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Dumire v. Second Injury Fund of Iowa9/14/2005
Normadge Dumire appeals from the district court ruling affirming the Iowa Workers' Compensation Commissioner's denial of her petition for Second Injury Fund (SIF) benefits. AFFIRMED.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
Normadge Dumire appeals from the district court ruling affirming the Iowa Workers' Compensation Commissioner's denial of her petition for Second Injury Fund (SIF) benefits. She contends the court erred in affirming the agency because the commissioner applied incorrect legal standards and the opinion was affected by errors of law, was unreasonable, demonstrated an abuse of discretion, and was not supported by substantial evidence in the record as a whole. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
Dumire filed a petition for SIF benefits on October 23, 2000, and a hearing was held before a deputy workers' compensation commissioner on April 12, 2001. Dumire claimed a first loss to her knee from a July 22, 1999 work-related injury and a second loss to her right hand and arm sustained at her job on May 23, 2000. There is no dispute that Dumire has some degree of permanent loss of use or impairment from the injury to her right hand and her claim against that employer settled prior to the hearing on her SIF benefit petition. The first injury is what is in dispute in this case.
Dumire testified before the agency that the prior injury to her right knee occurred while she was working as a certified nurse's aide (CNA) for Cedar Falls Lutheran Home. While she was escorting a patient to the bathroom the patient fell on Dumire's right knee causing a "pop" and immediate pain. Dumire received treatment from an occupational medicine physician, Dr. Kirkle, on two occasions. Dr. Kirkle diagnosed Dumire with a "right knee patellar contusion." Her treatment consisted of medication, restricted duty, and a couple of visits to physical therapy. Treatment of her right knee ended after the minimal physical therapy and she has not sought medical treatment for her knee since.
Despite not seeking further treatment, Dumire stated she continues to have persistent pain and swelling in her knee which she treats with ice packs. She testified that her knee was better at the time of the hearing than it was when she hurt it in July of 1999 but also claimed she cannot return to work as a CNA due to her knee problems.
At the direction of her attorney, Dumire went to see Dr. Justin Ban, a board certified disability examiner. In a written report dated September 6, 2000, Dr. Ban diagnosed Dumire as having right patellofemoral syndrome. Dr. Ban stated in his report that the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment defines "permanent impairment" as "one that has become static or stabilized during a period of time sufficient to allow tissue repair and one that is unlikely to change in spite of further medical or surgical therapy," and that according to those Guides "an impairment is considered permanent if unlikely to change substantially by more than 3% within the next year, with or without medical treatment." He opined that based on these criteria Dumire had not yet reached maximum medical improvement, her knee condition had not yet become stable, and it was entirely possible that with evaluation and treatment further improvement could occur. Dr. Ban recommended that Dumire be further evaluated by an orthopedic surgeon. He further stated that in the event Dumire refused treatment he could at that time on the basis of weakness in her right lower extremity assign her a functional impairment of twelve percent to her lower extremity and five percent to the whole person.
In a M
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