BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
KIMBERLY FRIELING, :
:
Claimant, :
:
vs. :
: File No. 963069
VIKING PUMP - HOUDAILLE, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL, :
:
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.
ISSUE
The issue on appeal is: Whether a full commutation of
survivor benefits is in the best interests of the claimant.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed June 17, 1994 are adopted as final agency action.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed June 17, 1994 are adopted as set forth below.
Segments designated by asterisks (*****) indicate portions of the
language from the proposed agency decision that have been
intentionally deleted and do not form a part of this final agency
decision. Segments designated by brackets ([ ]) indicate
language that is in addition to the language of the proposed
agency decision.
Section 85.31(1)(a) provides:
1. When death results from the injury, the employer
Page 2
shall pay the dependents who were wholly dependent on
the earnings of the employee for support at the time of
the injury, during their lifetime, compensation upon
the basis of eighty percent per week of the employee's
average weekly spendable earnings, commencing from the
date of death as follows:
a. To the surviving spouse for life or until
remarriage, provided that upon remarriage two years'
benefits shall be paid to the surviving spouse in a
lump sum, if there are no children entitled to
benefits.
Section 85.45, in relevant part, provides:
Future payments of compensation may be commuted to a
present worth lump sum payment on the following
conditions:
1. When the period during which compensation is
payable can be definitely determined.
2. When it shall be shown to the satisfaction of
the industrial commissioner that such commutation will
be for the best interest of the person or persons
entitled to the compensation, or that periodical
payments as compared with a lump sum payment will
entail undue expense, hardship, or inconvenience upon
the employer liable therefor.
The standard to be applied in determining whether a
commutation is in the best interest of claimant was originally
established in Diamond v. Parsons Company, 256 Iowa 915 (1964)
and affirmed in Dameron v. Neumann Brothers, Inc., 339 N.W.2d 160
(Iowa 1983). Indeed, the Dameron court reasserted that the
industrial commissioner should not act as an unyielding
conservator of claimant's property in disregard of claimant's
desires and reasonable plans just because success in the future
is not assured. Dameron further indicated that the statutory
guideline, best interest of claimant, should focus on the
worker's personal, family and financial circumstances and the
reasonableness of worker's plans for using the lump sum proceeds.
Under Dameron's analysis of Diamond, the following factors are to
be included in the consideration of whether claimant's desire for
a full commutation is consistent with claimant's best interest:
1. The worker's age, education, mental and physical
condition, and actual life expectancy (as contrasted
with information provided by actuarial tables).
2. The worker's family circumstances, living
Page 3
arrangements, and responsibilities to dependents.
3. The worker's financial condition, including all
sources of income, debts and living expenses.
4. The reasonableness of the worker's plan for
investing the lump sum proceeds and the worker's
ability to manage invested funds or arrange for
management by others....
The Dameron court characterized the Diamond analysis as
involving a benefit-detriment balancing of factors, with the
worker's preference and the benefits to the worker of receiving a
lump sum payment weighed against the potential detriment that
would result if the worker invested unwisely, spent foolishly or
otherwise wasted the funds so that it no longer provided the wage
substitute intended by the workers' compensation law. It noted
that under Diamond, a request for commutation is approved on the
best interest balancing test unless the potential detriment to
the worker outweighs the worker's expressed preference and the
demonstrated benefits of commutation.
Dameron further stated that the Diamond analysis, with its
emphasis on the worker's own personal and financial
circumstances, makes good sense and again highlighted that
commutation turns on what is in the best interest of the worker,
not on what is in the best interest of the employer or the
insurance carrier and that the statute does not permit denying
commutation because of expense, hardship or inconvenience to the
employer.
Claimant has demonstrated that a full commutation is in her
best interest. Claimant has training and job skills in three
different areas. She is a young woman fully capable of greater
employment opportunities than those to which she now avails
herself. While claimant's investment choices as demonstrated by
her current use of certificates of deposit and checking account
as ways of investing her income, may not present the highest
interest bearing or most lucrative forms of investment,
claimant's ability to acquire the assets that she has acquired as
well as her ability to achieve debt-free status in the time
subsequent to her spouse's death demonstrate that claimant is
capable of managing her own assets. Likewise, while the income
that claimant can expect from purchase of farmland were it to
remain in the crop conservation program or were she to
subsequently rent it out may not be large, real estate both as
potentially productive farmland and as a home acreage are
valuable and appropriate assets for claimant. Given claimant's
debt-free status; her ability to earn an income for daily living
expenses from her own education and training; and claimant's
expressed desire to fully commute funds in order to assist her in
Page 4
acquiring this real estate without needing to undertake a
mortgage arrangement; claimant has demonstrated that full
commutation of her remaining benefits is in her best interest.
Defendants have raised the specter of claimant's potential
remarriage to Mr. Junker. We do not doubt that defendants likely
are correct in their surmising that should full commutation be
granted, claimant will remarry. That defendants will incur less
expense were claimant to remarry while receiving weekly benefits
and, therefore, be entitled only to a two year lump sum payment
of benefits is not a proper consideration in determining whether
claimant's request for full commutation is appropriate. The
standard is what is in claimant's best interest given claimant's
personal and financial circumstances. Claimant's financial
circumstances both as measured by her current situation and as
measured by her plans for investment of the fully commuted funds
are certainly consistent with her preference for a full
commutation. Likewise, claimant's personal circumstance, that
she would prefer to have the freedom to remarry as opposed to
needing to weigh remarriage versus cohabitation by financial
incentives and disincentives to remarriage is also in claimant's
best personal interest.
Defendants argue that they are entitled to a credit for
benefits previously paid claimant. We find no merit to
defendants' argument that failure to grant them a credit would
result in claimant receiving certain benefits twice under a full
commutation. Claimant's full commutation is determined under the
life expectancy and remarriage tables. It is then appropriately
discounted to account for the time between time of requested
commutation and the weeks between the date commutation was sought
and the upcoming anniversary of the decedent's death. Hence, the
full commutation relates to prospective benefits only and not to
past benefits. When the above formula is applied in claimant's
case, the appropriate discount factor is ***** [444.59413]. That
number when multiplied by claimant's weekly rate of compensation
of $353.68 results in a fully commuted value of *****
[$157,244.05. See attachments A1 and A2 for the computation used
by the industrial commissioner in arriving at a fully commuted
value of $157,244.05.] Defendants shall pay claimant that amount
with credit for the actual sums paid out in weekly benefits to
claimant from the date she requested commutation, that is,
February 25, 1994, to the date of actual payment of the full
commutation.
WHEREFORE, the decision of the deputy is affirmed and
modified.
ORDER
THEREFORE, it is ordered:
Page 5
That defendants pay claimant fully commuted benefits as set
forth in the above conclusions of law.
That defendants shall pay the costs of this matter including
the transcription of the hearing.
Signed and filed this ____ day of September, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. David J. Mansheim
Attorney at Law
1201 Highway 20
Parkersburg, IA 50665
Mr. Kevin R. Rogers
Attorney at Law
528 W 4th St
P.O. Box 1200
Waterloo, IA 50704
1200
Filed September 30, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
KIMBERLY FRIELING, :
:
Claimant, :
:
vs. :
: File No. 963069
VIKING PUMP - HOUDAILLE, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL, :
:
Insurance Carrier, :
Defendants. :
_________________________________________________________________
1200
Deputy's determination that a full commutation of survivor
benefits was in the best interests of claimant affirmed on appeal
and arithmetical error on present value corrected.
3303.10
Filed June 17, 1994
Helenjean M. Walleser
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
KIMBERLY FRIELING,
Claimant,
vs.
File No. 963069
VIKING PUMP - HOUDAILLE,
E X P E D I T E D
Employer,
H E A R I N G
and
D E C I S I O N
LIBERTY MUTUAL,
(343 IAC 4.44)
Insurance Carrier,
Defendants.
___________________________________________________________
3303.10
Twenty-nine-year-old surviving spouse who was only
dependent of decedent granted full commutation. Claimant
was debt-free, had acquired monetary assets of over $140,000
since her spouse's death and had substantial job skills with
which she could support herself. Claimant planned to
purchase farmland, an acreage for a home site and build a
home with proceeds of full commutation. That claimant would
likely remarry were full commutation granted found not to be
a basis for denying commutation. Standard is best interest
of claimant as determined by claimant's personal and
financial circumstances not that full commutation may result
in greater expense to defendants than would continued
receipt of weekly benefits and two year lump sum payment on
remarriage. That continued receipt of weekly benefits would
produce a financial incentive to cohabitate and not remarry
found a personal circumstance that showed full commutation
was in claimant's best interest.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
KIMBERLY FRIELING, :
: File No. 963069
Claimant, :
:
vs. : E X P E D I T E D
:
VIKING PUMP - HOUDAILLE, : H E A R I N G
:
Employer, : D E C I S I O N
:
and : (343 IAC 4.44)
:
LIBERTY MUTUAL, :
:
Insurance Carrier, :
Defendants. :
:
:
------------------------------------------------------------
STATEMENT OF THE CASE
This is an expedited contested case proceeding
claimant, Kimberly Frieling, has brought against the
employer of her deceased spouse, Dennis Frieling, that is,
Viking Pump - Houdaille, and its insurance carrier, Liberty
Mutual, to receive a full commutation of benefits under rule
343 IAC 4.44(f). This proceeding was held in Waterloo,
Iowa, on May 23, 1994, pursuant to a hearing assignment
order of March 15, 1994.
The record of the proceeding consists of the testimony
of claimant and of claimant's exhibits A through C and
defendants' exhibits 1 and 2.
ISSUE
The sole issue presented is whether claimant is
entitled to a full commutation under section 85.45. In that
the period during which compensation is payable can be
definitely determined by using the life expectancy and
remarriage probability table under rule 343 IAC 6.3(3), the
sole issue is whether commutation of benefits would be in
the best interest of claimant as a person entitled to
compensation pursuant to section 85.31(a).
FINDINGS OF FACT
The undersigned deputy, having heard the testimony and
considered the evidence, finds:
Claimant is the 29-year-old surviving spouse of Dennis
Frieling, who died in an injury arose out of and in the
course of his employment on October 16, 1989. Decedent had
Page 2
no other dependents. Claimant is a high school graduate and
has the equivalent of six years of post high school
training. Claimant has an associate of applied science
degree in horticulture; is certified as a radiologic
technician; and, has an associate of arts degree in
accounting received in May 1993. Claimant was working as a
radiologic technician on a full-time basis at the time of
decedent's death. She then earned $10 per hour. Claimant
left that position after decedent's death and did not again
seek employment until completion of her accounting program.
Claimant now works approximately 20 hours per week for $7
per hour as an administrative assistant with accounting and
bookkeeping duties. Claimant acknowledges that she could
increase her earnings by increasing hours worked and has
voluntarily elected not to do so.
Claimant has received a weekly workers' compensation
benefit of $353.68 since decedent's death. Claimant
currently lives rent-free in an older farm house on property
her boyfriend, Ted Junker, rents. Her only current living
expenses are food, gas, clothing and utilities. Claimant
has no current outstanding indebtedness. She has assets as
follows: Three certificates of deposit of $21,516.53,
$20,000, and $17,572, respectively, totaling $59,088.36;
additionally, claimant had a checking account balance as of
April 30, 1994, of $80,193.72. Claimant has accumulated
these assets from the proceeds of decedent's life insurance
policy in the amount of $50,000 and from savings from weekly
workers' compensation benefits received. As of May 5, 1994,
the insurer had paid claimant $83,973.87 in weekly benefits.
Additionally, claimant paid off approximately $2,000 in
outstanding debt on home appliances subsequent to decedent's
death as well as approximately $4,500 on an outstanding car
loan. Claimant also paid all of her school expenses out of
pocket and purchased a car for $11,000 cash since decedent's
death.
Claimant would receive approximately $164,286.12 were
she to receive a full commutation at this time. Claimant
plans to purchase 80 acres of farmland at $850 per acre,
totaling $68,000 and to purchase an acreage for $30,000 on
which to construct a house with an approximate construction
cost of $150,000. Claimant would also need to use
approximately $100,000 of her accumulated personal funds to
achieve these goals. Claimant reported she would receive
personal satisfaction from having a newer home and an
acreage which she could pursue her horticultural interests.
She indicated that were she to make a down payment with her
current funds and secure a loan for the balance, her
mortgage interest would be approximately 8 to 8.5 percent.
Of the 80 acres, 40 acres are tillable. The tillable
acreage is in the Federal Crop Conservation Reserve Program
through 1998. The federal government pays the current owner
$100 per acre for the nonuse of the land for crop
production. Claimant expressed her belief that she could
receive approximately $120 per acre or $4,800 per year were
she to rent the tillable acres for crop production.
Page 3
Claimant also felt that she could rent the remaining land as
pasture. She was not aware of the going rate for pasture
rental, however. Likewise, claimant was not aware of the
cost for maintenance of fences or cleaning of waterways and
did not know the appreciation of area farmland in the last
decade.
Claimant acknowledged that the 80 acre plot she wishes
to purchase is across from farm land that Ted Junker rents
and farms. She acknowledged that she might rent her
property to Mr. Junker and also stated she might rent it to
another individual depending on the best price she would
receive.
Mr. Junker gave claimant a gold ring with five small
diamonds as a graduating gift when she received her
associate of arts in accounting degree. The undersigned
observed that ring at the time of hearing. The ring could
not be characterized as a traditional "engagement diamond."
The undersigned notes, however, that as between men and
women, rings containing diamonds generally are neither given
or received without some significance. Claimant
acknowledged that Mr. Junker has expressed a desire to marry
claimant. Claimant denied that she desired to marry Mr.
Junker. Claimant reported that she wishes to keep her
freedom and that she does not wish to lose her workers'
compensation benefits. She further agreed that she might
cohabit with Mr. Junker in lieu of marriage if the marriage
would result in the loss of her weekly benefits were the
full commutation not granted. Should claimant marry without
having received a full commutation of benefits under the
life expectancy and remarriage tables, claimant's two year
lump sum payment would equal $36,782.72 (104 weeks x
$353.68).
Claimant's attorney representing her in this petition
for full commutation is being paid $75 per hour and had
devoted an estimated 12 to 15 hours to claimant's case as of
time of hearing.
CONCLUSIONS OF LAW
Section 85.31(1)(a) provides:
1. When death results from the injury, the
employer shall pay the dependents who were wholly
dependent on the earnings of the employee for
support at the time of the injury, during their
lifetime, compensation upon the basis of eighty
percent per week of the employee's average weekly
spendable earnings, commencing from the date of
death as follows:
a. To the surviving spouse for life or until
remarriage, provided that upon remarriage two
years' benefits shall be paid to the surviving
spouse in a lump sum, if there are no children
entitled to benefits.
Section 85.45, in relevant part, provides:
Page 4
Future payments of compensation may be commuted
to a present worth lump sum payment on the
following conditions:
1. When the period during which compensation
is payable can be definitely determined.
2. When it shall be shown to the satisfaction
of the industrial commissioner that such
commutation will be for the best interest of the
person or persons entitled to the compensation, or
that periodical payments as compared with a lump
sum payment will entail undue expense, hardship,
or inconvenience upon the employer liable
therefor.
The standard to be applied in determining whether a
commutation is in the best interest of claimant was
originally established in Diamond v. Parsons Company, 256
Iowa 915 (1964) and affirmed in Dameron v. Neumann Brothers,
Inc., 339 N.W.2d 160 (Iowa 1983). Indeed, the Dameron court
reasserted that the industrial commissioner should not act
as an unyielding conservator of claimant's property in
disregard of claimant's desires and reasonable plans just
because success in the future is not assured. Dameron
further indicated that the statutory guideline, best
interest of claimant, should focus on the worker's personal,
family and financial circumstances and the reasonableness of
worker's plans for using the lump sum proceeds. Under
Dameron's analysis of Diamond, the following factors are to
be included in the consideration of whether claimant's
desire for a full commutation is consistent with claimant's
best interest:
1. The worker's age, education, mental and
physical condition, and actual life expectancy (as
contrasted with information provided by actuarial
tables).
2. The worker's family circumstances, living
arrangements, and responsibilities to dependents.
3. The worker's financial condition, including
all sources of income, debts and living expenses.
4. The reasonableness of the worker's plan for
investing the lump sum proceeds and the worker's
ability to manage invested funds or arrange for
management by others....
The Dameron court characterized the Diamond analysis as
involving a benefit-detriment balancing of factors, with the
worker's preference and the benefits to the worker of
receiving a lump sum payment weighed against the potential
detriment that would result if the worker invested unwisely,
spent foolishly or otherwise wasted the funds so that it no
longer provided the wage substitute intended by the workers'
compensation law. It noted that under Diamond, a request
for commutation is approved on the best interest balancing
Page 5
test unless the potential detriment to the worker outweighs
the worker's expressed preference and the demonstrated
benefits of commutation.
Dameron further stated that the Diamond analysis, with
its emphasis on the worker's own personal and financial
circumstances, makes good sense and again highlighted that
commutation turns on what is in the best interest of the
worker, not on what is in the best interest of the employer
or the insurance carrier and that the statute does not
permit denying commutation because of expense, hardship or
inconvenience to the employer.
Claimant has demonstrated that a full commutation is in
her best interest. Claimant has training and job skills in
three different areas. She is a young woman fully capable
of greater employment opportunities than those to which she
now avails herself. While claimant's investment choices as
demonstrated by her current use of certificates of deposit
and checking account as ways of investing her income, may
not present the highest interest bearing or most lucrative
forms of investment, claimant's ability to acquire the
assets that she has acquired as well as her ability to
achieve debt-free status in the time subsequent to her
spouse's death demonstrate that claimant is capable of
managing her own assets. Likewise, while the income that
claimant can expect from purchase of farmland were it to
remain in the crop conservation program or were she to
subsequently rent it out may not be large, real estate both
as potentially productive farmland and as a home acreage are
valuable and appropriate assets for claimant. Given
claimant's debt-free status; her ability to earn an income
for daily living expenses from her own education and
training; and claimant's expressed desire to fully commute
funds in order to assist her in acquiring this real estate
without needing to undertake a mortgage arrangement;
claimant has demonstrated that full commutation of her
remaining benefits is in her best interest.
Defendants have raised the specter of claimant's
potential remarriage to Mr. Junker. We do not doubt that
defendants likely are correct in their surmising that should
full commutation be granted, claimant will remarry. That
defendants will incur less expense were claimant to remarry
while receiving weekly benefits and, therefore, be entitled
only to a two year lump sum payment of benefits is not a
proper consideration in determining whether claimant's
request for full commutation is appropriate. The standard
is what is in claimant's best interest given claimant's
personal and financial circumstances. Claimant's financial
circumstances both as measured by her current situation and
as measured by her plans for investment of the fully
commuted funds are certainly consistent with her preference
for a full commutation. Likewise, claimant's personal
circumstance, that she would prefer to have the freedom to
remarry as opposed to needing to weigh remarriage versus
cohabitation by financial incentives and disincentives to
remarriage is also in claimant's best personal interest.
Defendants argue that they are entitled to a credit for
Page 6
benefits previously paid claimant. We find no merit to
defendants' argument that failure to grant them a credit
would result in claimant receiving certain benefits twice
under a full commutation. Claimant's full commutation is
determined under the life expectancy and remarriage tables.
It is then appropriately discounted to account for the time
between time of requested commutation and the weeks between
the date commutation was sought and the upcoming anniversary
of the decedent's death. Hence, the full commutation
relates to prospective benefits only and not to past
benefits. When the above formula is applied in claimant's
case, the appropriate discount factor is 464.5050. That
number when multiplied by claimant's weekly rate of
compensation of $353.68 results in a fully commuted value of
$164,286.12. Defendants shall pay claimant that amount with
credit for the actual sums paid out in weekly benefits to
claimant from the date she requested commutation, that is,
February 25, 1994, to the date of actual payment of the full
commutation.
ORDER
THEREFORE, it is ordered:
Defendants pay claimant fully commuted benefits as set
forth in the above conclusions of law.
Defendants pay costs of this proceeding.
Signed and filed this ____ day of June, 1994.
________________________________
HELENJEAN M. WALLESER
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr David J Mansheim
Attorney at Law
1201 Highway 20
Parkersburg IA 50665
Mr Kevin R Rogers
Attorney at Law
528 W 4th St
P O Box 1200
Waterloo IA 50704
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
JUDITH M. WILSON, :
:
Claimant, :
:
vs. :
: File No. 963361
MEREDITH/BURDA, INC., :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE, :
:
Insurance Carrier, :
Defendants. :
_________________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
February 28, 1994 is affirmed and is adopted as the final agency
action in this case with the following additional analysis:
Dr. Turner did initially, upon first examining claimant,
causally connect claimant's depression with her work injury.
This opinion was based on the history claimant gave the doctor,
which did not fully advise him of her prior history with similar
psychological problems. As Dr. Turner's course of treatment went
on, his views on the cause of claimant's mental state appear to
have changed. By the time of his deposition, Dr. Turner was not
willing to attribute claimant's mental condition to her work
injury.
It is acknowledged that claimant does not have to show that
her work injury was the only cause of her current condition; it
is sufficient if claimant has shown that her work injury is a
substantial cause. However, taken as a whole, Dr. Turner's
testimony is so equivocal as to constitute, at best, an opinion
that claimant's condition may possibly be caused by her work
injury. This does not meet claimant's burden of proof on this
issue.
Defendants shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Page 2
Signed and filed this ____ day of September, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert W. Pratt
Attorney at Law
6959 University Ave.
Des Moines, Iowa 50311-1540
Ms. Janice Herfkens
Mr. Charles E. Cutler
Attorneys at Law
729 Insurance Exchange Bldg
Des Moines, Iowa 50309
5-1108
Filed September 26, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
JUDITH M. WILSON, :
:
Claimant, :
:
vs. :
: File No. 963361
MEREDITH/BURDA, INC., :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE, :
:
Insurance Carrier, :
Defendants. :
_________________________________________________________________
5-1108
Work injury not shown to cause fibromyalgia from "head to
toe" or mental impairment.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JUDITH M. WILSON, :
:
Claimant, :
:
vs. :
: File No. 963361
MEREDITH/BURDA, INC., :
A R B I T R A T I O N
Employer, :
D E C I S I O N
and :
:
CNA INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a contested case proceeding upon the petition
in arbitration of claimant Judith M. Wilson against her
former employer, Meredith/Burda, Inc., and its insurance
carrier, CNA Insurance. Ms. Wilson sustained a work related
injury in a fall on October 30, 1989, and now seeks benefits
under the Iowa Workers' Compensation Act. The parties
dispute the extent of her disability, especially whether the
incident caused mental injury. A hearing was accordingly
held in Des Moines, Iowa on August 17, 1993. Joint exhibits
1-146 and defendants' exhibits 1-4 were received into
evidence along with the testimony of claimant, Rodney Young,
Jeff Johnson, Edna Schultz, Richard Schuster, Nancy Prall
and Diane McGuire.
ISSUES
The parties have stipulated to the following:
1. Claimant sustained injury arising out of
and in the course of her employment on
October 30, 1989;
2. The injury caused both temporary and
permanent disability;
3. If mental injury is not established,
entitlement to healing period benefits
should be from October 9, 1990 through
December 16, 1991;
4. Permanent disability should be
compensated industrially;
5. At the time of injury, claimant was
married and entitled to two exemptions;
Page 2
6. Psychiatric and psychological treatment
and the cost thereof is reasonable and
necessary; and,
7. Defendants paid 137.714 weeks of
compensation at the rate of $237.17 prior to
hearing.
Issues presented for resolution include:
1. Whether the work injury caused mental
disability;
2. If so, the extent of healing period
entitlement;
3. The extent of permanent disability;
4. The rate of compensation; and,
5. Entitlement to medical benefits.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
Judith Wilson, 50 years of age at hearing, left school
before completing the tenth grade and has no further
education. She did not enter the competitive labor market
until the 1960's, following which she was employed as a
factory worker, laborer, and nurses' aide. From July 1973
until October 1990, claimant was employed as a bookbinder II
for Meredith/Burda, a large publishing company. Claimant's
duties include operation of various bookbinding machines and
hand repair of books. According to Jeff Johnson, a
vocational rehabilitation specialist, all of claimant's
previous jobs were basically unskilled, requiring 30 days or
less of training.
Claimant was paid an hourly wage. During the thirteen
weeks prior to October 30, 1989, she worked (not counting
overtime premiums) 226.20 hours at an hourly wage of $10.75,
36.0 hours at $10.38 and 212.50 hours at $9.66. Total
earnings for those thirteen weeks, excluding overtime
premiums, were $4,858.08, or a weekly average of $373.69.
The hours claimant worked varied widely on a weekly basis,
from 22.2 up to 48.0. Claimant even worked 52 hours during
the 14th week prior to the work injury. The record does not
disclose that any of the 13 weeks prior to injury were
unrepresentative. Claimant worked fewer than 30 hours
during three of the 13 weeks and in excess of 40 hours
during four weeks. Claimant testified to being absent for
various reasons (illness, funerals, etc.) during weeks in
which fewer than 36 hours were worked. She customarily
worked three 12-hour shifts per week, with some overtime.
The work injury occurred when claimant suffered a slip
and fall while loading a machine. She claims that the fall
injured her right knee, hands, arms, shoulders and neck.
Page 3
Claimant underwent conservative treatment, but
complained of progressively worsening pain over the next
year. She was eventually referred to an orthopedic surgeon,
Scott Neff, M.D., who undertook a surgical procedure of the
left shoulder on October 9, 1990. Preoperative diagnosis
was of impingement syndrome of the left shoulder with
chronic subacromial bursitis and degenerative changes within
the acromioclavicular joint. The surgery was described as:
(1) subacromial decompression and bursectomy; (2) excision
and release of the coracoacromial ligament; (3) Mumford
excision of clavicle. Postoperative diagnosis was of
subacromial bursitis, degenerative changes in the
acromioclavicular joint and anterior acromial spurring.
Unfortunately, the procedure did not bring substantial
relief. By February 18, 1991, Dr. Neff reported restricted
range of motion in the left shoulder and tenderness over the
medial border of the left scapula, the supraspinatus area
and left neck muscles. The doctor concluded that claimant
had a soft tissue syndrome, which might be diagnosed as
fibromyalgia or myofascial syndrome. Accordingly, he
referred claimant to a rheumatolgist, Lawrence J.
Rettenmaier, M.D.
On August 26, 1991, Dr. Neff wrote that claimant
suffered fibromyalgia and fibromyositis, but of non-work
origin. By this time, Ms. Wilson was already complaining of
diffuse symptoms in the upper back, neck, legs "and so
forth." Dr. Neff recommended a work hardening program,
since claimant was significantly deconditioned from her long
absence from work, and recommended a restriction against
"heavy repetitious lifting on a eight-hour basis the first
day." By November 20, 1991, Dr. Neff concluded that
claimant could not return to her former job due to job
requirements not within her restrictions, presumably the
restriction against heavy repetitious lifting. He assigned
50 percent of claimant's left shoulder problems to the
impingement syndrome which he had decompressed surgically
(and was work related) and 50 percent due to fibromyalgia
syndrome ("not specifically work related"). Claimant's
right shoulder problems were primarily due to
fibromyalgia.
On December 16, 1991, Dr. Neff rated impairment at 11
percent of the upper extremity pursuant to American Medical
Association Guides. He assigned six percent of that
impairment to fibromyalgia or myofascial syndrome and five
percent to impingement syndrome related to work place
activities.
Dr. Rettenmaier saw claimant on a number of occasions
and developed an impression of fibryomalgia/chronic pain
syndrome. His report of January 28, 1991 shows claimant
reporting that her work-related fall was only approximately
1.5-2.0 feet. At first, claimant denied diffuse
musculoskeletal complaints. However, by December 16, 1992,
when claimant followed up with Dr. Rettenmaier, complaints
were so diffuse that claimant described them as "as being
from head to toe." Dr. Rettenmaier's letter of November 23,
1992 contained the following passage:
Page 4
(1) Fibromyalgia/chronic pain syndrome. As you
are aware, the terminologies for these problems
are often confusing. She certainly meets criteria
for fibryomalgia based on her diffuse
musculoskeletal complaints and tender points. As
you are aware, the terminologies for the problems
are quite confusing. I believe chronic pain
syndrome may also be an appropriate term for her
situation. Although not described in the
scientific literature, it is often of note that
patients may start out with one problem such as
she had in her upper extremities, and seemingly
develop the "all overs." She seems to have
developed this since her last evaluation here.
(Exhibit 37, Page 74)
Dr. Rettenmaier also referred claimant to C. David
Smith, M.D., for evaluation of possible thoracic outlet
syndrome. Dr. Smith concluded that the possibility of
thoracic outlet syndrome could not be excluded but remained
unconvinced that this was claimant's problem. Other
diagnostic culprits could include carpal tunnel syndrome,
reflex sympathetic dystrophy, osteoarthritis of the neck and
myofascial pain syndrome.
Claimant was also seen for evaluation by Martin S.
Rosenfeld, D.O. Dr. Rosenfeld's report of August 17, 1992
agreed that claimant had two diagnoses: impingement syndrome
to the left shoulder and fibryomalgia and chronic pain
problems. Dr. Rosenfeld concluded that the fibryomalgia and
chronic pain were disabling "and with a negative history
prior to the injury" were probably a result of the work
injury, "but I feel these would be best dealt with by the
psychiatrist and psychologist and rheumatolgist on this case
rather than an orthopaedist." Dr. Rosenfeld also assessed
impairment at 16 percent of the body as a whole, based five
percent for lack of strength and 11 percent for loss of
range of motion. However, Dr. Rosenfeld's opinion on
causation is specifically based on an inaccurate history.
He reports that claimant denied any previous history of
shoulder problems or musculo-skeletal complaints prior to
the injury of October 30, 1989, and based his causation
opinion on that "negative history." Chart notes of East Des
Moines Family Care Center, claimant's primary care
physicians, reflect a number of musculo-skeletal complaints
in 1989, but prior to the injury. These include left
shoulder complaints on April 20 and September 21 (neck pain
and left shoulder pain for about one week; "claimant does
not recall any injury") with low back, neck pain and right
knee pain.
Claimant was also seen by a physiatrist, Donna J.
Bahls, M.D. While Dr. Bahls does not specifically address
the causation issue with respect to fibryomalgia, the
following pertinent observation appears in her report of
March 11, 1992:
She also stated that her whole body hurts and she
Page 5
was having this discomfort prior to the accident
and stated they told her she had fibryomalgia.
Dr. Neff's opinion that the work injury did not cause
claimant's fibryomalgic condition is accepted as more
persuasive than the opinion of Dr. Rosenfeld. Dr. Neff is a
treating surgeon, rather than a one-time evaluator. Dr.
Rosenfeld's opinion is specifically based in part on an
incorrect history. Claimant had symptoms predating the work
injury. Dr. Rettenmaier, the rheumatologist, points out
that a fibryomalgic condition (which he has described as the
localized form of chronic pain syndrome) can appear first in
one joint, then in others. This appears to be the case with
respect to Judith Wilson. It is hard to see how a fall of
only two feet can cause progressive pain throughout the
body, from "head to toe."
Claimant also asserts that right knee pain is
attributable to the work injury. She was seen for this
condition by Mark B. Kirkland, D.O., who reported in January
1993 that the knee pain was secondary to a prior right knee
injury and surgery in 1982, rather than the 1989 work
injury. It is also noted that claimant saw her family
physician for right knee pain in 1989, but prior to the
injury.
Claimant also has substantial psychological problems.
These problems, which currently disable her totally from
employment, include depression, anxiety attacks, and a
seizure disorder of uncertain etiology and diagnosis. Ms.
Wilson has a pre-injury history of anxiety disorder (panic
attacks and the like) and of seizure-like disorders.
Claimant's treating psychiatrist (not psychologist, as
is asserted in defendants' Contentions filed at hearing) is
Rick D. Turner, M.D. Dr. Turner testified by deposition on
August 12, 1993.
Dr. Turner agrees that the anxiety disorder is
independent of any work injury. As to whether the work
injury caused or aggravated claimant's depressive order, Dr.
Turner has offered a wealth of diverse medical opinion all
by himself.
Dr. Turner originally concluded that claimant's
difficulties related to "her original injury as well as the
additional diagnosis of Fibromyalgia." However, he was much
less certain by the time of his deposition.
Dr. Turner's original diagnosis was of major depressive
episode, history of generalized anxiety disorder, history of
shoulder injury, diagnosis of fibromyalgia, possible seizure
disorder and migraine headaches. Incidentally, claimant's
history of migraine headaches also preexisted the work
injury. As of July 21, 1993, Dr. Turner added a diagnosis
of "psychological factors affecting physical condition";
that is, where significant psychological events worsen a
physical condition, in this case claimant's fibromyalgia and
shoulder injury. The single most significant psychological
factor was illness in claimant's family, especially her
Page 6
husband's serious heart ailment. A secondary factor was the
actuality of disability and the litigation process. Both
claimant's husband's heart attack and personal problems she
was having with her son probably had effect on her
psychiatric condition.
Dr. Turner offered testimony both supporting and
failing to support a causal link between the work
injury/fibromyalgia and claimant's depressive condition.
Examples include:
A. Essentially. It is possible the same could
be said of her depression. Depression may have a
biological basis that might ultimately be genetic
but was latent until the right combination of
stresses ensued to precipitate or cause that
depression. The stresses of her disability, of
the pain from her various maladies, and quite
possibly the stresses of other life events,
specifically her husband's illness, problems with
her son, may have all contributed to the
precipitation of this underlying biologic
phenomenon.
Were she to have avoid the stresses of her
injury, in other words, were she never to have the
injury, she still may have experienced a
depression. I cannot say with a reasonable degree
of medical certainty that she would have not
experienced it. In other words, it is difficult
for me to say with certainty that the stresses of
the injury and the pain result are the sole cause
of her depression. I would say with a reasonable
degree of medical certainty they are at least a
major factor.
And,
Q. * * * If I understood your direct testimony
correctly, please correct me if I'm wrong, you're
telling me that you think the work incident of Ms.
Wilson that she sustained on October 30, 1989, was
a substantial factor in bringing about her
depression, but was not the sole cause; am I
correct?
A. I'm saying that in my opinion it is a
substantial factor, and it is difficult for me to
say if it was the sole cause.
Q. Right. Exactly. But there is no question,
at least within a reasonable degree of certainty,
that it was a substantial factor in bringing about
her diagnosis of depression?
A. In precipitating her depression, yes.
And,
Q. That's fine. I think, you told us on
Page 7
direct, and I was writing as best I could, that it
was difficult to say with certainty that the
injury was the sole cause, but there is no
question that the injury was a major factor; is
that correct?
A. Yes.
(Turner Deposition, Pages 13, 17, 22, 23)
However, Dr. Turner simultaneously offered contrary
opinion:
Q. Okay. Given that, can you tell me, if
that's your definition and my definition of
substantial factor, did the 10-30-89 incident
cause or aggravate her condition to the extent to
bring about a diagnosis under affective disorders
of 12.04? (Emphasis Supplied)
A. My dilemma is that I literally do not know.
Q. Okay.
And,
Q. You understand when I ask this, Dr. Turner,
I'm not asking about your knowledge. I'm asking
your opinion. If it was your knowledge, we
wouldn't have to ask your opinion. In your
opinion, did the 10-30-89 incident cause or
aggravate her condition so as to cause a
lightening up in her symptoms, make her more
symptomatic in regard to the affective disorder
that you told us she has? (Emphasis Supplied)
A. I do not have a well-formed opinion on
that. I'm sorry that I can't answer more
affirmatively.
And,
Q. Do you think that your care and treatment
that you rendered her is causally related to her
work injury?
MS. HERFKENS: Objection, asked and answered.
THE WITNESS: I always wait for the judge.
BY MR. PRATT:
Q. We don't have one.
A. Yes. I waited about five minutes kind of
waiting for a response. I'll have to go back to
my testimony earlier that I am evenly split over
whether it is caused.
(Turner Deposition, Pages 21, 22, 39, 40)
Page 8
As discussed later in this decision, claimant bears the
burden of proof in establishing the requisite causal nexus
between the work injury and her mental impairment. Anxiety
attacks and ill defined seziure disorders predated the work
injury. Dr. Turner agrees that the anxiety attacks are
completely independent of the work injury. The seizure
activity is actually a factor which may exacerbate
claimant's depression.
As seen, Dr. Turner is ambivalent as to whether a
causal nexus exists between the work injury and claimant's
depressive condition. Medical evidence must establish such
a causal nexus is probable rather than merely possible.
And, equally significant, Dr. Turner specifically treats
claimant's fibryomalgic pain as a causative factor, without
distinguishing that condition from the impingement syndrome
surgically treated by Dr. Neff. Dr. Turner concedes that he
does not know whether the fibryomalgia is work related, and
this decision finds otherwise. As a result, claimant has
not met her burden of proof in establishing a causal link
between the work injury and her current depressive
condition.
CONCLUSIONS OF LAW
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
The evidence establishes a causal link between the
original work injury and the impingement syndrome surgery
performed by Dr. Neff. The evidence, as has been seen,
fails to establish a causal link between claimant's right
knee problems or her extensive fibryomalgia, including that
of the left shoulder. And, most significantly, the evidence
does not prove a causal link between the work injury and
claimant's current mental impairment.
The parties have agreed that healing period benefits
Page 9
should be paid from October 9, 1990 through December 16,
1991 (62.0 weeks) if mental causation is not established.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
Page 10
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
The treating surgeon, Dr. Neff, has restricted claimant
from repetitive heavy lifting. As a result of this
restriction, claimant is foreclosed from her former
employment at Meredith/Burda. Claimant is much more
disabled than this, of course, but that additional
disability has not been causally linked to the work injury.
Industrial disability, must, accordingly, be calculated as
though that additional disability did not exist. Claimant
is now 50 years of age and with a limited educational
background and work history. However, the restriction
imposed by Dr. Neff, although disqualifying her from her
last job, would not necessarily foreclose other employment
for which claimant might be suited, including lighter
factory work or, more problematically, employment as a
nurses' aide. Extensive retraining seems unlikely, even if
claimant did not suffer from fibryomalgia and emotional
problems.
Page 11
Given then these factors in specific and the record
otherwise in general, it is held that claimant has sustained
a permanent partial disability equivalent to 20 percent of
the body as a whole, or 100 weeks.
The only unpaid medical benefits in dispute relate to
claimant's mental condition. As seen, these expenses are
not shown to be causally related to the work injury.
As discussed above, claimant's gross average weekly
wage during the 13 weeks prior to injury was $373.69. The
parties stipulated to a marital status of married and two
exemptions. The rate tables published by the commissioner
in effect at the time of injury show that an individual so
situated is entited to a compensation rate of $237.74.
ORDER
THEREFORE, IT IS ORDERED:
Defendants shall pay unto claimant sixty (60) weeks of
healing period benefits at the rate of two hundred
thirty-seven and 74/100 dollars ($237.74) commencing October
9, 1990.
Defendants shall pay one hundred (100) weeks of
permanent partial disability benefits at the rate of two
hundred thirty-seven and 74/100 dollars ($237.74) commencing
December 17, 1991.
Defendants shall have credit for all benefits
voluntarily paid prior to hearing.
Accrued weekly benefits shall be paid with statutory
interest calculated from the date each payment was due.
Costs of this action are assessed to defendants.
Signed and filed this ____ day of February, 1994.
________________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Robert W Pratt
Attorney at Law
6959 University Avenue
Des Moines Iowa 50311-1540
Ms Janice Herfkens
Mr Charles E Cutler
Attorneys at Law
729 Insurance Exchange Building
Des Moines Iowa 50309
5-1108
Filed February 28, 1994
DAVID R. RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JUDITH M. WILSON, :
:
Claimant, :
:
vs. :
: File No. 963361
MEREDITH/BURDA, INC., :
A R B I T R A T I O N
Employer, :
D E C I S I O N
and :
:
CNA INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1108
Work injury not shown to cause fibromyalgia from "head to
toe" or mental impairment.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
MICHAEL LYKINS, :
:
Claimant, :
:
vs. : File Nos. 1003228/996358
: 963375/1043918
3-M COMPANY, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
OLD REPUBLIC INSURANCE CO., :
:
Insurance Carrier, :
Defendants. :
_________________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
February 23, 1994 is affirmed and is adopted as the final agency
action in this case with the following additional analysis:
Claimant's industrial disability resulting from his
work-related injuries is 20 percent.
That claimant and defendants shall share equally the costs
of the appeal including transcription of the hearing.
Signed and filed this ____ day of October, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Page 2
Copies To:
Mr. Jerry L. Schnurr, III
Attorney at Law
P.O. Box 952
Fort Dodge, Iowa 50501
Mr. Roger L. Ferris
Attorney at Law
1900 Hub Tower
699 Walnut
Des Moines, Iowa 50309
5-1803
Filed October 7, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
MICHAEL LYKINS, :
:
Claimant, :
:
vs. : File Nos. 1003228/996358
: 963375/1043918
3-M COMPANY, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
OLD REPUBLIC INSURANCE CO., :
:
Insurance Carrier, :
Defendants. :
_________________________________________________________________
5-1803
Claimant awarded 20 percent industrial disability.
He had sustained several injuries at work and underwent two
back surgeries.
Work restrictions included limited lifting abilities and
bending activity. His impairment was between 12 and 16 percent.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
MICHAEL LYKINS, :
: File Nos. 963375,
996358
Claimant, : 1003228, 1043918
:
vs. :
: A R B I T R A T I O N
3-M COMPANY, :
: D E C I S I O N
Employer, :
:
and :
:
OLD REPUBLIC INS. CO., :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by
claimant, Michael Lykins, against his employer, 3-M Company,
and its insurance carrier, Old Republic, as defendants.
Claimant filed three petitions in arbitration, and the
parties agreed to also have resolved a non-litigated case,
agency file number 1043918. The first report in this file
indicates claimant sustained an injury to his back on
November 30, 1992. Other injury dates pled include
September 10, 1990 (agency file number 963375); July 16,
1991 (agency file number 996358); and, October 3, 1991
(agency file number 1003228).
The matter came on for hearing on January 31, 1994, at
Fort Dodge, Iowa. The record in the case consists of
testimony from the claimant, Paula Lykins (claimant's wife),
Peggy Ann Pollard (safety/health supervisor for 3-M), and
Mary Beeson (production supervisor); and, joint exhibits
1-15.
ISSUES
The parties agreed that the only issue for resolution
is the extent of claimant's industrial disability.
FINDINGS OF FACT
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
Claimant, Michael Lykins, was born on July 20, 1967.
At the time of the hearing, he was 26 years of age. After he
graduated from Roland Story high school in 1986, claimant
Page 2
began working for 3-M as a temporary worker. He was
assigned to the packing department, where he packed
sandpaper. His job duties required standing of more than 2
hours at a time, lifting, twisting and bending.
Claimant attended Westmar College in Lemars for two and
one-half years, working towards a degree in elementary
education. In January 1990, he quit school because he
obtained status as a permanent employee with 3-M. Claimant
has pursued additional studies at Iowa State University,
totaling approximately 12 hours.
As a permanent employee, claimant worked as an abrasive
packer until the summer of 1990. His job was classified as
a grade 2 (out of 11 grades), one of the lowest job grades
on the floor. The higher the job grade, the higher the
hourly wages.
Claimant advanced to a position as a roll lock
operator, a grade 6 job in the plant. He operated a machine
which cuts and glues discs used for drills. His position
required setting up the machine, cleaning parts to insure
proper operation, lifting 10 to 15 pounds, bending and
twisting.
In September of 1990, claimant was working at his
machine when some of the discs were sticking. As he used
his hand to lift up the discs, it became caught in the
machine, and pulled his hand towards the heaters of the
machine. He hit the emergency stop button and yelled for
help. By the time help arrived, claimant had extracted his
hand, which was burned. Eventually, he underwent hand
surgery, performed by Mark Reece, M.D., at Iowa Methodist
Hospital. In October of 1990, he was released to return to
work on a light duty basis due to the condition of his hand.
(Joint exhibit 1, pp. 19-26; 160) At this time, claimant
also complained of low back, left leg and hip pain. The
notes state that "he feels the pain is as bad now as when it
was at its worst this spring. However, it is not radiating
down the leg as far and tends to be more in the hip and
upper thigh region." (Jt. Ex. 1, p. 27) A CT scan was
recommended, the results of which showed intervertebral disc
herniations at the L3-4, L4-5 and L5-S1 levels, slight
posterior displacement of the right S1 nerve root, and
spondylolysis at the L5 level. (Jt. Ex. 1, p. 28)
From October through November 1990, additional visits
to the McFarland Clinic resulted in epidural steroid
injections. He was given work restrictions of no lifting
greater than 15 pounds, no bending or crawling. During this
time, claimant also received follow-up treatment for his
hand injuries from Dr. Reece. (Jt. Ex. 1, pp. 33-41)
In December 1990, claimant underwent an MRI, which
confirmed the CT scan test results. On December 19, 1990,
Claimant underwent a lumbar laminotomy and diskectomy,
performed by Allen Lang, M.D. (Jt. Ex. 1, pp. 44-45; 47-49)
Dr. Lang stated that claimant's "original symptoms were due
to a basketball injury in May of 1990 and then were
exacerbated with his work injury of September of 1990."
Page 3
(Jt. Ex. 1, p. 50)
On January 25, 1991, claimant was released to return to
light duty work for three weeks, and once on regular duty,
was saddled with a permanent restriction of no lifting of
more than 50 pounds occasionally. (Jt. Ex. 1, pp. 51-52)
Subsequently, claimant underwent additional therapy on his
left hand, and was required to use a pressure glove to
relieve pain. Eventually, claimant was given a total
impairment of the left upper extremity of 5 percent. (Jt.
Ex. 1, pp. 53-66; 96)
In July 1991, Dr. Lang decided that based on the single
level laminectomy/diskectomy with no residuals, claimant had
sustained a 7 percent permanent physical impairment of the
body as a whole. (Jt. Ex. 1, p. 67)
On July 16, 1991, claimant was loading boxes at work,
and felt pain in his back. Dr. Lange diagnosed a sprain,
took claimant off of work, prescribed pain medications, and
instructed him to begin flexibility exercises and a walking
program. Another epidural injection was given in August
1991, and in September of 1991, claimant underwent an MRI to
rule out disc and impingement pathologies of the spinal
nerves. (Jt. Ex. 1, pp. 68-83)
The results of the MRI showed a large disk herniation
at the L4 level, much larger than it was in December 1990.
Other notations include a small herniation at the L5 level,
and a small to moderately sized disk herniation at the L4-5
level, although it was small than in December, 1990. (Jt.
Ex. 1, p. 86)
On October 3, 1991, claimant injured his back again
while packing sandpaper. Several weeks later, he underwent
surgery to repair an extruded disc at the L3-4 level. (Jt.
Ex. 1, pp. 97-114) Follow-up visits chronicle claimant's
recovery. (Jt. Ex. 115-120) Claimant was released to
return to work, but the company was unable to accommodate
his 20 pound lifting restriction. (Jt. Ex. 1, p. 121)
In August 1992, 3-M requested information from Dr. Lang
regarding claimant's ability to return to work as a packer.
A functional capacities evaluation form was supplied to Dr.
Lang, who believed claimant could not crawl or climb, but
could occasionally bend, squat, crouch, kneel and balance
and frequently reach above shoulder level, push and pull.
Weight to be carried was restricted to 10 pounds
continuously, up to 24 pounds frequently, up to 50 pounds
occasionally, and never more than 50 pounds. While the
undersigned finds the results very difficult to read,
apparently claimant was able to lift up to 10 pounds
continuously, up to 24 pounds frequently, up to 50 pounds
occasionally and never more than 50 pounds. Claimant could
use foot controls, was able to grasp repetitively with
either hand, and could frequently flex and rotate. (Jt.
Ex. 1, p. 139)
According to the evidence, claimant returned to work in
September of 1992 and worked up to 56 hours per week. In
Page 4
November, he noticed increasing symptoms of pain in the
lumbar region and in the right leg. He was removed from
full-time work.
On December 15, 1992, Dr. Lang indicated in a letter
that claimant had not yet reached maximum medical
improvement. He did, however, feel that since claimant had
two disc abnormalities with accompanying operations, that he
had sustained at least a 12 percent permanent impairment of
the whole person. Dr. Lang calculated a 16 percent
impairment when his deposition was taken. (Jt. Ex. 15) If
there were no resolution of his neurologic deficit,
additional permanency would be attributed to weakness, along
with permanent restrictions on lifting, pulling and bending
activities. Dr. Lang stated that all of the back problems
appeared to be work aggravated. (Jt. Ex. 1, p. 142)
Follow-up visits with Dr. Lang, as well as documents
from physical therapy sessions and a work hardening program,
can be found at joint exhibit 1, pages 144-156. A final
functional capacities evaluation, dated June 2, 1993,
indicates claimant is able to squat, crawl, climb heights,
reach above shoulder level, crouch, kneel, balance and push
and pull up to 85 pounds on a continuous basis, but cannot
bend or stoop. Furthermore, claimant can continuously carry
or lift up to 10 pounds, frequently lift or carry up to 34
pounds; occasionally lift or carry up to 50 pounds, but
cannot lift or carry more than 50 pounds. He is able to
repetitively grasp and perform fine manipulations with his
hands, and can use his head and neck in static positions,
frequent flexing and rotating. (Jt. Ex. 1, p. 157)
Dr. Lang confirmed these restrictions, but stated that
he would have imposed the same restrictions after claimant's
basketball injury in May, 1990. (Jt. Ex. 15) This is so
even though claimant had two back surgeries after May of
1990. The undersigned would be remiss if she did not
mention claimant's basketball injury in May of 1990.
Apparently, claimant injured his low back and took some time
off of work. He sought treatment at the McFarland Clinic,
where x-rays revealed mild to moderate disc space narrowing
at both the L4-5 levels, and mild "levo-scoliosis." (Jt.
Ex. 1, p. 6) He was treated conservatively, and returned to
light duty work in June of 1990. (Jt. Ex. 1, pp 7-15)
Currently, claimant is still working as an abrasive
packer, which is a job grade 2, although he is a back-up
operator on a machine which has been assigned a job grade 10
classification. This is a temporary assignment he can lose
at any time. He works a considerable amount of overtime,
most of which is voluntary. He has "posted," or applied for
two other jobs in the plant, but due to his restrictions,
was unable to secure these positions. Physically, he stated
that his current job aggravates his condition, as he feel
pain in his low back and right leg on a regular basis. Once
an avid basketball player, he is now unable to play, nor can
he golf, play tennis or climb hills. He is able to fish.
Prior to his injuries, claimant's job performance was
excellent, and he was considered a very good employee. His
Page 5
attendance was "100 percent." (Jt. Ex. 2) Currently,
claimant has missed so much work that his attendance is
being closely watched by the employer. If claimant
continues to miss work, he can be discharged for cause.
Peggy Pollard explained that management will review why
claimant has missed work, and take appropriate actions. She
also explained that his long-term disability was not counted
when the company was reviewing claimant's work attendance.
Claimant has been educated with respect to the safety
policies he is to follow, and the appropriate actions he is
to take in order to work within his restrictions. (Jt. Exs.
3-8; 10-13)
For some reason, the employer submitted evidence as to
claimant's average weekly earnings in 1990 calculated at the
rate used for 1994 wages. The undersigned believes that
claimant's hourly rate, for a job grade 2 position prior to
the injury, was $8.27. After he returned to his employment,
the hourly rate had increased to $8.67 for the same job
grade 2 position. Currently, due to claimant's additional
job grade 10 duties, he earns $10.70 per hour. (Jt. Exs. 9
and 14).
ANALYSIS AND CONCLUSIONS OF LAW
The sole issue to address is whether claimant has
sustained an industrial disability.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
Page 6
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
Claimant is young, and is at the beginning of his most
productive years as an employee, especially as a production
employee.
He has had a very rocky road to recovery after his
initial accident. He has suffered numerous other injuries
to his low back, and has undergone two surgeries.
Claimant has demonstrated his motivation by following
the physician's advice and participating in physical therapy
and work hardening programs. Likewise, he has been able to
finally complete a successful return to work. Claimant has
been able to work a substantial amount of overtime, and
earns an average of $637.64 per week.
The employer has accommodated claimant's restrictions,
which do not seem to limit his ability to successfully
perform his job duties. The troubling aspect of the case is
claimant's current problems with his attendance, and the
employer's method of disciplining his absences. Some of his
lost time must be attributable to his ongoing back problems,
and it almost seems as though claimant is being punished for
having been injured at work. Several of the documents have
a tone of admonishing the claimant for not following safety
procedures, but the undersigned believes claimant was always
just trying to perform his job functions in the best
possible way he could perform them.
In any event, it is refreshing that the employer has
helped claimant return to suitable work in the plant, and
has provided help when claimant's job duties required
lifting heavier objects.
Claimant is earning more now than prior to his initial
injury. He has no actual loss of earnings, and it is purely
speculative that claimant would have advanced to higher
paying jobs but for the injuries and resulting impairments
Page 7
and work restrictions.
After considering all of the factors enumerated above,
including claimant's age; his continued employment with the
defendant employer; a permanent impairment of 12-16 percent;
lifting and carrying restrictions of not more than 50
pounds; his recovery from two surgeries to his low back;
claimant's motivation; claimant's inability to perform all
functions of his job unassisted; and, his actual earnings,
it is determined that claimant has sustained a 20 percent
industrial disability.
ORDER
THEREFORE, it is ordered:
That defendants shall pay claimant one hundred (100)
weeks of permanent partial disability benefits at the rate
of two hundred eighty-seven and 07/100 dollars ($287.07) per
week commencing June 1, 1992;
That defendants shall pay accrued benefits in a lump
sum, and shall receive credit against the award for benefits
previously paid;
That defendants shall pay interest on the award, as
provided for under Iowa Code section 85.20;
That defendants shall pay the costs of this action;
That defendants shall file a claims activities report
as required by the agency.
Signed and filed this ____ day of February, 1994.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Jerry Schnurr III
Attorney at Law
801 Carver Bldg
P O Box 952
Fort Dodge IA 50501
Mr Roger L Ferris
Attorney at Law
1900 Hub Tower
699 Walnut St
Des Moines IA 50309
5-1803
Filed February 23, 1994
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
MICHAEL LYKINS, :
: File Nos. 963375,
996358
Claimant, 1003228, 1043918
:
vs. :
: A R B I T R A T I O N
3-M COMPANY, :
: D E C I S I O N
Employer, :
:
and :
:
OLD REPUBLIC INS. CO., :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
5-1803
Claimant awarded 20 percent industrial disability.
He had sustained several injuries at work and underwent two
back surgeries.
Work restrictions included limited lifting abilities and
bending activity. His impairment was between 12 and 16
percent.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
MICHAEL LYKINS, :
: File Nos. 963375,
996358
Claimant, : 1003228, 1043918
:
vs. :
: A M E N D E D
3-M COMPANY, :
: O R D E R
Employer, :
:
and :
:
OLD REPUBLIC INS. CO., :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
The following language is added to the decision/order filed
February 23, 1994.
That claimant shall pay a $65.00 filing fee for case No.
1043918.
The decision remains the same in all other respects.
Signed and filed this ____ day of February, 1994.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Jerry Schnurr III
Attorney at Law
801 Carver Bldg
P O Box 952
Fort Dodge IA 50501
Mr Roger L Ferris
Attorney at Law
1900 Hub Tower
699 Walnut St
Des Moines IA 50309