Page 1
before the iowa industrial commissioner
____________________________________________________________
:
ROBERT C FRIEDERICH, :
:
Claimant, :
:
vs. :
:File Nos. 967391 & 988003
BEN FRANKLIN, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LUMBERMAN'S MUTUAL CASUALTY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
This decision concerns two proceedings in arbitration
brought by Robert C. Friederich against his former employer,
Ben Franklin, and its insurance carrier based upon alleged
injuries of October 24 and October 25, 1990. The primary
issues to be determined are whether Friederich's angina and
possible heart attack constitute an injury which arose out
of and in the course of employment. Additional issues
include proximate cause, extent of healing period and extent
of permanent disability. Claimant seeks to recover for the
expenses of an independent medical examination under the
provisions of section 85.39. Claimant also seeks to recover
expenses of medical care under the provisions of section
85.27. The employer's liability for the injury is the only
issue associated with the medical expense claim.
The case was heard at Storm Lake, Iowa, on November 4,
1992. The record consists of testimony from Robert C.
Friederich, Jean Wolf, Karen VanGuilder, Ellen McClain,
Michael Bahr, Keith Noah, and Bob Thomson. The record also
contains claimant's exhibits A through N and defendants'
exhibits 1 through 17.
findings of fact
Having considered all the evidence received, together
with the appearance and demeanor of the witnesses, the
following findings of fact are made:
Robert C. Friederich is a 56-year-old divorced man who
spent most of his life in department and variety stores such
as Woolworth's and Ben Franklin. He started as a stock boy
and became a general manager. From 1976 through 1984 he
owned and operated his own Ben Franklin store. He was
forced to sell the store due to a divorce. He sold
insurance for approximately two years and then obtained
Page 2
employment as manager of the Ben Franklin store in Spirit
Lake, Iowa. According to Robert, he worked 12 to 14 hours
per day at the start and enjoyed the work. As time passed
he cut back on his hours. When the Wal Mart store opened in
Spirit Lake, he felt that the Ben Franklin store would
eventually close. It did close in January 1991. Robert had
expected since approximately May 1990 that his store would
close.
In October of 1990 he met with the owners of the store,
Robert Thomson and Keith Noah. They had advised him that
they had in fact decided to close the store and that they
were going to employ a liquidator to handle the closeout
sales. They expressed a concern about merchandise going out
the back door rather than the front. Claimant interpreted
the statement as meaning that they questioned his honesty.
He became very upset. After that lunch meeting he
experienced tightness and pains in his chest. Other
employees noticed that he did not appear well and suggested
he go home. Claimant did go home early that day. He came
to work the following day. During the course of the day he
helped move display tables from the mall area back into the
store itself. They were estimated to weigh in the range of
60 or 70 pounds and were carried by two people. While doing
so, claimant became short of breath and again had chest
pains.
Robert stated at hearing that he continued to move the
tables for approximately 20 minutes after the pain started
because he felt compelled to keep going until the job was
done. On the next day he came to work in the morning. He
left early in order to visit his brother who lived at
LeMars, Iowa. His brother also operated a variety store.
While returning home from LeMars he started getting chest
pains. He was taken to Dickinson County Hospital and then
transferred to the hospital at Sioux Falls, South Dakota,
where he remained for eight days and underwent coronary
bypass surgery. Claimant has not returned to work at Ben
Franklin since the heart surgery.
Claimant had heart problems in 1983. At that time it
was diagnosed as angina and had come on while shoveling
snow. During much of the time subsequent to 1983 he had
been on medication for coronary artery disease. Claimant,
since undergoing the bypass surgery, appears to have
stabilized. He complains of being tired and that he
fatigues easily. His doctors have advised him to avoid
activities such as shoveling snow, pushing cars and other
strenuous exertion.
Claimant had a close relationship with a store employee
named Ellen McClain. Ellen opened a store which competed to
some extent with the Ben Franklin store. Robert Thomson
directed claimant to terminate her employment. He
experienced stress because he did not desire to terminate
her employment.
Claimant considered the stress during the meeting on
October 24, 1990, to exceed that of his nonemployment life.
Page 3
He described his nonemployment life as very easy and simple.
He hired others to perform his yard work and snow removal.
Claimant also stated that the physical exertion associated
with moving the tables was more than what he would engage in
outside of his employment. He stated that he had no stress
in October 1990 other than that associated with his
employment. Claimant also stated that the stresses of the
employment in October 1990 were greater than the normal
stress which he encountered as a store manager.
At the present time claimant is a one-third partner
with Robert Thomson and Keith Noah in four different Subway
sandwich stores. He is also a partner with Ellen McClain in
two stores which are open only during the summer in the
vacation area near Spirit Lake. In his last full year at
Ben Franklin he earned $22,000. In 1991 he earned $59,000
in profits from the Subway stores. Since the 1990 heart
attack claimant has cut back greatly in his golfing and
fishing activities. He has cut back in recreational
dancing.
There is a great deal of medical evidence from medical
sources in the record of this case. Upon reviewing all the
evidence it is found that Robert clearly did have
preexisting coronary artery disease. It is further found
that Robert had stress associated with his employment in
October 1990 and that the stress was probably a
precipitating factor in causing him to have the mild heart
attack which he had on October 1990 and which lead to the
coronary bypass surgery.
It is found that the physical exertion of moving the
tables from the mall to the store was not an exertion of
greater magnitude than normal nonemployment life. It was an
exertion of greater magnitude than this claimant's normal
nonemployment life but it was not an exertion of greater
magnitude than the normal nonemployment life of a normal
individual. The record fails to show any physical exertion
associated with this claimant's employment which was greater
than the physical exertion commonly found in the normal
nonemployment life of a normal individual. Such normal
nonemployment life of a normal individual includes
activities such as shoveling snow, mowing lawns, hiking,
swimming, golfing, playing tennis, going up and down stairs
while carrying articles, and similar activities.
In this case it was well known and expected that the
Ben Franklin store would be forced out of business by the
opening of a Wal Mart store. Claimant had known that for
months prior to October 1990. It was not surprising. It
was not due to any shortcomings on claimant's part and he
was not blamed by Thomson and Noah for the store's
unprofitability. Claimant might have taken the statements
concerning hiring a liquidator to close the store as some
indication of lack of confidence in his integrity, but it
was not necessarily any such indication. The directive for
him to terminate the employment of Ellen McClain likely
caused him some stress, yet it would not have been expected
Page 4
to be an extremely stressful situation. Normal
nonemployment life often involves disputes, disagreements,
rudeness, insults, and other harsh treatment. Normal
employment typically involves supervisor's who are often
less than kind and nurturing. Normal nonemployment life and
normal employment involves being required to do acts which
an individual might find objectionable or disagreeable. In
summary, it is apparent that the discussion with Noah and
Thomson on October 24, 1990, was stressful, the prospect of
closing the store was stressful and being required to
terminate the employment of Ellen McClain was stressful.
The stress is not shown to be of greater magnitude than the
stresses of normal nonemployment life of a normal person.
conclusions of law
Iowa claimants with preexisting circulatory or heart
conditions are permitted, upon proper medical proof, to
recover workers' compensation benefits where the employment
contributes something substantial to increase the risk of
injury or death. The employment contribution must take the
form of an exertion greater than nonemployment life. Sondag
v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The
comparison is not with the employee's usual exertion in
employment or nonemployment life, but with exertions of
normal nonemployment life of this or any other person.
Sondag, 220 N.W.2d at 905. These exertions may be physical
or emotional. Swalwell v. William Knudson & Son, Inc., II
Iowa Industrial Commissioner Report 385 (App. 1982). The
Sondag rule is favored by Professor Larson in his treatise
on workers' compensation. See 1A Larson Workmen's
Compensation Law, section 38.83 at 7-172. According to
Professor Larson, the causation test is a two-part analysis.
First, medical causation must be established. That is,
medical experts must causally relate the alleged stress,
whether emotional or physical, to the heart injury. Second,
legal causation must be established. That is, the
factfinder must determine whether the medically-related
stress is more than the stress of everyday nonemployment
life.
Robert C. Friederich has proven by a preponderance of
the evidence that he had a mild heart attack, that he was
under stress in his employment and that the stress was a
precipitating factor in aggravating his preexisting coronary
condition to cause the heart attack. He has not, however,
proven by a preponderance of the evidence that his
employment related stresses were greater than the stresses
of normal nonemployment life of a normal person. Claimant
has therefore failed to prove that his heart attack arose
out of and in the course of employment.
order
IT IS THEREFORE ORDERED that claimant take nothing from
this proceeding. The costs of this action are assessed
against the claimant.
Signed and filed this ____ day of February, 1993.
Page 5
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Robert E. McKinney
Attorney at Law
480 6th St
PO Box 209
Waukee, Iowa 50263-0209
Ms. Judith Ann Higgs
Attorney at Law
701 Pierce St, STE 200
PO Box 3086
Sioux City, Iowa 51102
Page 1
1108.10 2202 2206
Filed February 26, 1993
Michael G. Trier
before the iowa industrial commissioner
____________________________________________________________
:
ROBERT C FRIEDERICH, :
:
Claimant, :
:
vs. :
:File Nos. 967391 & 988003
BEN FRANKLIN, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LUMBERMAN'S MUTUAL CASUALTY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1108.10 2202 2206
Claimant proved that he sustained a heart attack as a result
of stress associated with his employment. He had
preexisting coronary artery disease. The evidence failed to
show that the employment stress was greater than the
stresses of normal nonemployment life. The claim was
denied.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JACK WOLDRUFF, :
:
Claimant, :
:
vs. :
: File No. 967409
GTE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
THE KEMPER GROUP, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Jack
Woldruff against his employer, GTE, and its insurance
carrier, based upon an alleged injury of October 31, 1990.
The controlling issue in the case is whether Jack Woldruff's
myocardial infarction that occurred on October 31, 1990,
constitutes an injury which arose out of and in the course
of his employment.
The case was heard at Council Bluffs, Iowa, on March
12, 1993. The record consists of testimony from Jack
Woldruff, joint exhibits 1 through 26; and claimant's
exhibit A.
FINDINGS OF FACT
The appearance and demeanor of Jack Woldruff was
observed as he testified at hearing. His testimony has been
considered in light of the other evidence in the case. He
is found to be an impeccably honest witness.
Jack is a 53-year-old married man who has been employed
by GTE for 26 years. He works as a telephone installer and
lineman. He normally works alone using a truck provided by
the employer. The truck is equipped with the materials,
supplies and equipment that he commonly uses for installing
telephone and telephone service lines. The office from
which he works is located at Clarinda, Iowa. On October 31,
1990, he was assigned a job in the nearby town of College
Springs, Iowa.
Jack drove to the site and began preparing to perform
the project. He removed an extension ladder from the truck
and set it on the ground. When he attempted to pick it up
he experienced severe, sharp pain in the middle of his
chest. He did not know what was wrong and suspected that
the problem was indigestion. He waited a few minutes and
Page 2
was unable to continue with the project.
Jack continued to feel abnormal throughout the rest of
his workday. He went to a different nearby town for lunch
at a restaurant. He returned to the office at Clarinda
earlier than his normal stopping time. He requested to
leave work early but was not allowed to leave because
another employee was absent. Jack had also desired to leave
early in order to travel to Osceola, Iowa, for a high school
play-off football game. Jack is an avid supporter of the
Clarinda High School football program.
Jack eventually completed his workday and then went
with his wife to Osceola for the high school football game.
The Clarinda team was successful. While traveling to the
game, Jack consumed a sandwich. He consumed another
sandwich at the game. The Clarinda team was successful and
won by a large margin.
During the trip home Jack began to feel worse. When
they arrived at Clarinda he requested to be taken to the
hospital. Jack was hospitalized and diagnosed as having
suffered a myocardial infarction.
Jack's primary treating cardiologist was Tom V. Pagano,
M.D. Jack underwent an angioplasty procedure. He had
coronary artery disease. After approximately eight weeks,
he was allowed to return to work. He has continued to
perform his customary duties without serious problems.
When deposed, Jack attributed his heart attack to
stress at work. He stated that the company was laying off
people and that he and his boss didn't see eye to eye on
many things (Joint Exhibit 26, page 53). From the record
made at hearing, there was no evidence showing Jack to have
had any great amount of psychological stress associated with
his work. There was no suggestion that he had received
unfavorable performance appraisals, reprimands, threats,
notice of layoff or anything which might be considered to be
significantly stressful. It would be expected that Jack was
assigned work and was required to perform that work but
there is no indication that the workload was in any manner
oppressive or unreasonable. There is no indication that
Jack's work performance was considered to be unreasonable in
any manner. There is nothing in the record to indicate that
Jack was or was as anything other than a good, valued
employee.
Jack Woldruff, at the time of the heart attack,
exhibited a number of characteristics commonly considered to
be risk factors for producing a heart attack. He was
overweight and consumed a great deal of fatty food. He had
hypertension and diabetes. After the heart attack occurred,
he was found to have blockage of one of his coronary
arteries and deposits in others. As indicated by Paul From,
M.D., in his deposition, claimant clearly had preexisting
coronary artery disease. He would not have had the
myocardial infarction if he had not been afflicted with
coronary artery disease (Jt. Ex. 25, pp. 15-18).
Page 3
On the day the heart attack occurred, Jack was engaging
in his normal employment activities. The record does not
show any emergency situation. There is no indication that
he was in any manner being rushed or compelled to perform at
anything other than his own pace of work. There is nothing
to indicate that the physical exertional requirements of his
work activities were anything abnormal in comparison to his
usual work. From the record made, it appears as though the
actions included things such as walking, bending, carrying
moderate weights, climbing ladders and working with hand
tools. Nothing in the record shows any of these activities
to have been particularly strenuous or to have required
anything other than mild to moderate physical exertion.
Jack was not rousted out of bed in the middle of the night.
He was not working in any type of inclement weather.
There is a controversy in the record regarding when the
myocardial infarction actually occurred. Paul From, M.D., a
specialist in internal medicine, was employed by defendants
for purposes of expressing an opinion in this litigation.
He expressed the opinion that the infarction probably
occurred between 7:00 and 8:00 p.m. on the evening of
October 31. He also felt that there was no causal
connection between Jack's work and the onset of the
myocardial infarction (Jt. Exs. 15 and 16). When deposed,
Dr. From stated that work exertion or stress can be a factor
in producing a myocardial infarction but that it must be an
unusual exertion (Jt. Ex. 25, pp. 34-35). Dr. From also
stated that in view of Jack's preexisting coronary artery
disease, the heart attack could have occurred at any time
(Jt. Ex. 25, pp. 22-23).
Dr. Pagano felt that the infarction had occurred during
the mid-morning of October 31, 1990. He also reported that
additional damage could have occurred during the evening
football game (Jt. Ex. 13). Dr. Pagano also reported that
claimant's exertion during work precipitated the myocardial
infarction (Jt. Exs 12 and 14). Dr. Pagano felt that
continuing to work following the onset of symptoms probably
increased the degree of damage which occurred (Jt. Ex. 14).
That same exhibit seems to indicate that the exertions of
his work are greater than his nonwork daily activities.
Claimant was also evaluated by Nosrat A. Massih, M.D.,
another cardiologist. Dr. Massih expressed the opinion that
the myocardial infarction was caused and aggravated by
mental and physical stress associated with Jack's employment
(Jt. Exs. 18, 19 and 20).
There is nothing in the records of Dr. Massih which
gives any indication as to what parts of Jack's work were
considered as being physically or emotionally stressful.
There is nothing in the records of Dr. Pagano which
indicates that he was aware of claimant's actual physical
exertions at his employment on October 31, 1990, or of
claimant's typical nonemployment activities and exertions.
From the record made at hearing, it appears as though
Jack's employment was not particularly emotionally
stressful. All employment and all interaction with other
Page 4
individuals, be they co-employees, bosses, neighbors or
relatives, commonly involves some level of stress. Normal
employment and normal nonemployment life both involve some
level of physical exertion. It is quite common for any type
of work to involve some degree of walking, carrying, bending
and similar activities. There is nothing remarkable about
the physical activities performed by Jack Woldruff on
October 31, 1990, in association with his employment.
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. 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. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
Aggravation of a preexisting condition is one manner of
sustaining a compensable injury. While a claimant is not
entitled to compensation for the results of a preexisting
injury or disease, its mere existence at the time of a
subsequent injury is not a defense. Rose v. John Deere
Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the
claimant had a preexisting condition or disability that is
materially aggravated, accelerated, worsened or lighted up
so that it results in disability, claimant is entitled to
recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115
Page 5
N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co.,
253 Iowa 369, 112 N.W.2d 299 (1961).
Iowa claimants with preexisting circulatory or heart
conditions are permitted, upon proper medical proof, to
recover workers' compensation benefits where the employment
contributes something substantial to increase the risk of
injury or death. The employment contribution must take the
form of an exertion greater than nonemployment life.
Sondag, 220 N.W.2d 903. The comparison, however, is not
with the employee's usual exertion in employment, but with
exertions of normal nonemployment life of this or any other
person. Sondag, 220 N.W.2d at 905. These exertions may be
physical or emotional. Swalwell v. William Knudson & Son,
Inc., II Iowa Industrial Commissioner Report 385 (App.
1982). The Sondag rule is favored by Professor Larson in
his treatise on workers' compensation. See 1A Larson
Workmen's Compensation Law, section 38.83 at 7-172.
According to Professor Larson, the causation test is a
two-part analysis. First, medical causation must be
established. That is, medical experts must causally relate
the alleged stress, whether emotional or physical, to the
heart injury. Second, legal causation must be established.
That is, the fact finder must determine whether the
medically-related stress is more than the stress of everyday
nonemployment life.
The legal standards involve tests to be used based upon
whether the individual has a previously healthy heart or a
previously diseased heart. As a practical matter,
individuals with healthy hearts do not have heart attacks.
While there are likely some rare occasions where extreme
stress or exertion produces a heart attack in an otherwise
healthy individual, the overwhelming majority of heart
attack cases involve individuals with preexisting coronary
artery disease, many of whom had no knowledge of the
diseased condition prior to the time that the heart attack
occurred.
In this case, it is readily apparent that Jack Woldruff
had preexisting coronary artery disease. It had not been
diagnosed or known to him or to any of his physicians prior
to the time that the heart attack occurred but it
nevertheless existed. It has been suggested in some agency
decisions that if the preexisting coronary disease has not
been previously diagnosed, the legal standard to be applied
when analyzing compensability is that of a person with a
previously healthy coronary artery system. That basis for
analysis is inconsistent with the Iowa Supreme Court
precedents. The time the coronary artery disease is
diagnosed is immaterial. The ultimate fact of whether or
not there was preexisting coronary artery disease is what
controls the analysis of compensability.
In the state of Iowa, if the work exceeds the normal
exertions of the employment compensability can be found. In
this case, however, there is nothing in the record which
shows the exertions of October 31, 1990 to have been
Page 6
unusually strenuous. Clearly, the physical exertions that
Jack Woldruff experienced at his employment on that day were
quite normal for his employment. Carrying the ladder is
something that he performed on a daily basis. The ladder
was estimated to weigh only 50 or 60 pounds.
It is clear from the record of this case that the
exertions Jack Woldruff engaged in at his employment on
October 31, 1990 were the usual exertions of that
employment. Nothing unusual has been suggested or proven.
Compensation can be awarded if the work ordinarily
requires heavy exertions which take the form of exertion
greater than that of normal nonemployment life. The
standard for comparison of normal nonemployment life is not
particularly definite. There are individuals who, in their
nonemployment lives, run in marathons, rebuild their homes,
mow lawns, shovel snow, play tennis and engage in a number
of forms of quite substantial physical exertion. On the
other hand, there are those who live in apartments or
condominiums and do nothing more strenuous than walk a few
steps on what is essentially level ground between the door
of their dwelling and their automobile, never carrying more
than a few pounds of weight at any time. With regard to
emotional stress, there are some individuals who live a very
complacent life off the job. They have no conflicts with
spouses, neighbors or relatives. They are financially
secure and even have a good relationship with their teenage
children and in-laws. Other individuals live in a state of
constant turmoil with ongoing altercations with neighbors,
harassment from bill collectors and domestic discord.
The standard for comparison is not the individual's
nonemployment life. It is the normal nonemployment life of
a normal person in our society. If a particular claimant is
one of the individuals who falls within the extremes of
exertion or lack thereof, such does not change the legal
standard for comparison. It may, however, have some impact
upon the factual question of whether or not the stress or
exertion did in fact precipitate the heart attack, but it
does not change the legal standard for comparison.
The normal nonemployment life which constitutes the
correct legal standard contains none of the previously
mentioned extremes. Nonemployment life includes activities
such as mowing a lawn, carrying groceries, shoveling snow,
playing golf, cheering at sporting events, performing minor
home and vehicle repairs, cleaning house, doing laundry,
lifting small children, swimming, bicycling, walking and
other similar activities which provide a mild to moderate
level of physical exertion. Normal nonemployment life
likewise includes some level of emotional stress. It is
necessary to plan one's time, manage one's finances and deal
with other individuals who have ideas and beliefs which are
contrary to one's own. Mere tolerance of others can at
times be quite stressful, regardless of the circumstances.
Neighbors have barking dogs and noisy stereos. Vehicles
with noisy exhausts travel on the street in front of one's
Page 7
home. It is necessary to decide which relatives will be
visited for certain holidays. In short, normal
nonemployment life carries with it emotional stress.
One of the very important factors when defining the
level of stress or exertion of normal nonemployment life is
the fact that the individual has considerable control
regarding the amount of stress or exertion which they choose
to accept. One can typically set his own pace when mowing
the lawn. If it is extremely hot, he can rest whenever he
chooses. In normal nonemployment life, one is able to
protect himself from the extremes of weather. There are
typically no supervisors and no productivity standards to
meet. In general, in normal nonemployment life, a person is
able to start and stop activities as they desire and to
perform them at their own pace.
The level of exertion of normal nonemployment life is
not a matter which falls exclusively into the realm of
expert testimony. The types of things that people do in
their normal nonemployment life is a matter of common
knowledge and experience. While some type of expert
testimony might be available to quantify the exertional
requirements of various activities by objective tests such
as measurement of calories expended or other objective
measurements of the amount of work or exertion actually
performed, it is quite proper to rely upon common knowledge
and experience to recognize what is within the realm of the
stresses and exertions of normal nonemployment life of a
normal individual. It includes not only the nature of the
activity but also the rate or pace at which the activity is
performed. For example, playing basketball can be quite
strenuous if it involves running up and down a court at full
speed. Briar Cliff College v. Campola, 360 N.W.2d 91 (Iowa
1984). Playing basketball can also be not at all strenuous
if it involves merely shooting baskets.
In this case, it is not necessary to determine
precisely when the actual myocardial infarction occurred.
Clearly, the infarction or the events leading up to it were
underway at the time Jack was handling the ladder on the
morning of October 31, 1990. The actual infarction might
not have occurred at that time but if it did not, the
sequence of events which would ultimately lead to it had
been placed into motion. There is some question with regard
to whether or not the activities in which Jack had engaged
involved sufficient exertion to precipitate a myocardial
infarction. Coronary artery disease is known to be a
progressive condition. It develops to the point that it can
be sufficiently severe that a myocardial infarction can
occur at any time without any identifiable precipitating
cause or factor. The closer one approaches in the
development of the disease to that point in time the less is
the amount of exertion that is required to precipitate a
myocardial infarction. It is apparent that Jack Woldruff's
coronary artery disease had progressed to the point that it
required little, if any, physical exertion to precipitate
Page 8
the myocardial infarction that occurred. As with the time
that the infarction actually occurred, it is likewise
unnecessary to determine whether or not the physical
exertion of work on October 31, 1990 actually precipitated
the infarction. That is so because the level of exertion
has not been shown to be greater than that of normal
nonemployment life.
A third possible means of compensability arises when an
individual has a heart attack that is not caused by work but
feels compelled to continue working rather than seek medical
care and sustains further damage. Varied Enterprises, Inc.
v. Sumner, 353 N.W.2d 407 (Iowa 1984). In this case, there
is no clear indication that there is anything other than a
possibility that further damage might have occurred from the
claimant continuing to work after the onset of symptoms.
Further, there is nothing to indicate that claimant felt
compelled to continue working and therefore delayed seeking
medical care out of some sense of work ethic or duty to his
employer. He was in a situation where he could have readily
driven to seek medical care if he had chosen to do so.
Every indication is that he thought he had indigestion and,
therefore, did not consider it to be a reason for leaving
work or seeking medical care.
When viewing the record as a whole which was made in
this case, it is determined that the claimant has failed to
prove by a preponderance of the evidence that the physical
or emotional stress associated with his employment on or
about October 31, 1990 provided a level of stress or
exertion that was greater than that of normal nonemployment
life. There is nothing in the record to suggest that the
stress or exertion was in any way greater than that which
was typical for Jack's work.It is possible that he kept
working after its onset and that doing so caused damage.
Neither of those facts are proven by a preponderance of the
evidence, however. It is therefore concluded that Jack
Woldruff has failed to prove by a preponderance of the
evidence that his heart attack was an injury which arose out
of and in the course of his employment or that it is
otherwise compensable.
Page 9
ORDER
IT IS THEREFORE ORDERED that claimant take nothing from
this proceeding. The costs of this action are assessed
against claimant pursuant to rule 343 IAC 4.33.
Signed and filed this ____ day of May, 1993.
________________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Sheldon M Gallner
Attorney at Law
803 Third Ave
Council Bluffs IA 51502
Ms Judith Ann Higgs
Attorney at Law
701 Pierce St Ste 200
P O Box 3086
Sioux City IA 51102
1108.10; 1402.30;
2202; 2206
Filed May 26, 1993
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JACK WOLDRUFF,
Claimant,
vs.
File No. 967409
GTE
A R B I T R A T I O N
Employer,
D E C I S I O N
and
THE KEMPER GROUP,
Insurance Carrier,
Defendants.
___________________________________________________________
1108.10; 1402.30; 2202; 2206
Claimant failed to introduce evidence showing that the level
of stress for exertion associated with his employment had
precipitated his heart attack. There was really no serious
suggestion of psychological stress. His physical activities
consisted of mild to moderate exertion. An analysis was
made of what is meant by "normal nonemployment life" when
comparing exertions for purposes of determining
compensability. It was held to mean the normal
nonemployment life of a normal individual which includes
stress and physical exertion. For purposes of determining
whether the individual has a previously diseased heart the
fact of whether or not it was previously diagnosed is
immaterial.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
HELEN PATTERSON, :
:
Claimant, :
:
vs. : File Nos. 997270
: 967695
QUALITY INN, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
UNITED STATES FIDELITY & :
GUARANTY CO., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition
of claimant, Helen Patterson, against her employer, Quality
Inn and its insurance carrier, United States Fidelity and
Guaranty Company, defendants. The case was heard on May 6,
1993 at the Webster County courthouse in Fort Dodge, Iowa.
The record consists of the testimony of claimant. The
record also consists of claimant's exhibits 1-3, and joint
exhibits A-E and F29-86, 98, 106, 107, 127-145. The record
also consists of the testimony of claimant.
ISSUES
The issues to be determined are: 1) whether there is a
causal relationship between the work injury and any
permanent disability; and 2) whether claimant is entitled to
any permanent partial disability benefits.
FINDINGS OF FACT
The deputy, having heard the testimony and considered
all the evidence, finds:
Claimant is 45 years old. She is single. Claimant
graduated from high school in 1966. She attended college
for 3 1/2 years at both Iowa Central Community College
and Mankato State College. Claimant holds an Iowa license
to practice as a Licensed Practical Nurse. Her certificate
is currently inactive. She has not been actively employed
as a nurse for nine years. Claimant last worked as a LPN in
1984. She left the profession because of stress on the job.
She testified in her deposition that she had no desire to
return to nursing.
Since leaving the nursing profession, claimant has been
Page 2
underemployed in the restaurant, bar and hotel industry.
She has worked as a waitress, bartender and hostess. Her
wages have been in the area of the prevailing minimum wage.
Claimant has also delivered morning newspapers for the past
several years.
Claimant was hired in December of 1985 to work for the
then Holiday Haus in Fort Dodge, Iowa. Later the Holiday
Haus was purchased by another owner, and it became the
Quality Inn. Originally, claimant was hired as a waitress
and a bartender. In June of 1986, claimant was promoted to
lounge manager. She worked as the lounge manager for 3 1/2
to 4 years. Her duties included opening and closing the
lounge, making deposits at the bank, ordering stock, taking
inventory, hiring part-time employees, tending bar for
parties, making pizzas and engaging in promotional work.
There was a considerable amount of lifting involved
with the position. Claimant carried ice buckets, lifted
liquor bottles, and she filled coolers with beer, although
she used a push cart to assist her. Since she was
responsible for cleaning, claimant mopped the floor each
night. She used a rag mop to assist her in her cleaning
responsibilities. Claimant also washed dishes, including
pizza pans and popcorn pans at the end of each evening.
On November 30, 1989, claimant was lifting cases of
beer from the storeroom shelves and placing the cases onto a
push cart. Overhead lifting was involved, and as claimant
was pulling a case of 24 pint bottles, she experienced "a
hot burning pain" in her shoulder. She also experienced
pain in her shoulder, arm and neck. Claimant completed her
shift. She also continued to work on succeeding days. She
did not seek medical attention at that time.
On December 7, 1989, a similar situation occurred. It
was during the evening hours and claimant was again pulling
cases of beer. She was removing cases of pint bottles from
shelves in the storeroom. She experienced the same pains in
her right shoulder. Claimant reported the injury to her
supervisor, Loretta Hoeffer.
Within the next week, defendant-employer authorized
claimant to seek medical attention from her family
physician, Charles Dagle, M.D. He diagnosed claimant as
having a right sore shoulder. (Joint Exhibit F, page 128)
He ordered a right shoulder arthrogram. The arthrogram
showed a normal right shoulder. (Jt. Ex. F, p. 29) Dr.
Dagle treated claimant conservatively for a period of time.
He then referred claimant to an orthopedic specialist when
claimant's condition did not improve.
Samir R. Wahby, M.D., examined claimant on March 23,
1990. He wrote the following in his report of March 28,
1990:
Exam today revealed pain and tenderness over the
anterior aspect of her right shoulder with
increased pain and tenderness on rotation. Pt was
told that she has subacromial bursitis and was
Page 3
given Cortisone injection and she will be back for
follow up in three wks and if no improvement she
will be scheduled for arthroscopy of her right
shoulder.
(Jt. Ex. F, p. 86)
In May of 1990, defendant-employer terminated
claimant's employment. The termination was unrelated to
claimant's work injuries. She was terminated because of
disagreements between claimant and her immediate supervisor.
In a matter of days she was again employed as a waitress and
a bartender in another hotel situation. Claimant has been
continuously employed in the restaurant and bar business
since her termination in May.
Claimant sought a second opinion from another
orthopedic specialist. On June 26, 1990, claimant saw
Robert J. Weatherwax, M.D. (Jt. Ex. F, p. 133) Basically,
Dr. Weatherwax concurred with the opinion of Dr. Wahby.
Claimant testified that subsequent to receiving her
cortisone injection, her pain subsided for a period of time.
However, the pain returned. Claimant continued follow up
care with Dr. Wahby. Later Dr. Wahby performed a right
shoulder arthroscopy and acromioplasty. The surgery
occurred on November 6, 1990. In his post-surgical report,
Dr. Wahby opined that:
FINAL DIAGNOSIS:
Subacromium bursitis, status post arthroscopy
right shoulder and arthroscopy acromioplasty.
Complications, infections: None.
The patient was admitted to the hospital for
subacromial bursitis and pain and discomfort of
her shoulder. The patient was taken to the
operating room and had shoulder arthroscopy and
acromioplasty. The patient did very well and
started ambulation the same day. She will be sent
home today with Tylenol #3 for pain and she will
be seen for follow up in my office in one week.
(Jt. Ex. F, p. 63)
Claimant continued with follow up care, including home
exercises to improve her range of motion. Claimant
progressed positively for a period of time. Dr. Wahby
released claimant to return to work as of December 10, 1990.
(Jt. Ex. F, p. 77) Then she experienced pain in the right
shoulder. She returned to Dr. Weatherwax for another
opinion.
In his note of June 18, 1991, Dr. Weatherwax wrote:
OBJECTIVE: On examination, she has some mild
restriction of internal and external rotation with
very early frozen shoulder syndrome. She has full
Page 4
abduction, forward flexion and extension. She has
pain on abduction and still a positive impingement
sign. The collar bone is not tender at the AC
joint.
Arthrograms and xrays previously have been
negative.
RECOMMENDATIONS: It would be my feeling that a
trial of at least one steroid injection and
exercise for a month would be appropriate not only
to see if we can eliminate the pain, but improve
some of the early frozen shoulder symptoms. If
this did not resolve her symptoms, I would then
offer open decompression as I think that this is a
better technique unless you are one of the very
few that arthroscopically has had a great deal of
experience with bursal procedures. Provided her
exercises to work on the motion. Would suggest
steroid injection into the bursa at least once to
see if it would resolve the symptoms and get her
on her way to recovery.
(Jt. Ex. F, p. 132)
One month later claimant returned to Dr. Wahby for
another examination. She was again experiencing pain. Dr.
Wahby gave her a cortisone and Depo Medrol and Xylocaine
injection. Claimant returned to Dr. Wahby one month later.
Upon examination of claimant, Dr. Wahby noted there was full
range of motion of the right shoulder.
In April of 1992, claimant again saw Dr. Wahby. He
injected her with a second cortisone shot. Two months later
another injection was administered to her.
In December of 1992, Dr. Wahby authored the following
report:
In answering your letter dated December 16,
1992, as you know I have been taking care of Ms.
Patterson for the last 2 1/2 years. The patient
has subacromial bursitis of her right shoulder for
which she underwent arthroscopy of the right
shoulder and debridement and the patient improved
some following the surgery however later on she
started having more pain and discomfort of her
right shoulder. The patient redeveloped the
subacromial bursitis that she had.
The patient came yesterday to my office
complaining of increased pain and discomfort of
her shoulder as well as tingling and numbness of
both hands and fingers. Examination revealed that
she has pain and tenderness over the anterior
aspect of the right shoulder although she has
excellent motion of her shoulder she still had
pain and discomfort during range of motion. The
patient seems to have an intact rotator cuff.
Examination of both hands revealed that the
Page 5
patient has positive Tinel and Phalen signs
however she does not have any muscle wasting or
atrophy.
The patient has subacromial bursitis of her
right shoulder and she will require an
acromioplasty and decompression of the right
shoulder and she will be scheduled for EMG's of
both hands and fingers and if they show that she
has carpal tunnel syndromes then she will be a
candidate for bilateral carpal tunnel syndrome
releases. The patient was given a Depo Medrol and
Xylocaine injection in the right shoulder and she
will be seen back for follow up after obtaining
the EMG's.
(Claimant's Exhibit 1)
In January of 1993, defendants sent claimant to Dr.
Wirtz, M.D. (first name unknown), for purposes of an
examination and an evaluation. In his report of January 15,
1993, Dr. Wirtz opined:
Exam shows she is tender in the right shoulder on
the medial aspect of the bicepital tendon which is
intact. The biceps is 5/5 in strength. The
puncture wounds are small in nature and they are
three in nature and are well healed. The forward
flexion is 180/180 degrees, external rotation
90/90 degrees and internal rotation 45/60 degrees.
Extension 45/45 degrees and abduction 135/135
degrees.
...
Diagnosis:
1. Status postop arthroscopic decompression,
right shoulder.
Regarding 12/17/92 correspondence and review, the
following would be conclusive.
The right shoulder demonstrates loss of motion
with internal rotation which would relate to a 5%
impairment of the right upper extremity.
The symptoms in the shoulder area not requiring
strong medications or physical therapy would be
minimal in restriction of function.
Over-shoulder-height activity would be the only
restriction with the right upper extremity.
(Jt. Ex. F, pp. 134 & 136)
Claimant's attorney then sent claimant to another
physician for the purpose of examination and evaluation.
Claimant saw David R. Archer, M.D., a family practice
physician, on July 6, 1993. Dr. Archer authored a report,
dated, July 12, 1993. In his report, Dr. Archer opined:
Page 6
On physical examination, her general physical exam
is benign. Neurologic exam, likewise, is within
normal limits with normal motor and sensory
testing at all levels. On orthopedic examination,
her shoulders are near level, though the left is
slightly high. She has a normal gait and station
otherwise. She carries her head somewhat forward.
Range of motion of the neck and thoracic spine is
within normal limits, as is the lumbar spine.
Examination of her shoulders reveals normal range
of motion in all plains, including internal and
external rotation at both 0 and 90o of abduction.
At this point, she seems to have improved in
internal rotation over Dr. Wirtz' exam in January
of 1993. She does, however, have mild crepitation
on exam in a post-op shoulder, and continues to
have pain, especially with overhead lifting. I,
therefore, concur with Dr. Wirtz.
Impression: we have a 45 year-old, white, female
bar-maid with an old chronic bursitis, status-post
arthroplasty, who has made about all the recovery
that I think she is doing [sic] to make.
Currently, her range of motion is full, but the
right shoulder still hurts. It seems tighter than
the left shoulder, and exhibits mild crepitance.
According to the AMA Guides to Permanent
Impairment, 3rd Edition, revised, this would
translate into 6% upper extremity impairment, or
4% whole person impairment. This is a chronically
painful joint, and overhead lifting will probably
not be tolerable as has been noted previously.
Apparently, the patient had a good work record
prior to the injury of November, 1989, and based
on this history, I would, therefore, conclude that
her current shoulder impairment is attributable to
that injury.
I have seen this patient once for the purpose of
this evaluation and have not offered treatment.
However, I do think she could benefit from
standard chronic pain therapy, and have
recommended that she see her regular physician to
reconsider pain medication, and this was discussed
with her....
(Cl. Ex. 2, p. 2)
CONCLUSIONS OF LAW
The first issue to address is whether the work injury
on November 30, 1989 is the proximate cause of any permanent
condition. It is the determination of the undersigned that
the initial injury to claimant's right shoulder has not
resulted in any permanent condition to claimant's right
shoulder. As has been stated on numerous occasions, 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
Page 7
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).
With respect to the first work injury, claimant had
been able to return to her same position following the work
injury. She had normal range of motion. She was treated
conservatively, and she sufficiently recovered so that she
could return to work and perform the same job
responsibilities.
The situation is different with respect to the second
work injury which occurred on December 7, 1989. Claimant
has proven by a preponderance of the evidence that she has a
permanent disability to her right shoulder as a result of
this work injury. After the second injury, claimant again
engaged in conservative treatment. However, the
conservative treatment did not have positive results.
Eventually, claimant had surgery. There were problems. The
surgeon found dense fibrous tissue with bony fragments and
calcification. (Jt. Ex. F, p. 39) Claimant complained of
tenderness in her right shoulder. She had increased pain on
range of motion. Dr. Weatherwax found that claimant had
some mild restriction of internal and external rotation and
that she had the early signs of a frozen shoulder syndrome.
(Jt. Ex. F, p. 132) Dr. Wirtz found that claimant had a
loss of motion with respect to internal rotation. (Jt. Ex.
F, p. 136) He restricted claimant from working above the
shoulder level with the right upper extremity. Dr. Archer
found that claimant's shoulder was tighter and that she had
mild crepitance. (Cl. Ex. 2, p. 2) Two physicians opined
that claimant had permanent impairments totaling five to six
percent of the upper extremity. Claimant has met the
requisite burden of proof. She has sustained a permanent
condition.
The next issue to address is the nature of claimant's
permanent condition. Claimant alleges her condition is
related to the body as a whole. Consequently, she asserts
that she has an industrial disability. Defendants maintain
claimant has a scheduled member injury.
The right of an employee to receive compensation for
injuries sustained is statutory. The statute conferring
Page 8
this right can also fix the amount of compensation payable
for different specific injuries. The employee is not
entitled to compensation except as the statute provides.
Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
Compensation for permanent partial disability begins at
termination of the healing period. Section 85.34(2).
Permanent partial disabilities are classified as either
scheduled or unscheduled. A specific scheduled disability
is evaluated by the functional method; the industrial method
is used to evaluate an unscheduled disability. Simbro v.
Delong'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).
An injury to a scheduled member may, because of
aftereffects or compensatory change, result in permanent
impairment of the body as a whole. Such impairment may in
turn be the basis for a rating of industrial disability. It
is the anatomical situs of the permanent injury or
impairment which determines whether the schedules in section
85.34(2)(a) - (t) are applied. Lauhoff Grain v. McIntosh,
395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American,
Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber
Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v. Shores
Co., 222 Iowa 272, 268 N.W. 598 (1936).
When disability is found in the shoulder, a body as a
whole situation may exist. Alm v. Morris Barick Cattle Co.,
240 Iowa 1174, 38 N.W.2d 161 (1949). In Nazarenus v. Oscar
Mayer & Co., II Iowa Indus. Comm'r Rep. 281 (Appeal December
1982 ); a torn rotator cuff was found to cause disability to
the body as a whole.
It is recognized that this division formerly and
consistently compensated shoulder injuries industrially on
the basis that such injuries involved disability to the body
as a whole. Streeter v. Iowa Meat Processing Company,
(Appeal Decision, March 31, 1989).
A more recent appeal decision has emphasized that it is
the situs of disability that is determinative. In Prewitt
v. Firestone Tire and Rubber Company, (Appeal Decision,
August 12, 1992), the industrial commissioner has held that
where the treating surgeon testified that claimant had full
range of motion and full strength of the shoulder following
an injury and surgery, then claimant had sustained an injury
to the arm rather than to the shoulder. Upon remand, the
Industrial Commissioner again determined that claimant's
injury was not an injury to the body as a whole. In an
appeal decision, and after a remand from the Iowa District
Court, the industrial commissioner has again held that
claimant's injury was to the upper extremity and not to the
body as a whole. (Appeal Dec. on remand June 30, 1993)
In another appeal decision, the industrial commissioner
has held that where claimant's condition consisting of hand,
arm, and shoulder symptoms are found to extend to the body
as a whole even though the physicians' ratings are to the
upper extremity. Thompkins v. John Morrel & Company,
Page 9
(Appeal Dec. February 22, 1993).
In the instant case, claimant has established that her
injury falls within the class of injuries to the shoulder
which extends to the body as a whole. Dr. Wirtz notes there
is a loss of range of motion. The surgical procedure
extends into the body as a whole. More than just the upper
extremity is involved. The acromin is involved too.
Claimant is precluded from working above the shoulder level.
The mere fact that the impairment ratings use the upper
extremity to measure the impairment of the shoulder does
not, in and of itself, indicate that the impairment or
disability is restricted to a schedule. Pullen v. Brown and
Lambrecht Earthmoving, Inc., II Iowa Ind. Comm'r Rpt. 308
(App. Dec. 1982); Franzen v. Mid-Valley, Inc., Vol 1., No.
4, State of Iowa Indust'l Comm'r Decisions, 834 (1985). It
is common for physicians to rate both shoulder and hip
injuries with reference to the upper and lower extremity.
The shoulder is considered to be an element of the upper
extremity. AMA Guides, 3d Edition, chapter 3, section 3.1g,
page 31.
This case is analagous to the Fullerton case, supra
where former Industrial Commissioner Robert Landess writes:
A disability to the shoulder is a disability to
the body as a whole.... As claimant has an
impairment to the body as a whole, an industrial
disability had been sustained. (Fullerton, supra,
at 135).
With respect to the present case, there is sufficient
legal authority to support a conclusion that the second
injury is an injury to the body as a whole. It is to be
compensated using the industrial method.
The final issue to address is whether claimant has
sustained an industrial disability. 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, experience 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.
Page 10
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
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.
It is determined that claimant has sustained a 10
percent industrial disability. She is entitled to 50 weeks
of permanent partial disability benefits at the stipulated
rate of $155.25 per week and commencing from December 13,
1990.
Two physicians have determined functional impairment
ratings for claimant. The ratings are in the range of four
percent. Claimant is precluded from engaging in work which
involves working above shoulder level. Some manufacturing
jobs are no longer available to her. Claimant, however is
able to return to the same type of employment which she had
held prior to the work injury. Claimant can accommodate her
restriction of no work above shoulder level. She has
learned to use carts, and to seek the assistance of
co-employees when reaching is involved. It is acknowledged
that claimant had been terminated by defendant-employer.
However, the termination was in no way related to her work
injury or to her work restriction. Even after she was
Page 11
terminated, claimant was able to acquire similar employment
in only a matter of days.
Claimant maintains she is no longer physically able to
work as a licensed practical nurse and that as a consequence
she has a loss of earning capacity. It is not known whether
claimant can obtain employment in the nursing profession.
Claimant has not sought employment in the field for a number
of years. The argument that her earning capacity has been
reduced because she is no longer able to practice nursing is
without merit. Claimant has been underemployed since 1985.
Her decision to forego a career in nursing is totally
unrelated to her right shoulder injury. Previous to her
employment with defendant-employer, she abandoned the
nursing profession. She testified she left nursing because
of stress. Her decision to work in the restaurant and bar
business is unrelated to her injury in December of 1989.
She is well aware that the hospitality industry is
notoriously low with respect to its wage scale. For four
years prior to the work injury, claimant had just been
earning minimum wages plus tips. After the accident, she
was still earning minimum wages plus tips. In actuality,
she was earning more per hour after the second work injury
because the state and federal minimum wage had increased.
It is recognized that claimant is precluded from
certain minimum wage jobs such as cleaning walls, painting
homes, or certain warehouse positions in the retail industry
where she is required to work above shoulder level.
However, there are still plenty of jobs in the service
industry which pay minimum wages or slightly better.
Employment is available to claimant.
While claimant does not have a college degree, she does
have 3 1/2 years of a college education. She has no desire
to complete a degree requirement. Her level of education
far exceeds the requirements of a minimum wage level job.
Claimant is articulate, friendly and presents herself well.
She is neat. Her personality is pleasing. She has had
prior experience in sales and she has some management
skills. Her earning capacity is not as greatly reduced as
claimant maintains. There are still plenty of entry level
jobs available to her. She is capable of handling more
skillful positions. Probably, there are more than entry
level jobs available to her, but claimant has decided to
remain underemployed.
Therefore, in light of the above, coupled with this
deputy's personal observations and expertise, it is the
determination of this deputy that claimant has sustained a
10 percent permanent partial disability.
ORDER
THEREFORE, it is ordered that:
Defendants shall pay unto claimant fifty (50) weeks of
permanent partial disability benefits at the stipulated rate
of one hundred fifty-five and 25/l00 dollars ($155.25) per
week and commencing on December 13, 1990.
Page 12
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 defendants pursuant to rule 343 IAC
4.33.
Defendants shall file a claim activity report as
requested by this division and pursuant to rule 343 IAC
4.33.
Signed and filed this ____ day of September, 1993.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Jerry Schnurr, II
Attorney at Law
805 Central Ave.
P.O. Box 952
Fort Dodge, Iowa 50501-0952
Ms. Iris J. Post
Attorney at Law
2222 Grand Avenue
P.O. Box 10434
Des Moines, Iowa 50306
1803; 1803.1; 1803
Filed September 10, 1993
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
HELEN PATTERSON,
Claimant,
vs. File Nos. 997270
967695
QUALITY INN,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
UNITED STATES FIDELITY &
GUARANTY CO.,
Insurance Carrier,
Defendants.
___________________________________________________________
1803; 1803.1
Claimant sustained an injury to her right shoulder. Surgery was
performed by Dr. Wahby. The body side of the injury was affected
since the acromion was involved. Two evaluating physicians rated
claimant has having an impairment to the right upper extremity.
Claimant had a reduced range of motion. She was precluded from
engaging in work above shoulder level.
It was held that claimant sustained an injury to the body as a
whole. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986) was
followed. In Lauhoff, claimant was determined to have an
industrial disability since the injury affected the "body side"
of the shoulder joint. In the present case, claimant's body side
was affected.
1803
Claimant worked in a restaurant and a lounge. After she was
injured, she returned to a similar job at the same rate of pay or
higher. Her doctor restricted claimant from working above
shoulder level.
Claimant had 3 1/2 years of college, although she had no degree.
She had been licensed by the State of Iowa as a Licensed
Practical Nurse. However, four years before her work injury,
claimant left the nursing profession because of stress. Her
decision to abandon her career was unrelated to her work injury.
Since leaving the nursing profession, claimant had been
underemployed in the hospitality industry. Her subsequent
employment in the restaurant and lounge business involved entry
level jobs which were compensated at the minimum wage level plus
tips.
After her work injury, claimant could still perform work in many
entry level positions. Some manufacturing, warehousing, or
cleaning positions were not available to her, since she could not
work above shoulder level. However, there were numerous jobs in
the service industry which were still open to her. Claimant's
decision to remain underemployed was a personal one and not
related to her work injury. Claimant made no attempts to seek
employment which paid more than the prevailing minimum wage.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
SHIRLEY GUNSOLLEY, :
:
Claimant, :
:
vs. :
: File No. 967773
ST. LUKE'S HOSPITAL, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
FARM BUREAU MUTUAL :
INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Shirley
Gunsolley, claimant, against St. Luke's Hospital, employer,
hereinafter referred to as the Hospital, and Farm Bureau Mutual
Insurance Company, insurance carrier, defendants, for workers'
compensation benefits as a result of an alleged injury on
November 1, 1990. On September 20, 1994, a hearing was held on
claimant's petition and the matter was considered fully submitted
at the close of this hearing.
The parties have submitted a hearing report of contested
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 hearing report, the parties have stipulated
to the following matters:
1. On November 1, 1990 claimant received an injury arising
out of and in the course of employment with the Hospital.
2. Claimant is not seeking additional temporary total or
healing period benefits in this proceeding.
3. The type of disability is an industrial disability to
the body as a whole.
4. At the time of injury claimant's gross rate of weekly
compensation was $491.60; she was single; and, she was entitled
to two exemptions. Therefore, claimant's weekly rate of
compensation is $298.51 according to the Industrial
Commissioner's published rate booklet for this injury.
Page 2
5. Medical benefits are not in dispute.
ISSUES
The only issue submitted by the parties for determination in
this proceeding is the extent of claimant's entitlement to
permanent disability 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 disability. From
her demeanor while testifying, claimant is found credible.
Claimant worked for the Hospital as a surgical nurse from
March 1986 until 1992 at which time she left due to ongoing
chronic pain and she never returned. Claimant earned $12.88 per
hour in this job at the time of the alleged injury herein.
Although she completed a two year registered nurse program at a
local community college, claimant began her employment at the
Hospital as a nurse's aid. After passing her state board exams a
few weeks later, she was transferred to surgery as a registered
nurse. Claimant worked both as a circulating nurse and as a
scrub nurse. She generally received very good performance
ratings and was given additional responsibilities such as head of
the organ transplant team; head of the urology team; and proctor
or trainer of new nurses. At the time of injury, claimant was
participating in a new first surgical assistant program in which
she would eventually qualify as a surgical assistant. This
program arose because insurance companies were refusing to pay
family doctors to assist in surgical procedures. Claimant was
compelled to drop from this program after the injury due to her
work activity restrictions.
The injury in November 1990 was to the low back after
lifting a very heavy cadaver following an organ transplant.
Claimant was treated and evaluated by a number of physicians,
including Richard Krieter, M.D., an orthopedic surgeon; Byron
Rovine, M.D.; Michael Cullen, M.D.; Richard Roski, M.D., a
neurosurgeon; and Timothy Millen, M.D. Claimant has undergone
extensive physical therapy including work hardening. However,
her treatment to date has remained conservative as all physicians
have rejected surgery as a treatment option. Claimant did
receive three epidural steroid injections but she stated that
these injections only temporarily relieved the pain. Despite
this conservative care, chronic pain has plagued claimant since
the injury and has prevented a return to her surgical nurse job
at the hospital.
Under direction from Dr. Kreiter, claimant made an attempt
in the spring and summer of 1991 to gradually return to her
surgical nurse job and with accommodations by the hospital staff
Page 3
in restricting her lifting. Claimant stated that without such
accommodation, she could not perform the circulating nurse duty
due to the required lifting of instrument trays weighing over 35
pounds or to scrub nurse duty due to the need for prolonged
standing without a break during surgery. Although she returned
to a full eight hour day in mid June, she was compelled by her
pain to leave work again at the end of June with a new round of
treatment and physical therapy by Dr. Roski. At that time,
claimant was experiencing great fatigue, low back and leg pain,
leg numbness and inability to sleep through the night due to
pain.
In September 1991 she was informed by the hospital that she
could not return to her surgery job without a release to full
duty. Claimant then attempted a return to other jobs at the
hospital with help from a rehabilitation nurse retained by
defendants. For a few months, claimant operated a computer
entering surgical data but this was only a temporary position.
Claimant testified that she worked at this job until her work was
completed. A claim that she abandoned that job was not
substantiated by defendants. Claimant applied for a holding room
nurse position. Although within her restrictions, she was not
hired as hospital management felt she may not be physically able
to do the work. The hospital also asked claimant to consider a
scheduling nurse position paying $10.00 per hour but claimant did
not apply stating that she did feel that she could perform the
sitting requirements. Other clerical jobs paying $5.50-6.50 per
hour were suggested but claimant stated at the hearing that she
did not feel she had to take any lower paid positions. Claimant
for a period of time also worked for a nursing home care facility
as a supervisor but this was again only temporary and part-time.
Claimant has now obtained a position as school nurse with the
Rock Island School District and earns $11.42 per hour although
she does not work in the summer and for extended vacation periods
during the year.
Claimant clearly became angry with her lack of success in
returning to work. This anger was apparent during a pain
management course in 1992. She felt resentful of the hospital's
treatment of her. Although claimant eventually completed the
program, she felt that the psychological aspects of this pain
management course were of no use to her.
It is found that the work injury of November 1, 1990 is a
cause of a significant permanent impairment to the body as a
whole. The exact percentage is not important in this industrial
disability case. More important are the activity restrictions
imposed upon claimant by her physicians. According to Dr.
Kreiter's most recent report, claimant is not able to perform
more than light to medium work with occasional lifting of 35
pounds, frequent lifting of 20-25 pounds and constant lifting of
only 10 pounds. Claimant can no longer stoop or bend more than
occasionally or to walk, stand or sit more than two hours without
a break. Given claimant's credible testimony, these restrictions
prevent her from returning to her surgery work at the hospital
and the hospital has not returned her to work in any capacity.
Although claimant probably should have at least applied for the
Page 4
scheduling nurse position, there is no reason to believe it would
have been offered to her given the failure of the hospital to
offer the holding nurse job, another position technically within
claimant's restrictions.
As a result of her work-related restrictions and
limitations, claimant has suffered a major economic loss.
Registered nurses at the hospital make currently $15.63 per hour
and work at least 40 hours a week. Claimant stated that she
routinely worked overtime. Today she makes over $4.00 per hour
less and works only 35 hours a week with extensive summer and
holiday breaks. Although her relationship with the hospital was
strained, this is understandable given claimant's situation. She
worked her way up from office nurse, to surgical tech and
eventually to registered nurse as a single mother and was making
a good living at the time of her injury. At the time of injury,
she was advancing in her profession and about to complete a
surgical assistant program. Today, she is making considerably
less. Her future in surgery has ended and continuation in
surgery was her best opportunity for advancement in her chosen
profession.
Given her age at 45 years, her potential for retraining is
limited. However, she does have a high school education with a
two year nursing degree which gives her considerable transferable
intellectual skills. But, again, her loss of opportunity and
earning capacity is substantial despite her return to the
workforce.
Claimant had a instance of back problems 15 years before
this injury but there is no evidence to suggest that she did not
fully recover from these problems and was pain free at the time
of the injury herein as claimed by claimant.
From examination of all of the factors of industrial
disability, it is found that despite her return to the workforce,
the work injury of November 1, 1990 was a cause of a 50 percent
loss of earning capacity.
CONCLUSIONS OF LAW
The question of causal connection is essentially within the
domain of expert medical opinion. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of
experts need not be couched in definite, positive or unequivocal
language and the expert opinion may be accepted or rejected, in
whole or in part, by the trier of fact. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to
such an opinion is for the finder of fact to determine from the
completeness of the premise given the expert or other surrounding
circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d
867 (1965).
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal connection,
such testimony may be coupled with non-expert testimony to show
causation and be sufficient to sustain an award. Giere v. Aase
Page 5
Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966)
Such evidence does not, however, compel an award as a matter of
law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (1974).
As the claimant has shown that the work injury was a cause
of permanent physical impairment or limitation upon activity
involving the body as a whole, the degree of permanent disability
must be measured pursuant to Iowa Code section 85.34(2)(u).
However, unlike scheduled member disabilities, the degree of
disability under this provision is not measured solely by the
extent of a functional impairment or loss of use of a body
member. A disability to the body as a whole or an "industrial
disability" is a loss of earning capacity resulting from the work
injury. Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258
N.W. 899 (1935). A physical impairment or restriction on work
activity may or may not result in such a loss of earning
capacity. Examination of several factors determines the extent
to which a work injury and a resulting medical condition caused
an industrial disability. These factors include the employee's
medical condition prior to the injury, immediately after the
injury and presently; the situs of the injury, its severity and
the length of healing period; the work experience of the employee
prior to the injury, after the injury and potential for
rehabilitation; the employee's qualifications intellectually,
emotionally and physically; earnings prior and subsequent to the
injury; age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss of
earnings caused by a job transfer for reasons related to the
injury is also relevant. See Peterson v. Truck Haven Cafe, Inc.,
(Appeal Decision, February 28, 1985).
Loss of potential employment is also a factor to consider in
assessing industrial disability. Collier v. Sioux City Comm.
Sch. Dist., Case No. 953453 (Appeal Decision filed February 25,
1994.
In the case sub judice, it was found that claimant suffered
a 50 percent loss of her earning capacity as a result of the work
injury. Such a finding entitles claimant to 250 weeks of
permanent partial disability benefits as a matter of law under
Iowa Code section 85.34(2)(u) which is 50 percent of 500 weeks,
the maximum allowable number of weeks for an injury to the body
as a whole in that subsection.
ORDER
1. Defendants shall pay to claimant two hundred fifty (250)
weeks of permanent partial disability benefits at a rate of two
hundred ninety-eight and 51/l00 dollars ($298.51) per week from
August 4, 1992.
2. Defendants shall pay accrued weekly benefits in a lump
sum and shall receive credit against this award for all benefits
previously paid.
3. Defendants shall pay interest on weekly benefits awarded
Page 6
herein as set forth in Iowa Code section 85.30.
4. Defendants 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.
5. Defendants shall file activity reports on the payment of
this award as requested by this agency pursuant to rule 343 IAC
3.1.
Signed and filed this ____ day of October, 1994.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. J. E. Tobey, III
Attorney at Law
601 Brady St STE 211
Davenport IA 52803
Mr. Michael W. Liebbe
Attorney at Law
PO Box 339
Davenport IA 52805-0339
Ms. Angela A. Swanson
Attorney at Law
5400 University Ave
West Des Moines IA 50265
5-1803
Filed October 20, 1994
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
SHIRLEY GUNSOLLEY,
Claimant,
vs.
File No. 967773
ST. LUKE'S HOSPITAL,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
FARM BUREAU MUTUAL
INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803
Non-precedential, extent of disability case.