BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
BEVERLY BOLDRA,
Claimant, File No. 966057
vs. A P P E A L
ARATEX SERVICES, D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal. The decision of the deputy
filed September 27, 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 April, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Dennis M. McElwain
Attorney at Law
P.O. Box 1194
Sioux City, Iowa 51102
Mr. Stephen W. Spencer
Attorney at Law
P.O. Box 9130
Des Moines, Iowa 50306-9130
5-1402.40
Filed April 27, 1994
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
BEVERLY BOLDRA,
Claimant,
File No. 966057
vs.
A P P E A L
ARATEX SERVICES,
D E C I S I O N
Employer,
Self-Insured,
Defendant.
___________________________________________________________
5-1402.40
Claimant failed to prove onset of radicular symptoms some
four months after back incident were causally related.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
BEVERLY BOLDRA,
Claimant,
File no. 966057
vs.
A R B I T R A T I O N
ARATEX SERVICES,
D E C I S I O N
Employer,
Self-Insured,
Defendant.
___________________________________________________________
STATEMENT OF THE CASE
This proceeding is upon the petition in arbitration of
claimant Beverly Boldra against her self-insured employer,
Aratex Services. Ms. Boldra asserts that she sustained a
back injury arising out of her employment on or about May 3
or May 8, 1990. Accordingly, a hearing was held in Sioux
City, Iowa on May 20, 1993. The record consists of
claimant's exhibits 1 through 10, 12 through 50 and 54,
defendant's exhibits A and B and the testimony of claimant,
Charles Griffin and David Dersheimer.
ISSUES
The parties have stipulated that:
1. An employment relationship existed at the
time of the alleged injury;
2. If defendants are liable for the injury,
claimant is entitled to healing period/temporary
total disability benefits from April 5, 1991
through August 8, 1991;
3. Any disability is an industrial disability;
4. The rate of compensation is $192.61;
5. Medical benefits are no longer in dispute;
6. Defendants paid voluntary benefits totaling
$4,965.43 prior to hearing.
Issues presented for resolution include:
1. Whether claimant sustained injury arising
out of and in the course of employment;
2. Whether the injury caused temporary or
permanent disability;
3. The extent of permanent disability, if any;
4. Whether penalty benefits should be assessed
under Iowa Code section 86.13;
Page 2
5. Whether claimant is entitled to vocational
rehabilitation benefits under Iowa Code section
85.70.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
Beverly Boldra was employed from 1984 to 1991 by Aratex
Services, a commercial laundry operation. Claimant worked a
number of jobs consistent with that business, specially
including towel skeining (bundling for laundry).
On or about May 3, 1990, claimant was assigned to
operate a large commercial clothes dryer. The tumbler of
this device is large enough for an adult to stand inside.
Ordinarily, men had been assigned this job, claimant being
the first woman. While unloading rugs from the dryer
(assorted sizes such as 3' x 5', 8' x 10'), a number of rugs
had tangled into a heavy mass. While manipulating these,
claimant heard an audible "snap" in her lower back and
developed a dull ache; however, she continued to work.
Several days later, production manager David Dersheimer
authorized her to see a physician. Claimant first visited
her regular family doctor, T. H. Mitchell, M.D., on May 11.
Dr. Mitchell's chart notes reflect complaints of nonspecific
low back discomfort without radiation.
Prior to this, claimant's only medical treatment for
back discomfort had been during the last trimester of a
pregnancy in 1983. Dr. Mitchell noted no spasm or
fasciculation. Straight leg raising, gait and station and
deep tendon reflexes were normal.
Claimant testified that she saw Dr. Mitchell on three
occasions, each visit two weeks apart. She further
testified that after the third visit, the dull ache was only
intermittent. She continued to work in the same job,
including the large tumbler dryer.
In August, claimant vacationed in South Dakota. She
noticed numbness in one toe on one morning upon awaking.
In mid-September, claimant began developing numbness
and radiating pain in both legs, symptoms that gradually
worsened.
In December 1990, claimant commenced a course of
treatment with William O. Samuelson, M.D.. Dr. Samuelson is
an orthopedic specialist. His initial chart notes reflect
positive straight leg raising with complaints of
intermittent bilateral radiating leg pain which had become
significantly worse over the past several weeks. Dr.
Samuelson's initial assessment was of a herniated disc,
probably at L5-S1. However, both EMG testing and a magnetic
residence imaging scan were normal. Claimant was given
light duty restrictions and physical therapy. An epidural
steroid injection provided pain relief for a few weeks, but
wore off. A second injection was of no help.
Page 3
In April 1991, claimant was referred to Quentin
Durward, M.D.. Dr. Durward is a neurosurgeon who testified
by deposition on March 18, 1993.
Dr. Durward was given the following history:
She gave me the history that she had a work
injury that had occurred in May of '90 and she
basically has had pain since that time. She said
she injured her back while she was pulling rugs
out of a tumbler. She heard a, quote, pop, quote,
in her back. There was not too much pain at that
time. However, the pain gradually worsened until
in September it began to go into her legs as a,
quote, shooting pain in the center, quote.
There was no particular precipitator for this.
Usually this pain would come on when she was
standing or walking. She also complained of a,
quote popping and grinding, quote, in her back.
She said, quote, if I squat my legs throb for
several minutes afterwards. I often have a
sensation of my spine being compressed, quote
(Durward Deposition, pp. 5, 1, 10-25).
Dr. Durward also testified he found nothing abnormal on
evaluation, including tests available to him at that time
(plain x-rays, MRI and EMG). Dr. Durward accordingly caused
a myelogram to be performed, but this also proved normal.
During a lengthy course of treatment, Dr. Durward at no
time noticed muscle spasm or any other objective sign of
injury. He eventually ordered permanent work restrictions
and rated impairment at 5 percent of the body as a whole.
Both were entirely due to subjective complaints of pain.
Dr. Durward has never noted any restricted range of motion
or rigidity in the spine and admitted that he was unable to
explain why claimant had pain in the right leg and that he
could find no nerve condition to explain the pain. However,
he also testified that he believed the pain to be genuine.
He causally related both the impairment rating and activity
restrictions to the subject injury.
Claimant was also seen for evaluation by Charles D.
Ray, M.D., of the Institute for Low Back Care in
Minneapolis, Minnesota. Dr. Ray believed that claimant had
a mechanical low back pain syndrome very likely of facet
joint origin, which he described as a very common problem
which is capable of producing significant localized and
radiating buttock and thigh pain. Dr. Ray noted that
claimant had episodic paraspinal muscle spasm, although it
is unclear whether he obtained this information from any
source other than the history given him by claimant. He
found her to be in satisfactory condition as of June 17,
1991. Dr. Ray further sent claimant for physical therapy.
On July 16, 1992, Dr. Samuelson wrote separately to both
attorneys in this case.
Dr. Samuelson's letter to defense counsel contained the
Page 4
following passage:
On April 5, 1991 she requested to be seen by
Dr. Durward and was referred for evaluation and
follow-up care. She did have normal EMG's and
normal nerve conduction studies, and at the
present time, I would not give her a permanent
impairment rating.
In his letter to claimant's attorney, Dr. Samuelson
noted that he had reviewed the letter from Dr. Durward and
"would agree with his letter." The attorney's letter, to
which Dr. Samuelson was responding, enclosed Dr. Durward's
letter of June 8, 1992. That letter itself noted Dr.
Durward's opinion that claimant's permanent partial
impairment rating was related to pulling damp rags out of
industrial tumblers at Aratex.
Since Dr. Durward had earlier rated a 5 percent whole
body impairment, it is most difficult to reconcile Dr.
Samuelson's two letters. It appears that he simultaneously
refused to give any impairment rating while agreeing with a
5 percent impairment rating causally connected to the
original injury.
Due to the medical restrictions imposed by Dr. Durward,
defendant was unable to return claimant to work. She was
eventually discharged in 1992, after last working in April
1991.
REASONING AND CONCLUSIONS OF LAW
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
Claimant's testimony that she suffered a "snap" in the
low back on May 3, 1990 is credible and undisputed. Her
symptoms at that time necessitated medical treatment from
Dr. Samuelson. Thus, claimant did sustain a compensable
work injury arising out of and in the course of employment.
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
Page 5
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
Causation is the key issue in this case. According to
the parties' stipulation, disputed healing period or
temporary total disability began on April 5, 1991. Both
temporary and any permanent disability relate to claimant's
condition subsequent to September 1990, when she began
developing radicular symptoms. The crucial issue in this
case is whether those symptoms are causally related to the
original work injury.
Dr. Durward is the only physician in this record to
directly address that question, although Dr. Ray may have
indirectly done so by pointing out that mechanical low back
syndrome of facet joint origin is a "very common problem."
It is clear from the record that Dr. Durward's opinion
is based on an incorrect history. He believed, as shown by
his testimony, that claimant's symptoms were gradually
progressive from the date of injury ("the pain gradually
worsened until in September it began to go into her legs").
Claimant's testimony, both in her trial testimony and in her
deposition of May 28, 1992, is that the dull ache gradually
became intermittent, so that it bothered her only on some
days. It will be recalled that the onset of radicular pain
was at least four months after the original injury
(mid-September in claimant's trial testimony, early
September in her deposition testimony). It will be recalled
that a number of doctors and sophisticated testing have
utterly failed to find objective cause for claimant's
symptoms. Dr. Ray has pointed out that facet joint pain is
very common and can produce a significant amount of
radiating pain with a typically recurrent history. No
mechanism has been described to explain the onset of
radicular symptoms at least four months after an initial
trauma which had, in the meantime, improved.
For these reasons, it must be concluded that claimant
has failed to carry her burden of proof in establishing the
necessary causal nexus between her current symptoms and the
initial work injury. Accordingly, defendants prevail.
Other issues are thereby rendered moot.
ORDER
THEREFORE, IT IS ORDERED:
Claimant shall take nothing further from these
proceedings.
Page 6
Costs of this action are assessed to defendants.
Signed and filed this ____ day of September, 1993.
______________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Dennis McElwain
Attorney at Law
632 Badgerow Bldg.
Sioux City, IA 51102
Mr. Stephen M. Spencer
Attorney at Law
300 Fleming Bldg.
218 Sixth Ave.
Des Moines, IA 50306-9130
5-1402.40
Filed September 27, 1993
David R. Rasey
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
BEVERLY BOLDRA,
Claimant,
File no. 966057
vs.
A R B I T R A T I O N
ARATEX SERVICES,
D E C I S I O N
Employer,
Self-Insured,
Defendant.
___________________________________________________________
5-1402.40
Claimant failed to prove onset of radicular symptoms some
four months after back incident were causally related.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
JANE ROGERS,
Claimant, File No. 966126
vs. A P P E A L
COVENANT MEDICAL CENTER, D E C I S I O N
Employer,
Self-Insured,
Defendant.
_________________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal.
ISSUES
Defendant states the following issues on appeal:
I. The deputy erred in determining that the claimant's
healing period ended on April 3, 1991, as opposed to
February 13, 1990, or sometime in the interim period.
II. The deputy erred in determining that the claimant
has suffered a 40% industrial disability as a result of
the 9/23/89 work injury.
FINDINGS OF FACT
Claimant, Jane Rogers, was born September 6, 1957. She was
36 years of age at the time of hearing, 32 years of age at the
time of injury. (Transcript, page 31)
Claimant graduated from high school in 1976, worked in
retail sales from 1976-79, and the attended Hawkeye Tech in 1979-
80 earning an LPN certificate in 1980. (Tr., p. 32)
Since earning her LPN certificate in 1980 claimant has
worked continuously at Covenant Medical Center. Claimant began
employment with defendant employer in 1980 as an LPN working on a
full-time basis in the Department of Orthopaedics. (Full-time
employment for defendant employer is defined as 80 hours per bi-
weekly pay period.) In this position the claimant provided
patient care including lifting. The claimant remained in this
position until approximately 1984 when she transferred to a full-
time LPN position in defendant employer's Rehabilitation
Department. Claimant's work in the Rehabilitation Department was
even more physically demanding than her work in the Department of
Orthopaedics. (Tr., pp. 33-35)
Claimant worked in the Rehabilitation Department from 1984
until she sustained an injury arising out of and in the course of
her employment on September 23, 1989. (Tr., pp. 36-37, 45)
Claimant sustained a mid-back strain while attempting to restrain
a patient who had become combative. (Tr., p. 37) At the time of
injury the claimant was paid $9.22 per hour. (Tr., p. 63; Exhibit
F-8 to Joint Ex. 8)
Prior to the injury claimant had no difficulty handling the
physical requirements of patient care and her medical condition
was excellent. She had no preexisting back condition. (Tr., pp.
16-17, 35) Pre-injury the claimant had always been a full-time
employee at Covenant Medical Center and worked some overtime
hours. (Tr., pp. 35-36; Claimant's Ex. 1)
After sustaining the work-related injury the claimant was
first seen in the emergency room at Covenant Medical Center on
September 26, 1989. (Jt. Ex. 2, p. 1) Claimant was instructed
to take Motrin and Tylenol 3, have bedrest, and follow-up if
still painful. (Jt. Ex. 2, p. 2; Tr., p. 38) The pain worsened
and claimant returned to Covenant Medical Center on September 28,
1989. (Jt. Ex. 2, pp. 3-5; Tr., p. 38) The claimant was
referred to Orthopaedic Surgeon Arnold Delbridge, M.D., and an
appointment was set for October 6, 1989. (Jt. Ex. 1, p. 7; Jt.
Ex. 2, p. 5; Tr., p. 38) Claimant's thoracic spine was x-rayed
at Covenant Medical Center on October 3, 1989. The x-rays showed
minimal scoliosis, but otherwise were negative. (Jt. Ex. 2, p.
6) On June 17, 1991 Dr. Delbridge ordered a CT scan from T4-T11
which was within normal limits. (Jt. Ex. 1, p. 5)
Dr. Delbridge treated the claimant from October 6, 1989
through December 26, 1991. (Jt. Ex. 1, pp. 7-12) Dr.
Delbridge's treatment of claimant was conservative. (Tr., p. 38)
There was no surgical intervention. Dr. Delbridge opined that
claimant had suffered a two percent functional impairment to the
body as a whole as a result of the thoracic strain. (Jt. Ex. 1,
p. 5)
After being released by Dr. Delbridge on December 26, 1991,
the claimant did not seek any additional medical treatment until
November 1993 when she was seen by "Covenant At Work," an in-
house therapy group provided by defendant employer for its
employees. The claimant was seen briefly in November 1993 for a
short course of physical therapy and again in April 1994, again
for a short course of physical therapy. (Tr., pp. 43-44, 70-73)
Dr. Delbridge has released claimant to work with the
restriction that she not lift more than 20 pounds maximally and
15 pounds on a repetitive basis. (Jt. Ex. 1, p. 6; Tr., p. 42)
Dr. Delbridge has not released claimant for full duty LPN work.
(Tr., p. 39) Other than the lifting restriction, there are no
other restrictions on claimant's employability. (Tr., p. 73)
Claimant experiences pain on a daily basis in the mid to
upper back area as well as headaches two or three times a week.
(Tr., p. 41) Currently, the claimant takes Tylenol Extra
Strength, but no prescription medication. (Tr., pp. 41-42)
Due to claimant's work injury, Dr. Delbridge would not allow
her to work from October 6, 1989 through October 31, 1989. Dr.
Delbridge released the claimant for light duty work effective
November 1, 1989. (Jt. Ex. 1, p. 7; Tr., p. 39)
Claimant returned to light duty work at defendant employer
on November 1, 1989. The claimant returned to light duty work in
what is known as the "project pool." Claimant's work included
passing medicine and giving drinks to patients. The work did not
involve any lifting. (Tr., pp. 39, 59-60; Jt. Ex. 8, pp. 2-3)
Dr. Delbridge would periodically increase the number of hours and
days the claimant could work. (Tr., p. 39; Jt. Ex. 1) The
claimant continued on light duty through the project pool until
December 16, 1991. When the claimant first returned to light
duty work in the project pool she was paid $9.22 per hour, the
same hourly rate she was paid at the time of injury. While
working in the project pool the claimant received two pay raises,
first to $9.50 per hour effective September 11, 1990 and then to
$9.88 per hour effective October 7, 1991. (Ex. F-8 of Jt. Ex. 8)
As previously stated, the claimant was continuously employed
in light duty work in the project pool from November 1, 1989
until December 16, 1991. Effective December 16, 1991 claimant
took a job as ambulatory resource coordinator for defendant
employer. (Tr., p. 50; Ex. F-2 of Jt. Ex. 8) As ambulatory
resource coordinator the claimant's duties included scheduling
outpatient testing and teaching patients regarding how to prepare
for various tests. (Tr., p. 65) The claimant is not required to
do any lifting. (Tr., p. 50) The claimant can fulfill all of
the job functions of this position. (Tr., p. 74) The claimant
enjoys her work. (Tr., p. 66)
The claimant is currently paid $10.89 per hour. (Tr., p.
64) The claimant, through the date of hearing, has received
three pay raises since taking the position of ambulatory resource
coordinator. Effective October 5, 1992 the claimant's pay was
raised from $9.88 per hour to $10.37 per hour; effective October
6, 1992 claimant's pay was raised to $10.57 per hour; and
effective October 3, 1993 the claimant's pay was raised to its
current level of $10.89 per hour. (Ex. F-8 of Jt. Ex. 8) The
claimant has received each and every pay raise for which she has
been eligible. (Tr., p. 62)
While the claimant's post-injury hourly rate of pay is
higher than her hourly pay at the time of injury, post-injury she
normally works fewer hours per pay period than at the time of
injury. As previously found, pre-injury the claimant worked 80
hours per bi-weekly pay period with some overtime hours. When
the claimant began her job as ambulatory resource coordinator on
December 16, 1991 she was scheduled to work 40 hours per bi-
weekly pay period. (Tr., p. 85) In October 1993 the claimant's
hours, even though still not full-time, were substantially
increased. For the fifteen consecutive pay periods from October
1993 through April 1994 the claimant's hours per pay period have
ranged from a low of 62.5 hours to a high of 87 hours. During
these fifteen pay periods the claimant has averaged 70.6 hours
per pay period. (Ex. F-7 of Jt. Ex. 8) In fact, a few days
prior to the contested case evidentiary hearing the claimant was
put on a schedule that has her working a scheduled 72 hours per
pay period. (Tr., p. 54) The schedule for the last pay period
before the contested case evidentiary hearing, i.e., the pay
period beginning May 29, 1994, has the claimant scheduled to work
80 hours. (Tr., p. 86)
Even though currently the claimant normally works fewer
hours per pay period than at the time of injury, her increased
hourly rate of pay has kept her current total earnings higher
than her total earnings at the time of injury. The claimant's
total wages on a calendar year basis from defendant employer are:
1986 $17,049.55 (Tr., pp. 49-50)
1987 $16,668.43 (Tr., p. 49)
1988 $17,723.59 (Tr., p. 49)
1989 $ 9,940.94 (Jt. Ex. 4, p. 1)
1990 $ 9,246.00 (Jt. Ex. 5, p. 1)
1991 $15,298.00 (Jt. Ex. 6, p. 1)
1992 $14,082.47 (Jt. Ex. 7, p. 2)
1993 $18,417.91 (Tr., p. 63)
Calendar year 1988 is the most representative year of those
in the record reflecting claimant's pre-injury earnings.
Calendar year 1993 is the most representative of claimant's
current situation as it most clearly reflects the number of hours
per pay period she is scheduled to work. Both on an hourly rate
of pay basis and a yearly earnings basis, the claimant is
currently earning more wages than at the time of injury.
Calendar years 1990-1992 reflect the claimant's post-injury loss
of actual earnings during the time she was working in the project
pool and during the time she was working as ambulatory resource
coordinator for 40 hours per pay period. Again, tax year 1993
most accurately reflects the current status of claimant's actual
earnings with defendant employer.
On April 3, 1991 Dr. Delbridge felt claimant's condition had
stabilized to the point of being able to be rated for permanency.
For purposes of the healing period/temporary partial disability
issue, Dr. Delbridge's clinical notes from November 7, 1989
through April 3, 1991 are relevant. (See Jt. Ex. 1, pp. 7-11)
The industrial commissioner will not reproduce those relevant
clinical notes in these findings of fact, but suffice it to say
those clinical notes are a part of these findings of fact just as
if laid out verbatim herein.
REASONING AND CONCLUSIONS OF LAW
The industrial commissioner first addresses the healing
period/temporary partial disability issue.
Iowa Code section 85.34(1) provides that healing period
benefits are payable to an injured worker who has suffered
permanent partial disability until (1) the worker has returned to
work; (2) the worker is medically capable of returning to
substantially similar employment; or (3) the worker has achieved
maximum medical recovery. The healing period can be considered
the period during which there is a reasonable expectation of
improvement from the disabling condition. See Armstrong Tire &
Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 1981). Healing
period benefits can be interrupted or intermittent. Teel v.
McCord, 394 N.W.2d 405 (Iowa 1986).
In the instant case the claimant sustained an injury on
September 23, 1989, which resulted in permanent partial
disability. She returned to part-time, light duty work on
November 1, 1989. Pursuant to Iowa Code section 85.34 claimant
is entitled to healing period benefits from September 23, 1989
through October 31, 1989. Thereafter, claimant is entitled to
temporary partial disability benefits until April 3, 1991. At
that time claimant's treating physician, Dr. Delbridge, indicated
claimant had reached a stable state and could be rated for
permanency. Prior to April 3, 1991, Dr. Delbridge's clinical
notes indicate numerous modalities of physical therapy attempted,
along with setbacks in her progress which required slow increases
in her activities and hours of employment. In other words, prior
to April 3, 1991 Dr. Delbridge's clinical notes show there was a
reasonable expectation of improvement from claimant's disabling
condition. As claimant reached maximum recovery on April 3, 1991
her temporary partial disability benefits end on that date.
The final issue to be addressed by the industrial
commissioner is the extent of claimant's industrial disability.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to the
injury, immediately after the injury, and presently; the situs of
the injury, its severity and the length of the healing period;
the work experience of the employee prior to the injury and after
the injury and the potential for rehabilitation; the employee's
qualifications intellectually, emotionally and physically;
earnings prior and subsequent to the injury; age; education;
motivation; functional impairment as a result of the injury; and
inability because of the injury to engage in employment for which
the employee is fitted. Loss of earnings caused by a job
transfer for reasons related to the injury is also relevant.
Likewise, an employer's refusal to give any sort of work to an
impaired employee may justify an award of disability. McSpadden
v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are
matters which the finder of fact considers collectively in
arriving at the determination of the degree of industrial
disability.
There are no weighting guidelines that indicate how each of
the factors are to be considered. Neither does a rating of
functional impairment directly correlate to a degree of
industrial disability to the body as a whole. In other words,
there are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw upon
prior experience as well as general and specialized knowledge to
make the finding with regard to degree of industrial disability.
See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 529 (App. March 26, 1985);
Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28, 1985).
Compensation for permanent partial disability shall begin at
the termination of the healing period. Compensation shall be
paid in relation to 500 weeks as the disability bears to the body
as a whole. Iowa Code section 85.34.
Claimant, a high school graduate with an LPN certificate,
sustained a work-related injury that now forecloses her from
employment as an LPN floor nurse. While the claimant has a
functional impairment rating that is low (2%), she has a lifting
restriction of not more than 20 pounds maximally and 15 pounds on
a repetitive basis. The work restriction imposed by Dr.
Delbridge effectively forecloses the claimant from working in the
profession she occupied for 10 years prior to her injury.
Clearly claimant is a motivated individual. But for defendant
employer's willingness to accommodate claimant's work
restriction, the evidence causes the industrial commissioner to
conclude that due to claimant's work injury her prospects for
employment, without retraining, would not be good. On the other
hand, the record establishes that claimant is in a stable
employment relationship with an employer that has continuously
employed her since 1980. There is no evidence of record that
even remotely suggests claimant's continued employment with
defendant employer is in jeopardy. To the contrary, there is an
abundance of evidence that shows claimant is in a stable
employment relationship with defendant employer. Evidence of a
stable employment relationship includes: Claimant has received a
total of five pay raises since her return to work; defendant
employer has provided the claimant with meaningful work (claimant
is not in a make work situation); claimant enjoys her work as
ambulatory resource coordinator; defendant employer has fully and
completely complied with claimant's work restrictions; and
claimant's bi-weekly hours of employment have steadily increased
to the point where they are now near full-time. In the
unforeseen event that claimant's employment with defendant
employer would cease, claimant's age and intelligence suggest she
is suited for retraining. Claimant's injury did not require
surgical intervention and, with the exception of short periods of
physical therapy, the claimant's injury stabilized on April 3,
1991 and she has not been treated since her last visit with Dr.
Delbridge on December 26, 1991.
The factor involving claimant's actual earnings is viewed by
the industrial commissioner as being neutral with the facts that
are present in this record. Clearly, even though the claimant's
hourly rate of pay was higher post-injury than pre-injury, she
had a loss of actual earnings until calendar year 1993. Just as
clear is the fact that, due to a steady increase in the
claimant's scheduled hours of employment coupled with numerous
pay raises, she earned more wages from defendant employer in
calendar year 1993 than she did in any pre-injury calendar year.
The claimant's 1994 earnings, up through the date of hearing,
certainly show the claimant is again on track to exceed her pre-
injury earnings, both in terms of hourly rate of pay and calendar
year wages.
After considering all of the factors used in determining
industrial disability, it is the decision of the industrial
commissioner that Jane Rogers has sustained a 15 percent
industrial disability.
WHEREFORE, the decision of the deputy is affirmed and
modified.
ORDER
THEREFORE, it is ordered:
That defendant shall pay to claimant seventy-five (75) weeks
of permanent partial disability benefits at a rate of two hundred
seventy and 02/100 dollars ($270.02) per week from April 4, 1991.
That defendant shall pay to claimant healing period benefits
from September 23, 1989 through October 31, 1989, at the rate of
two hundred seventy and 02/100 dollars ($270.02) per week.
That defendant shall pay to claimant temporary partial
disability benefits as set forth in Iowa Code section 85.33 from
November 1, 1989 through April 3, 1991.
That defendant shall pay accrued weekly benefits in a lump
sum and shall receive credit against this award for all weekly
benefits previously paid.
That defendant shall pay interest on weekly benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendant shall pay the costs of this matter including
transcription of the hearing and shall reimburse claimant for the
filing fee if previously paid by claimant.
That defendant shall file claim activity reports as required
by this agency pursuant to rule 343 IAC 3.1(2).
Signed and filed this ____ day of November, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Fred L. Morris
Attorney at Law
P.O. Box 9130
Des Moines, Iowa 50306-9130
Mr. Mark W. Fransdal
Attorney at Law
P.O. Box 627
Cedar Falls, Iowa 50613
5-1801.1; 5-1803
Filed November 18, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
JANE ROGERS,
Claimant, File No. 966126
vs. A P P E A L
COVENANT MEDICAL CENTER, D E C I S I O N
Employer,
Self-Insured,
Defendant.
_________________________________________________________________
5-1801.1
Claimant returned to part-time, light duty work. Her
subsequent medical treatment resulted in slow increases in her
activities and hours of employment. Claimant was entitled to
temporary partial disability benefits during the time the medical
evidence showed there was a reasonable expectation of improvement
from claimant's disabling condition.
5-1803
Claimant was 32 years of age at the time of the injury. She
was a high school graduate with an LPN certificate. She injured
her back and had a two percent functional impairment as a result
of the thoracic strain. She had lifting restrictions which
foreclosed her from employment as an LPN floor nurse. She was
motivated. The employer accommodated claimant. Her injury did
not necessitate surgical intervention. Her post-injury earnings
were higher than her pre-injury earnings. Claimant was awarded a
15 percent industrial disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
JANE ROGERS, :
: File No. 966126
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
COVENANT MEDICAL CENTER, :
:
Employer, :
Self-Insured, :
Defendant. :
_________________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Jane Rogers,
claimant, against Covenant Medical Center, employer, hereinafter
referred to as Covenant, a self-insured defendant, for workers'
compensation benefits as a result of an alleged injury on
September 23, 1989. On June 14, 1994 a hearing was held on
claimant's petition and the matter was considered fully submitted
at the close of this hearing.
The parties have submitted a hearing report of contested
issues and stipulations which was approved and accepted as a part
of the record of this case at the time of hearing. The oral
testimony and written exhibits received during the hearing are
set forth in the hearing transcript.
According to the hearing report, the parties have stipulated
to the following matters:
1. On September 23, 1989, claimant received an injury
arising out of and in the course of employment with Covenant.
2. Claimant is seeking temporary total/partial or healing
period benefits from September 24, 1989 through April 3, 1991.
3. If the injury is found to have caused permanent
disability, the type of disability is an industrial disability to
the body as a whole.
4. At the time of injury claimant's gross rate of weekly
compensation was $414.55; she was married; and she was entitled
to four exemptions. Therefore, claimant's weekly rate of
compensation is $270.02 according to the Industrial
Commissioner's published rate booklet for this injury.
Page 2
5. All requested medical benefits have been or will be paid
by defendant.
ISSUE
The only issue submitted by the parties for determination in
this proceeding was the extent of claimant's entitlement to
disability benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as follows:
A credibility finding is necessary to this decision as
defendant placed claimant's credibility at issue during cross-
examination as to the nature and extent of the injury and
disability. From her demeanor while testifying, claimant is
found credible.
Claimant has worked for Covenant, a medical center, since
1980 and continues to do so at the present time. Until the work
injury, claimant was employed as a Licensed Practical Nurse (LPN)
performing floor nurse duties. She first worked in the
osteopathic unit and later was transferred to the "rehab" unit.
The rehab unit was the most demanding physically for LPNs at
Covenant as the patients were extremely disabled and entirely
unable to care for themselves. They were also more prone to be
combative and uncooperative. It was while working in this rehab
unit that claimant suffered her work injury. Prior to the work
injury claimant was full time, working usually approximately 44
hours per week.
The work injury was a severe mid/lower back strain which
occurred while claimant was attempting to restrain an unruly male
patient. Claimant's care was soon transferred to an orthopedic
surgeon, Arnold Delbridge, M.D. Dr. Delbridge treated claimant
until November 1989. This treatment remained conservative with
extensive physical therapy. Based upon the uncontroverted views
of the treating physician, Dr. Delbridge, claimant reached
maximum healing on April 3, 1991.
Claimant returned to part-time light duty work at Covenant
on November 1, 1989 but has not returned to full time regular
employment since. Claimant first worked half-time and her hours
were later increased somewhat. Despite a stated release to full
duty in the initial release slips prepared by Dr. Delbridge,
claimant credibly stated that she never returned to full duty and
remained in the light duty project pool until December 16, 1991
at which time she was transferred to another part-time job
entitled "ambulatory resource coordinator." The light duty
Page 3
project pool was only a temporary assignment for employees on
temporary work restrictions. Claimant had no choice but to
accept reassignment to this part-time work or face discharge.
Dr. Delbridge has imposed a permanent work restriction upon
claimant's activities consisting of no occassional lifting over
20 pounds and no repetitive lifting over 15 pounds. Based upon
the uncontroverted views of Dr. Delbridge, the work injury is
found to have caused a two percent permanent partial impairment
to the body as a whole.
Claimant's medical condition before the work injury was
excellent and she had no functional impairments or ascertainable
disabilities. Claimant was able to fully perform physical tasks
involving heavy lifting; repetitive lifting, bending, twisting
and stooping. Due to his physical limitations, claimant's
medical condition prevents her from returning to her former work
as an LPN or any other work requiring claimant to violate her
work restrictions. Claimant is 36 years of age. Claimant has a
high school education and certification as an LPN. Claimant's
only past employment, experience and education has been for a
career as an LPN. As admitted by Covenant at hearing, there are
very few jobs as an LPN that does not require lifting in excess
of claimant's permanent work restrictions. Although her age and
experience suggest good potential for vocational rehabilitation,
at present this is unnecessary as defendant has reemployed
claimant in a job suitable to her disability which earns, at
least per hour, the same pay as an LPN. However, claimant
remains only a part-time employee and only occasionally works
full time when needed to fill in during vacation time. Although
her superiors have asked for more hours in the department, there
is no assurance that this will be granted or that claimant will
receive those additional hours. At the present time, claimant
has suffered a 30-35 percent loss in actual earnings and benefits
as a result of the job transfer from LPN to her current job.
However, there is good potential in this current job as the
department is expanding due to increased use of outpatient
services and claimant expresses satisfaction with the job.
From examination of all of the factors of industrial
disability, it is found that the work injury of September 23,
1989 was a cause of a 40 percent loss of earning capacity.
CONCLUSIONS OF LAW
As the claimant has shown that the work injury was a cause a
permanent physical impairment or limitation upon activity
involving the body as a whole, the degree of permanent disability
must be measured pursuant to Iowa Code section 85.34(2)(u).
However, unlike scheduled member disabilities, the degree of
disability under this provision is not measured solely by the
extent of a functional impairment or loss of use of a body
member. A disability to the body as a whole or an "industrial
Page 4
disability" is a loss of earning capacity resulting from the work
injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593,
258 N.W. 899 (1935). A physical impairment or restriction on
work activity may or may not result in such a loss of earning
capacity. Examination of several factors determines the extent
to which a work injury and a resulting medical condition caused
an industrial disability. These factors include the employee's
medical condition prior to the injury, immediately after the
injury and presently; the situs of the injury, its severity and
the length of healing period; the work experience of the employee
prior to the injury, after the injury and potential for
rehabilitation; the employee's qualifications intellectually,
emotionally and physically; earnings prior and subsequent to the
injury; age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss of
earnings caused by a job transfer for reasons related to the
injury is also relevant. See Peterson v. Truck Haven Cafe, Inc.,
(Appeal Decision, February 28, 1985).
Claimant argues that this agency should consider the
possibility that claimant may lose her job at Covenant in
assessing disability. Absent clear evidence that this will
happen, this agency is to assess current, not possible future
disability. Umphress v. Armstrong Rubber Co., (Appeal Decision
Filed August 27, 1987). Likewise, it would be speculation at
this time that claimant will receive more hours in the future.
In the case sub judice, it was found that claimant suffered
a 30 percent loss of her earning capacity as a result of the work
injury. Such a finding entitles claimant to 200 weeks of
permanent partial disability benefits as a matter of law under
Iowa Code section 85.34(2)(u) which is 40 percent of 500 weeks,
the maximum allowable number of weeks for an injury to the body
as a whole in that subsection.
Claimant's entitlement to permanent partial disability also
entitles her to weekly benefits for healing period under Iowa
Code section 85.34 from the date of injury until claimant returns
to work; until claimant is medically capable of returning to
substantially similar work to the work she was performing at the
time of injury; or, until it is indicated that significant
improvement from the injury is not anticipated, whichever occurs
first.
As claimant returned to work on November 1, 1989, she is
entitled to healing period benefits from the date of injury until
the time of her return to work. After that claimant is entitled
to temporary partial disability until April 3, 1991, the time
when the primary treating physician felt that claimant's
condition stabilized to the point of being able to be rated for
permanency. A specific award of temporary partial disability
Page 5
under Iowa Code section 85.33 will not be made as it is assumed
the parties will be able to work out the numerical details. If
this is not possible, the request for additional orders may be
made within the undersigned's 20 day jurisdiction following the
issuance of this decision.
ORDER
1. Defendant shall pay to claimant two hundred (200) weeks
of permanent partial disability benefits at a rate of two hundred
seventy and 02/l00 dollars ($270.02) per week from April 4, 1991.
2. Defendant shall pay to claimant healing period benefits
from September 23, 1989 through October 31, 1989, at the rate of
two hundred seventy and 02/l00 dollars ($270.02) per week.
3. Defendant shall pay to claimant temporary partial
disability benefits as set forth in Iowa Code section 85.33 from
November 1, 1989 through April 3, 1991.
4. Defendant shall pay accrued weekly benefits in a lump
sum and shall receive credit against this award for all weekly
benefits previously paid.
5. Defendant shall pay interest on weekly benefits awarded
herein as set forth in Iowa Code section 85.30.
6. Defendant shall pay the costs of this action pursuant to
343 IAC 4.33, including reimbursement to claimant for any filing
fee paid in this matter.
7. Defendant shall file activity reports on the payment of
this award as requested by this agency pursuant to 343 IAC 3.1.
Signed and filed this ____ day of July, 1994.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Page 6
Copies To:
Mr. Mark W. Fransdal
Attorney at Law
315 Clay Street
PO Box 627
Cedar Falls IA 50613
Mr. Fred L. Morris
Attorney at Law
405 Sixth Ave STE 700
Des Moines IA 50309
5-1803
Filed July 15, 1994
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JANE ROGERS,
File No. 966126
Claimant,
A R B I T R A T I O N
vs.
D E C I S I O N
COVENANT MEDICAL CENTER,
Employer,
Self-Insured,
Defendants.
___________________________________________________________
5-1803
Non-precedential, extent of disability case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
JANE ROGERS, :
: File No. 966126
Claimant, :
: O R D E R
vs. :
: N U N C
COVENANT MEDICAL CENTER, :
: P R O
Employer, :
Self-Insured, : T U N C
Defendant. :
_________________________________________________________________
Due to typographical error, the first full unnumbered paragraph
on page 4 of the arbitration decision filed July 15, 1994 is
amended to read as follows:
In the case sub judice, it was found that claimant suffered a 40
percent loss of her earning capacity as a result of the work
injury.
The remaining portions of the decision remain unchanged.
Signed and filed this ____ day of July, 1994.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Mark W. Fransdal
Attorney at Law
315 Clay Street
PO Box 627
Cedar Falls IA 50613
Mr. Fred L. Morris
Attorney at Law
405 Sixth Ave STE 700
Des Moines IA 50309
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
MARY HUEBNER,
Claimant,
vs.
File No. 966127
COVENANT MEDICAL CENTER,
A R B I T R A T I O N
Employer,
Self-Insured, D E C I S I O N
Defendant.
________________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by the claimant, Mary
Huebner, against her self-insured employer, Covenant Medical Center, to
recover benefits under the Iowa Workers' Compensation Act as a result
of an injury sustained on January 15, 1990. This matter came on for
hearing before the undersigned deputy industrial commissioner in
Waterloo, Iowa, on May 24, 1994. A first report of injury has been
filed. The record consists of the testimony of claimant, of Marilyn
Millries, of Susan Kay Blake, of Julie Cook, R.N., of Edward F.
Steiner, and of Julia Marcuzzo, as well as of claimant's exhibits 8
through 15 and defendant's exhibits 1 and 2; 6 through 14; and 18
through 21.
ISSUES
Pursuant to the hearing report and the oral stipulations of the parties
at hearing, the parties agree to the following:
1. An employer-employee relationship existed between claimant and
Covenant Medical Center on January 15, 1990;
2. Claimant did receive an injury to her right knee which injury arose
out of and in the course of her employment on January 15, 1990;
3. A causal relationship existed between claimant's January 15, 1990
right knee injury and a period of temporary total disability and a
degree of permanent partial disability;
4. Claimant was off work from January 23, 1990 through February 11,
1991, and from May 11, 1992 through September 7, 1993, and seeks
temporary total or healing period benefits through those dates;
5. The commencement date for permanent partial disability benefits, if
awarded, is November 13, 1990, or September 8, 1993;
6. Claimant had a gross weekly wage of $432.55, was married and
entitled to three exemptions on January 15, 1990, resulting in a weekly
rate of compensation of $275.74;
7. Claimant has been paid 51.429 weeks of compensation at the
stipulated rate; and,
8. Defendant is entitled to a credit under section 85.38(2) for
payment of medical and hospitalization expenses.
ISSUES REMAINING TO BE DECIDED ARE:
1. Whether a causal relationship exists between claimant's January 15,
1990 injury and claimed disability to her low back and claimed
disability related to her psychiatric condition;
2. The nature and extent of any temporary or permanent disability
entitlement; and,
3. Whether claimant is entitled to payment of certain medical expenses
under section 85.27, specifically, whether treatment rendered was
reasonable and necessary treatment causally related to the work injury
and defendant authorized.
FINDINGS OF FACT
The deputy, having heard the testimony and considered the evidence,
finds:
Claimant is a 56-year-old licensed practical nurse who has worked for
the employer or its predecessors since October 1975. Claimant's work
history otherwise consists of childrearing and homemaking.
On January 15, 1990, claimant received an injury when she experienced
pain in her right knee while kneeling to remove a catherizer. Claimant
initially sought emergency care. On January 23, 1990, claimant saw
Dale G. Phelps, M.D. X_rays revealed an old osteochondritis dessicans.
Dr. Phelps prescribed an immobilizer.
James E. Crouse, M.D., a board certified orthopedic surgeon, first saw
claimant on January 30, 1990. He performed arthroscopic surgery on
February 5, 1990. This confirmed loose fragments of the
osteochondritis dessicans as well as cartilage wear in the medial
compartment of the knee, degenerative changes of the tibia and a loose
fragment broken loose from the medial femoral condyle. Dr. Crouse
removed the loose fragment of the osteochondritis and burr smoothed the
crater in the medial femoral condyle.
In his deposition, Dr. Crouse characterized osteochondritis dessicans
as a condition where a segment of the bone and cartilage at the knee
does not form a complete bony union. It usually involves the medial
femoral condyle. He stated that claimant's dessicans preexisted her
January 15, 1990 date of injury and was probably present since claimant
was an adolescent. Both Dr. Cruse and Dr. Phelps opined that
claimant's work incident of January 15, 1990, resulted in claimant's
dessicans condition becoming symptomatic. We note that the parties
have stipulated as to the causal relationship between the work injury
and claimant's right knee condition.
It is expressly found that claimant's knee was not symptomatic prior to
her January 15, 1990 injury. Apportionment of disability between
claimant's preexisting knee condition and her injury and subsequent
surgeries is, therefore, inappropriate as claimant had no actual loss
of use of the knee prior to her January 15, 1990 injury. See, Bearce
v. FMC Corporation, 465 N.W.2d 531 (Iowa 1991).
Dr. Crouse followed claimant through 1990. On August 9, 1990, x_ray
examination showed that the defect in the medial femoral condyle was
healing. Claimant then was restricted to moderate standing and walking
and was not restricted as regards sitting. She had good knee range of
motion. On a February 19, 1990 visit, claimant complained of
experiencing back pain after falling when her knee gave out as she
attempted to climb stairs in her home. On October 11, 1990, a Dr.
Johnson released claimant to return to work three days per week. On
November 12, 1990, Dr. Crouse advised that while claimant was not to
increase her activities and continue restrictions, she was at maximum
medical improvement.
On March 18, 1991, Dr. Crouse advised that claimant should not return
to floor nursing as she would do better in a primarily sedentary job.
On February 11, 1991, Dr. Crouse reported claimant as having a good
deal of knee discomfort with substantial walking and as stating that
favoring her knee aggravated her back soreness. Dr. Crouse continued
to treat claimant with anti-inflammatories and cortisone injections.
He subsequently referred claimant to the Mayo Clinic for further
evaluation. On March 25, 1993, L.F.A. Peterson, M.D., diagnosed
claimant as having right knee medial compartment osteoarthritis
associated with a complex tear of the entire medial meniscus per an MRI
performed on March 23, 1993. On July 22, 1993, claimant underwent an
arthroscopic partial meniscectomy and removal of the loose body in the
right knee. On August 2, 1993, claimant was released to return to work
on a part-time basis as of September 1, 1993. Dr. Crouse opined in his
deposition that claimant's need for removal of the medial meniscus in
July of 1993 resulted from the defect in the medial femoral condyle
rubbing against the meniscus and causing it to deteriorate and tear.
He stated that for that reason claimant's work injury was a material
factor in bringing about the need for the July 1993 surgery. It is
expressly found that claimant is entitled to payment of costs including
parking and mileage costs related to her treatment at the Mayo Clinic
and Rochester Methodist Hospital. Claimant's July 1993 surgery and
medical care at Mayo preceding the surgery and subsequent to the
surgery is found to be reasonable and necessary treatment related to
the work-related knee condition and treatment received upon referral
from an authorized treating physician. It is further expressly found
that claimant is entitled to payment of healing period disability
benefits from July 22, 1993 through September 7, 1993. For reasons to
be discussed further below, the record does not reflect that claimant
could not have been engaging in sedentary, income-producing activities
from May 11, 1992 through July 21, 1993.
Dr. Crouse last saw claimant on March 30, 1990. He believed she was
getting along reasonably well at that time although she continued to
have knee discomfort and swelling with increased activity and low back
discomfort with standing, bending and lifting. His diagnosis was
chronic low back sprain and post-traumatic right knee degenerative
arthritis. Dr. Crouse opined that claimant likely would have
persistent low back soreness and persistent right knee problems with
both tibial osteotomy with realignment of the knee and total knee
arthonoplasty likely in the future.
In his deposition, Dr. Crouse opined that claimant, as a combined
result of both her knee and back condition, should not lift more than
25 pounds occasionally and should not stoop or climb nor should she
stand greater than six hours or walk greater than three hours in any
work day. He also stated that on account of the back alone claimant
would be restricted from repetitive bending, stooping and heavy
lifting. He reported that, as regards the back, claimant was advised
to move about intermittently throughout the day changing position every
15 minutes, if possible, and taking 15 minute breaks and lunch breaks.
Dr. Crouse opined that claimant's low back pain relates to her fall in
September 1990. He further stated that under the AMA Guides To The
Evaluation of Permanent Impairment, fourth edition, claimant has a 9
percent body as a whole impairment on account of her knee condition and
5 percent body as a whole impairment on account of her back condition
resulting in a combined value impairment of 14 percent of the body as a
whole.
Dr. Crouse stated that with a good result from total knee replacement
claimant would walk without a limp and would have more normal standing
and walking. He believed that while an abnormal gait would stress the
back and aggravate claimant's back pain that claimant would continue to
have low back soreness even with a "normal" knee. He agreed that being
overweight aggravates back pain and indicated that degenerative changes
in the lumbosacral spine are not unusual for an individual of
claimant's age.
Dr. Crouse's office notes reflect that claimant complained of back pain
intermittently from September 1990 through March 30, 1994. Apparently
claimant did not have radicular pain. The notes do not reflect any
active treatment for claimant's back either by way of prescribed
medications, prescribed diagnostic testing, or prescribed physical
therapy or other rehabilitation programs.
W. John Robb, M.D., examined claimant's right knee on September 5,
1991. He then noted that her ligaments were intact and that she did
not have joint effusion or joint tenderness along either the medial or
lateral plateaus. Knee range of motion was equal in both the left and
right knee with flexion to 55 degrees and full extension without
crepititus or patella grading. Dr. Robb opined that February 21, 1990
x_rays of the knee showed early degenerative changes in the medial
joint and this represented early degenerative arthritis that preexisted
claimant's January 15, 1990 injury. He stated this condition would
have progressed regardless of claimant's fragment loosening and that,
therefore, her injury represented an aggravation of a preexisting
condition. Dr. Robb opined that claimant had a fourteen percent
permanent partial impairment of the right lower extremity with seven
percent of that impairment attributable to her January 15, 1990
aggravation of her condition and subsequent surgery.
Arnold Delbridge, M.D., examined claimant on February 14, 1992.
Claimant then reported back pain periodically when her knee flared up.
Dr. Delbridge opined that claimant should expect some knee symptoms
given her knee pathology. He noted that on exam claimant had no
effusion and had full extension and flexion and walked without a limp.
Dr. Delbridge characterized claimant's prognosis as guarded and stated
that claimant would have very gradual return to normal activities and
would have gradual degenerative changes within the knee. Dr. Delbridge
opined that claimant had a ten percent permanent partial impairment of
the right lower extremity.
John S. Koch, M.D., a board certified orthopedic surgeon, saw claimant
for independent medical examination on December 17, 1992. On
examination claimant could bear her full weight while standing solely
on the right lower extremity and had full range of motion of that knee.
Low back x_rays showed mild hypertrophic bone changes, that is, wear
and tear changes, at the third and fourth intervertebral joint space.
The doctor, in his deposition, opined that these preexisted the January
13, 1990 date of injury.
On December 23, 1992, Dr. Koch stated that claimant's activity
limitations would relate primarily to her knee and not her back
condition. He believed claimant's back complaints were consistent with
claimant's size and age and could be handled medically with appropriate
physical control. On January 12, 1993, Dr. Koch opined that claimant's
low back difficulties were temporary aggravations or flare-up of her
preexisting degenerative condition.
In his deposition, Dr. Koch opined that he saw a number of ladies in
their fifties with complaints of low back pain who had not had
significant trauma. He stated that he had assigned claimant a 5
percent body as a whole permanent partial impairment of the lumbosacral
spine as a result of her mild degenerative changes and her full back
range of motion without neurologic or abnormality. Dr. Koch opined
that claimant's excess body weight was a factor in her degenerative
spinal changes. Dr. Koch reported he placed no permanent restrictions
on claimant as a result of her low back complaints and would not have
given her permanent restrictions by nature of her occupation. He
further opined that a tibial osteotomy/joint arthroplasty would likely
reduce claimant's low back complaints but would not end them given
claimant's degenerative changes and her weight, both of which would
generate complaints of low back pain. Dr. Koch opined that with the
prescribed back program and weight loss claimant could maximize her
back performance capacity. Dr. Koch opined that a 25 pound lifting
restriction on an intermittent basis was reasonable for claimant given
the persistence of claimant's weight, further aging and her
degenerative spinal condition. He reported that he would consider
claimant's low back impairment permanent and stated that complaints of
back pain are almost universal with a depressive disorder. He further
stated that persistent difficulty with the knee would tend to allow
continuing back complaints. He would accept as a "possibility" that
claimant sustained a low back strain in her September 1990 fall.
Dr. Koch further opined that claimant could perform the duties of a
desk nurse stating that these are primarily secretarial. He opined
that sitting for six hours per day would cause problems for anyone.
Given claimant's weight and physical condition, claimant would likely
be more symptomatic or in more physical discomfort than would an
individual with normal physical makeup. Dr. Koch stated that claimant
could bend from the back although she could not bend from the knee.
Dr. Koch opined that claimant had a 14 percent permanent partial
impairment of the right lower extremity with 50 percent of such
attributable to preexisting arthritis in the knee.
On May 17, 1992, Dr. Crouse assigned claimant a permanent partial
impairment rating of 17 percent of the right lower extremity.
It is expressly found that claimant has permanent partial impairment of
17 percent of right lower extremity on account of her knee condition.
This finding reflects the opinion as to permanent partial impairment of
claimant's knee of her treating physician, Dr. Crouse. This is
consistent with claimant's two surgeries on account of her condition
and claimant's reported actual loss of use of the knee. The record
does not reflect that claimant had any additional impairment on account
of her 1993 surgery.
It is expressly found that claimant has not established that her low
back condition represents a permanent condition causally related to her
January 15, 1990 injury to her right knee. While claimant apparently
did have a fall which produced back pain when her knee gave out in
September 1990, continuing symptoms of back pain equally as likely
related to her depressive disorder, her degenerative spinal changes and
her weight as to that incident and continuing favoring of the knee. It
is expressly noted that claimant does not walk with an abnormal gait
and appears, per Dr. Koch's examination, capable of full weight bearing
on the right lower extremity alone.
Claimant has a depressive disorder not otherwise specified.
Additionally, claimant has taken to self medicating with alcohol,
especially wine in the evenings. Claimant testified she does so for
pain and to assist her in relieving her anxiety and attaining sleep.
Claimant has not been diagnosed as having a substance abuse disorder.
On September 25, 1991, claimant's spouse of 33 years died while
undergoing cardiac surgery.
Mark L. Bickley, D.O., claimant's family physician, saw claimant on
October 8, 1991. He characterized claimant as having an anxiety
reaction and being quite emotional during the exam. He prescribed
Xanax and noted that he and claimant had discussed her spouse's death.
Dr. Bickley again saw claimant on October 18, 1991. He characterized
her as seeming quite "mad" and anxious about her husband's death. On
November 4, 1991, Dr. Bickley stated that claimant was unable to work
from October 28 to November 10 due to her continued upset related to
her spouse's death. On November 12, 1991, Dr. Bickley stated claimant
was unable to work due to her anxiety related to her spouse's death and
on November 19, 1991, Dr. Bickley stated that claimant would be unable
to work for the next two weeks due to her continued upset. On December
4, 1991, Dr. Bickley stated claimant would be off work until she saw a
consultant for her anxiety problems. Dr. Bickley on that date referred
claimant to P.B. Raju, M.D., a board certified psychiatrist. Dr. Raju
first saw claimant on December 6, 1991. Claimant gave a history of
depression secondary to her husband's death and of having to give up
her nursing job in 1990 on account of a right knee injury. Claimant
had a family history of depression. As noted, Dr. Raju's diagnosis was
of depression not otherwise specified.
In his deposition of April 27, 1994, Dr. Raju attributed claimant's
depression to her husband's death on September 25, 1991; probably to
losing her job; and to familial predisposition to depression which
stressors brought to the surface. On further examination, he stated
that knee pain could also contribute to depression and that alcohol
abuse could contribute to depression, although it would be difficult to
opine that claimant's depressive symptomatology relates directly to
alcohol consumption.
It is expressly found that claimant's work injury of January 15, 1990
is not established as a causative factor in claimant's depression
disorder. Claimant's emotional disturbance had its onset is the
immediate sequela of her spouse's death. While claimant's emotional
state after September 25, 1991 appears to have played a significant
role in claimant's inability to continue vocationally rehabilitating
with the employer from a position as a floor nurse to a more sedentary
position, it cannot properly be said that unfortunate result was
proximately caused by claimant's work injury or her knee condition.
That result, including claimant's ultimate job termination, appears to
have been a sequela of her nonwork-related depressive disorder and not
a sequela of her work-related knee condition. It is expressly found
that claimant is not entitled to payment of costs with Dr. Raju in the
amount of $509 nor is she entitled to prescription costs set forth in
exhibit 10. All appear to be for prescriptions which either Dr. Raju
or Dr. Bickley issued and all appear to relate to claimant's emotional
disorder.
It is also expressly found that claimant has not established
entitlement to the payment of costs with L.C. Wright, D.C. Any costs
related to care for the knee were not authorized costs. Any costs
related to claimant's low back complaints have not been established as
causally related to claimant's January 15, 1991 injury.
It is expressly found that claimant is entitled to costs for crutches
in the amount of $15.59.
CONCLUSIONS OF LAW
We first consider the question of whether a causal relationship exists
between claimant's January 15, 1990 work injury and claimed body as a
whole disability to her back and her psyche.
The claimant has the burden of proving by a preponderance of the
evidence that the injury is a proximate cause of the disability on
which the claim is based. A cause is proximate if it is a substantial
factor in bringing about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal connection is
probable rather than merely possible. Blacksmith v. All-American,
Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc.,
215 N.W.2d 296 (Iowa 1974).
The question of causal connection is essentially within the domain of
expert testimony. The expert medical evidence must be considered with
all other evidence introduced bearing on the causal connection between
the injury and the disability. The weight to be given to any expert
opinion is determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as other
surrounding circumstances. The expert opinion may be accepted or
rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa
1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
While a claimant is not entitled to compensation for the results of a
preexisting injury or disease, its mere existence at the time of a
subsequent injury is not a defense. Rose v. John Deere Ottumwa Works,
247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting
condition or disability that is materially aggravated, accelerated,
worsened or lighted up so that it results in disability, claimant is
entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115
N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369,
112 N.W.2d 299 (1961).
The right of an employee to receive compensation for injuries sustained
is statutory. The statute conferring this right can also fix the amount
of compensation payable for different specific injuries. The employee
is not entitled to compensation except as the statute provides. Soukup
v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
Compensation for permanent partial disability begins at termination of
the healing period. Section 85.34(2). Permanent partial disabilities
are classified as either scheduled or unscheduled. A specific
scheduled disability is evaluated by the functional method; the
industrial method is used to evaluate an unscheduled disability. Simbro
v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle
Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252
Iowa 128, 106 N.W.2d 95 (1960).
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).
Where psychological condition is caused or aggravated by a scheduled
injury the injury is compensable as a nonscheduled injury. Moritmor v.
Purhoff Corp., N.W.2d (Iowa 1993).
Claimant has not established a causal relationship between her January
15, 1990 injury and claimed permanent disability to her low back.
Claimant has not established a causal relationship between her January
15, 1990 injury and claimed disability as a result of her depression,
not otherwise specified.
We reach the question of claimant's disability entitlement.
Iowa Code section 85.34(1) provides that healing period benefits are
payable to an injured worker who has suffered permanent partial
disability until (1) the worker has returned to work; (2) the worker is
medically capable of returning to substantially similar employment; or
(3) the worker has achieved maximum medical recovery. The healing
period can be considered the period during which there is a reasonable
expectation of improvement of the disabling condition. See Armstrong
Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981).
Healing period benefits can be interrupted or intermittent. Teel v.
McCord, 394 N.W.2d 405 (Iowa 1986).
A worker is entitled to 220 weeks of permanent disability compensation
for loss of use of the leg.
Claimant is entitled to healing period benefits from January 23, 1990
through a stipulated medical improvement date of November 13, 1990.
Claimant is entitled to healing period benefits from July 22, 1993
through September 7, 1993.
Claimant is entitled to permanent partial disability benefits of 17
percent of the leg, representing a weekly benefit entitlement of 37.4
weeks.
We consider the question of entitlement to payment of medical costs
incurred.
The employer shall furnish reasonable surgical, medical, dental,
osteopathic, chiropractic, podiatric, physical rehabilitation, nursing,
ambulance and hospital services and supplies for all conditions
compensable under the workers' compensation law. The employer shall
also allow reasonable and necessary transportation expenses incurred
for those services. The employer has the right to choose the provider
of care, except where the employer has denied liability for the injury.
Iowa Code section 85.27. Holbert v. Townsend Engineering Co.,
Thirty-second Biennial Report of the Industrial Commissioner 78
(Review-reopen 1975).
Claimant is entitled to payment of medical expenses as follows:
Mayo Clinic $1,665.60
4,051.70
Rochester Methodist Hospital 886.75
Crutch rental 15.59
Claimant is entitled to parking expenses in the amount of $14.00
related to her treatment at Mayo Clinic.
Claimant is entitled to mileage reimbursement at the rate of $.21 per
mile related to treatment or examination with Dr. Crouse, Dr.
Delbridge, Dr. Robb, Dr. Koch and the Mayo Clinic. These amounts total
$356.79 (1,699 x $.21).
ORDER
THEREFORE, it is ordered:
Defendants pay claimant permanent partial disability benefits for
thirty_seven point four (37.4) weeks at the rate of two hundred
seventy_five and 74/100 dollars ($275.74) with those payments to
commence on November 13, 1990.
Defendants pay claimant healing period benefits at the rate of two
hundred seventy_five and 74/100 dollars ($275.74) from January 23, 1990
through November 12, 1990, and from July 22, 1993 through September 7,
1993.
Defendants receive credit for benefits previously paid.
Defendants pay any accrued amounts in a lump sum.
Defendants pay claimant mileage and parking expenses as set forth in
the above conclusions of law.
Defendants pay medical costs as set forth in the above conclusions of
law.
Defendants pay any accrued interest pursuant to Iowa Code section
85.30.
Defendants pay costs pursuant to rule 343 IAC 4.33.
Defendants file claim activity reports as the agency orders.
Signed and filed this ____ day of December, 1994.
________________________________
HELENJEAN M. WALLESER
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Robert C Andres
Attorney at Law
616 Lafayette St
P O Box 2634
Waterloo IA 50703
Mr Fred L Morris
Attorney at Law
405 Sixth Ave Ste 700
Des Moines IA 50309
1108; 1108.20; 1108.50;
1803.1; 1806; 2501
Filed December 8, 1994
Helenjean M. Walleser
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
MARY HUEBNER,
Claimant, File No. 966127
vs. A R B I T R A T I O N
COVENANT MEDICAL CENTER, D E C I S I O N
Employer,
Self-Insured,
Defendant.
________________________________________________________________
1108; 1108.20; 1108.50; 1803.1; 1806
Claimant did not establish that depressive order not otherwise
specified resulted from a work-related knee injury. Claimant's
depressive disorder had its onset in her spouse's untimely death.
While claimant's depressive disorder made it difficult for claimant to
work with the employer in vocational rehabilitation to a less sedentary
position with the employer and played a role in claimant's ultimate
termination of employment those results appear to be a sequela of the
depressive disorder itself and not conditions which produced the
depressive disorder.
Claimant's complaints of low back discomfort not shown to be causally
related to a work injury to the knee where claimant was overweight, had
degenerative disc disease on x_ray examination which level of
degeneration was consistent with claimant's age (early 50s) and
excessive weight (5' 4", 190 pounds). Additionally, while claimant's
office notes with the treating orthopedic surgeon reflected that
claimant did have a fall at home with back complaints after her knee
came out and that claimant did complain intermittently of back pain
subsequent to that fall, claimant received no active treatment for any
back complaints.
While claimant had preexisting osteochondritis dessicans and
preexisting arthritis in her knee, claimant was asymptomatic prior to
her work incident. Bearce followed in holding that apportionment of
disability was inappropriate in that claimant had had no loss of use of
her leg prior to the work incident.
2501
Second arthroscopic surgery found to be reasonable and necessary care.
The surgery related back to the original work incident and increased
claimant's comfort level.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
CAROL WEISENBERGER,
Claimant, File No. 966128
vs. A P P E A L
COVENANT MEDICAL CENTER, D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal. The decision of the deputy
filed July 15, 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 February, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert D. Fulton
Attorney at Law
P.O. Box 2634
Waterloo, Iowa 50704
Mr. Fred L. Morris
Attorney at Law
P.O. Box 9130
Des Moines, Iowa 50306-9130
1108; 1803; 1806
Filed February 28, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
CAROL WEISENBERGER,
Claimant, File No. 966128
vs. A P P E A L
COVENANT MEDICAL CENTER, D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
1108; 1803; 1806
Claimant did establish an injury arising out of and in
the course of her employment where claimant had a
preexisting low back condition and where claimant's symptoms
and need for a medical intervention substantially increased
subsequent to the work incident. Defendant was not entitled
to apportionment of any portion of the industrial
disability. Claimant had maintained her employment and her
wages subsequent to a return to work after treatment for the
preexisting low back condition to the work incident.
Claimant, who had transferable skills, who was not motivated
to upgrade her skills, and whom the employer accommodated
and who had an actual loss of earnings of 30 cents per hour
awarded 15 percent industrial disability. Claimant's
permanent partial impairment rating after a one-level
diskectomy was 18 percent of the body as a whole. Her
restrictions did preclude her from returning to her prior
work as a nurse's aide or a physical therapist's assistant.
The employer provided claimant work as a department
secretary. The employer was willing to accommodate claimant
as a medical secretary should claimant choose to upgrade her
skills to qualify for that position. Claimant chose not to
upgrade her skills. The record reflected that claimant
anticipated leaving work in approximately three years in
order to join her husband in retirement.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
CAROL WEISENBERGER,
Claimant,
File No. 966128
vs.
A R B I T R A T I O N
COVENANT MEDICAL CENTER,
D E C I S I O N
Employer,
Self-Insured
Defendant.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by the
claimant, Carol Weisenberger, against her self-insured
employer, Covenant Medical Center, to recover benefits under
the Iowa Workers' Compensation Act, as a result of an injury
allegedly sustained on January 31, 1989. The record
consists of the testimony of claimant, of John Weisenberger,
of Walter Svoboda, and of John Kluge as well as of joint
exhibits 1 through 10, as identified on the joint exhibit
list.
ISSUES
Pursuant to the hearing report and the oral
stipulations of the parties at hearing, the parties have
agreed to the following:
(1) An employer-employee relationship existed between
claimant and Covenant Medical Center on the alleged date of
injury;
(2) A causal relationship exists between claimant's
work incident and a period of healing period or temporary
total disability;
(3) On the alleged injury date claimant had a gross
weekly wage of $333.60; was married and entitled to four
exemptions resulting in a weekly rate of $222.61; and
(4) Defendant has paid claimant permanent partial
disability benefits representing 18 percent of the body as a
whole from December 20, 1990 to October 14, 1992.
Issues remaining for resolution are:
(1) Whether claimant did receive an injury which arose
out of and in the course of her employment on the alleged
injury date;
(2) Whether a causal relationship exists between the
alleged injury and claimed permanent disability;
(3) The nature and extent of disability benefits, if
any, due claimant including the question of entitlement to
Page 2
permanent partial disability benefits beyond those already
paid and the question of entitlement to healing period or
temporary total benefits beyond those already paid; and
(4) Whether any of claimant's claimed permanent
partial disability should be apportioned to a preexisting
condition.
FINDINGS OF FACT
The deputy, having heard the testimony and considered
the evidence, finds:
Claimant is 43 years old and a high school graduate.
She completed a refresher typing course at technical college
in 1991. Claimant has intermittently worked at Covenant
Medical Center or its predecessor hospitals from 1971
onward. Initially she worked as a nurse's aide and
subsequently worked as a physical therapist's aide until her
physical restrictions precluded her continuing in that
capacity. She currently works as the intake secretary in
one of Covenant's physical therapy departments. Both
claimant's duties as a nurse's aide and claimant's duties as
a therapy aide had required claimant engage in physical
strenuous lifting and other maneuvers relative to her
patients.
Claimant initially treated with David Poe, M.D., a
board certified orthopedic surgeon in May 1988. Claimant
complained of severe and unremitting low back pain which
radiated into both SI joints. She had no leg pain
complaints. Claimant gave a history of an onset of this
pain after a long car trip and then washing and carrying
seven loads of laundry. Claimant had excellent range of
motion and a normal neurologic exam. CT scan of May 5,
1998, was interpreted as showing a bulging, "protruding"
L4-5 disc.
The record also reflects that claimant was off work and
received physical therapy for severe unremitting low back
pain from March 1988 through May 1988. Claimant
subsequently returned to work as a physical therapy aide in
spring or summer 1988. Claimant did not recall having
restrictions on her activities when she returned to work in
1988.
Claimant recalled a work incident in November or
December 1989 where she experienced back pain after holding
upright a patient who "wanted to sit."
On January 31, 1989, claimant was attempting to throw a
bag of laundry weighing between 30 and 40 pounds into a bin.
She felt a "pop" in her back. She finished her workday but
could not return on the following day. Dr. Poe subsequently
hospitalized claimant for conservative care from February 1,
1989 to approximately February 18, 1989.
HoSung Chung, M.D., a neurologist, first saw claimant
on February 1, 1989. Claimant gave a history of having had
progressively worse low back pain for approximately two to
Page 3
three years with intermittent recurrences of pain and of
having had a last recurrence approximately three weeks prior
to the admission after lifting a heavy patient at work.
Claimant reported that, after that lifting incident, her low
back pain had gradually worsened and radiated into both
legs.
Dr. Chung interpreted an MRI study performed February
8, 1989, as showing a midline herniated disc at the L4-5
level. In his deposition taken February 11, 1993, Dr. Chung
opined that May 5, 1988 CT scan showed a very small,
triangular, soft tissue density lesion, suggestive of a
herniated disc at L4-5 on the left, that is, the same thing
as was observed on the February 9, 1989 MRI study.
John C. VanGilder, M.D., a neurosurgeon at the
University of Iowa Hospital and Clinics, initially examined
claimant on March 3, 1989. Dr. VanGilder interpreted
claimant's MRI study of February 8, 1989, as showing a
bulging L4-5 disc and not a herniated disc. Claimant had
flexion to 80 degrees, bilateral straight leg raising to 90
degrees and full strength of the lower extremities with no
evidence of muscle atrophy or sensory deficit. Dr.
VanGilder noted that claimant's disc bulge was on the right
side, which was atypical, given that claimant was more
symptomatic relative to the left leg.
Claimant did not improve. In August 1989, Dr. Chung
performed a hemilaminectomy with excision of a herniated
disc at L4-5 bilaterally. Claimant initially returned to
work on a four hour per day basis in December 1989. She
gradually increased her work hours from four to six and
finally to eight per day. Dr. Chung opined that claimant
reached maximum medical improvement approximately one year
subsequent to her surgery. Dr. Chung assigned claimant a 18
percent permanent partial impairment rating to the body as a
whole. In his deposition, the doctor indicated this
impairment rating was due to claimant's herniated disc such
as was seen on the CT scan in 1988 and the MRI in 1989. Dr.
Chung opined that both lifting a patient and picking up a
towel would aggravate previous lumbar disc disease. Dr.
Chung indicated that, as of August 1990, he restricted
claimant from heavy lifting, pushing, pulling, bending, and
prolonged sitting. He further stated he would have imposed
similar restriction on claimant in 1988. Dr. Chung opined
that pursuant to the AMA Guides, Third Revised Edition,
claimant had a five percent permanent partial impairment to
the body as a whole in 1988. Chung agreed that claimant's
work subsequent to January 1989 could have "harmed" her
herniated disc and that a long car trip and carrying seven
loads of laundry could also have produced a herniated disc.
Dr. VanGilder re-examined claimant in July 1990. He
again found no evidence of muscle atrophy or sensory
deficit. He opined that claimant's low back pain was mainly
muscular in origin and might be secondary to her previous
degenerative changes at L4-5.
Dr. Poe testified by way of his deposition taken August
14, 1992. Dr. Poe opined that it was not possible to
Page 4
characterize any single event as the cause of claimant's
disc condition. He felt that claimant's disc condition
resulted from a lifetime of wear and tear and from "being
forty". He further opined, however, that claimant's lifting
in January 1989 at work aggravated her degenerative disc
disease. Poe believed that claimant's May 1988 low back
episode left claimant with continued midline low back pain
which was not unlike the pain claimant experienced in 1989
subsequent to lifting a patient. Poe opined that one would
reasonably anticipate recurrent episodes of midline low back
pain associated with bending in cases where degenerative
disc disease has been diagnosed.
Claimant currently earns $9.19 per hour which she
characterized as approximately 30 percent less she would be
earning as a therapist's assistant. Claimant opined that
she could not perform work as a nurse's aide or therapist's
assistant given her restrictions.
On direct examination, claimant indicated that she had
been prepared to work as a physical therapist's assistant
until age 62. On cross-examination, claimant agreed that
her spouse will be retiring from his job in three years and
that her actual plans are to leave work when her spouse
retires.
Claimant originally returned to work at Covenant as a
departmental secretary. That position required
transcription of medical records. Claimant did not do
transcription as part of her duties. Claimant, for that
reason, was reclassified as charge secretary with a
subsequent pay reduction. Claimant expressed her opinion
that working towards the position of medical secretary would
require her taking classes. Claimant stated that she did
not know whether she wanted to sit and type all day and that
an advantage of her current charge secretary job is that it
allows her to get up and move about.
It is now possible for an individual to become a state
licensed physical therapy assistant. Persons with 1,000
hours or four years of experience as physical therapist's
assistant can be grandparented in provided they pass a state
licensing examination on a first or second attempt at the
examination. Theresa Hodgeon, who has been a physical
therapist assistant for nineteen years and who knew claimant
as a co-worker testified that she was licensed as a
therapist assistant under the grandparenting clause. She
indicated that the examination was three hours long and
difficult. Ms. Hodgeon prepared for the examination by
taking an anatomy course and by doing additional self-study.
Ms. Hodgeon's pay increased by $3 per hour when she attained
the status of licensed physical therapist assistant.
Claimant had worked sufficiently long as a regular
therapist's assistant that she would have qualified under
the grandparenting clause. It would be speculative to
indicate that claimant would have attempted or attained
licensure but for her injury, however. Claimant's stated
desire to leave work in three years and her stated lack of
desire to continue with additional course work in order to
perform the duties of a medical secretary raise questions as
Page 5
to whether claimant would have been motivated to do the
self-study and course work necessary to prepare for the
licensing examination.
CONCLUSIONS OF LAW
Our first concern is whether claimant received an
injury which arose out of and in the course of her
employment on January 31, 1989.
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, its mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76
N.W.2d 756 (1956). If the claimant had a preexisting
condition or disability that is materially aggravated,
accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962);
Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112
N.W.2d 299 (1961).
Sufficient credible evidence exists in the record to
establish that, while claimant had a preexisting back
condition which manifested itself at least as early as March
1988, claimant did experience significant aggravation of
that condition while lifting laundry on January 31, 1989
such that claimant did sustain an injury arising out of and
in the course of claimant's employment on that date.
The fighting issues between the parties appear to be
that of causal relationship between the January 31, 1989
injury and claimed disability and the question of
apportionment of any permanent disability due between the
residuals of the January 31, 1989 incident and claimant's
preexisting condition.
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
Page 6
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
Both Dr. Poe and Dr. Chung equivocate as regards the
relationship between claimant's January 31, 1989 work
incident, her disc and her current residuals. Both agree
that claimant had a degenerative disc at L4-5 on CT
examination in May 1988. Dr. Poe chooses to characterize
the condition as a bulging disc, Dr. Chung as a herniated
disc. Dr. Chung believes the finding in the 1988 CT scan
was essentially similar to the finding on MRI examination in
February of 1989. While the doctors' equivocation creates
confusion in the record, which confusion disfavors
claimant's position, the chronology of events establishes
that claimant had significantly more severe problems and
required significantly more substantial treatment, including
a seventeen day hospitalization and subsequent, additional
hospitalization and surgery after January 31, 1989.
Furthermore, claimant had been able to return to work and
fulfill her duties until January 31, 1989. These facts
establish that it is more probable than not that claimant's
need for surgical intervention as regards her degenerative
disc disease and the subsequent residuals regarding that
disease relate to the January 31, 1989 injury. Claimant has
established the requisite causal connection between her
January 31, 1989 injury and her claimed permanent
disability.
We consider the question of apportionment of any
industrial disability between claimant's preexisting
condition and her work injury of January 31, 1989.
Apportionment of disability between a preexisting
condition and an injury is proper only when some
ascertainable portion of the ultimate industrial disability
existed independently before an employment-related
aggravation of disability occurred. Bearce v. FMC Corp.,
465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v.
Sumner, 353 N.W.2d 407 (Iowa 1984). Hence, where employment
is maintained and earnings are not reduced on account of a
preexisting condition, that condition may not have produced
any apportionable loss of earning capacity. Bearce, 465
N.W.2d at 531. Likewise, to be apportionable, the
preexisting disability must not be the result of another
injury with the same employer for which compensation was not
paid. Tussing v. George A. Hormel & Co., 461 N.W.2d 450
(Iowa 1990).
The burden of showing that disability is attributable
to a preexisting condition is placed upon the defendant.
Where evidence to establish a proper apportionment is
Page 7
absent, the defendant is responsible for the entire
disability that exists. Bearce, 465 N.W.2d at 536-37;
Sumner, 353 N.W.2d at 410-11.
Defendant has not carried the burden of establishing
that any disability is attributable to claimant's
preexisting condition. The disability with which we are
concerned here is industrial disability. Dr. Chung has
indicated that claimant had a functional disability of five
percent in 1988. However, although claimant was apparently
off work in 1988, while undergoing treatment for her
preexisting condition, claimant returned to her full duty
employment once the need for treatment resolved. Her
earnings were not reduced. The record does not demonstrate
claimant could not have continued to perform her duties had
she not experienced the January 31, 1989 work incident.
Hence, defendant has produced insufficient evidence to
establish that any of claimant's ultimate industrial
disability properly is apportionable to her preexisting
condition.
We consider claimant's healing period entitlement.
Section 85.34(1) provides that healing period benefits
are payable to an injured worker who has suffered permanent
partial disability until (1) the worker has returned to
work; (2) the worker is medically capable of returning to
substantially similar employment; or (3) the worker has
achieved maximum medical recovery. The healing period can
be considered the period during which there is a reasonable
expectation of improvement of the disabling condition. See
Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa
Ct. App. 1981). Healing period benefits can be interrupted
or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa
1986).
Claimant actually returned to work in December 1989.
Under section 85.34(1) that would have been the first to
occur of the three events which potentially terminate
healing period benefits. Hence, claimant's healing period
entitlement ends on the day immediately subsequent to her
first day of partial employment in December 1989.
The record does reflect that claimant returned to work
initially on four hour days and then on six hour days and
ultimately increased to eight hour days. Claimant, of
course, would be entitled to temporary partial benefits
pursuant to section 85.33(4) during those times in which
claimant worked less than full duty, that is, less than
eight hours per day. The parties have not stipulated to
those dates and those dates cannot be adequately ascertained
from this record, however. Permanent partial disability
benefits would probably commence on the day on which
claimant returned to full duty work at eight hours per day.
Again, that day cannot be adequately ascertained from the
record submitted at hearing. Additionally, it is noted
that, should that date have been after August 2, 1990,
claimant's healing period probably would end on August 2,
1990 when Dr. Chung indicated that claimant had reached
maximum medical improvement. This follows because, that
Page 8
event, achievement of maximum medical improvement, properly
must be characterized as occurring before a return to work
since in this situation commencement of permanent partial
disability prior to claimant's returning to work on a eight
hour per day basis would result in claimant receiving
simultaneous payments of temporary partial disability and
permanent partial disability on account of the same injury.
That result would be contrary to the intent underlying
sections 85.33 and 85.34.
We consider the question of claimant's industrial
disability entitlement.
Since claimant has an impairment to the body as a
whole, an industrial disability has been sustained.
Industrial disability was defined in Diederich v. Tri-City
Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It
is therefore plain that the legislature intended the term
`disability' to mean `industrial disability' or loss of
earning capacity and not a mere `functional disability' to
be computed in the terms of percentages of the total
physical and mental ability of a normal man (sic)."
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications,
experience, motivation, loss of earnings, severity and situs
of the injury, work restrictions, inability to engage in
employment for which the employee is fitted and the
employer's offer of work or failure to so offer. Olson v.
Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963);
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980);
Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660
(1961).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
Claimant's physician has assigned claimant a moderately
severe functional impairment rating. Claimant's
restrictions are consistent with that rating and do preclude
claimant from returning to past work either as a therapist's
assistant or a nurse's aide. Claimant's employer has
accommodated claimant by providing her with work within her
restriction, which work has apparently resulted in an
approximately 30 cents per hour reduction in claimant's
earnings from those she would now be earning as a
therapist's assistant. The employer apparently also has
opportunities where claimant potentially could advance to
the higher wage job of medical secretary were claimant
motivated to pursue additional training or additional skills
development. Claimant is not motivation to do so. Claimant
appears content to continue working for the employer until
she can leave work to join her husband in retirement.
Claimant's past work experience with the employer and the
employer's willingness to accommodate claimant have served
claimant in good stead and minimized her actual loss of
Page 9
earnings on account of her injury. Claimant's ability to
transfer and further develop new skills within her
restrictions and functional limitation, of itself,
demonstrates that claimant's loss of earnings capacity is
less than would be the case were claimant by education,
qualifications, and work experience suited for heavier
physical labor only. Claimant's industrial disability on
account of her work-related condition is 15 percent of the
body as a whole. As defendant has already paid 18 percent
permanent partial disability, claimant is entitled to no
further benefits for permanent partial disability from
defendant unless defendant improperly calculated the
commencement date for permanent partial disability benefits
such that claimant has currently received less than 15
percent permanent partial disability benefits.
ORDER
THEREFORE, IT IS ORDERED:
Defendant pay claimant temporary partial disability
benefits at the appropriate rate for those periods after
claimant returned to work in which claimant worked less than
eight (8) hours per day.
Defendant pay claimant permanent partial disability
benefits at the rate of two hundred twenty-two and 61/100
dollars ($222.61) from the date on which claimant first
worked a full eight (8) hours per day or from August 2,
1990, which ever date was first to occur for a period of
seventy-five (75) consecutive weeks.
Defendant receive credit for permanent partial
disability benefits previously paid.
Claimant and defendant share equally in the costs of
this action.
Defendant file claim activity reports as the agency
orders.
Signed and filed this ____ day of July, 1993.
______________________________
HELENJEAN M. WALLESER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Robert D. Fulton
Attorney at Law
PO Box 2634
Waterloo, IA 50704-2634
Mr. Fred L. Morris
Attorney at Law
Suite 300 Fleming Bldg.
Page 10
218 Sixth Ave.
PO Box 9130
Des Moines, IA 50306-9130
1108; 1803; 1806
Filed July 15, 1993
Helenjean M. Walleser
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________
CAROL WEISENBERGER,
Claimant,
File No. 966128
vs.
A R B I T R A T I O N
COVENANT MEDICAL CENTER,
D E C I S I O N
Employer,
Self-Insured
Defendant.
___________________________________________________________
1108; 1803; 1806
Claimant did establish an injury arising out of and in
the course of her employment where claimant had a
preexisting low back condition and where claimant's symptoms
and need for a medical intervention substantially increased
subsequent to the work incident. Defendant was not entitled
to apportionment of any portion of the industrial
disability. Claimant had maintained her employment and her
wages subsequent to a return to work after treatment for the
preexisting low back condition to the work incident and was
not able to return to work from the work incident onward.
Claimant, who had transferable skills, who was not motivated
to upgrade her skills, and whom the employer accommodated
and who had an actual loss of earnings of 30 cents per hour
awarded 15 percent industrial disability. Claimant's
permanent partial impairment rating after a one-level
diskectomy was 18 percent of the body as a whole. Her
restrictions did preclude her from returning to her prior
work as a nurse's aide or a physical therapist's assistant.
The employer provided claimant work as a department
secretary. The employer was willing to accommodate claimant
as a medical secretary should claimant choose to upgrade her
skills to qualify for that position. Claimant chose not to
upgrade her skills. The record reflected that claimant
anticipated leaving work in approximately three years in
order to join her husband in retirement.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
HAUN KIM ONG,
Claimant,
vs.
File No. 966303
RAPIDS CHEVROLET,
A P P E A L
Employer,
D E C I S I O N
and
CIGNA INSURANCE COMPANY,
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 October 18, 1993 is affirmed and is adopted as the
final agency action in this case with the following
additional analysis:
Claimant bears the burden of proof to show that he suffered
a head injury on January 9, 1990 that resulted in his
present mental condition.
The evidence shows that claimant was involved in an
altercation on January 9, 1990. Although claimant asserts
he hit his head on a concrete floor in the altercation, the
other participant in the altercation testified that claimant
hit his buttocks only. Co-workers confirmed that dust
appeared on claimant's buttocks, but not on the shoulder
area of his clothing after the incident.
Claimant went to the hospital emergency room later that
night. The examining nurse and physician could find no
evidence of a head injury.
Subsequently, various objective tests, including an MRI,
EEG, and CT scan all showed normal results. Claimant has
failed to carry his burden to show that he suffered a head
injury on January 9, 1990.
Page 2
Even assuming claimant had met his burden to show a head
injury, claimant also bears the burden to show that his
present mental condition is causally connected to his
January 9, 1990 injury. Claimant relies on the testimony of
Dr. Penningroth, who does offer an opinion that claimant's
current schizophrenia is caused by the January 9, 1990
incident. However, Dr. Penningroth also acknowledges that
there is no objective indication of a head injury in
claimant's case. Dr. Penningroth appears to base his
opinion in large part on the fact that claimant is from a
foreign cultural background rather than factors related to
the alleged injury. Finally, Dr. Penningroth diagnosed
claimant's condition as a non-organic psychotic reaction.
Dr. Penningroth is not a board certified psychiatrist or
specialist.
Dr. Jones, a neuropsychologist, has opined that claimant's
current mental condition is not caused by his alleged
January 9, 1990 injury. Dr. Larsen, a psychiatrist, has
also opined that claimant's schizophrenia is not related to
his alleged injury. Dr. Larsen noted that claimant's
behavior patterns prior to the injury, including
aggressiveness and bravado, were consistent with the early
phases of schizophrenia.
The findings of Dr. Larsen and Dr. Jones indicate that
claimant did not exhibit a rapid onset of symptoms that
gradually improved, as normally would be seen in head
injuries. Rather, claimant had gradual onset and worsening
of symptoms, which is more indicative of non-organic
(non-injury) mental illness. In addition, the record
discloses that individuals with a close family member
suffering from schizophrenia are more likely to suffer the
condition themselves. Claimant's brother has been diagnosed
as suffering from schizophrenia.
Although claimant has relied on a theory of a physical
injury that caused a mental condition, Dr. Larsen also noted
that there was no indication that claimant's schizophrenia
was caused by stressors that might have caused a mental
injury.
Claimant offered testimony from witnesses that his behavior
changed after the alleged injury. A change of behavior is
as consistent with a worsening of non-organic schizophrenia
as it would be for a schizophrenia caused by a head injury.
The opinions of Dr. Jones and Dr. Larsen will be given
greater weight than that of Dr. Penningroth. Claimant has
failed to carry his burden of proof to show that he suffered
a head injury on January 9, 1990. Claimant has also failed
to carry his burden of proof to show that he has suffered a
mental condition caused by a work injury on January 9, 1990.
Page 3
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of March, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Michael M. Lindeman
Attorney at Law
4920 Johnson Ave. NW
Cedar Rapids, Iowa 52405
Mr. Douglas R. Oelschlaeger
Attorney at Law
P.O. Box 2107
Cedar Rapids, Iowa 52406
2200; 1108.20
Filed March 29, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
HAUN KIM ONG,
Claimant,
vs.
File No. 966303
RAPIDS CHEVROLET,
A P P E A L
Employer,
D E C I S I O N
and
CIGNA INSURANCE COMPANY,
Insurance Carrier,
Defendants.
____________________________________________________________
2200
Held on appeal that claimant failed to show he suffered a
head injury. Claimant was in an altercation with a
co-worker. Claimant alleged he hit his head in the
incident, but this was contradicted by other witnesses and
by the medical evidence.
1108.20
Held that even if claimant had suffered a head injury, he
failed to show that his current psychological condition was
caused by any such injury. the greater weight of the
evidence indicated that claimant's mental condition was
caused by hereditary, organic factors and not an injury.