Page 1
before the iowa industrial commissioner
____________________________________________________________
:
THERESA PESCIKA, :
:
Claimant, :
:
vs. :
: File No. 946005
SNAP-ON TOOLS CORPORATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
ROYAL INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition
of claimant, Theresa D. Pesicka, against her employer, Snap-
On Tools Corporation, and its insurance carrier, Royal
Insurance Company, defendants. The case was heard on
December 2, 1991, at the Hoover Building, in Des Moines,
Iowa. The record consists of the testimony of claimant.
The record also consists of the testimonies of: Julie
Pesicka, Loren Lee Pesicka, Lee Gunderson and Gary Erdman.
Additionally, the record consists of joint exhibits 1-4, and
claimant's exhibit A.
It is noted that some doctors' notes were impossible to
decipher. It is my impression that if the attorneys cannot
read the evidence, the deputies cannot either.
issues
The issues to be determined are:
1. Whether claimant sustained an injury which arose
out of and in the course of her employment;
2. Whether there is a causal relationship between the
alleged injury and any temporary or permanent disability;
3. Whether claimant is entitled to any healing period
or permanent partial disability benefits;
4. Whether claimant is entitled to any medical
benefits pursuant to section 85.27;
5. The appropriate rate to use, if applicable;
6. Whether claimant complied with section 85.26;
7. Whether claimant is entitled to penalty benefits
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pursuant to section 86.13(4); and,
8. Whether defendants are entitled to a credit
pursuant to section 85.38(2).
findings of fact
Claimant is 43 years old. She is married with three
children. She has a high school diploma but no training
beyond the high school level. Prior to her employment with
defendant, claimant worked at a McDonald's restaurant,
worked as a waitress, worked as an attendant in a gas
station, and worked at Winnebago Industries. She commenced
her employment with defendant on January 23, 1984. Her
first position required her to pull and push, and to use her
arms, shoulders and neck.
In 1985, claimant transferred to the position of press
brake operator. Then she worked in the meter box
department. Often, she worked with her hands and with her
arms above her head. Her corporate medical records
indicated problems as early as March of 1984.
Claimant testified she began experiencing problems with
her low back and the area between her shoulders. Claimant
described the pain between the shoulders as a burning pain.
She also described tingling in the hands, and low back pain,
with the left shoulder and neck worse than other areas.
At the time of the hearing, claimant testified that her
condition had worsened since January 23, 1984. She stated
on direct examination that her condition had deteriorated in
the prior year. Claimant admitted under cross-examination
that she was taking no prescription medications, and had not
done so since 1988.
As of November 22, 1991, claimant was laid off because
of slow sales. Currently, call-backs are by seniority
rights. There is no evidence that claimant was laid off
because of any work restrictions. It is acknowledged that
claimant's work activities involved repetitive motions but
that defendant employer rotated various tasks.
conclusions of law
Claimant alleges that she sustained an injury or
injuries and/or occupational diseases on July 18, 1990, but
that any injuries which occurred between January 23, 1984,
the date of hire, and November 22, 1991, the date of layoff,
are also included under an injury date of July 18, 1990.
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);
Page 3
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
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 wholeies. An occupational
disease is a disease which arises out of and in the course
of the employee's employment. The disease must have a
direct causal connection with the employment and must follow
as a natural incident from injurious exposure occasioned by
the nature of the employment. While the disease need not be
foreseeable or expected, after its contraction, it must
appear to have had its origin in a risk connected with the
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employment and to have resulted from that risk. A disease
which follows from a hazard to which an employee has or
would have been equally exposed outside of the occupation is
not a compensable occupational disease.
The claimant need meet only two basic requirements to
prove causation of an occupational disease. First, the
disease must be causally related to the exposure to the
harmful conditions in the field of employment. Second, the
harmful conditions must be more prevalent in the employment
than in everyday life or other occupations. Section 85A.8;
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
Where an employee is injuriously exposed to hazardous
conditions producing occupational disease while employed by
several successive employers, the employer where the
employee was last injuriously exposed is liable for the
total disability. Doerfer Div. of CCA v. Nicol, 359 N.W.2d
428 (Iowa 1984).
To be compensable, an aggravation of an occupational
disease must be more than a temporary aggravation curable by
removal from the exposure. McNeil v. Grove Feed Mill, II
Iowa Industrial Commissioner Report 261 (App. 1981).
Firstly, claimant alleges that she has sustained an
occupational disease or diseases. While it is difficult to
determine what diseases she is alleging, this deputy
believes claimant is including the aforesaid body parts, of
low back, mid back, left shoulder, left and right upper
extremities, neck, and hands.
Section 85A.8 of the Iowa Code defines occupational
disease. The section states that:
Occupational diseases shall be only those diseases
which arise out of and in the course of the
employee's employment. Such diseases shall have a
direct causal connection with the employment and
must have followed as a natural incident thereto
from injurious exposure occasioned by the nature
of the employment. Such disease must be
incidental to the character of the business,
occupation or process in which the employee was
employed and not independent of the employment.
Such disease need not have been foreseen or
expected but after its contraction it must appear
to have had its origin in a risk connected with
the employment and to have resulted from that
source as an incident and rational consequence. A
disease which follows from a hazard to which an
employee has or would have been equally exposed
outside of said occupation is not compensable as
an occupational disease.
To prove the causation element described in section
85A.8, claimant must show by a preponderance of the evidence
(1) the disease is causally related to the exposure to the
harmful conditions of the field of employment, and (2) the
harmful conditions must be more prevalent in the employment
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concerned than in everyday life or in other occupations.
Siefkas v. Furnas Electric Co., File No. 944404
(Arbitration Decision, November 12, 1991), appeal filed
November 21, 1991 (citing McSpadden v. Big Ben Coal Co., 288
N.W.2d 181 (Iowa 1980)); Frit Indus. v. Langenwalter, 443
N.W.2d 88 (Iowa App. 1989).
According to the deputy commissioner writing Siefkas,
File No. 944404, slip op. at 5:
Although McSpadden might be read as eliminating
the arose out of and in the course of
requirements, the statute clearly retains those
elements. Perhaps the intent of the opinion in
McSpadden is to emphasize the peculiar aspects of
occupational disease. Lawyer & Higgs, Iowa
Workers' Compensation -- Law and Practice, Chapter
18, sections 1-3.
It is conceivable that repetitive motion
disorders may constitute either an injury or an
occupational disease depending upon the particular
facts in the case. Accordingly, determinations as
to what constitutes an occupational disease must
be made on a case-by-case basis.
In Peters v. Lamoni Auto Assemblies, Inc., File
No. 809203 (Appeal Decision, March 31, 1989),
aff'd district court October 6, 1989, then
Industrial David E. Linquist held that claimant
did not sustain her burden of proof that her left
carpal tunnel syndrome was an occupational
disease. Commissioner Linquist also determined
that, since claimant was entitled to benefits
under chapter 85, she was not entitled to benefits
pursuant to section 85A.14.
In the recently decided case of Noble v. Lamoni
Products, 857575, 851309 (Appeal filed May 7, 1992), the
Iowa Industrial Commissioner determined that carpal tunnel
syndrome is not an
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occupational disease under section 85A. The industrial
commissioner in Noble wrote that:
The record shows that claimant's carpal tunnel
syndrome was caused not by an invasion of her body
by an outside agent, but by external traumatic
forces. Although the external forces were spread
out over time and were made up of a series of
micro-traumas, nevertheless they were traumas and
as such constitute injuries, not a disease. The
legislative intent in enacting chapter 85A is
hereby determined to have been to compensate those
work-related conditions that result from exposure
to various agents that would invade the body and
act adversely on it, and which could not be
compensated as a traumatic injury under chapter
85. Claimant's carpal tunnel syndrome is hereby
determined to be a traumatic cumulative injury
under chapter 85 and not an occupational disease
under chapter 85A.
Claimant argues that compensating her carpal
tunnel syndrome under chapter 85 is unfair, in
that her compensation under that chapter will be
limited to the scheduled benefits under Iowa Code
subsections 85.34(2)(a-t). Claimant urges that
compensation as an occupational disease would be
based on an industrial basis, rather than the
functional basis utilized in subsections 85.34(2)
(a-t), and produce a more fair result. Claimant
assumes that compensation under chapter 85A would
always be on an industrial disability basis, and
nothing in this decision addresses that question.
Further, the allegation that chapter 85 operates
unfairly is not a valid basis for treating
claimant's condition under chapter 85A.
It is noted that some conditions, such as
pregnancy, renal failure, menopause, diabetes
mellitus, acromegaly, edema, tuberculosis, and
other conditions may produce carpal tunnel
syndrome as a symptom. This decision does not
address carpal tunnel syndrome resulting from a
disease. This holding is limited to the factual
situation where a worker's carpal tunnel syndrome
is caused by traumatic repetitive work activity.
WHEREFORE, the decision of the deputy is affirmed.
In the instant case, claimant at one time or another,
has been diagnosed with bilateral carpal tunnel syndrome,
possibly thoracic outlet syndrome, acute myofascial pain
syndrome, overuse injury of the left shoulder deltoid
muscle, degenerative disc disease, acute cervical strain,
overuse syndrome with respect to the left parascapular
musculature and cervical region, soft tissue injury to the
neck and left shoulder, low back injury, lateral
epicondylitis of the elbow, arthritis of the lumbar spine,
and stenosis at L4-5.
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Next, claimant alleges that if she cannot recover under
section 85A, then she is able to recover under chapter 85 as
an injury.
Claimant alleges she has sustained injuries which arose
out of and in the course of her employment on July 18, 1990.
According to her original notice and petition, she claims
that:
This is the date of the most recent cumulative
trauma to the body region affected or disabled.
However, the period of injury commenced when
claimant started working at Snap-On, was
manifested first in the late 1978, was manifested
again on March 19, 1984, and has been manifested
periodically, but continuously ever since. By the
time of hearing herein, this injury period will
have been extended further to the 1st day worked
before hearing.
Under the pleading generally, claimant asserts
one continuous injury to a body part which is a
body region over the above period of time.
However, she recognizes and assumes that the
Commissioner may find separate injuries, either
traumatic, cumulative, or both, to one region or
to lesser-included body parts occurring at
included dates or periods. Accordingly, she has
not filed separate petitions for every neck,
shoulders and back. These cumulative injuries are causally
related to her employment. There is no dispute that
claimant has engaged in repetitive type activities at work.
These activities have impacted upon claimant's condition in
a negative fashion. She has established the requisite
causal connection between her occupation and her condition.
The next issue deals with the nature and extent of
claimant's condition. She alleges she is permanently
disabled and that her permanent disability is an industrial
disability.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
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other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
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.
Suffice it to say, claimant has sought treatment and
evaluation from a myriad of health practitioners for her
aforementioned injuries. Defendants have complied with
nearly every request for care which she has made. Since
January of 1989, claimant has been seen by: Brian W.
Nelson, M.D., an orthopedist; Q. J. Durward, M.D.; Kenneth
B. Washburn, M.D., a neurologist; S.D. Richards, D.O.,
family physician; Kossuth County Hospital, physical therapy;
R.E. Jongewaard, M.D.; Michael W. Crane, M.D.; J. Michael
Donohue, M.D., Iowa Lakes Orthopaedics, P.C.; Janelle Kampf,
P.T.; Robert McCoy, M.D., Surgical Associates; Harry Wm.
Hargett, D.C., Spine Injury Center; Verland G. Rients, D.C.;
Thomas F. DeBartolo, M.D., Occupational Medicine; and, M.
Davenport, P.T., M.A., Occupational Sports Medicine Clinic.
The diagnoses have usually centered around a
"myofascial pain syndrome." (Jt. Exs, p. 211)
Dr. Donohue has diagnosed claimant as having:
Assessment: 1) Recurrence of overuse symptoms
with respect to left parascapular musculature and
cervical region.
2) Status post low back
injury--subjective complaints outweight [sic]
objective findings.
Later, Dr. Donohue revised his diagnosis to:
Neurological evaluation of both upper
extremities is intact.
Assessment: 1) Status post low back
injury--tolerating transition back to work with
mild residual symptoms.
2) Status post neck and left shoulder soft
tissue injury with residual symptoms--slight
decrease in range of motion.
(Jt. Exs., p. 268)
Dr. Donohoe, as of March 21, 1990, rated claimant as
having a 2 percent impairment to the left upper extremity.
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Claimant was released to return to work without
restrictions. Later, on April 17, 1990, Dr. Donohoe
modified his impairment rating to 1 percent of the body as a
whole. One month later, Dr. Donohoe rated claimant's low
back condition. He opined that claimant had reached maximum
medical improvement on May 16, 1990, and that based upon
objective findings, claimant had a 0 percent impairment to
the low back.
On November 12, 1991, Dr. Donohoe again reviewed his
evaluation.
Plan: I related to the patient that the
purpose of the examination today was to
specifically answer several questions with respect
to my opinions. I related to her that in general,
my opinions are unchanged. Specifically, with
respect to the first question of Mr. Thune's
letter of October 31, 1991, it continues to be my
opinion that Ms. Pesicka may continue to work at
Snap-On Tools without significant risk of
objective deterioration in her situation if she
can tolerate her discomfort.
I remain of the opinion that the patient is not
a surgical candidate with respect to her lower
back problems and that she does not have any
impairment associated with this problem.
The patient's previous 2% impairment of the
left upper extremity was based in limitation in
external rotation on the left noted on 3-21-90.
This rating is obtained from the Guide to
Evaluation of Permanent Impairment, Third Edition,
Revised. As noted today, the patient's range of
motion with respect to external rotation as well
as all other motions in the left shoulder are
symmetrical and, therefore, at this point, I would
change my opinion in that the patient does not
appear to have any functional impairment based on
objective findings with respect to her left
shoulder. It should also be noted that the
patient has no crepitation with passive range of
motion of either shoulder.
Finally, with respect to functional impairment
with respect to the numbness in her hands,
although the patient does have some slowing on EMG
as well as nerve conduction studies, she has what
appears to be identical findings on both hands and
symptoms only on the left side. Based on the lack
of objective findings, I would agree with Dr.
McCoy's previous statement in that there does not
appear to be objective impairment associated with
this condition at this point.
(Jt. Exs., pp. 342-342)
Robert E. McCoy, M.D., on August 3, 1990, evaluated
claimant's right hand and right upper extremity. He opined
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that based upon objective findings, claimant had no
functional impairment. (Jt. Exs. pp 281-283)
H. Wm. Hargett, D.C., provided no impairment rating.
Thomas F. DeBartolo requested a functional capacity
evaluation. The evaluation was performed in October of
1991. It was forwarded to Dr. DeBartolo. On November 4,
1991, he opined that:
It is my impression that the neck discomfort
that the patient experiences is secondary to the
weakness of the left upper extremity and the
discomfort is secondary. With the weak anterior
muscle grouping she is exerting more or attempting
to compensate with muscles such as her trapezium
that as that fatigue then causes her to have a
sense of discomfort and I do not feel that that
would lead to a permanent impairment if the
patient would seek more appropriate vocational
activities.
Therefore, in summary, it is my impression that
the patient's impairment of her right upper
extremity is 10% due to the carpal tunnel and the
patient's impairment to the left upper extremity
is 33%, 25% for the thoracic outlet, and 10% for
the carpal tunnel using the combined values chart.
(Jt. Exs., pp. 337-338)
Dr. Donohue later reviewed Dr. DeBartolo's evaluation.
Dr. Donohue did not accept claimant's purported thoracic
outlet syndrome to be work related. Rather, Dr. Donohue
opined the purported syndrome was congenital in nature.
The undersigned deputy finds this to be a troublesome
case. There are few objective findings which point to any
permanent functional impairments, despite years of
treatment. Nevertheless, claimant has experienced chronic
pain in many parts of her body. This deputy is quite
certain that the pain is genuine. Claimant is entirely
credible. She is motivated and had returned to work on
numerous occasions. The treating physicians, Dr. Donohue
and Dr. McCoy, are accorded great weight. They can find no
permanent functional impairments despite years of treatment.
The case lacks objective findings of any permanency.
Claimant had returned to work in January of 1991. She was
released to work without any restrictions. She worked until
her layoff. The layoff was unrelated to her work injuries.
Based upon the foregoing, it is the determination of
the undersigned that claimant has no permanent partial
disability. However, because of the nature of her chronic
pain, it appears advisable for claimant to participate in
some type of pain management clinic.
Claimant has sustained a temporary total disability,
and a temporary partial disability.
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Claimant has proven she has a temporary total
disability. Section 85.33(1) governs the payment of
temporary total disability benefits. The section provides:
Except as provided in subsection 2 of this
section, the employer shall pay to an employee for
injury producing temporary total disability weekly
compensation benefits, as provided in section
85.32, until the employee has returned to work or
is medically capable of returning to employment
substantially similar to the employment in which
the employee was engaged at the time of injury,
whichever occurs first.
With respect to temporary benefits, the parties
stipulate that included in the records are:
(a) All drafts which claimant negotiated to her
benefits:
(b) Are all the drafts for weekly compensation,
including temporary total disability, healing period and
permanent partial disability, and for temporary partial
benefits which defendants tendered to claimant;
(c) Actually were received by or on behalf of claimant
on the date handwritten on any draft on which the words
"received" and/or "Theresa S. Pesicka" also were
handwritten;
(d) Were mailed near the dates handwritten and/or
printed with the handwritten and/or printed word "mailed" on
drafts with such handwriting and/or printing;
(e) Were, when written on claimant's account, checks
received and negotiated by defendants in response to their
requests for compensation benefit overpayment refunds.
This issue is governed by the case of Simonson v. Snap-
on Tools, 798628, 842007, 851960. There the industrial
commissioner determined that:
For purposes of determining the date upon which
payments were made, it is held that payments shall
be deemed "made" on the date deposited into the
United States mail addressed to claimant, or, if
not so mailed, on the date made available to
claimant (not merely made available to Snap-On
Tools in the case of checks issued by Royal
Insurance Company).
With respect to the issue of interest pursuant to
section 85.30, the undersigned directs the parties to
Simonson v. Snap-On Tools, supra. The industrial
commissioner wrote:
However, it does appear that interest has not
been paid on delayed benefits and on benefits paid
at less than the rate found herein. Claimant
correctly points out that payments should be
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applied first to accrued interest up to the date
of payment, and then to principal amounts due.
Huner v. Doolittle, 3 Greene 76-77 (Iowa 1851).
The parties shall be left to calculate interest
due pursuant to Iowa Code section 85.30. If
further intervention by this agency is needed to
resolve any dispute as to such calculations, the
parties are warned in advance of the possibility
that a certified public accountant might be
retained as an expert and the cost thereof
assessed to one or several parties as may seem
just.
Additionally, with respect to interest, the Iowa
Industrial Commissioner held in Meyers, supra:
The decision of the deputy filed September 30,
1991 is affirmed and is adopted as the final
agency action in this case with the following
additional analysis:
Section 85.30 expressed legislative
intent that interest on unpaid
compensation be computed from the date
each payment comes due, starting with
the eleventh day after the
injury....Interest is therefore payable
on such installment from that due date,
and similarly with the following weekly
payments.
Interest is computed according to the longstanding
rule that partial payments are applied first to
accrued interest and the remainder to reduce the
permanent partial disability benefits award.
McNeal v. Iowa Department of Transportation,
Order Nunc Pro Tunc, May 31, 1990. Also see
Clausen v. Carmar Farms, Ltd., Vol. 1, No. 3 State
of Iowa Industrial Commissioner Decisions 540
(1985).
The parties are directed to calculate interest
on any weekly benefits not paid when due based on
Iowa Code section 85.30 and the above cited
authority. If a dispute exists between the
parties on how the interest should be calculated,
the parties can then bring the question before
this agency for resolution.
Such is the same situation here. The parties are
directed to calculate interest on any weekly benefits not
paid when due.
order
THEREFORE, it is ordered:
Claimant may be entitled to certain interest pursuant
to section 85.30. The parties are directed to calculate
interest on any weekly benefits not paid when due based upon
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section 85.30 and the above cited authority, and that if a
dispute exists between the parties on how the interest
should be calculated, the parties can then bring the
question before this agency for resolution, with costs of a
CPA assessed to the parties.
Costs are taxed to the parties for their own respective
costs.
Defendants are to file a first report of injury within
ten (10) days of the file date of this decision.
Defendants shall file a claim activity report as
requested by this division and pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of May, 1992.
________________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Mark S Soldat
Attorney at Law
714 E State St
Algona IA 50511
Mr Paul C Thune
Attorney at Law
218 6th Ave Ste 300
P O Box 9130
Des Moines IA 50306
1803
Filed May 13, 1992
Michelle A. McGovern
before the iowa industrial commissioner
____________________________________________________________
:
THERESA PESCIKA, :
:
Claimant, :
:
vs. :
: File No. 946005
SNAP-ON TOOLS CORPORATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
ROYAL INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1803
Claimant was not entitled to permanent partial disability
benefits. Nevertheless, claimant had experienced chronic
pain in many parts of her body. The deputy was quite
certain that the pain was genuine. Claimant was entirely
credible. She was motivated and she had returned to work on
numerous occasions. The treating physicians, Dr. Donohue
and Dr. McCoy, were accorded great weight. They could find
no permanent functional impairments. The case lacked
objective findings of any permanency. Claimant had returned
to work in January of 1991. She was released to work
without any restrictions. She worked until her layoff. The
layoff was unrelated to her work injuries.
Therefore, it was the determination of the undersigned that
claimant had no permanent partial disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
THERESA PESCIKA,
Claimant,
vs.
File No. 946005
SNAP-ON TOOLS CORPORATION,
R E M A N D
Employer,
D E C I S I O N
and
ROYAL INSURANCE COMPANY,
Insurance Carrier,
Defendants.
____________________________________________________________
This matter was originally dismissed by the industrial
commissioner for failure to timely file an appeal. On
judicial review of the dismissal the district court reversed
the industrial commissioner, deemed the intra-agency appeal
timely filed, and remanded for consideration of the
intra-agency appeal on the merits. This decision is issued
based on the remand by the district court.
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. Only those facts and
conclusions of law necessary to resolve the issues raised on
appeal will be discussed.
ISSUES
The issues that were raised at the time of hearing (see the
hearing assignment order filed June 12, 1991) and that have
been preserved in claimant's appeal are: what was the date
of injury to claimant's upper extremities, neck, and
shoulder; whether claimant is entitled to any weekly
disability benefits as a result of an injury to her upper
extremities, neck, and shoulder; whether claimant is
entitled to interest on weekly benefits, if any are awarded;
whether claimant is entitled to penalty pursuant to Iowa
Code section 86.13; the rate of compensation; whether
testimony from a lay witness should be excluded; and how
costs are to be taxed.
FINDINGS OF FACT
Theresa Pesicka (hereinafter claimant) was 43 years old at
the time of the hearing. She commenced working for
defendant employer on January 23, 1984. The job she did
Page 2
first as a spot welder required her to pull and push and to
use her arms, shoulders and neck. In 1985 she transferred
to a job as a press brake operator where the average amount
she lifted was 25 pounds. This job involved the use of her
arms and her hands above her head. She also worked in punch
press where she did not have to lift or bend. She also
worked in metal box assembling and packing which required
use of her hands above her head. She testified she had pain
between her shoulders and in her low back when working as a
press brake operator. She was working in the press brake
department when she was laid off on November 22, 1991. She
was able to rotate jobs on a daily basis for those jobs she
held more recently before the hearing date.
Claimant saw a variety of doctors for complaints of elbow
and shoulder pain beginning in 1984. On March 13, 1985 R.E.
McCoy, M.D., performed right lateral epicondylar and right
carpal tunnel releases. (Joint Exhibit 1, page 50) She
missed work following the surgery and periodically through
1987. Some of the time she missed work was for medical
treatment and some of the time she was taken off work by a
medical practitioner. (See e.g. Jt. Ex. 1, pp 79-80) She
also was treated and missed work for a left foot injury
beginning in May 1987.
On August 17, 1987 claimant complained to R.E. Jongewaard,
M.D., of pain in the neck. (Jt. Ex. 1, p. 87) Claimant was
referred to Scott B. Neff, D.O., an orthopaedic surgeon, who
saw claimant on August 31, 1987. Dr. Neff found no
neurologic involvement nor permanent impairment. He
described her condition as chronic cervico-thoracic
myofascial tension state. (Jt. Ex. 1, p. 91) Claimant was
taken off work by Dr. Neff beginning August 31, 1987. (Jt.
Ex. 1, p. 92 and Jt. Ex. IV, p. 45) Claimant was seen by
David J. Boarini, M.D., a neurosurgeon on October 8, 1987.
Dr. Boarini found normal strength and range of motion and
myofascial neck pain. (Jt. Ex. 1, p. 104) Claimant saw
Matt Widus, M.D., on February 11, 1988 who noted the neck
was supple with full range of motion, although extreme
flexion and extension sent sharp pain down her back. (Jt.
Ex. 1, p. 112) Claimant was seen by Brian W. Nelson, M.D.,
on February 22, 1988 whose assessment was chronic myofacial
strain of the paraspinus, trapezius and romboid musculature
and mild left thoracic outlet syndrome. (Jt. Ex. 1, p. 116)
Claimant was treated conservatively by Dr. Nelson. Dr.
Nelson referred claimant to Q.J. Durward, M.D., a
neurologist. Dr. Durward performed a cervical myelogram on
May 17, 1988 which was basically normal. (Jt. Ex. 1, p.
138) Thereafter Dr. Nelson continued conservative treatment
of claimant. Claimant was treated by John D. Calisesi,
D.C., from June through September 1988. He agreed that she
had a chronic myofascial syndrome with subluxation complex
of C1/2 and T4/5 vertebrae. (Jt. Ex. 1, p. 153)
On November 1, 1988 claimant complained of low back pain.
(Jt. Ex. 1, p. 166) She again complained of low back pain
on December 7, 1988 and was referred to Dr. Jongewaard. Dr.
Page 3
Jongewaard described her condition as left para lumbar
muscle strain with radiation of pain to left lower
extremity. (Jt. Ex. 1, p. 168) In January, February and
March 1989 claimant continued to complain about shoulder
pain and occasionally complained of low back pain. (Jt. Ex.
II, pp. 172-181) Claimant was treated by Harry W. Hargett,
D.C., from March 30 through May 22, 1990. Dr. Hargett's
assessment included cervical and lumbar strain with
cervical-brachial syndrome healing with myofascial
fibrositis and segmental dysfunction. (Jt. Ex. II, p. 321)
Claimant was seen by Kenneth B. Washburn, M.D., on March 31,
1989. Dr. Washburn noted a number of problems and
specifically noted myofascial pain syndrome of the upper
trapezius/posterior shoulder area. Because the EMG and
myelogram were normal, Dr. Washburn did not see a problem of
cervical radiculopathy. Claimant continued to have regular
and periodic complaints of left shoulder pain. She began
making regular complaints of low back pain beginning August
1, 1989. (Jt. Ex. II, pp. 208-226) No evidence of disc
herniation was noted. (Jt. Ex. II, pp. 212 and 221) On
November 8, 1989 Michael W. Crane, M.D., was not sure of the
etiology of his impression of an acute cervical strain (Jt.
Ex. II, p. 231)
Claimant was seen by J. Michael Donohue, M.D., on December
4, 1989. Dr. Donohue assessed recurrence of overuse
symptoms with respect to left pavascapular musculature and
cervical region and status post low back injury--subjective
complaints outweigh objective findings. (Jt. Ex. II, p.
239) Dr. Donohue, like Dr. Nelson before him, recommended a
monitored vocational rehabilitation program. (Jt. Ex. II,
p. 243). Claimant again underwent a rehabilitation. On
March 21, 1990 Dr. Donohue agreed with Dr. Nelson that
claimant could be released without restrictions but
indicated claimant had sustained a two percent impairment of
the left upper extremity. (Jt. Ex. II, p. 268) He also
thought claimant could be released without restrictions for
the lower back and he did not anticipate any significant
impairment with respect to the lower back. (Jt. Ex. II, p.
269)
On August 3, 1990 Dr. McCoy saw no rateable impairment of
function of the problems which caused a need for surgery at
the right elbow and carpal tunnel (Jt. Ex. II, p. 283)
Page 4
Claimant was evaluated at the St. Joseph Mercy Occupational
Upper Extremity Clinic by Thomas F. DeBartolo, M.D., for a
two day functional capacity evaluation on October 2, 1991.
It was Dr. DeBartolo's opinion that claimant's subjective
complaints of left shoulder and left arm complaints were
related primarily to what would have to be best described as
thoracic outlet syndrome with sagging shoulders, poor
posture, documented weakness and the diminished pulse on the
left side as the arm is abducted. He formed his opinion of
thoracic outlet even though nerve conduction studies and
EMGs did not show evidence of a decreased velocity distal to
the mid arm. He also found claimant had a 10 percent
impairment to the left upper extremity due to bilateral
carpal tunnel and 25 percent for the thoracic outlet. (Jt.
Ex. II, pp. 327-338)
Claimant was seen by Dr. Donohue on November 12, 1991 for a
formal evaluation. His assessment was:
1) Status post left shoulder strain--overuse type
syndrome--symptoms unchanged despite aggressive conservative
care in the past--no specific signs of radiculopathy.
2) Chronic cervical strain--associated with left shoulder
strain--unchanged despite conservative care.
3) Left upper extremity dysfunction--EMG evidence of
bilateral carpal tunnel syndrome but negative clinical
findings to confirm significant peripheral nerve entrapment.
4) History of chronic low back discomfort--no significant
objective findings on examination today suggesting more of a
chronic myofascial strain syndrome.
(Jt. Ex. II, p. 341) Because claimant's range of motion
with respect to external rotation as well as all other
motions in the left shoulder were symmetrical, Dr. Donohue
changed his prior opinion of a two percent impairment to no
functional impairment of the left shoulder. Based on a lack
of objective findings he agreed with Dr. McCoy that there
was no objective impairment associated with numbness in the
hands. Based on objective tests Dr. Donohue conducted, he
disagreed with Dr. DeBartolo's that claimant's symptoms
could be attributed to thoracic outlet syndrome. (Jt. Ex.
II, p. 344)
Dr. Rooney took claimant off work from November 10-15, 1987
for low back pain. (Jt. Ex. I, pp. 105-108) On April 18,
1988 Dr. Nelson took claimant off work and was to reevaluate
claimant after she was seen by a neurosurgeon. (Jt. Ex. I,
p. 132) Claimant was seen by Dr. Durward on May 17, 1988.
On May 27, 1988 Dr. Nelson returned claimant to work
effective May 31, 1988. On August 15, 1988 Dr. Nelson took
claimant off work with a return on Wednesday (August 17,
1988). (Jt. Ex. I, p. 156) On December 8, 1988 Dr.
Jongewaard took claimant off work because of low back pain
and returned claimant to work effective December 15, 1988.
(Jt. Ex. 1, pp. 166 and 177) On November 9, 1989 Dr. Crane
took claimant off work for two weeks for acute cervical
strain. He was unsure of the etiology. (Jt. Ex. II, pp.
Page 5
231-232) On December 4, 1989 Dr. Donohue took claimant off
work "until further notice." (Jt. Ex. II, p. 240) Dr.
Donohue eventually extended the time off work until a return
to work on February 22, 1990. (Jt. Ex. II, p. 265)
Claimant regularly missed work for medical treatment. The
time off work for medical treatment ranged from two hours to
one day. See claimant's appeal brief pages 7 and 8 and
joint exhibits I and IV.
There were periods of time between May 31, 1988 and March
10, 1990 when claimant's working hours were restricted to
less than 40 hours a week by her medical care providers.
Those time periods are:
May 31 - August 14, 1988 11.143 weeks
August 19 - October 16, 1988 8.429 weeks
April 24 - May 7, 1989 2 weeks
February 26 - March 10, 1990 2 weeks
23.572 weeks total
See claimant's appeal brief page 9 and joint exhibits I and
IV.
There were periods of time when claimant was allegedly taken
off work by her treating medical providers. The times after
August 31, 1987 are:
August 31 - October 11, 1987
November 10-15, 1987
February 11 - May 30, 1988
August 15 - August 18, 1988
December 8 - December 14, 1988
April 6 - 23, 1989
August 1 - 25, 1989
November 9, 1989 - February 25, 1990
See claimant's appeal brief pages 10-11 and joint exhibits I
and IV.
Page 6
Defendant employer's insurance carrier has paid claimant
temporary partial disability benefits for the following
periods after August 31, 1987, according to claimant's
appeal brief at pages 25-26.
June 2 - Oct. 19, 1988 (Jt. Ex. III, pp. 30-52) 20
weeks
April 24 - May 7, 1989 (Jt. Ex. III, pp. 55-57) 2
weeks
Oct. 21 - Oct. 22, 1989 (Jt. Ex. III, p. 59) .286
weeks
Feb. 26 - Mar. 10, 1990 (Jt. Ex. III, pp. 74-75) 2
weeks
total paid 24.286
weeks
Defendant employer's insurance carrier has paid temporary
total disability benefits for the following periods
according to claimant's appeal brief at pages 25-26 (noted
as H.P.):
Weekly
rate paid
Aug. 31 - Sept. 21, 1987 $276.88 (Jt. Ex. III, pp.
14-15)
Feb. 11 - May 25, 1988 $276.88 (Jt. Ex. III, pp.
18-28)
Apr. 6 - 23, 1989 $286.10 ($572.20 î 2)
(Jt. Ex. III, p. 53)
Aug. 1 - 24, 1989 $253.06 ($867.75 î 3.429)
(Jt. Ex. III, p. 58)
Nov. 10, 1989 -
Feb. 2[5], 1990 $286.10 (Jt. Ex. III, pp.
60-74)
Claimant's attendance at work was sporadic in 1984, 1985,
1986 and the first three quarters of 1987. Relatively
speaking, claimant worked fairly regularly from May 1986
through August 1987. Beginning August 31, 1987 through
September 1988 claimant rarely, if ever, worked. Beginning
in October 1988 and continuing through December 1990
claimant's work attendance was again sporadic and included
extended periods of continued absences. (Jt. Ex. IV, pp.
42-48)
Claimant alleges the appropriate rate for an injury date of
August 31, 1987 is $269.46 based upon a gross weekly
earnings of $408.22. (See claimant's appeal brief, page 14)
It is not readily apparent how claimant arrived at these
figures. The time periods included in Jt. Ex. IV, p. 3
ended on June 27, 1987 and in Jt. Ex. IV, p. 38 ended on
July 4, 1987. Effective June 29, 1987 claimant's rate of
pay was $6.84 per hour. (Jt. Ex. IV, p. 23) (A 40-hour work
week at $6.84 per hour would result in gross earnings of
$273.60.) The pay check stubs in Jt. Ex. IV, pp. 70-125
only cover the periods January 2, 1988 forward.
Page 7
Claimant's sister, Julie Pesicka, also worked at defendant
employer and testified at the hearing. Julie's testimony on
the percentage of bodily use lost by claimant was excluded
following an objection by defendants' counsel. (Tr., p. 38)
CONCLUSIONS OF LAW
It is noted that claimant's original notice and petition
filed in this matter alleges a disability to claimant's
upper extremities, neck, and shoulder. The petition also
alleges a wide possibility of injury dates.
Due process, in agency adjudications, requires that a party
be informed of the issue involved in order to prevent
surprise at hearing and allow the party reasonable
opportunity to prepare relative to the issue. The test is
one of fundamental fairness, not whether the notice meets
technical rules of common law pleading. Opposing parties
must be sufficiently appraised of the possibility that an
issue will arise that they can adequately prepare regarding
that issue in order to justify its inclusion at hearing
where another party has not formally plead it. Oscar Mayer
Foods Corp. v. Tasler, 483 N.W.2d 824 (Iowa 1992).
We have observed that with respect to agency
adjudications, due process requires that a party "be
informed somehow of the issue involved in order to prevent
surprise at the hearing and allow an opportunity to
prepare.... The test is fundamental fairness, not whether
the notice meets technical rules of common law pleading."
(Citation omitted) See also Coghlan v. Quinn Wire & Iron
Works, 164 N.W.2d 848, 850 (Iowa 1969) ("An application for
arbitration is not a formal pleading and is not to be judged
by the technical rules of pleading.")
Tasler, 483 N.W.2d 824 at 828.
Therefore, this decision and discussion will be limited to
claimant's entitlement to benefits resulting from an alleged
disability to her upper extremities, neck, and shoulder. No
decision to entitlement to benefits, if any, for alleged
injuries to claimant's foot or lower back will be a part of
this case. Limiting the issues of entitlement to benefits
as is being done is particularly appropriate given the facts
that claimant has alleged an injury date from 1984 when
claimant was first employed and that there is insufficient
medical evidence in the record to form any conclusion
whether there is a causal relationship between claimant's
low back problems and her work.
It should also be noted that this decision should not be
used as precedent which would indicate this agency's
willingness to painstakingly sort through volumes of
evidence because the parties are unwilling or unable to
adequately prepare and present a case for resolution.
The first issue to be resolved is the date of injury to
claimant's upper extremities, neck, and shoulder. The Iowa
Supreme Court has recognized that this agency has a
"substantial amount of latitude in making a determination
regarding the date of manifestation since this is an
Page 8
inherently fact-based determination." Tasler, 483 N.W.2d
824 at 829.
A personal injury contemplated by the workers'
compensation law means an injury, the impairment of health
or a disease resulting from an injury which comes about, not
through the natural building up and tearing down of the
human body, but because of trauma. The injury must be
something which acts extraneously to the natural processes
of nature and thereby impairs the health, interrupts or
otherwise destroys or damages a part or all of the body.
Although many injuries have a traumatic onset, there is no
requirement for a special incident or an unusual occurrence.
Injuries which result from cumulative trauma are
compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d
368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa
1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219,
38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries,
Inc., 218 Iowa 724, 254 N.W. 35 (1934). An occupational
disease covered by chapter 85A is specifically excluded from
the definition of personal injury. Iowa Code section
85.61(5); Iowa Code section 85A.8.
When the disability develops gradually over a period of
time, the "cumulative injury rule" applies. For time
limitation purposes, the compensable injury is held to occur
when because of pain or physical disability, the claimant
can no longer work. McKeever Custom Cabinets v. Smith, 379
N.W.2d 368 (Iowa 1985).
In this case the injury date to claimant's upper
extremities, neck, and shoulder is August 31, 1987. It was
at this point in time that claimant was unable to work and
regularly and continuously missed work because of shoulder
complaints.
The next issue to be resolved is whether claimant is
entitled to any weekly benefits. The party who would suffer
loss if an issue were not established has the burden of
proving that issue by a preponderance of the evidence. Iowa
R. App. P. 14(f).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
Claimant has seen many medical care providers over an
extended period of time. Only one of those, Dr. DeBartolo,
thought that claimant might have a permanent functional
disability. His opinion was inconsistent with the opinions
of Dr. McCoy and Dr. Donohue. Dr. DeBartolo's opinion will
be given little weight. His opinion as a one-time
evaluating physician was inconsistent with other medical
evidence and the opinions of two treating physicians, Drs.
Page 9
McCoy and Donohue. Also, Dr. DeBartolo assigned a
functional impairment rating despite the fact that it was
based upon subjective complaints which were not supported by
objective findings such as nerve conduction studies and
EMGs. It is also worth noting that there was a consistent
pattern of claimant's improvement through multiple physical
therapy episodes. It is further worth noting that the
record contains numerous references to diagnoses relating to
muscle strain or muscle related symptoms. Claimant has not
proved that her work has caused a permanent disability to
her neck, shoulder, or left arm.
The next issue to be resolved is the extent to which
claimant is entitled to temporary benefits for the time she
was off work.
At the time claimant missed work following her August
31, 1987 injury there was no statutory authority for
granting weekly benefits for time missed from work to attend
doctor's appointments. See e.g., Ellingson v. Fleetguard,
Inc., (Appeal Decision June 30, 1994, file nos.
805094/1015070) The legislature in enacting 1994 Iowa Acts,
Senate File 2245, section 2 which provides for payment of
wages for time lost when receiving medical treatment in
certain situations has clearly indicated that prior to the
enactment of Senate File 2245 there was no statutory
authority for payment of benefits for the time claimant
missed work for medical treatment. Claimant is not entitled
to benefits for time lost to receive medical treatment.
Claimant is entitled to temporary partial disability
benefits pursuant to Iowa Code section 85.33(2) when she did
not return to full duty but she was able to perform work
consistent with her disabilities. Claimant in her appeal
brief alleges certain periods of time following her injury
of August 31, 1987 would entitle her to temporary partial
disability benefits. As discussed in the findings of fact
above, claimant has been paid temporary partial disability
benefits in excess of the temporary partial disability
benefits. (Claimant alleged entitlement to 23.572 weeks and
has been paid 24.286 weeks for temporary partial
disability.)
Claimant also seeks temporary total disability
benefits. Claimant is entitled to temporary total
disability benefits because of her left shoulder and left
arm disability following her August 31, 1987 injury for the
time she was unable to work because of this injury.
Claimant is not entitled to temporary disability
benefits under the decision of this case for the following:
November 10-15, 1987 and December 8-14, 1988 because
claimant missed work for reasons other than her left
shoulder problems; August 17-18, 1988 because Dr. Nelson
returned claimant to work on August 17, 1988; November 9-23,
1989 because Dr. Crane was unsure of the etiology of
claimant's acute cervical strain; and February 22-25, 1990
because on February 21, 1990 Dr. Donohue released claimant
to return to work.
Page 10
Claimant is entitled to additional unpaid temporary
total disability benefits under the decision of this case
for the following: September 22, 1987 through October 11,
1987 because claimant was not returned to work until October
12, 1987 by Dr. Boarini (Jt. Ex. I, p. 100) and May 26-30,
1988 because Dr. Nelson did not return claimant to work
until May 31, 1988. Claimant's entitlement to additional
temporary total disability benefits.
Due Previously paid Additional
Aug. 31, 1987 - Aug. 31, 1987 - Sept. 22,
1987 -
Oct. 11, 1987 Sept. 21, 1987 Oct. 11,
1987
Feb. 11, 1988 - Feb. 11, 1988 - May 26, 1988
-
May 30, 1988 May 25, 1988 May 30,
1988
As stated above claimant was paid excess temporary total
disability benefits for the following: August 17-18, 1988;
November 9-23, 1989; and February 22-25, 1990. In addition,
as will be noted below the rate of compensation for
claimant's August 31, 1987 injury is $269.46. During the
time periods claimant was paid excess benefits, she was paid
more than the appropriate rate. Claimant was also
voluntarily paid temporary total disability benefits at a
rate exceeding the alleged rate of $269.46. While claimant
is owed an additional 25 days of benefits she has been paid
excess benefits of 19 days. She has been paid benefits at a
rate that exceeds the appropriate for the periods August 31
through September 21, 1987 ($276.87); February 11 through
May 25, 1988 ($276.88); April 6-23, 1989 ($286.10); and
November 10, 1989 through February 25, 1990 ($286.10). In
addition claimant was paid benefits November 10-15, 1987 and
December 8-14, 1988 which are not payable under this case
and may or may not represent further overpayment. Claimant
has not proved that her entitlement to additional benefits
under this decision is not offset by the amount she has been
overpaid, therefore, claimant has not proved entitlement to
additional temporary total disability benefits.
Because claimant is not entitled to any weekly benefits in
excess to what has already been paid, two of the issues
claimant has raised are moot. Those issues are: whether
claimant is entitled to interest and the rate of
compensation. It is noted that interest is to be calculated
on any weekly benefits not paid when due based on Iowa Code
section 85.30 and Farmer's Elevator Co. v. Manning, 286
N.W.2d 174 (Iowa 1979). Parties should first determine
whether there is a dispute about the interest amount owed,
and then if an agreement cannot be reached, the aggrieved
party can seek relief from the industrial commissioner.
It is also noted that claimant advocates that the
Page 11
appropriate rate is $269.46 for an injury date of August 31,
1987 (see p. 14 of claimant's appeal brief) but does not
provide evidence to support this rate. The rate of
compensation is determined pursuant to Iowa Code section
85.36. Parties should first determine whether there is a
dispute about the rate to be paid and if agreement cannot be
reach, the aggrieved party can seek relief from the
industrial commissioner.
Claimant seeks to recover a penalty under the fourth
unnumbered paragraph of Iowa Code section 86.13. Section
86.13 permits an award of up to 50 percent of the amount of
benefits delayed or denied if a delay in commencement or
termination of benefits occurs without reasonable or
probable cause or excuse. The standard for evaluating the
reasonableness of defendants' delay in commencement or
termination is whether the claim is fairly debatable. Where
a claim is shown to be fairly debatable, defendants do not
act unreasonably in denying payment. Covia v. Robinson, 507
N.W.2d 411 (Iowa 1993).
In this case claimant is entitled to no permanent disability
benefits, no benefits for time lost for medical treatment,
no additional temporary benefits and has been paid temporary
benefits over a long period of time. Delays, if any, in
payments of benefits have been minimal. There is clearly no
statutory authority for assessment of penalty on interest.
Claimant has not proved entitlement to penalty.
The next issue raised by claimant is whether testimony from
claimant's sister as a lay witness regarding claimant's
percentage of bodily use lost was properly excluded. As
discussed above claimant has not proved she has a permanent
disability as a result of her August 31, 1987 work injury.
Therefore, the issue is moot. Even if the issue were not
moot, the testimony would not be admitted. The witness is
not qualified to give a medical opinion. Also, the
industrial commissioner ultimately decides the extent of
disability and a witness may not invade the province of the
industrial commissioner. Furthermore, rule 343 IAC 2.4 does
not provide for lay testimony by relatives.
The last issue to be resolved is how costs are to be taxed
in this matter. Iowa Code section 86.40 provides: "All
costs incurred in the hearing before the commissioner shall
be taxed in the discretion of the commissioner." Rule 343
IAC 4.33 provides in relevant part: "Costs are to be
assessed at the discretion of the deputy commissioner or
industrial commissioner hearing the case unless otherwise
required by the rules of civil procedure governing
discovery." Claimant has alleged injuries covering a period
of approximately six years, was unsuccessful in getting
additional benefits in the arbitration decision and has been
unsuccessful on none of the issues on appeal. The parties
submitted a plethora of evidence that required this agency
to painstakingly, if not needlessly, review the evidence on
issues that could have been stipulated. It is appropriate
that each party pay the costs of the hearing and for the
Page 12
claimant to pay the costs of the appeal.
WHEREFORE, the decision of the deputy is affirmed.
ORDER
THEREFORE, it is ordered:
That claimant shall take nothing from these proceedings.
That claimant shall pay the costs of the appeal including
the transcription of the hearing. All other costs shall be
paid by the party incurring the cost.
That defendants are to file a first report of injury within
ten (10) days of the date of this decision.
Signed and filed this ____ day of July, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Mark S. Soldat
Attorney at Law
714 East State St.
Algona, Iowa 50511
Mr. Paul C. Thune
Attorney at Law
P.O. Box 9130
Des Moines, Iowa 50306
1803; 5-2907
Filed July 26, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
THERESA PESCIKA,
Claimant,
vs.
File No. 946005
SNAP-ON TOOLS CORPORATION,
R E M A N D
Employer,
D E C I S I O N
and
ROYAL INSURANCE COMPANY,
Insurance Carrier,
Defendants.
____________________________________________________________
1803
Claimant was not entitled to permanent partial disability
benefits. Nevertheless, claimant had experienced chronic
pain and muscle soreness in many parts of her body. She was
motivated and she had returned to work on numerous
occasions. The treating physicians, Dr. Donohue and Dr.
McCoy, were accorded great weight. They could find no
permanent functional impairments. The case lacked objective
findings of any permanency. Claimant had returned to work
in January of 1991. She was released to work without any
restrictions. She worked until her layoff. The layoff was
unrelated to her work injuries. Injury date was determined
to be when claimant was required to miss work and
consistently missed work after that date.
5-2907
Costs are assessed at the discretion of the industrial
commissioner. Claimant was unsuccessful on any issue on
appeal and was responsible for all costs of the appeal.
Parties did not reach any meaningful stipulations as it
related to factual disputes on when and if benefits were
paid and the rate of compensation. Instead the parties
submitted extensive evidence the agency was required to
review. All other costs were assessed the party which
incurred the cost.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
RANDY D. CARLE, :
:
Claimant, :
: File Nos. 946008
vs. : 946009
:
SHELLER-GLOBE CORPORATION : A R B I T R A T I O N
n/k/a UNITED TECHNOLOGIES :
CORPORATION, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
These are proceedings in arbitration upon the petition
of claimant, Randy D. Carle, against his employer,
Sheller-Globe Corporation n/k/a United Technologies,
self-insured employer, defendant. The cases were heard on
November 7, 1991, in Burlington, Iowa at the Des Moines
County Courthouse. The record consists of the testimony of
claimant. The record also consists of the testimonies of
the supervisor in the Rotocast Department, Martin Moretimer;
claimant's spouse, Doris Carle; and the union president for
URW Local 444, Jerry A. Kearns. Additionally, the record
consists of claimant's exhibits 1-5, 7-49, 51-100 and
defendant's exhibits A-1, A-2, B, C, D and E. Many of the
exhibits offered were impossible to read (ie. exhibit 76).
issues
The issues to be determined are: 1) whether claimant
sustained an injury on August 5, 1988, which arose out of
and in the course of his employment; 2) whether there is a
causal connection between the alleged work injury of August
5, 1988 and any temporary and/or permanent disability; 3)
whether there is a causal connection between the work injury
of October 12, 1989 and any permanent disability; 4) whether
claimant is entitled to any temporary or permanent
disability benefits because of the August 5, 1988 alleged
injury; 5) whether claimant is entitled to any temporary or
permanent disability benefits because of the October 12,
1989 injury; and, 6) whether claimant is entitled to any med
ical benefits pursuant to the alleged injury of August 5,
1988 or the injury of October 12, 1989.
findings of fact
The deputy, having heard the testimony and considered
all the evidence, finds:
Claimant was hired by defendant on August 6, 1984. He
Page 2
was assigned the task of a relief person in Department 77,
known as the main rotocraft area. The work required manual
labor, including lifting 34 pound dash pads.
Claimant described his health as good until he
developed a non-malignant tumor in his abdominal-sternum
area. The tumor was unrelated to his work. The tumor was
surgically removed on September 23, 1985. Claimant was
released to return to work on November 1, 1985. Claimant
continued working until January 7, 1986, when he was removed
from work because of problems subsequent to his surgery.
According to the exhibits, claimant was returned to work
without restrictions on May 24, 1988. At that time claimant
was assigned the task of a trimmer. His duties included
taking covers from a rack, placing them on a table and
trimming off excess material. Claimant lifted from 5 to 20
pounds and he was able to perform his job.
As of August 1, 1988, claimant was assigned the status
of a packer. He was placed in Department 78. His duties
required manual labor since he was given the jobs of making
boxes and placing finished products into the boxes.
On August 5, 1988, claimant testified he was working in
his assigned area. Around 10:30 a.m., claimant stated he
was lifting 8 to 10 boxes. He was using one arm to pick up
the boxes and the other arm to pull the boxes. He felt a
pop in his sternum - abdominal area. Claimant testified he
reported the incident to the foreman, Steve Bolling, but
that claimant was able to complete his assigned tasks.
Claimant testified he did not report the incident to first
aid.
Next, claimant stated he returned to work on the
following Monday, and he worked until noon but he passed out
in the warehouse. He saw the company physician, Robert
Kemp, M.D., the next day. Eventually, claimant returned to
light duty in the first aid room. He handled papers,
cleaned, trimmed and painted. Claimant testified his
symptoms did not abate. He worked through February 20,
1989, when claimant requested and received a leave of
absence. Claimant remained on that leave of absence until
September of 1989, when he again returned to work.
When claimant returned to work he was placed on the
inject machine and he was acting as a relief person. On
October 12, 1989, claimant was struck in the back with a
pallet which was loaded on a moving fork lift truck.
Claimant was removed from work for several days. X-rays
revealed no abnormality. Claimant returned to work on the
ram line and worked with some problems.
On June 25, 1990, claimant was driving to work in his
personal vehicle when he struck a woman on a bicycle. The
bicycle rider was struck by the truck mirror. The mirror
shattered and cut claimant on the arm. Claimant did not
seek medical attention for the accident. Claimant never
returned to work after his motor vehicle accident.
Apparently, claimant was "shook up" after the accident.
Page 3
Repeatedly, claimant described his typical day as
watching TV, smoking cigarettes and drinking 10 cups of
coffee. Claimant is currently capable of driving a Bronco
with manual transmission despite the fact claimant uses a
cane to assist him in walking. Claimant engages in little
physical exercise.
Since the August 8, 1988 injury date, claimant has made
numerous visits to numerous medical practitioners. Exhibit
99 is an especially helpful exhibit. It details, in
chronological order, the various medical appointments which
claimant has had. The exhibit lists the following visits:
1988 12 visits
1989 57 visits
1990 69 visits
up to 4/1/1991 11 visits including a two week
stay in a VA hospital
The varied practitioners include, among others, the
company physician, Robert Kemp, M.D.; a general surgeon; an
orthopedic surgeon; a neurologist; a specialist in
rehabilitation medicine; physical and occupational
therapists; and, several chiropractors. The medical record
is voluminous.
conclusions of law
The first issue to address is with respect to file
number 946008. Claimant alleges that he has sustained a
work related injury to his sternum, neck and thoracic back
area when he was lifting boxes on the morning of August 5,
1988.
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. of App. P. 14(f).
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. 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, 417 (Iowa 1986);
McClure v. Union, et al., Counties, 188 N.W.2d 283, 287
(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, 354 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296,
297 (Iowa 1974).
Page 4
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
Defendant denies an injury occurred on August 5, 1988,
which arose out of and in the course of claimant's
employment. Furthermore, defendant states that the injury,
if it did occur, was not causally related to claimant's
alleged condition.
There is no question claimant had a tumor removed from
his sternum/abdominal area in 1985. The tumor was totally
unrelated to any work injury. Claimant was eventually
released to return to work by the company physician, several
years after the tumor was removed. Claimant worked nearly
two and one-half months without incident. Then on August 5,
1988, claimant heard or felt a popping in the area of his
sternum. At the time he was lifting boxes at work.
Subsequent to the incident, claimant sought medical
attention for the pain he was experiencing. Keith Riggins,
M.D., an orthopedic surgeon, diagnosed claimant's condition
as a fractured sternum (Exhibit 11). Later, Dr. Riggins
modified the diagnosis to a strained rib cage. Dr. Riggins
explained:
Recommendation: It has now been two and one-half
years since the patient underwent his previous
surgical treatment. It is my opinion that the
mass and excision thereof weakened attachment of
the abdominal muscles to the chest wall and that
the patient will remain symptomatic if he engages
in activities which require heavy lifting. It is
recommended that weight lifted be limited to
twenty (20) pounds maximum with frequent lifting
and or carrying of objects up to ten (10) pounds.
Work duty sheet is completed and returned to the
patient. No return visits are required.
(Ex. 11)
Claimant was placed on light duty by the orthopedic
surgeon. He continued to have symptoms. Eventually
claimant was referred to John H. Lemmer, M.D., a thoracic
surgeon at the University of Iowa Hospitals and Clinics. In
his report of March 6, 1989, Dr. Lemmer opined:
Mr. Carle is anxious for me to make a
determination as to whether or not his problem is
work-related. However, I am unable to make that
determination. Clearly this patient did
previously undergo resection of a benign abdominal
Page 5
wall tumor at a region somewhat inferior to where
his current pain is. He provides the history of
having the sudden onset of pain while lifting a
heavy object at work in August 1988. As I told
the patient, however, I have not previously seen a
sternal fracture due to lifting but rather these
are usually associated with blunt trauma. It is
therefore not possible for me to determine the
work-related nature of his abnormality. Mr. Carle
is going to think about my suggestion regarding
excision of the distal third of his sternum and
contact my office.
(Ex. 20, page 25)
Claimant was next examined by Ansar H. Ansari, M.D.,
the surgeon who previously removed claimant's tumor. Dr.
Ansari was unable to causally relate claimant's condition to
an alleged injury on August 5, 1988. Likewise, Walid M.
Hafez, M.D., could find no "specific diagnosis that could
explain the patient's `pain'." (Ex. 28). He explained
claimant's condition as "chronic pain."
It appears to the undersigned deputy that while
claimant has experienced chronic pain in the area of his
sternum and rib cage, claimant has been unable to establish
that his condition has a causal relationship to a
work-related incident allegedly occurring on August 5, 1988.
Claimant's sternal pain leaves even the best experts with no
explanation as to the cause. No physician has stated that
the sternal pain is the direct result of any work injury.
Claimant has not met his burden of proof. Claimant takes
nothing under file number 946008.
The next issues deal with file number 946009.
Defendant has stipulated that claimant has sustained a work
related injury which occurred on October 12, 1989.
Defendant also admits claimant has sustained a temporary
disability as a result of the October 12, 1989 injury which
involves an injury to the low back. Defendant denies
claimant has sustained any permanent disability.
Claimant's injury of October 12, 1989, was less than
one month after he returned to work from another medical
leave of absence. He sought medical attention at the Keokuk
Area Hospital. The attending physician advised claimant to
remain off work until he had been released by the corporate
physician.
Claimant saw Dr. Kemp on October 17, 1989. The company
physician advised claimant to return to work on October 18,
1989, but to remain on light duty. Dr. Kemp noted moderate
muscle spasms and a limited range of motion. Claimant
returned to work on October 19, 1989.
Claimant also sought medical attention from his own
chiropractor, Dan A. Mefford, D.C. The chiropractor
released claimant to return to work on October 18, 1989.
Claimant followed the instructions of the company physician.
Claimant returned to work on October 19, 1989. Dr. Kemp
Page 6
opined that claimant's condition was causally related to the
work injury of October 12, 1989 (Ex. 91, p. 149).
Dr. Mefford had already been treating claimant for
strain on the musculoskeletal system allegedly relating back
to the August 5, 1988 date. It is virtually impossible to
determine when claimant first voiced complaints of neck and
back pain to any medical practitioner. Suffice it to say,
there have been back complaints which preexisted claimant's
work injury on October 12, 1989.
While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, its mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76
N.W.2d 756 (1956). If the claimant had a preexisting
condition or disability that is materially aggravated,
accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962);
Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112
N.W.2d 299 (1961).
Claimant's condition on October 12, 1989, was
aggravated by the trauma he sustained to his low back.
Claimant described his pain as different than the pain he
had experienced previously to his October 12, 1989 injury.
This time the pain was lower back pain. Before he had
experienced thoracic pain and neck pain. Claimant testified
his pain worsened but he could not miss more than two days
of work every month or else he would be disciplined.
Consequently, claimant worked from October 19, 1989 to June
25, 1990. He was not off work because of his low back
condition.
On June 25, 1990, the aforementioned Bronco-bicycle
accident took place. According to claimant's deposition he
was shook up so much he did not return to work. In fact,
since that date, claimant has not worked anywhere. The
record does not establish that claimant was off work as of
June 25, 1990, because of his back condition. It is unclear
why claimant chooses to spend his days watching TV, smoking
cigarettes and drinking 10 cups of coffee per day.
Nevertheless, claimant's refusal to return to work is his
voluntary decision. No physician has mandated that he quit
his position. Rather, two medical practitioners have
returned claimant to work.
Claimant has met his burden of proof that he is
entitled to some temporary disability/healing period
benefits. He is entitled to weekly benefits for: October
12, 1989 through October 18, 1989 and from February 27, 1991
through April 26, 1991, when claimant was participating in
the program at the VA Hospital in Columbia, Missouri. He is
to be paid at the stipulated rate of $281.44 per week.
Claimant has also proven that he has a permanent
partial disability as a result of the October 12, 1989
injury which renders him industrially disabled.
Page 7
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson v. Goodyear Service Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Peterson v.
Truck Haven Cafe, Inc., (Appeal Decision, February 28,
1985); Christensen v. Hagen, Inc., (Appeal Decision, March
26, 1985).
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 8
Only one chiropractor has rated claimant as having a
functional impairment. Terry W. Shaw, D.C., has opined that
claimant has a 28 percent functional impairment rating. No
physician has rated claimant as having a functional
impairment. However, several physicians have placed
claimant on permanent restrictions. Felix M. Martin, M.D.,
has restricted claimant from lifting more than 50 pounds.
The physician has advised claimant to change jobs (Ex. 68,
p. 96). Dr. Martin has also recommended a brace. Dr. Kemp
has recommended light duty for claimant.
Dr. Shaw has placed permanent restrictions on claimant.
The chiropractor has restricted claimant from lifting more
than 40 pounds infrequently and from repetitively lifting 20
pounds. Claimant is also restricted from prolonged sitting.
Randall D. Smith, M.D., has related claimant's
condition to his work. The physician in rehabilitation
services at the VA has restricted claimant from involved
lifting, bending and stooping (Ex. 98, p. 164). The
medical personnel have prescribed a cane for claimant.
It is the decision of the undersigned that claimant is
functionally impaired to a minimal degree. Likewise,
claimant has sustained an industrial disability.
Claimant's earning capacity has been reduced since he
can no longer engage in heavy lifting or in prolonged
bending and stooping. Therefore, he is precluded from doing
heavy manual labor. Claimant is not to engage in long
periods of sitting. Office jobs are out of the question.
It is claimant's decision to leave the employ of
defendant. The defendant has not terminated claimant nor
has defendant refused to accommodate claimant. No physician
has stated that claimant is incapable of working. The
situation is quite the contrary. Claimant has been told to
return to some type of gainful employment. This deputy
agrees wholeheartedly! Claimant is a very young man. He is
only 30 years old. He has many years ahead of him. He is
capable of working.
Claimant is anything but motivated to return to work.
He has done very little to rehabilitate himself. He refuses
home therapy and walking for reconditioning. He has not
even attempted to look for work. He is content to sit at
home and watch television. Claimant shows no desire to
work. His past employment history corroborates this
deputy's determination that claimant is totally unmotivated
to become a productive worker in this society. This is too
bad as claimant is a very likeable person. He has much to
offer. He needs to consider some form of counseling.
Claimant has a GED. He shows no desire to engage in
additional training, however. Again, claimant's lack of
motivation is an inhibiting factor.
After reviewing all of the relevant evidence, it is
this deputy's decision that claimant is entitled to a 10
percent permanent partial disability at the stipulated rate
Page 9
of $281.44 per week. The benefits are to commence from
April 27, 1991, the date on which claimant was released from
the VA Hospital.
The next issue to address is whether claimant is
entitled to medical benefits under section 85.27.
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Section 85.27.; Holbert v.
Townsend Engineering Co., Thirty-second Biennial Report of
the Industrial Commissioner 78 (Review decision 1975).
Claimant has the burden of proving that the fees charged for
such services are reasonable. Anderson v. High Rise Constr.
Specialists, Inc., file number 850096 (Appeal Decision
1990).
Claimant is not entitled to reimbursement for medical
bills unless claimant shows they were paid from claimant's
funds. See Caylor v. Employers Mut. Casualty Co., 337
N.W.2d 890 (Iowa App. 1983).
Claimant has testified that he owes $20,000.00 in
medical expenditures. However, the undersigned has been
presented with no documentation to substantiate the
$20,000.00 figure. Therefore, claimant is entitled to
medical expenses as long as the expenditures are causally
related to the October 12, 1989 injury and as long as they
are reasonable and necessary as well.
order
THEREFORE, IT IS ORDERED:
With reference to file number 946008, claimant takes
nothing from these proceedings.
With respect to file number 946009, defendant is to pay
unto claimant fifty (50) weeks of permanent partial
disability benefits at the stipulated rate of two hundred
eight-one and 44/l00 dollars ($281.44) per week commencing
on April 27, 1991.
With respect to file number 946009, defendant is to pay
unto claimant nine point four-two-nine (9.429) weeks of
healing period benefits at the stipulated rate of two
hundred eighty-one and 44/l00 dollars ($281.44) per week for
the period from October 12, 1989 through October 18, 1989
and from February 27, 1991 through April 26, 1991.
With respect to file number 946009, defendant is to pay
reasonable and necessary medical costs which are causally
related to the October 12, 1989 injury date.
Page 10
Defendant shall take credit for benefits previously
paid claimant.
Accrued benefits are to be paid in a lump sum together
with statutory interest at the rate of ten percent (10%) per
year pursuant to section 85.30, Iowa Code, as amended.
Costs are taxed to defendant pursuant to rule 343 IAC
4.33.
Defendant shall file claim activity reports as
requested by this division pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of December, 1991.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Max Schott
Mr. Robert W. Pratt
Attorneys at Law
6959 University Ave
Des Moines IA 50311-1540
Mr. Harry W. Dahl
Attorney at Law
974 73rd St
Suite 16
Des Moines IA 50312
5-1803
Filed December 20, 1991
MICHELLE A. McGOVERN
before the iowa industrial commissioner
____________________________________________________________
:
RANDY D. CARLE, :
:
Claimant, :
: File Nos. 946008
vs. : 946009
:
SHELLER-GLOBE CORPORATION : A R B I T R A T I O N
n/k/a UNITED TECHNOLOGIES :
CORPORATION, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
5-1803
Claimant has met his burden of proof that he has sustained a
10 percent permanent partial disability to the body as a
whole because of a work related injury on October 12, 1989.
5-1803
Filed December 20, 1991
MICHELLE A. McGOVERN
before the iowa industrial commissioner
____________________________________________________________
:
RANDY D. CARLE, :
:
Claimant, :
: File Nos. 946008
vs. : 946009
:
SHELLER-GLOBE CORPORATION : A R B I T R A T I O N
n/k/a UNITED TECHNOLOGIES :
CORPORATION, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
5-1803
Claimant has met his burden of proof that he has sustained a
10 percent permanent partial disability to the body as a
whole because of a work related injury on October 12, 1989.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
RANDY D. CARLE, :
:
Claimant, :
: File Nos. 946008
vs. : 946009
:
SHELLER-GLOBE CORPORATION : N U N C
n/k/a UNITED TECHNOLOGIES :
CORPORATION, : P R O
:
Employer, : T U N C
Self-Insured, :
Defendant. : O R D E R
___________________________________________________________
Due to the unclear handwriting on the prehearing report, this
deputy mistakenly read the stipulated rate as $281.44. The
correct stipulated rate is $281.94.
THEREFORE, IT IS ORDERED:
The corrected stipulated weekly rate is two hundred eighty-one
and 94/l00 dollars ($281.94). All other portions of the decision
remain in effect.
Signed and filed this ____ day of December, 1991.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Max Schott
Mr. Robert W. Pratt
Attorneys at Law
6959 University Ave
Des Moines IA 50311-1540
Mr. Harry W. Dahl
Attorney at Law
974 73rd St
Suite 16
Des Moines IA 50312
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
RHONDA KNOPP, :
:
Claimant, :
:
vs. : File Nos. 911271/930441
: 946018/946019
WILLIAM C. BROWN COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
KEMPER INSURANCE and :
CONTINENTAL INSURANCE CO., :
c/o CLAS, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
Claimant, Rhonda Knopp, asserts that she suffered
work-related back injuries on July 30, 1988 (946018),
December 13, 1988 (911271), June 30, 1989 (946019) and
September 13, 1989 (930441). She was employed by William C.
Brown Company ("Brown"), a publishing concern, on each date.
Defendant employer was insured by Continental Insurance
Company with respect to the first three injury dates, Kemper
Insurance Company with respect to the fourth. Ms. Knopp now
seeks benefits under the Iowa Workers' Compensation Act from
that employer and those carriers.
This cause came on for hearing in Waterloo, Iowa on
June 18, 1992. Claimant testified personally. Joint
exhibits 1-11, 19-30, 1A and 2A, claimant's exhibits A-1, A,
B, C, D, E, H, and I and defendants' exhibit's X were
received into evidence. Claimant's exhibits F and G were
taken under advisement as to defendants' objection; the
objection is now overruled and those exhibits are received.
The depositions of claimant and Drs. Richard Neiman and
David Field are in evidence.
ISSUES
In file numbers 946018, 911271 and 946019, claimant, W.
C. Brown Company and Continental Insurance Company have
stipulated that claimant sustained injuries on each date
arising out of and in the course of employment, that all
temporary total or healing period benefits prior to
September 13, 1989 have been paid, that any permanent
disability is an industrial disability, to the background
facts necessary to calculate rate, and that medical benefits
are no longer in dispute with respect to services rendered
Page 2
prior to September 13, 1989.
Issues presented to resolution in those files include:
1. Whether each work injury caused temporary
disability subsequent to September 13, 1989 or permanent
disability;
2. The extent of temporary disability subsequent to
September 13, 1989 and the extent of permanent disability;
3. Whether claimant is entitled to penalty benefits
under Iowa Code section 86.13.
In file number 930441, claimant, William C. Brown
Company and Kemper Insurance have stipulated to the
existence of an employment relationship at the time of the
alleged injury, that any permanent disability is industrial
disability, to the rate of compensation and that certain
wages were voluntarily paid by claimant during a time of
temporary disability.
The parties stipulated to gross weekly wages of
$374.00, a marital status of married and entitlement to four
exemptions. They further stipulated to a rate of $279.71
based on these facts. The latter stipulation is actually a
legal conclusion based upon the factual stipulations as to
weekly earnings, marital status and exemptions. The Guide
to Iowa Workers' Compensation Claim Handling published by
this agency and in effect on the date of injury reflects
that an individual so situated is entitled to a compensation
rate of $246.76 per week. Accordingly, the stipulation as
to rate is rejected. Based on the parties' factual
stipulations, claimant's compensation rate is $246.76.
Issues presented for resolution in case number 930441
include:
1. Whether claimant sustained an injury arising out of
and in the course of her employment on September 13, 1989;
2. Whether the injury caused temporary or permanent
disability;
3. The extent of disability;
4. Entitlement to medical benefits under Iowa Code
section 85.27;
5. The extent of credit to which defendants are
entitled;
6. Whether claimant is entitled to penalty benefits
under Iowa Code section 86.13.
FINDINGS OF FACT
The undersigned deputy industrial finds:
Rhonda Knopp, 36 years of age at hearing, is a high
Page 3
school graduate with no further training. For all practical
purposes, her entire work experience consists of eighteen
years of employment with William C. Brown Company.
Ms. Knopp has a long history of back problems,
beginning in 1975. She strained her back while lifting a
box of books in that year, but apparently did not pursue a
workers' compensation claim. Unfortunately, her symptoms
progressively developed until 1981, when she underwent
exploratory surgery at L5-S1. A congenital anomaly was
discovered, this being an enlarged dorsal ganglion. This
was decompressed and no evidence of disc protrusion was
identified. The treating surgeon, David S. Field, M.D., is
a board certified orthopedist who testified by deposition on
July 12, 1991. Dr. Field eventually assigned a ten percent
whole body impairment based on back surgery and occasional
pain in the left leg, but noted in 1982 that claimant had
made further improvement and was essentially symptom free.
Claimant saw Dr. Field again in 1986 with complaints of
intermittent aching left leg pain and some lower back pain.
Dr. Field's chart notes of January 8 of that year show no
complaints of numbness or tingling. Chart notes of February
18, 1986, show that claimant did not complain at that time
of leg pain, but had some weakness in both legs when
standing which he considered secondary to spasm. This
flare-up eventually resolved and claimant testified that she
was basically pain free from 1986 through 1988.
Claimant has held a number of jobs with Brown, but has
been a bindery worker for the last four years. This work
involves running a number of book production machines,
including collators, stitchers, punchers and binders.
Typically, workers switch machines about every four hours.
The work generally requires claimant to be on her feet most
of the day along with bending and lifting. The amount of
weight lifted at any one time is largely at the discretion
of the worker, although the work sometimes quite fast-paced.
Claimant believes she commonly lifts 25-35 pounds.
On July 30, 1988, claimant was operating the "perfect
binding" machine when she developed lower back pain during
the course of moving many bundles. She described the pain
as a sensation of pressure, like someone "riding" her back.
She was treated the following day with an epidural injection
and returned to work without medical restrictions of any
kind. Except for the injection, no time was lost from work.
On December 13, 1988, claimant was operating the same
machine when her back spasmed and "locked" up as she turned
while lifting a bundle. She was treated by James A.
Pearson, M.D., and kept off work from until December 18.
Treatment again consisted of steroid injections. On January
12, 1989, Dr. Pearson noted that claimant was still not
completely free of all discomfort, but was able to bend over
and lift. She was released on a p.r.n. (return as needed)
basis. No medical restrictions were imposed.
On June 30, 1989, claimant was working on a
stitcher/collater machine when she began developing pain
Page 4
down the left leg. This pain worsened through the day. Ms.
Knopp again underwent steroid injections and, on August 1,
was prescribed a back brace by Dr. Field. She did not miss
any work (except for those days on which she received
injections) and was released with no medical restrictions.
On September 13, 1989, claimant took a dramatic turn
for the worse. While moving 35 pound bundles from the floor
to different levels in the operation of a flat-bed collator,
her back suddenly locked up only ten minutes before quitting
time. Claimant developed sudden and severe back pain and
both legs and both feet suddenly went numb. These symptoms
were "totally different" from previous symptoms, which
involved only a "achy" pain in the left leg, no pain at all
in the right leg and no loss of sensation. Although the
"locking" sensation was gone by the next day, pain and
numbness lasted until surgery. Claimant personally has no
doubt but that her subsequent problems are directly
traceable to this incident.
The next day, Dr. Field charted his belief that her
symptoms were now more suggestive of a central type disc
syndrome. Magnetic residence imaging was ordered, resulting
in a lumbar laminectomy and removal of the L4-5 disc on
September 28, 1989, based on pre- and post-operative
diagnoses of herniated disc at that level.
Claimant's recovery went well to start, but she
developed a recurrence of parathesia into the S1
distribution after rolling over in bed. As a result, on
March 8, 1990 she underwent a repeat lumbar laminectomy with
exploration of the L4-5 disc, and a small laminectomy of
L5-S1 on the left.
Dr. Field's chart notes of June 7, 1990 reflect that
claimant was doing well with occasional minimal leg pain.
He felt there may be long term difficulty with respect to
the back and that claimant should consider other work
options or opportunities to try to reduce risk. On June 14,
he wrote defendant employer to suggest an examination of
other job opportunities within the company to reduce the
risk of long term back problems, and to inquire as to
whether formal job retraining might be available.
Claimant was released to light duty work on July 5,
1990 with restrictions against prolonged sitting or
standing, minimal bending, stooping and twisting and lifting
in excess of 20 pounds. It is unclear whether Dr. Field
intended those restrictions to be permanent. Following a
flare-up in August, the only restriction noted on a
return-to-work slip dated September 5 was to start half days
for the first three weeks. In a letter dated January 18,
1991, Dr. Field suggested that various sports claimant
typically participated in could be done at very light or
moderate activity levels, but that contact sports like
volleyball and basketball should be avoided.
Incredibly, Dr. Field was never asked about permanent
restrictions at his deposition. Although the record is most
unsatisfactory in this crucial respect, the undersigned
Page 5
concludes that the restrictions of July 3, 1990 were
intended to be permanent.
Claimant did not resume work until the week ending July
6, 1990, when she worked four hours. Prior to this, she was
not paid workers' compensation benefits, but Brown very
commendably paid her regular full time wage based on a
40-hour week. Although claimant testified that she missed
one raise during her time off work, her hourly rate was
increased from $9.07 to $9.35 beginning the week ending
October 6, 1989. After returning to work at limited hours,
claimant subsequently worked 10, 4, 10, 20, 20, 20, and 8
hours for the subsequent weeks ending August 24, 1990. She
was paid additional wages up to her regular 40 hour week in
all but three of those weeks (a total of 30 hours for the
week ending July 13, 32 hours for the week ending July 20
and 30 hours for the week ending July 27). The record does
not disclose the net wages paid claimant, only the gross.
Claimant did not work the week ending August 31, 1990,
but was paid for 40 hours. At this point, Brown changed its
policy and no longer subsidized claimant's part time work.
In the next four weeks, she worked 12, 25, 20, and 33 hours,
respectively. Full time duties were resumed during the week
ending October 5, 1990. Ms. Knopp was promoted August,
1991, and today performs quite similar duties on a full time
basis.
The key fighting point in this case is a causation
dispute: is the disc herniation that resulted in surgical
treatment causally related to one or more of these first
three injuries (when Continental was at risk) or the last
injury (when Kemper was at risk). Dr. Field testified to
his belief that the actual herniation occurred on September
13, 1989, when claimant's symptoms dramatically changed for
the worse, at least as a significant aggravation of a
preexisting condition. This was the "most significant
episode of a change in the pattern of her back symptoms."
Asked to explain that statement, Dr. Field testified:
A. Well, what I was asked to do was to review her
records in that segment of time that we have
discussed here and to respectively go back and
determine which symptoms that she presented to us
were the most typical and timely relative to a
disk problem occurring, in terms of a disk rupture
occurring. On the basis of our notes and the
evaluation of her, that particular evaluation on
September 14th, was the most, would be the most
typical of something occurring to account for the
patient with a disk surgery.
(Joint Exhibit 10, pages 15-16).
Dr. Field also noted that the herniation was a "natural
progression" of her back condition prior to September 1989,
but this was in the context of a preexisting back problem
"that finally just changed" where there were "more symptoms
compatible with a disk herniation rather than just disk wear
and tear." Dr. Field also believed that claimant's
Page 6
preexisting back problem was due to a genetic predisposition
to these problems and that the herniation would have been
the inevitable result of the complex of problems she had
been having over the years, regardless of whether or not she
was doing the kind of work that she was at Brown.
Claimant was referred to Richard F. Neiman, M.D., by
her attorney. Dr. Neiman is a board certified neurologist
who testified by deposition on May 6, 1992. Although
claimant was originally seen only for evaluation, Dr. Neiman
became a treating physician when Dr. Field moved his
practice from claimant's geographical area.
Dr. Neiman first saw claimant on August 12, 1991. He
is of the view that claimant's disc herniation was unrelated
to the 1982 ganglion removal but resulted from an ongoing
sequence of events with recurrent muscle injuries commencing
on July 30, 1988. The doctor described a process in which
abnormalities in the fibers making up the annulus (the tough
outer "gristle" of the disk) would balloon out, then
desiccate and become asymptomatic over time, and that this
process explained the first three injuries here under
consideration. However, the September 13, 1989 incident was
"finally the one that basically broke the camel's back, the
straw" where the disc had gone beyond becoming stretched or
bulged out, but became a frank disc herniation: that the
disc "just sort of gave way" on the last injury. That is,
that claimant's condition had been a "bulging" disc prior to
September 13, but that was "the time she basically herniated
her disc." Unlike Dr. Field, Dr. Neiman does not believe
that the herniation was inevitable, pointing out that he has
followed many patients for whom that was not true.
Nonetheless, he agreed that there was a causal connection
between the September herniation and the other injuries. He
also pointed out that claimant was doing relatively well
with her pain prior to the last incident.
Dr. Neiman also believed the recurrent herniation in
March 1990 was causally related to the first. He testified:
A. It's not as -- We probably deal with 20
percent probably have recurrent disc herniation.
What probably has happened is you just get in a
position, you have a little more material -- when
you do the operation where they go in, open up the
back, they make a hole, they make an -- actually a
knife incision in the annular fibers, and they go
in and they take a pituitary rongeur and they kind
of pick out this inner material, the nucleus
pulposus, which is kind of a tough, sticky stuff.
It's kind of like using bathroom caulk. And you
pull out as much as you can.
You never get it all out. And most times
that's adequate to take care of it, but sometimes
you just turn over wrong and another piece of
fiber that you missed blows out through this
deficit that you've created there and causes
recurrent disc herniation. I think that's what
happened in Rhonda.
Page 7
(Jt. Ex. 9, pp. 40-41).
Dr. Neiman specified that the March 1990 herniation and
resultant surgery was a natural consequence of the September
1989 herniation and surgery.
The doctor assessed a 20 percent body as a whole
impairment rating, attributing ten percent to the 1981
incident and the balance to the herniation of September 13,
1989 (two percent of this being attributable to the 1990
subsequent herniation).
Although Dr. Neiman also did not discuss medical
restrictions in his deposition, his letter of September 10,
1991 imposes restrictions against excessive flexion,
extension and lateral rotation of the back, temperature
extremes, and repetitive lifting of 20-25 pounds to a
maximum four times per hour at 35-40 pounds.
CONCLUSIONS OF LAW
Brown and Continental concede that claimant sustained
injuries arising out of and in the course of her employment
on September 30, 1988, December 13, 1988 and June 30, 1989.
Each injury independently caused the need for medical
treatment and the December incident resulted in lost time in
excess of three days, thus entitling claimant to temporary
total disability under Iowa Code sections 85.32 and
85.33(1). As such, each constituted a compensable and
distinct injury.
Brown and Kemper, on the other hand, deny that claimant
sustained a compensable injury on September 13, 1989.
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).
She also 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
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
Page 8
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).
While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, its mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76
N.W.2d 756 (1956). If the claimant had a preexisting
condition or disability that is materially aggravated,
accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962);
Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112
N.W.2d 299 (1961).
Two highly qualified physicians have testified to their
belief that claimant actually herniated a disc on September
13, 1989. They do so, reasonably enough, on the basis in
the dramatic change in her symptomatology. That change is
so striking that even a lay person can hardly fail to grasp
the significance. Prior to September 13, 1989 claimant had
experienced a toothache-like pain in one leg and no loss of
sensation. Although she had once previously had the
experience of her back "locking" up on her (as Dr. Neiman
indicates, presumably a muscle spasm), she recovered and
returned to her same job with only minor symptoms. She
continued working for an additional nine months before the
dramatic events of September 13. On September 13, her back
"locked up" again, but this sensation was now accompanied by
severe and piercing (enough to take her breath away) pain in
the lower back and both legs. In addition, claimant
completely lost sensation in both feet. This all occurred
as a traumatic incident while claimant was twisting and
lifting a fairly heavy load on a busy day. It can hardly be
seriously argued that this incident did not at the least
materially aggravate, worsen or light up claimant's
preexisting condition, the mere existence of which is no
defense.
Kemper makes much of Dr. Field's view that an eventual
herniation was inevitable and Dr. Neiman's agreement that
the final herniation bore a causal relationship to the
previous back injuries. Yet, this reliance is misplaced.
As to the inevitability of the eventual herniation, Dr.
Neiman's' view is more persuasive than that of Dr. Field.
Agency experience indicates that not all individuals who
develop bulging discs necessarily go on to suffer
herniation. Yet, even assuming arguendo that an eventual
herniation was "inevitable," it is undeniable that the
herniation occurred no later than September 13, 1989 as
opposed to, for instance, 1999. Without question, the
September 13 injury at least accelerated and lighted up the
injury so that it resulted in disability.
Page 9
In the three "Continental" injuries, when that carrier
bore the risk, the only dispute as to healing period or
temporary total disability relates to the time claimant lost
after September 13, 1989. Continental bears no
responsibility for that. The parties do dispute causation
of permanent disability and the extent thereof, if any.
They agree if she has sustained permanent disability, it is
an industrial disability because each injury was to the body
as a whole.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
Page 10
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
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.
An employer takes an employee subject to any active or
dormant health impairments, and a work connected injury
which more than slightly aggravates the condition is
considered to be a personal injury. Ziegler v. United
States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960),
and cases cited.
After each of the Continental injuries, claimant was
able to return to work with no medical restriction
whatsoever. She had no loss of actual income, no loss of
function, and no inability to perform physical work. She
had no loss of earning capacity. Any possible reluctance of
potential employers to consider claimant employable in the
competitive labor market because of her history of back
ailments is hugely insignificant compared to claimant's
status after her disk herniation on September 13, 1989 and
the two surgical procedures that followed.
The propriety of even considering that potential
reluctance, however, may well be now called into question by
provisions of the Americans With Disabilities Act of 1990,
Pub.L. 101-336. The ADA took effect on July 26, 1992. One
of the stated purposes of the Act is:
(1) to provide a clear and comprehensive national
mandate for the elimination of discrimination
against individuals with disabilities:
Pub.L. 101-336 section 2(b)(1).
There is certainly an argument to be made that the
passage of the ADA renders the potential disinclination of
prospective employers to treat a disabled claimant fairly as
no longer a factor. After all, goes the argument, one
should not presume noncompliance on the part of the nation's
employers.
No direct authority on the issue presently exists
because the effective date of the Act is so recent. But
this decision holds that the affect of the ADA on industrial
ability awards need not be considered here. The extent of
industrial disability should be calculated as of the end of
healing period, the date to which disability awards are
routinely keyed. Subsequent changes in condition are
routinely addressed through review-reopening. A later
change in Federal law should not operate to, in effect,
retroactively affect entitlement to disability benefits.
For one thing, it would lead to inconsistent treatment of
Page 11
identically situated individuals. For example, one
individual may receive all the benefits to which he or she
is entitled through commutation or by routine payment of
undisputed weekly benefits. Another individual, equally
disabled on the same day, might well find entitlement to
industrial disability substantially diminished by operation
of the ADA if that entitlement is determined only after a
contested case proceeding is successfully concluded.
For these reasons, it is held that the provisions of
the Americans With Disabilities Act of 1990 do not have
impact upon cases of industrial disability where the healing
period ends prior to July 26, 1992.
The subsequent herniation when claimant rolled over in
bed is obviously significant, since it directly resulted in
additional surgery, and in Dr. Neiman's view, some portion
of claimant's functional impairment. Only one opinion
appears of record as to whether that incident is causally
related to the work injury of September 13, 1989. Dr.
Neiman believes there is a direct relationship, that the
subsequent herniation was a "complication" of the September
injury. This uncontroverted opinion is accepted. The
subsequent herniation is a sequela of the first, and
therefore compensable. Hamilton v. Combined Insurance of
America, number 854465 (Appeal Decn. October 10, 1991).
Considering the factors of industrial disability, it
must be concluded that claimant suffered none of the factors
of industrial disability, or loss of earning capacity,
attributable to the "Continental" injuries. All of her
industrial disability is attributable to the events of
September 13, 1989.
What then is Rhonda Knopp's current industrial
disability? She has no substantial loss of actual earnings
since she was paid her regular wages during most of her
healing period and is now earning a greater hourly wage than
at the time of injury. It is significant that claimant is
such a long term and stable employee of the Brown Company
and that they have been able to give her continued
employment (at least to date) within her medical
restrictions. Nonetheless, claimant is clearly less
competitive on the labor market by reason of her history of
disc herniation with two surgical procedures. She has
medical restrictions which would prevent her from performing
work within her capability prior to September 13, 1989. It
will be recalled that claimant has a high school education
and very limited work experience, basically that of running
machines for a book publishing enterprise. Dr. Neiman's
restrictions are more significant than those suggested by
Dr. Field (even if the latter were intended to be permanent,
which is unclear) in that he was the most recent treating
physician. He suggests avoiding excessive flexion,
extension and lateral rotation of the back, that temperature
extremes be avoided, and that claimant limit herself to
repetitive lifting of 20-25 pounds with a four time hourly
maximum of 35-40 pounds. Given claimant's education and
work history, claimant appears best employed in a
manufacturing capacity. Her restrictions will clearly bar
Page 12
from her some positions for which she would otherwise be
suited.
Considering then these factors in particular and the
record otherwise in general, it is held that Rhonda Knopp
has sustained a permanent industrial disability equivalent
to twenty percent of the body as a whole, or 100 weeks. The
writer notes that this is the same percentage of industrial
disability claimant suggested in her brief, but that
suggestion was not a factor considered in calculating
industrial disability; it is a coincidence.
Entitlement to medical benefits is also disputed.
Brown and Kemper, however, stipulate that the providers of
medical services would testify in the absence of contrary
evidence that these and treatment were reasonable and the
latter necessary. Causal connection to the work injury is
disputed, but found established as per the foregoing
analysis. Claimant shall be awarded the unpaid medical
bills set forth in exhibit A1 totaling $23,397.84.
Defendants are entitled to credit for the wages
voluntarily paid to claimant during her healing period.
However, the evidence presented at hearing shows only the
gross wages paid. The credit to which defendants are
entitled is the net amount received by claimant after
payment of all applicable taxes. Beller v. Iowa State
Pentitentiary, number 799401 (Appeal Dec. July 10, 1991).
On that basis, defendants may unilaterally establish the
amount of credit due, but, if claimant disputes the amount
of credit, the remedy is to file a new petition (which
requires no filing fee) for a determination by the agency,
which retains jurisdiction at all stages to determine proper
credit. Bakalar v. Woodward State Hospital, number 756871
(Appeal Decn. June 16, 1989).
Claimant also seeks penalty benefits under Iowa Code
section 86.13. In her brief, it appears that her request is
limited to the failure to pay medical benefits. Although
defendants' failure to pay medical benefits was not "fairly
debatable" from this perspective, the statute does not
permit an award of penalty benefits based on the failure to
pay medical benefits. Klein v. Furnas Electric Company, 384
N.W.2d 370 (Iowa 1986). Penalty benefits based on failure
to pay weekly benefits are inappropriate, since claimant
apparently did not suffer a loss of actual earnings due to
defendant Brown's commendable payment of her regular salary.
ORDER
THEREFORE, IT IS ORDERED:
I.
In file numbers 946018, 911271, and 946019:
Claimant shall take nothing.
Defendants William C. Brown Company and Continental
Insurance shall bear their own costs pursuant to rule 343
Page 13
IAC 4.33.
II.
In file number 930441:
Defendants William C. Brown Company and Kemper
Insurance shall pay unto claimant one hundred (100) weeks of
permanent partial disability at the rate of two hundred
forty-six and 76/100 dollars ($246.76) per week commencing
September 29, 1990.
Against defendant's healing period from September 13,
1989 through July 4, 1990 and temporary partial disability
from July 5, 1990 through September 28, 1990, defendants
shall have credit for the net wages paid to claimant after
payment of all taxes. Defendants shall unilaterally
calculate that credit, but the agency retains jurisdiction
to determine the correct amount if claimant so petitions.
All accrued weekly benefits shall be paid in a lump sum
together with statutory interest pursuant to Iowa Code
section 85.30.
Defendants shall pay the medical expenses set forth in
claimant's exhibit A1 and totalling twenty-three thousand
three hundred ninety-seven and 84/100 dollars ($23,397.84).
Costs are assessed to defendants pursuant to rule 343
IAC 4.33.
Defendants shall file claim activity reports as
requested by the agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of July, 1992.
________________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Thomas M Wertz
Attorney at Law
4089 21st Avenue SW
Suite 114
Cedar Rapids Iowa 52404
Mr Steven R Cantonwine
Attorney at Law
Breakwater Building
3708 75th Street
Des Moines Iowa 50322
Mr James M Heckmann
Attorney at Law
Page 14
One CyCare Plaza
Suite 216
Dubuque Iowa 52001
1703; 1803; 2206; 2207
3003; 4000.2; 1108.50
Filed July 31, 1992
DAVID R. RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RHONDA KNOPP,
Claimant,
vs. File Nos. 911271/930441
946018/946019
WILLIAM C. BROWN COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
KEMPER INSURANCE and
CONTINENTAL INSURANCE CO.,
c/o CLAS,
Insurance Carrier,
Defendants.
___________________________________________________________
1803
Provisions of the Americans With Disabilities Act were held
to have no impact on cases of industrial disability in which
the healing period ends prior to July 26, 1992.
1703
Defendant employer paid claimant's regular wage for almost
the entire healing period. However, evidence showed only
gross wages paid, not net. Defendants are entitled only to
credit for the net amount received by claimant after payment
of all applicable taxes, and were permitted to unilaterally
establish the amount of credit due. The agency retained
jurisdiction to determine the amount of such credit upon
claimant's petition if she disputes that calculation.
1108.50; 2206; 2207
After disc herniation and subsequent surgical excision,
claimant suffered a further herniation while rolling over in
bed. This required a second surgery and entailed additional
loss of function. The only medical opinion to address the
issue was that the "bed" herniation was directly caused as a
complication of the first surgery. The second herniation
was held a sequela of the injury that caused the need for
the first surgery.
Page 2
3003
The parties stipulated to a rate that was incorrect based on
companion stipulations as to gross weekly earnings, marital
status and exemptions. The latter stipulations are
stipulations of fact, while the stipulation as to the rate
itself is a legal conclusion based upon those facts. As
such, the stipulation as to rate was rejected and claimant
was awarded benefits based on her correct rate.
4000.2
Although defendants' failure to pay weekly benefits was not
"fairly debatable," penalty benefits were not awarded where
the employer commendably paid claimant her regular wages
during healing period.