BEFORE THE IOWA INDUSTRIAL COMMISSIONER
GEORGE REDD,
Claimant,
vs.
File No. 966304
LAMONT LIMITED,
Employer, A P P E A L
and D E C I S I O N
USF & G,
Insurance Carrier,
Defendants.
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal.
ISSUE
The issue on appeal is:
Whether claimant has proved that he sustained an injury which
arose out of and in the course of his employment on July 26, 1990.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed March 10, 1992 are adopted as set forth below.
Segments designated by asterisks (*****) indicate portions of the
language from the proposed agency decision that have been
intentionally deleted and do not form a part of this final agency
decision. Segments designated by brackets ([ ]) indicate language
that is in addition to the language of the proposed agency
decision.
Having considered all the evidence received, together with the
appearance and demeanor of the witnesses, the following findings
of fact are made.
REDD V. LAMONT LIMITED
Page 2
There is an irreconcilable conflict in the evidence presented by
the respective parties. Claimant asserts that he injured his low
back and neck while turning a cabinet frame which he was in the
process of assembling; that the frame weighed approximately 50
pounds; that he reported injuring his neck and back to co-worker
Lisa Rose Welborn and supervisor Jim Belger; that he spoke with
his supervisor, Belger, on the following day; and, that when he
sought medical treatment at the Fort Madison Community emergency
room on July 28, he gave a history of injuring his back and neck
while at work. At hearing, Redd told of a popping and tearing
sensation while at work on July 26, 1990, and that it was followed
by extreme pain, profuse sweating and a feeling of nausea. He
reported vomiting later on a number of occasions. Welborn and
Belger both testified at hearing to the effect that the only thing
Redd complained of on July 26, 1990, was his lower abdomen and a
kidney stone condition for which he was scheduled to be off work
and having surgery within a few days following July 26, 1990.
Belger placed the weight of the frame at 35 pounds. Redd denied
having pain from his kidney condition; his only admitted complaint
was a problem urinating. Belger testified that Redd had complained
of pain associated with the kidney condition. Welborn is no longer
employed by Lamont, but Belger is now a plant manager in the
Lamont organization.
According to Belger, his first knowledge that Redd claimed any
work-related injury or injury to his neck or back came
approximately three weeks following the kidney stone surgery at
which time Redd requested workers' compensation claim forms and
reported having crushed a vertebra on his last day of work.
A review of the exhibits in this case shows that Redd was seeking
medical care for a urinary tract problem and that his treating
urologist was Edeliro A. Escobar, M.D. The physician's records
indicate that claimant sought treatment because of increasing pain
which had its onset approximately two years earlier (Joint Exhibit
15, page 5). This record is in direct conflict with the claimant's
testimony that pain was not one of the symptoms of his urinary
tract problem. The first page of joint exhibit 15 shows that Redd
sought treatment on July 3, 1990, for pain in what was described
as his left flank area and that the assessment made was that he
had kidney stones.
The third page of exhibit 15 shows that when Redd presented
himself at the hospital on July 28, 1990, he did complain of pain
in his neck and left arm as well as nausea. The report notes that
Redd placed the onset approximately three days earlier, but also
states that there was no known trauma or previous injury. The
record shows that Redd received physical therapy treatment for his
neck complaints commencing August 13, 1990 (Jt. Ex. 15, pages 8-
10).
REDD V. LAMONT LIMITED
Page 3
A report from Charles Kennard, M.D., who attended Redd when he
first presented to the hospital emergency room on July 28, 1990,
indicates that Redd was readmitted later on July 28, 1990, under
the direction of Dr. Escobar when a urinalysis showed numerous red
blood cells (Jt. Ex. 13). The report indicates that Dr. Escobar
had apparently related to Dr. Kennard that the claimant's pain and
complaints could be a result of renal colic or renal irritation
and that, if numerous blood cells were found, it would indicate
such an irritation. The first mention of any relationship between
lifting at work and the claimant's neck pain is in a physical
therapy treatment plan report which appears to be dated on or
about August 13, 1990, a date two to three weeks after the surgery
(Jt. Ex. 15, p. 8).
Redd received treatment for his neck complaints at the University
of Iowa Hospitals and Clinics. On September 25, 1990, fusion
surgery of the claimant's C5-6 and C6-7 cervical spine was
performed. The operation record shows the existence of a large
hard osteophyte on the C5 body and a smaller osteophyte on the C6
body. Ruptured disc materials were removed (Jt. Ex. 8). The
treating surgeon, Christopher M. Loftus, M.D., has related the
cervical problem with a work-related injury (Jt. Ex. 2). Dr.
Loftus also provided an impairment rating of eight percent of the
whole person referable to the cervical condition and five percent
due to degenerative changes in the claimant's lumbar spine for a
total of thirteen percent of the whole person (Jt. Ex. 1).
During the course of claimant's treatment, he was diagnosed as
having axonel polyneuropathy of undetermined etiology which was
responsible for his lower extremity complaints (Jt. exhibits 16-
18). It is noted that, from the information available in the
record of this case, it appears as though Dr. Loftus was not aware
of the episodes of vomiting which afflicted claimant commencing on
July 26, 1990 (Jt. Ex. 3). Dr. Loftus is not shown to have had an
accurate understanding of Redd's work activities.
Redd has obtained treatment for his neck and back condition at the
Sister Kenny Institute in Minneapolis, Minnesota (Jt. Exs. 4-6).
The type of work which Redd was performing does not appear to be
the type of activity or trauma which would be expected to produce
a herniated cervical disc, cause the formation of osteophytes or
cause any degenerative lower back condition. The type of work does
not appear to be anything which could reasonably be expected to
significantly aggravate any type of preexisting degenerative
condition.****There is nothing to indicate that nausea was
produced by anything other than the urinary tract condition as is
indicated in exhibit 13.
REDD V. LAMONT LIMITED
Page 4
****[It is not probable that claimant's work aggravated
preexisting degenerative conditions in his neck and lower back.]
The claimant's denial of pain symptoms associated with his urinary
tract condition is found to be incorrect as established by the
medical records, namely exhibit 15, pages I and 5. The testimony
from claimant that he reported a popping or tearing sensation and
neck and low back pain to Lisa Rose Welborn and Jim Belger is not
sufficiently strong to outweigh their contrary testimony. It is
found that the evidence fails to show it to be more likely than
not that the onset of the claimant's neck and back symptoms began
on July 26, 1990, while he was lifting cabinet frames which he was
assembling at his place of employment.****In view of the
uncertainty regarding the history which Dr. Loftus relied upon
when expressing his opinion of causation as found in exhibit 2,
that opinion will not be relied upon to establish the existence of
a causal connection between the employment and the cervical
condition. The leg complaints appear to be very likely related to
the axonel polyneuropathy which is not shown to be a work-related
condition.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed March 10, 1992 are adopted as set forth below.
Segments designated by asterisks (*****) indicate portions of the
language from the proposed agency decision that have been
intentionally deleted and do not form a part of this final agency
decision. Segments designated by brackets ([ ]) indicate language
that is in addition to the language of the proposed agency
decision.
Claimant has the burden of proving by a preponderance of the
evidence that he received an injury on July 26, 1990, which arose
out of and in the course of his employment. McDowell v. Town of
Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel.
Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
An employee is entitled to compensation for any and all personal
injuries which arise out of and in the course of the employment.
Section 85.3(1).
The claimant has the burden of proving by a preponderance of the
evidence that the injury of July 26, 1990, is causally related to
the disability on which he now bases his claim. Bodish v. Fischer.
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boqqs,
236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient;
a probability is necessary. Burt v. John Deere Waterloo Tractor
Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal
connection is essentially within the domain of expert testimony.
Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 101 N.W.2d 167
(1960).
REDD V. LAMONT LIMITED
Page 5
While it is certainly possible that George Redd experienced the
onset of neck pain in the manner which he described at hearing,
his testimony in that regard is not corroborated by any coworker
[sic], supervisor or written medical report issued promptly
following the incident. He most certainly did have pain complaints
regarding his neck and placed those pain complaints as having
their onset on July 26, 1990. There is, however, nothing in the
early records which attributes those complaints to his employment
in any fashion. It is not until a report issued in mid-August that
any reference to his work is suggested as a source of the neck
complaints. When viewed in light of the testimony from Lisa Rose
Welborn and Jim Belger, it is determined that George Redd has
failed to prove, by a preponderance of the evidence, that he
injured his neck at work on July 26, 1990, or that his neck
condition for which he subsequently underwent surgery and remains
to have residual complaints was in any manner caused or
substantially aggravated by any part of his employment duties on
July 26, 1990, or at any other time. It is therefore concluded
that George Redd is not entitled to recover for his neck condition
or the expenses of treating that neck condition from the employer
and its insurance carrier in this case.
The record with regard to the claimant's lower back condition and
leg complaints is even less favorable to the claimant's claim than
that regarding his neck condition. The physicians attribute the
leg symptoms to a polyneuropathy of undetermined origin. They
report that they have no evidence that a spinal cord injury would
cause peripheral nerve damage of the type which claimant exhibits
(Jt. Ex. 18). In view of this, the claimant has failed to prove,
by a preponderance of the evidence, that any condition affecting
his low back or legs is related to any work injury that might have
occurred on July 26, 1990. To the contrary, the evidence fails to
support the claimant's claim of any work injury having occurred on
July 26, 1990, whatsoever.
The claimant's burden is to prove his claim by a preponderance of
the evidence. This requires that the evidence in the record show
it to be more likely than not that the claimant was injured and
that the injury produced the injury upon which this claim is
based.****[Claimant has not met his burden of proof.]
It is therefore concluded that George Redd has failed to prove, by
a preponderance of the evidence, that he sustained any injury
which arose out of and in the course of his employment with the
employer on or about July 26, 1990.
WHEREFORE, the decision of the deputy is affirmed.
REDD V. LAMONT LIMITED
Page 6
ORDER
THEREFORE, IT IS ORDERED:
That the claimant take nothing from this proceeding.
That claimant shall pay the costs of this matter including
the transcription of the hearing.
Signed and filed this 27th day of August, 1992.
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. George E. Wright
Attorney at Law
607 Eighth Street
Fort Madison, Iowa 52627
Mr. John D. Stonebraker
Mr. Mark D. Cleve
Attorneys at Law
P.O. Box 2746
Davenport, Iowa 52809
5-1402.20
Filed August 27, 1992
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
GEORGE REDD,
Claimant,
vs. File No. 966304
LAMONT LIMITED, A P P E A L
Employer, D E C I S I O N
and
USF & G,
Insurance Carrier,
Defendants.
5-1402.20
Claimant's credibility was determined not to be sufficiently
strong to overcome conflicting evidence regarding the onset of
his symptoms.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
GEORGE REDD, :
:
Claimant, :
:
vs. : File No. 966304
:
LAMONT LIMITED, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
U S F & G, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
statement of the case
This is a proceeding in arbitration brought by George
Redd against his former employer, Lamont Limited, and its
insurance carrier, U S F & G, based upon an alleged injury
of July 26, 1990. Redd asserts that he injured his neck and
low back while assembling a frame for a wicker bathroom
cabinet. He seeks compensation for healing period,
permanent disability and payment of medical expenses.
Defendants deny that Redd sustained any injury which
arose out of and in the course of his employment on July 26,
1990, and further deny that any alleged injury is a
proximate cause of any disability which has afflicted him or
of any medical treatment and resulting expenses which he has
incurred.
The case was heard and fully submitted at Davenport,
Iowa, on March 5, 1992. The record consists of testimony
from George Redd, Gwendolyn Redd, Lisa (Rose) Welborn and
James Belger. The evidence also consists of jointly offered
exhibits 1 through 19 and claimant's exhibit 1.
findings of fact
Having considered all the evidence received, together
with the appearance and demeanor of the witnesses, the
following findings of fact are made.
There is an irreconcilable conflict in the evidence
presented by the respective parties. Claimant asserts that
he injured his low back and neck while turning a cabinet
frame which he was in the process of assembling, that the
frame weighed approximately 50 pounds, that he reported
injuring his neck and back to coworker Lisa Rose Welborn and
supervisor Jim Belger, that he spoke with his supervisor,
Belger, on the following day and that, when he sought
medical treatment at the Fort Madison Community emergency
Page 2
room on July 28, he gave a history of injuring his back and
neck while at work. At hearing, Redd told of a popping and
tearing sensation while at work on July 26, 1990, and that
it was followed by extreme pain, profuse sweating and a
feeling of nausea. He reported vomiting later on a number
of occasions. Welborn and Belger both testified at hearing
to the effect that the only thing Redd complained of on July
26, 1990, was his lower abdomen and a kidney stone condition
for which he was scheduled to be off work and having surgery
within a few days following July 26, 1990. Belger placed
the weight of the frame at 35 pounds. Redd denied having
pain from his kidney condition; his only admitted complaint
was a problem urinating. Belger testified that Redd had
complained of pain associated with the kidney condition.
Welborn is no longer employed by Lamont, but Belger is now a
plant manager in the Lamont organization.
According to Belger, his first knowledge that Redd
claimed any work-related injury or injury to his neck or
back came approximately three weeks following the kidney
stone surgery at which time Redd requested workers'
compensation claim forms and reported having crushed a
vertebra on his last day of work.
A review of the exhibits in this case shows that Redd
was seeking medical care for a urinary tract problem and
that his treating urologist was Edeliro A. Escobar, M.D.
The physician's records indicate that claimant sought
treatment because of increasing pain which had its onset
approximately two years earlier (joint exhibit 15, page 5).
This record is in direct conflict with the claimant's
testimony that pain was not one of the symptoms of his
urinary tract problem. The first page of joint exhibit 15
shows that Redd sought treatment on July 3, 1990, for pain
in what was described as his left flank area and that the
assessment made was that he had kidney stones.
The third page of exhibit 15 shows that, when Redd
presented himself at the hospital on July 28, 1990, he did
complain of pain in his neck and left arm as well as nausea.
The report notes that Redd placed the onset approximately
three days earlier, but also states that there was no known
trauma or previous injury. The record shows that Redd
received physical therapy treatment for his neck complaints
commencing August 13, 1990 (joint exhibit 15, pages 8-10).
A report from Charles Kennard, M.D., who attended Redd
when he first presented to the hospital emergency room on
July 28, 1990, indicates that Redd was readmitted later on
July 28, 1990, under the direction of Dr. Escobar when a
urinalysis showed numerous red blood cells (joint exhibit
13). The report indicates that Dr. Escobar had apparently
related to Dr. Kennard that the claimant's pain and
complaints could be a result of renal colic or renal
irritation and that, if numerous blood cells were found, it
would indicate such an irritation. The first mention of any
relationship between lifting at work and the claimant's neck
pain is in a physical therapy treatment plan report which
Page 3
appears to be dated on or about August 13, 1990, a date two
to three weeks after the surgery (joint exhibit 15, page 8).
Redd received treatment for his neck complaints at the
University of Iowa Hospitals and Clinics. On September 25,
1990, fusion surgery of the claimant's C5-6 and C6-7
cervical spine was performed. The operation record shows
the existence of a large hard osteophyte on the C5 body and
a smaller osteophyte on the C6 body. Ruptured disc
materials were removed (joint exhibit 8). The treating
surgeon, Christopher M. Loftus, M.D., has related the
cervical problem with a work-related injury (joint exhibit
2). Dr. Loftus also provided an impairment rating of eight
percent of the whole person referable to the cervical
condition and five percent due to degenerative changes in
the claimant's lumbar spine for a total of thirteen percent
of the whole person (joint exhibit 1).
During the course of claimant's treatment, he was
diagnosed as having axonel polyneuropathy of undetermined
etiology which was responsible for his lower extremity
complaints (joint exhibits 16-18). It is noted that, from
the information available in the record of this case, it
appears as though Dr. Loftus was not aware of the episodes
of vomiting which afflicted claimant commencing on July 26,
1990 (joint exhibit 3). Dr. Loftus is not shown to have had
an accurate understanding of Redd's work activities.
Redd has obtained treatment for his neck and back
condition at the Sister Kenny Institute in Minneapolis,
Minnesota (joint exhibits 4-6).
The type of work which Redd was performing does not
appear to be the type of activity or trauma which would be
expected to produce a herniated cervical disc, cause the
formation of osteophytes or cause any degenerative lower
back condition. The type of work does not appear to be
anything which could reasonably be expected to significantly
aggravate any type of preexisting degenerative condition.
On the other hand, violent vomiting has been known to
aggravate degenerative conditions and produce herniated
discs. There is nothing to indicate that nausea was
produced by anything other than the urinary tract condition
as is indicated in exhibit 13.
It is found to be possible that the claimant's work did
in some manner aggravate preexisting degenerative conditions
in his neck and lower back or produce the disc problems. It
is, however, found to be just as possible that a preexisting
degenerative condition in his back and neck was aggravated
or the disc problem was caused by vomiting or some other
unidentified off-work activity. The claimant's denial of
pain symptoms associated with his urinary tract condition is
found to be incorrect as established by the medical records,
namely exhibit 15, pages 1 and 5. The testimony from
claimant that he reported a popping or tearing sensation and
neck and low back pain to Lisa Rose Welborn and Jim Belger
is not sufficiently strong to outweigh their contrary
testimony. It is found that the evidence fails to show it
Page 4
to be more likely than not that the onset of the claimant's
neck and back symptoms began on July 26, 1990, while he was
lifting cabinet frames which he was assembling at his place
of employment. It is found to be at least as likely that
the claimant's neck and low back symptoms had their onset at
some other time and place. In view of the uncertainty
regarding the history which Dr. Loftus relied upon when
expressing his opinion of causation as found in exhibit 2,
that opinion will not be relied upon to establish the
existence of a causal connection between the employment and
the cervical condition. The leg complaints appear to be
very likely related to the axonel polyneuropathy which is
not shown to be a work-related condition.
conclusions of law
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on July 26, 1990,
which arose out of and in the course of his employment.
McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa
1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d
128 (1967).
An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).
The claimant has the burden of proving by a
preponderance of the evidence that the injury of July 26,
1990, is causally related to the disability on which he now
bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18
N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960).
While it is certainly possible that George Redd
experienced the onset of neck pain in the manner which he
described at hearing, his testimony in that regard is not
corroborated by any coworker, supervisor or written medical
report issued promptly following the incident. He most
certainly did have pain complaints regarding his neck and
placed those pain complaints as having their onset on July
26, 1990. There is, however, nothing in the early records
which attributes those complaints to his employment in any
fashion. It is not until a report issued in mid-August that
any reference to his work is suggested as a source of the
neck complaints. When viewed in light of the testimony from
Lisa Rose Welborn and Jim Belger, it is determined that
George Redd has failed to prove, by a preponderance of the
evidence, that he injured his neck at work on July 26, 1990,
or that his neck condition for which he subsequently
underwent surgery and remains to have residual complaints
was in any manner caused or substantially aggravated by any
part of his employment duties on July 26, 1990, or at any
other time. It is therefore concluded that George Redd is
Page 5
not entitled to recover for his neck condition or the
expenses of treating that neck condition from the employer
and its insurance carrier in this case.
The record with regard to the claimant's lower back
condition and leg complaints is even less favorable to the
claimant's claim than that regarding his neck condition.
The physicians attribute the leg symptoms to a
polyneuropathy of undetermined origin. They report that
they have no evidence that a spinal cord injury would cause
peripheral nerve damage of the type which claimant exhibits
(joint exhibit 18). In view of this, the claimant has
failed to prove, by a preponderance of the evidence, that
any condition affecting his low back or legs is related to
any work injury that might have occurred on July 26, 1990.
To the contrary, the evidence fails to support the
claimant's claim of any work injury having occurred on July
26, 1990, whatsoever.
The claimant's burden is to prove his claim by a
preponderance of the evidence. This requires that the
evidence in the record show it to be more likely than not
that the claimant was injured and that the injury produced
the injury upon which this claim is based. The claimant's
credibility is not sufficiently strong to overcome the
conflicting evidence which is found in the record of this
case.
It is therefore concluded that George Redd has failed
to prove, by a preponderance of the evidence, that he
sustained any injury which arose out of and in the course of
his employment with the employer on or about July 26, 1990.
order
IT IS THEREFORE ORDERED that the claimant, George Redd,
take nothing from this proceeding.
IT IS FURTHER ORDERED that the costs of this action are
assessed against the claimant pursuant to rule 343 IAC 4.33.
Signed and filed this ______ day of ____________, 1992.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. George E. Wright
Attorney at Law
607 Eighth Street
Fort Madison, Iowa 52627
Mr. John D. Stonebraker
Mr. Mark D. Cleve
Page 6
Attorneys at Law
P.O. Box 2746
Davenport, Iowa 52809
5-1402.20
Filed March 10, 1992
MICHAEL G. TRIER
before the iowa industrial commissioner
____________________________________________________________
:
GEORGE REDD, :
:
Claimant, :
:
vs. : File No. 966304
:
LAMONT LIMITED, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
U S F & G, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
5-1402.20
Claimant's credibility was determined not to be sufficiently
strong to overcome conflicting evidence regarding the onset
of his symptoms.
5-1402.40
Filed February 27, 1992
Patricia J. Lantz
before the iowa industrial commissioner
____________________________________________________________
:
BARBARA COMBS, :
: File No. 966318
Claimant, :
:
vs. : A R B I T R A T I O N
:
CONTAINER CORPORATION, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
:
___________________________________________________________
5-1402.40
Claimant failed to appear for the hearing.
Based on the medical evidence provided, claimant was not
entitled to additional benefits. She failed to prove by a
preponderance of the evidence that she had any disability
attributable to a work-related injury.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JOANN ARMSTRONG, :
:
Claimant, : File Nos. 966321
: 966322
vs. :
:
COUNTY MARKET, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
SENTRY INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on August 26, 1993, at
Des Moines, Iowa. These are proceedings in arbitration
wherein claimant seeks compensation for permanent partial
disability benefits as a result of alleged injuries
occurring on May 3, 1989 and February 19, 1990. The record
in the proceedings consists of the testimony of claimant;
claimant's husband, Troy Armstrong; Gordy Smock; Shirley
Goings; and, joint exhibits 1 through 50.
ISSUES
The issue regarding the May 3, 1989 alleged injury
(File No. 966321) is
1. Whether claimant's injury is a body as a whole
injury or a scheduled member injury. Claimant is claiming a
left hand injury, depression and shoulder problems. If a
scheduled injury is found it would be to claimant's left
hand
The issues regarding the February 19, 1990 injury (File
No. 966322) are:
1. Whether the injury arose out of and in the course
of claimant's employment on February 19, 1990;
2. Whether there is a causal connection as to
claimant's alleged disability and a work injury on February
19, 1990;
3. The nature and extent of claimant's permanent
partial disability and entitlement to disability benefits,
if any; and,
4. Whether claimant gave timely notice under the
provisions of Iowa Code section 85.23.
Page 2
FINDINGS OF FACT
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant is a forty-three year old who went through the
tenth grade and has not received a GED. Claimant quit
school to work. Claimant also testified through her
deposition on April 4, 1991, represented by joint exhibit
48.
Claimant related her work history which involves
working in a department store and grocery store as a cashier
or in a fast food restaurant. On May 3, 1989, claimant was
working for defendant employer County Market which formerly
operated under the name of Gordy's. She began to work for
Gordy's in 1970 and has worked for this operation since that
date until February 19, 1990, which was her last day of work
for defendant. During this 20 year period of time, claimant
described the nature of her work which involved both meat
wrapping and at times being a cashier.
Claimant described in detail the nature of her meat
wrapping job and what it entailed and the various weights
she would lift. She indicated she would be lifting 20 or 30
pounds at times. Claimant said she worked at both the
Waterloo and Cedar Falls store and that the store in Cedar
Falls was opened in 1989 and she was moved to that store.
She indicated that the equipment for processing meat was not
as good as the equipment at the Waterloo store.
Claimant indicated she never did injure herself at the
Waterloo store and did not miss any work. Claimant said
that when she was transferred to the Cedar Falls store in
April 1989, the job she did as a meat wrapper was the same
as she did in Waterloo but was done in part differently as
she had to place the items on the tray and lift them
differently and the machine operated a little bit
differently at the Cedar Falls store.
Claimant described how she was injured on May 3, 1989.
Claimant described the nature of her cut which was across
the palm of her left hand and her thumb. Claimant was taken
to the hospital emergency room, given a tetanus shot, was
stitched up and returned to defendant employer's store with
her supervisor, Fran (Francis) Macek. Claimant indicated
her hand hurt but defendant had just received a replacement
sticker machine that put out the weight and price of the
meat product and the supervisor wanted her to see how the
machine ran and learn its operation since it was different
than the one they had been just previously using. Claimant
then was allowed to go home.
Claimant indicated she worked the next scheduled work
day which she believed was approximately the second day
after her injury. She wore a cotton glove over left hand
but could not use it so she did all of her work in lifting
with the right hand and body and used her left extremity in
the wrist area mainly as a balancing or support when lifting
Page 3
trays of meat or needing some support and balance.
Claimant testified that when she returned to work she
was using her right hand more instead of her left hand. She
began hurting in her right arm and into her shoulder and
back It appeared to be getting worse in June and July of
1989 and she testified she complained to her supervisor,
Fran Macek. She told Ms. Macek she thought she had pulled a
muscle. She related her going to Thomas F. Thornton, M.D.,
after complaining to Fran. She indicated everyone in her
work place knew she was having trouble and additional
problems.
Claimant related that Shirley Goings, the personnel
manager with defendant employer, also knew of claimant's
situation and that claimant thought it was a pulled muscle.
Claimant then referred to joint exhibit 7, page 1,
which reflects her appointment with Dr. Thornton on
September 14, and his referral to David F. Poe, M.D., page
3. Claimant indicated that she had taken three weeks off
for the therapy through Dr. Poe, an orthopedic surgeon.
Claimant then returned to work in October of 1989 after this
therapy and performed the same work in the same way still
using her right side. She indicated that she became so bad
that she couldn't take the pain in her arm, right shoulder
and back anymore so she quit on February 19, 1990.
Claimant indicated that Dr. Poe had told her not to go
back to work and that no one released her to go back to work
except Dr. Poe released her to return to regular work duties
on October 15, 1990 (Jt. Ex. 49).
Claimant said she went back to work willing to try even
though she was having problems which included at that time
pain in her face and a film over her eyes. She was still
having pain in her right side and shoulder and that her left
hand was still sore in the same spot as it was before.
Claimant related her trip to Iowa City Hospital and did
not seem to get much satisfaction from the treatment there.
It appeared they weren't sure what was claimant's problem
but claimant's family doctor then thought she may be
suffering from depression. Medication helped so claimant
then went to see some psychiatrist. Claimant now believes
that she is suffering from depression but in her early
diagnoses of that she didn't believe it. She has seen
several psychiatrists but now is under the care of Matthew
S. Targoff, D.O.
Arnold E. Delbridge, M.D., did surgery on claimant's
hand in June of 1992, in the area where the spot was
previously tender. She said the doctor set the nerve back
but it was still tender and she demonstrated in court the
tenderness of her hand.
Claimant was then asked questions concerning her
attempt to return to work in October 1990. Claimant said
that she went to defendant employer's meat department and
Francis Macek said claimant's job had been terminated but
Page 4
she nor anyone else knew when it was terminated. She
indicated she also asked the store manager who indicated the
same but didn't know when her job was terminated.
Claimant then indicated she got mad and went upstairs
to further inquire and someone indicated that they may have
a job with a third shift with less money but no one told her
to come back or signed her up for a job. It also appears to
the undersigned that claimant did not further pursue any
further attempt with this employer nor did the employer
follow up.
On cross-examination, she indicated that Fran Macek and
Steve Blake said she was fired. He indicated to her that
another person was doing her job since claimant wasn't
there. Claimant acknowledged that after fighting with the
employer, they offered her a job as cashier and then
indicated it really wasn't an offer and that it paid less
money. Claimant indicated she had filed for unemployment
and the parties then agreed to submit joint exhibit 50 which
was a copy of the job service decision which awarded
unemployment compensation benefits.
The question was asked as to whether claimant told the
employment agency that she was able to work when she applied
for unemployment which infers that one is willing and ready
to work. While it appears claimant didn't think she was
able to go to work and hadn't worked or done the particular
job for defendant employer for eight months, she indicated
she told the unemployment agency that she would try to see
if she could do the job.
Claimant acknowledged that she applied for social
security sometime prior to 1990 and that she has been denied
social security benefits. It appears she has appealed that
decision. Claimant doesn't think she can do anything now
and indicates that she doesn't want to leave the house and
wants to be by herself.
Troy F. Armstrong, claimant's husband, testified that
claimant's current mental problems began when a doctor had
told her she could return to work and when she went to work,
they told her she was terminated. He said this affected her
as she had never before been fired or told she was incapable
to work during their 22 years of marriage.
Mr. Armstrong testified that before his wife's injury
they bowled in a mixed league, she could do the housework,
mixed well with people and liked to work. She has been
unable to bowl since she cut her left hand and since the
additional problems developed, she no longer likes to meet
with people or be around people, including former friends.
He gave an example that they may be talking and she would
all of a sudden get up and leave and go into the bedroom and
start crying. In many cases, he never knows when she might
do this and that she wants to be alone.
Mr. Armstrong indicated that after claimant returned to
work after having cut her left hand, her left wrist would be
black and blue from balancing things on it. He indicated
Page 5
she couldn't hold things with her left hand. He said she
began to complain that her shoulder blade hurt and his wife
had told him she had told her boss of her problem. He
testified as to some of claimant's doctor appointments and
therapy. He thought claimant's face problems were due to
nerves. He said he didn't want to believe that she had
depression.
Mr. Armstrong was asked as to problems there may have
been at home that might have caused claimant's depression.
He was asked concerning his mother-in-law who had lived with
them for approximately 12 years and who had breast cancer.
He indicated she is now in remission and did require care
but has not needed it in the last five years. He said he
didn't find this to be a stressful situation and that his
mother-in-law had gone through the chemotherapy treatment.
Gordy J. Smock has worked at both of the defendant
employer's stores and has been employed with them for a
total of seven and one-half years. He began working at the
Cedar Falls store in 1986, approximately one week after
claimant was transferred to that store. He is a meat cutter
and when he cuts the meat is sent down on rollers to the
meat wrappers.
He agreed with the claimant's testimony as to the type
of job she did and what she had to do in wrapping the meat,
etc. He agreed that the equipment of the Cedar Falls store
is different than at the Waterloo store and that it was
harder because it only had a shrink tunnel and all of the
meat had to be wrapped by hand which was different from
Waterloo.
He was present and saw claimant cut her hand on May 3,
1989. He called the boss, Fran, and claimant was taken to
the hospital and returned back and helped for a short time
with the new ticker machine they had just obtained.
He said claimant got along well with people and was
friendly and talked to him and others. He said she was able
to do the job and got along well and was willing to help
other. In fact, he said claimant was better when it came to
friendliness with others than he and that she was a good
worker.
He said claimant was gone one or two days after this
hand incident and upon her return she would take a tray with
the right hand and put it on or balance it on her left
wrist. He said she would wrap the meat as it was done
before but that she had to use her right hand to pull the
trays and the meat because of the condition of her left
hand.
He said claimant complained and continued to have
problems upon her return and that she eventually complained
of her back, right arm and neck hurting and she cried. She
thought it was a pulled muscle. He indicated that other
workers knew claimant was having problems and that Fran
along with the others are in this one large room area all
together and they see each other.
Page 6
He said he has never seen claimant cry before since
this injury and the pain she was having except on one
occasion which claimant had an argument with her boss.
Mr. Smock demonstrated how the meat is wrapped and
indicated that he has done some wrapping when the claimant
was gone. It is obvious to the undersigned that to
efficiently perform this job, it is important to have two
hands. It is also obvious that the way the claimant
described how she had to do it after her injury, there would
be a necessity to still have help from some part of the left
extremity even with the increased work and use of the right
hand.
Shirley Goings is the personnel manager with defendant
employer and has been employed with defendant employer for
17 years. She has been the personnel manager since
September 1984. She oversees both the Cedar Falls and
Waterloo stores. She was present in court when claimant
testified as to the incident in which she cut her hand.
Ms. Goings indicated the first she knew about the
alleged 1990 injury was a letter from claimant's attorney
which she apparently received in December of 1990. Ms.
Goings insisted that the claimant never told her that her
shoulder problems related to an injury and that claimant
never requested that her right shoulder bills be submitted
to the workers' compensation carrier. Claimant indicated
she apparently sent the bills to her husband's employer's
insurance company.
Ms. Goings contends that she offered claimant a job and
indicated that she would pay the claimant the same wages she
was getting as a meat wrapper.
Ms. Goings disagreed as to claimant's contention that
she had told the claimant that her shoulder problems was not
covered by workers' compensation. She emphasized claimant
never asked her to file a workers' compensation claim and
she never said it would or would not be covered.
Ms. Goings acknowledged that the company has a policy
as to one missing work and if one is off, they need a doctor
to state the reason. She said that if an employee brings in
a note to this effect, okay, but the employer doesn't ask
for a note from the doctor. She acknowledged she never
asked the claimant to bring in a report from Dr. Thornton or
Dr. Poe.
Ms. Goings acknowledged that she appeared at the
unemployment hearing and told the judge that she had offered
claimant work as a cashier and the claimant refused. She
acknowledged that the claimant did get unemployment
compensation. Ms. Goings was unable to explain why claimant
got unemployment benefits when defendant employer had a job
available. Ms. Goings again indicated she thought claimant
quit.
Although it appears there is some confusion in Ms.
Page 7
Goings' testimony as to whether she knew claimant had neck
and shoulder problems, near the end of her
cross-examination, it appeared that she indicated she knew
claimant had shoulder and neck problems but emphasized that
claimant did not attribute it to her work or that Ms. Goings
didn't think it was work connected.
Claimant has pled two injuries, one on May 3, 1989 and
one on February 19, 1990, but also further acknowledges that
the undersigned could find that the February 19, 1990 injury
was a sequela of the May 3, 1989 injury and was not in fact
a new injury. Defendants do not deny that claimant incurred
an injury on May 3, 1989 and contend it was to the left hand
and are paying on that basis and on the only impairment
rating issued herein by any doctor.
The undersigned finds that claimant incurred an injury
on May 3, 1989, when she cut her hand and that subsequently
after healing she returned to work in October of 1989 and
favored her left hand that had ten stitches thereon. The
undersigned finds that claimant has a very tender and sore
spot on her left hand that to this day is still very tender
to the touch even though external appearances show it is
completely healed.
There is no dispute that upon claimant returning to
work she continued to do her meat wrapping job. This nature
of her work was demonstrated not only by her but also by a
Mr. Smock and it is obvious to the undersigned that this
incurred considerable use of the hands and if one did not
have full use of both hands, that it is necessary that
claimant had to use her right upper extremity and hands much
more than she did before. She was then using her left hand
for balancing. The undersigned therefore finds that we do
not have two injuries but, in fact, claimant's complaints to
her right shoulder and neck is a sequela of her May 3, 1989
injury.
The above finding disposes of defendants' affirmative
defense that the defendants did not have timely notice under
the provisions of Iowa Code section 85.23 as to any February
19, 1990 injury. The undersigned finds that even if it was
not determined the February 19, 1990 incident was a sequela
to the May 3, 1989 injury, that in fact defendant employer
did have timely notice of problems claimant was having and
therefore the affirmative defense of defendants' would have
failed in either situation.
Arnold E. Delbridge, M.D., an orthopedic surgeon,
testified by deposition on April 21, 1992. Dr. Delbridge
did not treat claimant but saw her on two occasions,
November 6, 1991 and March 6, 1992. He testified as to his
diagnosis which included a laceration of the radial digital
nerve of the left index finger. He emphasized that it was
purely a sensory nerve. He indicated that at the time of
her visit she had a neuroma formation and that there was
extreme hypersensitivity in the distal palm where the cut is
and that that is where the neuroma formation was located.
He said that when it is touched even lightly pain shoots
down the finger and there is extreme hypersensitivity in
Page 8
that area.
At the time his deposition was taken he indicated and
recommended that the area should be explored and possible
surgery because claimant was only able to use the ulnar
three fingers and the thumb to pick up something because
anything that touched her palm resulted in her not being
able to grip it because of the high sensitivity (Jt. Ex. 1,
p. 8). He couldn't guarantee that any surgery would result
in less hypersensitivity. He indicated that because of
recovering from the surgery, claimant would be limited to
light duty and mainly in a one handed-type job that would
require some help from her injured hand. He indicated that
it is unlikely full duty unrestricted work would occur in
this claimant ever, but there should be some improvement.
He also indicated that there would be some limitation
because there is a problem with claimant's right upper
extremity and that she would have difficulty doing work
above the shoulder level (Jt. Ex. 1, p. 11). He indicated
claimant's problem with her right upper extremity is the
result of overuse syndrome that he had diagnosed. He also
referred to Dr. Poe talking about claimant's overuse
syndrome (Jt. 1, p. 12).
The doctor indicated that claimant had an impingement
sign. She had pain to the subacromial area of her shoulder
(Jt. Ex. 1, p. 16). He acknowledged that an overuse
syndrome is a difficult problem to rate and also indicated
that the AMA Guides do not go far enough and are hazy in
attempting to rate that condition (Jt. Ex. 1, pp. 17-18).
The doctor indicated it was unlikely for claimant to be able
to return to her job that she had as long as her
hypersensitivity persists because of it being a two handed
job. He also indicated that until the neuroma is taken care
of she is very limited with her left hand. The doctor
emphasized that claimant should have surgery to her left
hand if there is any hope of improvement and he is willing
to do it if the defendant insurance authorizes it. The
doctor emphasized again that there has been a permanent
impairment to claimant's right upper extremity which he
connected to the left hand but the recovery to her right
upper extremity is currently incomplete. The doctor
described a neuroma as a bulbous glob of nerve tissue that
can get quite sizable and is often very sensitive (Jt. Ex.
1, p. 32).
He said claimant's condition had not changed much
between her November 6, 1991 and March 6, 1992 visit to him.
He indicated that there was a permanent impairment to
claimant's right upper extremity (Jt. 1, pp. 29, 33).
Daniel J. McGuire, M.D., testified through his
deposition on May 6, 1992. He examined claimant first on
August 9, 1991, and then again on April 9, 1992. This
deposition was typical of Dr. McGuire's and his reports in
which a lot of verbiage an comments are made and are often
of little substance. It would appear that he doesn't
believe in or doesn't believe the words "overuse syndrome"
should be used (Jt. Ex. 2, p. 45). The undersigned sees no
use in trying to set out anything more of this doctor's
Page 9
deposition.
Joint exhibit 3 is the reports and some records of Dr.
Delbridge. His records show progression reports concerning
claimant's condition and he makes certain impairment
conclusions. He first saw claimant at her attorney's
request on November 6, 1991 for an evaluation. He
subsequently saw her again on March 6, 1992, and then saw
her several times in 1992 and 1993.
Dr. Delbridge's July 22, 1993 letter indicates that
claimant had reached maximal improvement on February 8,
1993. He indicates she could not return to her original job
and he did anticipate that she would be able to return to
her previous job in the foreseeable future.
The doctor had written a June 7, 1993 report in which
at that time he opined that claimant had a 5 percent left
hand impairment due to a 25 percent impairment of the left
index finger and gave her an additional 5 percent impairment
since she still had some high sensitivity because of the
recovering nerve. This evaluation was an improvement over
previous ones that he had made.
He also opined that claimant still has an overuse
syndrome and at times some limitation of motion of the right
upper extremity and he opined that she had a right upper
extremity impairment at 10 percent and converted that to 6
percent of the whole person.
On July 15, 1993, the doctor referred to the
restrictions that he had given to the insurance company
regarding the claimant on June 7, 1993, which he indicated
were the same restrictions she had on February 8, 1993. The
limits were raised to the extent that she could now use both
hands up to 10 pounds of repetitive lifting as long as she
does not have to work above chest level and does no repeated
reaching or pulling. She also is to maintain restrictions
against hard gripping of the right hand. Claimant has
hypersensitivity in her left hand but it does appear to be
improving over time (Jt. Ex. 3, pp. 22-26).
There are several other reports of doctors and medical
records that are represented by joint exhibits 4 through 8.
The undersigned sees no reason to detail them in light of
this total decision.
The undersigned might note at this point that in
September of this year the deputies have been instructed to
by the industrial commissioner to keep their decisions as
short as possible while still complying with the law and
supreme court.
Joint exhibit 10, dated April 28, 1992, indicates that
R.M. Akbar, M.D., saw claimant on that date for psychiatric
evaluation as a referral from the Disability Determination
Services in Des Moines. His diagnosis in part was that
claimant had a dysthymic chronic pain disorder and anxiety
disorder or somatizaton disorder and had a history of injury
to her left hand and a chronic neck, back and lower back
Page 10
pain. He further concluded that claimant definitely
presents with a syndrome of depression which was directly
related to her chronic pain disorder, she was impaired in
her ability to interact with her coworkers, is not able to
carry out instructions in a meaningful manner in the work
place, and that her activities around home are quite limited
as a result of her chronic pain (Jt. Ex. 10).
There are additional medical records and reports
reflected by joint exhibits 11 through 22. The undersigned
believes it is not necessary to set out these records for
the reasons previously stated in regard to certain other
medical exhibits.
Interrogatories 23 through 39 are medical bills. The
parties have stipulated, depending on my decision, as to the
payment or nonpayment of the same.
Joint exhibit 40 has basically to do with the rate and
since it was stipulated to, the undersigned does not see any
importance for most of that exhibit.
Joint exhibit 42 is a report from Dr. N.S. Pangilinan,
M.D., a psychiatrist, whose May 11, 1993 report was made
obviously upon referral for social security purposes. This
doctor's history of claimant is similar to other
psychiatrists as to the problems claimant has been having
since her 1989 and 1990 episodes or alleged injuries. This
doctor opined that claimant appears to be suffering from
moderate to severe depression despite being maintained on
anti-depressant medication.
Joint exhibit 43 is a report from Ralph Scott, Ph.D., a
licensed psychologist, who issued a psychological evaluation
report on April 10, 1993. This summary indicates that
claimant was cooperative during the evaluation but was
extremely somber and pessimistic. He indicates her overall
behavior was consistent with depressed mood. Her aptitude
testing, both verbal and nonverbal tasks, was in the upper
range of the borderline classification to the very lowest
rung of the low average classification (p. 3). He also
reflected that these scores are not considered fully
representative of claimant's cognitive potentials given the
evidence that the emotional factors depress the quality of a
number of her responses. The psychologist did not believe
claimant could successfully perform under the conditions of
competitive employment. Like some of the other psychiatrist
reports, this report indicates that claimant was able to
handle cash. The inference on this which is clear from
other reports is that this was done for social security
purposes and that if she received benefits she would be able
to handle them on her own.
Joint exhibit 47 is an August 17, 1993 report from
Michael J. Taylor, M.D. Although the letterhead does not
indicate any way that he is a psychiatrist, he is known as
such. The claimant was referred to him through the
defendants' attorney. He indicated the most appropriate
diagnosis for claimant was that her current psychiatric
problem was a major depressive disorder. He also indicated
Page 11
that it had excellent prognosis which you could expect with
aggressive treatment with anti-depressant medication and
that if such was done, she would have no permanent
psychiatric limitations. He was the only psychiatrist that
indicated claimant could be improved with aggressive
anti-depressant medication and that she would then have no
permanent psychiatric limitations. Of course, this doctor
saw claimant not only once, but it was just approximately
one week before the hearing. Defendants have denied
liability so claimant hasn't been treated at defendants'
cost assuming Dr. Taylor is correct.
There are two files in this case, one alleging a May 3,
1989 injury to the left hand and the ultimate resulting
psychological problems resulting therefrom, and a February
19, 1990 injury to her right shoulder and back and alleges a
body as a whole injury.
It is also obvious not only from the evidence,
statement from counsel, and a hearing report that two
petitions are filed but likewise the issue is whether the
February 19, 1990 injury is a sequela of the May 3, 1989
injury. If that is found, then in fact we have one injury
that occurred on May 3, 1989, and the rate for that injury
the parties stipulated to.
The undersigned believes that the greater weight of
medical evidence clearly shows that claimant's problems
began with her hand injury on May 3, 1989 and because of the
nature of the hand injury, the sensitivity, and claimant's
motivation to continue to work, that she favored her right
side which was necessary in order to perform her job with
defendant employer, which job involved basically meat
wrapping. Two individuals, including claimant, described
the action necessary in order to perform her job and wrap
meat and it is obvious to the undersigned that it really
required a full use of two hands to efficiently do the job.
It is further obvious that the claimant had to balance
things on her left wrist but had to extensively use the
right side of her body to perform her job. The undersigned
finds that because of claimant changing the nature of
performing her job and having to use her right upper
extremities more than usual did cause claimant's problems
with her right shoulder and into her body as a whole.
Evidence of this is found in numerous medical reports and
history. The undersigned finds that there was only the one
injury of May 3, 1989, and that the sequela to that resulted
in claimant's further injury and that there was not a
separate traumatic injury on February 19, 1990.
There is no denial that claimant had a left hand injury
and in fact defendants voluntarily paid for that injury that
they feel is strictly to the left hand and paid a healing
period connected therewith. Defendants dispute that there
was any psychological injury resulting from her May 3, 1989
hand injury and also deny that any injury occurred on
February 19, 1990, or that there was even a sequela to her
May 3, 1989 injury. The undersigned finds that the greater
weight of medical evidence disproves defendants' contention.
Page 12
This above finding disposes of defendants' contention
involving the February 19, 1990 alleged injury that there
was lack of timely notice under the provisions of Iowa Code
section 85.23. This issue is moot in light of the above
findings but even if there had been two separate injuries
concluded in the facts of this case, the defendants would
have failed on the timely notice issue in light of the
claimant's complaints and the record of evidence in this
case.
The undersigned finds that claimant's May 3, 1989
injury and the sequela thereto caused claimant to not only
have an impairment to her left hand, but also an overuse
syndrome to her right upper extremity (shoulder) and into
her body as a whole and believes that the opinion of Dr.
Delbridge is supported by the greater weight of evidence.
The undersigned finds that claimant has a 5 percent
impairment to her hand as a result of a 25 percent
impairment of her left index finger and that she has an
additional 5 percent impairment due to her hypersensitivity
because of her recovering nerve, giving her a total of 10
percent impairment to her left hand. Claimant also has
impairment to her right upper extremity of 10 percent which
is 6 percent of the body as a whole. These impairments are
per the opinion of Dr. Delbridge (Jt. Ex. 3) which the
undersigned feels are accurate and the best medical
evidence. Dr. Delbridge uses the word "right upper
extremity" but it is obvious in his reports and the evidence
that he feels this injury is to claimant's shoulder and goes
into her body as a whole. Using the combined charts and
converting the 10 percent impairment to the hand to the
upper extremity and then to the body as a whole results in a
5 percent body as a whole and a 6 percent body as a whole,
and on the combined charts results in claimant having an 11
percent impairment to the body as a whole as to the above.
The undersigned finds that the greater weight of medical
evidence shows that the above impairment is caused by
claimant's May 3, 1989 injury and the sequela in 1990.
Claimant also contends psychological injury. It is
apparent to the undersigned that claimant has a depressive
condition or a condition that causes her to appear depressed
and without warning to cry and withdraw. The undersigned
believes this is real. There is also testimony in addition
to the various doctor reports which involved several
psychiatrists that refer to claimant's depression and her
overall psychiatric condition. The record shows that
claimant was not having any psychiatric problems prior to
her May 3, 1989 injury. Claimant has been a good worker and
motivated prior to injury. There is no other explanation of
what caused claimant's psychiatric problems other than her
injury and the resulting circumstances flowing therefrom
which included the sequela in 1990 and the fact that she did
not and wasn't able to do her job, her losing her job and
the fact that benefits have basically been denied as far as
her depression and her shoulder and body as a whole injury.
Defendants contend that claimant was offered a job back
in October 1990. Claimant contends that although she was
released to work and was going to try to work, she felt she
Page 13
was not able to. It appears undisputed that claimant was
not offered her meat wrapping job back as it had already
been filled. It is obvious from the record that claimant
would not have been able to perform that job even if it had
been offered to her.
Defendants contend that they offered her another job
that she could do and claimant disputes this. It is a
matter of who the undersigned is to believe. The
undersigned believes that this is best settled by looking at
joint exhibit 50 which is an October 30, 1990 decision of
the Job Service of Iowa in which the dispute was resolved.
Claimant was awarded unemployment compensation benefits and
the employer did not appeal said decision. It is obvious
from that exhibit that both parties presented evidence to
support their position. This Job Service decision is
conclusive and upholds claimant's contention.
The undersigned believes that the employer could have
made a more concerted effort to offer claimant employment if
it was sincere in doing so or had employment available and
could have followed up either on that occasion or pursuant
to the unemployment compensation hearing. This defendant is
the most logical company to employ this claimant. Because
of the nature of that company, it is hard to believe that
they wouldn't have a job for her. The undersigned believes
that had they made a concerted effort, this could have gone
a long way in claimant's psychological recovery.
Although some psychiatrists seemed to indicate
claimant's inability to perform her past job and also leave
the impression of an inability of doing many other jobs, the
undersigned believes that once this litigation is over, this
may help solve some of her problems. This decision also
might cause some effort on the part of the defendant to work
with the claimant toward some type of employment. There is
some indication from at least one psychiatrist that maybe a
more aggressive treatment of claimant might enable her to
get back into the workforce. The undersigned believes
getting claimant back into some type of job she can handle
and working her into that job will also be helpful.
Claimant has applied, it appears on more than one occasion,
for social security disability benefits and they have been
denied to date.
The parties agree that claimant was off work on
February 19, 1990 through February 8, 1993, and the
defendants paid a healing period beginning June 15, 1992,
when claimant had her last hand surgery through February 8,
1993. The parties are disputing as to whether claimant
should receive healing period benefits beginning February
19, 1990 up to but not including June 15, 1992. That
dispute for healing period appears to arise from the dispute
as to whether an injury occurred on February 19, 1990 or
whether it was a sequela of the May 3, 1989 injury.
In light of the above finding that we have one injury
and that any occurrence on February 19, 1990 was a sequela
of the May 3, 1989 injury, the undersigned finds that
claimant is entitled to additional healing period beginning
Page 14
February 19, 1990 up to and not including June 15, 1992.
The undersigned agrees that the healing period already paid
for June 15, 1992 through February 8, 1993 is owed and
claimant was entitled to that but that appears not to be an
issue. Defendants have not denied that claimant had a left
hand injury on May 3, 1989. Defendants contend that that
was her only injury and was a scheduled injury.
The undersigned therefore finds that claimant has
incurred an injury on May 3, 1989 with a sequela to that
injury on February 19, 1990, and that these arose out of and
in the course of claimant's employment and caused claimant
to incur healing period, impairments to the body as a whole
injury and industrial disability, and that such industrial
disability does include claimant having suffered
psychological damage.
The undersigned therefore finds that taking into
consideration claimant's age, pre and post-work and medical
history, her motivation, nature of her impairments, extent
of her healing period, the nature and location of her
injury, her restrictions, claimant's potential for
vocational rehabilitation, her intelligence, her emotional
condition, her education, and the employer's inability to
give claimant suitable work after injury, claimant has
incurred a 75 percent industrial disability.
Medical benefits under Iowa Code section 85.27 are in
dispute but the dispute basically has to do with causal
connection. The parties had agreed that if in fact causal
connection was found as to the February 19, 1990 injury or
sequela to the May 3, 1989 injury, the medical would not be
in dispute and the medical that is in evidence herein would
be paid by defendants. The undersigned therefore finds that
defendant are responsible for the medical represented by the
various exhibits.
CONCLUSIONS OF LAW
Claimant has the burden of proving by a preponderance
of the evidence that she received an injury on May 3, 1989,
which arose out of and in the course of her employment.
McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa
1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154
N.W.2d 128 (1967).
The claimant has the burden of proving by a
preponderance of the evidence that the injury of May 3,
1989, is causally related to the disability on which she now
bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18
N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
Page 15
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154
N.W.2d 128 (1967).
An injury to a scheduled member which, because of
aftereffects (or compensatory change), creates impairment to
the body as whole entitles claimant to industrial
disability. Barton v. Nevada Poultry Co., 253 Iowa 285, 110
N.W.2d 660 (1961). Dailey v. Pooley Lumber Co., 233 Iowa
758, 10 N.W.2d 569 (1943).
If a claimant contends he has industrial disability he
has the burden of proving his injury results in an ailment
extending beyond the scheduled loss. Kellogg v. Shute and
Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
For example, a defendant employer's refusal to give any
sort of work to a claimant after he suffers his affliction
may justify an award of disability. McSpadden v. Big Ben
Coal Co., 288 N.W.2d 181 (Iowa 1980).
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
Page 16
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
It is further concluded that claimant incurred an
injury on May 3, 1989, which arose out of and in the course
of her employment, and that there was a sequela to said
injury on February 19, 1990.
The original injury and sequela caused claimant to
incur an impairment to her left hand, an impairment to her
right shoulder that went into the body as a whole, and
caused psychological injury all of which caused claimant an
industrial disability of 75 percent.
Claimant's injury and sequela thereto caused claimant
to incur a healing period beginning February 19, 1990
through February 8, 1993, of which the healing period of
June 15, 1992 through February 8, 1993 has been paid by
defendants, thereby leaving a healing period due and owing
of 120.571 weeks.
Medical expenses that have been incurred that are
represented by the exhibits herein are the obligation of
defendants.
As to the February 19, 1990 alleged injury represented
by file number 966322, that was not a separate traumatic
injury but was a sequela of the May 3, 1989 injury referred
to above represented by file number 966321, and because of
this conclusion all of the other issues specifically set out
in reference to that particular file are moot.
The parties stipulated to a rate of $159.26, but
according to the Guide To Iowa Workers' Compensation Claim
Handling (Benefit Schedule), the correct rate for a May 3,
1989 injury (married with three exemptions with a weekly
wage of $220.19), the correct rate would be $152.66.
ORDER
Page 17
THEREFORE, it is ordered:
That the defendants shall pay unto claimant healing
period benefits at the rate of one hundred fifty-two and
66/100 dollars ($152.66) for the period beginning February
19, 1990 through February 8, 1993, which defendants have
already paid for the period of June 15, 1992 through
February 8, 1993, thereby leaving a balance of healing
period benefits owing of one hundred twenty point five seven
one (120.571) weeks.
That defendants shall pay unto claimant three hundred
fifty (350) weeks of permanent partial disability benefits
at the rate of one hundred fifty-two and 66/100 dollars
($152.66) beginning February 9, 1993.
That defendants are responsible for the payment of
medical benefits represented by the medical bill exhibits in
evidence herein.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid. Defendants have previously
paid fifty-three point one four three (53.143) weeks at the
rate of one hundred fifty-nine and 26/100 dollars ($159.26)
which weeks included the part of the healing period referred
to above which has been paid.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of September, 1993.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Robert Fulton
Attorney at Law
First Natl Bldg 6th Flr
E 4th and Sycamore
P O Box 2634
Waterloo IA 50704-2634
Mr Harry Dahl Sr
Attorney at Law
974 73rd St Ste 16
Des Moines IA 50312
5-2503; 5-1100; 5-1108.50
5-1803; 5-1802
Filed September 15, 1993
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JOANN ARMSTRONG, :
:
Claimant, : File Nos. 966321
: 966322
vs. :
:
COUNTY MARKET, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
SENTRY INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1100; 5-1803; 5-1108.50
Found claimant incurred an injury that arose out of and in
the course of her employment on May 3, 1989 causing claimant
to injure her left hand. Also found that additional injury
occurred as a sequela of the May 3, 1989 work injury causing
claimant a body as a whole injury to her right shoulder and
depression. Claimant was awarded 75 percent industrial
disability .
5-1802; 5-2503
Claimant was awarded additional healing period benefits and
medical benefits.
5-1100; 5-1108.50
Claimant recovered nothing as to a February 19, 1990 alleged
injury as a separate injury but the events on February 19,
1990 were found to be a sequela of the May 3, 1989 work
injury.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
ROBERT D. CROUCH, :
:
Claimant, :
:
vs. :
: File No. 966325
VIKING FREIGHT SERVICE TRANS.,:
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
PROTECTIVE INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Robert
D. Crouch, claimant, against Viking Freight Service Trans.,
employer, hereinafter referred to as Viking, and Protective
Insurance Company, insurance carrier, defendants, for work
ers' compensation benefits as a result of an alleged injury
on February 3, 1990. On April 13, 1992, 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 prehearing report of con
tested 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 prehearing report, the parties have
stipulated to the following matters:
1. On February 3, 1990, claimant received an injury
arising out of and in the course of his employment with
Viking.
2. Claimant is entitled to temporary total or healing
period benefits from February 3, 1990 through October 31,
1990 and defendants agree that he was not working at this
time.
3. The injury is a cause of permanent industrial
disability to the body as a whole, the extent of which is in
dispute.
4. At the time of injury, claimant's gross rate of
weekly compensation was $575.00. He was married and enti
tled to two exemptions. Therefore, claimant is entitled to
a weekly rate of compensation of $351.43 according to the
Page 2
Industrial Commissioner's published rate booklet for FY 90.
5. With reference to the requested medical benefits,
it was stipulated that the fees and treatment were reason
able.
ISSUES
The parties submitted the following issues for determi
nation in this proceeding:
I. The extent of claimant's entitlement to permanent
disability benefits; and,
II. The extent of claimant's entitlement to medical
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
defendants placed claimant's credibility at issue during
cross-examination as to the nature and extent of the injury
and disability. From his demeanor while testifying,
claimant is found credible.
Claimant worked as an over-the-road semi driver from
1973 until the work injury herein. Claimant started driving
with Viking in the fall of 1989. At the time of injury,
claimant was driving with his wife as team driver and it was
agreed that he was grossing $575.00 per week but he had to
drive 70 hours per week to achieve this rate. As a part of
this job, claimant was required to load and unload pallets.
Claimant's itinerary took him almost everywhere in the con
tinental United States.
On or about February 3, 1990, claimant injured his
neck, mid-back and low back when he slipped and fell from
the cab of his truck to the ground, striking the running
board on the way down. Claimant was taken to the hospital
by his wife and he received emergency care. He was then
referred to Behrouz Rassekh, M.D., who diagnosed aggravation
of a prior existing spondylolysis of the cervical spine.
Claimant was then referred for treatment to Michael T.
O'Neil, M.D., a board certified orthopedic surgeon.
Although claimant complained of neck pain, Dr. O'Neil
reported that his primary complaint to him in March 1990 was
mid-back pain and coccyx and sacrum pain. At that time,
claimant stated that he had no prior back pain other than
occasional stiffness of the neck. Claimant was treated by
Dr. O'Neil over the next several months for chronic pain
until November 1, 1990, when the doctor opined that claimant
had reached maximum healing. Dr. O'Neil's treatment
remained conservative and despite continuing pain, which the
doctor believes is a permanent symptom, the surgery has not
been recommended.
Page 3
Based upon the opinions of Dr. O'Neil expressed in the
record, it is found that the work injury of February 3, 1990
aggravated prior degenerative but asymptomatic conditions
and was a cause of a 30 percent permanent partial impairment
to the body as a whole. Also based upon Dr. O'Neil's views,
as a result of this injury, claimant should not return to
work requiring repetitive lifting, stooping or bending or
lifting in excess of 25-30 pounds. Dr. O'Neil also recom
mends against employment requiring prolonged sitting or
standing over two hours without a change of position.
There is a contrary opinion from another orthopedic surgeon
in the record but he was only a one time evaluator. Due to
Dr. O'Neil's much greater clinical knowledge of claimant's
condition, his views were given the greater weight. Video
tapes and photos of claimant performing various activities
around his home were reviewed but not found to be particu
larly helpful in arriving at this decision. Claimant was
not observed doing anything inconsistent with the restric
tions imposed by Dr. O'Neil.
Claimant's medical condition before the work injury was
excellent and he had no functional impairments or ascertain
able disabilities despite a pre-existing condition of
spondylolisthesis in various portions of his back. Claimant
was able to fully perform physical tasks involving heavy
lifting; repetitive lifting, bending, twisting and stooping;
and, prolonged standing and sitting. Due to his current
physical limitations, claimant's medical condition prevents
him from returning to his former work as an over- the-road
truck driver or any other work requiring claimant to violate
his work restrictions. The fact that claimant cannot return
to work as a truck driver was a matter not disputed by
either of the two vocational rehabilitation consultants
retained in this case.
Claimant is in his late 40's, married and has only an
eleventh grade formal education. He has earned his GED.
Claimant's significant past employment consists of route
delivery/salesman for a bread company, including a short
time as a supervisor over other salesman and employment as a
trucker.
Given his age and lack of financial resources, claimant
has limited potential for vocational retraining via educa
tion. Vocational counselors retained in this case possessed
quite divergent views. The counselor retained by defendants
stated that claimant is excluded from only 35 percent of the
labor market by his work restrictions and his earnings could
equal or exceed his income at the time of injury in such
jobs as trucking dispatcher or vehicle sales. The counselor
retained by claimant opined that claimant is excluded from
49 percent of the labor market and only has potential earn
ings of a little over $200.00 per week. The estimate of
loss of earning capacities ranged from 0-5 percent to 56-60
percent. The estimates of lost earning capacity were not
helpful to the undersigned. The opinions with reference to
loss of jobs and estimates of potential income were more
helpful but neither opinion was convincing. The undersigned
believes the truth to lie in between the two opinions.
Page 4
Claimant has not returned to work and currently works
only as campground caretaker at his place of residence.
Claimant has not made much of an effort to look for suitable
work. The rehabilitation counselor hired by claimant who
stated that this was not unusual for disabled workers who
are suddenly faced with unemployment and are not familiar
with job hunting techniques. However, claimant has not even
contacted job service to register as a person looking for
work. He must assume some responsibility for his current
unemployment.
Due to all of the factors above, the work injury of
February 3, 1990, is found to be a cause of a 30 percent
loss of earning capacity.
The disputed medical expenses set forth in the prehear
ing report are found causally connected to the February 3,
1990 injury. This finding is based upon the uncontroverted
views of Dr. O'Neil expressed in his reports and deposition
testimony.
CONCLUSIONS OF LAW
I. Claimant must establish by a preponderance of the
evidence the extent of weekly benefits for permanent dis
ability to which claimant is entitled. As the claimant has
shown that the work injury was a cause of 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 disabil
ity" 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 restric
tion on work activity may or may not result in such a loss
of earning capacity. Examination of several factors deter
mines the extent to which a work injury and a resulting med
ical condition caused an industrial disability. These fac
tors 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).
In the case sub judice, it was found that claimant suf
fered a 30 percent loss of his earning capacity as a result
of the work injury. Such a finding entitles claimant to 150
weeks of permanent partial disability benefits as a matter
of law under Iowa Code section 85.34(2)(u) which is 30 per
Page 5
cent of 500 weeks, the maximum allowable number of weeks for
an injury to the body as a whole in that subsection.
II. Pursuant to Iowa Code section 85.27, claimant is
entitled to payment of reasonable medical expenses incurred
for treatment of a work injury. Claimant is entitled to an
order of reimbursement if he has paid those expenses.
Otherwise, claimant is entitled only to an order directing
the responsible defendants to make such payments directly to
the provider. See Krohn v. State, 420 N.W.2d 463 (Iowa
1988).
In the case at bar, all of the requested expenses were
found causally connected to the injury. Their reasonable
ness were never in question. Payment will be ordered
accordingly.
ORDER
1. Defendants shall pay to claimant one hundred fifty
(150) weeks of permanent partial disability benefits at a
rate of three hundred fifty-one and 43/l00 dollars ($351.43)
per week from November 1, 1990.
2. Defendants shall pay to claimant healing period
benefits as agreed to in the prehearing report.
3. Defendants shall pay the medical expenses listed in
the prehearing report. Claimant shall be reimbursed for any
of these expenses paid by him. Otherwise, defendants shall
pay the provider directly along with any lawful late payment
penalties imposed upon the account by the provider.
4. Defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against this award for all
benefits previously paid.
5. Defendants shall pay interest on weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
6. Defendants shall pay the costs of this action pur
suant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
7. Defendants shall file activity reports on the pay
ment of this award as requested by this agency pursuant to
rule 343 IAC 3.1.
Signed and filed this ____ day of May, 1992.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Page 6
Mr. Steven H. Howard
Attorney at Law
1000 North 72nd Street
Omaha, Nebraska 68114
Mr. Martin E. Spellman
Attorney at Law
1024 2nd Street
Box 550
Perry, Iowa 50220
Mr. W. Curtis Hewett
Attorney at Law
35 Main Place
P O Box 249
Council Bluffs, Iowa 51502
5-1803
Filed May 28, 1992
LARRY P. WALSHIRE
before the iowa industrial commissioner
____________________________________________________________
:
ROBERT D. CROUCH, :
:
Claimant, :
:
vs. :
: File No. 966325
VIKING FREIGHT SERVICE TRANS.,:
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
PROTECTIVE INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
Non-precedential, extent of disability case.