Page 1
before the iowa industrial commissioner
____________________________________________________________
:
SUSAN BLODGETT, :
:
Claimant, :
:
vs. :
: File No. 965009
CATHOLIC HEALTH CORPORATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
RELIANCE NATIONAL INSURANCE :
COMPANY, Represented by: :
:
SEDGEWICK JAMES, Administrator:
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
introduction
This is a proceeding in arbitration filed by Susan
Blodgett, claimant, against Catholic Health Corporation,
employer, and Reliance National Insurance Company,
represented by Sedgewick James, administrator, for benefits
as a result of an alleged injury which occurred on October
17, 1990 (Transcript, page 3). A hearing was held in
Council Bluffs, Iowa on May 13, 1992 and the case was fully
submitted at the close of the hearing. Claimant was
represented by Jacob J. Peters. Defendants were represented
by Melvin C. Hansen. The record consists of the testimony
of Susan Blodgett, claimant, Karen Stricklett,
rehabilitation consultant, Jodi Strehle, vocational
rehabilitation employee, Michael Newman, vocational
consultant and joint exhibits 1 through 54. Both attorneys
submitted excellent post-hearing briefs.
issues
The parties submitted the following issues for
determination.
Whether claimant sustained an injury, on October 17,
1990, which arose out of and in the course of her employment
with employer.
Whether the alleged injury was the cause of either
temporary or permanent disability.
Whether claimant is entitled to either temporary or
permanent disability benefits and if so, the nature and
extent of benefits to which she is entitled.
Whether claimant is entitled to penalty benefits
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pursuant to Iowa Code section 86.13(4).
findings of fact
injury
It is determined that claimant sustained an injury to
her lumbar spine on October 17, 1990, which arose out of and
in the course of her employment with employer.
Claimant started to work for employer in April of 1990.
She was hired by her supervisor, Susan Lorkovic (Ex.
52, p. 9), as a general duty nurse on a medical surgical
floor (Ex. 52, p. 10).
Claimant testified that she injured her lumbar spine
while attempting to rescue a confused patient who was
getting out of bed. Claimant testified, "I grabbed her and
maneuvered her back into bed." (Tran., p. 29). Claimant
said this was a very big woman and that she prevented the
woman from hitting the floor. During the process she
twisted her back and felt a strong pull and a sharp pain
near her tailbone.
After the incident claimant was assisted by the house
supervisor who insisted that claimant make an incident
report (Tran., pp. 30 & 31). Bobbie Pearey, employee health
services manager, testified by deposition that claimant did
report the incident promptly. Pearey verified that the
clinical nursing duty which claimant was performing very
definitely required lifting and physical work. Pearey
testified that her assistant recorded that claimant was
putting a confused, combative patient back to bed and that
she twisted the lumbar area of her back while doing it.
Claimant and Pearey both testified that claimant was
initially referred to James Rochelle, M.D. (Tran., p.34;
Exhibit 52, p. 15).
Claimant testified that the injury occurred on
Wednesday, October 17, 1990. She felt bruising on Thursday,
October 18, 1990. On Friday, October 19, 1990, claimant
testified that she bent over at home and that she could not
get back up. She said her back locked up. Claimant said
that nothing like this had ever happened before and there is
no evidence that claimant had any prior back injuries
(Tran., pp. 32 & 33; Ex. 1, pp. 1-8; Ex. 13, pp. 1-5).
Doctor Rochelle saw claimant on Tuesday, October 23,
1990. His x-rays disclosed mild disc space narrowing at
L4-L5 with a small osteophyte but no acute changes. He
diagnosed a probable lumbar disc bulge with left leg
sciatica and quadricep weakness. On Tuesday, October 30,
1990, Dr. Rochelle referred claimant to Alan H. Fruin, M.D.,
a neurosurgeon, to evaluate the finding of quadricep
weakness by way of a myelogram or an MRI (Ex. 16 & 17).
Claimant testified that when they called her name in
Dr. Rochelle's office, she stood up, her leg went out, it
buckled, and she fell to the floor (Tran., p. 35 & 36).
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Dr. Fruin saw Claimant on November 2, 1990 for a six
week history of back and left leg pain which was not
resolving. He said claimant had paresthesias in her left
leg and that she was falling a great deal. Dr. Fruin
scheduled an MRI examination (Ex. 18).
A CT scan ordered by Dr. Fruin on November 6, 1990, at
St. Joseph Hospital raised the question of a moderate sized
central L4-5 disc herniation, however, the radiologist could
not be sure due to the patient's obesity which caused
considerable statistical mottle within the spinal canal
which reduced the quality of the image. No definite disc
herniation or spinal stenosis was detected at L5-S1 but
again the quality of the image was degraded by the patient's
obesity (Ex. 14).
Claimant testified that her weight at the time of the
hearing was 330 pounds that it was probably more than that
at the time of the injury (Tran., p. 83).
An electromyogram and nerve conduction test on November
16, 1990, showed normal nerve conduction testing and a
normal EMG in the left lower extremity. The testing medical
doctor concluded, "To summarize, the electrical testing is
currently normal, and without evidence of any injuries to
myelin or axons at a left lower extremity peripheral nerve,
left lumbosacral plexus, or left lumbosacral motor nerve
root level at this time." (Ex. 21).
Claimant testified that Dr. Fruin ordered an MRI out in
west Omaha, but Heartland Rehabilitation, her medical case
manager transferred her care to Bernard L. Kratochvil, M.D.,
an orthopedic surgeon and that she did not receive the MRI
at that time (Tran., p. 36).
Jeanette Obal, the Heartland Rehabilitation specialist
at that time reported on January 19, 1991, that Dr. Fruin's
treatment plan was rest and symptomatic treatment and that
he refused to prescribe physical therapy or work hardening.
She said that Dr. Fruin diagnosed chronic lumbar strain;
that claimant should not lift greater than 20 pounds; and
that claimant should alternate sitting, standing and
walking. Dr. Fruin was unable to anticipate the date of
maximum medical improvement or a date of release to return
to work without restrictions. Obal reported that at this
point the course of medical case management was altered and
an appointment was made with Dr. Kratochvil on January 28,
1991 (Ex. 31, pp. 2 & 3).
Dr. Kratochvil recorded on January 28, 1991, that
claimant injured her lower back while trying to prevent a
patient from falling. She complained of pain in the lower
back, both buttocks and lower extremities posteriorly. His
physical examination disclosed only tenderness to pressure
in the lower lumbar area. The straight leg raising test was
negative on both sides. There were no neurologic deficits
in the lower extremities. Strength was adequate and there
was no sensory disturbance in the lower extremities. There
was no muscle spasm or structural deformity of the back.
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A.P. view x-rays of the lumbar spine were normal and showed
the spine as straight. The lateral view showed narrowing of
the L4-5 and L5-S1 disc spaces. No further changes were
noted. Dr. Kratochvil diagnosed (1) degenerative discs at
L4-5 and L5-S1 and (2) lumbar strain/sprain. He ordered
physical therapy and medications (Ex. 13, pp. 5 & 6; Ex. 51,
pp. 5-9).
Dr. Kratochvil stated that the lumbar strain was caused
by the lifting incident which occurred on August 17, 1990.
The degenerative disc problem was a wear and tear change or
an aging change that was not caused by this injury (Ex. 51,
pp. 9 & 10). Dr. Kratochvil also agreed that the
degenerative changes preexisted the strain/sprain (Ex. 51,
p. 26). The doctor said the degenerative disc disease was
not caused by the work but the sprain/strain injury did
aggravate the preexisting degenerative disc disease (Ex. 51,
pp. 28 & 29).
Furthermore, Pearey, the manager of employee health
services for employer, testified that there was no evidence
that claimant had any prior back injuries (Ex. 52, p. 9) and
that she did not have any reason to believe that claimant
was injured off the job (Ex. 52, p. 14).
Wherefore, it is determined that all of the medical and
nonmedical evidence in this case support the determination
that claimant sustained an injury to her lumbar spine on
October 17, 1990, while handling a patient which arose out
of and in the course of her employment with employer.
causal connection
It is determined that the injury of October 17, 1990,
to claimant's lumbar spine was the cause of both temporary
and permanent disability.
The same evidence which proves that the employment was
the cause of the claimant's injury also establishes that the
injury was the cause of both claimant's temporary disability
and permanent disability. Dr. Kratochvil attributed
claimant's entire problem to this injury (Ex. 51, p. 9, 10,
26, 28, 29). Claimant gave a consistent history to her
supervisors at work and to all of the doctors. This history
was not disputed by any of her supervisors, the manager of
employee health services, other employer representatives,
the insurance company, counsel for the defendants, Dr.
Rochelle, Dr. Fruin, or Dr. Kratochvil. Dr. Kratochvil
testified that he did not believe that claimant had any
trouble prior to this incident (Ex. 51, p. 28). Claimant
denied and there is no evidence of any prior back problems.
Wherefore, it is determined that the injury of October
17, 1990, to claimant's lumbar spine while assisting a
patient was the cause of both temporary and permanent
disability.
entitlement-temporary disability benefits
It is determined that claimant is entitled to 45.429
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weeks of healing period benefits. She is entitled to 36
weeks of healing period from October 19, 1990 through June
27, 1991. She is entitled to an additional 9.429 weeks of
healing period benefits for the period from March 4, 1992
through May 8, 1992.
Claimant's healing period begins on October 19, 1990
for the following reasons. First, claimant testified that
the injury occurred on October 17, 1990. She felt bruising
but worked on October 18, 1990. On the third day after the
injury, October 19, 1990, she was unable to work and talked
to the employee health nurse. "I was instructed to see a
doctor." (Tran., p. 33).
Second, Pearey, the employee health services manager,
testified that claimant reported the injury and about two
days later she called in ill due to back pain (Ex. 51, p.
11). Third, the records of Dr. Rochelle verify that
claimant was able to complete working her shift on the day
of the injury (October 17, 1990) and that she was able to
work the next day (October 18, 1990) but that she has been
off work since that time (October 19, 1991) (Ex. 17).
Dr. Rochelle referred claimant to Dr. Fruin on October
31, 1990. Dr. Fruin issued a slip on November 2, 1990, that
claimant should be off work until further notice (Ex. 19).
Dr. Fruin never did return claimant to work. He was unable
to anticipate the date of maximum medical improvement or a
date of release of return to work without restriction (Ex.
31, p. 3). As late as May 15, 1991, Dr. Fruin said that he
told claimant that he thought she would eventually improve
but that in all likelihood it would take months (Ex. 20).
When Dr. Kratochvil first saw claimant on January 28,
1991, he continued to keep her off work (Ex. 13, p. 6).
When Dr. Kratochvil allowed claimant to return to work on
February 28, 1991, it was only on a part-time, trial basis
for a temporary period of time while he continued to treat
claimant with physical therapy and prescription medications.
When Dr. Kratochvil returned claimant to work in March of
1991 claimant had specific restrictions of not doing
anything strenuous (Ex. 3). He made it clear that this was
not a release for full-time work and that a permanent
impairment had not yet been established as of February 28,
1991 (Ex. 3).
Claimant described how she made a good faith effort to
work in March of 1991 but contended that she was unable to
do it (Tran. pp. 40-48). Claimant testified that Dr.
Kratochvil said, "If you can work, work. It you can't,
don't work. If you can't work, you can't work, is what he
said. And at that point, I couldn't." Therefore Dr.
Kratochvil wrote on April 1, 1991 that claimant was to
remain off work until further notice because of her
degenerative disc disease and lumbar sprain/strain (Ex. 4).
On April 4, 1991, an MRI of the lumbar spine without
contrast was performed at the request of Dr. Kratochvil.
The radiologist stated that the patient is quite obese
weighing 300 pounds. She also moved during the examination.
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This detracted from the quality of the study. However, he
believed that he had obtained some helpful information from
the scan. At L4-L5 he found moderate degeneration and
moderate protrusion of the disc to the left. At L5-S1 he
found mild degeneration and mild posterior protrusion to the
left (Ex. 15).
On May 2, 1991, Dr. Kratochvil clinically could only
find tenderness to pressure in the lower back. Leg raising
was negative there was no neurological deficit. He
recommend she see Dr. Fruin again. He also suggested a
caudal block and a lumbar myelgram. He also suggested a
functional capacity assessment. He concluded that she had
not reached a maximum medical improvement unless she decides
to forego any further procedures. He felt it was too soon
to determine permanent impairment as well (Ex. 6, p. 3). On
May 2, 1991, Dr. Kratochvil said he did not believe claimant
had reached maximum medical improvement (Ex. 6, p. 3).
On May 15, 1991, Dr. Fruin reported that he saw
claimant on May 10, 1991, due to her longstanding chronic
lumbar strain. He said the MRI scan did show significant
degeneration of her lumbar discs, but there is no evidence
of herniation and there was certainly no clinical suggestion
of a neurological impairment. He said it would be months
before she realized improvement from this condition. He
recommended that she find work that did not require
significant standing, lifting or repetitive bending. He
recommended only symptomatic care of simple analgesics and
anti-inflammatory agents for her complaints (Ex. 20).
The functional capacity assessment was conducted on May
17, 1991 by John Dobler, a physical therapist. He reported
on May 21, 1991, that claimant reported increased symptoms
in her low back with all activities. He said the validity
of the test indicated that claimant may have a focus on her
pain and limitations. He said the test results were only
conditionally valid representations of claimant's present
physical capabilities because the test results represented
only what claimant perceived as her capabilities and that
working beyond these levels would probably elicit symptoms
that she would find painful and problematic. He added that
her functional capabilities had decreased since she
participated in his flexibility and strengthening program in
February of 1991. He indicated she would be a good
candidate for a comprehensive pain management program which
would address her physical condition, pain management and
coping skills (Ex. 24).
Dr. Kratochvil explained that the term "conditionally
valid" was a term used when the physical examiner was not
able to get complete cooperation from the patient or if the
patient had discomfort performing some of the tests. He
said it usually indicates that the functional capacity
assessment doesn't give a complete picture of what the
patient is able to do (Ex. 51, p. 22).
On May 29, 1991, Dr. Kratochvil noted that Dr. Fruin
agreed that only symptomatic care of simple analgesics and
anti-inflammatory agents were indicated for this patient.
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He noted that the functional capacity assessment was only
conditionally valid but the test indicated that she could
perform tasks in the sedentary work category with limited
walking and standing tolerances. Dr. Kratochvil said he had
suggested (1) a caudal block, (2) a lumbar myelogram, (3) an
MMPI evaluation and (4) a pain management clinic at the
University of Nebraska but that claimant was not
particularly receptive to any of these ideas. He said he
had nothing further to suggest in the way of treatment. He
added that her work capacities as outlined in the functional
capacity assessment were probably only temporary. He
estimated that she had a 5 percent permanent partial
impairment of the whole person as a result of this injury.
However he did not specifically state whether claimant had
obtained maximum medical improvement as of May 29, 1991 (Ex.
7).
Dr. Kratochvil did clarify and specify on June 27, 1991,
"Susan Blodgett has reached maximum medical improvement and
has a 5 percent permanent impairment of the whole person as
a result of her injury in October of 1990. There are other
forms of treatment and evaluation, but at her last visit she
was not receptive to those suggestions." (Ex. 8).
Dr. Kratochvil, who is a board certified orthopedic
surgeon and who has been practicing orthopedic surgery for
20 years (Ex. 51, p. 6) testified, "She was looking for some
easy answer, as far as I could tell, and there were none."
(Ex. 51, p. 19). Dr. Kratochvil added that when she left he
got the impression that claimant was not coming back (Ex.
51, p. 20). Therefore, Dr. Kratochvil testified that on
June 27, 1991, he determined that claimant had reached a
maximum medical improvement (Ex. 51, p. 39) and determined
that claimant had sustained a 5 percent permanent impairment
of the whole person as a result of this injury ( Ex. 51, p.
41).
An unreasonable refusal by an employee to accept
medical treatment may be the basis for terminating healing
period benefits. Johnson v. Tri City Fabricating and
Welding Company, 33 Biannual Report, Iowa Industrial
Commissioner 179 (Appeal Decision 1977). At the same time a
reasonable refusal of medical treatment should not be the
basis for terminating healing period benefits. Bruneau v.
Insulation Service Inc., 1 Iowa Industrial Commissioner
Report 34, 35 (Appeal Decision 1981); Decker v. Hartford
Auto Sales, Inc., 2 Iowa Industrial Commissioner Report 105
(1982); Adams v. Happel & Sons, Inc., 34 Biannual Report,
Iowa Industrial Commissioner 11 (1979); Wachsman v. Mason
City Tile & Marble Co., 32 Biannual Report, Iowa Industrial
Commissioner 165 (1975); Arnaman v. Mid America Freight
Lines, I-3 Iowa Industrial Commissioner Decision 497 (1985);
John Deere Davenport Works, II-1 Iowa Industrial
Commissioner Decisions 305 (1984); Smith v. Wayne County,
I-1 Iowa Industrial Commissioner Decisions 232 (1984).
It is determined that claimant's refusal of a caudal
block, a myelogram, a Minnesota multi-basic inventory (MMPI)
and treatment at a pain management center did not constitute
unreasonable refusal of medical treatment. A caudal block
and a myelogram require a spinal injection which is a
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physically invasive procedure and entails some serious
risks. Patients are normally required to sign a waiver of
liability and acknowledge that they have been informed that
these procedures could result in paralysis or death.
Claimant, a registered nurse, testified that her experience
with patients who had received caudal blocks was that they
were not successful. Furthermore, she added that she had a
spinal tap when she had encephalitis as a teenager and that
it was a very traumatic experience and as a result of that
she had a fear of spinal injections (Tran., pp. 49 & 50).
Dr. Kratochvil understood and explained that claimant's fear
was not unusual. He testified, "I think that she just
didn't like the idea of having a needle put in the lower
back, which a lot of people feel that way about it." (Ex.
51, p. 16).
It is the agency expertise of this deputy that caudal
blocks frequently do not provide any relief from pain, and
in the few instances where they have been successful they
only provided temporary relief for a matter of a few hours.
With respect to the myelogram, it was not necessary
because both Dr. Fruin and Dr. Kratochvil agreed that
claimant was not a surgical candidate. In addition,
claimant had x-rays, a CT scan and a MRI and there was no
evidence that a myelogram was essential to her diagnosis or
treatment of a lumbar sprain/strain.
There is no evidence medical or nonmedical, from either
Dr. Fruin, Dr. Kratochvil or any other source that a
myelogram or a caudal block would have improved claimant's
back strain. Nor was there any such evidence that MMPI or
treatment at a pain management facility, both of which are
usually psychologically invasive procedures, would have
added anything to the diagnoses of lumbar back
strain/sprain, improve claimant's condition or significantly
altered the course of improvement of her condition.
Even though claimant requested evaluation and treatment
at the University of Nebraska Medical Center Pain Clinic and
Dr. Kratochvil prescribed it on August 26, 1991, there is no
evidence that the insurance carrier authorized this
treatment or that claimant attended this treatment.
Furthermore, there is no evidence that if claimant had
attended the pain clinic her condition would have been
improved. Dr. Kratochvil testified that the program
attempts to wean claimants from medications and is geared to
get the individual to learn to live with their problem (Ex.
51, pp. 32 & 33).
Wherefore, it is determined that claimant's refusal of
these four procedures was not unreasonable and it does not
require a termination of temporary weekly benefits.
Nevertheless, claimant's refusal of these four
procedures by the board certified treating orthopedic
surgeon, with 20 years of experience, place Dr. Kratochvil
in the position to state legitimately that he had nothing
further to offer claimant and supported his conclusion of
June 27, 1991, that claimant had attained maximum medical
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improvement.
Claimant attempted to make out a case for additional
healing period benefits by virtue of the fact that Dr.
Kratochvil testified that after June 27, 1991 claimant
remained in his care and that she was unable to work and
that he had not released her to return to work (Ex. 51, p.
29-38). However, Iowa Code section 85.34 (1) states that
healing period terminates when the first of the three
conditions occurs. The first condition to occur was the
determination of Dr. Kratochvil that claimant had attained
maximum medical improvement on June 27, 1991. It still
never has been determined that claimant could return to work
or even return to substantially similar employment.
An examination of Dr. Kratochvil's notes and reports
and his deposition testimony do not show any improvement
between June 27, 1991 and March 4, 1992, when Dr. Kratochvil
prescribed and claimant agreed to participate in a physical
therapy/work hardening program which did in fact improve her
condition. Between June 27, 1991 and January 7, 1992, Dr.
Kratochvil stated that his notes indicated that she might
require some occasional physical therapy or occasional
medication but there is no evidence of any improvement in
her condition until after she began the physical
therapy/work hardening program on March 4, 1992 (Ex. 51, pp.
38-41).
Dr. Kratochvil did write the prescription for the pain
clinic on August 6, 1991 at claimant's request but there is
no evidence that she participated in the pain clinic program
(Ex. 51, p. 32; Ex. 9). It is quite possible that
defendants denied her this treatment, since claimant
requested this treatment.
Claimant contended that the physical therapy/work
hardening program and the pain clinic were denied to her in
the fall of 1991, but that she was authorized to begin the
physical therapy/work hardening program on March 4, 1992.
An authorization was signed by Dr. Kratochvil on March 4,
1992 (Ex. 12). Claimant testified that the program was
wonderful and she began getting stronger (Tran. pp. 65-68).
Dr. Kratochvil renewed the prescription for the work
hardening program again on April 24, 1992 (Ex. 51, p. 33 &
Deposition Ex. 6).
Dr. Kratochvil testified that he did not see claimant
between May 29, 1991 and April 24, 1992. When he did see
her on April 24, 1992, she was in the work hardening
program, and she was feeling better. It seemed to be doing
some good. Claimant was again receptive to getting back to
work as a nurse (Ex. 51, p. 43).
Claimant was in the work hardening program at the time
of Dr. Kratochvil's deposition testimony (Ex. 51, p. 45).
Dr. Kratochvil testified that when claimant completed the
work hardening program on May 8, 1992, she would have
attained maximum medical improvement a second time (Ex. 51,
p.21 & 25). Dr. Kratochvil stated that the physical
therapy/work hardening program he authorized on March 4,
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1992, was an attempt to get claimant back to work through
additional physical conditioning. He testified that it did
improve her condition.
Wherefore, it is determined that claimant is entitled
to a second period of healing when she began showing
improvement again from March 4, 1992, until the completion
date of the physical therapy/work hardening program on May
8, 1992, a period of 9.429 weeks.
In conclusion, it is determined that claimant is
entitled to healing period benefits from the date she was
first unable to work on October 19, 1990, until Dr.
Kratochvil determined that she had attained maximum medical
improvement on June 27, 1991, a period of 36 weeks. It is
further determined that claimant is entitled to a second
period of healing while claimant was in the physical
therapy/work hardening program from March 4, 1992 through
May 8, 1992, a period of 9.429 weeks. Claimant's total
entitlement to healing period benefits then is 45.429 weeks
of temporary total healing period benefits.
entitlement-permanent disability
It is determined that claimant has sustained a 30
percent industrial disability to the body as a whole and is
entitled to 150 weeks of permanent partial disability
benefits.
Claimant contended that she sustained a 50 percent
industrial disability to the body as a whole.
Claimant's injury is sprain/strain of the lumbar spine
which aggravated her moderate degeneration and protrusion of
the L4-5 disc on the left and her mild degeneration and mild
posterior protrusion of the L5-S1 disc to the left. The
disc disease was issustrated by x-ray, a CT scan and MRI.
Dr. Fruin recommended only symptomatic treatment of simple
analgesics and anti-inflammatory agents (Ex. 20). Dr.
Kratochvil concurred in this recommendation (Ex. 7).
Surgery has never been recommended.
Claimant has suffered a significant amount of
depression during the course of her recovery. Dr.
Kratochvil referred to it several times in his records and
in his deposition testimony. However, Dr. Kratochvil
testified, "I don't think it's directly related. I think
that her depression is probably related to a lot of her
personal problems." (Ex. 51, p. 36).
Claimant was seen by John V. Fernandez, M.D., a
psychiatrist at the request of her attorney on October 8,
1991. Among other things, Dr. Fernandez noted (1) her
inability to work in the intensive care unit anymore, (2)
her restriction to sedentary work, which she had not been
able to find and (3) her inability to drive for more than 40
minutes without experiencing pain. He noted that she had
always had a problem with obesity weighing between 295 pound
and 330 pounds and that her obesity aggravated her back
condition.
Page 11
The doctor also noted mixed insomnia, deteriorating
energy levels and no motivation to do anything at all. He
also mentioned social withdrawal, pessimistic attitude,
crying spells, poor concentration, forgetfulness, increased
irritability and increased temper outbursts. Dr. Fernandez
mentioned that claimant has hypertension controlled by
medication and that she is also an insulin dependent
diabetic. He said that the patient is preoccupied with her
multiple social problems and her depressive symptoms. He
diagnosed a major depressive disorder, probably reactive to
the series of events that had afflicted her, which would
include this injury and its consequent problems (Ex. 26).
Defendants did provide claimant with some weight
reduction assistance in January of 1991 (Ex. 22).
Dr. Kratochvil assessed a 5 percent permanent
impairment to the body as a whole caused by the lumbar
sprain/strain which aggravated claimants degenerative disc
disease. None of the other physicians, Dr. Rochelle or Dr.
Fruin determined a permanent impairment rating.
With respect to restrictions, Dr. Fruin recommended on
May 15, 1991 that claimant find a job that does not require
her spending significant time on her feet. He added that
the job should not involve significant lifting or repetitive
bending (Ex. 20). Dr. Kratochvil concurred in the same
restrictions on May 29, 1991 (Ex. 13, p. 8).
Defendants have been critical of the functional
capacity assessment performed on May 21, 1991, because of
its highly subjective rather than objective conclusions and
claimant's failure to cooperate in her own recovery. The
examiner reported (1) increased symptoms with all
activities, (2) a focus on her pain and limitations, (3)
that anger was an influence, and (4) that claimant had
become physically deconditioned from earlier gains from
physical therapy. The examiner reported that the physical
capacity assessment was only conditionally valid because it
was based upon claimant's perceived capabilities because
claimant felt that working beyond these levels might be
painful or problematic. Nevertheless, the conclusion of the
examiner was that due to limited walking and standing
tolerances claimant should be able to perform sedentary work
(Ex. 24).
Dr. Kratochvil testified in his deposition that he
would concur in the functional capacity assessment
recommendations even though they were only conditionally
valid (Ex. 51, p. 24) and even though he stated on May 29,
1991, that these results were probably temporary at that
time (Ex. 7, p. 2). Dr. Kratochvil concluded, "Basically,
she shouldn't do any strenuous bending or lifting and she
shouldn't be expected to be on her feet for long periods of
time. In other words, she should have a job where she can
sit and stand and walk whenever she feels a desire to do
so." (Ex. 51, p. 24).
Dr. Kratochvil said that claimant could work as a nurse
Page 12
but there would have to be some restrictions on her job
activities of no strenuous bending or lifting (Ex. 51, p.
24). Dr. Kratochvil agreed at another point that claimant
was employable according to her previous functional capacity
assessment and that she might require occasional physical
therapy or occasional medication (Ex. 51, pp. 40 & 41). Dr.
Kratochvil further testified a third time that he thought
claimant was employable according to the restrictions of the
functional capacity assessment and that in his opinion he
thought they were still valid (Ex. 51, p. 44).
Karen Stricklett, M.S., C.R.C., D.I.R.S., A.B.V.E., a
private rehabilitation consultant, interviewed claimant on
August 26, 1991, wrote a report on August 15, 1991 and
testified at the hearing on August 13, 1992. Stricklett
testified that sedentary employment is limited to lifting 10
pounds maximum, working while seated six of eight hours and
minimal standing and walking (Ex. 97, p. 3). She testified
that claimant's previous employments of nurse aid, licensed
practical nurse, private duty nurse and general duty nurse
were classified as medium work which requires lifting up to
50 pounds. Claimant's previous job as a phlebotomist is
classified as light work which is typically lifting up to 20
pounds.
Stricklett determined using her computer program that
prior to this injury claimant had access to the employment
market of 20.54 percent whereas after the injury her access
was only 5.19 percent, which reflects a 75 percent loss of
access to the Omaha Council Bluffs labor market, based upon
the physical restrictions described by Mr. Dobler and Dr.
Kratochvil (Tran., p. 92; Ex. 27, p. 8). Stricklett
testified that her computer program was, "A very general
tool - the figures that we get from running that program are
not cut and dried, it just gives us some ideas as to how
that person's employability has been impaired." (Trans., p.
95). Stricklett named several specialized hybrid type jobs
that claimant could perform (Ex. 27, p. 8) but testified
that it does not necessarily mean that she would qualify for
those jobs. They are specialized jobs. They are few and
far between. They are difficult to obtain (Tran. pp. 97 &
98).
Stricklett testified that claimant would require
selective job placement assistance which requires marketing
the client to the employer and even offering the employer
hiring incentives (Tran., pp. 98 & 99). Stricklett
testified that you have to go out and sell that employee
(Tran., p. 99). She said you might have to do a hard sell
and negotiate some sort of an on-the-job training contract
in order to find an employment opportunity for the client
(Trans., p. 100). Stricklett testified that in this case it
would require selective placement assistance (Tran., p.
101).
Stricklett estimated that claimant earned $650 a week
for the twenty-six weeks preceding her injury and that with
selective placement in one of the remaining specialized jobs
in the nursing field that claimant could earn $400 to $600
per week, which constituted an immediate wage loss somewhere
Page 13
between 8 percent and 38 percent (Ex. 27, pp. 8 & 9).
In her report Stricklett testified "A reasonable
estimate of the extent of industrial disability relative to
Ms. Blodgett's permanent impairment and physical
restrictions would appear to fall within the 20 percent to
25 percent range." (Ex. 57, p. 10). At the hearing
Stricklett testified that after listening to claimant
testify she would estimate that claimant's industrial
disability was now much higher because her condition had
deteriorated but at the same time Stricklett acknowledged
she had no new medical evidence to support this conclusion.
Stricklett concluded by testifying that using aggressive
selective placement that she could find claimant a full-time
job in her career field (Tran., p. 103). There was no
evidence from either party as to why Stricklett had not been
hired to do so.
Michael L. Newman, M.S., CVE, a vocational
rehabilitation consultant and part-owner of Heartland
Rehabilitation did not interview claimant personally but
gave a report dated September 5, 1991, based upon various
written materials that he had examined (Ex. 28; Tran. pp.
134, 135 & 143). Newman determined that the restrictions of
physical therapist Dobler and Dr. Kratochvil, based upon the
conditionally valid functional capacity assessment, were
both subjective and self-imposed (Ex. 28, pp. 3 & 4). In
addition, he stated that claimant's job seeking efforts had
been only fair to poor (Ex. 28, p. 5). Newman's report and
various other Heartland reports support the fact that
claimant did not send out resumes to all of the job leads
furnished to her; she frequently did not send out a resume
until two months after she received the job lead; claimant
failed to follow-up the resumes with a telephone call
requesting an interview. He said her reasons included the
inaffordability of making telephone calls, sending resumes
and driving to attend an interview. She refused to let
Heartland send out resumes on her behalf. She became angry
when Heartland contacted the employers to see if they had
received a resume. Newman concluded, "This behavioral
pattern is well established and indicates, for whatever
reason, that the client is not conducting an effective job
search." (Ex. 28, p. 5; Ex. 29 & Ex. 45).
At the hearing, Newman admitted that he was aware of
the fact that some of these so called job possibilities were
not actually hiring people but were only accepting resumes
(Tran., p. 150). Heartland actually began contacting
claimant on behalf of the claim administrator, Sedgwick
James, on December 27, 1990 and continued to make contacts
through October 3, 1991, through various representatives
(Ex. 30-44).
Newman agreed with Stricklett that claimant had lost
access to 75 percent of the available jobs for nurses, but
like Stricklett he could identify selective jobs as a
registered nurse that claimant could perform within her
restrictions of sedentary work and no strenuous lifting or
repetitive bending (Ex. 28, Tran. pp. 137, 138 & 139).
Newman said claimant was earning $13.50 per hour prior to
Page 14
the injury and that the jobs available to her now paid
between $9 and $15 per hour (Ex. 28, Tran. p. 140).
Claimant testified that she earned roughly $13 to $13.50 per
hour (Tran., p. 26). Newman concluded "It's my opinion,
based on her work history, her experience and the type of
work that she could obtain through salvaging her career that
it's going, her industrial disability is going to hover
around ten percent." (Tran. p. 141).
Newman disagreed with Stricklett that claimant required
aggressive on-hands hard sell placement by accompanying the
prospective employee to see prospective employers and to
work out some starting arrangement. Newman testified that
this "... service is not a standard practice in our
profession." (Tran., p. 156). He said most prospective
employees do not want this service. He had never heard of
it before. He could only visualize it in the case of a
mentally retarded person or a person with a head injury or
some other cognitive problem that would prevent them from
speaking on their own behalf (Tran. 153 & 154).
Due to claimant's other liabilities in addition to the
aggravation of her degenerative disc disease she may well be
difficult to place because of her hypertension which is
corrected by medication, her insulin dependent diabetes, her
exogenous obesity and her emotional problems.
Newman further testified that a 75 percent loss of
access to the labor market could equal a tremendous loss of
earning power and in some cases it might not have much
impact at all. He estimated claimant's loss of earning
capacity at 10 percent (Tran. pp. 158 & 161). Newman
pointed out that claimant was not totally foreclosed from
practicing her profession of being a registered nurse. He
said she retains the ability from a qualification standpoint
to procure employment within her profession at a different
exertional level (Tran., p. 162).
Jodi Strehle began to work for Heartland Rehabilitation
in August of 1991. She conducted a job search for claimant
in the months of August, September and October of 1991.
Strehle testified that she contacted 311 employers and found
that 53 of them hired nurses in sedentary positions. She
forwarded these names to claimant or her attorney at the
request of the attorney. In follow-up telephone calls she
found that 21 of these prospective employers had received
resumes from claimant and 21 of these prospective employers
had not received resumes from claimant (Tran., pp. 110 &
111).
Strehle admitted on cross-examination that the
employers did not necessarily have jobs available for
claimant at that time nor were they hiring people at that
time, but rather these employers were simply those that did
in fact hire registered nurses for sedentary work (Tran.,
pp. 122 & 123). More than half the so called prospective
employers on Strehle's list either did not have a position
available or were not hiring at that time (Ex. 45).
Strehle testified that she is an injured employee
Page 15
herself with a work-related cervical disc injury. Her
employer, Methodist Hospital, continued her employment as a
utilization review nurse at the same rate of pay for two
years until she took this job with Heartland. On her own
personal job search she found 30 to 40 employers who would
hire a nurse for a sedentary position, she had seven or
eight interviews which resulted in four job opportunities
that were all sedentary in nature. She decided to take the
one with Heartland (Tran., pp. 115-117). Strehle admitted
that it was difficult for her to find a sedentary position
for a registered nurse when she made her job search (Tran.,
pp. 128 & 129).
Claimant's industrial disability is increased by the
fact that this injury occurred as she approached the peak
years of her earnings career. Claimant was 39 years old at
the time of the injury and 41 years old at the time of the
hearing (Tran., pp. 19 & 28). Becke v. Turner-Busch, Inc.,
Thirty-fourth Biennial Report of the Industrial Commissioner
34 (1979). Walton v. B & H Tank Corp., II Iowa Industrial
Commissioner Report 426 (1981). McCoy v. Donaldson Company,
Inc., file numbers 782670 & 805200 (App. Dec. 1989).
Claimant is capable of retraining or additional
training. She began nursing in 1972, as a nurse aid. She
started community college in 1983 and worked to become
qualified as a licensed practical nurse (LPN) by 1985. She
received her associate degree from community college and
passed the registered nurse licensing examination in 1988.
In addition, claimant has taken several courses toward the
goal of receiving a bachelor of science in nursing (BSN).
Thus, claimant is intelligent and is willing to study to
achieve her goals in order to be employable. Conrad v.
Marquette School, Inc., IV Iowa Industrial Commissioner
Report 74, 89 (1984).
Both Newman and Stricklett, however, testified that
there should be positions available in claimant's chosen
career field of nursing of a sedentary nature without the
necessity of engaging in additional formal education or
training. Stricklett acknowledged that finding sedentary
employment for a nurse is difficult. At the same time,
claimant has not exhibited a determined effort to find
employment. Newman accurately described her job search as
ineffective. Since claimant has not made a serious effort
to find and maintain employment it is difficult to assess
accurately the true amount of industrial disability which
she has sustained. Schofield v. Iowa Beef Processors, Inc.,
II Iowa Industrial Commissioner Report 334, 336 (1981).
When claimant returned to work on a temporary part-time
basis in March of 1991, her immediate supervisor, Susan
Lorkovic made accommodations for claimant according to
Jeanette Obal, Heartland's representative (Ex. 32, Ex. 33,
p. 2). According to Obal, Lorkovic reported on March 20,
1991, that claimant was tolerating her return to work well
(Ex. 35). Nevertheless, claimant subjectively determined
that she was unable to do the job and Dr. Kratochvil took
her back off work again on April 1, 1991, until he
determined that she had attained maximum medical
Page 16
improvement on June 27, 1991.
Newman correctly determined that claimant's inability
to work is subjective and self-imposed. Nevertheless,
Dobler determined that as a result of his physical capacity
assessment that claimant should be limited to sedentary
work. Furthermore, Dr. Kratochvil accepted claimant's
subjective and self-imposed limitations as true. He fully
subscribed, on several occasions, to the physical capacity
assessment that claimant should be limited to sedentary work
and avoid strenuous lifting and repetitive bending and that
these restrictions were caused by this injury. The question
of causal connection is essentially within the domain of
expert testimony. Bradshaw v. Iowa Methodist Hospital, 251
Iowa 375, 101 N.W.2d 167 (1960). It should also be noted at
this point that Dr. Kratochvil was the insurance carriers
choice of physician and that they removed claimant's care
from Dr. Fruin to Dr. Kratochvil in exercising their right
to chose the care pursuant to Iowa Code section 85.27.
After claimant was unable to resume clinical or general
nursing duties in April of 1991, employer refused to rehire
claimant unless she was released to return to work without
any restrictions. Claimant testified that she tried several
times to go back to work at Mercy Hospital but that they
were unwilling to accept her for employment that fell within
her restrictions. The evidence shows that employer does
have some sedentary jobs but none that have been available
to claimant. Employer in this case is a large corporation
which employs many nurses in many different types of jobs in
its work force. Under such circumstances, the refusal to
reemploy claimant or to find any work for her within her
restrictions is strong evidence of a severe lack of
employability. 2 Larson Workers' Compensation Law section
57.61. Claimant acknowledged that it was not only Mercy
Hospital but other hospitals did not want to hire her within
her restrictions (Tran., p. 80).
At the same time claimant's failure to make a serious
job search tends to reduce the amount of industrial
disability. An employee seeking workers' compensation would
do well to make a diligent attempt to find employment. Hild
v. Natkin & Co., I Iowa Industrial Commissioner Report 144
(Appeal Decision 1981). Tuberty v. Harold Dicky Transport,
Inc. file number 798936 (February 29, 1992). Beintema v.
Sioux City Engineering Co., II Iowa Industrial Commissioner
Report 24 (1981); Cory v. Northwestern States Portland
Cement Company, Thirty-third Biennial Report of the
Industrial Commissioner 104 (1976).
Employers are responsible for the reduction in earnings
capacity caused by the injury, they are not responsible for
a reduction in actual earnings because the employee resists
returning to work. Williams v. Firestone Tire and Rubber
Co., III Iowa Industrial Commissioner Report 279 (1982).
Claimant testified that she is limited to only driving
20 or 30 miles, however, Newman testified that there was no
medical evidence to support this self-imposed limitation of
claimant on her driving ability.
Page 17
Newman accused claimant of sabotaging her own job
search by using a cover letter on her resume which
emphasized the fact that she had a work-related injury, a 5
percent impairment and was still recovering from the injury.
Newman recanted when he learned that a commercial firm in
Council Bluffs had prepared this letter for claimant and
that she had not done so herself.
The hard fact is, however, that claimant is foreclosed
from what is described as clinical or general nursing duties
which is the most common type of employment available to
registered nurses. She is now restricted to selective,
hybrid types of a sedentary nursing developed only in recent
times and according to Newman are not even listed in The
Dictionary of Occupational Titles (Tran. p. 138). Strehle
testified that her employer found sedentary employment for
her of a temporary nature for two years at the same pay
until she decided to change jobs. This employer was unable
to perform the same accommodation for this claimant.
Strehle also acknowledged that she found it difficult to
find a sedentary job. Strehle also demonstrated more
diligent search for sedentary employment than claimant when
she wanted to find it.
Claimant sat for approximately four hours during the
hearing and did not demonstrate any back discomfort even
though she testified that she could only sit for
approximately 30 minutes. She did, however, testify that
this much sitting was difficult for her (Trans., p. 82).
Wherefore, based upon the following factors (1) that
claimant sustained an aggravation of her degenerative disc
disease by a sprain/strain to her lumbar spine, (2) that
claimant experienced a long and difficult period of
recovery, (3) that the treating physician, Dr. Kratochvil,
determined that claimant had sustained a 5 percent permanent
physical and functional impairment to the body as a whole,
(4) that Dr. Kratochvil determined that claimant was
restricted to sedentary employment for the indefinite future
and is restricted from strenuous lifting or repetitive
bending, (5) that claimant is approximately 40 years of age
and near the peak point in her earnings capacity, (6) that
claimant is retrainable but there should be no need for
retraining due to her already specialized training as a
nurse and her pursuit of courses to obtain a BSN in nursing,
(7) that employer initially attempted to accommodate the
injury but claimant insisted that she was not able to
perform the job due to her own subjective and self-imposed
limitations, (8) the employer then determined that claimant
should not return to work unless claimant had a full release
for clinical nursing duty and that employer was not able to
find sedentary work for claimant, (9) that claimant's
functional capacity assessment was only conditionally valid
and based upon subjective opinion, but nevertheless, Dobler,
the physical therapist, and Dr. Kratochvil, the treating
orthopedic surgeon, concurred that claimant was restricted
to performing only sedentary work for the indefinite future,
(10) that claimant usually weighs between 295 and 330 pounds
Page 18
and has suffered from exogenous obesity for several years,
(11) that claimant suffers from hypertension which is
regulated by medication and is also an insulin dependent
diabetic, (12) that claimant has experienced a number of
emotional problems both before and after this injury, (13)
that claimant did not actively and diligently search for
work of a sedentary nature after Dr. Kratochvil determined
that she had attained maximum medical improvement on June
27, 1991, (14) that claimant is foreclosed from
approximately 75 percent of the jobs available to registered
nurses, (15) based upon all the evidence of record in this
case, (16) based upon all the factors used to determine
industrial disability Christensen v. Hagen, Inc., vol. I,
no. 3, State of Iowa Industrial Commissioner Decisions 529
(App. Dec. March 26, 1985); and Peterson v. Truck Haven
Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial
Commissioner Decisions 654, 658 (App. Dec. February 28,
1985) and (17) applying agency expertise [Iowa
Administrative Procedure Act 17 A.14(5)] it is determined
that claimant has sustained a 30 percent industrial
disability to the body as a whole and is entitled to 150
weeks of permanent partial disability benefits.
credits
Defendants are entitled to a credit for any
compensation they paid to claimant when she returned to work
on a temporary basis part-time in March of 1991. However,
this credit will have to be worked out by the parties
between themselves for the reason that it was not designated
as an issue to be determined by this decision and there is
not sufficient evidence in the record at this time to make
that determination. The evidence is also insufficient to
calculate temporary partial disability benefits pursuant to
Iowa Code section 85.33(2) through 85.33(5).
medical
Claimant contended that the work hardening/physical
therapy facility in Council Bluffs had not been paid at the
time of the hearing (Tran., pp. 65-67). Exhibit 49 is an
itemized statement of mileage expense (Tran., pp. 65-67).
Medical is not one of the designated issues to be
determined by this decision. Moreover, it is noted on the
prehearing report signed by both parties that all requested
medical benefits have been or will be paid by defendants.
Therefore, defendants should keep this commitment.
penalty benefits
It is determined that claimant is entitled to 25 weeks
of penalty benefits at the rate of $178.55 per week which is
50 percent of her normal rate of compensation (50 percent of
357.10 = $178.55).
Iowa Code section 86.13 (4) provides for penalty
benefits up to 50 percent for the delay in commencement or
the termination of benefits without reasonable or probable
cause or excuse.
Page 19
Defendants knew in April of 1991 that claimant had a
very serious disability when employer, who employs numerous
nurses, had absolutely no employment for claimant within her
restrictions.
In this case Dobler, who was hired and paid by
defendant, determined that claimant could only perform
sedentary work on May 17, 1991 (Ex. 24).
On June 27, 1991, Dr. Kratochvil defendant's choice of
physician, determined that claimant had attained maximum
medical improvement and had sustained a 5 percent permanent
impairment of the whole person as a result of this injury
and was still incapable of returning to work (Ex. 8).
Stricklett, claimant's vocational rehabilitation witness,
testified that claimant was limited to sedentary work.
Newman and Strehle, defendants' vocational rehabilitation
witnesses, testified that claimant was limited to sedentary
employment. They learned that in May of 1991 from Dobler.
The reports of Obal and Johnson, defendant's vocational
rehabilitation specialists indicated that claimant was
limited to sedentary employment after June 5, 1991 (Ex. 38).
Thus, defendants knew that claimant not only had a 5
percent permanent physical and functional impairment rating
but also knew that claimant was greatly restricted from
returning to the general or clinical nursing labor market
and was restricted to the narrow, hybrid and specialized
limited fields of sedentary nursing ever since May 17, 1991.
The defendant insurance carrier either knew, or should have
known, as an ordinary reasonable and prudent workers'
compensation insurer that claimant would receive an award
greater than the 5 percent permanent physical/functional
impairment rating.
On October 15, 1991, Stricklett determined (1) that
claimant had a 75 percent loss of access to the employment
market, (2) had sustained a 20 to 25 percent loss of earning
capacity and required aggressive hands-on selective job
placement (Ex. 27). Newman testified at the hearing that he
agreed with Stricklett that claimant had lost 75 percent
access to the employment market as a registered nurse but he
indicated that her loss of earning capacity was 10 percent.
The testimony of Newman has been available to defendants as
Newman became a partner of Heartland on June 3, 1991 (Tran.,
p. 41). Thus, defendants not only did not pay a compromise
amount of industrial disability between the percentages of
Stricklett and Newman but did not even pay the bare minimum
10 percent assessed by their own professional witness,
Newman.
According to the arguments of defendants counsel they
felt they owned claimant approximately 30 weeks of healing
period benefits from October of 1990 to sometime in May 1991
and an additional 5 percent permanent partial disability
which would constitute another 25 weeks. This total is
approximately 55 weeks. The parties stipulated on the
prehearing report that defendants had paid claimant 53 weeks
of workers' compensation benefits at the rate of $357.10 per
Page 20
week prior to hearing. Therefore, it is obvious, that
defendants paid claimant no more than the 5 percent
permanent impairment rating, whereas at bare minimum, as an
ordinary reasonable and prudent workers' compensation
insurance carrier, it should have paid claimant on a basis
of a 10 percent industrial disability simply to protect
themselves from an award of penalty benefits, based on the
opinion of their own hired evaluator.
Furthermore, it could be argued persuasively that they
should have paid claimant even more than 10 percent when it
is considered that claimant was eventually awarded 30
percent.
Wherefore, it is determined that defendants cannot
conscientiously and justifiably state that there was a
legitimate dispute on either causation or the extent of
impairment of at least 10 percent on June 27, 1991. Juste
v. HyGrade Food Products Corp., IV Iowa Industrial
Commissioner Reports, 190 (App. Dec. 1984).
Likewise, and in more recent times it has been
determined that penalty benefits are not due where
defendants assert a claim that is fairly debatable. Seydel
v. University of Iowa Physical Plant, file number 818849
(App. Dec. 1989); Stanley v. Wilson Foods, file number
753405 (App. Dec. 1990); Heidt v. Lynn Photo Company, file
number 916737 (App. Dec. 1992); Place v. Giest Construction
Company, file numbers 931185, 891539 (1992); Shelton v.
McDonalds Hamburgers, file number 976855 (1992); Lloyd v.
Western Home, file number 890207 (App. Dec. 1991).
The fairly debatable standard which was announced in
the tort case of Dolan v. Aid Insurance Company, 431 N.W.2d
790 (Iowa 1989) appears to have been adopted for workers'
compensation cases in Dodd v. Oscar Mayer Foods Corp., file
number 724378 (1989); Throgmartin v. Precision Pulley Inc.,
file number 885869 (On Appeal) (1990); Collins v. Hawkeye
Moving & Storage, file number 873651 (1990).
Where the employer failed to pay permanent partial
disability in accordance with the rating of its own chosen
physician (the lowest rating in the record), the failure to
pay was determined to be unreasonable and a 50 percent
penalty was assessed. Stanley v. Wilson Foods Corp., file
number 753405 (1990). Likewise in this case, when claimant's
evaluator determines a 20 to 25 percent loss of earnings
capacity and defendants evaluator at hearing testifies to a
10 percent loss of earnings capacity it must be determined
that defendants unreasonably failed to pay at least an
additional 5 percent or 25 weeks of permanent partial
disability benefits.
Wherefore, it is determined that claimant is entitled
to 25 weeks of penalty benefits pursuant to Iowa Code
section 86.13(4) based upon a 50 percent penalty of the
stipulated rate of $357.10 in the amount of $178.55 ($357.10
x 50 % = $178.55) in the total amount of $4,463.75.
The Supreme Court of Iowa has recently stated that it
Page 21
is even interested in going beyond Iowa Code section
86.13(4) to punish employers who wrongfully deny needy
injured workers their rightful entitlement to workers'
compensation benefits. Boylan v. American Motors Insurance
Company, No. 250/91-1520, Iowa Supreme Court filed September
23, 1992.
conclusions of law
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
That claimant sustained an injury to the lumbar spine
of an aggravation of her preexisting degenerative disc
disease caused by a sprain/strain that occurred at work on
October 17, 1990, when she attempted to rescue a patient
from falling out of bed. Iowa Code section 85.3(1).
McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976);
Musselman v. Central Telephone Co., 261 Iowa 352, 154
N.W.2d 128 (1967).
That the injury was the cause of both temporary and
permanent disability based upon the clear and unequivocal
testimony of claimant's primary treating orthopedic surgeon
which was selected by employer and insurance carrier.
Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867
(1965). Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d
607 (1945).
That claimant is entitled to a total of 45.429 weeks of
healing period benefits based upon two separate periods of
healing (1) October 19, 1990 through June 27, 1991, which is
36 weeks and (2) March 4, 1992 through May 8, 1992, which is
9.429 weeks. These two periods total 45.429 weeks of
healing period benefits. Iowa Code section 85.34(1).
That claimant has sustained a 30 percent industrial
disability to the body as a whole and is entitled to 150
weeks of permanent partial disability benefits. Iowa Code
section 85.34(2)(u).
That claimant is entitled to penalty benefits for 25
weeks at the rate of $178.55 in the total amount of
$4,463.75. Iowa Code section 86.13(4).
order
THEREFORE IT IS ORDERED:
That defendants pay to claimant forty-five point four
two nine (45.429) weeks of healing period benefits at the
rate of three hundred fifty-seven and 10/100 dollars
($357.10) per week in the total amount of sixteen thousand
two hundred twenty-two and 70/100 dollars ($16,222.70)
commencing on October 19, 1990, but interrupted for the
period between June 28, 1991 and March 4, 1992 when claimant
is entitled to permanent partial disability benefits because
claimant had attained maximum medical improvement and failed
to demonstrate any improvement during that period of time
but commencing again on March 4, 1992 through May 8, 1992
Page 22
[as stipulated to by the parties (Tran., p. 15)] when
claimant participated in physical therapy/work hardening and
there is evidence that her condition improved again. Iowa
Code section 85.34(1).
That defendants pay to claimant one hundred and fifty
(150) weeks of permanent partial disability benefits at the
rate of three hundred fifty-seven and 10/100 dollars
($357.10) per week in the total amount of fifty-three
thousand five hundred sixty-five dollars ($53,565)
commencing on June 28, 1991 but interrupted by the period
that claimant received additional healing period benefits
between March 4, 1992 and May 8, 1992.
That defendants are entitled to a credit for
fifty-three (53) weeks of workers' compensation benefits
paid to claimant prior to hearing in the amount of three
hundred fifty-seven and 10/100 dollars ($357.10) per week in
the total amount of eighteen thousand nine hundred
twenty-six and 30/100 dollars ($18,926.30) as stipulated to
by the parties in the prehearing report.
Defendants are also entitled to a credit for wages
earned during the period of temporary part-time trial return
to work in March of 1991.
That although medical benefits were not an issue to be
determined by this decision claimant has asserted a claim
for the work hardening/physical therapy and mileage to and
from that training and the parties specified in the
prehearing report that defendants either had paid or would
pay all requested medical benefits. These items therefore
should be paid by defendants.
That interest will accrue pursuant to Iowa Code section
85.30 on unpaid weekly benefits.
That all accrued benefits are to be paid in a lump sum.
That defendants pay claimant twenty-five (25) weeks of
penalty benefits in the amount of one hundred seventy-eight
and 55/100 dollars ($178.55) per week based upon a 50
percent (50%) penalty in the total amount of four thousand
four hundred sixty-three and 75/00 dollars ($4,463.75).
Interest will not accrue on medical benefits or penalty
benefits. Klein v. Furnace Electric Company, 384 N.W.2d 370
(Iowa 1986), until after the date of this decision.
That the costs of this action are charged to defendants
pursuant to Iowa Code sections 86.19(1) 86.40 and rule 343
IAC 4.33. That claimant is specifically entitled to the
filing fee in the amount of sixty-five dollars ($65) and the
report of Dr. Fernandez in the amount of one hundred
twenty-five dollars ($125) as shown on Exhibit 50. The
actual payment of these costs was not disputed at paragraph
D on the prehearing report.
That defendants file claim activity reports as
requested by this agency pursuant to rule 343 IAC 3.1.
Page 23
That defendants file all delinquent forms 2, 2A and 2B
which were not filed with this agency prior to hearing
pursuant to rule 343 IAC 3.1(2) through (4), within thirty
(30) days of the signing and filing of this decision.
Signed and filed this ____ day of January, 1993.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Jacob J. Peters
Attorney at Law
233 Pearl Street
P.O. Box 1078
Council Bluffs, IA 51502-1078
Mr. Melvin Hansen
Richard D. Crotty
Attorneys at Law
800 Exchange Building
1905 Harney Street
Omaha, NE 68102
Page 1
51106, 51108.50, 51401, 51402.20,
51404.30
1802, 1803, 1807, 2700
4000.2
Filed January , 1993
Walter R. McManus, Jr.
before the iowa industrial commissioner
____________________________________________________________
:
SUSAN BLODGETT, :
:
Claimant, :
:
vs. :
: File No. 965009
CATHOLIC HEALTH CORPORATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
RELIANCE NATIONAL INSURANCE :
COMPANY, Represented by :
:
SEDGEWICK JAMES, Administrator:
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
51106, 51108.50, 51401, 51402.20, 51402.30
All of the evidence, medical and non-medical, established
injury. Nothing contradicted claimant's account of the
injury.
1802, 2700 (reasonable refusal of medical care)
The treating orthopedic physician established causal
connection. His testimony was not controverted, but rather
was compatible with other physicians who treated claimant.
Claimant awarded healing period from time she first missed
work until the treating physician said she attained maximum
medical improvement, even though he also said she was not
able to work after that point and remained under his care.
He determined she had attained maximum medical improvement
because she resisted the treating modalities that he
suggested of a caudal block, myelogram, MMPI and pain
management center.
Claimant's refusal of these modalities was not unreasonable
so as to terminate weekly benefits, but did give the
physician good cause for stating that in his opinion she had
attained maximum medical improvement.
Claimant awarded a second period of healing when she agreed
to participate and the treating physician ordered additional
Page 2
physical therapy/work hardening. The doctor said this
improved her condition.
1803, 1807
Claimant, age 39, registered nurse, sustained a five percent
physical/functional impairment, but was foreclosed from
clinical/general duty nursing and was restricted to
sedentary nursing. Employer could find nothing for her to
do. Claimant's work search was very ineffective. Claimant
awarded 30 percent industrial disability.
4000.2
Claimant awarded 50 percent penalty benefits. Defendants
knew at the end of healing period that claimant was
foreclosed from general duty nursing and was limited to
sedentary nursing. Employer had no work she could do. The
physical capacity assessment ordered by defendant limited
her to sedentary work even before the end of healing period.
Defendants' vocational rehabilitation persons all knew
claimant was restricted to sedentary work.
Both claimant and defendants' vocational rehabilitation
consultants agreed that claimant had lost access to 75
percent of the labor market for registered nurses.
Claimants evaluator said she had a 20 percent to 25 percent
loss of earnings capacity. Defendants' own evaluator said
claimant had a loss of 10 percent of earning capacity. Yet,
defendants only paid claimant 5 percent industrial
disability apparently based on the physical impairment
rating.
It was determined that the ordinary, reasonable and prudent
insurance carrier handling workers' compensation claims
either knew or should have known that claimant would have
been awarded a bare minimum of 10 percent industrial
disability and probably more. Defendants penalized for
another 5 percent or 25 weeks of penalty benefits.
It was held that defendants' did not have a legitimate
dispute as to the causation or extent of impairment (Juste
v. Hygrade) nor was it fairly debatable that claimant was
entitled to much more than a payment of 5 percent (Seydel v.
University of Iowa). Defendants failed to pay the
evaluation of their own evaluator, save consider a
compromise between claimant's and defendants' evaluators.
It was pointed out that the Supreme Court of Iowa has opened
new remedies against defendants who wrongfully deny injured
workers their rightful entitlement to workers' compensation
benefits. Boylan v. American Motors Insurance Company.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
DEANA WILLIAMS, :
:
Claimant, :
:
vs. :
: File Nos. 965106 &
: 938333
DEPARTMENT OF NATURAL RESOURCES,:
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition
of claimant, Deanna Williams, against her employer,
Department of Natural Resources and the State of Iowa,
defendant. The case was heard on October 31, 1991, in Des
Moines, Iowa at the office of the Industrial Commissioner.
The record consists of the testimony of claimant. The
record also consists of the testimony of Irene Ray,
claimant's supervisor. Additionally, the record consists of
claimant's exhibits 1 and 2 and defendant's exhibits A
through E.
issues
The issues to be determined are: 1) whether claimant
sustained an injury on September 14, 1990, which arose out
of and in the course of her employment; 2) whether the
injury of September 14, 1990, is a cause of temporary or
permanent disability; 3) whether the injury of December 26,
1989, is a cause of permanent disability; 4) whether
claimant is entitled to medical benefits pursuant to section
85.27; and, 5) whether claimant is entitled to penalty
benefits pursuant to section 86.13(4).
findings of fact
The deputy, having heard the testimony and considered
all the evidence, finds:
Claimant is 32 years old. She commenced her employment
on June 20, 1989. Claimant was hired as a Clerk 3 with the
Department of Natural Resources. Because of the governor's
lay-off program, claimant was terminated on August 9, 1991.
Page 2
Since that date claimant has been receiving unemployment
compensation.
Claimant's duties were varied while she was employed at
the Department of Natural Resources. She filed documents,
prepared microfilm, answered the phone, serviced the public
at a counter, moved and stacked file boxes, did some typing,
mailed rule requests, sorted files and organized documents.
On December 26, 1989, a file divider weighing
approximately five pounds fell diagonally across claimant's
right wrist. Claimant was taken to the emergency room at
Des Moines General Hospital for medical attention. A splint
and medications were prescribed for claimant. Claimant
continued to experience pain. Eventually claimant received
a stellate ganglion block for reflex sympathetic dystrophy
of the right arm secondary to trauma. (Exhibit B, page 6)
A second and a third stellate ganglion block were performed
several days later. Claimant participated in physical
therapy as well as occupational therapy per Mark B.
Kirkwood, D.O. Dr. Kirkland diagnosed claimant as having
neuroproxia/contusion of the right median nerve.
Claimant returned to work on February 15, 1990, for
half days. After a period of time claimant returned to her
full time duties. In his office notes of March 12, 1990,
Dr. Kirkland wrote:
Deanna [sic] returns today and she really has
no complaints. She states occasionally her
forearm will burn on her but most likely she feels
this is secondary to weakness. She has been
working her normal job without any restrictions.
On physical examination today there is no
temperature change compared to the contra-lateral
hand and forearm. She has good grip strength
bilaterally. She has full range of motion of her
right wrist.
At this time I do not need to see Deanna [sic]
back unless she has problems. I feel fortunate we
were able to correct this malady on time. If she
has any problems, she should return to see us.
(Ex. E, p. 32)
Claimant had no problems with her right wrist for a
period of time. She returned to her full time duties which
were basically the same duties which she had before December
26, 1989.
After her return to work, claimant again experienced
difficulties with her arm and neck. She sought chiropractic
care from Daniel J. Hannan, D.C. Dr. Hannan diagnosed
claimant's condition as "cervical thoracic strain that is
aggravated by physical or emotional stress."
Dr. Hannan, after attempting treatment, referred
claimant to Dr. Kirkland. On October 10, 1990, claimant saw
Dr. Kirkland. He wrote in his office notes for that day:
Page 3
Deana returns today complaining of a numbness,
tingling feeling in the volar radial aspect of her
right upper extremity and it is mainly the
forearm. She states when she touches this area it
does give her tingling and it goes into the thumb.
She has recently been seen by a chiropractor and
has been followed almost daily. She wanted to
come back here because she knew that I had
experienced what was wrong with her in the past.
On physical exam her right hand is somewhat
colder than the left, but this is not like it was
before. She does not have alot [sic] of pain to
palpation of her right upper extremity. With
rubbing her volar radial aspect this does give her
numbness and tingling. There is no numbness and
tingling with palpating the dorsal radial aspect
where the sensory branch of the radial nerve is.
She has a negative tinels [sic] at the wrist. She
does have general uncomfortableness with moving
her right elbow, but no specific complaints. Her
range of motion in her right wrist is full.
Impression: Tendonitis/overuse syndrome of the
right forearm....
(Ex. l, p. 34)
Claimant's condition did not improve. As a result
surgery was performed on November 20, 1990. A carpal tunnel
release on the right wrist was performed. Dr. Kirkland, in
his surgical notes, wrote:
Findings: The patient did have narrowing of the
median nerve as it passed deep to the transverse
carpal ligament. There was some moderate
hypertrophy of the teno synovium.
As of January 8, 1991, claimant was released to return
to work. Dr. Kirkland imposed the following restrictions:
At this time, however, I feel that she is doing
well enough that we could send her back to work.
We will allow her to return to work tomorrow. She
will have a twenty-five-pound lifting limitation
at this time. This will be for a period of two
weeks. After two weeks, she is allowed to
progress to her full duty. If she has any
problems, she is to return to see me.
(Ex l, p. 37)
Dr. Kirkland, on February 21, 1991, opined the
following relative to claimant's condition:
I last saw Ms. Deana Williams on January 07, 1991.
I will now answer your questions in the same order
you asked them of me.
1) I do agree that Ms. Williams' carpal tunnel
syndrome was caused by her employment secondary to
her repetitive use of her hands and fingers. She
Page 4
does work in the Department of Natural Resources.
2) I do feel that she does have four (4%) percent
permanent partial impairment to her right hand.
3) As far as future restrictions placed on Ms.
Williams' activities to prevent risk of re-injury,
these should avoid repetitive type of motions,
repetitive heavuy [sic] lifting, and pulling.
If you have any other specific questions, please
feel free to contact me.
(Ex. l, p. 28)
Claimant returned to the same duties she had previous
to her surgery. In August of 1991, claimant was terminated
due to the governor's mandatory lay-off. As of the date of
the hearing, claimant was not employed.
conclusions of law
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 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. 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, 417 (Iowa 1986);
McClure v. Union, et al., Counties, 188 N.W.2d 283, 287
(Iowa 1971).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296,
297 (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 5
A personal injury contemplated by the workers'
compensation law means an injury, the impairment of health
or a disease resulting from an injury which comes about, not
through the natural building up and tearing down of the
human body, but because of trauma. The injury must be
something which acts extraneously to the natural processes
of nature and thereby impairs the health, interrupts or
otherwise destroys or damages a part or all of the body.
g's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v.
Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v.
Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
With respect to file number 938333, claimant has not
proven that she has sustained a permanent partial disability
to her right hand as a result of her injury on December 26,
1989. Claimant was released to return to work on February
15, 1990, with temporary restrictions for two weeks. After
the two week period, claimant was released to full duty with
no restrictions whatsoever.
Dr. Kirkland opined that after claimant had returned to
full duty, she had full range of motion of the right wrist.
Claimant also had good grip strength, with no complaints,
and no temperature changes in her wrist. Dr. Kirkland
provided a full release. Claimant sustained no permanent
partial disability.
Claimant did sustain a temporary total disability with
respect to file number 938333. Pursuant to section 85.33,
claimant was temporarily and totally disabled from December
Page 6
26, 1989 through February 15, 1990. Claimant was entitled
to 7.429 weeks of benefits at the stipulated rate of $181.76
per week.
With respect to file number 965106, claimant has proven
by a preponderance of the evidence that she has sustained an
injury which arose out of and in the course of her
employment. Claimant performed various activities once she
returned to work on February 15, 1990. All of the various
activities required the use of claimant's right hand and
wrist. For example, claimant was required to type, she was
required to pull staples from papers, to flip pages, carry
and lift boxes and lift pieces of equipment. All of the
activities were repetitive in nature. Claimant's treating
neurosurgeon related claimant's hand condition to her
activities at work. Dr. Kirkland's opinion is accorded much
weight. He had been treating claimant's condition and had
ample time to observe claimant. Dr. Kirkland is an
orthopedic surgeon. His expertise is recognized. Claimant
has sustained her burden of proof. She has sustained an
injury which arose out of and in the course of her
employment.
Claimant has proven that she has sustained a permanent
partial disability. Again, the opinion of Dr. Kirkland is
given greater weight. He opined that claimant had a four
percent impairment to her right hand. The parties
stipulated that if defendant was held liable, then claimant
was entitled to six weeks of permanent partial disability
benefits to the right hand at the stipulated rate of $189.97
per week. It is determined that claimant is entitled to the
same.
The next issue to determine is the extent of healing
period benefits to which claimant is entitled. Section
85.34(1) provides that healing period benefits are payable
to an injured worker who has suffered permanent partial
disability until (1) the worker has returned to work; (2)
the worker is medically capable of returning to
substantially similar employment; or (3) the worker has
achieved maximum medical recovery. The healing period can
be considered the period during which there is a reasonable
expectation of improvement of the disabling condition. See
Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa
App. 1981). Healing period benefits can be interrupted or
intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
In the case at hand, claimant was off work because of
her work injury from September 17, 1990 to January 7, 1991.
As of January 8, 1991, claimant was released to return to
work with restrictions. Claimant is entitled to 16.143
weeks of healing period benefits at the stipulated rate of
$189.97.
The next issue to determine is whether claimant is
entitled to medical benefits pursuant to section 85.27. 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'
Page 7
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 decision 1975). Claimant has the
burden of proving that the fees charged for such services
are reasonable. Anderson v. High Rise Constr. Specialists,
Inc., file number 850096 (Appeal Decision 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 App. 1983).
In this case, defendant denied claimant's claim.
Therefore, defendant did not have the right to select
claimant's medical care. Defendant is liable for:
Mark Kirkland, D.O. $ 970.00
Steven Adelman, D.O. 330.00
Des Moines Bone & Joint 90.00
Surgery Center of Des Moines 835.00
M. S. Igbal 170.00
Total $2,395.00
Defendant is not liable for the charges of Daniel J.
Hannan, D.C. His medical charges relate to cervical strain,
headaches, muscle spasms, thoracic strain that is aggravated
by physical or emotional stress and brachial plexus
entrapment of the right upper extremity. There does not
appear to be treatment rendered for carpal tunnel syndrome.
His charges are not causally related to claimant's carpal
tunnel syndrome.
The final issue to address is whether claimant is
entitled to penalty benefits pursuant to section 86.13.
Section 86.13 permits an award of up to 50 percent of the
amount of benefits delayed or denied if a delay in
commencement or termination of benefits occurs without
reasonable or probable cause or excuse. The standard for
evaluating the reasonableness of defendants' delay in
commencement or termination is whether the claim is fairly
debatable. Where a claim is shown to be fairly debatable,
defendants do not act unreasonable in denying payment. See
Stanley v. Wilson Foods Corp., file number 753405 (Appeal
Decision, August 23, 1990); Seydel v. Univ. of Iowa Physical
Plant, file number 818849 (Appeal Decision, November 1,
1989).
In this instance, claimant is not entitled to penalty
benefits pursuant to section 86.13. At the time of
claimant's second injury, she reported to her supervisors
that she had problems with her back and neck. At that point
in time, it was reasonable for the supervisors to take
claimant at her word. There was no reason for the
supervisors to believe the injury was work related. The
supervisors acted reasonably in denying the claim.
Therefore, claimant is not entitled to benefits under the
Page 8
final paragraph of section 86.13.
order
THEREFORE, IT IS ORDERED:
Defendant is to pay unto claimant seven point
four-two-nine (7.429) weeks of temporary total disability
benefits for file number 938333 at the stipulated rate of
one hundred eighty-one and 76/l00 dollars ($181.76)
commencing on December 26, 1989.
Defendant is to pay unto claimant six weeks of
permanent partial disability benefits for file number 965106
at the stipulated rate of one hundred eighty-nine and 97/l00
dollars ($189.97) commencing on January 8, 1991.
Defendant is to also pay unto claimant sixteen point
one-four-three (16.143) weeks of healing period benefits for
file number 965106 which represents the period from
September 17, 1990 through January 7, 1991, at the
stipulated rate of one hundred eighty-nine and 97/l00
dollars ($189.97).
Defendant is also liable for two thousand three hundred
ninety-five and no/l00 dollars ($2,395.00) in medical
expenses pursuant to section 85.27, Iowa Code.
Accrued benefits are to be paid in a lump sum together
with statutory interest at the rate of ten percent (10%) per
year pursuant to section 85.30, Iowa Code, as amended.
Defendant shall take credit for benefits previously
paid claimant.
Costs are taxed to defendant pursuant to rule 343 IAC
4.33.
Defendant shall file a claim activity report as
requested by this division pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of November, 1991.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Harry W. Dahl, III
Attorney at Law
974 73rd St
Suite 16
Des Moines IA 50312
Page 9
Ms. Joanne Moeller
Assistant Attorney General
Tort Claims Division
Des Moines IA 50319
5-1800; 1801; 1802; 1803.1
Filed November 25, 1991
MICHELLE A. McGOVERN
before the iowa industrial commissioner
____________________________________________________________
:
DEANA WILLIAMS, :
:
Claimant, :
:
vs. :
: File Nos. 965106 &
: 938333
DEPARTMENT OF NATURAL RESOURCES,:
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendant. :
___________________________________________________________
5-1800; 1801; 1802; 1803.1
Claimant was entitled to healing period benefits, four
percent permanent partial disability benefits, and temporary
total disability benefits for two injuries to claimant's
right hand.