BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
REGIS MCNAMARA,
Claimant, File No. 943914
vs. A P P E A L
SECOND INJURY FUND OF IOWA, D E C I S I O N
Defendant.
____________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal. The decision of the deputy
filed October 22, 1991 is affirmed and is adopted as the
final agency action in this case with the following
additional analysis:
The Second Injury Fund's argument that claimant's right arm
condition is an occupational disease rather than an injury
is rejected. Initially, it is noted that the right arm
condition appears to have resulted in a rupture, which
indicates an injury process other than repetitive trauma.
However, even if claimant's right arm condition is a
repetitive motion injury, under Noble v. Lamoni Products,
Appeal Decision, May 7, 1992, such a condition is the result
of an injury and not an occupational disease.
Second Injury Fund shall pay the costs of the appeal,
including the preparation of the hearing transcript.
Signed and filed this ____ day of May, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Thomas M. Wertz
Attorney at Law
4089 21st Ave. SW, Ste 114
Cedar Rapids, Iowa 52404
Mr. James E. Shipman
Attorney at Law
115 Third St., SE, Ste 1200
Cedar Rapids, Iowa 52401-1266
Page 2
Mr. Charles S. Lavorato
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg.
Des Moines, Iowa 50319
5-1803; 2203
Filed May 25, 1993
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
REGIS MCNAMARA,
Claimant, File No. 943914
vs. A P P E A L
SECOND INJURY FUND OF IOWA, D E C I S I O N
Defendant.
____________________________________________________________
5-1803
Claimant, 56 years of age at the time of the injury,
sustained a ruptured tendon at the elbow. Eventually, he
received a 15 percent functional impairment to the right
upper extremity.
Claimant had previously sustained a loss of 30 percent of
his left upper extremity.
Claimant's scholastic abilities are at the third grade
level. He had only completed the fifth grade, with no
further education or training.
Claimant awarded 70 percent industrial disability.
2203
Claimant's repetitive motion injury held to be an injury and
not an occupational disease pursuant to Noble.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
REGIS MCNAMARA, :
:
Claimant, :
:
vs. :
: File No. 943914
ABELL-HOWE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
UNKNOWN, :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
___________________________________________________________
introduction
This is a proceeding in arbitration brought by Regis
McNamara, claimant, against Abell-Howe Company, employer,
and the Second Injury Fund of Iowa, as defendants. Claimant
seeks workers' compensation benefits due to an injury he
received on December 19, 1988, which arose out of and in the
course of employment with employer.
The record in this case consists of the live testimony
of the claimant and Mary McIntosh, joint exhibit 1 through
14 and defendants' exhibit A.
issues
The parties present the following issues for
resolution:
1. Whether there is a causal relationship between
claimant's injury and his disability;
2. Whether claimant is entitled to permanent partial
or permanent total disability benefits;
3. Whether claimant has sustained an occupational
disease; and,
4. Whether defendants are entitled to credit for
benefits paid under Iowa Code section 85.64.
findings of fact
The undersigned deputy, having reviewed all of the
Page 2
evidence received, finds the following facts:
Claimant, Regis McNamara, was a 59-year old man at the
time of the hearing. His formal education consists of
completion of the fifth grade in elementary school and he
has not received a GED. He has had no other formal or
vocational education. Claimant's dominant hand is his right
hand.
In 1953, while serving in the Korean Conflict, claimant
was hit by a grenade in the left arm and hand. He sustained
some damage from shrapnel and presently continues to have
shrapnel located in his left upper extremity.
Claimant's work history is concentrated in the welding
area. In 1948 he worked as a welder for a blacksmith in
Praireburg, Iowa. He learned stick welding procedures while
on the job.
After one year, claimant went to work on a farm, which
included driving a tractor, plowing and disking. He worked
as a farm helper for three years.
Next, claimant worked for Iowa Steel and Iron Works in
Cedar Rapids, Iowa, where he worked for the next 13 years,
with time off to serve in Korea. Again, claimant worked as
a welder gaining on-the-job training. His beginning wage
was $1.35 per hour and when he left, in approximately 1964,
he was earning $6.50 per hour.
Claimant then worked for Kramer Brothers Bridge
Construction in Cedar Rapids, Iowa. He was a welder working
on bridges within the city. After five years of employment
with Kramer Brothers, claimant began working for Schmidt
Construction in Cedar Rapids, Iowa. His work involved the
same skills he had learned as a welder.
For the past 18 years claimant has been a member of
Local 89 and receives all of his welding assignments through
the union.
For approximately 10 or 11 years claimant worked for
Abell-Howe, a builder located in Cedar Rapids, Iowa.
Abell-Howe has been the primary contractor for ADM, a
company which produces corn sweetener. He has worked on
welding projects on both new and rebuilt buildings.
Claimant described his overall duties as an iron worker
as requiring welding skills, bolting up beams to form the
framework of various buildings and bridges and using air
drills to drill holes in beams to prepare them for the
framework. It is this later duty which gives rise to this
litigation.
Claimant was injured while working with the air drills.
He described his duties as using seven different sizes of
drills in order to get a hole large enough so that the bolts
could go through steel beams and hook on to a standing
building. He performed the air drilling while standing and
had to hold a seven-pound drill at shoulder level so that he
Page 3
could "lean into" the drill in order to drill the hole in
the beam. The force and rotation of the drill constantly
twisted claimant's right arm.
Claimant's reputation within the union was that of a
welder and he was sent out to jobs as such. Unusual was the
case that once sent out to a job site he would be assigned
other duties such as hooking beams to a crane or tying
rebar. Claimant testified that 75 percent of his work for
Abell-Howe was work as a welder.
For two and one-half months, during the later part of
1988, claimant performed the air drilling work described
above. He began to notice physical problems such as his
right arm aching all of the time and his fingers on the
right hand becoming numb. The problems continued and
claimant reported this to the union steward. He was sent to
the company doctor who supplied ibuprofen and an elastic
wrap.
Claimant continued to have sharp, constant pain in the
right upper extremity. He sought treatment from his family
physician, Kenneth Andersen, M.D. Dr. Andersen initially
treated claimant with steroid shots to the lateral
epicondyle on the right elbow. At that time he diagnosed
bursitis of the right elbow and advised claimant to avoid
hard work for at least one week.
Claimant returned to work and was assigned the same
duties using the air drill. He returned to Dr. Andersen for
additional steroid shots. Claimant testified that during
the next several months the steroid shots would help for
three or four days, he would return to work and would soon
after begin to feel pain again. Finally, in May of 1989
claimant was referred to Earl Bickel, M.D., an orthopedic
specialist, for treatment (joint exhibit 1, pages 1-16).
Claimant first visited Dr. Andersen on May 17, 1989.
The medical records indicate that claimant showed full
flexion and extension with a slight dip between the lateral
epicondyle of the common extensors. X-rays of the elbow
were normal.
Claimant returned to Dr. Andersen in June of 1989. He
continued to complain of pain in the elbow and Dr. Andersen
diagnosed an entrapment syndrome of the radial nerve. He
ordered an EMG, the results of which were positive and
scheduled surgery for release of the entrapment syndrome.
This surgery was performed on July 10, 1989, at St. Luke's
Hospital in Cedar Rapids, Iowa (jt. ex. 2, pp. 1-4 and p.
8).
Claimant proceeded to undergo physical therapy for the
next six weeks after the initial operation. He stated that
this was of no help and because Dr. Bickel has ceased
treating him, due to a heart attack, he was referred to
Walter Hales, M.D., who began to treat claimant in January
of 1990. Upon examination, Dr. Hales concluded that
claimant needed to undergo a second operation in the form of
a fasciotomy of the lateral epicondyle with extensor origin
Page 4
detachment of the right elbow. Dr. Hales noted that
claimant, "had surgery for a problem which I had never seen
to the extent he had his extensor mechanism totally ruptured
off the lateral epicondyle." (jt. ex. 2, p. 10).
Claimant was treated by Dr. Hales through February and
March of 1990. His notes, dated April 16, 1990, supply the
following information:
Regis is kind of in a difficult situation
having had a severe tennis elbow, the severest I
have ever witnessed at surgery, with total
disruption of a tendon with a very guarded
prognosis in terms of ever really recovering
enough to be able to work. We are going to fit
him with a Bird & Cronin splint that hopefully
will give him some relief and allow him to adjust
and learn to use that over a week's time and let
him return to work on the 23rd of April and I will
check him two to three weeks later to see if, in
fact, he is tolerating the work or not, as an iron
worker.
(joint exhibit 2, page 12)
Once claimant was released to return to work, the
employer would not let him work with a splint on his elbow.
Claimant stated that after the second surgery he was
not scheduled to undertake physical therapy, but proceeded
to do exercises at home. His arm continued to hurt with
neither the brace nor elastic helping stabilize the elbow.
When claimant asked the union for light duty work, he was
told that none existed for an iron worker. As of the date
of the hearing, claimant had not returned to work.
In April and May of 1991 the company employed a
vocational rehabilitationist, Karma Gibson, to assist
claimant in identifying transferable job skills and finding
suitable employment. Claimant's search for suitable
employment has been hindered by his ability to read, which
claimant described as having problems with "big words."
Additionally, claimant has problems spelling words and
performing almost any type of mathematic problem. He can,
however, read blueprints.
According to claimant he met only one time with the
vocational rehabilitationist. At a later date she sent
claimant a letter regarding jobs for which he could apply
and claimant did contact some, if not most, of the employers
supplied to him (jt. ex. 5, pp. 1-8).
Another vocational rehabilitation expert was employed
by the defendant employer. Douglas Nelson supplied claimant
with yet another list of potential employers. He also
evaluated claimant's overall work history and potential for
employment and found that claimant reads at a seventh grade
level, spelled at a third grade level and possessed
mathematic skills of a third grader. A list of job titles
which fell at or below the light, physical demand
Page 5
classification was supplied to claimant. These titles
included solderer, assembler of small products, injection
machine off-bearer, folding machine operator, electrical
assembler, parking lot attendant, cafeteria attendant, and a
laundry sorter. Again, claimant was supplied with a list of
potential employers within the Cedar Rapids and Iowa City
areas (jt. ex. 6, pp. 1-15).
analysis and conclusions of law
The first issue to be addressed is whether there is a
causal relationship between claimant's injury and his
disability.
The claimant has the burden of proving by a
preponderance of the evidence that the injury of December
19, 1988, 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).
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal
connection, such testimony may be coupled with nonexpert
testimony to show causation and be sufficient to sustain an
award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146
N.W.2d 911, 915 (1966). Such evidence does not, however,
compel an award as a matter of law. Anderson v. Oscar Mayer
& Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish
compensability, the injury need only be a significant
factor, not be the only factor causing the claimed
disability. Blacksmith v. All-American, Inc., 290 N.W.2d
348, 354 (Iowa 1980).
Since the Second Injury Fund of Iowa is the sole
defendant in the case, this issue revolves around the fund's
exposure to liability. As a result, it is necessary to
analyze whether claimant has sustained a prior permanent
disability.
Section 85.64 governs Second Injury Fund liability.
Page 6
Before liability of the Fund is triggered, three
requirements must be met. First, the employee must have
lost or lost the use of a hand, arm, foot, leg or eye.
Second, the employee must sustain a loss or loss of use of
another specified member or organ through a compensable
injury. Third, permanent disability must exist as to both
the initial injury and the second injury.
The Second Injury Fund Act exists to encourage the
hiring of handicapped persons by making a current employer
responsible only for the amount of disability related to an
injury occurring while that employer employed the
handicapped individual as if the individual had had no
preexisting disability. See Anderson v. Second Injury Fund,
262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers'
Compensation-Law and Practice, section 17-1.
The Fund is responsible for the difference between
total disability and disability for which the employer at
the time of the second injury is responsible. Section
85.64. Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa
1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300
(Iowa 1970).
As noted earlier, claimant sustained an injury to his
left arm while serving in the Korean War. He has received
two functional impairment ratings, one from the Veteran's
Administration medical personnel who deemed claimant to have
a 30 percent impairment of the left upper extremity.
Richard Neiman, M.D., performed an evaluation of claimant's
restrictions on March 11, 1991. Dr. Neiman noted loss of
tissue in the left humerus area with some numbness. He
agreed with the 30 percent functional impairment rating to
the left upper extremity (jt. ex. 3, pp. 2, 4).
Dr. Neiman also evaluated claimant's right upper
extremity. Upon examination he noted weakness in the
forearm, brachia radialis and extensor indocis, proprious.
He also noted loss of range of motion and assigned a 15
percent functional impairment rating to the right upper
extremity (jt. ex. 3, pp. 2, 4).
In May of 1991 Dr. Hales, who was claimant's treating
physician, made an assessment as to claimant's functional
impairment of the right upper extremity and assigned
restrictions of no lifting or carrying greater than 20
pounds with the right upper extremity. Dr. Hales also
opined that claimant's condition with respect to the right
upper extremity was caused by his employment at Abell-Howe
(jt. ex. 2, pp. 27, 29).
The greater weight of the evidence shows that not only
is claimant's condition, with respect to his right upper
extremity, a direct cause of a work injury, but the evidence
also shows that claimant has sustained a permanent
impairment to the left upper extremity.
It is also clear from the medical evidence that
claimant has sustained a permanent injury to his left upper
extremity due to a war injury. Although the fund argues
Page 7
that one impairment rating is stale, agency precedence shows
that the fund has been held responsible for payment of
benefits, even where a claimant has suffered a congenital
birth defect and later sustained a work related injury.
See, Shank v. Mercy Hospital Medical Center, (app. dec.
August 28, 1989).
Having found that claimant has sustained a prior,
permanent disability, it is necessary to evaluate claimant's
industrial disability due to the combined effects of the two
impairments.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
Page 8
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
At the time of the injury claimant was 56 years old.
The majority of his work experience is as a welder.
He quit school after the fifth grade and other then the
usual lay offs common in the field of construction, he has
been continuously employed. As discussed earlier, claimant
reads at a seventh grade level, spells at the third grade
level and performs mathematics at the third grade level.
Emotionally, claimant appeared average.
Physically, claimant has sustained a severe, somewhat
unusual injury to the right elbow. He endured a prolonged
period of medical treatment and underwent two surgeries.
Due to the effect of the combined disabilities, the type of
work for which claimant is suited falls within the light
physical demand classification. Most of these jobs pay
between $4 and $6 per hour. At the time of the injury
claimant was making almost $15 per hour. His actual loss of
earnings, provided he secures employment, would probably be
at least 65 percent. Claimant has been advised against
returning to his employment as a welder, a skill he has
practiced for more then 40 years.
After considering all of the factors that comprise an
industrial disability, it is found that claimant has
sustained an industrial disability of 70 percent.
The fund's liability is determined by using the
following formula:
350 weeks (industrial disability resulting from
combined effects of all
injuries)
- 75 weeks (impairment value of the prior loss: 30
percent of 250 weeks)
- 37.5 weeks (impairment value of the second injury for
which the employer is responsible 15 percent
of 250 weeks)
_____________
237.5 weeks (amount for which second injury fund is
responsible)
An additional issue which has been raised by the
defendant fund is that of whether claimant's injury is
actually an occupational disease. If found to be such, this
defendant would be absolved of all liability.
Iowa Code section 85A is the applicable code section on
the determination of an occupational disease.
Specifically, Iowa Code section 85A.4 defines disablement:
Disablement as that term is used in this
chapter is the event or condition where an
Page 9
employee becomes actually incapacitated from
performing the employee's work or from earning
equal wages in other suitable employment because
of an occupational disease as defined in this
chapter in the last occupation in which such
employee is injuriously exposed to the hazards of
such disease.
Occupational disease is defined under Iowa Code section
85A.8:
Occupational diseases shall be only those
diseases which arise out of and in the course of
the employee's employment. Such diseases shall
have a direct causal connection with the
employment and must have followed as a natural
incident thereto from injurious exposure
occasioned by the nature of the employment. Such
disease must be incidental to the character of the
business, occupation or process in which the
employee was employed and not independent of the
employment. Such disease need not have been
foreseen or expected but after its contraction it
must appear to have had its origin in a risk
connected with the employment and to have resulted
from that source as an incident and rational
consequence. A disease which follows from a
hazard to which an employee has or would have been
equally exposed outside of said occupation is not
compensable as an occupational disease.
Furthermore, Iowa Code section 85A.14 provides:
No compensation shall be payable under this
chapter for any condition of physical or mental
ill-being, disability, disablement, or death for
which compensation is recoverable on account of
injury under the workers' compensation law.
The question of whether a medical condition constitutes
an occupational disease or an injury must be approached on a
case-by-case basis with close analysis of the specific
employment hazard giving rise to the condition.
The fund bases its argument that claimant sustained an
occupational disease on a series of responses to the fund's
questions regarding claimant's condition. Specifically, Dr.
Hales' response when asked whether claimant's condition was
a result of a single traumatic incident at work or whether
it developed over a period of time due to the nature of the
work was answered as such, "Mr. McNamara's condition was not
a result of a single traumatic incident at work but did
develop over a period of time due to the nature of work at
Abell Howe." Dr. Hales went on to state that, "It would be
my opinion that it could be described as a disease process
of common extensor origin which is a degenerative process of
the tendon, in this patient's case an actual rupture of the
tendon." (jt. ex. 2, pp. 26-27).
However, Dr. Hales also indicated that claimant's
Page 10
injury was due to a cumulative trauma and falls under the
broad use of overuse syndrome.
Although many decisions have dealt with the issue of
whether a claimant has sustained an injury or occupational
disease, there is no clear, bright line that establishes
guidelines to follow when determining what constitutes an
injury and what constitutes an occupational disease.
Therefore, each determination is made on a case by case
basis.
In the case at bar, several factors support a finding
that claimant sustained an injury while on the job. First
of all, he was performing an assignment that was only a
portion of his overall duties conducted on the job site.
Airdrilling holes in beams was not his constant,
day-after-day work. The majority of his work consisted of
welding.
Second, the defendant did not produce any evidence to
suggest that welders, who were assigned airdrilling duties,
consistently developed the same type of injury sustained by
claimant.
Last, claimant sustained what was sometimes referred to
as a "ruptured" tendon. The word "rupture" indicates a
traumatic injury.
The undersigned is unwilling to find that claimant's
work-related injury was that of an occupational disease.
Even if the work-related injury had been found to have been
an occupational disease, agency precedence is unclear as to
whether it is mandated that an occupational disease to a
scheduled member be evaluated industrially or functionally.
The last issue to be addressed is whether the defendant
fund is entitled to a credit as provided for under Iowa Code
section 85.64 which states in relevant part:
Any benefits received by any such employee, or
to which the employee may be entitled, by reason
of such increased disability from any state or
federal fund or agency, to which said employee has
not directly contributed, shall be regarded as a
credit to any award made against said second
injury fund as aforesaid.
The undersigned is not persuaded by the fund's
argument.
Social security is a government program to which
claimant has directly contributed. The amount of social
security disability benefits received by claimant may be
reduced as a result of the workers' compensation award, but
no credit will be given to the fund under this code section.
order
THEREFORE, IT IS ORDERED:
Page 11
That defendant fund shall pay claimant permanent
partial disability payments for 237.5 weeks at the workers'
compensation rate of three hundred thirty seven and 73/100
dollars ($337.73) per week beginning May 10, 1990.
That defendant fund shall pay the accrued weekly
benefits in a lump sum.
That defendant fund pay interest on benefits awarded
herin as set forth in Iowa Code section 85.30.
That defendant fund pay the costs of this action
pursuant to rule 343 IAC 4.33.
That defendant fund file claim activity reports upon
payment of the award as required by this agency pursuant to
rule 343 IAC 3.1.
Signed and filed this ____ day of October, 1991.
______________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Page 12
Copies to:
Mr. Thomas M. Wertz
Attorney at Law
4089 21st Ave SW STE 114
Cedar Rapids, IA 52404
Mr. Charles Lavorato
Assistant Attorney General
Hoover State Office Bldg.
Des Moines, IA 50319
Page 1
51803
Filed October 22, 1991
Patricia J. Lantz
before the iowa industrial commissioner
____________________________________________________________
:
REGIS MCNAMARA, :
:
Claimant, :
:
vs. :
: File No. 943914
ABELL-HOWE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
UNKNOWN, :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
___________________________________________________________
51803
Claimant, 56 years of age at the time of the injury,
sustained a ruptured tendon at the elbow. Eventually, he
received a 15 percent functional impairment to the right
upper extremity.
Claimant had previously sustained a loss of 30 percent of
his left upper extremity.
Claimant's scholastic abilities are at the third grade
level. He had only completed the fifth grade, with no
further education or training.
Claimant awarded 70 percent industrial disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
CHARLES KRATZER,
Claimant,
vs.
File No. 943924
E.I. DUPONT DeNEMOURS & CO.,
A P P E A L
Employer,
D E C I S I O N
and
KEMPER INSURANCE CO.,
Insurance Carrier,
Defendants.
____________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal.
ISSUES
The issues on appeal are: Whether claimant's May 7, 1990
injury is a cause of permanent disability; the nature and
extent of claimant's permanent disability, if any; and
whether claimant is entitled to certain medical benefits.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed June 16, 1992 are adopted as set forth below.
Segments designated by brackets ([ ]) indicate language that
is in addition to the language of the proposed agency
decision.
Claimant was born on March 10, 1945, and completed the
twelfth grade of school. Claimant commenced working for
employer on July 28, 1978. On May 7, 1990, claimant
sustained a flash burn to his face, ears, right arm, and
hands, when chemical solvent ignited while he was running a
filling machine.
The medical evidence in the record reveals that
claimant was admitted to the University of Iowa Burn Unit on
May 7, 1990. He was discharged by G. Patrick Kealey, M.D.,
medical director, on May 14, 1990. He was released to Lee
County Health Department for assistance with burn care. He
was also referred to Fort Madison Community Hospital for
rehabilitative therapy. On June 8, 1990, Dr. Kealey
certified that claimant was ready for employment. He
advised claimant to work in an environment which protected
his burn wounds from trauma and to avoid excessive exposure
Page 2
to potential harm from chemicals or solvents. Dr. Kealey
reported, "I would expect with the passage of time that
these problems will resolve and that you should have a very
satisfactory and completely functional recovery from your
burn injury." (exhibit 13, page 212).
Claimant requested counseling and Dr. Kealey
recommended referral to J.C. Noel Brown, M.D., psychiatrist.
Dr. Brown saw claimant on July 5, 1990. Claimant appeared
to be anxious and depressed. A follow-up visit on July 25,
1990, found him more relaxed, more comfortable with himself
and more optimistic for the future (ex. 18, p. 233). [In a
letter written July 26, 1990 Dr. Brown wrote that "[t]he
differential diagnosis was that of Major Depression with
strong Axis IV Stressors, or Post Traumatic Stress Syndrome
secondary to the accident on the job situation" (ex. 4, p.
12 and ex. 18, p. 233). When Dr. Brown saw claimant on July
25, 1990 claimant had a very clear cut improvement but was
still fearful at the job situation, particularly when he
neared the area of the accident (ex. 4, p. 12 and ex. 18, p.
233).]
Claimant continued to experience stressors in his
personal and work life and he continued to see Dr. Brown for
counseling. On February 12, 1991, Dr. Brown reported that
he stopped claimant's Prozac and did not start him on
another anti-depressant. He indicated that claimant's job
situation is a psychosocial stressor militating against his
recovery (ex. 17, pp. 229-230).
Although claimant testified that he continues to be
treated by Dr. Brown, the record contains no medical
evidence from Dr. Brown after February 12, 1991. [Claimant
testified that he currently works out doors. He stated that
he was conscious of heat, the smell of smoke bothers him,
and that psychological counseling had lessened but not cured
his fears of being around a fire. Claimant was unable to
say how many times he seen Dr. Brown since February 1991.]
On November 13, 1991, claimant underwent a disability
evaluation by Nick Laubenthal, L.P.T., M.A. Claimant
presented with subjective complaints of intolerance to heat,
cold, ultraviolet light, and petrochemicals. He also
complained that compression on his left forearm is
uncomfortable and that he has itching and hyper/hypohidrosis
of selected areas. Mr. Laubenthal observed that claimant
had a moderate tan from being out in the sun. On
examination, he noted an area of hypopigmentation
circumferential on the distal 2/3 of claimant's left forearm
with full hair regrowth. He also observed a small area of
hypertrophic scarring on the left anterior shoulder and a
small area of hypopigmentation on the right mid forearm.
Also evident was scattered hypopigmented areas on the dorsum
of both hands and fingers. Clinically, claimant was
reported to be intact to light touch over both upper
extremities, face and ears. Range of motion in both
shoulders, elbows, wrists, fingers and thumbs were within
normal limits. Strength in all joints in both upper
Page 3
extremities was also within normal limits (ex. 20, pp.
242-243).
On November 13, 1991, claimant was seen by Dr. Kealey
for a disability rating. After reviewing the claimant's
medical history and noting his complaints, Dr. Kealey
described claimant's skin disease as a Class One impairment.
He explained as follows:
A person belongs in Class One impairment when
signs and symptoms of skin disorder are present,
and with treatment there is no limitation, or
minimal limitation, in the performance of the
activities of daily living although exposure to
certain physical or chemical agents might increase
limitation temporarily. On the basis of this
finding I would assign you a 1% whole man
disability. This is permanent, it is unlikely to
change in the future,...
(exhibit 19, pages 240-241)
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed June 16, 1992 are adopted as set forth below.
Segments designated by asterisks (*****) indicate portions
of the language from the proposed agency decision that have
been intentionally deleted and do not form a part of this
final agency decision. Segments designated by brackets ([
]) indicate language that is in addition to the language of
the proposed agency decision.
The parties do not dispute that claimant sustained a
work-related injury on May 7, 1990. Since claimant has
suffered an injury, the next question to be resolved is
whether the injury has caused a permanent disability.
Claimant has the burden of proving by a preponderance of the
evidence that the injury of May 7, 1990, is causally related
to the disability on which he now bases his claim. Bodish
v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl
v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945). A
possibility is insufficient; a probability is necessary.
Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732,
738 (Iowa 1955). The question of causal connection is
essentially within the domain of expert testimony. Bradshaw
v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).
Expert medical evidence must be considered with all other
evidence introduced bearing on the causal connection. Burt,
73 N.W.2d at 738. The opinion of the experts need not be
couched in definite, positive or unequivocal language.
Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).
Moreover, the expert opinion may be accepted or rejected, in
whole or in part, by the trier of fact. Sondag, 220 N.W.2d
at 907. Finally, 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
material circumstances. Bodish, 133 N.W.2d at 870;
Musselman, 154 N.W.2d at 133. The Supreme Court has also
Page 4
observed that greater deference is ordinarily accorded
expert testimony where the opinion necessarily rests on
medical expertise. Sondag, 220 N.W.2d at 907.
In this instance, Dr. Kealey, claimant's treating
physician, gave claimant a one percent whole man disability
due to his skin disease and noted that he has no limitations
in the performance of activities of daily living although
exposure to certain physical or chemical agents may
temporarily increase his limitation. Mr. Laubenthal
reported that, on examination, claimant had full range of
motion of the affected areas and normal strength in all the
joints of his upper extremities.
[Dr. Kealey did indicate that claimant's condition is
permanent. There is no contrary evidence in the record.
Claimant has proven that his physical impairment is
permanent.
Under the record of this case it cannot be said that
claimant has suffered a permanent psychological condition
because of his work injury. According to Dr. Brown claimant
improved rather quickly between July 5, 1990 and July 25,
1990 following the May 7, 1990 injury. Although claimant
continued to have some psychological problems, there is no
reliable indication to the extent of those problems. There
is no medical evidence of treatment after February 1991 and
claimant was unable to say how many times he had seen Dr.
Brown after February 1991. Furthermore, some of Dr. Brown's
notes (ex. 18, pp. 234-238) indicates that the source of
claimant's psychological condition may be something other
than the work injury. Claimant has not proved that his work
injury caused or aggravated a permanent psychological
condition.
The next issue to be resolved is the nature of
claimant's disability. Claimant has no scarring of the face
or head. Therefore, Iowa Code section 85.34(2)(t) does not
apply.
Mr. Laubenthal observed that claimant had scarring or
hypopigmentation on the left and right forearm and on the
left anterior shoulder. Dr. Kealey's impairment of the skin
presumedly would be an impairment to the skin where the
scarring or hypopigmentation occurred. Because claimant's
disability was to both arms and a shoulder, claimant is to
be evaluated under Iowa Code section 85.34(2)(u).
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
the employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
Page 5
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Iowa Code section
85.34.]
Claimant testified that he returned to work with
employer in June 1990. By choice he works outdoors as a
yard service supervisor. According to Robert Daugherty
claimant's supervisor, he performs this job satisfactorily
and without any accommodations. Claimant earns $14 an hour
and works extensive overtime on weekends.
The greater weight of the medical evidence supports the
finding that claimant does not have a serious disability
Page 6
which [little] affects his earning capacity. Claimant's
skin disease imposes ***** limitation on his ability to
physically function or engage in activities of daily living.
***** He earns more now than he did when he was injured and
he has no restrictions in the number of hours he can work or
the type of physical activity he can perform. While he has
scattered hypopigmented areas on the dorsum of both hands
and fingers, they are without scarring. None of the
affected burnt areas are limited in range of motion or
strength. He has no loss of use of his upper extremities
*****.
*****
[As discussed above claimant has not demonstrated that
he has a permanent psychological condition because of his
injury. Claimant alleges that he has a fear of fire and is
sensitive to weather conditions. Although he may be
sensitive to weather conditions he currently works well
outdoors. Claimant's fear of fire would not be a
significant factor in his loss of earnings capacity.
When all the factors of industrial disability and the
evidence of this case are considered, it is concluded that
claimant has suffered a one percent industrial disability as
a result of his May 7, 1990 injury.
The parties stipulated to weekly benefits from May 7,
1990 through June 22, 1990. Because claimant has proved
entitlement to permanent disability benefits, weekly
benefits during the period should be healing period
benefits.
It is impossible to tell whether the balance due in
exhibit 22 was for drugs that were related to treatment of
claimant's physical or mental condition caused by claimant's
work injury. The party who would suffer loss if an issue
were not established has the burden of proving that issue by
a preponderance of the evidence. Iowa R. App. P. 14(f).
Claimant has failed to prove that he is entitled to the
medical bill in exhibit 22.]
WHEREFORE, the decision of the deputy is reversed.
ORDER
THEREFORE, it is ordered:
That defendants are to pay unto claimant healing period
benefits from May 7, 1990 until June 22, 1990, at the rate
of three hundred eighty and 58/100 dollars ($380.58) per
week.
That defendants are to pay unto claimant five (5) weeks of
permanent partial disability benefits at the rate of three
hundred eighty and 58/100 dollars ($380.58) per week from
June 23, 1990.
That defendants shall pay accrued weekly benefits in a lump
sum.
That defendants shall pay interest on unpaid weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
That defendants are to be given credit for benefits
previously paid.
Page 7
That defendants shall pay the costs of this matter
including transcription of the hearing and shall reimburse
claimant for the filing fee if previously paid by claimant.
Signed and filed this ____ day of August, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Page 8
Copies To:
Mr. James P. Hoffman
Attorney at Law
Middle Road
P.O. Box 1087
Keokuk, Iowa 52632
Ms. Vicki L. Seeck
Attorney at Law
600 Union Arcade Bldg.
111 E. Third St.
Davenport, Iowa 52801
1803
Filed August 20, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
CHARLES KRATZER,
Claimant,
vs.
File No. 943924
E.I. DUPONT DeNEMOURS & CO.,
A P P E A L
Employer,
D E C I S I O N
and
KEMPER INSURANCE CO.,
Insurance Carrier,
Defendants.
____________________________________________________________
1803
Claimant suffered a burn injury to his face, head, arms and
shoulder which resulted in scars or hypopigmentation on his
arms and shoulder. The treating physician gave claimant a
one percent impairment rating because of the skin condition
and said the condition was permanent. Claimant was found to
have a permanent disability. There was no scarring of the
face or head. Claimant was evaluated industrially under
Iowa Code section 85.34(2)(u).
Other than the impairment of a limited area of claimant's
skin claimant had no functional disability. He had
sensitivity to temperature that was tolerated well. He had
no loss of earnings. It was determined that claimant had
suffered a one percent industrial disability.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
CHARLES KRATZER, :
:
Claimant, :
:
vs. :
: File Nos. 954475 and 943924
E.I. DUPONT DeNEMOURS & CO., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
KEMPER INSURANCE CO., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Charles
Kratzer, claimant, against E.I. DuPont DeNemeours & Co.,
employer, and Kemper Insurance, insurance carrier,
defendants, to recover benefits under the Iowa Workers'
Compensation Act as a result of injuries sustained on May 7,
1990 (942924) and October 2, 1990 (954475). This matter
came on for hearing before the undersigned deputy industrial
commissioner on June 2, 1992, in Burlington, Iowa. The
record in this case consists of joint exhibits 1 through 22.
The claimant was present and testified at the hearing. Also
present and testifying was Robert Daugherty. The record
was considered fully submitted at the close of the hearing.
At the hearing, claimant expressed an intent to dismiss
litigation in file number 954475. That verbal dismissal was
accepted by the deputy, although claimant was also directed
to submit the dismissal in writing.
ISSUES
Pursuant to the prehearing report and order dated June
2, 1992, the parties have submitted the following issues for
resolution:
1. Whether claimant's May 7, 1990, injury is a cause
of permanent disability;
2. The extent to entitlement to weekly compensation
for permanent disability, if defendants are liable for the
injury;
3. The type of permanent disability, if the injury is
found to be a cause of permanent disability; and
4. Whether claimant is entitled to certain medical
benefits under Iowa Code section 85.27.
Page 2
FINDINGS OF FACT
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Claimant was born on March 10, 1945, and completed the
twelfth grade of school. Claimant commenced working for
employer on July 28, 1978. On May 7, 1990, claimant
sustained a flash burn to his face, ears, right arm, and
hands, when chemical solvent ignited while he was running a
filling machine.
The medical evidence in the record reveals that
claimant was admitted to the University of Iowa Burn Unit on
May 7, 1990. He was discharged by G. Patrick Kealey, M.D.,
medical director, on May 14, 1990. He was released to Lee
County Health Department for assistance with burn care. He
was also referred to Fort Madison Community Hospital for
rehabilitative therapy. On June 8, 1990, Dr. Kealey
certified that claimant was ready for employment. He
advised claimant to work in an environment which protected
his burn wounds from trauma and to avoid excessive exposure
to potential harm from chemicals or solvents. Dr. Kealey
reported, "I would expect with the passage of time that
these problems will resolve and that you should have a very
satisfactory and completely functional recovery from your
burn injury." (exhibit 13, page 212).
Claimant requested counseling and Dr. Kealey
recommended referral to J.C. Noel Brown, M.D., psychiatrist.
Dr. Brown saw claimant on July 5, 1990. Claimant appeared
to be anxious and depressed. A follow-up visit on July 25,
1990, found him more relaxed, more comfortable with himself
and more optimistic for the future (ex. 18, p. 233).
Claimant continued to experience stressors in his
personal and work life and he continued to see Dr. Brown for
counseling. On February 12, 1991, Dr. Brown reported that
he stopped claimant's Prozac and did not start him on
another anti-depressant. He indicated that claimant's job
situation is a psychosocial stressor militating against his
recovery (ex. 17, pp. 229-230).
Although claimant testified that he continues to be
treated by Dr. Brown, the record contains no medical
evidence from Dr. Brown after February 12, 1991.
On November 13, 1991, claimant underwent a disability
evaluation by Nick Laubenthal, L.P.T., M.A. Claimant
presented with subjective complaints of intolerance to heat,
cold, ultraviolet light, and petrochemicals. He also
complained that compression on his left forearm is
uncomfortable and that he has itching and hyper/hypohidrosis
of selected areas. Mr. Laubenthal observed that claimant
had a moderate tan from being out in the sun. On
examination, he noted an area of hypopigmentation
circumferential on the distal 2/3 of claimant's left forearm
Page 3
with full hair regrowth. He also observed a small area of
hypertrophic scarring on the left anterior shoulder and a
small area of hypopigmentation on the right mid forearm.
Also evident was scattered hypopigmented areas on the dorsum
of both hands and fingers. Clinically, claimant was
reported to be intact to light touch over both upper
extremities, face and ears. Range of motion in both
shoulders, elbows, wrists, fingers and thumbs were within
normal limits. Strength in all joints in both upper
extremities was also within normal limits (ex. 20, pp.
242-243).
On November 13, 1991, claimant was seen by Dr. Kealey
for a disability rating. After reviewing the claimant's
medical history and noting his complaints, Dr. Kealey
described claimant's skin disease as a Class One impairment.
He explained as follows:
...A person belongs in Class One impairment when
signs and symptoms of skin disorder are present,
and with treatment there is no limitation, or
minimal limitation, in the performance of the
activities of daily living although exposure to
certain physical or chemical agents might increase
limitation temporarily. On the basis of this
finding I would assign you a 1% whole man
disability. This is permanent, it is unlikely to
change in the future,...
(exhibit 19, pages 240-241)
CONCLUSIONS OF LAW
The parties do not dispute that claimant sustained a
work-related injury on May 7, 1990. Since claimant has
suffered an injury, the next question to be resolved is
whether the injury has caused a permanent disability.
Claimant has the burden of proving by a preponderance of the
evidence that the injury of May 7, 1990, is causally related
to the disability on which he now bases his claim. Bodish
v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl
v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945). A
possibility is insufficient; a probability is necessary.
Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732,
738 (Iowa 1955). The question of causal connection is
essentially within the domain of expert testimony. Bradshaw
v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).
Expert medical evidence must be considered with all other
evidence introduced bearing on the causal connection. Burt,
73 N.W.2d at 738. The opinion of the experts need not be
couched in definite, positive or unequivocal language.
Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).
Moreover, the expert opinion may be accepted or rejected, in
whole or in part, by the trier of fact. Sondag, 220 N.W.2d
at 907. Finally, 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
material circumstances. Bodish, 133 N.W.2d at 870;
Musselman, 154 N.W.2d at 133. The Supreme Court has also
observed that greater deference is ordinarily accorded
Page 4
expert testimony where the opinion necessarily rests on
medical expertise. Sondag, 220 N.W.2d at 907.
In this instance, Dr. Kealey, claimant's treating
physician, gave claimant a 1 percent whole man disability
due to his skin disease and noted that he has no limitations
in the performance of activities of daily living although
exposure to certain physical or chemical agents may
temporarily increase his limitation. Mr. Laubenthal
reported that, on examination, claimant had full range of
motion of the affected areas and normal strength in all the
joints of his upper extremities.
Claimant testified that he returned to work with
employer in June 1990. By choice he works outdoors as a
yard service supervisor. According to Robert Daugherty
cliamant's supervisor, he performs this job satisfactorily
and without any accommodations. Claimant earns $14 an hour
and works extensive overtime on weekends.
The greater weight of the medical evidence supports the
finding that claimant does not have a serious disability
which affects his earning capacity. Claimant's skin disease
imposes no limitations on his ability to physically function
or engage in activities of daily living. Claimant has no
facial scarring and is not eligible for benefits under Iowa
Code section 85.34(2)(t). Furthermore, claimant has
suffered no industrial disability. He earns more now than
he did when he was injured and he has no restrictions in the
number of hours he can work or the type of physical activity
he can perform. While he has scattered hypopigmented areas
on the dorsum of both hands and fingers, they are without
scarring. None of the affected burnt areas are limited in
range of motion or strength. He has no loss of use of his
upper extremities and his burn injuries do not extend into
the body as a whole.
Therefore, claimant has not met his burden of proof
regarding permanency. He has failed to show by a
preponderance of the evidence that he has suffered burn
injuries that have resulted in permanent physical
impairment.
This issue is dispositive of the entire case and
further analysis is unnecessary.
ORDER
THEREFORE, IT IS ORDERED:
Case number 954475 is dismissed and claimant shall take
nothing.
Case number 943924, claimant shall take nothing from
these proceedings.
Page 5
The costs of this action in case number 943924 are
assessed to defendants pursuant to rule 343 IAC 4.33.
Signed and filed this ____ day of June, 1992.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. James Hoffman
Attorney at Law
Middle Road
PO Box 1087
Keokuk, Iowa 52632-1087
Ms. Vicki Seeck
Attorney at Law
600 Union Arcade Bldg
111 E 3rd St.
Davenport, Iowa 52801
51803
Filed June 16, 1992
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
CHARLES KRATZER,
Claimant,
vs.
File Nos. 954475 and 943924
E.I. DUPONT DeNEMOURS & CO.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
KEMPER INSURANCE CO.,
Insurance Carrier,
Defendants.
___________________________________________________________
51803
Claimant has failed to show by a preponderance of the
evidence that he suffered burn injuries that resulted in
permanent physical impairment.
2700
Filed June 8, 1995
DAVID RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
SUSAN DeKRUIF-BRUSCHER,
Claimant,
vs.
File No. 943938
FOX RIVER MILLS,
EXPEDITED HEARING
Employer,
DECISION
and
(343 IAC 4.44)
THE TRAVELERS,
Insurance Carrier,
Defendants.
________________________________________________________________
2700
Medical mileage accrued prior to April 1, 1995 was ordered
reimbursed at the former rate of $.21 per mile.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
SUSAN DeKRUIF-BRUSCHER,
Claimant,
vs.
File No. 943938
FOX RIVER MILLS,
EXPEDITED HEARING
Employer,
DECISION
and
(343 IAC 4.44)
THE TRAVELERS,
Insurance Carrier,
Defendants.
________________________________________________________________
STATEMENT OF THE CASE
This is a contested case proceeding under Iowa Code chapter 17A.
Claimant, Susan DeKruif-Bruscher, sustained a work-related injury in
the employ of Fox River Mills in 1989 and now seeks medical benefits
under Iowa Code chapter 85.27. Ms. DeKruif-Bruscher filed a petition
seeking relief under the expedited contested case rule at 343 IAC 4.44.
Defendants are employer Fox River Mills and its insurance carrier,
Travelers Insurance Company.
This case was heard and fully submitted in Mason City, Iowa on May 15,
1995. The record consists of claimant's exhibits 1 through 7,
defendants' exhibits A through C and the testimony of claimant and
Linda Williams.
ISSUES
The sole issue presented for resolution is whether certain medical
expenses are compensable as being causally related to the original work
injury.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
Claimant originally filed a petition in arbitration in 1990, alleging a
repetitive injury to the arms and shoulders of December 11, 1989. The
parties eventually entered into an agreement for settlement which was
approved by the agency on July 22, 1991. The agreement for settlement
stipulated that claimant's bilateral upper extremity and shoulder
problems arose out of and in the course of employment, resulting in
both temporary and permanent disability, and specifically states:
This Agreement acknowledges that Claimant has a functional
disability and that certain symptomology related to the injury
and the permanent functional disability exists. These symptoms
are expected to continue indefinitely, to a greater or lesser
degree, as conditions and Claimant's activity level vary.
The agreement for settlement further set out that defendants remained
responsible for authorized medical care, provided that such care is
causally related to the work injury.
Causation is the dispute with respect to the medical benefits sought
here, except for 330 miles in unreimbursed mileage which claimant
accrued when she visited the University of Iowa Hospitals and Clinics
in August 1994 at defendants' request. Defendants have furnished no
explanation whatsoever for their failure to reimburse this mileage.
According to a letter dated September 30, 1994, case manager Linda
Williams rejected certain prescription expenses because a recent
diagnosis of fibromyalgia rendered by Dr. Robin Hovis was for a
condition which Williams did not think related to the 1989 injury.
This position is apparently because of a previous diagnosis of
myofascial pain syndrome reached by M. Paul Strottmann, M.D., also of
the University of Iowa Hospitals and Clinics on May 2, 1990, and
attached to the agreement for settlement. Dr. Hovis wrote on February
17, 1995 that fibromyalgia is a chronic pain syndrome of uncertain
etiology and that it was "unclear if her current symptoms relate to the
previous diagnosis of myofascial pain." Dr. Hovis went on to note
occasional reports of fibromyalgia beginning with myofascial pain, but
opining that in general the condition has insidious onset without clear
antecedent trauma.
Dr. Strottmann, on the other hand, wrote on May 2, 1995 that his
earlier diagnosis of fibromyalgia on April 7, 1992 was based on a
finding of increased pain and more widespread tenderness, but that the
symptoms and physical findings represented "a continuation of the
symptoms and findings" noted in 1990. Dr. Strottmann concluded that
the fibromyalgia was likely related to his previous diagnosis of
myofascial pain, and that the current condition arose from the
previously diagnosed condition.
Of course, myofascial pain syndrome was not the only diagnosis offered
with respect to the 1989 injury. Documents attached to the settlement
agreement include an evaluation by Kenneth B. Washburn, M.D., dated
April 26, 1990, in which Dr. Washburn reported a diagnosis of bilateral
upper extremity pain, etiology unknown, without nerve entrapment and a
history of earlier thoracic outlet surgery. Dr. Washburn also reported
that Dr. Thomsen believed claimant might have "a fibromyositis syndrome
or even some systemic collagen vascular disorder and a rheumatology
consult was suggested. On April 11th, she saw Dr. Trimble who felt
that this was a regional pain syndrome "
This diversity of opinion as to the condition claimant suffered from in
1989 is a likely explanation for why the condition was not identified
in the agreement for settlement other than "bilateral upper extremity
and shoulder problems." Indeed, agency experience with soft tissue
repetitive motion injuries indicates that expert disagreement as to the
correct diagnosis is much more the rule than the exception in such
cases.
However, if it be assumed that both of Dr. Strottmann's diagnoses are
correct, the basis upon which defendants have denied liability, his
opinion on causation is still accepted as the most persuasive. Dr.
Strottmann has been a treating physician over an extended time and has
had an opportunity to see claimant both in 1990 and in 1994.
CONCLUSIONS OF LAW
The party who would suffer loss if an issue were not established has
the burden of proving that issue by a preponderance of the evidence.
Iowa R. of App. P. 14(f).
The employer shall furnish reasonable surgical, medical, dental,
osteopathic, chiropractic, podiatric, physical rehabilitation, nursing,
ambulance and hospital services and supplies for all conditions
compensable under the workers' compensation law. The employer shall
also allow reasonable and necessary transportation expenses incurred
for those services. The employer has the right to choose the provider
of care, except where the employer has denied liability for the injury.
Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second
Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975).
The symptoms for which disputed treatment and medications were sought
in this case were essentially the same at the time of the agreement for
settlement and, although perhaps somewhat increased, as when claimant
was seen again by Dr. Strottmann in 1992. As noted, it is extremely
common for different practitioners to label soft tissue symptomotology
with varying diagnoses, such as has been the case here. Dr.
Strottmann, who changed his diagnosis to fibromyalgia, believes a
causal nexus to the original injury exists. Dr. Hovis finds it unclear
if current symptoms relate to the previous diagnosis, but notes
occasional reports of fibromyalgia beginning with myofascial. It is
held that claimant has met her burden of proof in establishing the
necessary causal nexus between the original compensable injury and the
medical benefits sought in these proceedings.
Those benefits include the University of Iowa bill for Dr. Hovis
totalling $131.00 (Claimant's Exhibit 3) and prescription costs
totalling $66.61 shown on exhibit 2 ($21.23 for Arthriten, $30.45 for
Ascriptin and $14.90 for Salsalate).
Claimant also accrued mileage of 330 miles to see Dr. Hovis. Under
rule 343 IAC 8.1, mileage incident to the use of a private automobile
is reimbursed at a rate "the same as the state of Iowa reimburses its
employees for travel." In recent years, the state has reimbursed
employees at the rate of $.21 per mile. Effective April 1, 1995, state
employees of executive branch agencies are reimbursed for use of
private automobiles at the rate of $.24 where a state vehicle is not
available. There is no showing that a state vehicle was available to
claimant in this case. Nonetheless, the mileage was accrued prior to
April 1, 1995, and is reimbursable at the former rate of $.21.
ORDER
THEREFORE IT IS ORDERED:
Defendants shall pay the University of Iowa Hospitals and Clinics bill
totalling one hundred thirty-one and 00/100 dollars ($131.00), along
with mileage expenses totalling sixty-nine and 30/100 dollars ($69.30).
Defendants shall also reimburse claimant for prescription costs
totalling sixty-six and 61/100 dollars ($66.61).
Costs, if any, are assessed to defendants.
Signed and filed this _____ day of June, 1995.
________________________________
DAVID RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. R. Ronald Pogge
Attorney at Law
2700 Grand Avenue STE 111
Des Moines, Iowa 50321
Mr. William D. Scherle
Attorney at Law
8th Floor Fleming Building
218 Sixth Avenue
Des Moines, Iowa 50309
5-1100; 5-1108; 5-1803
5-1803.1; 5-2206; 5-3200
Filed February 5, 1992
Bernard J. O'Malley
before the iowa industrial commissioner
____________________________________________________________
:
LISA A. KRIEGEL JOHNSON, :
:
Claimant, :
: File Nos. 943939
vs. : 918816
:
WAL-MART, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
NATIONAL UNION FIRE :
INSURANCE COMPANY, :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
___________________________________________________________
5-1100; 5-1108; 5-1803.1; 5-1803; 5-2206
Found 20-year-old claimant incurred a work injury on May 3,
1989, causing a permanent body as a whole impairment and a
10 pound lifting restriction with no lifting above the
mid-chest level. Her right shoulder injury was a body as a
whole injury. Claimant incurred a 30% industrial disability.
5-1803; 5-1803.1; 5-1100; 5-1108; 5-2206; 5-3200
Found 20-year-old claimant incurred a work injury on
February 22, 1990 to her left shoulder causing a permanent
body as a whole impairment. Claimant awarded 12% industrial
disability.
Found Second Injury Fund not liable to claimant for any
benefits.
before the iowa industrial commissioner
____________________________________________________________
_____
:
JAMES W. SARAZIN, :
:
Claimant, : File No. 943942
:
vs. : A P P E A L
:
CEDAR RAPIDS MEATS d/b/a : D E C I S I O N
FARMSTEAD FOODS, :
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
_____
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal. The decision of the deputy
filed March 26, 1992 is affirmed and is adopted as the final
agency action in this case.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of December, 1992.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. James E. Shipman
Attorney at Law
115 Third St. SE, Ste 1200
Cedar Rapids, Iowa 52401-1266
Mr. Gene R. LaSuer
Ms. Becky S. Knutson
Attorneys at Law
2300 Financial Center
Des Moines, Iowa 50309
9998
Filed December 21, 1992
BYRON K. ORTON
MAM
before the iowa industrial commissioner
____________________________________________________________
_____
:
JAMES W. SARAZIN, :
:
Claimant, : File No. 943942
:
vs. : A P P E A L
:
CEDAR RAPIDS MEATS d/b/a : D E C I S I O N
FARMSTEAD FOODS, :
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
_____
9998
Summary affirmance of deputy's decision filed March 26,
1992.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
JAMES SARAZIN, :
:
Claimant, : File No. 943942
:
vs. : A R B I T R A T I O N
:
CEDAR RAPIDS MEATS d/b/a : D E C I S I O N
FARMSTEAD, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition
of claimant, James W. Sarazin, against his employer, Cedar
Rapids Meats d/b/a Farmstead Foods, self-insured employer.
For the record, it is noted that defendant was represented
by Charles D. Crook, III, an attorney for the Commissioner
of the Insurance Division of Iowa, Trustee for Workers'
Compensation Claimants of Cedar Rapids Meats, Inc. The case
was heard on March 9, 1992, at the Linn County courthouse.
The record consists of the testimony of claimant. The
record also consists of claimant's exhibits 1-8 and 10.
Claimant's exhibit 9 was not admitted on the grounds of
relevancy.
issues
The issues to be determined are: 1) whether claimant
received an injury which arose out of and in the course of
employment; 2) whether there is a causal relationship
between the alleged injury and the disability; 3) whether
claimant is entitled to temporary disability/healing period
benefits or permanent disability benefits; 4) the rate to be
used in calculating any benefits due; 5) whether claimant is
entitled to medical benefits pursuant to section 85.27 and
an independent medical exam pursuant to section 85.39; and,
6) whether claimant is entitled to penalty benefits pursuant
to section 86.13.
findings of fact
The deputy, having heard the testimony and considered
all the evidence, finds:
Claimant is 57 years old and single. He obtained a GED
while he served in the U.S. Marine Corps. After three years
in the Marines, claimant was honorably discharged.
Subsequent to his military career, claimant obtained
employment in a variety of fields. He worked in an auto
assembly plant. He worked as a vegetable cook. Claimant
Page 2
drove an ice cream truck, later, a laundry truck and even a
fork lift truck. Claimant operated lathes, machines and
table top woodworking saws.
In November of 1967, claimant became an employee of
Wilson's Foods, the precursor of Cedar Rapids Meats d/b/a
Farmstead Foods. Claimant started as a scaler in the beef
cooler. He held that position until 1979 when the beef unit
was discontinued and claimant transferred to the hog unit as
a scaler.
As a scaler, claimant engaged in repetitive activities.
Every hour he was required to lift as many as 100 forty
pound boxes onto a scale for measuring and marking.
Claimant moved the products from the right line to the left.
He was required to twist to the right side, pull the boxed
products onto the scale and then move the product to the
left. Often, the duties necessitated bending over the line,
or lifting 40 pound boxes and stacking them as high as seven
boxes.
Claimant developed back problems in 1982. After having
obtained medical attention, including a L5-4 lumbar
laminectomy, claimant returned to work. In August of 1985,
all restrictions were lifted. Claimant returned to his
regular duties at work, with regular wages.
Claimant continued working for defendant-employer in
his regularly assigned duties until approximately two weeks
before the plant closing. Claimant testified he began
experiencing difficulties in the low back area. According
to claimant, his back hurt, he moved in a bent position, he
took 12 Advil per day and consequently, claimant requested
annual leave. At the same time, claimant was experiencing
arm pain. The last day he worked was February 23, 1990.
However, medical evidence establishes there is no evidence
of reported low back problems until March of 1990.
On March 17, 1990, claimant had a semi-hemilaminectomy
at the L4-5 level. Hugh P. MacMenamin, M.D., performed the
surgery. He diagnosed the condition as acute sciatica and a
sequestered disc in the lumbar spine. (Claimant's exhibit
1, page 14, lines 2-20) Initially, Dr. MacMenamin did not
determine a cause for claimant's back condition. Later, Dr.
MacMenamin opined that claimant's work could have made a
significant contribution to claimant's condition. (Cl. ex.
1, p. 17, ll. 1-21) Dr. MacMenamin also opined that work
could be a prominent factor in producing claimant's disc
disease. However, he was not certain.
Dr. MacMenamin opined that claimant reached maximum
medical improvement on January 30, 1991. Claimant was
restricted from bending, lifting and twisting as well as
lifting more than 40 pounds. (Cl. ex. 1, p. 23, ll. 18-21;
p. 33, ll. 15-20)
After claimant was released from his doctor's care on
January 30, 1991, claimant sought and found employment as a
security guard. Initially he worked six days a week for
nine hours per day at one of the local colleges. Later
Page 3
claimant's hours were reduced to 10 hours per week and
claimant was required to drive to Iowa City. Claimant then
voluntarily terminated his employment. Since terminating
his position claimant has been unemployed. He has applied
for several jobs including one at General Mills.
conclusions of law
The first issue to address is whether claimant's low
back condition is the result of an injury which arose out of
and in the course of claimant's employment.
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. The words "arising out of" refer to the
cause or source of the injury. The words "in the course of"
refer to the time, place and circumstances of the injury.
Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986);
McClure v. Union, et al., Counties, 188 N.W.2d 283, 287
(Iowa 1971).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296,
297 (Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
A personal injury contemplated by the workers'
compensation law means an injury, the impairment of health
ove felt low back pain, his complaints
were not voiced to the plant nurse despite the fact that
claimant had made visits to the nurse for arm pain. Nor was
any back injury reported by claimant to any supervisors.
During February of 1990, claimant requested a week of annual
leave which was granted to him. The last day he worked was
February 23, 1990. Claimant testified he only "had a little
back pain", and that his arm was his major concern.
This deputy notes that even if claimant had "a little
back pain", he neglected to report the pain to the plant
physician, J. Quetsch, M.D., who on February 23, 1990,
examined claimant for arm pain only. There was no reference
to any back problems (Ex. 7, p. 11).
After his week of annual leave, claimant was laid off
from the plant due to a lack of work. According to
claimant's testimony, he went for a walk and he experienced
slight pain in his back and down his left side. After his
walk, he experienced pain in his back, down both legs and
into his foot. Claimant testified that gradually the pain
worsened to the point that claimant had to crawl up the
stairs. As a result, claimant on March 17, 1990, called for
an ambulance to transport him to St. Luke's Hospital.
The hospital notes for March 17, 1990, reveal that
claimant had a history of back pain for several days (Ex. 7,
p. 25). The history taken in the emergency room is
inconsistent with claimant's testimony that he experienced
back pain in February of 1990.
Likewise, the history taken by MacMenamin for March 17,
1990, is inconsistent with the history given to Marvin H.
Dubansky, M.D., on August 9, 1991.
Dr. MacMenamin's notes reveal that:
ADMISSION DATE: 3/17/90
The patient is a 54 year old white male who has
just been laid off from Farmstead. He developed
low back pain two days ago and pain down the left
posterolateral thigh. The patient came to the
Page 5
Trauma Center at St. Luke's Hospital with
excruciating pain. He was not able to walk and
was not getting any relief from analgesia at home.
The patient has had disk surgery approximately
eight years ago by Dr. Roach. He has done well
since that time until this time. He does not
remember any specific incident or injury.
(Emphasis added)
(Ex. 7, p. 26)
On the other hand, the history given to Dr. Dubansky is
directly contrary. That history reveals a specific trauma.
The history related in Dr. Dubansky's report of August 9,
1991, reads in relevant part:
HISTORY
The patient states that he had surgery for a
herniated disc while working for the same employer
in 1982. He got along fairly satisfactorily until
February of 1990. He had had a carpal tunnel
release carried out a couple of years before, but
then had a lot of swelling in his right arm in
February of 1990, was using an elastic bandage and
taking a lot of Motrin. He said that on or about
February 18th he hurt his back. His job entailed
running an electronic scale. Apparently he would
have to lift boxes from a stack that weighed 40 to
60 pounds and place them on the scale. His back
hurt a little then, but over the next few days it
seemed to get worse. He received a letter that he
no longer had insurance so he didn't go to the
doctor, but he waited a few more days, but he had
pain in the leg, which was so severe that he had
to go to the hospital by ambulance.
He was seen, examined and had an MRI which
revealed a probable ruptured herniated nucleus
pulposus at L4/5 on the left.
On March 27, 1990 he had surgery with removal of a
large sequestrated fragment at L4/5 on the left.
(Emphasis added)
(Ex. 7, p. 12)
Finally, the notes of IMC for January 30, 1991,
indicate a third history. Those notes provide:
30 Jan 91: James Sarazin is seen for evaluation
for impairment rating. The patient is a
55-year-old white male who underwent L5-4 lumbar
laminectomy for a left L5 radiculopathy in 1982.
At that time he was lifting pallets at work and
developed pain. He was seen and treated by Dr.
Roach. He did well following this until March
1990. After he was laid off for several weeks, he
noted the onset of left leg pain again. He states
he had had several episodes of low back pain when
he was working. He developed a full blown lumbar
Page 6
disc syndrome with sciatica and underwent again
L4-5 semi-hemilaminectomy and excision of a
sequestered disc. Again he has done well since
that time, although he now complains of some
numbness in the left foot and occasional aching in
his back. He uses 5-6 aspirin a day sometimes
though occasionally he won't use any. He uses
Aspercreme on his back. He is not working. He is
on unemployment. (Emphasis added)
(Ex. 7, p. 5)
It is acknowledged that claimant suffered from
degenerative disk disease. However, Dr. MacMenamin cannot
say with absolute certainty what caused that degenerative
disk disease. (Cl. Ex. 1, p. 25, ll. 15-23). It is
difficult for this deputy to comprehend which historical
rendition claimant is espousing. Claimant seems to be
alleging a cumulative trauma, yet there are references to
specific traumatic events. Each history which was related
by claimant was different. Claimant has not consistently
told his version of the alleged work injury. The versions
are inconsistent. Claimant is not a credible historian. He
has not convinced this deputy that he has sustained an
injury which arose out of and in the course of his
employment. Claimant has failed to meet his burden of
proof.
order
THEREFORE, IT IS ORDERED:
Claimant takes nothing from these proceedings.
Each party shall bear its own costs pursuant to rule
343 IAC 4.33.
Signed and filed this ____ day of March, 1992.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. James E. Shipman
Attorney at Law
1200 MNB Building
Cedar Rapids, Iowa 52401
Mr. Charles S. Crook, III
Attorney at Law
Suite 1100, 218 Sixth Avenue
Fleming Building
Page 7
Des Moines, Iowa 50309
1100; 1400; 1402.20; 1402.30; 2902
Filed March 26, 1992
MICHELLE A. McGOVERN
before the iowa industrial commissioner
____________________________________________________________
:
JAMES SARAZIN, :
:
Claimant, : File No. 943942
:
vs. : A R B I T R A T I O N
:
CEDAR RAPIDS MEATS d/b/a : D E C I S I O N
FARMSTEAD, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
1100; 1400; 1402.20; 1402.30; 2902
Claimant could not prove by a preponderance of the evidence
that he had sustained an injury which arose out of and in
the course of his employment. The record was filled with
inconsistencies. Claimant was a very poor historian. There
were several versions of the alleged work injury. The
undersigned was unable to determine whether claimant was
alleging that his injury was cumulative or whether claimant
was alleging a specific traumatic event. Claimant was not
credible.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
STEVEN M. JETTER, :
:
Claimant, : File No. 943950
:
vs. : A R B I T R A T I O N
:
CLAUDE BARKER, : D E C I S I O N
:
Employer, :
Defendant. :
____________________________________________________________
statement of the case
This is a proceeding in arbitration brought by Steven
M. Jetter against Claude Barker based upon injuries Jetter
sustained on July 8, 1988. Jetter seeks compensation for
temporary total disability and payment of medical expenses.
The primary issue to be determined is whether an
employer-employee relationship existed between Jetter and
Barker at the time of the injury. Barker contends that
Jetter was an independent contractor or was otherwise
self-employed. The contingent issues include whether there
was injury which arose out of and in the course of
employment with Barker, determination of the extent of any
entitlement to temporary total disability and the weekly
rate of compensation. The only issue regarding medical
expenses is that of liability. Jetter contends that the
period of disability ended in late October 1988, while
Barker contends that it was on the last date that claimant
was seen by a physician. Jetter contends that the rate of
compensation should be based upon earnings of $110 per week,
while Barker contends that the average earnings were
approximately $70 per week.
The case was heard at Sioux City, Iowa on May 15, 1991.
The record in the case consists of testimony from Steven M.
Jetter, Claude Barker and LeRoy Kent. The record also
contains claimant's exhibits 1, 6, 7 and 7A.
findings of fact
Having considered all the evidence received, together
with the appearance and demeanor of the witnesses, the
following findings of fact are made.
Steven M. Jetter is a 35-year-old single man who
resides at Sioux City, Iowa. He has been afflicted with
epilepsy since age 10 and takes medication for the
condition.
Jetter has known Claude Barker since 1985 at which time
Page 2
Jetter performed some roofing work as an employee for
Barker. Barker and Jetter then had little contact between
1985 and 1988.
In 1988, Barker and Jetter entered into an agreement
wherein Jetter assisted Barker in performing some roofing
work in Sioux City, Iowa. Barker had two or three houses to
roof for general contractor LeRoy Kent. There may also have
been other roofing work. According to Barker, each of
Kent's houses usually involved approximately 60 squares of
roofing and required approximately two weeks of work.
According to Barker, the arrangement was that Jetter
was paid $10 per square, but was placed on the job with the
understanding that he would be responsible for himself.
According to Barker, Jetter was working for himself. Barker
did, however, pay Jetter. Barker also provided the tools
which Jetter used. Barker is the only person who paid
Jetter for the roofing work. Before placing Jetter on the
job, Barker consulted with LeRoy Kent.
According to Jetter, he was to be paid $5 per square.
According to Jetter, in an average day 4-5 squares of
shingles would be laid and approximately 25 squares would be
laid weekly. Jetter's testimony that Barker instructed him
in how to lay shingles, set the hours and days of work and
provided Jetter with transportation to and from the work
sites is uncontradicted. The materials used for roofing
were provided by the general contractor, LeRoy Kent.
Before commencing work on any of the projects, Jetter
did not provide Barker or anyone else with a written bid,
estimate or other type of document. No written contracts of
any type existed between Jetter and either Barker or Kent.
Jetter was paid in cash. Neither Jetter nor Barker
maintained any records of the amounts which were paid to
Jetter or the dates of payment.
It is found that Jetter's testimony regarding laying
approximately 25 squares of shingles per week and being paid
$5 per square is correct. This computes to average weekly
earnings of $125. The findings are consistent with Barker's
Page 3
testimony that a typical LeRoy Kent house contained 60
squares of shingles and required approximately two weeks to
complete.
On July 8, 1988, while roofing a house, Jetter had an
epileptic seizure and fell to the ground, a distance which
has been estimated at from 35-50 feet. In the fall, he
sustained fractures of his L1 and L2 vertebrae and of the
right ankle (exhibit 7). In a report dated August 29, 1988,
the treating surgeon, Daniel M. Youngblade, M.D., indicated
that claimant was still recovering, but that a good recovery
was expected and that claimant should not have any permanent
injury or defect (exhibit 6). The record does not contain
any medical evidence showing when claimant was released to
return to work. Therefore, claimant's testimony that he was
released effective October 25, 1988 is accepted as being
correct. From July 8 to October 25, 1988 is a span of 15
weeks, 5 days. That is a reasonable amount of time to allow
healing of a fractured ankle and fractured vertebrae.
It is found that all of the charges from Sioux City
Radiological Group, P.C., as shown in exhibit 1, are related
to the fall injury. The evidence shows that claimant fell
on his head. Studies for head injury are therefore
certainly appropriate.
conclusions of law
There is no dispute in this case with regard to the
fact that Jetter fell from the roof or that his medical
expenses were incurred in treating the injuries sustained in
that fall or of the reasonableness of the amount of those
charges. The fighting issue is the employment status.
In this case, it is clear that Steven Jetter was not in
the business of working as a self-employed roofing
contractor. He did not even own roofing tools. Jetter was
relatively inexperienced and had to be shown how to perform
the roofing by Barker. There is nothing in the evidence to
indicate that Steven Jetter ever operated as a self-employed
roofer. In this case, he worked when, where and in the
manner specified by Barker. He was paid according to the
output, namely the number of squares of roofing which were
completed. Jetter has certainly made a prima facie showing
that he is an employee. Nelson v. Cities Serv. Oil Co., 259
Iowa 1209, 146 N.W.2d 261 (1966); Henderson v. Jennie
Edmundson Hosp., 178 N.W.2d 429 (Iowa 1970).
Page 4
Barker contends that Jetter was either self-employed or an
independent contractor. He contends that it was their
agreement that Jetter was responsible for himself and would
not be considered an employee. While considerable weight is
to be given to the contractual arrangement of the parties,
the law clearly states that one who is in fact an employee
cannot by contract or otherwise waive his right to workers'
compensation benefits. Iowa Code sections 85.3 and 85.18.
Any agreement in which Jetter waived his rights as an
employee would be void as in violation of public policy.
Barker has the burden of proving that Jetter was an
independent contractor. Swain v. Monona County, 163 N.W.2d
918 (Iowa 1969); Mallinger v. Webster City Oil Co., 211 Iowa
847, 234 N.W. 254 (1929).
The evidence in this case simply does not support
Barker's contention. Barker was responsible to LeRoy Kent
for the roofing jobs. Jetter had no direct contact with
Kent. The evidence in this case is overwhelmingly clear
that Steven Jetter was an employee of Claude Barker, despite
Barker's attempts to avoid the legal responsibilities for
withholding, taxes, insurance and other obligations which
arise as a matter of law when an employer-employee
relationship is created and work is performed in that
relationship for which wages or other compensation is paid
or payable. It is therefore concluded that Steven M. Jetter
was neither self-employed nor an independent contractor.
Claude Barker is therefore responsible to pay temporary
total disability and medical expenses under the provisions
of chapter 85 of The Code of Iowa.
Normally when a person afflicted with epilepsy falls
and sustains injury in that fall, those injuries are held
not to arise out of the employment. An exception exists,
however, when the employment places the employee in a
position of increased risk. A classic example of the
increased risk exception is where the employee works at
heights, as in this case. It is therefore concluded that
the injuries Jetter sustained in his fall arose out of and
in the course of his employment with Claude Barker. 1
Larson Workmen's Compensation Law, section 12.00.
It has previously been found that claimant's period of
recovery ended October 25, 1988. This entitles him to
recover 15 weeks, 5 days of temporary total disability
compensation payable commencing July 8, 1988.
It was stipulated that Jetter was single and had one
exemption. It has been previously found that Jetter's
average earnings while employed by Barker were $125 per
week. This converts to a weekly rate of compensation of
$82.66.
An attachment to the prehearing report showed the
claimant's medical expenses to be as follows:
Page 5
Sioux City Radiological Group, P.C. $ 635.00
Siouxland Health Services, Inc. 252.00
Daniel M. Youngblade, M.D. 601.00
St. Luke's Medical Center 3,070.86
VHA of the Midlands Home Medical Supply 41.95
Total $4,600.81
The only issue in that regard which was identified was
the issue of liability. Barker, having been found to be
claimant's employer, is therefore responsible for payment of
those expenses.
order
IT IS THEREFORE ORDERED that Claude Barker pay Steven
M. Jetter fifteen and five-sevenths (15 5/7) weeks of
compensation for temporary total disability at the rate of
eighty-two and 66/100 dollars ($82.66) per week payable
commencing July 8, 1988.
IT IS FURTHER ORDERED that the entire amount thereof is
past due and shall be paid to Jetter in a lump sum together
with interest computed pursuant to section 85.30 of The Code
from the date each payment came due until the date of actual
payment.
IT IS FURTHER ORDERED that Claude Barker pay the
medical expenses incurred by Steven M. Jetter as follows:
Sioux City Radiological Group, P.C. $ 635.00
Siouxland Health Services, Inc. 252.00
Daniel M. Youngblade, M.D. 601.00
St. Luke's Medical Center 3,070.86
VHA of the Midlands Home Medical Supply 41.95
Total $4,600.81
IT IS FURTHER ORDERED that the costs of this proceeding
are assessed against Claude Barker pursuant to rule 343 IAC
4.33.
Page 6
IT IS FURTHER ORDERED that Claude Barker file claim activity
reports as requested by this agency pursuant to rule 343 IAC
3.1.
Signed and filed this ______ day of ____________, 1991.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Daniel C. Galvin
Attorney at Law
922 Douglas Street
P.O. Box 3223
Sioux City, Iowa 51102
Mr. Glenn A. Metcalf
Attorney at Law
P.O. Box 442
Moville, Iowa 51039
1402.10; 1402.30; 1504
1801; 2001; 2002; 3001
Filed July 31, 1991
MICHAEL G. TRIER
before the iowa industrial commissioner
____________________________________________________________
:
STEVEN M. JETTER, :
:
Claimant, : File No. 943950
:
vs. : A R B I T R A T I O N
:
CLAUDE BARKER, : D E C I S I O N
:
Employer, :
Defendant. :
____________________________________________________________
1402.10; 1504; 2001; 2002
Claimant, an epileptic, fell from a roof while performing
roofing work for the alleged employer. The alleged employer
contended that the claimant was self-employed or an
independent contractor. The evidence overwhelmingly showed
the claimant to be an employee. He did not even own his own
roofing tools. He was paid by the alleged employer and had
no contact with the general contractor at the project. The
alleged employer set the days and hours of work. The
alleged employer's testimony, even if true, that the
claimant agreed he would be responsible for himself, was
held to be void as in contravention of Code sections 85.3
and 85.18.
1402.30
Even though claimant fell as a result of an epileptic
seizure, the fact that he was working at heights made the
injuries arise out of the employment.
3001
Where the evidence was extremely vague and conflicting, it
was found that the average weekly earnings of the claimant
were $125 per week. Neither party had any written record of
claimant's actual earnings.
1801
Where there was no medical evidence in the record to mark
the end of the healing period, the claimant's testimony of
the date he was released by his physician seemed reasonable
and was relied upon.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
SUZANNE M. KNEPPER, :
: File No. 943954
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
JOHN DEERE DUBUQUE WORKS OF :
DEERE & COMPANY, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Suzanne
M. Knepper, claimant, against John Deere Dubuque Works of
Deere & Company, employer (hereinafter referred to as
Deere), a self-insured defendant, for workers' compensation
benefits as a result of an alleged injury on July 12, 1988.
On August 14, 1991, a hearing was held on claimant's peti
tion and the matter was considered fully submitted at the
close of this hearing.
The parties have submitted a prehearing report of con
tested issues and stipulations which was approved and
accepted as a part of the record of this case at the time of
hearing. The oral testimony and written exhibits received
during the hearing are set forth in the hearing transcript.
According to the prehearing report, the parties have
stipulated to the following matters:
1. On July 12, 1988, claimant received an injury which
arose out of and in the course of his employment with Deere.
2. Claimant is not seeking temporary total disability
or healing period benefits in this proceeding.
3. If the injury is found to have caused permanent
disability, the type of disability is an industrial disabil
ity to the body as a whole.
4. If permanent disability benefits are awarded, they
shall begin as of July 13, 1988.
5. Claimant's gross weekly rate of compensation is
$653.31 and she is entitled to marital status and four
exemptions. The stipulated rate contained in the prehearing
report was not honored because it was not consistent with
the commissioner's published rate booklet for an injury
occurring in July of 1988. The proper rate according to
this booklet is $402.51.
Page 2
6. All requested medical benefits have been or will be
paid by defendant.
issue
The only issue submitted by the parties for determina
tion in this proceeding is the extent of claimant's entitle
ment to permanent disability benefits.
findings of fact
Having heard the testimony and considered all the evi
dence, the deputy industrial commissioner finds as follows:
A credibility finding is necessary to this decision as
defendant places claimant's credibility at issue during
cross-examination as to the nature and extent of the injury
and disability. From her demeanor while testifying,
claimant is found credible.
Claimant has worked for Deere since November 1969 and
continues to do so at the present time. She has been
employed at Deere as a keypunch operator, lead keypunch
operator, and a computer programmer. Since 1979, she has
been performing the job called a control terminal operator.
This job consists of several duties which rotate on a regu
lar basis but one of these duties is to process phone com
plaints from fellow Deere employees in an effort to solve
computer operation problems. Claimant takes corrective
action by referring to her various reference manuals at her
work station and making corrective entries into the computer
using her keyboard. This job is rotated between claimant
and another person. Usually the job involves spending 30 to
40 percent of the day on the phone. In this job claimant is
also assigned to other tasks in the computer room which
require moderate to repetitive lifting, stooping, bending
and twisting. A task involving delivery of mail in this job
has been discontinued since the injury. Claimant's supervi
sors consider claimant as an excellent employee and rate her
performance as exceeding their expectations.
On or about September 14, 1988, claimant injured her
hips, low back, upper back and neck and shoulders while per
forming her work at Deere. A mail truck she was driving was
struck broadside by a forklift tow truck driven by another
employee. Claimant received almost immediate treatment from
the Deere plant physician, Hugh McClenahan, M.D., for
bruises, stiffness and pain in the injured areas of her
body. However, despite this treatment, claimant continued
to experienced persistent low back, upper back and neck pain
over the next three years. During this time she was treated
in addition to Dr. McClenahan by a specialist of physical
medicine, Paulette Lynn, M.D. Claimant was also evaluated
for possible disc injury by a neurosurgeon P. R. Sterrett,
M.D. The consensus diagnosis of the specialists was that
claimant was suffering from chronic myofascitis or soft tis
sue injury. They rejected any disc or other structural
injury which could be repaired by surgery. As claimant did
not respond well to treatment, she has been evaluated by
physicians at the Sister Kenny Institute in Minneapolis,
Page 3
Minnesota for admission to their pain clinic. Upon a diag
nosis of chronic pain syndrome along with myofascitis, the
Sister Kenny physicians opined that claimant would benefit
from their pain program which is designed to elevate chronic
pain syndrome.
It is found that claimant's chronic pain syndrome, as
well as the chronic myofascitis, are causally connected to
the injury of September 14, 1988. This finding is based
primarily upon the views of Dr. Lynn and the physicians of
the Sister Kenny institute due to their greater expertise in
claimant's type of problems. Dr. Lynn, in her reports,
explains that claimant is suffering from "trigger points"
caused by the work injury. These trigger points are an area
of muscles that cannot relax. This condition results in
pain not only in the areas of the trigger points but in
referred pain to other areas of the body. These trigger
points have not responded to therapy according to Dr. Lynn
due to perpetuating or aggravating factors such as repeti
tive strains at work and a mental element of job stress.
Dr. Lynn encourages claimant to attend the pain clinic to
treat these perpetuating factors. The Sister Kenny Insti
tute explains that although claimant has an organic cause of
pain from myofascitis, this pain has resulted in a body or
brain reaction that is causing further or more aggravation
pain. They recommended intensive inpatient program at their
pain clinic to break this cycle with coping strategies and
physical reactivation. The Deere company physician also
recommends the pain center and claimant is scheduled to
attend this clinic in the near future. As the chronic pain
syndrome is causally connected to the work injury, likewise
it is found that any treatment or disability caused by this
syndrome is likewise work related. Although it is not the
only factor, the work injury of September 14, 1988, remains
a substantial causative factor of claimant's chronic
myofascitis of her neck and back and her chronic pain syn
drome.
As a result of the work injury of September 14, 1988,
claimant has suffered only mild or five percent loss of
earning capacity. Claimant does suffer from a significant
permanent loss of use of her body. The actual percentage of
physical impairment is unimportant to this decision as this
is an industrial disability case. The finding of impairment
is made despite the expressed views of her treating physi
cian that she does not suffer from permanent impairment.
These physicians believe that she will improve with further
treatment especially at the pain center. Such views are not
convincing. These physicians have treated claimant unsuc
cessfully for over three years. During almost all of this
time she has been working under physician imposed restric
tions on her work activity. At the present time, she is
prohibited by Dr. McClenahan from lifting, pushing or
pulling over 15 pounds and from repetitive bending or
stretching of her neck. Dr. McClenahan testified that
despite his labeling of these restrictions as permanent,
they are actually not permanent. This testimony is cer
tainly not convincing. It is clear that today claimant's
work activity is significantly limited due to her chronic
pain. What will happen in the future is speculative.
Page 4
Claimant stated that she would like to work outside of Deere
and various other part-time work after hours but is unable
to do so. Her ability to work after hours in her current
job is also limited.
On the other hand, her disability is very mild.
Claimant, age 40, is a high school graduate. She is contin
uing to perform essentially the same job she had at the time
of her injury. She has neither received any loss of income
or income potential nor has she lost any promotional oppor
tunity. She performs mostly sedentary work and her employer
has greatly accommodated for her disability by allowing fel
low employees to assist her in lifting duties. They have
further accommodated for her disability by securing phone
headsets that are suitable to her neck problems and have
made other economic changes in the work area. Although
claimant has had some fear of the loss of her job and this
fear has been expressed to her physicians, the evidence in
the record indicates that at the present time claimant's
employment is suitable and stable. Given her past work his
tory, claimant is able to perform almost all of the work for
which she is best suited.
conclusions of law
The claimant has the burden of proving by a preponder
ance of the evidence that the work injury is a cause of the
claimed disability. A disability may be either temporary or
permanent. In the case of a claim for temporary disability,
the claimant must establish that the work injury was a cause
of absence from work and lost earnings during a period of
recovery from the injury. Generally, a claim of permanent
disability invokes an initial determination of whether the
work injury was a cause of permanent physical impairment or
permanent limitation in work activity. However, in some
instances, such as a job transfer caused by a work injury,
permanent disability benefits can be awarded without a show
ing of a causal connection to a physical change of condi
tion. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354
(Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980).
The question of causal connection is essentially within
the domain of expert medical opinion. Bradshaw v. Iowa
Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
The opinion of experts need not be couched in definite, pos
itive or unequivocal language and the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa
1974). The weight to be given to such an opinion is for the
finder of fact, and that may be affected by the completeness
of the premise given the expert and other surrounding cir
cumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965).
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal connec
tion, such testimony may be coupled with nonexpert testimony
to show causation and be sufficient to sustain an award.
Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d
Page 5
911, 915 (1966). Such evidence does not, however, compel an
award as a matter of law. Anderson v. Oscar Mayer & Co.,
217 N.W.2d 531, 536 (Iowa 1974). To establish compensabil
ity, the injury need only be a significant factor, not be
the only factor causing the claimed disability. Blacksmith,
290 N.W.2d 348, 354. In the case of a preexisting condi
tion, an employee is not entitled to recover for the results
of a preexisting injury or disease but can recover for an
aggravation thereof which resulted in the disability found
to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963).
Claimant must establish by a preponderance of the evi
dence the extent of weekly benefits for permanent disability
to which claimant is entitled. As the claimant has shown
that the work injury was a cause of a permanent physical
impairment or limitation upon activity involving the body as
a whole, the degree of permanent disability must be measured
pursuant to Iowa Code section 85.34(2)(u). However, unlike
scheduled member disabilities, the degree of disability
under this provision is not measured solely by the extent of
a functional impairment or loss of use of a body member. A
disability to the body as a whole or an "industrial disabil
ity" is a loss of earning capacity resulting from the work
injury. Diederich v. Tri-City Railway Co., 219 Iowa 587,
593, 258 N.W. 899 (1935). A physical impairment or restric
tion on work activity may or may not result in such a loss
of earning capacity. The extent to which a work injury and
a resulting medical condition has resulted in an industrial
disability is determined from examination of several fac
tors. These factors include the employee's medical condi
tion prior to the injury, immediately after the injury and
presently; the situs of the injury, its severity and the
length of healing period; the work experience of the
employee prior to the injury, after the injury and potential
for rehabilitation; the employee's qualifications intellec
tually, emotionally and physically; earnings prior and sub
sequent to the injury; age; education; motivation; func
tional 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 trans
fer for reasons related to the injury is also relevant.
Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).
See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision,
February 28, l985).
In the case sub judice, it was found that claimant has
suffered a five percent loss of her earning capacity as a
result of the work injury. Based upon such a finding,
claimant is entitled as a matter of law to 25 weeks of per
manent partial disability benefits under Iowa Code section
85.34(2)(u) which is five percent of 500 weeks, the maximum
allowable for an injury to the body as a whole in that sub
section.
order
l. Defendant shall pay to claimant twenty-five (25)
weeks of permanent partial disability benefits at the rate
of four hundred two and 51/l00 dollars ($402.51) per week
Page 6
from July 13, 1988.
2. Defendant shall pay accrued weekly benefits in a
lump sum and shall receive credit against this award for all
benefits previously paid.
3. Defendant shall pay interest on weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
4. Defendant shall pay the costs of this action pur
suant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
5. Defendant shall file activity reports on the pay
ment of this award as requested by this agency pursuant to
rule 343 IAC 3.1.
Signed and filed this ____ day of August, 1991.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Stephen W. Scott
Attorney at Law
100 W 12th St
P O Box 703
Dubuque IA 5200l
Mr. Leo A. McCarthy
Attorney at Law
222 Fischer Bldg
P O Box 239
Dubuque IA 52004
5-1803
Filed August 30, 1991
LARRY P. WALSHIRE
before the iowa industrial commissioner
____________________________________________________________
:
SUZANNE M. KNEPPER, :
: File No. 943954
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
JOHN DEERE DUBUQUE WORKS OF :
DEERE & COMPANY, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
5-1803
Extent of permanent disability benefits.