Dunlap v. Action Warehouse

824 N.W.2d 545, 2012 WL 4900376, 2012 Iowa App. LEXIS 877
CourtCourt of Appeals of Iowa
DecidedOctober 17, 2012
DocketNo. 11-1451
StatusPublished
Cited by14 cases

This text of 824 N.W.2d 545 (Dunlap v. Action Warehouse) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunlap v. Action Warehouse, 824 N.W.2d 545, 2012 WL 4900376, 2012 Iowa App. LEXIS 877 (iowactapp 2012).

Opinion

DOYLE, J.

Employer Action Warehouse and its workers’ compensation carrier, Commerce & Industry Insurance Co. (hereinafter collectively referred to as “Warehouse”), appeal from the district court ruling on judicial review affirming in part and reversing in part the workers’ compensation commissioner’s decision. They contend the court erred in affirming the commissioner’s findings that (1) Thomas Dunlap’s elbow and back injuries were causally related to his work incident and (2) Dunlap was entitled to temporary disability/healing period benefits. Additionally, they assert (3) the court erred in reversing the commissioner’s decision that Dunlap was not entitled to penalty benefits. Dunlap cross-appeals from the district court’s affirmation of the commissioner’s conclusion that the agency had no contempt power concerning Warehouse’s expert’s non-compliance with a subpoena and subpoena duces tecum. He also cross-appeals from the district court’s ruling that limited the period of penalty benefits. We affirm in part and reverse in part.

I. Background Facts and Proceedings.

In November 2005, Thomas Dunlap applied to work for Warehouse. On the application, he stated he was a high school graduate although he had only completed the ninth grade. Warehouse hired Dunlap shortly thereafter as a warehouse worker. He eventually was put “sort of in charge of production” in his work building. The job was very fast-paced, and it required Dunlap to occasionally bend, stoop, squat, climb, reach above shoulder level, crouch, kneel, push, pull, twist, turn, carry, and lift.

While employed by Warehouse, Dunlap admitted he was occasionally late to work ten or fifteen minutes in the winter months. He was never disciplined for tardiness. In April 2007, Dunlap received a disciplinary action for missing work without calling in.

On July 18, 2007, Dunlap sustained a work injury. While pulling a fifty-plus-pound box off a shelf, the pallet he was standing on broke. He fell backward into the raised forklift he had been using, “twisting, turning, and smashing the box into [him].” Dunlap’s chest and back were both very red and sore. He attempted to go back to work, but was in a lot of pain. He reported the incident, and Warehouse asked him to see a particular doctor. Dunlap requested a different doctor, and Warehouse sent him to see Bern R. Boy-ett, M.D.

Dunlap saw Dr. Boyett a few hours after the incident. Dr. Boyett’s notes state that Dunlap presented with the “chief complaint of pain in his left back and left lower portion of the neck.” He observed Dunlap [549]*549had redness, swelling, and tenderness in his back, and he reported that bending and twisting of the neck caused Dunlap pain. He also noted that “using the left arm overhead was difficult” for Dunlap. He ultimately found Dunlap had a “back contusion/strain” that was work related, and he determined Dunlap could return to work with restrictions including no forklift truck driving, no overhead work, no lifting over twenty pounds, and no pushing or pulling on heavy items. He prescribed Dunlap a muscle relaxer and pain medication. He did not order any diagnostic tests or treatments on this visit. He scheduled an appointment for Dunlap to return in four to five days.

Dunlap saw Dr. Boyett on seven more occasions. On July 30, Dr, Boyett ordered Dunlap to enroll in physical therapy. Dr. Boyett’s notes from the August 16 appointment noted Dunlap reported his pain was worse, stating the pain was disturbing his sleep and that he had leg pain. Dr. Boy-ett’s notes further stated Dunlap was possibly experiencing side effects from the medication, and he discontinued Dunlap’s medications. Dr. Boyett’s August 27 notes state Dunlap reported he had felt a pop in his back while sitting at home, and he was generally feeling better, though his leg pain had continued when he returned to work and he had mild discomfort and tenderness in his back. On this visit, Dr. Boyett obtained an x-ray of the lumbosa-cral spine and reported it was unremarkable. He noted Dunlap was still symptomatic, with back and leg pain, and he ordered an MRI to be done. He discontinued physical therapy for Dunlap, finding it had not been helpful.

Dunlap last saw Dr. Boyett on September 11 for a recheck following his MRI. Dr. Boyett’s notes state Dunlap reported only mild discomfort, though he had some generalized soreness all the time and sleep issues. Dr. Boyett found the MRI was completely normal, and he assessed Dunlap as having “chronic back pain with apparent symptom magnification.” Dr. Boy-ett discharged Dunlap from his care, and his notes state he “encouraged [Dunlap] to return to full duty” and to “increase [his] activities as able.” His notes also state Dunlap was to follow-up as needed.

During the time period Dunlap saw Dr. Boyett, Dunlap continued to work at Warehouse, missing no work, except for doctor appointments, from the time of his incident until September 17. While working, Dunlap ’ regularly complained to his manager and co-workers about Dr. Boy-ett’s care, findings, and diagnoses. Dunlap told them Dr. Boyett would not listen to him about his condition and that Dr. Boyett did not believe him. When Dunlap was discharged from treatment by Dr. Boyett, he expressed to his manager and co-workers his surprise and dissatisfaction with the release. He asked his manager what he should do since he was still in great pain and was not given a satisfactory answer by Dr. Boyett. The manager referred him to Warehouse’s human resources/workers’ compensation manager. Dunlap asked her if he could see a different doctor and was told he could do so at his own expense.

On September 17 and 18, Dunlap called into work sick, stating he had a touch of stomach flu and back pain. He did not have a doctor’s note. His manager talked with Warehouse’s operational manager, and they “decided that [they] were getting along pretty good without [Dunlap] ... every time he was gone, so why did [they] need to keep [Dunlap] there any longer.” When Dunlap returned on September 19, Warehouse terminated his employment for “excessive absenteeism and tardiness,” though he had not been written-up for any absences or tardiness except the April [550]*5502007 write-up. In fact, Warehouse kept no records of any alleged absences or tardiness and admits Dunlap missed no work after the incident but for doctor’s appointments. Warehouse did not advise him his absences and tardiness were a problem. In terminating his employment, Dunlap’s manager told him, “I don’t think your heart is in this.” Dunlap subsequently applied for and was awarded unemployment benefits, despite Warehouse’s resistance.

Dunlap continued to experience back pain. He attempted to do some work for his brother installing sheet rock, but could not continue beyond twenty minutes due to the pain. Dunlap did not seek medical help at that time because he had no insurance and believed he would be responsible for the expenses. After moving into a different home, Dunlap learned there was a free medical clinic nearby, and he sought treatment there.

At the clinic, Dunlap saw Nick Palmer, D.O., for his ongoing back, leg, and hand pain, and for his sleep issues. Dr. Palmer found in his examination that Dunlap had left radicular symptoms and diminished reflexes, sensory nerve deficit, lost range of motion, and complete numbness in the L4-L5 dermatomes. Dr. Palmer “felt ... [Dunlap] definitely needs some further follow-up” and referred Dunlap to Scott Neff, D.O., an orthopedic specialist. Dr. Palmer’s referral letter to Dr.

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824 N.W.2d 545, 2012 WL 4900376, 2012 Iowa App. LEXIS 877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunlap-v-action-warehouse-iowactapp-2012.