BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
CATHY ACCORDINO,
Claimant,
vs.
File No. 971023
BRIDGESTONE/FIRESTONE,
A P P E A L
Employer,
D E C I S I O N
and
PACIFIC EMPLOYERS INSURANCE,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the deputy
and all exhibits admitted into the record, has been reviewed de novo on
appeal. The decision of the deputy filed August 11, 1994 is affirmed
and is adopted as the final agency action in this case.
Claimant and defendants shall share equally the costs of the appeal
including transcription of the hearing.
Signed and filed this ____ day of February, 1995.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert W. Pratt
Mr. Max Schott
Attorneys at Law
6959 University Ave
Des Moines IA 50311-1540
Ms. Valerie A. Landis
Attorney at Law
Terrace Center STE 111
2700 Grand Ave
Des Moines IA 50312
1808
Filed February 21, 1995
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
CATHY ACCORDINO,
Claimant,
vs.
File No. 971023
BRIDGESTONE/FIRESTONE,
APPEAL
Employer,
DECISION
and
PACIFIC EMPLOYERS INSURANCE,
Insurance Carrier,
Defendants.
___________________________________________________________
1808
Injury date in case of bilateral carpal tunnel and cubital tunnel
syndromes found to be when claimant left work for surgery, not when she
first reported symptoms. The injury date made a significant difference
in rate of compensation.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
CATHY ACCORDINO, :
:
Claimant, :
:
vs. :
: File No. 971023
BRIDGESTONE/FIRESTONE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
PACIFIC EMPLOYERS INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a contested case proceeding under Iowa Code
chapter 17A. Claimant, Cathy Accordino, filed a petition in
arbitration against her former employer, Firestone Tire and
Rubber Company, and its insurance carrier, Pacific Employers
Insurance, on account of a claimed work injury of June 6,
1989 (first medical attention) or September 7, 1989 (surgery
and first lost work). A hearing was accordingly scheduled
and held in Des Moines, Iowa on April 27, 1994. The record
consists of claimant's testimony, claimant's exhibits 1-45
and defendants' exhibits 1-5.
ISSUES
The parties have stipulated to the following:
1. An employment relationship existed
between claimant and Firestone Tire and
Rubber Company at the time of the alleged
injury;
2. If claimant sustained injury arising out
of and in the course of employment, it
caused temporary disability from September
7, 1989 through October 9, 1989 and July 21
through August 14, 1991;
3. Entitlement to temporary total
disability or healing period benefits is no
longer in dispute;
4. At the time of injury, claimant was
single and entitled to five exemptions;
5. Affirmative defenses have not been
raised;
Page 2
6. Entitlement to medical benefits is no
longer in dispute; and,
7. Defendants have voluntarily paid 56.571
weeks of compensation at the time of $343.65
per week, 7.143 weeks of which constituted
healing period or temporary total
disability.
Issues presented for resolution include:
1. Whether claimant sustained injury
arising out of and in the course of
employment;
2. Whether the injury caused permanent
disability;
3. The nature, extent and commencement date
of permanent disability, if any; and,
4. The correct rate of weekly compensation.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
Cathy Accordino, a right hand dominant 39 year old
woman, commenced employment with Firestone Tire and Rubber
Company in January 1989. Defendant Firestone operates a
tire manufacturing facility in Des Moines, Iowa.
At the time she began working for Firestone, Ms.
Accordino suffered no physical problems. She worked as a
tire trimmer, tire inspector, forklift operator and utility
worker in the buff and repair department. In particular,
work as a tire trimmer and inspector involved strenuous use
of the upper extremities, as claimant would rotate tires
with one hand, simultaneously trimming excess rubber with a
knife held in the opposite hand.
Unfortunately, claimant soon developed upper extremity
problems eventually diagnosed through EMG testing as
bilateral carpal tunnel syndrome. On June 6, 1989, she
first appeared at the plant medical department with
complaints of wrist pain. She was seen by the company
doctor, James Blessman, M.D., and eventually referred for
consultation to Arnis Grundberg, M.D.
Dr. Grundberg first saw claimant on August 2, 1989.
Based on her symptoms, examination and EMG testing, he
developed an impression of bilateral carpal tunnel syndrome
and probable bilateral cubital tunnel syndrome.
On September 7, 1989, Dr. Grundberg performed bilateral
carpal tunnel decompressions. On a number of forms prepared
to release claimant to light duty work following surgery,
Dr. Grundberg indicated that his entire diagnosis, including
both carpal and cubital tunnel syndrome, was work related.
Claimant returned to light duty work on October 10, 1989
Page 3
with restrictions against pushing, pulling or lifting over
five pounds with either hand.
Although the bilateral decompressions initially
relieved symptoms, claimant soon suffered a recurrence. She
had returned to full duty on November 5, 1989.
By August 1990, Dr. Grundberg reports complaints of
bilateral shoulder pain which he diagnosed as bursitis.
However, Dr. Grundberg eventually concluded that the
shoulder problems were not work related. On March 9, 1992,
Dr. Grundberg rated impairment at three percent of each arm
due to residuals from carpal tunnel syndrome. At that time,
his impression also included mild bilateral cubital tunnel
syndrome. Because the carpal tunnel decompressions had
failed to relieve symptoms, Dr. Grundberg recommended
against surgical treatment of the cubital tunnel problems.
On January 5, 1994, Dr. Grundberg amended his impairment
rating to add an additional five percent to each arm for
unoperated bilateral cubital tunnel syndrome. In this
letter, Dr. Grundberg noted that claimant had some shoulder
complaints in October 1990, but that such complaints were
more significant in March 1992 (when he last saw claimant);
because Ms. Accordino had not worked for Firestone since
July 1991, he concluded that the shoulder complaints were
not causally related to her work.
Actually, claimant was laid off by Firestone in August
1991. In 1991 and 1992, claimant was treated by Donna J.
Bahls, M.D., a specialist in rehabilitation and physical
medicine. On September 14, 1992, Dr. Bahls wrote that "her
pains are casually [sic] related to her employment
activities at Firestone from cumulative work injury."
Although Dr. Bahls' previous notes had made some reference
to pains radiating up to the shoulders and neck, it is not
at all clear that this causation opinion was intended to
include those symptoms, or possible permanent disability to
the neck or shoulders. Dr. Bahls recommended physical
restrictions to limit overhead use of the arms and avoid
repetitive work with the hands and wrists. Dr. Bahls did
not rate impairment and would "defer to someone else" on
that score.
Claimant was also seen on a number of occasions in 1991
by Robert F. Breedlove, M.D. On November 21, Dr. Breedlove
felt claimant was experiencing symptoms which might be
referred to cubital tunnel or mild bilateral reflex
sympathetic dystrophy. By November 26, 1991, following
repeat EMGs and nerve conduction velocity testing, Dr.
Breedlove recommended that claimant return to Dr. Grundberg.
He noted that testing was negative for cubital tunnel
syndrome, but positive with respect to the median nerve
across the carpal tunnel. He did not recommend further
surgical treatment.
Claimant was seen for evaluation on February 1, 1991 by
Keith W. Riggins, M.D. Dr. Riggins identifies himself as
board certified in orthopedic surgery and arthroscopic
surgery. Dr. Riggins concluded that impairment was confined
to the distributions of the ulnar nerve at the elbow
Page 4
bilaterally and the median nerve at the wrist bilaterally.
Utilizing the AMA Guides to the Evaluation of Permanent
Impairment (4th Edition), Dr. Riggins found 30 percent
impairment to the right upper extremity due to cubital
tunnel syndrome and 20 percent due to carpal tunnel; also 30
percent impairment to the left upper extremity due to
cubital tunnel and 20 percent due to carpal tunnel syndrome.
Converting these impairment ratings to the whole person, Dr.
Riggins found an 18 percent plus a 12 percent impairment on
each side due to the two conditions, which he thereupon
combined to find a 48 percent impairment to the whole
person. Dr. Riggins further found both conditions to be
caused by cumulative injury in the employ of Firestone, with
current impairment attributable to residuals after
appropriate treatment. He thought claimant unable to engage
in activities requiring repetitive or finely controlled
motions of the upper extremities on either side, unable to
engage in tight gripping and lifting or carrying, and likely
to require future treatment to control symptoms by
utilization of anti-inflammatory medications.
During the 13 weeks prior to the injury date of
September 7, 1989, payroll records reflect the following
hours and straight time earnings:
Week Ending Hours Straight Time
Earnings
9/03/89 32.0 $352.08
8/27/89 40.0 440.10
8/20/89 32.0 352.08
8/13/89 48.2 503.63
8/06/89 40.0 395.85
7/30/89 48.0 475.26
7/23/89 40.0 396.05
7/16/89 40.0 396.05
7/09/89 0.00
7/02/89 40.0 389.60
6/25/89 40.0 389.60
6/18/89 40.2 422.91
6/11/89 50.0 573.82
The record does not disclose why claimant missed eight
hours during the weeks ending August 20 and September 3 or
why she had no earnings for the week ending July 9.
Claimant's testimony that she missed hours due to family
health problems is understood to relate to the 13 weeks
prior to June 6.
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,
Page 5
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).
A personal injury contemplated by the workers'
compensation law means an injury, the impairment of health
or a disease resulting from an injury which comes about, not
through the natural building up and tearing down of the
human body, but because of trauma. The injury must be
something which acts extraneously to the natural processes
of nature and thereby impairs the health, interrupts or
otherwise destroys or damages a part or all of the body.
Although many injuries have a traumatic onset, there is no
requirement for a special incident or an unusual occurrence.
Injuries which result from cumulative trauma are
compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d
368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa
1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219,
38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries,
Inc., 218 Iowa 724, 254 N.W. 35 (1934). An occupational
disease covered by chapter 85A is specifically excluded from
the definition of personal injury. Iowa Code section
85.61(5); Iowa Code section 85A.8.
When the disability develops gradually over a period of
time, the "cumulative injury rule" applies. For time
limitation purposes, the compensable injury is held to occur
when because of pain or physical disability, the claimant
can no longer work. McKeever Custom Cabinets v. Smith, 379
N.W.2d 368 (Iowa 1985).
Drs. Grundberg, Bahls and Riggins attribute claimant's
carpal tunnel and cubital tunnel symptomatology to
cumulative trauma resulting from claimant's work at
Firestone. No contrary medical evidence is shown of record.
Page 6
Claimant prevails on the "arising out of" and causation
issues.
The appropriate date of injury is September 7, 1989,
when claimant underwent surgery and was forced to leave work
as a result.
Under Iowa Code section 85.34(1), healing period is
compensable beginning on the date of injury and continuing
until the employee has returned to work, it is medically
indicated that significant improvement from the injury is
not anticipated, or until the employee is medically capable
of returning to substantially similar employment, whichever
first occurs.
Claimant returned to work on October 10, 1989.
Although she had a subsequent period of temporary total
disability prior to her layoff, the healing period ended
when she returned to work. At about this time claimant
reached the "high water mark" in her imperfect recuperation,
since her symptoms have steadily worsened since.
We must next consider whether claimant's permanent
disability is to the body as a whole or two scheduled
members. Disability to the body as a whole is compensated
by the industrial method as loss of earning capacity.
Scheduled member disabilities are compensated according to
the schedule set forth in Iowa code section 85.34 as a
measure of functional loss. In this case, claimant has
proven disability to each arm from carpal and cubital tunnel
syndromes, but not disability extending to the shoulders,
neck or body otherwise as a whole. All of claimant's upper
extremity symptoms developed together and claimant's only
surgery was bilateral on the same day. Claimant's
disability should be compensated under Iowa code section
85.34(2)(s):
For all cases of permanent partial
disability compensation shall be paid as
follows:
....
s. The loss of both arms, or both hands, or
both feet, or both legs, or both eyes, or
any two thereof, caused by a single
accident, shall equal five hundred weeks and
shall be compensated as such, however, if
said employee is permanently and totally
disabled the employee may be entitled to
benefits under subsection 3.
Claimant was not totally disabled by the work injury
under review, although she has since been involved in a
terrible automobile crash and has suffered much greater
disabilities. Ms. Accordino is currently receiving Social
Security disability benefits. However, for purposes of this
injury, claimant's age, intelligence (normal, at least) and
work experience, including clerk/cashier, clerical and
physician's assistance experience, indicate that although
Page 7
the restrictions suggested by Drs. Grundberg, Bahls and
Riggins are severe, claimant would still have some earning
capacity.
The impairment ratings of Dr. Grundberg and Dr. Riggins
vary considerably. Dr. Grundberg's opinion certainly
deserves respect as that of the primary treating physician
and surgeon. However, this decision prefers the detailed
evaluation of Dr. Riggins. Dr. Riggins' report is
consistent with the symptoms claimant experiences (although
there are hints in the record that symptom magnification may
be a factor) and is based on a much more recent evaluation
than is the case with Dr. Grundberg, who based his
impairment rating on claimant's condition in 1992. Dr.
Riggins' multiple board certification is also impressive.
The calculation of combined disability using the AMA
Guides combined values chart is consistent with the
statute.
Forty-eight percent of 500 weeks is 240 weeks.
Claimant is entitled to 240 weeks of permanent partial
disability benefits commencing October 10, 1992, but
interrupted from July 21 through August 14, 1991, when
claimant sustained a second period of temporary disability
as per stipulation.
This leaves determination of rate as an issue. Because
claimant was paid an hourly wage, her compensation should be
determined under Iowa Code section 85.36(6). The statute
provides that the weekly earnings in this case is computed
by dividing by 13 the straight time earnings during the last
competed period of 13 consecutive weeks immediately
preceding the injury. The payroll records demonstrate that
claimant worked two short weeks and had no earnings
whatsoever in one of the 13 weeks prior to September 3. The
agency has long recognized that nonrepresentative weeks
should be excluded from rate calculation. Hardy v.
Abell-Howell Co., 841126 (App. Dec., December 12, 1990);
Davis v. Weitz Co., 898933 (App. Dec., November 25, 1992).
The week ending July 9 is clearly nonrepresentative, since
claimant had no earnings. The record does not reflect why
she worked but 32 hours during the weeks ending August 20
and September 3, but since it does not, claimant has failed
to show they are nonrepresentative. The straight time
earnings during the other 12 weeks totals $5,087.03.
Division by 12 yields a quotient of $423.92. The rate
tables published by this office show that a single
individual with five exemptions and gross average weekly
wages of $423.92 is entitled to a compensation rate of
$275.07.
ORDER
THEREFORE, IT IS ORDERED:
Defendants shall pay two hundred forty (240) weeks of
permanent partial disability benefits at the rate of two
hundred seventy-five and 07/100 dollars ($275.07) commencing
October 10, 1989, except said benefits are interrupted from
Page 8
July 21, 1991 through August 14, 1991.
Defendants shall have credit for permanent partial
disability benefits voluntarily paid prior to hearing.
All accrued weekly benefits shall be paid in a lump sum
together with statutory interest.
Costs are assessed to defendants.
Signed and filed this ____ day of August, 1994.
________________________________
DAVID RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Robert W Pratt
Attorney at Law
6959 University Avenue
Des Moines Iowa 50311-1540
Ms Valerie A Landis
Attorney at Law
Terrace Center Ste 111
2700 Grand Avenue
Des Moines Iowa 50312
1808
Filed August 11, 1994
DAVID RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
CATHY ACCORDINO, :
:
Claimant, :
:
vs. :
: File No. 971023
BRIDGESTONE/FIRESTONE, :
A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
PACIFIC EMPLOYERS INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1808
Injury date in case of bilateral carpal tunnel and cubital
tunnel syndromes found to be when claimant left work for
surgery, not when she first reported symptoms. The injury
date made a significant difference in rate of compensation.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
LILLIAN NAIRN, :
:
Claimant, :
:
vs. :
: File No. 971064
ALBIN SWANSON, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE FARM INSURANCE CO., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration brought by Lillian
Nairn, claimant, against Albin Swanson, employer, and State
Farm Insurance Co., insurance carrier, defendants, for
benefits as a result of an alleged injury which occurred on
October 23, 1990. A hearing was held in Sioux City, Iowa,
on August 26, 1992 and the case was fully submitted at the
close of the hearing. Claimant was represented by Dennis
McElwain. Defendants were represented by Judith Ann Higgs.
The record consists of the testimony of Lillian Nairn,
claimant, joint exhibits 1 through 26 and claimant's
exhibits A through E. The parties agreed that defendants'
exhibits C and E tended to be duplicates, however, exhibit E
helped to explain exhibit C and therefore both C and E were
admitted into evidence by agreement of the parties
(Transcript pages 8-11). Defendants' presented a brief
statement of contentions at the time of the hearing. Both
attorneys submitted outstanding post-hearing briefs. The
deputy ordered a transcript of the hearing.
issues
The parties submitted the following issues for
determination at the time of the hearing.
Whether claimant sustained an injury on October 23,
1990, which arose out of and in the course of employment
with employer.
Whether the alleged injury was the cause of either
temporary or permanent disability.
Whether claimant is entitled to either temporary or
permanent disability benefits.
Whether claimant is entitled to medical benefits.
findings of fact
Page 2
injury
It is determined that claimant did not sustain an
injury on October 23, 1990, which arose out of and in the
course of her employment with employer.
Claimant, age 51, has been employed as a care giver
since 1978, a period of approximately 12 years prior to this
incident (Tran., pp. 31 & 32). She worked for her previous
employer as a care giver for approximately six and one-half
years from June 13, 1983 to January 5, 1990. This previous
employment also required lifting the patient (Tran., pp.
32-34,74). Claimant denied that she sustained any injuries
while working for the previous employer (Tran., p. 34) but
did admit that her back got tired from lifting her former
client (Tran., p. 92). Claimant testified, "... -- my back
problems there wasn't like it is now." (Tran., p. 35).
The employer in this action is a stroke victim
approximately 81 years of age who also had Parkinson's
disease and was confined to a wheelchair (Tran., p. 41).
Claimant started to work for employer Swanson on August 29,
1990 (Tran., pp. 40 & 82) and continued to work there until
November 7, 1990 (Tran., p. 88), a period of ten weeks.
Claimant's primary responsibility was to be a companion and
to talk with him (Tran., p. 42). Her duties also included
bathing and dressing employer, assisting him into and out of
bed and a wheelchair, and onto and off of a couch and the
toilet (Tran., p. 43). The weight of employer was not
introduced into evidence but claimant testified that he was
an average size man and defendants' counsel suggested that
he might weigh about 135 pounds (Tran., p. 42 & 70).
Claimant testified that her previous employer was a woman
who weighed approximately 89 pounds (Tran., p. 42).
In addition to claimant, employer also employed another
woman as a live-in companion who cooked the meals and still
another person was employed as housekeeper (Exhibit 24, page
6). Claimant typically worked from 8:00 a.m. on Monday
morning until 5:00 p.m. on Friday afternoon (Tran., p. 41).
Claimant testified that at approximately 10:30 a.m. on
October 23, 1990 that she was trying to get a Depend (a
sanitary diaper) on employer when she felt pain in her mid
back and chest (Tran., p. 42; Ex., pp. 34, 35 & 37). This
caused a recurrence of angina pain for which she took two
Nitroglycerin pills. Claimant said she got over the angina
pain but she continued to have a steady pain in her mid back
(Tran., pp. 45 & 46). Claimant testified that she had never
experienced anything like that before (Tran., pp. 46 & 47).
Claimant stated that she called her doctor's office that
afternoon at about 2:30 p.m. on October 23, 1990 and a nurse
set up a stress test for her on the following day October
24, 1990 (Tran., p. 48).
The office records of Gene E. Michel, M.D., claimant's
personal physician, do not show an entry for October 23,
1990. Rather, Dr. Michel's office notes show that claimant
called on October 22, 1990, the day before the alleged
injury. The doctor's office note states, "Lillian called.
Page 3
Wants stress test set up. Phoned back. Pain left side
since last week. Recommended Dr. Parker." (Ex. 4, p. 2).
Dr. Michel's office note for October 22, 1990, makes no
mention of lifting a patient and feeling mid back and chest
pain (Ex. 4, p. 2).
At the hearing claimant did not testify that she
reported the injury to employer, the cook, or the
housekeeper at her place of her employment nor did any of
these persons testify that claimant reported a mid back and
chest pain to them while lifting employer at anytime while
she was working for employer. Claimant did say in a
telephone statement to the insurance company representative
on January 3, 1991, that she reported it to the cook when
the cook came home that day (Ex. 24, p. 36). This statement
is neither corroborated nor controverted. Robert D.
Swanson, employer's son, responding to interrogatory number
9 admitted that a work incident was reported by claimant to
him. In interrogatory 14 he states that he was notified
when claimant left to go to the doctor. Dr. Michel's notes
show that she saw Dr. Wesley A. Parker, M.D., for the stress
test on October 24, 1990 and she saw Dr. Michael with
urinary tract problems on October 29, 1990 and November 5,
1990, but that claimant first complained of lower back pain
from lifting Mr. Swanson on November 7, 1990 (Ex. 24, pp. 11
& 16, Ex. 4, pp. 1 & 2).
Therefore it cannot be determined whether claimant
reported this injury to employer or anybody connected with
him before November 7, 1990 or not. Furthermore, it is
noteworthy that when claimant did first allege back pain on
November 7, 1990, from lifting Mr. Swanson she stated that
it was in her lower back and moved around to the front
rather than in her mid back and chest (Ex. 4, p. 1).
The first report of injury, which was introduced into
evidence as a joint exhibit, shows that claimant experienced
a pain which went from her back to her chest on the left
side and all the way through on November 7, 1990, and that
the employer first knew of the condition on November 7, 1990
(Iowa Code section 86.11). This first report of injury is
signed by Robert D. Swanson, employer's son (Ex. 20).
Claimant insisted in her telephone statement to the
insurance adjuster (Ex. 24, pp. 35 & 36) and in her
testimony at the hearing (Tran., p. 47) that she was injured
on October 23, 1990 and that she called the doctor's office
on that same day. However, Dr. Michel recorded that
claimant first called him on October 22, 1990. The doctor
further noted that on October 22, 1990, that claimant had
pain in her left side since last week (Ex. 4, p. 2). It is
further noted that when she saw the doctor prior to this
injury on October 19, 1990, concerning urinary problems that
he also prescribed Nitrostat for chest pain (Ex. 4, p. 2).
With respect to when claimant reported this injury to Dr.
Michel the written office note of Dr. Michel and the other
person in his office, both of whom made notes on October 22,
1990, is preferred over Claimant's recollection (Tran. 48 &
86). Claimant admitted that her recollection was not good
Page 4
about what she told Dr. Michel on other matters (Tran., pp.
90 & 91).
It is also noted that (1) approximately one year prior
to this alleged injury, Dr. Michel recorded that claimant
complained of chest pain and tenderness in the upper
thoracic spine on November 13, 1989 (Ex. 4, p. 3), (2) that
he prescribed Nitrostat for chest pain just a few days prior
to this injury on October 19, 1990 (Ex. 4, p. 2) and (3)
that on October 22, 1990, Dr. Michel noted that claimant had
pain in the left side since last week (Ex. 4, p. 2).
On October 24, 1990, the hospital records of Sioux
Valley Memorial Hospital reflect that claimant told a nurse
that she had experienced chest pain intermittently for the
past year and that she had it two times in the last week.
The hospital makes no mention of mid back and chest pain
while lifting employer on October 23, 1990 or at anytime
(Ex. 2, p. 2).
Dr. Parker, who administered the stress test at the
hospital on October 24, 1990, makes no mention of mid back
and chest pain while lifting employer on October 23, 1990.
On the contrary, Dr. Parker recorded that claimant had a
history of intermittent substernal chest pain irrespective
of activity, relieved by Nitroglycerin, and that there was a
family history of premature heart disease. The results of
the stress test were normal. Moreover, even though Dr.
Parker discontinued the test due to leg fatigue and dry
mouth he nevertheless commented that claimant's functional
aerobic capacity was ten percent better than active females
of the same age (Ex. 2, p.3).
After the stress test was completed claimant did
complain of discomfort in her midsternum and pain in her
back. The complete records shows that these symptoms were
first recorded on November 13, 1989. Furthermore, they
would not constitute a specific injury but would appear to
be a result of changes in the human body incident to the
general processes of nature that do not amount to a personal
injury which are natural changes which may have come about
because of a life devoted to labor and hard work. Claimant
testified that her back became very tired when lifting her
previous employer. Claimant has a family history of early
heart disease. Those natural changes do not constitute a
personal injury even though they bring about some impairment
of health or the total or partial incapacity of the
functions of the human body. Almquist v. Shenandoah
Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934).
Dr. Michel recorded in his notes of October 24, 1990,
that the stress test was normal. Thus, this office note on
October 24, 1990, which was made by claimant's personal
physician and which was made the day after the alleged
injury makes no mention of mid back and chest pain on the
previous day or at anytime (Ex. 4, p. 2).
At the hearing claimant testified that she told Dr.
Parker that her back pain was caused by this alleged injury
but neither the nurse's notes nor Dr. Parker's notes make
Page 5
any mention of mid back or chest pain which occurred on
October 23, 1990, while lifting employer (Tran., pp. 49 &
50; Ex. 2).
Dr. Michel noted on October 29, 1990, that claimant
called and reported that she thought she passed some kidney
stones. Back ache is mentioned but it appears to be in
conjunction with her urinary problems. The doctor recorded,
"Now backache, no fullness but burning after voiding." (Ex.
4, p. 2). The doctor then continues to discuss the stress
test and the urinary tract problems but no mention is made
of mid back and chest pain which occurred on October 23,
1990, while lifting her employer. Dr. Michel concludes this
entry of October 29, 1990, with this notation, "She called
back with tightness in her throat and chest and is all
nerved up. I recommended she get out and walk to release
some of this tension and not just take nerve pills." (Ex. 4,
p. 2).
On November 5, 1990, Dr. Michel noted that claimant
reported to him that she had left flank pain which moved
around to the front and she thought that she had passed what
looked like a long light colored kidney stone. This office
note, again, makes no mention of mid back or chest pain that
occurred on October 23, 1990, while lifting employer (Ex. 2,
p. 1).
At the hearing claimant complained that she did not
receive any medical care for her back after seeing Dr.
Parker and when she continued to see Dr. Michel even though
her back hurt something terrible (Tran., p. 50). Claimant
related that the pain in her back got so bad that she
couldn't take it anymore and that she was forced to quit her
employment with employer on November 7, 1990 (Tran., p. 51).
Claimant testified that she did not tell the employer that
she was leaving but rather told the cook that she was
leaving because she did not want to worry employer (Tran.,
p. 51).
The office note of Dr. Michel for November 7, 1990,
states that claimant complained of pain in her lower back
around to the front when she lifts. Thus, even though
claimant was quite specific at the hearing that the pain was
in her mid back by words and gestures (Tran., pp. 46 & 51),
Dr. Michel records that she reported to him that the pain
was in her lower back and moved around to the front (Ex. 4,
p. 1).
On November 7, 1990, Dr. Michel wrote in his notes,
"Works for Al Swanson. Has to lift him and has had a lot of
pain today. Wonders if needs to be seen again or can have
something for pain. ...." (Ex. 1, p. 4). Thus, the first
indication in her personal physician's records that claimant
had any back problems from her employment did not occur
until November 7, 1990, which is the same day that she
voluntarily quit her job with employer. This note does not
indicate that this low back pain occurred on October 23,
1990. Nor does this note describe mid back and chest pain.
Dr. Michel saw claimant on the following day, November
Page 6
8, 1990, at which time he noted, "In to check back.
Complains of pain left posterior rib cage radiates to left
lower chest. Worse with movement or coughing, deep
breaths." (Ex. 4, p. 1). Dr. Michel also recorded
tenderness in her lower thoracic spine on November 8, 1990
(Ex. 2, p. 2) Thus, it was not until November 8, 1990, that
claimant complained of symptoms which could be identified as
mid back and chest pains. Dr. Michel ordered x-rays taken
on November 12, 1990, by Glenn Van Roekel, M.D., at the
Sioux Valley Memorial Hospital. The chest, thoracic spine
and intravenous pyelogram were all normal (Ex. 3; Ex. 4, p.
1).
On November 13, 1990, Dr. Michel recorded that the
x-rays were normal. He also recorded that claimant wondered
if it would come under workers' compensation and Dr. Michel
wrote in his notes that claimant was having chest pain a
year ago before she was working for this employer (Ex. 4, p.
1). Dr. Michel apparently was referring to his office note
of the previous year on November 13, 1989, when he recorded
that claimant had pain (tightness) in the lower sternum as
well as heart palpitations with chest pain and tenderness in
the upper thoracic spine on percussion (Ex. 4, p. 3). Dr.
Michel suspected possible angina pectoris but he also added
that the patient was very nervous and it could be
neuromuscular pain or upper GI pain from her previous
history of ulcers (Ex. 4, p. 2).
In a letter to claimant's counsel which Dr. Michel
wrote on July 5, 1991, the doctor stated "I have not been
able to correlate her pain very well with the lifting of Al
Swanson, and she did pass a small kidney stone, which I
suspect was the cause of her pain." (Ex. 9).
Thus, claimant's personal physician since January 15,
1988, who was the only physician actively treating claimant
at the time of this alleged injury, did not attribute
claimant's pain to a work injury but rather he attributed it
to a kidney problem.
Claimant testified that she transferred her care to M.
A. Kennedy, D.C., on November 15, 1990, "Because Dr. Michel
wouldn't do anything. He wouldn't recognize that I was
having problems with my upper back and maybe he hadn't -- I
don't know. I don't know. I can't account for --" (Tran.,
p. 53).
Claimant contended that Dr. Kennedy looked at the Sioux
Valley Memorial Hospital x-rays and told her that her back
was all out of line and that she had a dislocated rib
(Tran., pp. 53 & 90). Claimant described her treatment with
Dr. Kennedy as follows.
"Well, he did some -- he adjusted my back. He
says, my God, lady, you got to be in a lot of
pain, which I was, and he adjusted by back in
several places and adjusted my neck. He said that
my back was all out of line and that I had a
dislocated rib and he showed on the x ray that I
took from the hospital that Dr. Michel -- that I
Page 7
insisted on Dr. Michel take and he said that there
was space in between the ribs and the back and
that I had to be in a lot of pain." (Tran., p.
53).
Dr. Kennedy completed a doctor's report on January 31,
1991 in which he stated that his x-ray diagnosis was
thoracic subluxation, thoracic strain/sprain and thoracic
pain. (Ex. 5).
In a later report dated June 25, 1992, Dr. Kennedy said
that claimant's x-rays showed that aberrant vertebral
mechanics of the cervico-thoracic spine were present at
T6-T7 and T2-T3 (Ex. 14, p. 2). It cannot be determined
what x-rays Dr. Kennedy was looking at. An examination of
his itemized charges discloses no specific charge for x-rays
(Ex. C & E). Therefore he could have been referring to the
Sioux Valley Memorial Hospital x-rays that he examined
previously which were interpreted by Dr. Van Roekel.
However, John J. Dougherty, M.D., testified that he examined
some x-rays which were chiropractic long x-rays which were
dated June 18, 1992 (Ex. 26, p. 11).
Dr. Michel's final office note entry on November 27,
1990 states that claimant told him that Dr. Kennedy told her
that the Sioux Valley Hospital x-rays demonstrated a
dislocated rib and two vertebra jammed together (Ex. 4, p.
1). Irrespective of whether Dr. Kennedy examined the Sioux
Valley x-rays or his own x-rays the opinion of Dr. Van
Roekel, a radiologist is preferred over the opinion of Dr.
Kennedy.
Also on June 25, 1992, Dr. Kennedy diagnosed, "Lower
cervicothoracic segmental dysfunction. Cervical leading to
a cephalgia; the thoracic to a myofacial fibrosis with some
residuals into the lumbar spine." (Ex. 14, p. 2).
With respect to the diagnosis of Dr. Kennedy of
thoracic subluxation and aberrant vertebral mechanics at
T6-T7 and T2-T3, it is determined that the report of Dr. Van
Roekel, a radiologist, is preferred over the testimony of
Dr. Kennedy, a doctor of chiropractic medicine. Dr. Van
Roekel found that the chest films and the thoracic spine
films were normal (Ex. 3). Rockwell Graphics Systems, Inc.
v. Prince, 366 N.W.2d 192 (Iowa 1985). A doctor's expertise
may accord his testimony greater weight. Reiland v. Palco
Inc., 32nd Biennial Report of the Industrial Commissioner 56
(1975); Dickey v. ITT Continental Baking Co., Thirty-fourth
Biennial Report of the Industrial Commissioner 89 (1979).
Dr. Michel's records demonstrate that claimant made no
complaints of thoracic pain to him at all. With respect to
the thoracic tenderness that he discussed and did record on
November 8, 1990, and the left posterior rib cage pain that
she complained radiated to the left lower chest, he did
order x-rays on November 12, 1990. He said the x-rays were
normal on November 13, 1990. Dr. Michel also called
attention to the fact that "... she was having some chest
pain a year ago and it was before she was working for him
[employer]." (Ex. 4, p. 1).
Page 8
Even though Dr. Kennedy stated "It is my opinion that
Lillian Nairn has and will have on-going problems associated
with the injuries she suffered in the 10-23-90 incident."
(Ex. 14, p. 2), nevertheless, the opinion of Dr. Michel is
preferred over the opinion of Dr. Kennedy. Dr. Michel said
he could not correlate her pain with lifting Al Swanson and
that he suspected the small kidney stone which she passed at
that time was the cause of her pain (Ex. 9). Dr. Michel was
seeing claimant regularly at the time of the alleged injury
and made competent notes based on his clinical diagnosis,
x-rays and his previous knowledge of claimant and her
condition dating back to January 15, 1988 (Ex. 4). Dr.
Michel and his office staff appear to be good historians
making and initialing and recording all of the events which
transpired including telephones calls (Ex. 4, pp. 1 & 2).
Dr. Michel made no record of an injury caused by
lifting employer on October 23, 1990, which caused immediate
mid back pain that raided around to her chest. On the
contrary, he indicated (1) that he could not correlate her
symptoms to lifting employer, (2) that he suspected her pain
was related to her kidney problems which she was having at
that time and (3) he further believed that claimant's
symptoms were quite possibly a recurrence of the chest
discomfort and upper thoracic spine tenderness that he had
been treating since November 13, 1989 (Ex. 4, pp. 2 & 3, E.
9). Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d
187, 192 (Iowa 1985).
Defendants requested an independent medical examination
from John J. Dougherty, M.D., an orthopedic surgeon on March
26, 1991, approximately five months after the alleged
injury. Dr. Dougherty reported that when he mentioned
taking x-rays that claimant requested an MRI of her whole
body (Ex. 26, p. 33). Dr. Dougherty's physical examination
was essentially normal. The x-rays of her dorsal spine were
essentially normal, except for some minimal degenerative
changes (Ex. 26, pp. 8, 9, 29 & 30). Dr. Dougherty
concluded, "PAIN IN THE DORSAL SPINE, ETIOLOGY? PERHAPS SOME
FIBROMYALGIA. RECOMMENDATIONS: Non. [sic] I think there is
tremendous psychosomatic overlay here. Would not feel
further diagnostic studies are indicated nor do I think she
sustained any disbility [sic]." (Ex. 6).
It should be noted that Dr. Dougherty's findings were
consistent with Dr. Michel's findings. Furthermore, since
Dr. Dougherty questioned the etiology of claimant's
complaints it cannot be said that he determined that her
complaints were caused by lifting employer on October 23,
1990 (Ex. 26, pp. 32-34). Moreover, he said that he could
not find anything that would explain her pain (Ex. 26, p.
35).
In a detailed report dated March 29, 1991, Dr.
Dougherty concluded "In conclusion, based on one examination
regarding this patient, I really didn't find very much wrong
with her. Basically she has some restriction of chest
expansion which perhaps is caused by some degenerative
Page 9
changes in the back. I do not feel there are any further
diagnostic studies indicated on her. I do feel that a
considerable amount of her problem is perhaps on a
psychosomatic basis. Basically I would feel that she could
be back working. I also feel she hasn't sustained any
permanent impairment." (Ex. 7, p. 2).
Dr. Dougherty testified by deposition on August 12,
1992. He related that he is a board certified orthopedic
surgeon who has been practicing orthopedic medicine for 37
years and that he has seen thousands of patients. He is
admitted to practice in both Iowa and Nebraska (Ex. 26, pp.
1-5 & 42). He compared x-rays of December 14, 1987 and June
18, 1992 and found no significant difference in the dorsal
spine between the two dates (Ex. 26, pp. 11, 12, 28 & 29).
He did not find any thoracic radiculitis (Ex. 26, pp. 15, 30
& 31). The doctor reviewed the tests he performed and
testified that if claimant had any residuals from this
alleged injury they would have developed by the time of his
examination (Ex. 26, pp. 16 & 33).
Dr. Dougherty found no indication of a dislocated rib
(Ex. 26, p. 17). The doctor opined that he did not believe
that claimant aggravated a previous existing condition (Ex.
26, p. 36). He did not find any tender spots or muscle
spasm (Ex. 26, p. 36). He reversed his earlier opinion that
claimant might have fibromyalgia (Ex. 26, p. 37). Dr.
Dougherty thought it was significant that claimant could hop
on one foot and that he percuss her back and that she
registered no pain (Ex. 26, pp. 7 & 41).
In summary then Dr. Dougherty testified that he did not
believe that claimant sustained any injury at anytime from
lifting employer or otherwise to any part of her back.
Claimant testified that she received relief from the
chiropractic treatments of Dr. Kennedy while she was in the
office but that her back would stiffen up again on the way
home (Tran., p. 54). Because of this pain she consulted Dr.
Hamm. The records of Dr. Hamm show that he saw claimant on
February 28, 1991 and again on March 8, 1991 (Tran., pp. 54
& 55 and Ex. 10). Dr. Hamm was also a personal physician of
claimant, who had seen her since June 28, 1964 (Ex. 10).
Dr. Hamm has treated claimant for multiple complaints for a
long period of time. His records show that she is a nervous
and anxious person for whom he prescribed a number of
prescription medications. Claimant requested cortisone
shots in her back from Dr. Hamm because the chiropractor
told her that she needed 15 to 20 cortisone shots (Ex. 10,
p. 2). On this occasion he ordered nonsteroid
anti-inflammatory medication and a sonogram of her gall
bladder (Tran., p. 94). Claimant testified that she
discontinued her treatment with Dr. Hamm because the
medication did not help, the sonogram and her blood test
proved negative and the insurance company refused to pay for
his treatment (Tran., p. 56).
Claimant admitted that two days after she started to
work for employer she suggested to his son that he should
Page 10
purchase a workers' compensation policy (Tran., p. 83).
Although claimant has not worked since she voluntarily
quit her employment with employer on November 7, 1990 (she
was not taken off work by a doctor), she nevertheless has
not applied for social security disability benefits nor has
she applied for vocational rehabilitation assistance in
finding employment (Tran., p. 95).
Claimant testified that during her job search the first
thing that she told prospective employers was that she had a
bad back (Tran., pp. 96, 102 & 103). Claimant also
testified that she had never filed a workers' compensation
claim prior to this one (Tran., p. 104).
Jay J. Parsow, M.D., a physiatrist, performed an
independent medical examination on claimant on May 5, 1992,
at the request of claimant's attorney. Among other things
Dr. Parsow found (1) thoracic spondylosis, probably
preexisting, aggravated by injury, (2) possible thoracic
radiculitis T7/8 versus costovertebral joint dysfunction,
probably pre-existing, asymptomatic, aggravated by injury,
(3) history of possible fibromyalgia, (4) possible
psychosocial disorder and (5) mechanical back pain with
facet irritation, probably aggravated by injury. His other
five findings are not related to the injury described by
claimant in this case (Ex. 11). Dr. Parsow examined
claimant again on June 25, 1992 and gave a detailed
impairment rating and prognosis that claimant was limited to
sedentary work (Ex. 15).
Some of the difficulties involved in accepting Dr.
Parsow's evaluation are as follows: (1) He is a one-time
evaluator. (2) He had no personal experience with
claimant's long and extensive medical history. (3) His
evaluation goes far beyond claimant's original complaints of
mid back and chest pain. (4) His evaluation includes the
cervical and lumbar areas as well as her thoracic area. (5)
His evaluation was performed at the request of claimant's
attorney to produce evidence for this hearing.
Dr. Michel's notes and report are preferred over the
one-time evaluation of Dr. Parsow because he was a treating
physician and he was treating claimant both before, during
and immediately after this alleged injury. As a treating
physician he was responsible for the success or failure of
his treatment. Likewise, Dr. Dougherty's evaluation is
preferred over the evaluation of Dr. Parsow, even though he
too is an independent evaluator, because it comports best
with the records of Dr. Michel and Dr. Parker whose records
and reports were prepared contemporaneously with the date of
the alleged injury. Many of the complaints that claimant
presented to Dr. Kennedy and Dr. Parsow, she had registered
earlier in 1987 to Dr. Erwin who is in the same office as
Dr. Kennedy (Ex. 1).
Claimant acknowledged that she did see Dr. Erwin, a
doctor of chiropractic medicine, who is in the same office
as Dr. Kennedy, on December 14, 1987 (Tran., pp. 35 & 36).
The case history form which claimant completed for Dr. Erwin
Page 11
shows that she had the following complaints or symptoms (1)
headache, (2) pain in neck, neck pain with movement, muscle
spasms in the neck and popping sounds in the neck, (3) pain
in the left shoulder, tension in shoulders and pinched nerve
in the left shoulder, (4) pain in the upper arm and pain in
the forearm, (5) nervous stomach, (6) low back pain worse
when working, lifting and bending, (7) pain down both legs
and (8) nervousness, irritableness, depression, fatigue,
general run-down feeling and loss of sleep. Claimant did
not indicate any mid back pain on this form (Ex. 1, Tran.
pp. 74-77). Claimant testified that she saw Dr. Erwin for
her left shoulder and that this condition was not
work-related and that she only saw Dr. Erwin two times
(Tran., pp. 34 & 35).
Wherefore, based upon the foregoing evidence and all
the evidence introduced into the record in this case it is
determined that claimant did not sustain an injury on
October 23, 1990, to her thoracic spine and chest which
arose out of and in the course of employment with employer.
More specifically (1) the incident was not witnessed, (2)
claimant did not establish that she reported it to employer,
the cook, or the housekeeper who are living or working in
the same household, (3) although claimant contended the
injury happened on October 23, 1990, there was conflicting
evidence that it may have occurred and that she first
reported it to employer's son and Dr. Michel on November 7,
1990, (4) although she was communicating with Dr. Michel
regularly at the time of this injury he makes no mention of
a work-related incident until she voluntarily quit her job
on November 7, 1990, (5) on November 7, 1990, she reported
lumbar pain rather than thoracic back pain, (6) Dr. Michel
first records left posterior rib cage pain radiating to the
lower left chest on November 8, 1990 and he did not relate
it to a lifting incident for employer on October 23, 1990,
(7) Dr. Michel testified that claimant's pain was connected
with her kidney problems that she was having at this time,
(8) Dr. Michel further suggested that this might be a
recurrence of the chest tightness and thoracic tenderness
that she had a year earlier on November 13, 1989, which was
suspected angina pectoris and for which he was regularly
prescribing Nitroglycerin pills right up to October 19,
1990, four days before the alleged incident on October 23,
1990, (9) the nurse's notes at the Sioux Valley Memorial
Hospital and Dr. Parker's notes on November 24, 1990, make
absolutely no mention of a lifting incident for employer on
October 23, 1990, (10) Dr. Dougherty, who examined claimant
five months after the alleged injury, found only mild
degenerative disc disease and did not think that claimant
had sustained an injury to any portion of her back at any
time, (11) that the testimony of Dr. Kennedy that claimant
had thoracic subluxation and cervico thoracic segmental
dysfunction is controverted by the x-rays and evidence from
Dr. Michel, Dr. Parker and Dr. Dougherty, (12) that the
evaluation of Dr. Parsow is too remote in time and
Page 12
nonprobative in substance when compared to all of the other
evidence in this case, (13) even though claimant testified
that she sustained the injury October 23, 1990 and called
the doctor's office on that date the written notes of the
doctor and one other person in his office do not record a
call on October 23, 1990, but rather show that claimant
called the doctor for a stress test on October 22, 1990 for
pain in the left side which had persisted since last week.
In conclusion, it is determined as a matter of fact
that claimant did not sustain an injury to her mid back and
chest on October 23, 1990 which arose out of and in the
course of her employment with employer from lifting employer
on that date.
conclusions of law
Wherefore, based upon the foregoing and following
principles of law these conclusions of law are made.
That claimant did not sustain the burden of proof by
preponderance of the evidence that she sustained an injury
to her mid back and chest on October 23, 1990, which arose
out of and in the course of her employment with employer
from lifting him on that date. Iowa Code section 85.3(1);
McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa
1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154
N.W.2d 128 (1967).
In view of the foregoing findings all other issues in
the case become moot.
order
THEREFORE, IT IS ORDERED:
That no amounts are due from defendants to claimant.
That the costs of this action are charged to claimant,
except that defendants are to pay for the cost of the
attendance of the court reporter at hearing and the
transcript of hearing. Iowa Code sections 86.19(1) and
86.40 and rule 343 IAC 4.33.
That defendants file claim activity reports as
requested by this agency. Rule 343 IAC 3.1.
Signed and filed this ____ day of February, 1993.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Dennis M. McElwain
Attorney at Law
Page 13
632-640 Badgerow Bldg.
P.O. Box 1194
Sioux City, IA 51102
Ms. Judith Ann Higgs
Attorney at Law
P.O. Box 3086
Sioux City, IA 51102
1100
Filed February 4, 1993
Walter M. McManus, Jr.
before the iowa industrial commissioner
____________________________________________________________
:
LILLIAN NAIRN, :
:
Claimant, :
:
vs. :
: File No. 971064
ALBIN SWANSON, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE FARM INSURANCE CO., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1100
Claimant did not prove an injury arising out of and in the
course of employment with employer.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
ROMAN LUNA, :
:
Claimant, :
:
vs. : File Nos. 971311
: 1034572
MEREDITH/BURDA, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
Claimant Roman Luna seeks benefits under the Iowa
Workers' Compensation Act upon his petition in arbitration
against employer Meredith/Burda and its insurance carrier,
CNA Insurance Companies. Mr. Luna asserts that he sustained
injury as the result of exposure to toxic substances in 1989
(toluene) and 1990 (blanket wash and UV curable coating).
He asserts a single injury date of September 18, 1989, when
he first was taken off work at the behest of a treating
physician.
This cause came on for hearing in Des Moines, Iowa on
September 23, 1992. Testimony was received from claimant,
Pamela Luna, Vernon Crawford, Merle Short and David
Hendricks. Joint exhibits 1-2, 4-17 and 23-29 were received
into evidence along with defendants' exhibit A. Mr. Luna's
offer of claimant's exhibits A and B was taken under
advisement with respect to defense objections. Those
objections are hereby overruled and the exhibits are
received into evidence.
issues
The parties have stipulated to the existence of an
employment relationship, that any permanent disability is an
industrial disability to the body as a whole, to the rate of
compensation ($276.16 per week) and agree that all medical
costs were paid by an non-occupational group insurance plan
and that defendants are entitled to certain credit for sick
pay/disability benefits under Iowa Code section 85.38(2).
Page 2
Issues presented for resolution include:
1. Whether claimant sustained injury arising out of
and in the course of his employment on September 18, 1989;
2. Whether such injury caused either temporary or
permanent disability;
3. The extent of temporary total disability or healing
period; and,
4. The extent and appropriate commencement date of
permanent disability.
findings of fact
The undersigned deputy industrial commissioner finds:
Roman Luna, 43 years of age at hearing, was employed by
Meredith/Burda and a successor corporation for some 17
years. Meredith/Burda is a large printing operation.
Claimant took work as a packer (of printed materials) in the
pressroom in 1975, remaining there until 1986. In 1986, he
began an apprenticeship designed to lead to journeyman
status as a pressman.
In 1988 and early 1989, claimant worked in the cylinder
making or plate department, work that involved operating a
rotogravure press (a process in which an inked impression is
produced by a rotary press).
Unlike offset presses, the rotogravure process entails
use of the chemical solvent toluene. This solvent is
blended into the ink itself and is also used in greater
quantities to clean the press at the end of each run. A wad
of rags is saturated with toluene and used to clean the
printing plate, a process requiring roughly fifteen to
twenty minutes. On average, this is done perhaps three
times a day, but on occasion up to as many as five or six.
On rare occasion there is a large ink spill, which
necessitates substantial use of toluene for cleanup. This
might occur only two or three times per year.
Toluene is a toxic substance. It is used in many
industrial applications and is contained in paint.
Industrial exposure is typically of a long-term or chronic
nature. The substance is also notorious for being abused by
"glue sniffers," a process involving massive exposure for
the purpose of attaining a state of euphoria described in
the record as similar to alcohol intoxication.
Toluene has a distinctive odor and is capable of being
sensed by humans in remarkably small concentrations.
Toluene is fat-soluble and volatile, meaning that it easily
evaporates from a liquid into a vapor. It is typically
absorbed into the human body through respiration, whereupon
it has an affinity for fat tissue, especially in and about
the central nervous system. According to S. G. Jejurikar,
M.D., (who testified by deposition on September 9, 1992),
concentration of toluene vapors at 200-500 parts per million
Page 3
(ppm) for several weeks produces symptoms of headaches,
nausea, lassitude, impairment of coordination and loss of
memory. Vapor concentration of 500-1500 ppm causes similar
but more severe effects. Concentration of 10,000-30,000 ppm
may cause mental confusion, drunkenness and unconsciousness
within a few minutes. Indeed, coma and death are not
unknown in cases of extremely high exposure, such as may be
the case with glue sniffers.
According to claimant and his co-worker, James Goforth,
industrial exposure at the Meredith/Burda plant would
occasionally lead to symptoms of lightheadness, dizziness or
uncoordination, similar to the effects of ethanol. (In this
decision, "symptoms" refer to physical effects reported as
experienced by the patient, while "signs" refer to physical
effects objectively perceptible to an examining physician).
According to claimant's testimony, he began developing
symptoms of fatigue, loss of appetite and hallucinations in
approximately March 1989. His wife, Pamela Luna, confirmed
certain behavioral changes in early 1989, particularly
confusion. She indicated that Mr. Luna had problems driving
and was "very different" during two business trips in
approximately May or June of that year. Ms. Luna also
testified that claimant developed phobias, anxiety, insomnia
and increased confusion between July and September 1989.
On May 26, 1989, claimant underwent a routine physical
at the hands of his family physician, Darwin Schossow, D.O.
Curiously, claimant did not report these alarming symptoms
to Dr. Schossow, complaining instead of a sore throat (and
an allergic reaction to medication prescribed by Dr. Robert
Conner for this problem) an itchy nose, cough in the morning
and occasional wheezing. Taking this history, Dr. Schossow
discovered that claimant was routinely exposed to toluene,
and thereupon ordered blood tests to rule out a metabolic
disorder.
Blood tests on May 27 revealed elevated cholesterol and
glucose levels (previous blood tests on December 12, 1987
and February 23, 1988 had also indicated elevated
cholesterol and glucose) and a second test on June 19 also
indicated a high cholesterol level. Both 1989 blood tests
also revealed elevated levels of two liver enzymes: serum
glutamic oxalacetic transaminase (SGOT) and serum glutamic
pyruvic transaminase (SGPT).
SGOT (now more commonly known as aspartate transferase,
or AST) is commonly increased in various liver disorders,
and in myocardial infarction, circulatory congestion, muscle
injury, central nervous system disease and other nonhepatic
disorders. The test is nonspecific, but very high levels
may be suggestive of acute viral or toxic hepatitis.
According to Dr. Jejurikar, SGPT (now more commonly known as
alanine transferase, or ALT) is more specific for liver
disease than is SGOT.
On July 27, 1989, Dr. Schossow recommended that Mr.
Luna be removed from his present work environment for a
period of 30 days, following which liver enzymes studies
Page 4
should be repeated. Claimant was accordingly transferred to
the pressroom (where he had previously worked for some 14
years), following which a blood test on September 5, 1989
showed normal levels of SGOT and SGPT. Repeat testing on
August 3, 1990 and November 10, 1990 again demonstrated
normal levels of both enzymes.
At about the same time, Dr. Schossow referred claimant
to a gastroenterologist, William J. Semon, D.O. On July 19,
Dr. Semon reported that claimant's abnormal liver studies
were associated with some mild abdominal pain localized to
the left side of the abdomen which claimant described as a
burning or dull discomfort, and at times stinging. The
abdominal pain was intermittent in nature and was relieved
with eating, although it could be precipitated by spicy
foods, greasy foods or even dry foods. Claimant also
reported daily nausea without vomiting and occasional
heartburn.
On July 25, 1989, Dr. Semon recommended an empiric
trial of the drug Tagamet, upon his impression that
abdominal pain was most likely due to gastroesophageal
reflux with chronic air swallowing. But on August 7, Dr.
Semon advised claimant to discontinue the drug so as not to
"muddy the waters," as Tagamet has been shown to cause
abnormal liver studies. In their brief, defendants make a
great deal of this advice, arguing that Tagamet could have
caused the original enzyme imbalance, and that the
subsequent normal blood tests could easily have been due to
the discontinuation of Tagamet, rather than removal from
toluene exposure. This argument is untenable. Indeed, it
is dangerously misleading, since the abnormal enzyme levels
were discovered prior to when claimant even commenced taking
Tagamet.
On September 12, 1989, Dr. Semon wrote that claimant's
improvement in liver studies following removal from "high
levels of toluene" suggested that toluene "may have, in
fact, been responsible for the development of these abnormal
liver studies." Dr. Semon further recommended that claimant
continue to abstain from alcohol and if possible, seek a
work environment in which none or only low levels of toluene
were present.
Based on liver enzymes returning to normal following a
30 day removal from toluene, Dr. Schossow also concluded
that the elevated liver enzymes were causally related to
toluene exposure and felt claimant should avoid prolonged
exposure to toluene at high levels. He further suggested
that claimant seek employment in a location where
environmental exposure to any toxins was minimal.
Dr. Schossow apparently did not recommend abstention
from alcohol. This may be due to the disturbing likelihood
that claimant gave his family doctor a false history of
alcohol abuse. On July 6, 1989, Dr. Schossow writes:
He does admit to a remote history of heavy alcohol
use but states he has not consumed significant
amounts of alcohol in several years.
Page 5
In fact, claimant's wife testified that claimant got
drunk on an average of once a week for most of their 22-year
married life. She and claimant both testified that claimant
last became drunk at Thanksgiving, 1988, or roughly six
months before his physical with Dr. Schossow. Claimant's
use of alcohol is quite significant, since, as shall be
seen, alcohol abuse is a likelier cause of increased SGPT
and SGOT levels than is toluene exposure.
In any event, Mr. Luna complains that he continued to
suffer symptomatology despite the return to normal of his
liver enzyme levels. In testimony, he described his problem
as an inability to "keep everything together." He next
sought treatment from Mark Thoman, M.D., a board certified
physician both in pediatrics and clinical toxicology. Dr.
Thoman testified by deposition on August 25, 1992.
Although claimant first saw Dr. Thoman on September 18,
1989, he apparently filled out a lengthy questionnaire as to
his medical history on September 11. Despite answering a
question requesting whether he was now fully recovered as
"unknown," he listed the following symptoms: lightheadness,
headache, blurred vision, dry mouth, diarrhea, tingling
feeling, numbness in the head, muscle soreness everywhere,
dizziness, bad taste in mouth, nausea, sleepiness,
difficulty in swallowing or knot in the throat, weakness,
ringing in ears, abdominal pain and inability to catch his
breath. Some of the history claimant gave Dr. Thoman is
apparently self-contradictory. For example, he answered
that he actually got only four hours sleep per night, while
also answering "true" to the statement: "I wake up fresh and
rested most mornings," and "false" to the statement: "night
sleep is fitful and disturbed."
Claimant also answered "true" to the following
statement: "I've never felt better in my life than I do
now."
Although Mr. Luna only went to school through the
eleventh grade, he has earned a GED and impressed this
observer as being of at least average intelligence.
Page 6
September 11, 1989 is also significant in that claimant saw
the company doctor, Robert Shires, M.D., on that date. Dr.
Shires testified:
Q. Now, when he came to see you in September
of 1989 did he report any symptoms to you other
than elevated liver enzymes?
A. Not that I am aware of.
Q. Could he have reported other --
A. Excuse me. He did have. He was packing
books, and he had a sore left wrist.
Q. In September of 1989?
A. September of 1989 that same visit his
problem he was presenting the letter about toluene
exposure, and he had the week before developed a
sore wrist while he was packing some books and
looked like he had a mild tenosynovitis of his
wrist. That was his problem he presented on that
day.
Q. Anything else besides that?
A. Not that I recall.
Q. If he had reported other symptoms or
problems to you, would it have been your practice
to include them in your notes?
A. I usually write as many things down as I
can recall and feel are pertinent.
(Shires Deposition, pp. 8-9).
The oral history taken by Dr. Thoman on September 18
was of respiratory irritation, a skin rash and liver enzyme
elevation. Dr. Thoman testified that claimant had a tight
throat from time to time, difficulty breathing with
considerable coughing and esophageal hernia, unrelated.
Although claimant had already been removed from the
plate department and direct contact with toluene, Dr. Thoman
elected to take him off work entirely. He testified:
A. Generally there is. In most cases, we take
them out until we can complete our evaluation. We
like to err on the side of caution. If there is a
potential of chemical exposure that might be
causing some problems, the first thing you do is
take them away from the exposure for two reasons.
First of all, if it is, you want to see if it gets
better when they are away from it. Secondly, you
don't want to get worse because you haven't acted
on it.
Q. I notice in your notes of 9-18 you
Page 7
postponed the return to work, is that right, at
this point?
A. That's right, until we could kind of sort
everything out and see how much effect he was
having from his exposure.
Q. Then I notice in your note of 10-31 you
returned him to work at that time; is that right?
A. Right.
Q. What was the reason for keeping him away
from the work at that time?
A. To decrease the chance of his having
further damage if that particular solvent was the
cause of his problem; and, secondly, to see if he
got better without being around the chemical in
question.
Q. What occurred when you kept him out? What
was your conclusion you reached?
A. He improved. His liver enzymes decreased.
He did have some symptoms, but they were
essentially improved once he had been away from it
for some time.
(Thoman Deposition, Pages 14-16).
Dr. Thoman prepared a supplementary report to defendant
CNA on October 16. His diagnosis was of elevated liver
enzymes secondary to toluene exposure. Asked if claimant
was still disabled, Dr. Thoman answered; "he is currently
disabled from working around toluene + like solvents." As
to when claimant could return to work, Dr. Thoman specified,
"when a suitable environment in the plant is found."
On October 25, 1989, Dr. Thoman toured the
Meredith/Burda plant so as to study the various working
conditions in order to make recommendations for claimant's
continued employment. On October 31, he wrote that based on
prior health and work history claimant most likely had a
sensitization to chemicals and their noxious fumes, and
could for that reason no longer work in an environment with
significant concentrations of volatile petrochemicals.
Further, Dr. Thoman wrote that claimant's liver enzymes had
stabilized at present and that "therefore" he was released
to return to work in a work environment with low to zero
concentration of those petrochemicals. Dr. Thoman further
recommended regular monitoring of blood chemistry.
There is wide diversity of highly qualified medical
opinion as to whether claimant's reported symptomatology and
the objective sign of increased liver enzymes bear a causal
relationship to toluene exposure. The existence or
nonexistence of that causal relationship is the key issue in
this litigation.
Page 8
As noted, Dr. Thoman is a board certified clinical
toxicologist. He is a highly qualified physician whose
opinions have frequently been received in toxic exposure
claims litigated before this agency. Dr. Thoman believes
that a causal nexus does exist between claimant's symptoms
and toluene exposure. Asked to list the symptoms or
problems caused by toluene, he testified:
A. Upper and lower respiratory irritation. He
had some headache. He had some dermatological
changes. He had some hepatic enzyme changes at
the time. SGOT and SPTP were elevated. I think
those were the primary ones he presented with, and
then some emotional problems that certainly go
along with this situation.
(Thoman Deposition, p. 18).
Dr. Thoman was further asked whether his suggested
restrictions against exposure to volatile petrochemicals
were permanent in nature:
A. Generally they are. Over time you can get
a pretty good idea, but over months, continuing
into years, if they continue to have problems with
reexposures to related chemicals, then it's like
being allergic to penicillin. Once you have an
allergic reaction -- and I'm not indicating this
is an IGE or typical allergic reaction, but it's
similar to the allergic reaction. Once you're
allergic, you can't have any penicillin in the
future. Once you become sensitized, quotes, you
have to be careful about certain inhalants of
certain types in the future.
Q. Was the exposure he then had, did that then
make him more sensitized to having further
exposures under, say, lesser conditions, or what
happened?
A. What happens is if he has the same exposure
to the same chemical or closely related, which is
an aromatic hydrocarbon, which is like benzenes or
toluene or toluol, this could trigger off a number
of symptoms, the headache, cause the rash to
recur, upper and lower respiratory tract
irritation, wheezing and so on.
Some of the related compounds, particularly
hydrocarbons, and I think subsequently he had
trouble with hair spray, aftershave, and so forth.
Once they have a reaction, then they are often
sensitive to other chemicals. So you have to kind
of alert them that there may be certain areas or
certain situations in which they do not want to
go, because it may cause some old symptoms to come
back.
(Thoman Deposition, pp. 26-27).
Page 9
As will be discussed later in this decision, Mr. Luna
developed certain symptoms in late 1990 which he attributes
to exposure to other chemicals. Dr. Thoman believes that
toluene exposure increased claimant's sensitivity to other
chemicals and ties those symptoms to the original exposure.
The mechanism is as set forth above.
Here, a few words about Dr. Thoman are in order. Under
Iowa Code section 17A.14(5), this agency's experience,
technical competence, and specialized knowledge may be
utilized in the evaluation of evidence. As noted above, Dr.
Thoman has frequently been called upon to offer expert
opinion in litigation before this agency. His opinion has
sometimes been accepted, but sometimes not. In particular,
this deputy recognized in Peck v. Merrill Mfg. Co., Number
894350 (Arb. Dec., February 26, 1991) that Dr. Thoman's
views on the subject of chemical sensitization are similar
to that of devotees of the theory of "clinical ecology."
This is a controversial subject in medical science. Some
such practitioners believe in environmental illnesses whose
victims may become allergic or sensitized to practically all
chemicals and substances not found in nature. To date, the
American Medical Association has not accepted these
theories. In any event, it seems fair to say that
non-allergic chemical sensitization is a theory somewhat
outside the mainstream of current medical thought.
An altogether different opinion on the causation issue
was received from Dr. Jejurikar. Dr. Jejurikar is board
certified in forensic toxicology and has been the state
toxicologist for the state of Minnesota for roughly 22
years. Asked to distinguish between a clinical toxicologist
and a forensic toxicologist, he indicated that a forensic
toxicologist would be more involved in studying and dealing
with the effects of a given chemical or drug on the human
body, while a clinical toxicologist would be more involved
in actively treating patients on a direct care basis.
Dr. Jejurikar has never seen claimant. However, he has
devoted substantial time to the study of Mr. Luna's medical
records and the medical literature relating to toluene
exposure. He testified to spending perhaps between 50 and
60 hours on the case prior to his deposition testimony.
(Since Dr. Jejurikar was paid $75 per hour, he has clearly
profited by his work on this case. Nonetheless, a reading
of his report and deposition testimony does not leave the
impression that he is a "hired gun" offering his opinion for
sale to the highest bidder. Rather, his opinions are
consistent with the extensive medical literature he cites).
Dr. Jejurikar based his opinions on the assumption that
claimant had some exposure to toluene. In his brief, Mr.
Luna criticizes this opinion as based on a mistaken belief
that claimant had low to zero exposure because he invariably
wore a charcoal-filtered respirator. This is a misstatement
of the doctor's testimony. In fact, while claimant wore his
respirator more frequently than anyone else (for instance,
he was the only one to consistently wear his respirator
while the press was running), he definitely had toluene
exposure. Defendants make much of the technologically
Page 10
advanced exhaust system and claim that toluene exposure was
practically nonexistent. Yet, in 1991, this same employer
was fined $5,000 under the Iowa Occupational Safety and
Health Act (by the Iowa Division of Labor, a sister agency)
for allowing excessive exposure to toluene both in the roto
press area and proof press area.
Dr. Jejurikar testified:
A. As far as the toluene is concerned, there
should not be really any difference how much the
exposure is.
Q. Why is that?
A. Because all the studies have shown that
there is no relation between the amount of toluene
exposure and any relation to elevation in the
enzymes such as SGPT, SGPT.
(Jejurikar Deposition, p. 13).
And:
A. Based on all the studies I have seen, there
is no relation of elevation in enzymes in the
liver, such as SGOT or SGPT, and the concentration
of toluene exposure, and therefore in my mind the
elevation which was caused in Mr. Luna's case is
really not due to toluene but could be due to
several other reasons.
Q. Would you tell us what those other reasons
are and where you identified them as potential
causes.
A. As I indicated in my report in some
references, people who are obese, people who are
diabetic, people who use heavy amounts of alcohol
also have a rise or elevation in their liver
enzymes. Therefore not knowing exactly where it
is coming from, whether it is coming from alcohol
or whether it's coming from obesity, you really
don't know -- it could be due to one of the things
I mentioned. It could be due to all of the three,
such as diabetes, obesity, or heavy use of alcohol
can cause elevation in liver enzymes.
Q. Is Mr. Luna overweight?
A. That is correct.
Q. Where did you get that information?
A. From his medical records. Time and time
again he was asked to lose a few pounds since he
was diagnosed as obese.
Q. And is he diabetic?
Page 11
A. He had an elevation in glucose in quite a
few tests plus he also had a history of family
diabetes.
Q. Does he have a history of past alcohol
consumption?
A. That is correct.
(Jejurikar Deposition, pp. 14-15).
Dr. Jejurikar further testified that if the elevated
enzymes had been caused by toluene, he would also anticipate
seeing elevation in certain other enzymes, such as alkaline
phosphatase.
Dr. Jejurikar found no impairment of Mr. Luna which he
could scientifically relate to toluene exposure. He further
testified that exposure to toluene does not caused increased
sensitivity either to toluene itself or other chemicals.
The record contains numerous items of medical
literature. A review of this literature indicates there is
no significant difference in the prevalence of abnormal SGOT
and SGPT levels in solvent-exposed workers compared to a
Page 12
control group, that toluene exposure has not been shown to
lead to liver damage, that a fatty liver associated with
obesity, diabetes or alcoholism can complicate liver
function tests and that heavy drinking is a more profound
cause of abnormal liver function than is exposure to
solvents such as toluene.
Opinions were also received from Paul From, M.D. Dr.
From is a board certified internist who testified by
deposition on September 2, 1992.
Like Dr. Jejurikar, Dr. From has not actually examined
claimant. His opinions are based on medical records and
study of the literature. While Dr. From is not board
certified in either clinical or forensic toxicology, that
science is a part of his practice as an internist, and he
has personally treated patients exposed to toluene.
Dr. From did not see a causal nexus between claimant's
liver enzymes abnormalities and toluene exposure.
Similarly, he believed that claimant had sustained no
permanent impairment attributable to such exposure, pointing
out that any injury to the liver would have been of a
transient nature. And, he did not believe that exposure to
toluene would increase claimant's sensitivity to subsequent
exposure.
After Dr. Thoman released claimant to return to work on
October 31, 1989, he was placed permanently in the press
room as a packer. In approximately November 1990, he
developed additional symptomatology which he ascribes to
exposure to blanket wash (a mixture of aliphatic
hydrocarbons alone or with butyl cellosolve) and ultraviolet
curable coating (which consists of monomeric multifunctional
acrylates and acrylate esters). High concentrations of
blanket wash may produce irritation to the skin, eyes and
respiratory tract and central nervous system affects such as
headaches, dizziness, ataxia, anesthetic stupor and
unconsciousness; or, if butyl cellosolve is contained, lack
of coordination, nausea, and general weakness. UV
ultraviolet curable coating could cause irritation of the
eyes, skin and respiratory tract.
Claimant saw Dr. Robert Conner on November 9 and
November 16, 1990. Complaints were made of anxiety, stress
and chronic headaches. Dr. Conner's assessment was of
uncontrolled hypertension (high blood pressure) and probable
chemical intoxication.
Claimant thereupon returned to Dr. Thoman on November
20, 1990. He prepared a letter on that date stating that
around October 1990, he started noticing changes including
uneasiness, uncertainty and chills along with memory loss
and inability to concentrate. He further complained of an
increase of hair growth all over the body, especially on the
ears, along with insomnia, impotence, headaches, severe mood
swings, depression, hypertension and fear of losing control.
He noted that Dr. Conner had taken him off work for two
months with instructions to avoid chemical exposure. Dr.
Thoman did not return claimant to work until January 25,
Page 13
1991. His diagnosis was of anxiety and physiological
manifestations secondary to previous on the job chemical
exposure.
Asked in his deposition how the secondary complaints
related to the original toluene exposure, Dr. Thoman
testified:
A. The particular chemical that he was
originally exposed to was an aromatic hydrocarbon.
This is not the same category, but close enough
that if an adequate dosage could be encountered by
an individual, it could trigger off primarily a
toxic exposure, causing the signs and symptoms he
complained of, but it could also trigger off a
certain stress reaction as well. I think
subsequent to that visit we suggested counseling,
which we often do.
Q. Did he have both the medical reaction as
well as a stress reaction?
A. That's right.
(Thoman Deposition, pp. 30-31).
Dr. Thoman's reasons for taking claimant off work
related both to the respiratory symptoms and to get
sufficient counseling to obtain specific recommendations.
Mr. Luna was referred to a licensed psychologist, Herbert
Notch, PH.D., for this purpose.
As it happens, claimant had seen Robert T. Brown, M.D.,
in October 1990 with sinus and earache complaints. Dr.
Brown conducted extensive allergy skin testing which found a
significant response to house dust only. In March 1991, Dr.
Brown recommended weekly allergy desensitization injections.
His initial impression had been of right maxillary
sinusitis, possible underlying allergy and bilateral serous
otitis media (inflammation of the ears).
Although Dr. Brown did not diagnose asthma, Dr. Thoman
testified that claimant had some asthmatic bronchial spasm
which he did not feel was precipitated by pollens or house
dust. However, Dr. Thoman agreed that allergy could have
played a part in those reactions.
Once again, Dr. Jejurikar proved of a different mind.
He specified that exposure to blanket wash and UV coating
did not cause panic attacks, anxiety, sinus problems or
asthma. Nor would either increase susceptibility or
reactivity to future exposures. Dr. Jejurikar agreed that
claimant's panic disorder could have resulted from emotional
stress related to his worrying about chemical exposure to
blanket wash or UV coating, but that the substances
themselves would not actually cause anxiety. He did not
testify as to why he believed these substances did not cause
respiratory problems, nor did he address that issue in his
otherwise detailed and persuasive report dated August 24,
1992.
Page 14
Dr. From testified that he did not believe claimant
suffered chemically induced asthma, noting that his symptoms
could readily be explained by his allergy to dust and noting
that claimant had many ear, nose and throat problems by
history. He also noted that there are many causes for
lightheadness, blurred vision and headaches, but expressed
no opinion as to whether a causal nexus existed between such
symptoms and exposure to blanket wash or UV coating.
As noted above, Dr. Thoman referred claimant in 1990 to
Dr. Notch, a clinical psychologist. Dr. Notch testified by
deposition on August 14, 1992. His three part diagnosis was
of panic disorder with agoraphobia, probable mild to
moderate agoraphobia and possible post traumatic stress
disorder. Dr. Notch agreed that claimant had a number of
preexisting psychological problems due primarily to family
problems, but that his "work situation" caused a temporary
aggravation of those preexisting problems, a temporary
aggravation which he would expect to resolve. Dr. Notch
could not testify to permanent psychological changes based
upon the acute episode in late 1990 and early 1991. Dr.
Notch continued treating claimant until March 1992. He
concurred with Dr. Thoman that claimant was appropriately
off work for psychological problems from November 21, 1990
through January 21, 1991. Dr. Notch pointed to claimant's
state of anxiety as due to his association of current
problems with what he considered a deleterious previous
toxic exposure and also a phobic reaction wearing a face
mask while at work.
It is worth noting that claimant's family was more or
less simultaneously going through family therapy with DeVon
R. Stokes, Ph.D, another licensed psychologist. Dr. Stokes'
letter of December 5, 1990, indicates severe and
longstanding family problems, including alcohol abuse,
physical violence and a lack of respect shown claimant's
wife by Mr. Luna.
conclusions of law
Although claimant alleged but a single injury, that of
September 18, 1989, this decision treats the allegations of
exposure in 1989 and 1990 separately. This decision holds
that claimant did not prove injury arising out of and in the
course of employment in 1989, but that he did meet his
burden of proof on that issue with respect to the 1990
claimed exposure.
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).
Page 15
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).
A personal injury contemplated by the workers'
compensation law means an injury, the impairment of health
or a disease resulting from an injury which comes about, not
through the natural building up and tearing down of the
human body, but because of trauma. The injury must be
something which acts extraneously to the natural processes
of nature and thereby impairs the health, interrupts or
otherwise destroys or damages a part or all of the body.
Although many injuries have a traumatic onset, there is no
requirement for a special incident or an unusual occurrence.
Injuries which result from cumulative trauma are
coailed
to mention these alarming symptoms to Dr. Schossow. It
seems stranger yet that although claimant allegedly
developed phobias, anxieties, insomnia and increased
confusion between July and September, he failed to mention
any of these symptoms to Dr. Shires on September 11 and, as
noted, that he gave an ambivalent and inconsistent history
to Dr. Thoman.
As for the rise in SGOT and SGPT enzymes, the opinion
of Dr. M. Jejurikar as supported by the medical literature
is found more persuasive than the opinion of Dr. Thoman.
Alcohol abuse has been shown to be a much more probable
cause. Claimant had a long history of alcohol abuse and,
although he testified to having discontinued alcohol at
Thanksgiving 1988, he also gave a false history to Dr.
Schossow on this subject ("he has not consumed significant
amounts of alcohol in several years"). The medical
literature does not support an association between toluene
exposure and elevation of those two enzymes. By the time
Dr. Thoman saw claimant and took him off work, he had long
since been removed from toluene exposure and his enzymes had
already returned to normal. Why Dr. Thoman took claimant
off work on the alleged injury date of September 18 is
extremely unclear, since every requirement for claimant's
eventual return to work was already in place (enzymes
returned to normal and claimant assigned a job away from
toluene exposure).
Although claimant also complains of numerous other
symptoms, his reporting of those symptoms to the relevant
treating physicians at the time in question was either
inconsistent or nonexistent and, we must not forget that Mr.
Luna has suffered chronic psychological problems related by
Dr. Notch to his on-going family problems and childhood
experiences.
Claimant's reported symptoms and one sign (elevated
liver enzymes) are not proven on this record to be caused by
toluene exposure. While it is a reasonable prophylactic
measure to move claimant away from toluene exposure for the
future, it has similarly not been shown that toluene
exposure causes increased sensitivity and danger to future
toluene exposure. Dr. Jejurikar's opinion on this "clinical
ecology" theory is much more in keeping with the mainstream
of current medical thought.
Interestingly, even if it were determined that
claimant's symptomatology in 1989 was caused by Toluene
exposure, Mr. Luna would not be entitled to recover for
temporary disability or permanent disability (medical
expenses are not at issue). No healing period or temporary
total disability could be found in this record, because it
has not been shown that claimant's loss of work was
medically necessary, since his condition was the same when
Page 17
he was taken off work by Dr. Thoman as when he was returned
to work by Dr. Thoman. Permanency benefits would be
appropriate if toluene exposure caused increased sensitivity
to toluene, thus leading to a necessary change in job
responsibilities (and less actual income). The record,
however, does not support that theory.
The record is much scantier with respect to the 1990
exposure to blanket wash and UV coating. Claimant had some
respiratory symptoms and an onset of acute psychological
problems against the backdrop of his chronic condition. Dr.
Jejurikar baldly states there is no causal connection, but
in this case Dr. Thoman's opinion seems the better reasoned,
since it takes into account respiratory symptoms that
claimant clearly experienced. Dr. Thoman and Dr. Notch
relate psychological problems to the exposure, although Dr.
Notch (although he is a psychologist rather than a
physician, his opinion is detailed and expert) ties the
onset of acute symptomatology also to a phobia about Mr.
Luna's face mask. By reason of the psychological problems
and respiratory problems together, claimant has established
entitlement to temporary total disability from November 21,
1990 through January 21, 1991. The division will be ordered
to prepare a second litigated file with an injury date of
November 21, 1990. In this case, it does not appear that
defendants will be prejudiced by "creating" a second injury
date. Nonetheless, claimant's procedure in pleading but a
single injury date in 1989 is a dangerous practice and one
not to be approved. The 1990 problems could be compensable
under a 1989 injury date only if those symptoms were found
to be sequelae of the original Toluene exposure. This is a
fragile thread with which to attach potential liability.
However, claimant is not entitled to permanent
industrial disability with respect to the 1990 exposure. He
is back to work without loss of earning capacity. Dr.
Jejurikar's opinion that this exposure has not increased his
sensitivity is accepted in preference to the opinion of Dr.
Thoman. The psychological problems constitute a single
episode only, and in the nature of a temporary aggravation
of a preexisting condition. Industrial disability has not
been shown.
In the absence of contrary evidence, claimant's gross
weekly earnings, martial status and exemptions will be
assumed to be identical to the parties' stipulation relative
the 1989 claim. The rate book published by this office
shows that a married individual with a gross weekly wage of
$410 and entitlement to six exemptions has a rate of $276.67
per week.
Temporary total disability of 8.857 weeks at the
compensation rate of $276.67 equals $2450.46.
Exhibit 16 shows that defendants are entitled to credit
under Iowa Code section 85.38(2) in the sum of $2,099.59.
Therefore, claimant takes $350.87.
order
Page 18
THEREFORE IT IS ORDERED:
In case no. 971311: claimant takes nothing.
In case no. 1034572:
The division shall create a new litigated file showing
an injury date of November 21, 1990.
Defendants shall file a first report of injury within
thirty (30) days of the filing of this decision.
Defendants shall pay claimant two thousand four hundred
fifty and 46/100 dollars ($2,450.46) in temporary total
disability benefits, commencing November 21, 1990.
All accrued benefits shall be paid in a lump sum with
statutory interest.
Defendants shall have credit in the sum of two thousand
ninety-nine and 59/100 dollars ($2,099.59).
Costs of this action are assessed to defendants.
Signed and filed this ____ day of February, 1993.
______________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Arthur C Hedberg Jr
Attorney at Law
840 5th Avenue
Des Moines Iowa 50309
Mr Charles E Cutler
Attorney at Law
729 Insurance Exchange Building
Des Moines Iowa 50309
1108.30; 2205; 2910; 3700
Filed Feburary 25, 1993
DAVID R. RASEY
before the iowa industrial commissioner
____________________________________________________________
:
ROMAN LUNA, :
:
Claimant, :
:
vs. : File Nos. 971311
: 1034572
MEREDITH/BURDA, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1108.30; 2205; 2901
Claimant alleged exposure to different toxic substances in
1989 and 1990, but alleged only a single 1989 injury date.
No 1989 injury was found, but claimant proved a temporary
disability from toxic exposure in 1990. The division was
ordered to prepare a second litigated file for that injury
date, and defendant was ordered to file a first report.
No permanency found. Claimant was entitled to temporary
total disability.
3700
Under 17A.14(5), the agency's experience, technical
competence and specialized knowledge were utilized in the
evaluation of Dr. Thoman's testimony. It was recognized
that Dr. Thoman has been seen as holding views similar to
devotees of "clinical ecology," a controversial theory not
accepted by the mainstream of current medical thought.