BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LINDA HOLSEID,
Claimant,
vs.
File No. 954435
FIRESTONE TIRE & RUBBER CO.,
A P P E A L
Employer,
D E C I S I O N
and
CIGNA,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
Defendants' appeal from an arbitration decision
awarding claimant 40 percent permanent partial disability
benefits.
The record on appeal consists of the transcript of the
arbitration hearing and of joint exhibits 1 through 24.
Both parties filed briefs on appeal.
ISSUES
Defendants state the issues on appeal as:
1. Whether the deputy industrial commissioner erred in
finding that claimant sustained a personal injury arising
out of and in the course of her employment on March 27,
1989;
2. Whether the deputy industrial commissioner erred in
finding that as result of that injury claimant had sustained
a bilateral thoracic outlet syndrome;
3. Whether the deputy industrial commissioner erred in
permitting an amendment to the application for arbitration
filed at the hearing without prior notice to counsel for the
defendants, which, in effect, allowed the claimant to plead
cumulative injury;
4. Whether the deputy industrial commissioner erred in
finding that the claimant sustained an industrial disability
of 40 percent of the body as a whole together with
intermittent healing [period] and medical expense.
FINDINGS OF FACT
The arbitration decision adequately and accurately
reflects the pertinent findings. It will not be totally
reiterated herein.
Page 2
James S. Blessman, M.D., testified by way of his
deposition taken March 3, 1992. Dr. Blessman is board
certified in family practice and chronic pain management.
He practices primarily in chronic pain management and
occupational medicine.
The following colloquy took place at Dr. Blessman's
deposition:
Q. Can a condition or the condition you've
described as thoracic outlet syndrome develop
without trauma or repetitive use of the arms and
shoulders?
A. Yes, it can.
Q. And can you tell me how that can develop?
A. The condition again is a problem where there's
not enough space for some very fragile tissues,
nerves, and arteries and veins. And there are a
number of things that can cause the problem of
there not being enough space.
One of the problems in repetitive use or when it
would be caused by repetitive use is when the
muscles enlarge and that encroaches upon the space
and causes some problems. Other patients may just
have a particular shape to their body. We're all
a little bit different, and some patients are just
born with a smaller space. A few people actually
have an extra rib that very definitely compresses
this area or very definitely could compress this
area.
People who gain weight, fat tissue, or maybe just
fluid weight can take up extra space in this area
and cause development of the symptoms. And many,
many times it just occurs, and we really have no
definite idea where it came from. It just happens
to be there. It quite frequently is bilateral,
comes on on both sides, because of, again, the way
a patient is shaped anatomically.
(Blessman Deposition, page 10, line 9 - page 11, line 12)
The following dialogue with the doctor ensued later:
Q. Is it more common for a thoracic outlet
syndrome to occur in a male or a female, Doctor?
A. I believe it's more common in females, at
least that has been my experience.
Q. Do you have any opinion as to why that is the
case?
A. Yes, I do.
Page 3
Q. What is that opinion?
A. Females tend to be more prone to collect fluid
and have a higher content of fatty tissue which
can occupy the space and make us have a high risk
of compression.
(Blessman Deposition, page 21, line 25 - page 22, line 11)
Dr. Blessman opined that bead building was not likely
to have caused claimant's diagnosed thoracic outlet syndrome
in that claimant had thoracic outlet syndrome bilaterally
and bead building involved different activities for each
hand. Additionally, Dr. Blessman, who has actually observed
bead building, indicated that the job is done with the hands
at chest level and not at or above shoulder level and does
not entail heavy lifting likely to produce neck or shoulder
problems. Dr. Blessman further opined that claimant's work
did not aggravate any predisposition to thoracic outlet
syndrome given that claimant's job activities did not
involve significant overhead work. The doctor stated that
claimant's bilateral development of thoracic outlet syndrome
further indicates that her syndrome was not related to her
work activities since claimant did not do the same job when
she developed her right thoracic outlet syndrome as she did
when her left thoracic outlet symptoms developed.
Dr. Blessman opined that claimant had sustained a soft
tissue injury while bead building which injury consisted of
complaints of wrist pain diagnosed as tendonitis. Dr.
Blessman stated that bead building requires fine work albeit
with the hands relatively ergonomically placed. He opined
that the fine grasping involved in bead building had caused
claimant's wrist symptoms and stated that he was uncertain
as to the cause of claimant's neck and shoulder symptoms.
CONCLUSIONS OF LAW
We first consider the question of whether the deputy
erred in permitting an amendment to the application for
arbitration to be filed at the hearing without prior notice
to counsel for the defendants, which, in effect, allowed the
claimant to plead cumulative injury.
Due process, in agency adjudications, requires that a
party be informed of the issue involved in order to prevent
surprise at hearing and allow the party reasonable
opportunity to prepare relative to the issue. The test is
one of fundamental fairness, not whether the notice meets
technical rules of common law pleading. Opposing parties
must be sufficiently appraised of the possibility that an
issue will arise that they can adequately prepare regarding
that issue in order to justify its inclusion at hearing
where another party has not formally plead it. See Oscar
Mayer Foods Corp. v. Tasler, 483 N.W.2d 824 (Iowa 1992).
Defendants argue that the deputy's permitting the
amendment to include claimant's last day at work as a time
of disablement prejudiced defendants by, in effect,
Page 4
permitting the case to be postured as a cumulative trauma
case with insufficient notice of that issue to defendants.
Defendants' argument is not well taken. Claimant's petition
filed September 26, 1990 does reflect, in paragraph 4, an
injury date of March 24, 1989, claimant's first date at work
at Firestone. Then, in paragraph 10 of the petition, in
answer to the question "How did the injury occur?" Claimant
states: "Repeated pulling on large rubber bands with her
right hand." The use of the word "repeated", should have
given defendants reason to consider that claimant was
alleging a repetitive or cumulative trauma injury.
Additionally, discovery by way of the answers to
interrogatories defendants posed and by way of medical
records was sufficient to give defendants further notice
that claimant was alleging repetitive or cumulative trauma
injury. The deputy's permitting the amendment at time of
hearing cannot fairly be said to have caused defendants
sufficient surprise as to constitute reversible error.
We consider together the questions of whether the
deputy erred in finding that claimant sustained a personal
injury arising out of and in the course of her employment on
March 27, 1989 and of whether the deputy erred in finding
that, as a result of that injury, claimant sustained
bilateral thoracic outlet syndrome.
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).
A personal injury contemplated by the workers'
compensation law means an injury, the impairment of health
or a disease resulting from an injury which comes about, not
through the natural building up and tearing down of the
human body, but because of trauma. The injury must be
something which acts extraneously to the natural processes
of nature and thereby impairs the health, interrupts or
otherwise destroys or damages a part or all of the body.
Although many injuries have a traumatic onset, there is no
requirement for a special incident or an unusual occurrence.
Injuries which result from cumulative trauma are
compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d
368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa
1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219,
38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries,
Inc., 218 Iowa 724, 254 N.W. 35 (1934). An occupational
disease covered by chapter 85A is specifically excluded from
the definition of personal injury. Iowa Code section
85.61(5); Iowa Code section 85A.8.
A cumulative injury may be found and a cumulative
injury date may be established even though the claimant has
relied on a traumatic injury theory and a traumatic injury
Page 5
date in claimant's pleadings. Johnson v. George A. Hormel &
Company, Appeal Decision, June 21, 1988; McCoy v. Donaldson
Company, Inc., Appeal Decision, April 28, 1989. The
standard for determining whether the defendant has had
adequate notice of the possibility that the cumulative
injury doctrine might be relied upon to justify an award of
benefits is one of fundamental fairness not whether notice
meets technical rules of common law pleading. Oscar Mayer
Foods Corp. v. Tasler, 483 N.W.2d 824 (Iowa 1992).
The appropriate date of injury for purposes of
computing workers' compensation benefits is the date at
which disability manifested itself. Disability is manifest
on that date when both the fact of injury and the causal
relationship of the injury to claimant's employment are
plainly apparent to a reasonable person. Tasler at 829.
Claimant's ability to identify specific work incidents,
with or without the need for medical care or need for time
off work, does not of itself obviate a claim of gradual or
cumulative injury. See Tasler, 483 N.W.2d 824; McKeever
Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).
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).
Dr. Blessman's opinion that claimant's work did not
produce her neck, shoulder and reputed thoracic outlet
syndrome is accepted over the contrary opinions of other
physicians. Dr. Blessman is the only opining physician who
actually viewed the jobs claimant performed at Firestone.
Dr. Blessman is the only occupational medicine practitioner
rendering an opinion as to the nature and the cause or
source of claimant's injury.
Furthermore, that claimant's reputed thoracic outlet
syndrome developed while claimant was performing light duty
work is consistent with Dr. Blessman's opinion that
claimant's syndrome and her neck and shoulder symptoms
Page 6
relate to claimant's anatomical structure and not to the
work she performed at Firestone. The mere fact that
claimant's bilateral conditions became symptomatic
contemporaneously with her work at Firestone is
insufficient, of itself, to indicate that the work at
Firestone was the cause or source of claimant's condition.
The circumstances of the work environment must play some
role in the development of the injury for claimant to
establish an injury arising out of and in the course of her
employment. Claimant has not established that the
circumstances of her work at Firestone either produced or
aggravated her neck or shoulder symptoms, generally
diagnosed as bilateral thoracic outlet syndrome.
We reach the question of whether the deputy erred in
finding that claimant sustained an industrial disability of
40 percent of the body as a whole together with intermittent
healing period and medical expense.
The right of an employee to receive compensation for
injuries sustained is statutory. The statute conferring this
right can also fix the amount of compensation payable for
different specific injuries. The employee is not entitled
to compensation except as the statute provides. Soukup v.
Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
Compensation for permanent partial disability begins at
termination of the healing period. Section 85.34(2).
Permanent partial disabilities are classified as either
scheduled or unscheduled. A specific scheduled disability
is evaluated by the functional method; the industrial method
is used to evaluate an unscheduled disability. Simbro v.
Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v.
Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v.
Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
A wrist injury is an injury to the hand, not the upper
extremity. The hand extends to the distal end of the radius
and ulna, including the carpus or wrist. Elam v. Midland
Mfg., II Iowa Industrial Commissioner Report 141 (App.
1981).
The only injury claimant has established as arising out
of and in the course of her employment with Firestone is
tendonitis. While Dr. Blessman has causally related that
condition to the work at Firestone, claimant has made no
showing that that scheduled member injury has resulted in
any permanent impairment which would entitle her to
permanent partial disability benefits for loss of use of her
hand. Claimant's permanent partial impairment rating and
claimant's restrictions relate to the residual of her
bilateral thoracic outlet syndromes and not to her wrist
tendonitis. Hence, those rating and those restrictions do
not establish any permanency on account of claimant's
work-related wrist tendontitis.
Additionally, the record does not demonstrate that
claimant actually lost work on account of the tendonitis
such that claimant would be entitled to any period of
temporary total disability benefits. Claimant's periods of
Page 7
time off work relate to claimant's thoracic outlet syndrome
and surgeries and not to the wrist tendonitis.
Additionally, while defendants are liable for medical costs
related to a work-related condition under section 85.27,
claimant's medical costs, as shown in joint exhibits 23 and
24, relate to care and treatment, including work hardening,
given as result of claimant's need for thoracic outlet
surgery and not as a result of claimant's wrist tendonitis.
Defendants are, therefore, not liable for those charges.
WHEREFORE, the decision of the deputy is affirmed in
part and reversed in part.
ORDER
THEREFORE, IT IS ORDERED:
Claimant take nothing from this proceeding.
Claimant pay costs of this appeal, including cost of
transcription of the arbitration hearing.
Signed and filed this ____ day of May, 1993.
______________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Jeffrey G. Flagg
Attorney at Law
2716 Grand Avenue
Des Moines, IA 50312
Mr. Marvin E. Duckworth
Attorney at Law
Terrace Center, Ste. 111
2700 Grand Avenue
Des Moines, IA 50312
1108.50; 1803.1
Filed May 26, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LINDA HOLSEID,
Claimant,
vs.
File No. 954435
FIRESTONE TIRE & RUBBER CO.,
A P P E A L
Employer,
D E C I S I O N
and
CIGNA,
Insurance Carrier,
Defendants.
___________________________________________________________
1108.50; 1803.1
Deputy affirmed in part and reversed in part. Claimant did
establish an injury arising out of and in the course of her
employment by way of wrist tendonitis. Claimant did not
establish any entitlement to temporary total disability, healing
period, or permanent partial disability benefits relative to that
injury, however. The record did not show that claimant was ever
off work on account of that injury or that that injury had had
any permanent residuals by way of permanent impairment or by way
of restrictions.
Claimant did not establish that claimant's bilateral neck
and shoulder complaints, generally diagnosed as bilateral
thoracic outlet syndrome, arose out of and in the course of
claimant's employment. Occupational medicine specialist, who was
familiar with and actually observed claimant's job duties, had
opined that it was not likely that claimant's work duties either
caused or aggravated claimant's thoracic outlet conditions.
Claimant's job duties did not involve heavy lifting or lifting at
or above shoulder level. Claimant's condition developed
bilaterally, albeit consecutively, even though claimant did not
perform the same type of duties with her right and left upper
extremities and even though claimant had been placed on light
duty both prior to her first thoracic outlet surgery and
subsequent to her return to work after that surgery but prior to
her undergoing left thoracic outlet surgery.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
LINDA HOLSEID, :
:
Claimant, :
:
vs. :
: File No. 954435
FIRESTONE TIRE & RUBBER :
COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CIGNA INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
This is a proceeding in arbitration brought by Linda
Holseid, claimant, against Firestone Tire and Rubber
Company, employer, and CIGNA, insurance carrier, to recover
benefits under the Iowa Workers' Compensation Act as a
result of an injury sustained on March 27, 1989. This
matter came on for hearing before the undersigned deputy
industrial commissioner on April 7, 1991 in Des Moines,
Iowa. The record was considered fully submitted at the
close of the hearing. The claimant was present and
testified. Also present and testifying was Mark Barkley.
The documentary evidence identified in the record consists
of joint exhibits 1-24.
issues
Pursuant to the prehearing report and order dated April
7, 1992, the parties presented the following issues for
resolution:
1. Whether claimant sustained an injury on March 27,
1989, which arose out of and in the course of employment
with employer;
2. Whether the alleged injury is a cause of temporary
and permanent disability;
3. The extent of entitlement to weekly compensation
for temporary total disability or healing period benefits;
4. The extent of entitlement to weekly compensation
for permanent disability;
5. The type of permanent disability and the
commencement date, if any; and,
Page 2
6. Claimant's entitlement to medical expenses under
Iowa Code section 85.27.
findings of fact
The undersigned has carefully considered all testimony
given at the hearing, arguments made, exhibits contained in
the exhibits herein, and makes the following findings:
Claimant commenced her employment at Firestone on March
27, 1989. A pre-employment physical examination was within
normal limits. She was assigned to work in the bead
building area where she worked until October 1989. At that
time she was placed on light duty due to an onset of
bilateral progressive pain, numbness and tingling in her
upper extremities. (Exhibits 5 & 14).
While on light duty, claimant performed various odd
jobs including wrapping wire and sweeping floors. Despite
light duty work, her symptoms persisted. On October 31,
1989, James Blessman, M.D., company doctor, decided to refer
her to Arnis B. Grundberg, M.D., orthopedist, for further
evaluation.
Dr. Grundberg examined claimant on November 3, 1989.
Her complaints were referable primarily to right upper
extremity pain and numbness. Dr. Grundberg ordered an EMG
on December 1, 1989. This revealed a right cubital tunnel
syndrome and a C-7 radiculopathy. This was followed by an
MRI evaluation on December 8, 1989, which was within normal
limits. Dr. Grundberg's impression was right carpal tunnel
syndrome, despite normal EMG, and right cubital tunnel
syndrome. (Ex. 12).
Dr. Grundberg recommended surgical intervention but
claimant requested a second opinion, specifically a
neurological assessment. Dr. Blessman referred claimant to
Patrick D. Reibold, M.D., neurologist. She was seen in the
Neurology Clinic at Methodist Hospital on December 20, 1989.
She presented with complaints of right arm pain and weakness
throughout the entire hand with episodic numbness. Repeat
EMG's and nerve conduction velocities were performed and no
significant abnormality found. Dr. Reibold attributed
claimant's right upper extremity pain to overuse or
repetitive motion syndrome. He found no overt evidence of
neurologic dysfunction or cervical radiculopathy. He
concluded that claimant was not a surgical candidate and
recommended that she refrain from performing manual labor
which requires repetitive motions of her right upper
extremity. He suggested a job change. (Ex. 10).
On January 3, 1990, claimant saw her family physician,
E. L. Danielson, M.D., for treatment of a respiratory
infection. She expressed some confusion regarding various
opinions from several specialists as to the etiology of her
cervical and upper extremity problems. Dr. Danielson
indicated that there was enough discrepancy between
assessments and EMG interpretation to warrant a third
opinion. He recommended that she be evaluated by an
orthopedist. (Ex. 7).
Page 3
On February 13, 1990, claimant was seen by Rodney E.
Johnson, M.D., orthopedist. Claimant presented to Dr.
Johnson with right arm pain and paresthesia. Dr. Johnson
indicated that she had an extensor tendonitis as well as a
thoracic outlet complaint. He referred her to Robert
Thompson, M.D., for further evaluation. (Ex. 6). Dr.
Thompson found no particular nerve entrapment to explain a
thoracic outlet syndrome. (Ex. 9, p. 4). Claimant returned
to Dr. Danielson and he indicated that the Roos test seemed
strikingly positive, implying the presence of thoracic
outlet syndrome. (Ex. 7, p. 4). She returned to Dr.
Grundberg on March 13, 1990, and he diagnosed right cubital
tunnel syndrome. He recommended light duty rather than
surgical therapy. (Ex. 12, p. 3). On March 20, 1990,
claimant returned to Dr. Thompson for a re-evaluation. He
found her symptoms very difficult to sort out. The Roos
test was performed and a very mild case of thoracic outlet
syndrome was diagnosed. He reported that, "...if we were
going to explain all of her symptomatology on the basis of
thoracic outlet her Roos test should have been strongly
positive almost immediately during the exam and this is not
the case." He recommended a course of physical therapy.
(Ex. 9, pp. 1-2).
On April 23, 1990, claimant presented to Dr. Danielson
with cyanotic hands, very similar to Raynaud's, and a
positive Roos test. He felt that she had thoracic outlet
and referred her to Walter J. Riley, M.D. (Ex. 7, p. 4).
Claimant was seen by Dr. Riley on April 23, 1990. He
ordered a venogram of the upper extremities which was
performed on April 24, 1990. (Ex. 8). The venogram
revealed some compression on the left side at the thoracic
outlet. (Ex. 3, p. 13).
Claimant was admitted to Iowa Lutheran Hospital by Dr.
Riley on May 2, 1990. On May 3, 1990, he performed a first
rib resection. (Ex. 3). On May 7, 1990, Dr. Danielson
reported that claimant had a remarkable result from surgery
with complete resolution of the pain, discomfort and
Raynaud's type phenomena. (Ex. 7, p. 6).
Claimant saw Dr. Johnson on July 17, 1990 for a
follow-up evaluation. At this time, he recommended a work
hardening program. On August 28, 1990, he reported that he
spoke with claimant's physical therapist and it was felt
that she had reached maximum medical improvement and would
not benefit from any further therapy. Permanent
restrictions against frequent lifting of more than 20 pounds
and occasional lifting of 50 pounds were recommended. (Ex.
6, p. 7). On August 29, 1990, Dr. Blessman stated that
claimant could return to light duty with a 30 pound lifting
restriction and no work above shoulder level. (Ex. 5, p.
4).
On September 19, 1990, claimant saw Dr. Blessman and
presented with complaints of left upper extremity problems.
He advised her to see Dr. Johnson for further evaluation.
(Ex. 5, p. 4). Claimant then saw Dr. Johnson on September
Page 4
25, 1990. He recommended conservative therapy at this time.
(Ex. 6, p. 5).
At the request of Dr. Johnson, claimant was referred to
Thomas W. Bower, L.P.T., for an impairment rating on
November 1, 1990. Claimant's complaints were referable to
right shoulder pain after lifting between 30-40 pounds and
persistent numbness over the last two fingers with
repetitive pulling on wire. On examination, Mr. Bower noted
full range of motion of the right and left shoulder. It was
his opinion that claimant sustained a nine percent
impairment to the whole body as a result of the thoracic
outlet problem. (Ex. 4, pp. 3-4).
Claimant's left extremity symptoms became progressively
more severe. On April 4, 1991, Dr. Danielson admitted
claimant to Iowa Lutheran Hospital for pain, numbness,
tingling with bluish color changes in her left hand and arm.
He reported a 2-1/2 year history of bilateral thoracic
outlet syndrome. On April 4, 1991, Dr. Riley performed
resection of the left first rib. (Ex. 3, pp.1-5).
Subsequent to surgery, claimant underwent physical
therapy with Tom Bower. Dr. Danielson released claimant for
light duty effective July 16, 1991. He imposed restrictions
of no repetitive use of the arms above the head or lifting
in excess of 30 pounds with outstretched arms. (Ex. 7).
On July 18, 1991, claimant was notified by employer
that she would be laid off, in line with Plant Seniority,
effective July 29, 1991. (Ex. 18, p. 66).
On October 14, 1991, claimant was seen by Thomas Bower
for an impairment rating. Claimant reported right shoulder
pain and persistent numbness over the last two fingers as
well as left hand numbness. A physical examination revealed
full range of motion of both shoulders. Based on claimant's
clinical symptoms and knowing that thoracic outlet typically
compromises the lower trunk of the brachial plexus, Mr.
Bower concluded that claimant has sustained an overall 17
percent permanent impairment. (Ex. 4, pp. 1-2).
Claimant was referred by insurance carrier to Peter D.
Wirtz, M.D., orthopedist, for evaluation on February 17,
1992. On examination, Dr. Wirtz found stiffness in the
right shoulder rotator cuff. On February 25, 1992, Dr.
Wirtz related the right shoulder stiffness to surgery
performed on the right shoulder. He gave claimant an eight
percent impairment of the right upper extremity. He
explained that the loss of motion in the right shoulder
related to the area distal to the glenohumeral joint. He
further explained that, "The shoulder restrictions would
relate to side to side motion, pushing and pulling
activities, lifting activities and over-shoulder-height
activities of the right upper extremity beyond her
physiologic strength and dexterity." (Ex. 19).
conclusions of law
Claimant has the burden of proving by a preponderance
Page 5
of the evidence that she received an injury on March 27,
1989, which arose out of and in the course of her
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904,
908 (Iowa 1976); Musselman v. Central Telephone Co., 154
N.W.2d 128, 130 (Iowa 1967). The words "arising out of"
have been interpreted to refer to the cause and origin of
the injury. McClure v. Union County, 188 N.W.2d 283, 287
(Iowa 1971); Crowe v. DeSoto Consolidated School District,
68 N.W.2d 63, 65 (Iowa 1955). The words "in the course of"
refer to the time, place and circumstances of the injury.
McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. 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 the employee is doing work assigned
by the employer or something incidental to it. Cedar Rapids
Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa
1979), McClure 188 N.W.2d at 287; Musselman, 154 N.W.2d at
130.
The Supreme Court has defined a personal injury for the
purposes of workers' compensation cases. Almquist v.
Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this
case the Court found that a personal injury, is an injury to
the body, the impairment of health, or a disease, not
excluded by the Workers Compensation 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. The injury to
the human body 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.
The Almquist Court further observed that while a
personal injury does not include an occupational disease
under the Workers' Compensation Act, yet an injury to the
health may be a personal injury. A personal injury includes
a disease resulting from an injury. However, the result of
changes in the human body incident to the general processes
of nature do not amount to a personal injury. This is true,
even though natural change may come about because the life
has been devoted to labor and hard work. Results of those
natural changes do 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.
The Supreme Court has also recognized that a cumulative
injury may occur over a period of time. The injury in such
cases occurs when, because of pain or physical disability,
the claimant is compelled to leave work. McKeever Custom
Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985).
Moreover, claimant's last employer becomes liable for the
cumulative injury, even if the incidents that lead to the
ultimate injury do not occur while a claimant is employed
with the last employer. McKeever, 379 N.W.2d at 376; See
also, Doerfer Division of CCA v. Nicol, 359 N.W.2d 428,
434-35 (Iowa 1984).
Page 6
The evidence in this case clearly indicates that
claimant started at Firestone on March 28, 1989 and was
placed in the bead building department. This work required
repetitive use of her upper extremities. By May of 1989,
she began having progressive pain, numbness and tingling in
her arms, the right greater than the left. Dr. Blessman,
the company physician, diagnosed tendonitis. She was placed
on light duty in October 1989. (Ex. 5, p. 9). At that
time, it was determined that she was unable to perform
repetitive grasping or lifting with her right hand. Dr.
Blessman referred her to Dr. Grundberg in December 1989 and
he recommended surgery on the right wrist and elbow. A
second opinion was sought from Dr. Reibold, a neurologist on
December 20, 1989. He indicated that her symptoms were due
to overuse or repetitive motion syndrome. (Ex. 10, p. 3).
In January 1990, she was put on permanent restrictions from
repetitive grasping and lifting more than 15 pounds with her
right arm. In February 1990, she pursued conservative
physical therapy but her condition did not improve. (Ex. 5,
p. 6). On her own, she went to see Dr. Johnson. He felt
that she had developed thoracic outlet syndrome and extensor
tendonitis as a result of the work activity she had
performed with employer. (Ex. 6, p. 8). Dr. Johnson
referred her to Dr. Thompson. He felt she did not have
thoracic outlet syndrome. (Ex. 9, p. 4). She was continued
on physical restrictions at work. By April 26, 1990, she
reported to Dr. Blessman that she was having similar
problems with her left arm. This had developed despite the
fact that she was on light duty. She was restricted from
repetitive grasping or reaching with either arm. (Ex. 5, p.
5). Claimant conferred with Dr. Danielson, her family
physician, and he diagnosed bilateral thoracic outlet
syndrome and asked Dr. Riley to see her. Vascular studies
showed very significant compression of the vessels
compatible with thoracic outlet syndrome and she underwent
first rib resection on the right in May 1990 and on the left
in April 1991. Dr. Danielson felt that her symptoms were
aggravated by her employment at Firestone. (Ex. 7, p. 5).
Dr. Blessman testified in a deposition, that one cause of
thoracic outlet syndrome is repetitive use. (Ex. 1, p. 10).
After carefully considering the total evidence in this
case, the undersigned concludes that claimant sustained a
simultaneous bilateral thoracic outlet cumulative injury,
which arose out of and in the course of her employment with
employer. Prior to working for Firestone, claimant was
asymptomatic. As a result of repetitive pulling and hand
manipulations, claimant eventually developed symptoms in her
wrists, elbows, shoulders and neck. These symptoms resulted
from the nature of claimant's work activity and gradually
and progressively developed. The fact that physicians
disagree on claimant's diagnosis is irrelevant to the issues
in this case. The fact that there is dispute among
physicians regarding appropriate treatment for claimant's
symptoms is also irrelevant. What is relevant is the fact
that claimant was asymptomatic prior to commencing
employment; that her injury occurred while working for
employer; and resulted from the type of work she performed.
Claimant has met her burden of proof in this regard.
Page 7
Since claimant has suffered an injury, the next
question to be resolved is whether the injury has caused a
permanent disability. The claimant has the burden of
proving by a preponderance of the evidence that the injury
of April 28, 1990, is causally related to the disability on
which she now bases her claim. Bodish v. Fischer, Inc., 133
N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18
N.W.2d 607, 613-14 (Iowa 1945). A possibility if
insufficient; a probability is necessary. Burt v. John
Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa
1955). The question of causal connection is essentially
within the domain of expert testimony. Bradshaw v. Iowa
Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert
medical evidence must be considered with all other evidence
introduced bearing on the causal connection. Burt, 73
N.W.2d at 738. The opinion of the experts need not be
couched in definite, positive or unequivocal language.
Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).
Moreover, the expert opinion may be accepted or rejected, in
whole or in part, by the trier of fact. Sondag, 220 N.W.2d
at 907. Finally, the weight to be given to such an opinion
is for the finder of fact, and that may be affected by the
completeness of the premise given the expert and other
material circumstances. Bodish, 133 N.W.2d at 870;
Musselman, 154 N.W.2d at 133. The Supreme Court has also
observed that greater deference is ordinarily accorded
expert testimony where the opinion necessarily rests on
medical expertise. Sondag, 220 N.W.2d at 907.
Physicians who have treated/examined claimant have
related her symptoms to the repetitive nature of her job
activities. Claimant's bilateral injury required surgical
intervention with resultant physical restrictions. Dr.
Danielson prohibited her from lifting more than 30 pounds
and indicated she should not work above shoulder level. Dr.
Blessman concurred with these restrictions. (Ex. 5, p. 3).
Claimant has been given a permanent impairment rating by her
physical therapist of 17 percent. Dr. Wirtz, for some
reason, only rated claimant's right upper extremity. He
indicated that she has loss of motion in the area distal to
the glenohumeral joint. He gave her an eight percent
permanent impairment rating taking into consideration her
shoulder restrictions relating to side to side motion,
pushing and pulling activities, lifting activities and
over-shoulder-height activities of the right upper
extremity. (Ex. 19). Claimant has satisfied her burden of
proof in demonstrating that she has suffered a permanent
work related disability.
The next issue to be determined is the extent of
claimant's disability.
The evidence clearly shows that claimant's bilateral
thoracic outlet syndrome extended beyond the arm to the body
as a whole. Although Mr. Bower, on October 14, 1991, found
full range of motion of both shoulders, Dr. Wirtz, an
orthopedist, found otherwise. He noted that claimant had
Page 8
loss of right shoulder motion related to the surgical
conditions to her shoulder in the area distal to the
glenohumeral joint. She has been restricted throughout in
engaging in activities over the shoulder. She has
persistent pain in both shoulders with activity. Claimant's
pain is substantiated by the clinical findings in the
record. Claimant has demonstrated that her impairment
extends into the body as a whole.
A shoulder injury is an injury to the body as a whole
if the injury affects the "body side" of the shoulder joint.
Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986). The
agency has typically compensated shoulder injuries
industrially on the basis that such injuries involve
disability to the body as a whole. Streeter v. Iowa Meat
Processing Co., file numbers 730461 and 809945 (App. Decn.,
March 31, 1989); Nazarenus v. Oscar Mayer & Co., II Iowa
Industrial Commissioner Report 281 (1982); Houser v. A M
Cohron & Sons, file number 851752 (Ar. Decn., July 18,
1990). Noting in particular that the surgical procedure
undertaken by Dr. Wirtz invaded the body side of the joint
(the acromion and deltoid were affected), it is held that
claimant's injury must be compensated industrially.
Industrial disability was defined in Diederich v.
Tri-City Railway Co., 258 N.W.2d 899, 902 (Iowa 1935) as
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 person.
The essence of an earning capacity inquiry then, is not how
much has the claimant been functionally impaired, but
whether that impairment, in combination with the claimant's
age, education, work experience, pre and post injury wages,
motivation and ability to get a job within her restrictions,
if any restrictions have been imposed, have caused a loss of
earning capacity. Olson v. Goodyear Service Stores, 125
N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway
Co., 258 N.W. 899, 902 (Iowa 1935); Peterson v. Truck Haven
Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658
(1985); Christensen v. Hagen, Inc., 1 Iowa Industrial Comm'r
Dec. No. 3, 529, 534-535 (1985).
There are no weighting guidelines that indicate how
each of the factors are to be considered. There is no
equation which can be applied and then calculated to
determine the degree of industrial disability to the body as
a whole. It therefore becomes necessary for the deputy or
commissioner to draw upon prior experience and general and
specialized knowledge to make a finding with regard to the
degree of industrial disability. See, Peterson, 1 Iowa
Industrial Commissioner Decisions No. 3, at 658;
Christening, 1 Iowa Industrial Commissioner Decisions No.
3, at 535.
Claimant was born on June 13, 1955, and is currently 36
years old. The fact that claimant was disabled in the peak
earning years of her employment career makes her disability
worse than it would be for a younger or older individual.
Page 9
McCoy v. Donaldson Company, Inc., IAWC Decisions of the
Iowa Industrial Commissioner 400 (1989).
Claimant graduated from high school in 1973 and has
performed unskilled entry-level jobs during the course of
her working career from 1972 through 1989. She has been
enrolled at Des Moines Area Community College in the
commercial art program since September 1991 and is expected
to graduate in the Spring of 1994. She has been unemployed
since being laid off from Firestone on July 29, 1991, and
has made no attempt to bind work. She receives $70 per week
in child support for her daughter and $194 per week in
unemployment compensation benefits. She shares her home
with Mark Barkley and they split household expenses 50-50.
Claimant's wage at the time of her injury was $442.79 per
week. Claimant's injury has resulted in a loss of earnings
and earning capacity.
Based upon the foregoing factors, all of the facts used
to determine industrial disability, and employing agency
expertise, it is determined that claimant sustained a 40
percent industrial disability and is entitled to 200 weeks
of permanent partial disability benefits commencing on July
16, 1991, when Dr. Danielson released her to return to work
activity. Claimant is also entitled to healing period
benefits from April 28, 1990 (when she was taken off work in
preparation for surgery) through August 28, 1990 and again
from April 4, 1991 through July 15, 1991 when she was
released to return to work after recuperating from her
second surgery.
Section 85.34(1), Code of Iowa, provides that healing
period benefits are payable to an injured worker who has
suffered permanent partial disability until (1) he has
returned to work; (2) is medically capable of returning to
substantially similar employment or (3) has achieved maximum
medical recovery. The industrial commissioner has
recognized that healing period benefits can be interrupted
or intermittent. Willis v. Lehigh Portland Cement Company,
Vol. 2-1, State of Iowa Industrial Commissioner Decisions,
485 (1948).
Finally, claimant is entitled to be reimbursed for
out-of-pocket medical expenses incurred at Iowa Lutheran
Hospital and physical therapy consultants (Ex. 23 & 24).
The employer has the right to chose the provider of care,
except where the employer has denied liability for the
injury. Section 85.27. Claimant is not entitled to
reimbursement for medical bills unless claimant shows there
were paid from claimant's funds. Caylor v. Employers Mutual
Casualty Co., 337 N.W.2d 890 (Iowa Ct. App. 1983).
order
THEREFORE, it is ordered:
That defendants pay to claimant intermittent healing
period benefits from April 28, 1990 through August 28, 1990
and from April 4, 1991 through July 15, 1991 at the rate of
two hundred eighty-four and 20/100 dollars ($284.20) per
Page 10
week.
That defendants pay to claimant two hundred (200) weeks
of permanent partial disability benefits at the rate of two
hundred eighty-four and 20/100 dollars ($284.20).
That defendants reimburse claimant for out-of-pocket
medical expenses incurred as set out in exhibits 23 and 24.
That defendants receive credit under Iowa Code section
85.38(2) for the net amount of previous payments made under
a nonoccupational group plan. Beller v. Iowa State
Penitentiary, (Appeal Decision, File number 799491, Filed
July 10, 1991).
That defendants receive credit for any benefits
previously paid.
That defendants pay accrued amounts in a lump sum.
That defendants pay interest pursuant to Iowa Code
section 85.30.
That defendants pay all costs pursuant to rule 343 IAC
4.33.
That defendants file claim activity reports as required
the agency.
Signed and filed this ____ day of April, 1992.
________________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Jeffrey G Flagg
Attorney at Law
2716 Grand Avenue
Des Moines Iowa 50312
Mr Marvin E Duckworth
Attorney at Law
Terrace Center Ste 111
2700 Grand Avenue
Des Moines Iowa 50312
5-1802 - 5-1803
` Filed April 14, 1992
JEAN M. INGRASSIA
before the iowa industrial commissioner
____________________________________________________________
:
LINDA HOLSEID, :
:
Claimant, :
:
vs. :
: File No. 954435
FIRESTONE TIRE & RUBBER :
COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CIGNA INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1802
Claimant found entitled to healing period benefits for a
simulataneous bilateral thoracic outlet injury requiring
right rib resection on May 2, 1990 and left rib resection on
April 4, 1991. Healing period benefits were awarded from
April 28, 1990 through August 28, 1990 and from April 4,
1991 through July 15, 1991.
5-1803
Claimant found entitled to 40 percent industrial disability
as a result of bilateral thoracic outlet syndrome effecting
the use of her upper extremities. Claimant's injury found
to extend into the body as a whole as the result of limited
range of motion of her right shoulder and restrictions of
over-head lifting.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
MARSHALL TRELEVEN, :
:
Claimant, :
:
vs. :
: File No. 954438
HY-VEE FOOD STORES, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL CASUALTY CO.,:
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
statement of the case
This is a proceeding in arbitration brought by Marshall
Treleven, claimant, against Hy-Vee Food Stores, Inc.,
employer, and Employers Mutual Casualty Company, insurance
carrier, to recover benefits under the Iowa Workers'
Compensation Act as a result of an injury sustained on July
25, 1990. This matter came on for hearing before the
undersigned deputy industrial commissioner on October 31,
1991, in Des Moines, Iowa. The record was considered fully
submitted at the close of the hearing. Defendants requested
and were granted leave to submit a brief by November 5,
1991. The record in this case consists of claimant's
testimony and testimony from Randy Evans and Donald Price.
The record also consists of joint exhibits 1-4, claimant's
exhibits A-L and defendants' exhibits I and II.
issues
Pursuant to the prehearing report and order dated
October 31, 1991, the parties have submitted the following
issues for resolution:
1. The extent of entitlement to weekly compensation
for permanent disability benefits which was stipulated to be
an industrial disability to the body as a whole; and,
2. Whether claimant is entitled to penalty benefits
under Iowa Code section 86.13.
findings of fact
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, and evidence
contained in the exhibits, and makes the following findings:
Claimant was born on February 22, 1963 and completed
the twelfth grade of school. Prior to November 1987, he
Page 2
worked as a house painter and food store night stocker. In
November 1987, he went to work for Save-U-More store which
is owned by Hy-Vee Food Stores. He started out as a night
stocker and was promoted to night stock manager, assistant
shift manager and shift manager. Currently, he is a frozen
food manager. Claimant testified he injured his back on
July 25, 1990, and employer has acknowledged liability for
this injury.
Claimant was injured on July 25, 1990, while moving the
entire bulk food department at the Save-U-More store. The
bins were very heavy and difficult to move. He moved some
of the bins with Don Price, assistant store manager, until
he was called away to do something else. He nudged a real
heavy bin by himself and in the process felt a sharp twinge
in his lower back. He continued to work alone until Don
returned and they completed the job together. Claimant
worked the entire day and complained that he was sore all
over. He did not see a physician until August 7, 1990, and
lost no time from work until August 21, 1990. The day prior
to his appointment with a physician, he was involved in a
minor automobile accident. Claimant testified that he was
not injured in the accident but suffered some damage to his
rear bumper and tailgate. Claimant filed an accident report
at the police station because no policeman came to the scene
of the accident. Claimant settled with the other driver who
was uninsured. Claimant testified that he went to see a
physician the day after his car accident because his back
symptoms from the work accident had become so severe he
could no longer tolerate the pain.
The pertinent medical evidence of record reveals that
claimant was seen by Kenneth M. Andersen, M.D., at Mercy
Medical Clinic on August 7, 1990. He presented with low
back pain extending into the pelvic region without radiation
down into the legs. He was treated conservatively and given
Naprosyn for pain. He returned to the clinic on August 20,
1990, with increased pain. He saw John C. Tapp, D.O., for
evaluation. A CT scan was scheduled the next day. The
results showed a herniated disc on the left side at L5-S1
compressing the nerve root. He was told of the results by
Dr. Tapp on August 23 and referred to William R. Boulden,
M.D., for an orthopaedic evaluation (exhibit 3, pages 1-6).
Dr. Boulden saw claimant on August 28, 1990. Dr.
Boulden reviewed the CT scan with claimant and indicated
that surgical excision was the only logical treatment
(exhibit 2, page 4).
Claimant testified that he did not return to Dr.
Boulden because the insurance carrier refused to pay for his
treatment and Dr. Boulden would not work without an
assurance of payment. Because of his persistent symptoms,
claimant sought medical treatment from Daniel J. McGuire,
M.D., on September 13, 1990. A physical examination
revealed an S-1 radiculopathy on the left, which correlated
with the herniated disc seen on his CT scan. On September
25, 1990, Dr. McGuire performed a partial discectomy at
L5-S1 on the left side. One week after surgery, claimant
had no leg pain and was walking three miles per day. On
Page 3
October 30, 1990, Dr. McGuire referred claimant to Iowa
Methodist Low Back Institute for physical therapy and return
to work conditioning (exhibit 1, pages 3-5).
Claimant was seen in the physical therapy clinic for
seven sessions beginning October 30, 1990, and ending
November 7, 1990. Physical therapy notes indicate that he
demonstrated steady improvement in all aspects of his
conditioning program increasing both time and speed. He
demonstrated an ability to lift up to 55 pounds on a
repetitive basis with no discomfort. At the time of the
final evaluation, he demonstrated normal strength in
bilateral lower extremities which was an improvement of one
full grade of strength in his left lower extremity from the
initial evaluation (exhibit 4, pages 1-3).
Claimant testified that he returned to work in November
1990 because he was completely broke after being off work 11
and 1/2 weeks and had not received any workers' compensation
checks from employer/insurance company. As he became more
active at his job, he began having increasing back problems
and some leg pain. He saw Dr. McGuire on February 25, 1991,
and his progress notes indicate "I told him that if I placed
a lot of restrictions on him that he would probably be fired
from his job. If I placed a lot of restrictions on him he
would have a hard time getting a new job." (Exhibit 1, page
3).
On May 13, 1991, Dr. McGuire stated that, "Based on the
A.M.A. guidelines, he has a 10% permanent partial disability
as it relates to his abnormal disc, surgical intervention,
and residual symptoms." He further stated, "I believe he
can go and do most things. Without a doubt, short-term and
long-term he would do better with his back problem if he is
not involved with heavy manual labor, lifting heavy things
repeatedly in the 100-200 pound range, and doing repeated
twisting and bending." (Exhibit 1, pages 1-2).
conclusions of law
The record clearly demonstrates that claimant has a
permanent disability which is causally related to his
injury. Claimant has clearly shown by a preponderance of
the evidence that he sustained an industrial disability as a
result of his July 25, 1990, back injury.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125
N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285,
110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
Page 4
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State
of Iowa Industrial Commissioner Decisions 529 (App. March
26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3
State of Iowa Industrial Commissioner Decisions 654 (App.
February 28, 1985).
Factors to be considered when assessing industrial
disability include claimant's age, education, work
experience, impairment and work restrictions.
As previously noted, claimant is a younger individual
who was born on February 22, 1963. He graduated from high
school in 1981 and has not pursued any other educational
endeavors. He worked five years as a house painter,
stripping, priming and painting exteriors. This work was
very physical and strenuous. He also worked as a night
stocker for Dahl's Food Store where he unloaded grocery
trucks. This job required heavy lifting, frequent bending,
stooping and standing. In November 1987, he transferred
from Dahl's Foods to Save-U-More store. Initially, he was a
night stocker. He was eventually promoted to night stock
manager, assistant shift manager and shift manager. At the
time of his injury on July 25, 1990, he was a shift manager.
Page 5
In this capacity, he was responsible for the overall running
of the store, fielded complaints from customers and
employees and supervised about 100 workers. His job was
unique in that he worked days only and ordered groceries.
When he returned to work after surgery, he resumed his job
as a shift manager but was put back on day/night rotation.
Eventually, he was transferred to the frozen food department
and made manager. According to Randy Evans, store manager,
and Donald Price, assistant store manager, this transfer is
regarded as a promotion because claimant is responsible for
the profit/loss of the store and is considered a part of the
management team and participates in management meetings.
This job also has the potential for promotion up the company
ladder. Both gentlemen testified that claimant has no fear
as to job security because he is a valued employee, highly
motivated and very responsible. At the time of his injury
on July 25, 1990, claimant was earning $10.10 an hour. As
of October 31, 1991, he earns $10.65 an hour, including
medical benefits and life insurance. During his time off
work because of surgery and recuperation, he received
disability checks in the amount of $150.00 per week from the
company.
Claimant has been steadily employed now for more than
one year and has not taken any time off due to illness or
back problems. On September 25, 1990, claimant underwent a
partial discectomy at L5-S1 on the left side. By October 3,
1990, he was able to walk three miles (exhibit 1, page 4).
A physical therapy note dated October 31, 1990, indicates
that on evaluation, claimant had no complaints of discomfort
in his low back. However, he did have some weakness in his
left lower extremity and an excessive amount of muscle
tightness in the left lower extremity and trunk on range of
motion. He appeared to be somewhat deconditioned and a
program was instituted to help him in this regard. After
participating in eight physical therapy treatments at the
Low Back Institute, he demonstrated normal strength in
bilateral lower extremities. It was noted that he
demonstrated steady improvement and diligence toward
completing his conditioning program (exhibit 4). Dr.
McGuire gave him a ten percent permanent partial disability
and stated that he should not be involved with heavy manual
labor, lifting heavy things repeatedly in the 100-200 pound
range, and doing repeated twisting and bending (exhibit 1,
pages 1-2).
Because of his young age, claimant's industrial
disability is less serious than it would be for an older
worker who is injured at the peak of his earning career.
Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report
of the Industrial Commissioner 34 (App. 1979); McCoy v.
Donaldson Co., File Nos. 782670 and 805200 (App. April 28,
1989).
Claimant has a loss of earning capacity due to his back
surgery, although he has no actual loss of earnings.
Claimant is able to work 40 hours a week with overtime if he
Page 6
so desires. His job does not require lifting in excess of
30 pounds. Claimant's work history has consisted of manual
labor and supervisory duties.
Thus, after considering all of the factors of
industrial disability, it is found that the evidence in this
case supports an award of 20 percent permanent partial
disability benefits which entitles claimant to recover 100
weeks of benefits under Iowa Code section 85.34(2)(u).
The final issue to be determined is whether claimant is
entitled to penalty benefits under Iowa Code section 86.13.
This section provides, in pertinent part, as follows:
If a delay in commencement or termination of
benefits occurs without reasonable or probable
cause or excuse, the industrial commissioner shall
award benefits in addition to those benefits
payable under this chapter, or chapter 85, 85A, or
85B, up to fifty percent of the amount of benefits
that were unreasonably delayed or denied.
Under section 86.13, a penalty is not awarded for
nonpayment of medical expenses. Penalty benefits are only
applicable to weekly compensation benefits. Zahn v. Iowa
State Men's Reformatory, IV Iowa Industrial Commissioner
Report 409, 410 (1983). If it is alleged that an employer
wrongfully withheld weekly compensation benefits, claimant
must establish that the benefits were withheld unreasonably
in order for claimant to receive additional benefits under
section 86.13. Curtis v. Swift Indep. Packing, IV Iowa
Industrial Commissioner Report 88, 93 (1984).
It is reasonable for an employer to withhold benefits
when the employer was not alerted to occurrences which would
notify a reasonable person that benefits would be due or
when there was no work time lost. McCormack v. Sunsprout, I
Iowa Industrial Commissioner Decisions No. 1, 142, 144
(1984). However, if there are no contradictions in the
claimant's claim, then a penalty will be assessed. Willis
v. Ruan Transport Corp., IV Iowa Industrial Commissioner
Report 395, 396 (1984) (The doctors' reports and the
claimant's statements regarding the injury and its
connection to an incident at work are consistent.
Withholding benefits in this instance was found to be
unreasonable and a penalty was assessed to the healing
period benefits. Employer was given the benefit of the
doubt as to whether the injury caused a permanent impairment
due to claimant's preexisting back complaints.).
Where a claim is "fairly debatable," defendants are
entitled to argue their position, whether the debate
concerns a matter of fact or law. The agency has adopted
the analysis that the claimant must show the absence of a
reasonable basis for denying benefits of a policy and
defendants' knowledge or reckless disregard of the lack of a
reasonable basis for denying the claim. Dodd v. Oscar Mayer
Foods Corp., File No. 724378 (Penalty Decn., April 27,
1989).
Page 7
Generally, penalty benefits are not awarded where there
is a legitimate dispute on either causation or the extent of
impairment. Just v. HyGrade Food Products Corp., IV Iowa
Industrial Commissioner Report 190 (App. Decn. 1984).
Claimant testified that he was injured on July 25, 1990.
However, he did not communicate to the assistant store
manager or store manager any physical problems except that
he was sore after moving some heavy bins. He reported to
work every day thereafter and sought no medical treatment
until August 7, 1990, which just happened to be the day
after he was involved in an automobile accident. When
claimant was found to have a herniated disc on August 21,
1990, defendants legitimately disputed the cause of his
impairment in view of his automobile accident and failure to
report an injury to his supervisor. In investigating the
claim, contact was made with Dr. Boulden. On February 22,
1991, he stated, "At this point in time, it is difficult to
say which one of these has caused the rupturing of the
disc." (Exhibit 2, page 3). Dr. McGuire stated on May 13,
1991, that, "I guess we will never know the source of his
initial injury." (Exhibit 1, page 2). Finally, on June 20,
1991, Dr. Boulden stated that, "It would be my medical
opinion that the lifting injury was the more responsible
injury in causing the ruptured disc." (Exhibit 2, page 1).
In August 1991, defendants admitted liability and have,
since that time, paid all of claimant's medical expenses,
healing period benefits and ten percent permanent partial
disability benefits based on Dr. McGuire's impairment
rating. Consequently, it is determined that claimant is not
entitled to penalty benefits under Iowa Code section
86.13(4).
order
THEREFORE, IT IS ORDERED:
That defendants pay to claimant one hundred (100) weeks
of permanent partial disability benefits at the rate of two
hundred eighty-three and 33/100 dollars ($283.33) per week
commencing November 8, 1990.
That defendants receive credit for any benefits
previously paid.
That defendants pay accrued amounts in a lump sum.
That defendants pay the costs of this action pursuant
to rule 343 IAC 4.33.
That defendants pay interest pursuant to Iowa Code
section 85.30.
That defendants file claim activity reports as required
by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ______ day of ____________, 1991.
Page 8
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Glenn Goodwin
Attorney at Law
4th Floor, Equitable Building
Des Moines, Iowa 50309
Mr. Jeffrey M. Margolin
Attorney at Law
Suite 111, Terrace Center
2700 Grand Avenue
Des Moines, Iowa 50312
Page 1
5-1803; 4000.2
Filed November 18, 1991
JEAN M. INGRASSIA
before the iowa industrial commissioner
____________________________________________________________
:
MARSHALL TRELEVEN, :
:
Claimant, :
:
vs. :
: File No. 954438
HY-VEE FOOD STORES, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL CASUALTY CO.,:
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
5-1803
Claimant is 28 years old and completed the twelfth
grade of school. He worked five years as an exterior house
painter. He worked two and one-half years at Dahl's Foods
as a night stocker. He has worked since November 1987 at
Save-U-More store and has been promoted from night stocker
to night stock manager, assistant shift manager and shift
manager. At the time of his injury on July 25, 1990, he was
a shift manager and earned $10.10 an hour. On August 21,
1990, he was diagnosed with a herniated disc. A partial
discectomy at L5-S1 on the left side was performed on
September 25, 1990. He returned to work in November 1990 at
his former job. He was then transferred to the frozen food
department as department manager. This job required no
lifting in excess of 30 pounds. Claimant had been released
to return to work with minimal restrictions including no
involvement in heavy manual labor, lifting repeatedly in the
100-200 pound range, and doing repeated twisting and
bending. His treating surgeon gave him a ten percent
permanent partial disability rating. At the time of the
hearing, claimant was earning $10.65 an hour. He is a
valued employee, highly motivated and has promotion
potential. Claimant was found to be 20 percent industrially
disabled.
4000.2
Claimant requested penalty benefits under Iowa Code
section 86.13. Generally, penalty benefits are not awarded
Page 2
where there is a legitimate dispute on either causation or
the extent of impairment. Just v. HyGrade Food Products
Corp., IV Iowa Industrial Commissioner Report 190 (App.
Decn. 1984).
Claimant lost no time from work until August 7, 1990,
when he first went for a medical assessment. This
appointment was made the day after he was also involved in
an automobile accident. Claimant's claim was in "fairly
debatable" and employer/insurance carrier had a reasonable
basis for denying his claim. Dodd v. Oscar Mayer Food
Corp., File No. 724378 (Penalty Decn., April 27, 1989).
Two physicians indicated that it is difficult to say which
incident caused claimant's ruptured disc. However, on June
20, 1991, one physician indicated that the lifting injury
was probably more responsible for claimant's disc than the
automobile accident. Defendants assumed liability of the
claim in August 1991. Consequently, penalty benefits were
denied.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
MARK DELING, :
:
Claimant, :
:
vs. :
: File No. 954443
IOWA BEEF PROCESSORS, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant. :
:
___________________________________________________________
statement of the case
This is a proceeding in arbitration brought by Mark
Deling, claimant, against IBP, the employer, and
self-insured, as defendant.
The record in this case consists of the testimony from
the claimant, John Herman, Jr., Sharon Deling, and Jeffrey
Dayton; claimant's exhibits 1 through 27; and, defendant's
exhibits A, B, F, G and H.
The matter came on for hearing before the undersigned
deputy on March 3, 1992, at Storm lake, Iowa.
issues
The parties have submitted the following issues for
resolution:
1. Whether claimant has sustained a permanent
disability due to the injury; and,
2. If claimant has sustained a permanent disability,
whether he has sustained a loss of earning capacity or
industrial disability.
findings of fact
The undersigned deputy, having heard the testimony and
having reviewed all of the evidence received, finds the
following facts:
Claimant was born on August 25, 1957. He graduated
from high school in 1976, and stated that he received below
average grades.
After graduating from high school in 1976, claimant
joined the U.S. Air Force for three months, and received an
honorable discharge.
From 1976 to 1980, claimant worked for several
employers as a general laborer.
Page 2
In 1980, claimant went to work for Northwest Bodies in
Manson, Iowa. He earned $5 per hour and worked at the shop
for approximately five years.
In April of 1985, claimant sought and received
employment with IBP in Storm Lake, Iowa. In August 1989,
claimant was working as a floor janitor during the day
shift.
On August 10, 1989, claimant encountered some machine
problems and went to the conveyor line to contact his
supervisor. As he walked up a catwalk, he hit his head on
overhead pipes. Claimant stated that he felt pain, and
reported the incident to his supervisor. He continued
working, but subsequently went to see the plant nurse.
Claimant was sent to Scott Wulfekuhler, M.D. Claimant was
referred to Kevin Liudahl, M.D., who subsequently referred
claimant to a specialist in Omaha, David Clough, M.D., a
neurosurgeon. Claimant was treated conservatively
initially, but in November of 1989, underwent an MRI of the
neck which revealed a herniated disc at the C4-5 level, a
mild bulging of the disc at the C5-6 level, and a central
and left herniated disc at the C6-7 level. Claimant was
referred to Quintin Durward, M.D. Claimant received
physical therapy through much of November of 1989, and
stated that he was getting worse from the therapy
(Claimant's Exhibit 25, page 112).
After several more months of conservative treatment,
claimant was referred to Lyal Leibrock, M.D., of the
University of Nebraska Medical Center, for a second opinion.
It was recommended that claimant undergo an anterior C6-7
microsurgical diskectomy, cord and root decompression and
fusion, which claimant underwent on July 17, 1990 (Cl. Ex.
1, p. 37).
Claimant was off of work until October 21, 1990.
During this time, he underwent extensive physical therapy
and work hardening programs.
Claimant was released to return to work, and began by
working less than one hour per day. He was to gradually
work up to an eight hour work day.
The evidence submitted does not detail what happened
for the rest of 1990. Medical reports dated December 16,
1991, showed Michael Donohue, M.D., reviewed eight different
job possibilities at the IBP plant in Storm Lake, Iowa.
These eight positions include: Cry-O-Vac operator; membrane
skinner; skirt trim job; position side for ham chopper job;
stick hogs; scald tub tendor; tractor operator and mule
driver; and, instruments mechanic. Of the jobs listed, Dr.
Donohue indicated that only two jobs, position side for ham
chopper and the scald tub tendor job would be appropriate
for claimant and his physical condition. However, these
jobs were not available to the claimant due to his seniority
status.
Claimant then undertook vocational rehabilitation with
Page 3
the state of Iowa. He worked with Renee Barnes, a
rehabilitationist, and in January of 1992, she expressed an
opinion that claimant would be limited in job opportunities
available to him due to his physical condition.
Specifically, Ms. Barnes opined that claimant would be
unable to go back to any physical, manual labor type of job
(Cl. Ex. 27, p. 129).
Claimant also underwent a vocational evaluation at the
request of the defendant employer. In January of 1992,
Patricia Conway, a specialist with the Rehabilitation
Professionals, Inc., reported that she was of the opinion
that claimant would be able to work in the medium, light and
sedentary work categories, and suggested that claimant
explore employment as a laborer in a meat product plant;
fiber glass laminator; machine operator; and, parts clerk.
Due to claimant's restrictions of no lifting of more than 50
pounds, and no work which would require over shoulder height
work or static positioning of the neck, Ms. Conway estimated
that claimant had reduced his access to the labor market by
20 to 30 percent. Actual loss of earnings were estimated to
be between 25 and 35 percent (Cl. Ex. 26, pp. 117-124).
Currently, claimant works under the following
restrictions: permanent impairment ratings based on range
of motion tests of 10 percent to the whole person and 6
percent to the whole person; no lifting of more than 50
pounds; no pushing or pulling of more than 60 pounds on a
repetitive basis; no work above shoulder level; and, no
extreme bending of the neck either up or down (Cl. Ex. 25,
pp. 114-116).
analysis and conclusions of law
The first issue to be addressed is whether claimant has
sustained a permanent disability.
As previously discussed under the facts section of this
decision, it is clear that claimant has sustained a
permanent injury. Not only has he had to undergo surgery to
repair a herniated disc in his neck, but he also has
permanent medical restrictions which alter his activities.
As a result, it is found that claimant has sustained a
permanent injury due to the accident at IBP.
The next issue to be addressed is whether claimant has
sustained an industrial disability.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
Page 4
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
At the time of the hearing, claimant was 35 years old.
His work experience is concentrated in the heavy and manual
labor category.
Claimant has displayed a high level of motivation, and
has sought retraining and schooling in order to obtain a new
career. Currently, his efforts have been concentrated in
computer programming. Claimant has few, if any,
transferable skills, and at age 35 is essentially starting
over.
Claimant had an extensive healing period, and although
there is evidence that he suffered from some preexisting
conditions of the neck for which he was treated, the
evidence does not indicate that these conditions were severe
in nature.
The defendant employer, with input from a medical
Page 5
provider, identified two positions at the IBP plant which
would be suitable for claimant given his medical
restrictions. However, he was never offered this work, and
apparently due to his seniority status and the bid in
structure at the plant, the jobs would not be available to
claimant.
The worst element of claimant's industrial disability
is the fact that he is foreclosed from performing heavy work
and probably some medium work jobs. Many of his past
employments involved medium and heavy work. Therefore, he
is foreclosed from a rather significant portion of the
competitive labor market. Rohrberg v. Griffin Pipe Products
Co., I Iowa Industrial Report 282 (1984); Michael v.
Harrison County, Thirty-Fourth Biennial Report of the
Industrial Commissioner, 218, 220 (App. Decn., January 20,
1979.
There is evidence which states that claimant has no
earning capacity without additional training, and even with
training it will take two years for him to regain the same
earning capacity as he had at the time of the accident. It
is clear that claimant is unable to return to work for which
he suited.
After considering all of the factors, it is found that
claimant has sustained a 35 percent industrial disability.
order
THEREFORE, it is ordered:
That defendant shall pay unto claimant one hundred
seventy-five (175) weeks of permanent partial disability
benefits at the rate of two hundred fifty-one and 25/100
dollars ($251.25) per week beginning October 22, 1990.
That defendant shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly permanency benefits previously paid.
That defendant shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendant shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendant shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of March, 1992.
________________________________
Page 6
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr E W Wilcke
Attorney at Law
826 1/2 Lake St
P O Box 455
Spirit Lake IA 51360
Ms Marie L Welsh
Attorney at Law
P O Box 515
Dept #41
Dakota City NE 68731
5-1803
Filed March 23, 1992
Patricia J. Lantz
before the iowa industrial commissioner
____________________________________________________________
:
MARK DELING, :
:
Claimant, :
:
vs. :
: File No. 954443
IOWA BEEF PROCESSORS, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant. :
:
___________________________________________________________
5-1803
Claimant, 35 years of age, injured his cervical neck while
working for IBP.
Although the employer worked with the physicians to help
identify two jobs which accommodated claimant's
restrictions, the jobs were not made available to him.
Medical restrictions included 6-10% functional impairment;
no lifting of more than 50 pounds; no pushing or pulling of
more than 60 pounds; no work above shoulder level; and no
extreme bending of the neck either up or down.
Claimant awarded 35% industrial disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JULIA KAUFFMAN, :
:
Claimant, :
:
vs. :
: File No. 954452
DEPARTMENT OF EMPLOYMENT :
SERVICES, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on June 24, 1992, at Des
Moines, Iowa. This is a proceeding in arbitration wherein
claimant seeks compensation for permanent partial disability
benefits as a result of an alleged injury occurring on June
29, 1989. The record in the proceeding consists of the
testimony of the claimant, Delores Linn, and Karin Strand;
claimant's exhibits 1 and 2; and defendants' exhibit 1.
ISSUES
The issues for resolution are:
1. Whether claimant's alleged June 29, 1989 injury
arose out of and in the course of claimant's employment;
2. Whether there is a causal connection as to
claimant's temporary total disability, healing period or any
permanent disability;
3. The nature and extent of claimant's permanent
disability and entitlement to disability benefits;
4. Whether claimant timely filed her petition under
the provisions of 85.26; and,
5. Claimant's entitlemenmt to 85.27 medical benefits
(causal connection).
Page 2
FINDINGS OF FACT
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant is 55 years old and completed the tenth grade.
She took some courses at Area 11 in January 1979 to August
1979 so that she could enter the work force. These appear
to be more or less refresher courses. This program was
sponsored with manpower and she received no degree.
Claimant related her employment history from leaving
high school up until 1958, which encompassed approximately
seven years. During this time, she was working as a stocker
in a drug store, working in the sale of jewelry in a jewelry
store and working at a department store.
Claimant left the employment field to be a full-time
mother for approximately 21 years, 1958 to 1979. Claimant
then entered the work force after the Area 11 schooling and
began with the State of Iowa on September 14, 1979, with Job
Service. Her duties there were originally as a clerk typist
and required the use of a terminal-like computer.
Claimant related the nature of her work and duties up
until the time that she contends she was injured on June 29,
1989. Claimant contends she had good health on September
14, 1979, and that her attendance record was good. Claimant
has continued to work for the State of Iowa since that date.
Claimant related that in late 1987 her hands and arms
started hurting and tingling and that she had pain and was
dropping things. She sought some medical care at that time
and had certain tests which included an EMG in January 1988.
Claimant indicated she told her supervisor in January of
1988, but she did not initially file a first report.
Thereafter, her current supervisor, a Mr. Swessinger, told
her to file a first report after she had told him of her
problems. A first report was filed on September 28, 1988.
Claimant acknowledged that it is her handwriting in the
filling out of the first report. She also indicated she
never missed work before she had her hand surgery on June
29, 1989.
Claimant related the various medical treatments she had
and her understanding from some of the doctors as to her
condition. She indicated one doctor thought she had
thoracic outlet syndrome. Claimant indicated that on
September 28, 1989, upon her return to Robert F. Breedlove,
M.D., a surgeon, the doctor told her to stay off work
indefinitely. He indicated that he thought she might be
released after approximately three months. Claimant
indicated that she did go back to work around February 3,
1990, even though she indicated she was still having the
same problems she is currently having. There were no
restrictions but she restricted her activities.
Claimant had right hand carpal tunnel surgery in 1985
and this current surgery was to her left hand.
Page 3
Claimant related the work she is currently doing for
defendant employer. She indicated that she still
experiences numbness and tingling and pain. She cannot
grasp or hold articles very long due to the pain. She said
these increase with exertion. She indicated her left rib
and neck also hurt.
Claimant's attention is called to her answer to
defendants' interrogatory number 14 (Defendants' Exhibit 1,
page 45). In that interrogatory, claimant related that her
left arm began tingling and burning in December 1987 and
that she had difficulty twisting her left wrist and her arm
hurt all the way up to her neck. Claimant's attention was
also called to her answer to interrogatory number 18 in
which she indicated she was off work June 29, 1989 to
February 9, 1990, which involves 32.429 weeks. Claimant
acknowledges that she knew she had a problem in 1987 but
emphasized she did not know that it was carpal tunnel.
Claimant was then referred to defendants' exhibit 1,
page 47, in which several individuals listed therein
indicated they knew of claimant's disability as a result of
injuries which occurred during the course of her employment
and these several individuals referred to their personal
observation and statements from the claimant in 1987.
Claimant was referred to the comment of Dr. Breedlove
wherein he indicated on September 22, 1989 that claimant
indicated her headache, neck pain, bilateral shoulder pain
and left arm pain/paresthesia all apparently started in
December of 1987, when claimant was having a barium enema
(Claimant's Exhibit 1, page 10). Claimant said she could
not recall telling the doctor that but indicated her left
arm pain began in December of 1987 and that she had told the
doctor that lying on her arm to have the barium enema made
her arm worse.
Claimant did not tell James Scott Billings, D.O., of
her barium enema incident (Cl. Ex. 1, p. 16) and does not
recall whether she told Nancy Aquadro, D.O., of the barium
enema incident (Cl. Ex. 1, p. 20).
Delores Linn, from the Division of Labor, State of
Iowa, has worked for the state for 15 1/2 years. She knew
claimant when she was hired and worked with her ten years or
more as a co-worker. She described the nature of claimant's
work, which involved using both hands at the same time
repetitively. She indicated she knew claimant was having
problems and that claimant told her that her hands and
fingers were going asleep and pain was going up her arm.
She said she was with claimant when claimant told her
supervisor, Mr. Swessinger, that her hands were going to
sleep and that the doctor thought it was carpal tunnel.
This event would have occurred in or around September 1988.
She indicated that claimant never did tell her that she
experienced any left arm problem from lying on her left side
too long due to a medical examination.
Karin Strand testified that she was a co-worker of
claimant's in January 1988. She indicated claimant told her
Page 4
she was having problems with her left hand and that there
was numbness in her arm and tingling in her hand. She
indicated claimant said she had not had it too long. She
described the repetitive work claimant had to do which
involved working on a computer, etc.
The records of Robert F. Breedlove, M.D., are reflected
in claimant's exhibit 1, pages 3 through 11. These records
reflected on December 22, 1988, the doctor had the
impression that claimant had a a left carpal tunnel syndrome
with proximal radiculopathy causing the patient's pain and
pinching sensation. He also thought claimant may have a
posterior interosseous nerve syndrome. He indicated that
claimant was contacted later at a more convenient time as to
arranging any operative procedures.
The record shows claimant had subsequent visits with
the doctor with similar complaints and that on June 29,
1989, the patient underwent a left carpal tunnel release and
a right mid-finger, trigger finger release (Cl. Ex. 1, p.
5). Dr. Breedlove, who saw claimant after her surgery,
referred claimant to Scott B. Neff, M.D., for a second
opinion due to claimant's continued complaints of pain
radiating into her thumb and index finger.
On July 26, 1989, Dr. Neff indicated that claimant
definitely had symptoms consistent with radial nerve
entrapment proximally (Cl. Ex. 1, p. 8). On August 18,
1989, claimant saw Dr. Neff and was complaining of pain in
her left forearm over the radial nerve but also was feeling
worse with more pain in her neck and more pain in the left
side of her upper back and shoulder (Cl. Ex. 1, p. 9). The
doctor was concerned that some of the radicular symptoms may
be cervical in nature and he recommended a cervical CT
study.
Dr. Breedlove's notes of August 31, 1989, reflect that
claimant's CT scan of the cervical spine was positive for
bilateral stenosis at C4-5. Because of her complaints, the
doctor referred claimant to Rodney E. Johnson, M.D., for
evaluation and treatment for her cervical stenosis as he
felt a good portion of claimant's problems may be cervically
related (Cl. Ex. 1, p. 9). On September 22, 1989, claimant
was seen by Dr. Johnson. Claimant was complaining of
headaches, neck pain, bilateral shoulder pain and left arm
pain-paresthesia. The doctor's notes indicate claimant told
him these apparently started in December 1987 when she was
having a barium enema. His notes reflect that his
impression was that claimant had a degenerative disc pain in
the cervical spine at C5/C6, C4/C5 which was producing some
of the bilateral shoulder pain, intrascapular pain and
headaches. He indicated, however, that her left arm
symptoms cannot be explained by the CT scan. He did not
believe they were radicular in nature. Dr. Johnson then
said he was going to have a Dr. Matthews evaluate claimant
for thoracic outlet syndrome.
On September 28, 1989, claimant returned to Dr.
Breedlove following her evaluation with Dr. Johnson as well
as Dr. Matthews, the latter who thinks claimant has thoracic
Page 5
outlet syndrome. Dr. Breedlove indicated that Dr. Johnson
did not think claimant's problems were related to her
cervical spine at that point. Claimant indicated she did
not want to go back to work for three months and wanted to
participate in the short-term disability. She also wanted
the doctor to indicate her left hand problems related to her
work. Dr. Breedlove again indicated that he felt probably
perhaps 50 percent of claimant's necessity for carpal tunnel
was work related and that the other does not go along with
100 percent work related. He also indicated he would give
claimant three more months to be off work and at that point
he would release her to full duty. Claimant was to return
in three months for re-evaluation to return to full duty.
On February 27, 1990, Dr. Breedlove in a report
indicated he last saw claimant on September 28, 1989. He
indicated her prognosis at that time was excellent and
indicated her upper extremity symptoms were primarily
related to her cervical spine and thoracic outlet syndrome
that was diagnosed by Dr. Matthews in the fall of 1989. He
had no objective evidence at that point that claimant was
having any problems with her carpal tunnel syndrome. He
felt claimant had no functional limitations at this point
with respect to her carpal tunnel release. He again
reiterated that he thought only 50 percent of the necessity
of her carpal tunnel was work related. He had not evaluated
claimant since September of 1989 (Cl. Ex. 1, p. 12).
In a letter of March 27, 1990 to claimant's attorney,
he indicated that claimant was off work from June 29, 1989
until the end of December 1989, and that she was able to
return to full duty January 1990 (Cl. Ex. 1, p. 12).
Claimant's exhibit 1, page 14, reflects Dr. Breedlove's
opinion that claimant had a 5 percent permanent partial
impairment of her left upper extremity. In referring to
claimant's exhibit 1, page 14, which the doctor again
reiterated that only 50 percent of claimant's necessity of
surgery was work related, the undersigned believes that Dr.
Breedlove is determining 5 percent is related to any work-
related portion and that that figure would not be divided by
half as he is only referring to surgery in claimant's
exhibit 1, page 14. Claimant's exhibits 1, pages 15 and 16,
reflect, respectively, the opinion of Gaylene Lynch, D.O.,
and James Scott Billings, D.O., of the Medical Services
Southridge, that claimant has carpal tunnel syndrome which
has been documented by EMG and that is most likely secondary
to the use of hands at work. Nancy Aquadro, D.O., wrote a
similar or identical letter (Cl. Ex. 1, p. 20).
Alexander Matthews, M.D., on September 22, 1989,
reported that claimant clinically has a rather pronounced
left thoracic outlet compression syndrome and that she
should bring her weight down to 140 pounds at which time she
would become a candidate for surgical decompression of her
left thoracic outlet. Claimant weighed 210 pounds as of
that date.
On January 23, 1990, Dr. Matthews opined that "one
could consider her left thoracic outlet compression syndrome
Page 6
as causally related to the type of work she does as a
keyboard operator."
Claimant's exhibit 1, page 24, reflects an exam of
claimant on October 2, 1989, by Richard G. Kenney, D.O., who
indicated claimant's chief complaint at that time was
discovered in the left knee with weight bearing without
significant swelling. There are other reports of Dr.
Kenney. Dr. Kenney in a January 4, 1990 report refers to a
possible thoracic outlet syndrome (Cl. Ex. 1, p. 46).
Claimant's exhibit 1, page 65, is a report from Irving
Wolfe, D.O., a neurologist. In that report Dr. Wolfe
indicate on August 1, 1990, that a normal EMG nerve
conduction study of the right upper limb was interpreted as
normal and there was no EMG evidence to suggest thoracic
outlet syndrome on either the right or left side (Cl. Ex. 1,
p. 65).
The parties' exhibits are very confusing in that
claimant only has two exhibits but on claimant's exhibit 1
there are stickers referring to exhibits all the way up to
exhibit 41. The defendants use a similar procedure in which
they have only one exhibit but yet they have additional
numbered evidencing exhibits. This is not only confusing to
the deputy but is obviously confusing during the hearing.
On July 17, 1991, Dr. Wolfe, upon examination, reported
that claimant had good strength of her hands and arms
bilaterally, no atrophy noted, motor tone normal throughout
(Cl. Ex. 1, p. 73). His impression at that time was
"multilevel cervical route disease."
Douglas S. Reagan, M.D., an orthopedic surgeon, on
December 30, 1991, reflects in his notes that claimant
returned for follow-up due to a painful arm. She had had
another EMG which demonstrated active carpal tunnel syndrome
which, if indeed present, would be recurrent. He indicated
he talked to claimant about various options including the
possibility of surgery. He indicated that she would be
scheduled for a carpal and ulnar tunnel release, cubital
tunnel release and radial nerve release with or without
exploration of the lateral epicondylar area. He indicated
he would schedule this at her convenience. The record
indicates that no surgery was ever scheduled or done
pursuant to this report (Cl. ex. 1, p. 79). Dr. Reagan's
February 20, 1990, notes reflect claimant still having pain
and claimant was recommended to see another doctor for
evaluation of fibromyalgia (Cl. Ex. 1, p. 80).
On June 10, 1992, Dr. Wolfe, a neurologist, wrote a
report represented by defendants' exhibit 1. Again, this
exhibit is an example of the confusion of the defendants'
exhibits in that at the bottom it has exhibit 48 but no
chronological page number. This will therefore be
identified as defendants' exhibit 1(48). The doctor
indicated that the etiology of the carpal tunnel in regards
to a work-related component is at best an educated guess.
The doctor did indicate that since claimant was using a
computer keyboard as a work requirement, he thought that her
carpal tunnel syndrome was at least partially work related.
Page 7
He did refer to a nerve conduction study that was performed
on June 26, 1991, at Dr. Reagan's request. He indicated
this EMG nerve conduction study did give evidence compatible
with a mild to moderate right carpal tunnel syndrome. It
also suggested a possibility of a cervical radiculopathy.
The MRI of the cervical spine was performed and did note
degenerative cervical spondylolysis at C5-6 and C6-7 levels
and at the C5-6 level both disc protrusion and osteophytes
were noted projecting in the region of the right neural
foramina at the C5-C6 level. This suggested multilevel
cervical root disease in addition to her carpal tunnel
syndrome.
Defendants contend that if there was an injury it
occurred in December 1987 and therefore the statute of
limitations has expired. The evidence is clear that
symptoms first appeared and that claimant had a carpal
tunnel syndrome condition beginning in at least December
1987. Claimant missed no work until she had her surgery on
June 29, 1989. The undersigned finds that claimant incurred
a cumulative injury that was cumulative over a period
beginning in at least December 1987 and culminated under the
law to an actual cumulative injury when claimant missed work
due to her surgery. The undersigned does not believe that
there was a traumatic event or actual injury in December
1987. If defendants are correct on their position, then we
would be basically eliminating all cumulative injuries as in
a cumulative injury some symptoms must begin to occur or
usually do occur and they do not all occur at once. That is
where we get the term cumulative. This agency recognizes
cumulative injuries. The undersigned therefore finds that
claimant did incur a cumulative injury on June 29, 1989, and
this was the result of claimant's work. The majority of
evidence shows that claimant did perform certain work that
led to a carpal tunnel syndrome.
The undersigned having determined the date of injury as
June 29, 1989, this then disposes of the statute of
limitations issue as claimant's petition was filed timely.
The undersigned therefore finds that claimant incurred
an injury that arose out of and in the course of her
employment on June 29, 1989.
The next question is the nature of the injury.
Claimant contends that claimant's injury is not specifically
to a scheduled member, namely, the left upper extremity but
in fact to the body as a whole in that there is medical
evidence that claimant has a thoracic outlet syndrome. The
undersigned believes that the claimant has failed to prove
that there is a causal connection to her possible thoracic
outlet syndrome and any cumulative injury of June 29, 1989.
When a doctor refers to the thoracic outlet syndrome, they
use the word possible or could be in certain instances.
Possible is insufficient. There is also evidence and this
is brought out more clearly by the most recent report of Dr.
Wolfe on June 10, 1992 (Def. Ex. 1(48)) in which he has
previously referred to another doctor that claimant has a
Page 8
suggested multilevel cervical root disease in addition to
her right carpal tunnel syndrome. The doctor indicated
there can be multiple etiologies as to claimant's left sided
thoracic outlet syndrome as suggested by one of the doctors
that treated and evaluated the claimant. The undersigned
finds that the claimant has failed to carry her burden of
proof to show any causal connection between claimant's
possible thoracic outlet syndrome and there is no indication
that her multilevel cervical root disease was caused by or
materially aggravated by any cumulative injury. The
undersigned finds that claimant does not have a body as a
whole injury and therefore the issue as to whether claimant
has an industrial disability is now disposed of.
There has been only one impairment rating, which is
represented by a March 25, 1992 report of Dr. Breedlove, an
orthopedic surgeon (Cl. Ex. 1, p. 14), in which he opined a
5 percent permanent partial impairment of claimant's left
upper extremity. The doctor obviously was giving the
impairment rating based on claimant's carpal tunnel
syndrome. This agency has consistently ruled that, at least
in an overwhelming number of cases, a carpal tunnel is to
the hand or wrist and the wrist is part of the hand and
therefore this impairment would be to claimant's left hand.
It is not uncommon for doctors to refer to any scheduled
member on the upper left or right as an upper extremity.
The undersigned finds that claimant did incur a left carpal
tunnel syndrome injury on June 29, 1989, and that she
incurred a 5 percent permanent impairment. There is some
medical evidence that possibly there is more than a
cumulative injury that may be contributing to claimant's
carpal tunnel. There is also reference that the doctor
indicated one-half of claimant's problem with her carpal
tunnel would be work related. The undersigned believes and
finds that the greater weight of evidence would indicate
that the 5 percent was work related and that that should not
be divided in half. The undersigned is surprised that there
wasn't an impairment rating by Dr. Wolfe who was apparently
the last person to see claimant as represented by a report
of June 10, 1992 (Def. Ex. 1(48).
The parties are disputing as to claimant's healing
period. Claimant contends it was June 29, 1989 through
February 2, 1990. Defendants contend that assuming other
issues are disposed of in claimant's favor, that the healing
period at most would be June 29, 1989 through October 29,
1989. The undersigned finds that the best evidence that
would help determine claimant's healing period is claimant's
exhibit 1, page 11, in which Dr. Breedlove indicated that
approximately three months from September 28, 1989, claimant
was to be re-evaluated and returned to full duty. Dr.
Breedlove said claimant could return to full duty on the
first of January 1990. This would indicate three months
would end on December 28, 1989. The undersigned therefore
finds that claimant's healing period is from June 29, 1989
through January 1, 1990, amounting to 26.714 weeks.
Page 9
Regarding the rate, the parties agree that if the
undersigned found June 29, 1989 as the injury date, then the
rate would be $228.66.
The defendants shall pay all of claimant's medical
bills incurred as a result of this cumulative June 29, 1989
injury, including her surgery. It would also appear that
claimant may need additional surgery, as represented by the
June 19, 1992 report of Dr. Wolfe. If such additional
carpal tunnel surgery is needed, the defendants shall also
pay for that. There is possibly a dispute as to what are
claimant's medical bills or at least those unpaid as there
may have been a non-workers' compensation insurance carrier
that has paid some of claimant's medical bills. The
undersigned is not getting involved in the dispute between
insurance carriers or group and workers' compensation
coverage except to note that in no instances is the claimant
to be required to pay any of her medical bills resulting
from this injury. Therefore, if there is subrogation or any
other action taken by any non-workers' compensation group
health carrier asking for reimbursement from the claimant
for a bill that should have been paid under workers'
compensation, defendants are responsible for those bills.
Claimant is to be harmless from any liability of any bills
incurred as a result of this injury.
CONCLUSIONS OF LAW
Claimant has the burden of proving by a preponderance
of the evidence that she received an injury on June 29,
1989, which arose out of and in the course of her
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904
(Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa
352, 154 N.W.2d 128 (1967).
"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 v. Union
et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman, 261
Iowa 352, 154 N.W.2d 128.
The claimant has the burden of proving by a
preponderance of the evidence that the injury of June 29,
1989, is causally related to the disability on which she now
bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18
N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
Page 10
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154
N.W.2d 128.
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).
If a claimant contends he has industrial disability he
has the burden of proving his injury results in an ailment
extending beyond the scheduled loss. Kellogg v. Shute and
Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
Permanent partial disabilities are classified as either
scheduled or unscheduled. A specific scheduled disability
is evaluated by the functional method; the industrial method
is used to evaluate an unscheduled disability. Martin v.
Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960);
Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983);
Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa
1983).
Iowa Code section 85.34(1) provides that if an employee
has suffered a personal injury causing permanent partial
disability, the employer shall pay compensation for a
healing period from the day of the injury until (1) the
employee returns to work; or (2) it is medically indicated
that significant improvement from the injury is not
anticipated; or (3) until the employee is medically capable
of returning to substantially similar employment.
It is not necessary that claimant prove his disability
results from a sudden unexpected traumatic event. It is
sufficient to show that a disability developed gradually or
progressively from work activity over a period of time.
McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa
1985). The McKeever court also held that the date of injury
in a gradual injury case is the time when pain prevents the
employee from continuing to work. In McKeever the injury
date coincides with the time claimant was finally compelled
to give up his job. This date was then utilized in
determining rate and the timeliness of the claimant's claim
under Iowa Code section 85.26 and notice under Iowa Code
section 85.23.
It is further concluded that:
Page 11
Claimant incurred a cumulative injury that arose out of
and in the course of her employment on June 29, 1989, and
that said injury caused claimant to incur a left carpal
tunnel syndrome which resulted in a permanent impairment to
claimant of at least 5 percent to her left hand.
Claimant's work-related June 29, 1989 injury resulted
in claimant incurring a healing period beginning June 29,
1989 through January 1, 1990, amounting to 26.714 weeks.
All benefits are to be paid at the rate of $228.66.
Claimant's petition was timely filed within the two
year statute of limitations.
Claimant did not incur a body as a whole injury or an
industrial disability.
Defendants are to pay all of claimant's medical bills
incurred as a result of her cumulative work injury on June
29, 1989, and to hold claimant harmless of any medical bills
that are incurred as a result of said injury.
ORDER
THEREFORE, it is ordered:
That defendants shall pay to claimant healing period
benefits at the rate of two hundred twenty-eight and 66/100
dollars ($228.66) for the period beginning June 29, 1989
through January 1, 1990, which amounts to twenty-six point
seven one four (26.714) weeks.
That defendants shall pay unto claimant nine point five
(9.5) (5% of 190) weeks, of permanent partial disability
benefits at the rate of two hundred twenty-eight and 66/100
dollars ($228.66).
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid. Defendants have not
previously paid any healing period or permanent partial
disability benefits to the claimant.
Defendants shall pay all of claimant's medical bills
incurred as a result of this injury.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of July, 1992.
Page 12
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Robert W Pratt
Attorney at Law
6959 University Ave
Des Moines IA 50311
Mr James F. Christenson
Assistant Attorney General
Tort Claims
Hoover State Office Building
Des Moines IA 50319
5-1803; 5-1803.1; 5-2209
5-2601.10; 5-1100; 5-1108
5-1802; 5-2503
Filed July 10, 1992
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JULIA KAUFFMAN, :
:
Claimant, :
:
vs. :
: File No. 954452
DEPARTMENT OF EMPLOYMENT :
SERVICES, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803; 5-1803.1; 5-2209; 5-2601.10
Claimant awarded 5% permanent partial disability benefits
for a left carpal tunnel syndrome cumulative work injury.
Injury was a scheduled member injury and not an industrial
disability injury.
5-1100; 5-1108
Found claimant's injury arose out of and in the course of
claimant's employment and caused claimant's left carpal
tunnel syndrome and ultimate permanent impairment.
Found claimant's petition was timely filed. Time ran when
cumulative injury ripened, i.e., first missed work and not
when her first symptoms appeared.
5-1802; 5-2503
Claimant awarded healing period and medical benefits.