MICHAEL E. BOS, Petitioner-Appellee/Cross-Appellant,
CLIMATE ENGINEERS, INC., and THE HARTFORD FIRE INSURANCE, Respondents-Appellants/Cross-Appellees.
from the Iowa District Court for Linn County, Mary E.
and employer cross-appeal from district court order on
workers' compensation benefits.
Timothy W. Wegman and Joseph M. Barron of Peddicord Wharton,
LLP, West Des Moines, for appellants.
M. Wertz and Daniel J. Anderson of Wertz, Dake &
Anderson, Cedar Rapids, for appellee.
Considered by Danilson, C.J., and Tabor and McDonald, JJ.
Bos was employed by Climate Engineers, Inc., as a
pre-apprentice sheet metal worker. During the course of his
employment, he sustained a work-related left shoulder injury.
The injury required surgery and physical therapy. Bos sought
and obtained workers' compensation benefits. Both parties
sought judicial review of the agency's decision. The
district court affirmed the agency's finding with respect
to Bos's benefits. The district court concluded an expert
witness report was improperly admitted into evidence and
remanded the case to the agency for reconsideration without
the improperly admitted evidence. Both parties appeal the
district court's decision.
October 2012, Bos suffered a work-related injury to his left
shoulder while moving plywood. He reported the injury to his
employer and sought medical assistance at a local emergency
room. Subsequently, Bos treated with orthopedic surgeon Dr.
James Pape, who had previously treated Bos for a dislocation
of the same shoulder. In January 2013, Dr. Pape performed a
left shoulder arthroscopy with labral repair and left
shoulder anterior capsular plication. Following the surgery,
Bos was on leave. He engaged in physical therapy until June
10, 2013, when he was discharged. He did not return to work,
and Climate Engineers terminated his employment on June 14.
continued to seek medical treatment following the cessation
of his employment. Bos developed a left inguinal hernia and
had surgery on June 27. From July to November 2013, Bos
continued to treat with Dr. Pape. In December, Dr. Pape
referred Bos to a pain clinic for further evaluation. In the
same December, Bos saw his primary care physician, Dr. Beer,
and reported he was feeling depressed because of various
stressors in his life. The stressors included the inability
to return to work and concomitant financial issues. Dr. Beer
prescribed Cymbalta. Dr. Beer characterized Bos's
depression as moderate. A letter Dr. Beer later drafted
Overall, regarding Mr. Bos's anxiety/depression, if his
shoulder condition were to improve, I would anticipate his
anxiety and depression would also improve. Commonly, patients
who suffer injuries that lead to disability, even if there is
no underlying depression/anxiety, will develop
depression/anxiety. In patients with underlying depression
and anxiety, the symptoms are often more severe and
Beer also wrote in the same letter Bos's depression was
"clearly exacerbated by the accident . . . and the
resulting restrictions and limitations that occurred."
workers' compensation case came on for a contested
hearing regarding Bos's claim for industrial disability
benefits. Bos received two independent medical examinations.
Dr. David Tearse opined Bos had a 6% whole-person impairment
and assigned permanent work restrictions. Bos also received
an independent medical examination from Dr. Mark Taylor. Dr.
Taylor assigned Bos a 7% whole-person impairment rating and
similar permanent work restrictions. Dr. Taylor also
cautioned Bos against "climbing extension or vertical
ladders due to the residual left shoulder symptoms." In
addition to the independent examinations, Dr. Pape assigned
Bos a 6% impairment rating.
vocational experts provided expert opinions. Bos was
thirty-three years old at the time of the hearing. His
education history included the completion of high school and
some college courses. His work history is primarily
construction and maintenance. He holds a chauffeur's
license and a forklift-operator certification. Kent Jayne
submitted a report on behalf of Bos. Jayne's report
concluded Bos's "reduced ability to use his upper
extremities, and his limited ability to perform manual
dexterity, fine motor coordination, and minimal clerical
skills" along with his work restrictions "would
preclude him from nearly all jobs within his previous
capacities in the labor market." According to Jayne, Bos
"has no marketable transferable skills at his current
level of ...