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Larry Gallo v. Penford Products Company and Zurich American Insurance

March 13, 2013


Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.

The opinion of the court was delivered by: Mullins, J.

An injured employee appeals from the district court's decision affirming the agency's determination that he suffered a sixty percent loss of earning capacity and the denial of his claim that the work injury caused his depression. AFFIRMED.

Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

We consider whether substantial evidence supports the workers' compensation commissioner's decision that employee Larry Gallo suffered a loss of earning capacity of sixty percent and that his depression was not caused by his work injury. The district court affirmed the commissioner's ruling and so do we.

I. Background Facts

On February 5, 2005, Gallo injured his lower back dislodging a fifty-pound bag of product from a palletizer machine while at work for Penford Products Company (Penford). He treated with Dr. Brady at the St. Luke's Work Well Clinic, was taken off work for one week, and put on Percocet, a narcotic pain reliever. Gallo suffered additional back strains at work on March 8 and March 16, 2005, for which he continued to see Dr. Brady. An MRI showed minor disk bulging. On referral, Dr. Muow determined surgery was not necessary at that time.

In April 2005, Gallo saw Dr. Urbi, a physician in the same clinic as his personal physician, Dr. Boyles. Gallo stated he experienced extreme back pain when he bent over to pick up clothing at home. Dr. Urbi prescribed another painkiller. Four days later Gallo returned to the clinic and saw Dr. Boyles, who prescribed hydrocodone and muscle relaxants.

On May 16, 2005, Gallo again saw Dr. Brady with complaints of worsening symptoms after lifting at work. A senior production manager from Penford had accompanied Gallo to his initial hospital visit two days earlier, apparently concerned because Gallo had just finished his last prescription of Percocet when he reinjured himself in the first half-hour of his shift. An MRI revealed a new right side disk fragment and a herniated disk at L4-L5. On referral, Dr. Mouw assessed Gallo as a surgical candidate and performed a discectomy on May 18, 2005.

Gallo continued to report worsening pain after his surgery. On July 5, 2005, he underwent a trial transforaminal nerve block. That same month Dr. Boyles prescribed Lortab after Gallo claimed he hurt his back moving a refrigerator at home. Approximately one week later, Gallo returned stating he strained his back when he sneezed at home. Dr. Boyles again prescribed Lortab with one refill. On August 5, Gallo saw his wife's physician, Dr. Alberts, claiming Dr. Brady was out of town and he was unable to get a refill of his pain medication. Dr. Alberts prescribed Lortab. On August 10, 2005, Gallo had a second nerve block. On August 22, he returned to Dr. Boyles' office for more pain medication and received another prescription for Lortab.

On or about September 25, 2005, Gallo was arrested for impersonating a physician to obtain prescription pain medication. Both Drs. Boyles and Brady refused to continue treating Gallo after his arrest.

Gallo has a history of drug abuse. He underwent treatment in 1997 for addiction to narcotic pain relievers dating back to 1995. He has also admitted to abusing recreational and prescription drugs including marijuana, morphine, and hydrocodone. After Gallo's arrest, Dr. Brady noted Gallo had specifically asked for Percocet during his first appointment on February 7, 2005. Dr. Brady believed Gallo's addiction to Percocet was likely a problem before that visit.

On October 11, 2005, Gallo checked into the Sedlacek Center for substance abuse treatment. On October 21, 2005, he saw Dr. Alberts for symptoms of depression. Gallo told Dr. Alberts about his drug rehabilitation program. Gallo began taking prescription anxiety medication, an antidepressant, and a sleep aid.

On multiple occasions between March and June 2006, Gallo treated for lower back pain in the Mercy Medical Center emergency room and received prescriptions including Lortab, ibuprofen, and hydrocodone. He did not report his history of prescription medication abuse to Mercy staff and claimed he did not have a family physician, even though Dr. Alberts was treating him at that time.

Gallo continued to work at Penford in a light capacity until January 21, 2007. He worked approximately fifty-six hours per week. On January 22, 2007, Penford terminated Gallo's employment upon discovering his criminal conviction for impersonating a physician to obtain prescription medications ...

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