BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
E. JEANNE ZENTNER, :
:
Claimant, :
:
vs. :
: File Nos. 946036/946037
ALGONA COMMUNITY SCHOOL :
DISTRICT, :
: R E M A N D
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
This case is on remand from the Iowa District Court for
Kossuth County. The defendants, employer and its insurance
carrier, requested a briefing schedule and an opportunity
for oral argument. Claimant resisted defendants' request.
The issues on remand were raised in the original appeal of
the proposed decision of the deputy industrial commissioner.
Those issues were previously discussed in the parties'
briefs and no further briefs are necessary.
ISSUES
The issues on remand are:
Whether the testimony of Dr. Sim is the basis of a finding
that the claimant suffered a cumulative injury; and
When the employee, in the exercise of reasonable diligence,
should have discovered the nature, seriousness and probable
compensable character of her injury and whether the two year
statute of limitation applies in this case.
FINDINGS OF FACT
The findings of fact in the appeal decision filed July 23,
1992 are incorporated by reference. The following
additional findings of fact are made.
An office note from the Park Clinic dated April 12, 1988
states:
Mrs. Zentner comes in today. Three weeks after her
accident, she was just totally disabled. She said she had
to put her foot up in the air. She was teaching but
couldn't do anything else. She couldn't do her painting,
had trouble driving. She just had a miserable time. She
developed quite a bit of bruising. Today everything appears
to be doing quite well. I think she is back to her baseline
Page 2
state. I don't think she sustained any permanent
impairment. She does have some small capillaries in the
back of her thigh but these don't look like there is a
significant problem with them either. Will recheck her on a
prn basis.
(Joint Exhibit 1, page 3)
An office note by Franklin H. Sim, M.D., dated March 28,
1990 states in part: "The patient has rather marked pain,
disability, swelling and inflammation related to DJD. ...
She has symptoms with flexion/extension activities. She is
unable to do stairs, except for one at a time." (Jt Ex. 1,
p. 5)
In a letter dated April 19, 1990 Dr. Sim wrote:
She is a 65-year-old teacher who complained of severe right
knee pain. This is worse with stairs and with standing.
She also noted a clicking and grinding sensation. In
February 1988 she slipped on the floor and fell with her
knee in a hyperextended position. She developed posterior
knee pain exacerbated by weight bearing. Her symptoms were
gradually improving, but in November 1988 she had flareup of
the symptoms associated with increased activities. She has
had persistent symptoms since last fall with a continued
fusion.
When I saw her she had rather marked pain, disability,
swelling, and inflammation related to degenerative joint
disease. ... She has symptoms worse with flexion and
extension activities such as stairs. ...
....The future for this knee is not good what with the
severe degenerative changes, particularly medially.
(Jt Ex. 1, p. 13)
Page 3
In a letter dated April 1, 1991 Dr. Sim wrote:
Our records indicate that she first injured her right
knee in February 1988 when she slipped on the floor and fell
down with her knee in the hyperextended position. Following
this, she began to have posterior knee pain exacerbated by
weight bearing. Our records indicate that she told us that
her symptoms gradually subsided, and in November 1988 after
helping her mother move to a different home, she had a
flareup of her symptoms....
On clinical examination which was confirmed by
arthroscopy, she does have significant degenerative joint
disease in all three compartments of her knee. I don't
think the initial injury that she described caused the
arthritis, but I do feel that her work-related activities
would certainly aggravate it....
....Since the degenerative joint disease is a progressive
condition, I expect with further wear that she will require
further treatment in the future such as total knee
arthroplasty.
(Claimant's Ex. A, p. 5)
CONCLUSIONS OF LAW
The first issue to be resolved is whether the medical
evidence of Dr. Sim is the basis of a finding that claimant
suffered a cumulative injury.
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. App. P. 14(f).
A personal injury contemplated by the workers'
compensation law means an injury, the impairment of health
or a disease resulting from an injury which comes about, not
through the natural building up and tearing down of the
human body, but because of trauma. The injury must be
something which acts extraneously to the natural processes
of nature and thereby impairs the health, interrupts or
otherwise destroys or damages a part or all of the body.
Although many injuries have a traumatic onset, there is no
requirement for a special incident or an unusual occurrence.
Injuries which result from cumulative trauma are
compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d
368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa
1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219,
38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries,
Inc., 218 Iowa 724, 254 N.W. 35 (1934). An occupational
disease covered by chapter 85A is specifically excluded from
the definition of personal injury. Iowa Code section
85.61(5); Iowa Code section 85A.8.
It is clear that Dr. Sim thought that this 65 year old
claimant had significant degenerative joint disease. It was
also his opinion that the initial injury, the slip and fall,
did not cause claimant's arthritis. He also stated that the
degenerative joint disease was a progressive condition.
Nothing in Dr. Sim's records indicates that the physical
activity by claimant (stairs and standing) which may have
Page 4
worsened claimant's symptoms were limited to work-related
activities. Those same activities are day to day type
activities and may well have been involved in November 1988
when claimant helped her mother move.
Claimant has not proved she suffered a cumulative
work-related injury. Not only has claimant not met her
burden of proof, but the evidence in this case demonstrates
that claimant's progressive condition was degenerative joint
disease which resulted from the natural tearing down of
claimant's body. This disease was not caused by her initial
injury. While Dr. Sim thought that claimant's work activity
may aggravate claimant's arthritis, he clearly did not say
that the work activity caused the arthritis. Furthermore,
because Dr. Sim recognized that the degenerative joint
disease is a progressive condition he did not attribute
claimant's condition to her work.
The second issue to be resolved is when the employee,
in the exercise of reasonable diligence, should have
discovered the nature, seriousness and probable compensable
character of her injury and whether the two year statute of
limitation applies in this case.
An original proceeding for benefits must be commenced
within two years from the date of the occurrence of the
injury for which benefits are claimed or within three years
from the date of the last payment of weekly compensation
benefits if weekly compensation benefits have been paid
under Iowa Code section 86.13. Iowa Code section 85.26(1).
A proceeding in review-reopening must be commenced within
three years from the date of the last payment of weekly
benefits under either an award for payments or an agreement
for settlement. Iowa Code section 85.26(2). The "discovery
rule" may extend the time for filing a claim where weekly
benefits have not yet been paid. The rule does not extend
the time for filing a claim where benefits have been paid.
Orr v. Lewis Cent. School Dist., 298 N.W.2d 256 (Iowa
1980). Under the rule, the time during which a proceeding
may be commenced does not begin to run until the claimant,
as a reasonable person, should recognize the nature,
seriousness and probable compensable character of the
condition. The reasonableness of claimant's conduct is to
be judged in light of the claimant's education and
intelligence. Claimant must know enough about the condition
to realize that it is both serious and work connected. Orr,
298 N.W.2d at 261; Robinson v. Dep't of Transp., 296 N.W.2d
809 (Iowa 1980).
Failure to timely commence an action under the
limitations statute is an affirmative defense which
defendants must prove by a preponderance of the evidence.
DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 (1940).
In Venga v. John Deere Component Works, 498 N.W.2d 422 (Iowa
App. 1993), the court held that for purposes of the notice
requirement of Iowa Code section 85.23, the employee must
realize an injury will have an impact on employment.
In this case claimant had a traumatic injury when she
Page 5
slipped and fell in the school. There was little dispute
the injury occurred while claimant was at work. She sought
immediate medical attention. The notes from the Park Clinic
dated April 12, 1988 clearly indicate that claimant thought
her injury was serious. Assuming for the sake of this
decision, that the discovery rule is applicable, claimant as
a reasonable person should have recognized the nature,
seriousness and probable compensable character of the injury
when the injury occurred in February 1988. Claimant clearly
recognized the nature, seriousness and probable compensable
nature of her injury at or before the time she reported to
the Park Clinic information necessary to make the note dated
April 12, 1988. That information also clearly shows that
the claimant realized the injury would have an impact on her
employment. This conclusion is supported by testimony of
claimant's witnesses about claimant's condition following
the slip and fall.
While claimant may not have known the exact medical nature
of her injury until January 1990 when Dr. Crane told her
that she had ligament damage which would require surgery,
she certainly knew in February 1988 that she had injured her
knee and that the injury was serious.
Claimant brought her claim on August 3, 1990. Claimant's
claim is barred by the two year statute of limitations in
Iowa Code section 85.26(1).
ORDER
THEREFORE, it is ordered:
That claimant take nothing from these proceedings for
an alleged injury on February 28, 1988 (file no. 946036).
That claimant take nothing from these proceedings for
an alleged injury on or about April 10, 1990 (file no.
946037).
That claimant shall pay the costs of this matter
including the transcription of the hearing.
Signed and filed this ____ day of June, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Mark S. Soldat
Attorney at Law
714 E. State St.
Algona, Iowa 50511
Ms. Valerie A. Fandel
Mr. Marvin E. Duckworth
Attorneys at Law
Page 6
2700 Grand Ave., Ste 111
Des Moines, Iowa 50312
1100; 1402.30; 2402
Filed June 30, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
E. JEANNE ZENTNER, :
:
Claimant, :
:
vs. :
: File Nos. 946036/946037
ALGONA COMMUNITY SCHOOL :
DISTRICT, :
: R E M A N D
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
1100; 1402.30
Claimant failed to prove a cumulative injury. Claimant, 65
years old, had degenerative joint disease. Claimant's
traumatic injury did not cause the disease. Claimant's work
activities of standing and walking stairs did not cause the
disease. The disease and its condition were the results of
normal wear and tear on the body.
2402
Claimant's claim was barred by the two year statute of
limitation. Assuming the discovery rule was applicable for
a traumatic event, it was determined that claimant, as a
reasonable person, should have known of the nature,
seriousness and compensable character of the injury at the
time of her injury. She had a slip and fall injury, sought
medical care and restricted her activities at the time of
the injury.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
E. JEANNE ZENTNER, :
:
Claimant, :
:
vs. : File Nos. 946036
: 946037
ALGONA COMMUNITY SCHOOL :
DISTRICT, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
This case came on for hearing on August 5, 1991, in
Fort Dodge, Iowa. This is a proceeding in arbitration
wherein claimant seeks compensation for permanent partial
disability benefits as a result of right leg scheduled
member injuries on February 22, 1988 and April 10, 1990.
The record in the proceedings consist of the testimony of
claimant, Jerry Payne, Harriet Simons, Floyd Thies, Carol
Kenyon, and Harold Pryor; and joint exhibit 1; claimant's
exhibits A and B; and defendants' exhibits 1 through 5.
issues
The issues in both cases for resolution are:
1. Whether claimant's injuries arose out of and in the
course of her employment;
2. Whether there is any causal connection to
claimant's alleged disability and the respective injuries;
3. The nature and extent of claimant's permanent
disability and entitlement to disability benefits;
4. The rate for any compensation that would be
payable, if any;
5. Claimant's entitlement to 85.27 medical benefits,
causation only;
6. Claimant's entitlement to 86.13 penalty benefits;
and
7. How interest on temporary and permanent disability
benefits is to be computed.
Page 2
Regarding the February 22, 1988 alleged injury, an
additional issue is whether claimant's action was filed
timely, as provided by Iowa Code section 85.26.
The parties initially indicated that credit for certain
medical was an issue with the parties basically disputing
the exact figure. As discussed at the hearing, the parties
did stipulate subsequently as to the exact figure for
credit. Therefore, it is no longer an issue regarding this
decision.
findings of fact
The undersigned having heard the testimony and
considered all the evidence, finds that:
Claimant is a 67-year-old art teacher and artist who
has taught art for twenty years. She began working for
defendant employer in 1971 to the present. She signs yearly
contracts and works most of the year and gets paid twice per
month, except in June she gets checks for three months at
one time. Claimant described her work days and hours. She
is on her feet most of the day. Her classrooms are on the
second floor and requires walking up 23 to 24 steps. There
is no elevator. She sells or rents paintings on the side.
She has a mandatory school physical every three years but
gets one every year. Prior to February 22, 1988, she said
she had no musculoskeletal problems.
She said she maintained her own home and did all the
work except for mowing and shoveling prior to February 22,
1988. She also has her art studio in the basement of her
home which involves climbing or descending 20 steps. She
also indicated she wore high heels two-thirds of the time
prior to February 22, 1988. She related the extent of her
need to walk.
She described her fall on February 22, 1988, while
attending a retirement party or coffee for the
superintendent. The hours were within her normal end of the
day work hours. She indicated the floor had just been waxed
and while walking in the school building to the event, her
right leg shot out in front of her. She explained her
subsequent pain and the location of the injury. She
eventually continued on to the party but left for home
early.
Claimant related her visit to the doctor. She
indicated the primary concern was her right hand but
acknowledged she had bruises on her right thigh.
Claimant said she had no understanding of any bone
damage but her leg did hurt and she could not walk normally
up into August 1988. Going up and down stairs was a
problem. She said she received no medical attention from
April 28, 1988 to December 15, 1989 as to her right leg but
the symptoms flared up again in the fall of 1989.
In November 1989, claimant helped her mother move, but
claimant claims she did not have any leg difficulties while
Page 3
moving her mother. The leg flared up later. Claimant
contends others helped move all the heavy boxes and
furniture. Claimant's leg then began getting worse
gradually after the move and claimant went to the
chiropractor in December 1989 as she thought something was
out of place.
Claimant went to M.W. Crane, M.D., and claimant's right
knee was injected with cortisone. She described the
excruciating pain similar to the February 22, 1988 pain.
Claimant took off work on December 19 and 20, 1988, and
received sick pay. Claimant contends she felt she was going
to get better. She understood her medical bills would be
paid. She indicated no one told her she was not covered by
workers' compensation. The undersigned notes that no one
told her she would be covered by workers' compensation
either.
Claimant went to Mayo Clinic and eventually had right
knee surgery on April 10, 1990. She said the surgery helped
but she cannot go up and down stairs, climb ladders and get
down on her knees and do various household cleaning as she
did before. She described the other things she cannot do or
do as well before her alleged injury. Claimant contends
that between April 12, 1988 and December 15, 1989 (the
latter date she saw Steven A. Mueller, D.C.), she changed
her activities outside of school as to weight bearing
activities.
Claimant explained her experience with Scott B. Neff,
D.O., to whom defendant insurance company sent her in
January 1991. She emphasized the rude and unprofessional
conduct of this doctor. Claimant's friend, Harriet Simons,
went with her. The undersigned believes the rude,
unprofessional, embarrassing, humiliating conduct of Dr.
Neff took place. Mrs. Simons verified it. This conduct is
demeaning to the medical profession and obviously taints the
doctor's effectiveness and the reliability of his opinions.
Likewise, this type of conduct should not taint the issues
herein.
On cross-examination, claimant was asked several
questions regarding events and circumstances within the two
years of the statute of limitations period that would
indicate to the claimant that she may or did have problems
with her knee which may have resulted from her February 22,
1988 fall. Some of these events were: claimant contends
she had trouble during February and August 1988; claimant
had trouble dressing in August 1988 and never fully
recovered by August 1988; claimant couldn't walk without a
limp; December 9, 1989, cortisone injections were done; Dr.
Crane said claimant may need surgery and on February 21,
1990, Dr. Crane discussed surgery again with claimant.
Claimant said she first knew she was not going to get
better around January 1990 and thought she might need
surgery. Claimant was referred to defendants' exhibit 3 in
which she referred to the "stress of moving furniture Boxes
and the work was just too much. Gradually I realized I was
limping."
Page 4
Claimant emphasized that prior to her return to school
in the fall of 1989, she had no idea she would have
permanent impairment.
Jerry Payne, a sciences teacher with defendant employer
for 31 years, has known claimant since 1967 as a teacher and
socially. He related the activities claimant did at school
and at home, including climbing ladders to wash windows and
trim trees. He said he has seen claimant every day since
1986 and two to four nights a week for coffee after school.
He was aware of claimant's fall in February 1988 and
indicated she has not been the same since. He said claimant
has had increased difficulty after school started in 1989.
He indicated she does not do some of the outside activities
she once did. He said it took three days altogether to move
claimant's mother in November 1989 and claimant helped all
three days.
The witness testified that claimant lost sleep and this
wore her down. Although it appears this witness was with
claimant a lot after school, it is hard to believe how he
knew claimant's sleep patterns.
Harriet Simons testified she has known claimant 40
years. She noticed claimant limped after February 22, 1988,
and not before. She went with claimant to Dr. Neff's office
and related his unprofessional conduct. She verified
claimant's accounting of the doctor visit.
Floyd Thies has been a school counselor for defendant
employer for 24 years. He has known claimant since 1986.
Prior to February 22, 1988, claimant was very energetic and
had no problem walking. He saw claimant every school day.
He said he observed an improvement in claimant from February
1988 to the fall of 1989. After September 1989, he noticed
some deterioration. It appears to the undersigned that this
person knew nothing of claimant helping move her mother.
Carol Kenyon has worked for defendant employer 28
years. She is an accountant and works in the payroll and
with the attendance records. She is aware of claimant's
fall in February 1988. She said a first report of injury
was sent to claimant and she approved it (Defendants'
Exhibit 2, page 5). The employer also sent one signed by
the employer representative (Def. Ex. 2, p. 7) with the same
information as defendants' exhibit 2, page 5. She said
claimant then filed another first report in March 1990 and
referred to a May 1988 injury. The employer would not sign
this because it was not work related. It appears to the
undersigned that this report involved a February 22, 1988
incident and not a new incident in May 1988. Ms. Kenyon
went over the claimant's attendance records and claimant
missed approximately four days between February 22, 1988 and
April 10, 1990, and none were claimed missed because of
injury except for a February 23, 1988 date in which claimant
missed one-half day to go to the doctor due to February 22,
1988 fall. She further testified as to the time claimant
missed after April 10, 1990.
Page 5
Harold Pryor, the superintendent of the school district
of defendant employer, testified as to claimant's salary
during various school years.
Defendants' exhibit 1 reflects Dr. Neff's opinion. He
could not for sure causally connect claimant's fall and her
meniscus tear. He said claimant's knee arthritis was not
caused by her fall. Claimant has had longstanding
preexisting degenerative arthritis in the knee in his
opinion. His other comments are set out in said exhibit and
in light of this decision setting out more detail is not
necessary.
There is no question that an incident at work occurred
on February 22, 1988. The undersigned believes the greater
weight of evidence supports the fact that claimant incurred
an injury that arose out of and in the course of her
employment on February 22, 1988. Claimant was working at
her job with defendant employer and attended a function not
only within her work hours but that it would be expected she
would attend the reception at the end of the day for the
school official. Therefore, the undersigned finds that an
injury arose out of and in the course of claimant's
employment on February 22, 1988.
Defendants raise the defense that the statute of
limitations has run under the provision of Iowa Code section
85.26. There is no question that claimant's petition was
filed over 29 months from the date of the February 22, 1988
incident at work. Claimant contends that the statute had
not run based on the premise that the claimant had not
discovered the nature, seriousness and probable compensable
character of the injury causing her disability.
The greater weight of evidence shows that claimant was
aware of her injury and was having problems resulting from
her February 22, 1988 fall. It appears that claimant was
getting much better up until the fall of 1989 when she
indicates her condition was deteriorating again. She
relates to the fact that school was starting and she was
performing more activities in connection with her job, those
activities mainly being on her feet several hours a day,
walking and carrying certain art supplies. Claimant related
that she was active in maintaining her home and had a studio
in her basement. She also tried to give the impression that
after school ends in June, her activities substantially
lessen. Taking the record as a whole and listening to this
individual's apparent desire to stay active, the undersigned
does not believe that her activities slowed down to the
extent that she relates. It would appear that claimant
continued to be very active on her feet and in her work in
certain additional replacement activities when she was not
at school during the regular school year.
Claimant seemed to downplay the moving of her mother
over a three day period in November 1989. Obviously, she
does not hide the fact as it is evident but seem to think
there were no consequences resulting from this move.
Claimant related how stressful the heavy work was in moving
(Def. Ex. 3, p. 2). It appears that it was after the
Page 6
November 1989 move of her mother that things began to
substantially deteriorate and approximately five months
thereafter she had surgery. Claimant had longstanding
preexisting degenerative arthritis in the knee according to
Dr. Neff (Def. Ex. 1) and confirmed by Dr. Sim's operative
report. There was a degenerative meniscus tear as well as
arthritic disease. The undersigned believes that there was
an intervening event, namely, the moving of her mother that
could have been a substantial factor in the deterioration of
claimant's condition as it appears she was improving, at
least up to September 1989. The undersigned believes that
the real deterioration began after the November 1989 move of
her mother.
The evidence shows several instances in which claimant
should have known the nature and consequences of her fall.
Claimant testified that as of January 1990, she believed she
would need surgery. The evidence also shows that a doctor
indicated a possibility of surgery within the two year
period and reaffirmed the day before the two year period
from the fall elapsed.
Claimant contends she did not know how serious her
injury was. If the statute of limitations had not run with
the facts we have in this case, then you would have the
extension of the statute of limitations in a overwhelming
number of cases which would make Iowa Code section 85.26
meaningless. Often, no one knows the seriousness of an
injury until there is surgery. Claimant contends in the
case at bar that she did not know the seriousness of her
February 22, 1988 fall until she had the April 10, 1990
surgery, at which time she claims another injury.
Additionally, claimant contends she did not know the
probable compensable character of her injury. The
overwhelming evidence indicates that claimant had to have
known that her problems she was experiencing within the two
years of her February 22, 1988 fall were because of this
fall. Claimant is an educated individual. The employee
signed a first report in addition to the employer filling
one out and signing it. This was done by claimant. She
later filed another first report referring to a May 1988
injury which the undersigned earlier had indicated appears
to have been the February 22, 1988 fall for which she was
filing another first report in May 1990. It is confusing as
to why she did that other than to confuse the record.
The undersigned finds that claimant was aware of the
nature of her February 22, 1988 fall and that there were
consequences flowing therefrom and if she did not know, she
should have known. The undersigned also finds that claimant
knew or should have known the probable compensable nature of
her February 22, 1988 fall and injury and that claimant made
a mistake of law and not a mistake of fact. Claimant's
failure to recognize the applicability of workers'
compensation law to her fall and injury on February 22, 1988
was mistake of law and not a mistake of fact. The discovery
rule looks to the point in time where claimant in view of
her education and intelligence should have recognized that
the injury was both serious and work related. The discovery
rules does not contemplate a determination of when claimant
Page 7
recognizes her available legal remedies. The undersigned
believes that if, in fact, the discovery was applicable in
the case herein, then we would have a flood of cases in
which a person had surgery in excess of two years after an
event and claimed that they did not discover the seriousness
or probable consequences of their injury until they had the
surgery. One could see, particularly in back cases
involving vertebrae that a scheme could be developed which
would make the statute of limitations under 85.26 for the
most part meaningless in a good many workers' compensation
cases.
It is undisputed unless the discovery rule is
applicable herein, that claimant's action involving a
February 22, 1988 fall was, in fact, filed contrary to Iowa
Code section 85.26. Therefore, the undersigned finds that
claimant did not file her action within the required time
limit of the statute of limitations section 85.26 of the
Code of Iowa. By the greater weight of evidence the
defendants have sustained their defense in this respect.
The resolution of this last issue disposes of this case
and there would not necessary be any need to proceed further
with any other issues regarding claimant's alleged February
22, 1988 injury. Claimant takes nothing from this alleged
February 22, 1988 injury.
Regarding the April 10, 1990 alleged cumulative injury,
it appears to the undersigned that this date was picked
because claimant had surgery on that date and that this
would help support claimant's contention regarding her
February 22, 1988 alleged injury, and as a safeguard provide
a forum for supplemental or additional recovery for a second
injury in case claimant's contention failed in the February
22, 1988 injury.
From the facts of this case, it would appear that had
there been a timely filed action for a February 22, 1988
injury,the events that occurred on April 10, 1990 and
thereafter would have brought about an action for
review-reopening, the basis for review-reopening being that
there was additional medical and time off and impairment not
anticipated or known as a result of the February 22, 1988
injury.
There can be no review-reopening procedure unless there
was a prior decision, memorandum of agreement, or payments
made. The claimant has failed to timely proceed regarding
the February 22, 1988 injury. There can be no consideration
from the review-reopening standpoint regarding an April 10,
1990 alleged injury or an untimely filed February 22, 1988
injury.
Claimant contends that her continued activity over the
years resulted in a cumulative injury on April 10, 1990.
The undersigned finds that there was not a new injury,
cumulative or otherwise, on April 10, 1990, but that the
surgery was a consequence that arose out claimant's February
22, 1988 fall, or was the result of an intervening event,
namely, claimant moving her mother in November 1989, at
Page 8
which time claimant's right knee began deteriorating to such
an extent that surgery was needed in April 1990. Claimant
is 67 years old and it is obvious the effects of her
activity, including moving her mother, could have been a
substantial intervening cause that resulted in her April
1990 surgery or without which intervening cause, the April
1990 surgery would not have been necessary. The medical
evidence also indicates the degenerative arthritic disease
claimant has and at this point in time, particularly after
claimant moved her mother and the deterioration began, that
that also could be a substantial cause of claimant's
problems.
The undersigned finds that claimant failed to prove she
incurred a cumulative injury on April 10, 1990, that arose
out of and in the course of her employment. Claimant
further failed to prove that her disability which she now
alleges was causally connected to an April 10, 1990 injury.
The above findings regarding the April 10, 1990 alleged
injury makes all the other issues moot and there is no
necessity to further addresss any other issues.
The undersigned finds that claimant takes nothing from
these proceedings regarding an April 10, 1990 alleged
injury.
conclusions of law
Claimant has the burden of proving by a preponderance
of the evidence that she received injuries on February 22,
1988 and April 10, 1990, which arose out of and in the
course of her employment. McDowell v. Town of Clarksville,
241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone
Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
The claimant has the burden of proving by a
preponderance of the evidence that the injuries of February
22, 1988 and April 10, 1990 are causally related to the
disability on which she now bases her claim. Bodish v.
Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl
v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A
possibility is insufficient; a probability is necessary.
Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691,
73 N.W.2d 732 (1955). The question of causal connection is
essentially within the domain of expert testimony. Bradshaw
v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167
(1960).
Iowa adopts the discovery rule which provides that the
period of limitations does not begin to run until the
claimant knows of his or her injury and its probable
compensable nature. Orr v. Lewis Cent. Sch. Dist., 298
N.W.2d 256 (1980).
Iowa Code section 85.26 provides, in part:
An original proceeding for benefits under this
chapter or chapter 85A, 85B, or 86, shall not be
maintained in any contested case unless the
Page 9
proceeding is commenced within two years from the
date of the occurrence of the injury for which
benefits are claimed or, if weekly compensation
benefits are paid under section 86.13, within
three years from the date of the last payment of
weekly compensation benefits.
In regard to the February 22, 1988 alleged injury, it
is concluded that:
Claimant incurred an injury that arose out of and in
the course of her employment on February 22, 1988, but
failed to file an action under the provisions of Iowa Code
section 85.26 within the two year period.
Claimant, in view of her education and intelligence,
knew of or should have recognized that her February 22, 1988
injury was both serious and work related and that she knew
of the nature and probable compensable nature of the injury
causing any disability for which she suffered.
Claimant's failure to file her action under Iowa Code
section 85.26, Code of Iowa, was a mistake of law and not a
mistake of fact.
As to the April 10, 1990 alleged injury, it is
concluded that:
Claimant has failed to prove that she incurred a new or
cumulative separate injury on April 10, 1990 that arose out
of and in the course of her employment.
Claimant failed to show that her alleged disability
allegedly resulting from an April 10, 1990 injury was caused
by the April 10, 1990 injury.
Page 10
order
THEREFORE, it is ordered:
Regarding claimant's alleged February 22, 1988 injury,
claimant takes nothing from this proceeding.
Regarding claimant's alleged April 10, 1990 alleged
injury, claimant takes nothing from this proceeding.
That claimant shall pay the costs of these actions.
Signed and filed this ____ day of August, 1991.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Mark S Soldat
Attorney at Law
714 E State St
Algona IA 50511
Ms Valerie A Fandel
Mr Marvin Duckworth
Attorneys at Law
Terrace Ctr Ste 111
2700 Grand Ave
Des Moines IA 50312
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
E. JEANNE ZENTNER, :
:
Claimant, :
:
vs. :
: File Nos. 946036/946037
ALGONA COMMUNITY SCHOOL :
DISTRICT, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
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 proved an injury that arose out of and
in the course of her employment on February 22, 1988.
Whether claimant is barred from recovery of benefits
from a February 22, 1988 injury, if any, by the statute of
limitations in Iowa Code section 85.26.
Whether claimant has proved she suffered an injury that
arose out of and in the course of her employment on or about
April 10, 1990.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed August 30, 1991 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.
Claimant is a 67-year-old art teacher and artist who
has taught art for twenty years. She began working for
defendant employer in 1971 to the present. She signs yearly
contracts and works most of the year and gets paid twice per
month, except in June she gets checks for three months at
one time. Claimant described her work days and hours. She
is on her feet most of the day. Her classrooms are on the
Page 2
second floor and requires walking up 23 to 24 steps. There
is no elevator. She sells or rents paintings on the side.
She has a mandatory school physical every three years but
gets one every year. Prior to February 22, 1988, she said
she had no musculoskeletal problems.
She said she maintained her own home and did all the
work except for mowing and shoveling prior to February 22,
1988. She also has her art studio in the basement of her
home which involves climbing or descending 20 steps. She
also indicated she wore high heels two-thirds of the time
prior to February 22, 1988. She related the extent of her
need to walk.
She described her fall on February 22, 1988, while
attending a retirement party or coffee for the
superintendent. The hours were within her normal end of the
day work hours. She indicated the floor had just been waxed
and while walking in the school building to the event, her
right leg shot out in front of her. She explained her
subsequent pain and the location of the injury. She
eventually continued on to the party but left for home
early.
Claimant related her visit to the doctor. She
indicated the primary concern was her right hand but
acknowledged she had bruises on her right thigh.
Claimant said she had no understanding of any bone
damage but her leg did hurt and she could not walk normally
up into August 1988. Going up and down stairs was a
problem. She said she received no medical attention from
April 28, 1988 to December 15, 1989 as to her right leg but
the symptoms flared up again in the fall of 1989.
In November 1989, claimant helped her mother move, but
claimant claims she did not have any leg difficulties while
moving her mother. The leg flared up later. Claimant
contends others helped move all the heavy boxes and
furniture. Claimant's leg then began getting gradually
worse after the move and claimant went to the chiropractor
in December 1989 as she thought something was out of place.
Claimant went to M.W. Crane, M.D., and claimant's right
knee was injected with cortisone. She described the
excruciating pain similar to the February 22, 1988 pain.
Claimant took off work on December 19 and 20, 1988, and
received sick pay. Claimant contends she felt she was going
to get better. She understood her medical bills would be
paid. She indicated no one told her she was not covered by
workers' compensation. *****
Claimant went to Mayo Clinic and eventually had right
knee surgery on April 10, 1990. She said the surgery helped
but she cannot go up and down stairs, climb ladders and get
down on her knees and do various household cleaning as she
did before. She described the other things she cannot do or
do as well before her alleged injury. Claimant contends
that between April 12, 1988 and December 15, 1989 (the
latter date she saw Steven A. Mueller, D.C.), she changed
Page 3
her activities outside of school as to weight bearing
activities.
Claimant explained her experience with Scott B. Neff,
D.O., to whom defendant insurance company sent her in
January 1991. ***** Claimant's friend, Harriet Simons, went
with her. *****
On cross-examination, claimant was asked several
questions regarding events and circumstances within the two
years of the statute of limitations period that would
indicate to the claimant that she may or did have problems
with her knee which may have resulted from her February 22,
1988 fall. Some of these events were: claimant contends
she had trouble during February and August 1988; claimant
had trouble dressing in August 1988 and never fully
recovered by August 1988; claimant couldn't walk without a
limp; December 9, 1989, cortisone injections were done; Dr.
Crane said claimant may need surgery and on February 21,
1990, Dr. Crane discussed surgery again with claimant.
Claimant said she first knew she was not going to get
better around January 1990 and thought she might need
surgery. Claimant was referred to defendants' exhibit 3 in
which she referred to the "stress of moving furniture Boxes
and the work was just too much. Gradually I realized I was
limping."
Claimant emphasized that prior to her return to school
in the fall of 1989, she had no idea she would have
permanent impairment.
Jerry Payne, a sciences teacher with defendant employer
for 31 years, has known claimant since 1967 as a teacher and
socially. He related the activities claimant did at school
and at home, including climbing ladders to wash windows and
trim trees. He said he has seen claimant every day since
1986 and two to four nights a week for coffee after school.
He was aware of claimant's fall in February 1988 and
indicated she has not been the same since. He said claimant
has had increased difficulty after school started in 1989.
He indicated she does not do some of the outside activities
she once did. He said it took three days altogether to move
claimant's mother in November 1989 and claimant helped all
three days.
The witness testified that claimant lost sleep and this
wore her down. Although it appears this witness was with
claimant a lot after school, it is hard to believe how he
knew claimant's sleep patterns.
Harriet Simons testified she has known claimant 40
years. She noticed claimant limped after February 22, 1988,
and not before. She went with claimant to Dr. Neff's office
and related his unprofessional conduct. She verified
claimant's accounting of the doctor visit.
Floyd Thies has been a school counselor for defendant
employer for 24 years. He has known claimant since 1986.
Prior to February 22, 1988, claimant was very energetic and
Page 4
had no problem walking. He saw claimant every school day.
He said he observed an improvement in claimant from February
1988 to the fall of 1989. After September 1989, he noticed
some deterioration. *****
Carol Kenyon has worked for defendant employer 28
years. She is an accountant and works in the payroll and
with the attendance records. She is aware of claimant's
fall in February 1988. She said a first report of injury
was sent to claimant and she approved it (Defendants'
Exhibit 2, page 5). The employer also sent one signed by
the employer representative (Def. Ex. 2, p. 7) with the same
information as defendants' exhibit 2, page 5. She said
claimant then filed another first report in March 1990 and
referred to a May 1988 injury. The employer would not sign
this because it was not work related. It appears ***** that
this report involved a February 22, 1988 incident and not a
new incident in May 1988. Ms. Kenyon went over the
claimant's attendance records and claimant missed
approximately four days between February 22, 1988 and April
10, 1990, and none were claimed missed because of injury
except for a February 23, 1988 date in which claimant missed
one-half day to go to the doctor due to February 22, 1988
fall. She further testified as to the time claimant missed
after April 10, 1990.
Harold Pryor, the superintendent of the school district
of defendant employer, testified as to claimant's salary
during various school years.
Defendants' exhibit 1 reflects Dr. Neff's opinion. He
could not for sure causally connect claimant's fall and her
meniscus tear. He said claimant's knee arthritis was not
caused by her fall. Claimant has had longstanding
preexisting degenerative arthritis in the knee in his
opinion. His other comments are set out in said exhibit and
in light of this decision setting out more detail is not
necessary.
There is no question that an incident at work occurred
on February 22, 1988. ***** The greater weight of evidence
supports the fact that claimant incurred an injury that
arose out of and in the course of her employment on February
22, 1988. Claimant was working at her job with defendant em
ployer and attended a function not only within her work
hours but that it would be expected she would attend the
reception at the end of the day for the school official.
Therefore, the undersigned finds that an injury arose out of
and in the course of claimant's employment on February 22,
1988.
*****
The greater weight of evidence shows that claimant was
aware of her injury and was having problems resulting from
her February 22, 1988 fall. It appears that claimant was
getting much better up until the fall of 1989 when she
indicates her condition was deteriorating again. She
relates to the fact that school was starting and she was
performing more activities in connection with her job, those
Page 5
activities mainly being on her feet several hours a day,
walking and carrying certain art supplies. Claimant related
that she was active in maintaining her home and had a studio
in her basement. She also tried to give the impression that
after school ends in June, her activities substantially
lessen. ***** It would appear that claimant continued to be
very active on her feet and in her work in certain
additional replacement activities when she was not at school
during the regular school year.
Claimant seemed to downplay the moving of her mother
over a three day period in November 1989. Obviously, she
does not hide the fact as it is evident but seems to think
there were no consequences resulting from this move.
Claimant related how stressful the heavy work was in moving
(Def. Ex. 3, p. 2). It appears that it was after the
November 1989 move of her mother that things began to
substantially deteriorate and approximately five months
thereafter she had surgery. Claimant had longstanding
preexisting degenerative arthritis in the knee according to
Dr. Neff (Def. Ex. 1) and confirmed by Dr. Sim's operative
report. There was a degenerative meniscus tear as well as
arthritic disease. ***** The moving of her mother that
could have been a substantial factor in the deterioration of
claimant's condition as it appears she was improving, at
least up to September 1989. ***** The real deterioration
began after the November 1989 move of her mother.
*****
CONCLUSIONS OF LAW
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
There is little argument that claimant suffered an
injury on February 22, 1988 that arose out of and in the
course of her employment. The real issue regarding the
February 23, 1988 injury date is whether recovery of
benefits is barred by the statute of limitations.
Claimant filed this action on August 3, 1990.
Claimant's claim would be barred by the provisions of Iowa
Code section 85.26(1) unless the discovery rule is applied.
The discovery rule was discussed in Jones v. Continental
Baking Company, Appeal Decision, September 24, 2991, File
No. 908648 and Origer v. Ley Motor Company, Appeal Decision,
November 18, 1991, File No. 848639.
Under the discovery rule enunciated in Orr v.
Lewis Central School District, 298 N.W.2d 256, 261
Iowa 1980), and Robinson v. Department of
Page 6
Transportation, 296 N.W.2d 809, 812 (Iowa 1980),
the statute of limitations would not start to run
until claimant recognized the nature, seriousness
and probable compensable character of his
injury....
....
Defendants argue on appeal that claimant's
injury is not subject to the discovery rule,
because claimant's condition flows from an
identifiable, traumatic event. Defendants argue
that there should be a distinction between "latent
injuries" and "traumatic injuries with latent
manifestation." Defendants cite LeBeau v. Dimig,
446 N.W.2d 800 (Iowa 1989). LeBeau is a tort
case, dealing with the discovery rule in an
automobile accident case. The plaintiff received
a head injury, which appeared minor at first but
later turned out to be the cause of epilepsy.
However, the statute of limitations had expired by
the time the epileptic condition was discovered.
In LeBeau, the Iowa Supreme Court used the
"traumatic event latent manifestation" analysis.
In the "latent manifestation" case the Court
reasoned, the injured party is entitled to the
discovery rule rather than charging him with facts
which are "unknown and inherently unknowable." In
the "traumatic event" case, however, the injured
party has been injured by a noticeable, traumatic
occurrence, where the injured party realizes both
that he has been injured, and what is responsible
for his injury, even though the full extent of the
harm is not yet known.
The LeBeau court found that allowing the use of
the discoverys recently reviewed LeBeau,
446 N.W.2d 800, and stated: "Because we classified LeBeau's
suit as a traumatic event/latent manifestation case, we
refused to apply the discovery rule." Wilber v.
Owens-Corning Fiberglass Corp., 476 N.W.2d 74, 76 (Iowa
1991).
In this case claimant had a traumatic injury on
February 28, 1988 and the claim which was brought on August
3, 1990 is barred by Iowa Code section 85.26(1).
Even if the discovery rule were to be applied,
claimant's claim would be barred by Iowa Code section
85.26(1). The February 28, 1988 injury was a traumatic
event. Claimant reported it to a supervisor, approved a
first report of injury on February 23, 1988, and sought
medical care at the time of the injury. There was little
dispute the injury occurred while claimant was at work.
Claimant should have recognized the nature, seriousness, and
probable compensable character of her injury in February
1988. Claimant argues in her appeal brief that the three
year statute of limitations in Iowa Code section 85.26(2)
should apply. There is no reliable evidence that claimant
was paid weekly workers' compensation benefits for her
February 22, 1988 injury. Mere payment for "time off" does
not mean that the payments were weekly workers' compensation
benefits. It is also noted that claimant did not miss three
days of work because of this injury and any benefits would
not have been weekly workers' compensation benefits. See
Iowa Code section 85.32. Iowa Code section 85.26(2) is not
applicable. Claimant's claim for the February 22, 1988
injury is barred by Iowa Code section 85.26(1).
The last issue to be resolved is whether claimant
proved she sustained an injury that arose out of and in the
course of her employment on or about April 10, 1990.
A personal injury contemplated by the workers'
compensation law means an injury, the impairment of health
or a disease resulting from an injury which comes about, not
through the natural building up and tearing down of the
human body, but because of trauma. The injury must be
something which acts extraneously to the natural processes
of nature and thereby impairs the health, interrupts or
otherwise destroys or damages a part or all of the body.
Although many injuries have a traumatic onset, there is no
requirement for a special incident or an unusual occurrence.
Injuries which result from cumulative trauma are
compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d
368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa
1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219,
Page 8
38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries,
Inc., 218 Iowa 724, 254 N.W. 35 (1934). An occupational
disease covered by chapter 85A is specifically excluded from
the definition of personal injury. Iowa Code section
85.61(5); Iowa Code section 85A.8.
There is no evidence that claimant sustained a
traumatic injury on or about April 10, 1990. That injury
date was picked because claimant left work because of her
leg condition. That leg condition was possibly the result
of her February 22, 1988 work injury. It is more likely
that the condition was a result of claimant's activity in
moving her mother's household belongings in November 1989 or
a degenerative arthritic condition, or a combination of
these two. Neither Dr. Sim nor Dr. Neff causally related
claimant's knee condition to a cumulative injury.
Claimant's work activities as described in her testimony do
not appear to be the type that would result in a cumulative
injury. Claimant has failed to prove she sustained an
injury, traumatic or cumulative, that arose out of and in
the course of her employment on or about April 10, 1990.
WHEREFORE, the decision of the deputy is affirmed.
ORDER
THEREFORE, it is ordered:
That claimant take nothing from these proceedings for
an alleged injury on February 28, 1988 (file no. 946036).
That claimant take nothing from these proceedings for
an alleged injury on or about April 10, 1990 (file no.
946037).
That claimant shall pay the costs of this matter
including the transcription of the hearing.
Signed and filed this ____ day of July, 1992.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Mark S. Soldat
Attorney at Law
714 E. State St.
Algona, IA 50511
Ms. Valerie A. Fandel
Mr. Marvin E. Duckworth
Attorneys at Law
2700 Grand Ave., Ste 111
Des Moines, IA 50312
Page 9
1100; 1402.30; 2402
Filed July 23, 1992
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
E. JEANNE ZENTNER, :
:
Claimant, :
:
vs. :
: File Nos. 946036/946037
ALGONA COMMUNITY SCHOOL :
DISTRICT, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
1100; 1402.30
Found claimant's April 10, 1990 alleged cumulative injury
did not arise out of and in the course of claimant's
employment. It was not a new injury. Claimant's surgery on
April 10, 1990 was an outgrowth of her untimely filed
petition involving her February 22, 1988 injury.
2402
Found claimant's petition involving her February 22, 1988
work injury was not timely filed contrary to Iowa Code
section 85.26 (statute of limitations). Claimant's alleged
discovery contention not accepted. Discovery rule is not
applicable when there is a traumatic event with latent
manifestation. There was no reliable evidence of payment of
weekly workers' compensation benefits and therefore three
year statute of limitations in Iowa Code section 85.26(2)
did not apply.
2402; 1100
Filed August 30, 1991
Bernard J. O'Malley
before the iowa industrial commissioner
____________________________________________________________
:
E. JEANNE ZENTNER, :
:
Claimant, :
:
vs. : File Nos. 946036
: 946037
ALGONA COMMUNITY SCHOOL :
DISTRICT, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
2402
Found claimant's petition involving her February 22, 1988
work injury was not timely filed contrary to 85.26 (statute
of limitations). Claimant's failure to file was a mistake
of law and not mistake of fact. Claimant's alleged
discovery contention not accepted.
1100
Found claimant's April 10, 1990 alleged cumulative injury
did not arise out of and in the course of claimant's
employment. It was not a new injury. Claimant's surgery on
April 10, 1990 was an outgrowth of her untimely filed
petition involving her February 22, 1988 injury.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
MIGUEL ARTEAGA, :
:
Claimant, :
:
vs. : File Nos. 946045
: 913243
JOHN MORRELL & CO., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
NATIONAL UNION FIRE :
INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
This is a consolidated proceeding in arbitration
brought by Miguel Arteaga, claimant, against John Morrell &
Company, employer, and National Union Fire Insurance
Company, insurance carrier, defendants, for workers' compen
sation benefits as a result of alleged injuries on May 1,
1989 and May 12, 1989. On March 20, 1992, a hearing was
held on claimant's petition and the matter was considered
fully submitted at the close of this hearing.
issues
The hearing assignment order submitted the following
issues for determination in this proceeding:
I. Whether claimant received an injury arising out
of and in the course of employment;
II. The extent of claimant's entitlement to disabil
ity benefits; and,
III. The extent of claimant's entitlement to medical
benefits.
findings of fact
Neither claimant nor defendants appeared for the oral
hearing scheduled at the last prehearing conference for
March 20, 1992. This agency received no notification of any
settlement prior to the hearing. The record was opened but
no evidence was offered. The record was then closed.
conclusions of law
Claimant has the burden of proving by a preponderance
Page 2
of the evidence that claimant received an injury which arose
out of and in the course of employment. The words "out of"
refer to the cause or source of the injury. The words "in
the course of" refer to the time and place and circumstances
of the injury. See Cedar Rapids Community Sch. v. Cady, 278
N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist.,
246 Iowa 402, 68 N.W.2d 63 (1955).
As claimant has the burden of proof, by offering no
evidence he failed to establish a work injury compensable
under Iowa workers' compensation law.
order
1. Claimant's claims are denied and his petitions are
dismissed with prejudice.
2. Claimant shall pay the costs of these actions pur
suant to rule 343 IAC 4.33.
Signed and filed this ____ day of March, 1992.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Sheldon M. Gallner
Attorney at Law
803 3rd Avenue
P O Box 1588
Council Bluffs, Iowa 51502
Mr. Thomas M. Plaza
Ms. Rita C. Grimm
Attorneys at Law
70l Pierce Street
STE 200
P O Box 3086
Sioux City, Iowa 51102
5-1803
Filed March 25, 1992
LARRY P. WALSHIRE
before the iowa industrial commissioner
____________________________________________________________
:
MIGUEL ARTEAGA, :
:
Claimant, :
:
vs. : File Nos. 946045
: 913243
JOHN MORRELL & CO., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
NATIONAL UNION FIRE :
INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803 - Non-precedential
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
DELMER SKEEL,
Claimant,
File No. 946051
KWIK SHOPS, INC.,
A P P E A L
Employer,
D E C I S I O N
and
CNA INSURANCE COMPANIES,
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.
The file in this matter contains a deposition of Arlo B. Brakel,
M.D., taken July 15, 1991. Both parties refer to the deposition
in their appeal briefs. Dr. Brakel's deposition is considered
and is part of the record.
ISSUE
The issue on appeal is:
Whether claimant has proved that he sustained an injury that
arose out of and in the course of his employment with defendant
employer.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed October 3, 1991 are adopted as set forth below.
Segments designated by brackets ([ ]) indicate language that is
in addition to the language of the proposed agency decision.
Claimant, born on September 9, 1932, was 59 years old at the
time of the hearing. He attended school through the eighth
grade, and completed two years of high school through
correspondence courses. He has had no other formal education.
SKEEL V. KWIK SHOPS, INC.
Page 2
Claimant began working for the defendant, or its predecessor in
interest, for approximately ten years until the date of the
alleged injury on March 25, 1989. Claimant has not worked since
this date.
Claimant worked as a night clerk in the convenience store, and his
duties included waiting on customers, stocking the shelves and ice
machine, and cleaning the fountain machine. Claimant stated that
he had to lift items weighing between 25 pounds and 60 pounds.
Claimant was an hourly employee, and earned $5.35 per hour. He has
received several appreciation awards for his work, and has
undergone manager training.
When claimant was 17 years of age, he contracted undulant fever.
The effects of the undulant fever left him with a dropped ankle, a
decrease in muscle tone and loss of balance in his lower
extremities. Claimant is unable to walk without some type of
assistance, and has a severely impaired sense of balance.
At the hearing, claimant described his work-related incident in
the following manner. One day in late January or February,
claimant stated that he fell as he was mopping a newly rewaxed
floor. When he fell, claimant stated he believed he hit his neck
on a lower shelf. Claimant stated that his neck "stung", he rolled
over onto his knees, got up and continued working.
After finishing his shift, claimant proceeded to make an
appointment with Wilkens Chiropractic Clinic in Bettendorf, Iowa.
He received treatment from Dr. Wilkinson on two occasions, and was
then referred to Arlo Brakel, M.D., a microvascular neurosurgeon.
Dr. Brakel's notes reveal the following information:
January-February he went to get out of bed, but he couldn't
feel his legs. He has had pain in his lumbar back area
constant [sic] for 3 years. The things that really concerned
him was that his gait has gotten much worse and he has been
having trouble moving. He also has had numbness and tingling
in his feet with severe leg cramps. He also has had an
increase in falling.... He does complain of dizziness at
which time he states he passes out.
(Joint Exhibit B, page 10).
Claimant was scheduled to undergo a CT of the brain and
cervical x-rays. The results of the CT scan were normal, but
claimant presented with an unusual cervical spine series which
notes retrolisthesis of C3 on C4. Claimant then underwent a
myelogram, and as a result was scheduled for an anterior interbody
fusion. This surgery was performed on April 18, 1989.
SKEEL V. KWIK SHOPS, INC.
Page 3
The hospital records from Mercy Hospital in Davenport, Iowa,
indicate that claimant was experiencing progressive disuse of the
lower extremities and sharp pains in the neck and head region, as
well as intermittent syncopal and near sign syncopal episodes.
Claimant related a lifelong history of spastic paraparesis.
Additionally, claimant stated that he had been having significant
worsening of his gait over a number of weeks prior to the
admission, with numbness and tingling in his feet and severe leg
cramps. Claimant's history noted that he had a number of falls at
which time he states some were precipitated by certain movements
of his neck. (Jt. Ex. C, pp. 17-21).
The surgical notes which described the operation also contained a
patient history:
In the months of January and February of 1989, the patient
found several instances of inability to feel his legs when
attempting to arise out of bed. He had noted a progressive
difficulty with low back pain over a three year period, but
had seen a more rapidly progressive deterioration of his
gait. He had had intermittent trouble moving and had
experienced a progressive syndrome of increasing numbness and
tingling in his feet and cramping of his legs. He had had
episodes of falling which seemed to be more of a collapse
syndrome with a collapse of his legs and syncope when holding
his head in extension.
(Jt. Ex. C, p. 30).
On May 4, 1990, Dr. Brakel, who had been treating claimant
since March of 1989 and who performed the surgery, was of the
following opinion:
He stated that he had a prior history of difficulty with his legs which he felt
was related to an infection as a teenager. He stated that this was undulant
fever. He had been stable for a number of years, but noted that within the year
or two prior to our evaluation walking had become progressively impaired.
Spasticity in his legs was worsening, he specifically noted that when he
extended his neck, or was squatting down under a counter he had sudden loss of
all muscle tone and had fallen to the floor. He denied any loss of
consciousness. He had fallen a number of times at work.
To reiterate, this patient has had cervical instability, perhaps exacerbated by
a number of falls
SKEEL V. KWIK SHOPS, INC.
Page 4
at the work place. This certainly was a predecessor of
injury by his apparent fever but the impingement on his
spinal cord has created further damage.
(Jt. Ex. B, pp. 15-16).
Dr. Brakel concluded that claimant's total impairment
was 50 percent of the body as a whole. (Jt. EX. B, p. 15).
[Dr. Brakel testified in his deposition:
Q. Now, this falling situation, do we know why this
occurred?
A. In part.
Q. Okay. What do we know?
A. That the long-established difficulty of deformity of
his legs on the basis of the original neurologic injury
at age 17 was causing significant compromise of his
gait. The finding of instability in his neck with
transient impingement on the cervical cord suggested
that this condition was adding to his problems more
acutely and perhaps accounted for the progressive
difficulty within the last months to years.
Q. And the cause of the neck problem is something that I
think you said previously that we can~t put our finger
on, or I think you used the term multifaceted.
A. Correct.
Q. Doctor, do you have an opinion to a reasonable degree
of medical probability as to the cause of Mr. Skeel's
neck problems?
A. Yes.
Q. Okay. And what is that opinion?
A. That this was a gradually progressive syndrome with
origins in -- of a degenerative nature, feasibly
punctuated at times by injuries having occurred as a
result of his baseline problem with gait and multiple
falls.
....
SKEEL V. KWIK SHOPS, INC.
Page 5
Q. Did he also -- let me ask you to assume that in the course of his employment
at Xwik Shop he was lifting items in the neighborhood of 40 to 60 pounds.
A. I was not aware of that.
Q. And I think that would consist of slurpy jars and Coca-Cola cases. Do you
have an opinion to a reasonable degree of medical certainty as to whether or
not lifting of items of between 40 and 60 pounds and repetitive squatting,
bending over, stooping, would those be the kinds of activities that would cause
compression of his spinal cord?
A. As a retrospective analysis, given the pathology which was found, those
positions would cause abnormal neck movement, impinging upon the cord, yes.
Q. Well, are you saying -- let me put it this way: Would the -- would those
falls then, would they be a significant factor or an accelerating factor in his
cervical instability?
A. Yes.
Q. And the falls were caused, I take it, from the intermittent compression of
the spinal cord?
A. Our opinion, after finding instability, was that one could not help but
acknowledge pre-existing factors leading to a tendency toward falling. However,
certain aspects of his history such as progressive neurologic deficit suggested
a new factor, and once cervical instability was found with what we felt was
inciting factors, such as accompaniment of near-syncopal episodes precipitating
falls evidently --
....
Q. Doctor, I'm hearing that the syncope, or the fainting episodes, are directly
connected with the impingement of the spinal cord; is that correct?
A. In absence of other evidence we felt so, yes.
Q. So, in other words, the reason that Mr. Skeel fell was because he had a
problem with his neck and impingement on the cord which would cause him to be
faint, he would fall, this might give additional damage to the neck, which
would -- we kind of get a vicious circle; am I stating this correctly?
SKEEL V. KWIK SHOPS, INC.
Page 6
A. That's correct.
Q. Would you expect a person like Mr. Skeel that had the ankle and knee and toe
problems and muscle and balance problems that resulted in frequent falling for
a long number of years to do damage to his neck such as the damage that you
found?
A. It's quite feasible.
....
Q. But you did say that you find really discrete types of falls in the sense
that some falls could have been caused by the childhood disease, whatever it
was, and the other falls could have been caused by the impingement of the
spinal cord, right?
A. At least once we had Dr. Johnson's input that there appeared to have been
another entity as a causation of falling.
Q. And as I understand your testimony, Doctor, the bending and lifting and
stooping as explained to you by Delmer Skeel, together with the assumption I
have asked you to make about the weight of the objects that he was lifting,
caused an impingement of his spinal cord which in turn caused his cervical
instability; is that a fair statement?
A. With high probability, yes.
Q. With high probability?
A. Yes.
Dr. Brakel indicated that claimant's falls were due to a long-established
difficulty of deformity of claimant's legs and instability in his neck with
transient impingement on the cervical cord. At one point in his testimony Dr.
Brakel opined that one cervical problem was multifaceted because it was
degenerative "feasibly" punctured by problems with gait and multiple falls. The
doctor later seems to indicate that it was probable that the impingement of the
spinal cord was caused by bending, lifting and stooping.
Clearly, the proximate cause of claimant's falls were the difficulty of
deformity of his legs and the instability in his neck. Also, clearly the
deformity of claimant's legs was not work-related. The instability in
claimant's neck had several possible origins. These origins were claimant's
degenerative
SKEEL V. KWIK SHOPS, INC.
Page 7
condition, claimant's multiple falls, claimant's gait and
claimant's work activities of bending, lifting and stooping. Only
claimant's work activities of bending, lifting and stooping were
work-related. Given what may be inconsistencies in Dr. Brakel's
opinions and given the variety of possible plausible causes, it
cannot be said that the probable cause of claimant's neck
instability was work-related. Claimant has not proved that the
instability of his neck was work-related. Likewise, claimant has
not proved that his employment was the probable cause of a fall,
if any, at work. Claimant's work was not a substantial
contribution to claimant's fall, if any.
In summary, claimant has not proved that he sustained an
injury that arose out of and in the course of his employment. He
has not proved that a cervical instability was probably work
related. He has not proved that his work was a substantial
contribution to causing him to fall. It is also worth noting that
the patient histories provided by claimant to the various medical
care providers do not substantiate his version of the fall.]
As of the date of the hearing, claimant had not returned to work.
He was receiving Social Security disability benefits. His
physical condition had deteriorated some, as he stated he could
not walk without assistance, but could stand in limited
quantities of time.
CONCLUSIONS OF LAW
Claimant has the burden of proving by a preponderance of the
evidence that he received an injury on or about March 25, 1989
which arose out of and in the course of his employment. McDowell
v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v.
Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
The injury must both arise out of and be in the course of the
employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68
N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa
Report. See also Sister Mary Benedict v. St. Mary's Corp., 255
Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249
Iowa 1147, 91 N.W.2d 555 (1958).
The words ~out of" refer to the cause or source of the injury.
Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
The words "in the course of" refer to the time and place and
circumstances of the injury. McClure v. Union et al. Counties,
188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63
(1955).
SKEEL V. XWIX SHOPS, INC.
Page 8
A determination that an injury "arises out of" the employment
contemplates a causal connection between the conditions under
which the work was performed and the resulting injury; i.e., the
injury followed as a natural incident of the work. Musselman, 261
Iowa 352, 154 N.W.2d 128 (1967); Reddick v. Grand Union Tea Co.,
230 Iowa 108, 296 N.W. 800 (1941).
Claimant's alleged fall or falls are in the category of
idiopathic falls. "To shift the loss in the idiopathic fall cases
to the employment, then it is reasonable to require a showing of
at least some substantial employment contribution to the harm." I
Larson, Workmen's compensation law, 12.14 page 3-369.
WHEREFORE, the decision of the deputy is affirmed.
ORDER
THEREFORE, it is ordered:
That claimant take nothing from these proceedings.
hat claimant shall pay the costs of the appeal including
transcription of the hearing.
That claimant and defendants shall pay their own respective costs
for all other costs.
Signed and filed this 31st day of August, 1992.
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Page 9
COPIES TO:
Mr. Michael J. McCarthy
Attorney at Law
701 Kahl Building
Davenport, Iowa 52801
Mr. Elliott R. McDonald. Jr.
Attorney at Law
P O Box 2746
Davenport, Iowa 52809
1101
Filed August 31, 1992
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
DELMER SKEEL,
Claimant,
vs.
File No. 946051
KWIK SHOPS, INC.,
A P P E A L
Employer,
D E C I S I O N
and
CNA INSURANCE COMPANIES,
Insurance Carrier,
Defendants.
1101
Claimant, who had contracted undulant fever as a teenager and as
a result was left with very weak lower extremities and an
inability to walk unassisted, allegedly fell at work. Claimant
had a history of falls and the falls were attributable to
difficulty of deformity of his legs and impingement on the
cervical cord. The impingement on the cervical cord had a variety
of possible origins, only one of which was work-related. It was
not probable that instability of claimant's neck was caused by
his employment.
Claimant did not prove an injury arising out of and in the course
of his employment.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
DELMAR SKEEL, :
:
Claimant, :
:
vs. :
: File No. 946051
KWIK SHOPS, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
introduction
This is a proceeding in arbitration brought by Delmar
Skeel, claimant, against Kwik Shop, Inc., employer, and CNA
Insurance Companies, insurance carrier. Mr. Skeel has
alleged that he sustained a work-related injury on March 25,
1989.
A hearing was held in Davenport, Iowa on August 22,
1991, and the case was fully submitted at the close of the
hearing. The record consists of the testimony of Delmar
Skeel, Amanda Powell, and Judy Zindel; joint exhibits A-D;
and, claimant's exhibit 1.
issues
The parties submitted the following issues for
determination at the time of the hearing:
1. Whether claimant received an injury on March 25,
1989 which arose out of and in the course of his employment;
2. Whether there is a causal relationship between the
alleged injury and claimant's disability;
3. Whether claimant is entitled to temporary total
disability or healing period benefits, or permanent partial
or permanent total disability benefits;
4. Whether claimant is entitled to medical benefits as
governed by Iowa Code section 85.27.
Defendants have raised the affirmative defense of
whether claimant gave timely notice as provided for under
Iowa Code section 85.23.
Page 2
findings of fact
Claimant, born on September 9, 1932, was 59 years old
at the time of the hearing. He attended school through the
eight grade, and completed two years of high school through
correspondence courses. He has had no other formal
education.
Claimant began working the defendant, or its
predecessor in interest, for approximately ten years until
the date of the alleged injury on March 25, 1989. Claimant
has not worked since this date.
Claimant worked as a night clerk in the convenience
store, and his duties included waiting on customers,
stocking the shelves and ice machine, and cleaning the
fountain machine. Claimant stated that he had to lift items
weighing between 25 pounds and 60 pounds. Claimant was an
hourly employee, and earned $5.35 per hour. He has received
several appreciation awards for his work, and has undergone
manager training.
When claimant was 17 years of age, he contracted
undulant fever. The effects of the undulant fever left him
with a dropped ankle, a decrease in muscle tone and loss of
balance in his lower extremities. Claimant is unable to
walk without some type of assistance, and has a severely
impaired sense of balance.
At the hearing, claimant described his work-related
incident in the following manner. One day in late January
or February, claimant stated that he fell as he was mopping
a newly rewaxed floor. When he fell, claimant stated he
believed he hit his neck on a lower shelf. Claimant stated
that his neck "stung", he rolled over onto his knees, got up
and continued working.
After finishing his shift, claimant proceeded to make
an appointment with Wilkens Chiropractic Clinic in
Bettendorf, Iowa. He received treatment from Dr. Wilkinson
on two occasions, and was then referred to Arlo Brakel,
M.D., a microvasuclar neurosurgeon. Dr. Brackel's notes
reveal the following information:
January-February he went to get out of bed, but he
couldn't feel his legs. He has had pain in his
lumbar back area constant [sic] for 3 years. The
things that really concerned him was that his gait
has gotten much worse and he has been having
trouble moving. He also has had numbness and
tingling in his feet with severe leg cramps. He
also has had an increase in falling. . . . He does
complain of dizziness at which time he states he
passes out.
(Joint Exhibit B, page 10).
Claimant was scheduled to undergo a CT of the brain and
cervical x-rays. The results of the CT scan were normal,
but claimant presented with an unusual cervical spine series
Page 3
which notes retrolisthesis of C3 on C4. Claimant then
underwent a myleogram, and as a result was scheduled for an
anterior interbody fusion. This surgery was performed on
April 18, 1989.
The hospital records from Mercy Hospital in Davenport,
Iowa, indicate that claimant was experiencing progressive
disuse of the lower extremities and sharp pains in the neck
and head region, as well as intermittent syncopal and near
sign syncopal episodes. Claimant related a lifelong history
of spastic paraparesis. Additionally, claimant stated that
he had been having significant worsening of his gait over a
number of weeks prior to the admission, with numbness and
tingling in his feet and severe leg cramps. Claimant's
history noted that he had had a number of falls at which
time he states some were precipitated by certain movements
of his neck. (Jt. Ex. C, pp. 17-21).
The surgical notes which described the operation also
contained a patient history:
In the months of January and February of 1989, the
patient found several instances of inability to
feel his legs when attempting to arise out of bed.
He had noted a progressive difficulty with low
back pain over a three year period, but had seen a
more rapidly progressive deterioration of his
gait. He had had intermittent trouble moving and
had experienced a progressive syndrome of
increasing numbness and tingling in his feet and
cramping of his legs. He had had episodes of
falling which seemed to be more of a collapse
syndrome with a collapse of his legs and syncope
when holding his head in extension.
(Jt. Ex. C, p. 30).
On May 4, 1990, Dr. Brakel, who had been treating
claimant since March of 1989 and who performed the surgery,
was of the following opinion:
He stated that he had a prior history of
difficulty with his legs which he felt was related
to an infection as a teenager. He stated that
this was undulant fever. He had been stable for a
number of years, but noted that within the year or
two prior to our evaluation walking had become
progressively impaired. Spasticity in his legs
was worsening, he specifically noted that when he
extended his neck, or was squatting down under a
counter he had sudden loss of all muscle tone and
had fallen to the floor. He denied any loss of
consciousness. He had fallen a number of times at
work.
....
To reiterate, this patient has had cervical
instability, perhaps exacerbated by a number of
falls at the work place. This certainly was a
Page 4
predecessor of injury by his apparent fever but
the impingement on his spinal cord has created
further damage.
(Jt. Ex. B, pp. 15-16).
Dr. Brakel concluded that claimant's total impairment
was 50 percent of the body as a whole. (Jt. Ex. B, p. 15).
As of the date of the hearing, claimant had not
returned to work. He was receiving Social Security
disability benefits. His physical condition had
deteriorated some, as he stated he could not walk without
assistance, but could stand in limited quantities of time.
analysis and conclusions of law
The first issue to be discussed is whether claimant
received an injury on March 25, 1989 which arose out of and
in the course of his employment.
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. The words "arising out of" refer to the
cause or source of the injury. The words "in the course of"
refer to the time, place and circumstances of the injury.
Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986);
McClure v. Union, et al., Counties, 188 N.W.2d 283, 287
(Iowa 1971).
Professor Larson, in discussing the arising out of
element of an injury suggests three categories of risk. The
first category are risks distinctly associated with
employment which are universally compensable. The second
category are risks personal to the claimant which are
universally noncompensable. The third category are neutral
risks which generate the most controversy. I Larson,
1/210.31(a Copies To:
Mr Michael J McCarthy
Attorney at Law
701 Kahl Building
Davenport Iowa 52801
Mr Elliott R McDonald Jr
Attorney at Law
PO Box 2746
Davenport Iowa 52809
5-1101
Filed October 3, 1991
PATRICIA J. LANTZ
before the iowa industrial commissioner
____________________________________________________________
:
DELMAR SKEEL, :
:
Claimant, :
:
vs. :
: File No. 946051
KWIK SHOPS, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1101
Claimant, who had contracted undulant fever as a teenager
and as a result was left with very weak lower extremities
and an inability to walk unassisted, fell at work.
Held: Claimant's employment did not subject him to a risk
greater than nonemployees. The cause of the fall did not
bear any special relationship to the work.