Page 1
before the iowa industrial commissioner
_________________________________________________________________
:
LEILA BIX, :
:
Claimant, :
:
vs. : File Nos. 981358
: 930740
EXCEL CORPORATION, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE COMPANY, :
:
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
August 26, 1992 is affirmed and is adopted as the final agency
action in this case with the following additional analysis:
Claimant has suffered numerous injuries to her back. Some of
these injuries occurred while working as a nurse's aide for a
previous employer. However, the record does not contain evidence
that the prior back injuries resulted in any permanent condition.
Claimant did not consult a doctor for her back during the three
years between her back injury as a nurse's aide and her back
injury with defendant. A pre-employment physical did not reveal
any back condition. Any back condition from claimant's prior
injuries as a nurse's aide were either resolved, or latent. No
apportionment for those injuries is required.
Claimant's December 29, 1990 forklift injury to her back did not
result in further permanent impairment according to Dr. Berg. An
apportionment for that injury is not appropriate. Claimant's
current industrial disability is caused by her October 12, 1989
injury.
Defendants shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of January, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Page 2
Copies To:
Mr. H. Edwin Detlie
Attorney at Law
114 North Market
Ottumwa, Iowa 52501-2912
Ms. Dorothy L. Kelley
Attorney at Law
500 Liberty Building
Des Moines, Iowa 50309
Mr. Stephen W. Spencer
Attorney at Law
218 6th Avenue STE 300
P O Box 9130
Des Moines, Iowa 50306
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LEILA BIX, :
:
Claimant, :
:
vs. :
: File Nos. 981357
EXCEL CORPORATION, : 930740
: 981358
Employer, :
:
and :
:
CNA INSURANCE COMPANY, :
:
Insurance Carrier, : A R B I T R A T I O N
______________________________:
: D E C I S I O N
LEILA BIX, :
:
Claimant, :
:
vs. :
:
EXCEL CORPORATION, :
:
Employer, :
Self-Insured, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
Claimant Leila Bix claims to have sustained work
related injuries to her right arm on March 3, 1989 (number
981357) and to her back on October 12, 1989 (number 930740)
and December 30, 1990 (number 981358). She has filed
petitions in arbitration in each case seeking benefits under
the Iowa Workers' Compensation Act from her employer, Excel
Corporation ("Excel"). Excel was insured for workers'
compensation purposes by CNA Insurance Companies ("CNA")
with respect to the 1989 injuries, but was self-insured with
respect to the 1990 injury.
These causes came on for hearing in Des Moines, Iowa on
August 12, 1992. Testimony was received from claimant and
Mary Brooks. The depositions of Donald Berg, M.D., and
James Weinstein, D.O., are also in evidence. Joint exhibits
1-20 were received. Defendants' exhibit A was excluded upon
objection.
After the hearing commenced, claimant conceded that she
had sustained no permanent disability to the right arm and
moved to dismiss file number 981357. Because the voluntary
Page 2
dismissal was within ten days of hearing, it required
approval under Iowa Rule of Civil Procedure 215. As no
objection was interposed, approval was granted; case number
981357 stands dismissed without prejudice.
ISSUES
In case number 930740, the parties have stipulated that
claimant sustained an injury arising out of and in the
course of employment on October 12, 1989, that the injury
caused temporary disability from October 13 through October
24, 1989 and from March 5 through March 8, 1990, that all
requested medical benefits have been paid by defendants, and
that a total of $468.52 was voluntarily paid in benefits
prior to hearing.
The parties further stipulated to a compensation rate
of $204.54 based upon gross weekly earnings of $300.00, a
marital status of married and entitlement to two exemptions.
The Guide to Iowa Workers' Compensation Claim Handling shows
that an individual so situated is entitled to a benefit rate
of $195.51. The stipulations as to gross weekly earnings,
marital status and number of exemptions are stipulations of
fact. The stipulation as to the proper rate is a legal
conclusion based upon those facts. The incorrect
stipulation as to rate is accordingly rejected. Based upon
the factual stipulations, claimant's rate is $195.51 per
week.
Issues presented for resolution in file number 930740
include:
1. Whether the work injury caused permanent
disability;
2. The extent of permanent disability, if any.
In file number 981358, claimant and Excel Corporation
have stipulated to the existence of an employment
relationship and to the rate of compensation ($238.43).
Issues presented for resolution in case number 981358
include:
1. Whether claimant sustained an injury arising out of
and in the course of her employment on December 30, 1990;
2. Whether the injury caused temporary or permanent
disability;
3. The extent of temporary and permanent disability,
if any;
4. Entitlement to medical benefits.
With respect to medical benefits, the parties have
stipulated that both medical treatment and the cost thereof
are fair and reasonable. Causal connection to the work
injury is disputed, as is whether the expenses were
authorized by the defendant. However, the authorization
Page 3
defense was ruled invalid because Excel disputes whether
claimant sustained an injury arising out of and in the
course of employment. By denying liability, defendant
waives the right to control medical care. Barnhart v. MAQ,
Incorporated, 1 Iowa Indus. Comm'r Rep. 16 (Appeal Dec.
1981).
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
Leila Bix is a right handed 53-year-old woman of modest
stature (4 feet 11 inches, 130 pounds). Educationally, she
failed to be advanced from the eighth grade and dropped out
of school while repeating the year. Her only further
training is some 60 hours of on-the-job training as a
nurse's aide.
The record is a little incomplete as to claimant's work
history. She worked as a solderer in a electronics factory
for about two years, manufactured cardboard boxes for
several months, and worked as a nurse's aide from at least
1984 to 1988.
The occupation of nurse's aide is notorious for the
requirement of frequent heavy lifting and manipulation of
patients. Chart notes (of imperfect legibility) prepared by
D. Dale Emerson, M.D., show three work incidents involving
claimant's back. On April 26, 1985, claimant "heard a pop"
in her back while lifting a male patient into a shower
chair. Dr. Emerson diagnosed acute back strain and
administered a steroid injection and medications. By May
2nd, claimant was feeling better and wanted to return to
work.
Later chart notes reflected lumbar pain developing when
claimant lifted a patient on October 18, 1985 at work.
Claimant demonstrated lumbar spasms and was diagnosed as
suffering acute back strain. However, chart notes of
October 28 show the strain was resolved and claimant had "no
pain at all."
Dr. Emerson saw claimant again in October 1986 when she
complained of twisting her back while putting a patient in
bed the night before. Acute back strain was again
diagnosed. Two weeks of workers' compensation benefits were
paid. By October 20, chart notes show that claimant still
had a little tender spot, but she was returned to work and
the problem deemed "resolved." Dr. Emerson does not record
further back complaints through his most recent chart note,
June 15, 1987.
J. J. Gleich, M.D., interpreted a radiographic study of
the lumbar spine as showing no fracture or destructive
process, normal disc space, but considerable straightening
of the normal lumbar curvature consistent with muscular
spasm.
On February 17, 1988, claimant applied for work with
Excel Corporation, a meat packing business. A
Page 4
pre-employment physical was performed by Mary Brooks, R.N.
Ms. Brooks was then occupational health nurse for Excel and
is now assistant human resources manager. Claimant gave Ms.
Brooks a history of having sprained her back in 1986 and
losing one week's time, but having no problems since. Ms.
Brooks rated claimant as 10/10 in each of seven categories
of strength and flexibility.
Claimant's testimony that she suffered no back problems
between 1986 and the stipulated injury of October 12, 1989
is accepted as fact.
On October 12, 1989, claimant was employed wrapping and
bagging pork tenderloins. While setting up to work, she
bent over to pick up several items from the floor when she
was struck by a carelessly operated fork lift truck. The
driver of the fork lift did not realize he had struck
claimant, and continued to push her for approximately 15
yards before someone shouted at him to stop.
Ms. Bix was first treated by the company physician,
Donald Berg, M.D. Dr. Berg is a board certified orthopedic
surgeon who testified by deposition on July 28, 1992.
Dr. Berg diagnosed sprain and strain of the muscles and
ligaments of the lower back, noting evidence of muscle
spasms throughout the back. He released claimant to return
to work on October 25, but with no lifting, twisting or
bending. By December 18, claimant still complained of
stiffness and soreness. Range of motion was limited with
evidence of muscle tightness, but no muscle spasm. Claimant
was given a ten pound lifting limit, a limit which has
fluctuated over time, but is similar to the current lifting
restriction Dr. Berg recommends (10-25 pounds, depending on
how she is feeling).
Unhappily, Ms. Bix has continued to suffer back pain
and loss of range of motion. She has also had a number of
subsequent back incidents. She slipped on a liquid on the
company cafeteria floor on January 31, 1990 and developed
renewed muscle spasm. The pain went away after a few days,
and Dr. Berg did not feel there was any new injury. Muscle
spasms were seen again on March 5, and claimant was taken
off work through March 8. She was released to light duty
work with a five pound lifting limit, and Dr. Berg charted
his opinion that: "it would be a good idea for her to get
into another job field."
On August 24, claimant suffered another lifting
incident at work, which Dr. Berg felt was merely an
aggravation of the preexisting problem. He again charted a
recommendation that claimant find another line of work.
Another flare-up of discomfort was noted on December 14,
1990, leading to additional weight restriction.
On December 29 or 30, 1990, after Excel became
self-insured for workers' compensation purposes, claimant
suffered another fork lift accident. Dr. Berg charted
complaints of back strain and muscle spasm, but wrote on
June 19, 1992 that the incident did not result in additional
Page 5
permanent impairment. In April 1991, claimant had yet a
third fork lift injury, which again resulted in muscle spasm
and limited flexibility of the back.
Due to doctor's restrictions, claimant can no longer
work her "bid" job, and is classified as base labor. Wages
are now $0.25 per hour less.
Dr. Berg finds that claimant has some minor impairment
(4-5%), although his diagnosis is a little unclear. In his
deposition testimony, he speaks primarily of strain or soft
tissue injury, while in a letter of October 2, 1990, he
writes that claimant had rather marked degenerative
osteoarthritis and degenerative disc in the back which he
believed precludes her from long term work doing physical
labor. Of the various incidents at Excel, Dr. Berg ascribes
impairment to the October 1989 injury.
However, Dr. Berg was not aware of the three back
incidents in 1985 and 1986. When made aware of these
incidents during his deposition, he agreed that he was
unable to state within a reasonable degree of medical
certainty that claimant's condition arose "strictly" out of
the 1989 injury. This question is interpreted as asking
whether the 1989 incident was the sole cause of impairment.
However, he testified further:
Q. Doctor, if Leila Bix indicated that after
having some pain in 1986 she had not had any
problems until she saw -- or until just before she
saw you in 1989, if that were the situation, would
that lead you to conclude that the October, '89,
incident was a separate incident than anything
previously, than whatever the previous condition
was?
A. It probably would if she wasn't having
ongoing problems. Again, I have no records of
whether -- how much ongoing problems she was
having here, and I have no prior knowledge of a
problem.
But, you know, if she had a period of time
where there was no -- no problems, essentially
well, and at full motion, then I would tend to
state that her problem would be related to October
12th of '89. If during that period prior to that,
she did have problems, ongoing problems, then I'm
not so sure it would be related to that. It might
be related to the prior one.
(Dr. Berg Deposition, pages 37-38).
Dr. Berg also referred claimant to William R. Boulden,
M.D. Dr. Boulden's notes of May 1, 1991 reflected his view
that claimant had continued aggravation to an underlying
degenerative disc disease. Aggressive physical
rehabilitation was recommended. Claimant underwent three
months of relatively intensive physical therapy in 1991,
Page 6
which she believed helped her problem, but did not resolve
it. Dr. Berg was given an incorrect history in that
claimant specifically denied previous back problems prior to
1989. On July 20, 1992, Dr. Boulden wrote that he had had a
chance to read the "full medical records" that he had been
supplied, and opined that the incident of December 30, 1990
caused no new impairment. The record does not disclose
whether those "full medical records" included the 1985 and
1986 injuries, but, in any event, Dr. Boulden does not offer
an opinion that any particular injury did cause permanent
impairment.
Claimant was also treated at the University of Iowa
Hospitals and Clinics upon referral from Dr. Berg. James M.
Weinstein, M.D., is director of the spine diagnostic and
treatment center at that facility. Dr. Weinstein is a board
certified orthopedic surgeon who testified by deposition on
August 3, 1992. Although Dr. Weinstein finds a degree of
physical impairment (3 percent), he was unable to correlate
complaints with examination; that is, he is not sure what is
wrong. Radiographic studies show increased density along
the facet joints at L4-5 and L5-S1 possibly indicating mild
facet degeneration, and in March 1992, showing probable
minimal degenerative disc disease. Dr. Weinstein is of the
view that aggressive physical therapy could be effective and
emphasizes that the sensation of pain while exercising does
not necessary mean that additional damage is being done.
Lifting limits following a rehabilitation evaluation on May
12, 1992, were fifteen pounds not more than four times per
hour and seven pounds repetitively, but it was believed that
these lifting strengths could be significantly improved with
aggressive rehabilitation. In agency experience, the
University of Iowa spine team is inclined more to report
current test measurements rather to than recommend
"permanent" restrictions.
The May 1992 evaluation, the cost of which is
apparently in dispute, was requested and arranged by CNA.
Ms. Bix has also been evaluated by Richard F. Neiman,
M.D., a neurologist. Dr. Neiman wrote on December 19, 1990
that magnetic resonance imaging showed a loss of water
content at L4-5 and L5-S1 and there appeared to be a slight
central disc herniation at L5-S1. Dr. Neiman thereupon
assigned an 11 percent whole body impairment rating. Dr.
Neiman also recommended lifting restrictions of 20-25 pounds
repetitively and up to 35 pounds no more than four times per
hour, and avoidance of excessive flexion, extension and
lateral rotation of the back and against prolonged sitting
and standing. Based on a history of no previous back
difficulty, Dr. Neiman apparently causally linked this
impairment to "the injury." However, claimant concedes and
Dr. Neiman's letter establishes that he was given an
incorrect history in that he was not aware of the 1985 and
1986 injuries.
CONCLUSIONS OF LAW
There is no dispute that claimant sustained an injury
arising out of and in the course of employment on October
Page 7
12, 1989. Excel Corporation disputes the occurrence of such
an injury on December 30, 1990.
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).
The record establishes without contradiction that
claimant was struck by a fork lift truck on December 30,
1990 and, as a result, required medical attention. This
constitutes a compensable injury.
However, the injury did not cause permanent disability.
Drs. Berg and Boulden have both opined that the 1990 injury
did not result in permanent disability. These opinions
stand unchallenged. Claimant has not met her burden of
proof on this issue. She did, however, miss one day of work
on December 31, 1990. Under Iowa Code section 85.32,
compensation for injuries resulting in no permanent
disability begins on the fourth day of disability.
Accordingly, claimant has failed to establish entitlement to
temporary total disability benefits.
The record is unclear to this observer as to precisely
what relief claimant seeks with respect to medical benefits.
However, it appears that only costs of the May 1992
examination at the University of Iowa are at issue. This
evaluation was arranged by CNA Insurance Companies.
Accordingly, even though claimant seeks medical benefits
only in case 981358, fairness dictates that this expense be
paid by CNA. Claimant thus shall take nothing further in
case 981358.
In case 930740, the parties stipulate to the extent of
healing period/temporary total disability, but dispute
whether the injury caused permanent disability. As noted,
claimant bears the burden of proof on the issue. Because
the injury is to the body as a whole, it must be compensated
industrially, if at all.
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
Page 8
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
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
Claimant has a loss of actual earnings and now labors
under medical restrictions. Clearly, her earning capacity is
reduced. It inescapably follows that she has sustained
industrial disability. But, is that industrial disability
attributable to the 1989 injury, or to some other?
Opinions on causation in this record are generally
tainted by the incorrect history given each physician.
However, Dr. Berg is of the view that all disability is
attributable to the October 12, 1989 injury if "she had a
period of time where there was no -- no problems,
Page 9
essentially well, and at full motion." Claimant credibly
testified and has established as fact that she did not
suffer back problems following her recovery from the 1986
injury until October 12, 1989. That she had a full range of
motion in 1988 is fully established by the pre-employment
physical examination conducted by Mary Brooks.
While the determination of causation is essentially
within the domain of expert testimony, expert opinion going
to the mere possibility of such a connection is sufficient
when coupled with nonexpert proof of no preexisting
condition. Bradshaw v. Iowa Methodist Hospital, 251 Iowa
375 101 N.W.2d 167 (Iowa 1960). Given that claimant was
symptom free for several years, but has suffered symptoms
since October 12, 1989, and given further the guidance of
Dr. Berg's testimony, it is held that she has met her burden
of proof in establishing a causal nexus between the injury
of October 12, 1989 and her current industrial disability.
What then is the extent of that disability? Dr. Berg,
the treating physician, has recommended a rather stringent
weight limitation of from 10-25 pounds. The measurements
conducted by the University of Iowa are similar. Dr. Neiman
is more generous in his limitations, but all seem to agree
that bending and twisting should be restricted. Based on a
40 hour week, claimant is reduced by $10.00 in her weekly
wage because she has lost her bid job. Stated as a
percentage of the hourly wage she could be expected to be
earning now, had the injury not occurred, this is 2.9
percent.
Claimant's work experience is in factory work and as a
nurse's aide. It seems clear that she will never be able to
work as a nurse's aide again. It is also clear that there
are many factory jobs for which claimant would otherwise be
suited, which are now beyond her physical capability. Note
that claimant's diminutive stature has previously been
mentioned. While she gives a sturdy appearance and was
formerly athletic (water skiing, dancing and running), it is
also to be expected that her strength would not be unlimited
even in the absence of this injury. Still, she was able to
work as a nurse's aide for years, certainly a physically
demanding occupation. Given claimant's limited education,
it is unrealistic to expect her to qualify for many jobs
other than physical labor in the manufacturing setting. On
the other hand, defendants have been able to keep claimant
employed within her restrictions, a factor strongly tending
to reduce industrial disability.
Considering then these factors in specific and the
record otherwise in general, it is held that Leila Bix has
sustained an industrial disability equivalent to 25 percent
of the body as a whole attributable to her work injury of
October 12, 1989.
Healing period ended on October 24, 1989 when claimant
returned to work, Iowa Code section 85.34(1). Permanency
benefits commenced the next day. The period from March 5
through March 8, 1990 is compensable as temporary total
disability, and runs concurrently with payment of permanency
Page 10
benefits. The two types of benefits are of different type:
temporary total disability benefits act as a substitute for
lost income while permanency benefits compensate for
permanent loss of earning capacity.
ORDER
THEREFORE IT IS ORDERED:
In case number 981357:
The case stands dismissed without prejudice.
Page 11
In case number 981358:
Claimant shall take nothing.
In case number 930740:
Defendants shall pay healing period benefits from
October 13 through October 24, 1989 [one point seven one
four (1.714) weeks], and temporary total disability benefits
from March 5 through March 8, 1990 [point five seven one
(.571) weeks], both at the weekly compensation rate of one
hundred ninety-five and 51/100 dollars ($195.51).
Defendants shall pay unto claimant one hundred
twenty-five (125) weeks of permanent partial disability
benefits at the rate of one hundred ninety-five and 51/100
dollars ($195.51) per week commencing October 25, 1989.
Defendants shall pay the University of Iowa Hospitals
and Clinics bill attributable to the May 1992 evaluation.
Defendants shall have credit for all benefits
voluntarily paid prior to hearing.
All accrued benefits shall be paid in a lump sum
together with statutory interest pursuant to Iowa Code
section 85.30.
Costs are assessed to defendants pursuant to rule 343
IAC 4.33.
Defendants shall file a claim activity report upon
compliance with this decision.
Signed and filed this ____ day of August, 1992.
________________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr H Edwin Detlie
Attorney at Law
114 North Market Street
Ottumwa Iowa 52501
Ms Dorothy L Kelley
Attorney at Law
500 Liberty Building
Des Moines Iowa 50309
Page 12
Mr Stephen W Spencer
Attorney at Law
218 6th Avenue Ste 300
PO Box 9130
Des Moines Iowa 50306
3003 - 2901
Filed August 26, 1992
DAVID R. RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LEILA BIX,
Claimant,
vs.
File Nos. 981357
EXCEL CORPORATION, 930740
981358
Employer,
and
CNA INSURANCE,
Insurance Carrier, A R B I T R A T I O N
D E C I S I O N
LEILA BIX,
Claimant,
vs.
EXCEL CORPORATION,
Employer,
Self-Insured,
Defendants.
___________________________________________________________
3003
Rate stipulation was rejected where rate did not match
stipulation as to gross wages, marital status and
dependants.
2901
Dismissal without prejudice of one petition was accepted at
hearing.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
RONALD E. SISTERN, :
:
Claimant, :
:
vs. : File No. 981364
: 943902
CRANE COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
NATIONAL UNION FIRE INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
This is a proceeding in arbitration brought by
claimant, Ronald Sistern, against his employer, Crane
Company, and the National Union Fire Insurance Company,
insurance carrier, as defendants. Claimant has filed two
petitions alleging injury dates of March 27, 1989 (file No.
943902) and April 25, 1989 (file No. 981364). The files
were consolidated, and a hearing was held before the
undersigned deputy industrial commissioner on October 8,
1991, at Ottumwa, Iowa.
issues
In accordance with the hearing assignment order, the
parties submit the following issues for resolution:
1. Whether claimant received an injury which arose out
of and in the course of his employment;
2. Whether there is a causal relationship between the
alleged injuries and the disabilities;
3. Whether claimant is entitled to temporary total
disability or healing period benefits or permanent partial
or permanent total disability benefits;
4. Whether claimant is entitled to medical benefits as
governed by Iowa Code section 85.27;
5. Equitable apportionment; and,
6. Whether defendants are entitled to credit for
benefits previously paid pursuant to Iowa Code section
85.38(2).
Defendants also maintain that claimant failed to give
Page 2
defendants proper notice of the injury, and failed to file
his petition within the appropriate statue of limitations.
The record in this case consists of claimant's exhibit
1-31; defendants' exhibits A-E; testimony from the claimant;
Gerd Hilbert; Phyllis Scheeler, an industrial nurse; Kermit
Hotopp; and, Kevin Crossett, machine shop foreman.
findings of fact
The undersigned deputy, having reviewed all the
evidence received, finds the following facts:
Claimant, Ronald Sistern, was born on April 10, 1957.
He graduated from high school in 1975. He has undertaken
several post-high school courses, including blueprint
reading and a course which taught claimant how to work a
machine used by the employer.
After several years of working in a factory, in a
discount store, as a dishwasher and as a farmhand, claimant
began to work for the employer, Crane Company. In 1977, he
started out working nights in the core room. After six
months, he moved into the machine shop and worked a drill
press for six months. At that time, he was transferred into
the lathe/automotive department, and worked on seating
lathes, gaining experience on both the vertical and
horizontal lathes. Claimant testified that operating the
lathes required him to lift between 35 to 100 pounds. At
times, he would have to move the lathes, and although a
hoist or fork lift was available to be used for this
purpose, in order to meet his quota, he would sometimes move
the lathes by hand.
In 1988, claimant moved to Indiana and worked for, but
moved back to Washington, Iowa, after five months. When he
got back to Iowa, he worked part-time as a groundsman, and
then reapplied and was hired back at Crane Company.
Claimant testified that in 1987, he was experiencing
back pains and upon the advice of his family physician,
Dennis Shimp, D.O., claimant underwent a CT scan and EMG.
Dr. Shimp's records indicate that claimant had complained of
dorsal and lumbar spine pain in 1986 and 1987 (Claimant's
Exhibit 11, pages 4-5). On March 28, 1989, claimant
returned to Dr. Shimp complaining of an onset of lumbar pain
while tightening a chuck at work. The notes indicate that
claimant stated the pain was radiating into both legs. It
is noted that claimant had denied pain radiation into the
legs in the previous years (Cl. Ex. 11, p. 5). Claimant was
Page 3
referred to William Pontarelli, M.D., an orthopedic
specialist, whom he saw on April 6, 1989. Dr. Pontarelli's
notes indicate:
Ron Sistern is having frequent recurrent bouts
of disabling back pain radiating in the L5
dermatone distribution to especially the right
leg....He had been previously diagnosed before
with desires of surgical correction for this
problem. Because of the recurrent disabling
nature of his pain, I feel that it is indicated to
do a Gill decompression and fusion.
(Cl. Ex. 12, p. 3)
Claimant underwent surgery on April 25, 1989, and
underwent physical therapy through November of 1989 (Cl. Ex.
13, pp. 1-78; Cl. Ex. 14, pp. 1-7).
In February of 1990, Dr. Pontarelli made the following
assessment:
At the present time, based on the American
Academy of Orthopedic Surgeon's Guide, Ron would
qualify for a 15% whole body impairment.
My feelings as far as return to work for Ron
are that he should be careful in his choice of
employment, particularly when it comes to
repetitive heavy lifting or lifting with a twisted
back motion. He was doing so well that he was
released to return to work without restrictions on
11/14/89. I don't feel that Ron had a congenital
problem. I feel that spondylolisis with
spondylolisthesis is acquired through a traumatic
event, either a single sudden event such as a
fall, impact type of trauma, a collision in a car
or sporting event or from repetitive build up
internal stresses, a stress fracture. I also felt
in a situation such as Ron's where he is required
to do repetitive lifting up to 300 pounds, this is
definitely a situation where work had aggravated a
preexisting condition.
(Cl. Ex. 16, p. 1)
Dr. Pontarelli opined that the 15 percent whole body
impairment was from a work-related aggravation and
subsequent spinal fusion. However, in his deposition taken
in July of 1991, Dr. Pontarelli was of the opinion that 5
percent of the 15 percent rating would be attributable to
the spondylolisthesis, a condition claimant had prior to
1989. As a result of the surgery that was performed in
1989, Dr. Pontarelli increased the rating to 15 percent
impairment to the body as a whole. Dr. Pontarelli was also
of the opinion that the surgery was necessary to alleviate
the pain caused by the aggravation of claimant's condition
by work activities (Cl. Ex. 22, pp. 22-27).
analysis and conclusions of law
Page 4
The first issue to be addressed is whether claimant
received injuries on May 27, 1989 and April 25, 1989, which
arose out of and in the course of his employment.
An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).
Claimant has the burden of proving by a preponderance
of the evidence that he received injuries which arose out of
and in the course of his employment. McDowell v. Town of
Clarksville, 241 N.W.2d 904 (Iowa 1976).
The injury must both arise out of and be in the course
of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246
Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406
of the Iowa Report. See also Sister Mary Benedict v. St.
Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen
v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
The words "out of" refer to the cause or source of the
injury. Crowe, 246 Iowa 402, 68 N.W.2d 63.
The words "in the course of" refer to the time and
place and circumstances of the injury. McClure v. Union
et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa
402, 68 N.W.2d 63.
"An injury occurs in the course of the employment when
it is within the period of employment at a place the
employee may reasonably be, and while he is doing his work
or something incidental to it." Cedar Rapids Comm. Sch.
Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188
N.W.2d 283; Musselman v. Central Telephone Co., 261 Iowa
352, 154 N.W.2d 128 (1967).
Claimant originally filed a petition stating an injury
date of March 27, 1989. He later filed a second petition
alleging a cumulative injury date of April 25, 1989. The
latter date is the date he entered the hospital for back
surgery.
Gerd Hilbert, an employee of Crane Company, testified
at the hearing under subpoena. He was working on a machine
next to the claimant on March 27, 1989. Mr. Hilbert
testified that he recalled that on that date, claimant asked
for help taking a part out of a machine and that the
claimant looked as if he was in pain. Mr. Hilbert also
testified that his best recollection of the incident was
that claimant told him that he had twisted his back while
placing a part on a pallet. The witness indicated that
claimant worked for ten minutes after the incident, and then
went home.
The medical records from Dr. Shimp also indicate that
claimant was injured on March 27, 1989. The evidence
indicates that claimant was performing his required job
duties on his regular shift in an appropriate manner. As a
result, it is found that claimant sustained an injury which
Page 5
arose out of and in the course of his employment on March
27, 1989.
In so finding, the undersigned has determined that it
was unnecessary for claimant to file a second petition
alleging a cumulative injury which manifested in April of
1989. As a result, file No. 981364 is dismissed.
Defendants assert two affirmative defenses, lack of
notice of the injury and failure to file an original notice
and petition within the appropriate time frame.
Iowa Code section 85.23 provides, in pertinent part:
Unless the employer or the employer's
representative shall have actual knowledge of the
occurrence of an injury received within ninety
days from the date of the occurrence of the
injury, or unless the employee or someone on the
employee's behalf or a dependent or someone on the
dependent's behalf shall give notice thereof to
the employer within ninety days from the date of
the occurrence of the injury, no compensation
shall be allowed.
The evidence clearly reflects that the claimant
notified his supervisor of the March 27, 1989 incident (Cl.
Ex. 1). Defendants' argument fails.
Defendants also argue that claimant failed to file his
original notice and petition within the appropriate time
frame.
Iowa Code section 85.27 states, in relevant part:
1. An original proceeding for benefits under
this chapter or chapter 85A, 85B, or 86, shall not
be maintained in any contested case unless the
proceeding is commenced within two years from the
date of the occurrence of the injury for which
benefits are paid under section 86.13, within
three years from the date of the last payment of
weekly compensation benefits.
Claimant's injury occurred on March 27, 1989. His
original notice and petition was filed on June 25, 1990,
well within the two year provision which is applicable to
this claim, as claimant has not been paid any weekly
benefits.
The next issue to be addressed is whether claimant has
sustained his burden of proving by a preponderance of the
evidence that the injury of March 27, 1989 is causally
related to the disability on which he now bases is claim.
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 probably rather than merely possible.
Blacksmith v. All American, Inc., 290 N.W.2d 348, 354 (Iowa
Page 6
1980).
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).
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal
connection, such testimony may be coupled with nonexpert
testimony to show causation and be sufficient to sustain an
award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146
N.W.2d 911, 915 (1966). Such evidence does not, however,
compel an award as a matter of law. Anderson, 217 N.W.2d
531, 536. To establish compensability, the injury need only
be a significant factor, not be the only factor causing the
claimed disability. Blacksmith v. All-Amnerican, Inc., 290
N.W.2d 348, 354 (Iowa 1980).
While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, the mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900,
908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a
preexisting condition or disability that is aggravated,
accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815
(1962).
When an aggravation occurs in the performance of an em
ployer's work and a causal connection is established,
claimant may recover to the extent of the impairment.
Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106
N.W.2d 591, 595 (1960).
Defendants argue that claimant has not met his burden
of proof. Their argument stems from the fact that claimant
has had preexisting back problems since the 1970's, when
claimant was involved in an automobile accident and
sustained a broken back. More specifically, defendants
argue that claimant has had ongoing back problems since
August of 1987, and has made accommodations in his job so
that he could perform his work without pain. Dr.
Pontarelli, in his deposition, indicated that claimant's
back condition had not changed from 1987 to April 1989. Dr.
Pontarelli was of the opinion that from 1987 until the time
of surgery, claimant had decided to undergo conservative
treatment and although had been advised of the benefits of
surgery, had elected to forego surgical intervention. Dr.
Pontarelli stated that it was his impression that claimant
could no longer tolerate the pain and elected to undergo
Page 7
surgery in April of 1989. Apparently, Dr. Pontarelli was
unaware of any specific episode which led to claimant's
decision to undergo surgery (Cl. Ex. 22).
Claimant argues that even though claimant had a
preexisting condition which affected his lower back, he was
able to perform his work from August of 1987 until March 27,
1989, with only one disruption in his work schedule.
The greater weight of the evidence indicates that
claimant did sustain an injury on March 27, 1989, which
caused him to experience a greater amount of pain in his low
back which eventually necessitated surgery. As a result, it
is found that claimant's current disability is causally
related to the work-related injury.
The next issue to be addressed is whether claimant is
entitled to weekly compensation for temporary total
disability or healing period benefits and permanent partial
disability benefits. Dr. Pontarelli assessed claimant with
a 15 percent functional impairment, and allocated 5 percent
of claimant's impairment to his preexisting condition of
spondylolisthesis. The remaining 10 percent impairment
stems from the surgery. As claimant's disability has been
found to be permanent, claimant is entitled to healing
period benefits for the time he was off of work and
recovering from the injury. The prehearing report indicates
that both parties agree claimant was off work March 27, 1989
through March 31, 1989, and April 24, 1989 through November
14, 1989. Claimant is awarded healing period benefits for
this time frame.
As claimant has sustained a permanent disability to his
back, it is necessary to analyze his industrial disability.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
Page 8
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
At the time of the hearing, claimant was 34 years of
age. He is a high school graduate, and has become a skilled
laborer. His work requires him to lift between 20 and 300
pounds, although he had devices available to him to assist
him in lifting the heavier weights.
His treating physician, Dr. Pontarelli, has assessed a
15 percent functional impairment rating, but has imposed no
work restrictions. Claimant voluntarily bid to a lathe job
with a lower pay rate in order to obtain lighter lifting
requirements. Claimant stated that his nonwork-related
activities are essentially the same as prior to the surgery,
although claimant no longer plays volleyball.
Claimant appears to be a highly motivated worker, and
consistently accepts overtime work made available to him.
The employer has maintained claimant as an employee.
After considering all the factors that comprise an
industrial disability, it is found that claimant has
sustained a 15 percent loss of earning capacity.
The next issue to be addressed is whether claimant is
entitled to medical benefits pursuant to Iowa Code section
85.27.
The Code states, in relevant part:
The employer, for all injuries compensable
under this chapter or chapter 85A, shall furnish
reasonable surgical, medical, dental, osteopathic,
Page 9
chiropractic, podiatric, physical rehabilitation,
nursing, ambulance and hospital services and
supplies therefor and shall allow reasonably
necessary transportation expenses incurred for
such services. The employer shall also furnish
reasonable and necessary crutches, artificial
members and appliances but shall not be required
to furnish more than one set of permanent
prosthetic devices.
Claimant's injury is compensable, and the defendants
are responsible for payment of the medical bills.
Defendants also request credit for benefits paid as
provided for under Iowa Code section 85.38(2):
2. Credit for benefits paid under group plans.
In the event the disabled employee shall receive
any benefits, including medical, surgical or
hospital benefits, under any group plan covering
nonoccupational disabilities contributed to wholly
or partially by the employer, which benefits
should not have been paid or payable if any rights
of recovery existed under this chapter, chapter
85A or chapter 85B, then such amounts so paid to
said employee from any such group plan shall be
credited to or against any compensation payments,
including medical, surgical or hospital, made or
be made under this chapter, chapter 85A or chapter
85B. Such amounts so credited shall be deducted
from the payments made under these chapters.
Defendants are allowed credit under this section as
long as they contributed to the group plan.
The parties stipulated that on May 27, 1989, claimant
was single with one dependent. His gross weekly earnings
were $381.94 per week. According to the Guide to Iowa
Workers' Compensation Claim Handling (July 1988), claimant's
workers' compensation rate is $237.09 per week.
Page 10
order
THEREFORE, it is ordered:
That defendants shall pay claimant healing period
benefits at the rate of two hundred thirty-seven and 09/100
dollars ($237.09) during the time frames stipulated to in
the prehearing report.
That defendants shall pay claimant permanent partial
disability payments totaling seventy-five (75) weeks at the
rate of two hundred thirty-seven and 09/100 dollars
($237.09) beginning November 15, 1989.
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 reimburse claimant for all
medical benefits paid for by claimant, as provided for under
Iowa Code section 85.27.
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 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 November, 1991.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Bruce L Walker
Attorney at Law
321 E Market
P O Box 2150
Iowa City IA 52240
Mr James E Shipman
Attorney at Law
1200 MNB Bldg
Cedar Rapids IA 52401
5-1803
Filed November 26, 1991
Patricia J. Lantz
before the iowa industrial commissioner
____________________________________________________________
:
RONALD E. SISTERN, :
:
Claimant, :
:
vs. : File No. 981364
: 943902
CRANE COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
NATIONAL UNION FIRE INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
Claimant sustained a work-related aggravation to a
preexisting back condition.
He was given a 15% functional impairment rating, and no work
restrictions. Claimant was released to return to his old
job, but bid into a lower paying position that required less
lifting.
Claimant awarded 15% industrial disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
KAREN S. PETERSON,
Claimant,
vs.
File No. 981365
LLOYD R. WARREN d/b/a WARREN,
MASONRY,
A P P E A L
Employer,
D E C I S I O N
and
UNITED FIRE & CASUALTY COMPANY
OF CEDAR RAPIDS, IOWA,
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
Those portions of the proposed agency decision pertaining to
issues not raised on appeal are adopted as a part of this
appeal decision. The issues raised on appeal are:
I. The opinion of the Claimant's expert, Dr. Kevin
Whitford, was not supported by the evidence and should not
have been the basis for the award in this case.
II. There was no factual foundation for the Deputy
Industrial Commissioner's conclusion that the Claimant's
decision to continue working, rather than seek medical
treatment, was a basis for compensation in this case.
III. The Deputy Industrial Commissioner erred as a matter
of law and fact in concluding that the opinion of the
Claimant's expert (as "treating" physician) should be given
greater weight than a physician called by the Defendants.
IV. The Deputy Industrial Commissioner erred as a matter of
law in allowing hearsay testimony and hearsay within hearsay
testimony on the basis that hearsay testimony is admissible.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed March 24, 1992 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
Page 2
brackets ([ ]) indicate language that is in addition to the
language of the proposed agency decision.
*****
It is found that claimant is the surviving spouse of Raymond
Peterson who shall hereinafter be referred to as Ray.
Ray worked for Bud Warren for approximately 29 years before
his death. During the last 15 years he was a brick and
block mason. For 15 years before that, he was a mason
tender. On December 19, 1990, Ray collapsed and died while
working laying a brick wall with Warren and other employees
on a residential house project in Ames, Iowa. The following
is specifically found with reference to the specific facts
and circumstances leading up to his death:
Shortly after 1:00 p.m. on December 19, 1990, Kevin
Whitford, M.D., a board certified specialist in internal
medicine at the McFarland Clinic in Ames, Iowa, was on call
at the Mary Greeley Medical Center emergency room in Ames,
Iowa, when the paramedics, in response to a 911 call,
brought to the emergency room a heart attack patient by the
name of Raymond L. Peterson.
At the time of his death, Ray was 50 years of age, weighed
220-240 pounds with a height less than 6 feet. Ray's wife
was employed and usually left home at 4:30 a.m. each
morning. Ray smoked 3-4 packs of cigarettes per day, drank
3-4 cans of Coke per day at work and 2-3 cans at night.
When working, he ate a cold meal consisting of a meat
sandwich, cupcakes, and a soft drink during a half hour
lunch break. In the evening, Ray would eat a heaping plate
of meat, potatoes, vegetable, bread, butter and dessert.
For about a year before his death, Ray had been consuming 45
extra-strength Tylenol tablets several times a day. This
was in addition to the regular consumption of Rolaid
tablets. Ray was the type of person who never went to a
doctor, dentist or hospital. Ray had a fear of heights. In
the days before his death he was assigned to work in Ames
and used a commuter route from his residence in Nevada, Iowa
that avoided traffic congestion. During his employment with
Warren, Ray was a good, conscientious employee and was
always on time for work.
During the week of December 9, 1990, Ray worked laying brick
at a North Grand Mall building in Ames, Iowa. At this job,
he helped construct a plywood and plastic enclosed shelter.
He was lifting and handling one-half inch thick 4 x 4 x 8
feet pieces of plywood. Thereafter, he worked in the
enclosure heated by a kerosene-fired heater. The outside
temperatures ranged from 20-40 degrees Fahrenheit.
On Sunday, December 16, 1990, Ray suffered severe chest
pains radiating into his arms and numbness in one of his
hands after helping his wife clean the basement. This work
required carrying bags of material up the basement steps.
Ray also complained of pressure under his rib cage and
consumed two rolls of Rolaid tablets and requested Alka
Seltzer tablets. Ray first thought he was having a heart
attack but later decided it was just gas. On Monday,
Page 3
December 17, 1990, the weather was so inclement that Warren
cancelled work.
On Tuesday, December 18, 1990, Ray picked up a fellow
employee in the morning and drove to his work site that day
located at 3112 Maplewood Road in northwest Ames, Iowa using
his usual noncongested travel route. Upon arrival, Ray
helped erect a plywood and paper-roofed shelter adjacent to
a residential home where Warren and his crew was to erect a
brick wall. The enclosure was heated by use of an open flame
from a propane tank. After building the enclosure, claimant
worked the rest of the day laying brick. The temperature
that day was a few degrees below freezing. Inside the
enclosure however the temperature ranged from 50-60 degrees
Fahrenheit. The enclosure was fairly tight to keep out the
cold as a warm temperature is needed to properly set up the
mortar. The door way consisted of a flap of the paper
substance used and this was constructed in a manner to close
after entry and exit. Tenders regularly traveled through
this door way to bring in brick and mortar.
Initially, the area next to the foundation inside the
enclosure had to be cleaned using a hammer to chop away
frozen materials. Later on, Ray and Warren began laying
brick from opposite sides. The bricks and mortar was
provided to each of these men by their tenders. Brick
laying ended at 3:30 and after striking (removing excess
mortar) the brick, Ray left work and returned home.
Sometime during the day Ray told Warren of the Sunday chest
pain and that he first thought he had suffered a heart
attack but later concluded it was only gas. That evening,
Ray again complained of chest, arm and hand pain. He ate
only soup for dinner and complained of exhaustion.
The following day, Wednesday, December 19, 1990, Ray again
picked up his fellow employee and commuted to Ames in the
morning the usual way arriving at the work site at
approximately 8:00 a.m. That day Ray was dressed in his
warmest clothes and wore heavy, insulated rubber boots, a
heavy coat and an insulated jacket. At approximately 9:00
a.m., Ray and Warren again started laying brick. The wall
was around 4 - 4 1/2 feet high from the work the day before,
and a 3 - 4 foot scaffold was erected to bring the wall up
to the eaves or over 9 feet from the ground. At one time
Ray complained of a kink is his neck while working under the
roof eaves of the house. The employee that Ray had been
commuting with began to experience flu-like symptoms and
Warren took him home.
At approximately noon, the crew broke for lunch. Ray and
another employee went to the basement of the home which was
heated by a furnace to have lunch. Ray only ate a part of a
sandwich and took a pain pill he had obtained a few days
earlier from his son. Ray began to complain he was hot and
that he was having trouble breathing. Ray went outdoors and
after Warren returned to the site, Ray sat in his truck for
a short time. After the usual half-hour lunch break, Ray
and the crew returned to the shelter. After obtaining a
Page 4
striker tool from his toolbox, Ray attempted to climb the
short ladder to the scaffold and before he reached the top,
he collapsed on the scaffold. Nearby persons and eventually
rescue personnel administered CPR and emergency procedures
and transported Ray to the Greeley Medical Center. At the
hospital efforts to revive Ray continued under the direction
of Dr. Whitford. These efforts failed and Ray was
pronounced dead at 1:35 p.m. An autopsy was requested but
the family refused.
[Dr. Whitford offered the opinion that Raymond's heart
attack was caused by working in extremely cold conditions
and involving heavy physical exertion. Dr. Whitford opined
that Raymond's heart attack and death was caused by his work
activity.]
*****
***** Paul From, M.D., does not causally relate Ray's heart
attack to his work as a mason at the time of death. Dr.
From based his opinion primarily on the fact that despite a
weakened, diseased heart, Ray was conditioned or acclimated
to that level of activity and such work would not be
unusually stressful on his heart. *****
*****
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed March 24, 1992 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.
I. Claimant is seeking benefits as a result of the death
of her husband. Such benefits are available under Chapter
85, Code of Iowa because a work injury is defined in the
statute to include death as a result of injury. Iowa Code
section 85.61(5)(a). Death from an occupational disease is
likewise compensable under chapter 85A of the Code. Iowa
Code section 85A.12. However, an employer is liable for
death benefits only if claimant establishes by a
preponderance of the evidence that the death arose out of
and in the course of employment. The words "out of" refer
to the cause or source of the injury. The words "in the
course of" refer to the time and place and circumstances of
the injury. See generally, Cedar Rapids Community 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, and 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.
The question of causal connection is essentially within the
domain of expert testimony. Bradshsaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion
Page 5
of experts need not be couched in definite, positive or
unequivocal language and the expert opinion may be accepted
or rejected, in whole or in part, by the trier of fact.
Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). 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 v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965).
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal
connection, such testimony may be coupled with nonexpert
testimony to show causation and be sufficient to sustain an
award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146
N.W.2d 911, 915 (1966). Such evidence does not, however,
compel an award as a matter of law. Anderson v. Oscar Meyer
& Co., 217 N.W.2d 531, 536 (1974). To establish
compensability, the injury need only be a significant
factor, not be the only factor causing the claimed
disability. Blacksmith v. All-American Inc., 290 N.W.2d
348, 354 (Iowa 1980). In the case of a preexisting
condition, an employee is not entitled to recover for the
results of a preexisting injury or disease but can recover
for an aggravation thereof which resulted in the disability
found to exist. Olson v. Goodyear Service Stores, 255 Iowa
1112, 125 N.W.2d 251 (1963).
In work injuries involving the heart, Iowa claimants with
preexisting circulatory or heart conditions are permitted,
upon proper medical proof, to recover worker's compensation
benefits only when the employment contributes something
substantial to increase the risk of injury or death. The
employment contribution must take the form of an exertion
greater than nonemployment life. Sondag, 220 N.W.2d 903
(Iowa 1974). The comparison, however, is not with the
employee's usual exertion in his employment but with
exertions of normal nonemployment life of this or any other
person. Id. ***** Swalwell v. William Knudson and Son,
Inc., II Iowa Industrial Commissioner Report 385 (Appeal
Decision 1982). The Sondag rule is favored by Professor
Larson in his treatise of workers' compensation. See 1A
Larson, Workmen's Compensation Law, section 38.83 at 7-172.
According to Professor Larson, the causative test is a two
part analysis. First, there is a medical causation test in
which the medical experts must be relied upon to causally
relate the alleged stress (emotional or physical) to the
heart injury. Second, there is a legal causation test to
determine if the medically related stress is more than the
stress of everyday nonemployment life.
*****
[Claimant bears the burden of proof to show that the heart
attack and resulting death of Raymond Peterson arose out of
Raymond's employment. To meet the "medical test", it must
be shown that the fatal heart attack was caused by work
activity. Claimant has offered the testimony of Dr.
Page 6
Whitford in this regard.
The work conditions Raymond worked under on the day of his
fatal heart attack were not extreme. Although the weather
was cold, he worked in a protected environment. In
addition, his work activity was not exceptionally strenuous.
A brick tender brought the bricks to his work station,
requiring Ray only to lay the bricks. Significantly, just
prior to the onset of the heart attack, Raymond was not
engaging in strenuous activity, but rather had just finished
lunch and was in the process of returning to work and
climbing a short ladder.
Dr. Whitford's opinion that Raymond's fatal heart attack was
caused by his work activity was based on the assumption that
Raymond was engaged in heavy physical labor and working in
extremely cold conditions. As noted above, both assumptions
were incorrect and thus affect the weight to be given to the
medical conclusion. Claimant has failed to meet the
"medical test".
Even if the opinion of Dr. Whitford is accepted, however,
claimant has also failed to meet the "legal test". Under
this prong of the Simbro case, claimant must show that the
work activity allegedly causing the fatal heart attack was
work exertion greater than that experienced in nonemployment
life. The work conditions under which the fatal heart
attack occurred do not rise to this level. Claimant has
also failed to satisfy the "legal test".
In addition, other evidence indicates that the heart attack
was caused by other than work factors. Raymond not only had
a preexisting heart condition, but also his heavy intake of
Tylenol, Rolaids, Coca Cola, and his smoking 2 to 4 packs of
cigarettes per day could as easily account for his heart
attack as work exertion. Also, his age and his weight of
220 to 240 pounds with a height under six feet are
additional heart risk factors more likely to account for his
heart attack than his work exertion. These facts, coupled
with the evidence that he had experienced the onset of heart
attacks two times in the previous few days at home, lead to
the conclusion that his fatal heart attack was caused by
nonwork factors. Claimant has failed to carry her burden to
show that the fatal heart attack was caused by work exertion
greater than that found in nonemployment activities.]
WHEREFORE, the decision of the deputy is reversed.
ORDER
THEREFORE, it is ordered:
That claimant shall take nothing from these proceedings.
That defendants shall pay the costs of this matter including
the transcription of the hearing.
Signed and filed this ____ day of June, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Page 7
Copies To:
Mr. Dayton Countryman
Attorney at Law
P.O. Box 28
Nevada, Iowa 50201-0028
Mr. Joseph M. Isenberg
Attorney at Law
116 Kellogg Ave.
Ames, Iowa 50010
Mr. Thomas Henderson
Attorney at Law
317 Sixth Ave., Ste 1200
Des Moines, Iowa 50309-4110
2202
Filed June 30, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
KAREN S. PETERSON,
Claimant,
vs.
File No. 981365
LLOYD R. WARREN d/b/a WARREN,
MASONRY,
A P P E A L
Employer,
D E C I S I O N
and
UNITED FIRE & CASUALTY COMPANY
OF CEDAR RAPIDS, IOWA,
Insurance Carrier,
Defendants.
____________________________________________________________
2202
Decedent's death by heart attack found not to be work
related where worker had angina symptoms on two nonwork days
just prior to fatal attack, and where worker was overweight,
a heavy smoker, had a history of heart trouble, consumed
extraordinary quantities of Tylenol, Rolaids and Coca-Cola,
and where worker had just returned from lunch break and
immediately experienced attack before beginning work again.
Decedent's work of laying brick where a brick tender brought
the bricks to him, and working in a heated environment
during winter, found not be exertion greater than normal
nonemployment activities. Decedent's work did not meet the
"legal test."
The medical opinion which causally connected decedent's
fatal heart attack to his work was based on an assumption of
heavy exertion in a cold environment. As both assumptions
were shown to be incorrect, the "medical test" was not met.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
KAREN S. PETERSON, :
:
Claimant, :
:
vs. :
: File No. 981365
LLOYD R. WARREN d/b/a WARREN :
MASONRY, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
UNITED FIRE & CASUALTY :
COMPANY OF CEDAR RAPIDS, IOWA,:
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Karen
Peterson, claimant, against Lloyd R. Warren d/b/a Warren
Masonry, employer (hereinafter referred to as Warren), and
United Fire & Casualty Company, insurance carrier, defen
dants, for workers' compensation benefits as a result of an
alleged work-related death of Raymond Peterson on December
19, 1990. On February 19, 1992, a hearing was held on
claimant's petition and the matter was considered fully sub
mitted at the close of this hearing.
The parties have submitted a prehearing 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 employee-employer relationship existed between
Raymond Peterson and Warren at the time of the alleged
injury.
2. At the time of injury, Raymond Peterson's gross
rate of weekly compensation was $313.00. He was married.
The parties had stipulated that claimant is entitled to only
one exemption. This stipulation cannot be honored as it
would be contrary to Iowa Code section 85.42(1) which con
clusively presumes a surviving spouse as wholly dependant.
Claimant is entitled to two exemptions, one for her deceased
husband and one for herself. Therefore, claimant's weekly
rate of compensation is $203.13 according to the Industrial
Page 2
Commissioner's published rate booklet for FY 91.
3. The medical bills submitted by claimant at the
hearing are fair and reasonable and causally connected to
the medical condition upon which the claim herein is based,
but that the issue of their causal connection to a
work-related death remains an issue to be decided herein.
At hearing, claimant requested that this deputy commis
sioner take official notice of several items. This request
is denied for the reason that: 1) it is untimely as defen
dants had no notice of this request prior to hearing; and,
2) the matters asked to be noticed were either conclusions
of law or controversial questions of fact and not a proper
subject for official notice. In any event, the failure to
take notice of these matters had no affect upon the outcome
of this decision.
ISSUES
The parties submitted the following issues for determi
nation in this proceeding:
I. Whether Raymond Peterson's death arose out of and
in the course of his employment; and,
II. The extent of claimant's entitlement to death and
medical benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
A credibility finding is necessary to this decision as
defendants placed claimant's credibility at issue during
cross-examination as to the circumstances and events leading
up to December 19, 1990, and her account of a taped inter
view of her husband's employer, Lloyd (Bud) Warren, con
ducted by her attorneys shortly after her husband's death.
From her demeanor while testifying, claimant is found very
credible.
It is found that claimant is the surviving spouse of
Raymond Peterson who shall hereinafter be referred to as
Ray.
Ray worked for Bud Warren for approximately 29 years
before his death. During the last 15 years he was a brick
and block mason. For 15 years before that, he was a mason
tender. On December 19, 1990, Ray collapsed and died while
working laying a brick wall with Warren and other employees
on a residential house project in Ames, Iowa. The following
is specifically found with reference to the specific facts
and circumstances leading up to his death:
Shortly after 1:00 p.m. on December 19, 1990, Kevin
Whitford, M.D., a board certified specialist in internal
medicine at the McFarland Clinic in Ames, Iowa, was on call
Page 3
at the Mary Greeley Medical Center emergency room in Ames,
Iowa, when the paramedics, in response to a 911 call,
brought to the emergency room a heart attack patient by the
name of Raymond L. Peterson.
At the time of his death, Ray was 50 years of age,
weighed 220-240 pounds with a height less than 6 feet.
Ray's wife was employed and usually left home at 4:30 a.m.
each morning. Ray smoked 3-4 packs of cigarettes per day,
drank 3-4 cans of Coke per day at work and 2-3 cans at
night. When working, he ate a cold meal consisting of a
meat sandwich, cupcakes, and a soft drink during a half hour
lunch break. In the evening, Ray would eat a heaping plate
of meat, potatoes, vegetable, bread, butter and dessert.
For about a year before his death, Ray had been consuming 45
extra-strength Tylenol tablets several times a day. This
was in addition to the regular consumption of Rolaid
tablets. Ray was the type of person who never went to a
doctor, dentist or hospital. Ray had a fear of heights. In
the days before his death he was assigned to work in Ames
and used a commuter route from his residence in Nevada, Iowa
that avoided traffic congestion. During his employment with
Warren, Ray was a good, conscientious employee and was
always on time for work.
During the week of December 9, 1990, Ray worked laying
brick at a North Grand Mall building in Ames, Iowa. At this
job, he helped construct a plywood and plastic enclosed
shelter. He was lifting and handling one-half inch thick
4 x 4 x 8 feet pieces of plywood. Thereafter, he worked in
the enclosure heated by a kerosene-fired heater. The out
side temperatures ranged from 20-40 degrees Fahrenheit.
On Sunday, December 16, 1990, Ray suffered severe chest
pains radiating into this arms and numbness in one of his
hands after helping his wife clean the basement. This work
required carrying bags of material up the basement steps.
Ray also complained of pressure under his rib cage and con
sumed two rolls of Rolaid tablets and requested Alka-Seltzer
Page 4
tablets. Ray first thought he was having a heart attack but
later decided it was just gas. On Monday, December 17,
1990, the weather was so inclement that Warren cancelled
work.
On Tuesday, December 18, 1990, Ray picked up a fellow
employee in the morning and drove to his work site that day
located at 3112 Maplewood Road in northwest Ames, Iowa using
his usual non-congested travel route. Upon arrival, Ray
helped erect a plywood and paper-roofed shelter adjacent to
a residential home where Warren and his crew was to erect a
brick wall. The enclosure was heated by use of an open flame
from a propane tank. After building the enclosure, claimant
worked the rest of the day laying brick. The temperature
that day was a few degrees below freezing. Inside the
enclosure however the temperature ranged from 50-60 degrees
Fahrenheit. The enclosure was fairly tight to keep out the
cold as a warm temperature is needed to properly set up the
mortar. The door way consisted of a flap of the paper sub
stance used and this was constructed in a manner to close
after entry and exit. Tenders regularly traveled through
this door way to bring in brick and mortar.
Initially, the area next to the foundation inside the
enclosure had to be cleaned using a hammer to chop away
frozen materials. Later on, Ray and Warren began laying
brick from opposite sides. The bricks and mortar was pro
vided to each of these men by their tenders. Brick laying
ended at 3:30 and after striking (removing excess mortar)
the brick, Ray left work and returned home. Sometime during
the day Ray told Warren of the Sunday chest pain and that he
first thought he had suffered a heart attack but later con
cluded it was only gas. That evening, Ray again complained
of chest, arm and hand pain. He ate only soup for dinner
and complained of exhaustion.
The following day, Wednesday, December 19, 1990, Ray
again picked up his fellow employee and commuted to Ames in
the morning the usual way arriving at the work site at
approximately 8:00 a.m. That day Ray was dressed in his
warmest clothes and wore heavy, insulated rubber boots, a
heavy coat and an insulated jacket. At approximately 9:00
a.m., Ray and Warren again started laying brick. The wall
was around 4 - 4 1/2 feet high from the work the day before,
and a 3 - 4 foot scaffold was erected to bring the wall up
to the eaves or over 9 feet from the ground. At one time
Ray complained of a kink is his neck while working under the
roof eaves of the house. The employee that Ray had been
commuting with began to experience flu-like symptoms and
Warren took him home.
At approximately noon, the crew broke for lunch. Ray
and another employee went to the basement of the home which
was heated by a furnace to have lunch. Ray only ate a part
of a sandwich and took a pain pill he had obtained a few
days earlier from his son. Ray began to complain he was hot
and that he was having trouble breathing. Ray went outdoors
and after Warren returned to the site, Ray sat in his truck
Page 5
for a short time. After the usual half-hour lunch break,
Ray and the crew returned to the shelter. After obtaining a
striker tool from his toolbox, Ray attempted to climb the
short ladder to the scaffold and before he reached the top,
he collapsed on the scaffold. Nearby persons and eventually
rescue personnel administered CPR and emergency procedures
and transported Ray to the Greeley Medical Center. At the
hospital efforts to revive Ray continued under the direction
of Dr. Whitford. These efforts failed and Ray was pro
nounced dead at 1:35 p.m. An autopsy was requested but the
family refused.
From the evidence presented, it is found that Ray's
death on December 19, 1990, arose out of and in the course
of his employment with Warren Masonry. Specifically, the
physical work Ray performed on the day of his death was a
probable contributing cause of his death. The death was due
to sudden cardiac arrest or heart attack. This finding is
based upon the views of the treating hospital physician at
the time of death, Dr. Whitford, as expressed in his deposi
tion testimony. Although Ray had many contributing risk
factors such as heavy smoking, obesity, physically uncondi
tioned, a family history suggestive of heart disease, a poor
diet and probable prior existing arteriosclerosis
(accumulating of deposits in the arteries), his work activ
ity that day was one of the contributing factors leading to
the heart incident and death.
Dr. Whitford's opinions were challenged in several
respects by defendants. First, there was a challenge that
Dr. Whitford was unaware that Ray's work was not physically
demanding. However, it is clear from the deposition that the
doctor was fully aware of the physical tasks Ray was doing
on the day of his death. Also, the doctor admitted that in
many ways, what Ray was doing was not more stressful than
many tasks he could have performed at home such as painting
or shoveling sidewalks. But again, this did not dissuade
the doctor from his views.
Defendants primarily relied upon the contrary views of
another board certified internist, Paul From, M.D. Dr. From
does not causally relate Ray's heart attack to his work as a
mason at the time of death. Dr. From based his opinion pri
marily on the fact that despite a weakened, diseased heart,
Ray was conditioned or acclimated to that level of activity
and such work would not be unusually stressful on his heart.
This opinion was not given the same weight as the opinion of
Dr. Whitford. Although both physicians have high qualifica
tions, Dr. From admitted in his deposition testimony that he
testifies quite regularly in workers' compensation cases and
appears quite interested in doing so in the future. The
undersigned believes that the views of such a professional
witness cannot be given the same weight over another physi
cian of equal stature who does not appear as equally anxious
to testify in subsequent proceedings. Finally, although his
contact with Ray was brief, Dr. Whitford is the only expert
to actually treat Ray and clinically observed his overall
Page 6
condition.
The finding of a work-related heart attack is also
based upon a specific finding that Ray's work as a brick
layer on the day of his death was physical exertion greater
than the normal non-employment life of Ray or any other
person. Although Ray could occasionally work harder at home
than at work, generally the laying of brick, even if a ten
der provides the brick and mortar, over a full day with only
a few breaks in activity is generally more strenous than
everyday non-employment life.
The finding of a work-related death was not based on
the evidence suggesting that carbon monoxide from the space
heater in the enclosure contributed to Ray's death.
Claimant presented health and safety materials from federal
and state agencies. The general accuracy of these documents
were largely verified by Drs. From and Whitford. However,
no expert opinion was presented opining that carbon monoxide
was likely present in the structure erected by Warren's crew
or that this gas was a likely contributor to Ray's death.
Dr. From stated that it was only possible. Dr. Whitford did
not render any specific opinion relating carbon monoxide to
Ray's death.
Dr. Whitford stated that if Ray had sought treatment
from him when the chest pains occurred, claimant would have
been hospitalized. Given Dr. Whitford's opinion that Ray's
work contributed to his death, it is logical to conclude
that if Ray had sought care instead of continuing to work,
Ray's chances of survival would have increased. Therefore,
Ray's decision to ignore the chest pains, shortness of
breath and hot flashes and to continue working on December
19, 1990, also was a contributing cause of his death.
Finally, it is found that claimant's burial expenses
exceeded the sum of $1,000 and that the requested medical
expenses set forth in the prehearing report constituted rea
sonable and necessary expense of Ray's last work-related
heart condition.
CONCLUSIONS OF LAW
I. Claimant is seeking benefits as a result of the
death of her husband. Such benefits are available under
Chapter 85, Code of Iowa because a work injury is defined in
the statute to include death as a result of injury. Iowa
Code section 85.61(5)(a). Death from an occupational dis
ease is likewise compensable under chapter 85A of the Code.
Iowa Code section 85A.12. However, an employer is liable
for death benefits only if claimant establishes by a prepon
derance of the evidence that the death arose out of and in
the course of employment. The words "out of" refer to the
cause or source of the injury. The words "in the course of"
refer to the time and place and circumstances of the injury.
See generally, Cedar Rapids Community 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 impair
ments, and a work connected injury which more than slightly
Page 7
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.
The question of causal connection is essentially within
the domain of expert testimony. Bradshsaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion
of experts need not be couched in definite, positive or
unequivocal language and the expert opinion may be accepted
or rejected, in whole or in part, by the trier of fact.
Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). 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 circum
stances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d
867 (1965).
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal connec
tion, such testimony may be coupled with non-expert testi
mony to show causation and be sufficient to sustain an
award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146
N.W.2d 911, 915 (1966). Such evidence does not, however,
compel an award as a matter of law. Anderson v. Oscar Meyer
& Co. 217 N.W.2d 531, 536 (1974). To establish compensabil
ity, the injury need only be a significant factor, not be
the only factor causing the claimed disability. Blacksmith
v. All-American Inc. 290 N.W.2d 348, 354 (Iowa 1980). In
the case of a pre-existing condition, an employee is not
entitled to recover for the results of a preexisting injury
or disease but can recover for an aggravation thereof which
resulted in the disability found to exist. Olson v.
Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251
(1963).
In work injuries involving the heart, Iowa claimants
with preexisting circulatory or heart conditions are permit
ted, upon proper medical proof, to recover worker's compen
sation benefits only when the employment contributes some
thing substantial to increase the risk of injury or death.
The employment contribution must take the form of an exer
tion greater than non-employment life. Sondag, 220 N.W.2d
903 (Iowa 1974). The comparison, however, is not with the
employee's usual exertion in his employment but with exer
tions of normal non-employment life of this or any other
person. Id. These exertions may be physical or emotional.
Swalwell v. William Knudson and Son, Inc., II Iowa
Industrial Commissioner Report 385 (Appeal Decision 1982).
The Sondag rule is favored by Professor Larson in his trea
tise of workers' compensation. See 1A Larson, Workmen's
Compensation Law, section 38.83 at 7-172. According to
Professor Larson, the causative test is a two part analysis.
First, there is a medical causation test in which the medi
cal experts must be relied upon to causally relate the
alleged stress (emotional or physical) to the heart injury.
Second, there is a legal causation test to determine if the
medically related stress is more than the stress of everyday
Page 8
non-employment life.
In the case sub judice, both tests were met. As
pointed out in the Sondag case in quoting Professor Larson's
treatise on workers' compensation that the legal test com
parison is not with the worker's usual exertion in his
employment but with exertions of normal non-employment life.
Sondag, 220 N.W.2d at 905.
Also, it was found that Ray's decision to ignore his
symptoms and continue working contributed to his death.
Consequently, the death can be found work-related indepen
dent of the Sondag theory under the decision of Varied
Enterprises v. Sumner, 353 N.W.2d 407 (Iowa 1984). In
Sumner, a heart attack was held to be work-related when a
truck driver chose to ignore his symptoms and continue
driving.
II. As claimant has shown that Ray's death arose out
of and in the course of employment, the extent of such bene
fits must be determined. First, the employer is liable for
the expenses of the deceased employee's last illness, Iowa
Code section 85.27 & 29, for burial expenses of decedent not
to exceed the sum of $1,000.00, Iowa Code section 85.28, and
for a payment to the Second Injury Fund in the amount of
$4,000.00, Iowa Code section 85.65. Secondly, weekly bene
fits are also available from the employer for surviving
dependants of a deceased employee. Such benefits are paid
in the same amount and manner as work injuries or occupa
tional diseases except that the benefits are paid to the
surviving spouse for life or until remarriage. Iowa Code
section 84.3. A surviving spouse is conclusively presumed
dependant unless there has been a willful desertion of dece
dent by the spouse. Iowa Code section 85.41(1), 85A.6.
In the case sub judice, the requested medical expenses
and burial expenses were found work-related and they will be
awarded.
ORDER
1. Defendants shall pay to claimant weekly death bene
fits at a rate of two hundred three and 13/l00 dollars
($203.13) per week from December 19, 1990, until death or
re-marriage, whichever occurs first.
2. Defendants shall pay to claimant burial expenses
not to exceed the sum of one thousand and no/l00 dollars
($1,000) and the requested medical expenses.
3. Defendants shall pay to the Second Injury Fund the
sum of four thousand and no/l00 dollars ($4,000).
4. Defendants shall pay interest on weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
5. Defendants shall pay the costs of this action pur
suant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
Page 9
6. Defendants shall file activity reports on the pay
ment of this award as requested by this agency pursuant to
rule 343 IAC 3.1.
Signed and filed this ____ day of March, 1992.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Dayton Countryman
Attorney at Law
1001 5th St
P O Box 28
Nevada IA 50201
Mr. Thomas Henderson
Attorney at Law
1300 1st Interstate Bank Bldg
Des Moines IA 50309
Mr. Joseph M. Isenberg
Attorney at Law
116 Kellogg Ave
Ames IA 50010
5-1803
Filed March 24, 1992
LARRY P. WALSHIRE
before the iowa industrial commissioner
____________________________________________________________
:
KAREN S. PETERSON, :
:
Claimant, :
:
vs. :
: File No. 981365
LLOYD R. WARREN d/b/a WARREN :
MASONRY, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
UNITED FIRE & CASUALTY :
COMPANY OF CEDAR RAPIDS, IOWA,:
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803 - Non-precedential, death case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
KAREN S. PETERSON,
Claimant,
vs.
File No. 981365
LLOYD R. WARREN d/b/a WARREN
MASONRY,
R E M A N D
Employer,
D E C I S I O N
and
UNITED FIRE & CASUALTY COMPANY
OF CEDAR RAPIDS, IOWA,
Insurance Carrier,
Defendants.
_________________________________________________________________
This case is on remand from the Iowa District Court for Story County.
The district court's ruling on petition for judicial review
(hereinafter ruling) remanded this case "for further action consistent
with the holdings of this decision." The district court's ruling was
not appealed by defendants, the employer and its insurer, therefore
that ruling is the law of this case for purposes of this remand. The
district court made the following findings:
1. "The Industrial Commissioner's finding that Raymond Peterson was
not engaged in heavy physical labor is simply unsupported by the
record." (Emphasis in the original) (Ruling, page 19)
2. The work the decedent was involved in constituted heavy physical
labor. (Ruling, p. 20)
3. Dr. From's opinion that the heart attack was not work related was
based on erroneous factual assumptions. (Ruling, p. 20)
4. "The Industrial Commissioner's finding that Dr. Whitford's opinion
was based on a faulty assumption, to wit: That the decedent was working
in 'extremely cold weather' is also unsupported by the evidence in this
record." (Ruling, p. 24)
5. "For the Industrial Commissioner to find that Raymond's work
conditions, including 'erecting a brick wall up to the eaves of the
house, placing and lifting bricks, placing the mud in the area where
the bricks were to be located, scraping off the mud, and repeating the
process' did not rise to the level of work exertion he had in his
non-employment life is clearly unsupported by the evidence in this
case." (Ruling, p. 29)
6. "[T]he finding of the Industrial Commissioner that Dr. Whitford's
testimony and opinion that the physical work Raymond was doing was a
contributing cause of his death was based on faulty assumptions,
including the assumption that Raymond was working in the 'extreme' cold
and was engaged in 'heavy physical labor prior to his heart attack,' is
simply not supported by the evidence." (Ruling, p. 30)
It should be noted that it is not the responsibility nor within the
authority of the industrial commissioner to correct what the industrial
commissioner believes to be errors made by the district court on
judicial review of the final agency action filed June 30, 1993.
Therefore, the ruling of the district court will be considered the law
of this case even though the industrial commissioner believes the
district court applied the wrong standard of judicial review, made its
own findings of fact and applied the wrong standard for determining
whether claimant had proved the legal test for compensability in heart
attack cases. The district court compared claimant's work exertion to
the work exertion of claimant's non-employment life.
The court in Sondag v. Ferris Hardware, 220 N.W.2d 903, 905, (Iowa
1974), describes the standard:
In the first situation the work ordinarily requires heavy exertions
which, superimposed on an already-defective heart, aggravates or
accelerates the condition, resulting in compensable injury....
... See 1A Larson's Workmen's Compensation Law 38.83, p. 7-172:
....
"If there is some personal causal contribution in the form of a
previously weakened or diseased heart, the employment contribution must
take the form of an exertion greater than that of nonemployment life.
*** Note that the comparison is not with this employee's usual exertion
in his employment but with the exertions of normal nonemployment life
of this or any other person." (Emphasis in the original.)
(Citations omitted.)
ISSUE
The issue on remand by the district court is whether Dr. From's
testimony was more credible than Dr. Whitford's. (Ruling, p. 33)
FINDINGS OF FACT
For purposes of these findings of fact the findings of the district
court are accepted.
Dr. From's opinion that the heart attack was not work related was based
on erroneous factual assumptions. (Ruling, p. 20) Dr. Whitford's
opinion was not based on faulty assumptions. (Ruling, pp. 24, 30) Dr.
Whitford offered the opinion that claimant's heart attack was caused by
his working conditions. Dr. From did not causally relate claimant's
heart attack to his work as a mason at the time of death.
CONCLUSIONS OF LAW
In work injuries involving the heart, Iowa claimant with preexisting
circulatory or heart conditions are permitted, upon proper medical
proof, to recover workers' compensation benefits only when the
employment contributes something substantial to increase the risk of
injury or death. The employment contribution must take the form of an
exertion greater than nonemployment life. Sondag v. Ferris Hardware,
220 N.W.2d 903 (Iowa 1974). The comparison, however, is not with the
employee's usual exertion in his employment but with exertions of
normal nonemployment life of this or any other person. Id. Swalwell
v. William Knudson and Son, Inc., II Iowa Industrial Commissioner
Report 385 (Appeal Decision 1982). The Sondag rule is favored by
Professor Larson in his treatise of workers' compensation. See 1A
Larson, Workmen's Compensation Law, 38.83 at 7-172. According to
Professor Larson, the causative test is a two part analysis. First,
there is a medical causation test in which the medical experts must be
relied upon to causally relate the alleged stress (emotional or
physical) to the heart injury. Second, there is a legal causation test
to determine if the medically related stress is more than the stress of
everyday nonemployment life.
Claimant bears the burden of proof to show that the heart attack and
resulting death of Raymond Peterson arose out of Raymond's employment.
To meet the "medical test," it must be shown that the fatal heart
attack was caused by work activity. Claimant has offered the testimony
of Dr. Whitford in this regard. Based on the district court's
findings, Dr. Whitford's is the only medical opinion based on correct
assumptions. It was Dr. Whitford's opinion that the decedent's work
was the cause of his heart attack. Claimant has met her burden of
showing that the decedent's work caused his heart attack. Claimant has
met the medical test.
Therefore, it must be found that the decedent's heart attack arose out
of and in the course of his employment.
ORDER
THEREFORE, it is ordered:
That defendants shall pay to claimant weekly death benefits at a rate
of two hundred three and 13/100 dollars ($203.13) per week from
December 19, 1990 until death or re-marriage, whichever occurs first.
That defendants shall pay to claimant burial expenses not to exceed the
sum of one thousand and 00/100 dollars ($1,000.00) and the requested
medical expenses.
That defendants shall pay to the Second Injury Fund the sum of four
thousand and 00/100 dollars ($4,000.00).
That defendants shall pay interest on weekly benefits awarded herein as
set forth in Iowa Code section 85.30.
That defendants shall file activity reports on the payment of this
award as requested by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of December, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Dayton Countryman
Attorney at Law
P.O. Box 28
Nevada, Iowa 50201-0028
Mr. Joseph M. Isenberg
Attorney at Law
323 Main Street
Ames, Iowa 50010
Mr. Thomas Henderson
Attorney at Law
317 Sixth Ave., Ste 1200
Des Moines, Iowa 50309-4110
2202
Filed December 30, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
KAREN S. PETERSON,
Claimant,
vs.
File No. 981365
LLOYD R. WARREN d/b/a WARREN
MASONRY,
R E M A N D
Employer,
D E C I S I O N
and
UNITED FIRE & CASUALTY COMPANY
OF CEDAR RAPIDS, IOWA,
Insurance Carrier,
Defendants.
_________________________________________________________________
2202
On remand it was found that the only medical opinion based on correct
assumptions was that there was a causal connection between the
decedent's work and his heart attack. Claimant established that there
was a causal connection between decedent's work and his heart attack.
Claimant was awarded death benefits.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ROBERT SCHNECK, :
:
Claimant, :
:
vs. :
: File No. 981370
TRANSPORT & DRAYAGE COMPANY :
OF MISSOURI, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
UNITED STATES FIDELITY & :
GUARANTY COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on June 8, 1992, at Des
Moines, Iowa. This is a proceeding in arbitration wherein
claimant seeks compensation for permanent partial disability
benefits as a result of an alleged injury occurring on
October 8, 1990. The record in the proceedings consists of
the testimony of claimant and Lloyd Langston; and,
claimant's exhibits 1 through 3, including subparts of said
exhibits.
The hearing assignment order of April 22, 1992, closes
the record to further evidence or activity of defendants for
defendants' failure to file an answer as previously ordered
in the prehearing assignment order filed on or about March
21, 1992. Defendants' motion to dismiss was deemed,
however, a motion to reconsider the suspension of
defendants' evidence and activity. Said ruling on the
motion was made by Deputy Industrial Commissioner, Helenjean
Walleser, on June 5, 1992.
At the beginning of the hearing, defendants had
requested the undersigned deputy to rule on a motion to set
aside sanctions and motion for continuance filed June 8,
1992, the date of the hearing. The undersigned deputy
considered said motions to be further activity of the
defendants, which activity was barred by the June 5, 1992
hearing. The deputy therefore did not rule on the same.
Said action by the undersigned deputy had the same effect as
a denial and said deputy did indicate that if in fact he
allowed this activity by the defendants said motions would
have been denied.
ISSUES
Page 2
The claimant's attorney filed a prehearing report as
required by the hearing assignment order. Since the
defendants were precluded from activity, said form does not
adequately conform to such a situation. Claimant therefore
filed said order indicating all issues were in dispute since
the form gave the only other alternative that said issues or
certain issues were stipulated to. Although said prehearing
report because of those circumstances indicate all issues
are in dispute, the undersigned is taking claimant's
contentions on certain issues, such as the $554.13 rate, the
$6,280 medical bills and the 2,209.6 medical miles incurred
by the claimant as a fact and not an issue. The undersigned
therefore sets out the following as issues:
1. Whether claimant's alleged injury on October 8,
1990, arose out of and in the course of his employment;
2. Whether claimant's alleged disability and medical
condition is causally connected to an October 8, 1990 work
injury;
3. The nature and extent of claimant's disability and
entitlement to disability benefits; and,
4. Whether claimant is an odd-lot candidate.
FINDINGS OF FACT
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant is a 40 year old who has had one year of
college. Claimant began work for defendant employer on
September 26, 1990, as an over-the-road cross-country truck
driver driving in a six state area. Claimant had a DOT
physical prior to beginning work. Claimant testified that
when he was hired by the defendant employer, the general
manager indicated he would receive 25 percent of the gross
revenue which was to amount to $600 to $800 per week. If
claimant had a long haul and was out five days a week, his
income was $800 to $900 per week. Claimant initially had
what would be considered an orientation or familiarization
to familiarize himself with locations and pickup. This
lasted a few days. During his first full driving week which
ended up being his only full week of employment for
defendant employer prior to his injury, claimant indicated
that on that Monday he only went to pick up the tractor he
was to drive and did not do any other driving. Claimant, in
the following four days in which he drove, earned just under
$600. Claimant felt the one day should be excluded since
that was not actually a driving day in which he could earn
money carrying a load and therefore has determined that
based on this four days of income his rate should be
$554.13. The undersigned finds there being no contrary
evidence, this is the rate for any benefits that might be
allowed herein.
Claimant described the accident that occurred on
October 8, 1990. He was driving a truck over the road and
Page 3
was entering the town of Iowa Falls, Iowa. Claimant
indicated that to avoid a collision with another vehicle,
his truck went into a yard, jumped a curb and claimant was
knocked unconscious. Claimant indicated he was lying on the
engine as a result of the accident and was taken to the
hospital. Claimant said he had a knot on the left side of
his head, two teeth broken, his neck was stiff and he felt
as if his left arm was broken and he hurt from head to toe.
Claimant indicated that he called the employer shortly
thereafter and the employer indicated he should continue to
drive. Claimant indicated he was not able to drive and if
he were, the truck was too badly damaged to be driven.
Claimant related some past injuries, namely, a
laminectomy in 1979 for a herniated disc and another motor
vehicle accident in 1983. He contends none of these
injuries are causing his current problems.
Claimant related his work history which involved being
a private policeman, in charge of shipping and receiving
department, city delivery driver and a cross-country driver,
all prior to beginning work for defendant employer. He
indicated that just before becoming employed with defendant
employer, he was to be a dispatcher and broker for a truck
company but it went broke. Claimant contends he had no work
restrictions prior to October 8, 1990, but a doctor did say
he should not lift too much because of his low back surgery
in 1979.
The undersigned was alerted prior to the hearing that
claimant had a physical condition referred to as
agoraphobia. Claimant indicated this is a condition in
which if one is in tight places or there are too many people
or too much noise around or movement, it affects his
peripheral vision causing a fast and irregular heart beat
resulting in claimant having a hard time breathing.
Claimant did leave the hearing room on one occasion when
there was considerable back and forth argument or discussion
concerning certain disputed issues. Claimant said he did
not have this condition prior to October 8, 1990. He
explained that approximately four months after he had seen a
Dr. Rowe, who he had seen for the first time in December
1990, he had a double vision problem and objects always
appear to be to the left and he would see double. He
indicated he has been treated with different eye lens to
help correct the problem. He indicated he had no prior
problem or did not wear glasses prior to October 8, 1990.
Claimant related the various doctors he has seen and the
nature of some of his treatment. Claimant acknowledged that
a Dr. Zarr released him to go back to work on December 3,
1991. He said at that time he still had double vision and
pain down his left arm and leg and back. He said driving a
truck would not be possible, both because of his double
vision and his inability to satisfactorily drive.
Claimant indicated that he is in debt, borrowing on his
credit card and life insurance because of defendants'
actions and not paying benefits. He indicated that in
December 1991, he received some workers' compensation
benefits sporadically and then they would stop and begin
Page 4
again. He indicated that he sent to the defendants his
medical bills and they still haven't paid them. He related
the total bills outstanding are $6,280.09 at this time.
Claimant emphasized that all of his current medical problems
are caused by his October 8, 1990 injury. He indicated that
one of his eyes is higher than the other and his left arm,
although improving, still results in him dropping things.
He indicated he does not have motor skills and it takes a
long time for him to write his name. Claimant said he has
been referred to a psychiatrist because of anxiety attacks.
He is on medication. He indicated his current restrictions
are that he cannot drive a car and cannot lift over 20
pounds. Claimant testified he has applied for no work since
his October 8, 1990 injury. He said he cannot go into a
restaurant or grocery store because the lights and activity
affect him. He indicated he recently went into a 7-Eleven
store and had to leave because of his agoraphobia. Claimant
has no income and is living on his wife's income. Claimant
testified if he had his regular hours a typical work week
would result in $972.73 gross per week and his rate with two
exemptions would be $554.13.
Lloyd Langston, a rehabilitation counselor for the
Kansas Rehabilitation and Clinical Consultants, testified
his first contact with claimant was May 29, 1992. His
report is reflected in claimant's exhibit 2. Mr. Langston's
report pretty well speaks for itself but he testified that
claimant cannot return to truck driving as he could not
perform the necessary duties. In addition, his vision and
other problems would cause him to be totally unable to
drive. He further opined that given claimant's complete
range of injury and physical conditions, he could not engage
in any substantial employment in the labor market. On page
4 of his report, claimant's exhibit 2, he indicated that
claimant lost 100 percent of his ability to earn wages at
the current time. He further wrote that given his
experience working with severely disabled individuals over
the past 15 years, and claimant's lack of marketable
transferable skills, his unlikely success at further
educational endeavors, and his previous types of employment
leaves claimant unemployable and unplaceable in the
competitive labor market to the current time. He further
wrote that if his condition should improve in the future, he
may then be a candidate for vocational rehabilitation
services. Mr. Langston further emphasized that claimant is
not capable due to his condition to perform part-time work.
He indicated retraining would not benefit claimant. He
indicated claimant has trouble comprehending the written
word and he cannot maintain a train of thought and that
these would be problems preventing claimant from getting
more education.
James F. Holleman, Jr., D.O., testified through his
deposition taken on June 3, 1992. Dr. Holleman testified
that his practice is limited to injury rehabilitation. He
described this as a practice in which he has an active
strength hardening progressive resistance exercise type
Page 5
program that he utilizes at his clinic. He indicated that
he gets referrals from physicians and insurance companies of
patients for rehabilitation from injured conditions and
injuries resulting from work-related injuries, auto
injuries, personal injuries, or any other type of injury,
orthopedic or non-surgical, etc. His deposition is
claimant's exhibit 3(f). The doctor indicated he has been
operating his clinic for two years and before that time he
was in private practice in Las Vegas doing essentially the
same thing. Attorney Baker's objection to the doctor giving
any opinions is overruled (Claimant's Exhibit 3(f), page 9).
Said attorney's continuous objections as to this particular
doctor's opinions will be continuously hereafter overruled
for all the same reasons.
The doctor indicated he first saw claimant on January
14, 1992, when claimant was referred to him for disability
evaluation. He related the various medical records and
functional capacity assessments that he had at the time of
his evaluation (Cl. Ex. 3(f), pp. 11, 12). The doctor gave
an approximate 128 page deposition. The undersigned
believes that the reports of the doctor, both those attached
as deposition exhibits and those put separately as
additional exhibits, fully set out the doctor's conclusions.
The doctor did emphasize on more than one occasion that the
tests that were given are also done for purposes of
revealing any malingering. He indicated that all
malingering tests were negative (Cl. Ex. 3(f), p. 26). In
fact, he indicated on page 100 that each test is done three
times to weed out the malingerers. Page 45 through 48 of
claimant's exhibit 1(b) is the doctor's injury rehab
center's April 14, 1992 report. At that time, he opined
that claimant's whole person impairment was 50 percent. His
diagnosis is shown on page 46 and included but not limited
to a closed head trauma, a brain stem injury with
significant cranial nerve involvement, ringing in the ears,
tinnitus, traumatic cerebral syndrome, per brain mapping
performed by Dr. Egea on March 17, 1992. Neurological
difficulties include memory loss, ability to recall, mood
changes, decreased concentration span, insomnia, headaches,
dizziness and diplopia, chronic with patient already having
had to change his lenses four times.
A January 14 disability evaluation report represented
by pages 49 through 60 of claimant's exhibit 1(b) are even
more detailed. At that time, the doctor specifically rated
certain impairments to certain disorders or problems that
claimant had. At that time, he came up with a 42 percent
whole permanent partial impairment. In that 42 percent, he
had related 10 percent to a specific disorder of the lumbar
spine. He indicated a Grade II intervertebral disc,
surgically treated with claimant having a laminectomy of L5-
S1 in 1979 with residual symptoms. He indicated that the
preexisting surgery with no residual symptoms have become
symptomatic since claimant's October 8, 1990 injury. The
undersigned interprets this to mean that even though there
Page 6
had been prior injury and prior impairment, there is no
residuals of that prior impairment as of October 8, 1990.
The undersigned therefore understands that this current
impairment from that is the result of claimant's October 8,
1990 injury having substantially aggravated this back
condition and thereby contributing to his current
impairment.
The test of Fernando M. Egea, M.D., Neurology-
Psychiatry, Electromyograhy-Electroencephalography, is
represented by claimant's exhibit 1(c). Dr. Egea concluded
that claimant had a mildly abnormal topographic brain
mapping that could be compatible with traumatic cerebral
syndrome (Cl. Ex. 1(c)). This report is dated March 17,
1992. On his March 24, 1992 letter, Dr. Egea indicated that
in regards to claimant's head trauma and the accident, the
patient will recover and did have a mild traumatic cerebral
syndrome which is mildly residual now and will do alright
from this point of view (Cl. Ex. 1(c), p. 68).
Page 85 of claimant's exhibit 1(h) indicates that
claimant had a minimal annular bulge at L4-L5 L5-S1 levels.
Claimant's exhibit 1(h), pages 87 and 88, reflects a May 1,
1991 report of Dan M. Gurba, M.D. The doctor indicated that
he would rate claimant's permanent partial impairment from
the cervical and musculoligamentous strains that he
sustained in the most recent work-related accident in
October 1990 as 25 percent of the body as a whole. He
further indicated this does include both cervical and lumbar
injuries and does not include any rating for his previous
injuries.
Claimant's exhibit 1(i) is a report of James S. Zarr,
M.D., dated December 3, 1991, in which he opined a 7 percent
whole body permanent impairment for claimant's neck and back
pains combined. He also indicated he is releasing claimant
to work with a restriction of no level lifting or carrying
greater than 40 pounds, no lifting from the floor greater
than 30 pounds, no overhead lifting greater than 35 pounds,
no pushing greater than 90 pounds, no pulling greater than
103 pounds, and no repeated squatting (repeated means
greater than 30 times per hour).
The undersigned has reviewed and sees no importance of
setting out anything further concerning the claimant's
exhibits 1(k) through 1(l).
Claimant's exhibit 1(m), page 124, reflects a report
from Stephen L. Reintjest, M.D. dated August 12, 1991, in
which he indicated claimant had significant visual
impairment and he did not think claimant should return to
being a truck driver. Claimant's exhibit 1(o), page 178, is
a June 11, 1991 report of Dr. Zarr in which he indicated
claimant had a normal EMG and nerve conduction study and
that there was no electrodiagnostic evidence of
radiculopathy, plexopathy, neuropathy or peripheral nerve
entrapment.
Claimant's exhibit 1(q), page 262, is an August 12,
1991 letter of Gerhard W. Cibis, M.D., in which he indicated
Page 7
claimant had lack of fusion (double vision) post trauma. He
indicated glasses, prisms and surgery will be used but
cannot be guaranteed to restore single vision. He indicated
claimant's double vision is keeping him from returning to
work and at that time he could not predict when, if ever,
claimant would be able to return to work. He indicated that
claimant has every desire to be better but will never be
able to achieve that. Claimant's exhibit 1(q), page 254,
refers to the October 1, 1991 operative procedure concerning
claimant's eye performed by Dr. Cibis.
The undisputed evidence shows that claimant incurred a
work injury on October 8, 1990. There is substantial
medical evidence which further shows that claimant incurred
substantial injuries to various parts of his body. The
undersigned believes that the medical report of Dr. Holleman
is a good summary of the overall medical situation of
claimant and substantially sets out the permanent impairment
as a result of this work injury. The undersigned also
believes that even though part of the 50 percent impairment
was in reference to claimant's lumbar area and referred to a
laminectomy in 1979, it seems to indicate that there was no
residuals from that injury and whatever impairment now
exists is because of the October 8, 1990 work injury. Under
Bearce v. FMC Corporation, 465 N.W.2d 531 (Ia. App. 1991),
it would also bear out that there would be no impairment
from the 1979 injury attributable to claimant's October 8,
1990 injury. Claimant was working on October 8, 1990, and
had no effects of the 1979 or 1983 injuries. On page 59 of
claimant's exhibit 1b, the doctor opined that claimant had
reached maximum medical improvement. It also notes that
between the January 14, 1992 and the April 14, 1992 report,
the doctor increased claimant's permanent impairment from 42
to 50 percent. The undersigned would normally find in this
case that claimant is entitled to healing period benefits
beginning October 8, 1990 through January 14, 1992, but
since the undersigned is finding total permanent disability,
healing period is a moot issue.
The undersigned finds that defendants shall pay
claimant's medical, which is in the amount of $6,280.09. It
appears there are other bills that may be outstanding. The
undersigned finds that claimant has currently incurred
2,209.6 medical miles as a result of his medical treatment
which shall be paid by defendants. The undersigned also
finds that claimant was an employee of defendant employer on
October 8, 1990.
The undersigned finds that claimant is currently
unemployed and that he is unemployable considering his age,
intelligence, pre and post-October 8, 1990 medical history,
his work history, transferable skills, his inability to
engage in employment for which he is fitted, the nature,
location and severity of his injuries, the healing period,
his education and functional impairment. The undersigned
believes that claimant's exhibit 2, the report of the
vocational consultant, and the consultant's testimony
Page 8
overwhelmingly supports these findings and conclusions.
Claimant currently has a complete loss of income.
Taking all those items that are considered in
determining industrial disability, most of which have been
referred to above and all the other criteria, the
undersigned finds that claimant is permanently totally
disabled.
The undersigned finds it is unnecessary to determine
whether claimant is an odd-lot candidate in light of the
above findings.
Claimant seems to be relying on 86.13(4) penalty
benefits even though it is not set out in the prehearing
report. Even if it were, the hearing assignment order did
not have it set as an issue and therefore would not be an
issue the undersigned could decide.
CONCLUSIONS OF LAW
The claimant has the burden of proving by a
preponderance of the evidence that the injury of October 8,
1990, is causally related to the disability on which he now
bases his 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
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman v. Central Telephone
Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, the mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900,
908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a
preexisting condition or disability that is aggravated,
accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815
(1962).
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
Page 9
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
Iowa Code section 85.34(1) provides that if an employee
has suffered a personal injury causing permanent partial
disability, the employer shall pay compensation for a
healing period from the day of the injury until (1) the
employee returns to work; or (2) it is medically indicated
that significant improvement from the injury is not
anticipated; or (3) until the employee is medically capable
of returning to substantially similar employment.
Page 10
Also disputed is 86.13(4) (penalty benefits). This
issue, however, was not listed as an issue on the hearing
assignment order and, accordingly, the undersigned is
without jurisdiction to consider it. See Joseph Presswood
v. Iowa Beef Processors, (Appeal Decision filed November 14,
1986) holding an issue not noted on the hearing assignment
order is an issue that is waived.
It is further concluded that:
Claimant was an employee of defendant employer on
October 8, 1990, at which time he incurred a work injury
which arose out of and in the course of his employment and
that said work injury caused claimant to incur substantial
permanent injuries to various parts of his body.
Claimant has a substantial permanent functional
impairment as a result of his October 8, 1990, work injury.
Claimant's permanent impairment, medical condition and
disabilities are causally connected to his October 8, 1990
work injury.
Claimant incurred medical bills which amount to at
least $6,280, and which are caused by claimant's October 8,
1990 work injury, and that defendants are to pay all of
claimant's medical bills connected with his October 8, 1990
injury.
Defendants shall pay the mileage incurred to date of
2,209.6 miles which the undersigned finds is causally
related to claimant's October 8, 1990 injury.
Claimant has been totally permanently disabled as a
result of his October 8, 1990 work injury and that
claimant's benefits shall be paid at the weekly rate of
$554.13 beginning October 8, 1990.
ORDER
THEREFORE, it is ordered:
That defendants shall pay claimant compensation for
permanent total disability at the rate of five hundred
fifty-four and 13/100 dollars ($554.13) per week for the
period of claimant's disability, commencing October 8, 1990.
That defendants shall pay accrued weekly benefits in a
lump sum.
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 an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Page 11
Signed and filed this ____ day of June, 1992.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Joseph A Happe
Attorney at Law
500 Liberty Bldg
Des Moines IA 50309
Ms Iris J Post
Attorney at Law
2222 Grand Ave
P O Box 10434
Des Moines IA 50306
Mr Patrick M Reidy
Attorney at Law
4420 Madison Ave
Kansas City MO 64111
1804; 5-1100; 5-1108
5-3000; 5-2500; 5-4000
Filed June 26, 1992
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ROBERT SCHNECK, :
:
Claimant, :
:
vs. :
: File No. 981370
TRANSPORT & DRAYAGE COMPANY :
OF MISSOURI, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
UNITED STATES FIDELITY & :
GUARANTY COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
The defendants were foreclosed from further evidence or activity
by a ruling made by another deputy prior to hearing.
1804
Forty-year-old claimant unable to work or be placed in any
competitive labor market and unless his condition improves, he is
not a candidate for vocational rehabilitation. Claimant was a
truck driver and one of his injuries was a head injury. Claimant
has double vision, etc., as well as other body as a whole
injuries. Found claimant permanently totally disabled.
5-1100; 5-1108
Found claimant's injury arose out of and in the course of his
employment and this work injury caused claimant's disability.
5-3000
Rate was determined to be $554.13 per week.
5-2500
Claimant awarded medical and mileage.
5-4000
Penalty benefits not allowed as this was not an issue on hearing
assignment order.