BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
DIANE YOCKEY,
Claimant,
vs.
File No. 953110
IOWA DEPT. OF TRANSPORTATION,
A P P E A L
Employer,
D E C I S I O N
and
STATE OF IOWA,
Insurance Carrier,
Defendant.
_________________________________________________________________
The record, including the transcript of the hearing before the deputy
and all exhibits admitted into the record, has been reviewed de novo on
appeal. The decision of the deputy filed May 25, 1994 is affirmed and
is adopted as the final agency action in this case.
Claimant and defendants shall share equally the costs of the appeal
including transcription of the hearing.
Signed and filed this ____ day of February, 1995.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Bruce H. Stoltze
Attorney at Law
550 39th St STE 200
Des Moines IA 50312
Ms. Julie Burger
Assistant Attorney General
Iowa Dept of Transportation
800 Lincoln Way
Ames IA 50010
1801; 1803; 2900
Filed February 21, 1995
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DIANE YOCKEY,
Claimant,
vs.
File No. 953110
IOWA DEPT. OF TRANSPORTATION,
A P P E A L
Employer,
D E C I S I O N
and
STATE OF IOWA,
Insurance Carrier,
Defendants.
___________________________________________________________
1801; 1803
Claimant was awarded temporary total disability benefits as a result of
a fall from a pick up truck. Claimant missed several days of work
subsequent to the work injury. The authorized treating physician
restricted claimant to light duty. She performed light duty from June
25, 1990 through July 13, 1990. On July 13, 1990, claimant was
terminated from her employment. The unrefuted testimony during the
hearing established that claimant was told she was terminated because
she could not perform the job adequately.
Claimant was also entitled to temporary total disability benefits from
the date she was terminated until she was able to return to work in
substantially similar employment.
2900
Prior to taking testimony, defendant made a motion to exclude certain
medical evidence. Claimant resisted the motion. Defendant reported
she had received the evidence only seven days prior to the date of the
back up hearing date. Defendant also argued that the evidence in
question was prejudicial to defendant.
Held that the evidence, if admitted, would substantially prejudice
defendant. The evidence, in so far as it discussed a permanent
impairment rating was prejudicial to defendant and was excluded from
the record.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DIANE YOCKEY, :
:
Claimant, :
:
vs. :
: File No. 953110
IOWA DEPT. OF TRANSPORTATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition of
claimant, Diane Yockey, against her former employer, the Iowa
Department of Transportation, self-insured employer. The case
was heard on May 17, 1994 at the office of the industrial
commissioner in Des Moines, Iowa. The record consists of the
testimony of claimant. The record also consists of joint
exhibits 1-6; claimant's exhibit 1, with the exception of any
paragraphs dealing with permanent impairment ratings; and
defendant's exhibit 1.
Prior to the commencement of the hearing, defendant filed a
motion to exclude documents. Claimant filed a resistance. The
deputy industrial commissioner determined prejudice would result
if claimant could introduce evidence regarding a permanent
impairment rating, since the evidence had only been obtained on
May 10, 1994.
Claimant made an oral request to keep the record open so
that a deposition could be taken of John A. Hurley, M.D.
Defendant resisted claimant's oral motion. The deputy determined
the record would not remain open for the purpose of taking
additional testimony.
ISSUES
The issues to be determined are: 1) whether there is a
causal relationship between the work injury and any temporary or
permanent disability; and 2) whether claimant is entitled to any
healing period or to any permanent partial disability benefits.
FINDINGS OF FACT
The deputy, having heard the testimony and considered all of
Page 2
the evidence, finds:
Claimant is the 39-year-old widowed mother of four children.
She did not receive a high school diploma. However, she does
have her GED. Claimant also has some training in the field of
cosmetology. She did not complete her course of study in this
area. She needs three additional months of schooling.
Consequently, she does not hold a valid license as a
cosmetologist.
Claimant has held a variety of positions in food service and
retailing. She has also engaged in assembly line work.
Her earnings have been at the low end of the wage scale.
Usually claimant has earned in the $4.50 to $5.00 per hour pay
scale.
Currently, claimant is employed at a casino. She works in
"the bank section" of the casino. She started as a cashier where
she was paid $6.00 per hour. Because of her excellent work, she
has received several raises. At the time of the hearing claimant
was earning $8.50 per hour. This was the highest wage scale
which claimant had ever achieved in her career.
With respect to the issues in this case, claimant commenced
employment in February of 1990. She was hired as a heavy
equipment operator. Claimant described her duties as involving
heavy physical labor. Her duties included those duties which
were listed in joint exhibit 4-4. Some of those duties involved:
1. kneeling
2. climbing
3. lifting chunks of concrete
4. stooping
5. crawling
6. carrying signs
7. handling and changing tires
8. cutting trees
9. shoveling snow
10. driving trucks with manual transmissions and
clutches
On the date in question, claimant was handling a large
orange traffic sign which was mounted in her pickup truck. It
was an extremely windy day. While claimant was in the bed of the
truck, a huge gust of wind blew the sign into claimant and she
fell backwards from the bed of the truck. Claimant landed flat
on her back.
The injury was unwitnessed. As a result, claimant picked
herself up from the pavement, got into her truck and she drove to
the maintenance shop. She did not believe she had been injured
in the fall. Claimant did not report the work injury to anyone
on that day. Claimant indicated she had scraped her right
forearm in the fall.
On the following day, claimant reported her work injury to a
co-employee, Clifton Clever. Mr. Clever was not a member of
Page 3
management.
Claimant testified that with each day she began to
experience increasing back pain. She reported that her back hurt
in the area between her shoulders and the pain shot down her
back. Claimant attempted "home remedies" to alleviate her pain.
Claimant took aspirin, she used a heating pad, she had a neighbor
walk on her back, and she soaked in a tub. None of the usual
remedies was helpful.
Because claimant's condition did not improve, she sought
emergency room treatment at Burgess Memorial Hospital in Onawa,
Iowa. The record indicates that claimant went to the emergency
room on June 19, 1990. The hospital notes, for that date,
provide in relevant portion:
S: Ms. Yockey is a 35-year-old white female who
presents to the ER at 0100 on 6-19-90, with complaints
of back pain per one week's duration. She injured her
back approximately one week ago and [sic] working on a
sign. She had a friend walk on her back at that time
and she states it popped her back in about 10 different
places. She felt better initially, but the pain began
to get worse and finally became severe this evening.
She states she has increased pain with a deep breath as
well as with twisting, lying down and sitting....
O: Ribs are essentially nontender to palpation, no
increaed [sic] pain with lateral compression of
thoracic cage, however anterior posterior compression
reproduces the pain. Minimal tenderness on palpation
of the fourth (unreadable)...
q. 8 hours x 5 days #15. Called to Stangel Pharmacy
message machine. Tab 2 800 mg. MOtrin [sic] starter
dose given in ER. Patient is given a work profile
limiting her to 25 lbs. lifting with no repetitive
twisting, bending, x 5 days. She is to return to
clinic in 5 days if needed or if pain becomes worse,
call the clinic for an appointment sooner. 6-21-90/m.
(Exhibit 3, pages 2-3)
Two days later claimant returned to Garred Medical Clinic,
P.C., for follow up care. The clinical note indicated:
S: Patient comes to the clinic today for recheck of
her back pain. She complains of continuing pain
although it is getting better with her
anti-inflammatories. She also complains of epigastric
pain radiating to her back particularly when
swallowing. The pills seem to get stuck in the
epigastric area before going down. She denies any
previous history of peptic ulcer or hiatal hernia
reflux.
O: Thoracic spinous processes T4/5 and 9/10 tender
on palpation with pain on palpation of paraspinal
Page 4
muscles; however, this is less than previous exam.
Abdominal exam with mild pain on palpation of
epigastric area in right upper quadrant. No guarding
rebound, or masses noted. Liver function studies and
amylase within normal limits.
(Ex. 3, p.4)
X-rays of claimant's back were ordered. The x-rays were
taken at Burgess Memorial Hospital. The x-ray report is listed
as joint exhibit 4-1. Most of the report is illegible. However,
it appears to the undersigned deputy industrial commissioner that
the final sentence states: "IMPRESSION: 1) Mildly increased
degenerative changes, T9-T10."
Gerard J. Stanley, M.D., restricted claimant's activities.
Initially, claimant was restricted to: "No lifting greater than
25 lb or repetative [sic] bending, lifting, or twisting for 5
days- Return to clinic as needed for follow up." (Ex. 4, p. 2)
Dr. Stanley modified the restrictions. He indicated that:
limited duty; no heavy lifting (25 lb.) No standing
etc. I crossed of [sic] a job description. May do
circled items /c limitations listed.
x 2 wks
Return to work 25 June 90
(Ex. 4, p. 3)
Claimant was thus precluded from engaging in operating 90
pound jackhammers; lifting chunks of concrete to be loaded or
unloaded; crawling inside circular and box culverts; carrying
signs and wood posts; handling and changing tires; and cutting
trees and brush with axes and chainsaws.
On July 7, 1990, claimant returned to the clinic. Again she
was seeking follow up care. The clinical note for that date
indicated that:
Patient returns to the clinic today for followup of
her back pain and gastritis. She states that the back
pain has improved somewhat. She is having no current
problems with her gastritis.
O: Able to heel-toe walk quite well. Straight leg
raise is negative. Figure 4 test negative. Mild pain
right sciatic groove with palpation. Tender to
palpation over the posterior superior right iliac crest
and S1 joint. There are small trigger points noted
along the paraspinal muscles lumbar to thoracic, left
and right. DTR's are equal and 1-2+ bilateral, patella
and ankle jerk.
A: Back pain slowly resolving.
Page 5
P: Will start Flexeril 10 mg. 1 tid x. 10 days.
Note to employer to continue duty limitations x. 2
weeks. She was referred to physical therapy for
Williams stretching exercises with heat, cold or
ultrasound as needed. Return to clinic in two weeks
for followup.
(Ex. 4, p. 5)
Claimant participated in physical therapy. Roger Svec, LPT,
noted the following relative to claimant's treatment:
A: This patient seemed to be very irritated at T4,
especially with secondary muscle spasm surrounding
this area.
STG: 1) Increase active range of motion,
especially in rotation.
2) Decrease pain in thoracic back area.
P: Continue three x weekly for e. stim. and ice as
well as ultrasound and continued evaluation.
Page 6
(Ex. 5)
Claimant returned to work in a light duty capacity on June
25, 1990. She testified she was able to complete her light
duties. Claimant's restrictions were never lifted by the
authorized treating physician, Dr. Stanley.
However, on July 13, 1990, claimant's employment was
terminated. During questioning from the deputy industrial
commissioner, claimant indicated she was told she was terminated
because she could not do her job properly. At the time of her
termination, claimant was still a probationary employee.
She remained unemployed from July 13, 1990 until January of
1991 when she commenced employment with River Sales. While she
was employed at River Sales, claimant testified she engaged in
heavy lifting. At times, claimant testified she lifted more than
25 pounds in her position at River Sales.
Several months later, John A. Hurley, M.D., of the Division
of Rheumatology at Creighton University, examined claimant. The
physician authored a report dated September 18, 1990. In his
report Dr. Hurley opined:
Physical Exam reveals no evidence of peripheral active
synovial disease. There is some reproduction of pain
in the thoracic spine on extremes of lateral rotation
and bending of the cervical spine. Rotation of the
torso does reproduce some of the pain. Toe touching
does not bring on any pain.
There is some tenderness on palpation of the
mid-thoracic spinous processes as well as the
perispinal musculature.
Impression:
1. Soft tissue injury - secondary to accident.
Comments: Dr. Mock, I think Mrs. Yockey has some soft
tissue injury. I have taken the liberty of reviewing
her x-ray, and I do not see any change as compared to
several years ago. I do not see any vertebral
compression fractures. There is some very mild
degenerative arthritis that I do not think is
associated with her fall. I think most of her pain is
soft tissue in nature and, as such, should improve
although this sometimes takes many months.
From a symptomatic standpoint, I have taken the liberty
of giving her Ansaid 100 mg t.i.d. and started her on
Flexeril to be taken at nighttime.
(Ex. 6, pp. 1 & 2)
In January of 1993, claimant again saw Dr. Hurley. The
physician authored a report. In it, Dr. Hurley opined:
She states that she continues to have pain, but that
Page 7
it is not as severe at her current job, because of the
fact that she can alternate positions.
The pain is located in the interscapula area and
does increase with prolonged sitting or standing. The
pain will also bother her at nighttime and has awakened
her on occasion. The pain is helped somewhat by
Tylenol, but it does not completely subside with this.
There was no history of back discomfort or pain prior
to this accident.
On today's evaluation, there is no evidence of
peripheral synovitis in the upper or lower extremities
or cervical spine. Neurological exam is normal.
Examination of the back reveals a normal contour.
There is no evidence of perispinal spasm. There is
some tenderness upon palpation over the spine processes
in the inter scapula area between approximately T-3 and
T-6. Flexion of the back is done without pain.
Lateral bending of the back is accomplished with only
minimal pain. Rotation, however, is accomplished with
full range of motion, but with pain.
Impression: Interscapular pain-secondary to
accident which occurred in June of 1990.
X-ray was taken today and was compared to X-ray of
6-90 and 8-89. There are essentially no changes.
There continues to be some mild degenerative changes
anteriorally at T9, T10 and a mild compression
deformity at T8.
(Ex. 6, p. 3)
Dr. Hurley authored a final report, dated May 4, 1994. Only
part of the report was admitted as a portion of the evidence at
the hearing. The portion of the report which focused on a
permanent partial impairment rating was excised from the report.
The part of the report which summarized previous reports was
admitted. In claimant's exhibit 1, Dr. Hurley wrote in part:
With respect to your particular questions, I offer the
following:
1. It is my opinion that her injury arose out of and in
the course of her employment. I also think that
this injury is consistent with Ms. Yockey's
statement.
2. I have not seen Ms. Yockey since January of 1993,
but would anticipate due to the length of time since
the onset of the pain that she has reached maximum
medical improvement.
Whether Ms. Yockey could return to her previous work
activity is uncertain to me, again, because of the fact
that I haven't seen her in well over a year, I would
Page 8
think that any activity which was associated with a lot
of physical work such as lifting, bending and twisting
would certainly aggravate her condition.
From the standpoint of restrictions, I would ask Ms.
Yockey not to be involved in a position that involved a
lot of lifting, twisting, or bending. She would also
do best, I think, from an occupation that would allow
her to alternate positions as the need arose.
CONCLUSIONS OF LAW
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. App. P. 14(f).
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 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).
In the case before the undersigned deputy industrial
commissioner, the claimant has proven there is a nexus between
claimant's work injury and claimant's back condition. Dr.
Stanley and Dr. Hurley provide medical opinions which support
such a conclusion. Dr. Stanley had restricted claimant to light
duty shortly after the work injury. Dr. Hurley opines in
claimant's exhibit 1 that claimant's condition is consistent with
her work injury.
In cases of doubt, the workers' compensation statute is to
be liberally construed to extend its benefits to every employee
who can fairly be brought within it. Sugared v. Silver Crest
Golf Club, 256 Iowa 453, 459, 129 N.W.2d 636, 639 (1964).
Page 9
Claimant has proven by a preponderance of the evidence there
is a nexus between the work injury and claimant's back condition.
The next issue she is required to prove is the nature and extent
of her work injury. Claimant has failed to establish that she
has sustained any permanency. In fact, the evidence supports a
contrary conclusion. Claimant does not have any permanent
impairment. She has been able to return to work. She has
successfully worked as an assembly line worker. She has also
been able to find employment as a cashier. Both positions are
the types of positions which she had held prior to her work
injury. Claimant has testified she has even engaged in lifting
25 or more pounds during the course of her employment with River
Sales.
Claimant is diagnosed as having a soft tissue injury which
is secondary to her work injury. Since September of 1990,
claimant has only sought medical treatment for her back on one
occasion. That occasion occurred in January of 1993. Since
January of 1993, claimant has had no medical treatment. During
the course of the hearing, the undersigned deputy had ample time
to personally observe claimant. Throughout the duration of her
testimony, claimant was able to sit without any apparent
discomfort or pain. She did not alternate sitting with standing.
Nor did claimant squirm in her chair. It is apparent to this
deputy that claimant has not sustained any permanent impairment.
She is not entitled to any permanent partial disability benefits.
Claimant, on the other hand, has proven that she has
sustained a temporary total disability. Section 85.33(1) governs
the payment of temporary total disability benefits. The section
provides:
1. Except as provided in subsection 2 of this
section, the employer shall pay to an employee for
injury producing temporary total disability weekly
compensation benefits, as provided in section 85.32,
until the employee has returned to work or is medically
capable of returning to employment substantially
similar to the employment in which the employee was
engaged at the time of injury, whichever occurs first.
Claimant was off work from June 19, 1990 through June 24,
1990. She was restricted to light duty by the authorized
treating physician, Dr. Stanley. Claimant returned to light duty
on June 25, 1990. She worked without apparent problems until she
was terminated on July 13, 1990. According to claimant's
unrefuted testimony, she was informed that she was terminated
because she could not perform the work in a satisfactory manner.
At that point in time, claimant was unemployed. It seems to this
deputy, claimant was not able to perform even light duty tasks.
Otherwise, defendant would have allowed claimant to return to
work.
From July 13, 1990 through January 1, 1991, claimant was
unemployed. She was not able to secure substantially similar
employment until January of 1991. Claimant did not provide the
exact date on which she commenced her employment with River Sales
Page 10
where she worked on the assembly line. Therefore, for purposes
of this action, the undersigned deputy determines that claimant
could not return to substantially similar employment until
January 2, 1991. Claimant is entitled to temporary total
disability benefits from June 19, 1990 through June 24, 1990, and
from July 13, 1990 through January 1, 1991. She is entitled to
25.571 weeks of temporary total disability benefits for that
period at the stipulated rate of $214.75 per week.
ORDER
THEREFORE, it is ordered:
Defendant shall pay unto claimant twenty-five point
five-seven-one (25.571) weeks of temporary total disability
benefits at the stipulated rate of two hundred fourteen and
75/l00 dollars ($214.75) per week for the periods from June 19,
1990 through June 24, 1990, and from July 13, 1990 through
January 1, 1991.
Defendant shall take credit for all benefits previously
paid.
Accrued benefits are to be paid in a lump sum together with
Page 11
statutory interest at the rate of ten percent (10%) per year
pursuant to section 85.30, Iowa Code, as amended.
Defendant shall file a claim activity report as requested by
this division and pursuant to rule 343 IAC 3.1.
Costs are taxed to defendant pursuant to rule 343 IAC 4.33.
Signed and filed this ____ day of May, 1994.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Page 12
Copies To:
Mr Bruce H Stoltze
Attorney at Law
550-39th Street, Suite 200
Des Moines, Iowa 50312
Ms Julie Burger
Mr Noel C Hindt
Assistant Attorney Generals
Iowa Department of Transportation
800 Lincoln Way
Ames, Iowa 50010
1801; 1803; 2900
Filed May 25, 1994
MICHELLE A McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DIANE YOCKEY,
Claimant,
vs.
File No. 953110
IOWA DEPT. OF TRANSPORTATION,
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.
___________________________________________________________
1801; 1803
Claimant was awarded temporary total disability benefits as a
result of a fall from a pick up truck. Claimant missed several
days of work subsequent to the work injury. The authorized
treating physician restricted claimant to light duty. She
performed light duty from June 25, 1990 through July 13, 1990.
On July 13, 1990, claimant was terminated from her employment.
The unrefuted testimony during the hearing established that
claimant was told she was terminated because she could not
perform the job adequately.
Claimant was also entitled to temporary total disability benefits
from the date she was terminated until she was able to return to
work in substantially similar employment.
2900
Prior to taking testimony, defendant made a motion to exclude
certain medical evidence. Claimant resisted the motion.
Defendant reported she had received the evidence only seven days
prior to the date of the back up hearing date. Defendant also
argued that the evidence in question was prejudicial to
defendant.
The deputy industrial commissioner determined that the evidence,
if admitted, would substantially prejudice defendant. The
evidence, in so far as it discussed a permanent impairment rating
was prejudicial to defendant and was excluded from the record.
Claimant made an oral motion to keep the record open after the
hearing so that a deposition of a medical expert could be take
post hearing. Defendant resisted claimant's motion. The deputy
held that the record would not remain open subsequent to the date
of the hearing.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
THOMAS F. COLLIER,
Claimant,
vs.
File No. 953453
SIOUX CITY COMMUNITY SCHOOL
DISTRICT,
A P P E A L
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
Defendants.
____________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal.
ISSUES
Defendants state the following issues on appeal:
1. Whether the Deputy Commissioner erred in finding that
the Claimant was "exposed to Dursban" and; whether the
Deputy Industrial Commissioner erred in finding that the
levels of exposure were sufficient to cause minor symptoms
to claimant "given his level of sensitivity to the substance
(a matter of individual variation)" a fact unsupported by
testimony; and;
2. Whether the Deputy Industrial Commissioner erred in
concluding that in late 1989 Dursban was in a crystallizing
form and was activated by humidity or moisture thus causing
"new levels" which "were sufficiently high to cause
symptoms."
3. Whether the Deputy Industrial Commissioner erred in
concluding that claimant's numerous symptoms, including both
upper respiratory and lower respiratory were exacerbated by
Dursban exposure and Butcher's deodorant solution and
exposure to construction dust.
4. Whether or not the Deputy Industrial Commissioner erred
in concluding that exposure to "those substances" bears a
causal relationship to claimant's continued cipricol upper
and lower respiratory problems and dependence on
medication, including a dangerous oral steroid.
5. Whether the Deputy Industrial Commissioner erred in
finding that the claimant had sustained an "industrial
Page 2
disability" when he had returned to full-time employment for
full-time wages without restriction.
6. Whether the Deputy Industrial Commissioner's arbitration
decision of April 27, 1993 is based not on fact but on
speculation, conjecture and surmise.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed April 27, 1993 are adopted as final agency
action.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed April 27, 1993 are adopted as set forth
below. Segments designated by asterisks (*****) indicate
portions of the language from the proposed agency decision
that have been intentionally deleted and do not form a part
of this final agency decision. Segments designated by
brackets ([ ]) indicate language that is in addition to the
language of the proposed agency decision.
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).
Claimant also 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
Page 3
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 "arising out of" requirement is satisfied by
showing a causal relationship between the employment and the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986).
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).
Although causal relationship to claimant's current
condition is very much in dispute, the medical evidence
overwhelmingly establishes that exposure to Dursban caused
at least a temporary onset of various symptoms. Dr.
Bainbridge agrees. Dr. Wilder agrees. Dr. Thoman agrees.
Even Dr. Zorn agrees. Dr. Hepper addresses the chronic
problem, but does not address temporary symptoms. Claimant
has clearly met his burden of proof in establishing an
injury arising out of and in the course of employment by
reason of toxic exposure to Dursban TC, and to a lesser
extent, deodorant solution and construction dust.
That injury caused a healing period under Iowa Code
section 85.34(1). Claimant was off work from April 30
through May 9 and again on June 16, 1990 (one week, four
days). Healing period can be interrupted or intermittent.
Willis v. Lehigh Portland Cement Co., II-1 Iowa Industrial
Commissioner Decisions 485 (1984).
Under Iowa Code section 85.34(1), healing period is
compensable beginning on the date of injury and continuing
until the employee has returned to work, it is medically
indicated that significant improvement from the injury is
not anticipated, or until the employee is medically capable
of returning to substantially similar employment, whichever
first occurs. Permanency benefits accrue from the end of
healing period.
Of course, the parties vigorously dispute whether this
exposure caused permanent disability (or even, whether
claimant's current condition is an industrial "disability").
This issue is
Page 4
at the heart of the case and is properly resolved by
considering the conflicting medical opinion. Claimant's
upper and lower respiratory problems must be reviewed
separately.
Mr. Collier's asthmatic condition will be considered
first. Dr. Bainbridge, in addition to being extremely well
qualified, including board certification in occupational
medicine, has the advantage of being a primary treating
physician. Although his opinion was couched in terms of
strong probabilities, he believes claimant's cyclical
asthmatic condition was caused by Dursban exposure and has
concluded that this agent rendered claimant's airways "very
sensitive to a lot of different environmental agents." Dr.
Bainbridge's opinion was based on a correct history, in that
he was aware that Dr. Oggel had found no evidence consistent
with asthma or lung disease in 1986.
Dr. Thoman, a board certified toxicologist, attributed
hyperreactive airway disease with resultant increased
susceptibility to respiratory infection and chemical
sensitization to Dursban exposure. It will be recalled,
however, that increased sensitization to different
environmental agents is a controversial theory.
Dr. Hepper found it difficult to attribute both chronic
sinusitis and chronic asthmatic bronchitis to "exposure
which occurred some time ago," but apparently was referring
to the original onset of mild symptoms following the
pesticide application in 1987, and without considering the
greatly increased exposure beginning in late 1989.
Dr. Zorn, a board certified pulmonologist, is indeed
highly qualified, but lacks the credentials in clinical
toxicology and occupational medicine of Drs. Thoman and
Bainbridge. He finds that claimant's current condition was
not causally related by the exposure, and generally does not
believe that Dursban causes bronchial hyperreactivity. The
weight to be given Dr. Zorn's opinion, however, is
diminished by his mistaken belief that claimant had achieved
a return to his physical state prior to exposure and his
belief that claimant suffered a genetic asthmatic condition
prior to exposure, whereas Dr. Oggel (an expert who actually
saw and treated claimant in 1986) found otherwise.
The preponderance of evidence shows that claimant's
cyclical condition of asthmatic ill being and resultant
prednisone dependence is causally linked to Dursban
exposure. While cross-sensitization to other environmental
agents is less well established (Dr. Zorn's quoted testimony
on this subject is of comparable persuasiveness as the
opinions of Drs. Bainbridge and
Page 5
Thoman), it also simply makes sense that an individual so
damaged by asthma should refrain from exposure to other
respiratory inhalants or irritants (as suggested by Dr.
Thoman).
Industrial disability was defined in Diederich v.
Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as
follows: "It is therefore plain that the legislature
intended the term 'disability' to mean 'industrial
disability' or loss of earning capacity and not a mere
'functional disability' to be computed in the terms of
percentages of the total physical and mental ability of a
normal man."
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications,
experience, motivation, loss of earnings, severity and situs
of the injury, work restrictions, inability to engage in
employment for which the employee is fitted and the
employer's offer of work or failure to so offer. Olson v.
Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963);
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980);
Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660
(1961).
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.
Even though claimant's actual earnings have not been
diminished, he has sustained a diminution of earning
capacity. A showing that there has been no loss of actual
earnings does not preclude a finding of industrial
disability. Michael v. Harrison County, 34th Biennial
Report of The Iowa Industrial Commissioner 218 (1979);
[Arrow-Acme Corp. v. Bellamy, 500 N.W.2d 92 (Iowa App.
1993).] However, claimant's loss of earning capacity is
relatively limited. Without question, claimant's symptoms
have reduced his activities and enjoyment of life. However,
discomfort alone is not equivalent to industrial disability
absent an effect on earning capacity. Clute v. Countryside
Retirement Home, Number 876351 (Arb. Decn. November 29,
1990). Claimant's argument that industrial disability
should equal or exceed physical impairment ratings is
rejected. Impairment ratings are only one factor in
determining industrial disability.
However, there are factors tending to show industrial
disability. While defendant employer has been able to keep
claimant gainfully employed, he is doubtless a less
attractive candidate to other potential employers on the
competitive labor market, educational or otherwise.
Claimant has engaged in strenuous hobbies/employment
activities during the summer school break, activities which
he should now avoid pursuant to the restrictions very
reasonably suggested by Dr. Thoman. This includes welding,
Page 6
in which claimant has substantial experience. While
claimant may not have a history of actual employment for
remuneration in these hobby areas, that is a matter of
choice, not necessity. With several months off in which he
could work at skilled auto mechanics or welding jobs,
claimant had a capacity for additional earnings which no
longer exists to the same degree. The necessity of
continued use of Prednisone exposes claimant to increased
likelihood of ancillary problems such as frequent pneumonia.
Considering then these factors in specific and the
record otherwise in general, it is held that claimant has
sustained a permanent partial disability equivalent to *****
[25] percent of the body as a whole, or ***** [125] weeks.
Permanency benefits shall be payable from June 17, 1990.
On appeal, defendants misapply the case of Bearce v.
FMC Corporation, 465 N.W.2d 531 (Iowa 1991). That case is
limited to apportionment when a body part affected by a work
injury also had a prior disability. It does not stand for
the proposition that if a claimant returns to work after a
work injury, he has not suffered an industrial disability.
Second Injury Fund v. Hodgins, 461 N.W.2d 454 (Iowa 1990).
The parties also dispute entitlement to medical
benefits. Causal connection has been established pursuant
to the above analysis. Defendants shall pay the medical
expenses set forth in joint exhibit 37, directly paying
providers and reimbursing claimant as set forth in that
exhibit along with travel expenses of $410.34.
The rate of compensation is also disputed. The parties
agree that claimant was paid an annual salary of $36,461.
However, although this salary was paid over 12 months,
claimant worked only 9 months. The rate should be
calculated on a 9 month basis rather than a 12 month basis.
Evers v. West Delaware County Community School District,
(App. Decn. December 29, 1989). On that basis, claimant
earned a monthly total of $4,051.22. According to Iowa Code
section 85.36(4), the monthly gross earnings should be
multiplied by 12 and subsequently divided by 52 to determine
an average gross weekly wage: $934.90. According to the
Guide to Iowa Workers' Compensation Claim Handling published
by the Commissioner and effective on the date of injury, a
married individual entitled to three exemptions (as the
parties have stipulated) and gross weekly wages of $935 is
entitled to a compensation rate of $541.53.
WHEREFORE, the decision of the deputy is affirmed and
modified.
ORDER
THEREFORE, it is ordered:
That defendants shall pay unto claimant one point five
seven one (1.571) weeks of healing period benefits at the
rate of five hundred forty-one and 53/100 dollars ($541.53)
commencing April 30, 1990.
That defendants shall pay unto claimant one hundred
twenty-five (125) weeks of permanent partial disability
benefits at the rate of five hundred forty-one and 53/100
Page 7
dollars ($541.53) commencing June 17, 1990.
That defendants shall pay the medical expenses set
forth on joint exhibit 37, including mileage. As to
claimant personally, this totals one thousand five hundred
three and 85/100 dollars ($1,503.84).
That all accrued weekly benefits shall be paid in a
lump sum together with statutory interest.
That defendants shall pay the costs of this matter including
the transcription of the hearing.
Signed and filed this ____ day of February, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Charles T. Patterson
Attorney at Law
PO Box 3086
Sioux City Iowa 51102
Mr. Frank T. Harrison
Attorney at Law
2700 Grand Ave., Ste 111
Des Moines, Iowa 50312
1108.30; 2205; 1803; 3002
Filed February 25, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
THOMAS F. COLLIER,
Claimant,
vs.
File No. 953453
SIOUX CITY COMMUNITY SCHOOL
DISTRICT,
A P P E A L
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
Defendants.
____________________________________________________________
1108.30; 2205
Claimant proved cyclical upper and lower respiratory
problems were caused by exposure to Dursban in middle school
biology classroom.
1803
Loss of ability to engage in auto mechanics and welding
constitutes a loss of earning capacity, even though
claimant's history was recreational, not for remuneration.
3002
School teacher's rate was calculated on 9-month basis, not
12-month basis.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
THOMAS F. COLLIER, :
:
Claimant, :
:
vs. :
: File No. 953453
SIOUX CITY COMMUNITY SCHOOL :
DISTRICT, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
Claimant Thomas Collier, a school teacher, seeks
benefits under the Iowa Workers' Compensation Act upon his
petition in arbitration against defendant employer Sioux
City Community Schools and its insurance carrier, Employers
Mutual Companies. Mr. Collier asserts that he sustained
industrial disability by reason of exposure to a toxic
pesticide. He allegedly sustained injury arising out of and
in the course of employment on April 25, 1990.
This cause came on for hearing in Sioux City, Iowa on
November 18, 1992. Testimony was received from claimant,
Mike Dodd, Jim Gaul, Borse Pettersson, Walter Balmer, David
Adam, Richard Sutter, Michael Voloshen, Gary Winters, June
Lorimor, and Gerald Otto. In addition, joint exhibits 1-38
were received into evidence. Those exhibits include the
deposition testimony of Roger Harder, Robyn Barricks, Carl
Ramsey and Drs. Craig Bainbridge and Steven Zorn.
This decision holds that claimant did sustain injury as
he alleges and awards permanent partial disability benefits.
ISSUES
The parties have stipulated to the existence of an
employment relationship between claimant and Sioux City
Community Schools on or about April 25, 1990.
Page 2
Issues presented for resolution include:
1. Whether claimant sustained injury arising out of
and in the course of employment;
2. Whether there exists a causal nexus between the
alleged injury and either temporary or permanent disability;
3. The extent of temporary and permanent disability,
if any;
4. The rate of compensation;
5. Entitlement to medical benefits.
With respect to medical benefits, the parties have
stipulated that medical expenses were fair and reasonable
and incurred for reasonable and necessary treatment.
Defendants admit causal connection between those expenses
and the medical condition upon which claimant bases his
claim, but deny causal connection to the alleged work
injury. Defendants further claim that the expenses were
unauthorized, but this defense was ruled invalid at hearing
because defendants have denied liability on the claim,
thereby forfeiting the right to control the course of
medical treatment.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
Thomas Collier, 51 years of age at hearing, has been
awarded a Bachelor of Arts Degree by Morningside College and
a Master of Arts Degree by Washington State University.
Since obtaining his advanced degree, Mr. Collier has also
taken numerous other university level courses, mostly in
scientific disciplines. He has been a public school teacher
for some 29 years, the last 24 with defendant Sioux City
Community School District. He was a middle school biology
teacher in April 1990.
Mr. Collier is a large, robust-appearing man. During
his life, he has been quite physically active, engaging
heavily in such outdoor activities as hunting and fishing.
He also is something of a tinkerer, working on antique
automobiles and other mechanical devices. He can weld, do
construction work, and has skills in automobile mechanics.
Unfortunately, Mr. Collier is no longer healthy. He
suffers from severe sinusitis and asthma. His problems can
be traced back to 1987, when his biology classroom, Room
105, was treated for termites.
The pesticide company hired for this job proved inept.
Under the pine tongue-in-groove flooring of Room 105 was to
be found, in descending order, a wooden subfloor, a series
of parallel "sleepers" or floor joists filled with rather
crumbly, fragile concrete, a waterproof tile or mastic
compound, and a heavy portland cement foundation. The
exterminating company drilled approximately six holes to
Page 3
apply a termite insecticide known as Dursban TC in front of
an exterior greenhouse window, but failed to drill
completely through the bottom concrete layer and into the
underlying soil. The insecticide, unable to reach the
ground, apparently pooled above the waterproof mastic layer.
There, it proved to be something of a toxic timebomb.
In retrospect, Mr. Collier believes he may have
experienced some symptoms for as long as three years before
early 1990. However, it was in November 1989 that he
developed headaches to the degree that he began keeping
records on a pocket calendar. His symptomatology
progressively increased and worsened, including nausea,
fatigue and dizziness. By January 1990, he reported these
problems to the school principal, Jim Gaul. Early
complaints were not only of headache and other symptoms, but
of an unpleasant damp and moldy odor in the room. By this
time, some students had also complained of headache.
On February 15, 1990, the room was treated for the odor
by drilling holes in the floor around the perimeter of the
room and pouring in a concentrated deodorant solution.
Near this time, claimant agreed to an experimental
trade of classrooms with another teacher, Walter Balmer.
Mr. Balmer has been a science teacher for 15 years, 11 years
at East Middle School. He did not particularly detect an
odor, except as might be expected of a science room equipped
with a greenhouse, but quickly developed a dull headache and
sinus condition and felt "lousy" by the end of both days of
the switch. Those two days were the only days he suffered
those symptoms. Balmer refused to continue in Room 105 and
switched back with claimant.
At about this time, a steam pipe was found to be
leaking near Room 105. As much as three thousand gallons of
water may have escaped into the walls and floors for an
unknown time before the leak was discovered.
During April, as shown by the pocket calendar, symptoms
continued to develop, including cough and drainage. On
April 9, the calendar notes that claimant was "out of 105
until fixed." Mr. Collins first missed work for illness on
April 10, 11 and 12.
On April 16, the school district began to take up the
wooden flooring in Room 105. Robyn Barricks, building
service technician engineer, testified to a pesticide order
(which she had reported to her supervisor on February 15)
which became worse when the subfloor area was exposed to the
air. Floor removal continued on April 17, following which
the workers were called away to another job. They returned
April 26, after which the room was closed off.
In the meantime, claimant taught in a nearby classroom,
close enough to be bothered by the construction dust.
The school district then contracted for study by an
environmental consultant, Ramsey-Schilling Consulting Group,
Inc.
Page 4
Carl Ramsey, President of Ramsey-Schilling, testified
that a phase I investigation of Room 105's problems was
begun on May 23. Ramsey reported that he and environmental
chemist Theresa O'Neil detected a definite "pesticide" or
"mothball" odor immediately upon entering the room. In the
report given to the school district, the investigators
described experiencing physical symptoms themselves after
being in the room only a short period for initial
evaluation.
Among other tests, Ramsey-Schilling sought to detect
Chlorpyrifos (the active ingredient in Dursban TC) in two
locations, including in front of the greenhouse window where
the pesticide had originally been applied. Analysis of the
air sample at that point by High Performance Liquid
Chromatography disclosed a concentration of 110
micrograms/cubic meter.
The National Academy of Science has set threshold limit
values for a 24-hour exposure at 10 ug/cubic meter and for
an 8-hour day at 200 ug/cubic meter. But, that body
simultaneously recommends a more stringent domestic
inhalation standard of no greater than 10 ug/cubic meter.
Chlorpyrifos is an organophosphate insecticide which
kills insects by destroying the normal nerve functions.
Signs and symptoms of organic phosphate poisoning may
include: headache, dizziness, incoordination, muscle
twitching, tremors, nausea, abdominal cramps, diarrhea,
sweating, pinpoint pupils, blurred vision, salivation,
tearing, excessive urination and chest tightness.
"Ancestors of Dursban have long been known and were in fact
used to exterminate prisoners in Nazi Germany." Bloomquist
v. Wapello County, ___N.W.2d___ (Iowa, April 21, 1993). The
substance dries to a crystalline form and has a potency half
life of five years. However, it evaporates quickly when
exposed to the atmosphere, especially when exposed to
sunlight. By the time additional air samples were taken on
June 28, they showed concentrations of chlorpyrifos as
"within safe parameters." The apparent explanation is
depletion through exposure to sunlight. Ramsey-Schilling
concluded that persons in Room 105 would not have been
exposed to high levels of chlorpyrifos or the "Butcher's"
deodorant prior to the wood and concrete floor being torn
up.
The huge decrease in Dursban concentration between May
23 and June 28 suggests that there may well have been a
corresponding reduction in levels between April 16 (when the
floor began to be torn up) and May 23. Likewise, the
Ramsey-Schilling report does not take into account the
likelihood that Dursban was "activated" from the crystalline
form by humidity or actual moisture from the nearby steam
leak. Considering that a number of witnesses reported a
pesticide odor in early 1990, and given the striking
temporal relationship to the increase in claimant's
symptoms, this possibility seems very likely indeed. The
dramatic and otherwise unexplained experience of Mr. Balmer
also strongly supports this theory.
Page 5
Apart from such ancillary symptoms as nausea and
dizziness, claimant suffered (and suffers) from both upper
respiratory (sinusitis) and lower respiratory (asthma)
illnesses. He has been treated for the former by W. H.
Wilder, M.D., and, surgically, at the Mayo Clinic. He has
primarily treated for the latter problems with Craig
Bainbridge, M.D.
Dr. Bainbridge is a well qualified physician, board
certified in four separate specialities: internal medicine,
pulmonary disease, occupational medicine and critical care
medicine. He practices primarily in the field of pulmonary
disease. Dr. Bainbridge testified by deposition on April 1,
1992.
Dr. Bainbridge first saw claimant on May 4, 1990,
shortly after a dramatic and disabling asthma attack (the
first of his life) suffered during a hunting competition in
late April. According to David Adam, a hunting and fishing
friend of claimant's (and a member of the school board from
1976 to 1982), Mr. Collier was physically able to hunt only
for approximately five minutes.
Dr. Bainbridge's original impression was of resolving
pneumonia in the right lower lobe and asthmatic bronchitis.
He recommended that claimant complete a regimen of
antibiotics and prescribed Prednisone, an oral steroid.
By May 22, claimant's pneumonia had resolved and he was
much better, following which Dr. Bainbridge recommended an
inhaled steroid for at least one month before returning care
to a family physician.
However, claimant returned on June 18, with complaints
of chest tightness and constant productive cough; peak flow
measurements were markedly decreased. By June 25, though,
he was much improved.
Dr. Bainbridge has continued to treat claimant to the
present day, especially with Prednisone, AeroBid (an oral
steroid spray) and Theo-Dur, a medication used to dilate
bronchial tubes and improve asthmatic conditions. Of these
medications, Prednisone has the most potential danger:
A. Prednisone is a corticosteroid and has a
number of side effects. Prednisone can make one
more susceptible to infections. It can decrease
the cortex of the bones and predispose to
osteoporosis. There are some subcutaneous changes
in the skin that can make a person bruise easier.
It can make one gain weight. It can induce
hyperglycemia or steroid-induced diabetes, and
there are other problems that Prednisone can
cause.
(Bainbridge Deposition, Pages 13-14).
Dr. Bainbridge further testified that he had made
multiple attempts to taper claimant completely off
Page 6
Prednisone, or at least to reduce him to the lowest possible
dosage. Unfortunately, this has proven impossible.
Claimant's asthma will flare and cause increased coughing,
wheezing and shortness of breath until Prednisone is
restored or increased.
Dr. Bainbridge's long-term diagnosis is of asthma. The
primary symptoms are shortness of breath, tightness in the
chest and cough. Continued use of Prednisone makes claimant
a little more susceptible to some infections, and asthmatics
generally tend to have more pneumonias than the general
population.
Asked as to causation, Dr. Bainbridge testified:
Q. Can you state your professional opinion as
to whether or not the asthmatic condition of which
you have diagnosed Mr. Collier, and for which
you've followed him from May of 1994 forward, is
an occupational asthmatic condition?
A. I think there's a good chance that Mr.
Collier's asthma could be called occupational
asthma, as there is a -- I suspect there's a
strong probability that there is an agent which
has rendered his airways very sensitive to a lot
of different environmental agents.
Q. When you say there's an agent that has a
strong probability of rendering him sensitive to
agents, this Dursban cholinesterase inhibitor, is
that the agent, or some component of it, that
you're speaking of?
A. I suspect there's a strong probability that
that could be the agent.
(Bainbridge Deposition, Page 19).
As to prognosis, Dr. Bainbridge testified that claimant
probably would have continued difficulty, especially with
minor respiratory infections or exposure to certain
environmental agents, and moderate to significant medical
problems due to asthma, including pneumonia, bronchospasms
and difficulty with such environmental agents as smoke,
dust, fumes and even heavy perfume. At the time of his
deposition, Dr. Bainbridge was unprepared to rate
impairment. He stated that he could do so after a
subsequent examination, but none appears of record. Dr.
Bainbridge placed no restrictions on claimant's vocational
activities.
Dr. Bainbridge's opinions were based in part on
claimant having no history of asthma prior to 1987. As it
happens, claimant had been seen at Sioux City Allergy
Associates on July 14, 1986 with complaints of itchy eyes,
chest pain and occasional sensation of tightness in the
chest. Claimant noted at that time that cold air and odors
gave some sensation of tightness, but he was able to run and
participate in athletic endeavors such as road races with no
Page 7
breathing problem whatsoever. Chart notes of Dr. James
Oggel showed an impression in part of "no evidence
consistent with asthma or lung disease." Dr. Oggel wondered
if claimant's history of rib trauma (numerous fractured ribs
in a childhood fall and, later, playing football) might not
account for chest discomfort.
In August 1990, claimant was seen for upper respiratory
problems at the Mayo Clinic in Rochester, Minnesota. Norman
G. Hepper, M.D., a thoracic diseases and internal medicine
specialist, noted that x-rays of the sinuses showed complete
opacification of the frontal, ethmoid and left maxillary
sinuses. On August 9, claimant underwent surgery for the
establishment of bilateral nasoantral windows and bilateral
intranasal ethmoidectomy; diseased tissue was removed from
all areas.
On August 31, Dr. Hepper wrote that claimant should
always have an antibiotic on hand and should continue
avoidance of exposure to bronchial irritants. Dr. Hepper
found it "difficult" to attribute current chronic sinusitis
and chronic asthmatic bronchitis to "exposure which occurred
some time ago." This reference is to May 1987. He was
inclined to feel that claimant had suffered an infection
that spring, and that this had been the major problem.
In the intervening years, claimant's condition has
varied significantly and in cyclical fashion. From feeling
well, he develops symptoms of drainage which progressively
worsen, then are followed by heavy congestion and general
lower respiratory problems. He is treated with antibiotics
and increased Prednisone, gradually returning to "normal"
status. These symptoms somewhat affect his ability to teach
(he blows his nose in class excessively and suffers throat
tightness which hampers speaking). However, his attendance
record has remained very good.
Claimant began seeing Dr. Wilder for upper respiratory
problems in May 1992. Physical examination revealed polyps
on the right side of the nose and much mucous on both sides.
Assessment was of chronic sinusitis and polyposis with
perhaps an element of vasomotor rhinitis. Computerized
tomography of the sinus on August 4, 1992 showed marked
mucosal thickening in both frontal and maxillary sinuses
with opacification of the majority of the ethmoid air cells
and possible loss of bone secondary to osteomyelitis.
Dr. Wilder's chart note of June 10, 1992, contains an
observation that claimant's "trouble was probably started by
insecticide exposures."
Claimant has also been seen for evaluation by two other
physicians, Mark Thoman, M.D., and Steven K. Zorn, M.D.
Dr. Thoman is board certified in both pediatrics and
clinical toxicology. His report of October 19, 1992 pointed
out that the history of termiticide application correlated
with claimant's symptomatology and that air sampling
revealed Dursban contamination in excess of what is known to
cause symptoms. Dr. Thoman concluded that the most probable
Page 8
cause of claimant's symptomatology was exposure to Dursban
TC from Room 105 (that symptomatology had earlier been
described as respiratory distress, coughing, pneumonia,
nausea, dizziness, headache and muscle aches and pain).
Dr. Thoman went on to state that claimant's "effects
and sequelae" were, to a reasonable degree of medical
probability, a result of Dursban exposure. Dr. Thoman
further stated that claimant suffered hyperreactive airway
disease with resultant increased susceptibility to
respiratory infections and chemical sensitization as a
result of Dursban exposure. He suggested restrictions
against working in environments in which pesticides,
respiratory inhalants or irritants such as smoke, cleaning
solutions, or other chemicals were present. Dr. Thoman also
estimated functional impairment as a 30 to 40 percent
"disability."
At this point, a few words about Dr. Thoman are in
order. Under Iowa Code section 17A.14(5), this agency's
experience, technical competence and specialized knowledge
may be utilized in the evaluation of evidence. As a board
certified clinical toxicologist, Dr. Thoman has frequently
been called upon to offer expert opinion in litigation
before this agency. In Luna v. Meredith/Burda, (Arbitration
Decision, February 25, 1993), it was recognized that his
opinion has at times been accepted by the agency, but at
other times not. In particular, the undersigned recognized
in Peck v. Merrill Manufacturing Co., File Number 894350
(Arbitration Decision, February 26, 1991) that Dr. Thoman's
views on the subject of chemical sensitization are similar
to those who subscribe to the theory of "clinical ecology."
This is a controversial subject in medical science. Some
proponents believe in environmental illnesses whose victims
may become allergic or sensitized to practically all manmade
chemicals and substances. To date, the American Medical
Association has not accepted this theory. In any event, it
seems fair to say that non-allergic chemical sensitization
is a theory somewhat outside the mainstream of current
medical opinion.
Steven Zorn, M.D., is a board certified pulmonologist.
He testified by deposition on September 27, 1991. Dr. Zorn
saw claimant for an independent medical evaluation on August
16, 1991. Dr. Zorn's complete pulmonary function study
revealed a normal forced vital capacity, mild decrease in
the FEV 1 (Forced Expiratory Volume in 1 second) and
reduction in FEF (Forced Expiratory Flow Rate). Normal
total lung capacity and residual volume were normal.
Claimant responded well to bronchial dilators, with FEF 1
improving from 76 percent of predicted to 89 percent of
predicted and FEF improving from 43 percent to 77 percent of
predicted. Dr. Zorn's impression was of reversible, mild
airway obstruction of asthmatic type.
Claimant also underwent a cardiopulmonary exercise
stress test which Dr. Zorn saw as normal, without evidence
of exercise limitation compared to claimant's age and sex in
either the cardiac or pulmonary systems. Base line
screening spirometry was normal without evidence of
Page 9
exercise-induced bronchospasm.
Dr. Zorn concluded that claimant's asthma was not "at
present" causing any limitation in activity. He believed
that exposure to Dursban and Butcher's solution were likely
to have exacerbated the asthma between May 1989 and April
1990 and that persistence of symptoms from May 1990 through
July or August 1990 were attributable to construction dust
and ethmoid sinusitis. Dr. Zorn further stated that
Dursban, dust and Butcher's solution exacerbated but did not
cause claimant's asthmatic tendency, which he saw as genetic
in origin. He believed the clinical presentation of the
genetic predisposition was likely to surface when claimant
was exposed to non-specific irritants, whether they be cold
weather, toxic fumes or dust. Dr. Zorn further opined that
any irritant effect from exposure to those agents should
have disappeared two months after claimant's removal from
the environment (by August 1990) and stated his belief that
claimant should be able to discontinue his bronchial
dilators.
In his deposition testimony, Dr. Zorn made clear that
he understood from claimant's history that Mr. Collier had
achieved "back to normal" status, that is, "back to the
condition he was before he was exposed to the fumes." (Zorn
Deposition, page 49). No doubt this was a good faith
misunderstanding, but a misunderstanding nevertheless.
Actually, on the day claimant visited Dr. Zorn, he was at
the high point of his cyclical deterioration/improvement of
symptoms. Although claimant did quite well in exercise
testing, it is worth noting that he intentionally made a
"macho" effort to perform well (doing so is consistent with
a Minnesota Multiphasic Personality Inventory interpreted at
the Mayo Clinic in 1985); but so draining that claimant was
unable to drive himself back home after the evaluation and
was hospitalized within a few days. Claimant testified that
he is not always able to perform so well, and that this
level of exertion itself is much reduced from what he could
do before.
Dr. Zorn testified in somewhat more detail as to the
causation issue. He believes that claimant has a genetic
predisposition to develop asthma, and that this condition
was temporarily (but not permanently) aggravated by exposure
to Dursban TC. He does not believe that Dursban caused
residual bronchial hyperreactivity, and, except for such
caustics as hydrochloric acid, does not believe that any
toxic agents result in residual hypersensitivity:
Q. Do you have an opinion with reasonable
medical certainty based on your expertise, your
examination, the testing that's attached to your
report of August 16th -- almost all of which I
don't understand -- as to whether or not it
permanently aggravated the underlying asthmatic
tendency or temporarily aggravated it?
A. I believe it temporarily aggravated it.
Q. Why do you say that, sir?
Page 10
A. Because the organophosphates are agents
which work to stimulate bronchospasm. They work
by blocking an enzyme in the body. Once you
remove that substance from the person's
environment, it is no longer there to cause the
bronchospasm. It is a chemical phenomena that
they produce. It is not an immune response that
you develop. You do not have antibodies to
organophosphates.
(Zorn Deposition, Pages 81-82).
As to symptoms other than asthmatic, Dr. Zorn opined:
Q. Does it appear from those complaints that
are noted in that document that there are physical
problems or complaints that would be in addition
to or apart from what we might classify as classic
asthmatic complaints?
A. Yes.
Q. Do you have any opinions as to what would
account for those complaints that are apart from
any traditional asthmatic complaints?
A. I would suspect it would be the Dursban.
(Zorn Deposition, Page 55).
Asked specifically whether ethmoid sinusitis was
related to Dursban exposure, Dr. Zorn offered his suspicion
that this was an independent problem, but did not discuss
the issue in further detail. He rates claimant as having,
at worst, a ten to twenty percent impairment under the
American Medical Association Guides to the Evaluation of
Permanent Impairment, but does not attribute claimant's
continued need for medication to Dursban exposure.
All of this disparate medical opinion comes from highly
qualified and respected sources. Close questions are
presented as to which opinions should be given greater
weight.
Specific findings follow:
1. Claimant was exposed to Dursban, a toxic
substance, from 1987 through the date of injury.
During much of that time, levels of exposure were
sufficient to cause minor symptoms to claimant,
given his level of sensitivity to the substance (a
matter of individual variation).
2. Beginning in late 1989, the Dursban under the
floor of Room 105 was activated from its
crystalline form by humidity or moisture from a
nearby steam pipe leak. The new levels were
sufficiently high to cause symptoms in other
people and to greatly exacerbate claimant's
Page 11
symptoms.
3. Claimant's numerous symptoms, including both
upper respiratory and lower respiratory problems
were exacerbated not only by increased Dursban
exposure, but by the application of Butcher's
deodorant solution and, after leaving Room 105,
continued exposure to construction dust from the
floor removal project in 105.
4. Exposure to those substances bears a causal
relationship to claimant's continued cyclical
upper and lower respiratory problems and
dependence on medication, including a dangerous
oral steroid.
ANALYSIS AND CONCLUSIONS OF LAW
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
Claimant also 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 "arising out of" requirement is satisfied by
showing a causal relationship between the employment and the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986).
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).
Although causal relationship to claimant's current
condition is very much in dispute, the medical evidence
overwhelmingly establishes that exposure to Dursban caused
Page 12
at least a temporary onset of various symptoms. Dr.
Bainbridge agrees. Dr. Wilder agrees. Dr. Thoman agrees.
Even Dr. Zorn agrees. Dr. Hepper addresses the chronic
problem, but does not address temporary symptoms. Claimant
has clearly met his burden of proof in establishing an
injury arising out of and in the course of employment by
reason of toxic exposure to Dursban TC, and to a lesser
extent, deodorant solution and construction dust.
That injury caused a healing period under Iowa Code
section 85.34(1). Claimant was off work from April 30
through May 9 and again on June 16, 1990 (one week, four
days). Healing period can be interrupted or intermittent.
Willis v. Lehigh Portland Cement Co., II-1 Iowa Industrial
Commissioner Decisions 485 (1984).
Under Iowa Code section 85.34(1), healing period is
compensable beginning on the date of injury and continuing
until the employee has returned to work, it is medically
indicated that significant improvement from the injury is
not anticipated, or until the employee is medically capable
of returning to substantially similar employment, whichever
first occurs. Permanency benefits accrue from the end of
healing period.
Of course, the parties vigorously dispute whether this
exposure caused permanent disability (or even, whether
claimant's current condition is an industrial "disability").
This issue is at the heart of the case and is properly
resolved by considering the conflicting medical opinion.
Claimant's upper and lower respiratory problems must be
reviewed separately.
Mr. Collier's asthmatic condition will be considered
first. Dr. Bainbridge, in addition to being extremely well
qualified, including board certification in occupational
medicine, has the advantage of being a primary treating
physician. Although his opinion was couched in terms of
strong probabilities, he believes claimant's cyclical
asthmatic condition was caused by Dursban exposure and has
concluded that this agent rendered claimant's airways "very
sensitive to a lot of different environmental agents." Dr.
Bainbridge's opinions was based on a correct history, in
that he was aware that Dr. Oggel had found no evidence
consistent with asthma or lung disease in 1986.
Dr. Thoman, a board certified toxicologist, attributed
hyperreactive airway disease with resultant increased
susceptibility to respiratory infection and chemical
sensitization to Dursban exposure. It will be recalled,
however, that increased sensitization to different
environmental agents is a controversial theory.
Dr. Hepper found it difficult to attribute both chronic
sinusitis and chronic asthmatic bronchitis to "exposure
which occurred some time ago," but apparently was referring
to the original onset of mild symptoms following the
pesticide application in 1987, and without considering the
greatly increased exposure beginning in late 1989.
Page 13
Dr. Zorn, a board certified pulmonologist, is indeed
highly qualified, but lacks the credentials in clinical
toxicology and occupational medicine of Drs. Thoman and
Bainbridge. He finds that claimant's current condition was
not causally related by the exposure, and generally does not
believe that Dursban causes bronchial hyperreactivity. The
weight to be given Dr. Zorn's opinion, however, is
diminished by his mistaken belief that claimant had achieved
a return to his physical state prior to exposure and his
belief that claimant suffered a genetic asthmatic condition
prior to exposure, whereas Dr. Oggel (an expert who actually
saw and treated claimant in 1986) found otherwise.
The preponderance of evidence shows that claimant's
cyclical condition of asthmatic ill being and resultant
prednisone dependence is causally linked to Dursban
exposure. While cross-sensitization to other environmental
agents is less well established (Dr. Zorn's quoted testimony
on this subject is of comparable persuasiveness as the
opinions of Drs. Bainbridge and Thoman), it also simply
makes sense that an individual so damaged by asthma should
refrain from exposure to other respiratory inhalants or
irritants (as suggested by Dr. Thoman).
Industrial disability was defined in Diederich v.
Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as
follows: "It is therefore plain that the legislature
intended the term 'disability' to mean 'industrial
disability' or loss of earning capacity and not a mere
'functional disability' to be computed in the terms of
percentages of the total physical and mental ability of a
normal man."
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications,
experience, motivation, loss of earnings, severity and situs
of the injury, work restrictions, inability to engage in
employment for which the employee is fitted and the
employer's offer of work or failure to so offer. Olson v.
Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963);
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980);
Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660
(1961).
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.
Even though claimant's actual earnings have not been
diminished, he has sustained a diminution of earning
capacity. A showing that there has been no loss of actual
earnings does not preclude a finding of industrial
disability. Michael v. Harrison County, 34th Biennial
Report of The Iowa Industrial Commissioner 218 (1979).
However, claimant's loss of earning capacity is relatively
limited. Without question, claimant's symptoms have reduced
his activities and enjoyment of life. However, discomfort
Page 14
alone is not equivalent to industrial disability absent an
effect on earning capacity. Clute v. Countryside Retirement
Home, Number 876351 (Arb. Decn. November 29, 1990).
Claimant's argument that industrial disability should equal
or exceed physical impairment ratings is rejected.
Impairment ratings are only one factor in determining
industrial disability.
However, there are factors tending to show industrial
disability. While defendant has been able to keep claimant
gainfully employed, he is doubtless a less attractive
candidate to other potential employers on the competitive
labor market, educational or otherwise. Claimant has
engaged in strenuous hobbies/employment activities during
the summer school break, activities which he should now
avoid pursuant to the restrictions very reasonably suggested
by Dr. Thoman. This includes welding, in which claimant has
substantial experience. While claimant may not have a
history of actual employment for remuneration in these hobby
areas, that is a matter of choice, not necessity. With
several months off in which he could work at skilled auto
mechanics or welding jobs, claimant had a capacity for
additional earnings which no longer exists to the same
degree. The necessity of continued use of Prednisone
exposes claimant to increased likelihood of ancillary
problems such as frequent pneumonia.
Considering then these factors in specific and the
record otherwise in general, it is held that claimant has
sustained a permanent partial disability equivalent to
fifteen percent of the body as a whole, or 75 weeks.
Permanency benefits shall be payable from June 17, 1990.
The parties also dispute entitlement to medical
benefits. Causal connection has been established pursuant
to the above analysis. Defendants shall pay the medical
expenses set forth in joint exhibit 37, directly paying
providers and reimbursing claimant as set forth in that
exhibit along with travel expenses of $410.34.
The rate of compensation is also disputed. The parties
agree that claimant was paid an annual salary of $36,461.
However, although this salary was paid over 12 months,
claimant worked only 9 months. The rate should be
calculated on a 9 month basis rather than a 12 month basis.
Evers v. West Delaware County Community School District,
(App. Decn. December 29, 1989). On that basis, claimant
earned a monthly total of $4,051.22. According to Iowa Code
section 85.36(4), the monthly gross earnings should be
multiplied by 12 and subsequently divided by 52 to determine
an average gross weekly wage: $934.90. According to the
Guide to Iowa Workers' Compensation Claim Handling published
by the Commissioner and effective on the date of injury, a
married individual entitled to three exemptions (as the
parties have stipulated) and gross weekly wages of $935 is
entitled to a compensation rate of $541.53.
ORDER
THEREFORE, IT IS ORDERED:
Page 15
Defendants shall pay unto claimant one point five seven
one (1.571) weeks of healing period benefits at the rate of
five hundred forty-one and 53/100 dollars ($541.53)
commencing April 30, 1990.
Defendants shall pay unto claimant seventy-five (75)
weeks of permanent partial disability benefits at the rate
of five hundred forty-one and 53/100 dollars ($541.53)
commencing June 17, 1990.
Defendants shall pay the medical expenses set forth on
joint exhibit 37, including mileage. As to claimant
personally, this totals one thousand five hundred three and
85/100 dollars ($1,503.84).
All accrued weekly benefits shall be paid in a lump sum
together with statutory interest.
Costs are assessed to defendants.
Signed and filed this ____ day of April, 1993.
________________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Charles T Patterson
Attorney at Law
701 Pierce Street Ste 200
PO Box 3086
Sioux City Iowa 51102
Mr Frank T Harrison
Attorney at Law
Terrace Center Ste 111
2700 Grand Avenue
Des Moines Iowa 50312
1108.30;2205;1803;3002
Filed April 27, 1993
DAVID R. RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
THOMAS F. COLLIER,
Claimant,
vs.
File No. 953453
SIOUX CITY COMMUNITY SCHOOL
DISTRICT,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
Defendants.
___________________________________________________________
1108.30; 2205
Claimant proved cyclical upper and lower respiratory
problems were caused by exposure to Dursban in middle school
biology classroom.
1803
Loss of ability to engage in auto mechanics and welding
constitutes a loss of earning capacity, even though
claimant's history was recreational, not for remuneration.
3002
School teacher's rate was calculated on 9-month basis, not
12-month basis.
51402.30 51801 51402.60
Filed October 23, 1992
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
STEVEN BOLT,
Claimant,
vs.
File No. 953680
J.M. FOSTER, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
CNA INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
51402.30 51801 51402.60
In a disputed case, claimant was found to have sustained
injury which arose out of and in the course of employment as
alleged. He was awarded temporary total disability and
medical expenses, including expenses incurred after the end
of the period of temporary disability where he had
continuing residual complaints and the treatment was
effective at reducing those complaints.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
MICHAEL R. DELAY, :
:
Claimant, :
:
vs. :
: File Nos. 953774 &
954476
WOODWARD STATE HOSPITAL SCHOOL,:
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Michael
R. DeLay, claimant, against Woodward State Hospital School,
employer, and the State of Iowa, insurance carrier, to
recover benefits under the Iowa Workers' Compensation Act as
a result of injuries sustained on March 7, 1990 and March
29, 1990. This matter came on for hearing before the
undersigned deputy industrial commissioner on October 8,
1991. The record was considered fully submitted at the
close of the hearing. The record in this case consists of
joint exhibits 1-82 and defendant's exhibits 1-12. The
record also consists of claimant's testimony and testimony
from his wife. Defendant presented testimony from Gary
Books, Steve Overstreet and Margene Lockamy.
issues
Pursuant to the prehearing report and order dated
October 8, 1991, the parties presented the following issues
for resolution:
1. Whether claimant sustained injuries on March 7,
1990 and March 29, 1990, which arose out of and in the
course of employment with employer;
2. Whether the alleged injuries are a cause of
temporary and permanent disability and, if so, the extent
thereof; and,
3. Whether claimant's medical expenses are causally
connected to the work injuries.
Defendant raises the affirmative defense of lack of
notice under Iowa Code section 85.23 as it pertains to
claimant's March 7, 1990 injury.
Page 2
findings of fact
The undersigned has carefully considered all the
testimony given at the hearing, the arguments made and the
evidence contained in the exhibits herein, and makes the
following findings:
Claimant was born on April 16, 1961 and has been
married for five years. He had no children at the time of
his alleged injuries. In March 1990, he earned $301.00 per
week. Claimant has a GED certificate and 75 hours of
college credit from the University of Northern Iowa. Prior
to securing employment at Woodward State School, claimant
worked four years at Story County Care Facility and eight
months as a security officer for Garst Seed Company in
Madrid, Iowa. In November 1989, he commenced employment at
the Woodward State Hospital School as a resident treatment
worker. His duties included supervision and escorting of
mentally retarded, developed mentally disabled and mentally
disabled patients. He received a permanent assignment to
#101 Cottage which is a house-type setting with 16 patients.
Claimant testified that prior to March 7, 1990, he was in
excellent health and had no history of back problems.
At the hearing, claimant testified that on March 7,
1990, around 9:45 p.m., he had to restrain a patient by
applying a Mandt hold. In the process, the patient became
agitated and violent and caused both to slip and fall in the
dormitory hallway. Claimant testified that he did not fill
out an incident report because he did not realize the
severity of his injury. Although other workers were
allegedly nearby when the accident occurred, none came to
his assistance. Claimant testified that he reported the
incident to his supervisor, Gary Books which Mr. Books
denied. Claimant lost no time from work as a result of any
injury caused by this alleged incident.
Claimant also testified that on March 29, 1990, he had
another encounter with the same patient as on March 7, 1990.
He stated that this incident occurred at 4:15 p.m. in the
dormitory hallway. Claimant testified that he completed an
Incident Report and called the state nurse to report the
event. Claimant worked his entire shift on March 29, 30 and
31. Claimant testified that he worked through April 5,
1990, without difficulty. On the evening of April 5, 1990,
while bending to take an onion from the cupboard, claimant
testified that his back gave out. He had surgery and was
released to return to work on June 11, 1990, with no
restrictions. He worked a full day on the eleventh but felt
that the work he was assigned to do was beyond his physical
capacity. He returned to his treating physician on June 12,
1990 and was given another work release which included a 75
pound lifting restriction and a prohibition against
restraining difficult patients. Instead of returning to
work, claimant applied for long-term leave without pay.
This was later denied. On July 13, 1990, he was terminated
from hospital employment. Subsequently, he worked one week
in June 1991 laying sod at Beaver Run Golf Course. He quit
this job because he could not perform the lifting
Page 3
requirements. On July 19, 1991, he was re-hired by the
State of Iowa to work as a computer operator with the
Department of Natural Resources. This work is
sedentary-light in nature and requires knowledge of computer
operations. He earns $9.89 per hour which is the same
hourly rate he earned when he was terminated.
The pertinent medical evidence of record reveals that
on March 21, 1990, claimant presented to Kevin Massick,
M.D., with complaints of recurrent pain in the left gluteal
region, extending down the right thigh and shin into his
toes. Dr. Massick diagnosed sciatica and prescribed Empirin
and a heating pad. His condition did not improve and an
appointment was made for him to see George Makari, M.D.,
neurologist at Mercy Hospital (Joint Exhibit 1).
Claimant was scheduled for an appointment with Dr.
Makari on April 6, 1990. He testified that on April 5,
1990, after returning home from work, he bent down to
retrieve an onion from the cupboard and experienced
paralysis from the waist down. He testified that he turned
the burner off on the stove and then crawled to his upstairs
bedroom. He stated he was unable to walk or reach the wall
telephone to call for assistance. He stated that he crawled
into bed and was in excruciating pain. His wife came home
at 1:00 a.m. but he was half asleep and did not tell her
about the incident. The next morning he awoke at 6:00 a.m.
and kept a previously scheduled office visit with Dr.
Makari. Dr. Makari admitted him to Mercy Hospital that
afternoon for pain management, traction and evaluation.
An MRI scan of the lumbosacral spine was performed on
April 6, 1990. It revealed a small central L5-Sl disc
herniation, L4-5 disc bulge and mild foraminal stenosis
bilaterally at L5-Sl (Ex. 5). Patient progress notes
indicate that claimant was dissatisfied with his treatment
and requested discharge on April 7, 1990 (Exs. 9-10).
Claimant's symptoms persisted and on April 18, 1990, he
was seen in Mercy Hospital's Emergency Department. He was
diagnosed with a lumbar disc syndrome and advised to
continue traction and Ibuprofen (Ex. 13).
Claimant testified that he was dissatisfied with Dr.
Makari's treatment and asked Dr. Massick for another
referral. He saw Robert C. Jones, M.D., a neurologist, for
a second opinion on April 23, 1990. He presented with pain
in the low back and right lower extremity area with numbness
and tingling in the right great toe. During a follow-up
examination on April 26, 1990, Dr. Jones recommended surgery
(Ex. 15).
Claimant was admitted to Mercy Hospital Medical Center
on May 1, 1990, and Dr. Jones performed a lumbar laminectomy
at L4 on the right with removal of a large sequestrated disc
(Ex. 29). Claimant was discharged on May 6, 1990, with
diagnoses of lumbar disc with lumbar radiculopathy (Ex.
15-45).
Dr. Jones released claimant to return to regular work
Page 4
duties on June 11, 1990. He imposed no weight lifting
restrictions (Ex. 46). Claimant testified that he returned
to work on June 11, 1990 and was transferred to cottage
#104. His first day back, he had to put a restraining
device on the head of a maladaptive patient. He felt that
in view of his surgery he should not be required to do this
type of work and informed his supervisor, Lila Holdsworth of
this fact. He stated that Lila suggested that he return to
Dr. Jones with a description of the duties performed by a
resident treatment specialist to determine whether he could
medically perform this job. Dr. Jones prepared another work
release on June 12, 1990 and restricted claimant to lifting
between 50-75 pounds (Ex. 48). Claimant did not return to
work. Instead he put in for Long Term Disability and was
maintained on Leave of Absence status pending decision of
his request. On July 12, 1990, he was notified that "we
will be removing you from the payroll while awaiting
resolution of the Long Term Disability application. Your
last day of employment will be July 13, 1990...." (Ex. 69)
Claimant testified that his request was eventually denied.
On August 22, 1990, Dr. Jones reported to claimant's
attorney that "I would estimate Mr. DeLay's permanent
physical impairment to be 8% based on the AMA guides and my
experience...." (Ex. 50) On January 14, 1991, Dr. Jones
wrote to claimant's attorney that claimant's severely
ruptured lumbar disc came on after working with a violent
patient at Woodward State Hospital in March of 1990 (Ex.
51). Finally, on February 18, 1991, Dr. Jones prepared
another return to work release indicating that claimant was
able to return to regular duties on February 19, 1991 (Ex.
52).
conclusions of law
Claimant contends that he suffered two work related
injuries to his back on March 7, 1990 and March 29, 1990,
the severity of which was not apparent to him until April 6,
1990, when he received the results of an MRI scan of the
lumbar spine. Defendant disputes claimant's contentions and
deny that he sustained injuries which arose out of and in
the course of employment with employer.
Claimant has the burden of proving by a preponderance
of the evidence that he received injuries on March 7, 1990
and March 29, 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).
An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).
The injury must both arise out of and be in the course
of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246
Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406
of the Iowa Report. See also Sister Mary Benedict v. St.
Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen
v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
Page 5
The words "out of" refer to the cause or source of the
injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
The words "in the course of" refer to the time and
place and circumstances of the injury. McClure v. Union
et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa
402, 68 N.W.2d 63 (1955).
"An injury occurs in the course of the employment when
it is within the period of employment at a place the
employee may reasonably be, and while he is doing his work
or something incidental to it." Cedar Rapids Comm. Sch.
Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188
N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d
128 (1967).
The supreme court of Iowa in Almquist v. Shenandoah
Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934)
discussed the definition of personal injury in workers'
compensation cases as follows:
While a personal injury does not include an occupa
tional disease under the Workmen's Compensation
Act, yet an injury to the health may be a personal
injury. [Citations omitted.] Likewise a personal
injury includes a disease resulting from an
injury....The result of changes in the human body
incident to the general processes of nature do not
amount to a personal injury. This must follow,
even though such natural change may come about
because the life has been devoted to labor and
hard work. Such result of those natural changes
does not constitute a personal injury even though
the same brings about impairment of health or the
total or partial incapacity of the functions of
the human body.
....
A personal injury, contemplated by the Workmen's
Compensation Law, obviously means an injury to the
body, the impairment of health, or a disease, not
excluded by the act, which comes about, not through the
natural building up and tearing down of the human body,
but because of a traumatic or other hurt or damage to
the health or body of an employee. [Citations
omitted.] The injury to the human body here
contemplated must be something, whether an accident or
not, that acts extraneously to the natural processes of
nature, and thereby impairs the health, overcomes,
injures, interrupts, or destroys some function of the
body, or otherwise damages or injures a part or all of
the body.
Claimant testified that on March 7, 1990, he was
involved in an incident with a maladaptive patient named
Page 6
David Speck. He testified that he had to separate Mr. Speck
from another patient and in the process of escorting him
back to his bedroom they both fell and hit the floor. He
experienced some discomfort in his back upon hitting the
ground. He testified that although there were other people
nearby, no one witnessed the incident. He stated that he
did not fill out an incident report because he was not aware
of the severity of his injury at that time. He worked the
rest of his shift that evening and took no time off work due
to the incident. His supervisor, Gary Books, testified that
he was not notified of a work-related injury on March 7,
1990.
Claimant has the burden of proof. Claimant has not
shown by a preponderance of the evidence that he received an
injury on March 7, 1990, which arose out of and in the
course of employment with employer. Claimant's testimony in
this regard is not supported by the documentary evidence in
the record and, in fact, is specifically refuted by his
supervisor. Claimant was not unaware of the procedure for
filing an incident report. Without corroboration, the
undersigned cannot accept claimant's version of the events
that transpired on March 7, 1990.
Even if claimant had prevailed on the arising out of
and in the course of employment issue, claimant's claim as
to a March 7, 1990 injury would have failed on account of
his failure to give his employer timely notice of his
condition as required by Iowa Code section 85.23.
Section 85.23 requires an employee to give notice of
the occurrence of an injury to the employer within 90 days
from the date of the occurrence, unless the employer had
actual knowledge of the occurrence of the injury.
The purpose of the 90-day notice or actual knowledge
requirement is to give the employer an opportunity to timely
investigate the facts surrounding the injury. The actual
knowledge alternative to notice is met when the employer, as
a reasonably conscientious manager, is alerted to the
possibility of a potential compensation claim through
information which makes the employer aware that the injury
occurred and that it may be work related. Dillinger v. City
of Sioux City, 368 N.W.2d 176 (Iowa 1985); Robinson v.
Department of Transp., 296 N.W.2d 809 (Iowa 1980). The time
period for giving notice does not begin to run until the
claimant, as a reasonable person, should recognize the
nature, seriousness and probable compensable character of
the injury. The reasonableness of claimant's conduct is to
be judged in light of claimant's education and intelligence.
Claimant must know enough about the condition or incident to
realize that it is both serious and work connected.
Positive medical information is unnecessary if information
from any source gives notice of the condition's probable
compensability. Robinson, 296 N.W.2d 809.
Failure to give notice is an affirmative defense which
the employer must prove by a preponderance of the evidence.
DeLong v. Highway Commission, 229 Iowa 700, 295 N.W. 91
(1940).
Page 7
Claimant clearly did not give his employer actual
notice of his injury within 90 days of the incident. He
filed an original notice and petition regarding this alleged
injury on October 12, 1990. At the hearing, claimant's
supervisor presented a log he personally kept of all
employee actions related to on-the-job absences. There are
no entries pertinent to a March 7, 1990, work-related
injury. In fact, on April 4, 1990, claimant called in sick
indicating that his back went out when he was at home. He
called back on April 9, 1990, and was specifically asked
whether his back problem was an on-the-job injury. Claimant
answered in the negative and stated that his back went out
when he was picking up a vegetable at home. When he called
on April 23, 1990, to inform employer that he was having
back surgery, Mr. Books again asked him if he was sure that
this was not an on-the-job injury. He stated again that he
had hurt his back at home (Defendant's Ex. 11). Claimant
had every opportunity to put employer on notice that an
incident occurred at work which resulted in a back injury.
However, he failed to do so. For the above reasons, it is
concluded that claimant's failure to comply with the notice
requirement of section 85.23 also prevents him from
recovering from employer on account of his claimed injury
on March 7, 1990. Therefore, claimant takes nothing from
this proceeding in agency File No. 954476.
Claimant has also failed to meet his burden of proof in
regard to his alleged March 29, 1990 injury.
Claimant's testimony conflicts with the documentary
evidence of record. Claimant testified that on March 29,
1990, he was restraining Mr. Speck in the hallway and
slipped and fell on the wet floor. He testified that he
experienced back pain as a result of the fall. On this
occasion, he filed an incident report stating that "[d]uring
a [sic] aggression of client #7713 I bit my lip and
experienced some lower back pain/tenderness." (Exs. 67,
81-82) The incident occurred at 3:30 p.m. and claimant
reported it to Nurse Lockamy. The nurse recorded the event
on the incident report and indicated that claimant declined
to see a physician. Claimant's recitation of the events
which allegedly occurred on March 29, 1990, do not correlate
with the incident report in a few respects. First, in
describing the incident, claimant did not mention that he
slipped and fell on a wet floor. Secondly, claimant
testified that the patient who was the subject of this
incident was the same Mr. Speck he encountered on March 7,
1990. In his written description of the incident, claimant
identifies client #7713. Client #7713 is a Mr. Eugene
Hanson. Thirdly, claimant testified that the incident
occurred in the hallway of the dormitory. The incident
report indicates that the incident occurred in the
"courtroom." Mr. Books testified that the courtroom is the
canteen. He also stated that Mr. Speck would not have been
in the canteen because it wasn't one of his regular stops.
He also testified that claimant reported a March 7, 1990
incident to him and identified patient #7713 as being
involved.
Page 8
Thus, it appears that claimant's testimonial version of
the March 29, 1990, incident significantly conflicts with
the incident report he completed within one hour after the
incident occurred. The undersigned finds that the
statements recited in the written incident report are more
reliable than claimant's testimony since they were written
closer to the incident and prior to filing a workers'
compensation claim. It is also difficult to understand why
claimant neglected to describe a slip-and-fall incident, if
in fact one occurred, when he completed the incident report.
Furthermore, while it is possible that claimant confused the
identification of the patient involved, it is unlikely that
he could not remember the place where the event occurred.
Claimant testified that he slipped in the hallway. The
Incident Report identifies the canteen as the location of
the event. Claimant testified that the patient involved was
Mr. Speck. The Incident Report identifies Mr. Hanson as the
patient involved.
The evidence is conflicting and confusing. Mr. Books'
Employee Action log shows that when claimant called on April
9, 1990, he indicated he would be back to work on April 15,
1990 (Deft's Ex. 11). Instead of returning to work on April
15, 1990, claimant called Mr. Books, who was not in the
office that day, and spoke to Mr. Steve Overstreet who just
happened to be working that Sunday afternoon. He informed
Mr. Overstreet that he hurt his back while working in the
garden. Claimant testified that he had no significant back
pain or limitations which required being off work until
April 6, 1990, when, while leaning over to get an onion, he
felt excruciating pain. This incident occurred after work
when claimant was at home.
After carefully considering the total evidence in this
case, the undersigned concludes that claimant has not shown
by a preponderance of the evidence that he received an
injury on March 29, 1990, arising out of and in the course
of employment with employer. Numerous inconsistencies in
claimant's testimony and his inability to remember certain
dates and events cast doubt on the veracity of his
contentions. Furthermore, some of his testimony is
contradicted by other witnesses and the documentary evi
dence. Claimant is not a credible witnesses. He has made
too many inconsistent statements which make it impossible to
support a recovery in this case. Where the versions of the
injury change, the undersigned cannot determine which
version to believe. This determination is dispositive of
all other issues. Therefore, claimant takes nothing from
File No. 953774.
order
Claimant takes nothing from this proceeding in agency
File Nos. 954476 and 953774.
The parties shall pay their own costs.
Signed and filed this ____ day of October, 1991.
Page 9
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Page 10
Copies To:
Mr. John D. Jordan
Attorney at Law
801 Keeler St
P O Box 219
Boone IA 50036
Mr. Dean A. Lerner
Assistant Attorney General
Hoover State Office Bldg
Des Moines IA 50319
5-1100
Filed October 22, 1991
JEAN M. INGRASSIA
before the iowa industrial commissioner
___________________________________________________________
:
MICHAEL R. DELAY, :
:
Claimant, :
:
vs. :
: File Nos. 953774 & 954476
WOODWARD STATE HOSPITAL SCHOOL,:
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1100
Claimant, a resident treatment worker at Woodward State
School, alleges work-related injuries on March 7, 1990 and
March 29, 1990. Claimant's inconsistent statements make it
impossible to support a recovery in this case. Where the
versions of the injuries change, the undersigned cannot tell
what version to believe. Claimant is not a credible
witness. He made too many inconsistent statements in regard
to the manner in which he was supposedly injured. Some of
his testimony was contradicted by other witnesses and the
documentary evidence. After reviewing the total evidence in
this case, the undersigned concludes that claimant did not
receive injuries arising out of and in the course of his
employment with employer.