BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
DONALD BAKER,
Claimant,
vs.
File No. 980571
HUMBOLDT SAUSAGE CO.,
A P P E A L
Employer,
D E C I S I O N
and
HOME INSURANCE 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
November 21, 1994 is affirmed and is adopted as the final agency
action in this case with the following additional analysis:
Defendants do not seek a credit under Iowa Code section
85.38(2) for short term disability benefits paid, but do seek
such a credit for long term disability benefits paid. Defendants
are entitled under 85.38(2) to a credit for the "amount" paid.
That section does not speak in terms of weeks. Defendants are
entitled to a credit against the award for the amount of long
term disability benefits paid to claimant, after taxes, on a
dollar for dollar basis. See Lytle v. Hormel Corporation, (App.
June 12, 1985).
Defendants shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of May, 1995.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert E. McKinney
Attorney at Law
480 Sixth Street
P O Box 209
Waukee, Iowa 50263-0209
Ms. Judith Ann Higgs
Attorney at Law
P.O. Box 3086
Sioux City, Iowa 51102-3086
1701
Filed May 31, 1995
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DONALD BAKER,
Claimant,
vs.
File No. 980571
HUMBOLDT SAUSAGE CO.,
A P P E A L
Employer,
D E C I S I O N
and
HOME INSURANCE COMPANY,
Insurance Carrier,
Defendants.
____________________________________________________________
1701
Credit under 85.38(2) granted as a dollar for dollar basis,
not number of weeks.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DONALD BAKER,
Claimant,
vs.
File No. 980571
HUMBOLDT SAUSAGE CO.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
HOME INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Donald Baker,
claimant, against Humboldt Sausage Company, employer, hereinafter
referred to as Humboldt, and Home Insurance Company, insurance
carrier, defendants, for workers' compensation benefits as a
result of an alleged injury on December 10, 1990. On November 1,
1994 a hearing was held on claimant's petition and the matter was
considered fully submitted at the close of this hearing.
The parties have submitted a hearing report of contested
issues and stipulations which was approved and accepted as a part
of the record of this case at the time of hearing. The oral
testimony and written exhibits received during the hearing are
set forth in the hearing transcript.
According to the hearing report, the parties have stipulated
to the following matters:
1. An employee-employer relationship existed between
claimant and Humboldt at the time of the alleged injury.
2. If defendants are liable for the alleged injury,
claimant is entitled to temporary total or healing period
benefits from December 11, 1990 through April 23, 1991.
3. If the alleged injury is found to have caused permanent
disability, the type of disability is an industrial disability to
the body as a whole.
4. If permanent partial disability benefits are awarded,
they shall begin as of April 24, 1991.
5. At the time of injury claimant's gross rate of weekly
compensation was $365.00; he was married; and, he was entitled to
two exemptions. Therefore, claimant's weekly rate of
compensation is $232.60 according to the Industrial
Commissioner's published rate booklet for this injury.
6. The medical expenses requested by claimant at the
hearing are fair and reasonable and causally connected to the
medical condition upon which the claim herein is based but that
the issue of their causal connection to any work injury remains
an issue to be decided herein.
ISSUES
The parties submitted the following issues for determination
in this proceeding:
I. Whether claimant received an injury arising out of and
in the course of employment;
II. The extent of claimant's entitlement to disability
benefits, and
III. The extent of claimant's entitlement to medical
benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as follows:
A credibility finding is necessary to this decision as
defendants placed claimant's credibility at issue during cross-
examination as to the nature and extent of the injury and
disability. From his demeanor while testifying, claimant is
found credible.
Claimant worked for Humboldt from June 1978 until the
alleged work injury herein in various manual labor jobs involved
in the processing of meat products. Claimant testified that all
of the jobs he held at Humboldt were physically demanding. At
the time of the alleged injury, claimant was working in the dry
room hanging meat. This job involved a considerable amount of
repetitive bending over, lifting, and twisting while handing
sticks of meat, weighing 40-60 pounds each, to other employees
both below and at shoulder height. It is found that this job
placed stress on the neck from head movement in the form of
repetitive stretching and turning. Claimant left his employment
at Humboldt at the time of the alleged work injury and never
returned upon the recommendations of Thomas Wilson, M.D., a
treating physician.
On or about December 10, 1990, after handing meat, claimant
and his fellow employees in the dry room crawled to an adjacent
work area and after standing up, claimant became faint, dizzy and
weak and began to perspire excessively. His neck became stiff
and he developed nausea. He also stated that his left arm and
foot began to ache. Claimant stated to physicians that he had
suffered from severe headaches for three weeks prior to this
incident. Claimant stated that due to these complaints he ended
his work and immediately sought medical treatment at a local
hospital emergency room to find out what was going on. Claimant
was then hospitalized for testing. After his discharge, claimant
had subsequent episodes and today complains of continued symptoms
of dizziness after quick head movements, headaches, arm and
shoulder aching, and numbness in the buttocks and left foot. As
his job involved working in high areas and repetitive stretching
of the neck, upon the recommendations of Dr. Wilson, he has not
returned to his former job at Humboldt.
This was not the first time claimant experienced similar
complaints of nearly fainting and excessive sweating in
conjunction with headaches. Claimant suffered near faintness,
weakness, left shoulder discomfort in July 1983 and he sought
medical treatment. At that time, physicians could offer no cause
for these complaints and thought it may be due to excessive sugar
levels in claimant's body. Three months later he was diagnosed
as suffering from cephalic with a reported history of headaches.
In 1985 he suffered from a two week bout with headaches and in
1989 he complained of a sudden onset of a migraine type of
headache. At hearing, claimant testified that his past headaches
differed greatly from those he has experienced in the three week
period before the December 10, 1990 incident at work, not only in
intensity, but in the location of the pain in his head.
The fighting issue in this case is whether or not claimant
suffered any work injury on December 10, 1990. Claimant relies
upon the opinions of Dr. Wilson, a board certified neurologist,
who examined claimant initially during the December 1990
hospitalization and again in January, 1991. According to Dr.
Wilson, claimant suffered a vertebral artery dissection or stroke
which was evidenced by his headaches during the three week period
prior to December 10, 1990. The doctor states that his
dissection or breakdown of the artery wall ultimately led to a
blockage and the symptoms complained of by claimant. He also
opines that this condition was caused by claimant's strenuous
lifting and use of his neck while working in his job at Humboldt.
The defense relies upon the views of J. W. Freeman, M.D., a
neurosurgeon. According to Dr. Freeman, his views were shared
with his associate K. Gene Koob, M.D., another neurosurgeon, who
agrees with him. The defense has also sought causal connection
opinions from Paul From, M.D., an internist, and another board
certified neurologist, Joel Cotton, M.D. Both Drs. From and
Cotton were retained by defendants solely for litigation
purposes. Claimant was initially seen by Dr. Freeman after the
first hospitalization by his family physician, Steve Carlson,
D.O. Only the depositions of Drs. Wilson, From and Cotton were
submitted into evidence.
Dr. Freeman states in written reports that he believes that
claimant may have suffered migraine headaches on December 10,
1990 and the episodes, rather than artery dissection, especially
in light of a history of prior headaches. Drs. From and Cotton
also disagree with the views of Dr. Wilson.
At first glance, one would expect that the weight of
evidence is against claimant as only one physician out of four
support the claim of injury. However, decisions of this deputy
are not made on the basis of sheer volume of opinion but their
quality. The greater weight of the credible evidence in this
case lies in favor of claimant's claim.
First, the views of Dr. Wilson are unequivocal and strongly
supportive of claimant's claims herein. His views are based on
multiple, very thorough examinations upon his neurological
findings from personal observation during these exams. Given his
length of experience and superb qualifications, his views cannot
be taken lightly. On the other hand, each and every opinion
expressed by those physicians relied upon by the defense are
significantly flawed and must be rejected in each case.
As explained in his deposition, crucial to Dr. Wilson's
opinions, was a subsequent review in March 1991 of angiographic
studies performed during the December 1990 hospitalization by
David E. Tubman, M.D., and which were also viewed by Dr. Wilson
personally which demonstrated radiographic evidence consistent
with Dr. Wilson's diagnosis. Despite several reports detailing
various diagnostic studies during the December 1990
hospitalization by Dr. Freeman, no mention is made by him of any
review of angiographic studies. Consequently, this deputy
commissioner is uncertain whether Dr. Freeman or his associate
had ever seen these studies. Also, there is no question that
neither Dr. Freeman or his associate had the benefit of the
subsequent reviews by Dr. Wilson and Dr. Tubman in March 1991.
Finally, although claimant at hearing admitted to prior
headaches, these differed from headaches he experienced prior to
and after December 1990. Also, Dr. Wilson was aware of these
past headaches, his current headaches and other events and did
not retreat from his diagnosis. As Dr. Freeman did not have the
benefit of subsequent examinations; may not have seen the
angiographic studies; and, definitely did not have the benefit of
subsequent reviews of those studies, his views cannot be given
greater weight over the other physicians rendering opinions in
this case.
Turning to the views of Drs. From and Cotton, it is clear
that they were defense retained one time evaluators whose
opinions at onset cannot be given the same weight as a treating
physician. However, apart from that aspect, their views are
rejected on the basis of the quality of their opinions.
Dr. From is not a neurologist but an internist. As clearly
pointed out by Dr. Cotton, the diagnosis of vertebral arterial
dissection is primarily a call for neurologists as it involves
neurological testing. Although Dr. From is certainly a well
qualified physician and internist, his views cannot stand up to
those of a neurologist on diagnosing these types of conditions.
Therefore, we are down to a judgment call between two board
certified neurologists, Drs. Wilson and Cotton. Again, Dr.
Cotton is only a one-time evaluator and did not have the benefits
of multiple examinations of claimant's symptoms. However, both
had equal assess to the results of neurological testing,
including the March review of the angiographic studies and both
based their opinions on more recent exams. However, after a
careful reading of both depositions, Dr. Wilson's views must be
given greater weight over those of Dr. Cotton for a variety of
reasons.
First of all, Dr. Cotton appeared quite combative with
claimant's counsel when his views were challenged. As a result
he never fully explained why he rejected the findings in the
review of angiographic studies. He also makes mention on more
than one occasion of a supposed initial view of Dr. Wilson during
the December 1990 hospitalization that claimant had no
dissection. However, such an opinion does not appear of record
and is not mentioned in any of the hospital records or those of
Dr. Freeman. Finally, and most importantly, Dr. Cotton rejects
the proposition that dissection can be caused by strenuous
activity at work as opposed to blunt trauma but only on the basis
that he had not seen this in his practice. In other words, if he
has not seen it, it does not exist. Such a narrow viewpoint must
be rejected. Even Dr. From referred to several credible research
articles on such a possible causal connection.
Therefore, the views of Dr. Wilson are found to be the most
credible and sufficient to support a finding of an injury on
December 10, 1990 which arose out of and in the course of
claimant's employment.
Given the finding of a work injury and the stipulations of
the parties with reference to temporary weekly and medical
benefits, no further findings are necessary on such issues.
With reference to claimant's industrial disability, given
the views of Dr. Wilson in his April 21, 1992 letter report,
joint exhibit 11, it is found that the work injury of December
10, 1990 is a cause of a significant permanent impairment to the
body as a whole. The exact percentage is unimportant in this
industrial case. More importantly, claimant is permanently
restricted by his primary treating physician, Dr. Wilson, from
returning to his dry room job at Humboldt. In addition, claimant
is restricted from any other job involving repetitive and
strenuous neck movements. Although claimant had prior carpal
tunnel syndrome and a rotator cuff condition, claimant had no
prior permanent impairment according to the medical records
submitted into evidence.
Although claimant cannot return to his work in the dry job,
the record is a little hazy on his abilities to perform other
jobs at Humboldt. At hearing he expressed no prior problems with
many of his past Humboldt jobs. There was some evidence to
suggest claimant considered returning to other jobs but did not
do so. On the other hand, Humboldt never actively recruited
claimant for suitable employment subsequent to the injury.
Prior to his Humboldt employment, claimant was a auto body
and frame repair person which required lifting tires. He also
was a motorcycle mechanic which require lifting. Obviously,
these jobs require strenuous neck movement. However, for a
considerable amount of time he was a service manager at the
motorcycle shop.
Claimant is 44 years of age. Claimant has a high school
education. A vocational assessment was procurred by defendants
which revealed numerous transferable skills and the ability to
return to the work force but active vocational rehabilitation was
not pursued. Claimant has not actively sought replacement
employment but is currently in the process of retraining to be a
radiologist. Claimant is expected to graduate and obtain an
Associate of Science Degree next summer. It is found that it is
likely he will complete this program as currently he is not
experiencing any difficulties with attendance or the program's
intellectual demands. Claimant today has a 3.0 average grade
level. Claimant expects to find employment at least in the $20-
24,000 range with potential for higher salaries upon a
specialization.
From examination of all of the factors of industrial
disability, it is found that the work injury of December 10, 1990
was a cause of a 20 percent loss of earning capacity.
CONCLUSIONS OF LAW
I. Claimant has the burden of proving by a preponderance
of the evidence that claimant received an injury arising out of
and in the course of employment. The words "out of" refer to the
cause or source of the injury. The words "in the course of"
refer to the time and place and circumstances of the injury. See
generally, Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298
(Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68
N.W.2d 63 (1955). An employer takes an employee subject to any
active or dormant health impairments. A work connected injury
which more than slightly aggravates the condition is considered
to be a personal injury. Ziegler v. U.S. Gypsum, 252 Iowa 613,
620, 106 N.W.2d 591 (1961), and cases cited therein.
It is not necessary that claimant prove his disability
results from a sudden unexpected traumatic event. It is
sufficient to show that the disability developed gradually or
progressively from work activity over a period of time. McKeever
Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). The
McKeever court also held that the date of injury in gradual
injury cases is the time when pain prevents the employee from
continuing to work. In McKeever the injury date coincided with
the time claimant was finally compelled to give up his job.
The question of causal connection is essentially within the
domain of expert medical opinion. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of
experts need not be couched in definite, positive or unequivocal
language and the expert opinion may be accepted or rejected, in
whole or in part, by the trier of fact. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to
such an opinion is for the finder of fact to determine from the
completeness of the premise given the expert or other surrounding
circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d
867 (1965).
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal connection,
such testimony may be coupled with non-expert testimony to show
causation and be sufficient to sustain an award. Giere v. Aase
Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966)
Such evidence does not, however, compel an award as a matter of
law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (1974).
To establish compensability, the injury need only be a
significant factor, not be the only factor causing the claimed
disability. Blacksmith v. All-American, Inc., 290 N.W.2d 348,
354 (1980). In the case of a preexisting condition, an employee
is not entitled to recover for the results of a preexisting
injury or disease but can recover for an aggravation thereof
which resulted in the disability found to exist. Olson v.
Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).
In the case sub judice, a work injury was found on December
10, 1990 based primarily upon an analysis of controverted medical
opinion. Although claimant experienced pain for three weeks
prior to this time, the actual injury did not occur until the
onset of more severe symptoms preventing further work.
II. As the claimant has shown that the work injury was a
cause of a permanent physical impairment or limitation upon
activity involving the body as a whole, the degree of permanent
disability must be measured pursuant to Iowa Code section
85.34(2)(u). However, unlike scheduled member disabilities, the
degree of disability under this provision is not measured solely
by the extent of a functional impairment or loss of use of a body
member. A disability to the body as a whole or an "industrial
disability" is a loss of earning capacity resulting from the work
injury. Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258
N.W. 899 (1935). A physical impairment or restriction on work
activity may or may not result in such a loss of earning
capacity. Examination of several factors determines the extent
to which a work injury and a resulting medical condition caused
an industrial disability. These factors 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. See Peterson v. Truck Haven Cafe, Inc.,
Vol. 1, No. 3 Iowa Industrial Commissioner Decisions 654, 658
(Appeal Decision, February 28, 1985).
In the case sub judice, it was found that claimant suffered
a 20 percent loss of his earning capacity as a result of the work
injury. Such a finding entitles claimant to 100 weeks of
permanent partial disability benefits as a matter of law under
Iowa Code section 85.34(2)(u) which is 20 percent of 500 weeks,
the maximum allowable number of weeks for an injury to the body
as a whole in that subsection.
As a compensable work injury was found to have occurred, an
award of healing period benefits will be made pursuant to the
parties' stipulations in the hearing report.
III. Pursuant to Iowa Code section 85.27, claimant is
entitled to payment of reasonable medical expenses incurred for
treatment of a work injury. As a work injury was found, the
medical benefits listed in the hearing report will be awarded
pursuant to the parties' stipulations.
ORDER
1. Defendants shall pay to claimant one hundred (100) weeks
of permanent partial disability benefits at a rate of two hundred
thirty-two and 60/l00 dollars ($232.60) per week from April 24,
1991.
2. Defendants shall pay to claimant healing period benefits
from December 11, 1990 through April 23, 1991 at the rate of two
hundred thirty-two and 60/l00 dollars ($232.60) per week.
3. Defendants shall pay the medical expenses listed in the
prehearing report.
4. Defendants shall pay accrued weekly benefits in a lump
sum and shall receive credit against this award for all benefits
previously paid.
5. Defendants shall receive credit for previous payments of
benefits under the non-occupational group insurance plan under
Iowa Code section 85.38(2), less any tax deductions, if any, from
those payments.
6. Defendants shall pay interest on weekly benefits awarded
herein as set forth in Iowa Code section 85.30.
7. Defendants shall pay the costs of this action pursuant
to rule 343 IAC 4.33, including reimbursement to claimant for any
filing fee paid in this matter.
8. Defendants shall file activity reports on the payment of
this award as requested by this agency pursuant to rule 343 IAC
3.1.
Signed and filed this ____ day of November, 1994.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert E. McKinney
Attorney at Law
480 6th St
PO Box 209
Waukee IA 50263
Mr. Judith Ann Higgs
Attorney at Law
701 Pierce St STE 200
PO Box 3086
Sioux City IA 51102-3086
5-1803
Filed November 21, 1994
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DONALD BAKER,
Claimant,
vs.
File No. 980571
HUMBODLT SAUSAGE CO.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
HOME INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803
Non-precedential, extent of disability case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
DONALD BAKER,
Claimant,
vs.
File No. 980571
HUMBOLDT SAUSAGE CO.,
R U L I N G
Employer,
O N
and
R E H E A R I N G
HOME INSURANCE COMPANY,
Insurance Carrier,
Defendants.
_________________________________________________________________
The appeal decision filed May 31, 1995 affirms and adopts the
arbitration decision filed November 21, 1994 and the rehearing
ruling of January 20, 1995.
Signed and filed this ____ day of June, 1995.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert E. McKinney
Attorney at Law
480 Sixth Street
P O Box 209
Waukee, Iowa 50263-0209
Ms. Judith Ann Higgs
Attorney at Law
P.O. Box 3086
Sioux City, Iowa 51102-3086
2402 - 1806
Filed September 24, 1991
BYRON K. ORTON
WRM
before the iowa industrial commissioner
____________________________________________________________
:
E. KENNETH JONES, :
:
Claimant, :
:
vs. :
: File No. 908648
CONTINENTAL BAKING COMPANY, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
AETNA CASUALTY & SURETY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
2402
Claimant drove a bread delivery truck and injured his knee
when stepping out of the truck. The medical evidence showed
that claimant, whose work involved stepping in and out of
the truck up to 100 times daily, began experiencing a
grinding sensation several months later. A physician opined
that claimant's knee "wore out." Claimant filed his
petition beyond the statute of limitations for the traumatic
injury, but claimed the discovery rule. Held that the
nature and seriousness of claimant's initial traumatic
injury was known to claimant from the date of the injury,
and a claim for that injury was barred by the statute of
limitations. However, the wearing out of the knee from the
subsequent stepping in and out of the truck constituted a
separate, cumulative injury and claimant's petition was
timely filed for that injury.
1806
Although an apportionment between the disability caused by
claimant's initial traumatic knee injury and his later
cumulative knee injury might be appropriate if both injuries
had caused disability, under Bearce v. FMC Corporation, 465
N.W.2d 531 (Iowa 1991) there was no direct disability from
the initial injury, and thus all of claimant's present
disability is compensable.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
ROBERT E. GRUBB,
Claimant,
vs.
File No. 980682
CLARINDA TREATMENT CENTER,
A P P E A L
Employer,
D E C I S I O N
and
STATE OF IOWA,
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
November 2, 1993 is affirmed and is adopted as the final agency
action in this case.
Defendants shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of March, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Roger L. Ferris
Attorney at Law
1900 Hub Tower
699 Walnut
Des Moines, Iowa 50309
Ms. Joanne Moeller
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg.
Des Moines, Iowa 50319
5-1100; 5-1108; 5-4000.2
Filed March 28, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ROBERT E. GRUBB,
Claimant,
vs.
File No. 980682
CLARINDA TREATMENT CENTER,
A P P E A L
Employer,
D E C I S I O N
and
STATE OF IOWA,
Insurance Carrier,
Defendants.
____________________________________________________________
5-1100; 5-1108; 5-4002.2
The state was barred from any activity and presenting any
evidence after failing to comply with order to produce
medical and wage records to claimant.
Claimant was awarded 22 weeks permanent partial disability
for a left knee injury found to have been caused by a work
injury.
Claimant was not awarded penalty benefits.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ROBERT E. GRUBB, :
:
Claimant, :
:
vs. :
: File No. 980682
CLARINDA TREATMENT CENTER, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
This case came on for hearing on October 20, 1993, at
Council Bluffs, Iowa. This is a proceeding in arbitration
wherein claimant seeks compensation for permanent partial
disability benefits as a result of an alleged injury
occurring on March 30, 1991. The record in the proceeding
consists of the testimony of the claimant and claimant's
exhibits 1 through 10. The defendants was barred from any
activity or presentation of evidence pursuant to a ruling on
June 26, 1992.
ISSUES
The issues for resolution are:
1. Whether claimant is entitled to a 10 percent loss
of his left leg; and,
2. Whether claimant is entitled to penalty benefits
under Iowa Code section 86.13;
FINDINGS OF FACT
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant was employed with defendants at Clarinda,
Iowa, on March 30, 1991, and is still employed there.
Claimant's exhibit 2 is a report claimant made to the
employer which sets out how claimant injured his left knee
on March 30, 1991. At that time claimant was making a fire
security check and as he passed his desk, his left leg gave
out causing him to fall. A few hours previous to this, as
he was turning around, his left foot had caught in a crack
in the tile and he twisted his left knee.
The same exhibit 2, dated March 31, 1991, also reflects
the supervisor's report which indicates claimant informed
the supervisor of his injury. The supervisor also wrote
Page 2
that claimant appeared to be walking as well then as when he
came to work. Claimant's exhibit 4 is a report by Bruce D.
Smith, M.D., an orthopedic surgeon, in which he opined that
claimant had a 10 percent loss of function related to his
injury of March 30, 1991 which was incurred while he was at
work.
Claimant testified that when he reported his injury to
the state within minutes when he injured his left knee, he
said he had also on the date, March 30, 1991, told the state
that he had injured his right knee at home the previous day
but was not claiming an injury to his right knee.
Claimant's exhibit 5 is the medical bills in the amount
of $9,181.15.
Claimant's exhibit 6 is the mileage claimant incurred
in relation to his medical care in connection with his left
knee injury. Said amount totaled 2,400 miles. At 21 cents
a mile this would amount to $504.
Claimant testified that claimant's exhibit 7 sets out
the healing period that claimant incurred as a result of
this injury, those periods being April 3, 1991 through May
14, 1991; August 19, 20, 22, 23, 24, 1992; September 30,
1992; October 21, 1992; October 29 through December 16,
1992; and, May 14, 15 and 16, 1993. Claimant's exhibit 8 is
a letter from the State of Iowa denying his claim.
Claimant's exhibit 1, which was a report he filed March
31, 1991, asking for leave because of twisting his knee on
March 29, 1991 at home does not say which knee or that it
occurred at home. Claimant testified that it was his right
knee and indicated that the state was told that. Claimant
did not explain at the hearing as to why he didn't refer to
his right knee in that report or that it occurred at home as
it obviously does add confusion to the record. With the
state being barred from presenting any evidence or
participating in this hearing, of course, this could not be
clarified other than accepting claimant's testimony. One
could also see that one could conjecture that the fall on
the left knee was a sequela of the claimant's injury to the
right knee approximately 24 hours earlier as per exhibit 1.
Claimant's exhibit 9 is a letter to Richard Andrews, of
the Department of Personnel, and indicates claimant hurt his
right knee on March 28 but this appears to be his right knee
at home on March 28. This appears to be contrary to what
claimant indicated in his application for leave which refers
to March 29 and doesn't say where it occurred.
Claimant requested the undersigned to take official
notice of the file and all prior letters and orders that
might be in the file and the undersigned agreed to do so.
Claimant's exhibit 9 is one of the series of exhibits
or letters that resulted in the undersigned's June 26, 1992
ruling barring defendants from any further activity and
presentation of evidence. There is nothing in the record or
file that would indicate any responsible response to
Page 3
claimant's attorney in the claimant's attorney's attempt to
either work something out on this case or determine all of
the facts so as to prevent this case from going to
litigation.
A May 7, 1992 letter written by Assistant Attorney
General Joanne Moeller was apparently in response to the
undersigned's May 5, 1992 ruling ordering the employer to
send all medical records in its possession and the
claimant's wage statement one year prior to March 30, 1991,
to the claimant's attorney within ten days from the date of
the ruling. It appears from the record that it had never
been done but Ms. Moeller obviously in her May 7, 1992
letter apologized for the claimant receiving no response
from Dick Andrews. Ms. Moeller goes on to say "as you can
imagine they are very short staffed over there, and cases
are overlooked occasionally." While this is no excuse with
the number of correspondence or the nature of the orders
herein, it is hard for the undersigned to believe that this
case has been so grossly overlooked.
The undersigned is in no respect blaming the Attorney
General's Office or Joanne Moeller for any conduct referred
to herein as shown. In Ms. Moeller's May 7, 1992 letter
which has previously been referred to, she starts as "as the
lucky attorney assigned to this case." It is obvious she
does not like to deal with a case that has such conduct and
results in such sanctions. As the attorney in the Attorney
General's Office that must defend state cases, this includes
conduct of certain state employees. The fact is her apology
does not remedy or solve the conduct the Department of
Personnel has rendered against this claimant.
Whether the Department of Pesonnel is being short
staffed, inefficient, incompetent, lack of leadership, these
are not excuses for the treatment this claimant received.
Good faith action or courtesy by the Department of Personnel
could have warranted different conduct than was exhibited in
this case. The requests made by claimant's attorney to get
to the bottom of this matter would take rather simple action
on behalf of the state and would not have taken much time or
effort. Such conduct in future cases could have more
detrimental effect both to the interest of the claimant and
the State of Iowa. The undersigned finds that such conduct
normally would warrant a penalty in addition to the benefits
awarded herein, but exhibit 1 does raise suspicion and doubt
since it doesn't relate that claimant injured his right knee
at home and claimant files it the same day he files a claim
for his left knee. The claim is fairly debatable.
The undersigned finds that claimant was an employee on
March 30, 1991, with the State of Iowa, at which time he
incurred an injury to his left knee that arose out of and in
the course of his employment. The left knee injury which
resulted in a 10 percent permanent impairment to said leg
was caused by claimant's fall at work on March 30, 1991.
This injury caused claimant to incur a healing period of
April 3, 1991 through May 14, 1991; August 19, 20, 22, 23,
24, 1992; September 30, 1992; October 21, 1992; October 29
through December 16, 1992; and, May 14, 15 and 16, 1993.
Page 4
Claimant's 10 percent impairment to his left leg
results in claimant being entitled to 22 weeks of permanent
partial disability benefits, payable at the weekly rate of
$265.82. Said benefits will commence on May 15, 1991.
The undersigned further finds that defendants shall pay
claimant's medical bills as set out on claimant's exhibit 5
in the amount of $5,181.15, plus 2,400 miles at 21 cents per
mile and equals $504. Both of these items are causally
connected to claimant's March 30, 1991 work injury.
CONCLUSIONS OF LAW
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on March 30,
1991, which arose out of and in the course of his
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904
(Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa
352, 154 N.W.2d 128 (1967).
The claimant has the burden of proving by a
preponderance of the evidence that the injury of March 30,
1991, is causally related to the disability on which he now
bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18
N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
Iowa Code section 85.34(1) provides that if an employee
has suffered a personal injury causing permanent partial
disability, the employer shall pay compensation for a
healing period from the day of the injury until (1) the
employee returns to work; or (2) it is medically indicated
that significant improvement from the injury is not
anticipated; or (3) until the employee is medically capable
of returning to substantially similar employment.
A healing period may be interrupted by a return to
work. Riesselman v. Carroll Health Center, III Iowa
Industrial Commissioner Report 09 (Appeal Decision 1982).
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Iowa Code section 85.27.
Holbert v. Townsend Engineering Co., Thirty-second Biennial
Report of the Industrial Commissioner 78 (Review-reopen
1975).
Iowa Code section 86.13 permits an award of up to 50
Page 5
percent of the amount of benefits delayed or denied if a
delay in commencement or termination of benefits occurs
without reasonable or probable cause or excuse. The
standard for evaluating the reasonableness of defendants'
delay in commencement or termination is whether the claim is
fairly debatable. Where a claim is shown to be fairly
debatable, defendants do not act unreasonably in denying
payment. See Stanley v. Wilson Foods Corp., File No. 753405
(App. August 23, 1990); Seydel v. Univ. of Iowa Physical
Plant, File No. 818849 (App. November 1, 1989).
It is further concluded that claimant incurred an
injury that arose out of and in the course of his employment
on March 30, 1991, which caused claimant to incur a 10
percent permanent impairment to his left leg and to incur
medical bills and mileage.
Claimant's work injury caused claimant to incur various
healing periods.
ORDER
THEREFORE, it is ordered:
That defendants shall pay unto claimant healing period
benefits at the rate of two hundred sixty-five and 82/100
dollars ($265.82) for the periods of April 3, 1991 through
May 14, 1991; August 19, 20, 22, 23, 24, 1992; September 30,
1992; October 21, 1992; October 29 through December 16,
1992; and, May 14, 15 and 16, 1993, for a total of fourteen
point four two nine (14.429) weeks.
That claimant is entitled to twenty-two (22) weeks of
permanent partial disability benefits at the weekly rate of
two hundred sixty-five and 82/100 dollars ($265.82),
beginning May 15, 1991 and are to be interrupted during any
additional healing period and then to continue at such time
as healing periods are not running until the permanent
partial disability benefits are paid.
That defendants are responsible for claimant's medical
bills as referred to in claimant's exhibit 5 in the amount
of nine thousand one hundred eighty-one and 15/100 dollars
($9,181.15) and also as to mileage reflected on claimant's
exhibit 6 totaling two thousand four hundred (2,400) miles
times twenty-one cents ($.21) per mile, equaling five
hundred four dollars ($504).
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid. The record indicates no
benefits have previously been 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
Page 6
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of November, 1993.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Roger L Ferris
Attorney at Law
1900 Hub Tower
Des Moines IA 50309
Ms Joanne Moeller
Assistant Attorney General
Tort Claims
Hoover State Office Bldg
Des Moines IA 50319
5-1100; 5-1108
5-4000.2
Filed November 2, 1993
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ROBERT E. GRUBB, :
:
Claimant, :
:
vs. :
: File No. 980682
CLARINDA TREATMENT CENTER, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-100; 5-1108; 5-4002.2
The state was barred from any activity and presenting any
evidence.
Claimant was awarded 22 weeks permanent partial disability
for a left knee injury found to have been caused by a work
injury.
Claimant was not awarded penalty benefits.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
CHARLES ANDERSON,
Claimant,
vs.
File No. 980696
MIDWEST JANITORIAL SERVICES,
INC.
A R B I T R A T I O N
Employer,
D E C I S I O N
and
THE CINCINNATI INSURANCE
COMPANY
Insurance Carrier,
Defendants.
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration filed by Charles
Anderson, claimant, against Midwest Janitorial Services,
Inc., employer and The Cincinnati Insurance Company,
insurance carrier, defendants for benefits as the result of
an alleged injury which occurred on February 5, 1991. A
hearing was held in Davenport, Iowa, on September 13,1993,
and the case was fully submitted at the close of the
hearing. Claimant was represented by James M. Hood.
Defendants were represented by Candy K. Pastrnak and Hector
Lareau. The record consists of the testimony of Charles
Anderson, claimant, Randall Bernard, operations manager,
Jeff Riechman, insurance claim representative, Scott
Jackson, private investigator, Mary Cannon-James, job
service representative, joint exhibits 1 through 8
(Transcript page 7), claimant's exhibits A through G with
the exception of pages 5 through 19 in exhibit D, which were
withdrawn (Tran. pp. 8 & 9), and defendants' exhibits 1
through 9 (Tran. pp. 10, 13, 67 and 146). Defendants'
exhibit 8 is a floor buffer and defendants were ordered to
maintain custody of the floor buffer until all appellate
periods have expired. Defendants were further ordered to
photograph the floor buffer and send copies of the
photograph to the industrial commissioner's file and to
claimant, which defendants have done on September 23, 1993.
The deputy ordered a transcript of the hearing. Both
attorneys submitted excellent post-hearing briefs.
STIPULATIONS
The parties stipulated to the following matters at the
time of the hearing:
Page 2
(1) That causal connection and entitlement to
temporary disability benefits were not in dispute;
(2) That medical benefits were not in dispute;
(3) That the rate of compensation in the event of an
award was stipulated to be $114.82 per week;
(4) That the type of permanent disability, if the
alleged injury is found to be a cause of permanent
disability, is industrial disability to the body as a whole;
(5) That the commencement date of permanent disability
benefits in the event of an award is August 3, 1991; and
(6) That in the event of an award of permanent
disability benefits that defendants are entitled to a credit
in the amount of $628.08 for the overpayment of temporary
disability benefits at the rate of approximate $140.00,
whereas the correct rate should have been $114.81 per week
(Tran. p. 46).
ISSUES
The parties submitted the following issues for
determination at the time of the hearing:
Whether claimant sustained an injury on February 5,
1991, which arose out of and in the course of employment
with employer;
Whether the injury was the cause of permanent
disability;
Whether claimant is entitled to permanent disability
benefit, and if so, the extent of benefits to which he is
entitled, to include whether claimant is an odd-lot
employee; and
Whether claimant is entitled to penalty benefits.
FINDINGS OF FACT
INJURY
It is determined that claimant sustained an injury to
his lumbar spine on February 5, 1991, which arose out of and
in the course of employment with employer.
Defendants dispute injury for the reason that the
accident that caused the injury was not witnessed. They
assert that claimant's credibility negates the fact that
claimant received an injury as he described on February 5,
1991. Defendants also contend that claimant's post-surgical
recovery was unusual and that it negates his credibility on
whether he received an injury and also his motivation to
return to work.
It is true that claimant's credibility has been
Page 3
impeached and his motivation to work has been impugned but
the weight of the evidence in the record supports the
proposition that claimant did in fact injure his lumbar
spine while operating a floor buffer while in the employment
of employer on February 5, 1991.
Claimant denied and there is no evidence of any prior
back injuries (Tran. pp. 22 & 27; Jt. Ex. 2, p. 2; Jt. Ex.
5, p. 7; Jt. Ex 6, p. 3; Clmt's Ex. E, pp. 1 & 3).
Claimant started to work for employer on June 14, 1990
(Jt. Ex. 8). He was assigned to perform the maintenance
duties at UPS (United Parcel Service).
Claimant testified that on February 4, 1991, his
supervisor, Randy Bernard, told him to machine scrub and
buff the customer service floor on the following day.
Claimant testified that at approximately 6:30 a.m. on
February 5, 1991, he was buffing the customer service floor
when "The whole buffer, it shot up and hit me in the
stomach. And I went backwards into the counter there."
(Tran. pp. 25-27).
Claimant diagramed and made a rough sketch of the area
with defense counsel at the time of the hearing (Ex. 9).
Claimant further explained in some detail how the injury
occurred while referring to the diagram (Tran. pp. 65-79).
Claimant related that no one was present with him when
the injury occurred (Tran. p. 77). With respect to the
accident being unwitnessed claimant explained that everyone
was doing their own job and that he was doing his job and
that is why no one witnessed the injury (Tran. p. 78).
Claimant said that he began to feel "... a little
burning on the right side of my back." (Tran. p. 27).
Claimant testified that he told Vern Pfieffer, a UPS
employee, what had happened and that he had hurt his back.
Claimant said that Pfieffer told claimant to report the
injury to Randy Bernard. Claimant testified that he then
called the answering service and Bernard called him back at
approximately 8:00 a.m. Claimant said that Bernard told him
to wait until he could get a replacement there and then
claimant was to go to the emergency room. Claimant further
related that when the replacement arrived that he went to
the emergency room at Mercy Hospital where he was treated
and released (Tran. pp. 28 & 29). Claimant testified that
the medical personnel at the emergency room at Mercy
Hospital took him off work for two days (Tran. p. 79).
Bernard, the operations manager for employer for some
eight years, testified that claimant was performing his
assigned job on the morning of the injury. Bernard
testified, "He told me but pretty much what he was saying
before. He was running the machine. He backed up --
supposedly backed him up into the stainless steel counter,
and that's when he twisted his back." (Tran. p. 94).
Bernard testified that he asked around but could not
Page 4
find anyone who witnessed the injury (Tran. p. 94). Neither
claimant nor defendants introduced any evidence from Vern
Pfieffer which would either corroborate or refute claimant's
testimony at the hearing. Bernard said that the foregoing
information was what he reported to the insurance company
when he was asked what had happened (Tran. p. 98). Bernard
acknowledged that he got his account of the injury from
claimant (Tran. p. 99).
An incident report, that was labeled "Information
Needed for Workers' Compensation", asked the question, "What
was employee doing when injured?". The response states,
"buffing the floors and buffer handle came back and he tried
to get out way and pulled his back out of place." (Jt. Ex.
8). This report is signed by Randy Bernard.
The Mercy Hospital emergency room records are not in
evidence in the record of hearing (Tran. p. 29).
Claimant testified that two days after the injury he
sought care from Michael K. Ang, D.C., at Hurst
Chiropractic. Claimant averred that Bernard told him to see
a chiropractor (Tran. p. 30). Bernard admitted that he did
recommend a chiropractor but denied that he specifically
recommended Hurst Chiropractic (Tran. p. 95).
The records of Hurst Chiropractic show that claimant
was examined by Dr. Ang on February 7, 1991 for complaints
of headache, pain in the right arm, lower back pain, pain in
the right leg, pain in the right knee and stiffness of the
neck. Their medical records show that Dr. Ang's physical
examination demonstrated decreased lumbar flexion and
extension, lumbar spinal tenderness and positive right and
left straight leg raising. Several orthopedic tests
demonstrated sensitivity of the lumbar and sacral area.
Dr. Ang found cervical, brachial, thoracic, lumbar and
lumbosacral problems which required $1,745.00 worth of
chiropractic manipulation, passive motion therapy,
intersegmental traction and interferential therapy between
February 7, 1991 and February 22, 1991 (Ex. 6, pp. 1-5).
On the workers' compensation questionnaire of Hurst
Chiropractic claimant appears to have reported in his own
handwriting the following, "The buffer I was running handle
is defective and the buffer's hande (sic) shot up at me and
I had to get out of the way." (Jt. Ex. 6, p. 9). In
response to the question, "Where did you feel pain
immediately after the accident?", claimant responded in his
own handwriting "Felt burning in right side" (Ex. 6, p. 9).
Claimant further indicated on the questionnaire that Mercy
Hospital diagnosed a pulled muscle and prescribed a pain
killer (Ex. 6, p. 9).
The medical records show that the lumbar spine films
taken at Hurst Chiropractic were underexposed and did not
establish an x-ray diagnosis (Ex. 6, p. 10). Nevertheless,
Hurst Chiropractic charged $190.00 for A.P. and lateral and
full spine x-rays and another $50.00 to mark and interpret
the x-rays (Ex. 9, p. 7).
Page 5
Dr. Ang continued to keep claimant off work from
February 7, 1991 through March 11, 1991 (Ex. 6, pp. 12-14).
Claimant testified that Jeff Riechman, the insurance
company claim representative, next sent him to Work Well
(Tran. pp. 30 & 31) where he was seen by Edwin A. Motto,
M.D., on March 1, 1991 (Ex. F, p. 1). At Work Well claimant
was continued off work and an evaluation was requested from
Daniel B. Johnson, M.D., a neurologist (Ex. F, p. 1).
Dr. Johnson saw claimant on March 1, 1991 and he
recorded, "... he is thirty-one-year old man who was buffing
a floor on 2/5/91 when the buffer backed up against him and
pushed him into a counter." (Ex. 7, p. 1). Dr. Johnson
ordered an MRI and an EMG and prescribed physical therapy at
Quad City Spine (Tran. pp. 32 & 33). On March 7, 1991 the
MRI revealed herniated L5-S1 disc (Ex. 7, pp. 1, 2 & 3). On
March 26, 1991, Richard L. Vermeer, M.D., at Work Well,
continued claimant off work with a diagnosis of herniated
disc L5-S1 (Ex. F, p. 2).
On March 27, 1991, Dr. Johnson referred claimant to
William R. Whitmore, M.D., an orthopedic surgeon (Ex. F, p.
4). Dr. Whitmore saw claimant on March 25, 1991 (Jt. Ex. 1,
p. 1; Jt. Ex. 5, p. 5). Dr. Whitmore testified by
deposition on March 18, 1993, that he has been a board
certified orthopedic surgeon since 1966. Dr. Whitmore said
that the history that claimant gave have him was as follows,
"Mr. Anderson told me that he had twisted his back when he
was working as a custodian at the United Parcel. He had
been buffing the floor, and it twisted. And the buffer
somehow pushed him backwards. He had to leave work after
that incident or episode." (Jt. Ex. 7, pp. 6 & 7).
Thus, claimant gave the same consistent history to
Bernard, Mercy Hospital, Hurst Chiropractic, Work Well, Dr.
Johnson, and Dr. Whitmore (Tran. pp. 32 & 33).
Dr. Whitmore testified that he examined x-rays taken at
Mercy and they did not show any specific abnormalities. The
MRI of Dr. Johnson showed a herniated disc at L5, S1. The
EMG showed a right side radiculopathy at the S1 nerve root
(Jt. Ex. 5, p. 8). The risks of surgery were explained and
compared with conservative care and claimant elected to have
surgery (Jt. Ex. 1, p. 1).
Dr. Whitmore testified that he explained to claimant
that the surgery would not provide a new back or a new disc
or preclude any problems after surgery. The main reason for
the surgery was to relieve pressure on the nerve which
caused the radiating right leg pain (Ex. 5, pp. 11 & 12).
Dr. Whitmore further testified that he did tell claimant
that he would expect that claimant would be able to
participate in normal sorts of activities after the
surgeries (Jt. Ex. 5, p. 13).
Dr. Whitmore performed a standard laminectomy on March
27, 1991 (Jt. Ex. 5, p. 14; Tran. p. 34). The doctor
related that he removed a large fragment and several small
Page 6
fragments from claimant's lumbar spine (Ex. 5, p. 14).
Dr. Whitmore testified that degenerative disc disease
was primarily the reason for the herniated disc and then the
episode with the buffer intervened and forced the disc
material out of its normal area (Jt. Ex. 5, p. 12).
With respect to causal connection between claimant's
employment and the injury as well as the causal connection
between the injury and claimant's current impairment, this
colloquy took place,
Q. Mr. Anderson gave you a history of buffing
the floor at United Parcel and the buffer doing
something.
Do you have an opinion within a reasonable
degree of medical certainty as to whether that
event that he told you about that's reflected in
your notes was the cause of the herniated
intervertebral disc?
A. I have no reason to believe that it was due
to anything else. He didn't admit anything else
to me.
Q. There is a cause-and-effect relationship
there?
A. We have to assume that, yes.
Q. And do you have an opinion within a
reasonable degree of medical certainty as to
whether or not the permanent impairment of 14
percent was caused as a result of the incident
with the buffer?
A. Yes.
Q. Yes, it is?
A. Yes. (Jt. Ex. 5, p. 45).
After the surgery claimant sought treatment at CHC
(Community Health Care) on September 17, 1991 and gave a
history of using a floor buffer. There was a problem with
the handle. Claimant was pushed against a stainless steel
counter and injured his back (Clm's Ex. E, p. 2). When
claimant was seen by physician's assistant Jane Anderson at
the Community Health Care Clinic on September 17, 1991, she
noted that she discussed a referral of claimant to the
University of Iowa Orthopedic Department but that the
patient deferred this referral at that time (Ex. E, p. 2).
Defendants attacked claimant's credibility with respect
to certain remarks he made about his previous military
service and his previous employments.
It is the opinion of the deputy that claimant's
credibility was impeached on these collateral matters but
Page 7
that his lack of credibility on these points did not destroy
the overwhelming weight of the evidence summarized above
that indicates that claimant did in fact sustain an injury
as he described on February 5, 1991.
Defendants' counsel understood at the time of
claimant's deposition that he indicated that he had received
an honorable discharge from the United States Army, but
claimant replied that he did not claim to have received an
honorable discharge, but rather he testified that he
received a discharge under other than honorable conditions
which claimant classified as an administrative discharge.
Defendants' counsel did establish that claimant did not
tell the truth about the length of time that he was absent
without leave (AWOL) from the army. At his deposition
claimant testified he was absent for about 300 days,
whereas, in fact claimant was absent without leave for two
years and seven months which is approximately 943 days.
To clarify the record, the facts of claimant's military
service are that he joined the United States Army on January
21, 1978 on the delayed entry program. Claimant entered
into active duty on June 20, 1978. Claimant went AWOL two
and one-half months later on September 5, 1978. He was
dropped from rolls and classified as a deserter on October
4, 1978. He was apprehended by military authorities on May
18, 1981. Claimant requested to be discharged for the good
Page 8
of the military service and received a discharge under other
than honorable conditions on June 25, 1981 (Defs'. Ex. 1).
Defendants' counsel established that claimant gave
apparent inconsistent testimony about his AWOL situation
with respect to the reason why he absented himself without
leave. At the hearing claimant testified he went AWOL,
"Because my mom was stuck with my two younger sisters, and
they were having a real hard time making it." (Tran. p. 59).
However, while being terminated from the army in 1981,
claimant gave this written statement in his own handwriting
over his own signature, "I would not make a good soldier, I
can't take displine (sic). I turn myself in to just get
this cleared so more doors would open up job wise. I want
to go back to being a wrangler what I love to do. Signed
Charles F. Anderson" (Jt. Ex. 1, p. 34; Tran. pp. 59 & 60).
Another apparent inconsistency about claimant's
military service was his testimony that he turned himself in
but the military records show that he was apprehended by
military authorities (Defs' Ex. 1, pp. 27 & 48; Tran, p.
61).
At the hearing claimant testified that almost all of
his previous employments required lifting of more than 50
pounds but when these employments were reviewed by
defendants' counsel it was apparent that this was not a
correct statement (Tran. pp. 24 & 62; Clmt's Ex. G).
It is the opinion of this deputy that claimant's
testimony was impeached and called into question on a number
of points on these collateral matters but, nevertheless,
this did not destroy the overwhelming evidence summarized
above that claimant did in fact injure his lumbar spine
while buffing a floor on February 5, 1991.
Defendants have also contended that claimant's recovery
behavior and return to work behavior after his lumbar
laminectomy was not credible and negates the fact that he
received a lumbar spine injury on February 5, 1991, as well
as any permanent disability from that injury.
It is the opinion of this deputy that defendants'
counsel did impeach the credibility of claimant, and did
impugn his motivation with respect to making a normal return
to work based upon the established medical evidence, but
nevertheless, his lack of credibility and his lack of
motivation to return to work does not negate or destroy the
overwhelming evidence that he did sustain an injury to his
lumbar spine on February 5, 1991, while buffing the floor
during his employment for employer.
More specifically, these facts are as follows.
Dr. Whitmore released claimant to return to work light
duty on July 22, 1991 for two weeks and then full-time work
after that. (See the request for medical report from Job
Service in the deposition exhibits, joint exhibit 5, which
is unnumbered, which appears to be completed on August 23,
1991.) Claimant testified that the work was within his job
Page 9
restrictions but that he tried to do the work for about an
hour and a half but that he was unable to do the work (Tran.
p. 82). Claimant testified, "I was hurting so bad I had to
lay on the floor at the place I was cleaning. And I called
Randy and told him I couldn't do it. I was hurting too
much." (Tran. p. 35).
Claimant testified, "I tried very hard. I got as much
as I could. I hurried and tried to get as much clean as I
could, but the pain -- I was having to stop and lay down on
the floor to release some of the pain so that I could
continue and get back up and go and do some more." (Tran. p.
82).
With respect to this incident Bernard testified that he
assigned claimant to a job within his restrictions cleaning
a room, pushing a vacuum, emptying waste cans, cleaning
about four stools in restrooms, sweeping, mopping and no
heavy lifting whatsoever (Tran. p. 95). Bernard testified
that according to his records claimant was paid for 30
minutes of work. Bernard denied that claimant was
terminated. Bernard testified, "No. He walked off the job
that night saying that he couldn't do the job, and I
consider that quitting." (Tran. pp. 96 & 97). Bernard
testified that the only restrictions were weight
restrictions of 30 pounds and nothing in that job exceeded
30 pounds (Tran. p. 97).
Subsequent to that, on August 8, 1991, claimant wrote a
letter in his own handwriting to employer which reads as
follows, "I writting (sic) to see if you found me something
in the office answering phones or something I can handle.
I'm suppose to be released for full time employment and I'm
broke. I need work I can do. Thanks Charles F. Anderson
(Clmt's Ex. C).
Dr. Whitmore's testimony on this incident was as
follows, in response to a letter from Riechman.
Riechman wrote to Dr. Whitmore on July 30, 1991.
On July 26, 1991 Midwest Janitorial put Charles
to work cleaning two offices. His duties
consisted of dusting, emptying trash cans that
weigh at the very most 5 pounds, and vacuuming.
The total time to clean these offices would have
been about 3 hours, but after 30 minutes Charles
quit saying the work was two (sic) hard for him.
Could you please advise me as to whether or not
their (sic) is any medical reason, relating to his
back injury, that he should not be able to do this
type of work. (Riechman letter of July 30, 1991 to
Dr. Whitmore, which is an unnumbered deposition
exhibit in exhibit 5)
Dr. Whitmore responded to Riechman on August 5, 1991,
"The circumstances that you described in your letter of 30,
July 1991, in my opinion, falls within the limits outlined
for his abilities at this time." (August 5, 1991 letter of
Page 10
Dr. Whitmore to Riechman, which is an unnumbered deposition
exhibit in joint exhibit 5). In his deposition Dr. Whitmore
testified that these duties do fit his description of his
abilities (Jt. Ex. 5, p. 36).
Defendants' counsel impeached claimant's credibility
with respect to the job search he had performed in this
case. However, even though this may establish a lack of
motivation to return to work it does not destroy the
overwhelming evidence of injury summarized above. This
evidence is as follows.
Claimant testified that he tried to find employment at
513 different places and made a list of them. However,
defendants' counsel elicited on cross-examination that many
of these places were simply random cold calls who did not
actually have an opening for an employee and were not
actively seeking a new employee at the time claimant
contacted them (Tran. pp. 37, 38 & 84). Claimant admitted
that only about 25 of these contacts were looking for an
employee and of those 25 he only generated 6 interviews
(Tran. pp. 38 & 39).
Claimant admitted that he applied for construction jobs
even though he was not able to do them as well as other jobs
he probably could not perform (Tran. pp. 88-90).
Defendants' counsel impeached claimant's testimony with
respect to his 513 person job search by introducing a number
of affidavits from business persons where claimant had
indicated that he applied for employment. These affidavits
indicated that the business had either (1) never heard from
claimant or (2) had no application from him (Defs' Ex. 3, 4,
5 & & 7) or (3) that these prospective employers never made
the statements that claimant attributed to them (Dets' Ex.
6).
The fact claimant received a discharge other than
honorable from the military service may have also been
affecting his ability to find employment. In the letter he
wrote to military authorities at the time of his discharge
he indicated that it had given him problems in the past.
Defendants' counsel established through the testimony
of Mary Cannon-James, a job service representative, that
they understood that claimant was a veteran because he told
them he entered the service June 19, 1978 and was separated
on June 25, 1981. Cannon-James explained that anyone who
serves over 180 days is classified as a veteran (Tran. pp.
135-138; Defs' Ex. 1, p. 2).
The balance of the testimony of Cannon-James verifies
that claimant did advise them that his discharge was a
general discharge and that he had lifting restrictions of 30
pounds due to a ruptured disc in his back which occurred on
February 5, 1991 and that claimant was using a cane to get
around (Tran. p. 139; Ex. 2, p. 5).
Cannon-James testified that claimant had been contacted
for a number of job openings but the record showed no
Page 11
response (Tran. p. 141; Ex. 2, p. 6). She testified that in
today's job market one has to be aggressively looking for
work in order to find employment (Tran. p. 142). However,
she acknowledged that claimant could have responded to the
notices sent out by Job Service without going to Job Service
(Tran. p. 144).
The testimony of Cannon-James may throw some doubt on
claimant's motivation to return to work but it does not rise
to the level of negating the overwhelming evidence that
claimant sustained an injury to his lumbar spine on February
5, 1991, as he described in his testimony and is documented
in all of the medical reports summarized above.
Defendants' counsel attempted to show that claimant's
unusual and unexplainable pain behavior subsequent to the
surgery negated his credibility that he actually sustained
an injury on February 5, 1991, as he described. It is the
opinion of the deputy that claimant's pain behavior may
reflect upon his motivation to work but does not negate the
overwhelming evidence that claimant sustained the injury
that he described based upon the overwhelming evidence
summarized above.
This evidence is as follows.
Dr. Whitmore testified that after the surgery when
claimant was in the hospital that claimant told him that his
leg pain was virtually gone. Dr. Whitmore signified and his
office notes show that on April 16, 1991, claimant told him,
"lots better than before surgery" ... "90% better". (Jt.
Ex. 1, p. 2; Jt. Ex. 5, p. 16 & 17). On April 5, 1991, the
doctor noted that claimant said the pain down his leg was
only 50 percent of what it was before (Jt. Ex. 1, p. 2).
At the same time Dr. Whitmore said that he began to
notice some unusual behavior on the part of claimant. First
of all claimant began walking with a cane, even though he
had not prescribed a cane because it was not necessary (Ex.
1, p. 2; Ex. 5, p. 18). Second, at times claimant would
appear to be comfortable and relaxed and in no distress and
during this same office visit at other times it would appear
as though he had considerable distress and was having a lot
of pain (Jt. Ex. 1, pp. 1 & 2; Jt. Ex. 5, p. 16). Third, on
May 17, 1991, claimant continued to walk with a cane, and he
was also limping. He acted frustrated, angry, distressed
and he was pessimistic.
The doctor said that claimant's physical examination
was normal, the wound was well healed, reflexes were normal,
straight leg raising was normal, muscle strength was normal
and motion was normal. Dr. Whitmore testified, "What you
saw and what objective things were did not correlate." (Jt.
Ex. 5, p. 21). Dr. Whitmore said he recommended counseling.
The doctor said claimant agreed to counseling at first and
Dr. Whitmore made an appointment for counseling but
subsequently claimant declined to go. The doctor said the
only reason that he was given by claimant was that the
insurance company had done something to make claimant angry
and that was the reason he did not go (Jt. Ex. 5, pp.
Page 12
21-23).
Dr. Whitmore said that at the time of the office visit
on June 7, 1991, claimant demonstrated even more unusual
postural findings. He said that claimant was totally rigid
and complained that any motion whatsoever in his body caused
pain. The doctor said he performed two tests which rarely
cause pain and that both tests produced significant
complaints of pain and pain reaction by claimant. The
doctor said he asked claimant to heel and toe walk and
claimant told him that this was almost impossible for him to
do. Dr. Whitmore said that even the slightest touch
produced a great deal of pain on claimant's part (Jt. Ex. 1,
pp. 3 & 4; Jt. Ex. 5, pp. 22 & 23).
On June 6, 1991, Loren Arp, the physical therapist
wrote to Dr. Whitmore that he had performed a functional
capacity examination. Arp said that claimant should have
more strength and endurance than he demonstrated compared to
his body weight. Arp wrote that claimant's results "were
inconsistent which would note either a poor effort or a poor
understanding of the instructions for the test." (Jt. Ex. 3,
p. 2). The functional capacity examination of Arp on June
6, 1991 indicates that claimant should be able to perform a
light duty job like employer offered him on July 26, 1991.
On June 11, 1991, Dr. Whitmore advised Arp of the
inconsistencies that he found on claimant's recent
examinations and Dr. Whitmore then noted that "I advised Mr.
Arp of the inconsistencies on his last physical exam and Mr.
Arp told me that his testing was inconsistent also.
Therefore I believe we should not input any more
physiotherapy at this time." (Jt. Ex. 1, p. 4).
In the course of his treatment claimant related a
number of unusual pain experiences to Dr. Whitmore for which
the doctor had no medical explanation. On April 2, 1991,
claimant reported that he rolled over on his stomach and had
an electric shock like pain shoot down his right leg to his
foot.
On July 16, 1991, the doctor noted that claimant
reported playing Nintendo with his nephew for 45 minutes and
developed low back pain and had to lie down.
On August 20, 1991, claimant reported that on August
13, 1991, he reached his arms overhead to yawn and felt an
excruciating pain in his neck which lasted two or three
minutes.
On August 20, 1991, the doctor also related another
episode where claimant had a cramp that almost knocked him
down two or three days before he went back to work (Jt. Ex.
1, pp. 2, 4 & 5; Jt. Ex. 5, p. 31).
Dr. Whitmore testified that he made an appointment for
claimant on October 31, 1991 and claimant did not show up
for it and this concluded his treatment of claimant (Jt. Ex.
5, p. 32).
Page 13
On June 20, 1991, Dr. Whitmore said that he had no
explanation for these inconsistencies in claimant's recovery
behavior. He said there was nothing more that he could do
for claimant. The doctor testified that he thought that
claimant should go back to work (Jt. Ex. 5, p. 29; Jt. Ex.
1, p. 5).
Robert J. Chesser, M.D., performed an independent
medical examination for claimant at claimant's request on
June 20, 1992. Dr. Chesser related that the buffer started
to pin claimant against the wall and he twisted quickly to
get out of the way. Thus, the history that claimant has
given to all of the doctors is consistent.
Claimant related to Dr. Cheeser that he felt worse now
than before the surgery. Normally, an injury is worse at
first and gradually improves over time with or without
medical treatment.
Dr. Chesser ordered a repeat MRI with Gadolinium and a
repeat EMG in order to determine whether something had been
missed in claimant's treatment with Dr. Whitmore. The MRI
showed no recurrent disc extradural defects but that
claimant did suffer from mild residual early degenerative
disc disease at L5, S1. Dr. Chesser said the
electrodiagnostic testing was within normal limits (Jt. Ex.
5, p. 38). Dr. Chesser did not attempt to give an
explanation or diagnosis for claimant's deteriorating and
unusual subjective pain complaints (Jt. Ex. 2, pp. 1-11).
Dr. Whitmore said that the medical profession knows the
normal recovery for a herniated disc surgery and that his
objective testing showed that claimant's complaints of
severe pain and disability were not consistent with a
recovering herniated disc (Jt. Ex. 5, p. 33). Dr. Whitmore
said that the maximum medical recovery should have occurred
on August 3, 1991 (Jt. Ex. 5, pp. 34 & 35).
Thus, even though defendants have successfully
impeached claimant's testimony on several points about his
military service and have impugned his motivation to return
to work by the foregoing evidence, nevertheless, this
evidence does not negate the fact that claimant sustained an
injury to his lumbar spine on February 5, 1991, as shown in
the previous summary of the evidence.
The historical chain that establishes injury is
unbroken.
Claimant described an injury when the buffer forced him
against the stainless steel counter and he felt a burning
sensation on the right side of his back. The injury was not
witnessed but this is not unusual. As claimant pointed out,
everyone was doing their own job at that time and that he
was doing his job. Claimant did say that he told a UPS
employee about the injury. Claimant said he then reported
the injury to his supervisor, Bernard, who sent him to Mercy
Hospital emergency room. Claimant later received care from
Hurst Chiropractic with the knowledge and implied consent of
Bernard. The report of the incident, the Mercy treatment,
Page 14
and the Hurst Chiropractic treatment for an injury that
occurred at work with a buffer was all verified by Bernard.
Claimant has consistently given essentially the same
history to Bernard, Mercy Hospital, Dr. Ang, Dr. Motto, Dr.
Vermeer, Dr. Johnson, Dr. Whitmore, Community Health Care,
Dr. Chesser and Riechman. Dr. Whitmore, who has a lot of
experience in these matters, and who was the treating
orthopedic surgeon said that he assumed that this history
was correct. No doctor has suspicioned or suggested any
other cause for this injury. The fact that claimant was
incorrect or possibly lied about collateral matters with
respect to his military service or certain aspects of it
have no bearing and do not controvert the overwhelming
evidence in this case of a work injury. Therefore, the
deputy's determination that claimant was credible about this
injury coincides with all of the medical professionals who
examined or treated claimant.
The fact that claimant's recovery was inconsistent with
normal intervertebral herniated disc recovery, and that
claimant related a number of unusual pain experiences
related to his alleged disability, have no bearing on the
solid record in this case (1) that claimant was injured by
the buffer, and (2) that the injury was the cause of
aggravating claimant's preexisting degenerative disc disease
and made his intervertebral herniated disc symptomatic which
required the surgery of Dr. Whitmore.
Wherefore, even though defendants have successfully
impeached claimant's testimony on several points about his
military service and have impugned his motivation to work by
the foregoing evidence, nevertheless, this evidence does not
rise to the level of negating or destroying the overwhelming
chain of events that show that claimant did in fact sustain
an injury to his lumbar spine on August 5, 1991, that arose
out of and in the course of his employment with employer
while buffing the floor at UPS.
casual connection-entitlement-permanent disability
It is determined that the injury of February 5, 1991
was the cause of permanent disability and that claimant has
sustained a 15 percent industrial disability to the body as
a whole and is entitled to 75 weeks of permanent partial
disability benefits.
It is further determined that claimant is not an
odd-lot employee.
Claimant's young age of 31 at the time of the injury
and 33 at the time of the hearing does not increase but
rather tends to decrease, claimant's entitlement to
industrial disability. Claimant is still young enough to
develop one or more careers that would provide gainful
employment and sufficient income to earn a livelihood for
him until the normal retirement age of approximately 60 or
65 years of age. This gives claimant some 30 years yet to
be used to his advantage in earning a livelihood (Tran. p.
21). Becke v. Turner-Busch, Inc., Thirty-fourth Biennial
Page 15
Report of the Industrial Commissioner 34 (Appeal Decision
1979); Walton v. B & H Tank Corp., II Iowa Industrial
Commissioner Report 426 (1981); McCoy v. Donaldson Company,
Inc., file numbers 782670 & 805200 (App. Dec. 1989).
Claimant's education does not increase his industrial
disability. Claimant has a high school education and this
is the base line for employment in the competitive labor
market (Tran. p. 23). Claimant is interested in study and
learning and it is determined that claimant is capable of
retraining. Claimant attended airline travel and accounting
school, even though he dropped out because he found
accounting difficult. This is not unusual; a lot of people
find accounting difficult. Claimant appeared to be an
intelligent and articulate person at the time of the
hearing. The deputy formed the opinion that claimant is
capable of either academic or on-the-job training to learn
one or more new careers. In fact, claimant was attending
classes at the time of the hearing to learn how to become
self-employed and start his own business (Tran. pp. 49 &
50). Likewise, claimant was exploring the possibility of
entering a training program to become a missionary at the
time of the hearing (Tran. p. 50).
Claimant has demonstrated a flexibility and
adaptability for assimilating and learning new employments
prior to this injury. Between 1977, when claimant was 17
years old, until the date of the injury in 1991, when
claimant was 31 years old, a period of 14 years, claimant
has performed 27 different employments in Illinois, Arizona,
Hawaii, American Samoa and Iowa (Clmt's Ex. G, pp. 1-4).
Many of claimant's past employments involved manual labor
and he has also worked as a security guard. Whether
claimant could perform manual labor types of jobs in the
future would depend upon his motivation and his bona fide
attempt to perform them. Based upon the information
supplied by the treating orthopedic surgeon, Dr. Whitmore,
claimant is able to work.
The disability issue, like the injury issue, requires
claimant to establish his disability by a preponderance or
weight of the evidence. The burden of proof is upon
claimant to establish the extent of his industrial
disability. Armstrong v. State of Iowa Building and
Grounds, 382 N.W. 2d 161, 166 (Iowa 1986). Claimant's
inability to perform light housekeeping duties is not
supported by or explained by any medical or nonmedical
evidence in the record. Claimant contended that he was
unable to perform these duties and found it necessary to lay
on the floor in pain. However, the treating orthopedic
physician, Dr. Whitmore, stated in writing and testified by
deposition that claimant should be able to perform these
duties without difficulty.
Claimant's supervisor, Bernard, though claimant should
be able to perform these duties without difficulty.
Claimant's own choice of physicians at the Community Health
Care and Dr. Chesser did not offer any explanation for pain
so severe that claimant was unable to perform light duty
work or light to medium work. On the contrary, the repeat
Page 16
MRI and EMG ordered by Dr. Chesser failed to disclose any
reason for such severe pain other than claimant's mild and
preexisting degenerative disc disease.
The functional capacity examination performed by Arp on
June 6, 1991, would also permit claimant to perform
sedentary, light and light to medium work. Arp indicated
that he actually believed that claimant could perform even
more work than this physical capacity examination showed.
Arp believed that claimant's ability to lift was
inconsistent with his body weight. Arp is an expert in his
field and his opinion should be respected.
Even with the limitations that Arp recorded based on
claimant's performance, Arp, nevertheless, found that
claimant was able to work eight hours per day and forty
hours per week. He said claimant was capable of sitting for
four hours, standing four hours, and walking four hours.
Based upon claimant's demonstrated performance Arp said
claimant should not climb at all. He was not supposed to
carry or lift from the floor to waist more than 34 pounds.
He was not to lift more than 10 pounds overhead. He was not
supposed to push or pull more than 50 pounds. In his
closing paragraph Arp pointed out that these were not
permanent limitations but that claimant's ability could
increase if given a change due to patient progress, future
medical intervention or other circumstances. Motivation
would fall under other circumstances (Ex. 3, pp. 1-5).
Claimant's own evaluating physician, Dr. Chesser, said
that claimant was capable of full-time work with a permanent
weight restriction of 30 pounds on an occasional basis which
he defined as ten times per hour. Dr. Chesser also
recommended to alternate sitting and standing every 20 to 30
minutes, but it was only a recommendation, it was not
imposed as a hard, fast permanent restriction for all time.
Dr. Whitmore, the treating orthopedic surgeon, who
should be in the best position to know, testified that he
did not think any work restriction should be imposed on
claimant. Dr. Whitmore further stated that lifting
restrictions of 30 pounds, 32 pounds or 35 pounds were
arbitrary (Jt. Ex. 5, p. 49).
In his deposition given on March 18, 1993, Dr. Whitmore
testified that claimant should be able to return to work.
His testimony on this point was as follows:
Do you have an opinion within a reasonable
degree of medical certainty as to whether or not
Mr. Anderson should be able to return to work?
A. Based on the fact that he had a herniated
intervertebral disc, had it treated and had no
objective complications of the disease or the
surgery, I see no reason why he couldn't go back
to work.
He should have no limitations based on those
Page 17
things. There is no reason why he couldn't go
back to employment." (Jt. Ex. 5, pp. 41 & 42).
With respect to whether claimant should have any
lifting restrictions or not, the opinion of Dr. Whitmore is
preferred over the opinion of Dr. Chesser. Dr. Whitmore has
been a board certified orthopedic surgeon since 1966, a
period of approximately 28 years. Dr. Whitmore saw the
claimant on several occasions and monitored his recovery
closely. As the treating physician Dr. Whitmore bears a
certain amount of responsibility for the ultimate success or
failure of claimant's recovery. By comparison, Dr. Chesser,
a physical medicine physician, only examined claimant on one
occasion for the purpose of giving an opinion for the
purpose of litigation. Rockwell Graphics Systems, Inc. v.
Prince, 366 N.W.2d 187, 192 (Iowa 1985). The treating
orthopedic surgeon had more opportunity to form his expert
opinion than the one-time examiner of claimant. Lemon v.
Georgia Pacific Corp., II Iowa Industrial Commissioner
Report 204, 205 (App. Dec. 1981); Clement v. Southland Corp,
I Iowa Industrial Commissioner Report 56, 58 (1981). A
doctor's expertise and board certification may accord his
testimony greater weight. Reiland v. Palco, Inc.,
Thirty-second Biennial Report of the Industrial Commissioner
56 (1975); Dickey v. ITT Continental Baking Co.,
Thirty-fourth Biennial Report of the Industrial Commissioner
89 (1979).
If there are psychological factors bearing on
claimant's disability claimant did not use the opportunity
to develop them. Dr. Whitmore made an appointment for
psychological counseling and claimant initially agreed to
receive it, but eventually he declined this opportunity with
the stated reason that he became angry at the insurance
carrier. Thus, there is no evidence of a professional
nature to support a claim for any psychological disability
in this case even though claimant was given the opportunity
to be examined and evaluated.
Dr. Whitmore said that he was unable to speculate on
what restrictions might be appropriate for psychological
reasons without a psychological examination (Jt. Ex. 5, p.
49).
In a medical report to Job Service which claimant
authorized on August 22, 1991, in order to determine his
eligibility for unemployment compensation benefits, Dr.
Whitmore stated that claimant suffered a herniated
intervertebral disc at L5-S1, right which was employment
related, but that he did not advise claimant to quit his
job. Dr. Whitmore did verify that claimant was unable to
perform his occupation from February 5, 1991 to July 22,
1991 due to the herniated disc surgery. However, when asked
about restrictions, Dr. Whitmore wrote, "Released to part
time work with no strenuous lifting for two weeks, then full
time work." (Jt. Ex. 5, unnumbered deposition Ex.).
As a result of this report claimant was able to receive
unemployment compensation benefits in September of 1991
until June of 1993 (Tran. p. 89). Thus, claimant's
Page 18
contention that he was unable to perform any work and that
he is an odd-lot employee is irreconcilable with the opinion
of the treating orthopedic surgeon as well as his own
evaluating physician. Also claimant's acceptance of
unemployment compensation benefits is based upon the fact
that he certifies to Job Service that he is able and
available to work.
Claimant admitted that no doctor had prescribed a cane.
Claimant contended that he used the cane because he got bad
cramps in his back and spasms in his back and if he did not
have a cane he would be on the ground and he preferred not
to be on the ground (Tran. p. 43).
No doctor ever explained why claimant should walk with
a limp. Claimant testified that he continued to experience
a burning sensation in his right leg down into his toes as
well as cramping in his legs sometimes. Claimant was not
taking any prescription medications at the time of the
hearing. He said he only took Advil or Tylenol possibly
three times a day (Tran. pp. 44 & 45).
Claimant said he went to Iowa Vocational
Rehabilitation. They sent him to Skills Incorporated in
Moline. Claimant said they had him stand for long periods
of time and if he stood for longer than 45 minutes the
cramps got so bad he had to lay down (Tran. p. 45).
Claimant explained that what bothered his back on his
trial return to work was bending to clean toilets and empty
trash and clean windows. He said the difficulty was a lot
of bending and stretching and vacuuming (Tran. p. 36).
Scott Jackson, a private investigator, testified that
he was hired to observe claimant in February of 1993. He
testified that he video taped claimant for approximately a
half-hour bent over at the waist approximately 90 degrees
working on the engine of a car with the hood up in front of
his residence. Jackson testified that he saw claimant squat
and bend a number of times. Jackson testified that
claimant's actions did not appear to be forced or restricted
in any way. Jackson further testified that later in the day
he observed claimant work on another car for approximately
another half-hour. The witness said that claimant moved his
body in an unrestricted fashion (Tran. pp. 102-117).
Thus, claimant's testimony about his restricted
abilities to bend and stretch and perform sustained work has
been controverted, rebutted and contradicted by Jackson's
testimony. Jackson further testified that he observed
claimant run errands without any apparent difficulty in his
movements.
Even if it were to be assumed for purposes of argument,
that claimant is unable to work, claimant has not
established a large actual wage loss because all of his
previous employments were minimum wage jobs or entry level
wage jobs and he can still command those wages if he were to
return to work at practically any work today (Tran. p. 23).
Page 19
Thus, it can be seen that claimant has not demonstrated
any psychological disability through professional medical
testimony. Nor has he established, by the weight of the
evidence, that he is unable to work for physical reasons
based upon the evidence of any of the medical professionals
who have testified or submitted evidence in this case.
Furthermore, since claimant has not actually performed any
work it is difficult if not impossible to ascertain how much
industrial disability, if any, that really exists in his
case. Schofield v. Iowa Beef Processors, Inc., II Iowa
Industrial Commissioner Report 334, 336 (1981). Thus, it
would appear that claimant's permanent disability is limited
to approximately his physical or functional impairment as
determined by the ratings of the two physicians that
evaluated him and supplied ratings for his permanent
impairment in this case.
Dr. Whitmore determined that claimant sustained a 10
percent permanent impairment on September 16, 1991, in
response to a letter from Riechman dated September 10, 1991
(Clmt's Ex. A, pp. 6 & 7; Jt. Ex. 5, pp. 45 & 47). Dr.
Chesser determined that claimant sustained a 14 percent
impairment on January 20, 1992 (Jt. Ex. 2, p. 3). Dr.
Whitmore said that the 14 percent impairment rating of Dr.
Chesser was a fair rating, but he also commented that 4
percent of it was based on motion which is somewhat of a
subjective thing (Jt. Ex. 5, p. 41). None of the other
physicians in this case, Dr. Ang, Dr. Motto, Dr. Vermeer,
Dr. Johnson, or the Community Health Care physician's
assistant, Anderson, were requested to supply a permanent
impairment rating (Tran. p. 20).
Industrial disability is not necessarily greater than
functional impairment but can be equal to, less than or
greater than functional impairment. Lawyer and Higgs, Iowa
Workers' Compensation, Second Edition, Section 13-5 at page
131.
Wherefore, based upon the industrial disability factors
of age, education, retraining, ability to perform past
employments, loss of actual wages, and loss of earning
capacity, claimant has proved very little industrial
disability over and above his permanent physical and
functional impairment ratings. Diederich v. Tri-City Ry.
Co., 219 Iowa 587, 258 N.W. 899 (1935); Olson v. Goodyear
Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Dr.
Whitmore, the board certified treating orthopedic surgeon
with approximately 28 years of experience found no reason
why claimant should be unable to work, based upon his own
personal extensive clinical testing as well as the
subsequent MRI and EMG performed by Dr. Chesser.
Therefore, it is determined that claimant has sustained
a 15 percent industrial disability to the body as a whole
and is entitled to 75 weeks of permanent partial disability
benefits.
PENALTY BENEFITS
It is determined that defendants are guilty of a delay
Page 20
in the commencement of permanent disability benefits which
occurred without reasonable or probable cause or excuse and
that claimant is entitled to an award of 50 weeks of penalty
benefits at the rate of 50 percent based upon the 10 percent
impairment rating of Dr. Whitmore dated September 16, 1991
in the total amount of $2,870.25 (50 % x $114.81 = $57.405 x
50 = $2,870.25).
Defendants admitted in response to the request for
admissions that the impairment rating given by Dr. Whitmore
on September 16, 1991 to Riechman was not forwarded to
claimant or his attorney within 20 days after the receipt of
the rating. Rule 343 IAC 4.17. Defendants further admitted
in the response to request for admissions that the employer
and insurance carrier did not serve other correspondence
between Dr. Whitmore and the employer and insurance carrier
on claimant in a timely fashion. Defendants further
admitted that they had never paid claimant any permanent
partial disability benefits (Ex. D).
Riechman testified that he started to work for the
insurance carrier in September of 1990 and that he came to
Iowa in December of 1990. He stated that he met claimant in
the course of the investigation of this injury. The witness
said that he had only been on the job as a field adjuster
for about two months at the time of this claim.
Riechman testified that as time went by he found
inconsistencies about claimant's recovery in the report of
Arp, the physical therapist, and Dr. Whitmore, the treating
physician, which he discussed with defendants' counsel.
Riechman said that it was decided that the claim should be
contested.
Riechman said that he talked to people about the buffer
and how it was operated. He concluded that the injury could
not have occurred in the manner that claimant stated.
However, apparently Riechman did not take any statements
from these people nor did defendants submit any evidence
into the record at the time of hearing on this point.
Defendants did not offer any documentary or testimonial
evidence to support Riechman's conclusion. As far as this
case goes it is simply a conclusion without any supporting
tangible evidence.
Furthermore, before making a decision not to pay
permanent partial disability benefits an insurance company
should make an adequate investigation and be prepared to
support their position with a reasonable investigation which
was not done in this case.
Furthermore, Riechman's memory and record keeping were
both faulty. He could not recall and he could not establish
whether he forwarded the permanent impairment rating of Dr.
Whitmore to his own counselor or not. Defendants' counsel
made a professional statement that she first learned of the
permanent impairment rating of Dr. Whitmore at the time of
his deposition on March 18, 1993, which was almost a year
and a half after it was made (Tran. pp. 127 & 131).
Page 21
Even after defendants' counsel learned of the 10
percent impairment rating of Dr. Whitmore on March 18, 1993,
at the time of his deposition defendants still did not pay
claimant any permanent disability benefits and did nothing
to obtain a competing or opposing rating to that of their
own authorized treating physician, Dr. Whitmore.
Riechman further admitted that he never checked out his
investigative findings about the operation of the buffer,
(whatever they were) with the doctor in order to get a
professional medical opinion on the point of causation
(Tran. pp. 127 & 132). Riechman further admitted that he
never obtained the Mercy Hospital emergency record (Tran. p.
134). In a response to a request for admissions defendants
submitted that Riechman wrote to Dr. Riechman for an
impairment rating on September 10, 1991 (Ex. A, p. 6).
Defendants further admitted that Dr. Whitmore responded by
letter dated September 16, 1991 assigning a 10 percent whole
body impairment based on the fact that claimant had
sustained a herniated intervertebral disc which was treated
surgically and from which claimant continued to have some
residual symptoms (Ex. A, p. 9).
Claimant testified that he was never notified by the
insurance company that Dr. Whitmore had determined he had a
10 percent impairment rating (Tran. pp. 46 & 47). Claimant
and his attorney first learned of the 10 percent permanent
functional impairment rating at the time of Dr. Whitmore's
deposition on March 18, 1993, when claimant's counsel
requested to see Dr. Whitmore's file. Claimant still had
not been paid any permanent disability benefits at the time
of the hearing (Tran. p. 48). Since defendants were not
disputing their own doctor's permanent impairment rating
with any other impairment rating they should have paid it as
soon as they received it.
Irrespective of whether Riechman failed to serve this
report on his own counsel or opposing counsel through
ignorance, inexperience, inadvertence or neglect, the fact
still remains that an injured worker was deprived of his
rightful entitlement to permanent partial disability
benefits which should have commenced at the end of healing
period. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
The inconsistencies which Riechman referred to, that
were mentioned by Arp and Dr. Whitmore, related to the issue
of disability and not to whether claimant has sustained an
injury or not. There are numerous industrial commissioner
decisions which hold that defendants are liable for penalty
benefits when they fail to pay at a bare minimum their own
authorized treating physician's impairment rating when they
have no other conflicting medical evidence and furthermore
were not seeking any. Dr. Whitmore, their own doctor, said
the employment caused this injury and that the injury caused
a 10 percent permanent impairment.
Neither Riechman, nor defendants' counsel, or anyone
else on the behalf of defendants offered any reasonable or
probable cause or excuse for not paying claimant the 10
percent impairment rating determined by their own physician
Page 22
and which they were not disputing. The idea that it would
be determined that claimant had not sustained a work injury
was not realistic based on the overwhelming evidence that he
did.
Wherefore, it is determined that defendants delayed and
failed to commence permanent partial disability benefits to
claimant at the end of healing period in the amount of 50
weeks based upon the 10 percent permanent impairment
determined by Dr. Whitmore on September 16, 1991. Fifty
percent of the stipulated rate of $114.81 is a penalty rate
of $57.405. This penalty rate times 50 weeks equals
$2,870.25.
CONCLUSIONS OF LAW
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
That claimant's credibility on matters concerning his
military service and other items as well as his credibility
about the amount of pain he was experiencing after the
surgery do not negate the fact that the overwhelming
evidence summarized in the body of the decision establishes
that claimant did, as a conclusion of law, sustain an injury
to his lumbar spine on February 5, 1991, which arose out of
and in the course of employment with employer. Iowa Code
section 85.3(1); McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Central Telephone Co., 261
Iowa 352, 154 N.W.2d 128 (1967).
That claimant did sustain the burden of proof by a
preponderance of the evidence, as a conclusion of law, that
the injury of February 5, 1991 was the cause of permanent
impairment and permanent physical disability. 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).
That claimant has sustained a 15 percent industrial
disability to the body as a whole primarily based upon his
physical and functional impairment as determined by the
treating physician and claimant's evaluating physician as
well as other industrial disability factors. Iowa Code
section 85.34(2)(u). Christensen v. Hagen, Inc., vol. I,
no. 3, State of Iowa Industrial Commissioner Decisions 529
(App. Dec. March 26, 1985); Peterson v. Truck Haven Cafe,
Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner
Decisions 654, 658 (App. Dec. February 28, 1985).
That claimant did not sustain the burden of proof by
preponderance of the evidence that he is incapable of
obtaining employment in any well know branch of the labor
market. Furthermore, defendants did sustain the burden of
proof by preponderance of the evidence that claimant is
employable in the competitive labor market. Guyton v.
Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985).
That claimant has sustained the burden of proof by
preponderance of the evidence that defendants delayed the
commencement of permanent disability benefits without
Page 23
reasonable or probable cause or excuse and that claimant is
entitled to penalty benefits in the amount of 50 percent of
the amount of benefits that he should have received
commencing at the end of healing period. Iowa Code section
86.13.
ORDER
THEREFORE, IT IS ORDERED:
That defendants pay to claimant seventy-five (75) weeks
of permanent partial disability benefits based upon a
fifteen percent (15%) industrial disability to the body as a
whole at the rate of one hundred fourteen and 81/100 dollars
($114. 81) per week and in the total amount of eight
thousand six hundred ten and 75/100 dollars ($8,610.75)
commencing on August 3, 1991 as stipulated to by the
parties.
That defendants are entitled to a credit against this
award in the amount of six hundred twenty-eight and 08/100
dollars ($628.08) as stipulated to by the parties on the
hearing report.
That these benefits are to be paid in a lump sum.
That interest will accrue pursuant to Iowa Code section
85.30.
That defendants pay to claimant penalty benefits in the
amount of fifty-seven and 405/100 dollars ($57.405) for 50
weeks in the total amount of two thousand eight hundred
seventy and 25/100 dollars ($2,870.25) also commencing on
August 3, 1991.
That interest will be due on penalty benefits beginning
on the date of this decision.
That defendants are charged with the costs of this
action, including the cost of the attendance of the court
reporter at hearing and the transcript of hearing, pursuant
to rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and
86.40.
That defendants file claim activity reports as
requested by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of April, 1994.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. James M. Hood
Attorney at Law
Page 24
302 Union Arcade Bldg.
Davenport, IA 52801
Ms. Candy Pastrnak
Mr. Hector Lareau
Attorneys at Law
1600 Fourth Ave
PO Box 3700
Rock Island, IL 61201
1108.50, 1401, 1402.20, 1402.30,
2206,
1803, 3700, 4000.2, 4100
Filed April 25, 1994
Walter R. McManus
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
CHARLES ANDERSON,
Claimant,
vs.
File No. 980696
MIDWEST JANITORIAL SERVICES,
INC.
A R B I T R A T I O N
Employer,
D E C I S I O N
and
THE CINCINNATI INSURANCE
COMPANY
Insurance Carrier,
Defendants.
___________________________________________________________
1108.50, 1401, 1402.20, 1402.30, 2206
It was determined that claimant did sustain an injury
arising out of and in the course of employment when a floor
buffer forced him against a counter and aggravated his
preexisting degenerative disc disease and precipitated a
lumbar laminectomy at L5, S1.
Defendants impeached claimants credibility on a number
of collateral points, and impugned his motivation to work
because of his post-surgical unexplained pain behavior.
Nevertheless, defendants' evidence did not rise to the point
of discrediting the overwhelming evidence in favor of
injury.
1803
It was determined that claimant was entitled to little
more that his permanent impairment ratings of 10 percent and
14 percent and he was awarded 15 percent industrial
disability. Several conflicts of evidence were resolved.
Claimant's disability contentions were not supported by
medical evidence. Defendants' contentions were supported by
the medical evidence of the treating orthopedic surgeon, who
was preferred over the one-time evaluator.
Page 2
3700
Surveillance evidence rebutted, controverted and
contradicted claimant's testimony of subjective complaints
of disability.
4100
It was determined that claimant was not an odd-lot
employee.
4000.2
Claimant was awarded 50 percent penalty benefits for 50
weeks. Defendants' new on-the-job claim representative
failed to investigate the claim properly. Defendants had an
impairment rating of 10 percent from the authorized treating
physician which they did not serve on claimant, and they did
not pay even though they had no conflicting rating, and were
not seeking any. Defendants' idea that claimant's
credibility would negate injury was unrealistic.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ALBERT O. KING,
Claimant,
vs.
File Nos. 980837, 1031618
PIRELLI-ARMSTRONG TIRE CORP., 1045148, 1044727
1044728, 1044729
Employer,
A R B I T R A T I O N
and
D E C I S I O N
TRAVELERS INSURANCE
COMPANY,
and
SECOND INJURY FUND OF IOWA,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Albert O. King as the
result of alleged injuries to his feet occurring on October 22, 1991 in
file number 1031618; November 18, 1991 in file number 1044729; July 13,
1992 in file number 1044728; October 23, 1992 in file number 1044727;
and injuries to the upper extremities occurring on December 3, 1990 in
file number 980837. Claimant also alleged hearing loss occurring on
December 31, 1992 in file number 1045148. Claimant made a motion to
dismiss the hearing loss claim at the time of hearing. Claimant's
motion to dismiss is granted in file number 1045148.
The defendants denied liability for the foot injuries and multiple
issues are presented for determination. The defendant-employer
admitted liability for the bilateral hand injuries and the issue of
permanent disability is presented along with Second Injury Fund claims.
This case was heard and fully submitted at Des Moines, Iowa on February
13, 1995. The record in the proceeding consists of joint exhibits A
and B; testimony from Albert O. King and Joyce Kain. Claimant was
represented by Max Schott, Attorney at Law. The defendant-employer and
insurance carrier were represented by Terry Monson, Attorney at Law.
The Second Injury Fund of Iowa was represented by Shirley Steffe of the
Attorney General's Office.
ISSUES
The issues presented for determination are as follows:
1. Whether claimant sustained injuries to the feet arising out of and
in the course of employment with the employer on October 22, 1991,
November 18, 1991, July 13, 1992 and October 23, 1992;
2. Whether the foot injuries are a cause of permanent disability, the
nature and extent thereof;
3. Whether the foot injuries are a cause of temporary disability;
4. The extent of entitlement to permanent disability for the December
3, 1990 hand injuries;
5. The commencement date for permanent disability benefits;
6. Whether the injury claims of October 22, 1991 and November 18, 1991
are barred pursuant to Iowa Code sections 85.23 and 85.26;
7. Whether claimant is entitled to Second Injury Fund of Iowa
benefits; and
8. Whether claimant is permanently and totally disabled under the
odd-lot doctrine.
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:
Albert King began work for the employer on March 18, 1959. Claimant
was a production worker in a tire factory. Claimant's duties required
extensive repetitive use of the hands and constant standing and
walking. Claimant on December 3, 1990 sustained bilateral hand
injuries known as carpal tunnel syndrome. After surgical treatment
claimant was released to return to work June 10, 1991 by the treating
physician, Robert Jones, M.D. (Joint Exhibit A, page 104).
As a result of the bilateral carpal tunnel syndrome claimant incurred
permanent disability as evidenced by the impairment ratings offered.
Dr. Jones opined on December 7, 1992, that claimant sustained 5 percent
impairment of each upper extremity as a result of the work injury (Jt.
Ex. A, p. 108).
Martin Rosenfeld, D.O., Opined on August 17, 1992, that claimant
sustained 14 percent of the body as a whole as a result of the
bilateral carpal tunnel syndrome (Jt. Ex. A, p. 114). Dr. Rosenfeld
placed severe work restrictions on claimant due to a lack of strength.
Claimant was to avoid repetitive use of the hands, heavy lifting and
pressure on the surgery scars.
On September 12, 1994, Keith Riggins, M.D., opined that claimant
sustained 12 percent impairment to the body as a whole as a result of
the bilateral carpal tunnel syndrome. Dr. Riggins indicated that work
restrictions should be placed on claimant similar to those offered by
Dr. Rosenfeld (Jt. Ex. A, p. 122).
Claimant returned to work for the employer but continued to experience
difficulties with his hands as a result of the repetitive work.
Claimant went off work on or about October 22, 1991 due to problems
with his feet, and continued problems with his hands.
It is found that claimant's functional disability to the hands is
greater than indicated by the impairment. The severe work restrictions
and continuing difficulty has with endurance work when involved in
repetitive gripping indicates a functional disability of 25 percent to
each hand. This converts to 26 percent permanent disability to the
body as a whole using the Fourth Edition of the Guides to the
Evaluation of Permanent Impairment, American Medical Association.
Claimant sustained a cumulative trauma injury to his feet on October
22, 1991 caused by constant standing and walking at work. Claimant had
a preexisting congenital deformity of the feet commonly known as flat
feet. The work performed for the employer severely aggravated that
condition eventually resulting in multiple surgeries and leaving
claimant permanently and totally disabled. The final exposure to the
cumulative trauma from work occurred on or about October 22, 1991. On
that date it is found that claimant sustained bilateral simultaneous
injuries to his feet.
Claimant alleged that a second injury to the right foot occurred on
November 18, 1991. Claimant had surgery on that date for his right
foot. However, the last injurious exposure occurred on October 22,
1991. Therefore, the date of the subsequent surgery cannot be
considered as an injury.
Claimant alleged that on July 13, 1992 he sustained an injury to the
left foot. On that date claimant sustained a surgery to the left foot
as a result of the prior cumulative trauma aggravation of a preexisting
condition. Claimant's last injurious exposure occurred on October 22,
1991. Therefore, the July 13, 1992 date cannot be considered as a date
of injury.
Claimant alleged an injury on October 23, 1992 to the right foot.
Claimant had surgery on that particular date caused as a result of the
prior cumulative trauma injury incurred on October 22, 1991. The last
injurious exposure to the right foot occurred on October 22, 1991.
Therefore, the October 23, 1992 incident cannot be considered an
injury.
In summary, claimant sustained one injury to the feet occurring on
October 22, 1991, which was a bilateral cumulative trauma aggravation
of a preexisting condition. The subsequent injury dates of November
18, 1991, July 13, 1992 and October 23, 1992 are encompassed within the
first injury. Since no further exposure to cumulative trauma work
occurred after October 22, 1991, no further injuries can be found after
that date.
Claimant did not inform the employer of the potential work-related
injury within 90 days of October 22, 1991. Claimant was on notice
effective August 28, 1991, that work was a possible cause of his
bilateral foot pain (Jt. Ex. A, p. 9). Claimant asked the treating
doctor for a statement that the bilateral foot condition was
work-related on April 3, 1992 (Jt. Ex. A, p. 22 & 23). Claimant did
not give the employer notice of a potential claim for the injuries to
the feet within 90 days of April 3, 1992. Claimant finally gave the
employer notice of the alleged work-related nature concerning the foot
injuries on July 8, 1992 (Jt. Ex. A, p. 152).
It is found that claimant failed to inform the employer of a potential
workers' compensation claim related to his bilateral foot condition
within 90 days of the date of injury or within 90 days of having
knowledge that there was a potential workers' compensation claim.
With respect to the injury of December 3, 1990, it is found that
claimant reached maximum medical improvement on June 10, 1991, which is
date that he was released to return to work by the treating physician.
REASONING AND CONCLUSIONS OF LAW
The first issue is whether claimant sustained injuries to the feet
arising out of and in the course of employment on October 23, 1991,
November 18, 1991, July 13, 1992 and October 23, 1992.
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).
When the disability develops gradually over a period of time, the
"cumulative injury rule" applies. For time limitation purposes, the
compensable injury is held to occur when because of pain or physical
disability, the claimant can no longer work. McKeever Custom Cabinets
v. Smith, 379 N.W.2d 368 (Iowa 1985).
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 held that claimant sustained a bilateral aggravation injury to a
preexisting condition on October 23, 1991 as a result of cumulative
trauma sustained when working for the employer. It is held that
claimant failed to establish cumulative trauma injuries to the feet on
November 18, 1991, July 13, 1992 and October 23, 1992 because the last
injurious exposure was incurred on October 22, 1991.
The next issue is whether the claim for the injury of October 22, 1991
is barred pursuant to the notice provisions of Iowa Code section 85.23.
Section 85.23 requires an employee to give notice of the occurrence of
an injury to the employer within 90 days from the date of the
occurrence, unless the employer has actual knowledge of the occurrence
of the injury.
The purpose of the 90-day notice or actual knowledge requirement is to
give the employer an opportunity to timely investigate the facts
surrounding the injury. The actual knowledge alternative to notice is
met when the employer, as a reasonably conscientious manager, is
alerted to the possibility of a potential compensation claim through
information which makes the employer aware that the injury occurred and
that it may be work related. Dillinger v. City of Sioux City, 368
N.W.2d 176 (Iowa 1985); Robinson v. Dep't of Transp., 296 N.W.2d 809
(Iowa 1980). The time period for giving notice does not begin to run
until the claimant as a reasonable person, should recognize the nature,
seriousness and probable compensable character of the injury. The
reasonableness of claimant's conduct is to be judged in light of
claimant's education and intelligence. Claimant must know enough about
the condition or incident to realize that it is both serious and work
connected. Positive medical information is unnecessary if information
from any source gives notice of the condition's probable
compensability. Robinson, 296 N.W.2d at 812.
Failure to give notice is an affirmative defense which the employer
must prove by a preponderance of the evidence. DeLong v. Highway
Comm'n, 229 Iowa 700, 295 N.W. 91 (1940).
It is held that claimant failed to give the employer notice within 90
days of the date when claimant discovered that his foot injuries may be
work-related. Therefore, the claim of October 23, 1991 is barred under
Iowa Code section 85.23.
The next issue concerns the extent of entitlement to permanent
disability for the December 3, 1990 bilateral hand injuries.
Benefits for permanent partial disability of two members caused by a
single accident is a scheduled benefit under section 85.34(2)(s); the
degree of disability must be computed on a functional basis with a
maximum benefit entitlement of 500 weeks. Simbro v. Delong's
Sportswear, 332 N.W.2d 886 (Iowa 1983).
It is held that claimant sustained bilateral simultaneous injuries and
therefore must be compensated under a 500-week schedule pursuant to
Iowa Code section 85.34(2)(s). It is further held that claimant
sustained 26 percent permanent functional disability to the body as a
whole as a result of the December 3, 1990 work injuries. The severe
work restrictions imposed by Dr. Rosenfeld and Dr. Riggins indicate
significant functional disability above that indicated by the
impairment ratings.
The commencement date is held to be June 10, 1991 as that is the date
claimant was released to return to work for the December 3, 1990 hand
injuries. The next injury concerns claimant's entitlement to Second
Injury Fund benefits.
Section 85.64 governs Second Injury Fund liability. Before liability
of the Fund is triggered, three requirements must be met. First, the
employee must have lost or lost the use of a hand, arm, foot, leg or
eye. Second, the employee must sustain a loss or loss of use of
another specified member or organ through a compensable injury. Third,
permanent disability must exist as to both the initial injury and the
second injury.
The Second Injury Fund Act exists to encourage the hiring of
handicapped persons by making a current employer responsible only for
the amount of disability related to an injury occurring while that
employer employed the handicapped individual as if the individual had
had no preexisting disability. See Anderson v. Second Injury Fund, 262
N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers'
Compensation-Law and Practice, section 17-1.
The Fund is responsible for the industrial disability present after the
second injury that exceeds the disability attributable to the first and
second injuries. Section 85.64. Second Injury Fund of Iowa v. Braden,
459 N.W.2d 467 (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d
335 (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300
(Iowa 1970).
Since claimant has failed to establish a compensable second injury,
benefits are denied pursuant to Iowa Code section 85.64.
ORDER
IT IS, THEREFORE, ORDERED:
Defendants Pirelli-Armstrong Tire Corp., and Travelers Insurance
Company are to pay claimant one hundred thirty (130) weeks of permanent
partial disability benefits at the rate of three hundred thirty and
57/100 dollars ($330.57) per week commencing June 10, 1991 in file
number 980837.
It is further ordered that file number 1045148 is dismissed.
It is further ordered that claimant shall take nothing from file
numbers 1031618, 1044729, 1044728 and 1044727.
It is further ordered that defendants shall receive credit for benefits
previously paid.
It is further ordered that all accrued benefits are to be paid in a
lump sum.
It is further ordered that interest will accrue pursuant to Iowa Code
section 85.30.
It is further ordered that costs of this action are assessed against
defendants Pirelli-Armstrong Tire Corp., and Travelers Insurance
Company pursuant to rule 343 IAC 4.33.
It is further ordered that said defendants file claim activity reports
as requested by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of February, 1995.
______________________________
MARLON D. MORMANN
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Max Schott
Attorney at Law
6959 University Ave.
Des Moines, IA 50311-1540
Mr. Terry L. Monson
Attorney at Law
100 Court Ave., Ste 600
Des Moines, IA 50309
Ms. Shirley A. Steffe
Assistant Attorney General
Dept. of Justice - Tort Claims
Hoover State Office Bldg.
Des Moines, IA 50319
5-1808, 5-2800
Filed February 27, 1995
Marlon D. Mormann
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ALBERT O. KING,
Claimant,
vs.
File Nos. 980837, 1031618
PIRELLI-ARMSTRONG TIRE CORP., 1045148, 1044727
1044728, 1044729
Employer,
A R B I T R A T I O N
and
D E C I S I O N
TRAVELERS INSURANCE
COMPANY,
and
SECOND INJURY FUND OF IOWA,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1808
Claimant was granted 26 percent permanent disability to the body as a
whole as a result of a bilateral simultaneous hand injury known as
carpal tunnel syndrome. Claimant had severe work restrictions which
indicted a higher permanent functional disability.
5-2800
Claimant had also incurred bilateral simultaneous aggravation injuries
to the feet which rendered claimant permanently and totally disabled.
The injuries to the feet were held barred by the notice provisions of
Iowa Code section 85.23. The claims for injuries to the feet were
dismissed.