BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
MICHAEL DRISCOLL,
Claimant,
vs.
File No. 944659
METZ BAKING COMPANY,
A P P E A L
Employer,
D E C I S I O N
and
SENTRY 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.
ISSUES
The issues on appeal are: Whether claimant's exhibits should be
excluded for failure to timely serve an exhibit list; whether
certain of claimant's witnesses should be prevented from
testifying for failure to timely serve a witness list; and
whether claimant has proved that he suffered an injury on or
about January 26, 1990 that arose out of and in the course of his
employment. Because this is a de novo review and because of the
determinations made below, other issues raised by claimant in his
appeal brief need not be considered.
FINDINGS OF FACT
The findings of fact contained in the proposed agency decision
filed April 23, 1992 are adopted as set forth below. Segments
designated by brackets ([ ]) indicate language that is in
addition to the language of the proposed agency decision.
Michael Driscoll has been employed in the same location by
Metz Baking Company and predecessor employers since 1972. For
approximately ten years prior to January 1990, he operated a
bread oven at the north end of the building. He complains that
for the last two years he suffered symptoms of lightheadedness,
nausea, headaches and a "funny" taste in his mouth which he
attributes to fumes from the bread oven. Since 1979, claimant
has suffered "bakers' asthma," which is controlled by medication.
Claimant appeared at the Finley Hospital emergency room on
January 26, 1990, complaining of nausea and dizziness.
Laboratory testing showed a carbon monoxide level of 1.6 percent
in a reference range of 0-5 percent. Other evidence indicates
that 1.5 percent is normal for a nonsmoker (as is claimant) while
Page 2
9 percent is normal for a smoker. Theophylline level was at 19.2
in a reference of 10-20. Contemporaneous notes of T. Gifford,
M.D., reflect an impression of:
1. Nausea, headache, palpations, etiology
undetermined.
2. High normal Theophylline level.
3. R/O industrial toxin exposure.
"Rule out" or "R/O" is understood as meaning that a given
condition should be ruled out, not that it is ruled out.
[The Peoples Natural Gas Company's field service reports
show that on January 26, 1990 a carbon monoxide check was made
which showed a slight reading above the large oven. (Claimant's
Exhibit 6, page 2) A recheck on the oven was done January 29,
1990 and there was carbon monoxide reading.
Claimant was seen by various doctors several times between
January 13, 1990 and March 1990. Claimant generally complained
of headache, nausea, vomiting, cough and dizziness as well as
cardiac problems. On January 29, 1990 Dr. D. W. Jajtora, M.D.,
wrote that the etiology was unclear and that it appeared
claimant's symptoms related to work although there was no obvious
factors to explain claimant's symptoms. (Cl. Ex. 3, p. 37) On
February 7, 1990 Thomas J. Hughes, M.D., noted that he doubted
that the persistent problem was related to claimant's working
environment. (Cl. Ex. 3, p. 38)
On March 7, 1990 Thomas M. Johnson, M.D., a cardiologist,
wrote that he did not have an opinion as to how any of claimant's
symptoms related his work conditions. (Cl. Ex. 3, pp. 44-45)
On March 12, 1990, Thomas F. Garland, M.D., noted a normal workup
except for benign PVC's. Dr. Garland wrote that claimant's
cardiac symptoms were not related to the work environment because
claimant had been off work for six to seven weeks. (Cl. Ex. 3,
p. 45)
Claimant was off work from January 6, 1990 through February
8, 1990 for multiple unexplained physical findings. Dr. Hughes
took claimant off work from February 8, 1990 through February 27,
1990 for cardiac problems. (Cl. Ex. 3, pp. 67-72) Claimant
returned to work, had similar complaints and sought medical care.
The original notice and petition and the prehearing report
clearly indicate a January 1990 injury. Any possible injury
after that date and treatment for a subsequent injury is not part
of this proceeding.
In a letter dated June 18, 1990 Dr. Hughes wrote that "the
build up of carbon monoxide/carbon dioxide in the work area
certainly did not reach toxic proportions and probably would not
cause symptoms in most individuals." (Cl. Ex. 3, p. 96) In that
letter Dr. Hughes discussed the possibility of the source of
claimant's problems. He indicated that the greatest possibility
was a combination of a toxic level of carbon dioxide/carbon
monoxide gas and claimant's sensitivity to the environment based
Page 3
upon claimant's underlying disease and medications. (Cl. Ex. 3,
p. 97)
Claimant was evaluated by the University of Iowa Hospitals
on September 9, 1991. Daniel Keyser, M.D., in the Department of
Neurology gave an impression that claimant was suffering from
migraine headaches, "many of which are odor induced." (Cl. Ex.
5, p. 10) Dr. Keyser noted that claimant had not missed work
with this headache as it was gone when work started the next day.
On February 16, 1992 Pope Moseley, M.D., in the Division of
Pulmonary Diseases, indicated that claimant's symptoms of
shakiness, weaknesses, nausea, cold sweats, palpitations and
occasional chest pain associated with the onset of the headaches
may be related to his migraine headaches or stress. (Cl. Ex. 5,
p. 14)]
Dr. Gifford requested claimant to decrease his dosage of the
drug Theodur in view of the relatedness of his symptom complex to
Theophylline toxicity, even though claimant reported he did not
experience ill feelings while not in the work environment. Dr.
Gifford also charted that claimant's supervisor, one Robert
Briggs, confirmed that seven people in the department reported
noticing either a gas odor or burning of the eyes, but no one
else reported the same symptomatology as claimant. Mr. Driscoll
was subsequently off work for some seven weeks.
Claimant again visited the emergency room at Finley Hospital
on April 12, 1990. This time, carbon monoxide levels measured
4.9 percent.
Measurements of carbon monoxide and carbon dioxide in the
plant were made on April 6, 1990, by Patzig Testing Laboratories
Company, Inc. Levels were well below permissible exposure limits
(PEL) established by OSHA. [(Cl. Ex. 1)] Testing in May by the
Iowa Division of Labor on this record apparently did not test for
carbon dioxide or monoxide. [Cl. Ex. 2)]
In addition to Dr. Gifford ("etiology undetermined"), two
other physicians have recorded comments as to etiology of
symptoms. On January 31, 1990, Dennis Rajtora, M.D., wrote that
claimant did not have asthma or drug toxicity responsible for
symptoms, particularly carbon monoxide toxicity. Claimant had a
normal blood count and normal liver enzymes. Dr. Rajtora further
indicated that if he found no further abnormalities, claimant
should be evaluated by an industrial physician or by the
University of Iowa Toxicology Department.
On March 14, 1990, Thomas J. Hughes, M.D., "clearly state[d]
that I do not see any evidence of any problem of Mr. Driscoll as
work related." He considered the etiology of claimant's problems
as unknown and unlikely to be identified, but did not believe
that any current complaints were related to employment.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency decision
filed April 23, 1992 are adopted as set forth below. Segments
designated by asterisks (*****) indicate portions of the language
Page 4
from the proposed agency decision that have been intentionally
deleted and do not form a part of this final agency decision.
Segments designated by brackets ([ ]) indicate language that is
in addition to the language of the proposed agency decision.
[The first issue to be resolved is whether claimant's
exhibits should be excluded for failure to timely serve an
exhibit list. Claimant served the list of exhibits less than 15
days prior to the hearing. The case relied upon by the deputy in
excluding the exhibits (Sinclair v. Ellsworth Freight Lines,
Inc.) has been modified since the proposed decision by the
deputy. The standard to be used is whether allowing the exhibits
would be prejudicial to the opposing party. (Sinclair v.
Ellsworth Freight Lines, Inc., File no. 840779, Appeal Decision
July 29, 1993.) There is an indication that defendants had the
exhibits prior to the hearing. (Tr., p. 6) It is not
prejudicial in this case to allow the exhibits. There was no
surprise and no inundation of irrelevant evidence. Claimant's
exhibits should be admitted and they have been considered.
The second issue to be resolved is whether claimant's
witnesses should be excluded from testifying for failure to
timely serve a witness list. The hearing assignment order in
this matter filed September 26, 1991 clearly stated that only
those witnesses listed on the witness list would be permitted to
testify and that the witness list was to be served no later than
fifteen (15) days prior to the date of the hearing. Claimant
failed to comply with the hearing assignment order. Claimant's
witnesses were properly excluded from testifying.
The last issue to be resolved is whether claimant has proved
that he suffered an injury that arose out of and in the course of
his employment in January 1990. The petition filed in this
matter alleges an injury date of January 21, 1990. The
prehearing report refers to an injury date of January 26, 1990.
The January 26, 1990 date will be used as the alleged injury date
as that is the date the parties clearly used for purposes of this
litigation. Events and evidence for possible injuries after that
date have not been pled and are not part of this litigation.]
Claimant has the burden of proving by a preponderance of the
evidence that he received an injury [on January 26, 1993] which
arose out of and in the course of his employment. McDowell v.
Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v.
Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
The words "arising out of" refer to the course or source of
the injury. McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
This requirement is satisfied by showing a causal relationship
between the employment and the injury. Sheerin v. Holin Co., 380
N.W.2d 415 (Iowa 1986).
He also has the burden of proving by a preponderance of the
evidence that any alleged injury is causally related to the
disability on which he now bases his claim. Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O.
Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is
Page 5
insufficient; a probability is necessary. Burt v. John Deere
Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the domain of
expert testimony. Bradshaw v. Iowa Methodist Hosp., 251 Iowa
375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered with all
other evidence introduced bearing on the causal connection.
Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need
not be couched in definite, positive or unequivocal language.
Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However,
the expert opinion may be accepted or rejected, in whole or in
part, by the trier of fact. Id. at 907. Further, the weight to
be given to such an opinion is for the finder of fact, and that
may be affected by the completeness of the premise given the
expert and other surrounding circumstances. Bodish, 257 Iowa
516, 133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261
Iowa 352, 154 N.W.2d 128 (1967).
*****
[When claimant sought treatment for the alleged January 26,
1990 injury tests performed indicated he had a carbon monoxide
level of 1.6 which is within a normal range and is very near the
normal level of 1.5. Tests conducted at the work site by Peoples
Natural Gas Company on January 26, 1990 showed only a slight
reading of carbon monoxide. Drs. Gifford, Rajtora and Hughes
could not relate claimant's symptoms to his alleged work injury
on January 26, 1990. Dr. Hughes later assessment of a variety of
possible causes of claimant's symptoms does not rise to the
necessary level of proving the probable cause of claimant's
symptoms. The opinions of these and other doctors that symptoms
claimant suffered at later times were related to work do not
relate the work exposure on January 26, 1990 to claimant's later
symptoms. The issue of whether claimant may have suffered an
injury on a later date is not properly an issue in the instant
proceedings.
Claimant has clearly not met his burden of proving that he
suffered an injury on January 26, 1990. Claimant therefore shall
take nothing from these proceedings.]
WHEREFORE, the decision of the deputy is affirmed in part and
reversed in part.
ORDER
THEREFORE, it is ordered:
That claimant shall take nothing from these proceedings.
That claimant shall pay the costs of the appeal including the
transcription of the hearing. Defendants shall pay all other
costs.
Signed and filed this ____ day of August, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Page 6
Copies To:
Mr. David A. Lemanski
Attorney at Law
1141 Main Street
Dubuque, Iowa 52001
Mr. Harry W. Dahl
Attorney at Law
974 73rd Street
Suite 16
Des Moines, Iowa 50312
1401.20; 2906
Filed August 23, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MICHAEL DRISCOLL,
Claimant,
vs.
File No. 944659
METZ BAKING COMPANY,
A P P E A L
Employer,
D E C I S I O N
and
SENTRY INSURANCE,
Insurance Carrier,
Defendants.
____________________________________________________________
1402.30
Claimant failed to prove his symptoms were caused by toxic
exposure to fumes on the alleged injury date. Tests
performed on claimant on the alleged injury date showed a
near normal level of carbon monoxide. A test in the
workplace indicated only a slight level of carbon monoxide.
None of several doctors related claimant's symptoms to a
work incident on the date alleged.
2906
Under Sinclair v. Ellsworth Freight Lines, file no. 840779,
Appeal Decision July 29, 1993, claimant's exhibits were
allowed as evidence despite the failure to file a timely
exhibit list. Defendants had been served the exhibits.
There was no surprise and no inundation of irrelevant
evidence. Claimant was permitted to testify personally, and
rebuttal evidence was taken from another witness, even
though service of a witness list was also untimely. Other
witnesses were excluded from testifying because claimant
failed to follow the hearing assignment order and timely
serve a witness list.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
MICHAEL DRISCOLL, :
:
Claimant, :
:
vs. : File No. 944659
:
METZ BAKING COMPANY, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
SENTRY INSURANCE, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
statement of the case
Claimant Michael Driscoll seeks benefits under the Iowa
Workers' Compensation Act upon his petition in arbitration
against employer Metz Baking Company and its insurance
carrier, Sentry Insurance. He asserts that he sustained an
industrial injury through inhalation of carbon monoxide or
other toxic gases and now alleges an injury date of January
26, 1990 (his petition alleged January 21).
This cause came on for hearing in Dubuque, Iowa, on
March 12, 1992. Claimant's exhibits 1 through 6 were
offered into evidence, but excluded upon objection for
failure to timely serve witness and exhibit lists as
required by the hearing assignment order filed on September
26, 1991. See Sinclair v. Ellsworth Freight Lines, File No.
840779 (App. Decn., January 31, 1992). Claimant's exhibits
7 and 8 were received, as were defendants' exhibits A, B and
C. Claimant, William Kehl and Carl Kent testified at
hearing, Mr. Kent as a rebuttal witness.
issues
The parties have stipulated to the existence of an
employment relationship at the time of the alleged injury
and to the appropriate rate of compensation.
Page 2
Issues presented for resolution include:
1. Whether claimant sustained an injury arising out of
and in the course of his employment on January 26, 1990;
2. Whether there exists a causal relationship between
the claimed injury and temporary or permanent disability;
3. The extent of temporary and/or permanent
disability;
4. Entitlement to medical benefits under Iowa Code
section 85.27; and,
5. To what extent defendants are entitled to credit
for sick pay or disability income under Iowa Code section
85.38(2).
findings of fact
The undersigned deputy industrial commissioner finds:
Michael Driscoll has been employed in the same location
by Metz Baking Company and predecessor employers since 1972.
For approximately ten years prior to January 1990, he
operated a bread oven at the north end of the building. He
complains that for the last two years he suffered symptoms
of lightheadedness, nausea, headaches and a "funny" taste in
his mouth which he attributes to fumes from the bread oven.
Since 1979, claimant has suffered "bakers' asthma," which is
controlled by medication.
Claimant appeared at the Finley Hospital emergency room
on January 26, 1990, complaining of nausea and dizziness.
Laboratory testing showed a carbon monoxide level of 1.6
percent in a reference range of 0-5 percent. Other evidence
indicates that 1.5 percent is normal for a nonsmoker (as is
claimant) while 9 percent is normal for a smoker.
Theophylline level was at 19.2 in a reference of 10-20.
Contemporaneous notes of T. Gifford, M.D., reflect an
impression of:
1. Nausea, headache, palpations, etiology
undetermined.
2. High normal Theophylline level.
3. R/O industrial toxin exposure.
"Rule out" or "R/O" is understood as meaning that a given
condition should be ruled out, not that it is ruled out.
Dr. Gifford requested claimant to decrease his dosage
of the drug Theodur in view of the relatedness of his
symptom complex to Theophylline toxicity, even though
claimant reported he did not experience ill feelings while
not in the work environment. Dr. Gifford also charted that
claimant's supervisor, one Robert Briggs, confirmed that
seven people in the department reported noticing either a
gas odor or burning of the eyes, but no one else reported
the same symptomatology as claimant. Mr. Driscoll was
Page 3
subsequently off work for some seven weeks.
Claimant again visited the emergency room at Finley
Hospital on April 12, 1990. This time, carbon monoxide
levels measured 4.9 percent.
Measurements of carbon monoxide and carbon dioxide in
the plant were made on April 6, 1990, by Patzig Testing
Laboratories Company, Inc. Levels were well below
permissible exposure limits (PEL) established by OSHA.
Testing in May by the Iowa Division of Labor on this record
apparently did not test for carbon dioxide or monoxide.
In addition to Dr. Gifford ("etiology undetermined"),
two other physicians have recorded comments as to etiology
of symptoms. On January 31, 1990, Dennis Rajtora, M.D.,
wrote that claimant did not have asthma or drug toxicity
responsible for symptoms, particularly carbon monoxide
toxicity. Claimant had a normal blood count and normal
liver enzymes. Dr. Rajtora further indicated that if he
found no further abnormalities, claimant should be evaluated
by an industrial physician or by the University of Iowa
Toxicology Department.
On March 14, 1990, Thomas J. Hughes, M.D., "clearly
state[d] that I do not see any evidence of any problem of
Mr. Driscoll as work related." He considered the etiology
of claimant's problems as unknown and unlikely to be
identified, but did not believe that any current complaints
were related to employment.
conclusions of law
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury which arose out
of and in the course of his employment. McDowell v. Town of
Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent.
Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
The words "arising out of" refer to the course or
source of the injury. McClure v. Union County, 188 N.W.2d
283 (Iowa 1971). This requirement is satisfied by showing a
causal relationship between the employment and the injury.
Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986).
He also has the burden of proving by a preponderance of
the evidence that any alleged injury is causally related to
the disability on which he now bases his claim. Bodish v.
Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl
v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A
possibility is insufficient; a probability is necessary.
Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691,
73 N.W.2d 732 (1955). The question of causal connection is
essentially within the domain of expert testimony. Bradshaw
v. Iowa Methodist Hosp., 251 Iowa 375, 101 N.W.2d 167
(1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
Page 4
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261
Iowa 352, 154 N.W.2d 128 (1967).
If claimant had fallen off a ladder and broken his arm
upon landing, expert testimony might arguably be less
essential in relating the employment relationship to
disability. Cases of alleged toxic exposure are more
complex. Expert testimony is much more significant, since
symptoms such as dizziness and nausea may stem from numerous
causes, not all of which are work related. On the record
presented, there is no medical opinion causally relating
claimant's symptoms to any toxic exposure. Dr. Gifford
finds that etiology is undetermined. Dr. Rajtora finds no
drug toxicity responsible for symptoms. Dr. Hughes does not
believe that any of claimant's medical complaints are
related to employment.
It must then be concluded that claimant has failed to
meet his burden of proof on the "arising out of employment"
issue. Defendants accordingly prevail.
Other issues are thereby rendered moot.
order
THEREFORE, IT IS ORDERED:
Claimant shall take nothing from these proceedings.
Costs are assessed to defendants pursuant to rule 343
IAC 4.33.
Signed and filed this ______ day of ____________, 1992.
______________________________
DAVID RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. David A. Lemanski
Attorney at Law
1141 Main Street
Dubuque, Iowa 52001
Mr. Harry W. Dahl
Attorney at Law
974 73rd Street
Page 5
Suite 16
Des Moines, Iowa 50312
1108.40; 1402.30; 2906
Filed April 23, 1992
DAVID RASEY
before the iowa industrial commissioner
____________________________________________________________
:
MICHAEL DRISCOLL, :
:
Claimant, :
:
vs. : File No. 944659
:
METZ BAKING COMPANY, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
SENTRY INSURANCE, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
1108.40; 1402.30; 2906
Under Sinclair v. Ellsworth Freight Lines, claimant's
exhibits were excluded for failure to file an exhibit list.
Claimant was permitted to testify personally, and rebuttal
evidence was taken from another witness, even though service
of a witness list was also untimely.
On the record made, claimant failed to prove his symptoms
were caused by toxic exposure to fumes.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
LAURREL LEE CLINE, :
:
Claimant, :
:
vs. :
: File No. 945159
MACKAY ENVELOPE CORPORATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LUMBERMAN'S UNDERWRITING :
ALLIANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
This is a proceeding in arbitration brought by Laurrel
Lee Cline, claimant, against MacKay Envelope Corporation,
employer, and Lumberman's Underwriting Alliance, insurance
carrier, to recover benefits under the Iowa Worker's
Compensation Act as a result of an injury sustained on
January 22, 1990. This matter came on for hearing before
the undersigned deputy industrial commissioner on April 16,
1992. The record was considered fully submitted at the
close of the hearing. The claimant was present and
testified. Also present and testifying at the hearing was
Margie Cline, Barbara Laughlin and Ron Clouse. The
documentary evidence identified in the record consists of
joint exhibits 1-22 and defendants' exhibits A-D.
issues
Pursuant to the prehearing report and order dated April
16, 1992, the parties have presented the following issues
for resolution:
1. Whether claimant's injury on January 22, 1990
resulted in permanent disability, and
2. Whether defendants are entitled to apportionment
and/or credit for benefits paid in a prior work-related
injury with employer.
Page 2
findings of fact
The undersigned has carefully considered all of the
testimony given at the hearing, the arguments made, the
evidence contained in the exhibits, and makes the following
findings:
Claimant was born on March 16, 1939 and completed the
ninth grade of school. He obtained his GED certificate in
1991. Claimant's work history consists primarily of manual
labor. He owned and operated a service station from 1974 to
1981 and a small engine repair shop from 1981 to 1982. On
November 19, 1981, he commenced employment with MacKay
Envelope Corporation. He started as a machine adjuster at
approximately $4.00 an hour. He transferred to Warehouse
and Shipping and as of March 2, 1990, he was earning $9.01
an hour.
The pertinent medical evidence of record reveals that
claimant was seen by Webster B. Gelman, M.D., at the
Steindler Orthopedic Clinic in Iowa City, Iowa on July 5,
1984, with complaints of severe low back pain and right leg
pain. This was subsequently diagnosed as a herniated disc
at L4-5, on the right. On July 6, 1984, Dr. Gelman
performed a laminectomy and removal of herniated
intervertebral discs. Dr. Gelman released claimant for
light duty in November 1984. He assessed a 15 percent
permanent partial disability due to loss of disc and some
residual muscle weakness. (Exhibit 3, pages 42-46).
Dr. Gelman retired and claimant's care was assumed by
William R. Pontarelli, M.D.
Despite surgery, claimant continued to have leg pain
and a feeling of weakness in his right foot. On September
17, 1985, Dr. Pontarelli placed claimant on permanent light
duty work with restrictions including no repetitive bending,
stooping or lifting. He was advised to work in a position
where he could alternate between sitting and standing and to
lift no more than 25 pounds. (Ex. 3, p. 36).
Claimant and employer entered into an agreement for
settlement on May 16, 1984 that his injury arose out of and
in the course of employment with employer and as a result of
said injury sustained 25 percent permanent partial
disability. (File number 766450).
In the last six months of 1987, claimant began
experiencing steadily increasing episodic low back pain
which he attributed to his work activity. Dr. Pontarelli
administered a trigger injection to his back on February 5,
1988 and advised him to reinstitute his exercise program.
(Ex. 3, p. 35).
On August 9, 1988, claimant presented to Dr. Pontarelli
with severe back and leg pain which he attributed to a fall
at home one week prior. A CT examination was performed on
August 23, 1988, which revealed some scarring at L4-5 but no
recurrent herniated discs. Claimant was released to return
to work on September 16, 1988 under his previous
Page 3
restrictions. (Ex. 3, pp. 33-35).
Claimant required no additional medical until February
26, 1990, when he saw Steven M. Readinger, M.D., with
complaints of low back pain which occurred after falling on
his back at work on January 22, 1990. On examination, Dr.
Readinger noted very limited flexion and extension. Pending
further examination by Dr. Pontarelli, claimant was limited
to lifting no more than five pounds. (Ex. 4).
Claimant saw Dr. Pontarelli on April 5, 1990. X-rays
revealed complete degeneration of the L4-5 and L5-S1 disc
with no instability. A MRI scan was obtained on April 23,
1990. Dr. Pontarelli reported ..."it doesn't appear that he
has a problem at L5-S1, other than degenerative disc disease
or at L4-5. The degenerative disc at L4-5 seems to be
complicated by a protrusion, but on the actual scan there
doesn't appear any displacement of neural elements. His
L3-4 disc appears clean." Dr. Pontarelli indicated that
claimant probably suffered an aggravation of the L4-5 and
L5-S1 condition. He felt additional surgery was unwarranted
and referred him to a supervised physical therapy program
leading to work hardening. He recommended claimant remain
off work until further evaluation. (Ex. 3, pp. 30-31).
Claimant participated in a physical therapy program at
Mercy Hospital in Iowa City, Iowa from May 1, 1990 through
June 29, 1990. (Ex. 6). On July 2, 1990, Dr. Pontarelli
indicated that claimant needed additional treatment and he
referred him to the University of Iowa Low Back
Rehabilitation Program. (Ex. 3, pp. 26-27).
Claimant was then referred by insurance carrier to
William R. Boulden, M.D., orthopedist, for evaluation and
second opinion on August 1, 1990. After conducting a
physical examination and reviewing x-rays and MRI scan, Dr.
Boulden's impression was, "Status post discectomy L4/5 with
residual severe degenerative disc disease L4/5, L5/S1." He
felt that claimant was suffering from chronic pain syndrome
and he recommended physical therapy with simultaneous pain
management. (Ex. 1, pp. 1-4).
Claimant underwent a comprehensive multi-disciplinary
evaluation at the Spine Diagnostic and Treatment Center,
University of Iowa Hospitals and Clinics in Iowa City, Iowa
on September 26, 1990. On October 8, 1990, a report was
issued by James N. Weinstein, M.D., and Ted Wernimont,
M.S.W., which concluded that claimant had reached maximum
medical healing at this time. He was given a 12 percent
body as a whole impairment rating and currently restricted
to lifting 15 pounds, no more than four times per hour and 8
pounds repetitively. He was advised that these restrictions
were temporary and capable of improving with an aggressive
rehabilitation program. He was advised to begin an exercise
and aerobic training program and to contact the Division of
Vocational Rehabilitation in his area. He was assured that
his back situation was totally solid, stable and healed but
acknowledged that he was experiencing chronic pain. (Ex. 7,
pp. 69-72).
Page 4
Claimant returned to the Department of Orthopaedics at
the Spine Diagnostic and Treatment Center on November 8,
1990 for three coping skills and support group sessions.
After an interview with Mr. Wernimont, it was recommended
that the insurance carrier secure a professional
rehabilitation consultant to work with claimant. It was
felt that claimant had too many fears and financial concerns
to make progress in their rehabilitation program. (Ex. 7,
pp. 66-68).
Claimant's attorney referred him to G. Brian Paprocki,
vocational consultant, for evaluation. Mr. Paprocki
interviewed claimant on December 5, 1990 and March 3, 1991.
He submitted a report dated March 4, 1991, in which he
opined that based on claimant's age, education, past work
experience and medical restrictions, he is precluded from
performing any of his past relevant work. He concluded that
claimant's occupational prospects are limited to unskilled
work activity such as security guard, production assembler,
hand/machine packager, cashier and salesperson. (Ex. 2).
Insurance carrier referred claimant to Barbara Laughlin
for a vocational assessment on June 10, 1991. After an
initial interview, Mrs. Laughlin contacted employer and the
Spine Clinic for input in making a final vocational
assessment. (Ex. 5).
On June 14, 1991, Mrs. Laughlin met with Ron Clause,
plant manager at MacKay Envelope. She toured the plant and
was shown specific jobs that they felt claimant could
perform. On June 17, 1991, she wrote to Dr. Weinstein
requesting his opinion as to whether claimant would be able
to perform the specific duties of a forklift driver and box
assembler. (Ex. 21 & 25). Dr. Weinstein responded on July
24, 1991 and indicated that based on a September 19, 1990
functional capacity evaluation, claimant's repetitive
lifting limit remains at 8 pounds and his one time lifting
ability at 15 pounds. After consulting the physical
therapist, Dr. Weinstein indicated that claimant should be
able to perform work as a box assembler and possibly
forklift driver. (Ex. 22).
Claimant returned to work with employer as a box
assembler on September 15, 1991. Claimant testified that he
was placed on the night shift from 11:30 p.m. to 7:30 a.m.
He was paid $9.26 per hour making boxes in the warehouse.
He testified that he continued to have spasms and pain
radiating into his buttocks, legs and balls of his feet. He
stated that this job required frequent bending which
exacerbated his symptoms. Without personally notifying his
supervisor or the plant manager, claimant voluntarily quit
his employment on January 15, 1992. He testified that the
job exceeded his physical restrictions. This was denied by
the plant manager.
On February 10, 1992, Dr. Pontarelli reported to
claimant's attorney that after examining claimant and
performing further diagnostic studies, Mr. Cline's
capabilities and functional impairment has not changed. It
was his opinion that claimant does not require future
Page 5
therapy or treatment, other than medication, and his
greatest need is vocational rehabilitation counseling. (Ex.
3, p. 24).
On March 26, 1992, Dr. Pontarelli reported, that, in
his opinion, claimant is totally disabled from performing
his prior work activity but not other work. (Ex. 3, p.
46B).
conclusions of law
Since claimant has suffered an injury, the next
question to be resolved is whether the injury has caused a
permanent disability. The claimant has the burden of
proving by a preponderance of the evidence that the injury
of January 22, 1990, is causally related to the disability
on which he now bases his claim. Bodish v. Fischer, Inc.,
133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18
N.W.2d 607, 613-14 (Iowa 1945). A possibility if
insufficient; a probability is necessary. Burt v. John
Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa
1955). The question of causal connection is essentially
within the domain of expert testimony. Bradshaw v. Iowa
Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert
medical evidence must be considered with all other evidence
introduced bearing on the causal connection. Burt, 73
N.W.2d at 738. The opinion of the experts need not be
couched in definite, positive or unequivocal language.
Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).
Moreover, the expert opinion may be accepted or rejected, in
whole or in part, by the trier of fact. Sondag, 220 N.W.2d
at 907. Finally, the weight to be given to such an opinion
is for the finder of fact, and that may be affected by the
completeness of the premise given the expert and other
material circumstances. Bodish, 133 N.W.2d at 870;
Musselman, 154 N.W.2d at 133. The Supreme Court has also
observed that greater deference is ordinarily accorded
expert testimony where the opinion necessarily rests on
medical expertise. Sondag, 220 N.W.2d at 907.
The record in this case clearly demonstrates that on
January 22, 1990, claimant suffered an exacerbation of his
preexisting back condition due to a work-related injury with
employer. Prior to this injury, claimant sustained a back
injury with this employer on May 14, 1984. Surgical
intervention was required and permanent restrictions of no
repetitive bending, stooping or lifting and lifting over 25
pounds were imposed. (Ex. 3, p. 36). As a result of the
second back injury, claimant's lifting limits were reduced
to 15 pounds, no more than four times per hour and
repetitive lifting of approximately 8 pounds. (Ex. 7, p.
70).
Claimant's limitations and restrictions result from
chronic low back pain. Dr. Weinstein reported in October
1990, "We certainly realize at this time that you are having
significant low back pain and that the pain is very
real....there certainly are findings to indicate reasons for
low back discomfort, but at this time, there is absolutely
no surgical procedure which could be of any benefit, and
Page 6
what we have found to be most helpful for people in your
situation, is a good aggressive, positive exercise and
aerobic program." (Ex. 7, pp. 69-70).
Dr. Weinstein's October 8, 1990 report states, in
pertinent part:
For worker's compensation purposes, we feel that
you indeed exacerbated a preexisting back
condition in the work-related fall in January of
1990. We do feel that you have reached maximum
medical healing at this time and that the body as
a whole impairment rating for this low back injury
is 12%.
(Ex. 7, p. 71).
In regard to the 12 percent impairment rating, Dr.
Weinstein explained on February 7, 1991 that approximately
eight percent-ten percent is related to claimant's prior
surgery. (Ex. 7, p. 60).
The greater weight of the evidence supports claimant's
contentions that he has a permanent impairment as a result
of the January 22, 1990 injury. Defendants have presented
no medical evidence to the contrary. Therefore, claimant
has met his burden of proof that the disability on which he
now bases his claim is causally connected to his injury with
employer.
Claimant also contends that he is totally disabled and
entitled to be considered an odd-lot employee.
In examining the odd-lot question, there are two cases
that offer guidance. In Guyton v. Irving Jensen Co., 373
N.W.2d 101, 105 (Iowa 1985) the Supreme Court adopted the
odd-lot doctrine. Under this doctrine, the Court found that
a worker becomes an odd-lot employee when an injury makes
the worker incapable of obtaining employment in any
well-known branch of the labor market. An odd-lot worker is
thus totally disabled if the only services the worker can
perform are so limited in quality, dependability, or
quantity that a reasonably stable market for them does not
exist. In Hainey v. Protein Blender, 445 N.W.2d 398, 400
(Iowa App. 1989), the Court of Appeals provided some
explanation of the Guyton decision. Among other things, the
court concluded that if a person has no reasonable prospect
of steady employment, that individual has no prospect of
material earning capacity. Additionally, this standard
contemplates that the injured worker will take some
affirmative action to either find employment or take other
steps to improve the prospects for reemployment. If the
injured worker remains unemployable even after this effort,
then an odd lot designation can be made. Guyton, 373 N.W.2d
at 105, Hainey, 445 N.W.2d at 400.
Ultimately, the application of the odd-lot doctrine
involves an allocation of the burden of production of
evidence. The Supreme Court found that the burden of
persuasion on the issue of industrial disability always
Page 7
remains with the worker. If the evidence of the degree of
obvious physical impairment coupled with other factors such
as claimant's mental capacity, education, training or age
place claimant prima facie in the odd-lot category, the
burden should be on the employer to show that some kind of
suitable work is regularly and continuously available to the
claimant. Guyton, 373 N.W.2d at 105; Hainey, 445 N.W.2d at
400.
Claimant has not met his burden of proof. No doctor
who has treated and/or examined has indicated that he is
permanently and totally disabled and unable to perform any
work-related activity. Dr. Pontarelli indicated that
claimant could not perform his past work activity but did
not rule out other work which would allow him to alternate
between sitting and standing in order to achieve maximum
comfort and which required no repetitive lifting, bending
and stooping. Claimant has not cooperated with defendants'
offer of vocational rehabilitation and his job search has
been half-hearted at best. He testified that he applied for
a security guard position one month prior to the hearing.
He appears unmotivated to return to work.
Claimant testified that he walks two miles every
evening and attends toy auctions whenever possible. While
claimant has significant physical restrictions, claimant has
done nothing to rehabilitate himself in order to return to
the competitive job market. The multi-disciplinary team in
Iowa City indicated that he is 100 percent rehabilitatable
with proper utilization of resources and a strong effort on
his part. They felt that full-time gainful employment is
absolutely attainable. (Ex. 7, p. 71). Claimant has made
little effort in this regard and has failed to prove that he
is unemployable in the competitive labor market. Therefore,
his request for odd-lot status is denied.
Although claimant is not an odd-lot employee, he does
have a permanent partial disability. Therefore, the next
issue to be determined is the extent of claimant's
disability.
Industrial disability was defined in Diederich v.
Tri-City Railway Co., 258 N.W.2d 899, 902 (Iowa 1935) as
loss of earning capacity and not a mere `functional
disability' to be computed in the terms of percentages of
the total physical and mental ability of a normal person.
The essence of an earning capacity inquiry then, is not how
much has the claimant been functionally impaired, but
whether that impairment, in combination with the claimant's
age, education, work experience, pre and post injury wages,
motivation and ability to get a job within his restrictions,
if any restrictions have been imposed, have caused a loss of
earning capacity. Olson v. Goodyear Service Store, 125
N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway
Co., 258 N.W. 899, 902 (Iowa 1935); Peterson v. Truck Haven
Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658
(1985); Christensen v. Hagen, Inc., 1 Iowa Industrial Comm'r
Dec. No. 3, 529, 534-535 (1985).
There are no weighting guidelines that indicate how
Page 8
each of the factors are to be considered. There is no
equation which can be applied and then calculated to
determine the degree of industrial disability to the body as
a whole. It therefore becomes necessary for the deputy or
commissioner to draw upon prior experience and general and
specialized knowledge to make a finding with regard to the
degree of industrial disability. See, Peterson, 1 Iowa
Industrial Commissioner Decisions No. 3, at 658;
Christening, 1 Iowa Industrial Commissioner Decisions No.
3, at 535.
Claimant is 53 years old. His peak earning years of
employment are behind him. Therefore, his industrial
disability is less serious than it would be for a worker who
is in the peak earning years of employment. 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
782670 & 805200 (Appeal Decision 1989).
Claimant completed the ninth grade of school and
dropped out at age 16 due to lack of interest. He obtained
a GED certificate in 1991. He took some drafting courses in
the 1950's. His past work experience has been as a heavy
equipment operator and truck driver while in the National
Guard and Army Reserve; farm laborer and automobile service
station attendant involving light vehicle maintenance;
foundry laborer; brake press operator; machine set-up man in
cardboard box factory; owner-operator of automobile service
station and wheelhorse tractor dealership; machine adjuster;
forklift operator; and box maker. Most of these jobs
involved heavy strenuous labor and knowledge of equipment
and machinery. His back impairment and restrictions
preclude him from performing most of his past work activity.
Employer returned claimant to work activity on
September 15, 1991. Claimant was assigned to work as a box
assembler wherein his restrictions were accommodated.
Claimant terminated his employment with employer on January
15, 1992, allegedly due to severe and intractable back pain
exacerbated by his work activity. Claimant provided no
medical evidence to support his contentions. No physician
took claimant off work or stated that he was unable to
perform the work offered him by employer. In fact, Dr.
Weinstein indicated otherwise. As previously noted,
claimant refused to participate in any vocational
rehabilitation program offered by employer. Claimant
voluntarily quit his job without notice to employer or
attempting to negotiate changes in the way he was expected
to perform his job.
Defendant made great efforts to accommodate claimant's
needs and should not be penalized for claimant's refusal to
accept the offered work. If employers are to be held
accountable for their failure to accommodate an employee
after an injury, they should not be held unduly liable when
acceptable attempts at rehabilitation and reemployment are
Page 9
arbitrarily rejected. Claimant's loss of earning capacity
or industrial disability is therefore diminished
accordingly. Cf. McSpadden v. Big Ben Coal Co., 288 N.W.2d
181 (Iowa 1980); Blacksmith v. All-American, Inc., 290
N.W.2d 348 (Iowa 1980).
Claimant's injury has resulted in a loss of earning
capacity. His refusal to return to work or look for
alternate employment has resulted in loss of earnings.
However, while employers are responsible for the reduction
of earning capacity caused by the injury, they are not
responsible for loss of actual earnings because the employee
resists or refuses to return to work. Williams v. Firestone
Tire and Rubber Co., III Iowa Industrial Commissioner Report
279 (1982)
Based upon the foregoing factors, all of the factors
used to determine industrial disability, and employing
agency expertise, it is determined that claimant sustained a
50 percent industrial disability. Since claimant's second
injury aggravated a preexisting back condition for which he
was previously paid 125 weeks of permanent partial
disability benefits, employer is entitled to a credit of 125
weeks and is currently liable for 125 weeks of permanent
partial disability benefits due to aggravation of a
preexisting back condition for the second injury.
Page 10
order
THEREFORE, it is ordered:
That defendants pay the claimant two hundred fifty
(250) weeks of permanent partial disability benefits at the
rate of two hundred twenty-two and 33/100 dollars ($222.33)
per week commencing October 8, 1990.
That defendants receive credit for workers'
compensation benefits previously paid.
That defendants receive credit for one hundred
twenty-five (125) weeks of permanent partial disability
benefits previously paid pursuant to an injury incurred by
claimant on May 14, 1984.
That defendants pay all costs pursuant to rule 343 IAC
4.33.
That defendants pay accrued amounts in a lump sum.
That defendants pay interest pursuant to Iowa Code
section 85.30.
That defendants file claim activity reports as required
by the agency.
Signed and filed this ____ day of April, 1992.
________________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Steven J Crowley
Attorney at Law
100 Valley Street
PO Box 517
Burlington Iowa 52601
Mr Michael R Hoffmann
Attorney at Law
Breakwater Building
3708 75th Street
Des Moines Iowa 50322
5-1803; 5-1702
JEAN M.INGRASSIA
Filed April 24, 1992
before the iowa industrial commissioner
____________________________________________________________
:
LAURREL LEE CLINE, :
:
Claimant, :
:
vs. :
: File No. 945159
MACKAY ENVELOPE CORPORATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LUMBERMAN'S UNDERWRITING :
ALLIANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
Claimant incurred a back injury on May 14, 1984. He
underwent surgery in July 1984 and was released to return to
work in November 1984. He was given restrictions regarding
repetitive bending, stooping and lifting. He was advised
not to lift more than 25 pounds at a time. Claimant entered
into a stipulated agreement with employer where it was
acknowledged that he sustained a 25 percent permanent
partial disability.
On January 22, 1990, claimant re-injured his back in a
work-related incident. Defendants admitted liability but
disputed the extent of disability. Based on all the factors
of industrial disability, it was determined that claimant
was 50 percent industrially disabled.
5-1702
Defendants were given a credit for 125 weeks of benefits
previously paid to claimant as a result of his May 14, 1984
injury.
Defendants were given credit for workers' compensation
benefits previously paid as a result of the January 22, 1990
injury.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
RICHARD ALLSUP, :
:
Claimant, :
:
vs. :
: File No. 945395
ATLAS FOUNDATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
WAUSAU INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Richard
Allsup, claimant, against Atlas Foundation, employer, and
Wausau Insurance Companies, insurance carrier, defendants,
for workers' compensation benefits as a result of an alleged
injury on March 1, 1990. On November 1, 1992 a hearing was
held on claimant's petition and the matter was considered
fully submitted at the close of this hearing.
The parties have submitted a prehearing report of con
tested issues and stipulations which was approved and
accepted as a part of the record of this case at the time of
hearing. The oral testimony and written exhibits received
during the hearing are set forth in the hearing transcript.
According to the prehearing report, the parties have
stipulated to the following matters:
1. On March 1, 1990 claimant received an injury aris
ing out of and in the course of employment with Atlas.
2. Claimant is not seeking additional temporary total
or healing period benefits in this proceeding at this time.
3. If the injury is found to have caused permanent
disability, the type of disability is an industrial disabil
ity to the body as a whole.
ISSUES
The parties submitted the following issues for determi
nation in this proceeding:
Page 2
I. Whether or not benefits are suspended due to a
refusal to submit to a medical examination requested by
defendants; and,
II. The extent of claimant's entitlement to permanent
disability benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
Claimant is 50 years of age with a seventh or eighth
grade education. Claimant could not recall if he completed
eighth grade. At the time of injury, claimant was a union
millwright and carpenter. The injury occurred when claimant
received a severe electrical shock when a boom from a truck
on which he was riding made contact with a high voltage
power line. Claimant sustained burn injuries in the foot
and leg and claims injuries to his hip and low back. He
also claims a psychological injury in the form of a post
traumatic stress disorder as a result of his electrocution.
On or about May 4, 1992, during the pendancy of this
proceeding, defendants requested that claimant travel to
Neenah, Wisconsin for evaluation by physicians at the
Industrial Injury Clinic. According to the evidence, this
clinic performs evaluations of industrial injuries in a
multi-disciplinary manner with a large team of physicians.
Claimant refused. Evaluations at this Neenah facility take
place over a consecutive three day period of time. Claimant
would have to travel approximately 100 miles to attend such
an evaluation. A clinical psychologist who has evaluated
claimant, Thomas Sannito, Ph.D., opines that there is ade
quate psychological professionals in Iowa to evaluate
claimant and that it would be harmful and deleterious to his
psychological state to stay over night for a three day exam
ination.
A psychiatrist and a psychologist at the Industrial
Injury Clinic disagree with Dr. Sannito. Evidence was sub
mitted showing that claimant has traveled in excess of that
distance in the last two years to go deer hunting.
Claimant has failed to show that defendants' request
for evaluation is unreasonable or that it would be harmful
to claimant.
CONCLUSIONS OF LAW
I. Iowa Code section 85.39 states in part as follows:
After an injury, the employee, if requested by the
employer, shall submit for examination at some reasonable
time and place and as often as reasonably requested, to a
physician or physicians authorized to practice under the
Page 3
laws of this state or another state,...The refusal of the
employee to submit to the examination shall suspend the
employee's right to any compensation for the period of the
refusal. Compensation shall not be payable for the period
of suspension.
In the case sub judice, claimant refused a reasonable
examination. The statutory language in section 85.39
clearly contemplates examinations out of the borders of this
state. Claimant failed to show that his refusal is reason
able. Claimant's entitlement to benefits must be suspended.
As benefits cannot be paid during suspension, the issue
of entitlement to further benefits is not a justifiable
issue. Furthermore, defendants have been denied full dis
covery and it would be unfair to proceed to decide on com
pensation benefits without an evaluation they requested.
Consequently, further proceedings are suspended indefi
nitely until such time as claimant submits to independent
evaluation. In the interest of justice, claimant's claim
herein should not be dismissed immediately. Claimant shall
be given time within which to submit to examination.
Defendants shall be awarded costs.
ORDER
1. Claimant's entitlement to workers' compensation
benefits, if any, is hereby suspended from May 4, 1992 until
such time as he submits to evaluation at the Industrial
Injury Clinic in Neenah, Wisconsin.
2. After a period of 90 days following the date of
this order, defendants may move for dismissal of claimant's
petition with prejudice if claimant continues to refuse to
submit to examination as requested or the parties may
jointly request a scheduling of a hearing on remaining
issues from the hearing administrator.
3. Claimant shall pay the costs of this action pur
suant to rule 343 IAC 4.33.
Signed and filed this ____ day of October, 1992.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Page 4
Mr. Jeffrey P. Berg
Attorney at Law
300 American Building
101 Second Street SE
Cedar Rapids, Iowa 52401
Mr. Craig A. Levien
Attorney at Law
600 Union Arcade Building
111 East Third Street
Davenport, Iowa 52801
2502
Filed October 14, 1992
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RICHARD ALLSUP,
Claimant,
vs.
File No. 945395
ATLAS FOUNDATION,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
WAUSAU INSURANCE COMPANIES,
Insurance Carrier,
Defendants.
___________________________________________________________
2502 - Refusal to Submit for Employer Requested Examination
Hearing on entitlement to permanent compensation benefits
placed on hold for 90 days due to refusal to submit to
evaluation. Claimant failed to show that traveling 100
miles for evaluation in Neenah, Wisconsin was unreasonable
especially when he traveled a greater distance on a couple
of occasions to hunt deer.
It was held that proceeding with the hearing without the
requested examination would be unfair to defendants.
Claimant was given 90 days to submit after which time the
matter would either be dismissed or set for hearing.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
DENNIS G. ROBINSON, :
:
Claimant, :
:
vs. :
: File No. 945523
MCCRACKEN CONCRETE PIPE :
MACHINERY 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 :
GROUP, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
Claimant, Dennis G. Robinson, seeks benefits under the
Iowa Workers' Compensation Act upon his petition in
arbitration against defendant employer, McCracken Concrete
Pipe Machinery Company, and its insurance carrier, Liberty
Mutual Insurance Group. Mr. Robinson sustained a bilateral
repetitive motion injury to the wrists on or about July 14,
1989.
This cause came on for hearing in Sioux City, Iowa on
November 16, 1992. The record consists of claimant's
testimony and joint exhibits 1-38.
issues
The parties have stipulated that claimant sustained an
injury arising out of and in the course of his employment on
July 14, 1989, that the injury caused both temporary and
permanent disability, to the rate of compensation ($283.02
per week), that all requested medical benefits have been or
will be paid by defendants, and to the voluntarily payment
of certain benefits prior to hearing.
Issues presented for resolution include:
1. The extent of entitlement to healing period
benefits;
2. The nature and extent of permanent disability.
Page 2
findings of fact
The undersigned deputy industrial commissioner finds:
Dennis Robinson took employment with McCracken Concrete
Pipe Machinery Company in February 1978. He began as an
ironworker, forming steel sheets, for several months before
beginning work as a welder. He continued this work through
the date of injury. His duties involved much use of heavy
tools, such as hammers and two-handed grinders.
Claimant eventually developed bilateral symptoms of
pain and numbness diagnosed as carpal tunnel syndrome. He
underwent a surgical release on the left side on September
12, 1989, and on the right side on September 28, 1989. John
J. Dougherty, M.D., was the treating surgeon.
After Mr. Robinson returned to work (at the same job),
healing went well with the right hand, but poorly on the
left side. Symptoms of pain, numbness and loss of strength
gradually worsened in the left hand, especially in June and
July 1990, after which he again left work.
Claimant was admitted to the Marian Health Center on
August 21, 1990, upon Dr. Dougherty's impression of
stenosing tenosynovitis of the abductor tendons of the left
thumb and deQuervain's disease with previous carpal tunnel
release. Dr. Dougherty performed an incision of the tendon
sheath and release of the tendons on the same day, but
claimant experienced no relief. Dr. Dougherty finds no
causal nexus between his diagnosed stenosing tenosynovitis
of the thumb and claimant's carpal tunnel syndrome.
On May 31, 1990, Dr. Dougherty assigned a two percent
impairment rating to the right hand. On January 15, 1991,
he assigned a five percent impairment of the upper
extremity, presumably meaning the left side. "Upper
extremity" is understood as referring to the arm. In a
letter dated May 8, 1991, Dr. Dougherty made reference to a
three to five percent impairment and expressed the opinion
that "torn ligaments" diagnosed at the Mayo Clinic were
probably due to a single incident, rather than work related
overuse syndrome.
In March 1991, claimant was seen at the Mayo Clinic in
Minnesota by Allen T. Bishop, M.D. Dr. Bishop performed a
diagnostic wrist arthroscopy on April 20, 1991, finding a
pathologically torn scapholunate ligament which he repaired.
Dr. Bishop found that the ligament injury appeared to be one
of chronic attrition. On June 10, 1991, he wrote that,
"Attributing etiology of this to work is somewhat difficult
but it is at least a factor in the occurrence of this injury
as well in my opinion." Symptoms were "certainly in part
due to his employment." On October 7, 1991, Dr. Bishop
specified that the scapholunate ligament injury was "indeed
the result of work related repetitive use." He noted that
patients frequently presented to the section of hand surgery
at Mayo with no history of definite severe wrist injury, but
with a history of heavy labor consistent with a gradual
attritional change at the scapholunate interosseous area
Page 3
resulting in subsequent instability and symptomatology.
On January 10, 1992, Dr. Bishop assigned an impairment
rating equivalent to 14 percent of the upper extremity,
again understood as meaning arm. The impairment was based
on the American Medical Association Guides to the Evaluation
of Permanent Impairment.
Certain healing period benefits were paid
intermittently through May 12, 1991 on a voluntary basis.
The parties dispute entitlement to such benefits thereafter.
As of December 5, 1991, Dr. Bishop wrote that claimant had
continued to improve and that it was hoped that symptoms
would further improve with time.
conclusions of law
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 parties agree that claimant sustained a repetitive
motion injury arising out of and in the course of
employment. The disagreement relates to whether the
ligament tear repaired by Dr. Bishop bears a causal nexus to
work activities. Dr. Dougherty believes not; Dr. Bishop is
of the opposite view. Dr. Bishop's opinion is found more
persuasive. He was the treating surgeon who successfully
diagnosed claimant's actual problem, and finds this
consistent with his experience at the Mayo Clinic, where
other patients typically do no relate similar problems to a
single traumatic incident, but rather to repetitive trauma.
Claimant has met his burden of proof on the causation issue.
Healing period is in dispute subsequent to May 12,
1991.
Under Iowa Code section 85.34(1), healing period is
compensable beginning on the date of injury and continuing
until the employee has returned to work, it is medically
indicated that significant improvement from the injury is
not anticipated, or until the employee is medically capable
of returning to substantially similar employment, whichever
first occurs.
Dr. Bishop rendered an impairment rating on January 10,
1992. Doing so indicates that no further improvement is
anticipated. Thus, claimant is entitled to additional
healing period benefits from May 13, 1991 through January
10, 1992, or a total of 34 weeks, 5 days.
The parties dispute not only the extent, but the very
nature of claimant's entitlement to permanent disability
Page 4
benefits. Claimant is of the view that the injury should be
compensated industrially (that is, as a measure of loss of
earning capacity) because two scheduled members are
involved. This issue has been already determined adversely
to claimant by the Iowa Supreme Court in Simbro v. DeLong's
Sportswear, 332 N.W.2d 886 (Iowa 1983).
Under Iowa Code section 85.34(2)(s), as interpreted by
Simbro, permanent disability to two scheduled members as
the result of a single accident is to be compensated on the
basis of functional loss as a percentage of 500 weeks.
Dr. Dougherty finds a two percent impairment to the
right hand. Under the Guides to the Evaluation of Permanent
Impairment (3rd Edition) published by the American Medical
Association, this loss is equivalent to a two percent
impairment to the upper extremity or arm, also a one percent
impairment to whole person. Dr. Bishop finds a fourteen
percent impairment of the upper extremity on the left side,
equivalent to a eight percent impairment of the whole
person. The AMA combined values chart shows that a two
percent and an eight percent impairment considered together
constitutes a ten percent loss to the body as a whole. Ten
percent of 500 weeks is 50 weeks.
order
THEREFORE, IT IS ORDERED:
Defendants shall pay unto claimant additional healing
period benefits of thirty-four point seven one four (34.714)
weeks commencing May 13, 1991 at the stipulated rate of two
hundred eight-three and 02/100 dollars ($283.02) per week,
totaling nine thousand eight hundred twenty-four and 76/100
dollars ($9,824.76).
Defendants shall pay unto claimant fifty (50) weeks of
permanent partial disability at the stipulated rate
commencing January 11, 1992, totaling fourteen thousand one
hundred fifty-one dollars ($14,151.00).
Defendants shall have credit for permanent partial
disability benefits voluntarily paid to date.
All accrued benefits shall be paid in a lump sum
together with statutory interest pursuant to Iowa Code
section 85.30.
Costs are assessed to defendants pursuant to rule 343
IAC 4.33.
Defendants shall file claim activity reports as
requested by the agency pursuant to rule 343 IAC 3.1
Signed and filed this ____ day of December, 1992.
Page 5
________________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Robert B Deck
Attorney at Law
225 Frances Building
Sioux City Iowa 51101
Mr James M Cosgrove
Attorney at Law
1109 Badgerow Building
PO Box 1828
Sioux City Iowa 51102
5-1808
Filed December 7, 1992
DAVID R. RASEY
before the iowa industrial commissioner
____________________________________________________________
:
DENNIS G. ROBINSON, :
:
Claimant, :
:
vs. :
: File No. 945523
MCCRACKEN CONCRETE PIPE :
MACHINERY 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 :
GROUP, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1808
Under Simbro v. DeLong's Sportswear, simultaneous injury to
two scheduled members is compensated functionally, not
industrially.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
MARIE CLUNEY, :
:
Claimant, :
:
vs. :
: File No. 945696
REAMES FOODS, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
KEMPER 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.
ISSUES
I. Whether the deputy erred in concluding that
the claimant's shoulder injury was a
body-as-a-whole injury rather than an injury to a
scheduled member.
II. Whether the deputy erred in awarding 40%
industrial disability.
III. The deputy erred in concluding that the
claimant's shoulder injury was a body-as-a-whole
injury rather than an injury to a scheduled
member.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed December 3, 1993 are adopted as final agency
action.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed December 3, 1993 are adopted as set forth
below. Segments designated by asterisks (*****) indicate
portions of the language from the proposed agency decision
that have been intentionally deleted and do not form a part
of this final agency decision. Segments designated by
brackets ([ ]) indicate language that is in addition to the
language of the proposed agency decision.
A great deal of the dispute in this case surrounds the
Page 2
issue of whether this is a scheduled injury to the arm
compensable under section 85.34(2)(m) or an injury
compensable under section 85.34(2)(u). Iowa Code section
85.34(2)(m) states, "The loss of two-thirds of that part of
an arm between the shoulder joint and the elbow joint shall
equal the loss of an arm...." Section 85.34(2)(u) states,
"In all cases of permanent partial disability other than
those hereinabove described or referred to in paragraphs "a"
through "t" hereof, the compensation shall be paid during
the number of weeks in relation to five hundred weeks as the
disability bears to the body of the injured employee as a
whole."
A recent case dealing with this issue is Lauhoff Grain
v. McIntosh, 395 N.W.2d 834 (Iowa 1986). In that decision
the supreme court stated "We conclude that Iowa Code section
85.34(2)(o) in defining a leg, does not include a hip
joint." *****Similarly, logic indicates that in code
section 85.34(2)(m), the word "arm" does not include a
shoulder joint.
An elementary understanding of terminology and anatomy
is critical. The rotator cuff is an anatomical structure
which is part of the structures which connect the arm to the
shoulder girdle. It is the socket portion of the shoulder
joint which is a ball and socket type of joint. The head of
the humerus is the ball portion of the joint. The acromion
is a part of the bone known as the scapula or sometimes
commonly referred to as the shoulder blade. The clavicle is
a bone that links the sternum to the scapula. It is
sometimes referred to as the collarbone.
The American Heritage Dictionary, 2d College Ed.,
defines "arm" as "an upper limb of the human body connecting
the hand and wrist to the shoulder." In common usage, the
term "arm" means the portion of the human body which is
composed of the upper arm (humerus) and forearm (radius and
ulna). In common usage it sometimes includes the hand and
wrist. No authority has been found in any dictionary,
treatise or from common usage which includes the clavicle or
scapula as part of the arm. For purposes of section
85.34(2)(m) "arm" has its common meaning, namely, the upper
limb which connects the wrist to the shoulder. The word
"arm" does not include the shoulder.
In medical terminology, as used by the medical
profession, the term "arm" means "the segment of the
superior limb between the shoulder and the elbow."
Stedman's Medical Dictionary, 24th ed., p. 109. That
reference goes on to recognize that the term "arm" is
inaptly used by the general population to mean the whole
superior limb.
A great deal of the confusion dealing with shoulder and
hip injuries arises from use of the medical terminology
"upper extremity" and "lower extremity." Some individuals
tend to use those terms interchangeably with the terms "arm"
and "leg" which appear in the statute. Those terms are not
synonymous and using them interchangeably creates confusion,
errors and incorrect results. The term "upper extremity"
Page 3
has a precise meaning. In Gray's Anatomy, copyright 1974,
32d printing, at page 134, upper extremity is defined, "The
bones of the upper extremity consist of those of the
shoulder girdle, the arm, the forearm, and the hand. The
term "shoulder girdle" is also defined. "The shoulder
girdle consists of two bones, the clavicle and the scapula."
On that page and the following pages, the extremities, their
function and other basic anatomical facts are described.
(Some older, obsolete versions of Gray's use the terms "arm"
and "upper extremity" interchangeably but current versions
make a distinction.)
The term "upper extremity" is used in the Guides to
Evaluation of Permanent Impairment, 3d ed. (revised),
published by the American Medical Association. The Guides
are commonly used to obtain predictable impairment ratings
for specified medical conditions. The Guides provide
impairment ratings of "extremities." The Guides do not
provide impairment ratings for "arms" and "legs." It is for
this reason that in Lauhoff the supreme court stated, "The
AMA guide relied on is of doubtful authority in this case,
in any event, because it includes the hip as part of the
`lower extremity' a term which is not found in our statutory
schedule." (pp. 839 & 840) Abnormal motion of the shoulder
is rated at pages 34-38 of the Guides as impairment of the
"upper extremity." The term "shoulder" is defined in
Stedman's Medical Dictionary, 24th Edition at page 1282 as
"the lateral portion of the scapular region, where the
scapula joins with the clavicle and humerus and is covered
by the rounded mass of the deltoid muscle." It is therefore
clear that the term "upper extremity" includes not only the
hand and the arm (in its common usage) but it also includes
the shoulder.
When a physician uses the terms "body as a whole" or
"whole person," it means the trunk of the body, exclusive of
the extremities. It does not include the hips or shoulders
since they are parts of the lower and upper extremities.
*****
The term "impairment of the upper extremity" may
properly be used by the medical profession to define an
injury which, for workers' compensation purposes, is limited
to the hand, is limited to the arm or which exists only in
the shoulder. Impairment of many parts of the body can be
converted under the Guides to an equivalent impairment of
other parts or of the whole person. A doctor's choice of
terminology or choice of converting or not converting has no
bearing upon the ultimate determination of where the
disability and impairment is actually located. The fact
that a physician rates impairment as being of the "upper
extremity" does not indicate whether or not it is limited to
the arm or hand.
More than 40 years ago the Iowa Supreme Court dealt
with a case in which the employee had suffered a fracture of
the distal end of the collarbone (clavicle) where it joins
the shoulder blade. In medical terminology, those
structures are the distal end of the clavicle and the
Page 4
acromion. In that case, the employer asserted that the
disability should be compensated as a scheduled disability
of the arm. In rejecting that argument the Iowa Supreme
Court stated, "Moreover it assumes an injury to the shoulder
is an injury to an arm. This assumption is unwarranted.
Subsection 13 [the current equivalent of section
85.34(2)(m)] does not apply to a shoulder injury, nor is
such an injury scheduled in any other subsection...."
emphasis added. Alm v. Morris Barick Cattle Co., 240 Iowa
1174, 1177 38 N.W.2d 161 (1949).
That case cites Dailey v. Pooley Lumber Co., 233 Iowa
758, 10 N.W.2d 569 (1943). Dailey was a case in which the
employee had suffered a fracture of the femur. It did not
heal properly (an apparently common occurrence), and the
result was absorption or atrophy changes in the acetabulum
(hip socket) although not marked. There also resulted
tilting of the pelvis and a compensatory curvature of the
spine.*****
In that case the Iowa Supreme Court*****stated: "But
where there is injury to some scheduled member, and also to
parts of the body not included in the schedule, the
resultant `permanent total disability' if established, is
compensable under Code section 1395" [The counterpart of
current section 85.34(3)]. emphasis added. The court went
on to state, "It is our conclusion appellee's injury is not
within the schedules of Code section 1396 because the actual
physical injury extended beyond and outside the scheduled
area." 233 Iowa page 765 (emphasis added)
The Iowa Supreme Court recently again addressed the
issue of scheduled versus nonscheduled injuries in the cases
Mortimer v. Fruehauf Corporation, 502 N.W.2d 12 (Iowa
1993) and Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa
1986).*****In Lauhauff the supreme court relied heavily upon
the medical reference Gray's Anatomy. The court also
recognized the distinction between the terminology of "lower
extremity" which is used in the AMA Guides and the "leg"
which is found in the statute. The illustrative portion of
the decision states:
Lauhoff argues that, even if a hip is
considered to be a part of the body as a whole,
there can be no recovery of benefits for
industrial disability unless it is shown that a
part of the body other than the leg is impaired.
This, of course, is true. It argues, however,
that, since the function of a hip is to provide
articulation for the leg, impairment of the hip
translates only in impairment of the leg, and is
therefore governed by the leg schedule.
We reject this argument; the impairment of body
functions in this case were in the hip, not the
leg, and we will not consider these functions to
be coextensive merely because the hip function
impacts on that of the leg. To do so would extend
the application of Iowa Code section 85.34(2)(o)
beyond its express terms by applying it to a body
Page 5
member not expressly included. (emphasis added).
The result would be a rupturing of the conceptual
tidiness which is said to be the very essense of
the scheduled-injury approach. (Lauhoff Grain v.
McIntosh, 395 N.W.2d 834, 840 (Iowa 1986)
The most recent case addressing whether an injury
should be compensated by the schedule is Mortimer, 502
N.W.2d 12. In that case the court confirmed the well
established principle that the workers' compensation
statutes are to be construed liberally to benefit the
injured worker.*****In Mortimer this court stated:
A. Compensability under Iowa's workers'
compensation act. Before proceeding to the
question at hand, we think it would be helpful to
review the compensation scheme under Iowa Code
chapter 85, Iowa's workers' compensation act. As
a creature of statute, our workers' compensation
law--subject to constitutional limitations--may
provide such provisions and limitations as the
legislature deems necessary. But, as we noted
earlier, this law is for the benefit of the
working person and should be, within reason,
liberally construed.
Functional disability is arrived at by
determining the impairment of the employee's body
function. This disability is limited to the loss
of the physiological capacity of the body or body
part. Simbro v. Delong's Sportswear, 332 N.W.2d
886, 887 (Iowa 1983).
In contrast, industrial disability is arrived
at by determining the loss to the employee's
earning capacity of the body or body part. In
this determination impairment of the body
function--that is, functional disability--is just
one factor. Other factors include the employee's
age, education, qualifications, experience, and
the inability of the employee to engage in
employment for which the employee is fitted. All
of these factors are used to measure the extent to
which the injury impairs the employee's ability to
earn wages. Id.
Chapter 85 divides permanent partial disability
into either a scheduled or unscheduled loss. See
Iowa Code 85.34(2). Paragraphs (a) through (t)
of section 85.34(2) are reserved for scheduled
injuries, like a loss of a foot. Specific weekly
benefits are listed. For example, paragraph (n)
provides for weekly compensation during one
hundred fifty weeks for loss of a foot.
Unscheduled injuries are covered in paragraph (u).
Benefits for these are based on the injury to the
body as a whole. See Iowa Code 85.34(2)(u)
("compensation shall be paid during the number of
weeks in relation to five hundred weeks as the
Page 6
disability bears to the body of the injured
employee as a whole").
We have approved the use of functional
industrial methods of determination within
appropriate classifications of section 85.34(2).
For example, a specific scheduled disability is
determined by the functional method; an
unscheduled disability is determined by the
industrial method. Simbro, 332 N.W.2d at 887; see
also Graves v. Eagle Iron Works, 331 N.W.2d 116,
117-19 (Iowa 1983) (held that an employee with a
permanent partial disability to a leg had a
scheduled disability that required the
determination of functional impairment of his leg
without regard to the industrial disability
factors). So a person may suffer a permanent
total disability as a result of some scheduled
injury. This may happen because of age, lack of
training, or other condition peculiar to the
person. Yet such an injury is arbitrarily
compensable according to the schedule.
An unscheduled injury can result in permanent
total disability. In these circumstances, the
"weekly compensation is payable during the period
of the employee's disability." See Iowa Code
85.34(3).
....
...Unscheduled injuries are covered in
paragraph (u) of section 85.34(2).... This
provision sets no limitation as to the physical
location of the injury causing the disability.
The only limitation regarding location of the
injury concerns permanent partial disabilities
arising from scheduled injuries. And although
such injuries may cause permanent total disability
because of the claimant's lack of education or
experience or physical strength or ability, the
injuries are arbitrarily compensable according to
the schedule. This is so because the legislature
in its wisdom has seen fit to give the commission
no discretion with regard to scheduled injuries.
The legislature did this in order to make certain
the amount of compensation in cases of specific
injuries and to avoid controversies. But where
there is injury to a scheduled member and also to
parts of the body not included in this schedule,
there is no logical reason for such arbitrariness.
*****
Two recent appeal decisions issued by this agency deal
with injuries in the acromioclavicular area of the shoulder.
Those decisions are Hike v. IBP, inc., file number 764571
(App. Dec. Oct. 23, 1990); and Prewitt v. Firestone Tire and
Rubber Co., file numbers 931128 and 876686 (App. Dec. Aug.
Page 7
12, 1992). Lauhoff is a case where the initial trauma and
injury was to a scheduled member, the leg, as evidenced by
the fracture of the femur. The injury was taken into the
body by after effects which ran into the hip joint. Hike,
Prewitt and the instant case, all involve situations where
the initial trauma and anatomical injury was not located in
a scheduled member. In all three of these cases, the
initial, primary trauma and injury was to the shoulder
girdle, a situation much like the situation in Alm.*****In
the instant case, there is no evidence of any significant
injury, anatomical damage, derangement or other problem
within the arm itself.*****
*****
[The method by which claimant's injury will be
compensated is determined by whether the impairment
resulting from the injury is confined to one of the
scheduled members enumerated under Iowa Code 85.34(2)(a-t),
or whether the impairment is to another part of the body.
Prewitt v. Firestone Tire and Rubber Co., Appeal Decision,
August 12, 1992. In the instant case, Dr. Misol has imposed
restrictions on claimant to avoid repetitive lifting,
pushing, pulling or working above shoulder level. He has
also advised her to avoid reaching above the shoulders. The
greater weight of the medical evidence shows that claimant's
impairment from her injury is in the use of her shoulder.
Under Prewitt and other cases, this requires that the injury
be compensated industrially under Iowa Code 85.34(2)(u).]
Since claimant has an impairment to the body as a
whole, an industrial disability has been sustained.
Industrial disability was defined in Diederich v. Tri-City
Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It
is therefore plain that the legislature intended the term
`disability' to mean `industrial disability' or loss of
earning capacity and not a mere `functional disability' to
be computed in the terms of percentages of the total
physical and mental ability of a normal man."
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications,
experience, motivation, loss of earnings, severity and situs
of the injury, work restrictions, inability to engage in
employment for which the employee is fitted and the
employer's offer of work or failure to so offer. Olson v.
Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963);
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980);
Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660
(1961).
*****
Marie's current effort at obtaining education in the
clerical field is certainly prudent. Were it not for her
efforts to obtain re-employment and enhance her
employability, her prospects for obtaining any meaningful
replacement employment would be quite bleak. The forecast
Page 8
and projections expressed in the Corvel report of July 2,
1993 (ex. 5, pp. 13-16) are questionable to come extent. It
is noted that of those jobs listed, those entitled
housekeeper, duplicating machine operator, library assistant
and short order cook might exceed the restrictions
recommended by Dr. Misol. The three clerk jobs could
likewise involve lifting which exceeds Dr. Misol's
restrictions. Many articles in department stores exceed 20
pounds in weight and must be lifted and bagged by the
cashier or sales clerk. Further, the labor market
implications portion of the report speaks of the "number of
employment opportunities in the area of sales, clerical and
service..." as showing growth. It is well recognized that
those areas are certainly experiencing growth but those also
are areas where a very substantial portion of the growth is
for part-time jobs. Marie has lost the ability to perform
manufacturing jobs. Her lack of success at obtaining
replacement employment since the DOT Drug job ended, despite
the assistance of a vocational consultant, illustrates the
difficulty Marie is likely to have in obtaining replacement
employment which provides her a level of annual earnings
comparable to that which she experienced while she was
employed by Reames. The report from Corvel does not address
the likelihood of obtaining full-time employment. It does
not identify how many of the jobs openings that it refers to
were part-time, rather than 40-hour per week jobs. It does
not address how many of the 40-hour per week jobs fall
within Marie's physical capabilities. Where it states
"positions mentioned earlier would be slightly below this
mark ($200-$250 weekly)." It apparently is assuming 40
hours of work per week rather than part-time employment. It
is unknown whether claimant will be able to successfully
complete that training. Generally speaking, jobs in the
sales, clerical and service industries do not pay as well as
jobs in manufacturing. Marie has lost the ability to hold
most manufacturing jobs. The mere fact that this injury has
required Marie to leave the manufacturing field indicates
that she has experienced a considerable loss of earning
capacity.
When all the material factors of industrial disability
are considered, it is determined that Marie Cluney has
experienced a 40 percent permanent partial disability as a
result of her March 22, 1990 injury. This entitles her to
receive 200 weeks of permanent partial disability
compensation under the provisions of Code section
85.34(2)(u).
As stipulated, defendants are liable to pay healing
period compensation from October 20, 1992 through March 3,
1993, a span of 19 3/7 weeks.
WHEREFORE, the decision of the deputy is affirmed.
ORDER
THEREFORE, it is ordered:
That defendants pay claimant nineteen and
three-sevenths (19 3/7) weeks of compensation for healing
Page 9
period at the rate of one hundred sixty-one and 52/100
dollars ($161.52) per week payable commencing October 20,
1992.
That defendants pay Marie Cluney two hundred (200)
weeks of compensation for permanent partial disability at
the stipulated rate of one hundred sixty-one and 52/100
dollars ($161.52) per week payable commencing March 4, 1993.
That defendants shall receive credit for the weekly
compensation previously paid. Any accrued, past due amounts
shall be paid in a lump sum together with interest pursuant
to section 85.30.
That ordered that the costs of this action are assessed
against defendants.
That defendants file claim activity reports as
requested by this agency.
Signed and filed this ____ day of May, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr David Drake
Attorney at Law
West Towers Office
1200 35th St STE 500
West Des Moines IA 50265
Mr Thomas M Plaza
Attorney at Law
701 Pierce St STE 300
PO Box 3086
Sioux City Iowa 51102-3086
1803.1
Filed May 31, 1994
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
MARIE CLUNEY, :
:
Claimant, :
:
vs. :
: File No. 945696
REAMES FOODS, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
KEMPER INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1803.1
Claimant with bilateral shoulder impingement syndrome held
to have an unscheduled injury. Claimant's restrictions not
to lift above shoulder height indicated impairment was to
the shoulder and extended beyond the scheduled member. She
was awarded 40 percent permanent partial disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
MARIE CLUNEY, :
:
Claimant, :
:
vs. :
: File No. 945696
REAMES FOODS, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
KEMPER GROUP, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Marie Cluney
against Reames Foods, her former employer, and Kemper Insurance
Group as a result of a stipulated injury of March 22, 1990. The
only issue is determination of the claimant's entitlement to
compensation for permanent partial disability. An underlying
issue is whether the disability is a scheduled disability or
whether it is one which is to be compensated industrially.
The case was heard at Des Moines, Iowa, on September 1,
1993. The evidence consists of testimony from Marie Cluney and
jointly offered exhibits 1 through 5.
FINDINGS OF FACT
Marie Cluney is a 60-year-old woman who obtained a GED
following the injury in this case. She is currently enrolled in
a clerical training program at Des Moines Area Community College.
Marie's work history includes restaurant, grocery store and
janitorial work. A considerable amount of her work history is in
the manufacturing industry. She has some supervisory experience.
Marie was employed by Reames Foods from 1984 until 1991. Her
employment was terminated as a result of her inability to perform
the essential functions of the job due to disabilities resulting
from the injury which is the subject of this case.
In February 1991 Marie obtained employment as the cash
office clerk at a DOT Drug Store. She held that job until the
store closed. She was paid $5.25 per hour. Her duties included
supervision of the sales clerks and reconciling the cash and cash
registers with sales. The work bothered Marie's shoulders but
she performed it. It was necessary for her to receive assistance
from the Iowa Department of Vocational Rehabilitation in order to
be able to perform that job. She had been off work since March
1990 before obtaining that job and had been searching for work
since approximately August 1990. Marie was with DOT Drug for
Page 2
slightly over one year. The store closed February 28, 1992. She
has not worked anywhere since the DOT Drug Store closed.
When employed at Reames Marie had been earning in the range
of $12 thousand or $13 thousand per year from her employment.
There were periodic lay offs for which she received unemployment
ranging from a few hundred dollars per year up to $2 thousand per
year. During the last three years of her employment at Reames,
her income from all sources was in the range of $13 thousand to
$14 thousand. It was approximately $11 thousand in 1986 and $9
thousand in 1985 (exhibit 4). If the DOT Drug job had continued
her annual earnings would have been approximately $11 thousand
for 1992.
When Marie first reported her injury she was sent to David
T. Berg, M.D., and then referred to Orthopedic Surgeon Peter
Wirtz, M.D. Her condition was diagnosed as impingement syndrome
(ex. 1, p. 2). She was taken off work and treated
conservatively. On November 15, 1990, Dr. Wirtz felt that she
had reached maximum medical recovery and assigned a 4 percent
impairment rating for each upper extremity (ex. 1, pages 27-28).
Marie then obtained her job at Dot Drug. Following the end of
the job at DOT Drug she decided to proceed to surgery.
Arthroscopic surgery was performed by Orthopedic Surgeon Sinesio
Misol, M.D., on October 21, 1992 (ex. 1, p. 21). The surgery was
performed only on claimant's right shoulder because it was the
most symptomatic. Following a relatively unremarkable course of
recovery, Dr. Misol issued a report on March 16, 1993, in which
he stated that she had achieved maximum medical improvement (ex.
1, p. 16). Dr. Misol has since rated claimant as having a 10
percent permanent impairment of the right upper extremity but no
ratable impairment of the left (ex. 1, pp. 23, 26). Dr. Misol
has recommended that she avoid repetitive lifting, pushing,
pulling or working above shoulder level. He stated that she
should follow a 20-pound weight restriction and avoid reaching
above the shoulders. He recommended that she avoid reaching to
the side higher than at a 45 degree angle. He stated that she
should do well in any job where her arms are at waist level (ex.
1, pp. 24, 26). Dr. Wirtz had earlier recommended similar
activity restrictions (ex. 1, p. 8).
It is noted that there is some apparent disagreement between
Dr. Misol and Dr. Wirtz with regard to the amount of permanent
impairment and whether or not the left upper extremity is
impaired. It is noted that Dr. Misol's activity restrictions are
not limited to the right side. They apply bilaterally. For this
reason it is determined that while the problem with claimant's
left shoulder might not be ratable, the shoulder is,
nevertheless, afflicted with some level of disability. The
process of rating permanent impairments is somewhat arbitrary.
Objective standards are set and when those standards are met
specified degrees of impairment are assignable. When evaluating
loss, or loss of use, the recommended activity restrictions are
as important a factor as the numerical impairment rating. It is
found that the claimant has disability afflicting both of her
shoulders and that the disability is 10 percent in the right as
indicated by Dr. Misol and that the left shoulder has an
Page 3
equivalent disability.
It is found that the actual situs of the injury, impairment
and disability is in the claimant's shoulders. While it
manifests itself principally in loss of her ability to make use
of her arms and restrictions dealing with use of her arms, the
actual physical damage and derangement is in her shoulders and
shoulder joints. Her arms are not damaged or impaired. The
damage and impairment is in her shoulders and as a result of that
damage and impairment she is not able to make full use of her
arms.
CONCLUSIONS OF LAW
A great deal of the dispute in this case surrounds the issue
of whether this is a scheduled injury to the arm compensable
under section 85.34(2)(m) or an injury compensable under section
85.34(2)(u). Iowa Code section 85.34(2)(m) states, "The loss of
two-thirds of that part of an arm between the shoulder joint and
the elbow joint shall equal the loss of an arm...." Section
85.34(2)(u) states, "In all cases of permanent partial disability
other than those hereinabove described or referred to in
paragraphs "a" through "t" hereof, the compensation shall be paid
during the number of weeks in relation to five hundred weeks as
the disability bears to the body of the injured employee as a
whole."
A recent case dealing with this issue is Lauhoff Grain v.
McIntosh, 395 N.W.2d 834 (Iowa 1986). In that decision the
supreme court stated "We conclude that Iowa Code section
85.34(2)(o) in defining a leg, does not include a hip joint."
That statement from the supreme court is a conclusion of law
which creates a binding legal precedent that applies to every
pertinent case. It is not a mere affirmance of a finding of fact
made in reliance upon the substantial evidence rule. Logic
indicates that in code section 85.34(2)(m), the word "arm" does
not include a shoulder joint.
An elementary understanding of terminology and anatomy is
critical. The rotator cuff is an anatomical structure which is
part of the structures which connect the arm to the shoulder
girdle. It is the socket portion of the shoulder joint which is
a ball and socket type of joint. The head of the humerus is the
ball portion of the joint. The acromion is a part of the bone
known as the scapula or sometimes commonly referred to as the
shoulder blade. The clavicle is a bone that links the sternum to
the scapula. It is sometimes referred to as the collarbone.
The American Heritage Dictionary, 2d College Ed., defines
"arm" as "an upper limb of the human body connecting the hand and
wrist to the shoulder." In common usage, the term "arm" means
the portion of the human body which is composed of the upper arm
(humerus) and forearm (radius and ulna). In common usage it
sometimes includes the hand and wrist. No authority has been
found in any dictionary, treatise or from common usage which
includes the clavicle or scapula as part of the arm. For
purposes of section 85.34(2)(m) "arm" has its common meaning,
namely, the upper limb which connects the wrist to the shoulder.
The word "arm" does not include the shoulder.
Page 4
In medical terminology, as used by the medical profession,
the term "arm" means "the segment of the superior limb between
the shoulder and the elbow." Stedman's Medical Dictionary, 24th
ed., p. 109. That reference goes on to recognize that the term
"arm" is inaptly used by the general population to mean the whole
superior limb.
A great deal of the confusion dealing with shoulder and hip
injuries arises from use of the medical terminology "upper
extremity" and "lower extremity." Some individuals tend to use
those terms interchangeably with the terms "arm" and "leg" which
appear in the statute. Those terms are not synonymous and using
them interchangeably creates confusion, errors and incorrect
results. The term "upper extremity" has a precise meaning. In
Gray's Anatomy, copyright 1974, 32d printing, at page 134, upper
extremity is defined, "The bones of the upper extremity consist
of those of the shoulder girdle, the arm, the forearm, and the
hand. The term "shoulder girdle" is also defined. "The shoulder
girdle consists of two bones, the clavicle and the scapula." On
that page and the following pages, the extremities, their
function and other basic anatomical facts are described. (Some
older, obsolete versions of Gray's use the terms "arm" and "upper
extremity" interchangeably but current versions make a
distinction.)
The term "upper extremity" is used in the Guides to
Evaluation of Permanent Impairment, 3d ed. (revised), published
by the American Medical Association. The Guides are commonly
used to obtain predictable impairment ratings for specified
medical conditions. The Guides provide impairment ratings of
"extremities." The Guides do not provide impairment ratings for
"arms" and "legs." It is for this reason that in Lauhoff the
supreme court stated, "The AMA guide relied on is of doubtful
authority in this case, in any event, because it includes the hip
as part of the `lower extremity' a term which is not found in our
statutory schedule." (pp. 839 & 840) Abnormal motion of the
shoulder is rated at pages 34-38 of the Guides as impairment of
the "upper extremity." The term "shoulder" is defined in
Stedman's Medical Dictionary, 24th Edition at page 1282 as "the
lateral portion of the scapular region, where the scapula joins
with the clavicle and humerus and is covered by the rounded mass
of the deltoid muscle." It is therefore clear that the term
"upper extremity" includes not only the hand and the arm (in its
common usage) but it also includes the shoulder.
When a physician uses the terms "body as a whole" or "whole
person," it means the trunk of the body, exclusive of the
extremities. It does not include the hips or shoulders since
they are parts of the lower and upper extremities.
The term "impairment" is a medical terms that is not found
in the statute. Its frequent, incorrect use is also responsible
for confusion surrounding this issue. Stedman's at page 696
defines it as "weakening, damage or deterioration; e.g, as a
result of injury or disease." The key portion of the definition
is the word "damage." If a part of the body has not been damaged
it is not possible for it to be impaired. The ability to make
full use of an undamaged part of the body can be lost if its
function is dependent upon some other part of the body which has
Page 5
been damaged. When such a situation occurs, it is the damaged
part that is impaired, not the undamaged part.
The term "impairment of the upper extremity" may properly be
used by the medical profession to define an injury which, for
workers' compensation purposes, is limited to the hand, is
limited to the arm or which exists only in the shoulder.
Impairment of many parts of the body can be converted under the
Guides to an equivalent impairment of other parts or of the
whole person. A doctor's choice of terminology or choice of
converting or not converting has no bearing upon the ultimate
determination of where the disability and impairment is actually
located. The fact that a physician rates impairment as being of
the "upper extremity" does not indicate whether or not it is
limited to the arm or hand.
More than 40 years ago the Iowa Supreme Court dealt with a
case in which the employee had suffered a fracture of the distal
end of the collarbone (clavicle) where it joins the shoulder
blade. In medical terminology, those structures are the distal
end of the clavicle and the acromion. In that case, the employer
asserted that the disability should be compensated as a scheduled
disability of the arm. In rejecting that argument the Iowa
Supreme Court stated, "Moreover it assumes an injury to the
shoulder is an injury to an arm. This assumption is unwarranted.
Subsection 13 [the current equivalent of section 85.34(2)(m)]
does not apply to a shoulder injury, nor is such an injury
scheduled in any other subsection...." emphasis added. Alm v.
Morris Barick Cattle Co., 240 Iowa 1174, 1177 38 N.W.2d 161
(1949).
That case cites Dailey v. Pooley Lumber Co., 233 Iowa 758,
10 N.W.2d 569 (1943). Dailey was a case in which the employee
had suffered a fracture of the femur. It did not heal properly
(an apparently common occurrence), and the result was absorption
or atrophy changes in the acetabulum (hip socket) although not
marked. There also resulted tilting of the pelvis and a
compensatory curvature of the spine. The employer in that case
had unsuccessfully argued, "Even though the injury be to a
scheduled member we readily concede that if as a result of such
injury some other part of the body is affected so as to create a
disability separate and distinct from the usual, ordinary and
natural results of the injury to the scheduled member,
compensation may be awarded in addition to that provided in the
schedule. Conversely we contend that even should the situs of
the injury be without the schedule, the workman nevertheless is
limited by the provisions of the schedule when the disability and
incapacity flowing from the injury are manifested in and confined
to the schedule member."
The Iowa Supreme Court rejected that argument stating,
"Support for their argument is found in some of the cases they
cite from other jurisdictions, but we find ourselves unable to
agree with the doctrine of these decisions..." Dailey, 233 Iowa
page 764. The court went on to explain how the schedule
operates, in particular, that an injury to a scheduled member may
in fact cause the person to be permanently totally disabled and
then states, "Such injury, though causing permanent total
Page 6
disability, is arbitrarily compensable according to the schedule.
But where there is injury to some scheduled member, and also to
parts of the body not included in the schedule, the resultant
`permanent total disability' if established, is compensable
under Code section 1395" [The counterpart of current section
85.34(3)]. emphasis added. The court goes on to state, "It is
our conclusion appellee's injury is not within the schedules of
Code section 1396 because the actual physical injury extended
beyond and outside the scheduled area." 233 Iowa page 765.
emphasis added.
The Iowa Supreme Court recently again addressed the issue of
scheduled versus nonscheduled injuries in the cases Mortimer v.
Fruehauf Corporation, 502 N.W.2d 12 (Iowa 1993) and Lauhoff
Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986). Mortimer clearly
states that the schedule is arbitrary and is to be used only when
no other option is available. In Lauhauff the supreme court
relied heavily upon the medical reference Gray's Anatomy. The
court also recognized the distinction between the terminology of
"lower extremity" which is used in the AMA Guides and the "leg"
which is found in the statute. The illustrative portion of the
decision states:
Lauhoff argues that, even if a hip is considered to
be a part of the body as a whole, there can be no
recovery of benefits for industrial disability unless
it is shown that a part of the body other than the leg
is impaired. This, of course, is true. It argues,
however, that, since the function of a hip is to
provide articulation for the leg, impairment of the hip
translates only in impairment of the leg, and is
therefore governed by the leg schedule.
We reject this argument; the impairment of body
functions in this case were in the hip, not the leg,
and we will not consider these functions to be
coextensive merely because the hip function impacts on
that of the leg. To do so would extend the application
of Iowa Code section 85.34(2)(o) beyond its express
terms by applying it to a body member not expressly
included. (emphasis added). The result would be a
rupturing of the conceptual tidiness which is said to
be the very essense of the scheduled-injury approach.
(Lauhoff Grain v. McIntosh, 395 N.W.2d 834, 840 (Iowa
1986)
The most recent case addressing whether an injury should be
compensated by the schedule is Mortimer, 502 N.W.2d 12. In that
case the court confirmed the well established principle that the
workers' compensation statutes are to be construed liberally to
benefit the injured worker and again acknowledged the
arbitrariness (unfairness) of the scheduled injury system. It
would seem to be elementary that injured workers should be
treated as fairly as the statute permits and that any doubt in
construction or application should be resolved in favor of
fairness. Compensating permanent disability industrially based
on loss of earning capacity is inherently more fair than
compensation based on the schedule. In Mortimer this court
Page 7
stated:
A. Compensability under Iowa's workers' compensation
act. Before proceeding to the question at hand, we
think it would be helpful to review the compensation
scheme under Iowa Code chapter 85, Iowa's workers'
compensation act. As a creature of statute, our
workers' compensation law--subject to constitutional
limitations--may provide such provisions and
limitations as the legislature deems necessary. But,
as we noted earlier, this law is for the benefit of the
working person and should be, within reason, liberally
construed.
Functional disability is arrived at by determining
the impairment of the employee's body function. This
disability is limited to the loss of the physiological
capacity of the body or body part. Simbro v. Delong's
Sportswear, 332 N.W.2d 886, 887 (Iowa 1983).
In contrast, industrial disability is arrived at by
determining the loss to the employee's earning capacity
of the body or body part. In this determination
impairment of the body function--that is, functional
disability--is just one factor. Other factors include
the employee's age, education, qualifications,
experience, and the inability of the employee to engage
in employment for which the employee is fitted. All of
these factors are used to measure the extent to which
the injury impairs the employee's ability to earn
wages. Id.
Chapter 85 divides permanent partial disability into
either a scheduled or unscheduled loss. See Iowa Code
85.34(2). Paragraphs (a) through (t) of section
85.34(2) are reserved for scheduled injuries, like a
loss of a foot. Specific weekly benefits are listed.
For example, paragraph (n) provides for weekly
compensation during one hundred fifty weeks for loss of
a foot. Unscheduled injuries are covered in paragraph
(u). Benefits for these are based on the injury to the
body as a whole. See Iowa Code 85.34(2)(u)
("compensation shall be paid during the number of weeks
in relation to five hundred weeks as the disability
bears to the body of the injured employee as a whole").
We have approved the use of functional industrial
methods of determination within appropriate
classifications of section 85.34(2). For example, a
specific scheduled disability is determined by the
functional method; an unscheduled disability is
determined by the industrial method. Simbro, 332
N.W.2d at 887; see also Graves v. Eagle Iron Works, 331
N.W.2d 116, 117-19 (Iowa 1983) (held that an employee
with a permanent partial disability to a leg had a
scheduled disability that required the determination of
functional impairment of his leg without regard to the
industrial disability factors). So a person may suffer
a permanent total disability as a result of some
Page 8
scheduled injury. This may happen because of age, lack
of training, or other condition peculiar to the person.
Yet such an injury is arbitrarily compensable according
to the schedule.
An unscheduled injury can result in permanent total
disability. In these circumstances, the "weekly
compensation is payable during the period of the
employee's disability." See Iowa Code 85.34(3).
....
...Unscheduled injuries are covered in paragraph (u)
of section 85.34(2).... This provision sets no
limitation as to the physical location of the injury
causing the disability.
The only limitation regarding location of the injury
concerns permanent partial disabilities arising from
scheduled injuries. And although such injuries may
cause permanent total disability because of the
claimant's lack of education or experience or physical
strength or ability, the injuries are arbitrarily
compensable according to the schedule. This is so
because the legislature in its wisdom has seen fit to
give the commission no discretion with regard to
scheduled injuries. The legislature did this in order
to make certain the amount of compensation in cases of
specific injuries and to avoid controversies. But
where there is injury to a scheduled member and also to
parts of the body not included in this schedule, there
is no logical reason for such arbitrariness.
It is clearly illustrated in Mortimer that there is no legal
requirement to prove that an injury extends into "the body as a
whole" in order to compensate the injury under section
85.34(2)(u). All that is necessary is to prove that the
permanent physical injury impairs a part of the body which is not
included in the schedule. In this case there is ample evidence
of permanent injury to the shoulder. There is a scarcity of
evidence of any injury to the arm. There is no logical, good
faith way to find that the disability is confined to the arm.
In order to make a correct legal evaluation it is necessary
to look to the anatomical site of the physical injury, impairment
and damage which produces the loss of function. As clearly
mandated by Mortimer and Lauhoff, where the physical damage or
derangement which causes the loss of use or impairment of an arm
is found in the shoulder joint, or elsewhere in the shoulder,
rather than in the arm itself, the disability is not a scheduled
disability of the arm.
In Nazarenus v. Oscar Mayer & Co., II Iowa Industrial
Commissioner Report 281 (App. Dec. 1982), a torn rotator cuff was
found to cause disability to the body as a whole. Anatomically
the clavicle is at least as far into the body as the rotator
cuff.
Two recent appeal decisions issued by this agency deal with
injuries in the acromioclavicular area of the shoulder. Those
Page 9
decisions are Hike v. IBP, inc., file number 764571 (App. Dec.
Oct. 23, 1990); Prewitt v. Firestone Tire and Rubber Co., file
numbers 931128 and 876686 (App. Dec. Aug. 12, 1992). Lauhoff is
a case where the initial trauma and injury was to a scheduled
member, the leg, as evidenced by the fracture of the femur. The
injury was taken into the body by after effects which ran into
the hip joint. Hike, Prewitt and the instant case, all involve
situations where the initial trauma and anatomical injury was not
located in a scheduled member. In all three of these cases, the
initial, primary trauma and injury was to the shoulder girdle, a
situation much like the situation in Alm. In Hike and Prewitt,
as in the instant case, there is no evidence of any significant
injury, anatomical damage, derangement or other problem within
the arm itself. The only problem in any of these three cases is
the impact that the deranged shoulder has upon the ability to use
the arm. In each of these three cases dealing with the shoulder,
namely, this case, Hike and Prewitt, the only possible
explanation in the evidence which could cause loss of full use of
the arm is the internal derangement in the shoulder. Unlike
Lauhoff, none of these agency cases had evidence of injury to
the scheduled member itself. What is clear from Lauhoff,
however, is that if the loss of function of a scheduled member
results from impairment of the function of the joint where the
member attaches to the body and upon which it is dependent for
its function, then the disability is to be evaluated and
compensated industrially. It is difficult to reconcile Hike and
Prewitt with Alm, Dailey, Lauhoff and Mortimer. It is likewise
difficult to reconcile Hike and Prewitt with prior agency
precedents such as Nazarenus v. Oscar Mayer & Co., II Iowa
Industrial Commissioner Report 281 (App. Dec. 1982) and the
recent decision Auten v. Celotex Corp., file number 873898 (App.
Dec. May 22, 1993). It is noted that Hike and Prewitt were taken
to judicial review in the district court, reversed and remanded
for being inconsistent with Lauhoff.
It is concluded that the precedents set by the Iowa Supreme
Court are controlling. It is therefore concluded that since the
use of claimant's arms are limited only as a result of the
impairment of the function of her shoulders, and not from any
damage or impairment of the arms, that the compensation should be
determined in accordance with section 85.34(2)(u). It is an
injury to the body as a whole, not a scheduled injury.
Since claimant has an impairment to the body as a whole, an
industrial disability has been sustained. Industrial disability
was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258
N.W.2d 899 (1935) as follows: "It is therefore plain that the
legislature intended the term `disability' to mean `industrial
disability' or loss of earning capacity and not a mere
`functional disability' to be computed in the terms of
percentages of the total physical and mental ability of a normal
man."
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to the
injured employee's age, education, qualifications, experience,
motivation, loss of earnings, severity and situs of the injury,
work restrictions, inability to engage in employment for which
Page 10
the employee is fitted and the employer's offer of work or
failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa
1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288
N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa
285, 110 N.W.2d 660 (1961).
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.
Marie's current effort at obtaining education in the
clerical field is certainly prudent. Were it not for her efforts
to obtain re-employment and enhance her employability, her
prospects for obtaining any meaningful replacement employment
would be quite bleak. The forecast and projections expressed in
the Corvel report of July 2, 1993 (ex. 5, pp. 13-16) are
questionable to come extent. It is noted that of those jobs
listed, those entitled housekeeper, duplicating machine operator,
library assistant and short order cook might exceed the
restrictions recommended by Dr. Misol. The three clerk jobs
could likewise involve lifting which exceeds Dr. Misol's
restrictions. Many articles in department stores exceed 20
pounds in weight and must be lifted and bagged by the cashier or
sales clerk. Further, the labor market implications portion of
the report speaks of the "number of employment opportunities in
the area of sales, clerical and service..." as showing growth.
It is well recognized that those areas are certainly experiencing
growth but those also are areas where a very substantial portion
of the growth is for part-time jobs. Marie has lost the ability
to perform manufacturing jobs. Her lack of success at obtaining
replacement employment since the DOT Drug job ended, despite the
assistance of a vocational consultant, illustrates the difficulty
Marie is likely to have in obtaining replacement employment which
provides her a level of annual earnings comparable to that which
she experienced while she was employed by Reames. The report
from Corvel does not address the likelihood of obtaining
full-time employment. It does not identify how many of the jobs
openings that it refers to were part-time, rather than 40-hour
per week jobs. It does not address how many of the 40-hour per
week jobs fall within Marie's physical capabilities. Where it
states "positions mentioned earlier would be slightly below this
mark ($200-$250 weekly)." It apparently is assuming 40 hours of
Page 11
work per week rather than part-time employment. It is unknown
whether claimant will be able to successfully complete that
training. Generally speaking, jobs in the sales, clerical and
service industries do not pay as well as jobs in manufacturing.
Marie has lost the ability to hold most manufacturing jobs. The
mere fact that this injury has required Marie to leave the
manufacturing field indicates that she has experienced a
considerable loss of earning capacity.
Page 12
When all the material factors of industrial disability are
considered, it is determined that Marie Cluney has experienced a
40 percent permanent partial disability as a result of her March
22, 1990 injury. This entitles her to receive 200 weeks of
permanent partial disability compensation under the provisions of
Code section 85.34(2)(u).
As stipulated, defendants are liable to pay healing period
compensation from October 20, 1992 through March 3, 1993, a span
of 19 3/7 weeks.
ORDER
IT IS THEREFORE ORDERED that defendants pay claimant
nineteen and three-sevenths (19 3/7) weeks of compensation for
healing period at the rate of one hundred sixty-one and 52/100
dollars ($161.52) per week payable commencing October 20, 1992.
It is further ordered that defendants pay Marie Cluney two
hundred (200) weeks of compensation for permanent partial
disability at the stipulated rate of one hundred sixty-one and
52/100 dollars ($161.52) per week payable commencing March 4,
1993.
Defendants shall receive credit for the weekly compensation
previously paid. Any accrued, past due amounts shall be paid in
a lump sum together with interest pursuant to section 85.30.
It is further ordered that the costs of this action are
assessed against defendants.
It is further ordered that defendants file claim activity
reports as requested by this agency.
Signed and filed this ____ day of December, 1993.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. David Drake
Attorney at Law
West Towers Office Complex
STE 500
1200 35th St
West Des Moines, Iowa 50265
Mr. Thomas M Plaza
Attorney at Law
701 Pierce St STE 300
PO Box 3086
Sioux City, Iowa 51102-3086
1803.1
Filed December 3, 1993
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MARIE CLUNEY,
Claimant,
vs.
File No. 945696
REAMES FOODS,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
KEMPER GROUP,
Insurance Carrier,
Defendants.
___________________________________________________________
1803.1
Claimant with bilateral shoulder impingement syndrome held
to have an unscheduled injury. She was awarded 40 percent
permanent partial disability.