BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
MARIO H. RODRIGUEZ-CARBALLO, :
:
Claimant, :
:
vs. :
: File No. 957279
QUALITY WINE COMPANY, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
WAUSAU INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition
of claimant, Mario Rodriguez-Carballo, against his former
employer, Quality Wine Company, Inc., and its insurance
carrier, Wausau Insurance Company, defendants. The case was
heard on August 18, 1993 at the office of the industrial
commissioner in Des Moines, Iowa. The record consists of
the testimony of claimant. The record also consists of
exhibits numbered 1 through 61.
ISSUES
The issues for resolution are whether claimant is
entitled to any healing period or permanent partial
disability benefits.
FINDINGS OF FACT
The deputy, having heard the testimony and considered
all the evidence, finds:
Claimant is 43-years-old. He was born and educated in
Cuba. He graduated from high school. Post high school,
claimant attended agronomy school for four and one half
years. Claimant also attended x-ray technician's school in
Cuba for three years. He was a member of the Cuban military
until 1970 when he was placed in a criminals' camp by the
Castro government. While in prison claimant was forced to
work in the sugar cane fields. Claimant remained in prison
for eight months. From 1974 through 1980, claimant worked
as an x-ray technician in Cuba. Claimant has a daughter by
his first wife. The daughter resides in Spain. Claimant
had no children with his second wife.
In 1980, claimant left Cuba for political reasons. He
and his other family members were persecuted by members of
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Castro's government. Claimant traveled to Spain. He
remained there for six or seven months. From Spain,
claimant journeyed to the United States where he resided in
Los Angeles for a period of time.
Eventually, in 1984, claimant settled in Des Moines.
He married his third wife who is a French and Spanish
teacher. They now have two minor children. Claimant was
unemployed from 1980 through 1984. Claimant became a United
States citizen in September of 1987.
After arriving in Des Moines, claimant commenced
employment with Acme Printing. His duties varied. He
delivered goods, cleaned the facilities, worked in the
warehouse, and he lifted boxes of paper which weighed 40 to
50 pounds each. Claimant was compensated at the rate of
$4.00 per hour and he held this position for one year.
In 1985, claimant left his employ with Acme for a
position with Economy Forms. Claimant was hired to operate
equipment in the plant. He was responsible for feeding 30
to 50 pounds of steel into a machine which was operated by
robotics. He earned $8.00 per hour. Claimant terminated
his employment in 1987 in order to open his own retail
liquor store.
Claimant operated his own liquor business until
December 31, 1988. He was forced to close his enterprise
for financial reasons. Claimant testified he filed
bankruptcy as a result of his inability to compete with
larger retail establishments.
In July of 1989, claimant began working for Quality
Wine Company. Miriam Howuer hired claimant to work as a
material handler in a warehouse. His duties included
tagging bottles of wine, putting bottles onto a conveyor
belt, and lifting cases of liquor which weighed from 30 to
50 pounds.
Claimant earned $8.00 to $8.50 per hour. After several
months, claimant was laid off from work. He received his
unemployment insurance benefits in May of 1990.
His employer called claimant back to work in August of
1990. On the day after he returned to work, claimant
sustained a work-related injury to his low back. Claimant
testified he was lifting a case of wine from a pallet and
placing the case onto a conveyor belt. While he was lifting
the case, he twisted his body to the left and he felt very
sharp pains on both sides of his back. Claimant testified
there were two co-employees who were witnesses to the work
injury.
Claimant continued to work despite the pain he was
encountering. After a period of time, claimant reported to
the front office where he requested the opinion of a medical
doctor. Ms. Sue Laendhr referred claimant to Anthony
Sciorrotta, M.D. Dr. Sciorrotta prescribed muscle relaxers,
pain pills, physical therapy, hot baths, and ultra-sound.
Dr. Sciorrotta opined that: "He, in fact, has a L5 S1
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disprotrusion [sic] and a mild degree of L5 S1 degeneration
for age...." (Exhibit page 7)
The conservative treatment did not alleviate claimant's
pain and he returned to Dr. Sciorrotta who, in turn,
referred claimant to Kirk Green, M.D. Dr. Green also
prescribed conservative therapy after he had ordered x-rays
and an MRI. Claimant testified that the relief which he had
received as a result of Dr. Green's treatment was only
temporary in nature and claimant testified he experienced
severe pain in his back, down his left leg, and into his
left foot and toes.
Claimant obtained a second opinion from Santiago
Garcia, M.D. Dr. Garcia is claimant's personal physician.
The physician diagnosed claimant as having "[l]umbosacral
strain."
Epidural injections were attempted but they did not
result in relieving claimant's pain. In November of 1990,
Dr. Green opined the following relative to claimant's course
of treatment:
IMPRESSION:
Low back pain, secondary to degenerative disc
disease, unimproved with treatment to date.
RECOMMENDATIONS:
At this point I have essentially exhausted my
treatment options. Discussed the option of
bracing as a last resort. Have recommended
referral to the physiatrist for ongoing treatment
in hopes they can have better success at his
treatment than I did. He will follow up prn.
(Ex. p. 26)
One month later, Dr. Green's notes for December 10,
1990 reflected the subsequent note: "[P]er work comp
carrier, [t]hey will not authorize referral to Dr.
DeGravelle's at this time. w/c Will contact us if wish to
procede [sic] c referral.
Several months later, Dr. Green's notes indicated:
Mr. Rodriguez apparently was not authorized for
our recommend referral to Dr. DeGravelles in
November of 1990. We've been contacted requesting
an impairment rating. It would be my impression
based on the AMA guidelines that Mr. Rodriguez
indeed has a permanent impairment and it would be
my opinion that rating would be 8% of the whole
body.
(Ex. p. 27)
Claimant was also examined by William F. Boulden, M.D.,
another orthopedic specialist. In his report of December 5,
1990, Dr. Boulden opined:
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[R]eviewed his MRI and it does not show a
herniated disc. There is degenerative bulging
disc in the mid-line that is not causing any type
of neural impingement.
I feel that most of his pain is mechanical in
nature with lack of good rehabilitation. The
patient has gotten into a situation that he feels
there is a lot of problems with his back, and he
is going to be a tough patient to crack, in the
fact that we have to convince him that he needs to
be rehabilitated and we will have to work hard
with him.
We will start him on the program and I will see
him back in two weeks. This will consist of
mobilization to regain better spinal mobility,
TENS unit to control some of his pain, and then
advance him into a stabilization program.
(Ex. p. 32)
Approximately one month later, Dr. Boulden tracked
claimant's progress with respect to his rehabilitation. Dr.
Boulden authored a report dated January 9, 1991. He wrote:
I have talked to the therapist today, and the
patient is getting better movement, but he is
still quite fixated on his pain. I am going to
have him see the physical therapist today, for an
evaluation for work conditioning. Basically, I am
concerned if he is still showing significant pain
fixation, that we will probably have to do some
work on pain management. If that is not taken
care of, then trying to get more aggressive in his
therapy, will probably not be very effective.
I will re-evaluate the patient in about one
month.
(Ex. p. 34)
Dr. Boulden then recommended a pain management program
for claimant. He wrote in his report of January 29, 1991:
Therefore, there was quite some concern to
begin with, about the program, whether the patient
could tolerate it or not. It is looking like this
patient is going to need some form of pain
management to help him tolerate his pain more,
before the work hardening program will be
beneficial.
Therefore, we have little else to offer from a
conservative management at this time, other than
pain management.
(Ex. p. 35)
Several weeks later, Dr. Boulden opined that claimant
Page 5
had reached maximum medical improvement as of January 29,
1991. The physician related the following:
It is our medical opinion that, effective,
1-29-91, there was no further orthopaedic care
that could be helpful for this patient. I feel
the patient's permanent disability rating is 7
percent of the lumbar spine.
(Ex. p. 36)
Later Dr. Boulden revised his opinion relative to
claimant's condition to reflect the following:
I have reviewed the Iowa City evaluation which
I think spoke in itself about the fact that the
patient should get on with his life. We do feel
that his degenerative disc disease is not that
significant in keeping him from working. I feel
that a lot of his problem is psychological as
reported by Iowa City as pain fixation.
It is very interesting, after reviewing the
tape, that the patient seems to be able to
function quite well in his own surroundings. As
stated before, I do not feel that his degenerative
disc disease is that significant that it would
preclude him from returning back to work.
Specifically, if there is light duty type of work,
then I would have no problem with him returning
back to work as long as he does not have to do
repetitive bending and twisting with his back. In
other words, we want him to use proper
biomechanics.
(Ex. p. 37)
Dr. Boulden ordered a rehabilitation program. Thomas
A. Wheatley, L.P.T., directed the treatment. Mr. Wheatley
stressed improving claimant's range of motion, pain
management and flexibility.
Claimant was also examined by Sam L. Graham, Ph.D. He
diagnosed claimant's condition as:
Diagnosis: Axis I - Psychological/behavioral
factors affecting a physical condition. Axis II -
Deferred. Axis III - Back pain disorder per the
assessment of Dr. Boulden.
It is my impression that Mr. Rodrigrez [sic]
would benefit from an intensive
behavioral/psychological approach to pain
management with an emphasis on relaxation training
and appropriate biofeedback to assist in enhancing
his skills to deal with pain. I will see him on
an intensive basis with the intent of having him
to the point that he can function more
appropriately in work-hardening in one week.
Page 6
(Ex. p. 47)
Dr. Graham worked with claimant in the art of pain
management techniques. His report to the insurance carrier
indicated the following:
He was referred to me by Tom Bower, licensed
physical therapist, and I saw him intensively for
one week to work on psychological/behavioral pain
management techniques. He was introduced to
progressive muscle relaxation, instructed in-home
practice, given information on the interaction of
physiological and psychological variables in pain,
and EMG training to assist him in reducing resting
muscle tension identified in the lumbar paraspinal
muscles were conducted. Mr. Rodriguez was able to
significantly reduce his resting muscle tension in
the lumbar paraspinal region while sitting. He
could reduce it some standing but only if he
supports himself with his hands.
The initial plan had been to send him back to
work-hardening in one week but he continued to
insist that he was incapable of participating in
more than one hour on a daily basis. At this
point my only recommendation would be to give him
instructions to begin a walking program on his own
and to gradually increase his tolerance until he
can stand enough time up to four hours a day. I
did discuss with him this date increasing his
walking on his own. It would be beneficial to him
to have that supervised in some manner. I would
be willing to see him on a weekly basis to work
with him to gradually increase his activity if you
would like me to do that. I have encouraged him
to continue with the relaxation training and
stress management techniques I have instructed him
in. I have not scheduled him to return to my
office and will wait until I have an opportunity
to discuss this with you on the telephone before I
do such.
(Ex. p. 49)
Claimant was also evaluated by Thomas Bower, L.P.T.,
for the purposes of determining whether work hardening was
appropriate. Mr. Bower noted the following in his report of
January 14, 1991:
The findings today, specifically of the West
Tool Sort, shows clear-cut evidence of symptom
magnification present. This patient is going to
be a very difficult patient to manage through the
work hardening program without the implementation
of outside pain management. We have discussed
this with the insurance company today and they
have given us the okay to involve our psychologist
who is on staff to proceed with this patient as
well. We will set that appointment up and we will
be beginning the work hardening program on January
Page 7
15, 1991. The prognosis of this patient is
extremely guarded at this point based on the
studies performed today.
(Ex. p. 52)
Claimant went to the Spine Diagnostic and Treatment
Center at the University of Iowa Hospitals and Clinics for
an evaluation to determine at what level he could
participate in a rehabilitation program. He was seen by a
variety of specialists. A report was written by Tom Lanes,
M.S., C.R.C., and James Weinstein, M.D. In the report the
members of the team determined that:
In our medical evaluation we feel that we have
very good news for you. Following a thorough
evaluation of all information and physical
examination, our medical staff is convinced that
you are absolutely solid, stable and healed from
all previous injuries and surgical procedures. We
certainly realize that you have a significant
amount of back pain and that this pain is very
real. However, we do not feel that the pain is
doing any harm or damage whatsoever at this time
and that it is very important for you to begin to
significantly increase function, trust your back,
and begin to recondition yourself. The concept of
hurt is not harm is a difficult concept to
understand, but in our experience, it is
absolutely critical in being able to significantly
increase your activities and get back to the goals
you have set for yourself.
Therefore, based on your input and our
evaluation, we have the following recommendations:
1) At the present time, we do not feel the Low
Back Pain Rehabilitation Program is appropriate
for you. This decision was based on a
consensus of the entire spine team that met
with you. The spine team all felt that you did
not feel the rehabilitation program would
benefit you, due to the fact that you had
engaged in similar activities or programs in
the past which had been unable to assist you in
improving your physical functioning. Because
of these reasons, you stated that you did not
wish to be involved in the rehabilitation
program at this time.
2) We do recommend that you begin immediately with
a home exercise program which has been
discussed with you here. This program is
designed specifically to help increase
strength, flexion and endurance, and to help
you to get back to the goals that you have set
for yourself.
3) For workers' compensation purposes, we feel
that you have reached maximum healing as of
Page 8
5/29/91. Your impairment rating for worker's
compensation purposes is 5% body as a whole,
based on the work-related injury sustained
8/14/90.
(Ex. pp. 57-58)
Debra S. Parrott, L.P.T., made certain recommendations
relative to claimant's rehabilitation. She opined:
RECOMMENDATIONS:
1. His average energy cost for employment should
be less than 2.0 METs for an eight hour day.
This range is suitable for sedentary light
tasks. This is based on his present endurance
level.
2. He was encouraged to begin a walking program.
The following program was given:
MODE: walk or any other low-impact aerobic activity
INTENSITY: as fast a pace as can be tolerated
FREQUENCY: daily
DURATION: begin with 5 to 6 minutes of
continuous walking, resting 1 to 5 minutes and
repeating the sequence 2 times. Progress to 20
minutes without stopping.
(Ex. p. 60)
A clinical psychologist at the Spine Diagnostic and
Treatment Center, Eugene F. Gauron, Ph.D., opined the
subsequent opinion relative to claimant's physical condition
and mental psyche:
Mario Rodriguez started our interview with
quite a display of pain behavior. He let it be
known that he was hurting from the day's
activities. Mario evidently is pretty well
convinced about several matters. He knows for
sure that he has a serious injury (which is
permanent). He gave quite a knowledgeable
presentation, showing me his injury on the x-rays.
He knows for sure that all the standard treatments
he has received so far have not helped him. This
is leading him to conclude that, like his injury,
his pain too may be permanent. A further
conviction he has is that nothing, short of
possible unusual treatments, can be done to
relieve his pain. His tried and true method for
relief is a Philipine back massage procedure that
was taught to his wife. He does have some hope
that Chinese acupuncture might do him some good.
One statement he made, which I believe, adds to
the pathos of his situation, "I will do everything
I can to get better." How can he reconcile this
willingness with his pessimism derived from
nothing having worked? He cannot even consider
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the Rehabilitation Program because he knows for a
fact that he has tried something like it and it
doesn't work. That conclusion, as are all others,
is unshakable. Meanwhile, he describes his life
as a question mark, his future as uncertain. He
sees himself as totally unable to work as he is.
I'm not sure I like where he appears to be headed.
(Ex. p. 68)
Claimant's physical condition and his motivation to
improve his condition is also addressed by Mr. Lanes in his
report of May 29, 1991:
VOCATIONAL IMPRESSION: Mr. Rodriguez would not
be a good candidate for our 2-week, out-patient
Rehabilitation Program at the University of Iowa.
He indicates that he feels he was forced to attend
today's evaluation inappropriately by his worker's
compensation insurance company, as a result of
their inability to settle his worker's
compensation claim. He states he has absolutely
no interest in attending the rehabilitation
program for several reasons. He states he is not
able to engage in the physical activities involved
and that this has been demonstrated by past lack
of benefit while in a work-hardening program. He
also indicates that he has had past coping skills
training in relaxation, concentration,
biofeedback, etc., and that these activities did
not assist him in managing his pain. Mr.
Rodriguez appears to feel that he is managing his
pain to the best possible degree on his own, that
only he is truly able to understand his pain
situation, and that involvement in the
rehabilitation program would not be likely to
assist him in reaching his goals. Because this
gentleman does not appear to believe that any
vocational option would be appropriate for him at
present, I have no vocational recommendations for
this gentleman.
(Ex. p. 70)
Philip L. Ascheman, Ph.D., performed a psychological
evaluation after having met claimant on January 27, 1992 and
January 28, 1992. The evaluation was made pursuant to a
request from a member of the Disability Determination
Services Bureau. In his report, Dr. Ascheman wrote in
relevant portion:
In my opinion based on the clinical interview
and objective testing, particularly the MMPI, it
is my opinion that this individual meets the
criteria for somatoform pain disorder as described
in the DSM-III-R. Specifically, he has shown a
preoccupation with pain for at least six months
and in the presence of a related organic
pathology, the complaint of pain and resulting
social and occupational impairment is presumed to
Page 10
be in excess of what might be expected from the
physical findings. Thus, this individual is
likely to hyper-focus on his pain causing him to
be further impaired. Focusing on his pain appears
to have caused a marked restriction of activities
of daily living and in maintaining social
functioning in that this individual has reported
near isolation from people other than his
immediate family as a result of his pain. He has
indicated that he has given up a number of social
activities because he feels that it would be
socially inappropriate to be continually moving
around from chair to chair, etc. Although he has
not attempted to return to work since the reported
accident, given his current presentation of pain,
it would appear to be quite unlikely that he would
continue to remain in the work place. In
addition, it would appear that his hyper-focusing
on his pain has a direct effect on his ability to
maintain attention and concentration. While his
difficulty with attention and concentration does
not specifically cause him to commit errors, it
clearly affects his mental pace. Thus, he is
persistent enough in order to know when he is
making an error but he becomes easily distracted
and agitated resulting in a slower than average
performance.
Therefore, it is my opinion that this
individual will show considerable difficulty in
returning to work as long as he continues to
experience his current level of pain. Clearly,
his focusing on his pain causes his condition to
be exacerbated. This patient is able to handle
his own funds as indicated by his WAIS-R scores in
Arithmetic, his description of use of financial
instruments, and his report of currently managing
the family funds.
(Ex. pp. 76-77)
Dr. Ascheman summarized his conclusions in his report
of June 23, 1992. He wrote:
In summary, I would conclude the following:
1) This patient meets the DSM-III-R criteria for a
diagnosis of somatoform pain disorder.
2) His expression of the disorder appears to be
both temporally and psychologically related to
his physical injury.
3) There is no evidence from my evaluation of him
to suggest malingering. This includes my
personal perception of him as being credible,
his presentation of pain behavior, his lack of
drug seeking behaviors, and the inability of
the MMPI to detect malingering on any of its
three validity scales.
Page 11
4) His personality profile as shown on the MMPI is
consistent with the diagnosis of somatoform
disorder.
5) His long term prognosis is poor. This
prognosis is consistent with suggestions made
throughout his medical and psychological
evaluations.
6) His apparent lack of motivation is a feature of
his somatoform disorder, not a conscious effort
to resist an intervention.
7) His ability to return to any type of
competitive employment is limited by his
perception of pain which affects his ability to
maintain attention and concentration.
(Ex. p. 81)
Claimant was evaluated by Sinesio Misol, M.D. The
orthopedic physician opined that:
X-rays and MRI performed at Mercy Hospital were
reviewed by me. Without any question, this man
has narrowing of the L5-S1 disc with posterior
protrusion of disc material. Because he has a
wide canal, the disc appears to be touching the
dural sac without producing any constriction.
My impression is a young man with L5-S1 disc
protrusion or degeneration with persisting severe
low back and left leg pain without neurological
deficit.
It is my opinion that as proven by available
records, all attempts at conservative treatment
have pretty much failed. I do not believe that I
would recommend surgery either in view of the lack
of neurological deficit. It is my opinion that he
has reached a plateau at least as of last year.
It is also my belief that he has a degree of
permanent/partial physical impairment that
certainly seems to be in the area of about 7 to 8
percent of the body. The amount of disability,
however, may be greater as he will be unable to do
work similar to the one that he was doing prior to
the injury, that is physical work that involves
bending, lifting, etc.
He, as above stated, has been given social
security disability. He will probably go back to
school and try to get a degree as a computer
operator, that he will be seeking a more sedentary
job in the future as soon as he can.
(Ex. pp. 84-85)
Defendants referred claimant to Management Consulting &
Page 12
Rehabilitation Services, Inc. Patricia McCollom, RN, MS,
CRRN, CIRS, interviewed and evaluated claimant. After an
initial interview with claimant, Ms. McCollom devised a
rehabilitation plan for claimant. She summarized the plan
in her report of February 3, 1992. The plan consisted of
the following conclusions and recommendations:
1. Refer for current medical evaluation to
determine any changes in status.
Rationale: An extended period has elapsed
since the last evaluation, with a fall in the
interim. Note: A psychological evaluation is
pending at the request of Social Security.
2. Refer to the State Division of Vocational
Rehabilitation for full functional evaluation.
Rationale: No evaluation has been completed to
determine skills, abilities. Transferable
skills are numerous (including bilingual,
ability to read, write, see, mobility within
the community) to consider appropriate work
options, further knowledge regarding his stated
educational background is necessary.
An alternative for work includes coordination
with such programs as PROTEUS and the
Commission on Latino affairs, to provide work
options for Mr. Rodriguez utilizing his Spanish
speaking skills and prior training.
(Ex. pp. 95-95)
As of April 1, 1992, Ms. McCollom terminated her
vocational rehabilitation services per the request of
claimant. The evidence indicated:
Mr. Rodriguez informed me that Saturday, March 28,
he was notified of approval for social security
disability; that he has thought about his
vocational future, but has not made decisions;
that he wishes to take some time to evaluate his
situation and proceed then to look at options.
This consultant commented on the need for
evaluation, to obtain information to base
decisions upon such as the need to evaluate
English reading levels. Mr. Rodriguez responded
listing courses he has completed in English. He
indicated he will contact me, for vocational
assistance, when/if needed.
(Ex. p. 96)
Claimant's attorney referred his client to Gaylord
Nordine, M.D., a psychiatrist. The physician authored a
report dated June 11, 1993. He opined:
Based on my review of the records and clinical
findings, it is my opinion, to a reasonable degree
Page 13
of medical certainty, that this gentleman fully
meets criteria for the diagnosis of somatoform
disorder. Also, based on my review of the records
and my clinical evaluation of Mr.
Rodriguez-Carballo, it is my opinion, to a
reasonable degree of medical certainty, that the
lifting incident that occurred in August of 1990
was a significant causal factor in the development
and subsequent manifestation of Mr.
Rodriguez-Carballo's somatoform disorder.
Historical factors identified by clinical
evaluation predisposed Mr. Rodriguez-Carballo to
development of somatoform disorder. The primary
clinical consideration regarding predisposition is
that this individual experienced extreme
disruption of family structure, school and peer
relationships, and virtually all elements of
cultural interaction at age seventeen when he was
violently displaced due to political changes in
central Cuba where he grew up.
Clinical interview reveals that Mr.
Rodriguez-Carballo suffers not only from
somatoform disorder, but from severe dysthymia due
to psychological trauma sustained at age
seventeen. Located in an alien culture at this
time, his depression is continuing. In my
opinion, he needs interactive therapy provided by
an expert in the treatment of cross-cultural
displaced person problems as soon as possible.
(Ex. p. 87)
In his deposition, Dr. Nordine testified that
individuals with somatoform disorder are individuals who:
In this population individuals who are under
stress distinctly lack the ability to convert that
distress into verbal symbolic representations and
lacking that ability for whatever reason they do
lack that ability they are predisposed to
developing somatic derivatives of emotional or
affective distress. That is the foundation for
our current understanding of somatoform disorder
in the United States.
Q. Now where does the displacement from one's
fatherland or the ex-patriotation process, how
does that fit in? Is that one of the groups,
then, that has this dysfunction that you've been
talking about?
A. Well, first of all, in his clinical
presentations to the extent we have studied him so
far there are other studies we can do that we have
not done to differentiate alexithymia or what I
call dysalexithymia and the predisposition to
somatozation or somatoform disorder, but given
what we know of him so far he clearly is an
Page 14
individual who converts distress into physical
awareness vis-a-vis ideational representations.
He is more likely to relate a stress to physical
discomfort than to some idea or concept is what
I'm saying. That's how he presents clinically.
Whenever someone presents that way clinically
then we look for predisposing stress, is there
something in the experience of this individual
which might have disrupted his ability to convert
into ideas as opposed to just developing physical
discomfort.
In my opinion such predisposing factors are
powerfully present in the history of Rodriguez
Carballo. The significance of such predisposing
factors is best discussed in the various papers by
Robert Post at the NIMH.
Q. Now when a person that is predisposed as
you've just described it, Doctor, to emanate, if
you will, or when that person's placed under
stress to emanate or to channel that in physical
ways, what happens in that person's life when he
or she might be injured or subjected to pain?
A. Such individuals are more likely than
average individuals to develop a prolonged pain
response, particularly if they continue to be
under stress. Rodriguez Carballo is in my opinion
chronically under stress because he is living in
an alien culture which is extremely difficult for
him to comprehend.
Q. Now prior to his work-related injury that's
really the subject of this particular lawsuit it's
your feeling that he was under stress as you've
just testified?
A. Yes.
Q. What was the role, then, of the work injury
in your estimation?
A. The work injury triggered or precipitated an
imbalance in the dynamic relationship between his
personality organization and his ability to cope
successfully with the experiences of daily living,
work, family, family life and so on. In my
opinion he was in a marginal balance prior to
injury and the injury tipped the balance into the
area of dysfunction.
Q. And that's why in your report of June 11,
1993, you view that work-related injury that
occurred in August of 1990 as a significant causal
factor?
A. Yes.
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Q. And that would still be your opinion today?
A. Yes.
(Ex. 61, pp. 32-35)
Dr. Nordine testified that with treatment claimant
could have a 50 percent chance to improve. The physician
opined:
Q. But now for prognosis what would your
prognosis be of Mr. Carballo's case?
A. My prognosis would be that if he can engage
in therapy using some interactive therapy format
which succeeds in resonating with his abilities to
interact that he would have at least a 50 percent
chance of making a substantial recovery,
substantial marked by his reachieving [sic] the
ability to do productive work.
(Ex. 61, pp. 51-52)
In his deposition, Dr. Nordine further testified under
cross-examination:
Q. I'm trying to distinguish between what I think
I just heard you say which is there is absolutely
no medical basis in the records for his pain at
Page 16
any level versus is there medical evidence to
support a report of pain but not as significant a
report as Mr. Rodriguez gives?
A. To the best of my recollection it's the
latter. I can't tell you from recent review what
is in that record. It's a distant review type of
thing, but I believe I recall that there was some
hard physical evidence at least at one point in
this case.
So my response would be that this is in the
category of disproportionate response.
(Ex. 61 page 68)
Under cross-examination, Dr. Nordine also testified:
Q. Do you view Mr. Rodriguez as having suffered
from dysthymia for a period of time prior to his
work injury in August of 1990?
A. Yes.
....
Q. So had he not carried the dysthymia with him
percolating below the surface or wherever it was
manifesting itself all these years had he not
carried that with him are you suggesting that the
likelihood of his developing a somatoform disorder
subsequent to the work injury would be reduced or
set aside altogether?
A. What I am saying is that his prior problem
increased the likelihood of a somatoform result.
Q. And is it related to the injury having created
a stress or increased stress--
A. Yes.
Q. --precipitated the somatoform?
A. It was a stress which demanded an adaptive
response and he's not been able to generate the
more typical adaptive response to the injury.
Q. Which is?
A. Recovery.
(Ex. 61 pages 84-85)
After the opinion of Dr. Nordine was provided to the
parties, defendants referred claimant to Michael J. Taylor,
M.D. He conducted a psychiatric interview and evaluation of
claimant. The results were summarized in his report of July
23, 1993. He wrote:
Page 17
During the course of my interview with Mr.
Rodriguez, I elicited from him a general past
psychiatric history including a discussion of his
childhood and the circumstances under which he
eventually left Cuba; I discussed with him the
current difficulties that he is experiencing with
pain and the limitations that the pain causes him
in his day-to-day life; I questioned him very
specifically about various signs and symptoms
which might be indicative of mental disorder; and
throughout the course of my interview with Mr.
Rodriguez, I assessed his mental status
examination.
Based upon all the information currently available
to me, I can offer the following opinions and
recommendations, all within a reasonable degree of
medical certainty.
I find no evidence that, at the present time, Mr.
Rodriguez suffers from an diagnosable psychiatric
disorder which would in any way cause any work
restrictions. I find no evidence of any type if
permanent (or even temporary) psychiatric
impairment. The only limitations to Mr.
Rodriguez's activities would be those limitations
described by the several very competent
orthopedists who have evaluated him.
(Ex.,page 86.)
Dr. Taylor also testified by way of deposition. He
testified that:
Q. What conclusions did you reach after your
review of the records and your interview with Mr.
Rodriguez?
A. Before viewing the videotape?
Q. Right.
A. That he suffered from no diagnosis of
psychiatric disorder.
(Ex.,58 p. 11)
In his deposition, Dr. Taylor later modified his
diagnosis. He testified that:
Q. Are there particular factors among others that
stand out from your interview and examination
which lead you to form the conclusion?
A. No. The whole general picture.
Q. As to that conclusion that you just stated,
how does that relate to the previous diagnosis
perhaps supported, as you just said, by the MMPI
scoring that the claimant here had a somatoform
Page 18
pain disorder?
A. I think it's really a stretch to call
somatoform pain disorder a psychiatric illness.
Somatoform pain disorder only says that somebody
has pain and nobody can find a reason for it. The
diagnosis, if you want to give it the credit of
the diagnosis as described in the Diagnostic and
Statistical Manual, Edition III, Revised,
describes somatoform pain disorder as basically
what I have said, somebody has pain and nobody can
find an explanation for the pain but doesn't apply
any psychiatric restrictions.
Q. Is the conclusion that Mr. Rodriguez had pain
without any real identifying source of the pain
consistent with the orthopedic records that you
reviewed?
A. Yes.
Q. Do you hold the opinion that Mr. Rodriguez has
no diagnosable psychiatric disorder to a
reasonable degree of medical certainty?
A. I did on July 23, 1993 when I issued this
report and I do today.
Q. Do you have any particular points of
disagreement with the conclusions of Doctor
Nordine or Doctor Ascheman?
A. Today or before I viewed the videotape?
Q. Well, let's first talk about before you viewed
the tape.
A. Before I viewed the tape again I don't have
any disagreement with the statement that this man
has pain that nobody can find a cause for. I
disagree with Doctor Nordine's contention that
this man was experiencing some psychiatric
difficulties related to his situation in Cuba
before he came to the United States. I don't
recall off the top if my head--yes, I do now. I
was starting to say I didn't recall what
statements Doctor Ascheman might have made
regarding permanency or state of disability, but
Doctor Ascheman's report seems to have been
pivotal in this man's receiving social security
disability benefits. And it's my recollection
that Doctor Ascheman estimated that this man was
totally and permanently disabled by his current
condition, and I strongly disagree with that even
as of July 23, 1993.
Q. In what respect or what causes the basis of
your disagreement with his conclusion in that
regard?
Page 19
A. I found no evidence of any psychiatric
disability. He had no symptoms of psychiatric
disorder other than this unexplained alleged pain.
Q. Did your opinions or conclusions change in any
record after viewing the videotape?
A. Yes.
Q. In what respect did they change?
A. I believe him to be a malingerer.
(Ex.,58 pages 11-14)
Since the date of the work injury, claimant has not
been employed in any meaningful capacity. He has not sought
employment. He has not engaged in any type of retraining;
he has not pursued any educational courses. Claimant has
not engaged in any volunteer work, despite the fact that
volunteer work has been recommended to claimant.
Claimant testified at the hearing that he could do
almost nothing. He testified he could drive a pick up truck
with standard transmission to the grocery store or transport
his child to school. Claimant testified he could carry
Page 20
sacks of garbage from the home to the front curb. He
indicated he would not try to engage in lifting. He also
testified he could sit for 30 to 60 minutes at a time, but
then he needed to stand and move around. Claimant indicated
he could walk about four blocks before he tired.
Defendants retained the service of a private
investigator to conduct surveillance of claimant at his
home. Defendants retained the services of Byron F. Robison,
d/b/a as American Central Investigation Firm. The videotape
was admitted as an exhibit. It depicted claimant performing
some household chores such as carrying bags of garbage or
bags of groceries. Claimant was also depicted scraping
paint from his home, and assisting another male with
dragging a live goat from the back of the truck. Mr.
Robinson indicated, in his report of June 27, 1991, that the
tape depicted claimant and another female walking from
across the street and both were carrying a large plastic
playhouse.
CONCLUSIONS OF LAW
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. App. P. 14(f).
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
Page 21
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications,
experience and inability to engage in employment for which
the employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
Compensation for permanent partial disability shall
Page 22
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Iowa Code section
85.34.
While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, its mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76
N.W.2d 756 (1956). If the claimant had a preexisting
condition or disability that is materially aggravated,
accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962);
Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112
N.W.2d 299 (1961).
There is no question that claimant has sustained a work
related injury to his low back. There is some objective
evidence to support claimant's claim of a permanent injury.
Numerous functional impairment ratings have been given by
recognized experts in the field of orthopedics. The ratings
have all been in the area of 5% to 8%. The ratings are
consistent with one another. No rating has exceeded the 8%
level. No physician has recommended surgery. All
orthopedic experts have prescribed conservative therapy and
some type of work hardening program. Many experts have
noted that claimant has not given maximum effort to
recovering.
Claimant has consistently maintained he is incapable of
even engaging in a rehabilitation program. Claimant has
described intense pain in the low back area as well as into
the lower extremities. He has not cooperated with many of
the recommendations of the rehabilitation specialists.
While claimant has indicated to various health care
professionals that he is willing, "To do anything to help
his condition", claimant has not lived up to his promise to
cooperate in a rehabilitation program.
Dr. Ascheman is not a medical doctor. He is not
licensed to practice medicine. He holds a doctorate degree
in psychology. He opines that claimant is incapable of
engaging in meaningful employment. His opinion was rendered
pursuant to a request from the Social Security
Administration. Dr. Aschman conducted testing and held an
interview with claimant. The psychologist did not treat
claimant in a clinical setting.
Dr. Nordine is of the opinion that claimant is
incapable of engaging in any type of rehabilitation because
claimant suffers from a somataform disorder which is
precipitated by his work injury. Dr. Nordine opines that
claimant has suffered from dysthemia since he was a
17-year-old student and a political prisoner in Cuba, but
that the work injury brought the somatoform disorder to
light. According to Dr. Nordine, the somatoform disorder
manifested itself only after the work injury took place. It
is Dr. Nordine's, opinion that claimant cannot handle a
Page 23
recovery from his work injury. In Dr. Nordine's opinion,
claimant is incapable of adjusting his life so that he can
effectuate change. Dr. Nordine maintains that only with
therapy, can claimant improve his condition.
Dr. Taylor, on the other hand, takes a contrary
position. He opines that claimant is not suffering from any
psychiatric disorder. It is Dr. Taylor's opinion there is
no physical explanation for claimant's pain. Dr. Taylor
even goes so far as to amend his opinion to include
malingering on the part of claimant. He amended his opinion
after he had viewed the surveillance video which was made of
claimant in June of 1991.
Both psychiatrists are recognized experts in the field
of psychiatry. Neither physician has been treating
claimant. Claimant has not even requested psychiatric care
or therapy from any mental health professional. Both
physicians saw claimant for purposes of rendering an
evaluation in anticipation of litigation. The amount of
contact each physician has had with claimant is only
minimal. The greater weight of the evidence does not
support a finding of any permanent psychological injury.
This deputy has viewed the surveillance video which
defendants authorized. The tape covers three separate days
in June of 1991. It is nearly three hours in length. In
the tape, claimant is seen scraping and painting a portion
of his house. The movements he exhibited involved bending,
squatting, sitting, reaching overhead, stretching to the
side, and some twisting. This deputy witnessed no
observable pain in any of claimant's movements. At all
times claimant was capable of performing the tasks which he
had attempted.
Claimant, and another male, are seen unloading and
carrying a goat from the back of his truck to the back yard.
Claimant is seen carrying various grocery and garbage bags.
On one occasion, claimant and another woman are carrying a
large plastic playhouse from the neighbor's home, across the
street, and to his own yard. Numerous times claimant is
captured on the tape as he is getting in and out of his
Toyota pick-up truck. It does not appear to this deputy
that claimant is having any difficulties entering and
exiting his vehicle. Throughout the duration of the tape,
claimant walks without any apparent difficulties. It is
acknowledged that claimant kicks out his foot when he walks.
However, this deputy is unable to determine whether this is
claimant's "natural walk", or whether this is the result of
claimant's back injury. At any rate, claimant shows no
difficulties when he is walking either on pavement or on
ground. Claimant is also seen standing for periods of time
of at least 15 to 20 minutes. While viewing the videotape,
this deputy never witnessed any manifestations of pain or
discomfort when claimant was standing.
It is the determination of the undersigned that
claimant demonstrated no physical manifestations of low back
pain during the course of the videotape. The tape has
Page 24
satisfactorily demonstrated to this deputy, that claimant is
capable of engaging in some employment opportunities.
Despite claimant's belief that "he cannot do anything",
claimant is quite capable of engaging in physical tasks such
as tasks involving some bending, some squatting, some
walking, standing, and driving a stand transmission vehicle.
It is also the determination of the undersigned that
even if claimant had been deemed to suffer some
psychological overlay as a portion of his claim, claimant
would still be capable of engaging in active employment.
Claimant has little motivation to return to active
employment of any kind. Despite claimant's declaration, "He
would do anything to improve his condition", claimant's
behavior has not convinced this deputy that claimant is
ready and willing to engage in even the smallest efforts
toward rehabilitating himself. Claimant has refused every
attempt at rehabilitation, despite defendants' numerous
offers of physical therapy, work hardening, pain management
techniques, pain clinics, and job placement. Claimant has
not requested psychological counseling, despite his
psychiatrist's opinion that claimant will not improve unless
he is given intense therapy. Dr. Nordine opines claimant is
incapable of helping himself because of claimant's long term
condition of dysthemia. Dr. Nordine also opines that
claimant's somatoform condition is the result of claimant's
work injury. However, after reviewing all of the evidence,
and after having viewed the three hour video tape, the
deputy is overwhelmingly convinced that claimant's pain
complaints are grossly exaggerated. This deputy is not
persuaded that claimant suffers from a somatoform condition.
There were no observations of intense pain during the
playing of the tape. This deputy is overwhelmingly
convinced that while claimant has sustained a permanent
partial impairment to his back, the industrial disability
which he has sustained, is much less than the disability
which is claimed by claimant.
Claimant, it appears, can engage in at least sedentary
and medium categories of work. The videotape demonstrates
the types of work which claimant can handle. Claimant is of
average intelligence. It is acknowledged that claimant's
entire education took place in Cuba, under the Castro
regime. However, given Cuba's standards, claimant is well
educated. He speaks both English and Spanish. He has
experience in the hospital setting, given the fact he was an
x-ray technician in Cuba. He has managed his own business.
After having run his own business, there are transferable
skills available to claimant. He is pleasant and
personable. He has some sales knowledge. Claimant is
employable.
Therefore, after having reviewed the evidence, after
having observed claimant during the hearing, and given
agency expertise, it is this deputy industrial
commissioner's determination that claimant is entitled to a
twenty-five percent permanent partial disability. He is
Page 25
entitled to benefits for 125 weeks at the stipulated benefit
rate of $208.37 per week.
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
The next issue to address is the issue dealing with
healing period benefits. Section 85.34 (1) provides that
healing period benefits are payable to an injured worker who
has suffered permanent partial disability until (1) the
worker has returned to work; (2) the worker is medically
capable of returning to substantially similar employment; or
(3) the worker has achieved maximum medical recovery. The
healing period can be considered the period during which
there is a reasonable expectation of improvement of the
disabling condition. See Armstrong Tire & Rubber Co. v.
Kubil, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period
benefits can be interrupted or intermittent. Teel v.
McCord, 394 N.W.2d 405 (Iowa 1986).
Defendants previously paid benefits from the date of
injury on August 21, 1990 through January 29, 1991, the
date, Dr. Boulden determined claimant had reached maximum
medical improvement. However, after reviewing the evidence,
it is this deputy's determination that claimant 's healing
period ended as of May 29, 1991. That is the date upon
which members of the Spine and Diagnostic Clinic at the
University of Iowa determined claimant had reached maximum
healing. (Ex., p. 58.). It is the determination of this
deputy that while Dr. Boulden held claimant had reached
maximum medical improvement in January, Dr. Boulden in the
same report also opined that claimant Nd was still in need
of some pain management. Therefore, it is the determination
of the undersigned that claimant is entitled to healing
period benefits from August 21, 1990 through May 29, 1991.
This represents a period of 40.286 weeks at the stipulated
rate of $208.37 per week.
ORDER
THEREFORE, it is ordered that:
Defendants shall pay unto claimant one hundred
twenty-five (125) weeks of permanent partial disability
benefits at the stipulated rate of two hundred eight and
37/l00 dollars ($208.37) per week and commencing on May 30,
1991.
Defendants shall pay unto claimant forty point
two-eight-six (40.286) weeks of healing period benefits from
August 21, 1990 through May 29, 1991 and at the stipulated
rate of two hundred eight and 37/l00 dollars ($208.37) per
week.
Defendants shall take credit for all benefits
previously paid.
Accrued benefits are to be paid in a lump sum together
Page 26
with statutory interest at the rate of ten percent (10%) per
year.
Costs are taxed to defendants pursuant to rule 343 IAC
4.33.
Defendants shall file a claim activity report as
requested by this division and pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of January, 1994.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Max Schott
Attorney at Law
6959 University Avenue
Des Moines, Iowa 50311
Mr. David L. Jenkins
Attorney at Law
801 Grand Avenue
Suite 3700
Des Moines, Iowa 50309
5-1800; 2204
Filed January 18, 1994
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
MARIO H. RODRIGUEZ-CARBALLO, :
:
Claimant, :
:
vs. :
: File No. 957279
QUALITY WINE COMPANY, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
WAUSAU INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1800; 2204
Claimant was awarded a 25 percent permanent partial
disability for an injury which he sustained to his low back.
Claimant also claimed that he had sustained a psychological
injury as a result of his back injury. The evidence
presented did not support claimant's alleged psychological
injury.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
MARIO H. RODRIGUEZ-CARBALLO,
File No. 957279
Claimant,
R U L I N G O N
vs.
M O T I O N F O R
QUALITY WINE COMPANY, INC.,
O R D E R
Employer,
N U N C
and
P R O
WAUSAU INSURANCE COMPANY,
T U N C
Insurance Carrier,
Defendants.
------------------------------------------------------------
An arbitration decision was filed in the above captioned
matter on January 18, 1994. In the arbitration decision,
this deputy industrial commissioner awarded:
Defendants shall pay unto claimant one hundred
twenty-five (125) weeks of permanent partial disability
benefits at the stipulated rate of two hundred eight and
37/100 dollars ($208.37) per week and commencing on May 30,
1991.
Defendants shall pay unto claimant forty point
two-eight-six (40.286) weeks of healing period benefits from
August 21, 1990 through May 29, 1991 and at the stipulated
rate of two hundred eight and 37/100 dollars ($208.37) per
week.
Defendants shall take credit for all benefits previously
paid.
Accrued benefits are to be paid in a lump sum together
with statutory interest at the rate of ten percent (10%) per
year.
Costs are taxed to defendants pursuant to rule 343 IAC
4.33.
Defendants shall file a claim activity report as requested
by this division and pursuant to rule 343 IAC 3.1.
No appeal was taken by any party.
On March 14, 1994, a motion for order nunc pro tunc was
filed by the defendants. In their motion, defendants
objected to various costs which claimant was requesting in
exhibit 1. Specifically, defendants were objecting to:
1. Costs for reports or deposition testimony related to a
claim involving an alleged psychological injury;
Page 2
2. Costs for certain items which defendants claimed did not
fall under rule 343 IAC 4.33 such as the cost to duplicate a
transcript.
On March 21, 1994, claimant filed his response to
defendants' motion for order nunc pro tunc. In his
response, the claimant stated:
3. Thus Claimant believes he is a "successful" claimant
within the general contemplation of Iowa Code section 625.1:
"Costs shall be recovered by the successful against the
losing party." See, also, rule 343 IAC 4.35.
....
6. Moreover, there is a considerable question as to whether
Defendants' present Motion can be held to be timely inasmuch
as the period for appealing the Deputy's decision is past.
In Wenstrad v. Kiddoo (Wenstrad) -- an analogous case in
which an unsuccessful defendant attempted to challenge a
court's allowance of excessive attorney fees by filing a
motion to retax costs after the time for an appeal had run
-- the Supreme Court stated:
In this case the motion to retax costs called for a
reconsideration by the court of the question on which it had
ruled in entering the judgment for the excessive attorney
fees. The error of the court inhered in the judgment and
the remedy is by appeal, and [Defendant] was not entitled to
the relief granted him on his motion to retax costs.
See, 222 Iowa at 297, 268 N.W. at 581 (emphasis added). In
reaching this conclusion, the Wenstrad Court cited as
authority a number of its earlier holdings including Young
v. Rutherford:
The motion called for a reconsideration by the court of the
questions on which it had ruled in entering the judgment,
and this is not the function of a motion to retax costs. We
think such a remedy was not available to the movant. To
correct the allowances made in the judgment entry, the
defendant should have appealed.
See 222 Iowa at 294, 268 N.W. at 579 (emphasis added)
(quoting Young v. Rutherford, 190 Iowa 414, 418, 176 N.W.
241, 242 (Iowa 1920)).
....
8. Further support for Claimant's position is found in
the statutory authority for nunc pro tunc orders: "Entries
made and signed*** may be altered only to correct an evident
mistake." See Iowa Code section 602.6203(4). Of the
limitations of such orders, our court has written:
The distinction, then as now, is this: The power of the
court to cause the record to conform to the judicial
pronouncement is inherent, and is not affected by the mere
lapse of time; before entry and signing, the power is
exercisable as the judge may direct; thereafter, the power
is limited to correction of "evident mistakes."
See, Headley v. Headley, 172 N.W.2d 104, 108 (Iowa 1969)
(emphasis added). Given the foregoing discussion, Claimant
does not believe Deputy McGovern's assignement of the costs
to Defendants can be said to be an "evident mistake" within
Page 3
the contemplation of Iowa Code section 602.6203(4).
A reply to claimant's response to motion for order nunc pro
tunc was filed by defendants on March 24, 1994. In its
reply, defendants requested this deputy to enter an Order
Nunc Pro Tunc.
Section 602.6204 (3) and (4) of the Iowa Code provides in
relevant portion:
3. A record shall not be amended or impaired by the
clerk of the district court, or by any other officer of the
court, or by any other person, except pursuant to the order
of the district court or some other court of competent
authority.
4. Entries made and signed, unless amended or expunged
as provided in subsection 3, may be altered only to correct
an evident mistake.
Defendants have requested an Order for Nunc Pro Tunc.
Black's Law Dictionary, Fourth Edition, (revised) defines
nunc pro tunc at page 1218. The entry reads:
Lat. Now for then. A phrase applied to acts allowed to be
done after the time when they should have been done with a
retroactive effect, i.e., with the same effect as if
regularly done.
Nunc Pro Tunc" entry is an entry made now of something
previously done to have the effect of former date; office
being not to supply omitted action, but to supply omission
in record of action really had but omitted through
inadvertence or mistake. (Citations omitted).
In the present case, this deputy industrial commissioner is
asked to to issue an order of nunc pro tunc for the
arbitration decision in this matter. Under section
602.6203(4) the decision may only be changed to correct an
evident mistake. There is no evident mistake in the taxation
of costs in the present case. The costs are taxed pursuant
to section 86.40 and to Rule 343 IAC 4.33. Costs may be
taxed in the discretion of the deputy commissioner or by the
industrial commissioner.
It is clear that section 86.40 governs the assessment of
costs. The section provides:
All costs incurred in the hearing before the commissioner
shall be taxed in the discretion of the commissioner.
It is also clear that costs are governed by the
administrative rules of the Division of Industrial Services.
Rule 343 IAC 4.33 governs costs which may be taxed by the
industrial commissioner or a deputy commissioner. The rule
expressly provides:
Costs taxed by the industrial commissioner or a deputy
commissioner shall be (1) attendance of a certified
shorthand reporter or presence of mechanical means at
hearings and evidential depositions, (2) transcription costs
when appropriate, (3) costs of service of the original
notice and subpoenas, (4) witness fees and expenses as
provided by Iowa Code sections 622.69 and 622.72, (5) the
costs of doctors' and practitioners'' deposition testimony
provided that said costs do not exceed the amounts provided
Page 4
by Iowa Code sections 6.22.69 and 622.72, (6) the reasonable
costs of obtaining no more than two doctors' or
practitioners' reports, (7) filing fees when appropriate,
(8) costs of persons reviewing health service disputes.
Costs of service of notice and subpoenas shall be paid
initially to the witnesses, doctors or practitioners by the
party on whose behalf the witness is called or by whom the
report is requested. Witness fees shall be paid in
accordance with Iowa Code section 622.74. Proof of payment
of any cost shall be filed with the industrial commissioner
before it is taxed. The party initially paying the expense
shall be reimbursed by the party taxed with the cost. If
the expense is unpaid, it shall be paid by the party taxed
with the cost. Costs are to be assessed at the discretion
of the deputy industrial commissioner or industrial
commissioner hearing the case unless otherwise required by
the rules of civil procedure governing discovery.
In the present case, no evident mistake has been made by
this deputy industrial commissioner in assessing costs to
defendants. The determination to assess costs is
discretionary. Since there is no evident mistake, the
motion for an order of nunc pro tunc is inappropriate.
Defendants' motion for an order of nunc pro tunc is denied.
The parties are reminded that costs are often assessed to
the defendants. That determination is customary in cases
where claimant is able to recover an award. See, Iowa
Workers' Compensation Law and Practice, Second Edition,
Lawyer and Higgs at section 22-8, p. 244-245. The authors
elaborate the following relative to costs:
In the majority of cases, costs will be taxed to the
defendant under a theory that defense of workers'
compensation cases is a part of doing business. However,
costs may be charged to the claimant, particularly in an
arbitration case where the suit is spurious or obviously
frivolous....
The order of the deputy industrial commissioner in all
probability will be a general one directing, for example,
that defendants pay costs. In most instances, the parties
work out the costs between or among themselves. A party,
however, can make specific requests for items which the
deputy usually will order with specificity. For instances,
the claimant might submit the costs of two doctors' or
practitioners' reports or request mileage or witness fees
for those persons appearing. (Footnotes omitted).
The parties are also advised that even though the assessment
of costs is discretionary, the costs must be allowable under
the Iowa Code or under the Iowa Administrative Code. In the
instant case, claimant's costs which are assessed to
defendants include:
Shorthand reporter at deposition of
Dr. Nordine $291.00
Cost of service 4.58
Dr. Nordine's deposition 150.00
Page 5
Two doctors' reports 200.00
100.00
Filing fees 65.00
Testimony
Total $810.58
THEREFORE, in light of all of the above, defendants' motion
for an order nunc pro tunc is denied.
ORDER
THEREFORE, it is ordered:
Defendants' motion for a nunc pro tunc is denied.
Costs of the filing of this motion is assessed to
defendants,
Signed and filed this ____ day of August, 1994.
________________________________
MICHELLE A McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Max Schott
Attorney at Law
6959 University Ave
Des Moines IA 50311-1540
Mr Dvid L Jenkins
Attorney at Law
801 Grand Ave Ste 3700
Des Moines IA 50309-2727
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
SANDRA VIERS, :
: File No. 957476
Claimant, :
:
vs. : MEMORANDOM OF
:
HY-VEE FOOD STORES, : DECISION ON
:
Employer, : ALTERNATE
:
and : MEDICAL CARE
:
EMPLOYERS MUTUAL, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
An original notice and petition was filed on December 23,
1992 under rule 343 IAC 4.48. January 6, 1993 was the date
set for a telephonic hearing. All parties were given proper
notice.
This alternate medical care petition was filed because of
the claimant's dispute with medical care she was being given
which arose out of a work injury on May 13, 1990. The
entire hearing was recorded via an audio tape. The detailed
decision was dictated into the record on the day of the
hearing and will not be reproduced in typewritten form
unless there is an appeal by the parties at which time the
procedures under the administrative code are to be followed.
Any rights of appeal will run from the date of the decision
dictated into the record, namely, January 6, 1993, and this
memorandum is solely for the purpose of the agency file
The deputy ordered that claimant's petition for alternate
medical care is denied. The decision was rendered on
January 6, 1993.
This memo signed this ______ day of January, 1993.
_____________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Page 2
Copies to:
Mr. David P. Kozlowski
Attorney at Law
1025 Ashworth Rd. #329
West Des Moines, Iowa 50265
Hy-Vee Food Stores
1111 Army Post Road
Des Moines, Iowa 50315
Ms. Trish McElderry
Employers Mutual Companies
P O Box 884
Des Moines, Iowa 50304-0884
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DAVID J. BENDICKSON,
Claimant,
vs.
File No. 957612
DOUBLE F. FRAMING,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
GENERAL CASUALTY,
Insurance Carrier,
and
SECOND INJURY FUND OF IOWA,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition of claimant,
David Bendickson, against his employer, Double F. Framing, and its
insurance carrier, General Casualty Insurance Company, defendants.
Claimant is also alleging that he is entitled to benefits from the
Second Injury Fund of Iowa. The Fund has also been named as a
defendant.
The case was heard on February 9, 1994 in Des Moines. The record
consists of the testimony of claimant. The record also consists of
exhibits 1-5 and exhibit A.
STATEMENT OF THE ISSUES
The issues to be determined are: 1) whether claimant is entitled to
permanent partial disability benefits; and 2) whether claimant is
entitled to benefits pursuant to the Second Injury Fund of Iowa.
STATEMENT OF THE FACTS
The deputy, having heard the testimony and considered all of the
evidence, finds:
Claimant is 50 years old. He is single with no minor children.
Claimant has obtained his GED.
On May 11, 1987 claimant was involved in a motor vehicle accident. The
accident was unrelated to any employment. As a result of that
accident, claimant sustained a comminuted fracture of the midshaft of
the femur (Exhibit A). His injury necessitated a two month stay in
Broadlawns Hospital. Claimant progressed very slowly.
A referral was made to the University of Iowa Hospitals and Clinics for
an evaluation in the orthopedics department. Initially, Dr. Neopala
(first name unknown) examined and evaluated claimant on March 9, 1988.
The orthopedic surgeon wrote the following in his clinical notes:
Assessment: Healing femur fracture with exuberant bone formation and
possibly not requiring any surgical intervention at this time.
Plan: We have instructed the patient to continue with his current
regimen of light weight-bearing as pain will tolerate. Should he have
any further problems, he should come back to us as soon as possible,
otherwise we will simply see him in six weeks for REPEAT AP AND LATERAL
OF HIS ENTIRE FEMUR WHILE STANDING. (Ex. 4c-1)
Claimant was off work for approximately three years. On February 20,
1990, claimant was released to return to construction work.
On August 1, 1990, claimant commenced his employment with the present
defendant. Foster Felton hired claimant to perform certain laboring
and carpentry tasks on residential building sites. For his services
claimant was paid $12.00 per hour.
On day two of his employment with the present defendant- employer,
claimant fell eight feet from a basement wall. He landed on his feet
with most of his weight placed on his right lower extremity. A
co-worker called for emergency assistance. Claimant was transported by
ambulance to Broadlawns Hospital.
Claimant underwent a limited internal fixation/external fixation (Ex.
4c-10). Again, he progressed in a very slow fashion.
Claimant was referred to the University of Iowa Hospitals and Clinics.
J. L. Marsh, M.D., Associate Professor of the Department of
Orthopedics, treated claimant. Dr. Marsh assessed claimant's condition
as "[h]ealing tibial plateau and proximal metaphyseal tibia fx.
(comminuted), progressing well" (Ex. 4c_7).
Claimant continued with follow-up treatment through the University of
Iowa Hospitals and Clinics. Dr. Marsh prescribed a custom brace.
Physical therapy and work hardening were prescribed for claimant.
In August of 1992, Dr. Marsh indicated the following relative to
claimant's condition:
X-rays: No evidence of atrophy or fusion of the joint.
Impression: The knee looks great with no evidence of arthritis. There
is good motion. Instability is small. Muscle strength and control of
the joint has improved since the last clinic visit. The patient may
still continue to improve, but it is hard to predict the likelihood of
improvement.
Plan: Mr. Bendickson is advised to continue activities as tolerated.
He should continue strength exercises. If possible, he was advised to
pursue less strenuous work. RTC in one year, AT WHICH TIME REPEAT AP
AND LATERAL VIEWS SHOULD BE DONE. (Ex. 4c-10)
A work hardening program was offered to claimant in October of 1991.
Thomas W. Bower, L.P.T., managed a 14 day program for claimant.
At the conclusion of the program, Mr. Bower issued his report of
November 20, 1991. He determined the following:
Mr. Bendickson continues to demonstrate some mild flexion loss of
his right knee with measurements taken from 0 to 130o. He is wearing
an Omni brace throughout the majority of the time that he is up for
stability purposes. I continue to demonstrate a mild to moderate
anterior instability noted on exam, but I can find nothing in the
record that would indicate the anterior cruciate was disrupted nor have
I received any further information to confirm that from Iowa City.
There does not appear to be a great deal of medial lateral instability.
Based on our assessment today, we feel the patient has sustained an
overall 7% impairment to the right lower extremity, in accordance with
the range of motion loss. The instability that I'm noting I feel
accounts for an additional 15%. We cannot account for any further
impairment based on the orthosis that he is required to wear, since the
guides specifically state that it must be a groin to ankle orthosis and
no other bracing is considered. Therefore, on the basis of our exam
today, we feel the patient has sustained an overall 21% impairment,
using the combined values charts of the 3rd Edition Revised AMA
[G]uides. (Ex. 4b-5 - 4b-6)
The treating physician at the University of Iowa, Dr. Marsh, issued a
report detailing claimant's condition as of June 25, 1993. Dr. Marsh
opined in the same report:
With respect to the right knee injury for David Bendickson, it is my
determination that he functions approximately at the level of a patient
with a knee fusion. However, since he does have some of the function
of his knee, I have chosen to rate his impairment of the right lower
extremity at 40%, which is 10% lower than the optimal knee fusion.
With respect to his opposite leg, he has an impairment of 5% for loss
of full knee flexion.
With respect to restrictions, I put no definite restrictions on
David. He is free to function at the level that he is able to achieve.
However, I think it is reasonable to expect that he would not be able
to do the heaviest type of work because of his knee. Therefore, we
would not expect that he could do heavy lifting greater than 20 lbs.,
climbing, running, or jumping. He would also have difficulty with
activities requiring vigorous use of the knee, such as driving a heavy
clutch, etc. With respect to recreational activities, I think it is
unlikely that he could run, jump, or play sports that required this.
(Ex. 4d-1)
Claimant desired an independent medical examination from a physician of
his own selection. Claimant was then examined and evaluated by Keith
W. Riggins, M.D., on October 6, 1993. Dr. Riggins issued his report
which is exhibit 4a-1. In the report, Dr. Riggins opined:
Examination of the left knee demonstrates moderate crepitance
throughout range of motion. There is a well-healed anteromedial
incision at the knee. Range of motion is zero to one-hundred five
degrees. Circumference is measured at sixteen and one-half inches five
inches above the inferior pole of the patella. Strength is Grade 5 in
both flexion and extension.
Examination of the right knee demonstrates no effusion. There is no
inappropriate angulation through the knee joint. Range of motion is
from full extension to one-hundred ten degrees of flexion. Marked
crepitance is present throughout range of motion of the knee including
a very prominent snap as Mr. Bendickson attains ten degrees of flexion
proceeding from full flexion. There are well-healed punctate incisions
on the anterior aspect of the tibia and a well-healed longitudinal
incision approximately three inches in length at the mid-portion of the
thigh on the right from external fixators. There are three well-healed
one-inch incisions on the medial aspect of the knee and one well-healed
one-inch incision on the anterolateral aspect from placement of
interosseous screws. There is a well-healed five inch posteromedial
incision at the knee. The right thigh measures sixteen inches at five
inches above the inferior pole of the patella. There is noted to be
Grade l posteromedial laxity of the joint.
X-ray examination of the right tibia and standing AP x_ray examination
of the right knee are obtained on October 6, 1993. These studies
demonstrate considerable disruption of articular surface of the tibia
with good maintenance of the joint space. Four metallic fixation
screws are in place and there is no inappropriate angulation through
the knee joint.
Records consisting of a statement of David Bendickson; University of
Iowa Hospital and Clinics (J.L. Marsh, M.D.); Broadlawns Medical
Center; General Rehabilitation Services, Inc.; and Mr. Tom Bower, LPT
are reviewed in the course of preparation of this report.
DIAGNOSIS: Severely comminuted plateau fracture right knee, healed.
IMPAIRMENT is rated utilizing the Fourth Edition of the AMA Guides to
Evaluation of Permanent Impairment. The condition of restriction of
range of motion of the knee to one-hundred ten degrees yields a ten
percent (10%) impairment. The condition of mild collateral laxity
yields a seven percent (7%) impairment. Impairment due to crepitance
is rated utilizing Table 19 at thirty percent (30%) of the knee joint
value. Knee joint value is sixty-seven (67%) impairment of the lower
extremity; therefore, the number sixty-seven percent (67%) is
multiplied by thirty percent (30%) yielding an impairment of twenty
percent (20%) of the lower extremity due to crepitance. Strength is
rated at Grade 4, both in flexion and in extension, and utilizing Table
39 yields impairment of twelve percent (12%) of lower extremity due to
weakness of flexion and twelve percent (12%) of lower extremity due to
weakness of extension.
Final Impairment is calculated in the following manner:
The value twenty percent is combined with ten percent yielding
twenty-eight percent (28%).
The value twenty-eight percent is combined with twelve percent yielding
thirty-seven percent (37%).
The value thirty-seven percent is combined with twelve percent yielding
the value forty-five percent (45%).
The value forty-five percent is combined with the value seven percent
yielding forty-nine percent (49%).
The final impairment rating is therefore, considered to be forty-nine
percent (49%) of the lower extremity.
DISCUSSION: Mr. Bendickson's injury of severely comminuted fracture of
the proximal tibia is felt to be causely [sic] related to his episode
of fall occurring on August 2, 1990 while in the employ of Double F
Framing Company. (Ex. 4a-2 - 4a-4)
Dr. Riggins later modified his opinion. His original evaluation was
based upon the Fourth Edition of the AMA Guides, but the Third Edition
of the AMA Guides was in existence at the time of claimant's injury.
Furthermore, the Third Edition of the AMA Guides was the volume used by
Mr. Bower in the rendering of his evaluation.
Therefore, in Dr. Riggins' modified evaluation, he opined:
The difference between the impairment rating provided by Dr. Marsh
and the impairment which I provided is felt to be primarily secondary
to the differences of technique of rating impairment of the knee
between the Third Edition, Revised and the Fourth Editions of the AMA
Guides to Evaluation of Permanent Impairment. The primary differences
are:
l. Range of motion of the knee joint is valued at fifty percent of
the lower extremity in the Third Edition of the Guides whereas it is
valued at sixty-seven percent impairment of the lower extremity in the
Fourth Edition. The impairments due to crepitation and strength loss
are dependent upon multiplication of the value for range of motion of
the knee by a converting factor. The increase in impairment due to
crepitation and impairment due to loss of strength is therefore
increased when rated in the Fourth as compared to the Third Editions.
2. The Third Edition provides no mechanism for rating impairment due
to mild medial collateral ligament laxity whereas the Fourth Edition
does provide such a mechanism.
The following impairment rating utilizing the Third Edition is
provided in order to allow comparison of my rating to that of Dr.
Marsh.
Instructions regarding impairment regarding crepitation are on Page
44 of the Third Edition and indicate a converting factor of .30. The
value from Table 35 for range of motion of the knee is fifty percent
impairment. Fifty percent is therefore multiplied by .30 yielding an
impairment of the lower extremity of fifteen percent (15%). Range of
motion is rated utilizing my obtained measurement of one-hundred ten
degrees in accordance with Table 35 of the Third Edition yielding an
impairment of fourteen percent (14%) of the lower extremity. Strength
deficit in flexion and extension is rated utilizing Table 47 and Table
11 with deficit being placed at ten percent. The hamstring impairment
is produced by multiplying seventy percent maximum impairment due to
loss of strength of hamstring by the converting factor of ten percent
yielding an impairment due to hamstring weakness of seven point five
percent (7.5%). The weakness of extension is calculated by utilizing
the figure thirty-five percent of the lower extremity secondary to loss
of power of femoral nerve innervative musculature by a converting
factor of ten percent yielding an impairment due to loss of strength in
extension of eleven percent (11%). The values fifteen percent and
fourteen percent are combined yielding an impairment of twenty-seven
percent which is then combined with eleven percent yielding an
impairment of thirty-five percent. The lower extremity is therefore
considered thirty-five percent impaired when rated in accordance with
the AMA Guides to Evaluation of Permanent Impairment, Third Edition.
It is noted that the Fourth Edition Guides to Evaluation of
Permanent Impairment did not become available until August of 1993.
Copies of the appropriate sections of the Fourth Edition Guides to
Evaluation of Permanent Impairment are included for your information.
(Ex. 4a-5 - 4a-6)
Various medical providers suggested claimant find another line of work
which would not be as strenuous as the construction industry had been.
As a result, claimant, on his own initiative, presented himself for
testing, evaluation, and rehabilitation at the Iowa Department of
Vocational Rehabilitation. Barb Smalley, counselor at The Polk County
Area Office for the Iowa Department of Vocational Rehabilitation,
issued a report on January 27, 1994. In the report Ms. Smalley
addressed issues surrounding claimant's employability. In her report
she wrote:
Finally, in December of 1993 David determined that the physical
requirements of carpentry work were just too strenuous with his
limitations. He again started exploring what type of work he could do.
We have started to review his limited options.
In 1992 he went through the Iowa State Vocational Rehabilitation
facility's evaluation program with following conclusions:Updating
academic skills for college work was not recommended. Math score at
the 10th grade level, able to complete whole numbers, but lacked skills
in fractions and decimals. Reading level is at grade 8.7. He has good
skills in mechanical reasoning and very good basic shop skills which
are supportive of work in maintenance, wood or mechanical tasks.
David has excellent mechanical skills, an established profession in
carpentry and potential for other positions using these basic shop
skills. However, his extensive limitations and the requirement to sit
and stand in various positions would require onsite modifications and
extensive work in uncovering a position in such a limited job market.
David has proven that he is able to find a job and that he is highly
motivated and very sincere in wanting employment to support himself.
His overall demeanor is that he is a person that likes to work with his
hands preferably in an outdoor environment. His strongest skills seem
to be in the industrial skill area, not general business or office.
For David the type of work environment is equally important to match
since he has already had the experience of working indoors in a
sedentary, routine assembly line type position prior to the disability
and it just did not match his work aptitude.
Conclusion: David has a barrier to the labor market and it is very
difficult to match his current transferable skills to the job market at
an income level anywhere near his previous level. He has experienced a
very limited job market even when he has been willing to take a lower
salary because he could only bid on the portions of the job that he
physically could perform. David and I are continuing to work on his
rehabilitation plan, however what he would like to do the most is
carpentry and he physically is not able to perform the climbing,
carrying, stooping, bending, kneeling tasks that are required in this
profession. This causes him to be severely disabled and seeking
services from our agency. (Ex. 3-1 - 3-2)
Claimant testified that he attempted a return to work with
defendant-employer. However, he was only able to complete three or
four months of employment with him, as claimant sustained a right
sprained ankle while he was climbing on a ladder at work. Claimant
testified that his employer believed claimant was "clumsy."
Ultimately, claimant was laid off from his position with the present
defendant-employer.
Claimant also performed some contract work for Steven Grubb. The
contract called for "punch list work." After a period of time, the
business slowed and claimant's services were no longer requested.
Additionally, claimant testified he performed other contract work in
the area of remodeling and performing odd jobs. Claimant's earnings
were sporadic.
CONCLUSIONS OF LAW
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).
Three eminently qualified medical witnesses have provided four
impairment ratings for claimant's right lower extremity. Dr. Marsh,
the treating orthopedic surgeon, has determined there is a 40 percent
impairment to the right lower extremity. Mr. Bower, an attending
physical therapist and not a physician, has evaluated claimant as
having a 21 percent impairment to the right lower extremity based upon
his interpretation of the AMA Guides to the Evaluation of Permanent
Impairment, Third Edition, Revised. Finally, there are two ratings
from the evaluating physician, Dr. Riggins. He has used the AMA Guides
to the Evaluation of Permanent Impairment, Fourth Edition. Then upon a
request from claimant's attorney, he has evaluated claimant using the
AMA Guides to the Evaluation of Permanent Impairment, Third Edition,
Revised.
Defendants argue that the Fourth Edition of the AMA Guides cannot be
used to evaluate claimant because the Fourth Edition was not in
existence at the time of claimant's injury. Defendants' argument is
without merit.
Rule 343-2.4 of the Iowa Administrative Code discusses the use of the
Guides in workers' compensation proceedings. The rule provides in
relevant portion:
The Guides to the Evaluation of Permanent Impairment published by
the American Medical Association are adopted as a guide for determining
permanent partial disabilities under Iowa Code section 85.34(2)
"a"-"r."...Nothing in this rule shall be construed to prevent the
presentations of other medical opinion or guides for the purpose of
establishing that the degree of permanent impairment to which the
claimant would be entitled would be more or less than the entitlement
indicated in the AMA guide.
In this case there is a medical opinion which is based on the Fourth
Edition of the Guides. The undersigned is able to consider and weigh
the medical opinion.
Both employer and insurance carrier argue that Dr. Riggins' evaluation
using the Fourth Edition is inappropriate because the Fourth Edition
was not in existence on the date of the work injury. Defendants
maintain Dr. Riggins is bound to use the Third Edition. Such an
argument is without merit. The AMA Guides are just guides. They are
not absolute determinates of a claimant's impairment. It is perfectly
permissible to use the Fourth Edition to assess the degree of
impairment, so long as the medical witness bases the medical opinion on
the AMA Guides.
Moreover, in the present instance, there is good reason to consider
using the AMA Guides, Fourth Edition. In the foreword to the Fourth
Edition, the editors explain:
The Fourth Edition of the Guides to the Evaluation of Permanent
Impairment (Guides) continues an activity begun by the American Medical
Association (AMA) almost four decades ago, the purpose of which was to
bring greater objectivity to estimating the degree of long-standing or
"permanent" impairments. The rationale for this new edition is that
the pace of progress and advance in medicine continues to be rapid, and
that a new look at the impairment criteria for all organ systems is
advisable. This edition has been prepared under the auspices of the
AMA's Council on Scientific Affairs.
...
The Fourth Edition continues to convey several basic principles. A
key tenet is that the book applies only to permanent impairments, which
are defined as adverse conditions that are stable and unlikely to
change. Evaluating the magnitude of these impairments is in the
purview of the physician, while determining disability is usually not
the physician's responsibility. This edition emphasizes that
impairment percentages derived by using Guides criteria represent
estimates rather than precise determinations. Permanent impairments
are evaluated in terms of how they affect the patient's daily
activities, and this edition recognizes that one's occupation
constitutes part of his or her daily activities.
(AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition,
pages v-vi)
A deputy industrial commissioner is free to consult the Guides and to
treat them as part of the record in the case, whenever a medical
witness relies on the Guides in expressing a conclusion or an opinion.
Shank v. Mercy Hospital Medical Center and the Second Injury Fund of
Iowa, File No. 719627 (Appeal Decision September 27, 1991). The
opinion of Dr. Riggins, which is based on the Fourth Edition, is
appropriate to consider in the present case. Dr. Riggins has
expressed, to the satisfaction of this deputy, how he arrived at his
impairment rating. His opinion is detailed. It is valid and it is
entitled to consideration. This deputy relies on the opinion of Dr.
Riggins.
Dr. Riggins' opinion is consistent with the opinion of Dr. Marsh. Both
opinions were rendered by medical doctors. Mr. Bowers' opinion is
inconsistent with the opinions of the other two medical providers.
However, Mr. Bowers is not a medical doctor. He is a physical
therapist. It is the determination of the undersigned that more weight
is accorded to the opinions of the two physicians. In light of their
opinions, it is the decision of the undersigned that claimant has
sustained a 45 percent permanent partial disability to the loss of a
leg. Under section 85.34(2)(o), claimant is entitled to weekly
benefits for 99 weeks at the stipulated weekly benefit rate of $263.46
per week. (220 weeks x 45% = 99 weeks)
The next issue to address is the issue dealing with claimant's
entitlement to benefits from the Second Injury Fund of Iowa.
Claimant's arguments are duly considered.
Section 85.64 governs Second Injury Fund liability. Before liability
of the Fund is triggered, three requirements must be met. First, the
employee must have lost or lost the use of a hand, arm, foot, leg or
eye. Second, the employee must sustain a loss or loss of use of
another specified member or organ through a compensable injury. Third,
permanent disability must exist as to both the initial injury and the
second injury.
The Second Injury Fund Act exists to encourage the hiring of
handicapped persons by making a current employer responsible only for
the amount of disability related to an injury occurring while that
employer employed the handicapped individual as if the individual had
had no preexisting disability. See Anderson v. Second Injury Fund, 262
N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' Compensation -
Law and Practice, section 17-1.
The Fund is responsible for the industrial disability present after the
second injury that exceeds the disability attributable to the first and
second injuries. (Section 85.64) Second Injury Fund of Iowa v.
Braden, 459 N.W.2d 467 (Iowa 1990); Second Injury Fund v. Neelans, 436
N.W.2d 355 (Iowa 1989); Second Injury Fund v. Mich Coal Co., 274 N.W.2d
300 (Iowa 1979).
Interest accrues on benefits the Fund pays commencing on the date of
the decision. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467
(Iowa 1990).
A deputy is entitled to determine the nature of claimant's injury and
entitlement to compensation from the evidence presented, regardless of
particular theories pled. Shank v. Mercy Hospital Medical Center, File
No. 719627 (Appeal Decision Filed August 28, 1989).
Claimant has met the statutory requirements for triggering the Second
Injury Fund benefits. He has sustained two permanent losses of the use
of a hand, an arm, a foot, a leg or an eye. The losses are permanent
in nature. The Second Injury Fund maintains it is not liable for
benefits owed due to public policy reasons. The Fund argues that:
I. CLAIMANT HAS FAILED TO PROVE ENTITLEMENT TO SECOND INJURY FUND
BENEFITS.
A. Public Policy Dictates Claimant's Alleged
First Loss Cannot Be A Qualifying Loss
for Purposes of 85.64.
Claimant relies on an injury producing event on May 11, 1987, as an
event which caused a loss to his left lower extremity. On that date,
claimant was involved in a motorcycle accident. According to claimant
he was hospitalized for two months, wore a hip spica cast for eight
months and convalesced at home about three years. According to
documentary evidence claimant had been drinking and drinking enough to
record an alcohol level of 185 at a time near or after his admission to
the hospital. Second Injury Fund Exhibit A. Alcohol related
accidents, injuries and deaths are serious and present to society
innumerable problems and financial strains on services such as private
and public health services. To allow anyone to seek benefits under
_85.64 based upon an accident where alcohol was clearly involved is
clearly contrary to public policy. To allow anyone to seek benefits
under 85.64 based upon an accident where alcohol was clearly involved
is tantamount to placing a stamp of approval on drinking alcohol and
driving. To allow anyone to seek benefits under 85.64 based upon an
accident where alcohol was clearly involved is tantamount to rewarding
such conduct. Such a position cannot be tolerated. And, such a
position is contrary to 85.16(2).
It is the determination of the undersigned deputy industrial
commissioner that claimant has a 60 percent industrial disability. He
is unable to return to work in the construction industry. He is
precluded from walking on uneven ground. Physical restrictions have
been imposed on claimant. Claimant has worked in the construction
industry for most of his work life. He has some transferable skills.
He has a superior knowledge of tools. He is mechanically inclined.
However, his math and reading skills are substandard. Academic
retraining is improbable, given the test scores he had obtained through
the Iowa Department of Vocational Rehabilitation. His age is working
against him. Claimant is motivated to find meaningful work. He has
sought vocational counseling upon his own initiative. Defendants have
provided a rehabilitation specialist, but the specialist had not been
allowed to engage in job seeking tasks. Rather, she was retained
merely for medical management. This is an unfortunate situation as it
is highly likely claimant would have benefited from vocational
counseling.
In order to determine the amount due from the Second Injury Fund, the
following formula is applicable:
300 weeks - disability from all impairments - 10 weeks - 200 weeks
x .06 weeks preexisting
disabilities - 99 weeks - amount of disability for which
defendant employer is responsible (200 weeks x .45)
________
191 weeks - amount of weeks for which the fund is liable
ORDER
THEREFORE, IT IS ORDERED:
Defendants, employer and insurance carrier, are liable for ninety-nine
(99) weeks of permanent partial disability benefits at the stipulated
rate of two hundred sixty-three and 46/l00 dollars ($263.46) per week
and commencing on November 20, 1991.
Accrued benefits are to be paid in a lump sum together with statutory
interest at the rate of ten percent (10%) per year pursuant to section
85.30, Iowa Code, as amended.
Defendant, Second Injury Fund of Iowa, is liable for one hundred
ninety-one (191) weeks of Fund benefits commencing ninety-nine (99)
weeks after the above has been paid, and it is payable at the
stipulated rate of two hundred sixty-three and 46/l00 dollars
($263.46).
Accrued benefits are to be paid in a lump sum together with statutory
interest at the rate of ten percent (10%) per year pursuant to section
85.30, Iowa Code, as amended and commencing on the date of the filing
of the decision.
Costs are taxed to the defendants with the Second Injury Fund only
responsible for its own costs.
Defendants shall file a claim activity report as requested by this
decision and pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of December, 1994.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Stephen D. Lombardi
Attorney at Law
10101 University STE 202
Des Moines IA 50325
Mr. Robert C. Landess
Attorney at Law
Terrace Center STE 111
2700 Grand Ave
Des Moines IA 50312
Ms. Shirley A. Steffe
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg
Des Moines IA 50319
5-1803; 3200
Filed December 7, 1994
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DAVID J. BENDICKSON,
Claimant,
vs.
File No. 957612
DOUBLE F. FRAMING,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
GENERAL CASUALTY,
Insurance Carrier,
and
SECOND INJURY FUND OF IOWA,
Defendants.
___________________________________________________________
5-1803; 3200
Claimant is entitled to both permanent partial disability benefits
and also benefits from the Second Injury Fund of Iowa.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
JUNE KEPLEY, :
:
Claimant, : File No. 957705
:
vs. : A R B I T R A T I O N
:
SECOND INJURY FUND OF IOWA, : D E C I S I O N
:
Self-Insured, :
Employer, :
Defendant. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by June
Kepley against Second Injury Fund of Iowa based upon an
injury of July 24, 1990 to her left hand. She alleges a
right hand injury of November 7, 1989 as the first loss.
Claimant seeks compensation in accordance with the Second
Injury Fund of Iowa. The Fund contends that this is one
bilateral injury, rather than a series of two injuries.
The case heard at Des Moines, Iowa on February 24,
1994. The record consists of testimony from June Kepley,
Sherri Barnhart and Carma Mitchell. The record also
contains claimant's exhibits 1 through 6 and defendant's
exhibits A through E.
FINDINGS OF FACT
Having considered all the evidence received, together
with the appearance and demeanor of the witnesses, the
following findings of fact are made:
June Kepley is a 48-year-old woman who developed
ganglion cysts on both wrists as a result of repetitive work
she performed for Nestaway Division at Chariton, Iowa.
(exhibit 2, page 6). On January 29 she underwent surgical
excision of the ganglion on her right wrist. (ex. 2, p. 8).
On February 27, 1990, she was released to resume restricted
work. On May 29, 1990, she was released for full duty.
(ex. 2, p. 9). The record in this case does not contain any
evidence that claimant has any permanent restrictions or
permanent impairment of any type as a result of the right
wrist ganglion.
When claimant was seen by Arnis B. Grundberg, M.D., for
her ganglion, he also diagnosed mild right carpal tunnel
syndrome. (ex. 2, p. 8). He found no evidence of left
carpal tunnel syndrome at that time. (ex. 6, p. 9).
After resuming work, claimant again sought care from
the plant physician on July 30, 1990. The plant physician
Page 2
noted that claimant appeared to have a problem with right
carpal tunnel syndrome which was aggravated by her work. It
was recommended that claimant return to Dr. Grundberg. On
August 2, 1990, the plant physician released claimant from
work until she was to be seen by Dr. Grundberg. (ex. 2, p.
7). It appears as though August 2, 1990 was the first day
that claimant was actually taken off work or prevented from
working on account of her carpal tunnel syndrome.
Claimant was seen by Dr. Grundberg on August 14, 1990,
at which time he diagnosed right carpal tunnel syndrome and
arranged an EMG evaluation. That EMG evaluation revealed
bilateral carpal tunnel syndrome with the right hand being
worse than the left. (exs. 2, p. 10; 6, p. 8). On
September 10, 1990, surgery decompressing the right carpal
tunnel syndrome was performed by Dr. Grundberg. On October
1, 1990, decompression of the left carpal tunnel was
performed by Dr. Grundberg. (exs. 2, p. 11; 6, pp. 8 & 9).
Claimant did not return to work between the two surgeries.
Following initial healing from the surgery claimant
continued to have problems. She experienced a return of
numbness in her right ring and long fingers. (ex. 2, p.
12). Claimant was released to return to light duty work
effective October 12, 1990 and again December 10, 1990. The
employer made no conforming work available. Dr. Grundberg
advised that if she worked in violation the restrictions she
would have an increased risk of developing a recurrence of
the carpal tunnel syndrome. He gave her the option of
resuming full work or quitting and finding other employment.
(exs. 2, p. 12; 6, p. 15). Claimant chose to resume full
duty work. (ex. 2, p. 13).
Dr. Grundberg has evaluated claimant and determined
that she has a 5 percent permanent impairment of each hand
as a result of residuals of carpal tunnel syndrome. (exs.
2, p. 14; 6, p. 16).
Dr. Grundberg explained that the problems with
ganglions are separate injuries which are distinct from the
carpal tunnel syndrome. (ex. 6, p. 19). There is nothing
in the record of this case to indicate that claimant has any
permanent disability as a result of the ganglions. All the
disability appears to be the result of her carpal tunnel
syndrome.
Though the record is far from overwhelming, the greater
weight of the evidence seems to indicate that claimant's
carpal tunnel complaints had an earlier onset in her right
hand than they did in her left. Nevertheless, the record
shows August 2, 1990 to be the first day claimant was
actually prevented from working as a result of carpal tunnel
syndrome complaints effecting either hand. Once she was
taken off work, she remained off work until recuperation
from both carpal tunnel surgeries (except for a brief return
from August 14, 1990 until approximately the date of her
right hand carpal tunnel surgery on September 10, 1990).
There was no return to work between the two carpal tunnel
surgeries.
Page 3
CONCLUSIONS OF LAW
When the disability develops gradually over a period of
time, the "cumulative injury rule" applies. For time
limitation purposes, the compensable injury is held to occur
when because of pain or physical disability, the claimant
can no longer work. McKeever Custom Cabinets v. Smith, 379
N.W.2d 368 (Iowa 1985).
The date of injury is not the date that an ailment is
diagnosed. The date of injury is the last date of work
before the disability has its onset. Oscar Mayer Foods
Corp. v Tasler, 483 N.W.2d 824 (Iowa 1992).
In this case, June Kepley's right carpal tunnel
syndrome was diagnosed and present long before she began
missing work in accordance with the plant physician's
recommendation on or about August 2, 1990. The parties seem
to have settled upon a date of injury of July 24, 1990 for
the left carpal tunnel syndrome. Interestingly, the left
carpal tunnel syndrome was not diagnosed until the EMG tests
were conducted in mid or late August 1990. Perhaps claimant
was off work as a result of disability commencing on July
24, 1990, but the plant physician did not actually take her
off work until August 2, 1990. Despite this discrepancy in
dates, the undersigned takes no issue with the date of July
24, 1990, as being the date of injury since it is supported
by the filing of a first report of injury and it is the date
alleged by the claimant in her petition. Changing the date
to August 2, 1990 does not alter the outcome of this case.
Carpal tunnel syndrome in this case resulted from
cumulative trauma as indicated by Dr. Grundberg and the
plant physician. It is well established by the record that
claimant's condition is work related.
The principal point of dispute in this case is
determining whether there are two injuries or only one.
From the record made it is determined that this case
involves one bilateral carpal tunnel syndrome injury. That
injury produced a 5 percent permanent impairment of each of
claimant's hands. The earlier right ganglion injury is not
shown to have produced any permanent disability of any
degree.
The benefit for permanent partial disability of two
members caused by a single accident is a scheduled benefit
under section 85.34(2)(s); the degree of disability must be
computed on a functional basis with a maximum benefit
entitlement of 500 weeks. Simbro v. Delong's Sportswear,
332 N.W.2d 886 (Iowa 1983).
Section 85.64 governs Second Injury Fund liability.
Before liability of the Fund is triggered, three
requirements must be met. First, the employee must have
lost or lost the use of a hand, arm, foot, leg or eye.
Second, the employee must sustain a loss or loss of use of
another specified member or organ through a compensable
injury. Third, permanent disability must exist as to both
the initial injury and the second injury.
Page 4
The Second Injury Fund Act exists to encourage the
hiring of handicapped persons by making a current employer
responsible only for the amount of disability related to an
injury occurring while that employer employed the
handicapped individual as if the individual had had no
preexisting disability. See Anderson v. Second Injury Fund,
262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers'
Compensation-Law and Practice, section 17-1.
The Fund is responsible for the industrial disability
present after the second injury that exceeds the disability
attributable to the first and second injuries. Section
85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467
(Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335
(Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274
N.W.2d 300 (Iowa 1970).
It is determined that the Second Injury Fund of Iowa
has no liability in this case since the disability results
from the bilateral carpal tunnel syndrome injury of on or
about July 24, 1990.
The employer did not participate in this hearing and no
determination is made with regard to the scheduled injury
benefit to be paid to the claimant in accordance with
section 85.34(2)(s).
ORDER
IT IS THEREFORE ORDERED that claimant take nothing from
the Second Injury Fund of Iowa in this proceeding.
It is further ordered that the costs of this action
against the Second Injury Fund of Iowa are assessed against
the claimant pursuant to rule 343 IAC 4.33.
Signed and filed this __________ day of May, 1994.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Christopher Spaulding
Attorney at Law
840 5th Ave
Des Moines, Iowa 50309
Mr. Stephen Moline
Assistant Attorney General
Hoover State Office Bldg
Des Moines, Iowa 50319
1808 2209 3202
Filed May 31, 1994
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
JUNE KEPLEY,
Claimant, File No. 957705
vs. A R B I T R A T I O N
SECOND INJURY FUND OF IOWA, D E C I S I O N
Self-Insured,
Employer,
Defendant.
------------------------------------------------------------
1808 2209 3202
A ganglion cyst and carpal tunnel syndrome were held to be
separate, distinct injuries though they both resulted from
repetitive employment with the same employer over much of
the same period of time. The carpal tunnel syndrome left a
5 percent permanent impairment of each hand but the record
failed to show any permanent impairment from the ganglions.
Claimant was diagnosed with right carpal tunnel syndrome in
late 1989, had surgery for a right ganglion in January 1990,
returned to work and then developed right carpal tunnel
complaints. EMG tests showed carpal tunnel syndrome
bilaterally.
The date of injury was held to be the first day disability
from working on account of the carpal tunnel syndrome.
There was a brief return to work while diagnostic testing
was underway. When testing was completed, surgery on the
right was performed followed a few weeks later by surgery on
the left. It was held that the carpal tunnel syndrome was
but one injury to be compensated under section 85.34(2)(s).
The claim against the Second Injury Fund of Iowa was denied.
The date of injury was held to be determined under the
cumulative trauma rule. The fact of an earlier diagnosis
did not change the date of injury from the date of
disability to the date of diagnosis.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ROBERT ACHENBACH, :
:
Claimant, :
:
vs. :
: File No. 958083
CITY OF COUNCIL BLUFFS, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
ARGONAUT INSURANCE, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
The record has been reviewed de novo on appeal.
ISSUE
The issue on appeal is:
Whether the defendants' motion for summary judgment was
properly granted. This issue involves the issue of whether
claimant's claim is barred by the statute of limitations.
In resolving this matter the issue of whether payments made
under Iowa Code chapters 410 and 411 would extend the
statute of limitations to three years pursuant to Iowa Code
section 85.26(2) must also be decided.
FINDINGS OF FACT
Claimant filed an original notice and petition seeking
weekly and medical benefits on April 8, 1993. The alleged
injury date as amended July 16, 1993 was November 19, 1989.
Defendants' filed a motion for summary judgment. Defendants
state and claimant does not dispute that the claimant was
paid full pay from the city's general fund during the time
off work pursuant to Iowa Code section 411.6(5). Claimant
was not paid weekly benefits under Iowa Code Chapter 85.
CONCLUSIONS OF LAW
Rule 343 IAC 4.35 makes Iowa Rules of Civil Procedure
237 through 240 applicable to motions of summary judgment
before this agency.
The standards applicable to a motion for summary
judgment are well settled in Iowa. Summary judgement should
be rendered when the record before the court shows that no
genuine issue exists as to any material fact and that the
Page 2
moving party is entitled to judgment as a matter of law.
Iowa R.Civ.P. 237(c); Suss v. Schammel, 375 N.W.2d 252, 254
(Iowa 1985); Brown v. Monticello State Bank, 360 N.W.2d 81,
83-84 (Iowa 1984).
The burden of showing that there is no genuine issue of
material fact is upon the party moving for summary judgment.
Sparks v. Metalcraft, Inc., 408 N.W.2d 347, 350 (Iowa
1987); Northrup v. Farmland Industries, Inc., 372 N.W.2d
193, 195 (Iowa 1985); Matherly v. Hanson, 359 N.W.2d 450,
453 (Iowa 1984). The resisting party, however, must set
forth specific facts showing there is a genuine issue for
trial. Iowa R.Civ.P. 237(e); Iowa Civil Rights Commissioner
v. Massey-Ferguson, Inc., 207 N.W.2d 5, 8 (Iowa 1973);
McCollough v. Campbell Mill & Lumber Co., 406 N.W.2d 812,
813 (Iowa app. 1987), Pappas v. Hughes, 406 N.W.2d 459, 460
(Iowa app. 1987). The resisting party may not rely solely
on legal conclusions to show there is a genuine issue of
material fact justifying denial of summary judgment. Id. at
460; Byker v. Rice, 360 N.W.2d 572, 575 (Iowa App. 1984).
When confronted with a motion for summary judgment, the
undersigned or agency is required to examine; in light most
favorable to the party opposing the motion, the entire
record before it, including the pleadings, admissions;
depositions; answers to interrogatories; and affidavits, if
any; to determine whether any genuine issue of material fact
is generated thereby. Sparks, 408 N.W.2d 347, 350; Drainage
District No. 119, Clay County v. Incorporated City of
Spencer, 268 N.W.2d 493, 499-500 (Iowa 1978). A fact
question is generated if reasonable minds can differ on how
the issue should be resolved. Northrup, 372 N.W.2d 193,
195; Henkel v. R. & S. Bottling Co., 323 N.W.2d 185, 197-88
(Iowa 1982). If upon examination of the entire record the
undersigned determines no such issue is present, and the
movant is entitled to judgment as a matter of law, entry of
summary judgment is proper. Sparks, 408 N.W.2d 347, 350.
Summary judgment is a proper remedy in cases where its
application advances its salutary objective of avoiding
useless, expensive and time-consuming trials where there
exists no genuine, factual issue to be tried. Diamond
Products v. Skipton Painting and Insulation, Inc., 392
N.W.2d 137, 138 (Iowa 1986); Neoco, Inc. v. Christenson, 312
N.W.2d 559, 560 (Iowa 1981).
Pursuant to rule 237(e), "When a motion for summary
judgment is made and supported..., an adverse party may not
rest upon the mere allegations...of his pleading, but his
response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a
genuine issue for trial. If he does not so respond, summary
judgment, if appropriate, shall be entered against him."
[Iowa Code sections 85.26(l) and (2) provide:
1. An original proceeding for benefits under
this chapter or chapter 85A, 85B, or 86, shall not
be maintained in any contested case unless the
proceeding is commenced within two years from the
Page 3
date of the occurrence of the injury for which
benefits are claimed or, if weekly compensation
benefits are paid under section 86.13, within
three years from the date of the last payment of
weekly compensation benefits.
2. An award for payments or an agreement for
settlement provided by section 86.13 for benefits
under this chapter or chapter 85A or 85B, where
the amount has not been commuted, may be reviewed
upon commencement of reopening proceedings by the
employer or the employee within three years from
the date of the last payment of weekly benefits
made under the award or agreement. If an award
for payments or agreement for settlement as
provided by section 86.13 for benefits under this
chapter or chapter 85A or 85B has been made and
the amount has not been commuted, or if a denial
of liability is not filed with the industrial
commissioner and notice of the denial is not
mailed to the employee, on forms prescribed by the
commissioner, within six months of the
commencement of weekly compensation benefits, the
commissioner may at any time upon proper
application make a determination and appropriate
order concerning the entitlement of an employee to
benefits provided for in section 85.27. The
failure to file a denial of liability does not
constitute an admission of liability under this
chapter or chapter 85A, 85B, or 86.
Weekly benefits paid to a claimant in lieu of workers'
compensation benefits are considered workers' compensation
benefits for purposes of determining the appropriate statute
of limitations. The nature of the payments determines
whether the payments are workers' compensation benefits or
benefits in lieu thereof. See e.g. McDaniel v. Chemplex
Company, File No. 698042 (Appeal Decision December 22,
1987).
In the instant case claimant was paid benefits pursuant
to Iowa Code section 411.6(5). Iowa Code section 85.1
provides in relevant part:
Except as provided in subsection 6 of this
section, this chapter does not apply to:
....
4. Persons entitled to benefits pursuant to
chapter 410 and 411.
....
6. Employers may with respect to an employee or
a classification of employees exempt from coverage
provided by this chapter pursuant to subsection 1,
2, 3, 4, or 5, other than the employee or
classification of employees with respect to whom a
rule of liability or a method of compensation is
Page 4
established by the Congress of the United States,
assume a liability for compensation imposed upon
employers by this chapter, for the benefit of
employees within the coverage of this chapter, by
the purchase of valid workers' compensation
insurance specifically including the employee or
classification of employees. The purchase of and
acceptance by an employer of valid workers'
compensation insurance applicable to the employee
or classification of employees constitutes an
assumption by the employer of liability without
any further act on the part of the employer, but
only with respect to the employee or
classification of employees as are within the
coverage of the workers' compensation insurance
contract and only for the time period in which the
insurance contract is in force. Upon an election
of such coverage, the employee or classification
of employees shall accept compensation in the
manner provided by this chapter and the employer
shall be relieved from any other liability for
recovery of damage, or other compensation for
injury.
The Iowa Supreme Court has recognized that these
sections prohibit claimants who are entitled to benefits
under chapter 411 from receiving additional benefits under
chapter 85. Johnson v. City of Red Oak, 197 N.W.2d 548, 549
(Iowa 1972). In Goebel v. City of Cedar Rapids, 267 N.W.2d
388, 390 (Iowa 1978) the court stated: "We think it is fair
to conclude from this history that workers' compensation and
chapter 411 benefits serve equivalent purposes and are
mutually exclusive."
Claimant received benefits under Iowa Code section
411.6(5). The nature of the payments claimant received was
not workers' compensation benefits nor benefits in lieu of
workers' compensation benefits. Claimant has not been paid
benefits under Iowa Code Chapter 85. The three year statute
of limitations found in Iowa Code section 85.26(2) is not
applicable. Sawyer v. National Transp. Co., 448 N.W.2d 306
(Iowa 1989).
The alleged injury date is November 19, 1989.
Claimant's original proceeding was commenced on April 8,
1993. Claimant's petition was filed more than two years
after the alleged injury. Claimant's action is barred by
Iowa Code section 85.26(1). There is no issue of material
fact in this case. As a matter of law, the employer and
insurance carrier are entitled to have summary judgment in
their favor against the claimant.]
The supreme court has long recognized that the summary
judgment procedure is properly invoked to avoid trial where
no factual issues exist. See e.g. Neoco, Inc. v.
Christenson, 312 N.W.2d 559 (Iowa 1981).
WHEREFORE, the decision of the deputy is affirmed.
Page 5
ORDER
THEREFORE, it is ordered:
That defendants' motion for summary judgment is
granted.
Signed and filed this ____ day of January, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Sheldon Gallner
Attorney at Law
803 3rd Avenue
P O Box 1588
Council Bluffs, Iowa 51502
Mr. Gregory G. Barntsen
Attorney at Law
35 Main Place
P O Box 249
Council Bluffs, Iowa 51502
2402; 2901; 2906
Filed January 18, 1994
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ROBERT ACHENBACH, :
:
Claimant, :
:
vs. :
: File No. 958083
CITY OF COUNCIL BLUFFS, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
ARGONAUT INSURANCE, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
2402; 2901; 2906
Claimant, police officer, received benefits pursuant to Iowa
Code Chapter 411. These benefits were found not to be
workers' compensation benefits nor benefits in lieu of
workers' compensation benefits. Three year statute of
limitations was not applicable. Claimant's action was
barred by two year statute of limitations in Iowa Code
section 85.26(1).