Page 1
before the iowa industrial commissioner
____________________________________________________________
_____
:
FRED C. TOMPKINS, :
:
Claimant, :
:
vs. :
: File No. 946532
JOHN MORRELL & COMPANY, :
: 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 23, 1991 is affirmed and is adopted as the
final agency action in this case with the following
additional analysis:
In determining whether claimant's injury is to the arm or to
the body as a whole, the medical records must be closely
examined. The medical profession often uses the term "upper
extremity" to refer to the arm and the shoulder as a unit,
whereas our workers' compensation law compensates an injury
to the arm only differently than an injury to the arm which
also affects the shoulder.
In this case, claimant complained of pain extending from the
arm into the shoulder. Pain alone is not impairment, and
the site of the impairment is the controlling factor.
However, in this case, claimant has also provided medical
documentation that the injury to his arm has also resulted
in decreased range of motion for the shoulder and other
indications of impairment actually extending into the
shoulder itself. As the shoulder is a part of the body as a
whole, claimant is to be compensated industrially under Iowa
Code section 85.34(2)(u).
Page 2
Defendants shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of February, 1993.
________________________________
BYRON K. ORTON
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
P.O. Box 3086
Sioux City, Iowa 51102
1803; 1803.1
Filed February 22, 1993
Byron K. Orton
HJW
before the iowa industrial commissioner
____________________________________________________________
_____
:
FRED C. TOMPKINS, :
:
Claimant, :
:
vs. :
: File No. 946532
JOHN MORRELL & COMPANY, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
NATIONAL UNION FIRE :
INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
_____
1803; 1803.1
Claimant's condition consisting of hand, arm and shoulder
symptoms found to extend to the body as a whole even though
physicians' ratings were to the upper extremity. Lauhoff
Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986) followed in
that disability in the form of actual impairment to the body
as a whole was found, thereby permitting shoulder condition
to be rated industrially.
Claimant, 31-year-old packinghouse worker who had completed
ninth grade and had apparent learning disability as well as
at least average intelligence and who remained employed in
light-duty work with defendants, awarded 15 percent
permanent partial disability. Claimant was precluded from
heavy manual labor; had a permanent partial impairment of
three percent of the body as a whole; and, had gone from a 5
bracket to a 3 bracket job in the plant as a result of his
injury and light-duty restrictions.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
FRED C. TOMPKINS, :
:
Claimant, :
:
vs. : File No. 946532
:
JOHN MORRELL & COMPANY, : 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, Fred C. Tompkins, against his employer, John
Morrell & Company, and its insurance carrier, National Union
Fire Insurance Company, to recover benefits under the Iowa
Workers' Compensation Act as a result of an injury of
January 5, 1989. This matter came on for hearing before the
undersigned deputy industrial commissioner at Sioux City,
Iowa, on November 5, 1991. A first report of injury has
been filed.
The record in this case consists of joint exhibits 1
through 46 as well as of the testimony of claimant.
issues
Pursuant to the hearing assignment order, the
prehearing report and the oral stipulations of the parties
at hearing, the parties stipulated that claimant did receive
an injury arising out of and in the course of his employment
on January 5, 1989, and that that injury bore a causal
relationship to a period of temporary total or healing
period disability running from March 20, 1990, through July
29, 1990. The parties further agreed that defendants have
paid claimant temporary total disability benefits for 18.6
weeks at the rate of $227.24. The parties further agreed
that, at time of injury, claimant was a married gentleman
entitled to four exemptions having a gross weekly wage of
$342.45 and therefore entitled to a weekly rate of
compensation of $227.24.
Issues remaining to be decided are:
1. Whether a causal relationship exists between
Page 2
claimant's injury and claimed permanent partial disability;
and,
2. The nature and extent of any permanent benefit
entitlement, including the related issue of whether claimant
is entitled to scheduled member or industrial disability.
findings of fact
The deputy, having heard the testimony and considered
the evidence, finds:
Claimant is a 32-year-old right-handed gentleman.
Claimant has completed ninth grade and has no GED. He
characterized himself as taking special education courses
and not passing all grades and as having limited reading and
writing abilities. Claimant orally read interrogatory
answers at hearing. He stumbled somewhat in so doing, but
did not appear to be altogether lacking in proficiency or
ability to comprehend the written word. Claimant apparently
also has strong auditory skills in that he was able to
discuss his job duties and his understanding of his medical
condition cogently.
Claimant's primary work history is in the packinghouse
industry. He has been employed at John Morrell since 1981.
On January 5, 1989, claimant was boning feather bones and
pin bones. Claimant described this as involving repeatedly
cutting to the right and flipping over and cutting inward to
the left. His right thumb and fingers began to turn blue
and numb; he experienced night awakening. He was unable to
hold a knife. He began to experience neck problems, sharp
shoulder joint pain and headaches. The company referred
claimant to apparently D. Youngblade, M.D., who noted
swelling in the dorsum of the right wrist as well as
apparently swelling and tenderness and pain in the palmar
right hand. Dr. Youngblade diagnosed tendonitis of the
right forearm, prescribed anti-inflammatories and hand
splints. He restricted claimant from knife work as well as
from grasping, fine manipulations and from lifting more than
ten pounds on an occasional basis.
On light duty, claimant did forklift driving, painting
and "junk pickup." He stated his condition worsened and he
subsequently saw Alan Pechacek, M.D., who took him off work
from March 20, 1990, through July 29, 1990, while keeping
him in a brace and anti-inflammatories.
Claimant has seen A. K. Agarwal, M.D., for evaluation;
John J. Dougherty, M.D., for evaluation; and, Pat Luse,
D.C., for evaluation. Claimant saw each of the aforenamed
physicians one time only.
Per Dr. Pechacek's release, claimant returned to
light-duty work on July 30, 1990, with the same restrictions
as he had previously had. Initially, claimant scooped dry
ice left-handed for approximately two months. He was able
to do that job. Claimant then began traying chops, the job
Page 3
he had at time of hearing. He places one ounce chops on a
tray with three chops to the tray. Claimant reports he can
continue to do this job, although his shoulder and neck pain
and headaches continue. Claimant trays chops on Wednesdays
only. At other times, he floats. As a floater, he has
driven a Bobcat to haul dead hogs and for snow removal; fed
the vac pac machine; assisted in general cleanup; watched
tenderloins be [automatedly] boxed; cut loins with a
straight knife; and, basketed tenderloins.
The boning position claimant held at time of injury was
a 5 bracket job. His current job is a 3 bracket job. Each
bracket equals $.05.
Claimant reported that lifting, overhead lifting,
squeezing and grasping all increase his right shoulder pain.
He indicated that he can no longer play ball, ride bike or
play with his children. His hand cramps and falls asleep;
he can throw a ball and use a hammer only for short periods.
Claimant reported headaches with a lot of lifting. Medical
reports do not substantiate a history of headaches, however.
Claimant is no longer on prescription medications but
testified he takes aspirin every day. Claimant's current
wage is $8.60 per hour. He agreed that he was earning less
than $8.60 per hour in January 1989.
In an office visit of June 1, 1990, Dr. Pechacek stated
that, in spite of claimant's not working, claimant continued
to have symptoms in his right shoulder, arm and hand.
Claimant reported shoulder pain if he raised and moved his
shoulder. Claimant felt stiffness and tightness in the
forearm, wrist, hand and thumb and experienced numbness and
tingling of the hand with persistent gripping. On
examination, claimant had tenderness in the posterior margin
of the acromion extending around laterally in the shoulder.
He did not have AC joint tenderness and had full range of
motion in the shoulder on forward elevation, lateral
elevation, extension, rotation and abduction. Claimant did
have periodic crepitation of the shoulder when elevated and
when bringing the shoulder down with associated pain.
Claimant had some mild induration on the dorsum of the
forearm with local tenderness; he had normal elbow range of
motion. Wrist motion was normal in flexion, extension,
radial and ulnar deviation. Claimant had no particular
weakness on grip strength, abduction of the fingers or pinch
between the thumb or index fingers. Sensory examination to
pinwheel was generally intact. Tinel's and Phelan's signs
were both negative. Dr. Pechacek's impression was that
claimant probably had some mild rotator cuff tendonitis with
impingement as well as musculotendonitis involving the
forearm, wrist, hand and fingers as well as some symptoms
consistent with carpal tunnel syndrome, but with no
definable neurologic deficit. The doctor then stated,
"Although none of his problems is particularly severe, he
does have recurrence of symptoms with use of his shoulder,
arm, and hand. The cumulative effect of all of these
problems is that he really can't do much in the way of
Page 4
packing house work."
On June 4, 1990, Dr. Pechacek advised that, in spite of
all of claimant's symptoms and complaints and difficulties
in using his arm and hand, he had no definable loss of
motion in any joint and no definable neurologic deficits for
which an impairment rating could be given under the AMA
Guides to the Evaluation of Permanent Impairment, Third
Edition. The doctor then stated:
He does have some functional disabilities as it
regards the use of his right upper extremity.
These are mainly in the form of restrictions, or
things that he should avoid doing with his right
arm or hand. He should avoid continuous and/or
repetitive motion and use of the right arm and
hand. He should avoid continuous and/or
repetitive gripping and squeezing with the right
hand and fingers. He should avoid moderate to
heavy work activities with his right arm that
involve lifting, carrying, pushing, or pulling.
He should avoid work activities with his arm at or
above shoulder level. Unfortunately, there is no
way that I know of to put this in a percentage
form.
(Joint exhibit 33, page 1).
A. K. Agarwal, M.D., examined claimant on June 25,
1990. He found normal biceps and triceps reflexes, no motor
or sensory losses as well as full range of motion and
minimal tenderness in the right shoulder joint. He found
the right hand positive for Tinel's sign, wrist flexion
tests positive, and some diminished sensation along the
median nerve distribution. His impression was of mild
shoulder tendonitis and possible mild carpal tunnel
syndrome, although EMG studies had been negative. The
doctor opined that claimant had a five percent permanent
"disability" and loss of physical function of the right
upper extremity based on the evaluation of the shoulder and
wrist pain and minimal clinical findings.
John J. Dougherty, M.D., examined claimant on August
23, 1991. His findings are generally consistent with those
of Drs. Pechacek and Agarwal, although he opined that
claimant did not seem to have a carpal tunnel syndrome. He
noted pain in the right shoulder with possible impingement
type syndrome, tendonitis. The doctor opined that
claimant's only permanent impairment was apparently
associated with pain when doing something and that such
would not be more than five percent permanent partial
impairment of the right upper extremity. He then noted:
"[Permanent partial impairment] is primarily associated with
continued complaints of pain with reference to the right
shoulder, although his range of motion is good." (Exhibit
42, page 4).
Page 5
Pat Luse, D.C., examined claimant on May 1, 1991. His
diagnosis was of chronic right shoulder tendonitis with
crepitation; chronic right carpal tunnel syndrome; and
tremor in the right upper extremity, apparently related to
the other two conditions. The doctor opined that claimant
did receive an injury as a result of his repetitive motion
work. The doctor assessed an impairment rating as follows:
Sensory impairment rating:
1. Median
40 x 25% (grade) = 9% impairment to the hand
Range of Motion Evaluation: (given in degrees)
Extremities
Flexion 170 degrees = 0%
Extension 40 degrees = 1%
Abduction 180 degrees = 0%
Adduction 40 degrees = 0%
External Rotation 90 degrees = 0%
Internal Rotation 90 degrees = 0%
Other
Right shoulder crepitation moderate and constant during
range of motion
20% x 60 (shoulder) = 12% upper extremity.
Page 6
SUMMARY
Total impairment to the right upper extremity = 21%.
Total impairment to the whole person = 13%.
Dr. Luse indicated that his impairment rating standard
for muscle grades was the Manual of Orthopedic Surgery and
that his standard for other evaluations and values was the
Guides to the Evaluation of Permanent Impairment, American
Medical Association, Third Edition.
It is expressly found that whether claimant has carpal
tunnel syndrome is unconfirmed, although he has symptoms
and, on occasion, objective findings consistent with that
condition. It is also expressly found that claimant has
mild shoulder tendonitis with a possible impingement
syndrome. It is also expressly found that each doctor
rendering an impairment rating relates such to claimant's
shoulder condition or shoulder pain, even when the rating is
assigned as an upper extremity rating. Further, claimant's
restrictions, especially restrictions of not lifting above
the shoulder, are consistent with a disabling condition in
the shoulder. It is expressly found that claimant has a
shoulder condition which has produced functional impairment
in the shoulder and disability into the body as a whole.
conclusions of law
Our first consideration is whether claimant has
established a causal relationship between his work injury
and claimed permanent disability.
The injury must both arise out of and be in the course
of the employment. Crowe v. DeSoto Consol. School Dist.,
246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp.
405-406 of the Iowa Report. See also Sister Mary Benedict
v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and
Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555
(1958).
The words "out of" refer to the cause or source of the
injury. Crowe v. DeSoto Consol. School Dist., 246 Iowa 402,
68 N.W.2d 63 (1955).
All physicians by history relate claimant's hand,
wrist, arm and shoulder complaints to his work.
Chiropractic physician Luse expressly relates claimant's
physical conditions to his work. Claimant has established
the requisite causal connection between his cumulative
trauma with an injury date of January 5, 1989, and his
current right upper extremity and shoulder complaints.
We reach the fighting issue between the parties, the
nature of claimant's disability and the extent of such
disability.
Page 7
The right of an employee to receive compensation for
injuries sustained is statutory. The statute conferring this
right can also fix the amount of compensation payable for
different specific injuries. The employee is not entitled
to compensation except as the statute provides. Soukup v.
Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
Compensation for permanent partial disability begins at
termination of the healing period. Section 85.34(2).
Permanent partial disabilities are classified as either
scheduled or unscheduled. A specific scheduled disability
is evaluated by the functional method; the industrial method
is used to evaluate an unscheduled disability. Simbro v.
Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v.
Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v.
Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
When disabi whole in the shoulder by way of tendonitis, possible
impingement syndrome and pain. Given the presence of the
former two impairments, we need not reach defendants'
argument that pain alone would be insufficient to establish
impairment in the shoulder as a body as a whole injury.
Claimant's possible impingement syndrome and his recorded
tendonitis of the right shoulder are the primary factors
restricting his physical functioning and bearing on his
permanent partial impairment rating. Those conditions
demonstrate an actual impairment to the body as a whole.
Page 8
Claimant's disability, therefore, must be evaluated
industrially.
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
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.
Both Dr. Agarwal and Dr. Dougherty assign claimant a
five percent permanent partial impairment of the upper
extremity. Dr. Pechacek assigns no impairment in that he
does not believe one is possible under the AMA guides. Dr.
Luse assigns an impairment of 23 percent of the upper
extremity or 13 percent of the body as a whole. The
identical impairment ratings of Dr. Agarwal and Dr.
Dougherty are based on their similar objective findings on
evaluation of claimant. Dr. Pechacek's restrictions on
claimant appear to be restrictions that would be consistent
with the five percent permanent partial impairment rating to
the upper extremity assigned by Drs. Dougherty and Agarwal.
Dr. Luse's impairment rating is sufficiently inconsistent
with the ratings of other physicians to be suspect as
reflective of claimant's actual permanent partial
impairment. A five percent permanent partial impairment of
the upper extremity converts to a three percent permanent
partial impairment of the body as a whole. Claimant's
actual functional impairment on account of his work injury
is therefore minimal. Unfortunately, claimant's work
history is as a manual laborer and the record suggests,
given his limited education, his difficulties with reading
and writing, that those are the fields for which he is most
qualified. On the other hand, claimant's demeanor at
hearing, his reading skill level at hearing and his
articulateness at hearing suggests that claimant's problems
Page 9
in those areas relate more to a learning disability than to
an intellectual deficit. Claimant is a younger worker at 31
and it might well be in his own best interests if he were to
avail himself of programs currently available to assist the
learning disabled. Should he do so, one suspects that his
capacity for retraining into nonmanual labor fields would be
greatly increased. Claimant appears motivated to continue
to work in a light-duty capacity and the employer has
provided him with work within his restrictions.
Additionally, claimant's restrictions on lifting, grasping,
above shoulder lifting and reaching and on knife work are
sufficiently severe that they preclude him from much work,
both within defendants' facility and within the greater job
market. Additionally, while claimant is apparently making
more at this time than he in fact made in January 1989,
claimant is now working at a 3 bracket and not a 5 bracket
job. That fact suggests that, had not claimant sustained
his injury and not been restricted from working in knife
jobs on account of that injury, claimant would be earning
more now than he currently is earning. Further, claimant
has a loss of job mobility on a Attorney at Law
200 Home Federal Building
P.O. Box 3086
Sioux City, Iowa 51102
1803; 1803.1
Filed December 23, 1991
HELENJEAN M. WALLESER
before the iowa industrial commissioner
____________________________________________________________
:
FRED C. TOMPKINS, :
:
Claimant, :
:
vs. : File No. 946532
:
JOHN MORRELL & COMPANY, : 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; 1803.1
Claimant's condition consisting of hand, arm and shoulder
symptoms found to extend to the body as a whole even though
physicians' ratings were to the upper extremity. Lauhoff
Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986) followed in
that disability in the form of actual impairment to the body
as a whole was found, thereby permitting shoulder condition
to be rated industrially.
Claimant, 31-year-old packinghouse worker who had completed
ninth grade and had apparent learning disability as well as
at least average intelligence and who remained employed in
light-duty work with defendants, awarded 15 percent
permanent partial disability. Claimant was precluded from
heavy manual labor; had a permanent partial impairment of
three percent of the body as a whole; and, had gone from a 5
bracket to a 3 bracket job in the plant as a result of his
injury and light-duty restrictions.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RAYMOND LeDOUX, JR.,
Claimant,
vs.
File No. 946600
XERXES CORPORATION,
A P P E A L
Employer,
D E C I S I O N
and
CRUM & FORSTER,
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.
ISSUES
Those portions of the proposed agency decision pertaining to
issues not raised on appeal are adopted as a part of this
appeal decision. The issues raised by defendants on appeal
are: "The deputy erred in ruling that claimant sustained
his burden of proving a work-related injury."
Claimant states the following issues on cross-appeal:
I. Did LeDoux's injury arise out of and in the course of
employment?
II. Does LeDoux suffer an industrial disability, and if so
does the Odd Lot Doctrine apply?
III. Should penalty benefits be granted?
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed December 24, 1992 are adopted as set forth
below. Segments designated by asterisks (*****) indicate
portions of the language from the proposed agency decision
that have been intentionally deleted and do not form a part
of this final agency decision.
*****
Claimant worked for Xerxes from June 1988 until he was laid
off on August 1, 1989. His duties consisted of manual labor
in the assembly of fiber glass underground storage tanks.
At the time of the alleged injury, claimant was using fiber
glass resin and cloth to secure together large tank
sections. Heavy manual labor, including pushing and
lifting, was required along with crawling into the tanks
Page 2
through a 22 inch hole. Claimant was on a quota requiring
the completion of a tank every 16 hours of work.
On or about July 11, 1989, claimant injured his low back
while climbing into one of the tanks through the 22 inch
hole. Claimant slipped and fell onto his back after which
low back pain ensued. Claimant said that he reported the
injury to his supervisor and told him he was going to see
Otto Kruse, M.D., the next day. Dr. Kruse is the company
physician. Claimant indeed saw Dr. Kruse on July 12, 1989
complaining of back pain. Dr. Kruse did not mention any
precipitating cause in his office records. Dr. Kruse
referred claimant to an orthopedic surgeon, William
Pontarelli, M.D.
Defendants dispute the injury and management representatives
testified at hearing that they did not learn of the claim of
injury until there was a claim for benefits. However,
claimant's report to his supervisor and his immediate
treatment by the company physician is uncontroverted. *****
This injury arose out of and in the course of claimant's
employment with Xerxes.
Upon his examination of claimant, Dr. Pontarelli diagnosed
that claimant was suffering from a preexisting condition of
spondylolisthesis (hereinafter referred to as spondy), a
condition which causes instability of the L5 vertebra.
Treatment has, to date, remained conservative. However,
physicians have indicated that claimant may be a surgical
candidate in the future. After treatment, claimant was
released by Dr. Pontarelli to return to work on August 1,
1989 but only with activity restrictions against working in
a prolonged flexed or twisted position; against repetitive
lifting more than 20 times per day; and, against lifting
more than 20-25 pounds. It is found that claimant was then
laid off by Xerxes due to these work restrictions. Claimant
was told several times since that he could return to work
only if the restrictions were lifted.
The work injury of July 11, 1989 is found to be a cause of
an eight percent permanent impairment to the body as a
whole. ***** This work injury was also a cause of the work
restrictions imposed by Dr. Pontarelli. Dr. Pontarelli's
views as to the nature and extent of the spondy condition is
uncontroverted. With reference to causation, the finding of
work-relatedness is based upon the views of Dr. Pontarelli,
the primary treating physician and those of Richard Neiman,
a neurologist. Both stated that although the spondy
condition was preexisting, the work injury made the
condition symptomatic and necessitated work restrictions.
These views outweigh the views of another orthopedic
surgeon, Daniel McQuire, M.D., who stated that he could not
assign a permanent rating as a result of the July 11, 1989
injury. Dr. McQuire's deposition testimony was unconvincing
as he continually rambled in a confusing manner rather than
clearly and specifically answer the questions posed.
Claimant's current work restrictions prevent him from
returning to his former work or any other heavy manual labor
Page 3
work. Heavy manual labor is the type of work for which
claimant is best suited. Although claimant was able to
graduate from high school, he has a serious learning
disability adversely affecting his ability to read and
write. Claimant's only past work experience has been as a
dishwasher, stock clerk and carryout clerk in a grocery
store. Claimant is young at age 28 but his ability to adapt
to his disability is quite limited. Claimant has made a
considerable effort to secure replacement employment but
without success. Xerxes has refused to re-employ claimant
in his reduced capacity condition. This is clear evidence
of a substantial disability. Vocational counselors retained
in this case state that although claimant is not totally
disabled, his access to the labor market due to the activity
restrictions and his learning disability is severely
restricted.
From examination of all of the factors of industrial
disability, it is found that the work injury of July 11,
1989 was a cause of a 75 percent loss of earning capacity.
The reliance upon the views of Dr. McQuire in denying the
claims was reasonable. *****
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed December 24, 1992 are adopted as set forth
below. Segments designated by asterisks (*****) indicate
portions of the 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.
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).
In the case sub judice, claimant demonstrated by his
credible and uncontroverted testimony the work injury as
alleged.
II. As the claimant has shown that the work injury was a
cause a permanent physical impairment or limitation upon
Page 4
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 Railway 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., (Appeal Decision, February 28, 1985).
[Claimant is not an odd-lot employee. The vocational
rehabilitation evidence shows that claimant is capable of
performing some jobs. However, claimant's learning
disability does limit the number of positions claimant could
qualify for.
Claimant is relatively young at age 28. He has shown good
motivation to return to work. His employer has failed to
re-hire him due to the restrictions from the work injury.
Claimant's loss of earning capacity is 75 percent.] *****
Such a finding entitles claimant to 375 weeks of permanent
partial disability benefits as a matter of law under Iowa
Code section 85.34(2)(u) which is 75 percent of 500 weeks,
the maximum allowable number of weeks for an injury to the
body as a whole in that subsection.
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
order of reimbursement if he/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 party's stipulations rendered an
award of the requested expenses automatically due to the
finding that the condition upon which the claim was based
was work related.
IV. Iowa code section 86.13, allows for an award of
Page 5
penalty benefits for an unreasonable denial of a claim. In
this case, the initial diagnosis was spondy, a condition
unrelated to work. We also have a physician who supports
defendants' denial of benefits, Dr. McQuire. [Although Dr.
McQuire's opinion was rendered late in this case, it was
fairly debatable at all stages of the case whether
claimant's preexisting back condition was responsible for
his current condition, or whether the current condition was
caused by a work injury.] Therefore, claimant has not shown
entitlement to penalty benefits.
[Claimant's prior back condition was latent and did not
result in prior disability. Claimant's back did not produce
disability until his work injury and the resulting
restrictions. Apportionment is not appropriate.]
WHEREFORE, the decision of the deputy is affirmed.
ORDER
THEREFORE, it is ordered:
That defendants shall pay to claimant three hundred
seventy-five (375) weeks of permanent partial disability
benefits at a rate of one hundred fifty-two and 98/l00
dollars ($152.98) per week from August 1, 1989.
That defendants shall pay the medical expenses listed in the
prehearing report. Claimant shall be reimbursed for any 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.
That defendants shall pay accrued weekly benefits in a lump
sum and shall receive credit against this award for all
benefits previously paid.
That defendants shall pay interest on weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
That claimant and defendants shall share equally the costs
of the appeal including transcription of the hearing.
Defendants shall pay all other costs, including
reimbursement to claimant for any filing fee paid in this
matter.
That 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 June, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Thomas M. Wertz
Attorney at Law
4089 21st Ave. SW, Suite 114
Cedar Rapids, Iowa 52404
Page 6
Mr. Harry W. Dahl
Attorney at Law
974 73rd Street, Suite 16
Des Moines, Iowa 50312
5-1803
Filed June 30, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RAYMOND LeDOUX, JR.,
Claimant,
vs.
File No. 946600
XERXES CORPORATION,
A P P E A L
Employer,
D E C I S I O N
and
CRUM & FORSTER,
Insurance Carrier,
Defendants.
____________________________________________________________
5-1803
Non-precedential, extent of disability case.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
RAYMOND LeDOUX, JR., :
:
Claimant, :
:
vs. :
: File No. 946600
XERXES CORPORATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CRUM & FORSTER, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Raymond
Ledoux, Jr., claimant, against Xerxes Corporation, employer,
hereinafter referred to as Xerxes, and Crum & Forster,
insurance carrier, defendants, for workers' compensation
benefits as a result of an alleged injury on July 12, 1989.
On October 29, 1992, a hearing was held on claimant's
petition and the matter was considered fully submitted at
the close of this hearing. At hearing the alleged injury
date was amended without objection to July 11, 1989.
The parties have submitted a prehearing report of con
tested issues and stipulations which was approved and
accepted as a part of the record of this case at the time of
hearing. The oral testimony and written exhibits received
during the hearing are set forth in the hearing transcript.
According to the prehearing report, the parties have
stipulated to the following matters:
1. An employee-employer relationship existed between
claimant and Xerxes at the time of the alleged injury.
2. Claimant is not seeking additional temporary total
or healing period benefits in this proceeding.
3. If an injury is found to have caused permanent
disability, the type of disability is an industrial disabil
ity to the body as a whole.
4. If permanent partial disability benefits are
awarded, they shall begin as of August 1, 1989.
5. At the time of injury claimant's gross rate of
weekly compensation was $226.31; he was married; and he was
entitled to two exemptions. Therefore, claimant's weekly
Page 2
rate of compensation is $152.98 according to the Industrial
Commissioner's published rate booklet for this injury.
6. It was stipulated that the providers of the
requested medical expenses would testify as to their reason
ableness and defendants are not offering contrary evidence.
It was also agreed that the medical bills submitted by
claimant at the hearing are causally connected to the medi
cal condition upon which the claim herein is based but that
the issue of their causal connection to any work injury
remains an issue to be decided herein.
ISSUES
The parties submitted the following issues for determi
nation 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 disabil
ity benefits;
III. The extent of claimant's entitlement to medical
benefits; and,
IV. The extent of penalty benefits to which claimant
may be entitled.
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 (voice, gestures, expres
sions, etc.) while testifying, claimant is found credible.
Claimant worked for Xerxes from June 1988 until he was
laid off on August 1, 1989. His duties consisted of manual
labor in the assembly of fiber glass underground storage
tanks. At the time of the alleged injury, claimant was
using fiber glass resin and cloth to secure together large
tank sections. Heavy manual labor, including pushing and
lifting, was required along with crawling into the tanks
through a 22 inch hole. Claimant was on a quota requiring
the completion of a tank every 16 hours of work.
On or about July 11, 1989, claimant injured his low
back while climbing into one of the tanks through the 22
inch hole. Claimant slipped and fell onto his back after
which low back pain ensued. Claimant said that he reported
the injury to his supervisor and told him he was going to
see Otto Kruse, M.D., the next day. Dr. Kruse is the com
pany physician. Claimant indeed saw Dr. Kruse on July 12,
1989 complaining of back pain. Dr. Kruse did not mention
any precipitating cause in his office records. Dr. Kruse
Page 3
referred claimant to an orthopedic surgeon, William
Pontarelli, M.D.
Defendants dispute the injury and management represen
tatives testified at hearing that they did not learn of the
claim of injury until there was a claim for benefits.
However, claimant's report to his supervisor and his immedi
ate treatment by the company physician is uncontroverted.
Given claimant's credibility, a work injury was found to
have occurred. This injury arose out of and in the course
of claimant's employment with Xerxes.
Upon his examination of claimant, Dr. Pontarelli diag
nosed that claimant was suffering from a pre-existing condi
tion of spondylolisthesis (hereinafter referred to as
spondy), a condition which causes instability of the L5 ver
tebra. Treatment has, to date, remained conservative. How
ever, physicians have indicated that claimant may be a
surgical candidate in the future. After treatment, claimant
was released by Dr. Pontarelli to return to work on August
1, 1989 but only with activity restrictions against working
in a prolonged flexed or twisted position; against repeti
tive lifting more than 20 times per day; and, against lift
ing more than 20-25 pounds. It is found that claimant was
then laid off by Xerxes due to these work restrictions.
Claimant was told several times since that he could return
to work only if the restrictions were lifted.
The work injury of July 11, 1989 is found to be a cause
of an eight percent permanent impairment to the body as a
whole. However, what is more important to an industrial
disability case is that this work injury was also a cause of
the work restrictions imposed by Dr. Pontarelli. Dr.
Pontarelli's views as to the nature and extent of the spondy
condition is uncontroverted. With reference to causation,
the finding of work-relatedness is based upon the views of
Dr. Pontarelli, the primary treating physician and those of
Richard Neiman, a neurologist. Both stated that although
the spondy condition was pre-existing, the work injury made
the condition symptomatic and necessitated work restric
tions. These views outweigh the views of another orthopedic
surgeon, Daniel McQuire, M.D., who stated that he could not
assign a permanent rating as a result of the July 11, 1989
injury. Dr. McQuire's deposition testimony was unconvincing
as he continually rambled in a confusing manner rather than
clearly and specifically answer the questions posed.
Claimant's current work restrictions prevent him from
returning to his former work or any other heavy manual labor
work. Heavy manual labor is the type of work for which
claimant is best suited. Although claimant was able to
graduate from high school, he has a serious learning dis
ability adversely affecting his ability to read and write.
Claimant's only past work experience has been as a dish
washer, stock clerk and carryout clerk in a grocery store.
Claimant is young at age 28 but his ability to adapt to his
disability is quite limited. Claimant has made a consider
able effort to secure replacement employment but without
success. Xerxes has refused to reemploy claimant in his
reduced capacity condition. This is clear evidence of a
Page 4
substantial disability. Vocational counselors retained in
this case state that although claimant is not totally dis
abled, his access to the labor market due to the activity
restrictions and his learning disability is severely
restricted.
From examination of all of the factors of industrial
disability, it is found that the work injury of July 11,
1989 was a cause of a 75 percent loss of earning capacity.
The reliance upon the views of Dr. McQuire in denying
the claims was reasonable and not a negligent claims prac
tice given the diagnosis of spondy as the cause.
CONCLUSIONS OF LAW
I. Claimant has the burden of proving by a prepon
derance 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).
In the case sub judice, claimant demonstrated by his
credible and uncontroverted testimony the work injury as
alleged.
II. 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 dis
abilities, 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 earn
ing capacity resulting from the work injury. Diederich v.
Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899
(1935). A physical impairment or restriction on work activ
ity may or may not result in such a loss of earning capac
ity. 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, immedi
ately after the injury and presently; the situs of the
injury, its severity and the length of healing period; the
Page 5
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., (Appeal
Decision, February 28, 1985).
In the case sub judice, the odd lot doctrine was not
raised. It was found that claimant suffered a 75 percent
loss of his earning capacity as a result of the work injury.
Such a finding entitles claimant to 375 weeks of permanent
partial disability benefits as a matter of law under Iowa
Code section 85.34(2)(u) which is 75 percent of 500 weeks,
the maximum allowable number of weeks for an injury to the
body as a whole in that subsection.
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
order of reimbursement if he/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).
Page 6
In the case at bar, the party's stipulations rendered an
award of the requested expenses automatically due to the
finding that the condition upon which the claim was based
was work-related.
IV. Iowa code section 86.13, allows for an award of
penalty benefits for an unreasonable denial of a claim. In
this case, the initial diagnosis was spondy, a condition
unrelated to work. We also have a physician who supports
defendants' denial of benefits, Dr. McQuire. Therefore,
claimant has not shown entitlement to penalty benefits.
ORDER
1. Defendants shall pay to claimant three hundred
seventy-five (375) weeks of permanent partial disability
benefits at a rate of one hundred fifty-two and 98/l00
dollars ($152.98) per week from August 1, 1989.
2. Defendants shall pay the medical expenses listed in
the prehearing report. Claimant shall be reimbursed for any
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. Defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against this award for all
benefits previously paid.
4. Defendants shall pay interest on weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
5. Defendants shall pay the costs of this action pur
suant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
6. Defendants shall file activity reports on the pay
ment of this award as requested by this agency pursuant to
rule 343 IAC 3.1.
Signed and filed this ____ day of December, 1992.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Page 7
Copies To:
Mr. Thomas M. Wertz
Attorney at Law
4089 21st Avenue SW
Suite 114
Cedar Rapids, Iowa 52404
Mr. Harry W. Dahl
Attorney at Law
974 73rd Street Suite 16
Des Moines, Iowa 50312
5-1803
Filed December 24, 1992
LARRY P. WALSHIRE
before the iowa industrial commissioner
____________________________________________________________
:
RAYMOND LeDOUX, JR., :
:
Claimant, :
:
vs. :
: File No. 946600
XERXES CORPORATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CRUM & FORSTER, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
Non-precedential, extent of disability case.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
THOMAS R. KEIL, :
:
Claimant, :
: File No. 951320
vs. : 946624
:
BRITWELL, INC., d/b/a :
ATLANTIC CARE CENTER, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
WAUSAU INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
This case came on for hearing on January 27, 1992, at
Council Bluffs, Iowa. This is a proceeding in arbitration
wherein claimant seeks temporary permanent disability
benefits and medical benefits. Any issue as to the extent
of permanent partial disability benefits has been
bifurcated. The alleged injuries occurred on October 28,
1989 and February 4, 1990. The record in the proceedings
consists of the testimony of the claimant; Roberta Keil,
claimant's mother; Marylyn Cooley; Clara Peterson; and,
joint exhibits 1 through 34.
issues
The issues for resolution as to both cases are:
1. Whether an injury arose out of and in the course of
claimant's employment;
2. Whether there is any causal connection as to
claimant's temporary permanent disability and the respective
injuries;
3. Whether claimant is entitled to 85.27 benefits. In
particular, causal connection.
Page 2
findings of fact
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant is a 24-year-old high school graduate who
indicated he was a slow learner in school and went to a
special resource center. He related his work history.
Because the issue of permanent disability has been
bifurcated, the undersigned will not go into detail on facts
that will be pertinent to that issue unless otherwise
necessary.
After going to the vocational rehabilitation center in
Des Moines in the spring of 1986 because of having a hard
time finding a job, claimant was placed with defendant
employer and worked as a dishwasher, helped serve meals and
cleaned up after meals.
Claimant related he had back, leg and knee problems in
1985 which resulted from his work as a janitor, but he
contends it was nothing serious.
Claimant related an incident in September of 1986 in
which he hurt his lower back and received one month of
workers' compensation. He said he received no permanent
partial disability benefits as a result of that injury.
Claimant was eventually moved from a dishwasher
position to a position of a dietary aide. Joint exhibit 22
sets out the job description. Joint exhibits 20 and 21 set
out the tasks involved with that job.
Claimant testified that on October 28, 1989, while at
work serving the residents their meals, a patient pushed a
chair into claimant's low back causing pain. He said a
nurse saw the incident but he told no one on October 28,
1989 because of fear of losing his job. After work, he went
to his mother's house and had a back spasm and fell down.
He was taken to the hospital by ambulance and was treated by
a doctor. He returned to work one week later on November 7,
1988. Joint exhibit 24 is the actual report signed by
Marylyn Cooley, claimant's supervisor. It indicated on page
2 of the report that she talked to claimant's mother who
told her claimant's hospitalization was due to stress rather
than an injury.
On February 4, 1990, claimant said he went to the
storeroom to get a carton of eggnog. He bent over to get it
and then stood back up and started walking out of the room
when a back spasm occurred and he fell down. He said his
leg gave out. Claimant was taken to the hospital by
ambulance. He was released to work with a 10 pound
restriction. Defendant employer did not allow claimant to
return to work with the weight restriction. Claimant said
defendant employer had a resignation form for him to sign
but he did not sign it. Claimant said the eggnog container
he picked up weighed 22 ounces. In fact, the carton was
presented in court and as shown on the carton, it weighed
one pound and 0.6 ounces (470 grams).
Page 3
Claimant first saw Louis F. Tribulato, M.D., on
February 23, 1990 (Jt. Ex. 12) and saw Mark Johnson, M.D.,
on February 26, 1990. Claimant emphasized he was truthful
when he gave Dr. Tribulato his medical history. Claimant
was referred to Tribulato's notes that indicate claimant has
had back trouble since his 1986 injury.
Claimant said he returned to work on April 10, 1990, at
a split shift, four hours at a time, eight hours per day.
He had a 15 pound weight restriction at that time.
On April 12, 1990, claimant was picked up after the
first shift by his mother and taken to his friend's house.
While sitting on the sofa, claimant again had a back spasm.
He indicated he did not fall or have any injuries at work
that day. Claimant was again taken to the hospital.
Claimant has not worked since that date.
There was a reference and considerable questioning of
claimant as to his July 7, 1986 job application in which
claimant indicated he had a prior back injury and was on a
25 pound weight limit and had been trained on proper lifting
procedures (Jt. Ex. 18). Claimant could not recall who gave
him this restriction. There is no question that claimant
believes he was under this restriction.
Claimant acknowledged that on August 11, 1989, he wrote
he had a 25 pound weight restriction. This occurred when
the Atlantic Care Center was bought by Britwell, Inc., and a
new application had to be filled out.
Roberta Keil, claimant's mother, acknowledged claimant
fell downstairs as a janitor in 1985 and the doctor thought
claimant had spondylolisthesis, which could be a birth
defect. Mrs. Keil indicated to her knowledge no one placed
any weight restrictions on claimant prior to October 28,
1989, and the only restriction was that claimant do a split
shift, four hours in the morning and four in the late
afternoon. She said that between March 1987 and October
1989, claimant was not having any back or leg problems that
she knew of except that he wanted to sleep on a heating pad.
Mrs. Keil acknowledged that she went to the hospital on
October 28, 1989, when claimant was taken there by
ambulance. She followed the ambulance to the hospital. She
said claimant occasionally took Motrin and Flexeril between
1986 and 1989.
Mrs. Keil said since claimant's surgery, she isn't
satisfied with her son's progress. He has not been released
to return to work. She said claimant's next appointment is
on February 24, 1991. Mrs. Keil acknowledged that she did
talk to Marylyn Cooley after claimant's October 28, 1989
injury (Jt. Ex. 18). She has also acknowledged she talked
to the emergency room personnel pursuant to claimant's
February 1990 incident. She said claimant did not say he
had a work injury.
Marylyn Cooley testified she has worked for defendant
Page 4
employer three years as a supervisor in the dietary services
department. She oversees the kitchen and dietary aides.
She indicated her investigation report relied on other
reports as she did not see the alleged incident. She said
the incident was reported as occurring at around noon which
is dinner time at the care center. She said claimant's
mother called her after the incident on October 28, 1989 and
said claimant's hospitalization was due to stress rather
than injury.
Ms. Cooley said claimant worked a split shift on April
12, 1990, and did not report any work injury on that day.
She indicated the generic job description and times worked
are guides and are not etched in stone. It is obvious to
the undersigned that notwithstanding the job description and
the hours set out for the various shifts, the claimant did
work at times through the noon hour on certain occasions.
Ms. Cooley said she was not given a 25 pound weight
restriction for claimant but emphasized that when she came
to work, claimant was on a work restriction that he put on
his application (Jt. Ex. 18).
Clara Peterson has worked for defendant employer for
three years as a cook. She knows claimant and was present
on February 4, 1990, when claimant picked up the container
of powdered eggnog. Claimant then started walking and the
next minute she said claimant was lying on the floor with
pain.
Ronald K. Miller, M.D., an orthopedic surgeon,
testified on April 10, 1991, through his deposition that he
first saw claimant on October 15, 1985, upon referral from a
Dr. Wille. Dr. Miller said claimant's x-rays revealed a
first degree spondylolisthesis with a defect in the spine,
particularly in the pars interarticularis. Dr. Miller said
claimant complained of low back pain, headaches and weakness
in his arms and legs (Jt. Ex. 32, p. 7). He said claimant's
exam did not show a good reversal of his lumbar curve and
his right and left lateral were restricted (Jt. Ex. 32, p.
9). Dr. Miller described claimant's spondylolisthesis as
progressive. He prescribed very conservative treatment at a
back care program which teaches one how to lift properly,
etc.
Dr. Miller next saw claimant on January 29, 1986, in
which claimant had right knee and leg problems. Claimant
indicated to him his right leg gave out when he was carrying
a tray full of coffee and cookies into the living room (Jt.
Ex. 32, p. 14). He indicated claimant was very tender to
any type of touching on his thigh or leg. Claimant related
his problems with his leg giving out (Jt. Ex. 32, p. 15).
Claimant was admitted to the hospital on January 29,
1986. He was seen by a neurologist. Claimant was
discharged on February 7, 1986.
Dr. Miller said that on March 18, 1986, claimant was
doing better even though he was having intermittent cramps
in his right leg. He has not seen claimant since (Jt. Ex.
Page 5
32, p. 20). After reviewing the x-rays and medical records
and notes, Dr. Miller opined claimant had an 8 percent
impairment to his body as a whole on March 18, 1986. The
doctor used the word disability but the undersigned believes
he means impairment (Jt. Ex. 32, pp. 25 and 26). The doctor
said claimant basically looked good and had a negative
examination on this date (Jt. Ex. 32, p. 28). On
cross-examination, the doctor indicated his 8 percent could
be reduced to 5 or 6 percent (Jt. Ex. 32, p. 31).
Dr. Miller explained in more detail and concluded
claimant had a bilateral defect from his spine slippage in
the L4-5 area (Jt. Ex. 32, pp. 2 and 35). Jt. Ex. 8 is the
hospital x-rays showing claimant's diagnosis on January 30,
1986 as spondylolisthesis grade 1 with spondylolysis.
Joint exhibit 9 indicates that on March 17, 1986,
claimant didn't have pain unless he tried to lift too much
at home. Joint exhibit 10 shows claimant injured himself in
October of 1986 when he pushed back some boxes that were
toppling on him.
Joint exhibit 15 reflects claimant's hospital records
when he was admitted on April 12, 1990. The record shows
claimant has had back pain since 1986. From the testimony,
it appears this history information was given by claimant
and his mother. There is no contention claimant incurred a
work injury on that date.
Joint exhibit 16 shows claimant's submission to the
hospital on July 30, 1990, at which time the x-rays and a CT
scan showed claimant had a grade 2 spondylolisthesis.
Claimant had a decompression laminectomy with lateral mass
fusion or spondylolisthesis L5-S1 on July 31, 1991 (Jt. Ex.
17).
Michael J. Morrison, M.D., wrote on January 22, 1992,
after doing an independent evaluation:
It appears that he was suffering from a
symptomatic spondylolisthesis at L5-S1 in 1986.
In regards to the injury of October of 1989 and
February of 1990, the description that was given
by the patient and the medical records obtained
appear to relate that these were of minimal strain
or injury to his lower back as described. To what
degree these two episodes aggravated his lower
back would have to be strictly based on his
accountability of increased pain which is a
subjective interpretation. Again, it would be my
impression that his spondylolisthesis at L5-S1 was
already a symptomatic condition for him back in
1986 and to what involvement these two episodes at
work had in relationship to that symptomatic
spondylolisthesis that already existed would have
to be based strictly on his accountability of
increased pain as a result of these two incident.
(Jt. Ex. 17)
Page 6
Joint exhibit 1, page 1, reflects a letter from Dr.
Tribulato in which he felt both incidents, October 28, 1989
and February 5, 1990, aggravated claimant's
spondylolisthesis. It is obvious the doctor meant February
4, 1990.
In a letter to claimant's attorney on October 18, 1990,
the doctor wrote, "He does have loss of control but this is
only by history. He said his leg gives out frequently but
this is common in people that do have symptomatic
spondylolisthesis...."
In a letter to Dr. Johnson on February 26, 1990, Dr.
Tribulato wrote:
He asked if this was job related and I told him
I thought it was since he has been having trouble
with his initial episode in 1986. Since he has
been having these flare-ups since than I would
judge it is all related to the episode of
September 1986 when his spondylolisthesis
undoubtedly became symptomatic.
(Jt. Ex. 1, p. 20)
It appears to the undersigned that the doctor relates
claimant's problems to a September 1986 incident when
claimant's spondylolisthesis became symptomatic. This seems
to possibly contradict the doctor's January 24, 1992 letter
(Jt. Ex. 1, p. 1).
Claimant contends he incurred injuries on October 28,
1989 and February 4, 1990, that arose out of and in the
course of his employment. The record shows claimant has had
back problems for many years with it becoming symptomatic in
1986. He had a diagnosis of spondylolisthesis in September
1986, at which time he also had a work injury (Jt. Ex. 1, p.
35).
Dr. Tribulato related claimant's flare-ups to his
September 1986 episode (Jt. Ex. 1, p. 20). Dr. Morrison
said claimant's spondylolisthesis L5-S1 was already
symptomatic in 1986. He could not causally connect
claimant's current condition to either the October 1989 or
February 1990 injury. Dr. Tribulato seems to possibly
contradict himself (Jt. Ex. 1, pp. 1 and 20). At most, it
could possibly be determined that the October 1989 and
February 1990 incidents aggravated claimant's preexisting
condition, but the claimant has failed in his burden to
prove there was a material aggravation which worsened and
lighted up claimant's preexisting condition.
The evidence shows any little episode could trigger an
asymptomatic spondylolisthesis condition to become
symptomatic. The October 1989 incident seems to be so
trifle. The February 4, 1990 was even more insignificant.
As the doctors say, walking can even cause a flare-up of a
spondylolisthesis condition. Claimant walked home after his
February 4, 1990 incident. He was at home when his spasm
occurred after his October 28, 1989 episode at work.
Page 7
Claimant was sitting on the sofa at his friend's on April
12, 1990, when he had a flare-up and was taken to the
hospital. It appears claimant had a permanent impairment
from his September 1986 injury. Claimant wrote on his job
application with defendant employer that he had a 25 pound
weight limit restriction. After extensive questioning, the
claimant ultimately said he did not know where that
restriction came from. It is apparent claimant thought he
did have a 25 pound weight restriction and it is obvious it
sure did not help claimant to get a job by putting that on
an application if he did not think it was true.
The undersigned sees no reason to further dwell on this
arising out of and in the course of claimant's employment
issue as to these respective cases.
The undersigned finds claimant did not incur any injury
that arose out of and in the course of his employment on
October 28, 1989. There is no causal connection between
claimant's complaint and medical condition and his temporary
disability and medical expenses incurred.
The undersigned finds claimant did not incur an injury
that arose out of and in the course of his employment on
February 4, 1990, and that there is no causal connection
between claimant's complaint and medical condition and any
temporary disability or medical expenses claimant incurred
from said alleged injury.
The undersigned finds claimant had a preexisting
condition and permanent impairment that was not materially
aggravated, lighted up or worsened by any October 28, 1989
or February 4, 1990 alleged injuries.
conclusions of law
Claimant has the burden of proving by a preponderance
of the evidence that he received injuries on October 28,
1989 and February 4, 1990, which arose out of and in the
course of his employment. 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).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154
N.W.2d 128 (1967).
While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, the mere
existence at the time of a subsequent injury is not a
Page 8
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900,
908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a
preexisting condition or disability that is 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, 815
(1962).
The Iowa Supreme Court cites, apparently with approval,
the C.J.S. statement that the aggravation should be material
if it is to be compensable. Yeager v. Firestone Tire &
Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S.
Workmen's Compensation sec. 555(17)a.
It is further concluded that:
Claimant did not incur an injury on October 28, 1989
that arose out of and in the course of his employment.
Claimant's alleged medical condition or any impairment
were not causally connected to an alleged work injury on
October 28, 1989.
Claimant is not entitled to any temporary total
disability or medical benefits as a result of an alleged
October 28, 1989 injury.
Claimant did not incur an injury on February 4, 1990
that arose out of and in the course of his employment.
Claimant's alleged medical condition and any impairment
are not causally connected to claimant's alleged work injury
on February 4, 1990.
Claimant is not entitled to any temporary total
disability benefits or medical benefits as a result of an
alleged February 4, 1990 work injury.
Page 9
order
THEREFORE, it is ordered:
Regarding claimant's October 28, 1989 alleged injury
(File No. 951320), claimant takes nothing further from these
proceedings.
Regarding claimant's alleged February 4, 1990 injury
(File No. 946624), claimant takes nothing further from these
proceedings.
That the files shall be returned to docket for
determination of the bifurcated issue.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
Signed and filed this ____ day of February, 1992.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr John A Rodenburg
Attorney at Law
100 Park Bldg
500 Willow Ave
Council Bluffs IA 51503
Mr Paul F Prentiss
Mr John M Burns
Attorneys at Law
8712 W Dodge Rd Ste 401
Omaha NE 68114
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ROBIN WHITE, :
:
Claimant, :
:
vs. :
: File No. 946948
SEARS MANUFACTURING, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
ITT HARTFORD INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on December 9, 1993, at
Davenport, Iowa. This is a proceeding in arbitration
wherein claimant seeks compensation for permanent partial
disability benefits as a result of an alleged injury
occurring on January 16, 1990. The record in the proceeding
consists of the testimony of the claimant, Sherry Rodriguez
and Richard Hauk; and, joint exhibits 1 through 4.
ISSUES
The issue for resolution is the nature and extent of
claimant's permanent disability and entitlement to
disability benefits.
FINDINGS OF FACT
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant is a 35-year-old who completed the tenth grade
and has obtained her GED but has no further education.
Claimant described her work history before beginning
her work for defendant employer on November 13, 1987.
Claimant's position with Sears was as
maintenance-janitorial and her duties included cleaning
offices, mopping, dumping garbage, dusting and sweeping.
She indicated it also involved stooping and bending and
dusting lower areas, cleaning toilets, pushing, vacuum
cleaning, pulling, lifting, recycling boxes and carrying
things up and down stairs. Claimant was responsible for
three of the floors including the lunch room. Claimant felt
her duties were excessive. Claimant indicated she usually
began working at 5:00 a.m. and no later than 6:00 a.m. and
Page 2
she started before most people came to work around 7:00.
Claimant indicated she was always in a rush and didn't have
enough time to get everything done. She indicated she liked
her job and received a lot of compliments as to the good job
she did.
Claimant explained the nature of her injury which she
indicated began on January 16, 1990, as she was working.
She said her leg started bothering her and got worse as the
day went on resulting in pain in her buttocks and thigh.
She first went to a chiropractor and was prescribed heel
cups and received an adjustment and ultrasound and x-rays.
Claimant then went to see John E. Sinning, Jr., M.D.,
around March 1990 because she was not getting better. In
fact, she was getting worse. He sent claimant to Iowa City
because he thought it might be a disc problem. Claimant
then indicated that Sears decided not to follow up on the
care the University of Iowa suggested and on December 5,
1990, he sent claimant to a Dr. Motto. Claimant was then
sent to work hardening and given weight restrictions by Dr.
Motto.
When claimant returned to work after her January 16,
1990 injury, she was put back on her regular job. She was
to do only what she could but was not to overdo it.
Claimant indicated if she did not overdo her work, then the
job wouldn't get done. Claimant said her health was very
good prior to January 16, 1990. She indicated her current
injury affects her ability to stand, her posture, her
sitting for a long time, her knee and pushing puts pressure
on her back. Claimant said she doesn't sleep well at night
and hasn't jogged or run since her injury. Squatting or
putting pressure on her back hurts. She cannot participate
in sports, can't do yard work, mowing and she doesn't vacuum
anymore. Her social life has been affected. She has also
gained some weight. She relates to the fact she is no
longer as active as she was before. Claimant again
emphasized that when she did return to work she felt
threatened because of the employer's attitude and felt that
she had better get back to work without complaints. On
October 23, 1991, she said her problems flared up and she
went to the doctor again. She said she had frequent
flare-ups. When claimant returned to work her job didn't
change even though there were restrictions at first and she
had to do her job duties even though light duty was
required. She said Sears doesn't have light duty and she
was actually back to her regular job.
The question was asked as to her employer providing
help for her and she said they didn't help her much because
they were on restricted duty, also. She mentioned a Linda
who was also on restricted duty that was supposed to help
her. Claimant said she signed an agreement to stay on light
duty and that she tried to stay on light duty within her
restrictions. She felt the employer tried to eliminate her
job and subcontract it out eventually in 1993. Claimant
then related a couple of incidents that led to her
discharge, one being that when she complained of her back
hurting she was told that if she left it would go against
Page 3
her work record. Claimant indicated that she went home to
rest because she hurt and called back to the employer
needing to see the doctor. She indicated Sears set up an
appointment the following day.
Claimant did not go to work the next day because she
was going to the doctor first. She contends she wasn't told
to show up for work before she went to the doctor even
though the employer takes the position that she was told she
must come to work before she goes to her doctor appointment.
She said her back was still bothering her. Claimant said
that the doctor gave her an excuse to take to her employer
for both days. In other words, the day of the appointment
and the prior day, but the company put points against the
claimant anyway. Claimant indicated she took pills that
morning and this resulted in her oversleeping. Because of
these pills, she didn't call the employer in time to tell
them she wasn't coming in first. Claimant said she then had
a meeting with the defendant employer and two days after
said meeting, she was discharged from work.
Claimant contends her attendance record was good before
her back injury and that any absences were basically doctor
appointments or incidents relating to her back. Claimant
said she wants to work and would like to work for Sears.
She said she has looked for jobs and had a small list when
she was in the courtroom. She indicated she needed to
contact two people per week for unemployment benefits.
Claimant was making $9.87 per hour at Sears and was
able to obtain some overtime. She related she understood
her impairment rating was 8 percent and she understood what
her restrictions were.
Claimant acknowledged that she incurred another injury
on October 23, 1991 while carrying computer boxes. She
settled this case with another insurance company. She
acknowledged that this incident in 1991 made her condition
worse and her entire leg would become numb. Claimant
acknowledged that she is making more money now after this
January 1990 injury than she was before that injury. She
would like to work again at Sears within her restrictions
whether in the same job or another job.
Richard Hauk testified that he has worked for Sears
since September 20, 1992 as a clerk in the office handling
accident cases, etc. He said he had reviewed claimant's
medical and accident reports and that after claimant's
January 16, 1990 injury she had returned to her regular job.
Sherry M. Rodriguez testified she works for Sears and
is the employees relations manager for the last six or seven
years. She indicated she worked more with the discharge and
unemployment phase and usually didn't deal much with
workers' compensation claims. She was working for Sears
when claimant was terminated. She described the four steps
that claimant went through in which claimant's termination
occurred on the fourth step. She indicated that claimant
had two marks on her record for failure to call in and one
for attendance. She indicated the union grieved her
Page 4
discharge and ultimately in the process the union dropped
the grievance but she did not know why.
Claimant filed for unemployment and initially received
it but then defendant employer appealed it because they felt
the discharge was justified and claimant's leaving their
employment was willful misconduct.
Ms. Rodriguez acknowledged that when claimant was
discharged, she was still on restricted duty and there were
certain weight restrictions. Ms. Rodriguez said that
claimant was supposed to work within her restrictions. She
said Sears doesn't have a job within claimant's
restrictions. She said they did have a light duty program
that is temporary and that sooner or later a decision would
have to be made whether one could continue in that light
duty program. She at first didn't think claimant had
restrictions at the time of her termination but then on
questions asked by the undersigned to clarify his notes or
records, she indicated she was not sure. She was asked
concerning Sear's concern about how long claimant's
restrictions were going to continue. There is reference to
joint exhibit 2 as to a July 20, 1992 letter in which the
employer was concerned as to the length of time claimant was
going to be on light duty and if it was going to stretch out
too long. The October 1, 1992 letter also indicates the
employer's concern as to claimant's light duty work but that
she continues to perform the same satisfactory. (Jt. Ex. 2)
Ms. Rodriguez said that it was not in her area of expertise
or work concerning workers' compensation matters so she
couldn't address this issue. Ms. Rodriguez did say that if
claimant had permanent work restrictions, her job wouldn't
have been eliminated and they would have tried to find work
for claimant. The undersigned does not believe this to be
true considering the exhibits, testimony and demeanor of
witnesses.
Claimant was discharged on January 18, 1993. This
incident was explained by Ms. Rodriguez that claimant had
complaints of back pain and came to the office and wanted to
go home. She indicated that claimant could not go unless
she went to the doctor and if she did go home she wouldn't
be excused. Claimant then left work and went home and then
called defendant employer and asked if she could stay home.
She said she would go see a doctor but couldn't get in until
the next day. The employer then indicated to the claimant
that she must come in the next morning before she went to
the doctor appointment which was to be at 9:00 or 10:00 a.m.
Claimant did not come in before going to the doctor. Ms.
Rodriguez also indicated that the claimant had told the
doctor the wrong thing. She understood that claimant
contended she was doing heavy lifting. The doctor then
excused her both days. Sears said they had two people to
help claimant and claimant apparently failed to disclose
this to the doctor.
Ms. Rodriguez said that Sears has subcontracted some
duties but still has someone to do some of claimant's former
Page 5
duties. She wasn't sure when this subcontracting of
janitorial services occurred. She wasn't sure how many more
do this janitorial service now but she indicated it was more
than one.
Ms. Rodriguez acknowledged that if claimant had not
been terminated, she would still be working at Sears.
The claimant then was put on the stand again in
rebuttal. She said she heard Ms. Rodriguez testify. She
said she didn't recall Ms. Rodriguez telling her she had to
report to work before going to the doctor as the doctor
appointment was at 9:00 or 10:00 in the morning and that she
told Ms. Rodriguez she was having back pain. Claimant said
she felt she didn't have to come in and the doctor ended up
excusing her which was after she had seen the doctor.
Claimant contended she didn't give the doctor false
information. She said she was trying to stay within her
restrictions but she was doing the same things she was
before her injury. She didn't have help on the day she was
supposed to, namely, January 18, 1991, and said that this
caused her back to flare up. Claimant acknowledged that her
work release did not come until after her appointment.
Claimant indicated that a Miss Cisco was not helping her and
that she had a tendon cut and couldn't help. She also
indicted her mother was not able to help her. It appeared
her mother was working for Sears at that same time.
Ms. Rodriguez was then put on the witness stand in
rebuttal to claimant's rebuttal testimony and indicated that
on January 18, 1993, claimant still had light duty
assistance. Ms. Rodriguez said Ms. Cisco had a finger
stitch on one hand but could do dusting with her good hand.
It appears to the undersigned that the defendant
employer wanted to somehow find a reason to discharge
claimant.
Joint exhibit 1 is the records of Orthopaedic Surgery
Associates. A December 20, 1991 report of Dr. Sinning
reflects that claimant has an 8 percent permanent impairment
of claimant's body as a whole. He also indicated that
claimant should be able to handle 10 to 15 pounds over her
head for the maximum lift of 30 pounds and she should be
able to lift 20 to 33 pounds from the floor up to knuckle
height with a maximum lift of 60 pounds. He didn't have any
of claimant's work requirements but indicated on what he did
know that she would be allowed to return to her regular job
as he believed she could handle it.
There is no question as to causal connection as to
claimant's permanent impairment and her January 16, 1990
work injury and the aggravation of the same occurring
October 23, 1991. Also, the medical records support the
fact that claimant has a herniated intervertebral disc with
resultant diminished ankle jerk and a sensation over the
back of her thigh S1 nerve root.
The August 21, 1992 notes of Dr. Sinning indicate that
Page 6
claimant was anxious to return to work, but on her return
was told there was no longer work with restrictions
available. The doctor's notes further, in part, indicate
that an individual representing the rehabilitation company
confirmed what the claimant said about work not being
available with restrictions. This consultant indicated that
Sears no longer had a place for the claimant if she required
some kind of restrictions. He indicated that claimant was
trying to function without taking advantage of these
restrictions because of the pressure of accomplishing her
job. The consultant indicated to the doctor that it
appeared claimant needed to have an impairment rating worked
out with the expectation she was going to be paid for her
impairment and not allowed to return to work. The doctor's
notes further indicate that claimant was ready to go back to
work, but with Sears not allowing her to go back to work
with restrictions, there seems to be no reason why this
doctor would be seeing her again unless the situation
changed.
The undersigned found the above notes of the doctor of
interest since there was testimony that seemed to indicate
from defendants' standpoint claimant could work with
restrictions and that she had help.
Claimant later then returned to work to her regular
duties but was complaining that this was bothering her. On
January 19, 1993, pursuant to a visit to Dr. Sinning, she
told the doctor she was having problems with her back and
left leg that was interfering with her job performance.
Claimant told him she no longer had helpers at Sears and
seemed to be doing more lifting than she was doing in the
past.
The January 26 notes of Dr. Sinning indicate Rick Hauk
of defendant employer called him about the claimant asking
if she was able to work on January 18, the day before Dr.
Sinning saw her on January 19, 1993. The doctor indicated
he told Mr. Hauk that he didn't think claimant was able to
work and that was the reason he was seeing her and he had
reviewed with Mr. Hauk the restrictions. On January 26, the
doctor also had a conversation with Sherry Rodriguez of
defendant employer and it is obvious from the notes that she
was trying to convince the doctor that claimant's problems
for which he saw her on January 19 were the same ones she
had been having and she related to the doctor that claimant
was using the back problem as an excuse. The doctor
indicated he was caught in the middle.
From the testimony in this case, the claimant had by
this time already been fired from work for having gone to
the doctor on January 19 before coming to work before she
would go to the doctor appointment which was at 9:00 or
10:00 in the morning on January 19. If the defendant
employer fired claimant for all the specific reasons
indicated in court, then it would seem unnecessary that Ms.
Rodriguez or Mr. Hauk would have to call the doctor and
discuss whether she was in fact excused or not. The
defendants, in court, seemed to indicate that the mere fact
she didn't come in was her fourth violation and therefore
Page 7
she was terminated. These notes of the doctor seemed to
indicate that there was a question as to the full reason for
claimant being terminated on January 19, 1993, and it would
indicate that defendant employer is trying to find some
rationalization for their firing in trying to get the doctor
to okay it and the doctor now feels he is caught in the
middle.
Dr. Sinning's deposition was taken on November 17,
1993, represented by joint exhibit 4. Dr. Sinning testified
he saw claimant for the first time around March 12, 1990.
He indicated claimant was sent there at the request of the
insurance carrier for an examination so as to make some
recommendations for claimant's ability to return to work and
need for further medical care.
The doctor related they took a history of the claimant
and also went over the various notes and the nature of his
examination. He indicated he referred claimant to the
University of Iowa. The doctor referred to the University
of Iowa's letter of November 27, 1990, in which they found
there was an S1 radiculopathy change, inflammation in the
first sacral nerve on the left thigh. They reviewed the MRI
and had the impression of a focal midline herniation at the
L3-4 and they did EMG studies which showed absent H
reflexes, which is an electrical sign of some nerve
inflammation. (Joint Exhibit 4, pp. 8-15) The doctor then
met claimant on November 12, 1991, and thereafter he did no
other course of treatment as claimant was then being
followed by Work Well by two other doctors involved in her
medical care. At that time, she was under their care and
direction. Work Well followed claimant from December 1990
until July 1991, at which time claimant returned to work
with no restrictions.
The doctor then said that on October 23, 1991 claimant
had a flare-up of some low back discomfort and pain going
into her left leg and she was then back to see him again.
He then indicated claimant's problems were work related and
on December 20, 1991, opined that claimant had an 8 percent
whole body permanent impairment. (Jt. Ex 1; Jt. Ex. 4, p.
11; Dep. Ex. 2) The doctor causally connected this
permanent impairment to claimant's work-related injury.
The doctor testified that when he last saw claimant on
March 30, 1993, she was getting along well and she was back
on a regular lifting limit of 25 pounds doing her regular
job. He indicated that weight limit seems to probably be a
reasonable present limit. The doctor also indicated that
that 25 pounds was more of a higher than waist kind of
limitation and that claimant could lift more at a lower
level and it would be reasonable that claimant could lift
higher weights at a lower level. (Jt. Ex. 4, pp. 14 and 15)
The doctor, on cross-examination from the defendants'
attorney, also opined that claimant's incident or flare-up
of October 23, 1991 was a specific incident of an
exacerbation of her previous problem, that problem being her
January 16, 1990 work injury.
Page 8
Michael Cullen, M.D., a neurologist, opined in his
October 15, 1993 letter that claimant had an 8 percent
permanent impairment to his body as a whole, referring to
the fourth edition of the AMA Guides to the Evaluation of
Permanent Impairment. The doctor had evaluated the claimant
on that date through a referral of claimant's attorney.
The undersigned notes that both Dr. Cullen and Dr.
Sinning have opined an 8 percent body as a whole impairment.
The record also indicates as of the present time, the 25
pound weight lifting restriction, at least from the waist
up, is still in force.
The sole issue in this case is the extent of claimant's
permanent disability. Defendants have paid 8 percent
industrial disability. Impairment is one element to
consider in determining claimant's industrial disability.
In fact, you don't have to have a permanent impairment in
order to have determination of industrial disability. One's
restrictions are a very important factor. The undersigned
believes the claimant as to the fact that the employer was
not obeying her restrictions when she returned back to work,
at least for the entire period, and when they did attempt to
provide some help it does not appear that it was adequate
and, in fact, the claimant continued to do what she was
doing and was, in fact, operating beyond her restrictions
because of the nature of her job and the pressure that was
put on her to perform her job. The evidence is obvious that
claimant's job required her to do a considerable amount of
work within a certain period of time.
The undersigned does not accept the reasoning of the
employer which resulted in the claimant being dismissed from
her job during this controversy. The defendants claim that
claimant was supposed to have gotten permission from the
employer to go to the 9:00 or 10:00 a.m. doctor appointment
on or around January 19, 1993. Defendants contend that they
told the claimant when she called in on that morning that
she was hurting and that she would come in after she saw the
doctor, that she should come to work before going to the
doctor. Claimant did not come in before seeing the doctor
and, in fact, kept her appointment and the doctor then gave
her an excuse for that day and the previous day for not
coming to work. This did not satisfy the defendants because
she was told to come in. The undersigned is not sure
whether she needed an excuse before she took off on those
two particular occasions because of her injury and her back
hurting but it did not seem logical that the claimant, who
had an appointment set up, would have to go see the doctor
before her appointment and then come to work and leave
shortly thereafter to keep her appointment. One presumes
the doctor's schedule is such that when he set up an
appointment for 9:00 or 10:00 in the morning, he did not
have time to analyze claimant prior to that time in order to
give her an excuse.
The undersigned is further supported by his reasoning
herein when one refers to the January 26, 1993 notes in
Page 9
which at that time it appears the employer was interfering
with the doctor's judgment and reasons for excusing claimant
from work. It appears on both January 25 and 26, 1993, this
doctor had a conversation with the two defendant witnesses
that testified in this case, both of whom on those
respective date seemed to be trying to influence the
doctor's judgment. Defendant employer did not handle this
matter well in that regard and seemed to do its best to find
a reason to eventually fire or lay off this claimant.
Claimant has a 25 pound weight restriction,
particularly from the waist up. This is a considerable
weight restriction for someone who has a work history such
as claimant and whose job has been for the last few years
before her injury performing manual labor which required
lifting, pushing, twisting, etc.
There is no dispute in the medical as to the permanent
impairment or to any restrictions claimant has.
Taking into consideration claimant's work and medical
history prior to her injury and after her injury; her
present condition; education; intelligence; wages prior to
the injury and after her injury; her inability to engage in
employment for which she is fitted after her injury to the
same extent that she was able to do prior to her injury;
location and severity of her injury; age; motivation; and,
functional impairment, the undersigned finds that claimant
has a 25 percent industrial disability.
CONCLUSIONS OF LAW
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
Page 10
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. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
It is further concluded that:
Claimant's work injury on January 16, 1990 caused
claimant to incur permanent impairment and lifting
restriction and a 25 percent industrial disability.
ORDER
THEREFORE, it is ordered:
That claimant is entitled to one hundred twenty-five
(125) weeks of permanent partial disability benefits at the
weekly rate of one hundred eighty-eight and 92/100 dollars
($188.92) beginning December 21, 1991.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid. Defendants have previously
paid forty (40) weeks of permanent partial disability
benefits at the rate of one hundred eighty-eight and 92/100
dollars ($188.92) per week.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
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 January, 1994.
Page 11
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr William J Bribriesco
Attorney at Law
2407 18th St Ste 202
Bettendorf IA 52722
Mr Mark Woolums
Attorney at Law
600 Union Arcade Bldg
111 E Third St
Davenport IA 52803
5-1803
Filed January 11, 1994
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ROBIN WHITE, :
:
Claimant, :
:
vs. :
: File No. 946948
SEARS MANUFACTURING, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
ITT HARTFORD INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
Found claimant is entitled to 125 weeks of permanent partial
disability benefits as a result of her work injury
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
JUDY HUNT, :
:
Claimant, :
:
vs. :
: File No. 946984
CHEROKEE MENTAL HEALTH, :
INSTITUTE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
This is a proceeding in arbitration brought by Judy Hunt,
claimant, against Cherokee Mental Health Institute, employer
and State of Iowa, insurance carrier, to recover benefits
under the Iowa Workers' Compensation Act as the result of an
alleged injury sustained on March 24, 1990. This matter
came on for hearing before the undersigned deputy industrial
commissioner on February 6, 1991, in Storm Lake, Iowa. The
record was considered fully submitted at the close of the
hearing. The record in this case consists of claimant's
testimony, claimant's exhibits 1 through 12 and defendants'
exhibit A.
issues
The only issue to be determined by the undersigned
involves claimant's entitlement to Iowa Code section 85.27
expenses and mileage reimbursement.
findings of fact
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Defendants do not dispute that claimant sustained an
injury to her right lower extremity on March 24, 1990,
arising out of and in the course of employment with
employer. As a result of this injury, claimant underwent
right knee arthroscopy at St. Luke's Regional Medical Center
in Sioux City, Iowa, and follow-up physical therapy
(exhibits 4a-c).
Claimant alleges that as a result of compensating for
Page 2
her right knee problems, she developed significant problems
in her left knee. On January 29, 1992, claimant underwent
left knee surgery. Defendants learned of this surgery the
day before hearing and dispute liability and ripeness of
this issue at this time. Therefore, defendants disputes
certain medical bills related to claimant's left knee
surgery. Defendants also dispute certain medical and
pharmacy bills as either unauthorized or not causally
related to claimant's work-related injury.
A summary of claimant's medical bills is set out in
exhibit eight.
Defendants allege that the following medical expenses
are unauthorized and unrelated to claimant's work-related
injury:
Dates of Service Medical Care Provider Cost
12-9-90 St. Luke's Medical Center $
133.45
1-29-92 St. Luke's Medical Center
2,875.69
Defendants state that Charles E. Hamm, M.D., was
notified that as of August 7, 1990, he was no longer
regarded as claimant's authorized physician for purposes of
workers' compensation. They also argue that claimant's
treatment at St. Luke's Medical Center on December 9, 1990,
was not related to claimant's work injury and was
unauthorized. In addition, they object to paying the
January 29, 1992, hospital bill and any treatment by Kevin
J. Liudahl, M.D., after October 24, 1991, because these
bills were not received until the day before the hearing.
Claimant testified that she was treated at St. Luke's
on December 9, 1990, for migraine headaches. She received
an injection for relief of pain. She also testified that
she underwent left knee surgery at St. Luke's on January 29,
1992.
Defendants also object to paying certain prescriptions
filled at Kingsley Pharmacy and Phar-Mor Pharmacy because
they were either not authorized or unrelated to the work
injury of March 24, 1990.
Finally, defendants object to mileage expenses incurred
on December 9, 1990, to St. Luke's Medical Center; mileage
expenses for an office visit to Niles Erikson, M.D., on
March 4, 1991; mileage expenses for an office visit with Dr.
Liudahl on January 24, 1992; and mileage expenses to and
from St. Luke's Medical Center for surgery on January 29,
1992.
conclusions of law
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
Page 3
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-reopen 1975).
Claimant has the burden of proving that the fees charged for
such services are reasonable. Anderson v. High Rise Constr.
Specialists, Inc., File No. 850096 (App. 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 Ct. App. 1983).
When a designated physician refers a patient to another
physician, that physician acts as the defendant employer's
agent. Permission for the referral from defendants is not
necessary. Kittrell v. Allen Memorial Hospital,
Thirty-fourth Biennial Report of the Industrial Commissioner
164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
An employer's right to select the provider of medical
treatment to an injured worker does not include the right to
determine how an injured worker should be diagnosed,
evaluated, treated or other matters of professional medical
judgment. Assmann v. Blue Star Foods, Inc., File No. 866389
(Declaratory Ruling, May 18, 1988).
The first issue to be determined is whether defendants
are liable for payment of medical expenses and mileage for
claimant's treatment at St. Luke's Medical Center on
December 9, 1990, and January 29, 1992. Claimant testified
that she began experiencing severe headaches after
arthroscopic surgery on April 26, 1990. Her headaches
intensified after returning to work. She conferred with
Doctors Hamm and Powell regarding these headaches and was
prescribed Fioricet and Darvocet. On December 9, 1990, she
presented to the emergency room at St. Luke's Regional
Medical Center for treatment of migraine headaches. She was
given an injection of Toradol and Vistaril. She was
instructed to decrease her caffeine, chocolate and processed
meat intake (ex. 4c).
The medical evidence indicates that claimant has a long
clinical history of treatment by Dr. Hamm for headaches,
dizziness, numerous aches and pains and depression. As
early as November 27, 1985, she presented with complaints of
tiredness, aching in her legs and headaches. These
complaints predated her March 1990 injury and are unrelated
to it. Therefore, treatment at St. Luke's Medical Center on
December 9, 1990, is not compensable.
Claimant's January 29, 1992, surgery at St. Luke's
Medical Center is not the subject of this claim and
therefore, is not compensable at this time.
Page 4
Claimant is entitled to payment of prescription drugs
at Kingsley and Phar-Mor Pharmacy related to treatment by
Dr. Hamm through August 7, 1990, and by Dr. Liudahl through
October 24, 1991. She is not entitled to payment of those
costs for prescription drugs for treatment of headaches,
depression and anxiety. Therefore, claimant is not entitled
reimbursement for for Prozac, amitriptyline and Buspar.
Claimant is also not entitled to payment of those costs
related to her weight problem and insomnia.
Finally, claimant is not entitled to mileage expenses
for treatment at St. Luke's Hospital on December 9, 1990,
and January 29, 1992; treatment by Dr. Erikson on March 4,
1991; and treatment by Dr. Liudahl on January 24, 1992.
Claimant is entitled to payment of only those expenses
related to treatment of her right lower extremity problems
and expenses authorized by defendants.
order
THEREFORE, IT IS ORDERED:
Claimant takes nothing further from this proceeding.
Defendants pay costs pursuant to rule 343 IAC 4.33.
Defendants file claim activity as ordered by the agency
pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of February, 1992.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Daryl L. Hecht
Attorney at Law
614 Pierce St.
PO Box 27
Sioux City, Iowa 51102
Ms. Shirley Ann Steffe
Assistant Attorney General
Hoover State Office Bldg
Des Moines, Iowa 50319
Page 1
52500 52503
Filed February 13, 1992
Jean M. Ingrassia
before the iowa industrial commissioner
____________________________________________________________
:
JUDY HUNT, :
:
Claimant, :
:
vs. :
: File No. 946984
CHEROKEE MENTAL HEALTH, :
INSTITUTE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
52500 52503
Claimant failed to prove by a preponderance of the evidence
that medical expenses and mileage costs are reimbursable
under Iowa Code section 85.27 for treatment of headaches,
depression, insomnia, weight loss and anxiety. These
conditions predated claimant's injury and treatment thereof
was either not authorized by defendant or not causally
related to her work-related injury.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
MIKE McVEY, :
:
Claimant, :
:
vs. :
: File No. 946988
MILLER PRODUCTS CO., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
ST. PAUL FIRE AND MARINE :
INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
Claimant Mike McVey filed an original notice and
petition requesting an independent medical examination under
Iowa Code section 85.39. He alleges that he sustained an
injury arising out of and in the course of his employment
with defendant Miller Products Co. on April 16, 1990.
Defendants duly filed an answer admitting the allegations of
the petition, but arguing that they should have had an
opportunity to submit prior medical records and x-rays to
the examining physician and further assert that an
independent medical examination does not include the
follow-up treatment recommended by the examining physician.
This cause was scheduled for hearing in Des Moines,
Iowa, on January 12, 1993. All parties failed to appear for
the hearing. The record in this case consists only of the
pleadings.
issue
The sole issue presented for resolution is whether
claimant is entitled to an independent medical examination
under Iowa Code section 85.39.
FINDINGS OF FACT
Claimant has alleged that he sustained an injury
arising out of and in the course of his employment with
Miller products Co., on April 16, 1990, that the injury
occurred in Osceola, Iowa, and that an evaluation of
permanent disability was made by an employer/insurance
carrier-retained physician, David J. Boarini. Claimant also
asserts that the evaluation is "too low" (although claimant
failed to attach the written report to his petition) and
that the work injury was a factor in producing the condition
for which the evaluation was made.
Page 2
Defendants admitted all of these allegations, which are
hereby found to be established.
conclusions of law
Iowa Code section 85.39 provides in pertinent part:
If an evaluation of permanent disability has
been made by a physician retained by the employer
and the employee believes this evaluation to be
too low, the employee shall, upon application to
the commissioner and upon delivery of a copy of
the application to the employer and its insurance
carrier, be reimbursed by the employer the
reasonable fee for a subsequent examination by a
physician of the employee's own choice, and
reasonably necessary transportation expenses
incurred for the examination. The physician
chosen by the employee has the right to confer
with and obtain from the employer-retained
physician sufficient history of the injury to make
a proper examination.
Section 85.39 permits an employee to be reimbursed for
subsequent examination by a physician of the employee's
choice where an employer-retained physician has previously
evaluated "permanent disability" and the employee believes
that the initial evaluation is too low. The section also
permits reimbursement for reasonably necessary
transportation expenses incurred and for any wage loss
occasioned by the employee's attending the subsequent
examination.
Defendants are responsible only for reasonable fees
associated with claimant's independent medical examination.
Claimant has the burden of proving the reasonableness of the
expenses incurred for the examination. See Schintgen v.
Economy Fire & Casualty Co., File No. 855298 (App. Dec.
April 26, 1991). Defendants' liability for claimant's
injury must be established before defendants are obligated
to reimburse claimant for independent medical examination.
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
It is not necessary for claimant to obtain prior
approval of defendants or that claimant file an application
with the industrial commissioner's office prior to seeing an
independent medical examiner. Vaughn v. Iowa Power, Inc.,
(No. 925283, Arb. Dec. August 5, 1992). Nor is it necessary
for claimant to apply for reimbursement for an independent
medical examination by a physician by claimant's own choice
prior to the examination or prior to hearing. Pirozek v.
Swift Independent Packing and Second Injury Fund of Iowa,
File Nos. 753643, 753642 and 724893 (Appeal Dec. 1987).
Where the employer is found liable for the injury or admits
liability, as here, the only condition precedent to the
triggering of this provision is a showing that a prior
evaluation by the employer's physician for the injury at
issue has been made and the employer's physician has reached
a conclusion regarding a permanent impairment. Kilness v.
Page 3
Ebasco Services, Inc., Thirty-fourth Biennial Rep., Iowa
Indus. Comm'r 161 (1979).
Claimant has established entitlement to an independent
examination. Evidence has not been offered as to the
reasonableness of Dr. Boulden's charges (Dr. Boulden
apparently conducted the independent medical examination on
June 20, 1991, some six days before claimant's petition was
filed). This decision does not address reasonableness of
charges.
Defendants objected to the failure to provide the
examining physician with prior medical records. As seen,
claimant has no such responsibility. Defendants' answer
also notes that a telephone call was received from a
physical therapy concern requesting permission and
authorization to proceed with Dr. Boulden's recommendations.
This proceeding is under Iowa Code section 85.39. That
section relates only to an examination, not to medical care.
This decision does not require that treatment recommended by
Dr. Boulden be provided.
order
THEREFORE, it is ordered:
Claimant's application is granted and defendants shall
immediately reimburse claimant for the reasonable expenses
of Dr. Boulden's examination, including travel expenses.
Costs, if any, are assessed to defendants.
Signed and filed this ____ day of January, 1993.
______________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Larry Seckington
Attorney at Law
326 56th Street
Des Moines, Iowa 50312
Page 4
Miller Products Co.
Highway 69 North
Osceola IA 50213
Mr Donald R Gordon
Claim Supervisor
St. Paul Fire & Marine
2600 Westown Parkway
P O Box 65459
West Des Moines IA 50265
2502
Filed January 14, 1993
David R. Rasey
before the iowa industrial commissioner
____________________________________________________________
:
MIKE McVEY, :
:
Claimant, :
:
vs. :
: File No. 946988
MILLER PRODUCTS CO., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
ST. PAUL FIRE AND MARINE :
INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
2502
Neither party appeared for hearing on claimant's petition
for independent medical examination. The record was limited
to the pleadings. Defendants admitted all allegations, but
claimed a right to submit medical records and x-rays to the
examining physician. It was found that claimant had no such
responsibility. Defendants also asserted that section 85.39
does not authorize further treatment as recommended by the
examining physician. Defendants were ordered to pay the
reasonable expenses of the examination, but were not ordered
to provide additional care recommended by the examining
physician.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
TRACY L HOLVEN, :
:
Claimant, :
:
vs. :
: File No. 956310 &
947012
IOWA VETERANS HOME, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Tracy L.
Holven, claimant, against Iowa Veterans Home, employer, and
State of Iowa, insurance carrier, defendants, to recover
benefits under the Iowa Workers' Compensation Act as a
result of a shoulder injury sustained April 4, 1990 and
aggravation of that injury on July 18, 1990. This matter
came on for hearing before the undersigned deputy industrial
commissioner on June 17, 1993, in Fort Dodge, Iowa. The
record was considered fully submitted at the close of the
hearing. The claimant was present and testified. Also
present and testifying were Cindy Lund, Becky Conard and
Diane Lemker. The documentary evidence identified in the
record consists of claimant's exhibits 1 through 9 and
defendants' exhibit B through E and G through I.
ISSUES
Pursuant to the hearing report and order approving same
dated June 17, 1993, the parties have presented the
following issues for resolution:
. Whether claimant's alleged injuries are a cause of
permanent disability, and if so, the extent thereof; and
. Whether claimant's disability is a scheduled member
disability to the arm or an industrial disability.
FINDINGS OF FACT
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Claimant was born on June 11, 1961, and attended high
Page 2
school through the ninth grade. She obtained a GED
certificate in 1980. She is a certified "Geriatric Aide"
and "Nonparenteral Medication Aide". She completed some
classes towards a nursing degree at Marshalltown Community
College and completed two classes in paralegal studies at
the American Institute of Commerce in Cedar Falls from
September through November of 1991. In August 1992, she
commenced a two-year paralegal program at Kirkwood Community
College. She is expected to graduate in 1994. Claimant
commenced working for employer on January 2, 1981. She
worked in the nursing department performing patient care.
On April 4, 1990, she earned $11.57 per hour and on July 18,
1990, she earned $12.15 per hour.
The pertinent medical evidence of record reveals that
claimant saw Carl O. Lester, M.D., on April 25, 1990. She
presented with pain in her left shoulder after doing a
three-man lift on April 4, 1990. X-rays were normal.
Conservative therapy was initiated. She had an
arthrogram/CT scan of the left shoulder in May 1990 which
was basically negative. Dr. Lester diagnosed tendonitis in
the left shoulder without evidence of a rotator cuff
rupture.
Claimant vacillated between light duty and full duty
while continuing to have left shoulder symptomatology
(exhibit 3).
On November 5, 1990, Dr. Lester performed a diagnostic
arthroscopy and open anteror acromionectomy. Postoperative
diagnosis was "impingement syndrome, left shouder." (ex. 4).
After surgery claimant participated in a seven-week
work hardening program at Marshalltown Medical and Surgical
Center. This commenced on January 14, 1991. It was
completed on March 1, 1991. At the end of the program, the
therapist questioned whether claimant would be able to
return to her prior work activity or tolerate eight hours of
regular job duties (ex. 5).
Claimant returned to work after surgery. She had
difficulty with heavy lifting and sustained repetitive work
activity. As a result she experienced pain and weakness in
her left shoulder. She sought treatment from Dr. Leland G.
Hawkins and David P. Hart, M.D, at the Medical Clinic in
Cedar Rapids, Iowa. Claimant first presented to the clinic
on June 13, 1991. An examination by Dr. Hawkins revealed a
full range of motion of the left shoulder with weakness of
the supraspinatus. X-rays were normal. She was injected in
the subdeltoid bursa. Pain medication was also prescribed
(ex. 8).
Claimant saw Dr. Hart on October 2, 1991. After
examination, a chronic rotator cuff tendonitis was
diagnosed. An MR scan of the left shoulder was performed
and revealed hypertrophy at the AC joint but no evidence of
cuff tear. Dr. Hart recommended a diagnostic left shoulder
arthroscopy (ex. 8).
Claimant was scheduled for left shoulder arthroscopy on
Page 3
November 7, 1991. Although there is no medical record of
the procedure, Dr. Hart reported on November 13, 1991, that
claimant suffers from secondary impingement type syndrome.
A follow-up examination on December 7, 1991, revealed full
range of motion of the left shoulder with a mildly positive
impingement sign (ex. 8, page 4).
On March 2-3, 1992, claimant underwent a functional
capacity evaluation by a licensed physical therapist and
occupational therapist (ex. 6). The results were explained
to her by Dr. Hart. He told her that the examination showed
excellent range of motion, negative impingement sign and
good strength. On March 6, 1992, Dr. Hart indicated that
claimant was capable of returning to work, full time, with
the following restrictions:
...floor to waist lifting 55 pounds on an
occasional basis, waist to shoulder lifting 30
pounds on occasional basis, waist to overhead
lifting 25 pounds on an occasional basis. On arm
lifting overhead would be limited to 10 pounds on
an occasional basis, pushing activities 82 pounds
of force on an occasional basis, pulling 58 pounds
of force on an occasional basis. Repetitive
overhead lifting should be avoided.
(exhibit 8, page 5)
Claimant presented Dr. Hart's restrictions to employer.
On March 20, 1992, she was terminated by employer due to an
unavailability of work within these restrictions (ex. 1).
On August 31 and September 1, 1992, claimant underwent
another functional capacity evaluation by the same two
therapists who performed the evaluation on March 2-3, 1992
(ex. 7).
On October 12, 1992, claimant presented to Dr. Hart for
a final evaluation. Claimant related that the arthroscopic
subacromial decompression partially helped to alleviate her
pain. She complained of difficulty with overhead motions
and arm fatigue. After reviewing the functional capacity
evaluation completed on September 1, 1992, Dr. Hart gave
claimant the same restrictions as on March 6, 1992. At this
time, he also gave her a 2 percent impairment rating of the
left upper extremity (ex. 8, p. 6).
Dr. Hart participated in a telephone deposition on
March 3, 1993. He testified that he first saw claimant on
October 2, 1991. Based upon her complaints of pain, he
injected her shoulder. She received some but not
substantial relief and a diagnosis of chronic rotator cuff
tendonitis was made. An MR scan was also recommended. Dr.
Hart testified that the scan showed some enlargement of the
acromioclavicular joint (the joint where the collar bone
meets the shoulder blade bone) and some obliteration of the
fat that overlies the rotator cuff. On November 7, 1991, he
performed a diagnostic arthroscopy of the left shoulder
joint and an arthroscopic acromioplasty. This involves
making room for the underlying rotator cuff by removing a
Page 4
portion of the acromian bone and the clavicle bone. He
explained that the acromian bone forms the roof overlying
the shoulder and the collar bone starts from the breast bone
and extends out towards the shoulder and forms a joint with
the shoulder blade bone way out towards the shoulder. He
reiterated that he removed a portion of both of these bones
in order to provide more room for the underlying rotator
cuff tendons which were chronically inflamed (ex. 2, pp.
8-10).
CONCLUSIONS OF LAW
The first issue to be determined is whether claimant's
injury on April 4, 1990 and aggravation on July 18, 1990, is
confined to her right arm or extend into the body as a
whole.
The right of an employee to receive compensation for
injuries sustained is statutory. The statute conferring
this right can also fix the amount of compensation payable
for different specific injuries. The employee is not
entitled to compensation except as the statute provides.
Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
Compensation for permanent partial disability begins at
termination of the healing period. Section 85.34(2).
Permanent partial disabilities are classified as either
scheduled or unscheduled. A specific scheduled disability
is evaluated by the functional method; the industrial method
is used to evaluate an unscheduled disability. Simbro v.
Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v.
Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v.
Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
When disability is found in the shoulder, a body as a
whole situation may exist. Alm v. Morris Barick Cattle Co.,
240 Iowa 1174, 38 N.W.2d 161 (1949). In Nazarenus v. Oscar
Mayer & Co., II Iowa Industrial Commissioner Report 281
(App. 1982), a torn rotator cuff was found to cause
disability to the body as a whole.
Even though a doctor assigns a permanent partial
impairment rating to an extremity and not to an arm or leg
or hip or shoulder, that assignment is not controlling in
determining whether the disability is properly rated as to a
scheduled member or to the body as a whole. The statute
sets forth scheduled permanent partial disability
compensation for the loss or loss of use of an arm or of a
leg, not for the loss or loss of use of an upper extremity
or lower extremity. Where an injury to a joint connecting
an extremity to the body as a whole is present, disability
in the form of actual impairment to the body as a whole also
must be present for the injury to be industrially ratable.
See Iowa Code 85.34(2); Lauhoff Grain v. McIntosh, 395
N.W.2d 834 (Iowa 1986); Alm, 240 Iowa 1174, 38 N.W.2d 161;
Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569
(1943).
Defendants argue that claimant's disability is to the
upper extremity only. As noted, since upper extremities are
Page 5
not recognized as a scheduled member in Iowa, a physician's
assignment of permanent partial impairment to an upper
extremity is not controlling.
A shoulder injury is an injury to the body as a whole
if the injury affects the "body side" or the shoulder joint.
Lauhoff Grain, 395 N.W.2d 834. The agency has typically
compensated shoulder injuries industrially on the basis that
such injuries involve disability to the body as a whole.
Streeter v. Iowa Meat Processing Co., file numbers 730461
and 809945 (App. Decn., March 31, 1989); Nazarenus v. Oscar
Mayer & Co., II Iowa Industrial Commissioner Report 281
(1982); Houser v. A M Cohron & Sons, file number 851752;
Payton v. Sheller-Globe Corp., file number 895808 (App.
Dec. April 30, 1993).
The surgical procedures performed on November 5, 1990
and November 7, 1991, invaded the body side of the shoulder
joint. Dr. Hart testified that he performed a diagnostic
arthroscopy of the left shoulder joint and an arthroscopic
acromioplasty which involves removing a portion of the
acromian bone and the clavicle bone. He stated that he
removed a portion of those bones in order to provide more
room for the underlying rotator cuff tendons which were
chronically inflamed. This procedure was performed because
an MR scan showed some enlargement of the acromioclavicular
joint and some obliteration of the fat that overlies the
rotator cuff.
Accordingly, claimant has met her burden of proof that
her injury extends beyond the scheduled member and into the
body as a whole. Kellogg v. Shute and Lewis Coal Company,
130 N.W.2d 667 (1964).
Since claimant has an impairment to the body as a
whole, she has sustained an industrial disability.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
Page 6
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
As previously noted, claimant was born on June 11,
1961. She was 29 years old in 1990 when she injured her
shoulder. Because of her young age, claimant's industrial
disability is less serious than it would be for an older
worker who is injured at the peak of her earning career.
Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report
of the Industrial Commissioner 34 (Appeal Decision 1979);
Walton v. B & H Tank Corp., II Iowa Industrial Commissioner
Report 426 (1981); McCoy v. Donaldson Company, Inc., file
numbers 782670 & 805200 (App. Dec. 1989).
Claimant has demonstrated that she is capable of
retraining or additional training. She began paralegal
school in September 1991 and continues in that program. She
plans to graduate in 1994. Claimant obtained a GED
certificate after quitting school in the ninth grade. She
also obtained a certificate in medication and geriatric
aide. Claimant has demonstrated a willingness and ability
to pursue educational endeavors and has demonstrated a
motivation to be employed.
Page 7
An injured employee's ability for retraining is one of
the considerations used in the determination of industrial
disability. Conrad v. Marquette School, Inc., IV Iowa
Industrial Commissioner Report 74, 89 (1984).
Claimant testified that she has not made a serious job
search since March 1992 when she was terminated from her job
with employer. She honestly testified that working would
interfere with her paralegal studies. An employee seeking
workers' compensation would do well to make a diligent
attempt to find employment. Hild v. Natkin & Co., I Iowa
Industrial Commissioner Report 144 (Appeal Decision 1981);
Tuberty v. Harold Dickey Transport, Inc., file number
798936 (February 29, 1992).
Employers are responsible for the reduction in earnings
capacity caused by the injury, they are not responsible for
a reduction in actual earnings because the employee resists
returning to work. Williams v. Firestone Tire and Rubber
Co., III Iowa Industrial Commissioner Report 279 (1982).
Nevertheless, claimant is foreclosed from performing
her prior work as a nurse's aide. Defendants have not
worked with claimant nor offered her light duty work within
her work restrictions. Defendants have not offered claimant
vocational rehabilitation. Defendants made no effort to
accommodate claimant's needs and this forces claimant to
compete in the competitive job market with work restrictions
obtained while in the employ of employer.
Dr. Hart gave claimant a 2 percent permanent impairment
rating to the left upper extremity. He testified that when
he rates an extremity or joint, he bases it solely on
objective findings which would for a shoulder involve range
of motion measurements and strength testing. He stated that
claimant had a better than normal range of motion simply
because of her congenital ligamentous laxity. He admitted
that he did not include in his ratings her complaints of
numbness and pain because these are subjective complaints.
However, Dr. Hart had no reason to doubt claimant's
subjective complaints.
Based upon all the factors used to determine industrial
disability, and relying on agency expertise, it is
determined that claimant has sustained a 30 percent
industrial disability.
ORDER
In file number 956310:
Claimant takes nothing further from these proceedings.
In file number 947012:
Defendants pay to claimant one hundred fifty (150)
weeks of permanent partial disability benefits at the rate
of three hundred one and 73/100 dollars ($301.73) per week
commencing March 6, 1992, when she was released to return to
work by Dr. Hart (ex. 8, p. 5).
Page 8
That defendants receive credit for any benefits
previously paid.
That defendants receive credit under Iowa Code section
85.38(2) for previous payments made under a nonoccupational
group plan.
That defendants pay accrued amounts in a lump sum.
That defendants pay interest pursuant to Iowa Code
section 85.30.
That defendants pay costs pursuant to rule 343 IAC
4.33.
That defendants file claim activity reports as required
by the agency pursuant to rule 343 IAC 3.1(2).
Signed and filed this ____ day of June, 1993.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. R. Ronald Pogge
Attorney at Law
2700 Grand Ave., STE 111
Des Moines, Iowa 50312
Mr. James Christenson
Assistant Attorney General
Hoover State Office Bldg
Des Moines, Iowa 50319
51803.1, 51803
Filed June 25, 1993
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
TRACY L HOLVEN,
Claimant,
vs.
File No. 956310 & 947012
IOWA VETERANS HOME,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
STATE OF IOWA,
Insurance Carrier,
Defendants.
___________________________________________________________
51803.1
Claimant's shoulder injury was found to be an injury to the
body as a whole. Claimant underwent a diagnostic
arthroscopy of her left shoulder joint and an arthroscopic
acromioplasty. This involved making more room for the
underlying rotator cuff by removing a portion of the
acromian bone and the clavicle bone. The purpose of
removing a portion of those two bone was to provide more
room for the underlying rotator cuff tendons which were
chronically inflamed.
51803
Claimant was awarded a 30 percent industrial disability.
Claimant's treating surgeon gave her a 2 percent functional
impairment rating. Claimant, a younger individual (29) was
terminated by employer because they could not accommodate
her physical restrictions. Claimant is capable of
retraining and re-education. She has been attending a
paralegal program since 1991. Claimant has not sought any
employment because it would interfere with her school
schedule. It is difficult to assess claimant's
employability when she has not attempted to return to work
since March 1992.