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Ginther v. Second Injury Fund

Court of Appeals of Iowa

June 6, 2018

RONALD L. GINTHER, Plaintiff-Appellant,
v.
SECOND INJURY FUND, Defendant-Appellee.

          Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.

         Ronald Ginther appeals the district court's ruling on judicial review affirming the decision of the Iowa Workers' Compensation Commissioner denying his claim for benefits from the Second Injury Fund of Iowa.

          Thomas M. Wertz, Daniel J. Anderson, and Shannon M. Powers (until withdrawal) of Wertz, Dake & Anderson, Cedar Rapids, for appellant.

          Thomas J. Miller, Attorney General, and Sarah C. Brandt, Assistant Attorney General, for appellee.

          Heard by Vogel, P.J., and Doyle and Bower, JJ.

          DOYLE, JUDGE.

         Ronald Ginther appeals the district court's ruling on judicial review affirming the decision of the Iowa Workers' Compensation Commissioner denying his claim for benefits from the Second Injury Fund of Iowa (Fund). He asserts (1) the district court erred in finding the agency's determination that a rating to the body as whole on the basis of pain could not constitute a first-qualifying injury is a factual issue rather than a misinterpretation of Iowa law; (2) the commissioner interpreted Iowa law pertaining to first-qualifying injuries for second-injury-fund purposes; and (3) the district court erred in finding the commissioner did not abuse his discretion in determining Ginther did not suffer a first loss as a result of his 1996 right foot injury. We affirm.

         I. Background Facts and Proceedings.

         Ronald Ginther was born in 1949, and he began working for Iltens in 1987, where he delivered, installed, and serviced appliances. In June 1996, Ginther went to the doctor after he experienced some pain in his heel and strain in the arch of his right foot. He explained he had been having some pain since approximately April 1996, and he reported that pain was particularly noticeable after he "jumped off [the] truck hard and landed on [his right] foot" in May 1996. Ginther was diagnosed with plantar fasciitis and was directed to participate in physical therapy and to wear an arch support. After participating in eight physical-therapy sessions without any change to his overall status, physical therapy was discontinued. Ginther was "going to give this condition a few weeks and see what happen[ed]." He did not seek further treatment for his foot thereafter.

         In late 2011, Ginther injured his left knee when he "twisted his leg and felt a pop and pain in his left medial knee region" while "moving a 380-pound refrigerator." He saw a doctor a few days later, and, after an MRI scan, it was determined he had a tear in his medial meniscus. He was referred to orthopedics and pursued arthroscopic debridement. After the surgery, Ginther continued to have significant difficulty with the range of motion and pain in his knee. Physical therapy was recommended, and he completed fifteen weeks of physical therapy. Finding there had been no improvement thereafter, Ginther's orthopedist opined Ginther was at maximum medical improvement (MMI). Ginther was then referred for a functional capacity evaluation. In addition to his knee injury, Ginther's right shoulder was found to have limited range of motion. However, Ginther's right foot was reported to have normal range of motion.

         Ginther was seen by Dr. Mysnyk for a second opinion. Dr. Mysnyk ultimately found Ginther was at MMI, and the doctor believed Ginther's orthopedist was best suited to determine Ginther's impairment rating. Using impairment guidelines, Ginther's orthopedist opined Ginther had a 12% lower extremity impairment and a 5% whole person impairment.

         An independent medical examination was performed by Dr. Sassman. Concerning his foot injury, Ginther reported to Dr. Sassman that he continued to have foot pain over the years, requiring him to always wear shoes and inserts. Following the examination, Dr. Sassman opined Ginther had a total lower-extremity impairment rating of 19%, with a whole-person impairment of 8%. Additionally, concerning Ginther's right foot, Dr. Sassman opined: "For the right plantar fasciitis, no ratable impairment exists. However, given the symptoms that [Ginther] is describing, I would recommend assigning 3% whole person impairment for pain." Dr. Sassman described Ginther's foot condition:

Plantar fasciitis involves pain and inflammation of a thick band of tissue that runs across the bottom of the foot called the plantar fascia. This tissue connects the heel to the toes. Plantar fasciitis is one of the most common causes of heel pain. Under normal circumstances the fascia acts as a shock absorbing material. Risk factors for development of this issue however include age (most common between the ages of 40 and 60), certain types of exercise, including exercise that puts a lot of stress on the heel and attached tissue, such as long·distance running. Faulty foot mechanics also can cause this to develop. In addition, obesity, occupations where the person has to spend a lot of time on their feet and improper shoes can cause this issue to develop as well.
Plantar fasciitis is typically treated with medications such as nonsteroidal anti-inflammatory medications. Physical therapy, splints and orthotics are also beneficial. In ...

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