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[T] Rouse v. H & S Roofing Co.3/26/2003
Workers' compensation claimant appeals from the district court's decision on petition for judicial review affirming workers' compensation commissioner's order regarding penalty benefits. The employer cross- appeals from the district court's order remanding to the agency for further factual findings regarding permanent partial disability. REVERSED AND REMANDED WITH DIRECTIONS.
Nathan Rouse appeals from the district court's decision on a petition for judicial review. He claims the court erred by not reversing the commissioner's failure to impose certain penalties. He also asserts the court erred in failing to reverse the commissioner's taxation of a share of intra-agency appeal costs to the worker. H & S Roofing Company and CNA Insurance Company (both "CNA") cross-appeal contending the district court's decision to remand to the agency for further factual findings regarding permanent disability was in error. We reverse and remand with directions.
I. Background Facts and Proceedings.
On November 25, 1997, Rouse fell from a scaffold and suffered a serious, complex fracture of a bone in his right lower extremity. Treating physician, Philip Deffer, M.D., performed successful surgery to anatomically realign the injury to claimant's ankle, which included application of hardware to fixate the displaced bone. Rouse was subsequently placed in a non-weight bearing cast.
On February 11, 1998, Dr. Deffer instructed claimant to begin range of motion exercises, placed him in a walker, and indicated he could put twenty to thirty pounds of weight on the affected leg. On March 13, 1998, Dr. Deffer indicated Rouse could begin full weight bearing. A month later, Rouse told Dr. Deffer he was doing well but was experiencing pain. Dr. Deffer placed claimant in an air stirrup splint and discontinued use of the walker. In May 1998, Rouse was referred to physical therapy. By the end of May, Rouse had returned to work as a roofer.
During early June of 1998, Dr. Deffer re-examined Rouse. His x- rays indicated appropriate alignment of the ankle. However, Rouse had limited range of motion and was restricted from running. Claimant returned to Dr. Deffer in April 1999 complaining of recurring pain. X- rays revealed that claimant might be developing early posttraumatic arthritis.
In early September 1998, Dr. Deffer examined Rouse for the purpose of offering a functional impairment rating for his right ankle. After the examination, Dr. Deffer opined that Rouse had suffered a thirty- seven percent lower extremity impairment. Later, Rouse obtained another impairment rating from Dr. Justin Ban. On April 12, 2000, Dr. Ban offered his opinion that Rouse had a thirty-six percent lower extremity impairment as a result of his injury.
Rouse filed his petition for workers' compensation benefits on September 17, 1998. CNA voluntarily paid Rouse healing period and temporary partial benefit compensation. Rouse was paid permanent partial disability benefits beginning June 7, 1998.
In October 2000, a deputy commissioner filed an arbitration decision. The deputy found Rouse had a thirty-seven percent impairment of his right lower extremity and accordingly was entitled to 81.4 weeks of benefits. The deputy concluded Rouse had already received the permanent partial, healing period, and temporary partial benefits which he was owed on his claim. In addition, a penalty of $1000 was assessed against CNA for untimely payment of weekly benefits. Both parties appealed.
In April 2001, the commissioner filed an appeal decision affirming the permanent partial disability award of thirty-seven percent to the lower extremity. The decision also affirmed the
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