BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
MICHAEL KNOX, :
:
Claimant, :
:
vs. :
: File Nos. 943985/943986
SYSTEM PARKING, INC., :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE, :
:
Insurance Carrier, :
Defendants. :
_________________________________________________________________
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
March 17, 1994 is affirmed and is adopted as the final agency
action in this case with the following additional analysis:
This agency does not have jurisdiction over claimant's
alleged injury, as the injury is based on racial discrimination.
See Miller v. Marshalltown Community School District, Appeal
Decision, September 12, 1994.
In addition, even if the agency had jurisdiction, the
deputy's findings of fact and conclusions of law are correct in
determining that claimant has failed to carry his burden of proof
that he underwent stress in the workplace greater than that
experienced by all employees. The circumstances and events
alleged by claimant, both those allegedly involving racial
discrimination and those involving other alleged "unfair"
treatment, do not rise to the level necessary to satisfy the
"legal test" under Dunlavey v. Economy Fire and Casualty Co.,
Appeal Decision, October 26, 1992.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of October, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Page 2
Copies To:
Mr. Steven Jayne
Attorney at Law
5835 Grand Ave., Ste 201
Des Moines, Iowa 50312
Ms. Coreen K. Bezdicek
Mr. Roy M. Irish
Attorneys at Law
729 Insurance Exchange Bldg.
Des Moines, Iowa 50309
2301; 2204
Filed October 21, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
MICHAEL KNOX, :
:
Claimant, :
:
vs. :
: File Nos. 943985/943986
SYSTEM PARKING, INC., :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE, :
:
Insurance Carrier, :
Defendants. :
_________________________________________________________________
2301; 2204
Claimant alleged that racial discrimination had caused him
mental stress. Held on appeal that this agency lacks
jurisdiction over claims based on racial discrimination, citing
Miller v. Marshalltown Community School District, Appeal
Decision, September 12, 1994.
Also held that even if the agency had jurisdiction, claimant
did not carry his burden to meet both the medical and legal tests
for a mental-mental injury.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
MICHAEL KNOX, :
:
Claimant, :
:
vs. :
: File No. 943985 &
943986
SYSTEM PARKING, INC., :
A R B I T R A T I O N
Employer, :
D E C I S I O N
and :
:
CNA INSURANCE, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Michael
Knox, claimant, against System Parking, Inc., employer, and
CNA Insurance Company, insurance carrier, defendants, to
recover benefits under the Iowa Workers' Compensation Act as
a result of injuries sustained on November 1, 1989 and May
7, 1990. This matter came on for hearing before the
undersigned deputy industrial commissioner on February 23,
1994, in Des Moines, Iowa. The record was considered fully
submitted at the close of the hearing. The claimant was
present and testified. Also present and testifying were
Estillio Johnson, John Goode and Floyd Faber. The
documentary evidence identified in the record consists of
joint exhibits 1 through 9.
ISSUES
Pursuant to the hearing report and order approving same
dated February 23, 1994, the parties have presented the
following issues for resolution:
. Whether claimant sustained injuries on November 1,
1989 and May 7, 1990 which arose out of and in the course of
employment;
. Whether claimant's May 7, 1990 injury resulted in
temporary disability from May 7, 1990 through January 16,
1992;
. Whether claimant's May 7, 1990 injury resulted in
permanent disability and, if so, the extent thereof, and
. Whether claimant is entitled to certain medical
Page 2
benefits under Iowa Code section 85.27.
Page 3
FINDINGS OF FACT
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Claimant was born on February 15, 1943, and has a GED
certificate. He completed two semesters at community
college. His past work was as a security officer, desk
clerk and welder. He commenced working for employer in June
of 1984 as a cashier in an enclosed parking garage on Fourth
and Grand Avenue in Des Moines, Iowa. Claimant alleges a
psychological injury as a consequence of not being promoted
due to racial discrimination by management. Claimant
alleges that the cumulative effect of the mental stimulus
associated with his employment rendered him disabled on or
about May 7, 1990, the date he was advised by his
psychiatrist to discontinue his employment with employer.
(exhibit 1-1). Claimant contends that arbitrary and/or
unreasonable employment practices directed toward him may
have been motivated, in whole or in part, by racial
discrimination on the part of his supervisors.
Claimant is a black male adult who was employed by
employer from June 1984 through May 7, 1990. He worked the
midnight shift which ended at 8 a.m. He earned $7.80 an
hour. In addition to serving as cashier, he assisted the
manager by counting tickets and balancing them against green
sheets. In addition, he emptied trash cans, mopped the
floors and prepared the cashier's tray for the next day.
Since claimant was confined to an enclosed booth and worked
a shift that had minimal traffic, he was allowed to pass his
time by watching television, reading and playing chess.
Claimant testified that in 1987, he requested a
transfer from the Fourth and Grand garage because he had a
conflict with Herman Reeve, the manager at that location.
Mike Brice, the general manager at that time, intervened in
the conflict. He was rewarded with a pay increase in
recognition of the extra work he was performing. Claimant
testified that Mr. Brice also told him that he was in line
for a managerial position. In a deposition taken of Mr.
Brice on December 13, 1993, Mr. Brice emphatically denied
that he ever promised claimant or in anyway indicated to him
that he was in line for a managerial position. (ex. 9-8).
From the spring of 1987 through the fall of 1989, John
Goode was the manager of the Fourth and Grand garage and
supervised claimant. In November 1989, Mr. Goode replaced
Mr. Brice as general manager and moved to the Fifth and Keo
facility. At the same time, Floyd Faber was made manager of
the Fourth and Grand garage. Claimant testified that he may
have been passed over for promotion because of his race and
recited various incidents of what he perceived to be racial
discriminatory behavior by management. Both Mr. Goode and
Mr. Faber testified. They denied claimant's contentions.
Mr. Brice testified that race was not a factor in promoting
either Mr. Goode or Mr. Faber. (ex. 9-13). Mr. Brice
Page 4
testified that John Goode was promoted by working his way up
through the system. He had been a manager and ran the
maintenance division for a period of time. Mr. Faber, like
Mr. Goode, had worked for the previous two operators who
managed the city parking garages for a number of years prior
to System Parking taking them over. He is a college
graduate and had prior managerial experience. Mr. Brice
felt that both of these men were more qualified for the
positions to which they were promoted than was claimant.
Claimant testified that he continued to work and
perform his usual duties after November 1989 because he was
promised a raise by Mr. Goode. He stated that he was also
told that other managerial positions would open and that he
was next in line for promotion. On April 3, 1990, claimant
presented to Hector W. Cavallin, M.D., psychiatrist, with
complaints of extreme stress. He related this stress to
being passed over for a management position which he stated
had been repeatedly promised to him. Despite the fact that
he had been hospitalized in the mental wing at Broadlawns
Hospital in Des Moines, Iowa, in 1962, claimant gave Dr.
Cavallin no history of prior mental illness. He also
related that he may be the victim of racial discrimination
since all of the people in management where white. Dr.
Cavallin advised him to consult an attorney regarding his
possible legal claims and to make another appointment with
him sometime thereafter. At this time he diagnosed acute
reaction to stress. (ex. 2-15).
According to Dr. Cavallin he next saw claimant on May
29, 1990. However, on May 7, 1990, he wrote, without
explanation that claimant was suffering from an acute
reaction to stress and was totally disabled and unable to
participate in any working situation. (ex. 1-1). On May
16, 1990, Dr. Cavallin wrote to claimant's attorney that in
his opinion, claimant's traumatic disorder was related to
his employment duties with System Parking. (ex. 1-2).
Claimant then began a regular course of one-half hour
psychotherapy sessions with Dr. Cavallin which has continued
through the present time with the exception of two
interruptions for hospitalizations in June 1990 and October
1991. (ex. 1, pages 3-17; ex. 2-6).
Claimant was hospitalized at Iowa Lutheran Hospital
from June 15 through June 25, 1990. He was admitted after
reportedly having difficulty sleeping and having nightmares
of killing people at work. During the course of
hospitalization, claimant completed an MMPI on June 19,
1990. It was determined that the profile was technically
invalid in view of the high number of unusual symptoms
endorsed. The results were discussed with claimant and he
was given the instrument to complete again which he did on
June 22, 1990. The second profile was again determined to
be invalid, the elevations on this profile being inflated to
a much greater degree than was the case on the first
profile. Nevertheless, although of questionable technical
validity, it was felt that the profile was consistent with
Page 5
the claimant's clinical presentation of depression,
interpersonal distrust and bizarre mentation. Claimant
related his emotional problems to being passed over for a
promotion. (ex. 6, pp. 1-9).
Claimant was admitted to Iowa Lutheran Hospital on
October 16, 1991. At this time he presented with increasing
auditory hallucinations and paranoid delusions. At the time
of discharge on October 19, 1991, it was determined that he
was suffering from toxic psychosis, chronic depression,
gastritis and disequilibrium secondary to medication. (ex.
1, pp. 10-14).
At the hearing, claimant blamed the aforementioned
episode on medication prescribed by Michael J. Taylor, M.D.
Claimant saw Dr. Taylor at the request of defendants on
November 29, 1990. At that time, Dr. Taylor diagnosed major
depressive disorder which he later explained does not imply
any particular degree of severity. However, he felt that
claimant's disorder was severe. It was his opinion that the
depression was caused, or at least aggravated, by claimant's
perception that he had been passed over for a promotion
which he believed he deserved and which he believed he was
told he would get. At no time, did claimant mention to Dr.
Taylor that his failure to be promoted was racially
motivated. (ex. 4).
CONCLUSIONS OF LAW
The issue to be determined is whether claimant has
established a mental injury arising out of and in the course
of his employment which meets the standards of liability
under Iowa law. Claimant alleges that the cumulative effect
of the mental stimulus associated with his employment
rendered him disabled on or about May 7, 1990, when he was
advised by Dr. Cavallin to discontinue his employment.
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
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).
The question of causal connection is essentially within
Page 6
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).
The standard for determining whether a mental injury
arose out of and in the course of employment was discussed
in Ohnemus v. John Deere Davenport Works, (Appeal Decision,
February 26, 1990).
In order to prevail claimant must prove that he
suffered a non-traumatically caused mental injury
that arose out of and in the course of his
employment. This matter deals with what is
referred to as a mental-mental injury and does not
deal with a mental condition caused by physical
trauma or physical condition caused by mental
stimulus. The supreme court in Schreckengast v.
Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985),
recognized that issues of causation can involve
either causation in fact or legal causation. As
stated in footnote 3 at 369 N.W.2d 810:
We have recognized that in both civil
and criminal actions causation in fact
involves whether a particular event in
fact caused certain consequences to
occur. Legal causation presents a
question of whether the policy of the
law will extend responsibility to those
consequences which have in fact been
produced by that event. State v. Marti,
290 N.W.2d 570, 584-85 (Iowa 1980).
Causation in fact presents an issue of
fact while legal causation presents an
issue of law. Id.
That language was the basis of the language in
Desgranges v. Dept of Human Services, (Appeal
Decision, August 19, 1988) which discussed that
there must be both medical and legal causation for
a nontraumatic mental injury to arise out of and
in the course of employment. While Desgranges
used the term medical causation the concept
involved was factual causation. Therefore, in
this matter it is necessary for two issues to be
resolved before finding an injury arising out of
and in the course of employment - factual and
legal causation. Proving the factual existence of
an injury may be accomplished by either expert
testimony or nonexpert testimony.
....
Page 7
Not only must claimant prove that his work was
the factual cause of his mental injury, claimant
must also prove that the legal cause of his injury
was his work. In order to prove this legal
causation claimant must prove that his temporary
mental condition "resulted from a situation of
greater dimensions than the day to day mental
stresses and tensions which all employees must
experience." Swiss Colony v. Department of ICAR,
240 N.W.2d 128, 130 (Wisc. 1976).
The Iowa Supreme Court has not yet determined whether
stress, without accompanying physical injury, may constitute
legal causation. However, this agency has consistently
utilized the "Wisconsin standard" established in Swiss
Colony, 240 N.W.2d 128, in determining whether a
mental-mental injury may be compensable. See, e.g., Render
v. Iowa Department of Human Services, (App. Dec. April 29,
1988); Kostelac v. Feldman's Inc., (App. Dec. June 13,
1990); Kelly v. Sheffield Care Center, (App. Dec. October
31, 1991); and Ohnemus and Desgranges.
Dr. Cavallin, claimant's primary treating psychiatrist,
opined on numerous occasions that claimant's acute reaction
to stress which evolved into a major depressive disorder was
caused by his work environment specifically a climate
created by his supervisors wherein he was denied a promotion
because of his race. Dr. Cavallin admitted that his
opinions were based only on the history given to him either
by claimant or claimant's attorney. (ex. 3, pp. 27-28, 31).
On the other hand, Dr. Taylor felt that claimant experienced
no unusual stress which may have precipitated his subsequent
difficulties. (ex. 4,-1).
Medical causation is strictly an examination into the
cause and effect relationship between the stressors and
tensions at work and the mental difficulties. If the
medical causation issue is resolved in favor of claimant,
legal causation is then examined. The Iowa Supreme Court
has held that medical causation cannot be met and no
workers' compensation benefits can be recovered when
"employment merely provided a stage for the nervous injury."
Newman v. John Deere Ottumwa Works of Deere and Co., 372
N.W.2d 199, 203 (1985). Medical causation fails when it is
shown that claimant had a misperception of the extent of
work stresses in the work place. McAndrew v. Deere and Co.
Davenport Works, file numbers 936569, 735429 (Review-Reopen
Dec. Oct. 15, 1991). In McAndrew, the deputy industrial
commissioner held that claimant's misperception regarding
the employer's safety rules and the fact that claimant felt
the company had a vendetta against him and were out to kill
him were unfounded based on the evidence at the hearing.
Id. at pp. 9-10.
It is unfortunate that claimant's own perception of his
work environment appears to be so distorted that he reacted
in a depressive manner. Claimant's report of discrimination
is much less persuasive than the combined testiony of John
Page 8
Goode and Floyd Faber. Nevertheless, claimant is not
entitled to workers' compensation benefits if the so-called
stressors in his life are not real. "An imaginary event
cannot be a proximate cause of an injury." Newman, 373
N.W.2d at 202. Claimant's internal perceptions must be
consistent with external reality before those perceptions
can form the basis of a compensable work-related injury.
Claimant's beliefs, no matter how sincerely held, are
inadequate to show a causal relationship between his mental
condition and his employment.
After carefully considering all of the evidence in this
case, including the testimony received at the hearing, the
greater weight of the evidence does not support claimant's
claim that his mental condition was caused by his work
environment.
Even if claimant proved by a preponderance of the
evidence that his work environment was the factual cause of
his mental disorder, he must also prove that the legal cause
of his mental problems was his work. Legal causation
involves a determination of whether the work stressors and
tensions, when viewed objectively and not as perceived by
claimant, were out of the ordinary from the countless
emotional strains and differences that employees encounter
daily without serious mental injury. Swiss Colony, N.W.2d
at 130.
To meet the legal causation test, claimant must show
that he encountered a work situation of greater dimensions
than the day-to-day mental stressors which all employees
must experience. Rocher v. Dept. of Community Corrections,
file number 910537 (App. Dec. June 17, 1993).
Claimant's uncorroborated and disputed testimony
alleges that he was promised a promotion from his cashier
position to that of a manager. When Floyd Faber was
appointed manager in November 1989, claimant felt that he
had been betrayed by management. Nevertheless, claimant
continued to work until May 1990 when Dr. Cavallin, who had
only seen him on one occasion took him off work. Claimant
claims that after being with the company for five years and
performing extra duties during the course of his job as a
cashier, he merited a promotion to management. Instead, the
position was given to a younger individual allegedly because
management would not admit blacks into their ranks. When
comparing claimant's credentials to those of Floyd Faber,
claimant's expectations appear unrealistic. Mr. Faber was a
college graduate who had some previous management
experience. Claimant is a high school graduate without
demonstrated comparable management experience.
Qualifications rather than race would appear to be the
motivating factor behind promoting Mr. Faber rather than
claimant.
In any event, claimant must show that he encountered a
work situation of greater dimensions than the day-to-day
mental stressors which all employees must experience. All
work has stressful components including personality clashes
Page 9
with coworkers and supervisors, unpleasant tasks, being
undervalued or not valued by management, and being passed
over for promotions. Neither companies nor managers, no
matter how good their intentions, can eliminate employee
stress.
The greater weight of the evidence does not establish
that claimant's work stress was out of the ordinary or of
greater dimensions than the day-to-day mental stressors and
tensions which all employees must experience. The evidence
before the undersigned does not support claimant's
contentions that he was denied a promotion because of his
race. Claimant failed to show any discriminatory conduct on
the part of employer. Claimant was not promoted because he
was not the best qualified person for the job.
Because claimant has failed to establish both factual
and legal causation, this case must be resolved in favor of
defendants.
ORDER
THEREFORE IT IS ORDERED:
Claimant shall take nothing from these proceedings.
The parties shall pay their own costs.
Signed and filed this ________ day of March, 1994.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Page 10
Copies to:
Mr. Steven Jayne
Attorney at Law
5835 Grand Ave STE 201
Des Moines, Iowa 50312
Ms. Coreen K. Bezdicek
Mr. Roy Irish
Mr. Charles Cutler
Mr. Jeffrey Baker
Attorneys at Law
729 Insurance Exchange Bldg
Des Moines, Iowa 50309
2204
Filed March 17, 1994
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
MICHAEL KNOX,
Claimant,
vs.
File No. 943985 & 943986
SYSTEM PARKING, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
CNA INSURANCE,
Insurance Carrier,
Defendants.
------------------------------------------------------------
2204
In a mental-mental stress case, claimant failed to prove
both medical and legal causation since his perceptions were
not reliable and the work conditions were not of greater
dimensions than the day-to-day stressors which all employees
experience.
Claimant, a black male, claimed that his mental condition
was caused by his work environment. He perceived that he
was not promoted to parking garage manager because of
management's racial discrimination policies.
Claimant's internal perceptions found to be inconsistent
with the external reality. An imaginary event cannot be the
proximate cause of any injury. Newman v. John Deere Ottumwa
Works of Deere and Co., 373 N.W.2d 199, 203 (Iowa 1985).
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
LYNN JEFFRESS, :
:
Claimant, :
:
vs. :
: File No. 944019
FIRESTONE TIRE AND RUBBER, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CIGNA INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration brought by Lynn
Jeffress, claimant, against Firestone Tire and Rubber
Company, employer, and Cigna Insurance Companies, insurance
carrier, for benefits as the result of an alleged injury
which occurred on November 13, 1989. A hearing was held in
Des Moines, Iowa, on May 19, 1992, and the case was fully
submitted at the close of the hearing. Claimant was
represented by Tom L. Drew. Defendants were represented by
Anne L. Clark. The record consists of the testimony of Lynn
Jeffress, claimant; joint exhibit 1 with subparts A, B and C
and joint exhibit 2 with subparts A, B and C.
stipulations
At the time of the hearing claimant withdrew the issue
of penalty benefits and defendants withdrew the issue of
credit for nonoccupational group health plan benefits, both
of which were designated as hearing issues on the hearing
assignment order.
issues
The parties submitted the following issues for
determination at the time of the hearing:
Whether claimant sustained an injury on November 13,
1989, to her right eye which arose out of and in the course
of employment with employer;
Whether the injury was the cause of permanent
disability;
Whether claimant is entitled to permanent disability
benefits; and if so, the extent of benefits to which she is
entitled;
Page 2
Whether, in the event of an award, claimant is entitled
to benefits pursuant to Iowa Code section 85.34(p) or
whether claimant is entitled to benefits under Iowa Code
section 85.34(2)(q); and
Whether claimant is entitled to medical benefits and
medical mileage.
findings of fact
injury
It is determined that claimant sustained an injury to
her right eye on November 13, 1989, which arose out of and
in the course of employment with employer.
Claimant is a five-year employee of employer. She
testified that on November 13, 1989, an air hose caused dust
to get in her eyes. A short time later she felt like
something was scratching in her right eye. Claimant
testified that the plant nurse found something imbedded in
her cornea and ran a Q-tip over it several times trying to
extract it, but it would not come out. The Q-tip procedure
caused claimant a great deal of pain.
The company medical record shows that on November 13,
1989, claimant complained of a foreign body in the right eye
which was located just outside the pupil at nine o'clock.
The note indicates that the nurse was unable to remove it
with a wet Q-tip. Claimant was referred to Louis H.
Fingerman, M.D., an ophthalmologist (exhibit 1, page 22).
Dr. Fingerman recorded on November 13, 1989, that at about 3
a.m. claimant was working with an air hose when a foreign
particle got into her right eye. He removed a tiny
nonmetallic foreign body imbedded in the right cornea (ex.
1, p. 5).
On October 14, 1989, James L. Blessman, M.D., the plant
physician, saw claimant and noted that the cornea was clear,
but that she had multiple flecks of rubber material on both
the upper and lower lid of both eyes (ex. 1, p. 18).
Claimant testified that she continued to have blurring,
irritation, watering, and soreness and returned to
employer's medical department on November 16, 1989, and saw
Dr. Blessman. He found a dendritic pattern in her right
eye. He sent claimant to the ophthalmologist to determine
whether this was a herpes simplex virus or simply the
residuals of her previous foreign body (ex. 1, p. 18).
On November 16, 1989, claimant saw Michael J.
Versackas, M.D., an ophthalmologist and an associate of Dr.
Fingerman, who stated that the small dendritic figures at
the site of the foreign body removal were compatible with a
herpetic keratitis, which he said was evidently triggered by
the trauma of the injury. She continued to have light
sensitivity (ex. 1, p. 5). Dr. Versackas continued to see
claimant on November 20, 1989; November 22, 1989; November
25, 1989; December 1, 1989; and December 5, 1989. On
December 13, 1989, he formed the impression that claimant
Page 3
had herpetic keratouveitis (ex. 1, p. 6). He saw claimant
again on January 8, 1990. On January 22, 1990, he stated
that this was a workers' compensation injury (ex. 1, p. 6).
He continued to see claimant on January 29, 1990; February
12, 1990 and February 20, 1990. On March 26, 1990, he
recorded in his notes:
I sent a letter to Dr. Blessman, the medical
director at Firestone, indicating that I feel that
this is a workman's comp injury because of the
fact that it was triggered by a workman's comp
injury, although I discussed with the patient the
fact that this could only be triggered in a
susceptible person, not in everyone.
(exhibit 1, page 6)
Dr. Versackas continued to see claimant on April 9,
1990, and May 30, 1990. On June 13, 1990, he noted that Dr.
Blessman indicated that although it is possible for trauma
to trigger the infection, he did not feel it should be
considered a workers' compensation injury (ex. 1, p. 7).
Dr. Versackas continued to see claimant on July 13, 1990,
and July 20, 1990. On July 27, 1990, he noted that the
company had decided to call this a workers' compensation
injury and to cover the problems (ex. 1, p. 7). He
continued to see claimant on July 13, 1990; July 20, 1990;
July 27, 1990; August 10, 1990; and September 10, 1990. On
September 13, 1990, he stated that Dr. Blessman, medical
director from Firestone, called on September 13, 1990, and
questioned how much of the injury could be workers'
compensation and how much was related to an underlying
herpetic condition. Dr. Versackas noted, "We discussed the
fact that I felt that the precipitating event based on the
history seemed to have [been] workmen's comp related but
this was admittedly a long-term problem that could last for
months or years and determining how much was workmen's comp
and how much wasn't was something I had great difficulty in
doing." (ex. 1, p. 7).
On October 11, 1990, Dr. Versackas noted that claimant
had central corneal scarring. The doctor saw claimant on
November 10, 1990; November 26, 1990; and February 13, 1990.
On April 9, 1991, Dr. Versackas stated that the corneal
scarring, which was secondary to her previous keratitis
might fade over time (ex. 1, p. 9).
Dr. Blessman stated in a memorandum dated September 28,
1990, that there is a question as to whether this was a
primary herpes keratitis or a recurrence.
Irrespective of whether it was primary or a recurrence,
the facts remain (1) that claimant was asymptomatic prior to
this injury where she received a foreign body in her eye at
work and (2) that keratitis developed at the site of where
the foreign body was removed.
The record is silent as to whether the experience of
the nurse rubbing a Q-tip over the site of the imbedded
foreign object caused or contributed to either the scarring
Page 4
or the keratitis, but the safest practice is to have only an
ophthalmologist remove a foreign body from an eye.
Dr. Blessman speculated that if the infection was
primary, it was probably smoldering in her eye even before
the foreign body because the incubation period is somewhere
around seven to ten days. Dr. Blessman then makes a hearsay
statement that Dr. Versackas told him that claimant had
likely been having recurrent episodes of herpes keratitis in
her eye that were relatively asymptomatic until she got the
foreign body that served as an irritant to the eye and set
up the increased inflammation and symptoms.
With respect to a primary infection, even if the sheer
speculation of Dr. Blessman is accepted that herpes
keratitis was in a seven to ten-day incubation state,
nevertheless, the evidence from the treating physician, Dr.
Versackas, established that the foreign body which entered
claimant's eye at work was the precipitating factor which
caused all of claimant's ensuing problems.
With respect to a recurrence, Dr. Blessman made a
hearsay statement that Dr. Versackas told him that claimant
was having recurrent episodes of herpes keratitis. First of
all, it cannot be found in the evidence from Dr. Versackas
that he ever made such a statement. There is no evidence
that claimant was having recurrent episodes of herpes
keratitis prior to this injury. Furthermore, the testimony
of Dr. Versackas established that the foreign body in the
eye at work triggered the trauma in claimant's right eye.
Claimant denied that she had any similar problems prior
to this injury. Employer's medical records show that on
March 31, 1989, prior to this injury, claimant complained of
something in her right eye and a foreign body was seen at
the center cornea which the plant nurse was unable to remove
(ex. 1, p. 20). On that occasion claimant was sent to Dr.
Fingerman and he found a metal foreign body with an
associated rust ring on the central cornea which he treated
and removed (ex. 1, p. 5). Claimant testified that she had
no further troubles after this incident. She did not miss
any work. She had no blurring or other visual problems.
Prior to that the company medical records show that on June
24, 1988, claimant complained of something in her right eye,
no foreign body was seen, the cornea was clear and the eye
was flushed (ex. 1, p. 19).
Even assuming claimant had a preexisting eye condition
which was latent or which predisposed the herpes keratitis
and even assuming that claimant was susceptible to herpes
keratitis, nevertheless, it was the foreign body in the
right eye on November 13, 1989, which precipitated all of
the treatment which followed after that incident.
An employer takes an employee is as is condition and,
therefore, takes the employee subject to any active or
dormant health impairments. Lawyer and Higgs, Iowa Workers'
Compensation--Law and Practice, (2d ed.) section 4-2, page
23. In Iowa, the workers' compensation statute prescribes
no standard of fitness to which the employee must conform
Page 5
and compensation is not based upon any implied warranty of
perfect health or of immunity from latent and unknown
tendencies to disease, which may be develop into positive
ailments, if incited to activity through any cause
originating in the performance of the work for which the
employee is hired. Hanson v. Dickinson, 188 Iowa 728, 732,
176 N.W. 823, 824 (1920).
A preexisting condition which is aggravated or
accelerated or lighted up by employment activity is deemed a
personal injury under the Iowa Workers' Compensation Law.
Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962);
Jacques v. Farmers Lumber & Supply Co,, 242 Iowa 548, 47
N.W.2d 236 (1951); Fraze v. McClelland Co., 200 Iowa 944,
205 N.W. 737 (1925); Farrow v. What Cheer Clay Prod. Co.,
198 Iowa 922, 200 N.W.625 (1924).
Dr. Blessman further related that he visited with two
other eye specialists in Des Moines, specifically, Dr.
Silberman and Dr. Rullan, and it was their opinion that
herpes keratitis was due to an infection and would not be
particularly related to the foreign body or injury that
occurred here at work, but was more likely a more general
medical disease (ex. 1, p. 17). The hearsay statements of
Dr. Silberman and Dr. Rullan via the route of Dr. Blessman
on the ultimate fact of causal connection to be decided in
this case is unacceptable evidence. Furthermore, since Dr.
Blessman is the plant physician, these hearsay remarks may
well be self-serving. If defendants wanted the evidence of
Dr. Silberman and Dr. Rullan considered in the determination
of the issues in this case, they should have obtained their
statements firsthand by either written report or deposition
rather than hearsay statements from the employer's medical
director.
Dr. Blessman also stated that Dr. Versackas told him,
another hearsay statement, that claimant's future long-term
care would not be considered work related (ex. 1, p. 17),
however, Dr. Versackas himself stated that he was not able
to make such a determination because of the great difficulty
in doing so (ex. 1, p. 7).
Dr. Blessman added one more hearsay statement by
stating that it was Dr. Versackas' definite opinion that the
patient had recurrent herpes keratitis in the past and the
foreign body simply flared it up and made it more
symptomatic temporarily (ex. 1, p. 17). A close examination
of all of Dr. Versackas' office notes and reports does not
support this statement of Dr. Blessman. Furthermore, even
if the statement was true, defendants are liable for an
aggravation of a preexisting condition even if that
preexisting condition originates apart from claimant's
employment. Lundquist v. Firestone Tire and Rubber Co.,
IAWC 371 (App. Dec. 1989).
An employee is not entitled to compensation for the
result of a preexisting injury or disease, but when the
preexisting injury or disease is aggravated, accelerated,
worsened, lighted up, then defendants are liable to the
Page 6
extent that the injury or aggravation of the preexisting
condition causes medical treatment, time off work or
permanent disability. Yeager v. Firestone Tire and Rubber
Co., 253 Iowa 369 112 N.W.2d 299 (1961). Claimant testified
that she had no knowledge of any previous herpes keratitis
nor had she experienced any similar symptoms prior to the
injury of November 13, 1989. Claimant's two prior right eye
problems appear to have occurred at work and were treated by
the plant medical department or Dr. Fingerman on June 24,
1988, and March 31, 1989 (ex. 1, pp. 20-21) rather than
independent of her employment.
J.D. Barker, O.D., a doctor of optometry, stated that
he had seen claimant on December 4, 1987, at which time she
had 20/20 vision and no scars on her cornea. He performed
and independent evaluation for claimant on September 12,
1991, and found a dense corneal scar, triangular in shape
with the base at the nine o'clock position and the tip of
the triangle approaching on the central cornea. Dr. Baker
stated:
...Because the only significant event in her
history since 1987 was the injury and subsequent
dendritic ulcer in the right eye, I would conclude
that her scarring and decrease in vision is a
direct result of her accident and subsequent
scarring. It has been well established in
literature that dendritic ulcers can be triggered
by traumatic injuries to the eye. The scarring
left on Lynn's cornea will likely result in a
permanent vision loss.
(exhibit 1, pages 10-11)
On November 16, 1989, Dr. Versackas said that the small
dendritis figures at the site of the foreign body removal
were compatible with a herpetic keratitis which was
evidently triggered by the trauma of the injury (ex. 1, p.
5). On January 2, 1990, he said that this was a workers'
compensation injury (ex. 1, p. 6).
Dr. Versackas wrote to Dr. Blessman on March 26, 1990,
that this injury was the cause of claimant's injury and
disability. Dr. Versackas stated:
This letter is to certify that I have examined
Lynn Jeffress on numerous occasions in my office.
On November 16, 1989, the patient was noted to
have herpetic keratitis that seemed to have been
triggered by the trauma of a work-related foreign
body 3 days earlier. It is known that trauma can
trigger herpetic keratitis in susceptible
individuals. For this reason, I feel that the
patient's multiple exams since that time should be
considered workman's compensation.
(exhibit 1, page 2)
On September 13, 1990, Dr. Versackas clearly told Dr.
Page 7
Blessman that the precipitating event made this a workers'
compensation claim in his opinion (ex. 1, p. 7).
Wherefore, it is determined that claimant did sustain
an injury to her right eye on November 13, 1989, which arose
out of and in the course of employment with employer.
The direct, firsthand, clear, unequivocal, and
convincing statements of Dr. Versackas and Dr. Barker are
preferred over the speculative remarks and hearsay
statements of Dr. Blessman. Dr. Versackas was the treating
physician. He saw claimant on numerous occasions. He was
responsible for the ultimate success or failure of his
treatment. Dr. Blessman, on the contrary, was the plant
physician, with a decided interest in the outcome of the
case who appeared to be building a construction of the case
to bring about a negotiated settlement. Rather than an
independent evaluator he appears to be a partisan advocate.
Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187,
192 (Iowa 1985).
causal connection-entitlement-permanent disability
It is determined that the injury was the cause of
permanent disability. This is established by the testimony
of Dr. Versackas and Dr. Barker.
It is determined that claimant has sustained a 10
percent permanent impairment and disability to her right
eye. Dr. Barker testified that claimant's vision in the
right eye had been decreased since the injury and subsequent
bout with dendritic ulcer and iritis and that her best
corrected vision was 20/25 in the right eye. He said that
her corneal opacity has decreased her vision approximately 5
to 10 percent so that she now has 90-95 percent of normal
vision in her right eye (ex. 1, p. 10).
Dr. Versackas opined on April 9, 1991, that claimant's
best corrected visual acuity in her right eye was 20/30 and
that her right eye still demonstrated the corneal scarring
that was a result of her previous corneal infection (ex. 1,
p. 1). It should be noted that this infection occurred at
the site where the foreign body was removed. Dr. Versackas
concluded, "Your visual acuity of 20/30 amounts to 90
percent efficiency of vision." (ex. 1, p. 1).
Wherefore, it is determined that claimant has sustained
a 10 percent permanent loss of vision in her right eye based
upon the direct testimony of Dr. Versackas and Dr. Barker.
Dr. Versackas' remark that the scar may fade over time is
only a possibility, not a probability, and is speculative at
best.
IOWA CODE SECTION 85.34(p) - IOWA CODE SECTION
85.34(2)(q)
It is determined that claimant's loss is to be
compensated for under Iowa Code section 85.34(2)(p) which
states that the permanent partial disability compensation
shall be 140 weeks for the loss of an eye. Therefore,
Page 8
claimant is entitled to 10 percent of 140 weeks which is 14
weeks of permanent partial disability benefits.
Claimant is not entitled to benefits under Iowa Code
section 85.34(2)(q) because that section, which allows 200
weeks of benefits, requires, "...the other eye having been
lost prior to the injury..." It is difficult to state that
the left eye has been lost when the left eye vision is
correctable to 20/20 as stated by Dr. Versackas (ex. 1, p.
1).
Claimant contends that the code section does not
require a complete loss of the other eye. It is not
necessary to determine that point in this decision for the
reason that claimant's vision is correctable to 20/20 in the
left eye and under any definition it is impossible to say
that the vision of the left eye has been lost, whereas, in
the right eye a definite permanent loss of vision was
established.
medical benefits
It is determined that the injury was the cause of all
of the treatment for claimant's right eye and more
specifically, claimant is entitled to all of the treatment
of Dr. Versackas, and in particular, the remaining balance
of $186 (ex. 2, pp. 26-27). Likewise, claimant is entitled
to $69.93 in mileage to see Dr. Versackas at the rate of 21
cents per mile for 330 miles as illustrated in exhibit 2,
page 28.
conclusions of law
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
That claimant sustained the burden of proof by a
preponderance of the evidence that she sustained an injury
to her right eye on November 13, 1989, which arose out of
and in the course of employment with employer. Iowa Code
section 85.3(1); McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Central Telephone Co., 261
Iowa 352, 154 N.W.2d 128 (1967).
That claimant sustained the burden of proof by a
preponderance of the evidence 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 Co., 236
Iowa 296 18 N.W.2d 607 (1945).
That claimant sustained the burden of proof by a
preponderance of the evidence that she is entitled to 14
weeks of permanent partial disability benefits for a
scheduled member injury to her right eye of 10 percent of
140 weeks. Iowa Code section 85.34(2)(p).
That claimant has sustained the burden of proof by a
preponderance of the evidence that she is entitled to past
Page 9
and future medical expenses by Dr. Versackas for this eye
injury and related herpetic keratitis and in particular, the
$186 owed to Dr. Versackas and $69.93 for medical mileage.
order
THEREFORE, IT IS ORDERED:
That defendants pay to claimant fourteen (14) weeks pf
permanent partial disability benefits at the stipulated rate
of three hundred seventeen and 46/100 dollars ($317.46) in
the total amount of four thousand four hundred forty-four
and 44/100 dollars ($4,444.44) commencing on April 9, 1991,
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 defendants pay to claimant or the provider of
medical services the bill of Dr. Versackas in the amount of
one hundred eighty-six dollars ($186) and the medical
mileage in the amount of sixty-nine and 93/100 dollars
($69.93).
That claimant is entitled to future medical treatment
for the corneal scar or the herpetic keratitis with the
physician or physicians authorized by defendants.
That the costs of this action, including the filing fee
in the amount of sixty-five dollars ($65) and the cost of a
report from Dr. Barker in the amount of ten dollars ($10),
are charged to defendants pursuant to rule 343 IAC 4.33 and
Iowa Code section 86.40.
That defendants file claim activity reports as
requested by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of May, 1992.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Tom L. Drew
Attorney at Law
1200 35th St. STE 500
West Des Moines, Iowa 50265
Ms. Anne L. Clark
Attorney at Law
2700 Grand Ave, STE 111
Des Moines, Iowa 50312
Page 10
Page 1
1108.50; 51401; 51402.20;
1402.20; 1402.30; 52206; 1803;
52501; 52700
Filed May 21, 1992
Walter R. McManus, Jr.
before the iowa industrial
commissioner
____________________________________________________________
:
LYNN JEFFRESS, :
:
Claimant, :
:
vs. :
: File No. 944019
FIRESTONE TIRE AND RUBBER, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CIGNA INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1108.50 51401 51402.20 1402.30 52206
Claimant was determined to have sustained an injury arising
out of her employment when she got a foreign body imbedded
near the cornea of her right eye at work while working near
an air hose. It was further determined that the traumatic
injury triggered herpetic keratitis, even though claimant
had to be susceptible to it in order for it to occur.
Treating ophthalmologist and an optometrist evaluator for
claimant established causal connection clearly and
unequivocally.
Defendant employer's medical director attempted to fashion a
case for a negotiated settlement based on speculation and
hearsay information from other doctors (much of which was
disproved). The medical director's speculation and hearsay
evidence was not acceptable to determine the ultimate fact
questions in dispute. Furthermore, he appeared to be
serving in the roll of a partisan advocate rather than a
medical doctor with an independent, unbiased medical opinion
of his own. It was determined that the foreign object in
the eye, the subsequent corneal scarring, and the lighted
up herpetic keratitis were all caused by the traumatic
injury at work.
1803
Treating ophthalmologist and evaluating optometrist both
Page 2
found a 10 percent permanent impairment. Claimant awarded
14 weeks of permanent partial disability based on a 10
percent impairment using 140 weeks pursuant to Iowa Code
section 85.34(2)(p).
It was further determined that claimant was not entitled to
10 percent of 200 weeks based on Iowa Code section
85.34(2)(q) for the reason that claimant had not lost the
vision in the other eye prior to the injury. Claimant did
have impaired vision in the other eye, but it was
correctable to 20/20. The award for the injured right eye
was for loss that could not be corrected.
52501 52700
Claimant was awarded medical benefits. Defendant employer's
medical director constructed a case based on his own
speculation and hearsay evidence from other doctors (much of
which was disproved) to force a compromise settlement by
claimant. Claimant was awarded the unpaid medical expenses
of the treating ophthalmologist and her unpaid medical
mileage to see the ophthalmologist. Defendants were also
ordered to provide future care for either the traumatic eye
injury, the corneal scar or the herpetic keratitis.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
PATTY GUE, :
:
Claimant, :
:
vs. :
: File No. 944022
MCDONALD'S, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
KEMPER GROUP, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
Claimant Patty Gue seeks benefits under the Iowa
Workers' Compensation Act upon her petition in arbitration
against defendant employer McDonald's and its insurance
carrier, Kemper Group. Claimant asserts that a work injury
of June 30, 1990 left her with residual disability in the
low back.
This cause came on for hearing in Council Bluffs, Iowa
on February 1, 1993. The record consists of joint exhibits
1-13 and the testimony of claimant, Thomas Gue and Kim
Eisenberg.
issues
The parties have stipulated that claimant sustained
injury arising out of and in the course of her employment
with McDonald's on June 30, 1990, that the injury caused
temporary disability and that certain benefits were
voluntarily paid prior to hearing.
Issues presented for resolution include:
1. The extent of healing period/temporary disability;
2. Whether the injury caused permanent disability, and
if so, the extent thereof;
3. The rate of compensation.
Page 2
findings of fact
The undersigned deputy industrial commissioner finds:
Patricia Gue, 41 years of age at hearing, is a 1970
high school graduate whose work history discloses a rather
peripheral attachment to the labor market.
While in high school, claimant worked a part time,
minimum wage job as a carhop and a part time, minimum wage
job as a child care worker for several months. In 1970, she
held a full time job as a sewer for a woolen mill for two
months. Thereafter, she quit to travel with her husband.
In 1974, she returned to Council Bluffs and worked
approximately seven months in a minimum wage job operating a
glue machine for an enterprise known as Blue Ribbon. She
next worked approximately two months in a part time, minimum
wage job with a hamburger chain, then was off work five
years until working approximately one and one/half months
for Capitol Tape. She next was off work for approximately
ten years, before taking work as a custodian in 1989 for
Bethany Lutheran Home. After being discharged (she falsely
reported to a vocational rehabilitation counselor that she
had left employment due to family illness) she was off work
approximately six months before seeking and obtaining work
with defendant McDonald's, a fast food hamburger restaurant.
Claimant was hired as a part time line worker.
McDonald's has no full time employees, except for
management. During her short tenure, claimant was not
placed in any special training program, but simply worked a
variety of different jobs in the same fashion as all other
part time line workers. Nothing whatsoever was unusual
about her status. On ten different working days between
June 18 and June 30, 1990, claimant worked a total of 53.1
hours (at minimum wage, $3.85 per hour). On her two best
days, she worked over seven hours, but less than eight
hours.
Claimant takes the position that she was more or less
promised a full time position after her children returned to
school and she was "trained." The evidence completely fails
to support this assertion.
Ms. Gue suffered her work injury when she slipped on
ice in a walk-in freezer and fell awkwardly. Suffering from
pain in the right foot and back, she tried to work for a
while longer, then left. She was seen later that day at the
Mercy Hospital Emergency Room, where she complained of pain
in the mid back, right lower leg, ankle and foot. Minimal
swelling was seen at the right ankle and some muscle spasm
was present in the back. Radiological studies by D. T. Van
de Water, M.D., were normal as to the right ankle and lumbar
spine, and showed degenerative changes at the first MP joint
with no acute abnormality evident and slight degenerative
change in the lower thoracic spine. Again, no acute
abnormality was evident. Discharge diagnosis was of
thoraco-lumbar strain; sprain of the right foot and ankle.
No permanent disability was anticipated by the treating
Page 3
physician.
Claimant was next seen by Edward R. Farrage, M.D. His
report of August 14, 1990 reflected a diagnosis of dorsal
and right ankle sprain which was not anticipated to result
in permanent disability.
Dr. Ferrage referred claimant to an orthopedic
specialist, James R. Rochelle, M.D. Dr. Rochelle treated
with physical therapy, keeping claimant off work and
encouraging her to exercise by walking. His chart notes of
August 17 showed complaints of significant pain in the base
of the cervical spine with radiation into the right
shoulder. Claimant's "high muscle tension is exacerbating
her pain symptoms." By August 29, Dr. Rochelle diagnosed
lumbar, cervical and right shoulder strains, improved.
Claimant was next treated by Charles Taylon, M.D.
Although his chart notes are not in evidence, Dr. Taylon
apparently treated claimant into 1991. On February 13,
1991, he concluded that Ms. Gue had reached maximum medical
improvement and assigned her a three percent permanent
partial "disability" to the body as a whole. On March 6,
Dr. Taylon assigned medical restrictions of 25 pounds
lifting with no repetitive bending or twisting and limited
sitting and standing to two hours at a stretch with
associated rest periods. Dr. Taylon's diagnosis as of
September 24, 1990 was of a mechanical musculoligamentous
injury to the spine.
Claimant twice attempted to return to work, working
5.62 hours on July 9 and 4.10 hours on July 18, 1990. She
complains that she was unable to continue working and,
indeed, concedes that she has never looked for work since
due to residual complaints of back pain. She complains that
she is unable to sit or stand for prolonged periods, that
she needs help doing grocery shopping, that she is unable to
walk more than 20-30 minutes and that her sleep patterns are
disturbed. She disagrees with the 25 pound lifting
restriction imposed by Dr. Taylon, noting that she has
problems lifting her 14 pound dog.
Defendants offered vocational rehabilitation services
through several companies. Jim Weiss of Rehabilitation
Management, Inc., furnished written job descriptions for
file clerk and general office clerk to Dr. Taylon, who
agreed she could do either job full time. However, claimant
advised Weiss that she did not feel she could work, so
vocational rehabilitation efforts were discontinued.
Claimant says that she was never told that Dr. Taylon had
approved full time work at the file clerk or general office
clerk jobs described in the evidence.
Claimant was also seen for evaluation on July 27, 1992
by Joel T. Cotton, M.D., a neurologist. Dr. Cotton found
claimant's neurological examination to be normal with no
evidence of residual physical injury to the thoracic spine
or to the right ankle. In the thoracic spine, claimant was
found to have normal range of motion, no areas of tenderness
to palpation and no evidence of perivertebral spasm.
Page 4
Claimant's spinal complaints were confined to the thoracic
spine region. There was no evidence of complaint or injury
to the cervical spine or lumbar spine. Dr. Cotton assigned
a two percent impairment rating to the body as a whole
strictly on the basis of persisting complaints of pain,
although finding no objective evidence of injury.
Similarly, Dr. Cotton was unable to find evidence of
residual physical injury to the right ankle.
Dr. Cotton found that claimant was capable of returning
to all usual and customary activity without restriction, as
there was no functional limitation applicable on the basis
of any residual physical injury. Dr. Cotton found that Dr.
Taylon's restrictions are of March 1991 may have applicable
at that time, but would not be expected to be of a permanent
nature. Dr. Cotton believed that as of June 30, 1991,
claimant should have been capable of returning to all usual
and customary activity without restriction.
conclusions of law
As noted above, the parties agree that claimant
sustained injury arising out of and in the course of
employment and that the injury caused temporary disability,
although the extent is disputed. Temporary disability is
compensable as a healing period under Iowa Code section
85.34 in cases causing permanent partial disability. It is
compensable as temporary total or temporary partial
disability under section 85.33 where no permanent disability
exists.
Because claimant's injury was to the body as a whole,
any permanency must be compensated industrially.
Industrial disability was defined in Diederich v.
Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as
follows: "It is therefore plain that the legislature
intended the term 'disability' to mean 'industrial
disability' or loss of earning capacity and not a mere
'functional disability' to be computed in the terms of
percentages of the total physical and mental ability of a
normal man."
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications,
experience, motivation, loss of earnings, severity and situs
of the injury, work restrictions, inability to engage in
employment for which the employee is fitted and the
employer's offer of work or failure to so offer. Olson v.
Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963);
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980);
Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660
(1961).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
Page 5
Although Ms. Gue complains of continued pain, pain
itself is not compensable absent a diminution of earning
capacity and, absent objective findings, is not equivalent
to impairment. Waller v. Chamberlain Manufacturing, II Iowa
Industrial Commissioner Report 419 (1981).
Two physicians have rendered opinions as to functional
disability and medical restrictions. Dr. Taylon, a treating
physician, imposed medical restrictions in 1991 based,
apparently, on his earlier diagnosis of mechanical
musculoligamentous injury. Dr. Cotton, an evaluating
physician, rated impairment based strictly on subjective
complaints, but found no residual objective signs of injury
and recommended no activity restrictions whatsoever.
It is not necessarily the case that a treating
physician's opinion should be given greater weight than that
of a later physician who examines claimant in anticipation
of litigation. Rockwell Graphic Systems, Inc., v. Prince,
366 N.W.2d 187 (Iowa 1985). Rather, factors such as
education, compensation, the day of examination, and
experience go to the value of that opinion as a matter of
fact, not law.
In this case, Dr. Cotton's opinion should be given
greater weight. Not only did he see claimant much more
recently than did Dr. Taylon, but his opinions are backed up
by a detailed and explanatory report. Dr. Taylon's opinion
exists in a vacuum. He does not explain whether any
objective signs of injury were found in early 1991 or what
factors went into his assignment of an impairment (or, in
his words, "disability") rating.
Dr. Cotton not only finds no residual objective signs
of impairment, but releases claimant to any activity which
she might previously have performed. Although claimant is
not now working, it appears that she has little if any
motivation to work (even Dr. Taylon agreed that she could
perform file clerk and general office duties) and has shown
a lifetime attachment to the labor market that is tenuous at
best. No diminution of earning capacity exists: ergo, no
award of industrial disability is justified.
Under Iowa Code section 85.33(1), temporary total
disability is payable until the employee has returned to
work or is medically capable of returning to substantially
similar employment, whichever first occurs. Although Dr.
Taylon released claimant in early 1991, he did so with
restrictions. Dr. Cotton's more persuasive opinion notes
that claimant should have been completely healed within one
year of the original injury. Fifty-two weeks of temporary
total disability shall be awarded.
The parties also dispute the appropriate rate of
compensation. Claimant takes the position that rate should
be calculated under Iowa Code section 85.36(10)(b), as an
apprentice or trainee at the time of injury. Under that
subsection, status as an apprentice or trainee whose
earnings should be expected to increase during the period of
Page 6
disability may be considered in computing average weekly
earnings.
Defendants, on the other hand, point out that claimant
was a part time worker and believe that compensation should
be calculated under Iowa Code section 85.36(10) on the basis
of 1/50th of total earnings from all employment during the
twelve calendar months immediately preceding the injury.
Neither contention is correct. Claimant as a matter of
fact was simply not in an apprentice or trainee status at
the time of her injury. She was a part time line employee
no different from many others.
On the other hand, it cannot be said (as required by
85.36(10)) that claimant earned either no wages or "less
than the usual weekly earnings of the regular full-time
adult laborer in the line of industry in which the employee
is injured in that locality." Defendants cite as precedent
the recent decision of Lamb v. Betner, Inc., File Number
833231 (Appeal Decision November 30, 1992). That case also
involved a part time employee injured at a McDonald's
restaurant. However, the case must be distinguished. The
Commissioner found in Lamb that the evidence showed there
were regular full time employees working for that employer
and other McDonald's stores in the Waterloo, Iowa area. The
record in this case is completely different. The store in
question and other McDonald's in the Council Bluffs area
hire no full time workers, except for management.
Therefore, 85.36(10) is inapplicable since the record does
not show that regular full time adults laborers in that line
of industry exist in this locality.
Since claimant was paid an hourly wage, her rate of
compensation should be calculated under section 85.36(6) and
(7), since claimant had been in defendants' employ less than
thirteen calendar weeks immediately preceding the injury.
Therefore, her weekly earnings must be computed by dividing
by thirteen the earnings earned in the last period of
thirteen weeks, considering the amount the employee would
have earned had she been employed for the full thirteen
calendar weeks immediately preceding the injury.
Claimant was injured on her thirteenth day of
employment, not divisible evenly by weeks. Of those
thirteen days, she worked ten, as follows: five days
worked, two days off, one day worked, one day off, four days
worked. The record does not show whether claimant was
scheduled to work July 1. In the absence of proof, it would
be speculative to consider how many hours claimant would
have worked on the fourteen day, if any.
During her two weeks of employment prior to the injury,
claimant worked 53.10 hours, or an average of 26.55 hours
per week. At an hourly wage of $3.85, this is an average
weekly wage of $102.22. This is held to be claimant's
average gross weekly wage for purposes of calculating rate.
The parties have stipulated to a marital status of married
and four exemptions. According to the rate book published
by this office and in effect at the time of claimant's
Page 7
injury, an individual so situated is entitled to a weekly
rate of $88.79.
Defendants have paid a total of $732.60 in weekly
benefits.
order
THEREFORE, IT IS ORDERED:
Defendants shall pay unto claimant fifty-two (52) weeks
of temporary total disability benefits commencing July 1,
1990 at the rate of eighty-eight and 79/100 dollars ($88.79)
per week, totalling four thousand six hundred seventeen and
08/100 dollars ($4,617.08).
Defendants shall have credit for all benefits
voluntarily paid prior to hearing.
Defendants shall file claim activity reports as
required by the agency.
The costs of this action are assessed to defendants.
Signed and filed this ____ day of February, 1993.
________________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Sheldon M Gallner
Attorney at Law
803 Third Avenue
PO Box 1588
Council Bluffs Iowa 51502
Mr Thomas M Plaza
Attorney at Law
701 Pierce Street Ste 200
PO Box 3086
Sioux City Iowa 51102
3000.2
Filed February 11, 1993
DAVID R. RASEY
before the iowa industrial commissioner
____________________________________________________________
:
PATTY GUE, :
:
Claimant, :
:
vs. :
: File No. 944022
MCDONALD'S, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
KEMPER GROUP, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
3000.2
Claimant was a part time line worker for a McDonald's
restaurant at minimum wage. She was held not to be in a
training or apprentice status under section 85.36(10)(b) as
asserted by claimant. Distinguishing Lamb v. Betner, Inc.,
File Number 833231 (Appeal Dec., November 30, 1992), rate
was not calculated under section 85.36(10) as 1/50th of the
previous year's total earnings, because the record failed to
show that "regular full time adult laborer(s)" existed in
that line of industry in claimant's locality. The only full
time employees maintained by McDonald's were management
people. Since claimant was injured in her second week of
employment, rate was calculated under 85.36(6) and (7) based
on what her earnings would likely have been if she had
worked thirteen weeks prior to injury.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
STEVE KELSO, :
: File No. 944038
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
MAYTAG COMPANY, :
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition
of claimant, Steve Kelso, against his self-insured employer,
Maytag, defendant. The case was heard on October 12, 1993
at the office of the Industrial Commissioner. The record
consists of joint medical exhibits 1-12 and non-medical
exhibits 1-3. The record consists of the testimony of
claimant. The record also consists of the testimony of
Jeffrey L. Boldt, physician's assistant, and Randy Claussen,
Manager of Labor Relations. It is noted that a number of
the offered exhibits were of such poor quality that the
deputy industrial commissioner could not read them.
ISSUES
The issues to be determined are: 1) Whether claimant is
entitled to any permanent partial disability benefits and,
if so, whether claimant's permanent injury is a scheduled
member injury or whether he has sustained an industrial
disability; and 2) whether claimant is entitled to an
independent medical examination pursuant to section 85.39 of
the Iowa Code.
FINDINGS OF FACT
The deputy, having heard the testimony and considered
all of the evidence, finds:
Claimant is 39 years old. He is single and the father
of five children. Claimant described his educational
background. He completed the eleventh grade. However, he
does not have a high school diploma. Nor does he have a
GED.
Following his education, claimant held a variety of
jobs. He worked as a machinist on at least two occasions.
He was required to operate lathes and drills. He served as
an apprentice to a body shop where he was required to mix
paint.
Page 2
Claimant worked as a mechanic where he repaired
construction equipment for two and one half years. He also
worked on construction. He was an independent contractor
for approximately five years. Claimant testified he only
earned from $7,000.00 to $12,000.00 per year.
Next, claimant worked at an apartment complex where he
was the head of the maintenance department. He earned
$1,000 per month plus he received an apartment which was
free of charge. Claimant held this position until he
commenced his employment with this defendant.
In 1986 claimant was hired by defendant. For the first
three months of his employment, claimant was employed as a
loader-unloader. His duties consisted of flipping the
spinners of automatic washers. The spinners weighed from 28
to 32 pounds. He was next required to remove spinners from
the line, to push several buttons, to spray the spinners, to
flip them over and place them on another line. Claimant
handled from 150 to 300 per hour. He held that position for
approximately seven months.
Next, claimant worked on the inspection line. He stood
on a platform and he inspected the spinners for chips, then
he would place the spinners onto another line. Sometimes he
would be required to stack five spinners together. He held
the position for five to six months.
Claimant was then transferred to the top cover line.
This was a two handed job. He was required to remove parts
in the control panel and to inspect them. Claimant
testified there was considerable rotation of his hands.
Claimant was then assigned to a clean up job. He used
a shovel four to six hours per day and he scooped wet
porcelain which weighed more than 15 pounds. At times
claimant indicated the weight of the wet porcelain weighed
as much as 50 to 100 pounds.
In May of 1990, claimant complained to the company
medical staff that he was experiencing difficulties with his
upper extremities. As of May 8, 1990, claimant reported to
the company nurse:
S: This male presnets [sic] to the clinic with
complaints of some cramping in his hands and
numbness and tingling in his hands and forearms
for approximately 1 1/2 months. He relates last
evening they work [sic] him up in the middle of
the night with cramping in both his hands. He
relates he has done the same job for approximately
two years which required some repetitive outward
rotation of his rt. and left hand with small light
parts. Denies any injury or trauma to the area.
O: patient [sic] has strong and equal
bilateral hand grasps. Range of motion of the
wrists without discomfort. Phalen' [sic] and
Tinel's is negative.
Page 3
A: Bilateral hand wrist strain. Plan T:
Patient was started on Vitamin B6 six tablets per
day. Instructed to use intermittent ice to the
area. Was fitted with some plastic stay wrist
braces and instructed to return for re-examination
on 5-15-90 or sooner if problems worsen.
(Exhibit 1, pages 8 & 9)
In July of 1990, Dr. Carlstrom performed a surgical
release of a left ulnar neuropathy. The neurologic exams
revealed that claimant had mild weakness of the left ulnar
distribution (Ex. 4, p. 69).
Claimant did not improve over time. Consequently, Dr.
Carlstrom performed a second surgery on the left arm in
November of 1990. The physician re-explored the left ulnar
nerve because of persistent complaints of pain (Ex. 2, p.
49). Claimant was restricted from work for approximately 14
months. He underwent physical therapy at the Iowa Methodist
Medical Center. He participated in the Medlink work
hardening program which was available at Methodist Hospital.
The medical staff assisted claimant in a work re-entry
program. Claimant was also prescribed a tens unit. The
staff at the work re-entry program determined claimant had
received maximum benefit from the program.
On December 19, 1990, Dr. Carlstrom opined the
following in his report of the same date:
I saw Steven Kelso today. He is still having
the same symptoms in his left arm that he has been
having, though perhaps they might be a little less
bothersome. He is also having some discomfort in
his right arm.
The exam remains mildly remarkable with
discomfort in the flexor muscles of the forearm
and tenderness over the elbow. The neurologic
function is normal, however.
I think this patient has reached maximum
benefits of healing. I think he probably has
sustained an impairment of about 15% of the left
arm and 5% of the right arm from a repetitive
motion myofascial injury. I don't think any
further surgical treatment is warranted, nor do I
see any point in any further evaluation.
(Ex. 9, p. 135)
Robert A. Hayne, M.D., Dr. Carlstrom's partner,
computed Dr. Carlstrom's rating as an impairment rating of
12 percent to the body as a whole (Ex. 9-138).
Craig DuBois, M.D., of the Iowa Pain Management Center,
examined and evaluated claimant. Dr. DuBois diagnosed
claimant as having: "Neuritis persistent in the ulnar nerve
despite transposition in release" (Ex. 3, p. 56). Later,
Page 4
Dr. Dubois opined that claimant's condition was:
1. Persistent left arm pain at the medial
aspect of the elbow with suspected inflamed ulnar
nerve persisting. It does appear that this is
exacerbated with activity and has recently
improved with decrease in his use of the elbow at
work.
The long term problem here is that the patient
does not want to have injections into the area
which is one of option [sic] to consider yet and
also he just does not feel that the area is
appropriately healed, diagnosed and treated. I
genuinely believe this patient does have some
persistent ulnar irritation exacerbated by use of
the flexor bundles in the elbow forearm junction.
(Ex. 3, pp. 61-62)
In September of 1991, claimant was allowed to return to
work with certain restrictions (Ex. 1, p. 21). The
restrictions included maximum lifting of 15 pounds and
claimant was to avoid the repetitive use of his arms (Ex. 1,
p. 21). Later the restrictions were modified to no
repetitive movements after 30 minutes (Ex. 1, p. 24).
Claimant returned to work. However, he indicated to
the medical personnel at the job site that he was
experiencing severe cramping in his hands and forearms.
Several conservative methods for treatment were prescribed.
He received several cortisone injections in his left elbow
(Ex. 1, p. 26). The injections were of no assistance to
him.
Because claimant's condition did not improve, EMG
studies were conducted in June of 1992 (Ex. 7, p. 100). The
tests revealed the following:
SUMMARY: The nerve conduction studies are
normal. The needle examination reveals high
amplitude, long duration motor unit potentials and
fasciculations in the distal ulnar innervated
muscles bilaterally.
INTERPRETATION: The EMG is consistent with
bilateral non-localized ulnar neuropathies.
(Ex. 7, p. 100)
While he was participating in the programs at the Iowa
Methodist Medical Center, claimant was seen by the director
of Occupational Medicine. Michael J. Makowsky, M.D.,
examined and treated claimant. He also referred claimant to
the Mayo Clinic for a second opinion. Dr. Makowsky opined
the following in his report of September 9, 1993:
You requested my comments about a partial
permanent impairment. Dr. Carlstrom previously
assigned him a permanent impairment of 15% of the
Page 5
left arm. This was secondary to the residual from
the ulnar nerve surgery at the elbow. I feel that
this is an appropriate impairment of the left
upper extremity as it relates to the ulnar nerve
surgery. Mr. Kelso has had complete resolution of
his symptoms caused by the compression of the
medial nerve at the elbow and forearm. I do not
think he has any permanent impairment as a result
of the pronator teres syndrome.
He has a right ulnar neuropathy documented by
EMG nerve conduction study, which translates to a
3-5% permanent partial impairment to the right
upper extremity.
The patient is currently complaining of chronic
pain. I think his chronic pain is secondary to
the surgery over the ulnar nerve. I think his
dysfunction and need for permanent restrictions is
related to his left ulnar nerve surgery and not
related to the pronator teres and median nerve
surgery. The functional impairment is that of the
elbow and distal to the elbow. I think he may
have a chronic pain syndrome which results in
disability of the arm which does not result in
impairment. His current restrictions are due to
his problems in the elbow and not as it relates to
the surgery performed by Dr. Linscheid.
In Dr. Smith's independent medical evaluation,
there were comments to the effect on page 2 of his
office notes, paragraph three that patient really
had no real improvement following surgery. I
would agree that the patient had no improvement of
his elbow symptoms, but he did have improvement of
his symptoms that were in his left forearm. I did
not think the patient's real problem or functional
impairment of his left elbow has changed very much
since Dr. Carlstrom initially assigned the 15%
impairment of the left upper extremity. His
chronic pain syndrome is causing disability, but
not further impairment. He does have some
impairment of the left elbow caused by the ulnar
nerve surgery. This has resulted in some weakness
of his left hand.
All of his injuries are limited to his left or
right upper extremity and do not extend into his
trunk. All of his surgeries to the left upper
extremity sites are due to the upper extremity
impairment and not any impairment to his
shoulders, trunk, or neck.
(Ex. 2, pp. 49 & 50)
R. L. Linscheld, M.D., of the Mayo Clinic evaluated
claimant in 1992 and in 1993. After several examinations,
Dr. Linscheld opined that a third surgical procedure was the
best course of action for claimant's recovery. The surgeon
opined in his report of February 4, 1993:
Page 6
Mr. Kelso returned on January 25, 1993, for
consideration of an ulnar vein wrapping of his
previously transposed ulnar nerve, but during the
course of reviewing his pain pattern it became
obvious there were some elements that appeared to
be unrelated to his ulnar nerve. He volunteered
he had had to drive his car with his forearms
supinated, and proceeding with further questioning
it seemed most of his discomfort occurred with
pronosupination activities. His provocative
pronator signs appeared to be strongly positive
suggesting that his pain pattern might have been
due to a pronator syndrome.
After discussing this with you on the phone, we
did proceed to explore the antecubital space the
following day. His pronator teres had a proximal
take-off well onto the medial epicondyle flare.
The lacertus fibrosus appeared to be somewhat
hypertrophied and indented the pronator
musculature on passive pronation. He had a rather
large deep head of the pronator teres with a
tendon of origin from either side that appeared to
compress the nerve just proximal to the level of
the take-off of the anterior interosseous. We
released all these structures and allowed him to
return home the same day. He planned on having
his dressings changed at the plant the next
morning. When I talked to him on the phone the
following day he said the pain in his forearm and
the numb feeling in his hand was improved. I am
in hopes this indeed will provide him with relief
and avoid any further operations on his ulnar
nerve.
If this rehabilitation proceeds as anticipated,
I think he could return to work with his left arm
by March 2, 1993, anticipating a light work
approach until his arm feels more comfortable at
two to three weeks. If he appears to have a bit
earlier response, consideration of releasing the
right during his convalescence on the left might
be entertained.
Thanks again for the opportunity to see such an
interesting problem. I hope that we have
substantially improved his problem.
(Ex. 7, p. 105)
Claimant then sought an additional opinion from a
physician relative to his condition. Kevin F. Smith, M.D.,
of the Workmed Midwest Clinic examined and evaluated
claimant for purposes of rendering a report. The report was
given in anticipation of litigation. Dr. Smith authored a
report dated July 23, 1993. In his report the evaluating
physician opined:
LEFT UPPER EXTREMITY:
Page 7
Shoulder: On the left side showed no signs of
scarring, discoloration or abrasion. Upon
palpation of soft tissue the patient had no
tenderness. Bony landmarks were identified. No
palpable nodes on axilla. The patient had normal
smooth unguarded range of motion on abduction,
adduction, flexion, extension, internal and
external rotation. Neurologic examination: the
patient had good range of motion with resisted
good muscle tone. Also had negative drop arm
test.
Elbow: The patient had normal carrying angle
of 5 degrees with positive swelling and multiple
scar sites along the medial epicondyle and midline
both superior and inferior to the elbow joint.
Soft tissue palpation demonstrated exquisite pain
along the medial epicondyle and medial aspect of
the forearm on light touch. There was generalized
tenderness in and around the joint itself. Range
of motion revealed flexion to 130 degrees,
extension is 0 degrees, supination to 50 degrees,
pronation to 70 degrees. On neurologic testing
the patient had positive biceps reflex, positive
brachioradial reflex, positive triceps reflex.
Negative Finkelstein's test. Positive Tinel's
over the path of the ulnar nerve. Also, positive
palpable brachial pulse.
Wrist and hand: The patient had normal
unguarded smooth movement of the wrist and hand
with a normal attitude of the hand. Soft tissue
demonstrated no tenderness or no masses. Bony
landmarks were identified. The patient has
positive ulnar radial pulses. On range of motion
the patient had flexion to 55 degrees, extension
to 55 degrees, ulnar deviation 20 degrees, radial
deviation to 20 degrees. Mild positive Tinel's
over the Guyon canal. Negative Tinel's and
negative Phalen's over the carpal canal. Negative
Finkelstein's test and good muscle tone on
resistance.
On range of motion in the joints of the hand
the patient had normal range of motion at the MCP,
PIP and DIP joints.
RIGHT UPPER EXTREMITY:
Shoulder: Examination on the left side showed
no signs of scarring, discoloration, or abrasion.
On palpation of soft tissue the patient had no
tenderness.
Bony landmarks were identified. No palpable
nodes were noted in the axilla. The patient had
normal range of motion on abduction, adduction,
flexion, extension, internal rotation and external
rotation. Neurologic examination the patient had
Page 8
good range of motion with resistance and good
muscle tone. Also, negative drop arm test.
ELBOW: The patient had normal appearing 5
degrees with no swelling, scarring, discoloration
or abrasion over the site. Soft tissue palpation
demonstrates some tenderness over the medial
epicondyle. Range of motion revealed flexion to
140 degrees, extension to 0 degrees, supination 80
degrees, pronation to 80 degrees. Neurologic
testing demonstrated positive bicipital reflex,
positive brachioradial reflex, positive triceps
reflex. Negative tennis elbow and positive
Tinel's over the ulnar groove. The patient had
positive brachial pulse.
Wrist and hand: The patient had normal
unguarded smooth movement of the wrist and hand
with normal attitude of the hand. Soft tissue
palpation demonstrates no tenderness or masses.
Bony landmarks were identified. The patient had
positive ulnar and radial pulses. On range of
motion the patient had normal range of motion on
flexion, extension, ulnar deviation, and radial
deviation. Negative Tinel's and negative Phalen's
of the carpal canal. Negative Finkelstein's test.
Good muscle tone on wrist.
On range of motion of the hand, the patient had
normal range of motion at the MCP, PIP and DIP
joints. On grip strength on the right before
10/8, and left before 10/66 and after 10/66.
....
IMPRESSION:
1. Overuse Syndrome, bilateral upper extremity
with associated ulnar nerve neuropathies, work
related, chronic.
2. Left ulnar neuropathy with subsequent
surgery times three with residual ulnar nerve
neuritis with associated reports of numbness and
tingling, loss of strength and pain, work related,
chronic.
3. Right ulnar neuropathy, work related,
chronic.
4. Myofascial Pain Syndrome, associated with
the above work related conditions, involving
cervical area, shoulder girdles, and upper
extremities bilaterally, work related, chronic.
TREATMENT RECOMMENDATIONS:
1. The patient can return to work with his
previous permanent light duty restrictions set on
May 21, 1993, by the Maytag Medical Department,
Page 9
which are permanent restrictions of avoid
repetitive flexion and extension of the left
elbow. Maximum frequency of lifting 5 to 10
pounds. Occasional lift of 15 pounds.
2. Use of water therapy exercises three times
a week for the next three to four months to
stabilize reports of pain and to improve function.
3. Follow up with the Maytag Medical
Department for ongoing care.
....
Based on review of the medical records and
clinic evaluation today the patient has an Overuse
Syndrome involving the upper extremities with
associated bilateral ulnar neuropathy, left side
worse then right. He also has associated
Myofascial Pain Syndrome involving the upper
extremity, shoulder girdle, and the cervical area.
His conditions are associated with pain, numbness
and tingling in the upper extremities, left worse
then the right. It is also associated with
decreased grip strength and cramping into the
hands. His condition is work related and now
permanent and stationary.
Functional impairment rating based on the
following factors:
1. Loss of range of motion.
2. Loss of function due to pain.
3. Loss of function due to loss of strength.
The patient has a functional impairment rating
of 18% of the left upper extremity and 5% of the
right upper extremity. Using the combined values
table this equals a functional impairment rating
of 14% of the body as a whole.
(Ex. 11, pp. 154-155, 159-161)
Pursuant to claimant's request, Dr. Linscheid authored
another report dated August 9, 1993. In his report, the
physician opined:
On examination the scar over the anteromedial
aspect of the antecubital space appeared to be
well healed. There was one tender area in the
scar at the level of the second apex from the
wrist crease and produced a sharp pain but did not
seem to produce any significant parasthesias
either locally or into the fingers. This could be
a neuroma in the small branch of one of the
sensory nerves, but didn't seem to be connected
with the median nerve in general. The scar was
otherwise well healed. The muscle circumference
Page 10
of his forearms appeared to be about equal
bilaterally. Individual muscle testing appeared
to be satisfactory though there was some giving
way particularly on the little and ring finger
profundus. The area of greatest tenderness at the
present time was along the course of the ulnar
nerve from about 3 cm above the medial epicondyle
to where it disappeared into the flexor carpi
ulnaris. Stretching the little and ring fingers
into extension after a few minutes produced
discomfort in the forearm which made him want to
withdraw the arm. He found the position of
comfort greatest when he flexed the wrist and/or
fingers fully, suggesting that removing tension
from the muscles along the course of the ulnar
side of the forearm gave him some relief.
Provocative pronator signs were only mildly
irritable at this time. phalen's [sic] sign,
however, was positive and did produce numbness
into the median distribution. It also tended to
reproduce some of the aching discomfort he had in
his forearm. He rarely had discomfort into the
dorsal aspect of the forearm.
I would have to assume at this time that most
of his discomfort is associated with irritation of
the ulnar nerve, probably adhesions, that are
being stretched with the nerve during repetitive
elbow motion. Pressure over the ulnar nerve just
above the medial epicondyle did result in numbness
going into the little and ring fingers. The
intrinsic muscles themselves did not appear to be
wasted and only mildly weak. His grip strength
averaged 12 kg on the right and 4 kg on the left
on several trials and with rapid switching from
hand to hand. On testing the profundus as he
gripped there was usually one or two fingers in
which the produndus [sic] tendon did not appear to
be under as much tension as the other fingers. I
am not sure of the mechanism that grades this.
It is somewhat difficult to know why the degree
of subjective discomfort is so great or why it has
been so unresponsive to all the treatments to
date. Nevertheless, I would think he does still
have a significant ulnar neuropathy or neuritis
probably associated with epineural scarring and
that he has some on the other side as well. Both
of these would appear to be partially confirmed by
the electromyographic findings of December 1992.
He also may have a carpal tunnel on the left
although our electromyographic studies of December
1992 and clinical tests at that time did not
suggest this was a factor. If one were to further
pursue the problem, I would think a diagnostic
injection of local anesthetic and Cortisone into
the carpal canal would help to determine whether
or not there is significant carpal tunnel factor
associated on the left. One could also consider
returning to a revision of the anterior
Page 11
transposition of his ulnar nerve and again
considering the vein wrap and/or submuscular
transposition. The nerve, however, may be
sensitive enough that further treatment could be
of limited value. On the right side I think he
has a moderate ulnar neuritis associated with a
cubital tunnel problem, and if anything were to be
done about this, at the present time I would only
[sic] willing to do a posterior fasciotomy of the
Osborn type rather than a submuscular or anterior
transfer because of his poor response to similar
treatment on the left.
I think there is genuine weakness of the hands,
more so on the left than on the right, and ulnar
neuritis that does produce cramps and stretching
of the ulnar nerve does increase the discomfort in
the forearms. He probably has a modest carpal
tunnel on the left as well.
On the basis of the above, I would assign a
permanent partial impairment to the left arm as 30
percent and the right arm as 10 percent.
(Ex. 7, pp. 112-114)
Claimant eventually returned to work at the plant site.
At the time of the hearing, claimant was working full time,
as well as working overtime when requested.
CONCLUSIONS OF LAW
The burden of proof is on the party asserting the
affirmative of an issue in an administrative proceeding; "on
the party who would suffer loss if the issue were not
established." Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa
1973); Norland v. Ides, 412 N.W.2d 904 (Iowa 1987).
A treating physician's testimony is not entitled to
greater weight as a matter of law than that of a physician
who later examines claimant in anticipation of litigation.
Weight to be given testimony of a physician is a fact issue
to be decided by the industrial commissioner in light of the
record the parties develop. In this regard, both parties
may develop facts as to the physician's employment in
connection with litigation; the physician's examination at a
late date and not when the injuries were fresh; his
arrangement as to compensation; the nature and extent of the
physician's examination; the physician's education;
experience; training; practice; and all other factors which
bear upon the weight and value of the physician's testimony.
The parties may bring all this information to the attention
of the factfinder as either supporting or weakening the
physician's testimony and opinion. All factors go to the
value of the physician's testimony as a matter of fact not
as a matter of law. Rockwell Graphic Systems, Inc. v.
Prince, 366 N.W.2d 176, 192 (Iowa 1985).
The right of an employee to receive compensation for
injuries sustained is statutory. The statute conferring
Page 12
this right can also fix the amount of compensation payable
for different specific injuries. The employee is not
entitled to compensation except as the statute provides.
Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
Compensation for permanent partial disability begins at
termination of the healing period. Iowa Code section
85.34(2). Permanent partial disabilities are classified as
either scheduled or unscheduled. A specific scheduled
disability is evaluated by the functional method; the
industrial method is used to evaluate an unscheduled
disability. Simbro v. Delong's Sportswear, 332 N.W.2d 886
(Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116
(Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106
N.W.2d 95 (1960).
An injury to a scheduled member may, because of
aftereffects or compensatory change, result in permanent
impairment of the body as a whole. Such impairment may, in
turn, be the basis for a rating of industrial disability.
It is the anatomical situs of the permanent injury or
impairment which determines whether the schedules in Iowa
Code section 85.34(2)"a"-"t" are applied. Lauhoff Grain v.
McIntosh, 395 N.W.2d 834 (Iowa 1986); Blacksmith v.
All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v.
Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
When disability is found in the shoulder, a body as a
whole situation may exist. Alm v. Morris Barick Cattle Co.,
240 Iowa 1174, 38 N.W.2d 161 (1949). In Nazarenus v. Oscar
Mayer & Co., II Iowa Industrial Commissioner Report 281
(App. 1982), a torn rotator cuff was found to cause
disability to the body as a whole.
The mere fact that a rating pertains to a scheduled
member does not mean the disability is restricted to a
schedule. Pullen v. Brown & Lembrecht Earthmoving,
Incorporated, II Iowa Industrial Commissioner Reports 308
(Appeal Decision 1982).
Workers' compensation benefits for permanent partial
disability of two members caused by a single accident is a
scheduled benefit under Iowa Code section 85.34(2)(s) and
the degree of impairment caused by a partial loss must be
computed on the basis of functional, rather than industrial
disability. Simbro v. DeLong's Sportswear, 332 N.W.2d 886
(1983).
It is this deputy industrial commissioner's
determination that claimant has sustained a bilateral injury
to both upper extremities. Claimant has not proven by a
preponderance of the evidence that his injuries extend
beyond the upper extremities and into the body as a whole.
No medical experts provided supporting documentation that
claimant's permanent condition affected his body as a whole.
All of the medical evidence supports a conclusion that
claimant's permanent condition involved the upper
extremities. The medical providers opined the loss was the
result of one accident.
Page 13
Since claimant has a bilateral injury to both upper
extremities, his injury is to be calculated as provided in
section 85.34(2)(s).
The next issue to address is the nature and extent of
claimant's bilateral injury which involves his upper
extremities. Greater weight is given to the opinion of Dr.
Linscheid than is accorded to the opinions of the other
physicians. Dr. Linscheid is the physician who performed
the most recent surgery on claimant's left upper extremity.
The surgeon is associated with the Mayo Clinic which is a
recognized medical facility. The Mayo Clinic is world
renowned as a leader in medical care. Dr. Linscheid is a
trail blazer in terms of new technical procedures. He is
only one of a very few surgeons who is performing the
umbilical vein wrap of the ulnar nerve. He is also the
physician who discovered that claimant had a left pronator
teres syndrome. Additionally, Dr. Lischeid visited with
claimant on several occasions. The surgeon had adequate
opportunities to examine claimant. Dr. Linscheid also
reviewed claimant's x-rays and EMG's.
Therefore, in light of the above, as well as in light
of the personal observation of claimant and the other
witnesses, it is this deputy's determination that claimant
has a 30 percent functional impairment to the left upper
extremity and he has a 5 percent functional impairment to
the right upper extremity.
The injury is to be calculated as provided in section
85.34(2)(s). The method for calculating is as follows:
Using the Third Edition of the AMA Guides to the
Evaluation of Permanent impairment, 30 percent of the left
upper extremity is converted to 18 percent of the whole
person and 5 percent of the right upper extremity is
converted to 3 percent of the whole person. Then when
evaluating these two values on the combined values chart on
page 247 of the Third Edition, a combined value of 20
percent of the body as a whole is produced.
Iowa Code section 85.34(2)(s) governs the calculation
of benefits for an injury to both upper extremities caused
by a single accident. The method for calculating the
claimant's benefits is as follows: (20 percent x 500 weeks
= 100 weeks). Claimant is entitled to 100 weeks of
permanent partial disability benefits commencing on the
stipulated date of May 21, 1991 and at the stipulated rate
of $341.14 per week.
The next issue to address is the issue dealing with an
independent medical examination. Claimant is requesting
payment for the costs of an independent medical examination
pursuant to section 85.39 of the Iowa Code.
On July 22, 1993, claimant was examined by Kevin Smith,
M.D., for the purposes of obtaining an independent medical
examination. The evaluating physician examined claimant and
then the medical practitioner authored an 11 page report
Page 14
dated July 23, 1993 (Ex. 11).
Iowa Code section 85.39 provides in relevant part:
If an evaluation of permanent disability has
been made by a physician retained by the employer
and the employee believes this evaluation to be
too low, the employee shall, upon application to
the commissioner and upon delivery of a copy of
the application to the employer and its insurance
carrier, be reimbursed by the employer the
reasonable fee for a subsequent examination by a
physician of the employee's own choice, and
reasonably necessary transportation expenses
incurred for the examination. The physician
chosen by the employee has the right to confer
with and obtain from the employer-retained
physician sufficient history of the injury to make
a proper examination.
Section 85.39 permits an employee to be reimbursed
for a subsequent examination by a physician of the
employee's choice where an employer-retained physician has
previously evaluated "permanent disability" and the employee
believes that the initial evaluation is too low. The
section also permits reimbursement for reasonably necessary
transportation expenses incurred and for any wage loss
occasioned by the employee's attending the subsequent
examination.
Defendants are only responsible for reasonable fees
associated with claimant's independent medical examination.
Claimant has the burden of proof with respect to the issue
of the reasonableness of a fee. See Schintgen v. Economy
Fire and Casualty Co., File No. 855298 (Appeal Decision,
April 26, 1991).
It is not necessary for claimant to obtain prior
approval of defendants or that claimant file an application
with the industrial commissioner's office prior to seeing a
medical examiner. Vaughn v. Iowa Power, Inc., File No.
925283 (Arbitration Decision, August 5, 1992). Nor is it
necessary for claimant to apply for reimbursement for an
independent medical examination by a physician who is
retained by claimant prior to the examination or prior to
the hearing. Pirozek v. Swift Independent Packing and
Second Injury Fund of Iowa, File Nos. 753643, 753642, 724893
(Appeal Decision 1987).
In the case of Wright v. Bridgestone/Firestone, File
No. 1023144 (Appeal Decision April 29, 1993) it was held
that in an expedited procedure, a bill paid by claimant
creates an inference that the fee is reasonable. In the
Wright case, defendants failed to overcome claimant's prima
facie case of reasonableness and it was held that $600 for
an independent medical examination was reasonable. In
Wright, this deputy industrial commissioner wrote:
Claimant has met his burden of proof. Dr.
Rosenfeld's fee of $600.00 is reasonable.
Page 15
Claimant has paid the bill. The fee does not
appear outrageous or excessive. The sensibilities
of this deputy are not shocked. Even Dr. Neff,
who has a reputation as a "defense doctor", opines
that his fee, in a case like the present one, will
be in the $350 to $400 range. It is beyond this
deputy's imagination how $400 can be reasonable
but $600 cannot. This is a fine example of
hair-splitting. This deputy refuses to engage in
hair-splitting or to tinker with the fee.
In this division, there is no predetermined fee
schedule which covers various types of independent
medical examinations. This deputy declines to
draft such a fee schedule. The undersigned is
quite convinced that the fee of $600 is fair and
reasonable. However, it is noted that a far
different result may occur if the same type of
examination is conducted, and the physician
performing the independent medical exam charges
$6,000. Such is not the case here.
Claimant is entitled to an independent medical
examination pursuant to section 85.39. He is not required
to request permission prior to the time that the hearing
issues were established. Doctors who were retained by
defendant provided determinations that claimant had
sustained a permanent condition.
With respect to the present case, the fee of $500 is
not outrageous or shocking. The physician drafted a 10 page
report which was detailed. The fee of $500 is reasonable.
Defendant is liable to pay for the cost of the
independent medical examination in the sum of $500.
ORDER
THEREFORE, IT IS ORDERED:
Defendant shall pay unto claimant one hundred (100)
weeks of permanent partial disability benefits at the
stipulated rate of three hundred forty-one and 14/l00
dollars ($341.14) per week and commencing on May 21, 1991.
Defendant shall take credit for all permanent partial
disability benefits previously paid to claimant.
Accrued benefits are to be paid in a lump sum together
with statutory interest at the rate of ten percent per year.
Defendant shall pay five hundred dollars ($500) for the
cost of an independent medical examination with Kevin Smith,
M.D., and pursuant to section 85.39 of the Iowa Code.
Costs are taxed to defendant pursuant to rule 343 IAC
4.33.
Defendant shall file a claim activity report as
requested by this division and pursuant to rule 343 IAC 3.1.
Page 16
Signed and filed this ____ day of July, 1994.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Nick J. Avgerinos
Attorney at Law
Suite 1527
135 S LaSalle St
Chicago IL 60603
Mr. Steven M. Nadel
Attorney at Law
100 Court Ave STE 600
Des Moines IA 50309
1803; 1803.1; 2502; 2601; 2602
Filed July 19, 1994
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
STEVE KELSO, :
: File No. 944038
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
MAYTAG COMPANY, :
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
1803, 1803.1
Claimant sustained a simultaneous bilateral injury to
his upper extremities. The benefits owed were calculated on
a functional basis under section 85.34(2)(s). According to
the statute claimant was entitled to 100 weeks of permanent
partial disability benefits. The line of cases in Simbro
was followed.
2601; 2602; 2502
Defendant was required to reimburse claimant for the
cost of an independent medical examination pursuant to
section 85.39. The examination and report was in the sum of
$500.00.