BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
MARILYN BERGERT, :
:
Claimant, :
: File Nos. 903793
vs. : 979289
:
WILSON FOODS, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant. :
:
___________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on July 21, 1992, at
Storm Lake, Iowa. This is a proceeding in arbitration
wherein claimant seeks compensation for permanent partial
disability benefits as a result alleged injuries occurring
on December 13, 1988 and January 7, 1991. The record in the
proceedings consist of the testimony of the claimant, and
Pat Luse, D.C.; and, joint exhibits 1 through 30.
The parties agreed to the claimant amending her
petition to insert in file number 979289 the injury date of
January 7, 1991 in lieu of December 15, 1990.
FINDINGS OF FACT
Claimant is a 48-year-old high school graduate who
testified that she had no medical problems including her
hands, arms and shoulders prior to beginning work for Wilson
Foods in August 1979.
Claimant described in detail the various jobs she held
at Wilson Foods since 1979. These jobs included but were
not necessarily limited to pace boning, the weiner room, the
package department, sausage, belly department, cut floor,
the kill floor, stylexing, palletizing, tenderloin
department, wrapping and boxing department. Claimant
indicated that in these jobs she always stood and that these
were fast moving production line type jobs. Claimant
indicated that if a particular job set out for eight hours
could be done in six hours then they would be able to go
home two hours early. Claimant indicated the amount of
products she must handle at a particular job per hour and
the weights that were involved in certain jobs. The weights
varied up to 65 pounds.
Claimant indicated that for four or five years she was
on the 800 list or gang which meant that she would be sent
all over the plant and did not own a particular job. She
would go where the company needed the work done.
Claimant indicated that because of her small hands and
Page 2
features it was harder for her to do the work and hold
certain products that was required in her job. The
undersigned did notice that claimant does have small hands
and features.
Claimant indicated her first symptoms appeared in the
early 1980's and involved her left elbow and that in the
last five years from 1987 to 1992, her elbow developed more
pain through her work. She said it was better after her
surgery but then became worse again. Claimant emphasized
there was no single trauma that caused her problems.
Claimant's attention was called to joint exhibit 1 in
which Thomas P. Ferlic, M.D., indicated claimant was having
a problem with her left elbow and right elbow on July 5,
1989. She was also referred to joint exhibit 24 in which
Mark Wheeler, M.D., noted on February 2, 1989, claimant's
left elbow and wrist problem.
Claimant contends that currently her elbows pop at
times, her arms swell and she cannot do certain things
because of her arms and wrists. She indicated she cannot
talk on the phone with her hands up, cannot play tennis, and
loses concentration at work. She said she has crepitation
of the left elbow. Claimant said that her hands began
sleeping and she couldn't grip things. She first noticed
this in 1990 and her condition got so bad in both of her
hands that she had left wrist surgery in January 1991.
Claimant said around this time she was working in the
stylexing department which required using a hook to grab and
reach for a ham with the left hand and then use the right
hand with a electric knife to cut the ham and roll it over,
etc. She indicated the hams weigh from 30 to 65 pounds.
Claimant then had right wrist surgery in February 1991.
She indicated that in May of 1991 when Dr. Ferlic
issued a disability rating, he did not perform any tests nor
any sensory testing. He gave her a 5 percent permanent
partial impairment rating on each hand.
Claimant said she then returned to work in May of 1991
at the stylexing job. She stated her hands again started to
swell and would fall asleep at night and she would drop
things unexpectedly. Claimant indicated she does not feel
her wrists are any better now after the surgery and that
they hurt in her palm area and on the top side of the wrist.
She said if she squeezes her hands it feel like electricity
going through them.
Claimant testified when she was young she played a lot
of tennis but quit after knee surgery in 1976 or 1977.
Claimant did say that she played a little tennis after her
knee injury but hasn't played since her wrist surgery.
Claimant acknowledged she has not seen Dr. Ferlic or
any other orthopedic surgeon since May of 1991 and the only
doctor she has seen for her problems involving her wrists or
hands was to be evaluated by Dr. Luse in February of 1992.
Claimant testified she has not missed many days due to
Page 3
her alleged injuries and emphasized that the reason she is
still working at Wilson is that she has bills to play,
children in college and there is nothing else she can do.
Pat Luse, D.C., testified in person. He went into
detail as to the nature of his evaluation of claimant, the
instruments he used. In fact, he brought into the court
room some of the particular measuring instruments he used.
Dr. Luse did an evaluation around August 2, 1990, and
opined at that time an impairment to claimant's right wrist
of 13 percent and left wrist of 9 percent. These were prior
to claimant's surgeries.
On February 18, 1992, the doctor said he again
evaluated claimant's left elbow and both wrists and
explained the tests and the guides he used in arriving at
his 15 percent permanent impairment to her left and right
upper extremity. The doctor indicated that claimant's
problems were the result of repetitive nature of her work at
Wilson Foods and that her problems were not caused by a
single trauma. The doctor acknowledged that his impairment
ratings were higher in 1992 after claimant had her surgery
than before. He also indicated that the newer guides gave a
greater rating than the older guides he used in 1990. Dr.
Luse acknowledged there was an increase in claimant's grip
strength after surgery even though his impairment rating was
higher after the surgery. Dr. Luse said that his first
rating in 1990 was lower than it should be so he is not
necessarily concluding that claimant's impairment increased
after surgery even though the actual ratings he gave are
higher after claimant's surgery.
Dr. Luse also agreed that precise mathematics is not
the sole determining factor in using the guides but that
some judgment is involved. He also did not believe Dr.
Ferlic used the guides or mathematical calculations when he
arrived at his 5 percent impairment rating.
Joint exhibit 16, page 4, indicates that the first note
concerning pain on claimant's right upper extremity was
November 23, 1988, which involved the right hand and finger.
Shortly thereafter, claimant was complaining of a numb Left
hand and the pain in her elbow in December of 1988, and on
January 18, 1989, the doctor's notes indicate pain left
elbow, has carpal tunnel. In June of 1989, she was
complaining as to both elbows (Joint Exhibit 16, page 5).
The notes reflect claimant's January and February 1991
surgery to the left and right hand respectively.
It does not appear that claimant lost any time from
work in 1988 and 1989 or 1990. In looking at various
exhibits in which claimant went in for an appointment when
she was complaining of pain and a particular upper
extremity, it appears on the date of the appointment the
doctor returned her to work that day or the next day (Jt.
Exs. 1, 2 and 3). In fact, on joint exhibit 3, on December
5, 1990, the doctor returned claimant to regular duty until
her surgery that was to be scheduled in January of 1991. In
none of those exhibits are there are any restrictions or
Page 4
work limitations set out. Joint exhibit 4 is the operative
report showing claimant's January 7, 1991 carpal tunnel
syndrome surgery on the left. Also, a lateral antebranchium
cutaneous nerve entrapment at the elbow (Jt. Ex. 4). Joint
exhibit 6 is claimant's operative report showing claimant's
February 12, 1991 carpal tunnel syndrome surgery on the
right. These were both performed by Ferlic. There is no
dispute in this case as to healing period. On May 7, 1991,
Dr. Ferlic indicated in joint exhibit 13 that claimant could
return to work. It is obvious the parties agreed the
healing period must have ended on May 20, 1991, as they
agreed that any benefits that would be awarded would begin
May 21, 1991.
On July 5, 1991, claimant was complaining about
tenderness over both elbows but Dr. Ferlic could not
determine the etiology of her discomfort. He advised her to
return in one week and claimant did on July 13, 1991, at
which time it doesn't seem the doctor could determine
anything further but offered claimant corticosteroid
injections but claimant did not want one. He indicated
claimant could return to work. Joint exhibit 14, page 5,
reflects a May 7, 1991 note of Dr. Ferlic in which he
indicated claimant returned today and was doing essentially
well. She was having a little more problem with her left
than her right but she told them that she was very satisfied
with the left elbow release and she felt like it had
benefited her quite well. He concluded that he would rate
the patient for disability. The undersigned believes the
doctor meant impairment.
Joint exhibit 15 is a May 8, 1991 letter from Dr.
Ferlic in which he wrote Keith O. Garner, M.D., that he
opined claimant had reached maximum medical healing and that
the patient has a 5 percent disability of each hand
separately on the basis of her carpal tunnel release. He
indicated he did not rate her for her left lateral
antibronchial cutaneous nerve release as he did not believe
that would become a functional or clinical problem. Joint
exhibit 24 reflects a report by Dr. Wheeler in which
claimant visited with him on February 2, 1989. At that
time, his examination showed that claimant had marked
tenderness over the medial epicondyle, slightly over the
ulnar nerve also. He indicated that he related claimant's
medial epicondylitis to her work but that she felt better
when she was off work for a week's vacation. He indicated
her work aggravates her condition. He indicated she could
return to work after being off for two weeks and return to
him if necessary. At the time of her visit she was
complaining of her left elbow and hand problems.
Joint exhibit 25 is an orthopedic evaluation by Joshua
Kimelman, D.O., dated January 24, 1990, at which time
pursuant to his examination he had the impression that
claimant had chronic epicondylitis bilaterally by history.
It seems that he was more impressed or put more attention on
claimant's right knee and agreed with Dr. Wheeler that she
had a 10 percent permanency to that right knee. As regards
claimant's other diffuse musculoskeletal complaints, he at
that time saw no evidence of permanency or dysfunction and
Page 5
he had no further recommendation for diagnostic tests or
treatment.
Joint exhibit 28 is Dr. Luse's August 2, 1990
evaluation in which he opined a total impairment to
claimant's left wrist of 9 percent, right wrist 13 percent,
right elbow 5 percent, and right knee 10 percent. In that
report, the doctor referred to October 15, 1981 and April
27, 1987 injuries in which claimant alleged she injured her
knee by slipping on the grading in 1981 and incurred
repetitive motion trauma to both arms in 1987. In Dr.
Luse's report of February 18, 1992, he opined in summary on
page 6 of joint exhibit 26 that claimant had a total
impairment of her right upper extremity of 15 percent and a
total impairment of her left upper extremity of a net 15
percent.
In the doctor's oral testimony at the hearing he
acknowledged when he opined a 13 and 9 percent impairment to
claimant's right and left wrist respectively in August 1990.
When he later issued his impairments in 1992, he indicated
that he was not only updating them and using a more updated
impairment guide but that he was conservative in his prior
rating. In his 1992 report, he refers to the upper
extremities. It is also obvious that he was addressing
claimant's left elbow problem in which he indicated that
claimant had popping of the left elbow with movement. He
also in his 1992 report refers to claimant's right medium
nerve and left medium nerve due to entrapment neuropathy and
crepitation of the left elbow. The undersigned believes
that Dr. Luse is taking the total upper extremity impairment
which includes the wrist and the elbow in arriving at his
impairments and that is why he is referring to the upper
extremity and not the wrist.
There seems to be confusion taking Dr. Luse's February
18, 1992 report as a whole. He does not address anything as
to claimant having a right elbow problem and yet he uses the
right upper extremity terminology notwithstanding the fact
that it looks like he sees only a right wrist problem.
Claimant contends that she incurred an injury to her
left hand and elbow on December 13, 1988. There is
insufficient evidence in the record to indicate that the
claimant did in fact incur a compensable injury on December
13, 1988. It appears from the record that claimant was
having some problems and that an ultimate cumulative injury
was in its earlier stages but had not come into fruition
under the law. The undersigned therefore finds that
claimant has failed in her burden of proof to prove that she
incurred a cumulative injury on December 13, 1988, that
arose out of and in the course of her employment and further
failed to prove that there is any causal connection between
that alleged injury and the impairments or disability from
which claimant alleges she currently has.
As to claimant's January 7, 1991 injury which she
originally pled as a December 15, 1990 injury, the
undersigned finds that the greater weight of medical
Page 6
testimony and evidence shows that claimant did incur a
cumulative injury to her right hand and left hand
simultaneously. It appears that claimant first missed work
on January 7, 1991, which is the date she had her carpal
tunnel syndrome surgery on her left and also a lateral
antibroncium cutaneous nerve entrapment at the elbow (Jt.
Ex. 4). Then, on February 12, 1991, she had her second
surgery which involved a carpal tunnel syndrome surgery on
her right. The evidence is clear that claimant was
developing this condition cumulatively over a period of
time. Claimant's leaving work for her surgery established
the injury date for this simultaneous bilateral carpal
tunnel. It is not unusual that a person in such a situation
will have surgeries several months apart so that one will
not be completely incapacitated. It is a judgment call as
to whether it best to have both of them at the same time or
sometime apart. These two surgeries were approximately five
weeks apart. Claimant worked in a meat packing industry,
which industry is known for the repetitive type of work.
The evidence is clear that claimant's job with defendant
involved continuous repetitive work in which a requirement
to keep up with others and reach certain quotas was evident.
Claimant also complained of elbow injuries. The evidence
shows that claimant did incur a cumulative injury in her
left elbow area and that she had surgery as to her nerve
entrapment at the left elbow.
Dr. Ferlic, who performed the surgery, opined a 5
percent permanent impairment to claimant's hands as a result
of carpal tunnel surgeries but indicated that he did not
think there would be any functional impairment as to her
elbow injury when he issued a report on May 8, 1991 (Jt. Ex.
15). It appears that as time went by and claimant was
returned to work Dr. Ferlic's conclusion as to the elbow did
not come true. The undersigned believes that claimant did
incur an impairment to her left elbow area which has not
been addressed later by Dr. Ferlic.
Dr. Luse did address claimant's left elbow impairment
as well as addressing claimant's left and right carpal
tunnel problems.
The undersigned believes that Dr. Ferlic, the
orthopedic surgeon who performed surgery on claimant is best
able to opine claimant's impairment due to the fact that he
was not only a surgeon but treated claimant. Dr. Luse
strictly saw claimant as an evaluator and he is also a
chiropractor and is not able to perform surgery and it would
be outside of his expertise. The undersigned does believe
that since Dr. Luse did address claimant's elbow area, there
is some impairment because of claimant's left elbow problem.
The record shows that Dr. Ferlic did not or possibly was not
given an opportunity to do any further updating concerning
claimant's left elbow after his May 1990 report. Likewise,
the undersigned does not believe that Dr. Luse's 15 percent
impairment of the left and right extremity is accurate,
particularly since they are identical impairments and yet it
Page 7
is obvious from Dr. Luse's report that there is more wrong
with the claimant's left upper extremity than the right due
to the epicondylitis condition of the left elbow.
The undersigned finds that claimant did incur a carpal
tunnel syndrome condition on the left and right and
epicondylitis on claimant's left elbow which arose out of
and in the course of her employment on January 7, 1991, and
that this work injury caused claimant to have her carpal
tunnel surgery on the left and nerve entrapment surgery at
the left elbow on January 7, 1991, and the right carpal
tunnel surgery on February 12, 1991, and that this work
injury and surgery caused claimant to incur a 5 percent
impairment to her right wrist and an impairment to her left
hand and left elbow area resulting in a total impairment to
claimant's left arm (upper extremity) of 10 percent.
The undersigned finds that claimant's injuries are a
simultaneous bilateral injury occurring on January 7, 1990,
and that said injuries shall be compensation under
85.34(2)(s), and that any weekly payments shall begin May
21, 1991.
Taking 5 percent permanent impairment to claimant's
right hand equals 5 percent to her upper extremity which
converts to 3 percent of the body as a whole. Claimant's 10
percent permanent partial impairment to her upper extremity
converts to 6 percent body as a whole. Converting the 6
percent and 3 percent under the provisions of 85.34(2)(s)
and the charts of the AMA Guides to the Evaluation of
Permanent Impairment, (3rd ed.) results in claimant having a
9 percent body as a whole injury as a result of her
cumulative January 7, 1991 work injury. Nine times 500
weeks equals 45 weeks. Claimant is entitled to 45 weeks of
benefits payable at the rate of $259.55.
CONCLUSIONS OF LAW
Claimant has the burden of proving by a preponderance
of the evidence that she received injuries on December 13,
1988 and January 7, 1991, which arose out of and in the
course of her employment. McDowell v. Town of Clarksville,
241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone
Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
The claimant has the burden of proving by a
preponderance of the evidence that the injuries of December
13, 1988 and January 7, 1991, is causally related to the
disability on which she now bases her claim. Bodish v.
Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl
v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A
possibility is insufficient; a probability is necessary.
Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691,
73 N.W.2d 732 (1955). The question of causal connection is
essentially within the domain of expert testimony. Bradshaw
v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167
(1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
Page 8
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman v. Central Telephone
Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
It is not necessary that claimant prove her disability
results from a sudden unexpected traumatic event. It is
sufficient to show that a disability developed gradually or
progressively from work activity over a period of time.
McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa
1985). The McKeever court also held that the date of injury
in a gradual injury case is the time when pain prevents the
employee from continuing to work. In McKeever the injury
date coincides with the time claimant was finally compelled
to give up his job. This date was then utilized in
determining rate and the timeliness of the claimant's claim
under Iowa Code section 85.26 and notice under Iowa Code
section 85.23.
Iowa Code section 85.34(2)(2) provides, in part: "The
loss of both arms, or both hands, or both feet, or both
legs, or both eyes, or any two thereof, caused by a single
accident, shall equal five hundred weeks and shall be
compensated as such."
Workers' compensation benefits for permanent partial
disability of two members caused by a single accident is a
scheduled benefit under Iowa Code section 85.34(2)(s) and
that the degree of impairment caused by a partial loss must
be computed on the basis of functional, rather than
industrial disability. Simbro v. DeLong's Sportswear, 332
N.W.2d 886 (1983).
Page 9
As to claimant's alleged December 13, 1988 injury, it is
concluded that:
Claimant has failed to prove that she incurred an
injury that arose out of and in the course of her employment
and that such work injury caused claimant any permanent
partial impairment or disability.
As to claimant's January 7, 1991 injury, it is further
concluded that:
Claimant incurred a cumulative simultaneous bilateral
carpal tunnel injury and an injury to her left elbow that
arose out of and in the course of claimant's employment on
January 7, 1991 and that said injury caused claimant to
incur surgery on January 7, 1991 and February 12, 1991, and
that these surgeries and claimant's injury resulted in
claimant incurring an impairment to her left upper extremity
which included an impairment to her left hand, left elbow
and her right hand.
Claimant incurred a 9 percent body as a whole injury
under the provisions of 85.34(2)(s) entitling her to 45
weeks of benefits at the rate of $259.55.
ORDER
THEREFORE, it is ordered:
As to claimant's December 13, 1988 alleged injury, file
number 903793, claimant takes nothing from that proceeding.
As to claimant's January 7, 1991 cumulative injury
represented by file number 979289, it ordered that:
Defendant shall pay unto claimant forty-five (45) weeks
of permanent partial disability benefits at the rate of two
hundred fifty-nine and 55/100 dollars ($259.55), beginning
May 21, 1991.
Defendant shall pay the accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid. The parties stipulated
that claimant has been paid thirty (30) weeks of permanent
partial disability benefits and all her healing period
benefits at the rate of two hundred fifty-four and 02/100
dollars ($254.02).
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendants shall file a first report of injury for
the January 7, 1991 injury (file number 979289).
That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Page 10
Signed and filed this ____ day of August, 1992.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Harry H Smith
Mr Dennis McElwain
Attorneys at Law
632-640 Badgerow Bldg
P O Box 1194
Sioux City IA 51102
Mr David L Sayre
Attorney at Law
223 Pine St
P O Box 535
Cherokee IA 51012
5-1100; 5-1108; 5-1808
Filed August 20, 1992
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
MARILYN BERGERT, :
:
Claimant, :
: File Nos. 903793
vs. : 979289
:
WILSON FOODS, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant. :
:
___________________________________________________________
5-1100; 5-1108; 5-1808
Found claimant incurred a simultaneous cumulative bilateral
injury on January 7, 1991, that arose out of and in the
course of claimant's employment and caused claimant to incur
two surgeries on January 7, 1991 and February 12, 1991,
respectively, all of which resulted in claimant being
impaired and entitled to 45 weeks of permanent partial
disability benefits under 85.34(2)(s). File No. 979289.
Found no December 13, 1988 injury that arose out of and in
the course of claimant's employment and no causal
connection. Claimant took nothing from the case. File No.
903793.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
ROBERT J. WOLFE, :
:
Claimant, : File No. 979295
:
vs. : A R B I T R A T I O N
:
ORAL B LABORATORIES, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
statement of the case
Claimant, Robert Wolfe, seeks benefits under the Iowa
Workers' Compensation Act upon his petition in arbitration
against defendant self-insured employer Oral B Laboratories
based upon allegations of a work injury to the upper
extremities on March 1, 1991.
This cause came on for hearing in Cedar Rapids, Iowa on
January 4, 1993. Testimony was received from claimant,
Marty Holbrook, Al Morris and Marcy Kuhl. Exhibits received
into evidence include joint exhibits 1-7, defendant's
exhibits A and C-K, and claimant's exhibits 1-8 and 12-18.
Defendant lodged objections to claimant's 9, 10 and 11.
Ruling was reserved. Those objections are overruled as to
exhibits 9 and 11, each of which are hereby received into
evidence. Defendant's objection to exhibit 10 is sustained.
On December 30, 1992, claimant filed an application for
extension of time in which to submit evidence. The
application was considered and overruled at hearing.
issues
The parties have stipulated to the existence of an
employment relationship on March 1, 1991, to the rate of
compensation ($383.45 per week) and that defendant is not
entitled to credit for benefits voluntarily made prior to
hearing. Claimant waived his allegation of occupational
disease under Iowa Code chapter 85A.
Issues presented for resolution include:
1. Whether claimant sustained injury arising out of
and in the course of his employment on March 1, 1991;
2. Whether the injury caused either temporary or
permanent disability;
3. The extent of temporary total disability or healing
period;
4. The extent and commencement date of permanent
Page 2
partial disability (it being stipulated that if a work
injury caused permanent disability, it is a scheduled member
disability to the upper extremities);
5. Entitlement to medical benefits; and,
6. Entitlement to penalty benefits under Iowa Code
section 86.13.
With regard to medical benefits, defendant stipulated
that the fees charged for medical services and supplies are
fair and reasonable and incurred for reasonable and
necessary treatment. Causal connection to a work injury was
disputed, as was authorization of those expenses by
defendant. The authorization defense was ruled invalid at
hearing, as defendant waived the right to control the course
of medical treatment by denying liability on the claim.
findings of fact
The undersigned deputy industrial commissioner finds:
Robert "Jack" Wolfe has been employed by Oral B
Laboratories since 1977. Defendant manufactures
toothbrushes. Claimant has held a number of jobs, but was
employed as a mold technician for approximately nine years
prior to the claimed work injury.
The job of mold technician involves setting up,
adjusting, and overseeing the operation of a number of
machines which manufacture plastic toothbrush handles. From
time to time, new molds must be placed in the machines,
which involves loosening and tightening nuts with wrenches,
flipping switches, and removing and replacing water lines.
The latter responsibility at one time required removing and
replacing numerous clamps, but now the machines are equipped
with "quick-connect" water lines. The position also
required a certain amount of lifting.
For approximately four years prior to March 1, 1991,
claimant had bilateral symptoms of pain in the arms and
numbness in his fingers. On March 1, his symptoms worsened
and he was unable to flex the terminal digits of both his
right thumb and index finger.
Claimant was first seen on March 11 by the company
doctor, Dr. Sun. His associate, Erich Streib, M.D.,
diagnosed right median nerve palsy and right elbow pain and
swelling which was "most likely" due to injury or sickness
arising out of employment. Claimant testified that he gave
Dr. Streib a detailed history, including a description of
his job responsibilities.
Dr. Streib referred claimant to Walter J. Hales, M.D.,
who performed right sided surgery on March 26, 1991. Pre-
and post operative diagnoses were of proximal compression
neuropathy of the median nerve (pronator syndrome),
compression somewhere above the innervation of the pronator
teres muscle of the median nerve. The procedure was
described as a release of the median nerve from the proximal
Page 3
arm to the distal forearm.
Based on claimant's verbal history, Dr. Hales rendered
a "strong opinion" on June 20, 1991 that claimant's problem
was work related. Dr. Hales had made arrangements to
actually examine the work place, but then decided to leave
Iowa in favor of practice in the state of Oregon and was
unable to attend. He did not feel it was necessary to do so
based on the history given him by claimant.
Claimant's care was given over to William W. Eversmann,
Jr., M.D., of the same office. Dr. Eversmann continued
treatment and eventually conducted an on-site view of the
mold technician job on August 3, 1992 at the Oral B plant in
Iowa City. Dr. Eversmann's chart notes of August 12
described the duties in some detail and concluded:
In some [sic] total then, based on the information
that I was provided on August 3, 1992, I cannot in
fact identify any pronation risk which would
contribute to a pronator syndrome such as was
handled in the case of Robert J. Wolfe. I further
have reviewed the clinic note of March 25, 1991 of
Dr. Hales. Dr. Hales indicates that he worked as
a mechanic. He noted that there was a lot of
pulling and tugging on wrenches and other tools in
his repair work on the machines. I saw little
evidence of this activity. Based on the
information supplied by Dr. Hales I would suggest
that I cannot confirm his findings of a work
related injury. Having viewed the exact job
rather than the patient's description of it as Dr.
Hales had made a decision with, I cannot confirm
the origin as being work related based on my
viewing in the work place.
(Joint Exhibit 1, Pages 11-12).
Dr. Eversmann's chart notes of October 6, 1992,
specifically stated that: "I do not feel that he has a
work-related injury, certainly not one that provided him wit
[sic] a pronator syndrome for which he has been treated."
Claimant, however, insists that although Dr. Eversmann
accurately described the mold technician job as it existed
in 1992, the job had been substantially changed through
plant modernization since the injury date asserted in 1991.
He is supported in this allegation by fellow employee Marty
Holbrook. However, Al Morris, first shift supervisor and
molding process engineer (supervisor of mold technicians)
testified that modernization occurred earlier, and that the
job viewed by Dr. Eversmann was "exactly the same" as in
March 1991, and, for that matter, in March 1990, 1989 or
even 1988. Mr. Morris pointed out that the machines which
required loosening and tightening nuts to replace molding
dies were replaced in 1986 (this being one of the major
pronation/supination duties described by claimant). Given
his familiarity with the job, access to plant records, lack
of interest in this litigation and general demeanor, the
testimony of Al Morris is found more persuasive than that of
Page 4
claimant and Marty Holbrook with respect to the timing of
plant modernization.
For that reason, the opinion of Dr. Eversmann is found
more persuasive than those of Dr. Hales and Dr. Streib with
respect to causation, since Dr. Eversmann actually saw
claimant's job as it is performed, while Dr. Hales and Dr.
Streib based opinions on claimant's verbal description.
The opinion of Dr. Ware as to causation is found
irrelevant, since he was treating claimant for an unrelated
allergic problem. His opinion as to causation related to
that problem, rather than the median nerve symptoms under
consideration here.
conclusions of law
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).
This requirement is satisfied by showing a causal
relationship between the employment and the injury. Sheerin
v. Holin Co., 380 N.W.2d 415 (Iowa 1986).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
Dr. Streib and Dr. Hales have opined that a causal
nexus exists between the employment and claimant's
disability. Dr. Hales was a treating physician. Both
opinions are based on claimant's verbal description of his
job.
Dr. Eversmann also is a treating physician, although he
did not perform surgery. He took over care from Dr. Hales
when the latter physician moved out of state. Unlike Drs.
Streib and Hales, Dr. Eversmann had an opportunity to view
claimant's actual job in detail. His opinion that the job
did not cause claimant's disability is more persuasive than
the opinions of Drs. Hales and Streib.
Accordingly, it must be concluded that claimant has
Page 5
failed to meet his burden of proof in establishing that he
sustained an injury arising out of and in the course of
employment. Other issues are thereby rendered moot.
order
THEREFORE, IT IS ORDERED:
Claimant shall take nothing from this proceeding.
Costs are assessed to defendant pursuant to rule 343
IAC 4.33.
Signed and filed this ____ day of January, 1993.
________________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Matthew J Petrzelka
Attorney at Law
115 3rd Street SE
Suite 1200
Cedar Rapids Iowa 52401
Mr John M Bickel
Attorney at Law
500 Firstar Bank Building
PO Box 2107
Cedar Rapids Iowa 52406
1108.50
Filed January 19, 1993
DAVID R. RASEY
before the iowa industrial commissioner
____________________________________________________________
:
ROBERT J. WOLFE, :
:
Claimant, : File No. 979295
:
vs. : A R B I T R A T I O N
:
ORAL B LABORATORIES, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
1108.50
Claimant underwent a median nerve release after he developed
upper extremity symptoms which he alleged were caused by
pronation/supination activities at work. Based upon
claimant's description of his job, the treating surgeon
found that a causal nexus existed. When the treating
surgeon moved out of state, the physician who continued
claimant's care actually visited the plant and viewed
claimant's exact job. Based on this view, that physician
concluded that the job did not cause the median nerve
symptoms. The second opinion was found move persuasive.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
HELEN H. DAVIS,
Claimant,
vs.
File No. 979357
ROSE HAVEN NURSING HOME,
A P P E A L
Employer,
D E C I S I O N
and
ALLIED MUTUAL INSURANCE 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. The decision of the deputy
filed March 11, 1993 is affirmed and is adopted as the final
agency action in this case.
Defendants shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of July, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Thomas J. Currie
Attorney at Law
3401 Williams Blvd SW
P O Box 998
Cedar Rapids, Iowa 52406-0998
Mr. David L. Jenkins
Attorney at Law
801 Grand Avenue
Suite 3700
Des Moines, Iowa 50309-2727
2206; 1108; 1803; 3700
Filed July 26, 1993
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
HELEN H. DAVIS,
Claimant,
vs.
File No. 979357
ROSE HAVEN NURSING HOME,
A P P E A L
Employer,
D E C I S I O N
and
ALLIED MUTUAL INSURANCE CO.,
Insurance Carrier,
Defendants.
____________________________________________________________
2206; 1108
Minor work incidents were held to have "lighted up" or
aggravated a calcified, necrotic intradural tumor, later
surgically removed.
1803
Although no medical restrictions were imposed, industrial
disability of 15 percent was awarded, based on history of
back surgery, unoperated bulging or herniated (but, now
asymptomatic) disc and failure to provide continued
employment.
3700
Claimant was discharged, allegedly for job misconduct. Job
Service determination to the contrary was given preclusive
effect.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
HELEN H. DAVIS, :
:
Claimant, :
:
vs. :
: File No. 979357
ROSE HAVEN NURSING HOME, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
ALLIED MUTUAL INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
Claimant Helen Davis seeks benefits under the Iowa
Workers' Compensation Act upon her petition in arbitration
against defendant employer Rose Haven Nursing Home and its
insurance carrier, Allied Mutual Insurance Company.
Claimant asserts that she sustained a work injury to the
back on March 13, 1991; in particular, she alleges that two
incidents at work aggravated or "lit up" a previously
unknown condition, a calcified tumor near the spinal cord.
This cause came on for hearing in Cedar Rapids, Iowa on
January 6, 1993. The following exhibits were received into
evidence: joint exhibits 1-6, claimant's exhibits 1-17 and
defendants' exhibits A-F. The following witnesses testified
at hearing: claimant, Kimberly Holst, Alice Prince, Sharon
Fry and David Yearian.
ISSUES
The parties have stipulated to the existence of an
employment relationship between claimant and Rose Haven
Nursing Home on March 13, 1991. They have also stipulated
to the proper rate of compensation ($199.14 per week).
Issues presented for resolution include:
1. Whether claimant sustained injury arising out of
and in the course of her employment on March 13, 1991;
2. Whether the injury caused either temporary or
permanent disabilities;
3. The extent of each, if any;
4. Entitlement to medical benefits.
Page 2
With respect to medical benefits, it was stipulated
that the providers of medical services would testify in the
absence of contrary evidence that fees were reasonable and
incurred for reasonable and necessary treatment. Causal
connection to the work injury was disputed. Defendants also
disputed whether those expenses were authorized, but this
defense was ruled invalid at hearing, as defendants
forfeited the right to control the course of medical
treatment by denying liability on the claim.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
Helen Davis, 47 years of age at hearing, is a 1963 high
school graduate. She took a course in practical nursing at
the University of Iowa in 1966 and became licensed as a LPN.
She is currently taking courses in a registered nursing
program and anticipates receiving her Associates of Arts
Degree in Spring, 1993.
Claimant worked as a nurse's aide from 1963 to 1966, on
a part time basis while in school and on a full time basis
otherwise. Thereafter, she has continued working as an LPN
in the health care field with similar duties for a variety
of employers through the present date. She now has largely
paper work duties for a home health care supplier.
Ms. Davis was employed by Rose Haven as a staff nurse
from early 1990 through April 19, 1991, when she was
discharged by Nursing Home Administrator, David Yearian.
Prior to March 13, 1991, claimant had no history of
back problems and had never sought medical care with respect
to her back. On that date, she was working the p.m. shift,
and found it necessary to deliver two medical cardexes
weighing approximately seven pounds to Director of Nurses
Alice Prince, who was supervising that shift. Claimant,
five feet ten inches tall, had to lean slightly over a wall
39 inches high and four inches thick to place the cardex on
the desk, roughly two feet away. The desk was of roughly
standard height, approximately eight inches below the
opening in the adjacent wall.
Upon doing so, claimant experienced a sharp "grabbing"
sensation in the lower back with discomfort radiating to the
legs bilaterally. She described this "grabbing" as similar
to a sharp muscle cramp. Although Ms. Davis described the
incident as somewhat dramatic in nature (even that she was
unable to move for approximately two minutes), Alice Prince
noticed only that claimant grimaced and said "ouch," which
did not particularly concern or impress her that anything
was seriously wrong.
However, Prince also claimed that it was unnecessary
for claimant to bend (perhaps, except slightly) to place the
cardexes on the desk. Common observation reveals that for a
five foot ten inch individual of normal proportions to place
a seven pound object held in both hands on a 31 inch surface
at a distance of two feet requires bending nearly 45
Page 3
degrees. The finder of fact does not accept that claimant
was able to pass over the cardexes without bending.
Claimant was able to walk off the pain. However, she
suffered a recurrence later that same shift when she was
helping a resident up from her chair after dinner. Ms.
Davis testified that her back has been sore ever since.
In any event, she was able to finish her shift and was
not scheduled to work the next day. Although it is a little
unclear, judging from claimant's recorded statement of April
12, 1991 (to an insurance adjuster), she may have had
perhaps four more recurrences by the following day.
On March 15, claimant contacted her family physician,
Janet Gilbert, M.D. This contact was by telephone; Dr.
Gilbert charted (erroneously, as "2"-15-91) that low back
pain had started Wednesday at work (February 13 and March 13
both fell on a Wednesday) and prescribed Ibuprofen and
Flexeril by phone. Claimant was taken off work.
Defendants suggest that this note reflects an injury
dating back to February 15, almost a month before the work
incidents complained of. In a letter dated June 8, 1992,
Dr. Gilbert herself recognized that her chart note was in
error and should have been dated March 15. That note itself
goes on to state that if claimant was not better, she should
call for an appointment on Monday, March 18. This notation
would, of course, make no sense whatsoever if were recorded
on February 15.
On March 15, claimant's telephone complaint to Dr.
Gilbert was of low back pain. She was first seen by Dr.
Gilbert on March 25, at which time she was described as
"much much better but still having some pain." Dr. Gilbert
noted right sided pain in the greater sciatic notch and very
mildly positive straight leg raising on that side.
Assessment was of sacroiliac pain from inflammation.
Claimant was returned to work on a part time basis the same
day with restrictions.
The return to work did not go well. Claimant saw Dr.
Gilbert again on March 28 complaining of increased pain
while sitting and was referred to an orthopedic physician,
Lawrence C. Strathman, M.D.
Dr. Strathman first saw claimant on March 28 with
complaints of pain localized to the low back. Impression
was of acute low back strain. Dr. Strathman charted that
claimant gave history of her legs going weak during the
nurses' station incident, this being consistent with
claimant's later testimony.
Chart notes of April 2 indicate that claimant
apparently phoned in complaining that she was unable to work
due to pain and burning in the back. Dr. Strathman took her
off work until the next appointment, April 5. Claimant
still complained of soreness, especially if sitting or
standing for a long time. The discomfort was low over the
sacrum, more to the left side. Claimant had discomfort
Page 4
leaning to the left and extending. However, straight leg
raising was negative. Claimant was returned to work with
restrictions.
Ms. Davis continued to work until April 19. The events
of that night precipitated her discharge. Claimant felt put
upon by working with what she considered too few staff
members. Alice Prince did not feel the staff size was
unusual and reported that claimant was angry on that night.
Sharon Fry, activity director, believed that claimant was
unreasonably prickly and upset, although claimant reported
that Fry was actually the one out of sorts.
Fry wrote out a letter to the administrator on April 22
regarding these events. The letter was hand written.
Someone, presumably Administrator David Yearian or someone
at his direction, reduced this letter to a typed document.
Fry had ended her letter with the following paragraph:
I found the evening of 4-19-91 to be a relatively
calm and quiet night. There were no major
disruptions or problems while I was there. It was
a routine shift.
The individual who typed Fry's letter altered that
paragraph as follows:
I found the evening of 4-19-91 to be a relatively
calm and quiet night with the exception of the
disruption caused by Helen Davis.
Sharon Fry signed both letters. The "correction" of
the final paragraph is indicative of a conscious effort to
manufacture evidence by someone on behalf of defendant Rose
Haven.
In any event, claimant was discharged. Although
defendants would have us believe this discharge was for job
misconduct, this is an issue that has already been litigated
and decided adversely. A representative of Job Service of
Iowa (a sister agency to this) determined in a decision
dated August 29, 1991, that Rose Haven failed to furnish
sufficient evidence to establish misconduct for purposes of
unemployment compensation eligibility. This adjudication is
entitled to preclusive effect. Board of Supervisors,
Carroll County v. Chicago & North Western Transp. Co., 260
N.W.2d 813 (Iowa 1977).
In May, Dr. Strathman ordered a computerized tomography
scan which disclosed a probable herniated disc at L5-S1. By
May 9, claimant found her symptoms "quite extreme" and
magnetic resonance imaging studies were ordered. The MRI
discovered a lesion in the region of the conus medullaris
(the cone shaped lower end of the spinal cord at the level
of the upper lumbar vertebrae). Then, a myelogram agreed.
By this time, claimant's severe symptoms were left
sided, and extending to the left leg. Dr. Chad Abernathey
noted on July 17 that he did not believe the right sided
disc defect was contributing significantly to
Page 5
symptomatology. He recommended a surgical exploration of
L1-2 lesion, but defendants refused treatment in the belief
that the lesion and its symptomatology were not work
related.
On February 3, 1992, Dr. Abernathey wrote that he did
not feel that the lesion was secondary to the work related
injury, but that the small disc bulge might be. However, he
suggested that the treating surgeon would have the best feel
for whether or not the lesion was the cause of
symptomatology and whether or not it was trauma related.
At the University of Iowa Hospitals and Clinics,
claimant underwent surgical removal of the lesion or tumor
on June 12, 1991. Attending staff surgeon was Patrick W.
Hitchon, M.D.; resident surgeon was Richard K. Osenbach,
M.D. Apparently both physicians participated in the
procedure, although claimant understood that Dr. Osenbach
was the primary surgeon. The procedure was defined as
T12-L2 laminectomy, resection of intradural extramedullary
tumor.
Fortunately, the operation was successful. Dr. Hitchon
reported on June 13 that claimant was now free of radicular
pain, although she continued to complain of incisional pain.
Before leaving the hospital, claimant required further
surgery to repair spinal fluid leakage, but no permanent
damage resulted.
Pathologist Gary L. Baumbach reported that the
intradural mass was probably a myxopapillary ependymoma that
had undergone extreme degeneration and regression, although
the diagnosis was somewhat presumptive in that the entire
mass was necrotic and contained no viable neoplastic cells.
On August 12, 1991, Dr. Hitchon wrote that claimant
could seek employment with a 30 pound weight lifting
restriction for three months from the last operation (June
23), but thereafter the restriction "may be lifted without
limitation." Claimant was to be seen again for follow-up in
one year.
Claimant saw Dr. Hitchon again on September 21, 1992.
He reported on September 30 that claimant was found to be
neurologically intact and had no evidence of any permanent
impairment. She was not expected to have one in the future
in the absence of tumor recurrence.
No physician has imposed permanent restrictions
relating either to the tumor or the lumbar disc problem.
Claimant, on the other hand, voluntarily limits her lifting
to 20 pounds and complains of residual pain ("like a
bruise") which is exacerbated if she stands, sits, bends, or
stoops extensively. She claims that Dr. Hitchon verbally
advised her to "watch" lifting, bending and body alignment,
but no written restrictions of any kind appear of record.
The petition in this case was filed on May 10, 1991.
Claimant has had adequate time and opportunity to obtain
evidence of any restrictions imposed by Dr. Hitchon since
she has been represented by counsel. If a party has the
Page 6
power to produce more explicit and direct evidence than this
hearsay assertion, but does not, it may properly be inferred
that such other evidence would lay open deficiencies in its
case. Crosser v. Iowa Dept. of Public Safety, 240 N.W.2d
682 (Iowa 1976). Claimant has failed to prove the existence
of any medically imposed permanent restrictions relating to
the work injury of March 13, 1991.
Dr. Osenbach offered a detailed report dated September
25, 1991. With respect to the "slightly bulging disc" on
the right at L5-S1, he felt it "possible" that the disc was
causally related to the transient right leg pain and that it
was "certainly possible" that the work incident of March 13
was causally related. Dr. Osenbach did not believe the disc
problem caused the tumor to become symptomatic but pointed
out that "on occasion some tumors and cysts within the
spinal canal can become symptomatic following a episode of
trauma such as a lifting injury." The doctor specified that
he could not state unequivocally that such a relationship
did exist. However the doctor further noted that given the
temporal onset of symptoms following injury and the fact
that those symptoms had essentially resolved with the
removal of the tumor, one could "certainly argue the case"
for a causal nexus.
In a letter to claimant's attorney dated June 24, 1992,
Dr. Osenbach opined "that there is certainly greater than
50% chance that the precipitation of Mrs. Davis's symptoms
was related to the injury sustained at her job." Defendants
strenuously argue that this constitutes a conflict with the
doctor's previous opinion and suggest that his credibility
is destroyed. This writer sees no such conflict.
Claimant was also seen for evaluation by James B.
Worrell, M.D., in November 1992. Dr. Worrell assigned a ten
percent impairment rating to the body as a whole (one
percent due to loss of motion of the spine, seven percent
due to the unoperated L5-S1 disc on the right and two
percent for sensory loss impairment of the left leg). In a
letter dated December 2, 1992, he opined that claimant's
"back symptoms" were causally related to the work injury and
that he agreed with Dr. Osenbach's comments "[a]s far as the
relationship to the tumor." Apparently then, Dr. Worrell
believes that the bulging or herniated disc was causally
related to the work injury under review. Dr. Worrell did
not suggest any physical restrictions, although he
apparently was given an incorrect history of a 30 pound
lifting restriction and very limited patient care.
Claimant's medical records were also reviewed by Daniel
J. McGuire, M.D., although he did not physically examine
claimant. Dr. McGuire is a board certified orthopedic
surgeon and a frequent defense expert in litigation before
this agency. In Dr. McGuire's view, the work incident of
March 13 neither caused the tumor nor caused it to become
symptomatic. He believed that if trauma had caused the
tumor to become symptomatic, symptoms should have become and
remained constant, rather than changing over the first few
weeks. He also found significant that the surgeon's report
and pathology reports did not indicate hemorrhage into the
Page 7
tumor, which he would have expected had trauma caused the
onset of symptomatology. Indeed, Dr. McGuire believed the
surgical and pathology reports to be "the most convincing
evidence" that the work incident did not cause the tumor to
become symptomatic.
It is found that claimant did experience two work
incidents on March 13, 1991 as she described. As discussed
below, those incidents caused the spinal tumor to become
symptomatic, all of which directly resulted in two surgical
procedures.
CONCLUSIONS OF LAW
Although it is agreed that an employment relationship
existed between Helen Davis and Rose Haven Nursing Home on
March 13, 1991, the parties dispute whether claimant
sustained injury arising out of and in the course of
employment as she alleges.
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).
Claimant also 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).
It has been also said that the "arising out of"
requirement is satisfied by showing a causal relationship
between the employment and the injury. Sheerin v. Holin
Co., 380 N.W.2D 415 (Iowa 1986).
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).
Page 8
A personal injury contemplated by the workers'
compensation law means an injury, the impairment of health
or a disease resulting from an injury which comes about, not
through the natural building up and tearing down of the
human body, but because of trauma. The injury must be
something which acts extraneously to the natural processes
of nature and thereby impairs the health, interrupts or
otherwise destroys or damages a part or all of the body.
Although manylatively light
weight, it is magnified in a bending position with the arms
outstretched, much as a lever on a fulcrum. This is clearly
a vulnerable posture. Physicians have frequently testified
before this agency that even minor twists and turns or
lifting may cause injury or even herniate a disc; more than
one has pointed out that even a sneeze can do so. The
second incident, when claimant was helping a resident rise
from a chair, is much more typical of the onset of back
symptomatology, since it involved relatively strenuous
lifting. Taken together, these two incidents led to and
"lighted up" the discovery and eventual surgical excision of
claimant's spinal tumor. Since, at minimum, these incidents
caused claimant to be off work from March 15 through March
25 and April 2 through April 5, an injury arising out of and
in the course of employment has been established.
Testing eventually uncovered two separate problems: a
right-sided disc bulge or herniation at L5-S1 (medical
opinion varies as to which) and the tumor at the top of the
lumbar spine. Causation as to these problems must be
Page 9
discussed separately.
With respect to the bulging or herniated disc, Dr.
Hitchon expressed no opinion, Dr. Osenbach found only a
"possibility" of a causal nexus and Dr. Worrell was able to
state quite definitely that "her back symptoms" were
causally related, which presumably includes the lumbar disc,
since his impairment rating included the disc. Dr. McGuire
did not address this question. However, claimant has
basically not had right-sided symptoms since the early weeks
following injury. Still, the only two physicians to express
an opinion find, respectively, a possibility that the
bulging disc was caused by the injury and a "definite"
opinion on causality. The weight of the evidence
establishes that the pathological disc condition at L5-S1,
whether the same be merely bulging or actually herniated, is
causally related to the work injury.
There is a range of opinion with respect to the tumor.
Claimant does not allege that the work caused her tumor, but
only that it was caused to become symptomatic. Since, as
seen above, an aggravation or "lighting up" of a preexisting
condition is compensable, this allegation is sufficient if
it is proven.
Dr. Hitchon wrote on November 16, 1992, that he could
not incriminate any event as being directly or indirectly
responsible for the tumor. He does not express an opinion
either way on whether any incident caused the tumor to
become symptomatic. Thus, his opinion is irrelevant to
claimant's theory of the case. Dr. Osenbach, the other
treating surgeon, finds there to be a greater than 50
percent chance that the work injury caused the onset of
symptoms. Of course, it will be noted that claimant was
asymptomatic before the incident and symptomatic afterwards.
It is hardly unreasonable to find significance in this
strictly temporal relationship. Similarly, Dr. Worrell has
opined that a causal relationship exists.
This leaves Dr. McGuire. Dr. McGuire never saw
claimant, but only reviewed certain medical records. In his
letter of December 4, 1992, he betrays unfamiliarity even
with those, in that he reports that the board certified
physicians who were "caring" for claimant "did not feel the
work incident caused the tumor or caused the tumor to become
symptomatic." This assertion is clearly erroneous. Dr.
McGuire relies heavily upon the surgical report and the
pathology report in reaching his opinion. However, the only
one of the actual surgeons to offer an opinion as to the
causation of symptoms reached an opposite conclusion. And,
it is noted that in the experience of this agency, Dr.
McGuire is well known for consistently offering
defense-friendly opinions in litigated cases. Under Iowa
Code section 17A.14(5), the agency's experience, technical
competence and specialized knowledge may be utilized in the
evaluation of evidence.
All things considered, the opinions of Drs. Osenbach
and Worrell are entitled to greater weight than the opinion
of Dr. McGuire.
Page 10
Since this decision finds that claimant sustained
permanent disability, it is necessary to determine the
extent of her healing period. Under Iowa Code section
85.34(1), healing period is compensable beginning on the
date of injury and continuing until the employee has
returned to work, it is medically indicated that significant
improvement from the injury is not anticipated, or until the
employee is medically capable of returning to substantially
similar employment, whichever first occurs. Healing period
can be interrupted or intermittent. Willis v. LeHigh
Portland Cement Co., 2-1 Iowa Industrial Commissioner
Decisions 485 (1984).
The record shows that claimant was off work from March
15 through March 25 (11 days), April 2 through April 5 (4
days) and from June 12 through "three months" from the
second surgery, which occurred on June 23. Therefore, it is
held that the final segment of healing period ran from June
12 through September 23, 1991 (14 weeks, 6 days). The total
is 17 weeks, 0 days.
Next, it is appropriate to turn to the question of
permanent partial disability.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
Page 11
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
At present, claimant has no medically imposed physical
restrictions. For obvious reasons, self-imposed
restrictions are much less reliable in determining extent of
industrial disability. There is nothing claimant could do
before that she cannot do now in terms of medical
restriction. There are, however, two factors supporting an
award of industrial disability. Claimant's surgical history
and unoperated lumbar disc may cause her to be a less
desirable employee in the eyes of at least some potential
employers. And, defendants refused to give claimant
continued employment following the injury. This, of itself,
may justify an award. McSpadden v. Big Ben Coal Co., 288
N.W.2d 181 (Iowa 1980); Pigneri v. Ringland-Johnson-Crowley,
Number 838742 (Appeal Decision, July 31, 1991). The
commissioner has awarded ten percent industrial disability
where this was the only apparent factor supporting an award.
Galli v. Advanced Drainage Systems, Inc., Number 825795
(Appeal Decision, November 30, 1989).
Considering then these factors in specific and the
record otherwise in general, it is held that claimant has
sustained a permanent industrial disability equivalent to
fifteen percent of the body as a whole, or 75 weeks.
Claimant's assertion that she should be awarded additional
industrial disability because Administrator Yearian has
persisted in denying any injury whatsoever is rejected as an
improper factor in determining industrial disability.
The parties also dispute entitlement to medical
benefits, although it is agreed that providers of services
would testify in the absence of contrary evidence that fees
charged were fair and reasonable and incurred for reasonable
and necessary treatment. The expenses are attached as an
Page 12
addendum to the prehearing report as follows:
Anesthesiologists Office Svc $ 336.00
Cedar Rapids Radiologists 770.00
Iowa Medical Clinic, P.C. 447.00
The University of Iowa
Hospitals and Clinics 28,896.54
Williamsburg Family Practice Ctr 66.00
Marengo Memorial Hospital 199.00
Mercy Medical Center 3,817.30
Medical Mileage (1,564 miles) 328.44
Prescriptions 51.08
$34,911.36
Causal relationship is established as per the foregoing
analysis. Defendants shall pay the above medical bills.
Page 13
ORDER
THEREFORE IT IS ORDERED:
Defendants shall pay seventeen (17) weeks of
intermittent healing period benefits (March 15 through March
25, April 2 through April 5, and June 12 through September
23, 1991) at the stipulated rate of one hundred ninety-nine
and 14/100 dollars ($199.14), totalling three thousand three
hundred eighty-five and 38/100 dollars ($3,385.38).
Defendants shall pay unto claimant seventy-five (75)
weeks of permanent partial disability benefits commencing
September 24, 1991, at the stipulated rate, totalling
fourteen thousand nine hundred thirty-five and 50/100
dollars ($14,935.50).
All accrued weekly benefits shall be paid in a lump sum
together with statutory interest.
Defendants shall pay the medical bills set forth above
totalling thirty-four thousand nine hundred eleven and
36/100 dollars ($34,911.36).
Defendants shall file claim activity reports as
required by the agency and upon compliance with this award.
Costs of this action are assessed to defendants
pursuant to rule 343 IAC 4.33.
Signed and filed this ____ day of March, 1993.
________________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Thomas J Currie
Attorney at Law
3401 Williams Blvd SW
PO Box 998
Cedar Rapids Iowa 52406-0998
Mr David L Jenkins
Attorney at Law
801 Grand Avenue
Suite 3700
Des Moines Iowa 50309-2727
2206; 1108; 1803; 3700
Filed March 11, 1993
DAVID R. RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
HELEN H. DAVIS,
Claimant,
vs.
File No. 979357
ROSE HAVEN NURSING HOME,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
ALLIED MUTUAL INSURANCE
COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
2206; 1108
Minor work incidents were held to have "lighted up" or
aggravated a calcified, necrotic intradural tumor, later
surgically removed.
1803
Although no medical restrictions were imposed, industrial
disability of 15 percent was awarded, based on history of
back surgery, unoperated bulging or herniated (but, now
asymptomatic) disc and failure to provide continued
employment.
3700
Claimant was discharged, allegedly for job misconduct. Job
Service determination to the contrary was given preclusive
effect.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ARTHUR JEFFREY BATES,
Claimant,
vs.
File No. 979525
WOLFE MASONRY COMPANY, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
HAWKEYE-SECURITY INSURANCE
COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
Claimant Arthur Bates seeks Iowa workers' compensation
benefits pursuant to his petition in arbitration against his
employer, Wolfe Masonry Company, Inc., and insurance carrier
Hawkeye-Security Insurance Company. Mr. Bates sustained an
injury to his back in a fall on March 19, 1991. A hearing
was thereupon held in Des Moines, Iowa on April 1, 1993.
The record consists of claimant's exhibits 1 through 17,
defendants' exhibits A and B, and the testimony of claimant
and Leonard Wolfe.
ISSUES
The parties have stipulated that claimant sustained
injury arising out of and in the course of his employment on
March 19, 1991, that the injury caused temporary disability
from March 20 through July 14, 1991, to the rate of
compensation ($161.50), and that defendants are entitled to
credit for voluntary payment of 35 weeks of permanent
partial disability benefits.
Issues presented for resolution include:
1. Whether the injury caused permanent disability;
2. If so, the extent of claimant's industrial
disability; and,
3. Entitlement to medical benefits.
With respect to medical benefits, defendants dispute
whether fees or prices charged by the provider (of a
hospital bed) are fair and reasonable, whether that
treatment was reasonable and necessary, and whether the
expense is causally connected either to the work injury or
to the medical condition upon which the claim is based.
Authorization was disputed by defendants, but that defense
was ruled invalid at hearing because defendants denied
Page 2
liability on the claim, thus forfeiting the right to control
medical care.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
Arthur Bates, 34 years of age at hearing, is a 1977
high school graduate. Prior to the work injury, Mr. Bates
completed one semester of community college work in
drafting. He has since returned to school and anticipates
receiving an Associate of Arts degree in drafting technology
in May 1993. Mr. Bates has maintained a B average in his
studies. There is no showing that defendants have helped
finance his continued education.
Claimant's work history includes being a bottle sorter
and route salesman for a soft drink bottler, concrete block
mason, armored car driver and messenger, packing house
worker (almost five years), construction laborer, part-time
taxi cab driver and two separate stints as a laborer for
defendant Wolfe Masonry Company. Claimant was so employed
for approximately four months at age 20, and again for one
and one-half days prior to the subject work injury.
Claimant also anticipates accepting work as a production
manager for Able Waterproofing after receiving his
Associate's degree. He participated in a job training
program with that employer for nine weeks during the summer
of 1992.
Claimant was injured on his second day on the job (as a
laborer earing $6.50 per hour) when a scaffold broke and he
fell roughly 12 or 13 feet. X-ray examination at Iowa
Methodist Medical Center disclosed slightly comminuted,
wedge-type acute compression fracture deformities at
vertebral bodies T9, T10, and T11. Claimant's treating
physician was Daniel J. McGuire, M.D..
Dr. McGuire found claimant to be neurologically intact
and the spine was stable. He was discharged home on March
23, 1991 for bed rest of 20 to 22 hours per day.
Claimant rented a hospital bed for this purpose for one
month at a cost of $100. The record does not show that this
item was prescribed by Dr. McGuire.
On May 9, Dr. McGuire released claimant to return to
part-time work (three to four hours per day) with a
restriction against lifting more than 30 to 40 pounds.
Chart notes of May 24 reflect that claimant still had back
pain and that Dr. McGuire told him this might continue for
the rest of his life, but that the associated disability was
"small."
On June 13, Dr. McGuire encouraged claimant to return
to work at four hours per day with a lifting restriction of
50 pounds. However, claimant was not allowed to return to
work. On July 11, Dr. McGuire released him to return to
"full duty." Claimant attempted to return to work for
one-half day before he and another worker were released.
Page 3
Claimant has made further attempts to return to work with
Wolfe Masonry, but has not been hired (although other
workers have been hired). Leonard Wolfe, defendants' owner,
testified that claimant was not a good worker. Of course,
this is inconsistent with the fact that he was hired for a
second time prior to the work injury, and briefly put back
to work afterwards.
It does not appear that Dr. McGuire has imposed any
permanent restrictions. Claimant was found to have reached
maximum medical improvement on August 22, 1991. Dr. McGuire
estimated a permanent "disability" (read as "impairment") of
seven percent according to American Medical Association
Guidelines. Claimant was released PRN (return as needed).
Claimant was also seen for evaluation on October 10,
1992, by Jack W. Brindley, M.D.. Like Dr. McGuire, Dr.
Brindley is an orthopedic surgeon. Dr. Brindley found
claimant's prognosis to be "somewhat guarded," and estimated
physical impairment to the body as a whole as 10 percent.
Dr. Brindley also recommended restrictions against lifting
in excess of 50 pounds and against frequent bending.
Dr. Brindley's proposed restrictions appear more
suitable to claimant's current condition than the
unrestricted release from Dr. McGuire. Claimant currently
suffers discomfort when he stands or sits in excessive of 30
minutes, finds bending and pushing difficult, and is less
able to engage in certain recreational activities such as
motorcycle riding, golf and bowling.
Claimant has sought other work while attending school
(full-time since August 1991). One employer, a meat packer,
refused employment due to claimant's medical history. While
this refusal to hire may relate to claimant's back
condition, it may equally well relate to his heart condition
(rheumatic fever as a child, and a later history of
"galloping" heart rate diagnosed as paroxysmal
supraventricular tachycardia or atrial fibrillation).
ANALYSES AND CONCLUSIONS OF LAW
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
Page 4
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).
Defendants dispute that the injury caused permanent
disability. While Dr. McGuire did not impose medical
restrictions, he has rated permanent impairment to the body
as a whole, which implies loss of function. He also has
suggested that claimant may have lifelong pain. Claimant's
post-injury history suggests that this is true. Dr.
Brindley has also rated impairment and has suggested medical
restrictions.
No physician whatsoever has testified that the injury
did not cause permanent disability. Claimant has
unquestionably met his burden of proof on the issue.
Claimant has sustained industrial disability.
Industrial disability was defined in Diederich v. Tri-City
Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It
is therefore plain that the legislature intended the term
`disability' to mean `industrial disability' or loss of
earning capacity and not a mere `functional disability' to
be computed in the terms of percentages of the total
physical and mental ability of a normal man."
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications,
experience, motivation, loss of earnings, severity and situs
of the injury, work restrictions, inability to engage in
employment for which the employee is fitted and the
employer's offer of work or failure to so offer. Olson v.
Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963);
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980);
Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660
(1961).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
The restrictions suggested by Dr. Brindley seem more
consistent with claimant's current condition of ill-being
than the unconditional release by Dr. McGuire. Also, Dr.
Brindley has had the opportunity to see claimant more
recently than Dr. McGuire, although for evaluation as
opposed to treatment. It is not necessarily the case that a
treating physician's testimony is to be given more weight
than a later examining physician. Rockwell Graphics
Systems, Inc. v. Prince, 366 N.W.2d 187 (Iowa 1985).
Dr. Brindley's restrictions will foreclose claimant
from some of the jobs he has previously held, including soft
drink route sales (tanks weigh from 50 to 60 pounds) masonry
laborer (Leonard Wolfe concedes that a laborer must lift at
Page 5
least 90 pounds) and some packing house work (which requires
substantial lifting and bending). Defendants are not
entitled to substantial "credit" for claimant's subsequent
educational attainments because they have not contributed to
the cost. Nonetheless, it is incontrovertible in light of
those attainments that claimant had a true capacity for
retraining at the time of injury. Claimant has lost
substantial earnings through his lengthy unemployment
following the injury and defendant's refusal or inability to
offer continued employment is, by itself, a factor
justifying an award of industrial disability, see McSpadden
v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and numerous
subsequent cases decided by this agency.
Considering then these factors in specific and the
record otherwise in general, it is held that claimant has
sustained an industrial disability equivalent to 20 percent
to the body as a whole, or 100 weeks.
Under Iowa Code section 85.27, defendants are required
to furnish reasonable services and supplies to treat an
injured employee. The only "medical" item in dispute is the
$100 hospital bed rental. While this may seem to be a
common sense item for an injured worker sent home to 20 to
22 hours of bed rest per day, the record fails to show that
rental of this bed was medically prescribed. It is
claimant's burden to prove "the necessity of treatment and
the reasonableness of charges." The latter requires expert
opinion under current agency precedent. Anderson v. High
Rise Construction Specialists, Inc., file number 850096
(App. Decn. July 31, 1990). Accordingly, claimant is not
entitled to reimbursement on this record.
ORDER
THEREFORE IT IS ORDERED:
Defendants shall pay unto claimant one hundred (100)
weeks of permanent partial disability at the stipulated rate
of one hundred sixty-one and 56/100 dollars ($161.56)
commencing July 14, 1991.
Defendants shall have credit for thirty-five (35) weeks
of permanent partial disability voluntarily paid prior to
hearing.
All accrued benefits shall be paid in a lump sum
together with statutory interest.
Defendants shall file a claim activity report upon
compliance.
Costs of this action are assessed to defendants.
Signed and filed this ____ day of May, 1993.
Page 6
-----------------------------
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. J. Terrence Denefe
Attorney at Law
104 South Court Street
PO Box 493
Ottumwa, IA 52501
Mr. Thomas Henderson
Attorney at Law
1300 First Interstate Bank Bldg.
Des Moines, IA 50309
5-1803; 2504
Filed May 5, 1993
David R. Rasey
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ARTHUR JEFFREY BATES,
Claimant,
vs.
File No. 979525
WOLFE MASONRY COMPANY, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
HAWKEYE-SECURITY INSURANCE
COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803
Industrial disability was determined.
2504
Although claimant was released home for 20 to 22 hours per
day of bed rest following three level thoracic fracture, he
failed to present expert testimony that the rental of a
hospital bed was reasonable (or that it was medically
prescribed). Reimbursement on this item was denied.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
WILLIAM W. PIERCE, :
:
Claimant, :
:
vs. :
: File No. 979540
MENEFEE DRYWALL COMPANY, INC.,:
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by William
W. Pierce, claimant, against Menefee Drywall Company, Inc.,
employer, hereinafter referred to as Menefee, and CNA,
insurance carrier, defendants, for workers' compensation
benefits as a result of an alleged injury on March 12, 1991.
On March 9, 1993, a hearing was held on claimant's petition
and the matter was considered fully submitted at the close
of this hearing.
The parties have submitted a hearing report of con
tested issues and stipulations which was approved and
accepted as a part of the record of this case at the time of
hearing. The oral testimony and written exhibits received
during the hearing are set forth in the hearing transcript.
According to the prehearing report, the parties have
stipulated to the following matters:
1. An employer-employee relationship existed between
claimant and Menefee at the time of the alleged injury.
2. Claimant is seeking temporary total or healing
period benefits only from March 13, 1991 through May 7, 1991
and from May 16, 1991 through August 16, 1991 and defendants
agree that if they are liable for the injury, claimant is
entitled to such benefits for these periods of time.
3. At the time of injury claimant's gross rate of
weekly compensation was $526.00; he was single; and he was
entitled to one exemption. Therefore, claimant's weekly
rate of compensation is $303.72 according to the Industrial
Commissioner's published rate booklet for this injury.
ISSUES
Page 2
The parties submitted the following issues for determi
nation in this proceeding:
I. Whether claimant received an injury arising out of
and in the course of employment; and,
II. The extent of claimant's entitlement to disability
benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
A credibility finding from claimant's demeanor was not
possible as claimant failed to appear for hearing and only
testified by written deposition out of the presence of the
undersigned administrative law judge.
Claimant worked for Menefee as a drywaller from July
1990 until August 1991. His duties consisted of hanging
drywall and framing.
On or about March 12, 1991, claimant injured his back
after lifting a 130 pound sheet of drywall with a fellow
employee. Claimant twisted and he felt a snap in the back.
The pain grew worse during the course of the day and
claimant could resume working the next couple of days.
After calling in, claimant was referred by Menefee to a
physician for treatment. This finding is based upon
claimant's uncontroverted deposition testimony and the
medical records.
As a result of the injury of March 12, 1991, claimant
was absent from his work at the times stipulated in the
hearing report upon the advice of his physicians. Following
the injury, Robert S. Tomas, M.D., treated claimant
initially. When claimant's condition failed to improve, he
was referred to Thomas J. Hughes, M.D., a family practi
tioner and a specialist in occupational medicine. This
treatment was conservative and consisted of absence from
work, medication and physical therapy. Claimant was
returned to work with restrictions against heavy lifting and
deep bending but still experienced pain after only a few
hours work. Claimant was taken off work a second time with
additional therapy. Claimant was last treated by Dr. Hughes
on August 5, 1991. At that time, Dr. Hughes felt there was
nothing else he could offer by way of treatment and he
released claimant back to work without restrictions.
Claimant did not return to work in August 1991. He
called Menefee on the day he was to report for work and
explained that he could not show up as he had moved his
residence and could not afford the cost of travel and motel
expenses. Claimant explained that his weekly benefit check
from the workers' compensation carrier was delayed and he
did not have money available. Menefee then fired claimant
for refusing to return to work.
Page 3
From the evidence submitted, it could not be found that
the work injury of March 12, 1991 was a cause of permanent
impairment to the body as a whole. No permanent work
restrictions were imposed by Dr. Hughes in his release for
work in August 1991. Dr. Hughes explained in his September
1991 report that he was reluctant to give claimant a perma
nency rating due to inconsistent testing results. He stated
that he might give a five percent rating but no more. This
is insufficient medical evidence of impairment. Also,
claimant's current physical condition is unknown as he chose
not to appear and give testimony at hearing.
Furthermore, it is impossible to determine claimant's
current loss of earning capacity or industrial loss, if any,
that may be due to the injury. Claimant, in his deposition,
states he was not physically capable of returning to dry
walling employment and had made some unsuccessful attempts
to do so. However, again, claimant's failure to appear for
hearing negates an examination of claimant's current employ
ment situation.
CONCLUSIONS OF LAW
I. Claimant has the burden of proving by a preponder
ance of the evidence that claimant received an injury aris
ing out of and in the course of employment. The words "out
of" refer to the cause or source of the injury. The words
"in the course of" refer to the time and place and circum
stances of the injury. See generally, Cedar Rapids Commu
nity Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v.
DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63
(1955). An employer takes an employee subject to any
active or dormant health impairments. A work connected
injury which more than slightly aggravates the condition is
considered to be a personal injury. Ziegler v. U.S. Gypsum,
252 Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited
therein.
In the case sub judice, claimant's deposition testimony
and the medical records was uncontroverted as to the occur
rence of the injury at the time specified in the petition
herein.
II. As claimant failed to show that he suffered perma
nent impairment or disability from the injury, he is not
entitled to an award of permanent disability benefits.
Claimant is entitled to temporary total disability benefits
under Iowa Code section 85.33(1) but he already has been
paid in excess of his entitlement stipulated to in the hear
ing report.
ORDER
1. Claimant's petition is dismissed with prejudice and
he shall take nothing from this proceeding.
2. Claimant shall pay the costs of this action pur
suant to rule 343 IAC 4.33.
Page 4
Signed and filed this ____ day of April, 1993.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Michael J. Schuster
Attorney at Law
318 South River Park Drive
Guttenberg, Iowa 52052
Mr. Elliott R. McDonald, Jr.
Attorney at Law
P O Box 2746
Davenport, Iowa 52809
5-1803
Filed April 6, 1993
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
WILLIAM W. PIERCE,
Claimant,
vs.
File No. 979540
MENEFEE DRYWALL COMPANY, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
CNA INSURANCE COMPANIES,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803 - Non-precedential, extent of disability case.