BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
DONNA HUGHES,
Claimant,
vs. File Nos. 1023168/970641
1023169
MONTEZUMA SENIOR HOME/
HEALTH CARE OF IOWA, INC.
A P P E A L
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the deputy
and all exhibits admitted into the record, has been reviewed de novo on
appeal.
ISSUES
Defendants state the following issues on appeal:
1. Whether, and to what extent, Claimant's alleged disabilities are
causally related to the alleged injuries of November 7, 1990 and
November 10, 1990.
2. Whether any permanent partial disability which is causally related
to the alleged injuries of November 7 and November 10, 1990 is a
disability to a scheduled member or to the body as a whole.
3. Whether these Appellants are liable to Claimant for healing period
benefits for 85.27 medical expenses after January 16, 1991.
Claimant states the following issues on cross-appeal:
1. Whether the Arbitration Decision correctly held that Claimant's
disabilities are causally related to the work-related injuries of
November 7, 1990 and November 10, 1990.
2. Whether the Arbitration Decision correctly held that the injuries
were to the body as a whole, and, therefore, that Claimant sustained a
40% industrial disability.
3. Whether the Arbitration Decision correctly held that Appellants are
responsible for healing period benefits or 85.27 medical expenses for
all times in controversy.
4. Whether unpaid medical expenses set forth in Exhibit 8 should be
paid by Appellants.
5. Whether the Cross-Appellant is entitled to the full reimbursement
for the costs associated with an independent medical evaluation
governed by 85.39.
FINDINGS OF FACT
The findings of fact contained in the proposed agency decision filed
October 28, 1994 are adopted as final agency action.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency decision filed
October 28, 1994 are adopted as final agency action.
WHEREFORE, the decision of the deputy is affirmed.
ORDER
THEREFORE, it is ordered:
That claimant take nothing for file number 1023169.
That defendants shall pay claimant healing period benefits from
November 11, 1990 through December 27, 1990, and from April 17, 1991
through March 31, 1992.
That defendants shall pay claimant two hundred (200) weeks of permanent
partial disability benefits at the rate of one hundred thirty and
18/100 dollars ($130.18) per week from December 28, 1990 through April
16, 1991, and commencing again on April 1, 1992.
That defendants shall pay accrued benefits in a lump sum, and shall
receive credit for benefits previously paid.
That defendants shall pay interest on the award, as governed by Iowa
Code section 85.30.
That defendants shall pay claimant's medical expenses. Defendants
shall pay the future medical expenses of claimant necessitated by his
work injury.
That defendants shall pay the costs of this action.
That defendants shall file a claims activity report as required by the
agency.
Signed and filed this ____ day of June, 1995.
_______________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Michael W. Mahaffey
Attorney at Law
107 S 4th St.
Montezuma, IA 50171
Mr. Dave Jenkins
Attorney at Law
801 Grand Ave., Ste 3700
Des Moines, IA 50309
Mr. William D. Scherle
Attorney at Law
8th Flr Fleming Bldg
218 Sixth Ave.
Des Moines, IA 50309
5-1803
Filed June 29, 1995
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
DONNA HUGHES,
Claimant,
vs. File Nos. 1023168/970641
1023169
MONTEZUMA SENIOR HOME/
HEALTH CARE OF IOWA, INC.
A P P E A L
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
Defendants.
_________________________________________________________________
5-1803
Claimant awarded 40 percent industrial disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
DONNA HUGHES, :
: File Nos. 1023168
Claimant, : 1023169
: 970641
vs. :
:
MONTEZUMA SENIOR :
HOME/HEALTH CARE OF IOWA, :
INC.,
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by
claimant, Donna Hughes, against Montezuma Senior Home, the
employer, and Employers Mutual Insurance Companies, the
insurance carrier, both as defendants.
Claimant has filed three petitions in arbitration and
seeks workers' compensation benefits. The record in the
case consists of testimony of the claimant; claimant's
exhibits 2 through 8; and, defendants' exhibits A through L.
Due to failure to timely serve a report, claimant's exhibit
1 was excluded from the evidence, and an offer of proof was
made by claimant's attorney.
ISSUES
With respect to file numbers 970641 and 1023168, the
parties submit the following issues for resolution:
1. Whether claimant is entitled to healing period or
temporary total disability benefits, or permanent partial
disability benefits;
2. Whether claimant is entitled to certain medical
expenses as provided for under Iowa Code section 85.27;
3. Whether claimant is entitled to full reimbursement
for the costs associated with an independent medical
evaluation, which is governed by Iowa Code section 85.39;
and,
4. Taxation of costs.
Page 2
With respect to file number 1023169, the parties submit
the following issues for resolution:
1. Whether claimant sustained an injury on April 15,
1991, which arose out of and in the course of her
employment;
2. Whether claimant is entitled to temporary total
disability or healing period benefits, or permanent partial
disability benefits;
3. Whether claimant is entitled to medical benefits,
as provided for under Iowa Code section 85.27; and,
4. Taxation of costs.
FINDINGS OF FACT
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
At the time of the hearing, claimant was 54 years of
age. She is married and has one dependent child living in
the home.
Claimant did not graduate from high school, but
completed the eighth grade. She has not obtained her
general equivalency diploma, but since 1962 has been a
certified nurse's aid (CNA). At the time of the hearing,
claimant was not longer certified in this profession.
Claimant's career as a CNA began in 1958, when she
began working at the Tower Park Nursing Home in Oskaloosa,
Iowa. During the next 12 years, while raising a family, she
worked periodically for the home and in 1970 transferred to
Mahaska Manor Nursing Home. In 1990, claimant secured
employment with defendant employer, Montezuma Senior Home.
As a nurse's aid, claimant was responsible for overall
care of residents. Specifically, her duties included waking
patients and preparing them for breakfast; bathing, grooming
and dressing residents; administering some physical therapy;
preparing and helping residents into wheelchairs and Geri
chairs; assisting patients to the bathroom; changing and
making beds; and, emptying urinal bags and changing
colostomy bags.
On November 7, 1990, claimant was assisting a resident
by the name of Lee Morrow. Apparently, Mr. Morrow had a
history of errant behavior. On November 7, 1990, claimant
was assisting Mr. Morrow to breakfast. In order to
accomplish this, she and another assistant were on either
side of Mr. Morrow helping him walk down the hall. Mr.
Morrow grabbed the thumb and first three fingers of
claimant's right hand, bending them back towards her arm.
She stated that she felt pain in the hand, arm and neck, and
experienced swelling in the right hand. She finished her
shift, and visited J. Paulson, M.D., for treatment. While
the undersigned must point out that Mr. Paulson's notes are
very unclear as to the specific dates of treatment, suffice
Page 3
it to say that Dr. Paulson instituted conservative
treatment, including a wrist splint and physical therapy.
Early on, he noted that her right shoulder was "markedly
inflamed." (Defendants' Exhibit A, pages 2 through 3;
Exhibit B, page 1)
For this particular incident, claimant was never taken
off of work. However, on November 10, 1990, she had another
episode with Lee Morrow. Once again, she was helping walk
him to the dining area when he grabbed her right hand and
bent it back towards her arm. She was unable to break it
free from Mr. Morrow, and it took several coworkers to
extricate the two. Claimant testified that in order to
relieve the pressure Mr. Morrow was placing on her hand and
arm, she fell to her knees and tried to twist out of his
grasp. Once Mr. Morrow released claimant, she felt an
increased amount of pain in her right shoulder, arm and
wrist. Claimant was still under a doctor's care for the
initial incident, and she returned to Dr. Paulson on
November 19. She was taken off of work and he recommended
daily therapy at the Grinnell Hospital. (Claimant's Exhibit
4)
Apparently, claimant attempted to return to work on
several occasions, but was finally released to return to
full duty work in January of 1991. (Def. Ex. A, p. 2)
(Again, the undersigned notes that it is difficult, if not
impossible, to locate and/or read the dates contained in
Dr. Paulson's notes.)
Claimant returned to work in a neck collar, but
attempted to perform all of the duties of a nurse's
assistant.
Claimant continued to undergo physical therapy, and was
eventually referred to the University of Iowa for further
treatment due to the lack of success gained in the physical
therapy sessions. (Def. Ex. A, pp. 2-3; Def. Ex. B, pp. 2-3)
Claimant underwent x-rays of the cervical spine at the
University of Iowa. The results showed "C6-7 disc space
disease." (Cl. Ex. 3)
Claimant returned to Dr. Paulson who indicated that she
continued to complain of pain and immobility of the right
shoulder. He noted muscle weakness in the shoulder, as well
as neck stiffness and pain. He indicated that her work at
the nursing home aggravated her condition. He believed that
lifting and moving patients were beyond the type of physical
activities which claimant could perform. He did not believe
she could be retrained for any type of job, and believed
that her current disability was related to her employment.
(Cl. Ex. 6, pp. 1-2)
In July of 1991, claimant returned to Dr. Paulson after
working for two hours. He indicated that her right shoulder
had become "hyperreflexic." He noted swelling in her neck
and believe that there was some type of problem in her neck
and/or shoulder. He did not believe claimant was
malingering, and recommended an MRI. He also prescribed
Page 4
Vicodin for pain and instructed claimant to continue the use
of her TENS unit as well as ice and massage. (Cl. Ex. 6, pp.
3-4)
Eventually, claimant came under the care of Daniel J.
McGuire, M.D. His notes indicate that there were no obvious
neurological deficits in her right upper extremity. She had
good range of motion in the cervical spine, but complained
of persistent pain in both the neck and right upper
extremity. He recommended she undergo and EMG and MRI of
the neck. The results of the MRI showed a herniated disc on
the right side at the C6-7 level. The EMG showed evidence
of a right carpal tunnel syndrome. Apparently, he gave
claimant the option of whether she wanted to undergo
surgery, and stated that the "MRI says surgery would help
her, but her EMGs say surgery wouldn't help her." (Def. Ex.
D, p. 1)
Claimant elected to undergo surgery, and an anterior
cervical diskectomy on the right C6-7 level was performed on
September 17, 1991. (Cl. Ex. 5)
Six weeks later, claimant was to start physical
therapy. She continued follow-up treatment with Dr. McGuire
and continued to complain of pain in the neck and shoulder
areas. While Dr. McGuire noted that the bone graft used was
in a good position, as shown on the x-rays of the cervical
spine, he did not see much evidence of healing. (Def. Ex. D,
pp. 4-5)
In March of 1992, claimant underwent a functional
capacity evaluation administered by Thomas Bower, a licensed
physical therapist. He concluded that claimant was able to
lift 20 pounds from floor to chest, carry 17 pounds, and
push and pull a maximum of 15 pounds. All of these
activities were performed with pain levels ranging from
seven to eight on a one to ten point scale. Claimant was
incapable of completing any of the assigned activities for
the full time allotment. Mr. Bower offered that claimant
was symptom magnifying and that her pain levels were
disproportionate to the overall lifting assessments
performed. He indicated that claimant was in a very
deconditioned state, and recommended an aggressive work
hardening program. The results of the evaluation indicated
that claimant fit only into the light work classification.
(Def. Ex. E)
Claimant returned to Dr. McGuire on March 25, 1992. He
indicated that claimant "could probably lift in the 30-50-70
pound range on an occasional to frequent basis." He
recommended she work at home on a conditioning program. He
felt claimant had reached maximum medical improvement, and
had a permanent partial disability of 10 percent impairment
of the right upper extremity. He recommended she refrain
from operating heavy equipment and working around equipment
which vibrated heavily. He did not assign any impairment
rating to her back, and indicated that her low back did not
start bothering her until she started her rehabilitation for
the neck and right upper extremity. (Def. Ex. D, pp. 6-8)
It should be noted that Dr. McGuire clarified his
Page 5
recommendations in a letter dated November 2, 1992. He
stated that claimant had sustained a 10 percent impairment
to the body as a whole, was able to lift 30 pounds
frequently, 50 pounds on a regular basis and 70 pounds on an
occasional to rare basis. He believed that she could return
to work as a certified nurse's aid with a few restricted
activities. He anticipated she would suffer aches and
pains, but that she had had aches and pains for
approximately two years. He thought that it might be better
to get out of the CNA field and into some other type of
employment. (Def. Ex. D, pp. 9-10)
Next, claimant underwent an independent medical
evaluation from John S. Koch, M.D., with the Iowa Medical
Clinic in Cedar Rapids, Iowa. His report, dated October 5,
1993, indicates that on examination she had equal grip
strength on the right and left with full range of motion of
the wrists, forearms and fingers. Dr. Koch examined another
number of areas and ordered cervical, thoracic and lumbar
spine x-rays. He concluded that claimant's "difficulties
are related to poor physical condition, melancholia,
generalized wear and tear arthritis and medical/surgical
failure." (Def. Ex. F, p. 6) Furthermore, he noted right
upper extremity grip difficulty and discomfiture, and
assigned a 6 percent impairment to the whole person. He
assigned a 12 percent impairment to her neck, and proceeded
to rate both the thoracic and lumbar spine. He believed
that of all the impairment ratings, 6 percent impairment was
related to work injury difficulties. He recommended
physical training, work hardening and aerobic exercising,
and believed claimant could return to work as a certified
nurse's aid. He also recommended attendance at a pain
clinic. (Def. Ex. F) One of the issues in the case involves
the charges submitted by Dr. Koch for his IME, which totaled
Page 6
$1,847. The following information is an itemization of the
charges for the IME:
Evaluation $250.00
Prep Time
Evaluation 540.00
Exam & History
X-ray exam of lower spine 87.00
X-ray exam of thorax spine 69.00
X-ray exam of neck spine 151.00
Review case history 750.00
(Cl. Ex. 7, p. 12)
Numerous correspondence between the parties regarding
the costs of the IME has been generated. (Cl. Ex. 7; Def.
Ex. L)
ANALYSIS AND CONCLUSIONS OF LAW
With respect to agency file number 1023169, the first
issue to address is whether claimant sustained an injury on
April 15, 1991, which arose out of and in the course of her
employment.
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).
Claimant's case presents some interesting issues. She
was involved in two identifiable work accidents on November
7, 1990 and November 10, 1990. Both produced injury for
which claimant was treated. Unfortunately, the evidence
indicates her initial treatment was casual, at best. While
physical therapy was initiated, much of the program was left
to claimant to continue and/or pursue on her own. Claimant
is a 55-year-old woman who, although has been active in
household and garden activities, has never been involved in
any regimen of physical exercise. Even the most disciplined
people can find it difficult to stay self-motivated and
pursue a self-directed program of physical exercise. At the
hearing, claimant did not appear to be an assertive person,
but displayed a passive personality. This observation is
confirmed by entries in the evidence.
After the two incidents in November, claimant returned
to work, performing her full-time duties, until April 15,
1991. There is no specific work incident that occurred on
this date but claimant, due to continued pain and discomfort
Page 7
in her neck, right shoulder and right upper extremity,
became unable to perform her regular duties.
Claimant worked for only three months after her release
to return to work. Her testimony, as well as other evidence
in the case, indicates that her symptoms and complaints
never subsided or worsened; they remained constant.
Claimant was still undergoing treatment as of March
1991. Although she had been given a release to full-duty
work, her attempt to perform her regular job duties resulted
in an aggravation of her condition, but not a substantial
aggravation.
Additionally, no formal testing was done prior to
August of 1991, and given the nature of her complaints and
subsequent treatment, it is likely that she herniated the
disc either on November 7 or November 10, 1990.
As a result, it is found that claimant did not sustain
an injury on April 15, 1991, which arose out of and in the
course of her employment. As a result, she takes nothing
for this cause of action.
With respect to agency file numbers 970641 and 1023168,
the first issue to be addressed is whether claimant
sustained a permanent disability due to the injuries she
sustained on November 7 and November 10, 1990.
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).
Dr. McGuire, who eventually became claimant's
authorized treating physician, is of the opinion that
claimant had a 10 percent impairment to the body as a whole.
This rating took into account her neck surgery, and the
lingering symptoms in her neck, right shoulder and right
upper extremity. Dr. Koch, who performed the IME, was also
of the opinion that claimant had sustained permanent
Page 8
impairment due to the work injuries in November of 1990. He
assigned an impairment rating of 6 percent to the body as a
whole.
No evidence was presented which would indicate that
claimant has sustained no permanent disability due to the
injuries. As a result, the undersigned concludes that
claimant has sustained a permanent disability due to her
work injuries in November of 1990.
The next issue to be addressed is whether claimant is
entitled to healing period benefits from November 15, 1990
through December 27, 1990, and from April 17, 1991 through
March 31, 1992.
Iowa Code section 85.34 provides, in pertinent part:
Compensation for permanent disabilities and
during a healing period for permanent partial
disabilities shall be payable to an employee as
provided in this section....
1. Healing period. If an employee has
suffered a personal injury causing permanent
partial disability for which compensation is
payable as provided in subsection 2 of this
section, the employer shall pay to the employee
compensation for a healing period, as provided in
section 85.37, beginning on the date of injury,
and until the employee has returned to work or it
is medically indicated that significant
improvement from the injury is not anticipated or
until the employee is medically capable of
returning to employment substantially similar to
the employment in which the employee was engaged
at the time of injury, whichever occurs first.
Due to the injuries, claimant was off work during the
time specified above. As a result, she is entitled to
healing period benefits.
The next issue to determine is whether claimant's
disability is to a scheduled member or to the body as a
whole.
Nothing in the record indicates that claimant's
impairment is limited to her right upper extremity. Surgery
was performed to her neck to repair a herniated disc. As a
result, it is determined that claimant's disability is to
the body as a whole, and an analysis of her industrial
disability is warranted.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
Page 9
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
Claimant was born on October 19, 1939. At the time of
the hearing, she was 54 years of age.
Claimant completed the eighth grade in formal
education, and since 1962 has maintained a certificate as a
nurse's aid.
For the past 28 years, claimant has worked as a nurse's
aid. This type of work is very demanding, both physically
and emotionally. Unfortunately, wages do not always
accurately reflect the value of work performed. Such is the
case for nurse's aids.
Claimant was required to perform an array of duties,
Page 10
including feeding, bathing and grooming residents; lifting
and positioning residents in beds and wheelchairs; kitchen
detail; and, overall maintenance and care for residents in
the home.
As a result of her work injuries, claimant underwent
surgery to repair a herniated disc in her cervical spine.
Recovery from the surgery has been slow.
Before the injuries, claimant had no work restrictions;
currently, her restrictions include no lifting of greater
than 30 pounds on a repetitive basis; no lifting of greater
than 50 pounds on an occasional basis; and a one-time lift
of 70 pounds.
Given claimant's age and educational background, it
would be difficult to place her in a vocational
rehabilitation program for retraining of any type. Claimant
has not returned to work at the Montezuma Senior Home.
The final issue to address is whether the costs
associated with claimant's independent medical examination
are reasonable.
Iowa Code section 85.39 permits an employee to be
reimbursed for subsequent examination by a physician of the
employee's choice where an employer-retained physician has
previously evaluated "permanent disability" and the employee
believes that the initial evaluation is too low. The
section also permits reimbursement for reasonably necessary
transportation expenses incurred and for any wage loss
occasioned by the employee's attending the subsequent
examination.
Defendants are responsible only for reasonable fees
associated with claimant's independent medical examination.
Claimant has the burden of proving the reasonableness of the
expenses incurred for the examination. See Schintgen v.
Economy Fire & Casualty Co., File No. 855298 (Appeal
Decision, April 26, 1991). Defendants' liability for
claimant's injury must be established before defendants are
obligated to reimburse claimant for independent medical
examination. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980).
It is not necessary for claimant to obtain prior
approval of defendants or that claimant file an application
with the industrial commissioner's office prior to seeing a
medical examiner. Vaughn v. Iowa Power, Inc., File No.
925283 (Arbitration Decision, August 5, 1992). Nor is it
necessary for claimant to apply for reimbursement for an
independent medical examination by a physician who is
retained by claimant prior to the examination or prior to
the hearing. Pirozek v. Swift Independent Packing and
Second Injury Fund of Iowa, File Nos. 753643, 753642, 724893
(Appeal Decision 1987).
Rule 343 IAC 4.44(10)"d" provides: "The amount charged
for services, supplies and devices provided as part of a
course of treatment selected by a treating physician or
Page 11
practitioner is an expression of the provider's opinion that
the amount charged is reasonable and raises an inference
that the charge made is reasonable."
Payment of medical fees can constitute evidence of
their reasonableness and, in the absence of contrary
evidence, is sufficient to carry claimant's burden of
proving that a medical fee is reasonable. Schneider v.
Prairie Contractors, Inc., File No. 869747 (Appeal Decision
April 1992).
In the case at bar, defendants have paid a portion of
Dr. Koch's fee. Claimant has not paid any amount. No
evidence was provided to show that the fee was reasonable.
Since claimant maintains the burden of proof with respect to
the reasonableness of the charges, she has failed to supply
any evidence which would support a finding that the charges
were reasonable. The undersigned has never seen a bill of
such a substantial sum for performing an independent medical
examination submitted by a health care provider.
As a result, claimant is not entitled to payment of Dr.
Koch's bill, other than the amount already paid by
defendants.
After considering all of the factors that have been
enumerated, the undersigned finds that claimant has
sustained a 40 percent industrial disability.
ORDER
THEREFORE, IT IS ORDERED:
That claimant take nothing for file number 1023169.
Page 12
IT IS FURTHER ORDERED:
That defendants shall pay claimant healing period
benefits from November 11, 1990 through December 27, 1990,
and from April 17, 1991 through March 31, 1992.
That defendants shall pay claimant two hundred (200)
weeks of permanent partial disability benefits at the rate
of one hundred thirty and 18/100 dollars ($130.18) per week
from December 28, 1990 through April 16, 1991, and
commencing again on April 1, 1992.
That defendants shall pay accrued benefits in a lump
sum, and shall receive credit for benefits previously paid.
That defendants shall pay interest on the award, as
governed by Iowa Code section 85.30.
That defendants shall pay the costs of this action.
That defendants shall file a claims activity report as
required by the agency.
Signed and filed this ____ day of October, 1994.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Michael W Mahaffey
Attorney at Law
107 S 4th St
Montezuma IA 50171
Mr Dave Jenkins
Attorney at Law
801 Grand Ave Ste 3700
Des Moines IA 50309
Mr William D Scherle
Attorney at Law
8th Flr Fleming Bldg
218 Sixth Ave
Des Moines IA 50309
5-1803
Filed October 28, 1994
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
DONNA HUGHES, :
: File Nos. 1023168
Claimant, : 1023169
: 970641
vs. :
:
MONTEZUMA SENIOR :
HOME/HEALTH CARE OF IOWA, :
INC.,
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
5-1803
Claimant awarded 40% industrial disability .
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
RICHARD J. EISBNBACHER, :
:
Claimant, :
:
vs. :
: File No. 970781
UNITED PARCEL SERVICE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Richard
J. Eisenbacher against United Parcel Service, his former
employer, and Liberty Mutual Insurance Company, its
insurance carrier for workers' compensation claims.
Eisenbacher seeks compensation for occupational hearing
loss.
The case was heard at Des Moines, Iowa on August 27,
1992. The case was consolidated for purposes of hearing
with file number 979203. At the commencement of the
hearing, the parties agreed that the occupational hearing
loss claim, namely, this case, could be determined by
defendants' exhibit 6 and that no other or additional
evidence would be necessary with regard to that claim. The
parties elected to simply submit a stipulated record rather
than prepare settlement documents.
FINDINGS OF FACT
Defendants' exhibit 6 is a report issued by Des Moines
Otolaryngologist Robert R. Updegraff, M.D. It is noted that
the correct date of injury for this claim should be the date
of termination of employment on April 30, 1990, but the
actual last day of work was April 23, 1990. Therefore,
under the provisions of Iowa Code section 85B.8(3), the date
of injury is April 30, 1990. The variance between April 30,
1990 which was originally alleged in the petition and the
amended date of January 20, 1990, the date shown in the
first report of injury, does not change the result of the
case.
It is found that Richard J. Eisenbacher was exposed to
noise in the course of his employment with United Parcel
Service which produced a loss of hearing ability. The
audiogram conducted on June 12, 1992 under the direction of
Page 2
Dr. Updegraff showed a 43.13 percent loss of hearing in the
left ear, a 31.88 percent loss of hearing for the right ear,
and when combined under the statutory formula, those hearing
losses provide a 33.76 binaural hearing loss.
According to Dr. Updegraff, whose testimony is
uncontroverted, a large portion of Eisenbacher's hearing
loss is not attributable to noise. It is found that Dr.
Updegraff is correct when he apportions 25 percent of the
hearing loss to noise at the employment and 75 percent to
other causes (Defendants' Exhibit 6, pp. 21-23).
In accordance with the assessment made by Dr.
Updegraff, it is found that Eisenbacher has an 8.44 percent
binaural hearing loss which was proximately caused by noise
to which he was exposed in his employment with United Parcel
Service.
CONCLUSIONS OF LAW
The date of occurrence of injury when dealing with an
occupational hearing loss claim is one of the three dates
referred to in Iowa Code section 85B.8. In this case, the
date of injury is the date of termination of the
employer/employee relationship. According to the record
that date is April 30, 1990.
The injury must both arise out of and be in the course
of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246
Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406
of the Iowa Report. See also Sister Mary Benedict v. St.
Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen
v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
The words "out of" refer to the cause or source of the
injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402,
68 N.W.2d 63 (1955).
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).
In this case, the evidence from Dr. Updegraff has been
found to be correct and establishes that Eisenbacher has an
8.44 percent binaural hearing loss as a result of his
employment with United Parcel Service. Under the provisions
of Iowa Code section 85B.6, 8.44 percent of 175 weeks is
14.77 weeks. The rate of compensation for the occupational
hearing loss claim is stipulated in the prehearing report to
be $455.48 per week. That amount is not found at any point
in the July 1, 1989 benefit schedule for a single individual
with one exemption. The record does not provide the
claimant's actual earnings. Therefore, the rate of
Page 3
compensation in this case is administratively determined to
be $455.62 per week, the figure found in the benefit booklet
for a single individual with only himself as an exemption
which comes closest to the rate stipulated in the prehearing
report. Multiplying 14.77 weeks by $455.62 per weeks
provides a permanent partial disability entitlement of
$6,729.51.
Since the entitlement in this case is less than six
months, section 85B.8 makes the entire amount of permanent
partial disability due and payable six months following his
termination of employment, namely, October 30, 1990. Since
the compensation was not paid when due, Eisenbacher is also
entitled to recover interest at the rate of 10 percent per
annum on the sum of $6,729.51 computed from October 30, 1990
until the date of actual payment, in accordance with Iowa
Code section 85.30.
In cases dealing with injury, permanent partial
disability compensation is payable commencing immediately
upon the end of the healing period but in an occupational
hearing case there is no healing period. The employer is
not held liable for payment of benefits or interest prior to
the time that the claim can be filed by the employee,
namely, six months after the date of the injury. At that six
months, however, an employer who has notice of the claim is
then charged with making a valid assessment of the case and,
if liable, for making timely prompt payment of the permanent
partial disability entitlement. If payment is delayed,
interest is due.
ORDER
IT IS THEREFORE ORDERED that United Parcel Service
immediately pay Richard J. Eisenbacher fourteen point
seventy seven (14.77) weeks of compensation at the rate of
four hundred fifty-five and 62/100 dollars ($455.62) per
week by presenting an eight point forty-four (8.44) percent
binaural occupational hearing loss.
IT IS FURTHER ORDERED that defendants pay Richard J.
Eisenbacher interest at the rate of ten percent (10%) per
annum pursuant to Iowa Code section 85.30 computed from
October 30, 1990 and running to the date of actual payment.
IT IS FURTHER ORDERED that the costs of this proceeding
are assessed against defendants.
IT IS FURTHER ORDERED that defendants file claim
activity reports as requested by this agency pursuant to
rule 343 IAC 3.1.
Signed and filed this ____ day of September, 1992.
________________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Page 4
Copies To:
Mr Harry H Smith
Attorney at Law
632-640 Badgerow Bldg
P O Box 1194
Sioux City IA 51102
Mr Joseph S Cortese II
Attorney at Law
500 Liberty Bldg
Des Moines IA 50309
2208; 3800
Filed September 4, 1992
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
RICHARD J. EISBNBACHER, :
:
Claimant, :
:
vs. :
: File No. 970781
UNITED PARCEL SERVICE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
2208; 3800
It was held that benefits for permanent partial disability
compensation in an occupational hearing loss case become due
and payable six months after the date of occurrence of the
injury, the time at which the claim can be made under the
provisions of Iowa Code section 85B.8. It was further held
that if not paid at that time, the benefits draw interest
pursuant to Iowa Code section 85.30. Apportionment made by
otolaryngologist relied upon to award claimant an 8.44
percent binaural hearing loss.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DAN A. RESON, :
:
Claimant, :
:
vs. :
: File No. 970784
NIEMAN'S LTD., :
: 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 case came on for hearing in Mason City, Iowa, on
June 16, 1992. This is a proceeding in arbitration wherein
claimant seeks compensation for permanent partial disability
benefits as a result of an alleged injury occurring on July
31, 1990. The record in the proceedings consist of the
testimony of the claimant; claimant's wife, Netta Reson;
Larry D. Frisch; Duane Ranson; claimant's exhibits 1 through
16 and 18; and, defendants' exhibits A and B.
ISSUES
The issues for resolution are:
1. Whether claimant's July 31, 1990 injury arose out
of and in the course of his employment;
2. The nature and extent of claimant's permanent
disability and entitlement to disability benefits;
3. An 85.27 medical benefits issue with causal
connection being the only issue; and,
4. Whether claimant is entitled to penalty benefits
under 86.13(4).
Page 2
FINDINGS OF FACT
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant is a 40 year old who completed the eighth
grade and has attempted but not attained a GED. Claimant
related his work history which is basically involving time
in the military, working in a bakery, working in a warehouse
loading and unloading, hauling furniture, city street and
garbage department, union construction laborer which
included using a jackhammer, working as a self-employed
truck operator operating in 48 states, a motel manager,
self-employed auto sales, and towing service. Several of
these jobs involved heavy duty work.
Claimant began working for defendant employer on July
1, 1990. His duties involved over-the-road driving and it
necessitated the ability to load, pick up loads, tie down
loads along with the driving. Claimant indicated defendant
employer distributes trailer axles and wheels.
During this time, claimant also had a business in which
he sold used cars and began this business around 1987 or
1988. Claimant had stopped operating another business, his
towing business, three or four months prior to obtaining the
job with defendant employer because he needed a job in which
he could earn some money. His towing service used an
obsolete truck which was not able to efficiently tow cars,
particularly front wheel drive cars which needed more modern
electronic devices to prevent damage to the cars he was
towing.
Claimant described how his accident happened on July
31, 1990. Claimant indicated he was in Birmingham, Alabama,
and was loading tires when some fell off the truck. He
jumped off the truck by stepping on the axle and slipped
hitting his right arm and shoulder on the truck.
Claimant indicated he had no prior medical problems
with his right shoulder but did relate he previously had
carpal tunnel which never affected his shoulder.
Claimant notified his employer and was told to return
to Mason City but to make certain stops on the way.
Claimant's last truck assignment with defendant
employer was September 2, 1990 (Claimant's Exhibit 18, page
2). On September 10, 1990, claimant notified defendant
employer that he was quitting his employment with them and
that they were to drop his insurance (Defendants' Exhibit
B). Claimant contends the state of Iowa caused him to
resign his job because he was in the process of getting
custody of his daughter and that his job as over-the-road
truck driver allowed him to be home only two days a week and
it was necessary to be with his daughter more than that.
Although there is nothing in writing or in defendants'
exhibit B, claimant contends that his physical condition
also played a part in his quitting his employment with
defendant employer because it was hard for him to tie down
Page 3
the loads.
Claimant had seen Lori L. Lindstrom, M.D., on August 3,
1990, regarding his right shoulder injury. Dr. Lindstrom at
that time indicated claimant was not to lift more than 25
pounds and not to tie down loads for the next week and that
she would recheck the shoulder within one week (Cl. Ex. 1).
Claimant related that around November 9, 1990,
approximately three months after seeing Dr. Lindstrom, he
called defendant employer regarding his shoulder problems
and they sent him to C. R. Caughlan, M.D., who advised
claimant to quit working in November of 1990 (Cl. Ex. 2).
Claimant indicated that he had continued to sell cars in his
business during September through November. Claimant
indicated he wasn't getting paid any workers' compensation
from his employer even though Dr. Caughlan took him off
work.
Claimant said he was not doing any towing after he
began working with defendant employer until November.
Claimant indicated he purchased a new tow truck on November
16, 1990 (Cl. Ex. 14, pp. 17, 18). Claimant described the
difference between the old tow truck he had previously used
in his towing business and the new one he purchased.
Claimant indicated that with the new tow truck he can
operate it with one hand and arm since it has many hydraulic
or electronic gears or items whereas with the old tow truck
he would not be able to operate it with one arm or hand.
Claimant emphasized that he never incurred any injury
or aggravation of any injury as a result of his towing
business, particularly since purchasing a new tow truck in
November of 1990. Claimant indicated that the employer
denied any benefits and felt that he aggravated his
condition while working as a tow truck operator. He
received a letter on or around December 21, 1990 (Claimant's
Exhibit 18, page 25).
Claimant had surgery on his shoulder on February 12,
1991, and a friend who was unemployed operated his tow
business during the two or three months that claimant
indicated he was recovering from surgery.
Claimant showed the scar on his right shoulder which is
approximately four inches in length. Claimant indicated
that his surgery did not help that much but he is reluctant
to have additional surgery which would involve cutting off
some bone.
Claimant testified as to certain medical problems,
treatment, etc., which will be discussed later in more
detail as the medical evidence is reviewed. Claimant's
medical restrictions are referred to in claimant's exhibit
11. Claimant indicated that he could not do his work with
defendant employer that he had done at the time of his
injury because of the problems he would have in tying down
the loads, loading and unloading.
Claimant testified as to the other jobs he has had in
Page 4
the past he could not now do because of his condition. He
indicated he has no transferable skills. As to being a
motel manager, he indicated that his ex-wife owned the motel
and the divorce ended that job. He indicated that with
training he could possibly learn to do that type of work.
Claimant indicated he tried to find work and went to Job
Service for an interview but disqualified himself from this
job because of the light to heavy work required.
Claimant indicated he is still doing the towing and
auto sales to obtain his current income. Claimant indicated
that in 1991, he earned $10,000 to $11,000, and that if he
were working for defendant employer he would be earning
$30,000 plus.
Claimant indicated that his injury has affected his
day-to-day activities. He used to bowl in a bowling league
but has not done that since his injury. He is unable to
play catch with his son, he cannot move furniture around,
and he can no longer do light mechanical work.
Claimant indicated that he would like to be an
independent truck driver but cannot do the lifting and
loading. He is still undecided as to a second surgery.
There has been no vocational rehabilitation efforts provided
for him and he has no future educational plans. He
indicated that he is not college material and does not want
to go to college but further claims that a diploma isn't
honored anyway.
Claimant disagreed that he had any increased range of
motion after his surgery. He indicated he had no decrease
in pain even if a doctor said he did.
Claimant said he has made no other application for work
since quitting defendant employer except that he did contact
UPS.
Claimant acknowledged that he had a 5 percent permanent
disability rating of each hand due to carpal tunnel surgery
and that in February of 1992, he had a pulled muscle in his
neck due to a car injury. He indicated none of these
injuries had a connection with his shoulder or affected it
in any way.
Claimant's wife, Netta Reson, testified that she has
been married to claimant two years and has known him for a
total of three years. She indicated that claimant had no
right shoulder problems or injuries prior to July 31, 1990,
and she would have observed that if he had. She indicated
that she and her husband were active in a bowling league but
he cannot bowl now. She indicated claimant could do
anything she asked him to do, such as mowing the lawn or
lifting, but is unable to do so now. She indicated claimant
called her on the date of the injury and she made a doctor's
appointment for him as soon as she could. She indicated she
made an August 3, 1990 appointment, which is the day
claimant returned from Alabama. She said claimant was in a
lot of pain as a result of this injury and that he had a
hard time resting or raising his arm. She indicated that
Page 5
claimant did not get better after the surgery. She was
asked as to claimant having a second surgery and she
indicated that after claimant had his first surgery which
took four or five hours, claimant told her he would never go
through that again. She indicated that claimant's
automobile accident in February 1992 had no effect on the
shoulder and that he had had no other injuries. She
indicated that he could not play basketball with his
stepson. She indicated that claimant could not raise his
arm up as much after surgery as he could before.
She said claimant can operate his new tow truck with
one arm and that she has gone with him at times when towing
and has observed him.
Larry Frisch has known claimant seventeen or eighteen
years and they visit each other at their homes. He has
known claimant prior to July 31, 1990, and indicated that
claimant had no right shoulder problems and no restrictions.
He said that he knew claimant bought the new tow truck in
1990 and has gone with him several times when claimant was
towing. He indicated the truck was hydraulic and said he
knows how the truck is operated. He said he helped claimant
in his towing business when claimant had surgery and did all
the work in February and March while claimant was
recovering.
Mr. Frisch said he has observed claimant and indicated
he has limited motion which isn't as bad as before the
surgery. He indicated claimant cannot put his arm over his
head. He also said claimant is now an observer and not a
participant in playing volleyball.
Duane Ranson, who is employed with defendant employer
as a sales person and driver supervisor, indicated he
interviews drivers before hiring them and fills out the
forms. He indicated he does not dispatch the drivers but
does have contact with the drivers after hiring.
He referred to defendants' exhibit B as the record of
the checks claimant received in July and August. He
indicated a driver for defendant employer makes from $30,000
to $36,000 a year.
He said claimant told him he quit because he had a
chance to get his daughter back and the judge said he must
quit his truck driving job as he could not be out of state
as much as he would be if he was driving a truck. Mr.
Ranson said the claimant never indicated that his truck
driving was limited by his shoulder injury. Mr. Ranson said
he was familiar with what truck drivers must do which
includes tying down loads, shifting the gears of an 18-wheel
truck several times and lifting over 25 pounds. Mr. Ranson
acknowledged that if claimant has the same restrictions that
he had in 1990, he could only work on a limited basis. He
was referred to page 2 of claimant's exhibit 1 which is an
August 3, 1990 note. Mr. Ranson indicated this was the
first time he saw that. He indicated that even though
claimant apparently had those restrictions, claimant still
asked to work for defendant employer. He acknowledged
Page 6
claimant's income would have been $30,000 to $36,000 while
working for defendant employer.
Claimant's exhibit 1 indicates on an April 3, 1990
visit to Dr. Lindstrom that claimant had tenderness over the
entire shoulder and that it was painful and the diagnosis
was shoulder sprain. He was given a 25 pound restriction
and was not to tie down loads for the next week. Dr.
Caughlan indicated on November 9, 1990, that claimant had
possibly a rotator cuff tear and that he was going to make
an appointment for claimant with a a Dr. Laaveg. He
indicated it appeared to be a workers' compensation type
injury (Cl. Ex. 2 and 3).
Raymond L. Emerson, M.D., of the same Mason City
clinic, on January 28, 1991, indicated that a recent
arthrogram showed dye going through the rotator cuff area
signifying rotator cuff tear. At that time, he indicated
claimant lacked approximately 25 percent of being full
especially on forward elevation and abduction. Claimant had
arthroscopy of the right shoulder for a rotator cuff repair
on February 12, 1991 (Cl. Ex. 3, p. 3).
As of a September 25, 1991 visit which is seven months
after claimant's rotator cuff repair of the right shoulder,
the doctor indicated that he did not think claimant had
reached maximum medical improvement.
On October 25, 1991, eight months post-operative, he
indicated claimant has not had much improvement in range of
motion and that he will still have some discomfort about the
shoulder if he is too active. At this time, he indicated
that claimant had an impairment of approximately 16 percent
of the upper extremity (Cl. Ex. 3, pp. 5, 6).
On April 12, 1992, Dr. Emerson indicated that claimant
had a possible impingement syndrome and that he started to
have more pain without recurrent injury. He recommended an
arthrogram. On April 16, 1992, Dr. Emerson reviewed the
arthrogram and it indicated that claimant's rotator cuff was
not healed. He discussed options with the claimant as to
additional surgery. As of that time, claimant had not
decided what he would do (Cl. Ex. 3, pp. 6, 7).
Claimant's exhibit 5 and 7, dated February 8, 1991, is
a letter from Dr. Emerson in which he indicated claimant's
rotator cuff occurred at the time of his injury in July
1990. Claimant's exhibit 6 is a more detailed record of
claimant's February 12, 1992 rotator cuff surgery.
Claimant's exhibit 8 is Dr. Emerson's 16 percent
impairment rating of claimant's right upper extremity.
Claimant's exhibit 10 is a letter from Dr. Emerson, dated
April 10, 1992, after he reviewed claimant's arthrogram, in
which he indicated claimant's rotator cuff tear is probably
not healed. He also indicated that whether another repair
of the rotator cuff would be successful or not is difficult
to estimate. He had left it with the claimant to let him
know as to whether he wants to schedule another operation.
Page 7
Claimant's exhibit 11, dated May 22, 1992, is Dr.
Emerson's report indicating that his impairment he gave
claimant in October 1991 is related to his July 1990 injury
and that the restrictions of the claimant has to be governed
by the amount of claimant's pain. He indicated overhead
lifting activities or heavy lifting out of the side of his
body by bringing the arm out to the side of his body would
be uncomfortable for the claimant.
Claimant's exhibit 12 is a summary of the medical bills
amounting to $7,789.52.
Defendants contend that claimant did not incur his
injury and resulting impairment or disability as a result of
a July 31, 1990 injury, but instead hurt it while towing
vehicles in his towing business. It is obvious from the
evidence and arguments at the end of this hearing that
defendants are entirely speculating as to claimant's injury
in his towing business. There is nothing in the record that
would indicate claimant in fact injured himself in the
towing business. If the undersigned allows speculation,
then one could speculate that any type of injury one
incurred had to have happened somewhere outside of work
without having any evidence or proof of the same. The mere
fact that claimant was trying to earn a living, particularly
since he was getting no benefits from the defendants,
defendants contend he must have injured himself. The
undersigned wonders what position defendants would take if
in fact claimant sat home and did nothing to improve himself
and lack of motivation. That obviously would have been used
against him.
The record indicates that claimant is a very motivated
individual and has attempted to earn income in various ways
and has attempted to run two businesses on his own even
though they didn't appear to be very profitable.
Defendants' allegation that there is no causal connection
follows along the same lines. The medical evidence is clear
that claimant's injury and resulting impairment and current
medical condition is causally connected to his July 31, 1990
injury. The undersigned finds no reason to further dwell as
to these two issues. The undersigned therefore finds that
claimant incurred an injury that arose out of and in the
course of his employment on July 31, 1990, and that this
injury caused claimant to incur a 16 percent impairment to
his right upper extremity. The undersigned further finds
that claimant's injury to his shoulder and rotator cuff is
to his body as a whole.
Claimant contends his healing period began July 31,
1990 through October 25, 1991. Defendants contend there is
no healing period.
Defendants' exhibit B is a September 10, 1990 note from
the claimant indicating that he was quitting his employment
with defendant employer. Claimant testified that he was
quitting because he was getting custody of his daughter
which he also told the defendant employer. Claimant
testified that there were additional reasons, namely, his
injury, but these were not conveyed to the defendant
Page 8
employer. The undersigned finds that claimant was working
until September 10, 1990, and apparently at that time he was
able to do the work even though there may be some question
as to how long claimant would have been able to. The fact
is claimant quit at that time. The undersigned finds that
claimant should not be entitled to healing period because of
that reason. Approximately two months later, November 16,
1990, claimant did buy a new tow truck and because of its
technology and nature of the equipment, unlike his old tow
truck, he was able to then continue his towing business that
he had given up a few months prior to beginning work for
defendant employer around July 1, 1990.
Claimant was required to have surgery on February 12,
1991, which the undersigned finds that the medical evidence
is clear that it was the result of and caused by claimant's
July 31, 1991 work injury. Claimant had to withdraw for a
time from his towing. The undersigned finds claimant is
entitled to healing period beginning on that date. Dr.
Emerson indicated that claimant reached apparent maximum
healing on October 25, 1991, and at that time gave claimant
a 16 percent impairment to his upper extremity. The
undersigned finds that claimant is entitled to healing
period for the period beginning February 12, 1991 through
October 25, 1991, amounting to 36.571 weeks at the rate of
$407.01 per week.
The undersigned further finds that even though the
doctor referred to the right upper extremity, it is
obviously a body as a whole injury. It is not uncommon for
the doctors to refer to anything on the right side of a body
that involves the shoulder, arm or the hand as an upper
extremity.
As to the 85.27 issue, it only dealt with causal
connection and since that has been found the defendants are
responsible for claimant's medical bills which to date are
reflected by claimant's exhibit 12 and which amount to
$7,789.52.
As to the extent of claimant's permanent disability,
the undersigned finds that claimant is at an age where he
should be able to be in the height or beginning the height
of his earning capacity. The record shows claimant is
motivated. Claimant's work history indicates that he has
been able to and has done considerable work in various
fields which would involve light to heavy duty work. The
use of one's arms and shoulders are and have been important
in all the types of work that claimant has done other than
possibly his short stint of a motel manager concerning a
motel that his ex-wife owned. Claimant has only an eighth
grade education and does not have a GED. Claimant's injury
has foreclosed him from doing any of his jobs he had prior
to July 31, 1990, except he can continue his meager low
profit auto sales and his towing business now that he has a
truck that he is able to operate with one upper extremity.
Defendants' witness, Duane Ranson, made it clear that under
claimant's current restrictions and status he would not be
able to do the work for defendant employer that he was doing
on July 31, 1990. They have not offered him any work that
Page 9
he is able to do. Defendants have completely denied any
liability and have paid no benefits. There is no evidence
that claimant had any injuries that affected his employment
on July 31, 1990, or subsequent thereto except for his work
injury incurred while working for defendant employer on July
31, 1990. The undersigned will not speculate as defendants
are concerning what might have added to, aggravated or
caused claimant's current condition.
Claimant indicated he is able to earn $10,000 to
$11,000 in his current towing business. The evidence is
undisputed that claimant would have been able to make
$30,000 to $36,000 per year, at least, working for defendant
employer. It appears that working in this over-the-road
trucking industry, those figures are reasonable and in some
respects conservative. The undersigned finds that claimant
currently has at least a 60 percent loss of income. It
would appear considering claimant's injury, his best
opportunity for earning a living is continuing on in his
towing business as a self-employed operator.
Taking into consideration claimant's medical history
prior to and after his July 31, 1990 injury; his pre and
post-work experience; his intelligence; income prior to and
after his injury; his inability to engage in employment for
which he is fitted as a result of an injury; the location,
severity of his injury; the healing period, his age;
motivation; education; and functional impairment, the
undersigned finds that claimant has a substantial loss of
earning capacity. The undersigned finds claimant has a 50
percent industrial disability.
The final issue is whether penalty benefits should be
awarded to claimant under the provisions of 86.13(4). It
appears that the biggest reason defendants are denying
benefits is they are speculating that claimant must have
incurred an injury while operating his towing business.
There is absolutely no evidence that claimant incurred such
an injury. As indicated earlier, if defendants could come
in and speculate that there must have been some other cause
of claimant's injury without being specific, then you would
have chaos in the workers' compensation system. One could
conjecture that one was injured getting out of bed, eating,
driving a car, coughing, sneezing, or through motivation
trying to find work and, in fact, finding work. In all
instances one could allege that there must have been some
injury by the mere fact that a person was doing some
activity. The undersigned believes that such contentions
are absolutely ridiculous and such outrageous speculation or
conjecture should not be considered. The undersigned finds
that there was no reasonableness or probable cause or excuse
for claimant delaying the payment of some benefits. The
only evidence that claimant has to support his action is its
December 21, 1990 letter (page 25 of claimant's exhibit 18)
in which they were informing the claimant that they were
denying benefits because they felt he aggravated his
condition by working as a tow truck operator. The
undersigned finds that claimant is entitled to a total of 25
weeks penalty benefits as to the delay in payment involving
claimant's healing period and permanent partial disability
Page 10
benefits.
CONCLUSIONS OF LAW
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on July 31, 1990,
which arose out of and in the course of his employment.
McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa
1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154
N.W.2d 128 (1967).
The claimant has the burden of proving by a
preponderance of the evidence that the injury of is
causally related to the disability on which now bases
claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d
867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d
607 (1945). A possibility is insufficient; a probability is
necessary. Burt v. John Deere Waterloo Tractor Works, 247
Iowa 691, 73 N.W.2d 732 (1955). The question of causal
connection is essentially within the domain of expert
testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa
375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154
N.W.2d 128.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
Page 11
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. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
The mere fact that the rating pertains to a scheduled
member does not mean the disability is restricted to a
schedule. Pullen v. Brown & Lambrecht Earthmoving,
Incorporated, II Iowa Industrial Commissioner Reports 308
(Appeal Decision 1982).
Iowa Code section 85.34(1) provides that if an employee
has suffered a personal injury causing permanent partial
disability, the employer shall pay compensation for a
healing period from the day of the injury until (1) the
employee returns to work; or (2) it is medically indicated
that significant improvement from the injury is not
anticipated; or (3) until the employee is medically capable
of returning to substantially similar employment.
Iowa Code section 85.34(2) provides that compensation
for permanent partial disability shall begin at the
termination of the healing period. Iowa Code section
85.34(2)(u) provides that compensation for a nonscheduled or
body as a whole injury shall be paid in relation to 500
weeks and the disability bears to the body as a whole.
Iowa Code section 85.27 provides, in part:
For purposes of this section, the employer is
obliged to furnish reasonable services and
supplies to treat an injured employee, and has the
right to choose the care. The treatment must be
offered promptly and be reasonably suited to treat
Page 12
the injury without undue inconvenience to the
employee. If the employee has reason to be
dissatisfied with the care offered, the employee
should communicate the basis of such
dissatisfaction to the employer, in writing if
requested, following which the employer and the
employee may agree to alternate care reasonably
suited to treat the injury. If the employer and
employee cannot agree on such alternate care, the
commissioner may, upon application and reasonable
proofs of the necessity therefor, allow and order
other care. In an emergency, the employee may
choose the employee's care at the employer's
expense, provided the employer or the employer's
agent cannot be reached immediately.
Iowa Code section 86.13 provides, in part:
If a delay in commencement or termination of
benefits occurs without reasonable or probable
cause or excuse, the industrial commissioner shall
award benefits in addition to those benefits
payable under this chapter, or chapter 85, 85A, or
85B, up to fifty percent of the amount of benefits
that were unreasonably delayed or denied.
It is further concluded that:
Claimant incurred a work injury on July 31, 1990, that
arose out of and in the course of his employment, and that
said work injury caused claimant to incur a permanent
impairment and a body as a whole injury and certain
restrictions.
Claimant incurred certain restrictions that foreclosed
him from performing the work he was doing on July 31, 1990
for defendant employer and additionally foreclosed him from
many other occupations that he previously had for which he
was unable to use any transferable skills he may have had.
Claimant incurred a healing period beginning February
12, 1991 through October 25, 1991 (36.571 weeks), which was
a result of his work injury and was caused by his July 31,
1990 work injury.
Claimant is entitled to have his medical benefits, as
represented by claimant's exhibit 12 in the amount of
$7,789.52, paid by the defendants.
If claimant decides to have the additional suggested
surgery on his right shoulder said expenses shall be paid by
the defendants.
Claimant has a substantial loss of income and has
incurred a substantial loss of earning capacity.
Claimant has a 50 percent industrial disability and his
permanent partial benefits shall begin October 26, 1991, at
the rate of $407.01 per week.
Page 13
Claimant is entitled to an additional 25 weeks of
penalty benefits under the provisions of 86.13(4) for the
reason that defendants denied payment of benefits without
reasonable or probable cause or excuse. That said action of
defendants was not fairly debatable.
ORDER
THEREFORE, it is ordered:
That defendants shall pay unto claimant healing period
benefits at the rate of four hundred seven and 01/100
dollars ($407.01) per week for the period beginning February
12, 1991 through October 25, 1991, involving thirty-six
point five seven one (36.571) weeks.
That defendants shall pay unto claimant two hundred
fifty (250) weeks of permanent partial disability at the
rate of four hundred seven and 01/100 dollars ($407.01) per
week, beginning October 26, 1991.
That defendants shall pay claimant twenty-five (25)
additional weeks at the rate of four hundred seven and
01/100 dollars ($407.01) per week as penalty benefits under
the provisions of Iowa Code section 86.13(4)
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid. Defendants have not
previously paid benefits.
That defendants shall pay claimant's medical bills in
the amount of seven thousand seven hundred eighty-nine and
52/100 dollars ($7,789.52).
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of June, 1992.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Robert S Kinsey III
Attorney at Law
214 N Adams
P O Box 679
Mason City IA 50401
Page 14
Mr Rustin T Davenport
Attorney at Law
30 4th St NW
P O Box 1953
Mason City IA 50401
1100; 1108; 1803
1802; 5-2500; 4000
Filed June 26, 1992
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DAN A. RESON, :
:
Claimant, :
:
vs. :
: File No. 970784
NIEMAN'S LTD., :
: 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. :
___________________________________________________________
1100; 1108; 1803
Found 40-year-old claimant incurred a work injury on July
31, 1990, that caused claimant to have a right shoulder
surgery, incur a healing period and a 50% industrial
disability.
1802
Found claimant not entitled to a healing period shortly
after his surgery because he resigned in order to obtain
custody of his child and be able to be in town more than
driving over the road and being gone several days at a time.
5-2500
Claimant awarded medical benefits, 85.27.
4000
Claimant awarded 25 weeks of penalty benefits. Defendant
denied all benefits based on their speculation or conjecture
that claimant must have injured himself in the towing
business. They had no evidence of any other injury other
than claimant's July 31, 1990 injury.