BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LORRI BLAIR,
Claimant, File No. 970512
vs. A P P E A L
MERCY MEDICAL CENTER, D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal.
The issue on appeal is: Did the claimant sustain an injury
which arose out of and in the course of employment August
13, 1990?
FINDINGS OF FACT
Claimant alleges she was injured while moving a patient at
work on August 13, 1990; employer denies claimant was
injured at work but instead contends claimant sustained her
injury at home on August 15, 1990. (Please note that unless
otherwise indicated all dates appearing in this decision are
in 1990.) In ultimately resolving the questions of fact and
law that are present in this contested case, the issue
involving the claimant's credibility or lack thereof is
crucial. For reasons that will be reviewed and discussed in
this appeal decision, the industrial commissioner finds the
claimant is not a credible witness.
Claimant was employed by defendant employer, Mercy Medical
Center, from March 5 until a few days after the alleged work
injury of August 13. The claimant worked as a registered
nurse.
On August 13 the claimant was working the 3:00 p.m. to 11:30
p.m. shift. She was instructed to work in zone 41, a
medical floor that included patients who were unable to care
for themselves. (Transcript, pages 53-54)
On her work shift of August 13 the claimant was caring for a
stroke patient who needed to be turned in his bed every two
hours. At approximately 4:00 p.m. the claimant determined
it was time to turn this patient. The record is somewhat
unclear as to the actual number of nurses who assisted the
claimant in turning this patient, but for purposes of this
decision suffice it to say at least one other nurse assisted
the claimant. (Tr., pp. 54-55, 101)
The claimant described the procedure used in turning the
Page 2
patient and the industrial commissioner finds the claimant's
description of the procedure (Tr., p. 55, l. 18 through p.
57, l. 17) to be factually accurate.
During the course of turning the stroke patient the claimant
alleges she was injured. The claimant describes the onset
of symptoms as follows:
Q. What happened as you were turning the patient on August
13, 1990?
A. I felt a pull in the back of my neck and shoulder area
on the left side and that started when we were turning this
patient, and it continued to get worse as my shift went on.
(Tr., p. 57)
By the end of the August 13 work shift the claimant alleges
she was sore and having pain that she describes as follows:
Q. Where were you having pain?
A. Through the -- oh, I'd say the back of my neck, but it's
the shoulder area, up the back part of my neck. I know
everybody says I motion to the front, but I can't get to the
back. This general area on the back side, my shoulder, up
my neck a little bit.
Q. And you're indicating on the left side?
A. On the left side, correct.
Q. And what was the pain sensation like?
A. It was pain. It was abnormal. It was pain that I hoped
would go away.
(Tr., p. 58, l. 23 through p. 59, l. 9)
On direct examination the claimant was questioned as to
whether she told anybody at Mercy Medical Center on August
13 about the pain she was experiencing during her work
shift. The claimant responded:
A. I believe I told the nurse that I was working with that,
you know, this really kind of hurts and its bothering me
more throughout the shift, and I believe I told either the
house supervisor or the supervisor on the floor, and I don't
know who those people were.
(Tr., p. 59, ll. 13-18)
On cross-examination the claimant again was unable to name
any of the individuals to whom she allegedly reported the
injury. (Tr., p. 101)
In addition to claimant's inability at hearing (held on
December 1, 1993, some three years after the date of the
alleged injury) to name the individuals to whom she reported
her injury on August 13, it is worth noting that only one
month after the alleged injury the claimant was unable to
recall the names of any individuals to whom she reported her
injury on August 13. (See Employer's Exhibit C, a statement
given by claimant on September 13, 1990, to Carol Bowden, a
representative of United Fire & Casualty Co.)
Claimant's deposition and trial testimony that she reported
the work incident to supervisors on August 13 is clearly
inconsistent with her own earlier written account. Joint
Page 3
Exhibit 3 is an incident report filled out by the claimant.
(Tr., p. 124, l. 25 through p. 126, l. 11) Toward the upper
right hand corner of the exhibit appears the following:
"Time/Date Supervisor Notified." In her own handwriting
claimant responded: "8/16/90 Eve. Shift."
In the event of a work injury, normal procedure at Mercy
Medical Center requires the injured employee to report the
injury to a supervisor, fill out an incident report and be
seen at the trauma center. The supervisor to whom the
injury is reported is then required to note the incident in
writing in a nursing service report. Claimant did not
submit an incident report until August 16. (Joint Exhibit
3) Even though the claimant could not recall the names of
any of the individuals to whom she reported her injury, and
even though the claimant failed to timely submit an incident
report, the claimant's verbal communication to a supervisor
should have resulted in the work incident being noted in a
nursing service report on August 13. The alleged injury of
August 13 does not appear in a nursing service report until
August 15. (Jt. Ex. 1)
Claimant believes she telephoned Mercy Medical Center on
August 14 and spoke with Suzanne Landsverk, staffing
secretary. Claimant contends she either asked for the day
off or asked for light-duty assignment. (Tr., p. 60)
Claimant contends she was told she absolutely had to come to
work because the hospital was short-handed. (Tr., p. 61)
Claimant contends she told Landsverk during this telephone
conversation that she had hurt herself the previous work
shift while lifting the stroke patient. (Tr., p. 62) The
industrial commissioner finds the claimant did not have a
telephone conversation with Landsverk on August 14. Rather,
it is found the claimant's telephone conversation with
Landsverk occurred on August 15. (Tr., p. 20) (Findings
regarding this August 15 telephone conversation will appear
later in this decision.) The claimant worked her scheduled
shift on August 14.
While at home on the morning of August 15 the claimant was
putting away dishes and while lifting a small glass dish
felt a pop in the back of her neck in the same area as the
alleged August 13 work injury. Claimant described the
feeling as much worse than the alleged August 13 work
injury, with some numbness and tingling in the left shoulder
and arm. (Tr., pp. 64-65)
Before the beginning of her work shift on August 15 the
claimant telephoned Landsverk and reported she could not
come to work because she had injured her neck pulling up a
patient at work and also injured herself at home while
reaching in a cupboard. (Tr., p. 16) The industrial
commissioner finds that it was during this telephone
conversation that the claimant first reported a work injury
to anyone at Mercy Medical Center. Later that same day
claimant telephoned Landsverk saying she would try to come
in to work that day. Landsverk told claimant she would try
to get her light duty work. Claimant worked light duty on
Page 4
August 15 but had to leave work early because she could not
tolerate the pain.
The claimant first sought medical treatment for her injury
on August 16 at Mercy Care North and was seen by Dr.
Stuelke. In a notation dated August 16 Dr. Stuelke states:
"S. [subjective] felt something pop in neck yesterday. Now
pain down left arm." (Employer's Exhibit A, p. 2) Again,
the doctor's notation is dated August 16 and makes reference
to "yesterday" (emphasis added), meaning August 15.
Further, Dr. Stuelke indicates the following: "Onset of
injury 8/15/90 A.M." (emphasis added). (Em. Ex. A, p. 1)
The morning of August 15 is the time and date the claimant
admits she felt a pop in the back of her neck while putting
away dishes at home. The industrial commissioner finds the
claimant never reported any injury to Dr. Stuelke on the
visit of August 16 other than the incident that occurred at
home on August 15.
Still referring to Dr. Stuelke's notes, the reader's
attention is directed to Employer's Exhibit A, p. 3. A-3
shows the same August 16 notation that appears at A-2, but
has an additional sentence appearing at the bottom of the
page that reads: "Patient states she was pulling a patient
up in bed." Claimant admits that this sentence was added
because she stopped by Dr. Stuelke's office some time after
August 16 and asked that the additional sentence be added.
(Tr., pp. 119-120) Clearly, Dr. Stuelke had not made such a
notation at the time of the claimant's visit on August 16.
To reiterate, the industrial commissioner finds that A-2
accurately reflects the information claimant provided Dr.
Stuelke on August 16, i.e., "S. felt something pop in neck
yesterday. Now pain down left arm."
REASONING AND CONCLUSIONS OF LAW
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
In the instant case there is no evidence corroborating
claimant's contention that she was injured while lifting a
patient on August 13. While the lack of corroborative
evidence is not necessarily fatal to claimant's position,
when considered with other facts present in this record it
is very disquieting to this trier of fact:
1. Claimant contends she reported her injury to
co-worker(s) and supervisor(s) on August 13, but cannot name
even one of the individuals to whom she reported the injury.
Standing alone, claimant's inability to name any individual
to whom she reported the injury is highly suspicious
although not fatal to her burden of showing by a
Page 5
preponderance of the evidence that she sustained an injury
arising out of and in the course of her employment.
2. Claimant contends she reported her injury to
co-worker(s) and supervisor(s) on August 13, but when
filling out an incident report she, in her own handwriting,
stated she reported the work injury to a supervisor on the
evening shift of August 16. The inconsistency between
claimant's sworn testimony and documentary evidence in the
claimant's own handwriting is indeed very disturbing to this
trier of fact.
3. The claimant contends she reported her injury to
co-worker(s) and supervisor(s) on August 13, yet the
supervisor to whom the claimant allegedly reported her
injury on August 13 failed to note the work injury and
reporting thereof in a nursing service report, thereby
acting contrary to normal procedure. Remember, even though
the claimant allegedly cannot name the individuals to whom
she reported the injury, the injury and reporting thereof
should still be corroborated by documentary evidence, i.e.,
a nursing service report. The first mention of the alleged
work injury does not appear in a nursing service report
until August 15, which of course is the very date the
claimant admits being injured while at home. Based upon the
evidence in this record, the industrial commissioner
believes it is very doubtful that claimant could have been
injured while working with others and have reported such
injury during the same shift without claimant being able to
produce corroborating evidence.
4. Claimant first seeks medical treatment on August 16
and provides Dr. Stuelke with information that is clearly
consistent with a finding that her injury was sustained at
home on the morning of August 15. When seeing Dr. Stuelke
on August 16 the claimant makes no mention of a work injury
or onset of injury on August 13.
Taking all of this evidence into consideration, the
industrial commissioner does not believe the claimant
sustained an injury while at work on August 13: The
claimant cannot name even one individual to whom she
reported the injury on August 13. There is no nursing
service report prior to August 15. Claimant mentions
nothing to Dr. Stuelke about an August 13 work injury. Dr.
Stuelke's medical report refers to the morning of August 15
as the onset of injury. The claimant filled out an incident
report on August 16 indicating therein that she first
reported the injury to a supervisor on that same date. The
claimant waited until August 15 to first report an injury
(see findings of fact regarding claimant's telephone
conversation with Suzanne Landsverk).
In addition to the foregoing reasons for finding the
claimant has failed to establish by a preponderance of the
evidence that she sustained a work injury on August 13,
please note the claimant's testimony on crucial points
frequently consists of "I don't know" or "I believe" type of
responses. (See, e.g., Tr., p. 59, l. 10-18; Tr., p. 60, l.
Page 6
21-24; Tr., p. 98, l. 23 through p. 99, l. 4; Tr., p. 116,
l. 4-17) These type of responses, especially when viewed in
light of the many inconsistencies in the claimant's
testimony, certainly do not bode well for the party having
the burden of proof.
When reviewing a deputy industrial commissioner's
findings of fact the industrial commissioner gives deference
to credibility findings based on demeanor. However, as
previously discussed, the record in the instant case is
replete with matters that adversely reflect on claimant's
credibility. For all of the foregoing reasons, the
industrial commissioner finds the claimant is not a credible
witness and concludes the claimant has failed to establish
by a preponderance of the evidence that she sustained an
injury arising out of and in the course of her employment
with Mercy Medical Center on August 13, 1990.
WHEREFORE, the decision of the deputy is reversed.
ORDER
THEREFORE, it is ordered:
That claimant shall take nothing from these proceedings.
That claimant shall pay the costs of the appeal including
the transcription of the hearing.
Signed and filed this ____ day of July, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Thomas J. Currie
Attorney at Law
P.O. Box 998
Cedar Rapids, Iowa 52406
Mr. Jack C. Paige
Mr. David A. Elderkin
Attorneys at Law
P.O. Box 1968
Cedar Rapids, Iowa 52406
1402.10
Filed July 29, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LORRI BLAIR,
Claimant, File No. 970512
vs. A P P E A L
MERCY MEDICAL CENTER, D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
1402.10
Claimant failed to prove that a work injury occurred.
Claimant alleged that she hurt herself while turning a
patient. She testified that she told co-employees of the
incident but was unable to name the individuals either at
the time of the hearing or one month after the alleged
incident. The date she testified she told her supervisors
was inconsistent with her own written account. Claimant's
report of a work incident and her medical treatment followed
a non-work incident. Claimant's report of a work incident
to her doctor was added as an addendum to the doctor's notes
sometime after the doctor had made original notes.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LORRI BLAIR, :
: File No. 970512
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
MERCY MEDICAL CENTER, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Lorri
Blair, claimant, against Mercy Medical Center, self-insured
employer, hereinafter referred to as Mercy, defendant, for
workers' compensation benefits as a result of an alleged
injury on August 13, 1990. On December 1, 1993, a hearing
was held on claimant's petition and the matter was
considered fully submitted at the close of this hearing.
The parties have submitted a hearing report of
contested issues and stipulations which was approved and
accepted as a part of the record of this case at the time of
hearing. The oral testimony and written exhibits received
during the hearing are set forth in the hearing transcript.
According to the hearing report, the parties have
stipulated to the following matters:
1. An employee-employer relationship existed between
claimant and Mercy at the time of the alleged injury.
2. Claimant is seeking temporary total or healing
period benefits from April 6, 1991.
3. At the time of injury claimant's gross rate of
weekly compensation was $431.68; she was married; and she
was entitled to two exemptions. Therefore, claimant's
weekly rate of compensation is $270.74 according to the
Industrial Commissioner's published rate booklet for this
injury.
4. It was stipulated that the providers of the
requested medical expenses would testify as to their
reasonableness and defendant is not offering contrary
evidence.
Subsequent to the hearing, defendant filed a motion to
reopen the record due to the discovery of other evidence
Page 2
allegedly having relevance to the extent of claimant's
current disability. Given the holding in this case that
claimant has not as yet reached maximum healing and that an
evaluation of permanent disability at this time is
premature, this motion is denied as moot.
ISSUES
The parties submitted the following issues for
determination in this proceeding:
I. Whether claimant received an injury arising out
of and in the course of employment;
II. The extent of claimant's entitlement to
disability benefits; and,
III. The extent of claimant's entitlement to medical
benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
A credibility finding is necessary to this decision as
defendant placed claimant's credibility at issue during
cross-examination as to the nature and extent of the injury
and disability. From her appearance, demeanor and
mannerisms while testifying, claimant is found credible.
Claimant worked for Mercy as a registered nurse from
March 1990 until a few days after the work injury herein.
She briefly returned part-time on a trial basis in February
1991 but could not continue due to continuing symptoms. The
job at Mercy primarily consisted of patient care.
On or about August 13, 1990, claimant suffered a injury
while moving a heavy patient lying on a bed. She began to
experience neck and left shoulder area pain. This pain
continued to get worse but she completed her shift. The
next day her pain continued and she attempted to call in
sick but was told she was needed. Claimant then reported
for work but was given light duty. Defendant has made much
of a report by claimant of symptoms following lifting a
small dish at home before she called in. However,
claimant's account that this incident at home, although
causing symptoms, was relatively minor as compared to the
patient incident is believed. For the most part, claimant's
account of the events at work is verified by incident
reports and the nursing staff records possessed by
defendant.
The injury is found to be a thoracic outlet syndrome.
Claimant saw several medical doctors including specialists
in orthopedics; neurology; neurosurgery; and psychiatry.
Page 3
The most convincing medical opinions were those of David
Roos, M.D., a board certified thoracic and vascular surgeon.
After his evaluation in 1992, Dr. Roos concluded that
claimant suffered from thoracic outlet syndrome or a chronic
inflammation of tissue in the brachial plexus or a
congenital narrowing of the thoracic outlet. Dr. Roos,
whose qualifications include a full professorship of surgery
are impressive, recommends a surgical release procedure that
he has often performed over his many years of practice. Dr.
Roos is convinced that claimant can be significantly
improved by the surgery although he admits that claimant may
never be able to return to jobs requiring moderate lifting
such as nursing.
Other physicians such as a neurologist, Erich Strieb,
M.D., disagree with this diagnosis. However, in the words
of another neurosurgeon involved in this case, Chad
Abernathy, M.D., any qualified physician who believes that
he can help should be given the opportunity. The
recommended procedure was not disputed by most other
physicians such as James LaMorgese, M.D., and Kris Thompson,
M.D., who believe that claimant is severely disabled but
offer no explanation or treatment alternative. Claimant has
been evaluated by two medical centers, the University of
Iowa and the Mayo Clinic. University physicians had no
explanation and Mayo's suspected thoracic outlet syndrome
but claimant was pulled out by defendant's physician before
tests could be made. Claimant has not had the surgery
suggested by Dr. Roos as defendant has declined to pay for
it and claimant has no money or insurance for the procedure.
Therefore, it is found that claimant has not reached
maximum healing and specifically that it is medically
indicated that significant improvement from the injury is
anticipated and claimant has not as yet returned to work.
Except for a brief time in February 1991, claimant has been
temporarily totally disabled from any form of work since a
few days after the injury on or about August 16, 1990 and
specifically since April 6, 1991, the time when claimant's
temporary benefits were ended by defendant, until August 1,
1993 at which time claimant began working for her husband
selling insurance on a part-time basis.
It is further found that all requested medical expenses
listed in the hearing report are causally connected to the
work injury found herein for the same reasons as set forth
above.
CONCLUSIONS OF LAW
I. Claimant has the burden of proving by a
preponderance of the evidence that claimant received an
injury arising out of and in the course of employment. The
words "out of" refer to the cause or source of the injury.
The words "in the course of" refer to the time and place and
circumstances of the injury. See generally, Cedar Rapids
Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe
Page 4
v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63
(1955). An employer takes an employee subject to any active
or dormant health impairments. A work connected injury
which more than slightly aggravates the condition is
considered to be a personal injury. Ziegler v. U.S. Gypsum,
252 Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited
therein.
In the case sub judice, claimant's credible testimony
backed up by defendant's own records established the alleged
work injury.
II. It was found that claimant had not achieved as yet
maximum healing. Weekly benefits for temporary total or
healing period benefits under Iowa Code section 85.33 and
85.34 begin from the date of injury until claimant returns
to work; until claimant is medically capable of returning to
substantially similar work to the work she was performing at
the time of injury; or, until it is indicated that
significant improvement from the injury is not anticipated,
whichever occurs first. Given the findings of fact,
claimant is entitled to weekly benefits from April 9, 1991
until she began working for her husband in August 1993.
After that time, she is entitled to temporary partial
disability under Iowa Code section 85.33. Upon a return to
full time work, claimant's weekly benefits will end. Should
she require further absences from work to receive additional
treatment by Dr. Roos, weekly benefits shall resume.
III. Pursuant to Iowa Code section 85.27, claimant is
entitled to payment of reasonable medical expenses incurred
for treatment of a work injury. Claimant is entitled to an
order of reimbursement if she has paid those expenses.
Otherwise, claimant is entitled only to an order directing
the responsible defendants to make such payments directly to
the provider. See Krohn v. State, 420 N.W.2d 463 (Iowa
1988).
In the case at bar, claimant established causal
connection and the requested expenses will be awarded along
with a change in authorized care to Dr. Roos for whatever
treatment he may recommend including but not limited to TOS
decompression surgery.
ORDER
1. Defendant shall pay to claimant temporary total
disability/healing period benefits from April 6, 1991 until
August 1, 1993. Beginning on August 1, 1993, defendant
shall pay temporary partial disability benefits as set forth
in Iowa Code section 85.33. Upon a return to full time
nursing work; upon a return to substantially similar work;
or, upon reaching maximum healing, claimant's weekly
benefits will end. However, any subsequent absence from
work to receive authorized treatment by Dr. Roos shall be
compensated by defendant as set forth in Iowa Code section
85.33.
Page 5
2. Defendant shall pay the medical expenses listed in
the prehearing report. Claimant shall be reimbursed for any
of these expenses paid by him. Otherwise, defendant shall
pay the provider directly along with any lawful late payment
penalties imposed upon the account by the provider.
Furthermore, defendant shall provide medical care and
treatment by David Roos, M.D., including but not limited to
TOS decompression surgery and defendant shall pay for all
reasonable expenses associated with that treatment including
travel expenses.
3. This agency will review the extent of claimant's
entitlement to permanent disability upon claimant reaching
maximum healing. The issue of the extent of claimant's
entitlement to permanent disability benefits is bifurcated
and shall be heard by this agency at such time as the
parties indicate readiness by filing a prehearing conference
report setting the permanency issues and requesting a
hearing.
4. Defendant shall pay accrued weekly benefits in a
lump sum.
5. Defendant shall pay interest on weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
6. Defendant shall pay the costs of this action
pursuant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
7. Defendant shall file activity reports on the
payment of this award as requested by this agency pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of February, 1994.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Thomas J. Currie
Attorney at Law
3401 Williams Blvd SE
P O Box 998
Cedar Rapids, Iowa 52406
Mr. Jack C. Paige
Mr. David A. Elderkin
Page 6
Attorneys at Law
700 Higley Building
P O Box 1968
Cedar Rapids, Iowa 52406
5-1803
Filed February 21, 1994
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LORRI BLAIR,
Claimant,
vs.
File No. 970512
MERCY MEDICAL CENTER,
A R B I T R A T I O N
Employer,
Self-Insured, D E C I S I O N
Defendants.
___________________________________________________________
5-1803
Non-precedential, extent of disability case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
ERNEST WEDERQUIST, :
:
Claimant, :
:
vs. :
: File No. 970592
GLENWOOD STATE HOSPITAL :
SCHOOL, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Ernest
Wederquist, claimant, against Glenwood State Hospital
School, employer, and State of Iowa, insurance carrier,
defendants, to recover benefits under the Iowa Workers'
Compensation Act as a result of an injury sustained on
December 19, 1990. This matter came on for hearing before
the undersigned deputy industrial commissioner on April 7,
1994, in Council Bluffs, Iowa. The record was considered
fully submitted at the close of the hearing. The claimant
was present and testified. Also present and testifying were
Steven Hauser, Mike Bauge, Judith Piercy, Jess Bergantzel,
and Brenda Wederquist. The documentary evidence identified
in the record consists of claimant's exhibits 1 through 14
and defendants' exhibits B, D, E, and F.
ISSUES
Pursuant to the hearing report and order approving same
dated April 7, 1994, the parties have presented the
following issues for resolution:
Whether claimant's injury is a cause of permanent
disability and if so, the extent thereof;
Whether claimant is entitled to payment of medical
benefits pursuant to Iowa Code section 85.27; and
Whether claimant is an odd-lot employee.
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 June 17, 1935 and completed the
twelfth grade of school and one year of college. His past
work activity includes packing house laborer, self-employed
dime store owner, maintenance man, and plumber. Claimant
commenced working for employer on June 22, 1978. He was
hired as a maintenance repair man. This job included, among
other functions, taking care of plumbing maintenance at the
school. Claimant testified that on December 19, 1990, while
lifting a 96 gallon water heater, he injured his low back.
The pertinent medical evidence of record reveals that
claimant was originally seen by Thomas C. Bush, M.D., on
July 12, 1990, with low back and bilateral leg pain, more on
the right than the left. An examination revealed right
sciatic pain and some in the left buttock region, but mainly
on the right side in the L5 nerve root distribution.
Routine x-rays showed a paraintra-articularis defect at L5
on S1, with slight forward displacement of the L5 vertebral
body on S1. After several repeated episodes of low back
pain and right leg pain over a period of months, claimant
underwent a lumbar spine CT scan. This revealed the
paraintra-articularis defect at the L5 level and a herniated
disc at the L4-L5 level on the right side with degenerative
discs at L4 and L5. [ex. 1(a)(1)].
On January 9, 1991, claimant underwent a microlumbar
diskectomy at L4-5 on the right with excision of a large
extruded disc and decompression of the L5 root and
posterolateral fusion from L4 to the sacrum using an
otogenous iliac bone graft. This surgery was performed by
Dr. Bush and Leslie C. Hellbusch, M.D., at Iowa Methodist
Hospital. The surgical report is not in the evidence
presented by the parties, however, information regarding the
procedure is contained in a letter from Dr. Bush dated
August 6, 1993 and office notes found in exhibit 1.
According to Dr. Bush, claimant's post-operative period
was basically within normal limits for a period of several
weeks but then his low back and buttock pain reoccurred. He
had intermittent episodes of back spasms and leg pain worse
with activity and somewhat resolved with rest and
anti-inflammatory medications. A CT scan of the lumbar
spine and an MRI of the lumbar spine taken in February and
March 1992, respectively, showed no surgical pathology.
[ex. 1(a)(1) and ex. 3(a)(1)].
Claimant was sent by defendants to Peter D. Wirtz,
M.D., for evaluation on May 13, 1993. Dr. Wirtz stated that
claimant's post-operative condition includes:
Congenital L5 S1 spondylolysis and with
spondylolisthesis;
Page 3
Degenerative disc disease with extrusion, right
side, L4-5; and
Status post-op partial discectomy L4-5 and
spinal fusion L4 to S1. [ex. 4(c)(2)].
Dr. Bush referred claimant to the Spine Center at the
Mayo Clinic for evaluation on July 27-28, 1993. After
reviewing the claimant's medical history and noting his
complaints (burning in the arch of his right foot and right
low back pain radiating into the right buttock and
posterolateral thigh), Gregory S. Peterson, M.D., conducted
a physical examination. Based on clinical and laboratory
findings, Dr. Peterson concluded that claimant has chronic
radiculopathy although his March 1992 MRI is negative and
his EMG from July 27, 1993 shows no evidence of active
radiculopathy. He stated that his symptoms relate to an old
peroneal neuropathy or an old inactive right L5
radiculopathy. (ex. 3). On June 2, 1993, Dr. Wirtz gave
claimant a 15 percent body as a whole impairment rating. He
stated that claimant's right leg complaints are consistent
with the neurologic involvement. He indicated that the
symptoms are best managed with activities that restrict
aggravation such as lifting, walking and carrying
limitations. He noted that a back brace was beneficial to
avoid excessive bending and to allow support for the back
area. Also, a TENS unit was recommended to transfer
discomfort in the muscular areas and anti-inflammatory
agents and analgesic medications are also aides for these
symptoms. [ex. 4(b)].
CONCLUSIONS OF LAW
The first issue to be determined is whether claimant is
permanently and totally disabled as a result of his back
injury either as an odd-lot employee or otherwise.
Under the odd-lot doctrine, which was formally adopted
by the Iowa Supreme Court in Guyton v. Irving Jensen Co.,
373 N.W.2d 101 (Iowa 1985), a worker becomes an odd-lot
employee when an injury makes the worker incapable of
obtaining employment in any well-known branch of the labor
market. An odd-lot worker is thus totally disabled if the
only services the worker can perform are so limited in
quality, dependability, or quantity that a reasonably stable
market for them does not exist. Id., citing Lee v.
Minneapolis Street Railway Company, 230 Minn. 315, 320, 41
N.W.2d 433, 436 (1950). The rule of odd-lot allocates the
burden of production of evidence. If the evidence of degree
of obvious physical impairment, coupled with other facts
such as claimant's mental capacity, education, training or
age, places claimant prima facie in the odd-lot category,
the burden should be on the employer to show that some kind
of suitable work is regularly and continuously available to
the claimant. Certainly in such cases it should not be
enough to show that claimant is physically capable of
performing light work and then round out the case for non
compensable by adding a presumption that light work is
available. Guyton, 373 N.W.2d at 105.
Page 4
When a worker makes a prima facie case of total
disability by producing substantial evidence that the worker
is not employable in the competitive labor market, the
burden to produce evidence of suitable employment shifts to
the employer. If the employer fails to produce such
evidence and the trier of fact finds the worker falls in the
odd-lot category, the worker is entitled to a finding of
total disability. Even under the odd-lot doctrine, the
trier of fact is free to determine the weight and
credibility of the evidence in determining whether the
worker's burden of persuasion has been carried. Only in an
exceptional case would evidence be sufficiently strong to
compel a finding of total disability as a matter of law.
Guyton, 373 N.W.2d at 106. The court went on to state:
The commissioner did not in his analysis
address any of the other factors to be considered
in determining industrial disability. Industrial
disability means reduced earning capacity. Bodily
impairment is merely one factor in a gauging
industrial disability. Other factors include the
worker's age, intelligence, education,
qualifications, experience, and the effect of the
injury on the worker's ability to obtain suitable
work. See Doerfer Division of CCA v. Nicol, 359
N.W.2d 428, 438 (Iowa 1984). When the combination
of factors precludes the worker from obtaining
regular employment to earn a living, the worker
with only a partial functional disability has a
total disability. See McSpadden v. Big Ben Coal
Co, 288 N.W.2d 181, 192 (Iowa 1980).
Claimant testified that he returned to light work duty
with employer on September 9, 1991, and worked until August
28, 1992, when he voluntarily retired. Claimant then
applied for and received social security disability benefits
and state disability benefits. He testified that he
receives $453 per month in IPERS benefits, $857 in social
security disability and $925 per month from Hartford
Disability Plan. In addition, he co-owns a farm with his
sister and receives 1/4 of the cash crop and money generated
from selling stock cows. From this enterprise, he earned
$22,000 in 1991; $18,000 in 1992 and $22,000 in 1993. In
addition, he breeds quarter horses. He has 10-15 brood
mares and raises colts. He and his wife testified that this
is a losing business and he does it purely for enjoyment and
not income.
In determining whether claimant is an odd-lot employee,
it must first be determined whether claimant has made a
prima facie case of total disability by producing
substantial evidence that he is not employable in the
competitive labor market. Although the undersigned cannot
dispute that claimant has obstacles to employment, it
clearly has not been shown that he is unemployable. Merely
because claimant cannot return to work as a maintenance
repair man with employer, does not mean that he is not
employable. Claimant worked one full year at light duty
with employer and voluntarily quit. There is no indication
Page 5
from any medical practitioner that claimant's light work
activity with employer was more than his restrictions would
allow. In fact, Dr. Bush gave him a 50-pound maximum weight
lifting limit and a 25-pound maximum repetitive lifting
limit. [ex. 1(f)]. The evidence presented by claimant on
this issue falls far short of that needed to establish a
prima facie showing that he is unemployable in the same
sense contemplated in Guyton, 373 N.W.2d 101. Although
claimant made some attempts to find work in October 1992 (3
attempts) and March 1994 (2 inquiries), his efforts in this
regard are less than satisfactory or aggressive and probably
by design after he was notified of his eligibility to
receive social security benefits. (ex. 10). The evidence
does not establish that the only services claimant can
perform are so limited in quality, dependability or quantity
that a reasonable stable market for them does not exist.
Claimant stated that he consulted with a vocational
rehabilitation counselor but produced no records from that
consultation and no vocational assessment indicating that he
is unemployable. A determination made by the social
security administration as to claimant's disability is not
binding on this agency.
Although the evidence does not support a finding that
claimant is an odd-lot employee, it does support a finding
that claimant has a permanent disability which is causally
related to his injury. Claimant has clearly demonstrated
that he sustained industrial disability as a result of his
work-related injury.
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
Page 6
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
Claimant is currently 58 years old. Even though he was
not planning to retire, he testified that his back
impairment forced him to retire. Claimant indicated that he
was unable to perform even light duty work with employer.
However, no physician who has treated and/or examined
claimant has indicated that he is unable to perform any work
activity. In fact, Dr. Bush, his treating surgeon,
indicated that he is capable of performing light work
activity.
Employers are responsible for the reduction in earnings
capacity caused by the injury. They are not responsible for
a loss of actual earnings because the employee resists or
refuses to return to work. Williams v. Firestone Tire and
Rubber Co., III Iowa Industrial Commissioner Report 279
(1982).
Claimant is a high school graduate and has one year of
college. However, his employment background is primarily
manual labor and production work. He is now limited from
performing heavy work activity. Nevertheless, employer was
willing and did in fact accommodate claimant's restrictions
and should not be penalized for claimant's decision to
retire. Claimant alleges that he is inactive due to his
back injury. However, surveillance tapes indicate that
Page 7
claimant is more active then he testified. Since claimant
became eligible for social security benefits, he appears
unmotivated to become gainfully employed. In any event,
claimant is near the end of normal work life. Compared to a
younger worker with the same injury, claimant has lost less
future earning capacity as a result of his injury.
McClellan v. Midwest Biscuit Co., file number 802020,
(App. September 20, 1989); Becke v. Turner-Busch, Inc.,
Thirty-fourth Biennial Report of the Industrial Commissioner
34 (Appeal Decision 1979); Merrill v. Eaton Corp., file
number 707565 (App. May 9, 1990).
After carefully considering all the factors of
industrial disability, and employing agency expertise, it is
determined that claimant is 50 percent industrially disabled
and is entitled to 250 weeks of permanent partial disability
benefits at the rate of $267.34 per week commencing
September 9, 1991.
The next issued to be determined is whether claimant is
entitled to medical benefits pursuant to Iowa Code section
85.27.
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Section 85.27.; Holbert v.
Townsend Engineering Co., Thirty-second Biennial Report of
the Industrial Commissioner 78 (Review-reopen 1975).
Claimant has the burden of proving that the fees charged for
such services are reasonable. Anderson v. High Rise Constr.
Specialists, Inc., File No. 850096 (App. 1990).
Claimant is not entitled to reimbursement for medical
bills unless claimant shows they were paid from claimant's
funds. See Caylor v. Employers Mut. Casualty Co., 337
N.W.2d 890 (Iowa Ct. App. 1983).
When a designated physician refers a patient to another
physician, that physician acts as the defendant employer's
agent. Permission for the referral from defendants is not
necessary. Kittrell v. Allen Memorial Hospital,
Thirty-fourth Biennial Report of the Industrial Commissioner
164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
An employer's right to select the provider of medical
treatment to an injured worker does not include the right to
determine how an injured worker should be diagnosed,
evaluated, treated or other matters of professional medical
judgment. Assmann v. Blue Star Foods, Inc., File No. 866389
(Declaratory Ruling, May 18, 1988).
Since claimant has proven a compensable injury, he is
entitled to all reasonable and necessary medical expenses,
hospital services and supplies and reasonable and necessary
Page 8
transportation expenses incurred for such services.
Employer will pay all medical bills designated by claimant
as medical expenses for treatment of his back impairment.
ORDER
THEREFORE IT IS ORDERED:
That defendants pay to claimant two hundred fifty (250)
weeks of permanent partial disability benefits at the rate
of two hundred sixty-seven and 34/100 dollars ($267.34)
commencing September 9, 1991.
That defendants pay for all medical and mileage
expenses incurred for treatment of his work-related injury.
That defendants receive credit for any benefits
previously paid.
That defendants pay accrued amounts in a lump sum.
That defendants pay interest pursuant to Iowa Code
section 85.30.
That defendants pay costs pursuant to rule 343 IAC
4.33.
That defendants file claim activity reports as required
by the agency pursuant to rule 343 IAC 3.1(2).
Signed and filed this ________ day of May, 1994.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Sheldon Gallner
Attorney at Law
803 3rd Ave
PO Box 1588
Council Bluffs, Iowa 51502
Mr. James Christenson
Assistant Attorney General
Hoover State Office Bldg
Des Moines, Iowa 50319
51803 52500
Filed May 5, 1994
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
ERNEST WEDERQUIST,
Claimant,
vs.
File No. 970592
GLENWOOD STATE HOSPITAL
SCHOOL,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
STATE OF IOWA,
Insurance Carrier,
Defendants.
------------------------------------------------------------
51803
Claimant found to be 50 percent industrially disabled as a
result of a back injury which precludes him from performing
his usual heavy work activity as a maintenance repair man.
52500
Claimant found entitled to payment of medical and mileage
expenses incurred for treatment of his work-related injury.