Page 1
 
 
 
 
 
 
 
 
 
 
 
before the iowa industrial commissioner
 
____________________________________________________________
 
:
 
THOMAS P. STARR, :
 
:
 
Claimant, :
 
: File No. 869716
 
vs. :
 
:
 
WINNEBAGO INDUSTRIES, : A R B I T R A T I O N
 
:
 
Employer, : D E C I S I O N
 
Self-Insured, :
 
Defendant. :
 
___________________________________________________________
 
 
 
introduction
 
 
 
This is a proceeding in arbitration brought by Thomas
 
P. Starr, claimant, against Winnebago Industries, employer,
 
and self-insured defendant, for benefits as a result of an
 
injury that occurred on November 9, 1987. A hearing was
 
held in Mason City, Iowa, on August 15, 1990, and the case
 
was fully submitted at the close of the hearing. Claimant
 
was represented by E. W. Wilcke and defendant was
 
represented by Timothy Wegman. The record consists of the
 
testimony of Thomas P. Starr, claimant, Charlene Starr,
 
claimant's wife, Ted D. Broege, claimant's friend, Darrell
 
J. Bonner, manager of safety, health and workers'
 
compensation; claimant's exhibits 1 through 16; and
 
defendant's exhibits 1 through 23. The parties failed to
 
get together prior to hearing and prepare a joint exhibit,
 
as directed by paragraph 10 of the hearing assignment order
 
and, therefore, most of the exhibits were duplicated.
 
Duplicated exhibits inhibit and delay the decision making
 
process.
 
 
 
stipulations
 
 
 
The parties stipulated to the following matters:
 
 
 
That an employer-employee relationship existed between
 
claimant and employer at the time of the injury.
 
 
 
That claimant sustained an injury on November 9, 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 10.143 weeks of
 
workers' compensation temporary disability benefits for the
 
period from November 15, 1987 to January 24, 1988 prior to
 
hearing at the rate of $191.10 per week; and, that temporary
 
disability benefits are no longer a disputed matter in this
 
case at this time.
 
 
 
That the type of permanent disability, if the injury is
 
found to be a cause of permanent disability, is industrial
 
disability to the body as a whole.
 
 
 
 
 
Page 2
 
 
 
 
 
 
 
 
 
 
 
That the commencement date for permanent disability
 
benefits in the event such benefits are awarded is January
 
24, 1988.
 
 
 
That the rate of compensation in the event of an award
 
is $191.10 per week.
 
 
 
That claimant's entitlement to medical benefits is not
 
in dispute at this time.
 
 
 
That defendant seeks no credit for employee
 
nonoccupational group health plan benefits paid to claimant
 
prior to hearing.
 
 
 
That defendant did overpay claimant $81.79 in temporary
 
disability benefits and that this overpayment can be used by
 
defendant as a credit against any award of permanent
 
disability benefits.
 
 
 
That there are no bifurcated claims.
 
 
 
issues
 
 
 
The parties submitted the following issues for
 
determination at the time of the hearing:
 
 
 
1. Whether the injury was the cause of permanent
 
disability; and,
 
 
 
2. Whether claimant is entitled to permanent
 
disability benefits, and, if so, the extent of benefits to
 
which he is entitled.
 
 
 
findings of fact
 
 
 
causal connection - entitlement - permanent disability
 
 
 
Claimant, born April 7, 1964, was 23 years old at the
 
time of the injury and 26 years old at the time of the
 
hearing. He was a high school graduate without further
 
formal education. Prior employments include working on
 
construction for about a year and working in a Qwik Shop for
 
approximately one and one-half years. Claimant started to
 
work for employer in November of 1983 and was terminated for
 
absenteeism and tardiness approximately four and one-half
 
years later on April 26, 1988. Claimant admitted that he
 
had two other minor back incidents prior to this injury. In
 
1982, he pulled some back muscles. In 1984, he had a
 
contusion of the back.
 
 
 
Claimant contends he had no further consequences from
 
these injuries and was performing manual labor every day at
 
the time of this injury which occurred on November 9, 1987.
 
At that time, claimant felt a sudden pain in his left low
 
back while twisting and trying to unload some glue bars
 
(Claimant's Exhibit 16, page 4). Claimant saw a physician's
 
assistant at the clinic who referred him to Byron H.
 
Carlson, M.D. On November 12, 1987, he diagnosed acute
 
lumbar strain (Cl. Ex. 4, p. 9). Dr. Carlson referred
 
 
 
 
 
Page 3
 
 
 
 
 
 
 
 
 
claimant to Kenneth B. Washburn, M.D., a doctor of physical
 
medicine and rehabilitation. Dr. Washburn saw claimant on
 
December 4, 1987, December 11, 1987, January 6, 1988, and on
 
January 22, 1988 and released claimant to return to work on
 
January 24, 1988. Dr. Washburn prescribed medications,
 
physical therapy and a work hardening program (Cl. Ex. 4,
 
pp. 4-5). Dr. Washburn said that the injury was caused by
 
claimant's employment (Cl. Ex. 16, p. 53).
 
 
 
Claimant did not see Dr. Washburn from January of 1988
 
until September 23 and September 30, 1988, at which time Dr.
 
Washburn ordered a physical capacity examination and
 
referred claimant to an orthopedic surgeon (Cl. Ex. 4, p.
 
5). On October 12, 1988, Dr. Washburn reported the results
 
of the physical capacity examination on September 30, 1988
 
(Cl. Ex. 4, p. 11; Def. Ex. 1, p. 11) were as follows:
 
 
 
[H]e can sit up to three hours a day in a day in
 
an eight hour day at one time. He can stand up to
 
two hours per day at one time. He can walk up to
 
two hours at one time, in one day. He can lift
 
and carry up to 35 pounds on a frequent basis. He
 
can occasionally lift from 36 to 50 pounds. He
 
can bend and stoop about one-third of the time
 
during the day. He can push and pull carts
 
weighing up to 14 pounds. He can reach above
 
shoulder level with 30 pounds weights on a
 
frequent basis. He can handle grip, rotate head,
 
operate foot controls on a frequent basis and he
 
can drive up to one-third of an eight hour day.
 
 
 
(Cl. Ex. 4, p. 8; Def. Ex. 1, p. 12)
 
 
 
Claimant did not see Dr. Washburn again until August
 
30, 1989, at which time he assessed a 2 percent disability
 
for a continued mild myofascial pain syndrome (Cl. Ex. 1, p.
 
1; Def. Ex. 1, p. 15l; Cl. Ex. 16, p. 56). This 2 percent
 
was not affected by the recurrence of back pain claimant had
 
on February 28, 1989 through March 16, 1989 (Cl. Ex. 1, p.
 
15; Cl. Ex. 16, pp. 57-58). The doctor said his ratings
 
were based upon the Guides to Evaluation of Permanent
 
Impairment, third edition published by the American Medical
 
Association (Cl. Ex. 16, p. 58). Claimant's only limitation
 
of motion was a mild limitation in forward flexion (Ex. 16,
 
p. 11). The doctor affirmed that this was a permanent
 
impairment (Cl. Ex. 16, p. 58). The doctor confirmed that
 
it was still his opinion as of the date of his deposition on
 
September 6, 1989 that claimant has a 2 percent permanent
 
impairment (Cl. Ex. 16, p. 61). He estimated that claimant
 
would be able to perform moderate heavy labor in the future
 
without too much difficulty if he continues his exercises
 
and takes proper care of his back. He did not anticipate
 
frequent future episodes (Cl. Ex. 16, pp. 62-63). He said
 
his final diagnosis was somewhere between low back strain of
 
the muscles and myofascial pain syndrome (Cl. Ex. 16, p.
 
65). The orthopedic surgeon who evaluated claimant for Dr.
 
Washburn was Michael W. Crane, M.D., who did not believe
 
claimant had a ruptured disc or any other lesion that needs
 
to be worked up significantly (Cl. Ex. 16, p. 68). Dr.
 
Washburn recorded several times in his office notes and also
 
 
 
 
 
Page 4
 
 
 
 
 
 
 
 
 
testified at the time of his deposition that claimant failed
 
to keep his regularly scheduled appointments on several
 
occasions with himself, the physical therapist, and two
 
specialists where Dr. Washburn had set up an appointment.
 
Claimant both failed to show up and failed to call in to
 
explain his absence (Cl. Ex. 16, p. 61).
 
 
 
Claimant called attention to employment evaluations
 
where he received good ratings. Defendant called attention
 
to employment ratings where claimant was not completely
 
satisfactory. Defendant did prove that claimant was
 
disciplined for several times that he was either absent or
 
tardy from work between 1984 and 1988 which caused his
 
termination on April 26, 1988 (Def. Exs. 8 through 15).
 
Claimant contends he could not keep his medical appointments
 
because he did not have any money; however, defendant showed
 
that claimant received regular checks in payment of workers'
 
compensation benefits from November 24, 1987 through January
 
26, 1988 (Def. Exs. 9 through 23).
 
 
 
Claimant testified that he either cannot do or is
 
limited in doing the following tasks: gardening, remodeling
 
his house, siding his house, lifting his children,
 
performing automotive repair work, doing yard work,
 
painting, and driving an automobile. His wife testified
 
that his ability to fish, hunt, play golf, work on the yard,
 
fix up their house, pick up their children, drive the car,
 
repair the car and work in the garden has been impaired.
 
Claimant's friend, Broege, testified that he does claimant's
 
work at claimant's home. They no longer take long car trips
 
or exploratory fishing trips.
 
 
 
Claimant's wife testified that he missed work and
 
medical appointments because sometimes the car broke down,
 
she was pregnant, the kids were sick, claimant was too stiff
 
to get out of bed, and claimant's medications made him so
 
drowsy that he could not wake up. Claimant testified that
 
he missed work and medical appointments because of financial
 
reasons, car problems and bad weather.
 
 
 
Claimant testified that he was earning $7.50 when he
 
was terminated by employer and was now earning $7.94 with
 
his current employer. He moved to obtain the current
 
employment and now lives in a higher cost of living area.
 
He testified that his rent has doubled. After he moved, it
 
was too far away to see Dr. Washburn. He has not seen Dr.
 
Washburn since August of 1989. The only medications he
 
takes are Tylenol and Advil.
 
 
 
Claimant had periods of unemployment after he was
 
fired. He applied for jobs several places, completed
 
applications and job interviews, and he believed that he was
 
turned down for several jobs because he had a back injury
 
and a workers' compensation claim. Claimant has had two
 
rather long-term employers since he was terminated by
 
employer. Claimant contends that he obtained his current
 
job because he did not disclose his job injury to this
 
employer. Darrell Bonner, claimant's workers' compensation
 
manager, testified that claimant was terminated as a result
 
of several tardies and absences where claimant did not call
 
 
 
 
 
Page 5
 
 
 
 
 
 
 
 
 
in or provide the medical data required to explain the
 
absences.
 
 
 
In brief summary, it is determined that claimant
 
suffered a back strain caused by his employment which
 
resulted in a 2 percent permanent functional impairment to
 
the body as a whole. Claimant also has several restrictions
 
imposed by Dr. Washburn which were not demonstrated to be
 
removed which would impair his ability to find other
 
employment if they were known to prospective employers.
 
Likewise, the fact that claimant has sustained a
 
work-related back injury and litigated a workers'
 
compensation case does tend to limit his employability.
 
Claimant's young age, in the mid-20's, makes his industrial
 
disability less severe than it would for an older employee
 
in their peak earning years. Claimant has the advantage of
 
a high school education. He received average grades in high
 
school. He has performed well on most of his jobs and has
 
demonstrated versatility in learning a number of different
 
jobs. Claimant did not express an interest in vocational
 
rehabilitation. He is performing his present job in a
 
satisfactory manner.
 
 
 
Wherefore, based upon the foregoing considerations, and
 
all the factors used in determining industrial disability,
 
and based upon agency expertise, it is determined that
 
claimant has sustained a 10 percent industrial disability to
 
the body as a whole and is entitled to 50 weeks of permanent
 
partial disability benefits.
 
 
 
conclusions of law
 
 
 
Wherefore, based upon the evidence presented and the
 
foregoing and following principles of law, the following
 
conclusions of law are made:
 
 
 
That claimant did sustain the burden of proof by a
 
preponderance of the evidence that the injury of November 9,
 
1987 was the cause of permanent disability. Bodish v.
 
Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl
 
v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).
 
 
 
That claimant has sustained an industrial disability in
 
the amount of 10 percent to the body as a whole. Iowa Code
 
section 85.34(2)(u).
 
 
 
 
 
 
 
 
 
Page 6
 
 
 
 
 
 
 
 
 
order
 
 
 
THEREFORE, it is ordered:
 
 
 
That defendant pay to claimant fifty (50) weeks of
 
permanent partial disability benefits at the rate of one
 
hundred ninety-one and 10/100 dollars ($191.10) per week, in
 
the total amount of nine thousand five hundred fifty-five
 
dollars ($9,555.00) commencing on January 24, 1988, as
 
stipulated by the parties.
 
 
 
That defendant is entitled to a credit in the amount of
 
eighty-one and 79/100 dollars ($81.79) for the overpayment
 
of temporary disability benefits, as stipulated to by the
 
parties.
 
 
 
That this award is to be paid in a lump sum.
 
 
 
That interest will accrue, pursuant to Iowa Code
 
section 85.30.
 
 
 
That the costs of this action are charged to defendant,
 
pursuant to Division of Industrial Services Rule 343-4.33.
 
 
 
That defendant file claimant activity reports as
 
requested by this agency, pursuant to Division of Industrial
 
Services Rule 343-3.1.
 
 
 
Signed and filed this ______ day of September, 1990.
 
 
 
 
 
 
 
 
 
______________________________
 
WALTER R. McMANUS, JR.
 
DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies to:
 
 
 
Mr E W Wilcke
 
Attorney at Law
 
826 1/2 Lake St
 
P O Box 455
 
Spirit Lake IA 51360
 
 
 
Mr Stephen W Spencer
 
Mr Timothy W Wegman
 
Attorneys at Law
 
218 6th Ave Ste 300
 
P O Box 9130
 
Des Moines IA 50306
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
51401, 51402.40, 51803
 
Filed September 4, 1990
 
Walter R. McManus
 
 
 
before the iowa industrial commissioner
 
____________________________________________________________
 
:
 
THOMAS P. STARR, :
 
:
 
Claimant, :
 
: File No. 869716
 
vs. :
 
:
 
WINNEBAGO INDUSTRIES, : A R B I T R A T I O N
 
:
 
Employer, : D E C I S I O N
 
Self-Insured, :
 
Defendant. :
 
___________________________________________________________
 
 
 
51401; 51402.40; 51803
 
Nonprecedential determination of industrial disability.
 
Claimant had a 2% permanent functional impairment of the
 
lumbar spine and a number of doctor's restrictions which
 
took him out of the heavy labor area and placed in the light
 
to medium work area. Claimant, age 25, was young and
 
adaptable and had a high school education. He was earning
 
more now than when he was injured but had trouble finding
 
permanent employment again.
 
 
 
 
 
 
Page 1
 
 
 
 
 
 
 
 
 
before the iowa industrial commissioner
 
____________________________________________________________
 
:
 
BERNARD SCHNEIDER, :
 
:
 
Claimant, :
 
:
 
vs. :
 
: File No. 869747
 
PRAIRIE CONTRACTORS, INC., :
 
: A P P E A L
 
Employer, :
 
: D E C I S I O N
 
and :
 
:
 
HOME INSURANCE COMPANY, :
 
:
 
Insurance Carrier, :
 
Defendants. :
 
___________________________________________________________
 
The record, including the transcript of the hearing before
 
the deputy and all exhibits admitted into the record, has
 
been reviewed de novo on appeal. The decision of the deputy
 
filed October 25, 1991, is affirmed and is adopted as the
 
final agency action in this case, with the following
 
additional analysis:
 
Defendants challenged the reasonableness of a portion of the
 
medical fees claimant is seeking. The record shows these
 
fees were paid by claimant. There is no contrary evidence
 
from defendants indicating the fees were unreasonable.
 
Payment of medical fees can constitute evidence of their
 
reasonableness and, in the absence of contrary evidence, is
 
sufficient to carry claimant's burden of proof on this
 
issue. To the extent McClellon v. Iowa Southern Utilities,
 
Appeal Decision, January 31, 1992 (#894090) differs, that
 
holding is hereby overruled on this limited ground.
 
Defendants shall pay the costs of the appeal, including the
 
preparation of the hearing transcript.
 
 
 
 
 
Signed and filed this ____ day of April, 1992.
 
 
 
 
 
 
 
________________________________
 
BYRON K. ORTON
 
INDUSTRIAL COMMISSIONER
 
 
 
 
 
Copies To:
 
 
 
Mr. James Spellman
 
 
 
 
 
Page 2
 
 
 
 
 
 
 
 
 
Attorney at Law
 
1119 High
 
Des Moines, Iowa 50309
 
 
 
Ms. Dorothy L. Kelley
 
Attorney at Law
 
500 Liberty Building
 
Des Moines, Iowa 50309
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
2700
 
Filed April 20, 1992
 
BYRON K. ORTON
 
LPW
 
before the iowa industrial commissioner
 
____________________________________________________________
 
:
 
BERNARD SCHNEIDER, :
 
:
 
Claimant, :
 
:
 
vs. :
 
: File No. 869747
 
PRAIRIE CONTRACTORS, INC., :
 
: A P P E A L
 
Employer, :
 
: D E C I S I O N
 
and :
 
:
 
HOME INSURANCE COMPANY, :
 
:
 
Insurance Carrier, :
 
Defendants. :
 
___________________________________________________________
 
 
 
 
 
 
 
2700
 
Payment of medical fees can constitute evidence of the
 
reasonableness of the fees and in the absence of contrary
 
evidence is sufficient to carry claimant's burden. This
 
overrules a holding in McClellon v. Iowa Southern Utilities,
 
Appeal Decision, January 31, 1992 (#894090).
 
 
 
 
 
 
Page 1
 
 
 
 
 
 
 
 
 
 
 
before the iowa industrial commissioner
 
____________________________________________________________
 
:
 
BERNARD SCHNEIDER, :
 
:
 
Claimant, :
 
:
 
vs. :
 
: File No. 869747
 
PRAIRIE CONTRACTORS, INC., :
 
: A R B I T R A T I O N
 
Employer, :
 
: D E C I S I O N
 
and :
 
:
 
HOME INSURANCE COMPANY, :
 
:
 
Insurance Carrier, :
 
Defendants. :
 
___________________________________________________________
 
 
 
 
 
STATEMENT OF THE CASE
 
 
 
This is a proceeding in arbitration brought by Bernard
 
Schneider, claimant, against Prairie Contractors, Inc.,
 
employer (hereinafter referred to as Prairie), and Home
 
Insurance Company, insurance carrier, defendants, for
 
workers' compensation benefits as a result of an alleged
 
injury on August 19, 1987. On September 25, 1991, a hearing
 
was held on claimant's petition and the matter was consid
 
ered fully submitted at the close of this hearing.
 
 
 
The parties have submitted a prehearing report of con
 
tested issues and stipulations which was approved and
 
accepted as a part of the record of this case at the time of
 
hearing. The oral testimony and written exhibits received
 
during the hearing are set forth in the hearing transcript.
 
 
 
According to the prehearing report, the parties have
 
stipulated to the following matters:
 
 
 
1. On August 19, 1987, claimant received an injury
 
which arose out of and in the course of his employment with
 
Prairie Contractors, Inc.
 
 
 
2. Claimant is seeking temporary total disability or
 
healing period benefits from October 24, 1988 through July
 
21, 1989 and defendants agree that he was not working during
 
this period of time.
 
 
 
3. The injury is a cause of some degree of temporary
 
total and industrial disability to the body as a whole.
 
 
 
4. Claimant was married at the time of the injury.
 
 
 
issues
 
 
 
The parties submitted the following issues for determi
 
 
 
 
 
Page 2
 
 
 
 
 
 
 
 
 
nation in this proceeding:
 
 
 
I. The extent of claimant's entitlement to disabil
 
ity benefits;
 
 
 
II. The extent of claimant's entitlement to medical
 
benefits;
 
 
 
III. Claimant's rate of compensation; and,
 
 
 
IV. The extent of claimant's entitlement, if any, to
 
penalty benefits for an unreasonable denial or delay in
 
payment of benefits.
 
 
 
findings of fact
 
 
 
Having heard the testimony and considered all the
 
evidence, the deputy industrial commissioner finds as
 
follows:
 
 
 
A credibility finding is necessary to this decision as
 
defendants placed claimant's credibility at issue during
 
cross-examination as to the nature and extent of the
 
disability; his entitlement to medical expenses; and, to the
 
number of exemptions with reference to rate of compensation.
 
From his demeanor while testifying, claimant is found
 
credible.
 
 
 
Claimant worked for Prairie from July 1985 until
 
October 1988, at which time claimant left work upon the
 
advice of his treating orthopedic surgeon as a result of
 
back and leg pain caused by the injury herein. Claimant has
 
not been employed in any capacity since that time. Claimant
 
was a carpenter foreman for Prairie. However, he was a
 
working foreman and required to perform manual labor along
 
with his subordinates. Occasionally, he would serve as a
 
project manager in charge of all the crews at a construction
 
site.
 
 
 
Much of the work assigned to claimant and his fellow
 
employees was very physically demanding involving the assem
 
bly and placement of concrete forms and the pouring of con
 
crete. Almost all of the work at Prairie involved the con
 
struction or remodeling of pipeline pumping stations.
 
Claimant earned $13 per hour at the time of the injury and
 
usually worked from 40 to 60 hours a week. With overtime
 
pay, claimant was averaging over $880 a week in wages at the
 
time of the injury. Claimant's work was year round and he
 
would be assigned to work at the Prairie headquarters during
 
the off season. Claimant earned approximately $43,000 annu
 
ally before the injury.
 
 
 
On or about August 19, 1987, claimant injured his low
 
back when he fell while carrying a very heavy concrete form
 
with another employee. When he fell, the form landed on his
 
left side and his body struck the ground with his right
 
side. Claimant initially sought chiropractic treatment for
 
low back and left hip pain along with leg pain. After a few
 
weeks claimant failed to improve and was referred by the
 
chiropractor in October 1987 to an orthopedic surgeon,
 
 
 
 
 
Page 3
 
 
 
 
 
 
 
 
 
William Pontarelli, M.D. After several weeks of conserva
 
tive care by Dr. Pontarelli consisting of bed rest, medica
 
tion and home exercises, claimant failed to improve and he
 
underwent an epidural injection in December of 1987.
 
According to claimant, this injection reduced the severity
 
of the pain and alleviated much of the leg pain but he still
 
continued to have relatively constant low back pain. Given
 
continued pain and evidence of a herniated disc as the
 
result of a CT scan, Dr. Pontarelli recommended back surgery
 
to claimant in February 1988. After an explanation of the
 
odds of a successful surgery, claimant rejected surgery. A
 
few weeks later, Dr. Pontarelli changed his opinion and no
 
longer recommended surgery because claimant appeared to be
 
improving with less leg pain. The doctor indicated in his
 
reports that the contemplated surgery would only improve the
 
leg pain and not the low back pain. Also, according to Dr.
 
Pontarellia, later enhanced CT scan failed to sufficiently
 
confirm a ruptured herniated disc that could be surgically
 
repaired. In December 1988, Dr. Pontarelli stated to
 
claimant that there was little else he could offer him to
 
alleviate his pain and he rated claimant as suffering from a
 
five percent permanent partial impairment to the body as a
 
whole. He also, at that time, imposed a five pound lifting
 
restriction of claimant's physical activities.
 
 
 
In May 1988, Dr. Pontarelli recommended that claimant
 
receive further treatment at the University of Iowa
 
Hospitals and Clinics Spinal Diagnostic and Treatment Center
 
and specifically its Pain Clinic. Claimant was evaluated in
 
June 1988, by this clinic and it was found at that time that
 
claimant could benefit from their treatment. However,
 
defendants did not authorize such treatment at that time and
 
in lieu thereof had their vocational rehabilitation consul
 
tant, Max Verling, seek from Dr. Pontarelli authorization
 
for a different back program in Moline, Illinois. Dr.
 
Pontarelli rejected this request and again recommended that
 
claimant receive further treatment at the University of Iowa
 
Pain Clinic. Finally, approximately one year later,
 
claimant was given authority by defendants to attend the
 
University of Iowa Pain Clinic and he did so between July
 
10, 1989 and July 21, 1989.
 
 
 
At this pain clinic, claimant received extensive physi
 
cal therapy, instruction on home exercises and counseling
 
and instruction on coping with pain. According to physi
 
cians and therapists at the clinic, claimant suffered a 10
 
percent permanent partial impairment to the body as a whole
 
as a result of the work injury in this case. As an addi
 
tional result of this injury, claimant has been restricted
 
by clinic staff to lifting no more than 35 pounds only four
 
times per hour and only 18 pounds on a repetitive bases.
 
Also, the clinic staff felt that claimant had high potential
 
for rehabilitation and they agreed with claimant's retrain
 
ing plans consisting of course work at a local community
 
college in an effort to obtain a degree in civil engineer
 
ing. The staff of the clinic felt that claimant was honest
 
and motivated in returning to a productive lifestyle.
 
 
 
In his report of August 1, 1989, University of Iowa
 
Pain Clinic director was very critical of the defendant
 
 
 
 
 
Page 4
 
 
 
 
 
 
 
 
 
insurer's failure to authorize attendance at the pain clinic
 
prior to July of 1989 and felt that as a result of this
 
delay, claimant had not reached maximum healing until com
 
pletion of their program on July 21, 1989. Based upon these
 
views, it is found that claimant did not reach maximum heal
 
ing from the injury until July 21, 1989. It should also be
 
noted that the rehabilitation consultant retained by defen
 
dants stated in his report of January 1989, that he did not
 
believe claimant was "job ready" during this period of time
 
due to extreme pain.
 
 
 
In their report of August 1989, the staff of the
 
University of Iowa Pain Clinic recommended that claimant
 
continue home exercises to maintain and increase his
 
strength and physical functioning. They also suggested that
 
claimant seek counseling for Vietnam stress syndrome which
 
they felt may be adversely affecting claimant's ability to
 
cope with the pain. Claimant had served a tour of duty in
 
Vietnam in the early 1970's.
 
 
 
Claimant has been evaluated on three occasions since
 
July 1989 by the Pain Clinic. Initially, claimant's
 
strength was maintained. However, the last two evaluations
 
in February 1990 and August 1991, found that claimant's
 
strength and functioning had decreased from the gains accom
 
plished at the clinic in July 1989. Also, claimant had not
 
sought counseling for stress syndrome. Claimant explained
 
at hearing that he had done what he could with reference to
 
the exercises but that the pain was becoming an increasing
 
problem. He offered no explanation why he had not sought
 
counseling from the Veterans Administration for his Vietnam
 
stress problems. Claimant stated that he felt that his
 
major problem was the injury and the resulting pain from
 
that injury, not any problems from his Vietman war experi
 
ences.
 
 
 
Consistent with the recommendations of the clinic to
 
move ahead with his life despite his disability, claimant
 
has sought assistance from the State of Iowa Vocational
 
Rehabilitation Division and since January 1990, has been
 
attending classes at a local community college earning cred
 
its toward a degree in civil engineering. Claimant had
 
attended college for one year before his Vietnam tour in the
 
late 1960's. Claimant attempted a full load of case work in
 
the fall and spring of 1990/1991 but had to drop out of
 
school during the second semester due to severe back and
 
neck pain. Claimant is back at school at the present time
 
but only on a part-time basis. He states that he cannot
 
physically handle a full load as a result of problems with
 
concentration due to pain and an inability to sit for pro
 
longed periods of time. Claimant estimated that due to his
 
inability to attend school on a full time basis, the receipt
 
of his degree will be delayed from four to six years.
 
 
 
Although low back pain remains claimant's chief com
 
plaint, he has been increasingly bothered by neck and arm
 
pain along with headaches in recent months. Claimant has
 
been treated recently by Dr. Pontarelli and his associate
 
Richard Berge, M.D., for these problems. This treatment
 
included several weeks of physical therapy at the Hawkeye
 
 
 
 
 
Page 5
 
 
 
 
 
 
 
 
 
Rehabilitation Clinic.
 
 
 
Defendants dispute the causal connection of these neck
 
and arm problems to the work injury. Admittedly, Dr.
 
Pontarelli's initial office notes prior to May 1991, do not
 
mention any complaint of neck or arm pain. However, in his
 
May 1, 1991 report (Exhibit 42), Dr. Pontarelli notes that
 
he could not remember the exact date when claimant began to
 
"decompensate" with neck and left arm pain. Obviously, such
 
complaints were not new to Dr. Pontarelli. Also, at the
 
request of defendants, claimant was evaluated in March 1988,
 
by J. R. Lee, M.D. Although he agreed with Dr. Pontarelli's
 
diagnoses of low back disc problems and conservative
 
therapy, Dr. Lee noted at that time that claimant had
 
complaints of neck and left arm pain and numbness with
 
headaches.
 
 
 
Therefore, it is found that claimant's neck and arm
 
pain and his chronic headaches are causally connected to the
 
work injury. However, it does not appear that any physician
 
has opined that claimant suffers from permanent partial
 
impairment or work restrictions as a result of these prob
 
lems. As indicated by Dr. Pontarelli, these complaints stem
 
from his compensation for the disabilities caused by the low
 
back injury. However, the pain is continuing and requiring
 
treatment along with claimant's low back and leg pain.
 
 
 
As a result of the injury of August 19, 1987, claimant
 
has a 10 percent permanent partial impairment to the body as
 
a whole. Also, as a result of the injury, claimant is per
 
manently restricted from activity consisting of no repeti
 
tive lifting over 18 pounds and no lifting more than four
 
times per hour over 35 pounds. These findings are based
 
upon the assessment of claimant's condition by the
 
University of Iowa Pain Clinic which is the most recent
 
evaluation of claimant's abilities. Claimant failed to show
 
by the greater weight of the evidence that he physically is
 
unable to perform sedentary work over a normal 40 hour work
 
week. Claimant stated that he must rest two to three hours
 
a day on his back and cannot concentrate due to back pain.
 
He states that he cannot sit to attend classes more than a
 
couple hours a day. However, such a dismal assessment of
 
claimant's abilities is not shared by Dr. Pontarelli or the
 
physicians at the University of Iowa Pain Clinic. If such
 
is true, it is largely due to claimant's failure to keep up
 
with his exercises and coping techniques taught to him at
 
the University of Iowa Pain Clinic in July 1989. Also,
 
claimant is having difficulty coping with his pain in part
 
due to his failure to seek counseling for Vietnam stress
 
syndrome. This is a concern not only of his physicians but
 
a concern expressed by members of the family according to
 
claimant's mother at the time of hearing. It was very
 
apparent to the undersigned from claimant's testimony at
 
hearing that the Vietnam war and the loss of a friend in
 
this war has left significant emotional scars. It is found
 
that counseling and treatment is necessary to adequately
 
treat the pain caused by the work injury. Consequently, any
 
such future counseling and treatment would be causally
 
related to the work injury and should be furnished by defen
 
dants if the Veterans Administration is unable or unwilling
 
 
 
 
 
Page 6
 
 
 
 
 
 
 
 
 
to provide such counseling or treatment.
 
 
 
As a result of the work injury of August 19, 1987,
 
claimant has suffered a 60 percent loss of earning capacity.
 
Given the views of the University of Iowa Pain Clinic and
 
those of Max Verling, the rehabilitation consultant,
 
claimant failed to show a prima facie case that he is wholly
 
unemployable or that his talents and skills are so limited
 
in quality and quantity that a market for them does not
 
exist. Verling testified that claimant has transferable
 
supervisory, coordinating and estimating skills from his
 
former management position from Prairie. Verling's testi
 
mony was convincing. Less convincing was Verling's critical
 
views of claimant's goal of achieving an engineering degree.
 
Such a goal is concurred in by the State Vocational
 
Rehabilitation counselors and the University of Iowa Pain
 
Clinic. Verling has identified a few jobs which claimant
 
could perform within his current activity restrictions, some
 
of which are located at Prairie.
 
 
 
However, despite a finding that claimant is employable,
 
claimant's loss of earning capacity is extremely severe.
 
Any placement now would have to be selective given his pain.
 
Claimant is not able to perform construction work involving
 
manual labor. Claimant's only work experience has been in
 
construction work involving manual labor. Moving to a
 
wholly total management or an administrative position in
 
construction would be difficult for claimant. Although
 
claimant has sufficient vocational rehabilitation potential
 
given his past college course work, he has not completed
 
this training. Basing an award in this decision upon an
 
assumption that he will in fact complete his education and
 
obtain an engineering job would be highly speculative and
 
improper. Claimant is 42 years of age. He should be in the
 
most productive era of his working life. His disability is
 
more severe than would the case for a younger or an older
 
individual. Claimant's earnings were in excess of $45,000
 
annually at the time of injury. The jobs identified by
 
Verling pay from $24,000 to $31,000 annually.
 
 
 
With reference to claimant's gross rate of compensa
 
tion, it is found that claimant worked a total of 639.5
 
hours in the 13 week period prior to the injury. Although
 
three of these weeks did not contain a full 40 hour work
 
week, it is found that having less than 40 hours of work in
 
a week on occasion was customary for claimant in his job.
 
It was also customary for claimant to work in excess of 40
 
hours a week on a regular basis and this fact is reflected
 
in this 13 week period prior to the injury. It is found
 
that all of the weeks during the 13 week period prior to the
 
injury are representative. Claimant was not sick or on
 
vacation during any of these periods of time. Claimant's
 
regular hourly rate was $13.00 an hour. Claimant received a
 
subsistence allowance of $30 per day and mileage expenses
 
when he was working at sites not within normal or reasonable
 
commuting distance from his home. It is found that the sub
 
sistence payment and mileage expense payment were not earn
 
ings but reimbursement for expenses as they were paid only
 
when claimant was incurring travel expenses. These payments
 
were reasonably related to the actual cost incurred by
 
 
 
 
 
Page 7
 
 
 
 
 
 
 
 
 
claimant.
 
 
 
With reference to claimant's entitlement to exemptions,
 
at the time of the injury, claimant was under a court
 
ordered obligation to pay for the support of four minor
 
children from a previous marriage. It is further found that
 
claimant was not current in his child support obligations
 
and this was admitted by claimant at hearing. Furthermore,
 
it is found that claimant may have been supporting two chil
 
dren living with him during his second marriage at the time
 
of injury but these children were not his own. He was under
 
no obligation to support any of these children and he has
 
not done so since separating from his second wife.
 
 
 
The reasonableness of the medical expenses set forth in
 
exhibits 34 and 35 is in dispute. Based upon claimant's
 
testimony that these expenses were incurred by him upon the
 
direction of a licensed physician in this state and in the
 
absence of contrary evidence, it is found that the expenses
 
listed in exhibits 34 and 35 are necessary and related to
 
the work injury found herein.
 
 
 
With reference to the reasonableness of the charges,
 
claimant testified that he paid the prescription medications
 
set forth in exhibit 35 and he further testified that the
 
charges for the medical services set forth in exhibit 34 are
 
reasonable. Claimant paid the YMCA membership, the parking
 
fees and travel expenses listed in exhibit 34. The balance
 
of the charges in exhibit 34 are apparently unpaid to date.
 
As will be explained in the conclusions of law portion of
 
this decision, claimant's testimony as to reasonableness of
 
the charges cannot be considered evidence by the
 
undersigned. However, evidence of payment is evidence of
 
reasonableness of the charges. Therefore, based upon
 
claimant's testimony that he paid the expense listed in
 
exhibit 35 and the parking and travel expenses, it is found
 
that such charges are reasonable because there's no contrary
 
evidence.
 
 
 
With reference to the issue of penalty benefits,
 
claimant was paid 54 4/7 weeks of permanent partial disabil
 
ity benefits prior to hearing beginning on November 4, 1988.
 
 
 
conclusions of law
 
 
 
I. Claimant must establish by a preponderance of the
 
evidence the extent of weekly benefits for permanent dis
 
ability to which claimant is entitled. As the claimant has
 
shown that the work injury was a cause of a permanent physi
 
cal impairment or limitation upon activity involving the
 
body as a whole, the degree of permanent disability must be
 
measured pursuant to Iowa Code section 85.34(2)(u).
 
However, unlike scheduled member disabilities, the degree of
 
disability under this provision is not measured solely by
 
the extent of a functional impairment or loss of use of a
 
body member. A disability to the body as a whole or an
 
"industrial disability" is a loss of earning capacity
 
resulting from the work injury. Diederich v. Tri-City
 
Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A
 
physical impairment or restriction on work activity may or
 
 
 
 
 
Page 8
 
 
 
 
 
 
 
 
 
may not result in such a loss of earning capacity. The
 
extent to which a work injury and a resulting medical condi
 
tion has resulted in an industrial disability is determined
 
from examination of several factors. These factors include
 
the employee's medical condition prior to the injury, imme
 
diately after the injury and presently; the situs of the
 
injury, its severity and the length of healing period; the
 
work experience of the employee prior to the injury, after
 
the injury and potential for rehabilitation; the employee's
 
qualifications intellectually, emotionally and physically;
 
earnings prior and subsequent to the injury; age; education;
 
motivation; functional impairment as a result of the injury;
 
and inability because of the injury to engage in employment
 
for which the employee is fitted. Loss of earnings caused
 
by a job transfer for reasons related to the injury is also
 
relevant. Olson v. Goodyear Service Stores, 255 Iowa 1112,
 
1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck
 
Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
 
 
This agency has decided that an assessment of future
 
success of retraining is improper in an industrial disabil
 
ity case. Such an assessment is too speculative. It is
 
only claimant's present not future earning capacity which is
 
to be measured in awarding permanent disability benefits.
 
Stewart v. Crouse Cartage Company, Appeal Decision filed
 
February 20, 1987; Umphress v. Armstrong Rubber Co., Appeal
 
Decision filed August 27, 1987. Therefore, claimant's pre
 
sent industrial disability will be fully compensated.
 
Certainly, if claimant's educational efforts are eventually
 
successful, this agency is available upon proper petition by
 
defendants to review this award at a later date.
 
 
 
Claimant argues for application of the odd-lot doc
 
trine. This doctrine is a procedure device designed to
 
shift the burden of proof with respect to employability to
 
the employer in certain factual situations. Klein v. Furnas
 
Elec. Co., 384 N.W.2d 370, 375 (Iowa 1986). A worker
 
becomes an odd-lot employee when an injury makes the worker
 
incapable of obtaining employment in any well known branch
 
of the labor market. Guyton v. Irving Jensen Co., 373
 
N.W.2d 101, 105 (Iowa 1985). This doctrine is applicable,
 
however, only when a worker makes a prima facie case of
 
total disability by producing substantial evidence that the
 
worker is not employable in the competitive labor market.
 
If such a showing is made, burden to produce evidence shifts
 
to the employer on the issue of availability of employment.
 
 
 
In the case sub judice, claimant failed to show a prima
 
facie case that he is unemployable in the labor market.
 
Therefore, the odd-lot doctrine is not applicable to this
 
case. However, it was found that claimant suffers from a 60
 
percent loss of earning capacity as a result of the work
 
injury. Based upon such a finding, claimant is entitled as
 
a matter of law to 300 weeks of permanent partial disability
 
benefits under Iowa Code section 85.34(2)(u) which is 60
 
percent of 500 weeks, the maximum allowable for an injury to
 
the body as a whole in that subjection.
 
 
 
As claimant has established entitlement to permanent
 
partial disability, claimant is entitled to weekly benefits
 
 
 
 
 
Page 9
 
 
 
 
 
 
 
 
 
for healing period under Iowa Code section 85.34 from the
 
date of injury until claimant returned to work; until
 
claimant is medically capable of returning to substantial
 
similar work to the work he was performing at the time of
 
the injury; or, until it is indicated that significant
 
improvement from the injury is no longer anticipated,
 
whichever occurs first. It was found that claimant did not
 
reach maximum healing after leaving work until completion of
 
the Pain Clinic on July 21, 1989. It was stipulated that
 
claimant was off work from October 24, 1988 until that time.
 
Healing period benefits will be awarded accordingly.
 
 
 
II. It has been held that there must be evidence of
 
the reasonableness of a medical expense to support finding
 
that the expenses are reasonable. Although claimant's tes
 
timony may be evidence of the necessity of the charges,
 
absent a showing of expertise, testimony from a lay witness
 
such as claimant that the charges are reasonable is not evi
 
dence of reasonableness of the charges. See Anderson v.
 
High Rise Construction Specialists, Inc., Appeal Decision
 
July 31, 1990, File No. 850996. The Anderson case is a
 
binding precedent upon the undersigned deputy commissioner.
 
Agency expertise apparently cannot be utilized to make such
 
a finding. However, Iowa courts have held that the fact of
 
payment alone is evidence of reasonableness and sufficient
 
to carry the question of reasonableness to the finder of
 
fact. Lawson v. Forcyce, 237 Iowa 28, 50, 51, 21 N.W.2d 69
 
(Iowa 1945). Therefore, in the absence of contrary evi
 
dence, it was found that these requested expenses paid by
 
claimant are reasonable. Consequently, these expenses will
 
be awarded herein. However, the expenses which remain
 
unpaid cannot be awarded due to a lack of evidence of their
 
reasonableness.
 
 
 
Furthermore, defendants assert a right to control the
 
medical expenses and allege that many of the claimed
 
expenses were not authorized by them. However, they have
 
denied liability for the condition being treated according
 
to paragraph 8, subparagraph C of the prehearing report.
 
Therefore, claimant had no right to choose the care.
 
Kindhart v. Fort Des Moines Hotel, I Iowa Industrial
 
Commissioner Decisions 3, 611 (Appeal Decision 1985);
 
Barnhart v. MAQ Incorporated, I Iowa Industrial
 
Commissioner Report 16 (Appeal Decision 1981).
 
 
 
III. It was found that claimant earned $13 per hour
 
for regular non-overtime work at the time of injury and
 
worked a total of 639.5 hours over 13 weeks prior to the
 
injury. It was found that the hours of work were represen
 
tative of claimant's earnings. Using the straight rate for
 
all hours as required by rule 343 IAC 8.2, claimant's gross
 
weekly earnings averaged $639.50 per week. With reference
 
to claimant's exemptions, the case cited by claimant in his
 
brief, Biggs v. Donner, II Iowa Industrial Commissioner
 
Reports 34 (Appeal Decision 1982) is still a binding agency
 
precedent upon the undersigned. According to that appeal
 
decision, although claimant is not current on child support
 
payments, his natural children for which he is legally obli
 
gated to support are qualified exemptions for the claimant.
 
On the other hand, step-children living with claimant at the
 
 
 
 
 
Page 10
 
 
 
 
 
 
 
 
 
time of hearing are not qualified exemptions. Claimant's
 
wife was living with him and was dependent upon him at the
 
time of injury. Therefore, claimant is entitled to six
 
exemptions. Given claimant's marital status and six exemp
 
tions, claimant's rate of compensation according to the com
 
missioner's rate booklet for injury in August 1987 is
 
$404.28. Finally, the rate did not take into account the
 
subsistence allowance and mileage expenses. Reimbursement
 
for expenses are not earnings to be included in gross weekly
 
earnings. Iowa Code section 85.61(12).
 
 
 
IV. Finally, claimant seeks additional weekly bene
 
fits as a penalty. The unnumbered paragraph of Iowa Code
 
section 86.13 states that if a delay in commencement or ter
 
mination of benefits occurs without reasonable or probable
 
cause or excuse, the industrial commissioner shall award
 
extra weekly benefits in an amount not to exceed 50 percent
 
of the amount of benefits that were unreasonably delayed or
 
denied. Defendants may deny or delay the benefits only when
 
the claim is fairly debatable. Seydel v. U of I Physical
 
Plant, Appeal Decision November 1, 1989. When the claim is
 
"fairly debatable" the insurer is entitled to debate it,
 
whether the debate concerns a matter of fact or law.
 
 
 
In this case, the occurrence of a work injury and its
 
causal connection to both temporary total and permanent dis
 
ability was not fairly debatable and was not disputed. The
 
causal connection of claimant's neck and arm problems and
 
the extent of healing period benefits were fairly debatable
 
issues. However, the existence of a significant industrial
 
disability was not fairly debatable as a result of the low
 
back pain and leg problems. Prior to the hearing, claimant
 
was only paid 54 4/7 weeks of permanent partial disability
 
benefits from November 3, 1988 through November 20, 1989.
 
This is approximately equivalent to the 10 percent impair
 
ment rating issued by the University of Iowa Pain Clinic.
 
However, claimant never returned to work and was not capable
 
of ever returning to the job he performed at the time of
 
injury. It is apparent that claimant was paid these bene
 
fits based only on the impairment rating. To limit payment
 
to an impairment rating in a clear industrial disability
 
case where claimant has suffered a loss of his job and the
 
ability to return to his job or to a similar job is not
 
fairly debatable and unreasonable. Impairment is only one
 
factor among many factors of industrial disability and loss
 
of earning capacity according to the cases cited above. To
 
pay only an impairment rating under these set of circum
 
stances and facts as a matter of law is unreasonable. More
 
importantly, there is nothing offered in the record by
 
defendants to show their rationale for limiting payments to
 
only the 10 percent of 500 weeks. Therefore, additional
 
weekly benefits of 50 weeks will be assessed against the
 
defendants for this unreasonable conduct.
 
 
 
order
 
 
 
1. Defendants shall pay to claimant three hundred
 
(300) weeks of permanent partial disability benefits at the
 
rate of four hundred four and 28/l00 dollars ($404.28) per
 
week from July 21, 1989.
 
 
 
 
 
Page 11
 
 
 
 
 
 
 
 
 
 
 
2. Defendants shall pay healing period benefits from
 
October 24, 1988 through July 20, 1989, at the rate of four
 
hundred four and 28/l00 dollars ($404.28) per week.
 
 
 
3. Defendants shall reimburse claimant for all of the
 
medical expenses listed in exhibit 35 and only the YMCA mem
 
bership, medical parking and travel expenses listed in
 
exhibit 34.
 
 
 
4. Defendants shall pay fifty (50) weeks of penalty
 
benefits from November 21, 1989 at the same rate as other
 
weekly benefits awarded herein.
 
 
 
5. Defendants shall pay accrued weekly benefits in a
 
lump sum and shall receive credit against this award for
 
benefits previously paid.
 
 
 
6. Defendants shall pay interest on weekly benefits
 
awarded herein as set forth in Iowa Code section 85.30.
 
 
 
7. Defendants shall pay the costs of this action pur
 
suant to rule 343 IAC 4.33, including reimbursement to
 
claimant for any filing fee paid in this matter.
 
 
 
8. Defendants shall file activity reports on the pay
 
ment of this award as requested by this agency pursuant to
 
rule 343 IAC 3.l.
 
 
 
 
 
 
 
Signed and filed this ____ day of October, 1991.
 
 
 
 
 
 
 
 
 
 
 
______________________________
 
LARRY P. WALSHIRE
 
DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. James Spellman
 
Attorney at Law
 
1119 High
 
Des Moines IA 50308
 
 
 
Ms. Dorothy L. Kelley
 
Attorney at Law
 
500 Liberty Bldg
 
Des Moines IA 50309
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
1803; 2500; 3000;
 
4000.2; 4100
 
Filed October 25, 1991
 
LARRY P. WALSHIRE
 
 
 
before the iowa industrial commissioner
 
____________________________________________________________
 
:
 
BERNARD SCHNEIDER, :
 
:
 
Claimant, :
 
:
 
vs. :
 
: File No. 869747
 
PRAIRIE CONTRACTORS, INC., :
 
: A R B I T R A T I O N
 
Employer, :
 
: D E C I S I O N
 
and :
 
:
 
HOME INSURANCE COMPANY, :
 
:
 
Insurance Carrier, :
 
Defendants. :
 
___________________________________________________________
 
 
 
 
 
 
 
1803
 
Sixty percent industrial disability awarded to unemployed
 
carpenter foreman who is currently attempting retraining to
 
be a civil engineering. Held: Any assumption at this point
 
in time that he will complete his retraining and be
 
successful in a job search would be speculative and
 
improper.
 
 
 
 
 
2500
 
Applying agency precedent, claimant's testimony that the
 
charges for medical services were reasonable was not
 
considered as evidence of reasonableness. Therefore, absent
 
evidence of reasonableness, the claim for unpaid medical
 
expenses were denied. However, applying prior Iowa law that
 
evidence of payment is sufficient evidence to submit the
 
question of reasonableness to the finder of fact, those
 
bills paid by claimant were found reasonable and awarded to
 
claimant.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
3000
 
Citing a 1982 agency precedent, although claimant was not
 
current in his child support payments, claimant is able to
 
claim expenses for all natural children for which he has a
 
support obligation. This same precedent also denies
 
exemptions for step-children living with the claimant at the
 
time of injury when there is no legal obligation to support
 
these children.
 
 
 
 
 
4000.2
 
Penalty benefits. An additional 50 weeks of compensation
 
awarded as a penalty. Claimant had not been reemployed
 
since leaving work due to the injury. It was held that
 
limiting payment of permanent partial disability benefits to
 
a 10 percent impairment rating is by law unreasonable when
 
claimant's liability for a significant industrial disability
 
is clear and undisputed.
 
 
 
 
 
4100
 
Application of the odd-lot doctrine was refused as claimant
 
failed to show a prima facie case for unemployability.
 
 
 
 
 
 
Page 1
 
 
 
 
 
 
 
 
 
 
 
before the iowa industrial commissioner
 
____________________________________________________________
 
:
 
BERNARD SCHNEIDER, :
 
:
 
Claimant, :
 
: File No. 869747
 
vs. :
 
: M O D I F I C A T I O N
 
PRAIRIE CONTRACTORS, INC., :
 
: O F
 
Employer, :
 
: D E C I S I O N
 
and :
 
:
 
HOME INSURANCE COMPANY, :
 
:
 
Insurance Carrier, :
 
Defendants. :
 
___________________________________________________________
 
 
 
 
 
Claimant moves to amend the findings of fact and
 
conclusions of law contained in the arbitration decision
 
filed October 25, 1991, with reference to healing period and
 
exemptions. With reference to healing period, claimant
 
states that the prehearing report is incorrect as to times
 
off work. However, this report is not incorrect. Paragraph
 
four of the report stipulated that claimant is seeking heal
 
ing period benefits from October 24, 1988. Paragraph 10 of
 
the report stipulated that claimant had already been paid
 
healing period benefits from October 24, 1987 through
 
October 23, 1988, prior to the hearing. Obviously, claimant
 
was not seeking double payment of these benefits before
 
October 24, 1988.
 
 
 
However, in retrospect, the decision could be misinter
 
preted to mean that the award of benefits from October 24,
 
1988 through July 20, 1989, was a holding as to the entire
 
healing period. Therefore, the following sentence is added
 
to the conclusions of law section:
 
 
 
Claimant's entitlement to healing period benefits
 
extends from October 24, 1987 through July 20,
 
1989. Claimant has been paid these benefits
 
through October 23, 1988. The Order portion of
 
this decision will award the balance of the
 
remaining entitlement to healing period benefits.
 
 
 
With reference to exemptions, claimant seeks a finding
 
that he supported the two minor step children at the time of
 
injury. Such a finding was made in the decision. As
 
explained in the conclusions of law section, such finding
 
still did not entitle claimant to claim these exemptions for
 
reasons explained in the conclusions of law portion of the
 
decision.
 
 
 
 
 
Page 2
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Signed and filed this ____ day of November, 1991.
 
 
 
 
 
 
 
 
 
 
 
______________________________
 
LARRY P. WALSHIRE
 
DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. James Spellman
 
Attorney at Law
 
1119 High
 
Des Moines IA 50308
 
 
 
Ms. Dorothy L. Kelley
 
Attorney at Law
 
500 Liberty Bldg
 
Des Moines IA 50309
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
 
 
RONDA WEESE,
 
 
 
Claimant,
 
 
 
vs.
 
File No. 869869
 
BUNN-O-MATIC CORPORATION,
 
A P P E A L
 
Employer,
 
D E C I S I O N
 
and
 
 
 
INSURANCE COMPANY OF NORTH
 
AMERICA (Sued as CIGNA),
 
 
 
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
 
September 27, 1993 is affirmed and is adopted as the final
 
agency action in this case.
 
That claimant and defendants shall share equally the costs of the
 
appeal including transcription of the hearing. shall pay all
 
other costs.
 
Signed and filed this ____ day of February, 1994.
 
 
 
 
 
 
 
 
 
________________________________
 
BYRON K. ORTON
 
INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Curtis J. Krull
 
Attorney at Law
 
317 Sixth Ave., Ste 500
 
Des Moines, Iowa 50309
 
 
 
Mr. Jeffrey A. Baker
 
Attorney at Law
 
729 Insurance Exchange Bldg.
 
Des Moines, Iowa 50309
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
1802; 1402.30; 1108.50; 2209; 2503
 
Filed February 28, 1994
 
Byron K. Orton
 
 
 
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
RONDA WEESE,
 
 
 
Claimant,
 
 
 
vs.
 
File No. 869869
 
BUNN-O-MATIC CORPORATION,
 
A P P E A L
 
Employer,
 
D E C I S I O N
 
and
 
 
 
INSURANCE COMPANY OF NORTH
 
AMERICA (Sued as CIGNA),
 
 
 
Insurance Carrier,
 
Defendants.
 
____________________________________________________________
 
 
 
 
 
2503
 
Where claimant sought additional care without contacting the
 
employer or its insurance carrier, the authorization defense
 
succeeded.
 
 
 
1802; 1402.30; 1108.50; 2209
 
The assessment of the case made by the treating physician
 
from Mayo Clinic was accepted over an assessment made by Dr.
 
Neff from reviewing records. The specialist at Mayo Clinic
 
was found to be a higher level of expertise and to have more
 
knowledge concerning the case as a result of his being a
 
treating physician. Further, the history relied upon by Dr.
 
Neff was found to be insufficient because it assumed a
 
complete recovery following the claimant's first surgery
 
when in fact the record showed a continuation of symptoms
 
whenever any type of moderate activity was attempted by the
 
claimant. Claimant awarded additional healing period
 
benefits.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
:
 
RONDA WEESE, :
 
:
 
Claimant, :
 
:
 
vs. :
 
: File No. 869869
 
BUNN-O-MATIC CORPORATION, :
 
: A R B I T R A T I O N
 
Employer, :
 
: D E C I S I O N
 
and :
 
:
 
INSURANCE CO OF NORTH :
 
AMERICA (sued as CIGNA), :
 
:
 
Insurance Carrier, :
 
Defendants. :
 
___________________________________________________________
 
STATEMENT OF THE CASE
 
 
 
This is a proceeding in arbitration brought by Ronda
 
Weese against her former employer, Bunn-O-Matic, based upon
 
an injury of September 29, 1987. Claimant seeks to recover
 
additional compensation for healing period and payment of
 
medical expenses. She acknowledges receipt of all healing
 
period compensation which was payable prior to June 17,
 
1988. No claim is made for additional permanent partial
 
disability compensation.
 
 
 
The record in the case contains testimony from Ronda
 
Weese. The record also contains jointly offered exhibits 1
 
through 6, including exhibit 2 to the deposition of Peter C.
 
Amadio, M.D., which deposition is in the record as exhibit
 
6.
 
 
 
FINDINGS OF FACT
 
 
 
Ronda Weese was employed by Bunn-O-Matic from March
 
1987 through January 1988. She developed pain in her right
 
wrist including the back of her hand and forearm and was
 
seen by Larry W. Goetz, M.D., the employer-selected
 
physician, at the Creston Medical Clinic on October 26,
 
1987. The initial notes indicate that she uses an air tool
 
approximately six out of eight hours per work day and that
 
the rest of the time is spent performing a twisting motion
 
with pliers. His notes state:
 
 
 
Her grip on the right is less than the left and
 
she has pain even with doing the Tinel's testing
 
of the right wrist and pain at the distal portion
 
of the mid flexor retinaculum. She has no
 
tenderness at the elbow at this time. Does get
 
pain in her wrist and forearm with supination and
 
pronation.
 
 
 
 
 
Page 2
 
 
 
 
 
 
 
 
 
 
 
(exhibit 5B, page 20)
 
 
 
Dr. Goetz diagnosed claimant as having tenosynovitis,
 
carpal tunnel syndrome, and advised her that she had a
 
"classic situation." Claimant was placed into physical
 
therapy and given prescription medication and a splint.
 
(exhibit 5b, page 20, 21).
 
 
 
Claimant was seen again by Dr. Goetz on November 6,
 
1987, at which time she reported that therapy had increased
 
the pain. At the request of "Shirley in management at
 
Bunn-o-matic [sic]" claimant was scheduled for EMG testing.
 
She was also advised to see a surgeon and given stronger
 
pain medication (ex. 5B, p. 21). An EMG was conducted on
 
November 13, 1987, and was interpreted as being normal (ex.
 
5H, p. 121; ex. 5K, p. 132).
 
 
 
Claimant was seen by Surgeon Robert M. Kuhl, M.D. She
 
underwent right carpal tunnel decompression surgery on
 
December 3, 1987. The prepatient surgical history and
 
physical notes that the Tinel's at the right wrist crease
 
produced pain but very little radiation. The Phalen's test
 
produced pain in the wrist area but no numbness (ex. 5F, p.
 
113). Agency expertise is relied upon to note that the
 
Tinel's and Phalen's tests typically produce tingling or
 
numbness in the thumb, first and middle fingers if the
 
median nerve is compressed at the wrist area, the condition
 
which constitutes carpal tunnel syndrome. In persons with
 
carpal tunnel syndrome, EMG tests are usually not
 
interpreted as being normal. It is noted that none of the
 
presurgical records in evidence in this case make reference
 
to the presence of numbness and tingling in the thumb, first
 
and middle fingers of claimant's right hand. The only
 
comment that is consistent with the existence of carpal
 
tunnel syndrome is that the hand falls asleep at night. The
 
statement that it involves all of her fingers is, again,
 
inconsistent with carpal tunnel syndrome since the condition
 
does not involve the ring and little finger because their
 
nerve function is supplied by the ulnar nerve. It is also
 
noted that in the pre-outpatient surgical history and
 
physical, the wrist x-ray is stated to be essentially normal
 
(ex. 5F, p. 114). Interestingly, the operative record
 
prepared by Dr. Kuhl makes reference to "...totally
 
decompressing the median nerve." It also contains the
 
statement, "It was felt that the ulnar nerve area had been
 
freed up adequately." (ex. 5F, p. 115). There are ample
 
indications that the original diagnosis was not completely
 
correct.
 
 
 
Eleven days after surgery claimant was again seen by
 
Dr. Kuhl and was placed into physical therapy. The report
 
from the physical therapist notes the existence of clicking
 
in the wrist with pronation and supination and attributes it
 
to soft tissue swelling. Agency expertise is relied upon to
 
comment that such clicking is unusual following carpal
 
tunnel release surgery. The first visit for therapy was on
 
December 16, 1987. She was given written exercises. In
 
 
 
 
 
Page 3
 
 
 
 
 
 
 
 
 
early December claimant's incision opened as a result of her
 
shoveling snow. No physician has indicated that the
 
incident is responsible for any of her continuing problems.
 
Notes subsequent to that incident a complete lack of
 
symptoms. The second visit was on January 6, 1988, at
 
which time is was noted that she was doing very well. She
 
was then encouraged to use her hand actively in her
 
activities of daily living. Claimant expressed a strong
 
desire to return to the job she had been performing (ex. 5H,
 
p. 124). When claimant was seen by Dr. Kuhl on December 18,
 
1987, the notes indicate that she was having no pain at all
 
in the hand. He released her to return to work effective
 
January 12, 1988, "...with no specific restrictions." (ex.
 
5B, p. 123). A note from Dr. Kuhl dated January 21, 1988,
 
notes that Ronda had started back to work and did well until
 
being placed on an air gun at which time she again
 
experienced significant pain in the wrist area, just above
 
the wrist crease. She exhibited no Tinel's sign and no
 
Phalen's sign (ex. 5B, p. 123). Claimant was again seen by
 
Dr. Kuhl on February 19, 1988, at which time she continued
 
to have pain in her right wrist and the back of her hand.
 
She expressed concern because she felt that she was not
 
improved since the surgery (ex. 5B, p. 124). Claimant was
 
seen by the physical therapist on January 20 and February
 
27, 1988, at which times she complained of wrist pain. The
 
physical therapist notes that she was not experiencing
 
numbness or tingling in her hand and that pain was present
 
along the lateral aspect of the wrist joint and into the
 
fourth and fifth fingers. She complained of pain in the
 
right elbow when she had her arm up overhead as when curling
 
her hair (ex. 5H, p. 125). It should be noted that during
 
this time, claimant was attempting to return to work and was
 
not being successful at achieving a return to work due to
 
her pain. Dr. Kuhl eventually referred claimant to
 
Orthopedic Surgeon Arnis Grundberg on March 31, 1988. Dr.
 
Kuhl's referral letter indicates that she has no hand
 
numbness or nerve entrapment symptomatology, simply an area
 
of pain and discomfort just above the wrist crease in the
 
mid-aspect of the right distal forearm. He notes the
 
possibility of a ganglion or a neuroma though he found no
 
indication of such in his examination (ex. 5B, p. 32).
 
 
 
Dr. Grundberg's report appears in the record at exhibit
 
5C, pages 34-46. His note of April 15, 1988, indicates that
 
she has had no numbness and tingling like she did before the
 
operation. It is not known whether he assumed that she had
 
numbness and tingling before the operation or whether she
 
expressly told him that she had numbness and tingling before
 
the operation. No such symptoms are noted in the
 
pre-surgical records. The note shows that the Tinel's sign
 
was negative and that the Phalen's test caused pain at the
 
wrist but no numbness or tingling. These are the same
 
results as are shown in the records from before the surgery
 
was performed. X-rays of the right wrist were interpreted
 
as being normal. Dr. Grundberg found that claimant had no
 
 
 
 
 
Page 4
 
 
 
 
 
 
 
 
 
tenderness over the ulnar nerve at the elbow though she had
 
some discomfort at the elbow. The Tinel's sign at the elbow
 
was negative. Dr. Grundberg provided an impairment rating
 
of 10 percent of the right hand due to residuals from carpal
 
tunnel syndrome (ex. 5C, pp. 35-36). In a note of May 6,
 
1988, Dr. Grundberg indicated that claimant could return to
 
work at Bunn-O-Matic if they have work for her that does not
 
involve the use of an air gun, an air screwdriver, pliers
 
and does not involve repetitive work. Claimant was unable
 
to resume work because no conforming work was available.
 
 
 
Claimant's employment at Bunn-O-Matic was terminated
 
due to her inability to perform the physical functions
 
required of that employment. Claimant did, shortly
 
thereafter, obtain employment in Sernett Department Store.
 
She worked principally in the fabric department. Her job
 
duties included using scissors to cut fabric for customers.
 
The fact that she was able to perform that work for
 
approximately nine months is strong evidence that the work
 
placed much less stress and trauma on her hand than had the
 
work at Bunn-O-Matic which she was not able to resume. The
 
amount of time operating scissors would be relatively small
 
since work in a fabric department includes taking the bolt
 
of fabric from a rack, laying it on a cutting table,
 
measuring the appropriate amount, cutting it off, returning
 
the bolt to the storage rack, and then going to the cash
 
register with the customer to collect payment for the
 
fabric. The activity of operating the scissors would likely
 
produce symptoms in a person who had a defect or injury in
 
their hand. It would not be likely to produce damage to the
 
hand, however, in view of the limited exertion involved and
 
the limited amount of time scissors would actually be used
 
in a typical work day. When compared to eight hours of
 
running air tools or pliers at Bunn-O-Matic, the amount of
 
stress and strain from the Sernett store is insignificant.
 
 
 
On February 16, 1989, claimant sought care from Douglas
 
S. Reagan, M.D., an orthopedic surgeon in Des Moines, Iowa,
 
who like Dr. Grundberg has a subspecialty in hand and arm
 
surgery. A substantial error appears in the first paragraph
 
of his February 16, 1989 note, but that error is corrected
 
in a note dated March 24, 1989. His initial notes list
 
tenderness at the medial site of her right elbow and that
 
the fourth and fifth fingers of her right hand go to sleep
 
when she is sleeping. Dr. Reagan found a positive Tinel's
 
test at the right wrist in the ulnar (fourth and fifth)
 
fingers. He found her to have a positive Tinel's, positive
 
Phalen's and negative Allen's tests at the wrist. Her
 
Tinel's at the elbow was positive. He diagnosed her as
 
having probable residual carpal tunnel syndrome, ulnar
 
tunnel syndrome and cubital tunnel syndrome.
 
 
 
EMG tests were again conducted on February 28, 1988,
 
and were again interpreted as normal (ex. 5H, p. 122).
 
Conservative care did not resolve claimant's complaints.
 
The note of April 10, 1989, indicates that her Tinel's sign
 
is tender but that she does not have a true Tinel's. This
 
 
 
 
 
Page 5
 
 
 
 
 
 
 
 
 
is construed to mean that the tests showed pain but did not
 
show radiation, tingling or numbness (ex. 5C, pp. 37-38).
 
EMG's were then repeated which showed compression of the
 
ulnar nerve at her elbows, bilaterally (ex. 5H, p. 123). An
 
arthrogram showed a tear of the triangular fibrocartilage in
 
her wrist. This is the cartilage which is at the distal end
 
of the ulna. On June 14, 1989, Dr. Reagan performed surgery
 
consisting of arthroscopy of the wrist with debridement of
 
the torn triangular fibrocartilage, repeat carpal tunnel
 
release, excision of an interconnecting muscle between the
 
thumb flexor and the profundus of the index finger, ulnar
 
tunnel release and cubital tunnel release (ulnar nerve at
 
the elbow) (ex. 5C, pp. 40, 43, 44). By November 2, 1989,
 
Ronda's complaints were much improved though she still had
 
tenderness over the distal end of the ulna. It is in that
 
office note that the increased length of the ulna is first
 
noted. Further medication or aggressive treatment was
 
deferred due to claimant being pregnant. In a note of
 
January 18, 1990, Dr. Reagan notes pain at the
 
pisotriquetral joint and tenderness at the interspace
 
between the fourth and fifth and third and fourth
 
metacarpals (ex. 5C, p. 41). When seen again on June 4,
 
1990, the pain was at the fourth and fifth CMC joints. The
 
ulnar nerve was tender and was noted to sublux. The
 
pisiform was also tender and she had tenderness over the
 
flexor tendon.
 
 
 
Claimant was seen on July 30, 1990, at the University
 
of Iowa Hospitals and Clinics. The assessment made was that
 
she had ulnar side wrist and hand pain of unknown etiology
 
(origin). They also found no evidence of ulnar abutment
 
syndrome. They agreed with Dr. Reagan that the case was a
 
diagnostic dilemma (ex. 5I, p. 127).
 
 
 
In August 1990, claimant began seeking care at the Mayo
 
Clinic through a referral from Dr. Reagan to Peter C.
 
Amadio, M.D. Dr. Reagan had released claimant to return to
 
restricted work effective August 16, 1990 (ex. 5C, p. 42).
 
She had left Sernett effective March 24, 1989, after having
 
been advised to leave that work by Dr. Reagan (ex. 5C, p.
 
38).
 
 
 
On October 29, 1990, claimant began active treatment at
 
the Mayo Clinic. Dr. Amadio was her principle treating
 
physician. Her first visit at Mayo Clinic was October 19,
 
1990. An MMPI was performed which showed her to be mildly
 
depressed and pessimistic and found her number of physical
 
symptoms and concern about bodily functions to be fairly
 
typical for a medical patient. There was no indication of
 
symptom exaggeration (ex. 5D, p. 50). EMG tests were normal
 
(ex. 5D, pp. 51-52). Dr. Amadio diagnosed claimant as
 
having right ulnocarpal abuttment syndrome and persistent
 
right ulnar neuropathy. On October 30, 1990, right wrist
 
arthrotomy surgery was performed, shortening the right ulna.
 
Transposition of the right ulnar nerve at the elbow was also
 
performed (ex. 5D, pp. 61, 69, 70). The surgery was
 
successful and Dr. Amadio felt that she had recovered from
 
 
 
 
 
Page 6
 
 
 
 
 
 
 
 
 
that surgery on March 1, 1991 (ex. 5D, p. 73; ex. 6, pp.
 
45-47).
 
 
 
After achieving considerable success from Dr. Amadio's
 
first surgery, claimant reported an additional persisting
 
problem which was in the region of the pisiform bone. Dr.
 
Amadio diagnosed right pisotriquetral arthritis (ex. 5D, p.
 
65). When next seen on April 4, 1991, claimant also voiced
 
complaints in the region of the fourth and fifth metacarpal.
 
This was also presented as a symptom which had been present,
 
but which had not been treated due to her more troublesome
 
wrist pain. After diagnostic testing Dr. Amadio diagnosed
 
instability of the fifth carpometacarpal joint. On May 9,
 
1991, Dr. Amadio performed additional surgery consisting of
 
excision of the pisiform bone and fusion of the right fourth
 
and fifth carpometacarpals (ex. 5D, pp. 76, 90, 91). For
 
this second surgery claimant entered into care on May 8,
 
1991, and completed recuperation on November 15, 1991 (ex.
 
5D, pp. 90-94; ex. 6, pp. 45-47).
 
 
 
A solid union was not obtained with the fifth
 
carpometacarpal arthrodesis. On July 28, 1992, a repeat of
 
that surgery was performed (ex. 6, deposition ex. 2). On
 
this attempt a solid fusion was obtained. According to Dr.
 
Amadio recuperation from that surgery was completed on
 
November 9, 1992 (ex. 6, pp. 45-47).
 
 
 
By the date of hearing claimant had resumed employment
 
working at a nursing home. She still has some difficulty
 
with her right hand, but it is much improved over the
 
situation that existed following the surgery which was
 
performed by Dr. Kuhl.
 
 
 
Based upon the history he has received, Dr. Amadio has
 
indicated repeatedly that he feels that all of the
 
conditions which he treated were causally connected with the
 
original work and repetitive work activity that claimant
 
performed at Bunn-O-Matic (ex. 5D, p. 89; dep. ex. 2 to ex.
 
7 at note dated 4-7-93 and ex. 6, pp. 4, 11, 14, 21-25, 38,
 
41, 42). As indicated by Dr.. Amadio the absence of a
 
symptom being noted in medical records does not establish
 
that the symptom was not present (ex. 6, pp. 18, 41, 44). A
 
negative EMG does not necessarily establish that nerve
 
entrapment does not exist (ex. 6, pp. 19-28). Dr. Amadio
 
explained that ulnocarpal abuttment syndrome is a
 
predisposing condition that places a person at risk but that
 
trauma is required to produce a tear of the cartilage (ex.
 
6, pp. 29-30). Dr. Amadio explained that once the cartilage
 
is torn it is inevitable that the tear will widen and that
 
arthritis will develop. He stated that once a condition
 
begins, often times it slowly worsens (ex. 6, p. 31). Dr.
 
Amadio explained that arthritis of the pisiform bone is
 
typically a result of repetitive work (ex. 6, pp. 34-35).
 
Dr. Amadio notes that some of claimant's symptoms may have
 
been missed during the time from 1987 through 1991 because
 
they were overshadowed by other symptoms (ex. 6, pp. 42-43).
 
Dr. Amadio explained that production work in a factory is
 
much more strenuous and traumatic than typical work in a
 
 
 
 
 
Page 7
 
 
 
 
 
 
 
 
 
department store or functions such as shucking corn or
 
snapping beans from a garden and that it was highly unlikely
 
that the department store or gardening activities produced
 
the conditions which he treated (ex. 6, pp. 41-42).
 
 
 
Claimant's records were evaluated by Scott Neff, D.O.,
 
a physician to whom defendants commonly refer claimants if
 
the defendants wish to obtain a relatively low impairment
 
rating or an opinion that causal connection does not exist.
 
In this case Dr. Neff expressed the opinion that the
 
conditions treated by Dr. Amadio were not caused by the
 
employment because those symptoms developed after claimant
 
separated from her employment with Bunn-O-Matic. He
 
concludes that a tear in the triangular fibrocartilage was
 
apparently not evident during Dr. Kuhl's evaluation (ex. 5A.
 
p. 17). Since an arthrogram was not performed by Kuhl it is
 
not known how Dr. Neff reached that conclusion.
 
 
 
In this case it is determined that Dr. Amadio's
 
assessment is correct. He is a specialist at the highly
 
regard Mayo Clinic. His explanation that the greater
 
symptoms masked the lesser symptoms as far as the pisiform
 
bone and carpometacarpal instability are concerned is
 
certainly reasonable. It is corroborated by claimant's own
 
testimony. It is very evident from the record in this case
 
that the surgery performed by Dr. Kuhl in 1987 did not solve
 
the problem that this claimant was having in 1987. The
 
records do not show the classic carpal tunnel complaints of
 
numbness and tingling in the thumb, first and middle fingers
 
in those initial entries which were made prior to the time
 
of the surgery. While this claimant may very well have had
 
carpal tunnel syndrome, the greater probability is that she
 
also had the torn ulnar cartilage, a part of the diagnosis
 
which was probably missed by Dr. Kuhl. The existence of
 
such a tear provides a very plausible explanation for why
 
she continued to have pain after surgery when nerve
 
constriction symptoms were absent. It provides a very
 
plausible explanation for why the initial carpal tunnel
 
surgery was not successful. It provides a very plausible
 
explanation for why the claimant was not able to tolerate
 
resumption of work at Bunn-O-Matic. Dr. Amadio quite
 
accurately stated that claimant's history consisted of
 
recurrence or persistent symptomatology. His impression was
 
that every time she tried to increase her activity or do
 
anything that her hand bothered her. He concluded that this
 
did not show an increase in symptoms. It merely showed the
 
existence of a problem (ex. 6, pp. 20, 21, 38, 43).
 
 
 
Dr. Amadio compared what has happened in this case to
 
the act of pushing a bowling ball off the top step of a
 
flight of stairs and the ball then rolling with increasing
 
speed to the bottom. Agency expertise is relied upon to
 
note that individuals with carpal tunnel syndrome often
 
develop cubital tunnel syndrome as well and that the cubital
 
tunnel syndrome complaints are often not diagnosed until
 
after carpal tunnel surgery has been unsuccessful at
 
resolving the complaints. In some cases thoracic outlet
 
 
 
 
 
Page 8
 
 
 
 
 
 
 
 
 
syndrome follows. While a comparison to a bowling ball
 
rolling down stairs may not necessarily be 100 percent
 
accurate, the condition is, nevertheless, one in which one
 
event commonly precipitates another. The undersigned would
 
compare it to using a pool cue to strike a cue ball, which
 
in turn strikes another ball which in turn strikes another.
 
The whole sequence of events starts with the pool cue
 
striking the cue ball and it is that action which causes
 
other balls to be struck and moved.
 
 
 
As far as professional status is concerned, it should
 
be noted that Dr. Neff is an orthopedic surgeon. Dr. Reagan
 
is an orthopedic surgeon with a subspecialty in hand and
 
upper extremity surgery. Dr. Reagan's level of professional
 
expertise for this case is therefore higher than that of Dr.
 
Neff. Dr. Reagan in turn referred claimant on to Dr. Amadio
 
at the Mayo Clinic. Accordingly, Dr. Amadio's expertise is
 
considered to be the highest of those three orthopedic
 
surgeons. Dr. Kuhl's is considered by the undersigned to be
 
the lowest of all four surgeons who have a significant role
 
in this case. Further, Dr. Amadio is a principle treating
 
physician. This also is a very significant factor which is
 
relied upon when assessing the positions and opinions of the
 
various physicians in this case.
 
 
 
As previously indicated, the assessment made by Dr.
 
Amadio is accepted as being correct. The history he relies
 
upon is one of continuing and resurfacing symptoms. That
 
history is found to be correct. It is noted that during
 
periods of inactivity claimant's symptoms subsided. She was
 
understandably relatively inactive immediately following
 
each of her surgeries. Dr. Neff's assessment that she
 
recovered following Dr. Kuhl's surgery is not correct. She
 
certainly did not recover because she was unable to resume
 
her employment. As soon as she attempted to resume the
 
routine activities of her employment at Bunn-O-Matic her
 
symptoms returned.
 
 
 
The record in this case fails to show that this
 
claimant requested to see Dr. Reagan or Dr. Amadio or in any
 
other manner made any indication to the employer or its
 
insurance carrier that she was seeking additional medical
 
care. Claimant did not give her employer or its insurance
 
carrier a reasonable opportunity to exercise their right to
 
direct medical care.
 
 
 
CONCLUSIONS OF LAW
 
 
 
In this case the claimant seeks to recover additional
 
healing period compensation as well as payment of medical
 
expenses. The bulk of the medical expenses have apparently
 
been paid by a group carrier which provides coverage to her
 
through her husband's employment.
 
 
 
Iowa Code section 85.27 gives employers in the state of
 
Iowa the right to choose the care which an injured employee
 
is to receive. It is generally held that the employee
 
should ordinarily not incur medical expense without first
 
giving the employer a reasonable opportunity to furnish such
 
services. If the employee fails to do so the employee will
 
 
 
 
 
Page 9
 
 
 
 
 
 
 
 
 
be liable for the expenses which are incurred without the
 
consent of the employer. 2 Larson Workmen's Compensation
 
Law, 61.12(a)(e); Richards v. Department of General
 
Services, Vol 1 No. 3 State of Iowa Industrial
 
Commissioner Decisions 684 (App. Dec. 1985). In this case
 
claimant's medical bills were not introduced into evidence
 
because the claimant was unable to show that they had
 
previously been submitted to the defendants prior to
 
hearing. The failure to do so violated normal rules of
 
discovery and the hearing assignment order. Absent a
 
showing that the defendants had previously been served or
 
provided with the bills for which recovery was sought, they
 
cannot be held to prepare to defend against those bills.
 
Accordingly, the claimant was not allowed to offer the bills
 
into evidence. Further, in order to recover where the
 
employee chooses the doctor, it is necessary for the
 
employee to show that the employer was given notice that
 
further care was desired and the employee must also show
 
that the employer failed to provide reasonable care when
 
requested. Evidence of that nature is also lacking in this
 
case. It is therefore determined that defendants are not
 
required to pay any of the medical expenses incurred by
 
claimant with Dr. Reagan, Dr. Amadio, the Mayo Clinic, or
 
any other providers of services who became involved as part
 
of the course of treatment provided by Doctors Reagan or
 
Amadio.
 
 
 
Claimant also seeks healing period compensation for the
 
period of time running from June 17, 1988 through November
 
9, 1992. In order to recover she must prove not only that
 
she was disabled, but also that the original work injury at
 
Bunn-O-Matic was a proximate cause of the disability.
 
 
 
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).
 
 
 
In this case it has been found that Dr. Amadio's
 
 
 
 
 
Page 10
 
 
 
 
 
 
 
 
 
assessment is correct. It is therefore determined that the
 
September 29, 1987 cumulative injury is a proximate cause of
 
all the conditions which Doctors Reagan and Amadio treated
 
and of all periods of disability associated with those
 
conditions and the surgeries that were performed to remedy
 
those conditions. It is noted that September 29, 1987, may
 
not be a technically correct date of injury to be used in
 
this case but it is clear that the right hand condition,
 
which is the subject of this case, is the injury being dealt
 
with.
 
 
 
Claimant seeks additional healing period compensation.
 
Section 85.34(1) provides that healing period benefits are
 
payable to an injured worker who has suffered permanent
 
partial disability until (1) the worker has returned to
 
work; (2) the worker is medically capable of returning to
 
substantially similar employment; or (3) the worker has
 
achieved maximum medical recovery. The healing period can
 
be considered the period during which there is a reasonable
 
expectation of improvement of the disabling condition. See
 
Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa
 
Ct. App. 1981). Healing period benefits can be interrupted
 
or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa
 
1986).
 
 
 
In this case it is determined that Ronda Weese is
 
entitled to recover additional healing period on four
 
separate occasions, all of which total 132 6/7 weeks.
 
Healing period benefits are not payable when a person is
 
physically capable of working or is not in a status of
 
recuperation. Claimant is not entitled to recover healing
 
period when she was working at Sernett. Her first of these
 
four additional healing periods commences March 24, 1989,
 
when she was under Dr. Reagan's care and it runs through
 
August 16, 1990, when Dr. Reagan released her to return to
 
work. This is a span of 73 weeks.
 
 
 
The second of the additional healing periods commences
 
on October 30, 1990 with the first surgery performed by Dr.
 
Amadio. It ends on March 1, 1991, as indicated by Dr.
 
Amadio in his deposition. This is a span of 17 4/7 weeks.
 
 
 
The third commences on May 9, 1991, with the second
 
surgery performed by Dr. Amadio. It runs through November
 
15, 1991, a span of 27 2/7 weeks.
 
 
 
The fourth and final session of healing period
 
entitlement commences with the July 28, 1992 surgery
 
performed by Dr. Amadio and terminates on November 9, 1992,
 
as indicated by Dr. Amadio.
 
 
 
ORDER
 
 
 
IT IS THEREFORE ORDERED that defendants pay Ronda Weese
 
one hundred thirty-two and six-sevenths (132 6/7) weeks of
 
compensation for healing period payable at the rate of one
 
hundred thirty-three and 14/100 dollars ($133.14) per week
 
with seventy-three (73) weeks thereof payable commencing
 
March 24, 1989; with seventeen and four-sevenths (17 4/7)
 
weeks thereof payable commencing October 30, 1990; with
 
 
 
 
 
Page 11
 
 
 
 
 
 
 
 
 
twenty-seven and two-sevenths (27 2/7) weeks thereof payable
 
commencing May 9, 1991 and with fifteen (15) weeks thereof
 
payable commencing July 28, 1992. The entire amount is past
 
due and owing and shall be paid to the claimant in a lump
 
sum together with interest computed pursuant to section
 
85.30 from the date each weekly payment came due until the
 
date it is actually paid.
 
 
 
It is further ordered that the costs of this action are
 
assessed against defendants pursuant to rule 343 IAC 4.33.
 
 
 
It is further ordered that defendants file claim
 
activity reports as requested by this agency.
 
 
 
Signed and filed this ____ day of September, 1993.
 
 
 
 
 
 
 
 
 
______________________________
 
MICHAEL G. TRIER
 
DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies to:
 
 
 
Mr. Curtis J. Krull
 
Attorney at Law
 
318 6th Ave STE 500
 
Des Moines, Iowa 50309
 
 
 
Mr. Jeffrey Baker
 
Attorney at Law
 
729 Insurance Exchange Bldg
 
Des Moines, Iowa 50309
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
1802 1402.30 1108.50 2209 2503
 
Filed September 27, 1993
 
Michael G. Trier
 
 
 
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
 
 
RONDA WEESE,
 
 
 
Claimant,
 
 
 
vs.
 
File No. 869869
 
BUNN-O-MATIC CORPORATION,
 
A R B I T R A T I O N
 
Employer,
 
D E C I S I O N
 
and
 
 
 
INSURANCE CO OF NORTH
 
AMERICA (sued as CIGNA),
 
 
 
Insurance Carrier,
 
Defendants.
 
___________________________________________________________
 
 
 
2503
 
Where claimant sought additional care without contacting the
 
employer or its insurance carrier, the authorization defense
 
succeeded.
 
 
 
1802 1402.30 1108.50 2209
 
The assessment of the case made by the treating physician
 
from Mayo Clinic was accepted over an assessment made by Dr.
 
Neff from reviewing records. The specialist at Mayo Clinic
 
was found to be a higher level of expertise and to have more
 
knowledge concerning the case as a result of his being a
 
treating physician. Further, the history relied upon by Dr.
 
Neff was found to be insufficient because it assumed a
 
complete recovery following the claimant's first surgery
 
when in fact the record showed a continuation of symptoms
 
whenever any type of moderate activity was attempted by the
 
claimant. Claimant awarded additional healing period
 
benefits.
 
 
 
 
 
 
Page 1
 
 
 
 
 
 
 
 
 
 
 
before the iowa industrial commissioner
 
____________________________________________________________
 
:
 
BILL ROUSTIO, :
 
:
 
Claimant, :
 
: File No. 869879
 
vs. :
 
:
 
IOWA METHODIST MEDICAL : A R B I T R A T I O N
 
CENTER, :
 
: D E C I S I O N
 
Employer, :
 
:
 
and :
 
:
 
AETNA CASUALTY & SURETY, :
 
COMPANY, :
 
:
 
Insurance Carrier, :
 
Defendants. :
 
___________________________________________________________
 
 
 
STATEMENT OF THE CASE
 
 
 
This is a proceeding in arbitration brought by William
 
Roustio, claimant, against Iowa Methodist Medical Center,
 
employer, and Aetna Casualty & Surety Company, insurance
 
company, to recover benefits under the Iowa Workers'
 
Compensation Act as a result of an injury sustained on
 
November 12, 1987. This matter came on for hearing before
 
the undersigned deputy industrial commissioner on February
 
13, 1990. The record was considered fully submitted at the
 
close of the hearing. The record in this case consists of
 
the testimony of claimant, Sarah Roustio, Mary K.
 
Hoogerwerf, Kathryn Bennett, Lynn Crank, and Eugene Veler,
 
and Joint Exhibits 1 through 15, inclusive.
 
 
 
issues
 
 
 
Pursuant to the prehearing report and order submitted
 
and approved February 13, 1990, the following issues are
 
presented for resolution.
 
 
 
1. Whether the injury of November 12, 1987 is the
 
cause of the permanent disability on which claimant now
 
bases his claim;
 
 
 
2. The extent of claimant's entitlement, if any, to
 
permanent partial disability benefits;
 
 
 
3. The applicability of the odd-lot doctrine; and
 
 
 
4. Claimant's entitlement to certain medical benefits
 
provided by Iowa Code section 85.27.
 
 
 
Although credit under Iowa Code section 85.38(2) had
 
been in dispute at the time of the hearing, the parties have
 
since advised the undersigned that:
 
 
 
 
 
Page 2
 
 
 
 
 
 
 
 
 
 
 
The Pre-Hearing Report is correct in listing a
 
credit of $7,692.88. We are agreeing by this
 
letter that payment of this amount is stipulated
 
and the entitlement to a credit for this amount is
 
also stipulated.
 
 
 
This issue, therefore, will not be addressed herein.
 
 
 
findings of fact
 
 
 
The undersigned deputy industrial commissioner, having
 
heard the testimony and considered all the evidence, finds
 
that:
 
 
 
On November 12, 1987, claimant sustained an injury
 
which arose out of and in the course of his employment when,
 
while emptying an extractor into a sink, he "felt like
 
somebody kicked [him] in the small of [his] back."
 
Claimant, after reporting to the emergency room, remained
 
off work for three or four days, then returned to work but
 
left again as he could not do his job at that time.
 
 
 
Claimant came under the care of Charles Denhart, M.D.,
 
who prescribed physical therapy and instructed claimant to
 
remain active but off work. By December 7, 1987, claimant
 
was reporting that he was feeling better until he had to fix
 
a flat tire on December 6 which, according to claimant,
 
"aggravated [the injury] but did not cause any more injury."
 
On December 21, 1987, Dr. Denhart reported that claimant was
 
continuing to slowly improve and although he complained of a
 
"toothache like pain" in his mid low back, the pain did not
 
radiate into either lower extremity. Claimant was advised
 
to start a "slow work hardening program" in order to be
 
ready to return to work.
 
 
 
Claimant was arrested at the emergency room at Iowa
 
Methodist Medical Center on January 2, 1988 after, in his
 
own words, losing control of his pain and making an ass out
 
of himself by insisting on more pain medication. When
 
refused treatment at Iowa Methodist after his arrest,
 
claimant's wife convinced him to see Lester Beachy, M.D.,
 
who saw him at and admitted him to Mercy Hospital Medical
 
Center with a principle diagnosis of acute low back pain due
 
to lumbosacral strain and a secondary diagnosis of acute
 
psychotic episode. Claimant was discharged on January 5,
 
1988 with instructions to return to the low back clinic at
 
Iowa Methodist Medical Clinic.
 
 
 
Claimant saw Dr. Denhart again on January 11, 1988, at
 
which time a CT scan was ordered and claimant was advised
 
about the efficacy of narcotic medications over a long term.
 
On January 18, 1988, Dr. Denhart reported:
 
 
 
He has gotten a CT scan of the lumbar spine
 
which demonstrated hypertrophic spurring at
 
several levels. There is no evidence of neural
 
compression or entrapment through L3-4. At the
 
L4-5 level there is evidence for compression of
 
the left L4 nerve root. The patient still does
 
 
 
 
 
Page 3
 
 
 
 
 
 
 
 
 
not complain of radiating pain, but rather that
 
the pain is localized in his low back. He
 
continues to have symmetrical deep tendon reflexes
 
in the knee jerks and ankle jerks at 1+, and the
 
medial hamstrings jerks are trace. He complains
 
of no loss of sensation and has no loss of
 
strength in his lower extremities. I therefore am
 
unsure whether he actually has a radiculopathy or
 
not since he has no neurologic findings and no
 
radiation of his pain.
 
 
 
(Joint Exhibit 1, page 14)
 
 
 
Claimant returned to see Dr. Denhart on January 25,
 
1988 because he fell on the ice that morning and had some
 
change in the pain he was experiencing. Claimant felt his
 
pain flared up and then settled back down to where it was.
 
Dr. Denhart did not think claimant had seriously injured
 
himself. Claimant saw Thomas Carlstrom, M.D., on January
 
29, 1988. Dr. Carlstrom opined:
 
 
 
I saw his CT scan which does show some
 
spondylosis but was not particularly unremarkable
 
otherwise.
 
 
 
On examination, he was slightly pudgy and has
 
slightly diminished range of motion of his low
 
back. His neurological exam was normal.
 
 
 
I think this patient was experiencing symptoms
 
of a myofascial low back syndrome. I do not think
 
that further consideration for surgical treatment
 
was warranted and would recommend probably at this
 
point in time either a work-hardening effort or
 
perhaps some type of job rehabilitation to change
 
him to a lighter duty occupation.
 
 
 
 
 
(Jt. Ex. 1, p. 90)
 
 
 
A few days later, Dr. Denhart referred claimant to the
 
chronic pain treatment program but on February 15, 1988,
 
claimant was involved in an automobile accident described by
 
him as a five car pileup. Dr. Denhart reported:
 
 
 
He was driving on the freeway, and a car came over
 
several lanes and hit another car, and he ran into
 
this second car. He reports that he was initially
 
going 50 miles an hour; however, was attempting to
 
brake from the start of the incident, so was going
 
slower when he actually hit the car. The car that
 
he hit was stopped or nearly so at the time that
 
he hit it. He complains of pain in the posterior
 
neck, and also increased
 
pian [sic] in the low back, so that it was
 
approximately as bad as it had been when he first
 
hurt his back. He went to the emergency room, was
 
evaluated there, and no acute injuries were found.
 
 
 
....
 
 
 
 
 
Page 4
 
 
 
 
 
 
 
 
 
 
 
Impression:
 
 
 
I think the pain in the neck area is myofascial
 
in nature. I continue to think that the back pain
 
is mechanical and/or myofascial in nature.
 
 
 
(Jt. Ex. 1, p. 11)
 
 
 
Claimant originally resisted participating in a chronic
 
pain clinic based on what other people had told him about
 
such programs. On March 14, 1988, Dr. Denhart wrote:
 
 
 
It has now been four months since his injury,
 
and he has had essentially no improvement in his
 
pain despite appropriate treatment. Therefore, I
 
believe that he has reached maximum healing at
 
this point. Also, since he does not appear to be
 
improving with his Physical Therapy and indeed
 
reports that it makes him uncomfortable for a
 
time afterwards, I think it would be appropriate
 
to discontinue this, at least for the time being.
 
I plan to follow-up with him in approximately one
 
month. With respect to degree of permanent
 
partial impairment, since he does not have any
 
loss of strength or sensation, I would base this
 
impairment on his loss of range of motion as
 
measured today. This would give a 10 percent
 
permanent partial disability.
 
 
 
(Jt. Ex. 1, p. 9)
 
 
 
Dr. Denhart found claimant to be limited by an
 
inability to lift over 20 pounds and an inability to bend
 
and stoop. Claimant attempted to return to work for
 
defendant employer June 1, 1988, but found he could not do
 
the job. Claimant was released from Dr. Denhart's care on
 
July 11, 1988 to return on a P.R.N. basis.
 
 
 
Claimant was evaluated by Joshua D. Kimelman, D.O., of
 
Orthopedic Associates, on May 31, 1988. Dr. Kimelman's
 
impression was that claimant suffered from chronic lumbar
 
strain without neurologic deficit and chronic pain syndrome.
 
Dr. Kimelman wrote:
 
 
 
Mr. Roustio's case is somewhat complicated by
 
an intervening motor vehicle accident, he reports
 
that he continues to have neck pain which is
 
related to his motor vehicle accident, however,
 
does not feel that subjectively that his back
 
condition has been made materially worse as a
 
result of this motor vehicle accident and review
 
of Dr. Denhart's records, I believe that is this
 
is consistent in the records. I believe there is
 
some degree of permanency in this gentleman who,
 
now 7 months post injury, has not been able to
 
successfully return to work, that the chances of
 
his being able to return to his previous level of
 
occupation are extremely small. I agree with
 
previous recommendations for Vocational
 
 
 
 
 
Page 5
 
 
 
 
 
 
 
 
 
Rehabilitation. I additionally believe that this
 
does represent a chronic pain condition and
 
believe there's significant chance improvement
 
with chronic pain with treatment at a center
 
dealing with chronic pain syndrome.
 
 
 
At this time I believe Mr. Roustio's injury
 
represents between 5% and 10% impairment taking
 
the body as a whole.
 
 
 
(Jt. Ex. 1, p. 86)
 
 
 
When asked for clarification, Dr. Kimelman advised
 
claimant's counsel that claimant's cervical problem was
 
related to a motor vehicle injury and was not considered for
 
the purposes of his job-related back problems. Dr. Kimelman
 
further advised that he believed claimant's back problems
 
were causally related to his job injury.
 
 
 
Claimant began working with Kathryn Bennett, Vocational
 
Consultant, in approximately August of 1988. Ms. Bennett
 
found claimant to be initially skeptical about employment
 
outside his work with defendant employer and felt claimant
 
was in a quandary since he was physically unable to do jobs
 
with defendant but he was still "on the books" as an
 
employee. It was not until after claimant's discharge from
 
employment because his medical restrictions prevented him
 
from working for the employer (see Jt. Ex. 2, p. 219) that
 
she began to help claimant seek other employment. Ms.
 
Bennett found claimant to be very talkative, very nice, a
 
"people person" and opined that claimant can eventually find
 
a job paying from minimum wage to what he was making with
 
defendant employer in that claimant is capable of doing
 
light to sedentary work. Ms. Bennett estimated that
 
claimant, as a result of his injury, lost half or more of
 
his job market prospect. Ms. Bennett's services were
 
terminated by defendant insurance carrier on May 9, 1989.
 
 
 
On July 10, 1989, claimant was admitted to the Iowa
 
Methodist Pain Management Center for the "comprehensive
 
interdisciplinary four week program." Claimant found that
 
the comments he had heard did not prove true and he found
 
the experience to be a positive one. J. Dan Smeltzer, M.A.,
 
 
 
 
 
Page 6
 
 
 
 
 
 
 
 
 
Sociologist, coordinator of the center, summarized
 
claimant's overall program as:
 
 
 
Mr. Roustio was compliant in all ways
 
throughout the program. He demonstrated gross
 
improvement in mood as well as appropriate
 
increases in activity levels. Mr. Roustio did not
 
report significant changes, specifically
 
reductions in pain perception. It would seem
 
given the outcome of treatment that Mr. Roustio
 
pursue vocational rehabilitation as soon as can be
 
arranged. The Pain Management Center staff does
 
not see the need for further formal treatment at
 
this time. The patient will be seen back for
 
routine follow-up in the clinic as well as with
 
Dr. Denhart as arranged.
 
 
 
(Jt. Ex. 1, p. 74)
 
 
 
After completing the program on August 4, 1989,
 
claimant was referred to occupational therapy to identify
 
his physical abilities and limitations. Subjectively, the
 
evaluator found:
 
 
 
I feel patient has a fear of reinjury and a
 
hesitancy when he is dealing with weight and
 
repetition, therefore, he moves slower and
 
cautiously which can increase his pain levels as
 
muscles are more tense. The patient's pain levels
 
were fairly consistent throughout the program
 
being at 4 and 5 on a scale of 5. Patient was at
 
a 3 for less repetitive tasks and tasks that were
 
sitting moreso [sic] than the standing tasks.
 
 
 
(Jt. Ex. 1, page 94)
 
 
 
Among the recommendations and conclusions reached by
 
Vicki Torvik, work hardening consultant who conducted the
 
maximum effort evaluation, were:
 
 
 
I feel for this patient, working with weight of 5
 
or 10 lbs would be a maximum, however, working
 
with minimal weight or under 5 lbs. would be more
 
functional.
 
 
 
I recommend that reaching above his shoulders and
 
below his knees be kept to a minimum. Also, for
 
patient to work at his own pace as he would
 
accomplish more versus having the pressure of
 
meeting a short deadline.
 
 
 
PHYSICAL DEMAND CHARACTERISTICS: I place patient
 
at the Sedentary Work category which is defined as
 
follows: sitting for six hours out of an eight
 
hour day; lifting no more than 10 lbs.
 
occasionally (0-20x); possible frequent (20-100x)
 
lifting of small objects weighing less than 10
 
lbs.
 
 
 
The patient's maximum lifting of 25 lbs. would be
 
 
 
 
 
Page 7
 
 
 
 
 
 
 
 
 
a high expectation for patient to meet. If
 
patient is to transport paper in large quantities,
 
it would be more advantageous for him to do it on
 
a wheeled cart versus physically transporting it
 
himself by walking and carrying the weight. I
 
also recommend he not sit at one time for more
 
than 20-30 minutes but be able to alternate his
 
posture.
 
 
 
(Jt. Ex. 1, p. 95-96)
 
 
 
Claimant's reading skills were documented at the third
 
grade level and math computation was at the 8.8 grade
 
equivalency. Performances on the DAT mechanical reasoning
 
aptitude test were poor while performances on the DAT
 
relations aptitude test were strong. In June of 1989,
 
claimant underwent a neuropsychological evaluation conducted
 
by William R. McMordie, Ph.D., Clinical Neuropsychologist.
 
Dr. McMordie stated his conclusions as:
 
 
 
The current neuropsychological test results are
 
consistent with a history of learning
 
disabilities. There does not appear to be any
 
indication that this gentleman is in the process
 
of declining cognitively. Clinically, he would
 
have probably been identified as an L-type
 
dyslexic as a child. This would mean that his
 
cognitive strengths are more of a visual learner.
 
Relative to his complaints of memory functioning,
 
he is likely to do better using visual aids and
 
written notes in attempting to recall material.
 
It does not appear that this gentleman is
 
attempting to purposefully malinger a memory
 
deficit, however, because of the unusual nature of
 
the findings, the possibility of embellishment of
 
an existing problem might be likely.
 
 
 
(Jt. Ex. 1, p. 82)
 
 
 
Claimant has a high school diploma through a "mail
 
order" class having dropped out of school in the twelfth
 
grade because it was "really hard" and he "could not keep
 
up." Claimant is currently attending classes at the Des
 
Moines Area Community College in "the basics" of spelling
 
and reading. Claimant's wife has assisted him with his
 
reading and spelling while he was employed as a supervisor
 
with defendant employer.
 
 
 
Claimant, at the time of hearing, found his pain
 
"excruciating" at times and at times tolerable and that the
 
use of a TENS unit has helped him deal with his pain.
 
Claimant has been unsuccessful in securing employment and
 
asserted he attempted to get alternate work with defendant
 
employer but no work was available. Eugene Veler, director
 
of environmental services with defendant employer, believes
 
claimant, even in light of his medical restrictions, could
 
fulfil the duties of an area manager, a job which claimant
 
held from 1979 until a voluntary transfer occurred in 1987.
 
No openings for an area manager have existed with the
 
medical clinic.
 
 
 
 
 
Page 8
 
 
 
 
 
 
 
 
 
 
 
reasoning and conclusions of law
 
 
 
An employee is entitled to compensation for any and all
 
personal injuries which arise out of and in the course of
 
the employment. Section 85.3(1).
 
 
 
The parties have agreed that on November 12, 1987
 
claimant sustained an injury which arose out of and in the
 
course of his employment which caused a temporary total
 
disability/healing period from November 12, 1987 through
 
March 18, 1988. What is at first an issue is whether this
 
work injury is the cause of the disability on which claimant
 
now bases his claim.
 
 
 
The claimant has the burden of proving by a
 
preponderance of the evidence that the injury of November
 
12, 1987 is causally related to the disability on which he
 
now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516,
 
133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa
 
296, 18 N.W.2d 607 (1945). A possibility is insufficient; a
 
probability is necessary. Burt v. John Deere Waterloo
 
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
 
question of causal connection is essentially within the
 
domain of expert testimony. Bradshaw v. Iowa Methodist
 
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
 
 
Expert medical evidence must be considered with all
 
other evidence introduced bearing on the causal connection.
 
Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts
 
need not be couched in definite, positive or unequivocal
 
language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa
 
1974). However, the expert opinion may be accepted or
 
rejected, in whole or in part, by the trier of fact. Id. at
 
907. Further, the weight to be given to such an opinion is
 
for the finder of fact, and that may be affected by the
 
completeness of the premise given the expert and other
 
surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d
 
867. See also Musselman v. Central Telephone Co., 261 Iowa
 
352, 154 N.W.2d 128 (1967).
 
 
 
As there is no dispute claimant was injured on November
 
12, 1987, there is likewise no dispute that claimant was
 
injured in an automobile accident in 1982. However, Michael
 
J. Stein, D.O., a neurologist, who primarily treated
 
claimant for this injury, reported on April 21, 1983 that he
 
could find no evidence that claimant needed to be followed
 
medically any longer as claimant was doing well. This
 
problem thus seems to have resolved well before the work
 
injury. There is no evidence in the record to show that
 
claimant ever received any permanent impairment rating or
 
employment restrictions on account of this injury.
 
 
 
Claimant has also had a number of incidents since this
 
work injury including a slip and a fall and an automobile
 
accident. However, Dr. Denhart, to whom all these incidents
 
were reported, appears to consider these no more than
 
flare-ups of claimant's underlying condition caused by the
 
work injury. [See Jt. Ex. 1, p. 11..."I continue to think
 
that the back pain is mechanical..." (emphasis added)] Dr.
 
 
 
 
 
Page 9
 
 
 
 
 
 
 
 
 
Kimelman causally connected claimant's back condition to his
 
work injury and considered the auto accident to have caused
 
a separate cervical condition.
 
 
 
Considering the evidence presented, it is concluded
 
that the greater weight of evidence establishes a causal
 
connection between the work injury of November 12, 1987 and
 
the permanent disability on which claimant now bases his
 
claim.
 
 
 
Attention is thus turned to the extent of claimant's
 
permanent disability and, concomitantly, the question of
 
whether or not claimant is an odd-lot employee under Guyton
 
v. Irving Jensen Co., 373 N.W.2d 102 (Iowa 1985).
 
 
 
Under the odd-lot doctrine, which was formally adopted
 
by the Iowa Supreme Court in Guyton, supra, a worker becomes
 
an odd-lot employee when an injury makes the worker
 
incapable of obtaining employment in any well-known branch
 
of the labor market. An odd-lot worker is thus totally
 
disabled if the only services the worker can perform are so
 
limited in quality, dependability, or quantity that a
 
reasonably stable market for them does not exist. Id.,
 
citing Lee v. Minneapolis Street Railway Company, 230
 
Minn.315, 320, 41 N.W.2d 433, 436 (1950). The rule of odd-
 
lot allocates the burden of production of evidence. If the
 
evidence of degree of obvious physical impairment, coupled
 
with other facts such as claimant's mental capacity,
 
education, training or age, places claimant prima facie in
 
the odd-lot category, the burden should be on the employer
 
to show that some kind of suitable work is regularly and
 
continuously available to the claimant. Certainly in such
 
cases it should not be enough to show that claimant is
 
physically capable of performing light work and then round
 
out the case for noncompensable by adding a presumption that
 
light work is available. Guyton, 373 N.W.2d at 105.
 
 
 
When a worker makes a prima facie case of total
 
disability by producing substantial evidence that the worker
 
is not employable in the competitive labor market, the
 
burden to produce evidence of suitable employment shifts to
 
the employer. If the employer fails to produce such
 
evidence and the trier of fact finds the worker falls in the
 
odd-lot category, the worker is entitled to a finding of
 
total disability. Even under the odd-lot doctrine, the
 
trier of fact is free to determine the weight and
 
credibility of the evidence in determining whether the
 
worker's burden of persuasion has been carried. Only in an
 
exceptional case would evidence be sufficiently strong to
 
compel a finding of total disability as a matter of law.
 
Guyton, 373 N.W.2d at 106. The court went on to state:
 
 
 
The commissioner did not in his analysis
 
address any of the other factors to be considered
 
in determining industrial disability. Industrial
 
disability means reduced earning capacity. Bodily
 
impairment is merely one factor in a gauging
 
industrial disability. Other factors include the
 
worker's age, intelligence, education,
 
qualifications, experience, and the effect of the
 
 
 
 
 
Page 10
 
 
 
 
 
 
 
 
 
injury on the worker's ability to obtain suitable
 
work. See Doerfer Division of CCA v. Nicol, 359
 
N.W.2d 428, 438 (Iowa 1984). When the combination
 
of factors precludes the worker from obtaining
 
regular employment to earn a living, the worker
 
with only a partial functional disability has a
 
total disability. See McSpadden v. Big Ben Coal
 
Co, 288 N.W.2d 181, 192 (Iowa 1980).
 
 
 
In determining whether claimant is an odd-lot employee,
 
it must first be reviewed whether claimant has made a prima
 
facie case of total disability by producing substantial
 
evidence that he is not employable in the competitive labor
 
market. Although the undersigned cannot dispute that
 
claimant has obstacles to employment, it clearly has not
 
been shown that claimant is not employable. Merely because
 
claimant cannot return to work with defendant because of his
 
work restrictions does not mean that claimant is not
 
employable. The evidence presented by claimant on this
 
issue falls far short of that needed to establish a prima
 
facie showing that he is unemployable in the sense
 
contemplated in Guyton, 373 N.W.2d 101. Even if claimant
 
had made a prima facie showing, sufficient evidence has been
 
presented to overcome this. Therefore, claimant's
 
allegation must fail on this question as the evidence does
 
not establish that the only services claimant can perform
 
are so limited in quality, dependability or quantity that a
 
reasonably stable market for them does not exist.
 
 
 
Claimant does, however, have a permanent partial
 
disability.
 
 
 
Dr. Kimelman opined claimant's injury represents a 5 to
 
10 percent permanent partial impairment to the body as a
 
whole. Dr. Denhart rated claimant as 10 percent permanently
 
partially impaired.
 
 
 
Functional impairment is an element to be considered in
 
determining industrial disability which is the reduction of
 
earning capacity, but consideration must also be given to
 
the injured employee's age, education, qualifications, expe
 
rience and inability to engage in employment for which he is
 
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
 
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
 
285, 110 N.W.2d 660 (1961).
 
 
 
A finding of impairment to the body as a whole found by
 
a medical evaluator does not equate to industrial disabil
 
ity. This is so as impairment and disability are not syn
 
onymous. Degree of industrial disability can in fact be
 
much different than the degree of impairment because in the
 
first instance reference is to loss of earning capacity and
 
in the latter to anatomical or functional abnormality or
 
loss. Although loss of function is to be considered and
 
disability can rarely be found without it, it is not so that
 
a degree of industrial disability is proportionally related
 
to a degree of impairment of bodily function.
 
 
 
Factors to be considered in determining industrial dis
 
ability include the employee's medical condition prior to
 
 
 
 
 
Page 11
 
 
 
 
 
 
 
 
 
the injury, immediately after the injury, and presently; the
 
situs of the injury, its severity and the length of healing
 
period; the work experience of the employee prior to the
 
injury, after the injury and potential for rehabilitation;
 
the employee's qualifications intellectually, emotionally
 
and physically; earnings prior and subsequent to the injury;
 
age; education; motivation; functional impairment as a
 
result of the injury; and inability because of the injury to
 
engage in employment for which the employee is fitted. Loss
 
of earnings caused by a job transfer for reasons related to
 
the injury is also relevant. These are matters which the
 
finder of fact considers collectively in arriving at the
 
determination of the degree of industrial disability.
 
 
 
There are no weighting guidelines that indicate how
 
each of the factors are to be considered. There are no
 
guidelines which give, for example, age a weighted value of
 
ten percent of the total value, education a value of fifteen
 
percent of total, motivation - five percent; work experience
 
- thirty percent, etc. Neither does a rating of functional
 
impairment directly correlate to a degree of industrial
 
disability to the body as a whole. In other words, there
 
are no formulae which can be applied and then added up to
 
determine the degree of industrial disability. It therefore
 
becomes necessary for the deputy to draw upon prior
 
experience, general and specialized knowledge to make the
 
finding with regard to degree of industrial disability.
 
See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision,
 
February 28, 1985); Christensen v. Hagen, Inc., (Appeal
 
Decision, March 26, l985).
 
 
 
Claimant's work history consists primarily of heavy
 
labor: stacking bags, welding, loading, servicing mobile
 
homes and housekeeping. However, claimant also has four
 
years of experience with Building Maintenance Services as a
 
working supervisor and was employed with defendant for a
 
number of years as a supervisor before returning to
 
housekeeping responsibilities. Claimant still possesses the
 
transferable skills that he garnered as a supervisor.
 
Claimant's former supervisor at Iowa Methodist Medical
 
Center has opined that claimant, even in light of his
 
employment restrictions, could perform the job of area
 
supervisor. Yet, defendant employer made no effort to make
 
any accommodations to claimant's work-caused medical
 
restrictions. The Iowa Supreme Court has held that a
 
defendant employer's refusal to give any sort of work to a
 
claimant after he suffers his affliction may justify an
 
award of disability. McSpadden v. Big Ben Coal Co., 288
 
N.W.2d 181 (Iowa 1980). It is unfortunate that such a large
 
employer could find no work at all for claimant.
 
 
 
In addition to medical restrictions imposed by his
 
physicians, claimant has documented learning disabilities
 
which complicate not only his ability to secure other work
 
but also to complete some kind of retraining. Claimant has
 
often returned to school to improve his reading and spelling
 
skills and has again returned to Des Moines Area Community
 
 
 
 
 
Page 12
 
 
 
 
 
 
 
 
 
College to get "the basics." Claimant is intellectually and
 
emotionally (based on the rehabilitation progress notes)
 
handicapped in his search for work. However, the greater
 
weight of evidence establishes that claimant is employable.
 
 
 
At 39, claimant is a relatively young man who should
 
have many working years ahead of him. Claimant has not
 
secured any employment since his injury. Yet, claimant
 
appears to have cooperated with all experts who sought to
 
help him. Consequently, his motivation should not be
 
suspect, even if his cooperation was not freely given at the
 
beginning. However, the fact that claimant has not secured
 
even the most sedentary or lightest of work does cause some
 
concern and does cause a question to be raised.
 
 
 
When claimant voluntarily left his supervisory position
 
for family reasons and went to a housekeeping position, he
 
took what he described as a "large" pay cut - from $9.23 per
 
hour to $5.68 per hour or almost 40 percent. If claimant
 
can do nothing more than earn a minimum wage, his actual
 
loss of earnings (not considering his time off work) is
 
significant as a result of his injury. His work
 
restrictions are also significant. For an individual who
 
once was able to weld, stack bags, and perform the other
 
heavy labor that he did as a housekeeper and working
 
supervisor of housekeeping, lifting no more than ten pounds
 
occasionally and less than ten pounds frequently with a
 
maximum lifting of 25 pounds as a high expectation are
 
fairly significant restrictions. There is little indication
 
that claimant was malingering or not putting forth his best
 
effort during the evaluations although claimant may be
 
embellishing them somewhat.
 
 
 
Therefore, considering all of the elements of
 
industrial disability, it is determined that claimant has
 
sustained a permanent partial disability of 50 percent for
 
industrial purposes entitling him to 250 weeks of permanent
 
partial disability benefits.
 
 
 
The final issue for determination is whether claimant
 
is entitled to certain medical expenses under Iowa Code
 
section 85.27. That section of the law provides:
 
 
 
The employer, for all injuries compensable
 
under this chapter or chapter 85A, shall furnish
 
reasonable surgical, medical, dental, osteopathic,
 
chiropractic, podiatric, physical rehabilitation,
 
nursing, ambulance and hospital services and
 
supplies therefor and shall allow reasonably
 
necessary transportation expenses incurred for
 
such services.
 
 
 
Joint Exhibit 3 lists the disputed medical expenses as:
 
 
 
William Roustio
 
 
 
OUTSTANDING MEDICAL EXPENSES
 
 
 
1. Dr. Lester Beachy $ 142.00
 
 
 
 
 
 
 
Page 13
 
 
 
 
 
 
 
 
 
2. Mercy Hospital 1,255.00
 
 
 
3. Dr. Joshua Kimelman 135.00
 
 
 
4. City of DSM Ambulance 75.00
 
 
 
5. Weight Watchers 125.00
 
 
 
6. Exercise bike & treadmill 487.00
 
 
 
$2,219.00
 
 
 
(Jt. Ex. 1, p. 257)
 
 
 
Defendants assert these expenses are either
 
unauthorized (items 1, 2, 3 and 4) or not reasonable and
 
necessary to treat the injury.
 
 
 
Items 1, 2, 3 and 4 arise out of the incident of
 
January 2, 1988 when claimant was refused further treatment
 
at Iowa Methodist Medical Center after his arrest. While
 
the undersigned would not dispute that claimant's conduct at
 
the emergency room on that day may have been inappropriate
 
or that neither Dr. Beachy nor Mercy Hospital Medical Center
 
were authorized to care for claimant, claimant was left
 
without recourse when he could not return to Iowa Methodist
 
for treatment. It is therefore concluded that claimant's
 
actions in contacting Dr. Beachy and reporting to Mercy
 
Hospital under his direction constituted reasonable and
 
necessary treatment and, therefore, defendants are liable
 
for the expenses of items 1, 2 and 3. The same conclusion
 
cannot be reached with regard to the ambulance charge. No
 
evidence exists to support this as necessary and, therefore,
 
no order for payment will be issued for item 4.
 
 
 
Finally, claimant seeks reimbursement for the Weight
 
Watchers program, an exercise bicycle and treadmill. These
 
will be considered unauthorized medical expenses if for no
 
other reason than the fact claimant was advised if he bought
 
the equipment himself defendants would not authorize
 
payment. Claimant was clearly on notice such expenses would
 
be considered unauthorized. Claimant was offered a YMCA or
 
gymnasium membership which he declined. Finally, while it
 
may behoove us all to reduce our bulk, the Weight Watchers
 
program was a voluntary endeavor and no order for payment
 
for it will be issued.
 
 
 
order
 
 
 
THEREFORE, it is ordered:
 
 
 
Defendants shall pay unto claimant two hundred fifty
 
(250) weeks of permanent partial disability benefits at the
 
stipulated rate of one hundred fifty-seven and 13/100
 
dollars ($157.13) per week commencing March 19, 1988.
 
 
 
Defendants shall pay disputed medical expenses of:
 
 
 
1. Dr. Lester Beachy $ 142.00
 
2. Mercy Hospital 1,255.00
 
 
 
 
 
Page 14
 
 
 
 
 
 
 
 
 
3. Dr. Joshua Kimelman 135.00
 
 
 
1,532.00
 
 
 
Expenses that have accrued shall be paid in a lump sum
 
together with statutory interest thereon, pursuant to Iowa
 
Code section 85.30.
 
 
 
Defendants shall receive credit for all permanent
 
partial disability benefits previously paid as well as
 
credit, pursuant to the stipulation in the prehearing report
 
and order.
 
 
 
Costs of this action are assessed against defendants,
 
pursuant to Division of Industrial Services Rule 343-4.33.
 
 
 
 
 
Signed and filed this _____ day of July, 1990.
 
 
 
 
 
 
 
 
 
______________________________
 
DEBORAH A. DUBIK
 
DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies to:
 
 
 
Mr Channing L Dutton
 
Attorney at Law
 
West Towers Office
 
1200 35th St Ste 500
 
West Des Moines IA 50265
 
 
 
Mr Glenn Goodwin
 
Attorney at Law
 
4th Flr Equitable Bldg
 
Des Moines IA 50309
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
5-1800
 
Filed July 30, 1990
 
Deborah A. Dubik
 
 
 
before the iowa industrial commissioner
 
____________________________________________________________
 
:
 
BILL ROUSTIO, :
 
:
 
Claimant, :
 
: File No. 869879
 
vs. :
 
:
 
IOWA METHODIST MEDICAL : A R B I T R A T I O N
 
CENTER, :
 
: D E C I S I O N
 
Employer, :
 
:
 
and :
 
:
 
AETNA CASUALTY & SURETY, :
 
COMPANY, :
 
:
 
Insurance Carrier, :
 
Defendants. :
 
___________________________________________________________
 
 
 
5-1800
 
Claimant awarded 50% permanent partial disability benefits
 
based on work-related back injury.