Page 1
before the iowa industrial commissioner
____________________________________________________________
:
GLEN A. CULP, :
:
Claimant, :
:
vs. :
: File No. 972536
RUBBERMAID COMMERCIAL PROD., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
AMERICAN MANUFACTURING MUTUAL :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
This is a proceeding in arbitration brought by Glen A.
Culp, claimant, against Rubbermaid Commercial Products,
employer and American Manufacturing Insurance Company,
insurance carrier, to recover benefits under the Iowa
Workers' Compensation Act as a result of an alleged injury
sustained on November 24, 1990. This matter came on for
hearing before the undersigned deputy industrial
commissioner on February 25, 1992, in Ottumwa, Iowa. The
record was considered fully submitted at the close of the
hearing. Claimant was present and testified at the hearing.
Also present and testifying was Debbie Mitchell. The
documentary evidence in this case consists of joint exhibits
1 through 9 and claimant's exhibits A through H.
issues
Pursuant to the prehearing report and statements made
by the parties at the hearing in this matter, the following
issues have been presented for resolution:
(). Whether claimant sustained an injury to his left
hand and wrist on November 24, 1990, arising out of and in
the course of his employment with employer;
(). Whether claimant's alleged injury is a cause of
temporary disability during a period of recovery;
(). Whether there is a causal relationship between
claimant's employment and his disability; and
(). Whether claimant is entitled to medical benefits
under Iowa Code section 85.27.
findings of fact
The undersigned has carefully considered all the
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testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Claimant is 40 years old and a high school graduate.
He commenced working for employer on October 12, 1990, and
worked approximately 21 days before allegedly sustaining an
injury on November 24, 1990.
Claimant testified that he was asymptomatic prior to
his employment with Rubbermaid. He stated he had no prior
pain or numbness in his left hand and his symptoms developed
during his tenure with employer. He sought medical
treatment with his family physician, Stephen E. Sparks,
M.D., who took him off work and put his wrist in a splint.
When his problems continued, he was referred by Dr. Sparks
to the company doctor who sent him back to Dr. Sparks. Dr.
Sparks then referred claimant to Brent L. Dixon, D.O., who
diagnosed left carpal tunnel syndrome. Dr. Dixon referred
claimant to Michael L. Pogel, M.D., for neurological
testing. Dr. Pogel referred claimant to John J. Finneran,
M.D., for surgery.
Claimant testified that he was released to return to
work on February 24, 1991, and has no permanent impairment
to his left hand as a result of his November 1990 injury.
A review of the pertinent medical evidence of record
reveals that claimant reported to Dr. Sparks on November 27,
1990, complaining of numbness in his left fingertips. He
was given a cortisone injection and released for light duty
with limitations (exhibit 6, page 2).
His complaints persisted and Dr. Sparks referred him to
Dr. Dixon, an orthopedist, for further evaluation. Dr.
Dixon diagnosed carpal tunnel syndrome which was confirmed
with an EMG/nerve conduction test performed on December 14,
1990. Because of Dr. Dixon's service in Desert Storm, he
was unable to perform surgery. He referred claimant to Dr.
Finneran. He performed out-patient left carpal tunnel
release on January 2, 1991 (ex. 2, pp. 1-7).
conclusions of law
The first issue to be determined by the undersigned is
whether claimant sustained an injury on November 24, 1990,
which arose out of and in the course of his employment with
Rubbermaid.
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on November 24,
1990, which arose out of and in the course of his
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904,
908 (Iowa 1976); Musselman v. Central Telephone Co., 154
N.W.2d 128, 130 (Iowa 1967). The words "arising out of"
have been interpreted to refer to the cause and origin of
the injury. McClure v. Union County, 188 N.W.2d 283, 287
(Iowa 1971); Crowe v. DeSoto Consolidated School District,
68 N.W.2d 63, 65 (Iowa 1955). The words "in the course of"
refer to the time, place and circumstances of the injury.
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McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. An
injury occurs in the course of the employment when it is
within the period of employment at a place the employee may
reasonably be, and while the employee is doing work assigned
by the employer or something incidental to it. Cedar Rapids
Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa
1979), McClure 188 N.W.2d at 287; Musselman, 154 N.W.2d at
130.
The Supreme Court has defined a personal injury for the
purposes of workers' compensation cases. Almquist v.
Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this
case the Court found that a personal injury, is an injury to
the body, the impairment of health, or a disease, not
excluded by the Workers Compensation Act, which comes about,
not through the natural building up and tearing down of the
human body, but because of a traumatic or other hurt or
damage to the health or body of an employee. The injury to
the human body must be something, whether an accident or
not, that acts extraneously to the natural processes of
nature, and thereby impairs the health, overcomes, injures,
interrupts, or destroys some function of the body, or
otherwise damages or injures a part or all of the body.
The Almquist Court further observed that while a
personal injury does not include an occupational disease
under the Workmen's Compensation Act, yet an injury to the
health may be a personal injury. A personal injury includes
a disease resulting from an injury. However, the result of
changes in the human body incident to the general processes
of nature do not amount to a personal injury. This is true,
even though natural change may come about because the life
has been devoted to labor and hard work. Results of those
natural changes do not constitute a personal injury even
though the same brings about impairment of health or the
total or partial incapacity of the functions of the human
body.
The Supreme Court has also recognized that a cumulative
injury may occur over a period of time. The injury in such
cases occurs when, because of pain or physical disability,
the claimant is compelled to leave work. McKeever Custom
Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985).
Moreover, claimant's last employer becomes liable for the
cumulative injury, even if the incidents that lead to the
ultimate injury do not occur while a claimant is employed
with the last employer. McKeever, 379 N.W.2d at 376; See
also, Doerfer Division of CCA v. Nicol, 359 N.W.2d 428,
434-35 (Iowa 1984).
The uncontroverted evidence in this case clearly
demonstrates that claimant suffered a cumulative injury that
came on gradually. This gradual injury developed over the
course of time and finally resulted in claimant having to
leave work and procure medical treatment, including surgical
intervention, to cure his medical problem.
Claimant testified that during his employment with
Rubbermaid, he worked 12 hours a day, repeatedly lifting
objects weighing between 25 and 30 pounds. During the
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course of the 12-hour work day, claimant handled several
hundred objects that required gripping, prying and lifting
activities on a fairly constant and repetitive basis. Dr.
Sparks testified in a deposition on February 19, 1992, that
those types of work activities could certainly cause or
aggravate a carpal tunnel syndrome (ex. 9).
Dr. Dixon reported on November 7, 1991, that while he
could not say whether Mr. Culp's condition existed prior to
his employment with Rubbermaid, he could say that the
repetitive motion tasks of his employment exacerbated his
condition (ex. 3, p. 5). Dr. Finneran stated, without
explanation, that "[I]t would require long (months or years)
repeated motion to cause carpal tunnel." (ex. 7).
After carefully considering the total evidence in this
case, the undersigned concludes that the greater weight of
the evidence supports the finding that claimant's left
carpal tunnel syndrome arose out of and in the course of his
employment with employer and the disability on which he
bases his claim is causally connected to such employment.
While expert medical evidence must be considered with
all other evidence introduced bearing on causal connection,
expert opinion may be accepted or rejected, in whole or in
part, by the trier of fact. The weight to be given to
expert opinion is for the finder of fact and that may be
affected by the completeness of the premise given the expert
and other material circumstances. Burt v. John Deere
Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955);
Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867
(1965); and Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa
1974).
Based on this finding, claimant is entitled to weekly
compensation for temporary total disability benefits for the
period from November 27, 1990 through February 24, 1991, at
the stipulated rate of $142.77 per week.
The final issue to be determined is whether claimant is
entitled to medical benefits under Iowa Code section 85.27.
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Section 85.27.; Holbert v.
Townsend Engineering Co., Thirty-second Biennial Report of
the Industrial Commissioner 78 (Review-reopen 1975).
Claimant has the burden of proving that the fees charged for
such services are reasonable. Anderson v. High Rise Constr.
Specialists, Inc., File No. 850096 (App. 1990).
Claimant is not entitled to reimbursement for medical
bills unless claimant shows they were paid from claimant's
funds. See Caylor v. Employers Mut. Casualty Co., 337
Page 5
N.W.2d 890 (Iowa Ct. App. 1983).
When a designated physician refers a patient to another
physician, that physician acts as the defendant employer's
agent. Permission for the referral from defendants is not
necessary. Kittrell v. Allen Memorial Hospital,
Thirty-fourth Biennial Report of the Industrial Commissioner
164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
An employer's right to select the provider of medical
treatment to an injured worker does not include the right to
determine how an injured worker should be diagnosed,
evaluated, treated or other matters of professional medical
judgment. Assmann v. Blue Star Foods, Inc., File No. 866389
(Declaratory Ruling, May 18, 1988).
This agency has consistently held that defendants
cannot deny that an injury arose out of and in the course of
employment on one hand and seek to guide medical treatment
on the other. Barnhart v. MAQ, Inc., I Iowa Industrial
Commissioner Report 16 (Appeal Decision 1981). Since
claimant's injury has been found to be compensable,
defendants are liable for the medical expenses incurred for
treating that injury. Those expenses are set out in
claimant's exhibit number one, A through H.
order
THEREFORE, IT IS ORDERED:
That defendants shall pay to claimant twelve point
eight five seven (12.857) weeks of temporary total
disability benefits at the rate of one hundred forty-two and
77/100 dollars ($142.77) per week for the period from
November 27, 1990 through February 24, 1991.
That defendants shall pay for all medical expenses
incurred for treatment of claimant's November 24, 1990,
injury as set out in claimant's exhibit number one, A
through H.
That defendants shall pay accrued amounts in a lump
sum.
That defendants shall pay interest pursuant to Iowa
Code section 85.30.
That defendants shall pay the costs of this action
pursuant to rule 343 IAC 4.33.
That defendants shall file claim activity reports as
required by this agency.
Signed and filed this ____ day of March, 1992.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
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Copies to:
Mr. Vern M. Ball
Attorney at Law
207 S. Washington Box 129
Bloomfield, Iowa 52537
Mr. Craig Levien
Attorney at Law
600 Union Arcade Bldg.
111 E. 3rd St.
Davenport, IA 52801-1550
Page 1
51801 52500
Filed March 3, 1992
Jean M. Ingrassia
before the iowa industrial commissioner
____________________________________________________________
:
GLEN A. CULP, :
:
Claimant, :
:
vs. :
: File No. 972536
RUBBERMAID COMMERCIAL PROD., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
AMERICAN MANUFACTURING MUTUAL :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
51801
Defendants deny that claimant's carpal tunnel syndrome arose
out of and in the course of employment with employer.
Although claimant only worked for employer 21-work days, his
work activity consisted of repetitive and frequent lifting,
prying, pushing, and gripping heavy objects on a sustained
basis during a 12-hour work day. Physicians who treated
and/examined claimant testified that these activities could
have caused or contributed to claimant's medical problem.
Defendants produced no evidence to the contrary. Therefore,
claimant was found entitled to temporary total disability
benefits from November 27, 1990, through February 24, 1991.
52500
Under Iowa Code section 85.27, the employer has the right to
chose the provider of care, except where the employer has
denied liability for the injury. Furthermore, defendants
cannot deny that an injury arose out of and in the course of
employment on the one hand and seek to guide medical
treatment on the other. Barnhart v. MAQ, Inc., I Iowa
Industrial Commissioner Report 16 (Appeal Decision 1981).
Defendants found liable for all of claimant's medical bills
incurred during the course of treatment for his work-related
injury.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RONNIE HANEN,
Claimant,
vs.
File No. 972610
STEVER'S CITY SANITATION,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
UNITED FIRE & CASUALTY CO.,
Insurance Carrier,
Defendants.
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration filed by Ronnie
Hanen, claimant, against Stever's City Sanitation, Inc.,
employer and United Fire & Casualty Co., insurance carrier,
defendants, for benefits as the result of an injury which
occurred on December 10, 1990. A hearing was held on May
18, 1993 in Des Moines, Iowa and the case was fully
submitted at the time of the hearing. The hearing was
scheduled to last for three hours, but due to a lack of
preparation on the part of both parties the hearing actually
lasted a period of eight hours from 1:00 p.m. in the
afternoon until 9:00 p.m. in the evening. The first two
hours of the hearing, which covered 60 pages of the 268 page
transcript, were consumed resolving matters the parties
should have resolved prior to hearing or which the parties
should have been better prepared to present to the deputy
for resolution at the time of the hearing (Tran. pp. 1-60 &
Tran. pp. 50 & 60).
The record consists of the testimony of Ronnie Hanen,
claimant, R. Dallas Jones, Ph.D. a clinical
neuropsychologist, Harry Stever, defendant-employer, LuRie
Fairlie, insurance carrier's claim representative, William
Catalona, M.D., defendants' evaluating orthopedic surgeon,
claimant's exhibits 1 through 10 with the exception of
exhibit 8 which was excluded because it was not timely
served (Tran. pp. 32, 35 & 42) and defendants' exhibits A
through J. Some of these exhibits are duplicated because
the parties failed to get together prior to hearing and
agree upon a joint exhibit and otherwise prepare the case
pursuant to the instructions in the hearing assignment
order.
The testimony of Melvin Luke, Michael Simons and LuRie
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Fairlie were excluded at the objection of claimant for the
reason that defendants failed to serve a timely witness list
on claimant and claimant alleged unfair surprise which was
prejudicial. LuRie Fairlie was subsequently permitted to
give limited rebuttal testimony. Michael Simons was allowed
to make an offer of proof out of the presence of the deputy.
The testimony of Irma Hanen, claimant's mother, was excluded
at the objection of defendants for the reason that claimant
did not serve a timely witness list on defendants and
defendants indicated they were unfairly surprised.
Ronnie Hanen was allowed to testify as claimant's
representative and Harry Stever was allowed to testify as
employer's representative (Tran. pp. 19-23).
At the time of the prehearing conference report dated
January 11, 1993, the issue of injury arising out of and in
the course of employment was not identified as an issue to
be determined in this case. Seven days prior to hearing
(May 11, 1993) defendants asserted to claimant that injury
arising out of and in the course of employment was to be an
issue in this case. Defendants were not allowed to assert
injury arising out of and in the course of employment as an
issue to be decided at this hearing for the reason that the
assertion was not timely made. Claimant justifiably
asserted surprise and prejudice. The hearing assignment
order states "unless otherwise agreed in writing, the issues
to be heard are those identified in the prehearing
conference report." Paragraph 10. Hearing Issues, Hearing
Assignment Order dated February 1, 1993 (Transcript page
49). The deputy ruled that injury arising out of and in the
course of employment would not be one of the issues to be
determined by this decision (Tran, pp. 14 & 23) but rather
it was excluded as an issue to be determined by this hearing
(Tran, pp. 14 & 25). Actually, defendants did not dispute
injury but rather the extent of injury caused by this injury
(Tran. p. 14).
ISSUES
The parties presented the following issues for
determination at the time of the hearing.
Whether claimant is entitled to temporary disability
benefits for the period from December 10, 1990, the date of
the injury, until February 6, 1991 when defendants began
paying temporary disability benefits.
Whether the injury was the cause of permanent
disability.
Whether claimant is entitled to permanent disability
benefits, and if so, the nature and extent of benefits to
which claimant is entitled, to include whether claimant is
entitled to permanent disability benefits for a scheduled
member injury or whether claimant is entitled to permanent
disability benefits for an injury to the body as a whole
because the knee injury aggravated a preexisting peptic
ulcer condition and a preexisting mental depression
condition.
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What is the proper rate of compensation.
Whether claimant is entitled to penalty benefits.
Whether claimant is entitled to an independent medical
examination.
PRELIMINARY MATTER
Medical benefits were asserted as a hearing issue.
However, the parties agreed that all medical benefits had
been paid at the time of the hearing, except some recent
bills which are contained in exhibit 8 which defendants had
never seen before. Exhibit 8 was excluded from evidence for
the reason that it was not timely served pursuant to the
hearing assignment order and constituted unfair surprise.
Nevertheless, if claimant can demonstrate to defendants that
these bills were reasonable treatment for this injury
defendants would be obligated to pay them pursuant to Iowa
Code section 85.27.
FINDINGS OF FACT
entitlement to temporary disability benefits
It is determined that claimant is not entitled to
temporary disability benefits for the period from December
10, 1990 to February 6, 1991.
It is true that claimant was injured on December 10,
1990, when he jumped from the garbage truck on which he was
riding and injured his left knee. However, it cannot be
established from any source that claimant was unable to work
because of this injury during the period of time from
December 10, 1990 to February 6, 1991.
Claimant did not testify that he was unable to work
during this period of time. No other lay witness testified
that claimant was unable to work during this period of time.
Claimant testified that his mother and wife called employer
to report that he would not be at work, but claimant did not
testify that it was because he was unable to work because of
this injury.
Employer testified that claimant picked up his check,
for Monday, December 10, 1990 on Friday December 14, 1990
and said that he would be reporting in to work on Monday,
December 17, 1990. Employer observed no signs of injury at
that time (Tran. pp. 181 & 182). When claimant did not show
up on Monday employer terminated claimant.
Employer testified that he saw claimant a few days
after the injury and drank a beer with him on the hood of a
car and claimant did not mention that he was injured nor did
he appear to be injured (Tran. p. 184).
When claimant was checked into and out of jail on
December 12 and 13 of 1990, the form completed by the
arresting officer, Michael S. Simons, does not indicate that
Page 4
the claimant was or was not suffering from a left knee
injury or that he required any special treatment for any
kind of unusual health condition (Res. Ex. J).
Claimant testified he had no recollection of being
booked into the jail at that time (Tran. pp. 111 -113).
No physician has stated that claimant was unable to
work during this period of time (1) even though there is a
deposition in evidence from Donald D. Berg, M.D., the
treating orthopedic surgeon, and (2) even though William
Catalona, M.D., an evaluating orthopedic surgeon testified
in person at the hearing and also gave a medical report, and
(3) even though there is a lengthy independent medical
evaluation and report from William J. Minks, M.D., J.D. In
spite of all of this medical evidence, none of these
physicians gave a professional medical opinion that claimant
was unable to work during this period of time from December
10, 1990 to February 6, 1991 (Exs. A, B, D, and 1).
Defendants voluntarily paid claimant for the period
from February 6, 1993, when he first saw a physician for
this injury, until August 12, 1991, when this same physician
provided information to the satisfaction of defendants that
claimant was no longer entitled to temporary disability
benefits. There is evidence that Dr. Berg released claimant
to full activity and full work as of August 12, 1991,
however, Dr. Berg qualified this statement by saying that
claimant was not to jump on the left knee for about six
months to a year following the surgery (Ex. A, p. 17).
Claimant requested a determination of the proper rate
of compensation for this period of time and this will be
done under the rate determination section of this decision.
Wherefore, it is determined, as a matter of fact, that
claimant is not entitled to temporary disability benefits
for the period from December 10, 1990 to February 6, 1991.
causal connection/entitlement/permanent disability
With respect to causation of disability, Dr. Berg
stated several times in his records and reports (Ex. B-2,
B-3, B-4-1, B-7-1, B-10-1, and B-12) and in his deposition
testimony (Ex. A, p. 25) that this injury was caused by
claimant's work. It is determined that the resulting
treatment and disability therefore was also caused by this
injury. Dr. Berg did not suspect or suggest any other cause
for claimant's injury and disability. Dr. Berg stated that
claimant had no prior history any locking episodes with his
knees or problems along that line prior to December 10, 1990
(Tran. p. 195; Ex. B-2). Employer was not aware of any
problem claimant was having with his knees prior to the
injury of December 10, 1990 and that he was able to jump on
and off of trucks before that (Tran. p. 185). Claimant
denied any subsequent injuries to his knee (Tran. p. 81).
Dr. Catalona and Dr. Minks also proceeded to make their
impairment evaluations on the basis of the facts of this
injury and the resulting surgeries that were performed to
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treat this injury. Likewise, they did not dispute that
claimant's disability, if any, occurred from anything other
than this injury (Ex. A & Ex. 1).
Claimant did injure his left knee in a motorcycle
accident six months to a year prior to this injury. He said
it swelled up but within a week he was back to work lifting,
running, and jumping on and off of the garbage truck without
difficulty. Claimant did not see a doctor or receive any
medical attention for this motorcycle injury (Tran. pp. 76,
95 & 96). Claimant was able to work on the garbage truck
after the motorcycle accident (Tran. p. 128). There is no
evidence to suggest that the motorcycle accident in anyway
contributed to claimant's current disability other than pure
speculation.
In summary, all of the doctors, Dr. Berg, Dr. Catalona,
and Dr. Minks all proceeded on the basis that this injury
was the cause of any existing permanent disability or
continuing problems that claimant may or may not have with
respect to his left knee. None of the doctors determined
that there was any other cause for this current left knee
disability. The fact that this injury was the cause of any
existing impairment was not disputed by any of the doctors,
however, Dr. Berg did not think that there was any
impairment.
Wherefore, it is determined that the injury of December
10, 1990, was the cause of claimant's permanent impairment
in his left knee.
With respect to nature and extent of disability,
claimant received an arthoscopic surgery from Dr. Berg on
February 20, 1991. His preoperative diagnosis was torn
medial meniscus, however, his postoperative diagnosis was a
tear of the anterior cruciate ligament. During the
arthoscopic examination Dr. Berg removed a portion of the
torn cruciate ligament (Ex. B-7-1). Quadracep and hamstring
exercises did not restore the stability to claimant's left
knee, but rather it continued to give out. Therefore, on
April 10, 1991, Dr. Berg performed an arthrotomy of the left
knee with a replacement of the torn anterior cruciate
ligament with the central third of the patellar tendon (Ex.
B-11-1).
About a year later Dr. Berg made an evaluation on March
4, 1991, which he worded as follows:
Consultation
3-4-92
This is a 25 y/o who is postop anterior
cruciate ligament repair on his left knee. He is
doing very well. His knee is stable and has not
gone out on him. He feels like his strength has
returned. He has full ROM, good quad and
hamstring function and he is released from further
follow up. He appears to have full functional
return and has no longterm permanent physical
Page 6
impairment. Donald D. Berg, M.D. (Ex. B-15)
In his deposition on May 11, 1993, seven days prior to
hearing, Dr. Berg admitted that he had not seen claimant
since March 4, 1992. There is no evidence that Dr. Berg
used a goniometer or used the AMA Guides or any other
established criteria to arrive at this determination.
Apparently defendants attempted to obtain a current
specific numerical impairment rating from Dr. Berg
subsequent to March 4, 1992 but they were unable to do so.
Dr. Berg wrote to defendants' counsel on March 22, 1993 as
follows.
I have reviewed his record and it appears now
he has some limitation of motion and some weakness
since I have seen him. I requested that he come
in for an evaluation so I can give you the current
status on this patient, however, he is now in the
alcoholic ward in Burglington [sic] and apparently
will be there for five to six months and cannot
leave for any appointments. At this point, I
cannot give you any impairment rating or any
current status report on this individual.
...
As referencing Dr. Mink's report, I cannot
state, at the present time, a response to this
report as far as the physical impairment of his
leg is concerned as I have not seen the patient
since back on March 4, 1992. However, I would
state, at that time, I did not feel he would have
any impairment with regard to his leg. As far as
the other impairments [ulcers and depression] that
Dr. Mink's found, I do not feel these are related
to his two knee surgeries. (Ex. A, Dep Ex. 4)
The bracketed material was added by the deputy.
Thus, even though Dr. Berg was unable to give a final
impairment rating, based on the physical condition that Dr.
Minks and Dr. Catalona examined, nevertheless, Dr. Berg
indicated that there was no permanent impairment based upon
his last observation of claimant. At the same time, since
Dr. Berg did not perform a comparable examination, it must
be said that his testimony on permanent impairment of the
left knee is somewhat inconclusive and incomplete. Dr. Berg
acknowledged that he did not know, one way or the other,
whether or not claimant was currently having symptomatology
including intermittent knee pain, numbness, or a sensation
that his knee is going to pop out of place when he exerts
pressure on his knee (Ex. A, p. 26). Dr. Berg further
acknowledged that after this kind of surgery it is possible
for a patient to lose quad strength and hamstrength if they
do not exercise the knee "as time goes on through life" to
keep your leg strengthened up (Ex. A, p. 29).
With respect to claimant's alleged ulcer and mental
depression complaints, Dr. Berg did testify in his
deposition on May 11, 1993 and in his letter to defendants'
Page 7
counsel on March 22, 1993, that he did not believe that
claimant's alleged depression and alleged peptic ulcer
disease were related to the two knee surgeries (Ex. A, p.
27, Dep. Ex. 4). Dr. Berg said that claimant made no
complaints about an ulcer or mental depression at the time
he was treating claimant's left knee (Tran. p. 32 & 33).
Claimant was examined by Dr. Minks on January 14, 1993,
as an independent medical examiner for claimant and he
submitted a 19 page report including attachments (Ex. 1).
Dr. Minks has several qualifications, one of which is a
Fellow American Academy and Disability Evaluating Physicians
(Ex. 10). With respect to the left knee Dr. Minks made a
detailed application of the Guides to the Evaluation of
Permanent Impairment, Third Edition, Revised, and using
goniometer measurements he explained in detail how he
applied Table 40 on page 68, item number 6, to arrive at a
10 percent permanent impairment based on the anterior
cruciate ligament repair and continuing symptomatology. He
explained also how he applied Table 39, page 68 to
claimant's range of motion on three separate tests and
arrived at an 11 percent permanent impairment of the lower
extremity. Combining these two values as he was instructed
to do by the AMA Guides he found that claimant sustained a
20 percent impairment to the left lower extremity (Ex. 1, p.
13).
Dr. Minks said that the continuing symptomatology was
related to be intermittent knee pain precipitated by
anything that exerts pressure on the knee, a numb sensation
in his left knee caused by prolonged standing and a feeling
that the knee will pop out again when he exerts pressure on
the knee. Dr. Minks indicated that claimant should not
engage in prolonged standing in one position for more than
15 minutes without being able to move around. He should
limit climbing ladders and squatting and kneeling to
occasionally. He should be prohibited from crawling (Ex. A,
pp. 5, 12, 15 & 16).
Dr. Minks also awarded a 9 percent body as a whole
impairment based on a deterioration of claimant's peptic
ulcer disease caused by the injury to his left knee due to
the anti-inflammatory medications required to treat the
inflammation in the knee (Ex. 1, p. 14).
In addition, Dr. Minks assessed a 10 percent impairment
to the body as a whole based on an aggravation of claimant's
chronic mental depression caused by increased guilt, lowered
self-esteem and "dipair" [sic] of his depression (Ex. 1, pp.
14 & 15).
Dr. Catalona examined claimant as an independent
evaluator for defendants shortly before the hearing and made
a report on March 30, 1993 (Ex. D). Dr. Catalona also
testified at the hearing (Tran. pp. 202-249). Dr. Catalona
had the advantage of the reports of both Dr. Berg and Dr.
Minks as well as the opportunity to physically examine
claimant (Tran. p. 206). The doctor said he found a
practically normal left knee except for the fact that
claimant had surgery on two different occasions (Tran. pp.
Page 8
206 & 207). In the opinion of the deputy, a knee with two
surgeries would be significantly different from a
practically normal left knee which had never been injured
and never had received any surgeries. Dr. Catalona said
there was no loss of range of motion in claimant's left knee
(Tran. p. 116; Ex. D p. 2).
Claimant testified that he has had continuing problems
with his left knee and that he has seen a doctor shortly
before the hearing who ordered an x-ray to diagnose his
continuing complaints (Tran. p. 83).
With respect to peptic ulcers, Dr. Catalona stated, "I
see absolutely no correlation." (Tran. p. 224). Dr.
Catalona further stated that it would be very unusual that
the knee injury in this case would cause a mental depression
(Tran. p. 225).
In his written report dated March 30, 1993, Dr.
Catalona stated,
I find no indication that the injury of this
knee is related to his peptic ulcer disease nor to
his intermittent episodes of depression. If the
knee injury could have been a cause of these
problems, the knee is now so well healed that it
would not be a medical cause of his complaints.
(Ex. D, p. 2).
Dr. Catalona found that claimant sustained a 5 percent
impairment of the left leg (Tran. p. 215; Ex. D, p. 3). Dr.
Catalona did not say how he measured this degree of loss, if
in fact, it is based upon any physical measurement. Nor did
Dr. Catalona say whether his rating was based on the AMA
Guides, the Orthopedic Surgeons' Guide, or any other
generally accepted rating criteria. Dr. Catalona is a long
time practitioner and a board certified orthopedic surgeon
and apparently his rating is based upon his many years of
experience in his profession.
With respect to claimant's ulcers, claimant testified,
Q. Okay. Now, have you had a previous problem
with a peptic ulcer?
A. Yes. It's always been a problem. I mean,
I had surgery on it, what, at the beginning of '90
or end of '89, somewhere like that.
Q. Okay. so what kind of a problem is it? I
mean, what happens to you?
A. I just worry all the time about everything
(Tran. p. 85).
With respect to his mental depression claimant
testified as follows,
Q. Okay. All right. Now, is it -- would it
be correct to say that you've had depression in
Page 9
the past?
A. Yeah. I mean, I've had it for years.
Q. Okay. When your knee got hurt, did that
have an effect on your depression?
A. I don't know. It pissed me off; but I
mean, it didn't really. I didn't notice no
changes besides my knee.
Q. Okay. Did it help your depression?
A. Well, I can't say that it helped it, and I
can't say it actually hurt it (Tran. p. 86)
Claimant was examined by R. Dallas Jones, Ph.D., a
psychologist at the University of Iowa on March 24, 1993.
Dr. Jones reported as follows,
Responses to the Minnesota Multiphasic
Personality Inventory (MMPI) were suggestive of an
unusually "defensive" response style. Individuals
with this response style deny even common human
faults, and usually portray themselves in an
Page 10
unusually positive light. As a result of this
finding, we asked Mr. Hanen to repeat the MMPI,
but he refused. With this response bias in mind,
the clinical scales of the MMPI were suggestive of
substantial somatic concern and distress. The
profile is associated with numerous physical
complaints that may be disproportionate to
objective findings.
In sum, the results of our assessment were
tempered by a probable "defensive" response bias.
However, the data suggest that Mr. Hanen is likely
to have numerous physical complaints that may be
difficult to isolate medically. We see no
evidence of significant depression or anxiety (Ex.
C, pp. 1 & 2).
Wherefore, based upon the foregoing evidence it is
determined that the injury to claimant's left knee which
occurred on December 10, 1990, was the cause of permanent
disability to claimant's left leg and that he has sustained
a 10 percent permanent impairment to the left leg and is
entitled to 22 weeks of permanent partial disability
benefits. Iowa Code section 85.34(2)(o).
Claimant sustained a traumatic injury to his left knee.
It was witnessed by a co-worker. He eventually sought
medical treatment. The left knee injury caused an
arthoscopic surgery and arthrotomy with a significant
reconstruction of the left knee anterior cruciate ligament.
Claimant testified that his left knee becomes numb if he
stands for a prolonged period of time (Tran. p. 82). He
further stated that if walks for a long period of time he
gets a shooting pain down the left side of his knee (Tan.
pp. 82 & 83). Claimant further testified that if he tries
to run it feels like his knee is going to pop out (Tran. p.
84). Claimant added that if he would put a sudden pressure
on his knee like jumping, it would feel like it was coming
to a breaking point (Tran. p. 84). Claimant related he has
to watch what he is doing if he tries to jog up or down
stairs (Tran. pp. 84 & 85). Claimant maintained that he
could not stand in one place for a long period of time
(Tran. p. 87). Claimant testified that he was never offered
to be rehired by employer after the injury (Tran. p. 81).
It is further determined that the injury of December
10, 1990 to the left knee was not the cause of any
significant aggravation of claimant's peptic ulcers or his
mental depression. Dr. Minks' testimony was rebutted by Dr.
Berg, Dr. Catalona, Dr. Jones and claimant himself.
Claimant did not relate any problems concerning his
ulcers or depression to Dr. Berg during the course of his
treatment for his left knee. Dr. Berg wrote in his letter
of March 22, 1993, that these other impairments that Dr.
Minks found (peptic ulcer and mental depression) were not
related to his two knee surgeries in Dr. Berg's opinion (Ex.
A, Dep. Ex. 4). Dr. Catalona unequivocally stated that he
found no indication that the injury to his knee was related
Page 11
to his peptic ulcer disease nor to his intermittent episodes
of depression (Ex. D., p. 2). Claimant was not examined or
treated for peptic ulcer disease or depression by any
medical practitioner subsequent to this injury which
occurred on December 10, 1990 (Tran. pp. 93-95). It is the
determination of this deputy that claimant's peptic ulcers
and mental depression are related to his lifestyle prior to
this injury and general state of health prior to this injury
rather than to the injury to his left knee which occurred on
December 10, 1990.
It is further determined that claimant sustained a
scheduled member injury to this left leg and he did not
sustain an injury to the body as a whole. Iowa Code section
85.34(2)(o) and (u).
RATE
It is determined that claimant's rate of compensation
is to be determined pursuant to the introductory paragraph
of Iowa Code section 85.36 and subparagraph 1 of Iowa Code
section 85.36. Those paragraphs read as follows,
85.36 Basis of computation.
The basis of compensation shall be the weekly
earnings of the injured employee at the time of
the injury. Weekly earnings means gross salary,
wages, or earnings of an employee to which such
employee would have been entitled had the employee
worked the customary hours for the full pay period
in which the employee was injured, as regularly
required by the employee's employer for the work
or employment for which the employee was employed,
computed or determined as follows and then rounded
to the nearest dollar:
1. In the case of an employee who is paid on a
weekly pay period basis, the weekly gross
earnings.
Claimant testified that he was told that he would be
paid $280 per week. He further testified that he would be
taking home $240 per week after withholding (Tran. p. 75).
Employer did not deny that he might have told claimant that
he would be earning $280 a week but the pay records show
that claimant was earning $260 a week (Tran. p. 202; Ex. G).
Employer testified that in his opinion claimant was earning
$260 per week and after a FICA deduction he was paid $240
per week (Tran. p. 188 & 189).
Employer testified that at the time claimant was hired
again on or about November 28, 1990, prior to this injury on
December 10, 1990, and that employer grossed up claimant's
compensation to $260 per week so that claimant would
continue to receive $240 per week after the FICA deduction.
Claimant's pay records for the year 1990 show that claimant
normally earned $240 per week prior to this last period of
employment, when he was hired to replace an individual who
was called to active duty in the military service for
Page 12
Operation Desert Storm.
Claimant's testimony that he was earning $280 per week
at the time of the injury is not supported by any other
evidence, whereas, employer's pay records support employer's
testimony that claimant was earning $260 per week and
received $240 per week in take home pay (Ex. F & G).
Therefore, it is determined that claimant was earning and
was paid on the basis of a gross weekly wage of $260 per
week and that he was paid on a "weekly pay period basis."
Iowa Code section 85.36(1) (Ex. F & G).
Claimant testified that his normal work week was four
days a week. He also testified that some employees worked
Friday until noon or so (Tran. p. 74). This testimony of
claimant was corroborated by employer who also testified
that claimant worked four days a week but that most
employees worked five days a week. Employer also testified
that there were employees who worked four days a week (Tran.
pp. 187 & 188). Thus, a four day work week was a normal
work week for claimant and a number of other employees of
employer.
Claimant testified that he worked off-and-on for
employer for approximately three or four years (Tran. p.
73). How much claimant worked for employer in 1989 and how
much he earned could not be determined from the evidence
(Tran. p. 95; Ex. G).
In 1990 claimant worked for employer for four weeks in
January and earned $240 per week. Claimant worked three
weeks for employer in April of 1990 and earned $75, $ $300,
and $280 per week respectively. Claimant worked every week
in May, June and July of 1990 and earned $240 per week (Ex.
G).
Both claimant and employer agreed that claimant worked
for employer on a full-time basis in May, June and July of
1990 (Tran. pp. 96, 173, & 174). Claimant only worked two
weeks in August of 1990 earning weekly amounts of $147 and
$60 respectively. He worked two weeks in September of 1990
earning $240 and $60 respectively. Claimant worked two
weeks in November of 1990 earning $78 and $240 respectively
(Ex. G).
A new contract of employment was agreed to by claimant
and employer on or about November 28, 1990. On or before
that date both claimant and employer agreed that claimant
would replace an employee who had been called to active duty
for military service for Operation Desert Storm. Claimant
testified,
Q. Okay. Well, what did you understand? Did
you understand you were part-time? Full-time?
What did you understand?
A. Well, when he put me in Van Buren County,
he told me someone in Bloomfield had got called
off to Desert Storm, and he said it could be six
months, it could be a year. He didn't know for
Page 13
sure how long I would be in Van Buren County
(Tran. p. 74).
There appears to be a meeting of the minds on this new
employment contract. Employer testified,
And the next time that he worked for us, I
guess, was when I told him that we had a guy going
to -- that had been called into active duty and
that while he was gone if he wanted to he could
work for him down in Van Buren County (Tran. p.
79).
After claimant agreed to work indefinitely to replace
the person who was called to active duty he was paid $260
per week on November 28, 1990, $260 a week on December 5,
1990 and $60 for the one day of work that he performed on
Monday, December 10, 1990, when he was injured (Ex. G).
Employer acknowledged that he did not know when the employee
called to active duty would be coming back (Tran. p. 189).
Employer admitted that claimant worked as a full-time
employee in May, June and July of 1990 and that employer
elected to show these earnings as W-2 earnings. Employer
also admitted that when claimant went to work on November
28, 1990, to replace the employee called to active duty that
employer again designated these earnings as W-2 earnings
which is the same method he used to handle the full-time
employee earnings of claimant in the months of May, June and
July of 1990 (Ex. E, F & G). Thus, there seems to be no
question that employer considered claimant to be a full-time
employee at the time of this injury based upon the way
employer chose to report his earnings at the time of this
injury.
Employer actually admitted that claimant was a
full-time employee at the time of this injury.
Q. Well, again you understood that he would work
indefinitely for this gentleman that was out of the country?
A. Until he returned.
Q. Until he returned. And you didn't know when he was
going to return?
A. That's right.
Q. And he remained a full-time employee until he hurt
his knee on December the 10th; is that correct?
A. For two weeks. (Tran. pp. 192-193).
The contention of the insurance carrier that, "Mr.
Hanen was not a full-time employee, he worked when work was
available and if he elected to ... When Mr. Hanen worked a
full week it was to replace another employee while that
employee was on vacation or sick" (Ex. 5-1) is not correct.
At the time of the injury claimant was not replacing an
employee who was on vacation or sick. He was replacing an
Page 14
employee who had been called to active duty indefinitely for
the duration of the military action or longer. Furthermore,
employer's pay records demonstrate that claimant normally
worked a full week most of the time and was paid on a weekly
pay period basis (Ex. G)
Employer's testimony that he paid claimant $60 a day is
immaterial for the reason that claimant was paid on a weekly
pay period basis (Tran. p. 196 & 210; Ex. G). Furthermore,
this is in conflict with his earlier testimony that claimant
was to be paid $260 a week (Tran. p. 188).
Moreover, employer's testimony that he normally paid
$60 a day irrespective of whether an employee worked two
hours or ten hours is refuted by claimant's pay record for
the week of April 4, 1990, when claimant was paid $75 for
that week and the week of November 2, 1990, when claimant
was paid $78 for that week (Ex. G). Employer testified that
it was he himself who prepared exhibit G (Tran. p. 172). He
added that this exhibit is the determining factor as to
whether claimant was working full-time or not (Tran. p. 173:
Ex. G) Exhibit G shows claimant was receiving W-2 wages
which was employer's criteria of whether claimant was
working full-time or not. For reasons of his own choosing,
at all other times employer designated and reported
claimant's earnings as 1099 earnings.
Further evidence of weekly pay is this testimony.
Q. So is it your testimony then, that his gross wages
was $260?
A. Yes. (Tran. p. 189.
Further evidence of weekly pay is that employer agreed
to gross up claimant's wages to $260 so that claimant would
receive $240 a week, he did the grossing up on a weekly
basis and not a daily basis (Tran. p. 201).
Thus it can been seen that sometimes claimant worked a
full week as a temporary employee, other times he worked
only part-time, and other times he worked full-time as a
regular employee.
Wherefore, from the foregoing evidence it is determined
that the weekly gross earnings to which the employee was
entitled on December 10, 1990 and "to which such employee
would have been entitled had the employee worked the
customary hours for the full pay period in which the
employee was injured, as regularly required by the
employee's employer for the work or employment for which the
employee was employed," are $260 per week. Iowa Code
section 85.36 introductory paragraph and subsection 1.
The rate of compensation cannot be computed under Iowa
Code section 85.36(6) or (7) for the reason that claimant
was not paid on a daily, hourly or output basis. The
evidence established that claimant was paid on a weekly
basis (Exs. F & G).
Page 15
The rate of compensation in this case cannot be
computed under Iowa Code section 85.36(10) because it was
not established that claimant earned, "... either no wages
or less than the usual weekly earnings of the regular
full-time adult laborer in the line of industry in which the
employee is injured in that locality, ..." Iowa Code section
85.36(10). There was no evidence that claimant earned less
than a regular full-time employee.
The evidence established that full-time employees
worked four or five days a week. The evidence established
that claimant worked four days a week and therefore he was a
full-time employee. The evidence further established that
claimant was paid a gross wage of $260 per week (Ex. F & G).
He was on a "weekly pay period basis." Iowa Code section
85.36(1).
The evidence established that irrespective of
claimant's earlier employment status, whether full-time or
part-time, whether he earned W-2 earnings or whether he
earned 1099 earnings, that claimant was nevertheless working
as a full-time employee, indefinitely, at the time of this
injury on December 10, 1990, to replace a person who had
been called to active duty in the military service for
Operation Desert Storm. There was no evidence to show when
the person called to active duty would return to work, if at
all.
Sometimes persons called to active duty for military
action are killed or found to be missing in action and never
return to their former employment. Sometimes they are
wounded and are unable to return to their former employment.
Sometimes they remain in the military service and make a
career of the military service. Sometimes, such persons
choose to follow other employment endeavors at the
conclusion of military service. Therefore, the employment
of claimant to indefinitely replace a person called to
active duty for military service in Operation Desert Storm,
which was an actual combat operation, is determined to be
indefinite full-time employment and that claimant was a
full-time employee at the time of this injury on December
10, 1990.
Following employer's own criteria that full-time
employees receive W-2 wages confirms that employer
considered claimant to be a full-time employee because he
was paying claimant W-2 wages at the time of the injury (Ex.
G).
Wherefore, it is determined that claimant was a
full-time employee of employer at the time of this injury
earning a gross weekly wage of $260 per week who was married
and was entitled to four exemptions. The parties stipulated
that claimant was married and was entitled to four
exemptions. According to the Guide to Iowa Workers'
Compensation Claims Handling for the injury date of December
10, 1990, the proper rate of compensation found on page 25
is $182.18 per week.
Page 16
PENALTY BENEFITS
Although in the past claimant may have occasionally
earned "less than the usual weekly earnings of the regular
full-time adult laborer in this line of industry in which
the employee is injured in that locality" Iowa Code section
85.36(10), normally claimant earned $240 per week whether
employer decided to designate him as a 1099 employee or a
W-2 employee (Ex. G). The few notable exceptions are the
week of April 4, 1990, when claimant earned $75 per week;
two weeks in August of 1990 when claimant earned $147 and
$60 per week respectively; one week in September of 1990
when claimant earned $60 per week and one week in November
of 1990 when claimant earned $78 per week.
The overriding consideration in this case is that at
the time of the injury on December 10, 1990, claimant was
working under a new agreement as a full-time employee to
replace another full-time employee who had been called into
the military service, and that claimant was paid weekly, and
that he was to continue to work and be paid on a full-time
basis into the indefinite future, for perhaps six months or
a year at least, or even longer.
In the opinion of this deputy there is no question that
claimant was a full-time employee on the date of the injury,
December 10, 1990. See the forgoing section on rate where
it is determined that employer clearly knew and designated
claimant as a full-time employee. In the opinion of this
deputy it was not fairly debatable that claimant was a
part-time employee at the time of this injury, nor was it
fairly debatable that claimant was not earning as much as
"the regular full-time adult laborer" in this industry in
this locality at the time of this injury. Iowa Code section
85.36(10). In May, June and July of 1990 employer
considered claimant to be a full-time employee and
designated his earnings as W-2 earnings claimant was paid
$240 per week. On November 28, 1990 and thereafter employer
admitted that he grossed up claimant's earnings so that he
would continue to receive $240 per week and employer again
designated that these earning were W-2 earnings which,
according to the employer's testimony was his criteria that
claimant was working as a full-time employee.
Claimant's attorney contends: "As such, the
determination of his weekly benefit amount was intentionally
calculated in such a way to provide him with the lowest
possible payment, and was based upon a known untruth. This
is precisely the situation in which the penalty provision
was intended to remedy and therefore should be imposed."
(Clm's. Trial Brief, p. 4). This contention is not without
merit.
Wherefore, it is determined that employer and insurance
carrier delayed the commencement of weekly workers'
compensation benefits at the proper rate of compensation
without reasonable or probable cause or excuse and that
claimant is entitled to penalty benefits in the amount of 50
percent of the amount of benefits that were unreasonably
denied. Iowa Code section 86.13(4).
Page 17
It is further determined (1) that it was not fairly
debatable that claimant was not a full-time employee and (2)
it was not fairly debatable that claimant was a part-time
employee under the evidence summarized above and following
the standard or criteria that employer used to pay part-time
and full-time employees.
Both employer and employee essentially testified that
claimant was employed to work full-time to replace a
full-time employee who had been called to active duty in the
military service indefinitely. Employer's wage records show
that he considered claimant to be a full-time employee with
a weekly wage of $260 per week which he designated as W-2
wages. Claimant was unjustly deprived of the workers'
compensation benefits at the proper rate of compensation and
therefor claimant is entitled to penalty benefits pursuant
to Iowa Code section 86.13(4).
Defendant paid claimant 26.714 weeks of workers'
compensation weekly benefits at the rate of $90.74 per week
for the period from February 6, 1991 to August 12, 1991.
Claimant should have been paid benefits at the rate of
$182.18 per week. Thus, claimant was delayed in the
commencement of $91.44 per week worth of weekly compensation
benefits for temporary disability without reasonable or
probable cause or excuse for a period of 26.714 weeks in the
total amount of $2,442.73. Claimant is entitled to a
penalty benefit of 50 percent of $2,442.73 in the amount of
$1,221.36. Iowa Code section 86.13(4); Dolan v. Aid
Insurance Co., 431 N.W.2d 790 (Iowa 1989); Dodd v. Oscar
Mayer Foods Corp., File No. 724378 (1989); Collins v. K Mart
Corp., File No. 921081 filed March 11, 1993.
Claimant is not entitled to penalty benefits for
defendants failure to pay permanent partial disability
benefits for the reason that there was a legitimate dispute
on the extent of impairment to claimant's left knee. Juste
v. HyGrade Food Products Corp., IV Iowa Industrial
Commissioner Reports, 190 (App. Dec. 1984). Even though
claimant's independent evaluator determined that claimant
had a 20 percent impairment of the left lower extremity, the
treating physician, Dr. Berg had found that claimant had
sustained no permanent impairment to his left knee or leg.
The opinion of Dr. Catalona, an independent evaluator for
defendants, that claimant had sustained a 5 percent
permanent impairment to his left leg did not occur until
shortly before the hearing and it was at odds with the
treating physician, Dr. Berg, who found no impairment.
Wherefore, it is determined that claimant is not entitled to
penalty benefits for defendants failure to commence payment
of permanent partial disability benefits.
INDEPENDENT MEDICAL EXAMINATION
The issue of whether claimant is entitled to an
independent medical examination was determined prior to this
hearing by another deputy industrial commissioner on
February 12, 1993. Defendants filed a motion to reconsider
this ruling on February 23, 1993 and requested time to
Page 18
prepare and file a resistance. A motion for reconsideration
of this nature is considered to be an application for
rehearing pursuant to Iowa Administrative Act 17A.16(2) and
rule 343 IAC 4.24. Defendants timely filed their motion
within the 20 days required by the statute and the rule.
Counsel correctly noticed the opposing party as required by
the statute and the rule. At the time of hearing
defendants' counsel complained that he had not received a
response to his motion.
Iowa Administrative Act 17A.16(2) provides, "Such an
application for rehearing shall be deemed to have been
denied unless the agency grants the application within
twenty days after its filing."
Rule 343 IAC 4.24 provides,
An application for rehearing shall be deemed
denied unless the deputy commissioner rendering
the decision grants the application within 20 days
after its filing. For purposes of this rule,
motions or requests for reconsideration or new
trial or retrial or any reexamination of any
decision, ruling, or order shall be treated the
same as an application for rehearing.
Therefore, counsel either knew or should have known
that his motion for reconsideration was deemed denied when
he received no response within 20 days of the motion and
defendants should have immediately paid the reasonable
expenses of the requested examination, including travel
expenses, as ordered by the previous deputy.
The statement of defendants' counsel in his brief,
"Respondent's Motion to Reconsider has not been ruled on and
is pending." is a misunderstanding of the law on the part of
defendants' counsel (Respondent's Brief Phase II, p. 19).
This deputy has no power or authority to overrule the
determination of another deputy.
Rather than pay for the examination as required by law
defendants continued to dispute that Dr. Berg was a
physician retained by the employer. Iowa Code section 85.39
unnumbered paragraph 2. However, Fairlie, admitted that the
insurance carrier paid for all of Dr. Berg's charges (Tran.
pp. 31 & 253). It has been settled agency law and precedent
for many years that with respect to Iowa Code section 85.39,
a physician chosen by the employee but adopted by employer's
insurance carrier, is considered to be an employer-retained
physician. Coble v. Metro Media, Inc., Thirty-fourth
Biennial Report of the Industrial Commissioner, 71 (1979).
Likewise, with respect to Iowa Code section 85.27, even
though the employer has the right to choose the care, when
the employer and insurance carrier acquiese in the care of
the physician chosen by claimant, then this physician is
considered to be an employer-retained physician. Munden v.
Iowa Steel & Wire, Thirty-third Biennial Report of the
Industrial Commissioner 99 (1977).
Page 19
Therefore, irrespective of whether claimant or
defendants chose Dr. Berg initially, he became the
employer-retained physician when defendants acquiesced in
his care by paying his charges.
Defendants either knew or should have known that they
were in violation of the order of the previous deputy to
immediately pay the reasonable expenses of the requested
examination including travel expenses after 20 days elapsed
subsequent to the filing of their motion. The motion was
filed February 23, 1993, the Motion was deemed denied 20
days later on March 15, 1993.
Claimant's counsel contended that he was unable to get
Dr. Minks to testify live at the hearing because he had not
been paid $800 for his independent medical examination and
claimant was unable to advance Dr. Minks $200 in cash prior
to hearing (Tran. pp. 37 & 38).
Wherefore, it is determined, as a matter of fact, that
claimant was entitled to an independent medical examination
by Dr. Minks and was entitled to be reimbursed for it
including the reasonable travel expenses to and from the
examination as of March 15, 1993.
CONCLUSIONS OF LAW
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
That claimant did not sustain the burden of proof by a
preponderance of the evidence that he is entitled to
additional temporary disability benefits for the period from
December 10, 1990, the date of the injury, until February 6,
1991, when defendants commenced temporary disability
benefits. Iowa Code section 85.33(1).
That claimant did not sustain the burden of proof by a
preponderance of the evidence that he sustained an injury to
the body as a whole or that the injury of December 10, 1990,
was the cause or aggravation or any increase or worsening of
his chronic preexisting peptic ulcer disease or his
preexisting chronic mental depression. Iowa Code section
85.34(2)(u). Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296
18 N.W.2d 607 (1945).
That claimant did sustain the burden of proof by a
preponderance of the evidence that the injury to his left
knee of December 10, 1990, was the cause of permanent
disability and that he sustained a 10 percent permanent
impairment of the left leg and is entitled to 22 weeks of
permanent partial disability benefits. Iowa Code section
85.34(s)(o); Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965);
Lindahl, 236 Iowa 296 18 N.W.2d 607 (1945)
That the proper rate of compensation is $182.18 per
week. Iowa Code section 85.36, introductory paragraph and
subsection 1; Guide to Iowa Workers' Compensation Claim
Handling, for the injury date of December 10, 1990, for a
Page 20
gross weekly wage of $260 per week for a married person with
four exemptions found on page 25.
That claimant is entitled to an additional $91.44 per
week of temporary disability healing period benefits for
26.714 weeks from February 6, 1991 to August 12, 1991, in
the amount of $2,442.73. Iowa Code section 85.36,
introductory paragraph and subsection paragraph 1; Iowa Code
section 85.33(1).
That claimant is entitled to penalty benefits of 50
percent of $2,442.73 in the total amount of $1,221.36. Iowa
Code section 85.13(4).
That the order of the previous industrial commissioner
to reimburse claimant for an independent medical examination
including travel expenses became effective on February 15,
1993, that defendants are delinquent in the payment of these
expenses. Iowa Administrative Procedure Act 17A.16(2) and
rule 343 IAC 4.24.
ORDER
THEREFORE, IT IS ORDERED:
That defendants pay to claimant twenty-six point seven
one four (26.714) weeks of additional temporary disability
healing period benefits in the amount of ninety-one and
44/100 dollars ($91.44) per week in the total amount of two
thousand four hundred forty-two and 73/100 dollars
($2,442.73) commencing on February 6, 1991.
That defendants pay to claimant twenty-two (22) weeks
of permanent partial disability benefits at the rate of one
hundred eighty-two and 18/100 dollars ($182.18) per week in
the total amount of four thousand seven and 96/100 dollars
($4,007.96) commencing at the end of healing period on
August 12, 1991. Iowa Code section 85.34(2)(s); Teel v.
McCord, 394 N.W.2d 405 (Iowa 1986).
That these benefits are to be paid in a lump sum.
That interest will accrue on the foregoing benefits
pursuant to Iowa Code section 85.30.
That defendants pay to claimant penalty benefits in the
amount of fifty percent (50%) of two thousand four hundred
forty-two and 73/100 dollars ($2,442.73) in the total amount
of one thousand two hundred twenty-one and 36/100 dollars
($1,221.36) in a lump sum. Interest on penalty benefits
will commence on the date of this decision. Iowa Code
section 86.13(4).
That defendants immediately obey the order of the
previous deputy and reimburse claimant $800 for the expense
of the independent medical examination and also pay the
travel expenses to and from the examination that became due
on February 15, 1993.
That the costs of this action, including the cost of
Page 21
the attendance of the court reporter at hearing and the cost
of the transcript, are charged to defendants pursuant to
rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40.
Claimant is not entitled to the cost for copies of
medical records in the amount of fifteen dollars ($15)
charged by Dr. Berg for the reason that medical records are
not one of the specified items of allowable costs enumerated
in rule 343 IAC 4.33. Furthermore, claimant has not
demonstrated that these costs have actually been paid. Rule
4.33 states, "Proof of payment of any cost shall be filed
with the industrial commissioner before it is taxed." The
deputy gave this caveat at the hearing (Tran. pp. 44 & 45).
The charge of Medical Records Copying in the amount of
fifty-seven and 07/100 dollars ($57.07) is also excluded for
the reason that medical records are not one of the items
enumerated in rule 4.33 and in addition the document
submitted by claimant shows that the balance is still due.
The cost of the service by the sheriff of Jefferson
County dated January 16, 1991, in the amount of twelve and
60/100 dollars ($12.60) cannot be related to this case in
which the original notice and petition was filed on May 13,
1992 (Ex. 9-4). It should be added that there is no
evidence as to what legal document was served or who that
document was served upon that incurred the twelve and 60/100
dollars ($12.60) expense. There is no proof of payment of
Page 22
this cost.
The cost in the amount of two and 29/100 ($2.29) for
the certified mail receipt dated January 12, 1993 to serve
the application for an independent medical examination on
defendants' counsel is allowed (Ex. 9-5). It is considered
an original notice and petition pursuant to subsection 3 of
rule 343 IAC 4.33 and it is an established fact that the
United States Postal Service requires a cash payment at the
time the document is mailed. The other receipt for
certified mail dated December 29, 1992, in the amount of two
and 29/100 dollars ($2.29) is not allowed for the reason
that it was an ineffective mailing because claimant's
attorney used the incorrect form to make an application for
the independent medical examination at that time (Ex. 9-5).
Defendants are ordered to file claim activity reports
as requested by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of January, 1994.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Edward F. Noyes
Attorney at Law
104 1/2 N. Main St.
Fairfield, IA 52566
Mr. John C. Stevens
Attorney at Law
122 East Second St.
P.O. Box 748
Muscatine, IA 52761
1802, 1803, 2502, 2901, 2903, 2906
3001, 3002, 3003, 4000.2
Filed January 28, 1994
Walter R. McManus
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RONNIE HANEN,
Claimant,
vs.
File No. 972610
STEVER'S CITY SANITATION,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
UNITED FIRE & CASUALTY CO.,
Insurance Carrier,
Defendants.
___________________________________________________________
2901, 2903, 2906
Both attorneys failed to file timely witness and
exhibits lists.
Late incurred medical expenses were not allowed in
evidence on an unfair surprise, prejudice standard but it
was commented that if claimant could show that the medical
treatment expenses were caused by this injury then
defendants would be obligated to pay them.
One of claimant's witnesses and three of defendants'
witnesses were not allowed to testify based on an unfair
surprise, prejudice standard. One of defendants' excluded
witnesses was allowed to give limited rebuttal evidence.
One of defendants' witnesses was allowed to make an offer of
proof out of the presence of the deputy.
Defendants were not allowed to assert the issue of
injury arising out of and in the course of employment after
defendants failed to designate injury as a hearing issue on
the prehearing conference report. This ruling was based on
the wording of the hearing assignment order and prejudicial
surprise. Defendants elected to assert injury seven days
prior to hearing.
1802
Claimant did not prove he was entitled healing period
benefits from the date of the injury until the date
defendants started paying healing period benefits because he
did not prove by any evidence (medical or nonmedical) that
he was unable to work during that period of time.
Page 2
1803
The injury was determined to be a scheduled member
injury to the knee. Impairment ratings were (1) zero, (2) 5
percent and (3) 20 percent. Claimant was determined to have
a 10 percent permanent impairment to the left knee and was
awarded 22 weeks of permanent partial disability benefits.
Claimant's independent evaluator indicated that the
injury was the cause of an aggravation of claimant's
preexisting peptic ulcer condition and mental depression
condition. Treating physician and defendants' independent
medical examiner said there was no evidence that either one
of these two conditions was caused by or aggravated by this
injury to the knee. Defendants' independent examining
psychologist said claimant did not suffer from mental
depression.
3001, 3002, 3003
In the past claimant had worked as a full-time regular
employee, as a temporary employee and a part-time employee.
When he was a full-time regular employee, employer
designated his earnings as W-2 earnings and deducted FICA.
When claimant was only working temporary or part-time,
employer designated claimant's earnings as 1099 earnings and
made no deductions of any kind.
Employer and insurance carrier contended claimant was a
part-time employee and that his rate should be calculated
under Iowa Code section 85.36(10) which resulted in a rate
of $90.74 per week.
Claimant contended he was a full-time employee and that
his rate should be calculated under Iowa Code section 85.36,
introductory paragraph and subparagraph 1, which resulted in
a rate of $182.18.
Employer's contention that claimant was paid on a daily
basis was not supported by any other evidence. On the
contrary, all of the evidence supported the fact that
claimant was paid on a weekly pay period basis.
Two weeks prior to this injury claimant and employer
agreed that claimant was rehired to take the place of a
full-time employee who had been called to active duty for
military duty in Operation Desert Storm for an indefinite
period of time. He was not replacing someone who was sick
or on vacation. Employer admitted that claimant was
full-time for two weeks and that employer designated his
earnings as W-2 earnings.
It was determined that claimant was a full-time
employee and that his rate should be determined under Iowa
Code section 85.36 introductory paragraph and subparagraph
1.
Claimant had been paid at the rate of $90.74 per week
using subsection 10. The rate he should have been paid was
Page 3
$182.18. Defendants were ordered to pay claimant an
additional $91.44 per week for the healing period of 26.714
weeks.
4000.2
It was determined that it was not fairly debatable (1)
that claimant was a full-time employee at the time of the
injury and (2) that it was not fairly debatable that
claimant was not a part-time employee at the time of the
injury. Claimant was awarded penalty benefits of 50 percent
of the $91.44 per week that was not commenced without
reasonable or probable cause or excuse.
2502
It was determined that the ruling of another deputy
prior to hearing granting an independent medical examination
pursuant to Iowa Code section 85.39 was controlling and that
the hearing deputy had no authority to rehear the issue.
Defendants contended that they had asked for a
rehearing of the previous ruling and did not have a response
to their application for a rehearing.
The hearing deputy determined that defendants' counsel
either knew or should have known that if defendants'
application was not granted after twenty (20) days then the
ruling of the previous deputy became final.
Claimant's attorney contended that their evaluator who
they had planned would testify at the hearing refused to
testify for the reason he had not been paid for the
independent medical examination and claimant could not come
up with the cash advance he required prior to appearing at
the hearing to testify.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MARY BUTRICK,
Claimant,
vs.
File No. 973009
FALLS LODGING d/b/a WOODS
MOTOR HOTEL and PAUL BERTELSON
A R B I T R A T I O N
Employer,
Non-Insured, D E C I S I O N
Defendant.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by the
claimant, Mary Butrick, against her employer, Falls Lodging
d/b/a Woods Motor Hotel and Paul Bertelson, personally, to
recover benefits under the Iowa Workers' Compensation Act,
as a result of an injury sustained on January 8, 1991. This
matter came on for hearing before the undersigned deputy
industrial commissioner in Fort Dodge, Iowa, on December 16,
1993. A first report of injury has not been filed. The
record consists of the testimony of claimant and of
claimant's exhibits 1 through 7.
ISSUES
Pursuant to the hearing report and the oral
stipulations of the parties at hearing, the parties agree
that claimant did receive an injury which arose out of and
in the course of her employment on January 1, 1991.
Issues remaining to be decided are:
(1) Claimant's appropriate weekly rate of
compensation;
(2) Whether claimant is entitled to healing period
benefits for the period from January 30, 1991 through April
30, 1991;
(3) Whether claimant is entitled to payment of medical
expenses; and
(4) Whether an employer-employee relationship existed
between claimant and Paul Bertelson, individually, at the
time of claimant's work injury.
FINDINGS OF FACT
The deputy, having heard the testimony and considered
the evidence, finds:
Claimant is a 52-year-old single woman who was entitled
to one exemption on January 8, 1991. Claimant was working
Page 2
as manager of the Woods Motor Hotel on January 8, 1991, when
she fell down approximately five or six stairs and landed on
her right side, hit a wall, and injured her right arm, right
shoulder and face.
Claimant initially sought treatment at Ellsworth
Hospital. Physical therapy and muscle relaxers were
prescribed. Claimant saw J. A. Brunhorst, M.D., for
conservative care through January 19, 1991. Dr. Brunhorst
subsequently referred claimant to David W. Beck, M.D., a
neurosurgeon, who opined on January 30, 1991, that
claimant's symptoms were consistent with a C7-T1 herniated
disc as well as ulnar nerve neuritis. Dr. Beck apparently
referred claimant to S. M. S. Hayreh, M.D., who admitted
claimant to St. Joseph Mercy Hospital on January 30, 1991
for treating and diagnostic testing.
While hospitalized, claimant underwent radiographic
studies. A chest x-ray was interpreted as normal; an MRI of
the cervical spine was interpreted as negative. Dr.
Hayreh's discharge diagnoses of February 2, 1991, were:
Musculoskeletal cervical pain with right extremity pain
secondary to a muscle sprain; possible right carpal tunnel
syndrome; and depressive neurosis.
Claimant last saw Dr. Hayreh on March 10, 1991. She
has seen no physician for her continuing complaints of
headaches, numbness in the right arm and difficulties with
grasping with the right hand since that date as claimant has
no health insurance and claimant's employer had no workers'
compensation insurance coverage on January 8, 1991.
Claimant had conversation with Paul Bertelson subsequent to
her injury. Mr. Bertelson instructed that he be sent
claimant's medical bills relative to the January 8, 1991
injury. Claimant has outstanding medical bills equalling
$5,516.45 related to her work-injury.
Between claimant's injury and the end of January 1993,
the ownership of Woods Motor Hotel changed. The new hotel
owners terminated claimant on or about February 1, 1991.
Claimant has never been released to return to work
subsequent to her St. Joseph Mercy hospitalization. On
approximately May 1, 1991, claimant began to look for other
work. Claimant stated that she did so because, while she
had not obtained a medical release to return to work, it was
financially impossible for her to continue without finding
work. Claimant did find work in July 1991. Claimant
currently works as a cook at the Fort Dodge Law Enforcement
Center.
Claimant's gross weekly wage, paid on a biweekly pay
period basis, was $900 per pay period or $450 per week.
Additionally, as hotel manager, claimant was required to
reside at the hotel. Claimant's motel room would have
rented to a guest for $28 per night or $196 per week. The
employer furnished the room to claimant without charge. The
value of the employer-provided room is appropriately
included in determining claimant's gross weekly wage. Hoth
v. Eilors, I Iowa Industrial Commissioner Report 156 (Appeal
Decn. 1980). On cross-examination, claimant acknowledged
Page 3
that the hotel was full every night only from April through
November. That fact is not relevant in determining the
overall value of provision of a room for claimant. What is
relevant is that claimant received lodging at her employer's
expense throughout her employment. Likewise, that
withholding taxes were not made on the value of the lodging
is insufficient to obviate inclusion of the value of the
lodging in claimant's gross weekly wage. Claimant's overall
gross weekly wage equals $646 ($450 + $196). Claimant, as a
single woman entitled to one exemption/has a weekly
compensation rate of $359.62.
Paul Bertelson signed claimant's paychecks although the
checks themselves were drawn on accounts for Falls Lodging
or other Bertelson corporations. Claimant's W2 tax
statement was issued from Falls Lodging Corporation and not
from Paul Bertelson individually. Paul Bertelson acted as
president of Falls Lodging. Mr. Bertelson performed in the
capacity of claimant's employer and can properly be
considered to have been the alter ego of Falls Lodging
Corporation. As president of Falls Lodging Corporation, Mr.
Bertelson had statutory duty to see to it that the
corporation had workers' compensation insurance for its
employees. See section 87.1. A corporate officer cannot
intentionally or negligently fail to provide the
corporation's employees with statutorily mandated workers'
compensation insurance coverage while in the corporation's
employ and then hide behind the corporate veil as a means of
avoiding personal liability for injuries the corporation's
employees sustain which injuries arose out of and in the
course of the employees employment by the corporation. See
Smith v. CRST Inc. and Lincoln Sales and Service, Arb.
Decn. 976632, filed November 15, 1993.
It is expressly found that the corporate veil between
Paul Bertelson as an officer of Falls Lodging Corporation
and Paul Bertelson individually is pierced. Mr. Bertelson
is expressly found to have been claimant's employer at the
time of her injury and is expressly found to be personally
liable as her non-insured employer at the time of the
work-injury.
CONCLUSIONS OF LAW
We first consider the weekly rate issue.
The basis of compensation shall be the weekly earnings
of the injured employee at the time of the injury. Weekly
earnings means gross salary, wages, or earnings of an
employee to which such employee would have been entitled had
the employee worked the customary hours for the full pay
period in which the employee was injured, as regularly
required by the employee's employer for the work or
employment for which the employee was employed, computed or
determined as follows and then rounded to the nearest
dollar: ... In the case of an employee who is paid on a
biweekly pay period basis, one-half of the biweekly gross
earnings. Section 85.36.
The value of an employer-provided room is appropriately
Page 4
considered in determining gross weekly earnings. Hoth,
supra.
Claimant has established a weekly rate of $359.62 for
compensation purposes.
We consider the questions related to claimant's claimed
entitlement to healing period from January 30, 1991 through
April 30, 1991. That question of necessity requires
consideration of the issue of whether claimant's incapacity
through that period related to her work injury.
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).
Section 85.34(1) provides that healing period benefits
are payable to an injured worker who has suffered permanent
partial disability until (1) the worker has returned to
work; (2) the worker is medically capable of returning to
substantially similar employment; or (3) the worker has
achieved maximum medical recovery. The healing period can
be considered the period during which there is a reasonable
expectation of improvement of the disabling condition. See
Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa
Ct. App. 1981). Healing period benefits can be interrupted
or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa
1986).
Section 85.33(1) provides that the employer pay an
employee for injury producing temporary total disability
weekly compensation benefits until the employee has returned
to work or is medically capable of returning to employment
substantially similar to the employment in which the
employee was engaged at the time of the injury, whichever
occurs first.
All doctors who treated claimant for her neck, right
shoulder and right upper extremity complaints after January
8, 1991 and through March 1991 by history related claimant's
Page 5
complaints and conditions to her fall at work on January 8,
1991. Defendants presented no evidence demonstrating that
this was an inappropriate inference on the doctors' parts.
Claimant has established a causal relation between her
condition and her period of disability from January 30, 1991
through April 30, 1991.
Although no doctor released claimant to work on or
before April 30, 1991, claimant, in her testimony, related
that she began to seek employment on or about May 1, 1991.
Claimant's resumption of active attempts to find work may
appropriately be construed as evidence of the claimant's
being physically capable of returning to work. Claimant is
entitled to an award of weekly workers' compensation
benefits from January 30, 1991 through April 30, 1991.
Whether this payment of benefits is properly characterized
as temporary total disability benefits or healing period
benefits cannot be ascertained at this time. No medical
evidence in this record indicates that claimant's condition
has resolved to the point where whether claimant will be
entitled to permanent partial disability benefits in the
future can be ascertained.
We next consider claimant's entitlement to medical
benefits under section 85.27.
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Section 85.27. Holbert v.
Townsend Engineering Co., Thirty-second Biennial Report of
the Industrial Commissioner 78 (Review-reopen 1975).
The medical care which claimant received from January
8, 1991 through March 1991 clearly related to claimant's
January 8, 1991 work injury. Claimant is entitled to
payment of $5,516.45 for medical services provided as set
forth in exhibit 1. Additionally, claimant is found to have
continuing symptoms relative to her work-related conditions.
Claimant is entitled to appropriate medical care at her
non-insured employer's expense for treatment of work-related
conditions and symptoms.
We reach the question of whether an employer-employee
relationship existed between claimant and Paul Bertelson,
individually, on January 1, 1991.
For reasons set forth in the above findings of fact, it
is expressly concluded that claimant has established that
claimant was an employee of Paul Bertelson, individually, on
January 8, 1991.
ORDER
THEREFORE, IT IS ORDERED:
Page 6
Defendants pay claimant benefits for a period of
temporary total disability from January 30, 1991 through
April 30, 1991 at the rate of three hundred fifty-nine and
62/100 dollars ($359.62).
Defendants pay claimant for costs of medical treatment
in the amount of five thousand five hundred sixteen and
45/100 dollars ($5,516.45).
Defendants provide claimant with appropriate medical
care for her continuing symptoms relative to her
work-related condition.
Defendants pay costs of this action.
Defendants file claim activity reports as the agency
orders.
Signed and filed this ____ day of January, 1994.
______________________________
HELENJEAN M. WALLESER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. William G. Enke
Attorney at Law
Suite 340, Norwest Center
P.O. Box 1826
Fort Dodge, IA 50501
Mr. Mark S. Brownlee
Attorney at Law
P.O. Box 957
Fort Dodge, IA 50501
2003; 3100
Filed January 13, 1994
Helenjean M. Walleser
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MARY BUTRICK,
Claimant,
vs.
File No. 973009
FALLS LODGING d/b/a WOODS
MOTOR HOTEL and PAUL BERTELSON
A R B I T R A T I O N
Employer,
Non-Insured, D E C I S I O N
Defendant.
___________________________________________________________
2003
Corporate veil pierced to find president and chief
officer to be the alter ego of the corporation and therefore
personally liable as claimant's employer. Held it would be
inconsistent to permit an individual, in the individual's
corporate officer capacity, to fail to provide statutorily
required workers' compensation coverage then be able to hide
behind the corporate veil and maintain an absence of
personal liability as regards payment of appropriate
workers' compensation benefits to corporate employees who
received work-related injuries.
3100
Hotel manager was required to live in motel as part of job
duties. Rental value of room included in calculation of
gross weekly earnings.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
DAN R. SKIPTON,
Claimant,
vs.
File No. 973054
HON INDUSTRIES - GENEVA,
A P P E A L
Employer,
D E C I S I O N
and
THE TRAVELERS,
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
November 25, 1992 is affirmed and is adopted as the final agency
action in this case.
That claimant and defendants shall share equally the costs of the
appeal including transcription of the hearing. Defendants shall
pay all other costs.
Signed and filed this ____ day of November, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Michael J. Motto
Attorney at Law
1000 Firstar Center
201 W. Second St.
Davenport, Iowa 52801
Ms. Vicki L. Seeck
Attorney at Law
600 Union Arcade Bldg.
111 E. Third St.
Davenport, Iowa 52801
5-1803
Filed November 17, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DAN R. SKIPTON,
Claimant,
vs.
File No. 973054
HON INDUSTRIES - GENEVA,
A P P E A L
Employer,
D E C I S I O N
and
THE TRAVELERS,
Insurance Carrier,
Defendants.
____________________________________________________________
5-1803
Non-precedential, extent of disability case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DAN R. SKIPTON, :
:
Claimant, :
:
vs. :
: File No. 973054
HON INDUSTRIES - GENEVA, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
THE TRAVELERS, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Dan R.
Skipton, claimant, against Hon Industries-Geneva, employer,
hereinafter referred to as Hon, and The Travelers, insurance
carrier, defendants, for workers' compensation benefits as a
result of an alleged injury on March 1, 1989. On September
17, 1992 a hearing was held on claimant's petition and the
matter was considered fully submitted at the close of this
hearing.
The parties have submitted a prehearing report of
contested issues and stipulations which was approved and
accepted as a part of the record of this case at the time of
hearing. The oral testimony and written exhibits received
during the hearing are set forth in the hearing transcript.
According to the prehearing report, the parties have
stipulated to the following matters:
1. On March 1, 1989, claimant received an injury
arising out of and in the course of his employment with Hon.
2. Claimant is seeking temporary total or healing
period benefits only from March 26, 1990 through June 24,
1990 and defendants agree that he was not working at this
time.
3. If the injury is found to have caused permanent
disability, the type of disability is an industrial disabil
ity to the body as a whole.
4. If permanent partial disability benefits are
awarded, they shall begin as of June 25, 1990.
5. At the time of injury claimant's gross rate of
weekly compensation was $539.60; he was married; and he was
Page 2
entitled to five exemptions. Therefore, claimant's weekly
rate of compensation is $344.00 according to the Industrial
Commissioner's published rate booklet for this injury. The
parties incorrectly believed at hearing that the correct
rate was $344.55
6. All requested medical benefits have been or will be
paid by defendants.
ISSUES
The only issue submitted by the parties for determina
tion in this proceeding is the extent of claimant's entitle
ment to disability benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
A credibility finding is necessary to this decision as
defendants placed claimant's credibility at issue during
cross-examination as to the nature and extent of the injury
and disability. From his demeanor while testifying,
claimant is found credible.
Claimant has worked for Hon since the spring of 1972
and continues to do so at this time. Hon is a manufacturer
of office furniture. His duties over the years varied from
time to time but all involved the operation of machines in
the assembly of chairs, mostly in the wood fabrication
department. In January 1986, claimant received a promotion
from his position as assembler to the position of utility at
a higher rate of pay. At the time of the injury, claimant
was assigned primarily to operating a punch press machine
but as a utility he was occasionally moved to other machines
as needed such as the RF machine, band saw, shaper and T-
nutter.
It is found that the punch press job at the time of the
alleged injury subjected claimant to repetitious physical
and continuous stress to his left shoulder, upper back,
mid-back, lower back and left hip and leg. This job
required claimant to repetitively bend over and pick up a
stack of pre-cut wood seats from a pallet, flip over the
wood, and place the wood seats individually into the press
using his hands, arms, shoulders, back and legs to overcome
the force of very tight springs in the press used as a
guide. After the holes were made in the press, claimant
removed the wooden seat and placed it on a stack. He then
bent over and placed the stacks on an adjacent pallet.
Claimant processed 700-1300 pieces of wood over 8-10 hours
each work day, five days per week with frequent overtime on
Saturdays. Stacks of wooden seats weighed up to 60 pounds
each. Claimant had the reputation at Hon prior to the
injury as a hard worker and routinely exceeded production
standards.
On or about March 1, 1989, claimant's hard work injured
Page 3
his left shoulder, his upper, mid and lower back, and his
left hip and leg while working on the punch press machine at
Hon. The injury date is the one chosen by the parties for
this injury. This was a cumulative trauma injury and an
overuse syndrome from the continuous repetitive use of
hands, arms, left shoulder, back, left hip and leg.
Claimant began to experience serious difficulties with
chronic pain in the shoulder and upper back in March 1989.
Claimant's supervisor was aware of these problems at the
time they occurred.
The findings as to the nature and extent of the injury
herein is based upon the findings of two specialists:
Robert J. Chesser, M.D., a specialist in physical medicine,
and W. J. Robb, M.D., an orthopedic surgeon. Dr. Chesser
was a treating physician. Also, the views of a treating
chiropractor, M. R. Mally, D.C., was given weight as he was
very familiar with claimant's complaints from a clinical
perspective. All of these physicians were much more con
vincing than the other physicians such as: J. R. Lee, M.D.,
specialty unknown; D. V. Gierlus, D.O., the company doctor;
Charles T. Cassel, M.D., an orthopedic surgeon; Jeffrey A.
Shay, D.C., an evaluating chiropractor; and various staff
members of the Industrial Injury Clinic in Neenah,
Wisconsin. Dr. Lee was a one time evaluator possessing
unknown qualifications who offered little to explain
claimant's problems and whose only suggestion was to discon
tinue chiropractic care. Dr. Gierlus only briefly treated
claimant and his opinions on causation and extent of injury
are not clearly expressed in the record other than that
claimant should not be taken off work as a treatment modal
ity. Dr. Chesser felt that claimant had muscle strain of
unknown etiology but failed to explain why he ignored a
clear history of a gradual onset while performing work
duties. It was unknown whether Dr. Chesser was confused
about contributory causation or the physiological processes
involved. Dr. Shay was a one-time evaluator who appeared to
be unfamiliar with claimant's condition to render a credible
opinion.
The report from the staff at the Neenah Clinic was not
in the least bit persuasive. According to the report, the
staff found that claimant suffered from no medical problem
or physical impairment whatsoever. Who exactly was the
"staff" was not set forth. The only reported examinations
were by a physician of unknown background, a psychiatrist, a
psychologist and a vocational consultant. The reporting of
these examinations only reiterated claimant's history.
There was no attempted explanation why the views of almost
every physician in this case was rejected or why a psychia
trist or psychologist is more qualified than an specialist
in physical medicine or orthopedics in the diagnosis and
treatment of musculoskeletal conditions. The credibility of
such report was highly suspect.
As a result of the injury of March 1, 1989, claimant
was absent from his job at Hon for the period of time stipu
lated in the prehearing report upon the advice of his treat
ing chiropractor. The company physician disagreed with
claimant's absence from work but Hon authorized this chiro
Page 4
practic care. It is found that claimant was temporarily
totally disabled during this period of treatment based upon
the views of the treating medical provider who is apparently
duly licensed to practice in this state.
As a result of the injury of March 1, 1989, claimant
has suffered a significant permanent partial physical
impairment to the body as a whole. The exact percentage is
unimportant to this decision as this is an industrial case.
The finding of permanency is made with reference only to
claimant's low back problems. According to the recent medi
cal reports, claimant's upper back and shoulder problems
responded to treatment and he has not suffered permanent
shoulder or upper back problems. The impairment ratings
from the most credible physicians in the record are based
upon the low back, hip and leg problems. What is most
important to this decision is that claimant is now perma
nently restricted from work involving repetitive bending or
twisting and lifting over 30 pounds. These work limitation
findings are based upon the views of the physiatrist, Dr.
Chesser, whose specialty is the most appropriate for measur
ing physical capacities. Again, the views of Dr. Chesser
and Dr. Robb were given the most weight as they were the
most credible for the reasons given above and for the addi
tional reason that they are consistent with claimant's ver
sion of his medical history and current condition which is
found credible.
With reference to loss of earning capacity, it is found
that claimant's medical condition before the work injury was
excellent. Although he had chiropractic treatments prior to
March 1989, he had no ascertainable impairments or disabili
ties prior to March 1989. Claimant was able to fully per
form physical tasks involving heavy lifting; repetitive
lifting, bending, twisting and stooping and now is unable to
do so. Although claimant today has physical limitations, he
is still performing the job of punch press at Hon. However,
this is only due to ergonomic modifications of the job to
reduce the repetitive stressors. Despite these modifica
tions, claimant continues on occasion to suffer symptoms.
Clearly, the record shows that claimant's work has been
affected. Prior to the work injury, claimant routinely
received "above standard" performance appraisals from his
supervisor. Since the injury, claimant has primarily been
rated as "standard" because he is processing fewer seats per
hour than before.
It is found that claimant has suffered an actual loss
of earnings due to the work injury. After his return to
work in June 1989, claimant asked for and received a down
grade to assembly from his higher paying utility job. This
resulted in a reduction in pay of $1.24 per hour. Claimant
stated that he asked for this downgrade due to his back
problems. Apparently, even though the punch press job was
changed to allow him to continue on the job with his
restrictions, he was worried about being assigned to another
machine as a utility that he may not be able to physicallly
handle. Hon management contends that they did not know why
claimant asked for the downgrade and that they did not
Page 5
require him to do so in order to continue working. Whether
or not Hon knew why he asked for a downgrade, it was reason
able for claimant to conclude that he may not be able to
handle the other utility jobs. Also, it is clear from
claimant's testimony that he was concerned about his future
at Hon when his productivity decreased. Although Hon man
agers testified at hearing that claimant's fears were
unfounded, they did little or nothing to inquire into
claimant's motives for the downgrade or to alleviate his job
security fears.
Claimant is 40 years of age. He dropped out of high
school in his senior year but he has completed his GED.
Claimant's past employment consists solely of work in a
packing house for a short time and work at Hon. Claimant
has very limited potential for vocational rehabilitation.
Claimant has considerable motivation to remain employed.
From examination of all of the factors of industrial
disability, it is found that the work injury of March 1,
1989 was a cause of a 10 percent loss of earning capacity.
This finding is based largely on claimant's continuation of
employment at Hon.
CONCLUSIONS OF LAW
I. It is not necessary that claimant prove his dis
ability results from a sudden unexpected traumatic event.
It is sufficient to show that the disability developed grad
ually or progressively from work activity over a period of
time. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368
(Iowa 1985). The McKeever Court also held that the date of
injury in gradual injury cases is the time when pain pre
vents the employee from continuing to work. In McKeever the
injury date coincided with the time claimant was finally
compelled to give up his job. This date was then used by
the Court to determine rate and the timeliness of claimant's
claim under Iowa Code section 85.26 and notice under Iowa
Code section 85.23.
A disability may be either temporary or permanent. In
the case of a claim for temporary disability, the claimant
must establish that the work injury was a cause of absence
from work and lost earnings during a period of recovery from
the injury. Generally, a claim of permanent disability
invokes an initial determination of whether the work injury
was a cause of permanent physical impairment or permanent
limitation in work activity. However, in some instances,
such as a job transfer caused by a work injury, permanent
disability benefits can be awarded without a showing of a
causal connection to a physical change of condition. Black
smith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
The question of causal connection is essentially within
the domain of expert medical opinion. Bradshaw v. Iowa
Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
The opinion of experts need not be couched in definite, pos
itive or unequivocal language and the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).
Page 6
The weight to be given to such an opinion is for the finder
of fact to determine from the completeness of the premise
given the expert or other surrounding circumstances. Bodish
v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
As the claimant has shown that the work injury was a
cause a permanent physical impairment or limitation upon
activity involving the body as a whole, the degree of perma
nent disability must be measured pursuant to Iowa Code sec
tion 85.34(2)(u). However, unlike scheduled member disabil
ities, the degree of disability under this provision is not
measured solely by the extent of a functional impairment or
loss of use of a body member. A disability to the body as a
whole or an "industrial disability" is a loss of earning
capacity resulting from the work injury. Diederich v.
Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899
(1935). A physical impairment or restriction on work
activity may or may not result in such a loss of earning
capacity. Examination of several factors determines the
extent to which a work injury and a resulting medical
condition caused an industrial disability. These factors
include the employee's medical condition prior to the
injury, immediately after the injury and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. See Peterson v. Truck Haven
Cafe, Inc., (Appeal Decision, February 28, 1985).
A showing that claimant had no loss or only a small
loss of actual earnings does not preclude a find of indus
trial disability. See Michael v. Harrison County, 34 Bien
Rep., Ia Ind. Comm'r 218, 220 (App. Dec. 1979). Bearce v.
FMC Corp., 465 N.W.2d 531 (Iowa 1991) only held that contin
ued employment with no loss of earnings is significant evi
dence that should not be overlooked in measuring loss of
earning capacity.
In the case sub judice, it was found that claimant suf
fered a 10 percent loss of his earning capacity as a result
of the work injury. Such a finding entitles claimant to 50
weeks of permanent partial disability benefits as a matter
of law under Iowa Code section 85.34(2)(u) which is 10 per
cent of 500 weeks, the maximum allowable number of weeks for
an injury to the body as a whole in that subsection.
Claimant's entitlement to permanent partial disability
also entitles him to weekly benefits for healing period
under Iowa Code section 85.34 from the date of injury until
claimant returns to work; until claimant is medically capa
ble of returning to substantially similar work to the work
he was performing at the time of injury; or, until it is
Page 7
indicated that significant improvement from the injury is
not anticipated, whichever occurs first. In the case at
bar, it was found that claimant was totally disabled during
treatment for the time stipulated in the prehearing report.
Healing period benefits will be awarded accordingly.
ORDER
1. Defendants shall pay to claimant fifty (50) weeks
of permanent partial disability benefits at a rate of three
hundred forty-four and no/l00 dollars ($344.00) per week
from June 25, 1990.
2. Defendants shall pay to claimant healing period
benefits from March 26, 1990 through June 24, 1990, at the
rate of three hundred forty-four and no/l00 dollars
($344.00) per week.
3. Defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against this award for all
benefits previously paid.
4. Defendants shall pay interest on unpaid weekly ben
efits awarded herein as set forth in Iowa Code section
85.30.
5. Defendants shall pay the costs of this action pur
suant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
6. Defendants shall file activity reports on the pay
ment of this award as requested by this agency pursuant to
rule 343 IAC 3.1.
Signed and filed this ____ day of November, 1992.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Michael J. Motto
Attorney at Law
1000 First Bank Center
Davenport, Iowa 52801
Ms. Vicki L. Seeck
Attorney at Law
600 Union Arcade Building
111 East Third Street
Davenport, Iowa 52801
5-1803
Filed November 25, 1992
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DAN R. SKIPTON,
Claimant,
vs.
File No. 973054
HON INDUSTRIES - GENEVA,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
THE TRAVELERS,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803
Non-precedential, extent of disability case.