1108.10, 1108.20, 2202 2204, 2206 Filed May 17, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT F. DUNCAN, Claimant, vs. File No. 768954 THORP ELECTRIC, A R B I T R A T I O N Employer D E C I S I O N and UNION INSURANCE COMPANY, Insurance Carrier, Defendants. 1108.10, 1108.20, 2202, 2204, 2206 Claimant was afflicted with preexisting coronary artery disease. He worked in a setting which provided a relatively high level of stress, but a level which was not out of the ordinary for the stresses commonly endured by all employees. Claimant engaged in an instance of unusually strenuous physical exertion, but the coronary event which led to his heart attack was already underway prior to the time of that exertion. Claimant's claim was denied. BEFORE THE IOWA INDUSTRIAL COMMISSIONER KEVIN R. MEYER, Claimant, vs. File No. 768965 BORK TRANSPORT, A R B I T R A T I O N Employer, D E C I S I O N and GREAT WEST CASUALTY COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant, Kevin R. Meyer, against defendant employer, Bork Transport, and defendant insurance carrier, Great West Casualty Company (the caption appears to be in error as "Great Western Casualty Company") to recover benefits under the Iowa Workers' Compensation Act as the result of an injury which allegedly occurred July 3, 1984. This matter came on for hearing before the undersigned deputy industrial commissioner on October 28, 1988 in Des Moines, Iowa, and was considered fully submitted on that date. Claimant appeared pro se. Defendants appeared by attorney Stephen W. Spencer. Because claimant failed to comply with the Hearing Assignment Order by exchanging a list of all witnesses to be called at the hearing and a list of all proposed exhibits at least fifteen days prior to the hearing date, he was barred from presenting testimonial or documentary evidence. The only evidence submitted consisted of defendants' exhibits 1, 2 and 3. ISSUES Pursuant to the Hearing Assignment Order (claimant failed to take steps to prepare a pre-hearing report), the issues that remain for determination include whether claimant received an injury which arose out of and in the course of employment; whether there is a causal relationship between the alleged injury and disability; whether claimant is entitled to disability benefits; whether claimant is entitled to medical benefits; rate; and, taxation of costs. REVIEW OF EVIDENCE Claimant's petition alleged that he injured himself on July 3, 1984 while driving an oil truck. He alleged that he slipped and fell from oil on his boot. As claimant was barred from presenting evidence, no evidence in the record supports those allegations. MEYER V. BORK TRANSPORT PAGE 2 Defendants' exhibits 1, 2 and 3 indicate that claimant was seen by J. B. Neiweem, M.D., and Peter D. Wirtz, M.D. Dr. Neiweem's x-ray report of September 4, 1984 indicated that x-rays demonstrated no evidence of fracture around claimant's ankle. His letter of January 19, 1985 indicated that his impression was that claimant sustained a mild strain to the right ankle, and that he would have no permanent disability. Dr. Wirtz indicated in his report of January 7, 1987, that claimant had a healed right ankle sprain which had left him with no functional or anatomic impairment. APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on July 3, 1984 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 injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist. 246 Iowa 402, 68 N.W.2d 63 (1955). The claimant has the burden of proving by a preponderance of the evidence that the injury of July 3, 1984 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). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa MEYER V. BORK TRANSPORT PAGE 3 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N. W.2d 128 (1967). There is no evidence in the record supporting the allegation that claimant suffered an injury on July 3, 1984, that the injury arose out of or in the course of his employment, that the claimant suffered disability as a result of the alleged injury, or that the alleged injury is causally connected to any alleged disability. The only evidence in the record shows that claimant has suffered no permanent disability. FINDINGS OF FACT Therefore, based on the evidence presented, the following ultimate facts are found: 1. Claimant has failed to establish that he suffered a work injury on July 3, 1984. 2. Claimant has failed to establish any period of inability to work resulting from his alleged accident. 3. Claimant has failed to establish that his alleged injury was related to his employment. 4. Claimant has failed to establish any permanent disability resulting from his alleged injury. 5. Claimant has failed to show any causal connection between his employment and any injury or resulting disability. 6. The record affirmatively shows that claimant suffered no permanent disability from his alleged injury. CONCLUSIONS OF LAW Wherefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant has failed to establish that he suffered an injury on July 3, 1984. 2. Claimant has failed to establish that his alleged injury arose out of and in the course of his employment. 3. Claimant has failed to establish any causal connection between the alleged injury and alleged disability. 4. Claimant has failed to establish either temporary or permanent disability resulting from his alleged injury. 5. Claimant has failed to establish medical expenses caused by his alleged injury. 6. Claimant has failed to present evidence establishing his rate of compensation in the event that such were to be awarded. ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing from this proceeding. MEYER V. BORK TRANSPORT PAGE 4 Costs of this action are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 1st day of November, 1988. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Kevin R. Meyer 7807 Kelly Court Erie, Illinois 61250 REGULAR AND CERTIFIED MAIL Mr. Stephen W. Spencer Attorney at Law Suite 300, Fleming Building P.O. Box 9130 Des Moines, Iowa 50306-9130 1402 Filed November 1, 1988 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER KEVIN R. MEYER, Claimant, vs. File No. 768965 BORK TRANSPORT, A R B I T R A T I O N Employer, D E C I S I O N and GREAT WEST CASUALTY COMPANY, Insurance Carrier, Defendants. 1402 Pro se claimant was barred from presenting evidence for failure to submit witness and exhibits lists as per hearing assignment order. Therefore, his burden of proof could not be met on any issue. 2402; 3202; 3203 Filed January 7, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : ROBIN D. BOHL, : : Claimant, : : vs. : : File Nos. 769025 ARMOUR FOOD COMPANY, : 853390 : 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 THE HARTFORD, : : Insurance Carriers, : : and : : SECOND INJURY FUND, : : Defendants. : ____________________________________________________________ 2402; 3203 Section 85.26 limitations defense held applicable to Second Injury Fund claims. 3202 Claimant underwent knee surgery in 1979, causing impairment but minimal industrial disability. He alleged right arm injuries of 1984 and 1987, seeking Second Injury Fund benefits in both cases. Each case was settled between claimant, employer and defendant, leaving only Second Injury Fund claims. The 1984 case was barred by limitations. The 1984 injury was found to be due to a traumatic incident, but the 1987 injury was found to be a separate cumulative injury to the same member (which was predisposed to injury because of the 1984 trauma). Claimant twice underwent surgery to reposition the ulnar nerve. He was advised to discontinue work involving heavy lifting or forceful use of the right forearm. Claimant was a certified carpenter and, at the time of injury, worked on a loading dock. He was 38 years old at the time of hearing and a suitable candidate for retraining, but had sustained a diminution of his earning capacity due to the arm injury. He was awarded 30 percent industrial disability, but Second Injury Fund was given "credit" for the impairment to the left leg and all impairment to the right arm, due to both the 1984 and 1987 injuries. All of his industrial disability relating to the arm was attributable to the 1987 injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LU ELLEN HUSS, Claimant, VS. File No. 769042 BOLTON & HAY, INC., A P P E A L Employer, D E C I S I 0 N and GREAT AMERICAN INSURANCE COMPANIES, Insurance Carrier, Defendants. STATEMENT OF THE CASE Defendants appeal from a commutation decision granting full commutation of death benefits to claimant as decedent's spouse. The record on appeal consists of the transcript of the commutation proceeding and claimant's exhibits 1, 2 and 3. Both parties have filed briefs on appeal. ISSUES Defendants state the following issues on appeal: 1. Whether the commutation is in claimant's best interests. (Defendants' appeal brief issues I and II are combined herein.) 2. The proper amount of benefits to be commuted. REVIEW OF THE EVIDENCE Review of the record indicates the summary of evidence in the commutation decision is adequate and will not be reiterated herein. APPLICABLE LAW The commutation decision cites law appropriate to the issues herein. ANALYSIS Claimant has requested full commutation of weekly death benefits. As she is claiming death benefits as the widow of a deceased worker, the requirement of a determinable period during HUSS V. BOLTON & HAY, INC. Page 2 which compensation is payable is met. Claimant is presently 69 years old. She is a retired schoolteacher with a college education, although she lacks a degree. She has no dependents. She is presently financially stable, owning a debt-free home, as well as over $57,000 in interest-bearing savings. Her income, which is based on workers' compensation, social security and the earned interest, is approximately $2,279 per month. Her expenses are $1,895 per month. She owns a $15,000 car, which has a debt against it of only $3,000. Claimant followed financial advice from her son-in-law, Robert Van Dyke, in borrowing the amount rather than cashing in a certificate of deposit that earned a higher rate of interest than she would pay on the borrowed money. Claimant stated she also consults her sons on financial matters and has two bankers who can give her advice. Her main concern is catastrophic illness and the need for nursing home care. She desires to have the commuted funds available in case of either eventuality. Both of her parents died of cancer. However, she does have both Medicare and a Medicare supplement health insurance policy to meet the expenses of an illness. Both she and Robert Van Dyke stressed that flexibility and availability of the funds were of primary importance to her. Although a commutation request could be made once either or both concerns actually arose, she viewed the delay in court proceedings to obtain a commutation as detrimental. She has no definite plan for the proceeds of a commutation if it is granted. Options she is considering include investing in a second home in Des Moines to be nearer her family, doctor and dentist; investing in an annuity; and providing for her grandchildren's education. She plans to invest the commutation, if it is granted, in a certificate of deposit until she can decide which option, or combination of options, to pursue. She has several persons she can, and does, rely upon for financial advice. Much of the testimony centered on the annuity option. This option was recommended to her by her son-in-law, Robert Van Dyke, an insurance and investment counselor. It was pointed out by defendants that claimant's income from an annuity and her increased tax liability for annuity payments would result in $140 less spendable income to her each month. Nevertheless, Robert Van Dyke testified that he felt this disadvantage was more than offset by the financial advantage of flexibility and availability. Claimant also stated a willingness to suffer a reduction in income to have the commuted funds available to her. It was also determined that the type of annuity recommended by Van Dyke was a 10-year period certain annuity, as opposed to a life-only annuity. Under the former, claimant would receive monthly payments, but if she was to die before the term of the annuity expired, her heirs would then receive the remainder of her contributions. Under the latter plan, all benefits would cease upon death. It was determined that the income difference to claimant between the two plans was only $4 per month. There is a probable early surrender charge of ten percent the first year, decreasing by one percent each year thereafter, should HUSS V. BOLTON & HAY, INC. Page 3 claimant need access to the funds in an annuity for an emergency. Section 85.45 states that a commutation of benefits will not be granted unless commutation is in the claimant's best interests. In applying the relevant factors, claimant's personal, family and financial circumstances and the reasonableness of the plan for the commuted funds are to be considered. Claimant's age is 69. She is well educated and of sound mind. Her health is good. Her family is grown, she lives alone and she has no dependents. Her financial condition is sound, with a steady source of income which will be lessened under her plan. As to the reasonableness of claimant's plan for the commuted funds, the record shows that her plans are at present speculative and conjectural. She states her plan is indefinite, but will be decided upon after she receives the funds. Her tentative plans include a fund for the education of her grandchildren. However, such a use of commuted funds is not for her direct benefit and not an intended purpose for workers' compensation benefits. A tentative plan is to purchase a house but the availability and price is mere speculation. Another contemplated use of the funds would be an investment in an annuity. Yet the record clearly shows this will result in a loss of income to claimant and an increased tax burden. The stated reason for requesting commutation, the need to meet the expenses of catastrophic illness or nursing home costs, is speculative. Claimant is presently in good health, and has both Medicare and a Medicare supplement health insurance policy to meet the costs of illness. She has no immediate plans or need to utilize a nursing home. If an illness should develop, the receipt of weekly workers' compensation benefits will provide protected income to claimant and a means of meeting those bills. Under both Diamond v. Parsons Co., 256 Iowa 915, 129 N.W.2d 608 (1964) and Dameron v. Neumann Bros., Inc., 339 N.W.2d 160 (Iowa 1983), both cited in the deputy's commutation decision, the above factors are to be used in a "best interest balancing test," with the claimant's preference and the benefits of commutation weighed against the potential detriments of commutation. Since claimant's plans for the commuted funds are, at this point, speculative and conjectural at best, it is impossible to make a determination that her plan is in her best interests. In addition, some of her contemplated uses of the commuted funds are not in her best interests or for her benefit. Therefore, claimant has failed to prove that a commutation of her benefits should occur. FINDINGS OF FACT 1. Claimant's husband received an injury on July 9, 1984, which arose out of and in the course of his employment and which caused his death. HUSS V. BOLTON & HAY, INC. Page 4 2. Claimant was born on October 18, 1918. 3. Claimant was in good physical and mental health at the time of the hearing. 4. Claimant's level of education includes college-level courses, as well as 40 years of teaching experience. 5. Claimant has a history of cancer in her family. 6. Claimant has no dependents. 7. Claimant has assets which include a home valued at $95,000 without encumbrance and $57,000 in savings. 8. Claimant's present income exceeds her expenses. 9. Claimant has sought and followed financial advice in the past. 10. Claimant's plans for any commuted funds are indefinite, but tentatively contemplate investment in another house, an annuity or an education fund for her grandchildren. 11. Claimant's tentative plan to utilize a portion of the commuted funds for an educational fund for her grandchildren is not in her best interests and is contrary to the purpose of workers' compensation benefits. 12. Claimant's plans for the commuted funds are speculative and conjectural. 13. In the event of a catastrophic illness, the continuation of weekly workers' compensation benefits would better serve claimant's needs than a commutation. CONCLUSION OF LAW Claimant has failed to prove that a full commutation of workers' compensation death benefits is in her best interests. WHEREFORE, the decision of the deputy is reversed. ORDER THEREFORE, it is ordered: That claimant's application for full commutation is denied. That each party pay their own costs in the hearing proceeding and defendants shall pay the costs of the appeal including the transcription of the hearing proceeding. Signed and filed this 31st day of December, 1987. HUSS V. BOLTON & HAY, INC. Page 5 DAVID E.LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. James R. Van Dyke Attorney at Law 225 East Seventh Street Box 486 Carroll, Iowa 51401 Mr. David Shinkle Mr. Jack W. Rogers Attorneys at Law 1040 Des Moines Building Des Moines, Iowa 50309 3303.10 Filed December 31, 1987 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER LU ELLEN HUSS, Claimant, VS. File No. 769042 BOLTON & HAY, INC., A P P E A L Employer, D E C I S I 0 N and GREAT AMERICAN INSURANCE COMPANIES, Insurance Carrier, Defendants. 3303.10 Full commutation denied where claimant's plans for commuted funds were indefinite, speculative and conjectural; and where one of contemplated uses was not for her benefit (education fund for grandchildren). BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT RIENHARDT, Claimant, File No. 769079 vs. JOHN MORRELL & CO. A R B I T R A T I O N Employer, D E C I S I O N Self-Insured Defendant. INTRODUCTION This is a proceeding in arbitration brought by Robert Rienhardt, claimant, against John Morrell & Co., employer and self-insured defendant for benefits as the result of an injury which occurred on September 7, 1983. A hearing was held in Storm Lake, Iowa on September 1, 1987 and the case was fully submitted at the close of the hearing. The record consists of the testimony of Robert Rienhardt (claimant), Paula Rienhardt (claimant's wife), James Leibfried (co-employee), Dennis L. Howrey (personnel manager), Claimant's Exhibits 1 through 7 and Defendant's Exhibit A. Both attorneys submitted good briefs. STIPULATIONS The parties stipulated to the following matters: That an employer-employee relationship existed between claimant and employer at the time of the injury; That claimant sustained an injury on September 7, 1983, which arose out of and in the course of employment with employer; That the injury was the cause of both temporary and permanent disability; That claimant's entitlement to temporary disability benefits has already been paid and is not an issue in this case at this time; That the type of permanent disability is scheduled member disability to both the right and left upper extremities; That the commencement date for permanent partial disability benefits is March 24, 1984; That the weekly rate of compensation, in the event of an award, is $156.99 per week; That the affirmative defenses of Iowa Code sections 85.23 and 85.26 shown on the hearing assignment have been waived by RIENHARDT V. JOHN MORRELL & CO. PAGE 2 defendants; That medical benefits are not an issue in this case at this time; That defendants make no claim for credits for benefits paid prior to hearing either as employee nonoccupational group health plan benefits or as workers' compensation benefits; and, That there are no bifurcated claims. ISSUE The parties presented only one issue for determination at the time of the hearing. Whether claimant is entitled to permanent partial disability benefits, and if so, what is the extent of his entitlement. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered. The following is a summary of the pertinent evidence. Claimant first worked for employer,for three weeks in 1981. His preemployment physical examination on March 21, 1981, showed no abnormalities of his extremities (Exhibit 1). Claimant started to work again for employer on September 1, 1983. He made boxes for one and one-half days. Then he put hot hogs in the cooler for one and one-half days. On the fourth day he was assigned to pull leaf lard. Pulling leaf lard consists of manually pulling the fat off of the ribs on the inside of the hog with your fingers and hands as the carcass comes by on an assembly line. It is hard work and it is fast work. James Leibfried testified that it is strenuous work. He added that it is more difficult for a tall person like claimant, because a tall person has to stoop to reach inside the hog. Leibfried further testified, that normally there is a break-in period during which three or four employees pull leaf lard in order to give the new person a chance to learn while being assisted by three other employees. Claimant testified that he was assigned to pull leaf lard with only one other employee. The other employee was pulled off the line to do another job and claimant ended up doing this job all by himself. Claimant testified that on the very first day that he pulled leaf lard, his hands went numb. On the second day, he could not straighten his arms. These days were his fourth and fifth days on the job. He pulled leaf lard for three or four more days. Claimant reported his problems to the plant nurse and she sent him to see Robert D. Hranac, M.D., the company doctor. This doctor also happened to be claimant's personal physician. Claimant next saw Thomas M. Wilson, M.D., a nerve specialist in Minneapolis, Minnesota, who performed an electromyographic test. After that claimant was sent to see R. L. Linsheid, M.D., at the Mayo Clinic. Claimant then saw Ronald O. Wyatt, M.D., an orthopedic surgeon in Sioux Falls, South Dakota, who performed carpal tunnel surgery on his right hand on April 6, 1983 and on his left hand on April 20, 1983. Claimant also saw William J. Moreau, D.C., briefly. RIENHARDT V. JOHN MORRELL & CO. PAGE 3 There is no medical report, medical information or deposition from Dr. Hranac placed in evidence by either party. There is an electromyography report from Dr. Wilson dated September 21, 1983. Dr. Wilson concluded as follows: INTERPRETATION: Although Mr. Rienhardt's symptoms are apparently of rather brief duration, the severity of the symptoms and of the electrical abnormalities in this young man warrant surgical treatment for his carpal tunnel syndromes. (Ex. 5) On October 21, 1983, Dr. Linsheid said that he saw claimant on October 19, 1983. He diagnosed bilateral carpal tunnel syndrome and concurred that claimant probably required surgical decompression of the nerve (Ex. 6). Dr. Moreau said that he saw claimant on December 7, 1983, for bilateral carpal tunnel syndrome which originated while pulling leaf lard on September 7, 1983. Dr. Moreau agreed that surgical decompression was needed (Ex. 4). Dr. Wyatt first saw claimant on April 3, 1984. He stated that claimant began having trouble in both hands about seven months ago (Ex. 3, page 2). Dr. Wyatt released the right hand on April 6, 1984. The operative report shows that the incision was in the palm of the right hand (Ex. A, deposition ex. 1, p. 7). The left hand was released on April 20, 1984. The operative report verifies that the incision for the left hand was made in the palm of the hand (Ex. 3, p. 3; Ex. A, dep. ex. 1, p. 5). Dr. Wyatt rated claimant's impairment as follows on April 16, 1987: "Under your state compensation laws, I would give this patient a 5% permanent physical impairment and loss of physical function to the right and to the left upper extremity." (Ex. A, dep. ex. 1, p. 8) On April 13, 1987, there was some confusion between Dr. Wyatt and defendant's counsel as to whether there was no impairment or an impairment of one percent of the body as a whole (Ex. A, dep. ex. 1, p. 9). On April 16, 1987, the above five percent rating to each upper extremity was apparently given to clear up this confusion (Ex. A, dep. ex. 1, p. 8). Dr. Wyatt did not explain what written medical guides, if any, that he used to arrive at these percentages. Nor did Dr. Wyatt explain what physical factors he used in order to arrive at these percentages. In his deposition dated August 18, 1987, Dr. Wyatt testified that he is an orthopedic surgeon (Ex. A, p. 4). Dr. Wyatt identified his curriculum vitae which shows that he has been a board certified orthopedic surgeon since September of 1974 and also shows that he is a clinical associate professor in the surgery department at the University of South Dakota Medical School (Ex. A, dep. ex. 1, p. 1). Dr. Wyatt reported that claimant had bilateral carpal tunnel syndrome (Ex. A, p. 5). In his deposition he reiterated his impairment rating in these words: Q. And would you relate to the Industrial Commissioner what physical permanent functional impairment this RIENHARDT V. JOHN MORRELL & CO. PAGE 4 individual Robert Rienhardt sustained to both the left and to the right? A. I gave the patient a five percent permanent physicaL impairment loss of function to his right and to his left upper extremity. (Ex. A, pp. 6 & 9) In his deposition, Dr. Wyatt was not asked whether he used a rating guide, and if so, what guide he used. Dr. Wyatt was not asked to explain how or why he arrived at the five percent rating (Ex. A, pp. 1-12). Claimant saw Dr. Wyatt on May 1, 1984, to remove the stitches from his left hand (Ex. A, dep. ex. 1, p. 2). Claimant saw Dr. Wyatt one more time on May 22, 1984, at which time he was released to return to work (Ex. A, dep. ex. 1, p. 3). Claimant testified that Dr. Wyatt did not conduct. any tests to determine his grip strength, sensory pain or his range of motion on either of these two occasions. C. B. Carignan, Jr., M.D., a family practice physician in Okoboji, Iowa, performed an independent medical examination and evaluation at the request of claimant on March 13, 1987. Dr. Carignan testified as to his physical findings in these words: Q. Doctor, going to Robert Reinhardt [sic], would you relate to the Industrial Commissioner what you obtained from him in the history and what you found as far as his bilateral carpal tunnel condition is concerned. A. Well, I first saw him on March 13 of this year. At that time he stated that he had had a bilateral carpal tunnel operation by Dr. Wyatt in Sioux Falls. He came in to get his current situation evaluated. At that time we examined him and found that the main problem remaining was some numbness in the hands. We also found that the patient was right-handed. He had well healed surgical scars from his previous surgery. He was complaining of bothersome numbness in his hands. We did light touch, pin wheel, sharp touch, pressure, and so forth and range of motion studies on the gentleman and found that he had completely normal range of motion and strength. However, there was definite paresthesia of both hands. (Ex. 7, pp. 6 & 7) Dr. Carignan explained his permanent functional impairment rating as follows: Well, due to the paresthesia, he had a 15 percent impairment of one upper extremity and 10 percent of the left upper extremity, 15 percent of the right, which is equilavent [sic] to a 9 percent whole body impairment of the right upper extremity and 6 percent whole body impairment of the left, equivalent to 15 percent of the whole person. Actually the findings were very similar both on the right and left hand, with paresthesia in the medial little finger, the ring, middle, and the medial aspect of the index finger, and of the thumb on both hands, the difference of rating being that the RIENHARDT V. JOHN MORRELL & CO. PAGE 5 dominant hand is rated at a higher disability than the nondominant hand. So the result was that he had a 15 percent impairment of the right hand and a 10 percent impairment of the left, upper extremity, that is -- (Ex. 7, pp. 8 & 9) Dr. Carignan said that he used the Guides to Evaluation of Permanent Impairment, second edition, published by the American Medical Association. However, he did not further explain how or what factors caused him to arrive at these percentages (Ex. 7, p. 9). Dr. Carignan said that an impairment rating can be given at any time, but he preferred to wait until 18 months after surgery (Ex. 7, pp. 9 & 10). Claimant related to Dr. Carignan that in his computer training course he had difficulty handling small parts, holding the pencil, writing and grasping a hammer because of the numbness in his hands (Ex. 7, p. 11). Dr. Carignan believed that removing leaf lard could cause carpal tunnel syndrome to develop in a matter of two or three days (Ex. 7, p. 13). Dr. Carignan said that previously he had performed carpal tunnel surgeries but had quit performing surgery approximately five years ago (Ex. 7, pp. 14 & 15). Defendant's counsel looked at Dr. Carignan's notes and noticed that Dr. Carignan had changed his rating. The following exchange then occurred and Dr. Carignan's testimony concluded as follows: Q. Doctor, in looking at your notes, it looks like those numbers were changed on that rating. A. Yeah, they were. I misread the table is what happened so they went lower. I had actually rated him a little higher, and then I got to looking at the table and I was on the wrong line so I wrote over them again, got the right numbers down. I don't remember whether I had different glasses on or what, but I remember that. So actually it would have been higher except I took another look and it was less. Q. And so then you changed the numbers. A. Right, got it right. Q. Looks like you indicated in your notes here that the individual had a mild -- and you underlined mild -- superficial sensory impairment. A. Thats right. He still has deep touch. What he's really lost is discrimination. his light touch mainly is what's impaired. (Ex. 7, pp. 17 & 18) Dr. Carignan gave a written report which is essentially the same as his testimony (Ex. 2). Dr. Carignan more particularly described claimant's impairment problem in the following language: Q. Doctor, did this patient relate to you what he is doing at the present time? RIENHARDT V. JOHN MORRELL & CO. PAGE 6 A. I'm not sure that he did. I think he said he was in training to be an electronics repairman at Southwest Minn -- Tech up at Jackson, I believe. Q. Okay. So he's attempting to rehabilitate himself as far as you know; is that correct? A. That's correct. Q. And did he relate to you specifically what was happening to him with his hands as far as doing fine work in electrical repair situations? A. Well, I didn't ask it that way. I said, "How does this actually bother you now" and he said, well, because of the numbness, he has difficulty handling small parts, which, of course, he must do in the course of repairing computers and so forth, little screws and little bolts and things, and he said it was terribly frustrating. He had trouble telling whether or not he had ahold of the thing and when he tried to start it into the hole and so forth that it caused a great deal of problems and frustration. At his training he also noticed some problems holding a pencil for very long, writing. His hands would get numb and held tend to have difficulty knowing whether or not he had ahold of the pencil. RIENHARDT V. JOHN MORRELL & CO. PAGE 7 Q. Okay. A. He noticed some problems with things like, oh, grasping a hammer or something like that. Held have to look at his hand to make sure that he had ahold of it right. Q. Okay. Doctor, would these problems in your opinion, based on reasonable medical certainty, be problems which this patient would permanently have to face for the remainder of his life? A. At this stage of the game, probably. (Ex. 7, pp. 10 & 11) Claimant testified that he returned to work light duty doing light cleaning and maintenance jobs. Eventually, he performed other jobs such as whipping hogs, the garbage man job and a scoop shovel job until the plant closed in April of 1985. Claimant testified that he was never able to do the leaf lard job again. When the plant closed, claimant chose to terminate his employment and take severance pay rather than to move to Sioux Falls, South Dakota and continue his employment with employer. When claimant could not find employment in other packing houses and his unemployment compensation ran out, he then consulted vocational rehabilitation services and took tests. The vocational rehabilitation people recommended and claimant agreed to become a student at the Southwest Minnesota Technical Institute. He has attended one year and plans to graduate in another year on July 31, 1988. His grade point average is 3.8. His family has been living on food stamps and welfare. Claimant stated that he uses his hands in his computer training. Some days his hands work okay. Other days they are puffy and swollen and he has trouble handling small parts. Both hands have numbness and pain off and on. Prior to this injury, claimant could bowl, play softball, fish, bow hunt, garden, shovel snow, paint, hammer and do farm labor work. Now he can bowl only about one-half of a game. Then he no longer has the strength to hold the ball. His ability to write and type is diminished. If he tries to hammer, his hand goes numb. His sleep is disturbed because he has difficulty getting his hands comfortable. Claimant stated that he gardens a little and can mow the yard. Activity causes his small fingers and ring fingers to go numb. His middle fingers are only affected a slight amount. His index fingers are not affected at all. Claimant's wife, Paula Rienhardt, testified that when he tries to bowl, he drops the ball, when he tries to fish, his thumb cannot work the lever and he has trouble pulling the string to bow hunt. When he tries to bale hay or do farm work he gets pain in his hands. The numbness in his hands wakes him up at night when he is sleeping. His hands are puffy and stiff. He cannot open a fruit jar. Sometimes he drops the coffee cup he is holding when his thumb gives away. He cannot do hard physical labor like hammering, putting on shingles, baling hay or shoveling snow. When he attempts to do these things he gets pain in his hands and they go numb. Jim Leibfried corroborated claimant's testimony that the RIENHARDT V. JOHN MORRELL & CO. PAGE 8 leaf lard job is very hard to do and that claimant has demonstrated difficulty bowling, fishing and bow hunting. Dennis Howrey, personnel manager, testified that claimant could have transferred to Sioux Falls, South Dakota but chose instead to terminate his employment and take severance pay. Claimant returned to work after the surgery and got along well on the job until the plant closed in April of 1985. APPLICABLE LAW AND ANALYSIS The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Both Dr. Wyatt and Dr. Carignan rated the right and left upper extremity. The parties stipulated that claimant sustained a scheduled member injury to the right and left upper extremity. However, Iowa Code section 85.34(2)(a) through (t) does not show the upper extremity as one of the specifically designated scheduled members. Subsection (1) provides 190 weeks for the loss of a hand and subsection (m) provides 250 weeks for the loss of an arm. Both of claimants surgeries were in the hand. Claimant's complaints of pain and numbness were in his hands. Physicians frequently issue impairment ratings in terms of the upper extremity even though the physical ailment, the medical abnormality, the derangement or impairment is in the hand. VanBlarcom v. FDL Foods, Inc., file no. 796651 (May 16, 1988). Even if claimant's impairment had extended to the wrist, the wrist is still considered to be a part of the hand. Elam v. Midland Manufacturing, II Iowa Industrial Commissioner Report, 141 (Appeal Decision 1981). In this case, claimant Dr. Wyatt, Dr. Carignan and claimant's wife specifically talked about claimant's hands. Therefore, it is determined that claimant's disability is to the hands. When the conversion charts found at table nine, page ten of the AMA Guides are examined, it can be seen that there is little, and sometimes no difference in value between the hand and the upper extremity. Dr. Wyatt eventually awarded a five percent permanent functional impairment rating to each upper extremity. This is also the equivalent of a five percent impairment of each hand as shown in table nine, page ten of the AMA Guides. Normally, a rating of a board certified orthopedic surgeon would be the preferred rating. Richland v. Palco, Inc., Thirty-second Biennial Report the Industrial Commissioner, 56 (1975); Dickey v. ITT Continental Baking Co., Thirty-fourth Biennial Report of the Industrial Commissioner Report, 89 (1979). In addition, Dr. Wyatt was the treating physician, whereas, Dr. Carignan was only hired for the limited purpose of giving a rating for the further purpose of having the rating used in litigation to obtain an award of workers' compensation benefits. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Dr. Wyatt's rating in this case is not highly probative or persuasive. First of all, Dr. Wyatt saw claimant for the last RIENHARDT V. JOHN MORRELL & CO. PAGE 9 time on May 22, 1984, which was only approximately one month after the second surgery and before claimant had attempted to return to work and use his hands in employment again. Secondly, Dr. Wyatt did not give his.rating until three years later on April 16, 1987, but he had not seen or talked to claimant since May 22, 1984. Thirdly, according to claimant's testimony, Dr. Wyatt did not perform any physical tests for range of motion, sensation or strength. Fourth, Dr. Wyatt gives no basis for his rating. It is simply a bare conclusion, a number standing alone, without the slightest explanation of the factors or facts used to arrive at this number. Fifth, Dr. Wyatt did not indicate whether he used the AMA Guides, the orthopedic guides, some other medical guides or no guides at all. Sixth, there was confusion between Dr. Wyatt and defendant's counsel on April 13, 1987, as to whether claimant had no impairment, or a one percent impairment of the body as a whole before Dr. Wyatt eventually settled on the five percent rating to each upper extremity on April 16, 1987. Dr. Carignan is in fact, an examining and evaluating physician for the purposes of litigation and therefore, to some degree, he may possibly be a partisan advocate in the litigation. Dr. Carignan is not a board certified orthopedic surgeon, neurosurgeon or general surgeon. He is not a treating physician responsible for the outcome of claimant's medical treatment and the result of that treatment. Dr. Carignan granted that he was even forced to revise his original rating downward because it was incorrect because it was too high. Even his lowered rating of 15 percent impairment following carpal tunnel surgery is higher than is generally seen for carpal tunnel cases. Furthermore, when Dr. Carignan combined nine percent and six percent and arrived at 15 percent, this too was an incorrect calculation on his part. The combined values chart, on page 240, of the AMA Guides shows that the combined value of nine percent and six percent is 14 percent. Dr. Carignan deducted five percent for the nondominant extremity as is suggested at page 2 of the AMA Guides, in the paragraph entitled "Nonpreferred Upper Extremity". This paragraph reads as follows: Nonpreferred Upper Extremity-Since the basic tasks of everyday living are more dependent upon the preferred upper extremity than upon the nonpreferred one, dysfunction of the nonpreferred extremity results in less impairment than dysfunction of the preferred. Therefore, when the impairment of an upper extremity has been determined to be between 5% and 50%, the value should be reduced by 5% if the impairment is of the nonpreferred extremity. If the determined value is 51% to 100%, the value should be reduced by 10% if the impairment is of the nonpreferred extremity. For example, a 60% impairment would become 60%-(60% x 10%) = 54%. First of all it should be stated that the provisions of this paragraph are not usually applied in workers' compensation practice in carpal tunnel cases. Secondly it should be stated that the wording of this paragraph, in particular the words "tasks of everyday living" would seem to apply more to industrial disability rather than scheduled member disability. Third, Dr. Carignan did not properly apply the deduction for the nondominant or nonpreferred extremity. Dr. Carignan simply deducted five percent. The instructions however, are that you are to deduct RIENHARDT V. JOHN MORRELL & CO. PAGE 10 five percent of the rating and not simply a flat five percent on all ratings. Following the example in this paragraph the proper application of the deduction would be as follows: 15% - (15% x 5%) = 14.25%. Therefore, application of this paragraph results in an insignificant change in the overall impairment rating. For these reasons nothing is deducted for the nondominant hand in this case. This case may be the kind of a case that the authors had reference to in Lawyer and Higgs, Iowa Workers' Compensation -Law & Practice, section 13-4 at pages 111 & 112, when the authors remarked: "Scheduled member cases are always good candidates for settlement. In the routine matter, the defendant's physician will provide one impairment rating; the claimant's doctor another. If the case goes to hearing, barring some inadequacy in history, inequality in qualifications of the experts or insufficiency in examination, the ratings will be added and divided by two. This case however, is not decided on such an arbitrary basis. As between the two doctors, Dr. Carignan gives us the greatest insight into claimant's actual impairment and disability and the physical factors affecting claimant's fingers and hands upon which his opinion is based. Dr. Carignan did perform more detailed testing than did Dr. Wyatt based on the evidence in this record of trial. Claimant testified that Dr. Wyatt did no testing. Dr. Carignan said he performed light touch, pin wheel, sharp touch, pressure range of motion and strength tests. Also, Dr. Carignan's evaluation was performed after claimant had three years of healing and three years of opportunity to recoup the use of his fingers and hands. Agency expertise and experience has evolved to generally indicate that a five percent rating of the hand is somewhat common following a successful carpal tunnel surgery to the hand. Iowa Administrative Procedure Act 17A.14(5). Likewise, an impairment rating of ten percent of the hand or greater indicates a surgery that was not completely successful or in any event, resulted in more impairment than the more successful cases. (VanBlarcom, file no. 796651, filed May 16, 1988). In this case, Dr. Carignan, claimant, claimant's wife and Leibfried all testified that claimant has some serious residual effects from his carpal tunnel syndrome and his carpal tunnel surgery. Although claimant still has deep touch, he has lost significant light touch discrimination (Ex. 7, pp. 17 & 18). His range of motion and grip strength are normal, but claimant has lost significant sensation in his fingers and hands. Claimant drops his bowling ball and his coffee cup. He has greater difficulty writing and typing. He cannot maneuver and manipulate small screws and bolts without difficulty. Claimant has difficulty baling hay, shoveling sidewalks, using a hammer, operating a fishing reel and pulling on a bowstring. Long term use of his hands in manual labor causes pain and numbness. This evidence is not controverted. Therefore, based on the foregoing factors and considerations and applying agency expertise and experience it is determined that claimant has sustained a ten percent permanent functional impairment to each hand. Claimant testified, and the doctors verified, that claimant's carpal tunnel syndrome was bilateral and occurred in each hand at the same time. Dr. Wilson, Dr. Linsheid, Dr. Moreau and Dr. Wyatt all described bilateral carpal tunnel syndrome. RIENHARDT V. JOHN MORRELL & CO. PAGE 11 Dr. Wyatt said claimant began having trouble in both hands at the same time (Ex. 3, p. 2). Therefore, even though neither attorney mentioned it at the hearing or in their briefs, it clearly appears that this injury is governed by Iowa Code section 85.34(2)(s) which reads as follows: The loss of both arms, or both hands, or both feet, or both legs, or both eyes, or any two thereof, caused by a single accident, shall equal five hundred weeks and shall be compensated as such, however, if said employee is permanently and totally disabled he may be entitled to benefits under subsection 3. Applying the AMA Guides at table nine, page ten, it shows that a ten percent impairment of the hand converts to a nine percent impairment of the upper extremity. Then, table 20 on page 23 shows that a nine percent impairment of the upper extremity converts to a five percent impairment of the whole person. Then, the combined values chart on page 240, snows that the combined value of five percent of the right hand and five percent of the left hand gives a combined value of ten percent of the whole person. Applying ten percent to 500 weeks as provided by Iowa Code section 85.34(2)(s) yields a 50 week entitlement to permanent partial disability. Claimant is entitled to 50 weeks of permanent partial disability at the stipulated rate of $156.99 per week in the total amount of $7,849.50. RIENHARDT V. JOHN MORRELL & CO. PAGE 12 FINDING OF FACT Wherefore, based upon the evidence presented the following finding of fact is made: That claimant sustained a ten percent permanent functional impairment of the right hand and a ten percent permanent functional impairment of the left hand. CONCLUSION OF LAW WHEREFORE, based upon the evidence presented and the foregoing principles of law the following conclusion of law is made: That claimant is entitled to 50 weeks of permanent partial disability based upon Iowa Code section 85.34(2)(s). ORDER THEREFORE, IT IS ORDERED: That defendant pay to claimant fifty (50) weeks of permanent partial disability benefits at the rate of one hundred fifty-six and 99/100 dollars ($156.99) per week in the total amount of seven thousand eight hundred forty-nine and 50/100 dollars ($7,849.50) commencing on March 24, 1985; That these benefits are to be paid to claimant in a lump sum; That interest will accrue pursuant to Iowa Code section 85.30; That defendant pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33; and, That defendant file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 17th day of August, 1988. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. E.W. Wilcke Attorney at Law 826 1/2 Lake St. P.O. Box 455 Spirit Lake, Iowa 51460 Mr. Dick Montgomery Attorney at Law RIENHARDT V. JOHN MORRELL & CO. PAGE 13 Professional Bldg, P.O. Box 7038 Spencer, Iowa 51301 1402.40; 1402.40; 2601; 2902 1803 Filed August 17, 1988 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT RIENHARDT, Claimant, File No. 769079 vs. JOHN MORRELL & CO. A R B I T R A T I O N Employer, D E C I S I O N Self-Insured Defendant. 1402.40 Both physicians rated the upper extremities and parties stipulated that the injury was to the upper extremities. Claimant's surgeries for bilateral carpal tunnel were performed in his hands, his complaints were in his hands, and his impairment and disability was in his hands. Section 85.34(2)(a) to (t) does not list the upper extremity as a scheduled member. It does list the hand and the arm. Claimant's disability was determined to be in the hands, but because the injuries arose simultaneously claimant was awarded benefits under Section 86.34(2)(s). 1402.40, 2601, 2902 Several deficiencies of both rating physicians were pointed out. Claimant's independent examiner and evaluator was preferred over the treating physician who was a board certified orthopedic surgeon because he provided more information for the basis of his rating. 1803 Treating physician awarded five percent of each upper extremity. Claimant's evaluator awarded 15 percent of each upper extremity. Claimant awarded ten percent of each hand, converted to upper extremity, converted to body as a whole, and combined to ten percent of 500 weeks for 50 weeks of permanent partial disability. So much of the AMA Guides that deducts five percent of the impairment for the nondominant (nonpreferred extremity) was not used for the reasons stated in the decision.