BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
RAYMOND LANGSTRAAT,
Claimant,
vs.
File No. 957007
CLOW CORPORATION,
A P P E A L
Employer,
D E C I S I O N
and
GAB,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The Arbitration Decision filed
February 26, 1992 and the Remand Decision filed October 27, 1992
are affirmed and are adopted as the final agency action in this
case.
Defendants shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of September, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Harold B. Heslinga
Attorney at Law
118 North Market St.
Oskaloosa, Iowa 52577
Mr. E. J. Kelly
Attorney at Law
2700 Grand Ave., Ste 111
Des Moines, Iowa 50312
5-1803; 3701; 4000.2
Filed September 24, 1993
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RAYMOND LANGSTRAAT,
Claimant,
vs.
File No. 957007
CLOW CORPORATION,
A P P E A L
Employer,
D E C I S I O N
and
GAB,
Insurance Carrier,
Defendants.
____________________________________________________________
5-1803; 4000.2
Claimant awarded 30 percent industrial disability and 15
weeks of penalty benefits. Although extent of permanency
could be reasonably disputed, the existence of some loss of
earning capacity could not.
3701
Defendants' characterization of surveillance evidence was
shown impossible by time-stamping on the photos in evidence.
Evidence was criticized in detail.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
RAYMOND LANGSTRAAT, :
:
Claimant, :
:
vs. : File No. 957007
:
CLOW CORPORATION, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
GAB, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
statement of the case
Claimant Raymond Langstraat seeks benefits under the
Iowa Workers' Compensation Act upon his petition in
arbitration against employer Clow Corporation and GAB
Business Services, Inc. Mr. Langstraat sustained a back
injury arising out of his employment on July 17, 1990, and
alleges resultant temporary and permanent disability.
This cause came on for hearing in Ottumwa, Iowa, on
December 19, 1991. Claimant, Denise Spurgeon, Mary
Langstraat and Victor Laughlin testified at hearing. The
record also contains joint exhibits 1 through 5. Several
pages of electrocardiogram tracings were accidently inverted
when they were placed in a ring binder holding exhibits.
This did not affect the result here, since any possible
relevance of those and many other pages of evidence remains
a mystery.
issues
The parties have stipulated that claimant sustained an
injury arising out of and in the course of his employment on
July 17, 1990, to the rate of compensation ($284.96 per
week), that medical benefits are not in dispute and that
certain benefits have been voluntarily paid.
Page 2
Issues presented for resolution include:
1. Whether there exists a causal relationship between
the injury and temporary and/or permanent disability;
2. The extent of each; and,
3. Whether claimant is entitled to penalty benefits
under Iowa Code section 86.13.
findings of fact
The undersigned deputy industrial commissioner finds:
Raymond Langstraat, 47 years of age at hearing, has
lived his entire life in the state of Iowa. He is a 1962
high school graduate with no further education. His life
has been largely devoted to hard physical labor. Mr.
Langstraat has worked as a farmer and farm hand, a livestock
hauler, and as a concrete and road worker. Beginning in
February 1988, he commenced employment with Clow
Corporation, a manufacturer of heavy water valves. Claimant
worked as a bench grinder, a job requiring the use of hand
tools weighing up to perhaps 15 pounds to grind excess
materials and castings from water valves weighing up to 500
pounds.
Prior to beginning work with Clow Corporation, claimant
had no history of chronic back complaints. However, he
testified to having a "vertebra slip" at age 18 for which he
saw a doctor in Ottumwa 3-5 times. No surgery was
performed, but he wore a corset while working as a farm hand
that summer. Later, claimant became a partner in the farm
with his father and used his back constantly without
problems for many years. Although medical records,
especially including Mahaska County Hospital, are to some
extent difficult to read, this deputy has not found any
record of lumbar complaints. If they exist, they are well
camouflaged among many pages of irrelevant evidence. He
underwent a preemployment physical at the behest of Clow
Corporation on February 12, 1988. This included x-rays of
the lumbar spine, read as negative.
On July 16, 1990, claimant developed a twinge in his
back while manipulating a 275-pound water valve on his
workbench. Lumbar pain developed progressively during the
rest of his shift to the extent that, after showering at
work, he proved unable to bend down to pick up clothes.
After claimant returned home, his wife arranged an
immediate visit with Terry Wolfswinkel, D.C. Claimant was
seen immediately. Chart notes reflect complaints of back
pain radiating down the right leg to the ankle and
tenderness at L5. According to claimant, Dr. Wolfswinkel
refused to employ chiropractic manipulation because "this
isn't good."
Page 3
Claimant was next seen at the Mahaska County Hospital
at 2:14 a.m. on the morning of July 17. Chart notes of
difficult legibility reflect a history of developing
discomfort while twisting at work increasing in the lower
back without relief after use of ice at home. Complaints
were of right lower back pain radiating down the right leg
with tingling foot. Claimant stated his leg had given out
on him that night.
On July 23, still with symptoms, claimant was seen by
another chiropractor, Thomas H. Stanzel, D.C. Dr. Stanzel
was given a similar history as to development of symptoms.
Claimant was treated on six occasions from July 23 to July
30, but did not respond, following which he was referred for
magnetic resonance imaging, then to an orthopaedic surgeon,
William R. Boulden, M.D.
Dr. Stanzel examined claimant again on November 7,
1991. Claimant reported that two days earlier, "his low
back pain became so severe while getting up out of a chair
that it made him pass out from 3:30 p.m. until 11:30 p.m."
Examination revealed marked nodularity and fibrosis
accompanied by pain especially at L5-S1. Range of motion of
the lumbar spine was mildly restricted. Findings were
similar and consistent to those of July 23, 1990, except
slightly less back pain and improved lumbar range of motion
were reported. Diagnosis was of chronic lumbo-sacral
myofascial pain syndrome complicated by dysfunctional spinal
mechanics along with pain and numbness into the legs with
mild central disc herniation. Dr. Stanzel assigned a ten
percent body as a whole impairment rating. However, no
restrictions were suggested.
Magnetic resonance imaging studies were done by J. J.
Gleich, M.D., on August 1, 1990. Impression was of mild
degenerative disc disease not unusual for claimant's age,
but a small central herniation at L3-4. Dr. Gleich also
found spondylolysis (deterioration) with spondylolisthesis
(displacement) at L5-S1.
Claimant was first seen by Dr. Boulden on August 15,
1990. Complaints of buttock and leg pain on the right side
were worse than lumbar complaints. Dr. Boulden was given a
history similar to claimant's testimony. Dr. Boulden
reviewed x-rays showing claimant to have three levels of
degenerative disc disease and spondylolysis at L5 causing a
grade I spondylolisthesis along with significant foraminal
stenosis. Impression was of aggravation of underlying
spinal stenosis (narrowing) secondary to the
spondylolisthesis at L5-S1. Conservative treatment was
recommended, including epidural steroid injections, although
these were refused. Dr. Boulden did not find claimant
suitable to return to work at that time.
Chart notes of August 30 were essentially unchanged.
On September 13, Dr. Boulden wrote that standing and walking
could be expected to be a problem and claimant should stand
Page 4
or walk no more than 30-45 minutes before alternating
position. On September 18, Dr. Boulden suggested starting
restrictions including a 25-pound weight limit, only four
hours of work a day with alternating sitting, standing and
walking with a maximum of 30 minutes at each activity and
made an unclear reference to bending and twisting of the
back; whether claimant would progress from that point was
unknown.
On October 2, claimant was seen again. He had just
begun working six hours per day and Dr. Boulden suggested
that when he reached eight hours, he should maintain that
level for approximately a month before progressing to the
ten-hour shift normally worked on light duty. "I think his
duty needs to be permanent light duty. I don't see any way
he will get back to doing heavy work in the future. This
includes if surgery is ever considered."
Another incident occurred on or about October 20, 1990.
While sitting at home watching TV that night, claimant's
back "went out" on him when he tried to get up. He needed
assistance to get off the couch and found it hard to walk.
The next day, he called Denise Spurgeon, safety coordinator.
According to Ms. Spurgeon, claimant made reference to having
washed windows and cleaned house that day, although claimant
in his testimony minimized the amount of work he had
actually been doing. On October 30, he sought treatment at
the Family Medical Center where chart notes of that date
indicate he had "reinjured" his back. The treating
physician recommended he again be off work. Claimant did
not return to work this time until February 25, 1991.
On October 26, 1990, an unsigned note in the personnel
file indicates claimant had called to request a leave of
absence, stating that the pain was "different than before."
Dr. Boulden was next seen on November 13. His notes
appear to show that little had changed. On January 7, 1991,
Dr. Boulden wrote that, in his opinion, claimant had "at
best" aggravated a preexisting degenerative disc disease at
the back. The meaning of "at best" is ambiguous. He also
believed that claimant could "more than likely continue
light duty within the general restrictions" he had
previously outlined.
On February 20, 1991, claimant was seen by Dr. Boulden
for the last time. He recommended that symptoms could be
kept under better control if claimant remained within his
restrictions of no bending or twisting with the back and
alternating sitting every 30-45 minutes. Since the doctor
would "still stand by the restrictions previously sent," it
appears that the 25-pound weight restriction was to remain
in effect.
On November 18, 1991, Dr. Boulden wrote again relative
causation. Based on a history of having a vertebra slip in
his back years ago, Dr. Boulden suggested this needed to be
Page 5
investigated further to see if there were chronic complaints
since then. If there was a chronic history of back
complaints, Dr. Boulden would feel that claimant had only
aggravated his back once again; if, however, there had been
a significant period of time since this problem during which
he had been able to perform his customary work, the majority
of disability would be placed on the work injury at issue.
Claimant is currently working again for Clow
Corporation, although at a light-duty job as lead locker
room attendant. Defendant is to be commended for providing
continued employment within medical restrictions. However,
he has suffered a reduction in wages from $9.00 per hour
with irregular but significant overtime and incentive pay to
$6.73 per hour. He currently complains of variable daily
pain, generally less severe than at the time of the work
injury. This back pain sometimes radiates down the leg.
Defendants have directly attacked claimant's
credibility on the basis of surveillance conducted by Victor
Laughlin, a private investigator. Laughlin attempted
surveillance on eight or nine occasions, sometimes
unsuccessfully, between December 28, 1990, and July 31,
1991. Testimony and photographs relative the latter date
are particularly significant. Defendants maintain in their
brief that claimant was photographed and seen working
extensively with a rototilling machine, attempting to
vigorously pull-start the machine for at least 15 or 20
minutes before acquiring a second machine and spending
approximately the same length of time attempting to start
it, following which he was seen rototilling a garden for at
least 10-20 minutes. This is generally consistent with this
deputy's understanding of Laughlin's testimony, except that
he understood Laughlin to testify that claimant rototilled
for only approximately five minutes.
Defendants strenuously and repeatedly insist that
Laughlin's testimony is uncontroverted. On the contrary
though, it is directly controverted by the associated
time-stamped photographs. To avoid reaching very unpleasant
conclusions indeed, it must be assumed that this deputy and
defense counsel both misunderstood Laughlin's testimony.
At 19:03 (hours), claimant is pictured relaxing and
drinking a beverage. At 19:15, he is seen entering a shed.
The next photo, at 19:29, shows claimant again at the door
to the shed, apparently standing there or leaving.
Beginning at 19:30, claimant is seen in a different location
attempting to pull-start a Rototiller. This continues until
19:31. At 19:33, he is seen walking to another building and
apparently checking a mailbox. The next photograph shows
him carrying a pail or fuel container towards the original
shed at 19:52. At 19:54, he is walking across a road. At
19:55, he appears at the front or side door of a house. At
Page 6
19:56, he is seen pushing a Rototiller away from that house.
At 19:57, he is seen fueling the Rototiller. From 19:59
until 20:02, he is seen attempting to pull-start the
machine. At 20:05, he is seen pushing the Rototiller up to
a road. At 20:08, he is seen descending an incline next to
the road, apparently while tilling. At 20:09, he is seen
ascending the same incline and then adjusting the machine.
At 20:10, he is seen pushing the Rototiller in multiple
photographs. It is unclear whether he is actually tilling
at that time, although it is noted that the tines are in
focus and do not appear to be in motion. Because the
surveillance photographs were taken with a telephoto lens,
which normally entails a relatively large F-stop (narrower
aperture), it is probable that a relatively slow shutter
speed was employed; thus, the tines would likely be blurred
if in motion. At 20:12, claimant is pictured carrying a
beverage can and another item, but is not thereafter seen in
association with either Rototiller in photographs of 20:19
and 20:20.
Defendants would have us believe that claimant spent 40
minutes attempting to vigorously pull-start two Rototillers
and 10-20 minutes rototilling. From the photographic
evidence, this is impossible. Claimant is pictured
attempting to start Rototillers only from 19:30 to 19:31 and
again from 19:59 to 20:02. There is a time gap from 19:15
to 19:29 when claimant was presumably in the shed, although
no photographs are offered. In order to avoid the
unpleasant conclusions mentioned earlier, it will be assumed
that claimant spent some of that time attempting to start
the first Rototiller (even though all photos showing
attempts to start the machine are in a different location).
Thus, this process occupied 16 minutes at maximum. Attempts
to start the second Rototiller are shown only from 19:59 to
20:02. Claimant is seen actually rototilling at most from
20:08 to 20:11.
Other surveillance photographs show claimant carrying a
small child on his hip and carrying pop bottles and sacks of
groceries. Nothing pictured appears to exceed the 25-pound
weight restriction imposed by Dr. Boulden.
This observer emphatically does not find the
surveillance evidence to be such a devastating blow to
claimant's case as defendants maintain. Nonetheless, it can
be fairly inferred that on at least some days claimant is
able to engage in limited vigorous activity for a few
minutes at a time attempting to pull-start a Rototiller.
This is not particularly significant, given his testimony
that his pain level varies from day to day. The medical
restrictions imposed by Dr. Boulden are significant, but do
not suggest that Mr. Langstraat is totally disabled or that
he should spend the rest of his life bedridden.
Page 7
Denise Spurgeon suggests that claimant's gait and
general stiffness were more severe at hearing than is the
case on a day-to-day basis at work. This may be so, but it
is not inconsistent with claimant simply having a bad day at
hearing. Still, it is not unreasonable to suppose that
claimant took few steps to minimize his apparent discomfort
at trial.
conclusions of law
The parties stipulate that claimant sustained an injury
arising out of and in the course of employment, but dispute
causal relationship to either temporary or permanent
disability.
The claimant has the burden of proving by a
preponderance of the evidence that the injury of July 17,
1990, is causally related to the disability on which he now
bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18
N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261
Iowa 352, 154 N.W.2d 128 (1967).
While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, the mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900,
908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a
preexisting condition or disability that is aggravated,
accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815
(1962).
Temporary disability shall be first discussed.
Claimant seeks temporary disability benefits only for the
time he was off work following the incident at home on
October 20, 1990. No medical opinion appears of record
Page 8
causally relating this incident to the original work injury.
Although claimant had worked a half shift the day before, he
also was engaged in activity at home on October 20 and he
further reported that the pain was somewhat different in
location. It is held that claimant has failed to meet his
burden of proof in establishing entitlement to additional
healing period or temporary total disability.
Medical opinion shows without contradiction that the
aggravation of claimant's underlying condition, previously
asymptomatic or at least nondisabling, is causally related
to the work incident of July 17, 1990. According to Dr.
Boulden, resulting disability should be considered causally
related if claimant has not shown a history of chronic back
complaints. The extensive medical history placed into
evidence shows no such chronic complaints. Dr. Stanzel also
relates the impairment to the work injury. No contrary
medical opinion appears of record. Claimant has clearly met
his burden of proof in establishing a causal nexus between
the work injury and his current disability. The incidents
of October 20, 1990, and November 5, 1991, have not been
shown causative of additional permanent impairment. Dr.
Boulden's suggested limitations precede both incidents.
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
Page 9
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State
of Iowa Industrial Commissioner Decisions 529 (App. March
26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3
State of Iowa Industrial Commissioner Decisions 654 (App.
February 28, 1985).
Medical restrictions imposed by Dr. Boulden include a
25-pound weight restriction, restrictions against bending
and twisting with the back and require alternating sitting
and standing every 30-45 minutes. These restrictions in all
likelihood foreclose possible employment as a farmer,
livestock hauler or concrete and road worker. Thus,
employment with Clow Corporation is the only work claimant
has ever done which is not now barred by medical
restrictions, and even that is light-duty work tailored to
accommodate those restrictions. It cannot be assumed that
another employer would be so accommodating. The industrial
disability awarded in this decision would be very much
greater but for defendant's commendable efforts to keep Mr.
Langstraat working. Nonetheless, he has suffered both a
substantial decrease in actual earnings and an even more
substantial diminution of earning capacity. In essence, it
is loss of earning capacity that is measured in assessing
industrial disability. Second Injury Fund v. Hodgins, 461
N.W.2d 454 (Iowa 1990). Claimant is 47 years of age and
should be in the prime of his earning years. Although he
has a high school education, he has no experience in white
collar professions. His actual loss of earnings is in
excess of 25 percent, not counting substantial overtime and
incentive pay.
Considering then these matters in particular and the
record otherwise in general, it is held that claimant has
Page 10
sustained a permanent industrial disability equivalent to 30
percent of the body as a whole, or 150 weeks. As claimant's
recovery was complicated by the home incident on October 20,
1990, the parties' stipulation shall be accepted: the
commencement date for permanent partial disability is
February 25, 1991.
Claimant also seeks penalty benefits under Iowa Code
section 86.13, which provides:
If a delay in commencement or termination of
benefits occurs without reasonable or probable
cause or excuse, the industrial commissioner shall
award benefits in addition to those benefits
payable under this chapter, or chapter 85, 85A, or
85B, up to fifty percent of the amount of benefits
that were unreasonably delayed or denied.
Defendants have paid no permanent disability benefits
on a voluntary basis. That claimant sustained an injury
arising out of and in the course of employment is admitted.
The medical evidence establishes without contradiction that
the injury caused permanent impairment and resulted in
permanent medical restrictions. The suggestion that the
restrictions (none) proposed by Denise Spurgeon should be
preferred over those imposed by Dr. Boulden is emphatically
rejected. Dr. Boulden is a qualified physician; Spurgeon is
not. The standard in assessment of penalty benefits is
whether the claim and defense are fairly debatable. In this
case, the question of whether claimant sustained some
permanent industrial disability resulting from the admitted
work injury is not fairly debatable, although the extent is.
Nonetheless, defendants' failure to pay permanency benefits
is not as egregious as in some cases seen by this agency. A
full 50 percent penalty shall not be imposed. In the
discretion of the agency, a penalty of 15 weeks is assessed.
order
THEREFORE, IT IS ORDERED:
Defendants shall pay unto claimant one hundred fifty
(150) weeks of permanent partial disability benefits at the
stipulated rate of two hundred eighty-four and 96/100
dollars ($284.96) per week commencing February 25, 1991.
All accrued weekly benefits shall be paid in a lump sum
together with statutory interest pursuant to Iowa Code
section 85.30.
Defendants shall pay unto claimant fifteen (15) weeks
of penalty benefits at the stipulated rate of two hundred
eighty-four and 96/100 dollars ($284.96) per week effective
the filing date of this decision.
Costs are assessed to defendants pursuant to rule 343
IAC 4.33.
Page 11
Defendants shall file claim activity reports as
requested by the agency pursuant to rule 343 IAC 3.1.
Signed and filed this ______ day of ____________, 1992.
______________________________
DAVID RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Harold B. Heslinga
Attorney at Law
118 North Market Street
Oskaloosa, Iowa 52577
Mr. E. J. Kelly
Attorney at Law
Suite 111, Terrace Center
2700 Grand Avenue
Des Moines, Iowa 50312
5-1803; 3701; 4000.2
Filed February 26, 1992
DAVID RASEY
before the iowa industrial commissioner
____________________________________________________________
:
RAYMOND LANGSTRAAT, :
:
Claimant, :
:
vs. : File No. 957007
:
CLOW CORPORATION, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
GAB, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
5-1803; 4000.2
Claimant awarded 30 percent industrial disability and 15
weeks of penalty benefits. Although extent of permanency
could be reasonably disputed, the existence of some loss of
earning capacity could not.
3701
Defendants' characterization of surveillance evidence was
shown impossible by time-stamping on the photos in evidence.
Evidence was criticized in detail.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
RAYMOND LANGSTRAAT, :
:
Claimant, :
:
vs. :
: File No. 957007
CLOW CORPORATION, :
: R E M A N D
Employer, :
: D E C I S I O N
and :
:
GAB, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
Claimant Raymond Langstraat suffered a work related
back injury on July 17, 1990. Following hearing, the
undersigned deputy issued an arbitration decision on
February 26, 1992, awarding industrial disability equivalent
to 30 percent of the body as a whole along with penalty
benefits. Defendants appealed. On March 20, 1992,
defendants made application for additional evidence based
upon the sworn statement of Mary Ellen Langstraat,
claimant's estranged wife. At the arbitration hearing, Ms.
Langstraat had testified that claimant came home from work
on July 17, 1990 complaining of a back injury sustained at
work that day. In her sworn statement (dated March 12,
1992), Ms. Langstraat claimed that Mr. Langstraat had
confessed to her that he had faked the work injury, having
actually hurt himself lifting a lawn mower at home.
On April 24, 1992, the industrial commissioner remanded
the case to receive additional evidence limited to the
matters raised in defendants' application.
The cause first came on for remand hearing before the
undersigned on September 16, 1992. Remand exhibits 1, 2 and
4-8 were received. Remand exhibit 3, the statement of Mary
Langstraat, was offered but objected to by claimant, since
Ms. Langstraat failed to appear at hearing. Ruling was
reserved. Because other evidence submitted made it appear
possible that Mary Langstraat had been subjected to threat
or coercion, the case was continued to October 12, 1992.
On the morning of October 12, the undersigned entered
into a telephone conference hearing with claimant's attorney
and Jane Van Werden, appearing for defendants. Counsel
advised that Mary Langstraat's deposition had been taken on
October 8, that there was no objection to the admissibility
Page 2
of the deposition and that neither party desired to submit
additional evidence. Later that day, the deposition was
filed marked as defendants' exhibit 8. The undersigned has
re-marked the exhibit as remand exhibit 9. It is hereby
received, along with remand exhibit 3. The case was deemed
submitted on October 12, 1992.
ISSUE
The issue presented is whether the new evidence
requires a reconsideration of the original arbitration
decision.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
About Mary Langstraat: She lies. She does so when she
is under oath and when she is not. She does so when
motivated by vindictiveness and vengefulness, even when
against her own pecuniary interest. She has no credibility
whatsoever.
The arbitration hearing was held on December 19, 1991.
A decision in claimant's favor was filed on February 26,
1992. On February 24, Mary Langstraat initiated a telephone
call to George L. Lind, a licensed attorney who testified by
deposition on June 4, 1992. Mr. Lind was then representing
Raymond Langstraat in pending divorce proceedings, but had
represented the family, including Mary, with respect to a
number of legal matters over a period of years. Mr. Lind
testified:
A. Mary advised me that Ray, her husband, had
lied regarding his workman's compensation case and
that he was hurt moving a lawn mower in the car
and that he had told her this one month ago, which
would have been late this January that he would
told her.
Q. Of '92?
A. Of '92.
And that she then told me she had found Ray
drunk and with a woman the evening before, which
would have been February 23 of '92, and that this
caused her to feel it necessary to -- I've got
here to cleanse her soul, period.
(Lind Deposition, Pages 5-6).
Mr. Lind also described Mary Langstraat's frame of mind
at the time of that conversation: "Very, very mad. Very,
very emotionally upset."
George Lind also described Mary Langstraat, based upon
his personal experience, as vindictive, vicious, even
"sick." More significantly, he is familiar with her
reputation for veracity in the community:
Page 3
A. I don't mean to be harsh on anybody.
Suffice it to say, E. J., if you mention the name
Mary Langstraat in our courthouse with anybody who
is familiar with what goes on, any lawyer, any
judge, any prosecutor, it's -- it's -- the name is
going to be responded to with a chuckle and laugh
and an inquiry of what the heck is she in to now?
If you were to say I'm going to use her as a
witness in my case, they truly will have a belly
laugh over it. She has no credibility whatever in
the community with anybody that I deal with, okay?
I don't mean to be overly harsh. I'm tying (sic)
to paint the picture as it is.
(Lind Depo., page 12).
In her October 8 deposition, Mary Langstraat recanted
her March 12 statement, claiming it had all been a lie. She
was a hostile and evasive witness and admitted to destroying
evidence prior to the deposition. After refusing several
times to disclose details of what had motivated her to lie,
she eventually testified as follows:
Q. Did you tell Mr. Heslinga that you were mad
at Ray because you had gone to Ray's house and
found him with another woman?
A. It wasn't because of the other woman.
Q. What was it because of then? Will you
please repeat the question?
(Thereupon, the prior answer and question on
Page 18, Lines 4-6, were read back by the Court
Reporter.)
Q. Was it because a woman named Dixie told you
that Ray was not going to set up a $3,000 trust
fund for your son?
A. Yeah.
Q. Tell me about this? Are you refusing to
answer?
A. Yes, I am. I'm starting to get my point
out.
Q. So if Ray recovers in the Worker's
Compensation hearing, then your son stands to
gain; correct?
A. I don't know ---
Q. I have no further----
A. --'til I talk to a lawyer.
(Mary Langstraat Depo., page 18).
Page 4
Earlier, she had testified that Ray "had gotten a
girlfriend and was drinking around the baby and everything
so I -- out of revenge, I lied on him." (Id. p. 5).
We know from Mr. Lind's testimony that some extraneous
force moved Mary Langstraat to accuse her husband of
workers' compensation fraud. She told Lind that having
"found Ray drunk and with a woman the evening before," was
her motivation for coming forward to "cleanse her soul."
Obviously, there can be no claim that she had been motivated
by a sense of justice or good citizenship, since she also
told Lind that Raymond Langstraat had supposedly "confessed"
the month before. In her first sworn statement, Mary
Langstraat testified that Raymond Langstraat admitted this
fraud on February 11. Even this is thirteen days before she
called Lind. She also testified that she could be specific
as to the date, as she had written it down. The
significance of this point will be considered again.
Mary Langstraat's grudging admission that her actions
were inspired by "Dixie" telling her that claimant was not
going to set up a $3,000.00 trust fund for their son rings
true: perhaps the sole particle of her testimony about which
this might be said. In context, that question with those
very specific facts came out of the blue. The immediate
answer constitutes an admission, one that she could not help
but realize reflected adversely on her character.
Therefore, the most likely explanation of Mary Langstraat's
accusations is that they were motivated by disappointed
greed.
However, this fact alone is dispositive of nothing.
Given Mary Langstraat's character as disclosed by the
evidence, it is equally consistent that she (1) knowingly
participated in her husband's fraud right from the very
beginning, or (2) that the claim is legitimate and she
acted wholly out of spite.
Now it will be recalled that Mary Langstraat was very,
very emotionally upset when she called Mr. Lind. There is
no question but that she was bent on doing harm (not
"cleansing her soul"). If she had in fact recorded her
husband's supposed confession on a calendar on February 11,
it is inconceivable that she would not have shared this
information with Lind. Instead, she told him that the
conversation had occurred one month before. Obviously, she
later manufactured evidence in the form of a calendar
notation, evidence which she has now destroyed:
Q. Where are those notes today?
A. They're burned.
Q. You burned those notes?
A. I had a right to, they were mine.
Q. Tell me what the notes said?
Page 5
A. I don't remember anymore.
Q. You have absolutely no recollection of what
your notes said on March 12, 1992, that you had
taken from your calendar?
A. No. That's the reason why I make notes so
I don't have to try and remember.
Q. Why did you burn your notes?
A. Because I wanted to. I was cleaning house
and moving.
Q. That's the only reason you burned your
notes?
A. Yeah. I burn a lot of garbage.
(Mary Langstraat Deposition, Page 10).
It is concluded that Ray Langstraat did not confess
fraud as his wife originally claimed.
The testimony of Mary Langstraat is entitled to no
weight whatsoever. Defendants also challenged Raymond
Langstraat's credibility on the basis of his criminal
Page 6
record. Claimant has been convicted of drunken driving,
driving under suspension and assault, but these crimes do
not indicate dishonesty or untruthfulness. Defendants'
brief invites this deputy to conclude that claimant is a
thief and liar as "substantiated" by evidence that he
currently has charges pending against him for theft in the
fifth degree. Ignoring the presumption of innocence that
attaches in criminal cases, they assert that these charges
directly relate to claimant's character for truthfulness and
honesty. This invitation is emphatically rejected. A
conviction of theft is proper impeachment evidence; an
unproven charge is not.
CONCLUSIONS OF LAW
This case is before this deputy to consider additional
evidence. It is not really defendants' burden to prove
anything, but the evidence presented should be considered
together with the evidence at the arbitration hearing. It
is now clear that the evidence given by Mary Langstraat at
that hearing is totally unreliable. But, the decision does
not rest on that part of the evidence. After all, she makes
no claim to have actually seen the injury, whether it was at
home or at work. Her testimony that her husband came home
complaining of a work injury supports claimant's version of
events but was not critical to the result, only
corroborative. Yet-unproven criminal charges do not reflect
adversely on claimant's credibility.
In particular, the evidence does not show that claimant
made any confession of workers' compensation fraud to his
wife, whether in late January or early February 1992.
No reason to further re-examine the arbitration
decision of February 26 appears of record.
ORDER
THEREFORE, IT IS ORDERED:
The result of the arbitration decision filed February
26, 1992 shall not be modified. This remand decision and
the arbitration decision filed February 26, 1992, shall
constitute final agency action on all issues in this case
unless further appeal is taken pursuant to rule 343 IAC 4.27
and 4.28.
Costs are assessed to the defendants.
Signed and filed this ____ day of October, 1992.
________________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Page 7
Mr Harold B Heslinga
Attorney at Law
118 North Market Street
Oskaloosa Iowa 52577
Mr E J Kelly
Ms Jane Van Werden
Attorneys at Law
Terrace Center Ste 111
2700 Grand Avenue
Des Moines Iowa 50312
3700; 2904; 2901
Filed October 27, 1992
DAVID R. RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RAYMOND LANGSTRAAT,
Claimant,
vs.
File No. 957007
CLOW CORPORATION,
R E M A N D
Employer,
D E C I S I O N
and
GAB,
Insurance Carrier,
Defendants.
___________________________________________________________
3700; 2906; 2901
Industrial Commissioner remanded for additional evidence
after defendants filed the sworn statement of claimant's
estranged wife to the effect that claimant had admitted that
his claim was fraudulent.
Wife failed to appear at remand hearing, but some evidence
offered showed a possibility of threat or other coercion.
Hearing was continued.
The case was then submitted upon the wife's deposition
without other testimony. In the deposition, wife recanted
her earlier sworn statement. Other evidence showed she is a
notorious liar.
None of wife's testimony was given weight, except her
concession that her accusations were motivated by revenge.
This did not change the result of the arbitration award,
since wife's testimony then was only corroborative.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
JAMES CLARK, :
: File Nos. 957200 & 1013327
Claimant, :
: A L T E R N A T E
vs. :
: M E D I C A L
BRIGGS CORPORATION, :
: C A R E
Employer, :
: D E C I S I O N
and :
:
KEMPER INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
Claimant, James Clark, filed a petition for alternate
medical care under Iowa Code section 85.27 (rule 343 IAC
4.48) on January 28, 1993. On February 2, 1993, defendants
filed a motion to dismiss claimant's petition. Defendants'
motion to dismiss claimant's petition for alternate care was
denied by another deputy industrial commissioner and
claimant's request for an in-person hearing was granted.
This matter came on for hearing before the undersigned
deputy industrial commissioner on February 11, 1993, in Des
Moines, Iowa. Claimant appeared in person and was
represented by his attorney, Mr. Philip F. Miller. Ms.
Deborah Dubik appeared on behalf of employer and insurance
carrier. The documentary evidence identified in the record
consists of claimant's exhibits 1 through 7 and defendants'
exhibit pages 1 through 10.
stipulation and issue
The parties agree that claimant sustained a back injury
arising out of and in the course of employment with employer
on March 7, 1990. However, defendants deny a causal
connection between claimant's neck problems and his work
injury.
The issue to be determined is whether defendants have
reasonably refused to authorize neck surgery and aftercare
with Alexander Lifson, M.D.
Page 2
findings of fact
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits, and makes the following findings:
Before any benefits can be ordered, including medical
benefits, compensability of the claim must be established,
either by admission of liability or by adjudication. The
summary provisions of Iowa Code section 85.27, as more
particularly described in rule 343 IAC 4.48, are not
designed to adjudicate disputed compensability of a claim.
Therefore, because defendants have disputed compensability
of claimant's neck claim, the undersigned cannot order
defendants to provide surgical intervention. However,
defendants are barred from asserting a "lack of
authorization" defense to any medical expenses incurred by
claimant, if they are otherwise compensable. Defendants
cannot deny liability and simultaneously direct the course
of treatment. Barnhart v. MAQ, Inc., I Iowa Industrial
Commissioner Report 16 (Appeal Decision 1981).
The parties stipulate that claimant sustained a back
injury arising out of and in the course of employment with
employer on March 7, 1990. Initially, claimant was treated
conservatively. Subsequently, he was diagnosed by Alexander
Lifson, M.D., with internal disc disruption of L4-5, L5-S1
and instability of L4-5, L5-S1. He was admitted to Abbott
Northwestern Hospital in Minnesota on May 29, 1991, where he
underwent anterior/posterior lumbar fusion at L4-5, L5-S1.
An internal fixation devise was implanted. He was
discharged on June 6, 1991, and advised to have x-rays taken
locally post-operatively and mailed to Dr. Lifson for
evaluation (defendants' exhibit pages 3 & 4).
Defendants referred claimant to Daniel J. McGuire,
M.D., a Des Moines, Iowa, orthopedic surgeon, for aftercare.
Office notes dated August 23, 1991, state:
...James is doing well from his back
standpoint. He is glad he had the operation and
he is making progress. He is active, he is
exercising.
His radiographs look excellent. Really no
motion on the flexion/extension views. His
posterior spinal fusion looks good, his hardware
looks good. The allograft bone anteriorly is in
good position although I don't see much evidence
of union.
(defendants' exhibit page 1)
For some reason the relationship between claimant and
Dr. McGuire deteriorated. Claimant claims that Dr. McGuire
told him there was nothing more he could do for him.
Insurance carrier has not authorized follow-up care with Dr.
Lifson. On June 24, 1991, Dr. Lifson reported to Mr. Randy
G. Hilbrant from Kemper Insurance company as follows, "Since
we used an internal fixation devise, I would like Mr. Clark
Page 3
to see me every six months for two years following the
procedure. In between these visits, he may see a physician
in his local area." (claimant's ex. p. 5).
The record contains a letter dated June 15, 1992, from
Kate Nordquist, Clinical Studies Monitor, at Advanced Spine
Fixation Systems Incorporated. She reported that, "Prior to
your surgery -- at the time you signed the patient consent
form -- you were notified that the device to be implanted on
your spine was an investigative device and that you would be
required to have a follow-up examination at six month
intervals for two years." (def. ex. p. 5).
Ms. Nordquist further states that "If you are being
followed by another physician, please show him or her this
letter and request that information regarding your status as
a post spine surgery patient be sent to this office as soon
as possible." (def. ex. p. 5).
At the hearing, claimant testified that he gave Ms.
Nordquist's letter to his attorney who then wrote to Dr.
Lifson. On October 22, 1992, Dr. Lifson corresponded with
claimant's attorney and stated:
As you probably know, we went through enormous
hurdles before we received authorization to
proceed with surgery. It was mutually understood
when we asked Mr. Clark and his insurance carrier
that he would have to be followed in our clinic
for two years at six-month intervals, as is
indicated in the letter from Advance Spinal
Fixation, Inc. These evaluations are extremely
important not only for completion of the study but
also for evaluation of Mr. Clark's condition.
(claimant's exhibit page 6).
conclusions of Law
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Section 85.27; Holbert v.
Townsend Engineering Co., Thirty-second Biennial Report of
the Industrial Commissioner 78 (Review-reopen 1975).
Claimant has the burden of proving that the fees charged for
such services are reasonable. Anderson v. High Rise
Construction Specialists, Inc., file number 850096 (Appeal
Decision July 31, 1990).
Claimant is not entitled to reimbursement for medical
bills unless claimant shows they were paid from claimant's
funds. See Caylor v. Employers Mut. Casualty Co., 337
N.W.2d 890 (Iowa Ct. App. 1983).
Page 4
When a designated physician refers a patient to another
physician, that physician acts as the defendant employer's
agent. Permission for referral from defendant is not
necessary. Kittrell v. Allen Memorial Hospital,
Thirty-fourth Biennial Report of the Industrial Commissioner
164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
An employer's right to select the provider of medical
treatment to an injured worker should be diagnosed,
evaluated, treated or other matters of professional medical
judgement. Assman v. Blue Star Foods, Inc., file no. 866389
(declaratory Ruling, May 18, 1988).
Claimant's treating surgeon, Dr. Alexander Lifson, has
recommended that he be evaluated at the Institute for Low
Back Care in Minneapolis, Minnesota, for two years at
six-month intervals. The recommendation is a matter of
professional medical judgment in which defendants cannot
appropriately interfere. Although defendants provided
claimant with aftercare by Dr. McGuire, such care, for
whatever reason, has proved ineffective. The tone of Dr.
McGuire's office note dated July 16, 1991, appears to
reflect an underlying reluctance to assume the follow-up
care of another physician's surgical patient. He states,
"He has had his surgery somewhere else, I am nice enough to
assume his care here in town so he doesn't have to commute
back and forth to Minneapolis." (def. ex. p. 1).
It appears that claimant's aftercare is better served
with Dr. Lifson and his medical judgment followed in this
instance. Therefore, it is concluded that claimant has
established the right to care under section 85.27 with Dr.
Lifson at the low back institute in Minneapolis, Minnesota,
and defendants shall provide such care, including x-rays and
in-person evaluation, if determined to be necessary by Dr.
Lifson.
order
THEREFORE, IT IS ORDERED:
That defendants provide claimant with x-rays and any
post-surgical care deemed necessary by Dr. Lifson.
Defendants shall also provide claimant with payment for any
transportation costs associated with attendance at the low
back institute.
Defendants shall pay costs of this proceeding.
The undersigned has been delegated the authority to
issue final agency action in this matter. Appeal of this
decision, if any, would be by judicial review pursuant to
Iowa Code section 17A.19.
Signed and filed this ____ day of February, 1993.
______________________________
Page 5
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Philip F. Miller
Attorney at Law
309 Court Ave, STE 200
Des Moines, Iowa 50309
Ms. Deborah Dubik
Attorney at Law
600 Union Arcade Bldg
111 E 3rd St.
Davenport, Iowa 52801
Page 1
2701
Filed February 16, 1993
Jean M. Ingrassia
before the iowa industrial commissioner
____________________________________________________________
:
JAMES CLARK, :
: File Nos. 957200 1013327
Claimant, :
: A L T E R N A T E
vs. :
: M E D I C A L
BRIGGS CORPORATION, :
: C A R E
Employer, :
: D E C I S I O N
and :
:
KEMPER INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
2701
Found that medical provider's recommendation that claimant
receive follow-up care with treating surgeon was a matter of
professional medical judgment with which employer could not
appropriately interfere.
Defendants ordered to provide recommended x-rays and
follow-up evaluation by treating surgeon if necessary.