Iowa Workers' Compensation Lawyer Blog
The Iowa Workers’ Compensation Commissioner entered an appeal decision on December 29, 2021, in the case of Pamela Carmer v. Nordstrom, Inc. The case addressed two interesting issues:
- If a worker suffers an accepted right shoulder injury, and develops problems with the left shoulder from trying to protect the right shoulder, will the left shoulder injury be considered to be a work injury?
- One of the 2017 amendments to the Iowa workers’ compensation law changed the classification of a shoulder injury from a more valuable unscheduled injury to a less valuable scheduled injury. However, if a worker suffered injuries to both shoulders, should the bilateral injury be treated as a scheduled or unscheduled injury?
Ms. Carmer worked for Nordstrom in receiving, unboxing clothing and accessories, hanging merchandise on hangers, filling totes, and putting on labels. The boxes she lifted weighed up to 70 pounds.
On August 6, 2018, Ms. Carmer was processing an order and picked up a box while wearing gloves. The box slipped out of her hands and she tried to grab it and felt immediate pain. Ms. Carmer reported her injury to Nordstrom which sent her for medical treatment.
On August 7, 2018, Ms. Carmer received treatment from Alexi Becker, ARNP. She reported the pain was worse with range of motion and on palpation and better with rest. Carmer reported she had congenital shoulder condition that required surgery several years back, but she was uncertain which shoulder required surgery and she had arthralgias or pain in one or more joints. Becker diagnosed an acute right shoulder pain and abnormal musculoskeletal x-ray, and prescribed a sling and hydrocodone.
On August 9, 2018, Carmer underwent right shoulder magnetic resonance imaging. The reviewing radiologist listed an impression of: 1. Large full-thickness superior rotator cuff tear in a location suggesting laceration against the lateral margin of the acromion. This is occurring against a background of severe diffuse superior rotator cuff tendinopathy. 2. Mild AC joint degeneration. 3. Mild glenohumeral chondromalacia.
On August 22, 2018, Carmer saw Brendan Patterson, M.D., an orthopedic surgeon with the University of Iowa Hospitals & Clinics (“UIHC”), complaining of aching, burning, and pins and needles pain in her right shoulder. Carmer reported the pain woke her at night and increased with lifting, reaching, and internal rotation of her arm, the pain was greatest at the lateral aspect of her shoulder, and she was experiencing intermittent numbness that radiates from the mid-forearm to the long, ring, and small fingers of her right hand. She was working with restrictions while using a sling.
Dr. Patterson assessed Carmer with a right shoulder full-thickness rotator cuff tear, opined the work incident was a significant factor in her current findings and need for treatment, discussed surgery after getting her blood pressure under better control with her primary care provider, discontinued the sling to avoid stiffness, discontinued her hydrocodone, and prescribed physical therapy for gentle shoulder mobilization.
On December 6, 2018, Dr. Patterson performed right shoulder arthroscopy rotator cuff repair, open subpectoral biceps tenodesis, “extensive debridement,” and subacromial decompression on Carmer.
On December 19, 2018, Dr. Patterson imposed restrictions of no lifting over five pounds and no repetitive lifting or reaching.
On February 5, 2019, Nordstrom offered Carmer alternate modified work at Horizons. Carmer accepted the offer on February 8, 2019, and she sat at the front desk and answered the telephone at Horizons.
Carmer last worked for Nordstrom at Horizons on or about February 27, 2019. Carmer reported her employment ended after an incident with the Cedar Rapids Police Department, which caused her mental distress, noting she was experiencing blood pressure problems and migraine headaches. Carmer admitted at hearing that she was not off work due to her shoulder. Carmer’s family physician and counselor restricted her from working due to the acute anxiety and stress caused by the incident with the police. She has not alleged she sustained a mental health injury as a result of her work at Nordstrom. Her absence from work after February 27, 2019 was not due to her right shoulder injury. No physician had restricted her from working due to her right shoulder injury after Dr. Patterson released her from care.
On May 3, 2019, Nordstrom terminated Carmer’s employment.
On May 8, 2019, Carmer attended an appointment with Dr. Patterson. Patterson documented Carmer was doing well overall, her pain was minimal, her shoulder felt very comfortable, and she had improved with physical therapy.
Dr. Patterson opined Carmer had reached maximum medical improvement and released her without restrictions, with use of her shoulder as tolerated, to be careful with her shoulder, and to avoid excessive heavy lifting. Using the Guides to the Evaluation of Permanent Impairment, 5th Ed., Dr. Patterson assigned Carmer a 4% upper extremity or 2% whole person impairment, noting the rating “is the result of loss of shoulder flexion 1% per figure 16-40, loss of shoulder abduction 2% per figure 16-43, and loss of shoulder internal rotation 1% per figure 16-46,” which he converted to the whole person using Table 16-3.
Carmer delayed seeking employment after her last appointment with Dr. Patterson, due to problems with her mental state.
On September 10, 2019, Mark Taylor, M.D., an occupational medicine physician, conducted an independent medical exam for Carmer. Dr. Taylor opined Carmer’s right shoulder injury was directly and causally related to the work incident.
Dr. Taylor did not recommend additional treatment and found she reached maximum medical improvement at the time of her last appointment with Dr. Patterson on May 8, 2019. Dr. Taylor opined she would qualify for 10% right upper extremity impairment related to decreased motion. 10% upper extremity impairment converts to a 6% whole person impairment.
Dr. Taylor recommended restrictions of no lifting over 30 pound with both arms together, any lifting should occur with the right arm as close to her body as possible, no lifting more than 15 to 20 pounds above chest level, rare overhead reaching with the right arm, occasional forward reaching with the right arm, and to avoid forceful pushing and pulling-type movements with the right arm.
Carmer testified after her surgery she started experiencing pain in her left arm, which she ignored and tried to push through. She had never had a problem with her left side before. She believes her symptoms got worse in 2020 and not in 2019 because while her shoulder hurt, it was not that bad, and in early 2020 it became worse. She was using her right arm close to her body and she started relying on her left upper extremity more for her activities of daily living. Carmer started using her left arm for driving, brushing her teeth, and putting on her makeup.
In fall of 2020 Carmer requested medical care from Nordstrom. She had not previously requested additional medical care from Nordstrom after Dr. Patterson release her from her care. She testified she did not know she could request treatment before because she had been released from care.
On January 8, 2021, James Milani, D.O. did an IME for Nordstrom and issued a report on January 21, 2021. On exam, Dr. Milani found Carmer passive range of motion with her left upper extremity to be a little better than her active range of motion, but noted she reported pain throughout all range of motion, but her pain was not as bad for internal and external rotation when she had her elbow at her side.
Ultimately Dr. Milani listed a diagnosis of left shoulder pain “etiology uncertain: Most likely contributor to pain is underlying degenerative changes and/or progressive underlying systemic inflammatory arthritis/rheumatologic disorder that has not been diagnosed yet. It appears she has an advancing destructive joint disease/rheumatologic etiology that is affecting more than just her left shoulder.” Dr. Milani opined Carmer’s left shoulder symptoms were not causally related to the work injury, referring back to statements in the discussion section of his opinion, and he assigned no impairment rating.
David Segal, M.D. conducted an IME and issued his report on January 27, 2021.
Dr. Segal documents she started doing more the summer of 2019, including landscaping and that her left shoulder started bothering her more as she used it to protect her right shoulder.
Dr. Segal diagnosed her left shoulder with left shoulder arthropathy caused in part by overuse and compensation due to the right shoulder injury and noted Carmer’s signs and symptoms are consistent with rotator cuff tendinopathy or tearing.
Dr. Segal found Carmer reached MMI for her right shoulder on December 6, 2019, one year after surgery when the symptoms stabilized. For her left shoulder, Dr. Segal opined Carmer’s left shoulder had not been properly evaluated and that she was probably NOT at MMI. In the event she did not seek additional treatment, Dr. Segal opined she reached MMI one year after her shoulder symptoms stabilized.
For total strength deficit, Dr. Segal assigned a 12% impairment to the left upper extremity, which he converted to a 7% whole person impairment, and a 15% impairment to the right upper extremity, which he converted to a 9% whole person impairment.
For both shoulder, Dr. Segal assigned an impairment rating for pain causing impairment beyond the limitation in range of motion and strength, particularly with working overhead, and added an additional 3% whole person impairment to each shoulder, for unaccounted for pain under the range of motion and weakness values. Dr. Segal combined the values and assigned a 17% whole person impairment for the left shoulder and a 20% whole person impairment for the right shoulder, for a combined 34% whole person impairment.
Dr. Segal recommended permanent restrictions of no lifting overhead, lifting to waist height with both arms up to 10 pounds frequently and 11 pounds to 30 pounds rarely, lifting to shoulder height with both arms up to 10 pounds frequently and 11 to 30 pound rarely, repetitive lifting with the noted weight restrictions to tolerance, carrying up to 10 pounds up to 50 feet frequently on wheels, carrying 11 to 40 pounds up to 50 feel rarely on wheels, pushing and pulling with 20 pounds of force frequently, pushing and pulling with 21 to 40 pounds of force rarely, and no pushing and pulling with greater than 40 pounds of force, and fine motor limited due to pain in arms.
Dr. Segal recommended additional evaluation of the left shoulder by an orthopaedic surgeon with imaging and possible treatment, and reevaluation of the right shoulder.
After receiving Dr. Segal’s IME report, Dr. Milani provided a rebuttal opinion disagreeing with Dr. Segal.
At the time of the hearing Carmer was working full time for Keystone, a senior independent living center, as a concierge earning $11.33 per hour. She sits at the front desk, delivers newspapers, places emergency calls for medical care, assists residents with opening and closing blinds and using the television, pours coffee and puts on lids for breakfast with her left hand, and uses a hokey sweeper. Carmer reported she loves her job, and she does not have any physical difficulty performing her job.
Each side in the case had expert opinions supporting their position on whether the left shoulder problems were a sequela from the accepted right shoulder work injury. Both the Deputy at the trial level and the Commissioner who issued the appeal decision sided with the Claimant.
Therefore, the Carmer v. Nordstrom, Inc. case stands as support for the idea that overusing one body part to protect an injured body part can result in a compensable work injury.
The Deputy and Commissioner also both analyzed the 2017 legal changes, and rejected the argument that each of the Claimant’s shoulder injuries should be analyzed separately and only compensated on a scheduled basis. Instead, the Deputy and Commissioner accepted the Claimant’s arguments that the two shoulder injuries should be assessed together and compensated under the more valuable unscheduled analysis. Therefore, the Claimant was awarded 70% industrial disability.