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Bos v. Climate Engineers, Inc.

Court of Appeals of Iowa

November 22, 2017

MICHAEL E. BOS, Petitioner-Appellee/Cross-Appellant,
v.
CLIMATE ENGINEERS, INC., and THE HARTFORD FIRE INSURANCE, Respondents-Appellants/Cross-Appellees.

         Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly, Judge.

         Employee 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.

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

          Considered by Danilson, C.J., and Tabor and McDonald, JJ.

          MCDONALD, JUDGE

         Michael 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.

         I.

         In 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.

         Bos 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 concluded:

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 debilitating.

         Dr. Beer also wrote in the same letter Bos's depression was "clearly exacerbated by the accident . . . and the resulting restrictions and limitations that occurred."

         The 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.

         Two 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 ...


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