BEFORE THE IOWA INDUSTRIAL COMMISSIONER
JAMES LEHRMAN,
Claimant,
VS. File No.
770825
MIDWEST SERVICE COMPANY, A R B I T R
A T I O N
Employer, D E C I
S I O N
and
AMERICAN Mutual INSURANCE CO.
Insurance Carrier,
Defendants.
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by James
Lehrman, claimant, against Midwest Service Company, employer, and
American Mutual Insurance Co., insurance carrier, to recover
benefits under the Iowa Workers' Compensation Act as a result of
an injury sustained on July 23, 1984. This matter came on for
hearing before the undersigned deputy industrial commissioner
July 1, 1988 and was considered fully submitted at the close of
the hearing. The record in this case consists of the testimony
of claimant, Linda Lehrman, his wife, Phyllis Sylvia Smith.,
Deborah Hanson, Vikki Maseun, and Cecelia Blaskovich; joint
exhibits 1 through 32, inclusive; and claimant's exhibits 33, 34
and 35.
In addition, claimant filed an application to amend the
hearing assignment order and in support thereof called as
witnesses claimant and Sylvia Smith. The application was denied
as the hearing assignment order was not issued by the undersigned
and therefore is not subject to modification by her. See
Clousing v. Rosenboom Machine & Tool (Appeal Decision filed May
15, 1989). However, claimant was permitted to make a record on
the issue in the event of an appeal.
ISSUES
Pursuant to the prehearing report and order submitted and
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 2
approved July 1, 1988 the following issues are presented for
resolution:
1. Claimant's entitlement to healing period benefits for
the periods from December 18, 1985 to September 14, 1986, and
June 1, 1987 to June 22, 1987.
2. The extent of claimant's entitlement to permanent
partial disability benefits; and
3. Claimant's entitlement to certain medical benefits under
Iowa Code section 85.27.
FACTS PRESENTED
On July 24, 1984, claimant was injured in a collision with
another semi which resulted in the demise of the other driver.
Upon hospital admission, W. P. Isgreen, M.D., consulting
neurologist, noted his impression as: "Multiple trauma center
with fractured odontoid and pedicles of C2 with evidence of very
discrete intracerebral hemorrhage on the right and with left leg
paresis and hyperreflexia." (Joint Exhibit 11) Claimant, who had
no independent recollection of the accident, underwent a fusion
on July 25, 1984 at Cl-C2. Mrs. Lehrman recalled claimant was
completely bedridden for approximately ten days and hospitalized
for approximately one month.
Mrs. Lehrman testified that in approximately October 1984
claimant began having violent temper outbursts that he "could not
control," a behavior pattern he had not shown prior to his
injury. Mrs. Lehrman described the problems claimant had
sleeping, with headaches, and reliving the accident. Mrs.
Lehrman explained that when they began to discuss claimant's
return-to-work, claimant began to think of different careers and
eventually decided to try to return to school and began an
electronics course at Western Iowa Technical College in September
1985. Mrs. Lehrman testified claimant was a very good student
who got A's and B's and described claimant as a "compulsive
perfectionist" who was "diligent" in his home studies and
extended a special effort with his school work.
Mrs. Lehrman recalled that in December 1985, claimant
developed a "very bad headache, "broke down," and was
hospitalized after which he began receiving regular psychological
counseling. Mrs. Lehrman stated that after claimant was
discharged, he was better for awhile but then "school was too
much" and he began talking about quitting. Mrs. Lehrman
testified she "pushed" at claimant to stay in school but he
eventually left in April 1986. Mrs. Lehrman stated claimant
continued with his counseling sessions but "lost his temper in a
significant way
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 3
about once per month" during which he was unreasonable and, at
times, violent.
Mrs. Lehrman recalled an incident on May 5, 1987 which
involved an argument between claimant and their daughter.
Claimant "walked out" on the family at approximately 11:00 p.m.
and they received a call from the police department at
approximately 3:30 a.m. reporting that the police were holding
claimant who, although he could recall who he was, could not
recall why he left home. Mrs. Lehrman also recalled another
incident later that same month when claimant, who would not go to
a family picnic, left a note for the family that it was the "last
time you'll ever see me." Mrs. Lehrman stated she "signed a
warrant with the sheriff," learned claimant had "wiped out the
checking account," she called all of claimant's health care
providers and that when claimant was eventually found, he could
not recall where he had been but asked to be taken "where [he]
could get help." Claimant was subsequently admitted to Marian
Health Center.
During the summer of 1987, claimant was studying for the
insurance exam to become a licensed agent. Although he
eventually passed the exam, Mrs. Lehrman stated claimant "has
done nothing" with it because of a lack of enthusiasm and a fear
of rejection. In September 1987, the Lehrmans moved to LeMars
and claimant began employment at the A.S.C.S. in October of 1987
as a temporary worker measuring farm fields. Claimant liked the
work and hoped it would become permanent but he was laid off from
the job in May 1988. Mrs. Lehrman stated that since claimant
lost his employment he has applied at numerous places but has not
had any offers of employment from any of them. Mrs. Lehrman
recited current incidents of troublesome behavior on claimant's
part and expressed her opinion that claimant needs to continue
his psychological counseling sessions.
On cross-examination, Mrs. Lehrman acknowledged that before
the family moved to LeMars, they lived next door to claimant's
father and that this caused "a lot of stress, particularly during
the last four years they were there." Mrs. Lehrman stated that
after claimant's accident the relationship between the two
families deteriorated and that there were "too.many problems."
Mrs. Lehrman denied, however, that these problems were the "main
stress" in claimant's life.
Claimant testified that prior to 1984 he garnered most of
his income either as a truck driver or as a laborer and that he
particularly liked the "freedom of driving trucks." Claimant
stated that with the weakness he has on his left side both he and
his physician felt it better he not return to truck driving.
Claimant explained that he left the electronics course work as he
felt he was not able to mentally handle the work; that he found
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 4
it "demoralizing to keep house, cook and babysit"; and that he
lost interest in insurance work while he was employed with
A.S.C.S., but that since his layoff from the employment he has a
renewed interest in it. Claimant opined, however, that he
"probably would not be successful at it" and if he wasn't, it
would bother him. Claimant described his health prior to the
accident as "very good" with no limitations.
Sylvia Smith, who described herself as a psychotherapist at
Great Plains Mental Health Clinic doing family, individual, group
and marital counseling and therapy, testified that her first
contact with claimant came on May 30, 1987 after claimant
experienced an episode of psychogenic amnesia when he left home
and appeared in Spirit Lake now knowing who he was or where he
had been. Ms. Smith reported, however, that claimant had been
receiving individual therapy from Howard H. Marty, Ed.D., a
licensed psychologist, beginning December 19, 1985 when claimant
was admitted to the hospital because of great distress and that
claimant was being treated on a diagnosis of reactive psychosis
(298.80) which affects his "entire life and all those around
him," a condition which "waxes and wanes." Ms. Smith described
claimant as having difficulty feeling confident to return to
school or the job market, an inability to maintain eye contact,
an inability to assert himself with his family, having confusion
and a confusion of thinking, and having difficulty relating to
people due to a lack of confidence and an emotional instability
to maintain relationships. Ms. Smith stated that claimant reacts
to stress by withdrawing and running, that he does irrational
things and then "truly cannot recall" what he has done. Ms.
Smith stated that claimant had no problems prior to his injury,
that she meets with him weekly to discuss his plans for the
future, both vocationally and socially, and.that it is intended
that the sessions will continue as they are necessary to treat
claimant's condition.
On cross-examination, Ms. Smith acknowledged claimant had a
long-standing conflict with his father causing "stress" but
asserted that the conflicts have escalated since claimant's
accident as claimant,. as a result of the accident and his
illness, cannot "deal with his stressors." Ms. Smith stated that
claimant cannot handle the "normal breadwinner kind of thing"
that he was capable of handling prior to the accident.
Deborah Hanson, who identified herself as a vocational
rehabilitation counselor for the state of Iowa, testified that
she first met with claimant in the summer or fall of 1985 to
review claimant's options and to assist him in determining his
vocational alternatives and that she last saw him during the
summer of 1986. Ms. Hanson recalled that she counseled claimant
once he enrolled in school and that academically he did very well
but that he was preoccupied with perfection and putting "a lot of
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 5
extra pressure on himself." Ms. Hanson found that the
"enrollment was taking too much out of him," that it became
detrimental to his well-being and that she was supportive of his
decision to leave.
Ms. Hanson testified she reviewed claimant's physical and
mental records and opined that claimant's barriers to return him
to competitive employment included his cervical impairments, his
left side weakness, "soft tissue and brain swelling" and although
claimant is bright and intelligent, the patterns he has developed
concerning his emotional stability also present a barrier. Ms.
Hanson stated that while claimant may have acquired his insurance
license, she would question his ability to actually sell
insurance because of the pressure of "commission only sales."
Ms. Hanson testified that employers would be hesitant to hire
claimant knowing of his emotional problems and his fear of
dealing with stress.
Vikki Masuen, who identified herself as claimant's
sister-in-law, testified she is the head of the price support
unit for the Plymouth County A.S.C.S., and that the A.S.C.S.
hired claimant on a temporary full-time basis to perform
measurements to insure farmers were in compliance with what was
being reported. Ms. Masuen stated that most of these
measurements were done in the office from photographs, although
claimant would "sometimes" go out into the field. Ms. Masuen
testified claimant lost his employment on May 30, 1988 due to a
reduction in force when budgetary restraint caused a lack of
funds and that there is no assurance the A.S.C.S. will be able to
hire any temporary employees in the future. Ms. Masuen stated
that she "could tell" claimant was having problems on certain
days when he became "moody," "quiet," and "wanted to be left
alone." Ms. Masuen opined that claimant had no psychological
problems prior to his accident.
Cecelia Blaskovich, owner of Medisult, Ltd., testified she
met with claimant on the request of defendant insurance carrier
to review claimant's medical treatment, manage the care and
assist claimant in finding employment or fulfilling a vocational
rehabilitation plan. Ms. Blaskovich found claimant to have
marketable transferable skills and that based on information she
"fed into the computer," claimant would be capable of such
employment as hotel management, retail sales, housekeeper,
registered nurse, meat packer, air traffic controller, payroll
clerk, insurance claims adjuster, and heavy equipment operator.
Ms. Blaskovich stated she fully considered claimant's mental and
emotional problems in coming up with this list of jobs for
claimant.
Howard H. Marty, Ed.D., counseling psychologist on the
staff of Plains Area Mental Health Center, testified he began
treating
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 6
claimant after claimant's December 19, 1985 hospitalization. Dr.
Marty explained his initial diagnosis was brief reactive
psychosis, but that within a short time it changed to adjustment
disorder with depressed mood because:
A. First of all, the first diagnosis of brief reactive
psychosis with an emphasis on the brief -- it does not last
long. I think I can accurately say that several of these
other occasions when Jim has had his distressful times, that
initial diagnosis would, again, have been applied during
those distressful times.
So it isn't so much an upgrading or downgrading as it is
a change. The -- the brief reactive psychosis is over, and
now we need a diagnosis to fit what is going on when the
psychosis is over. So we -- we used that at that time --
and I'm not sure that's what they're still using. I would
guess they may be using something else by now, but we used
adjustment disorder with depressed mood.
Q. All right. I see that there's an implication in this
diagnosis that this patient was suffering from depression;
is that right?
A. Yes. Yes.
Q. And that depression was, in fact, a cause of the
diagnosis which is brief reactive psychosis. Is that a fair
statement, just a more severe type of depression?
A. Well, if it had only been the depression, we probably
would have used a depressive diagnosis. But there was more
to it than the depression, you know, with the -- being out
of touch with reality, not remembering, and all these kinds
of things that were going on with Jim at that time
Q. Okay.
A. -- that caused us to use the brief reactive psychosis
diagnosis rather than just a depressive diagnosis.
(Marty Deposition, Joint Exhibit 27, pages 27-28)
Dr. Marty described the treatment plan which was developed
to reduce claimant's anxiety, to increase his self-esteem, to
help him relate more comfortably to a career change and to
increase his assertiveness to enable claimant to relate to his
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 7
father in a.more adult manner. Dr. Marty opined that:
In my mind, there is no doubt but what was going on in Mr.
Lehrman at the time of this hospitalization in 1985 was
related to the accident that took place in July of 1984.
Now, like I said earlier, I did not know Jim before this
time. But from what I know and what I experienced and what
I took as a history and what was going on in his life then,
there is no doubt in my mind but what there's a relationship
between these two.
(Marty Dep., Jt. Ex. 27, p. 11)
Dr. Marty testified:
Q. Based on what you knew of Mr. Lehrman from your -your
treatment and your evaluations of him, what do you think is
the likelihood that he would be able to complete some sort
of educational training program successfully?
MR. DECK: I object to that. There is no foundation. It's
calling for speculation on the part of this witness.
MS. HIGGS: Go ahead and answer, Doctor.
THE WITNESS: Well, I think it will depend a lot on what the
field is. He has -- With the depression he has had and has
battled with during the time I worked with him, I would
think academic schooling would be -would be difficult for
him. If it were more a vocational training or that type of
work in some field that he had a more intense interest in, I
think it would be very likely he could be successful.
(Marty Dep., Jt. Ex. 27, pp. 15-16)
Asked his opinion on claimant's ability to "go out and find
a job, present himself to perspective employer s to seek work,"
Dr. Marty responded:
Well, with his -- with his personality profile, with his
rather passive personality traits, he has some difficulty in
asserting himself and presenting himself in a dynamic way in
applying for jobs. So he's -- To that extent he is somewhat
limited, plus he has the physical limitations from the
accident, however severe those might be, plus he's had the
depressive features
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 8
that I have seen off and on in him, especially when I was
working with him, which made it difficult for him to go out
at that time. Now, what's happening since then, I don't
know.
(Marty Dep., Jt. Ex. 27, pp. 17-18)
Dr. Marty "speculated" that claimant's impairment as the
result of his psychological injury would be 20 percent of the
body as a whole.
When asked whether claimant's family problems was the main
stress in claimant's life, Dr. Marty stated he:
would have a hard time saying that's the main stressor in
his life. I've worked with a lot of people who have
difficulty getting along with their parents. That doesn't
mean that's the main stressor in their life. May be a big
factor, but it doesn't mean it's the main thing.
(Marty Dep., Jt. Ex. 27, pp. 36-37)
Dr. Marty testified:
Q. Doctor, could any of the family stresses that we've
talked about and that Mr. Deck has questioned you about be
related to the fact that Mr. Lehrman was injured in the
truck accident?
A. I think so. I think very much so, yeah. His being out
of work, not being the income producer for the family, all
the time that it took for healing and all, and his wife kind
of took over things during this time of his incapacitation,
I think it could be very much a factor.
(Marty Dep., Jt. Ex. 27, p. 43)
Gerald A. Brooks, M.D., Director of Inpatient Psychiatric
Services at Marian Health Center, testified that he admitted
claimant to the hospital on June 1, 1987 and explained:
Mr. Lehrman had been hospitalized in LeMars and was referred
here by -- I don't recall if it was Dr. Powell or Sylvia
Smith. Probably both. Would you like the details of --
Q. Yes, please.
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 9
A.-- the admission there? He had left a suicide note in his
home in LeMars- He had then disappeared, showed up the next
day in the emergency room, apparently had overdosed. He was
amnestic for the event. And this -this amnesia had occurred
a few weeks prior to that, and he had had several -- in the
past couple of years, he had had several episodes of which
were diagnosed as as [sic] depression or psychotic episodes
and so he was referred here for evaluation. At the time he
was referred, they felt that he might be suicidal.
(Brooks Dep., Jt. Ex. 28, pp. 3-4)
Dr. Brooks arrived at a primary diagnosis of psychogenic
amnesia on the basis that:
I think it was a -- there were myriad factors here. I think
that Jim is a person that has had psychological problems for
a long time. And I think the accident was Well, let me
back up a little bit. I think he had as all of us have
some psychological problems and we make peace with them one
way or another, and I think Jim had. And then when this
accident occurred, it caused a -- an exacerbation of all
problems and it created new ones and it really -- and then
led to a deterioration of his psychiatric condition.
Details, for one thing, his job. He -- Jim is a person
of very -- of low self-esteem, very insecure, doesn't feel
as good as other people. And he had managed some kind of --
of equity with other people in his job. He felt as good as
anyone else. He did a good job, and he -- and then later he
lost that, it put him into a position of having to deal more
directly with some other psychological problems that held
carried for a long time.
(Brooks Dep., Jt. Ex. 28, pp. 9-10)
Dr. Brooks testified:
Q. Do you have an opinion within a reasonable degree of
psychiatric certainty as to whether or not his
hospitalization in June of 1987 was caused in part by the
trauma and the sequel of problems that cascaded, if you
will, on his life after July of 1984?
A. Yes, I do.
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 10
Q. What is that opinion?
A. Well, I think that the accident was a contributor. I
really can't quantitate that, but I do feel it was a
contributor.
(Brooks Dep., Jt. Ex. 28, p. 11)
On cross-examination, Dr. Brooks reported that while
hospitalized, Dr. Schmitz, a licensed psychologist, administered
the Bender Gestalt, house-tree person drawing, the Minnesota
Multiphasic Personality Inventory, and the Rorschach test. Dr.
Brooks testified:
Q. Okay. Is it true, then, that you would agree with Dr.
Schmitz that this patient was suffering from manifestations
of depression and anxiety?
A. Yes.
Q. And that those -- that depression and anxiety was of
long-standing and chronic nature.
A. Yes.
Q. Would you agree with Dr. Schmitz that the depression and
anxiety preceded the auto accident in July of 1984?
A. Yes.
Q. In all likelihood it did; is that correct?
A. Yes.
....
Q. Okay. In other words, the periods of depression and
anxiety that this patient was experiencing were deep-seated
emotional problems with regard to this patient's
personality; is that a fair statement?
A. Yeah. I'm not sure what you mean by deep-seated, but I
think generally I could probably say yes. They were of long
duration, anyway.
Q. Okay. And I guess when I say deep-seated, I just mean
long-standing and chronic in nature.
A. Yes.
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 11
Q. And are you able to tell the commissioner with any
certainty as to how these -- this personality disorder or
these emotional problems developed in this patient?
A. Well, I see two - two things going on here. I see that
Mr. Lehrman's having emotional problems from a dysfunctional
family.
Q. Meaning what?
A. Meaning that his father was verbally abusive, according
to him -- and this was corroborated by the family members --
was very abusive, unaffectionate, very critical; very
condemning person; and that he grew up, then, with feelings
of lower self-esteem and insecure. And he didn't go on to
college. I think he just felt inadequate, generally. Quit
after a year, got a job as a trucker, and I think in that
way had made peace with a lot of his troubles until the
accident, which I think caused an exacerbation of a lot of
troubles and I think some new ones.
(Brooks Dep., Jt. Ex. 28, pp. 22-24)
The medical records of W. P. Isgreen, M.D., neurologist,
summarized claimant's immediate care following the accident as:
Patient was admitted to the hospital on 7-23-84 and
transferred to Rehab. on 8-1-84.
This was the first neurological admission to MHC for this
37-year-old man. He had been involved in a truck accident
the day of admission and was sent here because of concern
about his neck.
When he arrived, screening x-rays showed odontoid process
fracture extending through both the right and left pedicle
of C-1. CT scan showed right vertex hemorrhagic lacune.
His state at that time was a little bit difficult to
determine, except that the left leg was terribly weak. This
had been collapsed under the man in the cab and there was
some concern that this was ischemic neuropraxis.
The man was stabilized and Dr Kleider of Neurosurgery
dealt with the odontoid fracture with surgical intervention
48 hrs. after admission, on the 25th. He was then fit with
four poster collar.
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 12
Examination at a more leisurely time later showed
extremely hyperactive reflexes in the left leg with crossed
adductors bilaterally, but being elicited more strongly by
right-sided stimulation. My concern was cervical contusion
at the time of his odontoid fracture, although there were no
sensory problems to go along with that. Sensory evoked
response was abnormal with no response on the left leg, and
markedly delayed responses on the right leg, both of which
suggested cord involvement. Nerve conductions in the left
leg were normal and the EMG itself revealed no denervation.
Changes were a little bit too fast for lower motor neuron
lesions and it was suspected, however, that the problem may
have been upper motor in origin.
In any event, there was nothing further surgically to
fix. The odontoid fracture was stable. He began
physiotherapy and rehabilitation with emphasis on the left
leg.
The acute need having passed, the man was passed to
rehab. for further treatment.
Condition on transfer is vastly improved.
(Jt. Ex. 11)
On December 21, 1984, Dr. Isgreen reported that claimant
was getting psychologically dependent on his cervical collar and
that claimant's "psychological state is really the problem at the
moment." Dr. Isgreen opined that he was not "so sure that it is
wise for him (claimant) to think about getting back into
trucking."
Following his final evaluation of claimant on October 30
1985, Dr. Isgreen opined:
The man really shows difficulties in three spheres:
The first is that of psychological impairment, and one
can see that in the man's concentration, his mood, his
outbursts of temper, and his sexual dysfunction.
The second sphere is that of the cervical cord and given
the indication one can see with ocular motility, he had at
least contusion in the high posterior cervical area with a
so-called contusion cervicalis, and that has resulted in the
left side of his body not feeling as does the right with
weakness, maladroitness, and the somatosensory syndrome that
we have dealt with over the months.
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 13
The third problem is that of cervical mobility.
If one goes after the various parameters, then I think a
number of 18 to 20 per cent permanent-partial impairment is
not either overly generous not parsimonious. certainly at
this point I think the man has reached maximum medical
recovery, though I expect effectively, the left sided
symptoms to improve, as they certainly have in the past.
The cervical mobility, however, while it only adds up to
less than five per cent by calculating the numbers,
effectively, the impairment is much greater, and the man
truly has changed the whole angle of his carriage because of
the cervical problem.
The emotional sphere is a more difficult thing on which
to get a handle. That, one almost does by the change in the
pocket and how much is due to premorbid problem and how much
is due to the accident, I can't say. All one knows is that
he has problems now that he didn't have before. I am not
talking so much about his ability to concentrate or his
memorizing problems. It's more of a tone feeling that I get
from him.
(Jt. Ex. 11)
APPLICABLE LAW AND ANALYSIS
An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of the
employment. Section 85.3(l).
The parties do not dispute that on July 23, 1984 claimant
sustained an injury which arose out of and in the course of his
employment or that the injury is the cause of both temporary and
permanent disability. The essential issue presented for
resolution was the extent of claimant's entitlement to those
benefits. However, before that issue can be discussed, it is
first necessary to determine whether the medical treatment
claimant has received for his psychological problems came about
as a result of the work injury of July 23, 1984.
The claimant has the burden of proving by a preponderance
of the evidence that the injury of July 23, 1984 is casually
related to the disability on which he now bases his claim.
Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A
possibility is insufficient; a probability is necessary. Burt v.
John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732
(1955). The
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 14
question of casual connection is essentially within the domain of
expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa
375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered with
all other evidence introduced bearing on the casual connection.
Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need
not be couched in definite, positive or unequivocal language.
Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However,
the expert opinion may be accepted or rejected, in whole or in
part, by the trier of fact. Id. at 907. Further, the weight to
be given to such an opinion is for the finder of fact, and that
may be affected by the completeness of the premise given the
expert and other surrounding circumstances. Bodish, 257 Iowa
516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co.
, 261 Iowa 352, 154 N.W.2d 128 (1967).
Iowa Code section 85.27 provides:
The employer, for all injuries compensable under this
chapter or chapter 85A, shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies therefor and shall allow reasonably
necessary transportation expenses incurred for such
services.
It would appear that defendants dispute the question of
casual connection on the basis that claimant, at the same time as
well as prior and subsequent to the injury, was also experiencing
family problems which were a source of stress in his life.
Defendants would assert that it was this family conflict which
acted as the precipitator or "main stressor" in bringing about
the need for claimant's psychological counseling.
It cannot be the subject of much dissention that claimant
was not living in a vacuum, absenting him totally from everyday
experiences of dealing with family, neighbors and non-employment
life and that as a consequence thereof, those things would not
play a part in his emotional stability. Clearly, claimant is not
a one dimensional being and this deputy could not be so naive as
to think that factors outside the employment life would not play
a part in one's mental health and well-being. Likewise, however,
one cannot be so foolish as to believe that a loss of livelihood
by an injury as serious as that sustained by claimant would not
result in some emotional upheaval. This must be particularly
true where the accident in which claimant was involved resulted
in the death of the other truck driver.
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 15
The Iowa Supreme Court in Blacksmith v. All-American, Inc.,
290 N.W.2d 348 (Iowa 1980) stated at 354:
A cause is proximate if it is a substantial factor in
bringing about the result. See Holmes v. Bruce Motor
Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974). It only
needs to be one cause; it does not have to be the only
cause. See Langford v. Keller Excavating & Grading, Inc.,
191 N.W.2d at 670.
No reasonable person could deny that claimant's work injury
was a cause of his seeking an receiving the continuing
psychological counseling. Nor could that reasonable person deny
that the work injury was not the only cause. The question thus
becomes, as the court stated in Blacksmith, whether or not the
work injury was a substantial factor in bringing about the need
for treatment.
Dr. Isgreen, claimant's treating neurologist, repeatedly
noted claimant's emotional problems in his progress notes and of
them stated: "The emotional sphere is a more difficult thing on
which to get a handle. That, one almost does by the change in
the pocket and how much is due to premorbid problem and how much
is due to the accident, I can't say." (Jt. Ex. 11) Dr. Isgreen
notes, however, that claimant now has problems which he did not
have prior to the accident.
Dr. Marty, who was claimant's treating psychologist for
some period of time, causally connects claimant's emotional
problems to the motor vehicle accident of July 23, 1984. Dr.
Brooks, who saw claimant in his capacity as director of inpatient
psychiatric services, opined that claimant's work injury was a
contributor to his psychological problems while acknowledging
that claimant's depression and anxiety preceded the accident.
Sylvia Smith, who impressed this deputy as a witness by her
candor, demeanor and knowledge, opined that claimant's
personality imbalances are attributable to the motor vehicle
accident.
It is clear from the evidence that notwithstanding what
problems of a personal nature claimant may have had prior to his
injury, he was able to cope with those problems in a reasonable
and rational manner. It is equally clear that subsequent to the
work injury, claimant has been unable to cope without the need
for treatment. Claimant had no prior history of psychological or
psychiatric imbalance requiring treatment prior to the injury.
Claimant had no history of the psychogenic amnesia that he has
exhibited on a number of occasions since the injury. No expert
has suggested that claimant is in any way malingering or
exaggerating his problems. Claimant was sincere in his demeanor
while testifying. Mrs. Lehrman, who has lived with claimant as
his wife for over sixteen years, stated that the couple had a
stable
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 16
relationship with no psychological or psychiatric counseling
needed and that there was no threat of leaving, suicide, or child
abuse, verbal or physical, prior to claimant's injury.
Consequently, it can only be concluded that the greater
weight of evidence, both medical and nonmedical, leads to the
conclusion that prior to the injury claimant was able to deal
with the stresses of life but that it became impossible to deal
with them after the injury and that therefore the injury was a
substantial factor in bringing about the need for
psychological/psychiatric treatment. Accordingly, claimant's
treatment is found to be casually connected to the injury, the
injury is found to be a substantial factor in bringing about the
need for treatment, and defendants are liable for the expenses
incurred in that treatment, pursuant to Iowa Code section 85.27.
Attention is thus turned to the extent of claimant's
stipulated permanent disability. Dr. Isgreen has opined that
claimant's permanent partial impairment, as a result of the
cervical problems, is 18 to 20 percent of the body as a whole.
Dr. Marty, once pressed, speculated that claimant's psychological
problems resulted in a 20 percent permanent partial impairment to
the body as a whole.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to the
injured employee's age, education, qualifications, experience and
inability to engage in employment for which he is fitted. Olson
v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).
Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by a
medical evaluator does not equate to industrial disability. This
is so as impairment and disability are not synonymous. Degree of
industrial disability can in fact be much different than the
degree of impairment because in the first instance reference is
to loss of earning capacity and in the latter to anatomical or
functional abnormality or loss. Although loss of function is to
be considered and disability can rarely be found without it, it
is not so that a degree of industrial disability is
proportionally related to a degree of impairment of bodily
function.
Factors to be considered in determining industrial
disability include the employee's medical condition prior to the
injury, immediately after the injury, and presently; the situs of
the injury, its severity and the length of healing period; the
work experience of the employee prior to the injury, after the
injury and potential for rehabilitation; the employee's
qualifications intellectually, emotionally and physically;
earnings prior and subsequent to the injury; age; education;
motivation;
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 17
functional impairment as a result of the injury; and inability
because of the injury to engage in employment for which the
employee is fitted. Loss of earnings caused by a job transfer
for reasons related to the injury is also relevant. These are
matters which the finder of fact considers collectively in
arriving at the determination of the degree of industrial
disability.
There are no weighting guidelines that indicate how each of
the factors are to be considered. There are no guidelines which
give, for example, age a weighted value of ten percent of the
total value, education a value of fifteen percent of total,
motivation - five percent; work experience - thirty percent, etc.
Neither does a rating of functional impairment directly correlate
to a degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and then
added up to determine the degree of industrial disability. It
therefore becomes necessary for the deputy to draw upon prior
experience, general and specialized knowledge to make the finding
with regard to degree of industrial disability. See Peterson
v.Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985);
Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985).
Claimant was 41 years old at the time of hearing and a high
school graduate. During high school, claimant was an honor
student and demonstrated his intellectual prowess in testing
subsequent to his injury and in his performance while enrolled at
Western Iowa Technical College in the electronics repair program
where he received A's and B's before having to abandon the
program due to his psychological problems. Claimant
independently secured his license to sell insurance but has been
unable to turn this success into a career success.
Claimant appears to have had a scant medical history prior
to this injury but his health, both mentally and physically, has
been devastated since July 23, 1984. Claimant continues to have
left-sided weakness and a cervical impairment which precludes him
from truck driving and lifting. Claimant also suffers from
intrinsic asthma which, although not caused by his work injury,
would further limit employment possibilities.
Despite the best efforts by rehabilitation professionals,
both through the State of Iowa Department of Vocational
Rehabilitation and the private services of Medisult, Ltd.,
claimant has no identifiable transferable job skills. Claimant
has been unable to formulate a realistic plan for his vocational
future. Any plan which claimant has formulated has not been
successfully carried out to its natural end. Claimant has sent
and circulated his job resume, has had personal interviews, and
applied for jobs but has been unsuccessful in securing any
employment outside of the temporary work with A.S.C.S. at the
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 18
behest of his sister-in-law. The record does not show that
claimant developed any transferable skills from this position.
The undersigned was not moved by the testimony of
defendants' expert, Cecelia Blaskovich. Indeed, her testimony
somewhat bordered on the ridiculous. To think that claimant, who
sustained injuries in an accident that necessitated a month-long
hospital stay, who has had at least two psychiatric
hospitalizations, who has had psychogenic amnesia, who continues
to receive regular counseling for stress and emotional disorders,
and who was unable to complete an electronics repair course at a
community college could succeed at, or even entertain the idea of
becoming an air traffic controller defies logic. Or, to think
that he could train successfully as a registered nurse causes one
to question this individual's thinking. This is particularly
true where Ms. Blaskovich worked with claimant over a number of
years and could never successfully place claimant in any
employment setting let alone in a professional setting. The
Medisult report of May 21, 1986 indicated claimant could return
to work in a non-threatening, low stress job. The undersigned
cannot conclude that many of the positions which Ms. Blaskovich
testified claimant would be capable of performing, would qualify
as non-threatening low stress jobs. Ms. Blaskovich's testimony
is given little weight.
Although claimant is obviously bright and intelligent as
well as motivated to secure employment, he also has barriers to
securing employment that may not be overcome. Deborah Hanson
admitted employers are hesitant to hire individuals knowing of
emotional problems. Claimant, who not only needs and has ongoing
psychological treatment, has had two psychiatric hospitalizations
and last had suicidal ideations when he was laid off from
employment due to budgetary limitations at A.S.C.S. This is
significant in light of the fact that claimant's loss of
employment was totally beyond his control and that this has been
the only employment claimant has been able to secure since his
injury.
Claimant's ability to enter a vocation by successfully
completing school is clearly questionable. Claimant could not
complete the Western Iowa Technical College program. Despite
securing his insurance license and his interest in real estate,
claimant has never sold a policy of insurance and his personality
traits make it unlikely that he would ever be able to.sustain an
employment effort in either of these areas. While Dr. Marty
testified claimant might be successful in a less academic
environment, claimant's cervical impairment would begin to play a
part there. The undersigned believes it would also be
questionable that claimant could succeed even in this
environment.
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 19
In Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899
(1935) the court, addressing the issue of the meaning of
disability stated:
What is "permanent total disability"? Does this clause
refer to "functional disability" or to "industrial
disability"?
For clearness we shall use the term "industrial
disability" as referring to disability from carrying on a
gainful occupation--inability to earn wages. By "functional
disability" we shall refer to the disability to perform one
or more of the physical movements which a normal human being
can perform.
....
It is obvious that "disability" here used cannot refer to
mere "functional disability",...
It is...plain that the legislature intended the term
"disability" to mean "industrial disability" or loss of
earning capacity and not a mere "functional disability" to
be computed in terms of percentages of the total physical
and mental ability of a normal man.
....
... [T]he Compensation law was passed for the purpose of
compensating the working man when injured. The loss which
this claimant suffered due to the injury which he received
while in the employ of the company is the inability to carry
on the work he was doing prior to the time of the injury, or
any work which he could perform. This man at fifty-nine
years of age, after thirty years as a street car motorman,
with little education, cannot find or hold a position that
would not require some manual labor, and, of course, due to
the condition of his back, he cannot perform such work. To
say that he might become a stenographer or a lawyer or a
clerk or a bookkeeper is to suppose the impossible, for a
fifty-nine-year old man, with no education, is not capable
of securing or filling any such position. His disability
may be only a twenty-five or thirty per cent disability
compared with the one hundred per cent perfect man, but,
from the standpoint of his ability to go back to work to
earn a living for himself and his family, his disability is
a total disability, for he is not able to again operate the
street car and perform the work which the company demanded
of him prior to the time of the accident.
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 20
A finding that there is some work that claimant could do
within the physical and educational limitations he has does not
foreclose the finding of permanent total disability. See Eastman
v. Westway Trading Corporation, II Iowa Industrial Commissioner
Reports 134 (Appeal Decision 1982); and Chamberlin v. Ralston
Purina, Appeal Decision filed October 29, 1987.
Although claimant has had some employment since his injury,
the undersigned does not believe that the employment with
A.S.C.S. is representative of employment regularly available in
the labor market. Considering then all of the elements of
industrial disability, claimant has established that he is
permanently and totally disabled from employment during the time
of his disability. See Iowa Code section 85.34(3). Benefits
shall commence July 23, 1984.
Accordingly, the issue of healing period benefits need not
be addressed.
FINDINGS OF FACT
Wherefore, based on all of the evidence presented, the
following findings of fact are made.
1. Claimant sustained an injury which arose out of and in
the course of his employment on July 23, 1984, when he was
injured in a collision with another semi which resulted in the
demise of the other driver.
2. The parties have stipulated and agreed that claimant's
injury is the cause of both temporary and permanent disability.
3. Since his injury, claimant has had episodes of
psychogenic amnesia, suicidal ideations, psychiatric
hospitalizations, and patterns of behavior disorder which have
required treatment and which claimant did not demonstrate prior
to his injury.
4. Claimant has an ongoing need for psychological
counseling.
5. Although claimant has sources of stress involving his
non-employment life, claimant's injury of July 23, 1984
constituted a substantial factor in bringing about the need for
psychological and psychiatric counseling.
6. Claimant is 41 years old and graduated from high school
as an honor student.
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 21
7. Claimant was enrolled in an electronics repair class and
was receiving A's and B's in that program until his psychological
problems forced him to withdraw from this course of study.
8. Claimant successfully studied and secured his insurance
license and has demonstrated his desire to sell insurance and
real estate.
9. Claimant's personality disorders make it unlikely that
he would be successful in his sales position.
10. Since his injury, claimant has been unable to secure
employment despite his best efforts as well as the best efforts
of rehabilitation professionals outside of temporary employment
with the Plymouth County A.S.C.S. which was secured at the behest
of his sister-in-law, who is head of the price support unit.
11. Claimant has an 18 to 20 percent permanent partial
impairment of the body as a whole due to cervical problems which
include a permanent impairment of cervical mobility and a
weakness on the left side which may or may not improve.
12. Claimant has a 20 percent permanent partial impairment
of the body as a whole due to his psychological/psychiatric
problems.
13. Claimant is precluded, as a result of the injury of
July 23, 1984, from engaging in employment for which he is fitted
by education and experience.
14. Claimant's psychological impairment makes it unlikely,
at this time, that he would be successful in retraining efforts.
15. Claimant is permanently and totally disabled from
employment during the period of his disability.
CONCLUSIONS OF LAW
Therefore, based on the principles of law previously
stated, the following conclusions of law are made.
1. Claimant has established that the medical treatment
which he sought and continues to receive as a result of his
psychological/psychiatric problems are casually connected to the
injury of July 23, 1984.
2. Claimant has established that he is permanently and
totally disabled from employment for the period of his
disability.
LEHRMAN V. MIDWEST SERVICE COMPANY
Page 22
ORDER
THEREFORE, it is ordered:
Defendants shall pay unto claimant weekly compensation at
the rate of one hundred ninety-seven and 70/100 dollars ($197.70)
per week, payable commencing July 23, 1984 and continuing
thereafter for so long as the claimant remains permanently and
totally disabled.
Defendants shall pay all disputed medical expenses and
shall continue to provide claimant with the needed psychological
counseling as provided by the Plains Area Mental Health Clinic.
Benefits that have accrued shall be paid in a lump sum
together with statutory interest thereon, pursuant to Iowa Code
section 85.30.
Costs of this action are assessed against defendants,
pursuant to Division of Industrial Services Rule 343-4.33.
Defendants shall file claim activity reports as requested
by the agency, pursuant to Division of Industrial Services Rule
343-3.1.
Signed and filed this 30th day of January, 1990.
DEBORAH A. DUBIK
DEPUTY INDUSTRIAL
COMMISSIONER
Copies to:
Mr Charles T Patterson
Attorney at Law
P 0 Box 3086
Sioux City IA 51102
Mr Paul W Deck, Jr
635 Frances Bldg
Sioux City IA 51101