BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
RALPH SNYDER,
Claimant,
vs.
File No. 944044
MERCURY TOOL & ENGINEERING,
A P P E A L
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
and
SECOND INJURY FUND OF IOWA,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
November 15, 1993 is affirmed and is adopted as the final agency
action in this case.
Second Injury Fund shall pay the costs of the appeal, including
the preparation of the hearing transcript.
Signed and filed this ____ day of March, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Tom L. Drew
Attorney at Law
P.O. Box 8476
3209 Ingersoll Ave., Ste. 105
Des Moines, Iowa 50312
Page 2
Mr. Cecil L. Goettsch
Mr. D. Brian Scieszinski
Attorneys at Law
801 Grand Ave., Ste 3700
Des Moines, Iowa 50309-2727
Mr. James F. Christenson
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg.
Des Moines, Iowa 50319
5-1108, 5-1401, 5-1402.20,
5-1402.30, 5-1402.40, 5-3202,
5-3203
Filed March 9, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RALPH SNYDER,
Claimant,
vs.
File No. 944044
MERCURY TOOL & ENGINEERING,
A P P E A L
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
and
SECOND INJURY FUND OF IOWA,
Defendants.
____________________________________________________________
5-1108, 511401, 5-1402.20, 5-1402.30, 5-1402.40, 5-3202,
5-3202
Claimant was awarded 143.4 weeks of benefits from the
Second Injury Fund of Iowa.
The first injury to the left knee caused a three
percent permanent impairment and had a scheduled value of
6.6 weeks. The second injury to the arm caused a ten
percent permanent impairment and had a scheduled value of 25
weeks. Claimant was determined to have a 35 percent
industrial disability with a value of 175 weeks. The net
amount owed by the Second Injury Fund was 143.4 weeks (175
weeks minus 6.6 weeks and 25 weeks equals 143.4 weeks).
Discrepancies of (1) whether the injury date was March
20, 1990 or March 12, 1990, (2) why the VA records did not
record a work injury, (3) whether claimant did or did not
have an arthroscopic examination for the knee at the time of
the first injury and (4) whether claimant began full-time
employment again in July 1992 or July 1993, were outweighed
Page 2
by (1) the fact that claimant reported an injury to employer
when it occurred, (2) employer completed a first report of
injury, (2) employer and insurance carrier determined that
claimant was credible enough to justify making full payment
on this injury claim, (3) four doctors, Dr. Smith, Dr.
Wirtz, Dr. Kirkland and Dr. Rosenfeld determined that
claimant was credible and treated him based on the same
history of this injury that claimant supplied to them and
(4) that the deputy found that claimant was credible and
truthful even though he may have been a poor historian.
Likewise, claimant had a number of health and family
problems that may have affected his recollection over the
three and one-half years after the time of the injury and
before this hearing.
The chief elements in determining industrial disability
were (1) claimant's age, 45 at the time of injury, (2) 10th
grade education with a GED from Iowa Vocational
Rehabilitation, (3) foreclosed from very heavy, heavy and
medium work for 20 years from the time of the injury at age
45 until what is frequently considered as normal retirement
age of 65 which restricts his employability and
concomitantly his earnings capacity, (4) a second injury
that was a traumatic injury which required three surgeries,
(5) a permanent restriction of not to lift more than 15
pounds for the rest of his working life, (6) inability to
find work with his restriction, (7) motivation to find
employment by pursuing Iowa vocational rehabilitation for
approximately one year, (8) a 20 percent actual loss of
earnings at the time of hearing, preceded by a lengthy
period of unemployment and part-time employment, (9) a three
percent permanent impairment to his left knee and (10) a 10
percent permanent impairment to his right arm.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RALPH SNYDER,
Claimant,
vs.
File No. 944044
MERCURY TOOL & ENGINEERING,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
and
SECOND INJURY FUND OF IOWA
Defendants.
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration filed by Ralph
Snyder, claimant, against Mercury Tool & Engineering,
employer, and Employers Mutual Companies, insurance carrier,
and the Second Injury Fund of Iowa, defendants, for benefits
as the result of an alleged injury which occurred on March
20, 1990. A hearing was held in Des Moines, Iowa, on
October 25, 1993, and the case was fully submitted at the
close of the hearing. Claimant was represented by Tom L.
Drew. Defendant-employer and insurance carrier were
represented by Cecil L. Goettsch. Defendant Second Injury
Fund of Iowa was represented by James F. Christenson. The
record consists of the testimony of Ralph Snyder, claimant,
claimant's exhibit 1, pages 1 through 19, defendant-employer
and insurance carrier's exhibit A, pages 1, 2 and 3, and
defendant Second Injury Fund of Iowa's exhibits AA, pages 1,
2, and 3, BB, pages 1 through 17 (minus pages 10 & 11) and
CC, pages 3 through 8. The Second Injury Fund of Iowa
submitted a statement of disputed issues which was labeled
Contentions of the Second Injury Fund at the time of the
hearing. The deputy ordered a transcript of the hearing.
STIPULATIONS
Claimant and defendant-employer and insurance carrier
stipulated:
(1) That claimant sustained and injury on March 20,
1990, to his right arm which arose out of and in the course
of his employment with employer;
(2) That the injury was the cause of temporary
Page 2
disability;
(3) That claimant was paid 41.186 weeks of healing
period benefits at the rate of $224.97 per week for the
period from July 28, 1990 through May 12, 1991;
(4) That the injury was the cause of permanent
disability;
(5) That claimant was paid 25 weeks of permanent
partial disability benefits at the rate of $224.97 per week
based upon a 10 percent permanent impairment of the right
arm;
(6) That the proper rate of compensation was $224.97
per week; and
(7) That the medical benefits were no longer in
dispute.
The Second Injury Fund of Iowa stipulated that the
proper rate of compensation is $224.97 per week.
All of the parties agreed that the purpose of the
hearing was to determine whether there was any liability on
the part of the Second Injury of Iowa.
ISSUES
Claimant and the Second Injury Fund of Iowa submitted
the following issues for determination:
Whether claimant sustained an injury on March 20, 1990,
which arose out of and in the course of employment with
employer;
Whether there is any liability on the part of the
Second Injury Fund of Iowa pursuant to Iowa Code section
85.64 and if so the extent of benefits for which the Second
Injury Fund is liable;
FINDINGS OF FACT
INJURY
It is determined that claimant did, in fact, sustain an
injury on March 20, 1990, which arose out of and in the
course of his employment with employer.
The primary evidence that would indicate that claimant
might not have sustained an injury which arose out of and in
the course of his employment on March 20, 1990, are two
medical notes from the Veterans Administration Hospital
where claimant sought treatment shortly after this injury.
Both notes are dated March 22, 1990.
On the first note the nurse recorded that claimant
complained of sharp pains in his right thumb and wrist for
several weeks and had noted decreased strength in his right
hand and increased pain when lifting. The nurse made no
Page 3
mention of a work-connected injury. On the same entry the
examining physician recorded "No specific injury." The
physician diagnosed tenosynovitis right forearm. The
physician did not mention a work-connected incident.
The second entry at the VA hospital, also dated March
22, 1990, by a licensed physical therapist stated that
claimant said that he has had minor pain in this area for
several months but that the pain had increased markedly in
the past two weeks. The physical therapist did not mention
a work-connected injury.
Normally, this would be evidence that claimant did not
sustain an injury which arose out of and in the course of
his employment on March 20, 1990 to his right arm
(Claimant's Exhibit 1, pages 13 & 14). However, this
evidence is outweighed by the fact that employer filed a
first report of injury on March 23, 1990, in which employer
states that claimant did sustain an injury on March 20, 1990
and that they first learned of the injury on March 21, 1990.
The first report of injury describes that claimant was
loading a 50-pound bag of material into a mixer when the top
of the bag tore off and put the weight of the bag on
claimant's right thumb bending it back. The first report of
injury corroborates claimant's testimony. This information
was all made a matter of record prior to claimant's visit to
the Veterans Administration Hospital.
With respect to the Veterans Administration records,
claimant testified, "I have no idea where they get these
statements because I never said anything like that to
anyone." (Tran. p. 36, 57, 70 & 76). He further denied that
he had had previous problems with his hand (Tran. p. 57).
Claimant testified that the pain became increasingly
worse and extended up his entire right arm causing him to
seek treatment from Kevin Smith, M.D., Peter D. Writz, M.D.,
Mark B. Kirkland, D.O. and Martin S. Rosenfeld, D.O.. All
of these physicians proceeded on a history of the injury to
the right thumb, wrist and arm that claimant described at
the hearing and that is reported on the first report of
injury (Tran. p. 37).
It might be noted, for what it is worth, that employer
and insurance carrier also determined that claimant
sustained an injury to the right arm on March 20, 1990,
which arose out of and in the course of employment with
employer and paid claimant $9,288.11 in healing period
benefits and $5,624.25 in permanent partial disability
benefits. The four doctors named above accepted the history
of injury given by claimant without any dispute or
suspicion. In addition it is determined by this deputy that
claimant's testimony is credible and reliable as did the
employer, the insurance carrier and all four of his doctors.
Wherefore, it is determined that claimant sustained an
injury on March 20, 1990 to this right thumb, wrist and arm
which arose out of and in the course of his employment with
employer.
Page 4
Claimant was credible. Catalfo v. Firestone Tire &
Rubber Co., 213 N.W.2d 506, 509 (Iowa 1973); Erb v. Iowa
State Board of Public Instruction, 216 N.W.2d 339, 342 (Iowa
1974).
LIABILITY OF THE SECOND INJURY FUND OF IOWA
It is determined that claimant sustained a scheduled
member injury to his left leg on July 13, 1985, which caused
a 3 percent permanent impairment to the left leg.
It is further determined that claimant sustained an
injury to the right arm on March 20, 1990, which caused a 10
percent permanent impairment of the right arm.
It is further determined that claimant has sustained a
35 percent industrial disability to the body as a whole. A
35 percent industrial disability results in an entitlement
to 175 weeks of workers' compensation benefits. However,
the liability of the Second Injury Fund is reduced by 6.6
weeks for the injury to the left leg because claimant
sustained a 3 percent loss of the left leg due to the injury
of July 15, 1985 (.03 x 220 = 6.6). The liability of the
Second Injury Fund is further reduced by the liability of
this employer in the amount of 25 weeks based upon a 10
percent permanent impairment of the right upper extremity
which occurred on March 20, 1990, for which employer is
liable (.10 x 250 = 25). Thus, claimant's 175 weekly
entitlement is reduced by 31.6 weeks (6.6 plus 25) and the
Second Injury Fund is liable for 143.4 week of permanent
partial disability benefits.
Iowa Code section 85.64 provides in part as follows:
If an employee who has previously lost, or lost
the use of, one hand, one arm, one foot, one leg,
or one eye, becomes permanently disabled by a
compensable injury which has resulted in the loss
of or loss of use of another such member or organ,
the employer shall be liable only for the degree
of disability which would have resulted from the
latter injury if there has been no pre-existing
disability. In addition to such compensation, and
after the expiration of the full period provided
by law for the payments thereof by the employer,
the employee shall be paid out of the "Second
Injury Fund" created by this division the
remainder of such compensation as would be payable
for the degree of permanent disability involved
after first deducting from such remainder the
compensable value of the previously lost member or
organ.
Lawyer and Higgs, Iowa Workers' Compensation--Law and
Practice, (2nd ed.) section 17-5, page 171, provides, "There
must be permanent disability resulting both from the initial
loss, or loss of use, and from the loss of another such
member or organ."
There is no requirement that the initial loss or loss
Page 5
of use to a hand, arm, foot, leg, or eye be compensable, but
the second must be. Lawyer and Higgs, Iowa Workers'
Compensation--Law and Practice, (2d ed.) section 17-4, page
171.
The Second Injury Fund Act anticipates some degree of
permanent disability sustained as a result of the previous
injury. Keener v. Den Tal Ez Mfg., III Iowa Industrial
Commissioner Report, 152 (1983); Eurom v. Mortenson Co., and
Second Injury Fund of Iowa, file number 935223 (Appeal Decn.
Oct. 28, 1992, affirmed by the district court Oct. 6, 1993).
Claimant has introduced facts which prove that he is
entitled to Second Injury Fund benefits pursuant to the
preceding legal authorities.
Claimant, born April 17, 1944, was 45 years old at the
time of this injury and 49 years old at the time of the
hearing (Tran. pp. 19 & 20). Claimant completed the tenth
grade in high school and obtained a GED through the Iowa
Rehabilitation Services in 1992 (Tran. p. 21). Claimant
completed a certificate course in hydraulics in 1982 or
1983. He testified that he has been able to use this
knowledge in most of his jobs (Tran. p. 21). Claimant
testified that he served in the Navy from January 1960 until
1962 when he received a medical discharge. He contended
that he did not learn any transferable skills in the Navy
(Tran. p.2). Claimant testified that practically all of his
past employments have been primarily in the plastic
manufacturing industry (Tran. pp. 23 & 24).
Claimant testified that he started to work for employer
in March of 1989. He said that it was his responsibility to
keep the machines running. He also stated that this was
physical work and he was required to lift 50-pound bags of
plastic pellets overhead in order to put them in a machine.
Claimant agreed that the job required him to be in good
health in order to perform it. Claimant added that he
enjoyed the work and that he wished that he were still doing
it (Tran. p. 26-28).
The original notice and petition alleges that claimant
injured his left knee on July 13, 1985. Claimant related
that he was on a ladder when his left foot slipped on some
grease, his leg went sideways, his left knee popped and he
immediately felt pain in the left knee. He said his knee
went to the side of his leg. Claimant said that he was sent
to the hospital and that he was treated by Philip G. George,
M.D., an orthopedic surgeon (Tran. pp. 29, 30 & 62).
Dr. George stated on July 18, 1985, that claimant
suffered valgus stress to his left knee which caused him to
feel pain in the medial aspect of the knee. Emergency room
x-rays disclose no fractures. The emergency room fitted
claimant with a knee immobilizer and crutches. Dr. George
diagnosed "Sprain (partial tear) medial collateral ligament,
left knee." (Ex. CC, p. 7).
Dr. George added, "This man has a soft tissue injury of
the knee which will do well on conservative treatment." (Ex.
Page 6
CC, p. 7). Dr. George stated that claimant remained
disabled for work (Ex. CC, p. 8). He released claimant to
return to work as of September 16, 1985 (Ex. CC, p. 5).
On October 16, 1985, Dr. George stated that claimant
appeared "... almost fully recovered from his ligamentous
injury." (Ex. CC, p. 4). Yet on January 16, 1986,
approximately six months after the injury occurred on July
13, 1985, claimant still had occasional aching and localized
swelling at the medial aspect of his left knee. His
physical examination on that date was generally normal but
claimant was advised to persist in his exercises and to
return for a rating in three months (Ex. CC, p. 3). Thus,
in spite of generally favorable findings, nevertheless, it
would appear that Dr. George anticipated some permanent
impairment if he intended to make a rating in three months.
On April 17, 1986, Dr. George performed a thorough
physical examination and diagnosed "Healed sprain medial
collateral ligament, left knee." (Ex. 1, p. 2). Claimant
was released from the care of Dr. George without
restrictions or medications. No significant future problems
were anticipated (Ex. 1, pp. 2 & 3). Nevertheless, Dr.
George assessed a 3 percent permanent impairment of the left
leg in a supplemental statement also dated April 17, 1986.
Dr. George stated on that date, "Based on the physical and
x-ray examinations of the above-captioned patient conducted
in my office it is my opinion that the patient has 3%
permanent partial physical disability of the left leg at the
level of the knee as a result of his industrial trauma of
July 1985." (Ex. 1, p. 1).
Thus, claimant has established that he did sustain a
permanent impairment and a permanent disability to his left
leg which was caused by the injury of July 13, 1985. The
contention of the Second Injury Fund that claimant did not
sustain an injury because he only suffered a sprain which
required no surgery, no further medications and no permanent
restrictions is without merit. Even though in his report of
April 17, 1986, Dr. George dictated a favorable report of
findings on (1) his own treatment and care and (2)
claimant's recovery, he nevertheless, made it clear by a
supplemental statement on the same date that the patient had
sustained a 3 percent permanent partial physical disability
of the left leg at the level of the knee because of this
injury.
This finding of Dr. George is corroborated by
claimant's testimony in which he related that his left knee
gets stiff, tired and weak, that he has to shift weight
bearing to his right knee, and that he was unable to cross
his legs by putting his left foot on his right knee. He
still feels grinding in his left knee (Tran. pp. 32, 33 &
77).
Claimant contended that his left knee will not bend.
If he crosses his left knee over his right knee it causes
pain. If he stands a long time his left knee becomes tired.
Sometimes the left knee will give away. Claimant said that
his left knee is not as strong as his right knee. In order
Page 7
to compensate for the weakness of his left knee he sometimes
shifts his weight to his right knee. Claimant said there is
grinding in the joint of the left knee (Tran. 32, 33 & 77).
The testimony of Dr. George and claimant was not
controverted, contradicted, rebutted or refuted by any
evidence produced by defendant Second Injury Fund nor by any
other evidence in the record. Simply because claimant could
perform his work for employer does not negate the fact that
claimant sustained a permanent impairment and permanent
disability of 3 percent.
Wherefore, it is determined as a matter of fact that
claimant sustained an injury to his left leg on July 13,
1985, which produced permanent disability. Iowa Code
section 85.64.
Claimant contended that Dr. George performed an
arthroscopic examination on his left knee. However, a close
examination of Dr. George's medical records do not disclose
that he did in fact record an arthroscopic examination or
surgery (Ex. CC, pp. 3-8; Ex. 1, pp. 1 & 2). The Second
Injury Fund asserts that this discrepancy discredits
claimant's credibility. It is the finding of this deputy
that claimant's credibility is not affected by this
discrepancy. Discrepancies of this nature are not uncommon
in workers' compensation hearings. Although, normally
physicians would record an arthroscopic examination,
physicians have been known to forget to record material
facts. The doctor's office note could have been lost.
Claimant could be mistaken, however, he describes the
temporary scar he had for a while. It is also possible that
the examination was carried out at a hospital or clinic
rather than Dr. George's office and that this arthroscopic
examination would be recorded on their records rather than
in his own office notes. In any event, whether Dr. George
did or did not perform an arthroscopic examination on
claimant's left knee, the fact remains that Dr. George did
determine that claimant had sustained a 3 percent permanent
partial disability to his left leg, irrespective of whether
an arthroscopic examination was performed or not.
Arthroscopic examination or surgery is not a sine qua non to
a determination that claimant sustained an injury on July
13, 1985, which resulted in permanent impairment and
permanent disability.
Claimant testified that on or about March 20, 1990, he
injured his right thumb and wrist while preparing to dump a
bag of plastic material into a machine. He said that as he
was lifting the bag, the part that he was holding in his
left hand tore off and the weight of the bag hyperextended
his right thumb (Ex. BB, p. 12). Claimant testified that he
reported this to his employer and asked whether he should go
to the doctor and received no response. Claimant related
that he then sought help at the Veterans Administration
Hospital (Tran. pp. 35-37).
The VA records show that at 9:.. (probably 9 a.m.) on
March 22, 1990, that claimant complained of sharp pains in
his right thumb and wrist for several weeks. This note by
Page 8
the nurse adds that claimant had noticed decreased strength
in his right hand and increased pain with lifting (Ex. 1, p.
13). The examining physician then reports "no specific
injury" (Ex. 1, p. 13). The physical examination showed
tender radial aspect of the right wrist and forearm without
swelling but with crepitus. Claimant had a full range of
motion. The examiner diagnosed tenosynovitis of the right
forearm (Ex. 1, p. 13). The note of the physical therapist
at the VA hospital on the same date, March 22, 1990, with no
time given, recorded "He said he's had minor pain in this
area for several months, but pain had increased markedly the
past two weeks." (Ex. 1, p. 14).
Claimant denied he gave this history to the hospital.
He said "... I never said nothing like that to anyone."
(Tran. pp. 36, 57, 70 & 76).
Furthermore, the first report of injury filed by
employer on March 23, 1990, verifies and corroborates
claimant's testimony that he was loading a 50-pound bag of
plastic material into a mixer when the top of the bag tore
off and put the weight of the bag on his right thumb bending
it back. The first report of injury says that the injury
occurred on March 20, 1990 and that the employer became
aware of the injury on March 21, 1990.
At the suggestion of employer, claimant was next seen
by Kevin Smith, M.D., on March 28, 1990 (Tran. pp. 37 & 38).
Dr. Smith recorded that claimant hurt his right thumb on
March 12, 1990 [sic], putting 55-pounds of material into a
mixer. His medical note says that the top part of the bag
tore off and then the bag fell back against claimant's right
thumb bending it backwards. X-rays showed no bone
involvement. Dr. Smith diagnosed "Right thumb tendon strain
and joint strain" (Ex. 1, p. 10). Thus, the first record of
Dr. Smith on March 28, 1990, confirms that claimant related
a work injury and that he proceeded on this history for his
treatment of claimant without disputing it or questioning
it. Dr. Smith's date of injury of March 12, 1990, raises
the suggestion that the injury may have occurred about eight
days before March 20, 1993 and explain why the VA records
mention pain for about two weeks on March 22, 1990.
Claimant next saw Peter D. Wirtz, M.D., an orthopedic
surgeon, as requested by Dr. Smith (Tran. p. 40). Dr. Wirtz
reported on April 30, 1990, that claimant related to him
that he bent his thumb backwards while lifting on March 12,
1990. Thus, the injury may have occurred on March 12, 1990,
about two weeks before claimant was first seen at the VA
hospital. Dr. Wirtz did not dispute or question this
history but proceeded on the basis of it. Dr. Wirtz
diagnosed soft tissue strain ligamentous in nature of the
right wrist. He recommended additional physical therapy.
He thought the condition should heal without specific
residuals (Ex. 1, p. 12). Thus, Dr. Wirtz accepted the
history that claimant traced to lifting the bag at work.
Dr. Wirtz began his report by stating this is a 46-year-old
with right thumb injury on March 12, 1990, which was bent
backwards with lifting (Ex. 1, p. 12).
Page 9
A three phase bone scan was performed at Mercy Hospital
Medical Center on June 28, 1993. Michael A. Disbro, M.D.,
the radiologist, proceeded on a diagnosis of right wrist
strain and concluded as follows, "Severe, erosive
osteoarthritis of the right navicular-trapezium
articulation, suspect remote trauma, though I do not
identify acute fracture." (Ex. 1, pp. 4 & 5). Thus, the
radiologist suspected that an earlier trauma was affecting
claimant's severe osteoarthritis. The bone scan was taken
about two months after the alleged injury date of March 20,
1990 and two and one-half months after the other possible
injury date of March 12, 1993.
Claimant was examined by Mark B. Kirkland, D.O., an
orthopedic surgeon and he reported to Dr. Smith on July 18,
1990. Dr. Smith diagnosed (1) Navicular/trapezial
arthritis, right hand, (2) de Quervain's disease and (3)
carpal tunnel syndrome. He related that claimant stated it
happened back in March of 1990. Thus, Dr. Kirkland confirms
claimant's testimony of an injury in March 1990.
Claimant was laid off due to a shutdown of the third
shift on June 26, 1990 (Ex. 1, p. 16). Claimant was foreman
on the third shift.
Three surgeries were performed in 1990. Dr. Kirkland
on August 22, 1990 performed surgery. He performed another
surgery on September 19, 1990 and Martin S. Rosenfeld, D.O.,
an associate of Dr. Kirkland performed surgery on November
15, 1990 (Tran. p. 41).
Dr. Rosenfeld described these surgeries as a carpal
tunnel release, a de Quervain's release and an achovioplasty
for carpal, metacarpal arthritis of the thumb. Dr.
Rosenfeld indicates that these surgeries were due to an
injury at work in March of 1990 (Ex. 1, p. 8).
Claimant was unable to return to work after these
surgeries because of the lifting restrictions imposed by Dr.
Rosenfeld. On February 15, 1991, Dr. Rosenfeld imposed a
20-pound lifting restriction and indicated that claimant
could only return to work in a light duty capacity (Ex. 1,
p. 9). On July 26, 1991, a 15-pound weight restriction was
imposed by Dr. Rosenfeld (Ex. 1, p. 8A).
According to interrogatories answered by
defendant-employer claimant's job was a material
handler/supervisor on the third shift and the job required
that he must have the use of both hands. Furthermore,
supervisors must have full use of both hands due to work
with machines and parts produced. Employer further added
that claimant could not be an operator (entry-level) because
it was necessary to use both hands in pulling parts out of
the machine, making boxes, and lifting boxes onto pallets.
Van Johnson, vice-president in charge of molding operations,
stated that claimant needed light duty work but employer had
no positions open in that capacity and in fact they never
have any positions available in that capacity (Ex. 1, p.
18).
Page 10
This claimant is foreclosed from all of his previous
employments that required medium, heavy and very heavy
lifting. This is a very substantial loss of employability
and concomitantly loss of earning capacity.
Dr. Rosenfeld stated on August 23, 1991, that using the
AMA Guides and taking all three surgeries into account he
determined that claimant had sustained a 10 percent
permanent physical impairment of the right upper extremity
as a result of the March 19, 1990 injury. He said that half
of this was due to loss of motion and the other half was due
to pain and loss of strength (Ex. 1, p. 8).
Wherefore, based upon (1) the first report of injury,
(2) claimant's testimony, (3) the history given to Dr.
Smith, Dr. Wirtz, Dr. Kirkland and Dr. Rosenfeld and their
acceptance of this history, and (4) the report of Dr.
Rosenfeld dated August 23, 1991, assessing an impairment
rating caused by the March 1990 injury, it is determined
that claimant did in fact sustain an injury to his right arm
on or about March 20, 1993, which arose out of and in the
course of his employment with employer and that the injury
was the cause of permanent impairment and permanent
disability. Iowa Code section 85.64. If the actual injury
date happened to be March 12, 1990, rather than March 20,
1990, it would be immaterial.
Therefore, claimant has met the threshold test of
proving liability on the part of the Second Injury Fund of
Iowa. Iowa Code section 85.64.
With respect to industrial disability resulting from
the combined effects or cumulative effects of both the 1985
injury to the left knee and the 1990 injury to the right
arm, the following factors, among others, are taken into
consideration.
Claimant, in his late 40s, was at or near the peak
earning years of his employment career. Thus, his
industrial disability is greater than it would be for an
older or younger worker. Becke v. Turner-Busch, Inc.,
Thirty-fourth Biennial Report of the Industrial Commissioner
34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II
Iowa Industrial Commissioner Report 426 (1981); McCoy v.
Donaldson Company, Inc., file numbers 752670 & 805300 (App.
Dec. April 28, 1989).
At the same time claimant is young enough to be
retrained to perform other employments. Claimant did in
fact participate in the Iowa Rehabilitation Services Program
for about one year where he completed his GED (Tran. pp. 20
& 21). This speaks well for claimant's motivation to be
retrained, to improve himself and increase his employability
in the competitive labor market. Earlier, claimant took an
automotive course and a hydraulics course. This claimant
can be retrained but it might be difficult at his age.
Conrad v. Marquette School, Inc., IV Iowa Industrial
Commissioner Report 74, 89 (1984).
By completing his GED, claimant has placed himself on a
Page 11
par equivalent to most persons seeking employment in the
competitive employment market who do not have college
training or other specialized training. This may tend to
decrease his industrial disability on the one hand because
it makes him more employable, it also increases his
industrial disability by showing motivation to do the things
necessary to be employed.
The biggest factor in claimant's industrial disability
is the fact that he is now foreclosed from performing very
heavy, heavy or medium work. Prior to this injury claimant
was able to perform any category of work, sedentary, light,
medium, heavy or very heavy. Because of this injury
claimant is now restricted to performing only light duty
work for the reason that Dr. Rosenfeld imposed permanent
restrictions of only lifting 15 pounds. This limitation
greatly restricts claimant's employability in the
competitive labor market (Tran. p. 48). Claimant cited two
incidents where the lifting restriction precluded him from
obtaining two jobs that he attempted to obtain. Michael v.
Harrison County, Thirty-fourth Biennial Report of the
Industrial Commissioner 218, 220 (App. Dec. January 30,
1979); Rohrberg v. Griffin Pipe Products Co., I Iowa
Industrial Commissioner Report 282 (1984). Thus, claimant
is foreclosed from the most plentiful and easiest to obtain
jobs in the competitive employment market which often pay
more because they do involve strenuous work.
Furthermore, claimant was injured at age 45. Normal
retirement age is often considered to be age 65. Therefore,
claimant's permanent restriction from lifting no more than
15 pounds puts him in the category of light work or
sedentary work. Loss of the ability to perform medium,
heavy, and very heavy work for a period of twenty years
greatly impairs, limits and restricts claimant's
employability and concomitantly his loss of earning
capacity. Thus, claimant's loss of earning capacity is
substantial.
Another factor in determining the amount of industrial
disability is the length of time and difficulty claimant
encountered in obtaining new employment. Claimant was off
work or else only performing limited part-time work for
approximately two years from mid-1990 until mid-1992 (Tran.
pp. 58 & 59). Even then, claimant was assisted in obtaining
only part-time employment through the influence of his
father-in-law in September of 1991 (Ex. 1, p. 16, Tran. pp.
48 & 87). Since then claimant has been able to obtain
full-time employment with the same employer in September of
1992. Claimant contended he did not get a full-time
contract with employee benefits until July of 1993 and if
this is the case then his industrial disability would be
even greater (Tran. pp. 49, 58 & 79).
Another significant factor in determining claimant's
industrial disability is his loss of actual earnings which
is an indicator of his loss of earning capacity (Tran. p.
13). Claimant now earns $8.19 per hour and works 40 hours
per week (Tran. p. 50). There is evidence in the record
that claimant's pervious job for employer is now paying $10
Page 12
per hour (Ex. p. 19). This constitutes approximately a 20
percent loss of actual income without taking into
consideration that claimant had little or no income after he
was released to return to work by Dr. Rosenfeld in May of
1991, as stipulated to by the parties, until he obtained
full-time employment in September of 1992 or 1993, whichever
the case may be. Claimant testified that he worked with the
Rehabilitation Services of Iowa for approximately one year.
This would probably be from the dates of the surgeries in
mid-1990 until his part-time employment beginning in
mid-1991.
Claimant testified that he has a number of significant
physical problems with both his left knee and right arm
since these injuries. The left knee problems have been
described previously. Claimant testified that his right
hand is weak and that he is unable to lift any significant
weight with his right hand and wrist. If lifting is
required with the right upper extremity he has to shift the
work load to the right arm rather than the hand or wrist.
Wherefore, based upon (1) the fact that claimant
sustained a traumatic injury to his left knee which caused a
3 percent permanent impairment to that member, (2) that
claimant sustained a traumatic injury to his right thumb,
wrist, hand and an arm which caused a 10 percent permanent
impairment to that member, (3) that claimant is restricted
from lifting more than 15 pounds with his right arm, (4)
that claimant has physical difficulties with the functioning
of his left knee, (5) that claimant's right arm injury
entailed three separate surgeries and still functions
poorly, (6) that claimant has sustained a 20 percent loss of
actual earnings in addition to a long period of unemployment
or only part-time employment, (7) that claimant is
foreclosed from very heavy work, heavy work, and medium work
and is now restricted to light work in his usual occupation
for many years in the plastics industry, (8) that claimant's
injury occurred at the near peak of his earnings career in
his late forties, (9) that claimant has shown motivation to
find work and be employed as evidenced by his voluntary
rehabilitation, (10) that claimant was unsuccessful in his
early attempts to find work, (11) considering all the
factors used to determine industrial disability Peterson v.
Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa
Industrial Commissioner Decisions 654, 658 (App. Dec.
February 28, 1985); Christensen v. Hagen, Inc., vol. I, no.
3, State of Iowa Industrial Commissioner Decisions 529 (App.
Dec. March 26, 1985); and (12) applying agency expertise
[Iowa Administrative Act section 17A.14(5)], it is
determined that claimant has sustained a 35 percent
industrial disability to the body as a whole as the combined
and cumulative effect from both of these injuries.
The Second Injury Fund of Iowa contends that they are
not liable for benefits in this case because any industrial
disability claimant suffers is solely due to his second
injury which occurred on March 20, 1990, to his right upper
extremity. The Fund cites no legal authority for this
proposition nor can any legal authority be found for this
proposition by the deputy. On the contrary, the supreme
Page 13
court has stated that in the case of two scheduled member
injuries that the employer is only liable for the second
scheduled member injury and that the Second Injury Fund of
Iowa is liable for the remaining industrial disability.
Second Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989);
Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467, 470
(Iowa 1990).
This is also confirmed by an examination of Iowa Code
section 86.64 quoted above which states that the employer
shall be liable only for the degree of disability which
would have resulted from the latter injury if had there been
no preexisting disability. The statute then continues to
state that in addition to such compensation the employee
shall be paid out of the Second Injury Fund the remainder of
such compensation after first deducting the compensable
value of the previous lost member or organ. Iowa Code
section 85.64.
Moreover, it could be argued that if claimant sustained
zero industrial disability from the first injury and 35
percent industrial disability from the second injury, when
zero is combined with 35, "the degree of permanent
disability involved" mentioned in Iowa Code section 85.64 is
still 35 percent industrial disability.
Also there is no requirement that the first injury be
compensable. Lawyer and Higgs, Iowa Worker's Compensation
Law and Practice, (2n Ed.) Section 17-4, page 171.
Section 85.64 does not deal in percentages of permanent
disability to the scheduled members or percentages of
industrial disability. The disparity between the percentage
of scheduled member disability between the first injured
member and the second injured member is immaterial. Second
Injury Fund of Iowa v. Braden, 459 N.W.2d 467, 470 (Iowa
1990).
It is further determined that any discrepancy as to (1)
whether claimant had an arthroscopic examination of his left
knee or (2) whether he reported a work-related injury to the
Veterans Administration and (3) whether the injury occurred
on March 12, 1990 or March 20, 1990 are discrepancies in the
evidence but in the opinion of this deputy did not adversely
affect the credibility of claimant or the findings of fact
and law in this case.
It is true, and the Second Injury Fund has established,
that claimant has had a significant amount of treatment for
other problems at the Veterans Administration Hospital and
that the medical records do in fact characterize (1) that
psychological factors are effecting claimant's physical
condition, (2) that these psychological factors have their
source in family problems, (3) that claimant has been
diagnosed as a hypochondriac and (4) that claimant has been
assessed as having drug seeking behavior. However, it is
determined by this deputy that none of these factors have
significantly affected either one of claimant's scheduled
member injuries in this case. These remarks pertained to
chest pains and other ailments for which he was treated at
Page 14
the Veteran's Hospital.
An industrial disability of 35 percent amounts to 175
weeks of permanent partial disability benefits. From this
amount must be subtracted "the compensable value of the
previously lost member or organ", the left leg, which is 3
percent of 220 weeks and equals 6.6 weeks of permanent
partial disability benefits.
The liability of the Second Injury Fund must also be
reduced by the scheduled member disability attributable to
this injury of March 20, 1990, which is 10 percent of 250
weeks which is 25 weeks. Thus the liability of the Second
Injury Fund is calculated as 175 weeks reduced by a total of
31.6 weeks (6.6 weeks plus 25 weeks) and the liability of
the Second Injury Fund for this case is determined to be
143.4 weeks.
The Fund contends that they are entitled to a credit
for 27.5 weeks because claimant was paid for a 12.5 percent
permanent impairment of his left leg. This is not correct.
It is immaterial how much claimant was or was not paid for
the previous injury. The statute does not mention how much
claimant was or was not paid.
It is immaterial whether the previous loss or loss of
use to one or more of the designated scheduled members in
section 85.64 is congenital, developmental, or caused by
disease or injury Asay v. Industrial Engineering Equipment
Co., Thirty-three Biennial Report, Industrial Commissioner
224 (Appeal Decn. Dec. 1977) (District Court Appeal
Dismissed); Shank v. Mercy Hospital Medical Center, file
number 719627, Appeal Decn. filed September 27, 1991 (on
appeal).
The previous loss or loss of use must be a permanent
disability. Allen v. Second Injury Fund, State of Iowa, 34
Biennial Report, Iowa Industrial Commissioner 15 (1980);
Ross v. Service Master-Story County., Inc., 34 Biennial
Report, Iowa Industrial Commissioner 273 (1979); Ross v.
Sioux Quality Packers, Div. of Armour and Company, 34
Biennial Report, Iowa Industrial Commissioner 276 (1978);
Anderson v. Second Injury Fund of Iowa, 262 N.W.2d 789
(Iowa 1978).
There is no requirement that the first loss be
traumatic and it need not be compensable Id. Lawyer and
Higgs v. Iowa Workers' Compensation--Law and Practice, (2d
ed.) section 17-3 and section 17-4 pages 170 & 171.
However it must result in some degree of permanent
disability, usually represented by either a permanent
impairment rating or permanent restrictions, and tend to
hinder claimant's ability to earn money. Irish v. McCreary
Saw Mill, 175 N.W.2d 364 (Iowa 1970). That has been
demonstrated to be 3 percent permanent rating in this case.
Section 85.64 specifies that the "compensable value of
the previously lost member or organ" is to reduce the Second
Injury Fund's liability. In this case the compensable value
Page 15
of the first injury, irrespective of how much was or was not
paid for it was established by Dr. George when he determined
that claimant sustained a 3 percent permanent partial
physical disability of the left leg at the level of the knee
as a result of the industrial trauma of July 1985.
The Second Injury Fund provided no evidence of the fact
that claimant did in fact receive an award of 12.5 percent
of 220 weeks which resulted in a 27.5 week award for the
previous injury (Tran. p. 12). The Funds contention is
simply an allegation in prehearing briefs. There is no
other evidence to support this allegation.
The Fund also contends that their liability is to be
reduced by the settlement for a previous back injury in the
amount of 5 percent of 500 weeks, or 25 weeks of permanent
partial disability benefits. This is not correct. First,
the Fund introduced no evidence that claimant received such
a settlement. Second, Iowa Code section 85.64 makes no
provision for such a reduction in the Fund's liability.
Third, the Neelans case specifically held "The industrial
commissioner correctly ruled that the Second Injury Fund
should be responsible for the industrial disability, less
the total of the scheduled injury ...". Second Injury Fund
v. Neelans, 346 N.W.2d 355, 358 (Iowa 1989). See also
Second Injury Fund v. Braden, 459 N.W.2d 467 (Iowa 1990).
CONCLUSIONS OF LAW
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
That claimant sustained the burden of proof by
preponderance of the evidence that he sustained an injury to
his right arm on March 20, 1990, which arose out of and in
the course of his employment with employer. Iowa Code
section 85.3(1); McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Central Telephone Co., 261
Iowa 352, 154 N.W.2d 128 (1967).
That claimant sustained the burden of proof by
preponderance of the evidence that he sustained a scheduled
member injury on July 13, 1985, which caused a 3 percent
permanent impairment and disability to his left leg and also
a scheduled member injury to his right arm on March 20,
1990, which caused a 10 percent impairment and disability to
the right arm and therefore claimant has met the threshold
requirements and has proven the liability of the Second
Injury Fund of Iowa. Iowa Code section 85.64. Second
Injury Fund v. Neelans, 36 N.W.2d 355 (Iowa 1989).
That claimant has sustained the burden of proof by
preponderance of the evidence that he sustained a 35 percent
industrial disability to the body as a whole. Iowa Code
section 85.34(2)(u).
That the liability of the Second Injury Fund of Iowa is
determined as follows. From the combined and cumulative
industrial disability of 35 percent which results in 175
weeks of permanent partial disability benefits is subtracted
Page 16
6.6 weeks for 3 percent of 220 weeks for the injury to the
left leg and 25 weeks for 10 percent of 250 weeks for the
permanent impairment to the right arm and the remaining
liability of the Second Injury Fund of Iowa is 143.4 weeks.
Iowa Code section 85.64. Second Injury Fund v. Neelans, 36
N.W.2d 355 (Iowa 1989). Second Injury Fund of Iowa v.
Braden, 459 N.W.2d 467 (Iowa 1990).
ORDER
THEREFORE, IT IS ORDERED:
That defendant Second Injury Fund of Iowa pay to
claimant one hundred forty-three point four (143.4) weeks of
permanent partial disability benefits at the stipulated rate
of two hundred twenty-four and 97/100 dollars ($224.97) per
week in the total amount of thirty-two thousand two hundred
sixty and 70/100 dollars ($32,260.70) commencing on November
5, 1991, as stipulated to by the parties.
That interest will accrue from the date of this
decision Iowa Code section 85.30; Second Injury Fund of Iowa
v. Braden, 459 N.W.2d 467, 472 (Iowa 1990).
That the costs of this action, including the cost of
the attendance of the court reporter at hearing and the
transcript of hearing, are charged to defendant Second
Injury Fund of Iowa pursuant to Iowa Code sections 86.19(1)
and 86.40 and rule 343 IAC 4.33.
That both defendant-employer and defendant Second
Injury Fund of Iowa submit any claim activity reports which
may be requested by this agency pursuant to rule 343 IAC
3.1.
Signed and filed this ____ day of November, 1993.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Tom L. Drew
Attorney at Law
P.O. Box 8476
3209 Ingersoll Ave., Ste. 105
Des Moines, IA 50312
Mr. Brian Scieszinski
Mr. Cecil L. Goettsch
Attorneys at Law
801 Grand Ave.
Suite 3700
Des Moines, IA 50309
Page 17
Mr. James F. Christenson
Attorney at Law
Tort Claims Division
Hoover State Office Building
Des Moines, IA 50319
5-1108, 5-1401, 5-1402.20,
5-1402.30, 5-1402.40, 5-3202,
5-3203
Filed November 15, 1993
Walter R. McManus, Jr.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RALPH SNYDER,
Claimant,
vs.
File No. 944044
MERCURY TOOL & ENGINEERING,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
and
SECOND INJURY FUND OF IOWA
Defendants.
___________________________________________________________
5-1108, 511401, 5-1402.20, 5-1402.30, 5-1402.40, 5-3202,
5-3202
Claimant was awarded 143.4 weeks of benefits from the
Second Injury Fund of Iowa.
The first injury to the left knee caused a 3 percent
permanent impairment and had a scheduled value of 6.6 weeks.
The second injury to the arm caused a 10 percent permanent
impairment and had a scheduled value of 25 weeks. Claimant
was determined to have a 35 percent industrial disability
with a value of 175 weeks. The net amount owed by the
Second Injury Fund was 143.4 weeks (175 weeks minus 6.6
weeks and 25 weeks equals 143.4 weeks).
Discrepancies of (1) whether the injury date was March
20, 1990 or March 12, 1990, (2) why the VA records did not
record a work injury, (3) whether claimant did or did not
have an arthroscopic examination for the knee at the time of
the first injury and (4) whether claimant began full-time
employment again in July 1992 or July 1993, were outweighed
by (1) the fact that claimant reported an injury to employer
when it occurred, (2) employer completed a first report of
injury, (2) employer and insurance carrier determined that
claimant was credible enough to justify making full payment
on this injury claim, (3) four doctors, Dr. Smith, Dr.
Page 2
Wirtz, Dr. Kirkland and Dr. Rosenfeld determined that
claimant was credible and treated him based on the same
history of this injury that claimant supplied to them and
(4) that the deputy found that claimant was credible and
truthful even though he may have been a poor historian.
Likewise, claimant had a number of health and family
problems that may have affected his recollection over the
three and one-half years after the time of the injury and
before this hearing.
The chief elements in determining industrial disability
were (1) claimant's age, 45 at the time of injury, (2) 10th
grade education with a GED from Iowa Vocational
Rehabilitation, (3) foreclosed from very heavy, heavy and
medium work for 20 years from the time of the injury at age
45 until what is frequently considered as normal retirement
age of 65 which restricts his employability and
concomitantly his earnings capacity, (4) a second injury
that was a traumatic injury which required three surgeries,
(5) a permanent restriction of not to lift more than 15
pounds for the rest of his working life, (6) inability to
find work with his restriction, (7) motivation to find
employment by pursuing Iowa vocational rehabilitation for
approximately one year, (8) a 20 percent actual loss of
earnings at the time of hearing, preceded by a lengthy
period of unemployment and part-time employment, (9) a three
percent permanent impairment to his left knee and (10) a 10
percent permanent impairment to his right arm.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JACK BOLEY, :
:
Claimant, :
:
vs. :
: File No. 944063
JACK B. KELLEY, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LEGION INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Jack
Boley against Jack B. Kelley, Inc., and its insurance
carrier, Legion Insurance Company, based upon an alleged
injury of April 2, 1990. Claimant seeks compensation for
healing period, permanent partial disability and payment of
medical expenses. The primary issue in the case deals with
liability. There is a dispute in regard to whether or not
the claimant's injury arose out of and in the course of his
employment. There is further dispute regarding the
employer/employee relationship between claimant and Jack B.
Kelley, Inc., and the liability of Legion Insurance Company
for this claim.
The case was heard at Davenport on March 25, 1992. The
evidence consists of testimony from Michael Lahr, Michael
Volz and Jack Boley. The record also contains joint
exhibits 1 through 13. Deposition exhibits 3 and 4 which
are part of exhibit 13 were considered for purposes of
expressing opinions in exhibit 13 but are not in the record
of the case as direct evidence.
FINDINGS OF FACT
Jack Boley is a 60 year old married man who dropped out
of school during the tenth grade. He has worked as a truck
driver since 1972. He had worked as a warehouse foreman
from 1949 until 1972.
In January of 1988, Boley began working for Michael
Volz driving a truck owned by Volz. Volz described his
operation as one in which he gives people the opportunity to
earn money by driving his trucks with Volz performing the
paperwork. Volz stated that he simply wanted a return on
his investment in the trucks. As part of the arrangement,
Volz paid wages to the people driving the trucks. Volz was
Page 2
paid for the loads carried by the trucks and in turn paid
the drivers. Volz had essentially nothing to do with
directing the work of the drivers, however, as their work
activities were typically directed by whomever the truck has
been leased to. Volz stated that he owns trucks and leases
out the equipment. He, himself, drives occasionally.
Prior to April 2, 1990, Volz, acting through Boley, to
whom he had given a power of attorney, entered into a lease
arrangement with Jack B. Kelley, Inc. As established by
testimony from Volz, Boley and Lahr, part of the agreement
was that Jack B. Kelley, Inc., would provide workers'
compensation insurance for the driver of the truck, even
though Volz was to remain responsible for payment of wages
to the driver and to otherwise stand in the status of
employer of the driver (Ex. 12). It is found that the term
of the agreement wherein Jack B. Kelley, Inc., would provide
the workers' compensation insurance was one of the essential
factors relied upon by Volz and Boley when deciding to enter
into the agreement which is in the record as exhibit 12.
It is further found that the actual day-to-day
operation was essentially consistent with the written
agreement. Jack B. Kelley, Inc., told Boley what to do and
when to do it and the only role played by Volz was in
matters concerned with paying Boley and maintenance of the
truck. It is noted that Volz provided the tractor while
Jack B. Kelley, Inc., provided the trailer. In order for
this arrangement to be created and to continue to exist it
is noted that both Volz and Kelley had the right to select
the driver. Volz could not force Jack B. Kelley, Inc., to
have a driver in the truck which was unacceptable to them
nor could Jack B. Kelley, Inc., place a driver into the
truck without the consent of Volz. Volz was responsible for
paying wages to Boley. Either Boley or Volz or Jack B.
Kelley, Inc., could terminate the relationship at any time.
Jack B. Kelley, Inc., was clearly in control of the work.
Jack B. Kelley, Inc., would be the party sought to be held
responsible for and in charge of the work which Boley
performed since Jack B. Kelley, Inc., had contracted to
perform trucking services with the parties who had products
to be transported.
It is further found that in entering into the
agreement, exhibit 12, Jack B. Kelley, Inc., acting through
its authorized representatives, represented that it would
provide workers' compensation insurance for Boley, or anyone
else who operated the truck owned by Volz. Neither Boley
nor Volz knew that Jack B. Kelley, Inc., would not purchase
such insurance. Since the representation as to providing
workers' compensation insurance was part of the package
offered by Jack B. Kelley, Inc., it can only be found that
Jack B. Kelley, Inc., intended that the truck owners and
drivers who contracted with them would rely upon Jack B.
Kelley, Inc., to provide workers' compensation insurance.
Volz and Boley relied upon the promise of Jack B. Kelley,
Inc., to provide workers' compensation insurance for Boley
Page 3
and did not purchase or acquire other insurance. Since the
claim has been denied, in part on grounds that there is no
coverage for Boley, their reliance has been prejudicial to
them. A strange part about this case is that it appears as
though Jack B. Kelley, Inc., did, in fact, purchase
insurance to cover Boley but that the insurance carrier has,
nevertheless, declined to pay the claim. It is found that
Michael Volz and Jack Boley were intended to benefit from
the purchase of workers' compensation insurance by Jack B.
Kelley, Inc.
Having observed the appearance and demeanor of the
witnesses who testified at the hearing of this case and
having considered their testimony in light of the other
evidence in the record, all three are found to be credible
witnesses. It is found that Jack Boley did in some manner
strained or injured his back on April 2, 1990, while
performing services under the direction of Jack B. Kelley,
Inc. It is clear from the record of this case that Boley
had preexisting problems with his back but that he had been
able to function without any substantial impairment or
disability prior to April 2, 1990. On April 2, 1990, he
suddenly became disabled by his back. Prior to that date,
his back problems had not prevented him from working. He
had several episodes of back pain but they resolved with
rest or chiropractic treatment. It is found to be probable
that claimant did rupture a disc in his back on April 2,
1990, as evidenced by the onset of severe, disabling pain
(Ex. 7, p. 1; Ex. 13, pp. 23-24). It is further found that
Boley injured his back while unloading on April 2, 1990, in
the manner described by Lahr and Boley at hearing. That
testimony is corroborated by a report from Ron Buracker,
D.C., whom claimant consulted on April 2, 1990. This
finding is made with the knowledge that claimant had seen
Dr. Buracker a few days earlier with radiating low back pain
of much less severity. It is made recognizing that claimant
did not give a detailed description of what had happened
when he was initially treated by Dr. Rovine. It appears as
though no one having actual first hand knowledge of the
facts disputes that Boley was injured. It appears as though
the denial of the claim resulted in part from a lack of
reporting by Lahr, the manager for Jack B. Kelley who was
responsible for reporting the injury to the insurance
carrier.
The relationship between Volz and Jack B. Kelley, Inc.,
could in some manner be termed a partnership in which Volz
provided a truck and driver while Jack B. Kelley, Inc.,
lined up work for the truck. The revenues from the work
were divided between Jack B. Kelley, Inc., and Volz in the
manner provided by exhibit 12. Volz could also be termed a
labor broker who provided employees to Jack B. Kelley, Inc.,
to perform its work. He also leased equipment to Jack B.
Kelley, Inc. The relationship between Volz, Boley and Jack
B. Kelley, Inc., was one in which Volz was the de jure
employer of Boley who paid Boley and in essence directed
Page 4
him to do whatever Jack B. Kelley, Inc., told him to do. On
the other hand, Jack B. Kelley, Inc., was the de facto
employer of Boley who gave Boley his day-to-day directions
concerning the work that was to be performed. It is
therefore found that both Michael Volz and Jack B. Kelley,
Inc., were the employers of Jack Boley on April 2, 1990,
when Boley injured his back.
The parties stipulated to the extent of Boley's healing
period entitlement. That stipulation is amply supported by
the evidence in the record and is adopted as being correct.
Boley has returned to the same type of work without any
reduction in earnings. He appears capable of performing the
work without any substantial limitation as a result of the
injury. There is, however, always uncertainty with regard
to the future. Boley has little in the way of definite
activity restrictions and few physical complaints. He is an
older worker and would likely have difficulty finding
suitable employment should his current employment situation
end. There is nothing in the record, however, to indicate
that Boley's current employment status is in any way in
jeopardy. There is likewise nothing in the record which
insures that Volz, a relatively small operator, will
continue to employ Boley indefinitely into the future. As
with many things, the only thing that is certain is that
there is a degree of uncertainty. It is therefore found
that Jack Boley has experienced a 10 percent reduction in
his earning capacity as a result of the April 2, 1990
injury.
CONCLUSIONS OF LAW
Generally, an employee of an independent contractor is
not an employee of the general contractor. For an owner-
operator to be meet the statutory definition of an
independent contractor, it is necessary that Iowa Code
section 85.61(3)(c) be complied with.
The law regarding employer/employee relationship is
well settled. Nelson v. Cities Service Oil Company, 146
N.W.2d 261, 265 (Iowa 1966). Of the five criteria, the
first and third were held equally by Volz and Jack B.
Kelley, Inc. The second points to Volz. The fourth and
fifth point to Jack B. Kelley, Inc. When considering those
criteria, the evidence more strongly points to Jack B.
Kelley, Inc., as being the employer of Jack Boley than it
does to Mich further noted that the arrangement between Jack B.
Kelley, Inc., and Volz which existed in this case is fully
in conformance with the version of Iowa Code section
85.61(3)(c) which was in effect at the time of this injury.
Iowa Code section 85.61 was amended in 1986, in part, to
avoid situations where there was an absence of coverage or
duplication of coverage and in part to statutorily authorize
the motor carrier to purchase insurance and, if it chose to
do so, to charge the cost of the insurance to the owner of
the vehicle. In the Matter of the Interpretation of Senate
File 2104, Declaratory Ruling (August 21, 1986). The 1986
amendment was intended to remedy the situation where neither
the owner-operator nor the motor carrier provided insurance
and numerous injured employee drivers were left to seek
compensation from an insolvent uninsured employer who had
neglected to purchase insurance or from a motor carrier who
had not paid a premium to cover the employee of the owner-
operator. Having been directly involved in the drafting of
the 1986 amendment, the undersigned is fully aware that the
intent was that all employee drivers be covered by workers'
compensation insurance and that the motor carrier, who
receives the payment for the work the driver actually
performs, be held responsible for seeing to it that
insurance was in force either through purchasing the
insurance itself or through requiring the owner of the truck
driven by the employee driver to provide a certificate
showing insurance to be in effect. If the motor carrier
defaulted in its obligation to be certain that insurance was
in effect then the motor carrier was liable as an employer
since it did not completely meet the statutorily created
definition which would qualify the owner-operator as an
independent contractor. Motor carriers, such as Jack B.
Kelley, Inc., are generally more financially sound and more
stable than owner-operators. In view of such, they are more
likely to comply with a legal requirement for purchasing
workers' compensation insurance. Since they receive payment
for hauling the loads which are hauled and then make
distribution to the owner-operator, the motor carrier is in
a better position to purchase workers' compensation
Page 6
insurance for all drivers than would be the owner-operator.
The chaos which existed before the 1986 amendment was such
that responsible owner-operators often provided duplicate
insurance coverage while irresponsible ones provided none.
Motor carriers were at a loss to know whether or not to
purchase insurance. The 1986 amendment was intended to
provide certainty, stability and predictability with regard
to the purchase of insurance. It further promoted the well
recognized public policy of providing workers' compensation
benefits to all who can be brought within its coverage. It
was intended to promote compliance with the law which
requires employers to purchase insurance. A 1991 amendment
to the statute, as found in section 87.1 of the current
code, thwarted what was intended by the 1986 amendment.
Motor carriers are now authorized to purchase insurance for
owner-operators, but apparently not for the employees of
owner-operators and motor carriers are no longer responsible
for requiring owner-operators to provide workers'
compensation insurance for the employees of the owner-
operators. The current version is not controlling in this
case, however.
It is therefore concluded that Jack B. Kelley, Inc., is
an employer of Jack Boley for purposes of workers'
compensation coverage and it is responsible, jointly and
severally with Michael Volz, for paying benefits for Boley's
injury which arose out of and in the course of his
employment on April 2, 1990. Under any analysis of the
facts in this case, whether the traditional rules of
employer/employee relationship are applied, whether the
doctrine of estoppel is applied or whether section
85.61(3)(c) of the 1989 Code of Iowa is applied, the result
is the same. Jack B. Kelley, Inc., is liable. In view of
its contractual obligation to pay as a result of coverage
for Boley having been purchased, Legion Insurance Company is
liable to pay benefits in this case, regardless of whether
the employer is Jack B. Kelley, Inc., Michael Volz or both.
Boley was clearly an intended beneficiary of that workers'
compensation insurance policy contract. Under the
circumstance of this case, Jack B. Kelley, Inc., purchased
insurance as the agent for Michael Volz. The obligation of
the insurance carrier to pay is the same as though Volz had
personally written the check. The fact that the insurance
carrier may have chosen to issue the policy only in the name
of Jack B. Kelley, Inc., is not controlling. This agency
has full jurisdiction to determine the binding force of
insurance policies. Travelers Insurance Company v. Sneddon,
249 Iowa 393, 86 N.W.2d 870 (1957). If it is necessary to
reform the insurance policy contract to expressly show
Michael Volz as the insured employer and Jack Boley as an
insured employee, then it is concluded that such is hereby
accomplished as Volz and Boley were clearly intended
beneficiaries and persons intended to be covered by the
contract.
The claimant has the burden of proving by a
Page 7
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
A personal injury contemplated by the workers'
compensation law m253 Iowa 369, 112 N.W.2d 299 (1961).
Dr. Rovine is equivocal about causation. A report from
Franciscan Regional Hospital, however, makes a finding of
causation with regard to the injury (Ex. 10). The fact that
claimant's severe symptoms came on rapidly while he was at
Page 8
work is strong evidence that the condition is work related.
The fact that the claimant has been found to be extremely
credible further supports the determination that his injury
arose out of and in the course of his employment.
Industrial disability or loss of earning capacity is a
concept that is quite similar to impairment of earning
capacity, an element of damage in a tort case. Impairment
of physical capacity creates an inference of lessened
earning capacity. The basic element to be determined,
however, is the reduction in value of the general earning
capacity of the person, rather than the loss of wages or
earnings in a specific occupation. Post-injury earnings
create a presumption of earning capacity. The earnings are
not synonymous with earning capacity and the presumption may
be rebutted by evidence showing the earnings to be an
unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531
(Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa
1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973);
Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516
(Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County,
Thirty-fourth Biennial Report of the Industrial Commissioner
218 (1979); 2 Larson Workmen's Compensation Law, sections
57.21 and 57.31.
Boley underwent disc excision surgery (Ex. 8). He has
approximately a 10 percent functional impairment. His
restrictions are in the range of 50 pounds. There is no
showing in the record that this impairs his ability to be
employed as a truck driver doing the type of driving he has
performed for the last several years. He has been found to
have a 10 percent loss of earning capacity. This is
equivalent to a 10 percent permanent partial disability
which under the provisions of Iowa Code section 85.34(2)(u)
entitles him to receive 50 weeks of permanent partial
disability compensation.
It should be noted that the rate which is established
by stipulation in the prehearing report is not found in the
benefit booklet. The closest correct rate, and the one
which would be applicable if claimant were married, entitled
to two exemptions and had earnings of $500 per week, all as
stipulated in the prehearing report, is $309.26 per week.
That correct rate will be used in this decision.
The medical expenses claimant seeks to recover are
found in exhibit 11. They are as follows: St. Luke's
Hospital, pages 1-9 in the amount of $7,698.75 (the charges
on page 10 appear to be the same as those on page 6); Mercy
Hospital Emergency Room (page 11) in the amount of $207.00;
Mercy Hospital Emergency Room physicians (page 12) in the
amount of $88.00; Bettendorf Medical Center (page 13) in the
amount of $31.00; Ron Buracker, D.C. (page 14) in the amount
of $15.00; Orthopaedic Surgery Associates (page 15) in the
amount of $217.50; The Neurology Group, P.C. (page 16) in
the amount of $3,155.00. The total computes to $11,412.25.
Since the only issue shown in the prehearing report was
liability and liability has been determined in the favor of
Page 9
the claimant, defendants are responsible for payment of all
the foregoing medical expenses. This decision does not make
any ruling or determination with regard to the rights of
subrogation which may be held by any insurance company or
with regard to whether or not defendants are entitled to
credit for the amounts paid by any other insurance carrier.
The Pro Tanto rule applies in workers' compensation
proceedings as the same was described in Glidden v. German,
360 N.W.2d 716 (Iowa 1984). In view of such, claimant would
not be entitled to any additional recovery if he were to
make a claim against Michael Volz.
ORDER
IT IS THEREFORE ORDERED that Jack B. Kelley, Inc., and
Legion Insurance Company pay Jack Boley twenty-nine point
one four three (29.143) weeks of compensation for healing
period at the rate of three hundred nine and 26/100 dollars
($309.26) per week payable commencing April 2, 1990.
IT IS FURTHER ORDERED that defendants Jack B. Kelley,
Inc., and Legion Insurance Company pay Jack Boley fifty (50)
weeks of compensation for permanent partial disability at
the rate of three hundred nine and 26/100 ($309.26) per week
payable commencing October 23, 1990.
IT IS FURTHER ORDERED that the entire amount awarded
herein is past due and owing and shall be paid to claimant
forthwith in a lump sum together with interest pursuant to
Iowa Code section 85.30 computed from the day each payment
came due as ordered herein until the date of actual payment.
IT IS FURTHER ORDERED that defendants Jack B. Kelley,
Inc., and Legion Insurance Company pay the following medical
expenses as shown in exhibit 11:
St. Luke's Hospital $ 7,698.75
Mercy Hospital Emergency Room 207.00
Mercy Hospital Emergency Room Physicians 88.00
Bettendorf Medical Center 31.00
Ron Buracker, D.C. 15.00
Orthopaedic Surgery Associates 217.50
The Neurology Group, P.C. 3,155.00
Total $11,412.25
IT IS FURTHER ORDERED that the costs of this action are
assessed against defendants pursuant to rule 343 IAC 4.33.
IT IS FURTHER ORDERED that defendants file claim
activity reports as requested by this agency pursuant to
rule 343 IAC 3.1.
Page 10
Signed and filed this ____ day of September, 1992.
________________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr James M Hood
Attorney at Law
302 Union Arcade Bldg
Davenport IA 52801
Mr Stephen W Spencer
Attorney at Law
218 6th Ave Ste 300
P O Box 9130
Des Moines IA 50306
1301; 1402.10; 2102
Filed September 24, 1992
Michael T. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JACK BOLEY, :
:
Claimant, :
:
vs. :
: File No. 944063
JACK B. KELLEY, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LEGION INSURANCE , :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1301; 1402.10; 2102
Claimant was the employee of the owner of a truck who then
leased the truck to the motor carrier/defendant. Part of
the lease agreement provided that the motor carrier would
provide workers' compensation insurance. It purchased
coverage for the claimant but when claim was made the
insurance carrier denied the claim asserting that the
claimant was not the employee of the motor carrier. It was
held as follows:
1. Claimant was shown to be an employee under traditional
precedents.
2. Motor carrier, who agreed to purchase insurance and the
insurance carrier with whom it did purchase insurance were
estopped from denying coverage.
3. The claimant and the owner of the truck were determined
to be intended third party beneficiaries of the insurance
policy contract.
4. The claimant was a joint employee of both the truck
owner and the motor carrier/defendant.
5. The insurance policy contract in question was reformed
to show the truck owner as an insured employer and the
claimant as an insured employee.
5-1000; 5-2909
Filed May 25, 1993
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
EDWARD WILKINS, :
: File No. 944100
Claimant, :
:
vs. : MEMORANDOM OF
:
UNIVERSAL RUNDLE CORPORATION, : DECISION ON
:
Employer, : EXPEDITED CONTESTED
:
and : PROCEEDINGS
:
NATIONAL UNION FIRE :
INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1000; 5-2909
Found claimant shall pay his former attorney $100 in full
settlement of attorney fees.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DESIREE SIEFKAS, :
:
Claimant, :
:
vs. :
: File No. 944404
FURNAS ELECTRIC COMPANY, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INSURANCE, :
:
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.
ISSUE
Those portions of the proposed agency decision
pertaining to issues not raised on appeal are adopted as a
part of this appeal decision. The issue raised on appeal
is: "whether the deputy erred in concluding Desiree failed
to prove she suffers from an occupational disease."
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed November 12, 1991 are adopted as final agency
action.
CONCLUSIONS OF LAW
The sole issue on appeal is whether claimant's cubital
tunnel syndrome constitutes an occupational disease under
Iowa Code chapter 85A, or an injury under chapter 85.
Claimant concedes in her reply brief that her cubital
tunnel syndrome is a repetitive trauma syndrome:
Thus, it really does not matter whether the
individual has tendinitis, carpal, ulnar or
cubital tunnel syndrome, lateral epicondylitis,
thoracic outlet syndrome, bursitis, tenosynovitis
or any of the various other disorders that are
commonly associated with RMD (repetitive motion
disorder)....[T]hese disorders fall within the
class of conditions which are now commonly
referred to as repetitive trauma or overuse
syndromes....
Page 2
The issue of whether carpal tunnel syndrome caused by
repetitive motion constitutes an occupational disease or a
traumatic injury was addressed in Noble v. Lamoni Products,
Appeal Decision, May 7, 1992. That case discussed the
differences between an occupational disease under chapter
85A and an injury under chapter 85. Noble dealt with carpal
tunnel syndrome, a repetitive motion disorder; claimant in
the case sub judice concedes that her cubital tunnel
syndrome is also a repetitive motion disorder.
The record shows that claimant's physicians related her
arm condition to repetitive trauma. Dr. Fotiabus attributed
the condition to "overuse," and Dr. Grundberg stated that
claimant's cubital tunnel condition was caused by
"repetitive work."
The reasoning and analysis stated in Noble is
incorporated herein. Claimant's cubital tunnel syndrome is
an overuse syndrome and constitutes an injury under Iowa
Code chapter 85 and not an occupational disease under Iowa
Code chapter 85A.
WHEREFORE, the decision of the deputy is affirmed.
ORDER
THEREFORE, it is ordered:
That claimant takes nothing from this proceeding.
That claimant shall pay the costs of the appeal
including the transcription of the hearing.
Signed and filed this ____ day of March, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Steven C. Jayne
Attorney at Law
5835 Grand Avenue STE 201
Des Moines, Iowa 50312
Mr. Joseph S. Cortese, II
Attorney at Law
500 Liberty Building
Des Moines, Iowa 50309
Page 3
Mr. Helmut A. Mueller
Attorney at Law
RR 5
Osceola, Iowa 50213
2203
Filed March 29, 1993
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DESIREE SIEFKAS, :
:
Claimant, :
:
vs. :
: File No. 944404
FURNAS ELECTRIC COMPANY, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
2203
Claimant's cubital tunnel syndrome, a repetitive motion
disorder, held to constitute an injury and not an
occupational disease pursuant to Noble v. Lamoni Products.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
DESIREE SIEFKAS, :
:
Claimant, :
:
vs. :
: File No. 944404
FURNAS ELECTRIC COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Desiree
Siefkas, claimant, against Furnas Electric Company,
employer, and Liberty Mutual Insurance Company, insurance
carrier, to recover benefits under the Iowa Workers'
Compensation Act as a result of an injury sustained on
January 8, 1990. This matter came on for hearing before the
undersigned deputy industrial commissioner on October 24,
1991, in Des Moines, Iowa. The record was considered fully
submitted at the close of the hearing. The parties were
given the option of filing legal briefs. The record in this
case consists of testimony from claimant, Melvin Bobo and
Sally Riekena and joint exhibits 1-2, claimant's exhibits
3-8 and defendants' exhibit A.
issue
The only issue to be determined in this case is whether
claimant sustained an occupational disease under Chapter 85A
rather than an injury under Chapter 85 of the Code of Iowa
and, if so, the extent of entitlement to weekly compensation
for permanent disability and the type of permanent
disability.
findings of fact
The undersigned has carefully considered all the
testimony given at the hearing, the arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Claimant was born on November 25, 1959 and graduated
from high school in 1978. She attended the Iowa School of
Beauty earning a certification as Cosmetologist in May 1979.
She attended Southwest Community College from September
through December 1990. She enrolled there as a full time
Page 2
student from January through May, 1991. She moved to the
State of Missouri in June 1991, and in August enrolled at
East Central College in an Associate of Arts degree program
in greenhouse/nursery management.
Claimant worked at various times as a small products
assembler, inspection assistant, assistant librarian,
waitress, hostess and hair stylist. She commenced work with
employer in August 1987. She worked at various times as a
coil solderer and pressure switch builder. She last worked
for employer on September 14, 1990 and was earning $6.29 per
hour.
The pertinent medical evidence of record reveals that
claimant was seen at Clarke Medical Clinic by George
Fotiadis, M.D., company physician, on January 8, 1990, with
complaints of left arm pain. She related no specific injury
but noted that her pain pattern started on the first of the
year. Dr. Fotiadis indicated that her pain was of a
muscular origin and he prescribed Ibuprofen, four times
daily, to relieve inflammation. On January 15, 1990,
claimant presented to the clinic with persistent elbow pain.
A physical therapy evaluation was prescribed. On February
2, 1990, she was found to have a normal range of motion at
the shoulders and elbows and a negative neurological
examination. She returned to part-time and then full time
work activity. On February 15, 1990, she again presented to
Dr. Fotiadis with complaints of shoulder and elbow pain.
Her complaints persisted and she was referred to Arnis B.
Grundberg, M.D., an orthopedic surgeon, for further
evaluation (Exhibit 1a).
Dr. Grundberg saw claimant on March 16, 1990. He
stated that "[s]he points to the cubital tunnel as the area
where most of her pain is and it radiates from there to the
wrist. Intermittently, it also radiates into the ring and
little finger and then there is numbness and tingling in
these digits." (Ex. 2a) Based on the results of a physical
examination, Dr. Grundberg concluded that claimant suffered
from (1) compression, ulnar nerve, left elbow and, (2) mild
median epicondylitis, left elbow. He referred her for an
EMG evaluation (Ex. 2a, page 1).
Although the results of an EMG were normal,
nevertheless, Dr. Grundberg diagnosed mild left cubital
tunnel syndrome. He opined that her problem would best be
handled by work modifications and analgesics (Ex. 2, p. 2).
Claimant subsequently returned to Dr. Fotiadis with arm
and shoulder symptoms. On May 29, 1990, Dr. Fotiadis
returned claimant to Dr. Grundberg for further evaluation.
She was referred for a repeat EMG evaluation. On June 5,
1990, Dr. Grundberg reported that test results were
suggestive of a left cubital tunnel syndrome. He
recommended either doing something easy at work or surgical
therapy with a 95 percent chance of relieving her problem
(Ex. 2, p. 3).
On June 27, 1990, claimant reported to Dr. Grundberg
that she had developed symptoms in her right arm similar to
Page 3
those in her left. An examination on June 29, 1990,
revealed mild right cubital tunnel syndrome in addition to
severe left cubital tunnel syndrome. Dr. Grundberg
recommended that she quit her job at Furnas and perform
easier type work (Ex. 2, p. 3).
On July 2, 1990, claimant underwent decompression of
the left cubital tunnel. On July 31, 1990, he reported
"[t]he numbness and tingling is mostly gone. The deep pain
on the left side is gone. Grip right is 40, left 20; Pinch
right 4, left 3.5. The patient plans on quitting her
employment at Furnas Electric and she will work with a
Rehabilitation Service to be re-trained for a different
job." (Ex. 2a, p. 4).
On August 14, 1990, Dr. Grundberg gave claimant a note
indicating that her healing period will end on September 14,
1990, and recommended that she not return to her former job
nor perform repetitive work activity. On August 17, 1990,
Dr. Grundberg clarified that she should do no assembly line
work (Ex. 2, p. 4).
On November 19, 1990, claimant underwent decompression
of the right cubital tunnel. On January 8, 1991, she was
told that the healing period for her right arm will end on
February 5, 1991. An examination on April 9, 1991, revealed
an absence of numbness or tingling on the right but pain on
the medial aspect of the elbow. Tenderness just distal to
the lateral epicondyle of the right elbow was evident. A
follow-up examination on July 2, 1991, showed numbness in
the right little finger but overall her right hand and elbow
were doing well (Ex. 2, pp. 5-6).
Dr. Grundberg gave claimant a five percent permanent
impairment rating in her right and left arm due to cubital
tunnel syndrome (Ex. 2c, p. 1 and Ex. 2d, p. l).
Claimant hired Melvin Bobo, a vocational rehabilitation
counselor, to perform a vocational assessment. Mr. Bobo
testified at the hearing and stated that in making such an
assessment, he takes into consideration claimant's
education, work history, medical limitations and labor
market factors. He testified that he interviewed claimant
on one occasion and obtained from her general information
regarding her background. Using statistics from the Iowa
Department of Employment Services, Mr. Bobo testified that
he made a job search in the seven county area around
Osceola, Iowa where claimant was living at the time of her
injury. He identified two positions prevalent in that area
which he felt that claimant would be able to perform with
some accommodations. These included sales clerk and
receptionist. He testified that a sales clerk position in
that service delivery area typically pays $3.86 per hour
while a receptionist position pays $4.90 per hour.
Defendants presented a vocational assessment through a
report made by Jeff L. Johnson, a vocational consultant, on
October 23, 1991. Mr. Johnson indicated that he reviewed
claimant's medical, vocational and educational history and
concluded that without re-training efforts, she would be
Page 4
able to perform unskilled and semi-skilled jobs such as
general clerk, cashier, sales clerk, receptionist and
telephone solicitor. The medium salary for these jobs in
the State of Iowa pay less than $6.82 per hour. In
addition, he contacted the Des Moines Area Community College
to determine the employability and salary levels associated
with jobs in the horticulture field for graduates with
degrees in that area. He reported that the average entry
level salary is $15,000 per year (Ex. A).
Sally Riekena, employer's personnel manager and safety
coordinator for the past 15 years, also testified at the
hearing. She testified that one of her duties involves
preparing OSHA reports for the U.S. Department of Labor.
The record in this case contains OSHA logs for the calendar
years 1988, 1989 and 1990. The logs show the total number
of reportable injuries at Furnas which resulted in employee
lost work days. Under the category entitled "Disorders
Associated With Repeated Trauma" 26 cases were reported in
1988 (Ex. 5a); 41 cases reported in 1989 (Ex. 5b); and, 54
cases in 1990 (Ex. 5c).
When questioned as to why claimant was terminated on
September 14, 1990, Ms. Riekena testified that claimant felt
there was no work at the plant she could perform in view of
her restrictions.
conclusions of law
Claimant contends she sustained an occupational disease
as a result of her employment with employer and is entitled
to industrial disability benefits under Iowa Code Chapter
85A and case law. Claimant concedes that the Iowa Supreme
Court has not addressed the issue of whether cubital tunnel
syndrome and other disorders generally classified as
repetitive motion disorders are occupational diseases.
Defendants argue that claimant sustained a work-related
injury rather than an occupational disease on January 8,
1990, which caused temporary and permanent disability.
Defendants have paid claimant temporary total disability
benefits, temporary partial disability benefits and
permanent partial disability benefits for bilateral cubital
tunnel syndrome based on Dr. Grundberg's impairment ratings.
Claimant admits that her injury does not extend into the
body as a whole and if it is found that she sustained an
injury rather than occupational disease, she has been fully
compensated by defendants.
Section 85A.8 defines occupational diseases as follows:
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
Page 5
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.
To prove the causation element described in section
85A.8, claimant must show by a preponderance of the evidence
(1) the disease is causally related to the exposure to the
harmful conditions of the field of employment, and (2) the
harmful conditions must be more prevalent in the employment
concerned than in everyday life or in other occupations.
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980);
and Frit Industries v. Langenwalter, 443 N.W.2d 88, 90 (Iowa
App. 1989).
Although McSpadden might be read as eliminating the
arising out of and in the course of requirements, the
statute clearly retains those elements. Perhaps the intent
of the opinion in McSpadden is to emphasize the peculiar
aspects of occupational disease. Lawyer & Higgs, Iowa
Workers' Compensation -- Law and Practice, Chapter 18,
sections 1-3.
It is conceivable that repetitive motion disorders may
constitute either an injury or an occupational disease
depending upon the particular facts in the case.
Accordingly, determinations as to what constitutes an
occupational disease must be made on a case-by-case basis.
In this case, the record clearly indicates that
claimant has been diagnosed with bilateral cubital tunnel
syndrome.(1) Claimant testified that she had no problem using
her upper extremities prior to August 1987 when she started
employment at Furnas Electric. She alleged no specific
trauma or injury but thought that her problems arose as a
result of her work history with employer. She stated that
her job as an assembler on the production line required
repetitive and extensive use of her upper extremities. She
testified that she began experiencing symptoms of pain and
numbness in December 1989 and sought medical treatment in
January 1990. After decompression surgery in July 1990, her
left arm symptoms improved. She stated that her right arm
surgery has not produced similar successful results. She
testified to a limited residual functional capacity
including a minimal ability to use her right arm and hand
for fine and gross manipulations due to pain, numbness and
weak grip strength. She testified that she last saw Dr.
Grundberg in July 1991, and is not under the continuing care
(1). Cubital tunnel syndrome is defined as a complex of symp
toms resulting from injury or compression of the ulnar nerve
at the elbow, with pain and numbness along the ulnar aspect
of the hand and forearm, and weakness of the hand.
Dorland's Illustrated Medical Dictionary 26th Edition
Copyright 1981.
Page 6
of any other physician. She takes over-the-counter
Ibuprofen for pain. While receiving unemployment
compensation benefits she made a superficial job search in
the Osceola area. She has not looked for work since
February 1991, however she participates in a work-study
program at East Central College and works 10 hours a week as
an assistant librarian.
Claimant has the burden of proof. She must show that
her bilateral cubital tunnel syndrome arose out of and in
the course of employment with employer. There must be a
direct causal connection with the employment following as a
natural incident from an injurious exposure occasioned by
the nature of the work. Such condition must be incidental
to the character of the business, occupation or process in
which claimant was employed and not independent of the
employment. It need not have been foreseen or expected but
after its contraction it must appear to have its origin in a
risk connected with the employment and to have resulted from
that source was an incident and rationale consequence. Iowa
Code section 85A.8.
Claimant's unrefuted testimony that she was
asymptomatic prior to working for employer establishes that
her condition arose out of and in the course of employment
with employer. In fact, defendants do not dispute this.
To satisfy these requirements, the Iowa Supreme Court
in McSpadden, stated that claimant must meet two basic
requirements. First, she must show that the disease is
causally related to the exposure to harmful conditions in
the field of employment in which she was engaged and,
secondly, that those harmful conditions are more prevalent
in the employment concerned than in everyday life or in
other occupations.
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
v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73
N.W.2d 732 (1955). 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 v. Fischer, Inc., 257
Iowa 516, 133 N.W.2d 867 (1965). See also Musselman v.
Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
On January 15, 1990, claimant saw Dr. Fotiabis with com
plaints of elbow pain. His notes state "[e]lbow pain,
consider a golfer's elbow type injury, probably from chronic
overuse such as her work activity." (Ex. 1a, p. 1) In view
of her persistent symptomatology, Dr. Fotiabis referred
Page 7
claimant to Dr. Grundberg, a specialist in the arm and upper
extremities. Dr. Grundberg reported on March 16, 1990, that
"[h]er particular problem started at work and therefore I
think it is worke [sic] related. The kind of repetitive
work that she does has been recognized as causing the
problems described above." (Ex. 2a, p. 1). In a notation
by Dr. Fotiadis dated May 1, 1990, he stated that "[t]he
orthopedist and I would agree that the nature of the
patient's job with it's [sic] specific arm motion and
activity are aggravating factors. In addition, this current
job is likely to continue to aggravate her sympts [sic] and
potentially worsen her condition and possibly require
surgery or a potential for disability." He further stated
that "[m]y suggestion is that Desiree may perform repetitive
physical activity only if it is a different assembly
procedure or a different process that would change the
motion of her arm and upper extremities." (Ex. 1a, p. 2)
Claimant was put on half days using her right arm for
full duty and her left arm minimally. By June 27, 1990,
claimant began to experience similar symptoms in her right
arm. On June 29, 1990, Dr. Grundberg recommended that
claimant quit her job at Furnas and find something easier to
do somewhere else (Ex. 2a, pp. 2-3). After undergoing
decompression of the left cubital tunnel, Dr. Grundberg
recommended that she not return to her former job and to
work in the future on a non-repetitive basis. He ruled out
all assembly line work (Ex. 2a, p. 4).
Claimant testified that there was no work with employer
she felt she was able to perform and employer testified that
there were no jobs at the plant to accommodate claimant's
restrictions.
Claimant has established by a preponderance of the
evidence that her bilateral cubital tunnel syndrome is
causally related to her work. The sustained and repetitive
use of her arms and hands in building and assembling
switches as a production worker on employer's assembly line
was a substantial factor in causing her condition. Dr.
Fotiadis and Dr. Grundberg have made the required causal
connection. Again, this is not disputed by defendants.
Therefore, claimant has met the first basic requirement
imposed by the statute.
Claimant must also prove by a preponderance of the
evidence that the harmful conditions are more prevalent in
the Furnas workplace than in everyday life or in any other
occupations. Proof of the second element will typically
require a combination of lay and expert testimony.
Claimant's documentary evidence includes OSHA logs showing
that other employees in the plant lost work days due to
reported disorders associated with repeated trauma. These
logs indicate that employer had 26 incidents of lost time
from employment due to repetitive trauma disorders during
1988, 41 incidents in 1989 and 54 incidents in 1990, out of
an assembly line work force of approximately 270 employees.
However, the actual number of employees affected and the
Page 8
type of repetitive trauma disorder alleged is not evident
from the logs introduced into evidence. Ms. Riekena
confirmed the existence of programs enacted by the employer
to study and address the repetitive disorder problem in its
factory. However, she denied that this condition was the
result of a particular hazard or risk peculiar to employer.
The only medical opinion in this regard is a statement made
by Dr. Grundberg that "[t]he kind of repetitive work that
she does has been recognized as causing the problems
described above." Claimant produced no other expert
evidence demonstrating that claimant's manual work which
required the continuous use of her arms was any different
than many other factory manual labor or computer
occupations.
Claimant's physical job requirements are not so unique
as to be characteristic of and peculiar to the business of
employer. Muscle use is common to many other employments.
Claimant worked eight years as a beautician. This work
required repetitive use of the hands, arms and shoulders.
Dr. Grundberg did not identify the kind of work that
claimant performed with employer and it is unclear as to
whether he was familiar with the particulars of her job and
the way it had to be performed. Dr. Grundberg did not visit
claimant's work site and claimant called no other witnesses
from the plant to corroborate her testimony. Dr. Fotiabis
and Dr. Grundberg relied upon claimant's statement of her
medical history and had no reason to believe that she would
have developed cubital tunnel syndrome other than from her
employment with employer. No evidence was produced to show
that the conditions present at the Furnas factory were
present in a peculiar or increased degree by comparison with
everyday life or in other occupations. Claimant has not met
her burden of proof in this regard and therefore, has not
met the threshold requirement of occupational disease.
This issue is dispositive of the entire case and
further analysis is unnecessary..
ORDER
THEREFORE, IT IS ORDERED:
Claimant takes nothing from this proceeding.
The parties shall pay their own costs.
Signed and filed this ____ day of November, 1991.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Steven C. Jayne
Attorney at Law
Page 9
5835 Grand Ave
Suite 201
Des Moines IA 50312
Mr. Joseph S. Cortese, II
Attorney at Law
500 Liberty Bldg
Des Moines IA 50309
Mr. Helmut A. Mueller
Attorney at Law
RR 5
Osceola IA 50213
2203
Filed November 12, 1991
JEAN M. INGRASSIA
before the iowa industrial commissioner
____________________________________________________________
:
DESIREE SIEFKAS, :
:
Claimant, :
:
vs. :
: File No. 944404
FURNAS ELECTRIC COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
2203 - Occupational Disease
The only issue to be determined in this case is whether
claimant sustained an occupational disease as defined in
Iowa Code section 85A.8 (1987) and, if so, the extent of
permanent disability. Determination as to what constitutes
an occupational disease must be made on a case-by-case
basis. To prove the causation element described in section
85A.8, claimant must show by a preponderance of the evidence
(1) the disease is causally related to the exposure to
harmful conditions of the field in employment, and (2) the
harmful conditions must be more prevalent in the employment
concern than in everyday life or in other occupations.
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980);
and Frit Industries v. Langenwalter, 443 N.W.2d 88, (Iowa
App. 1989).
Although McSpadden might be read as eliminating the
arising out of and in the course of requirements, the
statute clearly retains those elements. Perhaps the intent
of the opinion in McSpadden is to emphasize the peculiar
aspects of occupational disease. Lawyer & Higgs, Iowa
Workers' Compensation -- Law and Practice, Chapter 18,
sections 1-3.
Expert medical opinion causally relates claimant's
bilateral cubital tunnel syndrome to her exposure to harmful
conditions (repetitive and excessive movement of the upper
extremities) in her field of employment (production assembly
line worker building pressure switches). However, claimant
failed to prove by a preponderance of the evidence that the
harmful conditions were more prevalent in her employment
than in everyday life or in other occupations. It was found
that continuous use of the arms and hands is no different in
many other factory manual labor and computer occupations and
not so unique as to be characteristic of and peculiar to the
business of this employer. Claimant produced no expert
evidence or corroborating evidence showing the prevalency of
these conditions with employer when compared to everyday
life or other occupations.
Prior to commencing work with employer in August 1987,
claimant was a licensed cosmetologist. She received her
degree in 1979 and worked consistently in that field until
she commenced work with employer. She admitted that the
work required extensive use of her arms and hands, however,
she denied any symptoms of upper extremity pain and numbness
until December 1989. There is only one statement in the
record from Dr. Grundberg, claim-ant's treating surgeon,
which states that: "The kind of repetitive work that she
does has been recognized as causing the problems described
above." Neither Dr. Grundberg nor any other expert visited
claimant's work site and it is unclear whether Dr. Grundberg
was familiar with the particulars of claimant's job or the
manner and frequency in which it was performed.
Since claimant did not meet the threshold requirement
of occupational disease, the issue of disablement as defined
in section 85A.4 was not discussed.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
PETER B. MOORE, :
:
Claimant, :
:
vs. :
: File No. 944606
DAVENPORT MUFFLER SHOPS, INC, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
UNITED STATES FIDELITY & :
GUARANTY COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Peter B.
Moore against Davenport Muffler Shops, Inc., and United
States Fidelity and Guaranty Company based upon an injury
that occurred on January 29, 1990. Claimant seeks
compensation for healing period and also for permanent
partial disability in the event that the healing period has
ended. There is an issue with regard to whether the injury
is a scheduled injury of his right foot or leg or whether it
extends into the body as a whole through his back or a
psychological condition. Claimant also seeks to recover the
expenses of an independent medical examination.
The case was heard at Des Moines, Iowa, on October 29,
1992. The record consists of testimony from witnesses and
joint exhibits 1 through 5, claimant's exhibits 6, 7 & 8 and
defendants' exhibit A through G and I.
Litigation is also pending between the claimant and the
employer regarding compliance with federal wage payment
laws. The parties, during the course of the hearing,
decided that they would not litigate the rate issue in this
case as it might have a preclusive effect on the pending
federal litigation. It was determined that in the event
weekly benefits were awarded by the undersigned that the
benefits would be paid at the rate of $233.17 per week, the
rate that has been paid thus far in this case, and that if
the federal litigation showed the claimant's actual earnings
entitlement to be different than that upon which the rate
which has been used was based, that the issue could be
raised at that time and appropriate adjustments, if any,
made.
FINDINGS OF FACT
Page 2
Having considered all the evidence received, together
with the appearance and demeanor of the witnesses, the
following findings of fact are made:
Peter B. Moore caught the laces of his right boot on a
spinning wheel on January 29, 1990. He eventually entered
into a course of medical care where it was determined that
he had sustained a fracture of the fourth metatarsal in his
right foot. Conservative care was attempted but the
fracture did not heal. Surgical fixation of the fracture
with wires was attempted but was again unsuccessful.
Finally, through surgical fixation using screws, the
physicians at the University of Iowa hospitals were able to
obtain a solid union of the fracture.
The recovery has been compromised, however, by
development of a traumatic plantar neuroma in the ball of
claimant's right foot as a result of the original injury and
surgical procedures which have been performed. Claimant
also has a problem with laxity of the lateral ligaments of
his right foot as a result of the traumatic injury.
Despite the success of the last surgery at obtaining a
union of the fracture, claimant remains quite symptomatic
and unable to resume normal activity due to pain that is
associated with the traumatic plantar neuroma (exhibit 2,
pages 80 & 81). One of his treating physicians, Charles L.
Saltzman, D.O., has rated Peter as having a 24 percent
impairment of his right lower extremity based upon the
impairment in his right foot (ex. 2, p. 82).
Peter has also been evaluated by Bryan D. Den Hartog,
M.D., an orthopedic surgeon, who has determined that Peter
has a neuroma involving the lateral plantar nerve and right
lateral ankle instability. Dr. Den Hartog recommended that
vein conduit surgery be performed in order to re-route the
end of the plantar nerve into the calf of claimant's right
leg in order to resolve the painful neuroma situation that
presently exists. Dr. Den Hartog also recommended that a
procedure be performed, at the same time as the nerve
relocation, in order to stabilize the ligaments of the right
ankle. Peter also has a problem with the small toes of his
right foot clawing. Dr. Den Hartog initially felt that any
surgical treatment of the toes should be delayed but in a
later report indicated that the surgical repair could also
be performed at the same time as the nerve relocation and
ligament stabilization procedures. Dr. Den Hartog felt that
there was approximately a 70 percent chance of a good result
from the surgeries which he has recommended. Upon being
informed that claimant was suffering from depression he
recommended that surgery be delayed until after the
depression had been resolved (ex. 2, pp. 162-165).
Claimant was also evaluated by Jerome G. Bashara, M.D.
Dr. Bashara confirmed the diagnosis of the fractured fourth
metatarsal, the plantar nerve injury and the injury to
ligaments in claimant's right ankle which produced
instability. Dr. Bashara seemed to concur with the surgery
recommended by Dr. Den Hartog though he did not expressly
Page 3
address whether or not it should be performed (ex. 7).
Claimant's records were evaluated by Mitchell J. Cohen,
M.D. Dr. Cohen felt that claimant should be considered
temporarily partially disabled and recommended surgical
management for the foot and ankle pain (defendants' ex. G).
During the course of treatment for the foot and ankle
injury, claimant expressed complaints of pain in his back.
No particular physical abnormality has been noted other than
tenderness, spasm and similar symptoms. Dr. Cohen expressed
the opinion that claimant had no back injury. Dr. Salzman
was unable to relate the back symptoms to the problems with
claimant's foot (ex. 2, p. 83). Dr. Bashara reported that
the back pain was of undetermined etiology but it was
probably related to claimant's abnormal gait and weight
bearing pattern following injury to the foot (ex. 7).
On April 22, 1992, claimant presented himself at the
Iowa Lutheran Hospital emergency room where he was diagnosed
as having an adjustment disorder or a depression secondary
to injury (ex. 2, pp. 166 & 167). He then entered into a
course of treatment with psychiatrist Michael J. Taylor,
M.D. Dr. Taylor has adamantly reported that claimant is
suffering from a major depressive disorder that is directly
causally related to the injury of January 19, 1990. Dr.
Taylor has also recommended that claimant not undergo
surgery on his foot until such time as the depression has
been resolved in order to maximize the chances of a good
result from the surgery. Dr. Taylor expects that, with
appropriate treatment, full recovery can be obtained from
the depression (ex. 7).
Dr. Cohen reported that no comprehensive psychological
report was included in the records that he reviewed and he
found no evidence of a psychiatric disorder other than a
history of substance abuse (ex. G).
The physicians who have been involved in this case seem
to have little disagreement regarding the right foot and
ankle injury. It is found that the injury did produce a
fracture of the fourth metatarsal of the claimant's right
foot and also injured the lateral ligaments of the right
foot and ankle. A satisfactory union of the fracture has
now been achieved. As a result of the trauma and course of
medical treatment, a plantar neuroma developed in claimant's
right foot which causes considerable pain when weight is
placed on the foot. Claimant has a problem with laxity of
ligaments of the right foot and ankle. The problems in the
right foot are amenable to treatment as recommended by Dr.
Den Hartog.
As a result of the problem with bearing weight on the
right foot, claimant has frequently walked using a cane,
crutches or an abnormal gait. As indicated by Dr. Bashara,
the abnormal gait and weight bearing has probably produced
the symptoms which claimant expresses regarding his back.
It is common to see back discomfort associated with an
abnormal gait. No significant abnormality affecting the
claimant's back has been identified. It is found that Dr.
Page 4
Bashara is correct in that the abnormal gait has produced
discomfort in claimant's back. As indicated by the other
physicians, there is no evidence of any injury, disability
or permanent impairment affecting claimant's back. It would
be expected that once the treatment of the foot has been
completed that the back complaints should resolve.
With regard to claimant's depressive episode, it is
found that the assessment made by Dr. Taylor is entitled to
more weight than that of Dr. Cohen. Dr. Taylor has examined
and treated the claimant personally. Dr. Cohen has only
reviewed records. It seems as though Dr. Cohen bases his
opinion of no psychological injury on the fact that he did
not see records of a complete psychiatric evaluation. There
is nothing in the record that Dr. Cohen requested further
detailed records from Dr. Taylor with regard to the
psychiatric condition. The fact that Dr. Cohen did not
examine the records or that other records were not provided
to him does not mean that a proper psychiatric evaluation
was not conducted. Dr. Taylor is a well regarded
psychiatrist. There is no evidence that he has committed
malpractice or otherwise treated this claimant
inappropriately. It is determined that Dr. Taylor performed
whatever evaluation was necessary to reach the conclusions
and opinions that he has provided in his reports. It is
therefore found that the injury to claimant's right foot, in
particular, the enduring painful symptoms despite two
surgical treatments, was a substantial factor is producing
the depression which Dr. Taylor diagnosed. Also, as
indicated by Dr. Taylor, it is expected that the depressive
episode will resolve with appropriate treatment.
At the time of hearing claimant was undergoing
treatment for depression and it was anticipated that
following recovery from the depression, he would then
undergo surgery to repair the remaining abnormalities in his
foot as recommended by Dr. Den Hartog or as may be otherwise
recommended by some other physician depending upon whatever
events might transpire. In view of the fact that claimant
has not been able to resume work, other than an unsuccessful
trial with the employer, that claimant remains under medical
treatment for conditions which were caused by the original
injury, and that further treatment is anticipated, it is
determined that further significant improvement from the
injury is anticipated and the claimant is not medically
capable of returning to employment substantially similar to
that in which he was engaged at the time of the injury.
Vocational consultant Roger Marquardt reported that
maximum medical improvement needed to be achieved in order
to begin serious pursuit of vocational placement (ex. 8).
In obtaining medical treatment claimant incurred fees
and expenses at the University of Iowa Hospitals and Clinics
in the amount of $445 (ex. 6, pp. 1 & 2). He incurred fees
with Dr. Taylor in the amount of $850 (ex. 6, p. 4).
Claimant also incurred fees with Dr. Bashara in the amount
of $700 (ex. 6, p. 5). He incurred fees with Roger
Page 5
Marquardt, a vocational consultant, in the amount of $500
(ex. 6, p. 6). Claimant incurred an expense in the amount
of $145 in obtaining a report from Dr. Salzman (ex. 6, p.
2).
With regard to the foregoing it is found that the fee
charged by Dr. Bashara for an independent medical
examination involving one body part is $475 and that an
additional charge of $225 is made for each additional body
party evaluated (attachment to respondents' contentions for
prehearing report). It is noted that no physician had
evaluated impairment of claimant's spine prior to the rating
from Dr. Bashara.
CONCLUSIONS OF LAW
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
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
Mayeris a reasonable
expectation of improvement of the disabling condition. See
Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa
Ct. App. 1981). Healing period benefits can be interrupted
or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa
1986).
It is well established by the evidence that claimant
injured his right foot and that he has not recovered from
that injury. He remains under treatment, unable to use the
foot for the things for which a person normally uses a foot.
Further surgery is anticipated.
The foot injury is not contested. The contest in the
case involves whether the foot injury has somehow affected
claimant's back or whether it has produced a psychological
injury. It has been found that the injury to the foot has
produced both back complaints and psychological dysfunction.
Based upon the medical evidence in the record it appears as
though the back complaints are due to claimant's abnormal
gait. There is every reason to believe that they will
resolve once treatment of the foot has been completed.
There is no indication that the back complaints are in any
manner independently disabling. Claimant's current
disability exist due to the condition of his right foot, in
particular, the neuroma. The laxity of ligaments is a
lessor problem.
Claimant is also disabled by a major depressive
episode. It is well recognized that a traumatically induced
psychological injury is compensable. Leffler v. Wilson &
Co., 320 N.W.2d 634 (Iowa App. 1982); Dever v Armstrong
Rubber Co., 170 N.W.2d 455 (Iowa 1969). The same is true
when the trauma aggravates a preexisting conditon. Coughlin
v. Quinn Wire and Iron Works, 164 N.W.2d 848 (Iowa 1969).
At the present time it is expected that the depression will
be a temporary condition for which a full recovery will be
obtained.
Supreme court precedent has established that a leg
injury which impairs the nervous system converts the injury
into the body as a whole which compensates the permanent
Page 7
disability industrially rather than as a scheduled injury.
Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660
(1961). The current precedent within this agency, however,
is that an injury to a scheduled member which causes
permanent psychological disability is compensated under the
schedule according to the functional impairment of the
scheduled member and that compensation for the psychological
disability is included within schedule, even though the
recovery under the schedule would be the same if there were
no psychological disability. Hibbs v. Eaton Corp., file no.
753666 (App. Dec. March 30, 1990). The Hibbs decision cites
Cannon v. Keokuk Steel Castings, file no. 795331 (App. Dec.
Jan. 27, 1988). The Cannon case deals with tinnitus and
concludes that it is included in the schedule for loss of
hearing, despite the fact that it does not impair the
hearing. Another agency case with a similar holding is
Pilcher v Penick & Ford, file no. 618597 (App. Dec. Oct.
21, 1987). None of the agency precedents discuss or
reconcile their divergence from Barton. These cases deal
with permanent disability rather than healing period. They
do not limit or relieve defendants from liability for
treating and paying healing period compensation associated
with the psychological disorder.
Claimant is in a healing period status until such time
as his overall physical condition warrants that the healing
period be ended in accordance with section 85.34(1). It is
expected, though not absolutely determined, that the healing
period in this case will end when maximum medical recovery
has been achieved. That is not likely to occur until the
depression is treated to a conclusion of some sort and the
foot condition is likewise treated to a conclusion. The
conditions will be treated to a conclusion when further
active medical treatment is discontinued either through the
recommendation of the physician or when the claimant
declines offered treatment. It is recognized that it would
not be provident to have claimant undergo surgery on his
foot until the depressive episode has been resolved or
treated to a conclusion.
It is therefore determined and concluded that Peter
Moore's healing period resulting from the January 29, 1990
injury, has not yet ended. He is entitled to recover a
running award of weekly compensation for healing period
payable at the rate of $233.17. Defendants are entitled to
credit for all amounts previously paid that were
characterized as permanent partial disability compensation
toward the healing period obligation.
Since claimant remains in a healing period status, the
nature and extent of his permanent disability cannot yet be
determined with certainty. It appears likely as though he
will have some permanent disability and impairment affecting
his right foot and perhaps leg. It appears unlikely that he
will have any permanent psychological or spinal impairment
or disability. Those issues need not and cannot be finally
determined until the healing period has ended.
Page 8
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 treatment claimant received at the University of
Iowa Hospitals and Clinics was as a result of his foot
injury. Defendants are therefore responsible for payment of
those bills in the amount of $445. This same is true with
regard to the expenses incurred with Dr. Taylor in the
amount of $850.
Section 85.39 permits an employee to be reimbursed for
subsequent examination by a physician of the employee's
choice where an employer-retained physician has previously
evaluated "permanent disability" and the employee believes
that the initial evaluation is too low. The section also
permits reimbursement for reasonably necessary
transportation expenses incurred and for any wage loss
occasioned by the employee's attending the subsequent
examination.
Defendants are responsible only for reasonable fees
associated with claimant's independent medical examination.
Claimant has the burden of proving the reasonableness of the
expenses incurred for the examination. See Schintgen v.
Economy Fire & Casualty Co., File No. 855298 (App. April 26,
1991). Defendants' liability for claimant's injury must be
established before defendants are obligated to reimburse
claimant for independent medical examination. McSpadden v.
Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
Dr. Salzman was an employer-selected physician and he
provided a rating of permanent impairment. It is recognized
that the ultimate extent of impairment might be different
than that provided by Dr. Salzman since further surgery is a
possibility. Nevertheless, the criteria under section 85.39
has been met and claimant is entitled to recover the costs
of an evaluation by a physician of his choice, in this case,
Dr. Bashara. Since the only part of claimant's body
addressed by Dr. Salzman with regard to permanent disability
was the foot or lower extremity, the evaluation from Dr.
Bashara is likewise limited to the lower extremity.
Defendants are therefore responsible for paying $475 of the
charges imposed by Dr. Bashara under the provisions of
section 85.39.
Under the provisions of rule 343 IAC 4.33 claimant is
entitled to recover costs. The report from Dr. Salzman in
the amount of $145 qualifies as a matter of costs as does
the report from Roger Marquardt. The costs of such reports
is limited to $150 in accordance to section 622.72 since
Page 9
these reports are received into evidence in lieu of
testimony of the witness. Defendants are therefore
responsible for payment of $150 toward the charges made by
Marquardt and for all $145 of the charges from the
University of Iowa Hospitals for Dr. Salzman's report. As
costs, claimant is also entitled to recover his filing fee
in the amount of $65 and the expenses of a copy of his
deposition in the amount of $64.90 since the deposition was
entered into evidence. Woody v. Machin, 380 N.W.2d 727
(Iowa 1986).
ORDER
IT IS THEREFORE ORDERED that defendants pay Peter B.
Moore weekly compensation for healing period at the rate of
two hundred thirty-three and 17/100 dollars ($233.17) per
week payable commencing January 30, 1990, and running
through the date of the hearing in this case. Defendants
shall continue to pay weekly healing period compensation to
the claimant until such time as the healing period has ended
in accordance with the provisions of section 85.34(1).
Defendants are entitled to a credit for all weekly
compensation previously paid regardless of whether it was
characterized as healing period or permanent partial. Any
unpaid accrued benefits shall be paid to the claimant in a
lump sum together with interest pursuant to section 85.30.
It is further ordered that pursuant to section 85.27
defendants pay claimant's charges with the University of
Iowa Hospitals and Clinics in the amount of four hundred
forty-five dollars ($845) and with Dr. Michael J. Taylor in
the amount of eight hundred fifty dollars ($850).
Defendants shall receive credit for any amounts previously
paid toward such charges.
It is further ordered that defendants pay claimant the
sum of four hundred seventy-five dollars ($475) pursuant to
section 85.39 as reimbursement for the cost of an
independent medical examination performed by Jerome Bashara,
M.D.
It is further ordered that defendants pay the costs of
this action to claimant in the amount of four hundred
twenty-four and 90/100 dollars ($424.90).
It is further ordered that defendants file claim
activity reports as requested by this agency pursuant to
rule 343 IAC 3.1.
It is further ordered that this case be assigned for
hearing on the issue of claimant's entitlement to
compensation for permanent partial disability and any other
issues which may arise with the date of hearing to be
subsequent to July 1, 1993.
Signed and filed this ____ day of March, 1993.
Page 10
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Ms. Jeanine Gazzo
Attorney at Law
2333 McKinly Ave
Des Moines, Iowa 50321
Ms. Iris Post
Attorney at Law
2222 Grand Ave
PO Box 10434
Des Moines, Iowa 50306
Mr. Ralph W. Heninger
Attorney at Law
101 W 2nd St STE 501
Davenport, Iowa 52801
Page 1
1108.20 2204 1803.1 1802
Filed March 23, 1993
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
PETER B. MOORE,
Claimant,
vs.
File No. 944606
DAVENPORT MUFFLER SHOPS, INC,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
UNITED STATES FIDELITY &
GUARANTY COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
1108.20 2204 1803.1 1802
Claimant, who injured foot, held to still be in healing
period status. He was under treatment for depression which
resulted from the foot injury which had not healed well.
More surgery is anticipated as soon as depression resolves.
Agency cases holding schedule controls despite existence of
permanent psychological disability were held to not relieve
employer from liability to pay healing period and treat a
mental condition proximately caused by trauma to a scheduled
member. They only address permanent partial disability and
are inconsistent with supreme court precedent.