BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
THOMAS ROBERTS, :
:
Claimant, :
:
vs. :
: File No. 958248
JOHN MORRELL & COMPANY, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
NATIONAL UNION FIRE INSURANCE :
COMPANY, :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
_________________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal.
ISSUES
Defendant states the following issues on appeal:
A. The deputy commissioner erred in finding that
claimant suffered a permanent disability regarding
his first injury.
B. The deputy commissioner erred in finding that
claimant's industrial disability was 20 percent.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed April 2, 1993 are adopted as final agency action.
Page 2
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed April 2, 1993 are adopted as set forth below.
Segments designated by asterisks (*****) indicate portions of the
language from the proposed agency decision that have been
intentionally deleted and do not form a part of this final agency
decision. Segments designated by brackets ([ ]) indicate
language that is in addition to the language of the proposed
agency decision.
The first issue to be determined is the onset date of
claimant's two injuries.
The record clearly indicates that claimant first experienced
left wrist pain on August 16, 1985. He was diagnosed by Dr.
Redline and treated conservatively. His symptoms persisted and a
diagnosis of left carpal tunnel syndrome was made. Dr. Leonine
performed surgery on February 27, 1986. Clearly, the onset date
of claimant's left extremity impairment was August 16, 1985
(exhibit 3, page 29).
As to claimant's right hand and wrist problems, the record
clearly demonstrates that these surfaced on June 20, 1990 (ex. 3,
p. 80). Claimant continued to work and was treated
conservatively until August 13, 1990, when Dr. Beefcake took him
off work in order to get him ready for surgery on August 22,
1990. The record clearly demonstrates that the onset of
claimant's injury occurred on June 20, 1990, when he first
reported his symptoms to the company physician and conservative
treatment commenced.
*****
Since claimant has suffered an injury, the next question to
be resolved is whether the injury has caused a permanent
disability. The claimant has the burden of proving by a
preponderance of the evidence that the injuries of August 16,
1985 and June 20, 1990, are causally related to the disability on
which he now bases his claim. Bodish v. Fischer, Inc., 133
N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d
607, 613-14 (Iowa 1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo Tractor
Works, 73 N.W.2d 732, 738 (Iowa 1955). The question of causal
connection is essentially within the domain of expert testimony.
Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa
1960). Expert medical evidence must be considered with all other
evidence introduced bearing on the causal connection. Burt, 73
N.W.2d at 738. The opinion of the experts need not be couched in
definite, positive or unequivocal language. Sondag v. Ferris
Hardware, 220 N.W.2d 903, 907 (Iowa 1974). Moreover, the expert
opinion may be accepted or rejected, in whole or in part, by the
trier of fact. Sondag, 220 N.W.2d at 907. Finally, the weight
to be given to such an opinion is for the finder of fact, and
that may be affected by the completeness of the premise given the
expert and other material circumstances. Bodish, 133 N.W.2d at
870; Musselman, 154 N.W.2d at 133. The supreme court has also
Page 3
observed that greater deference is ordinarily accorded expert
testimony where the opinion necessarily rests on medical
expertise. Sondag, 220 N.W.2d at 907.
The uncontroverted medical opinion indicates that claimant's
bilateral carpal tunnel syndrome has caused permanent disability.
Dr. Sprague gave claimant a 10 percent left upper extremity
impairment rating and Dr. Kuhnlein gave claimant a 10 percent
right upper impairment rating. These ratings were based on
residuals from carpal tunnel syndrome.
Claimant alleges that the combined disability caused by his
injuries have caused industrial disability which should be
compensated by the Second Injury Fund.
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
Page 4
functional impairment directly correlate to a degree of
industrial disability to the body as a whole. In other words,
there are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw upon
prior experience as well as general and specialized knowledge to
make the finding with regard to degree of industrial disability.
See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 529 (App. March 26, 1985);
Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28, 1985).
Compensation for permanent partial disability shall begin at
the termination of the healing period. Compensation shall be
paid in relation to 500 weeks as the disability bears to the body
as a whole. Section 85.34.
At the time of his second injury in 1990, claimant was 46
years old. He is a high school graduate and has worked in the
past as a baker, assistant manager of data processing, office
manager, sales representative, and marina manager. Claimant has
worked as a line butcher for employer since 1982. At the time of
his injury in June 1990 he was earning $8.40 per hour. He
currently earns $8.85 per hour. Claimant does not have a loss of
earnings. However, he does have a minimal loss of earning
capacity. He has minimal physical limitations and is not
restricted from performing his usual job with employer. His
complaints of pain, numbness and weak grip strength are not
supported by the medical evidence. Claimant has not needed
medical care or treatment since he was released to return to work
in October 1990.
*****
The next issue to be determined is whether claimant is
entitled to Second Injury Fund benefits.
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
Page 5
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).
In this instance, there is sufficient evidence to show that
claimant sustained a first permanent injury to his left
wrist/hand in 1985. Claimant sustained a second injury to his
right wrist/hand in 1990. The medical evidence that is most
persuasive indicates that claimant has a 10 percent functional
impairment to his left upper extremity and a 10 percent
impairment to his right upper extremity. According to the Guides
to the Evaluation of Permanent Impairment, third ed. (revised),
10 percent of the upper extremity is an 11 percent impairment of
the hand (table 2, p. 16).
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 he is fitted. Olson
v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251,
257 (1963).
*****
[In light of the fact that claimant is still working, has no
restrictions, and has not lost earnings as a result of his work
injury, his disability is minimal. The testimony of the
vocational rehabilitation worker that claimant would suffer a
loss of earnings in the future if he were to lose his job
constitutes speculation. An award of benefits must be based on
claimant's present circumstances.
It does not appear that claimant's loss of earning capacity
exceeds the disability he is entitled to for the injury to his
right hand. Claimant is entitled to receive 20.9 weeks of
benefits for an 11 percent impairment of his right hand. The
Second Injury Fund of Iowa is liable only for any disability
caused by the combined effect of claimant's prior loss and
current injury. Claimant's current disability does not exceed
the 20.9 weeks for los of his right hand.
If claimant's circumstances change in the future, claimant
is entitled to seek review-reopening at that time.]
The next issue to be determined is the commencement date of
permanent partial disability benefits.
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
Page 6
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).
Healing period benefits may be characterized as that period
during which there is a reasonable expectation of improvement of
a disabling condition and ends when maximum medical improvement
is reached. Armstrong Tire & Rubber Co. v. Kubli, Iowa App., 312
N.W.2d 60, 65 (1981). In discussing the concept of healing
period as contemplated by Iowa Code section 85.34(1) (1991), the
Kubli court observed that recuperation refers to that condition
in which healing is complete and the extent of the disability can
be determined. Kubli, 312 N.W.2d at 65. The healing period
generally terminates at the time the attending physician
determines that the employee has recovered as far as possible
from the effects of the injury. Kubli, 312 N.W.2d at 65. When a
permanent rating is given, it indicates that the physician does
not expect the claimant to improve and this conclusion meets the
criteria of Iowa Code section 85.34(1) and Thomas v. William
Knudson & Sons, Inc., 349 N.W.2d 124, 126 (Ia. Ct. App. 1984).
The finding of a termination of healing period necessarily
precludes the discussion of the running award. Hoskins v. Quaker
Oats, Vol 2. No. 1 Iowa Industrial Commissioner Decisions, 181,
185 (App. 1985). Since the healing period contemplates an
inability to work, a healing period cannot start until claimant
leaves work. This is true even if claimant is experiencing
symptoms on the job but does not leave work for a variety of
reasons. Boyd v. Western Home, file number 890207 (Iowa
Industrial Commissioner App. June 26, 1991).
Section 85.34(1) provides that healing period benefits are
payable to an injured worker who has suffered permanent partial
disability until (1) the worker has returned to work; (2) the
worker is medically capable of returning to substantially similar
employment; or (3) the worker has achieved maximum medical
recovery. The healing period can be considered the period during
which there is a reasonable expectation of improvement of the
disabling condition. See Armstrong Tire & Rubber Co. v. Kubli,
312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can
be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405
(Iowa 1986).
The greater weight of the evidence supports the finding that
claimant was taken off work on August 13, 1990, by Dr. Beefcake
and released to return to work on October 31, 1990. Therefore,
claimant's healing period ended on October 31, 1990, and payment
of permanent partial disability benefits by employer commences on
November 1, 1990. The Second Injury Fund liability begins at the
end of the employer's liability for weekly benefits. Finneman v.
Wilson Foods Corp., file numbers 834479 & 913590 (App. Dec. March
17, 1993).
According to the July 1, 1989, Guide to Iowa Workers'
Page 7
Compensation Claim Handling, claimant's proper rate of
compensation is $250.68 per week ($373.28 gross weekly wage,
married with five exemptions).
WHEREFORE, the decision of the deputy is affirmed and
modified.
ORDER
THEREFORE, it is ordered:
That defendants employer/insurance carrier shall pay
claimant twenty point nine (20.9) weeks of permanent partial
disability benefits at the rate of two hundred fifty and 68/100
dollars ($250.68) per week commencing November 1, 1990.
That defendants employer/insurance carrier pay the costs of
these proceedings pursuant to rule 343 IAC 4.33.
That defendants employer/insurance carrier receive credit
for benefits previously paid.
That defendant employer and claimant shall determine the
proper amount of credit for benefits previously paid by defendant
employer.
That all accrued benefits are to be paid in a lump sum.
That interest will accrue on benefits paid by employer
pursuant to Iowa Code section 85.30.
That defendants file claim activity reports as required by
this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of January, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies to:
Mr. Paul Deck
Attorney at Law
635 Frances Bldg
Sioux City, Iowa 51101
Mr. Bryan J. Arneson
Attorney at Law
STE 340 Insurance Center
507 7th St
Sioux City, Iowa 51101
Page 8
Mr. James F. Christenson
Assistant Attorney General
Hoover State Office Bldg
Des Moines, Iowa 50319
5-1402.40; 5-3202; 5-1802
Filed January 31, 1994
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
THOMAS ROBERTS, :
:
Claimant, :
:
vs. :
: File No. 958248
JOHN MORRELL & COMPANY, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
NATIONAL UNION FIRE INSURANCE :
COMPANY, :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
_________________________________________________________________
5-1402.40
Found that claimant had a 1985 first injury to his left
wrist/hand (not upper extremity) and a second injury in 1990 to
his right hand/wrist (not upper extremity).
5-3202
Second Injury Fund benefits were not granted. Claimant
proved a first loss of use of his right hand and a second loss of
use to his left hand. The Second Injury Fund is responsible for
the excess industrial disability over the combined scheduled loss
of the first and second injuries. Claimant's disability did not
exceed the scheduled amounts.
5-1802
Section 85.34(1) provides that healing period benefits are
payable to an injured worker who has suffered permanent partial
disability until (1) the worker has returned to work; (2) the
worker is medically capable of returning to substantially similar
employment; or (3) the worker has achieved maximum medical
recovery. The healing period can be considered the period during
which there is a reasonable expectation of improvement of the
disabling condition. See Armstrong Tire & Rubber Co. v. Kubli,
312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can
be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405
(Iowa 1986).
Claimant was taken off work by his treating surgeon on August 13,
1990, and released to return to work on October 31, 1990.
Claimant's healing period ended when he was released to return to
work. The commencement date for permanent partial disability
benefits is November 1, 1990.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
THOMAS ROBERTS, :
:
Claimant, :
:
vs. :
: File No. 958248
JOHN MORELL & CO., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
NATIONAL UNION FIRE INS., :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Thomas
Roberts, claimant, against John Morrell and Company,
employer, and National Union Fire Insurance, insurance
carrier, as well as against the Second Injury Fund of Iowa,
defendants, to recover benefits as the result of an alleged
injury to the left upper extremity and an alleged injury to
the right upper extremity. This matter came on for hearing
in Sioux City, Iowa, on March 25, 1993. The record was
considered fully submitted at the close of the hearing. The
claimant was present and testified. Also present and
testifying was Dale Stark. The documentary evidence
identified in the record consists of claimant's exhibits 1
through 3 and defendants' exhibit A.
ISSUES
1. The appropriate dates of claimant's injuries;
2. The appropriate rate of claimant's second injury;
3. The extent of permanent partial disability benefits
for which employer is liable;
4. The commencement date of permanent partial
disability benefits; and
5. The extent of claimant's entitlement to Second
Injury Fund benefits.
FINDINGS OF FACT
Page 2
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Claimant was born on May 10, 1944, and graduated from
high school in 1963. Claimant served in the United States
Army from 1966 through 1968. He received training as a cook
and baker. Claimant attended the Electronic Computer
Programming Institute from 1968 through 1969 and received an
associate degree in computer programming. His work activity
includes cook, baker, data processor, sales representative
and office manager (exhibit 1). Claimant has worked for
both John Morrell and Company and its predecessor, Iowa Meat
Processing, since 1982. In 1985, he worked on the belly
line pulling ribs. He injured his left upper extremity and
underwent surgery in February 1986. He returned to work in
April 1986 on the belly line. He then injured his right
upper extremity and underwent surgery in August 1990. He
returned to work with employer three months later strapping
boxes. In February 1992, he started aligning bellies.
Claimant continues to work for employer in this capacity.
He earns $8.85 per hour. When he returned to work after
surgery in August 1990 he earned $8.35 per hour.
The pertinent medical evidence of record reveals that
on August 16, 1985, claimant was seen at Morningside Family
Practice with left wrist pain after pushing down with a
knife while working on the belly line. John N. Redwine,
D.O., diagnosed left wrist strain and prescribed a splint.
Claimant was seen for follow-up evaluation on October 21,
1985, and at this time Dr. Redwine prescribed Motrin.
Follow-up examinations in October and November 1985 revealed
a diagnosis of carpal tunnel syndrome in the left hand with
positive Tinel's and Phalen's signs. Claimant's symptoms
persisted and Dr. Redwine referred claimant to N.R. Lentini,
M.D., for further evaluation on February 24, 1986 (ex. 3,
pages 29-56).
On June 13, 1986, Dr. Lentini reported that he
performed release of claimant's left median nerve on
February 27, 1986. By April 17, 1986, it was determined
that claimant had healed and was experiencing no pain. He
was released to return to work on the following Monday. Dr.
Lentini was not aware of any disability sustained as a
result of this condition (ex. A).
On May 19, 1988, the parties submitted to the
industrial commissioner an application for compromise
special case settlement. The agreement was approved by a
deputy industrial commissioner on June 2, 1988, and ordered
defendants to pay claimant the sum of $6557 (ex. A).
Claimant testified that he returned to work on April
21, 1986, on the belly line grading ribs. He was paid $8.20
per hour. On February 13, 1990, claimant sought medical
attention for left shoulder pain and trembling and tingling
of the left hand. He was diagnosed with left shoulder
tendonitis and light duty was recommended. At this time,
claimant was running a wizard knife. Because of his
Page 3
symptoms, claimant was put on a straight knife cutting ribs.
On May 9, 1990, claimant was released from all restrictions
(ex. 3, pp. 64-79).
On June 20, 1990, claimant reported to employer's
physician right hand shoulder pain. Physical findings
revealed a positive Phalen's and Tinel's sign and a
diagnosis of carpal tunnel syndrome. Claimant's symptoms
persisted and on July 27, 1990, a referral was made to Allan
Pechacek, M.D. On August 13, 1990, Dr. Pechacek indicated
that EMG and nerve conduction studies confirmed right carpal
tunnel syndrome. He took claimant off work and performed
surgery on August 22, 1990. Dr. Pechacek released claimant
to return to work on October 31, 1990. He imposed no
restrictions at this time (ex. 3, pp. 80-94).
Claimant returned to Dr. Pechacek on November 29, 1990,
with complaints of soreness and pain across the base of the
palm. Dr. Pechacek felt that claimant could return to his
regular job using the wizard knife in his left hand and
manipulating the meat with his right hand. Claimant was
rechecked by Dr. Pechacek on December 27, 1990. Claimant
made no complaints of numbness or tingling in his wrist,
hand or fingers either with use or at rest. An examination
revealed that his wound was well healed and non-tender. His
wrist range of motion was essentially normal in flexion,
extension, radial and ulnar deviation. His thumb and finger
motion was normal. Sensation to light touch and pin prick
seemed essentially normal in the median and ulnar and radial
nerve distribution. He had no definable weakness or
abduction of the fingers against resistance or with
abduction and opposition of the thumb with pinch. Dr.
Pechacek stated, "Overall he seems to be doing well and has
made a good recovery. In view of the fact that he has
nearly normal sensation and good strength and motion would
really have little or no residual permanent impairment."
(ex. 3, p. 99).
Claimant was referred by employer to John Kuhnlein,
D.O., medical director of the Occupational Health Network
for an impairment rating evaluation on April 11, 1991. Dr.
Kuhnlein reported on physical examination as follows:
...There is 5/5 intrinsic hand muscle strength.
No atrophy or wasting is noted in either thenar
eminence. There is full range of motion of all
the digits. No pain is noted with resistance.
Phalen's test is negative. Tinel's test is
negative. Finkelstein's and Allen's tests are
negative. Grip strength on the left was 140
pounds; on the right it was 100 pounds. He is
left-hand dominant....
Sensory exam shows a mild sensory loss in the
distal fingertips of the second, third and fourth
fingers. Other sensory exam is unremarkable.
Vascular status is intact.
(exhibit 3, page 106)
Page 4
On the basis of the examination, Dr. Kuhnlein assigned
claimant a 10 percent impairment rating to the right upper
extremity as a result of the injury sustained on or about
June 1990.
On August 2, 1991, claimant was referred by his
attorney to R.I. Sprague, D.C., for a possible impairment
rating to the left wrist and hand. On examination, Dr.
Sprague reported as follows:
Examination of the left hand reveals a
well-healed surgical scar on the palmer surface of
the wrist approximately one to two inches in
length. There are no signs of redness or
inflammation or any sort of residuals from poor
wound healing. The wrist is normal in all ranges
of motion accept that it is limited to 35o flexion.
Sensory examination of the hand is normal to
two-part discrimination and heat and cold with
particular emphasis of the examination on the
median distribution. Negative Tinels, negative
Tinel press, and negative Philen's [sic] press all
indicated no current median nerve compression at
the wrist. Grip strength compared between the
right and left hands showed a possible slight
diminution of grip in the left dominant hand in
comparison with the right.
(exhibit 3, pages 120-121)
Based upon the physical examination, Dr. Sprague
indicated that claimant has a 10 percent impairment of the
left upper extremity due to limited motion of the wrist and
slight loss of grip strength.
Claimant was referred by his attorney to William V.
Tucker, Ed.D., vocational evaluator, for an evaluation on
February 15, 1993. Claimant related to Mr. Tucker that he
is currently working and earning $8.50 per hour. He
indicated that he is able to do his work with no particular
problems because it does not involve repetitive use of the
wrists. Mr. Tucker stated that "As long as Mr. Roberts is
able to continue with the kind of work that he is doing,
vocational transfer questions appear to not be relevant."
Mr. Tucker speculated that if claimant were to leave his
present employment and be unable to perform production or
industrial work involving repetitive use of the arms and
wrists then he would have transferable skills to sales work
as a result of his past employment. He identified jobs in
this category as paying $6.63 per hour. If this scenario
would occur, claimant would suffer $1.62 per hour or
approximately a 20 percent loss in earnings (ex. 2).
Claimant visited with Mr. Tucker on March 9, 1993. At
this time, he stated his present salary is $8.85 per hour.
Again speculating that should claimant lose his current job
and forced into the competitive job market at $6.63 per
hour, he would lose $2.22 per hour or 25 percent loss of
earnings. (ex. 2).
Page 5
CONCLUSIONS OF LAW
The first issue to be determined is the onset date of
claimant's two injuries.
The record clearly indicates that claimant first
experienced left wrist pain on August 16, 1985. He was
diagnosed by Dr. Redwine and treated conservatively. His
symptoms persisted and a diagnosis of left carpal tunnel
syndrome was made. Dr. Lentini performed surgery on
February 27, 1986. Clearly, the onset date of claimant's
left extremity impairment was August 16, 1985 (ex. 3, p.
29).
As to claimant's right hand and wrist problems, the
record clearly demonstrates that these surfaced on June 20,
1990 (ex. 3, p. 80). Claimant continued to work and was
treated conservatively until August 13, 1990, when Dr.
Pechacek took him off work in order to get him ready for
surgery on August 22, 1990. The record clearly demonstrates
that the onset of claimant's injury occurred on June 20,
1990, when he first reported his symptoms to the company
physician and conservative treatment commenced.
The next issue to be decided is whether claimant's
injuries caused permanent disability.
Since claimant has suffered an injury, the next
question to be resolved is whether the injury has caused a
permanent disability. The claimant has the burden of
proving by a preponderance of the evidence that the injuries
of August 16, 1985 and June 20, 1990, are causally related
to the disability on which he now bases his claim. Bodish
v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl
v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945). A
possibility is insufficient; a probability is necessary.
Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732,
738 (Iowa 1955). The question of causal connection is
essentially within the domain of expert testimony. Bradshaw
v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).
Expert medical evidence must be considered with all other
evidence introduced bearing on the causal connection. Burt,
73 N.W.2d at 738. The opinion of the experts need not be
couched in definite, positive or unequivocal language.
Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).
Moreover, the expert opinion may be accepted or rejected, in
whole or in part, by the trier of fact. Sondag, 220 N.W.2d
at 907. Finally, the weight to be given to such an opinion
is for the finder of fact, and that may be affected by the
completeness of the premise given the expert and other
material circumstances. Bodish, 133 N.W.2d at 870;
Musselman, 154 N.W.2d at 133. The supreme court has also
observed that greater deference is ordinarily accorded
expert testimony where the opinion necessarily rests on
medical expertise. Sondag, 220 N.W.2d at 907.
The uncontroverted, uncontradicted, unrebutted, and
unrefuted medical opinion indicates that claimant's
bilateral carpal tunnel syndrome has caused permanent
disability. Dr. Sprague gave claimant a 10 percent left
Page 6
upper extremity impairment rating and Dr. Kuhnlein gave
claimant a 10 percent right upper impairment rating. These
ratings were based on residuals from carpal tunnel syndrome.
Claimant alleges that the combined disability caused by
his injuries have caused industrial disability which should
be compensated by the Second Injury Fund.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Page 7
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
At the time of his second injury in 1990, claimant was
46 years old. He is a high school graduate and has worked
in the past as a baker, assistant manager of data
processing, office manager, sales representative, and marina
manager. Claimant has worked as a line butcher for employer
since 1982. At the time of his injury in June 1990 he was
earning $8.40 per hour. He currently earns $8.85 per hour.
Claimant does not have a loss of earnings. However, he does
have a minimal loss of earning capacity. He has minimal
physical limitations and is not restricted from performing
his usual job with employer. His complaints of pain,
numbness and weak grip strength are not supported by the
medical evidence. Claimant has not needed medical care or
treatment since he was released to return to work in October
1990.
Based upon the foregoing factors, all of the factors
used to determine industrial disability, and employing
agency expertise, it is determined that claimant sustained a
20 percent industrial disability.
The next issue to be determined is whether claimant is
entitled to Second Injury Fund benefits.
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 335
(Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274
N.W.2d 300 (Iowa 1970).
Page 8
In this instance, there is sufficient evidence to show
that claimant sustained a first permanent injury to his left
wrist/hand in 1985. Claimant sustained a second injury to
his right wrist/hand in 1990. The medical evidence that is
most persuasive indicates that claimant has a 10 percent
functional impairment to his left upper extremity and a 10
percent impairment to his right upper extremity. According
to the Guides to the Evaluation of Permanent Impairment,
third ed. (revised), 10 percent of the upper extremity is an
11 percent impairment of the hand (table 2, page 16).
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
he is fitted. Olson v. Goodyear Service Stores, 255 Iowa
1112, 1121, 125 N.W.2d 251, 257 (1963).
Thus, the calculation of the Fund's liability in this
case is as follows:
20% x 500 weeks=100 weeks
minus ---------20.9 weeks (1985 impairment to left
wrist/hand, 11% x 190 weeks)
minus ---------20.9 weeks (1990 impairment to right
wrist/hand, 11% x 190 weeks)
Total ---------58.2 weeks of liability for Second
Injury Fund
The next issue to be determined is the commencement
date of permanent partial disability benefits.
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).
Healing period benefits may be characterized as that
period during which there is a reasonable expectation of
improvement of a disabling condition and ends when maximum
medical improvement is reached. Armstrong Tire & Rubber Co.
v. Kubli, Iowa App., 312 N.W.2d 60, 65 (1981). In
discussing the concept of healing period as contemplated by
Iowa Code section 85.34(1) (1991), the Kubli court observed
that recuperation refers to that condition in which healing
is complete and the extent of the disability can be
determined. Kubli, 312 N.W.2d at 65. The healing period
Page 9
generally terminates at the time the attending physician
determines that the employee has recovered as far as
possible from the effects of the injury. Kubli, 312 N.W.2d
at 65. When a permanent rating is given, it indicates that
the physician does not expect the claimant to improve and
this conclusion meets the criteria of Iowa Code section
85.34(1) and Thomas v. William Knudson & Sons, Inc., 349
N.W.2d 124, 126 (Ia. Ct. App. 1984). The finding of a
termination of healing period necessarily precludes the
discussion of the running award. Hoskins v. Quaker Oats,
Vol 2. No. 1 Iowa Industrial Commissioner Decisions, 181,
185 (App. 1985). Since the healing period contemplates an
inability to work, a healing period cannot start until
claimant leaves work. This is true even if claimant is
experiencing symptoms on the job but does not leave work for
a variety of reasons. Boyd v. Western Home, file number
890207 (Iowa Industrial Commissioner App. June 26, 1991).
Section 85.34(1) provides that healing period benefits
are payable to an injured worker who has suffered permanent
partial disability until (1) the worker has returned to
work; (2) the worker is medically capable of returning to
substantially similar employment; or (3) the worker has
achieved maximum medical recovery. The healing period can
be considered the period during which there is a reasonable
expectation of improvement of the disabling condition. See
Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa
Ct. App. 1981). Healing period benefits can be interrupted
or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa
1986).
The greater weight of the evidence supports the finding
that claimant was taken off work on August 13, 1990, by Dr.
Pechacek and released to return to work on October 31, 1990.
Therefore, claimant's healing period ended on October 31,
1990, and payment of permanent partial disability benefits
by employer commences on November 1, 1990. The Second
Injury Fund liability begins at the end of the employer's
liability for weekly benefits. Finneman v. Wilson Foods
Corp., file numbers 834479 & 913590 (App. Dec. March 17,
1993).
According to the July 1, 1989, Guide to Iowa Workers'
Compensation Claim Handling, claimant's proper rate of
compensation is $250.68 per week ($373.28 gross weekly wage,
married with five exemptions).
ORDER
THEREFORE, IT IS ORDERED:
That defendants shall pay claimant twenty point nine
(20.9) weeks of permanent partial disability benefits at the
rate of two hundred fifty and 68/100 dollars ($250.68) per
week commencing November 1, 1990.
That the Second Injury Fund shall pay claimant
fifty-eight point two (58.2) weeks of permanent partial
disability benefits at the rate of two hundred fifty and
68/100 dollars ($250.68) per week commencing at the end of
Page 10
the employer's liability for weekly benefits.
That employer/insurance carrier and the Second Injury
Fund each pay one-half of all costs of these proceedings
pursuant to rule 343 IAC 4.33.
That defendant employer/insurance carrier receive
credit for benefits previously paid.
That defendant employer and claimant shall determine
the proper amount of credit for benefits previously paid by
defendant employer.
That all accrued benefits are to be paid in a lump sum.
That interest will accrue on benefits paid by employer
pursuant to Iowa Code section 85.30.
Interest accrues on unpaid Second Injury Fund benefits
from the date of the decision. Second Injury Fund of Iowa
v. Braden, 459 N.W.2d 467 (Iowa 1990).
That defendants file claim activity reports as required
by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of April, 1993.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Paul Deck
Attorney at Law
635 Frances Bldg
Sioux City, Iowa 51101
Mr. Bryan J. Arneson
Attorney at Law
STE 340 Insurance Center
507 7th St
Sioux City, Iowa 51101
Mr. James F. Christenson
Assistant Attorney General
Hoover State Office Bldg
Des Moines, Iowa 50319
Page 1
51402.40 53202 51802
Filed April 2, 1993
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
THOMAS ROBERTS,
Claimant,
vs.
File No. 958248
JOHN MORELL & CO.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
NATIONAL UNION FIRE INS.,
Insurance Carrier,
and
SECOND INJURY FUND OF IOWA,
Defendants.
___________________________________________________________
51402.40
Found that claimant had a 1985 first injury to his left
wrist/hand (not upper extremity) and a second injury in 1990
to his right hand/wrist (not upper extremity).
53202
Second Injury Fund benefits were granted. Claimant
proved a first loss of use of his right hand and a second
loss of use to his left hand. The Second Injury Fund is
responsible for the excess industrial disability over the
combined schedule loss of the first and second injuries.
Their liability in this case is 58.2 weeks.
51802
Section 85.34(1) provides that healing period benefits
are payable to an injured worker who has suffered permanent
partial disability until (1) the worker has returned to
work; (2) the worker is medically capable of returning to
substantially similar employment; or (3) the worker has
achieved maximum medical recovery. The healing period can
be considered the period during which there is a reasonable
expectation of improvement of the disabling condition. See
Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa
Page 2
Ct. App. 1981). Healing period benefits can be interrupted
or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa
1986).
Claimant was taken off work by his treating surgeon on
August 13, 1990, and released to return to work on October
31, 1990. Claimant's healing period ended when he was
released to return to work. The commencement date for
permanent partial disability benefits is November 1, 1990.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
HELEN I. CLAY,
Claimant,
vs.
File No. 958460
DEPARTMENT OF EDUCATION,
A P P E A L
Employer,
D E C I S I O N
and
STATE OF IOWA,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
February 3, 1994 is affirmed and is adopted as the final agency
action in this case.
Defendants shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of June, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Ms. Mary S. Bernabe
Attorney at Law
1150 Polk Blvd
Des Moines, Iowa 50311
Mr. Stephen Moline
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg.
Des Moines, Iowa 50319
5-1108; 5-1803; 5-2206
5-2503; 5-2500; 5-2701
Filed June 23, 1994
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
HELEN I. CLAY,
Claimant,
vs.
File No. 958460
DEPARTMENT OF EDUCATION,
A P P E A L
Employer,
D E C I S I O N
and
STATE OF IOWA,
Insurance Carrier,
Defendants.
____________________________________________________________
5-1108; 5-1803
Found claimant's work injury caused claimant to incur a 25
percent industrial disability.
5-2206
Found claimant's preexisting degenerative disease was
substantially and materially heightened, lighted up and
exacerbated by her August 21, 1990 work injury.
5-2503; 5-2500
Claimant was awarded medical miles and medical bills to be
paid by defendants.
5-2701
Claimant granted alternate care.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
HELEN I. CLAY, :
:
Claimant, :
:
vs. :
: File No. 958460
DEPARTMENT OF EDUCATION, :
A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on December 13, 1993, at
Des Moines, Iowa. This is a proceeding in arbitration
wherein claimant seeks compensation for permanent partial
disability benefits as a result of an alleged injury
occurring on August 21, 1990. The record in the proceeding
consists of the testimony of the claimant, Margaret Hope
Edwards, Dr. Raymond Morley, and Sandra Schmitz; and,
claimant's exhibit 1 through 17 and defendants' exhibit A.
ISSUES
The issues for resolution are:
1. Whether there is a causal connection as to
claimant's alleged permanent disability and her alleged
August 21, 1990 injury;
2. The nature and extent of claimant's permanent
disability and entitlement to disability benefits; and,
3. Whether claimant is entitled to 85.27 medical
benefits, the issues being that treatment wasn't necessary
or reasonable and no authorization, and alternate care.
FINDINGS OF FACT
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant is a high school graduate and is almost 43
years of age and furthered her education at a business
college and obtained an executive secretary diploma in 1969.
She also took some classes at DMACC and obtained a
certificate.
Claimant testified as to her work history before she
Page 2
began working for the State of Iowa in the Iowa Department
of Education in January of 1981 or 1982. Claimant related
she has a hearing defect and is 75 to 90 percent deaf in the
left ear and 5 to 10 percent in the right ear.
Claimant said that over the last 20 years she has had
approximately 38 foster children living with her and also
currently has the care of a senior citizen residing at her
home. Claimant is very active in her church and received
these foster children and a senior citizen by an assignment
through her church. Claimant is a lead minister in her
church and teaches bible class and leads the minister class
and membership class.
Claimant stated that she used to travel around the
state, sometimes three times a week, but doesn't travel now
because of her injury.
Claimant related her positions while working for
defendant employer and her various promotions and jobs
within the department. She was making $398 per week at the
time of her alleged injury.
Claimant said that prior to her August 21, 1990 injury,
she was in good health except she had hearing difficulties
all her life and has arthritis in her hands, knees and
ankles and has high blood pressure and is borderline
diabetic. Claimant has had no back problems.
Claimant acknowledged that in 1983 she had a back
problem resulting from her slipping and she had gone to a
chiropractor six times in an approximate three month period
and had also gone to Ronald K. Bunten, M.D.. She related
that in February 1983, the doctor indicated that if she
needed to come back to let him know. She indicated she
never saw the doctor again for that back problem and has
seen no doctor from 1983 up to her 1990 injury.
Claimant described her slip and fall on the wet floor
on August 21, 1990. She testified that from approximately
20 minutes to one-half hour earlier, she saw a janitor
mopping the floor. She said when she fell her clothes were
all wet as a result of the water on the floor.
Claimant said she had excruciating pain in her low back
and tailbone area. Claimant indicated how long she was off
work for which there was no dispute as to that period of
time. She also indicated the medical attention she sought
including going to a back institute, having physical
therapy, etc. Claimant described the extreme pain she was
in and she had a hard time getting out of bed and doing her
housework. She testified how she cut back on her church
work and traveling. Claimant was taken off work a second
time. There is no dispute as to the periods of time
claimant was off work. Defendants contend that it wasn't as
a result of a work injury but agreed that claimant was off
those periods of time.
Claimant testified as to the medical treatment she
continued to receive which involved several doctors, a
Page 3
neurologist and a chiropractor.
She described her visit with Ronald K. Bunten, M.D., as
lasting five minutes and with Thomas A. Carlstrom, M.D.,
lasting two minutes. She indicated he had her walk around
the room and said he could not operate. She said he then
walked out of the room and she had to ask if he was through
seeing her.
Claimant said that Michael J. Makowsky, M.D.,
discharged her in July of 1992 even though her pain never
had gone away. She said he told her to go ahead and see her
family doctor, Sally M. Pinnick, M.D. He said Dr. Pinnick
saw her through April 1993. She then went to a Dr. Niehaus
(a chiropractor) because she wanted to try someone who she
thought could help her. This chiropractor then suggested
she see a neurologist and claimant then went to Marc E.
Hines, M.D., in Ottumwa, in August of 1993.
Claimant said that Dr. Hines' treatment has helped her
and she wants to continue with him. She indicated she had
another appointment with him on December 15, 1993.
Claimant said that defendant employer's has not paid
Dr. Pinnick's bill or any prescriptions since July 1992, nor
have they paid Dr. Hines' bill.
Claimant stated that she has been overweight her entire
life both before and after her injury. Although she has
been told she has preexisting degenerative problems, she
said she has never had any pain because of it. Claimant
said she has been limited in her work. She stated how the
employer has tried to accommodate her working condition by
rearranging the file and having a secretary help her as far
as filing and reaching and carrying files or boxes of
materials. She said she does not lift any materials that
she takes to conferences and doesn't do much filing now.
She indicated she also has a different chair. Claimant said
she does not believe her back has improved over the last
three years and that she is 50 percent less active now than
she was before her accident.
She acknowledged that she has received a raise since
her injury and is now making $520.10 per week versus $398
before the injury.
She indicated that her personnel record qualifies her
as a supervisor but stated she is not qualified to be a
supervisor because of her back, but if she was okay she
could be one. She indicated that she felt she couldn't be a
supervisor but one must apply and that there has not been an
opening. She acknowledged that the doctors have suggested
she lose weight. She acknowledged that Beverly R.
Rosenfeld, D.O., said that the weight contributes to her
ankle problems, etc. Claimant acknowledged that in 1991,
she was involved in an automobile accident and sprained her
ankle.
Claimant presumed that Dr. Makowsky knew she was
overweight before her injury. She emphasized that she
Page 4
wasn't having any problems at work before her injury and
that she was overweight then. She said she saw no doctor
between 1983 up to her injury in 1990 for her back.
Margaret Hope Edwards testified she worked for the
Department of Education and has worked as a secretary for 20
years and worked with claimant since 1989. She said she did
not know the claimant before she began working for her. She
emphasized she works very closely with the claimant. She
said she began working in the claimant's department in June
of 1989 and recalled the day claimant fell. She said
claimant was able to do more than she is able to do now.
She indicated claimant cannot get into the bottom drawer or
carry a lot of heavy boxes or supplies outside the office.
She said claimant could do everything anyone else could do
and never complained of any problems prior to her 1990
injury.
She emphasized claimant is a very thorough, precise and
dedicated worker. She is on time and if she has a question
she goes to the claimant and claimant helps her. She said
claimant speaks her mind and is very friendly and is well
respected in and out of the office. She is a compassionate
and caring individual. Claimant is the type of person you
can discuss problems with, talk to and she will listen.
Claimant will give ideas on how to do the work. She said
claimant is not a complainer and had no problems before her
injury in August 1990.
She recalled the day claimant fell and was injured.
She indicated the floor was wet and had just recently been
mopped.
Ms. Edwards said that while claimant was recuperating
at home she took work home and when claimant was done, she
would call her to pick it up. She said that claimant now
does not appear to be the same person as before her injury.
She indicated claimant cannot do what she used to do and
described what those particular things were. She has
observed claimant being in pain and it continues to the
present.
Ms. Edwards said claimant is motivated and did
everything. She loves to cook. She was active in church
affairs and has now cut back. She believes claimant is in
pain and emphasized that claimant is a very honest person.
She stated the claimant is gradually getting worse in her
opinion and that if she was going through what the claimant
is going through she would have given up.
Raymond E. Morley, has a Ph.D in education and has
worked in the Department of Education since 1971. He has
worked with claimant and has known claimant since 1980. He
said claimant was his secretary from 1982 until the present
and he is one of her supervisors. He said claimant has very
good work habits. He said she is very competent, diligent
and gets the job done and puts in extra time. He said she
is personally committed to her work and does an excellent
job and emphasized that at times she actually does better
work than the professional staff. He has worked very
Page 5
closely with the claimant daily and now works with her on a
part-time job and also works with Mary Edwards. He said
that claimant oversees Ms. Edwards.
He said claimant appeared to have no back problems
before her 1990 injury and that she never complained of any
back problems nor had he observed any physical limitations
except for her hearing. He was aware of claimant's 1990
work injury and was aware claimant was off work. He
indicated claimant did work at home and that she is a person
who likes to get work done and took work home with her. He
has observed claimant after her injury and noticed the
problems she is having and testified in detail as to this.
He said claimant isn't back to her old self since her fall
in 1990. This witness went on to testify considerably more
as to claimant and he had nothing but praise for this
claimant and supported the fact that claimant is injured and
has been suffering from this 1990 injury. The undersigned
sees no reason to set out in any more detail his testimony.
Sandra Schmitz testified that she works for the
Department of Education as a special education consultant
since July 1987 and has worked for the claimant. She was
her secretary and has known claimant since 1987. This
witness, like the previous two witnesses, had nothing but
good remarks and high praise for the claimant. Her
testimony was basically the same as the prior two witnesses,
Dr. Morley and Ms. Edwards. The undersigned sees no reason
to set out in detail her testimony. Like the testimony of
Dr. Morley and Ms. Edwards, there was no cross-examination
of Ms. Schmitz's testimony either.
The undersigned can see why defendants did not further
question them as these three witnesses could not have been
more praiseworthy of this claimant who is obviously a very
dedicated state employee, an employee of which the state
should be proud and should do everything to try to keep her
employment with the state.
Marc E. Hines, M.D., testified through his deposition
(Claimant's Exhibit 9) on December 7, 1993. He is a
neurologist and first saw claimant on August 5, 1993 for
referral from her doctor, Gary Niehaus. He related the
history claimant gave him and also his understanding of
various medical treatments she has had. He indicated
claimant also had a long history of degenerative disease.
He indicated she had a little back trouble pursuant to an
injury in 1983 and then the accident she had in 1990 which
seemed to have light up or worsen the degenerative problem
through the mechanism of the lumbosacral strain, muscle
spasm and joint pain. He understood she was asymptomatic
prior to her 1990 injury and her medical records supported
this. He indicated claimant seems very motivated and wanted
to try anything that would give her a likelihood of
improvement.
The doctor referred to his report of October 20, 1993,
in which he sets out his opinion and he opined in his
deposition that claimant's fall on August 21, 1990 has
resulted in a permanent injury to claimant. He further
Page 6
opined that claimant's injury is primarily an exacerbation
of degenerative disease of the back such as she has muscle
spasms and lumbosacral strain with chronic low back pain and
difficulties with some exacerbation and neck pain as well
(Cl. Ex. 9, p. 23). He further opined that claimant had an
overall impairment of 25 percent of the body as a whole
under the AMA Guides to the Evaluation of Permanent
Impairment, revised third edition. He also opined that
claimant would not be able to participate in repetitive
bending, repetitive stooping, squatting, crawling, climbing
or other activities that would put a constant repeat of
strain on her back. He did not feel she could sit in the
same position without moving for more than 30 minutes
without rest or ability to get up and move around. He
indicated she should not lift more than 40 pounds in any
position at any time and no more than 20 pounds repeatedly.
She should not lift more than one or two hours out of any
work day even with those restrictions. He related the cause
of all these restrictions is the result of her accident in
1990. (Cl. Ex. 9, pp. 25-28)
Dr. Hines disagreed with Dr. Makowsky's opinion that
claimant's residual problems are simply related to her
degenerative disease and that the doctor feels claimant has
gotten better. He agreed with the doctor that claimant was
injured. Dr. Hines also disagreed with Dr. Makowsky's
opinion that claimant's overweight and preexisting
degenerative problem is causing her pain and not the fall at
work in August 1990. (Cl Ex. 9, p. 32)
The doctor continued to explain not only the
disagreement with Dr. Makowsky but elaborated on the fact
that it is undisputed that medically claimant had an
exacerbation of a preexisting degenerative condition and
that she was overweight before the injury and after the
injury. He emphasized that there was nothing that
intervened other than her injury that caused the
exacerbation and the continuation of the same. He
emphasized that for logical reasons as well as common sense
he sees it as not logical to ascribe the obesity and
degenerative changes as a sole source of the causes of
claimant's current problems when originally the problem was
due to the accident and exacerbation and that there is no
alternative discussion or explanation of why claimant's
problems should change since her 1990 injury. Claimant was
not having any prior problems and that the only cause of the
lighting up of the degenerative disease is her injury.
There is no dispute that degenerative disease is not caused
by an injury as that develops over a course of one's life
but it is also common knowledge that one can have
degenerative disease and has had no effects of it until an
injury occurs. It is obvious from Dr. Hines' testimony that
this is the situation with claimant. (Cl. Ex. 9, pp. 33-37)
Michael J. Makowsky, M.D., testified through his
deposition on December 7, 1993. (Cl. Ex. 7)
The undersigned sees no reason to go into detail on Dr.
Makowsky's deposition as it is basically summed up in his
comment in his August 30, 1993 letter (Def. Ex. A) in which
Page 7
he indicates that it was his medical opinion that these
severe degenerative changes of claimant's back did not occur
as a result of a work-related injury. He conceded that
claimant's fall would result in some temporary aggravation
but not a permanent aggravation. He mentioned that claimant
has obesity as a risk factor.
The undersigned finds that Dr. Hines is the more
credible doctor and based on agency experience and common
sense, the one facing the reality of the facts of this case.
It appears Dr. Makowsky adheres to the theory that if one
has degenerative disc disease, even if it wasn't affecting
the person, the mere fact they have it, even if it is
exacerbated, cannot result in a permanent work injury
impairment or disability because of the fact that it
preexisted even though it was latent. It appears he also
adheres to the theory that one's overweight condition
materially or solely contributed to degenerative disease or
one's impairment or disability resulting therefrom. Even
though the person was as heavy before the injury as after
the injury and she was having undisputed no prior problems,
the undersigned believes the doctor's conclusions are
contrary to what this agency's experience is. This agency
has seen time and time again that you can have an individual
with degenerative disc disease who has had no problems and
an injury materially and substantially exacerbated and
heightens and light up said disease and that in fact this
can be caused by a work injury and result in a permanent
impairment. Claimant's exhibit 2 is Dr. Makowsky's medical
records on the claimant.
Dr. Makowsky referred claimant to Dr. Carlstrom who saw
claimant on September 27, 1990, at which time he thought
claimant would have a long-term problem and suspected there
would be some permanency. He suggested claimant should
continue her therapy which she did for several weeks. (Cl.
Ex. 3, pp. 1-7)
Claimant's exhibit 6 contains as part of said exhibit
eight pages in which there is reference time and time again
that there is a work-related injury and these documents
cover several months into 1992. These appear to be all
signed by Dr. Makowsky. These documents were covering a
period of a year and one-half to two years after claimant's
injury. The undersigned is curious as to why in 1993 in Dr.
Makowsky's letter and deposition he now takes the position
that claimant's problems are not work related. It seems
totally inconsistent to the undersigned as well as
illogical.
Claimant's exhibit 8, pages 1 through 3, is Dr. Hines'
report. This supports his testimony and deposition plus it
shows that claimant's injury was in 1990 even though in the
doctor's deposition, at least as transcribed, he was
referring to an August 1992 injury when obviously he was
meaning August 1990. Pages 8 and 9 of claimant's exhibit 8
is Dr. Hines' letter in which he sets out claimant's 25
percent permanent impairment and also her restrictions.
Claimant's exhibit 16 is entitled "Resume" and contains
Page 8
a lot of claimant's personnel records, etc. Without going
into detail, it is obvious claimant is highly thought of by
people with whom she has been employed and is looked upon as
an excellent employee wherever she has been. Claimant's
exhibit 17 is claimant's employment history and education
summary, etc.
There is no dispute that claimant was injured in the
course of her employment on August 21, 1990. The
undersigned finds that claimant was off work August 19, 1991
through August 26, 1991, and January 8, 1992 through January
13, 1992, which totals two weeks.
The major dispute in this matter is whether claimant's
permanent disability and impairment is causally connected to
her August 21, 1990 injury. The doctors disagree as to the
permanency issue. As indicated earlier, the undersigned
believes Dr. Makowsky's conclusions and opinions are
unacceptable and are not in the mainstream of medical
thought in this agency's experience and that Dr. Hines'
medical opinion is the most credible and acceptable. The
undersigned therefore finds that claimant did incur a
permanent impairment which Dr. Hines opined was a 25 percent
body as a whole and that this impairment was the result of
claimant's August 21, 1990 work injury.
The undersigned finds that claimant has a considerable
amount of restrictions. Claimant had glowing reports on her
testimony as to her work ethics, motivation, willingness to
work and ability to work. Prior to this injury, claimant
was thought of as an ideal employee with no evidence of any
injuries, back problems, impairments except for her hearing
deficiency. The evidence is undisputed that since
claimant's injury, she has noticeably needed to cut back on
her activities at work and otherwise and has been unable to
do the work to the extent she originally did it. She has
trouble bending, sitting and doing her work. The
undersigned believes claimant is very credible as well as
the witnesses who testified for her.
As indicated earlier, this claimant appeared to have
been the ideal state employee prior to her August 21, 1990
injury, as well as an outstanding citizen both civilly and
religiously and has been touted as being a very honest,
helpful, compassionate individual.
The records clearly show that claimant is overweight,
both before and after the injury, but there is no evidence
that this weight situation changed. There is also evidence
that claimant had a preexisting degenerative condition
before and after her injury and that it was inactive prior
to her injury and became materially and substantially
exacerbated, lighted up, heightened and aggravated as a
result of her August 21, 1990 injury and the undersigned so
finds.
The claimant has not lost any income comparing what she
is currently making and what she was making at the time of
her injury, but claimant is fortunate to be such a welcomed
state employee that she continues to maintain her job
Page 9
position and has many others helping her to get along due to
her deficiencies caused by her August 21, 1990 injury. If
it weren't for the employee record she has made and those
who know her on the job, there is not the likelihood
claimant would be hired or her condition would be put up
with by any new employer knowing claimant's limitations and
restrictions resulting from her August 21, 1990 injury. The
claimant is not the same person as she was before and
therefore has a loss of earning capacity.
Taking into consideration claimant's medical and work
history prior to her injury and after her injury; her
education; age; motivation; location and severity of her
injury; the fact that the defendant employer is
accommodating her; and all of those other items that are
considered in determining one's industrial disability, the
undersigned finds that claimant has a 25 percent industrial
disability which was caused by her August 21, 1990 work
injury.
As to the 85.27 medical issue, the undersigned finds
that claimant's medical treatment was causally connected to
her work injury and that it was reasonable and that it did
help her. The undersigned finds that defendants are
responsible for all of the medical bills that are in dispute
in this case. Defendants shall pay said medical bills.
Claimant can continue to see Dr. Hines at defendants'
expense as he seems to have a better grasp of claimant's
medical condition and most likely can give her unbiased care
and judgment in her medical treatment.
Claimant indicated there were 1,731 medical miles
payable by defendants if causal connection is found and that
the parties indicate that only 610 of this amount is in
dispute. The parties further agree that if industrial
disability is found, all the mileage is to be paid. The
undersigned therefore finds that defendants are responsible
for payment of all of claimant's medical mileage which
totals 1,731 of which apparently all but 610 has currently
been paid.
CONCLUSIONS OF LAW
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
Page 10
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).
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
Page 11
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. 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).
Apportionment of disability between a preexisting
condition and an injury is proper only when some
ascertainable portion of the ultimate industrial disability
existed independently before an employment-related
aggravation of disability occurred. Bearce v. FMC Corp.,
465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v.
Sumner, 353 N.W.2d 407 (Iowa 1984). Hence, where employment
is maintained and earnings are not reduced on account of a
preexisting condition, that condition may not have produced
any apportionable loss of earning capacity. Bearce, 465
N.W.2d at 531. Likewise, to be apportionable, the
preexisting disability must not be the result of another
injury with the same employer for which compensation was not
paid. Tussing v. George A. Hormel & Co., 461 N.W.2d 450
(Iowa 1990).
The burden of showing that disability is attributable
to a preexisting condition is placed upon the defendant.
Where evidence to establish a proper apportionment is
absent, the defendant is responsible for the entire
disability that exists. Bearce, 465 N.W.2d at 536-37;
Sumner, 353 N.W.2d at 410-11.
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Iowa Code section 85.27.
Holbert v. Townsend Engineering Co., Thirty-second Biennial
Report of the Industrial Commissioner 78 (Review-reopen
1975).
It is further concluded that:
Claimant incurred a 25 percent industrial disability as
Page 12
a result of her August 21, 1990 work injury.
Claimant's preexisting degenerative disease was
substantially and materially aggravated, exacerbated,
heightened and lighted up as a result of her August 21, 1990
work injury and that any preexisting condition claimant
previously had was in a latent or inactive condition until
her August 21, 1990 work injury.
Claimant is a very credible witness as are her
witnesses.
Defendants are responsible for claimant's medical bills
and medical mileage.
Claimant is entitled to continue to see Dr. Hines at
defendants' expense when medically necessary.
ORDER
THEREFORE, it is ordered:
That defendants shall pay unto claimant healing period
benefits at the rate of two hundred fifty-six and 03/100
dollars ($256.03) for the period of August 19, 1991 through
August 26, 1991 and January 8, 1992 through January 13,
1992, encompassing two (2) weeks.
That defendants shall pay unto claimant one hundred
twenty-five (125) weeks of permanent partial disability
benefits at the rate of two hundred fifty-six and 03/100
dollars ($256.03) beginning August 27, 1991 and then
interrupted for approximately eight (8) days and then again
continuing from January 14, 1992 until paid.
That defendants shall pay or reimburse claimant for the
medical expenses that are at issue herein and pay claimant
for her medical mileage which totals one thousand seven
hundred thirty-one (1,731) miles to which the undersigned
understands six hundred ten (610) miles is currently
outstanding at the mileage rate of 21 cents per mile.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid. It appears the defendants
have paid eight point two eight six (8.286) weeks of
benefits at two hundred fifty-six and 03/100 dollars
($256.03) for healing period as set out in the hearing
report.
That defendants shall pay claimant's medical bills
which per hearing report indicates the total requested
medical benefits are two thousand eighty-six and 94/100
dollars ($2,086.94), as set out therein and attached to the
hearing report.
Claimant is entitled to the alternate care as set out
herein.
That defendants shall pay interest on benefits awarded
Page 13
herein as set forth in Iowa Code section 85.30.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of February, 1994.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Ms Marry S Bernabe
Attorney at Law
1150 Polk Blvd
Des Moines IA 50311
Mr Stephen Moline
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg
Des Moines IA 50319
5-1108; 5-1803; 5-2206
5-2503; 5-2500; 5-2701
Filed February 3, 1994
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
HELEN I. CLAY, :
:
Claimant, :
:
vs. :
: File No. 958460
DEPARTMENT OF EDUCATION, :
A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1108; 5-1803
Found claimant's work injury caused claimant to incur a 25%
industrial disability.
5-2206
Found claimant's preexisting degenerative disease was
substantially and materially heightened, lighted up and
exacerbated by her August 21, 1990 work injury.
5-2503; 5-2500
Claimant was awarded medical miles and medical bills to be
paid by defendants.
5-2701
Claimant granted alternate care.
2501; 2700; 2906
Filed August 5, 1993
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
HELEN I. CLAY,
Claimant,
File No. 958460
vs.
D E C I S I O N O N
STATE OF IOWA, DEPT. OF
EDUCATION, A P P L I C A T I O N
Employer, F O R A L T E R N A T E
and M E D I C A L C A R E
STATE OF IOWA,
Insurance Carrier,
Defendants.
___________________________________________________________
Claimant filed a petition for alternate medical care on July 9,
1993. In her petition, claimant requested continued medical care
from Dr. Michael McKowsky or Dr. Sally Pinnick.
On July 15, 1993, the hearing administrator filed a notice of
telephone hearing. The matter was set for a telephone hearing on
July 21, 1993 at 10:30 a.m.
On July 20, 1993, the hearing administrator received two separate
telephone calls from the respective parties. Each side desired a
continuance of the telephone hearing. Because the undersigned
deputy was unavailable, the hearing administrator referred the
matter to the industrial commissioner. He, in turn, ruled on the
verbal requests for a continuance. The industrial commissioner
continued the matter. Then on July 21, 1993, the undersigned
deputy filed a ruling on the motion for continuance. The ruling
reiterated the industrial commissioner's earlier determination.
The matter was then rescheduled for July 27, 1993 at 10:30 a.m.
The telephone hearing took place on the rescheduled date. During
the hearing, claimant amended her request for alternate medical
care to include not only care by Dr. Makowsky and Dr. Pinnick,
but also care by Gary Neehaus, D.C., and by Marc Hines, M.D., a
neurologist.
Defendant denied continued care through Dr. Makowsky as he had
released claimant from treatment as of July 8, 1992. Defendant
argued that any care subsequent to July 8, 1992 was care which
was not causally connected to the work injury.
HELD:
Defendant was ordered to provide claimant with a follow-up
appointment with Dr. Makowsky. Defendant was also ordered to pay
the reasonable and necessary medical expenses incurred as a
result of Dr. Makowsky's treatment, so long as the treatment was
causally connected to the work injury. Defendant was not
required to provide claimant with treatment from Dr. Pinnick, the
claimant's family physician, Dr. Neehaus, a chiropractor, or with
Dr. Hines, a neurologist in Ottumwa.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DALE AUSTIN, :
:
Claimant, :
:
vs. :
: File No. 958511
VAN DEN BERG, formally :
SHEDD'S FOOD PRODUCTS, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
NATIONAL UNION FIRE :
INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on July 2, 1993, at
Council Bluffs, Iowa. This is a proceeding in arbitration
wherein claimant seeks compensation for permanent partial
disability benefits as result of an injury occurring on
September 23, 1988. The record of proceeding consists of
the testimony of the claimant, claimant's wife and James
Rogers and joint exhibits 1-23 and claimant's exhibit 24.
ISSUE
The only issue for resolution is the extent of
claimant's industrial disability, if any.
FINDINGS OF FACT
The undersigned deputy, having heard the testimony,
considered all the evidence finds that:
Claimant is a 49-year-old, whose formal education
extended through the eighth grade and he has obtained his
GED. Claimant started his freshman year of high school but
then dropped out in 1959 as he had a strong desire to be a
truck driver. Claimant has been a truck driver all his
working life. He related his work history which involved
driving a truck and delivering for various companies prior
to beginning work for Shedd's Food Products in October 1972.
Shedd's Food Products then changed its name approximately
four years ago to the Van den Berg name. Claimant indicated
his job has remained the same during his employment with
defendant employer and the company has remained basically
the same.
Claimant described his employer as being in the
business of manufacturing margarine of various brands and
Page 2
delivering it to various places. It has centers around the
country. Claimant began in Omaha and when that Omaha plant
closed he was unable to transfer but was rehired at the
Kansas plant. It appeared that he more or less started over
as to any seniority at the Kansas plant because it wasn't
considered a transfer. He was getting better benefits at
the Omaha plant than after his rehiring by the Kansas plant.
Claimant is paid pursuant to a union contract based upon the
mileage and a drop off fee.
Claimant is subject to a seniority system and he is
currently number three in seniority. He described how the
seniority system works which allows one to pick the load and
this affects what he can earn. He described the type of
load that is more profitable is the longer load and also the
delivery time and locations so that one can be back in line
for another load at the best possible time in order to
exercise your seniority. In 1988, claimant was number four
in seniority.
Claimant described what his job involves besides
driving a truck. He indicates that he must unload the truck
or hire someone to unload it and must make sure it is
unloaded on the dock as desired by the customer. He
indicated that when one delivers to their own plant then a
driver need not unload it as it is unloaded for him. If
claimant is to do the unloading he is entitled under the
union contract to a $40.00 drop-off fee and the driver keeps
that $40.00. This $40.00 is part of his earnings. If the
claimant must hire someone to unload it he must pay that
person, who is referred to as a lumper, out of his own
pocket.
Prior to his injury on September 23, 1988, claimant
would bid for the longest load he could take as these were
the most profitable. He then could drive 500 miles and then
have someone unload the truck while he slept and then be
ready to proceed with the next load for long trip.
Claimant's exhibit 24 shows the unloading fees comparison.
Claimant indicated that right before his injury he paid
$3,000 to $3,500 a year in fees to lumpers and the first
eight months of 1990 he paid $2,408.
Prior to his 1988 injury, claimant indicated he had no
health problems or broken bones. He indicated he was in a
car accident in 1969, and had had gall bladder surgery and
carpal tunnel release. None of these are affecting or
pertinent to this case herein. Claimant had no work
limitations prior to his injury and could recall no time off
for any injury in his 21 years working for the defendant
employer. Claimant was asked considerable questions by the
defendant as to his weight which is 265 pounds now and at
the time of the accident was 280 pounds. It has been as
high as 300 and possibly 310, even though claimant could not
recall it being that high. It has been down as low as 240.
The undersigned sees no importance as to this weight
situation as relates to this case.
Claimant described how his accident happened on
September 23, 1988. Basically, he was climbing the truck to
Page 3
open the front air vents as he had washed the trailer and
wanted air to run through it. In stepping down after
opening a front vent, the step on the trailer broke and
claimant grabbed a handle on the trailer and swung around
and was temporary suspended and this resulted in his
injuries. Joint exhibit 16 and 17 are pictures reflecting
the handles and the broken step that claimant referred to.
Claimant then described the events that took place
thereafter which basically was driving back and returning
the truck, going to the hospital and seeking medical care.
He indicated that he wasn't even able to go up the stairs to
the defendant's office. Claimant described the nature of
his care and the medical problems he was having as a result
of his injury. The undersigned sees no necessity in light
of the stipulation in this case and the sole issue of the
extent of disability to go into any further detail as to
these items concerning claimant's testimony.
Claimant indicated that prior to his September 1988
injury he had no problem lifting 100 pound. Now he
indicates if he starts to lift it hurts and he hires lumpers
much more. Claimant's exhibit 24 reflects the expenses for
lumpers that he has had to pay since his injury. As
indicated thereon the expense has in many instances doubled
or more than doubled. Prior to his injury it was ranging
from $3000 to $3543 and since his injury and his return to
work for the full year it has averaged $5140 to $8180.
Claimant indicated that he has had to pass good loads to the
person lower than him in seniority because of his medical
condition. He emphasized again that the seniority and the
ability to pick loads affects his income. Claimant desires
to stay with his job, but he indicated that the lumpers are
now getting much more expensive ranging from $80 to $100.
Claimant was asked on cross-examination concerning his
high blood pressure and breathing problems he has had but
claimant acknowledged these do go along with his weight
situation that has varied. He indicated he has always been
a big person. Claimant indicates that these problems had
not affected him prior to his injury and are not now
affecting his ability to perform his job. He says these
situations also do not affect his ability to unload. He
emphasized that his breathing problems basically have not
kept him from work. He said the last time he had pneumonia
which was related to some of his problems was in December
1991, in which case he was in the hospital one and a half
weeks.
Lois Austin, claimant's wife, testified as to
claimant's physical condition after the accident. She
indicated that he is sore after driving and she applies hot
packs, infra red massage and he uses a hot tub. She
emphasized he now needs much more attention every week. She
indicated that she didn't have to do this prior to his
September 1988 injury. She indicated claimant now suffers
when he lifts and he does not have the lifting strength he
used to have and that his shoulder is the worst part.
Page 4
James Rogers testified that he is a self-employed
rehabilitation consultant. He has been in his business
since 1986. For 17 years prior to that he worked for the
state of Colorado. He indicates he represents injured
workers and is hired by attorneys and insurance companies.
His goal is to get people back to work, provide vocational
rehabilitation tests and talk to employers. Mr. Rogers
indicated he received this assignment prior to January 6,
1992 to evaluate the claimant and make an earning capacity
assessment. He interviewed claimant. He reviewed
claimant's medical and educational history and opined that
claimant suffered a twenty to thirty percent loss of earning
capacity. The undersigned believes that this witness's use
of the words " earning capacity" is more on the basis of
loss of earnings as it is within the sole authority of the
deputy to determine a loss of earning capacity which is the
extent of claimant's industrial disability. He went over
various items to show how he determined this, which included
looking at the increased loading fees, the lifting
restrictions of 20-25 pounds, etc. He emphasized that he
was not determining claimant's industrial disability. Mr.
Rogers also testified as to what it might be if claimant
lost his job, etc. Of course, this is speculating and this
testimony is of no importance. The undersigned cannot and
will not speculate. We take the facts as they currently
exists and do not anticipate claimant losing his job. He
did indicate that claimant would have a problem obtaining
another truck driving job due to his condition. He
indicated that trucking positions in the country are good
and that union positions are fewer and fewer. This witness
does not tie in the current law concerning American with
Disabilities Act as it relates to obtaining a job or ability
to be hired. The fact is, claimant is driving a truck now
and doing his job and desires to stay with it.
Mr. Rogers acknowledged that it was only today that he
was aware of any health problems claimant has had, mainly
the high blood pressure and breathing and pneumonia. He
emphasized that had he known that when he did his
evaluation, that would not have affected his opinion or
testimony.
Joint exhibit 2 is Mr. Roger's report. The figures
therein have been corrected through his testimony and is
represented by claimant's exhibit 24 concerning certain
income and expenses where applicable.
A January 20, 1992 report of Robert P. Bruce, M.D.,
orthopedic surgeon, reflects an opinion that claimant had a
fifteen percent impairment to the body as a whole as a
result of claimant's chronic impingement syndrome and
possible partial rotator cuff tear. This evaluation was
done upon request of the insurance carrier for a second
opinion. The doctor opined causal connection of this
condition to claimant's September 1988 injury.
Roger W. Hood, M.D., an orthopedic surgeon, opined on
November 20, 1992 in a report, that claimant had a thirteen
Page 5
percent whole body permanent partial impairment and he
placed various impairment percentages based on claimant's
chronic rotator cuff tendinitis, his low back complaints and
the persistent click in his wrist even after his carpal
tunnel surgery.
Joint exhibit 4 is a November 15, 1991 report by David
G. Smithson, M.D., associate medical director of the
Mid-America Rehabilitation Hospital. He opines that
claimant has a fifteen percent impairment of the whole
person based on his lumbar myofascial pain syndrome, his
degenerative changes and claimant's chronic pain problems
associated with these problems. Dr. Smithson emphasized
that this fifteen percent body as a whole impairment does
not include the impairment due to claimant's right shoulder
which was previously rated by his orthopedist nor does it
include the impairment due to his carpal tunnel release.
Joint exhibit 6 and 7 are reports from Peter C. Boylan,
M.D., issued in 1989. He makes certain permanent impairment
opinions in these reports. There are no more recent
impairment reports from this doctor and it would appear to
the undersigned that the other more recent reports referred
to give a more up-to-date status concerning claimant's
condition and the impairments to the body as a whole.
Joint exhibits 20 and 22 are letters from Dr. Hood, an
orthopedic surgeon. He refers to claimant's right hand
pain. He concludes on his May 11, 1993 letter, that this in
his opinion, is a new injury. The undersigned is not
considering any new complaint in this decision and does not
consider any new problem if any with claimant's right wrist
as reflected by Dr. Hood and is not considering in any way
the right wrist in this decision.
The only issue in this case is the extent of claimant's
industrial disability. There are various medical opinions
as to the extent of claimant's permanent impairment to his
body as a whole. It appears claimant currently has a weight
restriction. It would seem from the evidence to still be a
50 pound weight lifting restriction, and a recommendation of
no repetitive lifting of greater than 25 pounds and
avoidance of working with his right arm overhead. These
restrictions referred to above were in a 1989 report of Dr.
Boylan. The undersigned believes in looking at all the
medical evidence that claimant does have or should honor
some weight limitations. It is obvious due to the fact of
his substantially increased unloading (lumper's) fees.
The undersigned finds taking into consideration
claimant's age, his work history and medical history prior
to his September 23, 1988 and after that injury, his present
condition, his healing period, his education, wages prior to
the injury and after the injury, taking into consideration
his increased expenses because of that injury, the location
and severity of his injury, restrictions, permanent
impairment, permanent functional impairment and the fact
that the employer is accommodating him and continuing him in
his employment, the undersigned finds that claimant has
Page 6
incurred a 25 percent industrial disability.
CONCLUSIONS OF LAW
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
Is further concluded that claimant incurred a 25
percent industrial disability which arose out of and in the
Page 7
course of employment on September 23, 1988 and which work
injury caused claimant to incur healing period and the
permanent partial disability which disability payments shall
begin July 8, 1989 at the rate of $367.90.
ORDER
IT IS THEREFORE ORDERED:
That defendants shall pay unto claimant one hundred
twenty-five (125) weeks of permanent partial disability
benefits at the rate of three hundred sixty-seven and 90/100
dollars ($367.90) beginning July 8, 1989.
That defendants shall pay the accrued weekly benefits
in a lump sum and shall receive credit against the award for
weekly benefits previously paid. Defendants have previously
paid ninety-one (91) weeks of benefits, but forty-one (41)
weeks were healing period, therefore there is a credit
against the permanent partial disability of fifty (50)
weeks.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendants file claim activity reports pursuant to
rule 343 IAC 3.1
Signed and filed this ____ day of July, 1993.
________________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Page 8
Copies To:
Mr Dennis M Gray
Attorney at Law
233 Pearl Street
PO Box 1078
Council Bluffs Iowa 51502
Mr James E Thorn
Attorney at Law
310 W Kanesville Boulevard
PO Box 398
Council Bluffs Iowa 51502-0398
5-1803
Filed July 30, 1993
BERNARD J. O'MALLEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DALE AUSTIN, :
:
Claimant, :
:
vs. :
: File No. 958511
VAN DEN BERG, formally :
SHEDD'S FOOD PRODUCTS, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
NATIONAL UNION FIRE :
INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
Claimant awarded 25 percent permanent partial disability
benefits which resulted in 75 more weeks than had already
been paid.