Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : LARRY G. ELDER, : : Claimant, : : vs. : : File No. 870989 RILEY STOKER CORP., : : A P P E A L Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ STATEMENT OF THE CASE Defendants appeal from an arbitration decision awarding permanent partial disability benefits as the result of an alleged injury on December 10, 1987. The record on appeal consists of the transcript of the arbitration proceeding; defendants' exhibits A through F; and a portion of claimant's exhibit A. Both parties filed briefs on appeal. ISSUES Defendants state the following issues on appeal: I. Whether the deputy erred in finding that Elder sustained his burden of proving he has a thirty per cent [sic] permanent partial disability to ht the stipulated rate of four hundred thirty-seven and 11/100 dollars ($437.11) per week payable commencing December 10, 1987 and totalling twenty-one thousand one hundred six and 29/100 dollars ($21,106.29). That defendants shall pay unto claimant nineteen (19) weeks of permanent partial disability benefits at the stipulated rate of four hundred thirty-seven and 11/100 dollars ($437.11) per week payable commencing November 12, 1988 and totalling eight thousand three hundred five and 09/100 dollars ($8,305.09). That defendants shall have credit for all benefits paid voluntarily prior to hearing. That as all benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. That defendants shall pay all reasonable and necessary charges for further treatment by Dr. Szabados that are causally related to the subject work injury. That defendants shall pay the costs of this matter including the transcription of the hearing. That defendants shall file claim activity reports as required by this agency pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of March, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Joel T. S. Greer Page 3 Attorney at Law P.O. Box 496 Marshalltown, Iowa 50158 Mr. John M. Bickel Attorney at Law P.O. Box 2107 Cedar Rapids, Iowa 52406-2107 9999 Filed March 25, 1992 Byron K. Orton DRR before the iowa industrial commissioner ____________________________________________________________ _____ : LARRY G. ELDER, : : Claimant, : : vs. : : File No. 870989 RILEY STOKER CORP., : : A P P E A L Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 9999 Summary affirmance of deputy's decision filed October 18, 1990, with short additional analysis. Page 1 before the iowa industrial commissioner _________________________________________________________________ : LARRY G. ELDER, : : Claimant, : : File No. 870989 vs. : : O R D E R RILEY STOKER CORP., : : N U N C Employer, : : P R O and : : T U N C CIGNA, : : Insurance Carrier, : Defendants. : _________________________________________________________________ An appeal decision was filed in this case on March 25, 1992. A portion of the decision is in error. The Order portion of this decision should be corrected to read: THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant forty-eight point two eight six (48.286) weeks of healing period benefits at the stipulated rate of four hundred thirty-seven and 11/100 dollars ($437.11) per week payable commencing December 10, 1987 and totalling twenty-one thousand one hundred six and 29/100 dollars ($21,106.29). Defendants shall pay unto claimant fifty-seven (57) weeks of permanent partial disability benefits at the stipulated rate of four hundred thirty-seven and 11/100 dollars ($437.11) per week payable commencing November 12, 1988 and totalling twenty-four thousand nine hundred fifteen and 27/100 dollars ($24,915.27). Defendants shall have credit for all benefits paid voluntarily prior to hearing. As all benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendants shall pay all reasonable and necessary charges for further treatment by Dr. Szabados that are causally related to the subject work injury. The costs of this action shall be assessed to defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ____ day of May, 1992. Page 2 ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Joel T. S. Greer Attorney at Law 112 West Church Street P.O. Box 496 Marshalltown, Iowa 50158 Mr. John M. Bickel Attorney at Law 500 MNB Building P.O. Box 2107 Cedar Rapids, Iowa 52406-2107 Page 1 before the iowa industrial commissioner ____________________________________________________________ : ALAN REED, : : Claimant, : File No. 871076 : vs. : A R B I T R A T I O N : JAMES M. DAWDY, d/b/a : D E C I S I O N J. D. CARTAGE SERVICE, : : Employer, : Uninsured, : Defendant. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Alan Reed against James M. Dawdy, d/b/a J. D. Cartage Service. Reed seeks compensation and benefits based upon an injury he sustained on or about March 22, 1988. The issues for determination include whether Alan Reed was an employee of James M. Dawdy or an independent contractor; whether the injury arose out of and in the course of employment or whether it was a result of horseplay. No defenses were asserted under Code section 85.16. Claimant seeks to recover compensation for healing period. He asserts a claim for a running award. Claimant, alternatively, seeks compensation for permanent partial or permanent total disability. Claimant also seeks payment for medical expenses in the total amount of $5,714.16. In the prehearing report, it was stipulated that the providers of those medical services would testify that the fees charged were reasonable, that the treatment was reasonable and necessary and that no evidence to the contrary was being offered. The rate of compensation is also an issue. It was, however, stipulated that claimant was married and entitled to five exemptions. findings of fact Having considered all the evidence in the case and having observed the appearance and demeanor of the witnesses as they testified, it is found that the full extent of whatever occurred on March 22, 1988 at Springfield, Missouri cannot be determined. Mark Dawdy is found to be particularly devoid of credibility. The credibility of Alan Reed is not found to be particularly strong, though he is found to be considerably more credible than Dawdy. The record contains allegations from Dawdy that Reed was speeding and driving somewhat erratically during the travel from Sioux City to Springfield. Reed denies those allegations and counters that Mark Dawdy was smoking pot and acting erratically. The medical histories given to the Page 2 various medical providers are inconsistent (exhibit 1, page 20; exhibit 2, pages 3, 4, 70, 73 and 74). It is inconceivable that Mark Dawdy would have testified that he struck claimant if claimant had simply fallen or been accidently bumped in the head by equipment which was being unloaded. The severity of Reed's injuries is irreconcilable with Dawdy's statement that he hit Reed only once, but that it was not hard enough to have knocked him down. The testimony is sufficiently unlikely as to also render it unlikely that Dawdy was acting in self-defense. Claimant's testimony to the effect that he believes he was struck from behind is probably incorrect in view of the nature and location of the injuries on his head. That inaccuracy is possibly due to the severity of the injuries. There may have been some argument between Mark Dawdy and Alan Reed regarding the driving during the travel from Sioux City to Springfield. The only evidence in the record is that any argument they might have had dealt with the business and activities in which they were engaged for J. D. Cartage Service. The evidence fails to establish that Alan Reed was the instigator of any such argument or that he precipitated physical violence or physical contact between himself and Mark Dawdy. It is specifically found that whatever occurred caused Alan Reed to have a laceration inside his mouth on the right side which required sutures and a small laceration on the back of his head (exhibit 2, pages 30, 70 and 74). The traumas Reed sustained were sufficiently severe to cause intracerebral hematoma in the bifrontal and right temporal areas of claimant's head (exhibit 2, pages 2 and 16-19; exhibit 3). Based upon the testimony from Reed, Dawdy and the contents of exhibits 2 and 3, it is found that Mark Dawdy did strike Alan Reed and that Reed was knocked to the ground. It is found that the combination of the forces from being struck in the face and striking the pavement with his head produced Reed's intracerebral hematoma. The conflicts in the evidence and the lack of credibility prohibit further findings regarding most details of that altercation or incident. It is found that Reed's recovery from the injuries extended through October 3, 1988, the time at which his active medical work-up by the Veterans Administration was completed (exhibit 1, pages 2-15). In particular, it was noted on September 22, 1988 that claimant should be referred for better control of his medication levels (exhibit 1, page 15). On August 25, 1988, it was noted that he was showing slight improvement (exhibit 1, page 10). The last examination upon which the rating decision of December 21, 1988 was based had been performed on October 3, 1988 (exhibit 1, pages 2-5). That October 3, 1988 examination appears to mark the end of active treatment, other than that which is maintenance in nature. On March 22, 1988, Alan Reed was in the process of Page 3 driving a truck from Sioux City, Iowa to Springfield, Missouri on behalf of J. D. Cartage Service, a business owned by James M. Dawdy, the father of Mark Dawdy. Reed had signed a written document which designated him as an independent contractor. Reed did not, however, own a vehicle, pay the expenses of operating a vehicle, provide insurance for himself, employ assistants or other employees or otherwise operate as an independent contractor. Reed operated trucks which were owned by James M. Dawdy. James Dawdy controlled Reed's activities by telling him where to go, when to go, where to purchase fuel, where to have repairs made and in general completely controlled Reed's activities. Reed was not entitled to solicit loads to haul on his own or to otherwise work independently using Dawdy's vehicle. Reed functioned exclusively as an employee of James M. Dawdy and did not, in any manner, actually function or operate as an independent contractor. The written agreement which designated Reed as an independent contractor was a sham. It did not accurately reflect the actual relationship between Reed and James M. Dawdy. The record does not contain any actual showing of payments paid by Dawdy to Reed for the services which Reed performed. There is evidence that he was paid a percentage of the gross revenues for the deliveries which he made and that the pay was based upon the number of miles traveled. At one point, it was indicated that he earned as much as $540.00 in a week in which he would make five deliveries. When Reed prepared an occupational history for the Veterans Administration, he reported that he had earned $800.00 monthly from J. D. Cartage (exhibit 1, page 19). Taking into account the showing on that document as well as claimant's testimony, it is found that Reed's gross earnings fluctuated from week to week. It is found that his customary gross weekly earnings averaged $200.00 per week on a long-term basis. Alan Reed had been afflicted with a seizure disorder since being injured while in the Army in 1973. Prior to March 22, 1988, the seizure disorder had generally been fairly well controlled, although there had been some incidents of seizures during 1987 (exhibit 1, pages 20 and 28). When discharged from the Army in 1973, he was noted as having epilepsy, temporal lobe. His final medical profile upon discharge was that he was medically qualified for duty and that the seizure disorder did not make him unfit for military duty or require any major limitations (exhibit 1, pages 86 and 123). A previous profile had recommended restrictions upon his activities (exhibit 1, page 87). Reed was discharged from the Army due to the seizure disorder (exhibit 1, pages 116-123). He was awarded a permanent disability rating of ten percent by the Veterans Administration (exhibit 1, pages 52 and 58). Over the following years, Reed was trained as a bricklayer. He worked as a construction laborer. He performed repairs on semis. He worked for the post office. Page 4 When examined in 1979, he was doing well and the only type of care or treatment which was recommended was continued monitoring (exhibit 1, pages 53-55). EEG tests which had been conducted prior to March 22, 1988 had all been normal (exhibit 1, pages 29, 40 and 101). It is found that the injuries sustained on March 22, 1988 substantially changed Reed's preexisting seizure disorder. Post-injury EEG's were interpreted as being abnormal (exhibit 1, pages 24 and 30). He has had an increase in the frequency of his seizures, despite increased efforts at controlling the seizures through medication. The Veterans Administration has raised his disability rating from 10 percent to 40 percent (exhibit 1, pages 2 and 15). The change in his condition is apparent from a consultation sheet report found at pages 3-5 of exhibit 1. An MMPI conducted on or about August 25, 1988 confirmed organic cerebral impairment in the low moderate range (exhibit 1, page 11). Since the injury of March 22, 1988, Alan Reed has not returned to work. He has attempted further education, but has not completed any particular course of study. His success in training thus far does not indicate a high degree of probability that he will successfully complete the course. Reed's driving privileges have been taken away. His wife has driven him to school. He refuses to attend church with his family. His wife indicated that he will not perform housework and has no interest in marital relations. The March 22, 1988 injury clearly caused a substantial decrease in Reed's level of functioning. At this point in time, it appears as though Reed can probably return to some gainful employment. The Veterans Administration has not considered him to be totally disabled. His access to jobs has been severely decreased, however, as a result of the residuals of the March 22, 1988 injury. He can no longer drive due to the increase in his seizure activity. That one factor severely limits his employment possibilities. It appears as though his short-term memory for visual input and his overall capacity to organize visual input present major intellectual deficits. With this reduced level of functioning, his chances of successfully obtaining and maintaining gainful employment are greatly reduced. It is found that Alan Reed has sustained a 60 percent reduction in his earning capacity as a result of the injuries he sustained on March 22, 1988. conclusions of law It is concluded that Alan Reed was an employee of James M. Dawdy, d/b/a J. D. Cartage Service, on March 22, 1988. Iowa Code sections 85.18 and 85.20 clearly demonstrate that a contract cannot be used as a device to avoid the provisions of Chapter 85 of The Code. James M. Dawdy had the right of selection, was responsible for payment of wages, had the right to discharge or terminate the relationship, controlled the work and was responsible for having the work performed. James M. Dawdy was clearly Page 5 Reed's employer. Henderson v. Jennie Edmundson Hosp., 178 N.W.2d 429, 431 (Iowa 1970). The evidence does not show claimant to have been an independent contractor. Mallinger v. Webster City Oil Co., 211 Iowa 847, 851, 234 N.W. 254 (1929). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Alan Reed was in the process of making a delivery for his employer. Stopping to converse with coemployees is not the type of activity which would take him beyond the course of his employment. The words "arising out of" refer to the cause or source of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The "arising out of" requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986). Acts of violence by coemployees, when the violence is motivated by the work environment, are held to arise out of the employment. Cedar Rapids Community School Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); Haney v. University of Iowa, I Iowa Industrial Commissioner Report 129 (1980); Jacobsen v. Memorial Park Cemetery, I Iowa Industrial Commissioner Report 162 (1980); Felder v. Howard Steel Co., 33rd Biennial Report, Iowa Industrial Commissioner 67 (1978). The employer had not raised any defense under section 85.16 and is not entitled to rely upon any such defense. If such a defense had been raised, the employer would have the burden of proof. There is no evidence of horseplay, only an assault. It is therefore determined that the injuries Alan Reed sustained when he was struck by Mark Dawdy and fell to the ground are injuries which arose out of and in the course of his employment with James M. Dawdy. After an injury, the worker is entitled to recover weekly compensation for healing period under the provisions of Iowa Code section 85.34(1). If the employee does not return to work, the healing period ends when it is medically indicated that significant improvement from the injury is not anticipated or when the employee is medically capable of returning to employment substantially similar to that in which he was engaged at the time of injury, whichever occurs first. In this case, it does not appear as though Reed will ever be able to resume truck driving in view of the nature of his seizure disorder. The healing period is terminated upon the end of significant improvement from the injury. The healing period terminates at the time the attending physician determines that the employee has recovered as far as possible from the effects of the injury. Thomas v. Page 6 William Knudson & Son, Inc., 349 N.W.2d 124, 126 (Iowa App. 1984); Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa App. 1981). Reed's entitlement to healing period compensation therefore ends on October 3, 1988, the date at which his medical treatment ceased, other than for that which has been maintenance in nature. Reed's claim for a running award of healing period is therefore denied. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). Reed's injury appears to have permanently worsened his preexisting seizure disorder. Permanent disability is that which is lasting rather than temporary. It need not embrace the idea of absolute perpetuity. Wallace v. Brotherhood, 230 Iowa 1127, 300 N.W. 322 (1941). The aggravation of Reed's preexisting seizure disorder has lasted sufficiently long in order to characterize it as being permanent. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." 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, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Page 7 Harrison County, 34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. In view of Reed's loss of his ability to drive lawfully and the reduction in some of his mental functioning, it is clear that he has a very serious injury. His industrial disability from this injury is concluded to be 60 percent. He is therefore entitled to recover 300 weeks of compensation for permanent partial disability under the provisions of Code section 85.34(2)(u). It is expected that his access to employment will be quite limited, but it is also expected that he will be employable. Claimant has sought to recover medical expenses totalling $5,714.16. The only real issue with those expenses is that of the employer's liability. Since the employer has been found to be liable for the injury, the employer is obligated under the provisions of Code section 85.27 to pay the following medical expenses: Lester E. Cox Medical Center (exh. 6) $4,488.61 Southwest Missouri Neurological Group (exh. 7) 320.00 Robert L. Elworth, M.D. (exh. 8) 75.00 Radiological Associates, P.C. (exh. 9) 326.00 Emergency Physicians of Springfield (exh. 10) 131.00 Headache and Pain Control Center (exh. 11) 315.00 Greenville Pharmacy (exh. 12) 58.55 Total $5,714.16 The charges from Pat Luse, D.C., appear to have been incurred for an examination that was intended to be used for purposes of litigation. It was not for treatment. The employer is therefore not responsible for payment of the charges. It was stipulated that Reed was married and entitled to five exemptions. With weekly earnings of $200.00, his rate of weekly compensation under the July 1, 1987 benefit schedule is $144.69. Iowa Code section 85.36. order IT IS THEREFORE ORDERED that James M. Dawdy pay Alan Reed twenty-eight (28) weeks of compensation for healing period at the rate of one hundred forty-four and 69/100 dollars ($144.69) per week commencing March 22, 1988. IT IS FURTHER ORDERED that James M. Dawdy pay Alan Reed three hundred (300) weeks of compensation for permanent partial disability at the rate of one hundred forty-four and 69/100 dollars ($144.69) per week commencing October 4, 1988. IT IS FURTHER ORDERED that all accrued amounts be paid in a lump sum together with interest computed at the rate of ten percent (10%) per annum from the date each payment came due until the date of actual payment pursuant to Code section 85.30. IT IS FURTHER ORDERED that James M. Dawdy pay the Page 8 following medical expenses: Lester E. Cox Medical Center (exh. 6) $4,488.61 Southwest Missouri Neurological Group (exh. 7) 320.00 Robert L. Elworth, M.D. (exh. 8) 75.00 Radiological Associates, P.C. (exh. 9) 326.00 Emergency Physicians of Springfield (exh. 10) 131.00 Headache and Pain Control Center (exh. 11) 315.00 Greenville Pharmacy (exh. 12) 58.55 Total $5,714.16 IT IS FURTHER ORDERED that the costs of this action are assessed against James M. Dawdy pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that James M. Dawdy file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law 632-640 Badgerow Building P.O. Box 1194 Sioux City, Iowa 51102 Mr. Rodney D. Vellinga Attorney at Law 400 Security Bank Building P.O. Box 3527 Sioux City, Iowa 51102 Page 1 1105, 1402.10, 1504 1602, 5-1802, 1803 2206, 3001 Filed July 16, 1990 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : ALAN REED, : : Claimant, : File No. 871076 : vs. : A R B I T R A T I O N : JAMES M. DAWDY, d/b/a : D E C I S I O N J. D. CARTAGE SERVICE, : : Employer, : Uninsured, : Defendant. : ____________________________________________________________ 1105, 1602 Where claimant was struck by a coemployee in what might have been a disagreement over claimant's work performance, such was held to be an injury which arose out of and in the course of employment where the evidence failed to show that the claimant instigated the dispute or the physical contact. 5-1802 Healing period awarded until the medical assessment of the condition was completed. 2206 Claimant had a preexisting seizure disorder which was worsened by head injuries sustained when struck and knocked to the ground by a fellow employee. 1803 Where the claimant had lost his ability to drive due to the increased frequency of seizures and had some reduction in his mental functioning, such was held sufficient to award 60 percent permanent partial disability. Claimant was in school and appeared to have some potential for resuming employment, albeit limited. 1402.10, 1504 Despite a written independent contractor agreement, the claimant was held to be an employee where he clearly worked as an employee, did not own a truck and was completely controlled in his employment activity by the employer. Page 2 3001 The evidence did not contain any clear showing of claimant's actual earnings. Based upon claimant's statements and an occupational history which he provided to the Veterans Administration, his weekly earnings were found to be $200.00. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT JOHNSON, Claimant, File No. 871107 VS. FIRESTONE TIRE & RUBBER A R B I T R A T I 0 N CO., D E C I S I 0 N Employer, and CIGNA, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration wherein Robert D. Johnson seeks compensation for healing period, permanent partial disability and payment of certain psychiatric expenses based upon an alleged right foot injury on November 4, 1987, which he further alleges resulted in a low back injury and body as a whole impairment rather than limited to a scheduled injury. The case was heard on April 2, 1990 in Des Moines, Iowa. The record in the proceeding consists of the testimony of claimant, claimant's Exhibits 1 through 10, and defendants, Exhibits A through H. ISSUES The issues for resolution are: 1. Whether claimant's alleged permanent impairment or disability is causally connected to his November 4, 1987 injury; 2. The nature and extent of claimant's disability and if there is a permanent disability, the commencement date of payment; and 3. Whether claimant is entitled to Iowa Code section 85.27 benefits regarding any psychiatric treatment. JOHNSON V. FIRESTONE TIRE & RUBBER CO. Page 2 REVIEW OF THE EVIDENCE Claimant is a 31-year-old high school graduate who has no other formal education. Claimant described his work history which basically involved manual labor jobs, including working in the meat packing industry and being a brakeman for the Rock Island Railroad. Claimant began working for defendant employer on March 6, 1984 and performed various jobs. Claimant's right foot was injured on November 4, 1987 when a mold came open and a tire became stuck between the mold and the post inflater, resulting in the tire falling on claimant's right foot. Claimant sought medical help from the company nurse but sought ther help when this treatment did not help and claimant's pain became worse. Claimant continued to work but was having trouble walking due to the pain in his foot, which pain went up to his waist. Claimant then sought the help of Patrick D. Reibold, M.D., on December 2, 1987. This doctor eventually referred claimant to David C. Johnson, D.P.M., a podiatrist, who treated claimant and then referred claimant to a Dana L. Simon, M.D., who diagnosed claimant's condition as a sympathetic reflex dystrophy. Claimant was advised to stay off his foot or else his condition would become worse. Claimant was off work then from December 1, 1987 up to and not including June 19, 1989. Claimant's medical records indicate claimant was experiencing back pain and was taking medicine for its relief, at least up to and including October 17, 1986. (Defendants, Exhibit G, page 85-86) Claimant was hospitalized on October 11, 1986 for a diagnosis of a personality disorder, back pain secondary to intervertebral disc disease L5-Sl level, situational stress, marital discord, and claimant was having psychotherapy and drug therapy. (Def. Ex. G, p. 34) Claimant said he was also in the hospital at the time for cocaine use. Claimant was put in Iowa Lutheran Hospital in December 1988 for depression and suicidal tendencies and for cocaine abuse. (Def. Ex. G, p. 3) Claimant blames his depression on the fact that his injury was getting no better and he was not receiving workers, compensation benefits and everything was going downhill. Claimant acknowledged he had prior suicidal thoughts, a drug problem and received treatment for it at Iowa Methodist Hospital prior to his 1987 injury. Foot surgery was recommended at Rochester which would involve severing the sympathetic nerve and require a $1,500 deposit. Claimant wanted a.second opinion. No second opinion was obtained and no surgery was performed. Claimant said he had a foot injury at age 9 when a rod ran through his foot, but he emphasized he suffered no impairment from that injury. In claimant's deposition taken April 17, 1989, JOHNSON V FIRESTONE TIRE & RUBBER CO. Page 3 claimant and/or his attorney indicated that claimant was not making a claim for any back injury, that their only claim was for a psychiatric problem and a foot and leg problem. (Def. Ex. A, pp. 20-21) Claimant testified in his deposition that his back injury right then was from another injury in November 1985. Claimant testified at the hearing that he has filed an action for a herniated disc injury to his back and claims no back damage from his November 1987 injury, but did contend that he has low back pain due to his foot injury. Claimant said he had emotional problems as a child and an unstable home, resulting in detention homes and getting into trouble. Claimant is now working full-time driving a fork lift making $12.30 per hour versus $14.70 per hour he would be making if he held the same job he held at the time of his November 4, 1987 injury. Claimant's medical reflects an injury to claimant's right foot occurring on November 4, 1987. (Def. Ex. D, pp. 2-4) Although claimant complains of pain into his lower back that he contends originates from his right foot injury, this is not substantiated by the medical evidence. Any pain claimant is having in his low back is a result of claimant's prior injuries. Defendants, Exhibit G, page 47, reflects on October 16, 1986 that Pt has had a long term history of pain and discomfort associated with low back. Pt was initially injured approx. 1 yr. ago and then earlier this fall did suffer another injury. Pt states that he does have radiological evidence of bulging disc at the L-3, L-4 level. Pt. complaining of most pain and discomfort at this time in low back area. Dr. Reibold's November 1989 letter indicated that improvement was not anticipated as of claimant's first visit to him in December 1987. Dr. Reibold said claimant had a degree of permanent functional impairment to his right lower extremity, but he did not specify the percent. He related work restrictions of no extended periods of ambulation and indicated he thought claimant could engage in gainful employment as long as he could perform a job in which he would basically be sitting all day. He did not think claimant had any disability involving his upper extremities or back (Def. Ex. D, p. 2) Thomas A. Carlstrom, M.D., in September 1989 could not relate any impairment rating (Def. Ex..C). There are conflicting reports from three psychiatrists: Karl Northwall, M.D., on January 18, 1989 attributed 10 to 15 percent mental disability due to claimant's November 18, 1987 injury (Claimant's Exhibit 3). Another doctor, Ilhan Conklu, on December 22, 1988 opined claimant's current mental episode as partially aggravated by the accident and constant leg pain (Cl. JOHNSON V. FIRESTONE TIRE St RUBBER CO. Page 4 Ex. 2). A third doctor, Michael J. Taylor, on July 26, 1989, opined that claimant suffers from a life-long personality disorder which is effected by stress and concluded the other two psychiatrists overestimated claimant's mental situation. Dr. Taylor saw no need for claimant to take medicine (Lithium Carbonate) that he is currently taking and needs no psychiatric intervention to allow claimant to be employed (Def. Ex. B). On November 20, 1988, Dana L. Simon, M.D., director of Mercy Nerve Block Center, discussed possible surgery, referring to a lumbar sympathectomy to relieve claimant's foot pain but was not overly optimistic of any success (Cl. Ex. 4). David C. Johnson, D.P.M., opined on June 1, 1989 that claimant had a 15 to 20 percent disability to the body as a whole (Cl. Ex. 5). Dr. Johnson released claimant to return to work on June 1, 1989 providing claimant was able to be off his feet 85 percent of the time and lift no more than 35 pounds (Cl. Ex. 9). N. Gavin, D.O., reports on his impression that claimant has a reflexine sympathetic dystrophy (Cl. Ex. 6). This diagnosis was common among most of the various doctors, excluding the psychiatrists. APPLICABLE LAW The claimant has the burden of proving by a preponderance of the evidence that the injury of November 4, 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). JOHNSON V. FIRESTONE TIRE & RUBBER CO. Page 5 If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). Iowa Code section 85.34(l) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. Iowa Code section 85.34(2)(n) provides: "For the loss of a foot, weekly compensation during one hundred fifty weeks." ANALYSIS Claimant has had a long-term history of mental disorder. This condition is easily triggered by episodes in claimant's life like but not limited to a divorce, girlfriend, injury, loss of a child, and stress. Claimant is blaming his mental problems on his right foot injury and back problems. There is no dispute that claimant injured his right foot, a scheduled member, on November 4, 1987. Claimant has had a long history of back problems. He contends his current back problems are the result of his right foot injury. At the time of claimant's deposition in April 1989, his attorney indicated that they were not making claim for a back injury which occurred as a result of another accident. The greater weight of medical evidence does not support claimant's contentions that his current back condition was caused by his November 4, 1987 injury. Claimant has failed in his burden of proof to show he has an injury to his body as a whole. The medical evidence shows claimant injured his right foot and the undersigned so finds. The law is clear that an injury to a scheduled member and any impairment found under 85.34(2)(n) includes any psychological injury. The undersigned does not find any psychological injury to claimant resulting from his November 4, 1987 right foot injury but if it did so find, it would be JOHNSON V. FIRESTONE TIRE & RUBBER CO. Page 6 included in any scheduled member impairment found as provided by the law. The medical testimony indicates no doctor placed an impairment rating on claimant's foot, except Dr. Johnson, a podiatrist, opined a 15 to 20 percent disability to claimant's body as a whole. It is presumed the doctor means impairment, not disability, as the undersigned determines disability. How this doctor arrived at this rating is not determinable without the undersigned making certain presumptions or guesses. The doctor may have converted a foot impairment to a body as a whole, but this is not proper if the doctor did this, under the facts of this case, the nature of the injury and the law. The doctor did place some restrictions on the claimant. Although a rating need not be opined by a doctor before the undersigned can find an impairment, the undersigned finds that there is an impairment to claimant's right foot and restrictions contribute to this impairment. The overwhelming weight of medical evidence shows claimant has a sympathetic reflex nerve dystrophy which resulted from claimant's right foot injury. Claimant was able to work before his injury without a sympathetic reflex dystrophy condition. The undersigned finds claimant's November 4, 1987 injury caused claimant's right foot dystrophy condition causing claimant to have an impairment to his right foot. Dr. Johnson is a foot specialist and is the most experienced in this area since it involves a foot. It is obvious that claimant has a serious foot condition. Claimant is coping reasonably well but this does not lessen the impairment. Although some people can lessen the effect of an impairment by effort and motivation, the impairment is still there. The undersigned finds claimant has a 45 percent permanent partial impairment to his right foot. It is further found that claimant's permanent impairment is causally connected to his November 4, 1987 injury. Claimant was off work as stipulated by the parties from December 1, 1987 up to and not including June 19, 1989. Dr. Johnson released claimant to return to work with certain restrictions on or around June 1, 1987 (Cl. Ex. 9). Claimant is. entitled to healing period for the period of time as stipulated by the parties. Any sick pay claimant received during this period will be credited against the healing period benefits. Claimant's permanent partial disability benefits shall begin June 19, 1989. The parties are disputing the psychiatric.bills. Claimant has had many problems in his life which has left him in a situation that he will most likely need psychiatric help on and off the rest of his life. It is obvious many things can trigger his condition. Claimant has failed to prove his psychiatric bills are causally connected to his injury of November 4, 1987.' JOHNSON V. FIRESTONE TIRE & RUBBER CO. Page 7 FINDINGS OF FACT 1. Claimant injured his right foot at work on November 4, 1987 as a result of a tire falling on his right foot. 2. Claimant suffered a sympathetic reflex dystrophy in his right foot as a result of his work injury on November 4, 1987. 3. Claimant incurred a 45 percent permanent partial impairment to his right foot as a result of his November 4, 1987 injury. 4. Claimant did not incur an injury or impairment to his low back or to his body as a whole as a result of his November 4, 1987 injury. 5. Claimant has had a long-term low back problem all his life. 6. Claimant failed to prove his psychological condition and expenses is a result of his November 4, 1987 injury. 7. Claimant has had psychological problems resulting from general stress, marital problems, girlfriend problems, cocaine use, depression, and a life-long personality disorder, which problems are not materially the results of nor caused by claimant's November 4, 1987 injury. 8. Claimant has incurred a healing period beginning December 1, 1987 up to and not including June 19, 1989, which involves 80.857 weeks. 9. Claimant's psychiatric bills are not the result of claimant's November 4, 1987 injury and are the sole responsibility of claimant. CONCLUSIONS OF LAW Claimant's right foot injury arose out of and in the course of his employment on November 4, 1987. Claimant's November 4, 1987 work injury caused him to incur a sympathetic reflex dystrophy condition in his right foot. Claimant's November 4, 1987 injury caused him to incur a 45 percent permanent partial impairment to his right foot. Claimant's injury on November 4, 1987 did not cause any low back injury or body as a whole injury to claimant. JOHNSON V. FIRESTONE TIRE & RUBBER CO. Page 8 Claimant's November 4, 1987 injury caused claimant to incur healing period beginning December 1, 1987 up to but not including June 19, 1989, involving 80.857 weeks. Any psychological problems claimant has were not proximately caused by his November 4, 1987 injury. Claimant pays his own psychiatric bills. ORDER THEREFORE, it is ordered: That defendants shall pay unto claimant healing period benefits at the rate of three hundred sixty-one and 74/100 dollars ($361.74) for the period beginning December 1, 1987 up to but not including June 19, 1989, which involves eighty point eight five seven (80.857) weeks. Claimant shall be given credit for the sick pay benefits he received beginning February 22, 1988 through March 19, 1989, amounting to eleven thousand seven hundred dollars ($11,700.00). Defendants shall pay unto claimant sixty-seven point five (67.5) weeks of permanent partial disability benefits at the rate of three hundred sixty-one and 74/100 dollars ($361.74) beginning June 19, 1989. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. The parties agreed that defendants had paid ten (10) weeks of benefits at the rate of three hundred forty-one and 09/100 dollars ($341.09) for which defendants shall receive credit. That claimant is responsible for and shall pay all his medical and hospital bills incurred for psychiatric treatment and services. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to Division of Industrial Services Rule 343-3.1 JOHNSON V. FIRESTONE TIRE & RUBBER CO. Page 9 Signed and filed this 23rd day of May, 1990 BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Jeffrey G Flagg Attorney at Law 2716 Grand Ave Des Moines IA 50312 Mr Marvin Duckworth Attorney at Law Terrace Ctr Ste 111 2700 Grand ave Des Moines IA 50312 Mr Stuart M Pepper Attorney at Law 3913 Ingersoll Ave Des Moines IA 50312 5-1108; 1803.1 Filed May 23, 1990 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT JOHNSON, Claimant, File No. 871107 VS. FIRESTONE TIRE & RUBBER A R B I T R A T I 0 N CO., D E C I S I 0 N Employer, and CIGNA, Insurance Carrier, Defendants. 1803.1 Found claimant incurred an injury to his right foot resulting in a sympathetic reflex dystrophy. Award of benefits based on a scheduled member injury and not a body as a whole, notwithstanding the doctor opining a 15-20% body as a whole impairment. Claimant found to have a 45% permanent partial impairment to his right foot. 5-1108 Claimant's psychological problems not causally connected to his injury, but if so found, they would be included in the scheduled injury benefits anyway and not in addition thereto.