CARE INITIATIVES d/b/a HERITAGE NURSING & REHAB, Petitioner-Appellant,
BONNIE HOFFMAN, Respondent-Appellee
This opinion is subject to modification or correction by the court and is not final until the time for rehearing or further review has passed.
Appeal from the Iowa District Court for Polk County, Carla T. Schemmel, Judge. An employer appeals from a district court decision affirming the workers' compensation commissioner's ruling that the claimant is permanently and totally disabled.
Joseph Thornton of Smith Peterson Law Firm, L.L.P., Council Bluffs, for appellant.
Emily Anderson of Riccolo & Semelroth, P.C., Cedar Rapids, for appellee.
Considered by Vogel, P.J., and Mullins and McDonald, JJ.
An employer, Care Initiatives, appeals from a district court judicial review decision affirming the ruling of the workers' compensation commissioner awarding the claimant, Bonnie Hoffman, permanent total disability benefits for an injury she sustained while working. The employer asserts: 1) there is not substantial evidence to support the commissioner's finding; 2) the commissioner's decision was based upon an irrational, illogical, or wholly unjustifiable application of the law to the facts; and 3) the commissioner's decision was an abuse of discretion.
I. Background Facts and Proceedings.
Hoffman was a registered nurse at the time she sustained an injury that is the subject of this appeal. Hoffman graduated from high school and attended one year of college. In 1968, she obtained a nursing diploma from St. Luke's Hospital and Coe College. After obtaining her nursing license, Hoffman worked as a labor-and-delivery nurse, an office assistant, a nurse recruiter, an industrial nurse in a factory, a nutrition- and weight-loss-class teacher, and finally a charge nurse. At the time of the workers' compensation hearing, Hoffman was sixty-five years old and had been a nurse since 1968.
In August 2007, Hoffman was working at Heritage Nursing and Rehabilitation (Heritage), one of several residential, senior-care facilities operated by Care Initiatives. On August 27, Hoffman injured her right shoulder and arm while repositioning a resident in his bed and lifting another resident from the floor. Hoffman is right-hand dominant. Hoffman reported her injury to Heritage's assistant director. Upon consulting a doctor, Heritage placed Hoffman on light duty.
In November 2007, Hoffman underwent an MRI for her injury which showed a torn rotator cuff, a sixty percent tear of the bicep tendon, and a subluxation of the sternoclavicular joint. In January 2008, orthopedic surgeon Dr. Fred Pilcher performed surgery on Hoffman's shoulder and released her to work four-hour days with no use of her right arm. Hoffman reported constant pain in her shoulder that increased with a wider range of motion or repetitive movement. Hoffman also attended physical therapy, but reported no improvement in her pain. In July 2008, Dr. Pilcher reported Hoffman had achieved maximum medical improvement and had a twelve percent whole-person impairment. On July 15, 2008, Heritage terminated Hoffman's employment because of her physical restrictions. Hoffman petitioned for workers' compensation benefits, and the parties stipulated Hoffman's injury was work-related. Hoffman's petition came on for hearing before the deputy workers' compensation commissioner in June 2011.
In September 2009, Hoffman underwent reverse right shoulder replacement surgery under the care of Dr. Brian Adams. Dr. Adams released Hoffman from his care in March 2010 after she achieved maximum medical improvement. He assessed her to have twenty-percent impairment and recommended a number of physical restrictions: Hoffman was able to lift, push, or pull one to five pounds frequently with one or both hands or six to thirty pounds occasionally with both hands; but never more than thirty pounds. Dr. Adams also reported Hoffman was not able to climb. She was able to grasp, push or pull, and reach out occasionally, but she should not reach above her shoulder. Dr. Adams also reported Hoffman was fully able to do fine manipulation. Although Hoffman reported discomfort and pain in her shoulder and arm, Dr. Adams stated he found no structural reason for the discomfort. He also stated, " Some patients do report mild discomfort in the shoulder following a successful reverse total shoulder but it is not considered to be a limiting factor within the activity restrictions listed[.]"
Between her termination in July 2008, and the hearing before the deputy commissioner in June 2011, Hoffman never reentered employment. At the hearing Hoffman offered into evidence a spreadsheet giving details of her job applications since August 2008 and their outcomes. The spreadsheet showed Hoffman applied to around 150 employers. For most positions Hoffman submitted an online application or sent a resume. The spreadsheet contains notations such as " sent resume," " applied online," " weight restrictions," " must be able to lift 50 lbs," and other notes. Hoffman made in-person contact with the prospective employer on only a few occasions. Hoffman had one interview, but the prospective employer stated she was unable to perform the job due to lifting restrictions. The positions she applied for include registered nurse, receptionist, billing staff, pharmacy technician, clerical staff, retailer, and nurse recruiter. There is a gap in the record from July 2009 to July 2010 during which Hoffman did not apply for any jobs. She testified she had shoulder surgery with follow-up treatment and physical therapy during this time and was unable to drive.
Hoffman also sought assistance in regaining employment. In August 2010, she applied for assistance through Iowa Vocational Rehabilitation Services, which classified her as " significantly disabled" and placed her on a waiting list for services. She registered with the Iowa Reemployment Services program for training on professional job application skills. She also obtained a work certificate through Iowa Workforce Development designed to inform prospective employers of her qualifications. At Worklife Resources, Inc., a vocational rehabilitation counselor, Kent Jayne, administered a number of employment-related tests and evaluated her employment prospects.
Pain continued to affect Hoffman's ability to work. During a deposition on December 16, 2010, Hoffman testified she was experiencing pain that day. Care Initiatives' counsel asked, " How would you describe the pain that you're having today." Hoffman described it as " an aching in the shoulder and biceps, like a nagging toothache, not one you really want to see a dentist about." Hoffman also testified the pain varied, feeling better and worse day-to-day. On that particular day, she described the intensity of the pain as four or five out of ten, which was unusually tolerable. She testified the pain intensity was nine out of ten roughly half the time.
In June 2011, at the hearing before the deputy commissioner, Hoffman testified she still had constant pain in her right shoulder, bicep, and the area where the clavicle and sternum meet. The pain increased with daily activities. Hoffman testified the pain had changed how she did many activities such as washing dishes and going grocery shopping. She also testified she experienced pain while driving, and her daughter drove her to a destination half an hour or forty-five minutes ...