BEFORE THE IOWA INDUSTRIAL COMMISSIONER
DEANA ASKELSON,
Claimant,
vs. File No. 771130
J & M INC. OF BADGER, A R B I T R A T I O N
Employer, D E C I S I O N
and
F I L E D
UNITED FIRE & CASUALTY COMPANY,
MAR 29 1989
Insurance Carrier,
Defendants. INDUSTRIAL SERVICES
INTRODUCTION
This is a proceeding in arbitration brought by the claimant,
Deana Askelson, against her employer, J & M Inc. of Badger, and
its insurance carrier, United Fire & Casualty Company, to recover
benefits under the Iowa Workers' Compensation Act as a result of
an injury sustained on July 23, 1984. This matter came on for
hearing before the undersigned deputy industrial commissioner at
Fort Dodge, Iowa on January 18, 1989. A first report of injury
was filed on August 6, 1984. A final report was received on
March 5, 1985 which final report indicates that claimant was paid
14 weeks of temporary total/healing period benefits and 12.5
weeks of permanent partial disability benefits as well as medical
benefits in the amount of $19,245.68. The record in this
proceeding consists of the testimony of claimant, of Kelly
Gonder, of Norman E. Moon, and of Herbert Kersten, M.D., as well
as of claimant's exhibits 1 through 7 and defendants' exhibits A
through K as identified on the parties' respective exhibits
lists.
ISSUES
Pursuant to the prehearing report and the oral stipulations
of the parties at hearing, the parties stipulated that claimant
sustained an injury on July 23, 1984 which arose out of and in
the course of her employment which was the cause of temporary and
permanent disability for which claimant has been paid all
temporary total/healing period and permanent partial disability
benefits to which she is entitled. The parties agreed that the
only issue remaining to be decided is whether claimant is
entitled to payment of certain medical costs, that is, costs for
treatment with Douglas S. Parks, M.D., at Iowa Methodist Medical
Center and related care as care authorized by the defendants, as
care reasonable and necessary for the treatment of claimant's
condition, and as care, the costs of which are fair and
reasonable.
REVIEW OF THE EVIDENCE
Claimant is a 24-year-old single woman with one child. She
sustained burns on the right side of her face, right side of her
neck, chest and breast as well as on her stomach and the right
side of her trunk and right underarm when a broiler exploded
during the course of her work as a cook for the defendant
employer. Immediately subsequent to the injury, claimant was
hospitalized at Trinity Regional Hospital for approximately two
months during which time Herbert Kersten, M.D., a Dr. LeValley,
and a Dr. Miller treated claimant . Claimant testified that she
received skin grafts and physical therapy intended to relieve
tightness and pulling of the scar tissue in the upper arm area.
She stated that her skin grafts did not increase right arm
mobility, but "greatly improved" the skin's appearance.
Claimant expressed her belief that her face was discolored
subsequent to her burn injury and reported that she was
self-conscious about her burn following her hospital release. No
visible scarring or discoloration was observed on claimant's face
at hearing. Claimant reported that she could wear clothing on
the burned areas of her body only subsequent to her hospital
release, but that clothing irritated the burned areas. She
stated that discomfort prevented her from wearing a bra.
Claimant reported that she saw Ralph Cram, M.D., at the
University of Iowa Burn Unit in January, 1985. She stated that
Dr. Cram recommended dermabrasion treatment at least two years
subsequent to her injury. Claimant later saw Gerald P. Kealey,
M.D., at the University of Iowa Burn Unit. She reported that Dr.
Kealey did not recommend dermabrasion as her scarring was too
deep. He did give her names of physicians qualified to perform
dermabrasion, however. Claimant subsequently saw Douglas Parks,
M.D., who performed tissue expansion procedures at Iowa Methodist
Hospital. Claimant stated that the procedures were carried out
in the right lower arm, in the chest below the breast and on the
right side of her trunk in an attempt to normalize the skin's
appearance. She agreed that all areas on which the procedures
were performed were covered with clothing save for the lower arm.
Claimant reported that the tissue expansion procedures had
increased her movement in the arm and had improved her appearance
although the effect on her appearance had not been as beneficial
as she had hoped. She reported that the procedures had decreased
her problems with not being outgoing and that she no longer found
clothing irritating although it was still uncomfortable to wear a
bra.
Claimant agreed that she had not advised defendants that she
was treating with Dr. Parks, but for a casual conversation with
her own insurance agent. She stated that Dr. Parks' bill as well
as the anesthesiologist's bill remain unpaid. She agreed that
defendants had paid all Trinity Regional Hospital and University
of Iowa medical bills and agreed that she had advised the insurer
of her Trinity and University of Iowa care.
Kelly Gonder identified herself as a friend of claimant and
reported that prior to her injury, claimant had been outgoing,
but subsequent to her injury, claimant's personality changed.
She reported that claimant has now "gotten better" insofar as she
is able to interact with persons other than her close friends.
She reported that claimant continues to wear long-sleeved shirts
in hot summer weather.
Norman E. Moon testified that he is supervisor for workers'
compensation claims with the insurance carrier. He reported that
the insurer had relied upon August 12, 1985 and December 18, 1985
letters of Drs. Cram and Kealey respectively stating that
claimant required no further treatment but for possible
dermabrasion. He reported the insurer was first aware that
claimant was treating with Dr. Parks when defendants' counsel
inquired regarding mileage payments for treatment with Dr. Parks.
Moon indicated that neither claimant nor her counsel ever
contacted the insurer regarding care with Dr. Parks even though
claimant's workers' compensation claim had been filed in
September, 1986.
Herbert Kersten, M.D., identified himself as a general
surgeon practicing in the Fort Dodge area since 1952. Dr.
Kersten stated that, while hospitalized at Trinity Regional
Hospital, claimant had had contracture in the anterior fold of
the right axilla which he characterized as shrinkage of scar
tissue in front of the fold that goes from the chest to the right
arm. The arm was manipulated and stretched and then dressed away
from the body in order to minimize the web formation. Dr.
Kersten stated that such contractures are usually but not always
permanently controllable. Dr. Kersten stated that, after
claimant's skin grafts had healed, claimant had normal arm
motion, but needed to stretch the arm tissue uncomfortably to
achieve that motion. Dr. Kersten testified that, following
claimant's graft, she had minimal scarring on her face and neck,
but did have significant scarring on the chest wall and arm. Dr.
Kersten reported that claimant had second degree burns on her
face, neck and arm and extensive third degree burns on the side
of her chest and near the breast. Dr. Kersten stated that a
graft over a third degree burn is essentially numb, but does
produce permanent impairment of sensation.
Dr. Kersten characterized claimant's tissue expansion
procedure as corrective plastic surgery primarily done to correct
impaired function and not primarily done for appearance's sake.
Dr. Kersten reported that he had examined claimant on
January 9, 1989. He reported that claimant's chest area
extending under the arm and into the back was "close to normal
except for appearance." He stated there was no visible
contracture, but minimal scarring. He characterized the risk of
future contracture as a "diminishing probability as time goes
by." Dr. Kersten stated that the tissue expansion procedure does
not really improve the skin's appearance, but for eliminating the
underlying contracture so that the skin adapts a more normal
contour. Dr. Kersten opined that, if the record shows that
contracture was again trying to form, the tissue expansion
procedure was justified. He opined that severe burns permanently
change the body's appearance and thereby affect an individual's
self-image and confidence. He stated it was appropriate to work
with those changes in dealing medically with a burn victim.
On August 12, 1985, Albert E. Cram, M.D., reported that
under the AMA Guides to the Evaluation of Permanent Impairment
for skin disorders, claimant had a class 2 impairment
representing a 12% permanent impairment of the whole person. He
stated he did not anticipate any additional or future surgical
procedure, but had prescribed an overhead pulley system to help
claimant exercise the burn contracture in the axilla which
contracture he characterized as extremely mild. On January 31,
1985, he recommended claimant be considered for dermabrasion two
years post surgery.
On December 18, 1985, Gerald P. Kealey, M.D., Assistant
Professor of Surgery at the University of Iowa, reported that
claimant's burn injury to the right anterolateral thorax was
fully healed and that she had no loss of motion of the right
shoulder. He reported that she had no scar contracture or loss of
function of the right upper extremity, but did have some
hypopigmentation of the grafted area over the right breast and
right anterior chest. He stated that claimant had no complaints
of itching or dryness and that there was no evidence of
hypertrophic scarring. Dr. Kealey reported claimant as wishing to
consider dermabrasion for cosmesis some time in the future.
On November 19, 1984, Dr. Kersten reported that claimant's
major sequelae of her burns were scarring of the chest wall, arm,
breast and contracture of the right axillary fold. He reported
that her graft donor sites had healed well with faint scarring
which would be permanent. The first and second degree burns on
the right side of her face and neck were reported as having
healed with very faint residual scarring that may fade further,
but which will leave some permanent scarring. He reported that
the deeper burns on the right anterior chest, right breast, right
axilla and right inner and anterior arm were all well healed with
considerable cosmetic scarring and with the development of an
early contracture along the right axillary fold. He then thought
that such would require revision the following Spring. On
January 29, 1985, Dr. Kersten advised claimant that she should
wait for her scars to stop shrinking before undergoing skin
grafting and revision. He stated, "[t]he bands which are forming
can then be correct [sic]."
On November 23, 1987, Dr. Parks of Plastic-Reconstructive,
Cosmetic & Hand Surgery, reported that claimant had significant
residual scarring on her chest, arm, and back. He further
reported the following:
She originally had some skin grafting done but now she has
significant residual scarring on her chest, arms and back.
At this time she presents to have this burn revised.
I counselled her in the various techniques available and at
this time tissue expansion under the normal skin next to the
burn area with expansion of the skin and excising the burn
and pulling this normal skin up seemed most appropriate in
her case. This she desires to have done to reconstruct her
chest wall to a more normal looking appearance. This should
allow her to function more effectively.
In an office note of March 10, 1988, Dr. Parks stated:
...the object is to get normal looking skin to cover most of
her back and side so she would look better in her clothes
and feel better.
In a note to United Fire & Casualty Company dated November
10, 1987, Dr. Parks stated the following in response to Norman E.
Moon's request that he advise who had referred claimant to him as
a patient:
Pt was referred by my office manager, as her surgeon in Iowa
City was gone.
Medical bills outstanding are apparently a bill of
Associated Anesthesiologists in the amount of $930.00; a bill of
Dr. Parks in the amount of $5,297.50; and, bills of Iowa
Methodist Medical Center in the amounts of $30.90 and $3,477.25.
On claimant's exhibit list, claimant lists an Iowa Methodist
Medical Center bill in the amount of $2,100.36. No exhibit
documenting such charge was submitted into evidence, however.
Claimant, by way of her exhibit 11, states that she has traveled
2,750 miles to Des Moines as expenses in this matter.
APPLICABLE LAW AND ANALYSIS
Our only issue is whether claimant is entitled to payment of
her medical costs and medical mileage expenses related to the
tissue expansion procedures which Dr. Parks performed.
Section 85.27 provides that employers furnish employees
reasonable surgical, medical, and hospital services and supplies
when an injury arises out of and in the course of the employment.
Medical treatment provided need not reduce impairment or
disability. Zimmerman v. L. L. Pelling Co., II Iowa Industrial
Commissioner Report, 462, 463 (App. Decn. 1982). The section
also provides that claimant shall be paid reasonable and
necessary transportation expenses incurred in the course of
receiving such medical services. The employer has the right to
chose the care. "The employee has the burden of showing the
treatment is related to the injury. Proof of the necessity of
the treatment may be found in the claimant's own testimony."
Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice,
section 15-1.
Where a designated physician refers a claimant to another
physician, the designated physician acts as the employer's agent.
It is not necessary then for defendants to authorize such
referral. See Kittrell v. Allen Memorial Hospital, 34th Biennial
Report of the Iowa Industrial Commissioner, 164 (1979).
Webster's Ninth New Collegiate Dictionary defines
"reasonable" as agreeable to reason; not extreme or excessive;
moderate; fair.
Defendants first contend that claimant's treatment with Dr.
Parks was not reasonable and necessary. We note that section
85.27 expressly states only that the treatment must be
reasonable, not that such be necessary. Nor can it be inferred
from the section or from the common definition of reasonable that
treatment must be absolutely necessary before such is permissible
as reasonable treatment. Claimant reports that the tissue
expansion procedure which Dr. Parks performed increased her arm
movement. Objective records would suggest that claimant received
relatively little, if any, benefit by way of increased arm
movement given the extremely mild contracture which Dr. Cram
reported in August of 1985 and the lack of any loss of motion in
either the right shoulder or the right upper extremity which Dr.
Kealey reported in December 1985. Hence, it appears that the
real benefit, if any, derived from the tissue expansion procedure
related to claimant's appearance and self-image. Indeed, while
Dr. Kersten testified that the tissue expansion procedure was
primarily corrective plastic surgery and to increase claimant's
arm movement, Dr. Parks who performed the tissue expansion
procedure apparently felt that the primary purpose was for
cosmesis. Dr. Parks stated, "The objective is to get normal
looking skin to cover most of her back and side so she would look
better in her clothes and feel better."
Defendants apparently assert that if the primary purpose was
cosmesis, the treatment was not reasonable. They appear to rely
upon the fact that the areas affected can generally be covered
with clothing. Defendants argument is not well taken. A sense
that one's body appears normal and need not be constantly covered
is generally important to most individuals' well being. Dr.
Kersten reported that changes in physical appearance and
resulting changes in self-image and individual confidence were
typical sequelae following burn injuries. He opined that it was
appropriate [medically] to work with such changes. Both claimant
and Kelly Gonder testified that claimant had a decrease in
self-confidence and decreased ability to interact with
individuals other than close personal friends following her burn
injury. Both reported improvement in claimant's self-confidence
and in her ability to interact interpersonally following the
tissue expansion procedures. Such occurred even though the
results of the procedure were not cosmetically as effective as
claimant had hoped. Hence, the tissue expansion procedure
benefited claimant overall in that it increased her
self-perception of her physical appearance and thereby increased
her psychic well-being.
Additionally, claimant reported that she had had irritation
of her burned skin from her clothing following her injury. She
reported that this improved subsequent to the tissue expansion
procedure. While Dr. Kersten reported that third degree burn
areas are essentially numb, we cannot say that it is not possible
that third degree burn areas would be irritated through contact
with clothing. Therefore, the tissue expansion procedure was
reasonable treatment for such irritation.
Defendants also argue that the tissue expansion procedure
was not authorized. Mr. Moon testified that he relied upon Dr.
Kealey's and Dr. Cram's opinions that the only potential
procedure which claimant might undergo would be dermabrasion.
Claimant testified that Dr. Kealey did not recommend
dermabrasion. He did report her desire to have such treatment,
however, and did give her the name of surgeons who perform such.
As defendants correctly note, Dr. Cram had indicated that
dermabrasion would be appropriate. Additionally, Dr. Kersten had
suggested in November, 1984, that revision for contracture would
be necessary the following Spring. Nothing in the record
indicates that defendants expressly advised claimant that they
would not permit treatment either by way of revision of the
contracture or by way of dermabrasion primarily for cosmesis.
Dr. Kealey, whom defendants apparently authorized claimant to
see, gave claimant Dr. Parks' name. In the absence of an
expressed advisement of defendants that cosmesis treatment was
not authorized, Dr. Kealey's reference to Dr. Parks may be
considered a treating physician's referral to another physician.
Dr. Parks elected tissue expansion procedure over dermabrasion as
a means of cosmetically improving claimant's appearance. The
right to chose care does not extend to defendants the right to
substitute their nonmedical judgment as to appropriate treatment
for the judgment of a qualified and authorized physician. We
find the tissue expansion procedure authorized as Dr. Kealey
referred claimant to Dr. Parks and Dr. Parks elected to perform
tissue expansion procedure over dermabrasion in order to achieve
the contemplated result of improving claimant's overall
appearance and level of functioning.
Defendants also contended that the cost of claimant's tissue
expansion procedure was not fair and reasonable. While minimal
evidence was presented on that point, that evidence presented
suggests that the costs were fair and reasonable and typical of
costs in the state of Iowa for similar procedures. No contrary
evidence was offered. The costs are found to be fair and
reasonable and defendants are ordered to pay those costs, but for
the Iowa Methodist Medical Center cost of $2,100.36 which cost is
not supported by appropriate documentation.
FINDINGS OF FACT
WHEREFORE, IT IS FOUND:
Claimant sustained burns on the right face, right neck,
chest and breast as well as her stomach and her right trunk and
right underarm when a broiler exploded during the course of her
employment as a cook for defendants.
Claimant was hospitalized for two months during which time
she received skin grafts and physical therapy intended to relieve
tightness and pulling of the scar tissue of the upper arm area.
Claimant's face and neck burns were first and second degree
burns; her other burns were second and third degree burns.
Claimant has no readily discernible scarring or
discoloration about her face or neck.
Subsequent to her burn injury, clothing irritated the burned
areas on claimant's body.
Claimant had an extremely mild contracture in the anterior
fold of the right axilla.
Claimant had no loss of motion in the right upper extremity
or the right shoulder on account of her mild contracture.
Claimant did experience pain in achieving normal range of
motion.
Subsequent to her burn injury, claimant was self-conscious
about her appearance and withdrew from interpersonal interaction
with all but close friends.
Changes in physical appearance and resulting change in
self-image and confidence are normal sequelae following a burn
injury.
It is appropriate to treat such changes medically.
Dr. Kersten recommended revision of claimant's contracture
in November, 1984.
Dr. Cram opined that dermabrasion for cosmesis would be
appropriate approximately two years subsequent to claimant's
injury.
Dr. Kealey also reported claimant wished to consider
dermabrasion for cosmesis some time in the future.
Dr. Kealey supplied claimant with names of physicians
capable of performing dermabrasion.
Dr. Parks' name was among those Dr. Kealey supplied
claimant.
Dr. Kealey was an authorized physician.
Defendants did not expressly instruct claimant that she
could not undergo dermabrasion for cosmesis.
Dr. Kealey's supplying claimant with Dr. Parks' name was a
referral to a subsequent physician by an authorized physician.
Dr. Parks made a medical determination that tissue expansion
was more appropriate than dermabrasion for claimant's condition.
Defendants authorized claimant's tissue expansion
procedure.
Costs with Associated Anesthesiologists, with Dr. Parks, and
with Iowa Methodist Medical Center as well as medical mileage
costs are within the norm for such costs within the state of
Iowa.
CONCLUSIONS OF LAW
THEREFORE, IT IS CONCLUDED:
Claimant has established that her treatment with Dr. Parks
and related treatment was reasonable and necessary treatment for
her burn injury; was authorized by defendants; and, that the
costs of such treatment were fair and reasonable.
Claimant has established that she is entitled to payment of
costs with Associated Anesthesiologists, with Dr. Parks and with
Iowa Methodist Medical Center, in the amounts listed in the order
below.
Claimant has established that she is entitled to payment at
the appropriate rate for 2,750 miles traveled in the course of
treating her work-related injury with tissue expansion
procedure.
ORDER
THEREFORE, IT IS ORDERED:
Defendants pay the following medical costs:
Associated Anesthesiologists $ 930.00
Douglas Parks, M.D. 5,297.50
Iowa Methodist Medical Center 3,508.15
Defendants pay claimant mileage expenses totalling two
thousand seven hundred and fifty (2,750) miles at the rate of
twenty-four cents ($.24) per mile totalling six hundred sixty and
00/100 dollars ($660.00).
Defendants pay costs pursuant to Division of Industrial
Services Rule 343-4.33.
Defendants file a final payment report when this award is
paid.
Signed and filed this 29th day of March, 1989.
HELENJEAN WALLESER
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. William H. Habhab
Attorney at Law
1216-A Central Avenue
Fort Dodge, Iowa 50501
Mr. Neven J. Mulholland
Attorney at Law
600 Boston Centre
P.O. Box 1396
Fort Dodge, Iowa 50501
2505, 2700
Filed March 29, 1989
HELENJEAN WALLESER
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
DEANA ASKELSON,
Claimant,
vs. File No. 771130
J & M INC. OF BADGER, 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,
Insurance Carrier,
Defendants.
2505, 2700
Claimant sustained third degree burns on her right trunk,
right underarm and on and about her right chest and breast which
burns arose out of and in the course of her employment.
Subsequent to appropriate hospitalization and medical treatment
including skin grafts and physical therapy, claimant had
significant scarring in those areas. She also had extremely mild
contracture in the anterior fold of the right axilla. Claimant
underwent tissue expansion procedure to improve the appearance of
the burned area. Defendants argued that such procedure was not
reasonable and necessary care and was not authorized. One
physician had advised dermabrasion for cosmesis while another
authorized physician had reported claimant's desire for
dermabrasion for cosmesis and had given claimant the names of
physicians who could perform dermabrasion. The recommended
physician with whom claimant elected to treat chose to perform
the tissue expansion rather than dermabrasion. Held that
claimant's treatment for cosmesis was reasonable treatment in
that it improved claimant's self-perception of her physical
appearance and permitted her to better interact interpersonally,
areas in which she had experienced problems subsequent to her
burn injury. Held that defendants who were aware of the
recommendation for dermabrasion and who had not expressly advised
claimant that they would not permit that procedure could not
argue they had not authorized the tissue expansion procedure when
the physician whom claimant saw on referral from an authorized
physician elected to perform that procedure to accomplish the
same result as had been contemplated by the recommended
dermabrasion. Held on the limited evidence available that the
costs of claimant's tissue expansion procedure were within the
norm in the state of Iowa and were fair and reasonable costs.
2505, 2700
Filed March 29, 1989
HELENJEAN WALLESER
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
DEANA ASKELSON,
Claimant,
vs. File No.
771130
J & M INC. OF BADGER, 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,
Insurance Carrier,
Defendants.
2505, 2700
Claimant sustained third degree burns on her right trunk,
right underarm and on and about her right chest and breast which
burns arose out of and in the course of her employment.
Subsequent to appropriate hospitalization and medical treatment
including skin grafts and physical therapy, claimant had
significant scarring in those areas. She also had extremely mild
contracture in the anterior fold of the right axilla. Claimant
underwent tissue expansion procedure to improve the appearance of
the burned area. Defendants argued that such procedure was not
reasonable and necessary care and was not authorized. One
physician had advised dermabrasion for cosmesis while another
authorized physician had reported claimant's desire for
dermabrasion for cosmesis and had given claimant the names of
physicians who could perform dermabrasion. The recommended
physician with whom claimant elected to treat chose to perform
the tissue expansion rather than dermabrasion. Held that
claimant's treatment for cosmesis was reasonable treatment in
that it improved claimant's self-perception of her physical
appearance and permitted her to better interact interpersonally,
areas in which she had experienced problems subsequent to her
burn injury. Held that defendants who were aware of the
recommendation for dermabrasion and who had not expressly advised
claimant that they would not permit that procedure could not
argue they had not authorized the tissue expansion procedure when
the physician whom claimant saw on referral from an authorized
physician elected to perform that procedure to accomplish the
same result as had been contemplated by the recommended
dermabrasion. Held on the limited evidence available that the
costs of claimant's tissue expansion procedure were within the
norm in the state of Iowa and were fair and reasonable costs.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
MILLIE DRAPER, n/k/a BRUHN,
Claimant, File Nos. 771230
806153
vs.
A R B I T R A T I O N
WILSON FOODS CORPORATION,
D E C I S I O N
Employer,
Self-Insured, F I L E D
Defendant.
MAY 24 1989
INDUSTRIAL SERVICES
STATEMENT OF THE CASE
These are proceedings in arbitration brought by claimant
Millie Draper against self-insured defendant employer Wilson
Foods Corporation to recover benefits under the Iowa Workers'
Compensation Act as the result of injuries sustained on May 25,
1984 (771230) to the left shoulder and on May 8, 1985 (806153) to
the right shoulder. This matter came on for hearing before the
undersigned in Storm Lake, Iowa, on January 3, 1989. The matter
was considered fully submitted at the close of hearing. Both
parties subsequently filed briefs.
The record in the proceeding consists of claimant's exhibits
1 through 63, defendant's exhibit A, and the testimony of the
following witnesses: Claimant, Dan Hasty, Ron Libolt, Tim Bruhn
and Dwayne Aduddell.
ISSUES
Pursuant to the prehearing report submitted by the parties
and approved by the deputy in case number 806153, the parties
have stipulated: To the existence of an employment relationship
at the time of the injury; that claimant sustained an injury on
May 8, 1985, arising out of and in the course of that employment;
that the injury caused temporary disability of two weeks plus two
days; that the appropriate rate of weekly compensation is
$195.33; that defendant is entitled to credit for 2 weeks 2 days
of temporary total disability and 12.5 weeks of permanent partial
disability voluntarily paid claimant at the stipulated rate.
The following issues in case number 806153 are presented for
determination: Whether the work injury caused permanent
disability; the extent of claimant's entitlement to compensation
for permanent disability, if liability be found; whether
claimant's disability, if any, is a scheduled member disability
or an industrial disability to the body as a whole; the extent of
claimant's entitlement to medical benefits under Iowa Code
sections 85.27 and 85.39; taxation of costs.
In file number 771230, the parties stipulated: To the
existence of an employment relationship at the time of the
injury; that claimant sustained an injury on May 25, 1984 arising
out of and in the course of that employment; that the injury
caused temporary disability during a period of recovery; that the
appropriate rate of weekly compensation is $195.33; that
defendant is entitled to credit for 56 5/7 weeks of temporary
total disability and 67.5 weeks of disputed compensation paid
voluntarily to claimant at the stipulated rate.
In case number 771230, the following issues are presented
for determination: Whether the work injury caused permanent
disability; the extent of claimant's entitlement to temporary
total disability or healing period benefits (claimant contending
that the healing period ended on January 5, 1987 and employer
contending that the healing period ended July 7, 1986); the
extent of claimant's entitlement to compensation for permanent
disability; whether permanent disability, if found, is a
scheduled member disability or an industrial disability to the
body as a whole; the commencement date for permanent partial
disability, if awarded; the extent of claimant's entitlement to
medical benefits under Iowa Code sections 85.27 and 85.39;
taxation of costs.
REVIEW OF THE EVIDENCE
Claimant testified that she was born on February 3, 1955;
therefore, she had nearly reached her 34th birthday by the date
of hearing. She indicated that she graduated from high school in
1973 with very good grades. Since then, she has held positions
with only two employers. She worked approximately six years for
a farm equipment manufacturer, being engaged in factory chores
such as painting and assembly. She resigned that employment to
begin work with defendant Wilson Foods effective June 7, 1979.
Wilson Foods is a meat packing company that operates a pork
plant in Cherokee, Iowa. Claimant began her work boxing hot
dogs, but after three months was transferred to the kill floor
where she worked until 1986. Her hours varied from as few as 36
hours per week during a business downturn in 1983 to as many as
60 per week. On the kill floor, claimant cleaned chitterlings,
tied and washed guts, and for the last three to four years worked
as a middle gut puller. This involved pulling a membrane apart
approximately 125 times per hour. The motion used is not unlike
a swimmer doing the breast stroke.
Claimant developed pain in the left shoulder on May 25, 1984
while pulling guts. The pain began in her shoulder blade then
moved to the front of the shoulder joint and down her upper arm,
but also into the body toward her breastbone. She first saw the
plant nurse, then was referred to Keith Garner, M.D., the company
physician, who diagnosed muscle strain.
Dr. Garner eventually referred claimant to John Connolly,
M.D. She was seen by Dr. Connolly on August 2, 1984. Dr.
Connolly wrote on that date:
When I examined her, she was a cooperative young lady with
no evidence of deformity in the shoulder. The shoulder
joint was tender on external rotation and abduction, but she
had no signs of rotator cuff tendonitis; that is, she had no
pain on resisted external rotation and abduction. I did,
however, feel on palpating and maneuvering the left shoulder
that I could subluxate the head of the humerus anteriorly.
This caused a click and reproduced her symptoms, and, in
fact, brought tears to her eyes.
I think your diagnosis was correct, that she does have
anterior shoulder subluxation. This is not a muscular
problem and I do not think would be amenable to merely
exercises. I think she has stretched out the front of the
glenoid labrum and this needs to be repaired. I discussed
this with her and she wanted to go ahead and have something
done with it as soon as possible since she is so
symptomatic. She says the popping out is occurring at least
once or twice per day, so we will have her admitted to the
hospital next week and perform the shoulder repair on
Tuesday. I will keep you informed of her progress.
Dr. Connolly performed surgery on claimant's left shoulder
on August 7, 1984. The surgery was known as a Bankart repair of
the left shoulder based on a diagnosis of osteochondritis
dissecans, left humeral head, anterior subluxation, left
shoulder. Dr. Connolly's surgical notes show:
... A shoulder-strap incision, extending from just lateral
to the coracoid and over the top of the shoulder extending
for approximately 4 inches, was completed. The skin and
subcutaneous tissues were sharply incised and hemostasis was
maintained with electrocautery. Deltoid was displaced
laterally with a thin slip displaced medially. The
deltapectoral was incised longitudinally and the coracoid
process was identified. The conjoined tendon was released
at the coracoid process and the anterior aspect of the
shoulder joint was identified. Subscapularis was released
off its insertion into the lesser tuberosity and the capsule
was incised and separated from the subscapularis.
Examination of the inner aspect of the joint revealed the
following pathological changes: l) There was a 2 cm. x 1
cm. loose, articular cartilage piece which was removed from
the joint. There was a 2xl cm. area over the
anterior-superior aspect of the humeral head which was
covered with fibrocartilage but depressed approximately 3mm.
There was a large Bankart lesion over the anterior aspect of
the glenoid. Following this, a Bankart repair was done
utilizing the Hall drill to place two holes in the anterior
aspect of the glenoid. 2-0 Tevdek sutures were placed here
and the capsule was tied snuggly down to the arm so as to
limit external rotation at neutral. Subscapularis was
imbricated over this and the arm was noted to be unable to
externally rotate past neutral.
Upon final discharge, Dr. Connolly's discharge summary makes
reference to a diagnosis of recurrent anterior subluxation of the
left shoulder with osteochondritis dissecans of the left humeral
head. The surgical procedure is referred to as Bankart repair
with imbrication of the subscapularis tendon on the left side.
The wound was healing well and claimant was discharged with
follow-up in one week recommended.
Claimant described the incision as located in the crease
where the arm meets the body and noted that Dr. Connolly
prescribed exercises such as touching both arms to a clasp behind
her head, although she was unable to do so.
Claimant also testified that she believes her shoulder has
not improved in the four years following surgery.
In a letter to Dr. Garner dated February 28, 1985, Dr.
Connolly indicated that claimant should be able to return to work
within the next month to see if the shoulder could hold up and
anticipated that claimant would have a permanent functional
impairment to the shoulder of 15%. Following further complaints,
Dr. Connolly wrote again to Dr. Garner on July 25, 1985,
indicating that claimant at that time still wished to return to
work, that her left shoulder was continuing to improve, and
recommending that claimant return to work on a half-day basis.
Claimant also saw Scott B. Neff, D.O., from March, 1986
until April, 1987. Dr. Neff's letter to Dr. Garner of March 24,
1986 indicated that claimant was having myofascial pain in the
right scapula and posterior aspect, but that he would not produce
any symptoms or signs of instability. He found claimant normal
on the right side with muscle soreness and no impingement. He
noted that claimant was at that time working a maximum of five
hours per day. Dr. Neff mentioned his intent to prescribe a TENS
unit, which he eventually did. He further noted that "job change
might be a good idea." Claimant continued working part-time
until May 22, 1986, when Dr. Neff took her off work because of
continued myofascial soreness; Dr. Neff found crepitus with
forward flexion and extension.
Dr. Neff's letter to Dr. Garner of June 16, 1986 noted that
CAT scan and arthrogram show postsurgical changes with no
evidence of any surgical lesion. He was of the view that
claimant was certainly having muscular soreness with job change
and position change, but felt this should be temporary. Dr. Neff
expressed the view that claimant had muscle soreness on the right
also. He noted flattening along the head of the left humerus as
compatible with the previous dislocation and recommended a
restriction from external rotation on the left side.
Dr. Neff's letter of June 23, 1986 noted claimant's right
shoulder had a full range of motion with minimal symptoms, noted
also that the left arm showed postsurgical changes, and released
claimant to work the next Monday (a standard calendar shows this
to be June 30, 1986), but noting further that "it would be a good
idea for her to avoid a job which entails repetitive
time-after-time similar occupation."
Claimant was also seen on June 23, 1986 for a functional
evaluation of the left shoulder by Thomas W. Bower, L.P.T. Mr.
Bower noticed that claimant demonstrated a markedly reduced left
upper extremity strength with normal strength in the other
extremities. With reaching, claimant was able to push overhead a
weight of only 10 pounds. His summary:
It appears this patient is going to be markedly limited in
her activities [sic] that require greater than 70 to 75
degrees of shoulder elevation. This is going to markedly
restrict the amount of weight or repetitious activity that
she can perform above this range of motion. She should
have, in my opinion, no difficulty in performing activities
at waist height. It appears, again in my opinion that the
activities she was performing prior to her surgery, should
present no difficulties.
I would establish a weight maximum for lifting of 45 pounds
as well as it is performed at no higher level than 33
inches. Overhead work should be excluded completely from any
job description. Pushing and pulling appears not to be a
restrictive quality.
I have advised the patient that she should be able to
perform those duties as long as they are at waist height.
Whether repetitious activity at high speed work will cause
problems, may have to be evaluated in the future.
On June 30, 1986, Dr. Neff rated claimant's impairment of
the left shoulder at eight percent of the left upper extremity.
However, Dr. Neff saw claimant again on October 20, 1986, and
found that claimant's shoulder had become markedly worse with
significant restriction of motion. Claimant had a definite
tenderness over the subacromial bursa. He considered the
shoulder definitely abnormal and recommended a range of motion
treatment of the left shoulder under anesthetic to lyse
adhesions.
A range of motion under anesthetic and intraoperative
arthrogram using fluoroscopy was performed by Dr. Neff on October
23, 1986. Unfortunately, motion obtained was minimal. Dr. Neff
wrote Dr. Garner on November 20, 1986, noting that even though he
had tried hard, he was unable to break or free or lyse any of the
adhesions about the left shoulder. Dr. Neff noted that he did
not believe claimant's situation was improvable and that it
certainly had not changed since the original shoulder surgery.
Dr. Neff wrote to Dr. Garner again on January 5, 1987 after
seeing claimant again for follow-up. He believed at that time
that claimant had reached a stable situation with regard to the
left shoulder and further improvement was unlikely. He
recommended that the ]eft arm be used at or below shoulder level.
With regard to claimant's right shoulder, he indicated that
claimant was having more and more difficulty especially because
of the necessity to lift boxes above shoulder height and do most
of the work with the right shoulder. He recommended that
claimant continue working, and noted that one or both arms should
be used at or below shoulder height. On January 12, 1987, Dr.
Neff wrote Dr. Garner again, opining that claimant had sustained
a 15% impairment to the left upper extremity as a result of her
shoulder surgery and could not be expected to significantly
improve. Dr. Neff characterized his rating as "permanent."
However, Dr. Neff wrote again in a subsequent undated letter
noting that Dr. Garner had understandable confusion about the
earlier rating and noted that based on Mr. Bower's further range
of motion studies and Cybex curves, he opined that claimant now
had a 27% impairment to the left upper extremity which was "not
convertible" to a body as a whole rating.
Dr. Neff also wrote with Mr. Bower to claimant's attorney on
January 14, 1987, noting that claimant's functional capacity
evaluation demonstrated a 5% impairment to the right upper
extremity and a 27% impairment to the left upper extremity.
Further: "[t]hese would be specific scheduled members and would
not be converted into a body as a whole since the injury itself
does not encompass the body as a whole." On April 27, 1987, Dr.
Neff rather confusingly reiterated the permanent impairment "as
stated in the communication of 12 January 1987." If it was truly
his intent to reduce claimant's impairment rating back to 15% as
per that communication, as opposed to his undated but subsequent
correction, no explanation for the change was given. Dr. Neff
also indicated that he did not believe there was any way to
improve claimant's function and did not recommend further
surgery. He also thought it was a good idea for claimant to work
with a counselor regarding changing jobs.
Claimant also testified that she saw Richard Murphy, M.D.,
an orthopaedic surgeon, on two occasions. She indicated that Dr.
Murphy had not prescribed further treatment, but had recommended
that she leave the meatpacking industry. Dr. Murphy wrote on
September 20, 1985 to claimant's attorney after evaluation. He
opined that claimant had sustained a total 27% impairment of the
upper extremity (as he made reference to shoulder surgery, this
is presumably the left upper extremity). After a follow-up
evaluation, Dr. Murphy wrote again to claimant's attorney on May
8, 1986. He noted that x-rays of the right shoulder showed no
evidence of acute or chronic bony changes and diagnosed chronic
tendonitis with full range of motion in the right shoulder. He
was of the view that claimant had not at that time sustained any
degree of permanent impairment to the right shoulder, but
reiterated that based on range of motion measurements, claimant
had sustained a 27% impairment of the left upper extremity.
Claimant also saw A. J. Wolbrink, M.D., an orthopaedic
surgeon. His letter to claimant's attorney of July 1, 1986 noted
that claimant had pain in both shoulders (predominately anterior
in the left) and noted crepitation in the left shoulder upon
range of motion examination. "Tenderness was predominately about
the acromion and not the AC joint." There was also crepitation
but only mild pain in the right shoulder, which seemed to have
essentially normal strength. X-rays of the left shoulder showed
depression of the central portion of the humeral head and some
irregularity, while the right shoulder was normal. Dr. Wolbrink
opined that claimant had a significant impairment of the left
shoulder due to post-traumatic arthritis and mild impairment due
to tendonitis in the right shoulder. He opined that claimant had
a 23% permanent impairment of the left shoulder (extrapolated to
a whole person impairment of 14%) and less than a 5% impairment
of the right shoulder. In notes of October 28, 1986, Dr.
Wolbrink noted his impression of chronic tendonitis of the left
shoulder and suggested that claimant's problems could not be
expected to entirely settle down and that claimant should not be
overly vigorous with an exercise program.
Claimant also testified credibly that Dr. Wolbrink
affirmatively advised her to leave her employment in the
meatpacking industry.
Claimant also saw Stephen G. Taylor, M.D., on two or three
occasions. In a report of July 21, 1987, Dr. Taylor noted that
x-rays showed some mild glenohumeral arthritis and a central
defect in the humeral head. He had an impression of
post-traumatic arthritis, left shoulder with ankylosis. He noted
that surgical intervention to decompress the subacromial space
and possibly an arthrotomy to release adhesions offered a
possibility of a better range of motion and reduction of pain,
but that success could certainly not be assured.
Dr. Taylor referred claimant to the Mayo Clinic in
Rochester, Minnesota, where she was seen by Robert H. Cofield,
M.D., an orthopaedic surgeon. Dr. Cofield recommended continued
conservative treatment on his interpretation that claimant had a
mild to moderate arthritic problem of the glenohumeral joint with
moderate impairment of shoulder function.
Dr. Cofield's notes of January 21, 1988 find claimant
suffering a mild atrophy of the left supraspinatus and deltoid
muscles with range of motion limitation and subacromial and
glenohumeral crepitus. His impression was of degenerative
arthritis status post loose body removal and Bankart repair. Dr.
Cofield noted that claimant had changed her work to one that
involves use of her arms and her hands in front of her and seemed
able to do that all right. There was no indication of residual
instability of the shoulder joint.
Claimant testified that Dr. Cofield advised he could do a
shoulder replacement, but was hesitant to do so due to claimant's
age, that he advised her to keep up medications and physical
therapy and to continue to work, but claimant understood this
recommendation to be that she work within Dr. Neff's
restrictions. She also noted that Dr. Neff has never told her
that restrictions against repetitive work had been lifted. She
indicated that Dr. Neff advised her to continue working, but made
clear that she had restrictions concerning the range of motion of
her shoulder in addition to avoidance of repetitive work. In
advising her as to the range of motion restrictions, claimant
further testified that Dr. Neff asked her to visualize a box-like
area in front of her person in which work with her hands could be
performed, but not otherwise. Claimant has not seen Dr. Neff
since mid-1987. She testified that she declined surgery offered
by Dr. Neff to remove scar tissue and bone spurs, primarily
because he believed that the scar tissue and bone spurs would
redevelop despite surgical intervention.
With regard to claimant's right arm, she testified that it
was first injured on May 8, 1985. She blames overusing the arm
in an attempt to protect the left shoulder. At the time, she was
employed in a part-time position pulling small guts. Claimant
testified that at present, she suffers pain in the shoulder blade
and down her arm approximately one-half way to her elbow and not
across the front of the body toward her breastbone. This pain is
intermittent, although she has never regained full range of
motion in the right arm.
Claimant believes that she has lost strength in both upper
extremities estimating a 3%-4% loss to the right arm and 10% to
the left. As an example, she testified that she was unable to
lift an eight-pack of soda pop bottles with the left arm. She
normally takes two pain medications and one anti-inflammatory
medication on a daily basis.
Claimant is now continuing to work for defendant on the
"service board." This is at her own election. Service board
employees are floated around to many different jobs as the need
might arise and do not "own" any particular job. For example,
claimant's husband has less seniority, but works full-time
because he owns a regular job.
In 1988, claimant worked in maintenance, press, pump,
pace-boning, sausage and McDonald loins. She felt that these
jobs were mostly within the restrictions set forth by Dr. Neff,
perhaps to the extent of 75%. It is claimant's intent to
continue working until least June, 1989 so as to gain eligibility
for a ten-year seniority pension.
Claimant is now earning substantially less money than was
the case before her first injury. On cross-examination, it was
made known that this was in large part due to a new union
contract that took effect in 1985 or 1986. Wages apparently were
lowered from $10.69 per hour to $6.50, although they have since
risen to $8.50.
Claimant indicated that the pulling guts job was eliminated
when the kill floor was closed in May, 1986. She had returned to
the same job on a part-time basis following her April, 1985
return to work. After the kill floor was shut down, claimant
returned to work in approximately July, 1986, but did not then
own a job due to the reorganization. Claimant had injured her
shoulder on the McDonald loins job in May, 1986 immediately after
the kill floor had shut down; she was taken off work until July,
1986 and then continued employment until October when she
underwent the unsuccessful manipulation at the hands of Dr. Neff.
Dr. Neff did not release her until approximately eight weeks
after that manipulation.
Claimant agreed on cross-examination that she has not bid
for other jobs since beginning her service board work following
the return to work after the failed manipulation.
Claimant agreed that she did not in 1988 take herself off
work by reason of shoulder problems, although she stabbed her
forearm in an unrelated incident and was off work for
approximately seven weeks. She agreed that she last saw Dr.
Cofield in August, 1988 and that he advised her to return to
work; as claimant had advised Dr. Cofield of Dr. Neff's
restrictions, it was her understanding that his advice to return
to work was in accordance with those restrictions.
Dan Hasty testified that he is a physical therapist employed
at Cherokee Hospital, who also does work for defendant, and has
been so employed for 11 1/2 years. His formal education
includes a bachelors degree in general science, training as a
physical therapist, passing a licensing examination and
undergoing 20 hours of annual continuing education. For the last
five and one-half years, Hasty has worked with injured employees
of defendant and for the last two and one-half years has gone to
defendant's plant three times per week to provide services.
Mr. Hasty indicated that he had seen claimant some 12 weeks
after the August, 1984 surgery upon Dr. Garner's prescription.
He has treated claimant regularly for left shoulder problems with
heat, ice, ultrasound, electricity, range of motion exercises and
strengthening exercises. He has also worked with claimant's
right shoulder, but to a much lesser extent. He described the
right shoulder as having limitations, but not nearly so severe,
and actually somewhat mild. A courtroom demonstration of
claimant's limited range of motion was undertaken. Claimant has
only 80 degrees motion in front of her body parallel to the floor
(of a possible 180 degrees) and 45-50 degrees (of 90 degrees)
active range of motion in external rotation.
Ron Libolt testified that he is a union vice-president for
this unionized plant. He stated that there are now approximately
500 employees, and that claimant's seniority number is 359. Jobs
are bid on the basis of seniority.
He described claimant as a member of the service board, or
"floaters" who substitute for employees who call in sick or are
on vacation. Service board members have no choice as to which
job might be assigned.
Mr. Libolt testified that he is familiar with all the jobs
defendant has for which claimant may be qualified. He stated
that all of those jobs include repetitive motion. Further, Mr.
Libolt stated that he knows of no jobs available to persons with
claimant's level of seniority that would allow an individual to
work in a "small box in front" of the body as described by Dr.
Neff to claimant. He indicated that defendant has consistently
attempted to assign claimant to jobs beyond her restrictions,
although claimant has often tried those jobs anyway. However, he
conceded on cross-examination that he was aware that the
physician claimant saw at Mayo Clinic advised that claimant could
continue doing the same job.
Tim Bruhn testified that he is now married to claimant and
works himself for defendant on the ham boning line. His
seniority is approximately 60 days less than claimant's.
Mr. Bruhn worked all of 1988 at a repetitive job on a
full-time basis, although he has less seniority than claimant.
Mr. Bruhn testified that claimant frequently wakes up at
night in pain, as he knows since he has lived with her for
approximately eight years. He indicated that claimant no longer
plays softball and volleyball due to her shoulder problems.
Dwayne Aduddell testified that he is defendant's employment
manager. He described how to interpret defendant's exhibit A,
which is an attendance summary. He testified that service board
employees sometimes have the option to pass up work. On
cross-examination, he conceded that claimant could have had the
job now held by Tim Bruhn,.but for her injuries.
Dr. Richard Murphy testified by deposition taken April 10,
1986. He testified that he had estimated the impairment of the
left upper extremity at 27%, and that he made use of the American
Medical Association's Guides to the Evaluation of Permanent
Impairment in so doing. He agreed that the 27% impairment
translated into a 16% impairment of the whole person. A review
of the guides shows that this conversion is accurate. His
examination consisted of taking x-rays, taking claimant's
history, and performing a physical examination.
Dr. Adrian Wolbrink also testified by deposition taken
November 17, 1988. He agreed that he had first seen claimant on
June 30, 1986. Based upon the history he took, the examination,
and x-rays, he agreed that he basically concurred with Dr.
Connolly's diagnosis. As to causation, Dr. Wolbrink testified:
Q. All right. Doctor, Millie Draper would testify in this
matter that she is approximately 33 years old at the present
time, that she commenced working in a meat packing plant
known as Wilson Foods sometime in the calendar year 1979,
that she had no physical symptoms, pain, or injuries known
to her with her left or right shoulder, and that she worked
eight hours a day for approximately five years, up to May
1984, where she did repetitive motion with her hands in a
job called pulling guts out in front of her where she
basically put both of her hands in fairly close proximity
out in front of her, with the hog gut, and basically
straightened it out, pulling those arms out away in
something that I believe would approximate a breast type
swimming stroke.
And my statement to you, Doctor, is do you have an opinion
as to whether that activity performed for that length of
time would be a substantial factor in producing this
subluxation of the shoulder that Doctor Connolly has
referred to in his letter, which I have elated to you?
(Claimant's exhibit 52, page 7, line 11 through page 8, line 6)
* * *
A. Yes, I do have an opinion.
(Claimant's exhibit 52, page 8, line 13)
* * *
Q. And what is your opinion, sir?
(Claimant's exhibit 52, page 8, line 15)
* * *
A. My opinion would be that there would be a material
aggravation from that activity for this shoulder problem.
(Claimant's exhibit 52, page 8, lines 17-19; objection by Mr.
Sayre omitted)
Claimant testified on direct examination that the facts
posed in this question were all accurate.
Dr. Wolbrink also testified to his opinion that if claimant
went back to the same repetitive type of activity after the
Bankart repair was performed, that repetitive activity would
again further aggravate the shoulder. He further testified that
given the Bankart repair and the restriction of motion he found
afterwards, and also on the assumption that claimant would relate
that she had pain in the scapular area in the back of the
shoulder, the repetitive activity and the Bankart repair and
restriction of motion would be causative of that pain.
As to claimant's right shoulder, Dr. Wolbrink testified to
his opinion that claimant had tendonitis. He was also of the
view that claimant's repetitive activity and employment would
constitute a material aggravation of the shoulder. He was also
of the view that his opinions as to both shoulders were expressed
within a reasonable degree of medical probability. Generally
speaking, (see page 14 of the deposition) it was Dr. Wolbrink's
position that repetitive work was causative of symptoms.
With regard to Dr. Cofield's findings, Dr. Wolbrink was
questioned as follows:
Q. Doctor Cofield recites in his report again, Doctor,
little further on, that he finds some mild atrophy of the
left supraspinatus and deltoid muscles.
What part of the body is that, Doctor? Can you demonstrate
for us?
A. The deltoid is a large muscle that fans out from the
clavicle, and then goes down over the shoulder. The
supraspinatus goes on the back side from the -- attaching
from the humerus, and then along the shoulder blade, along
the top margin of the shoulder blade to about -- well, to
the medial border of the shoulder blade, which is adjacent
to the spine.
Q. Would this atrophy of the supraspinatus and deltoid
muscles also be a consequence of the repetitive work
activity, the Bankhart repair and the restriction of motion
that she had following the Bankhart repair?
A. Yes, it would be related to the problem.
(Claimant's exhibit 52, page 15, line 13 through page 16, line
5)
Claimant submitted evidence as to expenses assessed to and
paid on her behalf. Dr. Murphy submitted a bill of $240.00 on
November 28, 1986. It was not itemized. Physical Therapy
Consultants (Mr. Bower) submitted a bill for $55.00 on January
14, 1987 for claimant's disability rating. Dorothea Pharris
submitted a bill of $61.90 on April 1, 1986 for Dr. Murphy's
deposition (as a court reporter). The University of Nebraska
Medical Center submitted a bill for $15.00 on April 1, 1986
concerning a request for information. Dr. Wolbrink submitted a
bill for $345.00 on November 17, 1988 for his deposition. Harris
Reporting submitted a bill for $80.20 on December 5, 1988 for the
deposition fee. All of these expenses were paid by claimant or
by her attorney.
APPLICABLE LAW AND ANALYSIS
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 supreme court of Iowa in Almquist v. Shenandoah
Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed
the definition of personal injury in workers' compensation cases
as follows:
While a personal injury does not include an occupational
disease under the workmen's Compensation Act, yet an injury
to the health may be a personal injury [Citations omitted.]
Likewise a personal injury includes a disease resulting from
an injury....The result of changes in the human body
incident to the general processes of nature do not amount to
a personal injury. This must follow, even though such
natural change may come about because the life has been
devoted to labor and hard work. Such result of those
natural changes does not constitute a personal injury even
though the same brings about impairment of health or the
total or partial incapacity of the functions of the human
body.
....
A personal injury, contemplated by the Workmen's
Compensation Law, obviously means an injury to the body, the
impairment of health, or a disease, not excluded by the act,
which comes about, not through the natural building up and
tearing down of the human body, but because of a traumatic
or other hurt or damage to the health or body of an
employee. [Citations omitted.] The injury to the human
body here contemplated must be something, whether an
accident or not, that acts extraneously to the natural
processes of nature and thereby impairs the health,
overcomes, injures, interrupts, or destroys some function of
the body, or otherwise damages or injures a part or all of
the body.
The claimant has the burden of proving by a preponderance of
the evidence that the injuries of May 25, 1984 and May 8, 1985
are causally related to the disability on which she now bases her
claims. 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).
In his deposition, Dr. Wolbrink expressed his opinion that
both of claimant's shoulder injuries were caused by the
employment. No other physician has expressed a contrary view.
While none of the other physicians directly opined that the work
injuries were causative of disability, it has also been
stipulated that the work injuries caused temporary disability,
and the record shows that at least three physicians have
recommended that claimant leave employment in the meatpacking
field. It is therefore held that claimant's shoulder
disabilities were caused by her work injuries.
To determine disability, it is necessary to discuss whether
claimant's injuries have been to scheduled members or to the body
as a whole. It was held in Alm v. Morris Barick Cattle Co., 240
Iowa 1174, 38 N.W.2d 161 (1949) that the statutory scheduling of
an arm injury does not apply to a shoulder injury, nor is such an
injury scheduled in any other subsection. Although the statute
has been amended and renumbered during the intervening years,
such is still the case. See also, Lauhoff Grain Company v.
McIntosh, 395 N.W.2d 834 (Iowa 1986), holding that the statutory
definition of "leg" did not include the hip joint, that the
commissioner was not required to apply the leg schedule to a hip
impairment, and that if there was actual impairment of the hip,
rather than the leg, compensation should be based on an
industrial disability to the body as a whole. Lauhoff Grain also
cited and quoted with apparent approval from Alm.
The surgical procedure to claimant's left shoulder was
located in the crease between claimant's body and arm. Claimant
suffers pain in the body and has clinical findings of atrophy to
the left supraspinatus and deltoid muscles; these are muscles
that are connected in the body as a whole. It cannot fairly be
said that claimant's disability on the left side is limited to
her arm, but clearly includes the joint itself and impairs the
body as a whole. Although the evidence is less satisfactory as
to claimant's right shoulder injury, the evidence does reflect
that claimant's tendonitis is not merely limited to the arm. It
is held that both injuries are to the body as a whole and not to
scheduled members.
With regard to claimant's right shoulder, the parties have
stipulated to healing period or temporary total disability. As
to the left side, the evidence is unclear as to claimant's
initial healing period following the work injury, as the dispute
relates to the period from June, 1986 to January, 1987. Claimant
was held off work by reason of her disability from May 22, 1986
through June 30, 1986, and then returned to work. However, it is
clear that Dr. Neff's manipulation of October 23, 1986 is
causally related to the work injury, since it constituted an
attempt to lyse adhesions resulting from the initial surgery.
Claimant was not found to have reached maximum recuperation from
this procedure until January 5, 1987. Therefore, it is held that
claimant's healing period includes those two intervals. It
appears from the stipulation that the initial healing period is
agreed by the parties to be 56 weeks 5 days for which claimant
was compensated.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to the
injured employee's age, education, qualifications, experience 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 disability. This
is so as impairment and disability are not synonymous. 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
disability include the employee's medical condition prior to the
injury, immediately after the injury, and presently; the situs of
the injury, its severity and the length of healing period; the
work experience or 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 disability.
See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision,
February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision,
March 26, 1985).
The record makes abundantly clear that claimant's injury to
the left shoulder is of substantially greater severity than her
injury to the right shoulder. On an impairment basis, Dr.
Connolly found a 15% disability, Dr. Wolbrink found a 23%
disability, and Drs. Murphy and Neff each found a disability of
27%. (The undersigned concludes that 27% was Dr. Neff's final
rating.) As Dr. Neff was a primary treating physician and as his
evaluation coincides with that of Dr. Murphy, it is concluded
that claimant has suffered a 27% functional impairment to the
left arm (as it was calculated by the respective physicians),
which, as has been seen, converts under the American Medical
Association's guides to a whole body impairment of 16%.
Claimant has restrictions in effect concerning her left side
injury. Dr. Neff restricted her against rotation of the arm on
June 16, 1986, and against repetitive work activity on June 23,
1986. On January 5, 1987, he restricted claimant to working with
both arms above her shoulders. In addition, he advised claimant
on a personal level that she should leave her employment in the
meatpacking field. The 45-pound lifting restriction imposed by
Mr. Bower is not considered a medical restriction because Mr.
Bower is not a physician. However, it is worth pointing out that
as a physical therapist working in conjunction with Dr. Neff on
the case, he agreed with the overhead work restriction and was
somewhat unsure as to whether restrictions against repetitious
work would be in order.
It should be noted at this time that defendants' brief
attributes a quotation in exhibit 22 concerning claimant's
ability to perform her previous work to Dr. Neff. A review of
the exhibit reveals that the quotation is actually that of Mr.
Bower. The undersigned accepts claimant's testimony as credible
that Dr. Neff advised her to leave this employment.
Drs. Murphy and Wolbrink each advised claimant to leave
employment in the meatpacking industry. In addition, Dr.
Wolbrink advised claimant to refrain from repetitive work with
both arms. While Dr. Cofield suggested that claimant could return
to work with her job restriction as she had supplied it, it was
claimant's understanding that this recommendation was based upon
Dr. Neff's limitations in writing and to claimant personally,
including his verbal restriction that claimant perform work only
in a "small box" directly in front of her person.
Claimant has clearly shown motivation in continuing to work
for defendant despite these two injuries. On the other hand,
defendant is entitled to credit for continuing to make work
available for claimant, although it is disputed as to whether
that work is actually within her physical limitations. The
record tends to show that all of the work provided claimant was
at least close to the edge of those limitations, while some of
the work is more clearly beyond the scope of the limitations.
Claimant's work history is somewhat limited, involving only
a factory job and various positions in the meatpacking industry.
Claimant has a high school diploma and appeared at hearing to be
of at least average intelligence. Given her age, she appears
suited for and capable of further retraining. Yet, there has
clearly been a diminution of her earning capacity because of the
restrictions placed upon her. Upon considering all of the above
factors and the evidence in general, the undersigned concludes
that claimant has sustained a 25% industrial disability to the
body as a whole by reason of her May 25, 1984 left shoulder
injury.
The evidence as to claimant's right shoulder disability
shows that there is very little impairment or industrial impact.
Dr. Neff believed she had a five percent impairment, Dr. Murphy
believed she had no impairment, and Dr. Wolbrink believed she had
less than a five percent impairment to the right shoulder. Only
Dr. Wolbrink has recommended restrictions, that being against
repetitive motion. However, there are surely some positions for
which claimant must now appear disqualified that might involve
only repetitive motions of the right shoulder and none of the
left. Therefore, the impairment to claimant's right shoulder
does constitute a separate and additional source of industrial
disability. The undersigned concludes that the industrial
disability attributable to the May 8, 1985 injury to claimant's
right shoulder is three percent of the body as a whole.
The final issue to be determined is that of assessment of
medical expenses and costs Defendants' brief takes the position
that Dr. Murphy's bill was for an independent examination under
Iowa Code section 85.39, and that Dr. Wolbrink's bill is an
attempt to recover second benefits under section 85.39. However,
a review of the face of that statement shows that Dr. Wolbrink's
charge was for his deposition. There is no indication that
examination or other services are included. Expert witness
testimony fees are not to exceed $150.00 per day, see Iowa Code
section 622.72. Therefore, Dr. Wolbrink's charge will be
assessed to defendants only in the sum of $150.00. Dr. Murphy's
bill is allowed as for an 85.39 examination and the statement of
Physical Therapy Consultants will be allowed as it is within the
expert witness limitation of 622.72, The Code.
FINDINGS OF FACT
THEREFORE, based on the evidence presented, the following
ultimate facts are found:
1. At all times relevant, claimant was employed by
defendant Wilson Foods Corporation.
2. As stipulated, claimant suffered an injury arising out
of and in the course of that employment to her left shoulder on
May 25, 1984 (771230).
3. As stipulated, claimant suffered an injury arising out of
and in the course of that employment to her right shoulder on May
8, 1985 (806153).
4. As stipulated, claimant was temporarily disabled from
working by reason of her right shoulder injury for two weeks and
two days, for which she has been fully compensated by defendant.
5. Claimant was temporarily disabled by reason of her left
shoulder injury from May 22, 1986 through June 30, 1986 (five
weeks, five days) and from October 23, 1986 through January 5,
1987 (ten weeks, five days), totalling sixteen weeks, three days.
Claimant has been compensated for her initial healing period
following the injury, which the parties stipulated to be 56
weeks, 5 days. In addition, defendant has paid 67.5 weeks of
compensation at the stipulated rate, although the parties dispute
as to whether the same should be credited as healing period or
permanent partial disability.
6. As stipulated, claimant's rate of compensation for each
injury is $195.33 per week.
7 . With regard to each injury, claimant's disability
extends to the joint itself or further into the body as a whole.
8. Each of claimant's work injuries has caused her
permanent disability and a diminution of her earning capacity.
9. Claimant was a credible witness.
10. Claimant has been given physical limitations by reason
of her left shoulder injury as follows: Rotation of the arm,
repetitive work activity, working with both arms above the
shoulders, and verbally by Dr. Neff, that claimant should work
only within a "small box" in front of her person and should
consider leaving the meatpacking industry.
11. Claimant has been given no restrictions by her treating
physician as to her right shoulder injury, although Dr. Wolbrink
has recommended against repetitive movement.
12. With regard to claimant's left shoulder, her physical
therapist has recommended that she be limited to lifting weights
not exceeding 45 pounds.
13. Dr. Murphy's bill is for a medical examination under
Iowa Code section 85.39; other disputed medical and court
reporter expenses are for expert witness fees or court reporting
and should be assessed as costs.
CONCLUSIONS OF LAW
WHEREFORE, based on the principles of law previously stated,
the following conclusions of law are made:
1. Claimant sustained an injury to her left shoulder
arising out of and in the course of her employment on May 25,
1984 (771230).
2. Claimant sustained an injury to her right shoulder
arising out of and in the course of her employment on May 8, 1985
(806153).
3. Each of claimant's injuries was an injury to the body as
a whole.
4. Claimant's left shoulder injury directly caused a
healing period from May 22, 1986 through June 30, 1986 and from
October 23, 1986 through January 5, 1987, in addition to
undisputed healing period disability at the time of the injury
for which claimant has been compensated.
5. Claimant has established a permanent partial disability
of 25% of the body as a whole with regard to her left shoulder
injury; the commencement date is January 6, 1987, after the end
of her last healing period interval.
6. Claimant has sustained a permanent partial disability of
three percent of the body as a whole by reason of her right
shoulder injury; the commencement date being March 12, 1988 (as
per the parties' stipulation).
7. Claimant is entitled to a physical examination under
Iowa Code section 85.39 with respect to Dr. Murphy.
ORDER
THEREFORE, IT IS ORDERED:
Defendant is to pay to claimant sixteen point four two nine
(16.429) weeks healing period benefits at the stipulated rate of
one hundred ninety-five and 33/100 dollars ($195.33) per week
totalling three thousand two hundred nine and 08/100 dollars
($3,209.08) with respect to her left shoulder injury.
Defendant is to pay unto claimant one hundred twenty-five
(125) weeks of permanent partial disability at the stipulated
rate of one hundred ninety-five and 33/100 dollars ($195.33) per
week, totalling twenty-four thousand four hundred sixteen and
25/100 dollars ($24,416.25) with respect to her left shoulder
injury commencing January 6, 1987.
Defendant is to pay unto claimant fifteen (15) weeks
permanent partial disability benefits at the stipulated rate of
one hundred ninety-five and 33/100 dollars ($195.33) per week,
totalling two thousand nine hundred twenty-nine and 95/100
dollars ($2,929.95), with respect to her right shoulder injury.
Defendant shall be entitled to eighty (80) weeks credit
against these awards, totalling fifteen thousand six hundred
twenty-six and 40/100 dollars ($15,626.40).
The bill of Richard P. Murphy, M.D., in the sum of two
hundred forty and 00/100 dollars ($240.00) shall be paid by
defendant under Iowa Code section 85.39.
The balance of the expenses set forth in claimant's exhibit
63 shall be assessed as costs, except that Dr. Wolbrink's
statement in the sum of three hundred forty-five and 00/100
dollars ($345.00) shall be awarded only in the sum of one hundred
fifty and 00/100 dollars ($150.00).
Any unpaid benefits which have accrued as of the date of
this decision shall be paid in a lump sum together with statutory
interest thereon pursuant to Iowa Code section 85.30.
The costs of each action shall be assessed to defendant
pursuant to Division of Industrial Services Rule 343ù4.33.
Defendant shall file claim activity reports in each file
number as requested by this agency pursuant to Division of
Industrial Services Rule 343-3.1.
Signed and filed this 24th day of May, 1989.
DAVID RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Steve Hamilton
Attorney at Law
606 Ontario Street
P.O. Box 188
Storm Lake, Iowa 50588
Mr. David L. Sayre
Attorney at Law
223 Pine Street
P.O. Box 535
Cherokee, Iowa 51012