BEFORE THE IOWA INDUSTRIAL COMMISSIONER
DEANA ASKELSON,
Claimant,
vs. File No.
771130
J & M INC. OF BADGER, A R B I T R A
T I O N
Employer, D E C I S I O
N
and
F I L E D
UNITED FIRE & CASUALTY COMPANY,
MAR 29 1989
Insurance Carrier,
Defendants. INDUSTRIAL SERVICES
INTRODUCTION
This is a proceeding in arbitration brought by the claimant,
Deana Askelson, against her employer, J & M Inc. of Badger, and
its insurance carrier, United Fire & Casualty Company, 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 at
Fort Dodge, Iowa on January 18, 1989. A first report of injury
was filed on August 6, 1984. A final report was received on
March 5, 1985 which final report indicates that claimant was paid
14 weeks of temporary total/healing period benefits and 12.5
weeks of permanent partial disability benefits as well as medical
benefits in the amount of $19,245.68. The record in this
proceeding consists of the testimony of claimant, of Kelly
Gonder, of Norman E. Moon, and of Herbert Kersten, M.D., as well
as of claimant's exhibits 1 through 7 and defendants' exhibits A
through K as identified on the parties' respective exhibits
lists.
ISSUES
Pursuant to the prehearing report and the oral stipulations
of the parties at hearing, the parties stipulated that claimant
sustained an injury on July 23, 1984 which arose out of and in
the course of her employment which was the cause of temporary and
permanent disability for which claimant has been paid all
temporary total/healing period and permanent partial disability
benefits to which she is entitled. The parties agreed that the
only issue remaining to be decided is whether claimant is
entitled to payment of certain medical costs, that is, costs for
treatment with Douglas S. Parks, M.D., at Iowa Methodist Medical
Center and related care as care authorized by the defendants, as
care reasonable and necessary for the treatment of claimant's
condition, and as care, the costs of which are fair and
reasonable.
REVIEW OF THE EVIDENCE
Claimant is a 24-year-old single woman with one child. She
sustained burns on the right side of her face, right side of her
neck, chest and breast as well as on her stomach and the right
side of her trunk and right underarm when a broiler exploded
during the course of her work as a cook for the defendant
employer. Immediately subsequent to the injury, claimant was
hospitalized at Trinity Regional Hospital for approximately two
months during which time Herbert Kersten, M.D., a Dr. LeValley,
and a Dr. Miller treated claimant . Claimant testified that she
received skin grafts and physical therapy intended to relieve
tightness and pulling of the scar tissue in the upper arm area.
She stated that her skin grafts did not increase right arm
mobility, but "greatly improved" the skin's appearance.
Claimant expressed her belief that her face was discolored
subsequent to her burn injury and reported that she was
self-conscious about her burn following her hospital release. No
visible scarring or discoloration was observed on claimant's face
at hearing. Claimant reported that she could wear clothing on
the burned areas of her body only subsequent to her hospital
release, but that clothing irritated the burned areas. She
stated that discomfort prevented her from wearing a bra.
Claimant reported that she saw Ralph Cram, M.D., at the
University of Iowa Burn Unit in January, 1985. She stated that
Dr. Cram recommended dermabrasion treatment at least two years
subsequent to her injury. Claimant later saw Gerald P. Kealey,
M.D., at the University of Iowa Burn Unit. She reported that Dr.
Kealey did not recommend dermabrasion as her scarring was too
deep. He did give her names of physicians qualified to perform
dermabrasion, however. Claimant subsequently saw Douglas Parks,
M.D., who performed tissue expansion procedures at Iowa Methodist
Hospital. Claimant stated that the procedures were carried out
in the right lower arm, in the chest below the breast and on the
right side of her trunk in an attempt to normalize the skin's
appearance. She agreed that all areas on which the procedures
were performed were covered with clothing save for the lower arm.
Claimant reported that the tissue expansion procedures had
increased her movement in the arm and had improved her appearance
although the effect on her appearance had not been as beneficial
as she had hoped. She reported that the procedures had decreased
her problems with not being outgoing and that she no longer found
clothing irritating although it was still uncomfortable to wear a
bra.
Claimant agreed that she had not advised defendants that she
was treating with Dr. Parks, but for a casual conversation with
her own insurance agent. She stated that Dr. Parks' bill as well
as the anesthesiologist's bill remain unpaid. She agreed that
defendants had paid all Trinity Regional Hospital and University
of Iowa medical bills and agreed that she had advised the insurer
of her Trinity and University of Iowa care.
Kelly Gonder identified herself as a friend of claimant and
reported that prior to her injury, claimant had been outgoing,
but subsequent to her injury, claimant's personality changed.
She reported that claimant has now "gotten better" insofar as she
is able to interact with persons other than her close friends.
She reported that claimant continues to wear long-sleeved shirts
in hot summer weather.
Norman E. Moon testified that he is supervisor for workers'
compensation claims with the insurance carrier. He reported that
the insurer had relied upon August 12, 1985 and December 18, 1985
letters of Drs. Cram and Kealey respectively stating that
claimant required no further treatment but for possible
dermabrasion. He reported the insurer was first aware that
claimant was treating with Dr. Parks when defendants' counsel
inquired regarding mileage payments for treatment with Dr. Parks.
Moon indicated that neither claimant nor her counsel ever
contacted the insurer regarding care with Dr. Parks even though
claimant's workers' compensation claim had been filed in
September, 1986.
Herbert Kersten, M.D., identified himself as a general
surgeon practicing in the Fort Dodge area since 1952. Dr.
Kersten stated that, while hospitalized at Trinity Regional
Hospital, claimant had had contracture in the anterior fold of
the right axilla which he characterized as shrinkage of scar
tissue in front of the fold that goes from the chest to the right
arm. The arm was manipulated and stretched and then dressed away
from the body in order to minimize the web formation. Dr.
Kersten stated that such contractures are usually but not always
permanently controllable. Dr. Kersten stated that, after
claimant's skin grafts had healed, claimant had normal arm
motion, but needed to stretch the arm tissue uncomfortably to
achieve that motion. Dr. Kersten testified that, following
claimant's graft, she had minimal scarring on her face and neck,
but did have significant scarring on the chest wall and arm. Dr.
Kersten reported that claimant had second degree burns on her
face, neck and arm and extensive third degree burns on the side
of her chest and near the breast. Dr. Kersten stated that a
graft over a third degree burn is essentially numb, but does
produce permanent impairment of sensation.
Dr. Kersten characterized claimant's tissue expansion
procedure as corrective plastic surgery primarily done to correct
impaired function and not primarily done for appearance's sake.
Dr. Kersten reported that he had examined claimant on
January 9, 1989. He reported that claimant's chest area
extending under the arm and into the back was "close to normal
except for appearance." He stated there was no visible
contracture, but minimal scarring. He characterized the risk of
future contracture as a "diminishing probability as time goes
by." Dr. Kersten stated that the tissue expansion procedure does
not really improve the skin's appearance, but for eliminating the
underlying contracture so that the skin adapts a more normal
contour. Dr. Kersten opined that, if the record shows that
contracture was again trying to form, the tissue expansion
procedure was justified. He opined that severe burns permanently
change the body's appearance and thereby affect an individual's
self-image and confidence. He stated it was appropriate to work
with those changes in dealing medically with a burn victim.
On August 12, 1985, Albert E. Cram, M.D., reported that
under the AMA Guides to the Evaluation of Permanent Impairment
for skin disorders, claimant had a class 2 impairment
representing a 12% permanent impairment of the whole person. He
stated he did not anticipate any additional or future surgical
procedure, but had prescribed an overhead pulley system to help
claimant exercise the burn contracture in the axilla which
contracture he characterized as extremely mild. On January 31,
1985, he recommended claimant be considered for dermabrasion two
years post surgery.
On December 18, 1985, Gerald P. Kealey, M.D., Assistant
Professor of Surgery at the University of Iowa, reported that
claimant's burn injury to the right anterolateral thorax was
fully healed and that she had no loss of motion of the right
shoulder. He reported that she had no scar contracture or loss of
function of the right upper extremity, but did have some
hypopigmentation of the grafted area over the right breast and
right anterior chest. He stated that claimant had no complaints
of itching or dryness and that there was no evidence of
hypertrophic scarring. Dr. Kealey reported claimant as wishing to
consider dermabrasion for cosmesis some time in the future.
On November 19, 1984, Dr. Kersten reported that claimant's
major sequelae of her burns were scarring of the chest wall, arm,
breast and contracture of the right axillary fold. He reported
that her graft donor sites had healed well with faint scarring
which would be permanent. The first and second degree burns on
the right side of her face and neck were reported as having
healed with very faint residual scarring that may fade further,
but which will leave some permanent scarring. He reported that
the deeper burns on the right anterior chest, right breast, right
axilla and right inner and anterior arm were all well healed with
considerable cosmetic scarring and with the development of an
early contracture along the right axillary fold. He then thought
that such would require revision the following Spring. On
January 29, 1985, Dr. Kersten advised claimant that she should
wait for her scars to stop shrinking before undergoing skin
grafting and revision. He stated, "[t]he bands which are forming
can then be correct [sic]."
On November 23, 1987, Dr. Parks of Plastic-Reconstructive,
Cosmetic & Hand Surgery, reported that claimant had significant
residual scarring on her chest, arm, and back. He further
reported the following:
She originally had some skin grafting done but now she has
significant residual scarring on her chest, arms and back.
At this time she presents to have this burn revised.
I counselled her in the various techniques available and at
this time tissue expansion under the normal skin next to the
burn area with expansion of the skin and excising the burn
and pulling this normal skin up seemed most appropriate in
her case. This she desires to have done to reconstruct her
chest wall to a more normal looking appearance. This should
allow her to function more effectively.
In an office note of March 10, 1988, Dr. Parks stated:
...the object is to get normal looking skin to cover most of
her back and side so she would look better in her clothes
and feel better.
In a note to United Fire & Casualty Company dated November
10, 1987, Dr. Parks stated the following in response to Norman E.
Moon's request that he advise who had referred claimant to him as
a patient:
Pt was referred by my office manager, as her surgeon in Iowa
City was gone.
Medical bills outstanding are apparently a bill of
Associated Anesthesiologists in the amount of $930.00; a bill of
Dr. Parks in the amount of $5,297.50; and, bills of Iowa
Methodist Medical Center in the amounts of $30.90 and $3,477.25.
On claimant's exhibit list, claimant lists an Iowa Methodist
Medical Center bill in the amount of $2,100.36. No exhibit
documenting such charge was submitted into evidence, however.
Claimant, by way of her exhibit 11, states that she has traveled
2,750 miles to Des Moines as expenses in this matter.
APPLICABLE LAW AND ANALYSIS
Our only issue is whether claimant is entitled to payment of
her medical costs and medical mileage expenses related to the
tissue expansion procedures which Dr. Parks performed.
Section 85.27 provides that employers furnish employees
reasonable surgical, medical, and hospital services and supplies
when an injury arises out of and in the course of the employment.
Medical treatment provided need not reduce impairment or
disability. Zimmerman v. L. L. Pelling Co., II Iowa Industrial
Commissioner Report, 462, 463 (App. Decn. 1982). The section
also provides that claimant shall be paid reasonable and
necessary transportation expenses incurred in the course of
receiving such medical services. The employer has the right to
chose the care. "The employee has the burden of showing the
treatment is related to the injury. Proof of the necessity of
the treatment may be found in the claimant's own testimony."
Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice,
section 15-1.
Where a designated physician refers a claimant to another
physician, the designated physician acts as the employer's agent.
It is not necessary then for defendants to authorize such
referral. See Kittrell v. Allen Memorial Hospital, 34th Biennial
Report of the Iowa Industrial Commissioner, 164 (1979).
Webster's Ninth New Collegiate Dictionary defines
"reasonable" as agreeable to reason; not extreme or excessive;
moderate; fair.
Defendants first contend that claimant's treatment with Dr.
Parks was not reasonable and necessary. We note that section
85.27 expressly states only that the treatment must be
reasonable, not that such be necessary. Nor can it be inferred
from the section or from the common definition of reasonable that
treatment must be absolutely necessary before such is permissible
as reasonable treatment. Claimant reports that the tissue
expansion procedure which Dr. Parks performed increased her arm
movement. Objective records would suggest that claimant received
relatively little, if any, benefit by way of increased arm
movement given the extremely mild contracture which Dr. Cram
reported in August of 1985 and the lack of any loss of motion in
either the right shoulder or the right upper extremity which Dr.
Kealey reported in December 1985. Hence, it appears that the
real benefit, if any, derived from the tissue expansion procedure
related to claimant's appearance and self-image. Indeed, while
Dr. Kersten testified that the tissue expansion procedure was
primarily corrective plastic surgery and to increase claimant's
arm movement, Dr. Parks who performed the tissue expansion
procedure apparently felt that the primary purpose was for
cosmesis. Dr. Parks stated, "The objective is to get normal
looking skin to cover most of her back and side so she would look
better in her clothes and feel better."
Defendants apparently assert that if the primary purpose was
cosmesis, the treatment was not reasonable. They appear to rely
upon the fact that the areas affected can generally be covered
with clothing. Defendants argument is not well taken. A sense
that one's body appears normal and need not be constantly covered
is generally important to most individuals' well being. Dr.
Kersten reported that changes in physical appearance and
resulting changes in self-image and individual confidence were
typical sequelae following burn injuries. He opined that it was
appropriate [medically] to work with such changes. Both claimant
and Kelly Gonder testified that claimant had a decrease in
self-confidence and decreased ability to internsion procedures which Dr. Parks performed.
Section 85.27 provides that employers furnish employees
reasonable surgical, medical, and hospital services and supplies
when an injury arises out of and in the course of the employment.
Medical treatment provided need not reduce impairment or
disability. Zimmerman v. L. L. Pelling Co., II Iowa Industrial
Commissioner Report, 462, 463 (App. Decn. 1982). The section
also provides that claimant shall be paid reasonable and
necessary transportation expenses incurred in the course of
receiving such medical services. The employer has the right to
chose the care. "The employee has the burden of showing the
treatment is related to the injury. Proof of the necessity of
the treatment may be found in the claimant's own testimony."
Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice,
section 15-1.
Where a designated physician refers a claimant to another
physician, the designated physician acts as the employer's agent.
It is not necessary then for defendants to authorize such
referral. See Kittrell v. Allen Memorial Hospital, 34th Biennial
Report of the Iowa Industrial Commissioner, 164 (1979).
Webster's Ninth New Collegiate Dictionary defines
"reasonable" as agreeable to reason; not extreme or excessive;
moderate; fair.
Defendants first contend that claimant's treatment with Dr.
Parks was not reasonable and necessary. We note that section
85.27 expressly states only that the treatment must be
reasonable, not that such be necessary. Nor can it be inferred
from the section or from the common definition of reasonable that
treatment must be absolutely necessary before such is permissible
as reasonable treatment. Claimant reports that the tissue
expansion procedure which Dr. Parks performed increased her arm
movement. Objective records would suggest that claimant received
relatively little, if any, benefit by way of increased arm
movement given the extremely mild contracture which Dr. Cram
reported in August of 1985 and the lack of any loss of motion in
either the right shoulder or the right upper extremity which Dr.
Kealey reported in December 1985. Hence, it appears that the
real benefit, if any, derived from the tissue expansion procedure
related to claimant's appearance and self-image. Indeed, while
Dr. Kersten testified that the tissue expansion procedure was
primarily corrective plastic surgery and to increase claimant's
arm movement, Dr. Parks who performed the tissue expansion
procedure apparently felt that the primary purpose was for
cosmesis. Dr. Parks stated, "The objective is to get normal
looking skin to cover most of her back and side so she would look
better in her clothes and feel better."
Defendants apparently assert that if the primary purpose was
cosmesis, the treatment was not reasonable. They appear to rely
upon the fact that the areas affected can generally be covered
with clothing. Defendants argument is not well taken. A sense
that one's body appears normal and need not be constantly covered
is generally important to most individuals' well being. Dr.
Kersten reported that changes in physical appearance and
resulting changes in self-image and individual confidence were
typical sequelae following burn injuries. He opined that it was
appropriate [medically] to work with such changes. Both claimant
and Kelly Gonder testified that claimant had a decrease in
self-confidence and decreased ability to internsion procedures which Dr. Parks performed.
Section 85.27 provides that employers furnish employees
reasonable surgical, medical, and hospital services and supplies
when an injury arises out of and in the course of the employment.
Medical treatment provided need not reduce impairment or
disability. Zimmerman v. L. L. Pelling Co., II Iowa Industrial
Commissioner Report, 462, 463 (App. Decn. 1982). The section
also provides that claimant shall be paid reasonable and
necessary transportation expenses incurred in the course of
receiving such medical services. The employer has the right to
chose the care. "The employee has the burden of showing the
treatment is related to the injury. Proof of the necessity of
the treatment may be found in the claimant's own testimony."
Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice,
section 15-1.
Where a designated physician refers a claimant to another
physician, the designated physician acts as the employer's agent.
It is not necessary then for defendants to authorize such
referral. See Kittrell v. Allen Memorial Hospital, 34th Biennial
Report of the Iowa Industrial Commissioner, 164 (1979).
Webster's Ninth New Collegiate Dictionary defines
"reasonable" as agreeable to reason; not extreme or excessive;
moderate; fair.
Defendants first contend that claimant's treatment with Dr.
Parks was not reasonable and necessary. We note that section
85.27 expressly states only that the treatment must be
reasonable, not that such be necessary. Nor can it be inferred
from the section or from the common definition of reasonable that
treatment must be absolutely necessary before such is permissible
as reasonable treatment. Claimant reports that the tissue
expansion procedure which Dr. Parks performed increased her arm
movement. Objective records would suggest that claimant received
relatively little, if any, benefit by way of increased arm
movement given the extremely mild contracture which Dr. Cram
reported in August of 1985 and the lack of any loss of motion in
either the right shoulder or the right upper extremity which Dr.
Kealey reported in December 1985. Hence, it appears that the
real benefit, if any, derived from the tissue expansion procedure
related to claimant's appearance and self-image. Indeed, while
Dr. Kersten testified that the tissue expansion procedure was
primarily corrective plastic surgery and to increase claimant's
arm movement, Dr. Parks who performed the tissue expansion
procedure apparently felt that the primary purpose was for
cosmesis. Dr. Parks stated, "The objective is to get normal
looking skin to cover most of her back and side so she would look
better in her clothes and feel better."
Defendants apparently assert that if the primary purpose was
cosmesis, the treatment was not reasonable. They appear to rely
upon the fact that the areas affected can generally be covered
with clothing. Defendants argument is not well taken. A sense
that one's body appears normal and need not be constantly covered
is generally important to most individuals' well being. Dr.
Kersten reported that changes in physical appearance and
resulting changes in self-image and individual confidence were
typical sequelae following burn injuries. He opined that it was
appropriate [medically] to work with such changes. Both claimant
and Kelly Gonder testified that claimant had a decrease in
self-confidence and decreased ability to internsion procedures which Dr. Parks performed.
Section 85.27 provides that employers furnish employees
reasonable surgical, medical, and hospital services and supplies
when an injury arises out of and in the course of the employment.
Medical treatment provided need not reduce impairment or
disability. Zimmerman v. L. L. Pelling Co., II Iowa Industrial
Commissioner Report, 462, 463 (App. Decn. 1982). The section
also provides that claimant shall be paid reasonable and
necessary transportation expenses incurred in the course of
receiving such medical services. The employer has the right to
chose the care. "The employee has the burden of showing the
treatment is related to the injury. Proof of the necessity of
the treatment may be found in the claimant's own testimony."
Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice,
section 15-1.
Where a designated physician refers a claimant to another
physician, the designated physician acts as the employer's agent.
It is not necessary then for defendants to authorize such
referral. See Kittrell v. Allen Memorial Hospital, 34th Biennial
Report of the Iowa Industrial Commissioner, 164 (1979).
Webster's Ninth New Collegiate Dictionary defines
"reasonable" as agreeable to reason; not extreme or excessive;
moderate; fair.