Page 1 before the iowa industrial commissioner ____________________________________________________________ : RICHARD L. BERDING, : : Claimant, : : vs. : : File Nos. 832396 & 904266 PACKERLAND PACKING CO., INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Richard L. Berding, claimant, against Packerland Packing Company, Inc., employer (hereinafter referred to as Packerland), and Cigna Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of alleged injuries on August 29, 1986 and August 10, 1988. On August 9, 1990, a hearing was held on claimant's petitions and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the prehearing report, the parties have stipulated to the following matters: 1. Claimant sustained injuries on the dates alleged in the petitions which arose out of and in the course of employment with Packerland. 2. Claimant is entitled to temporary total disability or healing period benefits for the periods of time set forth in the prehearing report and these benefits have been paid at the proper rate according to the prehearing report. 3. If the injuries are found to have caused permanent disability, the type of disability is an industrial disabil ity to the body as a whole. 4. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $199.42 for the August 1986 injury and $210.43 for the Page 2 August 1988 injury. It was also stipulated that in the event it is found that claimant suffered a cumulative trauma, the rate of compensation shall be $210.43 per week. 5. With reference to the requested medical expenses, it was agreed that the charges for the services are fair and reasonable but whether or not they were necessary, autho rized or causally connected to the injury is in dispute. issues The parties submitted the following issues for determi nation in this proceeding: I. The extent of claimant's entitlement to permanent disability benefits; II. The extent of claimant's entitlement to medical benefits; and, III. The extent of claimant's entitlement to voca tional rehabilitation benefits under Iowa Code section 85.70. findings of fact Having heard the testimony and considered all the evi dence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants place claimant's credibility at issue as to the nature and extent of the injury and disability. From his demeanor while testifying, claimant is found credible. Claimant worked for Packerland and his predecessor, Banner Beef, from August 1975 until April 1989, at which time claimant was terminated for failure to return to work as instructed by one of claimant's treating physicians. Claimant contends that he did not return to work as he was not able to do so and that this disability was verified by another physician. Claimant's work at Packerland involved heavy manual labor as a meat packer performing various jobs in the slaughtering of beef cattle. Claimant has not been employed in any capacity since his termination at Packerland and is currently attending a community college seeking an associate of applied science degree in computer programming. The injury of August 1986, involved claimant's low back. While performing the job of "trimming hearts" and "cleaning tails" claimant experienced severe low back pain while attempting to lift an 80 pound tub of "tails." Claimant continued to work but the pain grew worse and "seem to work up to the upper back." After work claimant sought chiropractic care from Bruce Crabtree, D.C. Claimant con tinued under the care of Dr. Crabtree and returned to light duty work on September 14, 1986. After a week of "trimming tongues" claimant's pain reoccurred and claimant was again taken off work by Dr. Crabtree. Claimant was then referred to a medical doctor who prescribed medication for pain. Claimant's condition continued to worsen and he was eventu Page 3 ally referred to an orthopedic surgeon, John J. Dougherty, M.D. Dr. Dougherty eventually diagnosed that claimant was suffering from radiculopathy at the L5 level of claimant's spine due to degenerative discs. Dr. Dougherty prescribed exercises and medication. Claimant improved and returned to light duty work in October of 1986. Upon his return, claimant was assigned to "trimming tripe", a lighter duty job, but was eventually returned to full duty as an assis tant foreman in the allful department. This job still required claimant to perform heavy lifting and claimant said that he continued to have pain when he exceeded 60 pounds in lifting. However, no formal restrictions were imposed upon claimant and he was able to continue working. Claimant's chiropractic care ended in January of 1987 upon the advice of Dr. Dougherty. Claimant stated that he never fully recovered from the August 1986 injury. Dr. Dougherty stated in his final report prior to the August 1988 injury, that claimant should not do a lot of heavy lifting or excessive bending or lifting. The injury of August 1988 was again to the low back after lifting a tub of meat products but this time the pain extended into the mid and upper back. Claimant was "trimming hearts" at the time. Claimant was treated at this time by his family physician R. L. Magruder, M.D., who allowed claimant to continue working but with physical therapy after each work day. After claimant failed to improve, claimant was referred to an orthopedic surgeon, Duane K. Nelson, M.D., on August 31, 1988. Dr. Nelson diag nosed discogenic low back pain likely due to disc disease at L2-3 and L5-S1. Dr. Duane Nelson stated that claimant's condition was a work related injury of the low back. Dr. Duane Nelson stated that claimant was not suitable for heavy work and recommended rehabilitation with no lifting over 50 pounds or 20 pounds on a repetitive basis. Dr. Duane Nelson stated that claimant's condition was permanent. In January 1989, claimant's care was transferred to a Brian Nelson, M.D., another orthopedic surgeon, by the voca tional rehabilitation consultant hired by defendants. This rehabilitation consultant testified at hearing that Dr. Brian Nelson was a back specialist with a lot of success with low back problems. Dr. Brian Nelson diagnosed degener ative disc disease and stated in his first report that claimant was not a good candidate for heavy manual labor and stated that a return to work at the packing plant should not be a goal. He treated claimant with a vigorous physical therapy program. Claimant attended this program but soon complained to Dr. Magruder on February 13, 1989, that the program was actually increasing not decreasing his back pain, claimant was advised by Dr. Magruder to tell this to Dr. Brian Nelson. On February 20, 1989, claimant reported his problems with the program to Dr. Brian Nelson. Dr. Brian Nelson then issued a report stating that claimant was not appearing for physical therapy and was greatly magnify ing his symptoms. Dr. Brian Nelson then released claimant to return to work at the packing plant with a gradual ease into full duty over a 30 day period. Dr. Brian Nelson never explained what changed his mind from his initial report con cerning a return to work at the packing plant but it was Page 4 apparent that he felt that claimant was exaggerating his back problems. However, this conflicts with the reports of his own physical therapist who clearly stated that claimant was experiencing increased pain from the therapy. Claimant's severe muscle spasms were objectively noted by Dr. Magruder on February 13. Therefore, the undersigned gives little weight to the views of Dr. Brian Nelson. Claimant was terminated in April 1989 for failure to follow Dr. Brian Nelson's return to work recommendations. Claimant then sought treatment on his own from Dr. Duane Nelson on February 21, 1989. Although Dr. Nelson stated that "secondary gain cannot be totally excluded" he felt that claimant should discontinue the physical therapy ordered by Dr. Brian Nelson and that he should continue with a lighter physical therapy program. Claimant did so after that time. Dr. Duane Nelson felt that it was best to back off on further testing and refer claimant to another ortho pedic surgeon, Gail Benson, M.D., for another opinion. Dr. Benson saw claimant in March of 1989. After a negative CT scan, Dr. Benson diagnosed that claimant suffers from degen erative disc disease and that there should be a functional capabilities assessment before she could allow a return to work. This assessment was performed in April of 1989. According to the assessment, claimant can only stand for 30 minutes, carry up to 12 pounds with either hand, push only 35.5 pounds, pull only 22 pounds and lift approximately 10-12 pounds. The evaluator stated, however, that this was not a good measure of claimant's capabilities as claimant ended his efforts whenever he experienced any degree of pain. If claimant is willing to tolerate some degree of pain, his capabilities would be greater. However, to be sure that no further injury takes place, it was recommended that the work stay within the capabilities assessment as described above. The evaluator recommended that a structured work hardening program be implemented to increase claimant's capabilities. As a result of both work injuries in this case, claimant has suffered a significant degree of permanent partial impairment to the body as a whole. As this is an industrial disability case, the exact percentage of impair ment is not as important as the physical restrictions imposed as a result of the injuries which impede his ability to earn income. All physicians in this case, except for possibly Dr. Brian Nelson, believe that claimant suffers from chronic and permanent low back problems. Based upon the views of Dr. Benson, claimant's most recent functional capabilities assessment appears to be the best indicator of his current limitations should he return to factory work. In addition, claimant's credible testimony established that he does have some limitations with prolonged sitting such as driving long distances. He experienced these problems while pursuing his current educational program. It is also found that claimant suffered permanent impairment after each of the two injuries. This finding is based upon the views of Drs. Duane Nelson and Mark Kruse, D.C., who examined claimant in May of 1990. Also, another Page 5 physician, Paul Vander Kooi, M.D., examined claimant in June of 1990. Dr. Vander Kooi, specialty unknown, opined that claimant's degenerative disc disease is due to claimant's history of heavy lifting at Packerland over the years. No other causal connection opinions were offered in this case. Claimant had a prior back injury in 1981 at Packerland but claimant was able to return to full duty without restrictions after this injury and only received occasional maintenance care from a chiropractor since that time. Therefore, it is found that claimant suffered no permanent partial impairment as a result of the 1981 injury. As a result of the work injury of August 10, 1988, claimant has suffered a 35 percent lost of earning capacity. Although claimant suffered permanent partial impairment from the August 1986 injury, claimant suffered no loss of earning capacity as he was able to return to full duty and he became an assistant foreman. It matters little whether you con sider the last injury as "the straw that broke the camel's back" or the last incident in a cumulative trauma situation, the result is the same. As a result of this last injury, claimant is unable to return to any work requiring heavy lifting, repetitive lifting, bending or prolonged standing or sitting. Claimant's only employment history has been in heavy manual labor. Due to his physical limitations, claimant's ability to perform work in his locality is severely restricted. Claimant has suffered a very signifi cant loss of actual earnings due to the loss of his job at Farmland and his inability to return to work without retraining. Although the termination in April of 1989, by Packerland appeared to be rather hasty, it matters little as it is clear that Packerland would have terminated claimant anyway due to the imposition of permanent restrictions by his physicians. Claimant remains unemployed at the present time. On the other hand, claimant is relatively young at 36 years of age. Claimant has a high school education. Claimant has considerable motivation to return to the work force. After his termination at Packerland, he enrolled in and is about to complete his current educational program with the assistance of the Iowa Division of Vocational Rehabilitation Services. This appears to be the best voca tional rehabilitation alternative as defendants' own voca tional consultant could only identify five jobs in claimant's locality under the Dictionary of Occupational Titles and it was not shown that any of these jobs are open or available to claimant at this time. Defendants have not assisted claimant in any manner in claimant's current voca tional rehabilitation endeavors. Due to the testimony of the head of the computer science department at claimant's school, it is likely that claimant will be placed in a job which will pay approximately the same as claimant's job at Packerland. Although there is potential for a higher salary, this is only speculation at this time. However, claimant will probably have to move his long time residence Page 6 at great emotional and monetary expense. Except for the bill from Dr. Kruse, the medical bills and expenses submitted for reimbursement at hearing as listed in the prehearing report are found causally connected to the work injuries herein and are also found to be reason able and necessary treatment of those injuries. The expenses of Dr. Kruse appear to be only for use in litiga tion rather than medical treatment. Again, the views of Dr. Brian Nelson that claimant had little or no disability and was able to return to full duty at Packerland after 30 days was not credible. conclusions of law I. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent dis ability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physi cal 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 Railway 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. The extent to which a work injury and a resulting medical condi tion has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, imme diately 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. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, l985). In this decision, it was found that claimant may not eventually suffer a permanent loss of actual earnings as he is likely to find employment as a computer programmer at or close to his earnings at Packerland. A showing that claimant had no loss of actual earnings does not preclude a finding of industrial disability. See Michael v. Harrison County, Thirty-fourth Biennial Report, Iowa Industrial Commissioner 218, 220 (Appeal Decision 1979). On the other hand, this award was lowered by virtue of the finding. The Page 7 undersigned agrees with the analysis of Steward v. Crouse Cartage Company, (Appeal Decision filed February 20, 1987) contained in defendants' post hearing brief. Although the mere enrollment or participation in a retraining program is no measure of its success, its probable success or failure can be shown by other evidence. In this case, the credible testimony of the head of the computer science department was sufficient to show that success is likely in this case. In the case sub judice, it is found that claimant has suffered a 35 percent loss of earning capacity as a result of the work injury. Based upon such a finding, claimant is entitled as a matter of law to 175 weeks of permanent par tial disability benefits under Iowa Code section 85.34(2)(u) which is 35 percent of 500 weeks, the maximum allowable for an injury to the body as a whole in that subsection. It was stipulated that such benefits would begin as of April 15, 1989. II. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. Claimant is entitled to an order of reimbursement only if claimant has paid those expenses. Otherwise, claimant is entitled to only an order directing the responsible defendants to make such payments. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). In the case at bar, all but one of the expenses, that of Dr. Kruse, was found causally connected to the injury and reasonable and necessary treatment. Although Dr. Kruse's bill may qualify as an independent medical examination, an issue involving Iowa Code section 85.39 was not raised at the prehearing conference and nor was it assigned as an issue in the hearing assignment order. Therefore, such an issue cannot be heard. Defendants claim that the expenses requested by claimant at hearing were for unauthorized treatment and claimant is not entitled to reimbursement for these expenses as Iowa Code section 85.27 provides employees with the right to chose the care. However, section 85.27 applies only to injuries and conditions compensable under Chapters 85 and 85A of the Code and obligates the employer to furnish rea sonable medical care. This agency has held that it is inconsistent to deny liability and the obligation to furnish care on one hand and at the same time claim a right to chose the care. Kindhart v. Fort Des Moines Hotel, I Iowa Industrial Commissioner Decisions 3, 611 (Appeal Decision 1985); Barnhart v. MAQ Incorporated, I Iowa Industrial Commissioner Report 16 (Appeal Decision 1981). In this case, defendants have consistently denied liability for claimant's permanent and chronic problems and asserted that claimant only exaggerated his disability. They have chosen to adopt the views of Dr. Brian Nelson who felt that claimant was able to return to work after only 30 days of light duty at a packing plant. Therefore, defendants had no right to chose the care for any of claimant's permanent con tinuing back problems. For the most part defendants' Page 8 refused to provide care by their adoption of the views of Dr. Brian Nelson which are not found credible in this case. III. Claimant is entitled to rehabilitation benefits under Iowa Code section 85.70 as he has sustained injuries resulting in permanent partial disability and he cannot return to gainful employment because of such disability. Claimant is successfully participating in a rehabilitation program sponsored by the Iowa Division of Vocational Rehabilitation. Claimant will be awarded the maximum bene fits under this code section, the sum of $20.00 per week for 26 consecutive weeks. order 1. Defendants shall pay to claimant one hundred seventy-five (175) weeks of permanent partial disability benefits at the rate of two hundred ten and 43/l00 dollars ($210.43) per week from April 15, 1989. 2. Defendants shall pay the medical expenses listed in the prehearing report except for the examination and report of Dr. Kruse. Claimant shall be reimbursed for any of these expenses paid by him. Otherwise, defendants shall pay the provider directly along with any lawful late payment penal ties imposed upon the account by the provider. 3. In addition to the above award for permanent par tial disability, claimant shall be paid vocational rehabili tation benefits in the amount of twenty and no/l00 dollars ($20.00) per week for twenty-six (26) consecutive weeks beginning on the date he was first enrolled in his current education program. 4. Defendants shall pay accrued weekly benefits in a lump sum. 5. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 6. Defendants shall pay the cost of this action pur suant to Division of Industrial Services Rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 7. Defendants shall file activity reports on the pay ment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343 IAC 3.1. Signed and filed this ____ day of November, 1990. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Page 9 Copies To: Mr. Charles T. Patterson Mr. Thomas M. Plaza Attorneys at Law 701 Pierce St STE 200 P O Box 3086 Sioux City IA 51102 Mr. Charles E. Cutler Attorney at Law 729 Ins Exchange Bldg Des Moines IA 50309 BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHUBB GROUP OF INSURANCE COMPANIES, Insurance Carrier, File No. 832446 vs. A P P E A L CNA, D E C I S I O N Insurance Carrier, F I L E D In The Matter of Clara Schexnayder, not a party, AUG 23 1989 vs. INDUSTRIAL SERVICES Sioux Honey Association, not a party, STATEMENT OF THE CASE CNA Insurance Company (hereinafter CNA) appeals and Chubb Group of Insurance Companies (hereinafter Chubb Group) cross-appeals from a decision on 85.21 benefits which ordered CNA to reimburse Chubb Group for medical benefits and permanent partial disability benefits but denied interest payments and attorneys' fees. The record on appeal consists of stipulated facts and 16 stipulated exhibits with number 15 omitted. Both parties filed briefs on appeal. ISSUES The issues on appeal are whether Chubb Group is entitled to reimbursement of medical benefits and permanent partial disability benefits and whether Chubb Group is entitled to interest payments and attorneys' fees. REVIEW OF THE EVIDENCE The decision on 85.21 benefits dated July 20, 1988, adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. APPLICABLE LAW The citations of law in the decision on 85.21 benefits are appropriate to the issues and evidence. The following additional citations are applicable. Iowa Code section 85.30 provides: Compensation payments shall be made each week beginning on the eleventh day after the injury, and each week thereafter during the period for which compensation is payable, and if not paid when due, there shall be added to the weekly compensation payments, interest at the rate provided in section 535.3 for court judgments and decrees. Iowa Code section 86.39 provides: All fees or claims for legal, medical, hospital, and burial services rendered under this chapter and chapters 85, 85A, 85B, and 87 are subject to the approval of the industrial commissioner, and no lien for such service is enforceable without the approval of the amount of the lien by the industrial commissioner. For services rendered in the district court and appellate courts, the attorney's fee is subject to the approval of a judge of the district court. Iowa Code section 86.40 provides: "All costs incurred in the hearing before the commissioner shall be taxed in the discretion of the commissioner." Workers' compensation statutes are to be liberally interpreted to benefit the injured worker. [T]he primary purpose of the workers' compensation statute is to benefit the worker and the workers' dependents insofar as the statute permits. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 188 (Iowa 1980). Thus the statute is to be interpreted liberally with a view toward that objective. Irish v. McCreary Saw Mill, 175 N.W.2d 364, 368 (Iowa 1970). Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 1981) "It is also true, as argued by appellant, that the workmen's compensation statute is to be liberally construed, and where possible evils would result under either of two constructions, that which is to the advantage of the employee must control." Haverly v. Union Const. Co., 18 N.W.2d 629, 632 (Iowa 1945). ANALYSIS On appeal CNA argues that the deputy erred in finding that the employee in this proceeding, Clara Schexnayder, (hereinafter referred to as the injured worker) had a cumulative injury. CNA argues that this case is not factually appropriate for the application of the cumulative injury rule. CNA's argument is not convincing. The injured worker in this case experienced pain and numbness in her hand approximately one month after commencing a job assignment where she unscrewed lids from jars. The injured worker sought medical treatment but missed work for only one-half day from the time she commenced the new job until May 17, 1986. (CNA was the insurance carrier for all relevant times after May 17, 1986.) Nothing in the record indicates a traumatic event that caused the injury. The injured worker suffered a compensable cumulative injury when she missed work for a compensable period of time. She missed work for a compensable period of time after May 17, 1986, and CNA was the insurance carrier at that time. On cross-appeal Chubb Group argues that it should be awarded interest payments and attorneys' fees. Clearly, no interest can be allowed on payment of medical expenses. See Klein v. Furnas Electric Co., 384 N.W.2d 370 (Iowa 1986). Workers' compensation laws are for the benefit of the injured worker. When an injured worker is entitled to weekly benefits, the benefits should be paid promptly. Employers and insurance carriers should be encouraged to promptly pay weekly benefits. In this case, Chubb Group paid weekly benefits to the injured worker. These benefits were paid even though Chubb Group, as found herein, was not ultimately liable and is to be reimbursed by CNA. Chubb Group paid weekly benefits that were the liability of CNA. In effect, CNA had use of money that was properly Chubb Group's. CNA should reimburse Chubb Group and pay interest at the rate provided in Iowa Code section 85.30 from the date Chubb Group paid benefits to the injured worker. If CNA were not required to pay interest, insurance carriers in similar circumstances would not be encouraged to promptly pay weekly benefits to injured workers. If an insurance carrier is not required to pay interest on the amount of weekly benefits, that insurance carrier will gain a windfall at the expense of another insurance carrier who promptly pays weekly benefits. If Chubb Group had not paid the weekly benefits to the injured worker, CNA would have been responsible for paying the weekly benefits plus interest to the injured worker. CNA is only being required to pay interest that it would have had to pay. It is appropriate that CNA pay Chubb Group interest from the time the weekly benefits were paid. Chubb Group's argument that it is entitled to attorneys' fees is not convincing. There is simply inadequate justification, statutory or otherwise, for awarding Chubb Group attorneys' fees in this matter. Assuming for the sake of argument that either Iowa Code section 86.39 or 86.40 allowed for attorneys' fees in this situation, those code sections provide for the industrial commissioner to exercise discretion in approving the fees. There is no good reason why attorneys' fees should be awarded. FINDINGS OF FACT 1. The injured worker suffered a gradual and progressive injury while working which resulted in a carpal tunnel release on August 6, 1986. 2. Chubb Group was the insurance carrier for the injured worker's employer through May 17, 1986. 3. CNA was the insurance carrier for the injured worker's employer for all times relevant after May 17, 1986. 4. The injured worker did not miss work for a compensable period of time until after May 17, 1986. 5. The injured worker's medical expenses, healing period and permanent partial disability benefits have been paid by Chubb Group as follows: medical expenses $3,089.03 weekly benefits 5,568.49 $8,657.52 CONCLUSIONS OF LAW Chubb Group is entitled to reimbursement of $8657.52 from CNA. Chubb Group is entitled to interest on the reimbursement of the weekly benefits from CNA and interest shall accrue from the date paid by Chubb Group as provided in Iowa Code section 85.30. Chubb Group is not entitled to interest on the reimbursement of medical expenses from CNA. Chubb Group is not entitled to attorneys' fees from CNA. WHEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That CNA reimburse Chubb Group eight thousand six hundred fifty-seven and 52/100 dollars ($8,657.52) for a compensable injury to Clara Schexnayder, the injured worker, pursuant to section 85.21, Iowa Code (1987). That CNA pay Chubb Group interest on reimbursement of weekly benefits from the date paid by Chubb Group. That CNA pay all costs pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 23rd day of August, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Ms. Judith Ann Higgs Attorney at Law 200 Home Federal Bldg. P.O. Box 3086 Sioux City, Iowa 51102 Mr. Michael P. Jacobs Attorney at Law 300 Toy National Bank Bldg. Sioux City, Iowa 51101 1000, 3800, 4200 Filed August 23, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHUBB GROUP OF INSURANCE COMPANIES, Insurance Carrier, File No. 832446 vs. A P P E A L CNA, Insurance Carrier, D E C I S I O N In The Matter of Clara Schexnayder, not a party, vs. Sioux Honey Association, not a party, 1000 Attorney fees were not awarded to one insurance carrier which was reimbursed by a successor carrier for medical expenses and weekly benefits under a section 85.21 proceedings. 3800 No reimbursement for interest on medical expenses under a section 85.21 proceeding citing Klein v. Furnas Electric Co., 384 N.W.2d 370 (Iowa 1986). Interest was allowed on reimbursement of weekly benefits from the time weekly benefits were paid. 4200 Successor insurance carrier was ordered to reimburse for medical expenses and weekly benefits for a cumulative injury. Insurance carrier at time injured worker missed work for a compensable period of time was ultimately responsible for benefits. Successor insurance carrier was also ordered to pay interest on weekly benefits but was not liable for interest on medical benefits nor liable for attorneys' fees. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHUBB GROUP OF INSURANCE COMPANIES, Insurance Carrier, File No. 832446 vs. D E C I S I O N CNA, O N Insurance Carrier, 85.21 In The Matter of Clara Schexnayder, not a party, B E N E F I T S Sioux Honey Association, not a party, INTRODUCTION This is a proceeding under Iowa Code section 85.21 brought by Chubb Group of Insurance Companies, insurance carrier, against CNA Insurance Company, insurance Carrier, for reimbursement of benefits paid to Clara Schexnayder for an injury arising out of and in the course of her employment at Sioux Honey Association. The claimant is not a party to the proceeding. On March 31, 1988, the parties submitted a stipulated record and a stipulated exhibit list. Briefs have been filed by the respective parties. The record consists of 16 exhibits stipulated to by the parties in their stipulated exhibit list. In addition to the stipulated exhibit list, the parties stipulate to the following facts: 1. That claimant had an injury arising out of and in the course of her employment which necessitated her having a carpal tunnel release on August 6, 1986. 2. That Chubb Group of Insurance Companies was the insurance carrier for Sioux Honey Association through May 17, 1986. 3. That CNA Insurance Company was the carrier for all relevant times thereafter. 4. That all claimant's medical expenses, healing period and permanent partial disability have been paid by Chubb Group of Insurance Companies. 5. That in the event CNA is found liable for claimant's injuries, Chubb Group should be reimbursed by CNA for all weekly and medical expenses it has incurred. 6. That Chubb Group has incurred legal expenses which CNA agrees are fair and reasonable. CHUBB GROUP OF INSURANCE COMPANIES V. CNA PAGE 2 7. That simultaneous briefs will be submitted in this matter on April 15, 1988. ISSUES The issues presented by the parties are: 1) Which insurance carrier is liable for benefits when a cumulative injury occurs over a period of time and there is a successor insurance carrier; 2) Whether the payment of interest is due to an insurance carrier from a successor insurance carrier for amounts expended in weekly benefits and in medical expenses; and, 3) Whether the payment of attorneys' fees and other legal expenses is due to an insurance carrier from another insurance carrier for an action brought under Iowa Code section 85.21. FACTS PRESENTED The claimant, Clara Schexnayder, commenced her employment with Sioux Honey Association in July of 1979. Initially, the claimant had been hired to perform clean-up tasks on the night shift. In February or March of 1986, Ms. Schexnayder was transferred to the day shift where she unscrewed the lids from jars of honey. Approximately one month after commencing this job assignment, the claimant experienced pain and numbness in her hand. Nowhere does the record indicate there was a traumatic event or events which triggered the claimants injury. On April 15, 1986, the claimant sought medical attention from Dr. Bramlett Murphy, M.D., an internal medicine specialist. At that time, the claimant was diagnosed as "osteoarthritis with painful wrists and hands secondary to activity." Medication was prescribed for the claimant. The claimant continued to perform her tasks with the jar lids. Then on July 22, 1986, she again sought the medical attention of Dr. Murphy who changed the claimant's medication and ordered a nerve conduction test. The nerve conduction test was subsequently interpreted by Dr. B. Krysztofiak, M.D., who diagnosed the claimant's condition as: The motor and sensory distal latencies of the right median nerve are increased, the amplitude of sensory action potentials is reduced and there is marked slowing of conduction across the wrist consistent with moderately severe carpal tunnel syndrome. The ulnar and radial nerve conduction tests on the right side are normal. (Joint Exhibit 5) The claimant was then referred to Dr. N. R. Lentini, M.D., who performed surgery on her right wrist for carpal tunnel syndrome. Dr. Lentini subsequently gave the claimant a five percent permanent impairment to her right hand. Chubb Group with no admission of any liability paid the following to Ms. Schexnayder: medical expenses totalling $3,089.03 and weekly benefits of $5,568.49. CHUBB GROUP OF INSURANCE COMPANIES V. CNA PAGE 3 APPLICABLE LAW This action was brought pursuant to Iowa Code section 85.21. Section 85.21 provides in relevant portion; 1. The industrial commissioner may order any number or combination of alleged workers' compensation insurance carriers and alleged employers, which are parties to a contested case or to a dispute which could culminate in a contested case, to pay all or part of the benefits due to an employee or an employee's dependent or legal representative if any of the carriers or employers agree, or the commissioner determines after an evidentiary hearing, that one or more of the carriers or employers is liable to the employee or to the employee's dependent or legal representative for benefits under this chapter or under chapter 85A or 85B, but the carriers or employers cannot agree, or the commissioner has not determined which carriers or employers are liable. ... 3. When liability is finally determined by the industrial commissioner, the commissioner shall order the carriers or employers liable to the employee or to the employee's dependent or legal representative to reimburse the carriers or employers which are not liable but were required to pay benefits. Benefits paid or reimbursed pursuant to an order authorized by this section do not require the filing of a memorandum of agreement. However, a contested case for benefits under this chapter or under chapter 85A or 85B shall not be maintained against a party to a case or dispute resulting in an order authorized by this section unless the contested case is commenced within three years from the date of the last benefit payment under the order. The commissioner may determine liability for the payment of workers' compensation benefits under this section. Under section 85.21, the commissioner may determine which insurance carrier is liable for the payment of weekly compensation benefits and medical expenses. In order to receive workers' compensation, it is not necessary for a claimant to prove a sudden unexpected traumatic event; it is sufficient to establish that a particular disability is caused by a work activity which can be gradual and progressive in nature. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1965). The Iowa Supreme Court, in McKeever, upheld this agency's adoption of the cumulative injury rule for application in tactually appropriate cases. The McKeever Court cited Larson's Workmen's Compensation Law, section 39.50 at 11-350.28 for two general rules as to when the injury occurs for time limitation purposes in cumulative trauma cases. Under the Larson test, the injury may occur when pain prevents the employee from continuing to work or when pain occasions the need for medical treatment. The Court adopted the Larson test that the injury occurs when pain prevents the employee from continuing work reasoning that "clearly the employee is disabled and injured when, because of pain or physical disability he can no longer work." McKeever at 374. CHUBB GROUP OF INSURANCE COMPANIES V. CNA PAGE 4 When a particular disability is gradual or progressive in nature, the liable insurance carrier is the carrier which covers the risk at the time of the most recent injury or exposure which bears a causal relation to the disability. McKeever at 376. ANALYSIS Chubb Group of Insurance Companies, insurance carrier, has met its burden in proving that CNA, insurance carrier, is liable for the payment of weekly compensation benefits and medical expenses for the claimant, Clara Schexnayder. Chubb Group was the insurance carrier through May 17, 1986. After that date, CNA was the carrier. The record establishes that approximately one month after the claimant began the task of unscrewing lids from jars of honey, the claimant experienced pain and numbness in her right hand. While the claimant sought medical treatment on April 15, 1986 for her hand, she was not prevented from returning to work. She continued working until July 22, 1986, when she again sought medical attention. At this point the claimant ceased work because of the pain she was experiencing. Under the McKeever test, it was the claimant's inability to work which placed full liability upon the carrier to cover the risk. The carrier covering the risk at the time was CNA. Under McKeever, Chubb Group was not liable for any compensable injury to the claimant. however, since Chubb Group, with no admission of any liability paid medical expenses totaling $3,089.03 and weekly benefits of $5,568.49 under section 85.21, Chubb is now entitled to a reimbursement for the same sum from CNA. Chubb Group has also asked for interest on the payments made to the claimant. Iowa Code section 85.30 allows a claimant interest payments if compensation which is payable is not paid when due. Similar provisions are not made for the payment of interest from one carrier to another. In addition to the interest payments requested by Chubb Group, Chubb has also requested the payment of attorneys' fees. Under Iowa law, attorney fees are not ordinarily recoverable from the opposing party in litigation. However, the fees may be recoverable under special statutes. Turner v. Zip Motors, 245 Iowa 1091, 1098, 65 N.W.2d 427 (1954). Section 86.39 does provide the industrial commissioner with the power to approve claims for legal fees and liens. This section, however, is limited to approving fees for claimant's attorneys. Attorneys' fees do not appear to be appropriate in this instance. Chubb Group is not entitled to attorneys' fees. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based upon the stipulation, the evidence presented, and the principles of law previously stated, the following findings of fact and conclusions of law are made: FINDING 1. Claimant suffered a gradual and progressive injury while working for defendant which resulted in a carpal tunnel release on August 6, 1986. FINDING 2. The parties stipulated that the injury arose out CHUBB GROUP OF INSURANCE COMPANIES V. CNA PAGE 5 of and in the course of claimant's employment. FINDING 3. The claimant suffered pain and as a result was unable to work for defendant from July 22, 1986 to January 26, 1987. CONCLUSION A. The injury occurred when the claimant was unable to work for defendant because of the pain. FINDING 4. On July 22, 1986, the date of the injury, insurance carrier for the employer was CNA. CONCLUSION B. The carrier responsible for the injury on July 22, 1986 is CNA. FINDING 5. The claimant's medical expenses, healing period and permanent partial disability have been paid by Chubb Group of Insurance Companies as follows: medical expenses $3,089.03 weekly benefits 5,568.49 Total $8,657.52 CONCLUSION C. Chubb Group is entitled to a reimbursement of $8,697.52. CONCLUSION D. Chubb Group is not entitled to interest payments from, CNA. CONCLUSION E. Chubb Group is not entitled to attorneys' fees from CNA. ORDER THEREFORE, CNA is to reimburse unto Chubb Group eight thousand six hundred fifty-seven and 52/100 dollars ($8,657.52) for a compensable injury to Clara Schexnayder pursuant to section 85.21, Iowa Code (1987). Costs are taxed to CNA pursuant to Industrial Commissioner Rule 343-4.33. CNA shall file a final report upon payment of this award. Signed and filed this 20th day of July, 1988. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael P. Jacobs Attorney at Law 300 Toy National Bank Bldg. Sioux City, Iowa 51101 Ms. Judith Ann Higgs CHUBB GROUP OF INSURANCE COMPANIES V. CNA PAGE 6 Attorney at Law 200 Home Federal Bldg. P. O. Box 3086 Sioux City, Iowa 51102 1000; 4200 Filed July 20, 1988 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHUBB GROUP OF INSURANCE COMPANlES, Insurance Carrier, File No. 832446 vs. D E C I S I O N CNA, O N Insurance Carrier, 85.21 In The Matter of Clara Schexnayder, not a party, B E N E F I T S vs. Sioux Honey Association, not a party, 4200 A successor insurance carrier was liable for benefits when a cumulative injury occurred over a period of time. 1000 Attorneys' fee were not awarded to one insurance carrier from a successor carrier when a cumulative injury occurred over a period of time.