BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JOHN PRESSON, :
:
Claimant, :
:
vs. :
: File No. 966955
ENNIS BUSINESS FORMS, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by John
Presson against his employer, Ennis Business Forms, and its
insurance carrier, CNA Insurance Companies, as defendants.
The record in this case consists of testimony from the
claimant, Ernest Hilbert (maintenance foreman for defendant
Ennis), and Fred Halsey (tag and label plant manager for the
defendant Ennis); plaintiff's exhibits 1-7; and, defendants'
exhibits A-G. The matter came on for hearing before the
undersigned deputy industrial commissioner on November 30,
1993 at Davenport, Iowa.
It should be noted that claimant was hearing impaired,
and testified via Sharon Winfield, an interpreter from Deaf
Services Commission of Iowa.
ISSUES
The parties submitted the following issues for
resolution:
1. Whether claimant's work injury of November 2, 1990
caused a permanent disability;
2. Whether claimant is entitled to permanent partial
disability benefits; and,
3. Whether claimant is entitled to payment of certain
medical expenses.
The parties were able to agree that claimant sustained
an injury on November 2, 1990, and that in the event of an
award of permanent partial disability benefits, payments
should commence February 22, 1991. Additionally, the
parties stipulated that at the time of the injury,
claimant's gross weekly earning totalled $483.00, he was
Page 2
married and entitled to five exemptions, and his workers'
compensation rate was $313.39 per week.
FINDINGS OF FACT
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
Claimant, John Presson, was born on November 26, 1954
and was 39 years of age at the time of the hearing. He
lives in Clinton, Iowa. After graduating from high school,
he received two and one-half years of training in the
printing business at Iowa Western Community College in
Council Bluffs, Iowa. Claimant has been hearing impaired
since birth, and he is unable to read lips.
Since 1977, claimant has been employed as a pressman
with defendant Ennis Business Forms. His job duties at the
time of the injury and currently, include filling various
printing machines with ink, placing stock or paper into the
machine, adjusting the machines and setting up the machines
to accomplish various printing jobs. Once the machine is
running properly, claimant sits and puts tags into boxes and
places the boxes on racks. Claimant's job also involves
working with heavy rollers which weigh between 200 and 300
pounds that he must lift and adjust.
On November 2, 1990, claimant was working with the
heavy rollers and felt pain in his low back. He reported
his condition to the manager and visited X.R. Colah, M.D.,
on November 5, 1990. The history suggests claimant had back
problems "off and on since 1978" but his symptoms had been
worse since November 2, 1990. An examination revealed
restriction of low back movements, but straight leg raising
tests were within normal limits. Results of x-rays were
normal, and Dr. Colah recommended physical therapy sessions
consisting of heat, low back massage and ultrasound. Motrin
and other medications were prescribed. (Defendants' Exhibit
A). Notes from Clinton Physical Therapy Services, P.C., are
found in claimant's exhibit 1, and confirm that claimant
underwent treatments from November 5, 1990 through February
15, 1991 for a total of 33 treatments. While most of the
therapy notes are illegible, claimant was discharged from
physical therapy with improvements in range of motions tests
and decrease in pain in the lumbar spine. (Claimant's
exhibit 1)
Dr. Colah's follow-up treatment consisted of
prescriptions for pain medications and use of a TENS unit.
In November, claimant continued to complain of pain in his
left buttock which radiated down the back of his left thigh.
Dr. Colah declined nonsteroidal medications because claimant
had been "scheduled for hernia December 10." This is the
only reference to a hernia contained in Dr. Colah's records.
Claimant's condition improved in January of 1991, but he
reported that after sitting for long periods of time, his
left flank continued to hurt. Subsequent visits to Dr.
Colah found claimant's condition improving, and he was
released to return to work on February 22, 1991. Dr. Colah
assessed claimant to have sustained a five percent
Page 3
"disability" due to the condition of his low back. Claimant
continued to complain of a stiff back throughout 1991.
(Def. Ex. A)
As noted above, claimant underwent hernia repair
surgery in December of 1990. Initial treatment of the
hernia was on November 23, 1990, when claimant sought
treatment from M.A. Cooper, M.D. An examination revealed
that claimant complained of discomfort in the right groin
area, and presented with a small bulge in the internal ring.
Dr. Cooper performed the surgery. (Cl. Exs. 3 and 4)
Medical bills associated with the surgery, as well as
payments made by claimant's health insurance are found in
claimant's exhibits 5 and 6. Dr. Cooper submitted the
following information regarding the cause of the hernia on
July 21, 1991:
Mr Presson's history is complex in that his
initial complaint is back pain however the groin
discomfort began at the same time and he
identifies no previous symptoms referable to the
groin. One would therefore conclude that the
hernia occurred at the time of the work-related
lifting maneuver. However, another possibility
exists. The patient could well have had a small
asymptomatic hernia that was neither caused by or
related to his work-related lifting and his
symptom onset was secondary to the back problem.
In February of 1992 claimant underwent an independent
medical evaluation which was performed by W.J. Robb, M.D.
After performing an examination which elicited pain in the
left leg during straight leg raising tests, and a review of
recent (January, 1992) x-rays of the lumbar spine, as well
as MRI results of the lumbar spine, Dr. Robb determined that
claimant had sustained an annular bulge at the L5-S1 disc,
with secondary irritation of the first sacral root. He
recommended swimming and daily leg exercises, and assigned a
five percent permanent impairment of the body as a whole due
to the annular bulge and abnormality of the disc at the
L5-S1 level. He concurred that claimant should not lift
more than 10 pounds. His report does not refer to the
hernia. (Def. Ex. B)
Also included in the evidence is an undated letter from
the defendant employer to claimant regarding paperwork
claimant had submitted. In relevant part, the letter states
the following information:
I am returning the enclosed forms, because you
have written on the claim form (that this claim
was caused at work.)
If this is the case, then you will have to get
a written statement from your doctor, proving it
did happen at work. Ennis' workmen's [sic]
compensation will not pay unless this is done.
Then they will probably want to talk with you
beings [sic] there were two claims.
Page 4
Claimant's handwritten, signed response states, "I
thought my hernia was due to lifting but I was wrong & I
filled out paper wrong. It should have said no. It wasn't
work related." (Def. Ex. C) At the hearing, claimant
attempted to explain these statements and suggested that he
was confused by the paperwork and did not understand all of
the insurance information.
Currently, claimant is performing the same job that he
was performing at the time of the injury. The defendant
employer has provided a device claimant can use to help him
lift items weighing in excess of 10 pounds, or claimant can
call upon other co-employees to help him lift heavier items.
Claimant has received regular salary increases and cost of
living raises, and has reached the top rate of pay for any
pressman in the plant. The employer is completely satisfied
with his work, and anticipates continued employment, stating
that claimant was one of the best pressmen in the plant.
Since the injury and his subsequent return to work, claimant
has not missed any work due to his back problems. He boasts
regular attendance. (Def. Ex. F) Claimant is allowed to
sit or stand as necessary in performing his work.
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to address is whether claimant has
sustained a permanent disability due to the November 2, 1990
work injury.
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. App. P. 14(f).
Two physicians have opined that claimant sustained a
five percent impairment due to the back condition.
Currently, claimant works under lifting restrictions of no
lifting of greater than 10 pounds, restrictions he did not
have prior to the injury. Claimant's current complaints of
pain are consistent with the type of injury he sustained,
and there is no evidence in the record that he had back
problems which required medical attention prior to the
November 2, 1990 injury. As a result, it is found that he
has sustained a permanent disability, and he is entitled to
permanent partial disability benefits.
As claimant has sustained an injury to the body as a
whole, an analysis of his industrial disability is
warranted.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
Page 5
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
Claimant's only work history is with the defendant
employer. After the injury, he has been able to return to
his regular duties, earning the same or more in wages. The
employer has accommodated his lifting restrictions, and
posit that claimant is able to stand or sit as he chooses
throughout much of the work day. While some of claimant's
job duties involve lifting, his primary function is to
supervise various press machines and insure that they are
working properly.
Claimant sustained a bulging disc with associated nerve
irritation, for which he underwent conservative treatment
for approximately four and one-half months. No surgical
intervention was ever contemplated.
Claimant stated that he continues to feel pain in the
low back, left buttock and left leg area. Due to the nature
Page 6
of his injury, these symptoms will likely persist with
varying degrees of severity, and claimant has been assigned
a five percent impairment rating, presumably in response to
his current complaints and the objective findings documented
in the medical records.
Claimant's employment seems very secure. The employer
praised claimant's work both prior to and after the injury.
In response to claimant's dedicated work, he has climbed up
the ranks of the plant, and is at the top of his
classification with respect to wages and work assignments as
claimant has been assigned to one of the easier presses to
operate in the plant.
After considering all of the factors, it is determined
that claimant has sustained a five percent industrial
disability.
Finally, the last issue to address is whether claimant
is entitled to payment of medical benefits incurred due to
the surgery performed to repair his hernia.
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Iowa Code section 85.27.
Holbert v. Townsend Engineering Co., Thirty-second Biennial
Report of the Industrial Commissioner 78 (Review-reopen
1975).
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).
Claimant did not complain of pain in the groin area to
Dr. Colah (the authorized treating physician), nor to Dr.
Robb, who performed the independent medical evaluation. He
sought his own treatment from Dr. Cooper, whose opinion is
unclear, and does not establish that claimant's hernia arose
out of and in the course of his employment. In fact, Dr.
Cooper suggests that the hernia did not happen while
claimant was working. Likewise, claimant specifically
stated that his hernia did not occur while he was at work.
Even if this writer had been convinced by claimant's
testimony at the hearing that he was confused about the
insurance coverages, there is no evidence in the record
Page 7
which suggests that claimant felt pain in his groin when he
hurt his back. Claimant did not tell Dr. Colah of any groin
pain, and sought treatment from a different physician for
his hernia problems.
Because claimant failed to prove by a preponderance of
the evidence that the hernia is compensable, he is
responsible for payment of the medical bills incurred due to
surgery to repair the hernia.
ORDER
That defendants shall pay claimant permanent partial
disability benefits for twenty-five (25) weeks beginning
February 22, 1991 at the rate of three hundred thirteen and
39/100 dollars ($313.39) per week;
That defendants shall pay accrued weekly benefits in a
lump sum, and shall receive credit for benefits previously
paid;
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30;
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33;
That defendants shall file a claims activity report
upon payment of this award as required by this agency,
pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of December, 1993.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr John J Wolfe
Attorney at Law
402 6th Ave S
Clinton IA 52732
Mr Elliott McDonald Jr
Attorney at Law
P O Box 2746
Davenport IA 52809
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
DEAN STULL,
Claimant,
vs.
File Nos. 967045/1020423
MORTON BUILDING, INC.,
A P P E A L
Employer,
D E C I S I O N
and
INSURANCE COMPANY OF NORTH
AMERICA (INA),
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the deputy
and all exhibits admitted into the record, has been reviewed de novo on
appeal.
ISSUES
Defendants state the following issues on appeal:
I. The deputy erred in finding claimant's back condition was causally
connected to work performed for defendant Morton Buildings.
II. Even if claimant's back condition was causally connected to his
employment, there is insufficient evidence to support a 10% industrial
disability for the alleged back injury.
FINDINGS OF FACT
The findings of fact contained in the proposed agency decision filed
September 19, 1994 are adopted as set forth below. Segments designated
by asterisks (*****) indicate portions of the language from the
proposed agency decision that have been intentionally deleted and do
not form a part of this final agency decision.
Dean Stull began work for the employer, Morton Buildings, Inc., in
1976. Claimant has always worked for the company as a laborer with
respect to the construction of pole buildings. On November 12, 1990,
claimant sustained an injury to the peroneum when a board broke beneath
his feet allowing him to fall onto another supporting piece of wood.
Claimant suffered a urethral tear which was subsequently repaired by
surgery. Claimant was off work beginning November 16, 1990 through
November 26, 1990, as a result of the injury and surgery. Claimant
suffered from pain and discomfort for approximately six months after
that injury but eventually made a full recovery. No permanent partial
impairment was assessed by any of the examining physicians with respect
to the torn urethra.
The employer accepted compensability of this aspect of the claim and
paid temporary total disability benefits in the amount of $352.72, and
all related medical expenses.
Claimant was an hourly wage earner at the time of injury on November
12, 1990. The employer calculated the gross earnings based on a
straight hourly wage which amounted to $389.69 per week. Claimant was
also entitled to receive a bonus based upon the speed at which a job
was finished and the quality of workmanship. These bonuses were paid
on a regular basis and were made based upon a set formula. Bonuses
were paid each and every month should the individual be entitled. All
employees were treated equally when bonuses were granted. It is found
that the bonus was more in line with an incentive to produce a higher
quality work product and a faster turnaround time when erecting
buildings. The bonus must be distinguished from a Christmas bonus
which is given as a gift at the whim of the employer. In this
situation, claimant had control over the bonus he received by working
harder and performing better quality work. Therefore, it is found that
claimant's weekly rate should be calculated based on gross earnings of
$543.36 per week for the injury date of November 12, 1990.
With respect to the injury date of June 22, 1992, the employer contends
that the weekly rate should be calculated based upon gross earnings of
$396 per week, which is the straight hourly rate. Applying the same
analysis to the June 22, 1992 rate calculation, it is found that
claimant's weekly benefit amount should be based upon a gross weekly
earnings of $452.05, which includes the bonus paid for quality and
speedy workmanship.
Claimant went off work on June 22, 1992, due to significant pain in the
low back and spine. Claimant first sought treatment from a
chiropractor with little relief. Claimant later received acupuncture
treatments with little or no relief. The problem was eventually
diagnosed as an L5_S1 degenerative disc which probably preexisted both
the June 22, 1992 injury date and the November 12, 1990 injury date.
(Claimant's Exhibit 1) Claimant was off receiving treatment for the
low back condition beginning June 22, 1992 through September 20, 1992.
James W. Turner, M.D., released claimant to return to work effective
September 21, 1992. (Joint Exhibit 24) Therefore, temporary benefits
should end on September 20, 1992.
Claimant attributed his back problems for which he was under treatment
during this period in question to the November 12, 1990 straddle
injury. However, the medical records do not document a history of back
pain as a result of that November 1990 injury. To the contrary,
claimant repeatedly gave a medical history indicating that back pain
occurred approximately one year prior to June 22, 1992. Claimant
indicated to the medical professionals that the back pain was a
progressive problem which had escalated over the year prior.
Claimant's work for the employer was of a heavy manual labor type which
on a daily basis required much lifting and strenuous use of the back.
This type of work can cause aggravations of degenerative discs. (Cl Ex.
2) Therefore, the question becomes whether the claimant's back pain is
causally connected to either the November 1990 injury or the June 22,
1992 cumulative trauma injury, or neither.
*****
Under the cumulative trauma doctrine, the first date of disability is
used as the date of injury. In this situation, claimant went off work
on June 22, 1992 and chose that date as the date of injury. It is
found that the type of work claimant had performed for Morton
Buildings, Inc., is of the type that could aggravate a preexisting
degenerative disc. It is found that claimant's back problems for which
he sought treatment on June 22, 1992 are causally connected to the work
performed for this employer. Bradley Kristiansen, D.C., opined that
the pain started at the fall but was aggravated by other lifting,
bending and twisting at work. (Cl. Ex. 2) It is apparent that Dr.
Kristiansen was impressed by the type of work claimant was performing
which involves daily bending, twisting and lifting.
James W. Turner, M.D., a board certified orthopedic surgeon, was
somewhat unequivocal with respect to his opinions on causal connection.
***** Dr. Turner believed that he could not issue an opinion on
causal connection without having x_ray films or records from 1990.
***** However, Dr. Turner did state that if there were preexisting
degenerative changes, then there would be an aggravation from the work
history with Morton Buildings. (Jt. Ex. 8, p. 11)
Jerome G. Bashara, M.D., a board certified orthopedic surgeon, believed
that the L5_S1 degenerative disc was a preexisting condition that was
aggravated by the straddle injury and work with the employer.
Having considered all the evidence in the record, it is found that
claimant suffered an injury arising out of and in the course of
employment on June 22, 1992, best described as a cumulative trauma
injury which aggravated a preexisting degenerative disc at the L5_S1
level. This finding is based primarily upon claimant's work history
with the employer which required daily repetitive stooping, bending,
twisting and lifting at work. While the November 1990 injury may have
been a factor in bringing about the symptomatic L5_S1 degenerative
disc, it was only one small incident over a long period of time which
caused the symptoms to appear in a previously asymptomatic spine.
The next issue is whether the June 22, 1992 injury is a cause of
permanent disability. Dr. Bashara opined that claimant incurred five
percent permanent partial impairment to the low back as a result of the
L5_S1 degenerative disc. Having previously found that the disc was
aggravated by work for the employer, it follows that claimant did incur
permanent disability as a result of the June 22, 1992 injury.
It is found that claimant's time lost from work beginning June 22, 1992
through September 20, 1992, is causally connected to the low back
injury of June 22, 1992. Claimant was off work receiving extensive
treatment from numerous medical professionals including physical
therapists, medical doctors and chiropractic doctors in an effort to
relieve the symptoms. The time off work was appropriate and necessary
under the circumstances and is compensable.
It is found that the commencement date for permanent partial disability
is September 21, 1992, the day after the temporary disability ended.
Claimant sought medical treatment from a variety of specialists for
this low back problem subsequent to June 22, 1992. Claimant did not
request authorization from the employer to seek such treatment. The
employer denied liability from the outset on the June 22, 1992 injury
date.
It is found that the medical treatment and expenses are causally
connected to the work injury in that all treatment was for the spine
complaints which were caused by the repetitive trauma injury of June
22, 1992.
Since the injury claimant incurred on June 22, 1992 was to the low
back, it follows that claimant's loss of earning capacity should be
rated industrially. Issues to be considered when determining
industrial disability include claimant's age, education, work
experience, motivation, and the employer's efforts to re-employ. It is
found that claimant was age 42 at the time of injury with a tenth grade
education. Claimant's work history consists primarily of construction
work and some experience as a factory assembler. Claimant is currently
employed with the employer performing the same work that he did prior
to the injury in question. The employer made a good faith effort to
re-employ. Claimant is motivated to remain in the work force, and
quite willing to work with back pain.
Claimant has worked with restrictions which are best described as a
general directive to refrain from excessive repetitive bending,
stooping or twisting of the low back. Claimant suffers discomfort
while performing his work but is currently able to perform all aspects
of the work assigned to him with respect to building construction.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency decision filed
September 19, 1994 are adopted as final agency action.
WHEREFORE, the decision of the deputy is affirmed.
ORDER
THEREFORE, it is ordered:
That defendants Morton Buildings, Inc., and Insurance Company of North
America, in file number 967045, are to pay claimant additional
temporary total disability benefits based upon the recalculated benefit
amount of three hundred twenty_two and 38/100 dollars ($322.38).
That in file number 1020423, defendants pay claimant healing period
benefits at the rate of two hundred seventy_seven and 94/100 dollars
($277.94) per week for the period of June 22, 1992 through September
20, 1992.
That defendants pay claimant fifty (50) weeks of permanent partial
disability benefits at the rate of two hundred seventy_seven and 94/100
dollars ($277.94) per week commencing September 21, 1992, in file
number 1020423.
That defendants shall pay for claimant's reasonable and necessary
medical and transportation expenses incurred as a result of the June
22, 1992 work-related injury in file number 1020423, as outlined in the
exhibits.
That defendants shall receive credit for benefits previously paid.
That all accrued benefits are to be paid in a lump sum.
That interest will accrue pursuant to Iowa Code section 85.30.
That defendants shall pay the costs of this matter including the
transcription of the hearing.
That defendants file claim activity reports as requested by this agency
pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of January, 1995.
_______________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. John Broz
Attorney at Law
P.O. Box 5245
Cedar Rapids, Iowa 52406
Mr. John M. Bickel
Attorney at Law
P.O. Box 2107
Cedar Rapids, Iowa 52406
5-1100; 5-1801; 5-1802;
5-1803; 5-2500
Filed January 30, 1995
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
DEAN STULL,
Claimant,
vs.
File Nos. 967045/1020423
MORTON BUILDING, INC.,
A P P E A L
Employer,
D E C I S I O N
and
INSURANCE COMPANY OF NORTH
AMERICA (INA),
Insurance Carrier,
Defendants.
_________________________________________________________________
5-1100; 5-1801; 5-1802; 5-1803; 5-2500
Claimant sustained two injuries, the first being a straddling injury in
November 1990, which caused a tear in the urethra. No permanent
disability was allowed as no medical professional issued an opinion of
permanent impairment.
The second injury was incurred in June of 1992, and was a repetitive
motion aggravation of an L5-S1 degenerative disc. Claimant, at age 40,
with a five percent impairment rating and no significant work
restrictions, was given ten percent industrial disability after the
employer allowed reemployment in good faith and claimant was able to
return to his old work without significant problems.
Employer's authorization defense to medical benefits was found
inappropriate as the employer had denied liability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
DEAN STULL, :
:
Claimant, : File No. 1020423
: 967045
vs. :
:
MORTON BUILDING, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
INA, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by the
claimant, Dean Stull, as a result of alleged injuries to his
low back and body as a whole occurring on November 12, 1990,
in file number 967045, and on June 22, 1992, in file number
1020423. The employer denied liability with respect to the
June 22, 1992 injury and numerous issues are presented for
determination. The employer admitted liability with respect
to the November 12, 1990 injury with multiple issues
presented for determination. The parties stipulated that
INA is the insurance carrier for the claims in question.
This case was heard and fully submitted at Cedar
Rapids, Iowa, on August 30, 1994. The record in the
proceeding consists of joint exhibits 1 through 8,
defendants' exhibits A, B and C, and claimant's exhibits 1
through 5; and, testimony from Dean Stull, Michael Tompkins,
and Morris Greenfield.
ISSUES
The issues presented for determination in file numbers
967045 and 1020423 are as follows:
1. Whether the alleged injuries are causally connected
to permanent partial disability and the extent thereof;
2. Whether the alleged injuries are causally connected
to a period of temporary disability and the extent thereof;
3. The commencement date for permanent partial
disability;
4. Whether bonus income should be considered when
calculating gross weekly earnings for claimant; and,
Page 2
5. Whether claimant is entitled to section 85.27
medical benefits, the causal connection and authorization of
such expenses.
An additional issue is presented for determination in
file number 1020423:
1. Whether claimant incurred an injury which arose out
of and in the course of employment with the employer, Morton
Buildings, Inc., on June 22, 1992.
FINDINGS OF FACT
Having heard the testimony of the witnesses and having
considered all of the evidence in the record, the deputy
industrial commissioner finds:
Dean Stull began work for the employer, Morton
Buildings, Inc., in 1976. Claimant has always worked for
the company as a laborer with respect to the construction of
pole buildings. On June 22, 1992, claimant sustained an
injury to the peroneum when a board broke beneath his feet
allowing him to fall onto another supporting piece of wood.
Claimant suffered a urethral tear which was subsequently
repaired by surgery. Claimant was off work beginning
November 16, 1990 through November 26, 1990, as a result of
the injury and surgery. Claimant suffered from pain and
discomfort for approximately six months after that injury
but eventually made a full recovery. No permanent partial
impairment was assessed by any of the examining physicians
with respect to the torn urethra.
The employer accepted compensability of this aspect of
the claim and paid temporary total disability benefits in
the amount of $352.72, and all related medical expenses.
Claimant was an hourly wage earner at the time of
injury on November 12, 1990. The employer calculated the
gross earnings based on a straight hourly wage which
amounted to $389.69 per week. Claimant was also entitled to
receive a bonus based upon the speed at which a job was
finished and the quality of workmanship. These bonuses were
paid on a regular basis and were made based upon a set
formula. Bonuses were paid each and every month should the
individual be entitled. All employees were treated equally
when bonuses were granted. It is found that the bonus was
more in line with an incentive to produce a higher quality
work product and a faster turnaround time when erecting
buildings. The bonus must be distinguished from a Christmas
bonus which is given as a gift at the whim of the employer.
In this situation, claimant had control over the bonus he
received by working harder and performing better quality
work. Therefore, it is found that claimant's weekly rate
should be calculated based on gross earnings of $543.36 per
week for the injury date of November 12, 1990.
With respect to the injury date of June 22, 1992, the
employer contends that the weekly rate should be calculated
based upon gross earnings of $396 per week, which is the
Page 3
straight hourly rate. Applying the same analysis to the
June 22, 1992 rate calculation, it is found that claimant's
weekly benefit amount should be based upon a gross weekly
earnings of $452.05, which includes the bonus paid for
quality and speedy workmanship.
Claimant went off work on June 22, 1992, due to
significant pain in the low back and spine. Claimant first
sought treatment from a chiropractor with little relief.
Claimant later received acupuncture treatments with little
or no relief. The problem was eventually diagnosed as an
L5-S1 degenerative disc which probably preexisted both the
June 22, 1992 injury date and the November 12, 1990 injury
date. (Claimant's Exhibit 1) Claimant was off receiving
treatment for the low back condition beginning June 22, 1992
through September 20, 1992. James W. Turner, M.D., released
claimant to return to work effective September 21, 1992.
(Joint Exhibit 24) Therefore, temporary benefits should end
on September 20, 1992.
Claimant attributed his back problems for which he was
under treatment during this period in question to the
November 12, 1990 straddle injury. However, the medical
records do not document a history of back pain as a result
of that November 1990 injury. To the contrary, claimant
repeatedly gave a medical history indicating that back pain
occurred approximately one year prior to June 22, 1992.
Claimant indicated to the medical professionals that the
back pain was a progressive problem which had escalated over
the year prior. Claimant's work for the employer was of a
heavy manual labor type which on a daily basis required much
lifting and strenuous use of the back. This type of work
can cause aggravations of degenerative discs. (Cl Ex. 2)
Therefore, the question becomes whether the claimant's back
pain is causally connected to either the November 1990
injury or the June 22, 1992 cumulative trauma injury, or
neither.
It is found that claimant has failed to establish by a
preponderance of the evidence that the low back symptoms for
which treatment resulted on June 22, 1992 were causally
connected to the November 12, 1990 straddle injury.
Claimant has failed to establish a temporal relationship or
medical history indicating that there was back pain at the
time of the initial fall. Furthermore, the injury was not a
sudden onset but was a gradual and slow building process
over a period of time which indicates that the straddle
injury was but one of many microtraumas that could have
caused the degenerative disc to become symptomatic.
Under the cumulative trauma doctrine, the first date of
disability is used as the date of injury. In this
situation, claimant went off work on June 22, 1992 and chose
that date as the date of injury. It is found that the type
of work claimant had performed for Morton Buildings, Inc.,
is of the type that could aggravate a preexisting
degenerative disc. It is found that claimant's back
problems for which he sought treatment on June 22, 1992 are
causally connected to the work performed for this employer.
Bradley Kristiansen, D.C., opined that the pain started at
Page 4
the fall but was aggravated by other lifting, bending and
twisting at work. (Cl. Ex. 2) It is apparent that Dr.
Kristiansen was impressed by the type of work claimant was
performing which involves daily bending, twisting and
lifting.
James W. Turner, M.D., a board certified orthopedic
surgeon, was somewhat unequivocal with respect to his
opinions on causal connection. It is obvious from the
deposition testimony that Dr. Turner was not familiar with
the legal standards used in determining compensability of a
claim. (Jt. Ex. 8, pp. 9 & 14) Dr. Turner believed that he
could not issue an opinion on causal connection without
having x-ray films or records from 1990. He believed it
would be speculation to make such a statement without have
to have x-rays. This stance by a medical professional is
not practical when serious affairs need to be resolved as
few, if any, people would have x-rays taken on a regular
basis so as to protect their rights under workers'
compensation law. However, Dr. Turner did state that if
there were preexisting degenerative changes, then there
would be an aggravation from the work history with Morton
Buildings. (Jt. Ex. 8, p. 11)
Jerome G. Bashara, M.D., a board certified orthopedic
surgeon, believed that the L5-S1 degenerative disc was a
preexisting condition that was aggravated by the straddle
injury and work with the employer.
Having considered all the evidence in the record, it is
found that claimant suffered an injury arising out of and in
the course of employment on June 22, 1992, best described as
a cumulative trauma injury which aggravated a preexisting
degenerative disc at the L5-S1 level. This finding is based
primarily upon claimant's work history with the employer
which required daily repetitive stooping, bending, twisting
and lifting at work. While the November 1990 injury may
have been a factor in bringing about the symptomatic L5-S1
degenerative disc, it was only one small incident over a
long period of time which caused the symptoms to appear in a
previously asymptomatic spine.
The next issue is whether the June 22, 1992 injury is a
cause of permanent disability. Dr. Bashara opined that
claimant incurred 5 percent permanent partial impairment to
the low back as a result of the L5-S1 degenerative disc.
Having previously found that the disc was aggravated by work
for the employer, it follows that claimant did incur
permanent disability as a result of the June 22, 1992
injury.
It is found that claimant's time lost from work
beginning June 22, 1992 through September 20, 1992, is
causally connected to the low back injury of June 22, 1992.
Claimant was off work receiving extensive treatment from
numerous medical professionals including physical
therapists, medical doctors and chiropractic doctors in an
effort to relieve the symptoms. The time off work was
appropriate and necessary under the circumstances and is
compensable.
Page 5
It is found that the commencement date for permanent
partial disability is September 21, 1992, the day after the
temporary disability ended.
Claimant sought medical treatment from a variety of
specialists for this low back problem subsequent to June 22,
1992. Claimant did not request authorization from the
employer to seek such treatment. The employer denied
liability from the outset on the June 22, 1992 injury date.
It is found that the medical treatment and expenses are
causally connected to the work injury in that all treatment
was for the spine complaints which were caused by the
repetitive trauma injury of June 22, 1992.
Since the injury claimant incurred on June 22, 1992 was
to the low back, it follows that claimant's loss of earning
capacity should be rated industrially. Issues to be
considered when determining industrial disability include
claimant's age, education, work experience, motivation, and
the employer's efforts to re-employ. It is found that
claimant was age 42 at the time of injury with a tenth grade
education. Claimant's work history consists primarily of
construction work and some experience as a factory
assembler. Claimant is currently employed with the employer
performing the same work that he did prior to the injury in
question. The employer made a good faith effort to
re-employ. Claimant is motivated to remain in the work
force, and quite willing to work with back pain.
Claimant has worked with restrictions which are best
described as a general directive to refrain from excessive
repetitive bending, stooping or twisting of the low back.
Claimant suffers discomfort while performing his work but is
currently able to perform all aspects of the work assigned
to him with respect to building construction.
REASONING AND CONCLUSIONS OF LAW
The first issue is whether claimant incurred is whether
claimant incurred permanent partial disability in file
number 967045 as a result of the November 12, 1990 injury.
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).
It is held that claimant has failed to establish that
he suffered permanent partial disability as a result of the
urethral tear on November 12, 1990. Therefore, claimant is
not entitled to permanent partial disability as a result of
that injury.
Page 6
The second issue is the extent of entitlement to
temporary total disability as a result of the November 12,
1990 work injury in file number 967045.
Claimant failed to establish that the loss time on and
after June 22, 1992, was causally connected to the November
1990 injury. However, the employer did stipulate that lost
time was incurred as a result of the November 1990 injury.
This loss time was paid at an incorrect weekly benefit rate.
Having found that claimant was entitled to a gross weekly
earnings of $543.36, it follows that his weekly benefit
amount is $322.38 based upon being single and entitled to
two exemptions at the time of injury. The employer shall
recalculate the entitlement to temporary total disability
for the stipulated time off work.
Iowa Code section 85.36(6) must be interpreted to allow
the regularly paid bonus as a part of the gross weekly wage
because it was paid as an incentive for claimant to work
harder and produce a higher quality product in a more timely
and efficient manner as opposed to being a bonus which was
given at the whim of the employer.
The gross weekly earnings for claimant in file number
1020423 is held to be $452.05 for the injury date of June
22, 1992 based upon the analysis previously set forth under
Iowa Code section 85.36(6). Claimant's weekly benefit rate
is $277.94 based upon a status of single and entitlement to
two exemptions on June 22, 1992.
No issues concerning 85.27 benefits remain as all
payments were made in file number 967045 with respect to the
November 1, 1990 straddle injury which caused a tear in the
urethra. The only medical expenses which remain unpaid
occurred on or after June 22, 1992.
The next issue is whether claimant incurred an injury
arising out of and in the course of employment on June 22,
1992, in file number 1020423.
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
Page 7
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
When the disability develops gradually over a period of
time, the "cumulative injury rule" applies. For time
limitation purposes, the compensable injury is held to occur
when because of pain or physical disability, the claimant
can no longer work. McKeever Custom Cabinets v. Smith, 379
N.W.2d 368 (Iowa 1985).
It is held that claimant incurred an injury on June 22,
1992, commonly known as a cumulative trauma injury to the
L5-S1 area of the spine. This was an aggravation of a
preexisting degenerative disc caused by repetitive bending,
stooping and lifting at work for Morton Buildings, Inc.
The next issue is the causal connection and entitlement
to temporary total disability benefits.
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).
Iowa Code section 85.34(1) provides that healing period
benefits are payable to an injured worker who has suffered
permanent partial disability until (1) the worker has
returned to work; (2) the worker is medically capable of
returning to substantially similar employment; or (3) the
worker has achieved maximum medical recovery. The healing
period can be considered the period during which there is a
reasonable expectation of improvement of the disabling
condition. See Armstrong Tire & Rubber Co. v. Kubli, 312
N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can
be interrupted or intermittent. Teel v. McCord, 394 N.W.2d
405 (Iowa 1986).
It is held that claimant is entitled to healing period
benefits beginning June 22, 1992 through September 20, 1992,
as a result of the June 22, 1992 injury. Claimant
established the causal connection of the loss time to
treatment for the low back condition based upon the medical
evidence and the history of performing work which required
extensive bending and stooping. The medical records clearly
reveal that claimant was receiving treatment for a
degenerative disc at the L5-S1 level which became
symptomatic after working for the employer.
The next issue concerns claimant's entitlement to
section 85.27 benefits, their causal connection and
authorization.
Page 8
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Iowa Code section 85.27.
Holbert v. Townsend Engineering Co., Thirty-second Biennial
Report of the Industrial Commissioner 78 (Review-reopen
1975).
It is held that the employer cannot allege
authorization as a defense as liability was denied in file
number 1020423 with respect to the injury date of June 22,
1992. Therefore, claimant had the right to choose any
medical provider he desired and the authorization defense
thereby fails.
It is held that claimant has established the causal
connection of the listed expenses to the June 22, 1992
cumulative trauma injury, as previously found in the
statement of facts. Therefore, all medical expenses for
which claimant seeks reimbursement are compensable in file
number 1020423.
The final issue with respect to the June 22, 1992
injury in file number 1020423 is the extent of entitlement
to permanent partial disability under section 85.34(2)(u).
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
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
Page 9
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.
Having found that claimant incurred permanent
disability as a result of the L5-S1 degenerative disc, it
follows that the claim must be evaluated industrially. It
is held that claimant incurred a 10 percent industrial
disability to the body as a whole as a result of the June
22, 1992 aggravation of a preexisting degenerative disc.
The employer's good faith re-employment along with the lack
of significant work restrictions and ability to perform his
work in an appropriate fashion tends to keep the industrial
disability low. However, claimant has clearly lost access
to an identifiable segment of the labor market. Claimant,
in his early 40's, is in the peek of his career as a
construction laborer. Claimant's age, education and
experience indicate that industrial disability has been
incurred as a result of the low back injury.
Having previously established a termination of healing
period on September 20, 1992, it follows that the
commencement date for permanent partial disability is
September 21, 1992.
ORDER
IT IS THEREFORE ORDERED that defendants Morton
Buildings, Inc., and INA Insurance Company, in file number
967045, are to pay claimant additional temporary total
disability benefits based upon the recalculated benefit
Page 10
amount of three hundred twenty-two and 38/100 dollars
($322.38).
IT IS FURTHER ORDERED in file number 1020423 that
defendants pay claimant healing period benefits at the rate
of two hundred seventy-seven and 94/100 dollars ($277.94)
per week for the period of June 22, 1992 through September
20, 1992.
IT IS FURTHER ORDERED that defendants pay claimant
fifty (50) weeks of permanent partial disability benefits at
the rate of two hundred seventy-seven and 94/100 dollars
($277.94) per week commencing September 21, 1992, in file
number 1020423.
IT IS FURTHER ORDERED that defendants shall pay for
claimant's reasonable and necessary medical and
transportation expenses incurred as a result of the June 22,
1992 work-related injury in file number 1020423, as outlined
in the exhibits.
IT IS FURTHER ORDERED that defendants shall receive
credit for benefits previously paid.
IT IS FURTHER ORDERED that all accrued benefits are to
be paid in a lump sum.
IT IS FURTHER ORDERED that interest will accrue
pursuant to Iowa Code section 85.30.
IT IS FURTHER ORDERED that costs of this action are
assessed against defendants pursuant to rule 343 IAC 4.33.
IT IS FURTHER ORDERED that defendants file claim
activity reports as requested by this agency pursuant to
rule 343 IAC 3.1.
IT IS FURTHER ORDERED that in file number 967045,
claimant's gross weekly earnings are five hundred forty-
three and 36/100 dollars ($543.36) with a weekly benefit
amount of three hundred twenty-two and 38/100 dollars
($322.38).
IT IS FURTHER ORDERED that in file number 1020423 that
claimant's gross weekly earnings are four hunded fifty-two
and 05/100 dollars ($452.05) with a weekly benefit rate of
two hundred seventy-seven and 94/100 dollars ($277.94).
Signed and filed this ____ day of September, 1994.
________________________________
MARLON D. MORMANN
DEPUTY INDUSTRIAL COMMISSIONER
Page 11
Copies To:
Mr John Broz
Attorney at Law
P O Box 5245
Cedar Rapids IA 52406
Mr John M Bickel
Attorney at Law
115 3rd St SE
P O Box 2107
Cedar Rapids IA 52406-2107
5-1100; 5-1801; 5-1802
5-1803; 5-2500
Filed September 19, 1994
Marlon D. Mormann
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
DEAN STULL,
Claimant, File No. 1020423
967045
vs.
MORTON BUILDING, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
INA,
Insurance Carrier,
Defendants.
------------------------------------------------------------
5-1100; 5-1801; 5-1802; 5-1803; 5-2500
Claimant sustained two injuries, the first being a
straddling injury in November 1990, which caused a tear in
the urethra. No permanent disability was allowed as no
medical professional issued an opinion of permanent
impairment.
The second injury was incurred in June of 1992, and was a
repetitive motion aggravation of an L5-S1 degenerative disc.
Claimant, at age 40, with a 5% impairment rating and no
significant work restrictions, was given 10% industrial
disability after the employer allowed re-employment in good
faith and claimant was able to return to his old work
without significant problems.
Employer's authorization defense to medical benefits was
found inappropriate as the employer had denied liability.
2500; 2600
Filed September 24, 1993
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
TERRY MILLER, :
: File No. 967285
Claimant, :
: D E C I S I O N
vs. :
: O N
A-1 READY MIX, INC., :
: A L T E R N A T E
Employer, :
: M E D I C A L
and :
: C A R E
AETNA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
2500, 2600
Claimant filed an application for alternate medical care on
August 31, 1993. The hearing assignment administrator set the
matter for an in-person hearing on September 16, 1993. claimant
was represented by his attorney. Defendants were represented by
a senior claims representative for defendant-insurance company.
Claimant had sustained a work related injury to his right knee on
November 20, 1990. He sought immediate medical attention. Dr.
Green, an authorized treating physician performed on February 8,
1991. Claimant still encountered some right knee pain.
Defendants sent claimant to Dr. Kirkland. He treated claimant in
a conservative fashion. Eventually Dr. Kirkland told claimant
there was nothing else the physician could do for him.
Defendants then sent claimant to Dr. McGuire who opined that
another surgery might help claimant. Claimant testified that the
senior claims representative who was assigned to the case
indicated that the surgery might result in only a 30% improvement
and that she would not authorize the second surgical procedure.
Then the representative sent claimant to Dr. McGuire's partner,
Dr. Sullivan. He treated claimant conservatively. He did not
recommend a second surgical procedure. Eventually, he too told
claimant there was nothing else to do. Claimant on his own,
sought medical assistance from his family physician, Dr. Check.
He recommended surgery. The surgery was not performed. Then
claimant, upon the advice of his attorney, sought the opinion of
Dr. Bashara. He in turn opined that claimant would be a
candidate for a right knee arthroscopy, both diagnostic and
operative.
HELD: Claimant was able to prove by a preponderance of the
evidence that he was entitle to alternate medical care as
provided by section 85.27. the alternate medical care awarded
was treatment with Dr. Bashara.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
TERRY MILLER, :
: File No. 967285
Claimant, :
: D E C I S I O N
vs. :
: O N
A-1 READY MIX, INC., :
: A L T E R N A T E
Employer, :
: M E D I C A L
and :
: C A R E
AETNA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
Claimant filed an original notice and petition concerning an
application for alternate medical care pursuant to section 85.27
of the Iowa Code and rule 343 IAC 4.48. The petition was filed
on August 31, 1993. In his petition, as amended, claimant
requested alternate medical care including diagnostic and
arthroscopic surgery for his right knee from Jerome G. Bashara,
M.D., or from the Clinic at the University of Iowa.
On September 2, 1993, Byron J. Orton, Industrial
Commissioner, filed an order of delegation of authority. In his
order, Commissioner Orton provided that:
Pursuant to Iowa Code section 86.3 the deputy industrial
commissioner presiding at the contested case in this application
for alternate medical care is hereby delegated the authority to
issue the final agency decision on the application. There will
be no right of intra-agency appeal on this decision. See
Continental Telephone Co. v. Colton, 348 N.W.2d 623 (Iowa 1984)
and LeaseAmerica Corp. v. Iowa Dept. of Revenue, 333 N.W.2d 847
(Iowa 1983).
...
The presiding deupty [sic] industrial commissioner's decision
in this matter shall be the final agency decision. See Iowa Code
section 17A.15(1).
Also on September 2, 1993, the hearing administrator
assigned the matter for an in-person hearing set for September
16, 1993 at 8:30 a.m. The notices were mailed by employees of
the Division of Industrial Services on September 2, 1993.
The hearing was held. The proceeding was recorded by an
Page 2
audio cassette player. At the hearing, claimant was represented
by Arthur C. Hedberg, Jr. Defendants were represented by Joanne
Bell, Senior Claim Representative for Aetna Casualty & Surety
Company.
During the course of the hearing, claimant testified. In
addition, claimant submitted exhibits 1-11 and defendants
submitted exhibits 1-6. It is noted for the record that
claimant's exhibit 11 was only admitted after defendants asked a
question during cross-examination. The response elicited can be
answered by the best evidence. It is also noted that during the
proceeding, claimant requested the deputy industrial commissioner
to take administrative notice of two items. The deputy did
comply with claimant's request.
ISSUE
The sole issue presented for resolution is whether claimant
is entitled to alternate medical care as provided by section
85.27 of the Iowa Code.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The deputy, having heard the testimony and considered all
the evidence, makes the following findings of fact and
conclusions of law:
Claimant sustained a work-related injury to his right lower
extremity which involved his right knee. The work injury
occurred on November 12, 1990. Almost immediately following the
work injury, claimant sought medical attention at the emergency
room of Iowa Lutheran Hospital. Several days later, claimant was
examined by his family physician, Kaye E. Check. The claimant
was referred to Dr. Green, M.D., (first name unknown) an
orthopedic specialist. After conservative care which included
physical therapy, Dr. Green performed a diagnostic right knee
arthroscopy and a partial medial meniscectomy. Physical therapy
was prescribed for claimant's post-op treatment. Claimant did
not progress. His condition remained the same. He experienced
swelling, discomfort, muscle spasms and weakness in the right
lower extremity.
Because of his very poor progress, defendants authorized
claimant to see Mark B. Kirkland, D.O. Dr. Kirkland ordered
x-rays. Claimant was again treated conservatively. Dr. Kirkland
treated claimant through March 2, 1992. As of September 23,
1991, claimant had been released to return to work without
restrictions. While claimant attempted a return to work, he did
not progress to his own satisfaction. He testified that he still
encountered the same problems as he had experienced previously.
He testified that had Dr. Kirkland admitted to claimant there was
nothing more the orthopedic surgeon could do for claimant.
Because claimant was not satisfied with the treatment he had
received from Dr. Kirkland, defendants authorized claimant to see
Daniel McGuire, M.D. In his office note of July 6, 1992, Dr.
McGuire opined the following relative to claimant's condition:
Page 3
Terry and his wife return. He is quite miserable
now with anterior knee pain. There is a significant
amount of crepitus underneath his kneecap. He still
has some atrophy of his quadriceps.
I told him there is really not much we could do. I
offered to take another look inside of his knee and
evaluate the undersurface of his patella, maybe clean
up the fraying that may have occurred, but typically,
this is not going to solve all of his knee pain, and he
is going to have to do much of his rehab to help with
this knee pain. We have reached kind of an impasse
here. This has been a long time. Nobody has really
ever found much wrong.
I told him I would discuss the case with the
insurance company. I told him to go home and think
about it and contact us within the next few days.
Claimant testified that he was told by Ms. Bell that the
insurance company had been informed by Dr. McGuire there was only
a 30 percent chance for improvement and that the carrier would
not authorize the surgery unless there could be a 40 percent
chance for improvement.
Defendants decided to seek another opinion relative to
claimant's condition. As a result, claimant was authorized to
seek a second opinion from Dr. McGuire's partner, Patrick
Sullivan, M.D. Dr. Sullivan treated claimant for a period of
time. In August of 1992, Dr. Sullivan wrote the following
relative to claimant's right knee condition:
Returns with nerve conductions EMG's right lower
extremity. They were within normal limits and there is
no evidence of a radicular root syndrome on his right
leg. The patient's exam is not much changed since I
last saw him. I have re-explained to the patient that
I believe there is (sic) only 2 remaining explanations
for his continued right knee weakness. One is
inadequate rehabilitation which I explained to the
patient also includes his attitude and approach to the
rehabilitation. The second possibility is continued or
new internal derangement of the right knee.
PLAN: I have placed him in 2 weeks intensive therapy.
I have authorized him to get a Cibex before in the end
of treatment. If we see progress we will continue
along this route. We will release him from work for
this two week period of time. At the end of two weeks
if I see no significant change I told the patient I
believe I would have to release him back to work
without restrictions. I am hesitant about recommending
a diagnostic arthroscopy to the patient for a couple
reasons. #1 the patient seems to be trying to transfer
all of responsibility for his knee somewhere else. I
don't think he has a healthy approach of accepting the
Page 4
problem as his and working on it. The physical
examination is very soft and I don't get significant
reasons to re-operate on the patient. Finally, the
patient has had one knee arthroscopy and a MRI since
that time reveals no suggestions of continued or new
internal derangements.
Claimant was released to return to work without restrictions.
Claimant returned to Dr. Sullivan in December of 1992. Claimant
requested additional physical therapy. The office note for
December 2, 1992 reflects Dr. Sullivan's response:
Since I saw him in August has returned to work. He
states without new injury the right knee has become
achy again. It is his opinion that he should go back
to Pam Duffy for another couple of weeks and then
return to work again. He can't tell me how the
symptoms are any different than they were before. He
describes some achiness soreness in the right knee with
long activities.
Exam: He walks without a limp. He has full ROM of
the knee. Minimal effusion. His quads are still
atrophic compared to the opposite side. The rest of
the exam is unchanged.
IMPRESSION; Right quad atrophy with residual knee
discomfort.
Plan: I have told the patient that I think his
problem is the same as before. I think he should
simply perform the exercises as instructed previously.
However I don't think he should take time off work to
do this. I think he should take time off work to do
this. I think he should simply do it in his free time.
The patient was very dissatisfied with my opinion and I
suggested to him that as much as I wish I could help
him all of our attempts to this point have been less
than successful in his eyes. With no change in his
condition, I don't foresee being able to do much more
for the patient.
Claimant returned to work in December of 1992. Since that
time, claimant has been unable to work 40 hours per week.
Claimant testified that he returned to his family physician, Dr.
Check. Claimant admitted he did not seek authorization for Dr.
Check's treatment. Claimant also admitted that he paid for those
medical bills relative to Dr. Check from his own pocket.
Dr. Check issued the following on June 8, 1993:
Mr. Miller continues to have right leg pain and
weakness from a deranged knee joint. I feel that he
should be examined by an orthopedic specialist and have
corrective surgery.
Claimant also testified that he treated with Dr. Bashara
pursuant to the direction of claimant's lawyer, Arthur Hedberg.
Page 5
Dr. Bashara recommended in his report of August 6, 1993, that:
I saw Mr. Miller today in the office. He is having
increasing symptoms in the right leg.
I have recommended that he undergo a diagnostic and
operative arthroscopy of his right knee, thru the Mercy
Ambulatory Surgery Center. The approximate time of
recovery would be 6 weeks. That could be altered based
on what is found at the time of surgery.
The above problems are felt to be directly related
to his work injury.
As mentioned previously, claimant is applying for diagnostic
and arthroscopic surgery on his right knee. Defendants have
denied the request.
Section 85.27 of the Iowa Code provides in relevant portion
that:
For purposes of this section, the employer is
obliged to furnish reasonable services and supplies to
treat an injured employee, and has the right to choose
the care. The treatment must be offered promptly and
be reasonably suited to treat the injury without undue
inconvenience to the employee. If the employee has
reason to be dissatisfied with the care offered, the
employee should communicate the basis of such
dissatisfaction to the employer, in writing if
requested, following which the employer and the
employee may agree to alternate care reasonably suited
to treat the injury. If the employer and employee
cannot agree on such alternate care, the commissioner
may, upon application and reasonable proofs of the
necessity therefor, allow and order other care....
This statute has been amended as House File 2250 by the 74th
General Assembly, effective July 1, 1992. The amendment requires
the Industrial Commissioner to provide a method to expeditiously
resolve disputes under this section.
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-Reopening 1975).
In a recent appeal decision dealing with an application for
alternate medical care, the industrial commissioner has affirmed
the presiding deputy industrial commissioner's denial of
alternate medical care. See Barry Long v. Robert's Dairy
Company, file number 982297 (Appeal Decision, February 5, 1993).
An application for alternate medical care is not automatically
sustained because a claimant is dissatisfied with the care he has
Page 6
been receiving. In Long, supra, the deputy has determined that
mere dissatisfaction with the medical care is not ample grounds
for granting an application for alternate medical care. Rather,
the claimant must show that the care was not offered promptly;
was not reasonably suited to treat the injury; or that the care
was unduly inconvenient for the claimant.
Claimant is dissatisfied with the medical care he has been
receiving. There is good cause for his dissatisfaction. He has
experienced right knee difficulties for nearly three years.
Claimant has been treated by four different authorized treating
orthopedic surgeons. Dr. McGuire has indicated additional
arthroscopic surgery may prove beneficial. Claimant has
testified that a representative from the insurance company does
not believe that a 30 percent chance for success or improvement
warrant an additional surgery. Defendants refused to authorize
the second surgery. Instead, defendants have sent claimant to
Dr. McGuire's partner. He does not suggest additional surgery.
Claimant had requested additional physical therapy. He was told
to perform home exercises.
Because of continued problems, claimant has treated with his
family physician, Dr. Check. She too has recommended corrective
surgery. Claimant, then at the suggestion of his attorney, has
sought an opinion from Dr. Bashara who is also of the opinion
that diagnostic and operative arthroscopy of the right knee is
warranted. This deputy agrees. Three physicians have opined
that surgery is or may be beneficial to claimant. Claimant has
been shuffled from one physician to another. The responses from
the authorized treating orthopedic surgeons have been less than
satisfactory. They have indicated there is nothing more to do in
the way of treatment. Dr. Bashara, however, opines there is an
appropriate mode of treatment. He recommends additional surgery.
His opinion is reasonable, given the continued problems which
claimant has experienced. Claimant has met his burden of proof.
He is entitled to alternate medical care with Jerome Bashara,
M.D.
ORDER
THEREFORE, it is ordered:
Claimant's application for alternate medical care is
granted. Pursuant to section 85.27 of the Iowa Code, defendants
shall provide to claimant reasonable and necessary medical care
which includes treatment by Jerome Bashara, M.D.
Costs, if any, are assessed to defendants pursuant to rule
343 IAC 4.33.
Signed and filed this ____ day of September, 1993.
Page 7
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Arthur Hedberg
Attorney at Law
840 Fifth Avenue
Des Moines, Iowa 50309-1398
A-1 Ready Mix, Inc.
400 Delaware
Des Moines, Iowa 50317
REGULAR & CERTIFIED MAIL
Joanne Bell
Senior Claims Representative
Aetna Casualty and Surety Co.
500 East Court Avenue
Des Moines, Iowa 50309
REGULAR & CERTIFIED MAIL
1100; 1108; 1802; 1803
2500; 2700
Filed December 6, 1991
Bernard J. O'Malley
before the iowa industrial commissioner
____________________________________________________________
:
BILL BURKMIRE, :
:
Claimant, : File Nos. 886779
: 967334
vs. : 974055
:
NATIONAL BY-PRODUCTS, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
2500; 2700; 1802
Defendants ordered to pay for a right knee surgery and any
healing period connected therewith as to a May 28, 1988 work
injury.
1100; 1108; 1803
Found claimant's August 23, 1990 injury arose out of and in
the course of claimant's employment and this work injury
caused claimant to have a left knee surgery and a 11%
permanent impairment to his left lower extremity, entitling
claimant to 24.2 weeks of permanent partial disability.
1100
Found claimant's September 17, 1990 alleged injury did not
arise out of and in the course of claimant's employment.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DANIEL J. DROPINSKI,
Claimant,
vs.
File No. 967351
OWEN INDUSTRIES, INC., d/b/a
PAXTON VIERLING STEEL CO.,
A R B I T R A T I O N
Employer,
Self-Insured D E C I S I O N
Defendant.
___________________________________________________________
STATEMENT OF THE CASE
This is a contested case proceeding under Iowa Code
Chapter 17A upon a petition in arbitration filed by claimant
Daniel J. Dropinski against his self-insured former
employer, Owen Industries, Inc., d/b/a Paxton Vierling Steel
Company. Mr. Dropinski asserts that he sustained a
work-related back injury on November 12, 1990, and now seeks
benefits under the Iowa Workers' Compensation Act.
This case was heard and fully submitted in Council
Bluffs, Iowa on June 2, 1994. The record consists of joint
exhibits 1 through 44, defendant's exhibit A, and the
testimony of claimant, Bradley Johnson, Robert Howerton,
David Parker, Scott Massengale and Randy Driver. Exhibit
42, a metal pry bar (approximately 16 inches long and
weighing approximately one pound) was remanded to the
custody of attorney Roger Carter until such time as this
litigation has become final. A photograph of a similar pry
bar is shown in exhibit 7 to claimant's deposition, joint
exhibit 43.
ISSUES
The parties have stipulated to the following:
1. An employment relationship existed between claimant
and defendant at the time of the alleged injury;
2. Entitlement to temporary total disability or
healing period benefits is no longer in dispute;
3. The commencement date for permanent partial
disability benefits, if any, is January 8, 1992;
4. The correct rate of weekly compensation is $235.14;
5. Although both the cost and reasonableness of
medical expenses are disputed, applicable providers would,
in the absence of contrary evidence, testify to the
reasonableness of fees and treatment;
6. Disputed medical expenses are causally connected to
the medical condition upon which the claim of injury is
Page 2
based;
7. Defendant paid 97.571 weeks of compensation at the
stipulated rate, 40 weeks of which should be credited
against any award of permanent disability.
Issues presented for resolution include:
1. Whether claimant sustained injury arising out of
and in the course of employment;
2. Whether the injury caused either temporary or
permanent disability;
3. The nature and extent of permanent disability, if
any;
4. Entitlement to medical benefits, including whether
disputed expenses are causally connected to the work injury.
Defendant also attempted to assert an authorization
defense to disputed medical expenses. The authorization
defense was ruled invalid because defendant has at all times
denied liability on the claim, thereby forfeiting the right
to control the course of medical treatment, Barnhart v. MAQ,
Inc., I Iowa Industrial Commissioner Report 16 (1981).
FINDINGS OF FACT
Daniel Dropinski, 28 years of age at hearing, is a high
school graduate who has taken remedial courses in
mathematics since the 1990 work injury, and is now enrolled
in an electronics curriculum at Metro Community College.
Mr. Dropinski expects to earn an associate of applied
sciences degree, and intends to continue his education in
pursuit of a bachelors degree.
None of claimant's post-injury education has been
financed by defendant.
Mr. Dropinski's work experience includes work as a
painter, pipe fitter, forklift driver, wallpaper hanger,
carpet layer, grocery sacker, maintenance worker, concrete
laborer and heavy equipment operator (this last, when
claimant worked for his father for just room and board plus
expenses).
At the time of injury, claimant had an impressive
assortment of skills likely to be salable on the competitive
labor market. These include welding, woodworking,
automobile and small engine mechanics, electronics, linoleum
and carpet laying, staining and wallpapering, forklift
driver and pipe fitter.
The work injury occurred on November 12, 1990 when
claimant was ordered to free up a frozen paint pump with a
pry bar. The crew had failed to clean the device on the day
before and the piston had become stuck in the upstroke
position. Mr. Dropinski exerted himself as hard as possible
in attempting to free up the device, but was suddenly driven
Page 3
to his knees by intense pain in the back and legs. He
crawled to a nearby bench and was unable to stand. The
foreman, Paul Roden, eventually called the safety director
who authorized taking claimant to a local hospital. For the
next few weeks, claimant underwent physical therapy along
with part-time work under medical restrictions. However,
the restrictions were not well observed by defendant.
It was originally felt that claimant merely suffered a
strain. As of January 18, 1991, two months later, treating
surgeon Daniel L. McKinney, M.D., concluded that claimant
suffered only from a lumbar strain and a degenerative disc.
However, a lumbar myelogram on April 18, 1991 showed a large
central and right sided disc herniation at L5 S1. Claimant
was treated conservatively until eventually undergoing a
laminectomy and diskectomy at the hands of Dr. McKinney on
August 28, 1991.
At some point between January 18 and March 6, claimant
began developing urinary incontinence, for which he was
eventually referred to a urologist, Euclid J. de Souza, M.D.
Dr. de Souza, who testified by deposition on April 28, 1994,
first saw claimant in April 1991 for complaints of
incontinence, infrequency of urination and difficulty
emptying the bladder. Dr. de Souza testified that a
cystometrogram and electromyogram of the bladder and a
Rigiscan confirmed a neurogenic bladder defect and decreased
erections associated with a neurogenic injury. Dr. de Souza
indicated that claimant suffers hypotonic detrusor, meaning
the muscles used to empty the bladder were not functioning
correctly. Dr. de Souza further testified that he would
"suspect" that the work injury had a prominent part in
claimant's voiding dysfunction since he had no problem prior
to the injury. Dr. McKinney also shares this view, which is
not contradicted by any other medical practitioner.
According to Dr. de Souza, claimant's bladder defect
now results in retention of approximately 5 to 15 ccs of
urine, which will subsequently leak on occasion. Asked
whether he would place any restrictions on claimant's
physical activity due to the bladder and sexual dysfunction,
Dr. de Souza indicated that he would not with respect to
impotency, but would recommend that claimant remain close to
a rest room due to his urinary problems, and that heavy
lifting or pushing or pulling activities would tend to cause
urinary incontinence.
Dr. McKinney eventually rated impairment at 10 percent
body as a whole due to the disc herniation and 15 percent of
the body as a whole due to bladder dysfunction; he thinks
the combined value of both impairment ratings equals 25
percent, "and I believe that they are directly attributable
to his injury of November 12, 1990." These opinions are
expressed in a letter dated March 1, 1992.
In the same letter, Dr. McKinney recommended a
permanent restriction against lifting weights greater than
40 pounds and against frequent bending.
Claimant has also been seen for evaluation by Anil
Page 4
Agarwal, M.D. Dr. Agarwal, a board certified orthopedic
surgeon, testified by deposition on September 16, 1992.
When Dr. Agarwal first saw claimant on July 13, 1991, he
concluded that surgery was medically indicated, largely due
to the bladder incontinence problem. He considered it
"obvious" that when a herniated disc causes bladder
incontinence, surgery is urgent; nonetheless, he would
"leave this to Dr. de Souza to make a comment upon it." Dr.
de Souza's testimony indicates a belief that prompt surgery
would have been indicated, but he cannot state to a degree
of medical certainty that a delay in surgery affected the
permanent disability resulting from bladder incontinence.
Dr. McKinney similarly cannot say with reasonable medical
certainty that earlier treatment of the herniated disc might
have helped the bladder problem, and, on June 6, 1991, did
not believe that further investigation was warranted, since
claimant had made some improvement with medication
prescribed by Dr. de Souza and with physical therapy.
Dr. Agarwal saw claimant again in January 1992. Asked
about permanent medical restrictions, he felt claimant could
lift up to perhaps 50 pounds and do reasonable bending and
stooping, but not too much. He assigned an impairment
rating of 8 percent for the back surgery and 15 percent for
bladder incontinence, combining these to a 22 percent
impairment of the body as a whole.
Defendant strenuously argues that claimant lacks
credibility, pointing to the lack of other witnesses at the
time of the work injury. In particular, defendant points to
the existence of a diary claimant began preparing some seven
weeks prior to the injury, and a number of factual errors
and misspellings contained in the diary. Defendant believes
that claimant either commenced the diary in preparation for
a staged injury, or prepared it afterwards simply for
purposes of this litigation. Defendant also believes
claimant was a manipulative worker who avoided the hardest
assignments, and notes that he twice inquired of another
employee about that individual's workers' compensation
claim.
Defendant's arguments are rejected. Claimant was a
credible witness, and his version of events is accepted.
A review of claimant's diary convinces this observer
that it was neither begun in preparation for a staged
injury, nor prepared after the fact for litigation. The
diary was begun on September 24, 1990, and, in the early
stages, deals primarily with an apparent concern that Mr.
Dropinski had with respect to possible toxic exposure to
paint. If claimant had intended to stage an injury
(assuming that he herniated his disc at least seven weeks
before November 12), one wonders why he would have worked in
pain for seven weeks before staging the injury, and, if it
was faked, why he did not do so in front of numerous
witnesses. If the diary was prepared long after the injury
and only for this litigation, one questions why claimant
went back in time only seven weeks, rather than the six
months he was employed by defendant before the injury. If
the diary was prepared later, one must salute claimant's
Page 5
cleverness in concentrating so heavily on toxic exposure
issues for the first seven weeks, rather than commenting
upon how heavy or strenuous the painting work was. Also,
although the diary contains a few errors (it was not always
kept on a day-to-day basis), those errors are insignificant,
and many other details contained in the diary are apparently
accurate, or defendant could be counted on to point out the
contrary. The mere fact that claimant can spell some words
correctly and cannot spell other words is not so indicative
of deceit as defendant suggests. This observer knows of no
established correlation between spelling ability and
character.
There are other reasons to believe claimant's version
of events. There is not one shred of evidence in this
record showing that he suffered symptoms prior to the work
injury, or that he ever sought medical treatment for back or
bladder problems. If claimant suffered such problems before
taking employment with defendant, it is hard to believe that
he would have worked a strenuous job in pain for some six
months before springing a fake injury. In his deposition
taken September 16, 1992, claimant testified that at the
exact instant of the accident, foreman Paul Roden was right
behind him. It will be recalled that claimant further
testified that he was driven to his knees and forced to
crawl to a bench and was then unable to stand. Why was
Roden never called as a witness, if his recollection was
otherwise? If a party has the power to produce more
explicit and direct evidence than it actually produces, it
may fairly be presumed that the other evidence would lay
open deficiencies in that party's case. Crosser v. Iowa
Dep't of Public Safety, 240 N.W.2d 682 (Iowa 1976).
Also of note is the fact that claimant's bladder
results in an occasional leakage of 5 to 15 cubic
centimeters of urine. No evidence whatsoever indicates that
this problem preexisted the date of injury. Fifteen cubic
centimeters equals 15 ml. Official notice is hereby taken
under Iowa Code 17A.14(4) of the fact that one tablespoon
equals 14.786 ml. It is hereby determined that fairness to
the parties does not require an opportunity to contest that
fact. The writer believes that brief experimentation with
tablespoons of water and various combinations of fabric will
convince any fair minded observer that one tablespoon of
liquid will typically create a large and obvious wet spot.
Even now, claimant does not wear adult "diapers" for his
urinary incontinence. It is reasonable to suppose that had
claimant suffered episodes of leakage prior to the date of
injury, it would likely have been obvious to his co-workers.
If anyone with knowledge of this claim had recalled seeing
evidence of such leakage prior to November 19, 1990, it
would have been immediately obvious that the problem
preexisted the injury. Defendant has produced no proof of
such incidents of leakage, even though claimant worked for
six months prior to the injury, and commenced his diary
seven weeks before the injury. If we accept the hypothesis
that the diary was commenced in preparation for a faked
injury, we again must wonder why claimant would have waited
seven weeks knowing the risk of detection was great.
Further, it is noted that claimant did not mention urinary
Page 6
incontinence when he first saw Dr. McKinney; if he were
actually suffering from the condition at that time, there
would have been no reason whatsoever to conceal the fact.
The fact that symptoms of neurogenic bladder and sexual
dysfunction came on in such close proximity to the injury is
a strong indication that the injury actually occurred as
claimant has testified. It is so found.
CONCLUSIONS OF LAW
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
Claimant also 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).
As has been seen, claimant has established that he
sustained a traumatic back injury on November 12, 1990. He
has met his burden of proof on this issue. The primary
treating physicians, Drs. McKinney and de Souza, causally
connect his current disability to that incident. Claimant
also meets his burden of proof on that issue.
Entitlement to healing period benefits are not at
issue. Defendant disputes whether the injury should be
compensated by the industrial method, apparently claiming a
scheduled member injury, but one is completely at a loss to
understand the basis of this contention. Back injuries and
neurogenic bladder and sexual dysfunction injuries are not
listed in the schedule set forth in Iowa Code section 85.34.
Page 7
There should be no question whatsoever that any permanent
disability must be compensated by the industrial method.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
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).
Page 8
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.
Although claimant has developed an impressive list of
salable job skills, it is clear that the restrictions
suggested by Drs. McKinney, de Souza and Agarwal will leave
him unfit for the great majority of the work in which he has
previous experience. Painting, concrete work, construction
labor, wallpaper hanging, floor installation and grocery
stock work will clearly be greatly limited or foreclosed by
a 40-pound lifting restriction and recommendations against
bending and stooping.
Although claimant's motivation to return to work
shortly after the injury was low, it is noted that he has
since gone on in a highly motivated way to further his
education, even taking remedial math courses in preparation
for more formal instruction in electronics. Defendant
argues that claimant has no industrial disability because
potential employment in the field of electronics may be as
or more remunerative than his previous work. However, while
claimant's potential for retraining is an appropriate factor
in determining industrial disability, defendant is in no
position to take credit for claimant's post-injury
self-improvement, where it failed absolutely to contribute
to the expense.
Defendant also argues that claimant's failure to
undergo surgery promptly following the injury increased his
final disability, for which defendant claims it should not
be held liable. While an unreasonable refusal to undergo
appropriate medical care, thereby resulting in increased
disability, may, in a suitable case, result in a reduced
award, this is not a suitable case. It is perfectly
reasonable to attempt conservative therapy prior to
undergoing major back surgery. Indeed, claimant made this
decision with the acquiescence of both treating physicians.
Only Dr. Agarwal is apparently of the view that claimant
should have undergone immediate surgery, and claimant did
undergo surgery within a month of his evaluation by that
physician. Defendant's contention is without merit.
Another factor in determining industrial disability is
the failure of defendant to provide continued employment.
Considering then these factors in particular and the
record otherwise in general, it is held that claimant has
sustained an industrial disability equivalent to 35 percent
of the body as a whole, or 175 weeks. Pursuant to the
parties' stipulation, permanent disability benefits will
commence January 8, 1992.
Defendant further disputes the disputed medical
expenses set forth in exhibit A, an attachment to the
hearing report. Causal connection to the work injury, the
primary disputed issue, is established by the opinions of
Drs. McKinney and de Souza. Defendant has stipulated that
the expenses are causally connected to the medical condition
Page 9
upon which the claim of injury is based; therefore, the
expenses are compensable.
ORDER
THEREFORE IT IS ORDERED:
Defendant shall pay one hundred seventy-five (175)
weeks of permanent partial disability benefits at the rate
of two hundred thirty-five and 14/100 dollars ($235.14)
commencing January 8, 1992.
Defendant shall have credit against this award for
forty (40) weeks of permanent partial disability benefits
paid prior to hearing.
All accrued weekly benefits shall be paid in a lump sum
together with statutory interest.
Defendant shall pay the disputed medical expenses
totalling two thousand two hundred thirty and 20/100 dollars
($2,230.20.)
Costs are assessed to defendant.
Page 10
Signed and filed this ____ day of October, 1994.
______________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. William F. McGinn
Attorney at Law
Third Floor Executive Ste
Firstar Bank Bldg.
Council Bluffs, IA 51501
Mr. Roger L. Carter
Ms. Ruth Carter
Attorneys at Law
P.O. Box 5332
Sioux City, IA 51102
2906, 1803
Filed October 21, 1994
David R. Rasey
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DANIEL J. DROPINSKI,
Claimant,
vs.
File No. 967351
OWEN INDUSTRIES, INC., d/b/a
PAXTON VIERLING STEEL CO.,
A R B I T R A T I O N
Employer,
Self-Insured D E C I S I O N
Defendant.
___________________________________________________________
2906
Defense counsel was appointed custodian of an exhibit -
a metal pry bar - until this litigation is final.
1803
Claimant's slightly delayed decision to undergo surgery
in favor of conservative treatment - with the acquiescence
of both treating physicians - was not unreasonable and did
not call for reduction of industrial disability, even though
the delay may have reduced recovery from a neurogenic
bladder.