BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
TONYA PIERSON,
Claimant,
vs.
File No. 951206
O'BRYAN BROTHERS,
A P P E A L
Employer,
D E C I S I O N
and
WAUSAU INSURANCE,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the deputy
and all exhibits admitted into the record, has been reviewed de novo on
appeal. The decision of the deputy filed July 8, 1994 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 January, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert W. Pratt
Attorney at Law
6959 University Avenue
Des Moines, Iowa 50311
Mr. E. J. Kelly
Attorney At Law
2700 Grand Ave., Ste 111
Des Moines, Iowa 50312
5-1802; 5-1803; 1807
Filed January 20, 1995
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
TONYA PIERSON,
Claimant,
vs.
File No. 951206
O'BRYAN BROTHERS,
A P P E A L
Employer,
D E C I S I O N
and
WAUSAU INSURANCE,
Insurance Carrier,
Defendants.
_________________________________________________________________
5-1802
Claimant was awarded healing period benefits from the time she was
taken off work by the treating physician until a later orthopedic
surgeon determined that he had exhausted conservative treatment
measures, surgery was not indicated and claimant had minimal, if any,
permanent impairment.
5-1803; 1807
Impairment ratings for the shoulder were (1) minimal, if any, (2) five
percent, (3) five percent and (4) seven percent. Claimant, age 29 at
the time of injury, with a high school education, was foreclosed from
repetitive work, overhead work, and restricted to light work at
tabletop level. She was working full-time managing her parents video
store and also going to college full-time with a GPA of 3.48. Her
actual earning loss calculated out at 22 percent by one method and 30
percent by another method. Although employer's physician approved two
jobs for her, employer nevertheless refused to offer claimant these
jobs, or any employment. Employer offered no rehabilitation to
mitigate their industrial disability. Although claimant's impairment
ratings were not substantial, nevertheless, her industrial disability
was substantial. Claimant was awarded 30 percent industrial
disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
TONYA PIERSON,
Claimant,
vs.
File No. 951206
O'BRYAN BROTHERS,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
WAUSAU INSURANCE,
Insurance Carrier,
Defendants.
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration filed by Tonya
Pierson, claimant, against O'Bryan Brothers, employer, and
Wausau Insurance, insurance carrier, defendants for
benefits as the result of an injury which occurred on April
30, 1990. A hearing was held in Des Moines, Iowa on
November 10, 1993, and the case was fully submitted at the
close of the hearing. Claimant was represented by Robert W.
Pratt. Defendants were represented by E. J. Kelly. The
record consists of the testimony of Tonya Pierson, claimant,
claimant's exhibits 1 through 55, minus exhibits 6, 7 & 8,
which were withdrawn at the time of the hearing (Transcript
pages 105-121), and defendants' exhibits 1 through 4 (Tran.
pp. 8 & 25). The deputy ordered a transcript of the hearing
(Tran. pp. 103 & 104). Both attorneys submitted excellent
post-hearing briefs (Tran. pp. 104 & 105).
PRELIMINARY MATTER
Claimant contends that she sustained permanent
disability to her right shoulder and to her right wrist.
Although the right wrist symptoms first appeared in May of
1989 and the right shoulder symptoms first appeared in May
of 1990, the parties stipulated and have submitted this case
as one injury which occurred on April 30, 1990.
One of the major areas of dispute is whether the injury
to the right wrist was the cause of carpal tunnel syndrome
and the resulting permanent disability due to carpal tunnel
syndrome of the right wrist.
The original notice and petition which was filed on
January 15, 1992, alleges only an injury to both shoulders,
neck and back from cumulative action of repeated shoulder
movements while verifying pin tickets. The petition was not
amended prior to the hearing or at the time of hearing on
Page 2
November 10, 1993, to mention an injury to the right wrist.
However, technical rules of pleading are not followed in
workers' compensation proceedings.
Defendants stipulated that claimant did sustain an
injury on the hearing report which occurred on April 30,
1990. This stipulation extends to both the injury to the
right shoulder and the right wrist because both parties
obtained evidence during the discovery process about the
right wrist, submitted that evidence at the hearing and
requested a determination of whether the right wrist injury
was the cause of permanent disability due to carpal tunnel
syndrome of the right wrist.
The evidence supports the fact that claimant did
sustain an injury to her right wrist which was described as
right wrist pain which arose out of and in the course of
employment with employer. However, the only issue to be
decided in this case with respect to the right wrist is
whether the injury was the cause of carpal tunnel syndrome
and any resulting permanent disability or medical treatment
from carpal tunnel syndrome.
STIPULATIONS
The parties stipulated to the following matters.
That claimant sustained an injury on April 30, 1990,
which arose out of and in the course of employment with
employer.
That the proper rate of compensation in the event of an
award is $175.94 per week.
ISSUES
The parties submitted the following issues for
determination at the time of the hearing.
Whether the injury was the cause of either temporary or
permanent disability.
Whether claimant is entitled to either temporary or
permanent disability benefits, and if so, the nature and
extent of benefits to which she is entitled, to include
whether claimant is entitled to scheduled member benefits
for an injury to a scheduled member, or whether claimant is
entitled to industrial disability benefits for an injury to
the body as a whole.
Whether claimant is entitled to the payment of medical
benefits for the evaluation and treatment of Douglas S.
Reagan, M.D., in the amount of $295 (Exhibit 54, page 89).
Whether claimant is entitled to a second independent
medical examination from Martin S. Rosenfeld, D.O., in the
amount of $790, under the facts of this case (Ex. 55, p.
90).
Page 3
CAUSAL CONNECTION/ENTITLEMENT
temporary and permanent disability
It is determined that the injury to claimant's right
wrist was not the cause of either temporary or permanent
disability.
It is further determined that the injury to the right
wrist was not the cause of carpal tunnel syndrome and that
claimant is not entitled to permanent disability benefits or
medical treatment caused by the carpal tunnel syndrome.
It is determined that the injury to the right shoulder
was the cause of both temporary and permanent disability to
the right shoulder and that claimant is entitled to both
temporary and permanent disability benefits for the injury
to the right shoulder.
It is determined that claimant is entitled to healing
period benefits from May 18, 1990, when claimant was taken
off work by Carl E. Rouse, M.D., until March 13, 1991, when
Joshua D. Kimelman, D.O., determined that claimant had
sustained maximum medical improvement and gave his
conclusions on the amount of permanent impairment.
It is determined that claimant has sustained a 30
percent industrial disability to the body as a whole and
that claimant is entitled to 150 weeks of permanent partial
disability benefits.
Claimant, born October 15, 1961, was 28 years old at
the time of the injury and 32 years old at the time of the
hearing (Tran. p. 26). Claimant graduated from high school
in 1980 at age 18 with average grades (Tran. p. 27).
Subsequent to that she took some computer classes at
Southwestern Area Community College (Tran. p. 87). During
the last year of high school she worked part-time as a
secretary and performed the duties of typing, filing and
answering the telephone (Tran. p. 28). Claimant has worked
part-time in a shoe store as a salesperson (Tran. p. 31).
She has worked part-time in a general merchandise store as a
stock clerk and checker (Tran. p. 31). She worked about two
years in a grocery supermarket as a stock clerk and checker
(Tran. p. 32; Ex. 1, p. 2).
Claimant started to work for employer as a sewer on
March 27, 1984 (Tran. pp. 30 & 33; Ex. 1, p. 1). Her
personal health was good at that time and she had no
problems with her wrists, hands or shoulders. She did not
take a preemployment physical examination but did answer an
extensive medical questionnaire. The information on the
application for employment shows that claimant was in
excellent health when she was hired by employer (Tran. pp.
33 & 34; Ex. 1, p. 3).
Claimant testified that she was a sewer for three
years. She described this work as follows.
A. You have a tub beside you with bundles of
whatever you're sewing tied up. You pick the
Page 4
bundles up, put it on your lap. You take out one
garment. You sew it, push it through when you're
done, and put it to the other side of you (Tran.
pp. 33 & 34).
Approximately three years later in 1987, claimant
became a verifier for shipping orders in the shipping
department. She described the verifier job as follows.
A. I'm next in line after the pickers. The
pickers pick the garments for the order and push
them around on a trolley, and then when they come
to me, I have to verify they got the right thing
you have to have. You undo the bundles. You have
the order in one hand, and you have to check every
ticket on every single garment. It's all above
your head. The trolley's up above your head
(indicating), and you have to check and make sure
everything's correct and tie it back up and push
the trolley on.
Q. Are you reaching above your head a lot?
A. Constantly the whole eight-hour day.
Q. Do you do that with both shoulders or just
the right?
A. Both
Q. And do you also use your wrist or hand?
A. Yes.
Q. Frequently?
A. Yes.
Q. When you flip through the --
A. You have to (indicating).
Q. And you're demonstrating what you are
telling us there?
A. You have to count them when you're done,
count how many is on the trolley.
Q. With your right hand, you have your hand
above your head level? Am I correct? You have to
say yes.
A. Yes.
Q. How often do you do that activity?
A. Eight hours a day, constant. There's
trolleys just backed up all the time.
Q. What are on the trolleys?
Page 5
A. The garments --
Q. I'm sorry.
A. -- hanging on hangers.
Q. What are the garments? What are they
manufacturing?
A. Lady's lingerie and nightwear. Some of
it's really heavy. Some of it's really light.
(Tran. pp. 35-37).
Claimant testified that she began to have trouble with
her right wrist in May of 1989 and that she saw Carl E.
Rouse, M.D., at that time. She related that he gave her a
brace to wear, but it separated her fingers, and she needed
her fingers together in order to do her job of grasping pin
tickets on garments and being able to count. Claimant
related that the doctor then instructed her to use her whole
arm instead of just her wrist (Tran. pp. 39 & 40).
The office notes of Dr. Rouse verify claimant's
testimony above. In addition they show that on May 19,
1989, while working at O'Bryan's over a period of time the
right wrist and arm got numb. The chief complaint was the
right wrist. Dr. Rouse noted that claimant had a job where
she was required to bend her wrist. Thus, Dr. Rouse
provided causal connection of the employment to right wrist
pain. There was no obvious abnormality on x-ray. The x-ray
Page 6
showed no fracture, dislocation or foreign body and it was
interpreted as essentially negative (Ex. 2, p. 7). Dr.
Rouse found some swelling of the ulnar styloid, but grip
strength and reflexes were essentially the same bilaterally.
He diagnosed tendinitis. Claimant lost no time from work
but rather continued to work shifting the effort to her arm
and shoulder rather than to her right wrist. (Ex. 5, p. 12).
Approximately a year later, on May 3, 1990, claimant
saw Dr. Rouse again, but this time the complaints were in
her shoulders, right worse than left. The doctor reported
that she used her shoulders more in her work after the wrist
pain in May of 1989. Dr. Rouse diagnosed overuse syndrome
secondary to activity at work (Ex. 2, p. 8). Thus, again
Dr. Rouse provides causal connection between the employment
and the right shoulder pain.
On May 16, 1990, Dr. Rouse took claimant off work
effective May 18, 1990, because of right shoulder pain (Ex.
3, p. 10). He prescribed Tollectin. An x-ray of the right
shoulder on June 11, 1990, was normal (Ex. 4, p. 11). The
doctor prescribed two weeks of physical therapy of
phonophoresis with hydrocortisone cream (Exs. 10-14). When
this failed to give relief Dr. Rouse referred claimant to
Joshua D. Kimelman, D.O., an orthopedic surgeon (Tran. pp.
42-42; Ex. 1, p. 8; Ex. 4, p. 11). The parties stipulated
that claimant's workers' compensation payments started on
May 18, 1990 (Tran. p. 44).
An examination of the physical therapy notes for the
dates May 24, 1990, May 29, 1990, May 30, 1990, May 31,
1990, June 1, 1990, June 4, 1990, June 5, 1990, June 6,
1990, June 8, 1990, June 11, 1990, June 13, 1990, June 15,
1990, June 18, 1990 and June 28, 1990 are helpful. The
physical therapist reported that claimant encountered pain
in her hand and wrist after she substituted shoulder
rotation for wrist ulnar/radial deviation (Ex. 11, p. 25).
However, the treatment on all of the foregoing dates was for
the right shoulder. None of it was for the right wrist or
right hand (Exs. 10, 11, and 12, pp. 24-30). On the
contrary, on the first visit the therapist noted, "Patient
denies any tingling, numbness, pain paresthesia in the right
upper extremity at this time." (Ex. 11, p. 25). Thus, there
was no evidence of right hand or right wrist pain during
this period of physical therapy.
Claimant saw Dr. Kimelman on June 20, 1990 (Tran. p.
45; Ex. 15, p. 34). He too recorded that to avoid tingling
and numbness in the wrist and hand that she started rotating
her shoulder. He said that claimant pointed to the anterior
acromium as the area of her pain. She denied any pain
radiating into the arm, neck pain, tingling, numbness, etc.
(Ex. 15, p. 34). A single anterior/posterior x-ray of the
shoulder was within normal limits. Dr. Kimelman diagnosed,
"impingement syndrome, right shoulder." (Ex. 15, p. 34).
On July 25, 1990, claimant reported tingling and
numbness in the ulnar three digits of the right hand in
addition to shoulder pain. On July 31, 1990, an EMG/NCV
Page 7
study ordered by Dr. Kimelman disclosed nerve root
conduction velocity of the right median and the right ulnar
nerves was normal and the electromyographic study was normal
(Tran. pp. 47 & 48; Ex. 9, pp. 20-23).
On September 21, 1990, Dr. Kimelman reported clunking
and crepitation of the right shoulder with impingement
testing but no mention is made of right hand or wrist pain.
An MRI of the right shoulder on October 18, 1990, showed
inflammatory changes but no tear (Tran. p. 49). A
cortisone injection of the subacromial bursa gave good
immediate relief but not lasting relief. No mention is made
of the right hand or wrist (Ex. 17, p. 36; Tran. p. 50).
On November 14, 1990, Dr. Kimelman notified the
insurance carrier, "I feel she should avoid repetitive
overhead use of her right upper extremity. She is able to
work at table top level (Ex. 18, p. 37; Tran. p. 50).
Claimant was recalled to work on November 20, 1990 and
assigned to the task of inspector of garments. This job
clearly violated the restrictions just imposed by Dr.
Kimelman. Claimant described this job of garment inspector
as follows.
A. There's a big bin beside you with garments
that are already fully sewn, and you pick them up
out of that, you lay them on the table, and you
inspect them for flaws in the material, for flaws
in sewing. Then you put them on the hangers, and
hang them up above you, and when you get a bundle
then done, which is twenty-four garments, you have
to take those twenty-four and put them up higher
(indicating) on to a rail there that leads them
through the steam tunnel.
Q. Is that overhead activity?
A. Yes.
Q. Is it repetitive activity?
A. Yes.
Q. Was it heavier work than you were doing?
A. Yes, because before I didn't have to lift
the garment.
Q. Were you able to do that job?
A. No.
Q. What problems did you have doing that job?
A. It hurt my shoulder.
Q. Did you tell someone at work?
A. Yes.
Page 8
Q. Who did you tell?
A. Marilyn Boswell.
Q. And what did she do after you told her
that?
A. She told me not to try it anymore.
...
Q. Did you come back to work the next day?
A. No.
Q. Why not?
A. They didn't have any other job for me.
Q. Did they tell you not to come back?
A. Yes.
Q. Have you been contacted by anyone from
O'Bryan Brothers since November 1990 to return to
work?
A. No. (Tran. pp. 52-54)
Claimant returned to Dr. Kimelman on November 29, 1990,
for follow-up of impingement of the right shoulder but no
mention is made of the right wrist. He said the cortisone
injection was ineffective. He restricted claimant to "light
duty work with no overhead lifting." (Ex. 19, p. 38; Tran.
p. 56).
On January 25, 1991, claimant reported continued pain
to her right shoulder with limited motion. Dr. Kimelman
commented,
It was thought that there would be a light duty
job for her with no overhead lifting, however,
that never panned out and she has not returned to
work.
... She's failed to respond to conservative
treatment including rest, exercise, physical
therapy, cortisone injection and I believe the
next step would be impingement release if symptoms
warrant. She reports that she may have an
opportunity to perform a different type of work
and she's not sure if her symptoms bother her
enough for an operation.
RECOMMEND that she consider her alternatives.
Get back to me and we'll see her back again in one
month. She could resume light duty with no
overhead lifting if available to her (Ex. 20, p.
39).
Page 9
Claimant testified that Dr. Kimelman said that she
should find something different to do (Tran. p. 56). She
testified that she had a list of places that she had tried,
"lots of places" where she had looked for work (Tran. p.
57). The list was not introduced into evidence, however.
Dr. Kimelman reported to the insurance company on March
13, 1991, that claimant was suffering from impingement
syndrome to her shoulder. No mention is made of any problem
to her wrist. The doctor said that claimant failed to
respond to conservative treatment. He said that she had
very minimal, if any, permanency associated with this
injury. He added that if she were to have an impingement
release the impairment would be approximately 5 percent
depending upon her recovery, range of motion, strength,
stability, etc. (Ex. 21, p. 40).
This letter by Dr. Kimelman on March 13, 1991, is
determined by this deputy to be a statement by Dr. Kimelman
that claimant had obtained maximum medical improvement in
his opinion on this date. Prior to that time improvement
through surgery, had been a consideration, but was ruled out
as of March 13, 1994.
Dr. Kimelman wrote a final letter to defendants'
Page 10
counsel on September 28, 1993, which will be discussed later
in this decision.
On February 20, 1991, claimant was examined and
evaluated by Scott B. Neff, D.O., an orthopedic surgeon (Ex.
22, p. 41). No reason for the switch to Dr. Neff was given
when Dr. Kimelman was already treating claimant as the
authorized physician. He said that claimant's right
shoulder was abnormal. The impingement maneuver was
markedly positive, with several limitations in range of
motion.
Dr. Neff determined that claimant had a Type III or
hooked acromion with a large inferior spur which predisposed
claimant to impingement syndrome and subacromial bursitis.
The doctor said that he could see on x-ray that the greater
tubberosity of the humerus was impinging on the lateral
aspect of the acromion. Dr. Neff proposed three
alternatives: (1) seek employment elsewhere, (2) create or
modify a job for her, or (3) perform a subacromial
decompression with release of the coracoacromial ligament
and acromioplasty (Tran. p. 61).
On March 22, 1991, Dr. Neff reviewed a video of the
garment inspector job and said that he believed that
claimant could perform it. However, this is the job that
claimant tried on November 20, 1991 and she was unable to do
it (Tran. pp. 62-64). It is the conclusion of this deputy
that both employer and employee agreed on November 20, 1991,
that claimant was unable to perform the garment inspector
job. Dr. Neff said that claimant could possibly perform the
verifier job with certain job modifications in her work
station (Ex. 23, p. 44). However, these modifications were
not made by employer.
On April 1, 1991, Dr. Neff clarified that claimant had
impingement syndrome and a large acromial spur and that
repetitious activity in the elevated position would give her
persistent problems. He further stated that "she does not
have any permanent impairment." (Ex. 24, p. 45; Tran. p.
64). This contradicts his opinion on March 22, 1991, that
she could perform the verifier job because it is both over
head and repetitive. Likewise, his opinion that she cannot
perform repetitive, overhead work is totally inconsistent
with his opinion that claimant has no permanent impairment.
Dr. Neff changed his opinion on April 17, 1991, when he
found (1) tenderness over the anterior of the right
acromion, (2) coracoid tenderness and (3) positive
impingement maneuver. He found a reduced range of motion of
the shoulder and stated, "Based on her range of motion loss,
this patient has sustained a 5 percent impairment of her
right upper extremity as a result of this circumstance."
(Ex. 25, p. 46; Tran. pp. 64 & 65). Dr. Neff gave no
explanation for his sudden change of opinion in the 17 days
between April 1, 1991, (when he said there was no permanent
impairment) and April 17, 1991, (when he said that claimant
had a 5 percent permanent impairment).
Dr. Neff recommended to the insurance carrier that they
Page 11
find work that claimant could perform. He said that surgery
would be reserved for symptoms which are uncontrollable and
unacceptable after work alteration (Ex. 25, pp. 46 & 47).
There is no evidence that defendants did in fact, or even
attempt to, provide any modified work to claimant after this
recommendation by Dr. Neff.
On October 31, 1991, Dr. Neff wrote to the insurance
carrier stating that claimant's impairment was to the arm
and not to the body as a whole based upon a recent supreme
court decision which the doctor did not cite (Ex. 26, p.
48).
Whether an injury is to the arm or to the body as a
whole for workers' compensation purposes is a determination
that is properly within the province of the industrial
commissioner. Doctors follow a medical model in making this
determination, whereas, the industrial commissioner follows
the law.
For medical purposes the upper extremity which Dr. Neff
rated includes the shoulder.
Gray's Anatomy, page 134, defines the upper extremity
as follows: "The bones of the upper extremity consist of
those of the shoulder girdle, of the arm, the forearm, and
the hand." Thus, in medical terms the upper extremity
extends from the tips of the fingers through the shoulder
girdle. This terminology of the upper extremity is further
verified by the Guides to the Evaluation of Permanent
Impairment, 4th Edition, published by the American Medical
Association, on pages 3/17 and 3/18 at figures 1 and 2,
where it shows the upper extremity to be the entire arm and
the shoulder girdle. The Guides further state, "The hand
and upper extremity section considers evaluation of the
thumb, finger, wrist, elbow, and shoulder regions." Guides,
Section 3.1 The hand and Upper Extremity. This is why
physicians rate arm injuries in terms of the upper
extremity. Likewise, they also rate shoulder injuries in
terms of the upper extremity. Therefore, an upper extremity
rating by a physician requires a closer analysis for
workers' compensation purposes.
The Iowa Workers' Compensation Law does not have a
benefit entitlement for a disability, loss or loss of use to
the upper extremity. The words upper extremity are not used
anywhere in the workers' compensation law or more
particularly in Iowa Code section 85.34(2), Permanent
Partial Disabilities.
For workers' compensation purposes the arm is a
scheduled member with a limitation of 250 weeks of benefits.
Iowa Code section 85.34(2)(m). In all other cases of
permanent partial disability, other than the scheduled
members listed in paragraphs a through t, the compensation
is based upon a percentage of 500 weeks. Iowa Code section
85.34(2)(u).
The dividing line between the arm and the body as a
whole for workers' compensation purposes is the
Page 12
gleno-humeral joint, which is a a ball and socket joint,
with the ball being head of the humerus of the arm and the
socket being the gleno-cavity of the scapula, which is on
the body side of the shoulder joint. Everything distal to
the gleno-humeral joint is the arm. Everything proximal to
the gleno-humeral joint belongs to the body as a whole.
This clarification of this issue was recently affirmed,
pronounced and promulgated by the industrial commissioner in
the case of Haffner v. Electrical Systems, File No. 955542
(Appeal Decn., Feb. 25, 1994).
In this case the parts of the body which are affected,
injured and disabled are primarily parts of the body as a
whole according to the notes of Dr. Kimelman, Dr. Neff and
the physical therapist.
The first office visit of Dr. Kimelman states that
claimant pointed to the anterior acromion as the area of
pain. He said she denied radiating pain to the arm, neck
pain, tingling, numbness etc. (Ex. 15, p. 34). The acromion
is part of the body as a whole. It is not a part of the
arm. Dr. Kimelman gave claimant a cortisone injection in
the subacromial bursa. The subacromial bursa is a part of
the body as a whole. It is not a part of the arm. Dr.
Kimelman consistently referred to the injury as a shoulder
injury (Ex. 15, p. 21).
In Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38
N.W.2d 161, (1949) defendants contended that a shoulder
injury was an injury to the arm. The supreme court
disagreed, citing Dailey v. Pooley Lumber Company, 233 Iowa
758, 763, 765, 10 N.W.2d 569, 573 (1943) and stated that
defendants' assumption that an injury to a shoulder is a
scheduled member injury is unwarranted. The court said that
the arm section of the Code does not apply to the shoulder,
nor is the shoulder designated as a scheduled member in any
other section of the Code. Alm, at page 1177.
Dailey v. Pooley held at page 765 that where the injury
is to a scheduled member, and also to other parts of the
body not included in the schedule, then the resultant
permanent disability, if established, is compensable as an
injury to the body as a whole.
Similarly, the supreme court stated, in Lauhoff Grain
v. McIntosh, 395 N.W.2d 834 (Iowa 1986), "We conclude that
Iowa Code section 85.34(2)(o) in defining a leg, does not
include a hip joint."
Thus, it would appear to this deputy that the Supreme
Court of the state of Iowa has concluded that shoulder
injuries and hip injuries are injuries to the body as a
whole as a matter of law in the absence of compelling
evidence to the contrary. The court further stated in the
Lauhoff case, "The AMA Guide relied on is of doubtful
authority in this case, in any event, because it includes
the hip as part of the 'lower extremity' a term which is not
found in our statutory schedule." (Lauhoff pp. 839 & 840).
Dr. Neff found that claimant had a Type III or hooked
Page 13
acromion with a large acromial spur which predisposed her to
impingement syndrome and subacramial bursitis. On x-ray he
could see the greater tubersity of the humerus impinging on
the lateral aspect of acromion. Thus, by Dr. Neff's own
description of the injury and disability it affects and
involves parts of the body as a whole, to wit, the acromion
and the subacromial bursa.
Further confirmation that this is an injury to the body
as a whole is found in the physical therapy notes for the
several physical therapy treatments between May 24, 1990 and
June 28, 1990, where the therapist refers to the anterior
portion of the shoulder, the posterior portion of the
shoulder, the pectoral muscle on the right, the insertion of
the levator scapula, the tendon to the infraspinatous
muscle, the teres minor muscle, the acromio-clavicular joint
and the coracoid process, which are all parts of the body as
a whole because they are found on the body side of the
gleno-humeral joint (Ex. 11 & 12, pp. 25-30).
The greater tuberosity and lesser tuberosity of the
humerus, which are parts of the arm, are mentioned in the
physical therapist's notes, but they are mentioned not
because they are injured, but rather because they caused
aggravation and pain when they came in contact with the
acromion which is the body part that suffered the injury,
impairment and disability.
Gray's Anatomy, at page 144, further defines the arm as
follows: "The arm is that portion of the upper extremity
which is situated between the shoulder and the elbow. Its
skeleton consists of a single bone, the humerus.
Gray's Anatomy, at page 150, defines the forearm as
follows: "The forearm is that portion of the upper
extremity which is situated between the elbow and the wrist.
Its skeleton is composed of two bones, the ulna and the
radius."
Thus, for workers' compensation purposes the arm is
constituted by the skeletal bones of the humerus, ulna and
radius.
None of these bones or surrounding tissue was
determined to be injured by either Dr. Kimelman or Dr. Neff.
The parts these doctors found to be injured and disabled
were parts of the body as a whole.
The shoulder, and more particularly the acromion,
scapula, coracoid process and subacromial bursa are not a
part of the arm, because they are proximal to the
gleno-humeral joint and are considered to be parts of the
body as a whole for which benefits are awarded under Iowa
Code section 85.34(2)(u).
The parts of the arm in the shoulder joint were not
determined to be injured or disabled. The major arm part is
the head of the humerus which consists of the greater
tuberosity, the lesser tuberosity and the bicipital groove.
The injury, the impairment, the loss, the loss of use, the
Page 14
permanent disability all occurred to parts of the body as a
whole. Thus, even if parts of the arm were considered to be
injured, which they were not, claimant would still be
determined to have sustained an injury to the body as a
whole because the injury and disability extended beyond the
scheduled member to the body as a whole under the rule in
the Dailey case.
Moreover, Dr. Neff based his permanent impairment
rating on a loss of motion in the shoulder. The industrial
commissioner determined some time ago that a loss of range
of motion in the shoulder was sufficient to cause an injury
to be considered an injury to the body as a whole.
Fullerton v. Caterpiller Tractor Co., IV Iowa Industrial
Commissioner Report 135 (App. Dec. 1984).
On December 30, 1991, Dr. Neff reviewed two more job
descriptions and videos for two jobs with employer, (1) the
"spaghetti operator" and (2) the "machine label maker", and
determined, "There is no medical reason from an orthopedic
surgical standpoint why this patient cannot do either of
these jobs." (Ex. 27, p. 49). Claimant testified that she
did not receive a call from employer offering her either one
of these two jobs or any other job at any time after
November 20, 1990 (Tran. pp. 54 & 68).
The Iowa Supreme Court has stated that an employer's
refusal to provide any work for an injured employee is a
factor of disability irrespective and independent of
functional impairment. McSpadden v. Big Ben Coal Co., 288
N.W.2d 181, 192 (Iowa 1980). Thus, even though claimant's
permanent impairment rating is not large, nevertheless, her
industrial disability is greatly increased by the fact that
employer considers claimant to be unemployable.
It is highly inconsistent for an employer to argue that
the injured employee is only slightly disabled and at the
same time have no work that she can do even when the
authorized treating physician has determined that there are
two jobs that she can do at employer's place of business. 2
Larson, Workman's Compensation Law, section 57.61(b) at
pages 10-398 and 10-403; Killinger v. Mark Wells
Distributing Co., File Nos. 775851 and 808991, arbitration
decision filed October 27, 1989 ( Appealed 11-15-89,
Settled 12-21-89).
On September 27, 1991, Jerome G. Bashara, M.D.,
performed an independent medical examination after reviewing
the medical evidence in this case. He noted that the EMG of
July 31, 1990, was interpreted as normal. At the time of
Dr. Bashara's examination claimant only had "occasional
numbness and tingling in the right hand." (Ex. 41, p. 69).
Dr. Bashara found tenderness over the rotator cuff and
subacromial bursa, which are parts of the body as a whole,
and not the arm. She had crepitation and impingement of the
shoulder and moderate restriction of motion. Dr. Bashara
noted the subacromial spur on Dr. Rouse's x-rays of June 11,
1990 and Dr. Neff's x-ray of February 20, 1991. He said
that the MRI of October 10, 1990, showed abnormal signals
throughout the rotator cuff and glenoid labrum.
Page 15
Dr. Bashara diagnosed rotator cuff tendinitis,
subacromial bursitis, and impingement syndrome of the right
shoulder, all of which are indicative of an injury to the
body as a whole. He recommended restriction of no
repetitive use of the right shoulder and no lifting overhead
of 10 pounds on a repetitive basis. He determined that
claimant had sustained a 7 percent permanent impairment of
her right upper extremity related to her shoulder (Ex. 41,
pp. 68-70).
Claimant returned to Dr. Neff on March 30, 1992, almost
two years after the original injury of April 30, 1990,
complaining of numbness and tingling in her right hand and
that it gets cold while simply walking in the evening (Tran.
p. 70). Dr. Neff referred claimant to William Koenig, M.D.,
a physical medicine and rehabilitation physician for
evaluation of fibrositis, fibromyalgia, an EMG and a
possible bone scan (Ex. 28, p. 50). Dr. Koenig saw claimant
on April 23, 1992 and identified her primary complaint in
the shoulder in the area of the acromion and the pectoral
area. She also complained of paresthesias of the hand when
exposed to cold, walking or driving a car. Tinel sign was
negative at the elbow and wrist. He diagnosed fibrositis
syndrome and possible carpal tunnel syndrome (Ex. 42, p.
71).
The results of Dr. Koenig's EMG study were "EMG study
is normal. No evidence seen for nerve root compression,
right, et. al. IMPRESSION: mild right carpal tunnel
syndrome." Ex. 44, p. 74). It would appear that claimant's
carpal tunnel syndrome was indeed very mild if there was no
nerve root compression. The earlier EMG in July of 1990,
which was found to be normal, did not find any nerve root
compression either.
Dr. Koenig refused to comment on causation. He stated,
"As secondary or tertiary consultants it is not our policy
to agree or disagree e our referred sources re causality.
The only time we do so (make opinion) is when we are primary
treating source." (Ex. 48, p. 79).
Dr. Koenig referred claimant to Douglas S. Reagan,
M.D., for possible surgery when Dr. Neff refused (without
explanation) to continue to see her (Tran. pp. 73-75 & 127;
Ex. 42, p. 71; Ex. 47, p. 78).
Dr. Reagan saw claimant on August 20, 1992 for both
shoulder and hand complaints. His x-rays were unremarkable.
He diagnosed, (1) possible subacromial bursitis, (2) carpal
tunnel syndrome, (3) possible thoracic outlet syndrome and
(4) myofascial pain syndrome versus fibromyalgia as noted by
Dr. Koenig. Several options were discussed and claimant
wanted to proceed with carpal tunnel surgery (Ex. 49, pp.
80-82; Ex. 50, p. 83).
On January 25, 1993, Dr. Reagan opined that the carpal
tunnel syndrome was not caused by claimant's work for
employer, but it was aggravated by it. Dr. Reagan based his
opinion in part on the fact that claimant had continuous
Page 16
discomfort since the onset of symptoms in April of 1989,
however, the medical evidence summarized above does not
reflect any serious continuing complaints about her right
hand or wrist while treating with either Dr. Kimelman or Dr.
Neff or during her independent medical examination with Dr.
Bashara.
Dr. Reagan explained, "... the literature would suggest
that anywhere between 8% and 40% of carpal tunnel syndromes
are not associated with a positive EMG." (Ex. 51, p. 84).
Dr. Reagan's report also suggests that a finding for carpal
tunnel syndrome on EMG may develop later after the onset of
the clinical symptoms (Ex. 51, p. 84). He estimated that
claimant had a small amount of impairment in the right hand
in the range of 1 percent to 2 percent based on discomfort
in the hand (Ex. 51, p. 84).
On August 24, 1993, claimant was examined by Martin S.
Rosenfeld, D.O., an orthopedic surgeon, for a second
independent medical examination. He stated that her hand
was worse than her shoulder at that time. He said she was
dropping things and being awakened at night. Dr. Rosenfeld
found Tinel, Phalen and carpal compression all present on
the right, and also found a positive impingement present in
the right shoulder. Dr. Rosenfeld's impression was (1)
repetitive use injury of the right upper extremity with
residual carpal tunnel syndrome and (2) right shoulder
impingement syndrome. He recommended surgery to both areas.
Without the surgery at the time of his examination he
assessed that claimant had a 5 percent impairment to the
right upper extremity as a result of her impingement
syndrome and another 5 percent impairment to the right upper
extremity as a result of her carpal tunnel syndrome (Ex. 25,
pp. 86 & 87).
Dr. Kimelman reported again on September 28, 1993, that
claimant initially told him that the substituted use of her
shoulder, instead of her wrist, was successful because the
tingling and numbness in her hand was not a presenting
complaint. She had a negative Phalen's test. Subsequently,
she complained of some numbness in the ulnar three digits
but that an EMG showed no evidence of nerve entrapment in
July of 1990. Dr. Kimelman opined, "I do not feel that
carpal tunnel syndrome arising in 1992 could result from on
the job activity occurring in April, 1990." (Ex. A-2, p. 3).
Dr. Kimelman said that he had reviewed the reports of both
Dr. Neff and Dr. Reagan and that he was in agreement with
Dr. Neff's reports. Dr. Kimelman added, "I agree in review
of Dr. Bashara's notes that he did not find evidence of
carpal tunnel syndrome when he evaluated Ms. Pierson." (Ex.
A-2, p. 4).
On September 29, 1993, Dr. Neff stated, "If, however,
repetitious activity associated with a specific work place
or job stops, then that activity can no longer continue to
contribute to the development eventually of carpal tunnel
syndrome." (Ex. A-3, p. 7).
With respect to the shoulder impingement syndrome Dr.
Neff stated, "It is my opinion that impingement syndrome or
Page 17
subacromial bursitis can be directly related to the
repetitious activity and use of the arm at and above the
shoulder height or repetitious push-pull, back-and-forth
activity." (Ex. A-3, p. 8).
Thus, Dr. Neff states that the carpal tunnel syndrome
disability was not caused by this injury but agrees that
impingement syndrome disability was caused by this injury
because the proven facts are that claimant did perform
repetitive work with her arms above shoulder height for
several years.
Claimant admitted that she did some sewing and
performed some craft work at home in 1990 and that it made
her hand and arm complaints worse (Tran. pp. 93 & 95). She
testified that sometimes she sewed at home three days a week
and sold some of the items (Tran. pp. 91-94). She is no
longer able to do these jobs for more than 20 to 30 minutes
at a time (Tran. pp. 92 & 93). Claimant further related
that the repetitive activities at work were constant whereas
the sewing and craft activities at home were simply leisure
activities (Tran. p. 102).
From the foregoing evidence it is determined that the
injury was the cause of permanent disability to claimant's
right shoulder, but that it was not the cause of the carpal
tunnel syndrome disability which manifested itself two years
later after the initial injury date in this case and three
years after claimant first complained of right wrist pain on
May 19, 1989 (Ex. 5, p. 12). Even though claimant contends
that she was having wrist and shoulder problems when she saw
Dr. Kimelman she admitted that he did not treat her wrist
(Tran. pp. 58 & 59).
Claimant also indicated that Dr. Neff treated her right
hand and wrist but this contention is not borne out by Dr.
Neff's record (Tran. pp. 65 &68). Dr. Neff stated that when
he treated her that her primary complaints were to her
shoulder (Ex. 38, p. 63).
The opinion of Dr. Kimelman and Dr. Neff that the
injury did not cause carpal tunnel disability is preferred
over the testimony of Dr. Reagan and Dr. Rosenfeld.
Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187,
192 (Iowa 1985). Dr. Koenig did not make a specific
statement as to whether the employment injury was the cause
of any permanent carpal tunnel disability (Exs. 42-47, pp.
71-79). In fact, Dr. Koenig declined to give any opinion on
causation (Ex. 48, p. 79).
Claimant received physical therapy treatments a second
time at the direction of Dr. Koenig on May 7, 1992, May 8,
1992, May 11, 1992, May 13, 1992, May 14, 1992 and May 18,
1992. It is noted that all of it was directed to her
shoulder and none of it was directed to her right hand or
wrist (Ex. 13 & 14, pp. 31-33).
Again, the notes of the physical therapist demonstrate
that the parts of the body affected by the injury which
needed treatment were parts of the body on the proximal side
Page 18
of the gleno-humeral joint such as the infraspinitous
muscle, levator scapula, supraspinatous, trapezius, scapula,
neck, and paraspinal muscles (Exs. 13 & 14, pp. 31-33).
It is determined that claimant is entitled to temporary
disability benefits for a period of healing which began on
May 18, 1990, when Dr. Rouse took claimant off work for this
injury (Ex. 3, p. 10; Tran. p. 88). Claimant's attorney
stated on the record that the parties agreed that workers'
compensation benefits were begun on May 18, 1990 (Tran. p.
44). The healing period benefits should terminate on March
13, 1991, when Dr. Kimelman indicated that he had exhausted
his efforts at conservative treatment and indicated that
claimant had minimal if any permanency and restricted
claimant from overhead work (Ex. 21, p. 40). This latter
date selected by the deputy coordinates closely with the
date of the impairment rating of Dr. Neff of 5 percent of
the right upper extremity on April 17, 1991. However, the
date of March 13, 1991 comes first. Iowa Code section
85.34(1). The healing period from March 18, 1990 until
March 13, 1991 constitutes a period of 42.714 weeks.
Dr. Neff's statement that maximum medical improvement
occurred four months after the date of her injury of April
3, 1990 [sic] is unrealistic. If that was the case he
should have said that she had reached maximum medical
improvement as of August 3, 1990, when he first saw claimant
on February 20, 1991, but he did not do so (Ex. 30, p. 53).
Dr. Kimelman had been the treating physician during the bulk
of the period of disability and he should be the best judge
of when claimant attained maximum medical improvement (Ex.
21, p. 40).
It is determined that claimant has sustained a 30
percent industrial disability to the body as a whole caused
by the right shoulder impingement syndrome. Claimant's
permanent impairment ratings are not large. Dr. Kimelman
said it was minimal, if any. Dr. Neff allowed 5 percent.
Dr. Bashara assessed 7 percent. Dr. Rosenfeld said it was 5
percent for the shoulder. Nevertheless, claimant's loss of
earning capacity is substantial.
Dr. Kimelman, the treating physician, imposed several
severe restrictions (Ex. 18, p. 37; Ex. 19, p. 38; Ex. 20,
p. 39). She is foreclosed from overhead work and is
restricted to work at tabletop level. She is foreclosed
from repetitive work. She is not to perform any overhead
lifting. She is restricted to light duty work (Ex. 18, p.
37; Ex. 19, p. 38; Ex. 20, p. 39). Dr. Neff said claimant
should not engage in any heavy manual labor activities (Ex.
30, p. 53). Dr. Bashara said she should perform no lifting
overhead of ten pounds on a repetitive basis (Ex. 41, pp.
68-70). Thus, claimant is foreclosed from her former
employment with this employer of six years. Michael v.
Harrison County, Thirty-fourth Biennial Report of the
Industrial Commissioner 218, 220 (App. Dec. January 30,
1979); Rohrberg v. Griffin Pipe Products Co., I Iowa
Industrial Commissioner Report 282 (1984).
Claimant is also either foreclosed or limited on her
Page 19
previous employments of secretarial work, stock clerk work,
and check-out cashier. Claimant is foreclosed from most
production line types of work which are some of the most
common jobs in the competitive labor market.
Claimant's disability must be quite substantial because
Dr. Neff reviewed two job descriptions and two videos for
employer and said that claimant could do either one of these
two jobs. However, she was not offered either one of them,
or any other employment with employer, who employs
approximately 125 people. This is strong evidence of
claimant's significant unemployability.
Claimant testified that she cannot sleep on her right
shoulder (Tran. p. 78). She related that her shoulder aches
all of the time and that it makes clunking noises if she
tries to use it (Tran. p. 79). Performing household duties
make her symptoms worse (Tran. p. 91). Claimant testified
that she looked for work at a number of places after she
reached maximum medical improvement on March 13, 1991 and
before she began to work for her parents managing a video
store on March 13, 1992 (Tran. pp. 69 & 79). She testified
that she had a list of places where she had attempted to
find employment but no lists were introduced into evidence.
She related that she read the newspaper and checked for
employment in Leon, Osceola and Lorimor.
Claimant's motivation between March of 1991 and March
of 1992 may have been affected by the fact that she received
workers' compensation benefits until July 12, 1991 (Tran. p.
7). In addition, claimant is married and her husband works
at two jobs, one is a salaried job and the other is a
self-employment job (Tran. pp. 28 & 29). Claimant also had
three small grade school children at home during this period
of time (Tran. p. 29). Claimant testified that she might
have drawn some unemployment compensation but she could not
recall for sure (Tran. p. 97).
Claimant was earning $6.45 per hour for employer at the
time of her injury. She was earning $5.00 per hour at the
time of the hearing managing the video store (Tran. p. 38).
This is an actual 22 percent loss plus fringe benefits of
sick leave, medical insurance, paid vacation, and profit
sharing which should rightfully be taken into consideration
(Tran. p. 38). Claimant's current job has no fringe
benefits.
Claimant testified that it was normal to receive a
raise of 25 cents per hour or more each year and that if she
had remained with employer that she would currently being
receiving a wage of $7.20 per hour (Tran. pp. 82-84 & 99).
If this is correct, then claimant's actual loss of earnings
would be 30 percent plus the value of the fringe benefits
above (Tran. pp. 17 & 18).
Defendants opted to offer claimant no vocational
rehabilitation to mitigate her industrial disability loss
although Dr. Kimelman stated that claimant should find
different employment. Dr. Neff enjoined employer to find a
job which claimant could perform, but employer refused to do
Page 20
so.
Claimant has initiated her own personal rehabilitation
program by enrolling in Graceland College at the end of the
Summer of 1992 as a full-time student. Her plan is to
receive a bachelor of arts degree in sociology and to get
into human services (Tran. pp. 80, 81 and 102). She has a
grade point average of 3.48. Claimant related that she
borrowed money for school (Tran. p. 82) and that she also
has two grants (Tran. p. 87). Claimant also works full-time
managing a video store.
Claimant is suitable for retraining based upon her high
school education with average grades, the computer courses
she took after high school and her current grade point
average of 3.48 considering the fact that she also is
working full-time. Conrad v. Marquette School, Inc., IV
Iowa Industrial Commissioner Report 74, 89 (1984).
Claimant's age of 28 at the time of injury and 32 at
the time of hearing indicate that retraining is suitable and
that she should pursue new lines of endeavor in order to
mitigate her industrial disability. At the same time
college training is expensive and tends to increase her
industrial disability.
Based upon the foregoing factors it is determined that
claimant has sustained a 30 percent industrial disability to
the body as a whole and is entitled to 150 weeks of
permanent partial disability benefits.
SECTION 85.27 MEDICAL BENEFITS
It is determined that defendants are liable for the
bill of Douglas M. Reagan, M.D., in the amount of $295.
Dr. Neff was an authorized physician. He referred
claimant to Dr. Koenig. Dr. Koenig referred claimant back
to Dr. Neff for surgical evaluation and Dr. Neff refused to
see claimant. Dr. Koenig then referred claimant to Dr.
Reagan.
It is a well known principle of workers' compensation
law that when a treating physician refers an injured
employee to another physician the second physician becomes
the agent of the authorized treating physician. Limoges v.
Meier Auto Salvage, I Iowa Industrial Commissioner Report
207 (1981); Kittrell v. Allen Memorial Hospital,
Thirty-fourth Biennial Report of the Industrial Commissioner
164 (1969). In this case Dr. Neff referred claimant to Dr.
Koenig and Dr. Koenig referred claimant to Dr. Reagan.
Claimant simply followed the instructions of the authorized
treating physicians provided to her by the employer and
insurance carrier. Defendants therefore should be liable
for the medical expenses which they caused to be generated
by Dr. Reagan in the amount of $295. Dr. Reagan was not
claimant's choice of physician. She was referred there by
authorized treating physicians which the employer paid and
thus acknowledged that they were authorized treating
physicians. Coble v. Metromedia, Inc., Thirty-fourth
Page 21
Biennial Report of the Industrial Commissioner 71 (1979);
Munden v. Iowa Steel and Wire, Thirty-third Biennial
Report of the Iowa Industrial Commissioner 99 (1977).
Therefore, it is determined that defendants are liable
for the bill of Dr. Reagan in the amount of $295.
Claimant testified that she wanted and was entitled to
carpal tunnel surgery from Dr. Reagan for her continuing
disability in her right hand and wrist (Tran. p. 18, 78, &
122).
Even though Dr. Reagan is determined to be an
authorized physician and entitled to be paid by defendants
it is nevertheless determined that the right carpal tunnel
syndrome disability was not caused by this injury.
Therefore, claimant is not entitled to carpal tunnel surgery
at the expense of the employer and insurance carrier.
Claimant further acknowledged on the record at the time
of the hearing that her health insurance carrier had turned
her down for surgery because the carpal tunnel was an
on-the-job injury (Tran. p. 98). Now that it has been
determined that the carpal tunnel syndrome disability was
not caused by her employment, then claimant should be
entitled to coverage by the health insurance carrier (Tran.
pp. 21-25).
SECTION 85.39 MEDICAL EXPENSE
It is determined that defendants do not owe for the
second independent medical examination performed by Dr.
Rosenfeld in the amount of $790. First of all, Iowa Code
section 85.39 only authorizes one independent medical
examination. Secondly, it has been determined in this
decision that the employer and insurance carrier are not
liable for the carpal tunnel syndrome disability.
Therefore, defendants should not be liable for an
independent medical examination for a disability for which
they are not liable.
CONCLUSIONS OF LAW
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
That the injury of April 30, 1990, was the cause of
right shoulder permanent disability. Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O.
Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
That the injury of April 30, 1990, was not the cause of
right hand or wrist permanent disability. Bodish v.
Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl
v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
That claimant is entitled to healing period benefits
from May 18, 1990 to March 13, 1991. Iowa Code section
85.34(1).
Page 22
That claimant has sustained a permanent disability to
the right shoulder which is an injury to the body as a
whole. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38
N.W.2d 161 (1949); Lauhoff Grain v. McIntosh, 395 N.W.2d 834
(Iowa 1986); Haffner v. Electrical Systems, File No. 955542
(Appeal Decn., Feb. 25, 1994).
That claimant has sustained a 30 percent industrial
disability to the body as a whole and is entitled to 150
weeks of workers' compensation permanent partial disability
benefits. Iowa Code section 85.34(2)(u).
That claimant is entitled to recover the medical
expenses of Dr. Reagan in the amount of $295.
That claimant is not entitled to a second independent
medical examination from Dr. Rosenfeld in the amount of
$790.
ORDER
THEREFORE IT IS ORDERED:
That defendants pay to claimant forty-two point seven
one four (42.714) weeks of healing period benefits at the
stipulated rate of one hundred seventy-five and 94/100
dollars ($175.94) per week in the total amount of seven
thousand five hundred fifteen and 10/100 dollars ($7,515.10)
commencing on March 18, 1990.
That defendants pay to claimant one hundred fifty (150)
weeks of permanent partial disability benefits at the
stipulated rate of one hundred seventy-five and 94/100
dollars ($175.94) per week in the total amount of twenty-six
thousand three hundred ninety-one dollars ($26,391.00)
commencing on March 13, 1991.
That defendants are entitled to a credit for sixty (60)
weeks of workers' compensation benefits paid to claimant
prior to hearing at the rate of one hundred seventy-five and
94/100 dollars ($175.94) per week in the total amount of ten
thousand five hundred fifty-six and 40/100 dollars
($10,556.40).
That these benefits are to be paid in a lump sum.
That interest will accrue pursuant to Iowa Code section
85.30.
That defendants pay to claimant or the provider of
medical services two hundred ninety-five dollars ($295.00)
for the services of Dr. Reagan.
That the costs of this action, including the cost of
the attendance of the court reporter at hearing and the cost
of the transcript of hearing, are charged to defendants
pursuant to rule 343 IAC 4.33 and Iowa Code sections
86.19(1) and 86.40.
That defendants file claim activity reports as
Page 23
requested by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of July, 1994.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Robert W. Pratt
Attorney at Law
6959 University Ave.
Des Moines, IA 50311-1540
Mr. E. J. Kelly
Attorney at Law
2700 Grand Ave.
Suite 111
Des Moines, IA 50312
2901, 2906, 5-1802, 5-1803, 1803.1,
1807, 2501, 2505, 2700, 2502
Filed July 8, 1994
Walter R. McManus, Jr.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
TONYA PIERSON,
Claimant,
vs.
File No. 951206
O'BRYAN BROTHERS,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
WAUSAU INSURANCE,
Insurance Carrier,
Defendants.
___________________________________________________________
2901, 2906
The petition alleged a right shoulder injury. In the course
of treatment and discovery a diagnosis of right carpal
tunnel syndrome developed about two years after the
stipulated injury date. The deputy proceeded on the basis
that the stipulated injury date applied to both the right
shoulder injury and the right wrist injury because technical
rules of pleading are not followed by the industrial
commissioner and because both parties had secured all of the
evidence they wanted about the right wrist and submitted it
into evidence. The major issue to be decided was whether
the right wrist injury was the cause of right carpal tunnel
syndrome and any resulting permanent disability, or medical
treatment, resulting from the right carpal tunnel syndrome.
1108, 1108.50, 1401, 1402.40
It was determined that the injury was the cause of permanent
disability to the right shoulder. It was determined that
the injury was the cause of right wrist pain, but that it
was not the cause of the carpal tunnel syndrome, or any
permanent disability resulting from the carpal tunnel
syndrome.
5-1802
Claimant was awarded healing period benefits from the time
she was taken off work by the treating physician until a
later orthopedic surgeon determined that he had exhausted
conservative treatment measures, surgery was not indicated
Page 2
and claimant had minimal, if any, permanent impairment.
1803.1
It was determined that a shoulder injury is an injury to the
body as a whole and not a scheduled member injury. This was
established as a matter of law by Alm, Dailey, and Lauhoff.
Furthermore, the industrial commissioner just recently gave
his most current precedential determination of this issue in
Haffner. Other cites are given from Gray's Anatomy and
the Guides to the Evaluation of Permanent Impairment.
5-1803, 1807
Impairment ratings for the shoulder were (1) minimal, if
any, (2) 5 percent, (3) 5 percent and (4) 7 percent.
Claimant, age 29 at the time of injury, with a high school
education, was foreclosed from repetitive work, overhead
work, and restricted to light work at tabletop level. She
was working full-time managing her parents video store and
also going to college full-time with a GPA of 3.48. Her
actual earnings loss calculated out at 22 percent by one
method and 30 percent by another method. Although
employer's physician approved two jobs for her, employer
nevertheless refused to offer claimant these jobs, or any
employment. Employer offered no rehabilitation to mitigate
their industrial disability. Although claimant's impairment
ratings were not substantial, nevertheless, her industrial
disability was substantial. Claimant was awarded 30 percent
industrial disability.
2501, 2505, 2700
A treating orthopedic surgeon referred claimant to a
rehabilitation physician for an evaluation. The
rehabilitation physician referred claimant back to the
orthopedic surgeon for surgical evaluation. The orthopedic
surgeon refused to see or treat claimant. Whereupon, the
rehabilitation physician referred claimant to a different
orthopedic surgeon for surgical evaluation and he
recommended surgery. Defendants refused to pay the second
orthopedic surgeon. Defendants were ordered to pay his
charges. A referral physician is considered to be the agent
of the referring physician and is entitled to be paid by
defendants. Precedents cited in the decision.
Claimant never asked to see the second orthopedic surgeon.
She simply followed the instructions of authorized
physicians. She should not be liable for his charges.
Defendant should be liable for his charges.
It was further determined that since it was determined that
the carpal tunnel syndrome was not caused by this injury,
that claimant was not entitled to carpal tunnel surgery, or
further medical treatment for the carpal tunnel syndrome.
Claimant testified that her group health insurer refused to
pay because the carpal tunnel was a workers' compensation
injury. This decision should establish for the group health
insurer that it was not a workers' compensation injury.
Page 3
2502
It was determined that claimant was not entitled to a second
independent medical examination after the carpal tunnel
syndrome was diagnosed some two years after the stipulated
injury date and three years after claimant was treated for
right wrist pain without any intervening treatment for it.
First, the statute (Iowa Code section 85.39) only authorizes
one independent medical examination.
Second, since claimant failed to prove that the carpal
tunnel syndrome or the disability resulting from it was
caused by this injury, then defendants should likewise not
be liable for an independent medical examination for a
condition for which they were not liable.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
FRED BLOM, JR., :
:
Claimant, :
:
vs. :
: File No. 951305
AG DIMENSIONS CORP. a/k/a :
GOLDEN HILL PORK, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
AETNA CASUALTY & SURETY :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition of
claimant, Fred Blom, Jr., against his employer, Ag Dimensions
Corp. a/k/a Golden Hill Pork, and its insurance carrier, Aetna
Casualty & Surety Company, defendants. The case was heard on
November 21, 1991, in Council Bluffs, Iowa.
The hearing was set for 11:00 a.m. on the aforementioned
date. Claimant was sent a copy of the hearing assignment order
by certified mail. The signed and returned certified mail
receipt was filed with the office of the industrial commissioner
on May 6, 1991. The receipt bore the signature of "Carol Blom."
The date of delivery of the hearing assignment order was listed
as May 3, 1991.
At the hearing, claimant did not appear, nor did anyone
appear on claimant's behalf. Tom Plaza, attorney, appeared on
behalf of the defendants. No evidence was presented on behalf of
any party.
findings of fact and conclusions of law
The party who would suffer loss if an issue were not estab
lished has the burden of proving that issue by a preponderance of
the evidence. Iowa R. of App. P. 14(f).
The claimant has the burden of proving by a preponderance of
the evidence that the alleged injury actually occurred and that
it arose out of and in the course of employment. The words
"arising out of" refer to the cause or source of the injury. The
words "in the course of" refer to the time, place and circum
stances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415, 417
(Iowa 1986); McClure v. Union, et al., Counties, 188 N.W.2d 283,
287 (Iowa 1971).
Page 2
The claimant has the burden of proving by a preponderance of
the evidence that the injury is a proximate cause of the disabil
ity on which the claim is based. A cause is proximate if it is a
substantial factor in bringing about the result; it need not be
the only cause. A preponderance of the evidence exists when the
causal connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297
(Iowa 1974).
In the case at hand, claimant failed to appear. No one
appeared for claimant. Claimant did not present any evidence.
Consequently, he failed to meet his burden of proof. Claimant
takes nothing from these proceedings.
order
THEREFORE, IT IS ORDERED:
Claimant takes nothing from these proceedings.
Costs are taxed to claimant pursuant to rule 343 IAC 4.33.
Signed and filed this ____ day of November, 1991.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Fred Blom, Jr.
Box 654
Sherburn MN 56171
REGULAR & CERTIFIED MAIL
Mr. Thomas M. Plaza
Attorney at Law
701 Pierce St STE 200
P O Box 3086
Sioux City IA 51102
5-1400
Filed November 26, 1991
MICHELLE A. McGOVERN
before the iowa industrial commissioner
____________________________________________________________
:
FRED BLOM, JR., :
:
Claimant, :
:
vs. :
: File No. 951305
AG DIMENSIONS CORP. a/k/a :
GOLDEN HILL PORK, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
AETNA CASUALTY & SURETY :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1400
Claimant failed to appear at the hearing. No evidence was
presented. Claimant did not meet his burden of proof.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
CATHY M. KRUSE, :
:
Claimant, :
:
vs. :
: File Nos. 874897 & 951310
ARMOUR FOOD COMPANY, :
: A R B I T R A T I O N
Self-Insured, :
Employer, : D E C I S I O N
:
and :
:
HARTFORD INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
This is a consolidated hearing before the Iowa
Industrial Commissioner filed by Cathy Kruse. Claimant
filed a petition for arbitration in file number 874897
against Armour Food Company identified as employer and
Hartford Insurance Company identified as insurer, alleging
an injury on January 13, 1988. Claimant also filed a claim,
file number 951310, against self-insured Armour Food Company
for an alleged injury on May 4, 1990. Both claims were
brought to recover benefits under the Iowa Workers'
Compensation Act. This matter came on for hearing before
the undersigned deputy industrial commissioner on November
15, 1991, in Mason City, Iowa. The record was considered
fully submitted at the close of the hearing. The record in
this case consists of testimony from Cathy M. Kruse and Gary
Schmidt and claimant's exhibits 1 through 27 and 29 through
30 and defendants' exhibit L.
Issues
Pursuant to the prehearing report and order and
statement of the parties at the hearing, the following
issues have been submitted for resolution:
1. Whether claimant's injury is limited to her right
upper extremity or extends into the body as a whole;
2. The extent of entitlement to weekly compensation
for permanent disability, if defendants are liable for the
injury;
3. The commencement date of permanent partial
disability benefits, in the event such benefits are awarded;
and
4. Whether claimant is entitled to payment of medical
Page 2
benefits and mileage expenses for an independent medical
examination under Iowa Code section 85.39.
findings of fact
The undersigned has carefully considered all of the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Claimant was born on September 23, 1958. She was
married on July 26, 1975, and became widowed on June 30,
1979. She has one child. Claimant lives on a 120 acre farm
which she owns and manages. She attended high school
through the tenth grade and received a GED certificate in
1976. After high school, she took some college courses at
Hamilton Business College and North Iowa Community College.
She completed three years of college and plans to obtain her
bachelor's degree sometime in the future. In June 1991, she
invested $1000 in NIS Financial Services program and after
passing the required tests, she obtained her license to sell
mutual funds and other types of financial services and
insurance. She is self-employed and works out of her home.
Claimant started working at Armour Food on July 12,
1984. She initially started working part-time in the
sausage packing department. Occasionally she worked full
time and was laid off during slow periods.
On January 14, 1988, claimant developed severe pain in
her right wrist with some swelling. She saw K.B. Washburn,
M.D., the company physician. On January 18, 1988, she was
seen by T.C. Mead, M.D. He diagnosed a very acute de
Quervain's syndrome. She was given a limited return to work
release on February 4, 1988, but was put on plant wide
layoff. Dr. Washburn prescribed a work hardening program
which claimant performed at home. She returned to work in
June 1988 and was taken off work on July 11, 1988, with
exacerbation of her symptoms. Dr. Mead recommended surgery,
but wanted a second opinion. He sent claimant to Arnold E.
Delbridge, M.D., whose practice is limited to orthopedic and
hand surgery (exhibit 1).
Dr. Delbridge saw claimant on July 27, 1988, and he
noted a very positive de Quervain's sign. He also noted
other signs of upper extremity overuse including tennis
elbow and some shoulder bursitis. He recommended surgical
intervention (ex. 3).
On August 5, 1988, claimant underwent a tenosynovectomy
with release of the de Quervain's contracture (ex. 4).
Dr. Mead released claimant to return to work in October
1988. She returned to the dry sausage department performing
regular duties and working long hours. When reevaluated by
Dr. Mead in November-December 1988, she complained of
shoulder and neck pain. Because of persistent complaints,
Dr. Washburn took claimant off work on January 3, 1989, and
ordered EMG and nerve conduction studies (ex. 1, pp. 9-10).
Page 3
Nerve conduction studies of claimant's right upper
extremity were performed on January 4, 1989. There was no
evidence of any acute nerve involvement and no evidence of
carpal tunnel syndrome. Dr. Washburn commented that, "The
patient is still sensitive wherever I touch her. I believe
there is a great deal of psychogenic overlay in this
patient." (ex. 5).
Claimant continued to be seen at the Park Clinic in
Mason City, Iowa, by Dr. Washburn and other staff members.
On April 21, 1989, she was reevaluated by Dr. Delbridge. He
indicated that x-rays showed no abnormalities. He
recommended physical therapy (ex. 3). On May 3, 1989,
claimant began a series of chiropractic treatments because
of acute cervical pain. Her last treatment was on June 7,
1989, at which time it was noted that she, "Has had very
little pain or discomfort." (ex. 6).
Claimant returned to work on May 25, 1989, for four
hours a day. On June 30, 1989, Dr. Washburn took her off
work again due to "all kinds of aches and pains in her back
and shoulder, arm, etc." (ex. 1, p. 16). Employer sent
claimant to Samuel R. Hunt, M.D., who released her for light
duty on July 31, 1989 (ex. 8). Dr. Hunt referred claimant
to the Mason City Clinic where she was examined by R.L.
Emerson, M.D., on August 9, 1989. Claimant's complaints
were referable to neck and back symptoms. X-rays of the
lumbosacral spine were normal. Neck x-rays were not taken.
Clinical examination revealed normal and full cervical spine
motion. Straight leg raising in the sitting and supine
positions was negative. Dr. Emerson recommended
anti-inflammatory medication (ex. 9).
On August 11, 1989, claimant was evaluated at the Mason
City Clinic by Thomas F. DeBartolo, M.D. After conducting a
physical examination, Dr. DeBartolo concluded that claimant
has some localized discomfort along the radiosensory nerve
on the right side. He arranged for an occupational therapy
program for desensitization over the area of the previous
surgical release (ex. 10). Meanwhile, Dr. Washburn
discharged her from his services on November 7, 1989 (ex. 1,
p. 17).
On November 30, 1989, claimant was reevaluated by Dr.
Hunt. He noted that she was having no right wrist
discomfort and full range of motion with no tenderness at
this time. Her strength was intact and she felt capable of
returning to work. She was advised against returning to the
same type of repetitive hand and wrist activity which caused
her initial symptoms (ex. 11).
Claimant returned to work on December 18, 1989. She
was placed in the dry sausage department where she did
significant lifting, pulling and clipping. She started
having problems with her arms, neck and shoulders.
On April 3, 1990, claimant was evaluated by James K.
Coddington, M.D. At this time, she presented with
complaints of right elbow pain as a result of making boxes
and peeling pepperoni. Diagnosis of lateral epicondylitis
Page 4
was made and she was put on light duty for one week. On
April 10, 1990, she presented to Dr. Coddington with
complaints of neck and right elbow pain. He diagnosed neck
strain and lateral epicondylitis. On April 18, 1990, she
presented with similar complaints. On examination, she had
fairly normal range of motion of the neck and good range of
motion of the elbow. He indicated that neck strain may be
more neck pain due to fatigue from not sleeping. Cervical
spine films taken on April 10, 1990, failed to reveal any
evidence of fracture, dislocation or other bone injury.
Claimant was referred by her attorney to Dr. DeBartolo
for a permanent impairment rating and assessment. He
reported in pertinent part as follows:
...The patient clearly had a work-related
deQuervain's [sic] and clearly has had an acute
worsening of her right upper extremity function
after that surgery. There is no specific
diagnosis that I believe can be made concerning
her right upper extremity soreness, muscle
tenderness, fatigability, etc. other than pain
dysfunction syndrome.
...
...Your client has finally come to the realization
that she is indeed not going to be able to perform
repetitive hand and wrist activities and that her
hope for the best possible resolution of this
problem lies with her obtaining vocational
retraining and into a line of work that is more
satifactory [sic] in terms of her physical
capabilities.
(exhibit 12)
Dr. DeBartolo noted that, "[M]y rating would be 20%
loss of the function of her right upper extremity secondary
to the development of pain dysfunction syndrome secondary to
surgery for a work-related deQuervain's [sic] release."
(ex. 10, p. 9).
Claimant saw Dr. Emerson on May 15, 1990, for
complaints of diffuse right lateral elbow pain. On
examination, she was neurologically intact. She had
palpable tenderness over the lateral epicondyle of the right
elbow. X-rays taken of the right elbow were negative. She
was injected with a cortisone solution. She was reevaluated
on May 22, 1990, and reported no improvement in her
condition with the injection. Dr. Emerson was unable to
determine the etiology of her right upper extremity symptoms
(ex. 9, pp. 3-6).
On July 2, 1990, Dr. Emerson and Dr. Coddington
indicated that they concurred with Dr. DeBartolo's 20
percent right upper extremity rating (exs. 17-19). On
September 7, 1990, Dr. Emerson wrote to the insurance claims
examiner that, "I feel that Ms. Cathy Kruse's signs and
symptoms are indicative of approximately 20% impairment to
Page 5
the upper extremity. I do not think that she had a
re-injured her shoulder in March of 1990, I think it is just
a continuation of the previous-type of symptoms." (ex. 20).
Being dissatisfied with these assessments, claimant's
attorney referred her to James E. Crouse, M.D., for an
independent medical examination pursuant to Iowa Code
section 85.39. Dr. Crouse saw claimant on October 22, 1990.
After reviewing the claimant's medical history and noting
her complaints, including neck pain, right shoulder pain,
pain in the right elbow, right wrist pain, loss of strength
in the right arm and wrist, stiffness and swelling in the
right wrist and fingers, and intolerance to any pulling and
cold weather, Dr. Crouse conducted an examination. On
examination, Dr. Crouse noted as follows:
...She is able to move around well. Examination
shows soreness in the back of the neck and into
the right trapezius muscle area. No atrophy is
noted in this area. She has good shoulder motion
in both shoulders but discomfort with right
shoulder motion...She has good motion of her neck
but discomfort particularly with flexion which
occurs down over the spinous processes of C-7 and
T-1. ...She has full motion of her shoulder, her
elbow and her wrist....
(exhibit 21)
X-rays of the cervical spine, wrist and elbow were
reviewed and were negative. Dr. Crouse indicated that the
examination was rather unremarkable except for the
discomfort and hyper-sensitivity. He felt that her primary
disabling problem is her secondary pain involving her entire
upper extremity including the neck and shoulder. He agreed
with a 20 percent permanent impairment rating involving the
upper extremities, but related it to a 12 percent impairment
of the body as a whole since the upper extremities included
the shoulder and neck (ex. 21).
On March 13, 1991, Dr. DeBartolo reported that, "I
believe that Mrs. Kruse's upper extremity problems began as
a result of her employment at Armour Foods doing repetitive
hand and wrist activities." (ex. 22). This activity
resulted in tendonitis that became localized to her first
extensor compartment in a condition referred to as de
Quervain's disease. As a result of the tendonitis, medical
and surgical treatment, she has a 20 percent permanent
partial impairment to her right upper extremity. It was his
opinion that she has not sustained any permanent injury to
her right shoulder or neck (ex. 22).
Claimant testified that she was taken off work on May
4, 1990. She stated she attempted to return to work in
October 1990, but was told by personnel that that company
had no job for her. In November 1991, as per the union
contract, she was terminated from Armour Food.
conclusions of law
Page 6
The primary issue to be determined in this case is
whether claimant's disability is to the arm, a scheduled
member, or to the body as a whole. A scheduled member loss
is compensated pursuant to the schedule set forth in Iowa
Code section 85.34, which is presumed to include
compensation for the reduced capacity to labor and earned
income. Schell v. Central Engineering Company, 232 Iowa 421
4 N.W.2d 399 (1942). An injury to the body as a whole is
compensated industrially; that is, to the extent to which
the injury reduces claimant's earning capacity. Second
Injury Fund v. Hodgins, 461 N.W.2d 454 (Iowa 1990).
An injury to a scheduled member which, because of
after-effects (or compensatory change), creates impairment
to the body as a whole entitled claimant to industrial
disability. Barton v. Nevada Poultry Co., 253 Iowa 285, 110
N.W.2d 660 (1961). Daily v. Pooley Lumber Co., 233 Iowa
758, 10 N.W.2d 569 (1943).
If a claimant contends she has industrial disability
she has the burden of proving her injury results in an
ailment extending beyond the scheduled loss. Kellogg v.
Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667
(1964).
Claimant bears the burden of proof to show that her
injury extends beyond the scheduled member into the body as
a whole. At the hearing and in the medical evidence,
claimant reported frequent instances where she experienced
pain in her shoulders and neck. However, physicians who
have treated and/or examined claimant gave permanency
ratings confined to the upper extremity. Claimant's
complaints of pain are not substantiated by the clinical and
laboratory findings in the record and therefore, cannot
substitute for an impairment. Waller v. Chamberlain Mfg.,
II Iowa Industrial Commissioner Report 419, 425 (1981).
Claimant has failed to carry her burden to show that
her injury extends to the body as a whole. The only
evidence supporting this contention is claimant's own
testimony and statements made by Dr. Crouse on October 22,
1990. Claimant saw Dr. Crouse on one occasion and for the
purpose of an independent medical examination. He relied on
claimant's statements of subjective complaints to support
his conclusions that her injury extended into the body as a
whole. There is substantial evidence in the record that the
pain described by claimant is the result of functional
overlay rather than her work injury.
In addition, there is no showing that claimant's right
elbow, neck and shoulder pain, even if caused by her work
injury, has resulted in permanent disability. X-rays taken
of claimant's right elbow in May 1990 were negative. Dr.
DeBartolo emphatically stated that claimant has not
sustained any permanent injury to her right shoulder or
neck.
The best evidence in this case is that claimant
sustained a 20 percent impairment to her right upper
extremity as a result of a work injury with employer. Upper
Page 7
extremity is not a scheduled under Iowa Code section 85.34.
The AMA Guides to the Evaluation of Permanent Impairment,
however, do speak of upper extremity impairments. For all
practical purposes, and particularly for the purpose of this
decision, the arm is coextensive with the upper extremity.
Loss of an arm is compensable during 250 weeks under Iowa
Code section 85.34(2)(m). Twenty percent of 250 weeks is 50
weeks.
Defendants have previously paid claimant weekly
compensation for the periods January 14, 1988 through
February 3, 1988; July 11, 1988 through October 23, 1988;
January 2, 1989 through May 24, 1989; June 30, 1989 through
December 18, 1989; and May 5, 1990 through September 24,
1990; as well as 20 percent permanent partial disability
benefits for loss of use of the right upper extremity.
Claimant is not entitled to any additional workers'
compensation benefits in file numbers 874897 and 951310.
The question that remains is whether claimant is
entitled to payment for an independent medical examination
under Iowa Code section 85.39.
This code section provides that 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, then the employee is entitled to an examination
by a physician of the employee's own choice and the
reasonable and necessary transportation expenses incurred
for the examination.
An application for an independent medical examination
under Iowa Code section 85.39 need not precede the
examination if the claimant is satisfied to wait until the
hearing to be reimbursed provided that this is designated as
a hearing issue on the hearing assignment order. Pirozek v.
Swift Independent Packing, file number 803955 (1986). Dr.
DeBartolo indicated a 20 percent impairment rating to the
right upper extremity on May 9, 1990. Dr. Coddington and
Dr. Emerson concurred with this rating on July 2, 1990. Dr.
Crouse's evaluation was performed on October 22, 1990, which
was subsequent to the aforementioned evaluations. Defendant
employer does not dispute the reasonableness of the medical
expenses incurred in the independent medical examination
conducted by Dr. Crouse. Accordingly, pursuant to Iowa Code
section 85.39, defendant employer is liable for payment of
Dr. Crouse's examination and claimant's reasonable necessary
transportation expenses incurred for the examination.
order
THEREFORE IT IS ORDERED:
Defendant employer shall pay claimant for expenses
incurred in obtaining an independent medical examination
pursuant to Iowa Code section 85.39.
Claimant takes nothing further in file numbers 874897
and 951310.
Page 8
Signed and filed this ____ day of December, 1991.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Robert S. Kinsey, III
Attorney at Law
214 N Adams
PO Box 679
Mason City, IA 50301
Mr. Marvin Duckworth
Attorney at Law
2700 Grand Ave., STE 111
Des Moines, IA 50312
Page 1
51803.1 52502
Filed December 3, 1991
Jean M. Ingrassia
before the iowa industrial commissioner
____________________________________________________________
:
CATHY M. KRUSE, :
:
Claimant, :
:
vs. :
: File Nos. 874897 & 951310
ARMOUR FOOD COMPANY, :
: A R B I T R A T I O N
Self-Insured, :
Employer, : D E C I S I O N
:
and :
:
HARTFORD INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
51803.1
Claimant was found to have a work-related injury diagnosed
as de Quervain's syndrome. She underwent tenosynovectomy
with release of the de Quervain's contracture. Initially,
her complaints were confined to her right hand and wrist.
Subsequently, she alleged numerous aches and pains extending
from her arm into her shoulder and into her neck.
Physicians who treated and examined her over a two-year
period gave her a 20 percent permanent impairment rating to
the right upper extremity. Five months later, an
independent medical examiner stated that based on claimant's
subjective complaints of pain, her loss of use extended into
the body as a whole. The only evidence supporting this
contention was claimant's own testimony. This testimony was
out of proportion to the clinical and laboratory findings in
the record and none of her treating physicians found that
her injury extended to the body as a whole. Claimant
appeared to have a significant degree of functional overlay.
It was found that claimant failed to carry her burden to
show that her injury extended to the body as a whole.
52502
Claimant was found entitled to the costs, including
transportation, of an independent medical examination under
Iowa Code section 85.39.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
LARRY J. SIMOENS, :
: File No. 951312
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
QUAKER OATS COMPANY, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Larry J.
Simoens, claimant, against Quaker Oats Company, employer
(hereinafter referred to as Quaker), a self-insured defen
dant, for workers' compensation benefits as a result of an
alleged injury on December 10, 1988. On October 28, 1991, a
hearing was held on claimant's petition and the matter was
considered fully submitted at the close of this hearing.
The parties have submitted a prehearing report of con
tested issues and stipulations which was approved and
accepted as a part of the record of this case at the time of
hearing. The oral testimony and written exhibits received
during the hearing are set forth in the hearing transcript.
According to the prehearing report, the parties have
stipulated to the following matters:
1. An employee-employer relationship existed between
claimant and Quaker at the time of the alleged injury.
2. Claimant is seeking temporary total disability or
healing period benefits for three days namely May 9, 1989,
May 10, 1989 and March 7, 1991. Defendant agrees that
claimant was not working during these periods of time.
issues
The parties submitted the following issues for determi
nation in this proceeding:
I. Whether claimant received an injury arising out
of and in the course of employment;
II. The extent of claimant's entitlement to disabil
ity benefits;
III. The extent of claimant's entitlement to medical
benefits; and,
IV. The extent, if any, of claimant's entitlement to
Page 2
penalty benefits.
findings of fact
Having heard the testimony and considered all the evi
dence, the deputy industrial commissioner finds as follows:
Claimant has worked for Quaker in various jobs since
1973 and continues to do so at the present time. He testi
fied at hearing that he plans on working at Quaker until he
retires. At the time of the alleged injury, claimant was
assigned to the job of car strapper which, in part, required
claimant to open and close heavy doors on railroad boxcars.
Claimant's permanent work assignment is that of a warehouse
attendant which primarily involves driving a forklift truck.
In this job, he must also place pallets into a palletizer.
Claimant is occasionally bumped out of this position at
times when the work at the plant is slow at which time he
then is assigned to the job of chute attendant which
requires claimant to stack boxes of materials onto pallets.
On or about December 10, 1988, claimant injured his low
back while attempting to pull shut a railroad car door.
Claimant said that he experienced the onset of immediate low
back pain at the belt line level of his back. Claimant was
then sent for treatment by Quaker to Mercy Hospital.
Physicians at the hospital diagnosed low back strain and
prescribed rest, cold packs and medication to relax
claimant's back muscles and relieve pain. Claimant was
released to return to work following this injury on December
12, 1988. Claimant testified that he was injured on a
Friday and returned to work on the following Monday.
Claimant said that his back was sore when he returned to
work but he used a forklift truck to close the railroad cars
for a period of time. He stated that the pain lasted for a
couple of weeks and was "not much of a problem" until he was
assigned to a chute attendant job. This job requires repet
itive lifting and stacking of 18 to 24 pound boxes from a
waist high conveyor to pallets on the floor. Claimant said
that after he was assigned to this work he missed a couple
of days in May 1989 and again in March 1990 as a result of
the onset of additional symptoms from the job. Claimant has
since bid into his current classification of warehouse
attendant in order to receive more money and obtain easier
work. Claimant's current classification pays 40 to 60 cents
per hour more than the chute attendant job. Claimant
states, however, that he is occasionally bumped out of his
current classification and assigned back to the chute atten
dant job. At the time of hearing he had been performing the
chute attendant job for the last three weeks.
Page 3
With reference to past injuries, claimant has three prior
car accidents between 1963 and 1983 none of which involved
an injury to his low back. Two of these injuries involved
the development of neck problems. In 1987 claimant suffered
a work injury to his hands when they were caught in rollers
at work. Claimant suffered mild permanent partial
impairment from these hand injuries but there has been no
permanent work restrictions imposed as a result of the
injury.
Claimant suffered two prior incidents of low back pain
according to the medical records of Mercy Care North, a
family practice clinic. In March 1988, claimant injured his
low back after operating a chain saw at home. The diagnosis
was back sprain and claimant was off work for approximately
five days. Claimant testified that he could not recall this
incident of back pain. In May 1989, claimant experienced
another incident of back pain and sought medical treatment
but did not report any specific injury to his physicians.
Due to the lack of supportive medical opinion, claimant
failed to show that he suffered permanent partial impairment
from the injury of December 10, 1988. Claimant's treating
physicians for the injury did not render an opinion in this
matter. Claimant was evaluated by John R. Walker, M.D., an
orthopedic surgeon in July 1990. According to Dr. Walker,
claimant has a two percent permanent partial impairment as a
result of his low back condition. Dr. Walker further opined
that his findings in the low back region were the result of
injuries claimant suffered while working at Quaker Oats.
However, despite an extensive description of claimant's
medical history in his report, no mention is made by Dr.
Walker of claimant's prior back problems in March 1988 or in
May 1989. At hearing, claimant explained that he did not
mention any of these problems to Dr. Walker because he did
not recall them. It is assumed that claimant is truthful on
this point. However, the fact remains that Dr. Walker
issued his causal connection opinions in this matter based
upon an incorrect history. Therefore, his views could not
be given much weight in this proceeding.
On the other hand, claimant was evaluated by another
orthopedic surgeon, W. J. Robb, M.D., in November 1990. Dr.
Robb, according to his reports, was aware of claimant's full
past history with reference to his back problems. Dr. Robb
opines that claimant only suffered a temporary aggravation
sprain of his back in December 1988. He states that
claimant suffers from degenerative disc disease and degener
ative arthritis of the low back which will cause recurrent
episodes of back pain with repetitive bending and lifting
activity. As Dr. Robb has a more complete history and there
is no evidence to suggest that Dr. Robb's qualifications are
any less than those of Dr. Walker, greater weight must be
given to the views of Dr. Robb in this proceeding.
Page 4
Although claimant failed to show a causal connection between
his current back problems and the work injury of December
1988 at Quaker, it should be noted that even if claimant had
established such a causal connection, claimant failed to
provide any evidence of loss of earning capacity as a result
of his back condition at the present time. Claimant
continues to perform his work at Quaker without loss of pay
or benefits. In fact he is at the present time making more
money than he did at the time of the injury.
Furthermore, claimant failed to show that his absence
from work in May 1989 and in March 1991 was due to the work
injury of December 10, 1988. Given the views of Dr. Robb,
recurrent back problems from claimant's work activity is due
to claimant's non-work related degenerative disc disease and
would be expected. Consequently, each occurrence of pain
probably constitutes a separate aggravation work injury.
These incidents of back pain would be unrelated to the
aggravation of injury that he experienced in December 1988,
the subject of this litigation.
Claimant has shown that the expenses of Dr. Walker are
causally connected to the work injury. However, Dr.
Walker's services were that of an evaluation and not for
treatment of the back condition. Dr. Walker did not recom
mend any course of treatment to improve claimant's back con
dition. Obviously, the report was prepared at the request
of an attorney for litigation purposes.
conclusions of law
I. Claimant has the burden of proving by a prepon
derance of the evidence that claimant received an injury
which arose out of and in the course of employment. The
words "out of" refer to the cause or source of the injury.
The words "in the course of" refer to the time and place and
circumstances of the injury. See Cedar Rapids Community
Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto
Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An
employer takes an employee subject to any active or dormant
health impairments, and a work connected injury which more
than slightly aggravates the condition is considered to be a
personal injury. Ziegler v. United States Gypsum Co., 252
Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited
therein.
In the case sub judice, the evidence is almost uncon
troverted that claimant suffered a work injury. However,
the fighting issue is whether such a work injury was
causally connected to compensable disability.
II. The claimant has the burden of proving by a pre
ponderance of the evidence that the work injury is a cause
of the claimed disability. A disability may be either tem
porary or permanent. In the case of a claim for temporary
disability, the claimant must establish that the work injury
was a cause of absence from work and lost earnings during a
period of recovery from the injury. Generally, a claim of
permanent disability invokes an initial determination of
whether the work injury was a cause of permanent physical
Page 5
impairment or permanent limitation in work activity.
However, in some instances, such as a job transfer caused by
a work injury, permanent disability benefits can be awarded
without a showing of a causal connection to a physical
change of condition. Blacksmith v. All-American, Inc., 290
N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co.,
288 N.W.2d 181 (Iowa 1980).
The question of causal connection is essentially within
the domain of expert medical opinion. Bradshaw v. Iowa
Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
The opinion of experts need not be couched in definite, pos
itive or unequivocal language and the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa
1974). The weight to be given to such an opinion is for the
finder of fact, and that may be affected by the completeness
of the premise given the expert and other surrounding cir
cumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965).
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal connec
tion, such testimony may be coupled with nonexpert testimony
to show causation and be sufficient to sustain an award.
Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d
911, 915 (1966). Such evidence does not, however, compel an
award as a matter of law. Anderson v. Oscar Mayer & Co.,
217 N.W.2d 531, 536 (Iowa 1974). To establish compensabil
ity, the injury need only be a significant factor, not be
the only factor causing the claimed disability. Blacksmith,
290 N.W.2d 348, 354. In the case of a preexisting condi
tion, an employee is not entitled to recover for the results
of a preexisting injury or disease but can recover for an
aggravation thereof which resulted in the disability found
to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963).
In the case sub judice, claimant failed to show a
causal connection between the work injury and permanent
impairment or permanent disability. It was found that
claimant suffered a temporary aggravation of a preexisting
condition which resulted in two days of absence from work in
December 1988. However, to be compensable under Iowa Code
section 85.32, a work injury must result in an absence from
work for more than three days. Claimant was absent from
work at other times in 1989 and 1991 as a result of back
problems but this was due to separate temporary aggravation
work injuries at the time. Claimant failed to show that the
underlying cause for the recurrent symptoms was anything
other than degenerative disc disease which is unrelated to
the work injury in this case.
III. Pursuant to Iowa Code section 85.27, claimant is
entitled to payment of reasonable medical expenses incurred
for treatment of a work injury. However, evaluations from a
physician for the purposes of litigation are not reim
bursable under this code section. If claimant desired a
reimbursement of his expenses for Dr. Walker, he should have
raised the issue under Iowa Code section 85.39. This was
Page 6
not done in this case.
IV. Claimant raised an issue of unreasonable denial
of benefits under the fourth unnumbered paragraph of Iowa
Code section 86.13. However, it is the holding in this
decision that claimant is not entitled to disability bene
fits, therefore, the penalty issue is moot.
order
1. Claimant's petition for workers' compensation bene
fits is denied and this petition is dismissed.
2. Claimant shall pay the costs of this action pur
suant to rule 343 IAC 4.33.
Signed and filed this ____ day of December, 1991.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert R. Rush
Attorney at Law
526 2nd Ave SE
P O Box 2457
Cedar Rapids IA 52406
Mr. James M. Peters
Attorney at Law
1200 MNB Bldg
Cedar Rapids IA 52401
5-1803
Filed December 12, 1991
LARRY P. WALSHIRE
before the iowa industrial commissioner
____________________________________________________________
:
LARRY J. SIMOENS, :
: File No. 951312
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
QUAKER OATS COMPANY, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
5-1803
Claim denied. Failure to show work injury caused
compensable disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
TRACY RENDALL,
File No. 951316
Claimant,
A P P E A L
IBP, INC., D E C I S I O N
Employer,
Self-Insured,
Defendant.
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
October 29, 1991 is affirmed and is adopted as the final agency
action in this case.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this 25th day of August, 1992.
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. David D. Drake
Attorney at Law
West Towers Office
1200 35th Street STE 500
West Des Moines, Iowa 50265
Ms. Marie L. Welsh
Attorney at Law
P O Box 515 Dept #41
Dakota City, Nebraska 68731
9998
Filed August 25, 1992
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
TRACY KENDALL,
File No. 951316
Claimant,
A P P E A L
vs.
D E C I S I O N
IBP, INC.,
Employer,
Self-Insured,
Defendant.
9998
Summary affirmance of deputy's decision filed.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
TRACY KENDALL, :
:
Claimant, :
:
vs. :
: File No. 951316
IBP, INC., :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant. :
:
___________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on September 24, 1991, in
Des Moines, Iowa. This is a proceeding in arbitration
wherein claimant seeks compensation for permanent partial
disability benefits as a result of an alleged injury
occurring on September 24, 1989. The record in the
proceeding consists of the testimony of claimant, Connie
Coker, Cheryl Knezevich, and Don Webster; joint exhibits 1,
pages 1-21 and pages 36-57, joint exhibits 2, 3, 5 through
9; and claimant's exhibit 1A, pages 22-35.
issues
The issues for resolution are:
1. Whether claimant's alleged September 24, 1989
injury arose out of and in the course of his employment;
2. Whether claimant's alleged disability is causally
connected to his alleged September 24, 1989 injury;
3. The nature and extent of claimant's permanent
disability and entitlement to disability benefits;
4. The rate for any benefits that would be awarded;
5. Claimant's entitlement to 85.27 medical benefits,
the issue being causal connection, reasonableness and
necessity; and
6. Whether claimant gave proper notice under Iowa Code
section 85.23.
Page 2
findings of fact
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant is a 31-year-old high school graduate who is
currently enrolled in the Des Moines Community College in an
accounting and business law course. He hopes to be a high
tech medical equipment repairer, repairing hospital
equipment and electric scanner machines, etc. Claimant has
no other educational skills and indicated his four weeks of
military airborne schooling is not useable in a civilian
job.
Claimant was in the service in April 1983 to April 1987
and March 1988 to April 1989, all totaling six years, three
months.
Claimant described the rigorous military training and
the nature of his job while in the service. Claimant
described his service injuries, namely: Right knee hurt May
10, 1988, playing basketball as part of his service
training. This prevented claimant from doing his squad
duties which involved rigorous work; claimant injured his
back in 1984 and was in Walter Reed Hospital eventually in
September 1986. He had no treatment for his back after this
and no restrictions; claimant hurt his right knee again in
January 1989 when another soldier hit him from behind
causing claimant to hit his knee on the concrete. An
arthroscopy of the right knee was performed and claimant was
discharged in April 1989 because of this injury. Claimant
was unable to run without a brace support. Claimant was
given service compensation for his right knee injury.
Claimant said he received an honorable discharge which was
based on his medical.
Claimant described his work history prior to beginning
work for defendant employer in August 1989. This work
mainly involved working at auto parts stores, making
deliveries, lifting up to 50 pounds and receiving a little
more than minimum wage.
Claimant began working for defendant employer in August
1989 as a laundry production worker washing uniforms. After
one and one-half months, he was promoted in the middle of
1989 to supervisor of nine people and was paid $18,500 per
year annual salary beginning with this new position. Prior
to this promotion, claimant was making about $6.10 per hour.
This supervisor job was referred to as a showcase supervisor
and entailed receiving work orders, scheduling hours and
time off, determining maintenance work within the plant,
etc.
Claimant said that on September 24, 1989, while doing
maintenance work and pulling hoses in place, he was going
down the stairs and his right foot slipped and his right
knee popped. He did not fall as he caught himself on the
rail. Claimant said he couldn't move his knee. This date
(a Sunday) was a nonproduction day at defendant employer's
plant. Claimant helped another person, Don Webster, during
Page 3
August and September 1989 because of the extra work that
needed to be done at IBP. This extra work was done on
weekends, when the plant was in a nonproduction status.
Claimant related he reported his injury 15 to 20
minutes after it happened to a Mike Watkins. He said he
later told Pam, the nurse, and she said to go to the VA
Hospital. Claimant emphasized he could not report his
injury to the nurse on this September 24, 1989, as the nurse
was not there on a nonproduction day. Claimant acknowledged
this was the same knee he had trouble with in the service
but this current problem was different and it hurt more.
Claimant sought medical care at the VA Hospital on September
26, 1989, and was unable to do his regular duties at IBP.
Claimant said he began wearing a brace and couldn't do the
climbing of the ladders and on the rafters.
Claimant had his right knee reconstructed November 29,
1989, and the parties agree claimant was off work through
October 3, 1990. Also, there is no disagreement that
claimant received a salary continuation under defendant
employer's benefit plan from October 17, 1989 through
January 17, 1990. This was a benefit to which salaried
employees were entitled.
Claimant missed no work prior to September 24, 1989.
He was released to work in February 1990, as a supervisor,
but said he ended up doing labor-type work and was unable to
do it. Claimant was then released on October 3, 1990, by
the VA doctors.
In November 1990, claimant had screws removed from his
right knee which were placed there during his November 1989
surgery. Claimant had follow-up surgery (arthroscopy) on
June 18, 1991, which was to shape the patella.
Claimant said tat he noticed low back pain in February
1990, which was different than his 1985 mid-back problems
that occurred when he was in the service.
Claimant described his current problems which he has
had since his September 24, 1989 alleged injury. Claimant
contends he cannot stand over one hour, his right knee
throbs, hard surfaces affect the knee, sitting more than 15
to 20 minutes causes his knee to hurt, he cannot kneel on
his right knee, cannot carry over 50 pounds, has problems
sleeping, and his walking is limited. He indicated he can
now walk only two or three miles versus 10 to 20 miles prior
to his alleged injury. Claimant indicated the weather also
affects his knee and he has stopped playing golf and
basketball, except he did indicate he has golfed the last
part of 1990 and twice in 1991. Claimant said he could run
with a brace on his right leg prior to September 24, 1989,
but he cannot now.
Claimant said he worked at another employer in October
1990 until January 1991, as a mailer and then as a machine
mechanic until April 1991, at which time he quit over a
dispute. Claimant is now in school through the V.A.
vocational rehabilitation department and has his full
Page 4
tuition paid and also has received assistance allowance.
Claimant acknowledged he received from the armed
services a 50 percent disability payment as a result of his
right knee injury in the service due to a 75 percent tear of
the anterior cruciate ligament of his right knee. This
would appear to be a result of his January 1989 military
injury but the records are confusing. He originally injured
his right knee in May 1988 while in the service and this
January 1989 incident obviously affected claimant's already
injured right knee (Joint Exhibit 1, page 37). Claimant
related the compensation he received as a result of his
military injury. He also set out this information in joint
exhibit 6, page 14, the answer to interrogatory number 16.
On cross-examination, claimant was questioned as to
whether he truthfully disclosed all his medical history.
Claimant admitted he did not disclose his attempted suicide
in 1983, which he claims was due to his service-connected
knee injury and family problems
Claimant was extensively questioned as to his work day
of September 24, 1989 (a Sunday), and his contention that he
was working with Don Webster. Claimant admitted that time
and attendance reports had to be filled out for the days the
employee worked. Claimant was shown these records which
indicted on September 24, 1989, that Webster was not working
that day. The corporate personnel earnings for the week of
Monday through Sunday, September 24, 1989, showed Webster
was not at work that day.
Claimant disagreed with a VA record that indicates
claimant's knee had been giving out once a month prior to
September 24, 1989, and that he told the VA it was not work
connected (Jt. Ex. 1, p. 3). Claimant also denied he told
the plant manager not to worry about his knee as it was not
work connected.
Claimant said he did not discuss with Lonnie Jepsen
whether his September 24, 1989 alleged injury was work
related or not. Claimant did not know if he reported his
injury to Cheryl Foutch, the workers' compensation
coordinator. He emphasized he told his supervisor and
Lonnie Jepsen.
Claimant acknowledged he wore a right leg brace prior
to working for IBP but insists it was not like his current
brace.
Claimant indicated that since he was on a service-
connected right knee disability, if his leg gets worse it is
re-evaluated and the VA Administration does not care what
the cause of the worsening condition is as long as it is not
intentionally caused by the claimant. Claimant indicated
the VA Administration pays the additional amount and the
rating is not affected by the nature of the additional cause
of the right knee being affected. The disability increases
regardless of the cause. Claimant indicated he received
more military benefits from the VA in June 1991, after his
surgery.
Page 5
Connie Coker, a nurse at IBP, testified it is her
responsibility to take care of the physical therapy records
and documents and the employees' visits to the medical
dispensary area and to process the workers' reports about an
occupational injury. She knows claimant and his job as a
supervisor. She related claimant never reported his own
injury but had reported as a responsibility of a supervisor,
other employees' injuries. She recalled on September 27,
1989, claimant spoke to her and said he had a service-
connected injury and did not report that he injured himself
on the job (Jt. Ex. 1, p. 55). She acknowledged she sat
through the entire hearing and heard claimant say he told
Mike Watkins of his injury. Ms. Coker said Watkins never
reported any injury of claimant to her. She said Watkins is
a conscientious person and has reported injuries of
employees in the past. She indicated she has no evidence of
claimant's injury from Watkins.
Ms. Coker recalled claimant's returning from VA
Hospital with a doctor's note and claimant never said it was
work related. In fact, she emphasized that she asked
claimant and he denied any work injury. It is obvious this
note from the doctor was not in the evidence and no one knew
where it was, but Ms. Coker emphasized there was a note and
it existed somewhere at one time. She said she met with
claimant before he went to the VA Hospital and she is not
the one who suggested claimant go there. Claimant said he
was going to go there. She emphasized that if the claimant
said he had received a work injury, she would have noted it
on the records.
Cheryl Knezevich testified she is currently director of
nursing at a care center in Stratford, Iowa. She worked
full-time at IBP June 1989 through February 1990, and then
part-time through 1990. At IBP, she was staff nurse and
gave physicals, hearing tests and treated injuries. She
knows claimant and emphasized claimant never told her of his
work injury. She acknowledged her initials on October 13,
1989, that claimant was wearing a knee brace-immobilizer,
but claimant never told her it was because of a work injury.
She acknowledged she never noticed any pre-September 24,
1989 knee problem with claimant.
Don Webster testified he began working for defendant
employer in August 1989, and knows claimant by working with
him in certain jobs with defendant employer. He also worked
with claimant's brother. He testified he worked with
claimant on the extra hours crew on Saturday and Sunday and
knew claimant wanted extra hours. Defendant employer just
opened up the plant and needed extra workers to get certain
jobs done when the plant was not in its weekly operation.
Claimant was his supervisor on this extra hour crew. They
were referred to as showcase employees. Webster said he was
with claimant when he was hurt slipping on the steps while
walking through the hose area. He said after the slip,
claimant could hardly walk. After this incident, he never
directly worked with claimant again but two days later
noticed claimant on crutches.
Page 6
Webster could not recall any date but in relation to
the time the plant opened for business, he placed the
claimant's slip at work around the latter part of September
1989.
Webster was shown a work record indicating he wasn't
working on September 24, 1989, but he said he was paid. He
does not have the date written down. He couldn't recall who
else was present that day working and also in the
supervisory position.
Cheryl Foutch testified by way of deposition (Jt. Ex.
9(1)), on September 6, 1991. She worked for defendant
employer from April 1989 to April 1991, as to being the
workers' compensation coordinator. She dealt with work
injuries of the employees. She knows claimant through the
work place of IBP. She said claimant was a salaried
supervisor. She indicated claimant never told her of a work
injury. She said claimant brought a note to the employer
prior to his beginning work indicating a restriction of no
jumping at any time (Jt. Ex. 9(1), p. 6). Claimant said
this restriction was service connected.
Ms. Foutch said she first knew of claimant's injury
only when she was served with a petition. She explained
claimant never related to her that he had incurred a work
injury. She acknowledged she never had any real contact
with claimant after September 24, 1989, except she had to
run him off the premises several times after he had come
back to the premises. She said any information claimant
gave her that his knee was injured was that it was service
connected prior to September 24, 1989.
Lonnie Jepsen testified by way of deposition on
September 10, 1991 (Jt. Ex. 9(2)) that he has been employed
with IBP since October 1984 involving IBP's Madison, Perry
and Storm Lake plants. He was at the Perry plant on May 1,
1989 through October 15, 1989. He was personnel director
most of the time of his employment with IBP. He related his
duties. He was acquainted with claimant. He was familiar
with claimant's promotion from an hourly laundry worker to a
showcase supervisor, which is a salaried management
position.
Jepsen related the 90 day leave of absence with full
pay given to management personnel. Claimant had to request
the leave which he did as he planned to undergo knee surgery
(Jt. Ex. 9(2), p. 9). Jepsen understood claimant was having
surgery for a lingering military injury. Jepsen was never
told by anyone that this injury of claimant was the result
of a knee injury at work. He related a conversation with
claimant in January 1990, at which time Jepsen also had an
injury. He emphasized to the claimant at that time that if
claimant had a work injury, he must let him know as he would
not be entitled to sick leave if he had a workers'
compensation injury. Jepsen said claimant said then he
didn't think his knee injury was work related and he was
going to seek payment of his medical benefits through G.I.
benefits. Jepsen said claimant never indicated he had ever
slipped at work but in the January 1990 conversation with
Page 7
claimant, he indicated he had fallen. This was when he told
claimant that if the injury was work related, he must know.
Claimant indicated then that it was not work related (Jt.
Ex. 9(2), p. 16). Jepsen indicated he did not notice any
physical problems claimant had prior to September 24, 1989,
and that claimant appeared to be able to do his job.
Joint exhibit 1, page 3, dated September 26, 1989,
indicates claimant had a knee injury in 1988 and had
arthroscopy on August of 1988 and January of 1989.
Claimant's right knee goes out of place once a month. The
record indicates claimant's knee gave way two days ago.
Although the record (handwriting) isn't very clear, it
appears claimant had a 75 percent deficiency in his knee
prior to September 24, 1989 (Jt. Ex. 1, p. 4).
Joint exhibit 1, page 11, refers to claimant's May 1988
knee injury; his accident in January 1989, when he fell
again; and his November 1989 Iowa City surgery, for repair
and reconstruction of the ischial ligament. The undersigned
notes nothing about a September 1989 injury. This seems to
be in accordance with claimant's alleged comments to
defendant employer's personnel that he had surgery because
of the military injury and not because of any work-related
injury. The undersigned notes that in looking at the VA
Administration records, it was not until December 18, 1990,
for the first time, that claimant referred to a work injury
(Jt. Ex. 9(1), p. 17). Claimant filed his petition on
August 28, 1990.
Joint exhibit 1, pages 45 and 46, the Iowa Methodist
Low Back Institute notes, do not reflect any work injury
contention in claimant's history. It refers to a low back
pain beginning after his November 8, 1989 right knee
surgery. Joint exhibit 5, page 11, shows that as of
September 6, 1989, claimant was a salaried employee with a
salary of $18,500 per year, or $355.77 per week. Prior to
this date it appears to indicate claimant was paid $6.10 per
hour. Although the records are not that clear, it appears
claimant began working at this hourly rate at the time he
was hired, which also appears to be on or around August 3,
1989. There was approximately five weeks claimant got paid
at the $6.10 per hour, which amounted to $240 gross per week
based on a 40 hour week and there was two weeks claimant was
paid at the $355.77 gross salary wage ($18,500 divided by 52
weeks).
Claimant alleges he incurred an injury that arose out
of and in the course of his employment. There is a question
as to whether claimant was even working on September 24,
1889, and more particularly, as to whether one or more of
his fellow workers were also at work that day. Taking
everything as a whole, the undersigned believes claimant was
working on a Sunday and that Sunday was September 24, 1989.
As to whether claimant incurred an injury that arose out of
and in the course of his employment, the undersigned
believes that there was an incident at work on that day in
which claimant's leg went out and that he happened to be at
work at that time. The undersigned also believes that
Page 8
claimant's preexisting knee condition resulting from a
military injury was such that it made claimant's knee
susceptible to going out and that this is, in fact, what
happened. It appears from the record that claimant had been
having knee problems and that his leg went out approximately
once a month. The undersigned does not believe that the
work itself had anything to do with the knee going out other
than the fact that claimant was walking on stairs. The
undersigned does not find that an injury actually occurred
but that because of claimant's military preexisting knee
injuries claimant's knee was in such a condition that it was
susceptible of going out at any time and when it would go
out would not be predictable. The undersigned finds that
there is no material or substantial work aggravation of his
preexisting military injury. The mere fact that claimant's
knee went out at his place of employment does not mean that
he incurred an injury that arose out of and in the course of
his employment. The undersigned finds that this injury
actually resulted from claimant's preexisting knee problems
that were service connected and that it was that injury, in
fact, which substantially and materially caused claimant to
incur a worsening of his knee condition. Claimant did not
incur a work injury that arose out of and in the course of
his employment.
It appears claimant desires to have his cake and eat it
both in that he does not give a history until December 1990
as to incurring a work injury. He goes to the VA
Administration for his military injury and receives
substantial monetary benefits all based on the fact that he
had a military injury which required additional surgery and
became worse over a period of time. Key personnel with
defendant employer knew nothing of claimant's claim of a
work injury until claimant filed his workers' compensation
petition in August 1990. It appears claimant is trying to
collect from two sources for the same injury, and taking two
different positions depending on the source from which he is
attempting to collect.
The resolution of this issue actually disposes of this
case but the undersigned will touch upon some additional
issues.
Claimant has failed to sustain his burden to show that
his claimed disability is causally connected to any work
injury. The greater weight of evidence supports the fact
that claimant incurred a military service connected injury
and that this injury has gotten worse, requiring additional
surgeries, but that claimant had a knee condition that would
cause the knee to give out. There is no medical testimony
that causally connects claimant's condition to a work-
related injury on September 24, 1989.
As to notice, the undersigned finds that defendant had
notice of a medical complaint even though it would appear
that any notice they had was as to a service connected
preexisting injury. The undersigned does not feel that an
employee must know the particulars and the legal and medical
Page 9
status of an injury in order to have the employer's notice
to be in compliance with 85.23, Iowa Code. Evidence shows
defendant employer did know of medical problems with
claimant on or around September 27, 1989.
As to the issue of rate, in light of this decision, the
undersigned will not go into any detail other than to
indicate that claimant was a salaried employee on the date
of his injury and normally would come under section
85.36(5), except that since claimant had been employed less
than 13 calendar weeks (approximately seven full weeks)
immediately preceding the injury, any rate would be based on
85.36(7). Any rate would be based on taking the respective
weeks in which claimant was getting an hourly pay and the
weeks claimant was getting an annual weekly salary and
adding those weeks together and dividing them by the number
of weeks involved to reach a rate. The undersigned finds
that 85.36(6) alone would not be the basis for figuring any
rate as contended by the defendants.
Claimant is not entitled to any 85.27 medical benefits
in light of the fact that the undersigned has found that
claimant did not incur an injury that arose out of and in
the course of his employment. If, in fact, there had been
that finding and causal connection found, then claimant
would have been entitled to 85.27 medical benefits based on
the premise that defendant had denied liability and
therefore claimant was entitled to seek medical benefits.
conclusions of law
Claimant has the burden of proving by a preponderance
of the evidence that claimant received an injury on
September 24, 1989 which arose out of and in the course of
his employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Central Telephone Co., 261
Iowa 352, 154 N.W.2d 128 (1967).
The injury must both arise out of and be in the course
of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246
Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406
of the Iowa Report. See also Sister Mary Benedict v. St.
Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (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 (1955).
The words "in the course of" refer to the time and
place and circumstances of the injury. McClure v. Union
et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa
402, 68 N.W.2d 63 (1955).
The claimant has the burden of proving by a
preponderance of the evidence that the injury of September
24, 1989 is causally related to the disability on which he
now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516,
133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa
296, 18 N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Page 10
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
The Iowa Supreme Court cites, apparently with approval,
the C.J.S. statement that the aggravation should be material
if it is to be compensable. Yeager v. Firestone Tire &
Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S.
Workmen's Compensation sec. 555(17)a.
Iowa Code section 85.36(7), provides:
In the case of an employee who has been in the
employee of the employer less than thirteen
calendar weeks immediately preceding the injury,
the employee's weekly earnings shall be computed
under subsection 6, taking the earnings, not
including overtime or premium pay, for such
purpose to be the amount the employee would have
earned had the employee been so employed by the
employer the full thirteen calendar weeks immedi
ately preceding the injury and had worked, when
work was available to other employees in a similar
occupation.
It is further found that:
Claimant did not incur an injury that arose out of and
in the course of his employment on September 24, 1989.
Claimant did not show that his disability was causally
connected to an injury that arose out of and in the course
of his employment.
Claimant had a preexisting knee condition that was an
active condition at the time of claimant's alleged injury on
September 24, 1989, and that this prior military-connected
injury was the material and substantial cause of claimant
receiving a worsening of his knee condition on or around
September 24, 1989, resulting in additional surgeries.
Any compensation that would have been payable had
liability been found would have been payable under the
provisions of Iowa Code 85.36(7). Claimant is not entitled
to have his medical bills paid under the provisions of 85.27
because of the prior findings herein. If it had not been
for claimant failing to prove that he incurred an injury
that arose out of and in the course of his employment and
that there was causal connection between his alleged
disability and said injury, then said medical benefits would
have been payable by defendant because defendant had denied
liability.
Claimant gave the employer sufficient notice of an
alleged injury even though said matter of notice would
indicate that any injury that may have occurred was a
nonwork injury. Defendant at least had knowledge of a
circumstance allegedly occurring so as to sufficiently
comply with 85.23 of the Iowa Code.
Page 11
order
THEREFORE, it is ordered:
That claimant takes nothing from these proceedings.
That each of the parties shall pay their own costs of
this action, pursuant to rule 343 IAC 45.33.
Signed and filed this ____ day of October, 1991.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr David D Drake
Attorney at Law
West Towers Office
1200 35th St Ste 500
West Des Moines IA 50265
Ms Marie Welsh
Attorney at Law
Dept #42
P O Box 515
Dakota City NE 68731
5-1100; 5-1108; 2800
Filed October 29, 1991
Bernard J. O'Malley
before the iowa industrial commissioner
____________________________________________________________
:
TRACY KENDALL, :
:
Claimant, :
:
vs. :
: File No. 951316
IBP, INC., :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant. :
:
___________________________________________________________
5-1100; 5-1108
Found claimant did not incur an injury that arose out of and
in the course of his employment and that there was no causal
connection of his alleged disability and his alleged work
injury.
2800
Found claimant did give sufficient notice of an incident at
work which was concluded to be a nonwork injury. Claimant's
incident at work was substantially and materially caused by
a military service-connected injury which was causing
claimant's right knee to give out monthly prior to his
alleged work injury in which his knee gave out.