BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
ROBERT GLAWE,
File No. 966393
Claimant,
A R B I T R A T I O N
vs.
D E C I S I O N
IBP, INC.,
Employer,
Self-Insured,
Defendant.
_________________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition of
claimant, Robert Glawe, against his former self-insured employer,
IBP, Inc., defendant. Claimant filed his petition on January 24,
1991. In his petition he requested workers' compensation
benefits for a work-related injury allegedly occurring on July
21, 1990.
In the prehearing conference report, which was jointly filed
by the parties, the attorneys for the litigants indicated they
would be ready for a hearing on the matter after April 1, 1993.
Originally the hearing was set for August 19, 1993. However, on
April 16, 1993, claimant requested a continuance of the hearing
date. The ruling on the continuance was denied by a deputy
industrial commissioner. A joint request for a continuance was
subsequently filed by the parties on June 3, 1993. The ruling
was then granted by the same deputy industrial commissioner. The
case was reassigned for December 20, 1994.
The hearing was held at the Pine Crest Building in Waterloo,
Iowa on the aforementioned date. The record consists of the
testimony of claimant. The record also consists of the testimony
of claimant's spouse, Kathleen Glawe. Finally, the record is
comprised of the following exhibits: claimant's exhibits 1-10
and defendant's exhibits A-K.
At the time of the writing of this decision, there is no
first report of injury in the administrative file. The defendant
is ordered to file a first report of injury within 20 days of the
filing of this decision. Failure to do so may result in the
imposition of sanctions.
ISSUES
The parties stipulated claimant sustained a work-related
injury which occurred on July 21, 1990. The parties also
stipulated that prior to the hearing on this matter defendant
paid claimant 146.857 weeks of benefits at the stipulated weekly
benefit rate of $211.67 per week.
The issues to be determined are: 1) whether claimant's work
injury is a cause of temporary or permanent disability;
2) whether claimant is entitled to any healing period or
permanent disability benefits; 3) whether claimant is entitled to
any medical benefits pursuant to section 85.27 of the Iowa Code;
and 4) whether claimant tendered notice pursuant to section 85.23
of the Iowa Code with respect to any allegations of neck or back
injuries.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The deputy, having heard the testimony and considered all of
the evidence, makes the following findings of fact and
conclusions of law:
The burden of proof is on the party asserting the
affirmative of an issue in an administrative proceeding; "on the
party who would suffer loss if the issue were not established."
Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 1973); Norland v.
Ides, 412 N.W.2d 904 (Iowa 1987).
Claimant is 56-years-old. At the time of his work injury
claimant was 52. He is the married father of three adult
children. He is a 1957 Manchester High School graduate. He has
no education beyond the high school level but he did serve in the
United States Marine Corps. He was honorably discharged.
Claimant has a long history of stable work. For many years
he worked as an assistant manager and later the general manager
of a restaurant chain which was known for its buffet menu. His
duties varied since he assisted his employees whenever they
needed help or supervision. Claimant left that employment in
1985.
After 1985, claimant held several jobs which required
special skills, such as printing. For two years he was self-
employed as a salesperson. He sold fishing gear at various trade
shows. He left after two years, as his business was not
profitable.
In May of 1990, claimant commenced employment with the
present defendant. He was hired to work in the maintenance
department as a maintenance worker for the upper kill floor. His
duties included maintaining equipment such as the large split
chain saw. It weighed 125 pounds and was designed to split a hog
into two parts. Throughout a work shift, claimant was constantly
lifting the saw.
On the date of the work injury, claimant lifted the split
saw and he experienced severe pain near both shoulders, across
his back and on both sides. He completed the shift but he did
not discuss his condition with any supervisor at the plant.
Eventually claimant went to the nurse's station, per the
direction of the safety manager.
After conservative measures, claimant, on his own, sought
chiropractic manipulation from D. A. Widen, D.C. (Exhibit 2).
Still claimant did not improve.
Eventually, claimant was sent to Jitu D. Kothari, M.D., a
local orthopedic surgeon. Dr. Kothari became the authorized
treating physician. Claimant complained of difficulties of both
shoulders, neck and back (Ex. B-2). The surgeon ordered pain
medication and physical therapy. His diagnosis was "impingement
syndrome of the left shoulder" (Ex. 9-14).
Dr. Kothari causally related claimant's condition to the
work injury (Ex. 9-23). The surgeon testified there was nothing
in claimant's medical history which would indicate his shoulder
problems were anything but work related (Ex. 9-23).
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).
Despite Dr. Kothari's conservative treatment, claimant did
not improve to the satisfaction of his surgeon. Approximately
one year after his initial appointment, Dr. Kothari performed an
arthroscopic evaluation of the left shoulder and then an
arthroscopic decompression of the subacromial space (Ex. 9-15).
Following the surgery, claimant engaged in physical therapy.
On December 22, 1992, Dr. Kothari evaluated and examined
claimant for a permanent impairment. The surgeon opined:
He underwent arthroscopic decompression of the
subacromial space with partial acromioplasty on 3-19-
92. He also had a small flap tear of the labrum which
was also excised. Following his surgery, he has
improved. He had intensive and extended physical
therapy. However, more recently, while in physical
therapy, he had increased discomfort in his left
shoulder, and he almost passed out, so the physical
therapy at this time was discontinued.
At present, he has the following job restriction.
No overhead work and no overhead reaching with the left
shoulder. He should also avoid doing any heavy manual
work, such as lifting more than 10-15 pounds with his
left arm. Pushing and pulling with the left arm is not
recommended.
His disability rating evaluation is as follows,
based on range of motion of the left shoulder,
according to the Guide to the Evaluation of Permanent
Impairment by the American Medical Association.
Motion Degree %
Forward elevation 135 3
Abduction 110 3
External rotation 35 2
Internal rotation normal 0
Extension 30 1
So, this patient has a total of 9% permanent
impairment and loss of physical function of the left
upper extremity on account of restricted range of
motion of the left shoulder.
He also continues to have night pain. He also has
pain at the end of the day. He requires pain pills or
over the counter analgesics for pain control. He has
difficulty sleeping at night. In my opinion, he has 6%
additional permanent impairment and loss of physical
function of the left upper extremity on account of the
residual pain in the left shoulder.
So, he has a total of 15% permanent impairment and
loss of physical function of the left upper extremity
on account of his work related injury to the left
shoulder.
(Ex. B-10)
Claimant continued to verbalize complaints he had with his
left shoulder. Dr. Kothari referred claimant to James E. Crouse,
M.D., another orthopedic surgeon. Dr. Crouse examined claimant
on March 22, 1993. The diagnosis was "persistent left shoulder
pain" (Ex. 8-14). Dr. Crouse causally related claimant's
condition to the work injury (Ex. 3).
On June 3, 1993, Dr. Crouse performed an acromioplasty on
claimant's left shoulder as well as an excision of the distal
clavicle. The post diagnosis was "Impingement syndrome, left
shoulder with AC joint arthritis of left shoulder" (Ex. 2-1).
Subsequent to the surgery, claimant encountered problems
with his urinary tract. He developed urinary retention. Michael
O. Welton, M.D., a urologist treated claimant for acute urinary
retention (Ex. 6-1). Dr. Welton performed a transurethral
resection of the prostate (Ex. 6-1). According to Dr. Welton's
opinion, claimant's surgical procedure was precipitated by the
second surgical procedure on his left shoulder (Ex. 6-1).
Dr. Crouse performed another arthroscopic surgical procedure
involving claimant's left shoulder. On February 8, 1994,
claimant underwent a partial synovectomy of the left shoulder and
debridement of the scarring subacromial space (Ex. 3).
The deposition testimony of Dr. Crouse included the
surgeon's opinions regarding permanency and restrictions. Dr.
Crouse opined:
Q. Doctor, did you -- or strike that. Doctor, have
you reached an opinion regarding his functional
impairment under the AMA Guidelines?
A. Yes.
Q. And would you tell us what those opinions are?
A. I believe that Mr. Glawe has a 16% impairment of
his right upper extremity, which would be a 10%
impairment of the body as a whole. And based on
history, his persistent complaints and his x-rays
changes through the thoracic spine, a 5% impairment of
the upper back.
Q. The 10% body as a whole disability is related to
his shoulder, is that correct?
A. Yes.
Q. And the 5% body as a whole disability is related
to the upper back symptoms he describes, is that
correct?
A. Yes.
Q. And together you have arrived at a 15% body as a
whole disability, is that correct?
A. Combining those two, yes.
Q. In your opinion is this disability a permanent
disability?
A. Yes.
Q. Have you reached any opinions regarding what, if
any, work restrictions Mr. Glawe has?
A. Mr. Glawe is going to be restricted to light
work. He cannot do heavy lifting, or bending stooping
and lifting. He cannot do repetitive pushing and
pulling. He is not going to be able to work with his
arms at shoulder level or above. I would recommend a
10 to 15 pound restriction for his lifting. Again,
noting that he is not going to be able to work at
shoulder level and above with his arms.
Q. The 10 to 15 pound lifting restriction would be
lifting that would be below shoulder level, is that
correct?
A. Yes.
Q. You're recommending that he not do any lifting
or work at shoulder level or above, is that correct?
A. That's correct.
Q. Okay. And that is based on the problems that
he's had with the shoulder joint and back, is that
correct?
A. That's correct.
(Ex. 8-38 to 40)
Claimant has proven to the satisfaction of this deputy
industrial commissioner that he has a permanent condition to his
left shoulder and as well as to the upper back and neck.
Defendant maintains it had no notice of the back and neck
complaints. However, the argument has little merit. From the
onset, claimant has voiced complaints not only with both
shoulders but also with his neck and back. Defendant has had
notice of all complaints which claimant has alleged are related
to the current work injury.
Claimant's condition is a permanent injury to the body as a
whole. Claimant maintains he is entitled to an industrial
disability as a result of his work injury.
An industrial disability affects more than a functional
impairment. 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
and inability to engage in employment for which the employee is
fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125
N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110
N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by a
medical evaluator does not equate to industrial disability.
Impairment and disability are not synonymous. The degree of
industrial disability can be much different than the degree of
impairment because industrial disability references to loss of
earning capacity and impairment references to anatomical or
functional abnormality or loss. Although loss of function is to
be considered and disability can rarely be found without it, it
is not so that a degree of industrial disability is
proportionally related to a degree of impairment of bodily
function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to the
injury, immediately after the injury, and presently; the situs of
the injury, its severity and the length of the healing period;
the work experience of the employee prior to the injury and after
the injury and the potential for rehabilitation; the employee's
qualifications intellectually, emotionally and physically;
earnings prior and subsequent to the injury; age; education;
motivation; functional impairment as a result of the injury; and
inability because of the injury to engage in employment for which
the employee is fitted. Loss of earnings caused by a job
transfer for reasons related to the injury is also relevant.
Likewise, an employer's refusal to give any sort of work to an
impaired employee may justify an award of disability. McSpadden
v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are
matters which the finder of fact considers collectively in
arriving at the determination of the degree of industrial
disability.
There are no weighting guidelines that indicate how each of
the factors are to be considered. Neither does a rating of
functional impairment directly correlate to a degree of
industrial disability to the body as a whole. In other words,
there are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw upon
prior experience as well as general and specialized knowledge to
make the finding with regard to degree of industrial disability.
See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 529 (App. March 26, 1985);
Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28, 1985).
Compensation for permanent partial disability shall begin at
the termination of the healing period. Compensation shall be
paid in relation to 500 weeks as the disability bears to the body
as a whole. Section 85.34.
In the case before the undersigned, claimant has a
functional impairment rating in the area of 15 percent of the
body as a whole. Medical evidence supports the impairment
ratings which were provided by the treating surgeons.
The same treating surgeons also imposed severe restrictions
on claimant with respect to the duties he can perform in the work
place. Claimant is precluded from overhead work. His lifting
restrictions prohibit claimant from applying for numerous jobs in
the packing industry. Defendant has no position to offer
claimant. Claimant is an older worker and he will have
difficulties obtaining suitable employment at the wage rate he
received prior to the work injury. Because of claimant's age,
retraining is unlikely. He has not been offered rehabilitation.
He has been off work for many years. Re-entry into the labor
market will be difficult, if not impossible. Perhaps he can find
some employment in the restaurant business. However, positions
in the restaurant industry are at the low end of the wage scale.
Therefore, in light of the foregoing, it is the
determination of the undersigned that claimant is entitled to a
75 percent permanent partial disability. He is entitled to 375
weeks of permanent partial disability benefits at the corrected
rate of $216.29 per week and commencing from June 9, 1994.
The next issue to address is the issue of healing period
benefits. 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 has been in the healing period from the date of the
work injury, July 21, 1990 through June 8, 1994. The June 8,
1994 date is the designated date when claimant obtained maximum
medical improvement (Ex. 8-40). This is a period of 202.714
weeks. Claimant is to be paid at the stipulated rate of $216.29
per week.
The final issue to address is the issue of medical benefits.
Section 85.27 of the Iowa Code governs the payment of medical
bills.
Claimant is requesting the payment of $1690.88 in medical
bills. All of the requested medical bills are related to
claimant's work injury. However, the chiropractic bill of Dr.
Wilden is unauthorized treatment. It is disallowed. Defendant
is not required to pay for the treatments provided by Dr. Widen.
Defendant is liable for the remaining $420.72 in medical bills.
ORDER
THEREFORE, IT IS ORDERED:
Defendant shall pay unto claimant three hundred seventy-five
(375) weeks of permanent partial disability benefits at the
corrected rate of two hundred sixteen and 29/l00 dollars
($216.29) per week.
Defendant shall also pay unto claimant two hundred two point
seven one four (202.714) weeks of healing period benefits at the
corrected rate of two hundred sixteen and 29/l00 dollars
($216.29) per week.
Accrued benefits are to be paid in a lump sum together with
statutory interest at the rate of ten percent (10%) per year
pursuant to section 85.30, Iowa Code, as amended.
Defendant is liable for medical expenses in the sum of four
hundred twenty and 72/l00 dollars ($420.72).
Defendant is ordered to file a first report of injury within
twenty (20) days of the filing of this decision. Failure to do
so may result in the imposition of sanctions.
Costs are taxed to defendant pursuant to rule 343 IAC 4.33.
Signed and filed this ____ day of June, 1995.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. David W. Stamp
Mr. H. Daniel Holm, Jr.
Attorneys at Law
3324 Kimball Ave
PO Box 2696
Waterloo IA 50704-2696
Mr. Paul T. Kirchner
Attorney at Law
PO Box 515 Dept. #41
Dakota City NE 68731
5-1800; 5-1803
Filed June 16, 1995
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ROBERT GLAWE,
File No. 966393
Claimant,
A R B I T R A T I O N
vs.
D E C I S I O N
IBP, INC.,
Employer,
Self-Insured,
Defendant.
____________________________________________________________
5-1800; 5-1803
Claimant is entitled to 375 weeks of permanent partial
disability benefits.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
MICHAEL E. DOWELL, :
:
Claimant, : File No. 966524
:
vs. : A R B I T R A T I O N
:
J. I. CASE COMPANY, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
statement of the case
This is a proceeding in arbitration brought by Michael
E. Dowell, claimant, against J. I. Case Company,
self-insured employer, to recover benefits under the Iowa
Workers' Compensation Act as a result of an injury sustained
on August 6, 1990. This matter came on for hearing before
the undersigned deputy industrial commissioner on March 16,
1992, in Burlington, Iowa. The record was considered fully
submitted at the close of the hearing. The claimant was
present and testified. Also present and testifying was
Daniel Snyder. The documentary evidence identified in the
record consists of joint exhibits 1 through 9.
issues
Pursuant to the prehearing report and order dated March
16, 1992, the parties have presented the following issues
for resolution:
. Whether claimant sustained an injury on August 6,
1990, which arose out of and in the course of employment
with employer;
. Whether the alleged injury is a cause of temporary
and permanent disability; and,
. Whether claimant is entitled to medical bills
pursuant to Iowa Code section 85.27.
findings of fact
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Claimant is 36 years old and went to work for employer
in 1974 as a machine operator. He was laid off for about
two and one-half years until February 1990, when he returned
as a press form operator. In this capacity, he did piece
work in which he handled between 400 and 1000 parts of steel
a night. This work required heavy lifting, pushing,
Page 2
pulling, and repetitive bilateral upper extremity use.
In 1985, claimant experienced numbness and tingling in
his hands, however, this resolved during his two and
one-half-year layoff. Upon return to work in February 1990,
he noticed a progressive enlargement of the tissues in his
wrist and arm. He also experienced pain and tingling in his
hands. In August 1990, he reported these problems to the
company doctor, J. J. Kivlahan, M.D. Dr. Kivlahan advised
him to see a specialist (exhibit 3).
Claimant saw Michael W. Hendricks, M.D., an orthopedic
surgeon, on August 6, 1990, for evaluation of bilateral hand
pain and a mass in the distal right forearm. Nerve
conduction studies were obtained on August 20, 1990, and
these showed an increase in the findings of carpal tunnel
syndrome. On October 18, 1990, claimant underwent a carpal
tunnel release on the right with excision of an accessory
palmaris longus tendon. Claimant was last treated by Dr.
Hendricks on December 14, 1990. He was released to return
to work on December 16, 1990, without limitations (exs. 1-2
& 9).
On November 11, 1991, Dr. Hendricks reported that
claimant obtained full and complete recovery from his right
carpal tunnel surgery and had no residual symptoms.
Claimant testified that he did not return for left carpal
tunnel syndrome surgery because his symptoms had resolved.
Claimant returned to work and performed his usual job from
December 14, 1990, until three weeks prior to the hearing
when he exercised his contract by-out right with defendant.
No accommodations were made at work and claimant was able to
perform his job without limitations or restrictions.
Nevertheless, on November 11, 1991, without reexamining
claimant, Dr. Hendricks gave him a permanent partial
impairment rating as a result of his unoperated left carpal
tunnel syndrome. However, he imposed no physical
restrictions or limitations. Presumably, this rating was
based on the result of nerve conduction studies obtained on
August 20, 1990. Claimant testified that his left arm
problems had resolved.
conclusions of law
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on August 6,
1990, which arose out of and in the course of his
employment. McDowell v. Town of Clarksville, 241 N.W.2d
904, 908 (Iowa 1976); Musselman v. Central Telephone Co.,
154 N.W.2d 128, 130 (Iowa 1967). The words "arising out of"
have been interpreted to refer to the cause and origin of
the injury. McClure v. Union County, 188 N.W.2d 283, 287
(Iowa 1971); Crowe v. DeSoto Consolidated School District,
68 N.W.2d 63, 65 (Iowa 1955). The words "in the course of"
refer to the time, place and circumstances of the injury.
McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. An
injury occurs in the course of the employment when it is
within the period of employment at a place the employee may
reasonably be, and while the employee is doing work assigned
by the employer or something incidental to it. Cedar Rapids
Page 3
Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa
1979), McClure, 188 N.W.2d at 287; Musselman, 154 N.W.2d at
130.
The Supreme Court has defined a personal injury for the
purposes of workers' compensation cases. Almquist v.
Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this
case the Court found that a personal injury, is an injury to
the body, the impairment of health, or a disease, not
excluded by the Workers' Compensation Act, which comes
about, not through the natural building up and tearing down
of the human body, but because of a traumatic or other hurt
or damage to the health or body of an employee. The injury
to the human body must be something, whether an accident or
not, that acts extraneously to the natural processes of
nature, and thereby impairs the health, overcomes, injures,
interrupts, or destroys some function of the body, or
otherwise damages or injures a part or all of the body.
The Almquist Court further observed that while a
personal injury does not include an occupational disease
under the Workers' Compensation Act, yet an injury to the
health may be a personal injury. A personal injury includes
a disease resulting from an injury. However, the result of
changes in the human body incident to the general processes
of nature do not amount to a personal injury. This is true,
even though natural change may come about because the life
has been devoted to labor and hard work. Results of those
natural changes do not constitute a personal injury even
though the same brings about impairment of health or the
total or partial incapacity of the functions of the human
body.
The Supreme Court has also recognized that a cumulative
injury may occur over a period of time. The injury in such
cases occurs when, because of pain or physical disability,
the claimant is compelled to leave work. McKeever Custom
Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985).
Moreover, claimant's last employer becomes liable for the
cumulative injury, even if the incidents that lead to the
ultimate injury do not occur while a claimant is employed
with the last employer. McKeever, 379 N.W.2d at 376; See
also Doerfer Division of CCA v. Nicol, 359 N.W.2d 428,
434-35 (Iowa 1984).
The evidence indicates that claimant was initially
evaluated for numbness and tingling in his hand in 1985.
However, the problem was not terribly bothersome at that
time, despite the positive electrical findings on nerve
conduction velocity tests of early carpal tunnel syndrome.
No surgical procedure was performed. This problem persisted
until he was laid off from employer's work for a number of
years. After returning to work in the early part of 1990,
he began to notice a return of the numbness and tingling and
a progressive enlargement of the tissues at the volar aspect
of the wrist. Repeat nerve conduction studies on August 20,
1990, showed an increase in the findings of carpal tunnel
syndrome. Dr. Hendricks indicated that there was a definite
relationship between claimant's symptoms and his work
activity (exhibit 2).
Page 4
On October 18, 1990, claimant underwent surgery.
According to claimant, he returned to work on December 14,
1990, with no residual symptoms.
Defendant has presented no evidence disputing Dr.
Hendricks' assessment regarding the etiology of claimant's
impairment. Claimant was off work from November 2, 1990,
through December 13, 1990, for treatment of his work-related
injury. Pursuant to Iowa Code section 85.34, claimant is
entitled to healing period benefits from November 2, 1990,
through December 13, 1990.
Since claimant has suffered an injury, the next
question to be resolved is whether the injury has caused a
permanent disability. Claimant has the burden of proof.
Dr. Hendricks reported on November 11, 1991, that, to
the best of his knowledge, claimant's recovery from surgery
has been full and complete without residual symptoms.
Claimant did not return to Dr. Hendricks after surgery on
October 18, 1990, and no reevaluation was performed
regarding his left carpal tunnel syndrome. Therefore, Dr.
Page 5
Hendricks' permanent partial impairment rating as to the
left upper extremity is without merit. Claimant did not
seek any additional medical treatment subsequent to surgery.
He admitted at the hearing that his left arm problems had
resolved and he was fully recovered from his right carpal
tunnel syndrome. Therefore, claimant has not shown by a
preponderance of the evidence that he has sustained a
permanent impairment as a result of his bilateral carpal
tunnel syndrome.
The next issue to be determined is whether claimant is
entitled to medical expenses under Iowa Code section 85.27.
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. Section 85.27.; Holbert v.
Townsend Engineering Co., Thirty-second Biennial Report of
the Industrial Commissioner 78 (Review-reopen 1975).
Claimant has the burden of proving that the fees charged for
such services are reasonable. Anderson v. High Rise Constr.
Specialists, Inc., File No. 850096 (App. 1990).
Claimant is not entitled to reimbursement for medical
bills unless claimant shows they were paid from claimant's
funds. See Caylor v. Employers Mut. Casualty Co., 337
N.W.2d 890 (Iowa Ct. App. 1983).
When a designated physician refers a patient to another
physician, that physician acts as the defendant employer's
agent. Permission for the referral from defendants is not
necessary. Kittrell v. Allen Memorial Hospital,
Thirty-fourth Biennial Report of the Industrial Commissioner
164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
An employer's right to select the provider of medical
treatment to an injured worker does not include the right to
determine how an injured worker should be diagnosed,
evaluated, treated or other matters of professional medical
judgment. Assmann v. Blue Star Foods, Inc., File No. 866389
(Declaratory Ruling, May 18, 1988).
Defendant cannot deny that an injury arose out of and
in the course of employment on one hand and seek to guide
Page 6
medical treatment on the other. Barnhart v. MAQ, Inc., I
Iowa Industrial Commissioner Report 16 (Appeal Decision
1981).
Therefore, claimant is entitled to be reimbursed
$161.20 for a medical deductible he paid out-of-pocket.
order
THEREFORE, IT IS ORDERED:
That defendant pay to claimant six (6) weeks of healing
period benefits at the rate of four hundred sixty-four and
50/100 dollars ($464.50) commencing November 2, 1990,
through December 13, 1990.
That defendant pay to claimant one hundred sixty-one
and 20/100 dollars ($161.20) in out-of-pocket medical
deductible expenses.
That defendant receive credit under Iowa Code section
85.38(2) for previous payments made under a nonoccupational
group plan.
That defendant receive credit for any benefits
previously paid.
That defendant pay accrued amounts in lump sum.
That defendant pay all costs pursuant to rule 343 IAC
4.33.
That defendant pay interest pursuant to Iowa Code
section 85.30.
That defendant file claim activity reports as required
by the agency.
Signed and filed this ____ day of March, 1992.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Page 7
Copies to:
Mr. James Hoffman
Attorney at Law
Middle Road
PO BOX 1087
Keokuk, Iowa 52632-1087
Mr. William J. Cahill
Attorney at Law
200 Jefferson St.
Burlington, Iowa 52601
5-1802; 5-1803; 5-2501
Filed March 31, 1992
JEAN M. INGRASSIA
before the iowa industrial commissioner
____________________________________________________________
:
MICHAEL E. DOWELL, :
:
Claimant, : File No. 966524
:
vs. : A R B I T R A T I O N
:
J. I. CASE COMPANY, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
__________________________________________________________
5-1802
Claimant proved by a preponderance of the evidence that he
received a work-related injury arising out of and in the
course of employment with employer. Claimant was diagnosed
with bilateral carpal tunnel syndrome and underwent surgery
on the right wrist only. Claimant's treating surgeon
related claimant's injury to his work as a laborer and
machine operator with employer. Claimant was awarded
healing period benefits from November 2, 1990 through
December 13, 1990.
5-1803
Claimant's surgeon opined that claimant had no residual
symptoms from his right carpal tunnel release but that he
sustained 5 percent permanent partial disability due to left
carpal tunnel syndrome although surgery was not performed on
this extremity. Nevertheless, claimant was given no
restrictions or limitations and claimant testified he was
asymptomatic. Therefore, no permanency established.
5-2501
Claimant was awarded previously paid out-of-pocket medical
deductible in the amount of $161.20 because his injury was
determined to be causally connected to his work.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ARTHUR OWEN, :
:
Claimant, : File No. 966529
:
vs. : A P P E A L
:
DEERE AND COMPANY, : 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
Those portions of the proposed agency decision pertaining to
issues not raised on appeal are adopted as a part of this appeal
decision. The issues raised on appeal are:
1. Whether the deputy industrial commissioner erred
by holding that the employer is not required to
specially plead the defenses of sec. 85B.8 of the Code.
2. Whether the deputy industrial commissioner erred
in not finding the date of claimant's hearing loss
injury was October 8, 1989.
3. Whether the deputy industrial commissioner erred
in holding that a person placed on long term disability
status pursuant to the Deere & Company collective
bargaining agreement did not constitute layoff status
pursuant to sec. 85B.8 of the Code.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed April 20, 1992 are adopted as final agency action.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed April 20, 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.
Page 2
*****
[Defendants were not required to plead Iowa Code section
85B.8 as an affirmative defense. That section defines an element
of claimant's cause of action, and claimant bears the burden of
proof to show that he is entitled to benefits.
Iowa Code section 85B.8 states as follows:]
A claim for occupational hearing loss due to
excessive noise levels may be filed six months after
separation from the employment in which the employee
was exposed to excessive noise levels. The date of the
injury shall be the date of occurrence of any one of
the following events:
1. Transfer from excessive noise level employment
by an employer.
2. Retirement.
3. Termination of the employer-employee
relationship.
The date of injury for a layoff which continues for
a period longer than one year shall be six months after
the date of the layoff. However, the date of the
injury for any loss of hearing incurred prior to
January 1, 1981 shall not be earlier than the
occurrence of any one of the above events.
*****
[Claimant's present status under the employer's long-term
disability plan is clearly not a layoff. Similarly, claimant has
not been transferred from the noise level employment by the
employer. Claimant has not retired. Claimant, under the
long-term disability plan, is still technically an employee of
the employer, even though the evidence shows that claimant's
disability is such that he is not likely to ever be recalled to
active work.
Thus, claimant does not meet any of the enumerated criteria
for an "occurrence" under Iowa Code 85B.8, and in addition
claimant has not been laid off. The deputy industrial
commissioner thus concluded that claimant's action was not ripe
and the case was dismissed.
However, this narrow reading of 85B.8 leads to the
conclusion that claimant, as long as he is on long-term
disability, cannot bring an action for his alleged hearing loss.
The record shows that claimant's long-term disability eligibility
could last until the year 2007. To hold that 85B.8 requires
claimant to wait 17 years after his last exposure to the noise
levels before bringing an action for hearing loss benefits is an
unreasonable interpretation of the statute and would not reflect
the intention of the legislature. This is especially egregious
Page 3
when it is considered that claimant's long-term disability status
was due to unrelated back injuries and not his hearing loss.
The Iowa Workers' Compensation Law has been held to be "for
the benefit of the working man and should be, within reason,
liberally construed." Barton v. Nevada Poultry Co., 253 Iowa
285, 289, 110 N.W.2d 660, 662 (1961). Also see Irish v. McCreary
Saw Mill, 175 N.W.2d 374 (Iowa 1970). The Iowa Supreme Court has
recently reaffirmed this by saying "We construe the Act liberally
in favor of the employee; we resolve all doubts in favor of the
employee." Hanson v. Reichelt, Iowa Supreme Court, February 21,
1990 [citing Teel v. McCord, 394 N.W.2d 405, 406-407 (Iowa
1986)]. Also see Bearce v. FMC Corporation, 465 N.W.2d 531 (Iowa
1991). The primary purpose of the workers' compensation statute
is to benefit workers and workers' dependents insofar as the
statute permits and than the statute is to be interpreted
liberally with a view toward that objective. Caterpillar Tractor
Co. v. Shook, 313 N.W.2d 503 (1981)
These rules of statutory construction have been applied to
interpreting Iowa Code section 85B.8 John Deere Dubuque Works v.
Weyant, 442 N.W.2d 101 (Iowa 1989). There, the Iowa Supreme
Court stated:
When interpreting a statute, our ultimate goal is to
ascertain and give effect to the intention of the
legislature. See Kohrt v. Yetter, 344 N.W.2d 245, 246
(Iowa 1984). We seek a reasonable interpretation that
will best effect the purpose of the statute and avoid
an absurd result. Harden v. State, 434 N.W.2d 881, 884
(Iowa 1989) We consider all portions of the statute
together, without attributing undue importance to any
single or isolated portion. Id. When two
interpretations of a limitations statute are possible,
the one giving the longer period to a litigant seeking
relief is to be preferred and applied. Meyers, 410
N.W.2d at 257.
Although the deputy duly applied 85B.8 according to its
terms, it appears that the intent of the section is contained in
the first paragraph of the section, which allows an employee to
bring an action for hearing loss "six months after separation
from the employment in which the employee was exposed to
excessive noise levels." The section then sets forth four
alternatives that may constitute a separation from excessive
noise level employment. Although going on long-term disability
status is not enumerated in the section, such status under the
facts of this case nevertheless represents a separation from
excessive noise level employment. Claimant may still technically
be an employee of John Deere, but the practical reality is that
he has been separated from the employment that exposed him to
excessive noise.
Alternatively, claimant's placement on long-term disability
with little possibility of recall, as the record indicates here,
essentially constitutes a termination of the employer-employee
relationship as set forth in Iowa Code 85B.8(3). Although
claimant still enjoys some of the benefits of the
Page 4
employer-employee relationship for other purposes, such as
accumulating seniority, again the practical result is that, for
purposes of his hearing loss exposure, the relationship ended
when he left work to go on long-term disability.
Under either analysis, claimant is held to have separated
from the employment in which he was exposed to excessive noise
levels on the date when claimant left his excessive noise level
work and went on long-term disability. This holding is limited
to the facts of this case.]
WHEREFORE, the decision of the deputy is reversed.
ORDER
THEREFORE, it is ordered:
As the deputy industrial commissioner who heard the evidence
in the case did not reach the other issues because of the ruling
on the 85B.8 issue, it is appropriate to remand this case for
further proceedings by the deputy on any other issues presented.
That defendant shall pay the costs of the appeal including
the transcription of the hearing. Claimant shall pay all other
costs.
Signed and filed this ____ day of May, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert D. Fulton
Attorney at Law
Sixth Floor
First National Building
P O Box 2634
Waterloo, Iowa 50704
Mr. John W. Rathert
Attorney at Law
620 Lafayette Street
P O Box 178
Waterloo, Iowa 50704
2208
Filed May 26, 1993
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ARTHUR OWEN, :
:
Claimant, : File No. 966529
:
vs. : A P P E A L
:
DEERE AND COMPANY, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
:
___________________________________________________________
2208
Hearing loss - Claimant was on long-term disability status
from John Deere with little possibility of recall. Under
the union contract, claimant, while on long-term disability,
was still technically an employee. Claimant had apparently
chosen long-term disability rather than a total disability
pension because of a slightly higher monthly income and
continuing accumulation of seniority. Claimant would remain
eligible for long-term disability until the year 2007.
On appeal, reversed holding that claimant's action for
hearing loss was not ripe because he did not fit any of the
enumerated events in 85B.8 (transfer from excessive noise
level, retirement, termination of employer-employee
relationship, or layoff). Instead, it was held that the
statute was to be liberally construed, and requiring
claimant to wait perhaps 17 years to bring his action for
hearing loss was not legislative intent. Preliminary
language of 85B.8 speaks of bringing an action six months
"after separation from the employment in which the employee
was exposed to excessive noise levels." Held that
claimant's going on long-term disability constituted either
a termination of the employer-employee relationship under
85B.8 or, alternatively, met the over-arching requirement of
85B.8 of separation from employment, and claimant's action
for hearing loss benefits was ripe. Holding limited to
facts of this case.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
ARTHUR OWEN, :
:
Claimant, : File No. 966529
:
vs. :
: A R B I T R A T I O N
DEERE AND COMPANY, :
: D E C I S I O N
Employer, :
Self-Insured, :
Defendant. :
:
___________________________________________________________
statement of the case
This case came on for hearing on April 9, 1992, at
Waterloo, Iowa. The record in the proceedings consist of
the testimony of the claimant; claimant's wife, Patricia
Owen; Wilbur Frahm; and, Jim Stewart; and, joint exhibits 1
through 12.
ISSUES
The issues for resolution are:
1. Whether claimant incurred an occupational hearing
loss injury which arose out of and in the course of his
employment on April 8, 1989;
2. The extent of permanent disability and claimant's
entitlement to disability benefits, if any, and the
beginning dates of any benefits;
3. Whether claimant's alleged occupational hearing
loss is causally connected to claimant's alleged injury on
April 8, 1989;
4. Whether claimant is entitled to a hearing aid and
the cost under 85B.12
findings of fact
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant is a 53-year-old who left school after the
seventh grade. Claimant related his work history prior to
beginning work with defendant employer on March 27, 1972,
which is claimant's seniority date for purposes of any
layoff. He last worked for defendant employer April 7,
1989.
Claimant went into detail as to his various job duties,
location of the departments, the machines and the extent and
period and nature of the noise at work (Joint Exhibit 5).
Page 2
Claimant testified he has had basically no exposure to
excessive noise outside of his employment with John Deere.
Claimant said he is currently on long-term disability
because of three back operations and foot surgery. His last
foot surgery was six weeks ago. Claimant went off work
originally because of his back problem. These medical
problems are not an issue. Claimant is before this agency
on an alleged hearing loss.
Claimant's current long-term disability was triggered
under the union contract after claimant was off work and on
weekly indemnity (WI) for one year.
Claimant is also receiving social security benefits.
He said his doctor put him under weight restrictions.
Claimant said he received a letter six months ago indicating
social security is reviewing his case. He has heard nothing
from them since.
Claimant related a discussion nine months ago with
Arnold E. Delbridge, M.D., as to going back to work.
Claimant doesn't believe he can. Claimant said C.R. Buck,
M.D., the company's in-house doctor, said he had something
to say about that. Claimant said no John Deere doctor said
he can return to work and claimant sees no way he can return
due to his legs, feet and back.
Claimant indicated he just found out yesterday that
there are other benefits to which he may be entitled other
than long-term disability. Claimant is currently receiving
$684 per month long-term disability. Claimant indicated
that John Deere recommended claimant file for long-term
disability. He contends he never filed for a total
permanent disability pension because he didn't know about it
until yesterday. Claimant was later recalled and indicated
he didn't know about these other benefits until the day of
the hearing.
Claimant indicated on cross-examination that he blames
Department 67 for his hearing loss, but when transferred to
Department 57 on August 28, 1983, he had realized his
hearing loss was permanent. Claimant said this was
confirmed by a specialist in August of 1984 (Jt. Ex. 3).
Claimant indicated he wore protectors on his ears if he
needed it but never wore it in Department 67 until it was
too late and damage was already done. Claimant said if he
then wore the ear protectors, he would have the ringing in
his head so he would place the protectors on the edge of his
ears so it would appear he was wearing them.
Claimant feels he has lost some hearing since April 7,
1989. His last test at work was February 1989. Claimant
agreed if he has lost hearing since that day, it would be
after he left work. Claimant acknowledged he knew of his
hearing loss and that he felt the work caused it.
Wilbur Frahm, a retiree from John Deere in September
Page 3
1987, worked with claimant in Department 67 and then later
in Department 57. He corroborated claimant's testimony as
to the noisy conditions in the department and that
claimant's fellow employees would play jokes on the claimant
by banging tools on his welding booth. He related claimant
would storm out of his booth and give people heck for
hitting his work booth.
Patricia Owen, claimant's wife, testified she first met
claimant in February 1982 and married him on August 7, 1982.
She said claimant complained of noise at work and that his
head hurt and his ears were ringing. She said she didn't
notice claimant's hearing problem when she first dated
claimant but that his hearing gradually became worse through
the fall of 1982 and then leveled off.
Jim Stewart, president of Local 838 John Deere Union
since 1989, has worked for John Deere 28 years and he is
familiar with the union contract. One of the books covers
layoffs, job security and wages and the second book covers
pension, health benefits, etc.
Mr. Stewart explained that if an employee is disabled,
he or she receives weekly indemnity (WI) and if disabled for
over one year, then an employee receives long-term
disability (LTD) after the first year. It is necessary for
one to be totally disabled to get LTD, but he said
disability is determined by the outside doctor. He stated
seniority minus one year determines the weekly indemnity.
He said claimant's seniority date is 1972 and at the time of
the alleged hearing loss injury, claimant had 16 years (17
years minus one). Therefore, claimant could remain on LTD
until the year 2007.
Mr. Stewart indicated the defendant has the right to
have claimant come in for an examination if there is a
question as to claimant's disability entitlement. He said
the company doctor will contact the outside doctor who had
determined claimant's disability. If both doctors agree
that claimant can't do any work, the employee can be put on
a total and permanent disability pension. If there is a
disagreement as to claimant's disability, there are
provisions for a third party doctor to make a final binding
determination.
Mr. Stewart said it is more beneficial to be on LTD
than on disability pension ($684 per month versus $600 per
month). Mr. Stewart related that if claimant was laid off,
he would have 17 years recall right; in other words, to the
year 2007. But, unlike when claimant is on LTD, claimant
would not be adding any seniority rights.
Claimant now has 20 years seniority because he has
accumulated three years while on LTD. Claimant would not
have accumulated these added three years if he were on a
total permanent disability pension, retired or on layoff.
Mr. Stewart emphasized the total permanent disability
pension is a retirement mode as to benefits effect. Once
claimant retires, he loses his seniority for recall
purposes.
Page 4
Mr. Stewart emphasized that the determination of
disability is based on medical evidence. It is obvious the
whims of the defendant are not controlling in this area.
The claimant seems to infer that when Dr. Buck allegedly
made a statement that he has a say as to disability, it
would indicate the company is intentionally trying to keep
claimant on LTD rather than allowing a layoff. As we will
see later, claimant is taking the position in this case that
he was, in fact, laid off so he could come under the
provisions of 85B.8.
Mr. Stewart said LTD contemplates a possibility of
return to work which would be mandated if claimant's medical
condition warranted it. He emphasized a layoff is not the
same as retirement, and LTD and a layoff are in two
different sections of the agreement. Only as to keeping or
maintaining seniority (not accumulating) are they identical.
Mr. Stewart was asked whether any job would be
available to the claimant considering claimant's restriction
and being off work for three years. He said no as defendant
no longer has available clerk or sit down jobs or light
duty. He also emphasized one now needs seventeen years of
John Deere seniority for a chance to be recalled and even
with claimant's three year cushion (20 years minus 17),
claimant's chances are slim to none. He did indicate again
claimant is not in a layoff but in a disability program and
could be eligible to come back to work and his seniority
continues to accumulate while on LTD but not under a layoff.
In both instances, claimant maintains his seniority of 17
years as of 1989.
Mr. Stewart did not believe claimant would be called
back to work in his present condition.
The undersigned is not going to set out, review or make
a finding as to claimant's medical evidence or whether
claimant, in fact, has a hearing loss or whether there is a
causal connection because there is a question as to whether
an injury arose out of and in the course of claimant's
employment and connected with this issue, whether an
occurrence under 85B.8 has taken place.
Iowa Code section 85B.8 sets out the requirements
necessary to determine the date of an occupational hearing
loss injury which is determined upon determining the
occurrence of one of three events. Claimant does not
contend that he was transferred from an excessive noise
level by the employer. If that were the condition, there
would appear to be a possible statute of limitation problem.
The evidence is clear there was not a termination of the
employer-employee relationship. The evidence is clear
claimant did not retire even though claimant contends he
just found out at the date of hearing or possibly the day
before that he could apply for benefits other than what he
actually applied for. Claimant seems to indicate he was
told by the company only about applying for LTD. The
undersigned doesn't believe the company has the obligation
to hold the hand of this employee and read the contract
Page 5
section by section to him. Claimant could have asked the
president of the union, who he had as a witness, as to his
understanding of the contract if he had a question and as to
his options, if applicable. Whether claimant likes
receiving $684 per month versus $600, if he retired, plus
being able to accumulate seniority years by staying on LTD
was not elaborated on by the claimant, but the undersigned
finds his "excuse" to be not credible. There was
considerable discussion and argument, most off the record,
as to whether this action was brought too early, etc., and
this may have generated claimant's current posturing.
Claimant has April 8, 1989, as the injury date and on
the prehearing report claimant tried to insert additionally
the date of October 8, 1989. This was obviously done to
help in the posturing of claimant's attempt to possibly fit
the statute. Claimant contends he comes under the
provisions of 85B.8 which provides that the date of injury
for a layoff that continues for a period longer than one
year shall be six months after the layoff. Assuming for
argument purposes that there was a layoff (claimant's last
day of work was April 7, 1989) claimant no longer worked
beginning April 8, 1990. Therefore, six months is October
8, 1989. Defendant vigorously resisted this new date of
October 8, 1989 being put in the prehearing report
contending it is an amendment and prejudicial at this late
date. The undersigned agreed with defendant and the
undersigned believes it would be highly prejudicial since
this is obviously the only way claimant could possibly save
(assuming there is a layoff) his current cause of action.
The undersigned proceeded on an April 8, 1989 injury date.
As to whether there was a layoff, the undersigned
believes if there was any doubt, which from the evidence the
undersigned had no doubt, the union president laid that
question to rest. The undersigned finds that claimant was
not laid off and had been participating in the benefits of
LTD which gave claimant $684 per month and the right to
accumulate additional seniority years and recall rights to
the year 2007. It is immaterial whether claimant knew what
his contract provided or whether he read the contract.
Claimant's attorney contends that if there is not a layoff,
then the employer can keep claimant on LTD until the year
2007 and never be laid off or called back or get pension
benefits. This is an unacceptable argument. There is
nothing preventing claimant from reading the contract and
exercising his rights if he thinks he can get a better deal,
one of which is taking $600 per month in lieu of $684 if he
would be considered as a total disability pensioner. The
undersigned finds claimant was not laid off. The
undersigned finds that claimant has not shown that he
incurred a hearing loss that arose out of and in the course
of his employment on April 8, 1989. The undersigned further
finds that claimant's petition was brought too early and
that the provisions of 85B.8, date of occurrence, were not
complied with and, in fact, there has not been an injury or
hearing loss injury that occurred on April 8, 1989 or
October 8, 1989.
The undersigned finds that there is no need to discuss
Page 6
the other issues as they are moot in light of this decision.
analysis and conclusions of law
Claimant has the burden of proving by a preponderance
of the evidence that he received a hearing loss on April 8,
1989, which arose out of and in the course of his
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904
(Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa
352, 154 N.W.2d 128 (1967).
Iowa Code section 85B.8 provides:
A claim for occupational hearing loss due to
excessive noise levels may be filed six months
after separation from the employment in which the
employee was exposed to excessive noise levels.
The date of the injury shall be the date of
occurrence of any one of the following events:
1. Transfer from excessive noise level
employment by an employer.
2. Retirement.
3. Termination of the employer-employee
relationship.
The date of injury for a layoff which continues
for a period longer than one year shall be six
months after the date of the layoff. However, the
date of the injury for any loss of hearing
incurred prior to January 1, 1981 shall not be
earlier than the occurrence of any one of the
above events.
Page 7
It is further concluded that:
Claimant did not incur an occupational hearing loss
injury that arose out of and in the course of his employment
on April 8, 1989.
Claimant was not laid off from his employment on April
8, 1989, nor was claimant on a layoff which continued for a
period longer than one year.
Claimant was not transferred from an excessive noise
level employment by the employer, nor was claimant retired,
nor was claimant terminated by the employer, thereby
terminating the employer-employee relationship.
order
THEREFORE, it is ordered:
That claimant takes nothing from these proceedings.
That claimant shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
Signed and filed this ____ day of April, 1992.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Robert D Fulton
Attorney at Law
6th Flr 1st Natl Bldg
P O Box 2634
Waterloo IA 50704
Mr John W Rathert
Attorney at Law
620 Lafayette St
P O Box 178
Waterloo IA 50704
1100; 2208; 2200
Filed April 20, 1992
Bernard J. O'Malley
before the iowa industrial commissioner
____________________________________________________________
:
ARTHUR OWEN, :
:
Claimant, : File No. 966529
:
vs. :
: A R B I T R A T I O N
DEERE AND COMPANY, :
: D E C I S I O N
Employer, :
Self-Insured, :
Defendant. :
:
___________________________________________________________
1100
Found claimant did not incur an occupational hearing loss
that arose out of and in the course of his employment on
April 8, 1989.
2208
Found claimant was not laid off from his employment on April
8, 1989, nor was claimant on a layoff which continued for a
period longer than one year, nor was claimant retired, nor
transferred from an excessive noise level.
2208
Since claimant's filing did not come within 85B.8, date of
occurrence, claimant took nothing and other issues were
considered moot.
2200
Did not allow claimant's attorney to insert in prehearing
report an additional injury of October 8, 1989, in order to
posture his case for hopeful recovery based on "layoff"
under 85B.8. Deputy found claimant was not on a layoff
anyway but was on long-term disability receiving $684 per
month and accumulating seniority versus $600 per month and
accumulating no seniority.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
MARK A. WOODMAN, :
:
Claimant, : File No. 966531
:
vs. : A R B I T R A T I O N
:
A-OK YELLOW CAB CO., INC., : D E C I S I O N
:
Employer, :
Uninsured, :
Defendant. :
____________________________________________________________
statement of the case
This is a proceeding in arbitration brought by Mark A.
Woodman against his former employer, A-OK Yellow Cab
Company, Inc., based upon an alleged injury of December 21,
1988. The primary issue to be determined is whether the
claimant sustained an injury which arose out of and in the
course of employment. Claimant seeks weekly compensation
for the period commencing December 21, 1988, and running
through January 16, 1989. Claimant also seeks payment of
medical expenses totalling $1,532.70.
The case was heard at Dubuque, Iowa, on November 19,
1991. The record consists of testimony from Mark A.
Woodman, Debra Woodman, Ron Conrad, Olga Oltmanns and Merlin
Morett. The record also contains exhibits 1 through 7.
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.
Mark A. Woodman is a 40-year-old married man who lives
at Dubuque, Iowa. On December 21, 1988, he was employed as
a cab driver for A-OK Yellow Cab Company, Inc., a business
owned by Ron Conrad and Conrad's wife.
According to Woodman, he felt pain in his back at
approximately 9:00 p.m. when he picked up a passenger by the
name of Jason in the 3000 block of Pennsylvania Avenue. He
then dropped the passenger off at a location referred to as
Gomer's Tap. The passenger was an overweight young man who
is disabled by cerebral palsy and is restricted to a
wheelchair. According to Woodman, he felt pain in his back
while transferring the passenger from the wheelchair into
the cab, again while putting the wheelchair in the back of
the cab in preparation to transport the passenger to Gomer's
Tap and then continued to experience pain throughout the
Page 2
rest of his work shift. According to Woodman, he reported
his pain to the dispatcher but was asked to continue his
shift long enough to transport patrons home from the local
taverns when they closed. Woodman did so. Upon completing
his work, he reported to the Finley Hospital emergency room
(exhibit 1). The emergency services record indicates that
he had marked straightening of the lumbar lordotic curve but
full flexion, extension and rotation of the lumbar spine,
normal reflexes and a normal straight leg raising test
(exhibit 1, page 2). X-rays were interpreted as being
suggestive of possible muscle spasm (exhibit 1, page 3).
Woodman sought treatment from orthopaedic surgeon R.
Scott Cairns, M.D. At the initial examination, Dr. Cairns
noted claimant as having moderate paraspinal tightness and
slightly diminished sensation in the left leg. The straight
leg raising test was again normal (exhibit 3, page 1). A
multitude of diagnostic tests were conducted but did not
show any notable abnormality. Woodman was placed in
physical therapy. At the initial evaluation, the physical
therapist noted that Woodman's range of motion of his back
was limited in all directions and straight leg raising tests
were shown as abnormal bilaterally (exhibit 4, page 2).
After completing physical therapy, Woodman was released by
Dr. Cairns to resume work effective January 19, 1989, with a
restriction against lifting more than 30 pounds. At the
time of a follow-up visit on January 30, Woodman appeared
markedly improved. Woodman has not received any further
treatment for his back since January 30, 1989 (exhibit 3,
page 1).
Woodman's testimony at hearing was also to the effect
that he had never had any prior problem with his low back.
He stated that, while he was off work, he was unable to
engage in any type of strenuous activity and specifically
did not engage in shoveling snow.
According to Olga Oltmanns, a dispatcher and 18-year
employee of this employer, Woodman reported early for work
on December 21, 1988, and made a statement which indicated
that he had a backache. According to Oltmanns, Woodman did
not tell her what had caused the backache. She did not
notice anything unusual about his appearance or activities.
Oltmanns also related that, on a prior occasion, Woodman had
requested being allowed to take off work during the
Christmas holiday season. Oltmanns testified that she
referred him on to the business owner, Ron Conrad.
Ron Conrad, co-owner of A-OK Yellow Cab Company, Inc.,
testified that approximately two days prior to December 21,
1988, Woodman had asked to get off work over the holidays
but that the request was denied. According to business
records for December 21, 1988, Conrad stated that Woodman
had checked in for work at 3:02 p.m. and checked out at 2:35
Page 3
a.m. Conrad also related that Woodman had not picked up any
passenger on Pennsylvania Avenue on December 21. He
acknowledged that on that date, Woodman had picked up a
passenger at 2138 Central and transported that passenger to
Gomer's Tap and then later picked up a passenger at Gomer's
Tap and returned the passenger to 3276 Pennsylvania. That
trip was the last one Woodman made during that work shift.
Rebuttal witness Merlin Morett testified that on
approximately January 2 or 3, 1989, he observed Woodman
shoveling snow at Woodman's home. Morett stated that
Woodman had a shovel and that no one else was present.
Woodman specifically denied performing any shoveling but
stated that he did supervise shoveling when the teenaged
children in his home performed it. According to Woodman and
his wife, Debra, the teenaged children were responsible for
all snow shoveling without regard to any injury.
Debra Woodman testified that Mark had not had any lower
back problems prior to December 21, 1988, when he phoned
her, reported that he had been injured and stated he was
seeking medical treatment. According to Debra, his voice
sounded as if he were in pain. She also related that, when
he returned from seeking treatment, he was unable to sleep.
According to Debra, he got no relief from his pain until he
entered the physical therapy program.
This case presents conflicting and controverted
evidence. Page 3 of joint exhibit 1 indicates that on
December 31, 1988, the employer had notified Dr. Cairns that
claimant had previously complained of back problems and was
simply seeking additional time off work. The only evidence
in the case of any previous low back problems comes from
Oltmanns. There is no corroboration in this record for her
statement that Woodman reported having a backache on
December 21, 1988, at the time when he reported for work.
The evidence in the record shows no indication of any prior
low back problems. There is no corroboration for Morett's
testimony that claimant was shoveling snow in early January.
The employer's evidence that Woodman had sought time off
work is provided by both Conrad and Oltmanns, while Woodman
stated that he did not seek time off work and had no reason
to seek time off work over the holidays since he was not
scheduled to work on the holidays. Woodman's testimony that
he picked up the disabled passenger and delivered that
passenger to Gomer's Tap and then returned the passenger to
an address on Pennsylvania is corroborated by the employer's
records. While there is a discrepancy regarding where the
pick up originally was made, it appears highly probable that
Woodman did in fact pick up such a passenger as he related
at hearing. The testimony of his back pain is corroborated
by the examinations performed at the emergency room, by Dr.
Cairns and by the x-ray report which showed straightening of
Page 4
the lordotic curve suggestive of muscle spasm.
Any claimant would be expected to know the place and
circumstances of his injury. It would also be expected,
however, that if he were fabricating, he would have known
that the employer had a record of his trips and would have
designed a scenario which was consistent with the employer's
records.
It is noted throughout the medical records that the
history of injury given is consistent. The only known
inaccuracy is the reference to the patient being elderly
which appears only in the emergency room records. The
greater weight of the evidence supports the claimant's
claim. It is found that he did injure his back on December
21, 1988, while transferring the disabled patient from the
wheelchair into the cab in the manner which he described at
hearing. It is a quite plausible scenario for producing an
injury of the type which is claimed in this case, namely a
temporary back strain or sprain. The findings in the
medical reports are consistent with that type of injury.
The course of treatment and recovery is likewise consistent
with such an injury. There is no evidence in the record to
support the employer's position of a preexisting condition
beyond the testimony from Oltmanns. The only dispute
regarding the medical expenses the claimant seeks to recover
is the underlying issue of the employer's liability for the
alleged work injury.
conclusions of law
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on December 21,
1988, 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).
The injury must both arise out of and be in the course
of the employment. Crowe v. DeSoto Consol. School Dist.,
246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp.
405-406 of the Iowa Report. See also Sister Mary Benedict
v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and
Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555
(1958).
The words "out of" refer to the cause or source of the
injury. Crowe v. DeSoto Consol. School Dist., 246 Iowa 402,
68 N.W.2d 63 (1955).
"An injury occurs in the course of the employment when
it is within the period of employment at a place the
employee may reasonably be, and while he is doing his work
or something incidental to it." Cedar Rapids Community
School Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v.
Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971);
Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128
Page 5
(1967).
In this case, though there is conflicting evidence, the
record clearly documents that the claimant was diagnosed as
suffering from a back problem when he sought medical
treatment shortly after leaving his work shift. The history
given, the nature of the injury and course of recovery are
all consistent with the scenario of injury which the
claimant described. It is therefore determined that Mark A.
Woodman has proven, by a preponderance of the evidence, that
he injured his low back in an incident which arose out of
and in the course of his employment on December 21, 1988.
The injury was not claimed to have produced any
permanent disability and none appears apparent from the
record. The claimant's entitlement to weekly compensation
is therefore limited to temporary total disability under
Code section 85.33. Since he completed his work shift on
December 21, 1988, the first day of disability is December
22, 1988. The disability was terminated by his return to
work on January 17, 1989. The duration of the period of
disability is therefore 3 5/7 weeks. Woodman is therefore
entitled to recover weekly compensation from the employer in
the stipulated amount of $103.18 payable commencing December
22, 1988. Where the disability does not commence on the
date that the injury occurred, it is not proper to pay
temporary total disability compensation for the date when
full wages were paid.
The only dispute surrounding the medical expenses is
the dispute regarding liability. All the expenses claimed
are supported by documents in the record. It is therefore
concluded that Woodman is entitled to recover the expenses
of treatment and mileage as itemized in exhibit 5 in the
total amount of $1,532.70.
order
IT IS THEREFORE ORDERED that A-OK Yellow Cab Company,
Inc., pay Mark A. Woodman three and five-sevenths (3 5/7)
weeks of compensation for temporary total disability at the
stipulated rate of one hundred three and 18/100 dollars
($103.18) per week payable commencing December 22, 1988.
The entire amount thereof is past due and shall be paid to
claimant in a lump sum together with interest computed from
the date each weekly payment came due until the date of
actual payment at the rate of ten percent (10%) per annum
pursuant to Code section 85.30.
IT IS FURTHER ORDERED that A-OK Yellow Cab Company,
Inc., pay Mark A. Woodman the sum of one thousand five
hundred thirty-two and 70/100 dollars ($1,532.70) as
reimbursement for his medical expenses with Finley Hospital,
R. Scott Cairns, M.D., Dubuque Radiological Associates,
Cathedral Square Physical Therapy and mileage, all pursuant
to Code section 85.27.
Page 6
IT IS FURTHER ORDERED that A-OK Yellow Cab Company,
Inc., pay the costs of this proceeding pursuant to rule 343
IAC 4.33.
IT IS FURTHER ORDERED that A-OK Yellow Cab Company,
Inc., file a first report of injury within ten (10) days
from the date of this decision in accordance with Iowa Code
sections 86.11 and 86.12.
IT IS FURTHER ORDERED that A-OK Yellow Cab Company,
Inc., file claim activity reports as requested by this
agency pursuant to rule 343 IAC 3.1.
Signed and filed this ______ day of ____________, 1991.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Page 7
Copies To:
Mr. Francis J. Lange
Attorney at Law
1114 Main Street
P.O. Box 1811
Dubuque, Iowa 52004-1811
Mr. James H. Reynolds
Attorney at Law
1045 Main Street
Dubuque, Iowa 52001
5-1402.30; 5-1402.40
Filed November 27, 1991
MICHAEL G. TRIER
before the iowa industrial commissioner
____________________________________________________________
:
MARK A. WOODMAN, :
:
Claimant, : File No. 966531
:
vs. : A R B I T R A T I O N
:
A-OK YELLOW CAB CO., INC.,: D E C I S I O N
:
Employer, :
Uninsured, :
Defendant. :
____________________________________________________________
5-1402.30; 5-1402.40
Claimant prevailed over conflicting evidence regarding
whether he sustained injury arising out of and in the course
of employment.
Employer ordered to file first report of injury.
5-1803; 5-1100; 5-1108
Filed December 6, 1991
Bernard J. O'Malley
before the iowa industrial commissioner
____________________________________________________________
:
DENNIS R. WITTE, :
:
Claimant, : File Nos. 966533
: 966534
vs. : 952950
:
LENNOX INDUSTRIES, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
Claimant recovered nothing further on his September 17, 1989
work injury (no permanency found).
5-1803
Claimant recovered nothing further on his July 27, 1989 work
injury (no permanency found).
5-1100; 5-1108
Claimant's April 9, 1990 alleged injury did not arise out of
and in the course of his employment and no causal connection
found.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
GLENDA MAGREEVY, :
:
Claimant, :
:
vs. :
: File No. 966538
SERVICEMASTER OF LEE COUNTY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
MILWAUKEE INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
Claimant, Glenda Magreevy, seeks benefits under the
Iowa Workers' Compensation Act upon her petition in
arbitration against defendant employer, Servicemaster of Lee
County, and its insurance carrier, Milwaukee Insurance
Company.
This cause was scheduled for hearing in Burlington,
Iowa on September 30, 1992. At 3:03 p.m., on September 29,
the undersigned received a dismissal by facsimile
transmission at his motel in Burlington. Thereafter, the
undersigned engaged in two telephone conversations with
claimant's attorney, Michael J. McCarthy. Under Iowa Rule
of Civil Procedure 215, any voluntary dismissal within ten
days of the date of trial requires consent of the agency.
Mr. McCarthy was advised that such consent would not be
granted ex parte. Mr. McCarthy thereupon advised that
claimant did not intend to appear at the scheduled hearing,
intended to present no evidence whatsoever, and would accept
an adjudication on the merits. Accordingly, no hearing was
actually held. This decision is based upon the pleadings,
motions and intermediate rulings contained in the file under
Iowa Code section 17A.12(6).
ISSUES
Issues presented for resolution include:
1. Whether claimant sustained an injury arising out of
and in the course of employment on September 22, 1989;
2. Whether the injury caused temporary or permanent
disability;
3. The extent of each, if any;
4. Whether defendants are entitled to credit under
Page 2
Iowa Code section 85.38(2);
5. Whether the claim is barred by failure to give
notice under Iowa Code section 85.23.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
Claimant's petition asserts that she sustained an
injury to the right ear causing tinnitus by reason of a
"blast of hot air" from a fork truck exhaust. Defendants
deny that claimant sustained an injury arising out of and in
the course of employment. As previously indicated, no
evidence in this record supports the claim.
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).
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).
No evidence exists in this record supporting claimant's
burden of proof. Accordingly, she has failed to prove an
injury arising out of and in the course of employment.
Other issues are thereby rendered moot.
ORDER
THEREFORE, IT IS ORDERED:
Claimant shall take nothing.
Costs are assessed to claimant pursuant to rule 343 IAC
4.33.
Signed and filed this ____ day of October, 1992.
Page 3
________________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Michael J McCarthy
Attorney at Law
701 Kahl Building
Davenport Iowa 52801
Mr William J Cahill
Attorney at Law
200 Jefferson Street
PO Box 1105
Burlington Iowa 52601
1402.30; 2901
Filed October 2, 1992
DAVID R. RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
GLENDA MAGREEVY,
Claimant,
vs.
File No. 966538
SERVICEMASTER OF LEE COUNTY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
MILWAUKEE INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
1402.30; 2901
Claimant attempted to dismiss her action the day before
hearing. The hearing deputy advised her attorney that the
dismissal would not be approved ex parte. Claimant's
attorney advised that claimant would not appear for hearing,
would present no evidence, and would accept an adjudication
on the merits.
As claimant failed to meet her burden of proof on the record
made (all pleadings, motions and intermediate rulings under
Iowa Code section 17A.12(6)) defendants prevailed.
1801
Filed April 13, 1992
Patricia J. Lantz
before the iowa industrial commissioner
____________________________________________________________
:
CHARLES R. MEEKS, :
:
Claimant, : File Nos. 876894, 944018
: 930535, 966544
vs. : 966545, 966546
: 966547
FIRESTONE TIRE & RUBBER CO., :
:
Employer, : A R B I T R A T I O N
:
and : D E C I S I O N
:
CIGNA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1801
Claimant filed seven petitions alleging repeated injuries to
his right shoulder and left hip resulting from heavy labor
as a tire builder at Firestone.
He was 58 years old at the time of the hearing, and although
he suffered from arthritis, he had not sought treatment for
the same, and his condition had never interfered with his
work activities.
Claimant awarded a total of 68% industrial disability based
on loss of earning capacity and all other factors.
1801
Filed April 13, 1992
Patricia J. Lantz
before the iowa industrial commissioner
____________________________________________________________
:
CHARLES R. MEEKS, :
:
Claimant, : File Nos. 876894, 944018
: 930535, 966544
vs. : 966545, 966546
: 966547
FIRESTONE TIRE & RUBBER CO., :
:
Employer, : A R B I T R A T I O N
:
and : D E C I S I O N
:
CIGNA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1801
Claimant filed seven petitions alleging repeated injuries to
his right shoulder and left hip resulting from heavy labor
as a tire builder at Firestone.
He was 58 years old at the time of the hearing, and although
he suffered from arthritis, he had not sought treatment for
the same, and his condition had never interfered with his
work activities.
Claimant awarded a total of 68% industrial disability based
on loss of earning capacity and all other factors.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JOYCE HEISER, :
:
Claimant, :
:
vs. :
: File No. 966572
HON INDUSTRIES, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
THE TRAVELERS INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Joyce
Heiser against her employer, Hon Industries, and The
Travelers Insurance Company, based upon an injury that
occurred on August 11, 1987. Claimant seeks additional
compensation for permanent partial disability. Both parties
seek to recover costs. The primary issue to be determined
is the extent of permanent partial disability which was
proximately caused by the August 11, 1987 injury.
The case was heard at Davenport, Iowa, on March 23,
1992. The evidence consists of testimony from Joyce Heiser,
Dorsey Lane and Amy Newbanks Fuller. The record also
contains joint exhibits 1 through 14. It was noted at
hearing that the correct rate of compensation is $247.40 but
that benefits had been paid at the rate $238.62 and
defendants agreed to immediately pay the difference without
further order. Defendants had paid 35 weeks of compensation
for permanent partial disability prior to hearing.
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.
Joyce Heiser is a 48-year-old woman who dropped out of
high school but subsequently obtained a GED. Prior to
commencing her current employment, she worked in the office
of a grain elevator which was managed by her husband. She
weighed and tested grain. She issued checks in payment for
grain which was delivered to the elevator. She worked as a
supervisor at a Hardee's restaurant for approximately nine
months.
Joyce commenced her employment with Hon Industries in
Page 2
1981. Most of the time she has worked assembling and
packing drawers. The most weight she would typically handle
would be approximately 20 pounds. The weight she most
frequently handled was approximately five pounds. Her work
is performed standing and permits her to move about somewhat
(Jt. Ex. 14A-E). Joyce earned approximately $6 per hour
when she started, approximately $9 per hour when she was
injured and at time of hearing was earning slightly over $12
per hour. Pay increases were normal plant increases and
were not attributable to any promotion or change in job
duties.
Joyce injured her back on August 11, 1987, when she
tried to pull a pallet which was on the floor but it stuck.
She underwent an extended period of conservative treatment
which included steroid injections, prescription medications
and physical therapy. She eventually entered into and
successfully completed a low back pain rehabilitation
program through the University of Iowa Hospitals and Clinics
(Jt. Ex. 8). She resumed full-time work. Her only work
restriction is that she avoid heavy lifting. Her current
job does not involve heavy lifting. She has one of the
lighter jobs in the plant. It would be difficult for her to
transfer to some other job which would not be heavier than
her current job.
Joyce has essentially constant pain regardless of
whether she works or does not work. It worsens at times,
sometimes without any identifiable cause. She takes aspirin
for pain but avoids prescription medications. She has been
able to perform her job despite her pain. She works
overtime on occasion. She normally exceeds the established
rate for her job and receives incentive pay. Her
performance evaluations have been favorable. Occasionally,
Joyce will miss a few days of work when her pain is most
severe. She has changed her off-work activities due to her
symptoms.
Claimant was rated as having a 7 percent permanent
impairment of the whole body by her orthopedic surgeon. Her
pain rehabilitation program at the University of Iowa was
considered successful (Jt. Ex. G-S). She has been evaluated
by Neurosurgeon Robert W. Milas, M.D., who diagnosed her as
having degenerative disc disease at the L4-S1 levels of her
spine. He rated her as having a 19 percent permanent
impairment.
Hon Industries is a nonunion employer. Claimant has no
guarantee of continued employment. According to Amy
Newbanks Fuller, of the personnel department, there are no
plans to change the current status regarding the company's
continued operation and claimant's continued employment.
Hon Industries is generally regarded as a successful Iowa
business. There is no known basis for expecting that
claimant will not have continued employment with Hon
Industries. On the other hand, the only thing that is
certain about employers and businesses is that the future is
uncertain. Most individuals change employers during their
Page 3
employment life. Corporations are taken over and their
assets sold piecemeal. Plants relocate to areas which offer
freedom from work place safety restrictions, freedom from
pollution controls, lower hourly labor costs and lower
taxes. Hon Industries is well regarded as a responsible
corporate citizen and it is unlikely that it will close its
plants or otherwise take action to force Joyce Heiser back
into the competitive labor market where her physical
limitations and activities would limit her access to jobs
and have an actual adverse impact upon her level of
earnings.
CONCLUSIONS OF LAW
The primary issue in this case is the extent of
permanent partial disability.
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman v. Central Telephone
Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
Industrial disability or loss of earning capacity is a
concept that is quite similar to impairment of earning
capacity, an element of damage in a tort case. Impairment
of physical capacity creates an inference of lessened
earning capacity. The basic element to be determined,
however, is the reduction in value of the general earning
capacity of the person, rather than the loss of wages or
earnings in a specific occupation. Post-injury earnings
create a presumption of earning capacity. The earnings are
not synonymous with earning capacity and the presumption may
be rebutted by evidence showing the earnings to be an
unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531
(Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa
1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973);
Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516
(Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County,
Thirty-fourth Biennial Report of the Industrial Commissioner
218 (1979); 2 Larson Workmen's Compensation Law, sections
57.21 and 57.31.
This is a case in which the claimant has sustained a
significant injury which has resulted in permanent
impairment and a reduction in her physical capabilities.
Normally, those factors indicate a reduction in earning
capacity. On the other hand, she has experienced no
reduction of actual earnings and this normally would
strongly indicate that there has been no reduction of
earning capacity. In this case, the claimant's age, formal
Page 4
education and work experiences are such that if she were
forced to find other employment it would be expected that
she would experience a marked reduction in her actual
earnings. Hon Industries has insulated her from that harsh
reality. While she may no longer be capable of performing
as many different jobs with Hon Industries as she was
capable of performing prior to her injury, the record also
reflects that she had not attempted to enter into those
other jobs prior to her injury. Industrial disability
cannot be precisely measured in the manner that impairment
ratings are measured. Despite the precise methodology that
is used in determining impairment ratings, there is often a
wide yet reasonable disparity between ratings from different
physicians, as exists in this case. Nevertheless, an
assessment of industrial disability must be made. When all
material factors of industrial disability are considered, it
is determined that Joyce Heiser experienced a 10 percent
permanent partial disability as a result of the August 11,
1987 injury. Under the provisions of Iowa Code section
85.34(2)(u), she is entitled to recover 50 weeks of
benefits. Since the employer has previously paid 35 weeks
based upon a 7 percent impairment rating, an amount which in
this case provides a close approximation, there are 15 weeks
which remain unpaid.
Since claimant has prevailed in this claim, she is
entitled to recover costs. The costs which she seeks are
not well described other than for the filing fee charged by
this agency in the amount of $65 and the report and
evaluation from Dr. Milas in the amount of $150. The four
other charges which total $60.80 are deemed by the
undersigned to be copy fees, an item which is not
recoverable as a cost. It is therefore concluded that
pursuant to rule 343 IAC 4.33 and Iowa Code section 622.72,
the total amount of costs assessed against the employer to
be paid to claimant is $215.
ORDER
IT IS THEREFORE ORDERED that defendants pay Joyce
Heiser fifty (50) weeks of compensation for permanent
partial disability at the stipulated rate of $247.40 per
week payable commencing on the stipulated date of October 4,
1988. Defendants are entitled to credit for the thirty-five
(35) weeks of permanent partial disability compensation
benefits previously paid and shall pay the remaining fifteen
(15) weeks in a lump sum together with interest, pursuant to
Iowa Code section 85.30, computed from the date each weekly
payment became due until the date of actual payment.
IT IS FURTHER ORDERED that defendants pay the costs of
this action, including reimbursement to claimant in the
amount of two hundred fifteen dollars ($215.00).
IT IS FURTHER ORDERED that defendants file a claim
activity reports as requested by this agency pursuant to
rule 343 IAC 3.1.
Signed and filed this ______ day of August, 1992.
Page 5
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr John H Westensee
Attorney at Law
1705 2nd Ave
Rock Island IL 61201
Ms Vicki L Seeck
Attorney at Law
600 Union Arcade Bldg
Davenport IA 52801
5-1803
Filed August 7, 1992
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JOYCE HEISER, :
:
Claimant, :
:
vs. :
: File No. 966572
HON INDUSTRIES, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
THE TRAVELERS INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
Forty-eight-year-old employee with degenerative disc disease
who had been able to return to same job and work to the
employer's satisfaction awarded 10% permanent partial
disability.