BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
ELIZABETH DEMARTELAERE,
Claimant,
vs.
File No. 966344
ALUMINUM COMPANY OF AMERICA,
A P P E A L
Employer,
Self-Insured,
D E C I S I O N
and
SECOND INJURY FUND OF IOWA,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
December 7, 1992 is adopted as the final agency action in this
case with the following additional analysis:
The credit for an employer under Iowa Code section 85.38(2) is
the net amount which the employee receives after payment of all
applicable taxes. Beller v. Iowa State Penitentiary, Appeal
Decision, July 10, 1991.
The Second Injury Fund's disqualification issue on appeal is
without merit. The transcript of the hearing reveals no
indication of personal bias on the part of the deputy industrial
commissioner toward any party. The arbitration decision itself
determined in favor of the Fund that the claimant was not
entitled to Fund benefits. The ruling on the motion for
disqualification is reaffirmed.
Claimant, defendant and Second Injury Fund shall share equally
the costs of the appeal, including the preparation of the hearing
transcript.
Signed and filed this ____ day of October, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Michael W. Liebbe
Attorney at Law
Page 2
P.O. Box 339
Davenport, Iowa 52805
Mr. Thomas N. Kamp
Attorney at Law
600 Davenport Bank Bldg.
Davenport, Iowa 52801
Mr. Robert D. Wilson
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg.
Des Moines, Iowa 50319
5-1803
Filed October 28, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ELIZABETH DEMARTELAERE,
Claimant,
vs.
File No. 966344
ALUMINUM COMPANY OF AMERICA,
A P P E A L
Employer,
Self-Insured,
D E C I S I O N
and
SECOND INJURY FUND OF IOWA,
Defendants.
____________________________________________________________
5-1803
Non-precedential, extent of disability case.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
ELIZABETH DEMARTELAERE, :
:
Claimant, :
:
vs. :
: File No. 966344
ALUMINUM COMPANY OF AMERICA, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by
Elizabeth Demartelaere, claimant, against Aluminum Company
of America, employer, hereinafter referred to as Alcoa, and
the Second Injury Fund, defendants, for workers' compensa
tion benefits as a result of an alleged injury on April 23,
1990. On September 18, 1992, a hearing was held on
claimant's petition and the matter was considered fully sub
mitted at the close of this hearing.
The parties have submitted a prehearing report of con
tested issues and stipulations which was approved and
accepted as a part of the record of this case at the time of
hearing. The oral testimony and written exhibits received
during the hearing are set forth in the hearing transcript.
According to the prehearing report, the parties have
stipulated to the following matters:
1. An employee-employer relationship existed between
claimant and Alcoa at the time of the alleged injury.
2. Claimant is seeking temporary total or healing
period benefits for four separate periods of time as set
forth in the prehearing report and defendants agree that she
was not working during these periods of time.
3. If permanent partial disability benefits are
awarded, they shall begin as of April 15, 1991.
4. At the time of injury claimant's gross rate of
weekly compensation was $511.23; she was married; and she
was entitled to five exemptions. Therefore, claimant's
weekly rate of compensation is $328.82 according to the
Industrial Commissioner's published rate booklet for this
alleged injury.
Page 2
5. It was stipulated that the providers of the
requested medical expenses would testify as to the reason
ableness of their fees and defendants are not offering con
trary evidence. It was also agreed that the medical bills
submitted by claimant at the hearing are causally connected
to the medical condition upon which the claim herein is
based but that the issue of their causal connection to any
work injury remains an issue to be decided herein.
ISSUES
The parties submitted the following issues for determi
nation in this proceeding:
I. Whether claimant received an injury arising out
of and in the course of employment;
II. The extent of claimant's entitlement to disability
benefits.
III. The extent of claimant's entitlement to medical
benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
A credibility finding is necessary to this decision as
defendants placed claimant's credibility at issue during
cross-examination as to the nature and extent of the injury
and disability. From her demeanor while testifying,
claimant is found credible.
Claimant has worked for Alcoa since February 1980 and
continues to do so at the present time. Although all of her
jobs involved manual labor, claimant's specific job assign
ments have varied over the years. At the time of the onset
of alleged injury herein, claimant was assigned to mopping
ingots of aluminum. This required using a hand mop.
Claimant explained that it took a lot of pushing on her arms
and shoulders to clean the ingots and remove the solvent.
Claimant's job also involved picking up scrap and throwing
spacers that were located between ingots. Occasionally she
Page 3
was asked to operate an overhead crane requiring repetitive
use of her thumb and fingers and to operate a fork lift
truck.
On or about April 26, 1990, claimant began to experi
ence pain and swelling in her wrists while working in her
job at Alcoa. This was initially diagnosed as a
sprain/strain. Duane L. Manlove, D.O., treated claimant
over the next few months under a diagnosis of tendonitis.
She was later treated by an internist and specialist in
rheumatology, D. Bruce Faber, D.O. His initial diagnosis
was tendonitis of the right wrist and polyarthritis of the
left. Claimant was also treated by A. D'Angelo, D.O., an
orthopedist who performed two release surgeries in January
and March 1991 upon a diagnosis of carpal tunnel syndrome.
These surgeries improved numbness in the wrists but the
chronic swelling persisted. Since the initial symptoms in
her wrists, claimant has now developed chronic pain and
swelling in both of her arms and shoulders. Finally, Dr.
Faber changed his diagnosis to rheumatoid arthritis. The
doctor states that this diagnosis could not be made before
that time. The majority of the physicians in this case
believe that the carpal tunnel syndrome was a part of this
ongoing rheumatoid arthritic disease process.
There was no consensus or preponderance of medical
opinion as to what, if anything, precipitated or caused
claimant's rheumatoid arthritis condition. Dr. Faber
believes that although there is no known cause of rheumatoid
arthritis, claimant's repetitive work at Alcoa
"precipitated" the condition and this condition has spread
like cancer throughout claimant's body. The work related
ness of the condition is also the view of Dr. Manlove, a
family physician. The work-relatedness or precipitating
cause theory of Dr. Fabar is not supported by M. Paul
Strottmann, M.D., a professor of rheumatology at the Univer
sity of Iowa Hospitals and Clinics. The lack of a known
cause for claimant's arthritis was the view of Alcoa's medi
cal director, Forrest Smith, M.D. Given such a divergence
in opinion, it could not be found that the rheumatoid
arthritis was caused or precipitated by claimant's work.
However, the greater weight of the evidence shows that
claimant indeed did suffer symptoms at work. Given this
evidence, the medical opinions in this record support a
finding that claimant's symptoms were at least injuries in
the form of temporary aggravations of the rheumatoid
arthritic condition, whether or not the underlying arthritic
condition was itself work-related. These aggravation
injuries resulted in the need for treatment in the form of
absences from work and other treatment modalities. Given
the four absences from work, under the cumulative trauma
theory, there are four separate injury dates, not the one
alleged, each representing a time when pain compelled the
absence from work, namely April 26, 1990, August 2, 1990,
November 5, 1990 and January 19, 1991. It is found that
each injury was a cause of the temporary absence from work
Page 4
as listed in the prehearing report and all of the treatment
claimant has received following the initial April 26, 1990
injury.
The evidence pertaining to claimant's volleyball hand
injuries and her auto accident did not appear to impact upon
the finding of temporary aggravation injuries. The fact
that she was off work for other reasons does not controvert
being off for worked-related causes.
As the injuries found above were only temporary aggra
vations of the rheumatoid arthritis, they did not cause per
manent impairment. Certainly, the rheumatoid arthritis is
permanent and results in serious disability but as explained
above, this condition could not be found work-related.
Claimant has work restrictions against working more
than 40 hours per week; against performing reeling work and
throwing spacers more than 20 hours a week. These restric
tions are the basis of the claim herein for loss of earning
capacity. These restrictions were imposed by Dr. Fabar due
to the arthritic condition which was not found work-related.
Consequently, the restrictions could not be found
work-related. Consequently, claimant has not shown that any
of her work injuries are a cause of permanent disability.
It is found that the treatments set forth in the
requested medical expenses are work-related. Certainly,
treatment rendered by a licensed physician, absent contrary
evidence, should be found reasonable.
CONCLUSIONS OF LAW
I. Claimant has the burden of proving by a prepon
derance of the evidence that claimant received an injury
arising out of and in the course of employment. The words
"out of" refer to the cause or source of the injury. The
words "in the course of" refer to the time and place and
circumstances of the injury. See generally, Cedar Rapids
Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v.
DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63
(1955). An employer takes an employee subject to any
active or dormant health impairments. A work connected
injury which more than slightly aggravates the condition is
considered to be a personal injury. Ziegler v. U.S. Gypsum,
252 Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited
therein.
It is not necessary that claimant prove his disability
results from a sudden unexpected traumatic event. It is
sufficient to show that the disability developed gradually
or progressively from work activity over a period of time.
McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa
1985). The McKeever Court also held that the date of injury
in gradual injury cases is the time when pain prevents the
employee from continuing to work. In McKeever the injury
date coincided with the time claimant was finally compelled
to give up his job. This date was then used by the Court to
determine rate and the timeliness of claimant's claim under
Iowa Code section 85.26 and notice under Iowa Code section
Page 5
85.23.
In the case sub judice, three additional injury dates
were selected in addition to the one alleged in the petition
under the McKeever doctrine. This deputy commissioner may
choose an injury date in cumulative trauma cases different
that the those alleged in the petition. McCoy v. Donaldson
Company, Inc., Case No 752670, Appeal Decision Filed April
28, 1989. Such a finding does not prejudice any of the
defendants as the underlying facts are unchanged and issues
such as rate or untimeliness of the claim are not at issue.
II. Although claimant failed to establish that any of
her injuries at Alcoa resulted in permanent disability,
claimant did suffer injuries resulting in temporary absences
from work to recover from her injuries and is entitled to
temporary total disability benefits under Iowa Code section
85.33(1) for those absences as delineated in the prehearing
report. Such benefits will be awarded accordingly.
III. Pursuant to Iowa Code section 85.27, claimant is
entitled to payment of reasonable medical expenses incurred
for treatment of a work injury. Claimant is entitled to an
order of reimbursement if he/she has paid those expenses.
Otherwise, claimant is entitled only to an order directing
the responsible defendants to make such payments directly to
the provider. See Krohn v. State, 420 N.W.2d 463 (Iowa
1988).
In the case at bar, all of the requested expenses were
found to be reasonable treatment and caused by a work
injury. Therefore, they are compensable and will be
awarded.
IV. To invoke Second Injury Fund liability, the
injuries relied upon must cause permanent disability. No
injury in this case was found to cause permanent partial
disability. Therefore, there is no Fund liability.
ORDER
1. Defendant Alcoa shall pay to claimant temporary
total disability benefits from April 27, 1990 through May
12, 1990; from August 3, 1990 through October 1, 1990; from
November 6, 1990 through November 17, 1990 and from January
20, 1991 through April 14, 1991, at the rate of three
hundred twenty-eight and 82/l00 dollars ($328.82) per week.
2. Defendant Alcoa shall pay the medical expenses
listed in the prehearing report. Claimant shall be reim
bursed for any of these expenses paid by him. Otherwise,
defendants shall pay the provider directly along with any
lawful late payment penalties imposed upon the account by
the provider.
3. Defendant Alcoa shall pay accrued weekly benefits
in a lump sum and shall receive credit against this award
for all benefits previously paid.
4. Defendant Alcoa shall receive credit for previous
Page 6
payments of benefits under a non-occupational group insur
ance plan, if applicable and appropriate under Iowa Code
section 85.38(2), less any tax deductions from those pay
ments.
5. Defendant Alcoa shall pay interest on weekly bene
fits awarded herein as set forth in Iowa Code section 85.30.
6. Defendant Alcoa shall pay the costs of this action
pursuant to Rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
7. Defendant Alcoa shall file activity reports on the
payment of this award as requested by this agency pursuant
to Rule 343 IAC 3.1.
8. The claim against the defendant, Second Injury
Fund, is dismissed with prejudice.
Signed and filed this ____ day of December, 1992.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Michael W. Liebbe
Attorney at Law
P O Box 339
Davenport, Iowa 52805-0339
Page 7
Mr. Thomas N. Kamp
Attorney at Law
600 Davenport Bank Bldg.
Davenport, Iowa 52801
Mr. Robert D. Wilson
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg.
Des Moines, Iowa 50319
5-1803
Filed December 7, 1992
LARRY P. WALSHIRE
before the iowa industrial commissioner
____________________________________________________________
:
ELIZABETH DEMARTELAERE, :
:
Claimant, :
:
vs. :
: File No. 966344
ALUMINUM COMPANY OF AMERICA, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
___________________________________________________________
5-1803
Non-precedential, extent of disability case.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
EUGENE I. STONEKING, :
:
Claimant, :
:
vs. :
: File No. 966348
WESTSIDE ERECTORS, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
THE TRAVELERS COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Eugene
Stoneking, claimant, against Westside Erectors, employer,
and the Travelers, insurance carrier, defendants, for
workers' compensation benefits as a result of an alleged
injury on December 28, 1988. On January 28, 1992, a hearing
was held on claimant's petition and the matter was consid
ered fully submitted at the close of this hearing.
issues
According to the hearing assignment order, the follow
ing issues were to be heard:
I. Whether claimant received an injury arising out
of and in the course of employment;
II. The extent of claimant's entitlement to disabil
ity benefits; and,
III. The extent of claimant's entitlement to medical
benefits.
findings of fact
Upon opening the hearing, no one appeared and conse
quently there was no evidence offered. Therefore, no find
ings of fact could be made.
Page 2
conclusions of law
Claimant has the burden of proving by a preponderance
of the evidence that claimant received an injury which arose
out of and in the course of employment. The words "out of"
refer to the cause or source of the injury. The words "in
the course of" refer to the time and place and circumstances
of the injury. See Cedar Rapids Community Sch. v. Cady, 278
N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist.,
246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an
employee subject to any active or dormant health impair
ments, and a work connected injury which more than slightly
aggravates the condition is considered to be a personal
injury. Ziegler v. United States Gypsum Co., 252 Iowa 613,
620, 106 N.W.2d 591 (1960) and cases cited therein.
No findings could be made as claimant failed to appear
for hearing. As claimant had the burden of proof, the claim
is dismissed with prejudice.
order
1. Claimant's petition is dismissed with prejudice.
2. Claimant shall pay the costs of this action pur
suant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
Signed and filed this ____ day of February, 1992.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Matthew Glasson
Attorney at Law
Suite 206 Higley Bldg
118 Third Ave SE
Cedar Rapids IA 52401
Mr. Raymond R. Stefani, II
Mr. Thomas F. Ochs
Attorneys at Law
200 American Bldg
101 2nd St SE
Cedar Rapids IA 52401
5-1803
Filed February 5, 1992
LARRY P. WALSHIRE
before the iowa industrial commissioner
____________________________________________________________
:
EUGENE I. STONEKING, :
:
Claimant, :
:
vs. :
: File No. 966348
WESTSIDE ERECTORS, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
THE TRAVELERS COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
Non-precedential, extent of disability case.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
MARY KAY HEIDERSCHEIT, :
:
Claimant, : File No. 966355
:
vs. : A R B I T R A T I O N
:
FDL FOODS, INC., : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
introduction
This is a proceeding in arbitration brought by Mary Kay
Heiderscheit, claimant, against FDL Foods, Inc., employer
and self-insured defendant, for benefits as a result of an
alleged injury that occurred on August 28, 1990. A hearing
was held on April 8, 1992, in Dubuque, Iowa, and the case
was fully submitted at the close of the hearing. Claimant
was represented by James P. Hoffman. Defendant was
represented by James M. Heckmann. The record consists of
the testimony of Mary Kay Heiderscheit, claimant; claimant's
exhibits 1 through 29; and, employer's exhibits 1 through
12. Defendant submitted a description of disputes with the
prehearing report. Both attorneys submitted excellent
post-hearing briefs.
issues
The parties submitted the following issues for
determination at the time of the hearing.
Whether claimant sustained an injury on August 28,
1990, which arose out of and in the course of her employment
with employer.
Whether the injury was the cause of either temporary or
permanent disability.
Whether claimant is entitled to permanent disability
benefits and, if so, the extent of benefits to which she is
entitled.
Whether claimant is entitled to medical benefits under
Iowa Code section 85.27.
preliminary matters
The issues of notice pursuant to Iowa Code section
85.23 and statute of limitations pursuant to Iowa Code
section 85.26, which are shown as hearing issues on the
hearing assignment order, were withdrawn by defendant at the
Page 2
time of the hearing.
findings of fact
injury
It is determined that claimant did not sustain an
injury on August 28, 1990, which arose out of and in the
course of her employment with employer.
Claimant is a six-year employee of employer. She
started to work on October 1, 1984. The last day she worked
was the date of the alleged injury, August 28, 1990.
Claimant described and demonstrated the repetitive nature of
her work, marking and trimming loins with an eight-inch
knife. Claimant estimated that she handled between 8,000
and 10,000 pieces of meat each day making as many as 4-5
slices per piece of meat. She indicated it was not unusual
for her to make 20,000 manual maneuvers per day. Claimant
testified that the work was very physical and strenuous and
required that she use both hands to make the cuts on some
occasions.
On August 28, 1990, claimant began to feel shocks which
she described as zings in both forearms that shot from her
elbows to her fingers. The pain became unbearable and she
told the medical department she needed help immediately.
Three nurses debated about the proper course of action and
it was finally determined that claimant should see the
company physician when he visited the plant two days later.
Claimant testified that the pain was too severe; she could
not wait. She left work and went to the Emergency Care
Clinic. Claimant's testimony is corroborated by the
company's medical records.
The records of acute care show that claimant saw Joseph
G. Garrity, M.D., on August 28, 1990. Dr. Garrity recorded
that the patient was a 35-year-old right-handed female who
did lifting of 250 pounds when she popped her right elbow.
She presented to the clinic with pain in the right elbow and
a sense of numbness along the ulnar aspect of the fifth
finger. Dr. Garrity diagnosed a muscle tear, took claimant
off work, prescribed medications, and referred claimant to
the Sports Medicine Clinic. Although claimant went to the
clinic on August 28, 1990, a handwritten note in the margin
shows "DOA 8-24-90." Defendant points out that claimant was
lifting weights on that date and for several days prior to
August 24, 1990.
Claimant denied that she had lifted a 250-pound weight
or that she had told Dr. Garrity that she had lifted a
250-pound weight. In any event, Dr. Garrity did not
attribute the muscle tear to claimant's employment.
Claimant saw Terence A. Alexander, M.D., at the Sports
Medicine Clinic on August 31, 1990. Dr. Alexander recorded
that the patient initially injured herself while lifting
weights one week ago. He wrote down that she was attempting
Page 3
to lift 250 pounds when she felt a snap over the
posteromedial aspect of the right elbow. X-rays were
negative. He diagnosed ulnar neuritis of the right elbow.
Dr. Alexander continued claimant off work, continued
medications, and ordered physical therapy. On September 5,
1990, he said she had probable ulnar neuritis in both
elbows. On September 26, 1990, Dr. Alexander changed his
diagnosis to bilateral ulnar nerve entrapment at the elbow.
He ordered an EMG and nerve conduction studies.
Claimant denied again that she had lifted 250 pounds or
that she had told Dr. Alexander that she had done so. In
any event, however, Dr. Alexander did not relate her pain to
her work or her employment.
Claimant next saw Scott P. Schemmel, M.D., on October
18, 1990, who reported that the electrodiagnostic studies
were unremarkable. Dr. Schemmel questioned whether using a
knife at work was related to her complaints. He said she
could return to work but that she could not use a knife on
her job. Dr. Schemmel saw claimant again on November 29,
1990, at which time he referred her to Thomas J. Hughes,
M.D.
Dr. Schemmel also testified by deposition on April 24,
1991, that he saw claimant on October 18, 1990, and November
29, 1990, with complaints of elbow pain and that he felt she
had irritation of her ulnar nerve at the elbow. He said
claimant reported that use of a knife at work exacerbated
her symptoms. However, in between his two appointments on
October 18, 1990, and November 29, 1990, she did not work
and her symptoms were essentially unchanged and she
continued to make the same complaints. He said claimant's
symptoms were not significant enough to warrant surgery but
rather should be treated by limiting or modifying her
activities. Dr. Schemmel further testified that claimant
did not have any permanent impairment based either on
objective findings or her own subjective complaints of
numbness and tingling. He felt her symptoms would resolve
and he expected her to recover fully without any permanent
impairment. Dr. Schemmel testified that the treatment which
claimant received was appropriate for her complaints, but he
was unable to testify that the treatment was caused or
necessitated by her employment.
Dr. Schemmel did not testify in his deposition that
claimant's complaints were caused by her employment for
employer, even though at the time of treatment he questioned
whether they were work related.
Claimant saw Dr. Hughes on December 13, 1990. He
suggested that claimant see the company physician if she was
claiming a work-related injury, but she returned on January
3, 1991, stating her workers' compensation claim had been
denied. Claimant did testify at hearing that her hands and
forearms are cold and she showed that they have a red color.
Dr. Hughes noted that her arms from her elbows down to her
fingers were cold, purple, sore, and that her elbows tingled
Page 4
constantly. Dr. Hughes ordered an EMG and nerve conduction
studies a second time.
Patrick R. Sterrett, M.D., reported on January 24,
1991, that the nerve conduction and EMG studies were normal
and that there had been no significant change since the
earlier studies performed in October of 1990. No evidence
of nerve entrapment was identified. Dr. Hughes gave
claimant an injection of Cortisone which she did not
tolerate well, but rather caused her a great deal of
discomfort for which she had to seek additional medical
treatment.
On February 1, 1991, Dr. Hughes recommended against
surgery. He did not know of any additional physical therapy
modalities that would be beneficial and he had no further
additional treatment to offer her.
In a letter dated June 11, 1991, Dr. Hughes stated that
he did not have a diagnosis for claimant, but her symptoms
would lead one to believe that she had a bilateral ulnar
neuritis. He said that her examination at the University of
Iowa Hospitals and Clinics "found such inconsistencies in
her findings that they were disinclined to render a
diagnosis or even offer any therapy."
Thus, Dr. Hughes did not relate claimant's complaints
to her work or her employment.
The University of Iowa Department of Neurology, more
specifically, Robert L. Rodnitzky, M.D., examined claimant
and wrote to Dr. Hughes on February 21, 1991. Dr. Rodnitzky
stated that claimant was seen on February 11, 1991, and that
he found no evidence of peripheral or central nervous system
disease. He too noted that claimant's symptoms had not
improved since stopping work. He concluded his letter by
stating there was no evidence of peripheral nerve disease.
Spinal cord pathology had been excluded by a normal cervical
spine MRI.
Therefore, Dr. Rodnitzky did not find that claimant's
complaints were related to her employment nor did he find
any permanent impairment.
Defendant brought out on cross-examination that
claimant was interested in physical fitness and works out
about three times a week at the Century Health Club. The
records of the Century Health Club indicate that claimant
has followed a rigorous program. She demonstrated some of
the lifts and exercises at the time of hearing, some of
which employ the use of her hands, wrists and forearms and
also her elbows and shoulders. Claimant stated that she
could perform these exercises and lifts but explained that
they were different from the repetitive use of a knife
several thousand times per day. Claimant testified that the
doctors told her that weight lifting was good physical
exercise for her complaints.
Page 5
Claimant pointed out that her arms were more muscled
than most women because of her physical fitness pursuits.
Claimant pointed out that, although she had been restricted
several times from working with knives, no doctor has ever
restricted her from lifting weights. Claimant also
acknowledged that, in her current job as a blackjack dealer
on the Casino Belle, she is able to use her fingers to deal
cards, but she added that sometimes she is not able to do
that because of the pain.
Although many persons who have performed less
repetitive work than claimant for shorter periods of time
have been determined to have suffered cumulative,
repetitive, overuse types of injuries, nevertheless, in this
case, none of the many doctors stated that claimant's
complaints were caused by her employment.
Wherefore, based upon the foregoing evidence, it is
determined that claimant did not sustain an injury on August
28, 1990, which arose out of and in the course of her
employment with employer. Claimant was examined by Dr.
Garrity, Dr. Alexander, Dr. Schemmel, Dr. Hughes, and Dr.
Rodnitzky. None of these doctors testified that claimant's
work was a cause of her complaints.
Since claimant did not prove an injury arising out of
and in the course of her employment with employer, then all
other issues in this case are moot.
conclusions of law
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made.
That claimant did not sustain the burden of proof by a
preponderance of the evidence that she sustained an injury
on August 28, 1990, which arose out of and in the course of
her employment due to the repetitive use of her hands and
arms. Iowa Code section 85.3(1). McDowell v. Town of
Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent.
Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
order
THEREFORE, IT IS ORDERED:
That no amounts are owed by defendant to claimant for
either weekly benefits or medical benefits.
That the costs of this action, including the cost of
the attendance of the court reporter at hearing, are charged
to claimant pursuant to Iowa Code section 86.40 and rule 343
IAC 4.33.
That defendant file any claim activity reports
requested by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ______ day of ____________, 1992.
Page 6
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. James P. Hoffman
Attorney at Law
Middle Road
P.O. Box 1087
Keokuk, Iowa 52632
Mr. James M. Heckmann
Attorney at Law
One CyCare Plaza
Suite 216
Dubuque, Iowa 52001
5-1108.50
Filed April 21, 1992
WALTER R. McMANUS, JR.
before the iowa industrial commissioner
____________________________________________________________
:
MARY KAY HEIDERSCHEIT, :
:
Claimant, : File No. 966355
:
vs. : A R B I T R A T I O N
:
FDL FOODS, INC., : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
5-1108.50
Claimant failed to prove that the repetitive work with her
hands and arms with a knife was the cause of an injury
arising out of and in the course of employment. She was
seen by five doctors and none of them said her complaints
were caused by her work or her employment. X-rays were
normal. Two EMGs were normal. An MRI was normal. None of
the doctors found any permanent impairment caused by her
employment.
before the iowa industrial commissioner
_________________________________________________________________
:
LORENZA AMAYA, :
:
Claimant, :
:
vs. :
: File No. 966359
PAK FABRICATORS, LTD., :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INSURANCE :
COMPANY, :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
_________________________________________________________________
The record has been reviewed de novo on appeal. The ruling of
the deputy filed October 16, 1991 is affirmed and is adopted as
the final agency action in this case.
Signed and filed this ____ day of February, 1992.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Sheldon M. Gallner
Attorney at Law
P.O. Box 1588
Council Bluffs, Iowa 51502
Mr. James M. Cosgrove
Attorney at Law
P.O. Box 1828
Sioux City, Iowa 51102
Ms. Shirley Ann Steffe
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg.
Des Moines, Iowa 50319
9998
Filed February 24, 1992
Byron K. Orton
HJW
before the iowa industrial commissioner
____________________________________________________________
_____
:
LORENZA AMAYA, :
:
Claimant, :
:
vs. :
: File No. 966359
PAK FABRICATORS, LTD., :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INSURANCE :
COMPANY, :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
____________________________________________________________
_____
9998
Summary affirmance of deputy's ruling filed October 16,
1991.
Page 1
before the iowa industrial commissioner
____________________________________________________________
_____
:
JAMES W. DEMRO, :
:
Claimant, : File No. 966361
:
vs. : A P P E A L
:
JOHN DEERE WATERLOO WORKS, : D E C I S I O N
:
Employer, :
Self-Insurance, :
Defendant. :
____________________________________________________________
_____
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal.
issues
The issue on appeal is: Whether claimant has proved that he
sustained an occupational hearing loss arising out of and in
the course of his employment.
findings of fact
The findings of fact contained in the proposed agency
decision filed July 6, 1992 are adopted as set forth below.
Segments designated by brackets ([ ]) indicate language that
is in addition to the language of the proposed agency
decision.
James Demro, 52 years of age at hearing, took
employment with John Deere Waterloo Works ("Deere") in 1959
at age 19. Prior to 1959, claimant had very little work
history and had not experienced hearing problems.
John Deere is a well-known manufacturer of heavy
equipment, including farm tractors and the like.
For the first ten months of this employment, claimant
worked in "Department 91" located in the foundry and mill
area. This environment was so noisy that workers could
converse only by shouting into one another's ears. Claimant
used wadded up toilet paper as hearing protective devices
(none were provided by Deere at this early date), but
developed tinnitus bilaterally after approximately two
months. This condition and hearing loss in general has
progressed over the last 33 years.
Claimant also worked in Department 91 for approximately
ten months in 1961 and was subjected to similar noise. All
departments of the Deere plant--this is, after all, a heavy
manufacturing facility--entail loud noise, but nothing so
extreme as Department 91. [(Tr., p. 12)]
Defendant eventually provided hearing protectors, but
use thereof was not mandatory until some three months before
Page 2
Mr. Demro retired after 30 years of service on July 31,
1989. [Claimant testified that when he worked in a noisy
department he wore the hearing protection devices that
defendant provided. (Tr., p. 16, ll. 7-11)] Claimant used
the protective devices whenever he was in an especially
noisy department, carrying them in his pocket or tool box.
[Claimant thought the mill room in which he last worked in
1961 was the biggest cause of his hearing loss. (Tr., pp.
18-19)] Nonetheless, his hearing progressively deteriorated
over the years.
Claimant has done a great deal of hunting over the
years with a bow, .22 caliber rifle and shotgun. The bow
and rifle are relatively quiet. On average, claimant shoots
perhaps 75-100 shotgun blasts per year. He does not wear
hearing protective devices while doing so. Mr. Demro
conceded that he has not discussed his hunting activities
with medical practitioners.
The record contains a number of audiograms. The
earliest of these, in March 1972, shows the following
hearing thresholds:
Left Ear Right Ear
500 Hz 15 15
1000 Hz 10 10
2000 Hz 35 10
3000 Hz 75 60
[Applying the statutory formula in Iowa Code section
85B.9 to this test results in a binaural hearing loss of
2.1875 percent.]
An audiogram on August 29, 1983, measured the following
thresholds:
Left Ear Right Ear
500 Hz 15 10
1000 Hz 25 10
2000 Hz 65 60
3000 Hz 80 70
[Applying the statutory formula in Iowa Code section
85B.9 to this test results in a binaural hearing loss of
20.9375 percent.]
An audiogram on September 20, 1988, showed:
Left Ear Right Ear
500 Hz 25 25
1000 Hz 40 45
2000 Hz 85 65
3000 Hz 90 85
[Applying the statutory formula in Iowa Code section
85B.9 to this test results in a binaural hearing loss of
46.25 percent.]
Page 3
As noted, claimant retired on July 31, 1989. On August
25, 1989, he notified defendant by counsel that he believed
he had incurred occupational hearing loss and requested
information as to the dates, duration and intensities of
noise to which he had been subjected.
An audiogram on September 12, 1989, showed the
following thresholds:
Left Ear Right Ear
500 Hz 30 25
1000 Hz 40 45
2000 Hz 80 70
3000 Hz 90 85
[Applying the statutory formula in Iowa Code section
85B.9 to this test results in a binaural hearing loss of
47.8125 percent.]
Claimant underwent another audiogram on November 1,
1990. However, this audiogram did not measure response at
3000 Hz (although thresholds for left and right ear
respectively were 80 and 70 decibels at 2000 Hz, and in
excessive both of 100 and 90 decibels at 4000 Hz).
Jose C. Aguiar, M.D., has concluded that claimant
suffers a noise-induced sensorineural hearing loss and that
it is reasonable and probable that his exposure to excessive
industrial noise from 1976 to 1989 caused the same.
[The record indicates that claimant was seen by R.V. Corton
on August 29, 1983 and C.D. Bendixen, M.D., on September 20,
1988; December 13, 1988 and May 15, 1989 (Ex. A, p. 9).
Corton expressed no opinion on the cause of claimant's
hearing loss. Dr. Bendixen suspected that the continuing
loss was familial.]
conclusions of law
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
Page 4
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).
Occupational hearing loss is defined in Iowa Code
section 85B.4. Under the section, an occupational hearing
loss is a permanent sensorineural loss of hearing in one or
both ears in excess of 25 decibels which arose out of and in
the course of the employment and was caused by prolonged
exposure to excessive noise levels. An excessive noise
level is sound capable of producing occupational hearing
loss or sound exceeding the time and intensities listed in
the table in Iowa Code section 85B.5 or both. See Muscatine
County v. Morrison, 409 N.W.2d 685 (Iowa 1987).
The table in Iowa Code section 85B.5 then, is not the
minimum standard defining an excessive noise level in
section 85B.4(2). The table in section 85B.5 lists noise
level times and intensities which, if met, will be
presumptively excessive noise levels of which the employer
must inform the employee. See Muscatine County v. Morrison,
409 N.W.2d 685 (Iowa 1987).
Claimant clearly has a hearing loss. The parties
dispute whether this hearing loss arose out of and in the
course of claimant's employment with defendant. It is
claimant's burden to establish entitlement to benefits.
Claimant's own testimony indicates that he thought his work
environment was the noisiest prior to leaving Department 91
in 1961. A test of claimant's hearing loss in March 1972
showed a binaural hearing loss of 2.1875 percent. Claimant
testified that other areas were he worked were not as noisy
as Department 91. He also testified that he would wear
hearing protection devices when it was noisy in the other
work areas. (It is not clear from the record when claimant
began wearing the hearing protection devices.) Despite
working in less noisy areas and wearing hearing protection
devices claimant's binaural hearing loss increased to
20.9375 percent in 1983 and 46.25 percent in 1988. It
further increased to 47.8125 percent in September 1989, six
weeks after claimant had retired. Claimant's own testimony
does not support his assertion that the work caused his
hearing loss.
Dr. Aguiar concluded that claimant's employment caused
claimant's hearing loss. However, that opinion was based
upon a history of excessive industrial noise from 1976 to
1989 which is inconsistent with claimant's testimony. Also,
Dr. Aguiar was not aware of claimant's use of firearms.
Therefore, Dr. Aguiar's opinion is based upon an inaccurate
Page 5
history and can be given little, if any, weight.
Evidence in this case cannot be reconciled with
claimant's burden of proving entitlement to benefits. It is
not the responsibility of the industrial commissioner to
rule out all possible causes of compensable injury other
than employment. It is claimant's responsibility to prove
that his work was the probable cause of his alleged
disability. Claimant has failed to meet his burden of proof
in this case.
The instant case can be distinguished from Furry v.
John Deere Dubuque Works of Deere & Co., File No. 760430
(Appeal Decision, November 12, 1986). In Furry, the
audiograms showed a steady increase of binaural hearing loss
form 1976 to 1984 (when employees were required to wear
hearing protective devices). None of Furry's audiograms
were conducted after 1984. In the instant case it appears
that some of the audiograms may have been conducted after
claimant began wearing hearing protective devices. The
instant case can also be distinguished from the facts of
John Deere Dubuque Works v. Meyers, 410 N.W.2d 255 (Iowa
1987). In Meyers there was evidence of noise exposure as
high as 90-105 dba and later 78-89 dba. Also, in Meyers the
court at 410 N.W.2d 255, 156 stated: "At Deere's referral,
he was examined by an otolaryngologist on March 18, 1982,
who diagnosed high-frequency sensorineural hearing loss
related to noise exposure at work." (Emphasis added)
WHEREFORE, the decision of the deputy is reversed.
order
THEREFORE, it is ordered:
That claimant shall take nothing from these proceedings.
That defendant shall pay the costs of this matter including
the transcription of the hearing.
Signed and filed this ____ day of December, 1992.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. John S. Pieters
Attorney at Law
2315 Falls Ave., Ste 3
Waterloo, Iowa 50701
Mr. John W. Rathert
Attorney at Law
P.O. Box 178
Waterloo, Iowa 50704
1402.30; 2208
Filed December 30, 1992
BYRON K. ORTON
DRR
before the iowa industrial commissioner
____________________________________________________________
_____
:
JAMES W. DEMRO, :
:
Claimant, : File No. 966361
:
vs. : A P P E A L
:
JOHN DEERE WATERLOO WORKS, : D E C I S I O N
:
Employer, :
Self-Insurance, :
Defendant. :
____________________________________________________________
_____
1402.30; 2208
Claimant failed to prove that his hearing loss was out of
and in the course of his employment. The only medical
opinion on causation was based on an inaccurate history.
Claimant's testimony regarding noise level and alleged
hearing loss indicated that the hearing loss occurred after
claimant began working in a less noisy environment and
started wearing hearing protective devices. Claimant's
audiograms reflected a continuing hearing loss after
claimant retired.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JAMES W. DEMRO, :
:
Claimant, : File No. 966361
:
vs. : A R B I T R A T I O N
:
JOHN DEERE WATERLOO WORKS, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
STATEMENT OF THE CASE
Claimant James W. Demro filed a petition in arbitration
against his former self-insured employer, John Deere
Waterloo Works, upon his allegation of an occupational
hearing loss sustained during the course of that employment.
He now seeks benefits under the Iowa Workers' Compensation
Act.
This cause came on for hearing in Waterloo, Iowa, on
June 19, 1992. The record consists of joint exhibits A
through C and claimant's testimony.
ISSUES
The parties have stipulated to the existence of an
employment relationship between claimant and employer at the
time of the alleged injury and to the rate of compensation.
Claimant does not seek medical benefits.
Issues presented for resolution include:
1. Whether claimant sustained an occupational hearing
loss arising out of and in the course of his employment with
John Deere Waterloo Works on July 31, 1989; and, if so,
2. The extent thereof.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
James Demro, 52 years of age at hearing, took
employment with John Deere Waterloo Works ("Deere") in 1959
at age 19. Prior to 1959, claimant had very little work
history and had not experienced hearing problems.
John Deere is a well-known manufacturer of heavy
equipment, including farm tractors and the like.
For the first ten months of this employment, claimant
worked in "Department 91" located in the foundry and mill
area. This environment was so noisy that workers could
Page 2
converse only by shouting into one another's ears. Claimant
used wadded up toilet paper as hearing protective devices
(none were provided by Deere at this early date), but
developed tinnitus bilaterally after approximately two
months. This condition and hearing loss in general has
progressed over the last 33 years.
Claimant also worked in Department 91 for approximately
ten months in 1961 and was subjected to similar noise. All
departments of the Deere plant--this is, after all, a heavy
manufacturing facility--entail loud noise, but nothing so
extreme as Department 91.
Defendant eventually provided hearing protectors, but
use thereof was not mandatory until some three months before
Mr. Demro retired after 30 years of service on July 31,
1989. Claimant used the protective devices whenever he was
in an especially noisy department, carrying them in his
pocket or tool box. Nonetheless, his hearing progressively
deteriorated over the years.
Claimant has done a great deal of hunting over the
years with a bow, .22 caliber rifle and shotgun. The bow
and rifle are relatively quiet. On average, claimant shoots
perhaps 75-100 shotgun blasts per year. He does not wear
hearing protective devices while doing so. Mr. Demro
conceded that he has not discussed his hunting activities
with medical practitioners.
The record contains a number of audiograms. The
earliest of these, in March 1972, shows the following
hearing thresholds:
Left Ear Right Ear
500 Hz 15 15
1000 Hz 10 10
2000 Hz 35 10
3000 Hz 75 60
An audiogram on August 29, 1983, measured the following
thresholds:
Left Ear Right Ear
500 Hz 15 10
1000 Hz 25 15
2000 Hz 65 10
3000 Hz 80 60
An audiogram on September 20, 1988, showed:
Left Ear Right Ear
500 Hz 25 25
1000 Hz 40 45
2000 Hz 85 65
3000 Hz 90 85
As noted, claimant retired on July 31, 1989. On August
Page 3
25, 1989, he notified defendant by counsel that he believed
he had incurred occupational hearing loss and requested
information as to the dates, duration and intensities of
noise to which he had been subjected.
An audiogram on September 12, 1989, showed the
following thresholds:
Left Ear Right Ear
500 Hz 30 25
1000 Hz 40 45
2000 Hz 80 70
3000 Hz 90 85
Claimant underwent another audiogram on November 1,
1990. However, this audiogram did not measure response at
3000 Hz (although thresholds for left and right ear
respectively were 80 and 70 decibels at 2000 Hz, and in
excessive both of 100 and 90 decibels at 4000 Hz).
Jose C. Aguiar, M.D., has concluded that claimant
suffers a noise-induced sensorineural hearing loss and that
it is reasonable and probable that his exposure to excessive
industrial noise from 1976 to 1989 caused the same.
CONCLUSIONS OF LAW
Iowa Code section 85B.4 provides:
1. "Occupational hearing loss" means a permanent
sensorineural loss of hearing in one or both ears
in excess of twenty-five decibels if measured from
international standards organization or American
national standards institute zero reference level,
which arises out of and in the course of
employment caused by prolonged exposure to
excessive noise levels.
In the evaluation of occupational hearing loss,
only the hearing levels at the frequencies of five
hundred, one thousand, two thousand, and three
thousand Hertz shall be considered.
2. "Excessive noise level" means sound capable of
producing occupational hearing loss.
Chapter 85B also sets forth a table of noise
intensities and times to be deemed "excessive." However,
the legislature did not intend to rule out hearing losses
caused by excessive noise below these exposure levels, which
merely provide presumptive evidence of excessive noise as a
matter of simplifying prior problems of proof. Muscatine
County v. Morrison, 409 N.W.2d 685 (Iowa 1987).
Claimant clearly has a hearing loss. The parties
dispute whether it is occupational in nature; that is, did
it arise out of and in the course of employment. It is
claimant's burden of proof to establish entitlement to
benefits. This decision holds that he has met that burden.
Page 4
Claimant's hearing problems began during his early exposure
to excessive noise in 1959 (and again in 1961). An argument
can be made that the "date of the injury" occurred at that
remote time under 85B.8. That section provides that the
date of the injury shall be the occurrence of one of the
following events:
1. Transfer from excessive noise level employment
by an employer.
2. Retirement.
3. Termination of the employer-employee
relationship.
Departments in which claimant worked after 1961 were
less noisy than in the foundry area. Nonetheless, claimant
has indicated that other areas of the plant were also noisy,
even if less so. Defendant must agree that there is some
danger, since hearing protective devices were furnished and
eventually made mandatory, even though claimant no longer
worked in the foundry. As claimant's hearing loss has
proven progressive in nature, it is held that his exposure
to excessive noise continued after 1961. The date of injury
for purposes of this decision is based on claimant's
retirement on July 31, 1989.
There is a weakness of proof. Dr. Aguiar, who is the
only practitioner to have opined as to causation, was not
aware of claimant's hunting activities. Still, given the
dramatic onset of bilateral tinnitus in 1959 and continued
exposure to a noisy work environment, and considering that
claimant's exposure to noisy shotgun explosions is limited
to 75 or 100 events per year, it is held that excessive
noise levels at work contributed substantially to Mr.
Demro's hearing loss.
Under section 85B.9, a statutory formula is set forth
to measure hearing loss. The statute requires that the
audiogram having the lowest threshold of loss following
notice of an occupational hearing loss claim shall be used
to calculate occupational hearing loss. Notice of this
claim was made on August 25, 1989. The September 12, 1989,
audiogram must be used, since other audiograms did not
measure hearing loss at 3000 Hz. As will be recalled,
section 85B.4 requires that hearing losses "only" at the
four specified frequencies shall be considered.
Calculations of hearing loss for the September 12,
1989, audiogram appear in exhibit A, page 11. The
calculations set forth in that exhibit are accurate and
reflect a total binaural hearing loss within the meaning of
section 85B.9 of 47.8125 percent. Maximum compensation for
occupational hearing loss is 175 weeks for total loss.
Partial occupational hearing loss is payable in the same
ratio as the binaural loss bears to 100 percent. One
hundred seventy-five weeks multiplied by 47.8125 percent
equals 83.67 weeks. Claimant shall be awarded those
benefits at the stipulated rate.
Page 5
ORDER
THEREFORE, IT IS ORDERED:
Defendant shall pay unto claimant eighty-three point
six seven (83.67) weeks of permanent partial disability
benefits at the stipulated rate of four hundred two and
58/100 dollars ($402.58) per week commencing July 31, 1989.
As all benefits have accrued, they shall be paid in a
lump sum together with statutory interest pursuant to Iowa
Code section 85.30.
Costs are assessed to defendant pursuant to rule 343
IAC 4.33.
Defendant shall file a claim activity report showing
compliance with this decision pursuant to rule 343 IAC 3.1.
Signed and filed this ______ day of ____________, 1992.
______________________________
DAVID RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. John S. Pieters
Attorney at Law
2315 Falls Avenue, Suite 3
Waterloo, Iowa 50701
Mr. John W. Rathert
Attorney at Law
620 Lafayette Street
P.O. Box 178
Waterloo, Iowa 50704
5-2208
Filed July 6, 1992
DAVID RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JAMES W. DEMRO,
Claimant, File No. 966361
vs. A R B I T R A T I O N
JOHN DEERE WATERLOO WORKS, D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
5-2208
Occupational hearing loss benefits were awarded.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
JOAN BOATWRIGHT, :
:
Claimant, :
:
vs. :
: File No. 966362
THE DIAL CORPORATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
Self-Insured, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
This is a proceeding in arbitration upon the petition
of claimant, Joan Boatwright, against The Dial Corporation,
self-insured employer, defendant. The case was heard on
April 30, 1992, at the Des Moines County Courthouse, in
Burlington, Iowa. The record consists of the testimony of
claimant. Additionally, the record consists of the
testimonies of Miley Boatwright, daughter; Rick Danaer,
industrial relations and resources manager; and, Marge
Harely, personnel clerk. The record is also comprised of
joint exhibits 1-26.
issue
The sole issue to be determined is whether claimant is
entitled to any permanent partial disability benefits, and
if so, the nature and extent of those benefits.
findings of fact
The deputy, having heard the testimony and considered
all the evidence, finds:
Claimant is a 48-year-old married woman with three
children. She dropped out of school in the eleventh grade
but at the time of the hearing, claimant had obtained her
GED.
Claimant has worked at Armour Dial for the past fifteen
years as a production worker. Approximately five years ago,
claimant worked in the manufacturing department where she
packed Vienna sausages into a can. Since 1989, claimant has
worked as a relief operator. This is a job which requires
her to perform all types of functions, and to operate
various machines. Claimant had injured herself on one of
the machines on January 12, 1990. She was engaging in
repetitive motions where she felt compelled to push and pull
Page 2
pallets using her left shoulder. Claimant had experienced
pain and discomfort.
Claimant sought treatment from a treating physician,
Neville Crenshaw, D.O. He, in turn, referred claimant to
Robert L. Grubb, M.D., a neurologist with the Washington
University School of Medicine.
Dr. Grubb requested an MRI of the cervical spine. The
test was performed on March 2, 1990. It revealed:
"herniation of the C6-7 disc which is midline and to the
left." (Ex. 9, p. 25)
On March 16, 1990, Dr. Grubb performed "an anterior
cervical discectomy at C6-7 and fusion with a piece of bank
bone." (Ex. 11, p. 28-29)
Subsequent to the surgery, claimant participated in
physical therapy three times a week. She progressed,
however, she was involved in a motor vehicle accident on Jun
7, 1990. The accident was unrelated to any work injury.
On June 9, 1990, claimant saw Dr. Grubb again. She
reported to the neurologist that:
Left arm pain had cleared, was still having some
neck and left shoulder pain but this was improved
also. Since accident has had increase in neck and
left shoulder pain and complains of aching pain in
medial left upper arm which is different from her
preoperative pain. AP and lateral cervical spine
film today shows satisfactorily alignment of
cervical spine and further fusion of C6 and C7.
No fracture seen. Examination today shows that
she has a good range motion of her neck except for
some limitation of left turning of her neck. No
focal, motor or sensory deficit.
(Ex. 25, p. 65)
Several months later claimant saw Dr. Grubb again. A
second MRI was requested. According to Dr. Grubb's office
notes of November 17, 1990, he opined:
MRI scan of cervical spine done in Keokuk on
9/20/90 was reviewed. There was no evidence of
herniated disc and foramina were widely patent.
C6-7 operative site showed postoperative changes,
no evidence of recurrent disc at this level.
Patient was told to try to use intermittent
cervical halter traction at home with 7-10 lbs. of
weight four to five times a day for 15-20 minutes
at a time. Given permission for the Physical
Therapy Department to teach her how to use home
halter traction and to continue physical therapy
three times a week for two months. Patient unable
to work at this time. She is to see Dr. Crenshaw
in early January, 1991 for reevaluation in regards
to return to work. She was told that I did not
need to see her again if her symptoms cleared and
Page 3
she was having no problems. If her symptoms fail
to clear she is to make a return appointment for
followup examination.
(Ex. 12, p. 30)
James Kanneberg, M.D., in conjunction with Dr. Grubb,
released claimant to return to work on January 21, 1991,
with a 30 pound lifting restriction. Later, claimant was
allowed to return to work without restrictions (Ex. 3, p.
14).
On February 8, 1991, claimant returned to work. Since
then she has refused some overtime. Claimant has also
modified her work tasks. She no longer needs to push
pallets with her left shoulder. She can now slide the
pallets across rollers with a chain.
After her return to work, claimant had been "bumped
from the position of relief operator" to the more difficult
position of unscrambler. She had problems performing the
job and she was disqualified from it for a period of time.
At the time of the hearing, claimant was still employed
with defendant as a relief operator. However, the company
had been experiencing cutbacks. It is unknown whether
claimant will be laid off from the plant. All layoffs are
governed by seniority.
conclusions of law
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
Claimant has established the requisite causal
connection between her work injury of January 12, 1990 and
claimant's permanent condition. While defendant has argued
that claimant's condition is related to her subsequent motor
vehicle accident, the argument carries no weight. The
Page 4
diagnostic tests which were administered after the motor
vehicle accident show no objective signs of damage.
Additionally, the treating neurologist causally relates
claimant's cervical condition to her work injury.
The next issue for discussion is the nature and extent
of any permanency.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Page 5
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
Dr. Grubb, the surgeon, had opined that claimant has a
10 percent functional impairment (Ex. 23, p. 52). He had
released her to her former position which has been modified
by defendant. Claimant is capable of performing the relief
operator position. She has been unsuccessful in performing
the unscrambler operation. Claimant has refused some
overtime opportunities. She takes two to three pain pills
per week.
Claimant is a conscientious employee who has the
respect of her foreman. She has the same job at the same
rate of pay, although she does not perform the job in the
same manner. Her gross pay has been reduced because she has
refused some overtime. Whether claimant is laid off will
depend on economic conditions rather than upon her cervical
condition.
After reviewing the record, observing the witnesses,
and after considering the evidence, it is the determination
of the undersigned that claimant has sustained a permanent
partial disability in the amount of 15 percent. Claimant is
entitled to 75 weeks of benefits at the stipulated rate of
$278.06 per week and commencing on February 8, 1991.
Defendant is entitled to a credit for sick and accident
benefits previously paid to claimant pursuant to section
85.38(2). The amount of credit allowed to an employer for
disability income payments made under a group plan is the
net amount which the employee realizes after any income
taxes attributable to the group disability income payments
are deducted from the total amount of payments actually
paid. See Beller v. Iowa State Penitentiary, File No.
799401 (Appeal Decision July 10, 1991).
Page 6
order
THEREFORE, it is ordered:
Defendant is to pay unto claimant seventy-five (75)
weeks of permanent partial disability benefits at the
stipulated rate of two hundred seventy-eight and 06/100
dollars ($278.06) per week and commencing on February 8,
1991.
Defendant shall receive credit as aforementioned for
sick and accident benefits paid to claimant pursuant to
section 85.38(2) of the Iowa Code, as amended.
Accrued benefits are to be paid in a lump sum together
with statutory interest at the rate of ten percent (10%) per
year.
Costs are taxed to defendant pursuant to rule 343 IAC
4.33.
Defendant shall file a claim activity report as
requested by this division and pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of May, 1992.
________________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr James P Hoffman
Attorney at Law
Middle Rd
Box 1087
Keokuk IA 52632
Mr Larry L Shepler
Attorney at Law
Ste 102 Executive Sq
400 Main St
Davenport IA 52801
Mr E J Giovannetti
Attorney at Law
Terrace Ctr Ste 111
2700 Grand Ave
Des Moines IA 50312
1803
Filed May 18, 1992
Michelle A. McGovern
before the iowa industrial commissioner
____________________________________________________________
:
JOAN BOATWRIGHT, :
:
Claimant, :
:
vs. :
: File No. 966362
THE DIAL CORPORATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
Self-Insured, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1803
Claimant has sustained a 15% permanent partial disability.
She sustained an injury to her cervical spine. Claimant
returned to work with defendant at the same job but she did
not perform the job in the same manner. Claimant was
disqualified from one job because her condition prevented
her from performing the tasks. Claimant also refused some
overtime because of her work-related condition.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
DONALD G. WELDER, :
:
Claimant, : File No. 966366
:
vs. : A R B I T R A T I O N
:
OSCAR MAYER FOODS, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
statement of the case
Claimant Donald G. Welder seeks benefits under the Iowa
Workers' Compensation Act upon his petition in arbitration
against defendant self-insured employer Oscar Mayer Foods.
He asserts cumulative injury to the back and inguinal hernia
attributable to that employment, which ceased on February 3,
1989, when Oscar Mayer Foods (a packinghouse) went out of
business at the location where claimant was employed.
This cause came on for hearing in Des Moines, Iowa, on
January 17, 1992. The record consists of claimant's
testimony and joint exhibits A through F.
Claimant's wife was excluded from a portion of the
hearing because she attempted to influence or assist Mr.
Welder's testimony after being instructed to desist.
issues
Theryloyed, nine hours per day, working mostly on construction
and repair projects relating to chicken houses. This work
does not seem to bother his back or hernia, except on
unusually strenuous days.
Claimant was seen by Stephen Sundberg, M.D., on July
25, 1990. Dr. Sundberg's chart notes reflect that claimant
reported diagnosis of a hernia during a general physical
some 7-8 months before, which was prior to working with the
demolition company. Claimant reported numerous aches and
pains while employed at Oscar Mayer, but "at no time did he
have any discomfort in the inguinal area. He continues
Page 3
today to have no discomfort." Dr. Sundberg diagnosed an
inguinal hernia which he attributed to claimant's long
history of heavy physical work. He recommended surgical
repair of the hernia.
Claimant was seen for evaluation by John L. Beattie,
M.D., on September 6, 1991. Dr. Beattie also found a rather
large right indirect inguinal hernia which he believed
should be repaired as soon as possible. As a part of his
examination, Dr. Beattie ordered x-rays studies which were
performed by Nabil Faltas, M.D., on September 10. Dr.
Faltas reached an impression of slight osteoarthritis of the
upper and mid lumbar spine especially involving L2-3, but
with no evidence of disc space narrowing. There were no
recent traumatic bony changes or bone destruction.
Dr. Beattie, of the Perry Medical Clinic, found
limitation of motion in the lumbar spine and described
claimant's inability to perform numerous tasks due to pain
(squatting, walking on heels, rolling over, etc.). It was
obvious to Dr. Beattie that claimant had chronic pain and
disability in the lumbar area due to discomfort. He
recommended that claimant live a sedentary life, should have
his right inguinal hernia repaired as soon as possible, and
"should not be doing any type of manual labor because of his
disabilities." Estimating a 25-30 percent impairment of the
body as a whole, Dr. Beattie considered the problems related
to claimant's employment at the Oscar Mayer plant.
Dr. Beattie was not aware that claimant had been
working a relatively active construction job for over a year
before this examination.
Claimant was also seen for evaluation by Daniel J.
McGuire, M.D., of Des Moines Orthopaedic Surgeons, P.C. Dr.
McGuire's letterhead identifies him as a spine surgeon.
Based on the radiographic interpretation of Dr. Faltas and
his own physical examination, Dr. McGuire rated claimant on
November 11, 1991, as having sustained a zero percent
impairment and would recommend no permanent restrictions.
conclusions of law
The parties dispute whether claimant sustained an
injury arising out of and in the course of his employment at
the time of the Oscar Mayer plant closing on February 3,
1989. The words "arising out of" refer to the course or
source of the injury. McClure v. Union County, 188 N.W.2d
283 (Iowa 1971). This requirement is satisfied by showing a
causal relationship between the employment and the injury.
Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986).
Claimant's back complaints are presented essentially as
a cumulative injury. Based on Dr. Sundberg's notes, it is
probable that claimant's hernia is also a cumulative
problem. Typically, in cases of cumulative injury, an
injury is deemed to have occurred on the date when, due to
pain or physical inability, claimant finds himself no longer
able to work. McKeever Custom Cabinets v. Smith, 379 N.W.2d
368 (Iowa 1985). However, if McKeever is blindly followed
Page 4
in all cases, bizarre and unfair results are possible. The
agency has held that leaving work due to the pain or
discomfort of a cumulative injury is not necessarily a
prerequisite to finding a compensable cumulative injury.
Scheuermann v. Oscar Mayer Foods Corp., File No. 773553
(App. Decn., December 20, 1991). If claimant has sustained
compensable injury, it is held that the date of plant
closure is the appropriate date of injury.
Has claimant sustained a compensable back injury?
Because an injury to the back affects the body as a whole, a
permanent injury must be compensated industrially, if at
all. Industrial disability means the reduction of earning
capacity. Second Injury Fund v. Hodgins, 461 N.W.2d 454
(Iowa 1990).
It must be concluded that claimant has failed to meet
his burden of proof in establishing a reduction in earning
capacity caused by his back condition, at least such a
reduction causally related to employment. While Dr. Beattie
finds very substantial physical impairment and recommends a
sedentary life, Dr. McGuire finds zero impairment and
recommends no restrictions. It is necessary to consider how
much weight to give the opinion of each physician.
Although Dr. Beattie's speciality does not appear of
record, his letterhead reflects that he works with the Perry
Medical Clinic. He may very well be a general practitioner.
Dr. McGuire is an orthopaedic surgeon specializing in spine
surgery. Dr. McGuire's opinion also seems more consistent
with the objective evidence as shown by the x-ray
interpretation of Dr. Faltas. Dr. Beattie has not specified
to what degree claimant's estimated impairment and
recommended restrictions are attributable to the back
injury, as opposed to the hernia injury. In agency
experience, many orthopaedic specialists would reserve such
a high impairment rating for cases of multiple failed back
surgery. Even though claimant believed that Dr. Beattie's
examination was more thorough, this writer believes that Dr.
McGuire's opinion should be given greater weight because of
his status as a specialist and because his opinion is more
consistent with the x-ray interpretation of Dr. Faltas.
Accordingly, claimant has not met his burden of proof in
establishing permanent disability relating to his back
condition.
However, the opposite result obtains with respect to
claimant's hernia condition. There is no question but that
a hernia exists and that the recommended treatment is prompt
surgical repair. Dr. Sundberg and Dr. Beattie agree on this
point. Dr. Sundberg's notes show that the hernia was first
diagnosed before claimant took work with the demolition
company. Even though Dr. Sundberg understy a
physician of the employee's own choice, and
reasonably necessary transportation expenses
incurred for the examination. The physician
chosen by the employee has the right to confer
with and obtain from the employer-retained
physician sufficient history of the injury to make
a proper examination.
Dr. Beattie's examination apparently preceded the
examination of Dr. McGuire. Therefore, entitlement to
compensation under 85.39 is not triggered under the
statutory language.
order
THEREFORE, IT IS ORDERED:
Defendant shall provide medical treatment to claimant
consisting of surgical hernia repair by the surgeon of
claimant's choice and shall pay the reasonable cost thereof.
In addition, defendant shall pay resulting temporary
total disability or healing period benefits. No
determination as to permanent disability resulting from
claimant's hernia injury is possible at this time.
The costs of this action are assessed to defendant
pursuant to rule 343 IAC 4.33.
Defendant 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. Robert E. McKinney
Attorney at Law
480 6th Street
P.O. Box 209
Waukee, Iowa 50263
Mr. Harry W. Dahl
Attorney at Law
Page 7
974 73rd Street
Suite 16
Des Moines, Iowa 50312
1402.20; 2209; 2501; 2502
2706; 2906
Filed February 6, 1992
DAVID RASEY
before the iowa industrial commissioner
____________________________________________________________
:
DONALD G. WELDER, :
:
Claimant, : File No. 966366
:
vs. : A R B I T R A T I O N
:
OSCAR MAYER FOODS, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
1402.20; 2209; 2501; 2706
Claimant proved cumulative hernia injury, but failed to
prove back injury as of date plant closed.
Defendant was ordered to provide surgical repair of hernia.
It is impossible to determine extent of future temporary
disability or possible permanency at this time. Claimant
may seek review-reopening if the parties dispute that
entitlement following surgery.
2502
Where 85.39 exam preceded employer physician exam,
entitlement was not triggered, as there was no prior "too
low" rating.
2906
Claimant's wife was excluded from part of hearing because
she attempted to assist or influence his testimony after
being instructed to desist.