Page 1
before the iowa industrial commissioner
____________________________________________________________
:
CHAD COUNTER, :
:
Claimant, :
:
vs. :
: File No. 941353
CARLSON MACHINE CO., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Chad
Counter, claimant, against Carlson Machine Company, employer
(hereinafter referred to as Carlson Machine), and CNA
Insurance Company, for workers' compensation benefits as a
result of an alleged injury on February 13, 1990. On March
16, 1992, a hearing was held on claimant's petition and the
matter was considered fully submitted at the close of this
hearing.
The parties have submitted a prehearing report of con
tested issues and stipulations which was approved and
accepted as a part of the record of this case at the time of
hearing. The oral testimony and written exhibits received
during the hearing are set forth in the hearing transcript.
According to the prehearing report, the parties have
stipulated to the following matters:
1. On February 13, 1990, claimant received an injury
arising out of and in the course of employment with Carlson
Machine.
2. Claimant is entitled to healing period benefits
from February 14, 1990 through May 13, 1991.
3. The injury was a cause of permanent disability and
benefits for permanency would begin as of May 14, 1991
4. At the time of injury, claimant's gross rate of
weekly compensation was $220.00. He was single and entitled
to two exemptions. This establishes a weekly rate of com
pensation of $144.84, according to the Industrial
Commissioner's published rate booklet for FY 90.
5. All requested medical benefits have been or will be
Page 2
paid by defendants.
ISSUE
The only issue submitted by the parties for determina
tion in this proceeding is the extent of claimant's entitle
ment to permanent disability benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
A credibility finding is necessary to this decision as
defendants placed claimant's credibility at issue during
cross-examination as to the nature and extent of the dis
ability. From his demeanor while testifying, claimant is
found credible.
Claimant worked for Carlson Machine from September 1989
until the injury herein. Claimant was a tear down person.
This required him to dismantle and clean large engine and
compressor assemblies. Claimant regularly lifted in excess
of 50 pounds in this job prior to the injury. Claimant
earned $5.50 per hour at the time of the alleged injury
herein.
On or about February 13, 1990, claimant injured his low
back while lifting a cylinder head of a diesel engine.
Defendants do not dispute the occurrence of this injury.
Claimant experienced immediate low back pain and leg numb
ness with multiple back spasms. Claimant continued working
for a while but later that day sought medical treatment from
the company doctor, D. M. Youngblade, M.D. Dr. Youngblade
diagnosed back strain and placed claimant on light duty for
two weeks. However, claimant then went to M. D. Van Patten,
M.D., who took him off work for continued symptoms. After
his treatment of claimant failed to improve claimant's con
dition, Dr. Van Patten referred claimant to an orthopedic
surgeon, Duane K. Nelson, M.D. Dr. Nelson treated claimant
over the next several months. This treatment involved con
servative care consisting of medication, physical therapy
and use of a back brace. Claimant still did not improve and
Dr. Nelson recommended treatment at the University of Iowa
Spine Diagnostic and Treatment Center in April and May 1991.
Claimant was released from this center after a two week
rehabilitation program with restrictions against lifting
over 45 pounds (not more than 4 times per hour) and against
repeated lifting over 22 pounds (more than 4 times per
hour).
Claimant suffered several injuries/auto accidents in
his life both before and after the work injury herein.
Claimant's testimony that he suffered no back problems
before February 13, 1990 and no additional problems after
any subsequent injuries is uncontroverted in the record.
Therefore, it is found that claimant's current disability is
solely caused by the work injury of February 13, 1990.
Page 3
Claimant was denied unemployment compensation benefits
because he failed to immediately report for work at Carlson
Machine. Carlson Machine has hired another person to fill
claimant's position. Carlson Machine management states that
in May 1991 claimant was able to return to his former job at
Carlson Machine even with his current restrictions due to
the availability of mechanical lifting devices in the shop.
The undersigned is quite skeptical of Carlson Machine's tes
timony. The owner admitted at hearing in this case that
employees in the shop regularly do not use the available
equipment and lift over 50 pounds. Nowhere was it shown
that this possible accommodation was ever communicated to
claimant in May 1991. The undersigned believes it was fully
justified for claimant to believe that returning to Carlson
Machine was not possible within his restrictions if he and
others were clearly expected before that time to lift more
than 50 pounds. Claimant credibly testified that use of
lifting devices would greatly slow down production in the
shop.
However, regardless of whether or not defendants were
justified in replacing claimant in May 1991, claimant today
has a permanent industrial disability. The work injury of
February 13, 1990, was a cause of an 8-10 percent permanent
impairment to the body as a whole according to the uncontro
verted views of Dr. Nelson and the University of Iowa Spine
Center. Also, claimant is unable to lift over 45 pounds or
22 pounds repetitively. Additionally, claimant stated at
hearing that he cannot sit or stand for long periods of time
and must change positions frequently to avoid pain.
Claimant's only past working experience has been in jobs
requiring either heavy work or unskilled minimum wage
restaurant work. He has some skills in repairing small
engines but, as explained by claimant at hearing, today's
small engines are very "high tech" and he would need more
training. A vocational consultant whose views are uncontro
verted in the record opines that due to his physical limita
tions, claimant is precluded from up to 45 percent of the
jobs in the labor market.
However, claimant is very young and his youth is a pos
itive factor in obtaining new work skills. Claimant has a
high school education. He appeared bright and fairly artic
ulate at hearing. He appears to be motivated to overcome
his disability. Claimant is now employed as a convenience
store clerk and earns approximately $1.00 per hour less than
at Carlson Machine, but he only works 32 hours a week. This
job appears to be within his physical and mental capabili
ties but he has clearly suffered a loss of actual earnings
as a result of the inability to return to full time heavy,
manual labor.
Therefore it is found that the work injury of February
13, 1990, was a cause of a 40 percent loss of earning
capacity.
CONCLUSIONS OF LAW
Claimant must establish by a preponderance of the evi
dence the extent of weekly benefits for permanent disability
Page 4
to which claimant is entitled. As the claimant has shown
that the work injury was a cause of a permanent physical
impairment or limitation upon activity involving the body as
a whole, the degree of permanent disability must be measured
pursuant to Iowa Code section 85.34(2)(u). However, unlike
scheduled member disabilities, the degree of disability
under this provision is not measured solely by the extent of
a functional impairment or loss of use of a body member. A
disability to the body as a whole or an "industrial disabil
ity" is a loss of earning capacity resulting from the work
injury. Diederich v. Tri-City Railway Co., 219 Iowa 587,
593, 258 N.W. 899 (1935). A physical impairment or restric
tion on work activity may or may not result in such a loss
of earning capacity. The extent to which a work injury and
a resulting medical condition has resulted in an industrial
disability is determined from examination of several fac
tors. These factors include the employee's medical condi
tion 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 intellec
tually, emotionally and physically; earnings prior and sub
sequent to the injury; age; education; motivation; func
tional 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 trans
fer for reasons related to the injury is also relevant.
Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125
N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe,
Inc., (Appeal Decision, February 28, l985).
In the case sub judice, it was found that claimant suf
fered a 40 percent loss of his earning capacity as a result
of the work injury. Such a finding entitles claimant to 200
weeks of permanent partial disability benefits as a matter
of law under Iowa Code section 85.34(2)(u) which is 40 per
cent of 500 weeks, the maximum allowable number of weeks for
an injury to the body as a whole in that subsection.
ORDER
1. Defendants shall pay to claimant two hundred (200)
weeks of permanent partial disability benefits at a rate of
one hundred forty-four and 84/l00 dollars ($144.84) per week
from May 14, 1991.
2. Defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against this award for all
benefits previously paid.
3. Defendants shall pay interest on weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
4. Defendants shall pay the costs of this action pur
suant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
5. Defendants shall file activity reports on the pay
ment of this award as requested by this agency pursuant to
Page 5
rule 343 IAC 3.1.
Signed and filed this ____ day of April, 1992.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Daryl L. Hecht
Attorney at Law
614 Pierce Street
P O Box 27
Sioux City, Iowa 51102
Mr. Michael P. Jacobs
Attorney at Law
300 Toy National Bank Building
Sioux City, Iowa 51101
5-1803
Filed April 23, 1992
LARRY P. WALSHIRE
before the iowa industrial commissioner
____________________________________________________________
:
CHAD COUNTER, :
:
Claimant, :
:
vs. :
: File No. 941353
CARLSON MACHINE CO., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803 - Non-precedential, extent of disability case.
rmined that claimant's bilateral carpal
tunnel syndrome was caused by a single accident pursuant to
Iowa Code section 85.34(2)(s) which occurred on July 12,
1989.
The parties stipulated that claimant was an employee
who worked in the yard of employer and used both hands and
arms to perform hammering and nailing. The parties further
stipulated that claimant felt symptoms in both wrists
simultaneously on July 12, 1989.
Behrouz Rassekh, M.D., a neurosurgeon, saw claimant on
July 12, 1989, for bilateral numbness in his hands, worse on
the left. He diagnosed bilateral carpal tunnel syndrome,
worse on the left than the right. (Exhibit 2).
Nerve conduction studies requested by Dr. Rassekh were
performed by Jason T. Ohr, M.D., a neurologist, on July 19,
1989. He stated that his findings were consistent with
Page 2
bilateral carpal tunnel, worse on the left (Ex. 1).
Bilateral carpal tunnel symptoms persisted on February 3,
1990 (Ex. 3). Dr. Rassekh performed a decompression of the
left median nerve to relieve the left carpal tunnel on
February 19, 1990 (Ex. 10-12).
The parties stipulated that Charles Taylon, M.D., an
orthopedic surgeon, performed a release of the right carpal
tunnel sometime after September 20, 1991, even though there
are no records from Dr. Taylon in evidence.
The industrial commissioner has determined that the
loss of two scheduled members simultaneously is a loss from
a single accident under Iowa Code section 85.34(2)(s).
Shank v. Mercy Hospital Medical Center, File No. 719627
(Appeal Decision filed August 28, 1989). (Appealed to
District Court)
*****
More specifically, the industrial commissioner has
determined that bilateral carpal tunnel syndrome constituted
the loss of two scheduled members as a result of a single
gradual injury process and that the disability was to be
compensated as a single accident under Iowa Code section
85.34(2)(s). Johnson v. George A. Hormel and Company, File
Nos. 782796 and 7927933 (Appeal Decision June 21, 1988).
Even more specifically, the industrial commissioner has
determined that bilateral carpal tunnel constituted a single
accident when the symptoms to both hands occurred at the
same time and were diagnosed on the first doctor appointment
even though employer submitted two first reports of injury,
two claim files were set-up and processed, two separate
petitions were filed and the two different surgeries
occurred approximately a year apart. Himschoot v. Montezuma
Manufacturing, File Nos. 672778 and 738235 (Appeal Decision
April 15, 1988).
In Himschoot, permanent partial disability benefits
were awarded for functional impairment as a single accident
based upon 500 weeks as prescribed by section 85.34(2)(s) by
converting and combining values using the guides to
evaluation of permanent impairment published by the American
Medical Association. Simbro v. DeLong's Sportswear, 332
N.W.2d 886 (Iowa 1983). (Himschoot was affirmed by the
court of appeals but cannot be cited as precedent because it
is an unpublished decision. Himschoot v. Montezuma
Manufacturing, 458 N.W.2d 875 (Iowa 1990).
In Simbro, cited above, claimant had developed a
compression of the ulnar nerve in both wrists in her job as
a material cutter to make school and award jackets. This
job required heavy lifting and the use of heavy cutting
instruments. The Supreme Court stated, "In this appeal we
hold that workers' compensation benefits for permanent
partial disability of two members caused by a single
accident is a scheduled benefit." Thus, the Supreme Court
had no difficulty finding a "single accident" in a
cumulative trauma, repetitive injury case.
Page 3
Bilateral carpal tunnel syndromes were also determined
to be a single accident pursuant to Iowa Code section
85.34(2)(s) in Kebernik v. Thatcher Plastic Packaging, File
No. 704973 (Arb. Dec., December 22, 1988).
It has also been decided that when bilateral repetitive
injury symptoms or complaints occur a few months apart in
point of time, but are subsequently treated as a bilateral
problem, that it constitutes a single accident pursuant to
Iowa Code section 85.34(2)(s). Jones v. Lamoni Products,
File No. 800310 filed May 29, 1991; Torgerson v. Webster
City Custom Meats, File No. 863533 (Appeal Decision July 30,
1992). (Appealed to District Court)
The Iowa Supreme Court had defined "injury" very
broadly. Almquist v. Shenandosh Nurseries, Inc., 218 Iowa
724, 732, 254 N.W. 35, 39 (1934); Lawyer and Higgs, Iowa
Workers' Compensation Law and Practice, section 4-1, page
19.
An accident is not required. Olson v. Goodyear Serv.
Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).
Proof of a special incident or unusual occurrence is not
required. Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 159
(1949). A personal injury may develop gradually over an
extended period of time. Black v. Creston Auto Co., 255
Iowa 671, 281 N.W. 189 (1938). Cumulative injuries such as
this one are recognized in Iowa in situations where the
disability comes on gradually and the compensable injury
occurs later. Repetitive activity has been determined to be
a valid cause of an injury. McKeever Custom Cabinets v.
Smith, 379 N.W.2d 368 (Iowa 1985).
Even though the Supreme Court of Iowa determined in
McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, that the
injury date was the date when pain or disability prevented
the employee from continuing to work, they later expanded
the determination of the possible injury date to any date
supported by the evidence and granted the industrial
commissioner substantial latitude in making this
determination. Oscar Mayer Foods Corp. v. Tasler, 483
N.W.2d 824 (Iowa 1992).
***** In Thompson v. Shenandoah Gate Company, file
number 883575, (Appeal Decision August 30, 1991), ***** the
industrial commissioner affirmed the deputy but modified the
decision as to the proper injury date. The deputy held that
the injury date was the last day claimant worked for
defendant prior to a lay off. The industrial commissioner
made a literal interpretation of McKeever and determined
that the injury date was the date on which claimant was no
longer able to work, which was the date that he was
hospitalized. The date on which claimant Thompson was
hospitalized was after the lay off date. Claimant was no
longer working for employer on that date and never did
return to work for employer. Since Thompson, however, the
industrial commissioner has affirmed the decision of the
deputy in the Tasler case which determined that the last day
of work prior to a plant closing was a proper date of
Page 4
injury. The Tasler case has indicated that a wide range of
injury dates are possible and that any date which is
supported by substantial evidence will be an acceptable date
of injury in cumulative trauma cases.
Wherefore, it is determined in this case that based on
these facts the date of injury is the date that the parties
stipulated that claimant experienced simultaneous symptoms
in both wrists and that he was diagnosed as having bilateral
carpal tunnel which was July 12, 1989.
It is further determined that claimant's bilateral
carpal tunnel was caused by a single accident as those words
are used in Iowa Code 85.34(2)(s).
Claimant did not sustain separate injuries to each hand
pursuant to Iowa code section 85.34(2)(1).
It has been determined by the industrial commissioner
that carpal tunnel syndrome is not an occupational disease.
Himschoot v. Montezuma Mfg., File Nos. 672778 and 738325
(App. Dec., April 15, 1988); Noble v. Lamoni Products, File
Nos. 857575 and 851309 (App. Dec., May 7, 1992) (affirmed by
the district court and appealed to the supreme court).
ENTITLEMENT
It is determined that claimant is entitled to 50 weeks
of permanent partial disability benefits pursuant to Iowa
Code section 85.34(2)(s).
Dr. Rassekh determined on December 5, 1990, that
claimant had sustained a 10 percent permanent impairment to
the left hand and a 10 percent permanent impairment to the
right hand (Ex. 8). The parties further stipulated at the
hearing that these were the correct permanent impairment
ratings for each hand.
The parties stipulated on the hearing report signed by
both parties that the injury was the cause of both the
temporary and permanent disability.
Using the Guides to the Evaluation of Permanent
Impairment, Third Edition (revised), published by the
American Medical Association, using Table 2 on page 16 it
shows that 10 percent of the hand converts to 9 percent of
the upper extremity. Table 3 on page 16 shows that 9
percent of the upper extremity converts to 5 percent of the
whole person. Using the combined values chart on page 254,
5 percent of the whole person for the right hand injury and
5 percent of the whole person for the left hand injury
combines to 10 percent of the whole person. Applying Iowa
Code section 85.34(2)(s) 10 percent of 500 weeks equals 50
weeks of permanent partial disability benefits to which
claimant is entitled for this single accident which occurred
to both hands.
conclusions of law
The conclusions of law contained in the proposed agency
decision filed October 30, 1992 are adopted as final agency
action.
Page 5
WHEREFORE, the decision of the deputy is affirmed.
ORDER
THEREFORE, it is ordered:
That defendant pay to claimant fifty (50) weeks of
permanent partial disability benefits at the stipulated rate
of two hundred ninety-two dollars and 09/100 ($292.09) per
week in the total amount of fourteen thousand six hundred
four and 50/100 dollars ($14,604.50) commencing on March 12,
1990, as stipulated to by the parties.
That defendant is entitled to a credit for thirty-eight
(38) weeks of permanent partial disability benefits paid to
claimant prior to hearing at the rate of two hundred
ninety-two dollars ($292) per week in the total amount of
eleven thousand ninety-six dollars ($11,096) as stipulated
to by the parties on the hearing report and based upon a ten
percent (10%) permanent impairment to each hand as a
separate injury.
That these benefits are to be paid in a lump sum.
That interest will accrue pursuant to Iowa Code section
85.30.
That the costs of this action, including the cost of
the attendance of the court reporter at hearing and the
transcript of the hearing are charged to defendant pursuant
to rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and
86.40.
That defendant file any claim activity reports
requested by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of April, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Sheldon M. Gallner
Attorney at Law
803 Third Ave.
P.O. Box 1588
Council Bluffs, IA 51502
Mr. W. Curtis Hewett
Attorney at Law
25 Main Place
P.O. Box 249
Council Bluffs, IA 51502
1808
Filed April 29, 1993
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DANIEL FICHTER,
Claimant, File No. 941434
vs. A P P E A L
GRIFFIN PIPE PRODUCTS, D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
1808
Bilateral carpal tunnel that occurred in both wrists at the
same time and was diagnosed as bilateral carpal tunnel on
the first office visit was determined to be "caused by a
single accident" as those words are used in Iowa Code
section 85.34(2)(s) and was compensated on the basis of 500
weeks and not as separate injuries to each hand pursuant to
Section 85.34(2)(1). Several cites.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DANIEL FICHTER,
Claimant, File No. 941434
vs. A R B I T R A T I O N
GRIFFIN PIPE PRODUCTS, D E C I S I O N
Employer,
Self-Insured,
Defendant.
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration filed by Daniel
Fichter, claimant, against Griffin Pipe Products, employer,
and self-insured defendant for benefits as a result of an
injury or injuries that allegedly occurred on or about July
12, 1989. A hearing was held in Council Bluffs, Iowa on
October 21, 1992, and the case was fully submitted at the
close of the hearing. Claimant was represented by Sheldon
M. Gallner. Defendant was represented by W. Curtis Hewett.
The record consists of joint exhibits 1 through 12. The
case was submitted on the written exhibits and no testimony
was heard at the time of the hearing. The deputy ordered a
transcript of the proceedings.
ISSUES
The parties submitted the following issues for
determination at the time of the hearing.
Whether claimant sustained an injury to both hands
"caused by a single accident" pursuant to the provisions of
Iowa Code section 85.34(2)(s), or whether claimant sustained
separate injuries to each hand pursuant to Iowa Code section
85.34(2)(l).
Whether claimant is entitled to permanent disability
benefits and if so, the extent of benefits to which he is
entitled.
FINDINGS OF FACT
INJURY
It is determined that claimant's bilateral carpal
tunnel syndrome was caused by a single accident pursuant to
Iowa Code section 85.34(2)(s) which occurred on July 12,
1989.
The parties stipulated that claimant was an employee
who worked in the yard of employer and used both hands and
arms to perform hammering and nailing. The parties further
stipulated that claimant felt symptoms in both wrists
simultaneously on July 12, 1989.
Page 2
Behrouz Rassekh, M.D., a neurosurgeon, saw claimant on
July 12, 1989, for bilateral numbness in his hands, worse on
the left. He diagnosed bilateral carpal tunnel syndrome,
worse on the left than the right. (Exhibit 2).
Nerve conduction studies requested by Dr. Rassekh were
performed by Jason T. Ohr, M.D., a neurologist, on July 19,
1989. He stated that his findings were consistent with
bilateral carpal tunnel, worse on the left (Ex. 1).
Bilateral carpal tunnel symptoms persisted on February 3,
1980 (Ex. 3). Dr. Rassekh performed a decompression of the
left median nerve to relieve the left carpal tunnel on
February 19, 1990 (Ex. 10-12).
The parties stipulated that Charles Taylon, M.D., an
orthopedic surgeon, performed a release of the right carpal
tunnel sometime after September 20, 1991, even though there
are no records from Dr. Taylon in evidence.
The industrial commissioner has determined that the
loss of two scheduled members simultaneously is a loss from
a single accident under Iowa Code section 85.34(2)(s).
Shank v. Mercy Hospital Medical Center, File No. 719627
(Appeal Decision filed August 28, 1989). (Appealed to
District Court)
Deputies have made the same determination. Coronado v.
Armour Food Co., File No. 823415 filed January 19, 1990.
Larry Palmer v. Iowa Power, Inc., File No. 941807,
arbitration decision August 21, 1992 (on appeal).
More specifically, the industrial commissioner has
determined that bilateral carpal tunnel syndrome constituted
the loss of two scheduled members as a result of a single
gradual injury process and that the disability was to be
compensated as a single accident under Iowa Code section
85.34(2)(s). Johnson v. George A. Hormel and Company, File
Nos. 782796 and 7927933 (Appeal Decision June 21, 1988).
Even more specifically, the industrial commissioner has
determined that bilateral carpal tunnel constituted a single
accident when the symptoms to both hands occurred at the
same time and were diagnosed on the first doctor appointment
even though employer submitted two first reports of injury,
two claim files were set-up and processed, two separate
petitions were filed and the two different surgeries
occurred approximately a year apart. Himschoot v. Montezuma
Manufacturing, File Nos. 672778 and 738235 (Appeal Decision
April 15, 1988).
In Himschoot, permanent partial disability benefits
were awarded for functional impairment as a single accident
based upon 500 weeks as prescribed by section 85.34(2)(s) by
converting and combining values using the guides to
evaluation of permanent impairment published by the American
Medical Association. Simbro v. DeLong's Sportswear, 332
N.W.2d 886 (Iowa 1983). (Himschoot was affirmed by the
court of appeals but cannot be cited as precedent because it
is an unpublished decision. Himschoot v. Montezuma
Page 3
Manufacturing, 458 N.W. 2d 875 (Iowa, 1990).
In Simbro, cited above, claimant had developed a
compression of the ulnar nerve in both wrists in her job as
a material cutter to make school and award jackets. This
job required heavy lifting and the use of heavy cutting
instruments. The Supreme Court stated, "In this appeal we
hold that workers' compensation benefits for permanent
partial disability of two members caused by a single
accident is a scheduled benefit." Thus, the Supreme Court
had no difficulty finding a "single accident" in a
cumulative trauma, repetitive injury case.
Bilateral carpal tunnel syndromes were also determined
to be a single accident pursuant to Iowa Code section
85.34(2)(s) in Kebernik v. Thatcher Plastic Packaging, File
No. 704973 (Arb. Dec., December 22, 1988).
It has also been decided that when bilateral repetitive
injury symptoms or complaints occur a few months apart in
point of time, but are subsequently treated as a bilateral
problem, that it constitutes a single accident pursuant to
Iowa Code section 85.34(2)(s). Jones v. Lamoni Products,
File No. 800310 filed May 29, 1991; Torgerson v. Webster
City Custom Meats, File No. 863533 (Appeal Decision July 30,
1992). (Appealed to District Court)
The Iowa Supreme Court had defined "injury" very
broadly. Almquist v. Shenandosh Nurseries, Inc., 218 Iowa
724, 732, 254 N.W. 35, 39 (1934); Lawyer and Higgs, Iowa
Workers' Compensation Law and Practice, section 4-1, page
19.
An accident is not required. Olson v. Goodyear Serv.
Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).
Proof of a special incident or unusual occurrence is not
required. Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 159
(1949). A personal injury may develop gradually over an
extended period of time. Black v. Creston Auto Co., 255
Iowa 671, 281 N.W. 189 (1938). Cumulative injuries such as
this one are recognized in Iowa in situations where the
disability comes on gradually and the compensable injury
occurs later. Repetitive activity has been determined to be
a valid cause of an injury. McKeever Custom Cabinets v.
Smith, 379 N.W.2d 368 (Iowa 1985).
Even though the Supreme Court of Iowa determined in
McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, that the
injury date was the date when pain or disability prevented
the employee from continuing to work, they later expanded
the determination of the possible injury date to any date
supported by the evidence and granted the industrial
commissioner substantial latitude in making this
determination. Oscar Mayer Foods Corp. v. Tasler, 483
N.W.2d 824 (Iowa 1992).
Counsel for defendant may have been uncertain about the
proper injury date in cumulative trauma cases because of the
decision in Thompson v. Shenandoah Gate Company, file number
883575, (Appeal Decision August 30, 1991) in which he
Page 4
represented the defendant Shenandoah. In the Thompson case
the industrial commissioner affirmed the deputy but modified
the decision as to the proper injury date. The deputy held
that the injury date was the last day claimant worked for
defendant prior to a lay off. The industrial commissioner
made a literal interpretation of McKeever and determined
that the injury date was the date on which claimant was no
longer able to work, which was the date that he was
hospitalized. The date on which claimant Thompson was
hospitalized was after the lay off date. Claimant was no
longer working for employer on that date and never did
return to work for employer. Since Thompson, however, the
industrial commissioner has affirmed the decision of the
deputy in the Tasler case which determined that the last day
of work prior to a plant closing was a proper date of
injury. The Tasler case has indicated that a wide range of
injury dates are possible and that any date which is
supported by substantial evidence will be an acceptable date
of injury in cumulative trauma cases.
Wherefore, it is determined in this case that based on
these facts the date of injury is the date that the parties
stipulated that claimant experienced simultaneous symptoms
in both wrists and that he was diagnosed as having bilateral
carpal tunnel which was July 12, 1989.
It is further determined that claimant's bilateral
carpal tunnel was caused by a single accident as those words
are used in Iowa Code 85.34(2)(s).
Claimant did not sustain separate injuries to each hand
pursuant to Iowa code section 85.34(2)(1).
It has been determined by the industrial commissioner
that carpal tunnel syndrome is not an occupational disease.
Himshoot v. Montezuma Mfg., File Nos. 672778 and 738325
(App. Dec., April 15, 1988); Noble v. Lamoni Products, File
Nos. 857575 and 851309 (App. Dec., May 7, 1992) (affirmed by
the district court and appealed to the supreme court).
ENTITLEMENT
It is determined that claimant is entitled to 50 weeks
of permanent partial disability benefits pursuant to Iowa
Code section 85.34(2)(s).
Dr. Rassekh determined on December 5, 1990, that
claimant had sustained a 10 percent permanent impairment to
the left hand and a 10 percent permanent impairment to the
right hand (Ex. 8). The parties further stipulated at the
hearing that these were the correct permanent impairment
ratings for each hand.
The parties stipulated on the hearing report signed by
both parties that the injury was the cause of both the
temporary and permanent disability.
Using the Guides to the Evaluation of Permanent
Impairment, Third Edition (revised), published by the
American Medical Association, using Table 2 on page 16 it
Page 5
shows that 10 percent of the hand converts to 9 percent of
the upper extremity. Table 3 on page 16 shows that 9
percent of the upper extremity converts to 5 percent of the
whole person. Using the combined values chart on page 254,
5 percent of the whole person for the right hand injury and
5 percent of the whole person for the left hand injury
combines to 10 percent of the whole person. Applying Iowa
Code section 85.34(2)(s) 10 percent of 500 weeks equals 50
weeks of permanent partial disability benefits to which
claimant is entitled for this single accident which occurred
to both hands.
CONCLUSIONS OF LAW
Wherefore, based upon the foregoing and following
principles of law these conclusions of law are made.
That claimant sustained a loss to both hands caused by
a single accident pursuant to Iowa Code section 85.34(2)(s)
on July 12, 1989. Simbro v. Delong's Sportswear, 332 N.W.2d
886 (Iowa 1983), Oscar Mayer Foods Corp. v Tasler, 483
N.W.2d 824 (Iowa 1992).
That the injury was the cause of permanent disability.
Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867
(1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607
(1945).
That claimant did not sustain separate injuries to each
hand pursuant to Iowa Code section 85.34(2)(1).
That claimant is entitled to 50 weeks of permanent
partial disability benefits. Iowa Code section 85.34(2)(s).
ORDER
THEREFORE, IT IS ORDERED:
That defendant pay to claimant fifty (50) weeks of
permanent partial disability benefits at the stipulated rate
of two hundred ninety-two dollars and 09/100 ($292.09) per
week in the total amount of fourteen thousand six hundred
four and 50/100 dollars ($14,604.50) commencing on March 12,
1990, as stipulated to by the parties.
That defendants are entitled to a credit for
thirty-eight (38) weeks of permanent partial disability
benefits paid to claimant prior to hearing at the rate of
two hundred ninety-two dollars ($292) per week in the total
amount of eleven thousand ninety-six dollars ($11,096) as
stipulated to by the parties on the hearing report and based
upon a ten percent (10%) permanent impairment to each hand
as a separate injury.
That these benefits are to be paid in a lump sum.
That interest will accrue pursuant to Iowa Code section
85.30.
That the costs of this action, including the cost of
Page 6
the attendance of the court reporter at hearing and the
transcript of the hearing are charged to defendant pursuant
to rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and
86.40.
That defendant file any claim activity reports
requested by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of October, 1992.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Sheldon M. Gallner
Attorney at Law
803 Third Ave., P.O. Box 1588
Council Bluffs, IA 51502
Mr. W. Curtis Hewett
Attorney at Law
25 Main Place
P.O. Box 249
Council Bluffs, IA 51502
1808
Filed October 30, 1992
Walter M. McManus, Jr.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DANIEL FICHTER,
Claimant, File No. 941434
vs. A R B I T R A T I O N
GRIFFIN PIPE PRODUCTS, D E C I S I O N
Employer,
Self-Insured,
Defendant.
___________________________________________________________
1808
Bilateral carpal tunnel that occurred in both wrists at the
same time and was diagnosed as bilateral carpal tunnel on
the first office visit was determined to be "caused by a
single accident" as those words are used in Iowa Code
section 85.34(2)(s) and was compensated on the basis of 500
weeks and not as separate injuries to each hand pursuant to
Section 85.34(2)(1). Several cites.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LARRY PALMER,
Claimant, File No. 941807
vs. A P P E A L
IOWA POWER, INC., D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal. The decision of the deputy
filed August 21, 1992 is affirmed and is adopted as the
final agency action in this case.
Defendant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of May, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Thomas J. Reilly
Attorney at Law
4900 University, Ste 200
Des Moines, Iowa 50311
Mr. Cecil L. Goettsch
Mr. D. Brian Scieszinski
Attorneys at Law
801 Grand, Ste 3700
Des Moines, Iowa 50309
51108.50 51401 51401.40
1402.60 1808 2209 1403 1806
2505 2602 2700
Filed May 25, 1993
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LARRY PALMER,
Claimant, File No. 941807
vs. A P P E A L
IOWA POWER, INC., D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
51108.50 51401 51401.40 1402.60
The only treating physician said the injury caused the
permanent disability. He was preferred over defendant's
physician who testified live.
1808 2209
The injury was determined to be bilateral cubital tunnel
which was caused by a single accident. Iowa Code section
85.34(2)(s) and Torgerson v. Webster City Custom Meats, file
number 863533 (App. Dec. 1992).
1403 1806 2505 2602 2700
It was determined that claimant's refusal to have left
cubital tunnel surgery performed which was recommended by
the treating physician was reasonable and claimant's
entitlement to permanent partial disability benefits should
not be reduced for reasonable refusal of medical care. The
decision reviews Stufflebean and all of the existing known
agency cases for the evolution of this point of law up to
the present time with numerous cites from Larson.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LARRY PALMER, :
:
Claimant, : File No. 941807
:
vs. :
: A R B I T R A T I O N
IOWA POWER, INC., :
: D E C I S I O N
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration brought by Larry
Palmer, claimant, against Iowa Power, Inc., employer and
self-insured defendant, for benefits as the result of an
injury which occurred on October 10, 1989. A hearing was
held in Des Moines, Iowa, on July 20, 1992, and the case was
fully submitted at the close of the hearing. Claimant was
represented by Thomas J. Reilly. Defendant was represented
by Cecil L. Goettsch. The record consists of the testimony
of Larry Palmer, claimant; David Berg, D.O., joint exhibits
A through K and claimant's exhibits 1 and 2.
ISSUES
The parties submitted the following issues for
determination at the time of the hearing:
Whether the injury was the cause of permanent
disability; and,
Whether claimant is entitled to permanent disability
benefits, and if so, the nature and extent of benefits to
which he is entitled.
FINDINGS OF FACT
CAUSAL CONNECTION-ENTITLEMENT
It is determined that the injury of October 10, 1989,
was the cause of permanent disability.
It is further determined that claimant sustained an
injury to both elbows of bilateral cubital tunnel caused by
a single accident pursuant to Iowa Code section 85.34(2)(s).
It is further determined that claimant is entitled to
60 weeks of permanent partial disability benefits based upon
a 12 percent permanent impairment to the body as a whole
which is based upon a 5 percent permanent impairment to the
right upper extremity and 15 percent impairment to the left
upper extremity.
Page 2
Claimant's recent past medical history of work-related
claims includes an anterior cervical fusion performed in
1986 after he was struck in the head by a swinging back hoe
and a right and a left carpal tunnel surgery in 1987 caused
by the use of his hands at work. Claimant has been paid for
these injuries.
With respect to this injury, Arnis B. Grundberg, M.D.,
the only treating physician, testified on June 30, 1992, by
deposition, that as far back as May 10, 1988, claimant
complained of some discomfort in his elbows (exhibit 2, page
6; ex. A, p. 10). He treated claimant for bilateral medial
epicondylitis of the elbows on January 3, 1989 and April 28,
1989 (ex. A, pp. 9-10). On October 10, 1989, he diagnosed
probable bilateral cubital tunnel syndrome (ex. A, pp.
10-11). An EMG ordered by Dr. Grundberg was performed on
December 27, 1989, by William Koenig, M.D., and confirmed
bilateral cubital tunnel syndrome (ex. C, p. 3; ex. 2, p.
8). On January 2, 1990, Dr. Grundberg confirmed a diagnosis
of bilateral cubital tunnel syndrome (ex. A, p. 14; ex. 2,
p. 6). The doctor performed a decompression of the right
cubital tunnel on February 1, 1990 (ex. A, p. 13; ex. 2, p.
9). Dr. Grundberg stated that claimant was referred to him
by David Berg, D.O., an industrial medicine doctor (ex. 2,
pp. 6-7).
Dr. Grundberg stated that both the left and right
cubital tunnel were caused by the repetitive work that
claimant performs with his hands and arms at his place of
employment (ex. 2, p. 7). The doctor testified that the
symptoms which claimant exhibited were pain on the inside of
both elbows and numbness and tingling in his hands. He
added that these symptoms are consistent with bilateral
cubital tunnel (ex. 2, p. 8).
The surgery for the right cubital tunnel release
consisted of a four-inch incision made on the inside of the
elbow along the course of the ulnar nerve (ex. 2, pp. 9-10).
Claimant was released to return to work on March 12, 1990,
with some limitations, and was released to work without
restrictions of any kind on April 16, 1990. The doctor also
stated that cubital tunnel syndrome was brought on by hard
work so that when claimant was off work for the right
cubital tunnel release, it rested his left arm and his
symptoms probably improved in the left arm as well (ex. 2,
pp. 10-13; ex. A, pp. 14-15).
Dr. Grundberg testified that on June 3, 1991, he
assessed a 5 percent permanent impairment of the right arm
and a 15 percent permanent impairment of the left arm based
upon (1) claimant's symptoms; (2) the amount of strength in
his opinion; (3) his opinion of claimant's ability to carry
out his work with his arms; and (4) in some degree on the
basis of dexterity (ex. 2, p. 14; ex. 1). He added later
that he also took into consideration the objective
measurements provided by the electromyogram test, his
discussion with claimant relative to pain and fatigue and
his experience from past history of what an arm is like
without a surgical procedure for this particular problem
(ex. 2, pp. 32, 35).
Page 3
Dr. Grundberg further testified that his examination of
claimant on June 30, 1992, the date of the deposition, did
not cause him in any way to change his impairment rating
opinions that were determined by him back on June 3, 1991
(ex. 2, pp. 14-15). Dr. Grundberg stated, "He still has the
impairment as I indicated previously, yes, and he still has
trouble." (ex. 2, p. 16).
Defendant's counsel pointed out that with respect to
strength that when Dr. Grundberg's grip strength
measurements from May 25, 1990, were compared with those of
June 30, 1992, it indicated that claimant had more grip
strength in his unoperated left arm than he had in his
surgically corrected right arm. Dr. Grundberg explained
that after the ulnar nerve decompression performed on
February 1, 1990, that claimant developed right elbow
problems which he described as lateral epicondylitis of the
right elbow which is also commonly known as tennis elbow.
The doctor testified, "If he didn't have lateral
epicondylitis of the elbow, I suspect that his strength
would be stronger on the right than it would be on the
left." (ex. 2, p. 31).
The doctor acknowledged that he treated claimant with
three cortisone injections for the right elbow lateral
epicondylitis on August 31, 1990; January 22, 1991; and
February 19, 1991 (ex. A, pp. 19-20). Dr. Grundberg
explained that the right elbow lateral epicondylitis was the
factor impairing the strength in the right hand (ex. 2, pp.
19-22). Dr. Grundberg said claimant had a fairly
significant tennis elbow on the right side (ex. 2, p. 35).
With respect to claimant's ability to perform work,
defendant's counsel pointed out that claimant was returned
to work without any restrictions and has performed his work
since April 16, 1990, and therefore, there would not be any
reason to give claimant an impairment rating for his left
upper extremity because of the left cubital tunnel. Dr.
Grundberg explained, "Well, he is impaired in his work
because of all those other factors and because he has pain,
but he's just doing full duty even though he has some
impairment at the elbow." (ex. 2, pp. 22-25). When asked
whether the left cubital tunnel impairment would affect
claimant's work activities, Dr. Grundberg responded, "I
think it will cause pain when he works, and usually the arm
fatigues easier than the one on the other side and is
clumsy." (ex. 2, p. 35).
The doctor further explained that with respect to
dexterity, "When somebody has a pinched nerve or a cubital
tunnel syndrome, their arm tends to fatigue easy and then it
becomes clumsy, so I'm talking about clumsiness." (ex. 2,
p. 25).
With respect to symptoms, Dr. Grundberg acknowledged
that during the last two visits prior to his issuing the
impairment ratings, that his notes showed that claimant
voiced no subjective complaints about his left upper
extremity, but Dr. Grundberg explained that after claimant
Page 4
declined to have surgery on his left elbow, as he
recommended, then he did not make any further notes about
the left elbow because that is a known quantity and he
concentrated his efforts on claimant's current complaint,
which was the lateral epicondylitis of the right elbow (ex.
2, pp. 26-29). The doctor speculated that claimant declined
surgery because he did not like surgery (ex. 2, p. 29). At
another point, Dr. Grundberg testified that claimant may be
afraid of surgery (ex. 2, p. 33). In view of the fact that
claimant underwent an anterior cervical fusion in 1986, a
right and a left carpal tunnel release in 1987 and a right
cubital tunnel release in 1990, this tends to be
understandable.
Dr. Grundberg, a board certified orthopedic surgeon who
has been in practice for 20 years, estimated that if surgery
were performed on the left cubital tunnel, that claimant
would be left with a 5 percent permanent impairment of the
left arm. Dr. Grundberg testified that his criteria was
based upon the Guides to the Evaluation of Permanent
Impairment, published by the American Medical Association
(ex. 2, p. 30).
Dr. Grundberg further explained that his impairment
rating was based upon a positive EMG for the left arm (ex.
2, p. 28) and that it was also based on information from
claimant which he did not record in his notes after claimant
declined to have surgery on the left arm (ex. 2, p. 30).
Dr. Grundberg testified that it would appear from his
records that the symptoms in both arms manifested themselves
at approximately the same time (ex. 2, p. 33). This is true
because the medical records usually referred to both elbows
and not just one elbow (ex. A, pp. 10-12, 14-15, 19-20,
31-36, 39-40).
David T. Berg, D.O., testified that he is an
occupational medicine doctor and serves as company physician
to 200 companies for occupational diseases and illnesses.
He had reviewed all of the medical records and claimant's
deposition of June 17, 1992. He personally examined
claimant on June 25, 1991, and determined that there was no
evidence of cubital tunnel syndrome based on his physical
examination. He further determined that claimant had
sustained no permanent impairment based upon the principles
used in the Guides to the Evaluation of Permanent
Impairment, published by the American Medical Association.
Dr. Berg testified that a study by the Mayo Clinic
disclosed that a random sampling of people taken off the
street for an EMG disclosed that 10 percent of them had an
abnormal EMG even though they had no clinical symptoms of
any problems. He examined the EMG report in this case, but
was unable to interpret it beyond the conclusion rendered by
Dr. Koenig. Dr. Berg further determined that claimant was
not a candidate for surgery for a cubital tunnel release of
the left elbow. He believed that claimant had more problems
with his right elbow than with his left elbow.
Dr. Berg said it is difficult to assess claimant's
Page 5
impairment because you usually compare the good side with
the bad side and in claimant's case, there is no good side.
It was Dr. Berg's opinion that an EMG was a poor test to
diagnose cubital tunnel and he felt that it was better to go
by the doctor's clinical examination of claimant.
On cross-examination, Dr. Berg acknowledged that both
arms are abnormal and that he would defer to Dr. Koenig as a
competent specialist to conduct and report EMG results. He
acknowledged that he referred claimant to Dr. Grundberg for
his carpal tunnel syndrome in 1986. He acknowledged that
Dr. Grundberg had treated hundreds of cubital tunnel
syndromes and that he would perform surgery based upon
clinical symptoms even though there was a normal EMG. He
acknowledged that he did not have the EMG report before him
when he examined claimant on June 25, 1991. He used the AMA
Guides and based his zero impairment rating upon strength
and range of motion.
Dr. Berg stated that he did not get a positive Tinel
sign on June 25, 1991. He said the Tinel sign is that
percussion of the unlar nerve will produce pain. It is 50
to 60 percent reliable. Dr. Grundberg also indicated that
the best objective symptom is the fact that the patient has
discomfort when you push on the ulnar nerve. Dr. Grundberg
diagnosed bilateral cubital tunnel (ex. 2, p. 18) which
indicates that he apparently got a positive Tinel's sign.
The written notes of Dr. Berg at the time of his
examination on June 25, 1991, indicate that claimant told
him he had no strength loss and that claimant denied any
sensory changes. Claimant had a full passive and active
range of motion. There was no tenderness over the cubital
tunnels or lateral epicondyle. Percussion over the cubital
tunnels bilaterally did not produce any paresthesias. There
was no muscle atrophy. Dr. Berg diagnosed left cubital
tunnel based on history and EMG finding. He stated claimant
did not want left cubital tunnel surgery and that claimant
was not a candidate for this surgery. He said claimant was
tolerating his duties as a lineman fairly well without much
difficulty. He stated claimant was asymptomatic at the time
of his examination with no motor or neurological changes.
Dr. Berg said claimant had not sustained a permanent
impairment (ex. B, pp. 3-4).
In this case, Dr. Grundberg's opinion is preferred over
the opinion of Dr. Berg. Dr. Grundberg was claimant's only
treating physician and had the responsibility for the
success or failure of claimant's recovery. He had a greater
opportunity to observe and evaluate claimant. Dr. Berg only
saw claimant one time for the left cubital tunnel syndrome
for the purpose of producing evidence to defend this case.
Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187,
192 (Iowa 1985).
Furthermore, a doctor's expertise and board
certification may accord his testimony greater weight.
Reiland v. Palco, Inc., Thirty-second Biennial Report of
the Industrial Commissioner 56 (1975); Dickey v. ITT
Continental Baking Co., Thirty-fourth Biennial Report of the
Page 6
Industrial Commissioner 89 (1979). In this case, Dr.
Grundberg is a board certified orthopedic surgeon
specializing in the upper extremities with 20 years of
experience who authored an article on ulnar tunnel syndrome
in the Journal of the Hand, published by the British Society
for Surgery of the Hand, in February 1984; whereas, Dr. Berg
is an occupational medicine doctor and does not have the
same expertise with respect to ulnar tunnel syndrome as Dr.
Grundberg.
Dr. Berg felt claimant could still do his job even if
he was actually 15 percent impaired. He also acknowledged
that the AMA Guides allow 5 percent impairment for pain
which persists for six months along with recurrent physical
symptoms.
Claimant testified that he is an 18-year employee of
employer currently serving as a line crew foreman. Prior to
that he was a lineman, driver, tree trimmer, and worked in
the garage. His duties are quite varied. His job
description appears in the record at two different places as
a line foreman. He is a working foreman and performs work
along side the driver and lineman in his three-man crew. He
acknowledged that he has lost no time from work. He still
can perform his job but does so with pain and difficulty.
Claimant demonstrated how large electrical insulating
gloves irritate his arms when he wears them. He testified
that the rubber sleeves which insulate his arms from
electrical current also irritate his arms. The resistance
of the heavy rubber irritates his hands and elbows. His
duties include setting poles and shoveling dirt or anything
else that he might be required to do whether it be light or
heavy work. Claimant testified that he can and will do his
work although it is difficult and painful. He said he did
not intend to have surgery on the left elbow unless and
until it gets to the point where he cannot tolerate it (ex.
D, p. 54).
The fact that the bilateral cubital tunnel occurred
simultaneously, or to use the words of the statute, was
"caused by a single accident" is established by the medical
records of Dr. Grundberg and the testimony of Dr. Grundberg
previously summarized. In addition, claimant testified
several times that both elbows became symptomatic at the
same time (ex. D, pp. 11, 14, 15, 25-27). Iowa Code section
85.34(2)(s).
Dr. Grundberg testified that if claimant had surgery on
his left cubital tunnel, that his impairment might be about
5 percent. This is his testimony:
Q. And if surgery were performed, what is your
opinion as to the impairment which he would have
after the surgery?
A. Oh, an average of about 5 percent impairment.
Q. So had he chosen to have the surgery, you
think that in all likelihood that his impairment
Page 7
would not have exceeded 5 percent?
A. That's the usual, yes.
(exhibit 2, page 29)
Occasionally, an employee will refuse medical
treatment. Under those circumstances, the reasonableness of
the refusal will be examined. An unreasonable refusal can
result in a loss of benefits. Lawyer and Higgs, Iowa
Workers' Compensation--Law and Practice, (2d ed.) section
15-3, page 162.
The refusal of reasonable medical treatment is
discussed in 1 Larson, Workmen's' Compensation Law, section
13.22 beginning at page 3-595. This is not a case of rash
conduct impeding recovery. 1 Larson, section 13.22(a).
Likewise, it is not a case of treatment involving no risk.
1 Larson, section 13.22(b). Claimant has not refused
examinations or tests. 1 Larson section 13.22(c). Claimant
has complied with weight reduction recommendations and has
lost weight. 1 Larson, section 13.22(d).
Claimant does have conflicting opinions from different
doctors. 1 Larson, section 13.22(e). Dr. Grundberg has
recommended a left cubital tunnel release. Dr. Berg has
recommended against it.
If the risk of surgery is insubstantial and the
probability of cure is high, then refusal will result in a
termination of benefits. But if there is a real risk
involved and a considerable chance that the operation will
result in no improvement or perhaps even in a worsening of
the condition, then claimant cannot be forced to run the
risk at the peril of losing his statutory compensation
rights. In the case of some of the commonest operations
such as hernia and intervertebral disc most courts will not
disturb a finding that refusal to submit to an operation is
reasonable, because the question is a complex fact judgement
involving a multitude of variables, including claimant's age
and physical condition, his previous surgical experience, as
well as the percentages of success or failure of the
surgery. 1 Larson, section 13.22(f).
Dr. Grundberg's records show that the right cubital
tunnel surgery involved a four-inch incision on claimant's
right arm. Claimant demonstrated in the courtroom a
four-inch incision on the inner aspect of his upper arm just
above the elbow. Following the surgery, claimant was off
work for five and one-half weeks. Dr. Grundberg testified
that claimant sustained a 5 percent permanent impairment to
the right upper extremity due to the surgery. Thus, the
surgery proposed is a substantial invasive procedure with
substantial permanent consequences.
Following the right cubital tunnel surgery, claimant
has continued to have pain, tingling and numbness in his
right upper extremity. Thus, it would appear that the right
cubital tunnel surgery did not provide any significant
improvement to the right upper extremity. Worse, since the
Page 8
surgery, claimant has developed right lateral epicondylitis
for which he has received three cortisone injections which
have not provided him with any permanent relief. Thus,
claimant indicated that he did not feel like the right
cubital tunnel surgery was successful.
Furthermore, claimant had a right and a left carpal
tunnel surgery and still feels numbness and tingling in both
hands. In addition to that, claimant has also received an
anterior cervical fusion. Therefore, claimant's judgement
about whether he should receive additional left cubital
tunnel surgery is certainly based upon a more than
reasonable amount of actual experience.
Claimant was 42 years old at the time of the injury and
45 years old at the time of the hearing. He is an 18-year
career employee of employer. As a line crewman, the use of
his hands and arms are essential to perform the duties of
his employment. Claimant is in no position at this age and
state of health to try to find work in the competitive labor
market and expressed the desire to continue to perform this
job with this employer. It is certainly reasonable to
believe that if left cubital tunnel surgery would improve
the condition of his left arm, based upon his past
experience with his right arm, his right and left carpal
tunnel surgeries, and his anterior cervical fusion, that he
would in all probability quickly submit to the left cubital
tunnel surgery if there was some evidence that it would
improve his condition. Claimant testified that he does not
want the left cubital tunnel surgery until he can no longer
stand the pain and debility in his left upper extremity.
Under these circumstances it is determined that
claimant's refusal to submit to left cubital tunnel surgery
is not unreasonable. Stated conversely, claimant's refusal
of left cubital tunnel surgery under the facts of this case
is reasonable.
Other than the fact that "on average," the "usual"
impairment rating after surgery would be 5 percent, there is
no other evidence that the condition of his left upper
extremity, to wit, the pain, tingling and numbness, would be
improved. Therefore, it is determined that the risk of
surgery is substantial and the probability of cure is
questionable at best. As in the case of all surgeries there
is also a percentage of possibility of a worsening of his
condition, such as development of left lateral epicondylitis
which would require regular cortisone injections.
Claimant has clearly stated he does not want the left
cubital tunnel surgery until it becomes absolutely necessary
and that he has a fear of the surgery. Claimant's fear is
not merely an empty subjective fear of surgery as such, but
claimant's fear has some substantial basis in claimant's
experience. 1 Larson, section 13.22(f) pages 645, 3-646.
The general rule is that a reasonable refusal to except
medical care does not deprive a claimant of his right to
compensation. Stufflebean v. City of Fort Dodge, 233 Iowa
438, 9 N.W.2d 281 (1943).
Page 9
In Stufflebean, the industrial commissioner fashioned a
compromise award and permitted claimant to recover the
estimated costs of the surgery and weekly benefits that
would flow from it and then concomitantly cut off all future
medical benefits. Subsequently, former Industrial
Commissioner Robert C. Landess, disposed of a similar case
in the same manner. Schrobilgen v. Maharishi International
University, file number 758657 (App. Dec. 1986). Deputy
Industrial Commissioner Michael G. Trier disposed of another
case in the same manner. Pinter v. Fred Carlson Co., Inc.,
file numbers 796964 & 743088 (1987) (appealed and settled).
Actually, there is no statutory provision to dispose of
a case in this manner. It appears that the supreme court
simply stated in Stufflebean, in 1943, that in order to
provide a form of rough justice (speedy, summary, informal,
and untechnical) in order to comply with the legislative
intent of the workers' compensation law, the industrial
commissioner was allowed to accomplish substantial justice
by a compromise award and it would not be characterized as
reversible error. Stufflebean, 233 Iowa 438, 9 N.W.2d 281.
It was pointed out by former Deputy Industrial
Commissioner Barry Moranville writing an appeal decision for
the industrial commissioner that Stufflebean did not
determine the exact issue of whether an unreasonable refusal
to have surgery would result in a loss of compensation.
Bruneau v. Insulation Services, Inc., I Iowa Industrial
Commissioner Reports 34 (App. Dec. 1981). It should be
noted, too, that Stufflebean determined that claimant's
refusal of surgery was not so unreasonable as to deprive him
of the compromise award fashioned by the commissioner.
Former Deputy Moranville found in the Bruneau case that:
"Regardless of that source of claimant's fear, if the trier
of fact believes that fear to be sincere, as it were, and if
the surgery itself is dangerous, claimant should not be
deprived of any compensation benefits." Bruneau, I Iowa
Industrial Commissioner Report 34 (1981).
Likewise, in this case it is determined that claimant's
refusal of surgery was reasonable and that his fear of
further surgery is sincere and that claimant here should not
be deprived of any workers' compensation benefits.
In 1979 former Deputy Industrial Commissioner Helmut
Mueller did not arrange a compromise award based upon the
estimated medical and weekly benefits if claimant would have
had surgery. Rather, former Deputy Industrial Commissioner
Mueller simply refused to reduce claimant's award for
refusing to have back surgery and did confirm claimant's
right to refuse medical care. However, former Deputy Mueller
did cut off claimant's future right to medical benefits.
Former Deputy Mueller stated, "The award made in this matter
reflects this deputy's best judgment as to the extent of the
claimant's disability chargeable to this employer, and is
not a reduction of the claimant's entitlement of industrial
disability." Adams v. Happel and Sons, Inc., Thirty-fourth
Biennial Report of the Industrial Commissioner, 11 (1979).
Page 10
Only two known agency cases have determined that
claimant's refusal of medical care was unreasonable.
Claimant refused to have a wound debrided and former
Industrial Commissioner Landess reduced claimant's healing
period benefits from six weeks to four weeks in a judgement
call on close facts which could have possibly been
determined either way. Johnson v. Tri-City Fabricating &
Welding Co., Thirty-third Biennial Report of the Industrial
Commissioner 179 (App. Dec. 1977). Former Deputy Steven E.
Ort denied benefits for carpal tunnel syndrome where
claimant refused even conservative care which would have
remedied his condition. Collins v. John Deere Davenport
Works, vol. 2 no. 1 State of Iowa Industrial Commissioner
Decisions, 305 (1984). In this case, however, it is
determined that claimant's refusal of medical care was not
unreasonable.
A number of cases have found that claimant's refusal of
surgery was reasonable and awarded benefits without the
compromise award of estimated medical benefits and weekly
benefits being paid in exchange for a cut off of future
medical benefits. Wachsman v. Mason City Tile and Marble
Co., Thirty-second Biennial Report of the Industrial
Commissioner, 165 (1975); Decker v. Hartford Auto Sales,
Inc., II Iowa Industrial Commissioner Report, 105 (1982);
Smith v. Wayne County, vol. 1 no. 1 State of Iowa
Industrial Commissioner Decisions, 232 (1984); Arnaman v.
Mid-American Freightlines, vol 1. no. 3 State of Iowa
Industrial Commissioner Decisions, 497 (1985).
In the decisions filed in recent years, reasonable
refusal of surgery has not resulted in the reduction of
either medical benefits or weekly benefits. No compromise
award arrangements have been effected. Future medical
benefits have not been cut off. Barkdoll v. American
Freight System, Inc., file numbers 816913 & 778471 (App.
Dec. 1988); Hardy v. Abell-Howe Co., file number 814126
(App. Dec. 1990); Kirkbride v. Wellborn Industries, Ltd.,
file number 847423 (1991).
In summary, it has been determined that there should be
no reduction in workers' compensation weekly benefits when
the refusal of medical care, or more specifically, surgery,
was determined to be reasonable. The period of compromise
awards, for which there is no express statutory authority,
was short lived and appears to be past history. Therefore,
it is determined that there should be no reduction in
claimant's award because of his reasonable refusal to submit
to left cubital tunnel surgery.
Furthermore, it is questionable whether the industrial
commissioner has the authority to terminate future medical
benefits since it was the intent of the legislature to
provide lifetime medical benefits for workers' compensation
injuries. Iowa Code section 85.26(2); Lawyer and Higgs,
Iowa Workers' Compensation--Law and Practice, (2d ed.)
section 11-8, page 97.
Moreover, simply because the average, or usual percent,
of permanent impairment after a cubital tunnel surgery is 5
Page 11
percent, this determination is arbitrary and is only
speculative with respect to any one given individual. It is
entirely possible that claimant could be in the group which
shows no improvement after the surgery, or worse, claimant
might be in the group that is more impaired after the
surgery than he was before the surgery. Even if claimant's
future impairment, after the left cubital tunnel surgery,
could be determined with accuracy, there is still no
statutory basis or case law basis on which to reduce the
claimant's workers' compensation benefits for the reasonable
refusal of surgery.
Wherefore, it is determined that claimant should not
have his benefits reduced for failure to comply with
treatment.
Dr. Grundberg, the treating board certified orthopedic
surgeon, testified that claimant sustained a 5 percent
permanent impairment to his right upper extremity and a 15
percent permanent impairment to his left upper extremity.
Five percent of the upper extremity converts to 3 percent of
the body as a whole. Fifteen percent of the upper extremity
converts to 9 percent of the body as a whole. Guides to the
Evaluation of Permanent Impairment, 3d ed., revised, table
3, page 16. Using the combined values chart of the Guides,
on page 254, 9 percent and 3 percent combine to 12 percent
of the whole person. Twelve percent of 500 weeks is 60
weeks of benefits to which claimant is entitled. Iowa Code
section 85.34(2)(s).
Wherefore, in conclusion, it is determined that the
injury of October 10, 1989, was the cause of permanent
impairment to both arms caused by a single accident and
claimant is entitled to 60 weeks of permanent partial
disability benefits. Torgerson v. Webster City Custom
Meats, file number 863533 (App. Dec. 1992).
CONCLUSIONS OF LAW
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
That the injury of October 10, 1989, was the cause of
permanent impairment and disability. Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O.
Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
That claimant has sustained an injury to both arms
caused by a single accident. Iowa Code section 85.34(2)(s);
Torgerson v. Webster City Custom Meats, file number 863533
(App. Dec. 1992).
That claimant has sustained a 5 percent permanent
impairment to the right arm and a 15 percent permanent
impairment to the left arm which percentages convert and
combine to 12 percent of the whole person and that claimant
is entitled to 60 weeks of permanent partial disability
benefits. Iowa Code section 85.34(2)(s).
ORDER
Page 12
THEREFORE, IT IS ORDERED:
That defendant pay to claimant sixty (60) weeks of
permanent partial disability benefits at the stipulated rate
of five hundred eighty-four and 25/100 dollars ($584.25) per
week in the total amount of thirty-five thousand and
fifty-five dollars ($35,055) commencing on March 12, 1990,
as stipulated to by the parties.
That defendant is entitled to a credit for twelve point
five (12.5) weeks of permanent partial disability benefits
paid to claimant prior to hearing at the rate of five
hundred eighty-four and 25/100 dollars ($584.25) in the
total amount of seven thousand three hundred three and
13/100 dollars ($7,303.13) as stipulated to by the parties.
That these benefits are to be paid in a lump sum.
That interest will accrue pursuant to Iowa Code section
85.30.
That the costs of this action are charged to defendant
pursuant to Iowa Code section 86.40 and rule 343 IAC 4.33.
Signed and filed this ____ day of August, 1992.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Thomas J. Reilly
Attorney at Law
4900 University STE 200
Des Moines, Iowa 50311
Mr. Cecil Goettsch
Attorney at Law
801 Grand Ave, STE 3700
Des Moines, Iowa 50309-2727
51108.50 51401 51401.40
1402.60 1808 2209 1403 1806
2505 2602 2700
Filed August 21, 1992
Walter R. McManus, Jr.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LARRY PALMER, :
:
Claimant, : File No. 941807
:
vs. :
: A R B I T R A T I O N
IOWA POWER, INC., :
: D E C I S I O N
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
51108.50 51401 51401.40 1402.60
The only treating physician said the injury caused the
permanent disability. He was preferred over defendant's
physician who testified live.
1808 2209
The injury was determined to be bilateral cubital tunnel
which was caused by a single accident. Iowa Code section
85.34(2)(s) and Torgerson v. Webster City Custom Meats, file
number 863533 (App. Dec. 1992).
1403 1806 2505 2602 2700
It was determined that claimant's refusal to have left
cubital tunnel surgery performed which was recommended by
the treating physician was reasonable and claimant's
entitlement to permanent partial disability benefits should
not be reduced for reasonable refusal of medical care. The
decision reviews Stufflebean and all of the existing known
agency cases for the evolution of this point of law up to
the present time with numerous cites from Larson.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
JAMES FEELEY, :
:
Claimant, :
:
vs. :
: File No. 941819
DEPARTMENT OF REVENUE & :
FINANCE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by
claimant, James Feeley, against his former employer,
Department of Revenue & Finance, and the State of Iowa.
Claimant sustained an injury on February 14, 1990, which
arose out of and in the course of his employment.
The record in the case consists of testimony from the
claimant; defendants' exhibits 1 through 3; and, claimant's
exhibits A through F.
ISSUES
The parties have submitted the following issues for
resolution:
1. Whether claimant is entitled to permanent partial
disability benefits; and,
2. Whether claimant is entitled to medical benefits as
governed by Iowa Code section 85.27.
FINDINGS OF FACT
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
Claimant, James Feeley, was born on June 27, 1958. At
the time of the hearing, he was 35 years of age. Claimant
graduated from Dowling High School in 1976.
Claimant has pursued additional education, including
one quarter at Boone Junior College, in Boone, Iowa; four
years at Grandview College, where he earned a bachelor of
Page 2
arts degree in journalism; one year of graduate school at
Drake University, where he studied for a masters degree in
education and counseling; one year at Upper Iowa University;
and one year at Simpson College, where he earned a
certificate in journalism, speech and physical education.
Since graduation from high school, claimant has pursued
a career in baseball, and until 1989, had various pitching
contracts within national and international leagues for
pitching. Claimant has pitched for the Oakland A's minor
league, Italian leagues and Holland leagues.
Throughout his baseball career, claimant has also held
various other employment. He has worked as a busboy for
Perkins Restaurant, earning minimum wage; he worked for UPS
as a loader and unloader from 1977 through 1979; in 1980,
claimant worked as a construction worker and helped place
running tracks in and around the Des Moines metro area.
In 1981, claimant earned his first minor league
baseball pitching contract. As such, he was required to
train and work out three and one-half to four and one-half
hours per day, four to six days per week. Exercises
included playing catch, running short and long distances,
biking, running and pitching. Claimant stated that his
pitching strength was his speed, and was able to pitch 95 to
96 miles per hour. Prior to February 14, 1990, claimant had
no difficulties with his training program, and had no
physical problems concerning his back.
In 1990, claimant secured a temporary job with the
State of Iowa. His work as a utility office worker required
him to find old tax forms in one building, retrieve manila
folders and place them on a roll cart, push the cart to an
elevator and load the folders onto a truck. Claimant then
drove the truck to another building and unloaded it.
Claimant stated that the stacks of manila folders weighed
approximately 50 pounds. He was required to perform these
duties eight hours per day, five days per week. On February
14, 1990, claimant was working in a room with five
coworkers. He lifted a box, and his back gave out. He
stated that he could hardly move, and that the accident
occurred not long after he arrived at work at 8:00 a.m. He
told his coworker and his immediate boss that he had injured
himself. He was told to go to the nurse's office at the
capitol building and was then sent to Darwin Schossow, D.O.,
a family physician who treated him conservatively with
manipulation and muscle relaxers. Dr. Schossow diagnosed
lumbar myofacitis, and kept claimant off of work until
February 28, 1990. (Claimant's Exhibit B)
Claimant was then sent to Michael J. Makowsky, M.D.,
who believed claimant was suffering from myofascial back
pain. Dr. Makowsky treated claimant through May of 1990,
and placed a 25 pound lifting restriction on claimant's work
activities until June 1, 1990. At that time, claimant was
returned to unrestricted work duties. Dr. Makowsky also
prescribed physical therapy and an MRI of the lumbar sacral
spine. The results of the MRI reveal that claimant had a
mild bulge at the L4-L5 level on the right side, without
Page 3
definitive evidence of nerve root compression. Physical
therapy treatments consisted of moist superficial heat and
ultrasound to the left lumbar region. Once he was released
from physical therapy, he continued to complain of muscle
tightness in the left lumbar region. (Cl. Exs. C and D)
Claimant returned to Dr. Makowsky in March of 1991 for
an evaluation of any permanent impairment. After an
examination, Dr. Makowsky noted no tenderness on palpation
across claimant's back, no muscle spasms and no swelling.
Claimant displayed full range of motion at the waist on side
bending, twisting, flexion and backward extension. Again,
Dr. Makowsky noted myofascial back pain but did not believe
claimant had any permanent condition as a result of his work
injury. (Cl. Exs. C and D)
In September of 1991, claimant sought treatment from
Workmed Midwest. Rodothea Milatou, M.D., reviewed
claimant's past medical records and reports from x-rays and
the MRI of his spine, and determined that claimant had
sustained a strain to the muscles of his low back. She
recommended a work hardening program, and did not believe
that claimant had achieved maximum healing at this time.
Therefore, she declined to assign an impairment rating, but
instead prescribed anti-inflammatory medications and the
work hardening program. In July of 1992, Kevin Smith, M.D.,
(apparently formerly associated with Workmed Midwest)
reviewed claimant's medical history for the purposes of
determining whether claimant had any permanent disability.
At that time, claimant was still complaining of pain in the
low back, and described it on a scale from achiness to
sharpness, but most commonly annoying. Claimant was
"comfortable" with his range of motion, and was not taking
any medications. An examination showed claimant had some
restricted range of motion, and loss of function due to pain
and discomfort. Dr. Smith also indicted claimant had a
specific disorder of the spine, and assigned a functional
impairment rating of 5 percent of the body as a whole. (Cl.
Exs. E and F)
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to be determined is whether claimant is
entitled to permanent partial disability benefits.
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. App. P. 14(f).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
Page 4
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
Almost one year after he stopped treating claimant, Dr.
Makowsky indicated that claimant had not sustained any
permanent disability due to his work injury. This is so
even though the MRI indicated claimant had sustained a
bulging disc. Dr. Smith, who conducted an independent
medical examination, was of the opinion that claimant had
sustained a 5 percent impairment. In this case, the
undersigned finds Dr. Smith's opinion more persuasive. He
reviewed all of the prior medical records, and saw claimant
after he had completed work hardening. His report is very
thorough, and contains notes from the examination performed
on July 24, 1992.
As a result, it is found that claimant has sustained a
permanent disability. As he has sustained an injury to his
back, an evaluation of his industrial disability is
warranted.
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, expe
rience 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 disabil
ity. This is so as impairment and disability are not syn
onymous. 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 dis
ability 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;
Page 5
age; education; motivation; 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 or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
At the time of the hearing, claimant was 35 years of
age. He appears to be of above average intelligence, and
has secured several post-high school degrees.
Claimant has been involved in an interesting line of
work, that of professional baseball. Apparently, he has
been relative successful in his endeavors, and has always
been under a pitching contract from the years 1981 through
1989.
Claimant did not sustain a serious injury while working
for the State of Iowa, although he now has to contend with
some pain and loss of range of motion and function in his
low back. While claimant argues that his low back now
prevents him from successfully pursuing a career in minor
and/or major league baseball, the undersigned is not
convinced that the back injury is the sole impediment to his
ability to pitch for a baseball team. To blame a muscle
strain for his loss of a big league pitching career would
certainly stretch the boundaries of workers' compensation
laws.
After reviewing all of the factors that comprise an
industrial disability, it is found that claimant has
sustained a loss of earning capacity of 5 percent.
The final issue to address is whether claimant is
entitled to medical benefits as governed by Iowa Code
section 85.27.
Iowa Code section 85.27 provides, in relevant part:
The employer, for all injuries compensable
under this chapter or chapter 85A, shall furnish
reasonable surgical, medical, dental, osteopathic,
Page 6
chiropractic, podiatric, physical rehabilitation,
nursing, ambulance and hospital services and
supplies therefor and shall allow reasonably
necessary transportation expense incurred for such
services.
As claimant sustained an injury which arose out of and
in the course of his employment, he is entitled to medical
benefits as provided by Iowa Code section 85.27.
While the undersigned has reviewed the charges for an
independent medical examination, this is an issue to be
determined pursuant to Iowa Code section 85.39. This was not
an issue listed on the hearing report, and the undersigned
cannot determine payment of the same.
ORDER
THEREFORE, it is ordered:
That defendants pay claimant twenty-five (25) weeks of
permanent partial disability at the rate of one hundred
thirty-nine and 82/100 dollars ($139.82) per week commencing
June 1, 1990.
That defendants shall pay accrued weekly benefits in a
lump sum, and shall be awarded credit for permanent partial
disability benefits previously paid.
That defendants shall pay interest on the award as
governed by Iowa Code section 85.30.
That defendants shall pay the costs of this action.
That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of April, 1994.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Nick Avgerinos
Attorney at Law
135 S LaSalle St Ste 1527
Chicago IL 60603
Mr Stephen Moline
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg
Des Moines IA 50319
5-1803
Filed April 14, 1994
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
JAMES FEELEY, :
:
Claimant, :
:
vs. :
: File No. 941819
DEPARTMENT OF REVENUE & :
FINANCE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
5-1803
Claimant awarded 5% industrial disability.