1804; 1108
Filed January 30, 1990
Deborah A. Dubik
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
JAMES LEHRMAN,
Claimant,
VS. File No. 770825
MIDWEST SERVICE COMPANY, A R B I T R A T I O N
Employer, D E C I S I O N
and
AMERICAN Mutual INSURANCE CO.
Insurance Carrier,
Defendants.
1804; 1108
Claimant was injured in collision with another semi that
resulted in the death of the other driver. Claimant underwent
cervical fusion and was hospitalized for one month with a
permanent partial impairment due to his cervical problems of 20%.
Claimant, since the injury, has had personality imbalances,
psychiatric hospitalizations, psychogenic amnesia and suicidal
ideations. Claimant has had ongoing psychological counseling and
found.to have permanent partial impairment of 20% due to these
problems. Claimant's psychological problems found casually
connected to the injury.
Claimant has been unable to secure any employment since his
injury except for temporary employment at the behest of his
sister-in-law. Claimant, although very bright, could not
complete a retraining course due to his psychological problems.
Claimant found to be permanent total.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
MARK E. DORPINGHAUS,
Claimant,
vs. File No. 771007
UNIVERSITY OF IOWA HOSPITALS A P P E A L
AND CLINICS,
D E C I S I O N
Employer,
and
STATE OF IOWA,
Insurance Carrier,
Defendants.
STATEMENT OF THE CASE
Claimant appeals from an arbitration decision denying any
benefits as a result of an injury on May 24, 1984.
The record on appeal consists of the transcript of the
arbitration hearing; joint exhibit l; and claimant's exhibits 2
and 3. Both parties filed briers on appeal.
ISSUE
The issue on appeal is wether there is a causal relationship
between the alleged injury and the claimed disability.
REVIEW OF THE EVIDENCE
The arbitration decision adequately and accurately reflects the
pertinent evidence and it will not be reiterated herein.
APPLICABLE LAW
The citations of law in the arbitration decision are appropriate
to the issues and evidence.
ANALYSIS
Claimant has the burden of proving that his alleged injury on May
24, 1984 is causally related to his claimed disability. Claimant
argues on appeal that he has established sufficient evidence to
establish the causal connection. The claimant
DORPINGHAUS V. UNIVERSITY OF IOWA HOSPITALS AND CLINICS
Page 2
relies upon the fact that claimant experienced pain shortly after
the fall. However, claimant acknowledges that no medical
personnel have causally related claimant's condition with the
incident on May 24, 1984 (hereinafter sometimes referred to as
the fall).
After the fall claimant was examined by Edward A. Dykstra, M.D.;
examined and treated by Michael M. Durkee, M.D.; and examined by
James B. Worrell, M.D. None of these doctors indicated that the
fall was the probable cause of any disability to claimant.
Likewise, none of these doctors indicated that the fall
aggravated claimant's prior shoulder problems.
Not only is there no medical evidence to support a causal
connection between the fall and claimant's alleged disability
but, claimant's own statements and testimony indicate that his
current condition is the result of shoulder problems that
predated the fall by three years. Claimant testified that he had
a recovery of 89-90 percent after the surgery in 1981. He did not
deny that Dr. Durkee advised him that his limitation of motion
was due to the prior surgeries. He also testified that he
indicated to his supervisor that his limitation of motion was for
a short period of time following the surgery after the fall. He
returned to his same job. The office note of Dr. Durkee indicates
that claimant told the doctor that he was 100 percent better than
before his surgery following the fall. The statements made by the
claimant do not demonstrate that his fall was the cause of any
disability, either temporary or permanent. claimant has provided
neither medical evidence nor any other evidence that shows that
his fall was the cause of any disability. The chronological
proximity between the fall and the onset of pain may be evidence
of an injury but it is not evidence of a disability. Claimant has
clearly not met cause of a disability, either temporary or
permanent.
FINDINGS OF FACT
1. Claimant was employed by the University of Iowa Hospitals and
Clinics as a nursing assistant I, Department of Pediatrics,
Division cf Development Disabilities on May 24, 1984.
2. Claimant's work shift began at 6:30 a.m. and ended at 3:30p.m.
3. Claimant was assigned a parking space in the University owned
parking lot.
4. The main entrance of the Department of Pediatrics hospital
school building was not open until 8:00 a.m.
DORPINGHAUS V. UNIVERSITY OF IOWA HOSPITALS AND CLINICS
Page 3
5. Claimant used a side entrance to the Department of Pediatrics
hospital school building to enter to begin his work shift.
6. The route from the assigned parking lot to the ancillary
entrance which claimant normally used required a walk downhill
through a grass-seeded area where construction was taking place.
7. It had rained throughout the night into the morning of May 24,
1984.
8. Claimant fell enroute to the hospital school building on the
morning of May 24, 1984 approximately 50 yards from the hospital
school building and approximately 100 yards from the entrance
claimant customarily used.
9. Claimant had had numbness and tingling involving his hands and
fingers as of May 27, 1981.
10. Claimant had fallen down stairs injuring his shoulders in
approximately 1979.
11. On July 9, 1981 claimant had a Du Toit stapling of the right
glenohumeral joint for recurrent anterior subluxation of the
right humeral joint.
12. On October 1, 1981 claimant had a superior staple removed
from the right glanoid.
13. Claimant had had limitation of right shoulder motion prior to
May 24, 1984.
14. As of May 24, 1984 claimant had mild tenderness of shoulder
with limitation of motion.
15. x-rays of May 24, 1984 showed no evidence of dislocation, but
did reveal a staple extremely close to the anterior aspect of
claimant's glenohumeral joint.
16. Right shoulder arthroscopy of June 22, 1984 revealed
recurring dislocation and marked degenerative changes in he
(glenohumeral) joint .
17. Bristow Repair of the shoulder and removal of the staple in
the glenohumeral joint was performed on July 15, 1984.
18. Electromyographic studies of June 12, 1986 revealed no nerve
conduction abnormalities.
19. Claimant's permanent partial impairment is five percent of
the arm or approximately three percent of the body as a whole.
DORPINGHAUS V. UNIVERSITY OF IOWA HOSPITALS AND CLINICS
Page 4
20. Any industrial disability arising from claimant's injury, had
such been found, would have been minimal.
CONCLUSIONS OF LAW
Claimant has established a work incident of May 24, 1984, which
incident did arise out of and in the course of his employment.
Claimant has not established that that incident resulted in an
injury which was causally related to claimed disability.
Claimant has not established any entitlement to healing period,
temporary total disability or permanent partial disability
benefits as a result of the incident of May 24, 1984.
Claimant has not established medical costs which are compensable
under section 85.27 as related to a compensable injury.
WHEREFORE, the decision of the deputy is affirmed.
ORDER
THEREFORE, it is ordered:
That claimant take nothing from this proceeding.
That claimant pay the costs of this proceeding including costs of
transcription of the arbitration hearing.
Signed and filed this 21st day of February, 1989.
DAVID E. LINQUIST
INDUSTRIAL COMMISSIONER
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
MARK E. DORPINGHAUS,
Claimant, File No. 771007
vs. A R B I T R A T I O N
UNIVERSITY OF IOWA HOSPITALS D E C I S I O N
AND CLINICS,
Employer, F I L E D
and JAN 20 1988
STATE OF IOWA, IOWA INDUSTRIAL COMMISSIONER
Insurance Carrier,
Defendants.
INTRODUCTION
This is a proceeding in arbitration brought by the claimant,
Mark E. Dorpinghaus, against his employer, University of Iowa
Hospitals and Clinics, and its insurance carrier, the State of
Iowa, to recover benefits under the Iowa Workers' Compensation Act
as a result of an injury allegedly sustained on May 24, 1984.
This matter came on for hearing before the undersigned deputy
industrial commissioner at Cedar Rapids, Iowa, on June 16, 1987.
A first report of injury was filed August 23, 1984. No benefit
payments have been made. The record in this case consists of the
testimony of claimant as well as of joint exhibit 1 and claimant's
exhibits 2 and 3.
The parties specified relative to claimant's exhibit 2 that,
of the 21 pages of medical costs submitted, only $202.29 had not
been paid by the health insurer. Also, a statement in the amount
of $150.00 from Medical Practitioners Neiman and Worrell was not
received into evidence pursuant to defendants' objection that it
was not timely served.
ISSUES
Pursuant to the prehearing report, the parties stipulated
that claimant's rate of weekly compensation is $120.84. They
further stipulated that claimant's time off work and period of
benefits for healing period entitlement, if such is found, would
be from May 25, 1984 through September 3, 1984. They stipulated
that claimant's medical costs are fair and reasonable for the
services provided and that defendants would be entitled to credit
under 85.38(2) as outlined in the prehearing report attachment
which is incorporated into this decision by this reference.
Issues remaining to be decided are: (1) whether claimant
received an injury which arose out of and in the course of his
employment; (2) whether a causal relationship exists between the
alleged injury and the claimed disability; (3) whether claimant
is entitled to benefits and the nature and extent of any benefit
entitlement; and, (4) whether claimant is entitled to payment of
certain medical costs pursuant to section 85.27.
REVIEW OF THE EVIDENCE
Claimant described himself as a 29-year-old high school
graduate who has completed two years of a business education
course at the University of Iowa and one year of a nursing
program at Kirkwood Community College. He hopes to reenroll and
complete the nursing program. Claimant has been employed at the
University of Iowa for approximately ten years in clerical and
nursing assistant positions. Claimant also has prior employment
experience as a long-distance telecommunicator with American
College Testing Services. Claimant is now employed as a nursing
assistant I at the Department of Pediatrics, Division of
Developmental Disabilities. He described his duties as lifting
clients who range in age from infancy to approximately 30-35
years and in weight from approximately 13 to 150 pounds. He
reported that he must do so without assistance and that he must
also brace, walk and restrain mentally disabled clients.
Claimant agreed that his general office skills from ACT as well
as his understanding of medical terminology, his ability to
document medical information and his ability to physically and
psychologically restrain and work with clients are skills which
are likely quite marketable in the medical community. He also
agreed that he has received contract negotiated raises since his
alleged injury.
Claimant reported that on his injury date, which is
variously described as May 24 or May 25, 1984, he was to work
from 6:30 a.m. to 3:30 p.m. He reported that, on that morning,
he parked his car in his assigned parking lot, which was owned by
the University of Iowa, and walked downhill to the hospital
school building in which he was employed. Claimant stated it had
rained throughout the night and the surface was muddy as it was
seeded for grass, but the grass had not yet begun to grow. He
reported that construction was also underway in the area.
Claimant fell approximately 50 yards from the hospital school
building and approximately 100 yards from the entrance of the
building which claimant generally used upon arriving at work.
Claimant reported that the main entrance of the building did not
open until 8:00 a.m. Claimant described his fall as occurring at
a "dip in the hill" which claimant believed had been created for
wheelchair access. Claimant testified that he physically fell
backwards and caught himself with the palms of his hands extended
outward. He indicated that he began work and informed the head
nurse of his injury. He reported having a dull right shoulder
pain with a red and blotchy area about the shoulder. He sought
care at the Employee's Medical Clinic. X-rays were taken and
claimant reported he was told there was no injury. Claimant
described his arm as immobile, swollen and painful with numbness
in the arm, palm and 4th and 5th fingers.
Claimant subsequently took his x-rays to Mercy Hospital where
he saw Edward A. Dykstra, M.D., an orthopaedic surgeon.
Claimant's follow-up care, which will be described below, included
Bristow Repair and shoulder reconstruction surgery. Claimant
returned to work on September 4, 1984. Claimant reported he had a
50-pound lifting restriction upon his work return and was advised
to use extreme caution in using his arm and in movements away from
his torso. He agreed that such is no longer in effect. Claimant
reported that shoulder pain occurs now at least twice weekly and
that he has limited range of motion as well as limited ability to
put his arm behind his back or his head without pain. He reported
that he is unable to swim or play racquetball. He agreed that he
can now lift 50 pounds, but stated that his ability to perform his
job has not changed in the past three years. He reported that
co-employees help him out on the job and that he often takes sick
leave for reasons other than for his shoulder. Claimant opined
that, if he would pursue a nurse's training course, such may
require lifting and stated his belief that he had not received a
job for which he had applied in the intensive care unit because of
his 50-pound lifting restriction. Claimant testified that he has
applied for a position as a nursing unit clerk and as a clerk II
in the hopes that taking such jobs would alleviate problems he has
in doing physical work.
Claimant agreed that he has had prior right shoulder surgery
with Bruce L. Sprague, M.D., in 1981. He reported that such was
for shoulder dislocation and staple repair. Claimant alleged
that, after a six- to eight-week recovery period, he had no
subsequent problems with the shoulder in his work or life
activities. On cross-examination, he did not deny that he had
limited shoulder range of motion prior to his May, 1984 injury.
A May 27, 1981 note of B. L. Sprague, M.D., reports that he
had seen claimant in his office that day and that claimant
reported that, approximately two years earlier, he had fallen
down some stairs injuring his shoulder. Claimant stated he had
pain in the shoulder, particularly with abduction and external
rotation which could be relieved "by forcing the shoulder down to
A D duction [sic] and internal rotation." Claimant had radiation
of pain down the medial aspect of the arm with numbness and
tingling involving his hand and fingers. Some crepitus was noted
on taking the shoulder from extension, external rotation to
abduction, internal rotation. X-rays showed an old fracture off
the anterior lip of the glenoid. Dr. Sprague's impression was
that claimant had recurrent subluxations of the shoulder and
would probably benefit from a shoulder capsular reattachment.
A July 8, 1981 Mercy Hospital report of Ben Welch, M.D.,
reported that claimant had limitation of abduction of the right
shoulder and was unable to get much over 85 degrees. He
reportedly was otherwise able to internally rotate and externally
rotate fully and extend fully, although there was some crepitus
with abduction and extension in the shoulder joint. Neurosensory
and motor functions in the arm were normal and intact.
On July 9, 1981, claimant had a Du Toit stapling, right
glenohumeral joint for recurrent anterior subluxation, right
humeral joint.
On July 29, 1981, Dr. Sprague reported that claimant had
full flexion, 130 degrees of abduction, 40 degrees of internal
rotation and external rotation to neutral. He characterized
claimant as doing extremely well and gaining his full range of
motion.
On September 4, 1981, Dr. Sprague reported that claimant had
much less motion in his right shoulder than a month earlier.
Flexion was limited to 130 degrees, abduction to 90 degrees and
internal rotation with external rotation of 20 degrees. Claimant
reportedly stated that he had had a heavy door close against his
hand and that this resulted in decreased shoulder motion.
On September 16, 1981, claimant was reported as having less
pain in the right shoulder, but not as good as two months
earlier. Abduction was 130 degrees; flexion was 130 degrees; good
external rotation; and, very limited internal rotation. Dr.
Sprague suggested the exploration of the glenohumeral joint with
removal of staples.
On October 1, 1981, Dr. Sprague removed the superior staple
from the right glenoid.
On October 12, 1981, Dr. Sprague reported that claimant had
110 degrees of flexion, 90 degrees of abduction, 40 degrees of
internal rotation and 20 degrees of external rotation.
On October 26, 1981, claimant had 150 degrees of flexion,
150 degrees of abduction, 40 degrees of internal rotation and 20
degrees of external rotation. He had some pain on lifting with
his arm and mild crepitus around the rotator cuff which Dr.
Sprague characterized as perfectly normal at that time.
An x-ray report of May 25, 1984 for the right shoulder
reports that claimant is status post stapling of the right
shoulder as a "Hill-Sachs deformity" but no fracture or
dislocation at that time.
Notes of E. A. Dykstra, M.D., of May 24, 1984 indicate that
claimant was examined in the emergency room and had mild
tenderness over his shoulder with limitation on range of motion
and was placed in a shoulder immobilizer. The note further
reports that x-rays including a stress axillary view show no
evidence of dislocation, but that claimant has a strange shaped
glenoid with a staple extremely close to the anterior aspect of
the joint.
Michael M. Durkee, M.D., on June 5, 1984, noted that x-rays
revealed the staple appeared to be essentially in the anterior
aspect of the joint. The doctor noted that, upon examination,
claimant had a great deal of grinding and catching in the
shoulder and that the edge of the staple may be causing this.
On June 22, 1984, Dr. Durkee reported that claimant had had a
right shoulder arthroscopy and was felt to have recurring
dislocation and marked degenerative changes in the joint.
Claimant was reported as having lost a great deal of motion.
On June 29, 1984, Dr. Durkee reported that he felt the
staple may be giving claimant a little bit of trouble and would
be removed. Bristow Repair of the shoulder, as well as removal
of the staple, was performed July 15, 1984.
On August 24, 1984, Dr. Durkee reported that claimant had
abduction to about 70-80 degrees; forward flexion to 110 degrees;
internal rotation to 90 degrees; and, almost no external
rotation.
On September 25, 1984, Dr. Durkee reported claimant had
abduction to 90 degrees; forward flexion to 120 degrees; internal
rotation to 85-90 degrees; and, external rotation of 10-15
degrees. He reported that claimant was able to get his hand
behind his head with some difficulty, but was not quite able to
get his hand behind the small of his back. Claimant was weight
lifting at 25 pounds.
On November 13, 1984, Dr. Durkee stated that claimant "was
doing very well," had some limitation of motion and was unable to
get his hand completely behind the small of his back. Abduction
was reported as only to 90 degrees. Claimant was able to get his
hand behind his head and had minimal amounts of pain and
discomfort. Claimant was reported as stating the shoulder was
"100% better than before surgery."
On October 1, 1984, Dr. Durkee reported that, under the
orthopaedic surgeon's guide, claimant's permanent physical
impairment equals five percent of the arm.
On May 8, 1986, James B. Worrell, M.D., pediatric and adult
neurologist, reported that muscle strength over the shoulder
girdle, including the rhomboids, spinatus and pectoral muscles was
quite strong. Deltoid gave way a bit, but had no atrophy.
Biceps, triceps, wrist extensors and extensors of the fingers were
all reported as fairly strong with finger abduction a bit weaker
on the right side, but not much. No atrophy was noted. Thumb
flexion was strong, autonomic function seemed equal over the hands
and reflexes were symmetrical. Claimant had "some decrease in
sensory [sic] over the top of the right shoulder," mainly in the
C5 distribution, but perhaps onto the C4. He was reported as
having diminished sensation over the under aspect of the arm into
the 4th and 5th fingers of the right hand which would be mainly T1
and C8, but other sensory areas seem fairly well spared. Dr.
Worrell stated that, neurologically, claimant may have had injury
to the brachial plexus with all these recurrent injuries. The
doctor doubted that this would be a progressive problem. On June
12, 1986, Dr. Worrell reported that electromyographic studies
revealed no nerve conduction abnormalities. He indicated there
were some modest changes in the C5 muscle and C8 muscle,
indicating some old injury perhaps to those nerve roots, but
nothing acute. He suspected a previous stretch injury, perhaps to
the plexus, now stable.
Medical expenses, as could be gleaned from the submissions
made, were as follows:
Walgreens prescriptions $12.29
Steindler Ortho Clinic 5/24/84-8/24/84 2,066.00
Mercy Hospital IA CITY 5/25/84 72.50
Mercy Hospital IA CITY 6/13/84 1,225.60
Mercy Hospital IA CITY 7/18/84-7/20/84 2,297.34
M A Menezes M.D. 8/3/84 345.00
M A Menezes M.D. 7/2/84 299.00
University Hospitals 6/7/84 42.00
Towncrest X-ray Dept. 6/6/84 24.00
Bruce L. Sprague M.D. 5/27/84-10/26/84 1,274.00
APPLICABLE LAW AND ANALYSIS
Of first concern is whether claimant received an injury
which arose out of and in the course of his employment.
Claimant has the burden of proving by a preponderance of the
evidence that he received an injury on May 24, 1984 which arose
out of and in the course of his employment. McDowell v. Town of
Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central
Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
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).
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 (1963) 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 v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68
N.W.2d 63 (1955).
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 v. DeSoto Consol. Sch. Dist.,
246 Iowa 402, 68 N.W.2d 63 (1955).
"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 v. Union et al. Counties, 188
N.W.2d 283 (Iowa 1971), Musselman v. Central Telephone Co., 261
Iowa 352, 154 N.W.2d 128 (1967).
As a general rule, absent special circumstances, employees
are not entitled to compensation for injuries occurring off the
employer's premises on the way to or from work. However, an
injury arising out of and in the course of employment may be
found where: (1) the site of injury was so closely related in
time, location and employee usage to the work premises as to
bring the claimant within the zone of protection of the workers'
compensation law, or (2) the employer had exercised its control
over the abutting area as to make it an extension of the business
premises. Frost v. S. S. Kresge Co., 299 N.W.2d 646, 648 (Iowa
1980).
In the instant case, claimant fell approximately 50 yards
from the hospital school building and approximately 100 yards from
the entrance to the building which claimant normally used to enter
his work premises. While the record is silent as to whether any
other entrances were available to claimant, the record discloses
that the building's main entrance was not open until 8:00 a.m.
Claimant was expected to arrive at work at or before 6:30 a.m.
Thus, it could be expected that claimant would be in the vicinity
of this or another ancillary entrance while traveling to work.
The record is also silent as to whether claimant might have chosen
a less-hazardous route into the building. Claimant appears to
have been taking the most direct route from his assigned parking
lot to his work premises, however. Hence, it appears that the
employer acquiesced in claimant's use of such route to enter the
building from one of, if not the only, entrance available at the
time his work shift began.
The record is silent as to ownership of the area where
claimant fell. Claimant was traveling from an assigned
employer-owned parking lot to the employer's premises at the time
of his fall, however. As noted, the main entrance to the
employer's premises was not available to claimant when his fall
occurred. As further noted, the employer apparently acquiesced
in the use of the route from the parking lot to the employer's
premises on which the injury occurred. Such would suggest that
the employer had some degree of control over the area, if not
through ownership, then through an informal and consented-to
arrangement permitting its employees entrance by that route.
Given the foregoing, it can be said that the site of claimant's
fall was so closely related in time, location and employee usage
to the work premises as to bring claimant within the zone of
protection of the workers' compensation law and that the employer
had exercised such control over the route on which the fall
occurred as to make the route an extension of the employer's
business premises. Thus, claimant has established a work
incident arising out of and in the course of his employment on
May 24 or 25, 1984. It remains for claimant to establish that
his work incident resulted in a work injury which is causally
related to his claimed disability.
The claimant has the burden of proving by a preponderance of
the evidence that the injury of May 24, 1984 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, 760-761
(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).
The Iowa Supreme Court cites, apparently with approval, the
C.J.S. statement that the aggravation should be material if it is
to be compensable. Yeager v. Firestone Tire & Rubber Co., 253
Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's
Compensation 555(17)a.
Initially, we note that no medical personnel has causally
related claimant's condition to his work incident of May 24,
1984. Likewise, no physician has indicated that the work incident
aggravated claimant's prior shoulder problems. Claimant was not
thought to have evidence of a dislocation when examined on May
24, 1984. A staple extremely close to the anterior aspect of the
(glenohumeral) joint was disclosed on x-rays of that date,
however. As of June 22, 1984, Dr. Durkee opined that claimant
had recurring dislocation of the right shoulder with marked
degenerative changes in the joint. He felt, as of June 29, 1984,
that the staple (remaining from claimant's July 9, 1981 Du Toit
stapling of the right glenohumeral joint) "may be giving"
claimant "a little bit of trouble" and advised its removal.
Bristow Repair of the shoulder was also advised. At no point
does either Dr. Durkee or Dr. Dykstra, or any other medical
practitioner, indicate that the repair and staple removal were
required on account of claimant's May 24, 1984 fall or that
either the marked degenerative changes found in the joint, the
recurring dislocation, or the problems with the staple were
conditions aggravated by that fall.
Likewise, Dr. Sprague noted, on May 27, 1981, that claimant
had radiation of pain down the medial aspects of his arm and
numbness and tingling involving his hands and fingers. Claimant
attributed those problems to his May 24, 1984 fall. Their
existence from three years prior to that incident undercuts
claimant's credibility as a reporter of his own pre- and
post-incident physical condition and symptomatology. Dr. Worrell
confirmed claimant's numbness and tingling upon physical
examination of May 8, 1986. Nevertheless, Dr. Worrell only
stated that claimant may have had injury to the brachial plexus
from all his recurrent injuries. He did not expressly attribute
the problems to the May 24, 1984 incident. The presence of the
symptoms prior to the 1984 incident, as noted, further indicates
that they should not be so attributed. Furthermore, Dr. Worrell
reported, on June 12, 1986, that electromyographic studies
revealed no nerve conduction abnormalities. All of the above
demonstrate that claimant has not established the requisite
causal connection between his May 24, 1984 incident and any
subsequent problems. That such a connection is not possible is
not disputed. The law, however, requires a probability and such
is not shown in this record.
As claimant has not prevailed on the causal connection
issue, we need not address the remaining issues of benefit and
medical payment entitlement. We note, however, that any
permanency due claimant would likely have been small. Claimant's
assigned impairment is five percent of the arm. Under the AMA
guides to impairment, such would translate to three percent of
the whole person. (We note that the impairment of five percent
of the arm was obtained under the orthopaedic guides and not
under the AMA guides. Further, no distinction was made as to
what percentage, if any, of that impairment related to claimant's
pre-May 24, 1984 condition.) Claimant is not now under a lifting
restriction. Dr. Durkee's November 13, 1984 medical report
belies claimant's contention that he is unable to get his hand
behind his head. The doctor does state that claimant is not able
to get his hand completely behind the small of his back, however,
indicating that claimant may not have altogether exaggerated that
complaint. However, that restriction does not appear to unduly
impair claimant in performing other work duties. Likewise, as
claimant attested to, he has a considerable number of marketable
clerical and medical skills. He is also a bright individual who
has completed a number of years of college and associate college
work. He is a younger worker who could well proceed with his
plans to obtain a nursing degree. For those reasons, it is
doubtful that claimant could have shown any industrial disability
resulting from the May 24, 1984 incident.
FINDINGS OF FACT
WHEREFORE, IT IS FOUND:
Claimant was employed by the University of Iowa Hospitals
and Clinics as a nursing assistant I, Department of Pediatrics,
Division of Developmental Disabilities on May 24, 1984.
Claimant's work shift began at 6:30 a.m. and ended at 3:30
p.m.
Claimant was assigned a parking space in the
University-owned parking lot.
The main entrance of the Department of Pediatrics hospital
school building was not open until 8:00 a.m.
Claimant used a side entrance to the Department of
Pediatrics hospital school building to enter to begin his work
shift.
The route from the assigned parking lot to the ancillary
entrance which claimant normally used required a walk downhill
through a grass-seeded area where construction was taking place.
It had rained throughout the night into the morning of May
24, 1984.
Claimant fell enroute to the hospital school building on the
morning of May 24, 1984 approximately 50 yards from the hospital
school building and approximately 100 yards from the entrance
claimant customarily used.
Claimant had had numbness and tingling involving his hands
and fingers as of May 27, 1981.
Claimant had fallen down stairs injuring his shoulders in
approximately 1979.
On July 9, 1981, claimant had a Du Toit stapling of the
right glenohumeral joint for recurrent anterior subluxation of
the right humeral joint.
On October 1, 1981, claimant had a superior staple removed
from the right glenoid.
Claimant had had limitation of right shoulder motion prior
to May 24, 1984.
As of May 24, 1984, claimant had mild tenderness of the
shoulder with limitation of motion.
X-rays of May 24, 1984 showed no evidence of dislocation,
but did reveal a staple extremely close to the anterior aspect of
claimant's glenohumeral joint.
Right shoulder arthroscopy of June 22, 1984 revealed
recurring dislocation and marked degenerative changes in the
(glenohumeral) joint.
Bristow Repair of the shoulder and removal of the staple in
the glenohumeral joint was performed on July 15, 1984.
Electromyographic studies of June 12, 1986 revealed no nerve
conduction abnormalities.
Claimant's permanent partial impairment is five percent of
the arm or approximately three percent of the body as a whole.
Claimant is a younger worker.
Claimant has marketable skills in the medical field as well
as in the clerical field. Claimant has completed three years of
coursework at either the university or the associate college
level.
Claimant no longer has medically-imposed lifting
limitations. Claimant's continuing inability to put his arm
behind his back does not appear to affect his ability to perform
work.
Claimant would be a good candidate to complete a degree in
nursing, as he desires.
Any industrial disability arising from claimant's injury,
had such been found, would have been minimal.
CONCLUSIONS OF LAW
THEREFORE, IT IS CONCLUDED:
Claimant has established a work incident of May 24, 1984,
which incident did arise out of and in the course of his
employment.
Claimant has not established that that incident resulted in
an injury which was causally related to claimed disability.
Claimant has not established any entitlement to healing
period, temporary total disability or permanent partial
disability benefits as a result of the incident of May 24, 1984.
Claimant has not established medical costs which are
compensable under section 85.27 as related to a compensable
injury.
ORDER
THEREFORE, IT IS ORDERED:
Claimant take nothing from this proceeding.
Claimant pay costs of this proceeding.
Signed and filed this 20th day of January, 1988.
HELEN JEAN WALLESER
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Ms. Janice M. Becker
Attorney at Law
528 South Clinton
P.O. Box 106
Iowa City, Iowa 52240
Ms. Shirley A. Steffe
Assistant Attorney General
Tort Claims Division
Hoover State Office Building
Des Moines, Iowa 50319
1100, 1104, 1107, 1108
Filed January 20, 1988
HELEN JEAN WALLESER
MARK E. DORPINGHAUS,
Claimant,
vs.
File No. 771007
UNIVERSITY OF IOWA HOSPITALS
AND CLINICS,
A R B I T R A T I 0 N
Employer,
and D E C I S I 0 N
STATE OF IOWA,
Insurance Carrier,
Defendants.
1100, 1104, 1107, 1108
Claimant, who slipped on wet ground while walking from
employer assigned parking lot to side entrance of his building,
had established an injury arising out of and in the course of his
employment where the main entrance was not available to claimant
at the hour at which he needed to arrive to work and where the
employer apparently acquiesced in the use of the side entrance
and the route claimant used from the lot to the side entrance.
Claimant did not establish that the work incident was causally
related to the claimed disability where claimant had had prior
shoulder injury with recurrent dislocations and surgeries and
where claimant's post work incident surgery consisted of repair
of remarked degenerative changes in the glenohumeral joint and
removal of a staple present in the joint as a result of prior
surgery.