David Lowell Evenson v. Winnebago Industries, Inc. and Sentry Insurance Company

881 N.W.2d 360, 2016 Iowa Sup. LEXIS 65
CourtSupreme Court of Iowa
DecidedJune 3, 2016
Docket14–2097
StatusPublished
Cited by24 cases

This text of 881 N.W.2d 360 (David Lowell Evenson v. Winnebago Industries, Inc. and Sentry Insurance Company) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
David Lowell Evenson v. Winnebago Industries, Inc. and Sentry Insurance Company, 881 N.W.2d 360, 2016 Iowa Sup. LEXIS 65 (iowa 2016).

Opinions

ZAGER, Justice.

In this appeal, we are asked to decide whether an employer’s matching contributions to an employee’s 401k plan should be considered part of weekly earnings for purposes of calculating workers’ compensation weekly benefits. We must also decide whether the district court erred in affirming the workers’ compensation commissioner’s decision on the amount of healing, period benefits owed,' the extent of permanent disability, and the penalty to' be awarded. For the reasons stated below, we conclude that , an employer’s matching contributions to an employee’s 401k plan are not weekly earnings for purposes of calculating workers’ compensation weekly benefits. We also conclude the district court did not err in affirming the decision of the commissioner with respect to the extent of permanent' disability. However, we hold that the district court erred in affirming the date when healing period benefits commenced, the date when the healing period benefits ended, and the date when permanent partial disability (PPD) benefits commenced. We therefore affirm in part and reverse in part the judgment of the district court. We remand the case to the district court- with the following instructions on judicial review: (1) to affirm the commissioner’s findings as to the weekly benefit rate and the extent of permanent partial disability and (2) to remand the case to the commissioner for a redeter-mination of the date when healing period benefits commenced in September 2010, for a redetermination of the date when healing period benefits ended and PPD benefits commenced, and for á recalculation of penalty and interest benefits based on the above dates.

I. Background Facts and Proceedings.

David Evenson began working at Winnebago Industries, Inc. in 1987 to supplement his income from farming. On May 18, 2010, while employed at Winnebago, Evenson sustained an. injury to his left elbow. Evenson was an hourly employee at the- time of his injury. On May 27, Even-son sought treatment for pain in his left elbow. He was seen by James McGuire, PA-C. Evenson reported that the pain in his left elbow started after he was stacking aluminum running boards as part of his job duties. Evenson was diagnosed.with left elbow medial epicondylitis. He was provided a brace and advised to avoid lifting running boards until his next appointment. At his next appointment, Evenson reported the pain condition had improved and that he was still working his regular job.- At his follow-up appointment on June 10, Evenson reported that his left elbow was sore because he had been doing extra work at Winnebago and working overtime. Although Evenson had full range of motion in his left arm, McGuire restricted him to working eight-hour days, five days per week.

[363]*363Evenson was also treated by Dr. Carlson. Evenson received a cortisone injection in his left elbow on June 25, and he reported that it reduced his pain significantly. At his follow-up appointment with McGuire, Evenson was told he could continue with his work duties at eight hours per day. At the next appointment, Even-son reported more discomfort with heavy lifting and- gripping, .but also reported that he had been working ten-hour days. On August 17, Evenson reported he was experiencing more pain in his left elbow while working overtime.

On September 3, Evensón receivéd a second cortisone injection from Dr. Carlson. On the same day, he was also given work restrictions, and told not to use his left arm for two weeks. Evenson claims that September 3 is the date when he stopped working, while Winnebago asserts that September 7 is the date that he stopped working. Dr. Carlson made notations on the Winnebago form following the cortisone injection on September 3 that stated:' “OFF 1300 9-3-10 ... can’t accommodate — will give vac. for remainder of day if he chooses or 98 WX — wants Holiday pay so plans to use vac.” Winnebago’s records show that Evenson took one hour of vacation pay on September 3 and that there was a plant shut down on the same day for one-half hour. Evenson was also paid eight hours of holiday pay on September 6 for Labor Day. The records indicate no other vacation pay during the time period between September 3 and September 6.

On September- 7, Evenson had a followup appointment with McGuire. McGuire noted some improvement in the left elbow and advised Evenson to avoid tight gripping and heavy lifting with his left arm. McGuire’s office notations from the appointment- state that Evenson “was told that there is really no light duty in his work area. His supervisor wanted to know if there is some other -alternative to this; otherwise, he will have to be off work.” The notation goes on to say that Evenson “should be off work for another ten days as long as they do not have any light duty for the patient.” (Emphasis added.)

Evenson was eventually referred to Dr, Gibbons, an orthopedic surgeon. On October 5, after his examination of Evenson, Dr. Gibbons gave Evenson work restrictions to only lift up to twenty’ pounds continuously; to push, pull, or lift with his-left arm only 'occasionally; and to avoid repetitive tasks. At a follow-up appointment, Evenson reported that his symptoms were worsening. Dr. Gibbons restricted Evenson to lifting ten pounds continuously and twenty pounds occasionally, and directed him not to púsh/pull or handle/grip with' hi's left arm. Dr. Gibbons lifted these restrictions on January 27, 2011, and Evenson was released to return to his regular duties. Dr. Gibbons reported that Evenson was at maximum medical improvement (MMI) at’ that time. He also noted that he had no impairment rating for Evenson because Evenson retained the full range of motion in his left elbow.

On September 14, 2011, Evenson filed a petitton seeking workers’ compensation benefits related to the injury to his left elbow. Sentry Insurance Company was the workers’ compensation insurer for Winnebago.1

In February 2012, Evenson was again seen by McGuire. At this appointment, [364]*364Evenson complained that he was still having elbow pain and reported numbness and tingling radiating down his arm into the left small and ring fingers. McGuire ordered nerve conduction studies on the left elbow and advised Evenson to limit left hand gripping. The studies showed ulnar neuropathy in Evenson’s left elbow and asymptomatic mild median, neuropathy in Evenson’s left wrist.

Evenson was later treated by Dr; Yanish, another orthopedist. On March 4, Dr. Yanish diagnosed left medial epicondylitis and ulnar nerve impingement. An MRI showed some tendinopathy.'

At the request of his attorney, Evenson obtained an independent medical examination and evaluation (IME), from Dr. Kuhn-lein in March 2012. The IME addressed not only the nature and extent of the injury to Evenson’s left elbow, but also addressed several other body parts and conditions that were separately relevant to his claim against the Second Injury Fund.2

Dr. Yanish performed surgery on Even-son’s left elbow on April 14, after which Evenson underwent physical therapy. Dr. Yanish kept Evenson off work until May 2, but noted that Evenson could not use his left arm upon return to work. On June 10, Evenson reported his pain had improved and he was not experiencing any further numbness or tingling. Dr. Yanish restricted Evenson to not lifting anything over ten pounds with his left arm. In early August, Dr. Yanish changed Evenson’s restrictions to not lifting more than twenty pounds with his left arm. Dr. Yanish also found an improved range of motion in Evensoris left elbow.

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Bluebook (online)
881 N.W.2d 360, 2016 Iowa Sup. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-lowell-evenson-v-winnebago-industries-inc-and-sentry-insurance-iowa-2016.