BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
TOM LYLE DESKIN, :
:
Claimant, :
:
vs. :
: File No. 978786
METRO AIR, INC., :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
AETNA CASUALTY & SURETY CO., :
:
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. Whether the work-related injury caused permanent
disability.
II. Whether the arbitration decision awarded the
claimant an erroneously high industrial disability.
III. Whether claimant is entitled to payment of certain
medical expenses that were not authorized by the
defendants.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed April 14, 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.
causal connection/entitlement/permanent disability
Page 2
It is determined that the injury was the cause of permanent
disability and that claimant sustained a 15 percent industrial
disability to the body as a whole and that claimant is entitled
to 75 weeks of permanent partial disability benefits.
Claimant, born December 10, 1957, was 33 years old at the
time of the injury and 35 years old at the time of the hearing.
He completed high school, two years of college and truck driving
school which lasted four to six weeks. His primary occupation
has been an over-the-road truck driver. He performed clerical
work in the air force for two years and was honorably discharged.
He also performed clerical work for his father for short periods
of time obtaining information from courthouse records to be used
in real estate appraisals. Claimant denies and there is no
evidence of any prior back problems or workers' compensation
claims (Transcript pp. 61-72, 83 & 129).
Claimant started to work for employer as an over-the-road
truck driver in August of 1990.
Claimant injured his back on March 6, 1991 while unloading
freight at North Liberty, Iowa at approximately 4:00 a.m. in the
morning. Claimant testified that a 600-pound crate toppled over
and caught his right hand in the metal binding strap. He was
jerked forward and fell to his knees and hit his right arm and
right side on the side of the trailer. Claimant testified that
he immediately experienced a burning sensation between his
shoulder blades and that he subsequently developed pain in his
mid to low back as well as headaches. He reported the injury by
telephone to employer but managed to get the tractor back to Des
Moines with some difficulty. Upon arriving back at the terminal
claimant reported to employer that he was going to the emergency
room to be treated for this injury (Tran. pp. 72-77).
William Eischen, D.O., at the emergency room reported,
"Crate caught R hand it pulled him forward, pt states he
immediately experienced a burning sensation between shoulders.
Now has tingling type pain mid to low back with numbness tingling
sensation R side of back. C/O headaches. pt states he is unable
to straighten up." (Exhibit 1, p. 1).
Dr. Eischen diagnosed dorsal spine strain and sprain (Ex.
2, p. 2). Claimant was taken off work by Becky Davis-Kramer,
D.O., on March 6, 1991 (Ex. 3, p. 3).
X-rays were taken of the cervical, dorsal and lumbar spine
on March 6, 1991. The cervical films showed subtle early
degenerative disc disease at C-7, T-1 but no other cervical
abnormalities. The thoracic spine repeated the reading for the
cervical spine and found minimal spondylosis but no signs of
fracture. The lumbar spine disclosed L-5, S-1 degenerative
Page 3
changes at their facets, spondylolysis, but no other
abnormalities of significance (Ex. 5, p. 5).
Mark Rankleman, D.O., diagnosed dorsal muscle strain on
March 11, 1991 and ordered physical therapy and continued
claimant off work (Ex. 6, p. 6; Ex. 7, p. 7; Ex. 8, p. 8; Ex. 9,
p. 9 & 10).
On March 14, 1991, Dr. Davis-Kramer diagnosed thoraco/lumbar
strain, continued claimant off work and ordered more physical
therapy (Ex. 10, p. 11).
Next, claimant saw Daniel J. McGuire, M.D., an orthopedic
surgeon, on three occasions on March 25, April 8, and April 15,
1991. Dr. McGuire also verified by his notes that claimant
complained of low back pain, upper back pain, neck pain, pain
into his shoulders and headaches. Dr. McGuire recorded that over
the 19 days since the injury that his low back pain was almost
completely gone but that he had persistent neck, shoulder and
right arm discomfort. He kept claimant off work and prescribed
medications and physical therapy.
Dr. McGuire estimated, "I think his time off work will be
three to six months. His prognosis is excellent. His permanent
partial disability should be in the single digits." (Ex. 13, p.
14).
Dr. McGuire talked about a bone scan because claimant had so
many areas of pain but there is no evidence from his notes or
otherwise in the record that a bone scan was performed at Dr.
McGuire's request.
A communication problem developed between claimant and Dr.
McGuire because claimant considered all of his various areas of
pain as one area of pain and Dr. McGuire considered them as
several areas of pain. Dr. McGuire also became upset with
claimant because he complained to the nurse that he had to wait
45 minutes in a straight back chair with his back in pain in
order to see the doctor. This seems to have greatly upset Dr.
McGuire. Dr. McGuire stated on April 15, 1991, "I am unable to
communicate with him. I apologized. I think he should get a new
physician. I called Aetna and talked to somebody there and told
them I was sorry I could not help this gentleman and that I felt
that we need to proceed with a different physician." (Ex. 13, p.
15).
Claimant explained this incident as follows,
And he told me that -- that I had -- that every time
I come in to see him that my pain would change
location, and I refuted with him saying, "It's always
Page 4
been the same location. I don't know who you're
getting me confused with." And he told me that he
thought I should go see another doctor, so I did." (Ex.
C, p. 20).
Claimant denied that he was rude to Dr. McGuire's nurse.
Claimant testified, "No, that's not true." (Tran. p. 116).
Dr. McGuire wrote a letter to defendants' counsel on
September 1, 1993 in which he stated he did not find any evidence
of neurological damage. He further stated that he did not doubt
that claimant may have some aches and pains following this work
incident based on subjective complaints but based on objective
physical examination and objective diagnostic studies he was
unable to place any permanent restrictions on him. He further
stated that he could not give any objective reason to assign a
permanent impairment rating. However, Dr. McGuire's office notes
do not show that he performed any objective tests nor are there
any introduced into evidence by either party. Dr. McGuire did
suggest the bone scan but there is no evidence that one was
carried out at his request (Ex. 13, pp. 14 & 15).
In his letter of September 1, 1993, Dr. McGuire suggested
that claimant possibly might be entitled to a 2 percent
disability rating. Dr. McGuire stated,
Based on the fact that his initial problem was
"dorsal spine sprain and strain" and, according to the
AMA Guidelines, whether we use the Third or Fourth, it
makes no difference, someone could assign an impairment
of 2 percent as it pertains to his dorsal "thoracic"
spine. I cannot give you an objective reason to do
that; but, since he claims his injury was to the
"dorsal spine", and there was no spasm or rigidity
noted and his CT scan and bone scan are benign, someone
could assign a 2 percent disability rating. (Ex. D, p.
2).
It would appear that Dr. McGuire is making reference to the
Guides to the Evaluation of Permanent Impairment, Third Edition
Revised, Table 53. Impairments Due to Specific Disorders of the
Spine,
II. Intervertebral disc or other soft-tissue
lesions:
B. Unoperated, with medically documented injury and a
minimum of six months of medically documented pain and
rigidity with or without muscle spasm, associated with
none-to minimal degenerative changes on structural
tests
Page 5
In the thoracic column it shows a percentage impairment
of the whole person of 2 percent. This is found on
page 80 of the Revised Third Edition.
It would further appear that Dr. McGuire is relying on a
bone scan and CT scan taken by other physicians since his records
do not show any diagnostic tests were actually taken by him.
The worksheet of Dr. McGuire has a place to show what tests
were ordered. The worksheet lists myelogram, CT scan, MRI, bone
scan, EMG and lab work. There are no entries for any of these
tests and in the column "date scheduled" there is also no entries
(Ex. 14, p. 16). Dr. McGuire did give the insurance carrier a
prescription for a whole body bone scan on April 19, 1991 but
there is no evidence that it was ever used (Ex. 15, p. 17).
In conclusion, it would appear that even though Dr. McGuire
had communication problems and personality problems with
claimant, and even though he found no objective evidence of
impairment, he nevertheless, granted that it was possible for
claimant to have a 2 percent permanent impairment based upon his
continuing subjective symptoms of pain in the thoracic spine.
Claimant testified that the insurance carrier then directed
him to see William R. Boulden, M.D., an orthopedic surgeon, on
April 25, 1991 (Tran. p. 83; Ex. C, p. 21).
Dr. Boulden also verified that claimant had complaints in
all three segments of his back --- lumbar, thoracic and cervical.
The opening sentence in Dr. Boulden's notes are as follows, "Tom
is a 33 year old truck driver who is here with low back pain,
upper lumbar pain, neck and shoulder pain." (Ex. 16, p. 18). Dr.
Boulden also related that claimant had been treated for his neck
and that his neck seemed to be getting better but that claimant
felt that his back pain was worsening. Dr. Boulden ordered a
limited CAT scan from L3 to S1 which turned out to be very normal
in appearance (Ex. 17, p. 20 & Ex. E).
Dr. Boulden recommended back conditioning exercises
preparatory to work hardening and an eventual return to work in
five weeks (Ex. 16, p. 18 to Ex. 19, p. 22). Claimant testified
that the restrictions under which Dr. Boulden returned him to
work would not enable him to work with any other trucking company
in the industry, but that employer did agree to accommodate him
by honoring these restrictions (Ex. C, pp. 21 & 22).
The first release signed by Dr. Boulden is dated July 3,
1991. It states that claimant is released back to work on July
8, 1991 because no heavy lifting will be required of him. The
release states, "On 7-8-91 this patient is released back to work
Page 6
Reports to follow no lifting restrictions based on patient
information that no heavy lifting is required. Should take
intermittent breaks." (Ex. 20, p. 23).
Thus, it would appear that since employer had agreed to
accommodate claimant with no heavy lifting it was not necessary
for Dr. Boulden to write this in his release specifically (Ex. C,
p. 22; Tran. p. 88). At the same time it is clear that claimant
was restricted from performing heavy lifting.
Claimant testified at the hearing that he showed the
restrictions to employer and they agreed to palletize the loads
so that there would be no lifting.
Dr. Boulden issued a similar release dated July 12, 1991, in
which he stated that, "This patient is released back to work with
driving for 40-45 minutes, Stop, walk around, extend for 1-2
minutes" (Ex. 21, p. 24).
Claimant testified that he did return to work for employer
with the understanding that these were his restrictions, however,
there were several occasions when the freight which came out of
Chicago was not palletized. Therefore claimant could not carry
out the rest of his duties which were unloading the trailer.
Claimant testified there were two different occasions when he had
to call the supervisor that lives up in Iowa City or Cedar Rapids
to come down and help him unload the trailer (Tran. p. 90).
On July 23, 1991, Dr. Boulden stated, "Effective today, we
feel he has reached his maximum medical improvement. Since we
have not found any type of operative lesion, we do not feel there
is any permanent disability rating." (Ex. 22, p. 25).
On July 29, 1991, Dr. Boulden wrote to claimant's attorney
as follows:
... I understand that the patient still has
symptoms, but basically, these symptoms we feel are
from the soft tissues of this back and we have not
found anything abnormal in his diagnosis from cast
[sic] scan or clinical examination. We have not found
anything that can be treated surgically and he has
maxed out his conservative management.
I do not evaluate necks and am only a low back
specialist. I have previously discussed that with him.
In reference to how long is [sic] pain will be
present, I am afraid that as long as he is a truck
driver, there will always be some components of pain
based on the fact of that type of occupation. I do not
Page 7
recommend pain pills to treat pain in the back since it
is a very poor choice of therapy.
The only treatment that he needs to do is properly
use his back and maintain himself in good physical
shape and in the future consider alternative type of
work from the stand point that truck drivers are
notorious for developing back problems (Ex. 23, p. 26).
On August 8, 1991, Dr. Boulden wrote to the insurance
carrier as follows,
I believe you have a copy of the patient's
functional capacities evaluation by this point.
We do not recommend any further treatment. He has
been maxed out in his treatment and no surgery is
expected to help him.
I feel that he has reached his maximum medical
improvement as to 7/23/91.
The main problem that I have is the fact that the
patient will definitely have a problem returning back
to being a truck driver. Truck driving, as you well
know, shows a high incidence of low back problems. I
think that type of work may continue to aggravate his
back.
I do not feel that the patient has sustained any
type of permanent injuries since we have not identified
any pathology (Ex. 24, p. 28).
On July 3, 1991, Thomas W. Bower, L.P.T., who conducted the
therapy program prescribed by Dr. Boulden wrote as follows,
The patient demonstrates full range of motion at
this time, and although he still has some thoracic
spine pain, the lower back is completely normal in
terms of function and pain.
....
We have given this patient a return to work
effective July 8, 1991 for full release under the
present restrictions, although this patient tells me
that he is not going to have to do any heavy lifting.
There is some concern that the long distance driving is
going to be a problem, and I have advised him to not
sustain a sitting position for longer than 30 to 45
minutes at a time.
Page 8
The following restrictions would apply to this
individual:
MAXIMUM FREQUENT REPETITIVE
POSITION LIFT LIFT LIFT
Floor to waist 70 lbs. 42 lbs. 32 lbs.
Overhead 50 lbs. 40 lbs. 30 lbs.
Carry 72 lbs. 42 lbs. 32 lbs.
Push/Pull 185 lbs. (Ex. 31, p. 37 & 38)
Claimant testified that Mr. Bower gave an evaluation at the
end of the physical therapy and he was pushed to do as well as he
could. He agreed that he did that and was able to lift those
weights, "... but then after I did this, then my back was always
in so much pain I couldn't do anything of any good for about the
next day and a half. So I mean, I could do that; but after I did
that, I was in extreme pain." (Ex. C, p. 23).
On July 23, 1991, Mr. Bower wrote,
I have seen Tommy Deskin with Dr. Boulden today, in
Dr. Boulden's office. Mr. Deskin has been return (sic)
to work, as you well know, and apparently has not done
terribly well. He continues to insist that he has
something substantially abnormal with his back.
Dr. Boulden has told Mr. Deskin today that there is
no surgical lesion that can be corrected and as a
matter of fact, he will likely have to live with the
problem. Mr. Deskin is not happy with that response
and apparently is seeking other opinions.
We, at this time, have nothing further to offer Mr.
Deskin. Based on the previous functional capacity that
was done, he still falls within the limits of his
previous job. (Ex. 32, p. 39).
Mr. Bower neglected to say that he still falls within the
limits of his previous job, provided (1) that he performs no
heavy lifting and (2) he stops the truck every 40 to 45 minutes,
walks around and extends his back for one to two minutes (Ex. 20,
p. 23; Ex. 21, p. 24).
Thus, even though Dr. Boulden could not find a surgical
lesion, and his limited CT scan from L3 through S1 found no
objective evidence to account for claimant's continuing pain, and
Dr. Boulden as a low back specialist could not find any permanent
or functional impairment of the lumbar spine, Dr. Boulden,
nevertheless, indicated that claimant (1) was restricted from
Page 9
heavy lifting, (2) that claimant should stop the truck every
forty to forty-five minutes, walk around and extend his back for
one to two minutes, (3) that as long as he continued to drive a
truck he will continue to have problems and (4) that he should
look for an alternative type of work.
Thus, even though Dr. Boulden did not assess a permanent
impairment rating, he nevertheless indicated that claimant was
disabled in several respects from the occupation that he was
performing at the time this injury occurred.
Furthermore, all of his back problems became symptomatic
with this traumatic injury when the 600-pound crate fell and
caught claimant's hand in the metal strap and pulled him forward
down on his knees and his right side struck the trailer.
Even if claimant did not receive a physical impairment he
nevertheless has sustained an economic loss because of the
restrictions on his ability to drive a truck over the road.
Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa
1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
Joann Bell testified that based upon the information in the
claim file that Dr. McGuire and Dr. Boulden were the only
designated treating physicians (Tran. p. 136 & 137). She further
testified that there was no reference in the file that Dr.
Rosenfeld was an authorized treating physician (Tran. p. 138).
Claimant testified that he next consulted Marvin H.
Dubansky, M.D., another orthopedic surgeon, on the advice of his
previous attorney (Ex. C, p. 24 & Tran. p. 95).
Claimant explained that after Dr. Boulden released him he
was not able to get any further treatment even though he
continued to have continuing back pain. Claimant testified, "My
health insurance wouldn't pay for it because it was work related,
and Aetna [the workers' compensation insurance carrier] was more
or less telling me that I had to go with what that doctor said or
nothing at all." (Tran. p. 84).
Claimant saw Dr. Dubansky on July 26, 1991 (Tran. pp. 95 &
123; Ex. 34). Claimant again described his initial symptoms as
severe pain, unable to stand upright, popping and cracking in the
spine and neck (Ex. 33, pp. 40, 41, 42 & 43). In the diagram
completed by claimant for Dr. Dubansky claimant illustrated that
he had an ache in his neck but the main pain was between his
shoulder blades and that he had a stabbing sensation in the upper
dorsal spine (Ex. 33, p. 44). This is the area where Dr. McGuire
indicated that claimant might have a 2 percent permanent
impairment based on long-term pain from an established injury
which had persisted for more than six months.
Page 10
Dr. Dubansky reported on his first office note that
claimant's main complaint was cervical and thoracic strain caused
from the incident at work but that claimant denied that he has or
has had any pain in his lumbar area. Claimant testified that Dr.
Dubansky prescribed medications and showed claimant a better way
to do the exercises that had been recommended by Dr. Boulden and
Mr. Bower (Tran. pp. 34, 47, & 48).
Dr. Dubansky administered some trigger point injections in
the lower dorsal spine which provided some temporary relief on
August 9, 1991 and again on August 16, 1991 (Ex. 34, pp. 49 &
50). Dr. Dubansky wrote that claimant insisted that Dr. Boulden
told him that there was a crack in his back and therefore Dr.
Dubansky ordered a bone scan on August 16, 1991 (Ex. 34, pp. 47,
49 & 50). The bone scan dated August 20, 1991 showed no evidence
of fracture (Ex. 34, p. 51; Ex. 35, p. 52). The cost of the bone
scan performed on August 20, 1991 was $366.35 (Ex. 23, p. 71).
It should be noted that the bone scan recommended and
prescribed by Dr. McGuire had never been performed. It should be
noted also that the insurance carrier and employer have the right
to choose the care but do not have the right of determining what
care is to be provided. The medical care is in the province of
the doctor chosen, not the insurance carrier. Pote v. Mikow
Corp., File No. 694639 (Review-Reopening Decn., June 17, 1986).
On August 30, 1991, Dr. Dubansky also ordered an MRI of the
dorsal spine for September 10, at 8:15 a.m. at Mercy Hospital.
The MRI was actually performed on September 20, 1991 at Mercy
Hospital at a cost of $1,191 (Ex. 44, p. 72). The MRI results
are not in evidence in this case. Defendants' description of
disputes presented at the time of hearing stated that both the
bone scan and MRI were normal (defendants' description of
disputes page 2).
It should be noted that claimant's continuing complaints
were to his dorsal spine and that no objective tests had as yet
been performed on the dorsal spine until claimant saw Dr.
Dubansky. Dr. McGuire discontinued seeing claimant without
performing any objective tests of any kind. Dr. Boulden only
performed a CT scan of the lumbar spine from L3 through S1.
Thus, even though claimant had been complaining about his dorsal
spine ever since his first visit to the emergency room on the
date of the injury, the bone scan and MRI ordered by Dr. Dubansky
were the first objective tests ordered to attempt to make an
objective diagnosis of this portion of claimant's back.
Furthermore, claimant had not received a diagnosis on his dorsal
spine since the emergency room treatment at Des Moines General
Hospital. Dr. McGuire diagnosed neck pain and Dr. Boulden
diagnosed and treated lumbar pain.
Page 11
Claimant testified that he returned to work from August 5,
1991 through November 28, 1991 (Tran. p. 100). When claimant
returned to work at Metro Air it was with a partial release. He
was not fully released (Ex. C, p. 25). Claimant testified that
it was impossible to stop the rig every 40 to 45 minutes and
extend his back for one to two minutes because there are very few
places where you can park a big rig and get out and stretch. The
other reason is because you are always on a tight time schedule
(Tran. p. 94 & 98). Claimant related that the employer was
supposed to have the palletized loads which they did not do (Ex.
C, p. 25).
Claimant further testified that he tried to limit his
lifting but on two occasions he had to call the guy that was in
charge at North Liberty to come down and unload his truck because
it was not loaded on pallets like it was suppose to have been
(Tran. p. 94). Claimant testified that during this period of
time he worked 40 or more hours per week and had a good
attendance record (Tran. pp. 93 & 102).
Claimant testified that he was terminated by the terminal
manager, Tom Olson, on Thanksgiving night, November 28, 1991
because he refused to take a load out when the roads were 80 to
100 percent ice covered and radio and television was advising
everyone to stay home (Ex. C, pp. 27 & 28; Tran. pp. 102 & 103).
Claimant testified that Olson said that, "as long as I can back
the truck into the dock, the truck was going out." (Ex. C, p.
28).
Tom Olson, the terminal manager, was present at the hearing
but did not testify. Therefore, claimant's testimony was not
controverted, contradicted, rebutted or refuted. Thus, it must
be considered as the weight of the evidence on this point.
*****
Claimant further testified that he was granted unemployment
compensation, employer appealed the award, and it was determined
that claimant was entitled to unemployment compensation. It was
not shown claimant committed any misconduct by refusing to go out
on treacherous roads and highways (Ex. C, p. 29). Again, Tom
Olson, terminal manager, was present at the hearing and
claimant's testimony was not controverted, contradicted, rebutted
or refuted.
Claimant testified that he had no further medical care until
he saw Martin S. Rosenfeld, D.O., another orthopedic surgeon on
April 21, 1992 at the suggestion of his current attorney (Tran.
p. 103). Dr. Rosenfeld related that there had always been
confusion because Dr. McGuire thought claimant was complaining of
Page 12
neck problems and Dr. Boulden thought claimant was complaining of
low back problems, whereas, the pain has always been in the
thoracic-lumbar area. Claimant testified that he has always
contended that the main pain was between his shoulder blades and
that has never changed (Tran. p. 115). Claimant further
explained that the pain is in the middle of his back and that is
what he has complained about since day one (Tran. p. 117).
Dr. Rosenfeld diagnosed thoraco-lumbar strain with residual
myofascitis. Dr. Rosenfeld contended that claimant needed
epidural steroid injections in the dorsal spine before he could
determine whether claimant had reached maximum medical
improvement.
With respect to causal connection, Dr. Rosenfeld stated, "It
would seem obvious to me that the March 06, 1991 injury is the
cause of his injury, continuing discomfort, complaints, and
problems." (Ex. 39, pp. 63 & 64).
Dr. Rosenfeld testified live at the hearing that he had been
a board certified orthopedic surgeon since 1977. The doctor
related that he recommended that epidural steroid injections be
given for the reason that the thoraco lumbar junction had never
yet been treated. He further stated that claimant now had
chronic pain and needed treatment and medication for chronic pain
(Tran. pp. 30 & 31).
Claimant returned to Dr. Rosenfeld a little over a year
later on May 25, 1993, at which time Dr. Rosenfeld prescribed the
epidural steroid injections and Elavil. The doctor said the
cause was for treatment of the injury which occurred on March of
1991 (Tran. pp. 37 & 38; Ex. 40, p. 66).
These injections were administered on June 1, 1993, June 15,
1993, and June 21, 1993 at a cost of $1,116 (Ex. 42, p. 70). On
July 23, 1990, Dr. Rosenfeld noted that claimant had a good
response to the epidural injections but that the discomfort
recurred, with the most discomfort in the intrascapular area. He
concluded that since the injections had not significantly
improved his pain that he then felt that claimant had reached
maximum medical improvement. The doctor said that claimant will
need retraining for a more sedentary occupation (Ex. 39, p. 67).
On August 10, 1993, Dr. Rosenfeld opined, "The diagnosis
remains thoraco-lumbar strain with residual myofascitis. I do
believe he has a permanent physical impairment of seven (7%)
percent to the body as a whole as a result of the March 06, 1991
injury." (Ex. 40, p. 65). Dr. Rosenfeld also testified at the
hearing that he used the Guides to the Evaluation of Permanent
Impairment published by the American Medical Association to
arrive at this rating. He further stated that it was based upon
Page 13
thoraco-lumbar strain and residual pain caused by the injury of
March 6, 1991 (Tran. pp. 37-41).
Dr. Rosenfeld said that claimant was restricted from sitting
for prolonged periods of time and that he would have difficulty
loading, unloading, chaining and strapping loads. He further
specified that these restrictions were caused by the injury of
March 6, 1991 (Tran. p. 43). He added that there was no further
treatment or care that he recommended for claimant (Tran. p. 43).
Dr. Rosenfeld testified that the unpaid charges for his
services would amount to approximately $75 or $85, which he
considered fair and reasonable in this community (Tran. p. 43).
Dr. Rosenfeld said he used Table 53 on page 80 of the Guides
to the Evaluation of Permanent Impairment, Third Edition Revised,
II Intervertebral disc or other soft-tissue lesions, C.
Unoperated, with medically documented injury and a minimum of six
months of medically documented pain and rigidity with or without
muscle spasm, associated with moderate to severe degenerative
changes on structural tests; includes unoperated herniated
nucleus pulposus with or without radiculopathy.
Under questioning by opposing counsel Dr. Rosenfeld admitted
that he took the 7 percent from the lumbar column but that the
thoracic column only allowed a 3 percent impairment of the whole
person (Tran. p. 46). He further admitted that neither Dr.
McGuire, Dr. Boulden or Dr. Dubansky found any rigidity (Tran.
pp. 46 & 47). However, he said he found rigidity and that
statement was made in his report of April 21, 1992 when he found
that claimant had decreased side bending at the thoraco-lumbar
area (Ex. 39, pp. 63 & 64; Tran. pp. 48 & 49).
Dr. Rosenfeld explained that the Guides are simply a guide.
He contended that he was still free to apply his own judgment and
he chose to rate claimant at 7 percent (Tran. pp. 51 & 52). Dr.
Rosenfeld further explained that his rating was distinguished
from Dr. McGuire and Dr. Boulden because originally there was
neck pain and there was low back pain and that those resolved.
But he found the thoraco-lumbar pain was a residual that had not
been dealt with by either one of those doctors (Tran. p. 58).
Claimant related that he can only sit for approximately 10
to 15 minutes before his back starts hurting and his neck starts
popping (Tran. pp. 105 & 106). Claimant testified that he could
drive a truck but he would be in a lot of pain doing it.
Claimant testified that trucking companies are not interested in
him once they learn he has had a back injury and a workers'
compensation claim (Tran. p. 107). Most of the time claimant's
back hurts in the same area if it hurts for a long time it
radiates into his shoulder or lower back (Ex. C, p. 34).
Page 14
Claimant testified that he was diagnosed as HIV positive on
July 6, 1992 (Tran. p. 131). The medical records, however, show
that he has been hospitalized and treated for AIDS (Ex. 36, pp.
53-59; Ex. 36, p. 60; Ex. 38, p. 61). When claimant was
hospitalized for Aids in July of 1992, he was given pain killers
for his back at that time (Ex. C, p. 33). He further testified
that he has been dealing with the State of Iowa Rehabilitation
Service since 1992 and is waiting for a determination from them
as to whether he is disabled on account of his back or not before
they proceed with their program (Tran. pp. 111 & 112).
Claimant was approved for social security disability as of
July 1992 with payments to begin January of 1993 (Ex. C, p. 32).
Claimant testified that he was receiving $512 per month for
social security disability effective June of 1992 because they
consider the HIV diagnosis as disabling in itself (Tran. pp. 112,
113, 131 & 132).
Claimant testified that the doctors told him that he was
able to work in terms of daily exercutional abilities (Tran. p.
108). Claimant maintained he could do office work or nonheavy
work (Tran. p. 109). Furthermore, social security permitted him
to earn up to $1,000 per month (Tran. p. 113). Claimant
testified that he is motivated to find work but it is difficult
to find a job truck driving, which is the only occupation he
knows, with his current restrictions (Tran. p. 114). Claimant
further maintained that there are bigger rigs which would be
easier for him to drive because the ride is easier and he has
tried to limit his applications to these particular employers
(Tran. p. 127). Claimant admitted he was not actively job
seeking at the time of his deposition on December 22, 1992 (Ex.
C, p. 6).
Claimant's interrogatory number 16 shows 16 places where
claimant has applied for employment most of which appear to be
truck driving companies (Ex. A, p. 31). The interrogatory is
dated September 14, 1992 (Ex. A, p. 2).
Claimant testified that the applications for employment as a
truck driver all contained questions requesting information about
prior workers' compensation claims or time loss due to injuries
(Ex. C, p. 39).
Based on the foregoing evidence it is determined that the
injury was the cause of permanent impairment and disability. All
of the doctors proceeded on the history of this injury --- Dr.
McGuire, Dr. Boulden, Dr. Dubansky and Dr. Rosenfeld. Dr.
Dubansky and Dr. Rosenfeld specifically stated that claimant's
complaints and problems were caused by this injury.
Page 15
*****
Claimant never was released to return to work as a truck
driver in the same capacity that he was performing prior to the
injury. Dr. Boulden and Mr. Bower released claimant on the
restricted basis that he would not perform any heavy lifting,
that he would stop the truck every 40 to 45 minutes, walk around,
and extend his back for one to two minutes. Thus, claimant is
permanently disabled by this injury based upon Dr. Boulden's
restrictions.
Dr. Rosenfeld found that claimant had sustained a 7 percent
permanent impairment of thoraco-lumbar spine which had not been
either diagnosed or treated by either Dr. McGuire or Dr. Boulden.
Dr. Rosenfeld further stated that claimant was restricted to
perform sedentary work (Ex. 39, p. 67).
Thus, three out of four board certified orthopedic surgeons
found either some percentage of permanent physical impairment or
permanent disability after treating and examining claimant. Dr.
Dubansky did not comment on either permanent impairment or
restrictions in this record.
[Dr. Maguire's opinion is read as an opinion that claimant
does not have any functional disability as a result of her work
injury. Dr. Maguire's statement that "someone" could give
claimant a two percent permanent partial impairment rating falls
far short of a rating by Dr. Maguire. Instead, Dr. Maguire's
testimony is read to state a rating of no permanent impairment.
Dr. Boulden states that claimant has no permanency and
declines to give a rating of impairment. Yet, Dr. Boulden
imposes restrictions that severely restrict claimant's ability to
earn a living as a truck driver, and in fact he states that
continued truck driving will aggravate claimant's condition.
Taken as a whole, Dr. Boulden's testimony does set forth a
finding that claimant's work injury did result in a physical
impairment, even though Dr. Boulden does not assign a rating to
that impairment. Before the work injury, claimant was able to
drive a truck and to sit for long periods of time; after the work
injury, Dr. Boulden states he cannot sit for longer than 30-45
minutes, and that he cannot drive a truck without aggravating his
condition.
Dr. Dubansky expresses no opinion on permanency.
Dr. Rosenfeld states that claimant does have a permanent
impairment as a result of his injury, and he rates it at seven
percent of the body as a whole. However, cross-examination
suggests that if the AMA Guides to the Evaluation of Permanent
Page 16
Impairment are correctly followed, the rating should perhaps be
three percent.
It is noted that Dr. Maguire and claimant did not have the
best physician-patient relationship, and Dr. Maguire declined to
treat claimant further. Dr. Maguire was replaced by other
physicians that also had extensive contact with claimant. Two of
those physicians found claimant to have either significant
permanent restrictions, or a ratable permanent physical
impairment as a result of his injury.]
Considering all of the medical evidence, it appears that
claimant has carried his burden of proof to show that he has
suffered a permanent partial impairment as a result of his work
injury.
Wherefore, (1) based upon the fact that claimant sustained a
traumatic injury when a 600-pound crate fell and caught his right
hand in a metal binding strap and jerked him forward suddenly and
pulled him to his knees on the floor and bumped his right side
against the trailer, (2) based upon the fact that claimant
immediately reported the injury and immediately sought medical
treatment for cervical, dorsal and lumbar spine complaints at Des
Moines General Hospital, (3) based upon the fact that Dr. McGuire
found a possible 2 percent permanent impairment of claimant's
dorsal spine based upon his subjective symptoms of pain which
have persisted for quite some period of time, (4) based upon Dr.
Boulden and Mr. Bower's restrictions that claimant is not to
perform heavy work and is to stop the truck every forty to
forty-five minutes, walk around and extend his back for one to
two minutes, (5) based upon the fact that Dr. Rosenfeld found
that claimant sustained a 7 percent permanent impairment to the
thoraco-lumbar spine and is now restricted to sedentary
occupations because he would have trouble loading, unloading,
strapping and chaining loads, (6) based upon the fact that
claimant is 35 years old, has a high school education, two years
of college and has completed truck driving school, (7) based upon
the fact that claimant is probably foreclosed from many truck
driving jobs, especially from those that require loading and
unloading, strapping or chaining, or riding in trucks with high
vibration, (8) based upon the fact that claimant still has
continuing symptoms of pain in the middle of his back between his
shoulder blades and in his neck and right shoulder, (9) based
upon the fact that claimant was a credible witness, (10) based
upon the fact that claimant's unreasonable termination raises the
question of whether he was terminated because of the restrictions
caused by this injury, and the accommodations that employer was
required to make in order to mitigate their workers' compensation
liability, became burdensome to employer when the loads of
freight were not palletized as they agreed to do, (11) based upon
the fact that claimant's restrictions require him to stop the
Page 17
truck every forty to forty-five minutes, get out walk around and
extend his back for one to two minutes which as claimant pointed
out is almost impossible to do in the truck driving industry,
(12) based upon the fact that his restrictions of no heavy
lifting foreclose him from a rather significant number of
over-the-road truck driving jobs and make him less employable
than healthier workers with no previous injuries or restrictions,
(13) based upon all the factors used to determine industrial
disability Christensen v. Hagen, Inc., vol. I, no. 3, State of
Iowa Industrial Commissioner Decisions 529 (App. Dec. March 26,
1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of
Iowa Industrial Commissioner Decisions 654, 658 (App. Dec.
February 28, 1985), (14) applying agency expertise [Iowa
Administrative Procedure Act 17A.14(5)], it is determined that
claimant has sustained a 15 percent permanent impairment to the
body as a whole and is entitled to 75 weeks of permanent partial
disability benefits. Claimant's permanent disability is
determined as of the end of healing period. Iowa Code section
85.34(2); Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
Page 18
MEDICAL EXPENSES
It is determined that the injury of March 6, 1991 was the
cause of the bone scan ordered by Dr. Dubansky which was
performed on August 20, 1991 and the MRI performed at the request
of Dr. Dubansky on September 20, 1991.
As pointed out earlier claimant only received superficial
treatment for his neck and upper dorsal spine from Dr. McGuire on
three different dates before Dr. McGuire determined that he could
not communicate with claimant and refused to treat him further.
Claimant did receive excellent care for his low back from
Dr. Boulden but as Dr. Boulden pointed out his CT scan as well as
his expertise is limited to the lumbar spine.
Dr. Dubansky and Dr. Rosenfeld both correctly determined
that claimant's pain between his shoulder blades and in the
middle of his back which are defined as the dorsal area and also
the thoraco-lumbar area were never treated even though claimant
reported that these were his main complaints from his first day
in the emergency room until the time of the hearing. Therefore,
claimant is entitled to recover the cost of the bone scan ordered
by Dr. Dubansky in the amount of $366.35 (Ex. 43, p. 71) and the
MRI ordered by Dr. Dubansky in the amount of $1,191.00 (Ex. 44,
p. 72).
*****
Claimant is not entitled to have the thoraco-lumbar spine
treated a second time with a second round of epidural steroid
injections by Dr. Rosenfeld because this area had already been
diagnosed and treated by Dr. Dubansky with epidural steroid
injections.
The epidural steroid injections to the dorsal spine by Dr.
Dubansky only temporarily improved claimant's condition the first
time as well as the second time. Therefore, it cannot be stated
that the second round of injections substantially improved
claimant's condition. Therefore, the injections ordered by Dr.
Rosenfeld are not allowed.
Furthermore, Dr. Rosenfeld was clearly an unauthorized
physician and his charges in the amount of $75 or $85 cannot be
allowed as authorized medical treatment pursuant to Iowa Code
section 85.27.
Whether his charges are allowable as an Iowa Code section
85.39 examination was not one of the designated issues in this
case by the parties and therefore no determination is made on
this point. Claimant and his attorney knew that Dr. Rosenfeld
Page 19
was unauthorized. Joann Bell testified that Dr. Rosenfeld was
unauthorized. The proper method to obtain the authorized care of
Dr. Rosenfeld would have been to have made a request to the
defendants for alternate care and if it was rejected claimant was
entitled to bring an action for alternate medical care pursuant
to rule 343 IAC 4.48 and could have received a decision and
determination from the agency within ten days after the receipt
of the proper application if a telephone hearing was held or 14
working days of a proper application after an in-person hearing
was held. Rule 343 IAC 4.48(14).
Wherefore, it is determined that claimant is entitled to
recover $366.35 for the bone scan ordered by Dr. Dubansky and
$1,191.00 for the MRI ordered by Dr. Dubansky (Ex. 43, p. 71; Ex.
44, p.72). Claimant is not entitled to $1,161.00 for epidural
steroid injections to the dorsal spine ordered by Dr. Rosenfeld
(Ex. 42, p. 70).
It should be noted that Dr. McGuire earlier recommended and
prescribed a bone scan which defendants never had performed and
therefore did not follow the advice and judgment of their own
selected physician.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed April 14, 1994 are adopted as final agency action.
WHEREFORE, the decision of the deputy is affirmed.
ORDER
THEREFORE, it is ordered:
That defendants pay to claimant seventy-five (75) weeks of
permanent partial disability benefits based upon a fifteen
percent (15%) industrial disability to the body as a whole at the
stipulated rate of three hundred fourteen and 96/100 dollars
($314.96) per week in the total amount of twenty-three thousand
six hundred twenty-two dollars ($23,622.00) commencing on August
5, 1991 as stipulated to by the parties.
That interest will accrue pursuant to Iowa Code section
85.30.
That these benefits are to be paid in a lump sum.
That defendants pay to claimant or the provider of medical
services three hundred sixty-six and 35/100 dollars ($366.35) for
the bone scan and one thousand one hundred ninety-one dollars
($1,191.00) for the MRI as described above. Iowa Code section
Page 20
85.27.
That the costs of this action, including the cost of the
attendance of the court reporter at hearing and the transcript of
hearing, are charged to defendants pursuant to rule 343 IAC 4.33
and Iowa Code sections 86.19(1) and 86.40.
That defendants file claim activity reports as requested by
this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of September, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert W. Pratt
Attorney at Law
6959 University Ave.
Des Moines, IA 50311-1540
Mr. Glenn Goodwin
Ms. Dawn R. Siebert
Attorneys at Law
4th Floor, Equitable Bldg.
Des Moines, IA 50309
1108.50; 1401; 1402.40;
1803; 2501; 2700
Filed September 26, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
TOM LYLE DESKIN, :
:
Claimant, :
:
vs. :
: File No. 978786
METRO AIR, INC., :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
AETNA CASUALTY & SURETY CO., :
:
Insurance Carrier, :
Defendants. :
_________________________________________________________________
1108.50, 1401, 1402.40, 1803, 2501, 2700
Claimant injured his cervical, dorsal and lumbar spine in a
traumatic unloading incident.
Dr. McGuire treated the cervical and upper dorsal area
briefly then dismissed claimant because he found that he had a
communication problem and a personality problem with claimant.
Dr. Boulden then treated the lumbar spine until claimant
attained maximum medical improvement.
Claimant continued to have dorsal spine pain and was forced
to seek treatment from Dr. Dubansky at his own expense. His
health insurance would not pay because it was workers'
compensation and workers' compensation would not pay because Dr.
Boulden had discharged claimant.
The bone scan and MRI ordered by Dr. Dubansky were allowed.
Dr. McGuire had recommended a bone scan earlier and wrote a
prescription for it but it was never performed. Insurance
Page 2
carriers and employers can choose the doctor; however the care to
be provided is in the province of the doctor chosen. The bone
scan and MRI were allowed as reasonable treatment pursuant to
Iowa Code section 85.27. Claimant is entitled to care reasonably
suited to treat the injury without undue inconvenience to the
injured employee. Claimant was not entitled to a second round of
epidural steroid injections ordered by Dr. Rosenfeld because he
had already received this treatment from Dr. Dubansky with only
temporary relief.
Dr. McGuire speculated that Claimant possibly had suffered a
two percent permanent impairment of the dorsal spine.
Dr. Rosenfeld found that claimant had sustained a seven
percent permanent impairment of the thoraco-lumbar area, was
restricted to sedentary work and should find other work.
Dr. Boulden found no permanent partial impairment and issued
no permanent impairment rating because he found no surgical
lesion and his lumbar CT scan showed no objective evidence of
injury. Dr. Boulden and Mr. Bower purported to return claimant
to work with the ability to perform his over-the-road truck
driving job based on their physical capacity examination.
However, the conditions were (1) that claimant was to perform no
heavy lifting, (2) claimant was to stop the truck every 40 to 45
minutes and extend his back for one or two minutes, (3) that as
long as claimant drove a truck he would have continued problems
and (4) that claimant should look for an alternative type of
work. It was noted that work restrictions were more indicative
of permanent disability than a percentage impairment rating.
Furthermore, Claimant suffered an economic loss because of his
restrictions on over-the-road truck driving. Blacksmith and
McSpadden cited.
Claimant returned to accommodated work for about four months
and was fired because he would not take a load out on 80 to 100
percent ice covered highways. This unreasonable termination
raised the question of whether the real reason for the
termination was the difficulty that employer encountered in
providing accommodated work in order to reduce their worker
compensation liability earlier.
Claimant was age 35. He completed high school, two years of
college, and truck driving school. He is probably foreclosed
from most truck driving jobs. Claimant has AIDS and is receiving
social security disability for this reason. He has not been
actively seeking employment. It was determined that claimant had
sustained a 15 percent industrial disability to the body as a
whole and was entitled to 75 weeks of permanent partial
disability benefits.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
TOM LYLE DESKIN,
Claimant,
vs.
File No. 978786
METRO AIR, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
AETNA CASUALTY & SURETY CO.,
Insurance Carrier,
Defendants.
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration filed by Tom Lyle
Deskin, claimant, against Metro Air, Inc., employer and
Aetna Casualty & Surety Co., insurance carrier, defendants
for benefits as the result of an alleged injury which
occurred on March 6, 1991. A hearing was held in Des
Moines, Iowa, on September 9, 1993, and the case was fully
submitted at the close of the hearing. Claimant was
represented by Robert W. Pratt. Defendants were represented
by Dawn R. Siebert. The record consists of the testimony of
Tom Lyle Deskin, claimant, Joann Bell, claim representative,
Martin Rosenfeld, D.O., orthopedic surgeon, joint exhibits 1
through 44 and defendants' exhibits A through F. Also
present in the courtroom at the time of the hearing was Tom
Olson, terminal manager. The deputy ordered a transcript of
the hearing.
ISSUES
The parties submitted the following issues for
determination at the time of the hearing.
Whether the injury was the cause of permanent
disability.
Whether claimant is entitled to permanent disability
benefits, and if so, the extent of benefits to which he is
entitled.
Whether claimant is entitled to the payment of certain
medical expenses pursuant to Iowa Code section 85.27.
FINDINGS OF FACT
causal connection/entitlement/permanent disability
It is determined that the injury was the cause of
permanent disability and that claimant sustained a 15
percent industrial disability to the body as a whole and
Page 2
that claimant is entitled to 75 weeks of permanent partial
disability benefits.
Claimant, born December 10, 1957, was 33 years old at
the time of the injury and 35 years old at the time of the
hearing. He completed high school, two years of college and
truck driving school which lasted four to six weeks. His
primary occupation has been an over-the-road truck driver.
He performed clerical work in the air force for two years
and was honorably discharged. He also performed clerical
work for his father for short periods of time obtaining
information from courthouse records to be used in real
estate appraisals. Claimant denies and there is no evidence
of any prior back problems or workers' compensation claims
(Transcript pp. 61-72, 83 & 129).
Claimant started to work for employer as an
over-the-road truck driver in August of 1990.
Claimant injured his back on March 6, 1991 while
unloading freight at North Liberty, Iowa at approximately
4:00 a.m. in the morning. Claimant testified that a
600-pound crate toppled over and caught his right hand in
the metal binding strap. He was jerked forward and fell to
his knees and hit his right arm and right side on the side
of the trailer. Claimant testified that he immediately
experienced a burning sensation between his shoulder blades
and that he subsequently developed pain in his mid to low
back as well as headaches. He reported the injury by
telephone to employer but managed to get the tractor back to
Des Moines with some difficulty. Upon arriving back at the
terminal claimant reported to employer that he was going to
the emergency room to be treated for this injury (Tran. pp.
72-77).
William Eischen, D.O., at the emergency room reported,
"Crate caught R hand it pulled him forward, pt states he
immediately experienced a burning sensation between
shoulders. Now has tingling type pain mid to low back with
numbness tingling sensation R side of back. C/O headaches.
pt states he is unable to straighten up." (Exhibit 1, p. 1).
Dr. Eischen diagnosed dorsal spine strain and sprain
(Ex. 2, p. 2). Claimant was taken off work by Becky
Davis-Kramer, D.O., on March 6, 1991 (Ex. 3, p. 3).
X-rays were taken of the cervical, dorsal and lumbar
spine on March 6, 1991. The cervical films showed subtle
early degenerative disc disease at C-7, T-1 but no other
cervical abnormalities. The thoracic spine repeated the
reading for the cervical spine and found minimal spondylosis
but no signs of fracture. The lumbar spine disclosed L-5,
S-1 degenerative changes at their facets, spondylolysis, but
no other abnormalities of significance (Ex. 5, p. 5).
Mark Rankleman, D.O., diagnosed dorsal muscle strain on
March 11, 1991 and ordered physical therapy and continued
claimant off work (Ex. 6, p. 6; Ex. 7, p. 7; Ex. 8, p. 8;
Ex. 9, p. 9 & 10).
Page 3
On March 14, 1991, Dr. Davis-Kramer diagnosed
thoraco/lumbar strain, continued claimant off work and
ordered more physical therapy (Ex. 10, p. 11).
Next, claimant saw Daniel J. McGuire, M.D., an
orthopedic surgeon, on three occasions on March 25, April 8,
and April 15, 1991. Dr. McGuire also verified by his notes
that claimant complained of low back pain, upper back pain,
neck pain, pain into his shoulders and headaches. Dr.
McGuire recorded that over the 19 days since the injury that
his low back pain was almost completely gone but that he had
persistent neck, shoulder and right arm discomfort. He kept
claimant off work and prescribed medications and physical
therapy.
Dr. McGuire estimated, "I think his time off work will
be three to six months. His prognosis is excellent. His
permanent partial disability should be in the single
digits." (Ex. 13, p. 14).
Dr. McGuire talked about a bone scan because claimant
had so many areas of pain but there is no evidence from his
notes or otherwise in the record that a bone scan was
performed at Dr. McGuire's request.
A communication problem developed between claimant and
Dr. McGuire because claimant considered all of his various
areas of pain as one area of pain and Dr. McGuire considered
them as several areas of pain. Dr. McGuire also became
upset with claimant because he complained to the nurse that
he had to wait 45 minutes in a straight back chair with his
back in pain in order to see the doctor. This seems to have
greatly upset Dr. McGuire. Dr. McGuire stated on April 15,
1991, "I am unable to communicate with him. I apologized.
I think he should get a new physician. I called Aetna and
talked to somebody there and told them I was sorry I could
not help this gentleman and that I felt that we need to
proceed with a different physician." (Ex. 13, p. 15).
Claimant explained this incident as follows,
And he told me that -- that I had -- that every
time I come in to see him that my pain would
change location, and I refuted with him saying,
"It's always been the same location. I don't know
who you're getting me confused with." And he told
me that he thought I should go see another doctor,
so I did." (Ex. C, p. 20).
Claimant denied that he was rude to Dr. McGuire's
nurse. Claimant testified, "No, that's not true." (Tran. p.
116).
Dr. McGuire wrote a letter to defendants' counsel on
September 1, 1993 in which he stated he did not find any
evidence of neurological damage. He further stated that he
did not doubt that claimant may have some aches and pains
following this work incident based on subjective complaints
but based on objective physical examination and objective
diagnostic studies he was unable to place any permanent
Page 4
restrictions on him. He further stated that he could not
give any objective reason to assign a permanent impairment
rating. However, Dr. McGuire's office notes do not show
that he performed any objective tests nor are there any
introduced into evidence by either party. Dr. McGuire did
suggest the bone scan but there is no evidence that one was
carried out at his request (Ex. 13, pp. 14 & 15).
In his letter of September 1, 1993, Dr. McGuire
suggested that claimant possibly might be entitled to a 2
percent disability rating. Dr. McGuire stated,
Based on the fact that his initial problem was
"dorsal spine sprain and strain" and, according to
the AMA Guidelines, whether we use the Third or
Fourth, it makes no difference, someone could
assign an impairment of 2 percent as it pertains
to his dorsal "thoracic" spine. I cannot give you
an objective reason to do that; but, since he
claims his injury was to the "dorsal spine", and
there was no spasm or rigidity noted and his CT
scan and bone scan are benign, someone could
assign a 2 percent disability rating. (Ex. D, p.
2).
It would appear that Dr. McGuire is making reference to
the Guides to the Evaluation of Permanent Impairment, Third
Edition Revised, Table 53. Impairments Due to Specific
Disorders of the Spine,
II. Intervertebral disc or other soft-tissue
lesions:
B. Unoperated, with medically documented injury
and a minimum of six months of medically
documented pain and rigidity with or without
muscle spasm, associated with none-to minimal
degenerative changes on structural tests
In the thoracic column it shows a percentage
impairment of the whole person of 2 percent. This
is found on page 80 of the Revised Third Edition.
It would further appear that Dr. McGuire is relying on
a bone scan and CT scan taken by other physicians since his
records do not show any diagnostic tests were actually taken
by him.
The worksheet of Dr. McGuire has a place to show what
tests were ordered. The worksheet lists myelogram, CT scan,
MRI, bone scan, EMG and lab work. There are no entries for
any of these tests and in the column "date scheduled" there
is also no entries (Ex. 14, p. 16). Dr. McGuire did give
the insurance carrier a prescription for a whole body bone
scan on April 19, 1991 but there is no evidence that it was
ever used (Ex. 15, p. 17).
In conclusion, it would appear that even though Dr.
McGuire had communication problems and personality problems
with claimant, and even though he found no objective
Page 5
evidence of impairment, he nevertheless, granted that it was
possible for claimant to have a 2 percent permanent
impairment based upon his continuing subjective symptoms of
pain in the thoracic spine.
Claimant testified that the insurance carrier then
directed him to see William R. Boulden, M.D., an orthopedic
surgeon, on April 25, 1991 (Tran. p. 83; Ex. C, p. 21).
Dr. Boulden also verified that claimant had complaints
in all three segments of his back --- lumbar, thoracic and
cervical. The opening sentence in Dr. Boulden's notes are
as follows, "Tom is a 33 year old truck driver who is here
with low back pain, upper lumbar pain, neck and shoulder
pain." (Ex. 16, p. 18). Dr. Boulden also related that
claimant had been treated for his neck and that his neck
seemed to be getting better but that claimant felt that his
back pain was worsening. Dr. Boulden ordered a limited CAT
scan from L3 to S1 which turned out to be very normal in
appearance (Ex. 17, p. 20 & Ex. E).
Dr. Boulden recommended back conditioning exercises
preparatory to work hardening and an eventual return to
work in five weeks (Ex. 16, p. 18 to Ex. 19, p. 22).
Claimant testified that the restrictions under which Dr.
Boulden returned him to work would not enable him to work
with any other trucking company in the industry, but that
employer did agree to accommodate him by honoring these
restrictions (Ex. C, pp. 21 & 22).
The first release signed by Dr. Boulden is dated July
3, 1991. It states that claimant is released back to work
on July 8, 1991 because no heavy lifting will be required of
him. The release states, "On 7-8-91 this patient is
released back to work Reports to follow no lifting
restrictions based on patient information that no heavy
lifting is required. Should take intermittent breaks." (Ex.
20, p. 23).
Thus, it would appear that since employer had agreed to
accommodate claimant with no heavy lifting it was not
necessary for Dr. Boulden to write this in his release
specifically (Ex. C, p. 22; Tran. p. 88). At the same time
it is clear that claimant was restricted from performing
heavy lifting.
Claimant testified at the hearing that he showed the
restrictions to employer and they agreed to palletize the
loads so that there would be no lifting.
Dr. Boulden issued a similar release dated July 12,
1991, in which he stated that, "This patient is released
back to work with driving for 40-45 minutes, Stop, walk
around, extend for 1-2 minutes" (Ex. 21, p. 24).
Claimant testified that he did return to work for
employer with the understanding that these were his
restrictions, however, there were several occasions when the
freight which came out of Chicago was not palletized.
Therefore claimant could not carry out the rest of his
Page 6
duties which were unloading the trailer. Claimant testified
there were two different occasions when he had to call the
supervisor that lives up in Iowa City or Cedar Rapids to
come down and help him unload the trailer (Tran. p. 90).
On July 23, 1991, Dr. Boulden stated, "Effective today,
we feel he has reached his maximum medical improvement.
Since we have not found any type of operative lesion, we do
not feel there is any permanent disability rating." (Ex. 22,
p. 25).
On July 29, 1991, Dr. Boulden wrote to claimant's
attorney as follows:
... I understand that the patient still has
symptoms, but basically, these symptoms we feel
are from the soft tissues of this back and we have
not found anything abnormal in his diagnosis from
cast (sic) scan or clinical examination. We have
not found anything that can be treated surgically
and he has maxed out his conservative management.
I do not evaluate necks and am only a low back
specialist. I have previously discussed that with
him.
In reference to how long is (sic) pain will be
present, I am afraid that as long as he is a truck
driver, there will always be some components of
pain based on the fact of that type of occupation.
I do not recommend pain pills to treat pain in the
back since it is a very poor choice of therapy.
The only treatment that he needs to do is
properly use his back and maintain himself in good
physical shape and in the future consider
alternative type of work from the stand point that
truck drivers are notorious for developing back
problems (Ex. 23, p. 26).
On August 8, 1991, Dr. Boulden wrote to the insurance
carrier as follows,
I believe you have a copy of the patient's
functional capacities evaluation by this point.
We do not recommend any further treatment. He
has been maxed out in his treatment and no surgery
is expected to help him.
I feel that he has reached his maximum medical
improvement as to 7/23/91.
The main problem that I have is the fact that
the patient will definitely have a problem
returning back to being a truck driver. Truck
driving, as you well know, shows a high incidence
of low back problems. I think that type of work
may continue to aggravate his back.
Page 7
I do not feel that the patient has sustained
any type of permanent injuries since we have not
identified any pathology (Ex. 24, p. 28).
On July 3, 1991, Thomas W. Bower, L.P.T., who conducted
the therapy program prescribed by Dr. Boulden wrote as
follows,
The patient demonstrates full range of motion
at this time, and although he still has some
thoracic spine pain, the lower back is completely
normal in terms of function and pain.
....
We have given this patient a return to work
effective July 8, 1991 for full release under the
present restrictions, although this patient tells
me that he is not going to have to do any heavy
lifting. There is some concern that the long
distance driving is going to be a problem, and I
have advised him to not sustain a sitting position
for longer than 30 to 45 minutes at a time.
The following restrictions would apply to this
individual:
MAXIMUM FREQUENT REPETITIVE
POSITION LIFT LIFT LIFT
Floor to waist 70 lbs. 42 lbs. 32 lbs.
Overhead 50 lbs. 40 lbs. 30 lbs.
Carry 72 lbs. 42 lbs. 32 lbs.
Push/Pull 185 lbs. (Ex. 31, p. 37 & 38)
Claimant testified that Mr. Bower gave an evaluation at
the end of the physical therapy and he was pushed to do as
well as he could. He agreed that he did that and was able
to lift those weights, "... but then after I did this, then
my back was always in so much pain I couldn't do anything of
any good for about the next day and a half. So I mean, I
could do that; but after I did that, I was in extreme pain."
(Ex. C, p. 23).
On July 23, 1991, Mr. Bower wrote,
I have seen Tommy Deskin with Dr. Boulden
today, in Dr. Boulden's office. Mr. Deskin has
been return (sic) to work, as you well know, and
apparently has not done terribly well. He
continues to insist that he has something
substantially abnormal with his back.
Dr. Boulden has told Mr. Deskin today that
there is no surgical lesion that can be corrected
and as a matter of fact, he will likely have to
live with the problem. Mr. Deskin is not happy
with that response and apparently is seeking other
opinions.
Page 8
We, at this time, have nothing further to offer
Mr. Deskin. Based on the previous functional
capacity that was done, he still falls within the
limits of his previous job. (Ex. 32, p. 39).
Mr. Bower neglected to say that he still falls within
the limits of his previous job, provided (1) that he
performs no heavy lifting and (2) he stops the truck every
40 to 45 minutes, walks around and extends his back for one
to two minutes (Ex. 20, p. 23; Ex. 21, p. 24).
Thus, even though Dr. Boulden could not find a surgical
lesion, and his limited CT scan from L3 through S1 found no
objective evidence to account for claimant's continuing
pain, and Dr. Boulden as a low back specialist could not
find any permanent or functional impairment of the lumbar
spine, Dr. Boulden, nevertheless, indicated that claimant
(1) was restricted from heavy lifting, (2) that claimant
should stop the truck every forty to forty-five minutes,
walk around and extend his back for one to two minutes, (3)
that as long as he continued to drive a truck he will
continue to have problems and (4) that he should look for an
alternative type of work.
Thus, even though Dr. Boulden did not assess a
permanent impairment rating, he nevertheless indicated that
claimant was disabled in several respects from the
occupation that he was performing at the time this injury
occurred.
Furthermore, all of his back problems became
symptomatic with this traumatic injury when the 600-pound
crate fell and caught claimant's hand in the metal strap and
pulled him forward down on his knees and his right side
struck the trailer.
Even if claimant did not receive a physical impairment
he nevertheless has sustained an economic loss because of
the restrictions on his ability to drive a truck over the
road. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354
(Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980).
Joann Bell testified that based upon the information in
the claim file that Dr. McGuire and Dr. Boulden were the
only designated treating physicians (Tran. p. 136 & 137).
She further testified that there was no reference in the
file that Dr. Rosenfeld was an authorized treating physician
(Tran. p. 138).
Claimant testified that he next consulted Marvin H.
Dubansky, M.D., another orthopedic surgeon, on the advice of
his previous attorney (Ex. C, p. 24 & Tran. p. 95).
Claimant explained that after Dr. Boulden released him
he was not able to get any further treatment even though he
continued to have continuing back pain. Claimant testified,
"My health insurance wouldn't pay for it because it was work
related, and Aetna [the workers' compensation insurance
carrier] was more or less telling me that I had to go with
Page 9
what that doctor said or nothing at all." (Tran. p. 84).
Claimant saw Dr. Dubansky on July 26, 1991 (Tran. pp.
95 & 123; Ex. 34). Claimant again described his initial
symptoms as severe pain, unable to stand upright, popping
and cracking in the spine and neck (Ex. 33, pp. 40, 41, 42 &
43). In the diagram completed by claimant for Dr. Dubansky
claimant illustrated that he had an ache in his neck but the
main pain was between his shoulder blades and that he had a
stabbing sensation in the upper dorsal spine (Ex. 33, p.
44). This is the area where Dr. McGuire indicated that
claimant might have a 2 percent permanent impairment based
on long-term pain from an established injury which had
persisted for more than six months.
Dr. Dubansky reported on his first office note that
claimant's main complaint was cervical and thoracic strain
caused from the incident at work but that claimant denied
that he has or has had any pain in his lumbar area.
Claimant testified that Dr. Dubansky prescribed medications
and showed claimant a better way to do the exercises that
had been recommended by Dr. Boulden and Mr. Bower (Tran. pp.
34, 47, & 48).
Dr. Dubansky administered some trigger point injections
Page 10
in the lower dorsal spine which provided some temporary
relief on August 9, 1991 and again on August 16, 1991 (Ex.
34, pp. 49 & 50). Dr. Dubansky wrote that claimant insisted
that Dr. Boulden told him that there was a crack in his back
and therefore Dr. Dubansky ordered a bone scan on August 16,
1991 (Ex. 34, pp. 47, 49 & 50). The bone scan dated August
20, 1991 showed no evidence of fracture (Ex. 34, p. 51; Ex.
35, p. 52). The cost of the bone scan performed on August
20, 1991 was $366.35 (Ex. 23, p. 71).
It should be noted that the bone scan recommended and
prescribed by Dr. McGuire had never been performed. It
should be noted also that the insurance carrier and employer
have the right to choose the care but do not have the right
of determining what care is to be provided. The medical
care is in the province of the doctor chosen, not the
insurance carrier. Pote v. Mikow Corp., File No. 694639
(Review-Reopening Decn., June 17, 1986).
On August 30, 1991, Dr. Dubansky also ordered an MRI of
the dorsal spine for September 10, at 8:15 a.m. at Mercy
Hospital. The MRI was actually performed on September 20,
1991 at Mercy Hospital at a cost of $1,191 (Ex. 44, p. 72).
The MRI results are not in evidence in this case.
Defendants' description of disputes presented at the time of
hearing stated that both the bone scan and MRI were normal
(defendants' description of disputes page 2).
It should be noted that claimant's continuing
complaints were to his dorsal spine and that no objective
tests had as yet been performed on the dorsal spine until
claimant saw Dr. Dubansky. Dr. McGuire discontinued seeing
claimant without performing any objective tests of any kind.
Dr. Boulden only performed a CT scan of the lumbar spine
from L3 through S1. Thus, even though claimant had been
complaining about his dorsal spine ever since his first
visit to the emergency room on the date of the injury, the
bone scan and MRI ordered by Dr. Dubansky were the first
objective tests ordered to attempt to make an objective
diagnosis of this portion of claimant's back. Furthermore,
claimant had not received a diagnosis on his dorsal spine
since the emergency room treatment at Des Moines General
Hospital. Dr. McGuire diagnosed neck pain and Dr. Boulden
diagnosed and treated lumbar pain.
Claimant testified that he returned to work from August
5, 1991 through November 28, 1991 (Tran. p. 100). When
claimant returned to work at Metro Air it was with a partial
release. He was not fully released (Ex. C, p. 25).
Claimant testified that it was impossible to stop the rig
every 40 to 45 minutes and extend his back for one to two
minutes because there are very few places where you can park
a big rig and get out and stretch. The other reason is
because you are always on a tight time schedule (Tran. p. 94
& 98). Claimant related that the employer was supposed to
have the palletized loads which they did not do (Ex. C, p.
25).
Claimant further testified that he tried to limit his
Page 11
lifting but on two occasions he had to call the guy that was
in charge at North Liberty to come down and unload his truck
because it was not loaded on pallets like it was suppose to
have been (Tran. p. 94). Claimant testified that during
this period of time he worked 40 or more hours per week and
had a good attendance record (Tran. pp. 93 & 102).
Claimant testified that he was terminated by the
terminal manager, Tom Olson, on Thanksgiving night, November
28, 1991 because he refused to take a load out when the
roads were 80 to 100 percent ice covered and radio and
television was advising everyone to stay home (Ex. C, pp. 27
& 28; Tran. pp. 102 & 103). Claimant testified that Olson
said that, "as long as I can back the truck into the dock,
the truck was going out." (Ex. C, p. 28).
Tom Olson, the terminal manager, was present at the
hearing but did not testify. Therefore, claimant's
testimony was not controverted, contradicted, rebutted or
refuted. Thus, it must be considered as the weight of the
evidence on this point.
Such an unreasonable termination raises the unanswered
question of whether claimant was terminated because employer
no longer wished to endure the inconvenience of providing
accommodated work of palletized loads for claimant. This
caused an inconvenience to their supervisors in eastern Iowa
because claimant called them to unload the truck when the
loads were not palletized. This raises the serious question
of whether employer used this incident as an excuse to
terminate claimant and replace him with a healthier worker
without any restrictions who required no accommodations.
Claimant further testified that he was granted
unemployment compensation, employer appealed the award, and
it was determined that claimant was entitled to unemployment
compensation. It was not shown claimant committed any
misconduct by refusing to go out on treacherous roads and
highways (Ex. C, p. 29). Again, Tom Olson, terminal
manager, was present at the hearing and claimant's testimony
was not controverted, contradicted, rebutted or refuted.
Claimant testified that he had no further medical care
until he saw Martin S. Rosenfeld, D.O., another orthopedic
surgeon on April 21, 1992 at the suggestion of his current
attorney (Tran. p. 103). Dr. Rosenfeld related that there
had always been confusion because Dr. McGuire thought
claimant was complaining of neck problems and Dr. Boulden
thought claimant was complaining of low back problems,
whereas, the pain has always been in the thoracic-lumbar
area. Claimant testified that he has always contended that
the main pain was between his shoulder blades and that has
never changed (Tran. p. 115). Claimant further explained
that the pain is in the middle of his back and that is what
he has complained about since day one (Tran. p. 117).
Dr. Rosenfeld diagnosed thoraco-lumbar strain with
residual myofascitis. Dr. Rosenfeld contended that claimant
needed epidural steroid injections in the dorsal spine
before he could determine whether claimant had reached
Page 12
maximum medical improvement.
With respect to causal connection, Dr. Rosenfeld
stated, "It would seem obvious to me that the March 06, 1991
injury is the cause of his injury, continuing discomfort,
complaints, and problems." (Ex. 39, pp. 63 & 64).
Dr. Rosenfeld testified live at the hearing that he had
been a board certified orthopedic surgeon since 1977. The
doctor related that he recommended that epidural steroid
injections be given for the reason that the thoraco lumbar
junction had never yet been treated. He further stated that
claimant now had chronic pain and needed treatment and
medication for chronic pain (Tran. pp. 30 & 31).
Claimant returned to Dr. Rosenfeld a little over a year
later on May 25, 1993, at which time Dr. Rosenfeld
prescribed the epidural steroid injections and Elavil. The
doctor said the cause was for treatment of the injury which
occurred on March of 1991 (Tran. pp. 37 & 38; Ex. 40, p.
66).
These injections were administered on June 1, 1993,
June 15, 1993, and June 21, 1993 at a cost of $1,116 (Ex.
42, p. 70). On July 23, 1990, Dr. Rosenfeld noted that
claimant had a good response to the epidural injections but
that the discomfort recurred, with the most discomfort in
the intrascapular area. He concluded that since the
injections had not significantly improved his pain that he
then felt that claimant had reached maximum medical
improvement. The doctor said that claimant will need
retraining for a more sedentary occupation (Ex. 39, p. 67).
On August 10, 1993, Dr. Rosenfeld opined, "The
diagnosis remains thoraco-lumbar strain with residual
myofasciitis. I do believe he has a permanent physical
impairment of seven (7%) percent to the body as a whole as a
result of the March 06, 1991 injury." (Ex. 40, p. 65). Dr.
Rosenfeld also testified at the hearing that he used the
Guides to the Evaluation of Permanent Impairment published
by the American Medical Association to arrive at this
rating. He further stated that it was based upon
thoraco-lumbar strain and residual pain caused by the injury
of March 6, 1991 (Tran. pp. 37-41).
Dr. Rosenfeld said that claimant was restricted from
sitting for prolonged periods of time and that he would have
difficulty loading, unloading, chaining and strapping loads.
He further specified that these restrictions were caused by
the injury of March 6, 1991 (Tran. p. 43). He added that
there was no further treatment or care that he recommended
for claimant (Tran. p. 43).
Dr. Rosenfeld testified that the unpaid charges for his
services would amount to approximately $75 or $85, which he
considered fair and reasonable in this community (Tran. p.
43).
Dr. Rosenfeld said he used Table 53 on page 80 of the
Guides to the Evaluation of Permanent Impairment, Third
Page 13
Edition Revised, II Intervertebral disc or other soft-tissue
lesions, C. Unoperated, with medically documented injury and
a minimum of six months of medically documented pain and
rigidity with or without muscle spasm, associated with
moderate to severe degenerative changes on structural tests;
includes unoperated herniated nucleus pulposus with or
without radiculopathy.
Under questioning by opposing counsel Dr. Rosenfeld
admitted that he took the 7 percent from the lumbar column
but that the thoracic column only allowed a 3 percent
impairment of the whole person (Tran. p. 46). He further
admitted that neither Dr. McGuire, Dr. Boulden or Dr.
Dubansky found any rigidity (Tran. pp. 46 & 47). However,
he said he found rigidity and that statement was made in his
report of April 21, 1992 when he found that claimant had
decreased side bending at the thoraco-lumbar area (Ex. 39,
pp. 63 & 64; Tran. pp. 48 & 49).
Dr. Rosenfeld explained that the Guides are simply a
guide. He contended that he was still free to apply his own
judgment and he chose to rate claimant at 7 percent (Tran.
pp. 51 & 52). Dr. Rosenfeld further explained that his
rating was distinguished from Dr. McGuire and Dr. Boulden
because originally there was neck pain and there was low
back pain and that those resolved. But he found the
thoraco-lumbar pain was a residual that had not been dealt
with by either one of those doctors (Tran. p. 58).
Claimant related that he can only sit for approximately
10 to 15 minutes before his back starts hurting and his neck
starts popping (Tran. pp. 105 & 106). Claimant testified
that he could drive a truck but he would be in a lot of pain
doing it. Claimant testified that trucking companies are
not interested in him once they learn he has had a back
injury and a workers' compensation claim (Tran. p. 107).
Most of the time claimant's back hurts in the same area if
it hurts for a long time it radiates into his shoulder or
lower back (Ex. C, p. 34).
Claimant testified that he was diagnosed as HIV
positive on July 6, 1992 (Tran. p. 131). The medical
records, however, show that he has been hospitalized and
treated for AIDS (Ex. 36, pp. 53-59; Ex. 36, p. 60; Ex. 38,
p. 61). When claimant was hospitalized for Aids in July of
1992, he was given pain killers for his back at that time
(Ex. C, p. 33). He further testified that he has been
dealing with the State of Iowa Rehabilitation Service since
1992 and is waiting for a determination from them as to
whether he is disabled on account of his back or not before
they proceed with their program (Tran. pp. 111 & 112).
Claimant was approved for social security disability as
of July 1992 with payments to begin January of 1993 (Ex. C,
p. 32).
Claimant testified that he was receiving $512 per month
for social security disability effective June of 1992
because they consider the HIV diagnosis as disabling in
itself (Tran. pp. 112, 113, 131 & 132).
Page 14
Claimant testified that the doctors told him that he
was able to work in terms of daily exercutional abilities
(Tran. p. 108). Claimant maintained he could do office work
or nonheavy work (Tran. p. 109). Furthermore, social
security permitted him to earn up to $1,000 per month (Tran.
p. 113). Claimant testified that he is motivated to find
work but it is difficult to find a job truck driving, which
is the only occupation he knows, with his current
restrictions (Tran. p. 114). Claimant further maintained
that there are bigger rigs which would be easier for him to
drive because the ride is easier and he has tried to limit
his applications to these particular employers (Tran. p.
127). Claimant admitted he was not actively job seeking at
the time of his deposition on December 22, 1992 (Ex. C, p.
6).
Claimant's interrogatory number 16 shows 16 places
where claimant has applied for employment most of which
appear to be truck driving companies (Ex. A, p. 31). The
interrogatory is dated September 14, 1992 (Ex. A, p. 2).
Claimant testified that the applications for employment
as a truck driver all contained questions requesting
information about prior workers' compensation claims or time
loss due to injuries (Ex. C, p. 39).
Based on the foregoing evidence it is determined that
the injury was the cause of permanent impairment and
disability. All of the doctors proceeded on the history of
this injury --- Dr. McGuire, Dr. Boulden, Dr. Dubansky and
Dr. Rosenfeld. Dr. Dubansky and Dr. Rosenfeld specifically
stated that claimant's complaints and problems were caused
by this injury.
With respect to claimant's dorsal spine, Dr. McGuire
determined that claimant's injury would allow a permanent
impairment rating of 2 percent based on the AMA Guides as
described above.
Dr. Boulden did not find any permanent physical
impairment because there were no surgical lesions and there
was no objective evidence for the cause of claimant's lumbar
pain. Nevertheless, disability can be predicated upon
permanent restrictions as well as a percentage impairment
rating. In fact, many deputies, consider restrictions more
indicative of permanent disability than a percentage
impairment rating.
Claimant never was released to return to work as a
truck driver in the same capacity that he was performing
prior to the injury. Dr. Boulden and Mr. Bower released
claimant on the restricted basis that he would not perform
any heavy lifting, that he would stop the truck every 40 to
45 minutes, walk around, and extend his back for one to two
minutes. Thus, claimant is permanently disabled by this
injury based upon Dr. Boulden's restrictions.
Dr. Rosenfeld found that claimant had sustained a 7
percent permanent impairment of thoraco-lumbar spine which
Page 15
had not been either diagnosed or treated by either Dr.
McGuire or Dr. Boulden. Dr. Rosenfeld further stated that
claimant was restricted to perform sedentary work (Ex. 39,
p. 67).
Thus, three out of four board certified orthopedic
surgeons found either some percentage of permanent physical
impairment or permanent disability after treating and
examining claimant. Dr. Dubansky did not comment on either
permanent impairment or restrictions in this record.
Wherefore, (1) based upon the fact that claimant
sustained a traumatic injury when a 600-pound crate fell and
caught his right hand in a metal binding strap and jerked
him forward suddenly and pulled him to his knees on the
floor and bumped his right side against the trailer, (2)
based upon the fact that claimant immediately reported the
injury and immediately sought medical treatment for
cervical, dorsal and lumbar spine complaints at Des Moines
General Hospital, (3) based upon the fact that Dr. McGuire
found a possible 2 percent permanent impairment of
claimant's dorsal spine based upon his subjective symptoms
of pain which have persisted for quite some period of time,
(4) based upon Dr. Boulden and Mr. Bower's restrictions that
claimant is not to perform heavy work and is to stop the
truck every forty to forty-five minutes, walk around and
extend his back for one to two minutes, (5) based upon the
fact that Dr. Rosenfeld found that claimant sustained a 7
percent permanent impairment to the thoraco-lumbar spine and
is now restricted to sedentary occupations because he would
have trouble loading, unloading, strapping and chaining
loads, (6) based upon the fact that claimant is 35 years
old, has a high school education, two years of college and
has completed truck driving school, (7) based upon the fact
that claimant is probably foreclosed from many truck driving
jobs, especially from those that require loading and
unloading, strapping or chaining, or riding in trucks with
high vibration, (8) based upon the fact that claimant still
has continuing symptoms of pain in the middle of his back
between his shoulder blades and in his neck and right
shoulder, (9) based upon the fact that claimant was a
credible witness, (10) based upon the fact that claimant's
unreasonable termination raises the question of whether he
was terminated because of the restrictions caused by this
injury, and the accommodations that employer was required to
make in order to mitigate their workers' compensation
liability, became burdensome to employer when the loads of
freight were not palletized as they agreed to do, (11) based
upon the fact that claimant's restrictions require him to
stop the truck every forty to forty-five minutes, get out
walk around and extend his back for one to two minutes which
as claimant pointed out is almost impossible to do in the
truck driving industry, (12) based upon the fact that his
restrictions of no heavy lifting foreclose him from a rather
significant number of over-the-road truck driving jobs and
make him less employable than healthier workers with no
previous injuries or restrictions, (13) based upon all the
factors used to determine industrial disability Christensen
v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial
Commissioner Decisions 529 (App. Dec. March 26, 1985);
Page 16
Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of
Iowa Industrial Commissioner Decisions 654, 658 (App. Dec.
February 28, 1985), (14) applying agency expertise [Iowa
Administrative Procedure Act 17A.14(5)], it is determined
that claimant has sustained a 15 percent permanent
impairment to the body as a whole and is entitled to 75
weeks of permanent partial disability benefits. Claimant's
permanent disability is determined as of the end of healing
period. Iowa Code section 85.34(2); Teel v. McCord, 394
N.W.2d 405 (Iowa 1986).
MEDICAL EXPENSES
It is determined that the injury of March 6, 1991 was
the cause of the bone scan ordered by Dr. Dubansky which was
performed on August 20, 1991 and the MRI performed at the
request of Dr. Dubansky on September 20, 1991.
As pointed out earlier claimant only received
superficial treatment for his neck and upper dorsal spine
from Dr. McGuire on three different dates before Dr. McGuire
determined that he could not communicate with claimant and
refused to treat him further.
Claimant did receive excellent care for his low back
from Dr. Boulden but as Dr. Boulden pointed out his CT scan
as well as his expertise is limited to the lumbar spine.
Dr. Dubansky and Dr. Rosenfeld both correctly
determined that claimant's pain between his shoulder blades
and in the middle of his back which are defined as the
dorsal area and also the thoraco-lumbar area were never
treated even though claimant reported that these were his
main complaints from his first day in the emergency room
until the time of the hearing. Therefore, claimant is
entitled to recover the cost of the bone scan ordered by Dr.
Dubansky in the amount of $366.35 (Ex. 43, p. 71) and the
MRI ordered by Dr. Dubansky in the amount of $1,191.00 (Ex.
44, p. 72).
Employer and insurance carrier have the right to choose
the care but when they fail to provide adequate care then
claimant is free to go into the open market and obtain care
which is reasonably suited to promptly treat the
work-related injury without undue inconvenience to the
employee. Iowa Code section 85.27 unnumbered paragraph 4.
Claimant is not entitled to have the thoraco-lumbar
spine treated a second time with a second round of epidural
steroid injections by Dr. Rosenfeld because this area had
already been diagnosed and treated by Dr. Dubansky with
epidural steroid injections.
The epidural steroid injections to the dorsal spine by
Dr. Dubansky only temporarily improved claimant's condition
the first time as well as the second time. Therefore, it
cannot be stated that the second round of injections
substantially improved claimant's condition. Therefore, the
injections ordered by Dr. Rosenfeld are not allowed.
Page 17
Furthermore, Dr. Rosenfeld was clearly an unauthorized
physician and his charges in the amount of $75 or $85 cannot
be allowed as authorized medical treatment pursuant to Iowa
Code section 85.27.
Whether his charges are allowable as an Iowa Code
section 85.39 examination was not one of the designated
issues in this case by the parties and therefore no
determination is made on this point. Claimant and his
attorney knew that Dr. Rosenfeld was unauthorized. Joann
Bell testified that Dr. Rosenfeld was unauthorized. The
proper method to obtain the authorized care of Dr. Rosenfeld
would have been to have made a request to the defendants for
alternate care and if it was rejected claimant was entitled
to bring an action for alternate medical care pursuant to
rule 343 IAC 4.48 and could have received a decision and
determination from the agency within ten days after the
receipt of the proper application if a telephone hearing was
held or 14 working days of a proper application after an
in-person hearing was held. Rule 343 IAC 4.48(14).
Wherefore, it is determined that claimant is entitled
to recover $366.35 for the bone scan ordered by Dr. Dubansky
and $1,191.00 for the MRI ordered by Dr. Dubansky (Ex. 43,
p. 71; Ex. 44, p.72). Claimant is not entitled to $1,161.00
for epidural steroid injections to the dorsal spine ordered
by Dr. Rosenfeld (Ex. 42, p. 70).
It should be noted that Dr. McGuire earlier recommended
and prescribed a bone scan which defendants never had
performed and therefore did not follow the advice and
judgment of their own selected physician.
CONCLUSIONS OF LAW
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
That the injury of March 6, 1991 was the cause of
permanent impairment and disability to claimant's dorsal
spine. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d
867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18
N.W.2d 607 (1945).
That claimant sustained a 15 percent industrial
disability to the body as a whole and is entitled to 75
weeks of permanent partial disability benefits. Iowa Code
section 85.34(2)(u).
That the injury of March 6, 1991 was the cause of the
bone scan in the amount of $366.35 and the MRI in the amount
of $1,191.00 and that it was not legally the cause of the
second round of epidural steroid injections ordered by Dr.
Rosenfeld in the amount of $1,116.00 in June of 1993. Iowa
Code section 85.27.
ORDER
THEREFORE, IT IS ORDERED:
Page 18
That defendants pay to claimant seventy-five (75) weeks
of permanent partial disability benefits based upon a
fifteen percent (15%) industrial disability to the body as a
whole at the stipulated rate of three hundred fourteen and
96/100 dollars ($314.96) per week in the total amount of
twenty-three thousand six hundred twenty-two dollars
($23,622.00) commencing on August 5, 1991 as stipulated to
by the parties.
That interest will accrue pursuant to Iowa Code section
85.30.
That these benefits are to be paid in a lump sum.
That defendants pay to claimant or the provider of
medical services three hundred sixty-six and 35/100 dollars
($366.35) for the bone scan and one thousand one hundred
ninety-one dollars ($1,191.00) for the MRI as described
above. Iowa Code section 85.27.
That the costs of this action, including the cost of
the attendance of the court reporter at hearing and the
transcript of hearing, are charged to defendants pursuant to
rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40.
That defendants file claim activity reports as
requested by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of April, 1994.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Robert W. Pratt
Attorney at Law
6959 University Ave.
Des Moines, IA 50311-1540
Mr. Glenn Goodwin
Ms. Dawn R. Siebert
Attorneys at Law
4th Floor, Equitable Bldg.
Des Moines, IA 50309
1108.50, 1401, 1402.40, 1803, 2501,
2700
Filed April 14, 1994
Walter R. McManus, Jr.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
TOM LYLE DESKIN,
Claimant,
vs.
File No. 978786
METRO AIR, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
AETNA CASUALTY & SURETY CO.,
Insurance Carrier,
Defendants.
___________________________________________________________
1108.50, 1401, 1402.40, 1803, 2501, 2700
Claimant injured his cervical, dorsal and lumbar spine
in a traumatic unloading incident.
Dr. McGuire treated the cervical and upper dorsal area
briefly then dismissed claimant because he found that he had
a communication problem and a personality problem with
claimant.
Dr. Boulden then treated the lumbar spine until
claimant attained maximum medical improvement.
Claimant continued to have dorsal spine pain and was
forced to seek treatment from Dr. Dubansky at his own
expense. His health insurance would not pay because it was
workers' compensation and workers' compensation would not
pay because Dr. Boulden had discharged claimant.
The bone scan and MRI ordered by Dr. Dubansky were
allowed. Dr. McGuire had recommended a bone scan earlier
and wrote a prescription for it but it was never performed.
Insurance carriers and employers can choose the doctor;
however the care to be provided is in the province of the
doctor chosen. The bone scan and MRI were allowed as
reasonable treatment pursuant to Iowa Code section 85.27.
Claimant is entitled to care reasonably suited to treat the
injury without undue inconvenience to the injured employee.
Claimant was not entitled to a second round of epidural
steroid injections ordered by Dr. Rosenfeld because he had
already received this treatment from Dr. Dubansky with only
temporary relief.
Dr. McGuire speculated that Claimant possibly had
Page 2
suffered a 2 percent permanent impairment of the dorsal
spine.
Dr. Rosenfeld found that claimant had sustained a 7
percent permanent impairment of the thoraco-lumbar area, was
restricted to sedentary work and should find other work.
Dr. Boulden found no permanent partial impairment and
issued no permanent impairment rating because he found no
surgical lesion and his lumbar CT scan showed no objective
evidence of injury. Dr. Boulden and Mr. Bower purported to
return claimant to work with the ability to perform his
over-the-road truck driving job based on their physical
capacity examination. However, the conditions were (1) that
claimant was to perform no heavy lifting, (2) claimant was
to stop the truck every 40 to 45 minutes and extend his back
for one or two minutes, (3) that as long as claimant drove a
truck he would have continued problems and (4) that claimant
should look for an alternative type of work. It was noted
that work restrictions were more indicative of permanent
disability than a percentage impairment rating.
Furthermore, Claimant suffered an economic loss because of
his restrictions on over-the-road truck driving. Blacksmith
and McSpadden cited.
Claimant returned to accommodated work for about four
months and was fired because he would not take a load out on
80 to 100 percent ice covered highways. This unreasonable
termination raised the question of whether the real reason
for the termination was the difficulty that employer
encountered in providing accommodated work in order to
reduce their worker compensation liability earlier.
Claimant was age 35. He completed high school, two
years of college, and truck driving school. He is probably
foreclosed from most truck driving jobs. Claimant has AIDS
and is receiving social security disability for this reason.
He has not been actively seeking employment. It was
determined that claimant had sustained a 15 percent
industrial disability to the body as a whole and was
entitled to 75 weeks of permanent partial disability
benefits.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JAYNE CENTENO, :
:
Claimant, :
:
vs. :
: File No. 978798
HY-VEE FOOD STORES, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by
claimant, Jayne Centeno, against her former employer, Hy-Vee
Food Stores, Inc., and its insurance carrier, Employers
Mutual Insurance Company. Claimant sustained an injury on
March 16, 1991 which arose out of and in the course of her
employment.
The evidence in this case consists of testimony from
the claimant, John Centeno, claimant's husband, and James
Siemens, manager of the Ottumwa Hy-Vee Food Store; and,
Joint Exhibits 1-12. The case came on for hearing before
the undersigned deputy industrial commissioner on August 4,
1993 at Oskaloosa, Iowa.
FINDINGS OF FACT
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
Claimant, Jayne Centeno is married with two children.
At the time of her injury in March of 1991, she was 32 years
of age.
Claimant is a high school graduate, and earned her
degree in 1976. She has received an Associate Arts degree
in psychology from Ottumwa Heights College, Ottumwa, Iowa,
and a Bachelor of Arts degree in management science from
Buena Vista College, Ottumwa, Iowa.
Claimant worked as a bookkeeper's assistant on a
full-time basis for the defendant employer from 1980 until
January of 1991, when her child was born. Once her child
was born, claimant requested and received part-time work.
While her intent was to return within a few months to a
full-time position with the store, these plans were never
discussed with the management of the Hy-Vee Food Store.
Page 2
While working for the store, she received bonuses
contingent upon the store's profitability, and was also paid
$1,918.40 in vacation benefits.
On March 16, 1991, claimant was walking down the
stairs, slipped and fell. She was taken by ambulance to the
Ottumwa Regional Hospital, where she was treated by Donald
Berg, M.D., an orthopedic specialist. Dr. Berg examined
claimant, and diagnosed a compression fracture at the
mid-back, T-8. She was fitted with a Jewitt brace, and was
instructed not to perform any heavy lifting, twisting or
bending with her back for several months. Although Dr. Berg
recommended hospitalization, claimant was nursing her young
child and requested home care. Dr. Berg released claimant
to recover at her home, but maintained that claimant would
require assistance in caring for her newborn child,
particularly lifting her child. He recommended in-home care
for a six-week period. The insurance company was aware of
this recommendation, and claimant requested in-home care,
but the request was denied. During the next several weeks,
claimant proceeded to hire help, and paid $666.75 for the
in-home care. She stated that the individuals hired were
not registered nurses (Joint Exhibit 4, pp. 115-116; 119;
Jt. Ex. 5, pp. 127-130; Jt. Ex. 7).
Claimant returned to Dr. Berg on June 17, 1991. She
was complaining of upper back discomfort, but Dr. Berg felt
she could return to work on July 1, 1991 with a 10 pound
lifting restriction for one month. His final diagnosis was
a compression fracture of T-8, and a permanent physical
impairment rating of 3 percent, secondary to the fracture
(Jt. Ex. 4, pp. 118-119).
In August of 1991, claimant began a two-week course of
physical therapy at the Ottumwa Regional Health Center.
After an examination that revealed some limitation lumbar
extension on the right side, Karen Meyer, the physical
therapist, determined that claimant should undergo hot pack
treatment and massages to the upper back. A series of
exercises was also explored (Jt. Ex. 4, p. 123).
Claimant received additional physical therapy in
January of 1992, and in addition to hot packs and massages,
also received ultrasound therapy. She also reported that
she was suffering from headaches. Claimant was to undergo
treatment three times per week for one to two weeks (Jt. Ex.
4, pp. 119; 124-126).
Claimant returned to Dr. Berg in March of 1992 with
complaints of neck and upper back pain and occasional
headaches. A neurovascular examination showed good range of
motion, but elicited tenderness in the dorsal spine area.
No muscle spasms were noted. Dr. Berg recommended
evaluation for muscle weakness in the neck and dorsal spine
muscles at the Southern Iowa Rehabilitation Unit.
(Apparently, this evaluation was not undertaken at this
time, as the only notes from the Southern Iowa
Rehabilitation Unit are dated January through March of 1993
(Jt. Ex. 6).)
Page 3
On April 7, 1993 claimant underwent an evaluation
performed by Peter Wirtz, M.D. His examination revealed
tenderness on the right and left side of the eighth vertebra
in the thoracic spine. No muscle spasm was noted, and range
of motion tests on the neck and back were within normal
limits. Dr. Wirtz diagnosed a "healed T7 thoracic
vertebrae" and recommended continuing her at-home regimen of
stretching and physical therapy exercises for neck
symptomatology. Dr. Wirtz believed that claimant's symptoms
would continue to be present, "but would be limiting only
with excessive activities beyond her physiologic strength
and dexterity; therefore, social activities and home
activities and work activities within her physical ability
would be tolerated." He opined that moving furniture,
painting ceilings and chopping ice would produce temporary
symptoms, and should be avoided. Lifting a child would also
cause a temporary flare-up of her symptoms (Jt. Ex. 8).
Currently, claimant works at the Hy-Vee courtesy desk
one day per week for approximately seven hours per day. Her
job duties include waiting on customers for doling out
change for can and bottle deposits; receiving payment of
utility bills; cashing checks; and other miscellaneous
duties. While she continues to perform exercises
recommended by her physical therapists, claimant continues
to feel pain in the back area, which travels up to her
shoulders, neck and head. She complained of severe
headaches. Her symptoms come and go on a day-to-day basis.
Claimant testified that the pain does not keep her from
performing any activities, but that it is a constant pain,
particularly felt when she performs repetitive movements.
Her sleep patterns have changed, and she no longer sleeps in
her bed during the night, but is forced to sleep on the
couch because it provides more comfort.
Joint Exhibit 11 contains several requests written by
claimant to her supervisor regarding time off. Most of the
notes are out of order, poorly copied, and unreadable.
Joint Exhibit 12 is claimant's statement regarding
mileage incurred totaling 1,336 miles times $.21 per mile
totaling $280.56.
Dr. Berg was deposed for the case. He confirmed that
claimant had reached maximum healing on the date she was
released to return to work, July 1, 1991. He posed that
claimant would continue to have intermittent flare-ups of
her condition (Jt. Ex. 9, pp. 14-15 or pp. 163-164). He was
of the opinion that claimant should not lift more than 40 to
50 pounds on a frequent basis, and a 3 percent permanent
impairment to the body as a whole due to the compression
fracture (Jt. Ex. 9, pp. 18-19 or pp. 167-168). When
pressed, Dr. Berg stated that he assigned an additional 3
percent impairment because of persistent pain and muscle
weakness, but he "tend[ed] not to rate those things because
it seems to be an intermittent problem." (Jt. Ex. 9, p. 20
or p. 169) He was unable to state that these problems were
permanent (Jt. Ex. 9, p. 20 or p. 169). He believed all
physical therapy treatment was necessitated by the original
Page 4
injury (Jt. Ex. 9, p. 40-41).
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to address is whether claimant is
entitled to temporary disability or healing period benefits.
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. App. P. 14(f).
Iowa Code section 85.33 provides the following
guidance:
Except as provided in subsection 2 of this
section, the employer shall pay to an employee for
injury producing temporary total disability weekly
compensation benefits, as provided in section
85.32, until the employee has returned to work or
is medically capable of returning to employment
substantially similar to the employment in which
the employee was engaged at the time of injury,
whichever occurs first.
Iowa Code section 85.34(1) provides, in relevant part:
Compensation for permanent disabilities and
during a healing period for permanent partial
disabilities shall be payable to an employee as
provided in this section...
1. Healing period. If an employee has suffered
a personal injury causing permanent partial
disability for which compensation is payable as
provided in subsection 2 of this section, the
employer shall pay to the employee compensation
for a healing period, as provided in section
85.37, beginning on the date of injury, and until
the employee has returned to work or it is
medically indicated that significant improvement
from the injury is not anticipated or until the
employee is medically capable of returning to
employment substantially similar to the employment
in which the employee was engaged at the time of
the injury, whichever occurs first.
Dr. Berg is clearly claimant's treating physician. He
provided an opinion that claimant had sustained a 3 percent
permanent impairment rating due to the compression fracture.
While claimant argues that an additional 3 percent is added
to this rating due to the pain and muscle weakness, the
undersigned is unable to conclude that Dr. Berg intended
that claimant has a 6 percent impairment. His opinion with
respect to the additional 3 percent impairment is equivocal,
and is not based on a reasonable degree of medical
certainty. He limits claimant's activities to no lifting of
more than 40 to 50 pounds on a frequent basis.
The only other physician involved in the case is Dr.
Wirtz, who provided a one-time evaluation of claimant's
Page 5
condition. He assigns no permanent impairment rating, and
limits claimant's activities only to those social, home and
work activities within her physical ability. This opinion
provides little, if any, guidance as to claimant's ability
to perform work activities.
While a treating physician's opinion is not
automatically given more weight than that opinion provided
by an evaluating physician, the undersigned finds Dr. Berg's
assessment of claimant's abilities and physical condition to
be more persuasive.
As a result, it is found that claimant has sustained a
permanent disability due to the work-related accident. She
is entitled to healing period benefits from March 17, 1991
through June 30, 1991, as she was released to return to work
beginning July 1, 1991. While claimant argues that the
healing period lasted longer, until March 16, 1993, her
argument is totally without merit, and the undersigned is
not provided with any justification for allowing claimant to
receive healing period benefits for two years after the
injury. Claimant was released to return to work on July 1,
1991, and while the undersigned agrees that she was released
to light duty work, claimant has always performed light duty
work for the employer. The description of her duties
provided by claimant reveals that she has always been
employed in a sendentary/light duty capacity, so the 10
pound lifting restriction imposed on her activities for one
month following the release to return to work, does not
extend her healing period. Under no circumstances would
claimant's healing period be extended to March 15, 1993, as
claimant argues. There is no question that claimant was
released to return to work similar to that which she was
performing at the time of her injury.
The next issue to address is claimant's entitlement to
permanent partial disability benefits. As claimant has
sustained an injury to the body as a whole, an evaluation of
her industrial disability is warranted.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Page 6
Factors to be considered in determining industrial
disability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
10 percent of the total value, education a value of 15
percent of total, motivation - 5 percent; work experience -
30 percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
At the time of the injury, claimant was 32 years of
age. She has several post-high school degrees, and has
maintained a successfully career and working relationship
with the employer, Hy-Vee.
Although claimant sustained a serious injury due to her
fall at work, she has recuperated and there appears to be no
significant deleterious side effects stemming from the
injury and subsequent impairment. Her physical limitations
are such that they do not substantially interfere with her
work or social activities. While claimant is under a work
restriction not to lift more than 40 to 50 pounds on a
frequent basis, there is no evidence in the record that she
has ever been required to perform this amount of lifting in
any job she has held. Likewise, although she has a 3
percent permanent impairment, range of motion tests
performed have yielded results that are within normal
limits.
Claimant has had various exacerbations resulting from
activities such as painting ceilings, chipping ice from the
driveway and moving heavy furniture. The undersigned
believes it would be common for most people to feel some
aches and pains after performing these types of activities.
After considering all of the factors listed above that
Page 7
comprise an industrial disability, including the three month
healing period; the 3 percent impairment; the lifting
restriction of not more than 40 to 50 pounds on a frequent
basis; the employer's willingness to continue to employ
claimant in a suitable position; claimant's elevated level
of education; the nature of the injury; and, claimant's
motivation to work more hours, it is found that she has
sustained a 5 percent industrial disability.
The next issue to resolve is claimant's workers'
compensation rate.
The parties were able to stipulate that claimant was
married at the time of her injury, and entitled to four
exemptions.
Apparently, claimant believes her rate is $246.09 per
week, based on her earnings thirteen weeks prior to the
injury, including bonuses and vacation pay. Claimant does
not provide the gross weekly earnings, but merely states
that she is a full-time employee, and even though she had
requested and had received part-time status one month prior
to the injury, she intended to return to full time status
eventually.
The employer was unaware of her intentions, and
defendants argue that claimant's rate is $147.09 based on
gross earnings totaling $10,161.23 during the 50 weeks prior
to the injury. Defendants argue that claimant is a
part-time employee, and her rate is calculated under Iowa
Code section 85.36(10).
The undersigned is unable to find a workers'
compensation rate of $246.09 for a married person with four
exemptions in the appropriate rate book, the July 1, 1990
Guide to Iowa Workers' Compensation Claim Handling. In
fact, when checking the July, 1991 and July, 1992 Guides,
she is unable to find this particular rate. Claimant failed
to provide the necessary information to substantiate a rate
other than the one provided by defendant.
However, the law allows vacation and regular bonus pay
to be included in calculation of a workers' compensation
rate. As a result, it is found that claimant's rate is
$185.59 based on gross earnings of $13,321.29 divided by 50
weeks, or $266.43 per week.
Finally, claimant argues that she is entitled to
reimbursement of $666.75 paid for in-home care during her
recovery time.
Iowa Code section 85.27 provides, in relevant part:
The employer, for all injuries compensable
under this chapter or chapter 85A, shall furnish
reasonable surgical, medical, dental, osteopathic,
chiropractic, podiatric, physical rehabilitation,
nursing, ambulance and hospital services and
supplies therefor and shall allow reasonably
necessary transportation expense incurred for such
Page 8
services.
Claimant has asked that penalty benefits be awarded due
to defendants' refusal to pay medical benefits.
The agency has consistently held that penalty benefits
are allowed only for weekly benefits unreasonably terminated
or delayed. Claimant's argument fails.
While claimant may have been entitled to reimbursement
for those amounts paid for in-home care, the record is
confusing as to the amount of time spent helping claimant
recover from her injury, and what percentage of time the
in-home care spent on other activities, such as baby-sitting
and housekeeping. Claimant has failed to establish
entitlement to reimbursement for this amount.
Also, defendants' affirmative defense of lack of
authorization fails. The record reflects that the
defendants did not take any initiative in directing
claimant's care. They did not authorized anyone to manage
claimant's care. To argue that they did not authorize care
equates to an acquiescence as to claimant's choice of care.
As a result, Dr. Berg is the authorized treating physician.
He believed the original injury mandated further treatment.
As a result, all treatment recommended by Dr. Berg is to be
paid by the defendants, except that amount paid to the
in-home assistance. As stated earlier, the record shows
that some of the help included house cleaning and
baby-sitting duties.
Finally, the defendants sent claimant to Dr. Wirtz for
an independent medical examination. They did not pay her
expenses incurred for driving to the appointment.
Defendants are required to pay for "the reasonable cost of
transportation." Iowa Code section 85.39.
ORDER
THEREFORE, it is ordered:
That defendants shall pay claimant healing period
benefits from March 16, 1991 through June 30, 1991, at the
rate of one hundred eighty-five and 59/100 dollars ($185.59)
per week commencing July 1, 1991.
That defendants shall pay medical expenses provided by
Donald Berg, M.D., and the costs of physical therapy
recommended by Dr. Berg.
That defendants shall immediately reimburse the costs
incurred for travel to the independent medical examination
performed by Peter Wirtz, M.D.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
Page 9
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of August, 1993.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr David J Hester
Attorney at Law
111 W Second St
P O Box 716
Ottumwa IA 52501
Ms Ann Clark
Mr E J Kelly
Attorney at Law
Terrace Ctr Ste 111
2700 Grand Ave
Des Moines IA 50312
5-1803
Filed August 26, 1993
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JAYNE CENTENO, :
:
Claimant, :
:
vs. :
: File No. 978798
HY-VEE FOOD STORES, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
Claimant awarded 5% industrial disability due to age (35);
education (two post-high school degrees); motivation to
return to work (questionable); employer's willingness to
employ claimant in suitable job (present); severity of
injury (compression fracture right T8); length of healing
period (two months); restrictions (no frequent lifting of
40-50 pounds).
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
TIMOTHY THOMAS, :
:
Claimant, :
: File Nos. 978914
vs. : 1039815
:
RDR CONTRACTING CORP. and : A R B I T R A T I O N
KEITH L. DE HEUS, :
: D E C I S I O N
Employer, :
:
and :
:
ALLIED GROUP INS. CO., :
:
Insurance Carrier, :
:
and :
:
MIDLAND HOMES :
:
and :
:
HAWKEYE SECURITY, :
:
Insurance Carrier, :
Defendants. :
:
------------------------------------------------------------
STATEMENT OF THE CASE
These cases came on for hearing on July 5, 1994, at Des
Moines, Iowa. File No. 978914 is a proceeding in
arbitration wherein claimant seeks compensation for
permanent partial disability benefits as a result of an
alleged injury occurring on December 7, 1990. RDR
Contracting Corporation then cross-petitioned and brought in
Midland Homes contending that claimant incurred an injury on
November 23, 1992. The record in the proceedings consist of
the testimony of the claimant; claimant's wife, Sheila
Thomas; Tracy Ingram; Chester Purkey; Keith DeHeus; Jackie
Buffum and Bob Seely; and, claimant's exhibits 1 through 11
and joint exhibits A through K(2).
ISSUES
The issues for resolution are:
1. Whether an injury arose out of and in the course of
claimant's employment on December 7, 1990 or November 23,
1992.
Page 2
2. Whether there is a causal connection as to any
temporary total disability, healing period or permanent
partial disability and the alleged injuries;
3. The nature and extent of any disability and
claimant's entitlement to disability benefits, if any;
4. Whether claimant gave notice under 85.23 (as to
file 1039815 only);
5. The issue of 85.27 medical benefits - whether
defendants should provide claimant with an MRI; and,
6. Whether claimant is entitled to any 86.13 penalty
benefits.
FINDINGS OF FACT
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant is a 32-year-old high school graduate who has
no other further formal education after high school. He was
in the military but that training was of no benefit for his
subsequent jobs other than it gave him some computer
training.
Claimant testified as to his work history which
basically was manual labor in either construction, working
for the railroad, maintenance or carpenter or general labor.
Claimant worked for RDR on two occasions, the first one from
around April 1985 to May 1989, and then after a three month
lapse went back to work for defendant employer when offered
more money. He worked with them until December 7, 1990.
Claimant described the nature of his work which was
basically a rough framer carpenter.
Claimant described how he got hurt in December 1990.
He said his back progressively got worse due to lifting and
constructing walls. He said the December 7, 1990 date was
chosen because this is the date Keith DeHeus came up with.
Claimant stated he was not working on December 7, 1990,
and because he was unable to work he went up to a River Bend
addition in Cedar Rapids to have Keith fill out a workers'
compensation claim. He said he discussed the date that the
injury took place and indicated it was on the Jim Jenson
home putting up 17 foot walls. He said there were three of
them, himself, Keith and Dale, lifting up the wall. He said
he noticed a pain different than previous pains and it got
worse as the day went on. He indicated it was a ten hour
day and normally he would work from 6:30 to 5:00 or 5:30 in
the evening.
Claimant then was referred to joint exhibit I, which is
a photocopy of the defendant RDR's calendar book. Claimant
said that Mr. DeHeus did not have these sheets with him when
a date was picked. Claimant said he wanted to make sure a
Page 3
workers' compensation claim would be filed so he could
proceed with his medicine due to the pain in his low back
and left leg. He described his pain to be on the scale of
9.75 out of the scale of 1 to 10. Claimant described how
hard the work was and the various places and houses he
worked on. These are represented by claimant's exhibit 10.
He identified about 14 of those pictures as houses he worked
on and did the framing. Claimant indicated he thought these
houses he worked on were about two years before his alleged
injury of December 7, 1990. Claimant described the sizes of
some of these houses which appeared to be around 2,500 to
3,000 square feet. Claimant indicated it seems like he
always had a pain or something while working for RDR because
of the nature of the work. There is no dispute that this
type of work can cause one to have pain after a good hard
day at work.
Claimant acknowledged that on September 9, 1991, it was
indicated he had reached maximum improvement but he said he
couldn't go back to his old job. Claimant then became
employed with Midland Homes on December 4, 1991. He said he
got this job on his own. He described the nature of this
job which is basically as a supervisory-manager for the
construction of single family homes. He supervises the
subcontractors and also does the punch list and sees that a
job is done right.
Claimant insisted that he incurred no new injury on
November 23, 1992, while working for Midland Homes.
Claimant said he has had good days and bad days and
sometimes doesn't feel like getting out of bed. It has
affected his attitude and he gets grouchy and irritable. He
indicated he has depression, back pain, loses sleep, has
lost his appetite and is in constant pain.
Claimant acknowledged that he told Douglas Koontz,
M.D., the work hardening program was a joke and a waste of
time as they were trying to work him into work he previously
did but felt that he would not be able to go back to that
work. Claimant testified as to the various things he cannot
do now that he contends he could do prior to November 7,
1990.
On cross-examination, claimant then indicated he was
not injured on December 7, 1990, but went to Cedar Rapids to
have Mr. DeHeus fill out his workers' compensation form. He
acknowledged that on claimant's exhibit 1, item 29, he wrote
in December 7, 1990 as the date of his injury but indicated
again that he did not injure himself on that date. He
indicated he was present when Keith DeHeus's deposition was
taken and agreed that he was not working on December 7,
1990, as Mr. DeHeus indicated. He then indicated it was in
September or October 1990, at the Grand Oaks job, that he
injured himself. Again, he was asked and admitted he was
not working and received no injury on December 7, 1990, but
that his injury was in October 1990 before Thanksgiving.
Claimant was referred to his petition in which the injury
date of December 7, 1990 was stated thereon and that he
injured himself lifting the walls. Claimant again indicated
that it was September or October 1990 that he incurred an
Page 4
injury when he lifted the walls and not December 7, 1990.
Claimant then was referred to interrogatory No. 6, page
61, joint exhibit D. Again, he set out in detail what
happened on December 7, 1990. These interrogatories were
signed approximately one and one-half years after his
alleged December 7, 1990 injury.
Claimant believed he told the doctor that he was
injured on December 7, 1990.
On further cross-examination, claimant was referred to
line 23 and following of joint exhibit K(2), which date is
also in joint exhibit K(1), in which he again emphasized his
injury was on December 7, 1990, and explained what he was
doing on that particular day. He specifically refers to
building a house and describes the size of the walls, the
length, the height, the header, etc. The undersigned might
note that this is contrary to his testimony in court in
which he absolutely said he was not working on that date.
He also emphasized he was not hurt on that date. Claimant
could not show or indicate any medical records where there
is a history that claimant indicated he was hurt in October
or September 1990. He also could not show anywhere where he
told people that he had an accident that did not occur on
December 7, 1990, but instead in September or October 1990.
Claimant then seemed to indicate a specific incident
occurred prior to Thanksgiving but he really couldn't recall
a specific time. He then said he remembers lifting a wall
and having a sudden incident of pain.
On the cross-examination, the claimant seemed to be
contending that he means disability rather than injury when
he refers to December 7, 1990. It would appear the claimant
started using the disability word when there were either
arguments or interruptions among the attorneys as to certain
questions and claimant seemed to have got the opinion that
it may be a benefit to use the word disability rather than
injury. Of course, the petition refers to injury and
everything else during his deposition refers to injury. It
would appear they are synonymous as far as the claimant's
use of the word. The claimant made it clear that he did
nothing on December 7, 1990, at least as far as work because
he wasn't working. It is also obvious from the testimony
and evidence in this case that claimant was going to be laid
off or in the process of being laid off because there was no
work in this industry usually this time of year and the
evidence shows he didn't work on December 7, 1990 or after
that time as there was no work to be done.
The undersigned is likewise concerned about the
credibility of this claimant. The undersigned does not
think the claimant really believed he had a cumulative,
otherwise, he would not be so specific as he has in both his
testimony and written evidence and would not have set out in
his answers to interrogatories and his petition indicating a
specific injury on a specific date. This agency's
experience is that if one is contending a cumulative injury,
that word would be used in the petition, at least in item 10
Page 5
of the petition, and usually in items 4 and 10 or in item 4
alone. There is no indication that claimant was contending
cumulative injury. The petition was filed on April 15,
1992, which is almost a year and a half after the alleged
injury and this hearing is over two and one-half years from
the date of the petition and this appears to be the first
time there is a contention of a cumulative injury versus a
specific injury and there has been no attempt by claimant to
change the written evidence or documents. In addition
thereto, claimant states specifically what he was doing on
December 7, 1990 to bring about his specific injury and yet
he now swears under oath contrary to his previous testimony
under oath that he was not even working that day nor was
that the day he was injured. He contends his employer
picked the date for him. The undersigned finds that the
evidence does not support that, but even assuming the
employer suggested that date and the claimant acknowledges
he wrote that date on the first report, he has had legal
representation for a number of years and has not changed his
petition, amended it or supplemented any of the
interrogatory answers.
Claimant then was referred to page 56, line 7, of his
deposition taken November 25, 1992, joint exhibit K(1), in
which he indicated he had no other injury to his body except
a burned hand by a cutting torch. He then was referred to
interrogatory 11 of joint exhibit D in which he did not
refer to any motorcycle accident in 1984. In fact, there
has never been a mention of the motorcycle accident in 1984
in the deposition. He indicated December 10, 1990 was the
last day there would have been any work and he was told to
seek unemployment. Claimant contends that on December 7,
1990 his back was so bad he couldn't work. As will be
addressed later on, there is a question as to whether
claimant actually went up to Cedar Rapids on December 7,
1990 to get a paper signed by Mr. DeHeus. Also, there is
evidence that claimant did other work for people in
constructing houses or doing certain projects on his time
away from the job with RDR Contracting.
Claimant did not know that his lawyer wrote Dr. Koontz
in October 1993, asking for an opinion. The October 18,
1993 letter of Dr. Koontz, joint exhibit A, page 1, reflects
that after having reviewed claimant's files, there is no
question claimant indicated to him that when he initially
saw him on February 21, 1991, that the point of time in
which claimant developed pain was not at a time he was
working. He also did not indicate to him that lifting at
work caused an aggravation of his pain. The doctor also
noticed that when he saw claimant he did not understand when
taking the information initially or his office taking
information, that this was a workers' compensation matter.
Likewise, at the time of the surgery in February 1991, the
doctor did not know this was a workers' compensation matter.
The doctor also mentioned that there are many
inconsistencies in the history claimant gave and it was
difficult for him to say with any reasonable degree of
certainty exactly what is the causative factor here. He can
only say its a possibility. Claimant said he had a lot of
confidence in Dr. Koontz and believed he knew what he was
Page 6
talking about.
Claimant acknowledged that he made $16,332 with RDR in
1988, which is the only income figure on his tax return. He
acknowledged he did odd jobs for his relatives but he
downplayed that as if he was more or less a supervisor. He
declared nothing on his tax return for any compensation he
may have received from these jobs or any value of anything
that might have been bartered. He then went over his other
income tax returns plus income he makes with his current
employer, Midland Homes.
Claimant then was questioned as to the first report
being filed on March 22, 1991, approximately three months
after his alleged December 7, 1990 injury. Claimant
contends he turned in this to the insurance company or
adjuster the day after he had it signed by Mr. DeHeus.
Claimant was also questioned as to certain time limits or
how they could occur if in fact he turned it in around
December 8, 1990 to December 10, 1990.
One area that claimant was questioned for which he did
not have any logical explanation was that he placed his age
at 29 as of the December 1991 date where, in fact, he was
only 28 and would not have been 29 until January 22, 1991 of
the next year. Claimant again tried to explain how the
December 7, 1990 date got in there. The undersigned finds
that claimant's explanation is totally unacceptable.
Claimant was then cross-examined by the attorney for
Midland Homes and the claimant again emphasized that he was
in no way injured on November 23, 1990. He believed his
only injury was December 7, 1990. The undersigned
substantially questions claimant's credibility on many of
his answers and explanations on issues herein, but believes
he wasn't injured on November 23, 1990.
Sheila Thomas, claimant's wife, testified that
claimant's back flared up when he was working for defendant
employer. She said he had no hobbies outside of his work.
She was living with claimant on December 7, 1990 and she
knows of nothing at home that could have caused claimant to
hurt his back other than his work at defendant employer.
She said he was lifting trusses and bending over over a long
period of time and that his back was getting worse. She
said claimant worked on December 7, 1990, and after that
date his condition got worse and he was in pain a lot. She
said claimant has had a change of attitude since December 7,
1990, and that he was very energetic before. She went over
various things he cannot do now that he could do before.
On cross-examination, she indicated that claimant did
side contracting jobs and that these outside jobs earned him
extra cash. She did not know whether he claimed this on his
income tax or not. The undersigned might note that claimant
downplayed any outside work and seemed to indicate that he
did not get any extra cash. There seems to be a
contradiction in this regard. It is obvious that in
claimant's testimony he did not claim anything on his tax
return.
Page 7
Mrs. Thomas could not remember any other incident
whereby claimant had a dramatic increase in his pain.
She was then referred to joint exhibit D, which is
interrogatory No. 6, in which the claimant indicated the
date of accident was December 7, 1990, and he was working on
a home in West Des Moines, Grant Oaks addition. She
indicated claimant wasn't able to finish the job that day
even though he was working on that particular job on
December 7, 1990. She then gave the impression that he then
didn't quit work but he just wasn't able to go back to work
because of his injury. She then was handed claimant's
deposition (jt. ex. K(1)) and referred to page 6, line 20,
in which her husband had testified that he worked the next
day and worked until December 10, 1990, when they ran out of
work and his boss put him on unemployment. She had no
response to this.
Chester Purkey, who is self-employed doing house
framing, testified that he worked with defendant employer
off and on in the early 1970s until approximately two years
prior to the hearing. He indicated he worked with the
claimant on some occasions. He described the work they did,
the lifting, the nature of the lifting, the weight and size
of objects. He also referred to claimant's exhibit 10,
which is the various photographs of houses and identified
those on which he worked with claimant. He was asked what
he was making now as his own boss or self-employed versus
when he was working for defendant employer. He indicated
one has the capability of making more if he has his own
business. The undersigned might note that Mr. Purkey's
explanation of what in fact he is grossing versus netting,
it would appear he is not doing as well as he was when he
was employed. He also wasn't sure what his overall
situation is. The reason for this question was that
claimant or his wife had indicated that claimant had a goal
of having his own business and own framing crew.
On cross-examination, Mr. Purkey acknowledged that his
business had zero profit for the past year.
Tracy Ingram, who was subpoenaed by the claimant,
testified she works for Des Moines Neurosurgeons as their
business manager. Her testimony in this case is basically
insignificant but the point that claimant was trying to make
was that the bills that were paid were paid by the workers'
compensation carrier and not by private health insurance of
claimant. The law is very clear that the mere fact that one
might pay a bill or might be making benefit payments is not
an admission of liability.
Keith DeHeus testified that he recalls when his
deposition was taken in February 1994 in which the
claimant's attorney went through the original records of the
log books, a copy of which is represented by joint exhibit
I.
Mr. DeHeus said claimant did not work on December 7,
1990, and that the company did not work that day nor the
Page 8
prior week.
He said the claimant brought him the forms that have
been referred to either the last week of February or the
first week of March 1991. He said he was actually working
at a project himself when claimant brought him the form.
Mr. DeHeus said that on December 7, 1990, he was working in
the Pella area.
He recalled claimant bringing him a first report of
injury and claimant said he had back problems and wanted him
to sign the form so he could get it filed. He agrees with
what he signed but has no idea where the December 7, 1990
date came from. He emphasized he did not tell the claimant
to put the December 7, 1990 date on the form nor did he
indirectly suggest he use that date.
He was aware he had workers' compensation insurance in
1990. He said his business was on a fiscal year beginning
December 1 of each year.
Mr. DeHeus was not aware claimant sustained an injury
to his back at any point in time. He indicated everyone off
and on went to get an adjustment. He said claimant never
asked him to pay any medical except possibly a chiropractor
bill.
He said that as to the December 7, 1990 date, this was
related not to an injury but that their work ended and he
told the claimant to file for unemployment.
On cross-examination, Mr. DeHeus then went over how he
kept his books and the nature of his operation. He
emphasized he did not make these records all at the same
time but that they were made either as the events occurred
or he would keep notes in his truck and at the end of a
week, he would correlate them and put them on his official
records. He would originally make an entry on a scratch pad
and then put them on the log, a copy of which is in the
record.
Jackie Buffum, who is a claims adjuster from Allied
Insurance Company, testified. The undersigned sees no need
to set out her testimony as it is not significant in light
of the decision herein.
Bob Seely testified. He is vice president of defendant
Midland Homes. He testified as to claimant's position with
his company. He testified as to claimant's job performance
and his opportunity for promotion and substantial salary
increases and his ability to receive bonuses.
Mr. Seely is familiar with claimant's personnel records
and they have no record of a work injury or any claim of
work injury that claimant made with Midland Homes.
On cross-examination, he indicated that they are very
satisfied with claimant but that he has limitations but
because of the nature of his work with them, it does not
call for any job limitations.
Page 9
On further cross-examination, he indicated claimant's
salary could go in the $40,000 range after he is there for
awhile.
The undersigned does not feel it necessary to go into
anymore detail or set out any more medical information or
other parts of exhibits that are in evidence.
The undersigned finds that there is a big issue of
credibility regarding this claimant. It is clear from the
records in looking at claimant's answers to interrogatories
and his deposition and his petition that he alleges he
incurred an injury on December 7, 1990, while working on a
house in West Des Moines. Claimant's petition filed April
1992 specifically refers to him lifting a wall when he hurt
his back. This agency's experience is that if one is
alleging a cumulative injury, it is usually noted somewhere
in the petition that one is relying on a cumulative injury.
Claimant has had over two years to amend his petition and
has had substantial time to attempt to correct his various
testimonies under oath or to clarify the same.
Joint exhibit D reflects claimant's answer to
interrogatory No. 6 in which he specifically refers to the
date of his accident as December 7, 1990, and describes what
he was doing. In claimant's deposition taken November 25,
1992, joint exhibit K(1), on page 43, claimant again
indicated he had no doubt whatsoever as to the time he was
injured and that his injury involved a specific incident at
work.
Claimant attempted to muddy the water by indicating
someone else, namely, a Mr. DeHeus, either wrote in or told
him to put December 7, 1990 on the first report. There is
also suspicion as to when that report was made out since it
wasn't filed until March 1991.
Claimant stated several times that in fact he wasn't
even working on December 7, 1990. The undersigned also
believes Mr. DeHeus when he said that on December 7, 1990,
he was not working in Cedar Rapids but was working in Pella,
so that claimant could not have come to see him in Cedar
Rapids on December 7, 1990. At the hearing, claimant now
indicates that sometime in September or October was when he
apparently injured or felt he was becoming injured and that
the lifting of the walls on December 7, 1990 was a
combination of what he now claims as a cumulative injury.
Again, claimant was emphatic that he was not working on
December 7, 1990. Also, it appears that at that time or
just around that time the company no longer had work and he
was laid off which is normal for that time of the year. It
appears that at least as of December 10, 1990, there was a
complete layoff. Mr. DeHeus, the owner of defendant
employer, indicated not only wasn't there work on December
7, 1990, but the prior week there was no work. There would
appear to be no coincidence that claimant picked that
particular date of December 7, 1990 under the circumstances.
Claimant indicated that he had no other injury but did
Page 10
acknowledge that he did other work for other relatives or
friends without pay or at least on a barter system. In
other words, he would do something for someone who
apparently would do something for him. This seems contrary
to his wife's testimony who indicated that claimant had some
outside jobs and received cash for them. The wife didn't
know if he included it on his income tax return but it is
obvious he didn't and claimant contends he received no cash.
The undersigned could go into further detail but finds
it unnecessary in light of the strong evidence in this case
and taking into consideration the demeanor of this claimant
and his lack of credibility. The undersigned therefore
finds that claimant has not carried his burden to prove that
he incurred an injury on December 7, 1990, nor that he
incurred a cumulative injury on December 7, 1990, and
therefore takes nothing from these proceedings.
As to file No. 1039815, which is an action actually
initiated by the defendants who brought in a third party,
Midland Homes, the undersigned is surprised that this action
was not objected to by the claimant or by the third party
brought in.
Under the rules of this agency and the law, the
defendants are unable to bring in a third party under these
circumstances. It is only the claimant that can file an
action alleging an injury. There was no objection so this
matter was before the undersigned. How the date of November
23, 1992 was chosen is also a mystery, particularly, in
light of the fact that claimant absolutely denied any injury
and the defendant Midland Homes had no knowledge of any
claim of an injury. It would appear that defendants were
trying to divert attention from litigation against
themselves. There were no sanctions requested under rule 80
or under Iowa Code section 616.19, therefore, that will not
be addressed by the undersigned but it would appear this
could very well be a situation in which those rules or law
could be triggered as an investigation would surely have
prevented this suit from being filed, particularly, since
this is contrary to the law. It is unfortunate the
defendant Midland Homes had to defend this matter and incur
legal expenses. The undersigned therefore dismisses with
prejudice the action in file No. 1039815.
CONCLUSIONS OF LAW
As to file No. 978914:
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
Page 11
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
It is further concluded that claimant did not incur a
specific injury nor a cumulative injury on December 7, 1990.
Claimant's credibility is substantially questioned as
to his testimony concerning his alleged injury.
As to file No. 1039815:
Claimant was not contending he incurred an injury on
November 23, 1992.
ORDER
THEREFORE, it is ordered:
As to file No. 978914:
Claimant takes nothing from these proceedings.
Costs are assessed against the claimant.
As to file No. 1039815:
The petition is dismissed with prejudice and the costs
are assessed against defendants RDR Contracting Corporation
and Allied Group Insurance.
Signed and filed this ____ day of July, 1994.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Page 12
Copies To:
Mr Stephen D Lombardi
Attorney at Law
10101 University Ave Ste 202
Clive IA 50325
Mr D Brian Scieszinski
Attorney at Law
801 Grand Ave Ste 3700
Des Moines IA 50309
Mr Thomas Henderson
Attorney at Law
317 6th Ave Ste 1200
Des Moines IA 50309
1100; 1108; 1402
Filed July 21, 1994
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
TIMOTHY THOMAS, :
:
Claimant, :
: File Nos. 978914
vs. : 1039815
:
RDR CONTRACTING CORP. and : A R B I T R A T I O N
KEITH L. DE HEUS, :
: D E C I S I O N
Employer, :
:
and :
:
ALLIED GROUP INS. CO., :
:
Insurance Carrier, :
:
and :
:
MIDLAND HOMES :
:
and :
:
HAWKEYE SECURITY, :
:
Insurance Carrier, :
Defendants. :
:
------------------------------------------------------------
1100; 1108; 1402
Found claimant was not credible and that he did not incur an
injury on December 7, 1990, as he alleged in his petition,
answers to interrogatories and deposition, but apparently
contends at hearing it was sometime in September or October
1990 and was now a cumulative injury. Claimant took
nothing.
There were many examples of claimant's inconsistency.
1100; 1108
Defendant insurance company brought in a third party,
employer and insurance company, alleging claimant was
injured on another date (November 23, 1992), which if proven
would exonerate the original employer and insurance company
that claimant originally sued. No one objected to this
improper action as only the claimant can bring an action for
an injury. Claimant adamantly denied he was injured on
November 23, 1992. The third party action was dismissed
with prejudice.