BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
BEVERLY BEIREIS, :
:
Claimant, :
:
vs. :
: File Nos. 913904
DUBUQUE STAMPING CO., : 949486
:
Employer, : A R B I T R A T I O N
:
and : D E C I S I O N
:
AMERICAN MANUFACTURERS MUTUAL,:
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration brought by Beverly
Beireis, claimant, against Dubuque Stamping Company,
employer, and American Manufacturers Mutual Insurance
Company, insurance carrier, for benefits as the result of
two injuries. The first injury occurred to claimant's
middle finger and ring finger of the left hand on March 29,
1989 (file number 913904). The second injury occurred to
claimant's right shoulder, neck and back on May 8, 1990
(file number 949486). A hearing was held in Dubuque, Iowa,
on August 12, 1992, and the case was fully submitted at the
close of the hearing. Claimant was represented by James P.
Hoffman. Defendants were represented by Vicki L. Seeck.
The record consists of the testimony of Beverly Beireis,
claimant; Angella J. Mesch, claimant's daughter; Robert E.
Plourde, manager of employee relations; and joint exhibits 1
through 15. Defendants' counsel presented a brief
description of disputes for each injury at the time of the
injury.
ISSUES
The parties submitted the following issues for
determination at the time of the hearing:
With respect to the injury to the left ring and long
finger, which occurred on March 29, 1989, the parties
submitted the following issues for determination:
Whether the injury was the cause of permanent
disability;
Whether claimant is entitled to permanent disability
benefits.
With respect to the injury to the right shoulder, neck
and back, which occurred on May 8, 1990, the parties
Page 2
submitted the following issues for determination:
Whether the injury was the cause of permanent
disability;
Whether claimant is entitled to permanent disability
benefits, and if so, the extent of benefits to which she is
entitled;
Whether claimant is entitled to medical expenses, more
specifically, the chiropractic fees of Todd C. Spurling,
D.C., and if so, a designation of the fees to which he is
entitled.
fingers injury-march 29, 1989-file number 913904
FINDINGS OF FACT
causal connection-entitlement-scheduled members
It is determined that the injury to claimant's left
long finger and left ring finger on March 29, 1989, was not
the cause of permanent disability and, therefore, claimant
is not entitled to permanent disability benefits for these
two digits.
Claimant testified that she smashed the left long
finger and left ring finger while blanking rocker arms out
of steel. Claimant testified that she was taken to Finley
Hospital and was off work for about one and one-half months.
She was paid workers' compensation for her time off work and
her medical expenses were paid by employer.
A surgeon's first report of injury states that claimant
fractured the tufts of both the left middle finger and left
ring finger and suffered subungual hematomas under both
fingernails which were drained with a vasectomy cautery
devise. She was treated with ice, elevation and pain
medications and referred to David S. Field, M.D. X-ray
diagnosis disclosed a fracture of the tufts of both fingers
(exhibit 8, page 77).
Dr. Field reported on April 4, 1989, that claimant
received a distal tuft fracture of the middle and ring
fingers of the left hand and that no permanent disability
was anticipated (ex. 8, p. 73).
Claimant testified that when it came time to be
evaluated for this injury, the treating physician, Dr.
Field, had left town and the evaluation was performed by
another doctor, Scott Schemmel, M.D. Dr. Schemmel reported
on March 14, 1991, that he evaluated claimant for a
compression type injury to the left hand long and ring
fingers. He said the patient reports occasional discomfort
out over the tip in the left hand ring finger. She said her
fingernail felt strange like it was not there, the finger
gets colder than the other fingers and she feels like the
distal joint is smaller.
An x-ray of the fourth finger on March 14, 1991, by Dr.
Page 3
Schemmel showed that the PIP and DIP joints were well
maintained without evidence of posttraumatic degenerative
arthritis. The MP joint also appeared to be normal. He
said no residual fracture or adjoining incongruities were
identified (ex. 11, p. 90). His final evaluation was as
follows:
On physical examination this patient's left finger
shows no obvious deformity. There is no
hypertrophy or atrophy over any extent of the
finger. The DIP, PIP and MP joint range of
motions to this finger are full and equal to that
of the contralateral side. There is no
instability of the DIP joint in stressing and
radial and ulnar directions. There is no swelling
of the joint. The nail itself appears to be
totally normal. It is not discolored, cracked or
abnormal in shape or with any tendency towards
ingrowth. The joint is not tender to direct
palpation. Composite motion is excellent and into
the palm.
AP and lateral x-rays were repeated today. They
show no degenerative changes to be present at the
DIP joint is either plane.
I informed the patient that on the basis of the
AMA guide to the evaluation of disability that she
did not have any impairment of this finger....
(exhibit 11, pp. 91-92)
Dr. Schemmel's evaluation and statement of no
impairment is not controverted, contradicted, rebutted, or
refuted by any other physician.
Claimant testified that the tips of the long finger and
ring finger on her left hand are numb and tingle. She can
cut herself and not know it. These two fingers become cold
and she frequently makes a fist with her left hand in order
to keep these fingers warm. Claimant did acknowledge that
she could move and bend them normally. Claimant is
credible. There is no evidence, however, that these sensory
feelings are permanent. Furthermore, claimant did not
testify that they impair the use of her left hand or the use
of these two fingers.
Wherefore, it is determined that the injury to
claimant's left long finger and left ring finger was not the
cause of any permanent impairment or disability and that
claimant is not entitled to permanent disability benefits
for the injury to these two fingers.
right shoulder, neck and back injury-May 8, 1990-file number
949486
It is determined that the injury to claimant's right
shoulder, neck and back which occurred on May 8, 1990, was
the cause of permanent impairment and disability in the
amount of 5 percent to the body as a whole and that claimant
Page 4
is entitled to 25 weeks of permanent partial disability
benefits.
Claimant testified that she fell from an elevated area
while raking rocker arms and struck her right shoulder (ex.
1, p. 3; ex. 4, p. 18; ex. 6, p. 32; ex. 10, p. 79; ex. 12,
p. 93). Employer sent claimant to see Thomas J. Hughes,
M.D., an occupational medicine doctor. He found trapezius
tenderness and inability to abduct or rotate her right arm.
X-rays were unremarkable. He prescribed ice, massage, a
sling, medications, and took claimant off work (ex. 10, pp.
79-80). He saw claimant 25 times between May 8, 1990 and
December 27, 1990, when he determined that claimant had made
a full and complete recovery except for some deep seated
aching in the right trapezius muscle which he felt would
essentially resolve over time and which did not cause any
decrement in her performance (ex. 10, p.79; 289).
Even though claimant did not have surgery, she,
nevertheless, had a long and difficult course of recovery as
demonstrated by (1) Dr. Hughes' office notes and records
(ex. 7, pp. 34-48; ex. 10, pp. 79-89), (2) Dr. Hughes'
letters to the insurance carrier (ex. 7, pp. 66-71), and (3)
the reports of the rehabilitation specialist employed by
employer (ex. 4, pp. 17-29).
In subsequent reports, Dr. Hughes reported claimant's
diagnosis variously as right shoulder strain, rotator cuff
injury right shoulder, acute tendonitis of the rotator cuff
of the right shoulder, rotator cuff syndrome of the right
shoulder, anterior impingement syndrome of the right
shoulder, right acromia, clavicula pain and left scapula
pain, rotator cuff and acromia clavicular strain, myofascial
pain syndrome, and chronic cervical myofascial pain (ex. 7,
pp. 49-65).
Dr. Hughes very comprehensibly, yet succinctly,
summarized the lengthy and difficult period of treatment in
his final letter dated June 29, 1992 (ex. 12, pp. 93-94).
After her initial visit, claimant was further treated with
physical therapy, anti-inflammatory agents, muscle
relaxants, and local injection of anesthetic and steroid.
Dr. Hughes stated, "A considerable amount of difficulty was
encountered in the management of this patient, and her
continuing complaint of pain." (ex. 12, p. 93). An MRI of
the cervical spine was unremarkable. Dr. Hughes performed
an arthrogram on June 28, 1990, which turned out to be
normal. In September 1990 he prescribed a TENS unit. She
was released to part-time work and finally on September 27,
1990, she was released to unrestricted work. Because of the
lack of progress with conventional modalities, Dr. Hughes
approved chiropractic treatments at claimant's request. On
December 27, 1990, claimant had a full range of motion of
her right shoulder and neck and he closed his file on that
date (ex. 11, p. 92; ex. 12, p. 93).
At the time of his evaluation on June 26, 1992, Dr.
Hughes stated that claimant continues to sit on the
examining table with extremely poor posture with sagging
shoulders, overjutting chin and she continued to complain of
Page 5
pain in the area of the right trapezius. His measurements
of claimant's range of motion in her neck and right shoulder
were all normal or very much approximating normal and these
measurements, in his opinion, would not constitute any
evidence of permanent impairment based upon range of motion
criteria. He said her poor posture made a major
contribution to her symptomology. He found no sensory or
strength deficit. He found no neurological impairment. He
stated that his findings disagreed with the evaluation
findings of claimant's chiropractic evaluator (ex. 12, p.
94). Dr. Hughes concluded his final report by stating:
Based on the preceding information, I would rate
this individual as having 0% impairment, and no
evidence of any residual difficulties, save the
symptomatic complaint of pain. Pain is not
normally a ratable deficit unless there are other
associated findings. Furthermore, when a patient
is reported to be accomplishing her job in a very
satisfactory manner, in terms of both attendance
and productivity, I cannot find any basis for
awarding a Permanent Partial Impairment Rating on
this patient's history of injury on 5-8-90.
(exhibit 12, page 94)
The chiropractor that treated claimant was Todd C.
Spurling, D.C. His only report unfortunately was
obliterated by a 3x5 piece of paper placed between his
report and the copy machine right in the middle of the sheet
(ex. 6, pp. 32-33).
At the hearing, claimant testified that she still has
pain in the vicinity of her right shoulder, neck and
trapezius. She demonstrated that she gets some relief from
placing her warm hand on the painful area. She testified
that she also gets relief from rubbing it with her hand.
Claimant related that she can only sleep on her right side
for about five to ten minutes. The pain in increased if
claimant attempts to vacuum, mow grass or lift heavy
furniture. Claimant testified that she was unable to
perform the job of utility B operator which she was
performing at the time of the accident due to discomfort
when she raises her right arm. She was able to perform it
for a short time, but voluntarily transferred to a floor
inspector job for over one year. This job gave her
headaches and she then transferred into her current job
which she described as a tumbler operator.
Robert E. Plourde, manager of employee relations,
testified that these were all voluntary transfers which
claimant requested and was granted because she was qualified
and had the seniority to be awarded the bid. Claimant
related that this job is easier for her to perform because
it involves the use of her whole body rather than her right
upper extremity and that a hoist does most of the work.
Claimant granted that she did have to raise her right upper
extremity to turn on valves and to reach for the hoist.
Claimant contended that she made less money now because
Page 6
the utility B operator job paid (1) base pay (2) cost of
living increases, and (3) incentive pay. Claimant submitted
no figures to prove the amount of her actual wage loss.
Defendants' figures of claimant's income for the years 1990,
1991 and 1992, did not establish a wage gain for the reason
that claimant was off work a portion of the time in 1990 and
the year 1992 was not yet completed. Plourde testified that
claimant's job is classified as a labor tumbler. He further
agreed that claimant was an excellent piece worker and one
of the top operators. He further agreed that claimant is a
fast worker and signs up for overtime work at every
opportunity. Plourde said it was hard for her to slow down.
He was not aware of any difficulty she had with any of her
prior jobs. Plourde estimated that even though claimant
received top incentives in the utility B operator job,
nevertheless, she had not received any reduction in pay
because the base pay for tumbler operator was greater than
that of a utility B operator.
Plourde related that claimant operates a fork lift with
levers that are approximately chest high.
Angella J. Mesch, claimant's daughter, age 13,
testified that since the injury, her mother was unable to
hang up washing, wash the car, mow the lawn, clean the
house, or run the vacuum. She testified that these duties
were now performed by herself, her brothers and her
step-father.
Claimant was examined by Rick C. Courtney, D.C., a
chiropractor, on April 27, 1992. He performed an extensive
examination and wrote a lengthy and detailed report of his
evaluation. He reported that claimant had difficulty
reaching above her shoulders, lifting above her shoulders,
moderate to heavy lifting, driving a car, lifting her arm
with a twist with weight in her right hand, looking up too
long, repetitive lifting with reaching of her right hand and
arm. She also complained of right shoulder pain, right
shoulder blade pain and spasms, headaches, and neck pain
with stiffness.
His x-ray findings confirmed a decreased range of
motion on flexion and extension of her cervical spine.
Shoulder x-rays were negative. Claimant's cervical x-rays
also showed kyphosis and her thoracic x-rays showed a mild
S-shaped scoliosis.
Spinus percussion and muscular percussion in the
cervical and thoracic area elicited pain. Several of his
orthopedic tests to the cervical, shoulder and right upper
extremity area were positive. He found some diminished deep
tendon reflex reaction of the right biceps. Her right
shoulder had some loss of sensation. He found some limited
range of motion in the cervical and shoulder areas
accompanied by pain.
Dr. Courtney diagnosed (1) rotator cuff injury, right;
(2) calcific tendonitis; (3) greater auricular headache; and
(4) chronic cervical/shoulder-right complex grade II strain.
Page 7
Adding and combining his measurements, Dr. Courtney
determined that claimant has sustained a 15 percent
permanent impairment to the body as a whole based on the AMA
Guides to the Evaluation of Permanent Impairment, 3d ed.
(ex. 1, pp. 1-7).
Claimant fell and received a severe shoulder injury.
She had a long and difficult period of recovery which
employed several modalities of treatment and still complains
of chronic pain in her right shoulder, neck and back. She
testified it hurts but she does her job anyway. Dr. Hughes
did not think claimant's pain and slight loss of cervical
and shoulder range of motion were ratable. Dr. Courtney
thought that they were. Dr. Hughes' impairment rating of
zero, is probably too low. Dr. Courtney's impairment rating
of 15 percent is probably too high.
Quite frequently, agency decisions determine that
persistent pain which does not respond to several modalities
of treatment and extends beyond a year or more warrants a
permanent impairment rating of 5 percent. Moreover, the
Guides to the Evaluation of Permanent Impairment, 3d ed
(revised), section 3.3b, "Impairments Due to Specific
Disorders of the Spine," at table 53, section II,
"Intervertebral Disc and other Soft Tissue Lesions,"
subparagraph B, at pages 80 and 81, shows that soft tissue
lesions which are unoperated with medically documented
injury and a minimum of six months medically documented pain
and rigidity with or without muscle spasm, associated with
none to minimal degenerative changes on structural tests
warrants an impairment rating of 4 percent in the cervical
area.
At age 38 claimant is approaching her peak years of
earnings in her employment life and this tends to increase
her industrial disability. 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 a high school education with no additional
education or training of any kind and her employment
experience has been limited to factory work for this one
employer for 20 years. Thus, claimant does not have a
diverse employment background. She has few, if any,
transferable skills. She would not appear to be a good
candidate for academic retraining. Conrad v. Marquette
School, Inc., IV Iowa Industrial Commissioner Report 74, 89
(1984).
Claimant was able to return to her former employer and
perform her former job at that same pay. When it caused her
difficulty, she was able to transfer to the floor inspector
job and perform the labor tumbler job because of her 20
years of seniority with employer. Plourde said the main
factor in obtaining a job transfer was seniority. Plourde
also testified that claimant was one of the top employees of
employer. Thus, claimant has been able to accommodate her
Page 8
right shoulder difficulties because of her 20 years of
seniority and the high regard this employer had for her
abilities. These job advantages with employer would not
transfer to other employers if she had to start over with a
new employer with no seniority and an unknown performance
record. Hartwig v. Bishop Implement Company, IV Iowa
Industrial Commissioner Report, 159 (app. dec. 1984).
Claimant would not find the same facility of movement to
accommodate her right shoulder pain with a new employer.
Todd v. Department of General Services, Buildings and
Grounds, IV Industrial Commissioner Report 373 (1983).
At that same time, claimant's industrial disability is
reduced for the reason that the injury did not require
surgery. Neither physician, Dr. Hughes or Dr. Courtney,
imposed and permanent restrictions on claimant's ability to
be fully employed. However, under the heading of
"Prognosis" Dr. Courtney stated that due to the nature of
her condition and his findings at the time of his
examination, her prognosis is considered poor to fair (ex.
1, p. 6). Claimant further testified that the numbness in
her ring finger and middle finger on the left hand do not
impair her ability to perform her tasks for employer.
In conclusion, when (1) the impairment ratings of the
two physicians of 0 percent and 15 percent are weighed
together and (2) considered with claimant's credible
complaints of right shoulder, neck and back complaints and
(3) agency expertise is applied based upon the ratings of
physicians in numerous similar cases and (4) the application
of the AMA Guides is considered with their normal
application in numerous similar cases and (5) claimant's
age, education, retrainability and inability to transfer her
seniority to other employers, it is determined that claimant
has sustained a 5 percent industrial disability to the body
as a whole and is entitled to 25 weeks of permanent partial
disability benefits.
Wherefore, it is determined that the injury to the
right shoulder, neck and back, which occurred on May 8,
1990, was the cause of permanent impairment; that claimant
has sustained an industrial disability of 5 percent to the
body as a whole; and that claimant is entitled to 25 weeks
of permanent partial disability benefits.
MEDICAL BENEFITS
The dispute is whether claimant is entitled to payments
for the chiropractic treatments of Todd C. Spurling, D.C.,
for the period from November 26, 1990 and thereafter. The
parties agreed that Dr. Spurling's itemized statement was
not correct, because it failed to show a credit for over
$900 in payments made by the insurance carrier to Dr.
Spurling. In addition, the deputy notices that apparently a
page of itemized expenses are missing. At the bottom of
page one, the last entry is January 16, 1991, and the
current balance due was $355. At the beginning of page two,
the first entry is March 15, 1991, and shows a current
balance of $615. Thus it would appear that the charges for
the dates between January 16, 1991 and March 15, 1991, which
Page 9
added $260 to his bill, appears to be missing. The parties
requested merely an adjudication of defendants' liability
for dates of treatment and they further agreed that they
could work out the correct charges and credits between
themselves.
The insurance carrier submitted Dr. Spurling's bill for
a peer review analysis to an organization named Encompass,
Creative Health Care Solutions. On October 29, 1991, the
director of private review stated that the case had been
submitted to their chiropractic reviewer who determined that
Dr. Spurling's charges appeared to be reasonable. However,
in view of the recorded diagnosis, the length of time from
initial injury to physician's treatment, and lack of
neurologic or substantive findings on examination, it was
the opinion of their examiner that four months of care from
November of 1990 to February 1991, inclusive, should be
considered as necessary (ex. 15, pp. 104-105). For the same
reasons, it is determined by this deputy that the same
amount of chiropractic care is determined to be reasonable
medical care within the context of Iowa Code section 85.27.
Wherefore, it is determined that claimant is entitled
to recover the charges of Dr. Spurling from the time of the
initial examination on November 26, 1990 through February
1991. The precise amount of these charges cannot be
determined because that page is missing from the itemized
statement. Furthermore, the parties agreed that they could
work out the charges and credits between themselves.
CONCLUSIONS OF LAW
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
With respect to the injury to the left ring and long
finger which occurred on March 29, 1989, it is determined
that the injury was not the cause of permanent disability
and that claimant is not entitled to permanent disability
benefits. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d
867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18
N.W.2d 607 (1945); Iowa Code section 85.34(2)(c)(d).
Page 10
With respect to the right shoulder, neck and back injury
which occurred on May 8, 1990, it is determined that the injury
was the cause of permanent impairment and disability. Bodish,
257 Iowa 516, 133 N.W.2d 867; Lindahl, 236 Iowa 296 18 N.W.2d
607.
It is further determined that claimant has sustained a 5
percent industrial disability to the body as a whole and is
entitled to 25 weeks of permanent partial disability benefits.
Iowa Code section 85.34(2)(u).
With respect to the right shoulder, neck and back injury, it
is determined that claimant is entitled to be paid for the
services of Dr. Spurling from November 26, 1990 through the month
of February 1991. Iowa Code section 85.27.
ORDER
THEREFORE, IT IS ORDERED:
That defendants pay to claimant twenty-five (25) weeks of
permanent partial disability benefits based upon a five (5)
percent industrial disability to the body as a whole at the
stipulated rate of three hundred forty-four and 55/100 dollars
($344.55) per week in the total amount of eight thousand six
hundred thirteen and 75/100 dollars ($8,613.75) commencing on
September 27, 1990, as stipulated to by the parties.
That these benefits are to be paid in a lump sum.
That interest will accrue pursuant to Iowa Code section
85.30.
That defendants pay to claimant or the provider of services,
Dr. Spurling, his charges for the period between November 26,
1990 to the end of February 1991, in an amount to be agreed to by
the parties with defendants being given credit for an amount to
be agreed to between the parties.
That the costs of this action, including the cost of the
attendance of the court reporter at hearing, are charged to
defendants pursuant to Iowa Code section 86.40 and rule 343 IAC
4.33.
That defendants file claim activity reports as requested by
this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of September, 1992.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Page òòò 11
Mr. James Hoffman
Attorney at Law
Middle Road
PO Box 1087
Keokuk, IA 52632-1087
Ms. Vicki Seeck
Attorney at Law
600 Union Arcade Bldg
111 E 3rd
Davenport, IA 52801
51803 52501 52700
Filed September 1, 1992
Walter R. McManus, Jr.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
BEVERLY BEIREIS, :
:
Claimant, :
:
vs. :
: File Nos. 913904
DUBUQUE STAMPING CO., : 949486
:
Employer, : A R B I T R A T I O N
:
and : D E C I S I O N
:
AMERICAN MANUFACTURERS MUTUAL,:
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
51803
Injury to fingers was not the cause of any permanent
disability and no benefits were awarded. Defendants'
evaluator said 0 percent of impairment. Claimant submitted
no opposing evidence.
Injury to shoulder, neck and back was the cause of 5 percent
industrial disability and claimant was awarded 25 weeks of
permanent disability benefits. Defendants' evaluator said 0
percent impairment. Claimant's chiropractic evaluator said
15 percent impairment. Claimant has persistent pain and
slight loss of range of motion. Claimant was age 38, had a
high school education, was not too retrainable, and had few,
if any, transferable skills. Claimant's seniority allowed
her to change jobs within the plant to accommodate her own
residuals from the injury.
52501 52700
Claimant awarded medical benefits based on the determination
of a peer review evaluation ordered by defendants.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
LUELLA D. MUELLER,
Claimant, File No. 949601
vs. A P P E A L
WINNEBAGO INDUSTRIES, INC., D E C I S I O N
Employer,
Self-Insured,
Defendant.
_________________________________________________________________
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
December 3, 1991 is affirmed and is adopted as the final agency
action in this case with the following additional analysis:
The deputy industrial commissioner, if not expressly, at least
implicitly found that the claimant was not a credible witness.
For the same reasons reviewed and discussed by the deputy, the
industrial commissioner finds the claimant was not a credible
witness.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of October, 1992.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert S. Kinsey, III
Attorney at Law
P.O. Box 679
Mason City, Iowa 50401
Mr. R. Jeffrey Lewis
Attorney at Law
2600 Ruan Center
Des Moines, Iowa 50309
9999
Filed October 30, 1992
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LUELLA D. MUELLER,
Claimant, File No. 949601
vs. A P P E A L
WINNEBAGO INDUSTRIES, INC., D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
9999
Summary affirmance of deputy's decision filed December 3,
1991, with short additional analysis.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LUELLA D. MUELLER, :
:
Claimant, : File No. 949601
:
vs. :
: A R B I T R A T I O N
WINNEBAGO INDUSTRIES, INC., :
: D E C I S I O N
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Luella
D. Mueller, claimant, against Winnebago Industries,
self-insured employer, to recover benefits under the Iowa
Workers' Compensation Act as a result of an alleged injury
sustained on March 1, 1990. This matter came on for hearing
before the undersigned deputy industrial commissioner on
November 14, 1991, in Mason City, Iowa. The record was
considered fully submitted at the close of the hearing. The
record in this case consists of joint exhibits 1 through 11,
claimant's exhibits 12 through 15 and 17, and defendant's
exhibits I and II. The record also consists of claimant's
testimony and testimony from her husband, Richard Mueller;
Daniel Olson; Mark Stanton; and Boyd Eser.
ISSUES
Pursuant to the prehearing report and order dated
November 14, 1991, the parties have identified the following
issues for resolution:
1. Whether claimant sustained an injury on March 1,
1990, which arose out of and in the course of employment
with employer;
2. Whether the alleged injury is a cause of temporary
and permanent disability;
3. The extent of entitlement to weekly compensation for
temporary total disability or healing period benefits and
the time off work for which claimant seeks such benefits;
4. The extent of entitlement to weekly compensation for
permanent disability and the commencement date for such
disability;
5. Whether claimant is entitled to medical benefits
under Iowa Code section 85.27 and whether the expenses for
such benefits are causally connected to her alleged work
injury;
6. Whether defendant is entitled to a credit under Iowa
Page 2
Code section 85.38 for medical expenses paid by Iowa
Benefits under claimant's husband's insurance policy;
7. Whether claimant is entitled to interest, mileage
and costs; and
8. Whether claimant is entitled to penalty benefits
under Iowa Code section 86.13(4).
FINDINGS OF FACT
The undersigned has carefully considered all of the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Claimant was born on July 26, 1956, and completed the
twelfth grade of school in 1975. She received certification
as a geriatric aide after completing course studies at North
Iowa Community College and worked for a short time in a
nursing home. In 1975 she was hired by Winnebago Industries
as a window screener. She worked in this capacity until
October 1979. She did some babysitting after leaving
Winnebago and while raising her two daughters. In October
1987 she returned to Winnebago Industries, part-time, on the
5 p.m. to midnight shift. She was assigned to the Cycle-Sat
Building cleaning executive offices. Her duties included
dusting, washing sinks, vacuuming, and general housekeeping.
In February 1990 she was transferred from Cycle-Sat into the
main plant and cleaned offices in five different buildings.
This job involved primarily vacuuming. She continued her
babysitting service during the day while working evenings at
Winnebago.
In 1990 claimant earned $2,898.20 from her home child
care activities. Claimant testified that she continues to
operate this service, but has reduced the hours and number
of children cared for.
Claimant testified that she experiences muscle spasms,
headaches, and arm and shoulder pain. She attributes her
symptoms to her work activities, particularly vacuuming, and
transporting of a cannister vacuum from the first to the
second floor while cleaning offices in the main building.
Claimant testified that on the second day of her new job she
noticed pain and aching in both arms and muscle spasms in
her neck. By March 2, 1990, she felt intense pain and
sought medical treatment. She was taken off work on March
2, 1990, and has not returned to Winnebago. Claimant
testified to a limited residual functional capacity
including a minimal ability to perform household,
recreational and daily activities due to headaches, muscle
spasms, shoulder, neck and bilateral arm pain.
The pertinent medical evidence of record indicates that
claimant has been seen on a regular basis at Park Clinic
Forest City Office by Jim McGuire, physician's assistant,
since January 1986 for an annual physical examination. In
January and February 1986 she was also seen at the Konen
Chiropractic Clinic with various aches and pains, including
Page 3
neck, low back, shoulder pain and headaches (exhibits 1 and
2).
On March 2, 1990, claimant presented to Mr. McGuire
with complaints of neck and right arm pain. She was taken
off work that day until a more thorough examination could be
conducted (ex. 4, page 1). She was examined by Mr. McGuire
on March 5, 1990, and he diagnosed cervical strain and
spasm. She was started on conservative therapy. A
reevaluation on March 12, 1990, showed no improvement in her
condition and a referral was made to A.J. Wolbrink, M.D.
(ex. 2).
Dr. Wolbrink saw claimant on March 13, 1990, at the
Park Clinic in Mason City, Iowa. After conducting a
physical examination and reviewing x-ray results, his
impression was, "Muscular neck pain, aggravated now by her
work, but secondary to her thoracic kyphosis and
compensatory cervical lordosis." He recommended continuing
with physical therapy, Tylenol for pain and imipramine at
night (ex. 3).
Claimant saw Mr. McGuire on March 26 and April 2, 1990.
He noted "improving and resolving neck strain." Mr. McGuire
felt that claimant could return to limited duty on April 2,
1990, but felt she must avoid lifting over ten pounds,
repeated bending, extension motion with her arms and
vacuuming (ex. 2, p. 4 and ex. 4, p. 6).
Claimant presented her work release and restrictions to
employer, but jobs were not available within her
restrictions.
Claimant saw Mr. McGuire on April 16 and April 30,
1990. She presented with tightness in her neck muscles and
difficulty bending or turning her head. She was instructed
to continue with medication and physical therapy.
On May 8, 1990, claimant saw B.H. Carlson, M.D. His
impression was cervical strain. Claimant was instructed to
continue on the same regimen as prescribed by Mr. McGuire.
On May 12, 1990, claimant called Dr. Carlson after being
contacted by employer regarding a day job mopping floors.
He recommended that she give it a try. However, she felt
that this job would not work out well for her because it
interfered with her daycare service and she was also
concerned that mopping and dumping a pail of water would be
too much for her neck to tolerate (ex. 2, p. 5).
On June 6, 1990, claimant saw K.B. Washburn, M.D.
Claimant related that while she has been unable to return to
work, she has been doing housework such as dishes, making
beds, picking up around the house, doing some laundry and
cooking. Dr. Washburn agreed with Dr. Wolbrink's assessment
that claimant had a preexisting condition, namely, thoracic
kyphosis with resultant cervical lordosis, aggravated by
work activity. He recommended an MRI of the cervical spine.
This was performed on June 8, 1990, and revealed a, "Small
central disc herniation C5-6 and slight central disc
protrusion, C4-5." (ex. 5).
Page 4
Claimant continued to have headaches and occasional
pain into her arms. Therefore, Dr. Washburn felt that a
neurological evaluation should be performed and he referred
her to David W. Beck, M.D. (ex. 3, p. 2).
Dr. Beck saw claimant on June 20, 1990, for evaluation.
On examination, she had full range of motion of her neck,
but pain on motion. She had no motor loss and her reflexes
were symmetric and intact. Cervical spine x-rays taken on
June 6, 1990, revealed no abnormalities. Dr. Beck indicated
that, in his opinion, claimant's neck spasms and headaches
are the result of the small disc protrusion at C5-6. He
recommended a home traction unit for reduction of the disc
bulge and relief of her symptoms.
Claimant saw Dr. Beck for follow-up examination on July
11, 1990. She reported improvement in muscle spasms but,
continued headaches. He prescribed Midrin along with
imipramine (ex. 6, p. 2).
Claimant continued to see Dr. Washburn and on January
15, 1991, showed no improvement in her symptoms (ex. 3, p.
4). She saw Dr. Beck on January 28, 1991, and he reported,
"She is better than when I last saw her in July. She knows
what things aggravate her and tries to avoid them." He
recommended that she avoid repetitive movement of the arms
and neck (ex. 8).
On February 14, 1991, claimant saw Dr. Washburn for a
final evaluation. At this time, he felt that she was not
eligible for a work hardening program because of the
possibility of rupturing the disc in her neck. In an
eight-hour work day, he imposed restrictions including
sitting for two hours at one time before getting up and
moving around; standing and walking for one hour at a time;
lifting and carrying up to two pounds up to one-third of the
day; pushing and pulling a wheeled cart with 25 pounds in it
up to one third of the day; occasional bending and stooping;
reaching above shoulder level with about two pounds weight;
no strong pinching, grasping, squeezing or repetitive
motions with her arms; and no driving more than 20 to 30
miles at one time.
Based on these restrictions, limitations of motion and
underlying disc disease, Dr. Washburn indicated that
claimant has 5 percent impairment to the body as a whole
(ex. 3, p. 4 and ex. 9).
On February 27, 1990, Dr. Beck reported to claimant's
attorney as follows:
It is my opinion that the work activities at
Winnebago Industries as a cleaning person
aggravated the condition for which I evaluated
her. She does have a history of neck pain on and
off prior to this, and she states in the record
that it is similar to the pain she has had on and
off for the past four years. However, this is
worse. Therefore, I think she aggravated a
Page 5
pre-existing condition.
(claimant's exhibit 10)
Dr. Beck indicated that in view of claimant's normal
neurological findings with neck pain, the extent of her
impairment is about 3 percent (ex. 10).
On March 26, 1991, claimant presented to Richard W.
Haas, D.C., with complaints of pain and stiffness in her
neck, arm pain, tingling sensations in her feet, and
headaches. At this time, Dr. Haas initiated chiropractic
treatment which continued through May 1991 and which,
according to claimant, provided no relief or improvement in
her condition.
CONCLUSIONS OF LAW
Claimant has the burden of proving by a preponderance
of the evidence that she received an injury on March 1,
1990, which arose out of and in the course of her
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).
An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).
The injury must both arise out of and be in the course
of the employment. Crowe v. DeSoto Consol. Sch. 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 (l963) 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, 246 Iowa 402, 68 N.W.2d 63.
The words "in the course of" refer to the time and
place and circumstances of the injury. McClure v. Union
et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa
402, 68 N.W.2d 63.
"An injury occurs in the course of the employment when
it is within the period of employment at a place the
employee may reasonably be, and while he is doing his work
or something incidental to it." Cedar Rapids Comm. Sch.
Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union
et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman, 261
Iowa 352, 154 N.W.2d 128.
The supreme court of Iowa in Almquist v. Shenandoah
Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934)
discussed the definition of personal injury in workers'
compensation cases as follows:
While a personal injury does not include an
Page 6
occupational disease under the Workmen's
Compensation Act, yet an injury to the health may
be a personal injury. [Citations omitted.]
Likewise a personal injury includes a disease
resulting from an injury....The result of changes
in the human body incident to the general
processes of nature do not amount to a personal
injury. This must follow, even though such
natural change may come about because the life has
been devoted to labor and hard work. Such result
of those natural changes does not constitute a
personal injury even though the same brings about
impairment of health or the total or partial
incapacity of the functions of the human body.
....
A personal injury, contemplated by the Workmen's
Compensation Law, obviously means an injury to the
body, the impairment of health, or a disease, not
excluded by the act, which comes about, not through the
natural building up and tearing down of the human body,
but because of a traumatic or other hurt or damage to
the health or body of an employee. [Citations
omitted.] The injury to the human body here
contemplated must be something, whether an accident or
not, that acts extraneously to the natural processes of
nature, and thereby impairs the health, overcomes,
injures, interrupts, or destroys some function of the
body, or otherwise damages or injures a part or all of
the body.
On February 19, 1990, claimant commenced her new job
cleaning offices in the main Winnebago plant. She testified
that this job involved only vacuuming and was not as
diversified as the job she had in Cycle-Sat. She vacuumed
offices in five different buildings during the five and
one-half hours she worked. She stated that she used both a
regular commercial upright-type vacuum as well as a round
canister-type vacuum. She alleged that on the first night
of her new job, she had to carry a canister vacuum up one
flight of stairs because there was no vacuum available on
the second floor. The second night at work, she experienced
pain and aching in her arms, muscle spasms and headaches.
Eight days later she informed her supervisor, Daniel Olson,
that she needed to see a doctor because she was in so much
pain. In her deposition she stated that she told her
supervisor that her arms were hurting and she had muscle
spasms, but did not tell him that she had to carry the
canister vacuum up stairs (ex. 15, p. 91).
Claimant has the burden of proof to show by a
preponderance of the evidence that she received an injury
which arose out of and in the course of her employment with
employer. Arising out of implies some causal relation
between the employment and the injury. Volk v.
International Harvester Co., 252 Iowa 298,106 N.W.2d 649
(1960).
Page 7
Claimant has not met her burden of proof. She
testified that she worked alone in the building at night and
no one witnessed the event which allegedly led to her neck
injury. Claimant's supervisor, Daniel Olson, testified that
she complained to him about her new job the very first day
she was moved to the main plant. She felt that it was a
dirty place to work and she resented the change in duties.
She mentioned to him that she was getting a doctor's
statement in order to go on medical leave, but would be
applying for other jobs while on leave. He stated that in
his experience, employees do not regularly carry canister
vacuums up stairs. Occasionally, vacuums are carried down
stairs. Mr. Olson testified that he noticed a change in
claimant's attitude after she was moved to the main
building. She began coming late to work and constantly
complained about the working conditions. He also stated
that the job in the main plant was lighter work than that in
Cycle-Sat. Mr. Olson stated that claimant never told him
that she needed to see a doctor because she was having
severe pain in her arms, hands, neck, and shoulders.
However, she did tell him that her husband was going to
check with personnel as to whether quitting her job without
giving two weeks notice would effect her chances of
returning.
Boyd Eser testified that he called claimant at home
during the first week she had changed jobs because he was
told that she was upset about the move. During the course
of the conversation, she complained about the dirty
atmosphere of the main plant and threatened to quit. She
indicated that she was being treated unfairly. At the time
of this conversation, she never mentioned any physical
complaints.
In rebuttal testimony claimant denied all of the
allegations made by Mr. Olson and Mr. Eser. Her husband
also denied that he inquired about the effect of her
quitting without notice on her chances of being rehired by
the company.
Claimant's credibility is an issue in this case.
Claimant has presented no corroborating evidence supporting
a work-related injury with employer. The record does show
that claimant had a preexisting medical condition of
thoracic kyphosis with resultant cervical lordosis resulting
in muscle aching. Dr. Beck attributed claimant's neck
spasms and headaches to a small disc protrusion found at
C5-6. Dr. Beck further opined that claimant's work
activities at Winnebago Industries aggravated this
condition. However, Dr. Beck and all of the other
physicians who treated and examined claimant, only knew what
she told them. She did not disclose her continuing child
care activities. Their opinions as to causal connection are
not relevant if claimant cannot demonstrate that she
sustained a work-related injury which aggravated a
preexisting condition. Claimant's complaints coincidentally
surfaced at the same time that she was transferred from one
job to another. There is no evidence in the record which
supports claimant's description of the injury.
Page 8
It is clear that claimant engaged in other activities,
outside of work, which could have aggravated her condition.
Specifically, claimant operated a day care service in her
home. She provided eight hours of care to infants between
the ages of one and four. She performed activities such as
lifting, turning, feeding, and all other activities
associated with routine child care (ex. 15, p. 14). It is
just as conceivable that claimant could have aggravated her
preexisting condition by performing the physical activities
required of an active child care worker. She has engaged in
this business since 1979 and only recently reduced her hours
from eight to six per day.
Claimant's complaints appear to be far out of
proportion to the clinical and laboratory findings in the
record. When examined by Dr. Beck on June 20, 1990, she had
full range of motion of her neck, but pain on motion.
X-rays of the cervical spine showed no abnormalities. An
MRI scan showed a small disc protrusion at C5-6. Dr.
Washburn gave her significant restrictions only because she
subjectively complained that everything she does aggravates
her pain. Dr. Beck indicated that she is normal
neurologically, but has subjective complaints of pain.
Therefore, he gave her a rating of only 3 percent.
After carefully considering the total evidence in this
case, the undersigned concludes that claimant has not met
her burden of proving by a preponderance of the evidence
that she sustained an injury on March 1, 1990, which arose
out of and in the course of her employment with employer.
There is no direct chain of causation apparent between
claimant's alleged work incident and her current disability.
This issue is dispositive of the entire case and further
analysis is unnecessary.
ORDER
THEREFORE, IT IS ORDERED:
That claimant take nothing from this proceeding.
The parties shall pay their own costs in this action.
Signed and filed this ____ day of December, 1991.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Robert S. Kinsey, III
Attorney at Law
Page 9
214 N. Adams
PO Box 679
Mason City, IA 50401
Mr. R. Jeffrey Lewis
Attorney at Law
2600 Ruan Ctr
Des Moines, IA 50309
51402.30
Filed December 3, 1991
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LUELLA D. MUELLER, :
:
Claimant, : File No. 949601
:
vs. :
: A R B I T R A T I O N
WINNEBAGO INDUSTRIES, INC., :
: D E C I S I O N
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
51402.30
Claimant failed to prove by a preponderance of the evidence
that she sustained an injury on March 1, 1990, which arose
out of and in the course of her employment with employer.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
SANDRA PERRY, :
: File No. 949644
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
MERCY HOSPITAL MEDICAL CNTR., :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by the claimant,
Sandra Perry, against her self-insured employer, Mercy Hospital
Medical Center, to recover benefits under the Iowa Workers'
Compensation Act as a result of an injury sustained on April 11,
1990. This matter came on for hearing before the undersigned
deputy industrial commissioner at Des Moines, Iowa on July 30,
1992. A first report of injury has been filed. The record con
sists of the testimony of claimant; of Robert Perry; of Grace C.
Johnson; and of Tamara Singleton; as well as joint exhibits 1
through 21.
ISSUES
Pursuant to the hearing assignment order, the prehearing
report and the oral stipulation of the parties, the parties have
stipulated to the following:
1. That claimant's gross weekly wage was $252.40 and that
claimant was married and entitled to two exemptions at the time
of her injury resulting in a weekly compensation rate of $168.11.
2. That claimant did receive an injury arising out of and
in the course of her employment on April 11, 1990.
3. That a causal relationship exists between claimant's
injury and temporary total disability with claimant entitled to
temporary total disability benefits from April 27, 1990 through
May 15, 1990 and from October 25, 1990 through February 10, 1991.
4. That the commencement date for any permanent partial
disability benefits due claimant is February 11, 1991.
Page 2
Issues remaining to be decided are:
1. Whether a causal relationship exits between claimant's
injury and claimed permanent disability; and,
2. The extent of any permanent disability entitlement.
FINDINGS OF FACT
The deputy, having heard the testimony and considered the
evidence, finds:
Claimant is a 47-year-old married lady who has worked in
non-skilled clerical and food service industries jobs. Her
primary work history has been in child care, however. Claimant
has a two year degree as a child development specialist from Des
Moines Area Community College and has also accumulated a number
of continuing education credits in that area. Claimant began
full time work at the Mercy Hospital Child Development Center in
April 1989 working in the 18 month to 2-year-old room. She cared
for six 2-year-olds. She engaged in all activities required to
care for toddlers, including lifting and carrying them, diaper
ing, fixing meals, storytelling and reading and engaging them in
small and large motor activities.
Claimant was injured on April 11, 1990 in the course of her
employment when she attempted to catch a child who had fallen
from a chair behind her. The child fell over claimant's left
shoulder; claimant fell to her right, twisting her back.
Claimant felt pain in her back, in both hips and down the poste
rior aspect of her left leg. David D. Berg, M.D., of Iowa
Occupational Medicine, examined claimant on the injury date. He
found claimant extremely tender over the L4-5 and L5-S1 disc
spaces and soft tissues bilaterally. Straight leg raising was
positive on the left at 30 degrees and on the right at 45
degrees. No neuro-motor or vascular deficits were noted; DTR's
were positive 2/4 bilaterally.
Dr. Berg prescribed Motrin and took claimant off work.
Claimant returned to light duty work in May 1990 serving as a
receptionist for the Child Development Center. When in pain,
claimant answered the phone in the Center's lounge while lying on
the floor. Claimant subsequently returned to her regular job in
fall. She voluntarily switched to working with 18-month-olds in
a head teacher's job with better hours. Claimant was then using
a TENS unit; she reported she turned it up after several hours of
work. Claimant went off work again in October 1990.
James L. Blessman, M.D., recommended claimant undergo pain
center treatment. Claimant entered the Mercy Pain Center for
four weeks in January - February 1991. Claimant was released for
light duty on February 11, 1991 with a 20 pound, floor to waist
lifting restriction. Subsequent to that work release claimant
returned to work in a light duty capacity in Mercy's radiology
department. Claimant secured written medical reports to X-ray
folder jackets.
Claimant reported that as a result of her pain she began to
use personal leave rather than stay in her light duty job. On
March 14, 1991, claimant was terminated for failure to call in on
Page 3
three consecutive dates. Claimant indicated that her termination
resulted from a miscommunication with Tamara Singleton, R.N., of
Mercy Employee Health Services in that claimant had indicated to
Ms. Singleton that claimant would be absent Thursday through
Friday meaning from Thursday, March 7, 1991 through Friday of the
following week. Nurse Singleton recorded that claimant would be
absent on Thursday, March 7, 1991 and Friday, March 8, 1991.
Claimant subsequently grieved her termination. Her grievance was
denied at the first level. She did not further pursue the
grievance. It is found that defendant employer did not act
improperly in terminating claimant and did not terminate claimant
on account of her work injury.
Claimant is not now working. Claimant reported to Donna J.
Bahls, M.D., on April 23, 1991 that claimant is not interested in
seeking full time work since her husband is retired and does not
want her to work full time. Claimant also then reported that she
has no financial need to work and so testified at time of hear
ing. It is expressly found that claimant is significantly lack
ing in motivation to work.
Claimant continues to report severe pain. Claimant uses a
massaging vibrator for pain; claimant uses a TENS unit for the
pain; claimant uses heat and ice for pain. Claimant also does
water exercises two to three times per week in Osceola. Claimant
no longer vacuums, sweeps, or does general housecleaning.
Claimant does not drive for greater than 20 miles. Claimant
reported that on her worse days she stays in bed, takes pain
medication and uses a heating pad and a special pillow. On
moderate days she naps; on good days she has discomfort only but
is not pain free.
Claimant has had a CT scan of the lumbosacral spine, MRI of
the lumbosacral spine and an EMG of the left lower extremity.
All three tests were within normal limits.
Dana Simon, M.D., on December 7, 1990, indicated that
claimant had clinical evidence of left L5 radiculopathy if not Sl
radiculopathy although there was no testing evidence for such.
Dr. Simon administered an epidermal steroid injection. Claimant
indicated some relief from such in that she was able to ride in
the car for approximately an hour after such.
William R. Boulden, M.D., an orthopedic surgeon, first saw
claimant on May 15, 1990. His impression was of mechanical back
pain with referred left leg pain. He opined that claimant's
signs and symptoms were not consistent with a herniated disc.
Dr. Boulden and Thomas W. Bower, LPT, subsequently examined
claimant in July 1991. On July 22, 1991, Mr. Bower and Dr.
Boulden opined that there were no objective reasons for
claimant's ongoing complaints. They characterized claimant as
pain fixated and opined she had no permanent partial impairment
as a result of her work injury. In his deposition of April 20,
1992, Dr. Boulden opined that claimant's complaints of thoracic
back pain in October 1990 did not relate to the April 1990 injury
and low back complaints since claimant had no complaints of tho
racic back pain until approximately two months after she was
initially seen. Dr. Boulden further opined that claimant's left
arm complaints of April 1991 were not related to the April 1990
injury for similar reasons. Dr. Boulden stated nothing was
Page 4
"surgically wrong" with claimant's back and that she did not need
further medical treatment. He opined that claimant reached maxi
mum medical improvement in July 1990.
On December 12, 1990, a neurologist to whom Dr. Berg had
referred claimant, S. Randy Wilson, M.D., opined that a direct
relationship existed between claimant's chronic lumbosacral
strain and her employment injury. Dr. Wilson declined to give an
opinion as to permanent partial impairment.
Grace C. Johnson, licensed physical therapist, initially
evaluated claimant on October 31, 1990. On evaluation, claimant
under Waddell's test showed positive signs for symptom magnifica
tion illness.
Ronald C. Evans, D.C., evaluated claimant on April 13, 1992.
Dr. Evans indicated that claimant's work injury had produced
moderate to severe left lumbosacral spinal sprain and that
claimant then presented with chronic lumbosacral myofascitis. He
noted that some sciatica was present although specific nerve root
involvement could not be identified. Claimant scored six on the
Borg pain scale index. Dr. Evans felt that score indicated
either severe pathology or symptom magnification behavior.
Claimant had a score of three on the Waddell symptom magnifica
tion test. Given such, Dr. Evans concluded that symptom magnifi
cation existed. Dr. Evans reported that great discrepancies
existed between claimant's tested and observed spinal function.
He indicated that claimant's range of motion losses did not
equate with any factor other than muscular pain and "patient
fear." Some lost tone in the left leg was noted but not true
atrophy. The left hip had mild signs of capsulitis but the joint
itself functioned well. Dr. Evans assigned claimant a permanent
partial impairment rating of five percent of the body as a whole
under the AMA Guides for lumbosacral myofascitis. Dr. Evans
characterized such as "global soft tissue rating for the low
back." Dr. Evans opined:
There is no medical reason to believe the patient is
likely to suffer injury, harm, or further medical
impairment by engaging is [sic] usual activities of
daily living or other activities necessary to meet per
sonal, social or occupational demands.
There is no medical reason to believe other restric
tions or accommodations are necessary to help the
patient carry out usual activities or meet personal,
social and occupational demands.
(Exhibit 17, page 7)
Dr. Boulden's opinion that claimant has no permanent partial
impairment related to her April 11, 1990 work injury is accepted
over Dr. Evans' opinion and assignment of a five percent perma
nent partial impairment rating. Dr. Boulden is a board certified
orthopedic surgeon who participated in claimant's treatment sub
sequent to her work injury. Dr. Evans is a chiropractic physi
cian who saw claimant for evaluation only. Given such, Dr.
Boulden's opinion is entitled to greater weight than is Dr.
Evans' opinion. Furthermore, Dr. Boulden's opinion that claimant
has no permanent partial impairment causally related to her work
Page 5
injury is more consistent with Dr. Evans' overall findings that
claimant engages in symptom magnification and with Dr. Evans'
belief that claimant is not likely to suffer injury, harm or med
ical impairment by engaging in her usual activities of daily
living or other activities necessary to meet personal, social or
occupational demands and his belief that claimant needs no fur
ther restrictions or accommodations to engage in usual activities
of daily living or meet routine life demands.
S. Randy Winston, M.D., in December 1990, opined that causal
relationship existed between claimant's diagnosis of chronic lum
bosacral strain and her employment. That statement is not suffi
cient to carry claimant's burden of establishing a causal rela
tionship between her work injury and claimed permanent disabil
ity, however. The record does not demonstrate that Dr. Winston
had the benefit of having reviewed claimant's full history and
treatment including the information regarding symptom magnifica
tion presented in the record as a whole. For that reason, his
opinion is entitled to lesser weight.
Claimant is expressly found to be an individual who engages
in symptom magnification. It is expressly found that claimant
has few objective findings to support her continuing complaints
of pain. It is further expressly found that the record does not
reflect that claimant's work injury either aggravated or lit up
her propensity for symptom magnification such that claimant
should be entitled to any recovery on account of a causal rela
tionship between the work injury and her propensity for symptom
magnification. Medical evidence on this causation issue was not
presented. It appears that claimant's work injury, at best, pro
vided claimant a stage for displaying her symptom magnification
behavior. Recovery is not committed where employment merely pro
vides a stage for a nervous injury. Newman v. John Deere Ottumwa
Works of Deere & Co., 372 N.W.2d 199 (1985).
It is expressly found that claimant has not established the
requisite causal connection between her April 11, 1990 work
injury and claimed permanent partial disability. In that the
requisite causal connection does not exist, no permanent partial
disability entitlement exists.
CONCLUSIONS OF LAW
The claimant has the burden of proving by a preponderance of
the evidence that the injury is a proximate cause of the disabil
ity on which the claim is based. A cause is proximate if it is a
substantial factor in bringing about the result; it need not be
the only cause. A preponderance of the evidence exists when the
causal connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980);
Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974).
The question of causal connection is essentially within the
domain of expert testimony. The expert medical evidence must be
considered with all other evidence introduced bearing on the
causal connection between the injury and the disability. The
weight to be given to any expert opinion is determined by the
finder of fact and may be affected by the accuracy of the facts
relied upon by the expert as well as other surrounding circum
stances. The expert opinion may be accepted or rejected, in
Page 6
whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903
(Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa
1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867
(1965).
While a claimant is not entitled to compensation for the
results of a preexisting injury or disease, its mere existence at
the time of a subsequent injury is not a defense. Rose v. John
Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the
claimant had a preexisting condition or disability that is mate
rially aggravated, accelerated, worsened or lighted up so that it
results in disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962);
Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d
299 (1961).
A treating physician's testimony is not entitled to greater
weight as a matter of law than that of a physician who later
examines claimant in anticipation of litigation. Weight to be
given testimony of physician is a fact issue to be decided by the
industrial commissioner in light of the record the parties
develop. In this regard, both parties may develop facts as to
the physician's employment in connection with litigation, if so;
the physician's examination at a later date and not when the
injuries were fresh; his arrangement as to compensation; the
extent and nature of the physician's examination; the physician's
education, experience, training, and practice; and all other fac
tors which bear upon the weight and value of the physician's tes
timony. Both parties may bring all this information to the
attention of the fact finder as either supporting or weakening
the physician's testimony and opinion. All factors go to the
value of the physician's testimony as a matter of fact not as a
matter of law. Rockwell Graphic Systems, Inc. v. Prince, 366
N.W.2d 176, 192 (Iowa 1985).
As is noted in the above findings of fact, claimant has vir
tually no objective findings to substantiate her claim of an
ongoing permanent disability on account of her April 11, 1990
work injury. Claimant's continuing subjective complaints and her
tendency to symptom magnify are insufficient to establish the
existence of a medical condition significant enough to be consid
ered a permanent disability as contemplated in the workers' com
pensation law. Claimant has not established a causal relation
ship between her injury and her claimed permanent disability.
In that permanent disability must exist prior to an award of
permanent partial disability benefits, claimant has likewise not
established any entitlement to an award of permanent partial dis
ability benefits.
ORDER
THEREFORE, IT IS ORDERED:
Claimant take nothing from this proceeding.
Claimant pay costs of this proceeding pursuant to rule 343
IAC 4.33.
Page 7
Signed and filed this ______ day of ____________, 1992.
______________________________
HELENJEAN M. WALLESER
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Barry Moranville
Attorney at Law
West Bank Building STE 212
1601 22nd Street
West Des Moines, Iowa 50265
Mr. Stephen W. Spencer
Attorney at Law
218 6th Ave STE 300
P O Box 9130
Des Moines, Iowa 50306
1108; 1108.20
Filed August 19, 1992
HELENJEAN M. WALLESER
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
SANDRA PERRY, :
: File No. 949644
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
MERCY HOSPITAL MEDICAL CNTR., :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
1108; 1108.20
No causal connection found between claimant's minor work
injury and her continuing complaints. Evidence established
claimant was a symptom magnifier whose complaints were
inconsistent with objective findings. Work injury did not
lite up claimant's propensity for symptom magnification but
merely provided a stage for displaying it under Newman v.
John Deere Ottumwa Works of Deere & Co., 372 N.W.2d 199
(Iowa 1985).
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
JAMES PAYTON, :
:
Claimant, :
:
vs. :
: File No. 949693
FARNER-BOCKEN COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
ROYAL INSURANCE, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by James
Payton against his former employer based upon an admitted
injury of December 7, 1989. The primary disputed issue is
claimant's claim for permanency benefits. He contends that
he is permanently, totally disabled and relies upon the
odd-lot doctrine. Claimant also seeks to recover the
medical expenses shown in exhibits 9, 10, 11, and 12.
The case was heard at Cedar Rapids, Iowa, on May 16,
1994. The record consists of joint exhibits 1 through 12;
defendants' exhibits A through D and testimony from James
Payton, Clyde Satterly and Charles Perrin.
FINDINGS OF FACT
Having considered all the evidence received, together
with the appearance and demeanor of the witnesses, the
following findings of fact are made:
James Payton fell while at work on December 7, 1989.
He initially sought chiropractic care and then received care
from Alan C. Robb, M.D., a family practitioner. (exhibit
3). Claimant continued to be symptomatic. He was evaluated
by John Walker, M.D. Dr. Walker found claimant to be very
tender but the neurological examination was normal. The
diagnosis was a sprain of the left and right sacroiliac
joints and of L3 through S1. Treatment in the nature of
chiropractic adjustments and other physical therapy was
recommended together with a low back support. (ex. 5).
According to claimant he saw Dr. Walker four or five times
but did not recover.
Starting in July 1990 claimant began treating with
James B. Worrell, M.D., a neurologist. Dr. Worrell also
Page 2
found claimant to be very tender in the lumbosacral area but
to have a normal neurologic examination. He diagnosed
severe lumbar strain syndrome. X-rays showed only minimal
degenerative changes. (ex. 6, pages 1-2). On April 10,
1991, Dr. Worrell noted that claimant reported his pain to
be in the range of 1 to 4 on a scale of 10. Claimant had
been extensively tested and studied at the University of
Iowa Hospital Spine Center but nothing had produced
significant improvement. An MRI was conducted on August 31,
1990 which showed no significant findings. An EMG was also
interpreted as normal. (defendants' ex. D3, pp. 15-16; def.
ex. D5, p. 43). A functional capacity evaluation conducted
at the University of Iowa on June 20, 1990, showed claimant
to be capable of performing nonrepetitive lifting in the
range of 20 pounds and lifts using only his arms in the
range of 30 pounds. (def. ex. D5, p. 40). Dr. Worrell
reported that claimant could return to work with
restrictions of lifting in the range of 20 to 25 pounds,
nonrepetitively. (ex. 6, p. 3). By November 6, 1991, Dr.
Worrell reported that claimant has myofascial syndrome
related to the December 1989 injury. He indicated that
treatment had been totally unsuccessful, that claimant did
not have a herniated disc. He assigned a permanent
impairment rating of 6 percent of the body as a whole. (ex.
6, p. 8; def. ex. D2, p. 13).
Claimant was sent to therapy at the Bettendorf physical
therapy center in 1991. He produced inconsistent results
which were interpreted as indicating symptom magnification.
(def. ex. D1). In 1992 claimant was seen by Saturino
Ortega, M.D., and diagnosed with a depressive disorder. Dr.
Ortega attributed the depressive problem to the injury, back
pain, ineffective treatment, inability to work, and
financial problems. (ex. 2, pp. 1-4). The diagnosis of
depression was confirmed by Kenneth J. Herrmann, M.D. (ex.
8, pp. 11-12). Claimant was treated successfully with
chemotherapy and psychotherapy. His medication was
discontinued. In July 1993 Dr. Ortega reported that there
was no evidence of depression in that claimant had been
doing quite well without being on any anti-depressant.
(def. ex. D7).
Since the injury claimant was off work for a
substantial period of time. There were efforts to return
him to work which ultimately proved unsuccessful. About the
only function which claimant desired to perform was placing
tax stamps on cigarettes. Claimant ceased going to work
when he was assigned to refurbish a rest room. Claimant did
not attempt to perform any part of the project.
This case presents a situation in which there are
minimal objective findings of significant physical injury
yet there are subjective symptoms which seem to be out of
proportion to the objective medical findings. The only
objective medical finding which has been found is minimal
degenerative changes. (ex. 6, pp. 1-2). Bakkiam Subbiah,
M.D., who evaluated claimant in November 1991 felt that
Page 3
claimant had mechanical lower back pain that was most likely
secondary to osteoarthritic changes in the lower back. He
recommended that claimant resume work and over a period of
six to eight weeks he should be back into his normal work
routine. (def. ex. D4, pp. 19-24). Simply stated, there is
no objective basis in the record of this case which
indicates any substantial physical disability associated
with the condition of claimant's back. The undersigned does
not doubt, however, that claimant experiences pain in the
range of 1 to 4 on a scale of 10 with regard to his back.
It is likely that he has constant pain regardless of whether
or not he is particularly active.
Claimant also developed a depressive disorder as a
result of the injury and its consequences. Fortunately for
claimant the disorder was promptly and effectively treated.
There is no indication that the depression continues or that
it has produced any permanent disability. The evidence in
the record is to the contrary.
It is therefore found that the injury of December 7,
1989 produced a myofascial syndrome in claimant's low back
which causes him pain and that the condition is not likely
to resolve. It also produced a depressive disorder which
was not permanent. Claimant remains capable of being
gainfully employed within the restrictions recommended by
Dr. Worrell and other health care providers. He is not
capable of performing repetitive activity with his back and
needs to be able to change position approximately every 30
minutes.
Exhibit 11 contains a number of prescriptions. It is
found that those prescribed by Drs. Ortega and Worrell were
for treatment of this injury. Those prescribed by Dr. Robb
were not incurred in providing treatment for this injury.
The charges in exhibit 9 are found to have been incurred in
treating the psychological injury and depression. It is
noted that in joint exhibit 12 the diagnosis made by Dr.
Robb included depression. It appears that it was this
diagnosis which led claimant into the course of care which
cured his depression. Accordingly, it is found that the
charges in exhibit 12 were produced as a result of the
injury. Claimant testified at hearing that the pain center
treatment which had been provided for this injury
recommended that he obtain dumbbells to use for exercise.
No corroboration of that testimony appears in the record of
the case. It cannot be determined whether the dumbbells
were for his general fitness and well-being or whether they
were for treatment of the back injury itself.
CONCLUSIONS OF LAW
At the time of hearing it was indicated that the
entitlement to healing period benefits was not in dispute.
The dispute deals with the permanency claim and medical
expenses.
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
Page 4
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
Industrial disability or loss of earning capacity is a
concept that is quite similar to impairment of earning
capacity, an element of damage in a tort case. Impairment
of physical capacity creates an inference of lessened
earning capacity. The basic element to be determined,
however, is the reduction in value of the general earning
capacity of the person, rather than the loss of wages or
earnings in a specific occupation. Post-injury earnings
create a presumption of earning capacity. The earnings are
not synonymous with earning capacity and the presumption may
be rebutted by evidence showing the earnings to be an
unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531
(Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa
1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973);
Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516
(Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County,
Thirty-fourth Biennial Report of the Industrial Commissioner
218 (1979); 2 Larson Workmen's Compensation Law, sections
57.21 and 57.31.
In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa
1985), the Iowa court formally adopted the "odd-lot
doctrine." Under that doctrine a worker becomes an odd-lot
employee when an injury makes the worker incapable of
obtaining employment in any well-known branch of the labor
market. An odd-lot worker is thus totally disabled if the
only services the worker can perform are "so limited in
quality, dependability, or quantity that a reasonably stable
market for them does not exist." Guyton, 373 N.W.2d at 105.
The burden of persuasion on the issue of industrial
disability always remains with the worker. When a worker
makes a prima facie case of total disability by producing
substantial evidence that the worker is not employable in
the competitive labor market, the burden to produce evidence
of suitable employment shifts to the employer. If the
employer fails to produce such evidence and if the trier of
Page 5
fact finds the worker does fall in the odd-lot category, the
worker is entitled to a finding of total disability.
Guyton, 373 N.W.2d at 106. Even under the odd-lot
doctrine, the trier of fact is free to determine the weight
and credibility of evidence in determining whether the
worker's burden of persuasion has been carried, and only in
an exceptional case would evidence be sufficiently strong as
to compel a finding of total disability as a matter of law.
Guyton, 373 N.W.2d at 106.
It was stipulated that claimant fell on December 7,
1989. Thereafter he went into an extended course of medical
care and absences from work, none of which seemed to improve
the condition of his back. His subjective symptoms have not
been corroborated by objective medical findings, even though
extensive and appropriate diagnostic testing has been
performed. The only diagnosis which has been made is of a
myofascial syndrome or a strain. Nevertheless, the
condition has proved to be permanent. The activity
restrictions which have been imposed are based upon
functional capacity evaluations. There are a number of
indications in the record that the claimant has not been
particularly frank and sincere about his efforts to resume
work. The activity restrictions which have been imposed
would not prohibit him from being gainfully employed.
Claimant receives social security disability. It is noted
that the disability award occurred at a time when the
depression was ongoing. Claimant is not now handicapped by
depression.
When claimant's age, education, work background, and
physical restrictions are considered, together with the fact
of his failure to make a substantial bona fide effort to
find employment, it is determined that he has a 20 percent
permanent partial disability. This entitles him to recover
100 weeks of compensation benefits under the provisions of
section 85.34(2)(u). This case fails to make a prima facie
showing of total disability and it is not one in which the
odd-lot doctrine is applicable.
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Section 85.27. Holbert v.
Townsend Engineering Co., Thirty-second Biennial Report of
the Industrial Commissioner 78 (Review-reopen 1975).
Claimant is entitled to recover the expenses shown in
exhibits 9 and 12. Defendants are also responsible for
$261.77 of the charges shown in exhibit 11. Defendants are
also responsible for claimant's mileage in the amount of
$48.30.
Since claimant has prevailed in this proceeding he is
Page 6
entitled to recover the costs as set forth in his motion.
These include the filing fee of $65, the fee for a report
from Dr. Worrell in the amount of $80 and the deposition
transcript for the claimant's deposition in the amount of
$90.60. There is no provision for recovery of medical
records, however. The amount of costs to be recovered is
therefore $235.60.
ORDER
IT IS THEREFORE ORDERED that defendants pay James
Payton one hundred (100) weeks of compensation for permanent
partial disability at the stipulated rate of one hundred
ninety-four and 05/100 dollars ($194.05) per week payable
commencing September 4, 1991. The entire amount thereof is
past due and shall be paid to claimant in a lump sum
together with interest after credit is given for all
permanent partial disability benefits which have been
previously paid.
It is further ordered that defendants pay claimant the
sum of one thousand five hundred ninety-seven and 07/100
dollars ($1,597.07) pursuant to the provisions of section
85.27 for his medical expenses and mileage.
It is further ordered that defendants pay to claimant
the sum of two hundred thirty-five and 60/100 dollars
($235.60) as and for the costs of this proceeding pursuant
to rule 343 IAC 4.33.
It is further ordered that defendants file claim
activity reports as requested by this agency pursuant to
rule 343 IAC 3.1.
Signed and filed this __________ day of September,
1994.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Thomas Currie
Attorney at Law
4040 First Ave N.E.
PO Box 998
Cedar Rapids, Iowa 52406-0998
Mr. Richard Book
Attorney at Law
500 Liberty Bldg
Des Moines, Iowa 50309-2421
1108.20 1803 2204 2501
Filed September 20, 1994
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
JAMES PAYTON,
Claimant,
vs.
File No. 949693
FARNER-BOCKEN COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
ROYAL INSURANCE,
Insurance Carrier,
Defendants.
------------------------------------------------------------
1108.20 1803 2204 2501
Claimant fell and developed a painful back condition but no
objective evidence of serious injury was found despite
extensive testing. Claimant later developed a depression
which was found to have been proximately caused by the
injury. Claimant made less than exemplary efforts to resume
employment. The depressive condition was effectively
treated and resolved without any evidence of permanency.
Claimant awarded 20 percent permanent partial disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
FRED BEBOUT,
Claimant,
vs. File Nos. 949915/1053466
HY-VEE FOOD STORES, INC., A R B I T R A T I O N
Employer, D E C I S I O N
and
EMC INSURANCE COMPANIES,
Insurance Carrier,
and
SECOND INJURY FUND OF IOWA
Defendants.
STATEMENT OF THE CASE
These cases came on for hearing on June 13, 1995 at Des
Moines, Iowa. These are proceedings in arbitration wherein
claimant seeks compensation for permanent partial disability
as a result of alleged injuries occurring on May 1, 1987,
November 1, 1989, May 17, 1990 and July 20, 1990. Claimant
had filed the two petitions referred to by the file numbers
above, representing injuries of May 1, 1987 and May 17,
1990. When the hearing report was presented and signed by
both parties it had the four respective dates set out
therein. Normally, in a situation of this kind, one would
have four files and usually multiple filing fees unless all
of the cases involving the same claimant and defendant are
filed at the same time. The record in the proceeding
consists of the testimony of the claimant and Allen Dix,
joint exhibits 1 through 4 and defendants' exhibit A.
ISSUES
The issues for resolution are:
1. Whether an injury arose out of and in the course of
claimant's employment on the respective injury dates;
2. Whether there is any causal connection as to
claimant's alleged disability and the respective alleged
injury dates;
3. The commencement date at which benefits would begin.
The additional issues as to file no. 1053466 are:
1. Whether claimant filed his action timely in
accordance with Iowa Administrative Code 85.26
(statute of limitations);
2. Whether claimant gave timely notice of his injury
in accordance with Iowa Administrative
Code 85.23 (notice statute).
FINDINGS OF FACT
The undersigned deputy, having heard the testimony and
considered all the evidence finds that:
Claimant is a 60 year old high school graduate who has
had no further education. He last worked for the defendant
employer May 17, 1990 and was with the defendant corporation
for almost 29 years, the last 20 years being continuous,
until he last worked.
Claimant also testified through his deposition on March
6, 1995. (Joint Exhibit 4)
Claimant described the nature of his work which the
majority of claimant's time with the defendant employer
involved working as a meat cutter and then a seafood service
meat manager, the latter position claimant holding from
sometime in 1986 until March 1989.
In April 1988 claimant had a heart attack, after which
time he returned to work around August 4, 1988 to light
duty. Around October 2, 1988 until November 26, 1988 he was
on full duty, continuing as seafood service meat manager.
Claimant then was off from November 26, 1988 through March
6, 1989 for anxiety.
Claimant testified that around March 7, 1989 to
December 13, 1989, after he had returned to work, his job
was basically stocking the meat department with luncheon
meat, cheeses and stocking shelves in the department.
Claimant said that when he first returned to work in March
1989, he tried to cut meat but couldn't.
Following claimant's approximately nine months back to
work, that ended December 13, 1989, claimant was then again
off work December 14, 1989 through April 5, 1990 because of
lung problems. April 6, 1990 to May 17, 1990 claimant had
returned to work servicing the counter and stocking luncheon
meat, cheeses, etc. May 17, 1990 was claimant's last day of
work and he has not worked since that time to the present,
nor has he looked for any work from that time to the
present, either with the defendant employer or with any
other employer.
Claimant then had surgery on May 17, 1990 on his left
hand and arm. On July 20, 1990 he had surgery on his right
hand and arm. These two surgery dates are also reflected in
the claimant's alleged two injury dates.
Claimant described the nature of his jobs and what they
entailed as far as the use of his hands, the tools used and
the requirement of holding meat with pressure, cutting with
pressure, cutting and slicing meat and sawing
meat bones with a saw. He also described how his profession
has changed as far as the nature of the meat he had to cut.
When claimant first began working he had to carry a quarter
of a carcass from the cooler to the table and cut it up into
the respective pieces. Now, and since approximately 1986,
the meat is brought in as boxed beef and there are various
parts of the carcass already carved up into the respective
categories like ribs, loins, etc. He indicated the amount
of weight he would have to lift or carry was substantially
reduced when they went to boxed beef versus having to cut up
a quarter of beef.
Claimant also had to handle fish with the weight being
anything from around 3/4 of a pound to a 20 pound salmon.
He described how he had to handle and cut the fish. In many
instances, the fish was delivered in whole for the claimant
to cut and fillet.
Claimant testified as to how he was exposed to
chemicals when they had to cut the meat wrapping with a hot
wire during approximately 15 years of the time he was with
the defendant employer. He said they later had a ceramic
cutting mechanism that cut the wrapping and did not let off
as much fumes and at that time, they also used a different
meat wrapping cellophane.
Claimant also described how he would be going in and
out of the cooler and the varying temperatures to which he
would be exposed while cutting meat or working in the meat
department.
Claimant then testified as to the respective alleged
injuries. The first alleged injury being May 1, 1987, in
which he indicated he had started noticing problems grasping
cold things, his hand would go into a claw and he would have
pain in it. He said it gradually got worse to the extent
that he couldn't saw or grab a knife.
He next described the November 1, 1989 alleged injury
in which he is contending his asthma was either caused or
was substantially aggravated by his work conditions,
particularly the fumes from cutting of the meat wrapping
and/or the exposure to the cold in the meat department.
Claimant then testified as to his May 17, 1990 alleged
injury to his left hand and arm, at which time he did not
return to work, and then his subsequent similar surgery on
July 20, 1990 to his right hand and arm. Claimant contended
that prior to his surgery, and as one of his reasons for
quitting work on May 17, 1990, was that he was unable to cut
meat and that he was unable to handle, grasp or stock the
luncheon meat, etc. He also said that he was having
breathing problems.
Claimant testified that he had a major heart attack
April 1, 1988, after which time he had an angiopalsty
surgery, which was the balloon procedure. Claimant returned
to light duty work after that attack on August 4, 1988. He
had lifting restrictions and breathing problems. Claimant
later contended that the breathing problems were later
involving his lungs, and not his heart. He seemed to
indicate he felt his lifting restrictions eventually were
not as a result of his heart problems. The undersigned
might note, in looking at the records, that the medical
evidence does not seem to support claimant's contention.
Claimant indicated that sometime in the first part of 1991,
when he was still having problems with his hands and arms,
was unable to grip or pinch, or have control of his hands,
that he had a discussion with the defendant employer as to
attempting to get back to work. The end result was that
claimant resigned and his employment terminated July 11,
1991. (Jt. Ex. 2) There was considerable testimony
surrounding this joint exhibit, as to the fact that it
states thereon that claimant voluntarily retired due to a
heart condition. It appears that, other than the signature
of the claimant, he did not fill this form out, nor did Mr.
Dix, who also signed the form. It appeared possibly, that
Thomas Noll, who witnessed the parties' signature, was the
one who filled it out. It appeared that claimant is
disavowing the fact that he was retiring due to his heart
condition and, pursuant to questions, wanted to lead the
undersigned to believe that this was filled out possibly
after he had signed it in blank. Of course, there is no
evidence to this fact, and if there were any question, Mr.
Noll could have been called as a witness by the claimant.
The document otherwise, speaks for itself, and there would
be no reason for the defendants to call Mr. Noll. Claimant
seemed to indicate that he signed it without reading.
Assuming that is true, which assumption the undersigned is
not making, it is such a simple document with so few words
that it is hard for the undersigned to believe that claimant
didn't know what he was doing. Obviously, when one has
litigation, hindsight is always better than foresight, but
the undersigned believes what was written at the time, in
1991, is the best evidence and the best capturing of the
facts and what was in the claimant's mind. It is obvious at
that time that claimant was not thinking of litigation.
Claimant contended at the time he resigned he was not having
any having any heart problems, but his hands and lungs were
giving him problems. Claimant related the various medicines
he is taking for his asthma and/or heart problem.
Since claimant was manager of the meat department, he
received his full salary from the time of his heart attack
in April 1988 up to March 6, 1989. As indicated earlier,
during part of that time he had returned to light duty and
then full duty as seafood service meat manager. When he
then returned March 7, 1989 he was not the manager of the
seafood meat department.
Claimant could not recall, when testifying, as to the
reason he was off work December 14, 1989 through April 5,
1990.
Claimant acknowledged that prior to April 1989 he did
not see anyone for any lung problems.
Claimant also acknowledged that after his heart attack
he was given a restriction by the doctor not to lift
anything over 15 pounds. He doesn't remember if that
restriction was ever lifted. The undersigned might note
there is nothing in the medical records that would indicate
that that restriction was lifted or should be lifted.
Claimant's breathing, hacking and coughing started after his
heart attack.
Claimant was asked concerning certain jobs that he
thought he could do at Hy-Vee. He was asked concerning the
video department and as a greeter. Claimant seemed to
indicate that Hy-Vee didn't have a greeter before he left.
Mr. Dix, who is the manager of the store, indicated that
they have had a greeter since 1986 at the store at which
claimant last worked.
Claimant commented that he didn't think he could possibly do
that job, as he couldn't lift a child. As to the video
department, he didn't think he could handle it because of
his asthma. These responses seem unbelievable to the
undersigned. It is obvious claimant has no intent to work,
or find work and doesn't want to work. Claimant is on
Social Security and this, likewise, gives him no incentive
to try to work or find work. He was referred to joint
exhibit 3, page 5, in which Delwin E. Quenzer, M.D.
indicated on February 13, 1991 that claimant was able to do
a light duty job if such employment was available. It is
obvious claimant never tried. Claimant was also asked
concerning that joint exhibit 3, page 5, the February 13,
1991 letter of Dr. Quenzer, in which he indicated that the
primary reason for claimant's disability is his cardiac
status at present. Claimant indicated he didn't believe
this.
It would seem from the claimant's testimony that he, in
fact, did not tell the defendant employer that he felt his
asthma was work connected. Mr. Dix, the Hy-Vee manager,
first knew claimant was contending that was when he had
notice of claimant's petition, which was filed February 15,
1994.
Allen Dix testified that he has worked for Hy-Vee for
25 years and has been claimant's supervisor since February
1985 until claimant left his employment May 17, 1990. He
was asked several questions concerning claimant's medical
condition as he understood it, his job at Hy-Vee and the
nature of claimant's job. He basically agreed with
claimant's description of his duties and job. He referred
to joint exhibit 3, page 6, and indicated claimant could not
do his meat cutting job with those restrictions, ten pounds
being the problem, but he indicated claimant would have no
problem stocking luncheon meat, cheeses, etc. He indicated
that other stocking of shelves (things other than the meat
department) could be a problem due to the ten pound limit.
He indicated claimant could work in the video department
which pays about 40 to 50 percent less money than claimant
would make as a meat cutter. Mr. Dix indicated they have
always had a greeter at the new store, the first one being
hired in December 1986. He said claimant would be good for
that job because he gets along well with customers.
Currently, they have an 80 year old doing this job 24 hours
a week. The pay would be similar to what one would make in
the video department. There were considerable questions
concerning an alleged conversation Mr. Dix had with the
claimant and whether it was in 1990 or 1991. Mr. Dix did
not believe he had a conversation in 1991 with claimant,
mainly for the reason that claimant hadn't worked since May
17, 1990. He indicated he did have a conversation with
claimant which he believes was in 1990, before claimant
quit, concerning various jobs up front that claimant could
do.
Mr. Dix acknowledged that claimant filed a civil rights
action against him because of alleged demotion following
claimant's heart attack. He indicated he and claimant did
not have a good communication rapport. The civil rights
action came as a result of claimant not being put in charge
as the manager of the seafood service meat department upon
his return in March 1989. Mr. Dix said that the employer
won the civil rights action. Mr. Dix said that when he had
originally asked claimant to take the seafood service meat
manager job, he felt claimant was a good salesman and worked
well with the customers. He said these same qualities would
be good for claimant's work in the video department or
as a greeter. He said the video or greeter jobs would
comply with claimant's restrictions referred to in joint
exhibit 3, page 6, said restriction pursuant to a February 6,
1991 report. Mr. Dix said that claimant's demotion from
the seafood department had to do with the protection of the
department and not claimant's physical condition.
He said that when claimant retired in July 1991
claimant did not say he was retiring because of his hand,
arm problem or asthma. He emphasized that he never knew of
claimant's asthma as it was connected to any work until he
was notified when the petition was filed, said petition
being filed February 15, 1994.
Mr. Dix acknowledged that he had a discussion with
claimant in July 1991 as to claimant resigning. He said
claimant called him or came in and said he was going to go
on Social Security and was quitting work. He said he had
the paperwork done by their company and that a Tom Noll was
there, as he would be the one looking up claimant's records.
He was referred to joint exhibit 2 and indicated that other
than his signature that was not his handwriting and presumed
it was Tom Noll's. When asked whether the claimant has
worked since July 1991 he said that claimant does cleanup
work at the park at Red Rock Lake. He said he saw claimant
there one time and he was emptying trash. The undersigned
might note that he noticed claimant's demeanor when Mr. Dix
said this.
Joint exhibit 3, page 1 is a June 6, 1991 letter of
Delwin E. Quenzer, M.D., an orthopedic surgeon, who opined
that claimant had a total of 37 percent impairment of the
right upper extremity plus a 9 percent impairment of the
left hand, said impairment determined by his use of the AMA
Guides to the Evaluation of Permanent Impairment, Third
Edition.
Page 2 of said exhibit, which is an April 22, 1991
report of Dr. Reagan, shows that he suspected at that
time that claimant has probably reached maximum
improvement. This impairment by Dr. Douglas S. Reagan
was pursuant to Dr. Quenzer having referred claimant to
his partner. On February 13, 1991, Dr. Quenzer, in his
report (Jt. Ex. 3, p. 5) indicated that he preferred
not to issue a final rating on claimant' permanent
partial impairment at that time, but he also had
indicated that claimant's healing period regarding the
carpal tunnel and cubital tunnel releases has been
concluded. It is these two letters, joint exhibit 3,
pages 2 and 5, that has caused the dispute between the
parties as to the extent of claimant's healing period.
The parties agreed that any period began May 17, 1990.
Claimant contends it extended through April 22, 1991 as
per the page 2 letter and defendants contend that it
extended only through February 13, 1991, as reflected
on page 5 of said exhibit. The undersigned finds that
any healing period was from February 17, 1990 through
April 22, 1991. It is obvious to the undersigned that
on February 13, 1991 Dr. Quenzer was not only reluctant
to issue any permanent impairment, but subsequent
thereto, referred claimant to his partner for another
opinion. In this same February 13, 1991 letter, Dr.
Quenzer indicated that claimant was still in a therapy
program for problems relating to his right forearm.
Taking the letter as a whole and considering the
ultimate letter of Dr. Reagan, the undersigned does not
believe claimant's healing period, in fact, ended on
February 13, but, in fact, claimant reached maximum
improvement on April 22, 1991, which would amount
to 48.714 weeks of healing period instead of 39 weeks.
Joint exhibit 3, page 6 is the patient status
report in which the doctor sets out certain
restrictions, one of which is a ten pound lifting
restriction, that claimant may lift 25 pounds
occasionally.
Joint exhibit 3, page 9 is the status report dated
August 14, 1990, in which Dr. Quenzer diagnoses a
bilateral carpal/cubital tunnel, which he indicated was
work related. He set out in the limitations that
claimant must follow. He further commented that he
hoped that claimant could start at least light duty in
another month. As the evidence and testimony reflects,
claimant never did work after May 17, 1990.
Page 11 of joint exhibit 3 is Dr. Quenzer's letter
in which he opined that claimant's carpal/cubital
tunnel problems are substantially caused or
significantly exacerbated by the nature of claimant's
work. On pages 10 and 12 of said exhibit it is obvious
claimant was having cardiac problems and had a history
of repeated myocardial infarctions. Page 21 of joint
exhibit 3 shows the final diagnosis on claimant's
admission on August 1, 1990 at the Iowa Methodist
Medical Center was a coronary artery disease and
chronic obstructive asthma.
Pages 31 through 35 of joint exhibit 3 are
exhibits concerning claimant's May 17, 1990 left carpal
and cubital tunnel surgery. Joint exhibit 3, pages 26
through 30 are exhibits concerning claimant's July 20,
1990 right carpal tunnel and cubital tunnel release.
Pages 38 through 40 is a report of Dr. Greg A.
Hicklin, a pulmonoligist, dated May 16, 1995. In the
report he notes a different history claimant gave Mayo
Clinic and him concerning the extent of claimant's
smoking history. In summary, the doctor said he did
not feel claimant's work environment caused claimant's
asthma, but that he felt historically, his work
environment caused him to cough and wheeze when exposed
to cold air and fumes. In May 1993, page 41 of joint
exhibit 3, the doctor made a similar conclusion,
opining that claimant's occupation did not cause his
asthma, but again indicated exposure to cold air and
fumes from the cellophane meat wrappings were
associated with the exacerbation of claimant's asthma
and felt it reasonable for claimant to avoid exposure
to these situations that causes exacerbation of his
asthma.
Pages 36 through 37 is the Mayo Clinic report
of February 14, 1991. Dr. Hicklin, in his report, also
showed elevated left ventricular and diastolic pressure
and noted that when claimant was seen in June by a
cardiologist, the cardiologist felt that claimant had a
left ventricular dysfunction. (Jt. Ex. 3, p. 38) Dr.
John Glazier, in June 1992, was highly suspicious that
claimant had left ventricular dysfunction which was the
cause of claimant's shortness of breath. (Jt. Ex. 3,
p. 45)
Page 64 of joint exhibit 3 indicates that claimant
has had a history of anxiety depression in addition to
his other problems. The rest of joint exhibit 3, to
page 81 contains considerable information in 1989 and
1990 concerning claimant's treatment with the doctors
and reports dealing with his lung disease or asthma.
It has notations concerning his cardiology problems,
anxiety, etc. Dr. Jay Yans, of the Mid-Iowa Heart
Institute, on June 19, 1990 issued a report at that
time indicating that claimant had
clinical evidence compatible with systolic as well
diastolic dysfunction of the ventricle.
The rest of joint exhibit 3 involving claimant's
medical treatment and history does not change, add to
or detract from the conclusion that is being rendered
herein. There is no necessity of going into any more
detail concerning it.
The undersigned finds that claimant suffered a
simultaneous bilateral carpal tunnel and cubital tunnel
upper extremity injury on May 17, 1990. Claimant had
his left carpal and cubital tunnel surgery on May 17,
1990 and then less than approximately two months later
had the same surgery on his right. Claimant is arguing
that the same symptoms began showing on claimant's left
in May 1987, and symptoms on the right a substantial
time later. There was no impairment, restrictions or
permanency existing until a substantial time later,
which culminated due to the cumulative injury as far as
claimant's left on May 17, 1990, when he had surgery
and as to the right on July 20, 1990, when he had
surgery. The undersigned does not believe that the
date of injury was when claimant first experienced some
pain, as claimant contends. Claimant's contention, of
course, would cause him to be able to claim, as he is,
that he has had two separate injuries and therefore,
brings in the Second Injury Fund. The undersigned
believes and finds that the two left and right carpal
tunnel and cubital conditions accumulated over a period
of time and that they were simultaneous. This
conclusion is drawn from the fact that the two
surgeries were approximately two months apart. The
undersigned finds that the evidence is clear that
because of the nature of claimant's work and his long
history at this work, that this simultaneous bilateral
upper extremity injury was caused by his work and arose
out of his work.
In light of the above conclusion, the undersigned
finds that the Second Injury Fund is not responsible to
pay claimant any benefits, as the conditions for
involvement of the Second Injury Fund do not exist. We
do not have a first and second injury.
In file no. 1053466, claimant adds another factor,
contending that claimant's asthma, respiratory disease
or breathing problems arose out of and in the course of
claimant's employment and caused claimant to become
totally disabled, or at least substantially disabled.
The undersigned finds that the much greater weight
of medical evidence shows that claimant has had a long
history of medical problems, has had heart problems and
has asthma. There is no medical evidence that causally
connects claimant's asthmatic or lung condition with
his work.
There is no evidence that claimant's heart
condition that is adding to his breathing condition was
caused by his work. The only evidence is that the
change in temperatures and cold to which claimant was
subjected during his employment aggravated his
breathing or asthma condition. It is likewise obvious
that once removed, claimant would not suffer from such
conditions in relation to his work. Claimant has had
considerable problems since he left work May 17, 1990,
thereby, he is not being exposed to any conditions at
work.
Claimant has failed to carry his burden to show
that the claimant's problems that currently exist
concerning his breathing, asthma or lung problem was
caused by his work. Dr. Hicklin opined that he did not
feel that claimant's work environment caused claimant's
asthma. (Jt. Ex. 3, p. 40)
There is testimony and evidence that claimant has a
restriction as to lifting connected
with his carpal tunnel surgeries. There is also
evidence that claimant had restrictions as to lifting
connected with his heart condition. One could conclude
that the reason for claimant quitting his employment
and for sure not seeking any other work or
rehabilitation since May 17, 1990, has as much, if not
more, to do with his heart condition as it has to do
with any other condition claimant has involving his
upper extremities.
Claimant had a massive heart attack
in 1988 and had a balloon procedure later on. The
record is full of references to claimant's heart
history and condition. The undersigned believes that
one could conclude, without hesitation, that claimant's
obtaining of Social Security disability is a result of
his heart, cardiac, pulmonary, breathing and asthmatic
conditions. There is no evidence that that was caused
by claimant's work. Claimant seemed to make a big
point of the fact that he has not been offered a job or
asked to come back to work for the defendant employer.
Claimant was the one who quit and then eventually asked
for retirement. If he were motivated or wanted to
work, he has as much, if not more responsibility to go
seek employment either with the defendant employer or
some other potential employer. The undersigned
therefore, finds that claimant does not have body as a
whole injury as to any asthmatic or lung condition.
Claimant's lawyer indicated that his action for
claimant's lung condition was encompassed within file
no. 1053466. This is further substantiated by
claimant's recasting of his amendment to his petitions
pursuant to a deputy industrial commissioner's ruling.
This file no. encompasses basically the same claims
that are in file no. 949915, except that the allegation
concerning claimant's asthma has been added in addition
thereto in file no. 1053466. The undersigned
therefore, finds that claimant is entitled to no
recovery under file no. 1053466 and that those parts of
said file that deal with claimant's upper extremities
will be disposed of under file no. 949915.
The undersigned finds that claimant has a 37
percent permanent impairment of his right upper
extremity and a 9 percent permanent impairment of his
left hand as found by Dr. Delwin E. Quenzer on joint
exhibit 3, page 1. Converting these to body as a whole
and using the combined charts, the undersigned finds
that as a result of claimant's simultaneous bilateral
carpal and cubital tunnel injuries, he has 26 percent
body as a whole injury, which entitles claimant to 130
weeks of permanent partial disability benefits payable
at a rate of $314.90 per week.
As to the dispute concerning healing period, the
undersigned finds that claimant's healing period is May
17, 1990 through April 22, 1991, as the undersigned
believes that Dr. Quenzer's February 13, 1991 letter
still left doubts in the doctor's mind as to claimant
actually reaching maximum recovery. The record shows
that Dr. Quenzer then referred claimant to his partner,
Dr. Reagan, who then opined that he felt claimant
reached maximum improvement on April 22, 1991. (Jt.
Ex. 3, p. 2) Therefore, the undersigned finds that
claimant is entitled to 48.71 weeks of healing period,
which the undersigned finds arose out of and in the
course of claimant's May 17, 1990 work injury, which
resulted from claimant's simultaneous bilateral carpal
tunnel-cubital tunnel injuries. As indicated earlier,
the Second Injury Fund does not owe any benefits to the
claimant.
CONCLUSIONS OF LAW
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241
N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261
Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of"
refer to the cause or source of the injury. The words "in
the course of" refer to the time, place and circumstances of
the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa
1986); McClure v. Union County, 188 N.W.2d 283 (Iowa
1971).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d
296 (Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v.
Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v.
Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v.
Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
When the disability develops gradually over a period of
time, the "cumulative injury rule" applies. For time
limitation purposes, the compensable injury is held to occur
when because of pain or physical disability, the claimant
can no longer work. McKeever Custom Cabinets v. Smith,
379 N.W.2d 368 (Iowa 1985).
Section 85.64 governs Second Injury Fund liability.
Before liability of the Fund is triggered, three
requirements must be met. First, the employee must have
lost or lost the use of a hand, arm, foot, leg or eye.
Second, the employee must sustain a loss or loss of use of
another specified member or organ through a compensable
injury. Third, permanent disability must exist as to both
the initial injury and the second injury.
The Second Injury Fund Act exists to encourage the
hiring of handicapped persons by making a current employer
responsible only for the amount of disability related to an
injury occurring while that employer employed the
handicapped individual as if the individual had had no
preexisting disability. See Anderson v. Second Injury
Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa
Workers' Compensation-Law and Practice, section 17-1.
The Fund is responsible for the industrial disability
present after the second injury that exceeds the disability
attributable to the first and second injuries. Section
85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d
467 (Iowa 1990); Second Injury Fund v. Neelans, 436
N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal
Co., 274 N.W.2d 300 (Iowa 1970).
Benefits for permanent partial disability of two
members caused by a single accident is a scheduled benefit
under section 85.34(2)(s); the degree of disability must be
computed on a functional basis with a maximum benefit
entitlement of 500 weeks. Simbro v. Delong's Sportswear,
332 N.W.2d 886 (Iowa 1983).
Section 85.34(1) provides that healing period benefits
are payable to an injured worker who has suffered permanent
partial disability until (1) the worker has returned to
work; (2) the worker is medically capable of returning to
substantially similar employment; or (3) the worker has
achieved maximum medical recovery. The healing period can
be considered the period during which there is a reasonable
expectation of improvement of the disabling condition. See
Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa
Ct. App. 1981). Healing period benefits can be interrupted
or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa
1986).
It is further concluded that claimant incurred
simultaneous bilateral upper extremity injury on May 17,
1990, causing claimant to incur a 37 percent permanent
impairment to his left upper extremity and a 9 percent
permanent impairment to his right hand, resulting in
claimant, under 85.34(2)(s), to incur a 26 percent permanent
impairment, resulting in claimant being entitled to 130
weeks of permanent partial disability benefits at the rate
of $314.90 per week.
That claimant is entitled to healing period beginning
May 17, 1990 through April 22, 1991 amounting to 48.714
weeks at the weekly rate of $314.90 per week.
That claimant's asthmatic or lung disease or condition
or any disability resulting therefrom, did not arise out of
and it was not caused by claimant's work. Claimant did not
incur an injury or permanent disability that arose out of
and in the course of his employment on May 1, 1987, November
1, 1989, nor July 20, 1990.
That defendants' affirmative defenses as to file no.
1053466, concerning timely notice under 85.23 and
statute of limitations under 85.26 of the Iowa
Administrative Code are moot in light of the decision
herein.
That Second Injury Fund is not responsible to pay
claimant any benefits, as there was no first and second
injury.
ORDER
THEREFORE IT IS ORDERED:
As to file no. 1053466:
Claimant takes nothing from this proceeding.
As to file no. 949915:
The defendant corporation and insurance carrier
shall pay unto claimant healing period benefits at the
rate of three hundred fourteen and 90/100 dollars
($314.90) for the period of May 17, 1990 through April
22, 1991, encompassing forty-eight point seven one four
(48.714) weeks.
That defendant corporation and insurance carrier
shall pay unto claimant one hundred thirty (130) weeks
of permanent partial disability benefits at the rate of
three hundred fourteen and 90/100 dollars ($314.90)
beginning April 23, 1991.
That defendant corporation and insurance carrier
shall pay the accrued weekly benefits in a lump sum and
shall receive credit against the award for weekly
benefits previously paid. The parties stipulated that
the defendant corporation and insurance carrier paid
claimant 39 weeks of temporary total disability or
healing period and one hundred forty point six (140.6)
weeks of permanent partial disability benefits at two
hundred ninety-six and 21/100 dollars ($209.21) per
week.
That defendant corporation and insurance carrier shall
pay interest on benefits awarded herein as set forth in Iowa
Code section 85.30.
That defendant corporation, defendant insurance carrier
and claimant are each responsible for payment of one-half
(1/2) the costs of these actions, pursuant to rule 343 IAC
4.33.
That defendant corporation and insurance carrier shall
file an activity report upon payment of this award as
required by this agency, pursuant to rule 343 IAC 3.1.
The Second Injury Fund is not responsible for payment
of any benefits to the claimant herein, and is not
responsible for payment of any costs.
Signed and filed this _____ day of June, 1995.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Steven C. Jayne
Attorney at Law
5835 Grand Avenue STE 201
Des Moines, Iowa 50312
E. J. Giovannetti
Attorney at Law
2700 Grand Avenue STE 111
Des Moines, Iowa 50312
Mr. Charles S. Lavorato
Assistant Attorney General
Hoover State Office Bldg
Des Moines, Iowa 50319
5-1100; 5-1108;
5-1808; 5-1802
Filed June 27, 1995
BERNARD J. O'MALLEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
FRED BEBOUT,
Claimant,
vs.
File Nos. 949915/1053466
HY-VEE FOOD STORES, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
EMC INSURANCE COMPANIES,
Insurance Carrier,
and
SECOND INJURY FUND OF IOWA
Defendants.
________________________________________________________________
5-1100; 5-1108; 5-1808; 5-1802
Found claimant incurred a bilateral simultaneous upper
extremity work injury on May 17, 1990 resulting in a 26 percent
impairment to claimant's body as a whole under 85.34(2)(s) in
file no. 949915.
5-1100; 5-1108
Found claimant's asthma or lung problems did not arise out of
and in the course of claimant's employment. Claimant took nothing
as to file no. 1053466.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
BETTIE M. SUDBROCK,
Claimant,
vs.
File No. 949929
DEPARTMENT OF PUBLIC HEALTH,
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.
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration brought by Bettie
M. Sudbrock, claimant, against the Department of Public
Health, employer, and the State of Iowa, insurance carrier,
defendants, for benefits as the result of an injury which
occurred on December 28, 1989. A hearing was held in Des
Moines, Iowa, on October 11, 1993, and the case was fully
submitted at the close of the hearing. Claimant was
represented by Channing Dutton. Defendants were represented
by Greg Knoploh. The record consists of the testimony of
Bettie M. Sudbrock, claimant, Patricia A. Burgett,
co-employee, Rosa E. Ervin, benefits supervisor, Iowa Public
Employees Retirement System, David J. Fries, division
director of planning and administration of the Public Health
Department, William J. Snyder, assistant to the director of
the Department of Personnel, and joint exhibits 1 through
16. The deputy ordered a transcript of the hearing.
ISSUE
The sole issue for determination is the amount of
claimant's entitlement to permanent disability benefits, if
any.
FINDINGS OF FACT
entitlement to permanent disability benefits
It is determined that claimant has sustained a 30
percent industrial disability and is entitled to 150 weeks
of permanent partial disability benefits.
Claimant, born January 10, 1928, was 61 years old at
the time of the injury. She was 63 years old at the time of
her retirement from employer's service. She was 65 years
old at the time of the hearing. Claimant's industrial
disability is reduced because she was nearing the end of her
productive working lifetime at the time of the injury.
Page 2
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 752670 & 805300 (App. Decn. April 28, 1989).
At the same time, claimant credibly testified that it
was her intention to work beyond age 65 before this injury
occurred. Claimant's testimony is credible because she has
established and exceptional life long work ethic. Claimant
started to work at age 16 when she was still a high school
student. She continued to work until she was 20 years of
age, when she was married and quit working outside of her
home in order to stay home to rear seven children. Claimant
returned to the employment market at age 35 when her
youngest children were in high school. After that she
worked continuously until her premature retirement at age 63
on September 11, 1991 (Ex. 4, p. 81).
The medical records of both Delwin E. Quenzer, M.D.,
claimant's operating orthopedic surgeon, and Camilla J.
Frederick, M.D., claimant's other treating physician,
clearly show that claimant actually urged both of these
physicians to return her to work even before the physicians
were ready to do so (Exhibit 1, pages 1-19). This is
further confirmed by the answers to interrogatories
submitted by defendants in which Mona Rocha and Norma
Hildebrand confirmed that claimant had a very good work
attendance record and did not want to miss any work. They
confirmed that she returned to work even before the doctors
had released her to return to work. The answer to
Interrogatory No. 11, further reads as follows, "She said
that Bettie's injuries apparently did not prevent her from
doing her job, as Bettie continued to do her job entirely on
her own and did so until she retired." (Ex. 3, p. 69).
Claimant's State of Iowa, Confidential Performance
Reviews/Evaluations, from May 4, 1984 through October 27,
1990, show that claimant performed competently, meeting all
standards or requirements for her job (Ex. 12, pp. 111-126).
In addition, there are two letters of commendation in
claimant's file dated September 14, 1989 and May 16, 1991
(Ex. 12, pp. 109 & 110).
It is also true, as defendant points out, that claimant
had a number of health problems such as degenerative
arthritis in her knees, (Ex. 4, p. 85) controlled
hypertension, controlled diabetes and obesity (Ex. 1, p.
64), however, none of these conditions had diminished
claimant's motivation or physical ability to perform her job
(Transcript, p. 73). Thus, claimant's testimony that at the
time of this injury, and even subsequent to it, that she
planned to work beyond age 65 is credible, persuasive, and
convincing. Therefore, claimant has demonstrated that she
fully intended to work beyond the sometimes normal
retirement age of 65. Therefore, claimant's industrial
disability should not be substantially reduced for the
reason that she was nearing the sometimes normal retirement
Page 3
age of 65. Swan v. Industrial Engineering Equipment Co., IV
Iowa Industrial Report 353 (1984)
Claimant's industrial disability is not increased
because of a lack of education for the reason that (1) she
graduated from North High School in Des Moines in June of
1945; (2) she received a certificate from the Des Moines
Area Community College for taking a medical technology
course from September to December of 1981; (3) she received
another certificate from the same school for completing a
course in advanced typing from September of 1982 through
December of 1982; and (4) while working for the State of
Iowa she attended numerous classes furnished by employer
(Ex. 4, pp. 81 & 82). Thus, claimant is equipped
educationally to find new employment in the competitive
employment market. She is suitable for retraining if it
were offered or if she chose to do so. Conrad v. Marquette
School, Inc., IV Iowa Industrial Commissioner Report 74, 89
(1984).
It cannot be stated that claimant's industrial
disability is increased because of her physical inability to
perform the job that she was performing at the time of the
injury, because she did return to work in October of 1990
and performed the same job at the same pay, working the same
hours. She was able to perform these duties of an
Accounting Technician II until the time she was forced (1)
either to be laid off or (2) to retire in September of 1991.
Claimant elected early retirement rather than being laid off
with the unknown and unlikely possibility of being recalled
based on the circumstances at that time ( Tran. pp. 57, 58,
66; Ex. 6, p. 103; Ex. 7, p. 104; Ex. 8, p. 104; Ex. 9, p.
106; & Ex. 10, p. 107). David J. Fries, claimant's
supervisor, corroborated that this was a time of uncertainty
and unrest in state government (Tran. pp. 81 & 84).
The fact that claimant could and did perform the
regular duties of her job as an Accounting Technician II
does not mean that she did not sustain either a permanent
physical impairment or a permanent disability or an
industrial disability. Nor is the fact that claimant
continued to receive salary increases after she returned to
work prove that she did not in fact sustain a permanent
impairment, a permanent disability, or an industrial
disability (Ex. 11, p. 108).
The authors of Iowa Workers' Compensation text book
relate, "Another common misconception is that if an employee
is earning more money post-injury than earned before the
injury, there is no industrial disability. However,
economic factors change. Occasionally, someone who has a
rather low paying job requiring substantial physical effort
will find less physically strenuous work after injury which
pays a higher salary. Such a person may still have a loss
of earning capacity though actual earnings are greater. The
operative phrase is loss of earning capacity, not loss of
actual earnings." Lawyer and Higgs, Iowa Workers'
Compensation--Law and Practice, (Second Edition) section
Page 4
13-5, page 131. Likewise, consideration must be given to an
injured employee who works hard to compensate and overcome
an existing permanent impairment and permanent disability in
order to perform well in spite of significant handicaps.
Even though claimant did not complain about her
physical limitations because she feared that she might be
fired, she nevertheless testified that performing her jobs
caused a number of physical problems (Tran. p. 45). Mainly
she had trouble elevating her right arm and gripping things
with her right hand (Tran. p. 46). Claimant testified that
Dr. Quenzer imposed first a 5-pound and later a 10-pound
lifting restriction on her (Tran. p. 47). Claimant
testified that she was able to arrange her work, which
consisted of a variety of duties, in a way that she could
get them all performed (Tran. pp. 34, 46, & 63).
Furthermore, there is medical evidence that claimant
was in fact significantly physically disabled by this injury
which occurred on December 28, 1989, when she slipped on the
ice, fell and suffered a severe tear of the rotator cuff in
her right shoulder. When conservative treatment failed, Dr.
Frederick ordered an MRI and an arthrogram (Ex. 1, pp.
17-19). The MRI performed on April 30, 1990, was suggestive
of a partial disruption of the rotator cuff complex (Ex. 1,
p. 61). The arthrogram performed on May 3, 1990, confirmed
either a complete or near complete tear of the rotator cuff
(Ex. 1, p. 62). On May 31, 1990, Dr. Quenzer diagnosed a
rotator cuff avulsion, right, with severe impingement. He
performed (1) an acromioplasty, (2) a division of the
coracoacromial ligament and (3) a repair of the avulsed
rotator cuff, large tear (Ex. 1, p. 63).
The records of both Dr. Frederick and Dr. Quenzer
verify that claimant never really did fully recover from the
surgery. She experienced continuing tenderness, pain,
limitation of motion and severe weakness (Ex. 1, pp. 2-19).
Eventually, on April 10, 1991, Dr. Quenzer conceded that
claimant had a "poor result from" the "rotator cuff repair"
(Ex. 1, p. 3).
On April 30, 1991, Dr. Quenzer determined that claimant
had sustained a 15 percent permanent impairment to the whole
person (Ex. 1, p. 1). However the full seriousness of the
injury is better illustrated by quoting the basic facts
which led to the conclusion that claimant had a 25 percent
impairment of the right upper extremity which converted to a
15 percent impairment of the body as a whole. There is not
one, but several, limitation and disability factors that
combine to manifest the real seriousness of this injury.
Dr. Quenzer evaluated the right shoulder as follows:
Based upon a loss of active ROM of the right
shoulder, a 10% impairment of the right upper
extremity has occurred. She has a 60% impairment
of suprascapular nerve motor function, X 15%
potential = 9% right upper extremity impairment.
She has a 50% impairment of supraspinatous sensory
function because of continued pain, and 50% X 5% =
Page 5
2.5%. She has a 10% impairment of axillary nerve
motor function X 35% possible = 3.5%. These total
to a 25% impairment of the right upper extremity
(Ex. 1, p. 1).
Thus, the permanent disability in claimant's right
shoulder consists of not just one but several components (1)
range of motion, (2) suprascapular and axillary nerve motor
function, (3) supraspinatous sensory function and (4) pain.
Furthermore, it can be seen that even though claimant did
not make any verbal complaints at work to her superiors or
co-employees that nevertheless, she was working under a
rather severe physical handicap due to the medically
established permanent physical impairment of her right
shoulder.
Even though claimant was able to perform the duties of
an accounting technician II, she was nevertheless disabled
when compared to the condition that existed in her shoulder
prior to this injury. Claimant's ability to perform the job
of accounting technician II, that she was familiar with, and
a job where she could organize and perform her work within
her limited capabilities, would not necessarily translate to
other employments, other jobs within the State of Iowa
system, nor would it necessarily transfer to the competitive
labor market as a whole (Tran. pp. 34, 46, & 63). Hartwig
v. Bishop Implement Company, IV Iowa Industrial Commissioner
Report, 159 (App. Decn. June 24, 1984); Todd v. Department
of General Services, Buildings and Grounds, IV Industrial
Commissioner Report 373 (Iowa 1983). Therefore, the fact
that claimant quietly performed her job pursuant to her own
commendable work ethic, in spite of her pain and physical
limitations, does not equate to the fact that claimant did
not suffer from a permanent impairment, a permanent
disability and substantial industrial disability.
Moreover, industrial disability is not predicated
solely upon physical disability. An increase of industrial
disability may occur without a change of physical condition.
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980);
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980).
On August 9, 1991, claimant received a letter from the
director of the Department of Public Health, which stated
that effective with the close of business on September 12,
1991, that she would be laid off from her position as an
Accounting Technician II unless she elected otherwise. She
was authorized to exercise a bump into the position of
Accounting Clerk I (Ex. 6, p. 103). Claimant discussed this
possibility with Patricia Burgett, a co-employee who
occupied that position at that time. Claimant testified
that Burgett told her what the job entailed, specifically
very heavy lifting, and claimant determined that she was
unable to perform that job.
Burgett testified at the hearing that this job required
her to pick up, lift and carry 40, 50, 60, 70 and 100 pounds
weights. Fries corroborated the testimony of Burgett (Tran.
Page 6
p. 83).
Claimant testified, and credibly so, that she was not
able to perform this job. Claimant then investigated early
retirement and opted to receive early retirement which
allowed her to obtain approximately $1,800 in unused sick
pay, rather than to opt for a layoff with the remote
possibility of recall for the reason that there were rumors
of more layoffs, and no optimistic rumors of recalls at that
time in state government (Tran. p. 66).
Rosa E. Ervin, benefits supervisor of the Iowa Public
Employees Retirement system verified that claimant would
receive a substantial cash payment for her unused sick pay
if she retired but that she would not receive it if she were
laid off (Tran. pp. 19-23).
For these reasons, and for the reason that retirement
provided claimant with a regular income, whereas layoff did
not provide a regular income beyond unemployment
compensation, it cannot be said that claimant's choice, when
faced with this dilemma between two mutually unfavorable
options, was unreasonable.
David J. Fries, division director of Plans and
Administration for the Department of Public Health, who was
claimant's supervisor, testified that claimant was a good
employee and that this layoff had no connection with
claimant's injury (Tran. pp. 75-79). However, it is not a
matter of who is to blame or who might be at fault for the
layoff, industrial disability is based upon the fact that
claimant sustained a work injury and thereafter sustained
both a physical and nonphysical (economic) loss of earning
capacity which resulted in a significant amount of
industrial disability.
It is determined that the physical limitations of the
work injury prevented claimant from bumping the accounting
clerk I and was the primary reason for the fact that
claimant was forced to retire as the most reasonable choice
between retirement or layoff at that time. The fact that
claimant could not perform the accounting clerk I job was
sequelae of the work injury that occurred on December 28,
1989. Oldham v. Scofield and Welch, 222 Iowa 764, 767, 266
N.W. 480, 482 (Iowa 1936). Oldham determined that "where an
accident occurs to an employee in the usual course of his
employment, the employer is liable for all of the
consequences that naturally and proximately flow from the
accident." Lawyer and Higgs, Iowa Workers'
Compensation--Law and Practice (Second Edition) section 4-4,
page 26. Thus, the injury of December 28, 1989, was the
cause of both a physical and nonphysical (economic) loss of
earning capacity. Hall v. Lehigh Portland Cement Co., II-1
Iowa Industrial Commissioner Report 160 (Appeal Decn. 1985).
William J. Snyder, assistant to the director of
personnel, testified that two other accounting technician II
persons who were laid off were recalled a short time later.
However, Snyder agreed that claimant would not have been
expected to know that early recalls were either a
Page 7
possibility or a probability at the time she was forced to
decide whether to retire or be laid off (Tran. pp. 85-90).
Snyder testified, "The layoff notice when it is sent out,
typically there is little knowledge about when or if that
person will be recalled." (Tran. p. 90).
If claimant had been able to continue in the job of
Accounting Technician II position she would still be earning
$868 every two weeks ($434 per week). Actually claimant
would probably be earning much more. These are 1990 figures
(Ex. 1, p. 108). Claimant also lost a certain amount of
employee benefits when she was forced to retire. By
comparison her retirement check is $212 per month. This
severe loss of actual earnings should however be tempered
and balanced by the fact that claimant is receiving
approximately $700 in social security retirement benefits.
Thus, claimant's retirement income is only about one-half of
what she earned as a full-time employee.
However, claimant did not seriously search for any
employment after she was forced to make the decision between
early retirement and layoff with right of recall (Tran. p.
58). Furthermore, even though claimant had planned to work
beyond age 65 it must still be considered that claimant was
approaching a retirement age which is a factor which reduces
industrial disability. Lidgett v. Dubuque Packing Co., I-4
Industrial Commissioner 476 (1985). Even though claimant
had planned to work beyond age 65, the fact that claimant
was age 63, and the fact that claimant appears to have
voluntarily accepted early retirement to avoid layoff does
nevertheless tend to reduce industrial disability. At the
same time, her forced early retirement reduced her future
earnings that she would have earned between September of
1991 and whenever she would have retired, which in turn
reduced her potential, eventual retirement benefits. This
too is a loss of earning capacity and an economic loss due
to this injury.
Claimant testified that her physical condition has
become worse over time. At first she was unable to pick up
a gallon of milk and soon it became difficult to pick up a
cup of coffee (Ex. 4, p. 92). With respect to claimant's
work ethic, she previously drove approximately 50 miles
round trip in order to perform the State of Iowa job and her
other Des Moines jobs, however, she testified that driving a
car with the right hand and arm since the injury had become
increasingly more difficult.
The seriousness of the injury is further illustrated by
the fact that claimant's healing period lasted 22 weeks
which is approximately five months, before it was cut short
by her voluntary early return to work (Tran. p. 4).
Claimant testified there are a number of things that
she can no longer do in performing her household tasks and
her own personal care (Tran. pp. 43, 60-63; Ex. 6, p. 95).
On July 3, 1990, Dr. Quenzer described claimant's
injury as a massive rotator cuff avulsion on the right (Ex.
1, p. 5). On April 10, 1991, he said "the rotator cuff tear
Page 8
was quite large" (Ex. 1, p. 3). Dr. Quenzer also verified
that even though claimant was working full-time ten and
one-half months after the surgery, on April 10, 1991, that
she still had pain with activities of daily living,
tenderness over the scar, limited range of motion, pain, and
found it difficult to staple or remove staples (Ex. 1, p.
3).
Claimant started to work for employer on May 7, 1983
and retired effective September 11, 1991. Thus, she worked
for employer for a period of approximately eight and
one-half years (Ex. 5, p. 71 & 72).
Wherefore, considering (1) that claimant experienced a
witnessed very severe specific traumatic injury to her right
dominant shoulder, (2) the seriousness of the injury which
caused a massive tear of claimant's right rotator cuff, (3)
that claimant sustained a 15 percent permanent impairment to
the body as a whole which is described in its many disabling
components in the body of the decision from which she never
fully recovered completely, (4) the fact that claimant was
forced to leave her employment either through layoff or
retirement because she established she was unable to perform
the duties of the position of accounting clerk I because of
the heavy weights involved, (5) the fact that claimant
suffered a loss of both earning capacity and actual earnings
for the period from September 11, 1991, when she retired
until the time she would have at least been age 65 on
January 10, 1993, a period of over one year, (6) considering
that claimant is foreclosed from a number of jobs in the
competitive employment market because of a serious loss of
function in her right shoulder, (7) based on claimant's age,
(8) based on claimant's education, (9) based on claimant's
work ethic and motivation, and (10) based on all of the
factors used to determine industrial disability, Christensen
v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial
Commissioner Decisions 529 (App. Dec. March 26, 1985);
Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of
Iowa Industrial Commissioner Decisions 654, 658 (App. Dec.
February 28, 1985) and applying agency expertise [Iowa
Administrative Procedure Act 17A.14(5)], it is determined
that claimant has sustained a 30 percent industrial
disability to the body as a whole and is entitled to 150
weeks of permanent partial disability benefits.
CONCLUSIONS OF LAW
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
That the injury of December 28, 1989 to claimant's
right shoulder was the cause of permanent physical
disability. Lindahl v. L.O. Boggs Co., 236 Iowa 296 18
N.W.2d 607 (1945); Bodish v. Fischer, Inc., 257 Iowa 516,
133 N.W.2d 867 (1965).
That the injury of December 28, 1989, was the cause of
claimant being forced to choose between layoff and
retirement because due to the physical injury she was unable
to bump into the accounting clerk I job and she therefor
Page 9
suffered an additional loss of earning capacity traceable to
this injury based upon economic factors. McSpadden v. Big
Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Blacksmith v. All
American, Inc., 290 N.W.2d 348 (Iowa 1980).
That claimant has sustained a 30 percent industrial
disability to the body as a whole and is entitled to 150
weeks of permanent partial disability benefits. Iowa Code
section 85.34(2)(u).
ORDER
THEREFORE, IT IS ORDERED:
That defendants pay to claimant one hundred fifty (150)
weeks of permanent partial disability benefits at the rate
of two hundred fifty-two and 48/100 dollars per week
($252.48) as stipulated to by the parties in the total
amount of thirty-seven thousand eight hundred seventy-two
dollars ($37,872) commencing on May 1, 1991, as stipulated
to by the parties.
That defendants are entitled to a credit for
seventy-five (75) weeks of permanent partial disability
benefits paid to claimant prior to hearing at the rate of
two hundred fifty-two and 48/100 dollars ($252.48) in the
total amount of eighteen thousand nine hundred thirty-six
dollars ($18,936) as stipulated to by the parties.
That these benefits are to be paid in a lump sum.
That interest will accrue pursuant to Iowa Code section
85.30.
That the costs of this action, including the cost of
the attendance of the court reporter at hearing and the
transcript of hearing, are charged to defendants pursuant to
rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40.
That defendants file claim activity reports as
requested by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of October, 1993.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Channing L. Dutton
Attorney at Law
Suite 500
1200 35th Street
West Des Moines, IA 50265
Page 10
Mr. Greg Knoploh
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg.
Des Moines, IA 50319
1803
Filed October 29, 1993
Walter R. McManus
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
BETTIE M. SUDBROCK,
Claimant,
vs.
File No. 949929
DEPARTMENT OF PUBLIC HEALTH,
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.
___________________________________________________________
1803
Claimant was awarded 30 percent industrial disability.
Claimant fell and suffered a large tear of her rotator
cuff which never did heal completely. The surgeon assessed
a 15 percent permanent impairment.
Claimant also suffered an economic loss due to this
injury. When State of Iowa layoffs came in 1991, claimant
was unable to bump the person below her because of her
physical condition due to this injury. Thus, claimant was
forced to choose between layoff and early retirement. She
chose early retirement. This was determined to be a
reasonable decision.
The fact that claimant was forced to choose between
layoff and early retirement because of the residuals of this
injury prohibited her from bumping into the next available
job and this was determined to be an economic loss of
earning capacity. McSpadden. Blacksmith.
Claimant was age 61 at the time of the injury and age
63 at the time of her retirement. It was determined that
claimant's age reduced her industrial disability even though
she had planned to work beyond age 65 but that it should not
reduce it substantially. Claimant proved an extremely
admirable work ethic all of her life until and after this
injury.