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before the iowa industrial commissioner
____________________________________________________________
:
TERESA CRONICAN, :
:
Claimant, :
: File Nos. 959311
vs. : 959312
:
MERCY HOSPITAL, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant. :
:
___________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on January 30, 1992, at
Council Bluffs, Iowa. This is a proceeding in arbitration
wherein claimant seeks compensation for temporary partial
disability and medical benefits and a transfer of care as a
result of alleged injuries occurring on March 16, 1989 and
September 25, 1989. The record in the proceedings consist
of the testimony of claimant and joint exhibits 1 through
55.
issues
The issues for resolution are:
1. Whether claimant is entitled to temporary partial
disability benefits for the period beginning August 23, 1991
to the present;
2. Whether claimant's temporary partial disability,
medical bills and eating disorder are causally connected to
her injuries of March 16, 1989 and/or September 25, 1989;
3. Whether claimant is entitled to 85.27 medical
benefits. These bills are set out in exhibits 47, 48 and 49
and are related to claimant's eating disorder. Within this
issue is whether claimant is entitled to care and treatment
for her eating disorder and whether claimant is entitled to
have pain clinic treatment and, if authorized, whether that
pain clinic care should be transferred to the University of
Nebraska's pain management clinic at defendant's expense.
The parties agreed that if causal connection is found in
this case it would resolve the medical bills currently in
dispute.
The issue of permanency has been bifurcated.
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findings of fact
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant is a 25-year-old high school graduate who also
has a degree in therapeutic recreation from the College of
St. Mary's. She currently is enrolled in a dependent
counseling program at Metro Community College and is
attending the University of Nebraska, Omaha, program in
counseling. Claimant worked part-time as a work study while
in college and later worked beginning in 1986 at Mercy
Hospital part-time. Her position was as a recreational
therapeutic assistant working with mental health patients,
both adults and adolescents, in skilled nursing care and
chemical dependency. Upon her graduation from the College
of St. Mary's in May of 1988, defendant employer offered
claimant a full-time job as a therapeutic recreation
specialist and claimant eventually was switched to a
certified therapeutic recreation specialist. Her job was
primarily working with the chemically dependent among adults
and adolescents. She related her basic duties in this
position.
Claimant recalled what happened on March 16, 1989, in
which she landed on the side of her right foot and ankle and
fell to the floor in pain. At the time of this injury, she
was working with patients of the defendant employer playing
basketball. She indicated she weighed approximately 135
pounds and was 5 feet 10 inches tall at that time. Although
claimant worked the next two days, she related that her
ankle was getting worse with increasing pain and was still
swelling up. She went to the emergency room at Mercy
Hospital in Council Bluffs. Claimant related her medical
treatment. She was put on crutches and therapy and
medication were prescribed. Claimant continued to work
while on crutches but was not getting any better, so
eventually defendant employer called in an orthopedic
specialist, a Dr. Agarwal. After reviewing the x-rays, the
doctor put claimant in a hard cast covering the edge of her
toes up to below the knee.
Claimant continued working full days. Some time around
May of 1989, claimant saw Dr. Agarwal for the last time and
indicated she became very upset by the information the
doctor gave her. She said he indicated to her that she
would probably never again walk normal and suggested she go
for a second opinion. Claimant sought a second opinion from
Timothy C. Fitzgibbons, M.D., an orthopedic specialist in
Omaha, Nebraska. She first saw Dr. Fitzgibbons around June
6, 1989. She indicated that her right ankle and leg was
very swollen, discolored and was highly sensitive to a point
where claimant indicated even a brush such as with a piece
of paper would cause intense pain in her foot. Claimant
indicated a series of nerve blocks was recommended as it
appeared she had a reflex sympathetic dystrophy.
Claimant testified that during this period of time from
March 16, 1989 to June 6, 1989, she was in immense pain and
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her eating habits changed whereby she had no appetite and
nothing sounded good to eat and they really changed after
the doctor told her she would never walk normal again in her
life. She emphasized that she had no desire to eat and her
total concentration was trying to rehabilitate the ankle.
She indicated she was nor purging but just did not eat or
think about eating and her weight dropped approximately 15
to 20 pounds.
Claimant indicated that a Dr. Rosenberg performed three
separate series of nerve blocks on an outpatient basis at
Bergan Hospital. She indicated the nerve blocks are a
series of shots done on three separate days and are done
toward the right side of her back, the first series being to
the mid or lower back, the second the mid-back to the hip,
and the third was an epidural block in the spine. Claimant
related some of the problems that resulted from the shot in
her spine. Claimant described the problem she was
continuing to have (Tr., p. 28). Eventually, it was
suggested to the claimant that she see a nutritionist. She
believed it was Thomas E. Connolly, M.D., that suggested it.
Claimant then was put on a calorie system that works off of
points and she had a calorie target. She indicated that if
she did not eat as required, they would supplement her diet
with "Ensure" which is a high calorie drink that has a lot
of vitamins and minerals in it. Claimant started drinking
this while in the hospital and her discharge from the
hospital was contingent upon her continuing to eat this and
reach a certain number of calories.
Claimant went back to see Dr. Fitzgibbons on July 10,
1989. Claimant was asked about the notes in Dr.
Fitzgibbons' record indicating that claimant had headaches
in the past and some stress situations and had been seeing a
psychologist, apparently for stress management. Claimant
emphasized she had never seen a psychologist before March
16, 1989, nor was she seeing one on March 16, 1989.
Claimant insisted she had no idea how Dr. Fitzgibbons got
that note in his records concerning a psychologist or stress
management. Claimant's only explanation was that she did
take a stress management class in school and went to
workshops through her work and perhaps he might have
misunderstood or misinterpreted that (Tr., p. 34).
Claimant was working part-time from July 9 through
August 28, 1989, but was still having problems eating as she
did not have an appetite and no one was monitoring what she
was eating and she could not get herself to eat because she
hurt so much. She was not seeing a nutritionist at that
time.
Claimant was referred to Dr. Fitzgibbons' diagnosis of
claimant having a lumbosacral strain in her low back.
Claimant did not know how that happened but indicated it
could have happened from being on crutches for so long or
the trauma from the nerve blocks. She indicated she had not
lifted anything heavy, she was not in a car accident, nor
did she have any slips and falls during that period.
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On August 30, 1989, claimant had an evaluation done at
the eating disorders program at the University of Nebraska.
Claimant indicated that while in the hospital it was
suggested she was malnourished. Claimant then had an
evaluation by a nutritionist, a therapist, a psychotherapist
and Dr. Pearson. Claimant indicated that from August 28,
1989 until September 25, 1989, the time she hurt her back,
she had continued the outpatient therapy at the eating
disorders clinic. Claimant indicated that she was still in
therapy at that time and was working out at the Bergan Mercy
Clinic and using a Biodex machine to strengthen her ankle,
etc. (Tr., p. 40). She described various other exercises
and equipment she was using to help her recover from her
ankle injury. She was back to full-time work at this point.
Claimant indicated that prior to March 16, 1989, she had
never seen a psychiatrist or a psychologist, has never been
treated on an inpatient or outpatient basis for mental
health problems of any kind, and has never been diagnosed as
having an eating disorder. She has never had any problems
with eating, refusing food or hiding food. Claimant did say
she was in an accident when she was 15 years old but it
appears that she recovered from this and there is no residue
from this injury that has anything to do with the alleged
injuries or claimant's condition herein.
On September 25, 1989, claimant was at work and was
scheduling outside games when she bent down to pick up
equipment on defendant employer's premises. On picking up
some metal horseshoes, she raised up and her back felt like
it ripped from the top to below the belt line on the right
side and she let go of the weights and incurred immense
pain. She indicted she had never had this kind of back pain
before. She indicated she could hear and feel it rip.
Claimant recalled that from September 25 (Monday), she
worked until Friday, the 29th, at which time she was really
bad when she came to work and could hardly move. She
indicated she saw the employee health nurse who indicated
that claimant was unable to work that day and that she would
be taking that day off.
Claimant said that at that point, she was still losing
weight and was being threatened with admission. She
indicated she was restricting and would not eat a lot. She
indicated she was in a period of self-starvation and was in
a lot of pain. She indicated that when she did not eat, she
did not feel the pain as much and that was the reason she
didn't eat. She indicated that her exercising was
considered purging and that she was doing her physical
therapy.
Claimant was referred to Dr. Fitzgibbons' office notes
of October 2 that indicate they had already made
arrangements for claimant to be admitted at the University
of Nebraska Medical Center eating disorders program.
Claimant said a psychotherapist at the eating disorder
clinic by the name of Amanda made the arrangements.
Claimant went ahead and admitted herself to the eating
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disorders program. She was not certain whether the workers'
compensation people knew she was doing this. She was not
sure they knew about the eating disorder. Claimant
continued her physical therapy while in the eating disorder
program. She related her activity in this program and what
she did. It was obvious she still did not want to eat.
Claimant indicated that her pain was bothering her and
indicated to them that the lower her weight was the less
pain she felt. Claimant indicated that when she was at a
low weight she felt a sense of euphoria and it was on those
occasions that she felt good.
Claimant indicated she was an inpatient for
approximately eight weeks, being discharged around November
26, 1989. Claimant indicated she felt her treatment was
beneficial and that she struggled a lot in treatment. She
indicated she went back to work full-time and continued with
therapy with the disorder personnel. Claimant indicated
that she was still in the eating disorder therapy with
Amanda in December 1989, when she walked by one of the
nutritionist offices and they asked if she had seen a
nutritionist recently. She was set up with another
nutritionist and was placed back into the hospital around
March 12, 1990.
Claimant indicated from the first of the year 1990 to
March 12, she was working full-time but was not seeing
anybody for the back or ankle even though she was in a lot
of pain. She indicated she had been prescribed a TENS unit
while she was in the hospital and it was beneficial.
Claimant related how painful her ankle was and that she was
frustrated with her pain cycles and her eating habits were
bad.
Claimant indicated that on March 12, 1990, she came to
the emergency room at the University of Nebraska as they
were unable to find vital signs of a pulse. Claimant
testified that just prior to that time she was taking in way
below the 1200 calories that would be necessary for a body
to function if one was doing nothing at all. Claimant was
then placed on a cardiac monitor at the hospital due to her
irregular heartbeat and inability to find a pulse. Claimant
indicated she was not admitted to the eating disorder
department because she was too much of a medical risk as her
life was in danger at that time.
Claimant was in the hospital approximately a week and
she related her actions and nature of her treatment in
relation to her eating disorder at that time. Claimant
recalled that she was down to approximately 108 pounds
around March 12, 1990. Claimant indicated that after she
was in the cardiac section for approximately a week, she was
then sent to the eating disorder part of the hospital around
March 19, 1990, and was there approximately eight weeks
again, being discharged around May 25, 1990 (Transcript,
page 57). Claimant indicated that her eating disorder is
cyclical in nature and the higher her pain goes the more
frustrated she gets with the pain and the less she eats.
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Claimant indicated that she was discharged because her
benefits ran out. Claimant indicated that just before her
discharge they were running G.I. tests on her. She
indicated that in order to run these tests, she was unable
to eat for twelve hours. She indicated that as a result of
these tests, it put her back into the mold of craving and
starvation again and that she got a high from starving. She
indicated that they made her fast for these tests. She
related that she told them she had a desire to starve again
and to restrict and this desire came back pretty fast.
Claimant emphasized notwithstanding this, she was still
discharged on May 29, 1990. Claimant indicated the reason
for the discharge at that time was because her insurance ran
out (Tr., p. 59). Actually, it was because her health
insurance carrier decided her condition was work related.
At that time, claimant did not go back to work because
she was told that she was placed on leave of absence and her
position was filled by a recent graduate who had taken her
place as a temporary part time initially. Claimant said
defendant employer made no effort to place her in a
different position even though she applied a couple of
different times. Claimant indicated that she didn't work
the summer of 1989 but was continuing outpatient treatment
for her eating disorder.
Claimant said she started seeing W. Michael Walsh,
M.D., an orthopedist, in September of 1990. she indicated
the reason she went to him is that he was related more with
sports injuries. Claimant said that Dr. Walsh was not
treating her for the eating disorder but wanted to maintain
contact with the eating disorders so that she could get
treatment in one package instead of different people doing
their own thing (Tr., p. 61). Claimant continued treatment
with Dr. Walsh which mainly involved physical therapy and
various exercises and continued on an outpatient basis with
treatment of her eating disorder. Claimant indicated that
Dr. Walsh recommended the pain management clinic because of
her reflex sympathetic dystrophy.
Claimant said the defendant employer or anyone through
them would approve claimant going to the pain clinic.
Claimant indicated she eventually went anyway for an
evaluation as she had been informed that if the evaluation
showed a need for such pain management, the treatment might
be okayed for workers' compensation purposes (Tr., p. 63).
Claimant's pain clinic evaluation was May 29, 1991.
On or around June 1, 1991, claimant began working
full-time at Boys Town. She described her duties. Around
August 23, 1991, claimant then continued working but only
part time. Claimant understood that this would be the
situation when she took the job. It appears that around the
fall of 1991, claimant was going to the University of
Nebraska, Omaha, and also was going to the Metro Community
College for her counselor degree taking approximately 12 to
15 hours there. Claimant indicated that her ankle currently
hurts a lot and sometimes it is cold, sometimes warmer, and
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the color changes off and on. She indicated the pain
travels up her leg and then will go down. Her back is also
aggravated. She indicated she received a burn as a result
of sleeping on a heating pad. Claimant indicated her eating
disorder at this time is fluctuating. Right now she
indicates her weight is okay but her metabolism is very low
and she is on an eating range of 17 to 20 points, 16 points
or 1200 calories being the bear minimum (Tr., p. 69).
Claimant emphasized that she would like to go to a pain
management clinic because they have more experience working
with chronic conditions and more experience working with
reflex sympathetic dystrophy. She indicated they tried
different methods for the rehabilitation of the injury with
the ankle and the back. She also emphasized that she wanted
to continue treating for her eating disorder even though she
understands the insurance company has currently cut that
off.
Claimant's private health insurance was paying for her
eating disorder bills but they have cut payment off as they
now feel it is a workers' compensation-related matter. The
workers' compensation company has indicated that it is not
workers' compensation related. It is obvious to the
undersigned that the claimant is in a situation that is
often common in which a claimant is caught between the
health insurance company and the workers' compensation
carrier or self-insured whereby they claim each other should
be paying the medical bills and as a result, claimant gets
no treatment at all unless the person can first pay out of
their own pocket, which usually is not plausible. It would
appear in this case that it would be beneficial to the
claimant and ultimately to the other parties involved that
care continue for this claimant so that she would, in fact,
get well and not regress.
It is obvious that the defendants or other health
carriers do not see this as necessary even though in the end
it may cost one or the other substantially more than had
they taken the proper care of the claimant. The law does
provide that one or the other would be reimbursed for any
expenses they may have paid if they had proceeded and were
later found not responsible assuming they followed the
proper procedure and legal provisions of the law.
It appears claimant is still getting treatment for her
eating disorder with Amanda, who is a psychotherapist, and
the claimant is incurring bills for this treatment.
Claimant said that she was sent by defendant to Behrouz
Rassekh, M.D., on January 2, 1992 for an evaluation and
examination of her back and ankle. She described his
examination as to her back. She indicated during the
examination when she was attempting to bend, the doctor
pushed her farther than she was able to go and she fell
forward as her knees gave out. She indicated that this hurt
(Tr., p. 76, 77). She indicated he then examined her ankle
and touched it with an instrument that looked like a tuning
fork and she had an extreme reaction regarding her right
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ankle bone. She said the pain was so immense, she burst
into tears. She asked him not to do it again and said she
pleaded with him not to touch her ankle. She indicated she
told him she was exercising a lot and related the doctor
told her if she didn't continue exercising and using the
ankle it would fuse from lack of use and that she would lose
the use of it. Claimant indicated that advice affected her
again very much as she was thinking she would lose the use
of her ankle. Claimant related the nature and the time she
would do her exercises.
On cross-examination, claimant was questioned in
reference to Jerrad J. Hertzler, M.D., and his report in
which he indicated claimant had seen a psychologist or
psychiatrist before March 1989. Claimant said that was
inaccurate. She indicated that he asked her about stress
and she said that she had attended workshops, etc., and that
type of information on stress management (Tr., p. 85-89).
Claimant then was referred to joint exhibit 22, page 7,
in which the psychotherapist notes of Amanda indicated that
she believed claimant saw a psychiatrist or psychologist
before. Claimant indicated she was not aware of these notes
but emphasized that she had not seen a psychologist or
psychiatrist before.
It appears to the undersigned, regarding the notes and
references on joint exhibit 7 and joint exhibit 22, page 7,
that defendant is relying upon these to try to indicate a
preexisting mental condition in the claimant prior to March
16, 1989, and that claimant's current problems and eating
disorder were preexisting conditions and not caused by any
of the alleged injuries. Claimant then was asked on
redirect examination as to whether the notes of Dr.
Fitzgibbons concerning claimant possibly being under the
care of a psychologist or psychiatrist are correct.
Claimant said these notes are incorrect (Tr., p. 89).
Claimant indicated that the pain management program is
a four week program and understood that pursuant to her
evaluation they wanted her to go into that program (Jt. Ex.
46, p. 17).
W. Michael Walsh, M.D., an orthopedic surgeon,
testified through his deposition (Jt. Ex. 44) on November
12, 1991, that he first saw claimant on September 4, 1990,
through a referral from a workers' compensation adjuster.
He related claimant's history and complaints of pain and the
location. It appears Dr. Walsh thought claimant had a
reflex sympathetic dystrophy of the right leg. He described
that as an alteration of the sympathetic nerve flow into an
injured area. He indicated these nerves control such things
as temperature and blood supply to an extremity. He
indicated for reasons unknown the sympathetic nervousness
system gets out of whack and begins to get too much
sympathetic nerve inflow to the extremity and thus produces
this characteristic clinical syndrome that is referred to as
reflex sympathetic dystrophy. He indicated that the biggest
tip-off is that the pain is out of proportion for the injury
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that was sustained. He indicated that oftentimes there are
color changes, bluishness, the skin changes, the shiny
atrophy appearance to the extremity appears, sometimes
swelling throughout the extremity or in the joints and
sometimes stiffness occurs. He indicated that this
condition is usually triggered by trauma, but that the exact
physiologic mechanism which causes this syndrome is unknown
(Jt. Ex. 44, pp. 8 and 9). He indicated that the way he
interprets claimant's situation is that she started out with
a sprained ankle and this ripened into a reflex sympathetic
dystrophy.
He was questioned as to claimant's back problem. He
did say that she developed a back problem in the course of
dealing with this particular injury. He indicated that back
pain is not a part of clinical syndrome but claimant, like
other patients with reflex sympathetic dystrophy, was
walking around in a very abnormal fashion for a prolonged
period of time and one typically sees back complaints
stemming from that (Jt. Ex. 44, p. 11). The doctor
indicated that when he saw the claimant on October 3, 1990,
her second visit, he was going to coordinate her treatment
of the ankle with treatment of her eating disorder. He
indicated that he was not aware of any existing literature
that would indicate that the eating disorder is a sequela of
reflex sympathetic dystrophy.
The doctor leaves the impression that he has been
trying for some time to direct claimant to a pain management
program at the University of Nebraska Medical Center and
that claimant did have the initial evaluation from the
program dated May 29, 1991. He also indicated that he knew
the claimant had gone to have some sympathetic nerve blocks
in her leg which are also part of the treatment for reflex
sympathetic dystrophy.
The doctor reiterated that he still is of the opinion
that claimant would be a good candidate for a pain
management program (Jt. Ex. 44, p. 15). Dr. Walsh gave
several reasons why he thinks this program would be
beneficial to the claimant, namely, but not necessarily
limited to, the fact that these programs would take a
multi-disciplinary approach in that they have anesthesi
ologists, physical therapists and psychologist involved to
handle the various aspects on a unified approach in handling
this type of condition. Dr. Walsh said that reflex
sympathetic dystrophy is curable and the cure rate is
directly related to how quickly one jumps on it. He
indicated any delay in getting started on the program is not
in the claimant's favor. Nerve blocks are critical as
prognostic features (Jt. 44, p. 17). The doctor indicated
that he did not believe there is a causal connection between
claimant's reflex sympathetic dystrophy and her eating
disorder. He indicated he wasn't aware of any connection
between those two items.
The doctor indicated that he is writing a chapter that
deals with reflex sympathetic dystrophy in relation to a
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sports injury book and that his article deals with the knee
cap problems. The doctor acknowledged that it is not
predictable who is going to have reflex sympathetic
dystrophy and who isn't when there has been some type of
traumatic event that occurs before the reflex sympathetic
dystrophy. The doctor further acknowledged that the
fraternity still has problems with not only the sympathetic
nervous system itself, but the whole nervous system and it
is still very theoretical in its basis (Jt. Ex. 14, p. 22).
Dr. Walsh indicated that claimant showed a loss of bone
mineral and that there was a remark on the osteoporosis
which showed up on claimant's x-ray. It appears that this
is typical in reflex sympathetic dystrophy conditions. He
indicated that the reflex sympathetic dystrophy itself is
combined to the leg and that claimant's altered gait pattern
which results from the reflex sympathetic dystrophy would be
the biochemical reason to flare up one's back or leg or any
other part of the body linked to it mechanically. The
doctor believes this is a legitimate sequela to the reflex
sympathetic dystrophy because it alters one's gait (Jt. Ex.
44, p. 32).
Dr. Fitzgibbons' notes of October 2, 1989, indicate a
question of psychological ramifications to the claimant's
problems as well as an eating disorder. This appears for
the first time in his notes but he does indicate that he and
other doctors earlier that summer were concerned about
claimant having anorexia (Jt. Ex. 30, p. 5). The doctor's
notes on July 10, 1989 indicate that he felt claimant's
accident of March 16, 1989, which caused her ankle sprain
did cause her eventual secondary sympathetic dystrophy and
was the reason claimant had the spinal blocks and was the
reason claimant got spinal headaches (Jt. Ex. 30, p. 3).
Dr. Fitzgibbons' notes of October 2, 1989, reflect
claimant's additional injury in which she hurt her back
approximately one week prior (Jt. Ex. 30, p. 6). Dr.
Fitzgibbons's notes of November 14, 1989 reflect his
frustration in which he states: "I really think we have
just done every test possible to look at all these
ramifications of her low back pain and her reflex
sympathetic dystrophy." He further indicated in his notes
that there was psychological ramifications on her ability to
cope with her ankle and back symptoms. He thought the
eating disorder goes along with all of this. His notes
reflect he told her that she would have pain every day and
she would have to learn a way to come home and handle this
pain, either with a warm tub bath, ice packs, or something.
Joint exhibit 36 is a letter from Paul H. Pearson,
M.D., professor emeritus and senior consultant, of the
eating disorders program at the University of Nebraska
Medical Center. In his July 18, 1990 letter, he rendered an
opinion relating to the causal relationship between
claimant's work-related injury of March 16, 1989 and her
eating disorder. He stated in part:
1. The cause(s) of anorexia nervoso and/or bulimia
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are unknown in specific.
2. The medical literature, and my own experience,
document a causal relationship between trauma
or illness and the subsequent development of
the signs and/or symptoms of an eating disorder
in some patients, i.e., to use your words, the
injury or illness seems to "set in motion" the
signs/symptoms of the eating disorder.
3. From my review of the medical records and the
history I took from Teresa Cronican on August
30, 1989, I would state that with a reasonable
degree of medical probability Teresa Cronican's
eating disorder was "set in motion" by the
injury and its subsequent complications.
(Jt. Ex. 36)
Joint exhibit 37 reflects a letter of April 12, 1991,
from Dr. Walsh, M.D., of the Sports Medicine Center. On
page 3 of this exhibit, he notes that he felt the most
appropriate referral for the claimant would be the pain
management program at the University of Nebraska Medical
Center. He also felt that some additional sympathetic
blocks in her right leg as well as addressing the
psychological component of her complaints could be tried.
He further opined that he believed claimant's work injuries
were the cause of her present physical disability (Jt. Ex.
37, p. 3).
Joint exhibit 38 is a physical therapy screening
evaluation dated May 29, 1991, in which the assessment made
by the center indicated that claimant was physically
appropriate to participate in the pain management program
and that due to the possible complications from the eating
disorder, it would be necessary for the pain program
psychologist to evaluate the feasibility of having the
claimant participate in the pain management center program.
Joint exhibit 39 is the psychological pain assessment at the
University of Nebraska Medical Center. Joint exhibit 39,
page 6, indicates that the evaluator felt that claimant
could participate in their pain management center program or
continue to be followed by the eating disorder program at
the University of Nebraska Medical Center.
Joint exhibit 40, her discharge summary dated December
6, 1991, reflects that it was recognized some time ago
claimant would probably be a good candidate for the pain
program. However, due to the problems with litigation and
coverage for the pain clinic, she has as of that time not
been accepted into the pain program. She indicated she was
continuing ongoing treatment of an eating disorder at the
eating disorder program at the University of Nebraska
Medical Center.
Joint exhibit 41 is a January 3, 1992 letter written by
Dr. Rassekh, a neurologist, in which he wrote defendant's
attorney after the attorney referred the claimant to him for
an evaluation. He indicated that the patient had a normal
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neurological examination and he did not find any objective
findings to explain the pain of the patient. He indicated
he believed the patient needed more psychotherapy other than
other formal surgical or medical treatment. He indicated
the pain clinic may be more beneficial on the psychotherapy
aspect of this patient.
The parties agreed that both the March 16, 1989 and the
September 25, 1989 injuries arose out of and in the course
of claimant's employment and that there was some causal
connection as to temporary disability.
Although the defendant points to some instances in
which it believes shows claimant had psychological problems
prior to March 16, 1989, there was no indication that if, in
fact, there was some psychological problems, they were
causing claimant problems. Claimant denies any prior
treatment or diagnosis for psychological problems prior to
March 16, 1989. The undersigned realizes that often items
are found in a doctor's notes in which there is either an
obvious misinterpretation or misunderstanding. The
undersigned believes that when there are possible references
where the doctor may have referred to the fact that claimant
indicated she had seen a psychologist or psychiatrist, they
are either a misunderstanding or misinterpretation of what
she told him. Claimant has been in school and has taken
courses involving stress management, etc., and it is easy to
see where this might have been misinterpreted. The fact is
that the undersigned sees no indication of any psychological
problems being treated or any eating disorder that the
claimant had prior to March 16, 1989.
The medical evidence clearly shows that claimant's
eating disorder began after she had her ankle injury on
March 16, 1989. It seems undisputed that claimant has a
reflex sympathetic dystrophy condition which was caused by
her right ankle injury on March 16, 1989.
It is clear the doctors consider the causes or the
nature of the reflex sympathetic dystrophy to be somewhat a
mystery and that it has some unknown etiologies within the
medical profession. Dr. Walsh indicated that he did not
think an eating disorder would be a sequela of reflex
sympathetic dystrophy. Likewise, his expertise appears to
be related more to his experience with the knee and a
resulting reflex sympathetic dystrophy. He did not
specifcially rule it out nor did he specifically say a
trauma, itself, could not trigger an eating disorder.
The undersigned finds that whether an eating disorder
is a sequela to reflex sympathetic dystrophy, it is not as
crucial to find as whether claimant's ankle injury, itself,
resulted in or triggered an eating disorder in the claimant.
In other words, did the eating disorder result from the
March 16, 1989 injury, itself, and not whether the eating
disorder resulted from the reflex sympathetic dystrophy
which resulted or was caused, itself, by the March 16, 1989
ankle injury.
The undersigned finds that claimant's eating disorder
Page 13
is causally related to claimant's March 16, 1989 injury.
The undersigned finds that this eating disorder has been
further aggravated by claimant's work injury of September
25, 1989, in which claimant injured her lower back. The
undersigned finds that this aggravation is a contributing
and continuing aggravation to her eating disorder and pain,
but that the eating disorder itself was triggered and
substantially caused by the March 16, 1989 right ankle and
foot injury and that said eating disorder developed
subsequent to the ankle and foot injury.
Dr. Pearson causally connected claimant's eating
disorder to her March 16, 1989 injury. He is an expert on
eating disorders (Jt. Ex. 36).
Dr. Walsh said that reflex sympathetic dystrophy is
curable. He indicated the cure rate is directly related to
how quickly one jumps on it (Jt. Ex. 44, p. 17).
It is apparent to the undersigned that with the dispute
behind the scenes as to claimant's care and who was going to
pay for what, the ultimate discontinuance of at least some
payment of medical bills by the claimant's health carrier
who is alleging that the matter is now workers'
compensation, and the denial by the workers' compensation
carrier or defendant that the injury is not work related as
far as the eating disorder problem, the claimant is in
somewhat of a state of limbo and is not receiving the care
she should receive. It is obvious that between the two
insurance entities, claimant should be getting the care to
help solve her problems which in the end is apparent, could
substantially reduce the ultimate cost to one or the other
or both. Claimant is caught in the middle. This conduct is
not condoned as there are procedures under the law if there
is such a dispute in which claimant could get the care she
deserves and the other entities could fight the dispute
among themselves under the proper procedure if they could
not resolve it among themselves.
The undersigned finds that claimant deserves treatment
for her eating disorder and pain management. It appears
from Dr. Walsh that the Nebraska Medical Center Pain Clinic
is able to provide the multiplicity of disciplines to help
claimant in her total problems in both pain management and
treatment of the eating disorder. Claimant has been treated
in the pain clinic and the undersigned finds that this
treatment and any necessary treatment for her eating
disorder should continue at defendant's expense until such
time it is apparent that no further medical treatment is
determined to be necessary by qualified confident specialist
in the area.
Claimant contends that she should be entitled to
temporary partial disability benefits from August 23, 1991
to the present, as she not reached sufficient healing
period. Defendant contends that claimant is not entitled to
any temporary partial disability benefits from said date
because it believes claimant's problem probably involves an
eating disorder which is a preexisting condition or at least
Page 14
the roots are preexisting, and that there is no causal
connection to claimant's eating disorder and the injuries
and it is this eating disorder that prevents claimant from
working at least full-time.
The undersigned finds that claimant is entitled to
temporary partial disability benefits beginning August 23,
1991 and continuing as long as it is medically indicated
that the claimant is not capable of returning to employment
substantially similar to the employment in which the
claimant was engaged at the time of her injury but is able
to perform other work consistent with the employee's
disability, all in accordance with Iowa Code section
85.33(2).
Regarding the 85.27 medical issue, in light of the
above findings, defendant shall pay those bills represented
by joint exhibits 47, 48 and 49. Defendant shall also pay
for claimant's bills incurred as a result of her treatment
for her ankle and foot injury and any pain management and
eating disorder treatment. The undersigned has already
indicated that said pain management and eating disorder
treatment should be at the University of Nebraska Medical
Center, where claimant has received some treatment in the
past and is apparently currently receiving some treatment.
Regarding claimant's September 25, 1989 injury, both
parties agreed that claimant incurred a back injury which
arose out of and in the course of her employment. The
undersigned finds that claimant's problems resulting from
her March 16, 1989 injury are contributing and obviously are
not helping the cure or resolution of claimant's problems
resulting from her September 25, 1989 injury. It appears to
the undersigned that with proper treatment, as has been
referred to and hereinafter ordered, it may also solve or
alleviate or decrease claimant's ultimate problems resulting
from her September 25, 1989 injury.
Since the determination of permanency is not an issue
herein in either of these injuries, and since the permanent
partial disability issue has been bifurcated, the
undersigned need not go into any further discussion or
detail regarding that issue.
conclusions of law
The claimant has the burden of proving by a
preponderance of the evidence that the injuries of March 16,
1989 and September 25, 1989 are causally related to the
disability on which she now bases her claim. Bodish v.
Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl
v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A
possibility is insufficient; a probability is necessary.
Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691,
73 N.W.2d 732 (1955). The question of causal connection is
essentially within the domain of expert testimony. Bradshaw
v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167
(1960).
However, expert medical evidence must be considered
Page 15
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman v. Central Telephone
Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
Iowa Code section 85.27 provides, in part:
For purposes of this section, the employer is
obliged to furnish reasonable services and supplies to treat
an injured employee, and has the right to choose the care.
The treatment must be offered promptly and be reasonably
suited to treat the injury without undue inconvenience to
the employee. If the employee has reason to be dissatisfied
with the care offered, the employee should communicate the
basis of such dissatisfaction to the employer, in writing if
requested, following which the employer and the employee may
agree to alternate care reasonably suited to treat the
injury. If the employer and employee cannot agree on such
alternate care, the commissioner may, upon application and
reasonable proofs of the necessity therefor, allow and order
other care. In an emergency, the employee may choose the
employee's care at the employer's expense, provided the
employer or the employer's agent cannot be reached
immediately.
Iowa Code section 85.33(2) provides:
"Temporary partial disability" or "temporarily,
partially disabled" means the condition of an
employee for whom it is medically indicated that
the employee is not capable of returning to
employment substantially similar to the employment
in which the employee was engaged at the time of
injury, but is able to perform other work
consistent with the employee's disability.
"Temporary partial benefits" means benefits
payable, in lieu of temporary total disability and
healing period benefits, to an employee because of
the employee's temporary partial reduction in
earning ability as a result of the employee's
temporary partial disability. Temporary partial
benefits shall not be considered benefits payable
to an employee, upon termination of temporary
partial or temporary total disability, the healing
period, or permanent partial disability, because
the employee is not able to secure work paying
weekly earnings equal to the employee's weekly
earnings at the time of injury.
It is further concluded that:
Claimant's work injury to her right ankle and foot on
Page 16
March 16, 1989, caused her to develop an eating disorder.
Claimant's March 16, 1989 work injury caused claimant
to incur a reflex sympathetic dystrophy in her right lower
extremity.
Claimant's work-related March 16, 1989 injury caused
claimant to incur an eating disorder which resulted in
claimant incurring a substantial amount of bills, as set out
in joint exhibits 47, 48 and 49, which are to be paid by the
defendant.
Defendant shall pay for the continuing care of the
claimant for treatment of her ankle and foot injury,
resulting eating disorder, and her reflex sympathetic
dystrophy. This treatment would include claimant going to
the pain management center at the University of Nebraska
Medical Center to receive the multiplicity of disciplines
medically for treatment of claimant's pain management,
reflex sympathetic dystrophy, and eating disorder.
Because of claimant's March 16, 1989 work injury,
claimant is entitled to temporary partial disability
benefits beginning August 23, 1991, and continuing as long
as it is medically indicated that claimant is not capable of
returning to employment substantially similar to the
employment she was engaged at the time of her injury, but is
able to perform other work consistent with claimant's
disability. This is all in compliance with Iowa Code
section 85.33(2).
Claimant's stipulated rate is $218.45.
Claimant's work injury of September 25, 1989, has not
resulted of itself in claimant incurring an eating disorder,
but said injury has contributed to claimant's continuing
problems originally brought about by her March 16, 1989
injury.
Claimant's current entitlement to temporary partial
disability benefits materially and substantially flow from
her March 16, 1989 injury and not from her September 25,
1989 work injury although the latter may be contributing
thereto.
Any issue of permanency has been bifurcated as to both
of the above injuries and is not being addressed herein.
Defendant shall pay claimant's mileage incurred to date
(Jt. Ex. 54) and any future mileage consistent with this
decision.
Page 17
order
THEREFORE, it is ordered:
That claimant is entitled to temporary partial
disability benefits beginning August 23, 1991, and are to
continue as long as it is medically indicated that claimant
is not capable of returning to employment substantially
similar to the employment to which she was engaged at the
time of her injury but is able to perform other work
consistent with the claimant's disability, all in accordance
with Iowa Code section 85.33(2), at the stipulated rate of
two hundred eighteen and 45/100 dollars ($218.45) per week.
That defendant shall pay for all of claimant's medical
bills that are represented by joint exhibits 47, 48 and 49,
and to further pay for additional medical bills incurred as
a result of the continuing treatment of claimant, including
treatment at the University of Nebraska Medical Center pain
clinic program. This would also involve treatment of
claimant's pain management, and eating disorder.
That defendant shall pay for claimant's mileage
incurred to date as shown on joint exhibit 54 and any future
mileage consistent with this decision.
Nothing is further ordered at this time regarding
claimant's September 25, 1989 work injury.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
The files are to be returned to docket for the
determination of the bifurcated issue.
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, 1992.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Jacob John Peters
Attorney at Law
233 Pearl St
Page 18
P O Box 1078
Council Bluffs IA 51502
Mr James E Thorn
Attorney at Law
310 Kanesville Blvd
P O Box 398
Council Bluffs IA 51502
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
TERESA CRONICAN, :
:
Claimant, :
: File Nos. 959311
vs. : 959312
:
MERCY HOSPITAL, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant. :
:
___________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on January 30, 1992, at
Council Bluffs, Iowa. This is a proceeding in arbitration
wherein claimant seeks compensation for temporary partial
disability and medical benefits and a transfer of care as a
result of alleged injuries occurring on March 16, 1989 and
September 25, 1989. The record in the proceedings consist
of the testimony of claimant and joint exhibits 1 through
55.
issues
The issues for resolution are:
1. Whether claimant is entitled to temporary partial
disability benefits for the period beginning August 23, 1991
to the present;
2. Whether claimant's temporary partial disability,
medical bills and eating disorder are causally connected to
her injuries of March 16, 1989 and/or September 25, 1989;
3. Whether claimant is entitled to 85.27 medical
benefits. These bills are set out in exhibits 47, 48 and 49
and are related to claimant's eating disorder. Within this
issue is whether claimant is entitled to care and treatment
for her eating disorder and whether claimant is entitled to
have pain clinic treatment and, if authorized, whether that
pain clinic care should be transferred to the University of
Nebraska's pain management clinic at defendant's expense.
The parties agreed that if causal connection is found in
this case it would resolve the medical bills currently in
dispute.
The issue of permanency has been bifurcated.
Page 2
findings of fact
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant is a 25-year-old high school graduate who also
has a degree in therapeutic recreation from the College of
St. Mary's. She currently is enrolled in a dependent
counseling program at Metro Community College and is
attending the University of Nebraska, Omaha, program in
counseling. Claimant worked part-time as a work study while
in college and later worked beginning in 1986 at Mercy
Hospital part-time. Her position was as a recreational
therapeutic assistant working with mental health patients,
both adults and adolescents, in skilled nursing care and
chemical dependency. Upon her graduation from the College
of St. Mary's in May of 1988, defendant employer offered
claimant a full-time job as a therapeutic recreation
specialist and claimant eventually was switched to a
certified therapeutic recreation specialist. Her job was
primarily working with the chemically dependent among adults
and adolescents. She related her basic duties in this
position.
Claimant recalled what happened on March 16, 1989, in
which she landed on the side of her right foot and ankle and
fell to the floor in pain. At the time of this injury, she
was working with patients of the defendant employer playing
basketball. She indicated she weighed approximately 135
pounds and was 5 feet 10 inches tall at that time. Although
claimant worked the next two days, she related that her
ankle was getting worse with increasing pain and was still
swelling up. She went to the emergency room at Mercy
Hospital in Council Bluffs. Claimant related her medical
treatment. She was put on crutches and therapy and
medication were prescribed. Claimant continued to work
while on crutches but was not getting any better, so
eventually defendant employer called in an orthopedic
specialist, a Dr. Agarwal. After reviewing the x-rays, the
doctor put claimant in a hard cast covering the edge of her
toes up to below the knee.
Claimant continued working full days. Some time around
May of 1989, claimant saw Dr. Agarwal for the last time and
indicated she became very upset by the information the
doctor gave her. She said he indicated to her that she
would probably never again walk normal and suggested she go
for a second opinion. Claimant sought a second opinion from
Timothy C. Fitzgibbons, M.D., an orthopedic specialist in
Omaha, Nebraska. She first saw Dr. Fitzgibbons around June
6, 1989. She indicated that her right ankle and leg was
very swollen, discolored and was highly sensitive to a point
where claimant indicated even a brush such as with a piece
of paper would cause intense pain in her foot. Claimant
indicated a series of nerve blocks was recommended as it
appeared she had a reflex sympathetic dystrophy.
Claimant testified that during this period of time from
March 16, 1989 to June 6, 1989, she was in immense pain and
Page 3
her eating habits changed whereby she had no appetite and
nothing sounded good to eat and they really changed after
the doctor told her she would never walk normal again in her
life. She emphasized that she had no desire to eat and her
total concentration was trying to rehabilitate the ankle.
She indicated she was nor purging but just did not eat or
think about eating and her weight dropped approximately 15
to 20 pounds.
Claimant indicated that a Dr. Rosenberg performed three
separate series of nerve blocks on an outpatient basis at
Bergan Hospital. She indicated the nerve blocks are a
series of shots done on three separate days and are done
toward the right side of her back, the first series being to
the mid or lower back, the second the mid-back to the hip,
and the third was an epidural block in the spine. Claimant
related some of the problems that resulted from the shot in
her spine. Claimant described the problem she was
continuing to have (Tr., p. 28). Eventually, it was
suggested to the claimant that she see a nutritionist. She
believed it was Thomas E. Connolly, M.D., that suggested it.
Claimant then was put on a calorie system that works off of
points and she had a calorie target. She indicated that if
she did not eat as required, they would supplement her diet
with "Ensure" which is a high calorie drink that has a lot
of vitamins and minerals in it. Claimant started drinking
this while in the hospital and her discharge from the
hospital was contingent upon her continuing to eat this and
reach a certain number of calories.
Claimant went back to see Dr. Fitzgibbons on July 10,
1989. Claimant was asked about the notes in Dr.
Fitzgibbons' record indicating that claimant had headaches
in the past and some stress situations and had been seeing a
psychologist, apparently for stress management. Claimant
emphasized she had never seen a psychologist before March
16, 1989, nor was she seeing one on March 16, 1989.
Claimant insisted she had no idea how Dr. Fitzgibbons got
that note in his records concerning a psychologist or stress
management. Claimant's only explanation was that she did
take a stress management class in school and went to
workshops through her work and perhaps he might have
misunderstood or misinterpreted that (Tr., p. 34).
Claimant was working part-time from July 9 through
August 28, 1989, but was still having problems eating as she
did not have an appetite and no one was monitoring what she
was eating and she could not get herself to eat because she
hurt so much. She was not seeing a nutritionist at that
time.
Claimant was referred to Dr. Fitzgibbons' diagnosis of
claimant having a lumbosacral strain in her low back.
Claimant did not know how that happened but indicated it
could have happened from being on crutches for so long or
the trauma from the nerve blocks. She indicated she had not
lifted anything heavy, she was not in a car accident, nor
did she have any slips and falls during that period.
Page 4
On August 30, 1989, claimant had an evaluation done at
the eating disorders program at the University of Nebraska.
Claimant indicated that while in the hospital it was
suggested she was malnourished. Claimant then had an
evaluation by a nutritionist, a therapist, a psychotherapist
and Dr. Pearson. Claimant indicated that from August 28,
1989 until September 25, 1989, the time she hurt her back,
she had continued the outpatient therapy at the eating
disorders clinic. Claimant indicated that she was still in
therapy at that time and was working out at the Bergan Mercy
Clinic and using a Biodex machine to strengthen her ankle,
etc. (Tr., p. 40). She described various other exercises
and equipment she was using to help her recover from her
ankle injury. She was back to full-time work at this point.
Claimant indicated that prior to March 16, 1989, she had
never seen a psychiatrist or a psychologist, has never been
treated on an inpatient or outpatient basis for mental
health problems of any kind, and has never been diagnosed as
having an eating disorder. She has never had any problems
with eating, refusing food or hiding food. Claimant did say
she was in an accident when she was 15 years old but it
appears that she recovered from this and there is no residue
from this injury that has anything to do with the alleged
injuries or claimant's condition herein.
On September 25, 1989, claimant was at work and was
scheduling outside games when she bent down to pick up
equipment on defendant employer's premises. On picking up
some metal horseshoes, she raised up and her back felt like
it ripped from the top to below the belt line on the right
side and she let go of the weights and incurred immense
pain. She indicted she had never had this kind of back pain
before. She indicated she could hear and feel it rip.
Claimant recalled that from September 25 (Monday), she
worked until Friday, the 29th, at which time she was really
bad when she came to work and could hardly move. She
indicated she saw the employee health nurse who indicated
that claimant was unable to work that day and that she would
be taking that day off.
Claimant said that at that point, she was still losing
weight and was being threatened with admission. She
indicated she was restricting and would not eat a lot. She
indicated she was in a period of self-starvation and was in
a lot of pain. She indicated that when she did not eat, she
did not feel the pain as much and that was the reason she
didn't eat. She indicated that her exercising was
considered purging and that she was doing her physical
therapy.
Claimant was referred to Dr. Fitzgibbons' office notes
of October 2 that indicate they had already made
arrangements for claimant to be admitted at the University
of Nebraska Medical Center eating disorders program.
Claimant said a psychotherapist at the eating disorder
clinic by the name of Amanda made the arrangements.
Claimant went ahead and admitted herself to the eating
Page 5
disorders program. She was not certain whether the workers'
compensation people knew she was doing this. She was not
sure they knew about the eating disorder. Claimant
continued her physical therapy while in the eating disorder
program. She related her activity in this program and what
she did. It was obvious she still did not want to eat.
Claimant indicated that her pain was bothering her and
indicated to them that the lower her weight was the less
pain she felt. Claimant indicated that when she was at a
low weight she felt a sense of euphoria and it was on those
occasions that she felt good.
Claimant indicated she was an inpatient for
approximately eight weeks, being discharged around November
26, 1989. Claimant indicated she felt her treatment was
beneficial and that she struggled a lot in treatment. She
indicated she went back to work full-time and continued with
therapy with the disorder personnel. Claimant indicated
that she was still in the eating disorder therapy with
Amanda in December 1989, when she walked by one of the
nutritionist offices and they asked if she had seen a
nutritionist recently. She was set up with another
nutritionist and was placed back into the hospital around
March 12, 1990.
Claimant indicated from the first of the year 1990 to
March 12, she was working full-time but was not seeing
anybody for the back or ankle even though she was in a lot
of pain. She indicated she had been prescribed a TENS unit
while she was in the hospital and it was beneficial.
Claimant related how painful her ankle was and that she was
frustrated with her pain cycles and her eating habits were
bad.
Claimant indicated that on March 12, 1990, she came to
the emergency room at the University of Nebraska as they
were unable to find vital signs of a pulse. Claimant
testified that just prior to that time she was taking in way
below the 1200 calories that would be necessary for a body
to function if one was doing nothing at all. Claimant was
then placed on a cardiac monitor at the hospital due to her
irregular heartbeat and inability to find a pulse. Claimant
indicated she was not admitted to the eating disorder
department because she was too much of a medical risk as her
life was in danger at that time.
Claimant was in the hospital approximately a week and
she related her actions and nature of her treatment in
relation to her eating disorder at that time. Claimant
recalled that she was down to approximately 108 pounds
around March 12, 1990. Claimant indicated that after she
was in the cardiac section for approximately a week, she was
then sent to the eating disorder part of the hospital around
March 19, 1990, and was there approximately eight weeks
again, being discharged around May 25, 1990 (Transcript,
page 57). Claimant indicated that her eating disorder is
cyclical in nature and the higher her pain goes the more
frustrated she gets with the pain and the less she eats.
Page 6
Claimant indicated that she was discharged because her
benefits ran out. Claimant indicated that just before her
discharge they were running G.I. tests on her. She
indicated that in order to run these tests, she was unable
to eat for twelve hours. She indicated that as a result of
these tests, it put her back into the mold of craving and
starvation again and that she got a high from starving. She
indicated that they made her fast for these tests. She
related that she told them she had a desire to starve again
and to restrict and this desire came back pretty fast.
Claimant emphasized notwithstanding this, she was still
discharged on May 29, 1990. Claimant indicated the reason
for the discharge at that time was because her insurance ran
out (Tr., p. 59). Actually, it was because her health
insurance carrier decided her condition was work related.
At that time, claimant did not go back to work because
she was told that she was placed on leave of absence and her
position was filled by a recent graduate who had taken her
place as a temporary part time initially. Claimant said
defendant employer made no effort to place her in a
different position even though she applied a couple of
different times. Claimant indicated that she didn't work
the summer of 1989 but was continuing outpatient treatment
for her eating disorder.
Claimant said she started seeing W. Michael Walsh,
M.D., an orthopedist, in September of 1990. she indicated
the reason she went to him is that he was related more with
sports injuries. Claimant said that Dr. Walsh was not
treating her for the eating disorder but wanted to maintain
contact with the eating disorders so that she could get
treatment in one package instead of different people doing
their own thing (Tr., p. 61). Claimant continued treatment
with Dr. Walsh which mainly involved physical therapy and
various exercises and continued on an outpatient basis with
treatment of her eating disorder. Claimant indicated that
Dr. Walsh recommended the pain management clinic because of
her reflex sympathetic dystrophy.
Claimant said the defendant employer or anyone through
them would approve claimant going to the pain clinic.
Claimant indicated she eventually went anyway for an
evaluation as she had been informed that if the evaluation
showed a need for such pain management, the treatment might
be okayed for workers' compensation purposes (Tr., p. 63).
Claimant's pain clinic evaluation was May 29, 1991.
On or around June 1, 1991, claimant began working
full-time at Boys Town. She described her duties. Around
August 23, 1991, claimant then continued working but only
part time. Claimant understood that this would be the
situation when she took the job. It appears that around the
fall of 1991, claimant was going to the University of
Nebraska, Omaha, and also was going to the Metro Community
College for her counselor degree taking approximately 12 to
15 hours there. Claimant indicated that her ankle currently
hurts a lot and sometimes it is cold, sometimes warmer, and
Page 7
the color changes off and on. She indicated the pain
travels up her leg and then will go down. Her back is also
aggravated. She indicated she received a burn as a result
of sleeping on a heating pad. Claimant indicated her eating
disorder at this time is fluctuating. Right now she
indicates her weight is okay but her metabolism is very low
and she is on an eating range of 17 to 20 points, 16 points
or 1200 calories being the bear minimum (Tr., p. 69).
Claimant emphasized that she would like to go to a pain
management clinic because they have more experience working
with chronic conditions and more experience working with
reflex sympathetic dystrophy. She indicated they tried
different methods for the rehabilitation of the injury with
the ankle and the back. She also emphasized that she wanted
to continue treating for her eating disorder even though she
understands the insurance company has currently cut that
off.
Claimant's private health insurance was paying for her
eating disorder bills but they have cut payment off as they
now feel it is a workers' compensation-related matter. The
workers' compensation company has indicated that it is not
workers' compensation related. It is obvious to the
undersigned that the claimant is in a situation that is
often common in which a claimant is caught between the
health insurance company and the workers' compensation
carrier or self-insured whereby they claim each other should
be paying the medical bills and as a result, claimant gets
no treatment at all unless the person can first pay out of
their own pocket, which usually is not plausible. It would
appear in this case that it would be beneficial to the
claimant and ultimately to the other parties involved that
care continue for this claimant so that she would, in fact,
get well and not regress.
It is obvious that the defendants or other health
carriers do not see this as necessary even though in the end
it may cost one or the other substantially more than had
they taken the proper care of the claimant. The law does
provide that one or the other would be reimbursed for any
expenses they may have paid if they had proceeded and were
later found not responsible assuming they followed the
proper procedure and legal provisions of the law.
It appears claimant is still getting treatment for her
eating disorder with Amanda, who is a psychotherapist, and
the claimant is incurring bills for this treatment.
Claimant said that she was sent by defendant to Behrouz
Rassekh, M.D., on January 2, 1992 for an evaluation and
examination of her back and ankle. She described his
examination as to her back. She indicated during the
examination when she was attempting to bend, the doctor
pushed her farther than she was able to go and she fell
forward as her knees gave out. She indicated that this hurt
(Tr., p. 76, 77). She indicated he then examined her ankle
and touched it with an instrument that looked like a tuning
fork and she had an extreme reaction regarding her right
Page 8
1/21/2S?der were
preexisting conditions and not caused by any of the alleged
injuries. Claimant then was asked on redirect examination
as to whether the notes of Dr. Fitzgibbons concerning
claimant possibly being under the care of a psychologist or
psychiatrist are correct. Claimant said these notes are
incorrect (Tr., p. 89).
Claimant indicated that the pain management program is
a four week program and understood that pursuant to her
evaluation they wanted her to go into that program (Jt. Ex.
46, p. 17).
W. Michael Walsh, M.D., an orthopedic surgeon,
testified through his deposition (Jt. Ex. 44) on November
12, 1991, that he first saw claimant on September 4, 1990,
through a referral from a workers' compensation adjuster.
He related claimant's history and complaints of pain and the
location. It appears Dr. Walsh thought claimant had a
reflex sympathetic dystrophy of the right leg. He described
that as an alteration of the sympathetic nerve flow into an
injured area. He indicated these nerves control such things
as temperature and blood supply to an extremity. He
indicated for reasons unknown the sympathetic nervousness
system gets out of whack and begins to get too much
sympathetic nerve inflow to the extremity and thus produces
this characteristic clinical syndrome that is referred to as
reflex sympathetic dystrophy. He indicated that the biggest
tip-off is that the pain is out of proportion for the injury
Page 9
that was sustained. He indicated that oftentimes there are
color changes, bluishness, the skin changes, the shiny
atrophy appearance to the extremity appears, sometimes
swelling throughout the extremity or in the joints and
sometimes stiffness occurs. He indicated that this
condition is usually triggered by trauma, but that the exact
physiologic mechanism which causes this syndrome is unknown
(Jt. Ex. 44, pp. 8 and 9). He indicated that the way he
interprets claimant's situation is that she started out with
a sprained ankle and this ripened into a reflex sympathetic
dystrophy.
He was questioned as to claimant's back problem. He
did say that she developed a back problem in the course of
dealing with this particular injury. He indicated that back
pain is not a part of clinical syndrome but claimant, like
other patients with reflex sympathetic dystrophy, was
walking around in a very abnormal fashion for a prolonged
period of time and one typically sees back complaints
stemming from that (Jt. Ex. 44, p. 11). The doctor
indicated that when he saw the claimant on October 3, 1990,
her second visit, he was going to coordinate her treatment
of the ankle with treatment of her eating disorder. He
indicated that he was not aware of any existing literature
that would indicate that the eating disorder is a sequela of
reflex sympathetic dystrophy.
The doctor leaves the impression that he has been
trying for some time to direct claimant to a pain management
program at the University of Nebraska Medical Center and
that claimant did have the initial evaluation from the
program dated May 29, 1991. He also indicated that he knew
the claimant had gone to have some sympathetic nerve blocks
in her leg which are also part of the treatment for reflex
sympathetic dystrophy.
The doctor reiterated that he still is of the opinion
that claimant would be a good candidate for a pain
management program (Jt. Ex. 44, p. 15). Dr. Walsh gave
several reasons why he thinks this program would be
beneficial to the claimant, namely, but not necessarily
limited to, the fact that these programs would take a
multi-disciplinary approach in that they have anesthesi
ologists, physical therapists and psychologist involved to
handle the various aspects on a unified approach in handling
this type of condition. Dr. Walsh said that reflex
sympathetic dystrophy is curable and the cure rate is
directly related to how quickly one jumps on it. He
indicated any delay in getting started on the program is not
in the claimant's favor. Nerve blocks are critical as
prognostic features (Jt. 44, p. 17). The doctor indicated
that he did not believe there is a causal connection between
claimant's reflex sympathetic dystrophy and her eating
disorder. He indicated he wasn't aware of any connection
between those two items.
The doctor indicated that he is writing a chapter that
deals with reflex sympathetic dystrophy in relation to a
Page 10
sports injury book and that his article deals with the knee
cap problems. The doctor acknowledged that it is not
predictable who is going to have reflex sympathetic
dystrophy and who isn't when there has been some type of
traumatic event that occurs before the reflex sympathetic
dystrophy. The doctor further acknowledged that the
fraternity still has problems with not only the sympathetic
nervous system itself, but the whole nervous system and it
is still very theoretical in its basis (Jt. Ex. 14, p. 22).
Dr. Walsh indicated that claimant showed a loss of bone
mineral and that there was a remark on the osteoporosis
which showed up on claimant's x-ray. It appears that this
is typical in reflex sympathetic dystrophy conditions. He
indicated that the reflex sympathetic dystrophy itself is
combined to the leg and that claimant's altered gait pattern
which results from the reflex sympathetic dystrophy would be
the biochemical reason to flare up one's back or leg or any
other part of the body linked to it mechanically. The
doctor believes this is a legitimate sequela to the reflex
sympathetic dystrophy because it alters one's gait (Jt. Ex.
44, p. 32).
Dr. Fitzgibbons' notes of October 2, 1989, indicate a
question of psychological ramifications to the claimant's
problems as well as an eating disorder. This appears for
the first time in his notes but he does indicate that he and
other doctors earlier that summer were concerned about
claimant having anorexia (Jt. Ex. 30, p. 5). The doctor's
notes on July 10, 1989 indicate that he felt claimant's
accident of March 16, 1989, which caused her ankle sprain
did cause her eventual secondary sympathetic dystrophy and
was the reason claimant had the spinal blocks and was the
reason claimant got spinal headaches (Jt. Ex. 30, p. 3).
Dr. Fitzgibbons' notes of October 2, 1989, reflect
claimant's additional injury in which she hurt her back
approximately one week prior (Jt. Ex. 30, p. 6). Dr.
Fitzgibbons's notes of November 14, 1989 reflect his
frustration in which he states: "I really think we have
just done every test possible to look at all these
ramifications of her low back pain and her reflex
sympathetic dystrophy." He further indicated in his notes
that there was psychological ramifications on her ability to
cope with her ankle and back symptoms. He thought the
eating disorder goes along with all of this. His notes
reflect he told her that she would have pain every day and
she would have to learn a way to come home and handle this
pain, either with a warm tub bath, ice packs, or something.
Joint exhibit 36 is a letter from Paul H. Pearson,
M.D., professor emeritus and senior consultant, of the
eating disorders program at the University of Nebraska
Medical Center. In his July 18, 1990 letter, he rendered an
opinion relating to the causal relationship between
claimant's work-related injury of March 16, 1989 and her
eating disorder. He stated in part:
1. The cause(s) of anorexia nervoso and/or bulimia
Page 11
are unknown in specific.
2. The medical literature, and my own experience,
document a causal relationship between trauma
or illness and the subsequent development of
the signs and/or symptoms of an eating disorder
in some patients, i.e., to use your words, the
injury or illness seems to "set in motion" the
signs/symptoms of the eating disorder.
3. From my review of the medical records and the
history I took from Teresa Cronican on August
30, 1989, I would state that with a reasonable
degree of medical probability Teresa Cronican's
eating disorder was "set in motion" by the
injury and its subsequent complications.
(Jt. Ex. 36)
Joint exhibit 37 reflects a letter of April 12, 1991,
from Dr. Walsh, M.D., of the Sports Medicine Center. On
page 3 of this exhibit, he notes that he felt the most
appropriate referral for the claimant would be the pain
management program at the University of Nebraska Medical
Center. He also felt that some additional sympathetic
blocks in her right leg as well as addressing the
psychological component of her complaints could be tried.
He further opined that he believed claimant's work injuries
were the cause of her present physical disability (Jt. Ex.
37, p. 3).
Joint exhibit 38 is a physical therapy screening
evaluation dated May 29, 1991, in which the assessment made
by the center indicated that claimant was physically
appropriate to participate in the pain management program
and that due to the possible complications from the eating
disorder, it would be necessary for the pain program
psychologist to evaluate the feasibility of having the
claimant participate in the pain management center program.
Joint exhibit 39 is the psychological pain assessment at the
University of Nebraska Medical Center. Joint exhibit 39,
page 6, indicates that the evaluator felt that claimant
could participate in their pain management center program or
continue to be followed by the eating disorder program at
the University of Nebraska Medical Center.
Joint exhibit 40, her discharge summary dated December
6, 1991, reflects that it was recognized some time ago
claimant would probably be a good candidate for the pain
program. However, due to the problems with litigation and
coverage for the pain clinic, she has as of that time not
been accepted into the pain program. She indicated she was
continuing ongoing treatment of an eating disorder at the
eating disorder program at the University of Nebraska
Medical Center.
Joint exhibit 41 is a January 3, 1992 letter written by
Dr. Rassekh, a neurologist, in which he wrote defendant's
attorney after the attorney referred the claimant to him for
an evaluation. He indicated that the patient had a normal
Page 12
neurological examination and he did not find any objective
findings to explain the pain of the patient. He indicated
he believed the patient needed more psychotherapy other than
other formal surgical or medical treatment. He indicated
the pain clinic may be more beneficial on the psychotherapy
aspect of this patient.
The parties agreed that both the March 16, 1989 and the
September 25, 1989 injuries arose out of and in the course
of claimant's employment and that there was some causal
connection as to temporary disability.
Although the defendant points to some instances in
which it believes shows claimant had psychological problems
prior to March 16, 1989, there was no indication that if, in
fact, there was some psychological problems, they were
causing claimant problems. Claimant denies any prior
treatment or diagnosis for psychological problems prior to
March 16, 1989. The undersigned realizes that often items
are found in a doctor's notes in which there is either an
obvious misinterpretation or misunderstanding. The
undersigned believes that when there are possible references
where the doctor may have referred to the fact that claimant
indicated she had seen a psychologist or psychiatrist, they
are either a misunderstanding or misinterpretation of what
she told him. Claimant has been in school and has taken
courses involving stress management, etc., and it is easy to
see where this might have been misinterpreted. The fact is
that the undersigned sees no indication of any psychological
problems being treated or any eating disorder that the
claimant had prior to March 16, 1989.
The medical evidence clearly shows that claimant's
eating disorder began after she had her ankle injury on
March 16, 1989. It seems undisputed that claimant has a
reflex sympathetic dystrophy condition which was caused by
her right ankle injury on March 16, 1989.
It is clear the doctors consider the causes or the
nature of the reflex sympathetic dystrophy to be somewhat a
mystery and that it has some unknown etiologies within the
medical profession. Dr. Walsh indicated that he did not
think an eating disorder would be a sequela of reflex
sympathetic dystrophy. Likewise, his expertise appears to
be related more to his experience with the knee and a
resulting reflex sympathetic dystrophy. He did not
specifcially rule it out nor did he specifically say a
trauma, itself, could not trigger an eating disorder.
The undersigned finds that whether an eating disorder
is a sequela to reflex sympathetic dystrophy, it is not as
crucial to find as whether claimant's ankle injury, itself,
resulted in or triggered an eating disorder in the claimant.
In other words, did the eating disorder result from the
March 16, 1989 injury, itself, and not whether the eating
disorder resulted from the reflex sympathetic dystrophy
which resulted or was caused, itself, by the March 16, 1989
ankle injury.
The undersigned finds that claimant's eating disorder
Page 13
is causally related to claimant's March 16, 1989 injury.
The undersigned finds that this eating disorder has been
further aggravated by claimant's work injury of September
25, 1989, in which claimant injured her lower back. The
undersigned finds that this aggravation is a contributing
and continuing aggravation to her eating disorder and pain,
but that the eating disorder itself was triggered and
substantially caused by the March 16, 1989 right ankle and
foot injury and that said eating disorder developed
subsequent to the ankle and foot injury.
Dr. Pearson causally connected claimant's eating
disorder to her March 16, 1989 injury. He is an expert on
eating disorders (Jt. Ex. 36).
Dr. Walsh said that reflex sympathetic dystrophy is
curable. He indicated the cure rate is directly related to
how quickly one jumps on it (Jt. Ex. 44, p. 17).
It is apparent to the undersigned that with the dispute
behind the scenes as to claimant's care and who was going to
pay for what, the ultimate discontinuance of at least some
payment of medical bills by the claimant's health carrier
who is alleging that the matter is now workers'
compensation, and the denial by the workers' compensation
carrier or defendant that the injury is not work related as
far as the eating disorder problem, the claimant is in
somewhat of a state of limbo and is not receiving the care
she should receive. It is obvious that between the two
insurance entities, claimant should be getting the care to
help solve her problems which in the end is apparent, could
substantially reduce the ultimate cost to one or the other
or both. Claimant is caught in the middle. This conduct is
not condoned as there are procedures under the law if there
is such a dispute in which claimant could get the care she
deserves and the other entities could fight the dispute
among themselves under the proper procedure if they could
not resolve it among themselves.
The undersigned finds that claimant deserves treatment
for her eating disorder and pain management. It appears
from Dr. Walsh that the Nebraska Medical Center Pain Clinic
is able to provide the multiplicity of disciplines to help
claimant in her total problems in both pain management and
treatment of the eating disorder. Claimant has been treated
in the pain clinic and the undersigned finds that this
treatment and any necessary treatment for her eating
disorder should continue at defendant's expense until such
time it is apparent that no further medical treatment is
determined to be necessary by qualified confident specialist
in the area.
Claimant contends that she should be entitled to
temporary partial disability benefits from August 23, 1991
to the present, as she not reached sufficient healing
period. Defendant contends that claimant is not entitled to
any temporary partial disability benefits from said date
because it believes claimant's problem probably involves an
eating disorder which is a preexisting condition or at least
Page 14
the roots are preexisting, and that there is no causal
connection to claimant's eating disorder and the injuries
and it is this eating disorder that prevents claimant from
working at least full-time.
The undersigned finds that claimant is entitled to
temporary partial disability benefits beginning August 23,
1991 and continuing as long as it is medically indicated
that the claimant is not capable of returning to employment
substantially similar to the employment in which the
claimant was engaged at the time of her injury but is able
to perform other work consistent with the employee's
disability, all in accordance with Iowa Code section
85.33(2).
Regarding the 85.27 medical issue, in light of the
above findings, defendant shall pay those bills represented
by joint exhibits 47, 48 and 49. Defendant shall also pay
for claimant's bills incurred as a result of her treatment
for her ankle and foot injury and any pain management and
eating disorder treatment. The undersigned has already
indicated that said pain management and eating disorder
treatment should be at the University of Nebraska Medical
Center, where claimant has received some treatment in the
past and is apparently currently receiving some treatment.
Regarding claimant's September 25, 1989 injury, both
parties agreed that claimant incurred a back injury which
arose out of and in the course of her employment. The
undersigned finds that claimant's problems resulting from
her March 16, 1989 injury are contributing and obviously are
not helping the cure or resolution of claimant's problems
resulting from her September 25, 1989 injury. It appears to
the undersigned that with proper treatment, as has been
referred to and hereinafter ordered, it may also solve or
alleviate or decrease claimant's ultimate problems resulting
from her September 25, 1989 injury.
Since the determination of permanency is not an issue
herein in either of these injuries, and since the permanent
partial disability issue has been bifurcated, the
undersigned need not go into any further discussion or
detail regarding that issue.
conclusions of law
The claimant has the burden of proving by a
preponderance of the evidence that the injuries of March 16,
1989 and September 25, 1989 are causally related to the
disability on which she now bases her claim. Bodish v.
Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl
v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A
possibility is insufficient; a probability is necessary.
Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691,
73 N.W.2d 732 (1955). The question of causal connection is
essentially within the domain of expert testimony. Bradshaw
v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167
(1960).
However, expert medical evidence must be considered
Page 15
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman v. Central Telephone
Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
Iowa Code section 85.27 provides, in part:
For purposes of this section, the employer is
obliged to furnish reasonable services and supplies to treat
an injured employee, and has the right to choose the care.
The treatment must be offered promptly and be reasonably
suited to treat the injury without undue inconvenience to
the employee. If the employee has reason to be dissatisfied
with the care offered, the employee should communicate the
basis of such dissatisfaction to the employer, in writing if
requested, following which the employer and the employee may
agree to alternate care reasonably suited to treat the
injury. If the employer and employee cannot agree on such
alternate care, the commissioner may, upon application and
reasonable proofs of the necessity therefor, allow and order
other care. In an emergency, the employee may choose the
employee's care at the employer's expense, provided the
employer or the employer's agent cannot be reached
immediately.
Iowa Code section 85.33(2) provides:
"Temporary partial disability" or "temporarily,
partially disabled" means the condition of an
employee for whom it is medically indicated that
the employee is not capable of returning to
employment substantially similar to the employment
in which the employee was engaged at the time of
injury, but is able to perform other work
consistent with the employee's disability.
"Temporary partial benefits" means benefits
payable, in lieu of temporary total disability and
healing period benefits, to an employee because of
the employee's temporary partial reduction in
earning ability as a result of the employee's
temporary partial disability. Temporary partial
benefits shall not be considered benefits payable
to an employee, upon termination of temporary
partial or temporary total disability, the healing
period, or permanent partial disability, because
the employee is not able to secure work paying
weekly earnings equal to the employee's weekly
earnings at the time of injury.
It is further concluded that:
Claimant's work injury to her right ankle and foot on
Page 16
March 16, 1989, caused her to develop an eating disorder.
Claimant's March 16, 1989 work injury caused claimant
to incur a reflex sympathetic dystrophy in her right lower
extremity.
Claimant's work-related March 16, 1989 injury caused
claimant to incur an eating disorder which resulted in
claimant incurring a substantial amount of bills, as set out
in joint exhibits 47, 48 and 49, which are to be paid by the
defendant.
Defendant shall pay for the continuing care of the
claimant for treatment of her ankle and foot injury,
resulting eating disorder, and her reflex sympathetic
dystrophy. This treatment would include claimant going to
the pain management center at the University of Nebraska
Medical Center to receive the multiplicity of disciplines
medically for treatment of claimant's pain management,
reflex sympathetic dystrophy, and eating disorder.
Because of claimant's March 16, 1989 work injury,
claimant is entitled to temporary partial disability
benefits beginning August 23, 1991, and continuing as long
as it is medically indicated that claimant is not capable of
returning to employment substantially similar to the
employment she was engaged at the time of her injury, but is
able to perform other work consistent with claimant's
disability. This is all in compliance with Iowa Code
section 85.33(2).
Claimant's stipulated rate is $218.45.
Claimant's work injury of September 25, 1989, has not
resulted of itself in claimant incurring an eating disorder,
but said injury has contributed to claimant's continuing
problems originally brought about by her March 16, 1989
injury.
Claimant's current entitlement to temporary partial
disability benefits materially and substantially flow from
her March 16, 1989 injury and not from her September 25,
1989 work injury although the latter may be contributing
thereto.
Any issue of permanency has been bifurcated as to both
of the above injuries and is not being addressed herein.
Defendant shall pay claimant's mileage incurred to date
(Jt. Ex. 54) and any future mileage consistent with this
decision.
Page 17
order
THEREFORE, it is ordered:
That claimant is entitled to temporary partial
disability benefits beginning August 23, 1991, and are to
continue as long as it is medically indicated that claimant
is not capable of returning to employment substantially
similar to the employment to which she was engaged at the
time of her injury but is able to perform other work
consistent with the claimant's disability, all in accordance
with Iowa Code section 85.33(2), at the stipulated rate of
two hundred eighteen and 45/100 dollars ($218.45) per week.
That defendant shall pay for all of claimant's medical
bills that are represented by joint exhibits 47, 48 and 49,
and to further pay for additional medical bills incurred as
a result of the continuing treatment of claimant, including
treatment at the University of Nebraska Medical Center pain
clinic program. This would also involve treatment of
claimant's pain management, and eating disorder.
That defendant shall pay for claimant's mileage
incurred to date as shown on joint exhibit 54 and any future
mileage consistent with this decision.
Nothing is further ordered at this time regarding
claimant's September 25, 1989 work injury.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
The files are to be returned to docket for the
determination of the bifurcated issue.
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, 1992.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Jacob John Peters
Attorney at Law
233 Pearl St
Page 18
P O Box 1078
Council Bluffs IA 51502
Mr James E Thorn
Attorney at Law
310 Kanesville Blvd
P O Box 398
Council Bluffs IA 51502
1108; 1801.1; 2500
Filed February 14, 1992
Bernard J. O'Malley
before the iowa industrial commissioner
____________________________________________________________
:
TERESA CRONICAN, :
:
Claimant, :
: File Nos. 959311
vs. : 959312
:
MERCY HOSPITAL, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant. :
:
___________________________________________________________
1108
Found claimant's work injury to her right foot and ankle on
March 16, 1989 caused a reflex sympathetic dystrophy in her
right lower extremity and also that this injury triggered an
eating disorder in claimant.
1801.1
Found claimant is entitled to a running award for temporary
partial disability benefits for her March 16, 1989 work
injury.
2500
Found claimant is entitled to have her medical bills paid by
defendant for treatment of her eating disorder, future
treatment of this disorder, her reflex sympathetic
dystrophy, and pain management.
1801.1
Found claimant's September 25, 2989 low back work injury may
be contributing to claimant's current problems, but are not
the current cause of her eating disorder or entitlement to
temporary partial disability benefits.
The issue of permanency was bifurcated as to both injuries.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
LARRY DON DeGEEST, :
: File No. 959317
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
ROLSCREEN COMPANY, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Larry Don
DeGeest, claimant, against Rolscreen Company, self-insured
employer, to recover benefits under the Iowa Workers' Compensa
tion Act as a result of an injury on May 7, 1990. This matter
came on for hearing before the undersigned deputy industrial
commissioner on July 16, 1991, in Des Moines, Iowa. The record
was considered fully submitted at the close of the hearing. The
record in this case consists of claimant's testimony and joint
exhibits A through N.
issues
Pursuant to the prehearing report and order dated July 16,
1991, the parties have submitted the following issues for
resolution:
1. Whether claimant sustained an injury on May 7, 1990,
which arose out of and in the course of employment with employer;
2. Whether the alleged injury is a cause of temporary and
permanent disability;
3. The extent of entitlement to temporary and permanent
disability, if any; and,
4. Whether claimant's medical expenses are causally con
nected to the work injury.
findings of fact
The undersigned has carefully considered all the testimony
given at the hearing, the arguments made, the documents described
in the exhibits herein, and makes the following findings:
Claimant was born on June 4, 1941, and completed the
eleventh grade of school. Claimant has worked for employer since
January 18, 1962. For the past 16 years he has worked as a qual
ity control technician. This job requires extensive standing and
walking in the course of inspecting parts, units, ect.
Page 2
The pertinent medical evidence of record reveals that
claimant has had diabetes mellitus for the past 23 years. He has
been on insulin therapy for the past 15 years. He has had inter
mittent problems over the years with ulcerations on his right
sole, painful callouses on his right foot and ulcers on his great
right toe.
Carl W. Carlson, D.O., who has treated claimant for his
diabetic foot ulcers since at least 1980, has taken him on and
off work during a 10 year period due to diabetic foot ulcers
(Exhibit A).
In February 1988, claimant saw Paul A. Schippers, podia
trist, in conjunction with Dr. Carlson for treatment of painful
callouses on the right foot. Claimant was off work for this
problem from February 17 through March 7, 1988 (Exs. A-B). On
July 14, 1989, claimant was treated by Dr. Schippers for treat
ment of an ulceration on his great right toe. Dr. Schippers
referred claimant to Douglas Dorner, M.D., for further evaluation
on July 25, 1989. He reported evidence of mal perforans ulcers
involving his right great toe and the third metatarsal head area
(Ex. C). He referred claimant to Iowa Mobile Diagnostics for a
lower extremity arterial evaluation. This was performed on July
27, 1989, and suggested some tibial occlusive disease (Ex. E).
Claimant was taken off work for this problem from July 19, 1989
until August 17, 1989 (Ex. B, page 4).
On October 4, 1989, claimant presented to Gene Van Zee,
M.D., with an infected right great toe. On examination he was
noted to have a very marked amount of cellulitis of the great toe
and dorsum of the foot. He also had a large ulceration over the
plantar surface of the toe at the crease of the toe and foot.
The ulceration was marked by a significant foul smelling debris
which was debrided in order to make an assessment of the toe.
After debridement, the toe showed considerable necrosis down to
the bone and cellulitis. He was also seen in consultation by
Bradley Adams, M.D., orthopedist, and it was mutually recommended
to hospitalize him for treatment with IV antibiotics. He was
admitted to Pella Community Hospital on October 4, 1989, where he
was treated for cellulitis of his right foot secondary to
necrotic ulceration of the plantar surface of the right great
toe. He was discharged on October 6, 1989 (Exs. F-H).
Claimant testified that he made application with the company
to be placed on short term disability benefits from October 7,
1989 until February 7, 1990. This is reflected in his personnel
records (Ex. L, p. 85).
Despite being off work and off of his feet for four months,
claimant redeveloped an ulceration on the plantar aspect of the
second toe of the right foot in February 1990. He was treated by
Dr. Adams and was off work and on short term disability pay from
March 10 through April 29, 1990. At that time, Dr. Adams
released him to return to work without restrictions.
Claimant testified that on April 29, 1990, Rolscreen offered
him a new job, checking lumber in the warehouse. He worked
three-four days and was then put on a press in another building
where he had to stand constantly on his feet. He lasted two days
at this job.
Page 3
In May 1990, claimant was treated by Dr. Adams due to a
breakdown of the plantar aspect of the right great toe with an
ulceration. Silvadene dressing changes were initiated. On July
9, 1990, Dr. Adams indicated that the ulceration was healing and
there were no signs of active infection. Dr. Adams recommended
that claimant consider a more sedentary type of occupation or
terminating his work activities altogether (Ex. H, pp. 4-7).
Claimant testified that on July 9, 1990, a sedentary job at
Rolscreen was made available to him. However, he declined to
accept the employment because he still had an ulcer on his foot
and was unable to walk from the parking lot to the work site and
needed to elevate his foot during the course of the day.
Instead, claimant requested unpaid leave of absence. Claimant
has been on extended unpaid leave of absence from the company
since May 7, 1990. He is eligible to receive retirement benefits
in September 1991, on the 80 and out plan.
conclusions of law
Claimant alleges that he sustained an injury on May 7, 1990,
which arose out of and in the course of employment with employer.
Claimant acknowledges a 29 year history of diabetes mellitus. He
alleges that his condition has been aggravated by his work activ
ity which required prolonged standing and walking on cement
floors.
It is claimant's burden of proof to show by a preponderance
of the evidence that his injury developed gradually from work
activity over a period of time, McKeever Custom Cabinets v.
Smith, 379 N.W.2d 368 (Iowa 1985), which finally compelled him
to cease working.
The injury must both arise out of and be in the course of
the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa
402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the
Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp.,
255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa,
249 Iowa 1147, 91 N.W.2d 555 (1958).
The words "out of" refer to the cause or source of the
injury. The words "in the course of" refer to the time and place
and circumstances of the injury. See Cedar Rapids Community Sch.
V. Cady, 278 N.W.2d 298 (Iowa 1979); McClure v. Union, Et Al.,
Counties, 188 N.W.2d 283 (1971); Crowe, 246 Iowa 402, 68 N.W.2d
63 (1955). An employer takes an employee subject to any active
or dormant health impairments, and a work connected injury which
more than slightly aggravates the condition is considered to be a
personal injury. Ziegler v. United States Gypsum Co., 252 Iowa
613, 620, 106 N.W.2d 591 (1960), and cases cited.
The words "in the course of" refer to the time and place and
circumstances of the injury. McClure, 188 N.W.2d 283 (Iowa
1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
The record clearly demonstrates that claimant has a long
history of diabetes mellitus with frequent manifestations of foot
ulcerations, callouses and ulcers. Claimant must prove by a pre
ponderance of the evidence that his right foot injury arose out
Page 4
of his employment. He must show a nexus between his employment
and aggravation of his diabetic condition. A determination that
an injury "arises out of" the employment contemplates a causal
connection between the conditions under which the work was per
formed and the resulting injury; i.e., the injury followed as a
natural incident of the work. Musselman v. Central Telephone
Co., 154 N.W.2d 128 (1967); Reddick v. Grand Union Tea Company,
296 N.W. 800 (1941).
The medical evidence in this case is insufficient to show a
nexus between claimant's ulcers and his walking and standing on
cement floors at work. Dr. Adams reported on July 1, 1991: "I
do agree that Mr. DeGeest [sic] diabetic condition was not caused
by his work environment and he is susceptible to the ulcerations
and cellulitis of his feet because of his diabetic condition and
a person who is nondiabetic in my opinion would not be suscepti
ble to these problems." (Ex. H., p. 12). He further stated:
There is indeed no permanent impairment as a result of the
ulcerations. The problem is the underlying diabetic condition.
This is why the restrictions were recommended with regards to his
standing activities as it seems that because of this diabetic
condition, prolonged standing or long periods of time with
downward pressure applied to the foot and toe region can cause
the ulcerations to develop.
(Ex. H. p. 12).
The medical evidence does not support claimant's contention
that his condition became so disabling on May 7, 1990, that he
could no longer continue working for employer. Dr. Adams
released claimant to return to work on April 30, 1990 (Ex. H,
p. 2). Although claimant experienced a recurrence of his ulcera
tions and was treated with Silvadene and local wound care by Dr.
Adams, there is no reference to prohibiting claimant from working
on or about May 7, 1990.
The greater weight of the evidence supports the finding that
claimant took a personal leave of absence on May 7, 1990 (Ex. L,
p. 5). After voluntarily taking this leave, claimant's attorney
wrote to employer on May 22, 1990, alleging that claimant was
unable to properly perform his work and was therefore on medical
leave (Ex. L, p. l). However, claimant's attorney was immedi
ately notified that claimant was not off work because of any doc
tor's orders. On May 23, 1990, Mr. Mel Petersma advised
claimant's attorney that claimant had been released to return to
work on April 30, 1990 and that there was no medical information
in employer's possession that claimant was unable to work (Ex. L,
p. 4).
At the hearing, claimant admitted he decided in May 1990, to
take an unpaid leave of absence until September 1991, so that he
could qualify for retirement under Rolscreen's retirement poli
cies. Claimant never provided employer with any medical informa
tion indicating he was unable to work after May 7, 1990.
Claimant requested an extension of his voluntary leave of absence
on July 16, 1990, which was ultimately extended through January
1991 (Ex. J, pp. 42-45 & Exs. 2 & 3).
Furthermore, when claimant was advised by employer that his
treating physician was recommending consideration of a more
Page 5
sedentary type of activity, Rolscreen offered claimant such a job
beginning July 16, 1990, and claimant refused to accept this
employment (Ex. L, p. 2). Claimant never tried the job offered
by employer (Ex. J, pp. 28-31). Dr. Adams indicated the job pro
posed by employer was well within his recommendations concerning
modified work activity to compensate for claimant's pre-existing,
diabetic condition (Ex. H, pp. 10 & 12).
It is speculative to assume that claimant had a medical con
dition which prohibited him working in May 1990. It is also
speculative to assume that any alleged medical condition in May
1990, was the result of activity in the work environment.
Claimant testified that he engages in self-employed activity
operating a greenhouse. That activity begins in February and
reaches it's peak in May. Claimant testified that while he was
not working at Rolscreen during this period of time, he was in
fact running his greenhouse business. In any event, while it is
possible that claimant's condition may have been aggravated by
his work activity, medical evidence is insufficient to show a
nexus between such activity and the intermittent exacerbation of
his foot ulcers. Furthermore, there is insufficient evidence to
show that claimant's condition ultimately forced him to quit all
work activity on May 7, 1990. By claimant's own admission, he
filed for short term disability benefits and unpaid leave due to
a non-work related injury and for the sole purpose of qualifying
for retirement benefits (Ex. L, pp. 84-85).
Thus, it is found that claimant has failed to establish by a
preponderance of the evidence that his right foot problem arose
out of his employment with employer.
This issue is dispositive of the entire case and further
analysis is unnecessary.
order
THEREFORE, IT IS ORDERED:
That claimant take nothing from this proceeding.
That the parties pay their own costs pursuant to rule 343
IAC 4.33.
Signed and filed this ____ day of August, 1991.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Harold B. Heslinga
Attorney at Law
118 N Market St
Page 6
Oskaloosa IA 52577
Mr. Cecil L. Goettsch
Attorney at Law
801 Grand Ave
Suite 3700
Des Moines IA 50309
5-1400; 5-1402.20; 5-1402.30
Filed August 1, 1991
JEAN M. INGRASSIA
before the iowa industrial commissioner
____________________________________________________________
:
LARRY DON DeGEEST, :
: File No. 959317
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
ROLSCREEN COMPANY, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
5-1400; 5-1402.20; 5-1402.30
Claimant, a quality control technician with employer since
January 18, 1962, has suffered from diabetes mellitus for 23
years. He has a history or diabetic foot ulcers, callouses
and soft tissue infections. He alleges that his condition
became so severe on May 7, 1990, that he was no longer able
to work. The evidence shows otherwise. The medical
evidence does not establish a disabling condition on May 7,
1990, which prohibited him from continuing to work. There
are no medical reports supporting his claim. His treating
physicians specifically stated that his diabetic condition
was not caused by his work environment and he is susceptible
to ulcerations and cellulitis of his feet because of his
diabetic condition. Medical evidence does not establish by
a preponderance of the evidence a nexus between claimant's
employment and an aggravation of his condition.
By his own admission, claimant, on May 7, 1990, voluntarily
requested short term disability leave and ultimately unpaid
leave until he qualified for company retirement in September
1991.
Therefore, it was determined that claimant's condition did
not arise out of his employment with employer. A nexus
between his employment and aggravation of his condition was
not established by a preponderance of the evidence.