BEFORE THE IOWA INDUSTRIAL COMMISSIONER SID AUSTIN, Claimant, File No. 846126 vs. P.I.E. NATIONWIDE, A T T 0 R N E Y Employer, F E E and D I S P U T E CIGNA, D E C I S I O N Insurance Carrier, Defendants. STATEMENT OF THE CASE This is an attorney fee dispute between Sid Austin, claimant, and Peter Soble, Attorney at Law. This matter came on for hearing before the undersigned deputy industrial commissioner April 25, 1988 and was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of claimant, Bill Lyman, and Peter Soble and Soble exhibits 1 and 2. ISSUES The sole issue presented for resolution is whether Mr. Soble is entitled to a fee for services rendered and the reasonableness of that fee. FACTS PRESENTED Claimant testified he was involved in an accident on May 4, 1987 while driving for P.I.E. Nationwide, that he notified the appropriate company officials and was told to see a doctor. Claimant recalled he went to see Peter Soble, Attorney at Law, on May 7, 1987 and discussed the accident, explaining he had no concern over being paid workers' compensation benefits but wanted to pursue the possibility of a third party action. Claimant explained he was told a workers' compensation action would be filed in case the third party suit "did not come through" and that he understood there was no fee agreement on the workers' compensation action and that there would be no charge for legal services if no funds were received from hearing of settlement. Claimant acknowledged he did sign two contracts and that he was aware two actions would be filed. Claimant testified he had neck and back pain as a result AUSTIN V. P.I.E. NATIONWIDE PAGE 2 of the accident and saw Dr. Twyner, who became and remained his treating physician although Mr. Soble wanted him to see other doctors. Claimant stated it was his understanding that Dr. Twyner was waiting for a form from Cigna Insurance Company to file his report on claimant's condition and that when Dr. Twyner got the form it was filled out and promptly mailed. Claimant testified he contacted Bill Lyman, business agent for Teamsters Local 238, because he was not getting any satisfaction from Mr. Soble. Claimant stated that it was Lyman who got answers and Lyman who got the workers' compensation benefits moving. Claimant stated he contacted four attorneys in the Davenport area concerning their fees and that he was told by one that unless the case was an unusual one, there would be no charge for securing temporary total disability payments; by two others that there would be no charge for securing temporary total disability payments; and by a fourth attorney that while there might be a charge on temporary total disability, there would not be on late temporary total disability payments. Claimant testified that all of his medical benefits were paid, that he received approximately $5000 in temporary total disability benefits, that he had no permanency as a result of the injury, and that he has returned to work in his regular job. Bill Lyman, who identified himself as the business representative for Teamsters Local 238, Motor Freight Division, testified he received a call from claimant in late May 1987, that claimant was complaining he was not receiving his workers' compensation benefits in violation of the contract and that he was becoming concerned. Mr. Lyman recalled contacting his AUSTIN V. P.I.E. NATIONWIDE PAGE 3 supervisor in Omaha and being told that claimant's failure to receive the benefits was a result of a "technical situation" and not as a result of any denial of liability. Mr. Lyman testified that he later contacted Mr. Soble's office to convey the information that the company was not denying liability, and that it was a matter of getting a doctor's statement. Mr. Lyman could not recall if he spoke directly to Mr. Soble or not. Mr. Lyman testified he also called a workers' compensation agent for Cigna in Florida and that he was told the reason for the delay was that either the medical report had not been received or a Cigna form had not been returned. Mr. Lyman stated he last contacted Florida approximately June 25, 1987 as a grievance had to be filed by June 28 and he was once again assured there was no dispute on the claim. Mr. Lyman felt sure his intervention had played a role in getting claimant's benefits to him. Peter Soble testified claimant came to see him on May 7, 1987 concerning the accident of May 4, 1987 and that following an interview he presented a contingent fee agreement to claimant who read and signed the document. That agreement states, in part: Client agrees to pay attorney 33 1/2 % of the amounts awarded or agreed upon, out of the first monies received in the case, said sum being computed on all disputed monies collected. "Disputed" sum shall mean any benefit for permanent partial disability, and any sum for temporary total disability which is not paid within seven (7) days of its due date, in the proper amount, and medical bills not paid within 30 days of their presentation, or not paid in the proper amount. Should Attorney be discharged or withdraw, fees shall be calculated on the amount of work done on a per hour basis at the rate of $150/hour, with a minimum of 1/4 hour to be charged for any single item of work, plus costs. An itemized breakdown of costs and per hour work will be provided within a reasonable time upon request Mr. Soble stated he had to write Dr. Twyner a number of times to get the doctor to write a report to submit to the AUSTIN V. P.I.E. NATIONWIDE PAGE 4 insurance carrier in order for claimant to begin receiving his temporary total disability benefits. On or about January 10, 1987, Mr. Soble received a check from the insurance carrier for the temporary total disability benefits that were due and contacted claimant to report to the office to sign the check. When claimant reported, claimant objected to paying Mr. Soble any fee on the belief he had done nothing to deserve a fee. Mr. Soble stated the fact that claimant received any benefits at all was due to his work and that if his work helped to generate the temporary total disability benefits, he was entitled to his fee according to the contract. Since claimant refused to endorse the check, the check was "ripped up" and returned to the insurance carrier. Pursuant to Soble exhibit 2, Mr. Soble states he worked 24 hours on claimant's case and at an hourly rate of $150 plus copying charges and postage, he is entitled to a fee of $3,826.46. Mr. Soble also lists as expenses $252 for referral to Kevin Freebern, D.C., for treatment, $265 for referral to Raymond Dasso, M.D., and $80 for referral to Thomas Dhanens, Ph.D., (no show). APPLICABLE LAW AND ANALYSIS 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 or appellate court, the attorneys' fee is subject to the approval of a judge of the court. In Workmen's Compensation Law, Rule and Regulations, 1941, former Industrial commissioner John T. Clarkson wrote at 41: The fair interpretation of this section of the law imposes the duty upon the Commissioner to determine what may be a fair and reasonable charge of an attorney fee for services rendered an injured employee in Workmen's Compensation matters and those of a physician, which necessarily means the Commissioner's conclusions must be based upon the required service and all facts bearing upon what is a fair and reasonable fee. It needs no suggestion to show that the Commissioner should not permit the financial condition of the injured employee to control or materially influence his judgment, for the reason that may and probably would in many important cases prevent the injured employee from obtaining the benefits of an experience and competent lawyer..... True, the Commissioner must not shut his eyes and regard the case as one prosecuted for the benefit of the attorney, but it is fair to say that the better class of attorneys will not ordinarily overcharge for their services thus rendered. If they do, the Commissioner in justice within the law should not hesitate to disallow any excessive part of the charge. AUSTIN V. P.I.E. NATIONWIDE PAGE 5 It is clear claimant had the benefit of the hard work of many individuals in trying to secure his temporary total disability benefits which were never really in dispute. Mr. Soble obviously rendered services which are a benefit to claimant; likewise, the efforts of Mr. Lyman were undoubtedly important. It cannot go without note that at no time did the employer's insurance carrier deny liability on the claim but were merely waiting for appropriate documentation to completely process the claim. It is unfortunate that such a formality was necessary but, by the same token, it is recognized that that may be essential to the reasonable flow of business. It is also unfortunate that Mr. Soble elected to act in such an unreasonable manner by tearing up the check once it arrived. One would,be hard pressed to conclude that doing so is providing a service to a client. The undersigned concludes that the fee sought by mr. Soble is not a fair and reasonable charge for services rendered, that the fee is excessive and not commensurate with the services rendered. Therefore, in accordance with the words of former Commissioner Clarkson, the undersigned should not hesitate to disallow any excessive part of the charge. Clearly, services were rendered to the claimant in this case and just as clearly, Mr. Soble is entitled to some fee therefor. Based on all the evidence, it is found that Mr. Soble is entitled to a fair and reasonable fee of $250 for services rendered. FINDINGS OF FACT Wherefore, based on all of the evidence presented, the following findings of fact are made: 1. Claimant sustained an injury on May 4, 1987 while driving for P.I.E. International. 2. Claimant contracted for services to prosecute a claim as a result of his injuries with Attorney Peter Soble. 3. Claimant also sought help from the business agent of his local Teamsters Union in securing temporary total disability benefits. 4. The insurance carrier for claimant's employer did not deny liability at any time but was waiting for compliance with their reporting procedures before commencing payments. 5. Once there was compliance with the reporting procedures payments were promptly rendered to claimant. 6. Peter Soble is entitled to a fee for services rendered. 7. $250 is a fair and reasonable fee to Peter Soble for services rendered. CONCLUSION OF LAW Therefore, based on the principles of law previously stated, the following conclusion of law is made: Pursuant to Iowa Code section 86.39, $250 is a fair and AUSTIN V. P.I.E. NATIONWIDE PAGE 6 reasonable fee for services rendered by Peter Soble to claimant in this matter. ORDER THEREFORE, IT IS ORDERED: Pursuant to Iowa Code section 86.39, a fee in the amount of two hundred fifty dollars ($250) for.services rendered by Peter Soble to claimant is approved. Signed and filed this 13th day of December, 1988. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Thomas M. Wertz Attorney at Law 4089 21st Ave SW Suite 114 Cedar Rapids, IA 52404 Mr. Peter M. Soble Attorney at Law 505 Plaza Office Building Rock Island, IL 61201 1000 Filed December 13, 1988 DEBORAH A. DUBIK BEFORE THE IOWA INDUSTRIAL COMMISSIONER SID AUSTIN, Claimant, File No. 846126 vs. P.I.E. NATIONWIDE, A T T 0 R N E Y Employer, F E E and D I S P U T E CIGNA, D E C I S I 0 N Insurance Carrier, Defendants. 1000 Claimant sought advice of attorney in securing temporary total disability benefits. Attorney filed petition and there was no dispute as to defendants liability nor that claimant was entitled to the benefits he sought but rather there was a question of a doctor's report. Claimant, in addition to seeking the advice of counsel, also sought assistance from his union representative. Claimant eventually received $5,000 in temporary total disability benefits and objected to giving any fee to the attorney as he did not feel the attorney had done anything to warrant a fee. Attorney therefore tore up the check, returned it to defendants and brought a claim for attorney fees based on an hourly fee totaling $3,826.46. It was held that attorney did render services to the claimant and the attorney was entitled to a fair and reasonable fee of $250 for services rendered. Page 1 before the iowa industrial commissioner ____________________________________________________________ : ANGIE AYALA, : : File Nos. 728337 Claimant, : 846131 : vs. : : D E C I S I O N DEPARTMENT OF HUMAN SERVICES, : : O N Employer, : : A P P L I C A T I O N and : : F O R STATE OF IOWA, : : P A R T I A L Insurance Carrier, : Defendants. : C O M M U T A T I O N : ___________________________________________________________ On July 24, 1990, Angie Ayala ( claimant) filed a petition for a partial commutation as a result of an injury to claimant's back occurring on March 3, 1983 and aggravated on June 5, 1986. The Iowa Department of Human Services (DHS) was identified as employer and the State of Iowa (State) was identified as insurer for DHS (collectively defendants or the State). On March 26, 1991, these matters came on for hearing in Des Moines, Iowa. The parties appeared as follows: the claimant in person and by her counsel Harry Dahl of Des Moines, Iowa and DHS and the State by their counsel Assistant Attorney General, Charles Lavorato of Des Moines, Iowa. The record in this proceeding consisted of the following: 1. The live testimony of the claimant. 2. Joint exhibits 1-3 and 5-7. stipulations The parties stipulated to the following matters for both injuries at the time of the hearing: a. An employer-employee relationship existed between claimant and employer at the time of the alleged injury. b. The claimant sustained an injury on May 1,1983 and June 5, 1986, which arose out of and in the course of employment. c. The injuries caused permanent total disability. d. The extent of entitlement is 100 percent industrial disability. e. The rate of compensation, in the event of an award, is $168.26 per week. Claimant is married and has no dependants. She is entitled to two exemptions. f. Entitlement to medical benefits is not in dispute. Page 2 g. There are no bifurcated claims. Issue The only issue for resolution is whether claimant's request for a partial commutation should be granted so that claimant can pay for remodeling work for her house and pay for a van. preliminary matters At the outset of the hearing, the State objected to the admission of Exhibits 6 and 7 on the ground that claimant had failed to seasonably supplement answers to interrogatories. Exhibit 6 consists of contractor's estimates for remodeling claimant's house. Additionally, Exhibit 6 contains the price sheet for the van that claimant purchased. Exhibit 7 consists of correspondence that shows that claimant's medical bills were not timely paid by the State and that claimant had to request reimbursement for travel expenses to Minneapolis rather than use a travel advance. During the course of the hearing the State raised the same objection to some of claimant's testimony regarding the modifications made to claimant's home and the cost. The State pointed to three interrogatories that were not supplemented prior to the close of discovery. Interrogatory 9 requested that claimant provide each and every fact that claimant was relying on to support her petition for commutation. Interrogatory 10 asked claimant to identify all person who had knowledge about the claim for commutation asserted by claimant. Finally, Interrogatory 11 asked claimant to describe every document that the claimant was relying on in requesting a commutation. Claimant answered all of these interrogatories. However, claimant did not provide the name of contractors who had supplied claimant with estimates for the remodeling work until March 4, 1991. The price list for the van was supplied at the same time. Exhibit lists were due in this matter on March 10, 1991. Discovery closed on March 1, 1991.(1) The claimant did not supplement any of her interrogatory responses prior to the hearing. However, the State did have the names and address or telephone number of the contractors and the van dealership on the Monday after discovery closed in this matter. Additionally, the State knew how much the van cost on that date and how the van was equipped. Finally, the State knew that claimant had purchased material to repair and replace floor coverings, the kitchen and windows by March 4, 1991. The documents included in Exhibit 7 had been provided to the State by claimant or were included in the State's own records, evidenced by the carbon copy addressees and addressees of (1). The sequence of the timing of the delivery of these documents to the State shows that March 1, 1991 was a Friday. March 4, 1991 was a Monday. Pursuant to 343 IAC Rule 4.13, service by mail under this rule is complete upon mailing. Technically, if claimant mailed this material to the State, she complied with the service rules of the Division, and the material was served within the discovery period. There is no evidence in the record regarding the method of service however. Page 3 certain correspondence which included Richard Andrews, Mr. Lavorato and other individuals in the Iowa Department of Personnel. The Iowa Rules of Civil Procedure have been adopted by the Industrial Commissioner for use in proceedings before the agency. See, rule 343 IAC 4.35. If the Rules of Civil Procedure are inconsistent with the rules of the Division of Industrial Services, the administrative rules will take precedence. See, rule 343 IAC 4.35. Included therein are Rules 121-134 for discovery. Iowa R. Civ. P. 122 (d) requires a party to seasonably supplement the responses to discovery in the following instances: a. Where the responding party knows the identity and location of persons having knowledge of discoverable matters; b. The responses were incorrect when made, or; c. The party knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is a knowing concealment. With regard to Exhibit 6, the State is correct that claimant failed to seasonably supplement her interrogatory answers regarding persons who had knowledge of the claimant's claim and a description of the documents included in Exhibit 6. Claimant should have notified the State that she had obtained estimates for the repair work on her house within a reasonable time after the estimates were obtained and certainly before March 4, 1991, when claimant had that information in her possession at the time that the interrogatories were completed or the information was obtained shortly after the interrogatories were completed.(2) Likewise, claimant should have advised the State that she was proceeding with repair work in the kitchen, the purchase and installation of replacement windows and the purchase of the van. Claimant's actions are sanctionable for this failure. See, Miller v. Bonar, 337 N.W.2d 523, 527 (Iowa 1983). Implicit in the failure to abide by the requirements of Iowa R. Civ. P. 122(d) are sanctions for noncompliance such as exclusions of evidence, continuance or other actions that the Division deems appropriate. Miller, 337 N.W.2d at 527; M-Z Enterprises Inc. v. Hawkeye-Security Insurance Company, 318 N.W.2d 408, 414 (Iowa 1982). Consequently, Exhibit 6 will be excluded as part of the evidence in this case and the State's objection will be sustained. With regard to Exhibit 7, claimant answered that she had already provided documents to the State regarding medical bills and communication with claimant's doctor regarding the progress of her case. The only documents that (2). Claimant had information regarding the repair and replacement costs for her home available in March of 1988. Additionally, claimant had the information regarding the van available in March of 1988. Claimant had receipts for other items purchased in June of 1989, October and November of 1990 and March of 1991. All of these items appear to have been purchased for home repair and replacement. Page 4 were not included appear to be the documents in Exhibit 6 that have already been excluded. Moreover, there is no evidence that the State has been prejudiced by the correspondence included in Exhibit 7. Consequently, Exhibit 7 will be included as part of the evidence of this case. The State's objection will be overruled. With regard to claimant's testimony, claimant did not specifically testify from the material contained in Exhibit 6. Claimant knew from her own experience what repairs had been done to her home and how much she and her husband had spent on the van. This information was made known to the State in the interrogatory answers. The claimant indicated that she had specific information regarding the facts supporting her claim for commutation. There was no information to supplement. Additionally, the State cannot show prejudice. The State had an opportunity to test claimant's statements on cross examination at the time of the hearing. Moreover, the State's claim that it was surprised or had insufficient time to obtain an expert to determine the reasonableness or necessity of the modifications claimant made to her home, is without merit. In the exchange of documents and medical records, (Ex. 5) there was a letter from Dr. Akins dated January 24,1990, wherein Dr. Akins had agreed that the van and modifications to claimant's home were necessary to accommodate her condition. After the State received this letter, it had ample time to retain an expert to test not only the general proposition that the modifications and van were necessary regardless of the amounts spent, but also to opine as what modifications were necessary and what type of van was required to transport claimant comfortably. The State did not retain such an expert. Consequently, since the State has shown no prejudice and claimant had no duty to supplement her interrogatories in connection with her direct testimony, the State's objection will be overruled. FINDINGS OF FACT After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. At the time of the hearing on this matter claimant was approximately 66 years old. On May 1, 1983, claimant injured her back at work after she fell. Despite conservative treatment, in 1986, claimant underwent major back surgery for a posterior fusion with a Harrington rod insertion from L3 to the sacrum. Unfortunately, this first back surgery was not successful and the fusion failed. Subsequently, claimant was referred to the institute for low back care in Minneapolis, Minnesota for further evaluation. At the time of her initial evaluation, William G. Akins, Jr., M.D., indicated that claimant represented a failed back surgery syndrome. Additionally, she had other difficult problems which included the nonunion of the surgical fusion from L3 to the sacrum, osteoporosis, evidence of motion around the Harrington rods and spondylolisthesis. Finally, Page 5 claimant was suffering from depression due to her chronic pain condition. Subsequently, claimant underwent another fusion surgery. Apparently, this surgery did not take either. As late as October 25, 1990, Dr. Akins had indicated that claimant's bone fusion is still not solid. 2. Dr. Akins has described claimant's current condition as frail and lacking basic body strength for activities of daily living. He believes it is appropriate that she add modifications to her home to assist her in the activities of daily living. Additionally, Dr. Akins believes that modifications that add safety features to the home would be necessary to insure claimant's mobility as she grows older. Additionally, Dr. Akins believes that a van rather than a four door sedan will offer claimant more comfort in her travel. Claimant continues to travel to Minneapolis for follow-up visits on her back. 3. As a result of claimant's lack of mobility, claimant and her husband of 44 years sold their home in Indianola and moved to Des Moines. Claimant's home in Indianola was a two story with bedrooms on the second floor and the bathroom on the first floor. Due to the claimant's condition, she is no longer able to negotiate stairways. A ranch house with a level floor plan is more appropriate to her abilities. Claimant and her husband have purchased such a home. However, the home was in need of certain modifications in order to accommodate claimant's disabilities. In claimant's view, these modifications included putting grab bars around the toilet and in a shower in the bathroom, a high seat on the toilet to accommodate claimant's disabilities, carpeting throughout the home to prevent tripping, a ceiling fan to take moisture out of the floor and carpet, and replacement windows throughout to avoid drafts and to reduce heating expenses. Finally, claimant would also like to put siding on her house, however claimant believes that the cost is prohibitive. 4. On a monthly basis, claimant has approximately $2,359.82 available to her in spendable income. This income is not taxable as it is derived from social security benefits, the state employees retirement fund, and workers' compensation benefit payments. Workers' compensation benefits on a monthly basis total $729.13. On the expense side, claimant's expenses total approximately $2,177 on a monthly basis.(3) This leaves an excess of $182 per month as spendable income for claimant and her husband. Claimant's assets include a savings account that ranges from between $15,000 and $20,000, her home which has an equity of approximately $14,000, and insurance policies with a value (3). This figure was calculated based upon claimant's examination and crossexamination at the time of hearing. Claimant indicated that various creditors had been paid at the time of the hearing including Younkers, Sears, American Express, Carpetland, and others. Omitting those creditors from the list included in interrogatory number 1, Ex. 2, results in approximately $2,177 in expenses on a monthly basis. Page 6 of approximately $91,000. It is unclear from the response to interrogatory number 7 whether this amount represents the face value for the policies or whether this is a cash value for the policies. Additionally, claimant owns a van which has an estimated value of $7,000 and personal property that is worth $5,000. Claimant's total net assets equal $134,000. Claimant's long and short term liabilities include indebtedness to Brenton State Bank for the van that was purchased, and Knudsen Mortgage Company for the mortgage payment on claimant's house. At the time of hearing, the mortgage balance on claimant's home was approximately $44,000. The house was purchased for $54,000 with a $10,000 down payment. Claimant and her husband continue to owe consumer indebtedness to Visa, Amoco and Petersen's. The total of claimant's short term consumer indebtedness is approximately $400. 5. Additionally, claimant continues to pay 20 percent of nonwork related medical bills for herself and her husband. Additionally, claimant's insurance covers most if not all the cost of claimant's prescription drugs. Apparently, claimant makes monthly payments to medical providers which total approximately $86 per month. These debts would also be added to the long term indebtedness that claimant carries. Her accumulated long term medical cost totals approximately $900. Claimant's net liabilities total $57,000, thereby leaving claimant with a net worth of approximately $75,000. 6. Claimant's husband has recently had a slight stroke and is not earning any income. 7. Claimant testified that she and her husband purchased the van for $17,000.00. Claimant also testified in response to questions by the State and indicated that the van had certain amenities that came as standard equipment on the vehicle. These included, four captain chairs, a fold down converter bed, vista bay windows, a black and white TV, a TV booster, a radar detector, an overhead console with switch panel, a snack tray, a roof rack, a CB, and a rear game table. Claimant and her husband shopped around for the purchase of this van and found that the best price they could obtain was from Granger Motors. 8. A review of exhibit 7, and claimant's testimony at the time of hearing, indicates that the State has been slow in reimbursing claimant for medical expenses. Additionally, claimant testified that the State will not advance travel money for the claimant and her husband to travel to Minneapolis to the institute for low back pain. The State does reimburse claimant after she has returned from these trips when the appropriate receipts have been submitted. 9. In the application for partial commutation, the claimant has requested $25,179.74 to cover the expenses of the van purchased and remodeling for claimant's home. Claimant proposes that the partial commutation will be taken from the end of the award for permanent and total disability. Page 7 CONCLUSIONS OF LAW The only issue for resolution is whether claimant's request for a partial commutation should be granted so that claimant can pay for remodeling work for her house and pay for a van. The State urges that the changes to claimant's home and the purchase of a van to transport claimant from place to place and to her medical appointments in Minneapolis are not medically necessary for the claimant's daily living. The claimant contends that she must only make a showing that she proposes to make reasonable use of proceeds from a commutation. Once that showing is made, the commutation should be approved. Iowa Code section 85.45 (1991) provides that a commutation may be ordered when the commutation is shown to be in the best interests of the person or persons entitled to the compensation or that periodical payments as compared to a lump sum payments will entail undue expense for the employer. Diamond v. The Parsons Co., 129 N.W.2d 608, 616 (1964). The factors relied on in determining if a commutation is in the claimant's best interests include: the claimant's age, education, mental and physical condition, and actual life expectancy; the claimant's family circumstances, living arrangements, and responsibilities to dependents; the claimant's financial condition, including all sources of income, debts, living expenses; and the reasonableness of claimant's plans for the commuted funds and claimant's ability to manage the funds or arrange for someone else to manage them. Dameron v. Neumann Bros., Inc., 339 N.W.2d 160, 164 (Iowa 1983). Ultimately, the analysis that is employed in the decision whether to allow a commutation uses as its fundamental touchstone the best interests of the claimant. Within that context, a benefit-detriment analysis is employed balancing the above recited factors with the claimant's preference and the benefits to the worker of receiving a lump sum payment against the potential detriments that would result if the worker invested unwisely, spent foolishly, or otherwise wasted the fund, to the point where the fund no longer provided the wage substitute intended by the workers' compensation law. Dameron, 339 N.W.2d at 164-65. The Division does not act an unyielding conservator of claimant's property and disregards the claimant's desires and reasonable plans for the use of the commuted funds. Diamond, 129 N.W.2d at 617; Dameron, 339 N.W.2d at 163-64. The Division has consistently followed the rationale in these cases and has used a reasonableness test to approve or disapprove commutations. Paulsen v. Central States power, LTD, II Iowa Industrial Commissioner Report 304 (App. 1982); Finn v. Gee Grading and Excavating, Inc., II Iowa Industrial Commissioner Report 152, 153 (App. 1981); Smith v. Fegles Power Systems, Inc., IV Iowa Industrial Commissioner Report 338, 339 (App. 1984). Page 8 There is no requirement that the claimant show that the use of the commuted amounts are necessary for the claimant's health, rehabilitation or otherwise. Paulsen, II Iowa Industrial Commissioner Report at 304. (Defendants equated claimant's best interest with need. This equation may work in some cases but not in others. If one needs a thing, the obtaining of it is in the individual's best interest; however, if one does not need a thing, it does not follow that the obtaining of it is not in one's best interest). A requirement to show necessity is more akin to the strict standards for lump sum settlements urged by Professor Larson. See, 3 Larson's, Workmen's Compensation Law, Section 82.71 at 15-1243(1989)(4). This more restrictive requirement has been specifically rejected by the Iowa Supreme Court, however. Dameron, 339 N.W.2d at 164-65; Dorman v. Carroll County, Iowa, III Iowa Industrial Commissioner Report 71, 72 (1982). There is no compelling reason in this case to stray from the precedent established by these cases. Claimant is seeking a commutation in the amount of approximately $25,000. Claimant plans to use the money to pay bills. Specifically, claimant wants to pay off a loan for the purchase of a van and she wants to complete repair and replacement projects for her home. Claimant also has some consumer bills to pay. In light of claimant's present circumstances, this is a reasonable plan for the use of the commuted amounts and is in the claimant's best interest since payment of the outstanding indebtedness will provide claimant with peace of mind and the remaining amounts can be used to make claimant's home more comfortable and economical to operate. Accord, Larson v. Haag Drug Company, 1 Iowa Industrial Commissioner Report 210, (1980) (Claimant awarded a partial commutation to pay bills and for replacement windows for her home). At the time of the hearing, claimant was 71 years old and permanently disabled. Claimant continues to suffer from a chronic pain condition and depression stemming from her injury. Claimant's income and expenses leave only a nominal amount left over every month as excess spendable income. At times, claimant's expenses exceed her income. Claimant has shown that she is fiscally responsible. Despite the constant pain in claimant's back and her depression, she has managed to save between $15,000 and $20,000 dollars. While (4). Larson's view is that lump sum settlements should be used only in exceptional circumstances where it can be demonstrated that the purpose of the Act will best be served by a lump sum award. 3 Larson at 15-1244. Moreover, Larson believes that lump sum settlements are best used when the rehabilitation of the worker would be promoted. Larson indicates that it is wrong to use lump sums to enable a claimant to pay debts. 3 Larson at 15-1258. This view has been rejected by the Iowa Supreme Court. Diamond, 129 N.W.2d at 616 (Payment of bills from the proceeds of commutation is a commendable purpose and a reasonable use of commuted sums). Page 9 claimant is frail, she is not feeble. There is no evidence that claimant is going to squander the commuted amount of benefits. To the contrary, claimant's testimony showed that she is a careful shopper and a careful money manager. Finally, the purpose for which she seeks this commutation has been endorsed by her doctor. Consequently, Claimant's partial commutation will be granted. order THEREFORE, it is ordered: 1. A partial commutation is granted in the amount of twenty-five thousand one hundred seventy-nine and 74/100 dollars ($25,179.74) from the last portion of claimant's award. Claimant is directed to prepare a current Form 9A in conformance with this decision reflecting the current status of claimant's claim and amounts to be commuted so that the award equals twenty-five thousand one hundred seventy-nine and 74/100 dollars ($25,179.74). A revised Form 9A should be submitted within 15 days of the date of this order. 2. The State's objection to the admission to Exhibit 6 is sustained. The State's objection to the admission to Exhibit 7 is overruled. The State's objection to exclude certain testimony is overruled. 3. The costs of this action shall be assessed to the State pursuant to rule 343 IAC 4.33. 4. The State shall file claim activity reports as required by rule 343 IAC 3.1. Signed and filed this ____ day of August, 1991. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Harry W Dahl Attorney at Law 974 73rd Street Ste 16 Des Moines Iowa 50312 Mr Charles S Lavorato Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines Iowa 50319 5-3303 Filed August 2, 1991 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : ANGIE AYALA, : : File Nos. 728337 Claimant, : 846131 : vs. : D E C I S I O N : DEPARTMENT OF HUMAN SERVICES, : O N : Employer, : A P P L I C A T I O N : and : F O R : STATE OF IOWA, : P A R T I A L : Insurance Carrier, : C O M M U T A T I O N Defendants. : ___________________________________________________________ 5-3303 Claimant showed that payment of bills for the purchase of a van, consumer debts and repairs to her home was a reasonable use for commuted funds. Claimant is 71 years old. She is totally disabled. She is suffering chronic pain from two failed back surgeries. Payment of these bills will provide claimant with peace of mind. Claimant was not required to show medical necessity in order to be successful on her request for a partial commutation. Page 1 51106; 1108.20; 51401; 51402.20; 51402.30; 51402.40; 51402.60; 51801; 51802; 51803; 1807; 2204; 2206; 2209; 52501; 52502; 52700 Filed July 24, 1990 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : LORA ELLSBURY, : : Claimant, : File Nos. 846145 & 846156 : vs. : : A R B I T R A T I O N OSCAR MAYER FOODS CORPORATION,: : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 51106; 1108.20; 51401; 51402.20; 51402.30; 51402.40; 51402.60; 51801; 51802; 51803; 1807; 2204; 2206; 2209; 52501; 52502; 52700 With respect to cumulative injury on April 22, 1987, claimant did prove injury, but did not prove causal connection or entitlement to temporary disability benefits, permanent disability benefits, any unpaid medical benefits, or an Iowa Code section 85.39 examination. With respect to the fall injury on May 4, 1987, claimant did prove injury. Claimant proved causal connection and entitlement to temporary and permanent disability benefits. She did not prove that the injury was the cause of her suicide attempt or her hospitalization for Bulimia Nervosa. Claimant awarded an independent medical examination for her physical injuries. She was denied an award for an independent medical examination for her alleged, but unproven work caused psychological injuries. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LORA ELLSBURY, : : Claimant, : File Nos. 846145 & 846156 : vs. : : A R B I T R A T I O N OSCAR MAYER FOODS CORPORATION,: : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Lora L. Ellsbury, claimant, against Oscar Mayer Foods Corporation, employer and self-insured defendant, for benefits as the result of two alleged injuries, one of which occurred on April 22, 1987, allegedly from repetitive work, and the other which occurred on May 4, 1987, when claimant allegedly fell from a ladder and injured her back. A hearing was held in Des Moines, Iowa, on May 2, 1990, and the case was fully submitted at the close of the hearing. Claimant was represented by Wayne H. McKinney, Jr. and Robert E. McKinney. Defendant was represented by Harry W. Dahl. The record consists of the testimony of Lora L. Ellsbury, claimant; Liz Barstad, R.N., rehabilitation specialist; claimant's exhibits A through N; and defendant's exhibits A through Q. The deputy ordered a transcript of the hearing. Both attorneys submitted excellent briefs. Claimant's deposition was introduced into evidence by both parties and there is little or no reason to have it introduced into evidence at all when claimant appeared and testified at the hearing and was available for both direct and cross-examination. A few other exhibits were duplicated. A number of the exhibits were not essential to and did not contribute to the determination of the issues in this case. Examining unnecessary exhibits hinders the decision process and delays the time it takes to make a decision. stipulations The parties stipulated to the following matters at the time of the hearing: That an employer-employee relationship existed between claimant and employer at the time of both alleged injuries. That claimant first lost time from work on May 8, 1987. That the rate of compensation, in the event of an award, is $147.62 per week. Page 2 That the provider of medical services and supplies would testify that their charges were reasonable and were for reasonable and necessary medical treatment for the alleged work injuries. That defendant seeks no credit for employee nonoccupational group health plan benefits paid to claimant prior to hearing and defendant withdrew this issue, which is shown on the hearing assignment order, at the time of hearing. That defendant paid claimant 12 1/7 weeks of workers' compensation benefits prior to hearing at the rate of $147.62 per week. That there are no bifurcated claims. That the issue of whether claimant is an odd-lot employee, as shown on the hearing assignment order, was withdrawn by claimant at the time of the hearing. issues The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on April 22, 1987 and another injury on May 4, 1987 which arose out of and in the course of employment with employer. Whether either injury was the cause of either temporary or permanent disability. Whether claimant is entitled to either temporary or permanent disability benefits for either injury, and if so, the nature and extent of benefits to which claimant is entitled. Whether claimant is entitled to medical benefits for either injury. Whether claimant is entitled to an independent medical examination pursuant to Iowa Code section 85.39 for either injury. findings of fact alleged injury of April 22, 1987 injury Claimant did sustain an injury which arose out of and in the course of employment with employer on April 22, 1987 to her left shoulder and left wrist and her right hand and right fingers which arose out of and in the course of employment with employer. Claimant started to work for employer on June 19, 1987 as a ham boner. She described repetitive hand and arm movements to perform this job. She was required to complete Page 3 one ham approximately every 30 seconds. She first noticed trouble in her left shoulder in February of 1987. She used her left arm to throw a piece of meat over her left shoulder in the ham boning process. Shortly thereafter she experienced difficulties in her left hand and wrist which she used to hold the ham while she used a knife in her dominant right hand. Then she had complaints in both wrists and her right third finger and right little finger locked. These injuries were reported to the foreman, company nurse, and claimant was sent to the company physicians, Kurt Klise, M.D., Steven Sohn, M.D. and Arnis Grundberg, M.D. Dr. Grundberg, an orthopedic surgeon, diagnosed (1) radial nerve irritation right wrist; (2) flexor synovitis, right ring and little fingers; (3) history of bursitis, left shoulder; and (4) flexor synovitis of the left wrist. Both Dr. Sohn and Dr. Grundberg instructed claimant to quit her job in order to prevent a permanent injury as a result of this repetitive trauma which occurred on April 22, 1987. Claimant refused to quit and was terminated by employer based upon the statements of Dr. Sohn and Dr. Grundberg that claimant was not suited to perform her current job as a ham boner and that if she continued to perform it she would suffer permanent injury. From the foregoing evidence and other evidence in the record it is determined that claimant sustained an injury on April 22, 1987 to her left shoulder, left wrist, right wrist and right third and little fingers which arose out of and in the course of employment with employer. Defendant called no witnesses and introduced no evdience that claimant did not receive a work-related injury on this date. causal connection - temporary disability - entitlement It is determined that claimant did not sustain any temporary disability from this injury of April 22, 1987. Claimant granted in her testimony that she did not lose any time from work due to this injury. Dr. Sohn returned her to work on a 50 percent status and later he returned her to work on light duty, but she was always returned to work by Dr. Sohn. Claimant was returned to work on light duty by Dr. Grundberg on May 8, 1987, but she was terminated by employer at this time. Claimant was never taken off work by any physician for the injury of April 22, 1987. Dr. Sohn and Dr. Grundberg released her to her former job, light duty, and claimant was provided light duty and therefore, lost no time from work due to this injury. Therefore, the injury is not the cause of temporary disability and claimant is not entitled to any temporary disability benefits for the injury of April 22, 1987. causal connection-permanent disability-entitlement Neither Dr. Sohn nor Dr. Grundberg determined that claimant had any permanent impairment to either upper extremity due to the injury of April 22, 1987. Nor did any of the other physicians indicate that claimant sustained any permanent impairment to either upper extremity as the result of this injury. On the contrary, the evidence indicates that claimant did not sustain any permanent impairment due Page 4 to this injury. The fact that Dr. Sohn and Dr. Grundberg recommended that claimant quit her job because she was unsuited for it was not because she had sustained any permanent physical impairment, but the reason that these doctors made this recommendation was to prevent a future permanent impairment if she continued to perform the ham boning job. Dr. Bashara said there was no permanent impairment due to the injury to her hands (ex. D, p. 4). Therefore, it is determined that the injury of April 22, 1987 did not cause any permanent impairment or disability and claimant is not entitled to any permanent disability benefits for this injury. medical benefits The evidence does not disclose any claim for medical benefits which are unpaid as a result of the injury of April 22, 1987 to claimant's upper extremities. Therefore, no award of medical benefits is made. Iowa Code section 85.39-independant medical examination The evidence does not disclose that claimant requested or was given a separate independent medical examination for the injury of April 22, 1987, to her upper extremities. Therefore, no award is made for an independent medical examination with respect to this injury. alleged injury of may 4, 1987 injury It is determined that claimant did sustain an injury on May 4, 1987, which arose out of and in the course of her employment with employer, when she fell while descending a ladder performing light duty and landed on her left arm and hip and injured her back. Claimant described this injury in her testimony. The injury was reported to the foreman, the company nurse and claimant was taken to the hospital by employer and treated by Dr. Klise. Claimant was treated at Dallas County Hospital and was discharged the same day, May 4, 1987. On May 9, 1987, she received a CT scan of the lumbar spine requested by Dr. Klise which was unremarkable except for some posterior bulging of the annulus at L-5, S-1 without paresthesias or radiation of pain down her legs. Defendant did not dispute that a back injury occurred on this date. Therefore, it is determined that claimant did sustain an injury on May 4, 1987, which arose out of and in the course of employment when she fell from a ladder and injured her lumbar spine. causal connection-temporary disability-entitlement Again, claimant was returned to work light duty with no Page 5 knife work until May 11, 1987, but Dr. Klise did not take claimant off work due to this injury. Claimant acknowledged that she did work light duty until she was terminated on May 8, 1987. Dr. Sohn estimated she would be temporarily disabled for approximately four weeks and employer actually paid claimant for temporary disability benefits from May 8, 1987 to July 31, 1987, a period of 12.143 weeks (def. ex. O, p. 27). Claimant is awarded temporary disability benefits for this period of time (def. brief pages 3 & 4). Therefore, claimant is entitled to 12.143 weeks temporary disability benefits for the injury of May 4, 1987. causal connection-permanent disability-entitlement Jerome G. Bashara, M.D., evaluated claimant on January 5, 1988, and reviewed the x-rays and CT scan from Dallas County Hospital which disclosed a moderately bulging disc at L-5, S-1, which he said was related to the fall on May 4, 1987. Dr. Bashara stated, "I would give the patient a 5% permanent partial physical impairment of her body as a whole related to her L5-S1 disc injury." He recommended physical therapy, weight reduction and restricted claimant from lifting over 25 pounds. He also added, "No excessive bending, stooping or twisting of her lower back." (claimant's exhibit D, page 4). Randy K. Winston, M.D., examined claimant on August 25, 1988. He said that she suffered from myofascial strain which is now chronic and recurrent. He specified that claimant sustained a 3 percent permanent functional impairment as a result of the back injury on May 4, 1987 (defendant's ex. I, p. 2). Peter D. Wirtz, M.D., examined claimant on May 8, 1988. His physical examination demonstrated only tenderness in the left lateral lumbar area from L5 to L3. Otherwise, claimant demonstrated normal function and no neurological findings. He diagnosed musculoskeletal strain of the lumbar spine caused by this injury. He concluded, "She has no functional limitation in these areas nor does she have any physical impairments." (def. ex. C, p. 2). Claimant was 19 years old at the time of the injury. She has a high school education. Her prior employments were corn detasseler and dietary aide in a nursing home. Claimant denied and there was no evidence of previous injury or illness to her lumbar spine. A functional capacity examination was performed on July 14, 1988 by Judith Halverson, L.P.T. Therapist Halverson determined that claimant could lift 10 pounds frequently and up to 20 pounds infrequently. Her sitting toleration was 15 minutes and her standing toleration was 18 minutes. She pointed out that claimant had gained 40 pounds since the injury, recommended an exercise and weight reduction program and determined that a work hardening program would be beneficial to address her physical demand needs (def. ex. P, pp. 1 & 2 & 2-25). Page 6 Claimant's young age reduces the effect of her permanent disability. McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (Appeal Decision April 28, 1989); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979). Claimant has a high school education. She testified that she obtained good grades without a great deal effort. She has completed three quarters of study since this injury at the area community college and has demonstrated her ability to be trained for a number of new careers. Claimant's ability for retraining is a consideration in the determination of industrial disability. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 78 (1984). Defendant did provide claimant with vocational rehabilitation assistance in July of 1988 through Intracorp and more specifically, Liz Barstad, R.N., to arrange for the functional capacity examination and the work hardening program. She assisted claimant in obtaining grants and public assistance in order to enroll in the area community college. Barstad also advised and assisted claimant in finding employments in her community. Defendant did an excellent job of providing rehabilitation assistance to claimant. At the same time, claimant is foreclosed from performing medium and heavy work in the future and from returning to jobs that require excessive stooping, bending or lifting or prolonged standing and sitting. Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1984); Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (Appeal Decision January 30, 1979). No surgery was performed and none was recommended. Claimant has had no recent medical treatment and is taking no medications. Claimant is currently employed within her limitations as a security guard for a successor meat packing company at the same plant and also works certain evenings as a convenience store clerk. She was earning $6.36 per hour for employer when she was terminated. She was earning $5.90 per hour at the time of the hearing plus she had the additional earnings from the convenience store job. Claimant has sustained little, if any, actual earnings loss. From the foregoing evidence, and all of the factors used to determine industrial disability, and employing agency expertise [Iowa Administrative Procedure Act 17A.14(5)], it is determined that claimant has sustained a 10 percent industrial disability to the body as a whole caused by the fall injury of May 4, 1987 which injured her lumbar spine. Claimant is entitled to 50 weeks of permanent partial disability benefits. Page 7 It is determined that the suicide attempt through a drug overdose, on October 21, 1987, and claimant's severe eating disorder, which came to light in October of 1988, were not caused by the fall injury of May 4, 1987 or the repetitive injury to her upper extremities on April 22, 1987. Even though Gaylord Nordine, M.D., a psychiatrist; assisted by Gerald Catron, Ph.D., a clinical psychologist; and Dan Bruflodt, B.A.; determined that claimant's injuries and termination by employer exacerbated her previous personality dysfunction and has continued long enough to have acquired dysthymic features; nevertheless, Michael Taylor, M.D., another psychiatrist, controverted the testimony of Dr. Nordine. James Blessman, M.D., stated the eating disorders should be billed to Title XIX because it was not a work-related condition and not the responsibility of the workers' compensation carrier (def. ex. M, p. 137). Dr. Taylor pointed out that Dr. Nordine did not have available to him claimant's previous history of physical and domestic abuse from family members and sexual abuse from ex-boyfriends spanning her entire lifetime from the time of her adoption at the age of 2 weeks, until the present time. Suffice it to say that there is an abundance of evidence of domestic physical and emotional abuse to claimant by her mother and brother and sexual abuse by former boyfriends, including an attempted rape. Dr. Taylor alleged that much of the language used by Dr. Nordine was psycho-babble without true medical definition in medical and psychiatric parlance. Dr. Taylor testified that claimant's injuries and employment with employer did not exacerbate her long-standing problems (def. ex. A, p. 41). He said that Dr. Nordine's language is not consistent with current psychiatric nomenclature. Dr. Taylor testified that claimant's psychiatric condition was not sufficiently severe to interfere with the patient's ability to work productively or to make productive work impossible (def. ex. A, p. 44). Dr. Taylor testified, "I strongly disagree with it because she has no psychiatric condition which makes productive work impossible. Never has had, doesn't now." (def. ex. A, pp. 44 & 45). Dr. Taylor further stated, "She does not have any psychological problems which interfere with her ability to work." (def. ex. A, p. 45). In his report dated May 23, 1989, Dr. Taylor stated, "I find absolutely no indication of any causal connection between her work situation and/or the alleged injuries in April and May of 1987 and her current psychiatric condition." (def. ex. A, p. 54). In short, Dr. Nordine and his associates, contend that the employment injuries and employment termination exacerbated claimant's previous personality, psychological and psychiatric problems to the point where she made the suicide attempt in October 1987 and developed the eating disorder of Bulimia Nervosa which was discovered in October 1988. By contrast, Dr. Taylor testified that the suicide attempt was directly precipitated by the fact that claimant's boyfriend left her just a few hours before the suicide attempt. Dr. Taylor pointed out that claimant had the Bulimia Nervosa for three years prior to October 1988 Page 8 according to the statement that she gave to therapists in relating her history in October 1988. Dr. Taylor's opinion is determined to be the most accurate, reliable and best reasoned opinion in this case. It is supported by much of the other evidence in the case, both medical and nonmedical. Therefore, it is determined that the injuries of April 22, 1987 and May 4, 1987 were not the cause of claimant's suicide attempt in October 1987 or the eating disorder of Bulimia Nervosa that was discovered in October 1988. Consequently, claimant is not entitled to any permanent partial disability benefits for her alleged psychological injuries. medical benefits Since claimant did not prove that the suicide attempt or the Bulimia Nervosa were caused by these injuries, she is not entitled to recover the extensive medical expenses for treatment for these two conditions. iowa code section 85.39-independant medical examination Claimant is entitled to recover the examination fee of Dr. Jerome G. Bashara, M.D., in the amount of $550 for his independent medical examination (cl. ex. D, p. 9). Claimant is not entitled to recover the $320 charged by Dr. Nordine for his examination and the $240 charged by Dr. Nordine for his reports for the alleged, but unproven, work-caused psychiatric injuries. conclusions of law Wherefore, based on the evidence presented and the foregoing and following principles of law, these conclusions of law are made: That claimant did sustain an injury to her right and left upper extremities on April 22, 1987 which arose out of and in the course of employment with employer from performing repetitive work as a ham boner. Iowa Code section 85.3(1); McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). That claimant did not sustain the burden of proof by a preponderance of the evidence that this injury was the cause of either temporary or permanent disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945); Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955); Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2nd 167 (1960). That claimant is not entitled to either temporary or permanent disability benefits as the result of the injury of April 22, 1987. That claimant did not demonstrate that she was entitled to any unpaid medical expenses caused by the injury of April Page 9 22, 1987. That claimant did not sustain the burden of proof by a preponderance of the evidence that she is entitled to an Iowa Code section 85.39, independent medical examination, for the injury of April 22, 1987. That claimant did sustain the burden of proof by a preponderance of the evidence that she sustained an injury to her lumbar spine on May 4, 1987 which arose out of and in the course of employment when she fell from a ladder. That claimant did sustain the burden of proof by a preponderance of the evidence that the fall injury of May 4, 1987 was the cause of temporary disability from May 8, 1987 to July 31, 1987. That claimant is entitled to 12.143 weeks of temporary disability benefits for the fall injury of May 4, 1987, for the period from May 8, 1987 to July 31, 1987. That claimant did not demonstrate any unpaid medical expenses for the fall injury to her back which occurred on May 4, 1987 and therefore, is not entitled to any unpaid medical expenses for that injury. That claimant did sustain the burden of proof by a preponderance of the evidence that she is entitled to an Page 10 Iowa Code section 85.39 examination from Dr. Bashara for the fall injury of May 4, 1987 in the amount of $550. That claimant did not sustain the burden of proof by a preponderance of the evidence that the suicide attempt in October of 1987 and the eating disorder of Bulimia Nervosa, discovered in October of 1988, were caused by either the injury of April 22, 1987 to her upper extremities or the injury of May 4, 1987 to her lumbar spine. That claimant is not entitled to the medical expenses incurred for the suicide attempt and the treatment of the eating disorder. That claimant did sustain the burden of proof by a preponderance of the evidence that she sustained an industrial disability of 10 percent to the body as a whole caused by the injury to her lumbar spine on May 4, 1987. That claimant is entitled to 50 weeks of permanent partial disability benefits for the injury to her lower spine which occurred on May 4, 1987. order THEREFORE, IT IS ORDERED: That defendant pay claimant twelve point one four three (12.143) weeks of temporary disability benefits for the period from May 8, 1987 to July 31, 1987 at the rate of one hundred forty-seven and 62/100 dollars ($147.62) in the total amount of one thousand seven ninety-two and 55/100 dollars ($1,792.55) commencing on May 8, 1987. That defendant is ordered to pay to claimant fifty (50) weeks of permanent partial disability benefits at the rate of one hundred forty-seven and 62/100 dollars ($147.62) per week in the total amount of seven thousand three hundred eighty-one dollars ($7,381) commencing on May 4, 1987. That defendant is entitled to a credit of twelve point one four three (12.143) weeks of workers' compensation benefits paid to claimant prior to hearing at the rate of one hundred forty-seven and 62/100 dollars ($147.62) per week in the total amount of one thousand seven hundred ninety-two and 55/100 dollars ($1,792.55). That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendant is to pay to claimant or the provider of medical services five hundred fifty dollars ($550) for the independent medical examination of Dr. Bashara pursuant to Iowa Code section 85.39. Page 11 That the costs of this action, including the cost of the transcript, is charged to defendant pursuant to Division of Industrial Services Rule 343-4.33. 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 ____ day of July, 1990. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert McKinney Mr. Wayne McKinney, Jr. Attorneys at Law 480 6th St. Waukee, Iowa 50263 Mr. Harry W. Dahl Attorney at Law 974 73rd St. STE 16 Des Moines, Iowa 50312 Page 1 before the iowa industrial commissioner ____________________________________________________________ : RONALD COOTS, : : Claimant, : : vs. : : File No. 846265 CULLIGAN, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Ronald Coots against his former employer, Culligan, and its insurance carrier, Liberty Mutual Insurance Company. The claim is based upon a back injury which arose out of and in the course of employment with the employer. During the course of treatment for that injury, Coots was involved in an automobile accident. A third party claim resulted in a recovery to Coots in the amount of $80,000 before deducting attorney fees and expenses of litigation. The parties agreed that a contingent fee of 33 1/3 percent is fair and reasonable for attorney fees in the third party action. There is no current dispute between Coots and his employer and the insurance carrier with regard to his entitlement to healing period, medical expenses or permanent partial disability with it being stipulated that the amount of permanent partial disability is 30 percent. It was further stipulated that, after April 26, 1988, defendants paid claimant permanent partial disability compensation in the amount of $10,515.90, healing period compensation in the amount of $7,875.23 and medical expenses in the amount of $10,290.48. The total paid was $28,681.61. The primary issue in the case is determination of the amount that the employer and its insurance carrier are entitled to recover in fulfillment of their statutory right to subrogation provided by section 85.22 of The Code. It was stipulated that the employer and its insurance carrier are not entitled to reimbursement or subrogation for any benefits to which the claimant would have been entitled had the automobile accident not occurred. The employer and insurance carrier also seek a determination that the proceeds from the third party recovery entitle them to a Page 2 credit or offset against any future benefits which may become payable to Coots. The case was heard and fully submitted at Des Moines, Iowa on March 6, 1991. The evidence consists of joint exhibits A, B, C, D, E, F and H as well as testimony from Ronald Coots. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witness, the following findings of fact are made. Ronald Coots is a 45-year-old married man who injured his back while working for Culligan on February 9, 1987. Following a period of physical therapy, he was released to return to work without restrictions. At that time, his treating physician, David J. Boarini, M.D., an orthopaedic surgeon, reported that, while a CT scan showed a small herniated disc, Coots had no residual permanent impairment (exhibit A, pages 1-6; exhibit H-1, page 8). Coots apparently did reasonably well until March 1988 when he experienced an exacerbation of his symptoms and resumed physical therapy treatment. A CT scan was performed which showed additional herniation at the L5-S1 level on the left side of claimant's spine (exhibit A, pages 8-10). Dr. Boarini provided treatment in the form of medication and physical therapy. The records indicate that claimant's condition was improving with the treatment (exhibit H-2, page 69; exhibit H-1, pages 9 and 10). On April 26, 1988, while returning from a physical therapy treatment, Coots was rear-ended by a vehicle driven by Jack Leonard Hill and experienced an immediate exacerbation of his symptoms (exhibit H-2, page 81). The symptoms in claimant's neck and upper back resolved, but the increase in his low back discomfort did not. Dr. Boarini subsequently performed surgery on claimant's low back in which the L5-S1 disc was removed (exhibit A, page 15). The primary issue in this case deals with how much, if any, of the medical expenses, healing period and permanent partial disability compensation is attributable to the automobile accident and therefore a proper basis for subrogation from the third party recovery. Dr. Boarini first addressed the issue in a report dated December 5, 1989 when he stated: The question of whether his work accident or his motor vehicle accident are responsible for which percentage of his impairment is difficult to assign. He initially had back pain with radiation down his leg in 1986 following a lifting incident. He then did reasonable [sic] well until the automobile accident in 1988 which exacerbated his condition. I would therefor state that working initially aggravated it, but the automobile accident certainly was the proximal cause of his Page 3 exacerbation that led to surgery. (Exhibit H-1, page 18) In a subsequent report dated August 30, 1990, he stated: I cannot separate out all of the causes of Mr. Coots' difficulties in a precise manner. His automobile accident was a contributing factor, but not the sole cause of his needing surgery. I don't know how to divide up his permanent partial impairment, but it might be reasonable to say that half of it is related to the motor vehicle accident. Again, this is a legal and not a medical question, and I don't know that there is a very precise way of doing this. Similarly, with the work restrictions, I have no way of dividing up what is due to the automobile accident. (Exhibit H-1, page 19) When deposed on January 23, 1991, Dr. Boarini expressed his opinion as follows: He clearly had a herniated lumbar disk present before the accident occurred, which had caused symptoms on at least a couple of occasions prior to the automobile accident. The automobile accident subsequently intensified the symptoms and that was--that event was what immediately led up to surgery. (Exhibit A, page 19) Coots was receiving physical therapy at the time of the automobile accident. The physical therapy treatment summary dated January 18, 1989 contains the following statement: Mr. Coots' course of recovery following the 3/29/88 session was one of gradual improvement with increased tolerance to activities of daily living and ambulation. However, a significant setback occurred during his treatment sessions on 4/26/88 at which time Mr. Coots contacted me stating that he had been in a motor vehicle accident and was experiencing severe thoracolumbar discomfort along the spinous process as well as severe headaches and dizziness with nausea. He had also reported return of the right lower extremity discomfort with new posterior thigh pain that had not been previously experienced. (Exhibit H-2, page 69) Testimony from Coots varies somewhat from time to time regarding the progression and severity of his symptoms. It is noted, however, that when claimant was deposed he stated that surgery was not planned at the time the automobile accident occurred (exhibit B, page 27). Page 4 Since undergoing surgery, claimant sought a second opinion concerning his residual complaints. Sherwin Goldman, M.D., an orthopaedic surgeon at the Mayo Clinic, reported that the 1987 injury was the most substantial one and that the April 1988 automobile accident aggravated the preexisting condition caused by the 1987 injury (exhibit H-3, pages 110 and 111). It is found that the claimant was recovering from the March 1988 exacerbation as indicated by Dr. Boarini and the physical therapy report. While it cannot be determined with mathematical certainty, it appears probable that, if the automobile accident had not occurred, Coots would not have undergone surgery in June of 1988. He would not likely have been absent from work for much, if any, time subsequent to the date of the automobile accident. This is a case which calls for the exercise of professional judgment rather than measuring some objectively determinable quantity. There is certainly no precise method of determining with absolute certainty whether or not Coots would have required surgery at any time for his back condition or the amount of residual disability which would have existed if such surgery had occurred absent the automobile accident. The judgment made by Dr. Boarini where he states it is reasonable to say that half of the permanent impairment is related to the motor vehicle accident is accepted as being correct. That same 50-50 division is found to be appropriate for the degree of industrial disability. The assessment made by Dr. Boarini which states that the automobile accident caused the exacerbation which intensified the symptoms and was the event that immediately led to the surgery is likewise adopted as being correct. conclusions of law It is well established that injuries that occur in the course of medical treatment are deemed to have been proximately caused by the original injury. Cross v. Hermanson Bros., 235 Iowa 739, 16 N.W.2d 616 (1944). It is therefore concluded that the additional injury which Ronald Coots received in the automobile accident is the responsibility of the employer and its insurance carrier in this case since it occurred while Coots was engaging in the process of receiving physical therapy treatment for the original back injury. Since the employer and insurance carrier seek subrogation from the third party recovery, they are required to prove, by a preponderance of the evidence, the amount of the total disability and payments which would not have been paid, except for the occurrence of the automobile accident. It is well settled that the burden of proving an entitlement to anything rests on the proponent. Iowa R. App. P. 14(f)(5); Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 1973). The law is well settled in both workers' compensation and personal injury that aggravation of a preexisting condition constitutes a basis for liability. Olson v. Page 5 Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251, (1963). The normal rule of law is also that the employer in workers' compensation, or tort-feasor in personal injury law, bears the burden of proving the amount of disability which preexisted and, if unable to do so, is responsible for all the disability. Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407, 408-409 (Iowa 1984); Becker v. D & E Distrib. Co., 247 N.W.2d 727, 731 (Iowa 1976). In this case, however, the employer is not seeking apportionment based upon preexisting disability. The employer is seeking to apportion between the results of the original work injury and the results of the intervening automobile accident. It is concluded that the employer has successfully carried the burden of proving, by a preponderance of the evidence, that the surgery and associated healing period which occurred subsequent to April 26, 1988 were proximately caused by the automobile accident, an intervening traumatic event, and that the employer and its insurance carrier are entitled to subrogation to the extent of the entire amount of healing period compensation and medical expenses paid subsequent to April 26, 1988, less pro rata attorney fees. According to the stipulation which is part of the prehearing report, the healing period is $7,875.23 and the medical expenses are $10,290.48. The total is therefore $18,165.71. The one-third attorney fee is applied to the amounts to which subrogation rights apply. The net effect is that the amount actually reimbursed is two-thirds of the amount subject to reimbursement. It was stipulated that claimant was entitled to a 30 percent permanent partial disability. This entitles him to recover 150 weeks of compensation at the appropriate rate which, in this case, is stipulated to be $163.58. The total permanent partial disability compensation entitlement is therefore $24,537.00. One-half of that amount, namely $12,268.50, is attributable to the automobile accident and is therefore subject to subrogation as indicated by Dr. Boarini. Claimant's total entitlement to workers' compensation benefits is $42,702.71, of which $30,434.21 is attributable to the auto accident. The sum of $30,434.21, less one-third for attorney fees, is to be reimbursed in fulfillment of the defendants' subrogation rights. The amount to be reimbursed computes to $20,289.47 if the total workers' compensation entitlement has been paid. The amount the defendants would not be entitled to recover is the one-third for attorney fees, namely $10,144.74, and the 15 percent permanent partial disability entitlement not attributed to the auto accident. These total $22,413.24. The record shows payment in full for the healing period and medical expenses, $18,165.71, but only $10,515.90 for all permanent partial disability as stipulated in the prehearing report. Current claim activity reports have not been filed. The total actually paid is $28,681.61. Deducting the $22,413.24, which is not reimbursable, currently shows defendants to be entitled to be reimbursed $6,268.37 in order to bring the litigants to the same present positions as they would hold if the claimant's full workers' Page 6 compensation benefit entitlement ($42,702.71) were paid and the full subrogation entitlement ($20,289.47) under section 85.22 had been reimbursed. The record made does not permit the undersigned to make a computation of claimant's entitlement to interest, if any, under section 85.30 for benefits which were not timely paid or for the employer's right to recover interest, if any, under section 85.22(1) on the amounts which are to be reimbursed. The employer and insurance carrier also seek a future credit or offset in the event they have further liability to Ronald Coots under the workers' compensation law. The gross amount of the claimant's third party recovery is $80,000. Of that amount, $30,434.21 has been applied, leaving the gross amount of $49,565.79 available for credit or offset against any workers' compensation benefits which may become due to claimant in the future. If any workers' compensation benefits become due to claimant in the future for which the auto accident was a proximate cause, the defendants are entitled to a credit from the third party recovery in an amount equal to two-thirds of the future benefits until the gross amount of those future benefits reaches $49,565.79. There is no credit for the one-third attributable to attorney fees and that one-third must be paid to claimant as any future workers' compensation benefits become due and payable. Once the gross amount of workers' compensation benefits for which the auto accident was a proximate cause equals $80,000.00, the amount of the credit will have been exhausted and defendants will then be responsible for the full amount of any additional workers' compensation benefits which were proximately caused by the auto accident. There is, of course, no credit from the third party recovery for any workers' compensation benefits payable on account of the original injury which were not proximately caused by the auto accident. order IT IS THEREFORE ORDERED that claimant reimburse Culligan and Liberty Mutual Insurance Company in the amount of six thousand two hundred sixty-eight and 37/100 dollars ($6,268.37) in full satisfaction of the subrogation rights which currently exist under the provisions of Iowa Code section 85.22. IT IS FURTHER ORDERED that Culligan and Liberty Mutual Insurance Company have a credit in an amount equal to two-thirds (2/3) of any future workers' compensation benefits Ronald Coots may become entitled to receive under the provisions of Chapter 85 of The Code of Iowa for which the auto accident of April 26, 1988 was a proximate cause until the total of any additional benefits equals forty-nine thousand five hundred sixty-five and 79/100 dollars ($49,565.79). IT IS FURTHER ORDERED that the costs of this action are assessed against the employer and its insurance carrier pursuant to 343 IAC 4.33. Page 7 IT IS FURTHER ORDERED that defendants file claim activity reports showing full payment of healing period, medical expenses and thirty percent (30%) permanent partial disability pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Terrence A. Hopkins Mr. Dennis L. Hanssen Attorneys at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 Mr. Richard G. Book Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 1403; 1806; 2207; 3400 Filed May 30, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : RONALD COOTS, : : Claimant, : : vs. : : File No. 846265 CULLIGAN, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1403; 1806; 2207; 3400 Employer has burden of proving how much of the existing disability resulted from an intervening third party automobile accident which occurred while the employee was traveling to receive medical treatment in order to be entitled to subrogation under section 85.22 from the proceeds of the recovery in the third party action. The burden is to show probability by a preponderance of the evidence. It does not require absolute certainty. Where claimant was injured in an automobile accident while receiving medical treatment for the original work place injury, it was found that the claimant had essentially recuperated and was nearly ready to resume work prior to the auto accident, that the auto accident was a proximate cause of the then-resulting surgery and healing period. In accordance with the assessment made by the treating orthopaedic surgeon, 50 percent of the permanent disability was attributed to the original work injury and 50 percent to the automobile accident. Employer and insurance carrier held entitled to subrogation for 50 percent of the permanent partial disability awarded and also for all of the healing period and medical expenses incurred subsequent to the automobile accident, less their pro rata share of attorney fees (one-third). Employer and insurance carrier also granted credit for future payments in an amount equal to two-thirds of any future workers' compensation benefits (one-third deducted for attorney fees) proximately caused by the auto accident until those total future workers' compensation benefits equal the third party recovery less the amount held subject to subrogation in this decision. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DAN LAURSEN, Claimant, vs. File No. 846505 MOGENSON CONSTRUCTION, A R B I T R A T I O N Employer, D E C I S I O N and UNITED FIRE AND CASUALTY COMPANY-UNITED LIFE INSURANCE COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Dan Laursen, claimant, against Mogenson Construction, employer, and United Fire and Casualty Company-United Life Insurance Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act for an alleged injury occurring on or about February 11, 1987. This matter was to come on for hearing August 16, 1988 at 8:00 a.m. at the Buena Vista County Courthouse in Storm Lake, Iowa. The undersigned was present. Neither claimant nor defendants appeared. Claimant failed to present any evidence in support of the allegations found in his original notice and petition. At the time of the hearing, neither an agreement for settlement nor a request for continuance were on file. Claimant has the burden of proving by a preponderance of the evidence that he sustained an injury which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976). WHEREFORE, it is found: 1. Neither claimant nor defendants appeared at the scheduled time and place of hearing. 2. The undersigned deputy industrial commissioner was present and prepared to proceed to hearing. 3. At the time of the hearing, neither an agreement for settlement nor a request for continuance was on file with the industrial commissioner. LAURSEN V. MOGENSON CONSTRUCTION PAGE 2 4. Claimant failed to present any evidence to support allegations of a compensable work injury. THEREFORE, it is ordered: Claimant has failed to meet his burden of proof that he sustained an injury which arose out of and in the course of his employment. Claimant takes nothing from this proceeding. Costs are taxed to the claimant. Division of Industrial Services Rule 343-4.33. Signed and filed this 24th day of August, 1988. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. M. W. Miller, Jr. Attorney at Law 216 West Main St. Cherokee, Iowa 51012 Mr. Michael P. Jacobs Attorney at Law 300 Toy National Bank Bldg. Sioux City, Iowa 51101 1400; 1402 Filed August 24, 1988 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER DAN LAURSEN, Claimant, vs. File No. 846505 MOGENSON CONSTRUCTION, A R B I T R A T I O N Employer, D E C I S I O N and UNITED FIRE AND CASUALTY COMPANY-UNITED LIFE INSURANCE COMPANY, Insurance Carrier, Defendants. 1401; 1402 Neither claimant nor counsel appeared at the hearing. No evidence in support of allegations of a compensable work injury was presented and claimant therefore failed to meet his burden of proof. Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : TONY L. BARNES, : : Claimant, : : vs. : File Nos. 846639/939159 : 939160 HON INDUSTRIES, : : A P P E A L Employer, : : D E C I S I O N and : : THE TRAVELERS INSURANCE : COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ STATEMENT OF THE CASE Defendants appeal from an arbitration decision awarding permanent partial disability benefits as the result of an alleged injury on March 20, 1989. The record on appeal consists of the transcript of the arbitration proceeding and joint exhibits 1 through 10. Both parties filed briefs on appeal. ISSUES Defendants state the following issue on appeal: I. Did the deputy err in awarding the claimant healing period benefits from March 20, 1989, through March 13, 1990, as a result of the 1989 injury? II. Did the deputy err in awarding permanent partial disability benefits equal to ten per cent [sic] (10%) of the right arm on account of the injury of March 21, 1988, and permanent partial disability benefits equal to five per cent [sic] (5%) of the right arm on account of the injury of March 20, 1989? FINDINGS OF FACT The findings of fact contained in the proposed agency decision filed June 12, 1991 are adopted as final agency action. CONCLUSIONS OF LAW The conclusions of law contained in the proposed agency decision filed June 12, 1991 are adopted as final agency action, with the following additional analysis: In regards to healing period, William F. Blair, M.D., Page 2 indicated in December 1989 that there was no medical reason claimant could not return to work. Under Iowa Code section 85.34(1), healing period ends when claimant is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of the injury. In addition, William R. Irey, M.D., indicated in October 1989, that he would like to see claimant again in two months, which would have been December 1989, but was not actually scheduled until March 1990. The greater weight of the medical evidence indicates that claimant's healing period ended December 12, 1989. WHEREFORE, the decision of the deputy is affirmed and modified. order THEREFORE, it is ordered: That as a result of the injury of March 21, 1988, defendants shall pay to claimant twenty-five (25) weeks of permanent partial disability benefits at the rate of two hundred thirty-eight and 62/100 dollars ($238.62) per week from November 12, 1988. That as a result of the injury of March 20, 1989, defendants shall pay to claimant an additional twelve point five (12.5) weeks of permanent partial disability benefits at the rate of two hundred thirty-nine and 97/100 dollars ($239.97) per week from March 14, 1990. That as a result of the injury of March 20, 1989, defendants shall pay to claimant healing period benefits through December 12, 1989 at the rate of two hundred thirty-nine and 97/100 dollars ($239.97) per week. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for disability benefits previously paid. That defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter and the cost of the transcription of the hearing proceeding. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Allan Hartsock Attorney at Law P.O. Box 4298 Page 3 Rock Island, IL 61204-4298 Ms. Vicki L. Seeck Attorney at Law 600 Union Arcade Bldg. 111 East Third Street Davenport, Iowa 52801 1802 Filed February 28, 1992 Byron K. Orton LPW before the iowa industrial commissioner ____________________________________________________________ _____ : TONY L. BARNES, : : Claimant, : : vs. : File Nos. 846639/939159 : 939160 HON INDUSTRIES, : : A P P E A L Employer, : : D E C I S I O N and : : THE TRAVELERS INSURANCE : COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 1802 Deputy affirmed but healing period award modified. Primary physician stated claimant was capable of returning to work in December 1989. A second physician told claimant in October 1989, he would like to see him again in two months (December 1989). The visit did not occur until March 1990, at which point the second doctor indicated further surgery was not necessary. Held that healing period ended in December 1989 and not March 1990. 5-1803 Filed June 12, 1991 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : TONY L. BARNES, : : Claimant, : : File Nos. 846639 vs. : 939159 : 939160 HON INDUSTRIES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE TRAVELERS INSURANCE : COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1803 Extended disability benefits non-precedential. 5-1803 Filed September 24, 1990 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : WAYNE L. THOREN, : : Claimant, : : vs. : : File No. 846698 & 822586 CROUSE CARTAGE COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INS. CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Extent of permanent partial disability benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MICHAEL YERINGTON, Claimant, File No. 846705 vs. A R B I T R A T I O N HIGHLANDER INN, INC., D E C I S I O N Employer, and THE AETNA, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Michael Yerington, claimant, against Highlander Inn, Inc., employer (hereinafter referred to as Highlander), and Aetna Casualty and Surety Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on March 2, 1987. On June 8, 1988, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Testimony was received during the hearing only from claimant. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. On March 2, 1987, claimant received an injury which arose out of and in the course of employment with Highlander; 2. The injury was a cause of temporary disability during a period of recovery, the extent which remains in dispute; 3. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole; and, 4. Claimant's gross weekly rate of compensation at the time of the alleged injury was $176.59 per week and claimant, at that time, was married and entitled to three exemptions on his tax return. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether there is a causal relationship between the work YERINGTON V. HIGHLANDER INN, INC. PAGE 2 injury and the claimed disability; and, II. The extent of claimant's entitlement to weekly benefits for disability. SUMMARY OF THE EVIDENCE The following is a summary of evidence presented in this case. For the sake of brevity, only the evidence most pertinent to this decision is discussed. Whether or not specifically referred to in this summary, all of the evidence received at the hearing was considered in arriving at this decision. As will be the case in any attempted summarization, conclusions about what the evidence offered may show are inevitable. Such conclusions, if any, in the following summary should be considered as preliminary findings of fact. Claimant testified that at the time of the injury he worked for Highlander as a saute cook operating the grill. and performing other range top cooking. However, this employment also required physical work including stocking, plate setup and lifting cases of meat. Also, claimant was required on occasion to perform cleanup work. The facts surrounding the work injury are not in dispute. Claimant testified at the time of the injury he was mopping up grease which had spilled on the kitchen floor. While doing so, claimant said that he slipped and fell on his shoulder and back striking his head on the floor. Claimant said that he experienced pain in the head, neck, shoulder and low back subsequent to this incident. Also claimant experienced an epileptic seizure for approximately four to five minutes after the fall. Claimant basis his claim for permanent disability upon lingering low back pain and numbness in the thighs as a result of this fall. After the fall, claimant was transported to the hospital where he received treatment from Dr. Goodner (first name unknown), the company doctor and Anthony Colby, M.D. The assessment of claimants condition at the emergency room was that claimant had suffered a "probably concussive episode - associated seizure." X-rays at the time found no spinal abnormalities and claimant was discharged. Over the ensuing few weeks claimant was treated by Dr. Colby for lingering headaches and low back pain and leg numbness. Claimant's care was then referred to James Worrell, M.D., a neurologist. Following a myelogram which revealed no spinal abnormalities, Dr. Worrell treated claimant's symptoms until December 30, 1987. Claimant failed to show for the scheduled appointment in October of 1987. Claimant returned to Dr. Worrell in 1988 indicating little change in his condition with lingering low back pain and numbness in his leg. Claimant requested a release to return to light duty at that time. Claimant was then released by Dr. Worrell with restrictions against lifting over 20 pounds and no repetitive bending although claimant could increase activity "as tolerated." Claimant testified that he had no back or leg problems before March 2, 1987. On the same day as this fall, he had underwent an examination earlier in the day by Dr. Colby indicating a history of convulsive seizure disorders. However, claimant reported to Dr. Colby at that time that he was not on medication and had not had a seizure for four to five years. Also at that time claimant's obesity was noted by Dr. Colby. YERINGTON V. HIGHLANDER INN, INC. PAGE 3 Due to the absence of objective evidence of neurological deficit, Dr. Worrell stated following the May, 1988 office examination that he, "would not be willing to apply any permanent impairment rating in his case." Claimant testified that he has not been able to return to work as a restaurant cook due to the physical demands of such work. Claimant complained of lingering low back pain and numbness in his leg. Claimant said heavy lifting brings on pain along with bending and prolonged standing and sitting. Claimant remains over weight at this time. Claimant testified that his past employment primary consists of restaurant work as a cook since receiving an Associate of Arts Degree in food service at the Des Moines Community College. Claimant testified that his past work involves heavy lifting, repetitive bending and prolonged standing and twisting. Claimant also worked as a packinghouse worker in 1981 and as a construction/concrete worker during the summers of 1981 and 1982. Claimant stated at the hearing that he is 33 years of age and has a GED. Claimant decided to return to school to study restaurant management and is working with the State Vocational Rehabilitation Department to accomplish this objective. Claimant stated that he did not look for work until recently as light duty jobs are "real scarce." Claimant testified that he has reviewed Job Service postings as to the availability of jobs at the present time. Claimant's appearance and demeanor at the hearing indicated that he was testifying truthfully. APPLICABLE LAW AND ANALYSIS I. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The,question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). YERINGTON V. HIGHLANDER INN, INC. PAGE 4 Furthermore, if the available expert testimony is insufficient along to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, the parties stipulated that claimant suffered a work injury. Also, the evidence supports this stipulation as claimant apparently did not have a seizure until after the fall on March 2, 1987. Although Dr. Worrell refuses to give an impairment rating, a finding of significant impairment will be made. The lack of objective evidence of impairment does not negate a finding of impairment. In the experience of this agency, many physicians provide impairment ratings based upon subjective pain complaints. Claimant should not be denied such a finding in this case simply because he was treated by a conservative physician. Claimant's credible testimony established that he had no back problems before March 2, 1987 and that the chronic symptoms he has today began at that time. Most significant in this case is the imposition by Dr. Worrell of permanent restrictions on claimant's work activity. This is much more important factor in an industrial disability case than a percentage rating of impairment. II. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City 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 condition 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, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to hie injury, after the injury and potential for rehabilitation; the employees 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 YERINGTON V. HIGHLANDER INN, INC. PAGE 5 the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). Claimant's medical condition before the work injury was excellent. He had no functional impairment or ascertainable disabilities. Claimant was able to fully perform physical tasks involving heavy lifting, repetitive lifting, bending, twisting and stooping and prolonged standing and sitting. As a result of his work activity restrictions following the work injury, claimant has not been able to return to the work for which he is best suited given his work experience and education. Claimant's only work has involved jobs which required heavy lifting, repetitive bending and prolonged standing. Claimant is now compelled to retrain himself to obtain more suitable sedentary work in the restaurant business. However, claimant is relatively young and his prior educational attainments indicate that he has good potential for vocational retraining. Claimant appears to have above average intelligence. After examination of all the factors, it is found as a matter of fact that claimant has suffered a 20 percent loss of his earning capacity from his work injury. Based upon such a finding, claimant is entitled as a matter of law to 100 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u) which is 20 percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. As claimant has established entitlement to permanent partial disability benefits, claimant is entitled to weekly benefits for healing period under Iowa Code section 85.34 from the date of injury until it is indicated that significant improvement from the injury is not anticipated. It is clear that claimant's condition stabilized at the time of claimant's office appointment with Dr. Worrell of September 30, 1987. Claimant told the doctor in May, 1988 that his condition had not changed since that time. According to the commissioner's rate booklet for this injury and given the parties stipulations as to gross weekly earnings, marital status and entitlement to exemptions, claimant's rate of weekly compensation for this injury is $122.18. FINDINGS OF FACT 1. Claimant was a credible witness. 2. On March 2, 1987, claimant suffered an injury to the low back and spine which arose out of and in the course of employment with Highlander. Although claimant had a prior history of convulsive seizure disorders, claimant did not suffer a seizure on March 2, 1987 until after the fall. 3. The work injury of March 2, 1987 was a cause of a period of disability from work beginning on March 2, 1987 and ending on September 30, 1987 at which time claimant reached maximum healing. YERINGTON V. HIGHLANDER INN, INC. PAGE 6 4. The work injury of March 2, 1987, was a cause of permanent restrictions upon claimant's physical activity consisting of no lifting over 20 pounds, no repetitive bending, and no prolonged standing and sitting. 5. The work injury of March 2, 1987 and the resulting work restrictions were a cause of a 20 percent loss of earning capacity. Due to his disability, claimant is unable to return to the work for which he is best suited given his work history and education. The only work claimant has performed in the past has been the type of work which requires physical activity which he can no longer perform. Claimant is 33 years of age and has an Associate of Arts Degree in food service. Claimant appears intelligent and appears able to retrain himself into more suitable sedentary work. Claimant was obese at the time of injury and remains obese at the present time. This obesity probably contributes to his disability but the over weight condition existed at the time of the injury. CONCLUSIONS OF LAW Claimant has established entitlement under the law to the disability benefits awarded below: ORDER 1. Defendants shall pay to claimant one hundred (100) weeks of permanent partial disability benefits at the rate of one YERINGTON V. HIGHLANDER INN, INC. PAGE 7 hundred twenty-two and 18/100 dollars ($122.18) per week from October 1, 1987. 2. Defendants shall pay claimant healing period benefits from March 2, 1987 through September 30, 1987 at the rate of one hundred twenty-two and 18/100 dollars ($122.18) per week. 3. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for benefits previously paid as stipulated in the prehearing report. 4. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 6. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 29th day of November, 1988. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert F. Wilson Attorney at Law 810 Dows Bldg. Cedar Rapids, Iowa 52401 Mr. Larry L. Shepler Attorney at Law 400 Main St. Executive Square, Suite 102 Davenport, Iowa 52801 1802; 1803 Filed November 28, 1988 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER MICHAEL YERINGTON, Claimant, File No. 846705 vs. A R B I T R A T I O N HIGHLANDER INN, INC., D E C I S I O N Employer, and THE AETNA, Insurance Carrier, Defendants. 1802; 1803 Permanent disability was found despite the absence of a permanent impairment rating from a physician as the treating physician had imposed permanent restrictions as a result of the work injury and due to these restrictions, claimant has been unable to return to the employment for which he is best suited. Consequently, industrial disability benefits were awarded but given his age and education the award of industrial disability was limited to 20 percent. before the iowa industrial commissioner ____________________________________________________________ : GEORGE SNYDER, : : Claimant, : : vs. : : File No. 846731 IOWA STATE PENITENTIARY, : : A P P E A L Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed November 27, 1990, is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of October, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road PO Box 1066 Keokuk, Iowa 52632 Mr. Dean A. Lerner Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 9998 Filed October 17, 1991 BYRON K. ORTON DRR before the iowa industrial commissioner ____________________________________________________________ : GEORGE SNYDER, : : Claimant, : : vs. : : File No. 846731 IOWA STATE PENITENTIARY, : : A P P E A L Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed November 27, 1990. Page 1 before the iowa industrial commissioner ____________________________________________________________ : GEORGE SNYDER, : : Claimant, : : vs. : : File No. 846731 IOWA STATE PENITENTIARY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration upon claimant's petition filed May 11, 1988. Claimant sustained a traumatic injury when he fell through an open hatch in a guard tower while in the performance of his duties as a correctional officer on February 27, 1987, and now seeks benefits under the Iowa Workers' Compensation Act from Iowa State Penitentiary and the State of Iowa. Hearing on the arbitration petition was had in Burlington, Iowa, on February 8, 1990. The record consists of claimant's testimony and joint exhibits 1 through 14. issues Pursuant to the prehearing report, the parties have stipulated: that claimant sustained an injury arising out of and in the course of his employment with Iowa State Penitentiary on February 27, 1987; that the injury caused temporary disability from June 26, 1987 through August 20, 1987; that the work injury caused permanent disability, benefits which should commence on August 21, 1987; that the appropriate rate of compensation is $240.16 per week; that all requested medical benefits have been or will be paid by defendants; that defendants paid claimant 40.8 weeks of compensation at the stipulated rate prior to hearing. Issues presented for resolution include: the extent and nature of claimant's permanent disability; whether defendants have a valid affirmative defense under Iowa Code section 85.16(2) (intoxication); taxation of costs. findings of fact The undersigned deputy, having heard the testimony and Page 2 considered all of the evidence, finds: Claimant was engaged in his employment as a correctional officer on February 27, 1987, when he accidently fell some 10 or 11 feet through a trap door opening in a guard tower, landing on steel grating. He was taken to Fort Madison Community Hospital and treated by Keith W. Riggins, M.D. Dr. Riggins, a board-certified orthopaedic surgeon, testified by deposition taken March 10, 1989. Dr. Riggins' discharge summary of March 8, 1987, reflected that the post-injury course of recovery was complicated by several factors including symptoms of alcohol withdrawal (agitation, confusion and tremulousness, indicating the presence of early delirium tremens). Claimant also developed pneumonitis during his hospitalization. Claimant's blood alcohol was not measured (or at least not recorded) at the time of his admission. Claimant denied being intoxicated at the time of his injury, noting that he had gone through an inspection that morning before starting work. On the day before, he had consumed approximately two beers. There is no contrary evidence indicating that claimant was intoxicated when he fell. In fact, the written statement of correctional officer Michael Gilbert shows no indication of any signs of alcohol abuse or intoxication. Timothy H. Cook, M.D., also saw claimant in consultation at the hospital and wrote on December 2, 1989 that he was unable to draw any conclusions with respect to the quantity of alcohol claimant consumed prior to the onset of his apparent withdrawal symptoms; he noted that the presence of withdrawal symptoms would indicate the presence of physical dependence on alcohol, but the degree of dependence cannot be inferred from the severity of withdrawal symptoms due to the fact that claimant underwent significant stress by reason of the injury itself. The evidence does not show that intoxication was a factor in causing claimant's work injury, much less a substantial factor. Artemio C. Santiago, M.D., wrote on May 6, 1987 that it was logical to assume that claimant's pneumonia infection resulted from his fall. The record does not indicate that claimant suffered any lasting effects of this infection. Dr. Riggins testified that claimant's final diagnosis was open fracture of the right calcaneous with residual traumatic osteoarthritis of the right hind foot. Claimant sustained a crushing or comminuted fracture of his right heel bone. This resulted in flattening of the arch of claimant's foot and a distortion of the calcaneous on a permanent basis. The area of the ankle and hind foot is permanently enlarged; the appearance of the normal bony prominences in the area is changed and the configuration of the foot was changed. Page 3 On August 27, 1987, Dr. Riggins rated claimant as having sustained a 19 percent impairment of the lower extremity secondary to restriction of range of motion of the right ankle and subtalar joint. The rating was given pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment. Based on his diagnosis of fractured calcaneous and traumatic osteoarthritis to the right foot, Dr. Riggins on the same date imposed certain permanent medical restrictions: against prolonged standing or walking, climbing vertical ladders or running and carrying heavy loads, although claimant can perform lifting activities when standing still with both feet on the ground. Claimant also suffers osteoarthritic changes in the lumbar spine. Dr. Riggins testified that claimant's abnormal gait imposed by the foot injury "could" aggravate the symptoms of that arthritis, although anatomic changes in the back would not appear and there would probably not be a permanent partial impairment to the spine in that sense. Dr. Riggins testified that claimant's low back pain is due to some degree to his preexisting arthritis and to some degree to abnormal gait; he could not break down the portion of such pain attributable to either factor on a percentage basis. conclusions of law The fighting issue in this case is whether claimant sustained a scheduled member disability or whether, as he argues, the injury had a secondary effect on his back causing an injury to the body as a whole which should be compensated industrially. It must be held that claimant has sustained a scheduled member disability. Although claimant may suffer some increased pain in the lumbar spine by way of aggravation of his preexisting condition (but to an undetermined degree), he has no ratable impairment to the spine and the medical restrictions imposed by Dr. Riggins are specified as secondary to the foot injury. No impairment or disability relates to claimant's body as a whole. Therefore, the injury must be compensated pursuant to the schedule. Dr. Riggins rated claimant's injury as an impairment to the lower extremity. However, the impairment exists in the calcaneous bone and subtalar joints. All of the impairment is at the ankle level or below. The wrist is part of the hand, Elam v. Midland Mfg., II Iowa Industrial Commissioner Report 141 (1981), and the same logic should apply to the ankle as being part of the foot as opposed to the leg. See also an arbitration decision authored by the undersigned, Angerman v. K-Mart Corp., file number 802436 (February 20, 1990). Pursuant to Table 32 of the AMA guides, a 19 percent impairment of the lower extremity is equivalent to a 27 percent impairment of the foot. Pursuant to Iowa Code Page 4 section 85.34(2)(n), an injury to the foot is compensated during 150 weeks. Twenty-seven percent of 150 weeks is 40.50 weeks, thus claimant shall be awarded permanent partial disability benefits in that amount. Iowa Code section 85.16(2) provides: No compensation under this chapter shall be allowed for an injury caused: * * * 2. By the employee's intoxication, which did not arise out of and in the course of employment but which was due to the effects of alcohol or another narcotic, depressant, stimulant, hallucinogenic, or hypnotic drug not prescribed by an authorized medical practitioner, if the intoxication was a substantial factor in causing the injury. It is defendants' burden of establish the affirmative defense set forth in 85.16(2). Reddick v. Grand Union Tea Co., 230 Iowa 108, 296 N.W. 800 (1941). Defendants have failed to meet that burden of proof. While there are indications in the medical record that claimant may have had an alcohol abuse problem at the time of his injury (although claimant denies this), there is no evidence whatsoever to establish that claimant was intoxicated or under the influence of any intoxicant at the time of his injury, much less that there was any substantial causal nexus to the alleged intoxication. The affirmative defense fails. Page 5 order Defendants shall pay unto claimant (pursuant to stipulation) eight (8) weeks of healing period benefits at the stipulated rate of two hundred forty and 16/100 dollars ($240.16) per week commencing June 26, 1987 and totalling one thousand nine hundred twenty-one and 28/100 dollars ($1,921.28). Defendants shall pay unto claimant forty point five zero (40.50) weeks of permanent partial disability benefits at the stipulated rate of two hundred forty and 16/100 dollars ($240.16) per week commencing August 21, 1987 and totalling nine thousand seven hundred twenty-six and 48/100 dollars ($9,726.48). Defendants shall have credit for all voluntarily paid benefits. As all benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. The costs of this action shall be assessed to defendants pursuant to 343 IAC 4.33. Defendants shall file claim activity reports as requested by this agency pursuant to 343 IAC 3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road P.O. Box 1066 Keokuk, Iowa 52632 Ms. Barbara J. Danforth Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 1803.1 Filed November 27, 1990 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : GEORGE SNYDER, : : Claimant, : : vs. : : File No. 846731 IOWA STATE PENITENTIARY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1803.1 Fractured calcaneous altered claimant's gait and may have increased pain from pre-existing back condition. However, no impairment or medical restrictions relating to spine (as opposed to foot) appear of record. Foot injury was compensated per the schedule, and not industrially. Injury to foot and ankle was injury to foot, not leg, although impairment rating was to leg. Page 1 before the iowa industrial commissioner ____________________________________________________________ : PAUL McDANIEL, : : File No. 846849 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N SHELLER-GLOBE, : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Paul McDaniel, against his employer, Sheller-Globe Corporation, a self-insured employer. The case was heard on January 29, 1993 at the Des Moines County courthouse in Burlington, Iowa. The record consists of claimant's exhibits 1-18 and defendant's exhibits A and B. The record also consists of the testimony of claimant. ISSUES The two issues presented are: 1) whether claimant suffered an injury to his back when he sustained a work-related injury to his left leg on March 2, 1987; and 2) whether defendant is liable for certain medical expenses in the form of prescriptions. FINDINGS OF FACT The deputy, having heard the testimony and considered all the evidence, finds: Claimant sustained a work-related injury on March 2, 1987. At the time of the injury, claimant had been employed by defendant for 39 years. Claimant had worked as a fork lift driver. On the date of the injury, claimant had jumped from the fork lift truck without setting the emergency brake. The truck pulled claimant to the floor where he was trapped by the truck. He sustained severe injuries to his left leg and ankle. Those injuries were not disputed. The parties were in agreement that claimant had sustained a 70 percent loss of the use of the left lower extremity. Defendant paid all permanent partial disability benefits as a result of the scheduled member injury. Claimant was off work from the date of the injury. After surgery he was placed in a fixed brace for three months. From the fixed brace, claimant was placed in a wheelchair and he progressed to using a walker. He used the walker for approximately three months. Then claimant was placed in a walking cast. He testified that at that point Page 2 in time, he began experiencing pain in his left leg. Motrin was prescribed by the then treating orthopedic surgeon, Rouben Mirbegian, M.D. Claimant testified that he began treating with William Vance, D.C., in May of 1987. Claimant indicated he began experiencing pain in the low back region after he used a walker or when he attempted to walk using the walking cast. The records of Dr. Vance supported claimant's testimony that he sought chiropractic treatment for low back pain in May of 1987. The office note for May 4, l987 reflected that: Accident March 2- at Sheller-Globe - lift truck caught him - crushed left leg - 22 breaks - fracture - 4 surgeries - hosp. 2 mos. had skin grafts - now pains in neck and shoulder - bad since Tuesday.... (Exhibit 11, page 60) Claimant also testified that he sought treatment from his personal physician, Thomas R. Westerhoff, M.D. During direct-examination, claimant indicated he sought pain medication from his family physician because Dr. Mirbegian refused to prescribe appropriate pain medication. Dr. Westerhoff prescribed Motrin for claimant's back and leg (Ex. 7, p. 35; Ex. 18, pp. 5 & 6). With respect to claimant's leg injury, Dr. Westerhoff testified in his deposition that: A. I had been seeing the patient for his general health problems prior to the injury and have seen him on a regular basis since that time, usually every six months. He told me about his treatment with reference to the injuries in 1987, but I was not involved in any actual treatment on his leg injury. Q. And then more recently have you been treating him either for the leg or the back problems or symptomatology that has been related? A. Yes. When I saw him in June of '91, he reported he was having more problems with leg pain. He had been limping chronically on the leg since the injury and had developed low back pain with radiation of pain into the left thigh and calf. Q. And so did you -- did you come to some type of impression, at least after examining him and treating him for a period of time after this, as to what his problem was and how it was come to be developed? A. I thought when I evaluated him June 11, '91, that his symptoms and findings were those of a Page 3 herniated disk in his lumbar spine. He had mild neurologic deficit in his leg, the left leg. It was my impression that this had been caused by the chronic gait problem, which he had had since the foot injury, and that limping had caused a mechanical low back problem resulting in low back pain. Q. Have you seen him since that time as well? A. Yes. He was seen again in October '91. At that point his back wasn't bothering him very much, and then the next month he contacted me by note indicating he was having more trouble with his back and leg and had gone to have a consultation with an orthopedist named Dr. Robb in Iowa. I saw him again, then, February '92, and he has having quite a bit of problems with back and leg pain. Q. Would your impression still be the same today as it was initially, then? A. Yes. Q. Doctor, would your impression also be that -- as we both know, his leg problem is a permanent problem, is it not? A. Yes. Q. And is it likely, then, as long as that leg problem is permanent, which it is, that he will then continue to have permanent secondary effect upon the back as he has related it to you? A. I think so. (Ex. 18, p. 5, line 14 thru p. 7, line 10) Defendant denied payment for any treatment of the low back complaints. Claimant was instructed by defendant to report to W. John Robb, M.D., on October 31, 1991 for an examination. Dr. Robb wrote in his report of November 4, 1991: He does not recall whether he discussed back pain with his orthopedic physician, Dr. Mirbegian, and upon my referring to the records, I see no reference to low back pain. What he describes as low back pain, he points to the left lower lumbar area and left sacroiliac joint area. For these complaints, and after his release from the hospital and the care of Dr. Mirbegian, he began treatment with a chiropractic physician whose treatments he has continued to receive since 1987. I asked him if he felt they had improved his back pain, and he states that they have. His comment was, he only has pain with "a lot of walking." By this he is referring to a distance of 8-10 blocks. Page 4 He also stated "I have back pain if I stand too long" and by this he refers to 2-3 hours. The back pain is not accompanied by a radicular type of pain down the leg or any other associated symptoms. Following this accident, and after resumption of walking, no rehabilitation program of exercises was described nor suggested by his health care practitioners. No calisthenics were performed. He had been a forklift operator prior to his injury. He retired in 1988, not having returned to work. On examination, this is a moderate slender 62 year old white male who stands with normal alignment of the lumbosacral spine. There is no list to either side. There is no muscle spasm evident of the paravertebral muscles. There is no tenderness present. His lateral bending is 25o and performed without difficulty. His forward flexion is with a normal arch in the back, and he touches the floor. Extension performed to 10o without difficulty. The tenderness that is evident appears to be minimal and is in the area of the left sacroiliac joint. Palpation of the sciatic notch is negative. On walking across the room he walks with a slight limp but no marked list nor is there any marked limp. Examination of the left ankle reveals excellent alignment. There is 10o of dorsi flexion and 10o of plantar flexion. There is no instability evident. Motion that is present does not appear to be painful. Straight leg raising, sitting and lying down, is negative bilaterally. Cervical flexion and Naffizger's test are negative, indicating no nerve root irritation. While lying down he demonstrates an excellent range of motion of both hip joints. Neurological examination does not demonstrate any significant muscle atrophy or weakness. Deep tendon reflexes are present and equal. X-ray examination of the lumbosacral spine reveals reasonably well preserved disc spaces. He has marked degenerative changes in the facets at L4-5 bilaterally. DIAGNOSES: 1. Degenerative arthritis facets L4-5 2. Moderate deconditioning lumbosacral spine DISCUSSION: The symptoms of which this patient complains, in my opinion, are not due to any specific injury but are due to the degenerative changes present at the L4-5 joint. These are of long standing and often cause referred pain into Page 5 the left or right sacroiliac area. The symptoms that he has described are not, in my opinion, due to any abnormality of gait but represent an aging process that takes place in the spine over a period of years. The treatment of such a condition responds at least in part to specific exercises of the low back and a conditioning process that often alleviates, or at least modifies, the symptoms. I have enclosed a copy of the report, since the patient has requested a copy of my dictation, and I advised him I would forward a copy that you could forward to him. (Ex. 12) Defendant also instructed claimant to present himself to Daniel J. McGuire, M.D., for another examination. Dr. McGuire examined claimant on October 1, 1992. The orthopedic surgeon then authored a report dated November 2, 1992. In his report Dr. McGuire opined: As far as his back is concerned, the things we're seeing are part of the natural aging process. He has some problems with back pain and that's a very common problem. He has some changes noted on his radiographs that are related to the aging process and they may account for some of his back pain. Some of the back pain is probably coming from the soft tissues and those we can't change. As far as his back is concerned I really see no reason to think there is a true relationship to the injury to his left leg in March of 1987. I realize he's had some persistent aches and pains, but some of those aches and pains are probably more related to his natural aging process. Please see my enclosed office note for the diagnosis. I would have to agree with Dr. Robb. If it's truly related to his open tibia fracture he would have related more radicular complaints at first, and every patient with a tibia fracture would end up with back problems and that's not what happens. Without a doubt Mr. McDaniel is employable. I guess I would disagree with the physician who thought he had permanent and forever disability that would keep him from working. I realize he had a tibia fracture, but he's had a good clinical result from his severe injury. From my standpoint there are many things he could be doing. I might place a few restrictions on him because of his age and the aging process, but they would not be restrictions related to the incident in March of 1987. We have a gentleman who hasn't worked in 5 1/2 years and we have a man who has known arthritic changes in his lumbar spine, and taking Page 6 those two things into consideration we would have to make some common sense temporary restrictions for him. (Ex. A) At the time of the hearing, claimant reported that he had not been employed in any capacity. He was receiving social security disability payments. Claimant also reported that he did perform volunteer work for several senior citizens. The volunteer work generally required claimant to act as an unpaid chauffeur. Claimant also testified that he must wear a specially designed boot. It was originally prescribed by Dr. Mirbegian and it aids claimant with walking. There is no question that the boots will need replacing on a periodic basis. CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). The right of an employee to receive compensation for injuries sustained is statutory. The statute conferring this right can also fix the amount of compensation payable for different specific injuries. The employee is not entitled to compensation except as the statute provides. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Compensation for permanent partial disability begins at termination of the healing period. Section 85.34(2). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Page 7 Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960). An injury to a scheduled member may, because of after effects or compensatory change, result in permanent impairment of the body as a whole. Such impairment may in turn be the basis for a rating of industrial disability. It is the anatomical situs of the permanent injury or impairment which determines whether the schedules in section 85.34(2)(a) - (t) are applied. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Blacksmith, 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup, 222 Iowa 272, 268 N.W. 598 (1936). Claimant maintains that he has sustained a low back injury which is the direct result of the work injury which he sustained on March 2, 1987 to his left lower extremity. Specifically, claimant attributes his low back pain to his abnormal gait and to the fact that he has had to resort to the use of casts, walkers, and special shoes. Dr. Mirbegian, the treating orthopedic surgeon, was unavailable at the time of the hearing. Some years prior to the date of the hearing, he had moved from the state. His medical records for claimant were admitted as evidence in the case. The undersigned deputy was unable to find any reference to a low back condition or to low back complaints in the records maintained by Dr. Mirbegian. The undersigned did note that Dr. Vance documented low back complaints in his chiropractic notes for the summer of 1987. Claimant continued chiropractic treatment with Dr. Vance through August 23, 1990. The records of Dr. Vance contained notations regarding follow-up care for claimant stemming back to the date of the work injury. (Ex. 11, p. 58) The records and the deposition of claimant's family physician, Dr. Westerhoff, revealed his opinion relative to the cause of claimant's back condition. Dr. Westerhoff opined that the back condition was the result of a chronic gait problem that was directly attributable to the March 2, 1987 work injury. Dr. Westerhoff's opinion was based upon the observations the physician made of claimant over several years. Dr. Westerhoff did not order or conduct any diagnostic tests. No radiological evaluations were ordered for claimant's back. Nor did Dr. Westerhoff have any special expertise in the field of orthopedics. On the other hand, two orthopedic specialists denied there was a causal relationship between claimant's back condition and his left leg injury. Dr. Robb examined x-rays of claimant's lumbosacral spine. He noted degenerative changes at L4-5 which he attributed to the aging process and to the fact that claimant was in his sixties. Dr. Robb noted that the degenerative changes were of long-standing and were not associated with an abnormal gait. Dr. McGuire, like Dr. Robb, reviewed radiographs of claimant's lumbar spine. Dr. McGuire too found degenerative changes. He corroborated the opinion of Dr. Robb that the Page 8 changes were due to the aging process. Dr. McGuire did not causally relate any back condition to the work injury in question. The opinions of both Dr. Robb And Dr. McGuire were accorded more weight than was the opinion of Dr. Westerhoff. Dr. Robb and Dr. McGuire were specialists in orthopedic surgery. Dr. Westerhoff had no special expertise in orthopedics. He was a family practitioner. Additionally, Dr. Westerhoff performed no diagnostic tests. The opinions of the other two physicians were based upon separate reviews of radiographs. While it is acknowledged that claimant reported his work injury to his personal chiropractor, Dr. Vance, nowhere is the record clear that Dr. Vance opined the back condition was the direct result of an abnormal gait. However, even if Dr. Vance did causally relate the back condition to the work injury, this deputy would still attribute more weight to the opinions of the two orthopedic surgeons since they were better educated than was the chiropractor. Therefore, it is the determination of the undersigned that the alleged back condition is not causally related to the injury to the left lower extremity. Claimant takes no additional weekly benefits because of the work injury on March 7, 1987. Finally, there is the issue dealing with medical benefits pursuant to section 85.27 of the Iowa Code. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). This deputy is convinced that certain prescriptions for pain medication were prescribed for both the left lower extremity pain, as well as for the back pain. Since the prescribed Motrin and the Darvon relieved pain in the left lower extremity, defendant is liable for the costs of those medications. The sum of those medical benefits is as follows: $ 9.75 7.70 7.70 23.95 12.00 38.80 9.75 8.95 8.95 Page 9 8.95 8.95 8.95 8.95 9.15 Total $172.50 ORDER THEREFORE, it is ordered: Defendant is liable for all reasonable and necessary medical expenses which are causally connected to the work injury and which include one hundred seventy-two and 50/l00 dollars ($172.50) in medical expenses for prescriptions. Costs are taxed to defendant. Defendant shall file a claim activity report as requested by this division and pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1993. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road P O Box 1087 Keokuk, Iowa 52632 Mr. Harry W. Dahl Attorney at Law 974 73rd Street Suite 16 Des Moines, Iowa 50312 1803; 1803.1 Filed February 19, 1993 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : PAUL McDANIEL, : : File No. 846849 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N SHELLER-GLOBE, : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 1803; 1803.1 Claimant was unable to prove by a preponderance of the evidence that he had sustained an injury to his back. It was undisputed that claimant had sustained a severe permanent partial disability to the left lower extremity. The parties stipulated that claimant had sustained a 70 percent loss of use to the left lower extremity. However, claimant alleged that he also had a low back injury which was purportedly due to an abnormal gait. Claimant's family physician causally related the back condition to the abnormal gait. Two orthopedic surgeons related any back condition to degenerative changes and to the aging process. The opinions of the two orthopedic surgeons were accorded greater weight than was the opinion of the family physician. Additionally, the family physician ordered no diagnostic tests. He did not review any radiographs. The two specialists reviewed radiographs and based their opinions, in part on the reviewed xrays. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CAROL FRY, : : Claimant, : : vs. : : File Nos. 837829 and 846901 AMANA REFRIGERATION, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : Defendants. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Carol Fry, claimant against Amana Refrigeration, Incorporated, employer, Liberty Mutual Insurance Company, insurance carrier and Second Injury Fund of Iowa, defendants, for benefits as the result of an injury to the right arm which occurred on October 23, 1986 (file number 837829) and an injury to the left arm that occurred on February 9, 1987 (file number 847901). Claimant contends that she first lost work due to the second injury on February 9, 1987 and; therefore, claimant contends the proper date of injury is February 9, 1987. Defendant employer and insurance carrier contend that with respect to the second injury, claimant first complained of an injury on January 28, 1987 and they consider this to be the injury date for the second injury. Defendant Second Injury Fund of Iowa contends that claimant sustained only one injury of a cumulative nature stemming from a preexisting condition and that the injury date should be when claimant first lost time from work for the injury. A hearing was held on November 14, 1989, at Cedar Rapids, Iowa, and the case was fully submitted at the close of the hearing. Claimant was represented by Thomas J. Currie. Employer and insurance carrier were represented by Ralph W. Gearhart. Second Injury Fund of Iowa was represented by Craig Kelinson. The record consists of the testimony of Carol Fry, claimant; Gerald Fry, claimant's former husband; Vera Page 2 Hansen, witness for claimant; John Hadenfeldt, director of occupational safety; joint exhibits 1 through 4; claimant's exhibits A through G; and employer and insurance carrier exhibits 1 and 2. Several of the exhibits were duplicated by claimant and employer and insurance carrier, even though paragraph 10(2) of the hearing assignment order states that every reasonable effort should be made to avoid duplication. Duplicated exhibits inhibit the decision making process, are difficult to work with, and delay the time in which the decision can be made. The deputy ordered a transcript of the hearing. Claimant's attorney filed a claimant's contention on disputed issues and a hearing brief at the time of the hearing. All three attorneys filed outstanding posthearing briefs. injury of october 23, 1986 stipulations Claimant, employer and insurance carrier stipulated to the following matters with respect to the injury of October 23, 1986: That an employer-employee relationship existed between claimant and employer at the time of the injury. That claimant sustained an injury on October 23, 1986 which arose out of and in the course of employment with employer. That the injury was the cause of temporary disability, that claimant was entitled to and was paid temporary disability benefits from November 13, 1986 through January 1, 1987, and that claimant's entitlment to temporary disability benefits is not a matter in dispute at this time. That the commencement date for permanent partial disability benefits, in the event such benefits are awarded, is January 2, 1987. That the rate of compensation, in the event of an award, is $226.03 per week. That the charges for disputed medical expenses are fair and reasonable and were incurred for reasonable and necessary medical treatment. The defendants make no claim for credit for employee nonoccupational group health plan benefits paid to claimant prior to hearing. That defendants claim no credit for workers' compensation permanent disability benefits paid to claimant prior to hearing. That the temporary disability benefits that were paid to claimant prior to hearing were at the rate of $210.78 per week for 8.143 weeks and that this rate is less than the Page 3 stipulated rate at the time of hearing and the parties agreed to adjust this between themselves. That there are no bifurcated claims. That claimant withdrew the issue of entitlement to an Iowa Code section 85.39 examination because employer and insurance carrier agreed to pay for this examination and evaluation at the time of hearing. issues The same parties submitted the following issues for determination at the time of hearing: Whether the injury of October 23, 1986, was the cause of permanent disability. Whether claimant is entitled to permanent disability benefits, and if so, the nature and extent of benefits to which she is entitled. Whether claimant is entitled to certain medication expenses and a bill from St. Luke's Hospital for an EMG in the amount of $309. injury of february 9, 1987 STIPULATIONS Claimant, employer and insurance carrier stipulated to the following matters with respect to the injury of February 9, 1987: That an employer-employee relationship existed between claimant and employer at the time of the injury. That claimant sustained an injury on February 9, 1987 or possibly January 28, 1987 which arose out of and in the course of employment with employer. That the injury was the cause of temporary disability, that claimant was entitled to and was paid temporary disability benefits from February 9, 1987 through March 22, 1987 and that claimant's entitlement to temporary disability benefits is not a matter in dispute at this time. That the commencement date for permanent disability benefits, in the event such benefits are awarded, is March 23, 1987. That the rate of compensation, in the event of an award, is $221.30 per week. That the charges for the disputed medical expenses are fair and reasonable and were incurred for reasonable and necessary medical treatment. That defendants make no claim for credit for employee nonoccupational group health plan benefits paid to claimant Page 4 prior to hearing. That defendants claim no credit for workers' compensation permanent disability benefits paid to claimant prior to hearing. That the temporary disability benefits that were paid to claimant prior to hearing were at the rate of $228.82 per week which is more than the rate that was stipulated to at the time of the hearing and the parties agreed to adjust this matter between themselves. That there are no bifurcated claims. That claimant withdrew the issue of entitlement to an Iowa Code section 85.39 examination because defendant employer and insurance carrier agreed to pay for it at the time of hearing. issues The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on February 9, Page 5 1987 (or alternately on January 28, 1987) which was the cause of permanent disability. Whether claimant is entitled to permanent disability benefits, and if so, the nature and extent of benefits to which she is entitled. Whether claimant is entitled to certain medication expenses and a bill from St. Luke's Hospital for an EMG in the amount of $309. Whether claimant is entitled to benefits from the Second Injury Fund of Iowa. injuries of October 23, 1986 and February 9, 1987 The Second Injury Fund of Iowa submitted the following issues with respect to both injuries at the time of hearing. Whether claimant sustained two separate injuries or whether claimant sustained one cumulative injury with simultaneous onset of symptoms in both upper extremities. Whether the injuries are to the arms and hands or whether this is an injury to the body as a whole. Whether claimant's injury or injuries are permanent. Whether claimant sustained a disease rather than an injury. Whether claimant's industrial disability, if any, exceeds the combined disability of the two upper extremities separately. findings of fact injury type-injury date-second injury fund of iowa liability It is determined that claimant sustained a loss to both arms caused by a single accident. Iowa Code section 85.34(2)(s). Claimant started to work for employer on August 4, 1986 as an assembler second class (transcript page 53). Employer's general job description is, "Assemble and install parts in units." The balance of the description is a detailed explanation of the skills and responsibilities of the job which entail considerable use of the hands and arms (claimant's exhibit E, p. 24; respondents' ex. 1, page 10). Claimant first experienced problems in her fingers and hands in September of 1986. She testified: A. It was tingling all over on my hands. When I'd go to bed at night, I couldn't sleep because they would hurt so bad. Q. When you say "they", what are you referring to? Page 6 A. The hands. They just would hurt. Q. Okay. So were you experiencing problems with both hands at that time? A. Off and on. (tr. p. 57) Claimant saw the nurse, the company physician, and was referred to John S. Koch, M.D., an orthopedic surgeon. On November 10, 1986, Dr. Koch stated: Patient comes in in acute distress with the upper extremities.... *** She has acute tenderness about the wrists, the flexors of the thumb of the hands, puffiness of the metacarpal plangeal joints, soreness about the wrist level. She has exquisite tenderness over the flexor pollicis longus tendon bilaterally, triggering effects on the structure. Sensation is intact. (joint ex. 1, p. 22; res. ex. 1, p. 38) Employer's first aid report shows that claimant reported, "trouble 2 weeks-new job. hands & arms pins & needles-night-" (cl. ex. E, p. 1; res. ex. 1, p. 20). Claimant testified and the first aid reports show that the right hand was the major problem at that time (tr. p. 57; cl. ex. E, p. 1; res. ex. 1, p. 21). Employer's first aid report next shows that on November 10, 1986, the same day claimant saw Dr. Koch, that the employee was sent, "home." This report adds, "To bring under control." (cl. ex. E, p. 5; res. ex. 1, p. 25). Thus, even though the parties stipulated that claimant was paid temporary disability benefits beginning on November 13, 1986, the first aid report shows that claimant first lost time from work on November 10, 1986. Furthermore, the form 2a, shows that temporary disability benefits were begun on November 10, 1986 (res. ex. 1, p. 33). This is also confirmed by employer's attendance records (jt. ex. 2, p. 12; cl. ex. E, p. 25; res. ex. 2, p. 11). The nurse's note for October 23, 1986 further indicates that claimant reported bilateral problems in both hands and arms at that time (jt. ex. 2; cl. ex. E, p. 29; res. ex. 2, p. 16). Claimant testified, described and demonstrated in the court room with several gestures that manual movements were required by both hands and arms simultaneously to operate the RTV caulking gun to caulk the pan into the Amana Radar range (tr. pp. 58 & 85). Page 7 Dr. Koch performed right carpal tunnel surgery on November 19, 1986 (jt. ex. 1, pp. 2 & 22; jt. ex. 2, pp. 8 & 16; tr. p. 87; cl. ex. E, p. 6; res. ex. 1, p. 24). Dr. Koch's office notes and the form 2a indicate that claimant returned to work on January 5, 1987 (jt. ex. 1, p. 21; res. ex. 1, p. 39 & 33; cl. ex. B, p. 3; res. ex. 1, p. 44). Claimant then operated a screw gun which she fed with screws with the left hand until January 28, 1987 when she reported pain and swelling in her left hand (cl. ex. E, p. 7; res. ex. 1, p. 27; tr. pp. 61 & 92). Claimant again demonstrated that both right and left hand motions were required to perform this operation (tr. p. 93). Dr. Koch performed carpal tunnel surgery on the left hand on February 9, 1987 (jt. ex. 1, p. 20; jt. ex. 2, p. 19; res. ex. 1, p. 40; tr. p. 95). Approximately one week after the left carpal tunnel surgery claimant's left thumb locked up and she required a surgical release of the left thumb (jt. ex. 2, p. 20; jt. ex. 1, p. 1). Dr. Koch stated several times in his deposition that claimant suffered from a bilateral condition (jt. ex. 2, pp. 28-30). John R. Walker, M.D., an orthopedic surgeon, who evaluated claimant, stated: ...After about one month of working at the plant both of her hands became painful and the right thumb, index and long finger became numb. Both hands were also cold and swollen most of the time and it was almost impossible to grasp the tool she needed to work with.... (cl. ex. A) Dr. Walker further opined, "Unfortunately this patient has suffered from the severe effects of a stress type of syndrome and over-use type of syndrome in doing repetitive movements which her musculo-skeletal system unfortunately were not equipped to handle." (cl. ex. A). Two orthopedic physicians at the University of Iowa stated that claimant experienced bilateral hand pain (jt. ex. 1, p. 38). Therefore, (1) claimant testified to bilateral problems in September of 1986; (2) the first aid report recorded bilateral problems on October 23, 1986; (3) the nurse's notes recroded bilateral complaints; (4) Dr. Koch found a bilateral condition on November 10, 1986; (5) Dr. Koch testified to bilateral hand complaints in his deposition; (6) the University of Iowa physicians describe bilateral hand pain; and (7) Dr. Walker found a bilateral problem on August 31, 1987 from the overuse type of syndrome in doing repetitive movements. Therefore, the weight of the evidence is that claimant Page 8 sustained a cumulative injury which occurred on November 10, 1986, the first day that claimant was forced to leave work due to her disability which arose out of and in the course of employment with employer. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). It is further determined that claimant sustained all of the symptoms at the same time, shortly after claimant began work for employer, even though it was worse on the right at first and subsequently worse on the left after that. Consequently, all of the medical evidence and all of the lay evidence demonstrated a bilateral condition from the very beginning. Therefore, it is found that even though there are two reports of injury, two claim files, and two carpel tunnel surgeries, nevertheless, claimant's testimony, the companies medical record, the nurse's notes, the notes of Dr. Koch, the testimony of Dr. Koch, the report of Dr. Walker, and the Univeristy of Iowa report, all establish that claimant received a loss to both hands or arms caused by a single accident or set of circumstances. Iowa Code section 85.34(2)(s); Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Himschoot v. Second Injury Fund, Appeal Decision April 15, 1988, affirmed, Polk County District Court January 30, 1989, Iowa Court of Appeals, affirmed on February 22, 1990 in an unpublished decision. This case is distinguishable from Babe v. Greyhound Lines, Inc., No. 89-113 (Iowa filed March 27, 1990) because in Babe the claimant suffered distinguishable separate injuries. In order to be entitled to benefits under Iowa Code section 85.64 from the second injury fund, claimant must first prove a permanent injury to a scheduled member and second prove a separate permanent injury to a second scheduled member. Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, section 17-4, stresses that the employee must have a loss to another member or organ. By foot note one, the book points out that an 85.34(2)(s) injury is a single incident and shall be compensated as such. Manifestation of one injury on two occasions does not satisfy the requirement of a second loss. McMurrin v. Quaker Oats Company, I Iowa Industrial Commissioner Reports 222 (1981). The McMurrin case is quite similar to this case because there the claimant had developed what was described as de Quervain disease or tendonitis in both wrists. It was held that the claimant did not have a prior loss of a member as contemplated by Iowa Code section 85.64. Therefore, it is determined that claimant is not entitled to second injury fund benefits in the instant case. The injury date for this case is determined to be November 10, 1986, when claimant first lost work due to the disability. The rate of compensation on November 10, 1986 is the rate of compensation which is applicable to this case. There is no date of a second injury because there is no separate second injury. permanent disability-causal connection-entitlement It is determined that the bilateral carpal tunnel syndrome cumulative injury of November 10, 1986, is the Page 9 cause of permanent disability. Dr. Koch, the operating surgeon, however, did not believe that the injury was the cause of permanent disability. He determined that claimant was suffering from rheumatoid arthritis, a systemic disorder or disease of the whole body which was being aggravated by her work. He said she had a temporary aggravation of her difficulty which necessitated the surgical decompressions. Dr. Koch concluded, "I do not feel that she will have permanent partial disability as the result of her work or aggravation by the work." (jt. ex. 1, p. 17; res. ex. 2, p. 46; res. ex. 1). Dr. Koch opined in his deposition that he did not feel that there was any permanent impairment from either the right or left hand surgeries (jt. ex. 2, pp. 17 & 22). Dr. Koch believed that claimant's continuing complaints of soreness in her hands, aching pains at night, stiffness, swelling and catching of the ring finger on her left hand with bending activities were related to her underlying general systemic or body condition of rheumatoid arthritis (jt. ex. 2, pp. 23 & 24). Dr. Koch then referred claimant to Michael S. Brooks, M.D., a rheumatologist in his medical group (jt. ex. 1, p. 19; res. ex. 2, p. 41; jt. ex. 2, p. 26). A laboratory blood test taken by Dr. Koch to determine whether there was a rheumatoid factor resulted in a seronegative (blood serum negative) result (jt. ex. 1, p. 19; res. ex. 2, p. 41; jt. ex. 2, p. 26). Dr. Koch completed his testimony with the following comprehensive summary: Q. What is your basic diagnosis of Mrs. Fry's problem as her attending physician? A. As I've indicated, I feel Mrs. Fry is afflicted with a generalized arthritic disorder of the whole body which I became aware of in the course of treating her for conditions related to temporary aggravation in local areas of her body by activities in her employment. Those temporary aggravations were relieved without permanent impairment being incurred by the work activity and that she continued to this day suffering from a generalized disease process unrelated to her employment. And I anticipate that she will continue in the future to be afflicted with this whole body disorder requiring medical, possibly physical, possibly surgical management for difficulties that will arise but in no way related to her former employment. (jt. ex. 2, pp. 27 & 28) Dr. Koch acknowledged that he issued a return to work slip on March 19, 1987, which returned claimant to work as of March 23, 1987 with restrictions of no lifting, pulling or pushing 10 to 20 pounds and a restriction on finger movements and wrist-hand movements (jt. ex. 1, p. 12; jt. ex. 2, pp. 37 & 38). It should be noted that Dr. Koch's restrictions are not consistent with a rating of zero Page 10 permanency. Even though Dr. Koch was the treating physician, and even though his opinion may appear to be very convincing on the surface, Dr. Koch's testimony is determined not to be the weight of the evidence on the issue of causal connection and entitlement to permanent disability. Dr. Koch admitted in his deposition testimony that he did not administer any sort of grip strength test on claimant. He did not measure the pinch between the thumb and forefinger on either or both hands. Dr. Koch acknowledged that he did not have any measurement figures at all. Dr. Koch explained that he did not take any measurements because these tests require the total cooperation on the part of the patient and if you get subjective responses rather than objective responses the readings are unreliable. Furthermore, the doctor conceded, "My examination here was not for purposes of evaluation as to degree of impairment or disability and therefore critical measurements were not made of these." Dr. Koch further admitted, "I did not make any record of measurement of degree of motion, flexion, extension or rotation involving the extremities." (jt. ex. 2, pp. 40 & 41). Therefore, it is clear that Dr. Koch did not use the Guides to the Evaluation of Permanent Impairment, third edition, published by the American Medical Association. He did not use the Orthopedic Surgeon's Guide to arrive at his conclusions. And he did not take any measurements which would form the basis for an accurate evaluation of impairment based entirely on professional judgement. Therefore, Dr. Koch's statement of zero impairment must be disregarded as unreliable. The following evidence of record is totally irreconcileable with Dr. Koch's opinion that claimant suffered no permanent impairment from this injury. Even though claimant was released to return to work after the second and third surgeries on March 23, 1987 she was discharged by employer for the reason that she was unfit to perform factory work (cl. ex. E, p. 33; res. ex. 1, p. 19). This discharge was based on Dr. Koch's release of March 19, 1987. Claimant testified that she was told by employer that she was unable to perform factory work (tr. pp. 63-75). John B. Hadenfeldt, director of occupational safety, testified, "With the medical reports that we had at that time Carol had weight restrictions, 10 to 20 pounds, she also had permanent restrictions of finger movement and hand and wrist movement, and at that time we didn't have any jobs that we could put her into." Dr. Brooks completed a very thorough examination of claimant on June 22, 1987. Dr. Brooks is a rheumatologist, a specialist in arthritis. Dr. Brooks stated: A CBC done in April revealed a normal hemoglobin of 14.3 with a white count of 9.2 and a sedimentation rate of 3. Her rheumatoid factor at that time was negative and I note that a rheumatoid factor done back in 1986 by Dr. Bickel was also negative. Page 11 On the basis of today's examination and the laboratory tests available thus far, I feel that the most likely diagnosis would be one of a fibrositis syndrome with a questionable underlying mild polyarticular arthritis. She does appear to have had documented carpal tunnel syndrome and this may very well have precipitated this flareup [sic] in her fibrositis symptoms. (jt. ex. 1, p. 14; res. ex. 1, p. 40) Thus, Dr. Brooks, the arthritis specialist, did not find that claimant had rheumatoid arthritis. When Dr. Koch was asked whether fibrositis and polyarticular arthritis were the same, he gave an answer which appears to be equivocal (jt. ex. 2, pp. 41 & 42). Claimant was also seen by William W. Eversman, Jr., M.D., an orthopedic surgeon in Dr. Koch's medical group, on January 15, 1988 and again on February 24, 1988. Like Dr. Brooks, he examined claimant's entire history and did a very thorough physical examination. He did not find that claimant had rheumatoid arthritis and never mentioned this condition in either of his extensive office notes. He suggested that she be examined at the University of Iowa. Dr. Eversman refused to give an impairment rating because he did not believe that she could adequately cooperate with the permanency rating series of tests in view of her views that she expressed to him at that time (jt. ex. 1, pp. 30-33). By comparison with Dr. Koch, it should be noted that he did not attempt to propose a zero impairment rating, when he felt that claimant could not or would not cooperate with the necessary tests, but candidly admitted that he could not give a rating. Claimant was examined at the University of Iowa on February 1, 1989 by Dr. Newport and Dr. Steyers (full names unknown). These doctors did not make a finding of rheumatoid arthritis, but rather assessed, "Industrial hand pain of unknown etiology" (jt. ex. 1, p. 38). Neither doctor attempted to evaluate claimant's permanent impairment. A copy of their report was sent to Dr. Eversman (jt. ex. 1, p. 38). Thus, it is determined that Dr. Koch's determination that claimant did not sustain a permanent impairment or disability is unreliable because (1) his determination that claimant suffered from rheumatoid arthritis is not supported by Dr. Brooks, a rheumatologist; Dr. Eversman, an orthopedic surgeon; or the two orthopedic doctors at the University of Iowa; (2) two previous laboratory blood serum tests were negative for rheumatoid arthritis; and (3) Dr. Koch candidly admitted that he really didn't perform an impairment evaluation on claimant and he took no measurements of any kind to support his opinion that claimant did not sustain any permanent impairment. The weight of the evidence is that claimant did sustain a permanent impairment. Dr. Brooks wrote on March 28, 1988: Page 12 In terms of whether these symptoms were caused or aggravated by her work at Amana, I would state that her excessive use of the hands while working at Amana could certainly have caused the carpal tunnel syndrome and initial symptoms that she experienced while she was there. ...and that at least by her history the entirety of her problems involving the hands began with her employment at Amana. I would therefore consider them related... (jt. ex. 1, p. 34) The omitted portion in the quotation above is the doctor's comments on reflex sympathetic dystrophy syndrome. These words are omitted because claimant did not prove that she has reflex sympathetic dystrophy syndrome in the first place, save that it was caused by this injury. A friend of hers was diagnosed with this disease and claimant requested the doctors to examine her for it also. None of the doctors found that claimant had reflex sympathetic dystrophy syndrome. Dr. Brooks did establish that claimant's employment, "could certainly have caused the carpal tunnel syndrome." (jt. ex. 1, p. 34). Dr. Walker found, "Unfortunately this patient has suffered from the severe effects of a stress type of syndrome and over-use type of syndrome in doing repetitive movements which her musculo-skeletal system unfortunately were not equipped to handle." (cl. ex. A). The testimony of Dr. Brooks and Dr. Walker, coupled with claimant's testimony that she had no prior problems with her hands before this employment (tr. p. 80) which was corroborated by her former husband (tr. pp. 114, 115) and claimant's witness Hansen (tr. p. 121) and with an absence of any medical evidence in the record of any problems with her hands prior to 1986 added to Dr. Walker's opinion which is based on this work injury that: At the present time I would state that she has a permanent, partial impairment of the left, upper extremity amounting to 20% of this member. As far as the right, upper extremity is concerned, it is my opinion that she has a permanent, partial impairment of 8% of the entire left, upper extremity. (cl. ex. A, p. 4) In conclusion, Dr. Koch's testimony that claimant did not sustain a permanent impairment is determined to be unreliable. The testimony of Dr. Brooks to the effect that claimant's impairment and disability could possibly be related to this employment injury, although insufficient alone to support a finding of causal connection, when coupled with Dr. Walker's report, which is built on the history of this injury, along with the nonexpert testimony of claimant, claimant's husband, and Hansen is sufficient to establish a causal connection of this injury to permanent Page 13 impairment and disability. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966); Anderson v. Oscar Mayer and Company, 217 N.W.2d 531, 536 (Iowa 1974). The weight of the expert and nonexpert evidence in this case establishes that the injury was the cause of permanent disability. Klinker v. Wilson Foods Corp., Thirty-fourth Biennial Report of the Industrial Commissioner 167, 168 (Appeal Decision July 27, 1979). A cause is proximate if it is a substantial factor in bringing about the result. It only needs to be one cause, it does not have to be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). Based on agency experience, technical competence, and specialized knowledge which may be utilized in the evaluation of the evidence [Iowa Administrative Procedure Act 17A.14(5)] it is determined that Dr. Walker's impairment ratings are higher than are normally experienced for similar injuries when rated by other orthopedic surgeons. It is determined in this case that claimant has sustained a 10 percent impairment to the left upper extremity and a 5 percent impairment to the right upper extremity. Ten percent of the upper extremity converts to 6 percent of the body as a whole. Five percent of the upper extremity converts to 3 percent of the body as a whole. Table 3, page 20, Guides to the Evaluation of Permanent Impairment, third edition. Six percent of the whole person and 3 percent of the whole person combines to 9 percent on the combined values chart at page 246 of the Guides. Nine percent of 500 weeks is 45 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(s). The proper rate of compensation at the time of this injury on November 10, 1986, is $226.03 per week according to the stipulation of the parties for this approximate injury date. Claimant's testimony concerning her residual complaints after the two carpal tunnel surgeries and the trigger thumb release, as well as her description of the activities that she can no longer do or is restricted in doing, are quite similar to other claimants in carpal tunnel syndrome cases and support the amount of impairment that is determined for claimant in this case (tr. pp. 73-79, 96-104). medical expenses The parties stipulated that the charges for disputed medical expense are fair and reasonable and were incurred for reasonable and necessary treatment. The issue is whether they are causally connected to this injury. Claimant's attorney asserted that claimant was seeking reimbursement for the prescription medications ordered by Dr. Koch during his period of treatment (ex. D, pp. 3-12) and by Dr. Brooks during his period of treatment of claimant (ex. D, pp. 1 & 2). Claimant testified that all of these prescriptions prescribed by these two doctors would be for her hands and arms. Claimant also testified that Dr. Brooks ordered the EMG in the amount of $309 from St. Luke's Hospital (cl. ex. C). Page 14 Dr. Koch verified in his deposition that he did prescribe Prednisone, Disalcid and Orudis for claimant. (jt. ex. 2, pp. 10, 23 & 26). These medications are further verified by Dr. Koch's notes as well as the medication Indocin (jt. ex. 1, pp. 19-22; res. ex. 1, pp. 38-41). Therefore, it is determined that these prescriptions were caused by this injury because they were prescribed by the treating physician during the period of his treatment based on Dr. Koch's diagnosis of the injury. These prescription items total $389.59. Claimant is entitled to recover $389.59 for these prescription drugs ordered by Dr. Koch. At the same time, a reading of Dr. Brooks' office notes and reports does not disclose that he ordered the medications for which claimant seeks reimbursement, or that he ordered them for this particular injury, nor is there any evidence in the materials from Dr. Brooks that he ordered the EMG on September 8, 1987 which cost $309. Furthermore, this EMG date does not tie in with any of the times which Dr. Brooks examined claimant. Therefore, it is determined that claimant is not entitled to any of the other medication expenses shown for Dr. Brooks or any other doctors in claimant's exhibit D, pages 1 through 12. Claimant is not entitled to recover the cost of the EMG. taxation of costs Claimant submitted an itemized list of costs with the prehearing report. The parties stipulated that these costs had been paid by claimant. Claimant is entitled to recover these costs as follows: Medical report of Dr. John S. Koch-$30, medical report of Dr. John R. Walker-$85 and deposition transcript of Dr. Koch-$48.49. These items total $163.49 and claimant is entitled to recover these costs. Division of Industrial Services Rule 343-4.33(2) and 343-4.33(6). conclusions of law The following conclusions of law are made: That claimant sustained a cumulative injury of bilateral carpal tunnel syndrome which occurred simultaneously in both the right and left hand and wrist on November 10, 1986, which arose out of and in the course of employment with employer. Iowa Code section 85.3; Iowa Code section 85.34(2)(s); 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). Furthermore, the cites in the findings of fact to McKeever, Simbro, Himschoot, McMurrin, and Lawyer and Higgs, also apply to this conclusion of law. It is determined that the injury is the cause of permanent disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). Furthermore, citations to Giere and Anderson in the findings of fact also apply to Page 15 this conclusion of law. That claimant is entitled to 45 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(s). That claimant is entitled to recover $389.59 in medical expenses for prescription drugs. Iowa Code section 85.27. That claimant did not sustain the burden of proof by a preponderance of the evidence that she sustained separate injuries to the body members specified in Iowa Code section 85.64 and; therefore, claimant is not entitled to any benefits from the Second Injury Fund of Iowa. That claimant did not sustain the burden of proof by a preponderance of the evidence that the other prescription drugs or the EMG expense was caused by this injury and therefore, claimant is not entitled to recover these medical expenses. Iowa Code section 85.27. That claimant is entitled to recover costs as designated above in the total amount of $163.49 from defendant employer and insurance carrier. order Page 16 THEREFORE, IT IS ORDERED: That defendant employer and insurance carrier pay to claimant forty-five (45) weeks of permanent partial disability benefits at the rate of two hundred twenty-six and 03/100 dollars ($226.03) per week in the total amount of ten thousand one hundred seventy-one and 35/100 dollars ($10,171.35) commencing on January 6, 1987. That these benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendant employer and insurance carrier pay to claimant or the provider of services three hundred eighty-nine and 59/100 dollars ($389.59) for prescription drug expense ordered by Dr. Koch. That the costs of this action, including the cost of the transcript of the hearing and the one hundred sixty-three and 49/100 dollars ($163.49) defined above, are charged to defendants pursuant to Division of Industrial Services Rule 343-4.33. That all defendants file any claim activity reports which might be requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ____ day of June, 1990. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Thomas J. Currie Attorney at Law 3401 Williams Blvd. S.W. PO Box 998 Cedar Rapids, Iowa 52406-0998 Mr. Ralph W. Gearhart Attorney at Law PO Box 2107 Cedar Rapids, Iowa 52406-2107 Mr. Craig Kelinson Assistant Attorney General Hoover State Office Bldg Des Moines, Iowa 50319 Page 1 51401; 51402.40; 51402360; 52206; 52209; 3201, 53202; 53203; 51803; 52501; 2700; 52907 Filed June 20, 1990 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : CAROL FRY, : : Claimant, : : vs. : : File Nos. 837829 and 846901 AMANA REFRIGERATION, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : Defendants. : ___________________________________________________________ 51401; 51402.40; 51402.60; 52206; 52209; 3201; 53202; 53203 Claimant did not prove separate injuries. All of the lay evidence and medical evidence demonstrated bilateral carpal tunnel syndrome that occurred simultaneously, even though the right hand was worse at first and the left hand was worse later. It was determined that this was an 85.34(2)(s) injury and claimant was not entitled to second injury fund benefits. 51803 Treating physicians opinion was rejected. His diagnosis of rheumatoid arthritis was not supported by the other four doctors in the case, two of whom were in his own office. His imposition of restrictions was irreconcilable with his opinion that there was no impairment. He admitted he took no measurements and made no evaluation; therefore, he did not have any basis for even a rating based on professional judgment. Claimant's evaluator gave ratings of 20 percent and 8 percent, but those were determined to be higher than similar cases and were cut back to 10 percent and 5 percent, all of which converted and combined to 9 percent of 500 weeks or 45 weeks of permanent partial disability benefits. Page 2 5201, 2700 Claimant allowed the prescription drugs she proved. The others and an EMG she did not prove were disallowed. 52907 All costs and certain requested costs were allowed to claimant.