BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
LARAE JEAN PEDERSEN, :
:
Claimant, :
:
vs. :
: File Nos. 965283 & 1003241
HUMBOLDT COUNTY MEMORIAL :
HOSPITAL, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
FARM BUREAU MUTUAL INS., :
:
Insurance Carrier, :
Defendants. :
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STATEMENT OF THE CASE
This decision concerns two proceedings in arbitration
brought by LaRae Jean Pedersen on account of a binaural
hearing loss which she has experienced as a result of a
hepatitis vaccination that was administered to her as part
of her employment duties as a nurse at Humboldt County
Memorial Hospital. The parties have agreed that Larae has a
48 percent loss of hearing in both ears. Larae also
contends that she has sustained a brain injury which removes
this case from section 85.34(2)(r). The parties agree that
the rate of compensation is to be computed under section
85.36(10). Defendants contend that the only earnings to be
considered are the earnings from employment with Humboldt
County Memorial Hospital. Larae contends that earnings from
the family farm and other businesses should be included in
determining the rate of compensation. Claimant also seeks a
rehabilitation benefits pursuant to section 85.70, interest,
a penalty pursuant to section 86.13 and costs of the action.
The case was heard at Fort Dodge, Iowa, on February 4,
1994. The record consists of testimony from Robert A.
Dotson, Carla Pedersen, John Pierce, Martin Zaugg, Ellen
Schorzmann, Alan Pedersen, LaRae Pedersen, and Bill Faust.
The record also contains claimant's exhibits A and B and
defendants' exhibits I, II, III, and IV.
FINDINGS OF FACT
LaRae Pedersen is married to Alan Pedersen. Alan's
family operates a somewhat complex, diversified family
business which includes Alan, LaRae, Alan's brother, and
other family members as well as Alan's parents. The
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principle portion of the business is farming but other
operations are also included. These include an automobile
parts store, antique shop and rental properties. Alan and
LaRae also have separate rental properties which are not
part of the family business arrangement. Different members
of the family have principle responsibility for different
portions of the business operations. Alan Pedersen was
principally engaged in farming while his brother, Gary,
operated the auto parts store. Alan's father carried
principle responsibility for maintaining equipment while
Carla Pedersen, Alan's mother, acted as general manager of
the entire operation. LaRae has performed a variety of
functions including managing rental properties and general
assistance to Alan and other family members. A considerable
amount of the profits from the businesses were received by
the various family members in kind or through having the
business pay some of their living expenses. A formula
existed for dividing some of the business profits through a
somewhat complex formula. Robert A Dotson, an attorney who
was involved in establishing the organization, testified at
length regarding the operation of the family businesses.
Dotson applied a formula developed and published by Iowa
State University which provides a means of apportioning farm
profits between return on investment and return to labor. A
portion characterized as return to labor is intended to
represent the value of the management and physical labor
contributed by the farm operators to the operation.
According to Dotson the figure of $26,000 per year was an
appropriate amount to be allocated as the value of the
management and labor provided by Alan and LaRae during each
of calendar years 1989 and 1990. Dotson also noted rental
income of $5,825 in 1989 and $6,937 in 1990 which again were
to be divided between Alan and LaRae. According to Dotson
his computations did not factor out any work which was
performed by other family members and the calculations
likewise contain no factor for distinguishing between
profitable years and unprofitable years.
The claimant's income tax returns are in evidence as
part of exhibit B. Alan and LaRae's 1989 Federal Income Tax
Return shows their adjusted gross income to have been
slightly over $7000. (exhibit B, page 35). Of that amount,
more than $4000 resulted from LaRae's employment at Humboldt
County Memorial Hospital. Four thousand dollars was
reported as wages which were paid to Alan by Gerald D.
Pedersen. The return shows a business loss of $500, rental
losses of nearly $11,000 and farm income of approximately
$10,000. The 1990 income tax return shows LaRae's wages
from Humboldt County Memorial Hospital in the amount of
approximately $3000, a business loss of nearly $2000, rental
losses exceeding $12,000, and farm income of approximately
$1500. The adjusted gross income for 1990 is shown as a
loss of nearly $9500. (ex. B, p. 64).
According to testimony given at hearing, LaRae was
covered by a workers' compensation insurance policy which
Page 3
had been purchased for the Pedersen family business
operations. The policy was not offered for evidence. No
evidence regarding the way in which the premium for that
policy was computed was offered. It is not known whether or
not LaRae was specifically named on the policy or whether
testimony of her being covered was accurate or an assumption
of some sort.
During the 12 calendar months preceeding LaRae's
injury, her gross earnings from Humboldt County Memorial
Hospital total $4,344.52. There is no evidence that she was
employed by any other employer during the 12 calendar months
preceeding September 6, 1990, the date of injury.
The medical records in this case show that LaRae is
afflicted by tinnitus as well as her hearing loss. There is
evidence that she has balance and memory problems. There is
no objective measurement in the record of the degree or
extent of her tinnitus, headaches, balance or memory
problems. It may be that those types of problems are not
capable of objective measurement. According to LaRae's
testimony, the medical records and the testimony of other
witnesses, LaRae's tinnitus, headaches, balance and memory
problems appear to be troublesome but are not independently
disabling. The only reason given by LaRae for choosing not
to return to work at Humboldt County Memorial Hospital was
her hearing impediment. No physician in the record of this
case has indicated that LaRae has any disability on account
of her tinnitus, headaches, balance or memory problems.
LaRae was paid weekly compensation benefits at the
times and in the amounts noted on the attachment to the
hearing report which was filed with the undersigned at the
commencement of the hearing.
With regard to the cause and onset of the hearing loss,
it was stipulated at the time of hearing that the hepatitis
vaccination was responsible. Claimant's hearing loss was
first noted in April 1990 at which time the impression of
F.E. Gonzales, M.D., was that it may very well represent a
congenital hearing loss. No reference to immunizations
appears. (ex. I, p. 1). In a report dated November 9,
1990, Bruce J. Gantz, M.D., a professor at the University of
Iowa Hospitals and Clinics, issued a report stating that
there are no known reports of hepatitis vaccination inducing
sudden deafness. (ex. I, p. 2). Eventually, on November 6,
1991, Robert R. Updegraff, M.D., issued a report in which he
stated, "...it is my considered conclusion, as best I am
able to relate at this time, that Mrs. Pedersen's problem(s)
are causally related to her hepatitis vaccinations." Later
in that same report, Dr. Updegraff states:
In one of our progress notes you may note that
Dr. McCabe was wondering whether or not there
might be a causal relationship with hepatitis
vaccinations. We are all in quite agreement that
this is a most unusual case. To my knowledge, Dr.
McCabe has not seen a similar case and, I believe,
Dr. Gantz mentioned such to Dr. Delucca. I have
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not seen a similar case.
After reflection and thorough discussions, and
again visit with Dr. McCabe within the past month
or so regarding all findings and histories--our
considered opinion is there exists a reasonable
causal relationship to the three hepatitis
vaccinations (with Mrs. Pedersen's ear symptoms.)
In that same report of November 6, 1991, Dr. Updegraff
assigned claimant a rating of impairment consisting of 1.88
percent for the left ear, 33 percent for the right and a
binaural impairment of 6.57 percent. (ex. A, p. 12).
The stipulation of the parties shows that on November
18, 1991, checks were issued to claimant with one in the
amount of $4,682.70 representing 58.286 weeks of healing
period compensation. The second was issued in the amount of
$803.40 representing 10 weeks of permanent partial
disability compensation and a third was issued in the amount
of $344.34 representing 4.286 weeks of compensation pursuant
to an auxier notice. In the hearing report the parties
stipulated that claimant's entitlement to healing period ran
from September 17, 1990 through October 30, 1990, and that
the entitlement to permanent partial disability benefits
commences on November 1, 1991. It is noted that the date of
October 31, 1991, is omitted. That day will be considered
by the undersigned to be a day of healing period
compensation entitlement. The healing period span of time
is therefore 58 4/7 weeks. According to the stipulation
attached to the hearing report 58 2/7 weeks of healing
period benefits were paid, leaving a shortfall of 2/7 weeks.
On that same date, 10 weeks of permanent partial disability
compensation benefits were paid. The 6.75 percent rating
provided by Dr. Updegraff provides an entitlement to 11.498
weeks of compensation under the provisions of section
85.34(2)(r). The shortfall is therefore 1.498 weeks of
compensation for permanent partial disability based upon Dr.
Updegraff's original rating. Defendants also paid 4.286
weeks pursuant to an auxier notice. Since the payment was
made on November 18, 1991, and payments were due running
through January 1992, there was no reason to pay an
additional 30 days of benefits. In summary, the total
amount owed by defendants to LaRae Pedersen on November 18,
1991, was 58 4/7 weeks of healing period compensation and 2
4/7 weeks of permanent partial disability compensation. The
balance of the permanent partial disability entitlement had
not yet accrued. This totals 61 1/7 weeks or $4,912.23.
All of the payments paid were past due and owing. Sixty-one
and one-sevenths weeks round to 61 weeks. According to the
10 percent interest table found at page 145 of the 1990-91
Guide to Iowa Worker's Compensation Claim Handling, the
appropriate factor is 3.5192. When multiplied by $80.34 the
result is $282.73 of accrued interest. The amount due and
owing to LaRae Pedersen on November 18, 1991 was therefore
$5,194.96. The payments paid total $5,830.44. The balance
of $635.48 was therefore applied to unaccrued permanent
Page 5
partial disability compensation. This amounts to 7.910
weeks. That amount of permanent partial disability pays the
benefits due through January 13, 1992.
The additional permanent partial disability established
by the stipulation of the parties in this case was therefore
due and payable, for purposes of computing interest, in
weekly payments commencing on January 14, 1992. The parties
stipulated at hearing that claimant's entitlement to
compensation under section 85.34(2)(r) was 84 weeks of
benefits. The payments paid on November 18, 1991, satisfied
10.196 weeks of permanent partial disability compensation
leaving 73.804 weeks unpaid. For purposes of computing
interest, the additional entitlement was payable commencing
January 14, 1992. Those 73.804 weeks compute to a total
value of $5,929.41. The next payments paid to claimant were
paid on February 2, 1994, in the total amount of $6,619.41.
Seventy-three point eight zero four weeks is equivalent to
73 6/7 weeks. That amount expires on June 13, 1993. From
June 13, 1993 through February 2, 1994, is a span of 33 3/7
weeks.
During the amount of time when permanent partial
disability compensation benefits were due running from
January 14, 1992 through June 13, 1993, interest accrued.
The appropriate factor is 5.1942. When multiplied by the
rate of $80.34 per week, the interest which accrued is
$417.30. The sum of $5,929.41 was unpaid for a period of 33
3/7 weeks. This amounts to 234 days. Interest for one year
on that amount is $592.94. The amount attributable to 234
days is $380.13. Accordingly, as of February 2, 1994,
defendants owed LaRae Pedersen the sum of $5,929.41 in
permanent partial disability compensation benefits and
$797.43 in interest. This totals $6,726.84. Since their
payment was $6,619.41, claimant was underpaid by the sum of
$107.43. That amount continues to draw interest at the rate
of 10 percent per annum computed from February 2, 1994,
until the date it is actually paid. The per diem rate of
interest accrual is $.03 per day.
The amount of permanent partial disability compensation
in this case has been established by stipulation. It should
be noted that agency rule 343 IAC 2.4 provides that payments
made in accordance with the Guides to the Evaluation of
Permanent Impairment, shall be recognized by the industrial
commissioner as a prima facie showing by the employer with
section 85.34(2)(r) of the Iowa Workers' Compensation Act.
It should be noted that those guides provide for a 25
decibel threshold or fence as is discussed by the physicians
in this case when evaluating the extent of the claimant's
hearing loss. Reasonable arguments can be made either way
with regard to whether or not that 25 decibel fence should
be applied. There is no need to determine the answer in
this decision since the entitlement is established by
stipulation. There is sufficient validity to support the
application of the 25 decibel fence to make it quite
reasonable for defendants to have relied upon the initial
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evaluation made by Dr. Updegraff and to have continued to
rely upon that rating despite the subsequent higher ratings.
The issue over the manner of computing the entitlement is a
fairly debatable issue of law and it would not have been
unreasonable for defendants to have continued to assert that
position as a litigated issue at the time of hearing in this
case.
The payments paid to claimant on November 18, 1991,
would have been adequate to pay all accrued liability for
healing period and permanent partial disability
compensation, in accordance with Dr. Updegraff's initial
rating, if interest were to have been excluded. When
interest is included, the payment paid on November 18, 1991,
was short by 1.302 weeks, an amount equal to $104.60. The
laws and rules of the industrial commissioner with regard to
interest and the simple math used in computing it are
sufficiently clear and well established that there appears
to be no reasonable basis for having underpaid the claim on
November 18, 1991, based upon the facts which then exited,
particularly when those facts are viewed in the light most
favorable to the defendants. It was clearly unreasonable to
have not paid the accrued interest at that time. The amount
unreasonably denied on November 18, 1991, was $104.60.
CONCLUSIONS OF LAW
The right of an employee to receive compensation for
injuries sustained is statutory. The statute conferring this
right can also fix the amount of compensation payable for
different specific injuries. The employee is not entitled
to compensation except as the statute provides. Soukup v.
Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
Permanent partial disabilities are classified as either
scheduled or unscheduled. Compensation for scheduled
permanent partial disability is determined under Iowa Code
section 85.34(2)(a) - (t) according to the functional loss
of use of the member without considering the impact of the
injury upon the individual's earnings or earning capacity.
Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983);
Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983);
Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95
(1960); Moses v. Nat'l Union Coal Mining Co., 194 Iowa 819,
184 N.W. 746 (1921).
An injury to a scheduled member may, because of after
effects or compensatory change, result in permanent
impairment of the body as a whole. Such impairment may in
turn be the basis for a rating of industrial disability. It
is the anatomical situs of the permanent injury or
impairment which determines whether the schedules in section
85.34(2)(a) - (t) are applied. Lauhoff Grain v. McIntosh,
395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American,
Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber
Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v. Shores
Co., 222 Iowa 272, 268 N.W. 598 (1936).
In this case, the claimant has problems other than her
loss of hearing. Those problems do not, however, appear to
Page 7
be disabling. Her disability seems to be solely
attributable to her loss of hearing. There is much
authority for the proposition that tinnitus is not to be
compensated as a scheduled disability. 1B Larson, Workmen's
Compensation Law, 41.55; Dotolo v. FMC Corp., 375 N.W.2d 25
(Minn 1985); Hughes v. Pacific Northwest Bell, 61 Or. App.
566, 658 P2d 548 (1983). This would seem reasonable because
tinnitus typically has little impact on hearing, though it
is typically seen in association with a loss of hearing. It
is particularly reasonable in the sense that audiograms
which measure the extent the loss of hearing do not measure
tinnitus. Nevertheless, this agency has held that tinnitus
is to be compensated under the schedule. Cannon v. Keokuk
Steel Casting, file number 795331 (App. Dec. Jan. 27, 1988).
When there is an injury to a scheduled member which an
individual wishes to have compensated beyond the schedule,
it is necessary to introduce evidence which proves, by a
preponderance of the evidence, that there is disability in
some part of the body that is not within the schedule. Mere
aches, pains, discomforts or other minor abnormalities are
not sufficient. It is necessary that those abnormalities be
of sufficient magnitude to be disabling. It is therefore
concluded that in this case the evidence does not show
claimant to have any disability other than her loss of
hearing. The compensation for permanent partial disability
is therefore to be computed pursuant to section 85.34(2)(r).
A major issue in this case is the rate of compensation.
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. of App. P. 14(f).
The simple answer to this case would be to state that
the case Winters v. John V. Te Slaa, I Industrial
Commissioner Report 367 (App. Dec. 1981) controls. The
essence of that decision is that when looking to section
85.36(10) the term "employment" does not include
self-employment. It can quite reasonably be urged that
self-employment is in fact employment. Any one who has been
self-employed would tend to agree with that assertion.
Another term which appears in section 85.36(10) is
"earnings." Section 85.61 defines that terms "gross
earnings" and "spendable weekly earnings" is clear that when
looking at section 85.61 there is a requirement for payments
and also a reference to deduction or withholding for taxes.
This implies that the term "earnings" means taxable earnings
of the type a person earns when employed by an employer.
When claimant's income tax returns for 1989 and 1990 are
reviewed, it becomes apparent that, if claimant's earnings
from Humboldt County Memorial Hospital were to be excluded
and her husband's earnings are shown on the W2 from Gerald
V. Pedersen were excluded, that there would be no taxable
earnings for 1989 or 1990. Accordingly, the earnings from
self-employment which produces a net operating loss cannot
constitute earnings to be used in computing the rate of
compensation because there are no earnings.
Page 8
There is evidence in the record of this case that
claimant was covered for purposes of workers' compensation
by the family business. The family business operation can
best be described as some form of a partnership. According
to the record it is not incorporated. In view of such
claimant would be exempt from workers' compensation coverage
under section 85.1. She is one of those individuals who,
however, could be covered if she were to be specifically
included in a policy pursuant to section 85.1(6). From the
record made in this case it cannot be determined whether or
not she was specifically included or to what extent.
Section 85.36(11) provides a method for computing the weekly
rate of compensation for individuals such as claimant if the
compensation insurance coverage has been purchased. It is
well known that the premium charged for workers'
compensation insurance is based, largely, upon the earnings
of the individuals covered by the insurance policy.
Claimant chose to not offer the policy into evidence at the
hearing. It is therefore not possible to determine whether
or not she was covered by workers' compensation insurance or
the rate of earnings used to compute the premium. The legal
conclusion from a family member is not binding. Further,
the method of computing the premium would be expected to
have bearing upon the rate of compensation to be paid for
any injury that occurred in the course of employment for the
family business. It would do no violence to the workers'
compensation system to include the earnings used to compute
the premium for a policy issued in accordance with sections
85.1(6) and 85.36(11) since premiums are being collected
commensurate with the benefits to be paid. It does
violence, however, to the workers' compensation system to
require benefits to be paid based upon earnings which were
not in some manner subject to a workers' compensation
premium. Accordingly, in this case, since claimant did not
have any earnings except for those from Humboldt County
Memorial Hospital and because there is no record showing a
rate of earnings upon which premiums were paid pursuant to
sections 85.1(6) and 85.36(11), the rate of compensation
needs to be based solely upon claimant's earnings with
Humboldt County Memorial Hospital. The earnings are shown
at defendants' exhibit II. The rate of compensation is
therefore $80.34 per week since those earnings average
$86.89 per week and claimant is married with an entitlement
to five exemptions.
Weekly compensation benefits are due and payable weekly
commencing on the eleventh day after the injury under Iowa
Code section 85.30. Compensation for permanent partial
disability is due and payable commencing at the end of the
healing period under Iowa Code section 85.34(2). If any
type of weekly compensation is not paid at the time it comes
due, it accrues interest pursuant to Iowa Code section
85.30. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986); Farmers
Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa
1979).
Page 9
As indicated by claimant in her brief, the United
States Rule is applicable. Christensen v. Snap-On Tools
Corp., file number 936799 (App. Decn April 21, 1994). By
virtue of the Guide to Iowa Worker's Compensation Claim
Handling, published by the Division of Industrial Services
the methods used for computing interest in accordance with
that guide are correct and permissible. That is not to say
that other methods might not be equally accurate or legally
sufficient but it is clear that computations made in
accordance with that guide are deemed correct. It should be
noted that the differences that result when other methods of
computing interest are used turn out to be quite minimal
when compared to the interest computed in accordance with
the guide. It should further be noted that the interest is
simple interest. It is not to be compounded. Compounding
occurs only at the time when payments are paid with the
first portion of the payment being applied to accrued
interest and the balance to the principal, namely the
accrued entitlement to weekly compensation benefits. Any
shortage leaves the accrued portion of weekly benefits
unpaid and drawing interest which is to be satisfied at the
next time any payments are paid. The undersigned has
completed computations of entitlement and interest as set
forth in the "Findings of Fact" portion of this decision.
Accordingly, it is determined that when all payments are
considered, together with interest, that as of February 2,
1994, the claimant was owed the sum of $107.43. That sum
continues to accrue interest until the time that it is paid.
The per diem amount is $.03 per day.
Section 86.13 permits an award of up to 50 percent of
the amount of benefits delayed or denied if a delay in
commencement or termination of benefits occurs without
reasonable or probable cause or excuse. The standard for
evaluating the reasonableness of defendants' delay in
commencement or termination is whether the claim is fairly
debatable. Where a claim is shown to be fairly debatable,
defendants do not act unreasonably in denying payment. See
Stanley v. Wilson Foods Corp., File No. 753405 (App. August
23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No.
818849 (App. November 1, 1989).
It is principally a matter of semantics with regard to
whether or not one applies a "fairly debatable" test. It is
clear that the standard for a penalty under section 86.13
does not require any showing of bad faith, wanton or willful
misconduct. Mere negligence is sufficient. Boylan v.
American Motorist Ins. Co., 489 N.W.2d 742 (Iowa 1992).
Since this matter deals with workers' compensation, the
claim adjusting decisions are typically made by experienced
workers' compensation adjusters and claim handlers. The
standard to be applied is not that of a lay person or of
someone who has a very limited knowledge of the workers'
compensation laws and practices within this agency. It is
determined that it was not unreasonable for defendants to
rely upon the original impairment rating from Dr. Updegraff
Page 10
when they made payments to claimant on November 18, 1991.
It was, however, unreasonable for defendants to have
underpaid the claim at that point in time. As previously
indicated, the underpayment was in the amount of $104.60.
It is appropriate to assess a penalty of $50 for that
underpayment. The proper method of computing interest and
of computing a scheduled disability entitlement is so simple
that there is no reasonable justification for an experienced
workers' compensation adjuster or claim handler to have
miscalculated. With regard to the failure to pay a higher
amount voluntarily until February 2, 1994, such was not
unreasonable. There was a very substantial question of law,
which as of this point in time remains unanswered, with
regard to whether or not a 25 decibel fence should be
employed when computing hearing loss for purposes of section
85.34(2)(r). Since that question of law exists and is
considered by the undersigned to be a very bona fide, good
faith question, the failure to pay the higher impairment
ratings which did not apply a 25 decibel fence is not
unreasonable. There is therefore no basis for imposition of
a penalty.
Once a stipulation regarding the extent of permanent
disability was entered into, it became incumbent upon
defendants to pay that amount promptly. Since it was
established by stipulation it was within the realm of the
parties to have negotiated with regard to whether or not
interest would be applied. While interest has been held to
apply in view of the lack of a stipulation to the contrary,
it was not unreasonable under these circumstances for
defendants to have failed to pay the full amount owed on
February 2, 1994. In fact, the underpayment is only
$107.43. That amount is nearly within the range of
computational variations or methods. The underpayment on
February 2, 1994, is not considered by the undersigned to be
unreasonable and will not be used as a basis for imposing a
penalty under section 86.13.
Claimant also seeks to recover costs. She is clearly
entitled to recover the filing fee of $65 and the fee for
service of the original notice in the amount of $4.58. The
charge of $3685 for a medical report is quite a bit larger
than that customarily seen in this agency. The report is a
combination of treatment, litigation preparation and
consultation with both parties. Normally, the amount of an
expert witness fee that can be assessed as costs is limited
to $150 per day. (section 622.72). Dowell v. Wagler, file
number 880145 (App. Dec. Nov. 26, 1991). The industrial
commissioner has applied that same standard to the amount of
charges for a report which can be assessed as part of the
costs under the agency rules. Goodrich v. Schafbuch Farms
Inc., file number 914987 (App. Dec. June 30, 1993). It is
noted that assessment of costs, is, discretionary. (section
86.40). It is deemed appropriate in this case to assess the
charges from Dr. Updegraff 50-50 between the parties. Of
the $3685 charged by Dr. Updegraff, claimant shall pay
Page 11
$1,842.50 and defendants shall pay $1,842.50. Claimant
shall also be entitled to recover from defendants as costs
the additional sum of $150. The payment for costs to be
paid by defendants to claimant is therefore $219.58.
It is concluded that all of the payments due in this
case are due in file number 965283. File number 1003241 is
a duplication. There is but one injury.
ORDER
IT IS THEREFORE ORDERED that defendants pay LaRae Jean
Pedersen pay one hundred seven and 43/100 dollars ($107.43)
for the balance of her unpaid permanent partial disability
compensation. Defendants shall pay interest on that amount
computed from February 2, 1994, at the rate of three cents
($.03) per day until such principal and interest is fully
paid.
It is further ordered that defendants pay LaRae Jean
Pedersen fifty dollars ($50) as a penalty under the fourth
unnumbered paragraph of section 86.13 based upon the failure
to properly calculate, compute and pay weekly compensation
for healing period and scheduled permanent partial
disability and accrued interest on November 18, 1991. The
fifty dollar ($50) penalty is payable the date of this
decision and thereafter draws interest pursuant to section
85.30.
It is further ordered that defendants pay to claimant
the costs in the amount of two hundred nineteen and 58/100.
It is further ordered that the fees of Dr. Updegraff in the
amount of three thousand six hundred eighty five dollars
($3685) shall be divided equally between the parties with
each to pay one thousand eight hundred forty-two and 50/100
dollars ($1,842.50).
It is further ordered that file number 1003241 is
dismissed as it is a duplication of the injury which has
been found to be compensable in this case. All payments in
this case are to be paid under file number 965283.
It is further ordered that defendants file claim
activity reports as requested by this agency.
Signed and filed this __________ day of May, 1994.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Mark Soldat
Attorney at Law
714 E State St
Algona, Iowa 50511
Page 12
Mr. William D. Scherle
Attorney at Law
8th Floor Fleming Bldg
218 6th Ave
Des Moines, Iowa 50309
1108.30 1803.1 2208 3001 2907
3800 4000.2
Filed May 31, 1994
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
LARAE JEAN PEDERSEN,
Claimant,
vs.
File Nos. 965283 & 1003241
HUMBOLDT COUNTY MEMORIAL
HOSPITAL,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
FARM BUREAU MUTUAL INS.,
Insurance Carrier,
Defendants.
------------------------------------------------------------
1108.30 1803.1 2208
Claimant experienced a bilateral loss of hearing as a result
of an immunization which was administered to her as part of
her employment. She also had complaints of tinnitus, slight
loss of balance, memory loss and headaches which were not
well corroborated medically. It was held that the injury
was limited to the schedule under 85.34(2)(r).
3001
Claimant worked part-time and was self-employed in a family
farming operation. The farming operation had shown a loss.
It was held that there were no earnings from self-employment
to be used in getting the rate of compensation above that
which was provided by the earnings from the defendant
employer. There was evidence that claimant was covered by a
workers' compensation policy in the family farming operation
but the policy was not introduced into evidence nor was
information regarding the rate which would be applicable
under section 85.36(11). It was held that the claimant has
the burden of proving the rate to which she is entitled. It
was held that it might be proper to include the earnings for
which a premium was charged in accordance with sections
85.1(6) and 85.36(11) in cases such as this if the proper
Page 2
evidence is in the record.
2907
Where a doctor charged in excess of $3000 for consulting
with both claimant and defense counsel, those fees were held
to be paid 50-50 by both parties with the claimant receiving
an additional sum of $150 as costs from defendants.
3800
The Unites States Rule was held to be applicable. Payments
are to be applied first to accrued interest and then to
satisfy the weekly benefit entitlement which exists. The
Guide to Iowa Workers' Compensation Claim Handling was
held to be the preferred method for computing interest.
4000.2
Penalty applied when defendants failed to properly compute
healing period, scheduled permanent partial disability and
interest entitlement. It was a simple case with simple
computations. There was no reason for the underpayment.
Defendants held not required to pay an additional 30 days of
benefits where permanent partial disability was paid in
advance.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
TERI OSBORNE,
Claimant,
vs.
File No. 965423
HY-VEE FOOD STORES, 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 May 13, 1993 is affirmed and is adopted as the final
agency action in this case.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of August, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Barry Moranville
West Bank Bldg., Ste 212
1601 22nd St.
West Des Moines, Iowa 50266
Mr. Jeff M. Margolin
Attorney at Law
2700 Grand Ave., Ste 111
Des Moines, Iowa 50312
5-1803
Filed August 31, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
TERI OSBORNE,
Claimant,
vs.
File No. 965423
HY-VEE FOOD STORES, INC.,
A P P E A L
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
Defendants.
____________________________________________________________
5-1803
Based upon all the factors of industrial disability,
including claimant's age (30 years), education (eleventh
grade), work experience, functional impairment ratings (5-20
percent), current earnings as compared with earnings at the
time of her injury, work restrictions, and claimant's
injury, it is determined that she is seven percent
industrially disabled.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
BALLARD STRONG, :
:
Claimant, :
:
vs. :
: File No. 965952
WILBOS ENERGY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
NATIONAL UNION FIRE, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Ballard
Strong against his former employer Wilbros Energy Services
Company and its insurance carrier based upon an injury that
occurred on October 8, 1990. The only issue is
determination of the amount of permanent partial disability
affecting Strong's foot. It is stipulated that the
disability is a scheduled disability of the foot. The case
is one in which the maximum weekly rate for permanent
partial disability of $647 is applicable. The evidence
consists of testimony from Ballard Strong and Patricia
Heinen. The record also contains jointly offered exhibits
I, II and III. The case was heard at Des Moines, Iowa, on
January 11, 1994.
FINDINGS OF FACT
Ballard Strong injured his left foot on October 8,
1990, when the blade of a caterpillar tractor fell on it.
He suffered a severe crush injury which included fractures
of the third, fourth and fifth metatarsals in his left foot.
(exhibit I, page 8). Strong was injured at Dubuque, Iowa,
but lives at Ardell, Texas. His care was transferred to F.
James Herbertson, M.D., an orthopedic surgeon near
claimant's home. Eventually claimant's recuperation from
the injury ended. He has residual complaints of pain and
swelling in the foot. The condition is sufficiently severe
that he is unable to wear normal footwear in the usual
manner. He requires an insert in his shoe. The pain in the
foot increases with walking. Claimant was observed to walk
with a noticeable limp. He cannot wear footwear with a
heel. He has to have footwear altered so he can wear it.
Page 2
Ballard Strong appears to be an industrious person who
has been gainfully employed on a regular basis both before
and after the injury in this case. His appearance and
demeanor was observed. His statements regarding his
symptoms and problems which continue with his foot are found
to be accurate. He has been offered surgery to treat
neuromas which have developed in his foot. There is a
possibility of blocking the nerves or rebreaking and
realigning the bones in his foot. He is understandably
reluctant to undergo those procedures.
Dr. Herbertson has been claimant's principle treating
physician since he left Iowa. In May 1991 Dr. Herbertson
rated claimant as having a 35 percent permanent partial
impairment of his left foot. (ex. I, pp. 23 & 25). Dr.
Herbertson stated that the rating was based on the AMA
Guides to the Evaluation of Permanent Impairment, 3rd ed.
(ex. I, p. 26). According to the report claimant has a 10
percent impairment because of loss of motion of the
metatarsophalangeal joints, a 10 percent disability due to
numbness and loss of feeling in the toes and a 15 percent
disability due to loss of the metatarsal arch. Equivalent
impairments were 25 percent of the lower extremity or 10
percent of the whole person.
The undersigned has examined the third edition of the
Guides and has not found any particular place at which a
disability rating is expressly assigned for loss of the
metatarsal arch. The third edition of the Guides does not
expressly address fractures of the metatarsals or loss of
the normal arch of the foot. It is noted that ankylosis of
the metatarsophalangeal joints of the third, fourth and
fifth toes, the ones which were fractured, under table 31
found at page 57, can allow a 9 percent impairment of the
foot. When looking at tables 26 through 29, there seems to
be somewhat of a pattern of a joint being ankylosed at
neutral position receiving an impairment that is roughly 50
percent of the impairment for amputation at the same joint.
The closest comparable table the undersigned could find is
table 43 at page 66 in which a midmetatarsal amputation of
the foot renders a 50 percent impairment of the foot. Half
of that would be 25 percent of the foot. It is noted that
in this case, it is the metatarsals which were fractured.
That is a location which is in the midfoot. It does not
directly involve the toes as we typically know them. The
toes extend distally from the metatarsophalangeal joints.
Those joints are the distal end of the metatarsal bones. It
is noted that the third edition of the Guides also allows
impairment due to pain and numbness. (pp. 65-71).
The third revised edition is essentially identical to
the third in regard to measuring impairment of the foot.
The fourth edition, however, which was printed in June 1993
does appear to expressly address the condition which exists
in this case. It is found at page 86 in table 64. When the
metatarsal fracture with plantar angulation and
metatarsalgia is considered, the book would appear to
Page 3
provide a 7 percent rating for the fifth and a 3 percent
rating for each of the third and fourth. The total would
amount to 13 percent. If added to the 9 percent rating
which is available under all three editions for the loss of
motion at the metatarsophalangeal joints, a rating in the
range of 22 percent would seem appropriate. If additional
impairment is added for the nerve injury portion of this
injury (the neuromas), it is again quite reasonable to end
up with an impairment rating in the range of 35 percent.
Claimant was evaluated by Edward T. McCaffrey, D.P.M.,
for purposes of determining impairment. Dr. McCaffrey
concurred with the rating from Dr. Herbertson but stated
that Dr. Herbertson's rating was a bit conservative. It is
found the Dr. McCaffrey is talking of an equivalent
disability of the whole person when he states that
claimant's disability is between 10 and 15 percent. That
statement is made in the context of Dr. Herbertson's 10
percent permanent disability to the whole person equivalent
rating. (ex. I, pp. 37-38).
Claimant was evaluated by G. L. Becker, M.D. Dr.
Becker concluded that claimant has a 10 percent disability
of his left foot. Dr. Becker goes on to relate the
equivalent impairments of 7 percent of the lower extremity
and 3 percent of the total body. (ex. I, pp. 33-34).
Claimant's records were reviewed by Thomas W. Bower,
L.P.T. Bower indicated that claimant had at most a 6
percent impairment of the left foot. (ex. I, pp. 35-36).
It is found that Ballard Strong has a 35 percent loss
of use of his left foot as a result of the injury he
sustained on October 8, 1990. This was a severe crush
injury. Crush injuries often cause nerve, muscle and other
soft tissue damage that is not adequately addressed in the
Guides. This injury involved multiple fractures.
Neuromas have developed. The disability in this case comes
not so much from a loss of range of motion as it does from a
loss of the ability to make use of the foot for the things
for which individuals normally use a foot, namely, standing
and walking. It is determined and concluded that the rating
from Dr. Herbertson is a reasonable assessment of the extent
of Ballard Strong's loss of use of his left foot. The
ratings of 10 percent and 6 percent which appear in the
record are totally unreasonable and inadequate. While the
ratings may be supportable under the AMA Guides they do not
provide a realistic good faith assessment of the loss of use
of the claimant's left foot in this case.
CONCLUSIONS OF LAW
The right of an employee to receive compensation for
injuries sustained is statutory. The statute conferring this
right can also fix the amount of compensation payable for
different specific injuries. The employee is not entitled
to compensation except as the statute provides. Soukup v.
Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
Permanent partial disabilities are classified as either
Page 4
scheduled or unscheduled. Compensation for scheduled
permanent partial disability is determined under Iowa Code
section 85.34(2)(a) - (t) according to the functional loss
of use of the member without considering the impact of the
injury upon the individual's earnings or earning capacity.
Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983);
Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983);
Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95
(1960); Moses v. Nat'l Union Coal Mining Co., 194 Iowa 819,
184 N.W. 746 (1921).
This agency has adopted rule 343 IAC 2.4 which makes
the Guides to the Evaluation of Permanent Impairment,
published by the American Medical Association, a guide for
determining permanent partial disabilities under Iowa Code
sections 85.34(2)(a) - (r). It goes on to state that
payments made in accordance with the Guides are recognized
as a prima facie showing of compliance by the employer or
insurance carrier with the workers' compensation act but the
rule does not purport to prevent other medical opinions or
guides for establishing the degree of permanent impairment.
It must be recognized at the outset that there is a
difference between impairment and disability. Impairment is
a medical term whereas disability is the statutory term
found in the workers' compensation laws. All three editions
of the Guides distinguish between impairment and disability.
The Iowa Supreme Court has recognized that there are some
critical differences between the medical terminology found
in the Guides and the statutory language in the workers'
compensation acts. Lauhoff Grain v. McIntosh, 395 N.W.2d
834, 839 (Iowa 1986). The Iowa Supreme Court has not
adopted the Guides. It has held that in dealing with a
scheduled loss the term loss means loss of use. Moses, 194
Iowa 819, 184 N.W. 746. It has been held permissible to
consider any evidence bearing on the loss of use so long as
earning capacity is not considered. Soukup, 222 Iowa 272,
268 N.W. 598.
Despite the fact that an agency rule adopts the Guides,
agency precedents consider it impermissible to rely upon the
Guides in deciding a case unless a physician has stated
that reliance was made upon the Guides. Shank v. Mercy
Hospital Medical Center, file number 719627 (App. Dec.
August 28, 1989). Likewise, it is appropriate to determine
scheduled permanent partial disability without there being
any impairment rating from a physician in the record. Shank
v. Mercy Hospital Medical Center, file number 719627 (App.
Dec. September 27, 1991). It is clear that the Guides are
not intended to be controlling on the issue of scheduled
permanent partial disability. They are only a guide.
There is sometimes a tendency to place undue emphasis
on the Guides. This probably results from the fact that
medical practitioners commonly refer to them. It is
important to remember, however, that it is the loss of use
that is to be compensated, not an impairment rating. The
impairment rating scheme in the Guides, while uniform, does
not address every condition which can cause a person to lose
Page 5
the ability to make use of a body member. The treatment of
pain under the Guides is somewhat controversial. If severe
pain results whenever a person stands on his foot a person
can have a loss of use of the foot, regardless of what
rating of impairment may or may not be authorized under the
Guides. The Guides are necessarily arbitrary in order to
be uniform.
The 35 percent loss of use of the foot entitles Ballard
Strong to recover 52 1/2 weeks of compensation for permanent
partial disability payable at the rate of $647 per week
commencing June 3, 1991. It has been stipulated that
$3,212.27 have been paid by paying 4.764 weeks at the rate
of $674.28. Defendants are entitled to a dollar-for-dollar
credit for those payments.
ORDER
IT IS THEREFORE ORDERED that defendants pay Ballard
Strong fifty-two point five (52.5) weeks of compensation for
permanent partial disability at the rate of six hundred
forty-seven dollars ($647) per week payable commencing June
3, 1991.
It is further ordered that defendants receive credit
against this award in the amount of three thousand two
hundred twelve and 27/100 dollars ($3,212.27). Such shall
be allocated to the weekly payments which first came due and
payable. The remaining amount of the award is accrued and
unpaid. It shall be paid to claimant in a lump sum together
with interest computed pursuant to section 85.30.
It is further ordered that the costs of this action are
assessed against defendants pursuant to rule 343 IAC 4.33.
It is further ordered that defendants file claim
activity reports as requested by this agency pursuant to
rule 343 IAC 3.1.
Signed and filed this __________ day of March, 1994.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Arvid Oliver
Attorney at Law
2635 Hubbell Ave
Des Moines, Iowa 50317
Mr. William Scherle
Attorney at Law
8th Floor Fleming Bldg
218 6th Ave
Des Moines, Iowa 50309
1402.40 1803 1803.1 3700
Filed March 9, 1994
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
BALLARD STRONG,
Claimant,
vs.
File No. 965952
WILBOS ENERGY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
NATIONAL UNION FIRE,
Insurance Carrier,
Defendants.
------------------------------------------------------------
1402.40 1803 1803.1 3700
AMA Guides held to be an imperfect tool for measuring loss
of use under scheduled injury sections. It was held to be
uniform but necessarily arbitrary in order to provide
uniformity. In a case where ratings were given ranging from
6 percent to 35, 35 percent permanent partial disability of
the foot was awarded. The permanent partial disability was
determined based upon claimant's loss of ability to use his
foot for the things for which people customarily use their
feet.
1100; 1108; 1805, 2600
Filed December 16, 1992
BYRON K. ORTON
BJO
before the iowa industrial commissioner
____________________________________________________________
:
TERESA A. BREEDEN, Surviving :
Spouse of DANIEL K. BREEDEN, :
:
Claimant, :
:
vs. :
: File No. 966020
FIRESTONE TIRE AND RUBBER :
COMPANY, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
CIGNA INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1100
Found Mr. Breeden's (deceased) injury arose out of and in the
course of his employment on October 1, 1990.
1108
Found Mr. Breeden's C-7 disc-nerve compression, caused by an
October 1, 1990 work injury, as the primary reason for and cause
of his October 31, 1990 surgery and cause of death on the
operating table on October 31, 1990.
Found that Mr. Breeden's C-3 benign tumor found as a result of an
MRI done to further analyze his C-7 disc problem, was not the
primary cause of his surgery or his death on the operating table
on October 31, 1990. The doctor decided to do both operations on
same day, one after the other. The C-7 was done first and the
C-3 last.
2600
Found that a pathologist who never has treated disc problems, nor
treated patients, nor perform surgery, nor talked to claimant or
the neurologist, was not competent to challenge and override a
neurosurgeon and second guess his opinion as to the cause of Mr.
Breeden's symptoms, reason for surgery and ultimate cause of
death under circumstance of the case.
1805
Found that although actual cause of death was not specifically
known even after an autopsy was done, the fact that the work
injury caused Mr. Breeden to have the surgery and claimant's
unfortunate death results in the defendants being liable for the
results of the surgery and Mr. Breeden's death.
This action was brought by Teresa Breeden, surviving spouse of
Daniel Breeden.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
TERESA A. BREEDEN, Surviving :
Spouse of DANIEL K. BREEDEN, :
:
Claimant, :
:
vs. :
: File No. 966020
FIRESTONE TIRE AND RUBBER :
COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CIGNA INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on February 11, 1992, at
Des Moines, Iowa. This is a proceeding in arbitration
wherein claimant seeks compensation for decedent's alleged
injury that occurred on or around September 30 or October 1,
1990, and in which claimant contends that this injury
ultimately resulted in the death her husband, Daniel
Breeden.
The record in the proceeding consists of the testimony
of Teresa Breeden, surviving spouse of Daniel Breeden;
Steven Kinnard; Scott Erwood, M.D.; Robert Snyder; and James
Allpress; claimant's exhibits A through T; and defendants'
exhibits A, B, C, E, F, G and H.
issues
The issues for resolution are:
1. Whether decedent's alleged injury and ultimate
death arose out of and in the course of his employment on or
around September 30 or October 1, 1990;
2. Whether decedent's death is causally connected to
an alleged injury that occurred on or around September 30 or
October 1, 1990; and,
3. Claimant's entitlement, if any, to benefits under
the Iowa Workers' Compensation Law.
findings of fact
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Page 2
Daniel Breeden, the alleged injured worker, died on
October 31, 1990, and Teresa, his surviving spouse, is the
claimant herein. She testified decedent was physically fit
prior to September 30, 1990. She said he coached Little
League and played softball. She acknowledged her husband
cut wood the Saturday (September 29, 1990) before his
alleged injury on Sunday-Monday, September 30 or October 1,
1990, during an outing with his two sons. She said her
husband did not complain of an injury or a physical problem
when he returned from this outing. She related Mr. Breeden
would cut wood once a week in the fall of the year.
She testified as to her husband's activity on Sunday
(September 30, 1990) prior to going to work at 10:00 p.m.
for the 11:00 p.m. Sunday to 7:00 a.m. Monday shift. She
said Mr. Breeden did not complain of any problems before he
left for work at 10:00 p.m. Mrs. Breeden related that when
she returned home from her job at 1:00 p.m. on October 1,
1990, her husband was up and complained that his back and
arm hurt. She said finding her husband up at that time of
day was unusual because he normally would be sleeping
because of his evening shift. Mrs. Breeden said her husband
said something about holding a ring at work. That didn't
mean so much to her at the time as she was not that familiar
with the nature of his work. She emphasized her husband was
not a complainer. Mrs. Breeden reviewed claimant's exhibit
N and acknowledged that that was her husband's handwriting
and it was basically the same information her husband had
orally told her.
Steven Kinnard testified that he works at Firestone and
knew the decedent, Mr. Breeden. He was Mr. Breeden's
supervisor as of September 1990. He said Mr. Breeden did
not report an injury to him that last night, but did not
come to work the next day. He said Mr. Breeden called the
next day and said when he woke up he couldn't move his arm
and at that time did not know what caused it. He said Mr.
Breeden indicated he possibly slept on it wrong and didn't
think it was serious. He said Mr. Breeden called one or two
days later and told him the problem involved a disc and was
work related.
James Allpress, safety engineer for defendant employer,
briefly testified.
Roger Snyder testified he has worked for defendant
employer for seven years, mostly as a tire builder and some
as a temporary supervisor. He was a partner with Mr.
Breeden in the tire room, working with a two-man tire
machine, ZQE7. Mr. Breeden was the outside man and Mr.
Snyder was the inside worker with this machine. He said Mr.
Breeden would put the stock on the table and lift the rings
to him to put into the tire drum. He said the rings at that
time weighed around 50 pounds and the outside lock ring
weighed about 58 pounds. There were 14 rings per drum. Mr.
Snyder trained the decedent and approximately five tires
would be built in an eight hour period.
Mr. Snyder remembered Mr. Breeden telling him his arm
was numb and he had trouble putting in the last ring that
Page 3
shift of September 30-October 1, 1990. He said the
employees were complaining about the weight of these rings
and they are now using 40 pound rings. Mr. Snyder indicated
that he also had complained to the employer about the weight
of these rings and that he might have to go on light duty if
they didn't do something about them and their weight. Mr.
Snyder did not specifically see anything happen to the
decedent on that particular shift. He said the decedent was
not a complainer and he came to work and did his job.
Scott Erwood, M.D., a neurologist, testified in person
that he first saw Mr. Breeden on October 5, 1990, pursuant
to a referral from Kenneth Andersen, M.D. Mr. Breeden was
complaining of right upper extremity and right arm pain. He
said the history taken from Mr. Breeden is consistent with a
disc injury.
An MRI was taken and the doctor said this showed a
right C-7 radiculopathy (pinched nerve) and a disc problem.
Also, it surprisingly showed a mass on the right side C-3,
approximately 1 centimeter in size going into the spinal
cord. He said Mr. Breeden's complaints were consistent with
a disc herniation. He emphasized the MRI could not
neurologically show the cause of Mr. Breeden's problem any
better in order for him to analyze the situation.
Dr. Erwood said the MRI surprised him in that it showed
the C-3 tumor as they were not expecting that. He
emphasized Mr. Breeden had no symptoms from this tumor and
related those symptoms decedent would have if the tumor was
causing problems. He said if an MRI had not been done, a C-
3 tumor would not have been discovered. Dr. Erwood said the
C-7 problem has a different pattern and affects different
parts of the body than a C-3 root problem. Dr. Erwood said
that decedent's pain and symptoms were very inconsistent
with a C-3 problem.
Dr. Erwood said it was obvious the tumor had to come
out but thought he would wait for two weeks to see if
decedent's C-7 disc problems would get better and, if not,
he would perform disc surgery on decedent.
The doctor was extensively questioned as to whether he
was treating Mr. Breeden for disc problem or tumor and
whether surgery was mainly for the tumor and not the disc.
The doctor was emphatic that he was treating decedent for a
herniated disc. He did not give decedent pre-surgery tumor
treatment.
Dr. Erwood said he concluded that if he was going to do
the C-7 surgery, he would do the C-3 tumor removal at the
same time. He emphasized that this would then result in
decedent having one operation, one recovery, one
hospitalization and would get Mr. Breeden back to work
sooner. It was obvious that doing both at the same time
would prolong the surgery. Although Dr. Erwood said that a
more lengthy surgery does not necessarily increase the risk,
as he has done several operations that were very lengthy, it
is obvious that the longer someone is on an operating table
the greater the risk is that something could go wrong.
Page 4
Dr. Erwood acknowledged that when he saw Mr. Breeden on
October 22, Mr. Breeden's pain was better with the therapy
and that Mr. Breeden had been off work and inactive, but Mr.
Breeden still had a weakness of his right triceps which is a
C-7 problem. He emphasized this weakness isn't a C-3
problem and physical therapy does nothing for a C-3 tumor.
Mr. Breeden had his surgery on October 31, 1990. Dr.
Erwood did the C-7 surgery first and explained the
procedure. He related that if he were to do the C-7 surgery
only, he would have proceeded from the front or the anterior
side of the neck as it is easier and there would be less
interference than from the rear or posterior side. He
emphasized he could not do the C-3 tumor from the front but
only from the rear.
Dr. Erwood found no free disc material or freely
herniated disc fragment but found a tight nerve which he
freed by removing bone and the pressure was alleviated. He
said his C-7 surgery supported his neurological exam and
that you don't always find a herniated disc.
After approximately one and one-half hours on the C-7
surgery, the doctor continued with his surgery on Mr.
Breeden's C-3 tumor under a microscope. It was benign and
the doctor again said it wasn't causing any of Mr. Breeden's
problems. Dr. Erwood said that at the end of the surgery
and after the tumor was removed and he was doing some final
measures, Mr. Breeden's blood pressure became abnormal and
after one plus hours of CPR, Mr. Breeden died on the
operating table. The doctor said he didn't know what caused
the death specifically (Cl. Ex. J, p. 42).
Dr. Erwood acknowledged that he read the deposition of
Alexander Ervanian, M.D., pathologist, and he doesn't
believe a pathologist can competently judge a neurologist's
work. He said it would be best if a neurologist would be
the reviewer. He emphasized pathologists are not qualified
to give neurological opinions. He indicated a pathologist
never does disc surgery or tumor removal. He indicated a
pathologist takes the tissue, blood sample, etc., and makes
a judgement and analysis. Dr. Erwood strongly disagreed
with the pathologist's statement that the main reason for
Mr. Breeden's surgery was tumor removal. Dr. Erwood
emphasized again the main reason was the C-7 herniated disc
even though the tumor had to be removed.
Dr. Erwood again expressed his opinion that it is not
necessary to have a piece of disc material to have a
herniated disc. He said Mr. Breeden's nerve was tight and
compressed and if he didn't release it, Mr. Breeden would
have had a permanent problem.
Dr. Erwood disagreed with the comments of Dr. Ervanian
that (1) Mr. Breeden's neck and finger problems were caused
by C-3 not C-7, and (2) Mr. Breeden's death was not related
to his injury.
Dr. Erwood agreed that if an MRI shows a piece of disc
Page 5
out of place, it is not conclusive. He said oftentimes what
you see is not what you find. He said from the posterior
vantage point, he could not see a herniated disc but that
doesn't mean there wasn't one. The C-7 nerve root was
amputated. Dr. Erwood indicated that when he used the word
amputation, it is the same as a pinched nerve in Mr.
Breeden's situation.
There was testimony from Dr. Ervanian which seemed to
indicate amputation would mean a nerve that was cut. It is
obvious a nerve was not cut and it is obvious we are playing
a game of semantics. We see this often in medical reports
where several words are misinterpreted. It is obvious to
the undersigned that the nerve was not amputated and that it
was more a pinched or impingement situation. It is also
obvious that possibly the doctor could have used a better
choice of words. Dr. Erwood agreed that a herniated disc
can be caused by rather minimal activity and often the
patient has no idea of what he did to cause it. Dr. Erwood
said the death certificate (Cl. Ex. J42) really indicated
the cause of death was unknown. He said there may have been
a coronary embolism (air-blood clot) but the autopsy showed
no pulmonary embolism. Dr. Erwood did not know whether
death would have occurred if surgery had ended earlier. Dr.
Erwood, though appearing reluctant to so state because he
hadn't give that much thought to it, did indicate that if
there was a residual symptom from Mr. Breeden's C-7 nerve
root surgery, Dr. Erwood would have most likely opined a 10
or 11 percent permanent impairment to Mr. Breeden's body as
a whole.
The doctor emphasized that as far as he was concerned,
he was treating a work injury and combined two surgeries for
a more efficient purpose and procedure.
Alexander Ervanian, M.D., the medical director of
laboratories and director of nuclear medicine at Iowa
Methodist Hospital, testified through his deposition on
January 13, 1992 (Def. Ex. E) and his deposition on December
23, 1991 (Cl. Ex. S). The doctor practices exclusively in
pathology and nuclear medicine. He indicated his main work
is assisting in diagnosis. He never sees the whole patient
(Def. Ex. E, p. 7). He does not treat herniated discs. He
also reads and interprets medical data as reflected in
records of a doctor or hospital (Jt. Ex. E, p. 13). He has
never treated a herniated disc, has never treated a tumor
nor performed surgery in either of these types of instances
(Def. Ex. E, pp. 27 and 28). He has never seen Mr. Breeden
as a patient, never talked to Dr. Erwood about this case,
and has never treated a work-related injury. Dr. Ervanian
acknowledged he had all the hospital records of Mr. Breeden,
particularly regarding his last hospitalization.
Defendants' attorney proposed in a hypothetical
question that attempted to substantially summarize the
medical situation from October 1 to decedent's death (Def.
Ex. E, p. 18-26). The doctor opined that the primary
purpose of Mr. Breeden's surgery was to remove the cervical
cord tumor (Def. Ex. E, p. 30). Dr. Ervanian said "that is
what Dr. Erwood believed and operated for." (Def. Ex. E, p.
Page 6
30) The undersigned is perplexed as to how Dr. Ervanian
believed Dr. Erwood believed this when he said he never
talked to him and it is completely contrary to Dr. Erwood's
testimony and medical records.
Dr. Ervanian said if there was a herniated disc, he
would expect the operative report of October 31, 1990 to
reflect fragments in the pathology report if there was a
removal of a disc herniated at C-7 and 6 (Def. Ex. E, p.
34). Contrary to what Dr. Erwood, the neurologist, said,
Dr. Ervanian said that symptoms of pain in the upper neck,
back and shoulder are consistent with C-3 tumor (Def. Ex. E,
p. 35).
Dr. Ervanian could not opine a cause of Mr. Breeden's
death on October 31, 1990 (Def. Ex. E, p. 36), but he did
opine that Mr. Breeden's death was not related to work.
There were objections to this doctor answering questions in
this area as to his competency. The undersigned believes
those objections based on this record are valid. This will
be covered in more detail later. Dr. Ervanian first
received information in this case in July 1991 (Jt. Ex. E,
p. 40). Defendants' attorney is the only person Dr.
Ervanian talked to prior to his first deposition. Dr.
Ervanian was given claimant's exhibit A, a November 20, 1990
letter from Dr. Erwood to look at and he indicated he has
never seen that letter before and that defendants' attorney
never gave him a copy (Def. Ex. E, p. 44).
Dr. Ervanian agreed Dr. Erwood is in a better position
to state what the primary purpose was in performing Mr.
Breeden's surgery (Def. Ex. E, p. 45). Dr. Ervanian was
asked several questions on cross-examination as to certain
body functions and their cause emanating from a C-3 or C-6,7
area. He was referred to his answer to the same or similar
questions in his December 23, 1991 deposition (Cl. Ex. S).
It is obvious to the undersigned that Dr. Ervanian's
competency and expertise may be in pathology but is not in
neurology.
Upon questioning again, Dr. Ervanian believed if one
has a herniated disc, surgery to correct the same will
require removal of disc material, pulposus, or bone (Def.
Ex. E, p. 67). The doctor did say that if the symptoms
decedent was reporting were due to a herniated disc, then
that would be the primary purpose of the surgery (Def. Ex.
E, p. 69). It appears Dr. Ervanian is further supporting
his prior conclusions because Mr. Breeden died at a point of
time after the C-3 tumor surgery and that if the C-7 surgery
was the last surgery on October 31, 1990, he would say that
Mr. Breeden's major problems then resulted from that surgery
(Jt. Ex. E, p. 72).
It seems to the undersigned that not having treated
patients and, in particular neurological problems, leaves
Dr. Ervanian in a guessing or speculative posture. The
undersigned questions how Dr. Ervanian can opine, as a
pathologist, within reasonable medical certainty what effect
a C-3 tumor was having on decedent so as to contradict a
neurologist specializing in the area and who treated Mr.
Page 7
Breeden and actually did the surgery. This is beyond the
undersigned's imagination with the facts we have in this
case at bar.
It seems that defendants are also relying on why Dr.
Erwood performed the October 31 surgery by seeing what stage
of the surgery was done first and which one was done last.
It seems the October 23, 1990 and October 8, 1990 letters
have this information in reverse order (Cl. Ex. C).
The undersigned does not believe this has any bearing
on why Mr. Breeden primarily had his surgery. The record is
clear enough to the undersigned without needing that to
confuse the issue. The undersigned sees no importance as to
Dr. Erwood putting in a particular paragraph in reference to
one surgery first versus the other. His testimony seems
clear on this point. The undersigned believes the October
8, 1990 letter, last large paragraph, sets out Dr. Erwood's
real beliefs and judgment and primary reason for Mr.
Breeden's hospitalization and surgery and that he didn't
change his opinion subsequently contrary to what Dr.
Ervanian is trying to guess or believe all with the benefit
of hindsight and also having in mind the existing litigation
posture and his client's position.
Ronald Charles Evans, D.C., testified through his
deposition (Def. Ex. C) on February 3, 1992, and stated that
he frequently and commonly sees patients that complain of
back, neck, leg and arm complaints and those who have work
injuries in his chiropractic practice. He also indicated it
is common to see these complaints from people who do not
have any indication of trauma or injury. Dr. Evans first
treated decedent on May 31, 1988, through a medical referral
from Firestone Tire & Rubber Company, as Mr. Breeden was
having low back complaints. He related some of the history
Mr. Breeden gave him and described the treatment and release
of the decedent on June 8, 1988. Mr. Breeden returned to
Dr. Evans again on November 15, 1988, with a low back
complaint. The doctor said Mr. Breeden indicated to the
doctor that he slipped on some oil at Firestone but did not
fall (Def. Ex. C, p. 14). The doctor described the
treatment he prescribed for Mr. Breeden which included
ultrasound to his low back, muscle stimulation and
manipulation, etc. This treatment lasted through November
18, 1988.
Dr. Evans saw Mr. Breeden again on April 15, 1990, for
low back pain (Def. Ex. C, p. 16). He did not see Mr.
Breeden after August 16, 1990, until October 2, 1990, at
which time Mr. Breeden complained of right-sided neck, arm
and shoulder problems. He described the history Mr. Breeden
gave him and his notes indicate Mr. Breeden cut wood eight
hours Sunday night and felt okay but felt worse by Monday
noon. Mr. Breeden indicated to Dr. Evans that his back and
arm were sore. He said Mr. Breeden related nothing as to
anything happening at work. He said his findings supported
a diagnosis of C5-6 nerve root compression right side
(pinched nerve). He opined Mr. Breeden's condition resulted
from him cutting wood at home (Def. Ex. C, p. 21). The
doctor based this on the history Mr. Breeden gave him.
Page 8
Dr. Evans described Mr. Breeden's acute severe
condition regarding his neck and right arm and the diagnosis
and plan of treatment he had for Mr. Breeden (Def. Ex. C, p.
26).
Dr. Evans said his notes and treatment do not reflect
Mr. Breeden relating his problem to work and he believed Mr.
Breeden would have mentioned a work injury if he was injured
at work. He said he specifically would have asked Mr.
Breeden this question in his history taking, in other words,
if Mr. Breeden had injured himself at work (Def. Ex. C, pp.
29-30). Dr. Evans believes Mr. Breeden would have told him
if he had a work injury. Dr. Evans agreed that from Mr.
Breeden's exam, he indicated to the doctor his pain first
surfaced following his nap, Monday noon (Def. Ex. C, p. 33).
It appears clear from Dr. Evans that Mr. Breeden's
positive symptoms showed nerve compression at C5-6 and no
signs or symptoms relating to C3. Dr. Evans seems to agree
with Dr. Erwood as to the symptoms that come from C-3 versus
the C-6 area (Deft. Ex. C, pp. 38-39).
Although Dr. Evans testified that there can be delayed
symptoms after an event or trauma, it is obvious the
sequence of events happening, in other words, wood chopping
- no symptoms and then working - some symptoms showing,
would indicate that if an injury occurred at work on
Sunday-Monday, that might be more likely the cause of Mr.
Breeden's symptoms (Def. Ex. C, pp. 33-37). The doctor
shows only the wood chopping notwithstanding that Mr.
Breeden already saw a Dr. Anderson and indicated to him a
work injury (Def. Ex. C, p. 36). The doctor indicated that
with the knowledge of the work incident on September 30-
October 1, 1990, a lifting and slipping incident and given
the time lapse from chopping wood, Dr. Evans indicated he
would alter his opinion and the work incident would the most
proximate cause (Def. Ex. C, p. 45). He indicated that
chopping wood would result in more of a muscular strain or
tendon injury whereas a slip-lift injury is more associated
with a ligament injury. In other words, a compression of
the C6 nerve root (Def. Ex. C, pp. 44 and 46).
Dr. Evans said that if later exams shows a tumor at C-
3, he would be surprised as that would show central nervous
system signs like wasting away of muscles, inability to
walk, drunken sort of gait, etc. (Def. Ex. C, p. 39). Dr.
Evans indicated that when he saw Mr. Breeden on October 2,
1990, the nature of Mr. Breeden's nerve root compression was
severe enough that he already believed his disc problems was
not going to resolve itself without surgery (Def. Ex. C, p.
46). In fact, Dr. Evans was already thinking of referring
Mr. Breeden to a neurosurgeon (Def. Ex. C, p. 36).
It appears that notwithstanding what history Dr. Evans
originally took, he realized he is only human and may not
have taken down everything pertinent. He also indicated
that patients are not perfect and memories are not always
good and that he did not have a complete history, therefore,
supplementation of his history with other doctor reports,
Page 9
obviously affected any prior opinion he rendered (Def. Ex.
C, p. 55).
There was considerable back and forth questions of Dr.
Evans by both parties' attorneys. It appears obvious to the
undersigned that taking all the testimony as a whole, Dr.
Evans finds Mr. Breeden's work injury was the primary cause
of Mr. Breeden's C6-7 problem and not the wood chopping
incident (Def. Ex. C, pp. 58-74).
Dr. Evans opined the cause of death was from tumor
surgery because it was the last part of the surgery and the
longest of the surgeries. When given a hypothetical
question which the undersigned believes more accurately sets
out the competent and logical facts, Dr. Evans reverses his
opinion or agrees then that the operation was due to a work-
related injury (Cl. Ex. S, pp. 62-63).
The undersigned is not going into detail or make
additional specific reference, unless necessary, as to many
of the exhibits and reports as the doctors' testimony in
court or the depositions made reference to those documents
and were referred to in the respective testimony or
depositions.
The undersigned would be remiss if he did not mention
that there was a considerable amount of duplication and
unnecessary exhibits in this case. At the time of the
hearing, the undersigned asked the parties if there was
duplication and after eliminating a duplicate medical
deposition, the parties indicated that there was no other
duplication with rare possible exceptions. The undersigned
noted considerable duplication, such as the forensic
pathology reports, certain doctor reports, several organ
donation requests and MRI requests, etc. The undersigned
has a hard time believing what importance organ donation re
quests, the wage records and most of the decedent's
personnel records had on this case since there are no issues
which those addressed. Both parties still entered identical
records into evidence through their exhibits in addition to
the same party offering duplicate exhibits into the record.
The undersigned believes that the greater weight of
evidence indicates that decedent did, in fact, incur an
injury that arose out of and in the course of his employment
on or around October 1, 1990. Confusion as to whether it
was September 30 or October 1 is strictly because decedent's
shift covered parts of both days. It appears to the
undersigned that the symptoms began to fully develop near
the end of Mr. Breeden's work shift on October 1, 1990.
Defendants seem to imply that it was the wood chopping that
initially caused Mr. Breeden's problems. The record is
clear to the undersigned and the greater weight of evidence
indicates that there was no residual effect from the wood
chopping and if there was, there was no effect or
consequences to Mr. Breeden's working when he began his
shift at around 11:00 p.m. Sunday, September 30, 1990. As
Dr. Evans indicated on more than one occasion, the chopping
of the wood would at most bring about from the facts as he
Page 10
knew them, a muscle strain and not a ligament injury. It is
obvious Dr. Evans felt that Mr. Breeden had, after knowing
all the history and medical information, a ligament injury
which would be caused by a sudden lifting or slipping
incident.
The undersigned finds that decedent did incur a work
injury on October 1, 1990, while working at defendant
employer and that this work injury arose out of and in the
course of decedent's employment.
There is considerable medical evidence as to the need
for surgery that decedent had on October 31, 1990.
Defendants contend that notwithstanding whether decedent
incurred a work injury which injury they also denied, the
surgery was not for a herniated disc but was to remove a
tumor at C3.
Mr. Breeden sought medical treatment immediately
thereafter within a few days of October 1, 1990, for a
herniated disc condition and this condition was verified by
Dr. Erwood ordering an MRI. Dr. Evans also suspected a
herniated disc problem and he was ready to work up a
neurological referral report but instead Mr. Breeden went to
his own neurologist, Dr. Erwood (Def. Ex. C. pp. 36-37).
There is no dispute that the MRI was done because of
Dr. Erwood suspecting a herniated disc and he emphasized Mr.
Breeden's symptoms supported this suspicion. Dr. Erwood's
suspicions were sustained but he also discovered a mass
tumor at C-3. There is no evidence that the tumor was being
treated before the discovery or up until the surgery on
October 31, 1990. Defendants contend that the October 31,
1990 surgery was mainly to remove the tumor and the disc was
secondary. As we know, hindsight or second guessing is
always better and more accurate than facing the sometimes
unknown that exists even today notwithstanding the marvels
of sophisticated equipment and well trained medical
specialists. This agency often sees medical specialists in
the same specialty taking totally opposite positions with
the same set of facts.
Dr. Erwood, the neurologist, emphatically stated that
Mr. Breeden's symptoms resulted from a disc problem and not
a tumor problem even though he agrees once the tumor was
found, it had to be removed. There is no other neurologist
who disputes Dr. Erwood. It would seem logical that
defendants would have hired a specialist in neurology if
they wanted to challenge or second guess the treating
neurologist and surgeon who had hands-on contact with the
Mr. Breeden's condition. Defendants hired a pathologist,
who they have hired several times in the past, to look at
this case and judge the conduct of Dr. Erwood.
It is apparent on the record that Dr. Ervanian had a
long time relationship with defendants' attorney and its law
firm as far as testifying in workers' compensation cases.
With the facts of this case, the death certificate and
autopsy basically leaving the specific cause of death
unknown and subject to conjecture, it is not surprising that
Page 11
Dr. Ervanian took an opposite position than Dr. Erwood.
Claimant's attorney objected to the competency of the
pathologist who judged the conduct of a neurologist. It is
undisputed that Dr. Ervanian agreed a neurologist is better
situated to make judgment as to decedent's situation than he
is as a pathologist. Dr. Ervanian testified he has never
treated a neurological problem, never has done any surgery
and is no different than any pathologist. It is obvious
that these things are out of his field. The undersigned
believes that Dr. Ervanian, a pathologist, is not competent
to judge Dr. Erwood, a neurologist and surgeon, even though
both are doctors.
This agency's experience has been that even within a
specialty there are specialties. You can have a
gastroentologist that only diagnoses but does not do the
surgery. You can have an orthopedist who will do only the
back and not knees, etc. You would not have an orthopedist
judge an oncologist. It is obvious that Dr. Ervanian knew
the direction that his client would like this case to go.
Dr. Ervanian further admitted his lack of neurological
expertise and this is exhibited in his answers to questions
concerning C-3 symptoms and yet he is trying to contradict
or disagree with a neurologist on a very key item. Dr.
Ervanian admitted that Dr. Erwood is in a better position to
determine this question (Cl. Ex. S, p. 19). The doctor
again by his answers realizes that the question as to Mr.
Breeden's surgery should be answered by a neurosurgeon (Cl.
Ex. S, p. 55).
Having one specialist in a different field trying to
impeach or challenge a judgment of another specialist on the
facts of this case would be similar if one would have a
lawyer who works as a probate-nonlitigation specialist judge
the conduct of another lawyer who is a personal injury
litigation specialist.
Dr. Erwood decided to do both of these surgeries on the
same day. This seemed logical as he thought it would be
best for Mr. Breeden's benefit so as to save Mr. Breeden
from two separate surgeries, two anesthetics, two recovery
periods, two loss times from work, etc. If Dr. Erwood had
not done both of these surgeries the same day, he would most
likely have been criticized.
The undersigned believes that taking all the evidence
as a whole, and considering the times certain judgment calls
were made, that Mr. Breeden needed C-7 neck surgery and that
this was the primary reason for decedent's surgery on
October 31, 1990, and the undersigned so finds. It is
immaterial which surgery took longer or which was first and
which was last. This again was a judgment call and
hindsight is always better than foresight. It is true that
the longer one is under anesthetic or the more surgeries,
the greater the risk but two separate surgeries and two
separate anesthetics also carry risks. Anything can go
wrong when surgery is performed.
The fact that a disc fragment was not found is not per
Page 12
se indicative that decedent did not have a disc problem as
Dr. Erwood emphasized. It appears that he decompressed a
nerve and that alone was worth surgery at C-7. It is also
obvious that because Dr. Erwood decided that both surgeries
would be done the same day, the necessity of going from the
rear instead of the front made the C-7 more difficult. It
would appear that if he was going to do these surgeries
separately, he would do the C-7 from the front, but would
have to do the C-3 from the posterior. It would not take
much intelligence to realize the criticism Dr. Erwood would
have if he planned these two separate surgeries going from
the front on the one and the rear on the other. Again, the
undersigned is surprised by the fact that if Dr. Erwood's
judgement and procedures were going to be challenged, that
it wouldn't be another neurological surgeon. The fact Dr.
Ervanian is a long-time acquaintance and workers'
compensation testifier for defendants' attorney helps
explain a pathologist challenging a neurologist. The
undersigned is not impressed and agrees with the claimant's
contention that Dr. Ervanian is not competent on the key
issues herein to challenge a neurologist.
The undersigned finds that decedent's primary reason
for surgery was because of the herniated disc which
ultimately ended up a nerve compression and that the C-7
problem was the primary cause of Mr. Breeden having the
surgery ultimately which resulted in Mr. Breeden dying
during the operating procedures.
The undersigned further finds that had it not been for
decedent's work injury which involved his C-7 cervical area
on October 31, 1990, decedent would not have had an MRI that
was done to further clarify decedent's C-7 area problem and
decedent would not have had surgery at all, particularly on
October 31, 1990, and that had it not been for the MRI which
was brought about by the October 31, 1990 work injury, a
tumor would not have been discovered at C-3.
The undersigned further finds that had the MRI not been
done which was because of the October 31, 1990 injury there
would not have been tumor surgery performed on October 31,
1990.
The undersigned further finds that decedent's C-3 tumor
was not symptomatic up to his October 31, 1990 surgery and
that decedent's time off from work from October 1, 1990
through October 31, 1990, was the result of his work injury
and C-7 disc compressed nerve problem.
Therefore, the undersigned finds that the cause of dece
dent's death on October 31, 1990, was because it ultimately
resulted from decedent's work injury on October 1, 1990 and
ultimate need for surgery to correct the work injury at C-7.
Decedent's reason for entering the hospital was primarily
for the events originating from decedent's October 1, 1990
work injury.
conclusions of law
An employee is entitled to compensation for any and all
Page 13
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).
The claimant has the burden of proving by a
preponderance of the evidence that claimant's decedent's
injury of October 1, 1990, is causally related to the
disability on which she now bases her claim. Bodish v.
Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl
v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A
possibility is insufficient; a probability is necessary.
Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691,
73 N.W.2d 732 (1955). The question of causal connection is
essentially within the domain of expert testimony. Bradshaw
v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167
(1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman v. Central Telephone
Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
Page 14
It is further concluded that:
Decedent incurred a disc and nerve compression injury
at C-7 on October 1, 1990, that arose out of and in the
course of decedent's employment causing him to be
hospitalized and have a C-7 surgery on October 31, 1990.
Decedent's October 1, 1990 work injury which required
hospitalization and surgery on October 31, 1990, ultimately
resulted in his death on October 31, 1990.
Decedent's C-3 tumor contributed to and complicated and
increased decedent's risk on October 31, 1990, but was
discovered sequelally to decedent's disc and compressed
nerve injury on October 1, 1990, and that this C-3 tumor
which was discovered as a result of an MRI performed because
of decedent's October 1, 1990 C-7 injury was not in and of
itself the cause of or the reason for decedent's October 31,
1990 surgery.
Decedent's death was caused by the surgical process
initiated primarily by his work injury on October 1, 1990.
A pathologist is not competent to override and
challenge the judgment and surgical procedure performed by a
qualified competent neurologist surgeon.
Claimant is entitled to the temporary total disability
benefits from October 1, 1990 through October 31, 1990, at
the weekly rate of $613.75.
Teresa Breeding is the surviving spouse of the
deceased, Daniel Breeden, and has not remarried.
Daniel Breeden, the deceased, left three dependent
children who were entirely dependent upon his earnings.
order
THEREFORE, it is ordered:
That claimant is entitled to four point two (4.2) weeks
of temporary total disability benefits at the rate of six
hundred thirteen and 75/100 dollars ($613.75) for the period
of October 1, 1990 through October 31, 1990.
That defendants shall pay to Teresa Breeden, surviving
spouse, six hundred thirteen and 75/100 dollars ($613.75)
per week for the remainder of her life or until she
remarries, provided that upon her remarriage two (2) years
of benefits will be paid to her in a lump sum if there are
no children entitled to benefits.
That defendants shall pay to the dependent children of
decedent Daniel Breeden if Teresa Breeden, the surviving
spouse, remarries, six hundred thirteen and 75/100 dollars
($613.75) per week until the children reach the age of 18
provided that a child beyond 18 years of age shall receive
benefits to the age of 25 if actually dependent, and the
fact that a child is under 25 years of age and enrolled as a
Page 15
full-time student in any accredited educational institution
shall be a prima facie showing of actual dependency, all as
provided under Iowa Code section 85.31.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid. The parties stipulated
that nine hundred eight and 57/100 dollars ($908.57) of sick
pay was paid by defendants.
That defendants shall pay four thousand dollars
($4,000) to the Second Injury Fund of Iowa, as provided by
Iowa Code section 86.64.
That defendants shall pay the burial expenses in the
amount of one thousand dollars ($1,000), as provided in Iowa
Code section 85.25.
That defendants shall pay any medical and hospital
bills incurred as a result of this injury and decedent's
death.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of February, 1992.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Roger J Hudson
Mr Steven H Shindler
Attorneys at Law
1000 Equitable Bldg
Des Moines IA 50309
Page 16
Mr Frank T Harrison
Attorney at Law
Terrace Ctr Ste 111
2700 Grand Ave
Des Moines IA 50312
Mr Alan Anderson
Attorney at Law
P O Box 245
Polk City IA 50226
1100; 1108; 1805, 2600
Filed February 27, 1992
Bernard J. O'Malley
before the iowa industrial commissioner
____________________________________________________________
:
TERESA A. BREEDEN, Surviving :
Spouse of DANIEL K. BREEDEN, :
:
Claimant, :
:
vs. :
: File No. 966020
FIRESTONE TIRE AND RUBBER :
COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CIGNA INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1100
Found Mr. Breeden's (deceased) injury arose out of and in
the course of his employment on October 1, 1990.
1108
Found Mr. Breeden's C-7 disc-nerve compression, caused by an
October 1, 1990 work injury, as the primary reason for and
cause of his October 31, 1990 surgery and cause of death on
the operating table on October 31, 1990.
Found that Mr. Breeden's C-3 benign tumor found as a result
of an MRI done to further analyze his C-7 disc problem, was
not the primary cause of his surgery or his death on the
operating table on October 31, 1990. The doctor decided to
do both operations on same day, one after the other. The
C-7 was done first and the C-3 last.
2600
Found that a pathologist who never has treated disc
problems, nor treated patients, nor perform surgery, nor
talked to claimant or the neurologist, was not competent to
challenge and override a neurosurgeon and second guess his
opinion as to the cause of Mr. Breeden's symptoms, reason
for surgery and ultimate cause of death under circumstance
of the case.
1805
Found that although actual cause of death was not
specifically known even after an autopsy was done, the fact
that the work injury caused Mr. Breeden to have the surgery
and claimant's unfortunate death results in the defendants
being liable for the results of the surgery and Mr.
Breeden's death.
This action was brought by Teresa Breeden, surviving spouse
of Daniel Breeden.
BEFORE THE IOWA INDUSTRIAL COMMISISONER
____________________________________________________________
:
PHILLIP RAY, :
:
Claimant, :
:
vs. :
: File No. 966038
CRANE VALVES, : 1016382
:
Employer, : A R B I T R A T I O N
:
and : D E C I S I O N
:
CIGNA PROPERTY AND CASUALTY :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by
claimant, Phillip Ray, against his former employer, Crane
Valves and its insurance carrier, Pacific Employers
Insurance. Mr. Ray seeks additional workers' compensation
benefits as a result of work-related injuries he sustained
on September 4, 1990 (agency file number 966038) and
February 19, 1992 (agency file number 1016382).
This matter came on for hearing on August 2, 1993 at
Oskaloosa, Iowa. The record in the case consists of
testimony from the claimant, Tresa Ray, claimant's wife,
Phyllis Scheeler, a nurse employed by Crane Valve, and
Brenda Perry, Human Resources Manager and Plant Comptroller
for Crane Valve; claimant's exhibits 50 and 51; and, joint
exhibits 1-7. The case was considered fully submitted at
the close of the hearing.
ISSUES
For file number 966038, the parties submitted the
following issues for resolution:
1. Whether claimant sustained a 10 percent loss of use
of his hand or a 9 percent loss of use of his upper
extremity due to the work injury of September 4, 1990; and,
2. Claimant's correct workers' compensation rate. The
parties were able to agree that at the time of this injury,
claimant was married and entitled to five exemptions.
For file number 1016382, the parties submitted the
following issues for resolution:
1. Whether claimant sustained a permanent disability
due to the work-related injury of February 19, 1992;
Page 2
2. Whether claimant is entitled to permanent partial
disability benefits due to the injury of February 19, 1992;
and,
3. Claimant's correct workers' compensation rate. The
parties were able to agree that at the time of this injury,
claimant was married and entitled to five exemptions.
FINDINGS OF FACT
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
Claimant, Phillip Ray was born on October 19, 1955, and
was 38 years of age at the time of the hearing.
Mr. Ray began working as a grinder for the defendant
employer in February of 1990. As a grinder, claimant's job
duties included working with numerous air tools (chisels and
sanders) to refine castings. These tools produced an
extensive amount of vibrations. The employer provided
gloves to claimant to help alleviate the vibrations.
On September 4, 1990, claimant was called upon to help
in a different department. He was to transfer molten metal
from the induction oven to a ladle. While performing his
duties, his left hand caught between the ladle and a
platform, and claimant sustained a crush injury to the left
hand (Joint Exhibit 4, page 1). He went to the company
nurse, and was sent to the Washington County Hospital,
Oskaloosa, Iowa. Due to the severity of the injury,
claimant was referred to a specialist at the University of
Iowa Hospitals and Clinics in Iowa City, Iowa. He was
treated by William Blair, M.D., and Kent Pearson, M.D., and
underwent surgery to repair a fractured left index finger
(Jt Ex. 1, pages 1-9). Subsequent follow-up visits to Dr.
Blair indicate that claimant was recovering well from the
injury and surgery, and it was recommended that he begin
physical therapy (Jt. Ex. 1, pp. 10-15). From October 8
through October 17, 1990, claimant underwent six therapy
sessions at the University of Iowa, and the record reveals
that he was compliant with all directions given to him (Jt.
Ex. 1, pp. 16-22). Claimant was then referred to the
physical therapy department at Washington County Hospital in
Oskaloosa, Iowa, and met with Pam Hazell on October 23,
1990. Ms. Hazell noted swelling and severe sensitivity in
the left index finger, and claimant continued both on-site
therapy sessions as well as a home exercise program (Jt. Ex.
1, pp. 24-29).
On November 26, 1990, claimant returned to Dr. Blair,
whose physical examination revealed less swelling and
limited range of motion in the left index finger. Dr. Blair
recommended additional physical therapy sessions and
continued use of a dynamic orthotic (Jt. Ex. 1, p. 31).
While additional notes from Dr. Blair indicate that
claimant had continued his therapy with Washington County
Hospital, the undersigned was unable to locate any notes
Page 3
from the physical therapist that chart claimant's progress
after November 16, 1990. In any event, Dr. Blair's
management of claimant's condition continued until February
11, 1991. At that time, he was released, and instructed to
return to the clinic on an as-needed basis (Jt. Ex. 1, pp.
30-36).
On February 28, 1991, Dr. Blair provided the claimant
with discharge instructions, and recommended that he return
to work on March 2, 1991, and perform only partial duty
until March 9, 1991 (Jt. Ex. 1, p 38). Additionally, Dr.
Blair provided the defendant insurance carrier with a report
which delineated claimant's permanent functional impairment.
Using the AMA Guides to the Evaluation of Permanent
Impairment, he believed claimant had sustained a 50 percent
impairment to the "right (sic) index finger. This is based
upon his loss of active motion. This 50% impairment is
equivalent to a 10% impairment of his left hand, which is
equivalent to a 9% impairment of the left upper extremity.
The loss of motion is permanent, and we anticipate no
additional surgical treatment for this condition." (Jt. Ex.
1, pp. 37) Essentially the same report was provided to
claimant's counsel on July 6, 1992 (Jt. Ex. 1, p. 46).
During the next several months, claimant was assigned
to several positions with the company, including lead man
in the grinding room, which involved supervision and some
grinding detail; a position as painter, which required him
to use an electric gun to paint various parts; and, his
prior job duties as a grinder.
Once claimant returned to his regular, full-time
position as a grinder, he began to experience pain and
numbness in both hands. He complained to his supervisor,
Mr. Roberts, and was sent to the company nurse. Ms.
Scheeler has no recollection of this visit, but according to
claimant, a report and medical record notations dated
February 21, 1992, claimant was sent to Pe-Hsun Tung, M.D.,
due to his complaints of tingling and soreness in both arms
(Jt. Ex. 2, p. 2). See also, an accident report dated
February 19, 1992 (Jt. Ex. 4, pp. 1-2). After an
examination which revealed positive Phalen's and Tinel's
tests bilaterally, claimant was scheduled for an EMG, which
indicated that claimant had a mild degree of carpal tunnel
in both wrists (Jt. Ex. 2, pp. 1-3).
Dr. Tung performed carpal tunnel release surgery on the
right wrist on April 16, 1992 (Jt. Ex. 7, pp. 1-3) and on
the left wrist on May 28, 1992. He provided follow-up care
until August 20, 1992 when he released claimant to return to
work, and rendered an opinion regarding any permanent
impairment caused by claimant's condition and the surgeries
(Jt. Ex. 2, pp. 4-10). Dr. Tung examined claimant, and
using the AMA Guide to the Evaluation of Permanent
Impairment, did not assign any permanent impairment (Jt. Ex.
2, p. 11).
In August of 1992, claimant sought from Dr. Blair a
second opinion addressing possible permanent impairment due
to the carpal tunnel syndrome and releases. A physical
Page 4
examination revealed that claimant had full active and
passive range of motion of all digits except the left index
finger. Tinel's and Phalen's tests were negative, as were
hyperflexion tests. Dr. Blair, observing that claimant
displayed some loss of grip strength, and presented with
persistent symptoms such as fatigue, assigned a two percent
impairment to the right hand and three percent impairment to
the left hand. He converted both ratings to the upper
extremities, which are equivalent to two percent and three
percent to the right and left extremities, respectively (Jt.
Ex. 1, pp. 49-50).
Claimant's personnel file is also a portion of the
evidence (Jt. Ex. 6).
Finally, the parties submitted various figures in order
to determine claimant's workers' compensation rate.
Claimant argues that for the September 4, 1990 injury,
his workers' compensation rate is $269.24 per week based on
gross weekly earnings of $5,259.52 and the applicable
exemptions. (Claimant's exhibit 50). Defendants argue that
claimant's rate is $265.80 based on gross weekly earnings of
$4,750.33 and the applicable exemptions.
For the February 19, 1992 injury, claimant believes his
rate is $260.45 per week based on gross weekly earnings of
$5,034.29 and the applicable exemptions; defendants believe
claimant's rate is $248.00 based on gross weekly earnings of
$4,750.33. Defendants paid weekly benefits at $294.42 or
$248.00 per week for this injury.
Claimant testified that he worked overtime hours on
occasion. Some of the hours were mandatory, and some of the
hours worked were worked on a voluntary basis. The
voluntary hours were offered to any employee who was able to
perform the specific job duties needed.
The employer periodically laid off employees, and
claimant testified that he voluntarily quit his job in
April of 1992, after being subjected to another in a series
of lay-offs.
Currently, claimant is self-employed as a truck driver.
ANALYSIS AND CONCLUSIONS OF LAW
AGENCY FILE NUMBER 966038
The first issue to be addressed is whether claimant has
sustained a 10 percent impairment to his hand, or whether
claimant sustained a 9 percent impairment to his left upper
extremity.
Iowa Code section 85.34(2) states, in pertinent part:
Permanent partial disabilities. Compensation
for permanent partial disability shall begin at
the termination of the healing period provided in
subsection 1 of this section....For all cases of
Page 5
permanent partial disability compensation shall be
paid as follows:
....
b. For the loss of a first finger, commonly
called the index finger, weekly compensation
during thirty-five weeks.
....
l. For the loss of a hand, weekly compensation
during one hundred ninety weeks.
m. The loss of two-thirds of that part of an
arm between the shoulder joint and the elbow joint
shall equal the loss of an arm and the
compensation therefor shall be weekly compensation
during two hundred fifty weeks.
There is no evidence in the record which even remotely
suggests that claimant has sustained a permanent impairment
to his left upper extremity due to the crush injury he
sustained on September 4, 1990. While it is noted that Dr.
Blair provided ratings addressing the loss to the index
finger, and then converted the rating to both the hand and
upper extremity, his examinations and notes indicate that
claimant has sustained a loss of range of motion of the left
index finger. Claimant testified that the only residual
problem he has due to the crush injury is an inability to
fully bend his finger. There is no evidence that his
impairment invades the hand or the upper extremity. As the
agency has stated many times, it is the anatomical situs of
the impairment which determines whether the schedules in
section 85.34(2)(a)-(t) are used. There is no doubt that
the schedules do apply, and that claimant permanent
impairment is to the left index finger.
As a result, it is found that claimant has sustained a
50 percent impairment to his left index finger. Using the
schedule, claimant is entitled to 17.5 weeks of permanent
partial disability benefits due to this injury.
The next issue to address is claimant's rate.
Iowa Code section 85.36 provides, in relevant part:
The basis of compensation shall be the weekly
earnings of the injured employee at the time of
the injury.
....
6. In the case of an employee who is paid on a
daily, or hourly basis, or by the output of the
employee, the weekly earnings shall be computed by
dividing by thirteen the earnings, not including
overtime or premium pay, of said employee earned
in the employ of the employer in the last
completed period of thirteen consecutive calendar
Page 6
weeks immediately preceding the injury.
Rule 343 IAC 8.2 provides the following information:
The word "overtime" as used in Iowa Code
section 85.61 means amounts due in excess of the
straight time rate for overtime hours worked.
Such excess amounts shall not be considered in
determining gross weekly wages within Iowa Code
section 85.36. Overtime hours at the straight
time rate are included in determining gross weekly
earnings.
Claimant's rate is easily determined. Defendants argue
that overtime hours worked by claimant should not be
included in his rate calculation because he volunteered to
work the overtime hours. Claimant testified that some of
the overtime hours were mandatory, and some were voluntary.
The undersigned is unable to find any authority for
defendants' argument. Whether the overtime hours worked
were voluntary is irrelevant. Claimant was paid for the
overtime hours worked, and as a result, they are calculated
at straight time and are included in determining gross
weekly earnings.
Claimant's gross weekly earnings for the thirteen weeks
prior to his injury were $5,259.52, divided by 13 equals
$404.58. Pursuant to the July, 1990 Guide To Iowa Workers'
Compensation Claim Handling, claimant's workers compensation
rate is $269.24 for the September 4, 1990 injury date.
AGENCY FILE NUMBER 1016382
The first issue to be addressed is whether claimant
sustained a permanent disability due to the carpal tunnel
symptoms caused by his work which manifested themselves on
February 19, 1992. If it is determined that claimant has
sustained any permanency due to this injury, the amount of
permanent partial disability benefits to which he is
entitled will be determined under Iowa Code section
85.34(2)(s).
Dr. Tung was the treating physician with respect to the
diagnosis and treatment of the carpal tunnel problems. Once
he had completed his management of the case and released
claimant to return to work, he did not detect any permanent
impairment to either wrist.
A second opinion, given by Dr. Blair, states that
claimant has sustained minimal impairments of two percent to
the right hand, and three percent to the left hand.
A treating physician's testimony is not entitled to
greater weight as a matter of law than that of a physician
who later examines claimant in anticipation of litigation.
Weight to be given testimony of physician is a fact issue to
be decided by the industrial commissioner in light of the
record the parties develop. In this regard, both parties
may develop facts as to the physician's employment in
Page 7
connection with litigation, if so; the physician's
examination at a later date and not when the injuries were
fresh; the arrangements as to compensation; the extent and
nature of the physician's examination; the physician's
education, experience, training, and practice; and all other
factors which bear upon the weight and value of the
physician's testimony may be considered. Both parties may
bring all this information to the attention of the
factfinder as either supporting or weakening the physician's
testimony and opinion. All factors go the value of the
physician's testimony as a matter of fact not as a matter of
law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d
187, 192 (Iowa 1985).
A wrist injury generally is an injury to the hand, not
the upper extremity. The hand extends to the distal end of
the radius and ulna, including the carpus or wrist. Elam v.
Midland Mfg., II Iowa Industrial Commissioner Report 141
(App. 1981).
Claimant's own testimony is the most dependable factor
in finding that he has not sustained any permanent
impairment due to the carpal tunnel syndromes and subsequent
surgeries. During the hearing, he maintained that he had
received a very good result from the surgeries. His main
concern was the residual pain and loss of range of motion in
his left index finger.
As a result, it is found that claimant has not
sustained a permanent impairment to either hand due to the
carpal tunnel surgeries. Claimant takes nothing for this
cause of action.
ORDER
THEREFORE, IT IS ORDERED:
That defendants shall pay claimant permanent partial
disability benefits totaling seventeen point five (17.5)
weeks at the rate of two hundred sixty-nine and 24/100
dollars ($269.24) per week commencing March 2, 1991.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa section 85.30.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendants shall file an activity report upon
payment of this award as required by the agency pursuant to
rule 343 IAC 3.1.
Signed and filed this ____ day of August, 1993.
Page 8
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Bruce L Walker
Attorney at Law
321 Market St
P O Box 2150
Iowa City IA 52244-2150
Mr Mark A Woollums
Attorney at Law
600 Union Arcade Bldg
111 E Third St
Davenport IA 52801-1596
5-1800
Filed August 13, 1993
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
PHILLIP RAY, :
:
Claimant, :
:
vs. :
: File No. 966038
CRANE VALVES, : 1016382
:
Employer, : A R B I T R A T I O N
:
and : D E C I S I O N
:
CIGNA PROPERTY AND CASUALTY :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1800
Claimant awarded 17.5 weeks due to 50% loss of use of index
finger.