BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ROBERT W. JOHNSON,
Claimant,
vs.
File No. 969091
FIRESTONE TIRE & RUBBER,
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 March 22, 1993 is affirmed and is adopted as the final
agency action in this case with the following additional
analysis:
The parties seek to distinguish this case from Prewitt v.
Firestone Tire and Rubber Company, Appeal Decision, August
12, 1992. Prewitt does not contain a new holding of law.
Prewitt applied longstanding authority for the proposition
that the compensation for an injury to a shoulder is
determined by the situs of the impairment resulting from
that injury. If the impairment extends beyond the arm to
the body, the compensation will be in the form of industrial
disability. If the impairment from the injury is confined
to the arm, the compensation will be according to the
schedule. The particular facts of Prewitt resulted in
compensation for the arm rather than the body as a whole
because the facts in Prewitt failed to show the impairment
extended beyond the arm. Although apparently much
misunderstood, Prewitt did not set forth new law.
Where two cases involve the same principle of law, but
differ factually and result in different conclusions because
of those differences in facts, it is not necessary to
distinguish the one case from the other. In this case, the
same legal principle applies that controlled in Prewitt and
Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834 (Iowa 1986).
That is, the situs of the impairment controls the
compensation. Although Lauhoff may be summarized by some as
standing for the principle that "injuries to the shoulder
Page 2
are injuries to the body as a whole," such is an
oversimplification and misleading. Prewitt is consistent
with Lauhoff and many other precedents of this agency in
stating that, in shoulder injuries, the situs of the
impairment controls the method of compensation. The fact
that applying this principle to the facts of Prewitt led to
an infrequently seen result does not indicate that Prewitt
has made new law; on the contrary, Prewitt has reaffirmed
longstanding law.
Under the facts of this case, the medical evidence clearly
indicates that the impairment from claimant's shoulder
injury did extend beyond the arm into the body as a whole.
Claimant is to be compensated industrially.
Defendants shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of August, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert W. Pratt
Attorney at Law
6959 University Avenue
Des Moines, Iowa 50311
Mr. Marvin E. Duckworth
Attorney at Law
2700 Grand Ave., Ste 111
Des Moines, Iowa 50312
1803; 1803.1
Filed August 23, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
ROBERT W. JOHNSON,
Claimant,
vs.
File No. 969091
FIRESTONE TIRE & RUBBER,
A P P E A L
Employer,
D E C I S I O N
and
CIGNA,
Insurance Carrier,
Defendants.
_________________________________________________________________
1803.1
Left shoulder injury was compensated industrially where
claimant's doctor testified that the injury was to the shoulder
as opposed to an injury to the fingers, the hand, the wrist, or
the elbow. The treating physician testified that the injury
involved the three muscles at the front of the shoulder. The
treating orthopedic surgeon restricted claimant from any overhead
work and from working above the shoulder level. This case was
distinguished from Prewitt v. Firestone Tire and Rubber Company,
(Appeal Decision, August 12, 1992).
1803
Claimant was awarded a 50 percent industrial disability as a
result of an injury to the left shoulder. Claimant returned to
work at the plant where he had sustained his work injury.
However, claimant was unable to return to his former position as
a tire builder. Three physicians restricted claimant from tire
building. Claimant was accommodated but his new position paid
approximately $15.00 per hour as opposed to the former position
where he would have earned $25.71 per hour. Claimant was
restricted from engaging in overhead work and from working above
shoulder level. Certain weight restrictions were also imposed.
The restrictions were severe, although claimant's position within
the plant was secure. Claimant had no hope of ever earning the
same rate of pay as he had earned prior to the left shoulder
injury.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ROBERT W. JOHNSON, :
:
Claimant, :
:
vs. :
: File No. 969091
FIRESTONE TIRE & RUBBER, :
: 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 is a proceeding in arbitration upon the petition of
claimant, Robert W. Johnson, against his employer, Firestone Tire
and Rubber Company, and its insurance carrier, CIGNA Insurance
Company, defendants. The case was heard on March 9, 1993 at the
office of the industrial commissioner in Des Moines, Iowa. The
record consists of the testimony of claimant. The record is also
comprised of the testimony of Mike Ables, Benefits Representative
for Local 310 of the United Rubber Workers. Finally, the record
is comprised of claimant's exhibits 1-59 and defendants' exhibits
A-N.
ISSUES
The sole issue for determination is the nature and extent of
any permanent partial disability benefits.
FINDINGS OF FACT
The deputy, having heard the testimony and considered all
the evidence, finds:
Claimant is 50 years old, although he appears much younger
than his stated years. He is married and lives on a small family
farm in Osceola, Iowa. He has a high school diploma which he had
earned in 1961 from Valley High School in West Des Moines, Iowa.
Claimant commenced his employment with defendant-employer in
August of 1965. However, because of a layoff, his adjusted
starting date is listed as November 13, 1965. Other than during
periods for strikes and layoffs, claimant has been continuously
employed by defendant-employer. For most of his employment,
claimant has been a tire builder. His duties have included
servicing tire builders, supervising tire builders, instructing
new tire builders, and serving as a quality coordinator. He has
Page 2
been an excellent employee with an outstanding work record.
Claimant has sustained several work injuries during his
tenure with defendant-employer. In 1982 claimant sustained a
work injury to his right shoulder. After the work injury,
claimant was able to resume his regular duties as a tire builder.
He performed all of his assigned tasks without complications.
Claimant sustained other work injuries but none of the injuries
prevented claimant from returning to his duties as a tire
builder.
On March 27, 1989, claimant sustained another work-related
injury. He was attempting to remove some rubber material from a
tray. He was working over his head with his left arm. He felt
his left arm jerk back and over his head. He experienced pain in
his left shoulder area. Claimant did not seek medical attention
on the date of the injury but he did report the injury. However,
he sought medical attention on the following day.
For a period of time claimant was treated conservatively.
In May of 1989 claimant was authorized to seek treatment from an
orthopedic specialist, Marvin H. Dubansky, M.D. Initially, Dr.
Dubansky treated claimant in a conservative fashion. Eventually,
Dr. Dubansky diagnosed claimant as having an impingement syndrome
of the left shoulder (Exhibit E, page 6).
Dr. Dubansky performed an impingement release on September
1, 1989. In his deposition, Dr. Dubansky described the surgical
procedure as:
Q. What was the nature of that surgery?
A. An impingement release. Basically it was a Neer
acromioplasty, which one thins down the underside of
the acromion, and a resection of the coracoacromial
ligament
(Ex. E, p. 6, lines 21-25)
Claimant remained in a healing period subsequent to the date
of the surgery. His employer was able to return claimant to a
light duty position where he was able to drive a fork lift truck.
Dr. Dubansky advised claimant to work so long as he was able to
keep his elbows to his side (Ex. E, p. 7). Claimant's progress
was monitored by the treating orthopedic surgeons, Dr. Dubansky
and his associate Dr. Kenney (first name unknown), as well as by
the plant physician, James Blessman, M.D.
Gradually, the physicians modified claimant's restrictions.
Nevertheless, Dr. Dubansky refused to release claimant to tire
building. The physician opined that claimant was not medically
capable of returning to that position because the nature of the
work involved reaching up and out with the left arm. Dr.
Dubansky permanently restricted claimant from engaging in over
head work and from working above the shoulder. The physician
advised claimant to take as much stress off of his shoulder as
possible.
Page 3
Dr. Dubansky opined the following in his report of July 30,
1991:
Pursuant to our conversation of July 25, 1991 and my
review of your chart, I feel that tirebuilding, [sic]
probably because of the nature of the job, would have
an excellent chance of causing recurrence of your symp
toms. However, I feel that jobs not requiring repeti
tive lifting above your head should probably not cause
resurgence of your problem. If you are only occasion
ally required to lift above your head, I do not feel
that something of this nature, say 5 to 6 times an hour
should be a source of difficulty. As far as weight
limitations, the only thing I know to satisfy this
would be a Functional Capacity Evaluation.
(Ex. 58)
Dr. Dubansky rated claimant as having a permanent functional
impairment using the AMA Guides to the Evaluation of Permanent
Impairment, Third Edition. Dr. Dubansky opined that claimant had
a six percent impairment to the left upper extremity which
equated to a four percent impairment to the body as a whole.
The plant physician, Dr. Blessman, also refused to return
claimant to work as a tire builder (Ex. 72). Claimant continued
to argue with the plant physician regarding a return to work as a
tire builder. Dr. Blessman authorized a functional capacity
evaluation through Thomas Bower, LPT. The plant doctor also
authorized another opinion from another orthopedic specialist.
As a result, defendants approved an independent medical
examination from Jerome Bashara, M.D. Dr. Bashara examined
claimant on one occasion, March 8, 1991. In his report, Dr.
Bashara opined that:
DIAGNOSIS: 1) Impingement syndrome, left shoulder,
postoperative status related to an injury at work,
March of 1989.
I would give the patient a 9% permanent partial physi
cal impairment of the left upper extremity which should
be converted to a 5% permanent partial physical impair
ment of his body as a whole as the surgery did involve
the patient's scapula and, therefore, went into the
body as a whole and beyond the humeral head.
(Ex. 83)
The functional capacity evaluation was performed by Tom
Bower, LPT on October 14, 1991. Based upon his findings, Mr.
Bower restricted claimant as follows:
POSITION MAXIMUM LIFT FREQUENT LIFT REPETITIVE
Floor to Waist 60 lbs. 52 lbs. 42 lbs.
Chest Height 40 lbs. 35 lbs. 17 lbs.
Page 4
Overhead 40 lbs. 35 lbs. 17 lbs.
Carry 60 lbs. 52 lbs. 42 lbs.
Push/Pull 190 lbs.
(Ex. 105)
During his hearing, claimant testified that as of May 16,
1991, he was permanently transferred from the tire builder posi
tion. His rate of pay dropped from $23.50 per hour as a tire
builder to $12.01 per hour as a jeep driver. In March of 1992,
claimant was transferred from the jeep driver position, which he
did not enjoy, to the position of tire processor inspector. He
was compensated at the rate of $14.86 per hour. At the time of
the hearing, claimant was earning $15.23 per hour. Claimant tes
tified that if he had remained a tire builder, he would have been
earning in excess of $25.00 per hour. Claimant also testified
that the first year in which the reduced wages were reflected was
calendar year 1992.
During the hearing, claimant also testified to retirement
eligibility. He testified he would be eligible for retirement
after 30 years of employment. His earliest date for retirement
was given as 1995. Claimant had no immediate plans to retire at
the time of the hearing.
Mike Ables testified to some of the benefits which an
employee of defendant-employer could earn. He testified that the
average hourly earnings in the tire room equated to $25.71 per
hour but there was no way for the witness to predict what
claimant would have earned if he had not been injured and thus
medically removed from the tire building position. Mr. Ables
also testified that after 30 years, an employee could retire from
defendant-employer and still receive the full pension.
CONCLUSIONS OF LAW
The party who would suffer loss if an issue were not estab
lished has the burden of proving that issue by a preponderance of
the evidence. Iowa R. App. P. 14(f).
The right of an employee to receive compensation for
injuries sustained is statutory. The statute conferring this
right can also fix the amount of compensation payable for differ
ent specific injuries. The employee is not entitled to compensa
tion except as the statute provides. Soukup v. Shores Co., 222
Iowa 272, 268 N.W. 598 (1936).
Compensation for permanent partial disability begins at ter
mination of the healing period. Section 85.34(2). Permanent
partial disabilities are classified as either scheduled or un
scheduled. A specific scheduled disability is evaluated by the
functional method; the industrial method is used to evaluate an
unscheduled disability. Simbro v. Delong's Sportswear, 332 N.W.2d
886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa
1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95
Page 5
(1960).
An injury to a scheduled member may, because of after
effects or compensatory change, result in permanent impairment of
the body as a whole. Such impairment may in turn be the basis
for a rating of industrial disability. It is the anatomical
situs of the permanent injury or impairment which determines
whether the schedules in section 85.34(2)(a) - (t) are applied.
Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986);
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980);
Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
Soukup, 222 Iowa 272, 268 N.W. 598 (1936).
When disability is found in the shoulder, a body as a whole
situation may exist. Alm v. Morris Barick Cattle Co., 240 Iowa
1174, 38 N.W.2d 161 (1949). In Nazarenus v. Oscar Mayer & Co.,
II Iowa Indus. Comm'r Rep. 281 (Appeal December 1982); a torn
rotator cuff was found to cause disability to the body as a
whole.
Claimant alleges that he has sustained an injury to the body
as a whole and that he is entitled to industrial disability bene
fits. Defendants are of the view that claimant's shoulder injury
has caused disability only to the upper extremity and should be
compensated as a scheduled loss. Formerly, this division compen
sated shoulder injuries industrially on the basis that such
injuries involved disability to the body as a whole. Streeter v.
Iowa Meat Processing Company, (Appeal Decision, March 31, 1989).
A more recent appeal decision emphasized that it is the
situs of disability that is determinative. In Prewitt v.
Firestone Tire and Rubber Company, (Appeal Decision, August 12,
1992), the industrial commissioner held that where the treating
surgeon testified that claimant had full range of motion and full
strength of the shoulder following an injury and surgery, then
claimant had sustained an injury to the arm rather than to the
shoulder.
In the case at hand, claimant's injury is an injury to the
body as a whole. Claimant's injury can be distinguished from the
injury in the Prewitt case. In the present situation, Dr.
Dubansky testified in his deposition that:
Q. Doctor, as a layperson, when you orthopedic
physicians, trained as you are, talk about the rotator
cuff, so I and perhaps the Commissioner may better
understand, what is the rotator cuff?
A. It's composed basically of three muscles which
take their origin on the scapula, which is the shoulder
thing. It passes and inserts into the head of the
humerus, into the greater and lesser--the greater and
lesser trochanters of the humerus. And when that
muscle contracts, it shortens, and because of the
configuration of the head of the humerus and glenoid,
and because of the deltoid, the arm elevates.
Q. Is it fair for me to conclude from that that
it's the series of muscles that help the arm fit into
Page 6
the body at what is referred to as the shoulder area?
A. Well, it depends on what you call body.
Q. Okay.
A. The medical definition would be those are the
muscles that run the shoulder. Now, whether you call
it body or whether you call it shoulder or upper
extremity, I don't know.
Q. Your notes, Doctor, of 5-31-89 reflect the
history of the anterior rotator cuff area. And, again,
as a layperson, when you say the "anterior rotator cuff
area," where are you talking about, Doctor?
A. Front of the shoulder.
Q. Okay.
A. That's where it inserts and that's where he was
tender.
Q. And on June 8, '89, you say that he was tender
in the rotator cuff area, and so you did an injection
into the left rotator cuff area. Where is the injec
tion, Doctor, that you performed?
A. In front. It's into the ligament, actually, the
coracoacromial ligament and bursa, subacromial bursa
area.
Q. Doctor, if we have an imaginary line between the
humerus and clavicle, what side would the injection
fall on that you made on the 8th of June?
A. Line between the what?
Q. Clavicle and humerus. Are you injecting on the
side--
A. You're injecting beneath the clavicle and toward
the midline--actually into the humerus, where the
muscle attaches.
...
Q. Doctor, what is the technical difference between
a rotator cuff tear and an impingement syndrome?
A. Impingement syndrome merely means things are
tight. Like if that door were half as wide and I tried
to walk through it, I would be impinged. A rotator
cuff tear is where the muscle that I previously
described is actually torn. There's a loss of continu
ity between the muscle and insertion into the head of
the humerus.
Q. Doctor, when you did the surgery on September 1,
Page 7
'89, did you actually remove part of the person's
acromial--of the acromion?
A. Yes. The under surface of the acromion. That's
the Neer acromioplasty.
Q. When you say you resected something, what do you
do?
A. I remove the ligament that goes from the tip of
the acromion to the tip of the coracoid.
Q. Doctor, if you would look at your note of 62190,
just if you'd read it to yourself, and I want to ask
you a question about it, if I may.
A. Yes.
Q. So I can have this right, the "D" is you as
opposed to another?
A. Yes.
Q. Based upon this note, when do you think that Mr.
Johnson reqained the ability to, or when did he reach
maximum medical recuperation from the effects of the
injury of March 27?
Page 8
A. Well, at that time I just said for sometime.
I'm not sure what that means.
Q. When you tell us there's some atrophy of the
deltoid muscle, Doctor, again as a layperson, what does
that mean?
A. The deltoid is the muscle that you see that sort
of rounds out the shoulder, that you can actually visu
alize, and it seemed a little smaller than his other
side, so that--he hadn't been using it as much. So
atrophy means it's smaller, the muscle has gone down in
size.
Q. Would that be related to the injury and surgery?
A. Yes.
(Ex. E, p. 13, l. 8 through p. 15, l. 7; and p. 17, l. 3 through
p. 18, l. 21)
Claimant's injury extends into the front of the shoulder.
The three muscles which operate the shoulder are involved. Addi
tionally, Dr. Dubansky has opined that claimant has a functional
impairment to the shoulder rather than to the fingers, the hand,
the wrist, or the elbow. (Ex. E, p. 20, l. 21 through p. 21, l.
7). Claimant has sustained an injury to the body as a whole.
Claimant's injury is to be compensated industrially.
Since claimant has an impairment to the body as a whole, an
industrial disability has been sustained. Industrial disability
was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258
N.W.2d 899 (1935) as follows: "It is therefore plain that the
legislature intended the term 'disability' to mean 'industrial
disability' or loss of earning capacity and not a mere
'functional disability' to be computed in the terms of percent
ages of the total physical and mental ability of a normal man."
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to the
injured employee's age, education, qualifications, experience,
motivation, loss of earnings, severity and situs of the injury,
work restrictions, inability to engage in employment for which
the employee is fitted and the employer's offer of work or
failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa
1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288
N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa
285, 110 N.W.2d 660 (1961).
Compensation for permanent partial disability shall begin at
the termination of the healing period. Compensation shall be
paid in relation to 500 weeks as the disability bears to the body
as a whole. Section 85.34.
While it is acknowledged that claimant has sustained prior
work injuries, including an injury to his right shoulder in 1982,
his prior injuries have no effect upon any industrial disability.
Page 9
Prior to the work injury in question, claimant was able to per
form all duties which were assigned to him. He was able to work
as a tire builder which paid wages in excess of $23.00 through
$25.00 per hour.
Subsequent to the injury involving the left shoulder,
claimant has been unable to perform his duties as a tire builder.
He has made repeated efforts to find a physician who will return
claimant to his former position. As of March of 1992, claimant's
diminution in earning capacity is reflected in his positions with
defendant-employer. He is incapable of returning to tire build
ing. He has some employment opportunities available to him
within the plant. However, the positions pay considerably less
than does the position of tire building. Claimant is prohibited
from engaging in overhead work or from working above his shoul
ders. There are some lifting restrictions which are imposed upon
claimant. The restrictions are severe. The available positions
pay in the range of $12.00 to $15.25 per hour. Claimant has a
very slim chance of earning in the $25.00 per hour range again.
Claimant's job is secure. There is little likelihood of termina
tion. He has a seniority date which places him at 200 out of
1240. He can retire, if he so chooses, after 30 years.
In light of all of the above, as well as in light of the
record in general and given this deputy's observation of
claimant, it is held that claimant has sustained an industrial
disability equivalent to 50 percent of the body as a whole or 250
weeks. Claimant is entitled to weekly benefits at the stipulated
rate of $629.86 per week. Per the parties' stipulation, the ben
efits shall commence on December 14, 1989.
ORDER
THEREFORE, it is ordered:
Defendants shall pay unto claimant two hundred fifty weeks
(250) of permanent partial disability benefits at the stipulated
rate of six hundred twenty-nine and 86/l00 dollars ($629.86) per
week commencing on December 14, 1989.
Defendants shall take credit for all benefits voluntarily
paid prior to hearing.
All accrued benefits shall be paid in a lump sum together
with statutory interest pursuant to Iowa Code section 85.30.
Costs are assessed to defendants pursuant to rule 343 IAC
4.33.
Defendants shall file a claim activity report as requested
by this division and pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of March, 1993.
Page 10
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert W. Pratt
Attorney at Law
6959 University Avenue
Des Moines, Iowa 50311
Mr. Marvin E. Duckworth
Attorney at Law
Terrace Center STE 111
2700 Grand Avenue
Des Moines, Iowa 50312
1803; 1803.1
Filed March 19, 1993
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ROBERT W. JOHNSON,
Claimant,
vs.
File No. 969091
FIRESTONE TIRE & RUBBER,
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.
___________________________________________________________
1803.1
Left shoulder injury was compensated industrially where
claimant's doctor testified that the injury was to the shoulder
as opposed to an injury to the fingers, the hand, the wrist, or
the elbow. The treating physician testified that the injury
involved the three muscles at the front of the shoulder. The
treating orthopedic surgeon restricted claimant from any overhead
work and from working above the shoulder level. This case was
distinguished from Prewitt v. Firestone Tire and Rubber Company,
(Appeal Decision, August 12, 1992).
1803
Claimant was awarded a 50% industrial disability as a result of
an injury to the left shoulder. Claimant returned to work at the
plant where he had sustained his work injury. However, claimant
was unable to return to his former position as a tire builder.
Three physicians restricted claimant from tire building.
Claimant was accommodated but his new position paid approximately
$15.00 per hour as opposed to the former position where he would
have earned $25.71 per hour. Claimant was restricted from
engaging in overhead work and from working above shoulder level.
Certain weight restrictions were also imposed. The restrictions
were severe, although claimant's position within the plant was
secure. Claimant had no hope of ever earning the same rate of
pay as he had earned prior to the left shoulder injury.
Page 1
2701, 2501, 2700, 2902, 2906
Filed April 6, 1993
Walter R. McManus
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DAVID L. KUSTER, SR.,
Claimant,
vs.
File No. 969141
ROSE ACRE FARMS,
A L T E R N A T E
M E D I C A L
Employer,
C A R E
D E C I S I O N
and
HOME INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
2701, 2501, 2700, 2902
Claimant failed to prove that he was entitled to
alternate medical care for his alleged vision, continuing
pain and depression. Claimant specifically asked to see an
ophthalmologist, a chiropractor and a psychiatrist as a part
of his treatment for this injury.
None of the medical practitioners whose reports are in
evidence indicated that claimant was actually in need of
this care. Claimant produced no independent medical
evidence from any other medical practitioners that he was in
need of this care. Nor had claimant sought or paid
privately for such care in the two years and four months
since this injury with exception of a few chiropractic
treatments. Nor did claimant, who claimed to be financially
needy, request such care from county health programs.
Defendants established that claimant received
reasonable care.
2906
Even though defendants alleged and established that
claimant did not communicate his request for this care prior
to filing his petition as required by Iowa Code section
85.27 and Rule 343 IAC 4.48(4), and also even though
defendants established that claimant had not responded to
discovery requests made in December of 1992 as required by
Rule 343 IAC 4.48(9), the deputy determined it was in the
best interest of justice and the best interest of the
parties to hear and decide the case on the merits rather
than attempt to dispose of it on procedural grounds.
Page 2
Where claimant had made a threat of violence to the
insurance company representative prior to hearing she was
allowed to be present and testify at the hearing by speaker
telephone at the request of defendants' counsel.
Likewise, claimant's counsel was informed that capital
police would be out of sight but on duty and in surveillance
of claimant at the time of the hearing.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DAVID L. KUSTER, SR.,
Claimant,
vs.
File No. 969141
ROSE ACRE FARMS,
A L T E R N A T E M E D I C A L
Employer,
C A R E D E C I S I O N
and
HOME INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration filed by David L.
Kuster, Sr., (pronounced Keester) claimant, against Rose
Acre Farms, employer, and Home Insurance Company, insurance
carrier, defendants, requesting alternate medical care
pursuant to Iowa Code section 85.27 and rule 343 IAC 4.48.
A hearing was held in Des Moines, Iowa on April 5, 1993 and
the case was fully submitted at the close of the hearing.
The hearing began at 1:45 p.m. and ended at 4:45 p.m.
Claimant was represented by Martin L. Fisher. Defendants
were represented by Dorothy L. Kelley. The record consists
of the testimony of David L. Kuster, Sr., claimant, and
Kathy King, insurance company representative. Each party
submitted approximately ten pages of medical exhibits. The
hearing was recorded on audio tapes. King was not present
in the courtroom but was present by speaker telephone during
the entire hearing and testified by speaker telephone at the
request of defendants' counsel because of a threat of
violence made against her by claimant previously during
telephone conservation with her.
ISSUE
The sole issue for determination is whether claimant is
entitled to alternate medical care (1) from an eye
specialist for alleged vision problems, (2) for treatment by
a chiropractor for alleged continuing pain and (3) for
psychiatric care due to alleged depression or other
emotional problems.
Page 2
PRELIMINARY MATTERS
Defendants' counsel admitted on the record (1) that an
employer-employee relationship existed between claimant and
employer at the time of the injury, (2) that claimant
sustained an injury which arose out of and in the course of
employment with employer.
The deputy announced at the beginning of the hearing
that he been delegated the authority by the industrial
commissioner to issue the final agency action in this
matter. Therefore, appeal of this decision, if any, would
be by judicial review pursuant to Iowa Code section 17A.19.
FINDINGS OF FACT
It is determined that claimant is not entitled to the
alternate medical care requested.
The employer is obligated to furnish reasonable medical
services and supplies to treat an injured employee but also
has the right to choose the care. Iowa Code section 85.27
(unnumbered paragraphs one and four).
Iowa Code section 85.27 (unnumbered paragraph four)
further provides that "If the employee has reason to be
dissatisfied with the care offered, the employee should
communicate the basis of such dissatisfaction to the
employer, in writing if requested, following which the
employer and the employee may agree to alternate care
reasonably suited to treat the injury." King testified and
defendants' counsel contended that claimant had never
requested any of this care until he filed his petition for
alternate medical care. Thus, defendants did not have an
opportunity to discuss the alternate medical care requested
with claimant prior to the original notice and petition,
save require that his dissatisfaction be expressed in
writing.
In addition, rule 343 IAC 4.48(9) Discovery and
evidence, provides as follows: "All discovery must be
completed prior to the contested case hearing." Defendants'
counsel contended in her answer to the petition for
alternate medical care dated March 29, 1993, that discovery
propounded to claimant and served on December 21, 1992 was
still outstanding. In addition, defendants' counsel also
contended, correctly, that at the time of the rescheduling
telephone conference between counsel for both parties and
the deputy on March 29, 1993, that she again requested that
her discovery request submitted to claimant on December 21,
1992, be honored prior to this hearing. At the hearing
defendants' counsel contended that she had never received
the requested discovery information, which allegation
claimant's counsel did not deny.
Even though these procedural requirements of the
statute and rules had not been met, it was the determination
of the deputy to hear and decide the case on the merits in
the best interest of justice and in the best interest of
both parties rather than dispose of it on these procedural
Page 3
deficiencies.
Claimant, age 48 testified that he has been in the
automobile salvage business as a self-employed person for
approximately 30 years. Because of a need for additional
finances he started to work for employer in August of 1990.
On November 6, 1990, claimant fell approximately 12 feet
from a walkway, landed on his feet and then flipped
backwards onto a pile of sawdust with broken wood in it.
During the fall he grabbed a 2 x 6 board with his right hand
and injured his right hand, wrist, arm and shoulder.
Claimant was treated on the injury date, November 6,
1990, by D. S. Tillotson, D.O., for complaints of pain in
his right shoulder radiating down his arm into digits one,
two and three and also some numbness with abduction of his
shoulder. X-rays were negative for fracture of the shoulder
or wrist. Dr. Tillotson prescribed a sling,
anti-inflammatory medications, analgesic ice packs and
physical therapy treatments. In her medical report dated
December 5, 1990, Dr. Tillotson stated that the patient had
not followed-up with physical therapy and failed to keep his
last appointment with her. King testified that she only
recorded one physical therapy treatment while claimant was
treating with Dr. Tillotson and that was on November 6,
1990.
Since this was the first examination by a medical
practitioner and it occurred on the same date of the injury
it should be noted that claimant did not complain about his
neck, back, vision, headaches, lower extremities or his ears
which are all parts of his body which he currently alleges
were injured in this accident.
Defendants' counsel called attention to the fact that
claimant declined to attend additional physical therapy
treatments and failed to keep his scheduled appointments
with Dr. Tillotson.
Claimant next saw David Ahrens, M.D., his personal and
family physician on December 6, 1990, who recorded that
claimant had been seeing Dr. Tillotson but would like a
second opinion and he was out of Tyenol with codeine.
Claimant complained of pain in his right shoulder, neck, low
back and left ankle. Dr. Ahrens diagnosed dislocation of
the right shoulder, neck strain, back strain, and sprain of
the left ankle. He referred claimant to Rodney E. Johnson,
M.D., an orthopedic surgeon. An appointment was set up with
Dr. Johnson at 8:00 a.m. on December 7, 1990. Defendants'
counsel emphasized, and claimant admitted, that he did not
keep this appointment with Dr. Johnson at this time.
Claimant did see Dr. Johnson on December 24, 1990 who
recorded complaints of pain to his neck, shoulder, wrist,
thumb, index and long finger. The doctor suspected a
rotator cuff tear to the right shoulder and requested an
arthrogram with a CT scan. He suspected a possible C6 disc
injury for which he ordered cervical MRI.
On January 14, 1991, Dr. Johnson saw claimant on
Page 4
follow-up and reported that the cervical MRI demonstrated
degenerative changes at C4-5 as well as C5-6, but that they
did not correspond to the symptoms which the patient
complained of. The doctor reported that claimant refused to
have the arthrogram of his shoulder with a contrast CT scan
because he refused to have dye injected into his shoulder.
Defendants' counsel emphasized that claimant refused the
diagnostic arthrogram which was ordered by the orthopedic
surgeon. Dr. Johnson said that because of this he was
forced to perform an MRI of the shoulder which was a less
satisfactory and a less reliable test than the arthrogram.
Dr. Johnson referred claimant to Joseph M. Doro, D.O.,
a neurologist for an EMG of the right arm.
King testified that the only other physical therapy
treatment which claimant submitted to was one more treatment
during the treatment of Dr. Johnson on January 8, 1991.
Defendants' counsel pointed out that claimant was requesting
chiropractic care but refused physical therapy when it was
offered to him.
Dr. Doro saw claimant on February 18, 1991, recorded
that claimant complained of pain in his neck, shoulder, arm,
thumb, index and middle finger. Dr. Doro also recorded that
claimant said that he was not seeing well with either one or
both of his eyes. Dr. Doro indicated that the MRI of his
neck ordered by Dr. Johnson did not show any abnormalities.
Dr. Doro stated that the EMG was difficult to perform
because claimant was sensitive to electrical current and
that he was not able to complete all of the EMG because of
the difficultly claimant had with needles. Dr. Doro added
however, that he did not find any obvious abnormalities to
suggest a radiculopathy or plexopathy.
Dr. Doro did find evidence of a right carpal tunnel
syndrome. Dr. Doro suspected that most of claimant's
difficulties were on a chronic musculoskeletal basis. He
said that they are slowly resolving. He suggested physical
therapy and anti-inflammatory muscle relaxants but stated
that the claimant was reluctant to do many things at this
point. Defendants' counsel again emphasized that claimant
did not fully cooperate with the EMG test of Dr. Doro and
again declined physical therapy and anti-inflammatory muscle
relaxants when they were offered.
With respect to his vision Dr. Doro said that an
ophthalmologist could be consulted to see if there is
anything significant but he rather preferred a CT scan of
the head because of his headaches. The CT scan of his head
did not show any abnormalities. Dr. Doro stated that he
would find it difficult to explain his monocular (one eye)
difficulties on the basis of a central process. Defendants
contended that the head CT scan eliminated any physiological
basis for claimant's vision problems and that they never
received a request for an ophthalmologist until this
petition for alternate care.
Claimant was seen again by Dr. Johnson on April 24,
1991, at which time he said the MRI of the shoulder did not
Page 5
indicate there was a tear but he rather suspected some
tendonitis around the shoulder. He too recorded that the
EMG was positive for right carpal tunnel. He noted that
claimant's right shoulder impingement or rotator tendonitis,
type of complaint, had not been relieved by rest, exercise
or anti-inflammatories and he offered to inject the shoulder
with Cortisone but that claimant declined the Cortisone
injection. Defendants' counsel stressed that claimant again
refused the medical treatment of the orthopedic surgeon of a
Cortisone injection in his shoulder and that he further
declined to have the carpal tunnel syndrome surgery, which
was recommended by Dr. Johnson on April 24, 1991.
Claimant saw Dr. Ahrens again on June 3, 1991, for a
recheck and a refill of Tyenol No. 3. The only complaint
mentioned was the right shoulder on this date. The doctor
found crepitation and some tenderness. He continued to
diagnose right shoulder strain.
The next chronological event is that claimant saw Dr.
Aherns again on October 4, 1991 and wanted Tyenol No. 3. He
diagnosed right shoulder strain again and referred claimant
to Dr. Johnson again. An appointment was arranged for
Wednesday October 9, 1991 at 11:00 a.m. Claimant admitted,
and defendants' counsel again highlighted the fact, that
claimant refused to receive medical treatment from an
authorized orthopedic surgeon when it was authorized and
recommended by his personal and family physician.
On November 18, 1991, Dr. Johnson gave a 4 percent
impairment rating of the neck which he arbitrarily
apportioned 50 percent to degenerative changes preexisting
this injury and 50 percent related to this injury. Normally
the award of a permanent impairment rating is construed to
mean that the employee has attained maximum medical
improvement. This was the last time claimant saw Dr.
Johnson.
During 1992, claimant saw Allan J. Schultz, D.C., a
chiropractor in Johnston, Iowa, on July 30, 1992 and August
19, 1992. His reports labeled these office visits as
session number two and session number three and therefore
claimant apparently had an earlier visit to Dr. Schultz.
His graphs showed a definite loss of strength in the right
side but at the same time it had improved significantly
between these two visits.
Claimant next saw Dr. Doro again on September 10, 1992.
The MRI of the brain, which was intended to rule out any
serious complications of his vision problem, was negative.
The MRI of the cervical spine showed mild degenerative
spondylosis at C-4/5, 5/6 and 6/7. Dr. Doro concluded there
does not appear to be any surgically correctable process in
his neck and he did not see any evidence of any structural
abnormality of his brain.
Dr. Doro indicates that claimant had attained maximum
medical improvement by two comments in his report of
September 10, 1992: (1) "At this point, I am not sure how
much more there is to offer him." (2) "I do not think
Page 6
further conservative treatment is going to be of benefit to
him."
Dr. Doro ended with two conclusions (1) he was not
certain whether repairing his carpal tunnel might help, (2)
the question of a pain clinic came up and he thought that
was the only other option available at this point.
Claimant contended that Dr. Doro had recommended an
ophthalmologist in his report of February 18, 1991.
Defendants countered that instead Dr. Doro recommended the
MRI scan of the brain which was negative and ruled out any
physiological basis for his headaches or vision problems.
Defendants also contend, correctly, that Dr. Doro only
commented that an ophthalmologist could be consulted but
recommended the CT scan instead. Dr. Doro did not refer
claimant to an ophthalmologist nor did he recommend that he
be referred to an ophthalmologist. He merely mentioned that
"an ophthalmologist could be consulted."
Claimant also contends that Dr. Doro recommended a pain
clinic on September 10, 1992. Defendants on the other hand
contend that Dr. Doro only stated that the question of a
pain clinic came up, which indicates that it may have been
raised by claimant rather than the doctor. Defendants
further contend that Dr. Doro did not recommend a pain
clinic but merely stated it would be the only other option
available at this point. Dr. Doro did not refer claimant to
a pain clinic, nor did he recommend that claimant be treated
at a pain clinic.
Claimant contended that he injured his knee cap at the
time the fall because it was jammed backwards. Defendants
correctly contend that there is no evidence of a knee cap
injury anywhere in the medical records.
Claimant contends that he had an earache and found
blood in his ear in approximately April of 1992 which is
approximately one and one-half years after this injury
occurred. Defendants correctly pointed out that there is no
mention of earache or ear complaints of any kind in the
medical records which are submitted in this hearing.
Defendants' counsel also pointed out the fact that
claimant declined to have carpal tunnel surgery when it was
recommended to him. Furthermore, the deputy has a problem
for the reason that Dr. Doro did not make a causation
statement on what caused the carpal tunnel syndrome. Carpal
tunnel syndrome is currently a very common disease which
occurs in both employment situations outside the home and
employment situations inside the home and in private life.
Dr. Johnson did not make a causation statement on the cause
of the carpal tunnel syndrome.
This injury occurred approximately two years and four
months ago. During that period of time claimant has not
sought out any private treatment by a physician of his own
choice for his vision complaints, his pain complaints to his
right upper extremity and neck or any psychiatric or
psychological treatment for his depression or other
Page 7
emotional problems (with the exception of seeing
chiropractors approximately four times).
Claimant contended that he has had serious financial
problems but admitted that he had not sought out treatment
for his vision, pain or emotional problems through the
county health organization.
None of the authorized doctors have recommended
chiropractic care. Claimant refused the physical therapy
treatments that were offered by Dr. Tillotson and Dr.
Johnson after only one treatment. Claimant brought forth no
medical evidence from either Dr. Schultz or the other
chiropractor in Ft. Dodge, Iowa that he had seen that
chiropractic care would improve or be beneficial to his
condition.
Neither did claimant present any medical evidence from
any source whatsoever that he was in need of vision care
from an ophthalmologist.
None of the medical reports in evidence demonstrate
that claimant was suffering from depression or severe
emotional problems. Claimant produced no medical evidence
from any medical practitioner that he was in need of
psychiatric or psychological counseling for any reason, save
due from this injury.
The parties agreed that defendants have scheduled
claimant for a physical capacity examination on April 6,
1993, the day following this hearing on April 5, 1993, which
is evidence that claimant's evaluation has not been entirely
abandoned even though Dr. Johnson and Dr. Doro indicated
that claimant had attained maximum medical improvement and
that claimant had voluntarily quit seeing Dr. Tillotson and
Dr. Ahrens. There was further evidence that an independent
medical examination had been discussed between the parties.
The only evidence of claimant's emotional instability
was that when talking with King she alleged that he swore at
her, indicated that he could handle firearms, and discharged
a firearm twice during the conversation. She further
testified that she has a recorded conversation for these
events which claimant concluded by stating that if they
could not work out an independent medical examination that
she might be seeing him personally. Claimant admitted this
did happen. Claimant testified that it was due to
frustration, anger, financial difficulties, his lack of
employment, the weather and other factors that may have been
affecting him at the time of that conversation.
Wherefore, based upon the foregoing evidence, it is
determined as a matter of fact that claimant has not
submitted facts which show that the medical treatment that
he has received for this injury was not reasonable. On the
contrary, it is determined, as a matter of fact, that
claimant has received reasonable medical care based upon the
evidence submitted at this hearing.
CONCLUSIONS OF LAW
Page 8
WHEREFORE, based upon the foregoing and following
principles of law these conclusions of law are made:
That claimant did not sustain the burden of proof by
preponderance of the evidence that the medical care that he
was provided was not reasonable medical care. Iowa code
section 85.27 (unnumbered paragraphs one and four).
That claimant did not sustain the burden of proof by
preponderance of the evidence that he is entitled to
alternate medical care. Iowa Code section 85.27 (unnumbered
paragraph four).
That defendants have shown that the care provided was
reasonable.
ORDER
WHEREFORE, IT IS determined that claimant is not
entitled to an order for alternate medical care.
The costs of this hearing, are charged to claimant
pursuant to rule 343 IAC 4.33 and Iowa Code section 86.40.
That defendants are ordered to continue to file claim
activity reports as requested by this agency pursuant to
rule 343 IAC 3.1.
That the undersigned has been delegated the authority
to issue final agency action in this matter. Appeal of this
decision, if any, would be by judicial review pursuant to
Iowa Code section 17A.19.
Page 9
Signed and filed this ____ day of April, 1993.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Martin L. Fisher
Attorney at Law
306 Audubon St.
P.O. Box 158
Adair, IA 50002
Ms. Dorothy L. Kelley
Attorney at Law
500 Liberty Building
Des Moines, IA 50309
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ROBERT WALKER, :
: File No. 969163
Claimant, :
:
vs. : A R B I T R A T I O N
:
GRIFFIN PIPE PRODUCTS CO., : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant :
:
___________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on October 20, 1993, at
Council Bluffs, Iowa. This is a proceeding in arbitration
wherein claimant seeks compensation for permanent partial
disability benefits as a result of an injury that occurred
on November 15, 1990. The record in the proceeding consists
of the testimony of the claimant, Trent Risper, and Thomas
Leedy; and, joint exhibits 1 through 25.
ISSUES
The issues for resolution are:
1. The extent of claimant's permanent disability, if
any; and,
2. Who is responsible for payment of the $390 bill of
Dr. Eggers.
FINDINGS OF FACT
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant is a 49-year-old who went through the eleventh
grade and dropped out to go into the armed services.
Claimant obtained his GED in the armed services. Claimant
reviewed his work history up to May 31, 1984, at which time
he began working for defendant employer. Claimant's prior
work history involved painting, paper hanging, lifting of
heavy boxes, bending, stooping, twisting, and climbing. He
also served in the armed services and went through strenuous
exercises there. Claimant indicated he had no prior back
problems or injuries.
Claimant had a pre-employment physical with C. Edwards,
Jr., M.D., and he wasn't sure if x-rays were taken of his
back or not. He was hired and began working at which time
he had no pain or tingling or problems with his low back.
Claimant worked for defendant employer as a laborer and in
several other positions, including the maintenance
Page 2
department, hand gun, and trough operation. He described
the nature of his work and what he did. Claimant indicated
that his job required him to stand, lift 10 to 100 pounds,
bend, climb and unload. The floor he stood on was concrete.
He said the jobs he bid on are set out in the union
contract.
Claimant said that on November 15, 1990, he was
unloading a flatbed truck and was in the process of cleaning
up the mess when he bent down and hurt his low back. He
said he had been unloading and picking up bags or boxes of
ladle, which is a paste. These boxes weighed about 100
pounds each. He said no one else was around except when a
security person came by and noticed claimant was holding his
back. Claimant said a foreman filled out an accident report
during this second shift which was from 3:00 p.m. to 11:00
p.m. Claimant went to the nurses' station. Ice was put on
his back and he was then driven to the hospital. Claimant
said he went to work on November 16, 1990. He said he told
the hospital that he hurt his back and pain was going down
into his right leg and into his foot.
Claimant said he had physical therapy and that the pain
is better some days than others. He indicated his right leg
would go numb, he had spasms and the bottom of his foot and
toes would tingle. Claimant related some of his treatment
and indicated he had a 25 pound lifting restriction which he
contends is still in existence.
Claimant returned to work in September 1991 as a
laborer and not to his former job as he indicated he wasn't
able to do his former job.
Claimant described the type of work he was doing when
he first returned to work, which included making up stickers
for trucks, cleaning nuts and bolts, and sitting in the
first aid room. He contends he knows of no other employee
who was told to wear a light duty sticker on his hard hat.
He referred to joint exhibit 19. He said this was a special
light duty sticker and this has resulted in him receiving
criticism and harassment from employees and the foreman. He
said some of the comments are that they wished they had his
job. He indicated he had his break schedule interrupted or
changed. He said he filed a grievance because of the way
the company was treating him.
Claimant said that his current light duty work is not
protected under the collective bargaining agreement. He
said he would like to go to school and then go into his own
business. Claimant said Behrouz Rassekh, M.D., recommended
a pain clinic but the employer said it was too expensive so
claimant did not go.
Claimant acknowledged that he went to a Dr. Eggers, a
psychiatrist, on his own and was not referred to by any
doctor. He said the reason he went to the doctor was
because he felt bad about his life and was not sure of
himself and wanted things to be straightened out.
Claimant indicated he misses or leaves work once in a
Page 3
while because of his pain and he would call the employer if
he cannot make it and doesn't get paid for that particular
day. He said prior to November 15, 1990, he did not miss
hardly any work.
On cross-examination, claimant acknowledged that he has
had absences since his return to work in September 1991. He
acknowledged that he was suspended three days on one
occasion for non-work absences and had been warned before in
November 1991 of his absences. He indicated that one was
because of his wife having open heart surgery and another
because his daughter was having a baby.
Claimant was again questioned concerning his contention
that his current job is not a bid job. Claimant said he was
told it was not a bid job or a collective bargaining job but
the company has denied it. He admitted that no employer has
said he isn't covered by the collective bargaining
agreement. Claimant acknowledged that he has a right to bid
on a job and that seniority plays a part in getting a job
one would bid on. Claimant acknowledged that he has not
told the company or personnel manager that any job they post
that they think claimant can do to call him to present his
bid. It appears this has been done by others in the same or
similar situations. Claimant acknowledges that he is the
one who makes the decision as to whether he wants to bid or
not. He is concerned that his present job may terminate.
Claimant said since September 1991 he has gone to adult
education classes to increase his reading and math skills.
Claimant said he has not prepared himself further since the
September 1991 return to work because he is still employed
with defendant employer and intends to continue working for
them.
Trent Risper testified that he has worked with
defendant for seven and one-half years and is a grinder. He
is familiar with the other jobs as a union steward. He said
he has observed claimant and claimant gets around the plant
very slow. He appears in pain and is in a bent over
condition. He is familiar with claimant's light duty work.
He acknowledged claimant is now cleaning nuts and bolts and
has not seen others doing this type of job. He was referred
to exhibit 19 which is a hard hat with the light duty
sticker thereon. Mr. Risper said he has never seen anyone
else have a sticker on a hat. He said claimant told him he
has been harassed by others who have indicated they wished
they could get a sticker so they could get out of working.
He acknowledged that a grievance was not filed because
this isn't provided for in the contract. He knows of others
who are on light duty and they aren't required to wear a
sticker. He has observed other employees harassing
claimant. He was familiar with the foreman harassing
claimant by scheduling his breaks at a different time. He
knows of no others whose break times were changed.
He testified that claimant is presently in a non-bid
job. He wasn't familiar with any job that claimant could
perform with defendant employer. He knows of claimant
leaving in the middle of the week and he agreed that one or
Page 4
two times a week claimant doesn't come to work. Mr. Risper
acknowledged that defendant is trying to accommodate the
employees but feels claimant is handled differently. Mr.
Risper also acknowledged that defendant tries to accommodate
each individual as an individual and that each individual
may be treated differently depending on the particular
employee's situation.
On cross-examination, Mr. Risper acknowledged that bid
jobs include the labor pool and when one first starts, they
are in the labor pool and later they can bid on a job. He
said he again indicated that the labor pool is a bid job.
Mr. Risper also acknowledged that claimant could take
the sticker off if he wanted to. It is not mandatory that
the light duty sticker be placed on the hat. It would
appear to the undersigned that this sticker can have
advantages or disadvantages but that it is to help the
employer or someone who might not be as familiar with the
defendant as someone else to make sure he is not put in work
other than light duty. It would appear that the employer
could get criticized either way. It appears to the
undersigned that if claimant felt the sticker did not
prevent his chance of being put somewhere other than light
duty, he could take the sticker off.
Mr. Risper acknowledged that the company won both
grievances as to the light duty sticker and as to claimant
working in the first aid room.
Thomas Leedy testified that he has been employed by
defendant since May 1990 and is the plant personnel manager.
Before this he was with defendant's company located in
another state. He is familiar with the duties and jobs at
defendant as he is responsible for the hiring of all
employees and needs to know the nature of the jobs so that
he can evaluate them. He has been in the court room during
this proceeding and has heard claimant testify. He said the
company has a status of light duty program to provide work
for those who are temporarily injured and is a way to try to
accommodate the workers. He said they won't replace another
worker. He said all of the employees are covered by the
collective bargaining agreement. He heard Mr. Risper
testify and it is obvious he disagrees if Mr. Risper is
trying to say that certain employees or the claimant wasn't
covered by the collective bargaining agreement.
Mr. Leedy acknowledged that light duty work wasn't a
permanent status and that there are employees with permanent
restrictions that are not on light duty. He acknowledged
the company won the grievances previously referred to. He
acknowledged claimant is the only one that has been this
long on light duty work as one usually gets off of that. He
emphasized the purpose of the sticker is to show a
supervisor that claimant is on restrictions and not to
violate the restrictions. Mr. Leedy also said that the
company has not prevented claimant from bidding on any other
job. He said the claimant has the right to bid on a job and
the company cannot prevent this. Likewise, he indicated
that if claimant thought he was being prevented, he could
Page 5
file a grievance as to the company interfering with his
bidding on a job. There were six various jobs mentioned in
which Mr. Leedy indicated he thought claimant could do or a
certain part could be adjusted so that claimant could be
accommodated so claimant could do these jobs. They either
paid as much or more as the job he was doing at the time of
his injury or what he is getting at his current light duty
job, which is the same he was getting at the time of his
injury. Mr. Leedy went into detail as to the specifics of
each particular job.
Mr. Leedy emphasized that whether claimant considers
himself permanent light duty or incapable, claimant's status
is no different than any other employee. Claimant then was
put on the stand again in rebuttal and went through the
various jobs that defendant contends claimant could do or
could be so modified that claimant could do. Claimant
contends that there were some part of each job he wasn't
able to do or they would violate his restrictions.
Joint exhibit 1(a) is an October 29, 1992 letter from
Charles Taylon, M.D., in which he opined claimant had a
three percent permanent impairment to the body as a whole
and is restricted to 25 pounds of lifting and there should
be no pushing and pulling greater than 25 pounds.
The doctor earlier, on September 14, 1992, indicated
claimant's step climbing should be restricted to five steps
in a series each time he attempts to walk up and down steps.
Sitting and standing should be on an as-needed basis.
Joint exhibit 1(f) is a July 1, 1991 letter from Dr.
Taylon indicating that claimant suffered a mechanical
musculoligamentous injury to his low back. In another
letter dated the same date (jt. ex.(d)(2), the doctor
believed that the claimant's injury to his low back was the
result of a work-related injury in November of 1990. At
that time, he opined a three percent permanent partial
impairment to claimant's body as a whole. Therefore, as you
can see, the time between October 2, 1991 and September 2,
1992, there was no increase or decrease in permanent
impairment as far as Dr. Taylon was concerned.
Joint exhibit 2(a)(1) is an August 17, 1993 report of
Kurtis M. Hoppe, M.D., in which he opined claimant had seven
percent permanent impairment of his body as a whole and that
he could continue to work at light duty. A physical
capacity evaluation completed on July 22, 1993 indicates
that the patient was able to work safely at that physical
demand level and that this test may represent the claimant's
minimal work capabilities.
Joint exhibit 2(b)(1) is a functional capacity
evaluation that was done on July 22, 1933, and was the
evaluation referred to by Dr. Hoppe. One might note on page
2(b)(3) that they emphasize the data in the functional
capacity evaluation is only representative of claimant's
minimal work ability and his maximum ability is left to
conjecture. It would appear to the undersigned that reading
the report as a whole that claimant is capable of doing more
Page 6
than he is possibly doing on his light duty job but it
confirms the fact that he is able to do the light duty work
that he is currently doing. It would appear to the
undersigned that claimant's motivation might affect his
attempt to try to do more and try to work back into
performing work similar to the work he was previously doing
or at least working with the employer in modifying and
accommodating him but upgrading the nature of his work,
particularly since he seems to think it is menial work or as
his attorney indicated gratuitous employment.
Joint exhibit 4 is reports of Behrouz Rassekh, M.D., a
neurosurgeon. His reports covering the period April to
December 20, 1991, reflect that there are periods he cannot
determine or explain claimant's symptomatology but feels he
has pain and he has in his December 1991 report indicated
claimant should not lift over 40 pounds and should not do
any repeated bending, stooping or repeated lifting and
should avoid long periods of driving. In August of 1991,
the doctor had a 25 pound restriction on claimant. In
August of 1991, he indicated claimant could gradually
increase his work activity. The doctor had no explanation
of why claimant was having the amount of pain that he was
having. He also believed possibly claimant should go to a
pain clinic. It appears claimant has not seen Dr. Rassekh
since his last apparent appointment of December 14, 1991.
The medical records seem to indicate that claimant has
or shows a degenerative disc between L4-5 and L5-S1 and some
bulging, but there is no evidence that claimant was having
any problems with this condition prior to November 15, 1990.
Of course, as would be expected, someone at the age of 49
would start having some degenerative diseases of his disc.
As it is well known, they don't often show up until there is
some traumatic injury.
Joint exhibit 8(a)(1) is a psychological pain
assessment report from the University of Nebraska. Joint
exhibit 8(a)(5), under recommendations, it was the consensus
of the licensed and certified clinical psychologist that
claimant was not a good candidate for surgical intervention
but that the best course of treatment would be a
participation in the pain management program. A report
dated November 13, 1991 was the same year that Dr. Rassekh
recommended or suggested pain management for claimant.
Joint exhibit 8(a)(6) and (7) is a physical therapy
screening evaluation dated November 13, 1991. It was also
recommended by the pain program physical therapist that
claimant was appropriate and capable of participating in the
full pain management program and it would be in his best
interest for improvement to participate in the full program.
Claimant had testified at the hearing that a pain clinic was
recommended but the employer said it was too expensive and
that claimant didn't go because it was too expensive for
him. Under the Iowa law, the employer has the choice and if
the employer refuses, of course, the employer can choose
that course but as is so typical in workers' compensation
cases, often the claimant cannot afford it, particularly if
it is not to be covered. Of course, the employer takes a
Page 7
risk as to whether that would improve claimant or not and if
it improved claimant, it would lower any industrial
disability for any permanent impairment and industrial
disability and if it isn't successful, then that could be
used by the claimant to further support claimant's position.
That is the risk that is taken by the respective parties.
Joint exhibit 9 reflects a psychological factor in this
case. The record seems to indicate that there was no
problems of this nature prior to claimant having been
injured. Keep in mind that the parties agree that there was
an injury. The only real issue in this case is the extent
of claimant's permanent disability and, therefore, his
industrial disability.
Joint exhibit 10(a) is a February 10, 1992 report which
is another functional evaluation and a B-200 evaluation. It
indicates that claimant was performing at submaximal effort,
thereby, making the finding invalid. The report indicates
it was difficult to determine the motivation behind
claimant's poor performance on this evaluation and that it
may be due to conscience controlling of the test results or
may be due to fear of increased pain of specific testing.
The report indicates that claimant continues to be limited
more by his subjective complaints of pain than due to true
limitations in his strength and mobility (Jt. Ex. 10(a)(2)
Joint exhibit 11 is the Midlands Rehabilitation
Consultants report dated February 6, 1992. Joint exhibit 12
is a July 9, 1992 report of Iowa Department of Education
Division of Vocational Rehabilitation Services. Joint
exhibit 13 is a Rehabilitation Professionals report dated
July 19, 1992.
It seems like one of the things that run through these
reports is claimant's lack of transferable skills. There is
also mention of claimant getting further education because
of his deficiency in certain areas. As seen by claimant's
testimony, he did update his skills a little bit but he has
not pursued anything further because he is working for
defendant employer and desires to continue working for them.
One might note that the conclusions drawn by the certified
professional counselor rehabilitation consultant in joint
exhibit 13(a)(6) is that claimant suffers 40 percent
industrial disability. Determining industrial disability is
the sole authority of the deputy industrial commissioner.
It seems in these reports that the particular writer of the
reports feels claimant is or may lose his job. There has
been no indication in the testimony that claimant will or is
about to lose his job. Claimant may have indicated he is
not totally satisfied with it but the decision herein is
rendered on the basis that the claimant will continue to be
employed at defendant employer's and that his income will
not be decreased because of him being on light duty or
unable to do the heavier work that defendant employer might
desire him to do if he were not injured. The undersigned is
not going to speculate as to what the future may be for
claimant. The rules and laws provided for review-reopening
Page 8
are applicable under the circumstances existing at such time
in the future as claimant's job status may change. The
undersigned is only considering facts as they exist at the
time of the hearing. Of course, things could improve or get
worse. The undersigned is not going to speculate.
Joint exhibit 14 is another rehabilitation report from
the Nebraska Vocational Rehabilitation Services Career
Development Center. Again, this report seems to hinge on
claimant going to different occupations and getting
additional training and education. There has been no
indication from claimant's testimony or the record that
claimant intends to do anything but continue on with
defendant employer. He has indicated that he might like to
do certain other things but there is no effort on his part
to really accomplish anything else. The undersigned
believes that claimant's efforts and increased motivation
could be directed in staying with an employer that is
attempting to accommodate him and is willing to work with
him. The employer should be congratulated contrary to what
the claimant seems to indicate. In considering his
testimony, the undersigned believes the employer is
attempting to work with the claimant and is not trying to
demean him or discourage him. It would appear that claimant
could begin to help himself by telling the employer that he
would like to be notified when there are good jobs open that
the employer may initially think would fit either within
claimant's restrictions or the employer could accommodate
claimant in a particular bid job. For some reason, claimant
has failed to do this. It might be he is waiting until this
litigation is over. It appears to the undersigned it is
time for the claimant to make his decision as there are
plenty of vocational rehabilitation reports in this file.
Joint exhibit 25 is an October 6, 1993 report by the
Omaha Orthopedic Clinic & Sports Medicine. This independent
medical evaluation was made at the request of defendant.
Anil K. Agarwal, M.D., wrote an extensive report setting out
the information he reviewed in the medical reports, etc. He
concluded in part that claimant had a preexisting lumbar
spondylosis which may have been aggravated by an injury at
work on November 15, 1990, and that claimant is working and
may continue to do so with some restrictions that he had
noted. He further opined that claimant sustained a three
percent permanent impairment and loss of physical function
of the body as a whole. Of course, Dr. Agarwal saw claimant
only this one time and his evaluation was done approximately
two weeks before hearing. The undersigned feels Dr.
Agarwal's report is very biased, in particular, when he
indicates that claimant had a preexisting lumbar spondylosis
which may have been aggravated by an injury at work on
November 15, 1990. This seems to indicate that claimant's
problem is the preexisting lumbar spondylosis which no other
medical doctor determined or concluded. It also seems to
indicate that that is claimant's problem and it may be
aggravated by a work injury on November 15, 1990. The
Page 9
evidence is very clear that claimant did incur a work injury
on November 15, 1990 and the parties so stipulated. The
only issue herein is the extent of permanent disability.
There is no issue as to healing period.
Claimant is 49 years old and is at an age in which
impairments and disabilities severely affect one's
opportunity to find work. Claimant is making in excess of
$11 per hour which was the approximate amount he was making
at the time of his November 15, 1990 injury. Considering
claimant's transferable skills, it would be hard for
claimant to find another job at his age with his medical
condition paying that much. As indicated earlier, the
employer is to be congratulated for keeping claimant in
employment and, likewise, the undersigned is sure the
employer realizes its action has a substantial effect on
reducing the extent of claimant's industrial disability. It
appears to the undersigned to be a wise decision on behalf
of the employer. Likewise, the undersigned questions
whether claimant is taking full advantage of the potential
opportunities with defendant employer. At least, the
undersigned believes that claimant should make an effort to
have his name on the list for possible good jobs and to test
the employer's sincerity or desire to accommodate the
claimant in particular bid jobs to see if there would be an
accommodation made. Defendants clearly related various bid
jobs that claimant could, in fact, bid if they became open.
There is a question as to whether claimant has the seniority
to get some of those jobs. The fact is he has done little
or nothing to get his name on the list. Claimant should
spend more time doing that than complaining about the nature
of the work he is doing.
The undersigned finds that claimant does have a
permanent impairment and that he does have rather severe
restrictions, both as far as the lifting limitations and his
ability to climb, twist, bend, stand and sit. Although
claimant has no loss of earnings, he does have a substantial
loss of earning capacity. It seems undisputed he can no
longer do the job he was doing before even with further
accommodations. There is a question as to what other jobs
he may be able to do but as indicated earlier, he has not
made a real effort to test the employer's sincerity in
seeing if they could accommodate him in those jobs. Of
course, there is no evidence that had he bid, he could have
got the jobs based on his seniority. The fact is, he hasn't
tried.
Taking into consideration claimant's work experience
prior to the injury and after the injury; his pre-injury and
post-injury medical history and his present condition; his
education; his qualifications; his transferable skills; his
wages prior to the injury and after the injury; the location
and severity of his injury; his functional impairment; and,
the employer's accommodating claimant, keeping him at the
same wage level as he was at the time of his injury, the
undersigned finds that claimant currently has a 35 percent
Page 10
industrial disability.
Claimant incurred a $390 bill with Dr. Eggers
voluntarily without authorization. Claimant is responsible
to pay that bill.
CONCLUSIONS OF LAW
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.
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.,
Page 11
(Appeal Decision, March 26, l985).
It is further concluded that:
Claimant incurred a 35 percent industrial disability as
a result of a work injury on November 15, 1990.
Claimant's work injury caused claimant to incur
permanent impairment and permanent restrictions.
Claimant is responsible for payment of the $390 bill of
Dr. Eggers as it was without authorization.
ORDER
THEREFORE, it is ordered:
That defendant shall pay unto claimant one hundred
seventy-five (175) weeks of permanent partial disability
benefits at the rate of two hundred eighty and 43/100
dollars ($280.43) beginning October 2, 1991.
That defendant shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid. The record indicates
claimant was not previously paid permanent partial
disability benefits.
That defendant shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendant shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendant 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 November, 1993.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Sheldon Gallner
Attorney at Law
803 third Ave
P O Box 1588
Council Bluffs IA 51502
Mr W Curtis Hewett
Attorney at Law
35 Main Pl
P O Box 249
Council Bluffs IA 51502
5-1803
Filed November 4, 1993
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ROBERT WALKER, :
: File No. 969163
Claimant, :
:
vs. : A R B I T R A T I O N
:
GRIFFIN PIPE PRODUCTS CO., : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant :
:
___________________________________________________________
5-1803
Claimant awarded 35% industrial disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LESLIE FREDERICK ZIMMERMAN, :
:
Claimant, : File No. 969167
:
vs. : A R B I T R A T I O N
:
OWEN INDUSTRIES, d/b/a : D E C I S I O N
MISSOURI VALLEY STEEL, :
:
Self-Insured, :
Employer, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Leslie
Frederick Zimmerman, claimant, against Owen Industries,
Inc., d/b/a Missouri Valley Steel, self-insured employer,
defendant, to recover benefits under the Iowa Workers'
Compensation Act as a result of an injury sustained on
November 29, 1990. This matter came on for hearing before
the undersigned deputy industrial commissioner on August 30,
1993, in Sioux City, Iowa. The record was considered fully
submitted at the close of the hearing. The claimant was
present and testified. Also present and testifying were
Rosemary Zimmerman, claimant's wife; Robert Jacobson;
Patrick Moulton; Gary Klueer; and Larry Monell. The
documentary evidence identified in the record consists of
joint exhibits 1 through 32 and 39 through 69.
ISSUES
Pursuant to the hearing report and order approving same
dated August 30, 1993, the parties have presented the
following issues for resolution:
1. Whether claimant sustained an injury on November
29, 1990;
2. Whether claimant's alleged injury is a cause of
temporary and permanent disability;
3. The extent of entitlement to permanent partial
disability benefits, if any; and
4. Whether claimant is entitled to medical benefits
under Iowa Code section 85.27 for treatment of his alleged
injury.
Page 2
FINDINGS OF FACT
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Claimant was born on August 20, 1948, and completed the
twelfth grade of school. He earned his associate of arts
degree, a general education degree, in 1978 prior to
starting work at Missouri Valley Steel Company. His
relevant work experience was as an over-the-road truck
driver, local delivery driver and warehouse worker
(operating 10-ton overhead crane to load and unload steel),
plate shear operator and various laborer positions. These
jobs ranged from medium to heavy in physical exertion and
were unskilled and semi-skilled in nature. On June 26,
1991, claimant was terminated by employer due to a 20-pound
lifting restriction. He obtained a weekend job with Sioux
City Night Patrol doing general security work and driving a
patrol car to check customer premises. In September 1991 he
obtained employment at Wis-Pak Plastics as an RHB machine
operator.
Claimant alleges that he was injured on November 29,
1990, while working for employer. At that time, he was
earning $8.05 per hour. Claimant currently earns $7.65 per
hour at Wis-Pak Plastics.
Claimant's medical history is replete with a variety of
industrial accidents and alleged injuries. The record
contains 27 first reports of injury, eight of them allegedly
to his neck, shoulder and arms (exhibits 42-68). One such
incident occurred on December 13, 1989, while claimant was
lifting a bundle of steel and felt something pop in his
lower back and experienced a little catch in his right neck
and shoulder region. He was seen by Daniel M. Youngblade,
M.D., the company physician (ex. 18, page 2).
Because of persistent complaints relative to the
December 13, 1989 incident, Dr. Youngblade referred claimant
to Kevin J. Liudahl, M.D., for examination on February 15,
1990. Dr. Liudahl diagnosed acute low back pain and left
sciatica (ex. 5, p. 1). On March 7, 1990, a myelogram and
CT scan were performed. Because the study was inclusive,
repeat studies were performed on April 4, 1990. These
showed slightly larger left posterolateral L3-4 extradural
defects consistent with enlarging L3-4 HNP. On April 27,
1990, Dr. Liudahl performed a left L3-4
hemilaminectomy/diskectomy. A follow-up evaluation on May
18, 1990, revealed continued aches and pains in the lumbar
spine, left hip and legs. An examination showed a
questionable positive straight leg raising and marked
decreased range of motion. Dr. Liudahl commented that
claimant's symptoms were greatly out of proportion to the
clinical findings. He made this observation again on July
19, 1990 (ex. 5, pp. 1-5).
Dr. Liudahl sent claimant to Back Care, Inc., for
evaluation on August 2, 1990. Claimant participated in a
Page 3
13-week rehabilitation program. A myelogram was performed
on September 4, 1990, and was normal. Leonel H. Herrera,
M.D., director of Back Care, reported on September 5, 1990,
that claimant manifested significant objective improvement
without subjective improvement and he was concerned that
claimant had numerous negative subjective complaints (ex.
15, pp. 1-6).
On November 15, 1990, Dr. Liudahl gave claimant a 10
percent permanent partial impairment rating for his back
with a permanent 50-pound lifting restriction (ex. 5, p. 5).
Dr. Herrera concurred with the 50-pound lifting
restriction but no other permanent restrictions (ex. 15, p.
7).
On November 29, 1990, claimant presented to Dr.
Youngblade with tenderness in the right posterior neck
region over the trapezius muscle. Claimant reported to Dr.
Youngblade that he had slipped while climbing up a ladder on
the side of his truck. Cervical spine films were within
normal limits. Dr. Youngblade diagnosed cervical strain.
On December 4, 1990, claimant again presented to Dr.
Youngblade. His complaints were referable to pain and
discomfort in his posterior shoulder region. His neck
appeared to be clear and free. These same complaints were
articulated on December 12, 1990 (ex. 18, p. 3).
Dr. Youngblade referred claimant to Dr. Liudahl on
January 31, 1991, for evaluation of neck and arm problems.
Claimant presented with numbness and weakness in the right
upper extremity and severe neck pain and spasms. An
examination of the neck revealed moderate severe tightness
and tenderness of the cervical paraspinous muscles and
moderate decreased range of motion of the cervical spine.
X-rays of the thoracic and cervical spine were unremarkable.
Dr. Liudahl diagnosed cervical muscle strain. To rule out
cervical radiculopathy, Dr. Liudahl recommended upper
extremity EMG and nerve conduction studies and an MRI of the
cervical spine. He referred him to Ralph Reeder, M.D., for
a second opinion (ex. 5, p. 6).
Claimant underwent an MRI of the cervical spine on
February 5, 1991, which did not identify any foraminal
encroachment (ex. 20-2). EMG and nerve conduction studies
performed on February 1, 1991, revealed no evidence of
mononeuropathy or peripheral neuropathy of the upper
extremities (ex. 15-9).
Dr. Reeder evaluated claimant for neck pain and
bilateral arm discomfort on March 1, 1991. After reviewing
the claimant's medical history and noting his complaints
(pain radiating from the shoulder into the forearms
aggravated by any kind of work activity and neck pain
producing headaches in the occipital region), Dr. Reeder
performed a physical examination. He reported that claimant
had no evidence of a radiculopathy or myelopathy. His
cervical MRI scan showed no significant cord or nerve root
compression. Dr. Reeder felt that claimant had mechanical
cervical pain with radiating arm pain of undetermined
Page 4
etiology which in his opinion did not represent a peripheral
nerve root entrapment. Since claimant was on no pain
medication, Dr. Reeder prescribed Pamelor and Motrin and a
TENS unit for his neck and bilateral arm pain for one month.
He released him from his care to either Dr. Liudahl or Dr.
Youngblade (ex. 21, pp. 1-2).
Claimant returned to Dr. Youngblade on April 2, 1991.
He noted that all objective tests have been negative and no
abnormalities found. Claimant presented with complaints of
pain in the right upper shoulder and neck region with pain
on lateral rotation. Claimant was advised to resume
physiotherapy three times a week (ex. 18, p. 9).
On May 24, 1991, claimant returned to see Dr. Liudahl
still complaining of arm pain, back pain and bilateral leg
pain of recent origin. On examination he had negative
straight leg raising bilaterally, good knee motion and
fairly good range of motion of the neck. He was noted to be
neurologically intact in both upper and lower extremities.
Dr. Liudahl commented that there was a paucity of physical
findings, but suggested bilateral lower extremity EMG and
nerve conduction studies to rule out lumbar radiculopathy
(ex. 5, p. 6).
Claimant returned to Dr. Reeder on May 30, 1991, saying
that he was not really improved and that the TENS unit had
not been helpful. On physical examination he showed good
range of motion of the neck. Dr. Reeder reiterated that
claimant has mechanical neck discomfort with pain radiating
into the shoulder blades and occasionally into the shoulder.
He felt that claimant had reached maximum medical
improvement and gave him a 4 percent permanent partial
disability rating. He imposed a permanent weight-lifting
restriction of 20 pounds (ex. 21, pp. 5-6).
Claimant returned to Dr. Liudahl on June 7, 1991, with
complaints of right upper extremity pain and tenderness in
the cubital tunnel and numbness on the ulnar side of the
hand. Claimant had no neck complaints at this time. Dr.
Liudahl felt that the etiology of claimant's chronic back
and leg complaints could not be determined. X-rays of the
thoracic and cervical spine were unremarkable. He felt that
he had reached maximum medical benefit and recommended no
further medical treatment (ex. 5, p. 6).
Claimant was referred by his attorney to Horst Blume,
M.D., for an independent medical examination on May 18,
1992. Claimant presented with numerous physical complaints
including headaches, lightheadedness, constant pain with a
burning sensation on the right side of the neck-shoulder
junction, numbness in the right forearm and right hand,
little finger and right ring finger, constant irritation and
numbness on the top of the left hand, and constant central
low back pain radiating into both hips. Dr. Blume reviewed
a previous magnetic scan performed on February 5, 1991. It
was his opinion that claimant has a cervical ruptured disc
at C3-4 and a mild ruptured disc at C5-6. However, he felt
this condition did not presently warrant surgical
Page 5
intervention. He gave claimant a permanent partial
impairment rating of 9 percent to the cervical spine area
and 15 percent to the lumbar spine area. Without
distinguishing between the cervical and lumbar spine
restrictions, Dr. Blume indicated that claimant should not
lift more than 40 pounds occasionally or perform any type of
strenuous physical activity. He also felt that claimant was
restricted to 30 minutes of repetitive bending, sitting,
scooping, twisting, turning, crawling, kneeling, pushing,
and pulling and walking or standing for no more than 15
minutes at a time (ex. 24, pp. 1-5).
Claimant testified that when he was hired by Wis-Pak,
his employment status with the company was contingent upon
the 20-pound weight restriction being lifted. On October 5,
1991, Dr. Liudahl increased claimant's lifting restriction
to 45 pounds (ex. 26, p. 4).
The record indicates that claimant received no medical
treatment for his back, neck, upper extremity, or lower
extremity symptoms after his last visit with Dr. Liudahl on
June 26, 1991. On May 11, 1993, claimant returned to Dr.
Liudahl with complaints of left wrist pain. A notation
indicates that "Previous back and neck are presently doing
quite well." (ex. 5, p. 7).
CONCLUSIONS OF LAW
The first issue to be determined is whether claimant
sustained an injury on November 29, 1990, arising out of and
in the course of employment with employer. Since no one
witnessed claimant's alleged injury, defendant questions
claimant's veracity in this regard.
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on November 29,
1990, which arose out of and in the course of his
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904,
908 (Iowa 1976); Musselman v. Central Telephone Co., 154
N.W.2d 128, 130 (Iowa 1967). The words "arising out of"
have been interpreted to refer to the cause and origin of
the injury. McClure v. Union County, 188 N.W.2d 283, 287
(Iowa 1971); Crowe v. DeSoto Consolidated School District,
68 N.W.2d 63, 65 (Iowa 1955). The words "in the course of"
refer to the time, place and circumstances of the injury.
McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. An
injury occurs in the course of the employment when it is
within the period of employment at a place the employee may
reasonably be, and while the employee is doing work assigned
by the employer or something incidental to it. Cedar Rapids
Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa
1979), McClure, 188 N.W.2d at 287; Musselman, 154 N.W.2d at
130.
The supreme court has defined a personal injury for the
purposes of workers' compensation cases. Almquist v.
Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this
case the court found that a personal injury, is an injury to
the body, the impairment of health, or a disease, not
excluded by the Workers Compensation Act, which comes about,
Page 6
not through the natural building up and tearing down of the
human body, but because of a traumatic or other hurt or
damage to the health or body of an employee. The injury to
the human body must be something, whether an accident or
not, that acts extraneously to the natural processes of
nature, and thereby impairs the health, overcomes, injures,
interrupts, or destroys some function of the body, or
otherwise damages or injures a part or all of the body.
The Almquist court further observed that while a
personal injury does not include an occupational disease
under the Workmen's Compensation Act, yet an injury to the
health may be a personal injury. A personal injury includes
a disease resulting from an injury. However, the result of
changes in the human body incident to the general processes
of nature do not amount to a personal injury. This is true,
even though natural change may come about because the life
has been devoted to labor and hard work. Results of those
natural changes do not constitute a personal injury even
though the same brings about impairment of health or the
total or partial incapacity of the functions of the human
body.
Although the work accident was unwitnessed, claimant
reported the event to Dr. Youngblade on November 29, 1990
and to Dr. Liudahl and Dr. Reeder thereafter. Prior to the
incident, claimant was able to perform all of the duties
required of his job with employer. He had no neck
complaints which interfered with his ability to work as a
truck driver for employer. Defendant presented no evidence
to the contrary. Accordingly, claimant has met his burden
of proof that he was involved in a work-related incident
which resulted in injury to his neck and upper extremities.
The next issue to be determined is whether claimant's
injury has caused permanent impairment.
Since claimant has suffered an injury, the next
question to be resolved is whether the injury has caused a
permanent disability. The claimant has the burden of
proving by a preponderance of the evidence that the injury
of November 29, 1990, is causally related to the disability
on which he now bases his claim. Bodish v. Fischer, Inc.,
133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18
N.W.2d 607, 613-14 (Iowa 1945). A possibility is
insufficient; a probability is necessary. Burt v. John
Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa
1955). The question of causal connection is essentially
within the domain of expert testimony. Bradshaw v. Iowa
Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert
medical evidence must be considered with all other evidence
introduced bearing on the causal connection. Burt, 73
N.W.2d at 738. The opinion of the experts need not be
couched in definite, positive or unequivocal language.
Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).
Moreover, the expert opinion may be accepted or rejected, in
whole or in part, by the trier of fact. Sondag, 220 N.W.2d
at 907. Finally, the weight to be given to such an opinion
Page 7
is for the finder of fact, and that may be affected by the
completeness of the premise given the expert and other
material circumstances. Bodish, 133 N.W.2d at 870;
Musselman, 154 N.W.2d at 133. The supreme court has also
observed that greater deference is ordinarily accorded
expert testimony where the opinion necessarily rests on
medical expertise. Sondag, 220 N.W.2d at 907.
Medical opinion rendered as to causation was given by
Dr. Liudahl on June 21, 1993. He reported to claimant's
attorney that "I believe the patient's neck injury is the
result of his accident at work as the patient indicated in
my history of my note. I concur with Dr. Reeder that I
doubt the ulnar neuropathy was related to this accident...."
(ex. 5, p. 14). Defendant has produced no opinion to the
contrary. In fact, Dr. Liudahl is defendant's physician.
Accordingly, claimant has met his burden of proof that his
neck injury is the result of his accident at work.
The extent of permanent disability resulting from the
neck injury must be determined. Dr. Reeder and Dr. Liudahl
gave claimant a 4 percent permanent impairment rating. Dr.
Blume gave claimant a 9 percent permanent impairment rating
to the cervical spine.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
Page 8
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.
As previously noted, claimant earned $8.05 per hour at
the time of his injury with employer. He currently earns
$7.65 per hour as a machine operator with Wis-Pak.
Claimant's actual loss of earnings is minimal. Claimant's
earning capacity is affected by his neck and other
complaints. However, physicians who have treated
and/examined claimant have questioned the extent of his
symptomatology. Dr. Reeder felt that since claimant's
studies were within normal limits and there was no nerve
entrapment evident that his subjective complaints of pain
far exceeded the objective findings. Dr. Liudahl and Dr.
Youngblade were at a loss to determine the etiology of
claimant's numerous complaints. They appear to wax and wane
and even resolve. A recent examination by Dr. Liudahl on
May 18, 1993, again questioned claimant's complaints in
light of the objective findings. On May 11, 1993, Dr.
Liudahl stated that claimant's previous back and neck
complaints were doing quite well (ex. 5, pp. 7-8).
It appears that claimant exaggerates his complaints and
attempts to present as more disabled than he really is.
Pain that is not substantiated by clinical findings is not a
substitute for impairment. Waller v. Chamberlain Mfg., II
Iowa Industrial Commissioner Report 419, 425 (1981); Godwin
v. Hicklin GM Power, II Iowa Industrial Commissioner Report
170 (1981). Pain is not compensable under chapter 85 unless
there is an impact on earning capacity. Benton v. Hyman
Freightways, Review-reopening January 7, 1991. Claimant's
credibility is suspect as to the extent of disability he
proclaims to suffer.
Page 9
After carefully considering all of the factors of
industrial disability and employing agency expertise, it is
determined that claimant is 5 percent industrially disabled.
The next issue to be determined is claimant's
entitlement to benefits under Iowa Code section 85.27.
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Section 85.27; Holbert v.
Townsend Engineering Co., Thirty-second Biennial Report of
the Industrial Commissioner 78 (Review-reopen 1975).
Claimant has the burden of proving that the fees charged for
such services are reasonable. Anderson v. High Rise
Construction Specialists, Inc., file number 850096 (Appeal
Decision July 31, 1990).
Claimant is not entitled to reimbursement for medical
bills unless claimant shows they were paid from claimant's
funds. See Caylor v. Employers Mut. Casualty Co., 337
N.W.2d 890 (Iowa Ct. App. 1983).
When a designated physician refers a patient to another
physician, that physician acts as the defendant employer's
agent. Permission for referral from defendant is not
necessary. Kittrell v. Allen Memorial Hospital,
Thirty-fourth Biennial Report of the Industrial Commissioner
164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
An employer's right to select the provider of medical
treatment to an injured worker should be diagnosed,
evaluated, treated or other matters of professional medical
judgment. Assman v. Blue Star Foods, Inc., file no. 866389
(declaratory ruling, May 18, 1988).
Claimant is entitled to payment of all medical bills
and reasonable and necessary transportation expenses
incurred for treatment of his neck condition.
Page 10
ORDER
IT IS THEREFORE ORDERED:
That defendant pay to claimant twenty-five (25) weeks
of permanent partial disability benefits at the rate of two
hundred thirty and 46/100 dollars ($230.46) commencing May
31, 1991.
That defendant pay for all medical and mileage expenses
incurred for treatment of claimant's November 29, 1990 work
injury.
That defendant receive credit for any benefits
previously paid.
That defendant pay accrued amounts in a lump sum.
That defendant pay interest pursuant to Iowa Code
section 85.30.
That defendant pay costs pursuant to rule 343 IAC 4.33.
That defendant file claim activity reports as required
by the agency pursuant to rule 343 IAC 3.1(2).
Signed and filed this ____ day of September, 1993.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Dennis J. Mahr
Attorney at Law
318 Insurance Centre
507 7th St
Sioux City, Iowa 51101
Mr. Roger L. Carter
Ms. Ruth M. Carter
Attorneys at Law
304 Terra Centre
PO Box 5332
Sioux City, Iowa 51102
51100, 51108, 51803, 52500
Filed September 13, 1993
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LESLIE FREDERICK ZIMMERMAN,
Claimant, File No. 969167
vs. A R B I T R A T I O N
OWEN INDUSTRIES, d/b/a D E C I S I O N
MISSOURI VALLEY STEEL,
Self-Insured,
Employer,
Defendant.
___________________________________________________________
51100
Claimant has shown by a perponderance of the evidence that
he sustained a work-related injury on November 29, 1990,
when he slipped while climbing up a ladder on the side of
employer's truck.
51108
Defendant's physician causally connected claimant's injury
to the incident on November 29, 1990, thus establishing
medical causation.
51803
Claimant found entitled to 25 weeks (5%) permanent partial
disability benefits. At the time of this injury, claimant
earned $8.05 per hour and currently earns $7.65 per hour.
Claimant's complaints appear to be exaggerated and out of
proportion to the clinical and laboratory findings in the
record. Claimant has a long history of industrial accidents
and has reported 27 incidents with minimal objective
findings. Claimant's credibility is suspect as to the
extent of permanency.
52500
Claimant entitled to medical and mileage expenses for
treatment of his November 29, 1990 work injury.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
SHARON TEDFORD, :
:
Claimant, :
:
vs. :
: File No. 969373
CONTEMPORARY INDUSTRIES/ :
7 ELEVEN, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
CONTINENTAL LOSS ADJUSTING :
SERVICES, :
:
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
April 22, 1994 is affirmed and is adopted as the final agency
action in this case.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of September, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Page 2
Copies To:
Mr. Jeffrey A. Neary
Attorney at Law
P.O. Box 3223
Sioux City, Iowa 51102-3223
Mr. G. Daniel Gildemeister
Attorney at Law
P.O. Box 1768
Sioux City, Iowa 51102
5-1803; 5-1801; 2105; 2501
Filed September 27, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
SHARON TEDFORD, :
:
Claimant, :
:
vs. :
: File No. 969373
CONTEMPORARY INDUSTRIES/ :
7 ELEVEN, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
CONTINENTAL LOSS ADJUSTING :
SERVICES, :
:
Insurance Carrier, :
Defendants. :
_________________________________________________________________
5-1803; 5-1801
Claimant failed to prove compensable permanent or temporary
disability.
2105; 2501
It is irrelevant that medical expenses were accrued after
insurance coverage ended, as workers' compensation insurance is
not sold on a "claims made" basis. Section 85.27. Provides for
lifetime medical coverage, so long as treatment is reasonable,
necessary and causally related to a compensable injury.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
SHARON TEDFORD, :
:
Claimant, :
:
vs. :
: File No. 969373
CONTEMPORARY INDUSTRIES/ :
7 ELEVEN, A R B I T R A T I O N
:
Employer, D E C I S I O N
:
and :
:
CONTINENTAL LOSS ADJUSTING :
SERVICES, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
STATEMENT OF THE CASE
This is a contested case proceeding upon the petition
of Sharon Tedford against her former employer, Contemporary
Industries/7 Eleven, and its insurance carrier Continental
Loss Adjusting Services. Ms. Tedford contends that on
December 20, 1989, she sustained a repetitive motion injury
to her hands, arms, shoulders, neck and head.
A hearing was scheduled and held in Sioux City, Iowa on
January 27, 1994. The record consists of claimant's
exhibits 1-17, 19-23 and 25-28, defendants' exhibits A-F and
the testimony of claimant and Marie Meyers.
ISSUES
The parties have stipulated to the following:
1. An employment relationship existed at
the time of the alleged injury;
2. Claimant was off work from February 22,
1992 through November 24, 1992, for which
she claims entitlement to healing period
benefits;
3. At the time of injury, claimant's gross
weekly earnings were $178.71, she was single
and entitled to three exemptions; and,
4. Fees or prices charged by medical
providers are fair and reasonable and,
although disputed, those providers would
testify to the reasonableness of treatment;
Page 2
defendants offer no contrary evidence.
Issues presented for resolution include:
1. Whether claimant sustained injury
arising out of and in the course of
employment;
2. Whether the injury caused either
temporary or permanent disability;
3. The extent of temporary total disability
or healing period;
4. The nature, extent and commencement date
for permanent partial disability, if any;
5. Entitlement to medical benefits,
including whether treatment is causally
connected to the work injury and to the
medical condition upon which the claim is
based; and,
6. Whether permanent impairment, if any, is
related to a subsequent cumulative trauma
injury incurred after the date Continental
Loss Adjusting Services' insurance coverage
ceased (September 1, 1991).
Based on claimant's stipulated gross weekly earnings,
marital status and number of exemptions, the parties
calculated her weekly compensation rate at $124.97. The
rate tables published by the commissioner in effect on
December 20, 1989 show that an individual so situated is
entitled to a rate of $125.55, which is hereby adopted as
the correct compensation rate.
Defendants sought to dispute whether medical expenses
were authorized. The defense was ruled invalid at trial
because defendants have denied liability on the claim,
thereby forfeiting the right to control the course of
treatment.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
Sharon Tedford, born June 14, 1960, is a high school
graduate without further education. Before accepting work
as a convenience store clerk with defendants, she was
employed in a fried chicken restaurant, part time at a local
dog race track, and for a garment manufacturer. Claimant
was discharged from the restaurant and garment manufacturer
upon respective allegations of theft (unproven) and poor
work performance. From 1982 or 1984 (trial and deposition
testimony vary) until 1989, claimant was out of the
competitive labor market, caring for her children.
Unfortunately, claimant was for several reasons not
found a credible witness in her own behalf. Her trial
Page 3
testimony was frequently inconsistent with her deposition
testimony and the medical records. She gave inconsistent
histories to various physicians. In a verified petition,
she alleged permanent injury resulting from an unrelated
slip and fall, although she now testifies that she knew even
then that no permanent injury had resulted. The large
number of inconsistencies and incongruities convinces that
her testimony is not reliable.
Claimant started work with defendant on July 19, 1989,
after having been away form the competitive labor market
some 5-7 years. Her duties as a full time convenience store
clerk included operating the cash register, stocking
shelves, sweeping the store and picking up the parking lot.
It is this work that she claims resulted in a repetitive
trauma injury some five months later on December 20.
Actually, claimant's work as a convenience store clerk
appears to be almost the antithesis of "repetitive motion"
as that term is commonly understood. In such cases, one
ordinarily thinks of workers such as a meat cutter boning
the same cuts endlessly in a packing house, a data entry
operator at a key board, or a factory worker tightening the
same screws on the same part for hour after hour.
Claimant's work, on the other hand, involved frequent use of
the upper extremities, but not in a typically repetitive
fashion. For example, operating the cash register would
normally include handling the products (to find the price),
punching the appropriate buttons and making change. While
these actions require use of the hands, different muscles
are manipulated in different ways. Similarly, sweeping the
floors, picking up the parking lot and stocking shelves are
not classic "repetitive" movements.
Dr. Tim Luse, a treating chiropractor, reported that
claimant had not had "prior injury that caused similar
symptoms to those is now experiencing." The same report
(November 24, 1992) specifies:
After the accident, the patient exhibited the
following complaints and symptoms: "Pain in the
right and left hand, wrist, elbow and thumb and
also pain in the neck and shoulder area,
especially the right shoulder."
In her answers to interrogatories, Ms. Tedford alleges
injuries consisting of carpal tunnel syndrome, tendinitis,
fibromyalgia, headaches and pain. Complaints "for which
claim is being made" include "headaches, pain in arms, neck,
shoulders, upper back area, sleeping problems, weakness,
pain reaches level of nausea."
Prior to the claimed work injury, claimant was actively
treating with another chiropractor, Kenneth L. Todd, D.C.
Indeed, Dr. Todd's chart notes reflect that claimant was
seen some 41 times between August 10, 1987 and the claimed
injury, including 22 prior visits in calendar year 1989.
Some of Dr. Todd's chart notations are inconsistent with a
claim that similar symptoms did not preexist the work
injury:
Page 4
08-10-87 headaches
09-08-87 upper thoracic pain, headaches
09-22-87 headaches-severe
10-05-87 neck and upper back pains, headaches
10-22-87 headache
11-04-87 headache-severe
01-08-88 headaches
03-09-87 "you name it, it hurts"
03-17-88 pain all over
04-22-88 pain in neck and back
06-09-88 shoulder/neck
07-27-88 neck and back
11-03-88 neck, back, heads
01-03-89 shoulder and upper back pain
02-28-89 "you name it, it hurts"
03-15-89 upper back and neck
07-25-89 neck
07-27-89 left shoulder pain
08-03-87 shoulder pain
08-19-89 right shoulder pain
08-21-89 right shoulder
09-25-89 general ache and pain
10-09-89 general ache and pain
10-23-89 neck, upper back
In deposition testimony of October 28, 1993, claimant
described her work injury thusly:
Q. Okay. And in that report Dr. Tim Luse
states in essence that in December of 1989 you
were involved in a work-related accident and that
you were pulling pop out of a crate, 20-ounce
bottles, and hurt your right and left wrists and
right and left elbows. Is that a true statement?
A. Yes.
Q. Can you describe your work-related accident
in your own words for us, please.
A. Stocking cooler. the Coke bottles do come
in plastic domes. You have to take them out of
the plastic domes and stock them singly. That's
when I noticed from pulling is when it started all
happening.
Q. Okay. Did you notice any kind of a popping
or pulling or painful sensation when you did that?
A. Popping in the wrist.
. . .
Q. Dr. Luse's report also says that after this
accident that you had complaints of pain in your
hands, wrists, elbows, and thumb. Also pain in
your neck and right shoulder. Is that true?
Page 5
A. Yes.
Q. Okay. Was that right after this accident
happened then?
A. Not right after the accident.
Q. Describe that course of events, please.
A. I went to see Dr. Pechacek, Dr. Wheeler.
Dr. Wheeler turned me back to work and told me it
would work -- the tendinitis would work its way
out. When I became manager, it got worse, and it
went up into my neck and into my shoulders.
Q. Okay. Is it a fact, then, that as far as
any pain that you had in your neck or your
shoulder that that did not occur until after you
were appointed manager?
A. Right.
Q. So that would have been some five or six
months after this accident?
A. Right.
. . .
Q. So do I understand you to say that you had
pain in your right thumb and your hand and your
wrist immediately after the events of pulling the
pop out of plastic domes on the same day that you
were hurt?
A. I didn't say immediately.
Q. Tell me when.
A. It worked up to -- From doing it constantly
day after day, it worked up to it.
Q. You said you felt a popping in your wrist?
A. Yes, I did.
Q. Okay. On the day that you felt the popping
in your wrist, where were your complaints of pain?
A. In my hand. Right through my right hand
into the wrist.
Q. So your complaints the first day were your
hand and your wrist?
A. Right.
Q. Then a couple months later you had pain in
your right elbow?
Page 6
A. Yes.
Q. And then several months after that you
developed pain in your right shoulder and your
neck?
A. Yes.
Q. Okay. Were there any other complaints of
pain during this period of time that you had?
A. My left elbow?
Q. when did that begin to hurt you?
A. After I was favoring my right hand, I used
my left arm more.
(Claimant's Deposition, Pages 21-25)
In her trial testimony, claimant reported that shoulder
and neck symptoms developed only in October 1992, almost
three years after the claimed injury and eight months after
she quit the job.
The first practitioner claimant saw for problems
developing on December 20 was Dr. Todd, seen that very day.
Although largely illegible, Dr. Todd's chart notes appear to
refer to left hand pain, diagnosed as tendinitis. On
January 8, 1990 (eight visits later), Dr. Todd charts
complaints of right elbow pain. On January 17, he charts
complaints of left hand pain. On February 9, he charts left
elbow pain.
Claimant was next seen by Daniel Rhodes, M.D., her
family physician. On January 5, 1990, Dr. Rhodes charted
complaints of pain in the right arm which he diagnosed as
mild tendinitis of the right forearm with epicondylitis
Page 7
(commonly known as "tennis elbow"). Claimant was treated
with ibuprofen and a tennis elbow band.
Dr. Rhodes continued treating claimant for tendinitis
and epicondylitis until March, then again starting in
September. Curiously, he charted on February 27 that
claimant's right arm was no better, and she "says that she
knows it won't get better."
Dr. Rhodes eventually (February 24, 1992) reached a
diagnosis of epicondylitis, which should resolve in time,
and fibromyalgia. He believed the epicondylitis was work
related, but specified that fibromyalgia was not. In his
medical report of that date, and also in chart notes, he
notes that claimant had quit her job of her own volition on
February 22, 1992. He went on to specify that he had not
advised her to quit work.
Dr. Rhodes also referred claimant to Dr. Pechacek, for
treatment of epicondylitis. Claimant was seen on several
occasions between March and July 1990. Dr. Pechacek's first
notes, on March 12, reflect that claimant was unable to
recall any specific injury and was not particularly aware of
or bothered by any painful areas while working, but more
when at rest. He specified that claimant did not mention
any clicking, popping or snapping of the elbow, wrist or
finger joints. Impression was of "mostly musculo-tendinous"
right arm and hand pain extending from the elbow to the
wrist while at rest. Dr. Pechacek saw no indications for
surgery, anti-inflammatories or physical therapy, and would
recommend that claimant continue to use her arm and hand as
normally as possible. "Would not modify her job." A pain
medication, Darvocet, was prescribed. After claimant
reported not reacting well to that medication,
over-the-counter Tylenol was recommended.
By June 11, Dr. Pechacek reported that claimant still
had symptoms in the right wrist and hand, but was no longer
suffering pain into the forearm and elbow. Although he felt
this pain was probably musculo-tendinous, some findings
suggested possible carpal tunnel syndrome. However, EMG and
nerve conduction studies were normal.
Dr. Pechacek apparently then moved from the locality,
after which claimant was seen by M. E. Wheeler, M.D. When
Dr. Wheeler saw claimant on August 20, his impression was of
an overuse tendinitis problem in the arm of insidious onset
without precipitating cause or event, although claimant
related it to work with "repetitive motion." Dr. Wheeler's
chart notes of September 24, 1990, reflect complaints in the
arm and wrist with "several incongruent findings today."
Dr. Wheeler noted he had little to offer claimant and
released her to activities as tolerated.
Claimant saw Dr. Rhodes on several occasions in October
1990, the last time on October 29. She was not working at
that time, although she reported that she wanted to return.
Dr. Rhodes charted: "I added the comment if as minimal
requirements of right arm, she may try work, but if it
flares up, she should quit. We will see her again in 10
Page 8
days." This comment is interpreted as referring to a
temporary time off work, not advice to quit the job.
Claimant was seen again on November 8, but the only chart
notes concern an unrelated sore throat complaint.
Claimant was seen by no physician from October 29, 1990
until visiting Chiropractor Tim Luse about one year later.
Dr. Luse concluded that claimant received an injury "as
a result of this accident," (referring to pulling pop
bottles out of a crate) and eventually diagnosed chronic
bilateral carpal tunnel syndrome and chronic "epilateral
condylitis" (this diagnosis is unfamiliar to the writer, but
may be intended to refer to lateral epicondylitis).
Impairment was apparently converted to the body as a whole,
and rated at fifteen percent. Severe chiropractic
restrictions were recommended, including restrictions
against crawling and climbing ladders or lifting over 20
pounds.
A chiropractic report was also issued on April 26, 1993
by Pat Luse, whose license to practice chiropractic has
apparently now been suspended or revoked. In any event, he
diagnosed chronic bilateral forearm tendinitis and
fibrositis and chronic cervical strain/sprain "consistent
with the repetitive injury described by the patient" and
rated impairment at five percent of each upper extremity.
Dr. Luse does not detail how cervical problems manifesting
themselves in October 1992 could be causally related to a
right wrist injury of December 1989. However, he may have
been misled by the inaccurate history cited by Tim Luse,
apparently a relative. Both chiropractors share the same
address.
In April 1991, claimant was promoted to store manager.
She continued until quitting the job on February 22, 1992.
Although claimant testified both that she did so upon the
advice of Dr. Luse, and that she furnished a letter to that
effect to her employer, neither Dr. Luse's records or
defendants' records confirm this claim. According to Marie
Meyers, a 7 Eleven area manager, the work claimant was doing
fit within the restrictions previously recommended by Pat
Luse.
Claimant was also seen several times for fibromyalgia
in 1992 by Niles Erikson, M.D. Dr. Erikson found multiple
fibromuscular tender points in typical fibromyalgic
distribution in both upper extremities, the upper back, the
occiput, the anterior chest, lateral elbows and lumbosacral
musculature. Fibromyalgia is understood as referring to a
condition of generalized pain syndrome. Dr. Erikson is not
shown to have expressed a view on causation, but it is noted
that claimant was released to continue activity as tolerated
on October 21, 1992.
Claimant was also evaluated on September 28, 1993 by J.
Michael Donohue, M.D., an orthopedic specialist. Dr.
Donohue, who found a number of inconsistencies in claimant's
physical evaluation, reached an assessment of "bilateral
upper extremity dysfunction--subjective complaints far
Page 9
outweigh the objective findings." He concluded that carpal
tunnel syndrome was definitively ruled out by the normal EMG
and nerve conduction studies, disagreed with the diagnosis
of fibromyalgia and concluded that claimant had not
sustained any permanent impairment from her alleged work
injury:
It is possible that the patient initially
sustained some soft tissue inflammation from her
work activities: however, she has certainly been
allowed an adequate period of time for healing and
at this point, demonstrates findings of symptom
magnification rather than specific organic
pathology.
Based on the foregoing medical opinion, it is concluded
that claimant developed epicondylitis from her
non-repetitive upper extremity movements at work, but that
the condition has not caused permanent impairment. She does
not suffer carpal tunnel syndrome and fibromyalgia, if it
exists at all, is not work related pursuant to the opinion
of Dr. Rhodes. The chiropractic opinions of record are
based on an inadequate history and come from less qualified
practitioners. Claimant's history of headaches has been
shown to precede the claimed work injury, or even the
beginning of claimant's employment with 7 Eleven. Neck and
shoulder problems also predate the claimed work injury and
serious complaints did not appear until almost three years
later. No causal nexus to the 1989 injury is shown.
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 alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
Page 10
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).
Of Ms. Tedford's numerous complaints, only the early
tendinitis and epicondylitis problems are causally related
to her work. Neither have been shown to cause permanent
disability or, for that matter, temporary disability
subsequent to February 22, 1992, when she voluntarily quit
employment, a decision not based on medical advice or
necessity.
Medical expenses are a different question, though.
Claimant has submitted a list of disputed billings from nine
separate providers totalling $7,658.13. Most of these date
to 1992 and 1993, and are not causally related to the
original 1989 injury.
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Section 85.27. Holbert v.
Townsend Engineering Co., Thirty-second Biennial Report of
the Industrial Commissioner 78 (Review-reopen 1975).
It will be recalled that the parties stipulated that
fees or prices charged by providers are fair and reasonable,
and that those providers would testify in the absence of
contrary evidence to the reasonableness of treatment,
although the issue remains disputed. Based on this
stipulation, it is held that treatment was reasonable and
necessary and that prices charged are fair and reasonable.
Causal connection to the initial injury remains disputed.
Defendants' effort to dispute authorization of these
expenses has already been ruled invalid. Defendants also
assert in their brief that certain expenses were accrued
after insurance coverage was no longer provided. This, of
course, is irrelevant. Coverage is not on a "claims made"
policy. Rather, once liability for a compensable work
injury is established, as here, claimant is entitled under
section 85.27 to lifetime medical care so long as she can
establish that it is reasonable, necessary and causally
related to the initial injury.
Billings of the Nebraska Chiropractic & Nutrition
Clinic (Drs. Luse) include treatment for carpal tunnel
syndrome, cervical strain, headaches, and even a thoracic
sprain caused a totally unrelated slip and fall in January
Page 11
1991. Claimant fails to establish causal nexus between
these bills and the work injury.
The Internal Medicine bill of December 22, 1993 appears
to relate to shoulder complaints and biceps complaints.
Neither are shown causally connected.
The Internal Medical Associates' billings through April
1993 apparently are related to the care of Dr. Erikson,
which was primarily for fibromyalgia. Fibromyalgia has not
been shown to be caused by the claimed work injury.
The PSI Health Care, Inc., bill totalling $992.66
relates to treatment of unknown type from June 1992 through
January 1993. The evidence fails to show the nature of this
treatment, so it cannot be determined causally related to
the work injury.
The St. Lukes Medical Center's bills of $107.70 and
$69.50 were accrued in 1992 and fail to show the nature of
treatment. Causal nexus is not established.
The Walgreen's bills in 1992 and 1993 relate to
prescriptions ordered by Dr. Erikson, whose treatment for
fibromyalgia has not been shown causally related.
The Sioux City Neurology Neurosurgery bill totalling
$819.00 apparently relates to EMG and other testing at the
request of Dr. Luse. Dr. Luse's services are not shown
causally related.
The Northwest Iowa Orthopaedics & Sports Center bill of
$25.00 relates to a recheck exam in January 1992 upon the
referral of Dr. Wheeler. Dr. Wheeler's care has been shown
causally connected to the work injury. Defendants shall pay
this bill.
ORDER
THEREFORE IT IS ORDERED:
Defendants shall pay the Northwest Iowa Orthopaedics &
Sports Center bill totalling twenty-five and no/100 dollars
($25.00).
No weekly benefits are awarded.
Costs are assessed to defendants.
Signed and filed this ____ day of April, 1994.
________________________________
DAVID RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Page 12
Copies To:
Mr Jeffrey A Neary
Attorney at Law
PO Box 3223
922 Douglas Street
Sioux City Iowa 51102
Mr G Daniel Gildemeister
Attorney at Law
400 Firstar Bank Building
PO Box 1768
Sioux City Iowa 51102
5-1803; 5-1801; 2105; 2501
Filed April 22, 1994
DAVID RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
SHARON TEDFORD, :
:
Claimant, :
:
vs. :
: File No. 969373
CONTEMPORARY INDUSTRIES/ :
7 ELEVEN, A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
CONTINENTAL LOSS ADJUSTING :
SERVICES, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
5-1803; 5-1801
Claimant failed to prove compensable permanent or temporary
disability.
2105; 2501
It is irrelevant that medical expenses were accrued after
insurance coverage ended, as workers compensation insurance
is not sold on a "claims made" basis. Section 85.27.
Provides for lifetime medical coverage, so long as treatment
is reasonable, necessary and causally related to a
compensable injury.