974416

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
SANDRA BRYAN,

Claimant, File No. 974416

vs. A P P E A L

FARMLAND FOODS, INC., D E C I S I O N

Employer,
Self-Insured,
Defendant.
____________________________________________________________

The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal. The decision of the deputy
filed April 11, 1994 is affirmed and is adopted as the final
agency action in this case.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of August, 1994.

________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER

Copies To:

Mr. Stephen M. Engelhardt
Attorney at Law
P.O. Box 217
Denison, Iowa 51442

Ms. Judith Ann Higgs
Attorney at Law
P.O. Box 3086
Sioux City, Iowa 51102-3086

5-1402.40
Filed August 11, 1994
Byron K. Orton

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
SANDRA BRYAN,

Claimant, File No. 974416

vs. A P P E A L

FARMLAND FOODS, INC., D E C I S I O N

Employer,
Self-Insured,
Defendant.
____________________________________________________________
5-1402.40

Claimant failed to prove a condition of disability was
causally related to work injury.

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
SANDRA BRYAN, :
:
Claimant, : File Nos. 974416
:
vs. A R B I T R A T I O N
:
FARMLAND FOODS, INC., D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
STATEMENT OF THE CASE

This is a contested case proceeding upon the petition
in arbitration of claimant Sandra Bryan against her
self-insured employer, Farmland Foods, Inc. Ms. Bryan
sustained an injury when she was struck in the left thigh by
a falling cutting board on January 21, 1991. She now seeks
benefits under the Iowa Workers' Compensation Act.

A hearing was accordingly held in Sioux City, Iowa on
January 24, 1994. The record consists of joint exhibits
1-50, defendant's exhibit A, claimant's exhibits 51 and 52
and the testimony of claimant, Jerry Bryan, Steve Kimpson,
Nancy Wiese and Becky Jacobsen.

ISSUES

The parties have stipulated to the following:

1. Claimant sustained injury arising out of
and in the course of employment on January
21, 1991;

2. The proper rate of compensation is
$278.79;

3. Although defendant disputes whether
medical treatment was reasonable and
necessary, the medical providers of disputed
treatment would testify as to the
reasonableness of fees and treatment and
defendant offered no contrary evidence.

Issues presented for resolution include:

1. Whether the subject work injury caused
either temporary or permanent disability;

2. The extent of entitlement to temporary
total or healing period (on or after
November 5, 1991);

Page 2

3. The nature and extent of permanent
disability, if any;

4. Entitlement to medical benefits
including whether they are causally
connected to the work injury and whether
they are authorized by defendant; and,

5. Whether defendant is entitled to credit
for sick pay benefits totalling $4,563.72
under Iowa Code section 85.38(2).

FINDINGS OF FACT

Sandra Bryan, 36 years of age at hearing, is a 1975
high school graduate without further education. Ms. Bryan
worked as a waitress from 1974 until 1987, then accepted
work with Farmland Foods, Inc., a meat packing operation.
Claimant worked a number of jobs, including meat cutting,
preparation of boxes and packing.

The stipulated work injury apparently occurred on
January 24, 1991, based on contemporaneous nurses' notes
incorporated in exhibit 36, but not otherwise identified as
to source. The note for January 25, 1991 reflects that
claimant was struck by a falling cutting board "yesterday
morning", resulting in lower back and knee soreness.

The first physician to see claimant for this problem
was D. W. Crabb, M.D., a family practitioner who testified
by deposition on June 3, 1993. Dr. Crabb's chart notes of
January 28, 1991 reflect that claimant injured her left leg
and expressed complaints of hip and knee pain. By January
31, Dr. Crabb charted that claimant's sacroiliac area was
still "pretty sore."

In the meantime, claimant had been undergoing regular
physical therapy sessions since at least December 1990 for
shoulder, mid scapular and cervical problems. Physical
therapy progress notes of January 25 prepared by Cindy
Stessman, PT, reflect that claimant was seen for cervical
and both shoulder areas. No mention of lumbar discomfort
appears. On January 28, Ms. Stessman again treated claimant
for cervical and shoulder problem, reporting that claimant
had sustained injury to the left knee and hip "today" and
was favoring the left hip and knee. No mention of back pain
was made. Ms. Stessman also made no mention of lumbar
problems in physical therapy progress notes of January 29,
January 30 and January 31, 1991.

Dr. Crabb saw claimant again on March 12, when
complaints were made of some tingling and irritation in the
leg, although no mention of lumbar problems appears. On
October 1, claimant was seen for a possible urinary tract
infection, but made no complaint of lumbar pain worth
charting.

On November 5, 1991, claimant was seen again with
complaints of left hip, leg and back pain. Dr. Crabb took

Page 3

her off work (she has never returned) and referred her for
consultation to Dr. Rassekh, who recommended a return to
work with restrictions. Claimant did not wish to return to
Dr. Rassekh because, she reports, he appeared overly eager
to perform surgery.

On December 3, 1991, claimant was seen by a
neurosurgeon, John L. Fox, M.D., who carried out a myelogram
and post-myelogram CT scan of the lumbar spine. Dr. Fox
reported the studies were normal and he was at a loss to
explain the cause of her present problem. His diagnosis was
"psychophysiologic musculoskeletal reaction," a diagnosis
heretofore unfamiliar to this writer, but which presumably
is a polite way of suggesting psychological overlay of some
kind. Dr. Fox saw no reason why claimant could not return
to work and did not suggest a return appointment since she
did not require any neurological surgical care.

In the meantime, claimant continued treating with Dr.
Crabb (primarily anti-inflammatory medications and physical
therapy) and, at her own initiative, with a chiropractor,
Steve Oatman, D.C. Dr. Crabb has repeatedly suggested
steroid injections, but claimant has rejected this advice.

Dr. Crabb finds claimant to be severely disabled and
ascribes causation to the January 1991 work injury. Absent
objective signs, he believes claimant has sustained a soft
tissue injury to the back, probably from jerking away in an
attempt to avoid the falling cutting board. He has rated
impairment at 46 percent of the leg, equating to 18 percent
impairment of the whole person, which he rounds to 20
percent of the body as a whole.

Dr. Oatman concludes that claimant has a bulging disc,
which he attributes to the subject work injury.

Claimant has also been evaluated by Lawrence Donovan,
D.O., a board certified orthopedic surgeon. Dr. Donovan,
who evaluated claimant on December 20, 1993, authored a
report of the same date and testified by deposition on
January 4, 1994.

Dr. Donovan was unable to find objective signs of
injury, and developed an impression of symptom magnification
syndrome. Not only did claimant fail to demonstrate
objective signs of injury, but testing revealed
unreproducible and nonphysiologic responses.

Dr. Donovan gave detailed testimony concerning various
parts of the so called "Wadell test," developed by a Dr.
Wadell to identify nonanatomical symptoms: those which can
be attributable to either hysterical complaints or actual
malingering. He found that claimant tested positive on
seven parts and equivocal on one part of the eight part
test. For example, claimant's sensation was increased,
rather than decreased as is typical in cases of herniated
disc or lumbar radiculopathy. And, she demonstrated a
"stocking-glove" distribution (distribution over the entire
leg, as if one wore a stocking). Such a distribution of
neurological symptoms is most abnormal, and when present,

Page 4

typically due to a massive disc lesion effecting several
levels. Radiographic testing has established that claimant
has no such multi-level disc problem. Straight leg raising
was inconsistent in the sitting and supine positions,
whereas a positive response in one position is normally
associated with a positive response in any position.
Dorsiflexion of the ankle should make pain worse, but did
not in claimant's case. Limitation in range of motion of
the lumbar spine was inconsistent and nonreproducible.
Claimant's limp was questionably reproducible. Claimant
demonstrated equivocal "cog-wheel" weakness (normally,
muscular resistance to increasing pressure falls away at a
smooth rate, not in an abrupt "giving way"). Claimant had
positive response to torso rotation and cervical spine
compression, maneuvers that Dr. Donovan says "anatomically
cannot cause pain or cannot cause enough force to cause
significant discomfort or pain in the lumbar spine."

It is noted that claimant gave a greatly exaggerated
history to Dr. Donovan of immediate onset of low back pain
and numbness. If claimant had reported such dramatic
symptoms to Dr. Crabb or her physical therapist, there can
be little doubt but that they would have charted.

CONCLUSIONS OF LAW

The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. App. P. 14(f).

The claimant has the burden of proving by a
preponderance of the evidence that the 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).

The record shows that claimant sustained a bruise
injury to her leg in January 1991, with brief complaints of
back pain, but not the immediate onset of pain and numbness
reported to Dr. Donovan. Thereafter, she bid into a
different job, but also a strenuous job, which entailed
carrying 75-90 pounds of scrap meat in boxes to a scale.

Page 5

She was able to do this until at least November 1991, some
ten months after the initial soft tissue injury to her leg.
Only then did Dr. Crabb take her off work, and in the
absence of significant objective signs of injury.

In agency experience, a "hard tissue" injury to the
back can often be manifested at a substantial delay from
initial injury, such as where a herniated disc suddenly
shifts and pinches a nerve weeks or even months after an
initial herniation. On the other hand, this pattern is not
so typical of "soft tissue" injuries, such as Dr. Crabb
believes claimant suffers. Dr. Oatman incorrectly
attributes her problems to a bulging disc, whereas multiple
CAT scans show otherwise. With all due respect to the
opinion of Dr. Crabb, his qualifications for diagnosis in
this area do not match up well with the two specialists,
neurosurgeon Dr. Fox and board certified orthopedic surgeon
Dr. Donovan. Those two doctors, whose views are accepted as
having the greater weight here, do not find permanent
impairment or need for physical restrictions.

Pain that is not substantiated by clinical findings is
not a substitute for impairment. Waller v. Chamberlain
Mfg., II Iowa Industrial Commissioner Report 419 (1989).

It is also noted that claimant has conducted herself
with this litigation very definitely in mind. From November
1991 until December 1993, she made no applications for
employment whatsoever, except for asking her present
attorney for a job. In December 1993, a bare month before
trial, claimant applied for several jobs. It is an
inescapable inference that she was motivated to do so by the
looming trial date.

Given the record as a whole, it is concluded that
claimant has failed to establish that any condition of
disability on and subsequent to November 5, 1991 (when she
left work at Dr. Crabb's advice) is causally related to the
initial work incident of January 24, 1991. Accordingly,
defendants prevail. Other issues are rendered moot by the
same logic as this holding.

ORDER

THEREFORE, IT IS ORDERED:

Claimant takes nothing.

Costs are assessed to claimant.

Signed and filed this ____ day of April, 1994.

________________________________
DAVID RASEY
DEPUTY INDUSTRIAL COMMISSIONER

Page 6

Copies To:

Mr Stephen M Engelhardt
Attorney at Law
30 South 14th Street
PO Box 217
Denison Iowa 51442

Ms Judith Ann Higgs
Attorney at Law
701 Pierce Street Ste 200
PO Box 3086
Sioux City Iowa 51102

5-1402.40
Filed April 11, 1994
DAVID RASEY

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
SANDRA BRYAN, :
:
Claimant, : File Nos. 974416
:
vs. A R B I T R A T I O N
:
FARMLAND FOODS, INC., : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________

5-1402.40
Claimant failed to prove a condition of disability was
causally related to work injury.

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JESSE EDWARDS, :
:
Claimant, :
:
vs. :
: File No. 974969
MASON HANGER-SILAS MASON, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
TRAVELERS INSURANCE CO., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________

STATEMENT OF THE CASE

This is a proceeding in arbitration upon the petition of
claimant, Jesse Edwards, against his employer, Mason Hanger-Silas
Mason, and its insurance carrier, Travelers Insurance Company,
defendants. The case was heard on June 26, 1992 at the Des
Moines County Courthouse. The record consists of the testimony
of claimant. The record also consists of joint exhibits 1-3.

ISSUE

The sole issue to be determined is:

The nature and extent of claimant's permanent partial
disability.

FINDINGS OF FACT

The deputy, having heard the testimony and considered all
the evidence, finds:

Claimant is 61 years old and right hand dominant. He com
menced his employment with defendant-employer in January of 1986.
On July 16, 1990, claimant sustained a work-related injury. At
the time of the work injury, claimant was operating a piece of
machinery whereby claimant was required to feed shells into an
automatic machine. Claimant was new to the operation of the
machine and the machine crushed the distal end of the right index
finger.

Claimant was transported to the Burlington Medical Center
where Mitchell Paul, D.O., amputated the distal end of the right
index finger. Dr. Paul's examination found "...a volar oblique
skin injury with the skin devitalized at the level of the
mid-portion of the middle phalanx and the bone being amputated at
the level of the DIP joint." (Exhibit 3, page 1)

Page 2

Subsequent to the amputation, claimant experienced pain in
his right palm at the base of his right index finger. Dr.
Mitchell opined that claimant was experiencing "a painful stump
of the profundus tendon which is probably being hooked on to by
either lumbrical or by a vinculae." (Ex. 3, p. 3)

Dr. Paul performed a second surgery. The procedure con
sisted of: "Excision of profundus tendon, both of finger and
palm, with suturing of the profundus to the sublimis tendon at
the level of the wrist." (Ex. 3, p. 5)

As of January 8, 1991, Dr. Paul opined:

PLAN AT THIS TIME: Follow the patient only on a prn
basis. It should be noted that all of the pain in his
palmer region is completely resolved and his functional
capacity is significantly improved since this secondary
procedure was performed.

(Ex. 3, p. 7)

On March 6, 1991, Dr. Paul examined and evaluated claimant.
He wrote in his report of that date:

The patient postoperatively did well although has had
some degree of weakness but no pain within the palm
area. At the present time, he does have some degree of
impairment regarding his hand related both to the ampu
tation itself as well as to the weakness that he is
experiencing in his index finger.

Utilizing the AMA guidelines for permanent impairment,
the patient's impairment of his index finger is approx
imately 75% which represents 15% of the hand which is
14% of the upper extremity which, utilizing the conver
sion chart, is 8% of the whole person deficit.

(Ex. 3, p. 8)

CONCLUSIONS OF LAW

The right of an employee to receive compensation for
injuries sustained is statutory. The statute conferring this
right can also fix the amount of compensation payable for differ
ent specific injuries. The employee is not entitled to compensa
tion except as the statute provides. Soukup v. Shores Co., 222
Iowa 272, 268 N.W. 598 (1936).

Compensation for permanent partial disability begins at
termination of the healing period. Section 85.34(2). Permanent
partial disabilities are classified as either scheduled or
unscheduled. A specific scheduled disability is evaluated by the
functional method; the industrial method is used to evaluate an
unscheduled disability. Simbro v. Delong's Sportswear, 332 N.W.2d
886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa
1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95
(1960).

Page 3

An injury to a scheduled member may, because of after
effects or compensatory change, result in permanent impairment of
the body as a whole. Such impairment may in turn be the basis
for a rating of industrial disability. It is the anatomical
situs of the permanent injury or impairment which determines
whether the schedules in section 85.34(2)(a) - (t) are applied.
Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986);
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980);
Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
Soukup, 222 Iowa 272, 268 N.W. 598 (1936).

A wrist injury generally is an injury to the hand, not the
upper extremity. The hand extends to the distal end of the
radius and ulna, including the carpus or wrist. Elam v. Midland
Mfg., II Iowa Industrial Commissioner Report 141 (App. 1981).

In the case before the undersigned, claimant had undergone
two surgical procedures. One procedure was to the right index
finger. The other surgery was a procedure which resulted in a
scar involving the palm of the hand and a horizontal scar at the
wrist area. The tendon at the wrist was involved. Claimant
testified that his right hand grip had lessened since the work
injury and that he had to hold a screwdriver in his left hand.
At the hearing, claimant demonstrated that he could not pull his
fingers to the palm of his right hand. Claimant also testified
that he had experienced difficulties with his right hand in oper
ating power tools. Claimant's work injury affected more than his
right index finger. Claimant's right hand had been affected too.

It appears to this deputy that claimant's work injury is an
injury to the right hand. Dr. Paul assesses the injury as a 15
percent injury to the right hand. His medical opinion is uncon
troverted.

Therefore, it is determined that claimant is entitled to a
15 percent permanent partial disability to the right hand. His
weekly benefits are computed according to section 85.34(a)(1).
The computation is: .15 x 190 weeks = 28.5 weeks. Claimant has
previously received 17.571 weeks. He is owed 10.929 weeks of
benefits at the stipulated rate of $224.18 per week commencing
from November 19, 1990.

Page 4

ORDER

THEREFORE, IT IS ORDERED:

Defendants are liable for twenty-eight point five (28.5)
weeks of permanent partial disability benefits at the stipulated
rate of two hundred twenty-four and 18/l00 dollars ($224.18) per
week commencing from November 19, 1990.

Accrued benefits are to be paid in a lump sum together with
statutory interest at the rate of ten percent (10%) per year pur
suant to section 85.30, Iowa Code as amended.

Defendants shall receive credit for all benefits previously
paid

Costs are taxed to defendants pursuant to rule 343 IAC 4.33.

Defendants shall file a claim activity report as requested
by this division and pursuant to rule 343 IAC 3.l.

Signed and filed this ____ day of July, 1992.

______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER

Copies To:

Mr. Michael J. Schilling
Attorney at Law
P O Box 821
205 Washington Street
Burlington, Iowa 52601

Ms. Vicki L. Seeck
Attorney at Law
600 Union Arcade Building
Davenport, Iowa 52801

1803; 1803.1
Filed July 21, 1992
MICHELLE A. McGOVERN

1803; 1803.1
Claimant was awarded a 15 percent permanent partial
disability to the right hand. Claimant's right index finger
was crushed by a machine in defendant-employer's plant. The
injury not only affected the right index finger, but it also
affected the tendons in the right palm and wrist area. The
injury was deemed to be an injury to the hand.

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________

RANDY SCHULTZEN,

Claimant,

vs.
File No. 975078
JOHN MORRELL & CO.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and

HOME INSURANCE,

Insurance Carrier,
Defendants.
________________________________________________________________
STATEMENT OF THE CASE
Randy Schultzen, claimant, has filed a petition in arbitration and
seeks workers compensation benefits from John Morrell & Co., defendant
employer, and Home Insurance Co., defendant insurance carrier, for an
injury that occurred on January 30, 1991. The hearing was held before
the undersigned on January 11, 1995 at Sioux City, Iowa. The evidence
in this case consists of the testimony of claimant, Beverly Schultzen,
Marla McMonigal, Tracy Godsey; claimant's exhibits 1 through 12 and
defendants' exhibits A through D. The case was considered fully
submitted at the close of the hearing.
ISSUES
The parties presented the following issues for resolution:
1. Whether claimant's injury is the cause of any permanent disability;
2. Whether claimant is entitled to healing period benefits; and,
3. Whether claimant is entitled to permanent partial disability
benefits, and, if so, the appropriate commencement date for benefits.
FINDINGS OF FACT
The undersigned deputy industrial commissioner, having reviewed all of
the evidence received, finds the following facts:
On the day of the hearing claimant was 36 years old and married with
three children, all of whom were still living with him and his wife.
Claimant graduated from high school in 1976. He took one class in
electronics at Western Iowa Technical College after graduating from
high school.
Claimant began with Flavorland Industries as a meat cutter in 1976. He
remained there for a year and a half. He was paid $5.53 per hour and
left when the company closed down after a strike.
Claimant next worked for Woolworth Construction performing general
carpentry work. He stayed with Woolworth Construction for
approximately a year and a half and was paid $4.50 per hour. He left
Woolworth Construction when the business closed down.
He next worked for Siouxland Beef. He earned between $8.00 and $8.50
per hour while employed for Siouxland. Claimant performed mainly knife
work and headed cattle while employed there. He left when the company
was closed down and went to work immediately at Floyd Valley, also a
meat processing plant. While at Floyd Valley he primarily worked at

skinning and boning hams. He left Floyd Valley when they had the
annual summer layoff.
After being off work for two or three months he began his employment
with defendant employer in 1981. When he started with defendant
employer he was paid $8.53 per hour and at the time of his injury in
January of 1991 he was paid $8.75 per hour. At the time of his
deposition in March of 1993 he was being paid $9.10 per hour.
In 1986 claimant reported to the company nurse that he had a ruptured
disc. (Defandants' Exhibit A, page 12) Claimant had been told that
his disc was ruptured by a chiropractor who was treating him for low
back strain. No objective evidence indicates that claimant had a
ruptured disc in 1986. Even if he did have a ruptured disc, it is
clear he completely recovered before his January 30, 1991 injury.
Claimant was able to work for almost five years after his 1986 low back
strain, performing heavy lifting between 70 and 90 pounds on a
consistent daily basis with absolutely no problems. His low
back strain in 1986 had no impact on his 1991 injury that is
the subject of this case.
On January 30, 1991, claimant was working at the Vac Pac machine. He
was lifting baskets of hams that weighed between 80 and 90 pounds onto
a conveyor belt, when he felt something in his back give as he lifted
one of the baskets. He reported to the foreman and then reported to
the company nurse for treatment. (Claimant's Exhibit 1)
An MRI of February 18, 1991 revealed that claimant had a large
herniated disc centrally and on the left at L5_S1. (Cl. Ex. 2, p. 2)
Claimant was taken off work from January 30, 1991 through April 4,
1991. He returned to light duty work on April 5, 1991.
On June 24, 1991, he was examined by and his care was assumed by Ralph
F. Reeder, M.D., a neurosurgeon, who noted that claimant has left-sided
sciatica with pain radiating down to the thigh and calf. Dr. Reeder
prescribed bed rest and a regimen of steroid treatment. If bed rest
and drug therapy were unsuccessful, Dr. Reeder wanted to consider
surgical decompression. (Cl. Ex. 3, p. 2)
At a recheck visit on July 17, 1991, Dr. Reeder noted that claimant had
improved with bed rest and drug therapy. He was kept off work until
July 29, 1991. On July 29, 1991, claimant was allowed to return to
light duty work with the restriction that he lift no more 10 pounds.
(Cl. Ex. 4)
Dr. Reeder determined that claimant had reached maximum medical
improvement on August 29, 1991 and he was allowed to return to work
with the permanent work restriction that he lift no more than 50
pounds. Dr. Reeder determined that claimant had a 0 percent permanent
impairment rating based on the AMA Guides To The Evaluation of
Permanent Impairment. However, he did note that claimant may suffer
recurrent leg discomfort that may require an amendment of his
impairment rating. (Cl. Ex. 5)
When claimant returned to work in August of 1991 he was given a job as
a box maker that complied with his work restrictions. Claimant
characterized the physical demands of the box making job as light to
medium work. (Def. Ex. C, p. 56) He was not able to return to the job
he had performed prior to work injury because he was unable to lift
greater than 50 pounds. He has not missed any work because of his back
injury since August of 1991. (Def. Ex. C, p. 46) He currently takes
no prescription medication for his back. No back surgery is planned.
In August of 1992 claimant injured his knee while playing volleyball.
His knee was surgically repaired and claimant remained off work for a
period of time to allow his knee to heal. Claimant was able to play
coed volleyball during 1992 and 1993 with minimal discomfort to his
back. (Def. Ex. C)
In March of 1993 claimant was evaluated for a disability determination
at the request of defendants by Joel T. Cotton, M.D. Dr. Cotton
determined claimant had no permanent disability, although he agreed
with Dr. Reeder's restriction of a 50 pound lifting requirement for
claimant. (Cl. Ex. 6)
In December of 1993 claimant began experiencing pain in his shoulder

arm and hands. Any injury to his shoulder, arms and hands is not at
issue in this case. Ultimately, his shoulder and arm problems resulted
in his being taken off work from February 7, 1994 through the date of
the hearing. He has not been allowed to return to work for defendant
employer as a result of his shoulder, arm and hand complaints, not
because of any problems with his back. He still considers himself an
employee of defendant employer.
Claimant currently works for a construction company owned by his
brother. He is paid $500.00 per week and is able to remain within his
50 pound lifting restriction.
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to be determined is whether claimant's injury of
January 30, 1991 has resulted in any permanent disability.
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).
The fact that both Dr. Reeder and Dr. Cotton have determined that
claimant has a permanent 50 pound lifting restriction indicates that
claimant's injury has resulted in permanent disability. Claimant is no
longer able to perform the job he was able to do before he suffered the
ruptured disc. The fact that no doctor has provided a functional
impairment rating does not mean that claimant does not suffer from
permanent disability. The disability exists whether a physician
provides an impairment rating or not. Because claimant has
permanent work restrictions that will be with him for the rest
of his life, it is determined that his injury has resulted in
permanent disability.
The second issue to be determined is claimant's entitlement to healing
period benefits.
Having determined that claimant's injury did result in permanency, and
in light of the stipulation on the hearing report, defendants are
liable for healing period benefits from January 30, 1991 through April
4, 1991 and from June 21, 1991 through July 28, 1991. Defendants are
also liable for temporary partial disability benefits from July 2, 1991
through August 25, 1991.
The final issue to be determined is claimant's entitlement to permanent
partial disability benefits.
Since claimant's injury is to his back an evaluation of his industrial
disability is mandated.
Functional impairment is an element to be considered in determining
industrial disability which is the reduction of earning capacity, but
consideration must also be given to the injured employee's age,
education, qualifications, experience and inability to engage in
employment for which the employee is fitted. Olson v. Goodyear Serv.
Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by a medical
evaluator does not equate to industrial disability. Impairment and
disability are not synonymous. The degree of industrial disability can

be much different than the degree of impairment because industrial
disability references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss. Although
loss of function is to be considered and disability can rarely be found
without it, it is not so that a degree of industrial disability
is proportionally related to a degree of impairment of bodily function.
Factors to be considered in determining industrial disability include
the employee's medical condition prior to the injury, immediately after
the injury, and presently; the situs of the injury, its severity and
the length of the healing period; the work experience of the employee
prior to the injury and after the injury and the potential for
rehabilitation; the employee's qualifications intellectually,
emotionally and physically; earnings prior and subsequent to the
injury; age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted.
Loss of earnings caused by a job transfer for reasons related to the
injury is also relevant. Likewise, an employer's refusal to give any
sort of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).

These are matters which the finder of fact considers collectively in
arriving at the determination of the degree of industrial disability.
There are no weighting guidelines that indicate how each of the factors
are to be considered. Neither does a rating of functional impairment
directly correlate to a degree of industrial disability to the body as
a whole. In other words, there are no formulae which can be applied
and then added up to determine the degree of industrial disability. It
therefore becomes necessary for the deputy or commissioner to draw upon
prior experience as well as general and specialized knowledge to make
the finding with regard to degree of industrial disability.
See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 529 (App. March 26, 1985);
Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28, 1985).
Compensation for permanent partial disability shall begin at the
termination of the healing period. Compensation shall be paid in
relation to 500 weeks as the disability bears to the body as a whole.
Section 85.34.
Claimant was 34 years old on the date of the hearing. His back injury
has resulted in minor loss of earning capacity because heavy lifting
jobs are not foreclosed to him. Until he hurt his knee, shoulder, arm,
and hands, claimant was able to work for defendant employer with no
lost time attributable to his back since August 1991. His ruptured
disc does make him a less attractive potential employee to prospective
employers and he does have many years left in the work force.
His injury has not required surgical intervention. He no longer takes
prescription medication for his pain. Although he still suffers from
occasional discomfort, his healing period was relatively brief.
After considering all of the factors used to determine industrial
disability, it is the decision of the undersigned that claimant has
sustained a 10 percent industrial disability. The appropriate
commencement date for permanent partial disability benefits to begin is
August 29, 1991, the date that Dr. Reeder determined claimant had
reached maximum medical improvement.
ORDER
THEREFORE, IT IS ORDERED:
That defendants shall pay claimant fifty (50) weeks of permanent
partial disability at the rate of two hundred eighty_three and 39/100
dollars ($283.39).
That defendants shall pay claimant fourteen point seven one four
(14.714) weeks of healing period at the rate of two hundred
eighty_three and 39/100 dollars ($283.39).
That defendants shall pay accrued benefits in a lump sum, and shall

receive credit for benefits previously paid.
That defendants shall pay interest on the award, as governed by Iowa
Code section 85.30.
That defendants shall pay the costs of this action.
That defendants shall file claim activity reports as requested by the
agency.
Signed and filed this ____ day of April, 1995.
________________________________
TERESA K. HILLARY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Ms Kay E Dull
Attorney at Law
509 9th St
P O Box 3107
Sioux City IA 51102
Mr Thomas M Plaza
Attorney at Law
701 Pierce St Ste 200
P O Box 3086
Sioux City IA 51102-3086
5-1803
Filed April 20, 1995
Teresa K. Hillary
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
RANDY SCHULTZEN,

Claimant,

vs.
File No. 975078
JOHN MORRELL & CO.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and

HOME INSURANCE,

Insurance Carrier,
Defendants.
________________________________________________________________
5-1803:
Thirty-four year old claimant with ruptured disc at L5-S1 and with
permanent 50 pound lifting restriction given a 10 percent industrial
disability award. Claimant had no surgery and required none, took no
prescription pain medication and had minimal loss of earnings. His
inability to work was due to other injuries unrelated to his back
injury.

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MARY KENT,

Claimant,

vs.

CHARITON MANOR CARE CENTER, File Nos.
975093/1013393

Employer, A P P E A L

and D E C I S I O N

WAUSAU INSURANCE COMPANY,

Insurance Carrier,
Defendants.
____________________________________________________________

This decision will be based upon the agency record and
evidence that has been admitted into evidence. Only those
facts and conclusions of law necessary to resolve the issues
raised on appeal will be discussed.

ISSUES

The dispositive issues on appeal are: Has claimant met her
burden of proving that she suffered an injury arising out of
and in the course of her employment May 7, 1990 and the
extent of claimant's industrial disability from an injury on
January 27, 1991.

FINDINGS OF FACT

Mary Kent (hereinafter claimant or Kent) was born on
December 12, 1947. She worked for Chariton Manor (defendant
employer), was terminated for excess absenteeism in March
1988 (transcript, page 72) and was rehired in January 1989
to work as a nurse assistant. (Tr., p. 49) Claimant worked
an average of 30 hours a week earning $4.42 - $4.96 per
hour. (Tr., pp. 73-74) Prior to her employment with
Chariton Manor she held unskilled jobs including factory
jobs, nursing homes (tr., p. 30), waitressing (tr., p. 31),
and sharecropping with her parents (tr., p. 56). She was
paid $4 - $5 per hour for jobs prior to working for Chariton
Manor. (Tr., p. 47) Kent initially testified she injured
her wrist on or about May 7, 1990 (tr., pp. 18-19) but was
uncertain of the exact date (tr., p. 50). She testified she
kept working (tr., p. 50) but the injury later developed
into elbow and shoulder problems (tr., p. 19). She stated
she also reported the incident that bothered her shoulder
elbow, and neck. (Tr., p. 19) She was absent from work on

Page 2

May 8, 1990. (Defendants' Exhibit C., p. 96) She stated
the injury occurred when a patient twisted her arm. (Tr.,
pp. 18-19) She said she sought medical treatment from Dr.
Rasmussen and a year later from Rodney E. Johnson, M.D.
(Tr., p. 20) She stated, "my shoulder's always hurt" (tr.,
p. 21) and that she did not take time off at the time of the
injury (tr., pp. 19 and 50).

On January 27, 1991 when Kent and three other aides were
walking a patient back to his room, the patient shoved Kent.
She hit her back on a feeding table and she went over
backward. (Tr., p. 21) Claimant sought medical treatment
and was off work until March 1991 when she unsuccessfully
attempted to return to work. (Tr., pp. 23-24) She stated
that if she stands for a long period of time her back
bothers her and her left leg swells. (Tr., p. 30)
Claimant has a ninth grade education and has no GED.
Training at Chariton Manor (tr., p. 32) led to claimant
receiving a certificate as a nursing assistant (tr., p. 45).
She received a certificate as a medical aide in 1990. (Tr.,
p. 45) Claimant's typical day consists of having coffee,
sitting around smoking, occasionally crying, sometimes
feeling sorry for herself and having trouble sleeping.
(Tr., pp. 32-33)

Claimant has not made application for employment since
leaving work following her January 27, 1991 injury. (Tr.,
p. 52) On February 4, 1991 claimant filed an application
for disability benefits under the Social Security Act. The
application was approved by an Administrative Law Judge on
March 26, 1993 who decided the benefits should commence
January 31, 1991.

The evidence in the record contains no evidence of medical
treatment for claimant prior to January 27, 1991.
Following the work incident on January 27, 1991 claimant was
seen by Timothy Kenney, M.D. On March 4, 1991 Dr. Kenney
released claimant to return to work (tr., p. 23) with
restrictions which include no lifting over 15 pounds, no
repetitive bending, stooping or twisting activities. (Def.
Ex. B, p. 94) There are no records from Dr. Kenney in
evidence. Likewise, there are no medical records in
evidence from Richard Tunkel, M.D., Craig Dubois, M.D., and
Sam Graham, Ph.D., clinical psychologist who claimant also
saw. (Tr., p. 23 and Def. Ex. B, p. 92)

On April 15, 1991 an MRI of the lumbar spine revealed severe
degenerative facet arthropathy at L4-5 and L5-S1, moderately
advanced degeneration of the L5-S1 disc, mild degeneration
of the L3-4 disc and a smooth and diffuse disc protrusion at
L5-S1. (Def. Ex. B, pp 2-3) On May 30, 1991 claimant was
seen by Daniel J. McGuire, M.D. Dr. McGuire noted back pain
and believed claimant had to be pushed hard at physical
therapy. Claimant failed to keep an appointment with Dr.
McGuire on June 13, 1991. (Def. Ex. B, p. 45) On June 24,
1991 Dr. McGuire noted that claimant was making no progress.
Claimant was given return to work guidelines. Claimant told
him that she could not do any of the jobs under the return

Page 3

to work guidelines. Dr. McGuire noted "with that mind
set...we are going to have a very difficult time winning
this ball game." (Def. Ex. B, p. 44)

On September 27, 1991 Thomas W. Bower, L.P.T., evaluated
claimant. Mr. Bower noted past treatment had been primarily
conservative although the patient had not responded. All of
the physical finds were completely disproportionate to the
subjective complaints. Pain levels were extremely high and
also disproportionate to the heart rate and visual findings.
To Mr. Bower claimant appeared to be very definitely a
symptom magnifier and the testing was considered invalid.
(Def. Ex. B, pp. 18-19) Mr. Bower saw claimant again on May
20, 1992. Mr. Bower rated the overall impairment of the
lumbar spine at nine percent of the whole body. (Def. Ex.
B, p. 13)

Claimant was examined by John H. Kelley, M.D., on September
10, 1992. Dr. Kelley rated claimant as having an eight
percent impairment of the body as a whole because of her
lower back condition. (Def. Ex. B, p. 41) In a letter
dated December 3, 1992 Dr. Kelley indicated that pain in
claimant's back limited her ability to work and could be
aggravated by long hours of work both standing and sitting
and that periodic position changes would be necessary.
(Def. Ex. B, p. 35)

On July 23, 1993 Rodney E. Johnson, M.D., wrote that
defendants' counsel's letter of July 14, 1993 accurately
reflected Dr. Johnson's opinion. The July 14, 1993 letter
indicated that the last time Dr. Johnson saw claimant was
June 10, 1992 and Dr. Johnson encouraged claimant to work.
(Def. Ex. B, p. 7)

In a letter dated August 22, 1993 Daniel J. McGuire, M.D.,
expressed his disappointment that claimant was not
participating in her health care and was not doing her
exercises. Dr. McGuire thought that claimant could return
to work on June 24, 1991 but claimant was "quite
recalcitrant to any ideas about work." (Def. Ex. B, p. 31)
He assigned claimant a five percent permanent partial
disability based on her subjective complaints of low-back
pain. (Def. Ex. B, p. 31)

Jack E. Reynolds, M.S., C.R.C., a vocational
rehabilitationist, began working with claimant on December
4, 1992. He met with claimant twice and was to help her
acquire a GED and obtain suitable employment. (Def. Ex. B,
pp. 89, 91) Pursuant to claimant's counsel's request on
December 22, 1992 Mr. Reynolds suspended contact with
claimant until further notice. On September 3, 1993
claimant was offered a job with defendant employer as a
laundry aide beginning September 11, 1993 working 24 hours a
week earning $4.65 per hour. (Def. Ex. B, p. 50 and Tr.,
pp. 77-78) Drs. Johnson and McGuire and Mr. Bower thought
that claimant could do the job offered. (Def. Ex. B, pp. 5,
29, and 9) Claimant did not take the job offer. (Tr., p.
77 and Def. Ex. E, p. 105) Defendant employer is willing to
employ and accommodate claimant. (Tr., pp. 78 and 85)

Page 4

CONCLUSIONS OF LAW

The first issue to be resolved is whether claimant has met
her burden of proving that she suffered an injury arising
out of and in the course of her employment May 7, 1990.

The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. App. P. 14(f).

The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).

A personal injury contemplated by the workers'
compensation law means an injury, the impairment of health
or a disease resulting from an injury which comes about, not
through the natural building up and tearing down of the
human body, but because of trauma. The injury must be
something which acts extraneously to the natural processes
of nature and thereby impairs the health, interrupts or
otherwise destroys or damages a part or all of the body.
Although many injuries have a traumatic onset, there is no
requirement for a special incident or an unusual occurrence.
Injuries which result from cumulative trauma are
compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d
368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa
1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219,
38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries,
Inc., 218 Iowa 724, 254 N.W. 35 (1934). An occupational
disease covered by chapter 85A is specifically excluded from
the definition of personal injury. Iowa Code section
85.61(5); Iowa Code section 85A.8.

Claimant plead a traumatic injury occurred on May 7,
1990. Her recollection of the date when the incident
occurred was vague and she did not know the date when it
occurred. Her alleged symptoms from injury were also vague.
She first indicated that she hurt her wrist but this
allegedly later affected her elbow, shoulder and neck.
There is no evidence that she sought medical treatment for
any of the symptoms. There is no reliable corroboration of

Page 5

the alleged injury. The only possible corroboration is that
claimant was absent from work on May 8, 1990 (the day after
the alleged injury) but claimant testified that she did not
miss work because of the injury. Under the facts in this
record it cannot be said that claimant has met her burden of
proof. Claimant did not suffer an injury on May 7, 1990
which arose out of and in the course of her employment.

It should be noted that the conclusion above would be
the same whether or not a first report of injury indicating
an injury date of May 18, 1990 was filed. Iowa Code section
86.11 provides in relevant part:
The report to the industrial commissioner of injury shall be
without prejudice to the employer or insurance carrier and
shall not be admitted in evidence or used in any trial or
hearing before any court, the industrial commissioner or a
deputy industrial commissioner except as to the notice under
section 85.23.

A first report of injury is not to be used in evidence to
determine if an injury arose out of and in the course of
employment. In addition, the injury date of May 18, 1990 is
obviously different from an alleged traumatic injury date of
May 7, 1990.

The second issue to be resolved is the extent of claimant's
industrial disability resulting from her January 27, 1991
injury.

Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications,
experience and inability to engage in employment for which
the employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).

A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.

Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;

Page 6

functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.

There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).

Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Iowa Code section
85.34.

Claimant was 44 years old at the time of her injury. She
has a functional impairment of the lumbar spine of five to
nine percent. She has limited formal education. Her work
experience is unskilled jobs where she was paid at or about
minimum wages. She was working 30 hours per week when
injured. She has not had surgery. She has not cooperated
with medical treatment to improve her condition. She is
poorly motivated to return to work and apparently was
discouraged from attempting to find employment by her
lawyer. She has not returned to work although it was
medically indicated that she could do so as early as March
1991. Her post injury earnings are not known because she
has not returned to work. Her inability to work is due in
part to her self-limitation and physical condition not
related to her January 27, 1991 injury. The employer is
willing to rehire her and to accommodate her.
When all relevant factors are considered claimant has proved
that she has a 20 percent industrial disability resulting
from her January 27, 1991 injury.
WHEREFORE, the decision of the deputy is affirmed.

ORDER

THEREFORE, it is ordered:
Regarding the May 7, 1990 injury (File No. 1013393):
That claimant shall take nothing from these proceedings.

Page 7

That claimant pay the costs.
Regarding the January 27, 1991 injury (File No. 975093):
That defendants are to pay unto claimant healing period
benefits from January 27, 1991 until June 10, 1992, at the
rate of ninety and 74/100 dollars ($90.74) per week.
That defendants are to pay unto claimant one hundred (100)
weeks of permanent partial disability benefits at the rate
of ninety and 74/100 dollars ($90.74) per week from June 11,
1992.
That defendants shall pay accrued weekly benefits in a lump
sum.
That defendants shall pay interest on unpaid weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
That defendants are to be given credit for benefits
previously paid.
That claimant shall pay the costs of the appeal including
the transcription of the hearing. Defendants shall pay all
other costs.

That defendants shall file claim activity reports as
required by this agency pursuant to rule 343 IAC 3.1(2).
That defendants pay the six hundred dollar ($600) bill of
Dr. Kelley.
Signed and filed this ____ day of June, 1994.

________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER

Copies To:

Mr. Garry D. Woodward
Attorney at Law
200 Flynn Bldg.
Des Moines, Iowa 50309

Mr. E. J. Kelly
Attorney at Law
2700 Grand Ave., Ste 111
Des Moines, Iowa 50312

5-1100; 5-1402.20; 5-1803
Filed June 28, 1994
Byron K. Orton

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MARY KENT,

Claimant,

vs.

CHARITON MANOR CARE CENTER, File Nos.
975093/1013393

Employer, A P P E A L

and D E C I S I O N

WAUSAU INSURANCE COMPANY,

Insurance Carrier,
Defendants.
____________________________________________________________

5-1100; 5-1402.20
Claimant failed to prove a traumatic injury occurred on the
date alleged. There was no corroboration that the injury
occurred. Claimant was vague about when injury occurred and
what were the resulting symptoms.

5-1803
Claimant was 44 years old with a ninth grade education. She
had no surgery, was poorly motivated, did not cooperate with
medical treatment, had a functional impairment of 5-9
percent of the lumbar spine and she had discontinued working
with a vocational rehabilitationist on the advice of her
attorney. She was found to have a 20 percent industrial
disability.

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
MARY KENT, :
:
Claimant, :
:
vs. : File Nos. 975093
: 1013393
CHARITON MANOR CARE CENTER, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
WAUSAU INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________

STATEMENT OF THE CASE

These cases came on for hearing on November 3, 1993, at
Des Moines, Iowa. These are proceedings in arbitration
wherein claimant seeks compensation for permanent partial
disability benefits as a result of alleged injuries
occurring on May 7, 1990 (File No. 1013393) and January 27,
1991 (File No. 975093). The record in the proceeding
consists of the testimony of the claimant; claimant's
husband, Vernon Kent; claimant's mother, Tonia Boren; Stan
Vander-Woude, and Jack Reynolds; claimant's exhibits 3 and
4; and, defendants' exhibit 1, parts A-E.

ISSUES

The issues for resolution are:

Regarding File No. 1013393:

1. Whether an injury arose out of and in the course of
claimant's employment on May 7, 1990;

2. Whether there is a causal connection as to any
temporary total disability or healing period or any
permanency and claimant's alleged May 7, 1990 injury;

3. The nature and extent of claimant's permanent
disability, if any, and entitlement to disability benefits;

4. Whether claimant gave timely notice under Iowa Code
section 85.23; and,

5. Iowa Code section 85.39 independent medical exam:
Whether defendants should pay a $650 bill for such an exam;

Regarding File No. 975093:

1. Whether there is a causal connection as to

Page 2

claimant's alleged injury and any healing period or
temporary total disability and any permanent disability;

2. The nature and extent of claimant's permanent
disability and entitlement to disability benefits; and,

3. Iowa Code section 85.39 issue as to an independent
medical exam by Dr. Kelley, M.D., and whether defendants
should pay the $650 bill. This is the same bill as set out
in the issues in the previous file.

FINDINGS OF FACT

The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:

Claimant is a 45-year-old who went through the ninth
grade and does not have a GED. She testified as to her work
history which began with her working the fields as a
sharecropper and doing restaurant work, serving in the
factories, sewing and cutting chickens. On two occasions,
she worked for defendant employer, the first in December of
1987, and she was terminated in March of 1988 for excessive
absenteeism. Claimant was then rehired again by defendant
employer in January of 1989. Claimant said her most skilled
job was her nursing home job and that she obtained a medical
assistance certificate at Indian Hills Community College in
1989 through help by the defendants.

Claimant described her work duties at defendant
employer which included getting people up, feeding them,
dressing them, taking them to their rooms, carrying for the
elderly.

Claimant testified as to her May 7, 1990 alleged
injury. She indicated that her arm was injured when she was
taking a patient to the bathroom and the patient jumped up
and twisted her arm. She indicated that her wrist and elbow
started hurting and then her shoulder and neck began
hurting. She reported this to the employer and did not have
any time off. She related some of the medical services
rendered to her for this alleged injury. Claimant said that
her shoulder never was repaired and that it hurts in the
middle of her shoulder down to the middle of her back. She
indicated that surgery was recommended but she was not able
to be assured as to whether her pain would stop so claimant
decided not to have the surgery if she was going to have the
pain anyway.

Claimant then testified as to her January 27, 1991
alleged injury which claimant said occurred when she and
three aides were walking a patient to his room and claimant
was shoved against a table and went over it. Claimant
worked four more days and then eventually had physical
therapy and was put in traction. She said she did not get
any results from this medical treatment. Claimant related
the medical services she obtained. Claimant said she was
off January 27, 1991 to March 1991 for this 1991 injury and
tried to go back to work around March 4, 1991. Claimant
said she worked two and one-half hours and was pushing a

Page 3

patient and her back hurt. She left work and has not worked
since. Claimant said she is on social security disability
now because of these injuries.

She related that a Dr. Kenney released her to work on
March 4, 1991, and she then called him when she didn't think
she could work after trying and he withdrew the release and
claimant has not worked since March 4, 1991.

Claimant acknowledged that she has had a right elbow
cubital tunnel surgery from which she has not yet been
relieved of problems. She emphasized that she is not
claiming anything from this problem and that her right elbow
and surgery has nothing to do with any injury in this case
at bar.

Claimant said she has trouble standing and sitting for
long periods of time and her legs swell. Claimant related
she saw a psychiatrist for problems she feels is related to
her injuries.

Claimant said she used to be very active, always on the
go, and can't play with her children as she used to go
bowling, camping, etc. She emphasized that she would work
if she could and didn't want to get psychiatric treatment.
It appears to the undersigned her reason for that is she
didn't want to believe she had psychiatric problems and the
stigma that might go along with it.

Claimant indicated she cries a lot and her typical day
is getting up, having coffee, smoking, sitting around, lying
down, and sometimes feels sorry for herself and gets
depressed. She said she doesn't sleep with her husband as
she does not sleep well at night.

Claimant acknowledged that she has made no employment
applications since she was hurt in January 1991 to the
present.

Claimant was asked whether she met with Jack Reynolds,
who was at the court hearing, as to returning claimant to
work. There were two meeting considering this. She was
asked whether her lawyer told her not to work with Mr.
Reynolds. Claimant said she didn't remember. Claimant did
acknowledge that defendant employer did offer her a job in
September of 1993 and gave her a date and time for her to
return to the job they had and that she didn't go back to
work. Claimant admitted that if she goes back to work she
will lose her social security.

Vernon Kent, claimant's husband, testified that he is
living with claimant and that he hasn't slept with her since
the injury. He said claimant is more on the couch than in
the bed. She doesn't sleep well and lies on the couch and
watches television. He indicated she does very little
housework and that he does the cooking with the help of his
daughter.

Mr. Kent said claimant has a changed personality now
since the injury, a shorter temper and not a happy-go-lucky

Page 4

person. He emphasized again that she stays home watching
television. Mr. Kent further indicated that claimant used
to like to have her grandchildren around but doesn't enjoy
this now and would rather have them stay away. He said his
wife gets upset and cries. He said she wanted to be a
registered nurse and would like to work and take care of old
people but now she can't. He said his wife feels as if part
of her life has been taken away. She is depressed and
stares into space. He said she used to enjoy cooking and
that now the family brings in the food for a potluck since
his wife can't cook.

Tonia Boren, claimant's mother, testified that she is
in claimant's home often and that claimant sits most of the
time but cannot sit or stand too long. She said claimant is
depressed a lot and doesn't do a lot and cries a lot. Ms.
Boren said that before claimant's injuries she was very
active. She bowled, painted and fished but can't do these
anymore. She said that claimant does not want to see her
five grandchildren now as she is in pain. She said she
knows claimant is in pain by looking at her. Ms. Boren
said she, herself, worked for defendant employer until she
quit on October 16, 1993.

Stan Vander-Woude is defendant employer's nursing home
administrator and has worked there 17 years. He generally
oversees the operation of the nursing home. He knows
claimant. He said claimant was employed there on two
different occasions. She was a good worker and was a good
employee and did her work. He said claimant still had an
absenteeism problem after she was rehired in January 1989.

Mr. Vander-Woude said that claimant is still considered
an employee of defendant employer and that she was never
terminated. He said he met with Jack Reynolds and tried to
find a constructive job to get claimant back to work to see
what she could do. He related the position to be laundry
aide and described the job. He indicated it was light duty
work and that it was okayed by two doctors. He said that
claimant could work 24 hours a week.

Mr. Vander-Woude said claimant was offered the job and
she never reported or called in. The job is still available
right now. He indicated the hourly wages as $4.65 per hour
and that when claimant last worked, she was making $4.96,
the last increase from the $4.65 to the $4.96 rate. He
acknowledged that he said claimant tried to work and stayed
for two and one-half hours. He didn't recall the day but
thought it was approximately three weeks after her injury
date which would have been the January 27, 1991 date.

Jack Reynolds, a vocational rehabilitation consultant,
testified that his job was to assist an injured individual
and return them to an appropriate employment. He said he
reviewed the medical records. He indicated that he was
contacted by defendants' attorney and that he was requested
to assist the claimant in trying to get the appropriate
employment with either defendant employer or another
company.

Page 5

Mr. Reynolds said that an appointment was set up for
October 28, 1992, with claimant at her attorney's office and
that he, claimant and her attorney were all present along
with claimant's husband. He said claimant was cooperative
and he had obtained the information as to claimant's final
limitations, her vocational and education history. He said
he gave claimant a survey to complete so as to find
claimant's vocational interest.

He said a second meeting was set up around December 4,
1992. Mr Reynolds said he had the results of the career
assessment and inventory identifying jobs within claimant's
limitations and that he was trying to find jobs for
claimant's interest. He said claimant was cooperative at
the second meeting.

Mr. Reynolds then had a third contact with the claimant
around December 22, 1992, in which he called the claimant
and was told by claimant's husband to call her attorney, Mr.
Woodward. Mr. Reynolds said he was told by claimant's
attorney to suspend work with the claimant and that there
was no job she could do and that he would produce medical
records to show that.

Mr. Reynolds indicated that he then met with Mr.
Vander-Woude to see if a job was available within defendant
employer for which claimant was capable of performing. Mr.
Reynolds said the employer was very cooperative even though
the claimant wasn't going to cooperate. The laundry aide
job was identified and Mr. Reynolds said he observed the job
and determined how it could be handled. Mr. Reynolds said
he heard Mr. Vander-Woude testify at the hearing and the
testimony is correct as he knew it. Mr. Reynolds proceeded
to send a job description to Rodney E. Johnson, M.D., and a
Dr. McGuire. Mr. Reynolds said these two doctors approved.
He also sent it to Tom Bower, a physical therapist, and he
okayed it. Mr. Reynolds said since a job was offered to
claimant, she did not go to work or contact defendant
employer, or himself. Mr. Reynolds said he understands the
defendant employer is still ready to put claimant back to
work and that it would be for 24 hours a week at a minimum
wage of $4.65 per hour. Mr. Reynolds said that claimant
could sit or stand at this job and that either option is
available or both are available.

Mr. Reynolds referred to a December 23, 1992 letter
written by Mr. Reynolds to claimant's attorney (Defendants'
Exhibit B, page 88), in which Mr. Reynolds referred to the
fact that he is to suspend working with claimant because Mr.
Woodward did not believe there is a job she can perform and
she was going to forward additional medical reports to Mr.
Reynolds' attention to support claimant's position. Mr.
Reynolds said that he never did receive any medical records
or information from claimant or claimant's attorney that
would indicate claimant could not work.

Claimant then testified again on rebuttal and stated
that she recalled a meeting at her attorney's office with
Mr. Reynolds and that she was given the impression that she
wasn't as disabled as she said she was and that Mr. Reynolds

Page 6

gave the impression that claimant was exaggerating and felt
sorry for herself and was focusing on her pain and,
therefore, claimed she didn't have as much pain as she
thought.

Defendants' exhibit 1B, pages 46 through 95, and IE,
pages 102-104, is the rehabilitation consultants records,
notes and reports which support Mr. Reynold's testimony and
also supports Mr. Vander-Woude's testimony. Claimant was
and has continued to be offered a job and it appears this
job is within her restrictions and that she at least has not
attempted to try the job and cooperate with the defendant
employer to try to work into the job, and that for the most
part claimant's attorney has, as it appears from the
evidence, impeded and prevented the rehabilitation
consultant from proceeding any further in trying to help
this claimant find a job or to be become employed.

It is obvious that the claimant's conduct is also based
on claimant's exhibit 4 in which she is determined to be
totally disabled for social security purposes. As one
knows, the criteria for determining disability with social
security and workers' compensation is different in many
respects. Likewise, the undersigned realizes that it is
common that once one is on social security disability they
lose all incentives usually to try to obtain employment or
get back to work because of their losing their social
security benefits. This is even more common where we have
one making a small wage, minimum or slightly larger, and
whose work history would indicate that that would be the
type of job one would be most likely able to continue to
obtain. Many claimants feel that they can make as much or
live suitably on the welfare system rather than attempt to
work for wages that is minimum but is in accordance with
their capabilities. In this particular case, it looks like
claimant's capabilities are even more based on her school
experience and the ability to get good grades but it looks
like claimant now has put that aside and resting on hoping
to receive weekly or monthly payments from as many sources
as possible.

In looking at the evidence concerning claimant's
alleged May 7, 1990 injury, the undersigned finds nothing as
to showing claimant incurred an injury that arose out of and
in the course of her employment nor has there been any
medical evidence showing any causal connection as to that
alleged injury and complaints to which claimant alleges
today or disabilities which she claims exists. Other than
claimant's testimony and some reference in some medical
after claimant's alleged injury of January 27, 1991, there
are no reports dated prior to January 27, 1991, at which
time claimant alleges an injury occurred at work to her
back.

The claimant sets out as an issue a desire to have the
$650 bill of Dr. Kelley paid which was incurred for an
independent medical examination in reference to the May 7,
1990 alleged injury. The undersigned sees no impairment
determined as to that injury that is specifically in
reference thereto. Claimant's exhibit 3 is a bill from Dr.

Page 7

Kelley for an independent medical examination for $600 and
not $650, and the date of services rendered is September 10,
1990. On this exhibit there is no reference to any
particular accident that might have been pertinent thereto.
The undersigned is going to consider that in reference to
claimant's January 27, 1991 injury and deny claimant's
reimbursement for the same or having the same paid in
reference to the May 7, 1990 alleged injury.

Claimant's exhibit 1A, pages 2 and 3, is radiology
reports concerning the claimant dated April 15, 1991. Said
reports note severe degenerative facet arthropathy for the
patient's age noted at L4-L5 and L5-7 levels contributing to
foraminal narrowing at the latter level. Said reports
indicate a moderately advanced disc degeneration at those
levels for the patient's age. There was additional
degeneration noted in L3-L4 discs. (Cl. Ex. 1A, pp. 4 and 5)

On July 23, 1993, Rodney E. Johnson, M.D., wrote a
letter to defendants' attorney indicating that defendant
attorney's letter of July 14, 1993 actually reflected the
doctor's opinion of claimant's complaints. The doctors'
opinion thus reflected that he felt that claimant's elbow
and hand complaints which involved the cubital tunnel and
the ulnar neuropathy was causally related to any work
injury or work incident. He also opined that as to
claimant's upper extremity/shoulder problems, he felt that
any permanent impairment is in the arm or extremity and does
not involve the body as a whole. The doctor confirmed the
last time he saw the claimant was on June 10, 1992, at which
time she was to return on an as-needed basis. He encouraged
her to work and be productive and placed a no lifting over 5
or 10 pounds overhead restriction right side only. She was
also to avoid repetitious pushing and pulling on the right
side such as vacuuming. He did permit her to go back to
work and do nurse's aide work which would include making
beds, feeding patients, handling medication, moving trays,
etc.

Dr. Johnson's August 13, 1993 letter indicated he
reviewed the job description that was supplied to him and he
believed that claimant should be able to do the work without
difficulty. This description was reflected in the
rehabilitation consultant's records that have previously
been referred to. (Def. Ex. 1B)

Thomas W. Bower, a physical therapist, on September 9,
1993 also opined that the position of laundry aide would
appear to be suitable for the claimant based on the
estimated functional capacities which he had done on
claimant. He also indicated that claimant showed submaximal
effort and that claimant was not disabled as perhaps she may
be attempting to convey.

Mr. Bower's May 6, 1993 report indicated claimant had a
9 percent impairment to the whole body regarding her back
condition but indicated there was a preexisting degenerative
disc disease. He was unable to apportion out what might
have been preexisting but took a theoretical position that
is taken by some that there would be 50 percent apportioned

Page 8

out. He also again indicated the evaluation was clearly
invalidated by claimant's submaximal effort and symptoms
manifestations tendencies and he questioned the restrictions
placed at that time because of that. He also opined that
claimant had a 7 percent impairment given to the upper
extremity because of her impingement problems and he did not
believe claimant's injury to the right upper extremity
extended into the body as a whole.

The medical evidence or the reports are confusing in
that they do not specifically refer to an injury date. One
does not know from the May 6, 1993 letter whether Mr. Bower
is referring to the effects of a January 27, 1991 injury or
a May 7, 1990 injury. One can help resolve this by
referring to Mr. Bower's May 20, 1992 letter in which he
referred to the fact that he indicated claimant had both
injuries to her lower back and lower shoulder.

Mr. Bower on more than one occasion refers to the fact
that claimant's physical findings appear to be completely
disproportioned to the subjective complaints. There appears
to be a definite symptoms magnifier situation here. In
looking at the file 1013393 in regards to the alleged May 7,
1990 injury, claimant was alleging a neck, shoulder, wrist
and elbow injury, whereas in file 975093, she was alleging a
lower back injury on January 27, 1991.

Defendants' exhibit 1A, pages 30 through 34, is letters
and reports concerning the evaluation of claimant by Daniel
J. McGuire, M.D. From his report, it appears he was having
difficulty concerning time sequences in claimant's medical
history. He felt back in the summer of 1991 that claimant
should attempt to work. He assigned a maximum of 5 percent
permanent impairment on claimant based on subjective
complaints. He also noted claimant had spondylolisthesis as
others noted which was preexisting and didn't rate it. As
mentioned earlier, he was confused as to when claimant's
shoulder problems began or at what alleged injury date they
occurred. The undersigned had that same problem in looking
at the record.

Defendants' exhibit 1A, pages 35 through 42, is the
reports or records in which Dr. Kelley was involved
concerning the treatment or evaluation of claimant. He is a
partner with the same professional medical company as Dr.
McGuire. Dr. Kelley in his history mentions both the
January 1991 and the May 1990 alleged injuries but he does
not causally connect any problems claimant may have with her
right shoulder including any impingement syndrome or
impairment to a May 1990 injury. He only indicates that
claimant's condition may have developed after an injury to
the right arm in May of 1990 and he opined that she has a 15
percent impairment of the right upper extremity using the
AMA Guides to the Evaluation of Permanent Impairment. It
also refers to claimant's preexisting Grade I
spondylolisthesis. (Def. Ex. 1A, p. 41) The doctor then in
his report used the combined charts to reach a body as a
whole impairment combining both the right shoulder injury
and the low back injury.

Page 9

As to claimant's alleged May 7, 1990 injury, the
undersigned finds that claimant has failed to carry her
burden to show that an injury to her wrist or elbow or right
shoulder arose out of and in the course of her employment
and that any such incident caused claimant to have her
currently alleged problems. We have claimant's very sparse
testimony concerning the alleged incident of May 7, 1990,
but the medical records mentioned little concerning that and
nothing prior to claimant's alleged January 27, 1991 injury.
The doctors, if they mentioned any May 7, 1990 event, do not
causally connect claimant's problems to any injury but also
they are strictly relying on claimant's history given to
them by the claimant. It appears in every instance that any
history concerning a May 1990 incident was given after
claimant sought treatment for her alleged January 27, 1991
injury. Defendants raised a question that they did not have
notice of claimant's May 7, 1990 injury. The undersigned
finds that defendants have sustained their burden to prove
this affirmative defense. There is no testimony from the
claimant that she notified anyone of said injury and as
indicated earlier, it does not show up in any medical or any
other documents in evidence that claimant was either getting
treatment or that the employer knew of any May 7, 1990
incident in a timely manner as provided under Iowa Code
section 85.23. The undersigned therefore finds that
claimant takes nothing as to her alleged May 7, 1990 injury,
represented by file 1013393.

As to claimant's alleged January 27, 1991 low back
injury, represented by file 975093, the parties did
stipulate that an injury did arise out of and in the course
of claimant's employment. There is dispute as to whether
claimant incurred any healing period or temporary total
disability or any permanent partial disability. The only
indication in the record that claimant was in a healing
period that ended is the letter defendants' attorney wrote
to Dr. Johnson, who is the treating specialist, asking him
to either affirm the contents of the letter or write his own
report. The doctor affirmed the fact that the last time he
saw the claimant was on June 10, 1992, when she was returned
to see him on an as-needed basis and he indicated that he
encouraged claimant to work and be productive and he set out
certain restrictions he would place on her. He also
understood that claimant was permitted to go back and do
nurses' aide work which included making beds, feeding
patients, handling medication, moving trays, etc.
Defendants had paid 71 weeks of healing period. Although
defendants take the position that they have overpaid any
healing period, and although the law is that voluntary
payment of healing period or benefits is not to be held
against the defendants, it would appear from the evidence
and page 7 of defendants' exhibit 1A, that claimant's
healing period was January 27, 1991 through June 10, 1992.

The undersigned arrives at a total of 71.286 weeks of
healing period. The undersigned finds that this healing
period was caused by claimant's January 27, 1991 low back
injury.

Claimant has had permanent impairment ratings on his

Page 10

low back injury of 5 percent up to 9 percent, and in each of
those cases there is reference to claimant's preexisting
degenerative disc condition and spondylolisthesis, and in
none of these cases do the doctors mention whether such
preexisting condition was aggravated or not but it appears
from the record that claimant was not being bothered by
these conditions or at least being treated for any of these
preexisting conditions until she actually had her injury on
January 27, 1991. The doctors do not address what is
obvious to the experience of this agency that one can have
rather severe degenerative, arthritic or spondylolisthesis
conditions and have had no trouble with them until a back
injury occurred. It is also obvious that such degenerative
arthritic conditions are not caused by an injury and that it
is something that builds up over a period of time and
increases with age. As we know, the defendants take
claimant as she is with any preexisting situations and in
this case the undersigned finds that the preexisting
conditions of claimant were latent and were not active until
claimant's January 27, 1991 injury.

It is also apparent by the medical reports that various
tests for determining impairment or the extent of impairment
are somewhat invalidated by the medical provider's
determination that claimant was either performing
submaximally or is a symptoms magnifier.

The claimant has no motivation to find work and it
would appear any motivation she may have had has been
considered to be sedated by the fact that social security
has determined her to be totally disabled. Of course,
social security has a different criteria in determining
disability in many respects than the determination of
industrial disability or total permanent disability under
the workers' compensation law. There is no medical evidence
that points to the fact that claimant is totally disabled or
isn't able to go back to work on at least some light duty or
at least try to go back to work. The defendant employer has
been accommodating and has a job currently open to the
claimant which has been opened for the claimant for over a
year and claimant has chosen not to attempt to work. The
overwhelming medical evidence shows that the job description
given by the employer and passed through the doctors would
indicate that claimant is able to perform the work so
described.

The undersigned is also concerned by the evidence in
the record and the testimony of the rehabilitation
consultant of the claimant's attorney subduing, preventing
or advising claimant not to cooperate and basically not
attempting to go back to work. It appears the
rehabilitation consultant provided for by the employer has
sincerely attempted to work with the claimant and get her
back to work, and that he has been able to work with his
client, defendant employer, who has cooperated in trying to
get this claimant back to work. The undersigned finds that
claimant's attorney has done the claimant a disfavor in this
regard and that claimant, herself, has hurt her case by not
attempting to go back to work. Claimant cannot expect to be

Page 11

free from pain. She has a permanent impairment that the
undersigned has found in his findings and with that
impairment, she still can be expected to work. The
undersigned finds that claimant has no motivation to work.
The longer she convinces herself and others convince her
that she cannot work or that she has pain which she is
magnifying in her own mind and as long as she is out of the
job market, the greater the claimant will feel sorry for
herself.

The claimant desires the bill of Dr. Kelley in the
amount of $650 be paid by the defendants. In looking at
claimant's exhibit 3 it appears that the independent medical
examination was $600 and not $650. It appears that this
medical exam took place after there had been prior
impairment determinations made by defendants' authorized
doctors, namely, Dr. Johnson, and said same letter was
signed by Thomas Bower, the physical therapist. (Def. Ex.
1A, pp. 12, 13, 14) The undersigned finds that defendants
shall pay the bill of Dr. Kelley for the independent medical
examination which is reflected on claimant's exhibit 3 and
in the amount of $600. The undersigned is presuming the
$165 shown thereon as to x-rays for the spine and shoulder
is not in dispute as there is no reflection of those being
in dispute on the hearing report.

Taking into consideration claimant's age; intelligence;
medical and work history before and after her January 27,
1991 injury; her work experience; length of healing period;
location and severity of her injury; her motivation or lack
thereof; her education; functional impairment; and the
employer's willingness and effort to accommodate claimant
and provide a job for her, the undersigned finds claimant
has a 20 percent industrial disability.

CONCLUSIONS OF LAW

It is concluded that:

Claimant has the burden of proving by a preponderance
of the evidence that she received an injury on May 5, 1990,
which arose out of and in the course of her employment.
McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa
1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154
N.W.2d 128 (1967).

The claimant has the burden of proving by a
preponderance of the evidence that the injuries of May 7,
1990 and/or January 27, 1991, are causally related to the
disability on which she now bases her claim. Bodish v.
Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl
v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A
possibility is insufficient; a probability is necessary.
Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691,
73 N.W.2d 732 (1955). The question of causal connection is
essentially within the domain of expert testimony. Bradshaw
v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167
(1960).

However, expert medical evidence must be considered

Page 12

with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman v. Central Telephone
Co., 261 Iowa 352, 154 N.W.2d 128 (1967).

While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, the mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900,
908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a
preexisting condition or disability that is aggravated,
accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815
(1962).

The Iowa Supreme Court cites, apparently with approval,
the C.J.S. statement that the aggravation should be material
if it is to be compensable. Yeager v. Firestone Tire &
Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S.
Workmen's Compensation sec. 555(17)a.

Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).

A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.

Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
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

Page 13

result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.

There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fCo. v. Liddy, 207 N.W.2d 27 (Iowa
1973); Norland v. Ides, 412 N.W.2d 904 (Iowa 1987).

Iowa Code section 85.23 provides:

Unless the employer or the employer's
representative shall have actual knowledge of the
occurrence of an injury received within ninety
days from the date of the occurrence of the
injury, or unless the employee or someone on the
employee's behalf or a dependent or someone on the
dependent's behalf shall give notice thereof to
the employer within ninety days from the date of
the occurrence of the injury no compensation shall
be allowed.

It is further concluded:

Page 14

As to the alleged May 7, 1990 injury, file No. 1013393,
it is concluded that claimant did not carry her burden to
show that an injury arose out of and in the course of her
employment on May 7, 1990, and claimant did not carry her
burden to show that said alleged injury caused claimant her
impairment or disability to her wrist, hand, arm or
shoulder.

Claimant did not give timely notice under the
provisions of Iowa Code section 85.23.

Claimant is not entitled to a reimbursement or have a
bill from Dr. Kelley in the amount of $650 paid which was
allegedly for an independent medical examination.

As to the January 27, 1991 injury, file No. 975093, it
is concluded that claimant incurred an impairment which was
caused by her work injury to her lower back on January 27,
1991, and that this work injury caused claimant to incur a
20 percent industrial disability.

Claimant incurred a healing period beginning January
27, 1991 to and including June 10, 1992, involving 71.286
weeks at the weekly rate of $90.74.

Claimant's preexisting condition to her back involving
degenerative disc disease and spondylolisthesis was
materially and substantially aggravated, heightened and
lighted up by claimant's January 27, 1991 work injury, and
defendants failed to carry their burden to show that any
preexisting impairment existed which could be apportioned
out.

Defendants are to pay the $600 bill of Dr. Kelley for
an independent medical exam.

ORDER

THEREFORE, it is ordered:

Regarding the May 7, 1990 injury (File NO. 1013393)

Claimant takes nothing.

Claimant to pay the costs.

Regarding the January 27, 1991 injury (File No.
975093):

That defendants shall pay unto claimant healing period
benefits at the rate of ninety and 74/100 dollars ($90.74)
for the period of January 27, 1991 to and including June 10,
1992, involving seventy-one point two eight six (71.286)
weeks.

That defendants shall pay unto claimant one hundred
(100) weeks of permanent partial disability benefits at the
rate of ninety and 74/100 dollars ($90.74) per week
beginning June 11, 1991.

Page 15

That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid. Defendants have paid
seventy-one (71) weeks of healing period and forty-eight
(48) weeks of permanent partial disability benefits a the
rate of ninety and 74/100 dollars ($90.74).

That defendants are to pay the six hundred dollar
($600) bill of Dr. Kelley.

That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.

That defendants shall pay the costs of these actions,
pursuant to rule 343 IAC 4.33.

That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.

Signed and filed this ____ day of December, 1993.

______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER

Copies to:

Mr Garry Woodward
Attorney at Law
700 Walnut St Ste 203
Des Moines IA 50309

Mr E J Kelly
Attorney at Law
2700 Grand Ave Ste 111
Des Moines IA 50312

5-1100; 5-2800
5-1108; 5-1803
Filed December 14, 1993
Bernard J. O'Malley

As to case number 1013393:

5-1100; 5-2800
Found claimant did not incur an injury that arose out of and
in the course of her employment and also claimant did not
give timely notice.

As to case number 975093:

5-1108; 5-1803
Found claimant suffered an injury that arose out of and in
the course of her employment that caused claimant to incur a
healing period and a 20% industrial disability .

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________

BRENDA CASILLAS,

Claimant,

vs.
File No. 975164
PARKVIEW GARDENS CARE CENTER,
A P P E A L
Employer,
D E C I S I O N
and
A N D R U L I N G
WAUSAU INSURANCE COMPANY,

Insurance Carrier,
Defendants.
____________________________________________________________

RULING ON MOTION FOR SANCTIONS
The record in this matter shows the following. On November
24, 1993 John E. Behnke (hereinafter Behnke), pro se, filed
a notice of appeal of the ruling of a deputy industrial
commissioner filed November 9, 1993 which has sustained
defendant's motion to dismiss the petition filed by Behnke.
On February 4, 1994 Parkview Gardens Care Center, Employer,
and Wausau Insurance Companies, insurance carrier,
(defendants) filed a motion for sanctions requesting that
Behnke's appeal be dismissed. On March 3, 1995 Behnke filed
a resistance to defendants' motion for sanctions.
Defendants' motion is considered.
Rule 343 IAC 4.28(1) provides:

Appellant shall serve its brief within fifty days after
the date on which notice of appeal was filed, or within
twenty days after filing of the hearing transcript,
whichever date is later. Appellee shall serve its brief
within twenty days after service of the brief of appellant.
If appellant serves a reply brief, it shall be done within
ten days after service of appellee's brief.

There has been no hearing in this matter and the filing of
transcript is not applicable. Therefore, Behnke's appeal
brief, as appellant, was to be served within 50 days after
the date of the notice of appeal. Behnke has not done so.
Failure to timely serve and file an appeal brief is not
grounds for dismissal of an appeal. However, a untimely
brief that is objected to will not be considered.
Therefore, defendants' motion to dismiss is overruled but
this matter will be considered without briefs.
issues on appeal

Page 2

The issue on appeal is whether defendants' motion to dismiss
Behnke's petition should be granted.

FINDINGS OF FACT

On August 10, 1992 Behnke notified defendants' counsel that
because of Behnke's suspension he could not represent Brenda
Casillas (hereinafter claimant) in this case. On February
1, 1993 this agency approved a compromise special case
settlement in which claimant was paid $2,910.70 for all
workers' compensation liability for an injury of August 17,
1990. The attorney for the claimant in the compromise
special case settlement was Sharon McMullin, who is not
associated with Behnke.
On October 13, 1993 Behnke, as petitioner filed an original
notice and petition stating the dispute was an attorney fee
dispute. The injury date on the petition was August 17,
1990. Also filed on October 13, 1993 was a request for
allowance of attorney lien signed by Behnke but not signed
by claimant.

On October 25, 1993 defendants filed a pre-answer motion to
dismiss. On October 27, 1993 claimant filed an answer to
notice and request for allowance of attorney lien.
Iowa Code section 86.39 provides:

All fees or claims for legal, medical, hospital, and
burial services rendered under this chapter and chapters 85,
85A, 85B, and 87 are subject to the approval of the
industrial commissioner, and no lien for such service is
enforceable without the approval of the amount of the lien
by the industrial commissioner. For services rendered in
the district court and appellate courts, the attorney's fee
is subject to the approval of a judge of the district court.

No lien for legal services is enforceable without the
approval of the amount of the lien by the industrial
commissioner.
"In ordinary use a lien is a charge upon property for the
payment of a specific obligation that is independent of the
lien." Federal Land Bank of Omaha v. Boese, 373 N.W.2d 118,
120 (Iowa 1985). "A lien is incident to and dependent upon
the right ... to recover but the right to recover ... is not
dependent upon the lien.... [F]ailure of the lien does not
prevent recovery on the obligation ... since it may exist
without the security the lien provides." Armour-Dial, Inc.
v. Lodge & Shipley Co., 334 N.W.2d 142, 145 (Iowa 1983).
In this case Behnke has requested, among other things that
will be discussed below, that a lien be approved. However,
in making payment to claimant pursuant to the special case
settlement defendants have fulfilled their obligation to
claimant. Defendants' obligation to pay claimant was
satisfied prior to the time Behnke filed his request to have
a lien approved. Because defendants have no further
obligation to pay claimant, Behnke's request for attorney
lien against defendants is inappropriate. Defendants'
motion to dismiss the petition as it relates to the
defendants should be and is hereby granted. Also, Behnke's

Page 3

request for attorney lien is not appropriate against these
defendants.

In this case, because claimant was the injured employee who
has already received a special case settlement and because
there is no present indication that Behnke's entitlement to
payment of legal fees is not secure, a lien against any
proceeds of claimant is also not appropriate.

Although Behnke's pleadings are not particularly clear, it
can be reasonably concluded that he is also seeking a
determination of the appropriate amount of legal fees. This
dispute would be one between the claimant and Behnke. This
is a dispute that is within the jurisdiction of this agency
pursuant to Iowa Code section 86.39 and rule 343 IAC 4.1(9).
This agency has jurisdiction to determine the correct amount
of legal fees, if any. That portion of Behnke's petition
seeking a determination of legal fees in a dispute with
claimant should not be dismissed. Therefore, this matter
should be remanded to the regular hearing assignment for
purposes of disposing of this matter by means of an
evidentiary hearing. This appeal decision makes no
determination on the Behnke's entitlement to nor the amount
of appropriate legal fees.
WHEREFORE, the decision of the deputy is affirmed in part
and reversed in part.

ORDER

THEREFORE, it is ordered:
That Behnke's petition against Parkview Garden Care Center,
employer, and Wausau Insurance Companies, insurance carrier,
is dismissed.
That Behnke's request for lien is not approved.
That the matter between Behnke and claimant for
determination of legal fees shall be remanded to the regular
hearing assignment for disposition.
That Behnke shall pay all costs of this matter.
Signed and filed this ____ day of March, 1994.

________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER

Copies To:

Mr. John E. Behnke
Box F
Parkersburg, Iowa 50665

Mr. Richard Betterton
Attorney at Law
P.O. Box 2787
Waterloo, Iowa 50704-2787

Page 4

Ms. Valerie A. Landis
Attorney at Law
2700 Grand Ave., Ste 111
Des Moines, Iowa 50312

1000
Filed March 17, 1994
Byron K. Orton

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________

BRENDA CASILLAS,

Claimant,

vs.
File No. 975164
PARKVIEW GARDENS CARE CENTER,
A P P E A L
Employer,
D E C I S I O N
and
A N D R U L I N G
WAUSAU INSURANCE COMPANY,

Insurance Carrier,
Defendants.
____________________________________________________________

1000
A request for attorney lien was denied. The request for
lien was filed by the employee's previous attorney after a
special case settlement had been approved. The employee was
represented by a different attorney in the application for
special case settlement. The employer and insurance
carrier's motion to dismiss the attorney lien request was
granted.

The matter was remanded to the regular hearing assignment to
determine the correct amount of legal fees. That dispute
would be between the employee and the employee's attorney.

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________

BRENDA CASILLAS,

Claimant,

vs.
File No. 975164
PARKVIEW GARDENS CARE,
CENTER ARBITRATION DECISION

Employer, (ATTORNEY FEE DISPUTE)

and

WAUSAU INSURANCE COMPANY,

Insurance Carrier,
Defendants.
________________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on March 21, 1995, at Waterloo, Iowa.
This is a proceeding in which the former attorney for the claimant, who
was suspended by the Iowa State Bar Association during the pending of
this case, seeks attorney fees from the claimant's successor attorney
pursuant to an award settlement which successor attorney obtained for
the claimant. The record in the proceeding consists of the testimony
of Richard Betterton, attorney and member of the law firm that was
successor attorney for the claimant; John E. Behnke, the prior attorney
for the claimant and attorney Behnke's exhibits A and B.
ISSUES
The issue for resolution is: Whether John Behnke is entitled to any
additional attorney fees.
FINDINGS OF FACT
The undersigned deputy having heard the testimony and considered all
the evidence finds that the dispute herein is strictly between John
Behnke, former attorney for the claimant, who was suspended by the Iowa
Bar Association and therefore, could no longer practice law and handle
this case, and claimant's successor attorney from the lawfirm of
Johnston, Potterfield, & Nathanson, P.C.
Mr. Behnke stated that he felt he was entitled to one-third of the
settlement that was obtained by the claimant in the amount of
$2,910.70. This latter amount was in addition to any money previously
received by the claimant or through Mr. Behnke on behalf of the
claimant. The $2,910.70 was received pursuant to an application for
approval of a compromised special case settlement, which was approved
by this agency and which application has the signatures of attorneys
and parties not including John Behnke. Mr. Behnke presented his
exhibit A which had eight hours itemized in which he wanted $80.00 per
hour totalling $640.00. He also had some expenses set out and also
wanted one-third of an $854.64 check allegedly received by the
claimant.
The undersigned took official notice of the total file. In the file
there is a request for allowance of attorney fees which is not signed
by the claimant and never approved.
At the time the special case compromise was obtained by the successor

attorneys, Mr. Behnke was not authorized to practice law and was under
suspension. Mr. Behnke offered his exhibit B, which he contends
entitles him to attorney fees earned or incurred before his suspension.
Mr. Behnke was receiving one-third of those amounts received by the
claimant during the time he was handling this case and it would appear
to the undersigned that Mr. Behnke got paid adequately for the services
he rendered. Mr. Behnke was not prepared to relate what he had
received to date or the amount of payments he received on behalf of the
claimant in which he took one-third. From his statement, it appears
that one of his problems of being suspended was his poor accounting or
bookkeeping and this problem was further evident in his presenting his
case herein.
It was solely Mr. Behnke's fault that he was suspended and this caused
additional problems for the claimant in trying to get her case
litigated. She was required to obtain new counsel.
The undersigned believes the record speaks for itself. The undersigned
finds that Mr. Behnke is not entitled to any additional attorney fees.
It was undisputed that he did not seek, nor was he entitled to any fees
from the claimant herself. Whatever she may have owed has been paid to
him during the time he was representing her. He had withheld his fee
from the weekly payments she was getting during that time. The
undersigned therefore finds that Mr. Behnke takes nothing from this
proceeding and has been paid in full for any and all moneys due him in
regard to any representation he did for or any participation he did in
this case herein including any expenses he incurred on behalf of
claimant.
CONCLUSIONS OF LAW
It is concluded that claimant takes nothing from these proceedings.
ORDER
THEREFORE IT IS ORDERED:
John Behnke is entitled to no additional fees, compensation or expense
reimbursement in this matter.
John Behnke is to pay the costs in this action.
Signed and filed this _____ day of March, 1995.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Richard Betterton
Attorney at Law
PO Box 2787
Waterloo, Iowa 50704-2787
Mr. John E. Behnke
Attorney at Law
Box F
Parkersburg, Iowa 50665
5-1000
Filed March 30, 1995
BERNARD J. O'MALLEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________

BRENDA CASILLAS,

Claimant,

vs.
File No. 975164
PARKVIEW GARDENS CARE,
CENTER ARBITRATION DECISION

Employer, (ATTORNEY FEE DISPUTE)

and

WAUSAU INSURANCE COMPANY,

Insurance Carrier,
Defendants.
________________________________________________________________
5-1000
Former claimant's attorney awarded no additional attorney fees.