2900
Filed August 5, 1994
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RODNEY SCOTT,
File No. 976675
Claimant,
D E C I S I O N
vs.
O N
THOMS-PROESTLER,
A L T E R N A T E
Employer,
M E D I C A L
and
C A R E
CONTINENTAL WESTERN,
Insurance Carrier,
Defendants.
___________________________________________________________
2900
Alternate medical care was not awarded to claimant.
Claimant was dilatory in his request for a local physician.
Defendants had requested input from claimant. Claimant
responded nearly one year later and only after he had
selected and treated with physicians of his own choosing.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RODNEY SCOTT,
File No. 976675
Claimant,
D E C I S I O N
vs.
O N
THOMS-PROESTLER,
A L T E R N A T E
Employer,
M E D I C A L
and
C A R E
CONTINENTAL WESTERN,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
Claimant filed an original notice and petition concerning an
application for alternate medical care pursuant to section 85.27
of the Iowa Code and rule 343 IAC 4.48. The petition was filed
on July 25, 1994. In his petition claimant requested:
5. Claimant is dissatisfied with the care provided and has
communicated that dissatisfaction to employer. Reason for
dissatisfaction:
Claimant sought treatment with Dr. Leth of the Pain Clinic at
Mercy Hospital and has had significant improvement. Claimant is
very happy with his treatment with Dr. Leth.
On July 26, 1994, Byron K. Orton, Industrial Commissioner, filed
a delegation of authority. In his order Commissioner Orton
provided that:
Pursuant to Iowa Code section 86.3 the deputy industrial
commissioner presiding at the contested case in this application
for alternate medical care is hereby delegated the authority to
issue the final agency decision on the application. There will
be no right of intra-agency appeal on this decision. See
Continental Telephone Co. v. Colton, 348 N.W.2d 623 (Iowa 1984)
and LeaseAmerica Corp. v. Iowa Dept. of Revenue, 333 N.W.2d 847
(Iowa 1983).
....
The presiding deputy industrial commissioner's decision in
this matter shall be the final agency decision. See Iowa Code
section 17A.15(1).
Also on July 26, 1994, the hearing administrator assigned the
matter for a telephone hearing. The notice for hearing was
mailed to the parties on the same date.
Defendants filed a written answer. Bill Bribriesco appeared on
Page 2
behalf of his client, Rodney Scott. Jeff Margolin appeared on
behalf of defendants.
The hearing was recorded electronically by audio means. The
record consists of the testimony of claimant. The record also
consists of the testimony of Patrick Rohrs, claims
representative. Finally the record is comprised of claimant's
exhibits A-C and defendants' exhibits 1-8.
ISSUE
The sole issue presented for resolution is whether claimant is
entitled to alternate medical care as provided by section 85.27
of the Iowa Code.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The deputy, having heard the testimony and considered all the
evidence, makes the following findings of fact and conclusions of
law:
Claimant and defendants entered into a petition for commutation
of benefits with respect to a work injury which claimant
sustained on August 28, 1990. The commutation provided that
workers' compensation benefits would be paid in full with the
exception of:
11. That the claimant's entitlement to medical services
(excluding psychiatric, psychological, or related services)
provided for under Iowa Code Section 85.27, which are reasonable
and causally related to the Claimant's injury of August 28, 1990,
will continue to remain open after approval of this commutation
by the Industrial Commissioner.
The petition for commutation was approved by the industrial
commissioner on April 26, 1993. Both prior to and subsequent to
the approval, defendants designated James Weinstein, M.D., and
Ernest M. Found, M.D., both of the Spine Diagnostic and Treatment
Center at the University of Iowa Hospitals and Clinics as the
authorized treating physicians.
As of April 15, 1993, Dr. Weinstein prepared a rehabilitation
evaluation remeasurement. In his report the authorized treating
physician determined:
At this point in time we continue to believe that Mr. Scott
has chronic back pain and that the pain that he is having at this
time is not doing any specific harm or damage and that he must
continue to work very hard on an aggressive exercise approach to
continue to work on flexion and strengthening of his lower back.
In terms of specific recommendations, we feel at this time
that Mr. Scott should be given the option of seeing physicians
locally in the Quad Cities. He states it is very difficult for
him to come 60 miles for a simple physician's appointment so we
would certainly agree with this.
We would be more than happy to see Mr. Scott at any time in
the future at his request.
(Exhibit C)
On April 27, 1993, defendants' attorney, Jeff M. Margolin, sent a
letter to claimant's attorney relative to the selection of a
local authorized treating physician. Mr. Margolin wrote:
Since our settlement allows for payment of future medical
Page 3
expenses under section 85.26 which are reasonable and causally
related to your client's August 28, 1990, injury, we need to
designate an authorized treating physician. Along those lines,
we are continuing to pick Dr. Ernest Found and Ted Wernimont at
the Spine Diagnostic and Treatment Center in Iowa City as the
sole authorized health-care providers to treat or examine Mr.
Scott for symptoms related to his injury. Since this does
involve some travel on the part of the claimant, we would be
interested in reviewing the names of any doctors you may have in
mind in the Quad Cities area for this particular purpose. Please
feel free to submit the names of any such physicians for our
review and consideration. We look forward to hearing from you.
(Ex. 7)
No immediate response was made by either claimant or his
attorney. For nearly one year there was no correspondence
between the respective parties.
Claimant testified he was continuing to experience pain in his
back. As a consequence, he perused the "yellow pages" for the
name of a physician. His fingers did the walking and he found
the name of a general practitioner, Dr. Nelson (first name
unknown). Claimant treated with Dr. Nelson for an unspecified
time. She prescribed Vicodin for him and she made a referral to
Dr. Leth (first name unknown), Director of the Pain Center at
Mercy Hospital in Davenport, Iowa. Dr. Leth is an
anethesiologist. Claimant also treated with a Dr. Monta Skaufle
but this Deputy has no knowledge as to the nature of the
treatment.
Claimant saw Dr. Leth for the first time on March 24, 1994. Dr.
Leth treated claimant with an epidural block. The physician also
prescribed some medication.
The claim file, including claimant's medical expenses, had been
handled by the adjuster, Gary Tesdahl. However, in the spring of
1994, Mr. Tesdahl was transferred and the file was then assigned
to Patrick Rohrs. Mr. Rohrs testified at the hearing that he was
not very familiar with the file when some medical expenses and
prescription charges were presented to the insurance company for
payment. As a result, Mr. Rohrs paid some charges for Dr. Nelson
and the company also paid some prescription charges.
After the payment of the aforementioned medical bills, Mr. Rohrs
better familiarized himself with the file. His testimony
indicated he realized that Dr. Nelson and Dr. Leth were not
authorized treating physicians. As a consequence, Mr. Rohrs
denied payment of any subsequent medical expenses from Dr.
Nelson, or from Dr. Leth.
Because claimant's medical expenses were disallowed, he contacted
his attorney, Bill Bribriesco. On May 17, 1994 a letter was
forwarded to the attorney for defendants. Claimant's counsel
wrote:
Thank you for your letter dated May 12, 1994. We were under
the impression that Dr. Leth was designated as an authorized
treating physician for Rodney. If our understanding is
incorrect, please be advised that we wish Dr. Leth to be
Page 4
designated an authorized physician. Dr. Leth is local, and an
extremely competent doctor. Dr. Leth's specialty is
anesthesiology. Dr. Leth has been assisting Rodney in pain
management. We will be happy to obtain copies of Dr. Leth's
records and forward them to you if you so desire.
(Ex. A)
Jeff Margolin, attorney for defendants, sent a reply letter on
June 6, 1994. In his letter, Mr. Margolin wrote in relevant
portion:
I am in receipt of your correspondence dated May 17, 1994 to
Pat Rohrs at Continental Western Insurance Company. In my letter
to you of April 27, 1993, I indicated that Dr. Ernest Found at
the Spine Diagnostic and Treatment Center at the University of
Iowa Hospitals in Iowa City was the sole authorized treating
physician for Mr. Scott. As I recall, we never received a reply
from you as to the names of any doctors you wanted your client to
see that may have been closer to him in the Quad Cities area. As
a result, we consider as unauthorized your client's recent
medical treatment which he has received at Mercy Hospital in
Davenport. This also includes any treatment or office visits to
Dr. Monte Skaufle or Dr. Nelson. We will not pay for any charges
incurred by Mr. Scott for any of this medical treatment which we
consider unauthorized.
Please be advised that we will now consider Dr. Michael Cullen
as another authorized treating physician for Mr. Scott. Dr.
Michael Cullen's office is located at 1410 7th Street in Moline,
Illinois. If Mr. Scott is continuing to experience back
symptoms, he should contact Dr. Cullen's office to schedule an
office visit. We have already received approval from Dr. Cullen
that he would be willing to examine Mr. Scott if necessary.
(Ex. 5)
Attorney Bribriesco forwarded another letter to defendants'
attorney. The letter was dated June 13, 1994. In the letter
claimant's attorney again requested authorization for treatment
with Dr. Leth. The basis for the request was:
Please be advised that Rodney wishes to have Dr. Leth at the Pain
Clinic at Mercy Hospital, Davenport, Iowa, to be his authorized
doctor. Rodney has had significant improvement since he began
treating with Dr. Leth and Rodney is extremely happy with Dr.
Leth. As to Dr. Skaufle and Dr. Nelson, Rodney does not treat
with either of them. Please advise if this is acceptable, or if
we need to file an application with the Industrial Commissioner.
Defendant's attorney next replied by letter on June 15, 1994.
Defendants scheduled claimant with the authorized treating
physician, Dr. Cullen. An appointment was set for June 27, 1994
at 2:15 p.m.
Defendants' attorney forwarded another letter to claimant's
attorney on June 27, 1994. Mr. Margolin indicated in part:
This letter will confirm that on Friday, June 24, 1994 at
approximately 1:45 p.m. you called and notified me that your
client was going to be out of town and therefore unable to keep
Page 5
the appointment we had scheduled with Dr. Cullen for Monday, June
27th. I contacted Dr. Cullen's office and cancelled this exam
and have now rescheduled it for Monday, July 18, 1994 beginning
at 2:00 p.m. Once again, I am requesting your cooperation in
seeing that your client keeps this new appointment with Dr.
Cullen as scheduled.
Then on July 26, 1994, defendants' attorney again wrote a letter
to claimant's attorney. The letter stated:
I have been advised by Dr. Michael Cullen that Mr. Scott
failed to keep his scheduled appointment which was set for
Monday, July 18, 1994. You will recall in my letter to you of
June 27, 1994 I informed you that we had rescheduled this exam
with Dr. Cullen for this date. This is the second time that Mr.
Scott has now failed to keep a scheduled appointment with Dr.
Cullen. As you are aware, the only authorized treating
physicians for Mr. Scott are Dr. Ernest Found at the University
of Iowa Hospitals in Iowa City and Dr. Michael Cullen. We will
not pay for any medical charges, including prescription expenses,
which are not authorized by either or [sic] these two physicians.
If you have any further questions concerning our position in this
matter, please feel free to give me a call.
(Ex. 1)
During the hearing claimant testified that he first discussed
with his own attorney the names of potential local physicians.
Claimant testified that the conversation occurred on April 27,
1993. This date happened to be on the very same date that Mr.
Margolin drafted a letter requesting the names of acceptable
physicians in the Quad Cities. Nevertheless, despite claimant's
contention that he discussed the issue of a local physician with
his lawyer, his attorney did not forward any request to
defendants until nearly one year later. Claimant's input was
untimely.
Claimant was unable to attend the first appointment with Dr.
Cullen as claimant was vacationing in St. Louis. He was unable
to provide the dates of his trip, however. Claimant denied ever
knowing about the second scheduled appointment. Claimant was a
very poor historian.
Section 85.27 of the Iowa Code provides in relevant portion:
For purposes of this section, the employer is obliged to
furnish reasonable services and supplies to treat an injured
employee, and has the right to choose the care. The treatment
must be offered promptly and be reasonably suited to treat the
injury without undue inconvenience to the employee. If the
employee has reason to be dissatisfied with the care offered, the
employee should communicate the basis of such dissatisfaction to
the employer, in writing if requested, following which the
employer and the employee may agree to alternate care reasonably
suited to treat the injury. If the employer and employee cannot
agree on such alternate care, the commissioner may, upon
application and reasonable proofs of the necessity therefor,
allow and order other care....
The employer has the right to choose the provider of care, except
Page 6
where the employer has denied liability for the injury. Section
85.27; Holbert v. Townsend Engineering Co., Thirty-second
Biennial Report of the Industrial Commissioner 78
(Review-Reopening 1975).
In the case of Wright v. Super 8 Lodge of Des Moines, File No.
858615 (arbitration filed February 20, 1990), the deputy
industrial commissioner held that even when defendants are
entitled to choose the authorized treating physician, defendants
cannot interfere with the physician's professional judgment. The
authorized treating physician is best able to determine what
treatment modalities are best for a given condition.
In an appeal decision dealing with an application for alternate
medical care, the industrial commissioner affirmed the presiding
deputy industrial commissioner's denial of alternate medical
care. See Barry Long v. Robert's Dairy Company, File number
982297 (Appeal Decision, February 5, 1993). An application for
alternate medical care is not automatically sustained because a
claimant is dissatisfied with the care he has been receiving. In
Long, the deputy determined that mere dissatisfaction with the
medical care is not ample grounds for granting an application for
alternate medical care. Rather, the claimant must show that the
care was not offered promptly; was not reasonably suited to treat
the injury; or that the care was unduly inconvenient for
claimant.
In the instant case, the authorized treating physicians at the
Spine Diagnostic Treatment Center opined claimant would be better
served if he could treat with a physician in the Quad Cities.
Defendants acquiesced with this decision. As of April 27, 1993,
defendants invited input from claimant and his attorney with
respect to the selection of a local physician. Claimant
testified he discussed the issue with his lawyer on the exact
date the written request was made. Nevertheless, claimant and
his attorney did not communicate the requested input until
claimant had already treated with several other physicians. It
was nearly one year later that claimant's attorney provided to
defendants a request for alternate medical care. It is not
surprising that with such poor communication from claimant, the
defendants selected a local physician without the assistance of
claimant. In this deputy's opinion, defendants had more than
adequately cooperated with claimant.
Defendants have selected Dr. Cullen as the duly authorized
treating physician. They have set two appointments for claimant
with the treating doctor. For one reason or another, claimant
has neglected to appear for those appointments. Claimant
maintains the second appointment was not communicated to him. If
such is the case, then claimant and his lawyer need to work on
improving their attorney-client relationship. Again, in the
opinion of this deputy, defendants have attempted to accommodate
claimant. They have tried to select a physician who practices in
claimant's own geographical location. They have offered care in
a prompt fashion. It is claimant who has been dilatory in making
his request for alternate medical care. Unreasonable treatment
is not at issue. The evidence is quite the contrary. Claimant
Page 7
has failed to appear for treatment on two separate occasions.
Claimant has failed to prove by a preponderance of the evidence
that he is entitled to alternate medical care. Defendants have
designated Dr. Cullen as the authorized treating physician.
Defendants shall schedule another appointment for claimant with
Dr. Cullen. The appointment shall be scheduled as soon as
practicable but at least within thirty days of the filing of this
decision.
ORDER
THEREFORE, it is ordered:
The application for alternate medical care is denied in part with
respect to the treatment by Dr. Nelson and Dr. Leth. However,
defendants shall schedule an appointment with Dr. Cullen for
claimant.
Costs, if any, are assessed to claimant pursuant to rule 343 IAC
4.33.
Signed and filed this ____ day of August, 1994.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. William J. Bribriesco
Attorney at Law
2407 18th Street
STE 202
Davenport IA 52722
Mr. Jeff Margolin
Attorney at law
Terrace Center STE 111
2700 Grand Ave
Des Moines IA 50312
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
RONALD E SILVER, :
:
Claimant, :
:
vs. :
: File No. 976681
THE TIMMERMAN COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
WAUSAU INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Ronald
E. Silver, claimant, against The Timmerman Company,
employer, and Wausau Insurance Companies, insurance carrier,
defendants, to recover benefits under the Iowa Workers'
Compensation Act as a result of an alleged injury sustained
on June 14, 1989. This matter came on for hearing before
the undersigned deputy industrial commissioner on June 30,
1992, in Davenport, Iowa. The record was considered fully
submitted at the close of the hearing. The claimant was
present and testified. Also present and testifying was
Gerald Martin. Documentary evidence identified in the
record consists of joint exhibits 1 through 8 and claimant's
exhibits 3 and 4.
ISSUES
Pursuant to the prehearing report and order dated June
30, 1992, the parties have presented the following issues
for resolution:
1. Whether claimant sustained an injury on June 14,
1989, which arose out of and in the course of employment
with employer;
2. Whether the alleged injury is a cause of temporary
and permanent disability;
3. The extent of entitlement to weekly compensation
for permanent disability; and
4. Whether claimant is entitled to medical benefits
under Iowa Code section 85.27 and the reasonableness of such
benefits.
FINDINGS OF FACT
Page 2
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Claimant was born on September 5, 1946, and completed
the twelfth grade of school. He has a B.A. degree from the
University of Iowa and a J.D. from Drake Law School.
Claimant was a practicing attorney in the state of Iowa
until November 1986 when his license was revoked for
mishandling trust accounts.
On March 1, 1989, claimant commenced working for
employer. Employer manufactures floor products and claimant
was hired as a territorial salesman. He was terminated from
this position on April 15, 1990, for failure to fully
perform his job duties. From June 3, 1990 through August
1991, he worked as an insurance salesman. He quit this job
because of its extensive travel requirements. In June 1991
he commenced working for Ruhl and Ruhl Real Estate Company
as a real estate salesman. He is still employed in this
capacity. Claimant testified that his 1992 income to date
is $9200.
A review of the pertinent medical evidence of record
reveals that on April 25, 1985, claimant was seen in Mercy
Hospital emergency room after slipping and falling while
swinging a golf club. He presented with complaints of low
back pain, left buttock pain and numbness down the left leg.
A CT scan of the lumbar spine was performed. It showed a
herniated disc at L5-S1 on the left side. Claimant's
treating physician, Fred Green, D.O., referred him to John
E. Sinning, Jr., M.D., for evaluation. The record is silent
as to Dr. Sinning's evaluation at this time and whether any
further treatment was recommended (joint exhibits 1 & 6).
Claimant testified that on June 14, 1989, while driving
back from a contractors' meeting in Iowa City, Iowa, he had
to swerve his car in order to miss hitting a deer. He
testified that his car spun around 360 degrees and he
wrenched his back during this maneuver. He reported the
incident to Gerald Martin, his supervisor, the next day and
was told to set up a chiropractic appointment with Dennis
Stierwalt, D.C.. Dr. Stierwalt had treated claimant in the
past for various orthopedic problems.
The medical evidence indicates that claimant saw Dr.
Stierwalt on June 15, 1989. He presented with low back pain
and left leg tingling. When seen the next day, he ached
some but felt much better (ex. 7, page 4).
There is no indication in the record that Dr. Stierwalt
prescribed medication or a treatment program. He saw
claimant again on August 11, 1989. At this time, claimant
presented with complaints of left low back pain. He
indicated that one week prior he had been wrestling with his
dog (ex. 7, p. 4). Again, no medication or treatment was
prescribed. Claimant then saw Dr. Stierwalt on October 9,
1989, with complaints of left lumbar area pain after
refereeing a basketball game three days prior (ex. 7, p. 5).
Page 3
Dr. Green then referred claimant for an MRI lumbar
spine evaluation on October 17, 1989. The results revealed
degenerative disc disease at L4-5 and L5-S1 with small
herniation and L4-5 (jt. ex. 3).
Claimant continued to see Dr. Stierwalt for follow-up
evaluations on November 17, 30 and December 7, 1989;
February 27 and March 9, 1990 (ex. 7, p. 5).
On April 2, 1990, claimant presented to Dr. Green for
evaluation and request for referral to a neurosurgeon. His
notes state that "Patient has a long-standing history since
1985 from an old back injury where patient injured his back
while swinging a gold [sic] club. Has had CT scan which
showed ruptured disc of L5-S1. This is further personnified
[sic] by MRI." Claimant complained that his pain never
completely resolved. On examination, straight leg raising
was positive on the left with complaints of muscle weakness.
Dr. Green referred claimant to Byron Rovine, M.D., for
surgery consultation (ex. 1, p. 3).
Dr. Rovine admitted claimant to St. Luke's Hospital on
April 19, 1990. A myelography was performed which
demonstrated a large left and central filling defect at
L4-5. Intradural compression of the first sacral nerve root
could be seen as a result of this disc herniation. On April
20, 1990, a hemilaminotomy at L4-5 was carried out, with the
finding and removal of a large subligamen-tous disc
extrusion, the extruded portion of which was under the
lateral aspect of the dural sac, and compressing it.
Claimant was discharged on April 23, 1990, in good condition
(ex. 5).
Dr. Rovine saw claimant for a follow-up examination on
May 2, 1990. He reported that claimant was "Doing extremely
well. No leg pain." He also noted excellent range of
motion. He advised claimant, who at this time was already
walking five miles, to increase activity. On June 4, 1990,
Dr. Rovine again reported that claimant was "Doing well,"
and scheduled him for appointments on an as needed basis
(ex. 4, p. 1).
On May 31, 1991, claimant reported to Dr. Rovine for a
disability evaluation. Dr. Rovine assessed a permanent
partial impairment at 6 percent, based on 2 percent for loss
of flexion, 2 percent for loss of extension, and 1 percent
each for the mild motor and sensory deficits which persist
(ex. 8).
CONCLUSIONS OF LAW
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on June 14, 1989,
which arose out of and in the course of his employment.
McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa
1976); Musselman v. Central Telephone Co., 154 N.W.2d 128,
130 (Iowa 1967). The words "arising out of" have been
interpreted to refer to the cause and origin of the injury.
McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971);
Page 4
Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63,
65 (Iowa 1955). The words "in the course of" refer to the
time, place and circumstances of the injury. McClure, 188
N.W.2d at 287; Crowe, 68 N.W.2d at 65. An injury occurs in
the course of the employment when it is within the period of
employment at a place the employee may reasonably be, and
while the employee is doing work assigned by the employer or
something incidental to it. Cedar Rapids Community School
District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure
188 N.W.2d at 287; Musselman, 154 N.W.2d at 130.
The supreme court has defined a personal injury for the
purposes of workers' compensation cases. Almquist v.
Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this
case the court found that a personal injury, is an injury to
the body, the impairment of health, or a disease, not
excluded by the Workers Compensation Act, which comes about,
not through the natural building up and tearing down of the
human body, but because of a traumatic or other hurt or
damage to the health or body of an employee. The injury to
the human body must be something, whether an accident or
not, that acts extraneously to the natural processes of
nature, and thereby impairs the health, overcomes, injures,
interrupts, or destroys some function of the body, or
otherwise damages or injures a part or all of the body.
Claimant testified that on June 14, 1989, he was on his
way home from a contractors' meeting in Iowa City. As a
territorial salesman for employer, claimant was required to
furnish his own car, set his own route and establish his own
weekly work schedule. He had no set starting or ending
time.
The general rule is that, absent special circumstances,
an employee is not entitled to compensation for injuries
occurring off of the employer's premises on the way to and
from work. Under a separate rule which acts as an exception
to the "going and coming" rule, an employee's trip to and
from work is considered within the course of employment if
the employee is required, as a part of employment, to
provide a vehicle for use during the working day. Medical
Associates Clinic, P.C. v. First National Bank of Dubuque,
440 N.W.2d 374 (Iowa 1989).
Gerald Martin, administrative vice-president, testified
at the hearing. He stated he has no reason to doubt
claimant's recitation of the facts regarding the June 14,
1989, incident. He acknowledged that he was notified by
claimant on June 15, 1989, of the incident and he authorized
medical treatment with a physician of claimant's choice.
Claimant's version of the events on June 14, 1989, is
uncontroverted.
Therefore, claimant has met his burden of proof. He
has shown by a preponderance of the evidence that he
sustained a work-related injury on June 14, 1989.
The next issue to be determined is whether claimant's
injury caused temporary disability which required him to
take time off work for treatment.
Page 5
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).
While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, its mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76
N.W.2d 756 (1956). If the claimant had a preexisting
condition or disability that is materially aggravated,
accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962);
Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112
N.W.2d 299 (1961).
The record clearly indicates that claimant has a
history of back problems dating back to an injury on April
25, 1985. A CT scan taken on April 25, 1985, revealed a
herniated disc at L5-S1 on the left side. Claimant had one
chiropractic treatment on September 2, 1986, and no other
medical treatment until June 16, 1989, when he was given a
full spinal massage after wrenching his low back the day
before. He received the same type of treatment on August
11, 1989, after hurting his left low back wrestling with
this dog and again on October 9, 1989, after refereeing a
backetball game. Thereafter, claimant had chiropractic
treatments in November/December 1989 and February/March
1990.
At no time, did Dr. Stierwalt connect claimant's
chiropractic treatments to the injury sustained on June 14,
1989. Claimant lost no time from work as a result of the
June 14, 1989, incident. Claimant was able to perform his
usual and customary job duties with employer, without
restrictions or medical limitations. He was terminated by
employer on April 15, 1990, for reasons unrelated to his
medical problems. After termination, he aggressively
pursued medical treatment and surgical intervention.
Page 6
Three physicians in this case have provided expert
opinion on the question of causal connection. One
physician, claimant's primary treating chiropractor, has
provided no opinion in this regard. Dr. Rovine, claimant's
surgeon, wrote in a hospital admission summary that "His
present difficulty began in June, 1989. He was driving,
during the course of his regular employment, when a deer
jumped out onto the highway in front of his car. In jamming
on the brakes, he stopped suddenly and his back was twisted
and he developed severe low back pain in the left
lumbosacral area, followed very shortly by severe sciatica."
(ex. 5, p. 11).
Claimant, in reciting his medical history, failed to
inform Dr. Rovine about the two intervening events in August
and October 1989. Both incidents resulted in a flare-up of
low back pain. Dr. Rovine's opinion is no more then a
paraphrase of the incomplete medical history given to him by
claimant. Dr. Rovine only reiterated what claimant reported
to him and such report is deficient because it fails to
relate the traumas in August and October 1989. Therefore,
Dr. Rovine's opinion as to medical causation is rejected.
Dr. Green's opinion is rejected for the same reason.
The only other opinion expressed by a medical expert is
the opinion rendered by Dr. Sinning on June 5, 1991. Dr.
Sinning was claimant's previous treating orthopedic surgeon.
In rendering his opinion, Dr. Sinning reviewed all of the
medical records, including those of Dr. Green, Dr. Rovine
and Dr. Stierwalt. He related as follows:
Reviewing this record, there is certainly no
continuity of complaints to suggest that there is
any connection between the accident in June, 1989
and the surgery the following April, 1990. Too
many things happened after that June 14, 1989
accident to call it a precipitating episode. It
is especially notable that on June 16, Dr.
Stierwalt records Mr. Silver's condition as
better. Then Dr. Stierwalt sees him with two
significant episodes of trauma later on in the
fall. Finally, we learned from Mr. Silver's
deposition that he was involved in both
racquetball and golf during the winter and early
spring of 1990.
Page 7
The MRI showed a small herniation in the midline
toward the left, but the final myelogram showed a
significant herniation at L4-5 on the left side, a real
change from the MRI on October, 1989.
It is my conclusion that the June 14, 1989 incident
had no effect on that progression of events that
apparently started some time later in the fall of 1989
with a minor 4-5 disc herniation culminating in a
significant herniation in April, 1990. In fact, the
significant herniation may not have occurred until
March, 1990 when Dr. Stierwalt comments on the
complaint of left gluteal pain.
(exhibit 6, page 2)
After carefully reviewing the total evidence in this case,
the undersigned is persuaded that the incident of June 14, 1989,
resulted in a temporary aggravation of a previous back condition.
Claimant has not proven by a preponderance of the evidence, that
the June 14, 1989, incident was the precipitating cause resulting
in surgery on April 20, 1990. Claimant is not entitled to
temporary or permanent disability benefits under the Iowa
Workers' Compensation Act.
This issue is dispositive of the entire case and further
analysis in unnecessary.
ORDER
THEREFORE, IT IS ORDERED:
Claimant shall take nothing from these proceedings.
The parties shall pay their own costs in this action
pursuant to rule 343 IAC 4.33.
Signed and filed this ____ day of July, 1992.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Earl A. Payson
Attorney at Law
126 Kirkwood Blvd
Davenport, Iowa 52803
Mr. Craig A. Levien
Attorney at Law
600 Union Arcade Bldg
111 E 3rd St
Davenport, Iowa 52801
51100 51801
Filed July 15, 1992
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RONALD E SILVER,
Claimant,
vs.
File No. 976681
THE TIMMERMAN COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
WAUSAU INSURANCE COMPANIES,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1100
Claimant, a traveling salesman, proved by a preponderance of
the evidence that he sustained an injury arising out of and
in the course of employment with employer.
5-1801
Claimant incurred a temporary aggravation of a preexisting
back condition as a result of his work-related injury.
However, he lost no time from work as a result of the
incident. Two intervening events which also aggravated
claimant's preexisting back condition ultimately resulted in
surgery being performed in April 1990. This surgery was
determined not to be caused by claimant's original incident.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
GLENDA J. HAYNES,
Claimant,
vs.
File No. 976684
PALMER CANDY COMPANY,
A P P E A L
Employer,
D E C I S I O N
and
AETNA CASUALTY & SURETY,
Insurance Carrier,
and
SECOND INJURY FUND OF IOWA,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
September 3, 1992 is affirmed and is adopted as the final agency
action in this case with the following additional analysis:
Claimant has not proved that she has sustained a second
qualifying compensable permanent loss of use of a member
enumerated in Iowa Code section 85.64. Claimant argues that she
has bilateral carpal tunnel syndrome. There is insufficient
evidence in this record to conclude that the alleged bilateral
carpal tunnel syndrome was work related or that claimant has
suffered a permanent loss of an enumerated member from the
bilateral carpal tunnel syndrome. Joel T. Cotton, M.D., opined
that there was no permanent impairment to either upper extremity
due to carpal tunnel syndrome (Joint Exhibit 1, page 3).
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of September, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Page 2
Copies To:
Mr. Roger Carter
Attorney at Law
P.O. Box 912
Sioux City, Iowa 51102
Ms. Judith Ann Higgs
Attorney at Law
P.O. Box 3086
Sioux City, Iowa 51102
Ms. Shirley Ann Steffe
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg.
Des Moines, Iowa 50319
5-1100
Filed September 24, 1993
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
GLENDA J. HAYNES,
Claimant,
vs.
File No. 976684
PALMER CANDY COMPANY,
A P P E A L
Employer,
D E C I S I O N
and
AETNA CASUALTY & SURETY,
Insurance Carrier,
and
SECOND INJURY FUND OF IOWA,
Defendants.
____________________________________________________________
5-1100
Claimant failed to prove by a preponderance of the evidence
that he sustained a work-related injury. Claimant had been
told to punch out on the time clock and wait for five to six
hours before returning to work. Claimant was free to do
anything he wanted during the time he was off duty.
3202
Filed September 24, 1993
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
GLENDA J. HAYNES,
Claimant,
vs.
File No. 976684
PALMER CANDY COMPANY,
A P P E A L
Employer,
D E C I S I O N
and
AETNA CASUALTY & SURETY,
Insurance Carrier,
and
SECOND INJURY FUND OF IOWA,
Defendants.
____________________________________________________________
3202
Claimant failed to prove a loss or loss of use to a
designated second injury pursuant to Iowa Code section
85.64.
Claimant sustained a work-related injury to her left knee in
October 1989. She was off work from October 27, 1989
through March 26, 1990. She returned to work in March and
quit in April 1990 due to left knee problems.
Claimant alleges that she quit work in April 1990 due to
left knee and cumulative injuries to her upper extremities.
The medical evidence does not support claimant's contentions
that she has a permanent disability to her upper
extremities.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
GLENDA J. HAYNES, :
:
Claimant, :
:
vs. :
: File No. 976684
PALMER CANDY COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
AETNA CASUALTY & SURETY, :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Glenda
J. Haynes, claimant, against the Second Injury Fund of Iowa,
for benefits as the result of an alleged injury which
occurred on April 19, 1990. An agreement for settlement
between claimant, employer and its insurance carrier was
approved on April 20, 1992, eliminating these two initial
defendants from the case.
This matter came on for hearing before the undersigned
deputy industrial commissioner in Sioux City, Iowa, on
August 14, 1992. The record was considered fully submitted
at the close of the hearing. The record in this case
consists of joint exhibits 1 through 31. The claimant was
present and testified. Also present and testifying were
Arnold Haynes and Lynne Easterday.
ISSUE
The sole issue is whether claimant is entitled to
benefits from the Second Injury Fund of Iowa.
FINDINGS OF FACT
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits, and makes the following findings:
Claimant seeks permanent partial disability benefits
from the State of Iowa Second Injury Fund for the combined
disability caused by an October 27, 1989, injury to her left
knee and an alleged April 19, 1990, bilateral carpal tunnel
Page 2
syndrome.
Claimant was born on April 14, 1938, and completed the
twelfth grade of school. After graduating from high school,
she taught elementary school in rural Nebraska for ten
years. She then took 15 years off to raise her two
children. She returned to work in 1979 as a sales person
with Younker's Bakery and then as a line worker with
Durapac. On June 8, 1981, she commenced working for
employer as a line worker. Her job required prolonged
standing. In November 1989 claimant developed left knee
symptoms. She developed knee problems in October 1989 but
continued to work on and off through July 28, 1990. She
also worked in the repack room sealing, labeling and loading
boxes.
The medical evidence reveals that claimant was
evaluated by Duane K. Nelson, M.D., on November 16, 1989,
with complaints of left knee pain. She related the onset of
pain to October 27, 1989, but could not recall any specific
work injury. She reported doing a lot of twisting and
lifting boxes while working on the line. An MRI examination
was performed on November 17, 1989, which revealed internal
derangement in the left knee (exhibit 9, pages 23-24).
Claimant entered St. Luke's Regional Medical Center on
December 6, 1989, and Dr. Nelson performed a left knee
arthroscopic partial lateral meniscectomy. Postoperative
diagnosis was torn lateral meniscus of the left knee and
early osteoarthritis (ex. 11).
Claimant continued to experience left knee pain and Dr.
Nelson referred her to the Mayo Clinic for evaluation on
July 27, 1990. X-rays of both knees showed degenerative
changes with narrowed lateral compartments and a valgus
deformity of the left knee of nine degrees. While at the
Mayo Clinic, claimant was seen by Bradford Currier, M.D., in
orthopedics and Sherwin Goldman, M.D., at the Impairment
Evaluation Center. Surgical options were discussed with
claimant including osteotomy, arthrodesis or total knee
replacement. Claimant was 251 pounds and advised to lose
weight. Dr. Goldman indicated that claimant could perform
sedentary work activity but no work where she would have to
stand, stoop, squat, climb ladders, or bend and twist with
her left knee. Dr. Goldman gave her a 10 percent permanent
partial impairment rating of the left knee (exs. 2-6).
Claimant testified that she was off work from October
27, 1989 through March 1990. She returned to work on March
27, 1990, and worked until April 19, 1990. Lynne Easterday,
claimant's vocational rehabilitation consultant, reported on
October 30, 1991, that claimant developed knee problems in
October 1989 but continued to work on and off through July
28, 1990. In another paragraph, she stated that claimant
returned to work on March 27, 1990, and left after three
days because her knee was swollen due to having to stay in
one position for a continued period of time. She then
stated that claimant continued to work until April 14, 1990
(ex. 27, p. 53). In any event, what is certain is that
claimant last worked for employer in April 1990.
Page 3
Claimant contends that she suffered cumulative trauma
injuries to both upper extremities which became disabling on
April 19, 1990, when she quit work with employer.
The medical evidence reveals that claimant was seen by
John A. Walck, M.D., on November 1, 1989, for left knee
pain. A secondary problem was bilateral hand numbness, more
on the right than the left. She related to Dr. Walck that
she woke up with numbness in her hands and fingers. She
indicated that she has had this problem for a couple of
years and it was getting progressively worse. Dr. Walck
noted bilateral positive Tinel's and Phalen's signs. He
gave her a wrist splint for the right hand and indicated she
may return to work on a limited basis (ex. 21, p. 41).
Claimant saw Dr. Walck on November 3, 1989, and
indicated that her right hand had improved. Nerve
conduction studies were recommended (ex. 21, p. 42).
The next time claimant complained about hand problems
to Dr. Walck was on December 12, 1990. She reported
numbness with activity and pain. Dr. Walck referred her to
Kevin Liudahl, M.D., for evaluation (ex. 24, p. 47).
Claimant saw Peter D. Wirtz, M.D., on January 16, 1991,
for examination. Claimant's complaints were referable to
left knee pain. She gave a history of bilateral hand
numbness prior to the injury on October 27, 1989. Dr. Wirtz
felt that claimant's persistent left knee symptoms were
related to a degenerative condition in the knee area (ex.
26).
Claimant saw Dr. Liudahl on March 19, 1991. Claimant
related that in late 1989, while still working for employer,
she noted the insidious onset of evening and activity
related numbness in both hands, some decrease in grip
strength and pain/tingling in the volar radial 3 1/2
fingertips. She stated that the pain has persisted and
intensified with the use of crutches. An examination of her
hands revealed a positive Tinel's/Phalen's at bilateral
carpal tunnels. She had 50 percent decreased sensation on
the volar radial 3 1/2 fingertips. Dr. Liudahl felt that
she needed a work-up of her carpal tunnel syndrome and he
recommended bilateral EMG and nerve conduction studies (ex.
8).
On March 29, 1991, Leonel H. Herrera, M.D., performed
nerve conduction and electromyographic studies to determine
the etiology of claimant's bilateral hand numbness and
weakness. The studies were consistent with bilateral median
nerve mononeuropathy, right worse than left (ex. 7).
On April 16, 1991, Dr. Walck reported that, in his
opinion, claimant's mononeuropathy was definitely related to
her work (ex. 24). On July 31, 1991, Dr. Walck reported
that, in his opinion, claimant has, "...a history or
permanent disability relating to knee injuries and carpal
tunnel." (ex. 25).
Page 4
CONCLUSIONS OF LAW
Section 85.64 governs Second Injury Fund liability.
Before liability of the Fund is triggered, three
requirements must be met. First, the employee must have
lost or lost the use of a hand, arm, foot, leg or eye.
Second, the employee must sustain a loss or loss of use of
another specified member or organ through a compensable
injury. Third, permanent disability must exist as to both
the initial injury and the second injury.
The Second Injury Fund Act exists to encourage the
hiring of handicapped persons by making a current employer
responsible only for the amount of disability related to an
injury occurring while that employer employed the
handicapped individual as if the individual had had no
preexisting disability. See Anderson v. Second Injury Fund,
262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers'
Compensation--Law and Practice, section 17-1.
Lawyer and Higgs, Iowa Workers' Compensation--Law and
Practice, (2d ed.) section 17-5, page 171, provides, "There
must be permanent disability resulting both from the initial
loss, or loss of use, and from the loss of another such
member or organ."
There is no requirement that the initial loss or loss
of use to a hand, arm, foot, leg, or eye be compensable, but
the second must be. Lawyer and Higgs, Iowa Workers'
Compensation--Law and Practice, (2d ed.) section 17-4, page
171.
Addressing the nature and extend of a preexisting
disability, the Iowa Supreme Court quoted from Kacena v.
Workmens' Compensation in Tennesse: The Second Injury Fund,
6 Memphis State U.L. rev. 715, 715-19 (1976), as follows,
"The source of [a] pre-existing disability is normally of no
importance but it must [be permanent and must] tend to act
as a hindrance to the individual's ability to obtain or
retain effective employment" Anderson, 262 N.W.2d 789, 791.
In this case, claimant has proved a prior loss of use
to her left knee.
However, claimant has failed to prove a compensable
second injury that has resulted in any loss, loss of use, or
permanent disability.
Claimant testified that she last worked for employer in
April 1990. She stated that but for her left lower
extremity problems, she probably would still be employed
there. Although claimant reported to Dr. Walck on November
1, 1989, some numbness in her hands and fingers, this
problem either abated or was asymptomatic until December 12,
1990, when her complaints resurfaced. The medical evidence
clearly demonstrates that claimant has bilateral carpal
tunnel syndrome which Dr. Walck relates to her work with
employer. However, the evidence is silent as to the extent
of claimant's disability. No physician who has examined
and/or treated claimant has given her a permanent impairment
Page 5
rating or restrictions demonstrating loss or loss of use to
her upper extremities. In the absence of this medical
evidence, the undersigned is reluctant to embellish the
medical evidence and designate a permanent impairment rating
or find restrictions where none are articulated by any
physician.
In an agreement for settlement approved by the
industrial commissioner on April 20, 1992, claimant and
defendants stipulated that as a result of the work injury of
April 19, 1990, claimant has an 8 percent permanent partial
disability as a result of a bilateral upper extremity
impairment. The Second Injury Fund of Iowa was not a party
to the agreement for settlement, and is, therefore, not
bound by it. Bevins v. Farmstead Foods, file numbers
834865, 877458, 881784, & 888705 (App. Dec. 1991).
Accordingly, claimant has failed to sustain her burden
of proof by a preponderance of the evidence that she
sustained a second injury which resulted in loss or loss of
use of her upper extremities, or one which has caused
permanent impairment or disability. Iowa Code section
85.64.
Since claimant has failed to sustain her burden of
proof by a preponderance of the evidence, there is no
liability on the part of the Second Injury Fund of Iowa.
ORDER
THEREFORE, IT IS ORDERED:
That the Second Injury Fund owes no amount of liability
to claimant.
That the parties shall pay their own costs in this
matter.
Signed and filed this ____ day of September, 1992.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Roger Carter
Attorney at Law
303 Terra Centre
600 4th st
PO Box 912
Sioux City, IA 51102
Ms. Judith Ann Higgs
Attorney at Law
701 Pierce St, STE 200
PO Box 3086
Page 6
Sioux City, IA 51102
Ms. Shirley Ann Steffe
Assistant Attorney General
Hoover State Office Bldg
Des Moines, IA 50319
3202
Filed September 3, 1992
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
GLENDA J. HAYNES,
Claimant,
vs.
File No. 976684
PALMER CANDY COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
AETNA CASUALTY & SURETY,
Insurance Carrier,
and
SECOND INJURY FUND OF IOWA,
Defendants.
___________________________________________________________
3202
Claimant failed to prove a loss or loss of use to a
designated second injury pursuant to Iowa Code section
85.64.
Claimant sustained a work-related injury to her left knee in
October 1989. She was off work from October 27, 1989
through March 26, 1990. She returned to work in March and
quit in April 1990 due to left knee problems.
Claimant alleges that she quit work in April 1990 due to
left knee and cumulative injuries to her upper extremities.
The medical evidence does not support claimant's contentions
that she has a permanent disability to her upper
extremities.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LEONA TOUSSAINT, :
:
Claimant, : File Nos. 976686
: 976687
vs. :
: A R B I T R A T I O N
ORAL B LABORATORIES, INC., :
: D E C I S I O N
Employer, :
:
and :
:
CIGNA INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by the
claimant, Leona Toussaint, against her employer, Oral B
Laboratories, Inc., and its insurance carrier, Insurance
Company of North America, to recover benefits under the Iowa
Workers' Compensation Act as the result of injuries
allegedly sustained on March 17, 1988, and April 26, 1986,
respectively. This matter came on for hearing before the
undersigned deputy industrial commissioner at Cedar Rapids,
Iowa, on May 19, 1992. A first report of injury has been
filed.
The record consists of the testimony of claimant, of
David Toussaint and of Becky Hasler as well as of joint
exhibits 1 through 21, claimant's exhibit I and defendants'
exhibits A, B and C.
ISSUES
Pursuant to the hearing assignment order, the
prehearing report and the oral stipulation of the parties,
the parties have stipulated to the following: That claimant
did receive an injury arising out of and in the course of
her employment on April 26, 1986, relating to her right hand
and that that injury caused claimant a period of temporary
total disability as to the right hand for which claimant has
been paid 19 weeks of healing period benefits and 19 weeks
of permanent partial disability benefits at the rate of
$251.90. (Nineteen weeks of permanent partial disability
benefits reflects payment equal to a 10 percent permanent
partial disability rating of the right hand.) The parties
further stipulated that claimant was married and entitled to
four exemptions and had a gross weekly wage of $408.00
resulting in a weekly compensation rate of $251.90.
Issues remaining to be decided are:
Page 2
1. Whether claimant received an injury to her left
hand on April 26, 1986, and on March 17, 1988, or on both
dates;
2. Whether a causal relationship exists between
claimant's alleged left hand injury or injuries and claimed
disability;
3. Whether claimant is entitled to additional healing
period, temporary total or permanency benefits and the
nature and extent of any such benefit entitlement;
4. Whether any claim related to the left side is
barred as filed subsequent to the applicable statute of
limitations under section 85.26(1); and,
5. Whether any claim related to the left side is
barred as claimant has failed to give proper notice as
specified in section 85.23.
FINDINGS OF FACT
The deputy, having heard the testimony and considered
the evidence, finds:
Claimant worked for the employer, Oral B Laboratories,
from 1978 until she left that employment on March 18, 1988.
While both claimant and her spouse testified that claimant
left Oral B's employ on account of her alleged hand
condition, the record reflects that claimant left in order
to retire and reside with her husband in Mountain View,
Missouri.
Claimant is right-hand dominant. She worked in a
variety of jobs at Oral B Laboratories, all of which involve
some repetitive hand motion. From the mid-1980s onward,
jobs at the Oral B plant have been rotated on a daily basis;
prior to that, they were rotated on a weekly basis.
Claimant initially complained of symptoms in 1986. While
claimant testified that she reported both left and right
hand symptoms, records of the employer kept in the normal
course of its business do not reflect complaints of a left
hand condition. Medical records in evidence reflect that,
on claimant's first visit with James B. Worrell, M.D., on
October 14, 1987, and at subsequent visits, claimant
complained of symptoms in both hands. Dr. Worrell reported
findings of a positive Tinel's sign on the right with slight
weakness of thumb abduction and loss of sensation over the
right hand on October 14, 1987. An initial EMG of October
1987 was normal as was a subsequent EMG of March 3, 1988. A
third EMG of June 30, 1988, revealed a mild right carpal
tunnel syndrome with sensory conductions below what Dr.
Worrell considered normal bilaterally. In his deposition,
Dr. Worrell reported that he advised a carpal tunnel release
on the right and did not advise a release on the left since
claimant's symptoms were predominantly in the right hand and
her EMG was barely positive on the left. He also indicated
he would not assign a permanent partial impairment rating on
the left given lack of information concerning the left hand
Page 3
and claimant's limited symptoms on that side.
Lanny W. Harris, M.D., examined claimant on July 15,
1988. The impression was right carpal tunnel syndrome
related to claimant's work with Oral B Labs.
Michael M. Durkee, M.D., performed a right carpal
tunnel release on March 10, 1989, which, on April 25, 1989,
he opined was work related. Dr. Durkee reported that
claimant continued to complain of numbness in the right
index and long fingers with night awakening and with pain
and discomfort as of August 3, 1988. A subsequent
electromyelogram of August 22, 1988, per R. F. Neiman, M.D.,
showed no evidence of recurrent carpal tunnel syndrome and
no evidence of cervical radiculopathy.
On June 27, 1990, Dr. Durkee assigned claimant a 10
percent permanent partial impairment of the right hand based
on both the Manual for Orthopaedic Surgeons in Evaluating
Permanent Physical Impairment and on the AMA guides. Dr.
Durkee restricted claimant from lifting over 5-10 pounds on
the right and from repetitious use of the right upper
extremity. Dr. Durkee reexamined claimant on March 13,
1992, at which time he found full extension and full flexion
on the right without swelling. Medical records in evidence
contain no findings related to claimant's left hand other
than Dr. Worrell's office notations as to complaints in both
hands and other than the June 30, 1988, EMG report's
reference to sensory conductions being below normal
bilaterally.
Given the above, it is expressly found that claimant
has not demonstrated an injury arising out of and in the
course of her employment related to her left hand. It is
further expressly found that claimant has not demonstrated
any causal relationship between her work and claimed
disability to the left hand. It is also expressly found
that claimant has received full healing period and permanent
partial disability weekly compensation relative to her
claimed injury to her right hand. Given the above findings,
findings relative to the notice and statute issues are not
necessary.
CONCLUSIONS OF LAW
As to whether claimant has established an injury
arising out of and in the course of her employment:
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).
As noted above, virtually no substantiation outside of
Page 4
the bear assertions of claimant and her spouse exists as to
any injury on the left. The testimony of claimant and her
spouse, without more, is insufficient to establish the
existence of a medical condition significant enough to rise
to the level of an injury as contemplated in the workers'
compensation statute.
As to the issue of whether claimant has demonstrated a
causal relationship between the alleged injuries on the left
and claimed disability on the left:
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).
It has already been concluded that claimant has not
demonstrated an injury or injuries arising out of and in the
course of her employment relative to her left hand.
Likewise, neither the medical nor the lay evidence supports
any finding of causal relationship between claimant's work,
or work injury, and any disability to the left hand.
Indeed, but for the minimal references in Dr. Worrell's
notes and Dr. Worrell's statement in his deposition, no
evidence as to any left hand condition exists. Dr. Worrell
himself noted that the EMG was "barely positive" on the left
and that limited symptoms on the left precluded assignment
of a permanent partial impairment rating relative to that
side.
In that claimant has not shown an injury or claimed
disability on the left, claimant is not entitled to either
healing period, temporary total or permanent partial
disability benefits relative to her left hand. As to the
question of whether claimant is entitled to additional
benefits relative to her right hand:
Section 85.34(1) provides that healing period benefits
are payable to an injured worker who has suffered permanent
partial disability until (1) the worker has returned to
work; (2) the worker is medically capable of returning to
Page 5
substantially similar employment; or (3) the worker has
achieved maximum medical recovery. The healing period can
be considered the period during which there is a reasonable
expectation of improvement of the disabling condition. See
Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa
Ct. App. 1981). Healing period benefits can be interrupted
or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa
1986).
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
different specific injuries. The employee is not entitled
to compensation except as the statute provides. Soukup v.
Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
Compensation for permanent partial disability begins at
termination of the healing period. Section 85.34(2).
Permanent partial disabilities are classified as either
scheduled or unscheduled. A specific scheduled disability
is evaluated by the functional method; the industrial method
is used to evaluate an unscheduled disability. Simbro v.
Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v.
Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v.
Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
Claimant has presented no evidence demonstrating an
entitlement to either healing period or permanent partial
disability benefits relative to her right hand greater than
those benefits already received. Claimant's current
complaints on the right are consistent with the complaints
her physicians recorded from her injury onward. Her
restrictions appear to be no greater than those Dr. Durkee
assigned on June 27, 1990, when he also assigned the
permanent partial impairment rating of 10 percent of the
right hand. Hence, it is concluded that claimant is
entitled to neither further temporary total disability,
healing period or permanent partial disability benefits on
account of her right hand injury.
ORDER
THEREFORE, IT IS ORDERED:
Claimant take nothing from this proceeding relative to
any claimed injury to her left hand.
Claimant take nothing further from this proceeding
relative to her right hand injury.
Claimant pay costs of this proceeding pursuant to rule
343 IAC 4.33.
Signed and filed this ______ day of ____________, 1992.
-------------------------------
HELENJEAN M. WALLESER
DEPUTY INDUSTRIAL COMMISSIONER
Page 6
Copies To:
Mr. Robert DeKock
Attorney at Law
227 Mulberry Avenue
Muscatine, Iowa 52761-4127
Mr. John M. Bickel
Attorney at Law
500 Firstar Bank Building
P.O. Box 2107
Cedar Rapids, Iowa 52406-2107
5-1100; 5-1802; 5-1803
5-2209; 5-2907
Filed July 15, 1992
HELENJEAN M. WALLESER
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LEONA TOUSSAINT,
Claimant, File Nos. 976686
976687
vs.
A R B I T R A T I O N
ORAL B LABORATORIES, INC.,
D E C I S I O N
Employer,
and
CIGNA INSURANCE COMPANY,
Insurance Carrier,
Defendants.
____________________________________________________________
5-1100; 5-1802; 5-1803; 5-2209; 5-2907
Evidence did not support claimant's allegation of a left
hand injury or claimant's allegation of greater healing
period or permanent partial disability benefits entitlement
on account of right carpal tunnel injury.
Costs taxed to claimant.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
PENNY AUGSBURGER WOLFE, :
:
Claimant, :
:
vs. :
: File No. 976690
MASON & HANGER-SILAS MASON :
CO., : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
THE TRAVELERS INSURANCE :
COMPANY, :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
___________________________________________________________
statement of the case
This is a proceeding in arbitration brought by Penny
Augsburger Wolfe, claimant, against Mason & Hanger-Silas
Mason Company, Inc., employer, and Travelers Insurance
Company, insurance carrier, as well as against the Second
Injury Fund of Iowa, defendants, to recover benefits under
the Iowa Workers' Compensation Act as a result of an alleged
injury sustained on May 18, 1989. This matter came on for
hearing before the undersigned deputy industrial
commissioner on March 17, 1992, in Burlington, Iowa. The
record was considered fully submitted at the close of the
hearing. The record in this case consists of claimant's
testimony; claimant's exhibits 1 through 5; and Second
Injury Fund's exhibits A through H.
issue
The issue to be determined in this case is whether
claimant's bilateral upper extremity impairment was caused
by a single accident or two separate injuries and, if so,
whether she is entitled to Second Injury Fund benefits.
findings of fact
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Claimant was born on February 16, 1957, and completed
Page 2
the tenth grade of school. She received her GED certificate
in 1978. She commenced working for employer in July 1986.
Employer, Mason and Hanger-Silas Mason Company, operates the
Iowa Army Ammunitions Plant (IAAP) in Middletown, Iowa.
Initially, claimant was assigned to work as a production
operator. In this capacity she operated a hoist. This job
required constant and repetitive use of the upper
extremities. Claimant testified that she suffered an injury
to her right upper extremity on July 7, 1988, and underwent
cubital tunnel surgery on October 12, 1988. After surgery,
she returned to light duty work. She alleges that she
injured her left upper extremity on May 18, 1989, and
underwent left cubital tunnel release on June 12, 1989.
A review of the pertinent medical evidence of record
reveals that claimant reported to employer's Field Hospital
on July 7, 1988, with complaints of pain, numbness and
tingling in the fingers of her right hand. She was seen by
Jesse Saar, M.D., company physician, who prescribed
Naprosyn, whirlpool and wrist support. Claimant's symptoms
persisted and Dr. Saar referred her to Koert R. Smith, M.D.,
for a second opinion (ex. 2).
Dr. Smith evaluated claimant on September 15, 1988.
She presented with complaints of bilateral wrist and hand
pain, more severe on the right. Dr. Smith's initial
assessment was probable bilateral carpal tunnel syndrome,
right more severe than left, or possible cubital tunnel
syndrome. He scheduled claimant for median and ulnar nerve
conduction studies (ex. 3).
Burton Stone, M.D., performed the studies on September
26, 1988. The results were consistent with right cubital
tunnel syndrome (ex. 4).
On October 12, 1988, Dr. Smith performed right cubital
tunnel release. A follow-up examination on November 21,
1988, revealed improvement in her right-sided symptoms. At
this time, she noted some slight tremor of the interosseous
muscles on the left nonoperated side. Dr. Smith released
claimant to return to work on November 28, 1988 (ex. 3, p.
2).
Claimant continued to see Dr. Smith for follow-up
evaluations. On May 18, 1989, she presented with bilateral
arm pain, worse on the left than the right. Dr. Smith
reviewed his notes of claimant's original evaluation in
September 1988 and noted that at that time she complained of
bilateral arm pain and numbness. Because of increasing
symptoms, Dr. Smith referred her to Dr. Stone to repeat
median and ulnar nerve conduction studies (ex. 3, p. 3).
These studies were performed on June 1, 1989. The findings
revealed a slowing of the left ulnar nerve through the
cubital tunnel area (ex. 4, p. 2).
On June 6, 1989, Dr. Smith performed left cubital
tunnel release. On June 22, 1989, Dr. Smith released
claimant for limited one-handed duty (ex. 3, p. 4).
Dr. Smith saw claimant for a follow-up evaluation on
Page 3
December 4, 1989. He noted a full range of motion of the
elbows, forearms and wrists. There was minimal tenderness
to percussion over the cubital tunnels, bilaterally. A
neurologic examination was intact. Dr. Smith recommended a
continuation of permanent light duty.
Dr. Smith saw claimant again on August 31, 1990.
Because of some persistence in symptoms after her June
surgery, she had repeat median and ulnar conduction studies
in September of 1989. Results revealed persistent cubital
tunnel syndrome, but the medial nerves were intact. This
examination revealed minimal diffuse tenderness but no real
localizing tenderness. There was full and symmetrical range
of motion of the shoulders, elbows, forearms, wrists, and
hands. A neurologic examination was intact with the
exception of diffuse tenderness in both hands. Repeat
EMG's, median and ulnar nerve conduction studies were
performed on September 13, 1990. The results were
consistent with persistent slowing of both ulnar nerves
through the cubital tunnel. Additional laboratory studies
were recommended (ex. 3, p. 5).
Dr. Smith reevaluated claimant on September 27, 1990.
He noted that all of her laboratory tests were normal. He
reported, "I advised her that I think she has a cumulative
trauma disorder and that she simply will not allow on a
continual basis repetitive heavy activity." (Ex. 3, p. 6).
On October 19, 1990, Dr. Smith reported that claimant
continues to have intermittent numbness and weakness with
repetitive type activities. It was his opinion that her
residual symptoms are related to repetitive type of work.
He further opined that, "[S]he would rate a 10% upper
extremity impairment on the right side and a 10% upper
extremity impairment on the left side for her residual
symptoms of numbness, weakness, and abnormal nerve
conduction studies." (Ex. 3, p. 13).
conclusions of law
The issue to be determined in this case is whether
claimant sustained two separate injuries, one on July 7,
1988, and the other on May 18, 1989, or bilateral cubital
tunnel syndrome resulting from one gradual injury process.
Claimant has the burden of proving by a preponderance
of the evidence that she received an injury to her right
upper extremity on July 7, 1988, and a separate injury to
her left upper extremity on May 18, 1989, which arose out of
and in the course of her employment. McDowell v. Town of
Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); Musselman v.
Central Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967). The
words "arising out of" have been interpreted to refer to the
cause and origin of the injury. McClure v. Union County,
188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto
Consolidated School District, 68 N.W.2d 63, 65 (Iowa 1955).
The words "in the course of" refer to the time, place and
circumstances of the injury. McClure, 188 N.W.2d at 287;
Crowe, 68 N.W.2d at 65. An injury occurs in the course of
the employment when it is within the period of employment at
Page 4
a place the employee may reasonably be, and while the
employee is doing work assigned by the employer or something
incidental to it. Cedar Rapids Community School District v.
Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure, 188 N.W.2d
at 287; Musselman, 154 N.W.2d at 130.
The Supreme Court has defined a personal injury for the
purposes of workers' compensation cases. Almquist v.
Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this
case the Court found that a personal injury, is an injury to
the body, the impairment of health, or a disease, not
excluded by the Workers' Compensation Act, which comes
about, not through the natural building up and tearing down
of the human body, but because of a traumatic or other hurt
or damage to the health or body of an employee. The injury
to the human body must be something, whether an accident or
not, that acts extraneously to the natural processes of
nature, and thereby impairs the health, overcomes, injures,
interrupts, or destroys some function of the body, or
otherwise damages or injures a part or all of the body.
The Almquist Court further observed that while a
personal injury does not include an occupational disease
under the Workers' Compensation Act, yet an injury to the
health may be a personal injury. A personal injury includes
a disease resulting from an injury. However, the result of
changes in the human body incident to the general processes
of nature do not amount to a personal injury. This is true,
even though natural change may come about because the life
has been devoted to labor and hard work. Results of those
natural changes do not constitute a personal injury even
though the same brings about impairment of health or the
total or partial incapacity of the functions of the human
body.
The Supreme Court has also recognized that a cumulative
injury may occur over a period of time. The injury in such
cases occurs when, because of pain or physical disability,
the claimant is compelled to leave work. McKeever Custom
Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985).
Moreover, claimant's last employer becomes liable for the
cumulative injury, even if the incidents that lead to the
ultimate injury do not occur while a claimant is employed
with the last employer. McKeever, 379 N.W.2d at 376; See
also Doerfer Division of CCA v. Nicol, 359 N.W.2d 428,
434-35 (Iowa 1984).
The Fund has raised the issue of occupational disease
as an affirmative defense in this matter and therefore has
the burden of proof on the issue of whether cubital tunnel
syndrome is an occupational disease. Reddick v. Grand Union
Tea Co., 296 N.W.2d 800, 803 (Iowa 1941) (Employer has
burden of proof for affirmative defense in workers'
compensation case); McMasters v. Hutchins, 120 N.W.2d 509,
514 (Iowa 1963). One deputy has recently ruled that the
Fund is not entitled to raise occupational disease as a
defense since this would allow someone other than the
claimant to prosecute a workers' compensation claim in
violation of Iowa Code section 85.26(4). Cosper v. The
Page 5
Second Injury Fund, File No. 855687 Slip op. (Iowa Ind.
Comm'r Arb. December 24, 1991). This position was rejected
by another deputy who found that the Fund can raise any
affirmative defense it can muster to protect itself from
paying benefits. Olson v. Wilson Foods Corporation, File
No. 858635 (December 31, 1991). Since the claimant must
prove that the threshold requirements of Fund liability have
been met in order to be compensated, the Fund has the
corresponding opportunity to show that the threshold
requirements of Iowa Code section 85.64 (1991) have not been
met. If the Fund chooses to contend that claimant has an
occupational disease, and thereby avoid liability, it can do
so. The Fund is not seeking payments of benefits to itself
on behalf of the claimant and thereby avoids the constraint
of Iowa Code section 85.26(4). The Fund is simply defending
itself in an adversarial setting by putting the claimant to
his proof. More to the point, there is no evidence in this
record that the Fund is attempting to maintain an action on
behalf of the claimant. Consequently, if the Fund is
successful in showing that claimant is suffering from an
occupational disease, the Fund will have no liability on
this claim.
The evidence in this case clearly demonstrates that
claimant suffered a cumulative trauma injury that resulted
in an onset of bilateral wrist and hand pain in September
1988 which caused her to leave work on October 12, 1988, in
order to undergo right cubital tunnel release and to leave
work a second time on June 6, 1989, to undergo left cubital
tunnel release.
The undersigned is persuaded that the factual evidence
clearly demonstrates that claimant's condition developed
over the same period of time.
Bilateral cubital tunnel syndrome resulting from one
gradual injury process constitutes the loss of two members
from one accident and is evaluated on a functional basis
under Iowa Code section 85.34(2)(s). Himschoot v. Montezuma
Manufacturing, File Nos. 672778 and 738235 (App. Decn.,
April 15, 1988), aff'd, No. 89-341 [9-604], (Iowa Ct. App.
February 22, 1990). The manifestation of one injury on two
occasions does not necessarily qualify an injury for Second
Injury Fund benefits under section 85.64. McMurrin v.
Quaker Oats Company, I Iowa Industrial Commissioner Report
222 (App. Decn., April 28, 1981).
Iowa Code section 85.34(2)(s) provides in part: "The
loss of both arms, or both hands, or both feet, or both
legs, or both eyes, or any two thereof, caused by a single
accident, shall equal five hundred weeks and shall be
compensated as such, . . ."
Workers' compensation benefits for permanent partial
disability of two members caused by a single accident is a
scheduled benefit under Iowa Code section 85.34(2)(s) and
the degree of impairment caused by a partial loss must be
computed on the basis of functional, rather than industrial
disability. Simbro v. Delong's Sportswear, 332 N.W.2d 886
Page 6
(Iowa 1983).
Claimant has shown by a preponderance of the evidence
that her injury was the cause of permanent disability. Dr.
Smith awarded claimant a 10 percent impairment of the right
arm and a 10 percent impairment of the left arm. Using the
AMA Guides to the Evaluation of Permanent Impairment, 10
percent of the upper extremity converts to 6 percent of the
whole person. Placing these two values on a combined values
chart on the last page of the book produces a combined value
of 12 percent of the body as a whole.
Therefore, claimant is entitled to 60 weeks of
permanent partial disability benefits (12 percent times 500)
at the rate of $241.74 per week, commencing July 5, 1989.
Defendant employer has paid claimant all healing period
and permanent partial disability benefits to which claimant
is entitled and has no further liability in this case.
Since claimant sustained bilateral cubital tunnel
syndrome as a result of one gradual injury process
culminating in the loss of two members from one accident,
she has not shown any entitlement to Second Injury Fund
benefits on this record. The manifestation of one injury on
two occasions does not necessarily qualify as an injury for
Second Injury Fund benefits under section 85.64. McMurren
v. Quaker Oats Co., I Iowa Industrial Commissioner Report
222 (App. Decn., April 28, 1981).
Before the Second Injury Fund is triggered, three
requirements must be met. First the employee must have lost
or lost the use of a hand, arm, foot, leg, or eye. Second,
the employee must sustain a loss or loss of use of another
specified member or organ through a compensable injury.
Third, permanent disability must exist as to both the
initial injury and the second injury. Allen v. Second
Injury Fund, Thirty-fourth Biennial Report of the Iowa
Industrial Commissioner 15 (1980); Ross v. Service
Master-Story Co., Thirty-fourth Biennial Report of the Iowa
Industrial Commissioner 273 (1979). The Act exists to
encourage the hiring of handicapped persons by making the
current employer responsible only for the amount of
disability related to an injury occurring under his employ
as if there were no preexisting disability. Anderson v.
Second Injury Fund, 262 N.W.2d 789, 791 (Iowa 1978); Lawyer
and Higgs, Iowa Workers' Compensation--Law and Practice, (2d
ed.) section 17-1.
The Fund is responsible for the difference between
total disability and disability for which the employer at
the time of the second injury is responsible. Iowa Code
section 85.64; Second Injury Fund v. Neelans, 436 N.W.2d 335
(Iowa 1985); Second Injury Fund v. Mich. Coal Co., 274
N.W.2d 300 (Iowa 1970).
Claimant has not established any entitlement to Second
Injury Fund benefits on this record.
This issue is dispositive of the entire case and
Page 7
further analysis is unnecessary.
order
THEREFORE, IT IS ORDERED:
Claimant take nothing from this proceeding.
The parties shall pay their own costs in this
proceeding pursuant to rule 343 IAC 4.3.
Signed and filed this ____ day of March, 1992.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Steven J. Crowley
Attorney at Law
P.O. Box 517
Burlington, Iowa 52601
Ms. Vicki L. Seeck
Attorney at Law
600 Union Arcade Bldg.
Davenport, Iowa 52801-1550
Mr. Greg Knoploh
Assistant Attorney General
Hoover State Office Bldg.
Des Moines, Iowa 50319
5-3200
Filed March 31, 1992
JEAN M. INGRASSIA
before the iowa industrial commissioner
____________________________________________________________
:
PENNY AUGSBURGER WOLFE, :
:
Claimant, :
:
vs. :
: File No. 976690
MASON & HANGER-SILAS MASON :
CO., : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
THE TRAVELERS INSURANCE :
COMPANY, :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
____________________________________________________________
5-3200
Claimant alleges an injury to her right upper extremity on
July 7, 1988, and another injury to her left upper extremity
on May 18, 1989. Claimant seeks Second Injury Fund benefits
as a result of two separate injuries.
A review of the medical evidence indicates that claimant
experienced bilateral wrist and hand symptoms on September
15, 1988, as a result of repetitive work activity. On
October 12, 1988, she underwent right cubital tunnel release
and on June 6, 1989, she underwent left cubital tunnel
release. It was determined that claimant's bilateral
cubital tunnel syndrome was the result of one gradual injury
process culminating in the loss of two members from one
accident. Entitlement to Second Injury Fund benefits was
not established on this record.
5-1800
Filed March 17, 1992
Patricia J. Lantz
before the iowa industrial commissioner
____________________________________________________________
:
NEIL CHRISTENSEN, :
:
Claimant, :
: File Nos. 871523
vs. : 976696
:
PRINCE MANUFACTURING CO., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
AETNA CASUALTY & SURETY CO., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1800
Claimant sustained a shoulder injury and underwent surgery
for removal of the distal clavicle and a resection of the AC
joint.
Claimant was given impairment ratings of 10 percent and 0
percent. Restrictions included no lifting of greater than
50 pounds and no lifting of objects longer than 48 inches.
Claimant's actual earnings were higher after the injury and
the employer accommodated all of claimant's restrictions.
Awarded 5% industrial disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
CHARLES GODBEY, :
:
Claimant, :
:
vs. :
: File No. 976732
JERRY MCVAY CONSTRUCTION, :
INC.,
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Charles
Godbey against Jerry McVay Construction, Inc., and its
insurance carrier, CNA Insurance Companies.
The case was heard on March 25, 1994, at Cedar Rapids,
Iowa. The record consists of the testimony from the
claimant, Don Schuettpelz (union business manager), Sheena
McVay, and Jerry McVay; claimant's exhibits 1 through 10;
and, defendants' exhibits A through F.
ISSUE
The parties have submitted the following issues for
resolution:
1. Whether claimant is entitled to temporary total,
healing period or permanent partial disability benefits;
and,
2. Whether claimant is entitled to certain medical
benefits pursuant to Iowa Code section 87.27.
FINDINGS OF FACT
The undersigned deputy industrial commissioner, having
reviewed all the evidence received, finds the following
facts:
Claimant was born on November 26, 1944, and at the time
of the hearing, was 49 years of age. He is married with
seven children and two stepchildren. Claimant quit high
school while he was in the tenth grade, but obtained a
general equivalency diploma while he was in the United
Page 2
States Navy. He received no formal education or training in
the Navy, but was assigned as a deck hand.
In 1986, claimant took math courses at Hawkeye
Technical School in Waterloo, Iowa.
Throughout the years, claimant has worked as a gas
station attendant, in a bakery, and in various manufacturing
plants located in Waterloo, Iowa.
In 1969, claimant became an ironworker and joined a
union, Local 89, in 1974. His duties as an ironworker
require him to lift and position iron, reinforce rods,
carry, place and tie steel rods into foundations and walls,
set and erect structural iron, and work on handrails,
stairwells and heavy rigging equipment. Apparently,
claimant has an outstanding reputation as a welder.
Claimant has enjoyed steady work as an ironworker, even
in the winter months up until his work-related accident
which occurred on January 15, 1991 (evidently, there was a
two year period of unemployment from 1985 to 1987 when
claimant was off of work for an injured knee).
On this date, claimant slipped on some ice and fell,
injuring his neck. For the next two weeks, claimant tried
to continue to work, but was in a great amount of pain.
Eventually, he sought treatment from a Lisa Royer, D.C. She
treated him for several months and diagnosed a C6-7
subluxation, complex with concurrent acute moderate
bilateral cerviocobrachial syndrome and tension headache
resulting from a traumatic sprain/strain whiplash injury.
She released claimant to return to work on March 25, 1991.
(Claimant's Exhibit 4)
The defendant insurance company then sent claimant to
the work injury rehabilitation center in Cedar Rapids. He
was treated by a Dr. Hart, who treated claimant until
January of 1992. Claimant then underwent a disability
evaluation at the center, administered by Kent Reeves, a
physical therapist. His notes are located at claimant's
exhibit 6, pages 35 through 41, but Mr. Reeves fails to
offer the actual percentage of functional impairment
claimant may possess. Dr. Hart's notes indicate that
claimant had plateaued at the rehabilitation center and a
recommended release from employment with a 70 pound lifting
restriction to the waist level and a 50 pound lifting
restriction to overhead work was imposed. (Cl. Ex. 6, p. 32)
While claimant was also sent to work for strategies, it
appears that a rehabilitation consultant merely monitored
his course of treatment and progress. (Cl. Ex. 5)
Claimant was also referred to the Mercy Medical Center
Pain Management Clinic by Dr. Hart. He continued to
complain of neck pain and tension headaches. Records from
the clinic indicate an MRI of the head yielded negative
results. (Cl. Ex. 2)
Eventually, in February of 1992, Dr. Hart was of the
Page 3
opinion that claimant had sustained a 5 percent impairment
to the lumbosacral spine and a 12 percent impairment to the
cervical spine. He stated that 6 percent was due to
preexisting spondylosis and 6 percent was related to the
work injury. (Cl. Ex. 1, p. 2)
In June of 1993, claimant was sent to Richard Flint
Neiman, M.D., for an independent medical examination. A
neurological examination revealed that claimant had weakness
in the upper extremities, which Dr. Neiman attributed to a
C7 nerve root distribution. An x-ray of the cervical spine
indicated that claimant had degenerative arthritis primarily
at the C4-5 level. He believed claimant was suffering from
a left C7 radiculopathy, and in light of the negative MRI
scans, recommended that additional myelograms and a CT scan
and EMG study of the neck be performed. Apparently, these
tests were administered without prior approval from the
insurance company. (Cl. Exs. 3 and 7)
Throughout much of 1992 and 1993, claimant has received
treatment from Ron Schultz, D.C., for treatment to his neck.
(Cl. Exs. 8 and 10)
Dr. Neiman was deposed for the case, and indicated that
claimant showed signs of a disc bulge at the C4-5 and C5-6
levels. He recommended that claimant cease work as an
ironworker due to the physical nature of the work. (Cl. Ex.
9)
Likewise, Dr. Schultz was deposed for the case, and
indicated that claimant should not do any work which would
cause strain or stress on the arms and shoulder muscles, as
this type of work would irritate the nerves and weaken the
ligaments causing further injury to the neck. Additionally,
he recommended that claimant should not return to his job as
an ironworker. (Cl. Ex. 10)
Don Schuettpelz, business manager for the union,
indicated that due to claimant's inability to expeditiously
perform the job duties required of an ironworker, he was
reluctant to assign claimant to any work. In fact, since
the injury, claimant has worked on less than ten
construction projects. Apparently, Mr. Schuettpelz has
heard complaints from workers about claimant's performance
on the job since the injury. Claimant has called Mr.
Schuettpelz on the phone constantly (one to three times per
week) asking for work, but again Mr. Schuettpelz will not
assign work because he is concerned about claimant's ability
to perform the job duties.
Jerry McVay, the president of defendant employer,
indicated that he is not in control of which ironworkers are
sent to him when he has construction projects. He has not
refused to hire claimant, and has not asked that claimant
work on his jobs, and has not requested that claimant not
work on any projects for him.
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to be addressed is whether claimant is
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entitled to temporary total, healing period benefits, or
permanent partial disability benefits.
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).
Dr. Hart, the authorized treating physician in this
case, indicated that claimant had sustained a 5 percent
permanent impairment to the low back. Additionally, he
assessed that claimant had sustained a 12 percent permanent
impairment to the cervical spine, but attributed 6 percent
to a preexisting cervical spondylosis and 6 percent
impairment related to the work injury in January of 1991.
Dr. Neiman indicates that claimant has a herniated disc in
the cervical spine. Obviously, claimant has sustained some
permanent impairment and as a result, would be entitled to
healing period benefits for the time he was off of work and
under a physician's care. This time period runs from
January 31, 1991 through August 25, 1991. Claimant is
therefore entitled to healing period benefits for this time
frame.
The next issue then to be determined is claimant's
industrial disability.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, 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
Page 5
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
By far, the most troubling aspect of this case is the
union's reluctance to place claimant in any job assignments.
While the undersigned does not believe that the employer
should be punished for the union's actions, neither should
the claimant suffer because the union is preventing him from
working. While the undersigned believes that the evidence
supports a finding that claimant has some permanent
impairment, she is unable to determine exactly what type of
work restrictions have been placed on claimant.
Claimant has not pursued any other line of employment,
although he has inquired of several positions, such as farm
help and managing convenience stores. However, he has not
been diligent in any type of a job search. Although the
undersigned can understand that claimant has for his entire
life been involved with labor intensive work, the workers'
Page 6
compensation system requires injured workers to take some
responsibility for accessing alternative employment.
Claimant has permanent impairment both to the low back
and the neck. These rating, when combined under the
combined value charts of the AMA Guides To The Evaluation of
Permanent Impairment total 11 percent impairment to the body
as a whole.
Based on all of the factors enumerated above, it is
found that claimant has sustained a 25 percent industrial
disability.
Finally, the last issue to be determined is whether
claimant is entitled to payment of medical expenses incurred
from Dr. Neiman and Dr. Schultz.
Iowa Code section 85.27 provides, in relevant part:
The employer, for all injuries compensable
under this chapter or chapter 85A, shall furnish
reasonable surgical, medical, dental, osteopathic,
chiropractic, podiatric, physical rehabilitation,
nursing, ambulance and hospital services and
supplies therefor and shall allow reasonably
necessary transportation expense incurred for such
services.
The undersigned finds that the defendant insurance
company made it quite clear that Dr. Neiman was only to
provide an evaluation of claimant's condition. In fact,
they specifically told claimant's attorney that they would
not be paying for any additional testing. In spite of this,
claimant scheduled additional tests, and as a result is
obligated to pay for those tests.
Additionally, claimant has undertaken medical treatment
from Dr. Schultz. Again, this is unauthorized care and as a
result claimant is responsible for payment of Dr. Schultz's
bills.
ORDER
THEREFORE, it is ordered:
That defendants shall pay claimant healing period
benefits from January 31, 1991 through August 25, 1991, at
the workers' compensation rate of four hundred five and
39/100 dollars (405.39) per week.
That defendants shall pay claimant one hundred twenty-
five (125) weeks of permanent partial disability benefits
commencing August 26, 1991, at the rate of four hundred five
and 39/100 dollars ($405.39) per week.
That accrued benefits shall be paid in a lump sum.
That defendants shall pay interest on the award as
governed by Iowa Code section 85.30.
Page 7
That defendants shall pay the costs of this action.
That claimant is responsible for payment of all medical
bills incurred as the result of unauthorized care.
That defendants shall file a claim activity report as
required by the agency.
That defendants shall receive credit on the award for
benefits previously paid.
Signed and filed this ____ day of April, 1994.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Matthew J Petrzelka
Attorney at Law
1200 MNB Bldg
Cedar Rapids IA 52401
Mr Elliott R McDonald
Attorney at Law
P O Box 2746
Davenport IA 52809