BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
MARILYN GILES, :
:
Claimant, :
:
vs. :
: File No. 979227
DES MOINES GOLF & COUNTRY :
CLUB, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
U S F & G, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Marilyn
Giles, claimant, against Des Moines Golf and Country Club,
employer, and U S F & G, insurance carrier, defendants, to
recover benefits under the Iowa Workers' Compensation Act as
a result of an injury sustained on September 16, 1990. This
matter came on for hearing before the undersigned deputy
industrial commissioner on June 18, 1992, in Des Moines,
Iowa. The record was considered fully submitted at the
close of the hearing. The claimant was present and
testified. Also present and testifying was Donald Giles,
claimant's husband. The documentary evidence identified in
the record consists of joint exhibits 1 through 7 and 9
through 13 and claimant's exhibit 8.
ISSUES
Pursuant to the prehearing report and order dated June
18, 1992, the parties have presented the following issues
for resolution:
1. Whether claimant sustained an injury on September
16, 1990, which arose out of and in the course of employment
with employer;
2. Whether the alleged injury was the cause of
temporary and permanent disability;
3. The extent of entitlement to weekly compensation
for temporary total disability or healing period benefits,
if defendants are liable for the injury;
4. The extent of entitlement to weekly compensation
for permanent disability, if defendants are liable for the
injury; and
Page 2
5. Whether claimant is entitled to medical expenses
under Iowa Code section 85.27.
FINDINGS OF FACT
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Claimant was born on January 9, 1943, and graduated
from high school in 1961. Claimant's work history is
primarily in the food service industry as a bakery/deli
manager, waitress, salad maker, and cook. Her highest rate
of pay was $8 an hour when she worked for employer from
December 1989 to September 1990. Claimant testified that on
Sunday, September 16, 1990, while working in employer's
kitchen and preparing the evening salad bar, she slipped and
fell on salad oil and strained her low back. That evening
she went to Iowa Methodist Hospital's emergency room and was
given some muscle relaxants. She saw S. Bunge, M.D., her
treating physician, on September 19, 1990. He provided no
treatment and returned her to work with a 10-pound lifting
restriction. Claimant testified that she reported to work
at 6 a.m. on September 20, 1990, and was expected to perform
duties contrary to her medical restrictions. During the
course of the day, her low back pain became so severe that
she quit her job. Claimant was off work until May 1991 when
she was hired by The Women's Club at Hoyt Sherman as a
banquet server. She worked between 20-25 hours per week and
earned $5 an hour. She worked there until October 1991 when
she and her husband moved to the state of Minnesota.
Claimant has not worked since October 1991. She has filed
an application for social security disability benefits.
The medical evidence of record reveals that claimant's
medical history is significant for back problems. On April
28, 1973, she was diagnosed with a herniated disc at L4-5
and underwent lumbar laminectomy at Fairview-Southdale
Hospital in Edina, Minnesota (exhibit 13, page 184). On
December 18, 1974, claimant was diagnosed with a herniated
nucleus pulposus at L4-5, on the right. Surgery was
performed by Dr. Chiu at Mount Carmel East Hospital in
Columbus, Ohio (ex. 13, p. 162). Claimant was treated for
recurrent low back symptoms with epideral injections and
manipulations in 1977 and 1978 (ex. 13, pp. 163 & 165).
Claimant came under the care of Steven G. Bunge, M.D.,
on September 19, 1983. She initially presented with
complaints of headaches. Other office visits were for
various aches and pains. In June 1985 she underwent a CAT
scan and chemistry profile which was normal. A referral was
made by Dr. Bunge to Thomas A. Carlstrom, M.D., neurologist,
for evaluation on July 16, 1985. He found no neurologic
abnormalities and diagnosed myofascial neck symptoms.
During a July 2, 1990, visit, claimant was still complaining
of severe headaches in the cervical neck region (ex. 13, pp.
1-89 & 107-160).
Claimant presented to Dr. Bunge on August 24, 1990,
Page 3
with complaints of mid-thoracic back pain, discomfort in the
right hip, right knee, and right leg area. She related
these symptoms to frequent lifting of 50 pounds at work.
Dr. Bunge diagnosed myofascial strain and restricted
claimant to lifting no more than 10 pounds (ex. 2, p. 8).
On September 5, 1990, she presented with complaints of
continuing lower back pain without radiation into her right
lower leg and right lower thoracic pain. A return visit on
September 19, 1990, brought complaints of increased
tenderness in the low back region. Dr. Bunge indicated that
she may return to work but should avoid lifting more than 10
pounds. On September 21, 1990, claimant reported to Dr.
Bunge that her back hurt so much that she had to quit her
job. Because of continuing complaints, Dr. Bunge referred
her to the low back institute for evaluation (ex. 2, pp. 1 &
6-9).
Claimant was seen by Dr. Carlstrom at Iowa Methodist
Low Back Institute on October 4, 1990. He reported that his
examination was consistent with myofascial pain disorder
with diffuse paravertebral tenderness and slightly
diminished range of motion of her back. Surgical
intervention was deemed unnecessary (ex. 4, p. 2).
It appears from the record that claimant received no
medical treatment until January 19, 1991. At this time, she
presented to Dr. Bunge with complaints of pain in the low
thoracic region and intermittent headaches. She also
complained of some tenderness in her right breast. On March
6, 1991, she presented for a follow-up examination. At this
time, she was having less neck and low back discomfort and
her condition appeared significantly improved. On May 2,
1991, she reported a decrease in headaches and a much
improved back condition (ex. 2, pp. 3-4).
Dr. Bunge last saw claimant on September 9, 1991. At
that time, she reported that she was working 40 hours per
week in two part-time jobs. She was decorating cakes in one
job and doing some cooking preparation work in the other.
Neither job required a significant amount of lifting (ex. 2,
p. 5).
On August 20, 1991, claimant was referred by her
attorney to Ronald C. Evans, D.C., chiropractic orthopedist,
for evaluation. A radiographic examination was performed
and revealed Grade I and II spondylosis at L4-L5, L5-S1
(post-surgical). It was his opinion that claimant, as a
result of a work-related trauma on September 16, 1990,
sustained moderate to severe lumbosacral sprain complicated
by prior discectomies at L4-L5 and L5-S1 (ex. 5).
Dr. Bunge testified in a deposition on February 18,
1992. He opined that claimant's fall in September 1990
probably aggravated her preexisting back condition. He
stated that claimant reached maximum medical improvement
between three and six months after her initial injury. Dr.
Bunge also stated that claimant's 10-pound lifting
restriction has not changed from 1984 to the present. He
indicated that the fall in 1991 constituted a temporary
aggravation of her low back condition. When he last saw
Page 4
her in September 1991, she had no complaints about her low
back (ex. 3).
CONCLUSIONS OF LAW
Claimant has the burden of proving by a preponderance
of the evidence that she received an injury on September 16,
1990, which arose out of and in the course of her
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,
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.
While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, its mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76
N.W.2d 756 (1956). If the claimant had a preexisting
condition or disability that is materially aggravated,
accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962);
Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112
N.W.2d 299 (1961).
The greater weight of the evidence supports the finding
that on September 16, 1990, claimant slipped and fell while
performing work-related duties with employer. She was
treated at Iowa Methodist Medical Center emergency room that
same day. Her complaints were referable to left knee and
hip pain as well as lower back pain radiating into the left
buttock (ex. 1). Although the incident was not witnessed,
James Murray, claimant's supervisor at the time, testified
Page 5
in a deposition on May 7, 1992, that he learned of the
incident the day it happened and he wrote up an accident
report. He testified that he had no reason to disbelieve
claimant that she slipped and fell while at work (ex. 7).
Accordingly, claimant has met her burden of proof that she
sustained an injury on September 16, 1990, which arose out
of and in the course of employment with employer.
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 September 16, 1990, is causally related to the disability
on which she now bases her 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
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.
The greater weight of the evidence in this case
supports the finding that claimant suffered a temporary
aggravation of a preexisting back condition. Emergency care
at Iowa Methodist was provided by Dr. Peterson. He
prescribed medication and discharged her home ambulatory
(ex. 1, p. 3). On September 19, 1990, claimant was released
to return to work by Dr. Bunge with the admonition not to
lift more than 10 pounds. This restriction had been
previously imposed by Dr. Bunge prior to the September 16,
1990, incident because of her chronic neck problems and
previous low back problems (ex. 3, p. 19). Claimant
returned to work on September 19, 1990, and submitted a
notice of resignation effective September 20, 1990 (ex. 12,
p. 29). Claimant testified that she was advised by Dr.
Bunge to quit work, however, a clinical note dated September
21, 1990, states that "Marilyn reports that her back hurt
too much at work and she had to quit her job yesterday."
(ex. 2, p. 6).
Dr. Bunge testified that claimant incurred a temporary
Page 6
aggravation of her preexisting back condition when she fell
on September 16, 1990 (ex. 3, pp. 20-21). He also stated
that "I believe she probably had worsening lower back
symptoms for probably six months after the fall,..." (ex. 3,
p. 21). He reiterated that claimant had a "temporary
aggravation" despite the fact that the AMA Guides at Roman
II(B) assigned a 5 percent impairment rating. He further
stated "I don't understand how they can say it's a permanent
injury if it goes away in six months." (ex. 3, p. 23). Dr.
Carlstrom concurred with Dr. Bunge's opinion and reported on
October 17, 1990, that he saw claimant earlier in the month
for complaints of myofascial headaches, back and neck pain.
"She complained of this discomfort since a fall about one
month ago, and, at this point, I don't think she will be
considered to have a permanent impairment." (ex. 4, p. 3).
Accordingly, claimant has not met her burden of proof
as to entitlement to permanent partial disability benefits.
Claimant bears the burden of proof as to entitlement to
temporary total disability benefits. "Temporary total
disability does not necessarily contemplate that all
residuals from an injury must be completely healed and
returned to normal. It is only when the evidence shows that
because of the effects of the injury gainful employment
cannot be pursued." McDonald v. Wilson Foods Corp.,
Thirty-fourth Biennial Report of the Industrial Commissioner
199 (App. Dec. 1979).
The most appropriate end to the temporary total
disability period should coincide with the termination of
active treatment of the work injury. Montez v. Heinz USA,
II-2 State of Iowa Industrial Commissioner Decisions 661,
664 (1985).
"`Active treatment' is a vigorous form of medical or
surgical treatment aiming at an immediate cure." Schmidt's
Attorney Dictionary of Medicine.
It is determined that claimant proved entitlement to
temporary total disability benefits from September 16, 1990
through September 19, 1990, when she was released to return
to work by her treating physician. There is no evidence in
the record that claimant underwent a vigorous form of
medical or surgical treatment after this date. Continued
visits to physicians without recommendations for active
medical treatment will not extend temporary total disability
benefits. Howard v. Whitehall Transportation, file number
779866 (App. Dec. May 14, 1991). Although Dr. Bunge felt,
based on claimant's subjective symptoms, that she should be
evaluated at the Low Back Institute, Dr. Carlstrom did not
recommend surgery or any other form of medical treatment on
October 4, 1990 (ex. 4, p. 2).
Compensation for temporary total disability benefits
begins on the fourth day of disability with respect to
injuries that do not result in permanent partial disability.
Iowa Code section 85.32. Claimant is not entitled to
benefits for the first three days of lost time. Claimant
testified that she was off work on September 17, 18 and 19.
Page 7
On September 19, Dr. Bunge released her to return to work
with the same restrictions she had prior to the injury.
Claimant testified that she reported for work on September
20, 1990, but felt that her severe pain interfered with her
ability to perform her work duties and she was forced to
quit. The record contains a handwritten note from claimant,
dated September 19, 1990, resigning effective September 20,
1990. A postscript states, "I'm sorry but I came in my low
back hurt so I'm going to go back home." (ex. 12, p. 29).
Claimant alleges that she was taken off work by Dr. Bunge.
However, the record does not support claimant's allegations
in this regard. Dr. Bunge's office notes indicate he was
informed by claimant that she had decided to take herself
off work due to low back pain. Claimant has not sustained
her burden of proving that she was authorized to be off work
by any physician. Therefore, claimant is not eligible to
receive temporary total disability benefits.
The next issue to be determined is whether claimant is
entitled to medical 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).
Employer has denied liability for claimant's injury
throughout the processing of this claim. Claimant's claim
has been determined to be compensable under chapter 85.
Therefore, defendants shall pay to claimant all reasonable
and necessary medical and transportation expenses incurred
during the course of treatment for her work-related injury.
ORDER
THEREFORE, IT IS ORDERED:
That defendants pay all medical and mileage expenses
incurred by claimant for treatment of her work-related
injury on September 16, 1990.
That defendants pay all costs pursuant to rule 343 IAC
4.33.
That defendants file claim activity reports as required
by the agency.
Signed and filed this ____ day of July, 1992.
______________________________
Page 8
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Barry Moranville
Attorney at Law
1601 22nd St, STE 212
West Des Moines, Iowa 50265
Ms. Iris Post
Attorney at Law
2222 Grand Ave
Des Moines, Iowa 50306
51100 1803 52500
Filed July 10, 1992
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MARILYN GILES,
Claimant,
vs.
File No. 979227
DES MOINES GOLF & COUNTRY
CLUB,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
U S F & G,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1100
Claimant proved by a preponderance of the evidence that she
sustained a work-related injury on September 16, 1990.
1801
Claimant was off three days due to her work-related injury. She
was released by her treating physician to return to work on the
third day. She returned to work on September 20, 1990, and
voluntarily submitted a notice of resignation. Claimant contends
that she was taken off work by her physician. The record does
not support this contention. Continued visits to physicians
without recommendations for active medical treatment will not
extend temporary total disability benefits. Howard v. Whitehall
Transportation, file number 779866 (App. Dec. May 14, 1991).
Claimant not eligible for temporary total disability benefits.
Iowa Code section 85.32.
5-2500
The employer has to the right to choose the provider of care,
except where employer has denied liability for the injury. Iowa
Code section 85.27; Holbert v. Townsend Engineering Co.,
Thirty-second Biennial Report of the Industrial Commissioner 78
(Review-reopen 1975).
Claimant entitled to reasonable and necessary medical and
transportation medical expenses incurred during the course of
treatment for her work-related injury.
Page 1
51802 51401 51402.40 51803
4001 4000.1 4001.2 2906
Filed April 23, 1991
Walter R. McManus, Jr.
before the iowa industrial
commissioner
____________________________________________________________
:
CLINT MORRISON, :
:
Claimant, : File Nos. 843176
: 979253
: 979254
vs. :
: A R B I T R A T I O N
:
CITY OF AMES, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
51802
Claimant awarded healing period benefits for two periods of
temporary disability based on the evidence from (1)
claimant's testimony; (2) company records; and (3) the sole
treating physician.
51401 51402.40
Claimant had three different injuries on three different
injury dates from lifting three different patients. The
sole treating physician said all three incidents contributed
to his surgery and resulting disability. The permanent
partial disability and credit against it were allocated
one-third to each injury since no specific allocation
percentage was given by the physician, even though the
physician said the last injury caused the surgery.
51803
Claimant, age 34 when injured, was foreclosed from his
highly skilled and highly paid job as a paramedic. He had
two lumbar laminectomies. Doctor first awarded 12 percent
permanent impairment and later raised it to 19 percent.
Defendant's doctor awarded 10 percent permanent functional
impairment. Both doctors limited lifting to no more than 50
pounds at most. Claimant's doctor required a change of
positions while working. Claimant still had an unstable
back which required a body cast and later a full-time form
fitting body brace. Iowa State Vocational rehabilitation
counsellor recommended college and claimant attended one
year, getting very high grades in school, until he ran out
Page 2
of money. Claimant awarded 55 percent industrial
disability.
4001 4000.1 4001.2
Claimant was awarded 50 percent penalty benefits for
four-month period after defendant terminated healing period
benefits and did not begin permanent partial disability
benefits after an impairment rating was given. There was
some evidence defendant was trying to force a settlement on
claimant.
Claimant was awarded a second period of 50 percent penalty
benefits for 40 weeks for only paying claimant the
impairment rating when claimant was obviously entitled to
far more for industrial disability after two lumbar
laminectomies, resulting unstable back, foreclosed from
performing as a paramedic and projections of up to 50
percent of actual wage loss. Also, claimant chose to attend
college based on recommendation of the Iowa State
Rehabilitation counsellor that the treating physician
recommended to claimant and college is costly.
2906
Defendant ordered to file two additional first reports of
injury (Iowa Code section 86.11) and also submit form 2a's
showing benefits paid prior to hearing which they had failed
to do as of time of hearing. Rule 343 IAC 3.1.
Claimant's motion to amend the petition to conform to the
proof neither granted or denied because deputies determine
all issues raised by the evidence within the issues
designated on the hearing assignment order. Defendant's
contention that the statute of limitations had run on the
latter two injuries was groundless because defendant had
treated all three injuries as one and were fully prepared to
defend the action based on the evidence presented.
Defendant employer made an ex parte communication, but the
deputy declined to impose any sanction on account of it.
Likewise, deputy declined to recuse himself from writing the
decision because defendant should not be allowed to use its
own misconduct to obtain a change of deputy.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
KATHY L. LONG, :
:
Claimant, :
: File No. 979258
vs. :
:
K-MART CORPORATION, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant. :
:
___________________________________________________________
STATEMENT OF THE CASE
This matter came on for hearing on July 20, 1992, in
Storm Lake, Iowa. The claimant seeks permanent partial
disability benefits as a result of an alleged injury
occurring on August 10, 1989. The evidence consists of the
testimony of the claimant; claimant's exhibits 1 through 21
(exhibit 22 was marked but not offered); and, defendants'
exhibit 1, pages 1 through 181.
ISSUES
The issues for resolution are;
1. Whether claimant's temporary or permanent
disability is causally related to her August 10, 1989
injury;
2. The extent of claimant's permanent disability and
entitlement to disability benefits;
3. Whether claimant is entitled to medical benefits
under Iowa Code section 85.27. The issue is causal
connection and authorization and involves a $1,640.88
chiropractic bill, a $88.31 hospital bill and a $291.71 drug
bill.
FINDINGS OF FACT
The undersigned having read all the evidence and heard
the testimony, find that:
Claimant is 31 years old. She did not graduate from
high school or obtain a GED. She has had one plus year at
the Iowa Lakes Community College in a criminal justice
program learning to be a police officer. She also received
a cosmetologist degree and license to be a cosmetologist in
California. Claimant testified she does not practice
cosmetology and did not work for anyone but did do something
at home for awhile.
Claimant related her other work history which involved
Page 2
working in a restaurant, Hardee's, Super Valu, and worked
herself up to manager of Happy Dog fast food restaurant in
California at $6.00 plus per hour.
Claimant moved to Iowa approximately three years ago
and began working at K-Mart in July 1989, beginning at $3.75
per hour as a part-time worker working approximately 35
hours or less per week. Claimant related that she actually
worked sometimes more than 35 hours but was still not
considered full time. Claimant testified she had no health
problems prior to beginning work in 1989 for defendant.
Claimant related her work duties and how she was
injured on August 10, 1989. Basically, claimant's injury
occurred when an oversized truck bed tool box storage chest,
estimated to weigh 80 pounds, was tossed from an upper
storage area in the store down to another person who was
standing ready to catch the chest. Claimant was standing
nearby and the throw was off course and hit claimant on the
head. Claimant said that no one broke the fall of the chest
and it knocked her forward causing her to become dizzy. She
indicated she saw little stars, her vision was blurred and
she felt funny.
Claimant was near the end of her shift that day.
Claimant indicated she did not report this incident at first
as plenty of people saw it. Claimant later went to Rex J.
Jones, D.C. to get checked out as her neck was stiff.
Claimant indicated that when she went to Dr. Jones she was
asked as to whether defendant knew she was coming. Claimant
related "no" and so subsequently the claimant told Laurie at
K-Mart. Claimant said that at first K-Mart said nothing as
to any particular doctor she should go to so she continued
to go to Dr. Jones. Claimant eventually went to David
Robison, D.O., in family practice, around August 21, 1989.
Defendant apparently had arranged for this doctor to see
claimant earlier and she missed her first appointment as she
did not know the appointment had been made and the doctor
called her. Claimant stated that Dr. Robison told her he
saw no reason why she couldn't continue to see Dr. Jones as
the services he was performing would be similar to the
physical therapy that he would recommend. Eventually, the
defendant wrote a letter to claimant on October 16, 1989,
indicating she should no longer go to Dr. Jones as he was
not authorized and that she should only go to Dr. Robison.
Claimant indicated she continued to see Dr. Jones as he was
helping her and she had the impression that Dr. Robison
okayed this.
Claimant testified that she gave notice to defendant
approximately two weeks before her injury that she was going
to leave for another job.
Claimant never missed any work with defendant and upon
leaving approximately two days or so after August 10, 1989,
she began work on the night shift at Super Valu. Claimant
described her job at Super Valu as a light duty job.
Claimant testified she quit her job in the spring of
1991 at Super Valu after a dispute with her boss. At the
Page 3
time, she was making $5.30 per hour. Claimant next worked
for approximately a month at the Taco House and then began
working on March 3, 1991 at Casey's. Claimant said she did
not tell Casey management of her physical problems as she
didn't think they would hire her. She described her duties
at Casey's as physical labor, cleaning, unloading trucks,
and stocking shelves. She began at approximately $4.50 per
hour and at the time of her deposition in August 1991, she
was making $4.75 (Def. Ex. 1, p. 43). She is still working
at Casey's.
Claimant related the medical problems she was having
pursuant to her August 10, 1989 injury. These involved
pain, neck spasms, particularly when she would be doing
certain activities or working at certain types of jobs.
Claimant related an incident on July 13, 1991, when she
went to the hospital after she had been unloading a large
truck of products at Casey's. She indicated that night she
had spasms in her neck and back and that she hurt very much.
She indicated she got out of bed the next day and her neck
popped. She couldn't move her neck and went to the hospital
emergency room. She indicated she returned to Dr. Jones for
continued treatments.
Claimant related her headaches started after unloading
the truck. They also would start when she would do
housework such as waxing floors. Claimant testified that
the spasms oftentimes lasted two days and sometimes would
last as long as four days. Claimant contends she is limited
in her ability to turn her head left and right or up and
down without discomfort. She indicated the pain is at the
base of the skull of her neck.
Claimant related that the spasms occurred even when she
was doing nothing that would otherwise cause spasms.
Claimant related she had no other injuries since August
10, 1989 other than an auto accident. It is obvious to the
undersigned that this was insignificant and has no bearing
on this case and therefore will not be set out in any more
detail.
Claimant related the fact that a company, Stylecraft,
which makes furniture, was hiring 400 people locally in the
area beginning at $6.00 per hour. Claimant said she applied
for this job and was hired but did not accept the job as she
believes she could not handle it because of the various
things involved such as pushing and pulling, etc.
Rex J. Jones, D.C., testified through his deposition on
May 7, 1992 (Claimant's Exhibit 18). The doctor related
claimant's history and diagnosis. He diagnosed claimant
when he saw her first on August 10, 1992, that she had a
post-traumatic cervicalgia, basically severe headache,
cervical muscle spasm, occipital neuralgia, mild fasciitis
and subscapular neuralgia. The doctor causally connected
claimant's condition to her August 10, 1989 injury and also
opined that claimant's injuries were permanent in nature
(Cl. Ex. 18, pp. 7-9). The doctor said he is also familiar
Page 4
with Dr. Robison's records and diagnoses when he saw
claimant first on August 21, 1989. He indicated he thought
Dr. Robison's findings were consistent with the findings
that he made. At the time of his deposition testimony, the
doctor believed that claimant would have some ongoing
problems such as recurring headache problems and aggravation
of her condition of her mid and upper back and the muscles
in her neck when she lifts or aggravates it. The doctor
testified that he rated claimant as 10 percent permanent
partial impairment in February 1990, and on the newer Guides
that took in the soft tissue injury ratings, he then opined
claimant had a 20 percent whole person impairment on August
2, 1990. He causally connected this impairment to claimant
August 10, 1989 injury (Cl. Ex 18, pp. 14-17).
The doctor indicated that with his experience with the
type of injury claimant has that she will continue to
develop trigger points in the muscle that are usually
permanent. He described trigger points as those areas in
the muscle that were damaged and the muscle heals with scar
tissue and the muscle is not as elastic and doesn't have the
stretch and flexibility that it once had (Cl. Ex. 18, pp.
20, 21). The doctor indicated that if claimant has periodic
exacerbations, they could be the result of residuals from
claimant's injury.
The doctor agreed that there was no significant change
in terms of claimant's symptoms, range of motion and
complaints between the first impairment rating in February
of 1990 and the second impairment rating in April of 1992.
He indicated the real change came in the revision of the AMA
Guides, third edition, where they became more specific with
a particular type of injury that claimant incurred and the
doctor indicated he could more clearly rate what was
actually happening with a patient under these revisions (Cl.
Ex. 18, pp. 25, 26).
Dr. Jones did not impose any limitations on claimant
nor does he know of any other medical writer writing any
weight or lifting limitations. Dr. Jones indicated that he
is reluctant to impose limitations as he wants an individual
to put out as much as they can and get by with it. He
thinks this is the only way he can get them back to full
function (Cl. Ex. 18, p. 28).
The doctor acknowledged that he received a copy of the
letter dated October 16, 1989, indicating that he was no
longer the company authorized medical care provider. Dr.
Jones also acknowledged that he did not have anything in his
record indicating that the claimant was further referred to
him for treatment after that date by any other company
doctor or defendant.
The doctor indicated that he last saw claimant on April
2, 1992, for evaluation and prior to that he had not seen
claimant since July 1991 until December 1991, as far as
treatment relating to workers' compensation. He indicated
he did see claimant for three visits in August when she had
an automobile accident. He indicated that accident wasn't
much and the claimant wasn't really hurt (Cl. Ex. 18, pp.
Page 5
35, 36). The doctor indicated that the July 13, 1991
incident resulted from claimant having a severe episode and
ended up in the emergency room of the hospital. He
indicated she was having muscle spasms and headaches.
David Robison, D.O., is certified in family practice.
He testified through his deposition on May 7, 1992. He
first saw claimant on August 21, 1989, for what he
understood to be a work-related injury at K-Mart. The
doctor acknowledged that when the claimant first came in to
see him on August 21, 1989, she told him that she had
already seen a chiropractor approximately four days before.
Dr. Robison thought the clinic he was with was the company
authorized doctor for K-Mart but he wasn't absolutely sure.
He indicated it was not unusual for corporations to refer
people to chiropractors prior to seeking a medical doctor's
opinion.
Dr. Robison indicated that since claimant had already
seen Dr. Jones, the chiropractor, and according to his
notes, she was getting some relief from Dr. Jones'
treatment, and since on his examination he found that
claimant had some evidence of a cervical strain with muscle
spasms secondary to her injury, he felt that claimant could
continue as far as he was concerned with the chiropractor
since it was benefiting her. He indicated that he then
expected her to go back to Dr. Jones as long as she
continued to progress and if she didn't get better, she
should return to him for further treatment (Cl. Ex. 17, pp.
8-10).
Dr. Robison said he did not see claimant again until
April 3, 1990, but understood that the company had made an
appointment for her for an evaluation on February 19, but K-
Mart had not notified claimant of that appointment.
Dr. Robison said did not know or have any information
that claimant was no longer to see Dr. Jones, the
chiropractor (Cl. Ex. 17, p. 11).
Dr. Robison said he did not place any restrictions or
limitations on the claimant and he did not know that
claimant had switched employment. The doctor acknowledged
that he did prescribe some medicine for the claimant and
that when he saw her back on April 9, 1990, she was still
having a lot of spasms and tenderness in her upper back and
he did recommend that she continue chiropractic therapy
which was helping her on an aggressive physical program. He
did not think at that time it was necessary to warrant an
orthopedic referral (Cl. Ex. 17, p. 16). Although Dr.
Robison indicated that at one time he determined a 10
percent impairment to claimant's body as a whole, he
emphasized that he does not do impairment ratings and is not
trained to do them and that his 10 percent is strictly his
opinion and a guess. He further indicated that it would be
fair to say that the deputy who may hear this case should
not rely upon his 10 percent opinion. He, likewise, was not
able to determine when claimant reached maximum medical
recovery because he hadn't seen her that much and her
appointments were so far apart (Cl. Ex. 17, p. 22).
Page 6
The doctor also understood that the motor vehicle
accident claimant had in August 1991 was not much of an
accident from what he heard from Dr. Jones.
Dr. Robison acknowledged that based on the examination
of claimant on August 21, 1989, he did send a report to
defendant indicating that claimant had a cervical muscle
strain with muscle spasms secondary to trauma (Cl. Ex. 17,
p. 28).
The doctor explained what can or cannot cause
claimant's headaches, namely, it is a complicated area with
many nerves, muscles and ligaments and an irritation to the
occipital nerve in the area could cause or explain
claimant's headaches. He also indicated that this is an
area where it is hard to objectively determine the cause or
whether there is actual headaches and one relies on
subjective complaints of the patient.
The doctor could not determine whether claimant would
have these headaches in the future as he has not seen the
claimant that much or seen her in follow-up but he assumed
since claimant has had this injury this long and still has
the complaints one could assume that claimant would continue
to have problems. He also indicated that future
chiropractic care or physical therapy of some type would be
beneficial to claimant with the injuries she has (Cl. Ex.
17, p. 32).
The doctor did acknowledge that on his April 9, 1990
visit that he objectively observed tenderness of claimant's
cervical strap muscles, particularly posteriorly along the
sternocleidomastoid muscles. These are muscles that go from
the sternum to the clavicle to the back and the mastoid
which are on the base of the skull posteriorly. He said
claimant on that day was tender along the trapezius
bilaterally which is the large muscle in the back that goes
up the back of the neck to the base of the skull and down
from the base of the skull in a trapezoid or a diamond
pattern, then to the base of the skull bilaterally out to
the corners of the shoulders and then down the small of the
back (Cl. Ex. 17, pp. 34, 35).
There are some medical reports or records which will
not necessarily be referred to in that the two doctors
involved, Dr. Jones and Dr. Robison referred to their
various reports and records in their deposition testimony.
Claimant's exhibits 6 is Dr. Jones' February 8, 1990
impairment rating to the whole body of 10 percent.
Claimant's exhibit 9 is a letter from Dr. Robison to
defendant employer. This letter touches on the issue of
authorized care as to the chiropractic treatment being given
to claimant. In this letter, the doctor indicates that as
long as claimant is improving or getting relief from
chiropractic treatment, he suspects she has not reached her
maximum medical improvement. He also seems to indicate that
since she has had her problems for approximately eight
Page 7
months, she may have a permanent impairment rating. The
undersigned believes this letter gives credence to the fact
that the authorized physician, Dr. Robison, is acknowledging
continued treatment by the chiropractor and as he indicated
in his deposition testimony, he thought the treatment she
was getting from the chiropractor would be similar or the
same as what she would get if he prescribed physical therapy
and therefore did not prescribe physical therapy.
Claimant's exhibit 10 is the April 7, 1992 letter of
Dr. Jones who examined claimant on April 2, 1992 for an
impairment rating requested by claimant's attorney. In this
letter, the doctor opined claimant had a final whole person
impairment of 20 percent.
Claimant's exhibit 13 is a January 13, 1991 record of a
Spencer Municipal Hospital admission in which the diagnosis
was muscle spasm in the neck. The hospital bill for this
visit was $88.31 and is in dispute. Defendant contends this
bill and treatment is not causally connected to any August
1989 injury and was from some other cause. The evidence
does not show there is another injury and it seems to be the
result of an exacerbation of her August 1989 injury.
Therefore, the undersigned finds the hospitalization is the
result of that August 1989 injury and, likewise, the bill
should be paid by defendant.
Claimant's exhibit 15 is the chiropractic bill of Dr.
Jones in which the stipulated balance of $1,640.80 is still
owed. Defendant's exhibit 1, page 97, is an October 16,
1989 letter from K-Mart to claimant, a copy of which was
sent to Dr. Jones in which they indicate that no further
chiropractic care will be covered under the workers'
compensation benefits and that Dr. Jones' services are not
authorized by this office. The undersigned touched upon
this area earlier. Notwithstanding this letter on which
defendant relies heavily as proving that Dr. Jones was not
authorized and therefore the amount of the bill is in
dispute for services rendered since around that date and are
not authorized, this does not eliminate or overcome the fact
that Dr. Robison in his testimony and his records okayed,
authorized, acknowledged or acquiesced in the type of
treatment that Dr. Jones was giving. It is very clear from
the record that had claimant not been getting treatment from
the chiropractor which was a form of physical therapy as far
as Dr. Robison is concerned, he would have prescribed the
same but was satisfied basically with what Dr. Jones was
doing.
It is obvious from hearing the testimony and the
positions of the parties that defendant is irritated because
the claimant was working such a short period of time for
defendant. Claimant began work July 20, 1989 and was
allegedly injured on August 10, 1989, and her last day of
work was August 13, 1989. Claimant left the employment not
because of her injury as she had already approximately two
weeks previously given notice to K-Mart that she was going
to quit for another job. To the defendant, the overall
factual situation looks suspicious because of the time
frames referred to above.
Page 8
Healing period or temporary total disability is not an
issue as claimant did not miss work because of the August
10, 1989 injury.
The undersigned finds that claimant was injured on
August 10, 1989, while working at K-Mart. The medical
evidence shows that claimant's complaints are mostly at this
current time subjective and yet there is evidence that there
was injury and muscle spasms and that these have occurred
off and on. Dr. Robison has observed some of these.
Although Dr. Robison was clear that much of claimant's
complaints are subjective and it is hard to make a specific
determination as to whether they are real or not, the
undersigned believes that there is sufficient evidence
taking everything as a whole that claimant is still having
some problems and that her August 10, 1989 injury has
resulted in claimant having a chronic condition resulting
therefrom which results in claimant having problems,
particularly when she does certain activities. Dr. Jones
also opines that claimant has a permanent impairment as a
result of the August 10, 1989 injury. There is no dispute
that claimant incurred an injury that arose out of and in
the course of her employment on August 10, 1989. The
dispute basically is to whether claimant has any permanent
disability and the extent of such permanent disability. The
undersigned finds that the greater weight of medical
evidence and testimony supports the fact that claimant did
incur a work-related injury on August 10, 1989, that has
caused claimant to suffer her current problems and has
resulted in a current impairment.
The undersigned believes that the extent of claimant's
current problems are not as extreme as the claimant wants
the undersigned or others to believe.
Claimant's employment and basically has been in the
area of word processing, cashiering, and working in fast
food restaurants or service type stores, stocking shelves,
cleaning and servicing customers. Her income has been
minimal and beginning around or a little above the minimum
wage with some increases through periodic raises or
promotions. Her salary or hourly wage at the time of
leaving K-Mart was $4.00 per hour. She was hired at $3.75
per hour (Def. 1, p. 141). She was working on a part-time
basis. At the time claimant was working at Super Valu, in
which she was terminated around February 1991, claimant was
making $5.00 per hour and when she began at Casey's in March
1991, she was making $4.75 per hour. While working at the
Happy Dog restaurant in California around October 1979 to
September 1985, her salary ranged from $3.55 to $6.00 per
hour at which time she and quit to go to cosmetology school.
Dr. Jones ultimately opined up to a 20 percent
permanent impairment after having originally opined a 10
percent permanent impairment. He explained his reason for
revising his original rating. Dr. Robison was reluctant to
opine any percentage as he does not do that and does not
have the expertise or experience but seemed to indicate that
if he had to, it would be around 10 percent. It is obvious
Page 9
from his reply that he did not want anyone to rely upon it.
It is also clear from his evidence that he believes claimant
has a permanent impairment even though at the present time
it is mainly subjective. As indicated earlier, he believes
that considering the nature of the injury and other factors,
claimant is suffering at least to some extent in that her
injury has caused a chronic condition that would have healed
by now and not having healed leaves him to opine there is a
permanent injury.
There are no restrictions placed on the claimant by
either doctor even though Dr. Jones seemed to indicate that
he does not place restrictions unless absolutely necessary
as that tends to hold the patient back from attempting and
trying to work through their problem.
There is no evidence of a loss of income. In fact,
claimant is making more now than she was making when she
left K-Mart. She was making $4.00 approximately at K-Mart
and now is making $5.15. It appears she is working full
time now and appears to be receiving other benefits wherein
at K-Mart she was part-time and did not receive other
benefits.
Claimant is young, 31 years of age, and in addition to
her high school education attended one year at a community
college in the criminal justice field. It appears she would
like to continue in this field. She does have a cosmetology
degree but does not seem to want to pursue that.
Taking into consideration claimant's age, her prior
medical and work history, her education, location and
severity of her injury, motivation, the fact that she had no
healing period, has lost no work, impairment, lack of
restrictions, no loss of income, and all the other criteria
used in determining industrial disability, the undersigned
finds that claimant has incurred a 7 percent industrial
disability. The benefits are to begin August 10, 1989.
Claimant contends that the chiropractor bill with a
balance of $1,640.88, should be paid by defendant.
Defendant contends it was not authorized and not causally
connected. Based on the prior comments concerning causal
connection, the undersigned finds that the chiropractor
bill, the $88.31 hospital bill, and the $299.71 drug bill
are causally connected to claimant's August 10, 1989 injury
and were incurred as a result of that work injury. As far
as authorization, the undersigned finds that Dr. Robison,
the company doctor, would have recommended claimant have
physical therapy but clearly further indicated that since
she was going to the chiropractor she should continue to do
so as he felt she was getting the therapy (chiropractic
treatment) and was receiving the same effect as any physical
therapy he would prescribe, which would be with someone
other than a chiropractor. Notwithstanding the letter
defendant wrote to claimant indicating the chiropractor was
not authorized, the undersigned finds the evidence is clear
that Dr. Robison, who was an authorized doctor, clearly gave
indication and the impression to claimant to continue. It
is also obvious that the doctor thought some treatment,
Page 10
physical therapy or chiropractic treatment, was necessary to
help claimant with her medical condition caused by the
August 10, 1989 injury. The undersigned therefore finds
that defendant shall pay the chiropractor bill, hospital
bill and drug bill.
The undersigned would call attention to the parties
that there was unnecessary or duplicated pages or exhibits
in this record. As an example but not necessarily limited
thereto is the fact that in defendant's exhibit 1, pages
144, 147 and 149 are identical and pages 145 and 148 are
identical. Also, the undersigned does not see the necessity
of claimant's registration card or release of information
record or the importance of an application for a fidelity
bond.
CONCLUSIONS OF LAW
The claimant has the burden of proving by a
preponderance of the evidence that the injury of August 10,
1989, is causally related to the disability on which she
now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516,
133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa
296, 18 N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman v. Central Telephone
Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
If 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 Railway Co.,
219 Iowa 587, 593, 258 N.W.2d 899, 902 (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 percentages 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 and inability to engage in employment for which
he is fitted. Olson v. Goodyear Service Stores, 255 Iowa
Page 11
1112, 1121, 125 N.W.2d 251, 257 (1963).
It is further concluded that:
Claimant incurred a work injury on August 10, 1989,
resulting in claimant having a permanent impairment to her
body as a whole and a chronic condition and a 7 percent
industrial disability.
As a result of claimant's August 10, 1989 work injury,
claimant has had no loss of income and no restrictions or
limitations placed on her by any medical doctor or
chiropractor.
Claimant incurred no healing period benefits as she
lost no time from work as a result of her August 10, 1989
injury.
Claimant incurred chiropractor bill that had a balance
due at the day of the hearing of $1,640.88. This bill was
indirectly authorized by a company authorized doctor and
defendant is to pay the same.
Claimant incurred an $88.31 hospital bill and a $299.71
drug bill which were causally connected to claimant's August
10, 1989 injury and should be paid by defendant. The
hospital bill resulted from an incident that exacerbated
claimant's August 10, 1989 injury but did not cause a new
injury.
Page 12
ORDER
THEREFORE, it is ordered:
That claimant is entitled to thirty-five (35) weeks of
permanent partial disability benefits at the weekly rate of
one hundred thirteen and 44/100 dollars ($113.44), beginning
August 10, 1989.
That defendant shall pay the following medical bills:
Rex J. Jones, D.C. $1,640.88
Spencer Municipal Hospital 88.31
Drug bill 299.71
Claimant shall be held harmless from liability thereon.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid. Defendant has paid no
disability benefits.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of August, 1992.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr David A Scott
Attorney at Law
407 Grand Ave
P O Box 3046
Spencer IA 51301
Mr Joel T Greer
Attorney at Law
112 W Church St
Marshalltown IA 50158
5-1108; 5-1803; 5-2503
Filed August 5, 1992
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
KATHY L. LONG, :
:
Claimant, :
: File No. 979258
vs. :
:
K-MART CORPORATION, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant. :
:
___________________________________________________________
5-1108; 5-1803
Found claimant's work injury caused no healing period, but
did cause a permanent impairment, no restrictions and a 7
percent industrial disability.
5-1108; 5-2503
Found defendant is responsible to pay claimant's
chiropractor, hospital and drug bill which resulted from
claimant's work injury.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
WILLIAM FORT, :
: File Nos. 979264
Claimant, : 979263
:
vs. : A P P E A L
:
IBP, INC., : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
INTRODOUCTION
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal.
ISSUES
Claimant states the following issues on appeal:
I. Whether claimant was entitled to healing period
benefits after being discharged from employer.
II. Whether claimant sustained permanent partial
disability as a result of work related injury and, if
so, its extent.
III. Whether claimant is entitled to reimbursement for
medical expenses.
FINDINGS OF FACT
The findings of fact contained in the proposed agency decision
filed March 30, 1992 are adopted as final agency action.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed March 30, 1992 are adopted as set forth below.
Segments designated by asterisks (*****) indicate portions of the
language from the proposed agency decision that have been
intentionally deleted and do not form a part of this final agency
decision. Segments designated by brackets ([ ]) indicate
language that is in addition to the language of the proposed
agency decision.
There is no dispute that claimant sustained work-related
injuries on July 25, 1990 and March 7, 1991. Claimant requests
healing period benefits from March 8, 1991 through December 6,
1991 when Dr. Shay indicated he had obtained maximum medical
improvement. Claimant also alleges that he is entitled to
permanent disability benefits based on Dr. Shay's assessment of
his back impairment and the visual loss in his right eye.
Page 2
*****Claimant has the burden of proof in this case. He must
show by a preponderance of the evidence that his injuries are
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 truer of fact.
Sondag, 220 N.W.2d at 907. Finally, the weight to be given to
such an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert and
other 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.
*****Claimant lost no time from work as a result of either
injury. No doctor took him off work for medical care and
treatment. Claimant returned to work the same day he injured his
back and although he worked with restrictions, no physician said
he was unable to work. Likewise, claimant was released to return
to work the same day he incurred his eye injury. The fact that
claimant voluntarily terminated his employment with employer by
refusing to cooperate with their request for a urine specimen, is
no fault of employer and does not entitle claimant to either
temporary total disability or healing period benefits.
Claimant relies solely on Dr. Shay to support his
contentions that he suffered a permanent impairment to his back.
Dr. Shay is not a medical physician, he is a chiropractor. Two
medical physicians, one a family practitioner and the other an
orthopedic surgeon, dispute Dr. Shay's findings that the claimant
is permanently impaired due to his back injury. Dr. Dean
released claimant to full activity with no restrictions on August
24, 1990. (Ex. 5) Dr. Smith, an orthopedic surgeon, noted that
x-rays of claimant's thoracic and lumbar spine were normal and
showed no degenerative changes, fractures or disc space
narrowing. He commented that claimant's complaints significantly
outweighed any objective abnormalities and in fact, he found
inconsistencies in claimant's physical examination leading the
undersigned to believe that he exaggerate his symptoms in order
to appear more disabled than he really was. In any event, Dr.
Smith concluded that based on the AMA guidelines, claimant did
not have any permanent impairment.
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
Page 3
(1981).
Giving greater weight to the findings of Dr. Smith rather
than Dr. Shay, it is concluded that claimant's subjective
complaints of pain are far out of proportion to clinical and
laboratory findings in the record and not entitled to significant
weight and consideration. Accordingly, claimant is not entitled
to disability benefits on file number 979263.
[Although claimant has failed to carry his burden of proof
that he has any resulting disability from his back injury,
nevertheless, the medical treatment provided by Dr. Shay was in
response to claimant's back injury at work. Defendants have
denied liability for claimant's injuries, and thus cannot deny
liability for claimant's medical treatment on the basis that it
was unauthorized. The treatment by Dr. Shay was clearly related
to claimant's back injury at work. The fact that Dr. Shay's
opinion on permanency was not given greater weight in the
determination of disability does not affect the fact that his
treatment was rendered in connection with claimant's work injury.
Defendant employer is liable for the medical bills of Dr. Shay.]
As to claimant's alleged permanent eye impairment, the
medical evidence leaves no doubt that claimant is not permanently
impaired. Dr. Sadeghi, a physician who specializes in the
diagnosis and medical and surgical treatment of diseases and
defects of the eye and related structures, stated emphatically
that claimant's eye injury did not cause any permanent damage.
(Ex. 4) Claimant's selected optometrist agreed with this
assessment. He stated that claimant's ocular health appeared
within normal limits and there was no permanent damage from his
March 1991 injury which affected either his cornea or lens.
(Ex. 6)
Accordingly, claimant has not met his burden of proof and
failed to show by a preponderance of the evidence that his eye
injury caused any permanent disability. Therefore, he takes
nothing in file number 979264.
The employer has the right to choose the provider of care in
workers' compensation cases, except where they have denied
liability for the injury. Iowa Code section 85.27. Claimant's
treatment by Dr. Shay was not authorized by defendant nor
causally related to the disability on which he now bases his
claim. Therefore, claimant is not entitled to be reimbursed for
expenses incurred for chiropractic treatments by Dr. Shay.
WHEREFORE, the decision of the deputy is affirmed and
modified.
ORDER
THEREFORE, it is ordered:
That claimant takes nothing in file number 979263.
That claimant is entitled to medical benefits for the
services of Dr. Shay in file number 979294.
That the parties shall each pay their own costs in this
Page 4
action pursuant to rule 343 IAC 4.33.
Signed and filed this ____ day of August, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. David W. Newell
Attorney at Law
323 East 2nd Street
P O Box 175
Muscatine, Iowa 52761
Mr. John M. Comer
Attorney at Law
P O Box 515
Dakota City, Nebraska 68731
5-1802; 5-1803; 2501
Filed August 31, 1993
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
WILLIAM FORT, :
: File Nos. 979264
Claimant, : 979263
:
vs. : A P P E A L
:
IBP, INC., : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
5-1802
Claimant is not entitled to either temporary total disability
benefits or healing period benefits. Claimant lost no time from
work as a result of a back injury on July 25, 1990. He returned
to work at the same rate of pay the same day he was injured.
Claimant had a temporary right eye injury when hot steaming lard
sprayed in his eye on March 7, 1991. He was released to return
to work that same day. Claimant was requested to give a urine
specimen as per company policy, to determine whether he was under
the influence of alcohol or drugs at the time of the injury.
Claimant gave two diluted specimens and refused to give a third.
He knew that the ramifications for refusing to cooperate was loss
of his job. The fact that claimant was separated from his job
with employer for good cause does not entitle him to temporary or
healing period benefits as of the day of separation March 8,
1991. No doctor ever took claimant off work for either injury.
5-1803
Claimant failed to prove by a preponderance of the evidence that
he sustained permanent injury to his back and right eye. An
orthopedic surgeon noted that claimant's thoracic and lumbar
spine x-rays were normal, with no degenerative changes, no
fractures or disc space narrowing. He noted that claimant's
subjective complaints significantly outweighed any objective
abnormalities.
As to claimant's eye injury, an ophthalmologist noted
emphatically that claimant's injury caused no permanent damage to
his eye. This was supported by claimant's own physician.
The greater weight of the evidence supports the finding that
claimant is not entitled to any permanent disability benefits as
a result of his eye injury.
2501
Although ultimately claimant was found to have suffered no
disability as a result of his work injury, his medical expenses
were compensable. The fact that the services were rendered by a
physician whose opinion on causal connection and extent of
impairment were rejected does not alter the fact that his
services were in response to the work injury and are compensable.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
WILLIAM FORT, :
:
Claimant, : File Nos. 979263
: 979264
vs. :
: A R B I T R A T I O N
IBP, INC., :
: D E C I S I O N
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
statement of the case
This is a proceeding in arbitration brought by William
Fort, claimant, against IBP, self-insured employer, to
recover benefits under the Iowa Workers' Compensation Act as
a result of injuries sustained on July 25, 1990 and March 7,
1991. This matter came on for hearing before the
undersigned deputy industrial commissioner on March 19,
1992. The record was considered fully submitted at the
close of the hearing. The record in this case consists of
testimony from claimant, Laester Smith, Sherri Lynn Wilson,
and Cheryl Schmitt; claimant's exhibits 1-6 and defendant's
exhibits A-F and H.
issues
Defendant admits that claimant sustained injuries on
July 25, 1990 and March 7, 1991, which arose out of and in
the course of employment with employer. The parties present
the following issues for resolution:
1. Whether claimant's injuries are a cause of
temporary and permanent disability;
2. The extent of entitlement to weekly compensation
for temporary and permanent disability benefits, if any;
3. The number of exemptions to which claimant is
entitled; and,
4. The extent of entitlement to medical benefits under
Iowa Code section 85.27.
Page 2
findings of fact
The undersigned has carefully considered all of the
testimony given at the hearing, arguments made, evidence
contained in the exhibits, and makes the following findings:
Claimant was born on December 10, 1957, and completed
the eleventh grade of school. He received his GED
certificate while serving in the US Army. He attended two
years of college in New Orleans and studied drafting. He
commenced employment with IBP as a laborer on August 23,
1989. On July 25, 1990, he injured his back when a catwalk
on which he was standing gave way. He lost no time from
work due to this injury. On March 7, 1991, hot lard
splashed into his right eye while changing steam lines. His
employment with IBP ended on March 9, 1991.
Claimant's medical file card indicates that he was sent
by employer to Muscatine Health Center on July 28, 1990, for
the injury he incurred on July 25, 1990. On August 3,
1990, the company sent claimant to Forrest Dean, M.D., for
evaluation. He diagnosed low back strain and prescribed
Naprosyn and Darvocet for severe pain. He limited
claimant's work activities and employer put him on light
duty at the same rate of pay. Claimant was not taken off
work because of back pain. (Exhibit 5).
Dr. Dean last saw claimant on June 5, 1991. At that
time, it was his impression that claimant had reached
maximum medical improvement and had no permanent back
impairment. (Ex. B).
On March 7, 1991, claimant was admitted to Muscatine
General Hospital Emergency Room with complaints of burning
and watering of his right eye after it was sprayed with hot
steam and lard. His eye was irrigated and eye drops were
inserted. His eye was then patched.
On March 8, 1991, he was seen by opthalmologist,
Jahangir Sadeghi, M.D. On April 1, 1991, Dr. Sadeghi
reported that, on examination, claimant's visual acuity was
20/300 in the right eye. There was some burning of the
cornea. Again, eye drops were inserted and his eye was
patched. When seen for follow-up evaluation on March 13,
1991, his visual acuity was measured 20/200-1 in the right
eye. Although his cornea still had some effect from the
burn, it was much less than before. The rest of his eye
examination was normal. Dr. Sadeghi indicated that
claimant's poor vision in his right eye was the result of
needing eye glasses and not because of his injury. It was
his opinion that the burn did not cause any permanent damage
to claimant's eye. (Ex. 4).
No physician took claimant off work due to his eye
injury. In fact, he was released for restricted duty on
March 7, 1991, the restriction being not to work around
moving machinery. (Ex. 5).
Testimony taken at the hearing reveals that claimant's
employment with employer ended on March 8, 1991. As per
Page 3
company policy, claimant was asked to produce a urine sample
after the accident on March 7, 1991, to determine whether he
was either under the influence of alcohol or drugs when the
accident occurred. Claimant produced two specimens both of
which had thermometer readings below an acceptable range.
He was asked for a third sample but he refused. Claimant
understood that refusing to provide an acceptable urine
sample would jeopardize his status as an employee with the
company. Claimant felt he was being harassed and refused to
cooperate with employer and walked off the job.
Without authorization from employer, claimant initiated
chiropractic treatment with Jeffrey Shay, D.C., on July 25,
1991. While under the care of Dr. Shay, claimant had
cervical and lumbar x-rays taken and was treated with
electrical stimulation, manipulation, and ultrasound.
Claimant has been charged $815 by Dr. Shay which employer
has refused to pay. (Ex. 3).
On September 23, 1991, Dr. Shay reported to claimant's
attorney that, in his opinion, claimant has suffered a
post-traumatic sprain to both his cervical and lumbar areas.
He based his findings on a thermographic study performed on
September 12, 1991, and x-rays of the cervical and lumbar
spine on July 25, 1991 and September 12, 1991. (Ex. 1)
On December 4, 1991, Dr. Shay gave claimant with an
impairment rating of 12 percent based on findings from range
of motion studies of the cervical and lumbar spine. (Ex.
2).
Employer referred claimant to Koert R. Smith, M.D.,
orthopedic surgeon, for evaluation on February 7, 1992. In
addition to a comprehensive examination, x-rays were
obtained of claimant's thoracic and lumbar spine. These
were normal and revealed no degenerative changes, fractures
or disc space narrowing. Dr. Smith's assessment was
thoracic lumbar spine contusion, with subjective complaints
that significantly outweigh any objective abnormalities. He
noted conflicting physical findings on examination where
straight leg raising was negative in a sitting position but
positive in a supine position. He also noted active motor
testing inconsistencies demonstrated by claimant's ability
to walk on his heels and toes with no difficulty and able to
squat on both legs with also no apparent difficulty but
breaking against resistance with active motor testing. It
was Dr. Smith's opinion that claimant does not have any
permanent impairment to his back as a result of his July 25,
1990 injury and no restrictions were imposed. (Ex. A).
Claimant was referred by his attorney to Brian Davis,
O.D., optometrist, for evaluation on December 30, 1991. Mr.
Davis reported on January 9, 1992, in pertinent part that:
"William's ocular health appeared within normal limits.
There appeared to be no permanent damage from his March
incidents affecting neither the cornea or lens of the eye."
He indicated that claimant's previous prescription was
causing his right eye to work excessively hard and was
responsible for complaints of burning and watering in that
eye. Mr. Davis gave him a new prescription. (Ex. 6).
Page 4
conclusions of law
There is no dispute that claimant sustained
work-related injuries on July 25, 1990 and March 7, 1991.
Claimant requests healing period benefits from March 8, 1991
through December 6, 1991 when Dr. Shay indicated he had
obtained maximum medical improvement. Claimant also alleges
that he is entitled to permanent disability benefits based
on Dr. Shay's assessment of his back impairment and the
visual loss in his right eye.
Claimant's contentions are without merit. Claimant has
the burden of proof in this case. He must show by a
preponderance of the evidence that his injuries are 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 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.
While the evidence clearly demonstrates that claimant
suffered some temporary disability as a result of his July
25, 1990 back injury and his March 7, 1991 eye injury,
claimant lost no time from work as a result of either
injury. No doctor took him off work for medical care and
treatment. Claimant returned to work the same day he
injured his back and although he worked with restrictions,
no physician said he was unable to work. Likewise, claimant
was released to return to work the same day he incurred his
eye injury. The fact that claimant voluntarily terminated
his employment with employer by refusing to cooperate with
their request for a urine specimen, is no fault of employer
and does not entitle claimant to either temporary total
disability or healing period benefits.
Claimant relies solely on Dr. Shay to support his
contentions that he suffered a permanent impairment to his
back. Dr. Shay is not a medical physician, he is a
chiropractor. Two medical physicians, one a family
practitioner and the other an orthopedic surgeon, dispute
Page 5
Dr. Shay's findings that the claimant is permanently
impaired due to his back injury. Dr. Dean released claimant
to full activity with no restrictions on August 24, 1990.
(Ex. 5). Dr. Smith, an orthopedic surgeon, noted that
x-rays of claimant's thoracic and lumbar spine were normal
and showed no degenerative changes, fractures or disc space
narrowing. He commented that claimant's complaints
significantly outweighed any objective abnormalities and in
fact, he found inconsistencies in claimant's physical
examination leading the undersigned to believe that he
exaggerate his symptoms in order to appear more disabled
than he really was. In any event, Dr. Smith concluded that
based on the AMA guidelines, claimant did not have any
permanent impairment.
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).
Giving greater weight to the findings of Dr. Smith
rather than Dr. Shay, the undersigned concludes that
claimant's subjective complaints of pain are far out of
proportion to clinical and laboratory findings in the record
and not entitled to significant weight and consideration.
Accordingly, claimant takes nothing in file number 979263.
As to claimant's alleged permanent eye impairment, the
medical evidence leaves no doubt that claimant is not
permanently impaired. Dr. Sadeghi, a physician who
specializes in the diagnosis and medical and surgical
treatment of diseases and defects of the eye and related
structures, stated emphatically that claimant's eye injury
did not cause any permanent damage. (Ex. 4). Claimant's
selected optometrist agreed with this assessment. He stated
that claimant's ocular health appeared within normal limits
and there was no permanent damage from his March 1991 injury
which affected either his cornea or lens. (Ex. 6).
Accordingly, claimant has not met his burden of proof
and failed to show by a preponderance of the evidence that
his eye injury caused any permanent disability. Therefore,
he takes nothing in file number 979264.
The employer has the right to choose the provider of
care in workers' compensation cases, except where they have
denied liability for the injury. Iowa Code section 85.27.
Claimant's treatment by Dr. Shay was not authorized by
defendant nor causally related to the disability on which he
now bases his claim. Therefore, claimant is not entitled to
be reimbursed for expenses incurred for chiropractic
treatments by Dr. Shay.
order
THEREFORE, it is ordered:
Claimant takes nothing in file numbers 979263 and
979264.
Page 6
This issue is dispositive of the entire case and
further analysis is unnecessary.
The parties shall each pay their own costs in this
action pursuant to rule 343 IAC 4.33.
Signed and filed this ____ day of March, 1992.
________________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr David W Newell
Attorney at Law
323 East 2nd Street
PO Box 175
Muscatine Iowa 52761
Ms Marie L Welsh
Attorney at Law
PO Box 515
Dept #41
Dakota City Nebraska 68731
Page 1
5-1802 - 5-1803
Filed March 30, 1992
JEAN M. INGRASSIA
before the iowa industrial commissioner
____________________________________________________________
:
WILLIAM FORT, :
:
Claimant, : File Nos. 979263
: 979264
vs. :
: A R B I T R A T I O N
IBP, INC., :
: D E C I S I O N
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
5-1802
Claimant is not entitled to either temporary total
disability benefits or healing period benefits. Claimant
lost no time from work as a result of a back injury on July
25, 1990. He returned to work at the same rate of pay the
same day he was injured.
Claimant had a temporary right eye injury when hot steaming
lard sprayed in his eye on March 7, 1991. He was released
to return to work that same day. Claimant was requested to
give a urine specimen as per company policy, to determine
whether he was under the influence of alcohol or drugs at
the time of the injury. Claimant gave two diluted specimens
and refused to give a third. He knew that the ramifications
for refusing to cooperate was loss of his job. The fact
that claimant was separated from his job with employer for
good cause does not entitle him to temporary or healing
period benefits as of the day of separation March 8, 1991.
No doctor ever took claimant off work for either injury.
5-1803
Claimant failed to prove by a preponderance of the evidence
that he sustained permanent injury to his back and right
eye. An orthopedic surgeon noted that claimant's thoracic
and lumbar spine x-rays were normal, with no degenerative
changes, no fractures or disc space narrowing. He noted
that claimant's subjective complaints significantly
outweighed any objective abnormalities.
As to claimant's eye injury, an ophthalmologist noted
emphatically that claimant's injury caused no permanent
damage to his eye. This was supported by claimant's own
physician.
The greater weight of the evidence supports the finding that
claimant is not entitled to any permanent disability
Page 2
benefits as a result of his eye injury.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
KEVIN SHIPLEY, File No. 979288
Claimant,
A R B I T R A T I O N
vs.
D E C I S I O N
DELAVAN, INC.,
Employer,
Defendant.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Kevin
Shipley, claimant, against Delavan, Inc., employer, to
recover benefits under the Iowa Workers' Compensation Act
for an alleged injury occurring on or about May 22, 1990.
This matter was to come on for hearing July 13, 1992, in Des
Moines, Iowa, at 1:30 p.m.
The undersigned and the defendants were present. Claimant
did not appear.
Claimant failed to present any evidence in support of the
allegations found in his original notice and petition.
Neither an agreement for settlement nor a request for
continuance is on file with the industrial commissioner.
Claimant has the burden of proving by a preponderance of the
evidence that he received an injury which arose out of and
in the course of his employment. McDowell v. Town of
Clarksville, 241 N.W.2d 904 (Iowa 1976).
WHEREFORE, IT IS FOUND:
1. Claimant did not appear at the scheduled time and place
of hearing.
2. The undersigned deputy industrial commissioner was
present and prepared to proceed to hearing.
3. Neither an agreement for settlement nor a request for
continuance is on file with the industrial commissioner.
4. Claimant failed to present any evidence to support
allegations of a compensable work injury.
Page 2
THEREFORE, it is ordered:
Claimant has failed to meet his burden of proof that he
sustained an injury which arose out of and in the course of
his employment.
THEREFORE, it is ordered:
That claimant take nothing from this proceeding.
That costs are taxed to the claimant. Division of
Industrial Services Rule 343-4.33.
Signed and filed this ____ day of July, 1992.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Kevin Shipley
2008 Lay Street
Des Moines, Iowa 50317
CERTIFIED & REGULAR MAIL
Mr. Tim Wegman
Attorney at Law
218 Sixth Avenue
P.O. Box 9130
Des Moines, Iowa 50306-9130
5-1400; 5-1402
Filed July 16, 1992
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
KEVIN SHIPLEY, File No. 979288
Claimant,
A R B I T R A T I O N
vs.
D E C I S I O N
DELAVAN, INC.,
Employer,
Defendant.
___________________________________________________________
5-1400; 5-1402
Claimant did not appear at the hearing. No evidence in
support of allegations of a compensable work injury was
presented and claimant therefore failed to meet her burden
of proof.