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before the iowa industrial commissioner
____________________________________________________________
:
KATHY McBRIDE, :
:
Claimant, :
:
vs. :
: File No. 947544
MONFORT, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
HOME INSURANCE COMPANY C/O :
GALLAGHER BASSETT, INC., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration brought by Kathy
McBride, claimant, against Monfort, Inc., employer, and Home
Insurance Company c/o Gallagher Bassett, Inc., insurance
carrier, defendants, for benefits as a result of an injury
which occurred on March 27, 1990. A hearing was held in Des
Moines, Iowa, on February 26, 1992, and the case was fully
submitted at the close of the hearing. Claimant was
represented by Phillip F. Miller. Defendants were
represented by Timothy J. Wegman. The record consists of
the testimony of John E. Garfield, Ph.D, clinical
psychologist; Adela J. Niedermann, claimant's sister-in-law;
Kathy McBride, claimant; Susan D. Sears, vocational
rehabilitation consultant; Rod Cheney, certified prosthetics
specialist; Bary Carl, personnel manager; joint exhibits A
with sub-parts 1-7; claimant's exhibits 3, 4 and 5; and
defendants' exhibits B, C and E.
preliminary matter
Claimant objected to defendants' exhibit D. The
objection was sustained and the document was not admitted
into evidence because it had not been timely served within
fifteen days prior to hearing, as required by paragraph 8 of
the hearing assignment order. Exhibit D was accepted as an
offer of proof at the request of defendants' counsel, as
well as a portion of the testimony of Bary Carl relating to
the document.
Defendants objected to claimant's exhibits 1 and 2.
Claimant voluntarily withdrew claimant's exhibits 1 and 2.
Both parties voluntarily withdrew sub-part 8 of exhibit
A, a deposition of claimant, at the request of the deputy,
because claimant was available at the hearing for both
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direct and cross-examination.
Official notice was taken of the Guides to the
Evaluation of Permanent Impairment (3d ed. chapter 14
through 14.5), and Appendix of the glossary, Transcript,
page 16.
Claimant was permitted to amend the petition to request
an arbitration proceeding instead of a review-reopening
proceeding without objection by defendants.
Claimant withdrew a motion filed two days prior to
hearing to amend the petition to request additional
appropriate therapy for claimant for depression and mental
injury.
Claimant objected to defendants' assertion of a claim
pursuant to Iowa Code section 85.38(2) for credit for
nonoccupational group plan benefits paid to claimant prior
to hearing. The objection was sustained for the reason that
this issue was not designated as a hearing issue on the
hearing assignment order and the notes of the prehearing
deputy do not indicate that this matter was discussed at the
prehearing conference. Deputies determine only issues which
are designated as hearing issues on the hearing assignment
order. Presswood v. Iowa Beef Processors, file number
735442 (Appeal Dec. 1986); Hall v. Larson d/b/a Hilltop
Pork, No. 846905 (Appeal Dec. April 22, 1991). Similarly,
Deputy Industrial Commissioner Bernard J. O'Malley refused
to determine defendants' credit for nonoccupational group
health plans, pursuant to Iowa Code section 85.38(2) for the
reason that it was not designated as a hearing issue on the
hearing assignment order. Burk v. Department of Human
Services, File No. 793416, filed May 18, 1989.
Claimant withdrew the issue of whether claimant had
sustained an occupational disease, pursuant to Iowa Code
section 85A which appears as a hearing issue on the hearing
assignment order.
The parties agreed that the issue shown as alternate
care on the hearing assignment order was an issue of whether
claimant is entitled to future occupational therapy as a
medical benefit under Iowa Code section 85.27 in order to
learn how to better use the prosthetic device which replaces
her amputated right hand and a portion of her right arm.
The deputy determined that the issue of whether
claimant had sustained a compensable psychological injury
would be determined in the decision because it was raised by
the discovery and both parties had ample opportunity to
prepare for this issue. Formal rules of pleading are not
required in workers' compensation hearings that require a
psychological injury to be pleaded in the petition, raised
at the prehearing conference or designated as a hearing
issue on the hearing assignment order if it is raised by the
evidence obtained during prehearing discovery proceedings.
Shank v. Mercy Hospital Medical Center, File No. 719627
(Appeal Dec. August 28, 1989).
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Defendants presented a brief description of disputes at
the time of hearing. The deputy ordered a transcript of the
hearing. Both attorneys submitted excellent posthearing
briefs.
issues
The parties presented the following issues for
determination at the time of the hearing:
1. Whether claimant is entitled to permanent
disability benefits and, if so, the nature and extent of
benefits to which she is entitled to include whether
claimant has sustained an injury to a scheduled member or to
the body as a whole, and whether claimant has sustained a
compensable psychological injury;
2. Whether Iowa Code section 85.34(2), which provides
only for limited recovery for scheduled member injuries, is
constitutional; and,
3. Whether claimant is entitled to future occupational
therapy treatments, pursuant to Iowa Code section 85.27, in
order to better use the prosthetic device which replaces her
amputated right hand and a portion of her right forearm.
findings of fact
entitlement to permanent disability
scheduled member/body as a whole
It is determined that claimant has sustained a
scheduled member injury to the right arm which caused a 93
percent loss of use of the arm and that claimant is entitled
to 232.5 weeks of permanent partial disability benefits.
Claimant, born September 17, 1952, was 37 years old at
the time of the injury and 39 years old at the time of the
hearing. She started to work for the employer on December
5, 1988, and continued to work for the employer until her
injury which occurred on March 27, 1990 (Defendants' Exhibit
C). At the time of the injury, she was employed as a
quality control inspector at a salary of approximately
$18,200 per year (Transcript, pages 143, 144, 168 and 181).
Claimant described the injury as follows:
A. I was trying to push some of the meat
samples into the grinder. Some had got stuck
along the side and I wanted all of the meat to go
through the sample to give accurate test results.
I let my hand slip in too far.
The auger of the grinder caught my glove and
fingers and pulled my hand down into the main part
of the grinder. There was intense pressure and
squeezing and a great amount of pain. I
immediately braced my left hand against the side
of the grinder and began to try to pull my hand
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out. I thought it would come out certainly
injured, but when my arm came out, all I saw was a
straight bone on the end of my arm and blood was
everywhere.
(Tr., p. 146)
In addition to relating the horrible tragedy which
occurred, claimant's testimony is the initial evidence that
the injury affected her right hand and arm.
Claimant was transported to Iowa Methodist Medical
Center where she was treated by Douglas S. Reagan, M.D., an
orthopedic surgeon (Joint Exhibit A(1), p. 2), who debrided
the right arm stump and packed the wound on March 27, 1990
(Jt. Ex. A(1), p. 3), and debrided and closed the amputation
on March 30, 1990 (Jt. Ex. 2, p. 4). Post-operatively, the
patient progressed well with minimum or expected discomfort
and was discharged on April 2, 1990 (Jt. Ex. A1(1), p. 5).
On April 9, 1990, Dr. Reagan saw claimant for a follow-up of
the debridement and closure of the amputation of the right
arm. He noted that she had done well (Jt. Ex. A(1), p. 6).
On April 23, 1990, he saw claimant again for follow-up
of the amputation of the right arm and noted that she had
done extremely well (Jt. Ex. A(1), p. 6). On May 21, 1990,
he ordered a below elbow prosthesis for an amputation of the
arm below the elbow (Jt. Ex. A(1), p. 8). On September 20,
1990, Dr. Reagan saw claimant for the final follow-up of the
amputation of her right arm through the forearm. He noted
that the prosthesis which he described as a bio-electric arm
was working quite well and that claimant had good pinch and
good control. He noted that claimant was having pain at the
mid portion of the distal arm which he suspected was a
neuroma which did not require treatment. He noted that she
was also having a problem with continuous phantom pain.
Dr. Reagan determined that claimant had sustained a
"permanent partial impairment of 90% of the upper extremity
based on the AMA Guidelines." (Jt. Ex. A(1), p. 7) In
addition, he restricted claimant from climbing ladders,
working with heavy machinery, and working with grinders. He
said she would need a job where she would only use her right
hand as a helper hand and that much of the work would be
done with the left hand. He imposed a weight restriction of
about five pounds to ten pounds for the right hand and said
she would not be able to do repetitive activity with her
right hand (Jt. Ex. A(1), p. 7).
On August 8, 1990, Dr. Reagan wrote: The patient may
return to limited duty work activities without use of the
right upper extremity effective 8/13/90;...." (Jt. Ex. A(1),
p. 1)
Thus, in reviewing the notes of the treating orthopedic
surgeon, there is no evidence of injury or disability beyond
the right forearm and hand.
The hospital records show that claimant did not have
shoulder, neck or back pain but did have elbow pain (Jt. Ex.
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A(2), pp. 1 and 5).
Therefore, the hospital records demonstrate only an
injury to the right hand and forearm with some elbow pain
without any proof of physical injury to any other part of
the body.
On April 27, 1990, one month after the injury,
defendants provided claimant with a private rehabilitation
consultant, Susan D. Sears, R.N., BSN, who described herself
as a rehabilitation specialist (Tr., p. 196). Sears worked
with claimant from April 27, 1990 until September 20, 1990,
when she received the final fitting on her right hand and
arm prosthesis (Tr., pp. 107 and 206).
A careful examination of the reports submitted by
Sears, joint exhibit A(6) and the testimony of Sears at
hearing (Tr. pp. 195-215) disclose no mention of physical
injury beyond the right arm.
Claimant was examined and evaluated on one occasion by
Karen Kienker, M.D., a physical medicine and rehabilitation
doctor, who reported on July 10, 1991.
Dr. Kienker reported that claimant suffered an
amputation of her right hand and four inches of her forearm
in an industrial meat grinder. Sears reported that claimant
was right hand dominant (Jt. Ex. A(6), p. 1), but Dr.
Kienker reported that claimant uses her left hand as her
dominant hand now. Dr. Kienker further reported that
claimant denies any other health problems. This doctor's
impression was "[t]raumatic right below elbow amputation."
(Jt. Ex. A(7), p. 1) Dr. Kienker related the following
evaluation:
Her percentage of impairment is rated using the
American Medical Association Guidelines, Third
Edition. There is a diagram in which if the
fingers are all gone there is a 90% impairment and
if the arm is gone at the elbow there is a 95%
impairment. I rate hers as a 93% impairment of
the right upper extremity.
(Jt. Ex. A(7), p. 1)
Dr. Kienker imposed no restrictions on sitting,
standing or walking. She did recommend sedentary work and
lifting only up to ten pounds occasionally. She said
claimant should avoid work which involves fine coordination
of both hands or which requires heavy use of both hands
simultaneously. Claimant should avoid climbing ladders.
She recommended against claimant's previous job at the meat
packing plant because it required heavy use of both hands.
The doctor added that claimant had reduced coordination
which put her at risk of reinjury (Jt. Ex. A(7), p. 2).
Thus, nothing in Dr. Kienker's report indicates any
physical injury beyond the right forearm.
Shoulder injuries have been determined to be injuries
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to the body as a whole. Alm v. Morris Barick Cattle Co., 240
Iowa 1174, 38 N.W.2d 161 (1949). However, this is not a
shoulder injury. Hip injuries have been determined to be
injuries to the body as a whole. Lauhoff Grain v. McIntosh,
395 N.W.2d 834 (Iowa 1986). However, this is not an injury
to the hip.
None of the evidence in the case, medical or
nonmedical, describes a physical injury beyond the right
hand and forearm.
Wherefore, it is determined that claimant has not
sustained a physical injury to the body as a whole but on
the contrary claimant's physical injury is limited to the
right hand and arm. Therefore, claimant has sustained a
scheduled member physical injury.
psychological injury
It is determined that claimant has not sustained a
psychological injury independent of the normal psychological
residual effects that normally accompany and are a part of a
traumatic amputation of a limb.
Furthermore, it is determined that psychological
impairments caused by a scheduled member injury are
contemplated by the statute and are not compensable
industrially.
Claimant was examined by the clinical psychology
department of Iowa Methodist Medical Center on the day
following the injury on March 28, 1990. The report is
signed by what appears to be a psychologist and also a
medical doctor. This report states that claimant appeared
oriented and communicative and voiced acceptance of the loss
of her hand. However, it appeared that because of the acute
nature of the injury, she had not yet begun the actual
grieving process nor had she even been afforded the time to
herself needed to begin this process (Jt. Ex A(2), p. 6).
On April 27, 1990, on the first report of Sears, she
reported: "The claimant does not feel she needs any further
psychological help at this time, as a physchologist [sic]
spoke with her at the hospital." (Jt. Ex. A(6), p. 3) In
the same report, Sears found claimant pleasant and
cooperative and had a very good support system from her
family and friends (Jt. Ex. A(6), pp. 1 and 2). On May 21,
1990, Sears reported: "I feel the claimant is handling the
loss of her limb quite well." (Jt. Ex. A(6), p.5).
Sears' report of June 22, 1990, demonstrates no
evidence of any psychological problems. This report
discussed with optimism the choice of appropriate prosthesis
and a possible return to work in a management position (Jt.
Ex. A(6), pp. 8 and 9). On July 25, 1990, there is no
evidence of psychological problems but on the contrary Sears
reported: "Ms. McBride stated that this was great and was
quite excited about her new arm and pleased with the
appearance of it. She practiced closing and opening the new
limb." (Jt. Ex. A(6), p. 11) On October 24, 1990, Sears
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gives no evidence of psychological injury but on the
contrary reports: "Ms. McBride has decided not to return to
Monfort. Ms. McBride states that she began school at
Marshalltown Community College on August 21, taking a full
load of courses in business." (Jt. Ex. A(6), p. 13). On
October 15, 1990, in the final report of Sears, there is no
mention or indication of psychological difficulties (Jt. Ex.
A(6), p. 15).
At the hearing, Sears testified that in her opinion
claimant was dealing with the loss of her arm quite well.
Claimant indicated that somebody had visited her while she
was in the hospital concerning the loss of her arm and that
claimant was excited about obtaining a prosthesis and the
ability it would give her once she received it. Sears
testified that claimant never asked for psychological
counseling for the loss of her arm (Tr., pp. 198 and 199).
Sears testified: "Ms. McBride appeared as if she was
handling the loss of her arm quite well. She had
appropriate conversation and was talking about everyday
activities and dealing with them." (Tr., p. 205) Sears
acknowledged that she did not observe claimant after
September 20, 1990 (Tr., p. 206). Sears acknowledged that
claimant was upset about the loss of her arm but denied that
claimant was depressed (Tr., p. 209). Sears admitted that
she did not know, interview or talk to any of the family
members to determine their observations, nor did she talk to
the person who interviewed claimant in the hospital in the
clinical psychology department (Tr., p. 213).
Rodney W. Cheney, a certified prosthetist-orthotist,
testified at hearing that he fitted claimant for the
prosthesis. During those sessions, he found claimant to be
intelligent and responsive. She did not cry and was not
upset. She received an excellent fit on the prosthesis
(Tr., pp. 214-218). In a letter dated May 9, 1990, which
recommended the myoelectric prosthesis over the conventional
body part prosthesis, there was no indication from Cheney
that claimant manifested any indications of psychological
injury (Jt. Ex. A(5).
Bary Carl, personnel manager, testified that he hired
claimant and promoted her to the management position in the
quality assurance department as a quality assurance
technician. He saw claimant in the hospital and a couple of
times afterwards. With respect to claimant's appearance on
those occasions, Carl testified as follows: "Very good. She
always appeared good to me. One of the things that
impressed me, that she was of good Iowa stock and
levelheaded and dealt with reality and that was why we
promoted her. After the accident I was very impressed with
the way she handled it." (Tr., p. 228) Carl further
testified that when he received the letter from claimant
dated August 20, 1990, that she was not coming back to work
because she intended to go to school (Defendants' Exhibit B)
that he completed the separation and termination papers for
claimant on August 22, 1990 (Def. Ex. C). On this form,
Carl testified that he rated claimant above average in all
categories - quality of work, productivity, ability to get
along with others, attendance and punctuality, and safety
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record. In answer to the question, "would you rehire," Carl
marked, "yes." (Def. Ex. C).
John C. Garfield, Ph.D, a licensed clinical
psychologist, testified by report (Ex. A(4), pp. 1-9; Tr.,
pp. 47-108). He examined claimant for an hour and a half on
April 4, 1991, approximately one year after the date of
injury. He supplemented his clinical impressions with a
Minnesota Multiphasic Personality Inventory (MMPI). He did
not make a written report until October 28, 1991 (Tr., p.
49; Jt. Ex. A(4), p. 1). No explanation was offered for the
delay between the date of his examination and the date of
his report. He testified that claimant displayed symptoms
of post-traumatic stress disorder when confronted with
reminders of the accident such as the place of her
employment and the bloody clothing she was wearing at the
time of the injury (Tr., pp. 51 and 52). This was further
manifested by nightmares, social withdrawal, her own
perception of loss of physical attractiveness and continuous
phantom limb pain, a phenomenon experienced by persons who
have lost a limb (Tr., pp. 51-54). Dr. Garfield said these
symptoms were attributable to the traumatic injury claimant
suffered on March 27, 1990 (Tr., p. 58).
In his written report on October 28, 1991, Dr. Garfield
rated claimant as follows: "In terms of the Guide to
Impairment of the American Medical Association I would rate
Kathy McBride as having suffered a 20-25% permanent
impairment based upon her psychological reactions to the
traumatic injury suffered at the Monfort plant on March 27,
1990." (Jt. Ex. A(4), p. 2)
Dr. Garfield admitted in his hearing testimony that in
the vernacular, he goofed. Because he was not aware that
the second edition of the Guides which he used had been
superseded by the third edition (Tr. p. 59). The Guides to
the Evaluation of Permanent Impairment (3d ed.), published
by the American Medical Association, shows that the first
printing of the third edition was in November 1988,
approximately three years prior to Dr. Garfield's letter of
October 28, 1991.
Dr. Garfield concluded by opining that claimant was not
the normal emotional person that she was before this
traumatic amputation; that she has sustained an emotional
injury; and, that emotional reactions are systemic and
involve the entire central autonomic nervous system
including the brain and the head (Tr., pp. 84 and 85).
Dr. Garfield acknowledged that he only saw claimant on
one occasion, that he did not examine the medical records of
Dr. Reagan or Dr. Kienker, nor had he examined the
vocational rehabilitation reports of Sears or the report of
Cheney. He did not speak with claimant's family or friends
(Tr., pp. 87 and 88). He did not talk with any
representatives of employer (Tr., p. 92). Dr. Garfield
admitted that he had not treated claimant. He said that
using the third edition, which no longer gives numerical
ratings of impairment, he would place claimant in Class 3,
table I, on page 233, which is worded: "impairment levels
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compatible with some but not all useful function." (Tr., p.
105)
Claimant was examined by Raymond Moore, Ph.D, a
licensed clinical psychologist and neuropsychologist, on
February 11, 1992, and he reported on February 14, 1992 that
he performed the Mini Mental Status exam and she made a
perfect score of 24 out of 24 possible points indicating
that her mental capacities of registration, attention and
calculation, and language functioning are within normal
limits (Jt. Ex. A(3), pp. 1 and 2).
On the Pain Inventory, she did not rate the average
intensity of the pain very high, giving it a rating of
uncomfortable but she stated it was constant and continuous
(Jt. Ex. A(3), p. 3). Dr. Moore concluded:
Summarizing the data which I collected directly
from Mrs. McBride, I asked her about numerous
symptoms of psychiatric disorders, but I can make
no diagnosis based upon her responses, and I would
say that while she is a somewhat shy and sensitive
person who tends toward very mild depression, that
basically she is a normal person.
(Jt. Ex. A(3), p. 5)
Dr. Moore examined the report of Dr. Reagan, Dr.
Kienker, Dr. Garfield, Iowa Methodist Hospital Clinical
Psychology Department, and the reports of Rehabilitation
Specialist Sears. Dr. Moore said that except for Dr.
Garfield's report, the others opinions which he read also
substantiated his own opinion that Mrs. McBride is a normal,
mostly healthy woman who has made a good adjustment to the
traumatic loss of part of her right arm (Jt. Ex. A(3), p.
6).
Dr. Moore also examined the MMPI performed by Dr.
Garfield and stated that he found the profile suggests a
normal person who is slightly introverted and slightly
depressed (Jt. Ex. A(3), p. 6). Dr. Moore testified that
his interpretation is that a disability cannot be declared
permanent until treatment has failed to remedy it, however,
claimant has made no effort whatsoever to seek any kind of
treatment for her mild depression. He said claimant is an
unimpaired person who puts in a long day as an effective
student who is earning a 3.0 grade average, parenting her
children, managing her finances, taking care of her own
personal needs and helping her mother (Jt. Ex. A(3), p. 7).
Dr. Moore's final opinion was as follows: "In summary, I
find no evidence that Kathy McBride suffers from a
diagnosable mental disorder, I find that she is a normal
person, and I see no evidence that the traumatic experience
that she had on March 27, 1990, has had any significant
impact on her current mental functioning." (Jt. Ex. A(3), p.
8)
From the foregoing evidence, it is determined that the
opinion of Dr. Garfield is outweighed by the testimony of
Dr. Moore, Rehabilitation Specialist Sears, and Dr. Reagan.
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Furthermore, as noted, Dr. Garfield's opinion is flawed in
several respects, (1) that he did not examine the reports of
the other medical practitioners; (2) he used an outdated
edition of the AMA Guides; (3) that claimant has not sought
any treatment for psychological injury, but on the contrary
the refused treatment when it was offered to her by Sears;
and, (4) the forward movement and success that claimant has
made of her life through family relationships, financially
and scholastically, do not give any evidence that claimant
is suffering from a psychological injury. The psychological
symptoms that claimant has experienced are an integral part
of the grieving and recovery process for a person who has
suffered the sudden and unexpected, tragic and traumatic
loss of a limb.
Even if claimant had proven an independent
psychological injury which was the sequelae of the
amputation injury, claimant would not be entitled to recover
industrial disability benefits for an injury to the body as
a whole, because it has been determined by the industrial
commissioner that psychological impairments caused by a
scheduled member injury are contemplated in the schedule
itself and do unto constitute an extension of the injury to
the body as a whole
Cannon v. Keokuk Steel Casting, File No. 795331 (Appeal
Dec. January 27, 1988). Mortimer v. Fruehauff Corporation,
File No. 506116, filed February 22, 1990. Cannon was a
hearing loss case but the commissioner cited a decision made
by himself three months earlier where a claim was made for
psychological injuries where he held that benefits for a
scheduled member injury under Iowa Code section 85.34
contemplates compensation for any effect on claimant's
earning capacity caused by psychological problems stemming
from a scheduled member injury. Pilcher v. Pennick & Ford,
File No. 618597 (Appeal Dec. October 21, 1987).
Mortimer was a psychological injury case. The
commissioner's comments in Pilcher were dicta because
claimant failed to prove a change of condition in order to
be entitled to any benefits. Cannon and Mortimer did decide
the issue, however, and are res judicata. The
commissioner's decision in Cannon and the deputy
commissioner's decision in Mortimer follow an old and
established line of precedent that the amount payable for
specific injuries includes both payment for the impairment
and payment for the reduced capacity to labor. Schell v.
Central Engineering Company, 232 Iowa 421, 424, 4 N.W.2d
399, 401 (1942).
The schedule which specifically fixes the amount to be
paid on account of disability resulting from a single
scheduled member injury must be construed as exclusive from
all other provisions of the act. Moses v. National Union
Coal Mining Co., 194 Iowa 819, 824, 184 N.W. 746, 748
(1921).
The Supreme Court of Iowa has recognized the unfairness
in the situations, however, it has refused to judicially
legislate but has recognized that any change should come
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from the legislature itself. Brugioni v. Saylor Coal Co.,
198 Iowa 135, 138, 197 N.W. 470, 471 (1924); Graves v. Eagle
Iron Works, 331 N.W.2d 115 (Iowa 1983); Soukup v. Shores
Co., 222 Iowa 272, 268 N.W. 598 (1936).
entitlement
It is determined that claimant is entitled to 232.5
weeks of permanent partial disability benefits based upon a
93 percent permanent physical and functional impairment to
the right arm.
In this case, Dr. Kienker's evaluation is preferred
over that of Dr. Reagan. A treating physician's testimony
is not entitled to greater weight as a matter of law than
that of a physician who later examines claimant in
anticipation of litigation. The weight to be given
testimony of a physician is a fact issue to be decided by
the industrial commissioner in light of the record the
parties develop. Rockwell Graphics systems, Inc. v. Prince,
366 N.W.2d 187, 192 (Iowa 1985).
In this case it is determined that Dr, Kienker has
arrived at the most accurate determination. An examination
of Figure 2 on page 17 of the Guides to the Evaluation of
Permanent Impairment (3d ed.), published by the American
Medical Association, shows that an amputation of all digits
at the metacarpophalangel joint level is considered to be 90
percent of the upper extremity and that an amputation
immediately distal to the elbow joint is a 95 percent
impairment of the upper extremity. Claimant's amputation is
clearly proximal to the metacarpophalangel joint and distal
to the elbow joint. She lost approximately four inches off
the end of her forearm as well as the complete right hand.
Dr. Reagan does not give any explanation at how he arrived
at his rating whereas Dr. Kienker does give a complete and
accurate description of how she arrived at her rating. Even
though the industrial commissioner and deputies do not have
the authority to award industrial disability for scheduled
member injuries, nevertheless, they ar authorized to prorate
compensation payments within established norms when the loss
is less than something provided in the schedule. Blizek v.
Eagle Signal Co., 164 N.W.2d 84 (Iowa 1969). The
established norms in the Blizek decision were to the
provisions in the scheduled member statute, section
85.64(2)(n). In this case the established norms are
provided by Figure 2 of the Guides to Evaluation of
Permanent Impairment, which is found on page 17 of the third
edition and page 15 of the third edition (revised). Dr.
Kienker's proration of the impairment is found to be fair
and accurate based on the norm provided by the AMA Guides.
Even though the industrial commissioner and deputies
have used a number of factors in addition to impairment
ratings in order to determine scheduled member disability
over the years, the impairment rating in this case is
determined to be the proper amount of permanent partial
disability to the right arm. Soukup v. Shores Co., 222 Iowa
272, 268 N.W. 598 (1936); Weiland v. Swanson, File No.
783580 (Appeal Dec. December 29, 1989); Hernandez v. Iowa
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Packing Company, File No. 764529, filed September 25, 1985;
Walker v. Sheller Globe Corp., File No. 741065, filed
October 12, 1984; Arce v. Sandra pollock, File No. 707677,
filed November 8, 1983; Conyers v. Ling-Casler Joint
Venture, Vol. 1, No. 2, State of Iowa Industrial
Commissioner Decisions, 309 (1984); Langrehr v. Warren
Packing Corp., Thirty-fourth Biennial Rep., Iowa Ind. Comm'r
179 (1980); Pizza Hut of Washington, Inc. v. St. Paul Fire &
Marine Insurance Company, II Iowa Indus. Comm'r Rep. 317
(1979); Smith v. Winnebago Industries, File No. 824666,
filed April 2, 1991. Therefore, Dr. Kienker's rating is
preferred over Dr. Reagan's rating. Ninety-three percent of
the arm allowance of 250 weeks (Iowa Code section
85.34(2)(m) equals 232.5 weeks.
constitutionality of iowa code section 85.34(2)
It is determined that the constitutionality of the
schedule member provisions of the workers' compensation law
has been determined by the Iowa Supreme Court and that this
agency lacks the authority to determine the validity of a
statute. Spalding v. Emco Industries, File No. 892690
(Appeal Dec. November 28, 1990 written by Clair R. Cramer).
It is noted that claimant's counsel in this case also
represented claimant in the Spalding case. Probably the
most effective way to dispose of this issue in this case is
to quote acting commissioner Clair R. Cramer in that case
with the following language:
Claimant raises as an issue on appeal whether
the scheduled member provisions of the Iowa
Workers' Compensation Law are constitutional.
Claimant contends that these sections of the law
in their application to claimant operate to deny
her equal protection of the law as compared to
other claimants who suffer injuries that extend to
the body as a whole, and thus are compensated on
the basis of industrial disability. Claimant
relies on both equal protection under the U.S.
Constitution and Article I, Section 6 of the Iowa
Constitution. These sections have been previously
upheld by the Iowa Supreme Court as an appropriate
determination by the legislature to treat various
injuries differently under the workers'
compensation system. Graves v. Eagle Iron Works,
331 N.W.2d 116 (Iowa 1983). Claimant also alleges
that the statute is unconstitutional on its fac.
This agency lacks jurisdiction to determine the
constitutional validity of a statute. Salsbury
Laboratories v. Iowa Dept. of Environmental
Quality, 276 N.W.2d 830 (Iowa 1979).
Wherefore, it is determined that the scheduled member
provisions of Iowa Code section 85.34(2) have been
determined to be constitutional and that this agency lacks
jurisdiction to determine the validity of the statute.
occupational therapy
Page 13
It is determined that claimant is entitled to future
occupational therapy in order to learn how to adapt and more
proficiently manipulate the prosthetic device with which she
has been fitted.
This issue was described variously as alternate care,
physical therapy and occupational therapy. Defendants
disputed claimant's entitlement to future occupational
therapy as described above at the time of hearing (Tr., pp.
8 and 9). Rehabilitation Specialist Sears recommended
occupational therapy (Jt. Ex. A(6), p.2) to learn finer
motor control of her new prosthetic limb (Jt. Ex. A(6), pp.
11 and 12). Dr. Kienker stated that claimant would likely
benefit from occupational therapy in the use of her
prosthesis. She only had a brief instruction in its use and
very likely would become more skilled with more detailed
instruction (Jt. Ex. A(7), p. 2). Sears testified that
Cheney mentioned it and Dr. Reagan indicated it was
available but it was never set up (Tr., pp. 201, 202, 210,
211).
Prostetist Cheney testified he recommended
occupational therapy (Tr., pp. 219 and 220) but he did not
know if Sears was present at that time. In any event,
Cheney testified that it must be ordered by a medical doctor
and not by him (Tr., p. 221).
Claimant's counsel asserted at the hearing that
occupational therapy had been denied (Tr., p. 38).
Defendants' counsel maintained that Cheney recommended
occupational therapy but claimant did not follow up on it
and request it (Tr., p. 46).
Claimant acknowledged in her testimony that she had not
received any occupational therapy (Tr., p. 163). Claimant
related that she did not use the prosthesis very much
because she did not know how to operate it well. She
maintained that she was never given a referral to an
occupational therapist (Tr., pp. 176 and 177). She said the
prosthesis is very limited in what it can do (Tr., p. 178).
As the hearing ended, claimant was still requesting
occupational therapy (Tr., p. 189) because it had never been
ordered for her (Tr., p. 191). She was still waiting to be
referred for occupational therapy (Tr., p. 194).
In his posthearing brief, defendants' counsel stated
that employer does not dispute claimant's request for
occupational therapy to learn to better utilize the
prosthetic device.
Wherefore, it is determined that claimant is entitled
to future occupational therapy, physical therapy, or other
alternate care of good quality and at times and places
convenient to claimant as well as medical mileage to and
from occupational therapy sessions.
conclusions of law
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
Page 14
That claimant sustained a scheduled member injury to
her right arm and that claimant did not sustain a physical
injury to the body as a whole (Iowa Code section
85.34(2)(m). Dailey v. Pooley Lumber Co., 233 Iowa 758, 10
N.W.2d 569 (1943). Soukup v. Shores Co., 222 Iowa 272, 268
N.W. 598 (1936). Barton v. Nevada Poultry Co., 253 Iowa
285, 110 N.W.2d 660 (1961). Kellogg v. Shute and Lewis Coal
Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
That claimant did not sustain the burden of proof by a
preponderance of the evidence that she sustained a
psychological injury and if she had done so it would not
have been compensable industrially because Iowa Code section
85.34(2) with respect to scheduled member injuries
contemplates compensation for any effect on claimant's
earning capacity caused by psychological problems stemming
from an injury to a scheduled member. Pilcher v. Pennick &
Ford, File No. 618597 (Appeal Dec. October 21, 1987); Cannon
v. Keokuk Steel Casting, File No. 795331 (Appeal Dec.
January 27, 1988); Mortimer v. Fruehauff Corporation, File
No. 506116, filed February 22, 1990.
That claimant is entitled to 232.5 weeks of permanent
partial disability benefits based upon a 93 percent
permanent physical and functional impairment to the right
arm. Iowa Code section 85.32(2)(m)(u).
That claimant is entitled to quality occupational
therapy at reasonably convenient times and places and
medical mileage compensation for these treatments.
That the scheduled member provisions of Iowa Code
section 85.34(2) have been determined to be constitutional
and that this agency lack authority to determine the
constitutionality of the statute. Spalding v. Emco
Industries, File No. 892690 (Appeal Dec. November 28, 1990).
order
THEREFORE, it is ordered:
That defendants pay to claimant two hundred thirty-two
point five (232.5) weeks of permanent partial disability
benefits at the stipulated rate of two hundred twenty-three
and 98/100 dollars ($223.98) per week in the total amount of
fifty two thousand seventy-five and 35/100 dollars
($52,075.35), commencing on September 19, 1990, as
stipulated to by the parties.
That all accrued weekly benefits are to be paid in a
lump sum.
That interest shall accrue, pursuant to Iowa Code
section 85.30.
That defendants are to arrange for occupational therapy
for claimant within thirty (30) days after the signing and
filing of this order.
Page 15
That the costs of this action including the cost of the
attendance of the court reporter at hearing and the cost of
the transcript are to be charged to defendants, pursuant to
Iowa Code section 86.40 and 86.19(1) and rule 343 IAC 4.33.
That defendants shall file an activity report upon
payment of this award as requested by this agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of March, 1992.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Philip F Miller
Attorney at Law
Saddlery Bldg Ste 200
309 Court Ave
Des Moines IA 50309
Page 16
Mr Stephen W Spencer
Mr Timothy W Wegman
Attorneys at Law
218 6th Ave Ste 300
P O Box 9130
Des Moines IA 5030
Page 1
5-2903; 5-2906; 5-1803.1;
1108.20; 1108.50; 1401;
1402.40; 2204; 1803; 2301;
2302; 2902; 2906; 2501; 2504;
2700
Filed March 31, 1992
Walter R. McManus
before the iowa industrial commissioner
____________________________________________________________
:
KATHY McBRIDE, :
:
Claimant, :
:
vs. :
: File No. 947544
MONFORT, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
HOME INSURANCE COMPANY C/O :
GALLAGHER BASSETT, INC., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-2903; 5-2906
Claimant objected to defendants' proof of payment
supporting defendants' claim for credit under section
85.38(2). The exhibit was excluded because it was not
timely served pursuant to paragraph 8 of the hearing
assignment order. In fact, it had never been served and was
first produced at the hearing. It was admitted as an offer
of proof as well as a portion of the testimony of the
personnel manager on the issue of non-occupational group
health plan credits.
Claimant was allowed to amend the petition to designate
an arbitration proceeding rather than a review-reopening
without objection from defendants.
Claimant objected to defendants' assertion of a claim
for section 85.38(2) credit. This issue was not designated
as a hearing issue on the hearing assignment order nor was
it noted by the prehearing deputy at the prehearing
conference. Claimant's motion was granted and this issue
was not addressed in the decision. Deputies determine only
issues raised at the prehearing conference and designated as
hearing issues on the hearing assignment order. Cites
It was not necessary to specify psychological injury as
a hearing issue on the hearing assignment order because it
Page 2
was raised by the prehearing discovery and both parties were
prepared to present evidence on this matter. Cite
Claimant withdrew the issue of whether claimant had
sustained an occupational disease which was shown as a
hearing issue on the hearing assignment order.
5-1803.1
Claimant's loss of her right hand and about four inches
of her right forearm in a meat grinder that resulted in
amputation of her right hand and a portion of her forearm
was determined to be an injury to a scheduled member, the
right arm, and not an injury to the body as a whole.
1108.20; 1108.50; 1401; 1402.40; 2204
Claimant did not prove that she sustained a
psychological injury. The weight of the evidence is that
she did not sustain a psychological injury. The
psychological symptoms that she suffered were an integral
part of the sudden and unexpected, tragic and traumatic loss
of her limb. Claimant was only seen once by psychologists
in the hospital but was never subsequently treated for a
psychological injury. Treatment was offered several times
and claimant refused it.
Moreover, if claimant had sustained a psychological
injury which was sequelae of the arm amputation injury,
claimant would not be entitled to body as a whole permanent
partial disability benefits awarded industrially for the
reason that the industrial commissioner has determined that
psychological impairments caused by a scheduled member
injury are contemplated in the schedule itself and do not
constitute an extension of the injury into the body as a
whole. Cites
1803
The AMA Guides allow 90 percent of the arm for an
injury that amputates the fingers at the metacarpophalangeal
joint and 95% of the arm for an amputation just immediately
distal to the elbow. The treating physician assessed a 90%
permanent impairment. Claimant's evaluator assessed a 93%
permanent impairment. Claimant's evaluator was more
accurate than the treating physician. Claimant's evaluator
explained her rating; defendants' evaluator made no
explanation. Since the amputation was several inches
proximal to the fingers, then 90% was obviously not correct
based on the AMA Guides, because it did not consider the
metacarpal bones or the distal four inches of claimant's
right forearm. Claimant's evaluator properly prorated the
permanent between the two norms prescribed by the AMA
Guides. Cites
Even though the industrial commissioner and deputies
may consider other factors other than impairment ratings to
determine scheduled member disability, it was determined in
this case that the impairment rating accurately and fairly
Page 3
measured claimant's permanent partial disability. Cites
2301; 2302; 2902; 2906
It has previously been determined by the industrial
commissioner that the scheduled member provisions of section
85.34(2) have been found constitutional by the supreme court
and that the agency lacks the jurisdiction to determine the
constitutionality of the statute. Cites
2501; 2504; 2700
The weight of the evidence supported the proposition
that claimant was entitled to future occupational therapy
designed to instruct claimant in how to more effectively and
proficiently use the myoelectric forearm and hand
prosthesis. Although defendants opposed it at the hearing,
defendants conceded that claimant was entitled to
occupational therapy in their post hearing brief.
defendants were ordered to arrange quality occupational
therapy within 30 days of the decision at reasonable times
and places for claimant and to also pay medical mileage to
obtain it.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
TEDD A. NORMAN, :
:
Claimant, :
:
vs. :
: File No. 947582
DON AND TEDD'S TRUCK & :
AUTOMOTIVE SERVICE, INC., : A P P E A L
:
Employer, : D E C I S I O N
:
and :
:
WEST BEND MUTUAL INSURANCE :
COMPANY, :
:
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
Defendants state the following issues on appeal:
Whether the claimant sustained a personal injury arising out
of and in the course of his employment with the employer herein
on May 28, 1990;
Whether or not there is a causal relationship between
medical care and treatment rendered after claimant's first
surgery, and the injury of May 28, 1990 resulting in medical
expenses pursuant to section 85.27, Iowa Code; and,
The determination of the nature and extent of claimant's
disability resulting from the injury of May 28, 1990, if said
injury arose out of and in the course of employment.
FINDINGS OF FACT
The findings of fact appearing in the proposed arbitration
decision, pages 1 to 12, through paragraph ending "the May 28,
1990 injury" are accepted and adopted as final agency action.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed February 24, 1994 are adopted as set forth below.
It is intended that these conclusions shall stand in lieu of
Page 2
those of the arbitration decision.
The industrial commissioner accepts the causal relation
testimony of John Sinning, Jr., M.D., with regard to the second
and third surgeries. Dr. Sinning's letter of February 4, 1992 is
accepted with regard to lack of causal relationship. The
commissioner specifically finds in addition to Dr. Sinning's
letter, that his testimony given January 19, 1994 is supportive
of this conclusion as the physician testified at page 31 of his
deposition:
Q. Okay. Dr. Sinning, for our record have you had
an opportunity to look at Dr. Jones' letter to Carol
Nietzel [sic] of February 5, 1991, and a letter to the
attention of Carol Nietzel [sic] from April 20, 1991?
A. Yes.
Q. Okay. Is it fair to say that you and Dr. Jones
disagree about the cause for his January 1991 surgery?
A. Yes.
Q. Okay. Is there something, doctor, about the
work neurosurgeons as opposed to orthopedists do that
would give rise to your difference in opinion, or is
this a matter, doctor, upon which reasonably trained
and competent surgeons no matter their board
certification can and do disagree about?
....
A. Neither.
Q. Okay. As a layperson, doctor, why does Dr.
Jones causally relate his January surgery to the May
incident of 1990 and you don't?
A. Dr. Jones is proposing that a disk ruptures over time
because of an injury, and he proposes here that an injury in May
over a period of time caused a disk rupture that became apparent
in December, seven months later. That's contrary to medical fact
and contrary to medical opinion. Ruptured disks occur directly
as a result of a specific injury. The disk degeneration that is
part of everyday living does go on over time and then a specific
incident, sometimes an injury at work, sometimes something as
simple as a sneeze, causes that disk to rupture.
(Joint Exhibit C, page 31, line 15 through page 32, line 25)
As a result of this decision, it is specifically held that
claimant's second and third surgeries, or all treatment rendered
after the first surgery, were not caused by the traumatic
incident of May 28, 1990. However, it is held that claimant did
sustain a personal injury arising out of the course of his
employment on May 28, 1990 with Don and Tedd's Truck and
Automotive Service, Inc.; and further that he is entitled to
healing period benefits commencing May 28, 1990 through January
Page 3
5, 1991; and further, that said injury resulted in industrial
disability of 30 percent or 150 weeks at the stipulated rate of
$195.77.
WHEREFORE, the decision of the deputy is affirmed and
modified.
ORDER
THEREFORE, it is ordered:
That defendants pay unto claimant healing period benefits at
the rate of one hundred ninety-five and 77/l00 dollars ($195.77)
for the period beginning May 28, 1990 through January 5, 1991
totalling thirty-one point eight-five-seven (31.857) weeks.
That defendants pay claimant one hundred fifty (150) weeks
of permanent partial disability benefits at the rate of one
hundred ninety-five and 77/l00 dollars ($195.77) beginning
January 5, 1991, the day following the end of the healing period.
That defendants have paid all reasonable and necessary
medical expenses consistent with the conclusions of law reached
herein; and further, that the defendants are not responsible for
medical bills listed and previously ordered awarded in the
arbitration decision.
That defendants shall pay the cost of this action pursuant
to rule 343 IAC 4.33.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendants shall file an activity report upon payment
of this award as required by this agency pursuant to rule 343 IAC
3.1.
Signed and filed this ____ day of May, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert W. Pratt
Attorney at Law
6959 University Avenue
Des Moines, Iowa 50311
Page 4
Mr. E. J. Giovannetti
Ms. Anne L. Clark
Attorneys at Law
Terrace Center STE 111
2700 Grand Avenue
Des Moines, Iowa 50312
5-1100; 5-1108; 5-1802
5-1803; 5-2206; 5-2500
Filed May 11, 1994
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
TEDD A. NORMAN, :
:
Claimant, :
:
vs. :
: File No. 947582
DON AND TEDD'S TRUCK & :
AUTOMOTIVE SERVICE, INC., : A P P E A L
:
Employer, : D E C I S I O N
:
and :
:
WEST BEND MUTUAL INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1100; 5-1108; 5-1802; 5-1803
Found 32-year-old claimant incurred an injury that
arose out of and in the course of his employment resulting
in a 60% industrial disability award and healing period.
5-2206
Found claimant's preexisting degenerative disease was
substantially and materially aggravated and lighted up by
claimant's work injury.
5-2500
Found defendants have paid all reasonable and necessary
medical expenses; further, defendants are not responsible
for medical bills listed and previously ordered awarded in
the arbitration decision.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
FRANK E. DAVIS,
Claimant, File No. 947688
vs. A L T E R N A T E
RUAN LEASING COMPANY, M E D I C A L
Employer, C A R E
and D E C I S I O N
CRAWFORD & COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
Frank E. Davis filed a petition for alternate medical care
under Iowa Code section 85.27, invoking the summary
procedures of rule 343 IAC 4.48. He sustained an injury on
April 12, 1990, arising out of and in the course of
employment with Ruan Leasing Company and is now dissatisfied
with medical treatment provided by that employer.
Mr. Davis' petition for alternate medical care was filed on
September 2, 1992. A telephone conference hearing was
thereafter held on September 15, 1992. Claimant
participated personally and by counsel, Michael P. Brice.
Defendants were represented by Stephen W. Spencer.
The evidentiary record consists of claimant's testimony. No
documentary evidence was presented by either party. The
hearing deputy recorded the entire hearing via audio tape.
Defendants were required through counsel to respond to the
allegations of claimant's petition. Defendants admit that
claimant sustained injury arising out of and in the course
of employment on April 12, 1990, that the injury caused need
for medical treatment and that liability on the claim is not
generally disputed. Defendants denied that the treatment
was reasonably suited to treat the injury without undue
inconvenience or that claimant has communicated his
dissatisfaction.
Page 2
ISSUE
The sole issue presented for resolution is:
1. Whether defendants should be ordered to provide
alternate medical care under Iowa Code section 85.27.
findings of fact
Claimant sustained injury on April 12, 1990, and was
thereafter treated by Dr. Berg in Des Moines. Dr. Berg
eventually released claimant to return to work without
restriction, and claimant accepted employment with another
trucking firm on September 21, 1991. He remains so employed
in a job that requires him to lift weights in excess of 90
pounds.
Except for occasional treatment by two chiropractors, which
claimant does not claim is related to the work injury, no
further medical treatment was requested until August 1992.
Upon representation by claimant's attorney that immediate
need was required, defendants made an appointment with Dr.
Berg's partner, Dr. Blessman. Dr. Blessman prescribed one
week's therapy and released claimant to return to work.
Mr. Davis' is dissatisfied with Dr. Blessman's care. He
believes Dr. Blessman was ill-prepared to see him on the
first visit, that he treated him too roughly in evaluating
range of motion, and, no doubt most significantly, found
nothing wrong. Mr. Davis now wishes authorization to see
Dr. Berg again.
CONCLUSIONS OF LAW
In pertinent part, Iowa Code section 85.27 provides:
For purposes of this section, the employer is obliged to
furnish reasonable services and supplies to treat an injured
employee, and has the right to choose the care. The
treatment must be offered promptly and be reasonably suited
to treat the injury without undue inconvenience to the
employee. If the employee has reason to be dissatisfied
with the care offered, the employee should communicate the
basis of such dissatisfaction to the employer, in writing if
requested, following which the employer and the employee may
agree to alternate care reasonably suited to treat the
injury. If the employer and employee cannot agree on such
alternate care, the commissioner may, upon application and
reasonable proofs of the necessity therefor, allow and order
other care. In an emergency, the employee may choose the
employee's care at the employer's expense, provided the
employer or the employer's agent cannot be reached
immediately.
The statute was amended by House File 2250 in the 74th
General Assembly, affected July 1, 1992. The amendment
required the industrial commissioner to provide a method to
expeditiously resolve disputes under this section.
Claimant is dissatisfied with the care provided by Dr.
Blessman. Under the statute, employer has the right to
choose medical treatment although it must be offered
promptly and be reasonably suited to treat the injury
without undue inconvenience. The statute does not require
that claimant be satisfied with the treatment. The
Page 3
commissioner may order alternate care, but only "upon
application and reasonable proofs of the necessity
therefor." The statute is couched in terms of necessity,
not desirability.
It is claimant that seeks relief in this case. He bears the
burden of proof to show that the medical treatment provided
by defendants is not reasonably suited to treat the injury
without undue inconvenience. The party who would suffer
loss if an issue is not established has the burden of
proving that issue by a preponderance of the evidence. Iowa
Rule of Civil Procedure 14(f). Two physicians have released
claimant without restriction. The treatment provided by Dr.
Blessman is on the order of one year after claimant was
released by Dr. Berg without restriction, and after he
returned to work in a physically demanding job with another
employer. Claimant offers no expert opinion to show that
Dr. Blessman's treatment failed to meet the statutory
standard that it be reasonably suited to treat the injury.
Claimant is not qualified to pass on the wisdom of Dr.
Blessman's professional judgment.
Although claimant's petition alleges that the care is
unsuitable due to distance, he withdrew that allegation at
hearing.
As claimant has failed to establish his right to alternate
treatment, the issue must be resolved in favor of
defendants.
ORDER
THEREFORE IT IS ORDERED:
Claimant's petition for alternate medical care is denied.
Signed and filed this ____ day of September, 1992.
________________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Michael P Brice
Attorney at Law
PO Box 1143
Oskaloosa Iowa 52577
Mr Stephen W Spencer
Attorney at Law
218 Sixth Avenue Ste 300
PO Box 9130
Des Moines Iowa 50306-9130
1402.60; 2700
Filed September 26, 1992
DAVID R. RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
FRANK E. DAVIS,
Claimant, File No. 947688
vs. A L T E R N A T E
RUAN LEASING COMPANY, M E D I C A L
Employer, C A R E
and D E C I S I O N
CRAWFORD & COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
1402.60; 2700
Claimant failed to meet burden of proof in showing medical
care not reasonably suited to treat the injury without undue
inconvenience.
About one year after he had been released without
restriction, claimant requested immediate treatment and was
sent to partner of the original physician. After one week
of therapy, he was again released without restriction.
Dissatisfaction with treatment is not the statutory
standard.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JODIE L. COAN,
Claimant,
vs.
File No. 947809
JOHN MORRELL & COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
HOME INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding upon the petition in arbitration
filed by claimant, Jodie Coan against her employer, John
Morrell & Company, and its insurance carrier, Home Insurance
Company. The parties agree that claimant sustained injury
arising out of and in the course of that employment on
November 2, 1989, but disagree as to the nature and extent
of permanent disability, if any.
A hearing was accordingly held in Sioux City, Iowa on
May 19, 1993. Claimant, Dr. Horst Blume and Jay Everett
testified personally. The record also contains joint
exhibits 1 through 53, defendants' exhibits A through D and
claimant's exhibits 1, 2, and 4.
ISSUES
The parties have stipulated that claimant sustained
injury arising out of and in the course of employment on
November 2, 1989, and that the injury caused temporary
disability, the extent of which is no longer in dispute.
The parties also agreed to the appropriate rate of
compensation ($207.44 per week) and agree that defendants
are entitled to credit for benefits voluntarily paid prior
to hearing.
Issues presented for resolution include:
(1) Whether the injury caused permanent disability;
(2) The nature and extent of permanent disability, if
any; and,
(3) Entitlement to medical benefits under Iowa Code
section 85.27.
The disputed medical expenses are for charges of Dr.
Blume. These include both an examination (including various
tests) and a charge to review the file, presumably for
Page 2
preparation of the doctor's report. Defendants dispute
whether those fees are fair and reasonable, whether the
treatment was reasonable and necessary, and whether the
treatment is causally connected not only to the work injury,
but even to the condition upon which this claim is based,
and whether those expenses were authorized.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
Jodie Coan, 27 years of age at hearing, took employment
with John Morrell & Company in July, 1989. John Morrell is
engaged in the meat packing industry. Claimant took a job
on the kill floor, but was working on the derind line when
she developed the symptoms that constitute injury in this
case. Her job involved sliding pork bellies onto a scale,
then lifting and placing the bellies in a container. Most
bellies weigh 10 to 13 pounds, although a rare specimen may
reach 18.5 pounds.
On November 2, 1989, claimant visited the plant nurse
with complaints of hand, thumb, first and second digit pain.
She was referred to D. M. Youngblade, M.D., and eventually
seen on November 20. Dr. Youngblade returned her to light
duty work, charting painful and sensitive digits on the left
hand. Claimant was to reduce left wrist activity and was
given a splint. On January 15, 1990, claimant was better,
but complained that grasping with the left hand caused pain.
The light work she had been given was that of splitting
heads, which Dr. Youngblade thought seemed beneficial. By
February 6, claimant's left thumb was noted as better and
diagnosis was of tendonitis of the left thumb. However,
claimant was to stay out of cold, moist areas because she
had developed symptoms that have since been diagnosed as
Raynaud's phenomenon, a vascular disease afflicting the
extremities.
By March 1, claimant also had developed symptoms in the
right hand.
Dr. Youngblade saw claimant a total of five times
between November 20, 1989 and March 28, 1990. In addition
to cold hands, claimant complained of wrist and thumb pain,
especially on the left side. Dr. Youngblade charts no
complaints of numbness, nor of problems affecting any other
part of the body, such as the neck or shoulders.
Claimant was next referred to Alan Pechacek, M.D.. Dr.
Pechacek saw claimant on numerous occasions between April
17, 1990 and May 9, 1991.
On the first visit, Ms. Coan made complaint of
persistent pain over the radial aspect of the wrists,
extending into the thumb. Left was worse than right. Dr.
Pechacek's initial impression was of (1) DeQuervain's
tendonitis involving the extensor tendons to both thumbs;
and (2) bilateral Raynaud's phenomenon.
After numerous medications failed to bring relief, Dr.
Page 3
Pechacek performed a tendon sheath release in November 1990.
Unfortunately, the procedure failed to relieve symptoms.
Due to the lack of success, a similar procedure was not
performed on the right side.
On May 9, 1991, claimant underwent a functional
capacity evaluation. The occupational therapist, Melissa
Pierce, suggested certain limitations, but noted that
claimant's efforts "were not consistent and indicate full
effort was not given." Dr. Pechacek charted that there was
not much more he could offer the patient and imposed
restrictions of light duty work, not in a cold environment.
Claimant was to avoid prolonged or heavy gripping, prolonged
heavy grasping, prolonged heavy pushing and pulling with a
limit of less than 25 pounds occasionally. She should
reduce or avoid repetitive hand and wrist motion and should
not use a knife, hook or electric knife. Lifting
restrictions were 25 pounds from floor to waist, 15 pounds
from waist to shoulder and 10 pounds above shoulder level.
Claimant was released PRN.
Dr. Pechacek's extensive chart notes reflect absolutely
no complaints of numbness or any problems other than in the
hands. On May 17, 1991, Dr. Pechacek rated claimant as
having a zero impairment rating pursuant to the AMA Guides
to the Evaluation of Permanent Impairment, noting that the
Guide is based on range of motion measurements, not pain or
loss of other function. Claimant had full range of motion
of the wrist, thumb and fingers.
Claimant was seen by Dr. Kuhnlein in October 1990. His
diagnosis was of bilateral DeQuervain's syndrome. His
records do not reflect complaints other than in the hands.
On August 26, 1991, claimant was seen for evaluation by
Michael T. O'Neil, M.D.. Claimant conceded that Dr. O'Neil
was her selected physician for an independent medical
examination under Iowa Code section 85.39. Dr. O'Neil
concurred with Dr. Pechacek that claimant suffered chronic
tenosynovitis of the wrist including the first extensor
compartment (DeQuervain's syndrome) and cold induced
Raynaud's phenomenon. He recommended that claimant avoid
work requiring cold or damp climates and should avoid
repetitive flexion, extension and grasping and releasing of
both hands. Although noting that claimant had normal range
of motion of both wrists and fingers, Dr. O'Neil assigned a
5 percent permanent impairment rating related to both
conditions. Dr. O'Neil does not specifically discuss
whether any causal nexus exists between the work and
claimant's Raynaud's phenomenon. There is no indication of
symptoms located other than in the hands and wrists.
Records of the Grandview Medical Clinic show that
claimant was seen on June 12, and September 26, 1991. On
the first occasion, claimant had chest pain, light
headedness and tachycardia, along with pain in the right
scapular region. In September, she reported pain from the
left front radiating to the left shoulder blade.
Claimant last worked for John Morrell in March 1990.
Page 4
June and September 1991 mark the first complaints of
shoulder pain appearing in any medical records. Well over a
year separates the events.
Beginning December 17, 1991, claimant began a course of
treatment with David Paulsrud, M.D.. Dr. Paulsrud's chart
notes reflect complaints of numbness and tingling in the
hands which he diagnosed as cervical outlet syndrome. Dr.
Pechacek does not directly discuss causation, except that he
notes claimant's past medical history is significant with
respect to synovitis in the hands "and has a permanent
impairment disability from work comp." Thus, his only
statement tending to support causal nexus between claimant's
work and her medical problems is limited to the hands.
On January 28, 1993, Dr. Paulsrud rated claimant's
impairment at zero. Although his diagnosis continued to be
of cervical outlet syndrome, he charted that claimant
demonstrated full range of motion of the upper extremities.
For at least the second time, he notes drooping of the
shoulders.
Claimant was seen for evaluation by Horst G. Blume,
M.D., on March 15, 1993. By this time, Ms. Coan complained
of pain coming from the neck into the left shoulder girdle,
down the left arm into the left hand with intermittent
tingling in the second and third fingers of the left hand
and of a cold feeling in the left fingers. Dr. Blume
diagnosed a nerve root irritation in the C6 distribution
with sensory and pain condition and cervicogenic headaches
as well as Raynaud's phenomenon. He also found evidence of
reflex sympathetic dystrophy, status post previous hand
surgery on the left, irritation of the left
acromioclavicular joint and thoracic outlet syndrome, and
anterior scalenus syndrome on the left (however, in his
report of March 18, Dr. Blume specified that he found no
evidence of thoracic outlet syndrome).
Assigning a permanent impairment rating to the body as
a whole of 10 to 15 percent, Dr. Blume concluded that
repetitive work activity as well as the "particular
accident" on November 2, 1989 were responsible for
claimant's condition. Actually, there was no particular
accident on November 2, 1989; that was the date claimant
first sought medical attention at the plant medical
department.
However, as to claimant's chronic tenosynovitis
problem, Dr. Blume found no symptomatology whatsoever.
Claimant was also seen for evaluation by Joel T.
Cotton, M.D.. She was seen on April 16, 1993. Dr. Cotton,
a board certified neurologist, agreed with the diagnoses of
DeQuervain's tenosynovitis. As did Dr. Pechacek, he found
no loss of range of motion in either hand or wrist and
assigned no permanent impairment to that problem.
Dr. Cotton found no evidence indicative of cervical
outlet syndrome, irritation of the brachial plexus,
irritation of the sixth cervical nerve root or of anterior
Page 5
scalene syndrome. In addition to finding no evidence of
these conditions, Dr. Cotton opined that any past
consideration of such irritation was not causally related to
claimant's employment at John Morrell. In this connection,
he pointed out the huge time gap between claimant's last
work and the development of symptoms requiring treatment in
December 1991. Dr. Cotton also found no evidence to suggest
a condition of reflex sympathetic dystrophy. The hands were
easily manipulated without complaint, claimant showed no
atrophy of the skin or nails, and had no abnormal
perspiration pattern. Dr. Cotton was unimpressed by Dr.
Blume's use of thermography, pointing out that the procedure
is not accepted by the American Academy of Neurology and
that pursuant to Medicare policy, Iowa Medicaid has declared
thermograms not compensable. Dr. Blume had found, based
largely upon thermogram testing, that claimant suffered a
mild case of reflex sympathetic dystrophy. Dr. Cotton also
pointed out that some three years had elapsed between
claimant's last work for John Morrell and her examination by
Dr. Blume, the first physician to suggest the presence of
reflex sympathetic dystrophy.
Dr. Cotton also pointed out that Raynaud's phenomenon
is a disorder of unknown cause, and that females are most
commonly afflicted. Exposure to cold or emotional stimuli
may trigger the response, but cold does not itself cause the
condition.
It is worth noting that claimant had been previously
employed by another meat packer, IBP. Nurse's notes from
that plant dated January 1988 show complaints of redness in
the palm of the right hand; a physician (name illegible)
concluded that claimant had sustained no injury, but that
this was a normal reaction to cold. Claimant, in her
application for employment with Morrell, requested that she
not be assigned to a cold environment. It seems clear that
symptoms of Raynaud's phenomenon preceded her employment
with Morrell.
conclusions of law
The parties agree that claimant sustained injury
arising out of and in the course of employment. The
fighting issue is whether the injury caused permanent
disability, and if so, the extent; specifically, whether the
injury extends into the body as a whole because of the
late-developing symptoms described by Dr. Blume.
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
Page 6
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
Claimant has been seen by a number of physicians. Only
two, Dr. Paulsrud and Dr. Blume, find evidence of symptoms
beyond the hands. Dr. Blume's opinion -- that all the
physical problems he diagnosed were caused by repetitive
work at Morrell -- stands alone.
First, it is not at all certain that claimant has the
wide range of conditions outlined by Dr. Blume. Dr. Cotton,
a highly qualified neurologist, specifically believes not.
Dr. Blume, while also board certified in his specialty, is
currently practicing medicine on a probationary status. He
is barred from performing certain craniotomies at a local
hospital except in association with a second physician. He
is the only local physician who relies on thermograms, a
procedure not shown to be accepted by the medical
establishment and not compensable by Medicaid or Medicare.
It is also noted that Dr. Blume's opinions have
frequently been offered in evidence before this agency. In
agency experience, those opinions rather consistently tend
to favor claimants. Under Iowa Code section 17A.14(5), it
is appropriate to consider agency experience in evaluating
Dr. Blume's opinion. Davis v. Rose Haven Nursing Home
(Appeal Decn. July 26, 1993).
But, the main problem in accepting Dr. Blume's opinion
on causation is the extensive time gap between claimant's
last work for John Morrell and the development of numbness
and symptoms beyond the wrists and thumbs. Dr. Blume does
not hypothesize a mechanism for explaining the greatly
belated development of symptoms. Although Ms. Coan's brief
claims that "Dr. Blume testified many times a final
diagnosis of cervical outlet syndrome scalene syndrome
and/or C6 nerve irritation does not manifest itself until
some years after the event(,)" a careful review of the
transcript fails to find support for her allegation. On
only two occasions does Dr. Blume even come close to
expressing such an opinion. At page 6 of his transcribed
testimony, Dr. Blume found claimant's history consistent
with reported symptomatology, "even though in the beginning
patient had some kind of tendonitis for which the patient
was treated appropriately by orthopedic doctors." And, at
page 16, Dr. Blume testified that the cervical outlet
syndrome he diagnosed in claimant developed gradually.
This is a tenuous tie to the original work injury.
Claimant was actually taken off the derind line in November
1989 and had improved somewhat by March 1990. Symptoms
Page 7
consistent with cervical outlet syndrome, including numbness
in the extremity, were not complained of until December
1991. Even Dr. Blume agrees that other conditions can cause
or aggravate such an impingement syndrome, including lifting
heavy weights and poor posture. Claimant agrees that she
carried her children and grocery bags during the intervening
time, and the records of Dr. Paulsrud make note of
claimant's stooped posture. This writer observed that
claimant exhibited a noticeably slumped or stooped posture
during the course of hearing.
Dr. Blume in part buttresses his opinion with the
repeated assertion that Dr. Youngblade charted numbness
early on. In fact, a review of Dr. Yongblade's records does
not confirm Dr. Blume's understanding. On November 20,
1989, Dr. Youngblade charted "sort of a peculiar sensation"
involving the thumb, first and second fingers. This is the
only reference in Dr. Youngblade's records that even
suggests complaints of numbness. During Dr. Pechacek's
lengthy treatment, his only mention of such symptoms is when
he points out that claimant did not complain of numbness.
While Dr. Paulsrud also diagnosed a cervical outlet
syndrome, he apparently did not find it significant, since
he found that claimant had zero impairment. Dr. Cotton
opined that claimant had no such symptoms, and that any past
consideration of such a syndrome was not caused or related
to claimant's employment.
It must be concluded, then, that claimant has failed to
prove that the various conditions described by Dr. Blume
bear a causal nexus to the original work injury.
This leaves for consideration the original diagnoses of
Dequervain's tenosynovitis and Raynaud's phenomena.
The evidence does not show that work at John Morrell
caused (or aggravated or lit up) development of Raynaud's
phenomenon. Dr. Cotton's testimony is consistent with
agency experience: Raynaud's is an idiopathic condition of
unknown etiology which becomes symptomatic, especially in
females, in the presence of cold or emotional stress.
Claimant apparently had early signs of Raynaud's phenomenon
in her previous employment with another packinghouse, IBP.
Dr. Pechacek specified that the two conditions were
independent problems. Cold conditions at John Morrell
merely provided a stage for the preexisting condition to
manifest itself.
Come at last we must to the thorniest issue: what, if
any, disability was caused by claimant's bilateral
development of DeQuervain's tenosynovitis. There are at
least three reasonable solutions.
First, it can be concluded that claimant sustained
permanent impairment to the wrists as shown by the fact that
Dr. Pechacek, the treating surgeon, imposed substantial
restrictions on activities. While Dr. Pechacek gave
claimant a zero impairment rating, he specifically did so on
the basis of the American Medical Association Guides to The
Page 8
Evaluation of Permanent Impairment. As the doctor himself
points out, the Guides deal almost exclusively with
measuring range of motion, not other indicia of impairment.
The imposition of medical restriction by itself is
indicative of impairment. Even though Dr. Blume and Dr.
Cotton found zero impairment, Dr. Cotton described
continuing tenderness and complaints of pain over both
wrists and increasing hand and forearm pain with lifting in
excess of ten pounds. Pointing out that he found no loss of
range of motion in either hand or wrist, Dr. Cotton opined
that claimant had no permanent impairment relating to her
history of DeQuervain's tenosynovitis, further stating that
claimant had reached maximum medical improvement as of May
17, 1991 (the date of Dr. Pechacek's letter setting forth
impairment ratings and restrictions). He did not suggest
lifting the medical restrictions imposed by Dr. Pechacek.
Alternatively, it could well be concluded that claimant
continued to improve beyond May, 1991, until she was
essentially nonsymptomatic when seen by Dr. Blume on March
15, 1993. Under this theory, claimant has no permanent
disability now, but her healing period should extend until
that date, when "it is medically indicated that significant
improvement from the injury is not anticipated." See Iowa
Code section 85.34(1). This theory postulates that Dr.
Pechacek has been proved incorrect in concluding that
claimant reached maximum benefit in 1991.
Thirdly, it could reasonably be determined that
claimant had sustained no permanent impairment whatsoever as
of May 17, 1991. Although Dr. Pechacek imposed medical
restrictions, he did so in large part on the basis of
claimant's functional capacity evaluation on May 10, 1991.
The occupational therapist, Melissa Pierce, noted as part of
that report:
Observed effort: Lifting performance on the
BTE Work Simulator and dynamically using Valpar 19
were not consistent and indicate full effort was
not given. Use of sensory muscles were not noted
throughout other testing procedures suggesting
full effort was not given consistently throughout
the evaluation.
This observation is also consistent with claimant's
demonstrated poor motivation to return to work. She did not
undergo work hardening (being "too busy") as recommended by
Dr. Pechacek. She did not cooperate with the Nebraska
Division of Vocational Rehabilitation in seeking work. It
appears that claimant has removed herself voluntarily from
the workforce.
All things considered, the first alternative seems most
reasonable. Notwithstanding claimant's questionable
motivation, the undersigned believes that she had and
continues to have functional limitations with respect to her
hands, even though it is difficult to measure that
disability because she limited her effort in the only
functional capacity evaluation given. Still, claimant
voluntarily underwent surgery. Generally speaking, people
Page 9
do not do so unless they hurt. Her complaints have
continued since then. Unfortunately, it is difficult to
quantify impairment given a scarcity of medical opinion
based on anything other than the AMA Guides. As noted, the
Guides are largely concerned with measuring loss of range
of motion. Functional loss can be manifested in other ways.
Dr. O'Neil, it will be recalled, estimated impairment at 5
percent, but did so in part due to Raynaud's phenomenon.
Both wrists are affected. An injury to the wrist is
considered an injury to the hand, not the arm. The hand
extends to the distal end of the radius and ulna, including
the carpus or wrist. Elam v. Midland Manufacturing, II IICR
141 (Appeal Decn. 1981). Under Iowa Code section
85.34(2)(l) and (s) the loss of a hand is compensated during
190 weeks, but the loss of both hands caused by a single
"accident" shall equal 500 weeks and be compensated as such.
Since both extremities are involved, claimant must be
compensated under section 85.34(2)(s). As Dr. Pechacek
points out in his letter of May 17, 1991, "(t)o a large
extent and unfortunately, these limitations and restrictions
cannot be converted to a percentage form." However, having
found that permanent impairment exists, the agency must do
so. On the basis of all the evidence, claimant has
sustained a permanent impairment to both hands equivalent to
10 percent of 500 weeks, or 50 weeks. Pursuant to the
parties' stipulation, the commencement date for those
benefits is May 10, 1991.
Claimant also seeks to be reimbursed for Dr. Blume's
charges. Actually, Dr. Blume was seen for evaluation, not
treatment. His charges, if compensable at all, fall under
Iowa Code section 85.39, not 85.27. In pertinent part, Iowa
Code section 85.39 provides:
If an evaluation of permanent disability has
been made by a physician retained by the employer
and the employee believes this evaluation to be
too low, the employee shall, upon application to
the commissioner and upon delivery of a copy of
the application to the employer and its insurance
carrier, be reimbursed by the employer the
reasonable fee for a subsequent examination by a
physician of the employee's own choice, and
reasonably necessary transportation expenses
incurred for the examination.
It is immediately evident that section 85.39 speaks to
a subsequent examination by a physician. Claimant is
entitled to a single such evaluation, not multiple
evaluations. As she concedes, claimant received an 85.39
examination from Dr. O'Neil prior to engaging her present
attorney. She is not entitled to a second 85.39 evaluation.
Defendants prevail on this issue.
DECISION
THEREFORE, IT IS ORDERED:
Defendants shall pay claimant fifty (50) weeks of
Page 10
permanent partial disability benefits at the stipulated rate
of two hundred seven and 44/100 dollars ($207.44) commencing
May 10, 1991.
Defendants shall have credit for all benefits
voluntarily paid prior to hearing.
All accrued benefits shall be paid in a lump sum
together with statutory interest.
Each party shall be responsible for its costs.
Signed and filed this ____ day of September, 1993.
______________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Richard D. Crotty
Attorney at Law
311 Metropolitan Federal Bk. Bldg.
Council Bluffs, IA 51503
Ms. Rita C. Grimm
Attorney at Law
200 Pioneer Bank Bldg.
P.O. Box 3086
Sioux City, IA 51102
1803, 1808
Filed September 15, 1993
David R. Rasey
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JODIE L. COAN,
Claimant,
vs.
File No. 947809
JOHN MORRELL & COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
HOME INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
1803, 1808
Treating surgeon imposed substantial medical
restrictions following wrist/thumb surgery, but assigned a
zero impairment rating under AMA Guides, since claimant had
full range of motion. Bilateral cumulative wrist injury was
compensated as 10 percent of 500 weeks under 85.34(2)(s).
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DENNIS ROMEO, :
:
Claimant, :
:
vs. :
: File No. 947894
WOODMARC, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
UNITED STATES FIDELITY & :
GUARANTY CO., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition of
claimant, Dennis Romeo, against his employer, Woodmarc, and its
insurance carrier, United States Fidelity and Guaranty Company,
defendants. The case was heard on May 6, 1993 at the office of
the industrial commissioner in Des Moines, Iowa. The record
consists of the testimony of claimant. The record also consists
of claimant's exhibits 1 and 2, as well as defendants' exhibits
a, b, c and d.
ISSUES
The issues to be determined are: 1) whether there is a
causal relationship between the work injury and any permanent
disability; 2) whether claimant is entitled to any healing period
or to any permanent partial disability benefits; and 3) whether
claimant is entitled to a reimbursement for costs.
FINDINGS OF FACT
The deputy, having heard the testimony and considered all
the evidence, finds:
Claimant is 46-years-old. He is a 1964 graduate of Lincoln
High School in Des Moines, Iowa. He is bright and quite
articulate. Claimant is a veteran of the United States Marine
Corps where he was engaged in field artillery. After his release
from the military, claimant attended the Madison Area Technical
College for one year. He studied accounting.
Subsequent to his year in college, claimant held a variety
of positions. He worked at Fawn Engineering as an assembler. He
Page 2
operated heavy equipment. He worked as a crew leader for Bullock
Garage Company where he was required to construct garages.
Claimant was plant manager for a cellulose manufacturer. His
duties included quality control, managerial responsibilities, and
maintenance. He also worked as a supervisor in inventory control
while he was living in Colorado.
Claimant moved to Montana where he established his own
construction company, D and D Construction. While operating his
own company, claimant bid on projects, built homes, remodeled
homes, built garages, supervised his crew, and conducted other
duties which were germane to running a construction business.
Claimant operated his own business until late summer of 1989.
In August of 1989, claimant returned to the Des Moines area.
He worked at Cimino Recycling Plant as the plant manager. There
he engaged in all types of supervisory duties. In January of
1990, claimant was terminated because of an illness.
Next, claimant was hired by defendant-employer. He was
hired as supervisor of the maintenance department. His duties
included, keeping the factory running smoothly, maintaining
oilers, saws, and motors, as well as changing the decor in the
furniture store which was operated by defendant-employer.
Claimant earned $22,000.00 per year.
The parties stipulated that claimant sustained a
work-related injury on April 30, 1990. At the time of the work
injury, claimant was assisting with the design of a new saw. He
and another employee were designing a prototype chop saw. The
saw consisted, in part, of a one half inch steel plate table
which weighed 250 to 300 pounds. Claimant was attempting to
screw into the table several 2 inch threaded legs. He was
working alone and trying to set the table upright when the table
slipped, and claimant grabbed it. At that time he felt severe
pains in his back. Moments later, several employees came to
assist claimant who was wincing in pain.
The work injury occurred at approximately 8:30 a.m. Claimant
attempted to work on that date but he was unable to complete his
shift. An agent for the employer authorized claimant to be seen
by the company doctor, J. Giddings, D.O. The physician treated
claimant conservatively and then referred him to Kirk Green,
D.O., of Iowa Orthopedic Center, P.C. Dr. Green prescribed
physical therapy for claimant.
Claimant did not participate fully in his physical therapy
program. As a consequence, the therapy was suspended.
Because claimant expressed continued pain in his low back
area, he was referred to Daniel J. McGuire, M.D., an orthopedic
surgeon. Dr. McGuire examined claimant on July 22, 1990. The
physician authored a report in which the physician opined that:
His x-rays are remarkable in that it looks like he may
have a pars defect at L5. It is not really easily seen
on the axial views of his CT scan and the sagittal
Page 3
views are questionable. This could explain some of his
back pain and also his left leg pain. It is hard to
tell the age of this and this may require a bone scan
with SPECT. I really see no evidence of a major disc
bulge or anything else major going on. We also see the
calcifications of the vessels on his film.
PHYSICAL EXAM: He has decreased sensation of his left
L5. He has weakness of his extensor halluces longus on
his left side. He has really questionable straight leg
raise or foot test. He has some discomfort in his calf
muscles at about 50 degrees with SLR and about zero
degrees with a slip test. Perhaps this is just some
tightness of his muscles. He has normal flexibility of
his lumbosacral spine. This is all on his left leg.
I had a talk with his Intracorp nurse. I had a talk
with the patient. The patient is upset with the
employer who calls him and tells him that he is faking
everything and he should come back to work. I don't
think that is a true statement, that he is faking it.
I think the pain is legitimate, it is just that we
don't have a simple answer for his pain. I told him
that I do not think surgery is the first option,
especially in light of his occupation. I told him he
needs to stop smoking. I think he needs to become
involved with physical therapy and a work-hardening
program. We will have to make an evaluation to see how
he does....
(Claimant's Exhibit 1, pages 17 & 18)
Dr. McGuire continued to treat claimant in a conservative
fashion. The physician again ordered psychical therapy. He also
ordered a CT scan and a MRI. The diagnostic tests revealed that:
CT of the lumbar spine:
...
The examination shows that the L3-L4 interspace is
normal. At the L4-L5 level, there is a protruding disc
pushing and narrowing the canal. The lateral recesses
are narrowed and the fat is partially replaced.
Relative stenosis of the canal at this level is
observed. The L5-S1 interspace appears normal. The
abdominal aorta shows some calcifications at the distal
end. Calcifications are also seen in the iliac
vessels.
IMPRESSION: Protruding disc and relative spinal
stenosis at the level of L4-L5 interspace.
...
MRI Lumbar Spine:
Page 4
...
L4-5: Loss of disc hydration and disc space.
Disruption of the annulus, with small central HNP.
This lies beneath an intact posterior longitudinal
ligament. There is slight indentation of the thecal
sac, without significant narrowing of the spinal canal.
Even with mild facet degeneration, L5 lateral recesses
are only mildly narrowed and fat has not been
obliterated. I do not identify definite nerve root
compression. L4 neural foramina are widely patent.
(Cl. Ex. 2, pp. 1 & 2)
Claimant did not cooperate fully with the physical therapy
which was prescribed by Dr. McGuire. The notes of Martin Ungs,
LPT, establish less than maximum effort on the part of claimant.
The notes also indicate that claimant missed appointments on
several occasions.
Mr. Ungs administered a functional capacities evaluation for
claimant. The results of the test are found in claimant's
exhibit 1, pages 7-12. Mr. Ungs summarized his opinion in the
"comments and recommendations." He opined:
Based on Mr. Romeo's functional capacity assessment,
Mr. Romeo falls within the Light Work category to ward
[sic] the Medium Work category. Light work category
includes lifting no more than 20 pounds on an
occasional basis and up to 10 pounds on a frequent
basis and typically requires standing and walking for
six hours out of an eight hour day. Medium work
category includes maximum occasional lifting up to 50
pounds and frequent lifting up to 25 pounds and
typically being on the feet a minimum of six hours out
of an eight hour day. Mr. Romeo may be most
appropriate for a job that falls within these
recommendations. Mr. Romeo has more difficulty sitting
than he does standing or walking. So, it may be most
appropriate for him to start out with the type of job
where he would be standing or walking and then spending
more time sitting and slowly working more into a
sitting type of job. Depending on the type of job Mr.
Romeo would be going into, it may be appropriate for
him to undergo work hardening in preparation for that
job. Mr. Romeo stated to me a number of job
experiences other than heavy labor that he may be
qualified to do. I urged him to pursue this route with
his vocational counselor in the future, and I'm sure
that will be taken care of.
(Cl. Ex. l, p. 12)
In August of 1991, Dr. McGuire rated claimant as having a
four percent permanent partial impairment. In support of his
writing, Dr. McGuire opined:
Page 5
He is a long ways out from his injury, he really hasn't
made any improvement. I would place no lifelong
permanent restrictions on him. I realize he has back
pain, I realize he has subtle abnormalities on his CAT
scan and MRI, but he has lived a year of his life
without dying from this, without this problem getting
worse by diagnostic study. By the AMA guidelines, we
are to assign a permanent partial disability rating.
Based on his subjective complaints of pain, his minimal
objective findings and his findings on his diagnostic
studies, his permanent partial disability rating would
have to be in the single digits. Some of his problems
probably predate his injury, therefore, I put his PPD
at 4%. Again, I don't see the evidence of a pars
defect I thought I saw on his plain films.
(Cl. Ex. 1, p. 27)
After claimant received an impairment rating from Dr.
McGuire, claimant obtained an independent medical examination
from Joseph Doro, D.O. Dr. Doro is a board certified
neurologist. He examined claimant on November 6, 1992. In his
report of the same date, Dr. Doro opined:
On sensation, there was a slight decrease of pinprick
along the dorsum of the foot on the left. This was in
a patchy area which was not reproducible. There is no
extinction. Gait and station are normal. The patient
walks on a normal base. No difficulties with
associated movements or postural reflexes. Muscle
stretch reflexes are equal and symmetric bilaterally.
There are no pathologic reflexes. There are no
meningeal signs and no cerebellar signs. There are no
bruits auscultated.
...
This man has a history of back injury and has had
pain since then. There are some components to the pain
as well as to some of his sensory symptoms which would
be consistent with mild nerve root irritation. His MRI
and his CT scan do show a protruding disc to the left.
In view of his symptoms, I would relate the pain
that he has to the injury that he had in April of 1991.
[sic]. Whether this is on a musculoskeletal basis or
whether this is secondary to the findings that are seen
on MRI and CT is not entirely clear to me. Certainly,
he has some symptoms suggestive of some mild nerve root
irritation, but in terms of motor abnormalities,
reflexes, straight leg raising, etc., these are
negative which one would expect to find some
abnormality if this were nerve root.
EMG could be done to further look at the potential
for motor involvement if this were radiculopathy and
also CT myelography would be another procedure to do to
Page 6
further delineate how much of his present symptoms are
secondary to structural abnormalities.
However, in view of the patient's feelings regarding surgery,
one can argue as to the merits of doing these other tests if it
is not going to change our treatment whatever the findings should
be.
I explained to the patient that from a treating point of view,
if he were my patient in that capacity since he is having such
debilitating problems and that he has not responded to
conservative therapy, that I would proceed with CT myelography as
well as EMG looking for a structural cause and if an operable
lesion were found, then I would consider that to be a strong
option in this situation.
However, that would be something that he would have to think
more about and discuss with his treating physician.
Otherwise, I don't think that there is much more to offer him
in terms of treatment since he has reached his maximum
improvement with the present conservative therapy.
(Defendants' Ex. D, p. 16)
In addition to the above physicians, claimant was also
examined on one occasion by Deems Ortega, Ph.D., a psychologist
who specializes in pain management. Dr. Ortega opined that
claimant would benefit from assisted relaxation training (Cl. Ex.
1, p. 6). Dr. Ortega also opined that claimant had various
psychological factors which were affecting his physical condition
(Cl. Ex. 1, p. 6).
During the course of his medical treatment, claimant was
informed that his employer no longer had a position which was
within the restrictions imposed by Mr. Ungs and Dr. McGuire.
Carla Summy, R.N., was assigned to manage claimant's case and to
chart claimant's progress. Ms. Summy provided a three page list
of job opportunities for claimant to pursue. At the hearing,
claimant testified that he had not sought employment since he was
injured, nor had claimant worked in any capacity, since the date
of the injury.
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 question of causal connection is essentially within the
domain of expert testimony. The expert medical evidence must be
considered with all other evidence introduced bearing on the
causal connection between the injury and the disability. The
weight to be given to any expert opinion is determined by the
finder of fact and may be affected by the accuracy of the facts
Page 7
relied upon by the expert as well as other surrounding
circumstances. The expert opinion may be accepted or rejected,
in whol body as a whole found by a
medical evaluator does not equate to industrial disability.
Impairment and disability are not synonymous. The degree of
industrial disability can be much different than the degree of
impairment because industrial disability references to loss of
earning capacity and impairment references to anatomical or
functional abnormality or loss. Although loss of function is to
be considered and disability can rarely be found without it, it
is not so that a degree of industrial disability is
proportionally related to a degree of impairment of bodily
function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to the
injury, immediately after the injury, and presently; the situs of
the injury, its severity and the length of the healing period;
the work experience of the employee prior to the injury and after
the injury and the potential for rehabilitation; the employee's
qualifications intellectually, emotionally and physically;
earnings prior and subsequent to the injury; age; education;
motivation; functional impairment as a result of the injury; and
inability because of the injury to engage in employment for which
the employee is fitted. Loss of earnings caused by a job
transfer for reasons related to the injury is also relevant.
Page 8
Likewise, an employer's refusal to give any sort of work to an
impaired employee may justify an award of disability. McSpadden
v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are
matters which the finder of fact considers collectively in
arriving at the determination of the degree of industrial
disability.
There are no weighting guidelines that indicate how each of
the factors are to be considered. Neither does a rating of
functional impairment directly correlate to a degree of
industrial disability to the body as a whole. In other words,
there are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw upon
prior experience as well as general and specialized knowledge to
make the finding with regard to degree of industrial disability.
See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 529 (App. March 26, 1985);
Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28, 1985).
Compensation for permanent partial disability shall begin at
the termination of the healing period. Compensation shall be
paid in relation to 500 weeks as the disability bears to the body
as a whole. Section 85.34.
The first issue to address is whether the work injury which
claimant sustained caused any permanent partial disability.
There is objective evidence to support claimant's low back
condition. Both the CT scan and the MRI establish minimal
abnormalities. Additionally, there is a small sensory loss in
claimant's left foot. Dr. McGuire opined claimant's condition
was real and that claimant was not faking it (Cl. Ex. 1, p. 18).
Dr. Doro also related claimant's low back condition to the work
injury in question (Dr. Doro's report of November 6, 1992).
Claimant has met the requisite causal connection to establish
that he has a permanent partial disability as the result of his
work injury on April 30, 1990.
The next issue to address is the nature and extent of
claimant's permanent partial disability. Dr. McGuire, who has a
reputation as a "very conservative evaluator," has rated claimant
as having a four percent permanent partial impairment. The
rating is the result of claimant's back condition. In addition
to the impairment rating, Dr. McGuire has restricted claimant to
light to medium work categories where he is not lifting more than
40 pounds on an occasional basis. The functional capacity
evaluation which has been conducted is consistent with the
restrictions imposed by Dr. McGuire. Claimant is capable of
handling duties in the light to medium work categories. The
evaluating physician, Dr. Doro, concurs with the opinion of Dr.
McGuire, relative to the work restrictions.
Claimant can engage in meaningful employment, although his
available labor market is now restricted. Previous to the work
injury, claimant had engaged in manufacturing and in construction
positions which involved work duties in the moderate to heavy
Page 9
work categories. His previous employment had also involved many
supervisory responsibilities. His job skills are transferable to
positions in the light and medium work classifications. It is
true that defendant employer is unwilling to accommodate
claimant, given his work restrictions. However, claimant is not
precluded from all types of positions.
It is acknowledged that prior to the work injury, claimant
had years of employment where the periods of employment were
sporadic or only covered partial years of employment. He has not
always earned wages at the high end of the scale.
It is quite clear to the undersigned that claimant has been
less than cooperative in his efforts to rehabilitate himself.
Claimant has not faithfully attended his physical therapy
sessions. He has missed many appointments. Claimant has not
cooperated with the nurse who had been assigned to assist
claimant in his rehabilitation. Claimant voluntarily terminated
the services of the rehabilitation nurse even though she had
presented claimant with numerous names and addresses of potential
employers in the Des Moines area. Claimant is totally
unmotivated to seek employment or even to attempt employment.
The undersigned deputy has observed many other claimants, with
far greater objective findings of impairment, who have been at
least willing to attempt rehabilitation. This deputy is not
impressed with the efforts of claimant. The efforts have been
minimal, at best. He is advised to explore the "psychological
factors which are affecting claimant's physical condition," and
which Dr. Ortega has briefly discussed in his report.
Claimant is intelligent. He is articulate. He is wasting
his talents. He has years of experience in supervising,
overseeing, and managing people. He has some knowledge of
accounting. Claimant has owned and operated his own business.
It is hoped that claimant will make use of his talents, as he has
potential.
Therefore, in light of the foregoing, as well as in light of
the testimony, and this deputy's observations of claimant, it is
the determination of the undersigned that claimant has a 15
percent permanent partial disability. He is entitled to 75 weeks
of permanent partial disability benefits at the stipulated rate
of $253.70 per week and commencing on the 31st day of October,
1990.
The next issue to address is the issue of healing period
benefits. Section 85.34(1) provides that healing period benefits
are payable to an injured worker who has suffered permanent
partial disability until (1) the worker has returned to work; (2)
the worker is medically capable of returning to substantially
similar employment; or (3) the worker has achieved maximum
medical recovery. The healing period can be considered the
period during which there is a reasonable expectation of
improvement of the disabling condition. See Armstrong Tire &
Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing
period benefits can be interrupted or intermittent. Teel v.
McCord, 394 N.W.2d 405 (Iowa 1986).
Page 10
Claimant is entitled to healing period benefits from April
30, 1990 through October 30, 1990. This is a period of 26.286
weeks of benefits at the stipulated rate of $265.53 per week.
ORDER
THEREFORE, it is ordered that:
Defendants shall pay unto claimant seventy-five (75) weeks
of permanent partial disability benefits at the stipulated rate
of two hundred sixty-five and 53/l00 dollars ($265.53) per week
and commencing on October 31, 1990.
Defendants shall pay unto claimant twenty-six point
two-eight-six (26.286) weeks of healing period benefits at the
stipulated rate of two hundred sixty-five and 53/l00 dollars
($265.53) per week.
Defendants shall take credit for all permanent partial
disability benefits previously paid to claimant.
Accrued benefits are to be paid in a lump sum together with
statutory interest at the rate of ten percent (10%) per year.
Costs are taxed to defendants pursuant to rule 343 IAC 4.33.
Defendants shall file a claim activity report as requested
by this division and pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of June, 1993.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Larry L. Miller
Attorney at law
2600 72nd Street,
Suite D
Des Moines, Iowa
Ms. Iris Post
Attorney at law
2222 Grand Avenue
PO Box 10434
Des Moines, Iowa 50306
1803
Filed June 22, 1993
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DENNIS ROMEO, :
:
Claimant, :
:
vs. :
: File No. 947894
WOODMARC, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
UNITED STATES FIDELITY & :
GUARANTY CO., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1803
Claimant sustained a work-related injury to his low back. The
injury occurred on April 30, 1990. There were some objective
findings to support claimant's low back condition, however, the
objective findings were minimal.
Claimant had many subjective complaints. There was some evidence
of a psychological overlay.
Dr. McGuire, the treating physician, rated claimant as having a
permanent partial impairment of 4 percent. The evaluating
physician did not asses a permanent partial impairment. He did
concur with Dr. McGuire, relative to the restrictions which were
imposed. Claimant was precluded from any lifting greater than 40
pounds. Defendant-employer refused to accommodate claimant,
given the restrictions imposed.
Claimant was unmotivated. He put little time and effort into the
physical therapy which two physicians had ordered on separate
occasions. Claimant voluntarily terminated the services he was
receiving from the registered nurse who had been hired to assist
in claimant's rehabilitation. Claimant was supplied with a list
of potential job openings. He refused to apply for the jobs
listed. Claimant sought no employment opportunities on his own.
He had not worked since the date of the work injury.
Claimant was bright and articulate. He had supervisory skills
which were transferable. He had some knowledge of accounting and
bookkeeping. Previous employment had been sporadic but claimant
had managed his own construction business. Meaningful employment
is available to him. Claimant refuses to assist in his own
rehabilitation.
HELD: Claimant has sustained a 15 percent permanent partial
disability as a result of his work injury.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
BETTY MADDOCKS,
Claimant,
vs.
File No. 948414
GLENWOOD STATE HOSPITAL-
SCHOOL,
A P P E A L
Employer,
D E C I S I O N
and
STATE OF IOWA,
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 decision of the deputy filed
March 3, 1993 is affirmed and is adopted as the final agency
action in this case.
Defendants shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of December, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Sheldon M. Gallner
Attorney at Law
P.O. Box 1588
Council Bluffs, Iowa 51502
Mr. James F. Christensen
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg.
Des Moines, Iowa 50319
5-1803
Filed December 20, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
BETTY MADDOCKS,
Claimant,
vs.
File No. 948414
GLENWOOD STATE HOSPITAL-
SCHOOL,
A P P E A L
Employer,
D E C I S I O N
and
STATE OF IOWA,
Insurance Carrier,
Defendants.
____________________________________________________________
5-1803
Claimant (61 years of age) awarded 30 percent industrial
disability. She was an RN who had worked for more than 17
years for the Glenwood State Hospital School.
Restrictions included an eight percent functional
impairment, no lifting of more than 30 pounds, and no
repetitive bending, lifting or twisting.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
BETTY MADDOCKS, :
:
Claimant, :
:
vs. :
: File No. 948414
GLENWOOD STATE HOSPITAL :
SCHOOL, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by
claimant, Betty Maddocks, against her former employer,
Glenwood State Hospital School, and the State of Iowa. The
matter came on for hearing before the undersigned deputy
industrial commissioner on February 3, 1993, at Council
Bluffs, Iowa.
The evidence in the case consists of testimony from the
claimant, Emma Jo Hammers, Earl Maddocks III, Earl Maddocks,
Jr., Barbara Slama, and Judith Anglen; claimant's exhibits 1
through 13; and, defendants' exhibits A through E.
ISSUES
In accordance with the prehearing report submitted by
the parties at the hearing, the following issues are
presented for resolution:
1. Whether claimant sustained an injury on April 18,
1990, which arose out of and in the course of her
employment;
2. Whether there is a causal relationship between
claimant's alleged injury and her disability;
3. Whether claimant is entitled to permanent partial
disability benefits; and,
4. Whether claimant is an odd-lot employee.
Page 2
FINDINGS OF FACT
The undersigned deputy having reviewed all of the
evidence received finds the following facts:
Claimant, Betty Maddocks, was born on April 21, 1931.
At the time of the hearing, she was 61 years of age.
Claimant has been married for 43 years, and has five
children, none of whom are dependents. Claimant stated that
she maintains a good relationship with her children,
although due to her alleged injury and subsequent physical
condition is unable to travel extensively to visit them.
However, claimant did attend her youngest son's wedding in
Alaska, an event which took place in June of 1991, and took
vacation trips to several other states, including Wisconsin,
Florida and Nevada in 1991 and 1992.
Claimant, who is a high school graduate, earned her
licensed practical nursing degree in 1969 from Iowa Western
Community College. In 1984, at the age of 53, claimant
obtained her registered nursing degree from the College of
St. Mary. Claimant stated that obtaining her nursing degree
was a "life long dream."
Claimant was a very motivated student, as she continued
working the night shift at the Glenwood State Hospital
School while she was studying to become a nurse. It was
evident that claimant was rightfully very proud of her
accomplishments.
Claimant had been an employee at the defendant Glenwood
State Hospital School for approximately seventeen and
one-half years before her alleged accident in April 1990.
All of the residents at the hospital are mentally
and/or physically challenged. There are three
classifications of workers in the health care field at the
school. A resident treatment worker (RTW) provides daily
care for the clientele in the form of bathing clients,
transporting them from the recreation class to their rooms,
feeding them and teaching classes. The LPNs and RNs, the
two other classes of professionals, provide medical care to
the patients in the form of assessments and evaluations, and
also assist with teaching procedures for the clients. At
some time or another, claimant has held each of these three
positions. Claimant had enjoyed her career with the school,
and had not planned on retiring at age 62.
From approximately 1980 until April of 1990, claimant
was assigned to the night shift which began at 10:15 p.m.
and ended at 6:15 a.m. She viewed the shift as one which
did not require the physical demands as those workers who
were assigned to the day or p.m. shifts. Claimant explained
that because the clients were usually asleep and were
contained in the various units on the campus, assessments
and evaluations were easier to perform, and the workers were
not required to walk around the campus as much during the
night shift.
On April 18, 1990, at approximately 6:00 a.m., claimant
Page 3
was working in the hospital area. Claimant was attempting
to care for a female client who was visibly upset. Claimant
stated that the client reached up and grabbed claimant by
the collar and jerked her forward. By attempting not to
fall on top of the client, claimant pulled back and twisted
her shoulders and low back. She felt a sharp pain in her
low back and reported the incident to the appropriate
personnel the same day. Claimant continued to have pain the
following day but reported to work. She first sought
medical treatment on April 25, 1990, when she visited the
emergency room at Jennie Edmundson Hospital in Council
Bluffs, Iowa. She was treated by Behrouz Rassekh, M.D., a
neurologist. His notes, mostly illegible, indicate that
claimant was to return to work on May 2, 1990 (Defendants'
Exhibit D(1)).
Claimant returned to Dr. Rassekh on May 1 and continued
to complain of pain in her low back. Dr. Rassekh
recommended she use a heating pad and ordered physical
therapy. He also prescribed orudis (Def. Exs. D(1) and
D(2)).
The defendants referred claimant to Back Care, Inc.,
for physical therapy where she came under the care of Frank
P. LaMarte, M.D. Her first visit was on May 10, 1990, and
her chief complaints were of low back pain, left hip pain
and occasional dull pain in the left anterior thigh.
According to the claimant, this pain affected sleeping,
driving, standing, sitting, bending, lifting and housework
activities on a daily basis. Dr. LaMarte's examination
revealed tenderness over the left S1 joint and over the
lower lumbar spine on the left side. Claimant reported some
low back discomfort while performing a straight leg test on
the left side. Dr. LaMarte's impression was that of acute
low back pain probably secondary to myofascial strain. He
recommended an x-ray of the lumbar spine and prescribed a
stretching and strengthening exercise program. Eventually,
claimant was to move into an active rehabilitation program
with utilization of passive physical therapy modalities
including ultrasound and cold and hot packs. She was to
undergo treatment for six to eight weeks and the prognosis
was guarded due to claimant's weight. Claimant is five feet
one and one-half inches tall and weighs approximately 240
pounds (Cl. Ex. 2(i), pp. 1-2).
Claimant returned to Dr. LaMarte on May 31, 1990, and
was started on a home exercise program. Dr. LaMarte
released claimant to return to work on June 4, 1990, with
restrictions of no lifting. Claimant was to be given the
opportunity to sit and stand when necessary, and he
recommended that she be assigned to office desk-type work
(Cl. Ex. 2(h)).
Claimant returned to Dr. LaMarte on June 26, 1990,
complaining of an exacerbation of her symptoms. She had not
returned to work, and Dr. LaMarte recommended an MRI scan of
the lumbar spine (Cl. Ex. 2(g)). The results of the MRI
scan revealed a herniated disc at the L1-2 level,
spondylolisthesis at the L5-S1 level and bilateral foraminal
stenosis at the L5-S1 level. Dr. LaMarte referred claimant
Page 4
to John L. Fox, M.D. (Cl. Ex. 2(f)). Dr. Fox reviewed the
MRI scan and concurred that spine changes were consistent
with an L1-2 disc herniation and diffuse bulging of the disc
at the L5-S1 level. He also noted mild spondylolisthesis at
the L5-S1 level. However, he believed that these defects
were "incidental to her complaints of pain." He believed
her complaints stemmed from the spondylolisthesis condition,
and diagnosed chronic low back strain, obesity,
psychophysiologic musculoskeletal reaction. He recommended
an orthopedic evaluation and possible treatment from the
pain clinic at the University of Nebraska Medical Center
(Cl. Ex. 3, pp. 1-2)).
Claimant was then sent to Michael T. O'Neil, M.D. He
reviewed claimant's x-rays and agreed that claimant
displayed Grade I spondylolisthesis of the L5-S1. Although
he did not believe claimant was a candidate for surgery, he
did recommend further conservative treatment. He also
agreed with Dr. Fox's assessment that claimant had a
psychosomatic functional overlay or physiological
musculoskeletal reaction. He suggested claimant lose weight
and continue therapy (Cl. Ex. 4(b), pp. 1-3; Def. Ex. E(1).
Dr. O'Neil was of the opinion that claimant had an 8 percent
permanent impairment of the body as a whole as a result of
an injury "superimposed on a preexisting nonsymptomatic
Grade I spondylolisthesis of L5, S1." He imposed activity
restrictions of no repetitive stooping, twisting or bending
and no lifting of more than 25 to 30 pounds repetitively
(Cl. Ex. 4(a)).
Claimant then returned to Dr. LaMarte whose last
report, dated December 4, 1990, provides the following
information:
MRI scan performed 6/28/90 did reveal a mild
spondylolisthesis at the L5,S1 level. This would
be consistent with a Grade I spondylolisthesis.
The AMA Guide Guide [sic] to the Evaluation of
Permanent Impairment, Third Edition, states that a
Grade I spondylolisthesis accompanied by medically
documented injury and a minimum of six months of
medically documented pain, recurrent muscle spasm,
or rigidity results in a permanent impairment of
the body as a whole.
My examinations have failed to reveal a
recurrent muscle spasm or rigidity. In my
opinion, there is a significant emotional
component associated with her pain and this makes
it very difficult to determine how much true pain
she is experiencing. In my opinion her reported
work related injury dated 4/18/90 did not cause
her spondylolisthesis.
....
Based on her subjective complaint and not on
any objective findings, I doubt that she will be
able to perform any heavy manual labor. I do not
feel I can outline any specific restrictions
Page 5
since, in my opinion, we are dealing more with an
emotional response to pain rather than a physical
response.
(Cl. Ex. 2(a))
Claimant has also been treated by Harris A. Frankel,
M.D, a neurologist in Omaha, Nebraska. His involvement
included an overall neurological examination which did not
produce abnormal findings except minimal discomfort when
claimant performed straight leg raising tests on the right.
Dr. Frankel agreed that the results of the MRI revealed a
bulging disc at the L1-2 level and diffuse bulging at L5-S1.
He also noted Grade I spondylolisthesis. His final analysis
was that claimant had sustained an 8 percent functional
impairment of the whole person. He recommended that
claimant avoid frequent and/or repetitive bending, stooping,
twisting, and lifting of anything weighing more than 30
pounds (Cl. Ex. 1(c)-1(g)). Specifically, Dr. Frankel was
concerned about claimant's ability to lift a stretcher from
an emergency van. He advised that she avoid lifting more
than 150 pounds from a heighth of 34 inches. He was of the
opinion that claimant would be able to perform CPR, driving
duties, stepping up into an emergency vehicle with a step 16
inches off of the ground, and walking about the campus to
make rounds (Cl. Ex. 1(b)). In May of 1991, claimant
returned to Dr. Frankel with continued complaints of low
back pain. Claimant felt that her low back pain had
increased due to the requirements of the daytime shift (Cl.
Ex. 1(a)).
Dr. Rassekh wrote a series of reports dated September
13, 1991; September 30, 1991; March 26, 1992; and, April 7,
1992. In summation, he expressed his opinion that based on
his treatment from April 20 to May 8, 1990, and a March 20,
1992 examination, he believed claimant had sustained an 8
percent impairment due to chronic back pain resulting from a
soft tissue injury. He believed claimant's weight also
aggravated her back condition. Dr. Rassekh recommended that
claimant not return to work as a nurse due to the lifting
and repeated bending required by the duties (Cl. Ex. 5(a)-
5(d)).
With Dr. Frankel's assessment in mind, a personnel
committee at the hospital decided claimant would be
transferred to the day shift. Ms. Slama, who was part of
the committee that recommended the transfer, felt the
transfer was reasonable to accommodate claimant's condition.
The general tone of both Ms. Slama's and Judith Anglen's
testimony is that there is more likelihood that claimant
would be required to lift a stretcher if she were working
the night shift as opposed to exposure to lifting a
stretcher if she were working the day shift. Claimant
testified that this would not be the case, and that she had
never been required to lift a stretcher while working the
night shift.
In any event, claimant attempted to return to work on
Page 6
the day shift in April of 1991. She was able to work for
only several days. She stated that the pain was so severe
that she was unable to continue working the day shift.
Eventually, claimant was formally terminated.
Defendants submit that they were particularly concerned
with claimant's health and safety because once she returned
to work she filed six accident reports. Claimant explained,
and defendants concurred that the hospital's policy mandated
employees to document every or almost every type of accident
and/or injury sustained at the facility. Given the nature
and environment of the facility, the number of incident
reports filled out by claimant does not appear to be
excessive (Def. Ex. 11).
In May of 1991, claimant was referred to Patrick W.
Bowman, M.D, at the advice of her family physician, Robert
K. Fryzek, M.D. Dr. Bowman also obtained thoracic and
lumbar spine x-rays. He felt claimant had spondylosis of
the dorsal spine, degenerative disc disease of the lumbar
spine and a possible spondylolysis at the L5 level. No
surgery was recommended and Dr. Bowman suggested claimant
learn to "live with the condition expecting better days in
the future." (Cl. Ex. 6(1) through 6(4)).
In March of 1992, claimant received an additional
neurological examination by Dr. Rassekh. He noted
"ante-flexion" of the spine and believed claimant had a
chronic back pain condition due to a soft tissue injury. He
agreed that claimant had an 8 percent disability rating. He
also stated:
The patient was advised to have psychological
assessment to determine how much of her pain is on
the organic basis and how much is functional. I
did not recommend psychiatric treatment but only
psychological evaluation so that we will be in
better position to state if she needs long-term
psychiatric treatment.
(Cl. Ex. 5(b))
Dr. Rassekh attributed some of claimant's pain to her
weight (Cl. Ex. 5(a)).
Claimant underwent a work capacity evaluation in May of
1992. Apparently, claimant was able to complete the
pre-evaluation interview, but when the evaluation exercises
started, claimant was unable to complete a hand grip
strength test and a push-pull dynamometer test at which
point she became weepy and was complaining of severe pain.
The remainder of the physical testing evaluation was
rescheduled for June 5, 1992. When claimant left the
clinic, she was admitted to the psychiatric unit at Jennie
Edmundson Hospital in Council Bluffs, Iowa. Claimant was
disoriented, could not remember where she was and could not
recall undergoing any of the work evaluation procedures.
She was discharged from the hospital despite objections from
the attending physicians. The final diagnosis was that of
probable conversion disorder and chronic pain syndrome (Cl.
Page 7
Ex. 8(b), 8(c)).
Claimant subsequently reported to the Working Back
Institute again in June of 1992. During this visit, she was
able to complete the evaluation, but the physical therapist,
Karen Brown, stated that claimant did not pass the validity
profile and produced submaximal effort. Ms. Brown noted
that claimant had extreme anxiety over her pain and was
apprehensive about reinjury and therefore exhibited
submaximal efforts during the evaluation. Minimal
capacities were that claimant would be able to sit for an
hour, walk for brief periods of time, occasionally use
stairs, five pounds of lifting or carrying at the hip to
chest level and only intermittent and limited bending. Ms.
Brown stated that claimant had a poor tolerance for
standing, poor hand grip strength and subnormal hand
dexterity skills (Cl. Ex. 10(b)).
In June of 1992, claimant underwent a vocational
evaluation and earnings capacity assessment performed by a
counselor associated with Midlands rehabilitation
consultants in Omaha, Nebraska. At the end of the
interview, the counselor, James Rogers, stated that claimant
would not be a candidate for any type of vocational
rehabilitation services. He felt claimant was in need of
further medical treatment, specifically, psychiatric
treatment followed by treatment at a pain center (Cl. Ex.
11).
Claimant has not returned to work at the Glenwood State
Hospital-School, and has applied for positions at the
following health care facilities: Jennie Edmundson
Hospital; Mercy Hospital, Omaha, Nebraska; Clarkson
Hospital, Omaha, Nebraska; and, Methodist Hospital, Omaha,
Nebraska (Cl. Ex. 12). She has not been hired by any of the
institutions.
Claimant has had some psychiatric problems in the past.
Throughout the medical records received for this case, there
have been numerous references to a potential diagnosis of
conversion disorder. Also, it has been recognized that
claimant has a function overlay component to her symptoms.
Claimant has also been diagnosed as being depressed, and it
has been recommended that she seek psychiatric treatment.
Michael Taylor, M.D., a psychiatrist located in Des
Moines, reviewed claimant's medical records and determined
that she was suffering from a major depressive disorder
unrelated to the accident on April 18, 1990 (Def. Ex. F).
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to be addressed is whether claimant
sustained an injury on April 18, 1990, which arose out of
and in the course of her employment.
An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).
Page 8
Claimant has the burden of proving by a preponderance
of the evidence that she received an injury on April 18,
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 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 (l963) 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.
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 19791); Crowe, 246 Iowa
402, 68 N.W.2d 63 (1955).
"An injury occurs in the course of the employment when
it is within the period of employment at a place the
employee may reasonably be, and while he is doing his work
or something incidental to it." Cedar Rapids Comm. Sch.
Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188
N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128.
Although an incident report for the April 18, 1990
injury is probably the only report which was not introduced
into evidence by either party, the undersigned finds that
claimant was able to describe the incident with specificity
and clarity. Given the nature of her work as a registered
nurse at the facility, claimant encountered patients or
clients with varying degrees of mental challenges. She was
working her regular shift and performing the duties required
of her position. She stated that she filled out an incident
report on the same day as the policy at the facility was to
report any injuries within 24 hours of the occurrence.
Likewise, the medical evidence is consistent with an injury
date on or about April 18, 1990.
As a result, it is found that claimant did sustain an
injury while at work on April 18, 1990, which arose out of
and in the course of her employment.
The next issue to be addressed is whether there is a
causal relationship between claimant's injury and her
disability.
The claimant has the burden of proving by a
preponderance of the evidence that the injury of April 18,
1990, is 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
Page 9
domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154
N.W.2d 128.
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal
connection, such testimony may be coupled with nonexpert
testimony to show causation and be sufficient to sustain an
award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146
N.W.2d 911, 915 (1966). Such evidence does not, however,
compel an award as a matter of law. Anderson v. Oscar Mayer
& Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish
compensability, the injury need only be a significant
factor, not be the only factor causing the claimed
disability. Blacksmith v. All-Amnerican, Inc., 290 N.W.2d
348, 354 (Iowa 1980).
While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, the mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900,
908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a
preexisting condition or disability that is aggravated,
accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815
(1962).
Claimant submits that prior to the injury on April 18,
she was able to fully perform her job duties as a registered
nurse assigned to the night shift. Indeed, the evidence
supplied to the undersigned supports a finding that claimant
has sustained a disability due to the condition of her back
subsequent to the work injury. Claimant has missed a
substantial amount of work. Several physicians have the
opinion that she sustained an 8 percent functional
impairment to the body as a whole. Drs. Rassekh and Frankel
both are of the opinion that the injury caused the
disability.
Although defendants argue that claimant had a
preexisting condition of spondylolisthesis and other
degenerative changes, the evidence is clear that an MRI
performed shortly after the incident at work showed that
claimant also had a bulging disc at the L5-S1 level. That
claimant had preexisting conditions is irrelevant, as an
injury on the job which aggravates an asymptomatic condition
Page 10
is compensable.
Likewise, there is ample evidence in the record which
supports a finding that claimant has sustained a permanent
injury, and is entitled to healing period benefits as
governed by Iowa Code section 85.34(1).
The next issue to be addressed and whether claimant is
an odd-lot employee.
In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa
1985), the Iowa court formally adopted the "odd-lot
doctrine." Under that doctrine 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." Guyton, 373 N.W.2d at 105.
When viewing the record as a whole, and especially
considering claimant's educational background, she cannot be
described as an odd-lot employee. It appears that with
claimant's restrictions, she is able to perform most of the
activities of an RN. Her lifting capabilities will inhibit
her ability to perform work as she has in the past. The
defendant hospital tried to accommodate her restrictions,
and apparently felt that claimant would be able to perform
her duties within her restrictions. Claimant's complaint
about her new assignment rested with the amount of walking
she was required to perform on the day shift.
Claimant has not established by a preponderance of the
evidence that she is not employable in the competitive labor
market.
However, as claimant has sustained a permanent injury
to the body as a whole, an analysis of her industrial
disability is warranted.
At the time of her injury, claimant was almost 59 years
of age. She is a high school graduate and has earned LPN
and RN degrees. She had worked in the health care field for
more than 17 years.
Claimant's physical condition prior to the accident was
good, if not excellent. She was able to perform all job
duties required by her position as an RN. Defendants
attempted to accommodate claimant's physical limitations by
moving her from the night shift, where the need to lift a
stretcher is greater than on other shifts, to the day shift,
where more help would be available to claimant.
As pointed out by the defendants, and corroborated by
the medical evidence, claimant has a preexisting condition
called spondylolisthesis, as well as some arthritic changes
in the spine. These conditions, however, were asymptomatic
prior to the April 18, 1990 incident.
Claimant also has a herniated disc at the L1-2 level
Page 11
and diffuse bulging of the disc at the L5-S1 of the lumbar
spine. Although the undersigned recognizes that the
incident at work did not cause claimant's spondylolisthesis,
it is found that the claimant's physical problems manifested
themselves due to the work injury. Since the injury, she
has not returned to gainful employment.
Claimant's work restrictions encompass several
activities. Drs. O'Neil and Frankel both opine that
claimant should refrain from lifting more than 30 pounds,
and recommended that claimant not perform repetitive
bending, stooping or twisting. Dr. Frankel was mostly
concerned with claimant's ability to lift a stretcher, and
recommended that she not perform this activity.
Dr. LaMarte, after reviewing the results of the MRI
scan, felt that the defects found in claimant's spine were
incidental to her complaints of pain.
No one has recommended surgery. All physicians who
have treated claimant have indicated that there is a
definite emotional reaction to her physical condition. Most
have suggested a functional overlay.
Claimant has gone through a long healing process.
Although at several times during the period, she was
released to return to work either for full job duties or
restricted duties. It was not until April of 1991 that she
did attempt to return to work, an attempt which lasted for
four or five days.
Two physicians also rendered opinions with respect to
claimant's functional impairment. Drs. O'Neil and Frankel
both thought claimant had sustained an 8 percent functional
impairment due to the injury.
Perhaps the most troubling aspect of the case is
claimant's emotional response to the injury. While
defendants argue that she had preexisting psychiatric
problems, she had not been treated for the same during the
three and one-half years prior to the injury. In fact, it
seems claimant was an exemplary employee, even though Ms.
Slama indicated it was hard to depend on claimant due to her
loss of time from work for one reason or another. This
latter fact is not supported by the evidence.
Emotional stability is one of many factors to evaluate
when determining claimant's industrial disability. Even
though claimant had prior psychological problems, she had
not received treatment for the same since 1986.
Given her age and the nature of her injury, coupled
with claimant's past work experience, it is doubtful she
will be an attractive candidate for employment as a nurse.
It is unfortunate that defendants' attempt to accommodate
claimant's physical limitations reached only as far as
placing her on a different shift. One physician recommended
a desk job, yet no attempt was made to allow claimant to
work in a role less demanding than that as an RN. Perhaps
claimant's most severe restriction is the 30 pound lifting
Page 12
restriction. It is difficult to believe that claimant's
position with the facility would not consistently place her
in a position that would require lifting ability of more
than 30 pounds.
After considering all of the factors that have been
enumerated in the decision, it is found that claimant has
sustained a 30 percent industrial disability.
ORDER
THEREFORE, it is ordered:
Defendants shall pay unto claimant permanent partial
disability for one hundred fifty (150) weeks at the rate of
three hundred forty-two and 44/100 dollars ($342.44) per
week beginning March 26, 1992.
Defendants shall pay all medical bills incurred due to
this accident.
That defendants shall pay the accrued weekly benefits
in a lump sum, and receive credit for benefits previously
paid.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Page 13
Signed and filed this ____ day of March, 1993.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Sheldon M Gallner
Attorney at Law
803 Third St
P O Box 1588
Council Bluffs IA 51502-1588
Mr James F Christenson
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg
Des Moines IA 50319
5-1802
Filed March 3, 1993
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
BETTY MADDOCKS, :
:
Claimant, :
:
vs. :
: File No. 948414
GLENWOOD STATE HOSPITAL :
SCHOOL, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1801
Claimant (61 years of age) awarded 30% industrial
disability. She was an RN who had worked for more than 17
years for the Glenwood State Hospital-School.
Restrictions included an 8% functional impairment, no
lifting of more than 30 pounds, and no repetitive bending,
lifting or twisting.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
MARIA E. VALDES, :
:
Claimant, :
:
vs. :
: File No. 948422
IOWA STATE UNIVERSITY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
The aforecaptioned case was set for hearing at the office of
the Industrial Commissioner on May 27, 1992. The parties,
through their attorneys, entered into a stipulation whereby they
agreed to a running award for the duration of claimant's period
of disability.
ORDER
THEREFORE, IT IS ORDERED:
Defendant is to pay unto claimant a running award for weekly
benefits for the duration of claimant's period of disability with
said benefits commencing on February 24, 1990 and running contin
uously through the period of disability at the stipulated rate of
two hundred sixty-seven and 28/l00 dollars ($267.28) per week.
Defendant shall take credit for benefits previously paid
claimant.
Accrued benefits are to be paid in a lump sum together with
statutory interest at the rate of ten percent (10%) per year pur
suant to section 85.30, Iowa Code, as amended.
Costs are taxed to defendant pursuant to rule 343 IAC 4.33.
Defendant shall file a claim activity report as requested by
this division pursuant to rule 343 IAC 3.l.
Signed and filed this ____ day of July, 1992.
Page 2
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Marvin E. Duckworth
Ms. Jane E. Van Werden
Attorneys at Law
Terrace Center STE 111
2700 Grant Avenue
Des Moines, Iowa 50312
Mr. Charles S. Lavorato
Assistant Attorney General
Tort Claims Division
Hoover State Office Building
Des Moines, Iowa 50319
1400; 1402
Filed July 24, 1992
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
MARIA E. VALDES, :
:
Claimant, :
:
vs. :
: File No. 948422
IOWA STATE UNIVERSITY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendant. :
___________________________________________________________
1400; 1402
Claimant failed to appear at his previously set hearing.
No evidence in support of his allegations of a compensable
work injury was presented. Claimant failed to meet his
burden of proof.