BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
GLENDA EDENBURN,
Claimant,
vs.
File No. 980076
FOOD SERVICE & DISTRIBUTING
COMPANY, INC., A R B I T R A T I O N
Employer, D E C I S I O N
and
ALLIED GROUP,
Insurance Carrier,
Defendants.
________________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on March 1, 1995, at Burlington, Iowa.
This is a proceeding in arbitration wherein claimant seeks compensation
for permanent partial disability benefits as a result of an alleged
injury occurring on October 10, 1990. The record in the proceeding
consists of the testimony of the claimant, Brendan Markey and joint
exhibits A through E.
ISSUES
The issues for resolution are:
Whether an injury arose out of and in the course of claimant's
employment on October 10, 1990.
Whether there is any causal connection as to claimant's alleged
permanent disability and the alleged October 10, 1990 injury.
The extent of claimant's permanent disability and entitlement to
disability benefits, if any.
An 85.27 medical benefits issue, the issue being causal connection and
reasonable and necessary. The amount in dispute being $1,693.65,
defendant contending the medical had nothing to do with claimant's
injury.
FINDINGS OF FACT
The undersigned deputy having heard the testimony and considered all
the evidence finds that:
Claimant is 52 years old. She began working for the defendant
employer, who is also known as Automatic Vending Company, in August
1985. She indicated she had no injuries, physical problems or
restrictions at that time and was able to do her work.
Claimant acknowledges she broke her arm in the eighth grade, when she
was 12 to 13 years old, but contends she fully recovered and never had
restricted activity to her right arm.
Claimant described the nature of her work, which was making sandwiches
and desserts at a sandwich and dessert table. She also cut up lettuce
for salads and made cakes and cookies during part of her employment
with defendant employer. The nature of defendant's business is making
food for vending machines and cafeterias.
Claimant testified that she first noticed right arm, shoulder and neck
problems to her body about one and one-half months after she started
working at defendant employer. Claimant then indicated that three to
four months before her surgery in July 1988, she was having problems.
It appears this surgery involved median nerve damage and carpal tunnel.
Claimant made no claim for workers' compensation as claimant did not
think it was work related. Claimant returned to work in March 1989 and
contends she had no restrictions and was able to return to the work she
was doing. Claimant further described the nature of work and what she
does in her work, which includes sealing; putting meat and lettuce on
bread; wrapping; etc. Claimant indicated that in 1989 she started
using a sealing machine which they did not have available prior to that
time. She contends this caused her arm to swell up and hurt; it also
caused her shoulder and neck to hurt. Claimant described the various
medical attention she received and the limitations she had at different
times as far as lifting, repetitive motion, etc.
Claimant initially indicated that when she was on limited duty working
six hours a day she had to do enough work as if she had worked eight
hours. Only through cross-examination and finding reason to what she
had said, it is obvious that claimant worked six hours and did six
hours of work. When she left the sandwich table to go home after six
hours there were others remaining to do work for their additional two
hours.
Claimant quit her job August 14, 1992. She contended she couldn't
handle the work any more as her arm and shoulder would swell up and
were hurting. She had neck pains and headaches. Claimant states she
is now working for All for One, which is a dollar store, as a sales
clerk and also is on call as an activity person for a nursing home.
She contends she does not use her right arm, at least continuously, and
is able to do the work at her current job, but her shoulder and neck
were giving her problems.
On cross-examination claimant was asked concerning the original
fracture of her right forearm 30 years ago which had to be refractured
two times after that and set with pins. Exhibit B, page 2, reflects
that claimant has had problems over many years since the fracture 30
years ago and that she had additional median nerve with carpal tunnel
release and release of the pronator teres and superficialis swing
proximally, in July 1988. She acknowledges she made no claim for that
particular injury or event. The record indicates, as well as
claimant's testimony, that after she quit her job with the defendant
employer in August 1992, her problems were basically alleviated or she
had only minimal problems.
Claimant acknowledged that when she began working for All for One her
problems increased with the new job as a cashier. Also in December
1991, she indicated that she was also doing more sewing. (Joint
Exhibit 2, page 20) Claimant again acknowledged that she was not
having problems again until she began working at All for One as a
cashier.
Claimant does not remember being offered a Case Cafeteria job before
quitting defendant employer. She acknowledged that no one at defendant
employer said she had to quit or that she would be discharged. She
acknowledges she returned to work eight hours per day before she quit.
(Jt. Ex. D, p. 3)
It appears to the undersigned this claimant has had problems for many
years and that they originally began when she had her serious arm
injury approximately 30 years ago. There is no question that
repetitive work affects, reactivates or agitates claimant's arm
condition and when this is aggravated, she has pains in other parts of
her body (in this case, her neck and shoulder).
The record is clear that when claimant quit her job with the defendant
employer her problems eased and were basically alleviated, and then
when she began work again for All for One, they returned. It is
obvious that claimant must be careful of doing repetitive work; but the
undersigned finds that this condition is not because of an injury
cumulative or other wise at the defendant employer, but because of a
condition she has had over the years due to her original injury 30
years ago.
The undersigned questions why claimant left this job. It seems that
the employer was not only accommodating her, but was going to whatever
extremes necessary to make it easier and simpler for the claimant. It
doesn't seem like the job she had was that strenuous in nature anyway,
but the employer was accommodating her. The undersigned further finds
that claimant's work at defendant employer did not substantially and
materially heighten claimant's pre-existing condition to any extent of
causing any permanent impairment or disability. When claimant would
leave her job or work a few hours her condition improved. Claimant's
work at All for One irritated claimant's condition which the
undersigned believes is agitating a condition originally begun
approximately 30 years ago. The undersigned finds that claimant did
have a temporary period in which her condition was aggravated and
claimant received 25.286 weeks of temporary partial benefits and one
week of temporary total disability benefits. The undersigned believes
this is all that claimant is entitled to.
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).
The claimant has the burden of proving by a preponderance of the
evidence that the injury is a proximate cause of the disability on
which the claim is based. A cause is proximate if it is a substantial
factor in bringing about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal connection is
probable rather than merely possible. Blacksmith v. All-American,
Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc.,
215 N.W.2d 296 (Iowa 1974).
The question of causal connection is essentially within the domain of
expert testimony. The expert medical evidence must be considered with
all other evidence introduced bearing on the causal connection between
the injury and the disability. The weight to be given to any expert
opinion is determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as other
surrounding circumstances. The expert opinion may be accepted or
rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa
1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
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).
It is further concluded that claimant incurred a temporary aggravation
of her right upper extremity which arose out of and in the course of
her employment on October 10, 1990, causing claimant to incur 25.286
weeks of temporary partial disability and one week of temporary total
disability at the rate of $120.15.
It is further concluded that claimant incurred no permanent impairment
to her right upper extremity nor to her body as a whole.
It is further concluded that the medical expenses in dispute amounting
to $1,693.65 were incurred not as a result of any injury arising out of
and in the course of claimant's employment, and therefore defendants
are not responsible for payment of said sum.
ORDER
THEREFORE IT IS ORDERED THAT:
Claimant takes nothing further from these proceedings. Claimant has
received all she is entitled to.
Defendants will be given credit for the twenty-five point two eight six
(25.286) weeks of temporary partial disability and one (1) week of
temporary total disability that defendants paid to claimant at the rate
of one hundred twenty and 15/100 dollars ($120.15).
The costs are to be divided equally among the parties.
Signed and filed this _____ day of March, 1995.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. William Bauer
Attorney at Law
100 Valley Street
PO Box 517
Burlington, Iowa 52601
Ms. Deborah A. Dubik
Attorney at Law
111 East Third Street-Ste 600
Davenport, Iowa 52801-1596
5-1100; 5-1108
5-1801; 5-1801.1;
5-2500
Filed March 28, 1995
BERNARD J. O'MALLEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
GLENDA EDENBURN,
Claimant,
vs.
File No. 980076
FOOD SERVICE & DISTRIBUTING
COMPANY, INC., A R B I T R A T I O N
Employer, D E C I S I O N
and
ALLIED GROUP,
Insurance Carrier,
Defendants.
________________________________________________________________
5-1100; 5-1108; 5-1801; 5-1801.1; 5-2500
Found claimant incurred an injury that arose out of and in the course
of claimant's employment causing 25.286 weeks of temporary partial
disability and one week of temporary total disability. Claimant was
not allowed $1,693.65 for medical.
Claimant recovered nothing more than she had already been paid.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
DEBBIE ELLIS,
Claimant,
vs. File Nos. 980097/993913
989779
LIBERTY MUTUAL INSURANCE
COMPANY,
A P P E A L
Employer,
D E C I S I O N
and
LUMBERMENS MUTUAL CASUALTY
COMPANY,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
July 29, 1993 is affirmed and is adopted as the final agency
action in this case.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of November, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Steven C. Jayne
Attorney at Law
5835 Grand Ave., Ste 201
Des Moines, Iowa 50312
Mr. Joseph S. Cortese II
Attorney at Law
500 Liberty Bldg.
Des Moines, Iowa 50309
5-1803
Filed November 30, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DEBBIE ELLIS,
Claimant,
vs. File Nos. 980097/993913
989779
LIBERTY MUTUAL INSURANCE
COMPANY,
A P P E A L
Employer,
D E C I S I O N
and
LUMBERMENS MUTUAL CASUALTY
COMPANY,
Insurance Carrier,
Defendants.
____________________________________________________________
5-1803
Claimant sustained an injury to her right wrist, which
aggravated a preexisting psychological condition.
Relying on a recent Iowa Supreme Court case, claimant
proved entitlement to industrial disability benefits, and
was awarded 100 weeks of permanent partial disability
benefits. See, Mortimer v. Fruehauf.
Claimant's profile includes: 34 years of age; little
motivation to return to work; severe lifting restriction of
five pounds; limited grasping and grabbing ability; and,
fragile mental state.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DEBBIE ELLIS,
Claimant,
vs.
File Nos. 980097 989779
LIBERTY MUTUAL INSURANCE 993913
COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
LUMBERMAN'S MUTUAL CASUALTY
COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by
claimant, Debbie Ellis, against her former employer, Liberty
Mutual Insurance Company and its insurance carrier,
Lumberman's Mutual Casualty Company. Ms. Ellis filed three
petitions with injury dates of March 19, 1991 (agency file
number 980097), March 29, 1991 (agency file number 993913)
and April 8, 1991 (agency file number 989779). The matter
came on for hearing before the undersigned deputy industrial
commissioner on May 25, 1993 at Des Moines, Iowa.
The record in this case consists of testimony from the
claimant; claimant's husband, Leonard Ellis; Jeff Johnson, a
vocational rehabilitation expert; and, Susan White, a
vocational rehabilitation expert.
ISSUES
The parties submit the following issues for resolution:
1. Whether any of the injuries caused permanent
disability;
2. Whether claimant has sustained a scheduled member
injury, or an injury to the body as a whole;
3. Whether some of the medical treatment incurred was
reasonable and necessary;
4. Whether some of the medical treatment incurred was
causally connected to the work injuries; and,
5. Whether some of the medical expenses incurred were
authorized by the defendants.
FINDINGS OF FACT
Page 2
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
Claimant, Debbie Ellis was 34 years of age at the time
of the hearing. She is married and has one daughter, age
15.
Claimant completed the ninth grade in school, and
earned her General Equivalency Degree in 1985. She has also
taken courses in an administration clerk program.
Ms. Ellis has a varied work history. From 1976 through
1986, she worked primarily in the janitorial services field.
For a brief period of time, she worked for Farm Bureau in
the filing department, and then worked as a private
housekeeper, performing such tasks as dusting, vacuuming,
washing dishes, gardening, cleaning cars and taking care of
animals.
In 1987, claimant began working for the defendant
employer. Her first position was as a file clerk, a
position she held for approximately two years. Her duties
included filing all paperwork, inserting materials into
files, locating files, and photocopying documents.
In January of 1989, claimant became a payment processor
on the SUS desk. In this position, she processed all
workers' compensation claims which did not involved loss of
time from work. She received on-the-job-training in
computer skills, and her primary duties included keying in
information from first reports of injury, including medical
notations and other notes from the claims forms. Claimant's
functions included recitation of medical payments, provider
names and type of medical services were rendered. During
her testimony, claimant indicated that 7 hours and 15
minutes of her 8 hour day were spent working at a computer
keyboard entering or typing in information. The official
job description is entered into evidence as Claimant's
Exhibit 4. A report kept by claimant's supervisor records
monthly inputs, and shows that claimant keyed in an average
of 26 SUS reports per day, or 529 per month. This report
does not reflect the number of medical reports and bills, as
well as the number of searches for certain information were
performed by claimant. (Claimant's Exhibit 5).
The record shows that claimant has been cautioned by
her employer about absenteeism. In December of 1990, she
visited the emergency room and was taken off of work for
several days due to an anxiety attack. Claimant blamed the
attack on sinuses. A job performance evaluation dated
January 7, 2992 reveals that claimant's problem with
attendance was discussed.
While claimant testified that she first experienced
pain, numbness and tingling in her arms in September of
1990, she first reported these symptoms to her supervisor in
March of 1991. She reported to Richard Reel, D.O., her
family physician located at the Mercy Medical Clinic in Des
Moines, Iowa. Medical records indicate that on March 22,
1991, she complained of pain and numbness in her right hand,
Page 3
sensations she had been experiencing for the past six
months. Range of motions tests of the wrist were within
normal limits, and results of the Phalens and Tinels tests
were negative. The initial diagnosis was that of tendinitis,
and she was given voltaren. (Joint Exhibit 2, page 31).
One week later, claimant returned to the clinic, and
was once again assessed as having tendinitis. She was given
a cock-up wrist splint, Anaprox, and was told to soak her
wrist. She was taken off of work for one week. (Jt. Ex. 2,
p. 31)
After several more visits to the Mercy Medical Clinic
in April, 1991, claimant began to complain of pain in her
right arm, hand and shoulder. She was given additional
medication, was taken off of work (Jt. Ex. 2, p. 32-34) and
was referred to Timothy G. Kenney, M.D., an orthopaedic
specialist, whom she saw on April 25, 1991. (Jt. Ex. 2, pp.
32-34, 39; Jt. Ex. 4, p. 6). Dr. Kenney performed an
examination which showed that claimant had mild, diffuse
edema of the entire right hand, wrist and forearm. She
displayed full range of motion of the elbow and wrist, with
slight pain on flexion. Tinel's sign was negative, but
Phalen's sign was mildly positive on the right wrist. He
believed that claimant had components of carpal tunnel
syndrome and forearm flexor tendinitis due to cumulative
trauma disorder. Dr. Kenney recommended an EMG and nerve
conduction studies to evaluate the median nerve and physical
therapy. Claimant was restricted to left-handed work only,
and begin physical therapy at the Mercy Hospital Medical
Center, where her therapist was Janet Darling, O.T.R. (Jt.
Ex. 4, p. 2; p. 7; p. 59).
Progress notes from the therapist begin on page 41 of
Joint Exhibit 2. For the next several months, claimant
underwent different modalities of treatment, including heat,
message and exercises, and eventually showed some
improvement. (Jt. ex. 2, p. 60). She returned to Dr.
Kenney (Jt. ex. 2, pp. 41-45), and to the Mercy Medical
Clinic (Jt. Ex. 2, pp. 35-36) in June, 1991. On follow-up
with Dr. Kenney, claimant reported that although she felt
some improvement from the last visit, she still experienced
pain if she tried any grasping or lifting activities with
her right upper extremity. His examination showed mild,
diffuse soft tissue swelling of the entire right hand, with
tenderness over the forearm flexors and extensors. Range of
motion tests performed on the wrist elicited pain. He
continued to diagnose a cumulative trauma disorder with
forearm flexor and extensor tendinitis with a component of
sympathetic dystrophy. He recommended additional physical
therapy, and took claimant off of work, and requested a
follow-up evaluation in one month. Two weeks later, Dr.
Kenny was removed from the case, and the insurance company
designated Senesio Misol, M.D., as the treating physician.
(Jt. Ex. 4, p. 3; pp. 8-11). Claimant did continue physical
therapy with Ms. Darling, and these records note some
improvement. (Jt. Ex. 2, pp. 49-58).
Claimant underwent the EMG and nerve conduction study
in July of 1991. The results of the test were within normal
Page 4
limits, and it was recommended that she return to "some
other form of employment where no repetitious use of the
fingers and wrist is required." No surgical intervention
was recommended. (Jt. Ex. 4, pp. 4-5).
In August of 1991, Dr. Misol stated that he believed
claimant suffered from "functional carpal tunnel syndrome,"
and determined that she had reached maximum medical
improvement as of August 5, 1991. He was unable to
determine any percentage of physical impairment because
there is no way to rate this type of condition under the AMA
Guides and tables. He did state the claimant would benefit
from a job where repetitious moving of the fingers and
flexor tendons would not be required. This would involved
no opening and closing of the fingers, and no grasping and
no lifting of more than five pounds at a time. (Jt. Ex. 4,
p. 15).
Apparently, claimant applied for Social Security
Disability benefits in October of 1991. (Jt. Ex. 4, pp.
16-18). She was denied benefits in January, March and April
of 1992, and February of 1993. (Defendant's exhibit A).
It appears that Dr. Misol again examined claimant in
January of 1992. His diagnosis was dynamic carpal tunnel
syndrome and flexor tendinitis. He instructed claimant not
to lift more than five pounds and not to perform repetitive
"grasping or grabbing." (Jt. Ex. 4, p. 29-30).
In June of 1992, Dr. Misol clarified the term
"functional carpal tunnel syndrome" (also called dynamic
carpal tunnel syndrome) by stating that this diagnosis is
made when a patient experiences numbness and pain in the
wrist and/or hand when moving the hand whereby the median
nerve is compressed by the retinacular ligament. Dr. Misol
went on to state that he believed claimant suffered from
this condition as well as flexor tendinitis. He believed
the condition permanent, and rendered his professional
medical opinion that the condition had been caused by
claimant's work at Liberty Mutual. Dr. Misol stated that
claimant should lift no more than five pounds on a
repetitive basis, and would not be able to return to her
former employment duties unless the repetitive activities
and weight restrictions were observed. He did believe that
claimant was employable. (Jt. Ex. 4, pp. 20-21).
In September of 1992, Dr. Misol wrote a reply letter to
the attorney representing the insurance company and
employer. He reiterated that claimant's physical symptoms
in her wrist/hand developed when she performed repetitive
activities. (Jt. Ex. 4, p. 24-25).
Claimant has a long-standing history of treatment for
depression. These records reveal that claimant has
complained of being tired, sleeplessness, headaches, crying,
and encountering much stress. (Jt. Ex. 1; Jt. Ex. 3).
In November of 1992, James Gallagher, M.D., provided a
psychiatric evaluation for the Disability Determination
Services Bureau. Dr. Gallagher diagnosed claimant's
Page 5
condition as a moderate to severe degree of depression. His
impression was that claimant was close to a psychiatric
hospitalization due to both her depression and her physical
problems. Her tolerance for stress was poor, and claimant
was not hopeful about future employment. He noted that
claimant was very tearful, and would have difficulties with
motivation and energy levels. (Jt. Ex. 5, pp. 1-6).
At the request of claimant's attorney, Hector Cavallin,
M.D., a psychiatrist provided a report after his examination
of claimant on February 18, 1993. Dr. Cavallin reviewed
claimant's medical documents, including previous psychiatric
examinations by Dr. Gallagher in 1992 and previous notes
stemming from psychiatric treatment at the McFarland Clinic
in Ames in 1978. Dr. Cavallin notes that claimant has a
long history of chronic depression, and has been taking
Immapramine, an antidepressant, off and on since the first
diagnosis of depression in 1978, when claimant was 19 years
old. Apparently, claimant was continuing to take this
medication at the time of the evaluation. After examining
claimant, Dr. Cavallin diagnosed a chronic, severe
depression disorder. He stated that in spite of the history
of chronic depression, claimant had been able to work, and
that since the diagnosis of the carpal tunnel syndrome, her
depression was aggravated and had become a major depressive
disorder. It was his opinion that claimant was permanently
disabled, and would not be able to return to any occupation.
He believed that her level of pain and distress prevented
her from being capable of carrying out any gainful
employment. He predicted that claimant would not be able to
attend work regularly, would suffer lapses in concentration,
and would not be able to maintain the pace of a regular
schedule. He further surmised that claimant would not be
able to tolerate the stress of being supervised and would
become easily distracted by co-workers. (Jt. Ex. 6).
Dr. Gallagher provided a follow-up report in March of
1993. He clarified that claimant suffered from both a
dysthymic disorder and a major depressive disorder, and he
stated that claimant had a significant decrease in energy
and the ability to concentrate. Again, he believed that
both the physical problems encountered from the carpal
tunnel syndrome and the mental problems severely limited
claimant's ability to work and perform daily living
activities. (Jt. Ex. 5, pp. 7-9).
Jeff Johnson, a rehabilitation consultant wrote a
report which was entered into the record as Joint Exhibit 7.
The report, dated March 21, 1993, memorializes claimant's
medical history with respect to the right upper extremity,
as well as the subjective perceptions of limitations;
motivational considerations; claimant's educational
background; vocational background; and, transferable skills
possessed by claimant. Mr. Johnson believed that claimant
could return to work as a teacher's aide, account clerk,
appointment clerk or order clerk. It was his opinion that
claimant would be able to return only to work classified as
unskilled and sedentary. (Jt. Ex. 7).
Susan White, a vocational consultant, also provided a
Page 6
report detailing claimant's employability. She was able to
meet with claimant on one occasion, and reviewed numerous
medical records and reports which outlined claimant's
condition, treatment, diagnosis and prognosis. Ms. White
reviewed claimant's family/social background, educational
level, vocational experience and transferable skills. She
determined that claimant was employable in many areas of the
clerical field, including positions as a check audit clerk,
document preparation for microfilm, a C.O.D. clerk,
telephone surveyor, film rental clerk and teacher's aide.
While the report delineates the number of these positions
found within Iowa and nationally, the report does not detail
how many positions are actually available for workers
looking for jobs. The report offers that claimant has
looked in the newspaper for jobs, but has not signed up with
Job Service. Claimant does not have a resume, but she had
called several employers about possible positions. Claimant
was unable to remember the employers' names. Ms. White's
report is dated April 22, 1993. (Jt. Ex. 8).
Both experts testified at the hearing, and their
opinions did not change from those expressed in each of
their reports.
Several medical bills have not been paid. (Cl. Ex.
9-11).
ANALYSIS AND CONCLUSIONS OF LAW
The parties were able to stipulate that claimant has
sustained work-related injuries on March 18, March 29 and
April 8, 1991.
The first issue, then is whether the injuries caused a
permanent disability, and, in the event she has sustained a
permanent disability, is the disability to the right upper
extremity or to the body as a whole.
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. of App. P. 14(f).
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Page 7
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
Claimant argues several theories, including that
claimant has sustained a body as a whole injury, and thereby
the undersigned should employ Iowa Code section 85.34 (2)(u)
and 85.34 (3); or, claimant has sustained a scheduled member
injury and is permanently and totally disabled; or, that
claimant has sustained an occupational disease.
Defendants argue that claimant's physical condition is
based on a predisposition to this type of syndrome. They
interpret the medical reports, particularly those of Dr.
Misol's, as concluding that claimant's condition is peculiar
to claimant, and that whenever she performs repetitive work
of any type, she will experience a manifestation of pain and
discomfort. They continue their argument be stating that
because claimant is predisposed to the condition, she did
not actually have an injury at work, but rather a
manifestation of underlying disease processes. This is an
interesting argument considering the defendants did
stipulate that claimant sustained work injuries on each of
the three injury dates alleged by claimant.
Claimant's last argument is disposed of easily. It has
been determined that carpal tunnel syndrome is not an
occupational disease under Iowa Code section 85A. See,
Noble vs. Lamoni Products, (App. Decn. No. 851309).
The following analyses addresses the remaining
arguments.
Dr. Misol has been claimant's treating physician for
the right upper extremity problem. While he was unable to
assign a percentage of disability due to the unavailability
of an appropriate table in the AMA Guides, he was of the
opinion that claimant should avoid any type of employment
that would require her to perform repetitive grasping and
grabbing motions with her right hand, and she is not to lift
anything weighing more than five pounds. These are
permanent restrictions.
And, while claimant may be predisposed to this
condition depending on the type of work she performs, the
facts indicate that she was able to successfully perform her
job duties for more than two years before she complained of
Page 8
pain and numbness in her right wrist.
The second component of claimant's condition stems from
her mental status. This surely is to be the more difficult
analysis.
In the past, claimant has received treatment and
therapy for her depression. Notes dating as far back as
1978 and as recently as December of 1990, indicate that
claimant has been diagnosed with depression, and has had
accompanying impairments such as sleeplessness, tiredness,
anger and anxiety attacks. Both Drs. Gallagher and Cavallin
have indicated that claimant's physical condition has
aggravated her mental condition, making it that much harder
for claimant to function in a job, and perhaps in her daily
living. Neither held out much hope for claimant to return
to a normal work situation, yet neither suggested extensive
treatment, either.
Given the evidence, it is found that claimant has
suffered a permanent disability due to the work-related
incidents in March and April of 1991.
The next issue to address is whether claimant's work
injuries are confined only to the right upper extremity, or
if they produced an injury to the body as a whole.
There is no evidence that claimant sustained an injury
to the body as a whole. Her work did not cause the mental
impairment, but rather, the carpal tunnel syndrome, which
was caused by her work aggravated a pre-existing mental
condition. But there has been a recent, interesting change
in case law which now governs how the agency addresses
mental conditions that result from a scheduled member
injury.
Prior to June of 1993, it was assumed that when the
schedule was devised, the legislature took into
consideration the mental affects that were directly caused
by scheduled member losses. But the recent Iowa Supreme
Court case of Mortimer vs. Fruehauf Corp. (No. 92-1143) (on
remand) found differently, and allowed a claimant to recover
additional benefits due to the aggravation of a preexisting
mental condition caused by a scheduled member loss.
Claimant proved an industrial disability. Mr. Mortimer
injured his left foot while in the course of his employment.
He received benefits pursuant to the schedule, and later
filed a petition to review-reopen the case. Mr. Mortimer
sought additional benefits to compensate him for the
depression he had as a result of the foot surgery. While
Mortimer conceded that he had a preexisting psychological
condition, the court found that the condition had been
substantially aggravated by the work injury. As a result,
the court concluded that claimant had sustained an
industrial disability.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
Page 9
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by a
medical evaluator does not equate to industrial disability.
This is so as impairment and disability are not synonymous.
Degree of industrial disability can in fact be much
different than the degree of impairment because in the first
instance reference is to loss of earning capacity and in the
latter to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how each of
the factors are to be considered. There are no guidelines
which give, for example, age a weighted value of ten percent
of the total value, education a value of fifteen percent of
total, motivation - five percent; work experience - thirty
percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
At the time of the injury, claimant was 32 years old.
She obtained her GED in 1985.
Claimant's work history includes janitorial work and
data entry. She has sustained a serious injury to her
wrist, which severely limits her ability to lift, grasp or
grab. Claimant appears to have a very fragile personality,
yet she was able to function successfully as a data entry
operator for several years prior to her injury. She earned
approximately $7.71 per hour.
The injury to her right wrist has aggravated a
preexisting psychological condition. The combination of the
two conditions has forced claimant to terminate her work as
Page 10
a data entry operator. Claimant has not shown much
motivation to return to work, yet two vocational
rehabilitation experts have delineated several job
classifications that may provide work conducive to her
restrictions and limitations. The employer has not shown
much interest in bringing claimant back into the work
environment.
In the instant case, there is evidence that claimant is
employable. She has not displayed a great amount of
motivation to secure other suitable employment, and while
this lack of motivation may be a direct result of the
depression, it must be considered when evaluating claimant's
overall loss.
After considering all of the evidence, it is found that
claimant has sustained a 20 percent loss.
Finally, the parties were unable to agree upon
entitlement to medical benefits.
Iowa Code section 85.27 provides, in relevant part:
The employer, for all injuries compensable under this
chapter or chapter 85A, shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies therefor and shall allow reasonably
necessary transportation expense incurred for such services.
Given the foregoing points of law, and considering that
there is no evidence in the record indicating that the
employer or insurance carrier admitted liability for the
mental status of the claimant after the physical injuries
occurred, it is found that they are responsible for payment
of the psychiatric evaluations performed after the
work-related injuries occurred. Additionally, defendants
are ordered to pay bills from Drs. Misol and Kenney.
ORDER
THEREFORE IT IS ORDERED:
That defendants shall pay claimant permanent partial
disability benefits totaling one hundred (100) weeks at the
rate of one hundred ninety-four and 07/100 dollars ($194.07)
per week beginning September 3, 1991.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendants shall file an activity report upon
payment of this award as requested by this agency, pursuant
to rule 343 IAC 3.1.
Page 11
Signed and filed this ____ day of July, 1993.
______________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Steven C. Jayne
Attorney at Law
5835 Grand Ave., Suite 201
Des Moines, IA 50312
Mr. Joseph S. Cortese II
Attorney at Law
500 Liberty Bldg.
Des Moines, IA 50309
5-1803
Filed July 29, 1993
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DEBBIE ELLIS,
Claimant,
vs.
File Nos. 980097 989779
LIBERTY MUTUAL INSURANCE 993913
COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
LUMBERMAN'S MUTUAL CASUALTY
COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803
Claimant sustained an injury to her right wrist, which
aggravated a preexisting psychological condition.
Relying on a recent Iowa Supreme Court case, claimant
proved entitlement to industrial disability benefits, and
was awarded 100 weeks of permanent partial disability
benefits. See, Mortimer vs. Fruehauf.
Claimant's profile includes: 34 years of age; little
motivation to return to work; severe lifting restriction of
five pounds; limited grasping and grabbing ability; and,
fragile mental state.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
VICKI MITCHELL,
Claimant,
File No. 980259
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.
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration brought by Vicki
Mitchell, claimant, against IBP, Inc., employer and
self-insured defendant for benefits as the result of a
repetitive motion injury to claimant's upper extremities
which allegedly occurred on three different dates, January
30, 1991 (File No. 980259), April 2, 1991 (File No. 997201)
and June 6, 1991 (File No. 997202).
A hearing was held in Des Moines, Iowa, on August 16, 1993,
and the case was fully submitted at the close of the
hearing. Claimant was represented by Robert E. McKinney.
Defendant was represented by John M. Comer. The record
consists of the testimony of Vicki Mitchell, claimant,
Sandra Larson, medical case manager, claimant's exhibits 1
through 13 and defendant's exhibits A through J.
PRELIMINARY MATTER
At the time of the hearing claimant moved to amend the
petition to exclude the left shoulder as a body part which
was injured. The amendment to the petition was granted at
the time of the hearing.
STIPULATIONS
The parties stipulated to the following matters at the time
of the hearing.
That claimant sustained an injury on January 30, 1991, which
arose out of and in the course of employment with employer
and that it is the only injury involved in this case even
though three different petitions allege three different
injuries on three different dates and there are three
different files with three different claim numbers in this
case (Transcript pages 8-11).
That the injury of January 30, 1991, was the cause of both
temporary and permanent disability.
That claimant is entitled to and has been paid temporary
disability benefits for two separate periods of time
following her two separate surgeries. (1) From April 1,
1991 through April 16, 1991 following the right carpal
Page 2
tunnel surgery which took place on April 2, 1991 and (2)
from May 14, 1991 through May 28, 1991 following the left
carpal tunnel surgery which took place on May 14, 1991 (Ex.
13, pp. 1 & 2).
That claimant sustained an injury to both upper extremities
caused by a single accident and that she is entitled to
permanent disability benefits pursuant to Iowa Code section
85.34(2)(s).
That the proper rate of compensation in the event of an
award is $187.69 per week (Tran. p. 11).
That defendant agreed to pay for the independent medical
examination at the time of hearing and therefore the expense
of this evaluation is no longer a disputed issue in this
case (Tran. p. 11).
That defendant agreed to pay for the medical mileage
asserted by claimant at the time of hearing and that this
medical expense is no longer a disputed issue in this case
at this time (Tran. p. 12).
That the temporary disability benefits paid to claimant
prior to hearing were paid at the rate of $176.37 per week
whereas the proper rate of compensation should have been
$187.69 per week and the parties have agreed to work out
this difference between themselves for these temporary
disability benefits without a ruling from this deputy.
That in the event of an award of permanent disability
benefits that defendant is entitled to a credit for 20 weeks
of permanent partial disability benefits paid to claimant
prior to hearing at the rate of $176.37 per week in the
total amount of $3,527.40.
ISSUES
The parties submitted the following issues for determination
at the time of the hearing.
Whether claimant is entitled to additional temporary
disability benefits for the period from June 6, 1991 through
July 1, 1992 (Tran. pp. 7 & 18).
Whether claimant is entitled to permanent disability
benefits, and if so the extent of benefit to which she is
entitled (Tran. p. 13).
Whether defendants are entitled to assert, over the
objection of claimant, the affirmative defense that claimant
is not entitled to additional temporary disability benefits
after June 6, 1991 for the reason that employment was
available by employer that claimant was able to perform
pursuant to Iowa Code section 85.33(2) and (3) and therefore
claimant is barred from receiving additional temporary
disability benefits after June 6, 1991 (Tran. pp. 5, 13-15).
FINDINGS OF FACT
entitlement to additional temporary disability benefits
It is determined that claimant is entitled to additional
temporary disability healing period benefits for the period
from June 6, 1991 through July 1, 1992.
Claimant sustained a permanent disability in this case. The
treating plastic and reconstructive surgeon, Thomas S.
Parks, M.D., as well as an independent evaluating physician
Page 3
for claimant, David T. Berg, D.O., who is a doctor of
occupational medicine, both determined that claimant
sustained permanent impairment.
If an employee suffers permanent disability then the type of
temporary disability benefits are characterized as healing
period benefits. Iowa Code section 85.34(1).
An employee is entitled to healing period benefits from the
date of the injury until the employee (1) has returned to
work, (2) has obtained maximum medical improvement or (3) it
is determined that claimant is not medically capable of
returning to substantially similar employment, whichever
occurs first. Iowa Code section 85.34(1).
In this case none of the three foregoing conditions had been
met until Michael J. Makowsky, M.D., an occupational
medicine doctor, who provided the post surgical care to
claimant, determined that claimant had reached maximum
medical improvement on July 1, 1992 (Tran. p. 60). He also
assessed an impairment rating at that time.
Prior to that time, on January 20, 1992, Dr. Makowsky wrote,
"I have elected not to do a rating on her at this time. I
feel she will slowly improve over time. I plan to see her
back in about six months. Therefore, I have determined she
has not reached maximum medical healing." (Ex. 2, p. 10).
True to his word, Dr. Makowsky on July 1, 1992, wrote, "I
saw Ms. Mitchell in my office on July 1, 1992. At that
time, I evaluated her for an impairment rating. I have
determined she has reached maximum medical healing effective
today." (Ex. A, p. 1).
Claimant was released to light duty work on May 23, 1991,
however, nothing in the statute provides that a release to
return to light duty with work restrictions constitutes a
termination of healing period.
On May 23, 1991, after the second and left carpel tunnel
surgery, Dr. Parks wrote, "... I wanted to get her using her
hand somewhat. She said she understood. I released her to
light duty, less than five pounds, no vibration and no
knife." (Ex. B, p. 11; Ex. 1, p. 2). Dr. Parks explained
later that she was also restricted from repetitious motion
on that release to return to work on May 28, 1991 (Ex. B, p.
8; Ex. 1, p. 2).
A release to return to work light duty with significant
restrictions cannot be equated to a return to work as that
term is used in the statute or a return to substantially
similar employment as those words are used in the statute.
Iowa Code section 85.34(1).
It is clear from Dr. Parks' notes dated June 13, 1991, July
8, 1991, July 29, 1991, August 15, 1991, November 25, 1991
and December 20, 1991, that claimant had not attained
maximum medical improvement (Ex. B, pp. 1-16; Tran. pp.
56-58). On December 30, 1991, Dr. Parks stated that his job
as a surgeon was done. He referred claimant to Dr. Makowsky
for rehabilitation and after care with the possibility of
seeing a neurologist, a psychologist, and the eventual
determination of an impairment rating by Dr. Makowsky (Ex.
Page 4
B, p. 1).
On June 13, 1991, July 8, 1991, July 29, 1991, August 15,
1991, September 16, 1991 and November 25, 1991, Dr. Parks
was still trying to improve claimant's condition of
numbness, tingling, weakness and discomfort in both hands
and wrists by physical therapy and consultation with a
neurologist (Ex. B, pp. 2, 4-10, 15 & 16; Ex. C, pp. 1 & 2;
Ex. D, Ex. E, pp. 1 & 2; Ex. F, pp. 1-5).
Dr. Makowsky saw claimant on August 21, 1991, September 4,
1991, September 18, 1991, October 10, 1991, October 25,
1991, November 12, 1991, November 14, 1991, January 13,
1992, January 20, 1992 and on July 1, 1992 (Ex. 2, pp.
1-11). Dr. Makowsky prescribed physical therapy, work
hardening and additional EMG/NCV tests. It is clear from
Dr. Makowsky's notes that claimant had not achieved maximum
medical improvement in his opinion until he made that
determination on July 1, 1992 (Ex. 2, p. 11; Ex. A, p.1).
Dr. Makowsky prescribed extensive physical rehabilitation
and work hardening from several sources from July of 1991
through January 1992 (Tran. p. 61; Ex. 3, pp. 1-18; Ex. C,
p.2; Ex. 4, pp. 1-3; Ex. D, p. 2; Ex. 5, pp. 1-3; Ex. 6; Ex.
7, pp. 1 & 2).
Although employer did not pay weekly workers' compensation
benefits for this period of treatment by Dr. Makowsky,
nevertheless, employer did pay for all of this medical
treatment during this period of time (Tran. p. 19).
On August 8, 1991, Ronald S. Simms, M.D., a neurologist,
recommended occupational therapy and anti-inflammatory drug
treatment and a repeat EMG/NCV in six months (Ex. F, p. 5).
Employer's medical records show that claimant did return to
work light duty on May 28, 1991 for right-handed work only,
no lifting over five pounds, no knife work and no vibration
work (Ex. 9, p. 11; Tran. p. 37). Employer's medical
records show that claimant complained on June 5, 1991 of
soreness in her right wrist that began on May 31, 1991 to
June 1, 1991. The report also shows that claimant felt that
supervisors were asking her to handle pieces of meat on the
pick lean job that weighed over five pounds (Ex. 9, p. 12).
The report shows that claimant was returned to the pick lean
job and that if the restrictions were not being met she was
to report them to the supervisor or the nurse (Ex. 9, p.
12).
The job description for the pick lean job is as follows.
JOB DESCRIPTION
The light duty worker is responsible for removing pieces of
fat with lean from the conveyor belt on the loin line. This
worker stands at the conveyor belt, removing pieces of fat
with lean from the conveyor belt as it passes the
workstation. The pieces of fat with lean weigh a maximum of
4.5 pounds. The Light Duty employee works at his/her own
pace. This job can be performed with one or both hands. No
walking, climbing, or carrying is required for this job (Ex.
11, p. 1).
Claimant's counsel contended that claimant quit her job with
Page 5
employer because employer did not provide work that she was
able to perform. Counsel contended that she was asked to
perform work that made her hands and arms become worse and
that this is the reason she gave to employer for leaving
this employment when she quit (Tran. pp. 19 & 21).
Claimant herself testified that she reported that the reason
that she quit was because her hands were swollen, tingling
and hurt because of the work that the supervisors had asked
her to perform (Tran. pp. 73 & 74). Claimant acknowledged
that she was not fired (Tran. p. 66).
Claimant related that she did perform the pick lean job
after each of her two surgeries (Tran. pp. 33-37). Claimant
further related that most of the time she worked full-time,
eight hours per day while performing light duty work (Tran.
p. 36, 70 & 71).
Claimant appears to contend that the restrictions after each
surgery were the same but that is not borne out by the
medical evidence of record in this case (Tran. pp. 36, 37 &
42; Ex. B, pp. 11 & 12).
After the first surgery claimant was released to one-handed
light duty. No weight restrictions were given (Ex. B, p.
12). However, the job description of the pick lean job is
limited to weights of 4.5 pounds. Claimant testified that a
supervisor took her off this job and instructed her to sort
loins which were a lot heavier. She said the loins weighed
eight to ten pounds heavier. Claimant asserted that she was
required to do this on approximately two occasions prior to
the surgery on the other hand (Tran. pp. 27-41). After the
second surgery the restrictions specified light duty, less
than five pounds, no vibration, no knife and no repetitious
work (Ex. B, p. 11; Ex. B, p. 8). Thus, claimant was not
asked to violate any restrictions after the first surgery.
Claimant granted that the pick lean job fit her restrictions
after the second surgery except for the fact that it tended
to be repetitious (Tran. p. 37). She maintained that after
the second and left surgery when she returned to the pick
lean job that it caused swelling and tingling in the right
hand which she was suppose to be able to use (Tran. p. 43).
Claimant also alleged that one day a supervisor required her
to perform the butcher boy saw job using a band saw to saw
edges off of the back bone of the hog. She said this job
requires two hands but that she did it one-handed. She said
that these were large bones and weighed more than pick lean
meat. Claimant maintained that performing the butcher boy
saw job caused her right hand to swell and tingle (Tran. pp.
43-46). Claimant averred that she asked two of her
supervisors if they had checked with the nurse and that she
was told that the nurse had okayed these other jobs that she
was asked to perform (Tran. pp. 47, 69, 71 & 72). Claimant
further testified that at one point the nurse gave her the
impression that the supervisors had not obtained approval of
the nurse for claimant to perform jobs other than the pick
lean job (Tran. p. 74).
Claimant said that on another occasion a supervisor told her
Page 6
to rewrap a box of loins on the cryovac machine. She
contended that these loins weighed more than five pounds and
"It caused the same problem with the hands hurting and
swelling and tingling." (Tran. p. 48). Claimant alleged
that on another occasion she was assigned to make boxes
which required the use of both hands and that it was
repetitive work (Tran. p. 49). She told that on another
occasion she was instructed to grab back ribs out of a sink
and put them in a box and some of them weighed more than
five pounds. She maintained that she did this for several
days and that it caused swelling (Tran. pp. 49-51).
Claimant asserted that on another occasion she was required
to take hams out of a vat and run them through a metal
detector and this also caused a lot of swelling (Tran. p.
51).
Claimant summarized her post surgery jobs after the second
surgery as follows, "I was assigned to pick lean. I ran
some butcher boy saw. I made boxes. I sorted loins and did
back ribs." (Tran. p. 68).
Claimant explained why she quit working in the following
language.
Q. All right. Why did you leave IBP?
A. Mainly because I kept getting put on these jobs and
was told that it was okayed by the nurses' station. Come to
find out it wasn't okayed. When they didn't have anyone
else to put on these jobs, they put me on them.
Q. You feel that these jobs made your condition, your
injuries worse?
A. Oh, yes, it did.
Q. And you voiced those concerns to IBP; is that
correct?
A. To one of my supervisors in particular.
Q. Who was that?
A. Francis carpenter.
Q. What was Mr. Carpenter's response to all these
concerns that you voiced?
A. I didn't really get all that much response.
Q. When you voiced these concerns, did anyone at IBP
ever offer you a job that was less demanding physically?
A. Well, I was always put back on pick lean, but there
was always some supervisor like Mark or Francis or Rich that
would come and get me when they needed someone to do
something they didn't have anyone else for.
Q. And those other jobs were the ones that caused
problems?
A. Yes. It wasn't the pick lean that caused the
problems. It was these other ones (Tran. pp. 53 & 54).
Claimant testified that she cannot perform heavy lifting
anymore and that it is not uncommon for her to drop things
very easily (Tran. pp. 65 & 66).
Claimant reaffirmed that when she returned to work light
duty that she was working as many hours as the other
employees, which was about eight hours and possibly some
overtime (Tran. pp. 70 & 71). Claimant further stated that
Page 7
since leaving employer she has not been contacted by them to
come back to work (Tran. pp. 72 & 73).
Sandra Larson, medical case manager, testified that she was
the nurse manager from July of 1991 to April of 1992, which
is within the time period which is in dispute in this case.
Larson testified that she was the nurse at the time of
claimant's injury. She testified that the company medical
records did not show the jobs that claimant contends that
she was asked to perform other than the pick clean job.
Larson said she first learned about these jobs at the
hearing (Tran. pp. 75 & 78).
Larson mentioned that the medical record on the day that
claimant quit on June 5, 1991 shows only that claimant was
concerned whether or not "... the job pick lean was meeting
her restrictions, and her main concern was the 5-pound
weight limit. She felt that there were bigger pieces of
meat than that." (Tran. pp. 78 & 79).
Larson reaffirmed that there were no quotas on the pick lean
job. She said that anything that claimant missed went on to
become a different type of end product (Tran. p. 79).
Larson testified that she was familiar with other light duty
jobs which were available to claimant such as the cooker
temp monitor which is an observation job watching gauges and
which required no use of either hand. Another light duty
job that Larson was aware of was called knife room helper
which involves handing out knives and folding gloves (Tran.
pp. 79-81). However, Larson admitted that the records do
not show that any of these job were offered to claimant
(Tran. p. 81).
Larson verified that the pick lean job did not violate
claimant's restrictions because it was under the 5-pound
weight limit and it involved no knives, no vibration and no
repetitive motion (Tran. p. 81).
Larson admitted that employer would have had full knowledge
of the continued treatment of claimant by Dr. parks and Dr.
Makowsky after she left the employment of employer on June
6, 1991 (Tran. pp. 84 & 85).
The reasons why claimant is entitled to the additional
healing period benefits requested in this case are as
follows.
First, after claimant was taken off work for the surgeries
she was being actively treated by company authorized
physicians, Dr. Parks and Dr. Makowsky, who stated in their
medical records that they were endeavoring to improve
claimant's physical condition and to bring her to a point of
maximum medical improvement after June 6, 1991. Armstrong
Tire & Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 60, 65
(1981); Keifer v. Iowa Public Service Company, file no.
830461 (Arb. Decn., June 27, 1991) Keifer is a final
decision. Keener v. Harrett Corporation, file number 969789
(Arb. Decn., Feb. 9, 1994). Thus, she had not attained
maximum medical improvement.
Second, the assessment of a permanent impairment rating,
which has been determined to be an indicator of maximum
Page 8
medical healing, had not been made. No physician in this
case had assessed a permanent impairment rating until July
1, 1992. Thomas v. William Knudson & Sons, Inc., 349 N.W.2d
124, 126 (Ia. Ct. App. 1984); Lowe v. Iowa State
Penitentiary, file number 776977 (App. Decn., December 16,
1988); Schutt v. Riverside Book and Bible, file number
666100 (Review-Reopening Decn., January 22, 1990).
Third, a release to return to light work is not equated to
"returned to work" as those words are used in the statute
nor is it in this case equated to "employment substantially
similar" as those words are used in the statute. Iowa Code
section 85.34(1). Dr. Makowsky, the authorized treating
physician, said in January of 1992, that claimant had not
attained maximum medical improvement. Furthermore, he said
he wanted to see her back again in six months (Ex. 2, p.
10). Six months later on July 1, 1992, Dr. Makowsky
declared that claimant had attained maximum medical
improvement (Ex. 1, p. 1). Therefore, the event that
occurred first pursuant to Iowa Code section 85.34(1) is the
determination of maximum medical improvement by Dr. Makowsky
on July 1, 1992 and that is when healing period in this case
should terminate (Ex. 1, p. 1). As it happened, he also
assessed an impairment rating on this date.
Fourth, there is no duty on the part of a permanently
injured employee to return to light duty work or work within
her restrictions. Nor is there any obligation on the part
of an injured employee to seek out the employer and attempt
to return to light duty work or work with restrictions. If
either the employer or insurance carrier wish to mitigate
the amount of workers' compensation benefits which they
rightfully owe to an injured employee for the full statutory
period of temporary disability healing period recovery, then
the burden is on defendants to obtain a release to return to
work light duty or with restrictions and then seek out the
employee and make an offer of light duty work or work within
the doctor's restrictions. Morris v. Mike Brooks, Inc.,
file number 891286, filed July 12, 1991 and affirmed by the
industrial commissioner in a short form affirmance on August
27, 1992. This holding also is compatible with Iowa Code
section 85.33(2)(3)(4) with respect to temporary partial
disability. This statement of the law is further supported
by Helmle v. Beatrice Cheese, Inc., file no 918749 (Arb.
Decn., November 27, 1991); Ellsworth v. Krause Gentle Oil
Company, file number 989938 (Arb. Decn., August 10, 1993).
Appealed to Industrial Commissioner, settled September 10,
1993.
In this case claimant testified that she was required by her
supervisors to perform work which exceeded her restrictions.
The testimony of claimant is not controverted, contradicted,
rebutted or refuted by any other direct evidence. Neither
party subpoenaed the supervisors to find out what their
testimony would be on this point. Since the burden of
seeking out the employee and providing work that claimant
can perform is upon the employer, then the burden of proving
Page 9
that the employee was provided work that she could perform
is also upon the employer. Defendants did not prove that
claimant was provided work that she could perform within her
restrictions all of the time.
Fifth, a permanently injured employee is not obligated to
accept light duty work even when it is offered. The
industrial commissioner has determined that temporary
disability healing period is not terminated even when the
employer offers light duty work to the employee which the
employee declines. Webb v. Lovejoy Construction Co., II
Iowa Industrial Commissioner Report 430, 441 (Appeal Decn.
1981).
With respect to Iowa Code section 85.34(1) the employee is
privileged to remain off work until one of the three
conditions of that statute is met. This was the
determination in Webb. There is nothing in Iowa Code
section 85.34(1) or any case law decision that this deputy
is aware of that incorporates the provisions of Iowa Code
section 85.33(2)(3) or (4) into Iowa Code section 85.34(1).
Whether claimant can remain off work with respect to Iowa
Code section 85.33(2)(3)(4) will be considered in the next
section.
Sixth, although (1) the date of a release to return to work,
(2) the date of an impairment rating, (3) the date a doctor
states maximum healing has occurred and (4) the date a
doctor says healing has ended have all been used at
different times to determine the termination of healing
period, nevertheless, the determination of the termination
of healing period for any particular case requires a
practical application of the facts of each case and the
existing law. Sloan v. National Oats, file 900250 (App.
Decn., July 30, 1991); Lawyer and Higgs, Iowa Workers'
Compensation--Law and Practice, (2d ed.) section 13-3, pages
120 and 121; Collins v. K mart, file number 921081 (Arb.
Decn., March 11, 1993).
Wherefore, based upon the facts summarized above and the
legal authorities cited above it is determined that claimant
is entitled to additional temporary healing period
disability benefits for the period from June 6, 1991 the
date she left work because she was unable to perform it
through July 1, 1992 the date the treating physician
determined that she attained maximum medical healing and
also assessed a permanent impairment rating.
affirmative defense-iowa code section 85.33(2)(3)
"work consistent with the employee's disability"
First, it is determined that defendant is not entitled to
assert this defense in this case (Tran. p. 5, 14 & 15).
Defendants first mention of this defense referring to Iowa
Code section 85.33 was at the time of the hearing.
Claimant's counsel said that he was not prejudiced insofar
as he would have performed more discovery, however, he
objected to this defense being raised for the first time at
the time of hearing (Tran. p. 14).
The prehearing conference report signed by both parties on
Page 10
January 6, 1993, approximately eight months prior to this
hearing, did not specify that defendant was asserting this
or any other affirmative defense. Defendant did not amend
the answer at any time prior to hearing.
The hearing assignment order at paragraph 9, Hearing Issues,
states "Unless otherwise agreed in writing, the issues to be
heard are those identified in the prehearing conference
report." There is no such agreement in writing and
claimant's counsel objected to a determination of this issue
when it was proposed by defendant at the beginning of the
hearing.
Furthermore, asserting a new and different statutory defense
for the first time at the time of hearing is not consistent
with the Iowa Rules of Civil Procedure, the Iowa
Administrative Procedure Act, or the rules of the Industrial
Commissioner which are designed to enable counsel to be
prepared for hearing. Both parties should be apprised of
the issues to be decided in the case in advance of the
hearing so that both parties can be prepared to meet the
issues at the time of the hearing.
Second, assuming for purposes of argument that this defense
was not barred from determination, then defendants
introduced no evidence to show that Iowa Code section
85.33(2)(3)(4) were applicable because defendants did not
show that claimant was ever offered or paid any temporary
partial disability benefits. The undisputed evidence of
record is the testimony of claimant that she was working
full-time eight hours per day or more right along with other
employees. The evidence establishes that she was a
full-time employee. Defendants did not establish that
claimant was temporarily, partially disabled or that
claimant was ever compensated with temporary partial
disability benefits. Iowa Code section 85.33(3) and (2).
There is no evidence that claimant was ever paid 66 2/3
percent of the difference between her earnings at the time
of the injury and her earnings during a period of temporary
partial disability. Iowa Code section 85.33(4).
Third, moreover, further assuming that defendants were
entitled to assert this defense, then defendants have not
demonstrated that claimant was offered "other work
consistent with the employee's disability." Iowa Code
section 85.33(2). Claimant testified that the work which
she was required to perform exceeded her restrictions
several times on the jobs that she was asked to perform and
claimant's testimony was not controverted, contradicted, or
rebutted or refutted.
Wherefore, it is determined that if this affirmative defense
was entitled to determination in this decision that
defendants have failed to sustain the burden of proof by a
preponderance of the evidence that claimant was temporarily
partially disabled, or was paid temporary partial disability
benefits. The burden of proof is upon the proponent of an
issue. Norland v. Iowa Department of Job Service, 412
N.W.2d 409, 410 (Iowa 1987); Wonder Life v. Liddy, 207
Page 11
N.W.2d 27 (Iowa 1973).
The party who would suffer a loss if an issue were not
established has the burden of proving that issue. Iowa
Rules of Appellant Procedure, Rule 14 f(5); Williams v.
Quaker Oats Co., file number 1013375, (Arb. Decn., January
13, 1994).
The supreme court has determined that the burden of proof of
affirmative defenses is upon defendants. Everts v.
Jorgensen, 227, Iowa 818, 289 N.W. 11, (Iowa 1939).
The industrial commissioner follows this precedent and has
also determined that the burden of proof of affirmative
defenses is upon the employer. Schaapveld v. University of
Iowa, file number 814525, Appeal Decn., August 15, 1989.
Therefore, if this issue had been entitled to determination
in this decision it would have been determined that
defendants failed to sustain the burden of proof on this
issue.
Furthermore, there is nothing in Iowa Code section 85.33
that indicates that it has any application to healing period
benefits which are authorized in Iowa Code section 85.34(1).
Nor is this deputy aware of any case law connecting or
relating the requirements of Iowa Code section 85.33(2), (3)
or (4) to Iowa Code section 85.34(1), with respect to the
words of section 85.33(3) to the effect that "If the
employee refuses to accept the suitable work the employee
shall not be compensated with temporary partial, temporary
total, or healing period benefits during the period of the
refusal."
Iowa Code section 85.33 is a section of the code that is
entitled Temporary Total and Temporary Partial Disability.
Its application therefore must be limited to that scope
i.e., temporary disability. It should not be judicially
extended to healing period benefits which are an entirely
different section of the code that cover temporary
disability benefits when permanent disability is involved.
entitlement to permanent disability
It is determined that claimant has sustained a 6 percent
permanent impairment to the body as a whole caused by a
single accident pursuant to Iowa Code section 85.34(2)(s)
because this is an injury to both arms and that claimant is
entitled to 30 weeks of permanent partial disability
benefits.
Dr. Parks did not give an impairment rating but rather
delegated the task to Dr. Makowsky (Ex. 1, p. 3).
Dr. Makowsky rendered the following permanent impairment
rating and permanent restriction.
Based upon the American Medical Association's, "Guides to
the Evaluation of Permanent Impairment", third edition
revised, Ms. Mitchell has sustained a 3% impairment of the
right hand and wrist and a 3% impairment of the left hand
and wrist secondary to residual symptoms from her bilateral
carpal tunnel surgery. I recommend that she have the
following permanent restriction:
1. Avoid repetitive use of both hands and wrists (Ex. A,
Page 12
p. 1).
Converting and combining, 3 percent of the hand is
equivalent to 3 percent to the upper extremity and 3 percent
of the upper extremity converts to 2 percent of the whole
person. When 2 percent of the whole person is combined for
each arm it amounts to 4 percent of the whole person using
the AMA Guides, third edition revised, which was used by Dr.
Makowsky, Table 2 on page 16, Table 3 on page 16, and the
Combined Values Chart on page 254.
Dr. Berg performed an independent medical evaluation on
February 3, 1993, based upon the third edition of the AMA
Guides, and gave the following assessment.
In conclusion, I believe that Ms. Mitchell has sustained
a 7% impairment to the right upper extremity and a 3%
impairment to the left upper extremity based on loss of
strength and residual carpal tunnel symptoms. Referring to
the above-mentioned guidelines, on Page 20, Table 3, a 7%
impairment to the upper extremity is equal to a 4%
impairment to the whole person. A 3% impairment of the
upper extremity is equal to a 2% impairment of the whole
person. Using the Combined Values Chart on Page 246, this
results in a 5% impairment to the whole person (Ex. G, p.
5).
From the evidence submitted it appears to the deputy that
Dr. Berg gave claimant the most detailed examination and
personalized evaluation of her residual problems as well as
the best explanation of how he arrived at his rating. Dr.
Berg's rating also comports best with the intractable nature
of claimant's bilateral carpal tunnel injury, the long
period of treatment, the months of physical therapy and work
hardening and the remaining result which is somewhat short
of a complete recovery. Dr. Berg's evaluation also comports
best with claimant's own description of her problems, in
particular so far as her right arm is worse than the left.
There is one problem with Dr. Berg's evaluation. It may be
a typographical error, nevertheless, it needs to be
corrected. Using the Guides to the Evaluation of Permanent
Impairment, 3rd edition, as Dr. Berg did, when 4 percent of
the whole person is combined with 2 percent of the whole
person on the Combined Values Chart on page 246 the result
is a 6 percent impairment of the whole person rather than a
5 percent impairment. Therefore, it is determined that
claimant has sustained a 6 percent impairment of the whole
person in this case.
Dr. Berg also imposed permanent restrictions against
repetitive grasping, grasping with her hands, and repetitive
flexion and extension of her wrists (Ex. G, p. 5).
Wherefore, it is determined that claimant has sustained a 6
percent permanent impairment to the body as a whole as a
result of her bilateral carpel tunnel injury to both arms
caused by a single accident pursuant to Iowa Code section
85.34(2)(s) and that claimant is entitled to 30 weeks of
permanent partial disability benefits.
conclusions of law
Page 13
Wherefore, based upon the foregoing and following principles
of law, these conclusions of law are made:
That claimant has sustained the burden of proof by a
preponderance of the evidence that she is entitled to
additional healing period benefits for the period from June
6, 1991 through July 1, 1992. Bodish v. Fischer, Inc., 257
Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co.,
236 Iowa 296 18 N.W.2d 607 (1945); Iowa Code section
85.34(1).
That defendant did not sustain the burden of proof by a
preponderance of the evidence that they are entitled to
assert the defense of Iowa Code section 85.33 (2) and (3)
for the first time at the time of hearing based upon (1) the
agreement of the parties in the prehearing conference
report, (2) the directive of the industrial commissioner in
the hearing assignment order, and the (3) general principles
of preparing the case for hearing found in Iowa Rules of
Civil Procedure, the Iowa Administrative Procedure Act and
the Rules of the Industrial Commissioner.
That claimant has sustained the burden of proof by a
preponderance of the evidence that she has sustained a 6
percent permanent impairment to the whole person based upon
this bilateral carpal tunnel injury to both arms pursuant to
Iowa Code section 85.34(2)(s).
ORDER
THEREFORE, IT IS ORDERED:
That defendant pay to claimant fifty-six (56) weeks of
temporary disability healing period benefits for the period
from June 6, 1991 through July 1, 1992 at the stipulated
rate of one hundred eighty-seven and 69/100 dollars
($187.69) per week in the total amount of ten thousand five
hundred ten and 64/100 dollars ($10,510.64) commencing on
June 6, 1991.
That defendant pay to claimant thirty (30) weeks of
permanent partial disability benefits based upon a six
percent (6%) permanent impairment to the whole body at the
stipulated rate of one hundred eighty-seven and 69/100
dollars ($187.69) per week in the total amount of five
thousand six hundred thirty and 70/100 dollars ($5,630.70)
commencing on July 2, 1992.
That defendant is entitled to a credit for twenty (20) weeks
of permanent partial disability benefits paid to claimant
prior to hearing at the rate of one hundred seventy-six and
37/100 dollars ($176.37) in the total amount of three
thousand five hundred twenty-seven and 40/100 dollars
($3,527.40) as stipulated to by the parties.
That all of these benefits are to be paid in a lump sum.
That interest will accrue pursuant to Iowa Code section
85.30.
That the costs of this action, including the cost of the
attendance of the court reporter at hearing and the cost of
the transcript, are charged to defendants pursuant to rule
343 IAC 4.33 and Iowa Code section 86.19(1) and 86.40.
That defendant file claim activity reports as requested by
Page 14
this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of March, 1994.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Robert E. McKinney
Attorney at Law
480 Sixth Street
PO Box 209
Waukee, IA 50263
Mr. John Comer
Attorney at Law
PO Box 515
Dakota City, NE 68731
1401, 1402.40, 1802, 2901, 2902,
1802
Filed March 31, 1994
Walter R. McManus
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
VICKI MITCHELL,
Claimant,
File No. 980259
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.
___________________________________________________________
1401, 1402.40, 1802
Defendant admitted injury and paid claimant for two
short periods of temporary disability, once following a
right carpel tunnel surgery and again following a left
carpel tunnel surgery. Claimant was released to return to
work light duty with restrictions of five pounds, no knife
work, no vibration, no repetitive work.
After a few days claimant quit her job contending (1)
it caused swelling, pain, numbness and tingling and (2) the
supervisors asked her to perform work in violation of her
restrictions. Claimant's testimony was credible; it was not
controverted; and it was accepted as true.
Employer's nurse testified that they had other even
lighter duty jobs but she could not testify that any of them
were ever offered to claimant.
Claimant was awarded additional temporary disability
benefits for the period requested by claimant. This was a
little over a year because after surgery the treating
physician, who was authorized by defendant, determined that
claimant had not reached maximum medical improvement. Both
the surgeon, and the after care physician, stated that they
were trying to improve claimant's condition with
medications, physical therapy and work-hardening during this
period of time.
With respect to section 85.34(1) the employee is
privileged to remain off work until one of the three
conditions in the statute is met.
It was determined that healing period continues while
the physicians are endeavoring to achieve medical
improvement and claimant is showing some improvement.
Cites.
It was determined that a permanently injured employee
has no duty to seek out employer and arrange for light duty
Page 2
work. If an employer wishes to mitigate the statutory
period of healing to which an injured employee is entitled,
then the burden is on employer to provide light duty work
and persuade the employee to accept it. Cites.
It was determined that a release to return to light
duty work with restrictions by a physician cannot be equated
to a return to work or a return to substantially similar
employment as those words are used in section 85.34(1), even
though the employer provides work within those restrictions.
It was determined that healing period terminated when
claimant attained maximum medical improvement and a
permanent impairment rating was assessed. Cites.
Several other factors that have been used to terminate
healing period were cited but it was determined that the
termination of healing period requires a practical
application of the facts of each case and the existing law.
Cites.
There is no language in section 85.34(1) that
incorporates any of the provisions of section 85.33(2) or
(3) permitting an employer to terminate healing period
benefits.
2901, 2902, 1802
It was determined that employer could not assert for
the first time at the time of hearing that Iowa Code
sections 85.33(2) and (3) were a defense for the termination
of healing period benefits because of the employees refusal
to accept suitable work. This defense was not asserted in
the answer to the petition. It was not asserted in the
prehearing conference report. It is inconsistent of the
intent and purpose of the Iowa Rules of Civil Procedure, the
Iowa Administrative Procedure Act and the Rules of the
Industrial Commissioner, which allow parties to adequately
prepare for a hearing, to raise a new issue for the first
time at the time of hearing.
As dicta, however, and to address all of the possible
issues in the case the following determinations were made.
With respect to Iowa Code sections 85.33(2) and (3) it
was determined that defendant introduced no evidence that
claimant was ever offered or was paid any temporary partial
disability benefits. There was no evidence she was ever
paid sixty-six and two-thirds of the difference between
regular and temporary pay. On the contrary, the evidence
established that claimant was a full-time employee during
her short return to work.
It was determined that employer did not offer claimant
"other work consistent with the employee's disability." as
those words are used in Iowa Code sections 85.33(2) and (3)
because some of the work offered exceeded her restrictions.
Furthermore, it was determined that section 85.33 is a
temporary total and temporary partial disability statute for
Page 3
injuries that are temporary in nature. This section should
not be extended to section 85.34(1) which is healing period
benefits for injuries which are permanent in nature.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
BILLIE JOE WETHERELL,
Claimant,
vs.
File No. 980265
HOPKINS CONTRACTING, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
CNA INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Billie Joe Wetherell as
a result of alleged injuries to his shoulder and cervical spine which
occurred on February 1, 1991. The defendants denied liability and
multiple issues are presented for determination.
This case was heard and fully submitted at Sioux City, Iowa on March 6,
1995. The record in the proceeding consists of claimant exhibits A
through O, defendants exhibits A through F and testimony from Billy Joe
Wetherell, Linda Hopkins, Steve Hopkins and Gary Moberg. Claimant was
represented by Kay E. Dull, Attorney at Law. Defendants were
represented by Michael P. Jacobs, Attorney at Law.
ISSUES
The issues presented for determination are as follows:
1. Whether claimant sustained an injury on February 1, 1991, which
arose out of and in the course of employment;
2. Whether the injury is a cause of permanent disability the nature
and extent thereof;
3. Whether claimant is entitled to Iowa Code section 85.27 medical
benefits their authorization, fairness and reasonableness and causal
connection to the work injury; and
4. Whether defendants are entitled to credits against any award for
payment of weekly benefits and the number of weeks for which a credit
is to be had.
FINDINGS OF FACT
Having heard the testimony of the witnesses and having considered all
of the evidence in the record, the deputy industrial commissioner
finds:
Claimant, Billie Joe Wetherell began work for the employer as a laborer
on April 6, 1989. In early December of 1990 claimant was working in
South Sioux City, Nebraska, when he slipped and fell into a ditch.
Claimant did not immediately seek medical treatment as a result of the
slip and fall nor did he complain of pain in his cervical spine or
shoulder immediately after that incident. Later in early 1991 claimant
was working at Moville, Iowa, installing the water heater which weighed
approximately 165 pounds. Claimant provided a medical history that the
work performed while installing a water heater resulted in pain in his
cervical spine and shoulder. Claimant also gave a history that the
water heater weighed 800 pounds when in fact it weighed approximately
165 pounds.
Claimant testified at hearing that on or about February 1, 1991, he had
in fact slipped and fell in a ditch while performing work for the
employer in South Sioux City, Nebraska. Claimant also testified that
on or about the same day he then went to Moville to install the water
heater and thereby aggravated the injury. Based upon a review of the
evidence it appears that claimant was in error with respect to the day
that he fell in South Sioux City, Nebraska and with respect to the day
that he assisted in the water heater installation at Moville, Iowa.
Claimant first sought medical treatment for the cervical spine and
shoulder complaints on February 12, 1991 (Defendant Exhibit A).
Claimant reported that he had right shoulder pain since the prior week.
He also reported that he had picked up a child several days prior to
onset and that was the only significant event which had occurred.
On March 8, 1991, claimant gave a medical history that he had no
specific injury or pressure and that the pain had begun one month
earlier (Def. Ex. B).
On April 15, 1991, a medical history was taken which indicated that
claimant fell backwards into a ditch in late December of 1990 with some
pain in the cervical spine which had resolved. The medical history
also indicates that claimant was straining in early February with a
gradual onset of right arm and right shoulder pain (Claimant Exhibit
H).
It is found that medical records created close in time to the alleged
incident must be given greater weight. Those records were made at a
time when the events were still fresh in the mind of all parties
involved. Furthermore, the documentation was created when litigation
had not yet commenced and there was no financial motivation on the part
of the doctors or claimant. Therefore, the older medical records will
be given greater consideration where a conflict exists in medical
histories given.
REASONING AND CONCLUSIONS OF LAW
The first issue is whether claimant sustained an injury on February 1,
1991, which arose out of and in the course of employment with the
employer.
A personal injury contemplated by the workers' compensation law means
an injury, the impairment of health or a disease resulting from an
injury which comes about, not through the natural building up and
tearing down of the human body, but because of trauma. The injury must
be something which acts extraneously to the natural processes of nature
and thereby impairs the health, interrupts or otherwise destroys or
damages a part or all of the body. Although many injuries have a
traumatic onset, there is no requirement for a special incident or an
unusual occurrence. Injuries which result from cumulative trauma are
compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa
1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251
(1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v.
Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934). An
occupational disease covered by chapter 85A is specifically excluded
from the definition of personal injury. Iowa Code section 85.61(5);
Iowa Code section 85A.8.
The claimant has the burden of proving by a preponderance of the
evidence that the alleged injury actually occurred and that it arose
out of and in the course of employment. McDowell v. Town of
Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co.,
261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer
to the cause or source of the injury. The words "in the course of"
refer to the time, place and circumstances of the injury. Sheerin v.
Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188
N.W.2d 283 (Iowa 1971).
It is held that claimant has failed to establish by a preponderance of
the evidence that he sustained an injury on or about February 1, 1991,
which arose out of and in the course of employment with the employer.
Claimant has the burden of establishing credible evidence to support a
work-related injury. In this situation multiple inconsistencies
existed within the record. First, it was clear that claimant could not
have experienced an injury on February 1, or within several weeks of
February 1, 1991 in South Sioux, Nebraska. The medical records
document a slip and fall in December of 1990 as opposed to February of
1991. Furthermore, it is clear that claimant was not lifting an 800
pound water heater. Instead, claimant had the opportunity to install a
water heater which weighed about 165 pounds. Such inconsistencies
cause less weight to be given claimant's testimony. Finally, the
medical records created early in claimant's medical treatment indicate
an onset not connected to any traumatic event. It was not until after
claimant had treated for two months that he related the onset of
symptoms to work-related events. Such inconsistencies severely detract
from the weight given evidence supporting a work-related injury.
Therefore, it must be concluded that claimant has failed to bring forth
sufficient credible evidence to establish by a preponderance of the
evidence that he sustained an injury on or about February 1, 1991,
which arose out of and in the course of employment with Hopkins
Contracting, Inc.
Since this issue is dispositive of the entire case further discussion
is not warranted.
ORDER
IT IS, THEREFORE, ORDERED:
Claimant shall take nothing from file number 980265.
It is further ordered that claimant's petition in file number 980265 is
hereby dismissed.
It is further ordered that each party shall bear their own costs
incurred with the prosecution of this action.
Signed and filed this ____ day of March, 1995.
______________________________
MARLON D. MORMANN
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Ms. Kay E. Dull
Attorney at Law
509 Ninth Street
PO Box 3107
Sioux City, IA 51102
Mr. Michael P. Jacobs
Attorney at Law
300 Toy National Bank Bldg.
Sioux City, IA 51101
5-1402.30
Filed March 10, 1995
Marlon D. Mormann
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
BILLIE JOE WETHERELL,
Claimant,
vs.
File No. 980265
HOPKINS CONTRACTING, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
CNA INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1402.30
Claimant failed to establish by a preponderance of the evidence that he
sustained an injury on February 1, 1991, arising out of and in the
course of employment. Inconsistent medical histories along with
inconsistent statements made by claimant detracted from the weight
given claimant's testimony as to a work injury. It was held that
claimant failed to establish by a preponderance of the evidence a work
injury due to the numerous inconsistencies.