction from a community college.

Claimant has worked in his father’s construction business since the age of 14, working with framing and trimming. He began working for defendant employer Shane Torres of Novel Homes, Inc., in January 2008. Claimant worked there for a year and a half. After that he went into business with his brother, forming M&T Construction. Claimant currently works for M&T.

While working for Novel Homes, Inc., on April 1, 2009, claimant sustained an injury. He was doing trim work on a door casing. Claimant was working with a nail gun on his tool belt when the nail gun accidentally discharged, sending a two inch nail into claimant’s left knee and injuring the left popliteal artery.

Claimant sought medical attention immediately. Scott Farber, M.D., performed exploratory surgery on April 1, 2009, but he was unable to locate the nail. On April 9, 2009, Woosup M. Park, M.D., a vascular surgeon, performed another surgical procedure and removed the nail. (Exhibit A)

Claimant was off work for eight weeks. Defendant employer did not pay any workers’ compensation temporary disability benefits.

Claimant also incurred $18,091.22 in medical bills. Defendant employer also did not pay any of these bills. (Ex. B)

On the date of injury claimant was paid $16.00 per hour, working 40 hours per week. He was single with no children. Claimant submits a proposed rate of $395.18, based on average weekly wages of $640.00. (Ex. C)

Today, claimant continues to suffer numbness in his left leg, extending from his knee down to his ankle. He takes over-the-counter pain medication. He was not given an impairment rating. He does not have any permanent work restrictions.

Claimant has testified he worked for Novel Homes, Inc., doing construction work. There is no contrary evidence in the record. It is found claimant was an employee of Novel Homes, Inc., on April 1, 2009.

The next issue is whether claimant suffered an injury arising out of and in the course of his employment on April 1, 2009.

The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it both arose out of and in the course of the employment. Quaker Oats Co. v. Ciha, 552 N.W.2d 143 (Iowa 1996); Miedema v. Dial Corp., 551 N.W.2d 309 (Iowa 1996). The words “arising out of” referred to the cause or source of the injury. The words “in the course of” refer to the time, place, and circumstances of the injury. 2800 Corp. v. Fernandez, 528 N.W.2d 124 (Iowa 1995). An injury arises out of the employment when a causal relationship exists between the injury and the employment. Miedema, 551 N.W.2d 309. The injury must be a rational consequence of a hazard connected with the employment and not merely incidental to the employment. Koehler Elec. v. Wills, 608 N.W.2d 1 (Iowa 2000); Miedema, 551 N.W.2d 309. An injury occurs “in the course of” employment when it happens within a period of employment at a place where the employee reasonably may be when performing employment duties and while the employee is fulfilling those duties or doing an activity incidental to them. Ciha, 552 N.W.2d 143.

Claimant’s testimony was that he was working at his regular job duties on April 1, 2009, when his nail gun accidentally discharged into his knee. There is no contrary evidence in the record. It is found claimant sustained an injury arising out of and in the course of his employment on April 1, 2009.

The next issue is whether claimant’s current condition is causally connected to the alleged work injury.

The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Supportive lay testimony may be used to buttress the expert testimony and, therefore, is also relevant and material to the causation question. The weight to be given to an expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts the expert relied upon as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. St. Luke’s Hosp. v. Gray, 604 N.W.2d 646 (Iowa 2000); IBP, Inc. v. Harpole, 621 N.W.2d 410 (Iowa 2001); Dunlavey v. Economy Fire and Cas. Co., 526 N.W.2d 845 (Iowa 1995). Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417 (Iowa 1994). Unrebutted expert medical testimony cannot be summarily rejected. Poula v. Siouxland Wall & Ceiling, Inc., 516 N.W.2d 910 (Iowa App. 1994).

All of claimant’s symptoms immediately followed his work injury, and did not exist before the work injury. Claimant did not have numbness or pain in his knee before the work injury. There is no evidence in the record that his current knee condition is caused by anything other than his work injury. It is found claimant’s current knee condition is casually connected to his work injury.

The next issue is whether claimant is entitled to certain temporary weekly benefits.

Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, Iowa App. 312 N.W.2d 60 (1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).

Claimant testified he was off work eight weeks as a result of his work injury. Again, there is no contrary evidence in the record. This period of time is consistent with other cases where surgery is performed. It is found claimant has carried his burden of proof to show entitlement to healing period benefits from April 1, 2009, to June 1, 2009.

The next issue is the extent of claimant’s entitlement to permanent partial disability benefits.

Under the Iowa Workers' Compensation Act permanent partial disability is categorized as either to a scheduled member or to the body as a whole. See section 85.34(2). Section 85.34(2)(a)-(t) sets forth specific scheduled injuries and compensation payable for those injuries. The extent of scheduled member disability benefits to which an injured worker is entitled is determined by using the functional method. Functional disability is "limited to the loss of the physiological capacity of the body or body part." Mortimer v. Fruehauf Corp., 502 N.W.2d 12, 15 (Iowa 1993); Sherman v. Pella Corp., 576 N.W.2d 312 (Iowa 1998). Compensation for scheduled injuries is not related to earning capacity. The fact-finder must consider both medical and lay evidence relating to the extent of the functional loss in determining permanent disability resulting from an injury to a scheduled member. Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 272-273 (Iowa 1995); Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417, 420 (Iowa 1994).

Claimant’s injury is to his left knee. There is no medical evidence indicating the injury extends beyond the leg to the body as a whole. Claimant has therefore suffered a scheduled member injury to the leg.

However, there is no rating of permanent impairment in the record on which to base an award of permanent partial disability benefits. The undersigned has only claimant’s description of his pain, tingling and numbness in his leg to rely on.

Based on the record, it is found claimant has a permanent partial impairment of 40 percent of the left leg.

The next issue is whether claimant is entitled to medical benefits.

The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance, and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-Reopening October 16, 1975).

Claimant has submitted his unpaid medical bills in Exhibit B. They total $18,091.22. He has stated these bills are all causally related to his work injury. Once more there is no contrary evidence in the record. It is found that claimant is entitled to payment of his medical bills by the defendant employer.

The next issue is the correct weekly rate of compensation.

Claimant has testified he was a full-time employee, working 40 hours per week at $16.00 per hour. He was single and had no dependents on the date of injury. Again, there is no contrary evidence in the record. Claimant’s calculation of his weekly rate is found to be correct.

Defendant shall pay unto the claimant healing period benefits from April 1, 2009 for eight (8) weeks, at the rate of three hundred ninety-five and 18/100 dollars ($395.18) per week.

Defendant shall pay unto the claimant one hundred (100) weeks of permanent partial disability benefits at the rate of three hundred ninety-five and 18/100 dollars ($395.18) per week from June 1, 2009.

Defendant shall pay accrued weekly benefits in a lump sum.

Defendant shall pay interest on unpaid weekly benefits awarded herein as set forth in Iowa Code section 85.30.

Defendant shall pay the claimant’s prior medical expenses submitted by claimant at the hearing.

Defendant shall pay the future medical expenses of the claimant necessitated by the work injury.

Defendant shall file subsequent reports of injury as required by this agency pursuant to rule 876 IAC 3.1(2).

Costs are taxed to defendant.

Signed and filed this _____27^th______ day of January, 2010.

Copies To:

Mark S. Pennington
Attorney at Law
604 Locust St., Ste. 618
Des Moines, IA 50309-3719
mark@kutmusandpennington.com