BEFORE THE IOWA INDUSTRIAL COMMISSIONER
JERI L. DAHL,
Claimant,
vs. File No. 954639
JOHN MORRELL & CO., A R B I T R A T I O N
Employer, D E C I S I O N
and
HOME INSURANCE COMPANY,
Insurance Carrier,
Defendants.
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STATEMENT OF THE CASE
Claimant, Jeri L. Dahl, has filed a petition
in arbitration and seeks workers' compensation
benefits from John Morrell & Co., defendant
employer, and Home Insurance Company, defendant
insurance carrier, on account of an injury
arising out of and in the course of her
employment on June 6, 1990. The hearing was
held before the undersigned on January 10, 1995
at Sioux City, Iowa. The evidence in this case
consists of the testimony of claimant, Charles
Newton, Sharon Johnson; claimant's exhibit A,
pages 1 through 181, except page 144, claimant's
exhibit B, pages 5, 6, 10-18, 20, 24-27, 29, 30,
40-44, 144, and defendants' exhibits 2, 4, 7-9,
13-15, 18, 19, 22, 26, 31A, 33, 34, 41-45 and
47-62. Claimant and defendants each filed a post
hearing brief on February 21, 1995. The case
was considered fully submitted at the close of
the hearing.
PROCEDURAL MATTERS
On February 21, 1995, claimant filed a
motion to allow additional exhibits into the
record. Defendants filed a resistance on
February 24, 1995. On February 21, 1995,
defendants filed a motion to substitute a
complete copy of exhibit A, page 9. No
resistance was filed by claimant. Rule 343 IAC
4.31 provides: "No evidence shall be taken after
the hearing." Based on the above cited rule,
the motion by claimant to allow additional
exhibits to be entered into the record and the
motion by defendants to substitute a complete
copy of exhibit A, page 9, are denied.
ISSUES
The Parties presented to the following
issues for resolution:
1. Whether claimant's injury resulted in
any permanent disability and, if so, whether
that disability is causally connected to her
work injury of June 6, 1990;
2. Whether claimant is entitled to any
additional healing period benefits or temporary
total disability benefits;
3. Whether claimant is entitled to
permanent partial disability benefits, and if
so, the nature and extent of those benefits and
the appropriate commencement date for benefits;
4. Whether claimant is entitled to payment
of certain medical expenses;
5. Whether claimant's injury was willful
under Iowa Code section 85.16;
6. Whether a portion of claimant's
disability is due to a preexisting condition
that resulted from a previous injury; and,
7. Specific taxation of costs.
FINDINGS OF FACT
The undersigned deputy industrial
commissioner, having reviewed all of the
evidence received, finds the following facts:
Claimant was 42 years old, married and the
mother of six children, four of whom were minors
on the day of the hearing. Claimant was not a
credible witness on her own behalf.
She graduated from high school in 1972 and
went to work for IBP, inc. the same year. She
worked for IBP, inc. until approximately 1984 or
1985. (Transcript, page 14) While working for
IBP, inc. she sustained a work-related injury to
her right hand in September of 1984. Claimant
was specifically asked by defendants, through an
interrogatory, if she had ever sustained a work-
related injury before or made a claim for
workers' compensation before this injury. She
stated under oath that she had not.
(Defendant's exhibit 61, page 3) Claimant's
answer was clearly less than complete, at best,
as is evidenced by her previous workers'
compensation claim with IBP, Inc. Claimant's
previous claim went to hearing in Nebraska and
then was resolved after hearing by payment to
claimant of over $15,000 dollars. It is not
believable that claimant forgot her previous
claim. It was previously determined that
claimant had sustained a 5 percent permanent
partial disability impairment to each hand.
(Def. Ex. 43, p. 3, 4)
Her work for defendant employer required her
to stack boxes after they came out of a machine.
This work required that she use her hands,
wrists, and arms in a repetitive manner. She
also worked wrapping loins which required
repetitive use of her hands and wrists.
On March 19, 1990, claimant suffered a work-
related injury to her shoulder, that is not the
subject of this case, when she was pulling on a
pallet that was stuck. (Def. Ex. 59)
Restrictions that were placed on her left arm
were lifted by May 29, 1990. (Cl. Ex. A, p. 41,
43) On June 6, 1990, claimant reported swelling
and pain in both wrists. (Cl. Ex. A, p. 52)
She was examined by Gerald McGowan, M.D., on
June 12, 1990 as a follow-up to her shoulder
complaint. He noted that claimant had little
bursa or ganglions on her wrist which did not
impress him too much. He recommended no
treatment. (Cl. Ex. A, p. 47)
On July 3, 1990, claimant complained of pain
in both wrists. She had swelling along the
tendon of both wrists on the volar side, which
he did not think was anything. He recommended
no treatment. (Cl. Ex. A, p. 49) On July 3,
1990 Dr. McGowan recommended that for the next
two weeks claimant reduce repetitive wrist
motion and lift no more than 10 pounds
occasionally. (Cl. Ex. A, p. 50, 51) Claimant
asked to be referred to an orthopedic surgeon.
She was first seen by A. Pechacek, M.D., on
July 9, 1990. He suspected ganglion cysts were
the source of her pain and irritation. He
recommended limited use of her wrists and if
that failed he recommended surgical removal of
the swollen tissue, which he thought was
probably a ganglion cyst. (Cl. Ex. A, p. 56)
X-rays of claimant's wrists done on July 9, 1990
were normal. (Def. Ex. 8) Dr. Pechacek took
claimant off work beginning July 9, 1990. (Cl.
Ex. A, p. 59, 60)
Dr. Pechacek performed surgery on claimant's
left wrist on August 1, 1990. Instead of a
ganglion cyst, he found hypertrophic muscle
tissue. The tissue was removed, decompressing
the ulnar nerve. Neither the ulnar nerve nor
the artery appeared to have sustained any
permanent damage. (Cl. Ex. A, p. 63, 64)
Claimant remained off work. (Cl. Ex. A, p. 73-
80)
On October 11, 1990, Dr. Pechacek noted that
her range of motion was normal. She had no
atrophy in her hand. Her thumb and finger
motions were normal. She was encouraged to move
and use her wrist, hand and fingers. She was
still unable to return to work in a packing
house doing manual work activities. A recheck
visit in four to six weeks was planned. (Cl.
Ex. A, p. 81)
Dr. Pechacek never examined or treated
claimant again because she moved to Arlington,
South Dakota in November of 1990. (Trans. p.
66) Arlington is 148 miles away from Sioux
City, where the John Morrell plant is located.
It would take claimant two hours to drive one
way to Sioux City. (Trans. p. 64) It is clear
that claimant never intended to return to work
for defendant employer after she moved to
Arlington, South Dakota. When she was asked
whether she would commute to Sioux City she
indicated that if she had returned to work she
would have been transferred to defendant
employer's Sioux Falls plant. (Trans. p. 82)
Claimant never asked for a transfer to the Sioux
Falls plant.
After claimant moved to South Dakota
defendants authorized treatment by John Ramsay,
M.D. He first evaluated claimant on November
21, 1990 where she exhibited a positive Tinel's
test. (Cl. Ex. A, p. 95) Nerve conduction
studies done on December 3, 1990 were normal for
each median, ulnar and radial nerves. (Def. Ex.
13) On December 10, 1990, claimant informed Dr.
Ramsay that she was pregnant with her sixth
child. Conservative treatment, including
minimal medications and lots of range of motion
and functional activity for the hand, was
prescribed, but not the hard and persistent work
which was required for any type of gainful
employment. (Cl. Ex. A, p. 95) Claimant
remained off work.
Her sixth child was born on April 22, 1991.
Claimant indicated to the GAB representative
that she and her husband were going to move back
to the Sioux City area so an appointment with
John Kuhnlein was scheduled on May 16, 1991 to
evaluate her current status. Claimant did not
show up for the appointment. (Def. Ex. 14)
Another appointment was scheduled for June 6,
1991.
Claimant reported symptoms of numbness in
all five fingers of her left hand with continued
pain at the incision site in her left wrist.
The pain was better with rest and worse with
activity. Her pain was somewhat improved since
the surgery. She told Dr. Kuhnlein that Dr.
Ramsay wanted to perform ulnar nerve
decompression at both elbows. That statement is
not supported by Dr. Ramsay's notes. Nowhere
does he mention that claimant needed ulnar
decompression especially in light of her normal
nerve conduction studies of December 1990. (Cl.
Ex. A, p. 100) When Dr. Kuhnlein asked her
about the scar on her right wrist, claimant
forgot that she had carpal tunnel surgery in
1984. (Cl Ex. A, p. 100) Tinel's, Finkelstein's
and Allen's tests were negative. Phalen's test
produced some numbness in the second through
fifth digits in both hands. Dr. Kuhnlein's
impression was pain of unknown etiology. Her
pain has continued unabated in the approximate
nine to ten months since surgery despite the
fact that she was completely off work. (Cl. Ex.
A, p. 100) Dr. Kuhnlein did not perform tests
or provide any treatment to claimant because she
did not relocate to Sioux City.
When the GAB representative found out in
September of 1991 that claimant planned to
continue living in South Dakota he asked Dr.
Ramsay to again examine and treat claimant if
treatment was necessary. Dr. Ramsay refused
further treatment of claimant, because he
believed claimant had forged his signature on
off work slips in order to obtain group
disability benefits from Enterprise Financial
Group.
Claimant filed for group disability benefits
and submitted forms dated January 3, 1991,
February 2, 1991, March 3, 1991, April 1, 1991,
May 2, 1991 and June 2, 1991 which indicated
that Dr. Ramsay had continued to provide
treatment to claimant on a monthly basis through
May 3, 1991. (Def. Ex. 18, pp. 1, 3, 5, 7, 9,
11; Cl. Ex. A, p. 86, 87, 90, 91, 92, 94)
Enterprise, which had paid group disability
benefits to the claimant for the period July 3,
1990 through May 2, 1991 based on the claim
forms submitted to them by claimant, asked Dr.
Ramsay to review the forms. Caroline Hsing,
claims analyst for Enterprise, notified claimant
by letter on June 10, 1991 that she had
"contacted Dr. Ramsay's office and spoke to Ms.
Eris Lenz who handles all the insurance
paperwork. She requested that we [Enterprise]
fax her all physician's statements completed
from December 1990 through the present for
verification of completion. She then contacted
our office adviseing [sic] that the forms were
not completed by Dr. Ramsay nor anyone in the
office." (Def. Ex. 45) Dr. Ramsay specifically
certified that each of the physician's
statements from January 3, 1991 through June 2,
1991 were not completed by himself or by anyone
authorized by him to complete them. (Def. Ex.
18, p. 2, 4, 6, 8, 10, 12) Contrary to
claimant's assertion, it is clear that Dr.
Ramsay believes that claimant, or someone acting
on her behalf, forged his signature. The
evidence supports his conclusion and the
undersigned also believes that claimant or
someone acting on her behalf forged the off work
slips. On September 25, 1991 Dr. Ramsay wrote
to GAB and stated:
Jeri Dahl was a 37-year-old white female
when I first saw her in November of 1990 after
her move to the Brookings area and she was
evaluated concerning her complaints of pain and
numbness in her left wrist and also with
complaints in her right wrist. Subsequent o
that evaluation the patient provided other
history about her pregnancy and aggressive
therapy was halted until her delivery. My last
contact with her was on December 10, 1990. Over
the first four to six months of 1991 we began to
get form letters from Workmen's Compensation
Insurance about her availability for work and
upon further investigation it was determined
that my signature on these forms authorizing
release from work were forged. At that point in
time I contacted the patient and related to her
that I no longer felt comfortable and confident
in our doctor/patient relationship and I
suggested that she continue her follow up with
another physician. I am still of this opinion
and therefore can not honor your request for
further evaluation and treatment on this
patient. If she needs assistance in
facilitating referral to another physician, I
will be more than happy to help in any way that
I can. (Def. Ex. 19)
When GAB learned that claimant had falsified
work releases her temporary total disability
benefits were terminated effective November 1,
1991. (Def. Ex. 47) GAB refused to recommence
payment of disability benefits unless Dr. Ramsay
would reverse his statement regarding the
forgery of his signature. (Cl. Ex. A, p. 113)
Dr. Ramsay would not reverse his statement.
(Cl. Ex. A, p. 113)
On October 11, 1991, claimant filled out and
sent to the industrial commissioner's office,
what is labeled "Petition To Change Primary
Physicians" (Cl. Ex. A, p. 108) The undersigned
is unclear why claimant did not comply with Iowa
Code section 85.27 and the rules set out at 343
IAC 4.48 et. seq. if she desired alternate
medical care. In any event, claimant's exhibit
A, page 108, does not act to authorize claimant
to secure treatment from unauthorized
physicians, nor is it a proper petition for
alternate medical care.
Claimant was informed that she could seek an
independent medical examination pursuant to Iowa
Code section 85.39, in order to establish a
basis for resumption of her temporary total
disability benefits. (Cl. Ex. A, p. 113, Def.
Ex. 48) Claimant never petitioned for an 85.39
independent medical examination. The medical
administrator at the Brooking Clinic where Dr.
Ramsay practiced was willing to provide a
referral to another physician, if necessary.
(Cl. Ex. A, p. 113)
On September 18, 1991, Amiel N. Redfish, a
physicians assistant, wrote that claimant had
subjective complaints of pain in the hands, but
seemed to have good hand functions. (Cl. Ex. A,
p. 107) He declined to provide treatment. (Cl.
Ex. A, p. 107)
Claimant then visited, R. M. Bommersbach,
D.C., an unauthorized chiropractor on October
10, 1991. Based on his first partial
examination, Dr. Bommersbach reported that
claimant complained of pain in her left shoulder
and wrist as well as her right wrist which he
thought might possibly be caused from repetitive
work at defendant employer. Based on a partial
examination he determined the claimant to be
totally disabled because of wrist and shoulder
disabilities (Cl. Ex. A, p. 109, 110) On
October 10, 1991, he diagnosed claimant with
cervical subluxation, thoracic outlet syndrome
and tenosynovitis based on a partial examination
and absolutely no objective test findings. (Cl.
Ex. A, p. 112) On January 21, 1992, Dr.
Bommersbach wrote, "I'm sure there is some type
of work that this lady can do." He also stated
that he was getting mixed signals from the
claimant concerning her case. (Cl. Ex. A, p.
123)
In December of 1991 Dr. Ramsay referred and
transferred claimant's records to Peter K.
Rodman, M.D. (Cl. Ex. A, p. 114) Dr. Rodman
took claimant off work in December 1991. (Cl.
Ex. A, p. 122) By March 17, 1992, Dr. Rodman,
had determined that her examination was normal
and claimant should phase back into work. All
of the medical workups to that point had been
essentially normal. He also felt that questions
as far time off work in the past would be best
handled by Dr. Ramsay and on March 17, 1992, he
felt the patient could work. (Cl. Ex. A, p.
124) Dr. Rodman refused to offer an opinion as
to whether claimant's alleged disability was
related to her work for defendant employer.
On April 13, 1992, Dr. Bommersbach wrote
that claimant could have a 25 to 30 percent
disability of the whole man, which sounded fair
to him, but he did not give her a disability
evaluation so by his own admission this is an
arbitrary figure. Claimant was told by Dr.
Bommersbach that his opinion was speculative and
arbitrary. (Cl. Ex. A, p. 128) When asked to
rate claimant's impairment, Dr. Bommersbach
wrote to claimant and asked her:
Before we examine you we need to have you
write a long narrative concerning the history
and treatment you have received including the
names and addresses and approximate dates of
other types of treatment rendered to you. This
history should include date of injury (or when
you first began having problems), doctor's names
and addresses that you have seen and what they
have done as far as treatment or examinations.
I need to know the types of symptoms you
initially started having, what types of symptoms
you continue to have and the severity of these
symptoms. I also need to know how this injury
has affected your life, things you used to do
that you can no longer do and a note on how you
are trying to cope with this disorder such as
limiting what you do. I would also like a
percentage or a number amount that you feel that
you are disabled. Does this affect your life
10%, 20%, 50%? I need to know whatever you feel
you are disabled because of this disability.
(emphasis added) (Def. Ex. 26)
Dr. Bommersbach did not review claimant's
medical records before he invited her to write
her own disability rating. There is no evidence
that Dr. Bommersbach used the criteria set out
in the AMA Guides To The Evaluation of Permanent
Impairment as adopted by 343 IAC 2.4 of the
rules. Dr. Bommersbach's opinion regarding the
extent of the claimant's permanent impairment
are pure speculation and will be disregarded.
Dr. Bommersbach never did submit a written
evaluation, he just told claimant, according to
her, as she relayed to the insurance company,
that she had a 15 percent whole man disability.
(Trans. p. 148)
On June 7, 1992, claimant filed for
unemployment insurance admitting that she had
been released to return to work. (Cl. Ex. 62)
On June 9, 1992, claimant was examined by
Ronald O. Wyatt, M.D., an orthopedic surgeon.
She had a very positive Phalen's test on both
the right and left hand and a positive Tinel's
test as well. (Cl. Ex. A, p. 138) Previous
Tinel's tests a year earlier were negative. Dr.
Wyatt referred her for EMG testing. Dr. Wyatt
gave claimant an off work slip on June 9, 1992.
(Cl. Ex. A, p. 139) Only two days prior to this
claimant had filed for unemployment indicating
she was ready, willing and able to work.
EMG testing done on June 26, 1992 was normal
for the median nerve and showed some
rennervation for the left ulnar nerve. The
tester indicated that some of the results could
be from "decreased volitional effort." (Cl. Ex.
A, p. 140, 142) Dr. Wyatt offered the opinion
on June 18, 1992 that claimant could return to
work and on June 30, 1992 authored a return to
work slip indicating he suggested no repetitive
work with her wrists. (Cl. Ex. A, p. 141)
Claimant was released from his care.
On a referral from her attorney claimant was
seen by M. E. Rhoades, M.D., for an examination
on August 24, 1992. Claimant complained of
numbness in both arms and in her left shoulder.
(Cl. Ex. A, p. 173) X-rays of the left shoulder
in both internal and external rotation were
within normal limits. (Def. Ex. 31a) Dr.
Rhoades thought that claimant had subacromial
bursitis and rotator cuff degeneration which
were not related to her complaints of hand and
arm pain and numbness. (Ex. A, p. 174)
Claimant was referred to James W. Wiggs, M.D., a
neurologist, for evaluation. (Cl. Ex. A, p.
174) Yet another set of nerve conduction
studies were normal, revealing only a "very
modest" slowing which the doctor attributed to
the length of claimant's hands. (Cl. Ex. A, p.
148) In Dr. Wiggs' physical and neurological
examination he noted that claimant had Tinel's
signs at the wrong location and that the
claimant was "not trying - stuttering give away"
and that claimant had no difficulty with zippers
and snaps. (Cl. Ex. A, p. 149) Dr. Wiggs
determined that the neurological examination had
been "contaminated by apparently functional
generalization of deficit and exaggeration."
(Cl. Ex. A, p. 147)
Dr. Rhoades wrote to claimant's attorney and
told him that claimant was not a candidate for
any further surgery, nor did she have any
objective evidence of median or ulnar nerve
compression at the wrist or elbow. Based on her
history he recommended she avoid repetitive
motion activities. (Cl. Ex. A, p. 155)
On March 10, 1993, claimant again visited
Dr. Rhoades who determined she had full range of
motion in her shoulders. Complaints of numbness
in her hand did not follow any particular
dermatonal distribution. Previous nerve
conduction studies by Dr. Wiggs on September 4,
1992 did not show any evidence of nerve
compression at the hands or wrist. (Cl. Ex. A,
p. 166)
Claimant was evaluated by Dr. Rhoades again
on October 16, 1993. She had a popping and
catching sensation in her left shoulder, but had
full range of motion. (Cl. Ex. A, p. 175- 176)
An MRI of the left shoulder revealed a small
partial tear at the anterior aspect of the
supraspinatus tendon of the left shoulder and
mild compression of the supraspinatus muscle at
the acromiclavicular joint. He felt the finding
represented degenerative changes and was not a
surgical problem. (Cl. Ex. A, p. 179) Dr.
Rhoades wrote that he was unable to relate her
current symptoms to her employment at John
Morrell, Inc. He felt that there was no
evidence of permanent impairment. He did
suggest that she not be employed in repetitive
motion activity. (Cl. Ex. A, p. 178, 179)
Yet another set of nerve conduction studies
performed on the claimant on December 13, 1993
were normal. There was no evidence of
peripheral neuropathy or localized peripheral
nerve entrapment in either of the claimant's
arms. (Ex. A, p. 33)
Claimant was evaluated by L.T. Donovan,
D.O., on March 16, 1994. Dr. Donovan had a
complete set of the claimant's medical records
through October 30, 1993. (Def. Ex. 34) Dr.
Donovan spent over five hours reviewing her
medical records and dictating the extensive and
comprehensive history set out in defendants'
exhibit 34. His examination of claimant took
one hour and fifteen minutes. (Def. Ex. 34, p.
14) Claimant demonstrated for Dr. Donovan her
ability to work at shoulder level without any
complaints of pain. (Def. Ex. 34, p. 2)
Although he determined claimant had a left
shoulder impingement syndrome, it was not
related to her employment for defendant
employer. Based on the AMA Guides to the
Evaluation of Permanent Impairment, Fourth
Edition, Chapter 3, he determined that claimant
had no permanent impairment. (Def. Ex. 34, p.
13)
Absolutely no restrictions have been placed
on claimant's activities that relate to any
complaint of shoulder or body as a whole
problems. Claimant, in her brief, admits that
her shoulder injury occurred on March 27, 1990,
not on June 6, 1990, which is the subject of
this petition. "A separate date of injury shall
be alleged and a separate original notice and
petition shall be filed on account of each
injury, gradual injury . . . alleged by an
employee." Rule 343 IAC 4.6 The date of injury
alleged in this petition and stipulated to by
defendant is June 6, 1990.
Claimant seeks payment of medical bills set
out in claimant's exhibit B. Most of the
medical bills for which she seeks payment are
for treatment from unauthorized providers. A
number of the bills make it unclear what
treatment was provided to claimant.
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to be determined is whether
claimant's injury has resulted in any permanent
disability, and if so, whether that disability
is causally connected to her work injury of June
6, 1990.
The party who would suffer loss if an issue
were not established has the burden of proving
that issue by a preponderance of the evidence.
Iowa R. App. P. 14(f).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is
a proximate cause of the disability on which the
claim is based. A cause is proximate if it is a
substantial factor in bringing about the result;
it need not be the only cause. A preponderance
of the evidence exists when the causal
connection is probable rather than merely
possible. Blacksmith v. All-American, Inc., 290
N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor
Freight, Inc., 215 N.W.2d 296 (Iowa 1974).
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).
Claimant does not argue in her brief that
any doctor has determined that she has any
permanent impairment as a result of her work
injury of June 6, 1990. Instead, she argues
that she is entitled to temporary total and or
temporary partial disability benefits until she
is able to return to work for defendant
employer. In essence, claimant is arguing that
she is permanently and totally disabled. The
evidence presented does not come close to
establishing that claimant is permanently and
totally disabled.
Claimant has failed to prove by a
preponderance of the evidence that she has
sustained any permanent impairment. The only
medical provider that could arguably be said to
have attributed permanent impairment to claimant
is Dr. Bommersbach. As set out in the findings
of fact his opinions are singularly
unpersuasive. He invited claimant to provide
her own impairment rating based on what she
thought she should have. His opinion, where set
out, is in his own words, speculative. He did
not have an accurate history, nor had he
reviewed all of the medical records. Claimant
points out that workers compensation laws should
be liberally construed. While it is true that
the law should be liberally construed, facts are
not. Claimant has no objective findings to
indicate she has any permanent impairment.
Numerous nerve conduction studies and EMG's are
normal. Claimant's work restrictions are based
solely on her subjective complaints of pain to
medical providers. Because they are unsupported
by objective medical evidence of permanent
impairment, claimant's work restrictions cannot
be used to establish permanent impairment.
Dr. Donovan's evaluation is the most
persuasive. He performed extensive document
review of claimant's medical records. He spent
over an hour with the claimant during the
examination and his report reveals a particular
attention to detail. Dr. Donovan's
determination that claimant has no permanent
impairment is accepted.
As Dr. Donovan pointed out there is no
objective evidence of any impairment of the
claimant's left shoulder or body as a whole.
Claimant's examination with Dr. Donovan is
particularly revealing in that claimant had no
trouble working at shoulder level in front of
him. Based on the totality of the medical
evidence, particularly on Dr. Donovan's report,
claimant has failed to prove her injury resulted
in any permanent impairment, thus the question
of causal connection is moot as is the question
of entitlement to permanent partial disability
benefits.
The next issue to be determined is
claimant's entitlement to temporary total
disability benefits.
Iowa Code section 85.33 provides:
[The] employer shall pay to an employee for
injury producing temporary total disability
weekly compensation benefits . . . until the
employee has returned to work or is medically
capable of returning to employment substantially
similar to the employment in which the employee
was engaged at the time of injury, whichever
occurs first.
2. "Temporary partial disability" or
"temporarily, partially disabled" means the
condition of an employee for whom it is
medically indicted that the employee is not
capable of returning to employment substantially
similar to the employment in which the employee
was engaged at the time of injury, but is able
to perform other work consistent with the
employee's disability.
Temporary total disability does not
necessarily contemplate that all residuals from
an injury be completely healed and returned to
normal. It is only when the evidence shows that
because of the effects of the injury gainful
employment cannot be pursued. McDonald v.
Wilson Foods Corp., Thirty-fourth Biennial Rep.,
Iowa Industrial Comm'r 197, 199 (App. 1979).
Claimant was paid temporary total disability
benefits for the period June 7, 1990 through
November 1, 1991. Claimant's condition has not
changed since she last saw Dr. Pechacek on
October 11, 1990 when he released her to return
to work so long as she did not engage in
repetitive or continuous activities. Defendants
argue that claimant's temporary total disability
benefits should cease on that date. It is clear
that claimant's condition has not changed since
that time. It is also clear that claimant never
intended to return to work for defendant after
she and her family moved 148 miles away in
November of 1990. Claimant's work
restrictions, based as they are on her
subjective complaints alone, do not amount to
disability. Although claimant may never be able
to return to defendant employer, that is due in
large measure to her own choice. The evidence
does not establish that she is unsuited for any
employment.
Claimant has been released to work,
albeit with restrictions, since October 11,
1990. She has made virtually no effort to find
other work, even after she and her family moved
148 miles away. Claimant's actions speak much
more loudly than her words, it is clear that
claimant doesn't want to return to work.
By her own admission no doctor since she saw
Dr. Pechacek has helped
ial Report of the Industrial Commissioner 78
(Review-reopen 1975).
Claimant also seeks to recover medical
expenses incurred in her treatment. Those
expenses are set forth on the medical expense
exhibit which is unnumbered. Those expenses
total $2,522.37. As indicated by the parties at
the commencement of the hearing a general award
of medical expenses is all that is required and
the parties would themselves conduct the actual
computations. It is therefore determined that
the defendants in this case are responsible for
payment of claimant's medical expenses as set
for in the medical exhibit.
With regard to the weekly compensation and
medical expenses defendants are entitled to
credit under section 85.38(2) for all amounts
paid by group plans and for all wages paid in
accordance with rule 343 IAC 8.4.
Claimant also seeks to recover costs in the
amount of $1,417.88. When evaluating the
statement it is determined that the costs which
claimant is entitled to recover are as follows:
Dr. Richard Neiman evaluation $150.00
Division of Industrial
Services filing fee 65.00
Krista Secman, C.S.R, deposition 111.80
Krista Irish, C.S.R., deposition 235.20
Iowa Medical Clinic,
Dr. Brooks witness fee 150.00
TOTAL $712.00
ORDER
IT IS THEREFORE ORDERED that defendants pay
Sherry Pumphrey weekly compensation for
permanent total disability at the stipulated
rate of two hundred forty-six and 82/100 dollars
($246.82) per week payable commencing May 4,
1992. The amount thereof is that past due and
owing shall be paid to claimant in a lump sum
together with interest pursuant to section 85.30
after defendants are given credit pursuant to
section 85.38(2) and rule 343 IAC 8.4.
It is further ordered that defendants pay
claimant's medical expenses as set forth in the
medical expense exhibit pursuant to section
85.27. Defendants are entitled to credit under
section 85.38(2).
It is further ordered that the costs of this
action are assessed against defendants in the
amount of seven hundred twelve dollars ($712).
Defendants shall file claim activity reports as
requested by this agency pursuant to rule 343
IAC 3.1.
Signed and filed this __________ day of May, 1995.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Thomas Wertz
Attorney at Law
4089 21st Ave SW STE 114
Cedar Rapids, Iowa 52404
Mr. Harry Dahl, Jr.
Attorney at Law
974 - 73rd St, STE 16
Des Moines, Iowa 50312
5-1402.40; 5-1801; 5-2500;
Filed May 10, 1995
Teresa K. Hillary
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
JERI L. DAHL,
Claimant,
vs. File No. 954639
JOHN MORRELL & CO., A R B I T R A T I O N
Employer, D E C I S I O N
and
HOME INSURANCE COMPANY,
Insurance Carrier,
Defendants.
-------------------------------------------------------------------
5-1402.40; 5-1801; 5-2500
Claimant failed to prove by a preponderance of the evidence
that her injury resulted in permanent disability. Claimant
awarded only temporary total disability benefits.
5-2909
Filed December 28, 1993
PATRICIA J. LANTZ
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JAMES W. CARSON,
Claimant, File Nos. 954876
1033988
vs.
D E C I S I O N
PHYSICAL DISTRIBUTION/
MIDWEST DRIVERS, O N
Employer, E X P E D I T E D
and H E A R I N G
THE TRAVELERS INSURANCE
COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
5-2909
Defendant ordered to reimburse claimant $750.00 for costs of
an indepemdent medical examination. Fee found to be
reasonable.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JAMES W. CARSON,
Claimant, File Nos. 954876
1033988
vs.
D E C I S I O N
PHYSICAL DISTRIBUTION/
MIDWEST DRIVERS, O N
Employer, E X P E D I T E D
and H E A R I N G
THE TRAVELERS INSURANCE
COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
An expedited hearing was held on December 21, 1993. The
record consists of testimony from the claimant; claimant's
exhibits 1 and 2; and, defendants' exhibits A-H.
FINDINGS OF FACTS
On March 30, 1993, claimant filed two petitions in
arbitration. One petition alleges an injury date of July 6,
1990, with the injury affecting the back, neck and
shoulders. The second petition alleges an injury date of
October 2, 1992, with the injury affecting the back, neck
and shoulders. Defendants deny liability on the alleged
injury of July 6, 1990, but admit liability for the second
injury of October 2, 1992.
On October 15, 1993, claimant filed an original notice and
petition for an independent medical examination (IME) to be
conducted by Martin Rosenfeld, D.O., and underwent said
examination on November 15, 1993. The examination cost
$750.00. Claimant paid Dr. Rosenfeld, and seeks
reimbursement.
While defendants deny that claimant sustained an injury on
July 6, 1990, which arose out of and in the course of his
employment, they admit that he sustained a work-related
injury on October 2, 1992.
Defendants' are willing to pay for an IME, but advance that
Dr. Rosenfeld's fee is unreasonable. Defendants submit IME
fees from several local physicians and a claims adjuster's
opinion pertaining to fees charged in Des Moines. The fees
ranged from $150.00 to $500.00.
Claimant relies on a recent appeal decision to support his
argument that $750.00 is a reasonable fee for the services
Page 2
performed by Dr. Rosenfeld. Wright vs. Firestone, et al,
File number 1023144, (App. Decn. April 29, 1993). In
Wright, the commissioner affirmed a deputy's prior
decision which held that Dr. Rosenfeld's fee of $600.00 for
an independent medical evaluation for an upper extremity was
reasonable. In Wright, the defendants had submitted another
physician's opinion that a reasonable charge would total
$350.00 to $400.00.
ANALYSIS AND CONCLUSIONS OF LAW
Iowa Code section 85.39 provides in pertinent part:
If an evaluation of permanent disability has been made by
a physician retained by the employer and the employee
believes this evaluation to be too low, the employee shall,
upon application to the commissioner and upon delivery of a
copy of the application to the employer and its insurance
carrier, be reimbursed by the employer the reasonable fee
for a subsequent examination by a physician of the
employee's own choice, and reasonably necessary
transportation expenses incurred for the examination. The
physician chosen by the employee has the right to confer
with and obtain from the employer-retained physician
sufficient history of the injury to make a proper
examination.
Section 85.39 permits an employee to be reimbursed for
subsequent examination by a physician of the employee's
choice where an employer-retained physician has previously
evaluated "permanent disability" and the employee believes
that the initial evaluation is too low. The section also
permits reimbursement for reasonably necessary
transportation expenses incurred and for any wage loss
occasioned by the employee's attending the subsequent
examination.
Defendants are responsible only for reasonable fees
associated with claimant's independent medical examination.
Claimant has the burden of proving the reasonableness of the
expenses incurred for the examination. See Schintgen v.
Economy Fire & Casualty Co., File No. 855298 (App. April 26,
1991). Defendants' liability for claimant's injury must be
established before defendants are obligated to reimburse
claimant for independent medical examination. McSpadden v.
Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
It is not necessary for claimant to obtain prior approval of
defendants or that claimant file an application with the
industrial commissioner's office prior to seeing a medical
examiner. Vaughn v. Iowa Power, Inc., File No. 925283
(Arbitration Decision, August 5, 1992). Nor is it necessary
for claimant to apply for reimbursement for an independent
medical examination by a physician who is retained by
claimant prior to the examination or prior to the hearing.
Pirozek v. Swift Independent Packing and Second Injury
Fund of Iowa, File Nos. 753643, 753642, 724893 (Appeal
Decision 1987).
Rule 343 IAC 4.44(10)"d" provides: "The amount charged for
services, supplies and devices provided as part of a course
Page 3
of treatment selected by a treating physician or
practitioner is an expression of the provider's opinion that
the amount charged is reasonable and raises an inference
that the charge made is reasonable."
Payment of medical fees can constitute evidence of their
reasonableness and, in the absence of contrary evidence, is
sufficient to carry claimant's burden of proving that a
medical fee is reasonable. Schneider v. Prairie
Contractors, Inc., Appeal Decision, April 20, 1992
(#869747).
Because claimant has paid the bill and because of the
inference of reasonableness in rule 343 IAC 4.44(10)"d",
supra, claimant has made a prima facie showing that the
fee for Dr. Rosenfeld's independent medical examination.
The defendants have not submitted sufficient evidence to
overcome claimant's prima facie showing. Although several
providers indicated what they would charge, no one indicated
that Dr. Rosenfeld's fee was unreasonable.
As a result, it is found that Dr. Rosenfeld's fee for an
independent medical examination is reasonable.
ORDER
THEREFORE, it is ordered:
That claimant's petition for the independent medical
examination is granted and defendants shall reimburse
claimant seven hundred fifty dollars ($750) for the
reasonable expenses of Dr. Rosenfeld.
That defendants shall pay the costs of this proceeding.
Signed and filed this ____ day of December, 1993
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Robert W Pratt
Attorney at Law
6959 University Avenue
Des Moines Iowa 50311-1540
Mr John E Swanson
Attorney at Law
8th Flr Fleming Building
218 Sixth Avenue
Des Moines Iowa 50309
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
BARRY L. WILLIS, :
: File Nos.
955043
Claimant, : 968111
: 1025734
vs. : 1025735
:
WOODWARD STATE HOSPITAL :
SCHOOL, A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
STARTE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by
claimant, Barry Willis, against his former employer,
Woodward State Hospital School, and its insurance carrier,
the State of Iowa. Claimant has filed four petitions, and
alleges injury dates of July 10, 1990, November 15, 1990,
July 29, 1992 and September 8, 1992. All petitions allege
injuries to his back and legs, and all petitions were filed
on the same date, October 23, 1992.
All cases were heard before the undersigned deputy
industrial commissioner on February 18, 1994 at Des Moines,
Iowa.
The record consists of testimony from the claimant,
Jerry Gunderson (maintenance repair worker for the State of
Iowa), Sandra Streeter (workers' compensation coordinator
for the Woodward State Hospital-School), Charles Schneider
(plant operations manager and claimant's former supervisor);
joint exhibits A-J; and, claimant's exhibits 1-24.
PRELIMINARY MATTERS
A review of the files in this case reveals that first
reports of injury have not been submitted for file number
1025735 and 1025734. The defendants are ordered to file the
first reports as soon as possible.
ISSUES
For file number 955043 and file number 968111, the
parties have submitted the following issue to be resolved:
Page 2
1. Whether claimant is entitled to permanent partial
disability benefits due to injuries he sustained on July 3,
1990 and November 15, 1990.
For file number 1025734 and file number 1025735, the
parties submit the following issues for resolution:
1. Whether claimant sustained injuries on July 29,
1992 and September 8, 1992 which arose out of and in the
course of his employment;
2. Whether claimant is entitled to temporary total,
healing period or permanent partial disability benefits;
3. Whether claimant is entitled to medical benefits
pursuant to Iowa Code section 85.27;
4. Whether defendants are entitled to credits pursuant
to Iowa Code section 85.38(2) for payment of disability
income totalling $15,359.72. According to claimant's
attorney's handwritten note on the hearing report, claimant
contends "if given worker (sic) compensation, when applied
would have also received $50.00 per month LTD. Therefore,
LTD credit be reduced $50.00 for each month received."
FINDINGS OF FACT
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
Direct examination of the claimant was very disjointed,
and failed to expose some relevant and basic information.
As a result, the recitation of the facts of this case have
been glued together to the best of the undersigned's
ability. Additionally, the evidence is duplicative (even
triplicated in many instances), poorly organized (actually
unorganized) and some of the documents are poorly
photocopied and/or illegible.
The direct examination did not solicit claimant's age
or marital status (however, in an effort to at least
ascertain claimant's age, the undersigned reviewed a first
report of injury, filed July 19, 1990, which states that
claimant was 32 years of age; therefore, claimant is
currently probably 35 or 36 years of age). Claimant is a
high school graduate (year unknown) and served in the United
States Air Force for four years. While in the Air Force, he
received training in waste water and water treatment.
Claimant began working as a water disposal plant
operator for the State of Iowa in February of 1985. It is
unknown whether claimant had ever held gainful employment
prior to his employment with the state. It is also unknown
whether claimant has tried to secure other employment since
September 8, 1992, the last day he worked for the state.
In the past, claimant has had on-the-job injuries which
resulted in back problems. Most of the incidents were
memorialized in a daily log book kept by claimant.
Page 3
(Claimant's Exhibit 3)
In June of 1990, claimant was at home building a fence,
felt muscle spasms in his back, and sought medical
treatment. On July 3, 1990, he was at work lifting
chemicals, walked up some stairs, and stated that his back
"went out." He reported the injury to his supervisor and
went home. He was sent to Camilla Frederick, M.D. While
Dr. Frederick's notes are scattered throughout the
claimant's evidence, a report, dated October 18, 1993,
indicates that Dr. Frederick treated claimant from July 12,
1990 through January of 1991 for a lumbar disk syndrome.
She made the following diagnosis and comments regarding
claimant's condition:
[D]isk herniation at L2 L3 level resulting in a
moderate compression of the thecal sac at L2 L3.
Disk bulges at L4 L5 and L5 S1, slightly more
prominent to the left of the mid line.
Significance of which was questionable. He
actually had multiple episodes where he got into
trouble with his low back, both work related and
non work related including 7-3-90 when he was at
work walking up a flight of spiral stair case and
had increasing low back pain, then again in 11-90
when he was just at work, lifted 80 lb bag when he
start having muscle spasm. He also had at least
one non work related aggravation to the low back
when he was at home and went to look over his
engine to see if there were any problems, which
caused him to have muscle spasms in the low back,
that was 12-27-90. He was treated conservatively
by Dr. Carlson because of a loss of reflex, but he
continued to be treated successfully just with
conservative management and was returned back to
work at his full duty for which he had to lift at
least 60 lbs on 1-24-91. At that time I would
have expected him to have been recovered from that
problem, although because of his continued
episodes, did not place him at MMI because I had
no way to predict what would happen in the future
with the low back. It hadn't been stable enough
in the 7-90 and 1-91 to make a prediction about
MMI.
At the final time of my treatment, the
diagnosis was unchanged from that previously
dictated. The healing period had not been
completed. I certainly think the injuries of 7-3
and 11-15-90 aggravated and contributed to his
back condition. To my knowledge, he had not had a
previous MRI, so I do not know if he had any
preexisting conditions. He did report on his
initial visit that he had hurt himself at home
working on fence, but then it got aggravated on
7-3-90 while he was working.
I would certainly not say that the injuries of
7-3-90 and 11-15-90 were the sole cause of low
back problems for Mr. Willis, but that they did
Page 4
contribute to his symptomatology. I would state
that the initial injury was at home and occurred
one month prior to his treatment for the work
related aggravation. At the time of my last
visit, he really had full range of motion and
according to the AMA Guidelines 3rd Edition
revised, I would give him a rating of 7% of the
body as a whole at the time I left him. Again,
remembering that I did not feel he was at MMI, I
cannot predict if he is at MMI now.
(Cl Ex. 11A)
Claimant contends that Dr. Frederick's initial release
to return to work included a lifting restriction of not more
than 25 pounds, but due to the state's requirements that he
be able to lift 50 pounds, claimant returned to Dr.
Frederick and requested a 60 pound lifting restriction.
This is confirmed in the medical documentation. (Cl. Exs. 10
and 11)
On November 15, 1990, claimant was performing his
normal job duties of lifting bags filled with chemicals. He
felt spasms in his back, and had to go home. He was off of
work for several weeks, and returned to Dr. Frederick for
treatment. She eventually referred him to Thomas Carlstrom,
M.D., who advised claimant to continue bed rest, and undergo
physical therapy. Dr. Carlstrom reviewed the MRI scan and
diagnosed a herniated disc at the L2-3 level, and a
congenitally small spinal canal, as well as other small disc
defects at other levels (Cl. Ex. 5) In December of 1990,
Dr. Frederick wrote to the state and advised them of
claimant's condition. While the undersigned believes her
letter to be a bit confusing, apparently Dr. Frederick was
of the opinion that claimant could return to work with a 50
pound lifting restriction. However, she did not believe he
had reached maximum medical improvement. (Cl. Ex. 11)
Claimant returned to work, but was place on probation
due to his lifting restrictions. He was given a five-gallon
bucket and a knife which allowed him to cut open the
chemical bags, fill the bucket and transport the bucket to
the treatment facility. Apparently, this is how claimant
performed the job for almost two years, until his next
alleged injury date, July of 1992. On July 29, 1992,
claimant was again lifting chemicals, and felt pain and
stiffness in his back. He went home, but did not
immediately tell his supervisors that he had hurt himself,
because he was concerned about job security. He was off of
work until August 21, 1992, and visited his family
physician, who referred him to William Boulden, M.D. Dr.
Boulden ordered another MRI, which showed degenerative disc
disease from L2-3 through L5-S1, as well as a herniation at
L2-3, L3-4 and a protrusion at L4-5. (Cl. Ex. 14) Dr.
Boulden recommended surgery and physical therapy. Claimant
attended physical therapy sessions on seven occasions from
September through November of 1992. He was released with
instructions to continue his exercise program aggressively.
In January of 1993, Dr. Boulden restricted claimant's
activities to no standing and walking more than 30 to 45
Page 5
minutes, ability to change position, and no bending,
twisting or lifting. (Cl. Exs. 8, 14 and 19).
Claimant sought treatment from William Durbin from July
through August of 1990 and August of 1992. The notes in
1990 indicate a work injury; the 1992 notes do not. (Cl.
Exs. 6 and 21)
Claimant also sought treatment from John Groelushen,
D.C., during August of 1992 and at various times in 1990.
Again, Dr. Groelushen's notes indicate claimant was
suffering from back pain and spasms, but there is no opinion
that the problems were work-related. (Cl. Exs. 1 and 4)
Apparently, in December of 1992, claimant underwent an
evaluation performed by a doctor (signature is illegible)
for the purpose of accessing social security disability
benefits. While the report indicates claimant has a 20
lifting limitation, and can only climb, balance, stoop,
kneel, crouch or crawl on an occasional basis, there is
nothing in the report to suggest that his condition is
work-related. (Cl. Ex.. 16)
In March of 1993, claimant underwent an evaluation at
the Health and Rehabilitation Center. According to the
history provided by claimant, his back problems started in
August of 1990 while he was at work. While the results of
the test are barely readable, apparently claimant was within
the normal range of motion on most of the tests undertaken.
(Cl. Ex.. 17)
In July of 1993, claimant underwent a functional
capacities evaluation, administered by Michael LaVelle, a
physical therapist with the West Des Moines Sports Medicine
and Physical Therapy Center. Again, while the report
confirms claimant's back condition and limitations, there is
no indication that either stems from work-related injuries.
(Cl. Exs. 9 and 13)
In August of 1993, claimant received an evaluation from
the Iowa State Vocational Rehabilitation Services. The
report indicates claimant was too disabled to continue with
an evaluation, and it was recommended he be awarded social
security disability. Some of the accompanying documents
within this exhibit are illegible and/or poorly photocopied.
(Cl. Ex. 14)
In November of 1993, claimant received yet another
evaluation, this one at the University of Iowa Spine
Diagnostic and Treatment Center. Apparently, claimant was
unwilling to undertake any treatment offered at the
University. (Cl. Ex.. 20)
Claimant has had several incidents while at home which
aggravated his back condition, including leaning over to
look under the hood of a car, and building a fence.
Jerry Gunderson, a maintenance repair worker and
co-worker of claimant's, testified that he wrote a statement
in October of 1992. The statement, which is not notarized,
Page 6
states the following information:
Barry told me he was leaving at (I think) noon.
He said that his back was hurting. He said that
he had hurted [sic] it unloading chlorine bottles
about 3 weeks before. He also said he [was]
working on his truck on the weekend and his hip
pop [sic]. Sept. 8 not working that day.
(Cl. Ex. 23).
Sandra Street testified on behalf of the defendants.
She stated that claimant did not report any injuries which
occurred in 1992. She did state that in August of 1992,
claimant missed time from work because his back "went out"
while working at home.
Charles Schneider also testified on behalf of the
defendants. He was claimant's direct supervisor, and was
aware of claimant's ongoing back problems. He was aware of
the 1990 injuries and the resulting work restrictions, but
offered that claimant did not report the 1992 injuries, and
that claimant did not fill out any accident reports.
Claimant confirmed that he did not fill out any accident
reports, but explained that he believed there would be
retaliation if he did, based on the treatment he received
from the employer due to the 1990 injuries. Whether this is
true is irrelevant; claimant was aware of the procedures
used to report work injuries.
ANALYSIS AND CONCLUSIONS OF LAW
With respect to file number 955043 and file number
968111, the sole issue to be addressed is whether claimant
sustained a permanent injury which would allow him to
recover permanent partial disability benefits.
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).
Page 7
While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, its mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76
N.W.2d 756 (1956). If the claimant had a preexisting
condition or disability that is materially aggravated,
accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962);
Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112
N.W.2d 299 (1961).
This has been an extremely difficult case to analyze.
Given the facts and the extent of the medical treatment
involved, better organization and presentation of the case
was warranted. In fact, it was demanded. Weeding through
the evidence presented, and trying to determine when and
where claimant was treated, and trying desperately to find
opinions that were necessary to prove claimant's case, was
not unlike trying to unscramble an omelet.
Dr. Frederick was the only physician involved in the
case during claimant's treatment for the injuries in 1990.
Her report, dated October 18, 1993, indicates that his work
activities aggravated and contributed to his back condition.
In her report, she also related that claimant initially
injured himself at home while working on a fence. She was
unable to state that the injuries in 1990 were the sole
cause of claimant's low back problems. In fact, she stated
that the initial injury occurred at home. During her final
examination, claimant had full range of motion, but she
assessed his condition as 7 percent impairment to the body
as a whole.
Dr. Frederick's opinion is devoid of any apportionment
which would assess the percentage of impairment to the
initial injury at home, and the aggravations in July and
November of 1990. Her own report indicates claimant initial
problems began after he hurt himself at home. After the
aggravations on the job, claimant was able to return to his
regular job duties, although a lifting restriction was
imposed after the 1990 injury. Likewise, the employer
accommodated claimant's restrictions by providing an
alternative way to complete his assigned tasks.
In reviewing the evidence as a whole, it is determined
that claimant has shown, by a preponderance of the evidence,
that he sustained a permanent injury. As he has sustained
injuries to the body as a whole, an evaluation of his
industrial disability is warranted, but will be deferred
until the other issues in the case are resolved.
With respect to file number 1025735 and file number
1025734, the first issue to address is whether claimant
sustained injuries on July 29, 1992 and September 8, 1992
which arose out of and in the course of his employment.
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
Page 8
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).
After reviewing the record, it is determined that
claimant did not prove by a preponderance that he sustained
work-related injuries in 1992. In addition to the medical
records, which make no mention of any specific incidents,
Mr. Gunderson's statement is enlightening. He stated that
claimant left work because his back was hurting, not that he
had hurt it. In fact, although the statement refers to an
incident with chlorine bottles, the incident supposedly
happened three weeks prior to July 29, 1992. This is
inconsistent with claimant's testimony, and his pleadings.
Likewise, Mr. Gunderson stated that claimant hurt his back
while working on a truck.
As a result, claimant takes nothing for file number
1025735 and file number 1025735.
Claimant's industrial disability due to the 1990
injuries will now be discussed.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
Page 9
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
Claimant is currently in his mid-30s and in the prime
years of his earning potential.
Claimant has some serious back problems, although his
determination to conquer them and gain some type of
employment is very questionable. This is addressed
particularly in the reports from the University of Iowa.
Likewise, claimant has continually stated that the only job
he wants is his job as a waste water treatment plant
operator. This may be unrealistic, particularly in light of
the demands of the job. While the undersigned realizes this
is a difficult concept to accept, claimant may have to
explore other career opportunities.
Claimant appeared to be of at least average
intelligence. Retraining seems like a good option, and it is
unfortunate that no vocational rehabilitation was
successfully undertaken.
Claimant was able to return to his job after the
injuries. The employer accommodated his restrictions. Dr.
Frederick indicated that he had sustained a 7 percent
impairment, although her report intimates that some of the
impairment was due to an injury claimant sustained while he
was working at home.
After considering all of the factors enumerated above,
it is determined that claimant has sustained a 20 percent
industrial disability.
Finally, the parties stipulated that claimant's award
should commence on January 24, 1991 for the 1990 injuries.
However, claimant's workers' compensation rate is different
for the two injury dates in 1990. Given absolutely no
guidance from either party as to what rate should prevail,
the undersigned finds that after the initial injury, the MRI
reports indicated claimant had a herniated disc. It was
also after the initial injury that claimant returned to work
Page 10
with lifting restrictions. The November 1990 injury
appears to be only a minor aggravations which did not worsen
claimant's condition. As a result, the lower rate of
$266.34 shall prevail.
Iowa Code section 85.38 states, in relevant part:
2. Credit for benefits paid under group
plants. In the event the disabled employee shall
receive any benefits, including medical, surgical
or hospital benefits, under any group plan
covering nonoccupational disabilities contributed
to wholly or partially by the employer, which
benefits should not have been paid or payable if
any rights of recovery existed under this chapter,
chapter 85A or chapter 85B, then such amounts so
paid to said employee from any such group plan
shall be credited to or against any compensation
payments, including medical, surgical or hospital,
made or to be made under this chapter, chapter 85A
or chapter 85B. Such amounts so credited shall be
deducted from the payments made under these
chapters. Any nonoccupational plan shall be
reimbursed in the amount so deducted. This
section shall not apply to payments made under any
group plan which would have been payable even
though there was an injury under this chapter or
an occupational disease under chapter 85A or an
occupational hearing loss under chapter 85B. Any
employer receiving such credit shall keep such
employee safe and harmless from any and all claims
or liabilities that may be made against them by
reason of having received such payments only to
the extent of such credit.
Likewise, the undersigned was provided with no
documentation supporting claimant's argument that any credit
against his long-term disability payments should be reduced
by $50.
Additionally, the undersigned was unable to determine
if the disability payments were made pursuant to policies
described in the aforementioned code section.
It appears that credit under Iowa Code section 85.38 is
warranted.
ORDER
THEREFORE, it is ordered for file number 955043 and
file number 968111:
That defendants shall pay claimant one hundred (100)
weeks of permanent partial disability benefits commencing
January 24, 1991 at the rate of two hundred sixty-six and
34/100 dollars ($266.34) per week.
That accrued benefits shall be paid in a lump sum, and
credit shall be given against the award for permanent
partial disability benefits previously paid.
Page 11
That defendants shall pay interest on the award
pursuant to Iowa Code section 85.20.
That defendants shall pay the costs of this action.
That there shall be a credit against the award pursuant
to Iowa Code section 85.38(2).
That defendants shall file a claim activity report as
required by the agency.
FURTHERMORE, it is ordered:
TThat claimant take nothing for file number 1025735 and
file number 1025734.
That each party shall pay the costs of pursuing of
defending these files.
Signed and filed this ____ day of March, 1994.
______________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Michael E Hansen
Attorney at Law
2706 Grand Ave
Des Moines IA 50312
Mr Ronald G Cable
Attorney at Law
414 E Grand Ave
Des Moines IA 50309
Ms. Joanne Moeller
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg
Des Moines IA 50319
5-1803
Filed March 28, 1994
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
BARRY L. WILLIS, :
File Nos.
955043
Claimant, : 968111
: 1025734
vs. : 1025735
:
WOODWARD STATE HOSPITAL :
SCHOOL, A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
STARTE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
5-1803
Claimant awarded 10% industrial disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
BARRY L. WILLIS, :
: File Nos.
955043
Claimant, : 968111
: 1025734
vs. : 1025735
:
WOODWARD STATE HOSPITAL :
SCHOOL, : C O R R E C T E D
:
Employer, : O R D E R
:
and :
:
STARTE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
Upon reconsideration, urged by claimant, the order
concerning file numbers 955043 and 968111 is corrected as
follows:
ORDER
THEREFORE, it is ordered for file number 955043 and
file number 968111:
That defendants shall pay claimant one hundred (100)
weeks of permanent partial disability benefits commencing
January 24, 1991 at the rate of two hundred sixty-six and
34/100 dollars ($266.34) per week.
That accrued benefits shall be paid in a lump sum, and
credit shall be given against the award for permanent
partial disability benefits previously paid.
That defendants shall pay interest on the award
pursuant to Iowa Code section 85.20.
That defendants shall pay the costs of this action.
That defendants shall file a claim activity report as
required by the agency.
FURTHERMORE, it is ordered:
That claimant take nothing for file number 1025735 and
file number 1025734.
That each party shall pay the costs of pursuing of
defending these files.
That portion of the decision which discusses credits under
Iowa Code section 85.38(2) is stricken.
In all other respects, the decision remains the same.
Page 2
Signed and filed this ____ day of April, 1994.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Michael E Hansen
Attorney at Law
2706 Grand Ave
Des Moines IA 50312
Mr Ronald G Cable
Attorney at Law
414 E Grand Ave
Des Moines IA 50309
Ms. Joanne Moeller
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg
Des Moines IA 50319
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
JAMES L MCKERNAN, :
:
Claimant, :
:
vs. :
: File No. 955069
MORNINGSIDE COLLEGE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
This is a proceeding in arbitration brought by James L.
McKernan against his former employer Morningside College
based upon an injury that occurred on March 29, 1990. The
employer admits that McKernan injured his leg on that date,
but denies liability for any other injury, in particular,
the respiratory ailment which McKernan asserts as having
resulted from anesthesia used when performing surgery upon
his leg. The duration of the hearing period is disputed.
The nature and extent of permanent disability is disputed.
Defendants seek credit under section 85.38(2) for group
disability income benefits which have been paid in the
amount of $9,061.86. Defendants also seek credit under
section 85.38(2) for the medical expenses paid by the
workers' compensation carrier in the amount of $7,722.11
(see paragraph nine of the prehearing report). The rate of
compensation was stipulated at hearing to be $216.62 per
week. That rate is correct under the evidence which is in
the record. Defendants have paid 49 3/7 weeks of
compensation at the correct rate prior to hearing.
The case was heard at Sioux City, Iowa, on September
23, 1992. The record consists of testimony from James
McKernan and Alice Joann McKernan. The record also contains
joint exhibits 1 through 37, claimant's exhibits 1, 3, 5, 6,
8, and 14; and defendants' exhibits 1 and 2.
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 L. McKernan is a 56-year-old married man who
injured his left knee on March 29, 1990, while working in a
ditch for his employer, Morningside College. He continued
Page 2
to work through the end of the work day but on March 30,
1990, sought medical care. He was referred to Orthopedic
Surgeon Duane K. Nelson, M.D. A trial of conservative care
was attempted unsuccessfully (exhibit 12, page 1).
Eventually, on April 23, 1990, Dr. Nelson performed
arthroscopic surgery in which he removed a torn portion of
the claimant's lateral meniscus (ex. 12, p. 3).
Approximately three days following the surgery claimant
began developing respiratory complaints and consulted his
family physician Steven F. Gordon, M.D. (ex. 6). Pulmonary
function studies were normal except for one portion of the
test. Claimant was provided with a Ventolin inhaler. Notes
of May 10, 1990, indicated that the Ventolin worked well but
that claimant still had wheezing.
Claimant was referred to a pulmonary specialist, Craig
W. Bainbridge, M.D. Pulmonary function studies were
considered to be normal overall, but the claimant's FEF
capacity was slightly decreased (exs. 18 & 22). A
ventilation profusion lung scan was entirely negative and
showed no change from a scan which had been conducted on
October 20, 1989 (exs. 19 & 20). It should be noted that
the record contains pulmonary function studies in exhibit 22
at page 3 which appear to be dated September 4, 1986. Those
are actually the studies from April 27, 1990. The results
are identical to those shown in exhibit 6 for the studies
conducted on April 27, 1990. It should be noted that with
use of a bronchodilator the FEF capacity improved to nearly
normal (ex. 22, p. 2). Dr. Bainbridge was unable to develop
a clear diagnosis but he suspected that the claimant had
some asthma. Claimant's reported symptoms did not improve
with Prednisone or bronchodilators. On September 27, 1990,
Dr. Bainbridge released the claimant from his care (ex. 24).
Dr. Bainbridge has subsequently reported that claimant is
totally and permanently disabled due to very severe
obstructive airways disease (ex. 25). Dr. Bainbridge does
not at any point attribute the disease to any particular
causative factor.
Claimant was evaluated by Vito A. Angelillio, M.D., on
August 22, 1990. Pulmonary function studies showed no
obstructive dysfunction. Other studies were within normal
limits. An attempted treadmill test was unreliable because
claimant hyperventilated before starting the test and
continued to hyperventilate until the test was discontinued.
A methacholine challenge test was attempted but the results
were deemed unreliable due to claimant giving inconsistent
efforts. The test appeared to be positive for showing an
asthmatic component but the doctor's report indicates that
the positive result could be due to claimant voluntarily
closing his glottis. The fact that the test results did not
improve after application of a bronchodilator is an
indicator that asthma might not be a component. Dr.
Angelillio concluded that the claimant's condition included
a considerable functional component because no form of
recognized medical treatment had been successful, his breath
Page 3
sounds were clear, he had never been observed to be wheezing
by any physician. A psychological examination was
recommended. It is noted that defendants, who had arranged
the examination, have not complied with the recommendation
for a psychological examination (ex. 28).
Claimant was also evaluated by Pulmonologist Louis W.
Burgher, M.D. Dr. Burgher reported that test results were
unreliable due to claimant giving suboptimal effort, but
that they were sufficient to conclude that claimant's degree
of obstruction was not severe. He stated that claimant had
a mild obstruction with restrictions which were due to
claimant's obesity. Chest x-rays showed some pleural
scarring in the left base but were considered to be normal.
Dr. Burgher felt that claimant had mild asthma. He also
expressed the opinion that the surgical procedure to which
claimant attributes his respiratory condition is not related
to the onset of the asthma (exs. 30-32).
James Saulsburg, M.D., examined the records of
claimant's surgery and other associated hospital records and
reported that they show no sign of lung irritation or
damage. He expressed the opinion that anesthesia did not
cause or aggravate any lung problem in James McKernan (ex.
29). The hospital records concerning claimant's surgical
procedure do not show any abnormality or complication other
than that claimant reacted with anxiety to epideral
anesthetic being used and that general endotracheal
anesthetic was then induced (exs. 12, 15 & 16).
Claimant's medical history is remarkable for a
diagnosis of multiple pulmonary emboli in 1975 (ex. 1, pp.
1-3). It is remarkable for a history of chest pain in 1989
(exs. 7-10).
Defendants' exhibit 2 shows that in 1986 claimant was
seen at the Mayo Clinic. He was diagnosed with migraine
equivalent with a strong functional overlay, exogenous
obesity, hyperlipidemia and questionable depression. An
MMPI was conducted. It was interpreted as showing claimant
to have a propensity for, "...Fixed notions as to organic
basis for complaints. These complaints, which probably fit
no organic pattern, are likely to be presented in a
histrionic manner. Lacks insight and is unlikely to accept
a psychological explanation of symptoms....Much functional
pain, fatigue and weakness likely....." (def ex. 2, p. 26).
Claimant's expressed complaints as related at hearing by
himself and his wife are very consistent with the
interpretation of the MMPI test which was conducted in 1986.
James McKernan claims to be severely disabled by a
pulmonary condition. None of the pulmonologists have
objectively identified what that condition that might be.
The opinion from Dr. Bainbridge which finds claimant totally
disabled due to severe obstructive airways disease is
rejected as it is not corroborated by any other physician.
While he may very well have mild asthma, such would not
necessarily have any serious impact upon his employability.
Mild asthma might very well have preexisted his recent knee
Page 4
injury. His job was one which appears to have, for the most
part, permitted him to work at his own pace. It does not
appear to have involved extended periods of very strenuous
exertion. The record does not contain evidence from a
single medical practitioner which attributes any particular
respiratory ailment to the anesthesia which was provided as
part of claimant's knee surgery. There is simply no
evidence whatsoever in the record of this case which find
this claimant to have any significant actual respiratory
disease, condition or impairment. There is absolutely no
evidence which attributes any respiratory problem to his
employment or the surgery which repaired his knee injury.
Claimant's subjective complaints of respiratory problems
have not been corroborated by the medical practitioners. In
fact, all the objective tests have produced normal or near
normal results. It is therefore found that it is extremely
unlikely that claimant has any respiratory impairment, other
than perhaps mild asthma. It is further unlikely that any
respiratory impairment which he might have is in any way,
either directly or as an aggravation, a result of his knee
injury, the surgical procedure or the anesthesia used during
the surgery.
Claimant's knee surgery was performed on April 23,
1990. Dr. Nelson's notes of May 1, 1990, indicate that his
preoperative pain was resolved, but that there was still
quite a bit of swelling. At that time he demonstrated 100
degrees of flexion of his knee. On May 15 the notes
indicate that there was still some pain with twisting
maneuvers but that he was still improving. He demonstrated
130 degrees of flexion of the knee. Notes dated June 12,
1990, indicate that he was gradually getting better. He was
continued on physical therapy and was still off work.
Exhibit 23 shows that on June 21 he demonstrated 125 degrees
of flexion to the physical therapist and that on June 28
full range of flexion was observed. When Dr. Nelson saw
claimant on July 26, 1990, he demonstrated 130 degrees of
flexion and full extension. When seen on September 27,
1990, however, claimant only demonstrated 90 degrees of
flexion. There is no explanation in the record of this case
for why claimant's flexion would have decreased so
significantly (ex. 11). It was on September 27, 1990, that
Dr. Nelson reported that claimant had not improved and that
he expected no further improvement. He stated that the
condition was permanent and could possibly develop
progressive osteoarthritis in the future. He rated
claimant's permanent impairment at 10 percent of the leg for
loss of meniscus function and 21 percent for loss of
flexion. Using the third edition of the AMA Guides, the
combined impairment amounted to 29 percent (ex. 11, p. 3).
In a report dated May 14, 1991, Dr. Nelson noted that
posttraumatic arthritic changes had developed (ex. 11, p.
4).
Claimant's knee was evaluated by Orthopedic Surgeon
Michael J. Morrison, M.D., on December 20, 1990. He found
Page 5
that claimant had some quad muscle weakness and atrophy but
a full range of motion of the knee. He felt that claimant
would not need any work restrictions. Dr. Morrison rated
claimant as having a 5 percent impairment of his knee due to
the partial meniscectomy.
Dr. Nelson based his impairment rating on the AMA
Guides. It is not known what Dr. Morrison relied upon.
The AMA Guides do not provide an impairment rating for a
"knee." The Guides do rate impairment in terms of the lower
extremity, the terminology used by Dr. Nelson. Reference to
those AMA Guides shows that impairment for a partial
meniscectomy can range from zero to 10 percent of the
extremity (table 40). Using 90 degrees of motion does
provide a 21 percent impairment based upon lost motion, but
130 degrees of flexion provides only a 7 percent impairment
rating for lost motion. While claimant's symptoms regarding
his leg are almost certainly effected by a functional
overlay, it is found that the correct measurement of flexion
is 130 degrees. It appears at several places in the record.
The fact of arthritis as noted by Dr. Nelson warrants a
finding of some impairment. When the fact of the partial
meniscectomy, the development of arthritis and the loss of
some motion are all considered, it is determined that
claimant has a 15 percent permanent partial impairment of
his left leg as a result of the March 29, 1990 injury. This
finding is based somewhat upon the AMA Guides, but it is not
based strictly upon them. It considers both impairment
ratings in the record as well as the Guides themselves.
The record does not show any expenses of medical
treatment for the claimant's left leg to be unpaid.
The record shows that UNUM Life Insurance Company of
America has paid claimant $9,061.86 in long-term disability
benefits (ex. 33). The record does not contain a copy of
the policy itself. The record submitted does not show that
the plan covers only nonoccupational disabilities or that
the benefits would not be payable if rights of recovery
existed under the workers' compensation laws.
McKernan was uncooperative during the discovery process
of this case. He failed to execute patient's waivers. He
failed to make complete disclosure in his answers to
interrogatories.
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
Page 6
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).
It is recognized that injuries which result from
medical treatment are proximately caused by the original
injury itself. Humphreus v. State, 334 N.W.2d 757 (Iowa
1983); Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375,
101 N.W.2d 167 (1960); Cross v Hermanson Bros., 235 Iowa
739, 741, 16 N.W.2d 616, 617 (1944).
It is admitted by defendants that the claimant injured
his knee and that he has some disability affecting his left
leg. Their admission is well supported by evidence in the
record.
If a claimant contends he has industrial disability he
has the burden of proving his injury results in an ailment
extending beyond the scheduled loss. Kellogg v. Shute and
Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
Defendants deny any relationship between the knee
injury and any lung condition which afflicts the claimant.
Their denial is well supported by the evidence. The record
in this case fails to show any significant lung condition.
The mild asthma condition does not appear to be disabling.
The record further fails to contain any substantiation for
the claimant's claim that whatever lung condition he might
have was caused or aggravated in any manner by the knee
injury, either directly or indirectly. It is therefore
concluded that the only injury in this case is the injury to
the claimant's left knee and that the only resulting
permanent disability is a 15 percent permanent partial
disability of the left leg.
Claimant's healing period entitlement under section
85.34(1) commences on March 30, 1990, the first day he
missed work on account of the knee injury. It terminates on
September 27, 1990, the date at which Dr. Nelson concluded
that no further improvement would be forthcoming.
Page 7
While hindsight shows that improvement had in fact
ceased prior to September 27, 1990, the legal test concludes
the healing period at the time the physician determines that
further improvement is not expected. The entitlement to
healing period is therefore 26 weeks of benefits.
Under section 85.34(2)(o) claimant is entitled to
recover 15 percent of 220 weeks of permanent partial
disability for his left leg. This computes to 33 weeks.
Claimant's total entitlement to weekly benefits is therefore
59 weeks. As indicated in the prehearing report he was paid
49 3/7 weeks. The balance of 9 4/7 weeks is unpaid and is
subject to interest.
Weekly compensation benefits are due and payable weekly
commencing on the eleventh day after the injury under Iowa
Code section 85.30. Compensation for permanent partial
disability is due and payable commencing at the end of the
healing period under Iowa Code section 85.34(2). If any
type of weekly compensation is not paid at the time it comes
due, it accrues interest pursuant to Iowa Code section
85.30. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986); Farmers
Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa
1979).
The record indicates that defendants have paid all
expenses of the knee injury and a considerable amount in
medical expenses attributable to the lung condition. They
clearly were not liable for those amounts. Credit is
allowed when one form of weekly compensation benefits are
over paid and the over payment is applied to satisfy any
under payment of any other type of weekly compensation
benefits. Over payment of medical expenses under section
85.27 cannot be credited, however, to other medical expenses
or to unpaid weekly benefits. Mysch v. Robert Shirley,
d/b/a Shirley Agriculture Service, Thirty-fourth Biennial
Report of the Industrial Commissioner 234 (1979); Anderson
v. Woodward State Hospital-School, 2-1 State of Iowa
Industrial Commissioner Decisions (App. Dec. 1985);
Comingore v. Shenandoah Artifical Ice, Power, Heat and
Light Co., 208 Iowa 430, 226 N.W. 124 (Iowa 1929). Whether
the medical expenses for the knee were paid by the group
carrier or the compensation is moot as to the claimant as he
is not entitled to a refund. Caylor v. Employers Mutual
Co., 337 N.W.2d 890, 894 (Iowa App. 1983).
The only possible source of a credit in this case would
appear to be the group disability income payments made by
UNUM Life Insurance Company. It is noted that there is no
credit for the amount by which any plan which continues
wages exceeds the amount of the weekly workers' compensation
benefit. Rule 343 IAC 8.4; Beeler v Union Electric Co., III
Iowa Industrial Commissioner Report 22 (App. Dec. 1983).
Code section 85.38(1) states: The compensation herein
provided shall be the measure of liability which the
employer has assumed for injuries or death that may occur to
employees in the employer's employment subject to the
provisions of this chapter, and it shall not be in anywise
reduced by contribution from employees or donations from any
source. (emphasis added). Section 85.38(2) states, "In the
Page 8
event that disabled employee shall receive any
benefits...under any group plan covering nonoccupational
disabilities contributed to wholly or partially by the
employer, which benefits should not have been paid or
payable if any rights of recovery existed under this
chapter..., then such amounts so paid to said employee from
any such group plan shall be credited to or against any
compensation payments,...." It is thus clear that there are
three elements to entitlement to a credit under section
85.38(2), namely: (1) the benefits must be received under a
group plan, (2) contributions to the cost of that plan must
have been made by the employer, and (3) the benefits would
not be payable if a right of recovery existed under the
workers' compensation law. Hebensperger v. Motorola
Communications and Electronics, Inc., II Iowa Industrial
Commissioner Report, 187, 189 (App. Dec. 1981).
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. of App. P. 14(f).
The burden of proof rests upon the employer in order to
show that it is entitled to a claimed credit. The "credit"
defense to the claim is similar to the recognized defenses
of accord and satisfaction or payment. Both of those
defenses place the burden of proof on the defendant.
Electra Ad Sign, Inc. v. Cedar Rapids Truck Center, 316
N.W.2d 876 (Iowa 1982); Glenn v. Keedy, 80 N.W.2d 59, 248
Iowa 216 (1957).
In this case, the employer has failed to prove the
extent, if any, to which benefits under the disability
income plan would not have been payable if it had been known
that the claimant's disability resulted from an injury which
was compensable under chapter 85 of the Code. The
entitlement to a credit was identified as a disputed issue
in paragraph nine of the prehearing report, the document in
which the parties identify the issues in the case. The
issue was fully litigated. It is extremely difficult, if
not impossible, to establish the third element of credit
entitlement without introducing the insurance policy which
controls the disability income plan. Exhibit 35 seems to
indicate that the employer contributed to the cost of the
disability plan, but the record is devoid of any competent
showing that the plan applies only to nonoccupational
disabilities. The claim for credit must, therefore, be
denied.
Defendants seeks imposition of sanctions based upon the
claimant's lack of cooperation and failure to comply with
the rules governing discovery procedures. In the end,
defendants prevailed and obtained the records from the Mayo
Clinic. It is particularly noted that even without the
claimant's responses to interrogatories being complete,
defendants had other reasons for knowing that the Mayo
Clinic had records concerning the claimant. Had they made a
prompt, timely effort to obtain those records, there would
not have been the crisis which arose shortly prior to
Page 9
hearing when the Mayo Clinic refused to accept the form of
waiver which claimant had signed. In any event, imposition
of discovery sanctions is discretionary. Sanctions may be
denied even though grounds for imposition exist. Miller v.
Boner, 37 N.W.2d 523 (Iowa 1983). This is one of those
cases in which sanctions will be denied even though grounds
for imposition exist. There is no showing that the final
outcome of this case has been prejudiced in any manner by
the claimant's conduct. Even if the records from the Mayo
Clinic had not been received and introduced into evidence,
the outcome of the case would be no different than it is.
The claimed lung impairment is not corroborated by objective
medical evidence and there is no evidence whatsoever of any
connection between the knee injury and any lung condition.
order
IT IS THEREFORE ORDERED that defendants pay James L.
McKernan twenty-six (26) weeks of compensation for healing
period at the stipulated rate of two hundred sixteen and
62/100 dollars ($216.62) per week payable commencing March
30, 1990.
It is further ordered that defendants pay James L.
McKernan thirty-three (33) weeks of compensation for
permanent partial disability, representing a fifteen (15)
percent permanent partial disability of his left leg,
payable at the stipulated rate of two hundred sixteen and
62/100 dollars ($216.62) per week commencing September 28,
1990.
It is further ordered that defendants receive credit
for the forty-nine and three-sevenths (49 3/7) weeks of
weekly compensation benefits previously paid. The remaining
unpaid amount is past due and owing and shall be paid to
claimant in a lump sum together with interest pursuant to
section 85.30 computed from the date each unpaid weekly
payment came due until the date of actual payment.
It is further ordered that claimant's claim for any
additional medical benefits is denied.
It is further ordered that defendants' request for a
credit under section 85.38(2) is denied.
It is further ordered that defendants' request for
sanctions based upon claimant's failure to comply with the
rules governing discovery is denied.
It is further ordered that the costs of this action are
assessed against defendants 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 February, 1993.
Page 10
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. I. John Rossi
Attorney at Law
697 18th St
Des Moines, Iowa 50314
Mr. M. James Daley
Attorney at Law
1109 Badgerow Bldg
PO Box 1828
Sioux City, Iowa 51102
Page 1
51108.50 51402.40 51402.30
51803.1 1403.30 1701 1803
1402.40 2906
Filed February 22, 1993
Michael G. Trier
before the iowa industrial commissioner
____________________________________________________________
:
JAMES L MCKERNAN, :
:
Claimant, :
:
vs. :
: File No. 955069
MORNINGSIDE COLLEGE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
51108.50 51402.40 51402.30 51803.1
Claimant failed to prove that he had a disabling lung
condition or that it resulted from his compensable knee
injury or anesthesia used when the surgery for the knee was
performed.
1403.30 1701
Credit under section 85.38(2) held to be an affirmative
defense with the burden of proof being placed on employer.
Where disability income policy was not placed into evidence
it was held that defendants had failed to prove that the
plan covered only nonoccupational disabilities and that
benefits would not have been payable if a right of recovery
existed under the workers' compensation laws.
1803 1402.40
AMA Guides relied upon to fix extent of ppd.
2906
Claimant had failed to make complete responses to discovery
requests. Sanctions were nevertheless denied where employer
prevailed on the merits of the case and the information
which the claimant sought to conceal was nevertheless
eventually discovered and had no bearing on the ultimate
outcome of the case in any event.