BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
PAUL CUNNINGHAM,
Claimant,
vs.
File No. 951767
JAMES SCHMITZ MASONARY a/k/a,
GENE SCHMITZ,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
HERITAGE INSURANCE,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition of
claimant, Paul Cunningham, against his former employer, James
Schmitz Masonry a/k/a Gene Schmitz, and its insurance carrier,
Heritage Insurance Company, defendants. Claimant filed his
petition on January 20, 1993. In his petition he requested
workers' compensation benefits for an alleged work-related
injury. In the prehearing conference report, which was jointly
filed by the parties, the attorneys for the litigants indicated
they would be ready for hearing on or after April 1, 1994.
According to the hearing assignment order, the matter was set for
a back-up hearing date on September 14, 1994.
The hearing was held on the aforesaid back-up hearing date
at the Pine Crest Building in Waterloo, Iowa. The parties
offered joint exhibits 1-5. The joint exhibits included two
depositions of the claimant which were taken on February 24, 1993
and on August 17, 1994, and two depositions of the surgeon,
Arnold Delbridge, M.D., which were taken on August 31, 1994 and
September 7, 1994.
After the joint exhibits were admitted, claimant rested
without presenting additional evidence on direct examination.
Defendants then proceeded with their case. The following
witnesses testified on behalf of defendants: Marceline Schmitz,
bookkeeper and spouse of defendant; Ronald Dew, former foreman
for Gene Schmitz; Tracy Payne, former employee of Gene Schmitz;
Scott Stork, private investigator; and, Don Caffrey, also a
private investigator.
After defendants presented their case, claimant called two
rebuttal witnesses. Claimant testified on rebuttal. James
Cunningham, father of claimant, also testified as a rebuttal
witness. Their testimonies were limited to rebuttal matters.
ISSUES
The issues to be determined are: 1) whether claimant
sustained an injury which arose out of and in the course of his
employment; 2) whether there is a causal relationship between the
alleged injury and any temporary or permanent disability; 3)
whether claimant is entitled to any healing period or permanent
disability benefits; 4) whether claimant is entitled to any
medical benefits pursuant to section 85.27 of the Iowa Code; 5)
whether claimant is entitled to certain costs pursuant to rule
343 IAC 4.33; and, 6) whether claimant is a credible witness.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The deputy, having heard the testimony and considered all of
the evidence makes the following findings of fact and conclusions
of law:
The burden of proof is on the party asserting the
affirmative of an issue in an administrative proceeding; "on the
party who would suffer loss if the issue were not established."
Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 1973); Norland v.
Ides, 412 N.W.2d 904 (Iowa 1987).
The claimant has the burden of proving by a preponderance of
the evidence that the alleged injury actually occurred and that
it arose out of and in the course of employment. McDowell v.
Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v.
Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words
"arising out of" refer to the cause or source of the injury. The
words "in the course of" refer to the time, place and
circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d
415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa
1971).
The claimant has the burden of proving by a preponderance of
the evidence that the injury is a proximate cause of the
disability on which the claim is based. A cause is proximate if
it is a substantial factor in bringing about the result; it need
not be the only cause. A preponderance of the evidence exists
when the causal connection is probable rather than merely
possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa
1974).
The question of causal connection is essentially within the
domain of expert testimony. The expert medical evidence must be
considered with all other evidence introduced bearing on the
causal connection between the injury and the disability. The
weight to be given to any expert opinion is determined by the
finder of fact and may be affected by the accuracy of the facts
relied upon by the expert as well as other surrounding
circumstances. The expert opinion may be accepted or rejected,
in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903
(Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa
1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867
(1965).
Claimant is 30-years-old. He has a limited education and he
does not have a high school diploma or its equivalency. He is
functioning in the borderline range with respect to his
intellectual abilities (Exhibit 4-27). According to Eva
Christensen, Ph.D., and clinical psychologist, claimant's
"Academic achievement is learning disabled for reading, in terms
of word recognition, and in expressive written language. . ."
(Ex. 4-26).
At the time of the hearing, claimant was divorced from his
third wife. He has one child, Rachel, from the marriage to his
first wife. Claimant testified he did not know the whereabouts
of his eldest child and he had not seen his first wife for ten
years.
Claimant has two children by his second wife. They were
both born prior to the date of the alleged work injury. At the
time of the hearing, those children resided with their mother,
who is the custodial parent. Claimant testified he provided
support to those two children but that as of the date of the
alleged injury date, claimant resided with his parents in Elk Run
Heights rather than with his second wife. Claimant was divorced
from his second wife after the date of the alleged work injury.
Also, after the date of the alleged work injury, claimant
had another child who was born to claimant and his third wife.
That marriage took place after the alleged work injury date, but
it ended in divorce prior to the date of the workers'
compensation hearing. Claimant testified his third wife left
him because he could not find a job (Ex. 1-5). As of the date of
the hearing, the child from the third marriage resided with the
mother, the custodial parent. Claimant believed his youngest
child resided in Jessup, Iowa.
At the time of his second deposition, claimant testified
that he had lived with his parents from 1992 to 1993 and then he
moved into the home of a woman who lived at 220 River Forest
Road, Evansdale. Claimant testified he lived there for one year.
Claimant testified that since August of 1994, he had been
residing with another woman and that they had lived together in
Independence, Iowa. However, claimant testified she had moved to
Fort Dodge three weeks prior, and that just two days prior to the
date of the deposition, he had moved there and, he was again
residing with her. He stated he was financially dependent on
her. During his rebuttal testimony, claimant testified he
resided at 336 Ave. F in Fort Dodge, Iowa.
Defendants vigorously questioned claimant's credibility.
The issue of credibility is central to the resolution of this
claim. The credibility of a witness is always an issue which
must be determined by the deputy industrial commissioner.
In their brief, defendants argued:
Claimant is a completely dishonest person who has
defrauded the workers' compensation carrier, Social
Security Administration, Internal Revenue Service, and
his own doctors. The evidence in this case proves
claimant's dishonesty to a certainty, and any award to
claimant would involve sheer speculation on the part of
the deputy as to whether any particular thing said by
the claimant is true.
Since defendants challenged claimant's credibility, they
conducted surveillance of claimant on at least eight separate
days. The deputy industrial commissioner reviewed the videotapes
in detail. She relied heavily on the tapes as evidence of
claimant's condition. There is no doubt in this deputy's mind
that claimant lacks credibility. He is not a credible witness.
It is apparent that much of claimant's testimony is in direct
contradiction to the events portrayed in the three videotapes
which were submitted as evidence. The three videotapes reveal
claimant performing many activities which he had earlier
represented were too difficult for him to attempt. Claimant was
viewed walking with a normal gait even though his surgeon, Arnold
Delbridge, M.D., had only observed claimant walking with an
antalgic gait. Claimant was able to push manually a pick-up
truck with a camper. Claimant could hop in and out of vehicles
without difficulties, even though he had indicated that driving
caused him excruciating pain. Claimant was seen bending over the
hoods of automobiles, despite his claims that bending and
reaching increased his level of pain. Claimant was even depicted
jogging from the auto shop to another vehicle.
Claimant is not a credible witness. Claimant's versions of
the injury varied. He made numerous inconsistent statements
regarding the alleged work injury. It is impossible to determine
which, if any, version is accurate. On the date of the alleged
work injury, claimant was examined by HoSung Chung, M.D., at
Covenant Medical Center. Dr. Chung issued his consultation
report (Ex. 4-6). In his report, Dr. Chung recorded the history
which claimant reported to him. Dr. Chung noted:
HISTORY: This 25 year old white male, divorced,
construction worker, was brought into the emergency
room by his fiancee with a history of injury to his low
back. According to his elaboration, he works as a
construction worker, and lifted a cement block which
was about 45 pounds in weight at around 9 a.m. today.
He noted a sharp pain at the low back at that instant.
He informed his supervisor, but he was asked to
continue to work until around noon time. Because of
increasingly severe low back pain and numbness of toes
of both feet, he was seen by Dr. Widen at around 3:30
p.m. The patient was sent here for further evaluation
and care.
PAST MEDICAL HISTORY: The patient had similar
incident of low back injury by lifting a big box while
working at a cheese factory in Minnesota about a year
ago. He was evaluated in Mayo Clinic, was diagnosed to
have a herniated disc of the low back and was
recommended surgery. However, he declined the idea of
surgery and continued to work as a construction worker
despite he was told not to do so.
. . . .
IMPRESSION: 1. Low back injury, exact pathology
unknown.
(Ex. 4-6)
The patient history in the clinical note of the Iowa Medical
Clinic, P.C., reveals a different version of the injury. The
note indicates:
Paul J. Cunningham is a 27 year old resident of Elk
Run, Iowa. He presents at the direction of Heritage
Insurance for an independent medical evaluation. The
patient tells me that he was injured on the 22nd of May
1990. He was carrying two 64 pound blocks up a plank
into a pick-up, when he felt pain and his back popped
and he dropped the blocks and fell off the plank. He
had severe back pain at that time and numbness in his
legs. He states the foreman refused to take him to the
hospital and that he walked about five miles to the
hospital. . . .
(Ex. 4-143)
In his first deposition, claimant testified that he was
carrying cement blocks which weighed approximately 40 pounds
each. He maintained the then working foreman, Ron Dew, started
yelling at him to carry four blocks at a time rather than the two
which claimant was carrying. Claimant then testified:
A. And so I went up to the plank a couple times to
carry four blocks, two in each arm, and probably about
the fourth, fifth time when I was going up there,
carried two blocks in each arm, then I went down. I
twisted and I heard something pop, and I couldn't move
and lost my balance and fell off the plank.
Then I landed there, and I had tears in my eyes
and looked straight up, and Ron started yelling at me,
and he said, "Either get up or find a new job." And I
says, "Ron, I'm in pain. I can't move. . . ."
(Ex. 1-36,37)
Defendants called two former employees to testify. They
testified about the events which allegedly occurred on May 22,
1990. Both Ron Dew and Tracy Payne had been on the job site on
the date in question. Claimant and the two witnesses were
engaged in masonry work. Mr. Dew was the mason, Mr. Payne was
the tender, and claimant was described as a "gofer." Claimant
had worked for defendant employer for approximately six weeks.
Mr. Dew had been the supervisor on the construction project.
He had worked for defendant-employer for approximately 25 years
until he terminated his employment relationship in February of
1991. He was a disinterested witness. His testimony is found to
be credible. Mr. Dew testified:
Q. On May 22, 1990, were you aware at any point
during the day of Mr. Cunningham sustaining a work
injury?
A. No, I was not.
Q. I want to read to you Mr. Cunningham's testimony
from Exhibit 1, page 36, line 19, which has been
admitted into evidence in this case.
. . . .
Q. . . ."And I went up there again and Ron started
yelling at me, said some naughty things and stuff, and
he says, if you don't start picking up four blocks at a
time, you might as well find another job, because
somebody like you probably never worked hard your
entire life." Now, the part I want to refer you to is
the part about telling him to carry four blocks at a
time. As I understand it from what you have just said,
they weigh 42 pounds each?
A. (Nods yes.)
DEPUTY COMMISSIONER: You have to give a verbal
response, sir.
A. Right.
Q. And what is the case, did you ever tell Paul
Cunningham to carry four blocks at a time --
A. No.
Q. -- on that day?
A. No, I did not.
Q. Did you ever tell Paul Cunningham to carry four
blocks at a time at any time on any day?
A. No, I did not.
Q. Did you ever tell any employee, ever, to carry
four blocks at a time?
A. Not eight inch block, no.
Q. Now, what is the fact so far as you are
concerned about whether one could carry four eight inch
blocks at a time on any kind of sustained basis?
A. Not sustained. We have played around through
the years trying to prove points, et cetera, and it is
possible to pick up four block. And I suppose it's
possible to carry them a short distance. But that
would be the extent of it. It would take a pretty good
size person to pick up that much weight and bulk and
move it any distance.
Q. Other than seeing somebody some time or other do
that to prove they could do it --
A. Uh-huh.
Q. -- have you ever seen anybody work on a job in
that manner?
A. No.
Q. And did you see anybody on the job that day
working in that manner?
A. No, I did not.
Q. Now, I would like to read further from the same
deposition, and this time it is page 36, line 19. "And
so I went up to the plank a couple times to carry four
blocks, two in each arm, and probably about the fourth,
fifth time when I was going up there, carried two
blocks in each arm, then I went down. I twisted and I
heard something pop, and I couldn't move and lost my
balance and fell off the plank. Then I landed there,
and I had tears in my eyes and looked straight up, and
Ron started yelling at me, and he said, either get up
or find a new job. And I says, Ron, I'm in pain. I
can't move. Then it was 9:45, and he says, it's break
time. And I says, Ron, I need to go to the hospital.
He says, there's nothing wrong with you. You just
probably pulled a muscle. You just got to deal with
it."
Now, did you see Paul at any time carrying four
blocks?
A. No, I did not.
Q. Did you see him at any time on a plank carrying
four blocks?
A. No, I did not.
Q. Did you see him fall from a plank?
A. No, I did not.
Q. And did you see him laying on the ground looking
straight up?
A. No, I did not.
Q. And did you yell at him while he was laying on
the ground looking straight up?
A. No, I did not.
Q. Did he at any time during the day request to go
to the hospital?
A. No, he never asked me.
Q. Now, during the course of the day, did there
come a time when you and Paul got into a row?
A. Yes, there was.
. . . .
Q. Tell me about the argument and to its
conclusion?
A. We probably argued for a couple minutes, yelling
at each other. I don't know how much time elapsed from
that particular point, but he grabbed his lunch box,
and as he was going by where I was working he yelled at
me and told me, he says, not quote, but he said I hope
somebody shoots you and puts you out of your misery.
He turned around and walked at a fast pace down the
driveway. And that was the last I saw of him.
Q. Now, before he left did he tell you he was
leaving because he had been injured, or did he tell you
he had been injured on the job?
A. No, he did not.
Q. Or did he tell you that he was leaving because
his back hurt?
A. No, he did not.
Q. When you saw him walking down the drive, as far
as you could -- I'm sorry, that's about as leading a
question as you can get. When you saw him going down
the drive, did you see any sign of any discomfort in
the way he walked or acted?
A. No, he walked out at a fast pace. He looked
normal to me.
(Transcript, pages 48-54)
Next, Tracy Payne testified on behalf of his former
employer, the defendant. He too was a disinterested witness.
Mr. Payne was also working on the same construction project on
the day in question. He terminated his employment relationship
with defendant after the date of the alleged work injury. Mr.
Payne worked until November of 1993. Mr. Payne's testimony
corroborated the testimony of Mr. Dew. Mr. Payne was a credible
witness. Payne's testimony was quite different from the
testimony claimant had given in his first deposition.
During direct examination, Mr. Payne stated under oath:
Q. On May 22, 1990, what job were you working on?
A. I don't remember where it was. It was an
addition on a house. It was outside of town. I don't
remember what town it was in.
Q. And what was the project that Gene Schmitz
Masonry was responsible for? What were they supposed
to do?
A. The foundation of the addition.
Q. And then other contractors took over at that
point?
A. Yes.
Q. On May 22, what was the work being performed on
that day?
A. We were pouring the footing and laying the block
for the addition.
Q. During the course of the day, was Paul
Cunningham also working on the job?
A. Yes.
Q. And during the course of the day, did you at any
time see Mr. Cunningham sustain an injury on the job?
A. No.
Q. And at any time during the course of the day did
he tell you that he had sustained an injury on the job?
A. No. He told me his back hurt.
Q. Now, I'm going to read to you from his
testimony, which is Exhibit 1, page 36 and line 7.
"And I went up there again, and Ron started yelling at
me, said some naughty things and stuff, and he says, if
you don't start picking up four blocks at a time, you
might as well find another job, because somebody like
you probably never worked hard your entire life." Now,
the part I want to refer you to is the part about Ron
telling Paul to carry four blocks at a time. In the
first place, Ron was the foreman, is that right?
A. Yes.
Q. At any point during that day, did you ever hear
Ron tell Paul to carry four blocks at a time?
A. No.
Q. What kind of blocks were there that you were
working with that day?
A. They were 8 by 8 by 16 inches.
Q. And how much do those weigh, if you know?
A. Roughly 40 pounds.
Q. Did you hear Ron tell anybody to carry four
blocks at a time on that day?
A. No, I never have.
Q. Did you ever hear Ron tell anybody to carry four
blocks at a time on that day or any other day?
A. No.
Q. Do you believe it is -- well, have you carried a
lot of block in your career?
A. Yeah.
Q. Can four blocks at a time be carried on a
sustained basis?
A. Not for very long. You could do it, but you're
asking for trouble.
Q. Have you ever known on any work site where
people have been as a matter of practice asked to carry
four blocks at a time?
A. No.
Q. For this employer or any other?
A. No.
Q. Let me now read you another part of the
testimony at page 36, line 19 of Exhibit 1. Again Mr.
Cunningham's testimony. "And so I went up to the plank
a couple times to carry four blocks, two in each arm,
and probably about the fourth, fifth time when I was
going up there, carried two blocks in each arm, then I
went down. I twisted and I heard something pop, and I
couldn't move and lost my balance and fell off the
plank. Then I landed there, and I had tears in my eyes
and looked straight up, and Ron started yelling at me,
and he said, either get up or find a new job. And I
says, Ron, I'm in pain. I can't move. Then it was
9:45, and he says, it's break time. And I says, Ron, I
need to go to the hospital. He says there is nothing
wrong with you. You just probably pulled a muscle.
You just got to deal with it."
Now, let me ask you about the part that says "I
twisted and I heard something pop, and I couldn't move
and lost my balance and fell off the plank." Did you
see that occur?
A. No.
Q. Did you at any time see Mr. Cunningham laying on
the ground looking up while Ron was yelling at him?
A. No, I didn't.
Q. During the course of the morning, did at some
point Paul and Ron get into a row about anything?
A. Yeah.
Q. Tell me what happened?
A. We were supposed to point the top two courses of
the addition that are above ground, and Ron told him to
do that. And he was pointing below the ground.
Q. By he, do you mean Paul Cunningham?
A. Paul was, yeah. And Ron said they don't have to
be pointed below the ground. And he said nobody told
him that. And Ron said he did tell him that. And they
started arguing.
Q. Describe the argument?
A. That was pretty much all I really paid attention
to.
Q. Were they yelling at each other or were they
calm or what?
A. It wasn't very calm.
Q. Were either or both of them using profanity?
A. Yeah, if I remember right.
Q. Which one, or both?
A. I couldn't say for sure. I just remember they
were yelling.
Q. Was it a loud argument?
A. Yeah, pretty loud.
Q. Angry?
A. (Nods yes.)
Q. How did it conclude?
A. I don't know if it was right after that or when
it was, but Paul ended up leaving.
Q. When Paul left, did you hear him say anything
about leaving because he had been injured, or leaving
because he wanted to go to the hospital?
A. Not that I remember.
(Tr., pp. 77-82)
Claimant told an entirely different version during his
rebuttal testimony. Claimant testified:
Q. And did you first bring a load of concrete block
to the job site that morning?
A. Yes.
Q. And what did you do after you arrived?
A. Oh, I backed the truck up. And there was a big
trench. It kind of goes like this (indicating). Ron
was right here (indicating). Tracy was up here
(indicating). And there was a plank going across.
Probably about as long as this table. And I was
handing them to Tracy, and he was stacking them over
here (indicating). Because Ron was here, and the
trench was here, and I was on this side (indicating).
Q. So you're saying that you were handing the
concrete blocks out to Tracy?
A. Yes.
Q. And you were handing them off after having
picked them up from the bed of the truck?
A. Right.
Q. And this is the flatbed sort of trailer truck we
have heard described here today?
A. Yeah, it's a big truck, yes.
Q. And how high off the ground is the bed of that
truck?
A. Well, the last time, in '90 it came up to about
right here on me (indicating).
Q. Are you indicating about a foot below your chin?
A. Yes. It was a high truck.
Q. And how tall are you, sir?
A. Six foot.
Q. So approximately five feet high?
A. Yes.
Q. And so it was customary to use a plank to get
the loads off this vehicle?
A. Yes.
Q. And would you describe for us how you were
picking up the concrete blocks?
A. I was stacking them up on their side. And I was
putting two here and two here (indicating), when Ron
was yelling at me. And I was --
Q. Now permit me to ask you, when you say two here
and two here, you mean two separate concrete blocks?
A. Yes.
Q. And each of the concrete blocks would be
vertical?
A. Yes.
Q. And each of those concrete blocks had holes in
them?
A. Right.
Q. Two sets of holes?
A. Yes.
Q. So depending on what side you were of these
vertical concrete blocks, on two sides you could look
through and see through the holes?
A. Right.
Q. Okay. And you had two vertical piles of them?
A. Yes.
Q. And then what did you do?
A. I picked them up.
Q. And how would you do that?
A. I went like this and put the blocks two on each
arm (indicating), and I carried them like this down the
plank.
Q. So when you say you went like this, since we
don't have a camera here, that means that you were
sticking your left and your right arm through the top
holes of each of the two blocks on either side?
A. Yes.
Q. And then what would you do?
A. And I walked down the plank off the truck and
handed them to Tracy across the gutter or whatever you
call that.
DEPUTY COMMISSIONER: Across the what, sir?
A. Gutter or the trench.
Q. And did you set them down when you were doing
this?
A. Yes, I set them down like this (indicating).
And then they will stack on top of each other.
Q. Then Tracy will take them from there?
A. I will hand them to him one at a time.
Q. And in the course of doing that that day, did
anything -- what happened to you that hurt you?
A. Well, that morning, it was a quarter to 10, it
was sprinkling that morning, and it was muddy out there
when I arrived with the truck, and I was going up there
-- it must have been about 75 to a hundred blocks left
to unload. And I walked up there, grabbed two more,
walked down, got halfway, the right foot was on the bed
and the left foot was on the plank, and I twisted. It
popped. I heard it pop. I couldn't move. I fell off
the truck. And I asked Ron to come over here to help
me.
Q. Now, where was Ron at that time?
A. He was inside the gutter or that trench.
(Tr., pp. 151 to 155)
During cross-examination, defendants' counsel questioned
claimant concerning any explanation for the difference in the
testimonies of the witnesses. Claimant could provide no
reasonable explanation for the discrepancies. Mr. Dew and Mr.
Payne had no motivations for speaking anything but the truth
(Tr., p. 170). Claimant was not a credible witness. His
testimony did not instill confidence in his ability to tell the
truth. He was not believable.
Claimant has not proven that he sustained a work related
injury on or about May 22, 1990.
Although there are medical opinions which casually connect
claimant's condition to the alleged work injury, the opinions are
not persuasive. As a general rule, expert testimony, even if
uncontroverted, may be accepted or rejected in whole or in part
by the trier of fact. Lithcote Co. v. Ballenger, 471 N.W.2d, 64,
66 (Iowa App. 1991). The fact finder may not arbitrarily or
totally reject the offered testimony but has the duty to weigh
such evidence and credibility determinations. Catalfo v.
Firestone Tire & Rubber Co., 213 N.W.2d 506, 509 (1973). "When
an expert's opinion is based on an incomplete history it is not
necessarily binding on the commission or on the court."
Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128,
133 (1967).
In the instant case, the opinion of Dr. Delbridge regarding
the cause of claimant's injury was based on the history which
claimant verbalized to the surgeon. Dr. Delbridge causally
related claimant's condition to the work injury. However, Dr.
Delbridge did not have a complete history of claimant.
Therefore, this deputy does not accord any weight to Dr.
Delbridge's opinion.
Claimant failed to prove that he had sustained any injury
which arose out of and in the course of his employment. Since,
claimant failed to meet his burden of proof, claimant is not
entitled to benefits pursuant to the Iowa Workers' Compensation
laws.
ORDER
THEREFORE, IT IS ORDERED:
Claimant takes nothing further from these proceedings.
Costs are assessed to claimant pursuant to rule 343 IAC
4.33.
Signed and filed this ____ day of May, 1995.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. W. H. Gilliam
Attorney at Law
722 Water St
Waterloo IA 50703
Mr. Roger L. Ferris
Attorney at Law
1900 Hub Tower
Des Moines IA 50309
1400; 1402; 2600
Filed May 11, 1995
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
PAUL CUNNINGHAM,
Claimant,
vs.
File No. 951767
JAMES SCHMITZ MASONARY a/k/a,
GENE SCHMITZ,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
HERITAGE INSURANCE,
Insurance Carrier,
Defendants.
___________________________________________________________
1400; 1402; 2600
Claimant was unable to prove by a preponderance of the
evidence that he had sustained a work-related injury.
Claimant was not a credible witness. He made many
inconsistent statements when describing the alleged work
injury. There were three people on the job site on the date
in question. The other two employees did not witness the
alleged injury. Claimant could provide no explanation for
the discrepancies in the testimonies.
Additionally, defendants conducted surveillance on the
claimant. The events depicted on three videotapes were
quite different from the events which claimant was
describing.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
ELMER J. LATHROP, :
:
Claimant, :
:
vs. : File Nos. 959330
: 951789
ABILD CONSTRUCTION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
AETNA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
These are proceedings in arbitration upon the petitions
of claimant, Elmer Lathrop, against his employer, Abild
Construction Company, and its insurance carrier, Aetna
Insurance Company, defendants. The cases were heard on
March 9, 1992, at the Linn County Courthouse in Cedar
Rapids, Iowa. The record consists of the testimony of
claimant. The record also consists of the testimony of John
W. Hughes, vocational rehabilitation counselor with the Iowa
State Department of Vocational Rehabilitation; the testimony
of Leon Wurzer, ironworker, foreman; and Judith M. Stengel,
certified rehabilitation counselor. Additionally, the
record consists of the following exhibits: claimant's
exhibits 1-10, 12 and 14 and defendants' exhibits, pages
1-41.
issues
The issues to be determined are:
For file number 959330, July 3, 1990 -
1) whether claimant sustained an injury which arose out
of and in the course of her employment; 2) whether there is
a causal relationship between the alleged injury and any
temporary or permanent disability; 3) whether claimant is
entitled to any healing period or permanent partial
disability benefits; and 4) whether claimant is entitled to
any medical benefits pursuant to section 85.27.
For file number 951789, May 29, 1990 -
1) whether claimant is entitled to any healing period
or permanent partial disability benefits; and 2) whether
claimant is entitled to any medical benefits pursuant to
section 85.27.
Page 2
findings of fact
The deputy, having heard the testimony and considered
all the evidence, finds:
Claimant is a 52-year-old married man. Claimant
completed the sixth grade in school. He held various odd
jobs until he entered the United States Army. While in the
army, claimant worked as a heavy equipment operator. Only
months ago did claimant obtain a GED.
After his tour of duty, claimant entered the
construction industry as an ironworker. As of May 29, 1990,
claimant had been an ironworker for nearly 30 years.
Claimant's duties as an ironworker included climbing,
stooping, crawling, lifting and carrying equipment.
Additionally, claimant engaged in operating two speed
wrenches, large hammers, bolts and pins. Much of the work
required claimant to lift and carry from 50 to 120 pounds.
He even had to engage in overhead work. Most of the work
was performed outdoors.
At the time of the alleged injuries, claimant was
earning $15.83 per hour, plus pension, and health and
welfare benefits.
With respect to the injury date of May 29, 1990,
claimant had engaged in extremely heavy lifting. He, with
the assistance of co-workers, engaged in lifting in excess
of 300 pounds. Claimant testified he experienced back pain
which progressively worsened over the course of several
days. He sought treatment for low back pain on June 4,
1990. The hospital records reflect that: "Lifting weight @
work May 28, low back pain & stiffness since L>R..."
(Exhibit 7). Claimant was referred to John S. Koch, M.D.,
by his employer. Again claimant complained of low back
pain. Dr. Koch diagnosed claimant's condition as
"degenerative arthrosis of the lumbosacral area of the back
with associated strain." (Ex. 2, page 003)
Claimant returned to Mercy Care North for several more
visits concerning his low back pain. He was off work from
June 3, 1990 through June 24, 1990. Claimant returned to
work on June 25, 1990. He worked through July 3, 1990.
However, claimant testified that on July 2, 1990 and July 3,
1990, he was required to unload windows from the back of a
truck as well as lift and carry pallets. Claimant testified
he again experienced difficulties in his lower back.
On July 6, 1990, claimant sought medical attention from
Mercy Care North. The notes for that day reflect complaints
of low back pain.
On July 13, 1990, claimant returned to Dr. Koch because
of an "acute exacerbation of back pain after a therapy
treatment earlier this week at Mercy Care North." (Ex. 2,
page 003). Dr. Koch diagnosed claimant's condition as
"[a]cute exacerbation of degenerative disc disease of the
Page 3
lumbar spine." (Ex. 2, p. 004)
Later Dr. Koch modified his diagnosis to "an
aggravation of degenerative changes related to his work
activities." (Ex. 2, p. 004).
Claimant remained off work. Then on August 9, 1990, he
was involved in an automobile accident which was unrelated
to his work activities. The day following the automobile
accident, claimant treated with Lawrence C. Strathman, M.D.
Office notes for August 10th reveal that:
10 Aug 90: Elmer Lathrop comes in today stating
that he was involved in a motor vehicle accident
yesterday. This occurred at E Avenue and Third
Street N.W. He was hit by another car and the van
he was driving was turned around in the street.
He was not thrown out. A couple hours after the
accident, he began to develop neck pain, which got
worse through the night and then this morning he
is also aware of increased soreness in his low
back. He tells me that he has some numbness in
both hands, more of a burning sensation, more on
the left than on the right. This is more
localized over the dorsum of the hand. He is not
having pain into his arms. He has not been aware
of weakness. The pain in his neck is posteriorly.
On exam, there is no spasm, but there is decreased
motion. Flexes the chin onto the chest. Extends
a little beyond neutral. Rotation about 40o to
either side. He can barely tilt the ear to the
ipsilateral shoulder. There is tenderness to
palpation over the entire posterior cervical area
extending into the cervical dorsal area. Scapular
and shoulder motion is not restricted or painful.
Upper extremity strength is symmetric throughout.
Reflexes are intact, biceps, triceps, and radial.
There is no focal or radicular sensory change.
Low back is markedly restricted in all perimeters.
His reflexes, however, are 2+ at the knee and
ankle. There is some hamstring tightness at 110o.
Hip rotation is not painful. Lower extremity
strength is symmetrical and no definite sensory
loss is detected.
Elmer Lathrop's x-rays show significant
degenerative changes at 4-5 and 5-6. No evidence
of acute injuries. It appears that there is
aggravation of his degenerative problem and we are
putting him in a cervical collar, Motrin, and
Restoril at bedtime. We should check him in a
couple of weeks. (Lawrence C. Strathman,
M.D.)(RN)tls
(Ex. 2, p. 007)
Claimant continued treatment with Dr. Koch at the Iowa
Medical Clinic, P.C. An MRI was conducted which indicated
"significant cervical spinal stenosis most pronounced at the
Page 4
C4-5, C5-6 and C6-7 level." (Ex. 2, p. 009)
Claimant was referred to William Roberts, M.D., for a
second opinion. Dr. Roberts performed a "[p]osterior
foraminotomy at the C5-C6 level with opening door
laminoplasty from C4 through C6 with cervical fusion from C4
to C6." (Ex. 1, p. 002)
Subsequent to his surgery claimant participated in voca
tional rehabilitation at the Iowa State Department of
Vocational Rehabilitation. Claimant attended a class in
welding at Kirkwood Community College. However, he
testified he discontinued the class because of back pain.
Claimant did obtain his GED.
Other than to report to the union hall, claimant had
made no job applications after July 3, 1990. He did receive
unemployment benefits pursuant to the decision dated April
5, 1991, of Jerome H. Roberson, Administrative Law Judge.
At the time of the hearing, claimant was unemployed. He was
considering enrolling in a course of study for the position
of dental lab technician.
conclusions of law
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. The words "arising out of" refer to the
cause or source of the injury. The words "in the course of"
refer to the time, place and circumstances of the injury.
Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986);
McClure v. Union, et al., Counties, 188 N.W.2d 283, 287
(Iowa 1971).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296,
297 (Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
A personal injury contemplated by the workers'
Page 5
compensation law means an injury, the iexperienced low back pain on
July 2, 1990 or July 3, 1990, when he was unloading windows
from a truck. This is consistent with the activity claimant
reported to the medical provider on July 6, 1990. Then
there is the testimony of Leon Wurzer, claimant's foreman
from June 25, 1990 through July 3, 1990. Mr. Wurzer tes
tified that claimant did verbally report a work injury to
him. Claimant's version of the incidents leading up to his
back pain is credible. The other evidence corroborates
claimant's testimony. Claimant has proven that he had
sustained a work-related injury on July 3, 1990, and that
the injury involved claimant's lower back.
The next issue to address is whether the two work
injuries are causally related to claimant's alleged
condition. The parties stipulated that the May 29, 1990
injury caused both temporary and permanent disability. An
issue remains with respect to the July 3, 1990 injury. The
undersigned determines that the July 3, 1990 injury is
causally related to claimant's low back condition.
Claimant's already aggravated low back condition was further
aggravated by the lifting incident on July 3, 1990.
Claimant reported that his lower back felt worse after he
unloaded heavy windows (Ex. 7, p. 003). Claimant was placed
in physical therapy following the July 3, 1990 work injury.
His treating physician, Dr. Koch, opined that claimant had
sustained "[a]cute exacerbation of degenerative disc disease
of the lumbar spine." (Ex. 2, p. 004) Dr. Koch deemed "the
aggravation of degenerative changes" related to his work
Page 6
activities. (Ex. 2, p. 004) Medication was prescribed.
Claimant was not released to return to work (Ex. 2, p. 005).
It is clear to this deputy that the July 3, 1990 work injury
was causally connected to claimant's low back injury.
However, it is equally clear to the undersigned that
claimant's cervical condition is not related to any
work-related injury. Rather claimant's cervical condition
is related to claimant's degenerative arthrosis, as well as
to the motor vehicle accident which claimant sustained on
August 9, 1990. Prior to the motor vehicle accident,
claimant reported absolutely no problems with his neck,
shoulders, or upper extremities. Even claimant's treating
physician wrote to defendant-insurance carrier: "I have no
record or knowledge of any neck difficulty or injury to Mr.
Lathrop's neck prior to a car accident of August 1990."
(Ex. 2, p. 012).
Additionally, there is another report from the treating
orthopedic surgeon, Dr. Roberts. He writes in his report of
November 26, 1990: "The patient's cervical stenosis is not
related to an occupational injury of the lumbar spine. By
this I mean, the development of his cervical stenosis is not
occupationally related to the development of his lumbar
spinal stenosis." (Defendants' Ex. 5, p. 37)
Claimant's cervical spine condition is totally
unrelated to the work injuries in question. Likewise, the
motor vehicle accident only temporarily aggravated
claimant's low back condition. Claimant's low back
condition is degenerative and aggravated by claimant's work.
Dr. Roberts testified by deposition that the motor vehicle
accident did not have an impact upon claimant's employment.
(Ex. 12, p. 23, lines 17-21). Therefore, it is the
determination of the undersigned that had the motor vehicle
accident not occurred, claimant would have been able to
return to work from the July 3, 1990 work injury on
September 1, 1990.
Section 85.34(1) provides that healing period benefits
are payable to an injured worker who has suffered permanent
partial disability until (1) the worker has returned to
work; (2) the worker is medically capable of returning to
substantially similar employment; or (3) the worker has
achieved maximum medical recovery. The healing period can
be considered the period during which there is a reasonable
expectation of improvement of the disabling condition. See
Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa
App. 1981). Healing period benefits can be interrupted or
intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
Healing period benefits are awarded for the May 29,
1990 work injury for the period from June 4, 1990 through
June 24, 1990, at the stipulated rate of $380.66 per week.
With reference to the July 3, 1990 work injury, claimant is
entitled to healing period benefits from June 6, 1990
through August 31, 1990.
The next issue to address is the nature and extent of
claimant's permanent partial disability. Claimant argues
that he has sustained an industrial disability.
Page 7
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson, 255 Iowa 1112, 125 N.W.2d 251
(1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d
660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Peterson v.
Truck Haven Cafe, Inc., (Appeal Decision, February 28,
1985); Christensen v. Hagen, Inc., (Appeal Decision, March
26, 1985).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
Page 8
Dr. Koch, a treating orthopedic specialist, opines that
claimant has an eight percent permanent impairment as a
result of the work injury on May 29, 1990. (Def. Ex. 6, p.
39) He equates most of claimant's condition to the work
injury of May 29, 1990. (Def. Ex. 6, p. 38) After the May
29, 1990 work injury, claimant made a good faith effort to
return to work as an ironworker. Claimant performed the
duties assigned to him by his superiors. However, claimant
reinjured himself on July 3, 1990. After that date, his
physicians opined claimant would be unable to return to the
ironwork trade. Dr. Roberts then referred claimant to the
Iowa State Department of Vocational Rehabilitation.
Claimant has made a sincere effort to rehabilitate himself.
He has obtained his GED. He has unsuccessfully attempted a
welding course which he entered. He is seeking information
in the dental lab field. Claimant appears motivated. His
counselor, John Hughes, has testified that claimant has
encountered some academic
Page 9
challenges, but that claimant has a good chance of
completing the program. Claimant is to be commended as well
as encouraged.
Claimant's age is a negative factor. He is 52 years
old. He does not have many more years before he reaches
retirement age. Claimant has always worked in heavy labor
jobs which require physical strength. He has earned as much
as $16.58 per hour. Now he is unable to work in this
classification of the labor market. He is not capable of
earning the same rate of pay.
While Judith M. Stengel, a certified insurance
rehabilitation specialist, has testified that claimant's
access to the labor market has only been reduced by 14
percent, her testimony is discounted. Ms. Stengel had never
met claimant. Nor had she talked with claimant prior to the
hearing. All she did was write a vocational assessment.
She did not attempt placement. Ms. Stengel is less credible
than her counter-person, John Hughes, who has involved
claimant in retraining programs. Ms. Stengel's testimony is
not accorded much weight.
Finally there are the physical restrictions placed upon
claimant because of his low back injury. The restrictions
attributable to the two work injuries are:
C. Return to Work:
The following weight and activity restrictions
are based on the findings of the FCA:
1. Weight carry at waist level for 5 foot
distances - 45 feet on an occasional basis
2. Weight carry at waist level up to 100 feet
on an infrequent basis - 45 lbs.
3. Floor to waist lifting on an occasional
basis - 25 lbs.
4. Waist to overhead lift on an infrequent
basis - 25 lbs.
5. Waist to shoulder lift on an infrequent
basis - 25 lbs.
6. Pushing and pulling should require no more
than 82 lbs. of force to initiate
movement of an object and 77
lbs. of force to sustain movement
...
9. Squatting should only be done occasionally
(Ex. 9, pp. 006 - 007)
In light of the foregoing, and in light of the personal
observation of claimant, it is the determination of the
undersigned that claimant has a 60 percent permanent partial
disability. It is also the determination of the undersigned
that the permanent partial disability is allocated to the
injury of May 29, 1990, as detailed in defendants' exhibit
6, page 38. Claimant is entitled to 300 weeks of permanent
Page 10
partial disability benefits at the stipulated rate of
$380.66 and commencing on September 1, 1990, the date Dr.
Koch determined claimant could have returned to work if he
had not been involved in the motor vehicle accident.
The final issue to address is whether claimant is
entitled to certain medical benefits pursuant to section
85.27. Any treatment for the cervical stenosis is not
causally connected to either work injury. Therefore,
medical bills incurred for the neck, shoulders, or upper
extremities are not compensable under section 85.27. The
medical bills submitted in exhibit 10 are all related to the
cervical spine. They are not causally connected to the work
injury. Defendants are not liable for the expenses
requested in exhibit 10.
order
With reference to file number 951789, defendants are
liable for healing period benefits at the stipulated rate of
three hundred eighty and 66/l00 dollars ($380.66) per week
for three (3) weeks for the period from June 4, 1990 through
June 24, 1990.
With reference to file number 951789, defendants are to
pay unto claimant three hundred (300) weeks of permanent
partial disability benefits at the stipulated rate of three
hundred eighty and 66/l00 dollars ($380.66) per week
commencing on September 1, 1990.
With reference to file number 959330, defendants are to
pay unto claimant temporary benefits from July 6, 1990
through August 31, 1990, at the stipulated rate of three
hundred eighty and 66/l00 dollars ($380.66) per week.
Accrued benefits are to be paid in a lump sum together
with statutory interest at the rate of ten percent (10%) per
year pursuant to section 85.30, Iowa Code, as amended.
Defendants shall receive credit for all benefits
previously paid.
Costs are taxed to defendants pursuant to rule 343 IAC
4.33.
Defendants shall file a claim activity report as
requested by this division and pursuant to rule 343 IAC 3.l.
Page 11
Signed and filed this ____ day of April, 1992.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Jack C. Paige
Mr. James W. Affeldt
Attorneys at Law
700 Higley Building
P O Box 1968
Cedar Rapids, Iowa 52401
Mr. Thomas N. Kamp
Attorney at Law
600 Davenport Bank Building
Davenport, Iowa 52801
1803
Filed April 23, 1992
MICHELLE A. McGOVERN
before the iowa industrial commissioner
____________________________________________________________
:
ELMER J. LATHROP, :
:
Claimant, :
:
vs. : File Nos. 959330
: 951789
ABILD CONSTRUCTION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
AETNA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1803
Claimant was a 52-year-old ironworker who injured his back
while working. Claimant was determined to have a 60 percent
permanent partial disability. Claimant was highly
motivated. He obtained a GED in the recent past. He had
looked into additional training. He had participated in
vocational rehabilitation. Claimant was precluded from
returning to the job of an ironworker. He was preparing to
enter a course for dental lab work.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
CHAD E. PRESTHUS,
Claimant,
vs.
File No. 952215
BARCO INC. a/k/a BARCO
MANUFACTURING,
A P P E A L
Employer,
D E C I S I O N
and
HERITAGE INSURANCE COMPANY,
Insurance Carrier,
Defendants.
____________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal. The decision of the deputy
filed November 25, 1992 is affirmed and is adopted as the
final agency action in this case with the following
additional analysis:
Claimant urges that payments of permanent partial disability
should not be suspended during periods when claimant was
receiving temporary partial disability. Under claimant's
interpretation, claimant would receive double payments
during the weeks in question. There is no statutory
authority for this approach and the concept of double
payments contradicts the workers' compensation statutes.
Although the alleged bases for imposition of a penalty under
Iowa Code section 86.13 were not individually addressed in
the arbitration decision, the relevant conduct of the
employer was analyzed and it is determined that the conduct
does not warrant imposition of a penalty. The alleged
misconduct consisted primarily of late payments of certain
benefits. It is determined that the delays in payments were
not so substantial as to require imposition of a penalty.
Claimant also raises as an appeal issue when defendants are
entitled to credit for payments made to claimant, which in
turn affects the computation of interest due to claimant
under Iowa Code section 85.30. Defendants in their appeal
brief accede to claimant's interpretation that credit for
payment would begin on the date the payments were received
by claimant.
Claimant offered lay testimony that his disability extended
Page 2
beyond the arm and into the body as a whole. As a general
rule, pain alone does not extend an injury from a scheduled
member into the body as a whole. In addition, claimant's
lay witnesses were contradicted by the greater weight of the
medical evidence, which indicated that the injury was
confined to the arm. Greater weight will be given to the
medical evidence. Claimant's injury does not extend to the
body as a whole.
Claimant received an award of benefits through the
arbitration decision. Claimant has sought a review of that
award through the appeal process. It is appropriate that
the defendants pay the costs of the arbitration action, and
claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of November, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Mark S. Soldat
Attorney at Law
714 E. State St.
Algona, Iowa 50511
Mr. Eldon J. Winkel
Attorney at Law
P.O. Box 266
Algona, Iowa 50511
1100; 1108; 1803; 1808; 2209; 3002
1802; 5-1801.1; 3800; 4000; 1803.1;
2203
Filed November 30, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
CHAD E. PRESTHUS,
Claimant,
vs.
File No. 952215
BARCO INC. a/k/a BARCO
MANUFACTURING,
A P P E A L
Employer,
D E C I S I O N
and
HERITAGE INSURANCE COMPANY,
Insurance Carrier,
Defendants.
_________________________________________________________________
1100; 1108; 1803; 2209; 1808; 3002
Found claimant incurred a work-related simultaneous bilateral,
upper extremity, cumulative injury on April 20, 1990, which
caused claimant to incur 25 weeks of permanent partial disability
benefits under 85.34(2)(s) at a rate found to be $180.36.
1802; 5-1801.1; 3800
Claimant awarded two healing periods. Claimant awarded $317.22
of permanent partial disability benefits. Claimant awarded
interest. Parties disputed when and what was due.
4000
Claimant was not awarded 86.13 penalty benefits.
1803.1
Found claimant did not incur an industrial disability. He did
not injure his shoulders and did not incur a body as a whole
injury.
2203
Found claimant did not incur an occupational disease and cited
agency precedents in this area.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
CHAD E. PRESTHUS, :
:
Claimant, :
:
vs. :
: File No. 952215
BARCO INC. a/k/a BARCO, :
MANUFACTURING, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
HERITAGE INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on October 6, 1992, at
Fort Dodge, Iowa. This is a proceeding in arbitration
wherein claimant seeks compensation for permanent partial
disability benefits and compensation as a result of an
alleged injury or an occupational disease that occurred on
April 20, 1990. The record in the proceeding consists of
the testimony of the claimant, Beverly Carter, Wayne Tietz,
Carla Fraker, Harry Fraker, and Dave Schultz; claimant's
exhibits A and B; and joint exhibit 1.
ISSUES
The issues for resolution are:
Regarding occupational disease, the issues are:
1. Whether an occupational disease arose out of and in
the course of claimant's employment on April 20, 1990;
2. Whether there is a causal connection as to
claimant's alleged disability and the alleged occupational
disease;
3. The nature and extent of any permanent partial
disability and entitlement to disability benefits resulting
from an alleged occupational disease;
4. The rate at which any compensation would be paid;
5. Whether claimant is entitled to 86.13 penalty
benefits;
6. The amount of interest that may be due claimant ,
and the extent of credit that defendants are entitled to;
and,
Page 2
7. Whether claimant has failed to mitigate the extent
of any damages claimant may have otherwise been entitled to.
Regarding the alleged scheduled member cumulative
injury or body as a whole injury;
1. Causal connection as to claimant's alleged injury
and any permanency;
2. The nature and extent of claimant's permanent
disability and entitlement to disability benefits, if any;
3. The rate at which any benefits would be paid;
4. The amount of interest that may be due claimant,
and the extent of credit that defendants are entitled to;
and,
5. Whether claimant has failed to mitigate the extent
of any damages claimant may have otherwise been entitled to.
The parties were admonished as to the non-use of the
agency's prehearing report and order form. They used their
own prehearing report form. The undersigned understands
that the report filed was at the insistence of claimant's
attorney and that defendants desired to use the form used by
the agency and recognized as the form to be used. The
undersigned indicated that he no longer wanted from the
claimant any prehearing reports and orders that are on the
claimant's form but that any form to be used in the future,
at least as to this undersigned hearing any case, must be on
the agency's form. The agency form was prepared and adopted
by the agency for a reason. It is easier to follow, and is
one that the agency and deputy is used to.
FINDINGS OF FACT
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant is approximately 20 years old and began
working for the defendant employer in July or August 1989.
His hourly wage when he last worked was $6.55. Claimant
completed the ninth grade and has started to obtain his GED
but has not yet obtained it. He hopes to finish it this
year.
Claimant testified that he did manual labor jobs prior
to beginning work for defendant employer. Claimant said he
was in good health and was strong athletically before he
began working for defendant employer. He indicated he had
done remodeling work and had no trouble. He indicated that
after he began work with Barco, his health changed and he
had numbness in his hands and fingers that went into his
arms and shoulders. He indicated this pain or numbness did
not go away even on the weekends. He indicated he didn't
have the pain in the shoulders all the time, just once in
awhile.
Page 3
Claimant said lifting his arms above his head causes
his shoulder to hurt. Claimant had surgery and the doctor
then released him to work on July 2, 1991, but claimant
didn't go to work as he indicates defendant employer told
him to go to S.A. Mueller, D.C.
Claimant testified he returned to work on July 5 and
worked two hours on and two hours off. His testimony was
very incomplete in this area.
Claimant was treated by Dr. Mueller for one to two
months and indicated he got relief and felt good until he
returned to work. He was given splints, braces and pills
but said his hands were still swelling so he stopped using
the braces and splints.
Claimant returned to full-time duty on August 1, 1990,
but eventually became worse. He indicated his hands would
fall asleep and his shoulders would hurt. Claimant said his
boss had him go back to Dr. Mueller again on October 30,
1990. Claimant said he then saw another doctor, David A.
Carlyle, M.D., who then referred him to Michael W. Crane,
M.D., and Rajinder K. Verma, M.D.
Claimant said he was then prescribed work hardening but
had trouble getting to the facility because of illness and
no money for gas, but indicated he tried.
Claimant said he quit work with defendant employer on
November 5, 1990, and never returned.
Claimant said he was released by Dr. Crane on March 8,
1991, and looked for work. Claimant began working for a
construction company on September 11, 1991, at $6 per hour
and worked for two or three months. He said he voluntarily
quit this construction job because he was involved in a
motorcycle accident around October 11, 1991. In that
accident, he incurred a broken arm between the left elbow
and mid forearm. He also received scrapes and scratches.
Claimant said he had a different type of pain than he had
before but it has gone away now. He also acknowledged that
he has some back and neck aches that still come and go.
Claimant said he was in a motor vehicle accident when he was
16 and hurt his low back and still has back problems today
but not as bad as when he was 16. Claimant said the doctors
didn't recommend any different kind of work because of the
auto or motorcycle accidents.
Claimant then worked part-time for Quality Home Care at
minimum wage. He didn't indicate when this work occurred
but it was before he began working for a Chevrolet company
in May of 1992 at $4.65 per hour. Claimant said this job
was less repetitious but he was still having problems.
Claimant contends he always has pain in his hands, arms and
shoulders up to the top of his neck muscle. Claimant
indicated that his main job with defendant employer was
stapling but he did ask for different jobs after his injury.
Claimant was asked concerning his deposition testimony
in which he indicated he ran one to two miles per day before
Page 4
his alleged injury with defendant employer and left the
impression he can't run at the time of his deposition.
Claimant then testified at the hearing that he can run one
to two miles per day now. Claimant indicated he doesn't
take any kind of medication, prescription or
non-prescription. He disagreed with Dr. Crane's 5 percent
and 3 percent impairments and doesn't recall anyone else
rating him.
Carla Fraker, claimant's mother, testified that her son
has lived with her off and on and came back again in
December of 1990 because his house burned down. She
testified as to the excuse of why claimant wasn't able to go
the work hardening program. She said the excuse was mainly
because there was no other vehicle available to the
claimant. She indicated there was only one vehicle in the
family and that was an old car.
She said claimant's health was excellent and he had no
problems with his hands, arms or shoulders prior to working
for the defendant employer and that he was very muscular.
She indicated that when claimant began working for
defendant employer and was no longer living in his house the
first part of 1990, she would still have contact with him
every day and she noticed his health changing regarding the
use of his wrists. She indicated he would sit and shake his
hands and they would go to sleep and he would have to
stretch them out. She said that since he left defendant
employer in November of 1990, he is still exhibiting these
problems. She indicated claimant cannot function physically
as he did before and cannot do such things as open a jar
lid.
She indicated that when claimant would go for a
motorcycle ride he would go two blocks and have to come back
as he had no feeling in his hands. She did say that
claimant does ride the motorcycle sometimes. In her lay
person's opinion, claimant has a 100 percent loss of
function. She said claimant's condition is the same or
worse than it was before his surgery. She said claimant
didn't have carpal tunnel surgery, only a ganglion cyst
surgery. She said the cyst bothered him and when it was
removed, he was still tender in the area.
Harry Fraker, claimant's stepfather, testified. His
testimony was basically cumulative to his wife's testimony.
He did indicate that claimant could no longer ride his
snowmobile or the motorcycle, arm wrestle, has trouble
holding things up over his head, and cannot do any
remodeling. He offered a lay person's opinion that
claimant's functional loss was 50 to 75 percent of the use
of his arms and shoulders. Like his wife, Mr. Fraker's
opinion is based on observation.
David Schultz, a 23 year old welder, has known claimant
for seven years and is his best friend. He also works at
defendant employer and was in contact with claimant every
weekend between 1989 and 1992. He indicated he moved to
Ames two years ago. Part of that time he saw claimant every
Page 5
day as he was his room mate before he moved to Nevada. Mr.
Schultz testified that claimant had no arm, hand or shoulder
problems prior to working for Barco in 1989. Mr. Schultz
testified that before claimant worked for Barco, he was
around claimant and he arm wrestled. Claimant was never
able to beat him until one month ago. He also gave an
example of claimant working on a car and was unable to hold
a clutch with his hand. He also gave an example of claimant
not being able to hold sheet rock in the spring of 1992 when
they were remodeling a house. He also gave other examples.
Mr. Schultz was asked by claimant's attorney his
opinion as to claimant's loss of use and he indicated that
claimant lost 50 or 60 percent use of his arms. Claimant's
attorney then asked "and in his shoulders?" and Mr. Schultz
answered yes, in the shoulders also.
On cross-examination, when Mr. Schultz was asked when
the claimant's forearm hurt after he had arm wrestled, he
could not say when or whether it was before or after
claimant's motorcycle accident. He did not know the time
sequence at all. He also did not know whether claimant's
problems are primarily in the shoulders or the arms.
Wayne Tietz, owner of defendant employer since 1980,
testified that the jobs at his company such as claimant had
are entry level jobs and are very physical and physically
demanding. They are not long term but are stepping stones
because they are physically demanding. He indicated that
claimant's job ended on a conversation claimant had with
him, Harry Fraker and a Mr. Speck. The conversation was
based on problems developing with the various doctors
concerning the various recommendations. He said the doctors
indicated that claimant should avoid any repetitive job and
recommended that claimant find another job. He emphasized
that claimant was not fired and that there was a
misunderstanding but did indicate claimant quit on his own
but not willingly. Mr. Tietz indicated that he okayed
claimant to go to certain doctors and he had asked claimant
and understood that claimant was getting relief and never
heard him complain that his condition was worsening. He
said claimant's complaints were primarily in his hands,
fingers, wrists and lower back but never complained of
shoulder, neck or back area problems. Mr. Tietz said that
up to the time claimant left in November 1990, he was able
to do the work at defendant employer but he could not relate
the pain level that claimant may have been going through.
Again, he said claimant was able to do the work up to the
time he left.
Joint exhibit 1 reflects the fact that claimant had
pain on his left wrist and right side and complained of
tingling and numbness in both hands. Said record also
indicates that claimant's condition is considered and
referred to as an overuse syndrome, tenosynovitis,
tendonitis and carpal tunnel syndrome and that the nature of
claimant's work results in a lot of repetitive motion as
well as lifting. The records also indicate that on occasion
the pain would radiate into to claimant's upper extremities
or into the elbow and shoulder on the right side. Page 19
Page 6
of joint exhibit 1 indicates claimant was released to return
to work beginning July 11, 1990, said release certificate
having been issued June 12, 1990, by Dilip K. Parikh, M.D.
On June 27, he modified that release and indicated claimant
could return to work on July 2, 1990, but he was not to use
the staple gun (Joint Exhibit 1, page 22).
Dr. Parikh also indicated that claimant's ganglion cyst
was related to his work. It apparently had developed during
his work (Jt. Ex. 1, p. 23).
Page 25 of joint exhibit 1 reflects the area the
parties are disputing concerning the extent of claimant's
first alleged healing period when claimant was released by
Dr. Parikh to go back to work July 2. Defendants' testimony
indicates defendants wanted him to see Dr. Mueller, another
chiropractor, to have him check the claimant. This
apparently delayed things through the 5th. The undersigned
believes that the testimony and other credible evidence
would indicate this first healing period would run from
April 21, 1990 through July 5, 1990.
One of the disputes or issues in this case is whether
claimant incurred another healing period beginning November
6, 1990 through March 28, 1991. Joint exhibit 1, page 31,
indicates that claimant saw David A. Carlyle, M.D., on
November 6, 1990, and the doctor indicated in his report
that the patient cannot work while taking Voltarin. He will
take him off of work for the time being. It would appear
from the notes that claimant was off until the end of March
1991. Claimant contends through March 28, 1991.
Page 44 of joint exhibit 1 is an initial evaluation
summary which indicates therein that claimant did not show
up or called to cancel his appointment. There are occasions
of claimant not showing throughout the joint exhibit 1.
That report shows claimant has been off since early November
1990. On pages 49 and 50 of joint exhibit 1, in reference
to a January 4, 1991 report by the occupational medicine
department of St. Joseph's Mercy Hospital, Mason City, it
indicates that claimant's attendance has been inconsistent
and that he has demonstrated an increase in bilateral grip
strength, right hand coordination and minimal increase in
upper extremity endurance. The report further indicates
that claimant continues to have objective complaints of sore
hands and shoulders and popping serbation in the wrists.
The claimant was strongly encouraged to improve his
attendance.
A January 14, 1991 report from Mercy Hospital indicates
a work site visit was done and that the claimant's employer
reported that the patient would have to be able to return to
his previous job which requires highly repetitive and
forceful hand work done in a cold environment. It also
indicates claimant's attendance has not been consistent
enough to warrant a continuation in a work hardening
program. A January 16, 1991 note by Dr. Crane indicates
that claimant's hands are swollen and painful whenever he
does repetitious work. The undersigned is confused by this
notation in that it would appear, and the claimant contends,
Page 7
he was off work during this time for at least over two
months and why claimant's hands would be swollen as he has
been doing no work or repetitious work is unknown.
Possibly, claimant is doing some other type of work whether
it be at home or somewhere else unknown to the doctor.
Since Dr. Crane's December 1990 notes (Jt. Ex. 1, p. 42)
reflect upon examination that "Although he states that he
does nothing, his calluses are fairly thick and he had a
fair amount of dirt and other debris in the finger creases."
Joint exhibit 1, page 61, reflects that claimant had a
normal EMG study on March 12, 1991.
On March 28, 1991, Dr. Crane gave claimant an
impairment rating of 5 percent of the right upper extremity
and 3 percent of the left upper extremity and indicated that
he could find no underlying illness to explain all of
claimant's problems except basically fibrositis/tendonitis.
The doctor indicated that the claimant simply had a chronic
problem and he did not think any chronic restrictions are in
the best interest except that claimant needs to understand
that repetitious factory work will most likely give him
problems (Jt. Ex. 1, p. 62).
It is this permanent impairment determination that
enters into the dispute concerning a second healing period.
Claimant contends that it began on November 6, 1990 through
March 20, 1991. The undersigned believes that claimant did
incur an additional healing period between those dates and
is therefore entitled to a second healing period. It
appears to the undersigned that during that period of time
claimant was off work and was going to various types of
conservative treatment and tests and that it was the result
of those that led the doctor to ultimately determine
claimant's permanent disability. There is nothing in the
record in which a doctor has claimant reaching maximum
healing period prior to the March 28, 1991 date.
On May 6, 1992, as reflected by joint exhibit 1, pages
72 through 74, Dr. Mueller wrote that it was his opinion
that he could have completely remedied claimant's condition
if the claimant had adhered to a recommended schedule of
care and other modalities such as nutrition, wrist supports
and ultrasonic therapy to the affected areas. He further
indicated that the claimant had other ideas and that
claimant is suffering today because of lack of proper care
for his condition. This report, of course, got claimant's
attorney's attention and he wrote other letters to doctors
to address this point. Also, he wanted clarification as to
whether Dr. Crane included the claimant's shoulders when he
was referring to the upper extremities. Joint exhibit 1,
page 84, clearly answers that question and the doctor
emphasizes in his September 1, 1992 report that claimant in
no way has a problem that extends into the shoulder but has
an upper extremity problem dealing with claimant's area of
the wrist and forearm (Jt. Ex. 1, p. 84).
In looking at joint exhibit 1, the undersigned might
note that there are several items which are part of the
exhibit that are not necessary but just take up the
undersigned's time and exhibit storage space. They are
Page 8
completely unnecessary and do not add in any respect to the
quality of the exhibits or the decision. In part, these are
pages reflected by 85 through 102, which is notice of
service of medical reports and intent to offer. The parties
should make a better effort to screen unnecessary exhibits
or parts of exhibits from the record.
There seems to be a question during the course of
claimant's alleged injury and treatment as to whether the
ganglion cyst was caused by claimant's repetitious work
injury on April 20, 1990. Page 39 of claimant's exhibit A
is the record of defendant insurance carrier in which they
indicate a doctor advised them in a letter of June 4, 1990,
that he felt the cyst was possibly caused by trauma to the
wrist while at work. Page 18 of joint exhibit 1 is the
particular letter the insurance carrier is referring to.
That letter also has another paragraph that states "Please
reconsider this for Workmen's Compensation as in my opinion
it was related to his work." The undersigned finds that the
greater weight of evidence shows that claimant's ganglion
cyst on his left wrist was, in fact, caused by his
cumulative repetitive work injury of April 20, 1990.
Cumulative traumas are several micro traumas which would be
a trauma to the wrist. The undersigned believes that
whether it was a direct single trauma or the result of the
micro trauma is not material in that the undersigned finds
that claimant's injury of April 20, 1990 caused claimant's
cyst and also caused claimant to have his permanent
impairment of 3 percent of claimant's left upper extremity,
as indicated in Dr. Crane's March 20, 1991 report (Jt. Ex.
1, p. 62). The undersigned also finds that when the doctor
uses the word disability he means impairment.
Claimant's exhibit A contains considerable documents in
the form of letters, etc., that address the issue of the
interest and claimant's allegation that he is entitled to
86.13 penalty benefits and temporary partial disability
benefits. The undersigned finds that the greater weight of
evidence indicates that claimant would be entitled to
temporary partial disability which would be in the amount
of $317.22. This figure appears to be not disputed assuming
the undersigned would find that claimant was entitled to
temporary partial disability benefits.
The parties are disputing the rate at which benefits
should be paid if liability is found. Claimant contends
that claimant's gross earnings were $293.11 which would
amount to a rate of $180.36. Defendants contend that the
rate should be $172.94. Both rates are based on claimant
being single and having only himself as an exemption.
Claimant figured the rate based on claimant averaging the 13
weeks prior to the alleged injury at 44.75 hours per week at
a straight wage rate of $6.55 per hour. In looking at
claimant's exhibit B, it appears that the hours claimant
worked which in every instance of the 13 weeks before his
injury amounted to in excess of 40 hours per week. In fact,
they average 44.75 per week. The exhibit also shows that
claimant was paid $6.55 straight wage rate so there was no
overtime or time and a half pay. This amounted to $293.11
per week gross earnings average and this would result in
Page 9
$180.36 per week rate. On page 17 of claimant's exhibit A,
claimant's recorded statement did indicate that he was paid
$6.55 per hour and that he gets time and a half for over 40
hours. Notwithstanding this, the evidence in claimant's
exhibit B indicates overtime was not paid. Defendants
contend that on the March 12, 1990 work week, claimant
worked only 20 hours and defendants claim 45 hours. The
record reflected on page 20 of claimant's exhibit B
indicates 45 hours and that it looks like this record is
kept in the same manner as other records encompassing weekly
hours worked. The undersigned does note that the check on
page 20 reflects $106.50, wherein prior checks for similar
amounts of pay amounted to more than $231. There is nothing
else showing why that check is $106 when the record also
shows 45 hours of work. There could have been something
else deducted that resulted in the net check being lower.
The undersigned is going to rely on the time sheets and
finds that on that particular week involving March 12, 1990,
claimant had a total of 45 hours. The undersigned therefore
finds that the rate to be used for figuring weekly benefits
is $180.36.
Defendants raise the defense that claimant failed to
mitigate damages. There is evidence in the record in more
than one place in which it is apparent claimant either
missed or cancelled appointments or did not follow up or did
not put in the effort that should be expected. Claimant
contends that he had an old car that was not reliable, there
wasn't a car available, that he didn't have the money for
gasoline, etc. The undersigned finds that claimant could
have put forth more effort at times during his treatment.
There is a dispute concerning credit. The dispute is
basically the payment of interest. In other words, any
principal payment should be offset by interest that may have
accrued. If this was done as claimant contends, the
principal payments would have been less than what the weekly
rate would be under either the claimant's or defendants'
rate computation. This agency has held that section 85.30
expresses legislative intent that interest on unpaid
compensation be computed on the date each payment comes due
starting with the eleventh day after the injury. Interest
is therefore payable on such installments from that due date
and similarly with the following weekly payments. Interest
is computed according to the long-standing rule that partial
payments are applied first to accrued interest and the
remainder to reduce the permanent partial disability award.
The parties are directed to calculate interest on any weekly
benefits not paid when due based on the Iowa Code section
85.30. The authorities are cited in the conclusions of law.
The record shows that interest has not been paid on the late
payments or on payments paid at less than the rate found
herein. The undersigned therefore finds that payments
should be applied first to the accrued interest after the
date of payment and then to principal amounts due. The
undersigned has left it to the parties to calculate the
interest. If the parties are unable to do this, they shall
hire a CPA to arrive at the amount due and owing under this
decision. The cost of the CPA will be assessed equally to
the parties if further intervention is necessary by this
Page 10
agency to resolve this issue.
Defendants have not argued against the fact that
claimant had a scheduled member injury that arose out of and
in the course of his employment. The evidence shows that
claimant incurred a simultaneous bilateral cumulative injury
to his upper extremities and the upper extremities being his
wrists and forearms, as indicated by Dr. Crane. Claimant
contends that he has an occupational disease and, if not
that, then a body as a whole injury in that he has an injury
to his shoulders, also. The undersigned finds, in reference
to Dr. Crane's report in which, he being the only doctor
that opined any permanency rating, emphatically reported
that claimant's injury did not result in an injury or
permanency to the shoulders but strictly to the upper
extremities. His report also indicated that he meant upper
extremities. He indicated the arms were also affected and
not that the injury was only bilaterally to the wrists or
hands and, thereby, limiting it to those scheduled members.
This agency has held in the Noble v. Lamoni Products,
File No. 857575, (Appeal Dec. May 7, 1992), that facts such
as we have in this case do not result in an occupational
disease. It is obvious the claimant acknowledges this but
also is protecting his rights in case a judge or court along
the line would disagree with the current agency decision and
the claimant wants to reserve the competing rationale on
this issue. This issue is on its way up on appeal. The
undersigned sees no further necessity of elaborating or
giving the rationale as to the agency's position as it has
been very clearly documented. The undersigned has agreed
with this agency's rationale anyway.
The undersigned finds that the greater weight of
medical testimony indicates that claimant has incurred a 5
percent permanent impairment to his right upper extremity
and 3 percent to the left upper extremity. The undersigned
finds that claimant has a simultaneous bilateral tendonitis
fibrositis work injury as a result of a cumulative work
injury on April 20, 1990. The undersigned finds that
claimant does not have a body as a whole injury. The
undersigned finds that claimant's permanency is based on
Iowa Code section 85.34(2)(s), in which case the combination
charts based on 500 weeks shall be used. As found earlier,
the undersigned finds that the doctor's ratings involved the
upper extremity. The 5 percent and 3 percent of the upper
extremity converts to 3 percent and 2 percent of the whole
person. Under table 2 and using the combined values chart,
claimant would have a 5 percent body as a whole impairment
which would amount to 25 weeks of permanent partial
disability benefits which the undersigned so finds claimant
has incurred as a result of his April 20, 1990 simultaneous
bilateral upper extremity cumulative injury.
The undersigned has found claimant incurred two healing
periods and also had a period of temporary partial
disability. It would appear from the facts that the
permanent disability benefits would begin on August 2, 1990
through November 5, 1990, and then resume again on March 29,
Page 11
1991, which is the date after the end of the last healing
period and the day after which Dr. Crane opined claimant's
permanent impairments (Jt. Ex. 1, p. 62).
The final issue is whether claimant is entitled to
86.13 penalty benefits. The record has considerable
correspondence from claimant's attorney forming or
attempting to form a foundation for this issue. Claimant's
attorney had filed two petitions in this case and they have
both been placed under this one file number, one petition
being an occupational disease and the other one claiming
body as a whole injury to claimant's shoulders and upper
extremities. Claimant obviously was pressing both issues or
desired both be pressed. It is obvious defendants relied on
agency precedence as far as not paying anything on the
occupational disease theory. The water has been muddied by
certain facts, one of which is that claimant had a ganglion
cyst which seemed reasonable that there might be a question
as to whether it was caused by a cumulative work injury, and
claimant's record is not good as to following instructions
and proceeding with the work hardening program, etc.
The undersigned finds that claimant has failed in his
burden to prove that there was a delay in the commencement
of payments of benefits without reasonable or probable cause
or excuse. The undersigned finds that claimant is not
entitled to any 86.13 benefits.
CONCLUSIONS OF LAW
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on April 20,
1990, 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 claimant has the burden of proving by a
preponderance of the evidence that the injury of April 20,
1990, is causally related to the disability on which he now
bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18
N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
Page 12
133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154
N.W.2d 128.
If a claimant contends he has industrial disability he
has the burden of proving his 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).
Iowa Code section 85.34(1) provides that if an employee
has suffered a personal injury causing permanent partial
disability, the employer shall pay compensation for a
healing period from the day of the injury until (1) the
employee returns to work; or (2) it is medically indicated
that significant improvement from the injury is not
anticipated; or (3) until the employee is medically capable
of returning to substantially similar employment.
Iowa Code section 85.34(2) provides that compensation
for permanent partial disability shall begin at the
termination of the healing period. Iowa Code section
85.34(2)(u) provides that compensation for a nonscheduled or
body as a whole injury shall be paid in relation to 500
weeks and the disability bears to the body as a whole.
Iowa Code section 85.34(2)(s) provides, in part: "The
loss of both arms, or both hands, or both feet, or both
legs, or both eyes, or any two thereof, caused by a single
accident, shall equal five hundred weeks and shall be
compensated as such."
Workers' compensation benefits for permanent partial
disability of two members caused by a single accident is a
scheduled benefit under Iowa Code section 85.34(2)(s) and
that the degree of impairment caused by a partial loss must
be computed on the basis of functional, rather than
industrial disability. Simbro v. DeLong's Sportswear, 332
N.W.2d 886 (1983).
In Farmer's Elevator Co., Kingsley v. Manning, 286
N.W.2d 174 (Iowa 1979), at 180, the Iowa Supreme Court said:
Section 85.30 expresses legislative intent that
interest on unpaid compensation be computed from
the date each payment comes due, starting with the
eleventh day after the injury....Interest is
therefore payable on such installments from that
due date, and similarly with the following weekly
payments.
Interest is computed according to the long-standing
rule that partial payments are applied first to accrued
interest and the remainder to reduce the permanent partial
disability award. McNeal v. Iowa Department of
Transportation, Order Nunc Pro Tunc, May 31, 1990. Also see
Clausen v. Carmar Farms, Ltd., Volume 1, No. 3 State of
Iowa Industrial Commissioner Decisions 540 (1985).
It is further concluded that:
Claimant incurred a cumulative, simultaenous bilateral
Page 13
upper extremity scheduled member injury on April 20, 1990,
which caused claimant to incur a healing period beginning
April 21, 1990 through July 5, 1990, and another healing
period beginning November 6, 1990 through March 28, 1991.
Claimant also incurred a temporary partial disability period
beginning July 5, 1990 through August 1, 1990. The
temporary partial disability benefit entitlement would be in
the amount of $317.22. Claimant's total healing period
would amount to 10.857 and 20.429 weeks, respectively,
totaling 31.286 weeks payable at the rate of $180.36.
Claimant's rate of weekly benefits would be paid at the
rate of $180.36 based on claimant averaging 44.75 hours per
week for 13 weeks prior to his injury. Said hours did not
encompass overtime pay and the 44.75 hours were paid at a
straight rate time of $6.55 per hour.
Claimant's work injury caused claimant to incur a 5
percent permanent impairment to his right upper extremity
and a 3 percent permanent impairment to his left upper
extremity. Said impairments were bilaterally and
simultaneously caused by an April 20, 1990 cumulative injury
and said impairments resulted in claimant incurring a 5
percent impairment to his body as a whole under the
combination charts of the AMA Guides to the Evaluation of
Permanent Impairment, third edition. As a result, claimant
is entitled to 25 weeks of permanent partial disability
benefits payable at the rate of $180.36. Payments shall
begin August 2, 1990 and temporarily cease on November 5,
1990, and begin again for the balance of the payments on
March 29, 1991.
Claimant is entitled to interest as provided by Iowa
Code section 85.30 and in accordance with the Farmer's
Elevator Co., Kingsley v. Manning case. If the parties
cannot agree on the amount, they shall hire a CPA at the
parties' equal expense.
Claimant did not follow medical instructions in
following work hardening procedures, in keeping appointments
as he should, and did not to the full extent possible
mitigate damages.
Claimant did not incur an occupational disease which
arose out of and in the course of his employment on April
20, 1990.
Claimant is not entitled to 86.13 penalty benefits.
The credit defendants are entitled to is to be adjusted
by the ruling concerning the interest in that interest is to
be paid first and then the principal, as provided by Iowa
Code section 86.30 and in reference to the Farmer's Elevator
Co., Kingsley v. Manning case previously referred to.
ORDER
THEREFORE, it is ordered:
That defendants shall pay unto claimant healing period
Page 14
benefits at the rate of one hundred eighty and 36/100
dollars ($180.36) for the periods beginning April 20, 1990
through July 5, 1990, involving ten point eight five seven
(10.857) weeks and for the period beginning November 6, 1990
through March 28, 1991, involving twenty point four two nine
(20.429) weeks, totaling thirty-one point two eight six
(31.286) weeks.
That defendants shall pay claimant temporary partial
disability benefits for the period beginning July 6, 1990
through August 1, 1990, amounting to a total of three
hundred seventeen and 22/100 dollars ($317.22).
That defendants shall pay unto claimant twenty-five
(25) weeks of permanent partial disability benefits at the
rate of one hundred eighty and 36/100 dollars ($180.36),
commencing August 2, 1990, and temporarily ending November
5, 1990, and beginning again on March 29, 1991 until paid.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30 and as
provided in the Farmer's Elevator Co., Kingsley v. Manning
case.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of November, 1992.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Mark S Soldat
Attorney at Law
714 E State St
Algona IA 50511
Mr Eldon J Winkel
Attorney at Law
111 N Hall St
P O Box 266
Algona IA 50511
1100; 1108; 1803
1808; 2209; 3002
1802; 5-1801.1; 3800
4000; 1803.1; 2203
Filed November 25, 1992
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
CHAD E. PRESTHUS, :
:
Claimant, :
:
vs. :
: File No. 952215
BARCO INC. a/k/a BARCO, :
MANUFACTURING, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
HERITAGE INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1100; 1108; 1803; 2209; 1808; 3002
Found claimant incurred a work-related simultaneous bilateral,
upper extremity, cumulative injury on April 20, 1990, which
caused claimant to incur 25 weeks of permanent partial disability
benefits under 85.34(2)(s) at a rate found to be $180.36.
1802; 5-1801.1; 3800
Claimant awarded two healing periods.
Claimant awarded $317.22 of permanent partial disability
benefits.
Claimant awarded interest. Parties disputed when and what was
due.
4000
Claimant was not awarded 86.13 penalty benefits.
1803.1
Found claimant did not incur an industrial disability . He did
not injure his shoulders and did not incur a body as a whole
injury.
2203
Found claimant did not incur an occupational disease and cited
agency precedence in this area.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
ROBERT ALAN WEST,
Claimant,
vs.
File No. 952365
PURINA MILLS, INC.,
A P P E A L
Employer,
D E C I S I O N
and
CIGNA PROPERTY & CASUALTY CO.,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the deputy
and all exhibits admitted into the record, has been reviewed de novo on
appeal.
ISSUES
Defendants state the following issues on appeal:
1. The deputy commissioner erred in finding that there was a causal
connection between Claimant's alleged June 21, 1990 injury and any
permanent impairment; therefore Claimant is not entitled to any award
of industrial disability.
2. Alternatively, the deputy commissioner erred in finding that
Claimant suffered an 80% industrial disability.
3. The deputy commissioner erred in finding that Respondents did not
have an interest in the personal injury settlement received by Claimant
arising out of the June 21, 1990 motor vehicle accident that gives rise
to this claim.
4. The deputy commissioner erred in excluding the testimony of John
Winblade, Claimant's co-worker, concerning Claimant's intention to
cease employment and go on disability prior to the June 21, 1990
accident.
Claimant has failed to state any additional issues on cross-appeal.
FINDINGS OF FACT
The findings of fact contained in the proposed agency decision filed
April 7, 1994 are adopted as set forth below. Segments designated by
asterisks (*****) indicate portions of the language from the proposed
agency decision that have been intentionally deleted and do not form a
part of this final agency decision.
*****
Claimant worked for Purina for 12 years prior to the injury. At the
time of injury, he alternated as a truck driver and as a micro
operator. The micro operator job not only involved using a computer to
mix feed additives but physical work such as lifting bags weighing as
much as 50-100 pounds on occasion. His work as a driver involved dock
work in which he loaded and unloaded trucks which required heavy
lifting and pushing. Claimant was terminated from his job by Purina
when he physically could not return to duty after the work injury
herein.
On or about June 21, 1990, claimant injured his low back while driving
a Purina truck. Another truck side swiped the vehicle driven by
claimant and forced claimant onto an eight inch concrete median
jostling claimant and a fellow Purina worker about the cab. Following
the incident, claimant finished his truck route but later began to
experience chronic low back pain. He was initially treated
conservatively by Donald Berg, M.D., an orthopedic surgeon, with a
medical leave from work, medication, back supports and physical
therapy. However, when claimant failed to improve, his care was
assumed by Hugh MacMenamin, M.D., another orthopedic surgeon. His
treatment also remained conservative until he was released from care on
December 10, 1990. At that time, Dr. MacMenamin opined that claimant
had reached maximum healing and had suffered permanent impairment from
the injury. Dr. MacMenamin imposed work restrictions against heavy
lifting, bending and twisting. With these restrictions, claimant was
terminated by Purina as they had no job available for him. Based on
the views of the treating orthopedic surgeon, Dr. MacMenamin, it is
found that claimant reached maximum healing on December 10, 1990.
Claimant had prior existing health problems before the injury including
a degenerative back condition. This was aggravated by claimant's
obesity. Claimant also had a prior work restriction against lifting
over 25 pounds due to a incisional hernia. However, claimant testified
that he was able to fully perform his work at Purina, including the
heavy work, prior to the work injury herein. Company records indicate
that claimant was a good worker at Purina prior to the injury.
Therefore, it is found that although claimant may have a prior slight
physical impairment due to a variety of health problems, claimant had
little or no disability prior to the work injury and no loss of earning
capacity due to those health conditions. Claimant was considered
"strong as an ox" prior to the work injury herein.
Based upon the greater weight of evidence, the work injury of June 21,
1990 is found to be a cause of a significant permanent impairment to
the body as a whole. Almost all physicians in this case opine that at
least a significant portion of claimant's impairment is due to the
truck accident injury. Only one physician questioned the causal
connection of claimant's condition to the injury. The exact percentage
is less important in an industrial disability case. More importantly,
due to the work injury, claimant now has formal restrictions placed
upon him against heavy lifting, bending and twisting. It was due to
these work restrictions imposed after the June 21, 1990 injury that
claimant was terminated by Purnia. He has not worked since.
Due to the work injury herein and physical restrictions imposed as a
result of that injury, claimant is unable to return to his former work
or most other work for which he is best suited given his age, education
and work experience. Claimant is unable to sit for more than a few
minutes without pain. He can no longer twist or bend in a work
setting. He experiences chronic pain which requires regular rest and
changing positions. Claimant's only work experience has been in truck
driving and heavy manual labor occupations which require him to perform
physical tasks that he can no longer perform. Claimant is a high
school graduate but has great difficulty reading. His testimony that
he bluffed his way through school and driving tests is believed and
uncontroverted. Claimant has only worked in jobs that require physical
labor beyond his work restrictions. Claimant is 41 years of age. He
should be in the most productive, high income years of his life. His
loss of earning capacity is greater than would be experienced for
younger or older individuals. Due to his lack of reading skills, he
has very limited potential for vocational rehabilitation. Vocational
counselor, Jack Reynolds, reports that at most claimant could only hope
to obtain sedentary jobs such as cashier, assembly or attendant
positions at $5 per hour and would only be lucky to find full time
employment. Claimant was earning over $500 per week at Purnia.
Also, from a functional capacities test, a physical therapist has
concluded that claimant is able to perform more than he feels he is
capable of. Claimant is not intentionally holding back, but his
chronic pain syndrome has affected his perception of his abilities
which can be extended by aggressive physical therapy. However, this
has not happened yet and claimant still remains severely disabled.
From examination of all of the factors of industrial disability, it is
found that the work injury of June 21, 1990 was a cause of a 80 percent
loss of earning capacity.
Claimant failed to show that voluntarily paying no more than nine
percent of disability benefits was unreasonable conduct on the part of
defendants. Given claimant's past medical problems and the views of
David Boarini, M.D., that possibly none of claimant's current problems
are work related, renders defendants' actions fairly debatable.
It is found that claimant received a recovery from a third party in the
amount of $200,000 in an action pursued by claimant arising from the
facts and circumstances of the work injury herein.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency decision filed
April 7, 1994 are adopted as set forth below. Segments designated by
asterisks (*****) indicate portions of the language from the proposed
agency decision that have been intentionally deleted and do not form a
part of this final agency decision. Segments designated by brackets ([
]) indicate language that is in addition to the language of the
proposed agency decision.
Claimant must next establish by a preponderance of the evidence the
extent of weekly benefits for permanent disability to which claimant is
entitled. As the claimant has shown that the work injury was a cause a
permanent physical impairment or limitation upon activity involving the
body as a whole, the degree of permanent disability must be measured
pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled
member disabilities, the degree of disability under this provision is
not measured solely by the extent of a functional impairment or loss of
use of a body member. A disability to the body as a whole or an
"industrial disability" is a loss of earning capacity resulting from
the work injury. Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258
N.W. 899 (1935). A physical impairment or restriction on work activity
may or may not result in such a loss of earning capacity. Examination
of several factors determines the extent to which a work injury and a
resulting medical condition caused an industrial disability. These
factors include the employee's medical condition prior to the injury,
immediately after the injury and presently; the situs of the injury,
its severity and the length of healing period; the work experience of
the employee prior to the injury, after the injury and potential for
rehabilitation; the employee's qualifications intellectually,
emotionally and physically; earnings prior and subsequent to the
injury; age; education; motivation; functional impairment as a result
of the injury; and inability because of the injury to engage in
employment for which the employee is fitted. Loss of earnings caused
by a job transfer for reasons related to the injury is also relevant.
See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28,
1985).
Refusal of employer to return claimant to work is evidence of a serious
disability. See Larson Law of Workmen's Compensation, 57.61, pp.
10-164.90-95.
In the case sub judice, it was found that claimant suffered an 80
percent loss of his earning capacity as a result of the work injury.
Such a finding entitles claimant to 400 weeks of permanent partial
disability benefits as a matter of law under Iowa Code section
85.34(2)(u) which is 80 percent of 500 weeks, the maximum allowable
number of weeks for an injury to the body as a whole in that
subsection.
Claimant's entitlement to permanent partial disability also entitles
him to weekly benefits for healing period under Iowa Code section 85.34
from the date of injury until claimant returns to work; until claimant
is medically capable of returning to substantially similar work to the
work he was performing at the time of injury; or, until it is indicated
that significant improvement from the injury is not anticipated,
whichever occurs first. It was found that claimant reached maximum
healing on December 10, 1990. Healing period benefits will be awarded
accordingly.
Claimant seeks additional weekly benefits under Iowa Code section
86.13, unnumbered last paragraph. That provision states that if a
delay in commencement or termination of benefits occurs without
reasonable or probable cause or excuse, the industrial commissioner
shall award extra weekly benefits in an amount not to exceed 50 percent
of the amount of benefits that were unreasonably delayed or denied.
Defendants may deny or delay the payment of benefits only when the
claim is fairly debatable. Seydel v. U of I Physical Plant, Appeal
Decision, November 1, 1989. When the claim is "fairly debatable," the
insurer is entitled to debate it, whether the debate concerns a matter
of fact or law." As it was found that a lack of causal connection of
the work injury to any permanent impairment was fairly debatable,
claimant is not entitled to penalty benefits.
*****
[Defendants offered the testimony of John Winblade. This testimony was
properly restricted by the deputy. Interrogatories from claimant
clearly asked for the names of any persons that would testify about the
injury and the substance of their statements. Defendants did list
Winblade as a witness, but failed to state that part of his testimony
would include a statement allegedly made by claimant to Winblade about
claimant's desire to go onto disability, made prior to the date of
injury. Defendants' overly technical reading of the interrogatory
resulted in a failure to appraise claimant of this evidence and prepare
to meet it. One of the purposes of discovery is to avoid trial by
ambush. Defendants will not be allowed to conceal this evidence and
then introduce it into the record by surprise.
Defendants seek a lien and credit for indemnification under Iowa Code
85.22(1). Recent case law, including Thomas v. Hansen, 524 N.W.2d 145
(Iowa 1994) and Christensen v. Pocket Lounge, Inc., 519 N.W.2d 401
(Iowa 1994) establish defendants' entitlement to a credit or lien.]
WHEREFORE, the decision of the deputy is affirmed and modified.
ORDER
THEREFORE, it is ordered:
That defendants shall pay to claimant four hundred (400) weeks of
permanent partial disability benefits at a rate of three hundred
twenty-eight and 90/l00 dollars ($328.90) per week from December 11,
1990.
That defendants shall pay to claimant healing period benefits from June
21, 1990 through December 10, 1990, at the rate of three hundred
twenty-eight and 90/l00 dollars ($328.90) per week.
That defendants shall pay accrued weekly benefits in a lump sum and
shall receive credit against this award for all benefits previously
paid.
That defendants shall receive credit for previous payments of benefits
under a non-occupational group insurance plan, if applicable and
appropriate under Iowa Code section 85.38(2), less any tax deductions
from those payments.
That defendants shall receive a credit against this award not to exceed
two hundred thousand dollars ($200,000), less allowable attorney fees
and costs, for payments of workers' compensation benefits made to
claimant herein prior to claimant's receipt of the third party
recovery. Defendants shall also receive a credit or a lien against
this third party recovery for any compensation payments made thereafter
or into the future in satisfaction of this award pursuant to Iowa Code
section 85.22(1).
That defendants shall pay interest on weekly benefits awarded herein as
set forth in Iowa Code section 85.30.
That claimant and defendants shall share equally the costs of the
appeal including transcription of the hearing. Defendants shall pay
all other costs.
That defendants shall file activity reports on the payment of this
award as requested by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of January, 1995.
_______________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Stephen D. Lombardi
Attorney at Law
10101 University Ave., Ste 202
Des Moines, Iowa 50325
Mr. John M. Bickel
Attorney at Law
P O Box 2107
Cedar Rapids, Iowa 52406
5-1803; 3700
Filed January 31, 1995
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
ROBERT ALAN WEST,
Claimant,
vs.
File No. 952365
PURINA MILLS, INC.,
A P P E A L
Employer,
D E C I S I O N
and
CIGNA PROPERTY & CASUALTY CO.,
Insurance Carrier,
Defendants.
_________________________________________________________________
5-1803
Nonprecedential, extent of disability case.
3700
Failure to identify in interrogatories statement by witness who
offered damaging testimony on claimant's credibility resulted
in exclusion of said testimony.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
KATHY WEST,
Claimant,
vs.
File No. 894094
O'BRYAN BROTHERS, INC.,
A P P E A L
Employer,
D E C I S I O N
and
AMERICAN MANUFACTURERS
MUTUAL INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal.
ISSUES
Those portions of the proposed agency decision pertaining to
issues not raised on appeal are adopted as a part of this
appeal decision. The issues raised on appeal are:
I. Whether the claimant's disability is causally
connected to her work activities at O'Bryan
Brothers, Inc.
II. Whether there was substantial evidence
presented at the hearing in this matter
to support a forty percent industrial
disability award.
III. Whether substantial record evidence was
presented at hearing to support an award of
86.13 penalty benefits.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed January 15, 1991 are adopted as set forth
below. Segments designated by asterisks (*****) indicate
portions of the language from the proposed agency decision
that have been intentionally deleted and do not form a part
of this final agency decision.
*****
Claimant began working for O'Bryan Brothers, a manufacturer
of wearing apparel, in 1984 as a sewing machine operator.
Later on, claimant became an "order filler." This job
involved the carrying of various items of apparel and
Page 2
placing them on a central overhead rail. These items of
apparel were than rolled down the rail to be shipped to the
buyer. The job involved a considerable amount of walking
between the storage areas and the centralized rail. There
was also a considerable amount of reaching above shoulder
level. Although the individual items weighed only a few
pounds, employees would commonly carry large bundles of
garments at one time. According to claimant and fellow
employees, order fillers would usually work very fast and
hard as the job was paid on an incentive basis. Management
at O'Bryan Brothers and fellow employees agree that claimant
was one of these hard workers. Fellow employees agreed that
the job was physically demanding causing routine body aches
at the end of every working day. Claimant earned
approximately $18,000 a year in this job prior to her
injury.
On or about May 19, 1988, claimant suffered an injury which
arose out of and in the course of her employment at O'Bryan
Brothers. May 19, 1988, is the time when claimant was
forced by back and leg pain to leave her employment to seek
medical treatment. The back and leg pain was the result of
repetitive stresses and traumas occurring as a result of her
work as an order filler in the months prior to May 19, 1988.
Claimant has not returned to employment in any capacity
since May 19, 1988. Claimant was treated by Thomas
Carlstrom, M.D., a neurosurgeon, between May 19, 1988 and
October 5, 1988. Dr. Carlstrom diagnosed a herniated disc
in the claimant's lower spine and treated this condition
with an absence from work activity, medication and
corrective surgery.
As a result of the work injury of May 19, 1988, claimant has
a 5-7 percent permanent partial impairment to the body as a
whole. Also, claimant is permanently restricted from
lifting over 30-35 pounds at any time, lifting over 20-25
pounds repetitively and no sitting or standing over one hour
in one position. After her release from Dr. Carlstrom's
care and the imposition of the above work restrictions by
Dr. Carlstrom, claimant called O'Bryan Brothers and, due to
the restrictions, she did not think it was possible for her
to return to the job of order filler or sewing machine
operator. O'Bryan Brothers' representative, Verda Morris,
agreed with claimant on this aspect. Morris testified at
hearing that she might be able to find or create a job to
fit within claimant's work restrictions. However, no job
had been offered to claimant since O'Bryan Brothers has
learned of claimant's work restrictions. After claimant
discovered that she would not be able to return to work, she
started attending a local community college and obtained an
associate of arts degree. At the present time she is
enrolled as a full-time student seeking a four year
baccalaureate degree in social work. This educational
effort has been solely at her own expense.
The findings of a work injury herein and that this injury
caused permanent partial impairment are based upon the views
Page 3
of the treating physician, Dr. Carlstrom, and the views of a
treating chiropractor, Charles Manuel, D.C., who treated
claimant in October 1987, November 1987 and February 1988.
Both of these doctors agree that although claimant may have
had prior back surgery in 1984 and some back problems in
October and November of 1987, the herniated disc found by
Dr. Carlstrom could not have occurred prior to February
1988. They also stated that from their observations,
claimant only had repetitive stress on her back in her work
at O'Bryan Brothers. Dr. Carlstrom had previously operated
on claimant in 1984. He stated that claimant had a long
history of back problems and was predisposed to easy
herniations of the spinal disc. The 1984 surgery involved
the repair of three herniated discs of claimant's spine when
she was only 24 years old. Dr. Carlstrom felt that the
herniation he found in May 1988 was a new herniation and
unrelated to the 1984 problems. Defendants point to a prior
injury in which claimant allegedly fell from a pickup in
October 1987. However, both Dr. Carlstrom and Dr. Manuel
who actually treated claimant after this supposed injury,
felt that the injury would not be a contributing factor to
the May 1988 herniation.
The only medical evidence offered by defendants to support
their denial of the claim was a report from a one time
evaluator retained after this case was set for hearing.
Scott Kelly, M.D., an orthopedic surgeon, reported that he
examined claimant on May 17, 1990, two years after the
alleged injury, and stated that: "It was difficult to
attribute her back pain specifically to work or outside
activity because she does not know what brought on the leg
pain." Dr. Kelly places a great deal of emphasis in his
report on the injury of October 1987 involving the pickup.
It is not clear from his report whether he reviewed the
depositions of Dr. Manuel or actually talked to Dr. Manuel.
In that deposition, Dr. Manuel stated that claimant's
symptoms after the fall of October 1987 were different from
the problems he later found in November and February of 1987
which he attributes to an underlying back problem. It is
also not clear whether Dr. Kelly was familiar with
claimant's job at O'Bryan Brothers. Both Dr. Carlstrom and
Dr. Manuel have stated that they were fully aware of
claimant's job duties.
In their denial of the claim, defendants also relied upon
insurance forms completed by claimant which initially stated
that after she first sought treatment in 1988 that the
problems were not related to her work. Claimant did not
deny that she completed the forms in that manner. However,
she stated that she did not know what was causing her pain
at the time. She only suspected that her work was the
problem. It was Dr. Carlstrom who, after an investigation
of claimant's history, told claimant that her problems were
worked related and that these claims should be treated as
workers' compensation.
As a result of the work injury of May 19, 1988, claimant has
Page 4
suffered a 40 percent loss of earning capacity. Although
she had prior back problems and back surgery, claimant had
no functional impairments or ascertainable disabilities and
was fully able to perform her work which involved repetitive
lifting and prolonged walking and standing. As a result of
her work injury, claimant's physical condition prevents her
from returning to her former work at O'Bryan Brothers or any
other work which requires claimant to violate her work
restrictions. Claimant is 30 years of age and relatively
young. Claimant has a high school education and is
attempting vocational rehabilitation education. Claimant's
past employment primarily consists of work in nursing homes
which she can no longer perform due to her lifting
restrictions. Claimant has suffered a significant loss of
actual earnings when she lost her $10 per hour job at
O'Bryan Brothers. Due to her attempts at vocational
rehabilitation through education, claimant is understandably
not available at the present time for full-time work.
However, she has applied for part-time work but with little
success to date. Defendants have not assisted claimant in
any manner with her attempts at vocational rehabilitation.
Defendants contend that their attempts at vocational
rehabilitation has been frustrated by claimant's lack of
cooperation with the retained vocational rehabilitation
consultant, Connie Janssen. However, Connie Janssen's
testimony at hearing indicated that she was hired primarily
for the purpose of testifying as an expert at the hearing
for the defense rather than vocational rehabilitation. She
was not retained until after the case was scheduled for
hearing. Also, Janssen testified that her attempts to
secure permission from claimant for an "initial evaluation"
ended when it became apparent that her evaluation could not
be completed "prior to hearing."
Defendants have denied the workers' compensation claims of
Kathy West with reference to the work injury found herein
since the claim was made in August 1988. In an answer to
interrogatories proposed by claimant, defendants stated that
their denial of the claim is based upon the following:
claimant's congenital problems; the October 1987 injury;
claimant's oral statements to co-workers that her problems
were hereditary; claimant's statements on insurance claim
forms filed in 1988 that the condition was not work related;
and, the views of John Kelly, M.D. It is found that
defendants' denial of the claim is unreasonable. No
evidence was offered from co-workers to support the response
to interrogatories. Dr. Carlstrom first indicated to
defendants on October 5, 1988, that claimant's injury was
the result of a cumulative trauma from her work at
O'Bryan's. In March 1989, a medical consultant retained by
defendants verified to the defendant insurance carrier that
Dr. Carlstrom felt claimant's back problems in May 1988 were
work related after viewing a video tape of the job.
Not until May 1990, only after this matter was set for
hearing, did defendants obtain a supportive medical opinion.
Page 5
First, the securing of this opinion does not justify a
previous denial of the claim which was not based upon any
medical opinion. A claims practice which denies a claim
without investigation and without a concurrent medical
opinion is unreasonable. Secondly, Dr. Kelly's only opinion
was that the determination would be "difficult." In his
deposition, Dr. Carlstrom also stated that he too had some
difficulty identifying the cause of claimant's problems. It
was only after Dr. Carlstrom investigated claimant's history
more thoroughly that he arrived at the conclusion that
claimant's problems were solely the result of her work at
O'Bryan Brothers. There was no evidence that defendants
asked Dr. Kelly to pursue the matter fully. Had he done so,
he may have very well have arrived at the same conclusion as
Dr. Carlstrom. Also, to base a denial upon the fact that
claimant herself was unsure of the cause of her problems and
filled out insurance forms accordingly is again very
unreasonable. Physicians in this case agree that
identification of the cause was difficult even for trained
medical experts. Finally, basing a denial upon the alleged
fall in October 1987, indicates that defendants failed to
discuss the matter with the treating chiropractor who
rejects any causal connection of claimant's problems at that
time with the May 1988 injury.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed January 15, 1991 are adopted as set forth
below. Segments designated by asterisks (*****) indicate
portions of the language from the proposed agency decision
that have been intentionally deleted and do not form a part
of this final agency decision.
I. Claimant has the burden of proving by a preponderance
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.
It is not necessary that claimant prove her disability
results from a sudden unexpected traumatic event. It is
sufficient to show that the disability developed gradually
or progressively from work activity over a period of time.
McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa
1985). The McKeever court also held that the date of injury
in gradual injury cases is the time when pain prevents the
employee from continuing to work. In McKeever, the injury
date coincides with the time claimant was compelled by her
Page 6
pain to give up her job. This date was then utilized in
determining rate and the timeliness of the claim.
In the case sub judice, the lay and medical evidence was
more than sufficient to support claimant's claim that she
suffered a cumulative or gradual work injury at the time she
was compelled by her pain to leave work.
II. Claimant must establish by a preponderance of the
evidence the extent of weekly benefits for permanent
disability to which claimant is entitled. As the claimant
has shown that the work injury was a cause of a permanent
physical impairment or limitation upon activity involving
the body as a whole, the degree of permanent disability must
be measured pursuant to Iowa Code section 85.34(2)(u).
However, unlike scheduled member disabilities, the degree of
disability under this provision is not measured solely by
the extent of a functional impairment or loss of use of a
body member. A disability to the body as a whole or an
"industrial disability" is a loss of earning capacity
resulting from the work injury. Diederich v. Tri-City
Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A
physical impairment or restriction on work activity may or
may not result in such a loss of earning capacity. The
extent to which a work injury and a resulting medical
condition has resulted in an industrial disability is
determined from examination of several factors. These
factors include the employee's medical condition prior to
the injury, immediately after the injury and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. Olson v. Goodyear Service
Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).
See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision,
February 28, l985).
In the case sub judice, it was found that claimant has
suffered a 40 percent loss of her earning capacity as a
result of the work injury. Based upon such a finding,
claimant is entitled as a matter of law to 200 weeks of
permanent partial disability benefits under Iowa Code
section 85.34(2)(u) which is 40 percent of 500 weeks, the
maximum allowable for an injury to the body as a whole in
that subsection.
The parties stipulated as to the extent of healing period
benefits to which claimant is entitled should a work injury
be found. Claimant will be awarded such benefits according
to this stipulation.
III. Pursuant to Iowa Code section 85.27, claimant is
entitled to payment of reasonable medical expenses incurred
Page 7
for treatment of a work injury. In the case at bar, the
parties stipulated that the requested medical expenses were
causally connected to the back condition upon which was the
subject of this litigation. The only dispute was the causal
connection of the condition to a work injury. In light of
the finding of a work injury, the stipulation applies and
the expenses will be awarded.
IV. Finally, claimant seeks additional weekly benefits
under Iowa Code section 86.13. The unnumbered last
paragraph of Iowa Code section 86.13 states as follows:
If a delay in commencement or termination of benefits occurs
without reasonable or probable cause or excuse, the
industrial commissioner shall award benefits in addition to
those benefits payable under this chapter, or chapters 85,
85A, or 85B, up to fifty percent of the amount of benefits
that were unreasonably delayed or denied.
*****
Turning to the case sub judice, it is rather apparent that
the claim was not investigated. Had there been a reasonable
investigation at the time the claim was denied in the fall
of 1988, the only evidence available would have supported
claimant's case. It is also apparent that defendants did
not and could not have relied upon the views of Dr. Kelly in
this denial of the claim as the opinions were not obtained
in a normal routine investigation process but only in
anticipation of litigation shortly before the hearing in
this case. At a minimum, to be "fairly debatable" an
insurer's denial of claim must have the support of medical
opinion if the claim itself has a supportive medical
opinion. This was not done in this case.*****Therefore, an
additional 10 percent of permanent partial disability
benefits appears to be a proper penalty for the unfair
claims practices shown in this case. These payments should
be made from the date defendants first became aware that the
injury was work related by Dr. Carlstrom, October 5, 1988.
WHEREFORE, the decision of the deputy is affirmed.
ORDER
THEREFORE, it is ordered:
That defendants shall pay to claimant two hundred (200)
weeks of permanent partial disability benefits at the rate
of two hundred thirty-five and 20/l00 dollars ($235.20) per
week from October 6, 1988.
That defendants shall pay to claimant healing period
benefits from May 20, 1988 through October 5, 1988 at the
rate of two hundred thirty-five and 20/l00 dollars ($235.20)
per week as stipulated by the parties.
That defendants shall pay an additional fifty (50) weeks of
permanent partial disability benefits for an unreasonable
denial of this claim. These payments shall be due from
October 5, 1988.
That defendants shall pay the medical expenses and mileage
expenses at the rate of twenty-one cents ($.21) per mile
listed in the prehearing report. Claimant shall be
reimbursed for any of these expenses paid by her.
Page 8
Otherwise, defendants shall pay the provider directly along
with any lawful late payment penalties imposed upon the
account by the provider.
That defendants shall pay accrued weekly benefits in a lump
sum and shall receive credit against this award for all
benefits previously paid.
That defendants shall receive credit for previous payment of
benefits under a nonoccupational group insurance plan, if
applicable and appropriate, under Iowa Code section 85.38(2)
less any tax deductions from those payments.
That defendants shall pay interest on weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
That defendants shall pay the costs of this matter including
the transcription of the hearing.
That defendants shall file activity reports on the payment
of this award as requested by this agency pursuant to
Division of Industrial Services rule 343 IAC 3.l.
Signed and filed this ____ day of March, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Charles E. Cutler
Attorney at Law
729 Insurance Exchange Building
Des Moines, Iowa 50309
Mr. Paul C. Thune
Attorney at Law
218 6th Avenue STE 300
P O Box 9130
Des Moines, Iowa 50306
5-1803
Filed April 7, 1994
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ROBERT WEST,
Claimant,
vs.
File No. 952365
PURINA MILLS, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
CIGNA PROPERTY & CASUALTY,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803
Non-precedential, extent of disability case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JOAN HOVEY, :
:
Claimant, :
:
vs. :
: File No. 952465
UNIVERSITY OF NORTHERN :
IOWA, A R B I T R A T I O N
:
Employer, D E C I S I O N
:
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
STATEMENT OF THE CASE
This is a contested case proceeding upon the petition
in arbitration of claimant Joan Hovey against her former
employer, the University of Northern Iowa, and the State of
Iowa. Ms. Hovey sustained a work injury in a slip and fall
on May 18, 1990, and now seeks benefits under the Iowa
Workers' Compensation Act.
A hearing was accordingly held in Waterloo, Iowa on
December 1, 1993. The record consists of joint exhibits
1-10, defendants' exhibit A and the testimony of claimant,
Beverly Bowen and Pamela Reed.
ISSUES
The parties have stipulated to the following:
1. Claimant sustained injury arising out of
and in the course of employment on May 18,
1990;
2. The injury caused both temporary and
permanent disability;
3. The extent of healing period is no
longer in dispute;
4. Permanent disability should be
compensated industrially;
5. The proper rate of weekly compensation
is $229.65;
6. Entitlement to medical benefits is no
Page 2
longer in dispute;
7. In addition to healing period benefits,
defendants paid 20 weeks of permanency
benefits at the stipulated rate; and,
8. Defendants paid $21,970.00 in long term
disability benefits for which they seek
credit under Iowa Code section 85.38(2).
Issues presented for resolution include:
1. The extent of permanent disability; and,
2. Whether defendants are entitled to
credit under Iowa Code section 85.38(2).
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
Joan Hovey, nearly 43 years of age at hearing, is a
high school graduate. She had no further formal education
prior to the subject work injury. Her work history includes
experience as a nurse's aide, cashier, factory assembly line
worker, restaurant hostess and baby sitter. Ms. Hovey
accepted work with the University of Northern Iowa as a
Motor Vehicle Operator II. Her primary responsibility was
pick up and delivery of mail, which involved lugging heavy
mail sacks weighing up to 100 pounds.
Claimant was injured while trying to lug a heavy cart
from a loading dock onto a truck. Her right leg slipped in
the space between the dock and the truck, causing an awkward
and twisted fall to her buttock. Claimant's left leg was
twisted at an awkward angle such that she struck her chin on
the left knee while falling.
Claimant was first treated by her family physician,
Steven Tarr, M.D., then was referred to an orthopedic
specialist, Arnold Delbridge, M.D. Dr. Delbridge has been
the primary treating physician.
Dr. Delbridge has diagnosed a severe thoracolumbar
strain/sprain superimposed on acquired spinal canal
narrowing at L3-4 and L4-5. He has imposed restrictions
against lifting in excess of 15 pounds repetitively or 30
pounds maximum, against lifting below knee level, against
repeated stooping or bending and against riding in a vehicle
for more than one hour at a time. He also anticipated that
claimant would have trouble sitting for a period of time
while seeking to further her education, an anticipation that
proved correct in the event. Dr. Delbridge also opined that
claimant reached maximum recovery on June 8, 1991 (although
Dr. Delbridge raised maximum lifting capacity from 20 to 30
pounds during the next year) and has assigned a four percent
impairment rating to the body as a whole. Obviously, as Dr.
Delbridge has pointed out, claimant cannot return to her
former job. Indeed, she was discharged from that position
for this very reason.
Page 3
Dr. Tarr also recommended physical restrictions in
January 1991 against lifting or carrying in excess of 25
pounds, bending or stooping, and requiring a change of
position every 15 minutes, alternating between walking,
standing and sitting. Although these restrictions are
similar to those of Dr. Delbridge, the opinion of the
treating orthopedic specialist is preferred here.
Claimant also underwent a functional capacity
assessment by Dr. Charles Ross in January 1991. Dr. Ross
suggested a lifting/carrying restriction of 20 pounds
occasionally, ten pounds frequently, and would allow six
hours standing, walking or sitting in an eight-hour work
day.
As noted, claimant was discharged from her previous
position by defendant. On her own, she sought aid from the
Iowa Division of Rehabilitation Services, leading to some
classes at a technical institute as a medical secretary.
Claimant had problems sitting in class and carrying books
between classes, so this has not worked out well. Her
counselor at DVR, Lee Ann Russo, has written:
Such limitations/restrictions result in a
substantial vocational handicap in that: client
cannot ever return to any type of former
employment positions that she's had. She will
need to carefully monitor her condition over the
rest of her life as her prognosis is guarded. She
has to refrain from any jobs involving stooping,
bending, lifting, etc. and needs a position that
will allow her to stand and sit intermittently.
Client will assuredly benefit from the advocacy
services VR can offer in terms of both placement
and training. She will probably experience both
employer and community prejudice as a result of
her condition.
(Claimant's Exhibit 4, Page 128)
Defendants have offered claimant no other position,
although she has some recall rights. Shortly before
hearing, she was sent job descriptions for possible
positions as a Food Service Worker II and III, although it
is speculative as to whether she will actually be offered
either job. Since the injury, claimant has worked as a
volunteer for an accounting business, in a photographic
laboratory, as a sample distributor at grocery stores, and,
accepted her current part time position in January 1993.
She is currently a hostess at a restaurant working 3-5 hours
on 5 days per week, earning an average of $4.65 per hour
($2.79 plus a share of tips). Claimant was earning $8.59
per hour on a full time basis on the date of injury.
Defendant paid the cost of the long term disability
policy under which claimant received a stipulated $21,970.00
from September 27, 1990 through August 26, 1992.
Page 4
ANALYSIS AND CONCLUSIONS OF LAW
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Page 5
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
As claimant's DVR counselor has pointed out, there is
little in her past work history that she can now perform as
a result of this injury. The exception is restaurant
hostess, a position in which she is currently employed,
although only on a part time basis. Her hourly wage is only
slightly more than half hourly earnings with defendant, and
undoubtedly with fewer benefits. Retraining will be
difficult because of claimant's problems with extended
sitting. Claimant is of an age which ordinarily would be in
her peak earning years. The severe restrictions, especially
against extended sitting, will foreclose claimant from much
of the work which might previously have been suitable to her
education and work history.
Considering then these factors in particular and the
record otherwise in general, it is held that claimant has
sustained a permanent industrial disability equivalent to 50
percent of the body as a whole, or 250 weeks. Such benefits
accrued from the end of the healing period, specified by Dr.
Delbridge as June 8, 1991.
Iowa Code section 85.38(2), provides credits to an
employer where, as here, benefits are paid under a group
plan contributed to wholly or partially by the employer.
The credit is the net amount claimant receives after all
applicable taxes. Beller v. Iowa State Penitentiary, File
No. 799401 (Appeal Decision, 1991). Defendants are entitled
to credit.
ORDER
THEREFORE, IT IS ORDERED:
Defendants shall pay two hundred fifty (250) weeks of
permanent partial disability benefits at the rate of two
hundred twenty-nine and 65/100 dollars ($229.65) commencing
June 9, 1991.
Defendants shall have credit for twenty (20) weeks of
benefits previously paid, and the net (after taxes) long
term disability paid under Iowa Code section 85.38(2).
All accrued benefits shall be paid in a lump sum
together with statutory interest.
Defendants shall file a claim activity report following
compliance with this order.
Costs are assessed to defendants.
Signed and filed this ____ day of March, 1994.
Page 6
------------------------------
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Edward J Gallagher Jr
Attorney at Law
405 East Fifth Street
PO Box 2615
Waterloo Iowa 50704-2615
Mr Stephen Moline
Assistant Attorney General
Tort Claims Division
Hoover State Office Building
Des Moines Iowa 50319
5-1803
Filed March 28, 1994
DAVID R. RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JOAN HOVEY, :
:
Claimant, :
:
vs. :
: File No. 952465
UNIVERSITY OF NORTHERN :
IOWA, A R B I T R A T I O N
:
Employer, D E C I S I O N
:
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
5-1803
Industrial disability was determined.
2204 2501 2701
Filed January 10, 1995
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
CAROL DEGRADO,
File No. 952496
Claimant,
A L T E R N A T E
vs.
M E D I C A L
COOPER MANUFACTURING,
C A R E
Employer,
D E C I S I O N
and
AETNA CASUALTY CO.,
Insurance Carrier,
Defendants.
________________________________________________________________
2204 2501 2701
Claimant diagnosed with major depressive disorder granted alternate
care in the form of treatment by a psychiatrist. Defendants were
ordered to arrange a charge account at a pharmacy in the area of
claimant's residence to pay the costs of the medications prescribed by
the psychiatrist.