Page 1

 

 

 

 

 

BEFORE THE IOWA INDUSTRIAL COMMISSIONER

 

____________________________________________________________

 

 

 

KARLA A. GODDARD,

 

 

Claimant,

 

 

vs.

 

File No. 877509

 

DICKINSON CO. MEMORIAL HOSP.,

 

A P P E A L

 

Employer,

 

D E C I S I O N

 

and

 

 

EMPLOYERS MUTUAL COMPANIES,

 

 

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.

 

 

ISSUES

 

 

Those portions of the proposed agency decision pertaining to

 

issues not raised on appeal are adopted as a part of this

 

appeal decision. The issues raised on appeal are:

 

(1) [W]hether the Deputy Commissioner erred in determining

 

that a causal relationship exists between claimant's

 

complaints at the time of hearing and the injury of February

 

5, 1988; (2) whether the Deputy Commissioner erred in

 

applying the law in determining that the claimant had a 35

 

percent industrial disability to the body as a whole; and

 

(3) whether there is evidence in the record when viewed as a

 

whole to support the findings of the Deputy Commissioner

 

with regard to industrial disability.

 

 

FINDINGS OF FACT

 

 

The findings of fact contained in the proposed agency

 

decision filed May 23, 1991 are adopted as set forth below.

 

Segments designated by asterisks (*****) indicate portions

 

of the language from the proposed agency decision that have

 

been intentionally deleted and do not form a part of this

 

final agency decision.

 

 

causal connection-temporary disability-permanent disability

 

 

It is determined that the injury was the cause of both

 

temporary and permanent disability.

 

 

Brian W. Nelson, M.D., a board certified orthopedic

 

surgeon, who was claimant's treating physician in her home

 

community, testified that the injury was the cause of

 

claimant's subsequent treatment, surgery and disability

 

 

 

Page 2

 

 

 

 

 

(claimant's exhibit 4, pages 13-15). Dr. Nelson further

 

clarified that the insurance company representative was

 

incorrect when she determined that this injury was not

 

related to claimant's employment simply because claimant had

 

a preexisting spondylolisthesis. Dr. Nelson stated, "I

 

think there was a relationship...I think I've said that

 

several times." (ex. 4, p. 20).

 

 

Dr. Nelson acknowledged that in his first office note,

 

dated February 8, 1988, he made the remark that "it is

 

questionable whether this is workmen's[sic] compensation."

 

He explained that he made this remark because claimant

 

answered, "Iffy" in answer to this question in his intake

 

form. Claimant explained that she marked the intake form in

 

this fashion because she had never had a workers'

 

compensation claim before and she thought that it would have

 

to be an approved claim in order to state that it was a

 

workers' compensation claim. Dr. Nelson indicated that he

 

had cleared this up by his letter of July 7, 1988, to the

 

insurance claim representative in which he stated:

 

 

It is my opinion that she did have a new injury

 

on the 5th of February, 1988, after lifting a 2

 

year old baby in the hospital. This injury was

 

super-imposed upon a pre-existing Grade 1

 

spondylolisthesis. In my opinion, the fact that

 

the patient has this pre-existing

 

spondylolisthesis has contributed to the fact that

 

she had so much trouble recovering from this

 

injury. However, prior to this injury, she was

 

doing relatively well.

 

 

(Claimant's exhibit 4, deposition exhibit 1, page 7).

 

 

Aggravation of a preexisting condition is a common form

 

of injury in the workers' compensation world. The employer

 

takes the employee as is and, therefore, takes him or her

 

subject to any active or dormant health impairment. Lawyer

 

and Higgs, Iowa Workers' Compensation--Law and Practice,

 

section 4-2, page 21.

 

 

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).

 

 

Dr. Nelson said that even though he said she was much

 

better after attending his back clinic on April 18, 1988,

 

and then was worse on August 12, 1988, there was not another

 

new injury, but rather just a gradual onset of symptoms as

 

she was doing her job at work (ex. 4, pp. 31-34). The

 

doctor clarified as follows:

 

 

I think the key thing for Karla here is that she

 

 

 

Page 3

 

 

 

 

 

apparently, despite all of her problems with her

 

back, was functioning. There was a real

 

difference in her functioning before February and

 

after February. She had pain, but she was

 

performing her job and doing everything. She was

 

pushing the C-arm and seemed to be doing fairly

 

well. After February there seemed to be a real

 

deterioration in her ability to function.

 

 

....

 

 

She never went back and functioned fully....

 

 

(Claimant's exhibit 4, pages 35 & 36).

 

 

Dr. Nelson stated on September 15, 1988:

 

 

RECOMMENDATIONS: 1) Although it is impossible to

 

say for sure, I do believe that within reasonable

 

medical certainty that the patient's symptoms now

 

are still part of the aggravation from her initial

 

injury approximately 7 months ago.

 

 

2) Because the pain is getting worse and is

 

now having unacceptable pain requiring narcotic

 

pain medications, I believe she will have to

 

consider surgery and, therefore, I have arranged

 

for her to be seen by Dr. James Ogilvie in

 

Minneapolis on the 21st of October, 1988. He is a

 

spine specialist. This patient may need a

 

decompression and fusion with plating.

 

 

3) In the meantime, the patient may continue

 

with light duty at work. She may do no heavy

 

lifting and she should no longer push the portable

 

x-ray machine as this seems to be very aggravating

 

to her pain.

 

 

4) I will plan on sending a copy of this to

 

her employers at the hospital and to her insurance

 

company. There seems to be some question as to

 

whether or not the company will pay for further

 

treatment. Although I certainly can not compel

 

them to pay, it does appear that in this case that

 

this whole symptom complex is related to the

 

patient's activities at work and her injury of 7

 

months ago.

 

 

(Claimant's exhibit 1, page 39)

 

 

James W. Ogilvie, M.D., a board certified orthopedic

 

surgeon and also a treating physician and operating surgeon,

 

testified that he is a faculty member at the University of

 

Minnesota Department of Orthopedic Surgery specializing in

 

spine surgery (ex. 3, p. 4). He performed a fusion of L5 to

 

S1 with the use of an internal fixation devise called Steffe

 

Instrumentation. The fusion was accomplished with a bone

 

taken from her right illiac crest for the bone graft (ex. 3,

 

p. 8; ex. 1, pp. 48 and 49). The radiology report for the

 

day following the surgery reported, "Steffe plates are in

 

 

 

Page 4

 

 

 

 

 

place bilaterally at L5 and S1 with interpedicular screws in

 

place. There has also been a laminectomy at L5. There

 

appears to be good alignment with no spondylolisthesis.

 

Surgical drains are in place in the right pelvis." (ex. 1,

 

p. 50).

 

 

The spondylolisthesis was first diagnosed when claimant

 

was injured on May 27, 1983, lifting a patient on a toilet.

 

She lost no time from work and did not see a doctor, but did

 

receive physical therapy for a period of time at the

 

hospital (ex. 1, pp. 1-7 & 29). Claimant had a similar

 

flare-up at home on February 7, 1985, and it was treated

 

with physical therapy only without residual effect (ex. 1,

 

pp. 25 & 26).

 

 

Dr. Ogilvie testified that claimant's condition was the

 

direct result of the incident which occurred at work on

 

February 5, 1988 (ex. 3, p. 12). He explained:

 

 

She had persistent pain which was unresponsive to

 

conservative treatment. She certainly had her

 

spondylolisthesis prior to February of 1988. It

 

was symptomatic at times, but in the past had

 

always improved with a little bit of time and

 

minimal treatment. That was evidently not the

 

case with the incident in February of 1988.

 

 

(Claimant's exhibit 3, page 12)

 

 

Dr. Ogilvie stated on March 3, 1989:

 

 

In response to the specific questions which you

 

have asked, it is very likely that the lifting

 

incident aggravated her symptoms and while it is

 

not possible in an absolute sense to document what

 

anatomic changes took place as a result of her

 

injury, it is well known that in adults, a

 

spondylolisthesis which was previously

 

asymptomatic or minimally symptomatic can become

 

permanently symptomatic with an injury.

 

 

(Claimant's exhibit 1, page 58)

 

 

Dr. Ogilvie wrote to Dr. Nelson on October 21, 1988,

 

"Thank you for the opportunity of examining this 25 year-old

 

Caucasian female. As you know, since February of 1988, she

 

has had back and left extremity pain following a

 

work-related incident." (ex. 1, p. 47).

 

 

He stated that the surgery was caused by the incident

 

of February 5, 1988, (ex. 3, p. 13). He stated that she has

 

suffered a permanent functional and physical impairment (ex.

 

3, p. 14). He related that in the state of Minnesota it

 

would be rated as 17.5 percent functional disability to the

 

body as a whole (ex. 3, p. 15). He believed that claimant

 

had significant symptoms from the date of the injury,

 

February 5, 1988, until she saw him on October 21, 1988 (ex.

 

3, pp. 23 & 24).

 

 

Defendants' suggestion that claimant might have been

 

 

 

Page 5

 

 

 

 

 

injured while taking chiropractic treatment from Roger

 

Heimensen, D.C, between April and September of 1988, is not

 

supported by any evidence of any kind (ex. 1, pp. 68-74).

 

 

Wherefore, it is determined that the injury of February

 

5, 1988, was the cause of temporary and permanent

 

disability.

 

 

entitlement-temporary disability

 

 

Claimant is entitled to 33.571 weeks of healing period

 

benefits.

 

 

The parties stipulated that claimant is entitled to

 

healing period benefits from November 1, 1988 through June

 

1, 1989. In addition, however, claimant is asserting

 

additional days of time lost from work due to this injury.

 

In support of that claim, she has prepared an itemized list

 

of days and hours lost from work due to the injury which

 

totals 34.78 weeks (ex. 11). *****

 

 

In this case, it can be verified that Dr. Nelson took

 

claimant off work from March 14, 1988 to March 21, 1988, a

 

period of one week (ex. 1, p. 41). He then took claimant

 

off work again for one week from October 17, 1988 to October

 

24, 1988 (ex, 1, p. 40; ex. 4, p. 13), however, during this

 

week she saw Dr. Ogilvie on October 21, 1988, and he

 

continued to keep her off work from that date through June

 

1, 1989 (ex. 3, pp. 16 & 17; ex. 1, p. 46). The period of

 

time from October 17, 1988 through June 1, 1989, is 32.571

 

weeks. The total time off work for which claimant is

 

entitled to healing period benefits is 33.571 weeks (one

 

week plus 32.571 weeks).

 

 

Claimant was evaluated by Peter D. Wirtz, M.D., on

 

September 30, 1989. Dr. Wirtz stated:

 

 

Based on her history and resolution of the

 

symptoms by April 18, 1988 note, it would by my

 

opinion that the condition that occurred on 2/5/88

 

was temporary in nature and had cleared by the

 

4/18/88 examination. Recurrent symptoms 9/12/88

 

note would indicate new etiology of muscular

 

symptoms as would be expected with this condition

 

which with natural progression requires surgical

 

intervention in those that are repeatedly and

 

chronically symptomatic.

 

 

(Defendants' exhibit A, p. 2)

 

 

The testimonies of Dr. Nelson and Dr. Ogilvie are found

 

to be more reliable and accurate than the testimony of Dr.

 

Wirtz. Rockwell Graphics Systems, Inc. v. Prince, 366

 

N.W.2d 187, 192 (Iowa 1985).

 

 

entitlement-permanent disability

 

 

It is determined that claimant has sustained a 35

 

percent industrial disability to the body as a whole and is

 

entitled to 175 weeks of permanent partial disability

 

 

 

Page 6

 

 

 

 

 

benefits as industrial disability.

 

 

The parties stipulated that the type of permanent

 

disability is industrial disability.

 

 

Claimant, born January 10, 1962, was 26 years old at

 

the time of the injury and 28 years old at the time of the

 

hearing and 29 years old at the time of this decision.

 

Because of her young age, intelligence, and adaptability,

 

her loss of earning capacity is less significant than it

 

would be for a person in their middle working years near the

 

peak of their earnings career. Becke v. Turner-Busch, Inc.,

 

Thirty-fourth Biennial Report of the Industrial Commissioner

 

34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II

 

Iowa Industrial Commissioner Report 426 (1981); McCoy v.

 

Donaldson Company, Inc., IAWC Decisions of the Iowa

 

Industrial Commissioner 400 (1989).

 

 

Claimant is a high school graduate and attended the

 

University of Iowa for two years and graduated from the

 

course in x-ray technology. She started to work immediately

 

for employer on July 6, 1982, as an x-ray technician (tr. p.

 

24).

 

 

Peter D. Wirtz, M.D., an orthopedic surgeon, evaluated

 

claimant for defendants and determined that claimant had a

 

10 percent impairment to the body as a whole (ex. A, p. 3).

 

Dr. Wirtz added, "This condition of spine fusion leads to

 

symptoms of back pain with excessive activities or motions

 

such as bending, twisting, lifting, pushing and pulling

 

activities." (ex. A, p. 3).

 

 

Jay Michael Donohue, M.D., claimant's evaluator,

 

determined that claimant had a 12 percent permanent

 

impairment to the body as a whole based upon the AMA

 

guidelines, edition three (ex. 1, p. 45).

 

 

Dr. Ogilvie described claimant's impairment as follows,

 

"A physical impairment with respect to Mrs. Goddard's low

 

back condition, according to Minnesota Statutes, is 7% for

 

grade I spondylolisthesis which is only mildly symptomatic.

 

If those symptoms increased to the level where surgery is

 

required, the impairment is 17.5%." (ex. 1, p. 58).

 

 

Although Dr. Nelson did not give a formal rating as

 

such, he did indicate in his deposition testimony that

 

claimant probably should not return to the x-ray department

 

no matter what happened to her (ex. 4, p. 13). Dr. Nelson

 

further described the residual effects of her operation as

 

follows:

 

 

She'll have a permanent disability. She underwent

 

a very large spinal operation. There are all

 

degrees of spinal operations. And the one that

 

she underwent was a relatively large one. She now

 

has plates and screws in her back. And she's

 

going to have to take it easy on her back and

 

protect herself for the rest of her life. And so

 

anybody undergoing an operation of that magnitude,

 

even if they have a perfect result and are

 

 

 

Page 7

 

 

 

 

 

painfree, in my mind has a permanent impairment

 

just because you've now permanently altered her

 

anatomy.

 

 

(Exhibit 4, page 15).

 

 

In his deposition, Dr. Ogilvie repeated his 17.5

 

percent functional impairment rating (ex. 3, p. 15). He

 

added, "I think it would be unwise for her to return to a

 

job that required repetitive heavy lifting or lifting with

 

poor body mechanics." (Ex. 3, p. 16).

 

 

Claimant described her job as one which required a

 

great deal of vigorous work moving heavy portable x-ray

 

machines all over the hospital and lifting and moving

 

patients from sometimes awkward positions. Dr. Nelson

 

thought that she should not return to x-ray technician work

 

under any circumstances. Dr. Ogilvie stated she should not

 

do work which required repeated heavy lifting or heavy

 

lifting with poor body mechanics. The x-ray technician job

 

requires heavy lifting and heavy lifting with poor body

 

mechanics.

 

 

Therefore, claimant is foreclosed from the job that she

 

was trained to do. She devoted two years of her life at the

 

University of Iowa plus the tuition, books and fees and

 

other college expenses to become a qualified x-ray

 

technician. She acquired approximately six years of working

 

experience as an x-ray technician. Due to this injury she

 

is foreclosed from performing that work. Michael v.

 

Harrison County, Thirty-fourth Biennial Report of the

 

Industrial Commissioner 218, 220 (Appeal Decision January

 

30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa

 

Industrial Commissioner Report 282 (1984).

 

 

*****

 

 

Claimant testified that she was earning $8.30 per hour

 

when she was terminated by employer on May 1, 1989, when her

 

medical leave of absence expired (ex. 8). Employer refused

 

to honor claimant's request through her attorney that she

 

not be terminated because the doctor had not released her to

 

work. She was released June 1, 1989 (ex. 10). At the time

 

of the hearing, claimant was earning $4.25 per hour working

 

in a printing factory. With employer she had several

 

employee benefits, such as, health insurance, three weeks

 

vacation, sick leave, group life insurance and pension

 

benefits with the Iowa Public Employees Retirement System.

 

With her current employer, she only has one week of vacation

 

and a much higher deductible on her health insurance. She

 

was turned down for work at two of the localities' most

 

prolific employers because of the fact that she had a back

 

injury (tr. pp. 55-58).

 

 

Claimant was motivated to work and returned to

 

employment as soon as she was released to work by Dr.

 

Ogilvie.

 

 

Claimant, previously a very athletic person, is limited

 

in her ability to dance, play volleyball, ride horseback,

 

 

 

Page 8

 

 

 

 

 

water ski, and jog. She can no longer ride her 10-speed

 

bike because she cannot bend over in the position required

 

to ride that bicycle (tr. p. 63).

 

 

In summary then, claimant is a female in her late 20's

 

with a high school education and two years invested in the

 

x-ray technician course at the University of Iowa and six

 

years of work experience which she is foreclosed from using.

 

She has a physical and functional impairment to the body as

 

a whole somewhere between 10 and 17.5 percent. In addition,

 

she has sustained a 50 percent actual loss of earnings. She

 

is stigmatized in the competitive employment market because

 

of a work-related back injury which required major surgery

 

which left her with two fused vertebrae and plates and

 

screws in her back. The two biggest employers in her

 

community declined to consider her because of her back

 

injury. ***** This decision takes into consideration that

 

Dr. Ogilvie stated that a grade I spondylolisthesis, mildly

 

symptomatic, which hasn't been repaired by surgery is

 

entitled to a seven percent rating.

 

 

Wherefore, based upon (1) the foregoing factors; (2)

 

all of the factors used to determine industrial disability,

 

Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa

 

Industrial Commissioner Decisions 529 (Appeal Decision March

 

26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3

 

State of Iowa Industrial Commissioner Decisions 654, 658

 

(Appeal Decision February 28, 1985); and (3) applying agency

 

expertise [Iowa Administrative Procedure Act 17A.14(5)]; it

 

is determined that claimant has sustained a 35 percent

 

industrial disability to the body as a whole and is entitled

 

to 175 weeks of permanent partial disability benefits.

 

 

MEDICAL BENEFITS

 

 

It is determined that claimant is entitled to

 

$21,031.67 in medical benefits as shown in exhibit 2.

 

 

The parties stipulated that the fees charged for

 

medical services or supplies rendered are fair and

 

reasonable. They further stipulated that the expenses were

 

incurred for reasonable and necessary medical treatment.

 

 

Based upon claimant's testimony and other evidence of

 

record it is now determined that these expenses were caused

 

by the injury of February 5, 1988. Claimant's itemized

 

expenses are as follows:

 

 

TOTAL MEDICAL BILLS

 

 

 

Dickinson County Memorial Hospital $ 222.00

 

Back Care, Inc. 2,345.00

 

Iowa Lakes Orthopaedics 128.60

 

University of Minnesota Hospital and Clinic 10,165.75

 

University of Minnesota - Anesthesia 852.50

 

University of Minnesota - Surgeons 5,586.80

 

Dr. Roger D. Heimsensen 317.00

 

Moore Medical Service 710.50

 

Spirit Lake Medical Center 60.00

 

 

 

Page 9

 

 

 

 

 

Total Bills $20,388.15

 

Travel and related expenses 643.52

 

Total $21,0361.67

 

 

Claimant's testimony and evidence was not controverted,

 

contradicted, rebutted, refuted or disputed.

 

 

There is no evidence that these expenses were not

 

caused by the injury of February 5, 1988.

 

 

Wherefore, it is determined that claimant is entitled

 

to $21,031.67 in medical expenses as shown in exhibit 2.

 

 

CREDIT

 

 

The employer asserts a credit for the medical benefits

 

paid by the employee nonoccupational group health plan.

 

 

At one point in the transcript these are stated to be

 

$2,776.87 (tr. pp. 6 & 7). At another point in the

 

transcript the parties stipulated that the group carrier

 

paid an additional $10,835.75 (tr. p. 125). These two

 

amounts total $13,612.62.

 

 

Claimant concedes that the group carrier is entitled to

 

credit for what they have paid and that claimant is entitled

 

to be paid what they have not paid. Claimant's brief states

 

as follows, "Gardner and White should be reimbursed for the

 

expenditures they have made. Karla should be reimbursed for

 

her costs." (Cl. brief p. 6).

 

 

Wherefore, it is determined that claimant is entitled

 

to $21,031.67 in medical expenses, less any amounts which

 

have already been paid by defendants.

 

 

CONCLUSION OF LAW

 

The conclusions of law contained in the proposed agency

 

decision filed May 23, 1991 are adopted as final agency

 

action.

 

 

WHEREFORE, the decision of the deputy is affirmed.

 

 

ORDER

 

 

THEREFORE, it is ordered:

 

 

That defendants pay to claimant one week of healing

 

period benefits at the stipulated rate of two hundred

 

thirty-eight dollars ($238) per week in the total amount of

 

two hundred thirty-eight dollars ($238) for the period from

 

March 14, 1988 to March 21, 1988, commencing on March 21,

 

1988.

 

 

That defendants pay to claimant an additional

 

thirty-two point five seven one (32.571) weeks of healing

 

period benefits at the stipulated rate of two hundred

 

thirty-eight dollars ($238) in the total amount of Seven

 

thousand seven hundred fifty-one and 90/100 dollars

 

($7,751.90) for the period from October 17, 1988 through

 

June 1, 1989, commencing on October 17, 1988.

 

 

 

 

Page 10

 

 

 

 

 

That defendants pay to claimant one hundred

 

seventy-five (175) weeks of permanent partial disability

 

benefits at the rate of two hundred thirty-eight dollars

 

($238) per week in the total amount of forty-one thousand

 

six hundred fifty dollars ($41,650) commencing on June 2,

 

1989.

 

 

That all accrued benefits are to be paid in a lump sum.

 

 

That interest will accrue pursuant to Iowa Code section

 

85.30.

 

 

That defendants pay to claimant or the provider of

 

medical services twenty-one thousand thirty-one and 67/100

 

dollars ($21,031.67), less credit for thirteen thousand six

 

hundred twelve and 62/100 dollars ($13,612.62) paid by the

 

employees nonoccupational group health plan prior to

 

hearing.

 

That defendants shall pay the costs of this matter including

 

the transcription of the hearing.

 

 

That defendants file claim activity reports as

 

requested by this agency pursuant to rule 343 IAC 3.1.

 

Signed and filed this ____ day of March, 1993.

 

 

 

 

Page 11

 

 

 

 

 

 

 

 

________________________________

 

BYRON K. ORTON

 

INDUSTRIAL COMMISSIONER

 

 

Copies To:

 

 

Mr. Dick H. Montgomery

 

Attorney at Law

 

Professional Bldg.

 

PO Box 7038

 

Spencer, Iowa 51301

 

 

Mr. Frank T. Harrison

 

Mr. Matthew Grotnes

 

Attorneys at Law

 

2700 Grand Ave STE 111

 

Des Moines, Iowa 50312

 

 

 

 

 

 

 

 

 

 

 

 

 

 

5-1108.50 5-1401 5-1402.60

 

5-1802 5-2501 5-1803 5-2700

 

5-1701

 

Filed March 19, 1993

 

Byron K. Orton

 

WRM

 

 

BEFORE THE IOWA INDUSTRIAL COMMISSIONER

 

____________________________________________________________

 

 

KARLA A. GODDARD,

 

 

Claimant,

 

 

vs.

 

File No. 877509

 

DICKINSON CO. MEMORIAL HOSP.,

 

A P P E A L

 

Employer,

 

D E C I S I O N

 

and

 

 

EMPLOYERS MUTUAL COMPANIES,

 

 

Insurance Carrier,

 

Defendants.

 

____________________________________________________________

 

 

 

5-1108.50; 5-1401; 5-1402.60

 

The aggravation of claimant's spondylolisthesis was

 

determined to be the cause of claimant's temporary and

 

permanent disability.

 

 

5-1802

 

Claimant awarded healing period for the periods that could

 

be picked out of the evidence based on when a physician

 

confirmed that claimant was unable to work rather than

 

claimant's carefully prepared list of days and hours which

 

probably had some sound basis in fact.

 

 

5-1803

 

Claimant awarded 35 percent industrial disability.

 

Claimant was age 26 at the time of the injury, had a high

 

school education and completed two years of college to

 

become a qualified x-ray technician.

 

Claimant had L5 fused to S1 with a bone graft from her iliac

 

crest held in place by plates and screws. She lost 33 weeks

 

of work for recovery. Claimant went to work as soon as the

 

doctor released her.

 

Employer terminated claimant when her medical leave of

 

absence expired and rejected the appeal of claimant's

 

attorney not to terminated her. Claimant was released to

 

return to work only one month later.

 

 

 

 

 

 

 

 

 

 

 

 

 

Claimant's local doctor said she was foreclosed from x-ray

 

technician work. Her surgeon said she was prohibited from

 

doing the duties that an x-ray technician is required to do.

 

Claimant was earning $8.30 at the time of her injury and her

 

new job only paid $4.25. She had an approximate actual loss

 

of earnings of 50 percent.

 

Claimant's evaluator awarded 12 percent impairment.

 

Defendants' evaluator awarded 10 percent impairment.

 

Surgeon awarded 17.5 percent impairment based on Minnesota

 

workers' compensation standards. It was taken into

 

consideration that the surgeon stated that a nonoperated

 

spondylolisthesis was rated at seven percent impairment and

 

that this was probably the value of the preexisting

 

condition.

 

Claimant lost the time and money invested in two years of

 

college plus six years of actual experience as an x-ray

 

technician. Claimant was retrainable, but had not yet

 

sought any new training, but additional training would be

 

expensive.

 

The two largest employers in the community refused to hire

 

claimant because of her back injury.

 

 

5-2501; 5-2700; 5-1701

 

Claimant awarded $21,031.67 in medical expenses. Insurance

 

carrier had paid some (late-in-the-day) and did not pay

 

others. There was no explanation, excuse or defense offered

 

for the unpaid medical bills. Claimant conceded defendants

 

were entitled to a credit for the bills defendants had paid.

 

 

 

 

Page 1

 

 

 

 

 

 

before the iowa industrial commissioner

 

____________________________________________________________

 

:

 

KARLA A. GODDARD, :

 

:

 

Claimant, :

 

:

 

vs. :

 

: File No. 877509

 

DICKINSON CO. MEMORIAL HOSP., :

 

: A R B I T R A T I O N

 

Employer, :

 

: D E C I S I O N

 

and :

 

:

 

EMPLOYERS MUTUAL COMPANIES, :

 

:

 

Insurance Carrier, :

 

Defendants. :

 

___________________________________________________________

 

 

introduction

 

 

This is a proceeding in arbitration brought by Karla A.

 

Goddard, claimant, against Dickenson County Memorial

 

Hospital, employer and Employers Mutual Companies, insurance

 

carrier, defendants for benefits as the result of an injury

 

which occurred on February 5, 1988. A hearing was held at

 

Storm Lake, Iowa, on February 2, 1990, and the case was

 

fully submitted at the close of the hearing. Claimant was

 

represented by Dick H. Montgomery. Defendants were

 

represented by Frank T. Harrison and Matt Grotnes. The

 

record consists of the testimony of Karla A. Goddard,

 

claimant; Darwin R. Goddard, claimant's husband; claimant's

 

exhibits 1 through 11 and defendants' exhibits A and B. The

 

deputy ordered a transcript of the hearing. Both attorneys

 

submitted excellent posthearing briefs.

 

 

stipulations

 

 

The parties stipulated that claimant sustained an

 

injury on February 5, 1988, which arose out of and in the

 

course of employment with employer.

 

 

issues

 

 

The parties submitted the following issues for

 

determination at the time of the hearing:

 

 

Whether the injury was the cause of either temporary or

 

permanent disability.

 

 

Whether claimant is entitled to temporary or permanent

 

disability benefits, and if so, the extent of benefits to

 

which she is entitled.

 

 

Whether claimant is entitled to the payment of medical

 

expenses under Iowa Code section 85.27.

 

 

 

 

Page 2

 

 

 

 

 

Whether defendants are entitled to a credit for medical

 

expenses paid prior to hearing by employers' employee

 

nonoccupational group health plan.

 

 

findings of fact

 

 

causal connection-temporary disability-permanent disability

 

 

It is determined that the injury was the cause of both

 

temporary and permanent disability.

 

 

Brian W. Nelson, M.D., a board certified orthopedic

 

surgeon, who was claimant's treating physician in her home

 

community, testified that the injury was the cause of

 

claimant's subsequent treatment, surgery and disability

 

(claimant's exhibit 4, pages 13-15). Dr. Nelson further

 

clarified that the insurance company representative was

 

incorrect when she determined that this injury was not

 

related to claimant's employment simply because claimant had

 

a preexisting spondylolisthesis. Dr. Nelson stated, "I

 

think there was a relationship...I think I've said that

 

several times." (ex. 4, p. 20).

 

 

Dr. Nelson acknowledged that in his first office note,

 

dated February 8, 1988, he made the remark that it is

 

questionable whether this is workmens' compensation. He

 

explained that he made this remark because claimant

 

answered, "Iffy" in answer to this question in his intake

 

form. Claimant explained that she marked the intake form in

 

this fashion because she had never had a workers'

 

compensation claim before and she thought that it would have

 

to be an approved claim in order to state that it was a

 

workers' compensation claim. Dr. Nelson indicated that he

 

had cleared this up by his letter of July 7, 1988, to the

 

insurance claim representative in which he stated:

 

 

It is my opinion that she did have a new injury on

 

the 5th of February, 1988, after lifting a 2 year

 

old baby in the hospital. This injury was

 

super-imposed upon a preexisting Grade 1

 

spondylolisthesis. In my opinion, the fact that

 

the patient has this pre-existing

 

spondylolisthesis has contributed to the fact that

 

she had so much trouble recovering from this

 

injury. However, prior to this injury, she was

 

doing relatively well.

 

 

(claimant's exhibit 4, deposition exhibit 1, page 7).

 

 

Aggravation of a preexisting condition is a common form

 

of injury in the workers' compensation world. The employer

 

takes the employee as is and, therefore, takes him or her

 

subject to any active or dormant health impairment. Lawyer

 

and Higgs, Iowa Workers' Compensation--Law and Practice,

 

section 4-2, page 21.

 

 

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,

 

 

 

Page 3

 

 

 

 

 

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).

 

 

Dr. Nelson said that even though he said she was much

 

better after attending his back clinic on April 18, 1988,

 

and then was worse on August 12, 1988, there was not another

 

new injury, but rather just a gradual onset of symptoms as

 

she was doing her job at work (ex. 4, pp. 31-34). The

 

doctor clarified as follows:

 

 

I think the key thing for Karla here is that she

 

apparently, despite all of her problems with her

 

back, was functioning. There was a real

 

difference in her functioning before February and

 

after February. She had pain, but she was

 

performing her job and doing everything. She was

 

pushing the C-arm and seemed to be doing fairly

 

well. After February there seemed to be a real

 

deterioration in her ability to function.

 

 

...

 

 

She never went back and functioned fully....

 

 

(claimant's exhibit 4, pages 35 & 36).

 

 

Dr. Nelson stated on September 15, 1988:

 

 

RECOMMENDATIONS: 1) Although it is impossible to

 

say for sure, I do believe that within reasonable

 

medical certainty that the patient's symptoms now

 

are still part of the aggravation from her initial

 

injury approximately 7 months ago.

 

 

2) Because the pain is getting worse and is

 

now having unacceptable pain requiring narcotic

 

pain medications, I believe she will have to

 

consider surgery and, therefore, I have arranged

 

for her to be seen by Dr. James Ogilvie in

 

Minneapolis on the 21st of October, 1988. He is a

 

spine specialist. This patient may need a

 

decompression and fusion with plating.

 

 

3) In the meantime, the patient may continue

 

with light duty at work. She may do no heavy

 

lifting and she should no longer push the portable

 

x-ray machine as this seems to be very aggravating

 

to her pain.

 

 

4) I will plan on sending a copy of this to

 

her employers at the hospital and to her insurance

 

company. There seems to be some question as to

 

whether or not the company will pay for further

 

treatment. Although I certainly can not compel

 

them to pay, it does appear that in this case that

 

this whole symptom complex is related to the

 

 

 

Page 4

 

 

 

 

 

patient's activities at work and her injury of 7

 

months ago.

 

 

(claimant's exhibit 1, page 39)

 

 

James W. Ogilvie, M.D., a board certified orthopedic

 

surgeon and also a treating physician and operating surgeon,

 

testified that he is a faculty member at the University of

 

Minnesota Department of Orthopedic Surgery specializing in

 

spine surgery (ex. 3, p. 4). He performed a fusion of L5 to

 

S1 with the use of an internal fixation devise called Steffe

 

Instrumentation. The fusion was accomplished with a bone

 

taken from her right illiac crest for the bone graft (ex. 3,

 

p. 8; ex. 1, pp. 48 and 49). The radiology report for the

 

day following the surgery reported, "Steffe plates are in

 

place bilaterally at L5 and S1 with interpedicular screws in

 

place. There has also been a laminectomy at L5. There

 

appears to be good alignment with no spondylolisthesis.

 

Surgical drains are in place in the right pelvis." (ex. 1,

 

p. 50).

 

 

The spondylolisthesis was first diagnosed when claimant

 

was injured on May 27, 1983, lifting a patient on a toilet.

 

She lost no time from work and did not see a doctor, but did

 

receive physical therapy for a period of time at the

 

hospital (ex. 1, pp. 1-7 & 29). Claimant had a similar

 

flare-up at home on February 7, 1985, and it was treated

 

with physical therapy only without residual effect (ex. 1,

 

pp. 25 & 26).

 

 

Dr. Ogilvie testified that claimant's condition was the

 

direct result of the incident which occurred at work on

 

February 5, 1988 (ex. 3, p. 12). He explained:

 

 

She had persistent pain which was unresponsive to

 

conservative treatment. She certainly had her

 

spondylolisthesis prior to February of 1988. It

 

was symptomatic at times, but in the past had

 

always improved with a little bit of time and

 

minimal treatment. That was evidently not the

 

case with the incident in February of 1988.

 

 

(claimant's exhibit 3, page 12)

 

 

Dr. Ogilvie stated on March 3, 1989:

 

 

In response to the specific questions which you

 

have asked, it is very likely that the lifting

 

incident aggravated her symptoms and while it is

 

not possible in an absolute sense to document what

 

anatomic changes took place as a result of her

 

injury, it is well known that in adults, a

 

spondylolisthesis which was previously

 

asymptomatic or minimally symptomatic can become

 

permanently symptomatic with an injury.

 

 

(claimant's exhibit 1, page 58)

 

 

Dr. Ogilvie wrote to Dr. Nelson on October 21, 1988,

 

"Thank you for the opportunity of examining this 25 year-old

 

 

 

Page 5

 

 

 

 

 

caucasian female. As you know, since February of 1988, she

 

has had back and left extremity pain following a

 

work-related incident." (ex. 1, p. 47).

 

 

He stated that the surgery was caused by the incident

 

of February 5, 1988, (ex. 3, p. 13). He stated that she has

 

suffered a permanent functional and physical impairment (ex.

 

3, p. 14). He related that in the state of Minnesota it

 

would be rated as 17.5 percent functional disability to the

 

body as a whole (ex. 3, p. 15). He believed that claimant

 

had significant symptoms from the date of the injury,

 

February 5, 1988, until she saw him on October 21, 1988 (ex.

 

3, pp. 23 & 24).

 

 

Defendants' suggestion that claimant might have been

 

injured while taking chiropractic treatment from Roger

 

Heimensen, D.C, between April and September of 1988, is not

 

supported by any evidence of any kind (ex. 1, pp. 68-74).

 

 

Wherefore, it is determined that the injury of February

 

5, 1988, was the cause of temporary and permanent

 

disability.

 

 

entitlement-temporary disability

 

 

Claimant is entitled to 33.571 weeks of healing period

 

benefits.

 

 

The parties stipulated that claimant is entitled to

 

healing period benefits from November 1, 1988 through June

 

1, 1989. In addition, however, claimant is asserting

 

additional days of time lost from work due to this injury.

 

In support of that claim, she has prepared an itemized list

 

of days and hours lost from work due to the injury which

 

totals 34.78 weeks (ex. 11). Claimant's list appears to be

 

very carefully prepared and probably has a substantial basis

 

in fact, however, it is customary for temporary disability

 

benefits to be supported by confirmation from the treating

 

physician(s).

 

 

In this case, it can be verified that Dr. Nelson took

 

claimant off work from March 14, 1988 to March 21, 1988, a

 

period of one week (ex. 1, p. 41). He then took claimant

 

off work again for one week from October 17, 1988 to October

 

24, 1988 (ex, 1, p. 40; ex. 4, p. 13), however, during this

 

week she saw Dr. Ogilvie on October 21, 1988, and he

 

continued to keep her off work from that date through June

 

1, 1989 (ex. 3, pp. 16 & 17; ex. 1, p. 46). The period of

 

time from October 17, 1988 through June 1, 1989, is 32.571

 

weeks. The total time off work for which claimant is

 

entitled to healing period benefits is 33.571 weeks (one

 

week plus 32.571 weeks).

 

 

Claimant was evaluated by Peter D. Wirtz, M.D., on

 

September 30, 1989. Dr. Wirtz stated:

 

 

Based on her history and resolution of the

 

symptoms by April 18, 1988 note, it would by my

 

opinion that the condition that occurred on 2/5/88

 

was temporary in nature and had cleared by the

 

 

 

Page 6

 

 

 

 

 

4/18/88 examination. Recurrent symptoms 9/12/88

 

note would indicate new etiology of muscular

 

symptoms as would be expected with this condition

 

which with natural progression requires surgical

 

intervention in those that are repeatedly and

 

chronically symptomatic.

 

 

(defendants' exhibit A, p. 2)

 

 

The testimonies of Dr. Nelson and Dr. Ogilvie are found

 

to be more reliable and accurate than the testimony of Dr.

 

Wirtz. Rockwell Graphics Systems, Inc. v. Prince, 366

 

N.W.2d 187, 192 (Iowa 1985).

 

 

entitlement-permanent disability

 

 

It is determined that claimant has sustained a 35

 

percent industrial disability to the body as a whole and is

 

entitled to 175 weeks of permanent partial disability

 

benefits as industrial disability.

 

 

The parties stipulated that the type of permanent

 

disability is industrial disability.

 

 

Claimant, born January 10, 1962, was 26 years old at

 

the time of the injury and 28 years old at the time of the

 

hearing and 29 years old at the time of this decision.

 

Because of her young age, intelligence, and adaptability,

 

her loss of earning capacity is less significant than it

 

would be for a person in their middle working years near the

 

peak of their earnings career. Becke v. Turner-Busch, Inc.,

 

Thirty-fourth Biennial Report of the Industrial Commissioner

 

34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II

 

Iowa Industrial Commissioner Report 426 (1981); McCoy v.

 

Donaldson Company, Inc., IAWC Decisions of the Iowa

 

Industrial Commissioner 400 (1989).

 

 

Claimant is a high school graduate and attended the

 

University of Iowa for two years and graduated from the

 

course in x-ray technology. She started to work immediately

 

for employer on July 6, 1982, as an x-ray technician (tr. p.

 

24).

 

 

Peter D. Wirtz, M.D., an orthopedic surgeon, evaluated

 

claimant for defendants and determined that claimant had a

 

10 percent impairment to the body as a whole (ex. A, p. 3).

 

Dr. Wirtz added, "This condition of spine fusion leads to

 

symptoms of back pain with excessive activities or motions

 

such as bending, twisting, lifting, pushing and pulling

 

activities." (ex. A, p. 3).

 

 

Jay Michael Donohue, M.D., claimant's evaluator,

 

determined that claimant had a 12 percent permanent

 

impairment to the body as a whole based upon the AMA

 

guidelines, edition three (ex. 1, p. 45).

 

 

Dr. Ogilvie described claimant's impairment as follows,

 

"A physical impairment with respect to Mrs. Goddard's low

 

back condition, according to Minnesota Statutes, is 7% for

 

grade I spondylolisthesis which is only mildly symptomatic.

 

 

 

Page 7

 

 

 

 

 

If those symptoms increased to the level where surgery is

 

required, the impairment is 17.5%." (ex. 1, p. 58).

 

 

Although Dr. Nelson did not give a formal rating as

 

such, he did indicate in his deposition testimony that

 

claimant probably should not return to the x-ray department

 

no matter what happened to her (ex. 4, p. 13). Dr. Nelson

 

further described the residual effects of her operation as

 

follows:

 

 

She'll have a permanent disability. She underwent

 

a very large spinal operation. There are all

 

degrees of spinal operations. And the one that

 

she underwent was a relatively large one. She now

 

has plates and screws in her back. And she's

 

going to have to take it easy on her back and

 

protect herself for the rest of her life. And so

 

anybody undergoing an operation of that magnitude,

 

even if they have a perfect result and are

 

painfree, in my mind has a permanent impairment

 

just because you've now permanently altered her

 

anatomy.

 

 

(exhibit 4, page 15).

 

 

In his deposition, Dr. Ogilvie repeated his 17.5

 

percent functional impairment rating (ex. 3, p. 15). He

 

added, "I think it would be unwise for her to return to a

 

job that required repetitive heavy lifting or lifting with

 

poor body mechanics." (ex. 3, p. 16).

 

 

Claimant described her job as one which required a

 

great deal of vigorous work moving heavy portable x-ray

 

machines all over the hospital and lifting and moving

 

patients from sometimes awkward positions. Dr. Nelson

 

thought that she should not return to x-ray technician work

 

under any circumstances. Dr. Ogilvie stated she should not

 

do work which required repeated heavy lifting or heavy

 

lifting with poor body mechanics. The x-ray technician job

 

requires heavy lifting and heavy lifting with poor body

 

mechanics.

 

 

Therefore, claimant is foreclosed from the job that she

 

was trained to do. She devoted two years of her life at the

 

University of Iowa plus the tuition, books and fees and

 

other college expenses to become a qualified x-ray

 

technician. She acquired approximately six years of working

 

experience as an x-ray technician. Due to this injury she

 

is foreclosed from performing that work. Michael v.

 

Harrison County, Thirty-fourth Biennial Report of the

 

Industrial Commissioner 218, 220 (Appeal Decision January

 

30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa

 

Industrial Commissioner Report 282 (1984).

 

 

Retraining is one of the considerations in determining

 

industrial disability. Claimant is clearly retrainable, but

 

retraining in college or at an area community college or

 

business school, would be an expensive proposition for

 

claimant. Conrad v. Marquette School, Inc., IV Iowa

 

Industrial Commissioner Report 74, 89 (1984).

 

 

 

Page 8

 

 

 

 

 

 

Claimant testified that she was earning $8.30 per hour

 

when she was terminated by employer on May 1, 1989, when her

 

medical leave of absence expired (ex. 8). Employer refused

 

to honor claimant's request through her attorney that she

 

not be terminated because the doctor had not released her to

 

work. She was released June 1, 1989 (ex. 10). At the time

 

of the hearing, claimant was earning $4.25 per hour working

 

in a printing factory. With employer she had several

 

employee benefits, such as, health insurance, three weeks

 

vacation, sick leave, group life insurance and pension

 

benefits with the Iowa Public Employees Retirement System.

 

With her current employer, she only has one week of vacation

 

and a much higher deductible on her health insurance. She

 

was turned down for work at two of the localitie's most

 

prolific employers because of the fact that she had a back

 

injury (tr. pp. 55-58).

 

 

Claimant was motivated to work and returned to

 

employment as soon as she was released to work by Dr.

 

Ogilvie.

 

 

Claimant, previously a very athletic person, is limited

 

in her ability to dance, play volleyball, ride horseback,

 

water ski, and jog. She can no longer ride her 10-speed

 

bike because she cannot bend over in the position required

 

to ride that bicycle (tr. p. 63).

 

 

In summary then, claimant is a female in her late 20's

 

with a high school education and two years invested in the

 

x-ray technician course at the University of Iowa and six

 

years of work experience which she is foreclosed from using.

 

She has a physical and functional impairment to the body as

 

a whole somewhere between 10 and 17.5 percent. In addition,

 

she has sustained a 50 percent actual loss of earnings. She

 

is stigmatized in the competitive employment market because

 

of a work-related back injury which required major surgery

 

which left her with two fused vertebrae and plates and

 

screws in her back. The two biggest employers in her

 

community declined to consider her because of her back

 

injury. The fact that claimant was forced to prosecute a

 

litigated workers' compensation claim in order to recover

 

for her injury will not facilitate her employability. This

 

decision takes into consideration that Dr. Ogilvie stated

 

that a grade I spondylolisthesis, mildly symptomatic, which

 

hasn't been repaired by surgery is entitled to a 7 percent

 

rating.

 

 

Wherefore, based upon (1) the foregoing factors; (2)

 

all of the factors used to determine industrial disability,

 

Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa

 

Industrial Commissioner Decisions 529 (Appeal Decision March

 

26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3

 

State of Iowa Industrial Commissioner Decisions 654, 658

 

(Appeal Decision February 28, 1985); and (3) applying agency

 

expertise [Iowa Administrative Procedure Act 17A.14(5)]; it

 

is determined that claimant has sustained a 35 percent

 

industrial disability to the body as a whole and is entitled

 

to 175 weeks of permanent partial disability benefits.

 

 

 

 

Page 9

 

 

 

 

 

medical benefits

 

 

It is determined that claimant is entitled to

 

$21,031.67 in medical benefits as shown in exhibit 2.

 

 

The parties stipulated that the fees charged for

 

medical services or supplies rendered are fair and

 

reasonable. They further stipulated that the expenses were

 

incurred for reasonable and necessary medical treatment.

 

 

Based upon claimant's testimony and other evidence of

 

record it is now determined that these expenses were caused

 

by the injury of February 5, 1988. Claimant's itemized

 

expenses are as follows:

 

 

TOTAL MEDICAL BILLS

 

 

 

Dickinson County Memorial Hospital $ 222.00

 

Back Care, Inc. 2,345.00

 

Iowa Lakes Orthopaedics 128.60

 

University of Minnesota Hospital and Clinic 10,165.75

 

University of Minnesota - Anesthesia 852.50

 

University of Minnesota - Surgeons 5,586.80

 

Dr. Roger D. Heimsensen 317.00

 

Moore Medical Service 710.50

 

Spirit Lake Medical Center 60.00

 

Total Bills $20,388.15

 

Travel and related expenses 643.52

 

Total $21,0361.67

 

 

Claimant's testiomony and evidence was not

 

controverted, contradicted, rebutted, refuted or disputed.

 

 

There is no evidence that these expenses were not

 

caused by the injury of February 5, 1988.

 

 

Wherefore, it is determined that claimant is entitled

 

to $21,031.67 in medical expenses as shown in exhibit 2.

 

 

credit

 

 

The employer asserts a credit for the medical benefits

 

paid by the employee nonoccupational group health plan.

 

 

At one point in the transcript these are stated to be

 

$2,776.87 (tr. pp. 6 & 7). At another point in the

 

transcript the parties stipulated that the group carrier

 

paid an additional $10,835.75 (tr. p. 125). These two

 

amounts total $13,612.62.

 

 

Claimant concedes that the group carrier is entitled to

 

credit for what they have paid and that claimant is entitled

 

to be paid what they have not paid. Claimant's brief states

 

as follows, "Gardner and White should be reimbursed for the

 

expenditures they have made. Karla should be reimbursed for

 

her costs." (cl. brief p. 6).

 

 

Wherefore, it is determined that claimant is entitled

 

to $21,031.67 in medical expenses, less any amounts which

 

 

 

Page 10

 

 

 

 

 

have already been paid by defendants.

 

 

conclusion of law

 

 

Wherefore, based upon the foregoing and following

 

principles of law this conclusion of law is made:

 

 

That the injury of February 5, 1988, was the cause of

 

temporary disability. Bodish v. Fischer, Inc., 257 Iowa

 

516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236

 

Iowa 296 18 N.W.2d 607 (1945).

 

 

That claimant is entitled to 33.571 weeks of healing

 

period benefits. Iowa Code section 85.34(1).

 

 

That the injury of February 5, 1988, was the cause of

 

permanent disability. Bodish, 257 Iowa 516, 133 N.W.2d 867;

 

Lindahl, 236 Iowa 296 18 N.W.2d 607.

 

 

That claimant sustained a 35 percent industrial

 

disability to the body as a whole and is entitled to 175

 

weeks of permanent partial disability benefits. Iowa Code

 

section 85.34(2)(u).

 

 

That the injury was the cause of claimant's medical

 

expenses. Bodish, 257 Iowa 516, 133 N.W.2d 867; Lindahl,

 

236 Iowa 296 18 N.W.2d 607.

 

 

That claimant is entitled to $21,031.67 in medical

 

expenses as itemized above under findings of fact.

 

 

 

Page 11

 

 

 

 

 

 

That defendants are entitled to a credit for the

 

$13,612.62 of medical expenses paid prior to hearing

 

pursuant to the stipulation of the parties on the record at

 

the time of hearing.

 

 

order

 

 

THEREFORE, IT IS ORDERED:

 

 

That defendants pay to claimant one week of healing

 

period benefits at the stipulated rate of two hundred

 

thirty-eight dollars ($238) per week in the total amount of

 

two hundred thirty-eight dollars ($238) for the period from

 

March 14, 1988 to March 21, 1988, commencing on March 21,

 

1988.

 

 

That defendants pay to claimant an additional

 

thirty-two point five seven one (32.571) weeks of healing

 

period benefits at the stipulated rate of two hundred

 

thirty-eight dollars ($238) in the total amount of Seven

 

thousand seven hundred fifty-one and 90/100 dollars

 

($7,751.90) for the period from October 17, 1988 through

 

June 1, 1989, commencing on October 17, 1988.

 

 

That defendants pay to claimant one hundred

 

seventy-five (175) weeks of permanent partial disability

 

benefits at the rate of two hundred thirty-eight dollars

 

($238) per week in the total amount of forty-one thousand

 

six hundred fifty dollars ($41,650) commencing on June 2,

 

1989.

 

 

That all accrued benefits are to be paid in a lump sum.

 

 

That interest will accrue pursuant to Iowa Code section

 

85.30.

 

 

That defendants pay to claimant or the provider of

 

medical services twenty-one thousand thirty-one and 67/100

 

dollars ($21,031.67), less credit for thirteen thousand six

 

hundred twelve and 62/100 dollars ($13,612.62) paid by the

 

employees nonoccupational group health plan prior to

 

hearing.

 

 

That the costs of this action, including the cost of

 

the attendance of the court reporter at hearing and the cost

 

of the transcript, are charged to defendants pursuant to

 

rule 343 IAC 4.33.

 

 

That defendants file claim activity reports as

 

requested by this agency pursuant to rule 343 IAC 3.1.

 

 

Signed and filed this ____ day of May, 1991.

 

 

 

 

______________________________

 

WALTER R. McMANUS, JR.

 

DEPUTY INDUSTRIAL COMMISSIONER

 

 

 

 

Page 12

 

 

 

 

 

Copies to:

 

 

Mr. Dick H. Montgomery

 

Attorney at Law

 

Professional Bldg.

 

PO Box 7038

 

Spencer, Iowa 51301

 

 

Mr. Frank T. Harrison

 

Mr. Matthew Grotnes

 

Attorneys at Law

 

2700 Grand Ave STE 111

 

Des Moines, Iowa 50312

 

 

 

 

Page 1

 

 

 

 

 

51108.50 51401 51402.60 51802

 

51803 52501 52700 51701

 

Filed May 23, 1991

 

Walter R. McManus, Jr.

 

 

before the iowa industrial

 

commissioner

 

____________________________________________________________

 

:

 

KARLA A. GODDARD, :

 

:

 

Claimant, :

 

:

 

vs. :

 

: File No. 877509

 

DICKINSON CO. MEMORIAL HOSP., :

 

: A R B I T R A T I O N

 

Employer, :

 

: D E C I S I O N

 

and :

 

:

 

EMPLOYERS MUTUAL COMPANIES, :

 

:

 

Insurance Carrier, :

 

Defendants. :

 

___________________________________________________________

 

 

51108.50 51401 51402.60

 

The aggravation of claimant's spondylolisthesis was

 

determined to be the cause of claimant's temporary and

 

permanent disability.

 

 

51802

 

Claimant awarded healing period for the periods that could

 

be picked out of the evidence based on when a physician

 

confirmed that claimant was unable to work rather than

 

claimant's carefully prepared list of days and hours which

 

probably had some sound basis in fact.

 

 

51803

 

Claimant awarded 35 percent industrial disability.

 

Claimant was age 26 at the time of the injury, had a high

 

school education and completed two years of college to

 

become a qualified x-ray technician.

 

Claimant had L5 fused to S1 with a bone graft from her iliac

 

crest held in place by plates and screws. She lost 33 weeks

 

of work for recovery. Claimant went to work as soon as the

 

doctor released her.

 

Employer terminated claimant when her medical leave of

 

absence expired and rejected the appeal of claimant's

 

attorney not to terminated her. Claimant was released to

 

return to work only one month later.

 

Claimant's local doctor said she was foreclosed from x-ray

 

 

 

Page 2

 

 

 

 

 

technician work. Her surgeon said she was prohibited from

 

doing the duties that an x-ray technician is required to do.

 

Claimant was earning $8.30 at the time of her injury and her

 

new job only paid $4.25. She had an approximate actual loss

 

of earnings of 50 percent.

 

Claimant's evaluator awarded 12 percent impairment.

 

Defendants' evaluator awarded 10 percent impairment.

 

Surgeon awarded 17.5 percent impairment based on Minnesota

 

workers' compensation standards. It was taken into

 

consideration that the surgeon stated that a nonoperated

 

spondylolisthesis was rated at 7 percent impairment and that

 

this was probably the value of the preexisting condition.

 

Claimant lost the time and money invested in two years of

 

college plus six years of actual experience as an x-ray

 

technician. Claimant was retrainable, but had not yet

 

sought any new training, but additional training would be

 

expensive.

 

The two largest employers in the community refused to hire

 

claimant because of her back injury. It was commented that

 

the fact claimant was forced to litigate a workers'

 

compensation claim, in order to recover, did not increase

 

her employability.

 

 

52501 52700 51701

 

Claimant awarded $21,031.67 in medical expenses. Insurance

 

carrier had paid some (late-in-the-day) and did not pay

 

others. There was no explanation, excuse or defense offered

 

for the unpaid medical bills. Claimant conceded defendants

 

were entitled to a credit for the bills defendants had paid.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

BEFORE THE IOWA INDUSTRIAL COMMISSIONER

 

 

 

JEFFREY S. LOY,

 

 

Claimant, File No. 877692

 

 

vs. A P P E A L

 

 

UNITED PARCEL SERVICE, D E C I S I O N

 

 

Employer, F I L E D

 

 

and SEP 29 1989

 

 

LIBERTY MUTUAL INSURANCE IOWA INDUSTRIAL COMMISSIONER

 

COMPANY,

 

 

Insurance Carrier,

 

Defendants.

 

 

 

STATEMENT OF THE CASE

 

 

Claimant appeals from a ruling of a deputy industrial

 

commissioner disapproving an application for medical

 

examination.

 

 

The record on appeal consists of the application for medical

 

examination. Claimant filed a written argument in support of

 

review of the ruling.

 

 

ISSUE

 

 

The issue on appeal is whether the deputy denied claimant's

 

application for an examination pursuant to Iowa Code section

 

85.39.

 

 

REVIEW OF THE EVIDENCE

 

 

On June 13, 1989 claimant filed an application for second

 

evaluation. Office notes of D. Dale Emerson, M.D., were attached

 

to the application. Dr. Emerson's office notes read in relevant

 

parts: "No knowledge of injury unless he has carpal tunnel

 

syndrome I don't know how it could be considered work related."

 

The application was resisted by the employer. The application

 

was disapproved by a deputy industrial commissioner on June 16,

 

1989.

 

 

APPLICABLE LAW

 

 

Iowa Code section 85.39 (1989) provides in relevant

 

part:

 

If an evaluation of permanent disability has been made

 

 

 

by a physician retained by the employer and the employee

 

believes this evaluation to be too low, the employee shall,

 

upon application to the commissioner and upon delivery of a

 

copy of the application to the employer and its insurance

 

carrier, be reimbursed by the employer the reasonable fee

 

for a subsequent examination by a physician of the

 

employee's own choice, and reasonably necessary

 

transportation expenses incurred for the examination. The

 

physician chosen by the employee has the right to confer

 

with and obtain from the employer-retained physician

 

sufficient history of the injury to make a proper

 

examination.

 

 

ANALYSIS

 

 

Iowa Code section 85.39, supra, requires an evaluation of

 

permanent disability by a physician retained by the employer.

 

The only medical report in this matter is from Dr. Emerson.

 

There is no evidence that Dr. Emerson has been retained by the

 

employer. The only medical report in this matter does not contain

 

an evaluation of permanent disability. Even if Dr. Emerson were

 

retained by the employer his medical report is not an evaluation

 

of permanent disability. Claimant has failed to prove the

 

necessary requirements for entitlement to an evaluation pursuant

 

to Iowa Code section 85.39.

 

 

FINDINGS OF FACT

 

 

1. On June 13, 1989 claimant filed an application for

 

second evaluation.

 

 

2. The evaluation contained office notes of D. Dale

 

Emerson, M.D.

 

 

3. It is unknown whether Dr. Emerson was retained by the

 

employer.

 

 

4. The office notes of Dr. Emerson are not an evaluation of

 

permanent disability.

 

 

5. There has been no evaluation of permanent disability.

 

 

CONCLUSION OF LAW

 

 

Claimant has not proved entitlement to reimbursement for an

 

evaluation of permanent disability by a physician of his choice.

 

 

WHEREFORE, the ruling of the deputy is affirmed.

 

 

ORDER

 

 

THEREFORE, it is ordered:

 

 

That claimant's application is denied.

 

 

 

 

Signed and filed this 29th day of September, 1989.

 

 

 

 

 

 

 

 

DAVID E. LINQUIST

 

INDUSTRIAL COMMISSIONER

 

 

Copy To:

 

 

Mr. H. Edwin Detlie

 

Attorney at Law

 

114 North Market Street

 

Ottumwa, Iowa 52501

 

 

United Parcel Service

 

Gateway Drive

 

Ottumwa, Iowa 52501

 

 

Liberty Mutual Ins. Company

 

P.O. Box 20335

 

Des Moines, Iowa 50306

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2502

 

Filed September 29, 1989

 

DAVID E. LINQUIST

 

 

BEFORE THE IOWA INDUSTRIAL COMMISSIONER

 

 

 

JEFFREY S. LOY,

 

 

Claimant,

 

 

vs.

 

File No. 877692

 

UNITED PARCEL SERVICE,

 

A P P E A L

 

Employer,

 

D E C I S I 0 N

 

and

 

 

LIBERTY MUTUAL INSURANCE

 

COMPANY,

 

 

Insurance Carrier,

 

Defendants.

 

 

 

2502

 

 

On appeal deputy's disapproval of an application for medical

 

examination was upheld. The doctor's office notes attached to

 

the application did not constitute an evaluation of permanent

 

disability. Also, there was no evidence that the doctor had been

 

retained by the employer.