BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DEBRA MOON,
File No. 946325
Claimant,
A P P E A L
vs.
D E C I S I O N
AT&T,
Employer,
Self-Insured,
Defendant.
___________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal. The decision of the deputy
filed September 21, 1993 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 May, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr Joseph A Nugent
Attorney at Law
1237 73rd St
Des Moines IA 50311
Mr Thomas J McCann
Attorney at Law
405 Sixth St STE 700
Des Moines IA 50309
4000.2
Filed May 19, 1994
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DEBRA MOON,
File No. 946325
Claimant,
A P P E A L
vs.
D E C I S I O N
AT&T,
Employer,
Self-Insured,
Defendant.
___________________________________________________________
4000.2
Penalty benefits awarded for failure to have medical
evidence to support a denial of a claim and for paying
long-term disability benefits in lieu of workers'
compensation benefits.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DEBRA MOON, :
: File No. 946325
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
AT & T, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Debra
Moon, claimant, against AT & T, employer, hereinafter
referred to as the phone company, a self-insured defendant,
for workers' compensation benefits as a result of an alleged
injury on September 18, 1989. On May 5, 1993, a hearing was
held on claimant's petition and the matter was considered
fully submitted at the close of this hearing.
The parties have submitted a 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. Claimant is seeking temporary total or healing
period benefits from September 19, 1989 through the present
time and defendant agrees that she was not working during
this time.
2. If the injury is found to have caused permanent
disability, the type of disability is an industrial
disability to the body as a whole.
3. At the time of injury claimant's gross rate of
weekly compensation was $470.50; she was married; and she
was entitled to 3 exemptions. Therefore, claimant's weekly
rate of compensation is $296.73 according to the Industrial
Commissioner's published rate booklet for this injury.
4. It was stipulated that the providers of the
requested medical expenses would testify as to their
reasonableness and defendant is not offering contrary
evidence. The medical bills submitted by claimant at the
hearing are fair and reasonable and causally connected to
the medical condition upon which the claim herein is based
but their causal connection to any work injury remains an
issue to be decided herein.
Page 2
ISSUES
The parties submitted the following issues for
determination in this proceeding:
I. Whether claimant received an injury arising out
of and in the course of employment;
II. The extent of claimant's entitlement to
disability benefits;
III. The extent of claimant's entitlement to medical
benefits;
IV. The extent of credit under Iowa Code section
85.38(2) to which defendant is entitled; and,
V. The extent of claimant's entitlement to penalty
benefits, if any.
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
defendant placed claimant's credibility at issue during
cross-examination as to the nature and extent of the injury
and disability. From her demeanor while testifying,
claimant is found credible.
Claimant worked for the phone company from 1979 until
September 1989 as a telephone operator. During the last
several years, she was a long distance operator. This
position required her to repetitively use her hands and arms
to enter and retrieve information on a TV monitor using a
keyboard in front of her. According to video tapes of the
console operation and claimant's testimony, this job
required reaching at or above shoulder level. Claimant
explained that the monitor was located above her shoulders
and she would have to use her fingers to locate and mark
information on the screen while she talked to customers.
In the months before she left her employment, claimant
began to experience numbness and tingling in her right hand.
This condition worsened over time and she left her work in
September 1989 due to her pain. Claimant was eventually
diagnosed as suffering form carpal tunnel syndrome and a
right ganglion cyst by her family physician October 1989.
Claimant was referred to an orthopedic surgeon, Scott Neff,
D.O., who performed a surgical release. Claimant initially
improved but upon new complaints of numbness and tingling in
the forearm a few months later, Dr. Neff referred claimant
to Lawrence Rettenmaier, M.D., a specialist in rheumatology,
who ruled out arthritis and diagnosed thoracic outlet
syndrome, a condition in which tendons and nerves centered
in one area in the chest area become inflamed. Dr.
Rettenmaier has treated claimant since that time for these
Page 3
conditions which has now developed into chronic pain
syndrome rendering claimant totally disabled. Claimant has
been unable to complete the physical therapy ordered by Dr.
Rettenmaier because defendant refused to pay for such
treatment. Dr. Rettenmaier opines that claimant's carpal
tunnel, thoracic outlet and her chronic pain syndromes are
work related due to claimant's repetitive hand movements in
her job at the phone company. Dr. Neff agrees with the
thoracic outlet syndrome diagnosis but states that only the
carpal tunnel is work related because claimant did not lift
or reach at or above her shoulders. Two other experts were
hired by claimant and defendant. The one hired by claimant
stated the injury was work related and the one hired by
defendant disagreed. Both of these opinions by non-treating
physicians were not given much weight. Defendant argues
that Dr. Neff should be given greater weight because of his
specialty. However, it was Dr. Neff who referred claimant
to Dr. Rettenmaier. Also, this deputy commissioner believes
claimant and finds that she did in fact lift or reach at or
above shoulder level on a repetitive basis. Therefore, Dr.
Neff's history is incorrect and the views of Dr. Rettenmaier
are viewed as most credible. Therefore, it is found that
claimant suffered a work injury on September 18, 1989, the
time she left her employment and that the injury consists of
the conditions diagnosed by Dr. Rettenmaier.
Based again on Dr. Rettenmaier's views, it is found
that claimant has not reached maximum healing because she
has not received the physical therapy treatment he
recommends. As claimant is expected to improve with
treatment, no findings of permanency can be made at this
juncture.
As claimant is seeking penalty benefits, the
reasonableness of defendant's conduct must be examined. The
defense has consistently denied liability for any injury and
has not paid any compensation benefits to date. However,
defendant has a group medical and long-term disability plan
which has paid claimant benefits although not as much as she
would have received from workers' compensation. As there
has never been any dispute or evidence to suggest that the
carpal tunnel syndrome was anything other than a work
injury, defendant's actions in denying the claimant and
providing other benefits than workers' compensation is
unreasonable. Also, although Dr. Neff stated in March 1990,
when he ended treatment of claimant, that her thoracic
outlet syndrome was not related to the ganglion cyst
problem, he did not opine that the condition was not work
related until his deposition for this litigation in March
1993. However, claimant's family physician and Dr.
Rettenmaier both opined that the claimant's condition was
work related during the time of their treatment. A denial
of a claim without a supportive medical opinion when
treating physicians opine that the condition is work related
is unreasonable. The maximum penalty should be imposed for
such conduct.
The parties stipulated that defendant is entitled to
credit for the long-term disability and the group health
insurance benefits paid. The weekly stipulated rate of
Page 4
compensation is $296.73. Claimant was paid $289.51 per week
through September 24, 1990 according to defendant's exhibit
10 and $82.16 per week though May 31, 1993 from claimant's
exhibit 13. Also from claimant's exhibit 13, it is found
that from May 31, 1992 to the present, claimant received
$85.08 per week which is the monthly benefit divided by 4.2
weeks.
As the conditions for which the treatment expenses were
incurred are found work related, the requested expenses in
claimant's exhibit 4 are all found work related.
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,
Comm. Sch. Dist. 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.
It is not necessary that claimant prove his disability
results from a sudden unexpected traumatic event. It is
sufficient to show that the disability developed gradually
or progressively from work activity over a period of time.
McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa
1985). The McKeever Court also held that the date of injury
in gradual injury cases is the time when pain prevents the
employee from continuing to work. In McKeever the injury
date coincided with the time claimant was finally compelled
by pain to give up his job.
In the case sub judice, the injury was cumulative and
the date of injury found was when the claimant left work.
II. Claimant is entitled to weekly benefits for
temporary total disability benefits or healing period under
Iowa Code section 85.33 and 34 from the date of injury until
claimant returns to work; until claimant is medically
capable of returning to substantially similar work to the
work she was performing at the time of injury; or, until it
is indicated that significant improvement from the injury is
not anticipated, whichever occurs first.
It was found that claimant has not reached maximum
healing due to refusal of defendant to provide the treatment
recommended by her treating physician. Claimant is entitled
to a running award of temporary total benefits until she
reaches maximum healing.
III. Pursuant to Iowa Code section 85.27, claimant is
entitled to payment of reasonable medical expenses incurred
for treatment of a work injury. Claimant is entitled to an
Page 5
order of reimbursement if she has paid those expenses.
Otherwise, claimant is entitled only to an order directing
the responsible defendants to make such payments directly to
the provider. See Krohn v. State, 420 N.W.2d 463 (Iowa
1988).
In the case at bar, the parties stipulated that all of
the requested expenses were causally related to the
conditions alleged to be work related herein. As these
conditions have been found to be work related the expenses
were found work related. Therefore, claimant is entitled to
these expenses.
IV. With reference to entitlement to credit under
85.38(2), Defendant is allowed to take whatever credit it
believes is appropriate under Iowa code section 85.38(2) and
if claimant believes that the credit taken is improper, the
claimant may petition the agency for relief. Presswood v.
Iowa Beef Processors, Case No. 735442 (Appeal Decision
1986). However, employer is entitled to a credit for
long-term disability benefits paid, less any tax deductions
from those payments. West v. O'Bryan Bros., File No.
8904094 (Appeal Dec., March 17, 1993). Knopp v. William
Brown Co., (Appeal Dec., June 4, 1993).
V. Claimant seeks additional weekly benefits under
Iowa Code section 86.13, unnumbered last paragraph. That
provision states that if a delay in commencement or
termination of benefits occurs without reasonable or
probable cause or excuse, the industrial commissioner shall
award extra weekly benefits in an amount not to exceed 50
percent of the amount of benefits that were unreasonably
delayed or denied. Defendants may deny or delay the payment
of benefits only when the claim is fairly debatable. Seydel
v. U of I Physical Plant, (Appeal Dec., November 1, 1989).
When the claim is "fairly debatable, the insurer is entitled
to debate it, whether the debate concerns a matter of fact
or law." The Supreme Court recently has clarified the
grounds necessary to impose a section 86.13 penalty.
In the recent case of Boylan v. American Motorists Ins.
Co., No. 250/91-1520, Iowa Supreme Court, filed September
23, 1992, the court stated as follows:
We conclude that it is unlikely that the
legislature intended the penalty provision in
section 86.13 to be the sole remedy for all types
of wrongful conduct by carriers with respect to
administration of workers' compensation benefits.
By its terms, it applies only to delay in
commencement or termination of benefits. It
contemplates negligent conduct rather than the
willful or reckless acts that are required to
establish a cause of action under Dolan.
(emphasis added)
Consequently, not only bad faith but also negligent
conduct can invoke the penalty provisions of section 86.13.
In reviewing the propriety of defendant's actions, Iowa Code
Page 6
section 507B.4(9) lists uniform unfair settlement claims
practices for insurance companies. This listing is useful
as a statement of public policy to identify the types of
claim settlement practices that should be viewed
unreasonable. Failing to promptly and fully investigate a
claim and to make claimant's institute litigation to secure
benefits are two types of unfair claims practices in this
listing.
Therefore, Iowa Code section 86.13, as now interpreted
by Boylan, creates an affirmative duty for workers'
compensation insurance carriers and self-insureds to act
reasonably once a claim is filed. Acting reasonably means
to fully and fairly investigate a claim, not to stand back
and deny a claim simply because they wish to deny a claim.
Making claimant wait as long as possible for his money
regardless of medical evidence and to force claimant into
litigation to soften a claimant up for settlement is
unreasonable conduct entitling claimant to penalty benefits.
Hartl v. Quaker Oats Company, File No. 931120, (Appeal
Decision, July 22, 1993). Failure to have a medical opinion
to support a denial of a claim may also justify an award of
penalty benefits when claimant's physician has opined in
favor of claimant even if an opinion supportive of denial is
later obtained. Turner v. Louis Rich Company, File No.
860345, Appeal Decision, June 5, 1991. Paying long-term
disability benefits which are less than worker's
compensation benefits in a case which was not fairly
debatable is unreasonable and may justify an award of
penalty benefits. Wheels v. AT & T, File No. 936967,
(Appeal Decision, June 30, 1993).
In the case sub judice, an award of penalty benefits is
justified on several grounds. An inadequate investigation
was made before denying liability. There was no evidence to
support the denial of liability for carpal tunnel syndrome
and only long-term disability benefits were paid to
claimant. Due to length of the unreasonable conduct and the
multiple nature of the violations, a maximum penalty of 50
percent is justified and will be imposed. A specific
monetary amount of penalty for each week cannot be made as
the penalty will be the difference between the compensation
rate and amounts received as net wages, after payroll taxes.
This must be computed by the parties and if this cannot be
done within 20 days of the date of the filing of this
decision, the claimant will have to move for a second
hearing to determine the penalty amount.
ORDER
1. Defendant shall pay to claimant temporary total
disability or healing period benefits from September 18,
1989 to the present and such payments shall continue for an
indefinite time into the future until the conditions are met
for ending such benefits as set forth in Iowa Code section
85.33(1) or 85.34(1).
2. Defendant shall pay the medical expenses listed in
claimant's exhibit 4. Claimant shall be reimbursed for any
Page 7
of these expenses paid by him. Otherwise, defendants shall
pay the provider directly along with any lawful late payment
penalties imposed upon the account by the provider.
3. Defendant is ordered to provide whatever care and
treatment, including all tests and procedures, deemed
necessary by Lawrence Rettenmaier, M.D., who shall be
designated as claimant's treating physician.
4. Defendant shall pay a penalty on each week of the
entitlement to benefits to date consisting of 50 percent of
the difference between the weekly rate of compensation and
the net weekly amounts of long-term disability payments
received after taxes.
5. Defendant shall pay accrued weekly and penalty
benefits in a lump sum and shall receive credit against this
award for all benefits previously paid.
6. Defendant shall receive credit for previous
payments of benefits under a non-occupational group
insurance plan, if applicable and appropriate under Iowa
Code section 85.38(2), less any tax deductions from those
payments.
7. Defendant shall pay interest on weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
8. Defendant shall pay the costs of this action
pursuant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
9. Defendant 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 September, 1993.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Joseph A. Nugent
Attorney at Law
1239 73rd Street
Des Moines, Iowa 50311
Mr. Thomas J. McCann
Attorney at Law
405 Sixth Street STE 700
Des Moines, Iowa 50309
4000.2
Filed September 21, 1993
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DEBE MOON,
File No. 946325
Claimant,
A R B I T R A T I O N
vs.
D E C I S I O N
AT&T,
Employer,
Self-Insured,
Defendant.
___________________________________________________________
4000.2
Penalty benefits awarded for failure to have medical
evidence to support a denial of a claim and for paying
long-term disability benefits in lieu of workers'
compensation benefits.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RITA SIEVERDING,
Claimant,
vs.
File No. 946365
JOHN MORRELL & CO.,
A P P E A L
Employer,
D E C I S I O N
and
NATIONAL UNION FIRE
INSURANCE COMPANY,
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 December 31, 1991 is affirmed and is adopted as the
final agency action in this case.
Claimant attempts to raise for the first time on appeal the
issue of whether discovery requirements were correct.
Claimant did not raise the issue before the presiding deputy
(see e.g., the prehearing report dated November 6, 1991) and
the issue will not be considered on appeal.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of June, 1992.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Page 2
Copies To:
Mr. Harry H. Smith
Attorney at Law
P.O. Box 1194
Sioux City, Iowa 51102
Mr. Thomas M. Plaza
Attorney at Law
P.O. Box 3086
Sioux City, Iowa 51102
9999
Filed June 30, 1992
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RITA SIEVERDING,
Claimant,
vs.
File No. 946365
JOHN MORRELL & CO.,
A P P E A L
Employer,
D E C I S I O N
and
NATIONAL UNION FIRE
INSURANCE COMPANY,
Insurance Carrier,
Defendants.
____________________________________________________________
9999
Summary affirmance of deputy's decision filed December 31,
1991, with short additional analysis.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
RITA SIEVERDING, :
:
Claimant, :
:
vs. : File No. 946365
:
JOHN MORRELL & CO., : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
NATIONAL UNION FIRE INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
statement of the case
This is a proceeding in arbitration brought by the
claimant, Rita Sieverding, against her employer, John
Morrell & Company, and its insurance carrier, National Union
Fire Insurance Company, to recover benefits under the Iowa
Workers' Compensation Act as the result of an injury
sustained on July 12, 1989. This matter came on for hearing
before the undersigned deputy industrial commissioner at
Sioux City, Iowa, on November 7, 1991. A first report of
injury has been filed.
The record consists of joint exhibits 1 through 48 and
claimant's exhibit 49 as identified on appropriate exhibit
lists as well as of the testimony of claimant and of Patrick
Luse, D.C.
issues
Pursuant to the hearing assignment order, the
prehearing report and the oral stipulations of the parties
at hearing, the parties have stipulated that claimant did
receive an injury which arose out of and in the course of
her employment on July 12, 1989; that a causal relationship
exists between such injury and temporary total or healing
period disability; and, that claimant has appropriately
received temporary total disability benefits from March 24,
1990, through October 14, 1990, and that claimant has
appropriately received temporary partial disability benefits
from October 15, 1990, through November 18, 1990. The
parties have further stipulated that claimant was married
and entitled to four exemptions at the time of her injury
and had a gross weekly wage of $376.33, entitling her to a
weekly rate of compensation of $247.90.
Issues remaining to be decided are:
Page 2
1. Whether a causal relationship exists between
claimant's injury and claimed permanent partial disability;
2. The nature and extent of any benefit entitlement;
3. Whether claimant is entitled to payment of the
costs of an examination under section 85.39; and,
4. Whether a penalty shall be imposed upon defendants
for unreasonable denial or delay in commencement of benefits
under section 86.13 unnumbered paragraph 4.
findings of fact
The deputy, having heard the testimony and considered
the evidence, finds:
Claimant was born on November 14, 1958. She has
completed the ninth grade and has received a GED. She
undertook a course in golf course management at Western Iowa
Technical College, but worked in that field for only one
month. Her work history is in either the packing industry
or in unskilled essentially entry-level positions.
Claimant began work at John Morrell in 1984. On July
12, 1989, claimant started to fall forward while walking on
steps. She "flung" herself backwards in order to prevent a
fall, and in the process jammed her left hip. Claimant
reported initially having right leg pain and then having
increasing pain on the left side. She has subsequently had
complaints of right groin discomfort, left hip discomfort,
headache and lumbar and cervical back pain. Claimant had
previously had an automobile accident on March 23, 1981,
after which she experienced neck and shoulder pain.
Claimant characterized such as neck and back pain at hearing
and reported that she had "no problems" after seeing the
doctor a few times.
Kevin J. Liudahl, M.D., referred claimant to Quentin J.
Durward, M.D., who referred claimant to Leonel H. Herrera,
M.D. Dr. Herrera released claimant to return to temporary
partial work status and subsequently to full work status.
Claimant reported that she remains restricted as to bending
and squatting. The medical records do not reflect those
restrictions, however. Claimant currently works scaling
products, that is, weighing the product and labeling the
product with its name and weight. Claimant's current wage
equals her wage at injury. Claimant reports that co-workers
help her with heavy lifting and that her supervisor has
helped her as well. Claimant reports that she can no
longer bowl, play volleyball, garden, or run. She reported
that her daughter vacuums, makes the bed, and carries
laundry. Claimant indicated she is unable to sit or stand
for long periods. Claimant has made only one visit to the
nursing station in 1991; that visit occurred after she
lifted a basket of "tenders." Claimant generally stands at
her current job, but does have a table available on which
she can sit while the product is changed.
Page 3
Kevin J. Liudahl, M.D., ordered an MRI of claimant's
lumbar spine. James C. Beeler, M.D., interpreted an MRI of
May 7, 1990, as showing bulging of the annulus fibrosis at
L4-5 and minimal bulging at L5-S1. Dr. Beeler, on August
24, 1990, reported that the MRI showed a small focus of
increased T2 signal intensity in the posterior midline
annulus at the L4-5 level. He stated that recent literature
had suggested that finding might represent an anterior
annular tear, unassociated with herniation at that time. An
EMG study was interpreted as positive for chronic left L4-5
radiculopathy.
Quentin J. Durward, M.D., a neurosurgeon, examined
claimant on May 21, 1990. Her neurological exam was normal.
Claimant had marked tenderness over the left greater
trochanter and posterior hip joint area in addition to the
sciatic notch. She had limitation of straight leg raising
at 70 degrees not relieved by flexing the knee. Knee and
ankle reflexes were symmetric at 2+. Claimant flexed
forward about 40 degrees and had poor curve reversal. There
was some blunting of pin in the dorsum of the left foot.
Power examination was normal.
Dr. Durward again saw claimant on August 22, 1990. She
then was markedly tender in the greater trochanter on the
left side and had unrestricted leg raising but for lateral
hip pain at 90 degrees on the left. She forward flexed to
80 degrees with excellent curve reversal. She extended
well. Claimant had undergone physical therapy and epidural
steroid injections between the May and August examinations.
Dr. Durward advised a myelogram. Dr. Durward interpreted
the myelogram as showing a very mild bulge at the L4-5 disc
without significant nerve root compression. Myelogram of
the neck was normal. The doctor opined that claimant had
left trochanteric bursitis and chronic back and neck pain
syndrome with radicular symptoms of indeterminate etiology.
Dr. Durward referred claimant to Dr. Herrera, a
neurologist, for isokinetic rehabilitation.
On September 27, 1990, Dr. Herrera opined that claimant
would not have permanent partial "disability." On December
18, 1990, Dr. Herrera reported that claimant's chronic L5
radiculopathy was improved and released claimant from his
care to return on a PRN basis. Dr. Herrera recommended that
claimant continue with a 15-pound lifting restriction for
six weeks, then increase her lifting restriction to 25
pounds.
Drs. Liudahl and Durward related claimant's back and
hip pain to her work injury at John Morrell. Neither
physician assigned any permanent partial impairment rating,
however. The record does not reflect that either doctor was
aware of claimant's earlier automobile accident.
Joel T. Cotton, M.D., a neurologist examined claimant
initially on November 20, 1990, and reviewed the record from
previous "examiners," apparently records of previous
physicians. He found claimant had normal strength in her
arms and her legs as well as normal sensation in her hands
Page 4
and feet. Straight leg raising was negative to 90 degrees
bilaterally in the seated position. Movement of the right
hip was unrestricted and accompanied by complaint. There
was some inconsistent complaint of left hip pain with
flexion and rotation. Lateral bending and extension of the
low back were judged to be normal. Claimant had
unrestricted movement of the neck unaccompanied by
subjective complaints of pain. Claimant reported tenderness
on palpation over the left hip laterally. Dr. Cotton could
not substantiate neurological injury to claimant's neck, low
back or cervical or lumbar nerve roots. He reported no
neurological reason existed for claimant not to return to
her previous, usual and customary activities without
restriction. Dr. Cotton did not agree that claimant's nerve
and muscle study, that is, her EMG and nerve conduction
studies of May 7, 1990, were consistent with a subacute L5
radiculopathy. He opined that the negative myelogram
confirmed the lack of any nerve root injury. He opined that
any previous suspected "'chronic left L5 radiculopathy'" was
no longer present and that neither claimant's current
symptoms nor her neurological examination documented a
residual injury affecting either the spine or lumbar nerve
roots. Dr. Cotton is a board-certified neurologist. He is
also board certified in electrodiagnostic medicine,
specifically in EMG.
Patrick Luse, D.C., initially examined claimant on
April 23, 1991. Claimant subsequently has undergone
chiropractic treatment with Dr. Luse. Dr. Luse's diagnosis
was of chronic lumbar sprain with hypomobility and
radiculitis; chronic left trochanteric bursitis; and,
chronic cervical sprain. Dr. Luse opined that claimant did
receive an injury as a result of her July 12, 1989, work
incident. He rated claimant's permanent partial impairment
as follows:
IMPAIRMENT RATING: (Rating for permanent physical
impairment
Sensory impairment rating:
L5 nerve 5 x 10% (grade) = 1% impairment to extremity
Motor impairment rating:
L5 nerve 37 x 5% (grade) = 2% impairment to extremity
Range of Motion Evaluation: (Given in degrees)
Dorsal-Lumbar Spine
Flexion 75 degrees = 0%
Extension 15 degrees = 3%
Left lateral flexion 15 degrees = 2%
Right lateral flexion 20 degrees = 1%
Other
Unoperated with medically documented injury and a
minimum of six months medically documented pain,
recurrent muscle spasms or rigidity associated with
none-to-minimal degenerative changes on structural
Page 5
tests for the lumbar spine = 5% impairment to the whole
person.
SUMMARY
Total impairment to the whole person = 10%.
Dr. Luse reported that his standard for muscle grades
was the Manual of Orthopedic Surgery, American Orthopedic
Association, and the standard for other values was the
Guides to the Evaluation of Permanent Impairment, American
Medical Association, Third Edition.
Dr. Luse reported that he had had Jerry Newman, a
physical therapist, review the report of the EMG of May 7,
1990. The doctor stated that Newman felt the EMG was
definitely an "'abnormal EMG' and 'suggestive of a lesion'
and consistent with subacute L5 radiculopathy."
Dr. Luse appeared at hearing and testified as regards
his evaluation and measurement methods and instruments. Dr.
Luse stated that his permanent partial impairment rating did
not include claimant's neck or hip complaints, but only
complaints related to the lumbar spine. Claimant's balance
with Dr. Luse for evaluation is $300.
Dr. Cotton re-evaluated claimant on September 10, 1991.
A repeat EMG was performed. Dr. Cotton interpreted that EMG
as entirely normal showing no evidence of past or present
nerve damage and showing nothing indicative of past or
present L5 radiculopathy. Dr. Cotton disagreed with Dr.
Luse's findings reporting that range of motion of claimant's
spine as of that date was normal with unrestricted lateral
flexion both towards the left and right; that flexion in the
standing position was approximately 80 degrees and that
straight leg raising again was performed in the seated
position to 90 degrees easily. Evidence of impairment of
lumbar or cervical range of motion was present. The doctor
opined to a reasonable degree of medical probability that
claimant had no permanent partial impairment as a result of
limitation of motion in the cervical or dorsal lumbar spine.
The doctor then stated:
There is no evidence that this individual has
any permanent partial impairment as the result of
medically documented injury and a minimum of six
months of pain for which she was given a five
percent impairment to the whole person. That
impairment according to Page 73, Table 49, of the
Third Edition of the American Medical Association
Guides to the Evaluation of Permanent Impairment
is for "impairments due to specific disorders of
the spine.["] There is no evidence whatsoever at
the time of today's examination that this
individual has any past or present injury to the
area of the spine. This includes the
intervertebral disks as well as the other soft
tissues associated with the spine. There is no
pain or tenderness over the lumbar or dorsal
Page 6
spine, there is unrestricted movement of the
lumbar spine, needle electrode examination (EMG)
of the lumbar paraspinous muscles at the levels of
L3 through S1 was normal, and she is not found to
have any "muscle spasm or rigidity". It is
therefore my opinion based upon a reasonable
degree of medical probability that this individual
has not suffered any permanent partial impairment
or subsequent disability to her spine according to
the Third Edition of the American Medical
Association Guides to the Evaluation of Permanent
Impairment, Third Edition.
(Joint exhibit 46, page 4).
Dr. Cotton opined that claimant could perform all usual
and customary activities without restrictions and did not
require any additional appreciable medical attention for her
complaints.
conclusions of law
Our first concern is whether claimant has shown a
causal relationship between her injury and claimed permanent
partial disability.
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in 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).
Drs. Liudahl and Durward related claimant's back and
hip pain to her work injury. Neither of those physicians
has rendered a permanency rating, or otherwise indicated
that claimant's condition would result in permanent
impairment, however. Dr. Herrera expressly opined that
claimant's condition would not result in a permanent partial
[impairment]. Dr. Cotton has indicated that claimant has no
permanent impairment on account of her work condition. Dr.
Luse has opined that claimant has a permanent partial
impairment of 10 percent of the body as a whole, which he
Page 7
attributes wholly to her lumbar spine condition. Dr. Cotton
expressly disagrees with Dr. Luse and has interpreted both
the initial EMG of May 7, 1990, and the subsequent EMG of
September 10, 1991, as normal. Such is contrary to the
opinions regarding the EMG on which Dr. Luse largely bases
his impairment rating. Dr. Cotton is board certified in
electrodiagnostic medicine, that is, the use of EMG. For
that reason, we defer to Dr. Cotton's opinion in this
regard. Hence, claimant has not preponderated in
establishing a causal relationship between her alleged work
injury and any permanent partial impairment and subsequent
disability.
As claimant has not preponderated on that issue, we
need not reach the issue of any permanent benefit
entitlement. We note that claimant continues to work for
the employer and that claimant herself testified that the
employer accommodates her. Given such, any loss of earning
capacity, had such been appropriately awarded under the
record presented, would have been minimal.
As claimant has not prevailed in establishing causation
to permanent partial disability and as the parties agree
that defendants paid, apparently, timely, all temporary
total disability and temporary partial disability to which
claimant was entitled, claimant's request of an assessment
of additional benefits under section 86.13, unnumbered
paragraph 4, is no longer viable.
Claimant also requests payment for Dr. Luse's
examination under section 85.39. Section 85.39, unnumbered
paragraph 2, provides, in relevant part:
If an evaluation of permanent disability has been
made by a physician retained by the employer and
the employee believes this evaluation to be too
low, the employee shall, . . . be reimbursed by
the employer the reasonable fee for a subsequent
examination by a physician of the employee's own
choice, . . .
Dr. Cotton evaluated claimant at defendants' request.
Dr. Cotton opined that claimant had no permanency. An
evaluation with subsequent opinion of no permanency equals a
rating of permanency. See Coble v. Metromedia, Inc.,
Thirty-fourth Biennial Report of the Industrial Commissioner
71 (1979). Claimant therefore is entitled to payment for
the cost of evaluation with Dr. Luse in the amount of $300.
Page 8
order
THEREFORE, IT IS ORDERED:
Claimant take no further weekly compensation benefits
from this proceeding.
Defendants pay claimant costs of an independent
evaluation with Patrick Luse, D.C., in the amount of three
hundred and 00/100 dollars ($300.00).
Defendants and claimant pay equally the costs of this
proceeding pursuant to rule 343 IAC 4.33.
Defendants file claim activity reports as requested by
this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ______ day of ____________, 1991.
______________________________
HELENJEAN M. WALLESER
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Harry H. Smith
Attorney at Law
P.O. Box 1194
Sioux City, Iowa 51102
Mr. Thomas M. Plaza
Attorney at Law
200 Home Federal Building
P.O. Box 3086
Sioux City, Iowa 51102
Page 1
1803; 2600; 2502
Filed December 31, 1991
HELENJEAN M. WALLESER
before the iowa industrial commissioner
____________________________________________________________
:
RITA SIEVERDING, :
:
Claimant, :
:
vs. : File No. 946365
:
JOHN MORRELL & CO., : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
NATIONAL UNION FIRE INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
1803; 2600
Opinion of medical doctor board certified in neurology and
electrodiagnostic medicine accepted over that of
chiropractic physician. No permanent partial disability
impairment.
2502
Prior evaluation with finding of no permanent partial
disability impairment sufficient to entitle claimant to
reimbursement for subsequent evaluation.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LYLE SCHWERY, :
:
Claimant, : File No. 946402
:
vs. : A R B I T R A T I O N
:
CITY OF DES MOINES, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Lyle
Schwery, claimant, against the City of Des Moines, employer,
hereinafter referred to as the City, a self-insured
defendant, for workers' compensation benefits as a result of
an alleged injury on January 27, 1990. On September 8,
1992, a hearing was held on claimant's petition and the
matter was considered fully submitted at the close of this
hearing.
The parties have submitted a prehearing report of
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 prehearing report, the parties have
stipulated to the following matters:
1. On January 27, 1990, claimant received an injury
arising out of and in the course of employment with the
City.
2. Claimant is entitled to healing period benefits
from January 28, 1990 through February 1, 1990, and from May
23, 1990 through July 17, 1990.
3. The injury was a cause of permanent industrial
disability to the body as a whole.
4. Permanent partial disability benefits shall begin
as of July 18, 1990.
5. At the time of injury claimant's gross rate of
weekly compensation was $508.12; he was married; and, he was
entitled to five exemptions. Therefore, claimant's weekly
rate of compensation is $327.13 according to the Industrial
Page 2
Commissioner's published rate booklet for this injury.
6. All requested medical benefits have been or will be
paid by defendant.
ISSUE
The only issue submitted by the parties for
determination in this proceeding is 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
defendant 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, age 42, has worked for the City since July
1983 and continues to do so at the present time. At the
time of the work injury herein, he was a police radio
dispatcher. This job required regular use of his arms and
hands and some overhead reaching to operate equipment and
grab reference materials and books located on shelves in the
work area.
On January 27, 1990, claimant injured his low back,
right wrist, left knee, right ankle and right shoulder when
he slipped on ice in the City's parking lot on his way to
work. Claimant first sought medical treatment from his
family doctor but was referred to the City's employee health
clinic because the injury occurred at work. Dr. Straubinger
(first name unknown) at this clinic treated claimant
conservatively for a few weeks with physical therapy and
medication. When this treatment did not improve claimant's
condition, he referred claimant in February 1990 to an
orthopedic surgeon, Marshall Flapan, M.D. Although claimant
reported right shoulder problems in 1988, Dr. Straubinger
attributed claimant's problems at that time as casually
related to the January 27, 1990 fall at work.
Upon a diagnosis of multiple sprains and contusions,
Dr. Flapan continued drug therapy and returned claimant to
unrestricted duty. However, claimant returned to Dr. Flapan
a few weeks later with continued shoulder complaints when an
MRI test indicated possible rotator cuff tearing in the
right shoulder. Dr. Flapan then ordered an arthrogram which
confirmed a rotator cuff tear. Surgery was performed in May
1990 to repair the rotator cuff and resect the
Page 3
coracoacromial ligament. Claimant was again returned to
work without restrictions except for using arms away form
his body and over his head. Claimant returned to work but
stated that he continued to have problems reaching and
lifting phone books, log books and other resource material
at his work station. He stated that he regularly stood up
to change positions.
During his employment with the City, claimant had been
attending college. He graduated with a BA in psychology in
May 1991 from Simpson College. His job search following
graduation included the City. In March 1992, claimant
accepted a position with the City as Homeless Assistance
Coordinator. This is a higher paid position that police
dispatcher and at the present time the annual salary range
tops out at $37,000. Claimant stated that he accepted this
position not only for increased pay but to use his education
and to secure a less physical position.
Claimant testified that he continues to experience
physical problems in performing his new coordinator job.
The job requires repetitive use of his hands on occasion
such a using a keyboard and a lot of stair climbing. He
stated that occasionally he assists in unloading truckloads
of donations which is heavy work. Claimant's current
supervisor testified that claimant is a very good employee
and did not know until the day of hearing that he had a
prior work injury.
It is found that the work injury of January 27, 1990 is
a cause of a 5-12 percent permanent impairment to the body
as a whole. Dr. Flapan gave a rating of 5 percent and a
one-time evaluator, Martin Rosenfeld, D.O., another
orthopedic surgeon, rated claimant's impairment at 12
percent. Neither gave a rating to the left knee. Dr.
Rosenfeld also opined that claimant left shoulder is
impaired but there is no evidence to suggest that this was
due to the fall.
Also, as a result of the fall at work, claimant is
unable to perform physical activities consisting of no
lifting over 35 pounds, 20 pounds repetitively and no
lifting or reaching above shoulder level. These
restrictions are based upon a functional capability
evaluation performed in July 1991 by Robert Jones, a trained
evaluator at Mercy Hospital in Des Moines. Dr. Flapan
disagrees with such restrictions but his views were rejected
as illogical. It is unconvincing for Dr. Flapan to give
claimant an impairment rating of 5 percent and still opine
at the same time that claimant has no limitations on the use
of his shoulder. Also, Mercy Hospital restrictions are less
than those imposed by Dr. Rosenfeld who believes claimant
should not lift over 10 pounds. However, objective
capability measurement must give way to subjective opinion.
Page 4
Both physicians causally relate the impairment to the work
injury of January 27, 1990.
It is found that claimant was able to return to his
dispatching work after treatment albeit with occasional
pain. Claimant is 41 years of age. Claimant has a college
education. Claimant's prior employment involved bill
collecting and air traffic control. Claimant has umpired
baseball since 1989 but states that he does less of this
today. Claimant is continuing his education in pursuit of a
masters degree.
His earnings since the work injury have increased due
to obtaining the higher salaried job. Although he continues
to experience some problems with his knee and shoulder,
claimant is able to handle his new job. Heavy lifting is
not required for his job according to his supervisors.
However, his disability limits him from performing all
physical aspects of his current job.
From examination of all of the factors of industrial
disability, it is found that the work injury of January 27,
1990 is a cause of a 5 percent loss of earning capacity.
CONCLUSIONS OF LAW
It was stipulated 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,
Page 5
no. 3 State of Iowa Industrial Commissioner Decisions 654,
658 (App. Dec. February 28, 1985).
A showing that claimant had no loss of actual earnings
does not preclude a finding of industrial disability. See
Michael v. Harrison County, Thirty-fourth Biennial Report
of the Industrial Commissioner 218, 220 (App. Dec. January
30, 1979). The supreme court in 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.
In the case sub judice, it was found that claimant
suffered a 5 percent loss of his earning capacity as a
result of the work injury. Such a finding entitles claimant
to 25 weeks of permanent partial disability benefits as a
matter of law under Iowa Code section 85.34(2)(u) which is 5
percent of 500 weeks, the maximum allowable number of weeks
for an injury to the body as a whole in that subsection.
ORDER
1. Defendant shall pay to claimant twenty-five (25)
weeks of permanent partial disability benefits at a rate of
three hundred twenty-seven and 13/100 dollars ($327.13) per
week from July 18, 1990.
2. Defendant shall pay accrued weekly benefits in a
lump sum and shall receive credit against this award for all
benefits previously paid.
3. Defendant shall pay interest on weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
4. Defendant shall pay the costs of this action
pursuant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
5. Defendant 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 October, 1992.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Page 6
Copies To:
Mr. Kevin Kirlin
Attorney at Law
535 Insurance Exchange Bldg
Des Moines, Iowa 50309
Mr. Bruce E. Bergman
Attorney at Law
400 E. First St
Des Moines, Iowa 50309
51803
Filed October 19, 1992
Larry P. Walshire
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LYLE SCHWERY,
Claimant, File No. 946402
vs. A R B I T R A T I O N
CITY OF DES MOINES, D E C I S I O N
Employer,
Self-Insured,
Defendants.
___________________________________________________________
51803
Nonprecedential, extent of disability case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
MERRILL C. BECK, :
:
Claimant, : File Nos. 1025702
: 1025703
vs. : 946526
:
ARMSTRONG RUBBER & TIRE :
CO., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
TRAVELERS INSURANCE :
COMPANY and ALLIANZ :
INSURANCE COMPANY,
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Insurance Carrier, :
Defendants. :
:
------------------------------------------------------------
STATEMENT OF THE CASE
These cases came on for hearing on March 15, 1994, at
Des Moines, Iowa. These are proceedings in arbitration
wherein claimant seeks compensation for permanent partial
disability benefits as a result of alleged injuries
occurring on November 8, 1991 (file 1025702), December 6,
1991 (file no. 1025703), which also involves the Second
Injury Fund, and, December 15, 1990 (file 946526). The
record in the proceedings consist of the testimony of the
claimant, Jack Salsbury, Joyce Kain; claimant's exhibits 1
and 2; and, defendants' exhibits 1 through 8 and 10 through
28. An objection by claimant to defendants' exhibit 9 was
sustained and defendants made an offer or proof.
ISSUES
Regarding the November 8, 1991 alleged injury (1025702
and the December 6, 1991 alleged injury 1025703), the issues
are as follows:
1. The extent of claimant's permanent disability and
entitlement to disability benefits. The parties agreed
these two cases involve simultaneous bilateral scheduled
Page 2
member injuries and come under the provisions of
85.34(2)(s); and,
2. Whether claimant is entitled to Second Injury Fund
benefits.
Regarding the February 15, 1990 injury (946526), the
issues are:
1. Whether an injury arose out of and in the course of
claimant's employment on February 15, 1990;
2. Whether there is a causal connection between
claimant's alleged disability and any temporary total
disability, healing period or permanent partial disability
benefits and his alleged February 15, 1990 injury;
3. The extent of claimant's permanent disability, if
any, and entitlement to disability benefits. The parties
agree that any permanent disability would be to claimant's
right lower extremity (knee);
4. Whether claimant is entitled to 85.27 medical
benefits, the issue being causal connection and involves
only the amount of $114.04, which was the cost of safety
shoes.
FINDINGS OF FACT
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant is a 53-year-old high school graduate. He
related his work history prior to beginning work for
defendant employer on January 30, 1967, and he referred to
page 81 of claimant's exhibit 1. The undersigned might note
that the numbering of the exhibits is somewhat confusing in
that the claimant offered into evidence exhibits 1 and 2,
but in looking at the claimant's exhibits, they have exhibit
1 and then a page and like on page 81, it is exhibit 58,
page 81. The undersigned is going to refer to claimant's
exhibits as 1 and 2 and then the particular pages. He will
not refer to the prefix that accompanies each page of the
exhibit.
Claimant stated he obtained his job at defendant
employer as a machinist and that his prior work history
helped him to be able to get his current job. He has also
taken some adult education courses.
Claimant stated the demands of his job as machinist
from the time he began to the present.
Claimant said he moved to a farm in 1970 which
comprises of 40 acres, put in the crops himself and did the
building repairs. He had no cattle. He indicated he
stopped doing this in 1990. He indicated that his farming
was at a loss from the income standpoint.
Claimant's testimony is a little confusing in that he
Page 3
talks about his February 15, 1990 injury in which he fell
down the stairs when he was leaving for home after having
attended class in connection with his employment. He then
refers to seeing Dr. Misol on his own and relates to page 2
of exhibit 1 concerning a December 22, 1989 visit in which
he was complaining of pain in his wrists with more trouble
with the left. There is no reference to an 1989 visit with
Dr. Misol but on page 2 it refers to a February 27, 1990
visit with a doctor and there is no comment made concerning
his February 15, 1990 fall.
The claimant testified that he had treatment for a
prior knee problem and went to Dr. Misol for that also on
October 8, 1984. Claimant indicated that from 1967 to early
1990, he had no surgery on his right or left knee.
Claimant related the nature of his work and what the
job encompassed as far as using his body. Claimant related
that one week before February 15, 1990, he worked 52 hours
and the week before that 48. He related the various hours
he has worked during the weeks preceding the 15th. Claimant
indicated the reason he puts in longer hours at times is
that the maintenance people must work when the production
crew is not using the equipment at the company.
Claimant then stated that on February 9, 1990, he told
the nurse of pain in his right hand and elbow which he
related to work. He said he continued working his normal
working hours.
Claimant then related that while going to a class on
behalf of defendant employer, he was leaving the plant and
fell down the stairs hurting his right knee. He went to the
doctor the next day. Page 86 of claimant's exhibit 1 is the
medical records concerning that event.
On March 12, 1990, claimant had arthroscopic surgery on
his right knee and was off work for approximately five
weeks. There is no dispute as to claimant's healing period.
Claimant returned to work on April 19, 1990 and started
doing the same work even though he was supposed to be on
light duty.
Claimant related the medical treatment he obtained from
the various doctors treating him for both his upper and
lower extremities.
Claimant referred to claimant's exhibit 1, page 44,
which is an August 14, 1991 letter by Scott B. Neff, D.O.
The doctor set out certain work restrictions and the
claimant was supposed to be re-evaluated in three months.
At that time, the doctor opined claimant had a 10 percent
impairment in reference to his right lower extremity as a
result of claimant's injury and surgery. Claimant returned
to work on June 26, 1991 as a machinist and the defendant
employer complied with his restrictions and limited
claimant's hours. Claimant contends he was limited to at
least two less hours per week than what he usually worked
and was no longer working 60 or 70 hour weeks. Claimant
Page 4
contends he lost money because of being limited to eight
hours per day and a 40 hour week.
Claimant then testified that he had surgery on November
8, 1991 to help get relief from the problems he was having
with his right upper extremity. He then had the same type
of surgery on his left upper extremity on December 6, 1991.
Claimant then referred to claimant's exhibit 1, page 52, in
which Dr. Neff on January 5, 1992, wrote that claimant was
able to return to work on January 13, 1992, and that he
would have restrictions for approximately 30 days and the
doctor set out those restrictions. Claimant said the
employer accommodated him in his job as a machinist.
On page 53 of claimant's exhibit 1, Dr. Neff, on
February 10, 1992, reported that claimant should restrict
himself to a normal 40 hour week and try to avoid severely
prolonged overtime. He indicated claimant told him he had
been working six to seven days per week, twelve hours per
day, and the doctor thought that might be excessive. He
also indicated that cushioned soled shoes would diminish the
contact force the claimant needs and that Palmar-padded
sobuthane gloves would help claimant's exposed vibration.
He thought claimant was doing very well.
Claimant referred to page 64 of said exhibit, which is
a February 15, 1993 letter of Dr. Neff. In that letter, Dr.
Neff refers to osteoarthritis in both of claimant's knees
which was primary as also stated by Rheumatologist Theodore
W. Rooney, D.O. Dr. Neff further indicated that that had
not been caused, aggravated, accelerated or lighted up by
his work injury. He did say the surgical procedure
necessary on the right patellar tendon mechanism was the
result of his work injury.
Claimant was discharged by Dr. Neff, as reflected in
defendants' exhibit 1, page 67, a March 10, 1993 letter,
because of alleged abuse to Dr. Neff's office staff and
claimant's refusal to pay the co-payment of his medical
bills. Claimant contends he was not discourteous or
abusive.
On cross-examination, claimant was asked concerning his
prior right knee problems and he denied he had right knee
problems for many years before his fall. He didn't remember
Dr. Flapan recommending arthroscopy surgery in 1984, nor
does he remember Dr. Misol indicating he had a torn meniscus
in December 1989, nor that the doctor recommended surgery at
that time. Claimant denied that he had told Rodney E.
Johnson, M.D., that Dr. Misol had recommended knee surgery.
Claimant then was referred to claimant's exhibit 1, page 1,
as to Dr. Johnson's January 16, 1990 note in which the
claimant indicated discomfort in his right knee and told the
doctor that Dr. Misol has evaluated this and recommended
arthroscopy surgery. On examination, Dr. Johnson further
indicated he thought claimant had a flap tear of the
posterior horn of the medial meniscus and he was going to
get a bone scan.
On January 30, 1990, after a bone scan was done, the
Page 5
doctor indicated that claimant has a posterior horn tear of
the medial meniscus and he told the doctor he wished to have
something done about it and has been given a release for
surgery which will be arranged as an outpatient procedure.
The undersigned might note that it is hard to believe the
claimant does not remember this conversation with the doctor
or the problems he was having with his knee since it
happened that these conversations were just approximately 15
days before his alleged fall down the stairs on February 15,
1990. On the medical records, it would appear that
claimant's knee was in such a condition that it needed
surgery, claimant was having problems, and that any fall
claimant had was the result of claimant's knee from a
nonwork situation and that claimant's fall was the result of
claimant's knee condition prior to February 15, 1990.
Claimant was further asked concerning Dr. Rooney's letter of
September 6, 1990, in which he indicated claimant has
features of primary osteoarthritis of the knees and small
joints in the hands. The undersigned is alarmed at
claimant's memory or lack of memory. Claimant was very
evasive with his answers, couldn't recall things that the
undersigned believes he should be able to recall, and his
lack of memory is very questionable. It would also appear
to the undersigned that some of the doctors examining
claimant did not know claimant's past history and the
claimant did not tell them. Claimant finally acknowledged
that he did have knee problems prior to his February 15,
1990 fall.
Jack Salsbury has worked for defendant employer 35
years and has been the local union's benefits representative
for the last ten years. He indicated claimant was making
$14 plus per hour in 1989 and is now making $16 plus. It
would appear to the undersigned from other testimony that
claimant is now earning $16.37 per hour. Mr. Salsbury
testified claimant is well respected, a good employee, and
has good attendance. He indicated that the company has good
fringe benefits including medical and vacation pay. He
understood claimant's restrictions and the restricted hours.
He said claimant had previously worked six to seven days per
week and would earn a lot of overtime. He said the
maintenance department works more hours than the rest of the
plant so there is more overtime available. He said claimant
is losing approximately eight hours per week which equal
approximately $200 per week and of this amount, claimant
would collect vacation.
Joyce Kain testified she began working for defendant
employer in 1972. She is the senior personnel benefits
analyst for defendant employer and has held that position
since 1979. She is in charge of hiring, discipline,
workers' compensation, etc. She knows claimant and has
reviewed his medical file and workers' compensation file.
Ms. Kain testified that claimant claimed he injured his
right knee on February 15, 1990, but he never informed them
that he had a torn meniscus before that date. She said the
defendant employer paid claimant's bill but would not have
if they knew surgery had previously been prescribed before
the February 15, 1990 fall.
Page 6
She said claimant never worked six to seven days at 12
hours per day like he told Dr. Neff in February 1992.
(Claimant's Exhibit 1, page 53) She said claimant's
overtime dropped but so has everyone's. She indicated the
plant went on a six and two-thirds operation and that when
this started, it severely decreased overtime. She
acknowledged that claimant's gross earnings in 1993 were
$36,000, and in 1992 $34,000.
She stated that claimant does not have a 40 hour per
week restriction but does have a 20 pound lifting weight
restriction.
She said that claimant overstated his job as a
machinist and it is not as hard as he described. She does
not doubt that Dr. Neff said claimant should get shoes, but
not to wear cowboy boots like he wears.
Claimant's exhibit 1, page 12, is records referring to
claimant's alleged February 15, 1990 right knee injury
pursuant to a fall. It is obvious from page 13 of said
report that Thomas Bower, LPT, did not know of any prior
history of claimant's knee when he issued that report. In
this report, he opined that claimant had a total of 15
percent impairment to his right lower extremity. He related
5 percent of this on the basis of claimant's meniscectomy
surgery performed on March 12, 1990.
There are a lot of other records, including other
doctors who treated or evaluated or addressed claimant's
knee problems. The undersigned does not feel the need to
specifically refer to those or set those out herein. The
undersigned believes that the medical evidence as a whole is
clear that claimant had preexisting knee problems and that
claimant had medical attention concerning his right knee
approximately one month prior to his February 15, 1990 fall.
The records indicate that claimant needed surgery on his
knee and, in fact, it was being planned or claimant
suggested he would like to have it done prior to his fall on
February 15, 1990. The undersigned further finds that
claimant's knee problems are materially and substantially
the result of his preexisting knee condition and that it
would appear from the record that claimant's fall was or was
more likely to have been caused by claimant's preexisting
knee condition in which it is apparent he had a torn
meniscus and that claimant's fall was as a result of his
preexisting knee condition and not because of a work injury.
There appears to be no dispute that claimant fell after
attending class on behalf of the employer. It would appear
that claimant's knee gave out or likely gave out because of
his preexisting knee condition. The evidence also shows
that the surgery claimant ultimately had shortly after his
fall would have been done and was recommended prior to
February 15, 1990. The undersigned further finds that the
claimant's credibility was questionable as to what he told
or didn't tell the doctors who treated his knee. It would
appear from the medical evidence that those who made a
judgment concerning claimant's knee did so without the
Page 7
benefit of knowing claimant's true medical history.
Claimant acknowledged that he didn't volunteer any
answers but he indicated whatever questions he was asked, he
gave answers. It is hard for the undersigned to believe
that claimant did not or could not recall certain things the
doctors had told him concerning the condition of his knee
prior to February 15, 1990. The undersigned therefore finds
that as to the February 15, 1990 alleged injury, it did not
arise out of and in the course of claimant's employment and
that claimant's knee problems and impairment was not caused
by any work injury and claimant takes nothing as to file
number 946526.
As to claimant's right and left upper extremity alleged
work injuries, the parties have agreed that claimant
incurred a simultanous bilateral upper extremity injury on
November 8, 1991. Although the petitions in files 1025702
and 1025703 refer to two separate injury dates, November 8,
1991 and December 6, 1991, the parties agree that we have
simultaneous bilateral upper extremity injuries under the
provisions of 85.34(2)(s). The only real issues in this is
the extent of claimant's permanent disability under that
provision of the code and whether claimant is entitled to
Second Injury Fund benefits. Claimant's exhibit 1, pages 46
and 49, is the November 8, 1991 and December 6, 1991
operative reports concerning claimant's right endoscopic
carpal tunnel release and left endoscopic carpal tunnel
release, respectively. Dr. Neff, who was the surgeon in
both of the carpal tunnel release surgeries, opined that
claimant had a 1 percent impairment to each hand as a result
of his carpal tunnel syndrome and subsequent surgical
decompression. (Cl. Ex. 1, p. 56, May 20, 1992 letter)
Martin S. Rosenfeld, D.O., gave an impairment rating of
3 percent to the right upper extremity as a result of the
right carpal tunnel syndrome release and a 4 percent
impairment of the left hand because of the increased pain,
tingling and problems. Medical evidence shows that
claimant's work injury did cause an impairment to his left
and right upper extremity. Dr. Neff is known by this agency
to be very conservative in his impairment and Dr. Rosenfeld
is known to be liberal. The weight restriction in the
record had to do with claimant's knee or lower extremities
as the July 10, 1991 letter of Dr. Neff (claimant's exhibit
1, page 43) indicated that claimant had a 20 pound weight
limit at that time subsequent to his knee surgery by Dr.
Neff.
As to the 40 hour limitation, the undersigned believes
that this isn't as such a medical restriction but a
suggestion. In looking at claimant's exhibit 1, page 53,
Dr. Neff made a comment that it would be wise for claimant
to restrict himself to a normal 40 hour week and try to
avoid severely prolonged overtime. The undersigned
interprets that to mean that overtime is not prevented or
restricted but prolonged overtime cannot be done. It is
obvious the doctor made this comment based on the claimant
telling him that he works six to seven days per week, twelve
hours per day. The doctor thought that was excessive. The
Page 8
undersigned believes that would be excessive in any and all
situations. The record does not show claimant worked that
many hours and, in fact, the undersigned notes reflect that
claimant referred to several weeks prior to his February 15,
1990 fall in which he worked at most 56 some weeks and as
low as 25 in other weeks and there were various figures in
between in the 50s and in the 40s. Anyone subjecting
themselves to that many days a week with that many hours is
asking for trouble as far as physical stress on their body.
There is no indication the employer made them or forced an
individual to do it, but obviously claimant was willing
because of the money involved. Once removed from this type
of excessive overtime, which the undersigned does not
believe claimant worked that many hours a day as he
indicated, claimant will no longer either suffer injury or
cause himself to be further aggravated.
The undersigned finds that claimant has a permanent
impairment of 2 percent to the left hand and 2 percent to
the right hand as a result of his carpal tunnel syndrome
surgeries. Converting these under the AMA Guides To The
Evaluation of Permanent Impairment, 2 percent of the hand is
1 percent of the upper extremity and 1 percent of the upper
extremity is 1 percent to the body as a whole and 1 percent
body as a whole as to the left and right upper extremity
results in a 2 percent body as a whole impairment. The
undersigned therefore finds that as a result of claimant's
November 8, 1991 simultaneous bilateral carpal tunnel
syndrome, claimant incurred a 2 percent body as a whole
injury that arose out of and in the course of claimant's
employment. This would entitle claimant to 10 weeks of
permanent partial disability benefits.
Claimant contends that he had as high as 25 percent
permanent partial impairment to his right lower extremity.
He believes the medical evidence would indicate he had a 15
percent as a result of his first surgery, medial meniscus,
and then an additional 10 percent when the Maquet procedure
by Dr. Neff was done. The undersigned believes the greater
weight of medical evidence shows that claimant had a 10
percent permanent impairment to his right lower extremity.
The records show that when Dr. Neff opined a 10 percent, he
did not have all the facts and claimant's prior medical
history so he later decreased that 10 percent and opined
that only 5 percent was attributable at the most to any work
injury if there was a work injury. Dr. Rosenfeld agreed
with Dr. Neff's original 10 percent. Since the undersigned
found there is no work injury of February 15, 1990, it is
immaterial as to any further argument between whether Dr.
Rosenfeld would ultimately agree to a 5 percent of Dr.
Neff's decision or not. As indicated earlier, the
undersigned does not believe these doctors have the full
medical picture or was claimant credible in disclosing his
medical situation when he saw the doctors.
For purposes of the Second Injury Fund, it is
immaterial whether the first injury is a work injury or a
nonwork injury or a congenital condition. The undersigned
therefore finds that for the purposes of the Second Injury
Fund, that claimant had a 10 percent permanent impairment of
Page 9
his right lower extremity at the time of his November 8,
1991 simultaneous bilateral carpal tunnel injury. For the
purpose of the latter injury, the Second Injury Fund is
involved because there is two separate scheduled members
involved at different times.
The undersigned is not considering any alleged
permanent impairment to claimant's left lower extremity.
Dr. Rosenfeld is the only one who referred to that and gave
an impairment and there is nothing further in the record to
indicate that that can be substantiated or is involved in
these proceedings herein.
Claimant argues that claimant has a substantial loss of
income as a result of his injuries and impairments and that
the Second Injury Fund is responsible for payment of some
benefits to the claimant.
The claimant's major contention is that claimant feels
he has lost all opportunities for overtime which under his
calculation amounts to approximately $200 per week. The
undersigned is disturbed by the wide variance of what
claimant contends he is making and what the defendants'
records show he is making. Claimant provided claimant's
exhibit 2, which has been objected to and the objection is
overruled, as that purported to show claimant's adjusted
gross earnings from 1985 through 1992. It showed in 1992
adjusted gross income of $28,672. In looking at defendants'
exhibit 25, page 72, that would show that claimant's actual
adjusted gross as far as employment records is approximately
$34,385.65. For 1993, it shows $36,174.75. The undersigned
does not believe there should be that type of discrepancy
between the parties' records. The undersigned believes that
defendants' records do in fact show claimant's gross
earnings. The undersigned can only determine that the
defendants' figures may have had some deductions he took
from them before arriving at those figures and that they do
not reflect his actual gross income but may reflect an
adjusted gross income or something else after deductions.
There is no question that claimant is making more
income now than he was at the time of his injury. He was
making $14 plus per hour and is now making $16 plus per
hour. Claimant contends he is losing overtime. There is
testimony by the defendants' witness, Joyce Kain, that as
far as she is concerned and the company is concerned, the
claimant does not have a 40 hour per week restriction. The
undersigned has previously addressed that and basically
agrees with that. As indicated earlier, the 20 pound limit
had to do with claimant's lower extremity injury or a
preexisting condition and permanent impairment. Ms. Kain
also indicated that overtime availability for people has
dropped because of a new system installed by the company
which severely decreased overtime.
It is understandable to the undersigned that a company
would not consistently, if it were true, have overtime six
and seven times a week, 12 hours a day. As indicated
earlier, there is no evidence this was the fact anyway.
Forty hours per week is the normal work week and claimant
Page 10
did work some overtime.
Dr. Neff indicates that it would be wise if claimant
removed himself from excessive overtime because of his
overall situation. Once removed from this type of excessive
overtime, it would prevent further impairment or injury to
claimant's body. The undersigned finds it is wise for
defendant employer to limit overtime, particularly as to
individuals who may be more susceptible to injury or through
past history, they incur additional injury because of a
preexisting condition. The undersigned does not find that
claimant has a loss of income as such.
Loss of income and loss of earning capacity are not the
same even though loss of income is one of the criteria used
in determining industrial disability.
The employer is accommodating the claimant and claimant
appears to be doing very good in his job and there is no
reason why he can't and is not able to continue.
Claimant is 52 years of age. He has worked for
Armstrong for 27 years. The undersigned believes if in fact
claimant was relieved of his job that he would have
difficulty doing work and finding employment taking into
consideration his transferable skills, his age, his
education, and the nature of his injuries or impairment.
The undersigned is not going to speculate as a potential has
not arisen and does not appear to be going to arise. If it
does, claimant may have certain remedies under the law. The
undersigned does believe that claimant does have a 10
percent loss of earning capacity taking into consideration
all of the criteria that one is to take into consideration
in determining industrial disability.
The Fund is only responsible for the industrial
disability present that exceeds the disability attributable
to the first and second injuries. The undersigned found
that claimant had a 10 percent permanent partial impairment
to his right lower extremity which would amount to 22 weeks
of permanent partial disability if there was liability. As
indicated before, defendants were not responsible for any
benefits as a result of his February 15, 1990 fall, but as
further indicted it is immaterial as to whether there was a
work injury involved or not.
The undersigned found that claimant has a 2 percent
body as a whole work-related injury as a result of his
simultaneous bilateral carpal tunnel syndrome injury of
November 8, 1991. This entitled claimant to 10 weeks of
permanent partial disability benefits.
Having found claimant incurred a 10 percent industrial
disability, the Second Injury Fund is therefore responsible
for 18 weeks of permanent partial disability benefits
payable to the claimant (10 x 500 = 50 weeks - 22 weeks - 10
weeks = 18 weeks).
Therefore, in summary, the undersigned finds that
claimant did not incur a work injury on February 15, 1990.
Page 11
Claimant incurred a 2 percent body as a whole injury as
a result of his simultaneous bilateral carpal tunnel injury
on November 8, 1991.
The claimant has a 10 percent industrial disability as
a result of his first and second injuries or impairments to
separate scheduled members and, therefore, the Second Injury
Fund is responsible to pay the claimant 18 weeks of
permanent partial disability benefits.
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. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
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).
Since claimant has an impairment to the body as a
whole, an industrial disability has been sustained.
Industrial disability was defined in Diederich v. Tri-City
Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It
is therefore plain that the legislature intended the term
'disability' to mean 'industrial disability' or loss of
earning capacity and not a mere 'functional disability' to
be computed in the terms of percentages of the total
physical and mental ability of a normal man."
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
Page 12
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications,
experience, motivation, loss of earnings, severity and situs
of the injury, work restrictions, inability to engage in
employment for which the employee is fitted and the
employer's offer of work or failure to so offer. Olson v.
Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963);
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980);
Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660
(1961).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, its mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76
N.W.2d 756 (1956). If the claimant had a preexisting
condition or disability that is materially aggravated,
accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962);
Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112
N.W.2d 299 (1961).
Section 85.64 governs Second Injury Fund liability.
Before liability of the Fund is triggered, three
requirements must be met. First, the employee must have
lost or lost the use of a hand, arm, foot, leg or eye.
Second, the employee must sustain a loss or loss of use of
another specified member or organ through a compensable
injury. Third, permanent disability must exist as to both
the initial injury and the second injury.
The Second Injury Fund Act exists to encourage the
hiring of handicapped persons by making a current employer
responsible only for the amount of disability related to an
injury occurring while that employer employed the
handicapped individual as if the individual had had no
preexisting disability. See Anderson v. Second Injury Fund,
262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers'
Compensation-Law and Practice, section 17-1.
The Fund is responsible for the industrial disability
present after the second injury that exceeds the disability
attributable to the first and second injuries. Section
85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467
(Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335
(Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274
N.W.2d 300 (Iowa 1970).
Benefits for permanent partial disability of two
members caused by a single accident is a scheduled benefit
under section 85.34(2)(s); the degree of disability must be
computed on a functional basis with a maximum benefit
entitlement of 500 weeks. Simbro v. Delong's Sportswear,
332 N.W.2d 886 (Iowa 1983).
Page 13
It is further concluded that:
Regarding the February 15, 1990 injury (file 946256):
Claimant did not incur an injury to his lower right
extremity that arose out of and in the course of his
employment.
Claimant had a serious left knee injury and impairment
that existed prior to claimant's February 15, 1990 fall and
that it was this preexisting knee condition that was a
material and substantial cause and reason for claimant to
fall and was the substantial and material reason claimant
incurred the medical and any additional impairment and
surgeries to said right knee.
The doctors did not have the complete and accurate
medical history at certain times when various reports were
made and that claimant failed to disclose his true medical
situation.
Defendants are not responsible for payment of the shoe
bill in the amount of $114.04.
Claimant was not a credible witness.
Regarding the November 8, 1991 bilateral simultaneous
carpal tunnel syndrome injuries, represented by files
1025702 and 1025703, it is concluded that claimant incurred
a simultaneous bilateral carpal tunnel syndrome injury on
November 8, 1991 which resulted in a left and right carpal
tunnel surgery, causing claimant to incur a 2 percent
impairment to both the left hand and right hand resulting in
2 percent permanent impairment to claimant's body as a
whole.
The defendants are obligated to pay claimant 10 weeks
of permanent partial disability benefits at the rate of
$375.64.
Claimant has a 10 percent industrial disability as a
result of his first and second injuries.
In reference to these injuries, the Second Injury Fund
is liable for a total of 18 weeks of permanent partial
disability benefits payable to claimant at the rate of
$375.64.
ORDER
THEREFORE, it is ordered:
Regarding file 946526, alleged injury of February 15,
1990, claimant takes nothing from these proceedings.
The parties divide equally the costs.
Regarding files 1025702 and 1025703, the November 8,
1991 simultaneous bilateral injuries:
Page 14
Defendant employer shall pay unto claimant ten (10)
weeks of permanent partial disability benefits at the rate
of three hundred seventy-five and 64/100 dollars ($375.64)
beginning January 13, 1992.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid. It has already been
stipulated that defendant employer previously paid five (5)
weeks of permanent partial disability benefits at the rate
of two hundred ninety-eight and 10/100 dollars ($298.10).
The Second Injury Fund shall pay claimant eighteen (18)
weeks of permanent partial disability benefits at the rate
of three hundred seventy-five and 64/100 dollars ($375.64)
commencing at the end of the employer's liability.
That defendant employer shall pay interest on benefits
awarded herein as set forth in Iowa Code section 85.30.
That the Second Injury Fund shall pay interest as
provided by law, said interest beginning on the date of this
decision.
That the costs of this action shall be paid equally by
defendant employer and Second Injury Fund.
That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of April, 1994.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Robert W Pratt
Attorney at Law
6959 University Ave
Des Moines IA 50311-1540
Mr Michael J Eason
Attorney at Law
100 Court Ave Ste 600
Des Moines IA 50309-2231
Mr Jon Swanson
Attorney at Law
8th Flr fleming Bldg
218 Sixth Ave
Des Moines IA 50309
Mr James F Christenson
Assistant Attorney General
Page 15
Tort Claims Division
Hoover State Office Bldg
Des Moines IA 50319
5-1100; 5-1803;
5-1808; 5-3200
Filed April 8, 1994
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
MERRILL C. BECK, :
:
Claimant, : File Nos. 1025702
: 1025703
vs. : 946526
:
ARMSTRONG RUBBER & TIRE :
CO., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
TRAVELERS INSURANCE :
COMPANY and ALLIANZ :
INSURANCE COMPANY,
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Insurance Carrier, :
Defendants. :
:
------------------------------------------------------------
File No. 946526
5-1100
Found claimant did not incur an injury that arose out of and
in the course of his employment.
Found claimant's preexisting knee condition was the
substantial cause of his fall and not a work injury.
Claimant did not disclose his true medical history to the
doctors. Claimant took nothing.
File Nos. 1025703 and 1025702
5-1803; 5-1808
Found claimant incurred a bilateral simultaneous carpal
tunnel injury on November 8, 1991, resulting in a left and
right carpal tunnel surgery causing claimant to incur a 2%
permanent partial impairment to claimant's body as a whole
entitling claimant to 10 weeks of permanent partial
disability from defendant employer.
5-3200
Claimant additionally awarded 18 weeks of benefits from the
Second Injury Fund.