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Baccam v. ACH Food Companies, Inc.

Court of Appeals of Iowa

March 6, 2019

MEK BACCAM, Plaintiff-Appellant,
v.
ACH FOOD COMPANIES, INC., a/k/a TONE'S, and SENTRY INSURANCE COMPANY, Defendants-Appellees.

          Appeal from the Iowa District Court for Polk County, Paul R. Huscher, Judge.

         An injured worker appeals the district court's judicial review decision in his workers' compensation case.

          Mark S. Soldat of Soldat & Parrish-Sams, PLC, West Des Moines, for appellant.

          Patrick V. Waldron and Michael S. Jones of Patterson Law Firm, L.L.P., Des Moines, for appellees.

          Heard by Doyle, P.J., and Mullins and McDonald, JJ.

          Mullins, Judge.

         Mek Baccam appeals the district court's ruling on his petition for judicial review, which affirmed the workers' compensation commissioner's award of benefits except on the issue of penalty benefits, which the district court remanded to the commissioner. On appeal, Baccam contends the district court erred in: (1) affirming the commissioner's award of three percent permanent partial disability (PPD), claiming the award was the result of multiple errors by the commissioner; (2) failing to solely order the commissioner to determine penalty benefits on remand; (3) affirming the denial of his request to tax all of the transcript costs; and (4) taxing Baccam with three-quarters of the court costs.

         I. Background Facts and Proceedings

         Baccam sustained a work-related injury on June 12, 2012, when his leg became caught between the forklift he was operating and a door frame. His employer, ACH Food Companies, Inc., a/k/a Tone's, provided bandages and ice on-site and then transported Baccam to the emergency room. Baccam's leg was sutured and x-rayed. On the same day, Baccam was referred to an occupational-medicine clinic where he was evaluated by Dr. Bingham. Following an examination, Dr. Bingham released Baccam to return to work with the restriction of sit-down duty only. Baccam did not report to work on June 13, as he voluntarily took a vacation day. When he returned to work, his light-duty assignment resulted in a change in the days he worked and the hours of his workday, and he was paid a lower hourly wage than his normal assignment, with no opportunity for overtime.

         Baccam returned to Dr. Bingham on June 15 with complaints of bruising, redness, and warmth around the wound. The physician continued the existing work restrictions. Baccam saw Dr. Bingham again on June 19 with complaints of continued pain but acknowledged the pain had decreased. Dr. Bingham noted a nearly full range of motion, some pain, and swelling. He modified Baccam's work restrictions to primarily sit-down duty with standing and walking as tolerated. Dr. Bingham saw Baccam again on June 22 and noted mild swelling and a mild limitation of motion. Baccam's work restrictions were eased to include kneeling and squatting as tolerated. Baccam's work restrictions were fully lifted on June 29, as Baccam indicated to Dr. Bingham he had little pain and some swelling but believed he was capable of returning to work without restriction. At the hearing, Baccam denied requesting the restriction release and testified that his symptoms had remained, including tingling, burning, and numbness.

         On June 25, Baccam filed a claim with Tone's insurance company, Sentry, about the injury, his symptoms, and change in work assignment. Baccam saw his personal physician, Dr. Madson, on July 6 and reported soreness and swelling of his leg. Dr. Madson noted no redness, sign of infection, or significant swelling. He also noted Baccam walked with a normal gait. He assured Baccam the laceration would continue to heal and any soreness or tenderness would resolve over time. Baccam returned to Dr. Bingham on July 13, complaining of a pulling sensation in his leg and an inability to exercise as he had before the injury. Dr. Bingham noted some swelling and Baccam's complaints of pain. He continued to recommend Baccam work without restriction but referred him to physical therapy.

         Baccam engaged in seven sessions of physical therapy from August 2 to August 20. The physical therapist noted the leg pain was resolved, the strength of the leg was five on a scale of five, and excellent range of motion. He discharged

          Baccam to continue with exercises at home. Baccam returned to Dr. Bingham on August 24, claiming he received no relief from physical therapy and still suffered from swelling, tingling, and burning in his leg. Dr. Bingham noted some swelling around the wound but a full range of motion and a normal gait. At Baccam's insistence, Dr. Bingham referred Baccam to an orthopedic surgeon, Dr. Kimelman.

         On September 6, Dr. Kimelman evaluated Baccam for his reported symptoms of tingling, numbness, and swelling. Baccam reported these symptoms were mild but constant. Dr. Kimelman determined Baccam's injury caused nerve damage in the back of his leg but the damaged area would improve over time. However, the nerves near the wound were lacerated and would likely not improve so there was some permanency to Baccam's injury, but it was "cosmetic and superficial."

         Baccam returned to Dr. Kimelman on January 6, 2013 with complaints of itching, burning, and numbness. Kimelman noted Baccam reported improvement of the level of these symptoms. He recommended Baccam return in June, one year after the injury, to determine if there was permanency to his issues. Baccam returned in June and reported no change in his symptoms. Dr. Kimelman noted Baccam walked with a normal gait, but measured loss in the girth of Baccam's injured leg as compared to the other. He also noted some decreased sensation and local tenderness. Dr. Kimelman's opinion after examination was that Baccam's condition was unlikely to change or worsen but resulted in some permanence. On August 9, Dr. Kimelman opined Baccam sustained a one percent impairment to his leg as determined by the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition. On August 15, Sentry sent a letter to Baccam about Dr. Kimelman's impairment rating, which warranted 2.2 weeks of PPD benefits and included a check for the period of June 27 through July 11, 2013.

         Baccam filed an arbitration petition with the workers' compensation commissioner in September. Baccam sought temporary partial disability (TPD) benefits plus interest to compensate for the reduced hourly wage and the hours he lost while on restricted duty. On March 25, 2014, Baccam completed an independent medical exam with Dr. Taylor. Dr. Taylor reported Baccam could walk without difficulty or a limp and he had full strength, no range-of-motion deficits, and no noticeable visible differences between his legs, but Dr. Taylor noted Baccam complained of pain upon palpation. He determined no further treatment was needed and assigned a three ...


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