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Whirlpool Corp. v. Davis

Court of Appeal of Iowa

July 24, 2013

WHIRLPOOL CORPORATION, Plaintiff-Appellant,
v.
DANNY DAVIS, Defendant-Appellee.

Appeal from the Iowa District Court for Polk County, Brad McCall, Judge.

Whirlpool Corporation appeals the district court's affirmance of the workers' compensation commissioner's award of permanent total disability benefits, medical expenses, and costs to Danny Davis.

Steven T. Durrick and Joseph M. Barron of Peddicord, Wharton, Spencer, Hoolk, Barron & Wegman, L.L.P., West Des Moines, for appellant.

Thomas M. Wertz and Daniel J. Anderson of Wertz & Drake, Cedar Rapids, for appellee.

Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.

POTTERFIELD, J.

Whirlpool Corporation appeals the district court's affirmance of the workers' compensation commissioner's award of permanent total disability benefits, medical expenses, and costs to Danny Davis. We conclude there is substantial evidence supporting the commissioner's findings that Davis's physical and mental conditions are causally related to the April 29, 2008 incident, the extent of Davis's disability; and that some of the medical expenses associated with Dr. Buresh were work-related and reasonable. The district court did not abuse its discretion in denying Whirlpool's motion to stay judgment. However, the agency erred in awarding as costs $330 for expert deposition fee, which fee is statutorily capped at $150. We adjust the costs ordered accordingly, but otherwise affirm.

I. Background Facts and Proceedings.

Danny Davis alleged he sustained a work-related injury on April 29, 2008. At that time, Davis had been employed at Whirlpool for approximately sixteen years.[1] He worked as a coding specialist in the paint department, with his main task being conducting titrations on each of the paint stages. He was required to ensure each product had the right amount of chemical at each stage. As part of that job, he had to maintain sufficient levels of chemicals in the barrels. If everything was running smoothly and no barrels were empty, Davis's job was not physically demanding.

On April 29, 2008, Davis was performing his usual tasks when he discovered that a chromium nitrate drum was empty. The drum weighed several hundred pounds, and to replace it, he needed to roll it off the wooden pallet and onto a hand cart. While he was sliding the drum off the wooden pallet, a board on the pallet broke, which caused the fifty-five-gallon drum to fall. Davis tried to hold onto it to keep it from falling, but the drum began pulling him. Davis's foot caught between two of the slats on the pallet, and when the drum pulled him, he heard a rip in his lower back.

Davis felt severe pain and dizziness. He attempted to sit at a nearby cement wall, but he could not bend to sit. Davis was able to communicate his injury to his supervisor, who called the company nurse. The nurse reported that Davis was "grimacing in pain and shaking." An ambulance arrived. Davis was strapped to a long board and taken to the Mercy Medical Center in Cedar Rapids, where he stayed until approximately midnight.

While at Mercy, Davis described his back injury and records indicate that he had "[m]oderate vertebral point tenderness over the lower lumbar spine" and "[mjoderate muscle spasm present in the lower central lumbar area." However, the physician noticed "[n]o abnormalities of the lumbar spine" and diagnosed his problem as a lumbar strain. Davis received pain medication and was told to apply ice, refrain from lifting and prolonged sitting, and follow up in two days.

Two days later, on May 1, 2008, Davis saw Timothy Momany, M.D., the company doctor for Whirlpool. Dr. Momany treated Davis for his back injury until June of 2009. Initially, Dr. Momany noted "some tenderness over low lumbar back midline to palpation" and diagnosed a low back mechanical strain. On May 5, 2008, he noted that Davis reported feeling twenty percent better, but could not stay at work for the full eight hours, and did not want to sit on the exam table. He saw Davis again on May 20, 2008, and noted "lots of muscular spasm." In June 2008, Whirlpool requested Davis undergo an MRI, which was generally unremarkable.

Davis took a leave of absence from Whirlpool between late July through August 2008 for problems associated with his COPD, a condition unrelated to his back injury. Davis asked Dr. Momany to "unrestrict" him on September 11, 2008. According to Davis, he asked Dr. Momany to do this because Whirlpool was eliminating his position, and he had to be restriction-free to bid for a new position. Because Davis represented that he was no longer having significant lower back pain, Dr. Momany concluded that Davis was at maximum medical improvement (MMI) with his back and had no impairments. Dr. Momany wrote that Davis was "back to baseline" based exclusively on Davis's statements that his back was no longer hurting.

On September 30, 2008, Davis again visited Dr. Momany and told him that while he was at work on September 26, he felt a knife-like pain in his lower back as he was going down a ladder. Dr. Momany's September 30 notation reads in part,

He saw his LMD[2] who recommended he see Linn County PT. . . . I think it is reasonable to work with Linn County PT through his private provider. He understands that will not be covered by work comp.[3] I would like to see him back in 2 weeks, and I will leave him unrestricted.

On September 30, 2008, Davis began to visit his primary care physician, Wendy Buresh, M.D., for his lower back problems.[4] Davis told Dr. Buresh that his lower back had not felt better since the injury occurred, and she diagnosed a low back strain.

Dr. Momany again saw Davis on October 14, 2008. The medical notes from that visit read:

Recheck back pain.
S: No improvement. He was unable to get the physical therapy with Linn County as no longer in their insurance network. His job is eliminated, having to move to a different area the first of the week, but he is not sure where that will be. His LMP suggested he might be nearing MMI since he is about 6 months out. He tells me today he was never completely improved. Stairs were never something he could do readily.
O: No re-exam today.
A: Subacute, becoming chronic pain.
P: I agree that he is probably approaching MMI. As such, consider FCE [functional capacity evaluation]. Reschedule for 1 week when we know his new job position. In the meantime he will remain unrestricted.

Davis underwent an FCE in October of 2008 with physical therapist Kent Reeves "to identify the client's safe maximum abilities." Reeves determined that Davis's abilities fell within the "medium work level" and recommended that Davis not exceed specified amounts of activities, such as lifting certain weights, when he returned to work. He also advised Davis to avoid ladders and stairs and to minimize squatting and crouching activities. Reeves opined Davis's performance during the FCE was consistent with someone experiencing pain during testing.

In an October 31, 2008 note, Dr. Momany notes there was a question whether Davis had lung cancer and writes, "his work related back situation pales with his overall health related problem." He also noted "[c]hronic back pain ...


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