BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
JOHN P. METZ, III, :
:
Claimant, :
:
vs. :
: File Nos. 968319
METZ ENGINEERING, : 1045170
:
Employer, :
:
and :
: A R B I T R A T I O N
UNION INSURANCE COMPANY, :
: D E C I S I O N
Insurance Carrier, :
------------------------------
:
JOHN P. METZ, III, :
:
Claimant, :
:
vs. :
:
METZ ENGINEERING, :
:
Employer, :
:
and :
:
UNITED FIRE & CASUALTY :
COMPANY, :
:
Insurance Carrier, :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by
claimant, John Metz, against his employer, Metz Engineering
Company, and its insurance carriers, Union Insurance Company
and United Fire and Casualty Company. Mr. Metz seeks
workers' compensation benefits due to an alleged
occupational disease.
The case was brought on for a hearing before the
undersigned deputy industrial commissioner on December 9-10,
1993, in Des Moines, Iowa. The record in the case consists
of testimony of the claimant, I.R. Danse, M.D., Elaine
Panitz, M.D., and LuRie Farlie, a workers' compensation
adjuster for defendant Union Fire and Casualty Company;
Page 2
joint exhibits 1-21 and 23-37; claimant's exhibits 2 and 3;
defendant Union Insurance Company's exhibits 1, 2, 3, and
4a-p; and, defendant United Fire and Casualty Company's
exhibits A-O and R.
ISSUES
The parties submit the following issues for resolution:
1. Whether claimant sustained an injury which arose
out of and in the course of his employment. Although
claimant has alleged two dates, July 15, 1989 and August 23,
1991, he argues that his last injurious exposure could have
been as late as March 1992;
2. Whether claimant is entitled to temporary total or
healing period benefits, or permanent partial or total
disability benefits;
3. Whether claimant's workers' compensation rate
should be based on gross weekly earnings of $889.00 per
week, or a gross weekly wage of $250.00 per week. The
parties stipulated that claimant was married at the time of
the exposure(s) and is entitled to four exemptions; and,
4. Whether claimant is entitled to medical benefits as
governed by Iowa Code section 85.27.
Defendant Union Insurance Company argues that they did
not provide insurance coverage after May 22, 1990 and in the
event claimant is found to have sustained an occupational
disease, he did not become disabled until after their
coverage ended.
Defendant United Fire and Casualty argues that claimant
is not disabled as defined under Iowa Code section 85A.12.
Iowa Code section 85A.12 provides the following
information:
An employer shall not be liable for any
compensation for an occupational disease unless
such disease shall be due to the nature of an
employment in which the hazards of such disease
actually exist, and which hazards are
characteristic thereof and peculiar to the trade,
occupation, process, or employment, and such
disease actually arises out of the employment, and
unless disablement or death results...within one
year in case of any other occupational disease,
after the last injurious exposure to such disease
in such employment, or in case of death, unless
death follows continuous disability from such
disease commencing within the period above limited
for which compensation has been paid or awarded or
timely claim made as provided by this chapter and
results within seven years after such exposure.
Iowa Code section 85A.4 provides the definition of
"disablement" in the following manner:
Page 3
Disablement as that term is used in this
chapter is the event or condition where an
employee becomes actually incapacitated from
performing the employee's work or from earning
equal wages in other suitable employment because
of an occupational disease as defined in this
chapter in the last occupation in which such
employee is injuriously exposed to the hazards of
such disease.
FINDINGS OF FACT
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
Claimant, John Metz, III, was 43 years of age at the
time of the hearing. He is married and is the father of two
children, ages 13 and 14.
Mr. Metz is a 1969 high school graduate, and received
one year of advanced education in 1970. He earned a degree
in welding from a community college. He holds a state
issued certification in welding.
Claimant has worked as a welder and general laborer for
several employers, but started his own company in 1973. In
the beginning, claimant worked as a mechanic and welder and
operated a small machine shop, but by 1980, 90 percent of
the company's business involved providing support services
to the oil industry. These services included gasoline tank
renovation, repair and cleaning. The tanks held between
500,000 gallons and 1.2 million gallons of petroleum
products (gasoline, diesel fuels, etc.) and measured between
45 feet to 110 feet in diameter.
Cleaning the tanks required workers to enter the tank
through "manways" and use pumps and suction hoses to remove
the bituminous sediment water (BSW) left in the tanks.
Workers inside the tank wore protective clothing, and were
provided air packs to aid in breathing. Claimant worked as
a safety person for the workers inside the tanks. He stood
outside of the tank and watched from the manway to assure
that the workers were performing their job duties, and to
assure that workers were provided enough equipment,
including safety equipment. He also ran the vacuum.
Claimant stated that during his work as a safety person, he
wore a hat, leather gloves and leather boots. Cleaning the
tanks took one day to complete, and the company cleaned 12
to 15 tanks per year.
Metz Engineering also provided tank installation and
repair services. Claimant explained that his workers would
travel to tank farms, which consisted of earthen berms built
around the gas tanks measuring three to ten feet in height
built. Removal of the tanks was necessary to repair them,
and the workers would use the same basic techniques as they
used in cleaning the tanks, described above. Once the tanks
had been repaired, they were reinstalled in the berms. The
company worked on 10 to 12 tanks per year.
Page 4
Other services the company provided to oil companies
included valve replacements; emergency services, including
clean up for oil spills and leaks; inspection of oil tanks;
ground water reclamation and recovery; and renovation of
piping and oil lines. Claimant testified that exposure to
gasoline and diesel was an every day occurrence.
Oftentimes, the product would come into direct contact with
his skin while he was working on the pumps and varied in
amounts from splashes to showers of gasoline. This
happened two to three times per month. Inhalation of fumes
was also common, and the workers attempted to work upwind of
the product. Claimant stated that he frequently found
himself standing in dirt which was saturated in fuel and
further testified that the soles of his boots were sometimes
eaten away by the fuels. Likewise, claimant worked with
nuts, bolts and other parts and equipment which had been
doused in fuels.
Claimant's normal workday was from 7:00 a.m. to 5:00
p.m. with one hour allotted for lunch. He estimated that
between 1980 and 1991, he spent 95 percent of his workday in
oil terminals.
During 1989, claimant noticed he was feeling fatigued.
Initially, he saw his family physician at the Cogley Clinic.
These records, found at joint exhibit 1, are in no
particular order, but suffice it to say, claimant visited
Ralph Hopp, M.D., on a number of occasions complaining of
fatigue, joint and muscle pain, cold and flu symptoms, etc.
Many tests were taken, and one entry (the undersigned is
unable to read the full date, but the year is 1990) suggests
that claimant's low blood count was related to his exposure
to benzene and gasoline. (Jt. Ex. 1, p. 11) Claimant was
referred to the University of Nebraska Medical Center, where
in October of 1990, he was treated for neutropenia. (Jt.
Ex. 11) Julie Vose, M.D., in a report dated October 10,
1990, assessed claimant's condition as "neutropenia with
lymphocytosis of unknown etiology. Patient has benzene
exposure." (Jt. ex. 11) In January of 1991, claimant was
referred to Robert Warner, M.D., at the Heartland Oncology
and Hematology clinic in Council Bluffs, Iowa. Dr. Warner's
deposition is submitted as joint exhibit 14. He believes
claimant is suffering from myelodysplasia with
granulocytopenia, a condition which affects the bone marrow.
He is of the opinion that the condition was caused by
claimant's exposure to benzene. He believes the condition
is permanent, and that claimant is 75 to 80 percent
impaired. He bases this impairment rating on the AMA Guide
to the Evaluation of Permanent Impairment. He would
restrict most of claimant's activities, including driving,
walking, operating heavy equipment, climbing, pushing,
pulling and lifting. Dr. Warner recommends claimant be
allowed to rest as often as necessary during the day, and
alleviate any activities which would cause claimant to be
exposed to environmental toxins. Extreme hot or cold
temperatures should be avoided. (Jt. ex. 14)
In 1991, claimant felt even more fatigued, and felt his
ability to concentrate deteriorate. He began resting in his
Page 5
pickup while at the job sites, and began to cut back on his
workday. He began to feel pain in his arms, legs, back,
shoulders and buttocks. Standing caused burning sensations,
and he found it difficult to get into and out of his truck.
He began to experience night sweats and below normal
temperatures. Yet, he continued to go to the oil terminals
and visited all of the job sites and crews and worked as the
safety person if tank work was being performed.
Eventually, claimant was treated at the Mayo Clinic and
treated with a course of oral and intravenous antibiotics.
Dr. Warner, his primary physician at the University of
Nebraska Medical Center, performs CBC tests on a regular
basis to monitor claimant's blood. (Jt. Ex. 4)
In 1992, claimant was still "plodding along" at work,
but continued to employ more subcontractors on various jobs.
He relinquished more supervisory duties. In January of
1992, claimant was sent to Elaine Panitz, M.D., for a
medical evaluation. She advised him to stop all exposures
to hydrocarbons, and claimant stated that the company ended
all support services to oil companies in January or
February, 1992.
Claimant continued his treatment program with Dr.
Warner, and noticed that in March of 1992, his memory lapses
increased. In 1993, claimant has relinquished more control
of the business (which apparently is for sale) and currently
addresses his fatigue on a daily basis in that he must take
naps two times per day. He continues to suffer burning,
aching and pain in his legs, hip, back, arms and shoulders.
Each sensation varies in its intensity, but claimant is
physically more capable in the mornings than in the late
afternoons. Claimant stated that he has two headaches per
week since 1990, imbalance if he stands too quickly,
problems with depth perception, overall weakness and cold
sores. Claimant is unable to concentrate, which affects his
ability to dictate/write business correspondence and checks.
Currently, he is able to walk around various job sites for
only 20 minutes at a time. Claimant stated that if the
business is not sold by May 1, 1994, an auction will be held
in an effort to sell off the pieces. He stated that there
had been no new business ventures for approximately one
year. None of his physical problems existed prior to 1988.
Claimant owns a ranch where he is currently having a
house remodeled. He helps with the care provided to
livestock which includes 15 horses (some of which are draft
horses which are used in two-horse team competitions),
cattle, dogs and cats. Claimant estimated that he spends 10
minutes performing duties on the ranch. A typical day
includes visiting the ranch, eating lunch with friends,
visiting job sites, returning to the ranch, resting and
eating dinner with his family.
Claimant stated that his name or initials did not
always appear on invoices from the company, so the absence
of his initials did not necessarily mean that he did not
work on the job site on a particular day.
Page 6
Claimant also stated that he had lost weight in the
past year; had used coal tar shampoo to treat dermatitis on
rare occasions; and continues to own a driver's license and
a chauffeur's license. He admitted that the company had
worked on nine to ten cellular sites/facilities during the
past three years, but that he is not actively pursuing new
business. His personal income has increased in the last
three years, and a 6,000 square foot addition has been added
to his business facility.
Claimant was safety conscious, and instilled safety
precautions in the business, including adhering to OSHA
requirements; developing a written program addressing
hazards in the work place; and, implementing a new employee
training program. Protective/safety equipment was furnished
to the workers.
Elaine Panitz, M.D., testified on behalf of claimant.
She is certified in internal, preventative and special
occupational disease medicine. Her credentials are
impeccable. (Jt. ex. 16) She has reviewed between 30 and
40 cases of benzene exposure. Dr. Panitz provided education
to the undersigned concerning several technical and medical
points. Gas and jet fuels are hydrocarbon mixtures that
contain the chemical benzene. Gas contains the most
benzene, and vapor exposure to the same is most dangerous
although it can be absorbed through the skin. Gasoline
vapors can be broken down into carbons, and contains C4
(butane); C5 (pentane); C6 (benzene/hexene); C7 (talulene);
and C8 (zylene). The C6 is the most damaging to bone
marrow, and causes lymphatics, affects the nervous system
and can damage the liver and its functions. Exposure to
gasoline jet fuels can cause skin irritations
(dermatitis/foliculitis); respiratory inflammation;
neurologic damage (short and long term memory loss,
headaches, comas and chronic central nervous dysfunction
such as moodiness, depression and brain damage); and,
cirrhosis of the liver.
Dr. Panitz examined the claimant on January 8, 1992.
Her evaluation included a review of his medical history, as
well as a complete examination and various laboratory tests.
She determined that claimant was suffering nonmalignant
disorder of the bone marrow due to chronic solvent
poisoning. Specific diagnoses also included neutropenia
(low white blood cell count), mylodysplasia (abnormal
platelets), and neurosthenia (fatigue and joint pain).
Tests of claimant's white blood cells indicate that in 1991,
he exhibited signs of mild neutropenia; in 1992, he showed a
shift from mild to moderate neutropenia; and, in 1993, he
showed some cell count in the severe range. In other words,
there has been a progressive decline over the past two years
in the number of white blood cells in claimant's blood. As
a result, he is at risk for infections, inflammations and an
overall alteration of his immune system. He runs a higher
risk for developing more severe neutropenia. Dr. Panitz
determined within a reasonable degree of medical certainty
that claimant had sustained an occupational disease due to
exposures during his employment with Metz Engineering
Company. She stated that the inhalation and skin absorption
Page 7
of benzene caused the occupational diseases (chronic solvent
poisoning; neutropenia; neurosthenia; and mylodysplasia).
She believed claimant was permanently and totally disabled
from employment one year after the last injurious exposure,
which she stated was in "mid-1992." She believes that due
to his condition claimant can anticipate a shorter lifetime
and is at greater risk for diseases such as leukemia, bone
marrow failure and malignancy of lymphatics. She stated
that after May 1990 the exposures were more injurious. She
reviewed the medical bills incurred by claimant (in the
amount of $73,507.36) and was of the opinion that the
treatments and charges were reasonable and necessary to
treat claimant's occupational disease. She disagrees that
claimant's exposure to the fuels was trivial and further
disagrees that any drugs taken by claimant contributed to or
caused his condition.
Dr. Panitz admitted that 80 percent of the time,
claimant acted as a safety person while other workers
cleaned out the gasoline tanks. She believed claimant could
stand for one to two hours; travel as a driver or as a
passenger for 100 miles; run short distances; and lift at
least 20 pounds. She was aware that claimant had not yet
sold his business. Furthermore, her physical examination
and the history she secured from claimant showed no
consistent history of elevated temperature; no bacterial
infections; no enlargement of the liver or spleen; no
evidence of neuropathy (muscle disease); no myositis; and,
no motor neurological disease except delayed conduction
across the carpal tunnel in one of claimant's wrists. (Jt.
Ex. 13)
A report from Dr. Panitz, dated January 14, 1992,
provides the following information:
In my opinion, based on currently available
information, Mr. Metz is suffering from
myelodysplasia, a premalignant disorder of the
bone marrow, caused by repetitive occupational
exposures to benzene over the past 12 years.
Benzene exposures have resulted from heavy
inhalation and dermal contact with petroleum
hydrocarbon mixtures in his work as a maintenance
engineer for major oil companies.
Mr. Metz is at risk for the progression of
myelodysplasia, with its attendant hazards of
infection and bleeding. Unfortunately he is also
at risk for malignant transformation, including
leukemia, lymphoma, and other disorders of the
bone marrow and lymphatic system. Since the
damaging effects of benzene exposure are
cumulative, I have advised Mr. Metz that avoidance
of further benzene exposure is essential to
prevent any additional risk.
(Jt. Ex. 10, p. 1)
Ilene Danse, M.D., testified on behalf of defendant
United Fire and Casualty Company. Her credentials are
Page 8
impeccable. (Defendant United Fire and Casualty Exhibit O)
Dr. Danse provided a report, marked exhibit N,
consisting of 80 pages. She reviewed various medical
reports and records and performed a physical examination of
the claimant. While she indicates that claimant is
suffering from neutropenia, she goes on to explain that
"neutropenia is most commonly caused as a drug side effect,
often as an idiosyncratic reaction which is not predictably
dose or duration-related." Dr. Danse identified more than
70 medications that claimant takes or has taken in the past,
42 of which can cause neutropenia.
In her review of the medical documentation, she states
that Julie Vose, M.D., a physician associated with the
University of Nebraska Medical Center found no evidence of
neutropenia at the time of her examination, October 3, 1990.
(Tab 3 of Dr. Danse's report) In April and October of 1991,
claimant visited the Mayo Clinic for tests. Robert Phyliky,
M.D., was of the opinion that the cause of claimant's
neutropenia was unknown, and at that time, claimant was
advised that he did not have any infectious diseases. (Tab
6 of Dr. Danse's report)
According to Dr. Danse, a bone marrow test taken in
February of 1992 was unremarkable. (Tab 7 of Dr. Danse's
report) (This reading is in sharp disagreement with another
reading by Ilana Pachter, M.D., and Dr. Warner, who have
been treating claimant). A report from Donald Macfarlane,
M.D., Ph.D., indicates that after a thorough review of the
various medical records and reports generated from this
case, Dr. Macfarlane does not believe there is a causal
connection between claimant's neutropenia and his exposure
to benzene and that claimant is not disabled because of his
condition. Dr. Macfarlane goes on to state that the
symptoms about which claimant is complaining (i.e., fatigue
and aching pains) are not indicative of neutropenia.
Likewise, he stated that claimant had not had a serious
bacterial infection, and he did not expect claimant's
condition to worsen. (Tab 8 of Dr. Danse's report)
Dr. Danse stated that poisoning due to benzene exposure
was rare because people do not work with pure benzene
anymore. She offered that claimant's description of his
exposure to benzene revealed that appropriate safety
procedures were used. She advised that claimant discontinue
use of all medications in an effort to determine if the
neutropenia was drug-induced. She stated that the records
showed that when claimant was not taking any medications,
his blood was within normal limits. Furthermore, she did
not believe claimant was suffering from mylodysplasia. The
diagnosis of neurosthenia was also suspect to Dr. Danse, who
believed claimant was perhaps depressed. Neither did Dr.
Danse believe, or find that claimant was unable to work.
She recommended that claimant cease all drugs, especially
the IVs of gamma globulin and the frequent blood tests, to
determine if his neutropenia would disappear. She suggested
further investigation into his mental condition and possible
treatment of the same.
Page 9
Shirley Conibear, M.D., M.P.H., also served as an
expert for the case. She examined claimant on June 4, 1992,
and provided a report marked as Defendant United and Fire
Casualty exhibit I. She was also deposed for the case, and
the transcript of her testimony is marked as Defendant Union
Insurance Company exhibit 1. At this time, claimant was
still working as a supervisor for the company, but was
trying to avoid all contact with fumes from the gasoline or
fuels. After ordering a battery of tests and reviewing
results from the same, she was of the opinion that claimant
did not have any significant chromosomal abnormalities,
thereby ruling out leukemia.
Dr. Conibear concurred with the diagnosis of chronic
neutropenia, but disagreed that the condition was caused by
claimant's exposure to benzene. She, too, questioned
whether claimant's exposure was significant, and believed
that the neutropenia was an idiopathic (cause unknown)
condition. She opined that a definite diagnosis of
neutropenia was made in the fall of 1992. Myelodysplasia,
if a correct diagnosis (which Dr. Conibear is unwilling to
concede), was diagnosed in 1990 after the bone marrow test
and reading from Dr. Pachter were made. Her belief is
based, in part, on the overall effect exposure to benzene
has on the bone marrow, and its indiscriminate ability to
damage many cell types, not just white blood cells. In
other words, if claimant's condition had been caused by his
exposure to benzene, other cells (red and platelets) would
also be affected. Of the more than 100 blood smears that
have been taken from 1977 to June of 1993, Dr. Conibear did
not find any abnormalities in cell lines other than the
white cells. Likewise, claimant does not have chromosomal
abnormalities, which would indicate toxicity in the bone
marrow. Additionally, Dr. Conibear did not believe claimant
was suffering from peripheral neuropathy (damage to the
nerves in the arms or legs), nor with the diagnosis of
myelodysplasia (a form of leukemia); nor, that claimant had
suffered from any life-threatening infections. She did feel
that his condition was permanent, and that in the ensuing
years, the white blood cell counts will wax and wane, as
they had in the past several years. Upper respiratory
infections would be anticipated, but not severe.
The only treating physician associated with the case
who was able to determine that claimant's neutropenia (and
myelodysplasia, although not all of the health care
providers diagnosed myelodysplasia) was caused by exposure
to benzene was Dr. Warner. He bases his opinion, in part,
on the assumption that claimant encountered almost daily
exposure to the chemical. As noted in claimant's testimony,
this is simply not true. The most high-risk activities were
not performed daily, but on an average of 8 to 10 times per
year.
Most of the other physicians associated with the case
have deemed the cause of claimant's neutropenia as
idiopathic.
Page 10
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to address is whether claimant has
sustained an occupational disease.
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).
Iowa workers' compensation law distinguishes
occupational diseases from work injuries. An occupational
disease is a disease which arises out of and in the course
of the employee's employment. The disease must have a
direct causal connection with the employment and must follow
as a natural incident from injurious exposure occasioned by
the nature of the employment. While the disease need not be
foreseeable or expected, after its contraction, it must
appear to have had its origin in a risk connected with the
employment and to have resulted from that risk. A disease
which follows from a hazard to which an employee has or
would have been equally exposed outside of the occupation is
not a compensable occupational disease.
The claimant need meet only two basic requirements to
prove causation of an occupational disease. First, the
disease must be causally related to the exposure to the
harmful conditions in the field of employment. Second, the
harmful conditions must be more prevalent in the employment
than in everyday life or other occupations. Section 85A.8;
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
Where an employee is injuriously exposed to hazardous
conditions producing occupational disease while employed by
several successive employers, the employer where the
employee was last injuriously exposed is liable for the
total disability. Doerfer Div. of CCA v. Nicol, 359 N.W.2d
428 (Iowa 1984).
Claimant's business focused on providing various types
and forms of support services for oil companies. No doubt,
all of the workers were exposed to gasoline, jet fuels and
other petroleum products.
What is indeterminable is the extent of claimant's
exposure. According to claimant, he was sometimes doused in
gasoline, and on a regular basis stood in gasoline or fuel
while working on job sites. He wore protective clothing,
however, and typically performed the safety work on various
jobs. While claimant described himself as a "hands-on
manager," the undersigned is under the impression that he
provided more supervisory duties than actual labor while on
the job sites. This would be expected, since claimant was
the owner of the company.
It is recognized that claimant's treating physician has
stated that claimant's condition is related to his work and
exposure to benzene. Likewise, the expert hired by claimant
has also formed the requisite opinion that claimant's
condition is related to his work. Unlike Dr. Warner, who
Page 11
believes claimant is 75 to 80 percent disabled, Dr. Panitz
finds claimant totally disabled.
The undersigned was persuaded most by Dr. Danse. She
has extensive experience in working with oil companies and
is completely familiar with OSHA regulations regarding
exposure to benzene. Dr. Danse found fault with Dr Panitz'
reliance upon one particular study which focused on Turkish
workers and their exposure to benzene while working in a
shoe factory. Dr. Danse explained that the length intensity
of the exposure to these workers was much greater than that
exposure to which claimant had been exposed. While not the
only factor that the undersigned found persuasive, these are
two significant points that need to be addressed.
Additionally, while claimant testified that he
oftentimes was sprayed or doused with chemicals while
performing his job duties, the instances are not bourne out
by his evidence.
Even if claimant had shown by a preponderance of the
evidence that his disease was caused by his employment,
there is insufficient evidence to show that he is disabled,
as defined by the Code. The evidence shows that claimant
has continued to function as an officer of the company, and
as an on-site supervisor of some jobs. Additionally, he
continues to visit the remodeling project on his ranch. Dr.
Panitz advances that claimant is totally disabled, yet the
activity restrictions she places on claimant would allow him
to perform many jobs that would be or could be associated
with owning and operating a business.
As a result, it is determined that claimant's condition
is not causally related to his work. Claimant takes nothing
from these proceedings.
ORDER
THEREFORE, it is ordered:
That claimant take nothing from these proceedings.
That each party shall pay their costs in pursuing or
defending this claim.
Signed and filed this ____ day of February, 1994
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Daryl L Hecht
Attorney at Law
614 Pierce St
Page 12
P O Box 27
Sioux City IA 51102
Mr Michael W Manske
Mr Timothy J Cuddingan
Attorneys at Law
11605 Miracle Hills Dr Ste 300
Omaha NE 68154
Mr Joseph Cortese II
Attorney at Law
500 Liberty Bldg
Des Moines IA 50309
Mr Thomas M Plaza
Ms Judith Ann Higgs
Attorneys at Law
701 Pierce St Ste 200
P O Box 3086
Sioux City IA 51102
5-1100; 5-1108.30
Filed February 21, 1994
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
JOHN P. METZ, III, :
:
Claimant, :
:
vs. :
: File Nos. 968319
METZ ENGINEERING, : 1045170
:
Employer, :
:
and :
: A R B I T R A T I O N
UNION INSURANCE COMPANY, :
: D E C I S I O N
Insurance Carrier, :
------------------------------
:
JOHN P. METZ, III, :
:
Claimant, :
:
vs. :
:
METZ ENGINEERING, :
:
Employer, :
:
and :
:
UNITED FIRE & CASUALTY :
COMPANY, :
:
Insurance Carrier, :
------------------------------------------------------------
5-1100; 5-1108.30
Claimant failed to prove by a preponderance of the evidence
that he sustained an occupational disease.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
LORETTA STUBBS,
Claimant,
vs.
File No. 968523
MERCY HOSPITAL MEDICAL CENTER,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
RELIANCE NATIONAL INSURANCE,
Insurance Carrier,
Defendants.
_________________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Loretta Stubbs,
claimant, against Mercy Hospital Medical Center, employer, hereinafter
referred to as Mercy, and Reliance National Insurance Company,
insurance carrier, defendants, for workers' compensation benefits as a
result of an alleged injury on October 18, 1990. On March 30, 1995, a
hearing was held on claimant's petition and the matter was considered
fully submitted at the close of this hearing.
The parties have submitted a hearing report of contested issues and
stipulations which was approved and accepted as a part of the record of
this case at the time of hearing. The oral testimony and written
exhibits received during the hearing are set forth in the hearing
transcript.
According to the hearing report, the parties have stipulated to the
following matters:
1. On October 18, 1990, claimant received an injury arising out of and
in the course of employment with Mercy.
2. Claimant is not seeking additional healing period benefits at this
time.
3. The injury is a cause of some extent of permanent disability.
4. Permanent partial disability benefits shall begin as of July 20,
1992.
5. At the time of injury claimant's gross rate of weekly compensation
was $357.39; she was married; and, she was entitled to four exemptions.
Therefore, claimant's weekly rate of compensation is $237.42 according
to the industrial commissioner's published rate booklet for this
injury.
6. Medical benefits are not in dispute.
ISSUE
The only issue submitted by the parties for determination in this
proceeding is the nature and extent of claimant's permanent disability.
FINDINGS OF FACT
Having heard the testimony and considered all of the evidence, the
deputy industrial commissioner finds as follows:
A credibility finding is unnecessary to this decision as defendants did
not place claimant's credibility at issue during the hearing.
Claimant, Loretta Stubbs, has worked for Mercy since 1988 and continues
to do so at the present time. Initially, Loretta was performing duties
as a phlebotomist, drawing blood samples from patients. She has
continued to perform such duties on a part-time basis in the mornings
ever since, despite being transferred to other jobs. Along with this
phlebotomist duty, Loretta started to rotate between the chemistry and
hematology departments processing blood samples. In chemistry, she
would repeatedly "pop off" the rubber stoppers on the viles
and place them in centrifuges to separate blood components.
This required extensive use of her fingers and hands from 60-80
times an hour, primarily using her dominate right hand. In
hematology, Loretta still had to remove the lids on the vials
in preparing slides for microscopic observation but this work was
somewhat less repetitive. Eventually, Loretta was assigned to only the
chemistry department and that was when she began to have difficulty
with her arms and hands in October 1990.
The work injury herein involves bilateral carpal tunnel and cubital
tunnel syndromes in both wrists and elbows and an ulnar nerve
entrapment in the left elbow. All of these conditions are commonly
known as overuse syndromes from the repetitive use of Loretta's hands
and arms in her jobs at Mercy. The injury date is appropriate as the
date Loretta first left work for treatment.
Loretta initially sought treatment from David Berg, D.O., who treated
her with medication and braces. However, when conservative therapy
failed to alleviate the pain, she was referred to Ronald Bergman, D.O.,
and then underwent two surgeries; a left carpal and cubital tunnel
release in February 1991 and a right carpal and cubital tunnel release
in May 1991. Another physician, Timothy Kenney, M.D., performed a
transposition of the left ulnar nerve in June 1992. Beginning in 1994,
Loretta developed additional shoulder and neck pain and she
started treatment in the form of physical therapy and medication.
To date, the only diagnosis for this condition is degenerative disc
disease. Following a change in jobs at Mercy, Loretta's shoulder
and neck pain complaints have lessened.
Today, Loretta continues to complain of continuing shoulder and neck
pain. She also states that her upper left elbow continues to give her
problems. Loretta states that her bilateral wrist pain continues and
she continually drops many items. A vocational disability assessment
at a Mercy Pain Center facility demonstrated some loss of grip
strength. Dr. Bergman rates claimant's permanent impairment as four
percent of the hand on the left and two percent of the hand on the
right. Dr. Kenney opines that Loretta should have no impairment
from his procedure but recommended a third independent evaluation.
Keith Riggins, M.D., a board certified orthopedist, in an extensive
and well written report, evaluated claimant using the AMA guidelines,
converting each side into a body as a whole impairment and combined
the two values together arriving at a total body as a whole
impairment of 14 percent. This rating measured only the overuse
extremity problems. Given the quality of his report, his stated
use of the AMAguidelines and the methodology in converting the
bilateral extremity impairment, Dr. Riggins' evaluation is viewed
as the most credible.
Therefore, it is found that the work injury of October 18, 1990, is a
cause of a permanent impairment to each extremity which converts to a
14 percent permanent partial impairment to the body as a whole. As no
physician has found any objective evidence of neck or shoulder injury
and no physician has opined that the work injury was a cause of any
impairment from neck and shoulder complaints, it is found that
the work injury itself did not extent into the body as a whole.
Claimant today is back to work but her extremity problems caused by the
injury has resulted in a transfer to a secretarial job at Mercy.
Loretta states that she is getting along fairly well in this job and
Mercy has allowed accommodations for her current disability.
Consequent, it is found that claimant has not suffered a total loss of
earning capacity as a result of the work injury. The finding is
necessary given the law on bilateral arm injuries as described in the
conclusions of law section of this decision
CONCLUSIONS OF LAW
The claimant has shown that the work injury involved an overuse
syndrome and a permanent impairment to two upper extremities occurring
simultaneously. This is viewed by this agency to be caused from a
single accident. Fichter v. Griffin Pipe Products, File No. 941434
(App. April 29, 1993). Therefore, the extent of disability is measured
pursuant to Iowa Code section 85.34(2)(s). Measurement of disability
under this subsection is peculiar.
Normally, if the injury is to only an extremity, the amount of
disability is measured functionally as a percentage of loss of use
which is then multiplied by the maximum allowable number of weeks of
compensation allowed for that scheduled member set forth in Iowa Code
section 85.34(2)(a-r) to arrive at the permanent disability benefit
entitlement. These disabilities are termed a "scheduled member"
disabilities. Barton v. Nevada Poultry Company, 253 Iowa 285, 110
N.W.2d 660 (1961). "Loss of use" of a member is equivalent to
"loss" of the member. Moses v. National Union C.M. Co., 184
N.W. 746 (1922).
For all other injuries, including those to the body as a whole, the
degree of permanent disability is measured pursuant to Iowa Code
section 85.34(2)(u). Unlike scheduled member disabilities, the degree
of disability under this provision is not measured solely by the extent
of a functional impairment or loss of use of a body member. A
disability to the body as a whole or an "industrial disability" is a
loss of earning capacity resulting from the work injury. Diederich v.
Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).
Under Iowa Code section 85.34(2)(s), this agency must first determine
the extent of industrial disability or loss of earning capacity caused
by the two simultaneous injuries. If the injury caused a loss of
earning capacity that is less than total or 100 percent, then the
extent of the permanent disability is measured only functionally as a
percentage of loss of use for each extremity which is then translated
into a percentage of the body as a whole and combined together into one
body as a whole value. This was done by Dr. Riggins using the
AMA guidelines. If the industrial disability is total or there
is a total loss of earning capacity, then claimant is entitled
to permanent total disability benefits under Iowa Code section
85.34(3). Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (1983);
Burgett v. Man An So Corp., III Iowa Industrial Comm'r Report
38 (App. 1982).
In the case sub judice, it was found that claimant had not suffered a
total loss of earning capacity, consequently her entitlement to
permanent disability benefits is measured functionally. The rating by
Dr. Riggins was given the most weight as his rating methodology closely
tracked the law in these type of cases. Based upon the findings herein
of a combined 14 percent impairment to the body as a whole as a result
of the injury, claimant is entitled as a matter of law to 70 weeks of
permanent partial disability benefits under Iowa Code section
85.34(2)(s) which is 14 percent of the 500 weeks, the maximum
allowable for a simultaneous injury to two extremities in that subsection.
ORDER
1. Defendants shall pay to claimant seventy (70) weeks of permanent
partial disability benefits at a rate of two hundred thirty-seven and
42/l00 dollars ($237.42) per week from July 20, 1992.
2. Defendants shall pay accrued weekly benefits in a lump sum and
shall receive credit against this award for all benefits previously
paid.
3. Defendants shall pay interest on weekly benefits awarded herein as
set forth in Iowa Code section 85.30.
4. Defendants shall pay the costs of this action pursuant to rule 343
IAC 4.33, including reimbursement to claimant for any filing fee paid
in this matter.
5. Defendants shall file activity reports on the payment of this award
as requested by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of April, 1995.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert W. Pratt
Attorney at Law
6959 University
Des Moines IA 50311-1540
Mr. Lee P. Hook
Attorney at Law
STE 700 Des Moines Bldg
PO Box 9130
Des Moines IA 50306-9130
5-1803
Filed April 17, 1995
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LORETTA STUBBS,
Claimant,
vs.
File No. 968523
MERCY HOSPITAL MEDICAL CENTER,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
RELIANCE NATIONAL INSURANCE,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803
Nonprecedential, extent of disability case.
1600; 5-1803
Filed April 17, 1992
LARRY P. WALSHIRE
before the iowa industrial commissioner
____________________________________________________________
:
LARRY G. REEDY, :
: File Nos. 968752
Claimant, : 940673
:
vs. : A R B I T R A T I O N
:
WCI, LAUNDRY DIVISION, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
5-1803 Non-precedential, extent of disability case.
1600 - Misrepresentation Defense
Citing agency precedent, the asserted misrepresentation
defense under the Larson theory was rejected. Professor
Larson believes that misrepresentation of physical condition
in an employment application and/or pre-employment physical
should bar an employee from workers' compensation benefits
for injuries arising from that condition.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ROBERT L. MARTIN, :
:
Claimant, :
:
vs. : File No. 968768
: 876862
IOWA DEPARTMENT OF :
TRANSPORTATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by
claimant, Robert Martin, against the Department of
Transportation and the State of Iowa, as defendants. Mr.
Martin has filed two petitions and alleges work-related
injuries on February 19, 1988 and December 6, 1990.
The record in this case consists of testimony from the
claimant and his wife; joint exhibits 1 through 5; and,
claimant's exhibits 1, 2 and 3. Defendants objected to
claimant's exhibit 1, and the objection was taken under
advisement at the hearing. It is excluded from the evidence
due to non-compliance with both the hearing assignment order
and Iowa Rule of Civil Procedure 125(c).
After reviewing evidence submitted on the issue, the
undersigned deputy grants the state's motion to exclude
testimony and medical reports from Roger Marquardt.
FINDINGS OF FACT
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
Claimant, Robert Martin, was born on July 12, 1936, and
was 55 years of age at the time of the hearing.
In September of 1982, he began working for the Iowa
Department of Transportation as an equipment operator I.
His duties included snow removal during the winter months,
mowing, weeding, picking up litter, and controlling traffic
during the summer months.
Claimant first experienced back problems in March of
1985. As he was performing his duties, he began to dismount
from a truck and his left heel caught on the running board.
Page 2
Claimant fell and experienced back pain. He continued to
work, but sought medical treatment from William Boulden,
M.D. Dr. Boulden ordered a CT scan, prescribed pain pills
and advised claimant to stay off work. The results of the
CT scan showed that claimant had a large herniated disc at
L5-S1 on the left side with neuroforaminal stenosis.
Claimant was also diagnosed as having central cannicular
stenosis at the L4-L5 level. Claimant was treated with an
epidural steroid injection, and although Dr. Boulden
recommended surgery, claimant chose to undergo conservative
treatment (Joint Exhibits 1, pages 1-3; Joint Exhibit 2,
page 4).
In April of 1985, claimant underwent a second opinion,
performed by Jerome Bashara, M.D. He recommended
non-operative treatment and returned to work in mid-April of
1985 (Jt. Ex. 3, pp. 5-7). Claimant returned to work
without further problems.
In February of 1988, claimant reinjured his low back
and was off for several weeks. He returned to full duties
in March of 1988 (Jt. Ex. 2, p. 8).
In November of 1988, claimant again injured his back
while working for defendant. He was diagnosed as having a
musculigamentous strain of the cervical spine and an
exacerbation of the lumbar disc injury. He was off work for
several weeks, but returned to full duty work, although
Martin Rosenfeld, M.D., noted that claimant's job duties
could aggravate his back condition (Jt. Ex. 4, p. 13).
Claimant continued with his full duties for the Iowa
Department of Transportation until December 6, 1990, when he
once again injured his low back. On this date, as he was
cleaning a truck after his snow removal duties, claimant
fell as he tripped over a water hose while descending a
ladder. He felt pain in his leg and low back, but worked
the remainder of the day. The following day he felt
continued pain in both legs and low back, and was told by
the employer to seek medical treatment from the Methodist
emergency room. Claimant was referred to Dr. Bashara whom
he saw on December 18, 1990. Dr. Bashara diagnosed a
multiple level disc injury with bilateral sciatica, and
ordered an MRI. The results of the MRI showed a herniated
disc at the L3-4 level with bilateral stenosis, a distal
bulge at the L4-5 level with bilateral stenosis, and
degenerative changes from L3-4 through L4,5-S1 of the lumbar
spine. Claimant was placed in a lumbosacral corset, was
advised to undergo physical therapy three times a week for
three weeks, and was kept off of work (Jt. Ex. 1, pp. 10,
15-16).
From January through May of 1991, claimant continued to
treat with Dr. Bashara who administered several epidural
steroid injections and recommended continued physical
therapy. A myelogram was ordered, and the results showed
spinal stenosis with severe compression at the L3-4 and L4-5
level bilaterally. Claimant was discharged from Dr.
Bashara's care on May 14, 1991, and Dr. Bashara recommended
that claimant remain on sedentary activities (Jt. Ex. 1, pp.
Page 3
10-12).
On April 29, 1992, claimant underwent an examination by
Robert Hayne, M.D., who performed an examination and
assessed an impairment rating. The examination revealed
that claimant did not have any reflexes, painful straight
leg raising tests with limited mobility, and limited range
of motion of the lumbar spine. Dr. Hayne stated that
claimant had sustained a 7 percent "total disability." (Jt.
Ex. 1, p. 16)
Dr. Hayne was deposed for this case, and indicated that
claimant was restricted from repetitive forward bending,
twisting from side to side and lifting more than 30 pounds.
He also restricted claimant from riding in trucks. He
indicated that claimant had aggravated a preexisting
condition, and recommended surgery estimating that claimant
had a 60 percent chance of improvement. If surgery were
performed, claimant would be able to lift 40 pounds, but his
activities would still be restricted in the same manner (Jt.
Ex. 4).
Dr. Bashara was also deposed, and indicated that
claimant should perform no bending, stooping or twisting, no
heavy pushing or pulling and no prolonged sitting or
standing. He was of the opinion that due to claimant's
December 6, 1990 injury, he had sustained a 15 percent
impairment, and stated that claimant had a 5 percent
impairment due to preexisting condition (Jt. Ex. 5, pp. 16-
18).
Claimant has not returned to work since his accident in
December of 1990, and is currently collecting social
security disability benefits.
ANALYSIS AND CONCLUSIONS OF LAW
Although claimant filed two petitions, agency file
number 876862 (date of injury February 19, 1988), the
parties present no issues to be determined in this case.
Claimant was off of work for approximately two weeks and
four days, and was paid temporary total disability benefits
for this time. There is no indication that he sustained a
permanent injury which limited his ability to carry out his
regular duties. As a result, claimant's file number 876862
is dismissed.
The first issue to be addressed regarding claimant's
second claim is whether claimant is entitled to temporary
total or healing period benefits.
If claimant has sustained a permanent disability due to
his work-related injury on December 6, 1990, he is entitled
to healing period benefits during his recovery time. If
claimant has sustained a temporary disability, he is
entitled to temporary total disability benefits during his
recovery time.
Dr. Hayne is of the opinion that claimant had sustained
a 7 percent impairment based on objective findings during an
Page 4
examination on April 29, 1992. Additionally, Dr. Hayne
recommended that claimant restrict his work activities such
as no repetitious bending or twisting, and no lifting of
more than 30 pounds.
Dr. Bashara also rendered an opinion with respect to
claimant's disability, and stated that claimant had a 20
percent functional impairment. Of the 20 percent
impairment, Dr. Bashara factored 5 percent for a preexisting
injury dating back to 1985, specifically, the L5-S1 disc,
and the remaining 15 percent was related to the 1990
herniation of the L3-4 disc with pressure on the L5 nerve
root. There is no evidence that the preexisting 5 percent
impairment caused any disablement.
As a result, it is found that claimant did sustain a
permanent injury due to the work accident in December or
1990, and he is awarded healing period benefits for the time
he has been off of work.
The next issue to be addressed is the extent of
claimant's industrial disability.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
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.
Page 5
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).
At the time of the hearing, claimant was 55 years old.
He graduated from the eighth grade, and entered the marine
corp on his seventeenth birthday. Although he received
training for the military police, he did not complete the
preparatory school due to unsatisfactory grades. After
three years, claimant received an honorable discharge, and
three years later he returned to the army. He served for an
additional three years and was honorably discharged.
Subsequently, claimant earned a GED.
Most of claimant's work history has focused on labor
intensive positions. Claimant has worked in factories and
foundries, and has worked on construction sites.
Interspersed throughout his employment career have been jobs
driving cabs and trucks. Claimant began to work for the
Iowa Department of Transportation in 1982 and enjoyed eight
years of steady employment until his injury in December of
1990.
Apparently, claimant tried to undergo some vocational
rehabilitation, but when he applied for the state program he
was rejected due to the extent of his back injury and his
work history. They suggested that he apply for social
security disability benefits, which claimant received. Both
Drs. Bashara and Hayne have advised claimant that he should
not return to his employment with the Iowa Department of
Transportation. Claimant has not undertaken a meaningful
job search to find suitable employment.
However, Dr. Hayne is of the opinion that if claimant
underwent laminectomies with decompression of the contents
of the spinal canal at the third, fourth and fifth lumbar
interspaces, there would be a 60 percent chance that he
would be able to return to the type of work he had been
doing at the time of the injury. Dr. Hayne continued to
recommend against heavy work, and admitted that there was a
40 percent chance that claimant would not be able to engage
in a manual labor occupation.
Although the Department of Transportation has paid all
of the medical bills and has paid workers' compensation
benefits to the claimant since December 6, 1990, no effort
has been made to help claimant undertake any vocational
Page 6
rehabilitation, and the Department of Transportation has
been unwilling to offer claimant any type of position. It
is unfortunate that a department as large as the Department
of Transportation is unable to find a position which would
be suitable to claimant's restrictions. In fact, claimant
testified that when he sought employment with the Iowa
Department of Personnel, they told him that they did not
have any jobs available and stated "what do you want us to
do, create a job for you?"
Although Dr. Hayne recommended surgery and felt that
there was a 60 percent chance that claimant would be able to
return to the same occupation if he underwent the surgery,
claimant has refused to undergo the medical procedures.
As stated by the agency on numerous occasions, failure
to undergo surgery which carries some significant risk and
the outcome of which is not altogether certain does not
represent an unreasonable refusal of medical care. Arnaman
v. Mid-American Freight Lines, I-3 Iowa Industial
Commissioner Decisions 497 (1985); Barkdoll v. American
Freight System, Inc., Appeal Decision, June 28, 1988.
Dr. Hayne's opinion is interesting, in that he states
claimant would be able to return to the job he held when he
was injured, yet Dr. Hayne imposed the same limitations on
claimant regardless of whether he underwent surgery. In
fact, claimant's lifting restriction would be more severe if
he underwent surgery.
After considering all of the factors that comprise an
industrial disability, it is found that claimant has
sustained a 75 percent industrial disability.
ORDER
THEREFORE, it is ordered:
That defendants shall pay claimant permanent partial
disability benefits for three hundred seventy-five (375)
weeks at the workers' compensation rate of two hundred
fifty-seven and 16/100 dollars ($257.16) per week beginning
April 19, 1992.
That defendants shall pay accrued weekly benefits in a
lump sum.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendants are awarded credit for benefits
previously paid.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Page 7
Signed and filed this ____ day of July, 1992.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Arthur C Hedberg
Attorney at Law
840 Fifth Ave
Des Moines IA 50309
Mr Robert P Ewald
Assistant Attorney General
Department of Transportation
800 Lincoln Way
Ames IA 50010
Mr Noel C Hindt
Attorney at Law
Department of Transportation
800 Lincoln Way
Ames IA 50010
5-1803
Filed July 14, 1992
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ROBERT L. MARTIN, :
:
Claimant, :
:
vs. : File No. 968768
: 876862
IOWA DEPARTMENT OF :
TRANSPORTATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
Claimant, 55 years of age, sustained a work injury to his
low back. He had sustained several other injuries to his
back, but had always returned to work with the Iowa
Department of Transportation. After the latest episode,
claimant's treating physician and an evaluating doctor told
claimant he would be unable to return to his prior jobs.
The employer did not offer suitable employment.
In order to correct claimant's physical problems,
laminectomies to three discs were recommended. Claimant
refused, and said refusal seemed reasonable due to
physician's opinion that claimant's work restrictions would
be the same with or without the surgery.
3001; 5-1803
Filed July 12, 1994
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
STEVE MESSMORE,
File No. 968778
Claimant,
M E M O R A N D U M
vs.
O F D E C I S I O N
MEL INC (HOLIDAY INN),
O N E X P E D I T E D
Employer,
P R O C E E D I N G
and
GENERAL CASUALTY,
Insurance Carrier,
Defendants.
___________________________________________________________
3001
Gross rate includes market value of room and board given to
employee, not what is charged to employees or members of the
public. Room at hotel valued at customary apartment rent in
geographical area of $400 per month.
5-1803
Non-precedential, extent of disability case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
STEVE MESSMORE,
File No. 968778
Claimant,
M E M O R A N D U M
vs.
O F D E C I S I O N
MEL INC (HOLIDAY INN),
O N E X P E D I T E D
Employer,
P R O C E E D I N G
and
GENERAL CASUALTY,
Insurance Carrier,
Defendants.
___________________________________________________________
An original notice and petition invoking expedited
procedures under 343 IAC 4.44 was filed on April 28, 1994
and a telephonic hearing was conducted on July 11, 1994.
The issues presented were the extent of claimant's
entitlement to healing period benefits, permanent disability
benefits and rate of compensation along with interest.
A detailed decision was dictated into the record on the day
of the hearing and will not be reproduced in typewritten
form unless there is an appeal by the parties at which time
the procedures under the administrative code will be
followed. Any rights of appeal will run from the date of
the decision dictated into the record, July 11, 1994. This
memorandum is solely for the purpose of the agency file.
The evidence consisted of two joint exhibits and the
testimony of claimant and one defense witness. After
consideration of all evidence and argument of counsel, the
deputy ordered the defendants to pay additional healing
period benefits at a higher rate of compensation than it had
voluntarily paid. However, no additional permanent
disability benefits were awarded. Costs were assessed
against the defendants. Credit was given for weekly
benefits already paid.
Signed and filed this ____ day of July, 1994.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Page 2
Copies To:
Mr. Thomas M. Wertz
Attorney at Law
4089 21st Ave SW STE 114
Cedar Rapids IA 52404
Ms. Anne L. Clark
Attorney at Law
Terrace CTR STE 111
2700 Grand Ave
Des Moines IA 50312-5215
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JAMES BOWDEN, :
:
Claimant, :
:
vs. :
: File No. 968795
STONE CONTAINER CORPORATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
KEMPER INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
Claimant, James Bowden, seeks benefits under the Iowa
Workers' Compensation Act upon his petition in arbitration
against defendant, Stone Container Corporation, and its
insurance carrier, Kemper Insurance Company. Mr. Bowden
asserts that he sustained a psychological injury arising out
of and in the course of his employment on October 30, 1990.
This cause came on for hearing in Burlington, Iowa on
September 29, 1992. Testimony was received from claimant,
Cary LeMaster, Dan Bursell and Jerry Boecker. Joint
exhibits 1-16 were received into evidence.
ISSUES
The parties have stipulated that an employment
relationship existed between claimant and employer at the
time of the alleged injury, to the rate of compensation
($307.67 per week) and to defendants' entitlement to credit
for sick pay/disability benefits under Iowa Code section
85.38(2).
During the course of hearing, claimant withdrew his
claim for permanent partial disability.
Remaining issues presented for resolution include:
1. Whether claimant sustained an injury arising out of
and in the course of his employment on October 30, 1990;
2. Whether the alleged injury caused temporary
disability;
3. The extent of temporary disability, if any;
4. Entitlement to medical benefits; and
Page 2
5. Whether penalty benefits should be assessed.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
James Bowden, 30 years of age at hearing, is a
sel-described short tempered and prideful individual, one
prone to frustration and anger at perceived slights.
Mr. Bowden has been employed by Stone Container
Corporation, a manufacturer of cardboard boxes, for some six
years. During this time, he developed frustration over a
number of minor issues and filed a number of grievances.
Some, he now concedes, were "piddly" in nature. Claimant
conceded also an inclination to verbalize and display his
anger at various grievance hearings.
General supervisor, Cary LeMaster, also pointed out
that claimant was reputed to have a fiery temper and was
generally confrontational in his dealings with management
and fellow workers. Plant manager Dan Bursell testified
that claimant had a violent temper, such that he himself was
apprehensive of potential violence. Plant supervisor, Jerry
Boecker, noted that claimant had threatened him (the nature
of the threat was not disclosed) when a crew, including
claimant, was ordered to re-stack a number of cardboard
boxes.
Claimant became overwrought during the course of a
grievance procedure in October 1990. As a result, the
employer referred him for psychiatric evaluation to S.
Kantamneni, M.D., a psychiatrist, and Patrick Ewing, a
clinical psychologist associated with Dr. Kantamneni.
As a result of this evaluation, claimant was taken off
work for two weeks, being released effective November 12,
1990. When claimant attempted to return to work, he was
refused admission to the plant for failure to bring a
written release (claimant did not know one was required).
He was suspended for one day as a result of this, then
discharged from employment, although the dispute was
eventually resolved and claimant rehired. Mr. Bowden now
believes he has his temper under control and the employment
relationship seems much less confrontational in nature.
Dr. Kantamneni reached a diagnosis of adjustment
disorder in his letter of November 1, 1990:
Essentially this involves a stronger reaction than
might be expected in response to a psycho-social
stresser. In order to qualify for this diagnosis,
the reaction must cause an impairment in
occupational functioning or in social activities
or relationships with others. The psycho-social
stresser in your case is job stress.
(Exhibit 2, Page 7).
Dr. Kantamneni and Mr. Ewing wrote later (January 28,
Page 3
1991) that Mr. Bowden's condition had manifested itself by
reason of anger and anxieties stemming directly from his
concerns at work. Mr. Ewing's chart notes refer on multiple
occasions to claimant's "irrational" beliefs, "undoubtedly
related to his difficulty at work."
When cross-examined as to what treatment it was that he
felt was unfair, claimant pointed to two specific concerns.
On one occasion, he had made an error in "running" a number
of cardboard boxes, and was personally offended when Dan
Bursell hung a sample of the error over the machine.
Bursell pointed out that he done so as a way of reminding
the crew not to make the same mistake again.
Mr. Bowden also complains that Bursell criticized him
behind his back to other employees, although he agreed that
other workers intentionally told him stories just to get him
"riled up." Bursell denied ever criticizing claimant to
other employees, a credible denial.
CONCLUSIONS OF LAW
The parties dispute whether claimant sustained an
injury arising out of and in the course of her employment.
This is his burden to prove. McDowell v. Town of
Clarksville, 241 N.W.2d 904 (Iowa 1976).
The standard for determining whether a mental injury
arose out of and in the course of employment was recently
discussed in Ohnemus v. John Deere Davenport Works, File No.
816947 (App. Decn., February 26, 1990) and Kelley v.
Sheffield Care Center, File No. 872737 (App. Decn., October
31, 1991) as follows:
"In order to prevail claimant must prove that
he suffered a non-traumatically caused mental
injury that arose out of and in the course of his
employment. This matter deals with what is
referred to as a mental-mental injury and does not
deal with a mental condition caused by physical
trauma or physical condition caused by mental
stimulus. The supreme court in Schreckengast v.
Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985),
recognized that issues of causation can involve
either causation in fact or legal causation. As
stated in footnote 3 at 369 N.W.2d 810:
We have recognized that in both civil and
criminal actions causation in fact involves
whether a particular event in fact caused
certain consequences to occur. Legal causation
presents a question of whether the policy of
the law will extend responsibility to those
consequences which have in fact been produced
by that event. State v. Marti, 290 N.W.2d 570,
584-85 (Iowa 1980). Causation in fact presents
an issue of fact while legal causation presents
an issue of law. Id.
"That language was the basis of the language in
Page 4
Desgranges v. Dept of Human Services, (Appeal
Decision, August 19, 1988) which discussed that
there must be both medical and legal causation for
a nontraumatic mental injury to arise out of and
in the course of employment. While Desgranges
used the term medical causation the concept
involved was factual causation. Therefore, in
this matter it is necessary for two issues to be
resolved before finding an injury arising out of
and in the course of employment - factual and
legal causation. Proving the factual existence of
an injury may be accomplished by either expert
testimony or nonexpert testimony.
....
"Not only must claimant prove that his work was
the factual cause of his mental injury, claimant
must also prove that the legal cause of his injury
was his work. In order to prove this legal
causation claimant must prove that his temporary
mental condition "resulted from a situation of
greater dimensions than the day to day mental
stresses and tensions which all employees must
experience." Swiss Colony v. Department of ICAR,
240 N.W.2d 128, 130 (Wisc. 1976)."
Kelley v. Sheffield Care Center, File No. 872737 (App.
Decn., October 31, 1991).
Dr. Kantamneni and Mr. Ewing are of the view that the
time claimant lost from work was due to anger from perceived
work stresses. There is no indication that the underlying
personality disorder was caused by work, and claimant agrees
that he has always been hot-tempered. Claimant has
established that "stresses" and problems at work, as
perceived by him bear a causal relationship to his being
taken off work for two weeks for psychological reasons.
This meets the "causation in fact" test.
But, this only points up the importance of the
"causation in law" test, since claimant's perceptions are
not necessary reliable. The record does not show that
claimant's temporary mental condition "resulted from a
situation of greater dimensions than the day to day mental
stresses and tensions which all employees must experience."
Claimant has spoken of a gradual build-up of tensions and
frustrations, but has not presented evidence as to
specifics, except two: the posting of a defective product
and hearsay allegations that the plant supervisor criticized
him behind his back. The employer surely had a good reason
to post the defective product, so as to prevent future
similar mistakes. This was not directed at claimant
personally, although, given his general attitude, he
perceived it as such. His concern that Bursell criticized
him behind his back was ill-founded, as Bursell convincingly
explained that he did no such thing. Claimant himself
admits that fellow workers would tell him stories just to
get him "riled up."
Page 5
Because claimant has failed to establish "causation in
law" of his temporary disability, the case must be resolved
in favor of defendants. Other issues are thereby rendered
moot.
ORDER
THEREFORE, IT IS ORDERED:
Claimant shall take nothing from these proceedings.
The costs of this action are assessed to claimant
pursuant to rule 343 IAC 4.33.
Signed and filed this ____ day of October, 1992.
________________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr James P Hoffman
Attorney at Law
Middle Road
PO Box 1087
Keokuk Iowa 52632-1087
Ms Vicki L Seeck
Attorney at Law
600 Union Arcade Building
111 East Third Street
Davenport Iowa 52801-1596
2204
Filed October 5, 1992
DAVID R. RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JAMES BOWDEN,
Claimant,
vs.
File No. 968795
STONE CONTAINER CORPORATION,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
KEMPER INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
2204
Wisconsin rule was applied in "mental/mental" stress case.
Claimant proved "causation in fact" in that work stresses
were causative of his emotional outburst, but failed to
establish "causation in law" since his perceptions were not
reliable and work conditions were not of greater dimension
than the day to day stresses which all employees experience.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
WILLIAM C. GEIST, :
:
Claimant, :
:
vs. :
: File No. 968840
PAYLESS CASHWAYS, :
A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CONTINENTAL LOSS ADJUSTING, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a contested case proceeding under Iowa Code
chapter 17A upon a petition in arbitration filed by claimant
William C. Geist against his former employer, Payless
Cashways, and its insurance carrier, Continental Loss
Adjusting. Mr. Geist sustained a work injury on October 21,
1990, and now seeks further benefits under the Iowa Workers'
Compensation Act. Defendants agree that claimant sustained
an abdominal injury, but deny Mr. Geist's claim that he also
injured his back at the same time.
This case was heard and fully submitted in Davenport,
Iowa on June 14, 1994. The record consists of defendants'
exhibits A-P, claimant's exhibits 6, 10 and 11 and the
testimony of claimant and Scott Forbes. Deposition
testimony of Daniel Tully and Dr. Harold Miller is included
among the exhibits.
ISSUES
The parties have stipulated to the following:
1. Claimant sustained injury arising out of
and in the course of employment on October
21, 1990;
2. The injury caused temporary disability;
3. The correct rate of weekly compensation
is $173.52;
4. Affirmative defenses have not been
raised;
5. Although disputed, medical providers
would testify to the reasonableness of fees
and treatment and defendants offer no
Page 2
contrary evidence; and,
6. Defendants have voluntarly paid 1.571
weeks of compensation at the rate of
$156.44.
Issues presented for resolution include:
1. Whether the injury caused permanent
disability;
2. The extent of temporary total disability
or healing period;
3. The nature, extent and commencement date
of permanent disability, if any; and,
4. Entitlement to medical benefits,
including whether disputed expenses are
causally connected to the work injury.
Defendants also sought to defend against disputed
medical benefits on the basis that the same were not
authorized. The authorization defense was ruled invalid
because defendants have denied liability on the claim,
thereby forfeiting the right to control the course of
treatment.
This claim involves a discrete lifting injury sustained
on October 21, 1991. Mr. Geist was also involved in a
similar incident on October 19. It was ruled at hearing
that only the October 21 injury is properly at issue in this
proceeding.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
William Geist, 35 years of age at hearing, was employed
by Payless Cashways (a lumber and building materials
supplier) as a delivery driver in October 1990. Many of the
delivery items were characteristically heavy and bulky, such
as lumber, stoves, sinks, roofing materials and the like.
Claimant had previously worked in the warehouse, filling
orders and generally assisting customers.
On October 19, 1990, claimant delivered a wood burning
stove to a customer who assisted him in unloading the device
from his truck. In so doing, the customer partially lost
his grip, putting an increased strain on claimant. Mr.
Geist described that by the end of this day, he felt like he
had a "pinched nerve" in the back, so he visited Dr. Lee
Nelson, apparently a chiropractor. Dr. Nelson's notes refer
to moderate lumbosacral pain with findings of decreased
range of motion, tenderness and "muscle bundles" (an
expression unfamiliar to this reader). Claimant was treated
with a spinal adjustment and advised to return in one week.
As previously noted, any claim relating to this incident is
not properly at issue in this proceeding.
Page 3
On October 21, claimant was involved in a similar
incident while delivering a second woodburning stove to a
customer known as Daniel Tully. Mr. Tully testified by
deposition on November 12, 1993. The two men attempted to
move the heavy stove into Tully's house, and had reached the
porch; while putting the stove down, Tully partially lost
his grip:
Q. Was there a point there, then, when
he was holding the entire weight of the
stove because your end had slipped from your
hands?
A. I may remember it more favorably to
myself. It's like as it was slipping from
my hands I may still have been in touch with
it, but, you know, as it was going to the
ground he was still trying to hold it up.
Q. All right.
A. Hold up his end.
Q. And you were supporting as much of
your end that --
A. Yeah, it was falling from my hands.
(Tully Deposition, Pages 8-9)
Claimant was seen on October 22, October 29 and
November 5 by three separate physicians at a medical clinic
known as Express Care North - Urgent Care Center. The
undersigned thinks the records of those three visits to be
the most significant evidence in this record.
On October 22, claimant was seen by Dr. Marilyn
Lensing. The only symptoms noted were of tenderness to the
epigastric abdominal wall (an area reaching from slightly
above the navel to the sternum). The history "as described
by patient" is recorded as "injured abdominal wall while
helping lift 500 lb. stove." No record whatsoever was made
of low back complaints. Dr. Lensing diagnosed abdominal
wall muscle strain and released claimant to return to
limited duty work with lifting, bending and stooping
restrictions.
On October 29, claimant was seen by Dr. Roberts. Chart
notes reflect that claimant returned for a recheck of
abdominal wall strain and was quoted as feeling like he
would vomit every day. No back complaints were charted.
Dr. Roberts diagnosed abdominal muscle wall strain and again
released claimant to limited duty work with restrictions.
Claimant returned to Express Care North for the last
time on November 5. This time, he was seen by Harold W.
Miller, M.D., a board certified family practice specialist
who testified by deposition on November 12, 1993.
Notes prepared by a registered nurse on this visit show
Page 4
that claimant returned for a recheck of abdominal wall
strain and directly quoted claimant: "Has no pain." The
nurse also charted no reports of nausea. According to Dr.
Miller, the use of quotation marks in such a chart note is
intended to closely reflect claimant's actual words. Dr.
Miller found no localized tenderness or ecchymosis of the
abdominal wall, reported that claimant's back was non-tender
to percussion, and returned Mr. Geist to full work activity
without restriction.
The first report of injury filed in this matter show
that claimant was off work commencing October 22 and that he
returned to work on November 5, 1990. The form 2A also
filed in this case reflects payment of temporary total
disability benefits consistent with those dates. Official
notice is hereby taken of the first report of injury and the
form 2A. It is determined under Iowa Code section 17A.14(4)
that fairness to the parties does not require an opportunity
to contest these facts.
According to Dr. Miller, the incident in which claimant
was injured was capable of causing a low back injury.
However, Dr. Miller also noted that his staff is trained to
routinely require whether other parts of the body hurt,
beyond those complained of. He did not believe that
Ibuprofen (which claimant had been taking for his abdominal
wall complaints) would mask any significant back pain and
believed it was likely that someone who had a back injury
would complain of back pain two weeks after that injury. If
complaints of back pain had been made, on any of claimant's
three visits between October 22 and November 5, this
observer has little doubt but that they would have been
properly recorded. On November 5, Dr. Miller even percussed
claimant's back, largely because this was not the first
occasion claimant presented with a work injury. He
testified:
A. The usual mechanism would be that I
would percuss the back in three -- in a
situation such as this, percuss the back in
three or four locations and ask the patient
whether they noticed any pain.
Q. All right.
A. And if they said "no," the back is
nontender; that would be my usual procedure
under those circumstances.
(Miller Deposition, Page 15)
Here, it is worth noting that claimant has given
subsequent histories that very much emphasize not only back
pain, but radicular symptoms. These histories, by the way,
come much later in time and are almost certainly influenced
by this very litigation (claimant's petition was filed on
September 16, 1991). For example, the history taken by
evaluating neurosurgeon Richard Roski on December 14, 1992
reflect:
Page 5
He was working at Payless Cashway two years
ago and was unloading a woodburner. He had
this at about waist level with another
employee who dropped his side. This caused
him to carry the weight but at the same time
he was pulled forward. He immediately had
low back pain that radiated into the abdomen
on the right side. He has continued to have
constant pain in the center and to the right
in the low back.
Dr. Robert J. Chesser, on September 2, 1992, records a
history of claimant developing back and lower extremity pain
in October 1990 which had been steadily increasing since
that time. Dr. B. E. Krysztofiak, a consulting physical
medicine and rehabilitation specialist, reported on February
16, 1993 a history of: "He apparently developed acute pain
in the lower back while unloading a wood stove, since then
the patient has been experiencing continuing pain in the
lower back more on the right side than on the left side as
previously reported."
It is absolutely unbelievable that complaints of an
acute back injury with radiating symptoms would not have
been charted during claimant's three visits to Express Care
North. It is found as fact that claimant did not experience
back or radicular symptoms between October 22 and November
5, 1990, when he was under active treatment at Express Care
North. As of October 5, claimant reported having no pain, a
condition absolutely contrary to the inaccurate histories
given to later physicians.
As it happens, claimant did subsequently develop some
back pain, although with no apparent association to the
subject work injury. The extent of claimant's symptoms and
objective findings are disputed by different medical
experts, but it is unnecessary to resolve those issues
because claimant fails to persuade that he injured his back
on October 21, 1990.
On November 17, 1990, nearly a month later, claimant
was seen by a chiropractor, Robert W. Duncalf, with a
complaint of lower back pain. Dr. Duncalf has written that:
"Our records do not show that it was a work related injury."
When claimant was later seen (March 19, 1991) at the
University of Iowa Hospitals and Clinics, chart notes
reflect a history of lower back pain beginning in late
November 1990, a pre-litigation report consistent with a
November injury, but inconsistent with Mr. Geist's claim
here.
Dr. Miller has further opined as follows:
Q. And when you saw him on November 5th,
you released him to return to work without
restriction?
A. That's true.
Q. Okay. Does that mean in your mind
Page 6
that any condition for which he was being
seen at the clinic had resolved?
A. Yes.
(Miller Deposition, Pages 25-26)
CONCLUSIONS OF LAW
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).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
The parties have stipulated that claimant sustained
injury arising out of and in the course of employment.
Defendants agree that claimant sustained an abdominal wall
injury, but deny that claimant injured his back. Based on
the records of Express Care North and the opinion of Dr.
Miller, it is concluded that claimant failed to meet his
burden of proof in establishing that subsequent development
of back symptomatology is causally related to the abdominal
wall injury of October 21, 1990. The physicians who have
supported a causal nexus have done so on the basis of
inaccurate histories. Claimant did not suffer or complain
of back pain during his treatment at Express Care North.
The abdominal injury has not been shown to have caused
permanent disability. All impairment ratings and
recommended restrictions relate to claimant's back
condition, not the abdominal wall condition which had
resolved by November 5, 1990. Accordingly, claimant is not
entitled to an award of permanent disability benefits.
However, claimant was off work from October 22 through
November 4, 1990, a total of 14 days. Because claimant did
not sustain a permanent injury, this disability must be
Page 7
compensated as temporary total disability under Iowa Code
section 85.32 and 85.33, not as healing period under section
85.34(1). Section 85.32 provides:
Except as to injuries resulting in
permanent partial disability, compensation
shall begin on the fourth day of disability
after the injury.
If the period of incapacity extends
beyond the fourteenth day following the date
of injury, then the compensation due during
the third week shall be increased by adding
thereto an amount equal to three days of
compensation.
In this case, claimant's period of incapacity was of
fourteen days duration, but extended to the fifteenth day
following the date of injury. The section is keyed to the
date of injury, not the first day of disability.
Accordingly, claimant is entitled to fourteen days of
temporary total disability benefits (2 weeks) at the
stipulated compensation rate.
ORDER
THEREFORE, IT IS ORDERED:
Defendants shall pay claimant two (2) weeks of
temporary total disability benefits at the rate of one
hundred seventy-three and 52/100 dollars ($173.52) per week
commencing October 22, 1991.
Defendants shall have credit for all voluntary payments
of benefits previously made.
Accrued benefits shall be paid in a lump sum together
with statutory interest.
Each party shall be responsible for its own costs.
Signed and filed this ____ day of August, 1994.
________________________________
DAVID RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr A Fred Berger
Attorney at Law
900 Kahl Building
Davenport Iowa 52801
Ms Deborah A Dubik
Mr Craig A Levien
Page 8
Attorneys at Law
600 Union Arcade Building
111 East Third Street
Davenport Iowa 52801-1596
1801
Filed August 19, 1994
DAVID RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
WILLIAM C. GEIST,
Claimant,
vs.
File No. 968840
PAYLESS CASHWAYS,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
CONTINENTAL LOSS ADJUSTING,
Insurance Carrier,
Defendants.
___________________________________________________________
1801
Claimant sustained temporary disability as the result of an
abdominal wall injury. He was off work for fourteen days
commencing the day following injury. However, under section
85.32, compensation during the third week is increased by
adding the three-day waiting period where "the period of
incapacity extends beyond the fourteenth day following the
date of injury." Even though claimant was only disabled for
fourteen days, the final day was the fifteenth day from the
date of injury. The section is keyed to the date of injury,
not the first day of disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
BONNIE ENGALDO,
Claimant,
vs.
File No. 968978
IPSCO STEEL, INC.,
A P P E A L
Employer,
D E C I S I O N
and
CIGNA,
Insurance Carrier,
Defendants.
____________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal. The decision of the deputy
filed January 4, 1994 is affirmed and is adopted as the
final agency action in this case with the following
additional analysis:
The presence of Mr. Havens in the courtroom and his failure
to testify does not carry any significance. His presence
and failure to testify have not been relied on in this
decision. However, the claimant's description of her work
conditions and her description of the employer's conduct are
in the record and are unrebutted.
The fact that Dr. Robb altered his opinion on the extent of
claimant's disability is only part of the medical evidence.
In addition, claimant has offered a credible explanation for
the reference to prior low back problems. In addition, Dr.
Robb did not alter his opinion on causal connection.
Contrary to the employer's assertion, an employer's refusal
to rehire an injured worker is a factor to be considered in
assessing industrial disability. McSpadden v. Big Ben Coal
Co., 288 N.W.2d 181 (Iowa 1980). In this case, the
employer's failure to rehire the claimant in a position
consistent with her restrictions as well as the employer's
failure to honor those restrictions after becoming aware of
them are considered in assessing claimant's industrial
disability.
Claimant is able to perform some recognized jobs in the job
market. Claimant herself indicated a desire to return to
factory work. Claimant is not an odd-lot employee.
Claimant and defendants shall share equally the costs of the
Page 2
appeal including transcription of the hearing. Defendants
shall pay all other costs.
Signed and filed this ____ day of June, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. John M. Bickel
Attorney at Law
P.O. Box 2107
Cedar Rapids, Iowa 52406
Mr. James M. Hood
Attorney at Law
302 Union Arcade Bldg.
Davenport, Iowa 52801
5-1803; 3700
Filed June 28, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
BONNIE ENGALDO,
Claimant,
vs.
File No. 968978
IPSCO STEEL, INC.,
A P P E A L
Employer,
D E C I S I O N
and
CIGNA,
Insurance Carrier,
Defendants.
____________________________________________________________
5-1803
Claimant awarded 35 percent industrial disability.
3700
No inference was to be drawn from fact that defendants'
representative was in the hearing room but did not testify;
but, fact that claimant's testimony was unrebutted was
relied upon.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
BONNIE ENGALDO, :
:
Claimant, :
:
vs. :
: File No. 968978
IPSCO STEEL, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CIGNA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on December 7, 1993, at
Davenport, Iowa. This is a proceeding in arbitration
wherein claimant seeks compensation for permanent partial
disability benefits as a result of an alleged injury
occurring on November 5, 1990. The record in the proceeding
consists of the testimony of the claimant; joint exhibits A
through W; and defendants' exhibit 1.
ISSUES
The issues for resolution are:
1. Whether there is a causal connection as to any
healing period, temporary total disability or permanent
partial disability and claimant's alleged November 5, 1990
injury;
2. The nature and extent of claimant's permanent
disability and entitlement to disability benefits, if any;
and,
3. Whether claimant is an odd-lot candidate.
FINDINGS OF FACT
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant is 35 years old and completed the eighth grade
and failed the ninth grade. Claimant obtained her GED but
has no other formal education.
Claimant listed several drugs that she used with her
former husband who she indicated was a drug user. Claimant
used drugs for approximately two and one-half years but
contends she was never arrested and has no criminal
Page 2
background.
Claimant has seen a psychiatrist and psychologist prior
to her November 5, 1990 injury.
Claimant indicated she was diagnosed with a panic
disorder in 1985 and an anxiety disorder in 1988. Claimant
said that she was treated from February 1990 through May
1990 for swelling behind the knee and needed a bone scan.
During this period, she had pain in her neck and back, also.
Claimant was asked concerning the cause of those
symptoms and she indicated she began working for Swiss
Colony and she was sitting at a desk using the phone a lot.
Claimant described her anxiety disorder as an
overreaction of the adrenaline glands and that she gets
headaches, her neck becomes stiff and affects her ears, she
begins sweating and has difficulty breathing. She indicated
that when anxiety comes on, her head feels swollen and this
extends into the neck muscles and into the shoulder and
back. Claimant said her anxiety disorder came to a head in
1988 and she was hospitalized in June of 1988.
Claimant stated that prior to November 1990, she was
never injured or had prior muscular complaints and never
went to a neurologist or orthopedist.
Claimant's attention then was called to joint exhibit M
in which she went to the chiropractor on March 25, 1988 with
complaints of ear, head, shoulder and back pain and pain in
the upper neck right side. She had been dizzy and short of
breath with anxiety and abdominal pain. She indicated she
had first noticed her symptoms of pain in the neck,
shoulders and back one month earlier. Claimant contended
that this treatment was not for her low back and that page 4
of said exhibits shows the adjusted area, which is the
cervical area. Claimant said she was never treated for low
back problems prior to November 1990.
Claimant then was specifically questioned as to joint
exhibit W which is a list of businesses she worked at during
her work history. She went into detail as to the nature of
the job and what it entailed. Claimant indicated that from
1975 through 1990, she basically had steady employment. She
said she worked up to three jobs a day during the 1980 to
1982-1983 period which encompassed about 16 hours per day.
Claimant said that the job with defendant employer was the
best job she ever had, which paid $8.15 per hour. Prior to
that her best job was a $6 per hour job at Swiss Colony.
She also indicated that she got more benefits with defendant
employer.
Prior to claimant beginning work with defendant
employer on August 6, 1990, she had two interviews and an
extensive physical. This physical included a driving test
and exercises (including setups and 15 pushups) at a clinic.
Claimant described the nature of her work with
defendant employer. She described the weights that this job
Page 3
required her to lift, the required bending of her low back,
extending her arms, and holding things in her arms.
Claimant described how she was injured on November 5,
1990. It occurred while she was lifting a corner of a 450
pound object to get it over a crack and felt a sharp pain in
her back radiating down to her left. She saw the doctor on
November 5, 1990. He recommended light duty and no lifting
over 10 pounds and no pulling, pushing or bending. She was
to come back in 10 days. Claimant came back in 10 days.
She told the doctor her employer did not honor the
restrictions and that she had been lifting 20 pound parts
out of boxes and showed the doctor how she was bending and
twisting. The doctor again, as reflected in his notes,
wrote that she was not to lift over 10 pounds for a week.
(Jt. Ex. H)
On November 24, 1990, claimant was laid off with 16
other people. Claimant felt this was a general layoff but
found out later that they had abolished her job. She said
when she was trained she had been trained to do several
other jobs, also.
On December 26, 1990, John M. O'Shea, M.D., released
claimant to return to work on December 31, 1990. The
doctor's notes further reflect that on December 31, 1990, he
then referred claimant to an orthopedic surgeon since
claimant wasn't responding to conservative treatment and he
took claimant off work until she saw a Dr. Ginther.
Defendants contend that this ended claimant's healing period
and claimant contends it does not. There were several other
notes or letters in joint exhibit H in which Dr. O'Shea
refers to claimant returning to work on December 31; yet,
these seem inconsistent with him recommending her to stay
off work and see Dr. Ginther.
Claimant then went to work hardening which occurred
over the period from February 4, 1991 to March 14, 1991,
involving 18 sessions out of 27 scheduled sessions.
Claimant described what her sessions were comprised of but
they were set up to help her get back to the physical status
necessary to do the job she had at the time of her injury.
(Jt. Ex. K) After the last of the sessions, the physical
therapist indicated claimant will be returning to Dr.
Ginther for re-evaluation and they will wait for the orders
regarding her future care. Dr. Ginther's' notes are joint
exhibit N.
Claimant indicated that the defendants hired a
rehabilitation person for her and that that person went with
her, set up the doctor appointments, and went with her to
the doctor, including Dr. Ginther. They were aware that Dr.
Ginther sent her to a work hardening program but they
discontinued her benefits through November 27, 1991, anyway.
Claimant testified that she was sent to a neurologist,
Michael L. Cullen, M.D., and the appointment was set up by
the rehabilitation consultant. Claimant indicated the
doctor didn't do much but did an evaluation and examined her
and took a history. As reflected on page 2 of joint exhibit
Page 4
O, the doctor opined claimant had a 5 percent impairment of
the whole person due to her November 5, 1990 injury. He
also indicated in this April 11, 1991 report that she was
limited as to what she could lift, frequency, etc. (Jt. Ex.
O, pp. 1-2)
Claimant then testified that the doctor's secretary
told her that if the claimant wanted to see an attorney, she
did not have to come back to them and indicated they fired
her as a patient. This is supported by the March 4, 1992
letter of joint exhibit O wherein the doctor indicated he
found it very difficult to function when the first
individual that the claimant calls for medical advice is her
attorney and that he recommended, therefore, she seek
medical care elsewhere. The undersigned finds nowhere in
the record in which the first person claimant called for
medical advice was her attorney. The doctor, as indicated
earlier, had written a report on April 11, 1991.
Joint exhibit P is the records of W. John Robb, M.D.
In a letter dated May 30, 1991, he was unable to rate
claimant but indicated that she had not received full
recovery and that she would reach maximum recovery within
the next six to nine months.
In his June 25, 1991 notes, he indicated he had told
the rehabilitation consultant, Barbara Laughlin, that it was
going to be two to three months of dedicated exercise
routine that is going to result in improvement of claimant's
ability to return to some type of work. He then set up
physical therapy for claimant.
Defendants' exhibit P contains a December 2, 1991
letter of Dr. Robb in which he opines claimant has a 5
percent permanent impairment of her body as a whole and
indicated she could do light work and lifting 10 to 20
pounds on an occasional basis at first and then heavier
weights could be attempted. He didn't think she would ever
be able to return to lifting over 50 pounds. Defendants
also indicated that claimant's complaint at that time was in
her neck and shoulders and that the lumbosacral spine strain
had recovered.
Claimant then related that her own attorney sent her to
Robert J. Chesser, M.D., who opined in his June 5, 1992
letter encompassed in joint exhibit R that claimant had a 9
percent permanent impairment to her body as a whole. She
also had restrictions. In a November 18, 1993 letter, Dr.
Robb then withdrew his previous 5 percent permanent
impairment and indicated claimant did not have any
impairment from her November 1990 accident. He changed his
mind based on what he indicated was further review of the
additional extensive medical history of claimant based on
her subjective complaints. This change of mind is
questionable under the circumstances and being so close to
the hearing.
After claimant's release by Dr. Robb to return to light
duty on November 27, 1991, claimant said she didn't look for
work right away and disagreed with Dr. Robb. Claimant
Page 5
indicated she started looking for work in February 1992.
Claimant then related the various places she contacted for
employment. Claimant indicated she likes factory work
because the time goes faster and strange people affect her
and her anxiety gets high. She indicated that in a factory
setting, the anxiety situation is better once she gets use
to the place. She related any job she tried and her reason
for not being able to continue working. She cited her
restrictions as being a limiting factor. She went through
vocational rehabilitation and indicated that they would call
her if they found something and they have never called her.
(Jt. Ex. V) Claimant indicated that any job she obtained
was on her own and that the defendant employer has done
nothing to help her get a job nor have the rehabilitation
people hired by defendant employer. She indicated she
couldn't do her prior job with defendant employer. She
acknowledged she is currently going to a Dr. Kayo. She is
on Xanax to keep her from getting panic attacks. She
acknowledged that she is addicted to Xanax but indicated it
helps her panic attacks and it is monitored by the doctor
once a month. She indicated she couldn't drive before it
was regulated. She indicated that her panic attacks cause
different muscles to be affected versus her activity when
she works. It seems like Xanax affects her neck area and
the muscles. She emphasized that the panic attacks do not
affect her low back. Claimant emphasized that the only
injury she is claiming in this case is to her low back and
not anywhere else. She also does not contend that her panic
attacks are caused by her work injury of November 5, 1990.
She said she was originally contending her upper back was
also involved but has dropped that from this case.
On cross-examination, claimant denied that she has a
substance abuse problem. She indicated that she is only
addicted to Xanax. She disagreed that she has alcohol abuse
problems.
Joint exhibit A is the records of L.B. Hussey, M.D.,
and covers a period of time up to September 20, 1988. There
is no question from these records that claimant has been on
a considerable amount of medication and drugs.
The records of Dr. Benjamin Sy are in joint exhibit B.
They cover a period of time up to November 22, 1989. Again,
there is no question that claimant has been on medication
for her anxiety and depression. It appears any mention of
pain involves the neck or mid-back.
The records of Pragna Bhatt, M.D., are reflected in
joint exhibit C. Joint exhibit E is the records of Grey M.
Woodman, M.D., and they go to a period of July 20, 1989.
Joint exhibit F is the records of Dr. Ruperall, of the
Morrison Hospital, and they go to February 24, 1990. Joint
exhibit G is the records of B.G. Lambos, M.D. Joint exhibit
H is the records of John M. O'Shea, M.D., which has been
referred to in more detail earlier. Joint exhibit I is
Samaritan Health System records. Joint exhibit P is the
record of W. John Robb, M.D., which has been previously
referred to. Joint exhibit K is the Work Hardening and
Fitness Center records and L is the records of Sinnissippi
Page 6
Mental Health Center. These records involve claimant's
anxiety and panic problems in 1992 and also part of 1988.
They reflect what has also been testified to by the claimant
that she was suffering from her anxiety disorders prior to
and after her November 5, 1990 injury. She also testified
that she currently is troubled by these same problems. She
emphasized she wasn't making claims for these problems.
Joint exhibit M is the records of Associated
chiropractors. Joint exhibit N is the records of Dr.
Ginther, which have been previously referenced to. Joint
exhibit O is the records of Michael L. Cullen, M.D., who had
given claimant a 5 percent impairment due to her November 5,
1990 injury and was previously referred to. Joint exhibit P
is the record of W. John Robb, M.D., which has previously
been referenced.
The defendants stipulated that the injury arose out of
and in the course of claimant's employment on November 5,
1990. The dispute is the extent of healing period or
temporary total disability, any permanent disability, if
any, and the causal connection as to the same.
Claimant contends the healing period should begin
November 24, 1990, which is the date claimant was off work
which actually was a layoff through November 27, 1991.
Defendants contend claimant's healing period began November
24, 1990 through December 31, 1990. Defendants rest their
position on the fact that Dr. O'Shea in November of 1990
indicated claimant could return to work on December 31,
1990. There is also reference at that time that he decided
to send her to Dr. Ginther and that she was to be off work
until she saw him. Claimant without question was off work
through a doctor's orders. There are actually several
periods one could probably pick thereafter to determine
claimant's healing period. Claimant ended her work
hardening on March 14, 1991, and there is indication that
her healing period therefore ended April 11, 1991. Dr.
Robb, in joint exhibit P, indicated on May 30, 1991, that
claimant had not yet reached recovery yet and it might be
six to nine months thereafter until she reached maximum
recovery. Dr. Robb, on May 9, 1991, indicated claimant
couldn't return to work but maybe she could on September 9.
There is a December 2, 1991 letter in which on November 27,
1991, the doctor said claimant could return to light work.
In that same letter, Dr. Robb opined a 5 percent permanent
impairment to claimant's body as a whole.
The undersigned believes without question that the
healing period did not end on December 31, 1990, as
defendants contends as the overwhelming medical evidence
shows that she wasn't able to and, in fact, the doctor who
made that comment referred her to another doctor and
indicated she should be off work until she saw that doctor.
There is no indication that that doctor then put her back to
work at a time even close to Dr. O'Shea's comments in
November of 1990. The undersigned finds the greater weight
of medical testimony shows that claimant was in a healing
period through November 27, 1991, as reflected in Dr. Robb's
December 2, 1991 letter. When the claimant was in his
Page 7
office on November 27, 1991 for evaluation, he then made the
conclusions referred to above. The undersigned realizes
claimant has anxiety and panic disorder attacks and these
have had an effect on her. The fact is the record is
overwhelming that claimant has had these problems for years
and was in fact working and able to work notwithstanding
these attacks.
Claimant has not made a big effort to try to find
employment. This is particularly unfortunate under the
current status of the law in regards to the Americans With
Disabilities Act in which certain questions can not be asked
of a potential employee as far as their past medical until
after a job has been offered to her. It is also obvious
that claimant's panic attacks and anxiety disorder has and
is affecting her ability to either get a job or the type of
job due to the fact that her association with people, the
numbers, etc. can set off her attacks. She is making no
claim that these are the result of her November 5, 1990
injury.
Claimant is not an odd-lot candidate.
As to claimant's permanent disability, the undersigned
finds that in addition to her November 5, 1990 injury having
caused claimant to concur an extensive healing period, it
also caused claimant to incur industrial disability. The
undersigned finds that the greater weight of testimony
reflects that claimant did incur an injury on November 5,
1990 which resulted in claimant receiving a permanent
impairment to her body as a whole but also considerable
rigid restrictions of which there is no evidence they have
currently been removed. Several doctors had the same or
similar restrictions for the claimant as far as lifting,
twisting, etc. There is no evidence that claimant could
perform the job she was performing at the time of her
November 5, 1990 injury and that it is undisputed that
claimant was doing her job at the time of her injury. The
evidence is also clear on the present record that after
claimant's injury, she was sent back to work with
restrictions and that the employer did not obey those
restrictions and allowed the claimant to proceed as if there
were no restrictions. Claimant continued to do her same job
that caused her injury originally and it is undisputed and
obvious to the undersigned that claimant was doing lifting
many times a day, sometimes several hundred times, all in
violation of her restrictions. The undersigned additionally
feels that this aggravated claimant's condition and made it
worse and made it more severe than it might have been had
the employer followed the restrictions.
The undersigned might note that an R. Bruce Havens, the
director of personnel for defendant employer, was in the
courtroom through the whole proceedings. Before the
defendants rest their case, he was asked by defendants'
attorney as to whether he wanted to testify or as to whether
he wanted to add anything further and he said he didn't.
The undersigned therefore presumes that Mr. Havens could not
dispute the contentions claimant made as far as her work
conditions and the company violating her restrictions, etc.
Page 8
Otherwise, it is presumed by the undersigned he would have
testified under oath contrary to claimant's testimony if he
found it to be untrue.
There is no evidence that the rehabilitation expert or
consultant hired by the defendants made any effort to find
claimant a job or to try to get her back to work with
defendant employer. The claimant indicated that factory
work is what she would like to do if she was able to do
anything because of her panic attacks and disorder and the
necessity of being either more by herself or with people she
is familiar with and not with a lot of people in a lot of
contact communications. Defendant employer has done nothing
since her layoff in this regard. Claimant has not been able
to hold a job that she is able to do. Again, as mentioned
earlier, things other than her work injury is contributing
to this. There is no question claimant has a long history
of care concerning her panic attacks and anxiety disorder.
It is also evident that claimant was operating
notwithstanding the same until her injury and at least until
she was laid off. Defendants also contend that the Xanax
that claimant is taking and is addicted to is really causing
claimant's low back problems and as claimant testified, she
is not contending that she has taken Xanax because of her
work injury. There is no proof that the Xanax is in fact
causing claimant's low back problems. There is evidence
that when claimant has an attack, her neck muscles in the
cervical area and in her shoulder area tighten up and are
affected. As claimant testified, she is not claiming any
cervical injury. There is considerable medical evidence as
to claimant's cervical problems and claimant has withdrawn
her claim that those are caused mostly by her work injury.
The undersigned believes that claimant would still be
working with defendant employer notwithstanding her anxiety
or panic attacks had she not been injured on November 5,
1990 and had the employer not obeyed her restrictions and
kept her working at the same job until she was laid off
around November 24, 1990. As indicated earlier, defendants
had an opportunity to deny this occurred. This continuing
work in violation of restrictions occurred. Claimant has a
loss of income.
Taking into consideration claimant's medical history
prior to and after her November 5, 1990 injury, her work
experience prior to the injury and after injury; her
rehabilitation; extent of her healing period, her age,
education, emotional and physical state; her wages prior to
her injury and after her injury; her inability to engage in
employment for which she is fitted as a result of her
injury; the location and severity of her injury; her
motivation; education; functional impairment; and the
refusal of employer to give claimant any work after her
injury, the undersigned finds claimant has incurred a 35
percent industrial disability.
CONCLUSIONS OF LAW
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
Page 9
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).
In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa
1985), the Iowa court formally adopted the "odd-lot
doctrine." Under that doctrine a worker becomes an odd-lot
employee when an injury makes the worker incapable of
obtaining employment in any well-known branch of the labor
market. An odd-lot worker is thus totally disabled if the
only services the worker can perform are "so limited in
quality, dependability, or quantity that a reasonably stable
market for them does not exist." Guyton, 373 N.W.2d at 105.
The burden of persuasion on the issue of industrial
disability always remains with the worker. When a worker
makes a prima facie case of total disability by producing
substantial evidence that the worker is not employable in
the competitive labor market, the burden to produce evidence
of suitable employment shifts to the employer, however. If
the employer fails to produce such evidence and if the trier
of fact finds the worker does fall in the odd-lot category,
the worker is entitled to a finding of total disability.
Guyton, 373 N.W.2d at 106. Even under the odd-lot
doctrine, the trier of fact is free to determine the weight
and credibility of evidence in determining whether the
worker's burden of persuasion has been carried, and only in
an exceptional case would evidence be sufficiently strong as
to compel a finding of total disability as a matter of law.
Guyton, 373 N.W.2d at 106.
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
Page 10
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
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
Page 11
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 further concluded that claimant's November 5,
1990 injury caused claimant to incur a healing period
beginning November 24, 1990 through November 27, 1991,
encompassing 52.714 weeks.
It is further concluded that claimant incurred an
industrial disability of 35 percent with benefits to begin
on November 28, 1991.
It is further concluded that all benefits shall be paid
at the weekly rate of $220.66. The parties stipulated to a
$225.32 rate but claimant is single with one dependent
child.
It is further concluded that claimant is not an odd-lot
candidate and is not entitled to recover benefits under the
odd-lot theory.
ORDER
THEREFORE, it is ordered:
That defendants shall pay unto claimant healing period
benefits at the rate of two hundred twenty and 66/100
dollars ($220.66) for the period beginning November 24, 1990
through November 27, 1991, encompassing fifty-two point
seven one four (52.714) weeks.
That defendants shall pay unto claimant one hundred
seventy-five (175) weeks of permanent partial disability
benefits at the rate of two hundred twenty and 66/100
dollars ($220.66) beginning November 28, 1991.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid. The undersigned
understands from the statement of counsel that twenty-three
thousand eight dollars and 66/100 dollars ($23,008.66) has
previously been paid by the defendants.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of January, 1994.
Page 12
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr James M Hood
Attorney at Law
302 Union Arcade Bldg
Davenport IA 52801
Mr John M Bickel
Attorney at Law
500 Firstar Bank Bldg
P O Box 2107
Cedar Rapids IA 52406-2107
5-1803
Filed January 4, 1994
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
BONNIE ENGALDO, :
:
Claimant, :
:
vs. :
: File No. 968978
IPSCO STEEL, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CIGNA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
Claimant awarded 35% industrial disability.