BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
JOHN J. TONE,
Claimant,
vs.
File No. 977785
FARMERS INSURANCE GROUP
OF COMPANIES,
A P P E A L
Employer,
D E C I S I O N
and
TRUCK INSURANCE EXCHANGE,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal.
ISSUES
Defendants state the following issues on appeal:
I. Did the deputy err in imposing the discovery
sanction of striking from the record all of defendants'
exhibits, testimony and cross-examination?
II. Did the deputy err in failing to impose sanctions
on claimant for claimant's acknowledged knowing
concealment of his medical treatment from discovery
when the medical evidence which was concealed was
highly relevant to claimant's claim of mental stress?
III. Has the claimant failed to prove that his mental
illness was factually and legally caused by his
employment?
IV. Did the deputy err in assigning claimant an
industrial disability of fifty percent?
V. As a matter of law, should the Roche approach of
comparing the work stress conditions of all employees
be overruled in favor of a test which only compare the
claimant's work stress with that of employees in the
same occupation?
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed February 28, 1994 are adopted as set forth below.
Segments designated by asterisks (*****) indicate portions of the
language from the proposed agency decision that have been
intentionally deleted and do not form a part of this final agency
decision. Segments designated by brackets ([ ]) indicate
language that is in addition to the language of the proposed
agency decision.
John Tone, 53 years of age at hearing, is a 1963 college
graduate with a Bachelors' Degree in Economics. Other than a
brief stint in the National Guard, claimant has worked his entire
career in the insurance industry, briefly as an underwriter, but
primarily as a claims adjuster. He began working for Farmers
Insurance Group, a multi-line company, in January 1966,
eventually becoming a senior multi-line adjuster. Mr. Tone has
not worked since taking sick leave on October 19, 1990.
Claimant was employed in the Cedar Rapids district, which
reported to a regional authority in Kansas. Until the very end
of his employment, claimant worked from an office in his home,
although this was not entirely satisfactory to the company, since
claimant barred agents from stepping on his property, once even
threatening prosecution.
The numerous personnel evaluations contained in the record
demonstrate that claimant was considered a productive and
valuable employee for many years. However, beginning in 1980,
Farmers began developing a new policy sales program known as the
Iowa Plan. This proved increasingly successful over the years,
resulting in greatly increased numbers of agents and policies in
force (PIF). However, the number of adjusters serving the
district was not increased. This resulted in a gradually
increasing work load for claimant.
Problems began to arise in 1984. Farmers instituted
mandatory use of a computerized auto damage appraisal program
known as audatex. Claimant clearly had trouble adapting to the
new system, as did at least one other agent who considered the
extra stress brought about by the mandatory use of this system as
"the final nail in his coffin" (leading to retirement). Claimant
***** [exhibits a] personality [that is] rigid, inflexible,
resistant to change or training, and [he is] generally convinced
that his experience over many years of service takes priority
over most other considerations, including the views of less-
experienced supervisors. In any event, claimant clearly resented
implementation of the audatex system.
The same year, claimant first developed physical symptoms
associated with stress. His family physician, Dr. Richard Rowe
eventually diagnosed irritable colon syndrome, stress. Claimant
was suffering abdominal spasms, nausea and diarrhea. Dr. Rowe's
associate, Robert L. Swaney, M.D., testified (by deposition on
May 14, 1992) that there is often a relationship between
irritable colon syndrome and stress, and that the probable cause
of claimant's 1984 symptoms was job related stress.
According to claimant's wife, Sharon Tone, claimant
continued to suffer recurrence of nervous symptoms after 1984,
including sleep disturbances, nightmares, and further cramping
and diarrhea. She credibly testified that claimant began losing
interest in outside activities and became introverted.
Ms. Tone also testified that the big change in claimant's
condition occurred in 1989 when he was placed sequentially under
two different supervisors. Claimant's prior supervisor, Vance
Werninger, had repeatedly requested additional adjusting help
from the regional office, but without success.
The second new supervisor, Randy Horn, is a former military
man and police officer. ***** Claimant and Mr. Horn clearly had a
severe personality conflict. Indeed, it was abundantly clear
from claimant's testimony that he continues to harbor feelings of
bitter hatred against Mr. Horn.
By 1990, claimant had engaged in some conduct clearly
evidencing his emotional fragility. Mr. Horn, on the other hand,
considered the problem merely one of "attitude." Claimant was
fearful for his job and was reprimanded. Horn, it appears, was
busily gathering negative information to be used against claimant
in the event of future litigation, which the company clearly
anticipated. For example, Larry Sparks (a district manager on
the sales agency side who testified by deposition on July 12,
1993) wrote to the regional office in August 1990 to (again)
report that more adjusters were needed; the divisional sales
manager promptly reprimanded Sparks due to concern "that they
might have to terminate Tone and will undoubtedly end up in
court," and stating that "region" was "most irate" that he had
given "credence to Tone's possible defense."
During the years leading up to 1990, it appears that
claimant's job performance and attitude did deteriorate along
with his health. The company grapevine apparently had it that
claimant engaged in sharp criticism of the company not only with
sales agents, but with customers. Claimant also manipulated
events to underline his claim of being overworked. For example,
Larry Sparks's daughter was involved in a personal injury motor
vehicle collision insured by Farmers. Claimant was assigned this
claim for adjustment, but delayed contacting the injured party,
which should have been given extremely high priority. Farmers
would prefer to establish quick rapport with injured insureds or
claimants, knowing that such people will typically seek legal
counsel if a satisfactory resolution of the claim is not reached
quickly. Farmers clearly abhors "attorney penetration" in claims
events.
Another factor adding perceived stress to claimant was
imposition of a personally guaranteed "24 hour contact" rule by
Randy Horn. Although 24 hour contact had long been a company
goal and guideline, it was not made a rigid rule until Mr. Horn's
appointment to the district.
***** Claims adjusting involves adversarial and frequently
confrontational contact with people who have suffered loss and
are seeking quick and generous compensation. The interests of
those individuals are diametrically opposed to the interest and
profit motive of an insurance carrier. Although claimant was a
very good adjuster for many years, he clearly found the work
stressful. Towards the end, he began engaging in avoidance
techniques, such as falsely pleading illness to break off an
appointment after driving ninety miles to contact a claimant.
This, of course, is extremely consistent with a diagnosis of
anxiety attacks, as is discussed below.
Randy Horn, incidentally, was not the only person with whom
claimant had a personality clash. While he was becoming more
introverted and anxious, he was ordered to move from his longtime
home office into a small space in the district office. Rightly
or wrongly, claimant found this request demeaning and disturbing
because he would have to be around other individuals with whom he
did not get along well.
In March 1990, claimant had, in his own words, a "breakdown"
and was off work through July 19. According to his wife,
claimant was hyperventilating, crying, unable to function, and
threatening suicide.
Treatment for stress proved helpful, and claimant returned
to work (now, in the sales office) on July 20. Mr. Werniger
agreed that the return to work should be gradual and claimant's
work load monitored. Unfortunately, after approximately one
week, Farmers began assigning substantial numbers of claims to
Mr. Tone and stress-related feelings and symptoms returned with a
vengeance.
On August 8, Randy Horn roundly criticized claimant in front
of another employee (Steven Gaul) while himself in an emotional
state. Claimant described Horn as nervous and angry and pacing
around the room swinging his arms. At this point, claimant just
plain "lost it." He began shaking uncontrollably,
hyperventilating, and stalked out of the office to walk off his
frustration. After several hours of searching, Sharon Tone found
claimant near his home, some seven miles from the office.
On October 15, Randy Horn placed claimant on a probationary
status. Claimant responded by requesting four weeks of vacation
he had accrued, but Horn denied the request (on appeal to region,
this decision was later reversed). Claimant again went on sick
leave and remains so to this date.
***** Claimant repeatedly, almost obsessively, twisted a
paper clip in a violent manner while testifying. Of course, it
is also noted that giving testimony is an inherently stressful
activity even for one not subject to major depressive episodes
and anxiety attacks.
Claimant's treating psychiatrist is Richard H. Rinehart,
M.D. Dr. Rinehart, board eligible not (yet) board certified,
testified by deposition on September 8, 1992.
Dr. Rinehart began treating claimant in October 1991. He
diagnosed major depressive disorder, single episode. Dr.
Rinehart believes anxiety is a symptom of depression itself; he
treats the depression, not the anxiety.
Dr. Rinehart does not believe claimant has reached maximum
medical and psychiatric improvement, and notes the following
depressive symptoms: depressed mood, insomnia, loss of interest
in pleasurable activities, anxiety attacks, agoraphobic symptoms
and irritability.
Asked whether claimant was capable of full time competitive
employment, Dr. Rinehart opined that claimant could seek work
different from his previous job (which "seemed to exacerbate
depressive anxiety symptoms") with restrictions: claimant should
not be exposed to a lot of public contacts or much interaction
with co-workers. Claimant should avoid large groups of people,
at least as a major component of his job.
Although patients with depression sometimes perceive events
and circumstances other than they might if not depressed, Dr.
Rinehart did not believe that claimant's perception of his
interpersonal relationships at work and conditions of employment
were a symptom of depression, as opposed to a cause or
exacerbation of that depression. Indeed, Dr. Rinehart specified
that claimant's work environment exacerbated the depressive
illness, although he was unable to state whether work conditions
actually caused the underlying depressive condition. Dr.
Rinehart did not find evidence in claimant's record of any
psychosocial stress factors other than employment, such as
marital or family problems. Claims adjusting work itself is
stressful and had exacerbated depressive symptoms wholly apart
from claimant's interpretation of job stress or later
interactions with others.
Claimant was evaluated by a psychologist, Samuel Bernstein,
Ph.D. Dr. Bernstein is head of an agency, the Metropolitan
Employment and Rehabilitation Service, and specializes in
vocational rehabilitation psychology. He also holds a license as
a counselor and is a board certified CRC, or certified
rehabilitation counselor. Dr. Bernstein first met claimant on
June 16, 1993 and testified by deposition on June 24.
Dr. Bernstein concluded that claimant was unable to return
to his previous type of employment due to his psychological
problems, which he saw more as in the nature of anxiety attacks,
as opposed to a depressive condition. Claimant has transferable
skills, but with his current communication problems, those skills
are mostly in simple clerical work.
Dr. Bernstein ordered a number of psychometric tests and
found claimant to be good in arithmetic, indicating potential
employment as a bookkeeper. Claimant is competitively
employable, but only if kept away from substantial interaction
with the public and co-workers. Dr. Bernstein also agreed that
claimant's condition was aggravated by work, and that returning
to that same work would be a "disaster."
Claimant was also seen for evaluation by Raymond R. Crowe,
M.D., a board certified psychiatrist who testified by deposition
on February 24, 1993. Dr. Crowe evaluated claimant on June 8,
1992.
Dr. Crowe found claimant to be mildly depressed, but was
unable to express an opinion as to the cause of his panic
attacks. In particular, because he believes that the field of
psychiatry has so far failed to establish an association or
causal link between psychosocial stress factors and anxiety
attacks, he had no opinion as to the cause or causes of
claimant's depressive disorder, but did not believe that the
illness itself was aggravated by work activity; again, based on
his view that depressive illness is autonomous illness, and that
there is no evidence that environmental circumstances alter the
course or the treatability of the illness.
Nonetheless, Dr. Crowe believed that claimant's perception
of the work environment affected the course of his illness,
although he did not believe that it would be helpful to know
anything about the details of the job in order to determine
whether claimant could return to work. No medical restrictions
were recommended.
For several reasons, the opinion of Dr. Rinehart, as
buttressed by the opinion of Dr. Bernstein, is entitled to
greater weight than the opinion of Dr. Crowe. Chief among these
is that Dr. Crowe believes claimant's conditions to be entirely
autonomous. Under his theory, no mental illness could apparently
ever be causally connected to work. ***** In addition, Dr.
Rinehart is a treating physician who has seen claimant over an
extended period, rather than only once. Presumably though, Dr.
Crowe would have the same opinion no matter how many times he saw
claimant, or any other worker claiming work related mental
injury.
Accordingly, it is found that claimant's condition of major
depressive disorder and anxiety attacks was, at least, aggravated
by employment conditions.
It is further held that claimant is capable of returning to
work, although not to employment as an insurance adjuster.
Claimant is currently not seeking work, since he feels that
employment for which he might now be suited, given his medical
restrictions, is beneath his dignity. Claimant's current
unemployed status is voluntary.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed February 28, 1994 are adopted as set forth below.
Segments designated by asterisks (*****) indicate portions of the
language from the proposed agency decision that have been
intentionally deleted and do not form a part of this final agency
decision. Segments designated by brackets ([ ]) indicate
language that is in addition to the language of the proposed
agency decision.
Claimant bears 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).
The standard for determining whether a mental injury arose
out of and in the course of employment was recently discussed in
Ohnemus v. John Deere Davenport Works, File No. 816947 (App.
Decn., February 26, 1990) and Kelley v. Sheffield Care Center,
File No. 872737 (App. Decn., October 31, 1991) as follows:
In order to prevail claimant must prove that he
suffered a non-traumatically caused mental injury that
arose out of and in the course of his employment. This
matter deals with what is referred to as a mental-
mental injury and does not deal with a mental condition
caused by physical trauma or physical condition caused
by mental stimulus. The supreme court in Schreckengast
v. Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985),
recognized that issues of causation can involve either
causation in fact or legal causation. As stated in
footnote 3 at 369 N.W.2d 810:
We have recognized that in both civil and
criminal actions causation in fact involves whether
a particular event in fact caused certain
consequences to occur. Legal causation presents a
question of whether the policy of the law will
extend responsibility to those consequences which
have in fact been produced by that event. State v.
Marti, 290 N.W.2d 570, 584-85 (Iowa 1980).
Causation in fact presents an issue of fact while
legal causation presents an issue of law. Id.
That language was the basis of the language in
Desgranges v. Dept of Human Services, (Appeal Decision,
August 19, 1988) which discussed that there must be
both medical and legal causation for a nontraumatic
mental injury to arise out of and in the course of
employment. While Desgranges used the term medical
causation the concept involved was factual causation.
Therefore, in this matter it is necessary for two
issues to be resolved before finding an injury arising
out of and in the course of employment - factual and
legal causation. Proving the factual existence of an
injury may be accomplished by either expert testimony
or nonexpert testimony.
....
Not only must claimant prove that his work was the
factual cause of his mental injury, claimant must also
prove that the legal cause of his injury was his work.
In order to prove this legal causation claimant must
prove that his temporary mental condition "resulted
from a situation of greater dimensions than the day to
day mental stresses and tensions which all employees
must experience." Swiss Colony v. Department of ICAR,
240 N.W.2d 128, 130 (Wisc. 1976).
Kelley v. Sheffield Care Center, File No. 872737 (App. Decn.,
October 31, 1991).
Based on the opinions of Dr. Rinehart and Dr. Bernstein,
claimant has met his burden of proof on the "factual causation"
test. His mental condition was aggravated by his employment with
Farmers Insurance Group.
This leaves the "legal causation" test. The commissioner
has recently ruled that claimant's work stress conditions must be
compared with the conditions of all employees in general, not
those employees in the same occupation. Roche v. Dept. of
Community Corrections, (App. Decn., June 17, 1993).
According to claimant, the stress he felt came in four
areas: overload, "improper" management, management "harassment,"
and the job itself, which involved constant adversarial contact
with the public.
***** Claimant ***** has pointed out that there were
approximately seven agents in his district in 1966, and over 30
in 1990. Thirty agents clearly produced more PIF and more
resultant claims. Yet, there were no additional adjusters. Mr.
Werniger and Mr. Sparks both appealed to regional headquarters
for additional adjusters, requests that fell on deaf ears. *****
[The same evidence would relate to his claim of] "improper"
management, or at least management that subjected claimant to
unnecessary stress. Claimant's allegations of "harassment" are
less well founded, since his perceptions are questionable, both
due to his depressive and anxious condition and his personal
emnity directed toward Randy Horn. *****
[In order to satisfy the "legal test," claimant must show
that the work stress he experienced was greater than the day-to-
day emotional strain and tension which all employees experience.
Claimant's stressors do not rise to the level of stress greater
than that experienced by all employees. Being required to adapt
to a new computer system is a common development in the current
workplace. Claimant may not have liked the process of converting
to the new system, but any stress involved in doing so is
prevalent among all workers. Similarly, a personality clash with
a supervisor is not an uncommon experience in the workplace, and
again does not rise to the level of stress greater than that
experienced by other workers. Claimant's workload did increase
over the span of several years, from the 1960s to the 1990s.
There was not sufficient evidence to show that the workload was
overwhelming, however. Although the increased workload was
undoubtedly a source of stress, the evidence does not indicate
that the stress was of such a volume or intensity that it was
greater than that experienced by other workers in occupations
where the workload, at least in terms of number of clients or
policies, for example, has increased. An increased workload may
be a factor of stress, but the increase described in this case
does not rise to the level required by the legal test. Finally,
being required to work at the company's offices rather than at
home, although not as convenient to claimant, was certainly not a
stress greater than that experienced by other workers, as working
at a location other than one's home is the norm. Even when all
the above factors and the other factors described by claimant are
considered in combination, claimant has failed to establish that
his current mental condition was caused or aggravated by
workplace stress greater than that experienced by all employees.]
Based on all of the evidence, claimant [has failed to]
establish that he was subjected to stress conditions at work
greater than and more damaging than those of every day employment
life for employees in general. *****
*****
In light of this conclusion, defendants' appeal issues on
sanctions are moot.
WHEREFORE, the decision of the deputy is reversed.
ORDER
THEREFORE, it is ordered:
That claimant shall take nothing from these proceedings.
That defendants shall pay the costs of this matter including
the transcription of the hearing.
Signed and filed this ____ day of November, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert R. Rush
Mr. Matthew Nagle
Attorneys at Law
P.O. Box 2457
Cedar Rapids, Iowa 52406
Mr. James E. Shipman
Attorney at Law
115 Third St. SE, Ste 1200
Cedar Rapids, Iowa 52401
2204; 1108.20
Filed November 30, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
JOHN J. TONE,
Claimant,
vs.
File No. 977785
FARMERS INSURANCE GROUP
OF COMPANIES,
A P P E A L
Employer,
D E C I S I O N
and
TRUCK INSURANCE EXCHANGE,
Insurance Carrier,
Defendants.
_________________________________________________________________
2204; 1108.20
Claimant, a longtime insurance adjuster, developed disabling
mental impairment. Claimant cited as stressors: a personality
conflict with a supervisor; having to adapt to a new computer
system; "improper management;" "harassment;" and being required
to work at the company's offices instead of at home. Claimant
held to have met the "medical" test, but held not to have
satisfied the "legal" test to show that the stress he underwent
was greater than that experienced by all employees.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JOHN J. TONE, :
:
Claimant, :
: File No. 977785
vs. :
A R B I T R A T I O N
FARMERS INSURANCE GROUP OF :
COMPANIES, D E C I S I O N
:
Employer, :
:
and :
:
TRUCK INSURANCE EXCHANGE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a contested case upon the petition in
arbitration of claimant John J. Tone against his employer,
Farmers Insurance Group and its insurance carrier, Truck
Insurance Exchange. Mr. Tone asserts that he sustained a
mental injury resulting from work related mental stimuli
causing him to leave work after March 7, 1990. He asserts
that he sustained compensable injury on that date. A
hearing was accordingly held in Cedar Rapids, Iowa on July
13, 1993. Witnesses at hearing included claimant, Gary
Liedtke, Sharon Tone, Kenneth Allers, David Mitchell,
William Vance Werniger and Randall Horn. Claimant's
exhibits 1-19 and 21-32 were received into evidence along
with defendants' exhibits A-QQ and TT through BBB.
Claimant's exhibits 16B and 20 and defendants' exhibit SS
were excluded upon objection. An objection to defendants'
exhibit RR was taken under advisement and is at this time
ruled moot. See below.
Near the end of his direct examination, claimant
disclosed that he had seen a physician, Dr. Payvandi, for a
high blood pressure problem and had intentionally failed to
disclose this treatment because he didn't want "insurance
companies or anybody else screwing with this." Defendants
thereupon moved for sanctions. Upon claimant's
representation that he had seen Dr. Payvandi in June 1993,
probably after both parties' discovery deadlines anyway, the
motion was overruled. However, claimant was ordered to
provide a full release to defendants, who were given thirty
days to investigate and file an additional motion for
sanctions should prejudice appear.
Defendants filed such a motion on August 11, 1993. The
Page 2
motion pointed out that claimant, contrary to his testimony,
was seen by Dr. Payvandi on April 14, April 22 and May 27,
1993 and that a nuclear scan of the kidneys had revealed
diminished renal function on the right. Dr. Payvandi
suggested an abdominal aortography and renal arteriogram and
charted that claimant was "somewhat apprehensive about it,
however, and he wants to wait."
The motion for sanctions should be overruled for
several reasons. First, defendants' proper remedy was to
move for continuance as well as imposition of sanctions
under Blink v. McNabb, 287 N.W.2d 596 (Iowa 1980).
Sanctions short of outright dismissal might properly be
fashioned after knowing what Dr. Payvandi's records contain.
As it turned out, this is essentially the relief that was
granted. Defendants' present motion does not seek reopening
of the record. While it is obvious that concern over a
serious health problem is stressful and can exacerbate
mental illness, claimant was clearly not aware of this
problem until April 22, 1993. Claimant last worked in 1990
and his symptoms go back to 1984. In the scheme of things,
this additional source of stress is fairly insignificant
because it is of such recent date. All the medical opinions
pre-date April 22, 1993, when claimant was unaware of any
serious renal condition. Also, claimant properly points out
in his resistance, that the two interrogatories upon which
defendants rely, numbers 15 and 19, were specifically
objected to. No motion to compel was presented to the
agency. Iowa Rule of Civil Procedure 126(a) provides that
an interrogatory shall be answered unless objected to. In
both cases, claimant went on to answer the interrogatory
"without waiving" his objections. Counsel for claimant did
not learn of the Payvandi treatment until claimant's
voluntary disclosure at trial. This writer would absolutely
not approve the practice of simultaneously objecting to and
answering an interrogatory "without waiving the objection"
if the answer were materially false or incomplete when made.
Such is not the case here. In any event, under Iowa
R.Civ.P. 122(d), a party who has responded to a request for
production with a response that was complete when made is
under no duty to supplement except as to the identity and
location of persons having knowledge of discoverable
matters, the identity of each person expected to be called
at trial, or if the party knows the response was incorrect
when made or circumstances are such that a failure to amend
the response is in substance a knowing concealment. It is
noted, though, that claimant's conduct very arguably fits
the latter category. Indeed, even though the motion for
sanctions is hereby overruled, it is recognized that
claimant himself understood and believed his conduct to be
wrongful. This has been taken into account and has a
substantial adverse impact on claimant's credibility.
On November 5, 1993, claimant moved for sanctions based
on claimed discovery misconduct by defendants. Claimant's
interrogatory number five asked whether any written or oral
Page 3
statements had been obtained from any person "regarding this
action" and if so, seeking other details. Defendants'
answer failed to disclose that Randy Horn (claimant's last
supervisor and chief antagonist) took statements from five
other employees in October 1990. Horn, who did not sign the
original answer to interrogatories, disclosed having taken
statements during his deposition on February 16, 1993,
following which claimant filed a second and then a third
request for supplementation of discovery responses on March
24 and May 27. Claimant's counsel also wrote defense
counsel on April 15, 1993, to specifically request advice
about those statements recorded by Horn. On June 18, 1993,
defense counsel James Peters wrote that defendants were "not
able to locate any other tapes or transcripts."
However, on October 28, 1993, long after this case had
been submitted, defendants belatedly disclosed that cassette
tapes of these statements had been "discovered" in the
regional claims office of Farmers Insurance Group on
September 15, 1993. Defendants have offered no explanation
for why it took in excess of one month to disclose this
belated "discovery", even though Ann Gray testified in her
affidavit that she had been aware in the summer of 1993 that
such statements had been made and were being sought by
defense counsel.
Defendants resist the motion for imposition of
sanctions on several grounds. For example, they assert that
an objection was lodged to producing any statements as being
privileged under Iowa Rule of Civil Procedure 122(c) as
being prepared in anticipation of litigation. This
argument, however, is untenable. The false answer was in
response to an interrogatory (which was not objected to),
not a request for production of documents. Had the
existence of these statements been disclosed, claimant could
have sought production under the provisions of the rule, and
any dispute considered by the agency. By failing to
disclose that such statements had even been taken,
defendants denied claimant any opportunity to seek that
relief. Defendants further point out that the existence of
these statements was revealed in Randy Horn's deposition in
April. This argument overlooks the disagreeable fact that
defendants subsequently failed to correct the false answer
to interrogatory five in the face of multiple requests for
supplementation, doing so only after the evidentiary record
was closed. Defendants also maintain that the statements
are protected from discovery under rule 122(c). Very
probably they are. However, had the existence of these
statements been properly disclosed in the face of a specific
interrogatory and several requests for supplementation,
claimant could have challenged that claim under the rule, by
showing substantial need of the materials and inability to
obtain the substantial equivalent by other means. Claimant
may or may not have succeeded, but what is significant is
that he was denied the opportunity to try through wrongful
conduct on the part of these defendants.
Page 4
Accordingly, sanctions are in order. In determining
the appropriate sanction, it is proper to take into account
this agency's clear interest in protecting the integrity of
the adjudicatory process and the openness and honesty of
discovery. Defendants' conduct in this case is egregious.
The appropriate sanction is to strike from the record each
and every one of defendants' exhibits, the testimony of
witnesses Allers, Mitchell, Werniger and Horn, and the
cross-examination of claimant and his witnesses. It is so
ordered. Accordingly, the record in this case consists of
the direct examination of claimant, Gary Liedtke and Sharon
Tone and claimant's exhibits 1-32, inclusive.
ISSUES
The parties have stipulated to the following:
1. An employment relationship existed at
the time of the alleged injury;
2. Claimant was off work from March 8, 1990
through July 19, 1990 and October 19, 1990
through the date of hearing;
3. Permanent disability, if any, should be
compensated industrially;
4. The proper rate of compensation is
$540.33 per week;
5. Disputed medical treatment and the cost
thereof is fair and reasonable and causally
connected to the medical condition upon
which the claim is based; and,
6. Defendants are entitled to credit under
Iowa Code section 85.38(2) for payment of
sick pay/disability benefits in the amount
$51,171.00.
Issues presented for resolution include;
1. Whether claimant sustained injury
arising out of and in the course of
employment on March 7, 1990;
2. Whether the injury caused temporary or
permanent disability;
3. The extent of temporary total disability
or healing period;
4. The extent and commencement date of
permanent disability;
5. Entitlement to medical benefits under
Iowa Code section 85.27; and,
6. Entitlement to an independent evaluation
Page 5
under Iowa Code section 85.39.
With respect to medical benefits, defendants disputed
whether expenses were causally connected to the work injury
and whether they were authorized. The authorization defense
was ruled invalid at hearing, because defendants forfeited
the right to control the course of treatment by denying
liability on the claim.
FINDINGS OF FACT
John Tone, 53 years of age at hearing, is a 1963
college graduate with a Bachelors' Degree in Economics.
Other than a brief stint in the National Guard, claimant has
worked his entire career in the insurance industry, briefly
as an underwriter, but primarily as a claims adjuster. He
began working for Farmers Insurance Group, a multi-line
company, in January 1966, eventually becoming a senior
multi-line adjuster. Mr. Tone has not worked since taking
sick leave on October 19, 1990.
Claimant was employed in the Cedar Rapids district,
which reported to a regional authority in Kansas. Until the
very end of his employment, claimant worked from an office
in his home, although this was not entirely satisfactory to
the company, since claimant barred agents from stepping on
his property, once even threatening prosecution.
The numerous personnel evaluations contained in the
record demonstrate that claimant was considered a productive
and valuable employee for many years. However, beginning in
1980, Farmers began developing a new policy sales program
known as the Iowa Plan. This proved increasingly successful
over the years, resulting in greatly increased numbers of
agents and policies in force (PIF). However, the number of
adjusters serving the district was not increased. This
resulted in a gradually increasing work load for claimant.
Problems began to arise in 1984. Farmers instituted
mandatory use of a computerized auto damage appraisal
program known as audatex. Claimant clearly had trouble
adapting to the new system, as did at least one other agent
who considered the extra stress brought about by the
mandatory use of this system as "the final nail in his
coffin" (leading to retirement). Claimant's demeanor and
testimony left this observer with the strong impression that
he is by personality rigid, inflexible, resistant to change
or training, and generally convinced that his experience
over many years of service takes priority over most other
considerations, including the views of less-experienced
supervisors. In any event, claimant clearly resented
implementation of the audatex system.
The same year, claimant first developed physical
symptoms associated with stress. His family physician, Dr.
Richard Rowe eventually diagnosed irritable colon syndrome,
stress. Claimant was suffering abdominal spasms, nausea and
diarrhea. Dr. Rowe's associate, Robert L. Swaney, M.D.,
testified (by deposition on May 14, 1992) that there is
often a relationship between irritable colon syndrome and
Page 6
stress, and that the probable cause of claimant's 1984
symptoms was job related stress.
According to claimant's wife, Sharon Tone, claimant
continued to suffer recurrence of nervous symptoms after
1984, including sleep disturbances, nightmares, and further
cramping and diarrhea. She credibly testified that claimant
began losing interest in outside activities and became
introverted.
Ms. Tone also testified that the big change in
claimant's condition occurred in 1989 when he was placed
sequentially under two different supervisors. Claimant's
prior supervisor, Vance Werninger, had repeatedly requested
additional adjusting help from the regional office, but
without success.
The second new supervisor, Randy Horn, is a former
military man and police office who generally impressed this
observer as a rigid, authoritarian, and fervently
pro-company individual. Claimant and Mr. Horn clearly had a
severe personality conflict. Indeed, it was abundantly
clear from claimant's testimony that he continues to harbor
feelings of bitter hatred against Mr. Horn.
By 1990, claimant had engaged in some conduct clearly
evidencing his emotional fragility. Mr. Horn, on the other
hand, considered the problem merely one of "attitude."
Claimant was fearful for his job and was reprimanded. Horn,
it appears, was busily gathering negative information to be
used against claimant in the event of future litigation,
which the company clearly anticipated. For example, Larry
Sparks (a district manager on the sales agency side who
testified by deposition on July 12, 1993) wrote to the
regional office in August 1990 to (again) report that more
adjusters were needed; the divisional sales manager promptly
reprimanded Sparks due to concern "that they might have to
terminate Tone and will undoubtedly end up in court," and
stating that "region" was "most irate" that he had given
"credence to Tone's possible defense."
During the years leading up to 1990, it appears that
claimant's job performance and attitude did deteriorate
along with his health. The company grapevine apparently had
it that claimant engaged in sharp criticism of the company
not only with sales agents, but with customers. Claimant
also manipulated events to underline his claim of being
overworked. For example, Larry Sparks's daughter was
involved in a personal injury motor vehicle collision
insured by Farmers. Claimant was assigned this claim for
adjustment, but delayed contacting the injured party, which
should have been given extremely high priority. Farmers
would prefer to establish quick rapport with injured
insureds or claimants, knowing that such people will
typically seek legal counsel if a satisfactory resolution of
the claim is not reached quickly. Farmers clearly abhors
"attorney penetration" in claims events.
Another factor adding perceived stress to claimant was
imposition of a personally guaranteed "24 hour contact" rule
Page 7
by Randy Horn. Although 24 hour contact had long been a
company goal and guideline, it was not made a rigid rule
until Mr. Horn's appointment to the district.
And, let it not be forgotten that claims adjusting is
itself an inherently stressful line of endeavor. Claims
adjusting involves adversarial and frequently
confrontational contact with people who have suffered loss
and are seeking quick and generous compensation. The
interests of those individuals are diametrically opposed to
the interest and profit motive of an insurance carrier.
Although claimant was a very good adjuster for many years,
he clearly found the work stressful. Towards the end, he
began engaging in avoidance techniques, such as falsely
pleading illness to break off an appointment after driving
ninety miles to contact a claimant. This, of course, is
extremely consistent with a diagnosis of anxiety attacks, as
is discussed below.
Randy Horn, incidentally, was not the only person with
whom claimant had a personality clash. While he was
becoming more introverted and anxious, he was ordered to
move from his longtime home office into a small space in the
district office. Rightly or wrongly, claimant found this
request demeaning and disturbing because he would have to be
around other individuals with whom he did not get along
well.
In March 1990, claimant had, in his own words, a
"breakdown" and was off work through July 19. According to
his wife, claimant was hyperventilating, crying, unable to
function, and threatening suicide.
Treatment for stress proved helpful, and claimant
returned to work (now, in the sales office) on July 20. Mr.
Werniger agreed that the return to work should be gradual
and claimant's work load monitored. Unfortunately, after
approximately one week, Farmers began assigning substantial
numbers of claims to Mr. Tone and stress-related feelings
and symptoms returned with a vengeance.
On August 8, Randy Horn roundly criticized claimant in
front of another employee (Steven Gaul) while himself in an
emotional state. Claimant described Horn as nervous and
angry and pacing around the room swinging his arms. At this
point, claimant just plain "lost it." He began shaking
uncontrollably, hyperventilating, and stalked out of the
office to walk off his frustration. After several hours of
searching, Sharon Tone found claimant near his home, some
seven miles from the office.
On October 15, Randy Horn placed claimant on a
probationary status. Claimant responded by requesting four
weeks of vacation he had accrued, but Horn denied the
request (on appeal to region, this decision was later
reversed). Claimant again went on sick leave and remains so
to this date.
While testifying, claimant appeared to this observer to
be a basket of nerves. Make that, an angry basket of
Page 8
nerves. By way of illustration, claimant repeatedly, almost
obsessively, twisted a paper clip in a violent manner while
testifying. Of course, it is also noted that giving
testimony is an inherently stressful activity even for one
not subject to major depressive episodes and anxiety
attacks.
Claimant's treating psychiatrist is Richard H.
Rinehart, M.D Dr. Rinehart, board eligible not (yet) board
certified, testified by deposition on September 8, 1992.
Dr. Rinehart began treating claimant in October 1991.
He diagnosed major depressive disorder, single episode. Dr.
Rinehart believes anxiety is a symptom of depression itself;
he treats the depression, not the anxiety.
Dr. Rinehart does not believe claimant has reached
maximum medical and psychiatric improvement, and notes the
following depressive symptoms: depressed mood, insomnia,
loss of interest in pleasurable activities, anxiety attacks,
agoraphobic symptoms and irritability.
Asked whether claimant was capable of full time
competitive employment, Dr. Rinehart opined that claimant
could seek work different from his previous job (which
"seemed to exacerbate depressive anxiety symptoms") with
restrictions: claimant should not be exposed to a lot of
public contacts or much interaction with co-workers.
Claimant should avoid large groups of people, at least as a
major component of his job.
Although patients with depression sometimes perceive
events and circumstances other than they might if not
depressed, Dr. Rinehart did not believe that claimant's
perception of his interpersonal relationships at work and
conditions of employment were a symptom of depression, as
opposed to a cause or exacerbation of that depression.
Indeed, Dr. Rinehart specified that claimant's work
environment exacerbated the depressive illness, although he
was unable to state whether work conditions actually caused
the underlying depressive condition. Dr. Rinehart did not
find evidence in claimant's record of any psychosocial
stress factors other than employment, such as marital or
family problems. Claims adjusting work itself is stressful
and had exacerbated depressive symptoms wholly apart from
claimant's interpretation of job stress or later
interactions with others.
Claimant was evaluated by a psychologist, Samuel
Bernstein, Ph.D.. Dr. Bernstein is head of an agency, the
Metropolitan Employment and Rehabilitation Service, and
specializes in vocational rehabilitation psychology. He
also holds a license as a counselor and is a board certified
CRC, or certified rehabilitation counselor. Dr. Bernstein
first met claimant on June 16, 1993 and testified by
deposition on June 24.
Dr. Bernstein concluded that claimant was unable to
return to his previous type of employment due to his
psychological problems, which he saw more as in the nature
Page 9
of anxiety attacks, as opposed to a depressive condition.
Claimant has transferable skills, but with his current
communication problems, those skills are mostly in simple
clerical work.
Dr. Bernstein ordered a number of psychometric tests
and found claimant to be good in arithmetic, indicating
potential employment as a bookkeeper. Claimant is
competitively employable, but only if kept away from
substantial interaction with the public and co-workers. Dr.
Bernstein also agreed that claimant's condition was
aggravated by work, and that returning to that some work
would be a "disaster."
Claimant was also seen for evaluation by Raymond R.
Crowe, M.D., a board certified psychiatrist who testified by
deposition on February 24, 1993. Dr. Crowe evaluated
claimant on June 8, 1992.
Dr. Crowe found claimant to be mildly depressed, but
was unable to express an opinion as to the cause of his
panic attacks. In particular, because he believes that the
field of psychiatry has so far failed to establish an
association or causal link between psychosocial stress
factors and anxiety attacks. He had no opinion as to the
cause or causes of claimant's depressive disorder, but did
not believe that the illness itself was aggravated by work
activity; again, based on his view that depressive illness
is autonomous illness, and that there is no evidence that
environmental circumstances alter the course or the
treatability of the illness.
Nonetheless, Dr. Crowe believed that claimant's
perception of the work environment affected the course of
his illness, although he did not believe that it would be
helpful to know anything about the details of the job in
order to determine whether claimant could return to work.
No medical restrictions were recommended.
For several reasons, the opinion of Dr. Rinehart, as
buttressed by the opinion of Dr. Bernstein, is entitled to
greater weight than the opinion of Dr. Crowe. Chief among
these is that Dr. Crowe believes claimant's conditions to be
entirely autonomous. Under his theory, no mental illness
could apparently ever be causally connected to work. This
opinion is contrary to agency experience and law. See, for
example, Roach v. Dept. of Community Corrections, (Appeal
Decision, June 17, 1993). In addition, Dr. Rinehart is a
treating physician who has seen claimant over an extended
period, rather than only once. Presumably though, Dr. Crowe
would have the same opinion no matter how many times he saw
claimant, or any other worker claiming work related mental
injury.
Accordingly, it is found that claimant's condition of
major depressive disorder and anxiety attacks was, at least,
aggravated by employment conditions.
It is further held that claimant is capable of
returning to work, although not to employment as an
Page 10
insurance adjuster. Claimant is currently not seeking work,
since he feels that employment for which he might now be
suited, given his medical restrictions, is beneath his
dignity. Claimant's current unemployed status is voluntary.
ANALYSIS AND CONCLUSIONS OF LAW
Claimant bears 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).
The standard for determining whether a mental injury
arose out of and in the course of employment was recently
discussed in Ohnemus v. John Deere Davenport Works, File No.
816947 (App. Decn., February 26, 1990) and Kelley v.
Sheffield Care Center, File No. 872737 (App. Decn., October
31, 1991) as follows:
In order to prevail claimant must prove that he
suffered a non-traumatically caused mental injury
that arose out of and in the course of his
employment. This matter deals with what is
referred to as a mental-mental injury and does not
deal with a mental condition caused by physical
trauma or physical condition caused by mental
stimulus. The supreme court in Schreckengast v.
Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985),
recognized that issues of causation can involve
either causation in fact or legal causation. As
stated in footnote 3 at 369 N.W.2d 810:
We have recognized that in both civil and
criminal actions causation in fact involves
whether a particular event in fact caused
certain consequences to occur. Legal causation
presents a question of whether the policy of
the law will extend responsibility to those
consequences which have in fact been produced
by that event. State v. Marti, 290 N.W.2d 570,
584-85 (Iowa 1980). Causation in fact presents
an issue of fact while legal causation presents
an issue of law. Id.
That language was the basis of the language in
Desgranges v. Dept of Human Services, (Appeal
Decision, August 19, 1988) which discussed that
there must be both medical and legal causation for
a nontraumatic mental injury to arise out of and
in the course of employment. While Desgranges
used the term medical causation the concept
involved was factual causation. Therefore, in
this matter it is necessary for two issues to be
resolved before finding an injury arising out of
and in the course of employment - factual and
legal causation. Proving the factual existence of
an injury may be accomplished by either expert
testimony or nonexpert testimony.
Page 11
....
Not only must claimant prove that his work was
the factual cause of his mental injury, claimant
must also prove that the legal cause of his injury
was his work. In order to prove this legal
causation claimant must prove that his temporary
mental condition "resulted from a situation of
greater dimensions than the day to day mental
stresses and tensions which all employees must
experience." Swiss Colony v. Department of ICAR,
240 N.W.2d 128, 130 (Wisc. 1976).
Kelley v. Sheffield Care Center, File No. 872737 (App.
Decn., October 31, 1991).
Based on the opinions of Dr. Rinehart and Dr.
Bernstein, claimant has met his burden of proof on the
"factual causation" tests. His mental condition was
aggravated by his employment with Farmers Insurance Group.
This leaves the "legal causation" test. The
commissioner has recently ruled that claimant's work stress
conditions must be compared with the conditions of all
employees in general, not those employees in the same
occupation. Roach v. Dept. of Community Corrections, (App.
Decn., June 17, 1993).
According to claimant, the stress he felt came in four
areas: overload, "improper" management, management
"harassment," and the job itself, which involved constant
adversarial contact with the public.
Based on his long experience, claimant himself is in a
good position to testify as to whether his workload was
excessive. He has pointed out that there were approximately
seven agents in his district in 1966, and over 30 in 1990.
Thirty agents clearly produced more PIF and more resultant
claims. Yet, there were no additional adjusters. Mr.
Werniger and Mr. Sparks both appealed to regional
headquarters for additional adjusters, requests that fell on
deaf ears. Claimant has established that he was subjected
to a stressful overload of work. This of course tends to
show what he calls "improper" management, or at least
management that subjected claimant to unnecessary stress.
Claimant's allegations of "harassment" are less well
founded, since his perceptions are questionable, both due to
his depressive and anxious condition and his personal emnity
directed towards Randy Horn. Lastly, claimant prevails
because the job itself is inherently stressful, more so than
the stress normally to be expected in the case of employees
in general. Most employees are not placed in
confrontational and adversarial relationships with the
public at large on a daily basis, with perhaps 50-70 cases
per month to be processed. This is, of course, an inherent
part of insurance adjusting, but the comparison serves to
point the wisdom of the Roach approach. For example, let us
assume that the widespread reports of high stress levels
affecting air traffic controllers are accurate. If so, it
is predictable that the profession of air traffic controller
Page 12
will result in an abnormally high number of mental injuries.
Again, if this is so, why should the industry not bear the
cost of disproportionate injuries, much as the cement mixing
industry may predictably be seen to cause a disproportionate
number of back injuries.
Based on all of the evidence, claimant established that
he was subjected to stress conditions at work greater than
and more damaging than those of every day employment life in
employees in general. Therefore, claimant, by a
preponderance of the record evidence, established both
factual and legal causation.
Under Iowa Code section 85.34(1), healing period is
compensable beginning on the date of injury and continuing
until the employee has returned to work, it is medically
indicated that significant improvement from the injury is
not anticipated, or until the employee is medically capable
of returning to substantially similar employment, whichever
first occurs.
Claimant has not returned to work, he is not medically
capable of returning to substantially similar employment,
and he has yet to reach maximum medical improvement
according to Dr. Rinehart. Nonetheless, claimant is capable
of returning to work, although at a reduced and presumably
less remunerative position. The writer has considered
awarding a running healing period, but finds this would be
unfair to defendants. Claimant is at the present time
voluntarily unemployed because of his refusal to seek work
commensurate with his medical restrictions. Claimant
should, accordingly, be thought of as having constructively
returned to work, because he could if he wanted. Healing
period benefits shall be awarded from March 8, 1990 through
July 19, 1990 and October 19, 1990 through September 8,
1992, the date of Dr. Rinehart's deposition. At the time of
this deposition, claimant was capable of returning to some
employment. His subsequent employment is voluntarily in
nature.
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 the
employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Page 13
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
Claimant's entire work experience is in insurance
underwriting and adjusting. At the present time, he cannot
return to either position due to his medical restrictions
against extensive public or co-worker contact. Claimant is,
however, capable of clerical work, bookkeeping or other
office work not involving substantial public contact. It is
predictable that such work will pay less than insurance
adjusting, especially given that claimant had, through his
long years of experience, reached earnings equivalent to
$915.00 per week per the parties' rate stipulation.
Claimant's age tends to leave him unsuited for advanced
retraining, but it is noted that he holds a college degree
and has many years of experience as a productive and valued
employee. Considering these factors in specific and the
record otherwise in general, it is held that claimant has
sustained a permanent industrial disability equivalent to 50
percent of the body as a whole, or 250 weeks.
Page 14
ORDER
THEREFORE, IT IS ORDERED:
Defendants shall pay intermittent healing period
benefits at the rate of five hundred forty and 33/100
dollars ($540.33) from March 8, 1990 through July 19, 1990
and October 19, 1990 through September 8, 1992 (117.714
weeks).
Defendants shall pay two hundred fifty (250) weeks of
permanent partial disability benefits at the stipulated rate
commencing September 9, 1992.
Defendants shall pay the medical expenses set forth on
exhibit 21, except for Dr. Bernstein's bill, which is
independently compensable as an independent evaluation to
which claimant is entitled under Iowa Code section 85.39.
All accrued benefits shall be paid in a lump sum
together with statutory interest.
Defendants shall have credit in the sum of fifty-one
thousand one hundred seventy-one and no/100 dollars
($51,171.00) for sick pay/disability benefits under Iowa
Code section 85.38(2).
Costs of this action are assessed to defendants.
Signed and filed this ____ day of February, 1994.
________________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Robert R Rush
Mr Matthew Nagle
Attorneys at Law
526 Second Avenue SE
P O Box 2457
Cedar Rapids Iowa 52406
Mr James E Shipman
Attorney at Law
1200 Firstar Bank Building
Cedar Rapids Iowa 52401
2901;3700;2204;1108.20
Filed February 28, 1994
DAVID R. RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JOHN J. TONE, :
:
Claimant, :
: File No. 977785
vs. :
A R B I T R A T I O N
FARMERS INSURANCE GROUP OF :
COMPANIES, : D E C I S I O N
:
Employer, :
:
and :
:
TRUCK INSURANCE EXCHANGE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
2901; 3700
In "mental-mental" case, claimant for the first time
disclosed the existence of another doctor during his direct
examination at hearing, because he did not want defendants
"screwing with" that valued physician. Defendants'
immediate motion for sanctions was denied, largely because
claimant indicated he had seen the physician for the first
time after discovery deadlines had closed. However,
claimant was ordered to provide defendants a patient waiver,
and defendants were granted 30 days to move for further
relief if an examination of the doctors' records established
prejudice.
Defendants so moved after examining the medical records.
However, the motion was overruled in the arbitration
decision. First, defendants' proper remedy was to move for
continuance along with imposition of sanctions, which they
did not do (although the effect of the ruling was largely
the same). Defendants' current motion did not seek
reopening of the record. Although the doctor's records were
clearly relevant to this dispute (a serious health problem,
such as disclosed, is an independent source of stress), it
was of comparatively minor impact in this case, where
claimant last worked in 1990 and had symptoms dating back to
1984. Claimant first learned of the serious health problem
on April 22, 1993. Also, claimant objected to the two
interrogatories which defendants rely upon to show discovery
misconduct. No motion to compel was presented to the
Page 2
agency. Iowa R.Civ.P. 126(a) provides that an interrogatory
shall be answered "unless objected to." In both cases,
claimant went on to answer the interrogatory "without
waiving" his objections. The practice of simultaneously
objecting to and answering an interrogatory would not be
approved of if the answer were materially false or
incomplete when made, but such was not the case here.
Nonetheless, claimant himself recognized that his secretive
conduct was wrongful; this was taken into account and had a
substantial adverse impact on his credibility.
After the record was closed, claimant also moved for
sanctions based on claimed discovery misconduct. An
interrogatory to defendants asked whether any written or
oral statements had been obtained, and if so, seeking other
details. Defendants' answer failed to disclose that
claimant's last supervisor took taped statements from five
other employees at about the time claimant left work. When
that supervisor indicated that such statements had been
taken during his deposition, claimant twice formally and
once informally requested supplementation. Defendants wrote
only that they were "not able to locate" any tapes or
transcripts. However, three months after the record was
closed, defendants for the first time disclosed that
cassette tapes of the statements had been "discovered" one
month earlier. Defendants offered no explanation for the
one month delay in disclosure. Although the statements
might have been ruled protected as work product under Iowa
R.Civ.P. 122(c), claimant was foreclosed from litigating the
discoverablility of those statements by defendants' wrongful
failure to disclose that they existed. This wrongful
conduct continued after multiple specific requests for
supplementation. The arbitration decision ruled that
sanctions were appropriate. Each and every one of
defendants' exhibits, the testimony of defense witnesses and
the cross-examination of claimant's witnesses were stricken
from the record as a sanction.
2204; 1108.20
Claimant, a longtime insurance adjuster, developed disabling
mental impairment due to the inherent stress of his
confrontational work and gradually increasing work overload.
His job stress was to be compared with employees in general,
not insurance adjusters in specific under Roach v. Dep't of
Community Corrections. Having established both factual and
legal causation, claimant was awarded 50 percent industrial
disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
STEVEN H. COLYN,
Claimant,
vs.
File No. 977840
MERCY HOSPITAL MEDICAL CENTER,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
RELIANCE INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Steven Colyn,
claimant, against Mercy Hospital Medical Center, employer,
hereinafter referred to as Mercy, and Reliance Insurance Company,
insurance carrier, defendants, for workers' compensation benefits
as a result of an alleged injury on January 23, 1991. On
February 10, 1994, a hearing was held on claimant's petition and
the matter was considered fully submitted at the close of this
hearing.
The parties have submitted a hearing report of contested
issues and stipulations which was approved and accepted as a part
of the record of this case at the time of hearing. The oral
testimony and written exhibits received during the hearing are
set forth in the hearing transcript.
ISSUES
The parties submitted the following issues for determination
in this proceeding:
I. Whether claimant received an injury arising out of and in
the course of employment;
II. The extent of claimant's entitlement to disability
benefits; and
III. The extent of claimant's entitlement to medical
benefits.
Page 2
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as follows:
A credibility finding is necessary to this decision as
defendants placed claimant's credibility at issue during cross-
examination as to the nature and extent of the injury and
disability. From his demeanor while testifying, claimant is
found credible.
Claimant worked for Mercy as a computer operator. In this
job he was required to routinely lift 70-pound boxes of printer
paper. However, other than such lifting, the job was sedentary.
Claimant asserts that he suffered a work injury to his left
shoulder on January 23, 1991 when he was lifting paper and while
he was sitting in his chair at work. Claimant reported to the
Mercy employee health department and reported to David Berg,
D.O., that he had pain for approximately two weeks and was doing
a lot of lifting at work. Dr. Berg diagnosed probable
suprascapular nerve injury but noted atrophy of the muscles which
indicated to him a long-term injury. Consequently, he noted on
the report that the injury was "questionably work-related."
Claimant contends that in subsequent medical bills submitted by
Dr. Berg, the condition was marked "work related." However, a
Mercy staff person testified that this was a confusing part of
the form and that only clerks fill this out to indicate that
Mercy would be paying the bills.
Claimant was referred for care to Peter Wirtz, M.D., who
also found infraspinatus atrophy and weakness and suggested
evaluation by a neurologist.
Claimant's symptoms continued and he was eventually referred
to Douglas Koontz, M.D., a neurosurgeon who also diagnosed nerve
entrapment and gave claimant two options, physical therapy or
surgery. Claimant then underwent therapy.
Claimant eventually quit Mercy due to his dislike of working
conditions at the hospital not his health but stated that he did
experience continuing symptoms which bothered him and his
attitude at Mercy.
Claimant continues to have shoulder symptoms and has been
given an impairment rating for this left shoulder problems.
The only doctor other than Dr. Berg to render an opinion as
to the work relatedness of the left shoulder condition has been
Dr. Koontz who opines that many things could be the cause but
that he could not pinpoint claimant's work as a cause.
Claimant argues that Dr. Berg has made an opinion that the
condition is work-related. Claimant has not shown this. The
assertion that the encircled portions of the bills were the work
Page 3
of Dr. Berg or by persons under his instruction is controverted.
The only clear opinion in the record was his opinion at the time
of the first office visit that the matter was undetermined. I
would agree with claimant that the views of Dr. Koontz appear to
suggest that he would only find causal connection if the work was
the only cause and this is not the law.
However, there was no convincing opinion one way or another
from a physician on the work relatedness of the shoulder
problems. Turning that to the lay testimony, we find that
although claimant did lift routinely at work, he is also a
farmer. He admitted at hearing that his farm work was more
strenuous than his work at Mercy. Also, at about the same time
as the injury, claimant was involved in an auto accident in which
his car turned over. Claimant states that his shoulder was not
injured in this accident. However, such an incident may have set
up a change of events leading to the onset of symptoms a couple
of weeks later. Consequently, no clear causal connection was
shown by lay testimony.
Therefore, the undersigned is unable to find a work injury
in this case. This is not due to any lack of credibility of
claimant as he appeared credible at hearing. The facts and the
medical opinions were just too conflicting and the undersigned
simply was unable to reach a conclusion one way or another.
CONCLUSIONS OF LAW
Claimant has the burden of proving by a preponderance of the
evidence that claimant received an injury arising out of and in
the course of employment. The words "out of" refer to the cause
or source of the injury. The words "in the course of" refer to
the time and place and circumstances of the injury. See
generally, Cedar Rapids, Comm. Sch. Dist. v. Cady, 278 N.W. 2d
298 (Iowa 1979); Crowe V. DeSoto Consol. Sch. Dist., 246 Iowa
402, 68 N.W. 2d 63 (1955). An employer takes an employee subject
to any active or dormant health impairments. A work connected
injury which more than slightly aggravates the condition is
considered to be a personal injury. Ziegler v. U.S. Gypsum, 252
Iowa 613, 620, 106 N.W. 2d 591 (1961), and cases cited therein.
In the case sub judice, the evidence was not clear or
convincing for claimant or the defense. However, the burden of
persuasion is on the claimant and claimant cannot prevail when
the trier of fact is unable to make a finding.
ORDER
1. Claimant's petition is dismissed with prejudice.
2. Claimant shall pay the costs of this action pursuant to
D.I.S. Rule 343 IAC 4.33.
Signed and filed this ____ day of April, 1994.
Page 4
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Lee P. Hook
Attorney at Law
405 6th Ave, Ste 700
Des Moines, IA 50309
Mr. Tom L. Drew
P.O. Box 8476, Ste 105
3209 Ingersoll Ave.
Des Moines, IA 50312
5-1803
Filed April 5, 1994
Larry P. Walshire
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
STEVEN H. COLYN,
Claimant,
vs.
File No. 977840
MERCY HOSPITAL MEDICAL CENTER,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
RELIANCE INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803
Non-precedential, extent of disability case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
BRUCE SUTTER,
Claimant, File No. 977996
vs. A P P E A L
IOWA POWER, D E C I S I O N
Employer,
Self-Insured,
Defendant.
_________________________________________________________________
The record, including the transcript of the hearing before the deputy
and all exhibits admitted into the record, has been reviewed de novo on
appeal.
ISSUE
Claimant states the following issue on appeal: "Did the deputy
industrial commissioner correctly apply a mental-mental analysis to the
claimant's injuries when the claimant obviously suffered both a
physical and a mental injury?"
FINDINGS OF FACT
The findings of fact contained in the proposed agency decision filed
July 20, 1994 are adopted as final agency action.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency decision filed
July 20, 1994 are adopted as set forth below. Segments designated by
asterisks (*****) indicate portions of the language from the proposed
agency decision that have been intentionally deleted and do not form a
part of this final agency decision. Segments designated by brackets ([
]) indicate language that is in addition to the language of the
proposed agency decision.
The first issue to address is whether claimant sustained an injury on
March 13, 1991, which arose out of and in the course of his employment.
The party who would suffer loss if an issue were not established has
the burden of proving that issue by a preponderance of the evidence.
Iowa R. App. P. 14(f).
*****
[Nontraumatically caused mental injuries are compensable under Iowa
Code section 85.3(1). Dunlavey v. Economy Fire and Casualty Co.,
93-1429, slip op., at 17 (Iowa, January 18, 1995).
Under Dunlavey, mental injuries caused by work-related stress are
compensable if, after demonstrating medical causation, the employee
shows that the mental injury was caused by work place stress of greater
magnitude than the day to day mental stresses experienced by other
workers employed in the same or similar jobs, regardless of their
employer. Dunlavey at 35.
In other words, both medical and legal causation must be resolved in
claimant's favor before an injury arising out of and in the course of
the employment can be established. To establish medical causation, the
employee must show that the stresses and tensions arising from the work
environment are a proximate cause of the employee's mental
difficulties. If the medical causation issue is resolved in favor of
the employee, legal causation is examined. Legal causation involves a
determination of whether the work stresses and tensions the employee
experienced, when viewed objectively and not as the employee perceived
them, were of greater magnitude than the day to day mental stresses of
workers employed in the same or similar jobs experience routinely
regardless of their employer.
The employee has the burden to establish the requisite legal causation.
Evidence [of stresses experienced by] workers with similar jobs
employed by a different employer is relevant; evidence of the stresses
of other workers employed by the same employer in the same or similar
jobs will usually be most persuasive and determinative on the issue,
however. Dunlavey at 35, 36.]
In the case at bar, claimant has felt certain anxieties and pressure
about his working conditions and assignments. He believes pressure
associated with his job duties has affected his ability to work, his
overall health, his relationship with his family, and his sense of
financial security.
***** Claimant feels anxious about his health, his financial
well-being, his family and the ability to continue performing his
current job. However, the main focus of claimant's claim stems from
his concern about his health. The record certainly indicates that this
is a valid concern; claimant has experienced some frightening episodes
over the last several years, including several fainting spells and at
least one heart attack. Yet, the defendant employer in this case
cannot be held responsible for claimant's growing concern over his
health. ***** All workers [in claimant's occupation] who experience
poor health are concerned about their ability to continue working.
Likewise, claimant is concerned about his family, whom he described as
"young." His youngest child is only five years of age, and claimant is
55 years old. Again, he has a valid concern in that he wants to
continue to work at least until he is 65 so that he can adequately
provide for his family; however, ***** all workers [in claimant's
occupation] carry concern about whether they will have the ability to
provide for themselves and their families.
Claimant argues that the company is essentially setting him up for
termination. There is nothing in the record to substantiate his claim.
According to the record, claimant has worked for the company for a
number of years, and has been the subject of only one disciplinary
hearing. In fact, according to one witness, this matter was recently
removed from claimant's personnel file. *****
Claimant has clearly not met his burden of proof. He argues that the
defendant is trying to terminate him. He posits that he is not given
qualified workers to help him. He believes he is singled out and given
harsher treatment, and more rules and regulations than other workers.
There is no objective evidence to substantiate any of claimant's
arguments. [Claimant appears to have been treated the same as other
employees.] He has not shown, even by a preponderance of the evidence,
that his work situation was of greater dimensions than the day to day
mental stresses and tensions that employees [in his occupation]
experience. [Claimant has not suffered a psychological injury as a
result of the stress of his work conditions.]
[Claimant also urges that he is entitled to worker's compensation
benefits because he has suffered a heart attack allegedly caused by a
stressful disciplinary meeting with his supervisors. Claimant argues
that he has suffered a "mental-physical" injury in that the meeting
caused the heart attack.
Claimant has offered the testimony of Dr. McNeil, a psychologist, to
establish causal connection between the disciplinary meeting and the
heart attack. It is also noted that the heart attack occurred close in
time to the hearing. There is no medical evidence that contradicts
this causal connection opinion. It is found that claimant's heart
attack on March 13, 1991 was caused by the stress of his disciplinary
hearing. Although there does not appear to have been any improper or
coercive activities on the part of the employer at this hearing,
nevertheless claimant's interpretation was that he was being "set up"
for termination, and claimant's anxiety resulting from this apparently
did contribute to his heart attack during one of the breaks in the
hearing.
However, it is also noted that claimant had prior episodes of shortness
of breath and other symptoms of heart attack on other occasions. This
suggests claimant had a preexisting heart condition prior to the March
13, 1991 disciplinary hearing. A heart condition that is aggravated by
work conditions may constitute a work injury.
There is no medical testimony that claimant's heart attack on March 13,
1991, has resulted in any physical impairment. Claimant is still
working. Claimant has no work restrictions. Claimant's physician, Dr.
Kwatra, indicated that claimant was able to work. Claimant himself
described his condition as fit and able to work. Claimant has not
suffered a physical injury as a result of the March 13, 1991 heart
attack.
Claimant argues that he has also suffered a "physical-mental" injury in
that the heart attack caused him to develop an anxiety condition in
that he worries he will suffer further heart attacks.
Claimant's anxiety condition is not the result of long-term stress in
the workplace, as is common in the so-called "mental-mental" injury
cases. Rather, claimant bases his original mental injury on a one-time
occurrence, the disciplinary hearing and heart attack. Claimant's
situation is unique in that it involves an alleged
"mental-physical-mental" injury; that is, the stress of the
disciplinary hearing (mental) caused the heart attack (physical) which
in turn led to the anxiety condition (mental).
In order to prevail, claimant must show by a preponderance of the
evidence that (1) he suffered a mental injury at the disciplinary
hearing; (2) that this mental injury in turn resulted in a physical
injury; (3) that the physical injury in turn resulted in a second
mental injury; and (4) that the physical injury or either of the mental
injuries resulted in disability.
Dr. McNeil's testimony notes that it is a natural reaction for one who
has experienced a heart attack to be concerned over one's health.
Claimant has not offered any evidence that the mental injury he
allegedly suffered on March 13, 1991, caused him any disability.
Although the stress of the disciplinary hearing may have led to the
heart attack, the stress suffered by claimant on that date did not
cause his anxiety condition. He alleges that was caused later by
concern over future heart attacks. Claimant has not shown any
disability as a result of the mental stress on March 13, 1991.
Claimant also has not offered any evidence that the physical injury he
suffered on March 13, 1991, has resulted in any disability. Although
claimant did suffer chest pains later diagnosed as a heart attack,
there is no showing that the heart attack resulted in any disability.
Claimant has returned to work, without restrictions, and describes
himself as fit. At most, claimant has suffered pain in the form of
chest pains during the attack; there is no permanent impairment.
Claimant has not shown any disability as a result of his physical
injury on March 13, 1991.
Claimant has also not shown that he is disabled by his anxiety
condition. Claimant has testified that he is now worried about his
health, but has shown little else. Even assuming that this anxiety is
directly caused by the March 13, 1991 disciplinary hearing and
resulting heart attack, there is no showing that the condition is in
any way disabling. Claimant's work for defendant employer is almost
entirely physical in nature. Claimant works as a foreman for an
electrical crew. His anxiety has not been shown to have affected his
ability to do this job; indeed, he has been able to continue working.
It is not necessary that claimant actually miss work or not return to
his job in order to show that he has suffered a disability. A rating
of permanent impairment can constitute the basis for an award of
industrial disability even in the absence of a loss of work. However,
in this case, claimant's anxiety condition has not been shown to affect
his ability to work at his present job, and there is no evidence that
the anxiety condition would hinder claimant's efforts to obtain or
maintain employment in the future. Basically, claimant has merely
shown that he worries about his health. He has not shown that he is
disabled by this.
At most, claimant has shown only entitlement to temporary total
disability benefits for the time he was off work recovering from his
March 13, 1991 chest pains/heart attack, and any attendant medical
expenses. Claimant has not carried his burden of proof to show
entitlement to any permanent disability benefits.]
WHEREFORE, the decision of the deputy is affirmed.
ORDER
THEREFORE, it is ordered:
That claimant take nothing from these proceedings.
That claimant shall pay the costs of the appeal including the
transcription of the hearing. Defendant shall pay all other costs.
Signed and filed this ____ day of March, 1995.
_______________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Thomas J. Reilly
Attorney at Law
4900 University, Ste 200
Des Moines, Iowa 50311
Ms. Mary C. Nelson
Attorney at Law
P.O. Box 657
Des Moines, Iowa 50303
1101
Filed March 24, 1995
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
BRUCE SUTTER,
Claimant, File No. 977996
vs. A P P E A L
IOWA POWER, D E C I S I O N
Employer,
Self-Insured,
Defendant.
________________________________________________________________
1101
Claimant failed to prove by a preponderance of the evidence that his
anxiety disorder was caused by his work. Claimant urged a
"mental-physical-mental" injury. Claimant was called into a
confrontational meeting, which in turn caused him to suffer a heart
attack, which in turn caused him to worry about his health. The heart
attack did not result in any physical impairment. Claimant's anxiety
over his health was not shown to be disabling.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
BRUCE SUTTER, :
:
Claimant, :
:
vs. :
: File No. 977996
IOWA POWER, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant. :
:
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by
claimant, Bruce Sutter, against his self-insured employer,
Iowa Power, Inc. n/k/a Midwest Power.
Claimant alleges that he sustained an injury on March
13, 1991 which arose out of and in the course of his
employment. A hearing was held before the undersigned
deputy industrial commissioner on June 29, 1994, at Des
Moines, Iowa. The evidence consists of live testimony from
the claimant, Michael McNeil, Ph.D., Bud McCauley (crew
supervisor for the defendant), and William Stowe (manager of
employer-employee relations for the defendant); joint
exhibits E, H 1-8, I and J; and, defendant's exhibits 1-5.
ISSUES
The parties submitted the following issues for
resolution:
1. Whether claimant sustained an injury on March 13,
1991 which arose out of and in the course of his employment;
2. Whether claimant is entitled to temporary total or
healing period benefits, or permanent partial disability
benefits;
3. Whether claimant is entitled to medical benefits as
governed by Iowa Code section 85.27; and,
4. Whether defendant is entitled to credit for
benefits previously paid, pursuant to Iowa Code section
85.38 (2).
FINDINGS OF FACT
The undersigned deputy industrial commissioner, having
reviewed all of the evidence received, and having presided
Page 2
at the hearing, finds the following facts:
Claimant, Bruce Sutter, was born on January 24, 1939.
At the time of the hearing, he was 55 years of age. Mr.
Sutter is married to Gloria, and they have four children,
whose are 5, 9, 13 and 16 years of age.
Claimant graduated from Runnels High School in 1958.
Claimant has worked for the defendant employer most of
his life, having started in the labor pool in 1959 as a
temporary worker. Ultimately, claimant was hired as a
full-time laborer on January 1, 1966. Throughout the years,
his jobs have included work on the tree crews; lineman;
journeyman lineman; substation journeyman; and, his current
position, foreman on the line crew.
Claimant has had several episodes at work which
required medical attention. In July of 1988, while digging
ditches at work, he experienced shortness of breath and
chest pains. He sought treatment from the Methodist
Athletic Clinic, and was diagnosed with heat exhaustion. He
returned to work.
During the next year, claimant experienced the same
sensation, shortness of breath, while working. He would
"back off" at work, and eventually, the feeling would
subside.
In July of 1989, claimant was performing underground
digging work, and passed out. He was taken to Iowa
Methodist Medical Center, was diagnosed as having had a
heart attack, and according to claimant, he underwent an
angiogram. The only medical records which indicated his
hospital stay are found at joint exhibit 8.
In November of 1990, claimant again experienced
shortness of breath and loss of consciousness. Although he
initially testified that he had worked at his job through
the day, and passed out at home while he was cutting wood,
the evidence submitted by the defendant indicates that
claimant was on vacation chopping wood when he suffered a
heart attack. In any event, he was taken to the hospital
and treated for approximately one week. (Defendant's
Exhibit 3).
Claimant returned to work six weeks after the heart
attack. He believed the company was "more than pleased"
with his on-the-job performance, until March 3, 1991.
On that date, claimant and his crew were working on an
assignment which required their presence in a residential
area of Ankeny. Apparently, the work required working with
a myriad of switches and maps to correct the problem.
Claimant stated that the maps were outdated, and did not
accurately reflect underground equipment and work. Claimant
testified that various telephone calls were placed to
appropriate supervisors, some of whom were unavailable.
A customer complaint was filed with the company
Page 3
concerning the work, or lack of work, demonstrated by the
workers. Apparently, a portion of the complaint also
concerned claimant's failure to "urgently" request that a
supervisor be available in person or by telephone in order
to help solve the problems encountered at the job site. (It
should be noted that a description of the complaint, and/or
a description of the complaints that were to be addressed at
the disciplinary hearing were not introduced as evidence at
the hearing.) Claimant was "written up" for the complaint,
and was advised that a disciplinary hearing would be held.
Claimant, who had never in the past been the direct target
of a disciplinary hearing, was concerned about the
proceeding, which took place on March 13, 1991. While he
thought that it would only take 15 to 20 minutes to explain
the events that had happened at the work site, the hearing
lasted longer. Claimant described the process as an
"interrogation" and felt a tremendous amount of pressure to
explain everything that had happened at the work site. He
complained that the company, represented by several lawyers,
an executive and other members of management did not ask
questions of other members of his crew about the events that
took place on March 3. He stated that management brought
to the hearing the tapes of the telephone conversations made
and the maps used on March 3, 1991.
As the hearing proceeded, claimant experienced
shortness of breath and pains in his chest. He went to get
a drink of water, and passed out. Claimant's wife and an
ambulance were called; Mrs. Sutton arrived before the
ambulance, and took claimant to the doctor, and then to the
hospital.
Since the disciplinary hearing on March 13, 1991,
claimant alleges that he suffers mental problems, including
difficulty with concentration. He believes he is under a
great amount of pressure at work, and that management does
not assign "good" workers to him. He feel that the company
is "leaning" on him, and that it conducts "abnormal checks"
on claimant's work. Claimant stated that he is required to
bring in "sick slips" when he misses time from work on
account of illness. Mr. Sutter feels a particular sense of
hostility from Skip Harsh, who is a manager at the Delaware
station, to which claimant is assigned. Apparently, on
claimant's first day at this particular station
(approximately 7 years ago), Mr. Harsh met privately with
the claimant, and explained what was expected of him while
he was on the job, and also explained the various rules of
the work station. According to claimant, not all work
centers have the same rules, but claimant had never been
subjected to this type of treatment in the past.
He testified that his eating habits have changed, for
the worse, as he wakes up in the middle of the night and
eats things that he is not suppose to eat. Currently,
claimant feels depressed and becomes irritable over small
things. There has been a decrease in his social activities,
he feels grouchy, loses his temper and his sleep is
disturbed. He complained that his mind "trips out" at work
sometimes, because he recalls yelling at his children
instead of concentrating on his work. Claimant acknowledged
Page 4
that his work is inherently dangerous, and recognizes the
need for extreme caution while performing his daily
activities.
Claimant stated on numerous occasions during the
hearing that his children are young, and he is concerned
about their futures. In this vein, anticipates working
until he is 65 years of age so that he can adequately
provide for his family.
After the disciplinary hearing, claimant spent 2 or 3
days in the hospital, and was released to return to work.
In September of 1993, claimant, at the behest of his lawyer,
sought a psychological evaluation from Michael McNeil,
Ph.D., a psychologist. He administered the Minnesota
Multiphasic Personality Inventory 2 (MMPI-2) test to
"develop objective data on the [claimant's] personality
makeup." (Jt. Ex. 4, p. 109). Dr. McNeil diagnosed
claimant as having an anxiety disorder, and his report
supplies the following information:
Persons producing this configuration of scores are
worried, tense, anxious, and uncomfortable. They
are typically depressed and having problems
concentrating, thinking, and sleeping, and are
also frequently fearful or phobic. Somatic
complaints are common, as are rumination and
obsessive thoughts. This individual indicates a
great deal of self-criticism and strong dependency
needs with low self-confidence.
Some of the more long-term features of the
patient's personality indicated by the test
results are his conventional, law-abiding belief
system and self-image, and a tendency to shyness
and isolation.
This individual's test responses overall suggest
someone who feels overwhelmed by his problems and
that he is losing his mind. His rigid,
conventional, and retiring manner all seem to
indicate someone whose lack of flexibility and
assertiveness have left him vulnerable to changes
in his health status and to increased pressure and
scrutiny at work.
Summary and Conclusions:
Mr. Sutter has worked for Midwest Power for close
to thirty years and has managed for most of that
time to cope with the demands of his job. Since
his 1989 heart attack, his ability to adapt and
function has been subject to extreme stress, with
resultant decompensation and reduced ability to
cope. There is a definite interactive effect,
with his physical and psychological problems
potentiating each other. I see him as
significantly psychologically impaired by his
evident anxiety disorder.
Page 5
....
In my opinion, this constitutes a 25% impairment
due to a mental disorder.
(Jt. Ex. 4, p. 108).
At that time, claimant did not seek any treatment, but
he returned to Dr. McNeil in February of 1994.
On cross-examination, claimant offered that he had also
tapped the employee's assistance program (ASSIST) for help,
and that he and his wife are receiving counseling through
that program. Apparently, claimant began spying on his
wife, who was seeing someone else. An altercation ensued,
and charges were lodged against claimant.
Additionally, he explained that prior to a change in
the collective bargaining agreement, he usually supervised
three or four workers, but currently supervises one worker
while on the job.
After each hospital stay, claimant was released to
return to work without restrictions. Claimant stated that
he felt "physically, mentally and emotionally" capable of
performing his job duties.
Michael McNeil, Ph.D., a psychologist testified at the
hearing. His deposition is also in evidence.
Dr. McNeil believes claimant's onset of an anxiety
disorder was on March 13, 1991, and characterized the
disciplinary hearing as an interrogation about a "trivial"
matter. He stated that "being put on the spot" triggered
claimant's collapse. In establishing the 25 percent
impairment noted above, Dr. McNeil used the AMA Guides to
the Evaluation of Permanent Impairment, and factored in
claimant inability to engage in day-to-day problems, his
lack of social activities, his state of withdrawal from his
family and his inability to concentrate. He went on to
state that claimant's condition was permanent, but
treatable.
The results of the MMPI-II, administered by Dr. McNeil,
were valid in his opinion, and as far back as September,
1993, he recommended that claimant undergo counseling. He
also stated that claimant was not the type of person who
would be comfortable seeking help for his problems.
Bud McCauley also testified on behalf of the employer.
He has worked for the company for 35 years, and currently
holds the position as crew supervisor at the Delaware
station. Prior to his current position in management, Mr.
McCauley served 15 years as a union steward and president of
the union for three years. Currently, he is claimant's
supervisor, and he has known claimant for many years.
Mr. McCauley attended the disciplinary hearing held on
March 13, 1991. He stated that there was nothing unusual or
abnormal about the proceedings, or the attendants. In
Page 6
addition to claimant, other participants from the company
included Tom Turner (manager of human resources), William
Stowe (labor relations attorney), and Joe Judge (manager of
the Des Moines electrical system). Mr. McCauley stated that
it was not unusual to have these people attend a
disciplinary proceeding.
With respect to the assignment of crews, this witness
offered that he has a certain number of people to assign to
a certain number of jobs. Journeyman are assigned to jobs
of a more technical nature; apprentices are assigned to the
remaining jobs. Usually, claimant's crew consisted of an
apprentice, but not because Mr. McCauley intentionally
wanted claimant to have less experienced workers, but
because journeymen were needed to round out other crews. He
also offered that all workers at the Delaware station were
required to bring in doctor slips when they lost time from
work due to illness.
Mr. McCauley denied that the company was trying to
"build a file" on claimant so as to facilitate his
(claimant's) future firing. This witness described claimant
as a hard worker who maintained a good safety record, and
who had not demonstrated a deterioration in his work. Mr.
McCauley is aware of no complaints from the claimant
concerning the demands of his job and his inability to
perform or cope with the same.
William Stowe also testified at the hearing. He is the
manager of employer-employee relations at Midwest Power, a
position he has held for five and one-half years. He is
responsible for the overall administration of hiring,
firing, contract enforcement/negotiations, and establishing
and enforcing drug and substance abuse policies. He
regularly attends disciplinary proceedings, a process which
is used approximately 10 times per year.
Mr. Stowe indicated that most complaints are thoroughly
investigated, but that special attention is used when a
complaint comes from a customer of Midwest Power.
Preliminary to any disciplinary proceedings, the workers
against whom the complaint is lodged are afforded union
representation and due process (notice of the complaint, and
an opportunity to be heard regarding the complaint).
In addition to the aforementioned people in attendance
at the disciplinary hearing, this witness offered that Curt
Larson and Skip Harsh were also at the proceeding. The
union brought three people.
Prior to a disciplinary hearing, a full investigation
of the complaint is conducted. Depending on the particular
circumstances of each complaint, the company interviews any
or all members of the crew that is involved in the
complaint.
Mr. Stowe believed that nothing of an unusual nature
occurred during the hearing. It was held in a large
conference room, and claimant was given the opportunity to
explain the events which occurred on March 3, 1991.
Page 7
This witness also explained that since June 1, 1994,
the company had adopted a positive discipline program, which
involved removing punitive marks from workers' files, and
incorporating better investigations and correcting errant
behavior with better communications between labor and
management.
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to address is whether claimant
sustained an injury on March 13, 1991, which arose out of
and in the course of his employment.
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. App. P. 14(f).
In cases of nontraumatically-caused mental injury, the
industrial commissioner follows the "Wisconsin" rule which
is favored in 1B Larson The Law of Workmen's Compensation,
42.23(b). Desgranges v. Dep't of Human Services, File No.
760747 (App. August 19, 1988).
Under the "Wisconsin" rule, a nontraumatically-caused
mental injury is compensable only when the injury "resulted
from a situation of greater dimensions than the day-to-day
mental stresses and tensions which all employees must
experience." Swiss Colony v. Dep't of Indus., L. & H. R.,
72 Wis. 2d 46, 240 N.W.2d 128 (1976). In other words, both
medical and legal causation must be resolved before finding
an injury arising out of employment. The medical causation
issue involves an examination into the cause and effect
relationship between the stresses and tensions at work and
the mental difficulties. If the medical causation issue is
resolved in favor of the claimant, legal causation is
examined. Legal causation involves a determination of
whether the work stresses and tensions, when viewed
objectively and not as perceived by claimant, were "out of
the ordinary from the countless emotional strains and
differences that employees encounter daily without serious
mental injury." School Dist. #1 v. Dep't of Indus., L. & H.
R., 62 Wis. 2d 370, 215 N.W.2d 373 (1974).
In the case at bar, claimant has felt certain anxieties
and pressure about his working conditions and assignments.
He believes pressure associated with his job duties has
affected his ability to work, his overall health, his
relationship with his family, and his sense of financial
security.
The undersigned believes that claimant feels anxious
about his health, his financial well-being, his family and
the ability to continue performing his current job.
However, the main focus of claimant's claim stems from his
concern about his health. The record certainly indicates
that this is a valid concern; claimant has experienced some
frightening episodes over the last several years, including
several fainting spells and at least one heart attack. Yet,
the defendant employer in this case cannot be held
Page 8
responsible for claimant's growing concern over his health.
The undersigned believes that all workers who experience
poor health are concerned about their ability to continue
working.
Likewise, claimant is concerned about his family, whom
he described as "young." His youngest child is only five
years of age, and claimant is 55 years old. Again, he has a
valid concern in that he wants to continue to work at least
until he is 65 so that he can adequately provide for his
family; however, once again, the undersigned believes that
all workers carry concern about whether they will have the
ability to provide for themselves and their families.
Claimant argues that the company is essentially setting
him up for termination. There is nothing in the record to
substantiate his claim. According to the record, claimant
has worked for the company for a number of years, and has
been the subject of only one disciplinary hearing. In fact,
according to one witness, this matter was recently removed
from claimant's personnel file. Any time a worker is
disciplined, there is a sense of paranoia and animosity
between labor and management. This is unfortunate, but not
uncommon.
Claimant has clearly not met his burden of proof. He
argues that the defendant is trying to terminate him. He
posits that he is not given qualified workers to help him.
He believes he is singled out and given harsher treatment,
and more rules and regulations than other workers.
There is no objective evidence to substantiate any of
claimant's arguments. He has not shown, even by a
preponderance of the evidence, that his work situation was
of greater dimensions than the day to day mental stresses
and tensions that all employees experience.
Claimant may have shown that his work was the factual
(or medical) cause of his mental condition. He was a
credible witness, and Dr. McNeil stated that claimant's
anxiety about his work caused the anxiety disorder.
However, claimant must establish both legal and medical
causation. He has not, and takes nothing from these
proceedings.
ORDER
THEREFORE, it is ordered:
That claimant take nothing from these proceedings.
That each party shall pay their respective costs
associated with this claim.
Signed and filed this ____ day of July, 1994.
Page 9
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Thomas J Reilly
Attorney at Law
4900 University Ste 200
Des Moines IA 50311
Ms Mary C Nelson
Attorney at Law
Iowa Public Service
P O Box 657
Des Moines IA 50303
5-1101
Filed July 20, 1994
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
BRUCE SUTTER, :
:
Claimant, :
:
vs. :
: File No. 977996
IOWA POWER, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant. :
:
------------------------------------------------------------
5-1101
Claimant failed to prove by a preponderance of the evidence
that his anxiety disorder was caused by his work.
2700
Filed March 3, 1995
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
STEVE RILEY,
File No. 978489
Claimant,
M E M O R A N D U M
vs.
D E C I S I O N O N
HEARTLAND EXPRESS,
A L T E R N A T E
Employer,
M E D I C A L
and
C A R E
GREAT WEST CASUALTY COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
2700
Defendants' recent change in care was reversed.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
STEVE RILEY,
File No. 978489
Claimant,
M E M O R A N D U M
vs.
D E C I S I O N O N
HEARTLAND EXPRESS,
A L T E R N A T E
Employer,
M E D I C A L
and
C A R E
GREAT WEST CASUALTY COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
An original notice and petition seeking alternate medical care was
filed by claimant on February 16, 1995 under rule 343 IAC 4.48. A
telephonic hearing on this petition was held on March 2, 1995. All
parties were given proper notice.
This medical care dispute arose over care being given by defendants as
a result of a work injury on January 23, 1991, liability for which is
admitted by defendants. The entire hearing was recorded by audio tape.
A detailed decision containing findings of fact and conclusions of law
was dictated into the record on the date of the hearing. This decision
will not be reproduced in typewritten form unless there is an appeal
from this decision at which time the procedures under the
administrative code are to be followed. Any rights of appeal will run
from the date the decision was dictated into the record and this
memorandum is solely for the purpose of the agency file.
In the decision, it was ordered that claimant's petition for alternate
care be granted and that care be maintained under Dr. Gocio and
specifically pain center care currently being given by Dr. Boos. This
decision was rendered on March 2, 1995.
Also, it should be noted that the motion for protective order was
denied with reference to an independent evaluation under Iowa Code
section 85.39 and that claimant shall be evaluated by Dr. Boulden here
in Des Moines with defendants assuming the costs of travel. The
discovery completion dates set forth in the hearing assignment order
for the May 1995 hearing is amended to allow for such an evaluation and
any rebuttal evaluation by claimant.
This memorandum of decision is signed and filed this ____ day of
March, 1995.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Harry W. Dahl, Sr.
Attorney at Law
974 73rd St STE 16
Des Moines IA 50312
Mr. Stephen W. Spencer
Attorney at Law
PO Box 9130
Des Moines IA 50306-9130