Page 1
before the iowa industrial commissioner
____________________________________________________________
:
RENEE DENNING, :
:
Claimant, :
:
vs. :
: File No. 946055
MR. CONVENIENT, JOHN STAUB, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
IMT INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition of
claimant, Renee Denning, against her employer, Mr. Convient, John
Staub, and his insurance carrier, IMT Insurance, defendants. The
case was heard on November 4, 1991, in Burlington, Iowa. The
record consists of the testimony of claimant. The record also
consists of the testimony of Robert L. Bucher. Additionally, the
record consists of claimant's exhibits A through D and
defen-dants' exhibit 1; exhibit 2, pages 10-17; and exhibit 3,
pages 1-28.
issues
The issues to be determined are: 1) whether claimant is
entitled to temporary disability/healing period benefits or
permanent disability benefits; and 2) whether claimant is
entitled to penalty benefits pursuant to section 86.13(4).
findings of fact
The deputy, having heard the testimony and considered all
the evidence, finds:
Claimant is 42 years old. She commenced her employment with
John Staub, doing business as Mr. Convenient in August of 1987.
Claimant's duties included waiting on customers, stocking cool
ers, stocking shelves, carrying beer cases, and checking gas
pumps. Claimant's duties necessitated lifting, bending, stooping
and twisting.
On April 11, 1990, claimant was working the 12:00 p.m. shift
to 5:00 p.m. She lifted a syrup tank which weighed in excess of
25 pounds. She carried the tank from the stockroom to the front
Page 2
of the store. While she was carrying the tank, she felt a burn
ing sensation in her neck and shoulders. After she had carried
the syrup tank, she encountered the business owner, John Staub.
Claimant testified that she announced to Mr. Staub: "You timed
that right. I about killed my neck."
Claimant continued working that day and for the remainder of
the week. However, claimant testified she felt worse by the fol
lowing Sunday. As a consequence, claimant left work on Sunday
April 15, 1991, and she sought emergency room services at
Burlington Medical Center. Claimant described her pain as numb
ness in her left hand and terrific pain down her left arm.
Claimant treated with Keith Riggins, M.D. Dr. Riggins
referred claimant to Vincent C. Traynelis, M.D., Assistant
Professor of Neurosurgery at the University of Iowa. Dr.
Traynelis became claimant's treating neurosurgeon. He diagnosed
claimant's condition as a cervical radiculopathy, secondary to a
herniated disk. As a result, Dr. Traynelis performed a decom
pression of the nerves with a cervical fusion. Dr. Traynelis
described the surgical process as:
A. Well, the surgery was performed on October 9th,
and what this entailed was removing the disk between
the fifth and sixth vertebrae in the neck, as well as
the sixth and seventh, and any osteophytes, or bone
spurs, that were associated with these disks, and plac
ing in a graft of bone to fill in the disk space. And
that's about it, in layman's terms.
(Exhibit A, page 8, lines 16 to 23)
Subsequent to her surgery, claimant engaged in physical
therapy. Dr. Traynelis opined claimant reached her maximum medi
cal improvement on April 30, 1991. Dr. Traynelis also placed
permanent restrictions on claimant. She is restricted from lift
ing anything greater than ten pounds. Claimant is to restrict
the use of her arms as well as to restrict her bending to pick up
objects. Dr. Traynelis opined claimant had a nine percent func
tional impairment.
For purposes of rendering an opinion relative to claimant's
impairment, claimant went to L. Strathman, M.D., on October 15,
1991. Dr. Strathman opined:
A single lateral x-ray was taken in the office at the
time of the examination, and it shows evidence of sur
gical changes at the 5-6 and 6-7 levels. It appears
that there has been some settling at 5-6 and I do not
see clear cut evidence of fusion at the 6-7 level. It
appears that part of the bone plug is present. There
is not solid bony union, but there is no evidence of
displacement.
EMG's of the left upper extremity were carried out by
Dr. Nichols and they are completely normal.
Page 3
In summary, this is a lady with a history as outlined,
who has undergone a C5 and C6 cervical fusion. She is
about one year post surgery and at this time there is
not clear cut evidence of solid bony fusion on the sin
gle lateral x-ray taken at this time. EMG's of the
left upper extremity show no evidence of axonal degen
eration, cervical radiculopathy or brachial plexopathy.
The cogwheel type movements on active examination and
the weakness are not supported with objective evidence.
Impairment at this time based on experience and the AMA
Guide, would be 7 - 9% body as a whole, based on a two
level fusion, with some residual symptoms.
(Ex. D, pp. 2-3)
At the time of the hearing, claimant was performing
volunteer services for James Grant d/b/a Grant's Body Shop in
Burlington, Iowa. Her duties consisted of running errands,
answering the phone, writing checks and writing estimates.
Claimant worked six to seven hours per day. She alternated
standing and sitting throughout the course of her day.
Claimant made application for several positions during 1991.
She applied for two positions as a convenience store worker.
Claimant also contacted the local Job Service office on several
occasions.
In January of 1992, claimant will be attending Southeast
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 func
tional 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; earn
ings prior and subsequent to the injury; age; education; motiva
tion; 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 trans
fer for reasons related to the injury is also relevant.
Like-ewise, 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 mat
ters 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 func
tional 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.
Claimant has sustained a permanent partial disability. The
treating neurosurgeon opined claimant had a nine percent func
tional impairment rating. The physician who performed the
independent medical examination rated claimant as having a seven
percent to a nine percent impairment. Claimant is permanently
restricted from lifting more than ten pounds. This is a severe
lifting restriction. She is to refrain from raising her arms to
a level of pain and to refrain from bending over.
Page 5
Claimant has some transferable skills available to her. She
had been a hair designer. At one time she held a license as a
beautician. Claimant has some education in criminal law beyond
the high school level. Claimant has been performing satisfactory
work, albeit voluntary, for Grant's Body Shop. She is quite
capable of performing the same clerical skills for another small
business where she can be compensated for her services. Claimant
has voluntarily elected not to seek employment at those busi
nesses. Claimant has applied for two positions as a convenience
store worker. She had been denied employment in both instances.
Claimant was observed during the course of the hearing.
She did not appear to be in excessive discomfort throughout the
course of the proceeding. On the day of the hearing, she ap
peared capable of sitting for nearly three hours.
It is the determination of the undersigned, in light of the
aforementioned factors, that claimant has a 15 percent permanent
partial disability.
The next issue to address is the extent of healing period
benefits for which claimant is entitled. Section 85.34(1) pro
vides that healing period benefits are payable to an injured
worker who has suffered permanent partial disability until (1)
the worker has returned to work; (2) the worker is medically
capable of returning to substantially similar employment; or (3)
the worker has achieved maximum medical recovery. The healing
period can be considered the period during which there is a rea
sonable expectation of improvement of the disabling condition.
See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa
App. 1981). Healing period benefits can be interrupted or
intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
In this instance, Dr. Traynelis opined claimant was medi
cally capable of returning to work with the aforementioned
restrictions as of April 30, 1991. It is the determination of
the undersigned that claimant is entitled to healing period bene
fits from April 15, 1990 through April 30, 1991. The period
involves 54.429 weeks of benefits at the stipulated rate of
$111.05 per week.
The final issue before this deputy is whether claimant is
entitled to penalty benefits pursuant to section 86.13(4) of the
Iowa Code. Section 86.13 permits an award of up to 50 percent of
the amount of benefits delayed or denied if a delay in commence
ment or termination of benefits occurs without reasonable or
probable cause or excuse. The standard for evaluating the rea
sonableness 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. See Stanley v. Wilson Foods Corp., file number
753405 (Appeal Decision, August 23, 1990); Seydel v. Univ. of
Iowa Physical Plant, file number 818849 (Appeal Decision,
November 1, 1989).
It is undisputed that claimant's first weekly benefit check
Page 6
was received by claimant during the first weekend in November of
1990. The check was paid nearly seven months after the injury
occurred. Such a delay was unreasonable. Claimant notified her
employer on April 15, 1990, of the work injury. It is acknowl
edged that initially defendants disputed the claim. They had
some reason to believe the injury was related to bowling. They
are allowed a reasonable time to investigate the claim. However,
a seven month investigatory period is definitely unreasonable,
given the fact that claimant's treating physician began treating
her in early June of 1990. Therefore, it is the determination of
the undersigned that claimant is entitled to penalty benefits at
the 50 percent maximum penalty rate from June 15, 1990 to
November 1, 1990. This comprises 20 weeks at $55.75 per week.
order
THEREFORE, IT IS ORDERED:
Defendants are to pay unto claimant healing period benefits
at the stipulated rate of one hundred eleven and 05/l00 dollars
($111.05) from April 15, 1990 through April 30, 1991, a period of
fifty-four point four-two-nine (54.429) weeks.
Defendants are to pay unto claimant seventy-five (75) weeks
of permanent partial disability benefits commencing on May 1,
1991 and payable at the stipulated rate of one hundred eleven and
05/l00 dollars ($111.05) per week.
Defendants are to also pay unto claimant twenty (20) weeks
of penalty benefits pursuant to section 86.13 for the period from
June 15, 1990 to November 1, 1990, at the rate of fifty-five and
75/l00 dollars ($55.75) per week.
Defendants shall receive full credit for all disability
benefits previously paid.
Costs of this action shall be assessed to defendants
pursuant to rule 343 IAC 4.33.
Defendants shall file claim activity reports as requested by
this agency pursuant to rule 343 IAC 3.l.
Signed and filed this ____ day of November, 1991.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Michael J. Schilling
Page 7
Attorney at Law
P O Box 821
205 Washington St
Burlington IA 52601
Mr. Craig D. Warner
Attorney at Law
321 N. Third St
Burlington IA 52601
1803
Filed November 18, 1991
MICHELLE A. McGOVERN
before the iowa industrial commissioner
____________________________________________________________
:
RENEE DENNING, :
:
Claimant, :
:
vs. :
: File No. 946055
MR. CONVENIENT, JOHN STAUB, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
IMT INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1803
Claimant was awarded a 15 percent permanent partial disability
for a work injury she sustained to her neck. Physicians rated
claimant as having a seven percent to a nine percent functional
impairment rating. Claimant was restricted from lifting more
than ten pounds. Claimant is to refrain from raising her arms to
a level of pain and to refrain from bending over.
Claimant has some transferable skills available to her. She
had been a hair designer. At one time she held a license as a
beautician. Claimant has some education in criminal law beyond
the high school level. Claimant has been performing satisfactory
work, albeit voluntary, for Grant's Body Shop. She is quite
capable of performing the same clerical skills for another small
business where she can be compensated for her services. Claimant
has voluntarily elected not to seek employment at those busi
nesses. Claimant has applied for two positions as a convenience
store worker. She had been denied employment in both instances.
Claimant was observed during the course of the hearing.
She did not appear to be in excessive discomfort throughout the
course of the proceeding. On the day of the hearing, she ap
peared capable of sitting for nearly three hours.
before the iowa industrial commissioner
____________________________________________________________
:
GAYLE FOOR, :
:
Claimant, :
:
vs. :
: File Nos. 946067/916715
LOUIS RICH, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
THE HARTFORD, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
August 16, 1990 is affirmed and is adopted as the final agency
action in this case.
Defendants shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of January, 1991.
________________________________
CLAIR R. CRAMER
ACTING INDUSTRIAL COMMISSIONER
Copies To:
Mr. David W. Newell
Attorney at Law
323 East 2nd St.
Muscatine, Iowa 52761
Mr. Larry L. Shepler
Attorney at Law
Suite 102 Executive Square
400 Main Street
Davenport, Iowa 52801
9998
Filed January 31, 1991
WRM
Clair R. Cramer
before the iowa industrial commissioner
____________________________________________________________
:
GAYLE FOOR, :
:
Claimant, :
:
vs. :
: File Nos. 946067/916715
LOUIS RICH, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
THE HARTFORD, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
9998
Summary affirmance of deputy's decision filed August
16, 1990.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
BARBARA STOUT,
Claimant, FILE NO. 946083
McDONALD'S, A P P E A L
Employer, D E C I S I O N
AMERICAN MOTORIST INSURANCE,
Insurance Carrier,
Defendants.
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
November 13, 1991 is affirmed and is adopted as the final agency
action in this case with the following additional analysis:
Defendants raise as an issue whether they should have been
allowed to examine claimant at hearing concerning an allegedly
inconsistent application made by her to her husband's insurance
carrier for medical benefits wherein she allegedly stated her
injury was not work-related. Although such examination would have
been relevant in terms of claimant's credibility, nevertheless
the weight of the evidence establishes a workrelated injury. A
false statement to an insurance carrier in another action might
result in an action by the carrier against the claimant if
benefits were improperly paid, but that is outside the scope of
this agency's jurisdiction. Where the evidence otherwise
indicates the existence of an injury arising out of and in the
course of the employment, even assuming that defendants had been
able to show an intentionally false statement, which claimant
denied, claimant has nevertheless established her entitlement to
benefits under workers' compensation. Although excluding the
questions may have been in error, the error was not prejudicial
and remand is not necessary and the ruling of the deputy is
adopted herein.
Defendants shall pay the costs of the appeal, including the
preparation of the hearing transcript.
STOUT V. MCDONALD'S
PAGE 2
Signed and filed this 31st day of August, 1992.
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Lance A. Grotewold
Attorney at Law
118 North Market Street
Oskaloosa, Iowa 52577
Mr. Paul C. Thune
Mr. Thomas J. McCann
Attorneys at Law
218 6th Avenue STE 300
P O Box 9130
Des Moines, Iowa 50306
9999
Filed August 31, 1992
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
BARBARA STOUT,
Claimant, FILE NO. 946083
McDONALD'S, A P P E A L
Employer, D E C I S I O N
and
AMERICAN MOTORIST INSURANCE,
Insurance Carrier,
Defendants.
9999
Summary affirmance of deputy's decision filed November
13, 1991 with short additional analysis.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
BARBARA STOUT, :
:
Claimant, :
:
vs. :
: File No. 946083
McDONALD'S, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
AMERICAN MOTORIST INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition
of claimant, Barbara Stout, against her employer,
McDonald's, and its insurance carrier, American Motorist
Insurance, defendants. The case was heard on August 6,
1991, in Ottumwa, Iowa at the Wapello County Courthouse.
The record consists of the testimony of claimant. The
record also consists of the testimonies of Virginia Snyder,
former store manager of the Oskaloosa McDonald's.
Additionally, the record consists of claimant's exhibits
1-12 and defendants' exhibits A-G.
issues
The issues to be determined are: 1) whether claimant
received an injury which arose out of and in the course of
employment; 2) whether there is a causal relationship
between the alleged injury and the disability; 3) whether
claimant is entitled to temporary disability/healing period
benefits or permanent disability benefits; and 4) whether
claimant is entitled to certain medical expenses pursuant to
section 85.27 of the Iowa Code.
findings of fact
The deputy, having heard the testimony and considered
all the testimony, finds:
Claimant is a 38 year old woman who is married and who
has three children. In August of 1988, claimant commenced
her employment with defendant. She was hired to work in the
grill area where she was required to place hamburger patties
on the flat grill surface, flip the patties over with a
spatula, and place the patties on buns. Claimant was also
hired to dump fish fillets and chicken patties into a large
wire basket, place the basket in hot grease vats, and remove
Page 2
the baskets when the product had properly cooked.
Claimant testified she was right handed and that she
used her right wrist and hand to flip the burgers and to
cook the deep fry products. Claimant testified she flipped
more than 100 burgers per shift.
According to claimant's testimony, she first
experienced difficulties with her right arm on October 22,
1988, and that as a result of her right arm problems, she
first missed work due to right arm pain on October 22, 1988.
On the succeeding day, claimant sought medical treatment at
the Mahaska County Hospital. The attending physician
prescribed medication, a splint and advised claimant to
elevate her hand. Claimant was also advised to stay off
work for one week.
Claimant sought treatment from Marc E. Hines, a
neurologist. The physician ordered an EMG. The test
results indicated claimant had carpal tunnel syndrome and an
ulnar nerve neuropathy compression syndrome at the elbow.
Brad Adams, M.D., recommended a right carpal tunnel
release, an ulnar nerve release at the right elbow and an
anterior ulnar nerve transposition. On November 30, 1988,
Dr. Adams performed a "[c]arpal tunnel release, volar
aspect, right wrist. Cubetal [sic] tunnel release, right
elbow, with anterior ulnar nerve transposition."
As of March 17, 1989, Dr. Adams released claimant to
return to work. He advised claimant to increase her work
hours to 40 per week and to refrain from lifting more than
25 pounds for four weeks duration. On February 15, 1990,
Dr. Adams performed a release of the first dorsal
compartment of the right wrist.
Dr. Adams examined claimant on May 3, 1990. He
recommended that claimant switch occupations. In his office
notes, he wrote:
She comes in today for evaluation of her right
upper ext. She was apparently seen by Dr. Hines
yesterday, repeating EMG nerve cond. studies -
they apparently did show some return of carpal
tunnel, cubital tunnel symptoms. She is also
complaining of tendonitis over the dorsum of her
right wrist, in tubercle region.
O - PE - No swelling, all wounds completely
healed, NVI. We do not have EMG nerve cond.
studies.
A - Probable tendonitis.
PRocedure:[sic] After sterile prep, inj. of the
tubercle area with 1Æ cc. of Xylocaine with 1/4 cc.
of Depomedrol [sic] and Æ cc. of 0.25% Marcaine.
P - 1) Wrist splint.
2) Ibuprofen.
3) Basically told the pt. she should consider
change in vocation.
4) F-UP with me in 4 wks. for recheck.
BA/dh
Page 3
(Exhibit 6, page 2)
Dr. Adams again examined claimant on June 4, 1990. He
placed claimant on an occupational therapy program for her
right thumb/wrist and hand. In a follow-up exam on July 16,
1990, Dr. Adams noted:
Clinically I think she has an overuse syndrome of
her extremities. I think over a period of time
she should continue to improve. I told her to
give it four or five months. She will follow up
with me on a prn basis.
(Ex. 7a)
In May of 1990, claimant sought a neurological exam
from Dr. Hines for her headaches. As part of the
examination, Dr. Hines also examined claimant's upper
extremities. Dr. Hines, in his report of May 2, 1990 wrote:
An EMG was then performed and revealed that the
patient had some mild C-6 radiculopathy as well as
denervation of the opponents pollicis consistent
with continued carpal tunnel syndrome. There was
also some denervation in the distribution at the
ulnar nerve below the elbow consistent with a mild
ulnar neuropathy; however, this had not been
demonstrated on nerve conduction velocities.
In conclusion then, we were able to state that the
patient had some mild cervical nerve root
irritation at least and had some residual carpal
tunnel syndrome possibly worsening and some early
ulnar neuropathy. In discussing this with her we
found that she does sleep with her arm bent at
night and we instructed her to sleep with her arm
straight and to followup [sic] with Dr. Adams as
soon as possible concerning her carpal tunnel
syndrome. We will go ahead and followup [sic]
with her ourselves in July and she will contact us
if her headaches are not improved....
(Ex. 8)
Following June of 1990, Dr. Hines only saw claimant for
her non-work related headaches. He did not treat claimant
for her upper extremity problems.
Pursuant to defendants' request, claimant was examined
by John H. Kelly, M.D., on June 27, 1991. Dr. Kelly opined:
Reflexes are equal and reactive. Pulses are
normal. Vascular tests are negative. Grip
strength is left 20 kg., right 18 kg. Pinch
strength right 5 kg., left 6 kg. She has a full
range of motion in all joints of both upper
extremities. Tinel's sign is negative
bilaterally. Phalen's test is negative
bilaterally. Finkelstein's test is positive on
Page 4
the right. She has some differences in sensory
appreciation which are difficult to correlate with
the median nerve problem.
X-RAYS: X-rays of the cervical spine
are
within normal limits. X-rays
of
both wrists are within normal limits.
IMPRESSION: Status postoperative carpal
tunnel,
cubital tunnel, and
deQuervain's
tenosynovitis surgery of right upper extremity.
Status
carpal tunnel syndrome of the left wrist.
DISCUSSION: She has an 8% permanent
partial
impairment of the right upper
extremity and a 5% permanent partial impairment of
the
left upper extremity.
KELLEY/smn
(Ex. 10, pp. 2 & 3)
At the hearing claimant testified she had not been
employed since April of 1990.
conclusions of law
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
Page 5
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296,
297 (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 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).
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).
Claimant has proven that she sustained a work related
injury which arose out of and in the course of her
employment. Prior to her employment with
defendant-employer, claimant had experienced no problems
with her right upper extremity. It was only after she had
begun her job with defendant-employer that she had started
experiencing numbness in her right hand or arm. Claimant
had no prior right upper extremity difficulties. Claimant's
job involved repetitive activities which required use of the
right upper extremity. Claimant performed the same task of
flipping burgers with her right hand/arm. Claimant's right
upper extremity problems developed over the course of
several months. It was not until October 22, 1988, that
claimant missed work because of the right arm.
It is this deputy's determination that claimant's
injury arose out of and in the course of her employment. It
is also this deputy's determination that claimant's right
upper extremity condition is causally related to claimant's
work injury of October 22, 1988. No medical practitioner
has determined there is a cause other than claimant's
repetitive work motions.
Therefore, in light of the above, claimant is entitled
to healing period benefits from October 22, 1988 through
December 23, 1989, January 16, 1989 through February 3,
1989, and from February 15, 1990 through March 17, 1990.
These periods encompass 68.286 weeks at the stipulated rate
of $74.80 per week.
Per the stipulation of the parties, claimant is also
entitled to 20 weeks of permanent partial disability
benefits at the stipulated rate of $74.80 per week.
The final issue to address is whether claimant is
entitled to certain medical benefits pursuant to section
85.27. Under section 85.27 the employer shall furnish
Page 6
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).
The following expenses are causally related to
claimant's work injury for which defendants are liable:
Family Medical Clinic:
10/26/88 $ 21.00
11/6/89 80.00
11/22/88 112.00
11/30-12/10/88 1,410.00
12/5-8/89 102.00
2/19/90 5.00
2/15-3/5/90 488.00
3/8-9/90 82.00
5/10/90 42.00
$2,342.00
Mahaska County Hospital:
10/23/88 $ 97.75
12/25/88 78.30
11/30-12/3/88 2,933.75
2/8/90 40.00
2/8-2/15/90 1,245.56
2/15/90 1,205.60
5/2/90 83.20
6/18-23/90 [sic] 229.00
$6,224.76
Central Iowa Orthopaedics:
6/4/90 $ 46.00
8/28/90 145.00
7/26/90 10.00
$
201.00
Page 7
Mahaska Anesthesia Service:
2/15/90 $ 227.50
$
227.50
order
THEREFORE, IT IS ORDERED:
Defendants are to pay unto claimant sixty-eight point
two-eight-six (68.286) weeks of healing period benefits at
the stipulated rate of seventy-four and 80/l00 dollars
($74.80) per week.
Defendants are to pay unto claimant twenty (20) weeks
of permanent partial disability benefits at the stipulated
rate of seventy-four and 80/l00 dollars ($74.80) per week
and commencing on June 27, 1991.
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.
Defendants are also liable for the aforementioned
medical expenses pursuant to section 85.27.
Costs are taxed to defendants pursuant to rule 343 IAC
4.33, including:
8/31/90 Central Iowa Orthopaedics fee
145.00
9/5/90 Industrial Commissioner filing fee
65.00
9/5/90 Certified Mail for Petition
4.00
TOTAL ...........
$214.00
Defendants shall file a claim activity report as
requested by this division pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of November, 1991.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Page 8
Mr. Lance A. Grotewold
Attorney at Law
118 N Market St
Oskaloosa IA 52577
Mr. Paul C. Thune
Mr. Thomas J. McCann
Attorneys at Law
218 6th Ave STE 300
P O Box 9130
Des Moines IA 50306
2209
Filed November 13, 1991
MICHELLE A. McGOVERN
before the iowa industrial commissioner
____________________________________________________________
:
BARBARA STOUT, :
:
Claimant, :
:
vs. :
: File No. 946083
McDONALD'S, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
AMERICAN MOTORIST INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
2209
Claimant sustained a cumulative type injury to the right
upper extremity after she engaged in repetitive type
activities at work. Claimant was required to engage in
repetitive movements when she flipped burgers on a grill.
Claimant was awarded healing period and permanent partial
disability benefits.
Page 1
before the iowa industrial commissioner
____________________________________________________________
_____
:
DANIEL J. JONES, :
:
Claimant, : File No. 946085
:
vs. : A P P E A L
:
HOLIDAY INN, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
_____
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal.
issues
Those portions of the proposed agency decision pertaining to
issues not raised on appeal are adopted as a part of this
appeal decision. Defendant states the following issue on
appeal: "whether or not the Claimant sustained an injury on
May 21, 1990, which arose out of and in the course of
employment with the Employer."
Claimant states the following issues on cross-appeal:
1. Whether the Deputy Industrial Commissioner
erred in determining that Claimant is not entitled
to penalty benefits under Iowa Code Section
86.13(4).
2. Whether the Deputy Industrial Commissioner
erred in limiting temporary total disability
benefits to 6.571 weeks.
3. Whether the Deputy Industrial Commissioner
erred in determining that Claimant would remain
liable for certain medical benefits.
findings of fact
The findings of fact contained in the proposed agency
decision filed May 28, 1992 are adopted as set forth below.
Segments designated by asterisks (*****) indicate portions
of the
Page 2
language from the proposed agency decision that have been
intentionally deleted and do not form a part of this final
agency decision. Segments designated by brackets ([ ])
indicate language that is in addition to the language of the
proposed agency decision.
*****
[Claimant performed maintenance work for defendant
hotel.] On Sunday, May 20, 1990, claimant called in sick
and missed that one day of work. Claimant and his mother,
Shirley Jones, testified that claimant and his whole family
were sick that day with flu-like symptoms. Employer,
through the testimony of Patrick Gibson and Jim Kramer,
contended that claimant missed work on Sunday because he was
drunk on Saturday night. Gibson and Kramer testified that
on Saturday, May 19, 1990, all three of them went over to
East Dubuque after 11 p.m. and consumed alcoholic beverages
in various bars until 3 a.m. on Sunday, May 20, 1990. Both
Gibson and Kramer testified that claimant was intoxicated in
some degree. Claimant denied being in East Dubuque;
drinking with Gibson and Kramer on Saturday, May 19, 1990,
and Sunday, May 20, 1990; or that he was intoxicated.
*****
Claimant started to work for employer on April 27,
1989, in the maintenance department taking care of
buildings. Although his normal shift was from 2:30 p.m.
until 11 p.m., he was notified on Sunday, May 20, 1990, that
he was ordered to report to work at 7 a.m. on Monday, May
21, 1990. Ninneman testified that he told claimant that he
was changing him to a different shift because, "...I wanted
him with me, that I'm going to have to schedule someone else
in place of him if I can't have him be dependable to come in
to work." (Transcript, page 118) Claimant testified (tr.,
p. 23) and Ninneman admitted (tr., p. 119) that claimant's
hours were cut from 40 hours per week to 20 hours per week
on Monday morning, May 21, 1990. Claimant testified that he
was told that it was necessary to cut the budget, but Mary
Salinas, the motel manager, testified that the motel did not
have any financial problems and indicated it was not
necessary to cut the budget. Ninneman testified that he
just didn't need a person with him that much (tr., p. 119).
Claimant testified that on Monday, May 21, 1990, he
asked for some time off because his brother was coming home
from the navy. Both Ninneman and Salinas denied his
request, and they both allege that claimant told them that
he would get the time off one way or another. A short time
later it was reported that
Page 3
claimant fell off a ladder and was injured. Both Ninneman
and Salinas were suspicious and they contend that claimant
feigned the fall in order to obtain time off work.
*****
Claimant testified that he was standing about half way
up on a six-foot stepladder scraping paint off the bottom of
an overhang of a second floor walkway. He testified that
the sidewalk was cracked and the outer portion of it slanted
downhill slightly toward the parking lot. Two of the
photographs of the accident scene verify that a segment of
the concrete does slant downhill slightly immediately
adjacent to the blacktop parking area; and the photographs
show that the seams around the concrete squares were open in
what resembles a crack (exhibits J & K). Claimant testified
that the stepladder was old and rickety, whereas Ninneman
testified that it was useable and was still in use.
Claimant testified that as he was scraping, the ladder
twisted and his right shoulder just twisted around and he
fell off the ladder and it landed on top of him away from
the building out in the parking lot. He stated that he
landed on his hand and his elbow. He remembered that Karen
Spechtenhauser, a housekeeper, was four rooms down from
where he was scraping. She came running out to help him,
but she told him to lie there and she would get help (tr.,
pp. 25-29).
Spechtenhauser testified that she did not hear any
noise at the time of the fall nor did claimant cry out
loudly, but she did hear claimant calling her name very
softly. She looked out and saw claimant on the parking area
beside with the ladder laying on its side in a V position
some distance from the sidewalk. Claimant asked her to help
him up. She asked him if he was hurt. Claimant responded
that he had hurt his neck. She told him to stay there and
she would get some help (tr., pp. 142-145). Spechtenhauser
called the front desk and told them that Dan had fallen and
she needed help (tr., p. 147).
Ninneman and Salinas also came to the scene of the
accident and found claimant lying on his back on the
blacktop parking area. Neither Spechtenhauser, Ninneman nor
Salinas saw any physical signs of injury on claimant's body
nor did they find his clothing dirty or soiled. Claimant
testified that they kept the parking lot vacuumed (tr., p.
61). From the photographs a person could determine either
that his clothing would be soiled or his clothing would not
be soiled (exs. F and K).
Claimant estimated he landed eight feet from the
sidewalk (tr., p. 123). Ninneman said he measured it at
eighteen feet (ex. N). Ninneman previously had a different
opinion of what the distance might have been however (tr.,
pp. 125-126). Salinas testified that the ladder was three
or four feet away from the sidewalk (tr., p. 154).
Therefore, the distance of the ladder and claimant from the
sidewalk is inconclusive.
An ambulance was called, claimant's neck was placed in
Page 4
a harness or collar, his body was placed on a board, and he
was transported to Finley Hospital (tr., p. 30).
Claimant's mother testified that she was bringing his
lunch to work when Spechtenhauser told her that her son had
been injured by falling off the ladder and he was being
placed in an ambulance at that time (tr., p. 73).
The ambulance call record reported that claimant was on
a step approximately six feet above the ground when the
ladder slipped and he fell to the ground. Claimant related
that he hit his head when he landed. He reported pain in
the neck area, clavicle area and rib area at T-8 on the left
side. Claimant told the paramedics he struck his head on
the ground, but they noted that there was no deformity from
it. The paramedics also noted that claimant complained of
pain in both elbows upon movement, but they noted that no
deformity or injury was observed. They recorded that
claimant denied pain in the lower extremities. The
paramedics indicated the chief complaint was head and neck
pain (ex. 3, pp. 1-2; ex. M, section B, pp. 5 & 7).
The Finley Hospital emergency room record reflects that
claimant fell approximately six to eight feet from a ladder.
He was complaining of neck, right elbow and left rib pain.
He was unsure of how he landed but states he knows he hit
his head. That record reflects that no obvious deformities
were noted. The chief complaints were "neck/shoulders" (ex.
1; ex. M, sec. B8, p. 1).
Claimant was seen at the Finley Hospital emergency room
by A. McDermott, M.D., who noted that the patient complained
of neck, right elbow and left rib pain. Dr. McDermott
wrote, "He did bump his head...." He recorded his
diagnosis as, "Acute strain of the neck muscles. Contusion
of the right elbow and contusion of the left rib cage."
(Ex. 2; ex. M, sec. B8, p. 2).
X-rays of the chest and left ribs, right elbow and
cervical spine were all negative (ex. M, sec. B8, pp. 3-4).
Dr. McDermott released claimant in apparently satisfactory
condition (ex. 1; ex. M, sec B8, p. 2); nevertheless, he
took claimant off work until May 24, 1990 (ex. M, sec. B8,
p. 6).
Claimant's personal physician, Mark Liaboe, M.D., shows
an entry for May 21, 1990, which should be May 22, 1990,
because he states claimant fell off a ladder yesterday and
landed on his back and the back of his neck on a parking
lot. Claimant continued to have complaints in the cervical
region and posterior head which were aggravated by movement.
Claimant also complained that he was nauseated and vomited
last night and today. Dr. Liaboe recorded tenderness over
the occiput and tenderness and reluctance to move the neck.
The paracervical and trapezius muscles were tender
bilaterally. Dr. Liaboe concluded, "This likely represents
cervical muscular strain and closed cranial trauma." (Ex.
16, p. 2; ex. M, sec. A, p. 7).
On May 25, 1990, when claimant continued to have
Page 5
persistent headache and nausea, but had not been vomiting,
Dr. Liaboe ordered a CT scan of the head which turned out
negative for fracture or blood. He still had tender
paracervical and trapezius muscles. Dr. Liaboe concluded,
"This represents a post traumatic headache syndrome." (Ex.
16, p. 2; ex. M, sec. A, p. 7). Dr. Liaboe added that
claimant remained disabled as of May 25, 1990.
The doctor's office notes next reflect that on May 31,
1990, claimant's mother called that he was very ill, weak,
was complaining of severe headaches, was vomiting, had a
swollen hand, was in a lot of pain, and was sick all over.
Claimant's mother was instructed to take him to Finley
Hospital where he was admitted on May 31, 1990, through the
emergency room where it was recorded that he had vomited 15
times since the fall off the ladder, weakness, low back
pain, neck pain, and right hand pain (ex. 6; ex. M, sec. B,
p. 20).
The emergency room physician, T. Gifford, M.D., said
claimant fell six feet from a ladder on May 21, 1990, and
that both his accident injuries and his diabetes mellitus
had progressed while he was attempting to recuperate at
home. He diagnosed (1) diabetic ketoacidosis and (2)
head/neck/back pain etiology undetermined. Dr. Gifford did
note that the neck was markedly resistant to flexion because
of pain in the back of the neck and head (ex. 7, pp. 1-2;
ex. M, sec. B10, pp. 22-23).
J.P. Viner, M.D., performed an admitting examination
and determined that claimant was suffering from diabetic
ketoacidosis and neck stiffness. Dr. Viner noted that
claimant fell from a ladder at work ten days ago as the
origin of this episode. He stated that even though claimant
had juvenile onset of diabetes mellitus, insulin requiring,
three years ago, he had been well maintained on NPH 25 units
every morning and that he had never suffered diabetic
ketoacidosis before. A cerebral spinal fluid (CFS) tap was
negative for posttraumatic meningitis (ex. 9, pp. 1-2; ex.
M, B10, pp. 6-7).
Page 6
Claimant was also examined on May 31, 1990, by Patrick
Sterett, M.D., a neurologist, who stated that claimant was
admitted with severe occipital headaches and posterior
cervical neck pain after a fall of about six feet from a
ladder earlier that month. His examination demonstrated
tenderness of the occipital scalp and temporal regions
bilaterally. Dr. Sterett's first assessment was:
Post concussion syndrome. He is complaining of
some dizziness and headaches now since the fall on
the 21st of May. The headaches that he has at
present are probably post concussion headaches,
but some are probably contributed through
ligamentous and paraspinal cervical muscular
injury (sprain).
(Exhibit 10, page 2; exhibit M, section B10, page 9)
X-rays of the lumbosacral spine, cervical spine and
thoracic spine on June 1, 1990, were all normal. An x-ray
of the right hand on June 1, 1990, showed a comminuted,
slightly angulated fracture of the neck of the fifth
metacarpal which was described as a boxer's fracture of the
neck of the fifth metacarpal (ex. 11; ex. M, sec. B10, pp.
15-16). An MRI of the head on June 2, 1990, was normal (ex.
M, B10, p. 18). A CT scan of the lumbosacral spine on June
5, 1990, showed a congenital spinal stenosis of the lower
lumbar spine and symmetric annular bulge of the L5-S1 disc
with narrowing of the AP dimension of the canal (ex. 12).
The discharge diagnosis was prepared by J.S. Chapman,
M.D., who noted that the intravenous dexamethasone and other
symptomatic interventions administered by Dr. Sterett had an
understandable worsening effect temporarily on claimant's
diabetes. Dr. Chapman concluded, "This appears to be a
post-concussion syndrome." (ex. 15, p. 2; ex. M, B10, p. 3).
Dr. Chapman also stated that claimant had a cervical spine
sprain, right ulnar nerve injury, fracture of the distal
fifth metacarpal, congenital stenosis of the lumbar spine,
congenital bilateral hearing loss and insulin-requiring
diabetes. Dr. Chapman recommended that claimant contact
vocational rehabilitation with regard to training for
something more compatible with his health problems (ex. 15,
p. 2; ex. M, B10, pp, 1-3).
Dr. Chapman wrote a letter to the insurance carrier on
June 15, 1990, which stated claimant fell off the stepladder
on May 21, 1990, and injured his neck, back, and fractured
the fifth metacarpal on his right hand (ex. 17; ex. M, sec.
A, p. 27).
*****
Shirley Jones, claimant's mother, testified that she
and her husband, claimant's father, kept a constant vigil
over claimant as they were instructed to do by the doctors
to make sure that he would awake on voice command because of
the suspected head concussion. Jones testified that
claimant became progressively worse because he ate very
little and what he did eat, he threw up. The doctor
Page 7
eventually directed her to bring him to the hospital on May
31, 1990 (tr., pp. 76-77). She said he was not covering his
insulin, which means he was not receiving 3200 calories from
food to cover the amount of insulin he was taking. Orange
juice was the only food which he could keep down. Every
time he took solid food, he threw it back up (tr., p. 77).
When he arrived at the hospital, it was found that his blood
sugar was way out of proportion and they injected him with
whole insulin (tr., p. 78). Likewise, his hand was swollen
(tr., p. 78). His elbow was injured and he was unable to
straighten his arm out (tr., p. 79). Mrs. Jones added that
claimant has had trouble with his hands ever since he was a
child with what doctors described as boxer type of injuries
which were due to fragile bones because he never drank milk
until he had diabetes which left his body calcium deprived
(tr., p. 81).
The deputy saw and heard the witnesses, claimant and
his mother, and it is determined that their testimony on
these points is credible.
Dr. Gifford, on May 31, 1990, began with the history of
claimant's fall from the ladder and traced how claimant's
condition had become progressively worse both with respect
to the traumatic injuries and the nausea and vomiting (ex.
7; ex. M, B10, p. 22).
Dr. Viner, on May 31, 1990, stated that although
claimant had juvenile onset diabetes mellitus, insulin
requiring, three years ago, he had never before experienced
diabetic ketoacidosis (ex. 9; ex. M, B10, p. 6).
Dr. Chapman stated that the intravenous dexamethasone
and other symptomatic interventions administered by Dr.
Sterett temporarily worsened claimant's diabetes while in
the hospital after May 31, 1990 (ex. 15; ex. M, B10, p. 2).
conclusions of law
The conclusions of law contained in the proposed agency
decision filed May 28, 1992 are adopted as set forth below.
Segments designated by asterisks (*****) indicate portions
of the language from the proposed agency decision that have
been
Page 8
intentionally deleted and do not form a part of this final
agency decision. Segments designated by brackets ([ ])
indicate language that is in addition to the language of the
proposed agency decision.
*****
The question of causal connection is essentially within
the domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered
with all other evidence bearing on the causal connection.
Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73
N.W.2d 732 (1955).
*****
Claimant did not prove that he sustained a back injury
from this fall. He did not indicate that he had any back
pains to any of the persons who came to the scene of the
accident. He did not mention back pains or lower extremity
difficulties to the paramedics, but on the contrary, they
indicated his lumbosacral spine and lower extremities had no
problems. Claimant voiced no complaints about his back to
Dr. McDermott in the emergency room. Claimant did not
complain about any back symptoms to Dr. Liaboe. Claimant
has had back problems in the past when he fell 14 feet from
a ladder while working for another employer. Dr. Chapman
found that the lumbar spinal stenosis was congenital.
Wherefore, it is determined that claimant did not
sustain an injury from the fall from the ladder on May 21,
1990, to his back or lumbosacral spine which arose out of
and in the course of employment with employer.
*****
[The initial question is whether claimant has suffered an
injury arising out of and in the course of his employment.
It is important to note that claimant requested time off
because his brother was returning from the Navy. Claimant's
request was denied. Claimant then stated that he would
obtain the time off one way or another. Fifteen minutes
later, claimant's alleged injury occurred.
Claimant alleges he fell off a ladder. However, a
housekeeper working only a short distance from the site of
the alleged accident failed to hear any noise from the
accident, even though claimant alleges both he and a ladder
fell to the pavement. The housekeeper did hear claimant
calling to her in a quiet voice, however.
When found, claimant had no soil on his clothing or other
indication he had fallen to the ground. Claimant had no
blood or abrasions. There were no witnesses to the alleged
injury. The physical evidence presented as to the surface
the ladder was standing on, the incline, etc., are
inconsistent with claimant's version of the event.
In short, there was no witness or evidentiary corroboration
of claimant's alleged injury. There was considerable
evidence tending to show the injury did not occur. The only
possibly corroborating factor was that claimant's hand did
exhibit some swelling after the alleged injury. However,
Page 9
there is competent evidence in the record establishing that
this swelling could as easily have been caused by a
fistfight claimant was in prior to the date of the alleged
injury. Two witnesses testified that claimant was out
drinking the weekend before the alleged work injury, but
claimant and his mother testified to the contrary. The
witnesses have no incentive to fabricate their testimony.
Although the fistfight claimant was involved in was not the
weekend before his alleged injury, it was stated to be
within the several days preceding the alleged injury date.
Taken as a whole, claimant is found not to be credible.
Although it is conceivable that claimant might suffer an
injury within fifteen minutes of his statement that he would
find some way to obtain time off, it is far more likely that
claimant fabricated the injury to obtain the time off. This
conclusion is supported by the failure of the housekeeper to
hear the fall, even though she could hear claimant calling
to her in a quiet voice; by the absence of tearing or
soiling of claimant's clothing; and by the absence of cuts,
scrapes, blood or abrasions on claimant's body.
The greater weight of the evidence indicates that claimant
did not suffer a work-related injury. Claimant has failed
to carry his burden of proof.]
WHEREFORE, the decision of the deputy is reversed.
order
THEREFORE, it is ordered:
That claimant take nothing from these proceedings.
Page 10
That claimant shall pay the costs of this matter including
the transcription of the hearing.
Signed and filed this ____ day of December, 1992.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies to:
Mr. Steven G. Klesner
Mr. James Heckmann
Attorneys at Law
One CyCare Center, STE 216
Dubuque, Iowa 52001
Mr. Jay P. Roberts
Attorney at Law
620 Lafayette St
PO Box 178
Waterloo, Iowa 50704
1402.20; 2902
Filed December 31, 1992
Byron K. Orton
WRM
before the iowa industrial commissioner
____________________________________________________________
_____
:
DANIEL J. JONES, :
:
Claimant, : File No. 946085
:
vs. : A P P E A L
:
HOLIDAY INN, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
_____
1402.20 - 2902
Claimant asked for time off work, but was denied. Claimant
then announced he would get the time off work "one way or
another." Fifteen minutes later, Claimant allegedly fell
off a ladder. A housekeeper in a nearby hotel room failed
to hear the fall, but did hear claimant calling to her
softly. Claimant had no external evidence of injury when
ambulance arrived. X-rays showed some injury to claimant's
hand, but evidence showed claimant had been in a bar fight
within the several days leading up to the alleged injury.
Held that taken as a whole, claimant was not credible and
had failed to prove a work injury. Deputy reversed.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
DANIEL J JONES, :
:
Claimant, : File No. 946085
:
vs. :
: A R B I T R A T I O N
HOLIDAY INN, :
: D E C I S I O N
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
introduction
This is a proceeding in arbitration brought by Daniel
J. Jones, claimant, against Holiday Inn, self-insured
employer, defendant, for benefits as the result of an
alleged injury which occurred on May 21, 1990. A hearing
was held in Dubuque, Iowa, on April 6, 1992, and the case
was fully submitted at the close of the hearing. Claimant
was represented by James M. Heckmann and Steven G. Klesner.
Defendants were represented by Jay P. Roberts. The record
consists of the testimony of Daniel J. Jones, claimant; Joe
Hickson, former coemployee; Shirley Jones, claimant's
mother; Patrick Gibson, coemployee at the time of the
injury; Jim Kramer, coemployee at the time of the injury;
Dennis Ninneman, maintenance supervisor; Karen
Spechtenhauser, assistant executive housekeeper; Mary
Salinas, general manager; claimant's exhibits 1 through 19;
and defendant's exhibits E through K, M and N. Claimant's
attorneys submitted a brief description of disputes at the
time of the hearing. The deputy ordered a transcript of the
hearing. Both attorneys submitted excellent posthearing
briefs. The determination of the issues in this case was
complicated by the fact that the parties did not prepare a
joint exhibit and therefore, many of the exhibits were
duplicated and each exhibit had to be examined to insure
that the information was the same on both exhibits.
issues
The parties submitted the following issues for
determination:
Whether claimant sustained an injury on May 21, 1990,
which arose out of and in the course of employment with
employer;
Whether the injury was the cause of temporary or
permanent disability;
Whether claimant is entitled to temporary or permanent
disability benefits, and if so, the nature and extent of
benefits to which he is entitled;
Page 2
Whether claimant is entitled to medical benefits;
Whether claimant is entitled to penalty benefits under
Iowa Code section 86.13(4); and
Whether the claimant's attorney's lien should extend to
medical benefits.
findings of fact
injury
It is determined that claimant sustained an injury to
his head, neck, right elbow, and left rib cage on May 21,
1990, which arose out of and in the course of employment
with employer.
It is determined that the fall of May 21, 1990, was not
the cause of an injury to claimant's lumbosacral spine.
It is further determined that the injury of May 21,
1990, was the cause of injury to claimant's right hand but
not the angulation fracture of the fifth metacarpal.
It is further determined that the injury of May 21,
1990, did temporarily aggravate, accelerate, exacerbate, and
light up claimant's juvenile onset diabetes mellitus II
which had been diagnosed in 1987 which had been regulated by
insulin at the time of the injury.
Claimant started to work for employer on April 27,
1989.
Shortly, before this injury occurred, there was a
conflict between claimant, a maintenance employee, and
Dennis Ninneman, maintenance supervisor, and Mary Salinas,
motel manager. This conflict persisted until the date of
the hearing and was manifested in the testimony of these
parties.
On Sunday, May 20, 1990, claimant called in sick and
missed that one day of work. Claimant and his mother,
Shirley Jones, testified that claimant and his whole family
were sick that day with flu-like symptoms. Employer,
through the testimony of Patrick Gibson and Jim Kramer,
contended that claimant missed work on Sunday because he was
drunk on Saturday night. Gibson and Kramer testified that
on Saturday, May 19, 1990, all three of them went over to
East Dubuque after 11 p.m. and consumed alcoholic beverages
in various bars until 3 a.m. on Sunday, May 20, 1990. Both
Gibson and Kramer testified that claimant was intoxicated in
some degree. Claimant denied being in East Dubuque;
drinking with Gibson and Kramer on Saturday, May 19, 1990,
and Sunday, May 20, 1990; or that he was intoxicated.
It is not necessary to resolve this conflict of
testimony in order to decide the hearing issues in this
case.
Claimant started to work for employer on April 27,
Page 3
1989, in the maintenance department taking care of
buildings. Although his normal shift was from 2:30 p.m.
until 11 p.m., he was notified on Sunday, May 20, 1990, that
he was ordered to report to work at 7 a.m. on Monday, May
21, 1990. Ninneman testified that he told claimant that he
was changing him to a different shift because, "...I wanted
him with me, that I'm going to have to schedule someone else
in place of him if I can't have him be dependable to come in
to work." (transcript page 118). Claimant testified (tr.
p. 23) and Ninneman admitted (tr. p. 119) that claimant's
hours were cut from 40 hours per week to 20 hours per week
on Monday morning, May 21, 1990. Claimant testified that he
was told that it was necessary to cut the budget, but Mary
Salinas, the motel manager, testified that the motel did not
have any financial problems and indicated it was not
necessary to cut the budget. Ninneman testified that he
just didn't need a person with him that much (tr. p. 119).
Thus, the real reason that claimant's shift was changed from
evenings to days and why his hours were cut from 40 to 20
was not reliably explained.
Claimant testified that on Monday, May 21, 1990, he
asked for some time off because his brother was coming home
from the navy. Both Ninneman and Salinas denied his
request, and they both allege that claimant told them that
he would get the time off one way or another. A short time
later it was reported that claimant fell off a ladder and
was injured. Both Ninneman and Salinas were suspicious and
they contend that claimant feigned the fall in order to
obtain time off work.
The evidence used to determine the issue of injury in
this case is as follows:
Claimant testified that he was standing about half way
up on a six-foot stepladder scraping paint off the bottom of
an overhang of a second floor walkway. He testified that
the sidewalk was cracked and the outer portion of it slanted
downhill slightly toward the parking lot. Two of the
photographs of the accident scene verify that a segment of
the concrete does slant downhill slightly immediately
adjacent to the blacktop parking area; and the photographs
show that the seams around the concrete squares were open in
what resembles a crack (exhibits J & K). Claimant testified
that the stepladder was old and rickety, whereas Ninneman
testified that it was useable and was still in use.
Claimant testified that as he was scraping, the ladder
twisted and his right shoulder just twisted around and he
fell off the ladder and it landed on top of him away from
the building out in the parking lot. He stated that he
landed on his hand and his elbow. He remembered that Karen
Spechtenhauser, a housekeeper, was four rooms down from
where he was scraping. She came running out to help him,
but she told him to lie there and she would get help (tr.
pp. 25-29).
Spechtenhauser testified that she did not hear any
noise at the time of the fall nor did claimant cry out
loudly, but she did hear claimant calling her name very
Page 4
softly. She looked out and saw claimant on the parking area
beside with the ladder laying on its side in a V position
some distance from the sidewalk. Claimant asked her to help
him up. She asked him if he was hurt. Claimant responded
that he had hurt his neck. She told him to stay there and
she would get some help (tr. pp. 142-145). Spechtenhauser
called the front desk and told them that Dan had fallen and
she needed help (tr. p. 147).
Ninneman and Salinas also came to the scene of the
accident and found claimant lying on his back on the
blacktop parking area. Neither Spechtenhauser, Ninneman nor
Salinas saw any physical signs of injury on claimant's body
nor did they find his clothing dirty or soiled. Claimant
testified that they kept the parking lot vacuumed (tr. p.
61). From the photographs a person could determine either
that his clothing would be soiled or his clothing would not
be soiled (exs. F and K).
Claimant estimated he landed eight feet from the
sidewalk (tr. p. 123). Ninneman said he measured it at
eighteen feet (ex. N). Ninneman previously had a different
opinion of what the distance might have been however (tr.
pp. 125-126). Salinas testified that the ladder was three
or four feet away from the sidewalk (tr. p. 154).
Therefore, the distance of the ladder and claimant from the
sidewalk is inconclusive.
An ambulance was called, claimant's neck was placed in
a harness or collar, his body was placed on a board, and he
was transported to Finley Hospital (tr. p. 30).
Claimant's mother testified that she was bringing his
lunch to work when Spechtenhauser told her that her son had
been injured by falling off the ladder and he was being
placed in an ambulance at that time (tr. p. 73).
The ambulance call record reported that claimant was on
a step approximately six feet above the ground when the
ladder slipped and he fell to the ground. Claimant related
that hit his head when he landed. He reported pain in the
neck area, clavicle area and rib area at T-8 on the left
side. Claimant told the paramedics he struck his head on
the ground, but they noted that there was no deformity from
it. The paramedics also noted that claimant complained of
pain in both elbows upon movement, but they noted that no
deformity or injury was observed. They recorded that
claimant denied pain in the lower extremities. The
paramedics indicated the chief complaint was head and neck
pain (ex. 3, pp. 1-2; ex. M, section B, pp. 5 & 7).
The Finley Hospital emergency room record reflects that
claimant fell approximately six to eight feet from a ladder.
He was complaining of neck, right elbow and left rib pain.
He was unsure of how he landed but states he knows he hit
his head. That record reflects that no obvious deformities
were noted. The chief complaints were "neck/shoulders" (ex.
1; ex. M, sec. B8, p. 1).
Claimant was seen at the Finley Hospital emergency room
Page 5
by A. McDermott, M.D., who noted that the patient complained
of neck, right elbow and left rib pain. Dr. McDermott
wrote, "He did bump his head...." He recorded his
diagnosis as, "Acute strain of the neck muscles. Contusion
of the right elbow and contusion of the left rib cage."
(ex. 2; ex. M, sec. B8, p. 2).
X-rays of the chest and left ribs, right elbow and
cervical spine were all negative (ex. M, sec. B8, pp. 3-4).
Dr. McDermott released claimant in apparently satisfactory
condition (ex. 1; ex. M, sec B8, p. 2); nevertheless, he
took claimant off work until May 24, 1990 (ex. M, sec. B8,
p. 6).
Claimant's personal physician, Mark Liaboe, M.D., shows
an entry for May 21, 1990, which should be May 22, 1990,
because he states claimant fell off a ladder yesterday and
landed on his back and the back of his neck on a parking
lot. Claimant continued to have complaints in the cervical
region and posterior head which were aggravated by movement.
Claimant also complained that he was nauseated and vomited
last night and today. Dr. Liaboe recorded tenderness over
the occiput and tenderness and reluctance to move the neck.
The paracervical and trapezius muscles were tender
bilaterally. Dr. Liaboe concluded, "This likely represents
cervical muscular strain and closed cranial trauma." (ex.
16, p. 2; ex. M, sec. A, p. 7).
On May 25, 1990, when claimant continued to have
persistent headache and nausea, but had not been vomiting,
Dr. Liaboe ordered a CT scan of the head which turned out
negative for fracture or blood. He still had tender
paracervical and trapezius muscles. Dr. Liaboe concluded,
"This represents a post traumatic headache syndrome." (ex.
16, p. 2; ex. M, sec. A, p. 7). Dr. Liaboe added that
claimant remained disabled as of May 25, 1990.
The doctor's office notes next reflect that on May 31,
1990, claimant's mother called that he was very ill, weak,
was complaining of severe headaches, was vomiting, had a
swollen hand, was in a lot of pain, and was sick all over.
Claimant's mother was instructed to take him to Finley
Hospital where he was admitted on May 31, 1990, through the
emergency room where it was recorded that he had vomited 15
times since the fall off the ladder, weakness, low back
pain, neck pain, and right hand pain (ex. 6; ex. M, sec. B,
p. 20).
The emergency room physician, T. Gifford, M.D., said
claimant fell six feet from a ladder on May 21, 1990, and
that both his accident injuries and his diabetes mellitus
had progressed while he was attempting to recuperate at
home. He diagnosed (1) diabetic ketoacidosis and (2)
head/neck/back pain etiology undetermined. Dr. Gifford did
note that the neck was markedly resistant to flexion because
of pain in the back of the neck and head (ex. 7, pp. 1-2;
ex. M, sec. B10, pp. 22-23).
J.P. Viner, M.D., performed an admitting examination
and determined that claimant was suffering from diabetic
Page 6
ketoacidosis and neck stiffness. Dr. Viner noted that
claimant fell from a ladder at work ten days ago as the
origin of this episode. He stated that even though claimant
had juvenile onset of diabetes mellitus, insulin requiring,
three years ago, he had been well maintained on NPH 25 units
every morning and that he had never suffered diabetic
ketoacidosis before. A cerebral spinal fluid (CFS) tap was
negative for posttraumatic meningitis (ex. 9, pp. 1-2; ex.
M, B10, pp. 6-7).
Claimant was also examined on May 31, 1990, by Patrick
Sterett, M.D., a neurologist, who stated that claimant was
admitted with severe occipital headaches and posterior
cervical neck pain after a fall of about six feet from a
ladder earlier that month. His examination demonstrated
tenderness of the occipital scalp and temporal regions
bilaterally. Dr. Sterett's first assessment was:
Post concussion syndrome. He is complaining of
some dizziness and headaches now since the fall on
the 21st of May. The headaches that he has at
present are probably post concussion headaches,
but some are probably contributed through
ligamentous and paraspinal cervical muscular
injury (sprain).
(exhibit 10, page 2; exhibit M, section B10, page 9)
X-rays of the lumbosacral spine, cervical spine and
thoracic spine on June 1, 1990, were all normal. An x-ray
of the right hand on June 1, 1990, showed a comminuted,
slightly angulated fracture of the neck of the fifth
metacarpal which was described as a boxer's fracture of the
neck of the fifth metacarpal (ex. 11; ex. M, sec. B10, pp.
15-16). An MRI of the head on June 2, 1990, was normal (ex.
M, B10, p. 18). A CT scan of the lumbosacral spine on June
5, 1990, showed a congenital spinal stenosis of the lower
lumbar spine and symmetric annular bulge of the L5-S1 disc
with narrowing of the AP dimension of the canal (ex. 12).
The discharge diagnosis was prepared by J.S. Chapman,
M.D., who noted that the intravenous dexamethasone and other
symptomatic interventions administered by Dr. Sterett had an
understandable worsening effect temporarily on claimant's
diabetes. Dr. Chapman concluded, "This appears to be a
post-concussion syndrome." (ex. 15, p. 2; ex. M, B10, p. 3).
Dr. Chapman also stated that claimant had a cervical spine
sprain, right ulnar nerve injury, fracture of the distal
fifth metacarpal, congenital stenosis of the lumbar spine,
congenital bilateral hearing loss and insulin-requiring
diabetes. Dr. Chapman recommended that claimant contact
vocational rehabilitation with regard to training for
something more compatible with his health problems (ex. 15,
p. 2; ex. M, B10, pp, 1-3).
Dr. Chapman wrote a letter to the insurance carrier on
June 15, 1990, which stated claimant fell off the stepladder
on May 21, 1990, and injured his neck, back, and fractured
the fifth metacarpal on his right hand (ex. 17; ex. M, sec.
A, p. 27).
Page 7
Wherefore, based upon the foregoing evidence, it is
determined that claimant sustained an injury to his head,
neck, right elbow, and left rib cage which arose out of and
in the course of employment with employer. These parts of
the body are determined to be injured in this accident
because claimant complained of them at or very near the time
of the injury to Karen Spechtenhauser, the ambulance
paramedics, the emergency room personnel, and Dr. McDermott.
Dr. McDermott found that claimant strained his neck muscles
and had a contusion on his right elbow and his left rib
cage. Dr. Liaboe said that claimant's symptoms represent
cervical muscular strain and closed cranial trauma. At
another point he said this represents a posttraumatic
headache syndrome. Dr. Chapman determined that claimant had
a post-concussion syndrome. Several physicians commented
that claimant was not able to move his neck normally.
It is further determined that the injury from the fall
on May 21, 1990, temporarily aggravated, accelerated,
exacerbated, and lit up claimant's diabetes mellitus II.
Claimant testified that he vomited several times after the
injury which threw off the balance between his food intake
and his insulin medication. Claimant further alleged, and
it is not unreasonable to believe, that the pain and stress
from the injury threw off his diabetes (tr. pp. 32-33).
When claimant was admitted to the emergency room on May 31,
1990, it was noted that his breath smelled fruity. Claimant
testified that it smelled sweet (tr. p. 33). Claimant
testified that this is a sign that his diabetes was reacting
to the injury. He stated that his blood tests showed that
his diabetes was uncontrolled at the time of his admission
to the hospital on May 31, 1990 (tr. pp. 33-34). Claimant
admitted that he threw up the day before the accident from
food poisoning but denied it was on account of his diabetes
(tr. pp. 48-50). Claimant testified that the injury put him
under great pressure and stress and caused his diabetes to
go out of control (tr. p. 59).
Shirley Jones, claimant's mother, testified that she
and her husband, claimant's father, kept a constant vigil
over claimant as they were instructed to do by the doctors
to make sure that he would awake on voice command because of
the suspected head concussion. Jones testified that
claimant became progressively worse because he ate very
little and what he did eat, he threw up. The doctor
eventually directed her to bring him to the hospital on May
31, 1990 (tr. pp. 76-77). She said he was not covering his
insulin, which means he was not receiving 3200 calories from
food to cover the amount of insulin he was taking. Orange
juice was the only food which he could keep down. Every
time he took solid food, he threw it back up (tr. 77). When
he arrived at the hospital, it was found that his blood
sugar was way out of proportion and they injected him with
whole insulin (tr. p. 78). Likewise, his hand was swollen
(tr. p. 78). His elbow was injured and he was unable to
straighten his arm out (tr. p. 79). Mrs. Jones added that
claimant has had trouble with his hands ever since he was a
child with what doctors described as boxer type of injuries
which were due to fragile bones because he never drank milk
Page 8
until he had diabetes which left his body calcium deprived
(tr. p. 81).
The deputy saw and heard the witnesses, claimant and
his mother, and it is determined that their testimony on
these points is credible.
Dr. Gifford, on May 31, 1990, began with the history of
claimant's fall from the ladder and traced how claimant's
condition had become progressively worse both with respect
to the traumatic injuries and the nausea and vomiting (ex.
7; ex. M, B10, p. 22).
Dr. Viner, on May 31, 1990, stated that although
claimant had juvenile onset diabetes mellitus, insulin
requiring, three years ago, he had never before experienced
diabetic ketoacidosis (ex. 9; ex. M, B10, p. 6).
Dr. Chapman stated that the intravenous dexamethasone
and other symptomatic interventions administered by Dr.
Sterett temporarily worsened claimant's diabetes while in
the hospital after May 31, 1990 (ex. 15; ex. M, B10, p. 2).
The question of causal connection is essentially within
the domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered
with all other evidence bearing on the causal connection.
Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73
N.W.2d 732 (1955).
The testimony of claimant and his mother coupled with
the testimony of Dr. Viner, Dr. Gifford and Dr. Chapman
establishes that claimant's hospitalization for both his
traumatic injuries as well as his ketoacidosis arose out of
and in the course of his employment with employer and the
fall injury which occurred on May 21, 1990.
Defendant presented with no evidence that the diabetes
mellitus was not aggravated, accelerated, exacerbated, or
lighted up due to the traumatic injury. Defendant did not
introduce any evidence to dispute that the subsequent
hospitalization of May 31, 1990, for both his traumatic
injuries and his ketoacidosis arose out of and in the course
of employment with employer.
Defendant generated no independent medical evidence.
Wherefore, it is determined that the incident of
falling off the ladder on May 21, 1990, was the cause of a
temporary aggravation injury of claimant's preexisting
diabetes mellitus as well as his traumatic injuries to his
head, neck, right elbow, and left rib cage.
Claimant did not prove that he sustained a back injury
from this fall. He did not indicate that he had any back
pains to any of the persons who came to the scene of the
accident. He did not mention back pains or lower extremity
difficulties to the paramedics, but on the contrary, they
Page 9
indicated his lumbosacral spine and lower extremities had no
problems. Claimant voiced no complaints about his back to
Dr. McDermott in the emergency room. Claimant did not
complain about any back symptoms to Dr. Liaboe. Claimant
has had back problems in the past when he fell 14 feet from
a ladder while working for another employer. Dr. Chapman
found that the lumbar spinal stenosis was congenital.
Wherefore, it is determined that claimant did not
sustain an injury from the fall from the ladder on May 21,
1990, to his back or lumbosacral spine which arose out of
and in the course of employment with employer.
It is determined that claimant sustained an injury to
his right hand because he testified that he fell on his
right hand (tr. p. 59). Claimant's mother testified he
injured his hand in this accident. When he went to the
hospital on May 31, 1990, his mother and the medical records
verified that his right hand was swollen. Therefore, it is
determined that claimant sustained an injury to his right
hand, however, the comminuted, slightly angulated fracture
to the neck of the fifth metacarpal is not new (ex. 11; ex.
M, B10, p. 16) for the reason that back on October 16, 1980,
claimant injured his right hand when he was 13 years old.
Claimant denied that he had had any previous injury to his
little finger, but this statement is not correct (tr. p.
39). His physical examination in 1980 showed mild swelling
over the distal end of the fifth and fourth metacarpals.
There was marked tenderness over the fifth metacarpal. The
x-rays showed a nondisplaced buckle-type fracture of the
distal shaft of the fifth metacarpal with approximately 20
degrees of angulation. R. Koehler, M.D., said at that time
that claimant did not have a full range of motion including
full extension in the MP joint of that fifth finger due to
fifth metacarpal minimal displacement (ex. M, B3, p. 1).
The radiologist reported, "RIGHT HAND: There is a minor
deformity of the fifth metacarpal with slight anterior
angulation of the distal end." (ex. M, B3, p. 2).
Defendant maintained that claimant injured his hand in
fights in the past and within 30 days of the injury, however
failed to prove it. First of all, Kramer and Gibson
testified that claimant did not engage in a physical fight
on Saturday night, May 19, 1990, when they were drinking in
Dubuque. Kramer did testify that claimant had a physical
encounter within 30 days prior to this injury, but there is
no medical evidence or other evidence to indicate that
claimant injured his hand or hands in the altercation which
occurred (tr. p. 112-113). He was able to work and employer
did not testify to any noticeable hand injury problem prior
to this injury.
CAUSAL CONNECTION-ENTITLEMENT-TEMPORARY disability
It is determined that the injury of the fall from the
ladder on May 21, 1990, was the cause of temporary
disability and that claimant is entitled to 6.571 weeks of
temporary total disability benefits beginning on the date of
the injury, May 21, 1990, to July 6, 1990.
Page 10
Claimant testified that he was taken off work on May
21, 1990 (tr. p. 31). The record shows that Dr. Matthews
took claimant off work on that date (ex. N, Bi, p. 6). Dr.
Liaboe continued to keep claimant off work on rest on May 22
and 25, 1990 (ex. 16, pp. 1-2; ex. M, A, p. 7). Dr. Chapman
said he was still off work on June 15, 1990 (ex. 17, p. 1;
ex. M, A, p. 27).
On July 6, 1990, Dr. Chapman noted that claimant was
improving and had a good range of motion of his head and
spine. The only medication prescribed was Tylenol (ex. 16,
p. 4; ex. M, A, p. 9). After that, claimant complained
about his back and his finger, but his head and neck
remained better as well as his diabetes and therefore, it is
determined that claimant could return to substantially
similar employment in which the employee was engaged at the
time of the injury on July 6, 1990. Iowa Code section
85.33(1).
causal connection-entitlement-permanent disability
It is determined that claimant did not sustain a
permanent impairment or any permanent disability as a result
of the fall from the ladder on May 19, 1990, to either his
head, neck, right elbow, left rib cage, right hand, or to
his diabetes mellitus.
Claimant did not introduce any medical evidence or any
other evidence of permanent impairment ratings or
restrictions as a result of any of these injuries. Nor did
claimant testify that he was permanently injured in any
manner.
medical benefits
It is determined that claimant is entitled to all of
the medical benefits alleged in exhibit 18, which total
$8,857.25. He would also be entitled to medical mileage for
this treatment.
attorney's fees
It is determined that this is an appropriate case for
an award of attorney's fees based on the recovery of medical
benefits.
It is not the policy of the industrial commissioner to
award attorney's fees on medical benefits, except under
compelling circumstances, such as here where medical
benefits are the primary issue before the commissioner and
where claimant's counsel might not otherwise receive a fair
and reasonable fee for representing claimant. It is true
that there was a small award in this case of $845.95 for
temporary total disability benefits, however, the fee on
that amount would not be an adequate or reasonable
inducement for an attorney to represent a claimant through
the hearing process, the hearing and the posthearing briefs
on a highly controverted case which was denied at the outset
Page 11
and fiercely opposed by employer. The chance for recovery
was speculative and the attorney's fee on $845.95 would not
constitute reasonable compensation for the attorney to
accept and work on the case. Wherefore, it is determined
that claimant's attorneys are entitled to a fee of one-third
of the medical recovery which is to be subtracted from each
of the medical providers to which money is owed. Rambousek
v. Hy-vee Food Store, Inc., file number 868336 (July 23,
1991).
It may seem unjust to the providers of medical services
that they are only receiving two-thirds of their fees as a
result of this award; however, it should be remembered that
if claimant had not been represented by these attorneys they
might have received nothing. They had received nothing at
the time of the hearing and the prospect of them being paid
looked very dim at best. Claimant will still owe the unpaid
balance of these bills.
penalty benefits
It is determined that claimant is not entitled to
penalty benefits under Iowa Code section 86.13(4).
Defendant employer had reasonable grounds to suspect that an
injury was feigned under the highly controversial evidence
in this case.
Wherefore, it is determined that employer had
reasonable and probable cause or excuse to deny benefits to
this claimant under these circumstances.
conclusions of law
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
That claimant sustained the burden of proof by a
preponderance of the evidence that he sustained an injury on
May 21, 1990, to his head, neck, right elbow, left rib cage,
right hand, and an aggravation of his diabetes mellitus when
he fell off of a ladder which arose out of and in the course
of employment with employer. Iowa Code section 85.3(1);
McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa
1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154
N.W.2d 128 (1967).
That claimant sustained the burden of proof by a
preponderance of the evidence that the injury caused him to
be temporarily totally disabled from the date of the injury,
May 21, 1990, to the point at which he was able to return to
substantially similar employment on July 6, 1990. Bodish v.
Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl
v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
That claimant is entitled to 6.571 weeks of temporary
total disability benefits for the foregoing period of time.
Page 12
Iowa Code section 85.33(1).
That claimant is entitled to medical benefits in the
amount of $8,857.25. Iowa Code section 85.27.
That claimant has sustained the burden of proof by a
preponderance of the evidence that he is entitled to an
attorney's fee on the medical benefits as well as the weekly
benefits. Iowa Code section 85.39.
That claimant did not sustain the burden of proof by a
preponderance of the evidence that he was denied benefits
without reasonable or probable cause of excuse. Iowa Code
section 86.13(4).
order
THEREFORE, IT IS ORDERED:
That defendant employer pay to claimant six point five
seven one (6.571) weeks of temporary total disability
benefits at the rate of one hundred twenty-eight and 74/100
dollars ($128.74) per week in the total amount of eight
hundred forty-five and 95/100 dollars ($845.95) commencing
on May 21, 1990.
That interest will accrue pursuant to Iowa Code section
85.30.
That these benefits are to be paid in a lump sum.
That defendant employer pay to claimant's attorneys
one-third (1/3) of the charge of each of the medical
providers shown in exhibit 18 in the total amount of two
thousand nine hundred fifty-two and 42/100 dollars
($2,952.42).
That defendant is to pay to the providers of medical
services two-thirds (2/3) of their respective fees which
represents the remaining five thousand nine hundred four and
83/100 dollars ($5,904.83) in unpaid medical expenses.
That no amounts are owed to claimant for penalty
benefits.
That the costs of this action, including the cost of
the attendance of the court reporter at hearing and the cost
of the transcript of hearing, are charged to defendant
employer pursuant to rule 343 IAC 4.33, Iowa Code section
86.19(1) and Iowa Code section 86.40.
That defendant file claim activity reports as required
by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of May, 1992.
______________________________
Page 13
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Steven G. Klesner
Mr. James Heckmann
Attorneys at Law
One CyCare Center, STE 216
Dubuque, Iowa 52001
Mr. Jay P. Roberts
Attorney at Law
620 Lafayette St
PO Box 178
Waterloo, Iowa 50704
Page 1
51106 51108.50 51401 51402.20
51402.30 52900 51801 1402.40
51803 51402.40 51402.60 52501
52700 54000.20 1000
Filed May 28, 1992
Walter R. McManus, Jr.
before the iowa industrial
commissioner
____________________________________________________________
:
DANIEL J JONES, :
:
Claimant, : File No. 946085
:
vs. :
: A R B I T R A T I O N
HOLIDAY INN, :
: D E C I S I O N
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
51106 51108.50 51401 51402.20 51402.30 52900
It was determined that claimant sustained a traumatic injury
and an exacerbation of his diabetes mellitus II arising out
of and in the course of employment. Defendant contended
claimant faked the injury because of a dispute(s) claimant
and employer was having. Traumatic injury was to certain
parts of the body and not others.
51801 1402.40
It was determined that claimant was entitled to temporary
total disability from the date of injury to the first date
that it could be determined that he could return to
substantially similar work.
51803 51402.40
It was determined that claimant did not sustain any
permanent disability.
51402.60 52501 52700
It was determined claimant was entitled to medical benefits.
54000.2
It was determined that claimant was not entitled to penalty
benefits.
1000
Page 2
It was determined that claimant's attorneys were entitled to
fees based on the medical recovery for the reason that
otherwise there was no inducement for an attorney to
represent claimant and receive a fair and reasonable fee.
Defendant was ordered to pay one-third of the medical
providers' fees to claimant's attorneys and two-thirds to
the medical providers. Claimant still owed the medical
providers for the balance.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
HERMAN A. ANDERSON,
Claimant,
vs.
File No. 946114
IOWA DEPARTMENT OF
TRANSPORTATION,
A P P E A L
Employer,
D E C I S I O N
and
STATE OF IOWA,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the deputy
and all exhibits admitted into the record, has been reviewed de novo on
appeal. The decision of the deputy filed October 19, 1994 is affirmed
and is adopted as the final agency action in this case.
Claimant shall pay the costs of the appeal, including the preparation
of the hearing transcript.
Signed and filed this ____ day of June, 1995.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. David C. Skilling
Attorney at Law
9 East State St.
Algona, Iowa 50511
Ms. Julie Burger
Ms. Kerry Anderson
Assistant Attorney General
Iowa Dept of Transportation
800 Lincoln Way
Ames, Iowa 50010
5-2904
Filed June 26, 1995
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
HERMAN A. ANDERSON,
Claimant,
vs.
File No. 946114
IOWA DEPARTMENT OF
TRANSPORTATION,
A P P E A L
Employer,
D E C I S I O N
and
STATE OF IOWA,
Insurance Carrier,
Defendants.
_________________________________________________________________
5-2904
Claimant failed to prove that his change of condition was not
discoverable through the exercise of reasonable diligence at the time
he originally settled the case. The claim for review-reopening is
denied.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
HERMAN A. ANDERSON, :
:
Claimant, :
:
vs. :
: File No. 946114
DEPARTMENT OF TRANSPORTATION, :
:
Employer, : C O M M U T A T I O N
:
and : D E C I S I O N
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
This is a proceeding involving a petition for
commutation of all remaining benefits brought by claimant
against his employer on December 16, 1991. A settlement
agreement was filed by the parties on October 18, 1991.
This was approved. Claimant seeks a full commutation of the
remaining benefits amounting to $93,778.14 commuted to a
value of $67,973.15. This matter was submitted to the
undersigned on a "stipulated" record submitted by the
parties.
issue
The sole issue to be determined is whether it is in the
claimant's best interest to fully commute the remaining
amount under a settlement order which would result in a
commuted value sum of $67,973.15.
findings of fact
The undersigned deputy, having considered all the
evidence consisting of certain pleadings and resistances
filed by the parties which the parties have referred to as
their "stipulation," the undersigned finds as follows:
The undersigned finds the parties' stipulation of the
record to be unusual in that it is different than what is
usually done on the presentation of a stipulated record for
consideration by a deputy. Basically, we have the petition
for full commutation filed by the claimant on December 16,
1991 in which the claimant sets out his reasons and
itemization of expenses, etc., and claimant's statement of
case and argument filed January 17, 1992. The defendants
filed a resistance to the petition for commutation on
December 20, 1991, indicating it was not in the best
interest of the claimant but waives hearing. On December
26, 1991, claimant filed a rebuttal to defendants'
resistance to the petition for commutation setting forth his
Page 2
reasons therefor. On February 5, 1992, the employer filed a
stipulation of the employer to submission of commutation
based on the pleadings indicating that the only remaining
issue is the appropriateness of the commuting of the
remaining benefits. It is this scenario of documents filed
that the parties have considered as a stipulation of the
record for the undersigned to consider. The undersigned
might add that the total information submitted is not as
adequate as it should be in trying to fully determine the
issue herein, but the undersigned must rely not only on what
has been submitted but is also taking official notice of the
entire file in order to aid in the writing of this decision.
Claimant alleges in his petition that he is requesting
full commutation of unpaid benefits because he has no funds
in his bank account and he owes his attorney $25,000 plus
costs which the attorney has advanced including medical
reports, all of which claimant has been unable to pay. He
also set out other expenses which includes an $18,904.12
balance on the first mortgage on his home and other loans
that appear to be unsecured, amounting to approximately
$7,500 and other unpaid bills amounting to $1,600, all
totaling $27,985.77 plus $25,000 in attorney fees, all as
per his petition. In claimant's statement of case filed
January 17, 1992, these figures are changed to $18,904.12,
$6,500 and $25,000, respectively.
Claimant also sets out in his petition his current
monthly expenses which he said amounts to $1,598.53. These
were later modified in his statement of his case to $710.
His monthly workers' compensation income is $1,059.64.
Claimant contends that by paying off his debt he could
decrease his monthly payments and get along by investing the
balance of the fund which appears to be approximately
$17,614.00. Claimant indicates that he has $1,054.46
monthly long-term disability payments that would be paid
after weekly workers' compensation payments were paid
herein. There is no evidence as to the particulars of this
long-term disability, the length of time in which he would
receive it and all the particulars under which he would
receive it. It appears the long-term disability payments
would not begin for approximately six years (see claimant's
rebuttal to defendants' resistance to petition).
There is no evidence that claimant realizes that if
this commutation was in fact approved that he would no
longer have the rights for review-reopening nor any future
medical paid. Claimant does indicate that being a veteran
he would be entitled to VA benefits for his (other) medical
problems. The record, particularly referring to the
settlement papers, shows that claimant has considerable
medical problems. In the settlement, the defendants agree
to pay all of claimant's authorized medical expenses under
Iowa Code section 85.27 for treatment to cure or relieve the
effects of the work-related injury to his back and the
resultant psychological and psychiatric condition. In
looking at the exhibits attached to the settlement papers,
Page 3
the claimant has severe medical problems. The records also
indicate that claimant has a diagnosis of anxiety disorder,
NOS, alcohol abuse and remission, generalizing anxiety
disorder. The medical record indicates that claimant is not
capable of carrying out gainful employment requiring
lifting, bending, shoveling, stooping, and it would not be
recommended that he sit or stand for more than thirty
minutes and that he in general avoid sitting positions for
any form of work. There are lifting restrictions which
restrict him from lifting as little as five to ten pounds on
a regular basis. Another record restricts him from lifting
no more than ten pounds at a time, etc. Another record
indicates that the doctor's opinion is that claimant is not
capable of performing work for which he has been educated,
trained or had experience in the past.
The parties agreed in this compromised settlement that
claimant had an 85 percent functional impairment to his body
as a whole and agreed that he had an 85 percent industrial
disability. In looking at the total record, it seems very
probable that this claimant would have a very good chance of
a review-reopening in the future which right would be cut
off by the granting of this petition for full commutation.
Economic changes from the time of the settlement is an
element that can be considered in review-reopening. Looking
at the facts of this case, there is great probability that
there would be a review-reopening of this matter and that
such right should not be cut off under the circumstances of
this case.
Claimant has an alcoholic problem in remission. He
alleges that until this matter is being settled as he
desires and proposes, that this is pressure on his overall
psychological situation. The undersigned believes in
looking at the entire file that these pressures will still
be on the claimant and in fact if this commutation was
allowed, the claimant could probably be in a serious
situation within three years and would most likely have used
up a good portion of his funds he intends to invest. There
is no assurance that with claimant's situation that there
would not be a sudden invasion of these available funds that
he intends to invest to thwart his attempt to stay in
alcohol remission. This temptation would be there
particularly since claimant's medical problems would not go
away. Claimant still has many pressures in his life that
resulted from the injury itself that apparently need
additional treatment, and even with treatment would not
necessarily be cured. The interest figure that claimant
sets out that he could earn on his funds is not logical in
today's market and if he intends to have the funds available
for use to supplement his monthly support, he would not be
able to put these funds on any long-term CD investment and
therefore the rate of return would be substantially less
than he would anticipate, adding more to his economic
problems.
It seems in the best interest of the claimant to have a
Page 4
steady income over a period of time and not have these funds
commuted. Claimant refers to a long-term disability policy,
the particulars of which are not set out. The undersigned
does not know what events trigger the same and why they
would not begin immediately rather than in the six years
referred to in claimant's rebuttal to defendants' resistance
to the petition for commutation. The undersigned can only
surmise that this six years comes into play because under
the petition for commutation, the remaining 354 weeks would
amount to approximately 6 2/3 years if they were paid out in
the normal sequence at $264.91 per week.
Claimant sets out other ways that he can either
supplement his income or reduce his expenses. There is no
indication that he has applied for or his ability to get
social security benefits, but in looking at the record it
looks like this may be a source that should be applied for,
unless he has not been timely in his action, in which he
could be supplementing his monthly income. The undersigned
feels it would not be in claimant's best interest at this
time to commute these benefits, particularly under the
status of the current record.
Even though defendants are resisting this petition for
commutation, the undersigned feels that under the total
circumstances of this case they have not given up much and
that there has not been any additional incentives in light
of additional monies that would warrant the claimant giving
up the valuable rights he now has, particularly in the
nature of medical benefits and the right to
review-reopening. The undersigned finds, as indicated
earlier, that the right for review-reopening under the facts
of this case is a valuable asset to the claimant for which
defendants are obviously making no concessions but would
reap potential benefits by those rights being cut off.
Although the records submitted by the parties do not
indicate the age of this claimant, the undersigned is only
able to tell claimant's age by looking at the first report
of injury which would indicate he would be approximately 43
years of age. If, in a review-reopening, claimant was
ultimately determined to be totally disabled, he would have
at 43 a life expectancy of in excess of 31 years and would
be receiving payments for the rest of his life. This would
amount to over 1,600 weeks of disability benefits. The
undersigned does not believe the defendants are paying for
the potential exposure that they have in looking at the
evidence and settlement papers, etc., herein.
In claimant's proposals, he is desiring to pay off his
entire home mortgage. The reason for this is not clear. It
appears the other loans are unsecured. It doesn't appear
the claimant is working or hasn't worked since August of
1990. Again, the evidence is very insufficient in this
area. There is no way the undersigned can imagine that
those individuals owed money can collect under the
circumstances herein if claimant cannot pay them,
particularly on a timely basis and, therefore, it would seem
Page 5
that arrangements could be made with those creditors. It
appears claimant can adjust some of the other items that he
set out therein. The undersigned fully realizes that the
attorney should be paid and is entitled to payment, but,
likewise, under the law the undersigned must rule what is
best for the claimant. The worry of paying bills is upon
everyone's mind and there is no indication that this will
not be a worry to this claimant even though maybe to a
lesser degree regardless of this decision herein.
This petition for commutation was filed so soon after
the settlement papers that this also concerns the
undersigned as to what might have went into the overall
ultimate resolution in the settlement and the attempt to
resolve this matter in full at this time.
There is no indication of any chance of employability
of this claimant. At least there is no evidence that
claimant is able to get a job, therefore, helping to
supplement his overall monthly income. It would appear that
this claimant is basically relying upon his workers'
compensation benefits and in six years his long-term
disability benefits.
In reviewing this case, it is the determination of the
undersigned that it is not in claimant's best interest to
commute the benefits which the claimant is entitled to
herein. To do so would be under the status of the record
and the file herein an injustice to the claimant and could
result in an overwhelming windfall to defendants. The fact
that any commutation would cut off any future medical and
the right to review-reopening would be a tremendous
injustice to this claimant and a waiving of a very valuable
right. The probability of claimant using and needing this
right are overwhelming based on the evidence including the
contents of the claimant's file herein. The undersigned
questions as to whether the claimant really understands the
full impact of his petition and whether the overwhelming
influence to take this action is the result of the attorney
desiring to be paid. Claimant should make a concerted
effort within the parameters of the facts herein and the
funds available to make weekly payments to the attorney
toward his attorney fees.
conclusions of law
Section 85.45 of the Iowa Code provides in relevant
part:
Future payments of compensation may be commuted
to a present worth lump sum payment on the
follo). infra.
order
THEREFORE, it is ordered:
The petition for commutation for all remaining benefits
and order for lump sum payment is hereby denied.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
Signed and filed this ____ day of April, 1992.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr William J McNertney
Attorney at Law
P O Box 10
Bancroft IA 50517
Mr Robert P Ewald
Assistant Attorney General/DOT
800 Lincoln Way
Ames, Iowa 50010
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
HERMAN A ANDERSON, :
:
Claimant, :
:
vs. :
: File No. 946114
IOWA DEPT OF TRANSPORTATION
R E V I E W - R E O P E N I N G
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in review-reopening from the
agreement for settlement filed October 18, 1991 and approved
on November 18, 1991, under which claimant received
compensation for 85 percent permanent partial disability.
Claimant contends that he is now permanently and totally
disabled.
The principal issue for determination is whether there
has been a change of condition which warrants
reconsideration of the claimant's degree of disability. In
the event that permanent total disability is awarded, there
is an issue with regard to the manner in which the funds
paid under a partial commutation which was previously
granted should be offset against the permanent total
disability compensation.
The case was heard at Storm Lake, Iowa on July 12,
1994. The evidence consists of testimony from Herman A.
Anderson, Claimant's exhibits A, B and C and defendants'
exhibits 1 through 8. Official notice is taken of the
documents in the agency file associated with the agreement
for settlement. Official notice is also taken of the
documents in the agency file associated with the partial
commutation.
FINDINGS OF FACT
When the agreement for settlement was entered into,
D.E. Fisher, M.D., claimant's treating orthopedic surgeon,
reported, "It is my opinion that this man is not capable of
performing work for which he has been educated, trained or
had experience in the past." Michael J. Makowsky, M.D.,
Page 2
reported that claimant was limited to sedentary work and
recommended restrictions including no lifting of more than
ten pounds, that any lifting should be performed only
occasionally, that he be allowed to sit or stand as his
comfort level would tolerate and that he avoid repetitive
bending at the waist. A report from psychologist Dianne
Alber, Ed.D., noted that claimant was seeing a psychiatrist
on a regular basis. Jeffrey A. Jackson, M.D., had diagnosed
claimant as having an anxiety disorder.
Since the settlement, Dr. Fisher has changed his
opinion regarding claimant's employability in that he now
considers claimant incapable of all forms of employment.
(Exhibit 8, pages 9 and 10) Dr. Fisher indicated that
claimant's permanent impairment has likewise increased.
(Ex. 8, pp. 21 and 26) Dr. Fisher has indicated that
claimant's condition has been deteriorating since 1988 and
that the deterioration has continued since 1991. Dr. Fisher
stated that claimant is unquestionably worse now than he was
in 1990 or 1991. (Ex. 8, pp. 28, 29 and 34) Dr. Fisher
also stated that in 1991 he anticipated that claimant's
condition would deteriorate and he now expects it to
continue to deteriorate into the future. (Ex. 8, p. 37) At
one point Dr. Fisher stated that in 1991 he had hoped that
claimant would improve but that no improvement occurred.
(Ex. 8, p. 11)
Claimant testified at hearing that his condition has
worsened and that it continues to worsen. He walks with a
cane as he did at the time the settlement was enacted.
Claimant stated at hearing that when the case was settled in
1991 he expected to work again. He felt that he could
recuperate and retrain. When questioned regarding what jobs
he felt he could have been capable of doing, he gave no
answer. Claimant stated that in comparison to his condition
at the time of the settlement, he is now unable to do half
of what he could do then. He stated that his pain is worse.
On a scale of one to ten he stated that his pain at the time
of the settlement was an eight but that it is presently at
eleven.
It is found that claimant's overall physical condition
has deteriorated since the settlement was entered into. It
is found that the deterioration has not had an appreciable
effect upon his ability to be employed. It is found that
the deterioration was expected to occur by the claimant's
principal treating physician. Claimant was unemployed with
no prospect of obtaining employment at the time the case was
settled and he remained similarly unemployed at the time of
the review-reopening hearing.
CONCLUSIONS OF LAW
Upon review-reopening, claimant has the burden to show
a change in condition related to the original injury since
the original award or settlement was made. The change may
be either economic or physical. Blacksmith v. All-American,
Inc., 290 N.W.2d 348 (Iowa 1980); Henderson v. Iles, 250
Iowa 787, 96 N.W.2d 321 (1959). A mere difference of
Page 3
opinion of experts as to the percentage of disability
arising from an original injury is not sufficient to justify
a different determination on a petition for
review-reopening. Rather, claimant's condition must have
worsened or deteriorated in a manner not contemplated at the
time of the initial award or settlement before an award on
review-reopening is appropriate. Bousfield v. Sisters of
Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). A failure of a
condition to improve to the extent anticipated originally
may also constitute a change of condition. Meyers v.
Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa Ct.
App. 1978).
Claimant's testimony that his condition has worsened is
corroborated by evidence from Dr. Fisher. The evidence from
Dr. Fisher, however, indicates that the deterioration was
not unexpected and that further deterioration is expected.
Claimant might not have been aware of that prognosis in 1991
when he entered into the settlement of this case, but there
is nothing in the record which would indicate that Dr.
Fisher's assessment or prognosis would not have been
available to the claimant through the exercise of reasonable
diligence. In this case, reasonable diligence would have
consisted of merely asking Dr. Fisher to provide his
prognosis. While there may have been hope that claimant
would improve there is nothing in the record which shows
that improvement was actually expected to occur in the sense
of improvement being a probability, rather than merely an
optimistic possibility. Physicians and patients often hope
for improvement, even when the likelihood of improvement is
remote.
Claimant's impairment rating may have changed and his
physical capabilities may have deteriorated. He has some
ailments which appear to have had their onset since the
settlement. There is no showing, however, that the new
ailments were proximately caused by the original injury.
Dever v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969);
Wagner v. Otis Radio & Electric Co., 254 Iowa 990, 119
N.W.2d 751 (1963) Claimant has emotional problems but it
appears that he had those same emotional problems at the
time of the settlement.
In Gosek v. Garmer and Stiles Co., 158 N.W.2d 731, 735
(Iowa 1968) the Iowa Supreme Court stated:
Cause for allowance of additional compensation
exists on proper showing that facts relative to an
employment-connected injury existed but were
unknown and could not have been discovered in the
exercise of reasonable diligence, sometimes
referred to as a substantive omission due to
mistake, at time of any prior settlement or award.
(emphasis added)
That pronouncement sets the standard for what an
employee must prove when he seeks review-reopening. He must
not only prove by a preponderance of the evidence that a
change has occurred but he must also prove that the change
Page 4
was not anticipated or discoverable in the exercise of
reasonable diligence at the time of the prior settlement or
award. It is concluded that Herman A. Anderson has failed
to prove that the deterioration of his condition was not
discoverable through the exercise of reasonable diligence at
the time when he entered into the agreement for settlement
in 1991. To the contrary, it appears that the deterioration
was expected and that claimant could have readily known that
it was expected if he had merely asked his principal
treating physician for a prognosis.
When viewed as a whole, the record of this case fails
to show that this claimant is substantially less employable
now then he was when he entered into the agreement for
settlement in 1991.
ORDER
IT IS THEREFORE ORDERED that the claimant's claim for
review-reopening is denied.
It is further ordered that the costs of this action are
assessed against the claimant pursuant to rule 343 IAC 4.33.
Signed and filed this __________ day of October, 1994.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
William J. McNertney
Attorney at Law
9 E State St
Algona, Iowa 50511
Julie Berger
Kerry Anderson
Assistant Attorneys General
Iowa Department of Transportation
General Counsel Division
800 Lincoln Way
Ames, Iowa 50010
3303.10
Filed April 2, 1992
Bernard J. O'Malley
before the iowa industrial commissioner
____________________________________________________________
:
HERMAN A. ANDERSON, :
:
Claimant, :
:
vs. :
: File No. 946114
DEPARTMENT OF TRANSPORTATION, :
:
Employer, : C O M M U T A T I O N
:
and : D E C I S I O N
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
3303.10
Petition for full commutation denied. Settlement agreement
was filed October 18, 1991 and petition for full commutation
was filed December 16, 1991. The settlement provided
claimant was 85% body as a whole functionally impaired and
was 85% industrially disabled. Defendants, who resisted
commutation, was giving nothing extra for the cutting off of
claimant's right for review-reopening or future medical.
Claimant had work injury to his back and resulting
psychological and psychiatric conditions and diagnosis of
anxiety disorder, NOS, alcohol abuse in remission,
generalizing anxiety disorder. Deputy held that if
commutation was approved, this would be injustice to
claimant by cutting of valuable rights that claimant would
probably be needing within the next three years.
Deputy indicated that attorney needed to be paid the fees to
which he is entitled ($25,000 out of the $68,000 commuted
value), but it appears this fact and influence may have had
overwhelming influence to convince claimant to take this
action and that claimant may not realize the full impact of
his action and the valuable rights he would give up.
2909
Filed March 17, 1993
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
HERMAN A. ANDERSON, :
: File No. 946114
Claimant, :
:
vs. : MEMORANDOM OF
:
IOWA DEPARTMENT OF : DECISION ON
TRANSPORTATION, :
: EXPEDITED
Employer, :
: HEARING
and :
: PETITION
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
Deputy allowed a partial commutation of benefits in order to
pay claimant's attorney fees. Decision dictated on the
record.
52904
Filed October 19, 1994
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
HERMAN A ANDERSON,
Claimant,
vs.
File No. 946114
IOWA DEPT OF TRANSPORTATION
R E V I E W -
R E O P E N I N G
Employer,
D E C I S I O N
and
STATE OF IOWA,
Insurance Carrier,
Defendants.
------------------------------------------------------------
52904
Claimant failed to prove that his change of condition was
not discoverable through the exercise of reasonable
diligence at the time he originally settled the case. The
claim for review-reopening is denied.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
HERMAN A. ANDERSON, :
: File No. 946114
Claimant, :
:
vs. : MEMORANDOM OF
:
IOWA DEPARTMENT OF : DECISION ON
TRANSPORTATION, :
: EXPEDITED
Employer, :
: HEARING
and :
: PETITION
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
An original notice and petition was filed on April 20, 1992
under rule 343 IAC 4.48. February 18, 1993 was the date set for
a telephonic hearing. All parties were given proper notice.
This expedited hearing petition was filed because the
claimant desired a partial commutation. The entire hearings were
recorded via an audio tape. The undersigned made a partial
ruling on the record on February 18, 1993 finding there would be
a partial commutation. The hearing was continued to March 16,
1993, 9:00 a.m., to allow the parties to agree on a correct
commutated value factor and number of weeks needed to be commuted
to arrive at a $20,000 figure. The parties agreed.
The undersigned further found on March 16, 1993, that the
figure agreed to by the parties is correct and there shall be a
partial commutation reflecting those figures. The detailed
decisions were dictated into the record on the day of the
hearings and will not be reproduced in typewritten form unless
there is an appeal by the parties at which time the procedures
under the administrative code are to be followed. Any rights of
appeal will run from the date of the last decision dictated into
the record, namely, March 16, 1993, and this memorandum is solely
for the purpose of the agency file.
The deputy ordered that claimant's petition for partial
commutation is approved as amended. The final decision was
rendered on March 16, 1993.
Signed and filed this ____ day of March, 1993.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Page 2
Copies to:
Mr William J McNertney
Attorney at Law
9 E State St
Algona IA 50511
Mr Stephen E Reno
Mr Robert Ewald
Assistant Attorneys General
Tort Claims Division
Hoover State Office Bldg
Des Moines IA 50319
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DENNIS J. BLANCHARD,
Claimant,
File Nos. 1044754
vs. 1012695
946316
ESSTAR, INC./CURRIES COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
TRAVELERS INSURANCE COMPANIES,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This is a consolidated proceeding in arbitration brought by
Dennis Blanchard, claimant, against Esstar Inc./Curries Company,
employer, hereinafter referred to as Curries, and Travelers
Insurance Company, defendants, for workers' compensation benefits
as a result of alleged injuries on April 4, 1990, March 2, 1992
and June 25, 1992. On December 15, 1994, a hearing was held on
claimant's petitions and the matter was considered fully submitted
at the close of this hearing.
The parties have submitted a hearing report of contested
issues and stipulations which was approved and accepted as a part
of the record of this case at the time of hearing. The oral
testimony and written exhibits received during the hearing are set
forth in the hearing transcript.
According to the hearing report, the parties have stipulated
to the following matters:
1. An employee-employer relationship existed between
claimant and Curries at the time of the alleged injury.
2. Claimant is not seeking additional temporary total or
healing period benefits at this time.
3. If the injury is found to have caused permanent
disability, the type of disability is an industrial disability to
the body as a whole.
4. If permanent partial disability benefits are awarded,
they shall begin as of January 18, 1993.
5. At the time of the injuries claimant's gross rate of
weekly compensation was $447.00 in 1990 and $483.00 in 1992; he
was married; and, he was entitled to five exemptions. Therefore,
claimant's weekly rate of compensation is $292.66 for an injury in
April 1990 and $314.78 for injury in either March or June 1992
according to the Industrial Commissioner's published rate
booklets.
6. Medical benefits are not in dispute.
ISSUES
The parties submitted the following issues for determination
in this proceeding:
I. Whether claimant received injuries arising out of and
in the course of employment;
II. Whether claimant gave sufficient notice of injuries
pursuant to Iowa Code section 85.23; and,
III. The extent of claimant's entitlement to permanent
disability benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as follows:
A credibility finding is necessary to this decision as
defendants placed claimant's credibility at issue during cross-
examination as to the nature and extent of the injury and
disability. From his demeanor while testifying, claimant is found
credible.
Claimant has worked for Curries for over 17 years and
continues to do so at the present time. For over 11 years, he
worked as a production welder, but since 1988 he has been
performing the job of steel bay operator. This operator job
involves unloading steel door frames from trucks, stacking steel,
parts setup and junking. Most of the heavy work is done with an
overhead crane. However, on occasion, claimant is asked to hand
carry steel. Routinely, as a part of junking, claimant is
required to push a heavy cart of scrap steel over to an area where
he can then use the crane. This cart is on wheels but, fully
loaded, can weigh up to five or six thousand pounds. Other
employees have used an electric lift to move this cart but
claimant usually does not use this lift as it is not easily
controllable. Consequently, claimant's work at Curries
occasionally involves lifting or pushing objects in excess of 50
pounds.
The work injuries herein all involve left inguinal hernia
conditions and it is found that all arose out of and in the course
of claimant's employment at Curries. The first injury occurred
after lifting at work on April 4, 1990. Claimant reported this to
his supervisor and was immediately referred for medical treatment.
Upon a diagnosis of hernia, claimant underwent surgical repair.
Following recovery, claimant returned to his job in June 1990
without restrictions. Claimant suffered additional problems in
July 1990 with an entrapped nerve in the area of the hernia and
underwent a second surgery. Claimant was next injured on March 2,
1992 after lifting at work. Again, this injury was reported and
claimant was immediately referred for medical attention. Upon a
diagnosis of recurrent hernia, claimant underwent a third surgical
procedure called laparoscopic. The First Reports of Injury for
the 1990 & 1992 in these two injuries report timely notice of the
injury to Curries. Little evidence was offered by defendants to
dispute claimant's testimony as to how the injuries occurred.
Claimant's testimony and medical reports indicated that claimant
was involved in heavy lifting at home in his private sawmill
business at the time of the injuries, but this alone did not
sufficiently controvert claimant's claim that he was injured while
lifting at work. Claimant returned to work after the March 1992
injury again without restrictions.
Claimant was injured again on June 25, 1992. Due to problems
with the crane, claimant was directed to hand carry steel to the
assembly lines. After objection, claimant did what he was told
and suffered additional injury. The diagnosis this time was a
breakdown in the mesh material used in previous hernia repair
procedures called a "meshoma." Claimant then underwent a fourth
surgery. The human resources manager at Curries admitted at
hearing that he probably received an office note from claimant's
physicians within 90 days of the injury which related that
claimant developed his pain from lifting at work.
After the fourth surgery, claimant received permanent work
restrictions against lifting over 50 pounds and permanent partial
impairment ratings to the body as a whole from 7-15 percent from
physicians. Claimant's physicians opine that this impairment is
the result of claimant's chronic hernia condition and multiple
surgeries. However, as it was not until the last injury that
claimant suffered impairment, it is found that only the last
injury of June 25, 1992 was a cause of this significant permanent
partial impairment to the body as a whole.
Claimant states that he can perform 98 percent of his current
job duties with such restrictions. He still has difficulty
pushing the heavy scrap cart. However, claimant performs his job
satisfactorily and has no intention of leaving Curries at the
present time.
Claimant stated at hearing that he feels pressured at work
and believes his job is in jeopardy. This is disputed by
defendants and his immediate managers. Given the conflicting
evidence, it could not be found that claimant's current job at
Curries is in jeopardy at this time. However, it is found that he
is asked on occasion to exceed his restrictions and this situation
risks future injury.
Claimant's medical condition before the hernias was excellent
and he had no functional impairments or ascertainable
disabilities. Claimant was able to fully perform physical tasks
involving heavy lifting. Due to his current physical limitations,
claimant's medical condition prevents him from fully performing
his current work. Claimant's work history includes saw operation
and welding. His prior welding work is much lighter than his
current job. He only left welding at Curries due to a dispute
with management.
Claimant is 37 years of age and a high school graduate.
Claimant continues to have the ability to perform in medium duty
welding work both at Curries and for other employers. To date, he
remains on his current bay operator job without loss of pay or
benefits.
From examination of all of the factors of industrial
disability, it is found that the work injury of June 25, 1992
was a cause of a mild 15 percent loss of earning capacity.
CONCLUSIONS OF LAW
I. Claimant has the burden of proving by a preponderance
of the evidence that claimant received an injury arising out of
and in the course of employment. The words "out of" refer to the
cause or source of the injury. The words "in the course of" refer
to the time and place and circumstances of the injury. See
generally, Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298
(Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68
N.W.2d 63 (1955). An employer takes an employee subject to any
active or dormant health impairments. A work connected injury
which more than slightly aggravates the condition is considered to
be a personal injury. Ziegler v. U.S. Gypsum, 252 Iowa 613, 620,
106 N.W.2d 591 (1961) and cases cited therein.
In the case sub judice, all alleged work injuries were found
to have occurred.
II. Defendants have raised the issue of lack of notice of
the work injury within 90 days from the date of the occurrence of
the injury under Iowa Code section 85.23. Lack of such notice is
an affirmative defense. DeLong v. Highway Commission, 229 Iowa
700, 295 N.W. 91 (1940). Formal notice is not necessary if the
employer has actual knowledge of an injury and information putting
him on notice that the injury may be work-related. Robinson v.
Dept of Transportation, 296 N.W.2d 809, 811 (Iowa 1980). In the
case sub judice, with reference to the last injury, the
physician's report provided to Curries' human resources manager
clearly gave the employer actual knowledge of a work-related
injury. Therefore, defendant failed to establish a defense of
lack of notice.
III. The question of causal connection is essentially within
the domain of expert medical opinion. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of
experts need not be couched in definite, positive or unequivocal
language and the expert opinion may be accepted or rejected, in
whole or in part, by the trier of fact. Sondag v. Ferris Hardware,
220 N.W.2d 903 (Iowa 1974). The weight to be given to such an
opinion is for the finder of fact to determine from the
completeness of the premise given the expert or other surrounding
circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d
867 (1965).
As the claimant has shown that the work injury was a cause a
permanent physical impairment or limitation upon activity
involving the body as a whole, the degree of permanent disability
must be measured pursuant to Iowa Code section 85.34(2)(u).
However, unlike scheduled member disabilities, the degree of
disability under this provision is not measured solely by the
extent of a functional impairment or loss of use of a body member.
A disability to the body as a whole or an "industrial disability"
is a loss of earning capacity resulting from the work injury.
Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899
(1935). A physical impairment or restriction on work activity may
or may not result in such a loss of earning capacity. Examination
of several factors determines the extent to which a work injury
and a resulting medical condition caused an industrial disability.
These factors include the employee's medical condition prior to
the injury, immediately after the injury and presently; the situs
of the injury, its severity and the length of healing period; the
work experience of the employee prior to the injury, after the
injury and potential for rehabilitation; the employee's
qualifications intellectually, emotionally and physically;
earnings prior and subsequent to the injury; age; education;
motivation; 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. See Peterson
v. Truck Haven Cafe, Inc., Vol. 1, No. 3 Iowa Industrial
Commissioner Decisions 654, 658 (Appeal Decision, February 28,
1985).
A showing that claimant had no loss of his job or actual
earnings does not preclude a finding of industrial disability. See
Michael v. Harrison County, 34 Bien Rep., IA Ind. Comm'r 218, 220
(App. Dec. 1979); Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991)
only held that continued employment with no loss of earnings is
significant evidence that should not be overlooked in measuring
loss of earning capacity. Loss of potential employment is also a
factor to consider in assessing industrial disability. Collier v.
Sioux City Comm. Sch. Dist., File No. 953453, (Appeal Decision,
Filed February 25, 1994).
In the case sub judice, it was found that claimant suffered a
15 percent loss of his earning capacity as a result of the work
injury of June 25, 1992. Such a finding entitles claimant to 75
weeks of permanent partial disability benefits as a matter of law
under Iowa Code section 85.34(2)(u) which is 15 percent of 500
weeks, the maximum allowable number of weeks for an injury to the
body as a whole in that subsection.
ORDER
A. The petitions in file numbers 946316 and 1012695 are
dismissed with costs to be paid by defendants pursuant to rule 343
IAC 4.33, including reimbursement to claimant for any filing fees
paid.
B. The following is ordered with reference to file number
1044754:
1. Defendants shall pay to claimant seventy-five (75)
weeks of permanent partial disability benefits at a rate of three
hundred fourteen and 78/l00 dollars ($314.78) per week from
January 18, 1993.
2. Defendants shall pay accrued weekly benefits in a lump
sum and shall receive credit against this award for all permanent
partial disability benefits previously paid.
3. Defendants shall pay interest on unpaid weekly
benefits awarded herein as set forth in Iowa Code section 85.30.
4. Defendants shall pay all other costs of these actions
pursuant to rule 343 IAC 4.33, including reimbursement to claimant
for any filing fee paid in this case.
5. Defendants shall file activity reports on the payment of
this award as requested by this agency pursuant to rule 343 IAC
3.1.
Signed and filed this ____ day of January, 1995.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert S. Kinsey, III
Attorney at Law
PO Box 679
Mason City IA 50402-0679
Mr. Rustin T. Davenport
Attorney at Law
30-4th St NW
PO Box 1953
Mason City IA 50402-1953
5-1803
Filed January 31, 1995
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DENNIS J. BLANCHARD,
Claimant,
File Nos. 1044754
vs. 1012695
946316
ESSTAR, INC./CURRIES COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
TRAVELERS INSURANCE COMPANIES,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803
Non-precedential, extent of disability case.