BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
DELORES MATTHEWS,
Claimant,
vs.
File No. 959319
THOMBERT, INC.,
A P P E A L
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
November 19, 1992 is affirmed and is adopted as the final agency
action in this case.
Defendants shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of November, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Ms. Iris J. Post
Attorney at Law
P.O. Box 10434
Des Moines, Iowa 50306
Mr. E. J. Giovannetti
Ms. Anne L. Clark
Attorneys at Law
2700 Grand Ave., Ste 111
Des Moines, Iowa 50312
1106, 1108.30, 1108.40,
1108.50
1401, 1402.20, 2201, 2203,
2205
1402.30, 1402.40, 1803, 3001,
3002, 3003
Filed November 17, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DELORES MATTHEWS,
Claimant,
vs.
File No. 959319
THOMBERT, INC.,
A P P E A L
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
Defendants.
____________________________________________________________
1106, 1108.30, 1108.40, 1108.50, 1401, 1402.20, 2201, 2203,
2205
The greater weight of the evidence, both medical and
nonmedical, supported and established the determination that
claimant had sustained the occupational disease of
occupational asthma compensable under Iowa Code chapter 85A
and that she had not sustained an injury compensable under
Iowa Code chapter 85. Claimant's treating physicians were
preferred over defendants three one time evaluators even
although all three doctors were members of the same firm of
doctors and saw her at three different times. The decision
contains several cites summarizing the distinction between
an injury and an occupational disease. Claimant met all of
the qualifications for occupational disease contained in
Iowa Code sections 85A.8 and 85A.12.
The date of the occupational disease was the date of the
last injurious exposure. Iowa Code section 85A.10.
Page 2
1108.30, 1108.40, 1402.30, 1402.40
Claimant was a certified public accountant who became (1) an
officer of the company as vice president in charge of
finance, (2) a member of the board of directors, (3) a
member of the management team involved in the decision
making process of the company and (4) one of 18 select
stockholders and owners of the company. She sustained
occupational asthma from the use of isocyanates in the plant
and became sensitized to this chemical. The company
physician, her treating physician and claimant determined
that she should remove herself from this environment. The
treating physician said it was a matter of her life and
health.
It was determined that claimant was "actually incapacitated
from performing the employee's work ... because of an
occupational disease ... in the last employment in which
such employee is injuriously to the hazards of such
disease." Iowa Code section 85A.4. Claimant was foreclosed
from performing her work for this employer. Claimant was
also foreclosed from performing any industrial work or other
work in an environment where isocyanates were in use.
In addition, it was determined that claimant was "actually
incapacitated from ... earning equal wages in other suitable
employment because of an occupational disease ... in the
last occupation in which such employee is injuriously
exposed to the hazards of such disease." Iowa Code section
85A.8. Claimant obtained new employment as a senior
accountant for another company primarily as a record keeper
and preparer of financial statements. She alleged an
immediate loss of 29 percent of her former income and
alleged a 10 percent loss of income at the time of hearing.
These allegations could be supported by the record. Simple
calculations demonstrated an approximate 15 percent loss of
actual earnings at the time of hearing which was three years
after her last injurious exposure.
Thus, disablement was established not once but twice.
1803
It was determined that claimant had sustained a 15 percent
industrial disability to the body as a whole primarily based
on (1) claimants age of 43 and the peak earning period in
her working lifetime (2) the fact that claimant was
physically sensitized to isocyanates which is a fairly
common industrial chemical which is used in the manufacture
of all polyurethane products and (3) that claimant is
foreclosed from working in an occupation where isocyanates
are in use because it is a threat to her life and health.
3001, 3002, 3003
Claimant's base monthly salary, profit bonus, inventory
bonus, and automobile compensation were used in determining
the rate. The life insurance compensation was not used only
because the record was silent as to whether the calculation
of wages in the record contained this element of her
compensation.
Page 3
The profit bonus was conditioned only upon the company
making a profit. Claimant always received it once she
became eligible for it. It was determined to be a regular
bonus.
The inventory bonus was paid practically every month. It
was determined to be a regular bonus.
Even though claimant was paid monthly, nevertheless, (1) her
compensation contained the profit bonus which was paid
annually as she called for it and (2) the inventory bonus
which varied from month to month and (3) the automobile
compensation which apparently was paid separately. Thus,
claimant actually had an annual income even though she
received compensation monthly and the rate was computed
pursuant to Iowa Code section 85.36(5) as the closest
pertinent statute by adding up the annual income and
dividing by 52.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DELORES MATTHEWS,
Claimant,
vs.
File No. 959319
THOMBERT, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
Defendants.
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration filed by Delores
Matthews, claimant, against Thombert, Inc., employer, and
Employers Mutual Companies, insurance carrier, defendants,
for benefits, as a result of an injury or activity which
impaired claimant's health which allegedly occurred on or
about October 26, 1988. A hearing was held in Des Moines,
Iowa on May 4, 1992, and the case was fully submitted at the
close of the hearing. Claimant was represented by Iris J.
Post. Defendants were represented by E. J. Giovannetti.
The record consists of the testimony of Delores Matthews,
claimant, Ron Matthews, claimant's husband, Robert Johns,
formerly Director of Human Resources, Walter Smith, Chairman
of the Board and formerly President of the company, Fred
Steensma, data processing manager, joint exhibits 1, 2 and
3, claimant's exhibits 4, 5 and 6, and defendant's exhibits
A, B, and C. Both attorneys submitted excellent
descriptions of the disputed matters in this case at the
time of the hearing. The deputy ordered a transcript of the
hearing. Both attorneys submitted excellent post-hearing
briefs but the briefs did not address the two main issues in
this case, to wit: occupational disease and disablement.
ISSUES
The parties submitted the following issues for
determination at the time of the hearing.
Whether claimant sustained either (1) an injury on or
about October 26, 1988, pursuant to chapter 85 of the Code
of Iowa or (2) an occupational disease on that date pursuant
to chapter 85A of the Code of Iowa, which in either case
arose out of and in the course of employment with employer.
Whether the injury or disease was the cause of
permanent disability.
Whether claimant is entitled to permanent disability
Page 2
benefits and if so the extent of benefits to which claimant
is entitled based upon a finding of industrial disability or
loss of earnings capacity.
The parties requested a determination of the proper
rate of compensation.
FINDINGS OF FACT
INJURY/OCCUPATIONAL DISEASE
It is determined that claimant sustained an
occupational disease pursuant to Iowa Code sections 85A.8
and 85A.12 of the Code of Iowa.
The concepts of injury and occupational disease cannot
be used interchangeable. McSpadden vs. Big Ben Coal Co.,
288 N.W.2d 181, 190 (Iowa 1980).
Moreover, chapter 85 states that the words "injury" or
"personal injury" "... shall not include an occupational
disease as defined in section 85A.8." Iowa Code section
85.61 Definitions. 4.b.
Concomitantly, chapter 85A provides that no
compensation is payable as an occupational disease "... for
any condition of physical or mental ill-being, disability,
disablement, or death for which compensation is recoverable
on account of injury under the workers' compensation law."
Iowa Code section 85A.14.
Iowa Code section 85.3(1) provides that employers shall
pay compensation for all personal injuries sustained by an
employee arising out of and in the course of employment with
employer. However, the statute does not define personal
injury or injury. Nevertheless, "The Supreme Court has
defined the term 'injury' very broadly." Lawyer and Higgs,
Iowa Workers' Compensation--Law and Practice (Second Ed.),
section 4-1, page 21.
The Supreme Court stated "a personal injury ...
obviously means an injury to the body, the impairment of
health, or disease not excluded by the act, which comes
about, not through the natural building up or tearing down
of the human body, but because of a traumatic or other hurt
or damage to the health or body of an employee." Almquist
v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934).
The liberal concept of injury is further illustrated by
the fact that chapter 85 states that the words injury or
personal injury shall include a disease if the disease
results from an injury. Iowa Code 85.61 4.b.
The liberal concept of injury is further illustrated by
Iowa Supreme Court decisions over the years. In Iowa, an
accident is not required. Olson v. Goodyear Service Stores,
255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963); Adams v.
Douglas and Lomason, Volume 2, No. 2, State of Iowa
Industrial Commissioner Decisions 431 (1985). Proof of a
special incident or unusual occurrence is not required.
Page 3
Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949). A
personal injury may develop gradually over an extended
period of time Black v. Creston Auto Co., 255 Iowa 671, 281
N.W.189 (1938). More recently, the Iowa Supreme Court has
adopted the cumulative injury rule which applies to
situations where a disability develops gradually over a
period of time from a series of micro traumas and ultimately
results in a compensable injury McKeever Custom Cabinets v.
Smith, 379 N.W.2d 368, 374 (Iowa 1985). Oscar Mayer Foods
Corp. v Tasler, 483 N.W.2d 824 (Iowa 1992)
Even though the Supreme Court found that a case of lead
poisoning caused by inhalation of fumes at work was an
injury, rather than an occupational disease, it did so in
1938 prior to the passage of the occupational disease law in
1947 based upon the rational that the employer had failed to
furnish the employee a safe place to work Black v. Creston
Auto Co.,, 225 Iowa 671, 675, 281 N.W.189 (1938); Anderson
v. Carroll George, Inc., file number 776587, filed August
18, 1986.
By comparison, the concept of occupational disease has
been quite narrowly defined and limited by various sections
of chapter 85A. In particular, Iowa Code section 85A.8
defines occupational disease (1) as only those diseases
which arise out of and in the course of the employees'
employment, (2) that such diseases shall have a direct
casual connection with the employment and must have followed
as a natural incident thereto from injurious exposure
occasioned by the nature of the employment, (3) that such
disease must be incidental to the character of the business,
occupation or process in which the employee was employed and
not independent of the employment, (4) that even though the
disease need not have been foreseen or expected it must
nevertheless after its contraction appear to have had its
origin in a risk connected with the employment and to have
resulted from that source as an incident and rational
consequence of it and (5) a disease which follows from a
hazard to which an employee has or would have been equally
exposed outside of his occupation is not compensable as an
occupational disease.
Iowa Code section 85A.12 further specifies that an
employer shall not be liable for any compensation for an
occupational disease unless the disease shall be due to the
nature of an employment in which the hazards of the disease
actually exist and the hazards are characteristic of this
employment and peculiar to the trade, occupation, process or
employment and that the disease must actually arise out of
the employment. This section further requires disability or
death to occur within three years in the case of
pneumoconiosis or within one year in the case of any other
occupational disease. These latter statutory requirements
about the time of the development of disability or death
were strictly construed and upheld by the Iowa Supreme
Court. Meyer v. Iowa State Penitentiary, 476 N.W.2d 58
(Iowa 1991).
Furthermore, Iowa Code section 85A.4 requires that the
employee become actually incapacitated from performing the
Page 4
employee's work or from earning equal wages in other
suitable employment because of the occupational disease in
the last occupation in which the employee was injuriously
exposed to the hazards of the disease.
The Iowa Occupational Disease Law has been more simply
explained as special coverage for "... workers who contract
diseases peculiar to their employment." Lawyer and Higgs,
Iowa Workers' Compensation -- Law and Practice (Second Ed.),
section 18-1 page 177. The Supreme Court further attempted
to simplify the concept of occupational disease by stating:
"...to prove causation of an occupational disease,
the claimant need only meet the two basic
requirements imposed by the statutory definition
of occupational disease, given in section 85A.8.
First, the disease must be causally related to the
exposure to harmful conditions in the field of
employment.... Secondly, those harmful conditions
must be more prevalent in the employment concerned
than in everyday life or in other occupations."
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 190
(Iowa 1980). Frit Indus. v. Langenwalter, 443 N.W.2d 88, 90
(Iowa Court of Appeals 1989).
The industrial commissioner recently stressed the
distinction between injury and occupational disease by
making the distinction that injuries are normally related to
external traumatic forces whereas occupational diseases are
normally related to an invasion of the body by an outside
agent. Noble v. Lamoni Products, file Nos. 857, 575 and
851309 (Appeal Decision May 7, 1992) (on appeal). It will
be noted in the summary of the facts of this case that
claimant's body did not receive any external traumatic
forces but rather her body was invaded by or affected by an
outside foreign chemical agent used in the manufacturing
process where she was employed.
The weight of the evidence in this case supports and
establishes the determination that claimant has sustained an
occupational disease pursuant to chapter 85A and that
claimant has not sustained an injury or personal injury
pursuant to chapter 85 of the Code of Iowa.
Claimant testified that employer is primarily a
family-owned business which employes approximately 80 to 100
employees and engages in the manufacturing of polyurethane
products (Transcript pp., 21 & 24). Isocyanates are a part
of the manufacture of all polyurethane products (Trans., pp
28 & 32). Prior to 1988 the company manufactured bowling
balls for the Brunswick Company (Trans., p. 24). In 1988
the company began to manufacture forklift truck tires and
wheels (Trans., p. 21) and this involved using a new
chemical called Vulkollan (Trans., p. 29). Vulkollan used a
chemical component known as NDI whereas previously the
isocyanates employed used another chemical component
described as MDI (Trans., p. 30).
Claimant testified that in September of 1988 that she
Page 5
developed what felt like a cold with congestion and
bronchial problems. She encountered difficulties breathing
and her voice became very raspy (Trans., p. 26). Claimant
described the breathing problems as follows: "It just feels
harder to pull in air, and so you start to have a discomfort
in your lungs." (Trans., p. 33).
Claimant became more concerned in October of 1988 when
three co-employees noticed her symptoms and called them to
her attention. Claimant's husband had also noticed that her
voice had changed dramatically over the telephone (Trans.,
p. 33). Claimant discussed her condition with Walt Smith,
then president of the company and Bob Johns, then director
of Human Resources. Claimant testified that Smith and Johns
were concerned that her problems were connected with
material being used in the plant and encouraged her to see a
doctor (Trans., p. 34).
Claimant testified that she saw Michael J. Makowsky,
M.D., an occupational health doctor, at Iowa Methodist
Hospital on October 26, 1988. Claimant testified that he
prescribed medications and recommended that she not return
to the processing area of the plant (Trans., p. 34).
On October 26, 1988, the emergency room record at Iowa
Methodist Medical Center records that claimant reported that
she felt it was difficult to breath, like she could not take
a full breath in. On October 26, 1988, Dr. Makowsky
recorded that claimant probably had respiratory irritation
from exposure to workplace chemicals. He recommend that she
avoid further contact with the work area until environmental
controls were used to reduce exposure to NDI (Exhibit. 3,
page. 47). On October 27, 1988, Dr. Makowsky recorded that
most likely the symptoms of Mrs. Matthews are related to the
irritant effect of isocyanates, but that it was unlikely
that they had a sensitizing effect at that time. Dr.
Makowsky offered to visit the plant to review health and
safety procedures. He also contacted a toxicologist and one
Jim Chapman employed by Mobay regarding the health hazards
of NDI (Ex. 3, p. 48). Chapman is the representative of
Mobay and Mobay is the supplier of the suspected chemicals
to employer.
Dr. Makowsky reported again on November 23, 1988, that
it was his impression that claimant's symptoms were related
to isocyanate exposure (Ex. 3, p. 57). On that date also,
Dr. Makowsky recorded "has had repeated episodes of
shortness of breath and chest tightness while working in her
office in Newton. Symptoms are temporally related to
production use of isocyanates. Other employees are having
similar problems. Respiratory symptoms persist after
leaving plant aggravated by exposure to other non-work
related fumes." (Ex. 3, p. 58). Dr. Makowsky concluded that
claimant's symptoms were related to isocyanates (NDI)
exposure and that she had probably acquired a sensitization
at that time. He recommended that she avoid the work-site
exposure to isocyanates and prescribed medications (Ex. 3,
p. 58).
Thus, the opinion of Dr. Makowsky, an occupational
Page 6
medicine doctor, supports and establishes that claimant's
condition meets the requirements of an occupational disease.
It has a direct causal connection with the employment. It
follows as a natural incident from injurious exposure
occasioned by the nature of the employment and the condition
is incidental to the character of the business, occupation
and process in which the employee was employed and was not
independent of the employment. The condition had its origin
in a risk (isocyanates) connected with the employment and
resulted from that source as an independent and rational
consequence. Dr. Makowsky did not suggest that anything
outside of claimant's occupation or employment contributed
to her condition. Iowa Code section 85A.8. Furthermore,
other employees were affected by the use of these chemicals
and therefore the nature of the employment is one in which
the hazards of the disease actually exist and are
characteristic of and peculiar to the trade, occupation and
process of the employment Iowa Code section 85A.12.
At the same time claimant was seeing Dr. Makowsky
defendants sent claimant to the Internal Medicine Faculty
and Clinic where she first saw Randall Hanson, M.D., on
November 3, 1988. Dr. Hanson reported on November 7, 1988,
"I saw Delores in the Pulmonary Clinic on November 3, 1988.
It is my impression that she currently is a healthy white
female with some vague asthmatic symptoms." (Ex. 3, p. 41).
Dr. Hanson's x-ray revealed no pulmonary infiltrates,
pleural reaction or cardiomegaly. His pulmonary functional
test revealed normal spirometry, lung volumes and diffusion
capacity. Dr. Hanson concluded "I reassured Mrs. Matthews
at this point I find no evidence of asthma or intersitital
[sic] lung disease because of the acuteness of the exposure
and I am not quite sure whether she could of become
sensitized to Isocyanates nor am I sure that her symptoms
are related to Isocyanates hypersensitivity." (Ex. 3, p.
42). Dr. Hanson did mention that OSHA and the manufacturer
of the fabricating chemicals were going to survey the plant
the following week. Thus, even though Dr. Hanson found no
evidence of asthma or sensitivity to isocyanates he
nevertheless thought it was important to note that OSHA and
the supplier were testing the plant due to chemicals used in
the manufacturing process.
Claimant's personal and family physician P. E. Ruggle,
M.D., sent claimant to the University of Iowa where she was
examined by Laurence J. Fuortes, M.D., on November 28, 1988
(Ex. 3, pp. 27 & 28). Dr. Fuortes is board certified in
internal medicine (1983) and preventative medicine and
occupational medicine (1989) and is board eligible in
clinical toxicology (1990) (Ex. 1, p. 5; Deposition Exhibit
1, page 41). His practice at the University is divided
between clinical practice and research practice. He saw
claimant at the pulmonary clinic which is a division within
the occupation medicine clinic at the University (Ex. 1, pp.
6 & 7). Dr. Fuortes stated, "She related to us that her
symptoms began soon after the introduction of napthalene
diisocyanate into the workplace at Thombert." (Ex. 1, p. 8).
He said his physical examination was entirely normal (Ex. 1,
p. 9). An x-ray of the chest and a pulmonary function test
Page 7
were normal. A methacholine inhalation test was not
diagnostic of asthma per se, but it was consistent with
asthma. Dr. Fuortes testified that he diagnosed
occupational asthma resultant from isocyanate exposure.
The doctor was asked and answered as follows:
"Q. The substance of isocyanate, is that found
outside the workplace?
A. Probably not to any significant extent.
Isocyanate is found in certain plastics and
certain paint systems, but clinically significant
exposures to isocyanates are almost entirely in
industrial settings.
Q. Was it your understanding that Ms. Matthews
was involved in an industrial setting?
A. She was working in a place that deals with
isocyanates on a daily basis to create cast rubber
wheels or plastic wheels." (Jt. Ex. 1, p. 12).
When Dr. Fuortes was asked if he had any other similar
patients he replied, "Yes, quite a few of the patients we
see in our clinic are occupational asthma patients, probably
about a third of them, and of those I can't tell you exactly
how many, but approximately one-half have isocyanate-related
asthma. So isocyanate exposure is one of the major features
of our clientele." (Jt. Ex. 1, p. 8).
Dr. Fuortes wrote to Dr. Ruggle on December 1, 1988,
and stated that his diagnosis was occupational asthma
secondary to Napthalene Diisocyanate. He further related
claimant's symptoms to her work for employer (Ex. 3, p. 33).
Dr. Fuortes saw claimant again on January 23, 1989, and
again diagnosed occupational asthma induced by Napthalene
Diisocyanate. The doctor added that she has a history of
occupational induced asthma. A new component of the disease
was that she had occasional asthmatic attacks induced by
exercise and cold exposure (Ex. 3, p. 34). In the
deposition Dr. Fuortes explained that in addition to
occupational asthma she had developed hyperractive airways
and therefore cold and exercise and tobacco smoke cause
symptoms of cough, wheezing and chest tightness in addition
to actual exposure to isocyanates (Ex. 1, p. 14).
Dr. Fuortes recommended claimant leave her employment
with employer. This colloquy transpired.
"Q. Did you suggest or some other physician
suggest that she leave the workplace?
A. It was a consensus between the plant
physician, myself and the patient.
Q. And that was because then she would not be
exposed to the isocyanates, is that correct?
Page 8
A. Yes." (Jt. Ex. 1, p. 15).
Dr. Fuortes saw claimant again on April 26, 1990, and
again stated her diagnosis was occupational asthma secondary
to Napthalene Diisocyanate exposure while working for
employer. She also continued to have persistent
hyperractive airway disease subsequent to the occupational
exposures with continued symptoms from tobacco, cold air and
exertion. He concluded by stating that her symymptomatology
may persist for several years despite the fact she had no
further exposure to isocyanantes and stressed that further
exposure to isocyanates would cause severe asthmatic
reactions (Ex. 3, p. 36).
Claimant saw Dr. Fuortes again on April 5, 1991, and he
continued his diagnosis of occupational asthma, secondary to
Napthalene Diiscoyanate and added that she continues to be
at risk for development of bronchospastic disease in the
future because of the sensitization from Napthalene
Diisocyanate (Ex. 1, p. 15) (Jt. Ex. 3, p. 38) (Ex. 1, p.
17).
In a letter to claimant's counsel on April 9, 1991, Dr.
Furotes stated:
"To summarize my feelings regarding Ms. Matthews,
Ms. Matthews was one of several employees at the
Thombert plant in Newton, Iowa, who developed
occupational asthma in the latter part of 1988 as
a result of exposure to naphthalene diisocyanate.
... As a result of those workplace exposures at
Thombert, Ms. Matthews will never be able to be
exposed to isocyanate fumes again without risking
her health and/or her life. Without isocyanate
exposures, Ms. Matthews' respiratory health is
quite good, her pulmonary functions being normal
away from that workplace. In addition to never
being able to tolerate exposures to isocyanates in
the future, Ms. Matthews is at increased risk for
intermittent bronchospastic or asthmatic episodes
resultant from non-specific respiratory
irritants." (Ex. 3, p. 39).
In his deposition the doctor said that claimant's
occupational asthma was caused by her exposure to napthalene
diisocyanate while working for employer (Ex. 1, p. 18).
The doctor acknowledged that claimant had improved
since changing employment but that she must avoid future
exposure to the chemical (Ex. 1, pp. 19 & 20). The doctor
repeated that although there are minuscule concentrations of
isocyanates in paint which might be found in household or
environmental chemicals, nevertheless, isocyanates are
primarily found in the industrial setting (Ex. 1, p. 20).
When asked if isocyanate was found outside the workplace Dr.
Fuortes answered "Probably not to any significant extent.
Isocyanate is found in certain plastics and certain paint
systems, but clinically significant exposures to isocyanates
are almost entirely in industrial settings." (Ex. 1, p. 12).
Page 9
Dr. Fuortes admitted that his diagnosis was based on
history given to him by the patient (and impliedly his
personal examination) and that all of his objective tests,
to wit, chest x-rays, pulmonary function tests and a
methacholine inhalation challenge test were all normal (Ex.
1, pp. 24 & 25). Dr. Fuortes testified that it was his
opinion that claimant was sensitized to isocyanates but it
was also possible that her reaction might simply be a
prominent irritant effect (Ex. 1, pp. 30-34). Dr. Fuortes
clarified that there was no time when he told claimant not
to work but rather he told her to stay away from isocyanates
(Ex. 1, pp. 36 & 37). Dr. Fuortes had no opinion as to
whether claimant had sustained a permanent functional
impairment. He said he expected her to have some degree of
problem with recurrent asthma symptoms but hopefully she
would have less and less as time goes on. He was unable to
assess a permanent impairment at the time of his deposition
(Ex. 1, pp. 18 & 19).
Thus, Dr. Fuortes even more clearly and forcefully than
Dr. Makowsky, confirmed that claimant has sustained an
occupational disease rather than an injury. Claimant's
occupational asthma was directly caused by her employment
and followed as a natural incident from her injurious
exposure to isocyanates being used by employer. The disease
is incidental to the character of the business, occupation
and process in which the employee was employed. The doctor
stated that a third of his patients are occupational asthma
patients and approximately one-half of those are isocyanate
related asthma (Ex. 1, p. 8). The disease had its origin in
a risk connected with employment and was caused from that
source (isocyanates) as an incident and rational consequence
of it. The doctor said claimant would not be equally
exposed outside of the industrial setting. Iowa Code
section 85A.8. Furthermore, Dr. Fuortes established that
claimant's occupational asthma was due to the nature of her
employment in which the hazards did in fact actually exist
and which hazards were characteristic and peculiar to the
trade, occupation or process which uses isocyanates. Iowa
Code section 85A.12.
Claimant was seen again by a member of the Internal
Medicine Faculty and Clinics, John Glazier, M.D., a
pulmonary disease and critical care doctor, on June 25,
1990. She had not been seen in this clinic since November
3, 1988. Dr. Glazier noted that claimant's pulmonary
function studies and blood gases were within the normal
range in November of 1988. A pulmonary function test which
he performed on June 25, 1990, as well as a chest x-ray,
were again normal. Dr. Glaizer gave this impression:
"Pulmonary symptoms with no objective abnormalities. .....
It is not clear whether she is recovering from some acute
self-limited infectious problem or whether she is having
symptoms out of proportion to her objective measurements of
lung function." (Ex. 3, p. 44). Dr. Glaizer had no specific
therapy to offer claimant since he saw no evidence of acute
infection or acute bronchial spasm (Ex. 3, p. 44). Dr.
Glazier's report does not address the question of whether
claimant's complaints are related to or are not related to
exposure to industrial chemicals at work and it does not
Page 10
follow-up on the entry of Dr. Hanson that the plant was
being surveyed for this possibility.
Claimant was seen again by a third doctor at the
Internal Medicine Faculty and Clinics, Gregory A. Hicklin,
M.D., a pulmonary disease and critical care specialist, on
April 25, 1991. Dr. Hicklin gave a written report on April
25, 1991, (Ex. 3, pp. 45 & 46) and a deposition on October
3, 1991 (Ex. A). Dr. Hicklin's curriculum vitae shows that
he was board certified in internal medicine in 1980, board
certified in pulmonary disease in 1982 and board certified
in critical care medicine in 1988.
Dr. Hicklin acknowledged claimant's history briefly and
accurately. He stated "I saw Delores Matthews in the
Pulmonary Clinic in follow up of her history of exposure to
Isocyanate fumes. Mrs. Matthews worked at Thombert as a
Financial Administrator, and was exposed to Isocyanate
fumes. While working there, she developed symptoms of chest
tightness, breathlessness, and cough. ... She was away from
work for a couple of weeks, felt better; returned to work,
and the symptoms recurred." (Ex. 3, p. 45) Nevertheless,
Dr. Hicklin concluded that he found no evidence of
occupational asthma for the reason that there was never any
evidence of asthma produced by any of the many chest x-rays,
pulmonary function tests or methacholine inhalation
challenge tests. His physical examination on April 25,
1991, was normal, the pulmonary function tests were again
normal and the methacholine inhalational challenge test was
also normal (Ex. 3, pp. 45 & 46).
Dr. Hicklin did acknowledge, "Miss Matthews worked at a
company called Thombert that was involved in the production
of plastic and plastic products using a chemical isocyanate.
We had several people from the Thombert plant who had
respiratory difficulties due to the isocyanate." (Ex. A, p.
6)
Dr. Hicklin described asthma as reversible airway
obstruction associated with bronchial hyperreactivity and
increased sensitivity or reactivity of the lungs (Ex. A, p.
9). Dr. Hicklin had reviewed the reports of Dr. Hanson and
Dr. Glazier, the other members of his firm (Ex. A, pp. 6-14)
as well as his own objective tests (Ex. A, p. 15) and
concluded that there was no evidence of asthma because there
was no evidence of it on any of the objective tests (Ex. A,
pp. 15 & 16). Dr. Hicklin stated, "My opinion is that Mrs.
Matthews does not have occupational asthma. ... Because
there has never been any objective evidence of reversible
airway obstruction and because she has had two separate
negative methacholine challenges." (Ex. A, p. 19). Dr.
Hicklin stated that in his opinion (1) claimant had not
sustained any damage to her lung and (2) that there was no
evidence of bronchial hyperractivity and (3) that she is not
at an increased risk of developing lung problems in the
future and (4) that his opinion is based upon no evidence of
any asthma on pulmonary function tests and that she has had
two negative methacholine challenge tests which reflected
absence of bronchial hyperractivity (Ex. A, p. 20 & 21).
Page 11
Dr. Hicklin acknowledged again his firm had examined
several people employed by employer for similar symptoms at
approximately the same time that claimant was examined (Ex.
A, pp. 23 & 24). He also granted that isocyanates have been
clearly associated with the development of occupational
asthma but that everyone exposed did not develop
occupational asthma (Ex. A, p. 26). The doctor allowed that
the volkelan [sic] and isocyanate exposure that claimant was
exposed to was definitely in the industrial setting with
this employer (Ex. A, pp. 25-27). He declined to place any
mandatory restrictions on claimant but added that common
sense would dictate that if something bothers her she should
avoid it. He would not have advised her to terminate her
employment with employer (Ex. A, p. 27).
This colloquy transpired between Dr. Hicklin and
claimant's counsel:
"What about her history of having exposure and
then having these problems of chest tightness,
sensation of breathlessness, stuffiness of her
head, et cetera?
A. I cannot connect the two, the symptoms and the
exposure to the isocyanantes, other than
temporarily. I don't think there's a
cause-and-effect relationship.
Q. Do you have an opinion about what those
problems were related to, if not the exposure to
that chemical?
A. Well, my opinion is that those were an
overawareness of normal changes on Mrs. Matthews'
part, that those were related to a concern on her
part about her health, that those were
appreciating normal changes in body function. I
do not think that they were pathologic." (Ex. A,
pp. 28 & 29).
The opinion of Dr. Makowsky and Dr. Fuortes, who were
treating physicians, is preferred over the testimony of Dr.
Hicklin. Dr. Makowsky and Dr. Fuortes were responsible for
the ultimate outcome of their care and treatment of claimant
whereas Dr. Hicklin was simply a one time evaluator for the
purpose of providing testimony for this litigation.
Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187,
192 (Iowa 1985). Furthermore, the opinion of Dr. Fuortes is
more compatible with the other medical and nonmedical
evidence in this case and appears to be more responsible and
reliable.
Furthermore, the nonmedical evidence supports the
conclusion that claimant has sustained an occupational
disease.
Claimant and her husband testified that they took a
ten-day trip to Europe near the end of September and the
beginning of October of 1988 and while she was away from the
plant her symptoms completely disappeared (Trans., p. 27).
Page 12
Claimant testified that after Dr. Makowsky recommended
avoiding exposure to isocyanates that she obtained some
relief by working nights, week-ends and at times when
isocyanates were not being processed. Smith built her new
office at one end of the plant quite a ways away from the
processing of the vulkollan area. This helped some as long
as she stayed in her office but she found it necessary as a
vice president in charge of finance to be out in the factory
all of the time working with the people where she could see
what was going on and keep track of the inventory (Trans.,
pp. 34-38).
Claimant testified that Jim Chapman (Mobay
representative) was responsible for safety issues and the
use of the chemicals from Mobay. Claimant testified that
Chapman called her after Dr. Makowsky called Chapman to talk
about the symptoms claimant was experiencing at work.
Chapman was concerned because of a lawsuit brought by three
employees who claimed to be injured by exposure to
isocyanates while working for employer (Trans. pp. 38-45).
This law suit had been brought against employer, the
officers of employer (which included claimant as vice
president of finance) and Mobay. Chapman was concerned
after talking to Dr. Makowsky and recommended to claimant
that she not return to the processing area and be exposed to
isocyanates again (Trans., p. 43).
Claimant further testified that based upon Dr.
Makowsky's concern other changes were made at the plant
which included a better ventilating system and also work
practices such as putting a lid on the bucket filled with
these chemicals (Trans., p. 44).
Claimant testified that after her exposure to
isocyanates that she also reacted to other irritants such as
cold weather, solvents used in cleaning, fog and smog. She
continued to have problems with congestion, breathing and
voice changes when the chemical was being used in the plant
(Trans., p. 46). She denied and there is no evidence of
prior problems of this nature. Since leaving employer and
obtaining new employment she has improved steadily (Trans.,
pp. 46 & 47).
Claimant said that she chose to go to Dr. Fuortes after
Dr. Makowsky told her not to return to the workplace because
she loved what she was doing at Thomberts and did not want
to discontinue her employment there. She learned that Dr.
Furotes had expertise in this area and she wanted his
opinion (Trans., p. 49). Claimant testified that Dr.
Hanson, Dr. Glazier and Dr. Hicklin were defendants' choice
of physicians for her (Trans., pp. 50 & 51). Claimant
testified that both Dr. Makowsky and Dr. Fuortes recommended
that she should not have any exposure to isocyanates
(Trans., p. 52).
Claimant testified that she tried to resign in November
of 1988 but Smith asked her to reconsider to see if things
couldn't be worked out so that she could continue working
Page 13
there. Claimant submitted her resignation on December 21,
1988, to be effective on March 1, 1989, in order to complete
the annual audit and give employer time to find a
replacement. She started to work for the Maytag Company as
an accountant on March 13, 1989 (Trans., pp. 53 & 54).
Claimant testified that she has stayed healthier by
following the recommendations of Dr. Fuortes and Dr. Ruggle
of following a daily exercise program. Her problems have
continued but they are not as severe as they were. It is
something that she can manage now (Trans., pp. 59 & 60).
Dr. Fuortes, claimant and her husband testified that
claimant had improved substantially since she was first
affected by this disease and all three of them expected
improvement for an indefinite period of time into the future
(Trans., p. 23).
Claimant testified that she never lost any time from
work because she worked a full schedule by working nights
and weekends when they were processing vulkollan (Trans.,
p.123).
Claimant has not experienced health problems at Maytag
because isocyanates are not used at Newton and her office is
in a building one mile from the manufacturing area (Trans.,
p. 125). The Admiral plant at Galesburg, Illinois which
manufactures refrigerators and the Dixie-Narco plant at
Williston, South Caroline which manufactures vending
machines do use isocyanates and she had reactions when she
worked at these two areas briefly (Trans., pp. 59 & 60,
125-127).
Robert Johns testified that he was the director of
Human Services for employer in October of 1988 and as such
handled workers' compensation matters. Johns acknowledged
that he too was a defendant in the lawsuit filed by some
employees of Thombert regarding exposure to isocyanates in
the workplace (Trans., pp. 62-64). He said claimant
reported her symptoms to him immediately when she started
having problems. Johns said he contacted Dr. Hicklin and
advised him of what was going on and what the symptoms were
because the symptoms were pretty classical. Johns then
testified, "He frankly was very unresponsive at the time."
Johns said claimant then contacted Dr. Makowsky of the
Occupational Medicine Clinic (Trans., p. 65).
Johns testified that by classical symptoms he meant
that shortness of breath, tightness in the chest and
difficulty breathing were classical symptoms for when
somebody had been exposed to isocyanates. He had previous
experience with other persons having those same symptoms
while working for employer. Johns testified that he could
see that claimant wasn't feeling well and was having some
respiratory problems (Trans., p. 66).
Johns testified that he came to believe that claimant's
symptoms were work-related because of their similarity to
the complaints of other people in the plant and because he
felt that claimant was a woman of great integrity he had no
reason to doubt her word (Trans., pp. 69-72).
Page 14
Walter Smith, testified that he is currently chairman
of the board of employer and in October of 1988 he was
president of the company. He testified that the business of
Thombert, Inc. was to manufacture polyurethane elastomers,
which is synthetic rubber. He hired claimant to be the
controller of the company. She moved up fast and in 1988
she was vice president in charge of finance and a director
of the company (Trans., pp. 23, 62-76). She reported her
symptoms to Smith. He further testified "It was my opinion
that she might have a valid case for isocyanate
sensitization and that we needed a medical doctor's opinion,
so she should see a medical doctor to validate or confirm
the extent of the problems she was having." (Trans., pp.
76-81).
Smith testified there was a substantial change in the
manufacturing process after September and October of 1988.
In early 1987 the company began using vulkollan which is a
polyurethane elastomer which contains a chemical napthalene
diisocyanate, NDI, which is manufactured by the Bayer
Company in Germany and exported to the United States through
Mobay. The change that occurred in the fall of 1988 was
that at the volume of activity using this material was
increased and the number of parts manufactured were
increasing during that time. Also as the weather became
cooler ventilation efficiency decreased because the doors to
the plant were closed and the vents were blowing against the
negative air pressure within the plant (Trans., pp. 80 &
81). He personally noticed that claimant's voice was raspy.
Even after he built her new office she had continuing
symptoms. Smith believed that claimant's decision to resign
her job and seek other employment affirmed her belief that
she was sensitive to isocyanante (Trans., pp. 84-87).
Reluctantly he agreed to her decision (Trans., p. 91).
Johns testified that employer has never been cited by
OSHA for excessive isocyanate levels. He further
acknowledged that claimant had a monitor in her work area
which showed no detectable amounts of isocyanate. More than
250 tests were run prior to October of 1988 and they were
all below the threshold limit prescribed by OSHA for
isocyanates (Trans., pp. 99 & 100). However, Smith
clarified that OSHA is unable to measure napthalene
diisocyanate, so most of that testing for that chemical
component has been done by NIOSH or by the chemical
supplier, Mobay. OSHA has measured MDI and they have never
been close to the threshold limit on MDI. The NDI
measurements were performed about once every three months
from mid-1987 to the end of 1988 and these figures were
turned over to OSHA and that OSHA would have access to the
measurements that were done by Mobay (Trans., pp. 104-016).
Johns testified that the OSHA standards were safe but
that an employee who has become sensitized to isocyanates
can probably detect much more lower levels than the
measuring techniques are able to detect. Over half the
tests showed nondetectable levels of isocyanates. Very,
very few tests ever approached the threshold limit. Johns
testified that he still felt that there was employee
Page 15
sensitization and employee awareness of symptoms and felt
the necessity to take further action. However at the time
Mobay tested for NDI none of the levels were found to be in
excess of the OSHA standards prior to November of 1988
(Trans., pp. 104-112).
Fred Steensma, data processing manager, testified that
claimant was his immediate supervisor. He testified that he
detected that claimant was not feeling well from personal
observation and testified that he could observe that her
voice was raspy in October of 1988 (Trans., pp. 132-137).
Ronald Matthews, claimant's husband of twenty-eight
years, testified that in October of 1988 claimant developed
bronchial problems, cold like symptoms, difficulty
breathing, and fatigue. She experienced fright from not
being able to get enough air. At Christmas time in 1990,
she experienced an episode of distress after they were in a
grocery store where cleaning solvents were being used.
Weather and smog also effects her condition. He testified
claimant's health improved considerably since leaving
employer and also due to her efforts to maintain a state of
good health.
The OSHA log for the year 1988 shows a total of seven
claims by seven different individuals. The journal entry
for Delores Matthews states that she experienced classic
symptoms while working in her office of shortness of breath,
coughing and increased sensitivity to cold air (Ex. 2, p. 34
& 35). The office and the factory are all located in one
building (Trans., p. 22).
Another company record shows that 73 employees received
pulmonary function tests and that some of them were tested
on two, three or four occasions (Ex. 2, pp. 36-38). Another
personnel record shows that claimant authorized employer to
release her medical records to NIOSH (National Institute on
Occupational Health) for their review and research on May 6,
1989.
Therefore, looking at both the medical evidence and the
nonmedical evidence the greater weight of the evidence
establishes that claimant has sustained an occupational
disease. Claimant's condition, whether it be occupational
asthma or simply a pathologic reaction to isocyanates, is
peculiar to the nature of the employment in which the
hazards of the disease actually existed and which hazards
were characteristic and peculiar to the trade occupation and
process of manufacturing of polyurethane products with
napthalene diisocyanate (NDI). Iowa Code section 85A.12.
There is a direct causal connection between the employment
and claimant's condition as a natural incident to injurious
exposure occasioned by the nature of the employment. The
disease was incidental to the character of the business
occupation or process and not independent of the employment.
Iowa Code section 85A.8.
The OSHA claim log shows there were seven claims in
1988. Seventy-three employees were given pulmonary function
tests, some of them three or four times from 1986 through
Page 16
1988. Dr. Furotes said that the exposure outside of
claimant's employment was practically nil. Claimant is a
defendant along with other members of the management team in
the company and the supplier of the chemical brought by
three other employees because of their exposure to this
chemical in the course of their employment with this
employer.
Occupational asthma has been held to be an occupational
disease on several occasions Swan v. Industrial Engineering
Equipment Co., IV Iowa Industrial Report 353 (1984);
Anderson v. Carroll George, Inc., file number 776587, filed
Aug. 18, 1986; Clatt v. Sundstrand-Sour, file number 931119,
filed May 8, 1991; Senne v. Cedar Valley Farm Service, file
number 900344, filed May 9, 1991; Martin v. University of
Northern Iowa, file number 821570, filed March 13, 1991;
Loftsgard v. Walter Farms Inc., file numbers 976635 and
976636, filed April 20, 1992; (Appealed) Luehring v. Furnace
Electric Co., file number 981389, filed October 9, 1992.
Even if claimant's occupational disease was to be given
some other diagnostic title or no title at all it
nevertheless meets all of the requirements of Iowa Code
sections 85A.8 and 85A.12 as an occupational disease.
Claimant's condition also meets the two basic
requirements of the McSpadden case, to wit; (1) the disease
is causally related to exposure to harmful conditions in the
field of employment and (2) those harmful conditions are
more prevalent in the employment than in every day life or
in other occupations McSpadden, 288 N.W.2d 181, 190 (Iowa
1980).
Wherefore, it is determined that claimant has sustained
an occupational disease of occupational asthma which arose
out of and in the course of her employment with employer
because of exposure to napthalene diisocyanate (NDI).
causal connection
The same evidence summarized above also establishes
that this occupational disease was caused by claimant's
employment. No other cause was suggested for her condition.
Claimant established she had not experienced this condition
prior to this exposure with employer. Dr. Makowsky, Dr.
Fuortes, and even Dr. Hicklin, clearly associated her
condition with exposure to isocyanates while working for
employer as the only cause of her condition. The testimony
of claimant, claimant's husband, Smith, Johns, and Steensma
as well as the employee personnel records showing the number
of claims and the number of pulmonary function tests
performed on various employees clearly supports the opinion
of Dr. Makowsky and Dr. Fuortes that claimant's condition
was caused by her employment. Likewise, Chapman and Mobay
were concerned enough to perform several industrial tests at
claimant's place of employment. Claimant alleged that
Chapman advised her not to work where she would be exposed
to isocyanates. Mobay was sued by the other employees along
with the management team for whatever damages they were
seeking for exposure to this chemical.
Page 17
WHEREFORE, it is determined that this occupational
disease of occupational asthma was caused by claimant's
employment with this employer.
DISABLEMENT
Iowa Code section 85A.4 provides as follows:
"Disablement as that term is used in this chapter is the
event or condition where an employee becomes actually
incapacitated from performing the employee's work or from
earning equal wages in other suitable employment because of
an occupational disease as defined in this chapter in the
last occupation in which such employee is injuriously
exposed to the hazards of such disease.
It is determined that claimant has proven that she is
"actually incapacitated from performing the employee's
work."
At the time this industrial disease was incurred
claimant was fully capable of performing the work of an
industrial certified public accountant and vice president in
charge of finance for this employer. Dr. Fuortes testified
and he and the company physician and claimant agreed that
she was foreclosed from continuing to perform these duties
for employer in the future.
At the time of this occupational disease claimant was
able to perform the work of a certified public accountant in
any industrial setting. Now she is restricted from
performing the work of a certified public accountant in any
industry which employs the use of isocyanates. This is a
significant portion of the labor market. Dr. Fuortes said
that one-third of his patients have occupational asthma and
one-half of those were related to isocyanates. Thus,
claimant is actually incapacitated from performing the
employee's work that she was performing for this employer at
the time she incurred this disease, but she is also actually
incapacitated from performing the employee's work in any
industrial setting which uses isocyanates.
Dr. Fuortes, the treating physician, wrote in his
report and testified in his deposition that claimant won't
ever be able to be exposed to isocyanate fumes again without
risking her health and her life. This is just about as
close as you can get to actual incapacity in the context of
Iowa Code section 85A.4 without going over the line and
becoming totally incapacitated to perform any kind of work
because of death or permanent total disability.
Claimant has also proven that she is actually
incapacitated from earning equal wages in other suitable
employment. Claimant has demonstrated that she is a
hard-working individual, who worked, educated herself,
became a CPA and eventually became the vice president in
charge of finance for employer as well as a member of the
management team, a member of the board of directors and a
stockholder in the company (Trans., p. 23 & 120). Twelve
days after she terminated this employment due to this
Page 18
occupational disease she went to work for a new employer
within her community with lesser responsibilities, lesser
authority, lesser prestige and lesser income. Claimant is
an achiever, a demonstrated achiever. Certified public
accountant jobs are not the most common jobs in the
competitive employment market. Without evidence to the
contrary on the part of defendants it must be concluded that
claimant has sought out and obtained the highest paying and
best job that she could find in her community at the time it
became necessary to change jobs. Thus claimant has made out
a prima facie case that she has not been able to earn equal
wages in other suitable employment. Defendants introduced
no evidence to refute this conclusion or demonstrate the
fact that claimant was able to acquire any better employment
either from (1) persons in the local community, (2) the
manufacturing community, (3) the certified public accounting
community, or (4) through the use of vocational
rehabilitation experts.
Wherefore, it is determined that claimant has
established that she is actually incapacitated from
performing the work that she was performing in the
occupation she was performing for this employer when she was
injuriously exposed to the hazards of this disease at the
time she acquired this occupational disease. It is further
determined that she is actually incapacitated from her work
in any industry which employs isocyanates. She has further
established that she has not been able to earn equal wages
in other suitable employment. Thus, claimant has proven
both the requirements of disablement found in Iowa Code
section 85A.4 (1) actual incapacity from performing the
employees work and (2) earning equal wages in other suitable
employment --- both because of an occupational disease in
the last occupation in which the employee was injuriously
exposed to the hazards of the disease.
ENTITLEMENT
Both the Supreme Court of Iowa and the Court of Appeals
have determined that the industrial disability factors of
age, education, qualifications, experience and inability,
due to injury, to engage in the employment for which
claimant is fitted as described in the McSpadden case are
the same factors that should be used to determine a
claimant's disability for actual incapacity to perform her
work or to earn equal wages in other suitable employment, in
the application of Iowa Code section 85A.4. Doerfer
Division of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984);
Frit Industries v. Langenwalter, 443 N.W.2d 88, 91 (Iowa
Court of Appeals 1989).
Claimant was not awarded an impairment rating by Dr.
Fuortes or any of the other physicians. Nevertheless, an
impairment rating is not essential to an award of industrial
disability for occupational disease. McSpadden, 288 N.W.2d
181 (Iowa 1980); Frit v. Langenwalter, 433 N.W.2d 88, 91
(Iowa Court of Appeals 1989); Anderson v. Carroll George
Inc., file number 776587 filed August 18, 1986).
Page 19
Claimant's industrial disability is increased because
this occupational disease occurred at age 43 when she was at
or near the peak of her earning capacity. Becke v.
Turner-Busch, Inc., Thirty-fourth Biennial Report of the
Industrial Commissioner 34 (Appeal Decision 1979); Walton
v. B & H Tank Corp., II Iowa Industrial Commissioner Report
426 (1981); McCoy v. Donaldson Company, Inc., file numbers
782670 & 805200 (App. Dec. 1989).
After completing high school in 1963 claimant attended
Iowa Wesleyan College for two years from 1963 to 1965.
Later she attended Des Moines Area Community College in
Ankeny from 1972 to 1974 and received an associate of arts
degree in business. Then she attended Drake University from
1974 to 1980 and obtained a bachelor of science in
accounting and subsequently passed a CPA examination in
November of 1980 (Trans., p. 20). She was selected for
membership in Beta Alpha Psi, a national honor society for
accounting majors (Ex. 2, p. 56). Claimant is well educated
and very adaptable to additional education or training
Conrad v. Marquette School, Inc., IV Iowa Industrial
Commissioner Report 74, 89 (1984).
Claimant is foreclosed from performing certified public
accounting work for employer or any kind of work for any
employer where isocyanates are used. Dr. Fuortes testified
that he, the company physician and claimant determined that
she should terminate her employment with employer (Ex. 1, p.
15). Industrial settings where isocyanates are used are a
significant portion of the industrial manufacturing labor
market where claimant has her training and experience. Dr.
Fuortes testified that one-third of his patients have
occupational asthma and one-half of those cases are
industrial related to use of isocyanates (Ex. 1, p. 8).
Thus a significant portion of the industrial manufacturing
labor market for certified public accountants is foreclosed
to claimant Michael v. Harrison County, Thirty-fourth
Biennial Report of the Industrial Commissioner 218, 220
(App. Dec. January 30, 1979); Rohrberg v. Griffin Pipe
Products Co., I Iowa Industrial Commissioner Report 282
(1984).
Furthermore, Dr. Fuortes testified that claimant is
sensitized to isocyanates. He explained that normally a
person exposed to a chemical will build-up a tolerance for
it but certain persons become sensitized which means they
have a reduced tolerance which can result in serious illness
or death.
Claimant's health has improved since the termination of
her employment for employer due to eliminating exposure to
isocyanates but also because she has followed a rigorous
personal health program of diet, weight control and exercise
to maintain good body health. Claimant testified that when
she visited two plants while working for the new employer
where isocyanates were in use she immediately reacted to it
which confirms the sensitization diagnosis by Dr. Fuortes.
Thus even though claimant has no numerical functional
impairment rating she nevertheless has a physical disability
Page 20
due to this physical sensitization to isocyanates.
Likewise, claimant has sustained a change in earning
capacity. The primary indicator of a change in earning
capacity is actual earnings. Claimant testified that when
she began work at Maytag her earnings were only 71 percent
of what they were for employer which amounts to a 29 percent
actual loss of earnings. Claimant further testified that
after she received a raise on July 1, 1990, at Maytag her
earnings were still only 90 percent of what they were with
this employer in March of 1988, which amounts to a 10
percent actual loss of earnings. Claimant did not
demonstrate how these numbers were calculated.
A simple calculation is to look at claimant's W-2 forms
for the year 1988, the last full year in which she worked
for employer, which total $59,905.35. This income includes
base salary, profit bonus, inventory bonus, an automobile,
and life insurance. Claimant testified at the time of the
hearing on May 4, 1992, that her monthly income was $4,200
per month. This monthly income multiplied by 12 results in
an annual income of $50,400. This is $9,505.35 less than
she was earning for employer and constitutes an approximate
16 percent loss of actual earnings three years after the
transition from Thombert to Maytag.
Perhaps a more precise indicator would be to use
claimant's pay for the last 12 months that she worked for
employer from March 1, 1988 to March 1, 1989. These figures
total $53,521.16 paid to claimant for base salary, profit
bonus and inventory bonus (Ex. C). The car allowance is
calculated by using the 1989 W-2 amount of $1,267.50 on the
automobile W-2 form for January and February of 1989 and
adding to it $3,851.22 which is 83.33 percent of the 1988
automobile W-2 amount for the last ten months of 1988 (10 î
12 = 83.33). These figures total $58,639.88 ($53,521.16
plus $1,267.50 plus $3,851.22 equals $58,639.88). Thus, if
claimant was earning $58,639.88 for the last full year that
she worked for employer and is currently earning $50,400 (12
x $4,200) a year this constitutes an $8,239.88 loss of
income which amounts to a 14 percent loss of actual income.
Thus, claimant's contentions concerning her actual loss of
income are not exaggerated or overstated.
Wherefore, taking into consideration claimant's (1)
age, (2) education, (3) the fact that she is foreclosed from
working for employer, (4) or in industrial settings where
isocyanates are used, (5) her actual loss of earnings of 14
percent three years after her last injurious exposure which
is much less than they were when she first changed
employments in 1989, (6) the fact that claimant is
sensitized to isocyanates and possibly other workplace
chemicals, (7) that further exposure to isocyanates pose a
risk to her health and life, then it is determined that
claimant has sustained a 15 percent industrial disability to
the body as a whole. Claimant testified that she has
approximately the same fringe benefits with Maytag that she
Page 21
had with Thombert except that she now has to pay $30 a month
for her medical insurance whereas previously she was not
required to make any contribution for medical insurance
(Trans., p.129)
RATE
The rate should be determined based upon the date of
the occupational disease. The date of the occupational
disease should be based upon the date of the last injurious
exposure. Iowa Code section 85A.10. The date of the last
injurious exposure was March 1, 1989.
Claimant contends that the profit bonus should be used
to calculate her rate because it was a regular bonus. Iowa
Code section 85.61(3). Defendants contended it was not a
regular bonus. Claimant testified that she received the
profit bonus every year after she became an officer of the
company in 1985. Smith testified that the only contingency
for receiving the profit bonus was that the company make a
profit. The profit bonus was two percent of company's
pretax profit (Trans., pp. 94-98). Defendant's exhibit C
shows that claimant received five distributions of profit
bonus which total $10,891.16 between October of 1987 and
March of 1989. Unfortunately claimant did not receive the
1990 profit bonus in the amount of $10,000 because she was
no longer employed by employer at that time due to this
occupational disease (Trans., p. 103)
This colloquy transpired between claimant and counsel:
"Q. Let me ask you, was that bonus a regular bonus?
A. Yes. Each year the bonus was computed, and
employees could draw it at their discretion during
the year it was earned or during the following
year if they wanted to delay recognition of the
income." (Trans., pp. 95 & 96).
The profit bonus depended only on profit. There have
been years when no bonus was paid. However Smith conveyed
the idea that the employees were assured of a bonus with the
only contingency being that the company made a profit.
Smith testified "I've always told the management team at
Thombert that they'll earn their salary, and if they make
the company successful enough to pay big, big salaries, it
will pay big, big salaries." Thus, the weight of the
evidence in this case is that the bonus that claimant
received was a regular bonus. If a profit was made she
received a bonus. She received the bonus in every year
after 1985 when she became an officer. Thus claimant's
bonus was a regular bonus.
The parties agreed that even though claimant received a
monthly base salary that the rate should probably be
computed upon her annual income. Claimant contended that
the rate should be based upon the W-2 forms for the year
1988 (Trans., p. 7); whereas defendants asserted, "Our
position is that we need to arrive at a monthly rate for the
twelve months preceding the injury." (Trans., p. 9).
Page 22
Defendants are correct the rate should be based upon
the annual earnings for the year prior to March 1, 1989, the
date of the occupational disease, which is the date that
claimant was last injuriously exposed. Defendants conceded
that the car and life insurance should be included (Trans.,
p. 8).
Therefore using the figures on Defendants' exhibit C
for the monthly income that claimant received from March 1,
1988, until March 1, 1989, which includes both the profit
bonus and the inventory bonus totals $53,521.16. To this
should be added the automobile allowance which is not
contained in the itemization in exhibit C. Defendants
agreed that the automobile should be added to these figures
(Trans., p. 155). The automobile is calculated as
previously set out at $1,267.50 for 1989 and $3,851.22 for
1988. Thus claimant's gross earnings are $58,639.88
($53,521.16 plus $1,267.50 plus $3,851.22 equals
$58,639.88).
Defendants did not dispute that the inventory bonus was
a regular bonus. Moreover it appears to be a regular bonus
because it was paid every month in last year of employment
except two.
There is no evidence as to whether the life insurance
in the amount of $102 is to be added to these figures or not
in the calculation of the rate. Without evidence it cannot
be added to the above total in the calculation of the rate,
even though it can be used to determine claimant's estimated
loss of actual earnings. There is no evidence that life
insurance was or was not used in the monthly figures in
Exhibit C.
Gross earnings of $58,639.88 divided by 52 weeks equal
gross weekly earnings of $1,127.69. When this amount is
rounded up to $1,128, The Guide to Iowa Workers'
Compensation Claims Handling for the period beginning July
1, 1988 to June 30, 1989 shows that the proper weekly
compensation rate for a married person with four exemptions
is $629 per week. There was no dispute about the martial
status or the number of exemptions.
CONCLUSIONS OF LAW
Wherefore based on the foregoing and the following
principles of law these conclusions of law are made.
That claimant sustained an occupational disease of
occupational asthma from napthalene diisocyanate (NDI) which
arose out of and in the course of her employment with
employer on the date of her last injurious exposure to this
chemical on March 1, 1989. Iowa Code section 85A.8, 85A.10
and 85A.12.
That claimant did not sustain an injury which arose out
of and in the course of her employment with employer. Iowa
Code section 85.3(1).
Page 23
That claimant's occupational asthma was caused by the
use of isocyanates which were used at the place of her
employment and that the harmful conditions which caused her
occupational disease are more prevalent in her employment
for employer than in every day life or other occupations.
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 190 (Iowa
1980).
That the occupational asthma caused claimant to be
disabled and actually incapacitated from performing the
employee's work as a certified public accountant, for
employer, or any other work in an environment where
isocyanantes are in use, and also that claimant has
sustained the burden of proof by a preponderance of the
evidence that she is unable to earn equal wages in other
suitable employment as a certified public accountant because
of the occupational disease she acquired while working for
this employer. Iowa Code section 85A.4. Doerfer Division
of CCA v. Nicol, 359 N.W.2d 428 (Iowa 1984); Fritt
Industries v. Langelwalter, 443 N.W.2d 88 (Iowa Appeals
1989).
That claimant has sustained a 15 percent industrial
disability to the body as a whole and is entitled to 75
weeks of permanent partial disability benefits. Iowa Code
section 85A.17 and 85.34(2)(u).
That even though claimant was paid monthly,
nevertheless her monthly pay included amounts of regular
inventory bonus which was paid monthly and a regular profit
bonus which could be and was received anytime during the
year and therefore claimant's rate of compensation should be
annualized and divided by 52. Iowa Code section 85.36(5).
That claimant's gross annual earnings are $58,639.88
and that when this number is divided by 52 weeks produces a
gross weekly wage of $1,127.69 which results in a workers'
compensation rate of $629 for a married person with four
exemptions on the injury date of March 1, 1989. Iowa Code
section 85A.10; Guide to Iowa Workers' Compensation Claim
Handling July 1, 1988 to June 30, 1989.
ORDER
THEREFORE, IT IS ORDERED:
That defendants pay to claimant seventy-five (75) weeks
of permanent disability benefits at the rate of six hundred
twenty-nine dollars ($629) per week in the total amount of
forty-seven thousand one hundred seventy-five dollars
($47,175) commencing on March 1, 1989, as stipulated to by
the parties.
That interest will accrue pursuant to Iowa Code section
85.30.
That these benefits are to be paid in a lump sum.
That the costs of this action including the cost of the
attendance of the court reporter at hearing and the
Page 24
transcript of hearing are charged to defendants pursuant to
Iowa Code sections 86.19(1) and 86.40 and rule 343 IAC
4.33.
That defendants file claim activity reports as
requested by this agency pursuant to rule 343 IAC 3.1
Signed and filed this ____ day of November, 1992.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Iris J. Post
Attorney at Law
2222 Grand Ave.
Des Moines, IA 50312
Mr. E. J. Giovannetti
Attorney at Law
Suite 111
2700 Grand Ave.
Des Moines, Iowa 50312
1106, 1108.30, 1108.40,
1108.50
1401, 1402.20, 2201, 2203,
2205
1402.30, 1402,40, 1803, 3001,
3002, 3003
Filed November 19, 1992
Walter R. McManus, Jr.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DELORES MATTHEWS,
Claimant,
vs.
File No. 959319
THOMBERT, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
Defendants.
___________________________________________________________
1106, 1108.30, 1108.40, 1108.50, 1401, 1402.20, 2201, 2203,
2205
The greater weight of the evidence, both medical and
nonmedical, supported and established the determination that
claimant had sustained the occupational disease of
occupational asthma compensable under Iowa Code section 85A
and that she had not sustained an injury compensable under
Iowa Code section 85. Claimant's treating physicians were
preferred over defendants three one time evaluators even
although all three doctors were members of the same firm of
doctors and saw her at three different times. The decision
contains several cites summarizing the distinction between
an injury and an occupational disease. Claimant met all of
the qualifications for occupational disease contained in
Iowa Code sections 85A.8 and 85A.12.
The date of the occupational disease was the date of the
last injurious exposure. Iowa Code section 85A.10.
1108.30, 1108.40, 1402.30, 1402.40
Claimant was a certified public accountant who became (1) an
officer of the company as vice president in charge of
finance, (2) a member of the board of directors, (3) a
member of the management team involved in the decision
Page 2
making process of the company and (4) one of 18 select
stockholders and owners of the company. She sustained
occupational asthma from the use of isocyanates in the plant
and became sensitized to this chemical. The company
physician, her treating physician and claimant determined
that she should remove herself from this environment. The
treating physician said it was a matter of her life and
health.
It was determined that claimant was "actually incapacitated
from performing the employee's work ... because of an
occupational disease ... in the last employment in which
such employee is injuriously to the hazards of such
disease." Iowa Code section 85A.4. Claimant was foreclosed
from performing her work for this employer. Claimant was
also foreclosed from performing any industrial work or other
work in an environment where isocyanates were in use.
In addition, it was determined that claimant was "actually
incapacitated from ... earning equal wages in other suitable
employment because of an occupational disease ... in the
last occupation in which such employee is injuriously
exposed to the hazards of such disease." Iowa Code section
85A.8. Claimant obtained new employment as a senior
accountant for another company primarily as a record keeper
and preparer of financial statements. She alleged an
immediate loss of 29 percent of her former income and
alleged a 10 percent loss of income at the time of hearing.
These allegations could be supported by the record. Simple
calculations demonstrated an approximate 15 percent loss of
actual earnings at the time of hearing which was three years
after her last injurious exposure.
Thus, disablement was established not once but twice.
1803
It was determined that claimant had sustained a 15 percent
industrial disability to the body as a whole primarily based
on (1) claimants age of 43 and the peak earning period in
her working lifetime, (2) the fact that claimant was
physically sensitized to isocyanates which is a fairly
common industrial chemical which is used in the manufacture
of all polyurethane products and (3) that claimant is
foreclosed from working in an occupation where isocyanates
are in use because it is a threat to her life and health.
3001, 3002, 3003
Claimant's base monthly salary, profit bonus, inventory
bonus, and automobile compensation were used in determining
the rate. The life insurance compensation was not used only
because the record was silent as to whether the calculation
of wages in the record contained this element of her
compensation.
The profit bonus was conditioned only upon the company
making a profit. Claimant always received it once she
became eligible for it. It was determined to be a regular
bonus.
Page 3
The inventory bonus was paid practically every month. It
was determined to be a regular bonus.
Even though claimant was paid monthly, nevertheless, (1) her
compensation contained the profit bonus which was paid
annually as she called for it and (2) the inventory bonus
which varied from month to month and (3) the automobile
compensation which apparently was paid separately. Thus,
claimant actually had an annual income even though she
received compensation monthly and the rate was computed
pursuant to Iowa Code section 85.36(5) as the closest
pertinent statute by adding up the annual income and
dividing by 52.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
RICKI GAYLE WYMORE, :
:
Claimant, :
:
vs. :
: File No. 959325
KEIM TRANSPORTATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
UNITED STATEDS FIDELITY :
AND GUARANTY COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Ricki
Gayle Wymore against Keim Transportation and its insurance
carrier, United States Fidelity and Guaranty Company, based
upon an injury that occurred on April 30, 1990. Claimant
seeks compensation for healing period and permanent partial
disability. A primary issue in the case is whether the
injury occurred within the state of Iowa and whether the
state of Iowa has jurisdiction over this case.
The case was heard at Des Moines, Iowa, on February 24,
1992. The record consists of testimony from Steven Koenig,
Jack Green and the claimant. The record also contains
claimant's exhibits 1 through 14 and defendants' exhibits A
through D and F through L.
FINDINGS OF FACT
Having considered all the evidence received, together
with the appearance and demeanor of the witnesses, the
following findings of fact are made.
Ricki Gayle Wymore is a 42-year-old high school
graduate who commenced employment with Keim Transportation
as a truck driver in early 1990. During the period of time
running from April 29, 1990 through May 1, 1990, his truck
driving duties took him from Kansas City, Missouri to
Sabetha, Kansas, then to Omaha, Nebraska, then to St.
Joseph, Missouri, then to Des Moines, Iowa, then to Osseo,
Minnesota, then to Minneapolis, Minnesota, then to Windsor
Heights, Iowa. Apparently, claimant thereafter left Windsor
Heights, Iowa and returned to Sabetha, Kansas on May 2,
1990.
Claimant testified at hearing and contends that he was
injured on April 30, 1990, by falling at approximately 10:00
Page 2
a.m. at the Bar-B Truck Stop at Des Moines, Iowa. He
related that he had slept there for a few hours, showered
and eaten breakfast. Claimant related at hearing that he
was then securing his load of wire and fell from the trailer
falling back, and landing on his left shoulder and neck area
(Defendants' Exhibit B, page 29). The injury was not
reported to the employer, however, until claimant had
arrived in Minnesota. According to the driver's log,
claimant left Des Moines at approximately 3:00 p.m. on April
30, arrived at Osseo, Minnesota, and unloaded at
approximately 7:30 p.m. on April 30, 1990. According to the
driver's log, claimant had been in Des Moines from 5:00 a.m.
until approximately 3:00 p.m. on April 30, 1990 (Def. Ex. F,
p. 45). The freight bill confirms that the wire was
unloaded at Osseo, Minnesota, on June 30, 1990.
The record shows no witnesses to the claimant's fall.
Accordingly, the claimant's credibility with regard to the
place where he fell is an extremely important matter. It is
noted that the records from his initial physician's visit
report that he fell on Monday evening (Def. L, p. 1). Those
same notes also indicate that he landed on his right hand
and caught himself.
Claimant's credibility is most severely damaged by his
house painting activities during late October of 1990.
Claimant had been enrolled in a work conditioning program
but then discontinued the program reporting that it was too
painful for him (Cl. Ex. 11; Def. Ex. K, p. 22; Def. Ex. J -
Professional Nurse Consultants, pp. 7-9). At that same
period of time, claimant was observed working painting
houses. The undersigned, having observed the video tape of
the claimant performing painting activities, could detect no
obvious indication that the claimant was experiencing any
type of physical problems. He made extensive vigorous use
of both of his hands and arms (Def. Ex. A).
There is no corroboration in the record of this case
for any of the claimant's testimony that the injury occurred
in Des Moines, Iowa, other than the driver's log which shows
that he was in Des Moines, Iowa, at approximately 10:00
a.m., the time when the claimant has stated that the injury
occurred. All the other evidence in the record shows the
injury to have occurred in the evening, at which time the
claimant was in the state of Minnesota. It is generally
reputed that Iowa provides a relatively high weekly rate of
compensation in comparison to some of the surrounding
states. That would provide ample incentive for an
individual to seek to have an injury covered under the Iowa
law, rather than the law of Kansas, Nebraska or Minnesota.
In this case, the claimant's credibility has been severely
impaired by the reports of being in too much pain to attend
therapy yet engaging in the occupation of house painting.
His uncorroborated testimony of being injured in Des Moines,
Iowa, is contradicted by the initial medical records and is
deemed to be not sufficiently strong to enable the
undersigned to find that his testimony is probably correct.
Page 3
It is possible that claimant fell and injured himself on the
morning of April 30, 1990, at Des Moines, Iowa, as he
testified. The evidence in this case fails to show that
possibility to be any more likely than the possibility that
he fell on the evening of April 30, 1990, in the state of
Minnesota. No finding is made regarding where the alleged
incident occurred, only that the evidence presented at this
hearing does not show it to be probable that it occurred in
Iowa.
CONCLUSIONS OF LAW
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on April 30,
1990, which arose out of and in the course of his
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904
(Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa
352, 154 N.W.2d 128 (1967).
An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).
A preponderance of the evidence exists when the showing
is probable rather than merely possible. Blacksmith v. All
American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); Holmes v.
Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). It
is therefore concluded that Ricki Gayle Wymore has failed to
prove by a preponderance of the evidence that he sustained
any injury in the state of Iowa on or about April 30, 1990.
If an injury occurs within the state of Iowa, the Iowa
Industrial Commissioner has jurisdiction. Schmidt v.
Pittsburgh Plate Glass Co., 243 Iowa 1307, 55 N.W. 227
(1952). In order for this case to be within the
jurisdiction of the Iowa Industrial Commissioner and under
the Iowa workers' compensation laws, the injury must either
occur within the state of Iowa or otherwise fall within the
provisions of Iowa Code section 85.71. Claimant has failed
to prove that the injury occurred in the state of Iowa. No
determination is made regarding whether it happened in some
other state. There is no evidence in the record of this
case to support jurisdiction for an injury which occurred
outside the state of Iowa since the employer's business has
not been shown to be principally localized within the state
of Iowa, the claimant does not regularly work within the
state of Iowa, the claimant's contract of hire was not made
within the state of Iowa. There is therefore no basis for
finding jurisdiction under any of the options provided under
Iowa Code section 85.71.
Jurisdiction of the subject matter is the power to hear
and decide cases of the general class to which the
proceedings belong. Green v. Sherman, 173 N.W.2d 843, 846
(Iowa 1970). If it is absent, an order dismissing the
petition is the only appropriate disposition. Lloyd v.
State, 251 N.W.2d 551, 558 (Iowa 1977).
It is therefore concluded that the state of Iowa and
Iowa Industrial Commissioner does not have jurisdiction of
Page 4
the claimant's claim in this case.
ORDER
IT IS THEREFORE ORDERED:
That this proceeding is dismissed for lack of subject
matter jurisdiction.
The costs of this action are assessed to the party that
incurred each item of cost and neither party is entitled to
reimbursement for costs from the other party.
Signed and filed this ______ day of July, 1992.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr William F. McGinn
Attorney at Law
Third Flr Executive Ste
Firstar Bank of Council Bluffs
Council Bluffs IA 51503
Ms Iris Post
Attorney at Law
222 Grand Ave
Des Moines IA 50306
2301; 1402.30
Filed July 30, 1992
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RICKI GAYLE WYMORE,
Claimant,
vs.
File No. 959325
KEIM TRANSPORTATION,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
UNITED STATES FIDELITY
AND GUARANTY COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
2301; 1402.30
Held that claimant had the burden of proving that his injury
occurred within the state of Iowa in order to establish
subject matter jurisdiction. Where the claimant's
credibility was successfully challenged, his uncorroborated
testimony was found to be insufficient to show it to be
probable that his injury occurred in this state. It was
recognized that the relatively generous weekly benefits
allowed in the state of Iowa would give an individual a
motive to claim an injury occurred in the state of Iowa when
it in fact had occurred elsewhere.
before the iowa industrial commissioner
____________________________________________________________
_____
:
RONALD R. MULVANIA, :
:
Claimant, : File No. 959327
:
vs. : A P P E A L
:
ALUMINUM COMPANY OF AMERICA, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
_____
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal. The decision of the deputy
filed February 27, 1992 is affirmed and is adopted as the
final agency action in this case.
Defendant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of February, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Michael W. Liebbe
Attorney at Law
P.O. Box 339
Davenport, Iowa 52805-0339
Mr. Thomas N. Kamp
Attorney at Law
600 Davenport Bank Bldg.
Davenport, Iowa 52801
1803; 1803.1; 2800
Filed February 26, 1993
Byron K. Orton
MAM
before the iowa industrial commissioner
____________________________________________________________
_____
:
RONALD R. MULVANIA, :
:
Claimant, : File No. 959327
:
vs. : A P P E A L
:
ALUMINUM COMPANY OF AMERICA, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
_____
2800
Claimant sustained a cumulative injury to the left shoulder
after he engaged in repetitive type activities at work.
Claimant used his left shoulder and arm to brace wood when
sliding boards through a saw. Claimant was credible.
Claimant's treating orthopedic surgeon established the
requisite causal connection. Defendant had proper notice.
1803; 1803.1
It was determined that claimant had a permanent partial
disability to the body as a whole of eight percent.
Claimant was also awarded healing period benefits.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
RONALD R. MULVANIA, :
: File No. 959327
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
ALUMINUM COMPANY OF AMERICA, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition
of claimant, Ronald R. Mulvania, against his self-insured
employer, Aluminum Company of America, defendant. The case
was heard on February 18, 1992, at the Davenport Division of
Job Service Building. The record consists of the testimony
of claimant. The record also consists of the testimony of
Jim Bates, unit supervisor, and Don Olsen, ergonomist with
defendant-employer. Additionally, the record consists of
claimant's exhibits C-1 through C-8, and employer's exhibits
pages 1-48 including exhibit 10, a videotape.
issues
The issues to be determined are: 1) whether claimant
received an injury which arose out of and in the course of
employment; 2) whether there is a causal relationship
between the alleged injury and the disability; 3) whether
claimant is entitled to temporary disability/healing period
benefits or permanent disability benefits; and, 4) whether
claimant tendered notice pursuant to section 85.23, Iowa
Code, as amended.
findings of fact
The deputy, having heard the testimony and considered
all the evidence, finds:
Claimant is nearly 38 years old. He is married with
three children. Claimant is a 1973 high school graduate.
He commenced his employment with defendant at age 19.
Except for a period when he was laid off from defendant,
claimant has worked continuously in the box shop. The box
shop has been renamed the "container fabrication
department."
Claimant's job classification is that of saw operator.
He is required to move boards through a saw and to cut those
boards into various lengths. Claimant operates the saw by
pushing buttons with both hands. Claimant testified he was
often required to wedge boards into the saw and that he used
Page 2
his left shoulder and left arm to brace the wood and to push
down on the boards. Claimant also testified that he
performed his saw operating tasks approximately 100 to 150
times per hour. During the winter and spring of 1990,
claimant was working overtime hours. During most weeks that
year, claimant worked in excess of 40 hours per week.
Claimant eats and writes with his left hand. He is an
avid sports person and he plays sports with his right hand.
Claimant plays volleyball and softball. He coaches girls
softball as well. When he was a high school junior,
claimant sustained a neck and left shoulder injury which was
asymptomatic from 1973 through 1989.
Claimant testified his left shoulder gradually began to
tire and to cause pain. He stated the ache in his shoulder
worsened. As a consequence, claimant sought treatment from
his family physician, E. Mehl, D.O. The family physician
referred claimant to an orthopedic surgeon, Anthony
D'Angelo, D.O.
Dr. D'Angelo diagnosed claimant as having tendonitis of
the left shoulder. Later Dr. D'Angelo modified his
diagnosis. He performed a decompression of the left
shoulder, he removed a portion of the acromion as well as a
portion of the coracoacromial ligament and Dr. D'Angelo
repaired a small rotator cuff tear.
Physical therapy was prescribed subsequent to the surgery.
As of October 26, 1990, Kevin D. Camden, LPT, opined: "He
currently has full AROM in his left shoulder and also has
full strength in the left shoulder. I feel he will be
capable of returning to work with no further problems."
(Exhibit 3, page 17)
In June of 1991, Dr. D'Angelo evaluated claimant for
purposes of rendering an impairment rating. Dr. D'Angelo
opined that:
It is my opinion Ron Mulvania has reached maximum
medical improvement to the left shoulder. It is
my opinion, there is a 5% impairment of the left
upper extremity secondary to residual symptoms of
an anterior impingement syndrome at the left
shoulder, as well as a rotator cuff tear. At your
request, the memorandum from Zack Washington was
reviewed and I did discuss this with Mr. & Mrs.
Mulvania. It is my opinion, a pre-exsisting [sic]
condition of a minor degree was present involving
this left shoulder. It is my opinion activities
at work, exacerbated this pre-exsisting [sic]
condition. I would rate on the basis of discus
sion with Mr. & Mrs. Mulvania, the preexsisting
[sic] condition to be less than 25% of the total
problem involving this shoulder. It is my
opinion, current impairment to the left shoulder
is secondary to involvement at work and I would
place involvement at work as 75% responsible for
patient's current condition.
Impairment rating is based on Guides to Evaluation
Page 3
of Permanent Impairment, 3rd edition, published by
the American Medical Association.
(Ex. 2, p. 7)
On October 29, 1990, claimant returned to work as a saw
operator. He was not given any physical restrictions.
Since that time, claimant has missed no work because of his
left shoulder condition. Claimant has also worked all
overtime which has been offered to him since his return. At
the time of the hearing, claimant was earning $12.94 per
hour. Claimant has sustained no wage loss since his left
shoulder injury.
conclusions of law
The first issue to address is whether claimant has
sustained an injury which arose out of and in the course of
his employment.
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. The words "arising out of" refer to the
cause or source of the injury. The words "in the course of"
refer to the time, place and circumstances of the injury.
Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986);
McClure v. Union, et al., Counties, 188 N.W.2d 283, 287
(Iowa 1971).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296,
297 (Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscarshoulder condition occurred
gradually and over the course of several months. Claimant's
description of his work procedures was credible. Claimant
illustrated for the undersigned how he used his left
shoulder and arm and what type of pressure he exerted on his
left shoulder. The videotape, which was viewed during the
hearing, corroborated, in part, claimant's rendition of his
work injury. Claimant has proven that he has sustained an
injury which arose out of and in the course of his
employment on May 23, 1990.
Defendant, as an affirmative defense, maintains it did
not have adequate notice pursuant to section 85.23 of the
Iowa Code.
Section 85.23 of the Iowa Code provides:
Unless the employer or the employer's
representative shall have actual knowledge of the
occurrence of an injury received within ninety
days from the date of the occurrence of the
injury, or unless the employee or someone on the
employee's behalf or a dependent or someone on the
dependent's behalf shall give notice thereof to
the employer within ninety days from the date of
the occurrence of the injury, no compensation
shall be allowed.
Failure to give notice is an affirmative defense which
the employer must prove by a preponderance of the evidence.
DeLong v. Highway Commission, 229 Iowa 700, 295 N.W. 91
(1940). Mefferd v. Ed Miller & Sons, Inc., Thirty-Third
Biennial Report of the Industrial Commissioner 191 (Appeal
Decision 1977).
The time period contemplated in Iowa Code section 85.23
does not begin to run until the claimant has knowledge of
the nature of his disability. Jacques v. Farmers Lbr. &
Sup. Co., 242 Iowa 548, 47 N.W.2d 236, 239 (1951).
Page 5
An employer's actual knowledge of occurrence of injury
must include some information that the injury is
work-connected in order to satisfy the alternative notice of
claim requirement. Robinson v. Department of Transp., 296
N.W.2d 809, 812 (Iowa 1980). The interpretation in Robinson
was confirmed in Doerfer Division of CCA v. Nicol, 359
N.W.2d 428, 435 (Iowa 1984).
A claimant's duty to give notice of injury arises when
the claimant should recognize the nature, seriousness and
probable compensable character of his injury or disease.
The reasonableness of claimant's conduct is to be judged in
light of his education and intelligence. Claimant must know
enough about the injury or disease to realize that it is
both serious and work-connected, but positive medical
information is unnecessary if he has information from any
source which puts him on notice of its probable
compensability. Robinson, supra.
The purpose of the 90 day notice or actual knowledge
requirement is to give the employer an opportunity to timely
investigate the acts of the injury. Id.: Knipe v. Skelgas
Co., 229 Iowa 740, 748, 294 N.W. 880, 884 (1940); Hobbs v.
Sioux City, 231 Iowa 860, 2 N.W.2d 275 (1942); Dillinger v.
City of Sioux City, 368 N.W.2d 176 (Iowa 1985). Koopmans v.
Iowa Electric Light and Power Company, (Appeal Decision
dated December 30, l981) on appeal to Iowa Supreme Court).
The word "compensable" in the workers' compensation
notice context is not used to connote legal knowledge that a
claim is within the workers' compensation act. Rather,
"compensable" means that the disabling injury was work
connected. Quaker Oats Co. v. Miller, 370 So.2d 1363, 1366
(Miss. 1979).
Unless a statute that imposes a period of limitations
expressly authorizes exceptions for extenuating
circumstances, it must be applied uniformly even though the
result may be harsh. Burgess v. Great Plains Bag
Corporation, 409 N.W.2d 676, 679 (Iowa 1987).
A mistake of law is no more an excuse in connection
with a late compensation claim than anywhere else, unless
expressly made so by statute. 3 Larson, Workmen's
Compensation Law, Section 78.47 at 15-334.
The initial determination in the instant case, is
whether claimant has given notice of his claim to his
employer under section 85.23. The statute allows for two
types of notice.
The first type of notice is actual knowledge of the
occurrence of an injury within 90 days. The second type of
notice allowed by statute is notice given to the employer by
the injured employee within 90 days from the date of the
occurrence of the injury. Claimant admits no formal written
notice was tendered to employer.
Claimant alleges an injury date of May 23, 1990. He
testified at his hearing that he noticed left shoulder
Page 6
problems in January of that year. However, claimant did not
know the cause of his left shoulder and arm pain. He first
sought medical treatment as of May 23, 1990. His family
physician had no knowledge regarding the cause of the pain.
The family doctor referred claimant on to an orthopedic
surgeon. It was not until July of 1990 that claimant was
told by a physical therapist that claimant's work duties may
have had a role in claimant's deteriorated physical
condition. The defendant's injury/illness report indicates
knowledge of the alleged work injury per claimant's verbal
notification as of July 6, 1990. The notification period is
well within the 90 day rule.
Defendant has not met its burden of proving its
affirmative defense.
Claimant has also established the requisite causal
connection. Dr. D'Angelo opined that:
It is my opinion, a pre-exsisting [sic] condition
of a minor degree was present involving this left
shoulder. It is my opinion activities at work,
exacerbated this pre-exsisting [sic] condition. I
would rate on the basis of discussion with Mr. &
Mrs. Mulvania, the preexsisting [sic] condition to
be less than 25% of the total problem involving
this shoulder....
(Ex. 2, p. 7)
Dr. D'Angelo's opinion is accorded great weight. He is
the treating physician. He is a specialist in orthopedic
surgery. Claimant has established that his condition is
related to his job activities.
The next issue to discuss is the issue of permanent
partial disability benefits. Claimant alleges he is
industrially disabled.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson, 255 Iowa 1112, 125 N.W.2d 251
(1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d
660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Page 7
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Peterson v.
Truck Haven Cafe, Inc., (Appeal Decision, February 28,
1985); Christensen v. Hagen, Inc., (Appeal Decision, March
26, 1985).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
In the case before this deputy, claimant has sustained
a left torn rotator cuff injury. When disability is found
in the shoulder, a body as a whole situation may exist. Alm
v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161
(1949). In Nazarenus v. Oscar Mayer & Co., II Iowa
Industrial Commissioner Report 281 (App. Decn. 1982), a torn
rotator cuff was found to cause disability to the body as a
whole. Claimant's injury is to the body as a whole. Dr.
D'Angelo has opined that claimant has a five percent
functional impairment. Dr. D'Angelo has also opined that as
of October 26, 1990, claimant had full range of motion of
the left shoulder as well as full strength in that shoulder.
Claimant has returned to his former position without restric
tions. Claimant's rate of pay has not decreased because of
his left shoulder condition. Claimant is able to perform
overtime hours at the rate specified in the collective
bargaining agreement, so long as claimant uses a modified
approach to his job. Claimant can no longer use his left
arm and shoulder as the sole brace for placing boards into
the saw. Claimant has had to modify his work tasks so that
he restricts the use of his left shoulder and arm. He
Page 8
cannot overuse his left shoulder or else he experiences
pain. Likewise, claimant is unable to perform tasks when he
is lying on his back with his arms extended upwards.
Claimant's left shoulder and arm also bother him when he
engages in the hand nailing of wooden skids.
Currently, claimant's position is not in jeopardy
because of his left shoulder. His job is stable.
Claimant's wages have not decreased. However, claimant has
had to modify his work tasks when he operates a saw.
Therefore, it is the determination of the undersigned that
claimant is entitled to an eight percent permanent partial
disability commencing on October 29, 1990, at the stipulated
rate of $463.46 per week.
Claimant is also entitled to healing period benefits
from July 30, 1990 through October 28, 1990, at the
corrected stipulated rate of $463.46 per week. This period
comprises 13 weeks.
Defendant is entitled to a credit for sick and accident
benefits previously paid to claimant pursuant to section
85.38(2). The amount of credit allowed to an employer for
disability income payments made under a group plan is the
net amount which the employee realizes after any income
taxes attributable to the group disability income payments
are deducted from the total amount of payments actually
paid. See Beller v. Iowa State Penitentiary, File No.
799401 (Appeal Decision July 10, 1991).
order
THEREFORE, IT IS ORDERED:
Defendant is to pay unto claimant thirteen (13) weeks
of healing period benefits at the corrected stipulated rate
of four hundred sixty-three and 46/l00 dollars ($463.46) per
week.
Defendant is to also pay unto claimant forty (40) weeks
of permanent partial disability benefits at the corrected
stipulated rate of four hundred sixty-three and 46/l00
dollars ($463.46) per week and commencing on October 29,
1990.
Accrued benefits are to be paid in a lump sum together
with statutory interest at the rate of ten percent (10%) per
year pursuant to section 85.30, Iowa Code, as amended.
Defendant shall receive credit as aforementioned for
sick and accident benefits paid to claimant pursuant to
section 85.38(2) of the Iowa Code, as amended.
Defendant shall file a claim activity report as
requested by this division and pursuant to rule 343 IAC 3.l.
Signed and filed this ____ day of February, 1992.
Page 9
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Page 10
Copies To:
Mr. Thomas N. Kamp
Attorney at Law
600 Davenport Bank Bldg
Davenport IA 52801
Mr. Michael W. Liebbe
Attorney at Law
116 E 6th St
P O Box 339
Davenport IA 52805
1803; 1803.1; 2800
Filed February 27, 1992
MICHELLE A. McGOVERN
before the iowa industrial commissioner
____________________________________________________________
:
RONALD R. MULVANIA, :
: File No. 959327
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
ALUMINUM COMPANY OF AMERICA, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
2800
Claimant sustained a cumulative injury to the left shoulder
after he engaged in repetitive type activities at work.
Claimant used his left shoulder and arm to brace wood when
sliding boards through a saw. Claimant was credible.
Claimant's treating orthopedic surgeon established the
requisite causal connection. Defendant had proper notice.
1803; 1803.1
It was determined that claimant had a permanent partial
disability to the body as a whole of eight percent.
Claimant was also awarded healing period benefits.
1803
Filed April 23, 1992
MICHELLE A. McGOVERN
before the iowa industrial commissioner
____________________________________________________________
:
ELMER J. LATHROP, :
:
Claimant, :
:
vs. : File Nos. 959330
: 951789
ABILD CONSTRUCTION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
AETNA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1803
Claimant was a 52-year-old ironworker who injured his back
while working. Claimant was determined to have a 60 percent
permanent partial disability. Claimant was highly
motivated. He obtained a GED in the recent past. He had
looked into additional training. He had participated in
vocational rehabilitation. Claimant was precluded from
returning to the job of an ironworker. He was preparing to
enter a course for dental lab work.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DOUGLAS BARKER, :
:
Claimant, : File Nos. 959334
: 959335
vs. :
:
INTERNATIONAL PAPER COMPANY, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
Self-Insured, :
Defendant. :
:
___________________________________________________________
STATEMENT OF THE CASE
This decision concerns two procedures in arbitration
brought by Douglas Barker against his employer,
International Paper Company based upon alleged injuries of
July 1, 1989 and October 5, 1990. At issue in both cases is
whether Barker sustained injuries on or about the days
alleged which arose out of and in the course of his
employment; whether the alleged injuries were a proximate
cause of any disability; and, determination of his
entitlement of weekly compensation for healing period,
temporary total disability or permanent partial disability.
The case was heard at Davenport, Iowa on May 19, 1993.
The evidence consists of testimony from Douglas Barker,
Susann Nixon and Teri Gertsen. The record also contains
jointly offered exhibits 1 through 25, B, C, E and F.
FINDINGS OF FACT
Douglas Barker has been employed at International Paper
Company for 19 1/2 years. In 1977, he sustained a back
injury which caused him to miss several weeks of work. He
felt that he recovered from that injury but also indicated
that he has had intermittent back problems since that injury
and that those problems have been gradually worsening. The
record in this case shows a number of times when Barker
sought medical care for his back prior to July of 1989.
Those include October of 1982, July of 1985 and September of
1988 (Exhibit 2, pages 6 and 7).
Douglas asserts that he sustained traumatic injury in
early July 1989 and again on October 5, 1990. The first
notice Douglas gave his employer of the alleged 1989 injury
was in early August when he was being subjected to
disciplinary proceedings for absenteeism. There is nothing
in the record which indicates that Douglas sought medical
care for the 1989 injury prior to the time that the
disciplinary proceedings were held. The medical histories
shown in the records of his treatment do not contain any
indication that Douglas had experienced an acute trauma. To
Page 2
the contrary, the records seem to indicate the gradual onset
of worsening back pain. While there is nothing about this
claimant's appearance and demeanor which led the undersigned
to believe that he was fabricating, the total lack of
corroboration for the alleged sequence of injury in July of
1989 detracts greatly from the weight to be given to the
claimant's testimony. The fact that the employer was first
given notice of the injury allegation as a defense to a
disciplinary action further weakens the claim. While the
fact of loss of lumbar lordosis or curve and marked
vertebral muscle spasm is evidenced by the medical records
(Ex. 4, pp. 15-16), the fact remains that there is a
scarcity of evidence showing those symptoms to have resulted
from anything that occurred at work on or about July 1,
1989. When the evidence in this case is viewed as a whole,
it fails to show that it is probable that Douglas Barker
injured his back on or about July 1, 1989 in the manner he
asserts.
The second alleged incident, the one of October 5,
1990, was reported to the employer more than a week after
the alleged injury date. Medical care was sought
approximately four days after the alleged injury (Ex. 4, p.
24). As with the earlier allegation of injury, the medical
records do not contain a history of an acute trauma of the
type described at hearing. It is found that the record in
this case, when viewed as a whole, fails to show it to be
probable that Douglas Barker sustained any injury to his
back that was associated with the duties of his employment
on or about October 5, 1990.
The diagnostic radiographic studies and other objective
tests have largely been interpreted as being within normal
limits. There is no physiological objective evidence of
injury. Douglas Barker's back apparently was weakened by
the 1977 injury. He appears susceptible to flare-ups. He
apparently experienced flare-ups in August of 1989 and again
in October of 1990. The record fails to show it to be
probable, however, that his employment was a substantial
factor in producing either of those two flare-ups.
CONCLUSIONS OF LAW
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
A personal injury contemplated by the workers'
compensation law means an injury, the impairment of health
or a disease resulting from an injury which comes about, not
through the natural building up and tearing down of the
human body, but because of trauma. The injury must be
Page 3
something which acts extraneously to the natural processes
of nature and thereby impairs the health, interrupts or
otherwise destroys or damages a part or all of the body.
Although many injuries have a traumatic onset, there is no
requirement for a special incident or an unusual occurrence.
Injuries which result from cumulative trauma are
compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d
368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa
1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iut of and in the course of his employment on or about
either of the two dates alleged in the petitions. Further,
the evidence fails to contain any opinion from any physician
which indicates that any trauma which might have occurred on
either of the two dates alleged produced the disability upon
which this claim is based. To the contrary, attending
physicians' statements found at pages 85-92 of the record
tends to indicate that either it is not a work-related
condition or that it is related to the 1977 injury.
It is therefore concluded that Douglas Barker has
failed to prove that he is entitled to any recovery in
either of these cases.
ORDER
IT IS THEREFORE ORDERED that Douglas Barker take
nothing in file number 959334 and that he likewise take
nothing in file number 959335. His claims against the
Page 4
employer in those two files are dismissed, on the merits,
with prejudice.
IT IS FURTHER ORDERED that the costs in both
proceedings are assessed against the claimant pursuant to
rule 343 IAC 4.33.
Signed and filed this ____ day of August, 1993.
________________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr James P Hoffman
Attorney at Law
Middle Rd
P O Box 1087
Keokuk IA 52632-1087
Mr Greg A Egbers
Mr Craig Levien
Attorney at Law
600 Union Arcade Bldg
111 E 3rd St
Davenport IA 52801
5-1402.20; 5-1402.30
Filed August 5, 1993
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DOUGLAS BARKER,
Claimant, File Nos. 959334
959335
vs.
INTERNATIONAL PAPER COMPANY, A R B I T R A T I O N
Employer, D E C I S I O N
Self-Insured,
Defendant.
___________________________________________________________
5-1402.20; 5-1402.30
Claimant failed to prove injury arising out of and in the
course of employment.