BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHARLES STRANATHAN, File No. 878747 Claimant, D E C I S I O N vs. O N CEI TRUCK & AG EQUIPMENT, M E D I C A L Employer, B E N E F I T S and THE TRAVELERS COMPANIES, F I L E D Insurance Carrier APR 18 1990 Defendants. IOWA INDUSTRIAL COMMISSIONER INTRODUCTION This is a proceeding for medical benefits under Iowa Code section 85.27 brought by the claimant, Charles Stranathan, against CEI Truck & AG Equipment, employer, and The Travelers Companies, insurance carrier, defendants, to recover medical benefits as a result of an injury sustained on March 10, 1988. This matter came on for hearing before the deputy industrial commissioner in Des Moines, Iowa, on March 28, 1990. The record consists of the testimony of the claimant's widow, Faye Stranathan, claimant's exhibits 1 and 2, and defendant employers' exhibits 1 through 9. ISSUES The sole issue in this case is whether alternate care was necessary and its reasonableness. In other words, are defendants responsible for the cost of a Kin-Air bed versus a water mattress or gel foam mattress, the difference in cost being $7,501.20 per month. REVIEW OF THE EVIDENCE Faye Stranathan, claimant's surviving widow, testified her husband, the claimant, died March 8, 1990 after having been in a coma since his work injury on March 10 1988. Mrs. Stranathan described the Kin-Air bed used part of the time by claimant while in the hospital. Claimant said it was run by a computer. She said it let air in one side and out the other and changed with body movements. Mrs. Stranathan emphasized that the bed did move by itself notwithstanding Dr. VanGilder's contention the bed didn't move. She said that from May 1988 until the fall 1989, she was never told by defendant insurance company or defendant employer that they were objecting to the Kin-Air bed.. She acknowledged that defendant insurance company desired to move claimant to a nursing home, but they decided not to when they found out the cost was about the same. Mrs. Stranathan said the defendant insurance company representative, Mary Jo Ragaller, told her April 4, 1988 that they would pay claimant's medical expenses the rest of claimant's life. Mrs. Stranathan said no other contact was made as to not paying the medical bills so claimant was left in the Kin-Air bed. Mrs. Stranathan said that when she heard later that the insurance company wasn't going to pay, she contacted her attorney and took immediate action leading to this court hearing. Mrs. Stranathan related the difficult life and death decisions she had to make. She did not want claimant on a respirator. She said she did not make the decision as to the type of care regarding preventing infection. She stated Mercy Hospital said claimant should stay with the Kin-Air bed to prevent skin problems. Mrs. Stranathan said the hospital feared a skin breakdown would occur with the other traditional types of beds and then they would also have to fight that condition. Mrs. Stranathan said there had been one incident of skin breakdown when claimant was on another type of bed. Mrs. Stranathan then acknowledged that claimant died of pulmonary embolism and not a skin breakdown problem. Mrs. Stranathan acknowledged she was present when claimant was taken to Iowa City in March 1989. She said she understood and saw Dr. VanGilder's letter indicating claimant's skin maintenance could be provided by a water or gel foam mattress. Claimant acknowledged Mary Jo Ragaller, defendant insurance representative, was investigating the possibility of taking claimant off the Kin-Air bed and putting him on a water or gel bed. Mrs. Stranathan insisted she was never told they were taking claimant off the Kin-Air bed. Mrs. Stranathan related that Mary Jo Ragaller was trying to move claimant to Americana Nursing Home but discovered the Kin-Air bed could not be moved there. She recalled that it was in January 1989 that Mary Jo first mentioned alternate care. In other words, a bed other than the Kin-Air and the possibility of moving claimant to Americana Nursing Home. Richard D. Rethorst, M.D., testified through his deposition on March 1, 1990, that he first started seeing claimant in May 1988 at which time the claimant was comatose. He said claimant was transferred from University of Iowa Hospitals to Mercy Hospital in Cedar Rapids because claimant's acute care was over and he was entering long-term care at the hospital's skilled nursing facility. He said claimant originally was in a Clinitron bed. He described a Clinitron bed as a type of bed that is used to limit the amount of pressure placed on the skin which hopefully prevents any skin irritation because of claimant's vegetable state. He said claimant was on this bed from the date of his admission May 26, 1989 until August 1989, at which time the claimant was placed on a Kin-Air bed. The doctor said the beds are basically the same, operating on an air system. He said there are no mechanical or pneumatic pressure movements. Dr. Rethorst said he has been rather surprised by the excellent results he has had and they have been able to maintain good quality skin throughout claimant's admission. The doctor was asked about the gel foam and waterbed mattress. He said the main difference between these and the Kin-Air is the amount of pressure on the skin. He said the gel foam and waterbed involve a greater amount of pressure on the skin. The doctor emphasized he never has used the gel foam or soft-care mattress for comatose or semi-comatose patients. Dr. Rethorst opined claimant should not be moved straight to a water-type mattress or gel foam mattress. He further opined that if claimant were moved, claimant would suffer skin irritations as a result of the higher pressure with that type of bed. Dr. Rethorst stated: [S]kin breakdown would cause loss of protein in this debilitated patient which can have dire consequences in itself -- edema, fluid congestion in the lungs, et cetera, as well as a route of infection into his body and bloodstream. (Claimant's Exhibit 1, p. 20) He said this could be life threatening to claimant. The doctor stated his opinion in an abbreviated form is also expressed in a letter he wrote (Cl. Ex. 2). The doctor acknowledged that he believed claimant will never regain consciousness again and will never experience meaningful life at any time hereafter. He said claimant has not demonstrated any voluntary movements. Dr. Rethorst said that in literature he had read, a skin pressure below 32 mm. does not produce skin breakdown. He said the Kin-Air produces below 32 mm. and that the waterbed and foam gel mattress produced levels above that. He said the Clinitron bed produces below 32 mm. pressure. John C. VanGilder, M.D., a neurologist, testified by way of deposition on February 27, 1989 that he is a physician at the University of Iowa Hospitals and Clinics." He saw claimant on March 30, 1987, pursuant to claimant having suffered a missile injury to the brain. Claimant was comatose at that time. He said he did not prescribe any particular care, especially skin care, that claimant should have when he was sent from the University of Iowa Hospitals to Mercy Hospital in Cedar Rapids. He said claimant was in a Biodyne bed in the University of Iowa Hospitals, which bed is to prevent skin breakdown. Dr. VanGilder was referred to a September 21, 1989 letter of Mary Jo Ragaller and his October 23, 1989 reply to her. He indicated in the letter that claimant could be adequately cared for by a waterbed or a gel foam mattress. He said he did not think "an air bed would be particularly superior to a waterbed mattress or gel foam mattress. They all accomplish essentially the same thing in just different media." (VanGilder Deposition, Employer's Exhibit 4, page 15) The doctor could not specifically answer why claimant was in a Biodyne bed at the University of Iowa Hospitals rather than a waterbed or gel foam bed. He conjectured they probably used whatever they had available at the time. He did not think one bed had any advantage over the other (Empl. Ex. 5, p. 18) APPLICABLE LAW AND ANALYSIS Iowa Code section 85.27 provides, in part: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. The employer shall also furnish reasonable and necessary crutches, artificial members and appliances but shall not be required to furnish more than one set of permanent prosthetic devices. .... Charges believed to be excessive or unnecessary may be referred to the industrial commissioner for determination, and the commissioner may, in connection therewith, utilize the procedures provided in sections 86.38 and 86.39 and conduct such inquiry as the commissioner shall deem necessary. Any institution or person rendering treatment to an employee whose injury is compensable under this section agrees to be bound by such charges as allowed by the industrial commissioner and shall not recover in law or equity any amount in excess of that set by the commissioner. For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of the necessity therefor, allow and order other care. In an emergency, the employee may choose the employee's care at the employer's expense, provided the employer or the employer's agent cannot be reached immediately. The 85.27 issue herein is basically limited to whether defendants are responsible for providing claimant with a Kin-Air bed versus a waterbed or gel foam mattress, the difference in cost being $7,501.20 per month. It appears claimant has been using the Kin-Air bed since August 1989 until his death, March 8, 1990. Defendants contend they should not be responsible for the $7,501.20 per month for these approximately 20 months. Claimant contends she did not know that defendants were not going to pay for the Kin-Air bed until January 1990, at which time she contacted her attorney. This date corresponds to a motion for temporary injunction filed in the industrial commissioner's office, of which file the undersigned takes official notice. This pleading led to the early setting of this matter for hearing. Of course, no one knew claimant was going to die as soon as he did. Defendants sent a letter to claimant's attorney and Mercy Hospital on March 5, 1990 indicating they were not going to pay the January 1990 amount of $7,501.20, which represents the monthly cost of the Kin-Air bed (Empl. Ex. 5). It appears defendants paid all the bills prior to this January 1990 bill involving the Kin-Air bed. Payment is not an admission of liability. There is no question of liability in this case. The employer appeared to first raise this issue of the Kin-Air bed in January 1989. Mary Jo Ragaller, defendant insurance company's representative, and a nurse, was going to investigate alternative care. Apparently, the placing of claimant in a nursing home was looked into but the costs were similar. The greater weight of evidence shows there was no indication that defendants were, in fact, not going to pay the Kin-Air bed until January 1990. Claimant was relying on defendants' original assurance in 1988 that defendants were going to pay for claimant's medical care for the rest of his life. Obviously, claimant's wife would have taken action herself earlier had she known defendants were contending retroactively that the Kin-Air bed was not necessary and reasonable and, therefore, expected claimant to pay the $7,501.20 per month. At that time, in January 1990, the then disputed amount was approximately $127,517 (17 months times $7,501.20). Claimant, in early 1989, had already made other serious and emotional decisions as to prolonging or not prolonging claimant's life with certain other medical means. It is obvious she could not and would not have afforded the Kin-Air bed on her own. Claimant had a right to rely on the statement and good faith of the defendants. Claimant did not and was not the one who chose this care. Claimant's wife did not choose the care. The care was provided by defendants and 20 months later they took definitive action to change their choice of care regarding the Kin-Air bed. Although the defendants did not specifically specify a particular bed, they had the opportunity to raise the issue when claimant was transferred to Mercy Hospital in Cedar Rapids. Instead they continued to pay the bills. It is clear and convincing that defendants thought that claimant would lie in his comatose state for a lengthy undetermined period of time and decided in January 1990 that the $7,501.20 a month under the circumstances was too much. There was obviously no hope claimant would ever regain consciousness. Iowa Code section 85.27 is usually raised in this instance by the employee who objects to the nature of the care chosen and provided by the employer to the employee and thereby seeks alternate care. In this instant case, the employee or his agent, claimant's wife, is satisfied and the employer decides to change its originally chose care for claimant. There is medical testimony as to the effectiveness of certain beds to prevent skin deterioration which could, itself, lead to death. It is undisputed that one's skin must be maintained or often death threatening sickness or disease can set in. There is no dispute that Kin-Air or like beds provide the best means of protecting the skin. There is a dispute as to whether substantially less expensive beds can accomplish the same thing. Claimant was in a Biodyne bed at the University of Iowa Hospitals while under the care of Dr. VanGilder, upon whose testimony defendants rest as to the need or lack of need of a Kin-Air bed. When claimant was transferred to Mercy Hospital in Cedar Rapids, claimant was placed in a Clinitron bed for two months and then thereafter until his death was placed in a Kin-Air bed, which beds are basically similar to the Biodyne bed. These beds have a similar goal. It appears the Kin-Air is one of the best state of the art beds to prevent skin pressure. Dr. VanGilder dismissed the University of Iowa's use of the Biodyne bed for claimant versus the waterbed or gel foam mattress as if it were the luck of the draw. In other words, they use whatever is available. The undersigned questions this. The fact is, claimant was transferred to a bed at Mercy Hospital as close to or similar to the bed claimant had at the University of Iowa Hospitals. Defendants were still choosing and controlling claimant's care. The undersigned believes there is no reason to further dwell on the facts of medical evidence. The evidence is convincing that defendants are responsible for the medical bills of claimant, including paying for the use of the Kin-Air bed. The bed appears necessary and the cost reasonable under the circumstances. Defendants have chosen the care all along. The undisputed work injury led to claimant's early death. The undersigned is surprised considering all the evidence and circumstances of this case, that it came on for hearing. FINDINGS OF FACT 1. The defendants chose the care and treatment for the claimant throughout claimant's illness and injury. 2. The Kin-Air bed is one of the best for preventing deterioration of the skin in a person who is comatose and unable to shift himself voluntarily. 3. The Kin-Air bed was a necessary and reasonable use of medical equipment in the prevention of claimant's skin deterioration, which deterioration itself could lead to death threatening conditions if not prevented or maintained. 4. Defendants are responsible for all of claimant's medical bills, including providing for and paying for the Kin-Air bed. Claimant died March 8, 1990. 5. Defendants first officially notified claimant that they were no longer paying for the Kin-Air bed by letter in January 1990, approximately 20 months after claimant started using the Kin-Air bed with the knowledge of defendants who were choosing and had control of claimant's care. CONCLUSIONS OF LAW Defendants are responsible for payment of claimant's medical bills, including the cost of the Kin-Air bed under the provisions of Iowa Code section 85.27. Defendants chose claimant's care which involved the use of the Kin-Air bed, under the provisions of Iowa Code section 85.27. Defendants continued to control claimant's care from the beginning of claimant's injury on March 10, 1988 until the date of claimant's death, March 8, 1990. ORDER Defendants shall pay all of claimant's medical bills, including the cost of claimant's use of the Kin-Air bed. Defendants shall pay the costs of this action, pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 18th day of April, 1990. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Thomas D.Hobart Attorney at Law 122 S Linn Iowa City, IA 52240 Mr Raymond R Stefani Mr Steven A Stefani Attorneys at Law 200 American Bldg 101 2nd St SE Cedar Rapids, IA 52401 5-2500; 5-2700 Filed April 18, 1990 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHARLES STRANATHAN, File No. 878747 Claimant, vs. D E C I S I 0 N CEI TRUCK & AG EQUIPMENT, 0 N Employer, M E D I C A L and B E N E F I T S THE TRAVELERS COMPANIES, Insurance Carrier, Defendants. 5-2700; 5-2500 Held defendants are to pay for a Kin-Air bed costing $7,501.20 per month. Defendants chose care and after approximately 18 months, decided they were no longer going to pay and desired alternate care for claimant. There was no other issue. Claimant was in a comatose state from date of injury until his death 24 months later. A Kin-Air bed is a state of the art bed preventing minimum skin pressure on patient unable to move voluntarily. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ PATRICIA PARSONS, Claimant, File Nos. 1036183, 1036184 vs. and 878792 K MART, A R B I T R A T I O N Employer, D E C I S I O N and K MART SELF INS. PROGRAM, Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE These are proceedings in arbitration brought by the claimant, Patricia Parsons, against her self-insured employer, K Mart, to recover benefits under the Iowa Workers' Compensation Act as a result of injuries allegedly sustained on March 11, 1988, August 11, 1988 and January 9, 1993. This matter came on for hearing before the undersigned deputy industrial commissioner in Cedar Rapids, Iowa, on May 18, 1994. Claimant appeared in person and through her counsel. Defendants did not appear either through a personal representative or through counsel. A first report of injury has been filed relative to the March 11, 1988 claimed date of injury. First reports of injury have not been filed relative to the August 11, 1988 and January 9, 1993 claimed dates of injury. The record consists of the testimony of claimant and of claimant's exhibits A through H. ISSUES Issues to be decided are: 1. Whether an employer-employee relationship existed between claimant and K Mart on the alleged injury date; 2. Whether claimant did receive injuries arising out of and in the course of her employment on the alleged injury dates; 3. Whether a causal relationship exists between the claimed injuries and claimed disability; 4. The nature and extent of any temporary or permanent disability entitlement; 5. Whether claimant is entitled to payment of certain medical expenses under section 85.27; 6. Claimant's appropriate rate or rates of weekly compensation. FINDINGS OF FACT The deputy, having heard the testimony and considered the evidence, finds: Claimant is a 46-year-old woman who remains employed at K Mart, now as a customer checker. She has completed ninth grade and obtained a GED in 1993. She has also completed a short course in electrolysis and has previous employment history in factory assembly, waitressing, and doing child care. Claimant has been married for 28 years and has three children, the youngest of whom is now 19. This child was a dependent of claimant's on all claimed injury dates. It is expressly found that claimant was married and entitled to three exemptions on claimed injury dates. On March 11, 1988, claimant worked 24 hours per week with K Mart at an hourly wage of $5.25. It is expressly found that claimant then had a gross weekly wage of $126 which resulted in a weekly compensation rate of $92.03. Claimant worked as a filler on March 11, 1988. In this capacity she moved merchandise from the warehouse to the sales floor. Claimant reported feeling like her body, from her head to her toes, had fallen asleep while moving a flat-bed of pharmacy case packs that day. She subsequently fell at work. Claimant was then off work for two weeks and received benefits characterized as temporary total disability benefits. No permanent partial disability was then paid. On August 11, 1988, claimant was working 30 hours per week at a wage of $5.80 per hour. It is expressly found that claimant's gross weekly wage as of that date was $174 resulting in a weekly compensation rate of $125.18. On August 11, 1988, claimant had returned to work with K Mart working the late night crew. That job involved cleaning, painting, loading and unloading. Claimant stated that the weight she worked with varied with the merchandise with which she was dealing. Claimant began to experience severe back muscle spasms and had difficulty walking. On direction of the K Mart personnel department, claimant sought medical treatment with James W. Turner, M.D., an orthopedist, first seeing him on August 17, 1988. An MRI study of September 28, 1988 was characterized as essentially negative but for a very slight bulge at the L5-S1 disc space. Dr. Turner returned claimant to work on October 10, 1988 with a 20-pound lifting restriction. Claimant did receive temporary total disability benefits while off work subsequent to August 11, 1988 and medical costs with Dr. Turner were paid. On March 6, 1989, claimant presented at St. Luke's Hospital Emergency Room and Trauma Center with severe low back pain and spasms. She was admitted to the hospital and apparently treated with traction and bed rest until her discharge on March 13, 1989. On admission, claimant's straight leg raising was positive bilaterally. Claimant underwent a CAT scan of the lumbar spine on May 15, 1989. This was interpreted as showing a herniated disc at L4-L5 on the left. On May 25, 1989, Dr. Turner performed a partial hemilaminectomy with removal of extruded disc fragment at that interspace. Claimant subsequently underwent physical therapy and rehabilitation at the Work Injury Rehabilitation Center. The center's notes reflect that, on July 24, 1989, claimant was performing at a sedentary strength level. On July 27, 1989, Dr. Turner opined that claimant likely would have permanent partial impairment of 5 percent of the body as a whole. No further statement as to claimant's impairment is in evidence. On October 25, 1989, claimant presented to Dr. Turner complaining of aching discomfort across her low back without radiation into the legs. Both sitting and supine straight leg raising were negative. Dr. Turner then released claimant to return to work ten days later working 20 hours per week for two weeks and then increasing to full duty. On January 20, 1990, Dr. Turner, per claimant's request, indicated claimant should work a 20-hour week for six months for general conditioning. On June 20, 1990, Dr. Turner released claimant to return to work [apparently full duty] as of July 2, 1990 and released claimant from his care on a prn basis. Claimant was paid temporary total disability benefits to her return to work on October 25, 1989. She received no permanent partial disability benefits subsequent to the May 25, 1989 surgery. On January 9, 1993, claimant was working as a customer checker at K Mart. Claimant worked 24 hours per week and earned $6.95 per hour. It is expressly found that claimant then had a gross weekly wage of $166.80, resulting in a weekly rate of $122.54. On or about January 9, 1993, claimant was pushing a line of shopping carts. She also had been doing a lot of twisting and repetitive activities related to the increase in store activity during the holiday season. She reported having unbearable pain and spasms. K Mart personnel advised claimant to see Yang Ahn, M.D. He advised claimant to see Dr. Turner whom claimant saw on January 18, 1993. She then had positive straight leg raising on the left at 70 degrees and negative straight leg raising on the right at 90 degrees. Dr. Turner performed an epidural steroid injection on January 19, 1993. Dr. Turner released claimant to return to work on May 17, 1993; she returned to work on May 19, 1993. He stated she should work four hours per day and not lift greater than 25 to 30 pounds. He further stated that her permanent partial impairment was unchanged, apparently from the likely 5 percent impairment previously opined. It is expressly found that claimant's need for surgery in May 1989 and her need for an epidural steroid injection in January 1993 related to claimant's work activities at K Mart. Claimant received no temporary total or healing period benefits and received no payment for medical mileage incurred subsequent to the January 9, 1993 incident. Claimant had traveled 217 miles for treatment incurred after the January 9, 1993 incident. She has medical treatment costs as follows: Dr. Herring $ 364.64 IMC 427.00 Medicenter West 29.00 St. Luke's Hospital 529.65 Work Injury Rehabilitation Ctr. 4,177.35 $ 5,527.64 It is expressly found that claimant was an employee of K Mart on March 11, 1988, August 11, 1988 and January 9, 1988. It is expressly found that claimant did receive injuries that arose out of and in the course of her employment on March 11, 1988, August 11, 1988 and January 9, 1993. It is expressly found that the medical reports and opinions of Dr. Turner as well as claimant's consistent medical history are sufficient to establish that claimant's need for a partial hemilaminectomy on May 25, 1989 relates back to her work injuries with K Mart sustained on March 11, 1988 and August 11, 1988. It is expressly found that claimant has a 5 percent permanent partial impairment of the body as a whole as a result of her work injuries of March 11, 1988 and August 11, 1988 and her subsequent need for a partial hemilaminectomy. It is expressly found that claimant sustained a material temporary aggravation of her preexisting work related condition on or about January 9, 1993, which temporary aggravation produced a need for medical care including an epidural steroid injection and work injury rehabilitation the costs of which are defendants' liability. It is expressly found that defendants' are liable for costs incurred for medical mileage subsequent to the January 9, 1993 injury. It is expressly found that claimant has sustained no additional permanent partial impairment as a result of her temporary aggravation of her preexisting work-related condition on or about January 9, 1993. It is also expressly found that claimant did sustain a permanent disability which has affected her earnings capacity as a result of her March 11, 1988 and August 11, 1988 dates of injury. Claimant remains employed with K Mart. The employer appears to have accommodated claimant's restrictions by permitting her to work in check-out only. Claimant remains on an approximately 20 to 24 hour per week schedule. This is not inconsistent with claimant's schedule with K Mart prior to any of her injuries, however. Claimant apparently is not able to return to work either as a merchandise stocker or a night crew member. These jobs apparently involve lifting, twisting and turning which would be detrimental to her low back. Claimant's inability to return to those jobs within the employer's work force demonstrates that claimant has lost some actual job market access on account of her work injury. Hence, even though the employer has accommodated claimant and claimant is now earning $7.35 per hour, an amount greater than her earnings on any of her work injuries, claimant has suffered an actual industrial loss of earnings capacity on account of her permanent partial impairment related to her March 11, 1988 and August 11, 1988 work injuries. It is expressly found that that loss of actual earnings capacity is in the amount of 15 percent. Claimant's need for surgery and her subsequent permanent disability were not manifested until after her August 11, 1988 injury. Permanent partial disability benefits due claimant should be paid at the weekly rate for that date of injury. CONCLUSIONS OF LAW We consider the employee-employer question. Section 85.61 paragraph 11 provide in relevant part: 11. "Worker" or "employee" means a person who has entered into the employment of, or works under contract of service, express or implied, or apprenticeship, for an employer; ... Claimant has established that an employer-employee relationship existed between claimant and K Mart Corporation on March 11, 1988, August 11, 1988 and January 9, 1993. We next consider the arising out of and in the course of issues. The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). Claimant has established injuries arising out of and in the course of her employment with K Mart Corporation on March 11, 1988, August 11, 1988 and January 9, 1993. We consider the causation issues. The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially 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 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). Claimant has established that her injuries of March 11, 1988 and August 11, 1988 produced a need for hemilaminectomy and further produced a permanent partial impairment of 5 percent of the body as a whole as well as a permanent partial disability to claimant. Claimant has established that her injury of January 9, 1993 produced a material aggravation of her preexisting work-related conditions such that claimant needed a course of medical treatment and had a period of temporary total disability related to that injury. Claimant has not established that claimant has sustained any additional permanent disability on account of her January 9, 1993 work injury. We consider the industrial disability question. Since 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 Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (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, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Claimant has established a permanent partial disability to the body as a whole of 15 percent. We consider claimant's entitlement to healing period benefits. Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). Claimant has established that she is entitled to healing period benefits for those dates she was actually off work on account of her January 9, 1993 material aggravation of her preexisting work-related condition from January 9, 1993 to her return to work with K Mart on May 19, 1993. We next consider the question of claimant's entitlement to payment of medical costs incurred and medical mileage costs incurred relative to her January 9, 1993 material aggravation of her work-related condition. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). Claimant has established entitlement to medical costs incurred as a result of her January 9, 1993 incident as set forth in the above Findings of Fact and totaling $5,527.64. Claimant has established entitlement to payment for medical mileage of 217 at the reimbursement rate of 21 cents per mile, totalling $45.57. We consider the rate questions. Section 85.36 provides the following as regards basis of rate computation for an hourly worker: 6. In the case of an employee who is paid on a daily, or hourly basis, or by the output of the employee, the weekly earnings shall be computed by dividing by thirteen the earnings, not including overtime or premium pay, of said employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury. Claimant has established weekly rates of $92.03; $125.18; and $122.54 relative to her March 11, 1988, August 11, 1988, and January 9, 1993 work injuries, respectively. ORDER THEREFORE, IT IS ORDERED: Defendants pay claimant permanent partial disability benefits for seventy-five (75) weeks at the rate of one hundred twenty-five and 18/100 dollars ($125.18) with those payments to commence on the date claimant actually returned to work subsequent to her May 25, 1989 partial hemilaminectomy. Defendants pay claimant healing period benefits at the rate of one hundred twenty-two and 54/100 dollars ($122.54) for that period from January 9, 1993 to May 19, 1993, where claimant was actually off work on account of her material aggravation of her work-related condition on or about January 9, 1993. Defendants pay accrued amounts in a lump sum. Defendants pay interest pursuant to section 85.30. Defendants pay claimant mileage expenses in the amount of forty-five and 57/100 dollars ($45.57) and medical expenses in the amount of five thousand five hundred twenty-seven and 64/100 dollars ($5,527.64) all as set forth in the above Findings of Fact. Defendants pay costs pursuant to rule 343 IAC 4.33. Defendants file claim activity reports as the agency orders. Signed and filed this ____ day of August, 1994. ______________________________ HELENJEAN M. WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Matthew J. Petrzelka Attorney at Law 115 3rd Street, SE, Suite 1200 Cedar Rapids, IA 52401 K Mart 2727 16th ave. SW Cedar Rapids, IA 52404 K Mart 3100 W. Big Beaver Rd Troy, MI 48084 2900; 1108.50; 1801; 1803; 1806 Filed August 29, 1994 Helenjean M. Walleser BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ PATRICIA PARSONS, Claimant, File Nos. 1036183, 1036184 vs. and 878792 K MART, A R B I T R A T I O N Employer, D E C I S I O N and K MART SELF INS. PROGRAM, Insurance Carrier, Defendants. ___________________________________________________________ 2900; 1108.50; 1801; 1803; 1806 Defendants did not answer or otherwise appear despite claimant's having properly served them. All claimant's original notices and petitions were filed on March 11, 1993. Claimant testified she had received temporary total disability benefits as a result of March 11, 1988 and August 11, 1988 injury. First reports and claim activity reports were only in the file relative to the March 11, 1988 injury. That Form 2A would suggest that claimant's last payments on account of that injury occurred more than three years prior to March 11, 1983. Despite that, the deputy did not raise the issue of the statute of limitations on her own motion. Claimant found to have established permanent partial disability of 15 percent where claimant underwent a partial hemilaminectomy and excision of extruded disc material at L4/L5 on May 25, 1989. Claimant's condition manifested itself subsequent to the August 11, 1988 established work injury. The rate of compensation for permanent partial disability was found to be that of that date and not that of the March 11, 1988 established work injury date. Claimant found to have established a material temporary aggravation of her preexisting work-related condition on January 9, 1993, for which she required time off work and medical treatment and rehabilitative services. Claimant found entitled to temporary total disability benefits and payment of medical costs and medical mileage sustained as a result of that temporary aggravation. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MYRTLE CAREY, : : Claimant, : : vs. : : File No. 878836 CEDAR FALLS LUTHERAN HOME, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Myrtle Carey against Cedar Falls Lutheran Home, her former employer, and its insurance carrier, Liberty Mutual Insurance Company, based upon an injury that occurred on March 11, 1988. Claimant seeks compensation for healing period, permanent partial or permanent total disability, and payment of medical expenses. The primary issues to be determined are whether the injury is a proximate cause of any temporary or permanent disability; determination of the healing period claim; determination of the claim for permanent disability; and, determination of the medical expense entitlement. Defendants assert that the services provided by James E. Crouse, M.D., were unauthorized. The case was heard at Waterloo, Iowa on July 25, 1990. The evidence consists of testimony from Myrtle Carey, Charlotte Neilsen, joint exhibits A through E, and claimant's exhibits F-1 and F-2. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. Myrtle Carey is a 30-year-old married woman who graduated from high school in 1978, completed a two-week nurse's aide course in 1986 and has no other formal education. Her work history consists of work as a sales clerk, cashier in retail stores, laundry in a nursing home Page 2 and nurse's aide work in a nursing home. On March 11, 1988, Myrtle was working at the Cedar Falls Lutheran Home as a nurse's aide earning $4.65 per hour. While helping to lift a resident, she injured her back. Myrtle reported the incident to her supervisor. The day the incident occurred was a Friday. She was off work over the weekend and rested. On the following Monday, she reported to work and was sent to Sartori Memorial Hospital where the emergency room physician suspected that she had a herniated lumbar disc and referred her to orthopaedic surgeon Arnold E. Delbridge, M.D. (exhibit B-4, page 1). Dr. Delbridge employed conservative treatment, but claimant did not improve. Diagnostic tests showed a protruded lumbosacral disc on the right side of her spine (exhibit B-1, page 2; exhibit B-4, pages 9, 20 and 21). On April 25, 1988, claimant underwent automated percutaneous discectomy of the L5-S1 disc, which surgery was performed by Dr. Delbridge (exhibit B-1, page 2; exhibit B-4, page 14). Following the surgery, claimant showed some improvement. The records show that she fell and injured her leg in late May or early June. On July 29, 1988, Dr. Delbridge released claimant to return to work with a 40-pound lifting restriction. Claimant worked only one shift and then returned to Dr. Delbridge expressing complaints of increased symptoms. Claimant attributed the problem to being understaffed. Charlotte Neilsen, the assistant administrator for the employer, testified at hearing that there was no understaffing and that the company records failed to show claimant having made any complaint. Dr. Delbridge placed claimant into a two-week work hardening program (exhibit B-1, pages 3 and 7). On August 12, 1988, Dr. Delbridge again indicated that claimant could return to her previous job, but that she would need a gradual period of approximately four weeks where she had a lifting restriction and would not be required to lift a patient without assistance from another person. On August 23, 1988, he again indicated that claimant could return to work if the employer would protect her. He rated her as having an eight percent impairment of the body as a whole (exhibit B-1, page 4). Due to a lack of communication between the doctor and the employer, the actual release to return to work was not issued until September 12, 1988 (exhibit B-1, page 10). It is specifically found that it was medically indicated on August 23, 1988 that further significant improvement from claimant's injury was not anticipated. Claimant did not return to work with the employer and did not seek any other positions with the employer. She was scheduled to work on September 16 and 17, 1988. On the 16th, she phoned in and reported having car trouble. She Page 3 did not phone in on the 17th. The employer treated it as a voluntary resignation. The record of claimant's subsequent employment activities is somewhat confused. It appears as though in approximately August 1988, she accepted a job at the Monfort Pork Plant in Marshalltown, Iowa. She worked there for approximately four months and was earning $6.80 per hour at the time she left. She testified that she left due to having problems with her back as a result of the standing and twisting which she performed at that job. She worked briefly at a Hardee's Restaurant in Waterloo in approximately November 1988. In April 1990, she worked approximately two days at Jerome's Bakery in Waterloo for which she was paid $4.00 per hour. She stated that she had to lift 50 pounds in order to hold that job. Also in April of 1990, she worked one day and two hours of the next day at Cedar Falls Health Care Center as a nurse's aide. She left due to pain from handling patients. Claimant has applied for a number of positions as shown in exhibit E, pages 15 and 18. She felt that she would have been unable to perform several of those jobs, however (exhibit E, pages 19-22). Claimant enrolled in a medical secretary course at the Hawkeye Area Community College, but the class was full and she was unable to attend (exhibit E, pages 22 and 23). Claimant feels that her physical restrictions, as provided by Dr. Crouse, are that she avoid lifting more than 25 pounds and that she limit activities which require bending and stooping (exhibit E, page 29). In early 1989, Dr. Delbridge diagnosed claimant as having recurrence of her protruding L5-S1 disc. He reported that further surgery was indicated (exhibit B-1, pages 5 and 11). Claimant sought and received an independent medical evaluation from Dr. Crouse (exhibit F-1). Dr. Crouse agreed that the diagnostic tests which had been conducted showed a recurrent herniated disc, but he also stated that claimant's symptoms do not correspond to the abnormalities shown in that test. He did not recommend any further surgery. He did, however, opine that claimant had a 10 percent permanent impairment of the body as a whole due to the March 7, 1988 injury (exhibit B-2, page 2). Claimant has also been evaluated by M. Eyad Dughly, M.D., a neurologist, who could make no definite finding of a radiculopathy affecting the claimant. He found no significant objective neurological abnormalities, except for her complaints of tremendous pain (exhibit B-3, pages 1-3). Claimant has been evaluated by vocational consultant Lori Hackett. Hackett initially felt that claimant was highly motivated to find work, but as time passed, she began to note that claimant was not cooperating with the job Page 4 placement efforts (exhibit D). A review of the reports issued by Hackett shows that it is clearly Hackett's opinion that claimant could probably find a job if she made a diligent search. The reports also indicate that the job would likely pay somewhere in the range of $3.35 per hour to $5.50 per hour (exhibit D, pages 9 and 10). Claimant seeks to recover a number of medical expenses as summarized in exhibit C. Upon reviewing the bills and comparing them with the other records of medical treatment, it is found that the following charges and expenses were incurred for the purpose of treating the back injury which is the subject of this litigation. No reimbursement is awarded for those items where there are no supporting documents showing what actually occurred. The claimant's own testimony is insufficient to establish a causal connection. Covenant Medical Center 1-11-89 $ 969.00 Evansdale Chiropractic Clinic 4-2-88 120.00 Radiological Associates, P.C. 4-25-88 23.90 Radiological Associates, P.C. 1-11-89 200.65 James E. Crouse, M.D. 4-6-89 68.00 M. Eyad Dughly, M.D. 180.00 Total $1,561.55 Medical record and report fees are not an expense of treatment which can be recovered under Iowa Code section 85.27. With regard to Dr. Crouse, exhibits F-1 and F-2 do not indicate that the employer had authorized Dr. Crouse to do anything other than a second opinion evaluation. For that reason, the later charge from October 17, 1989 is disallowed. The failure of the defendants to object after the expense had been incurred is not probative. At no point in those letters is it suggested that Dr. Crouse become the authorized treating physician. There is nothing in the record to show that any services provided by Dr. Dughly subsequent to May 5, 1989 were connected with the back injury. The evidence in this case presents Myrtle Carey as a person with complaints which greatly exceed those normally expressed by individuals with a similar physical condition. Her complaints exceed the ratings of physical impairment and the other assessments made by the physicians. Claimant had worked in a number of different establishments prior to commencing employment with Cedar Falls Lutheran Home. She seems to be of at least average intelligence. She does not seem to be motivated to resume employment. Her list of job seeking inquiries is not persuasive in view of the long period of time she has been without employment. It is specifically found that her loss of earning capacity is not accurately reflected by her complete lack of employment. Page 5 She clearly is not totally disabled as a result of this injury. On the other hand, she does have a documented medical impairment and a basis for medically imposed activity restrictions which would render her incapable of performing the normal work of a nurse's aide, the field which has been her primary occupation for the last several years of her work life. Myrtle has lost access to that portion of the job market and to other portions of the job market which require substantial lifting, bending and twisting types of activities. Her work history has been in jobs which have paid at or slightly above the minimum wage level for the most part. It is expected that the jobs which she is still capable of obtaining and performing would provide a comparable rate of pay. Her loss of access to the job market is the primary factor responsible for her reduced earning capacity. When all the material factors are considered, it is determined that Myrtle Carey has experienced a 30 percent reduction of her earning capacity due to the March 11, 1988 injury. conclusions of law The injury which Myrtle Carey sustained while handling a patient on March 11, 1988 is a proximate cause of the disability which has and continues to afflict her in connection with her low back. Myrtle Carey is entitled to recover healing period compensation running from March 11, 1988 through August 23, 1988 in accordance with Iowa Code section 85.34(1). When Dr. Delbridge assigned his impairment rating, that act indicated that he did not expect further significant improvement. The healing period is 23 5/7 weeks. 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 Page 6 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. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. When all the material factors of industrial disability are considered, it is determined that claimant has a 30 percent permanent partial disability which, under the provisions of Iowa Code section 85.34(2)(u), entitles her to receive 150 weeks of compensation. Claimant is entitled to recover, under the provisions of Iowa Code section 85.27, the following medical expenses: Page 7 Covenant Medical Center 1-11-89 $ 969.00 Evansdale Chiropractic Clinic 4-2-88 120.00 Radiological Associates, P.C. 4-25-88 23.90 Radiological Associates, P.C. 1-11-89 200.65 James E. Crouse, M.D. 4-6-89 68.00 M. Eyad Dughly, M.D. 180.00 Total $1,561.55 The employer is not liable for the October 17, 1989 charges with Dr. Crouse as treatment by Dr. Crouse was not authorized. The other bills which claimant sought to recover have not been shown, by a preponderance of the evidence, to have been incurred for treatment of conditions resulting from the March 11, 1988 injury. The testimony of the claimant, in the absence of any medical corroboration from either the bills themselves or medical records, is insufficient to establish employer liability. order IT IS THEREFORE ORDERED that defendants pay Myrtle Carey twenty-three and five-sevenths (23 5/7) weeks of compensation for healing period at the stipulated rate of one hundred twenty-one and 06/100 dollars ($121.06) per week payable commencing March 11, 1988. IT IS FURTHER ORDERED that defendants pay Myrtle Carey one hundred fifty (150) weeks of compensation for permanent partial disability at the stipulated rate of one hundred twenty-one and 06/100 dollars ($121.06) per week payable commencing August 24, 1988. IT IS FURTHER ORDERED that defendants pay the following medical expenses: Covenant Medical Center 1-11-89 $ 969.00 Evansdale Chiropractic Clinic 4-2-88 120.00 Radiological Associates, P.C. 4-25-88 23.90 Radiological Associates, P.C. 1-11-89 200.65 James E. Crouse, M.D. 4-6-89 68.00 M. Eyad Dughly, M.D. 180.00 Total $1,561.55 IT IS FURTHER ORDERED that defendants receive credit for all amounts of weekly compensation previously paid and pay all past due amounts in a lump sum together with interest pursuant to Iowa Code section 85.30. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to 343 IAC 4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to 343 IAC 3.1. Signed and filed this ______ day of ____________, 1990. Page 8 ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. John S. Pieters Attorney at Law 2315 Falls Avenue, Suite 3 Waterloo, Iowa 50701 Mr. Jeffrey J. Greenwood Attorney at Law 528 West Fourth Street P.O. Box 1200 Waterloo, Iowa 50704 5-1108; 5-1802; 5-1803 2902 Filed December 4, 1990 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : MYRTLE CAREY, : : Claimant, : : vs. : : File No. 878836 CEDAR FALLS LUTHERAN HOME, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 2902 Testimony from claimant, without corroboration from medical records or other sources, held insufficient to establish employer liability for medical treatment. 5-1108; 5-1802; 5-1803 Claimant, a 30-year-old nurse's aide who suffered a back injury which rendered her incapable of resuming employment as a nurse's aide, awarded 30 percent permanent partial disability. She had only a high school education and lost access to a large portion of the employment market which had previously been available to her. BEFORE THE IOWA INDUSTRIAL COMMISSIONER TERRY J. HULSEBUS, Claimant, VS. File No. 878840 DUBUQUE PACKING CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and SENTRY INSURANCE COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is an arbitration proceeding brought by Terry Hulsebus, claimant, against Dubuque Packing Company, employer, and Sentry Insurance Company, insurance carrier, defendants. The case was heard by the undersigned on October 12, 1989, in Sioux City, Iowa. The record consists of the testimony of claimant. The record also consists of the testimony of Connie Hulsebus wife of claimant, and Cecilia Blaskovich, vocational rehabilitation specialist. Finally the record consists of joint exhibits A-S and defendants' exhibits 1 and 2. ISSUES As a result of the prehearing report and order submitted on October 12, 1989, the issues presented by the parties are: 1. Whether claimant is entitled to temporary disability/ healing period benefits or permanent partial or total disability benefits; 2. Whether claimant is entitled to medical benefits under section 85.27; and, 3. Whether defendants are entitled to a credit under section 85.38(2) for previous payment of medical/hospitalization expenses. HULSEBUS V. DUBUQUE PACKING CO. Page 2 STIPULATIONS Prior to the hearing, the parties entered into a number of stipulations. The stipulations are as follows: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injury. 2. That claimant sustained an injury on March 1, 1988, which arose out of and in the course of employment with employer; 3. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is stipulated to be an industrial disability to the body as a whole. 4. The commencement date for permanent partial disability, in the event such benefits are awarded, is stipulated to be the 9th day of October, 1989; 5. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be $228.93 per week; 6. Defendants paid claimant .429 weeks of compensation at the rate of $228.93 per week prior to hearing; and, 7. The parties have stipulated to the taxation of costs. FACTS PRESENTED Claimant is 33 years old. He has a bachelors of science degree in wildlife ecology and conservation, although claimant has worked sparingly in that field since his 1981 graduation. At the time of the hearing, claimant had been employed at Anderson Fire Arms & Supplies d/b/a G.R.A. Wholesale for approximately six months. Claimant had been working at Anderson Fire Arms as a counter sales person where he was paid $166.00 per week salary and a five percent commission on retail sales made by him. Claimant testified he began working for defendant-employer on October 6, 1982 and he was hired as a line worker. During the course of his employment, claimant stated he held various jobs, including knife work, processing work, driving a fork lift and performing quality control tasks. Claimant described a non-work related auto accident he was involved in on July 8, 1987. Claimant reported an injury to his neck. Claimant testified that on March 1, 1988, he was hit from behind by a fork lift truck. As a result, claimant stated he was crushed between a basket of canned hams and the fork lift. HULSEBUS V. DUBUQUE PACKING CO. Page 3 Claimant further described the sequence of events which transpired on the day in question. He stated he fell down after the impact and several co-employees assisted him to the nurse's office. Claimant testified he was taken to the company physician, B. W. Treu, M.D. Medical records admitted at the hearing establish that claimant was referred to an orthopedic specialist, Mary-Franklin G. Paulus, M.D., by Dr. Treu. Dr. Paulus referred claimant to physical therapy at the Crawford County Hospital where he was treated by Cynthia Stessman, P.T., from March 7, 1988 to October 19, 1988. Medical records admitted at the hearing, also reveal claimant was treated by Michael T. O'Neil, M.D., pursuant to a request from defendants' attorney. Dr. O'Neil testified by deposition that he first examined claimant on June 27, 1988. Dr. O'Neil opined in his deposition: Q. Okay. Going back to April of '89, have you given us pretty much the results of your clinical exam- ination? A. No, I haven't. Q. Would you do that, please? A. Upon examination in April of '89, the lum- bosacral spine appeared to be normal visually. The pelvis was level. He walked well on his toes and heels. He complained of tenderness to pressure or fist percussion or palpation in the low back area in gen- eral, but there was no muscle spasm. Range of motion of the lumbosacral spine was approximately 50 percent of normal. His straight leg raising tests were negative at 90 degrees bilaterally, and a neurological examination of the lower extremity was completely normal with no evidence of motor weak- ness, reflex asymmetry or sensory deficits. Q. What was your diagnosis then? A. Well, at that time I thought that Mr. Hulsebus had sustained a ligamentous injury of the lumbar spine and felt that his symptoms were soft tissue in nature. I did not feel that a CT scan or a myelogram or MRT would be of any benefit in further diagnosing his prob- lem in view of the fact that he had a normal neurologi- cal examination and I presumed that he had normal X HULSEBUS V. DUBUQUE PACKING CO. Page 4 rays taken by Dr. Paulus who examined him for Dr. Bodo Treu. I recommended continued therapy or conservative treatment and asked him to return to the office in four to six weeks for reevaluation. Q. Okay. Have you seen the patient since July 18th, 1989? A. No, I have not. Q. Based upon your clinical examination and the history given to you and the records you've looked at, do you have an opinion within reasonable degree of med- ical certainty as to whether or not Mr. Hulsebus has any permanent partial impairment in his low back? A. I do. Q. What is that opinion? A. At this time I don't feel that Mr. Hulsebus has any permanent partial impairment of the lumbar spine. Q. And I take it that's the same with his neck? A. Well, he told me his neck symptoms have com- pletely resolved with treatment under the care of Dr. Crabb and perhaps Dr. Bodo Treu, but he -- he had no complaints referable to his neck when I saw him. (Exhibit F, pages 6-11) Under Cross-examination, Dr. O'Neil opined: .:.what is your opinion, Doctor, as to when he reached his medical -- his maximum recovery? A. I don't think he has. Q. You don't A. I think he's still going to improve. Q. Okay. So as far as you're concerned, then, when do you think that -- can you give us an opinion based upon a reasonable degree of medical certainty as to when you think he will reach his maximum medical improvement? HULSEBUS V. DUBUQUE PACKING CO. Page 5 A. I think within the next six to nine months. Q. Would it be better for him to come back to you for further treatment, Doctor, or is there anything more that you can do for him? A. I would like to see him again and see what progress he's made since July 18th, and I asked him to come back in 12 weeks, eight to 12 weeks. So August, September -- anytime in the next four weeks or so would be appropriate. Q. Okay. At the present time is Terry suffering any permanent partial impairment of the lumbar spine? A. He -- at the present time he's experiencing pain in his lumbar spine. And he has a temporary impair- ment, but I don't think he has a permanent impairment at this time. Q. I'm sorry, Doctor, I used the wrong word. A. Temporary partial impairment. Q. He has a temporary partial impairment which you believe should go away in, what did you say, six to nine months? A. Six to nine months. ... Q. Okay. Could you give me a figure, Doctor, as to the temporary partial impairment of the lumbar spine or temporary partial impairment that Terry Hulsebus has at the present tine, like functional impairment? A. I can. Q. Could you do that, please? A. I think he has a 5 percent permanent -- I'm sorry -- 5 percent temporary partial impairment of the lumbosacral spine. One month later, Dr. O'Neil again testified by deposition. At that time, he opined: A. I believe that Mr. Hulsebus has experienced an injury to his back, with resulting chronic ligamentous strain of the lumbar spine. HULSEBUS V. DUBUQUE PACKING CO. Page 6 Q. Do you have an opinion within a reasonable de- gree of medical certainty as to whether or not the .patient has any permanent partial impairment in his low back? A. I do. Q. What is that opinion? A. I believe that Mr. Hulsebus has sustained a 2 1/2 percent permanent impairment to the body as a whole as a result of his back injury. Q. Is that reading based upon subjective data sup- plied to you by the patient? A. The reading or judgment is based on my examina- tion and upon his not having any objective physical findings, despite his persistent pain and occasional limitation of motion of the lumbar spine, that's cor- rect. Q. So really there are no particular objective findings. Is that a fair way of putting it? A. That's correct. Q. Is it your opinion now, Doctor, that Terry has reached his maximum recovery as far as medical improve- ment is concerned? A. I believe he has. Dr. O'Neil also wrote a medical report dated October 6, 1989. In the report the physician opined: Mr. Hulsebus returned to our office on October 5, 1989, for reevaluation. He reports he has not changed appre- ciably since I saw him in July. He still has a con- stant dull aching low back pain which is minimal at times but quite severe at other times. He reports increased difficulty with stooping, bending, twisting and lifting. He continues to deny any radicular pains or paresthesias. His back pain improves with rest and medication. Examination today is also unchanged with fairly.normal range of motion with discomfort with maximum flexion with the fingertips ten inches from the floor. There is no muscle spasm. He does have fist percussion and palpation tenderness across the midline low back area HULSEBUS V. DUBUQUE PACKING CO. Page 7 and both paravertebral columns, but no buttock tender- ness. Straight leg raising tests are negative. I believe that this man has reached maximum medical improvement at this time. I would anticipate that he will continue to experience intermittent low back pain with aggravation with stooping, lifting or bending. I do not feel that any further treatment is indicated at the present time. Claimant testified he was laid off from his position at defendant-employer's establishment on April 4, 1988. He acknowledged he collected some unemployment benefits from April of 1988 to October 6, 1988, when he started working for the City.of Denison as a radio dispatcher. Cecilia Blaskovich testified for defendants. She is a vocational rehabilitation specialist. Ms. Blaskovich testified she met with claimant on one occasion for 45 minutes. Ms. Blaskovich testified claimant has excellent potential in the labor market, but he is limited by his geographical location. She opined claimant could find a job as an environmental specialist or a conservationist aide. Ms. Blaskovich testified she did not perform a job search for claimant. The witness also testified she coordinated a functional capacities evaluation for claimant. According to Ms. Blaskovich, she understood claimant did not put forth effort and the results of the evaluation were only "conditionally valid." APPLICABLE LAW An injury to a scheduled member may, because of after effects (or compensatory change), result in permanent impairment of the body as a whole. Such impairment may in turn form the basis for a rating of industrial disability. Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v, Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). 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, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is HULSEBUS V. DUBUQUE PACKING CO. Page 8 to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifi- cations intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden, 388 N.W.2d 181 (Iowa 1980). "Claimant is not entitled to reimbursement for medical bills unless he shows that he paid them from his own funds." See Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890 (Iowa App. 1983). HULSEBUS V. DUBUQUE PACKING CO. Page 9 ANALYSIS Claimant has proven by.a preponderance of the evidence that he sustained a temporary disability as a result of the injury he sustained on March 1, 1988. The greater weight of the evidence does not establish that claimant sustained a permanent disability. Dr. O'Neil, the treating orthopedist, could not find any 'objective manifestations of claimant's alleged condition. While Dr. O'Neil assessed a two and one-half percent to five percent permanent partial impairment rating to claimant, Dr. O'Neil readily admitted the figure was based entirely upon claimant's subjective complaints. Additionally, there is the report of John M. Dobler, P.T. He opined claimant's performance during the functional capacity assessment was only "conditionally valid." Next, there are the activities performed by claimant. He was quite capable of fishing in Storm Lake while wearing waders. Claimant was also capable of shooting prize winning wild turkeys. These are physically demanding activities. It is difficult to perceive a person in constant pain capable of wading through the waters of Storm Lake. Claimant was temporarily totally disabled from April 4, 1988 to October 6, 1988. On October 6, 1988, claimant obtained a position with the City of Denison. Prior to that date, claimant was medically incapable of returning to employment substantially similar to the employment in which the employee was engaged at the time of his injury. From March 7, 1988 to October 19, 1988, claimant was under the care of Dr. Treu and Dr. Mary-Franklin G. Paulus, as well as receiving intense physical therapy. Claimant was seen approximately 56 times for therapy during this time frame. Claimant was temporarily disabled during this same period. Therefore, claimant is entitled to 26.571 weeks of temporary total disability benefits from April 4, 1988 to October 6, 1988. The rate is $228.93 per week. The final issue to address is whether claimant is entitled to medical benefits under section 85.27. During the hearing, claimant testified to the following relative to the payment of medical bills: Crawford County Memorial Hospital $1,409.86 total 1,166.23 co. ins. paid 243.63 claimant paid Mary-Franklin G. Paulus $ 582.00 total.bill 440.00 ins. paid $ 142.00 claimant paid Mary-Franklin G. Paulus $20.00 claimant paid HULSEBUS V. DUBUQUE PACKING CO. Page 10 Crawford County Hospital $ 32.98 total bill 26.38 ins. paid $ 6.60 claimant paid Dr. O'Neil $ 25.00 0 paid $ 25.00 due Topko Drug $153.39 Mileage from Denison, Iowa to Omaha, Nebraska to visit Dr. O'Neil 3 round trips at 160 miles = 480 miles x .21 = $100.80 meals = $15.00 Total $ 115.80 mileage from Denison, Iowa to Omaha, Nebraska for functional capacity assessment 160 x .21 $33.60 meals 5.00 Total $38.60 Defendants maintain some of the medical bills are unrelated to the work injury of March 1, 1988. Claimant contends all of the medical bills are reasonable and necessary and related to the injury at work. Cynthia Stessman, P.T., testified that 50 percent of the medical bills at Crawford County Memorial Hospital are due to the 1987 non-work related automobile accident. Ms. Stessman reported each physical therapy session is billed at $30.00. Claimant denied the therapy sessions were for his 1987 non-work related accident. However, even a cursory review of the notes made by the therapist will reveal treatment for the cervical area. Therefore, it is the determination of the undersigned that 50 percent of the physical therapy charges are unrelated to claimant's work injury. Fifty percent of the physical therapy charges are related to the March 1, 1988 work injury as set out in exhibit I. The balance of the medical charges are reasonable and necessary expenses which are causally related to claimant's work injury. Defendants are liable for the balance including $134.40 in mileage. For medical bills related to the work injury, claimant is to be reimbursed for bills paid by him personally. Defendants are entitled to a credit. HULSEBUS V. DUBUQUE PACKING CO. Page 11 FINDINGS OF FACT AND CONCLUSIONS OF LAW Based upon the evidence presented, the testimony given and the stipulations of the parties, the following are the findings of fact and conclusions of law: Finding 1. Claimant sustained an injury to his lower back as a result of a work injury on March 1, 1988. Finding 2. Claimant received medical treatment for his lower back. Finding 3. Claimant was temporarily disabled from April 4, 1988 to October 6, 1988. Finding 4. There were no objective symptoms of claimant's low back injury of March 1, 1988. Finding 5. Claimant did not sustain any permanent functional impairment as a result of his work injury on March 1, 1988. Conclusion A. Claimant has proven by a preponderance of the evidence that he is entitled to temporary total disability benefits from April 4, 1988 to October 6, 1988. Conclusion B. Claimant has incurred certain medical expenses which are work related and defendants are liable for those causally related expenditures. ORDER THEREFORE, defendants are liable to claimant for twenty-six point five-seven-one (26.571) weeks of temporary total disability benefits at the stipulated rate of two hundred twenty-eight and 93/100 dollars ($228.93) per week. Defendants are liable for certain medical expenditures including fifty percent (50%) of the physical therapy expenditures listed in exhibit I. Accrued benefits are to be paid in a lump sum together with the statutory interest rate allowable. Defendants are to be given credit for all benefits previously paid to claimant. Costs are assessed to defendants. Defendants are to file a claim activity report upon payment of all benefits. HULSEBUS V. DUBUQUE PACKING CO. Page 12 Signed and filed this 30th day of April, 1990. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David E. Green Attorney at Law 801 N Adams Carroll IA 51401 Mr. Harry W. Dahl Attorney at Law 974 73rd, Suite 16 Des Moines IA 50312 5-1801 Filed April 30, 1990 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER TERRY J. HULSEBUS, Claimant, VS. File No. 878840 DUBUQUE PACKING CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and SENTRY INSURANCE COMPANY, Insurance Carrier, Defendants. 5-1801 Claimant sustained only a temporary disability as a result of an injury he sustained to his back on March 1, 1988. Claimant had no objtctive findings of any functional impairment. 1108.20; 1108.50; 1803 Filed April 2, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : SANDRA S. DORFMAN, : : Claimant, : : File Nos. 878903 vs. : 894241 : 911102 JOHN MORRELL & CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONAL UNION FIRE : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1108.50; 1803 Claimant sustained strain injury to lumbar spine. Near the time it was expected to heal, but while she was still symptomatic, claimant sustained repetitive motion cervical strain. Although symptoms exceeded objective signs, various physicians determined that range of motion was limited and reported finding spasms. View of chiropractor as to causal connection was preferred over board-certified orthopaedic surgeon where the latter found no permanent impairment even though agreeing that range of motion was diminished. Claimant's total industrial disability was apportioned evenly between the cervical and lumbar injuries. Healing period benefits were determined with respect to each. 1108.20 Claimant sustained psychological injury claimed due to stress caused by unfriendly relations with replacement workers at end of labor dispute in which she participated. Claimant had preexisting history of psychological disturbance. The only opinion as to causation was that of a licensed social worker, which was held insufficient to meet burden of proof on the issue. Page 1 before the iowa industrial commissioner ____________________________________________________________ : SANDRA S. DORFMAN, : : File Nos. 878903 Claimant, : 894241 : 911102 vs. : : A M E N D E D JOHN MORRELL & CO., : : O R D E R Employer, : : N U N C and : : P R O NATIONAL UNION FIRE : INSURANCE COMPANY, : T U N C : Insurance Carrier, : Defendants. : ____________________________________________________________ An Arbitration Decision was filed in the above matter on April 2, 1991. On April 3, 1991, by Order Nunc Pro Tunc, the last full paragraph on page 17 of the Arbitration Decision was amended to read as follows: Defendants shall pay unto claimant one hundred twenty-five (125) weeks of permanent partial disability benefits at the stipulated rate of two hundred forty-two and 89/100 dollars ($242.89) per week commencing July 14, 1990 and totalling thirty thousand three hundred sixty-one and 25/100 dollars ($30,361.25). On April 9, 1991, by Amended Order Nunc Pro Tunc, the sixth paragraph of the Order on page 17 of the Arbitration Decision was amended to read as follows: Defendants shall pay unto claimant one hundred twenty-five (125) weeks of permanent partial disability benefits at the stipulated rate of two hundred thirty-one and 87/100 dollars ($231.87) per week commencing January 16, 1989 and totalling twenty-eight thousand nine hundred eighty-three and 75/100 dollars ($28,983.75). On April 11, 1991, claimant filed an Application for Review-Reopening and/or Clarification asking whether an award of interest should have been made in the decision. Such an award of interest should have been made, but was inadvertently omitted from the Order. IT IS THEREFORE ORDERED, Nunc Pro Tunc, that the following paragraph should be added to the Order portion of the Arbitration Decision filed April 2, 1991: All accrued weekly benefits shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Page 2 IT IS FURTHER ORDERED that, in all other respects, the Arbitration Decision filed in this matter April 2, 1991 is affirmed and ratified. Signed and filed this ______ day of ____________, 1991. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Ms. Judith Ann Higgs Attorney at Law 200 Home Federal Building P.O. Box 3086 Sioux City, Iowa 51102 Page 1 before the iowa industrial commissioner ____________________________________________________________ : JOHN CASPER ADAMS, : : Claimant, : : File No. 878940 vs. : : SHELLER-GLOBE CORPORATION, : A R B I T R A T I O N : Employer, : D E C I S I O N Self-Insured, : Defendant. : ___________________________________________________________ statement of the case This case came on for hearing on October 31, 1990, in Cedar Rapids, Iowa. The record consists of the testimony of claimant, claimant's wife, Catharine Adams, and Rick Innis; joint exhibits 1 through 12 and 16; and defendant's exhibits A and B. This is a proceeding in arbitration wherein the claimant seeks permanent partial disability benefits and healing period benefits as a result of an alleged injury occurring on November 19, 1987. issues The issues for resolution are: 1. Whether claimant's alleged November 19, 1987 injury arose out of and in the course of his employment; 2. Whether claimant's alleged condition and alleged disability is causally connected to his November 19, 1987 injury; 3. The nature and extent of claimant's disability and entitlement to disability benefits; and, 4. Whether claimant gave proper and sufficient notice under 85.23 of the Iowa Code. findings of fact The undersigned deputy having heard the testimony and considered all the evidence, finds that: Claimant is a 43-year-old who left high school before graduation. Claimant related his work history prior to beginning work for defendant employer on November 20, 1978. Claimant's prior work history involved working as a farmhand, building prefab homes, and removing and replacing mortar (tuck pointer). Claimant related his work duties for defendant employer until he quit on November 19, 1987. These jobs were manual labor jobs. There is an 85.23 issue in this case which is dispositive of this case. For that reason, it will be unnecessary to review certain facts and Page 2 make certain findings as to the other issues of causal connection, arising out of and in the course of employment, the nature and extent of claimant's disability, and entitlement to disability benefits, if any. Claimant testified that on November 19, 1987, he was injured lifting a box of parts at work and incurred a double hernia. Defendant does not contend claimant did not have a hernia but contends it isn't work related and if it is, defendant knew nothing about it until claimant filed a petition on June 28, 1988. Claimant testified as to several injuries over the years, including a prior double hernia in May 1987. Claimant emphasized he never filed workers' compensation claims or received workers' compensation benefits for the prior injuries or events even though he seemed to indicate that most, if not all, were work related. Claimant did indicate he received a check from the insurance company for his time off and medical bills as a result of these prior injuries or medical conditions. Defendant is self-insured for any workers' compensation benefits. Therefore, the payments claimant received came from defendant's non-occupational insurance company, namely, John Hancock Mutual Life Insurance Company. Being self-insured as to workers' compensation benefits, any such benefits or claims paid would come directly from the pocket of defendant employer. Claimant also is a union member. The evidence shows claimant was given information by defendant employer regarding reporting any injuries. Also, it appears the union provides such information. There is no credible record of the employer receiving any notice of a workers' compensation claim by claimant. Claimant contends he told his group leader, Larry Black, that he was quitting because he had had enough in regard to his hernias. He said he was bent over and Mr. Black could see he had problems. Claimant was rather vague as to anything else that he may have said. He said he may have said something about a divorce or marital problems. Claimant contends this is notice under 85.23 of the 1987 Code of Iowa. On November 20, 1987, claimant called Rick Innis, who is in charge of the insurance, personnel and workers' compensation for defendant employer (Defendant's Exhibit A, page 3). Claimant contends that this was notice. Claimant wasn't clear as to the extent of the conversation with Mr. Innis, but indicated that he told Mr. Innis he had had a double hernia and said that Mr. Innis mentioned that it was too late since he is no longer working there and, therefore, no benefits would be paid. Claimant also indicated he talked to a Tony Cole a few days later trying to get his job back and told him he had a double hernia. He said Mr. Cole told him he should not have left the employment but should have gone to the personnel office. Rick Innis testified that claimant called him at 9:15 a.m. on November 20, 1987 (Def. Ex. 8, p. 3) and that Mr. Innis made a note of the nature of the conversation. He Page 3 said claimant's reason for quitting was that people in the plant were talking about claimant's wife and marriage and that is why he walked off the job. He recalled no other conversation with claimant. Mr. Innis said that claimant never said anything about a double hernia or about any injury. Mr. Innis said the first time he knew of claimant's hernia problem was when he found out the claimant had filed a petition and served it on defendant employer. Claimant's attorney interrogated Mr. Innis, at length. He acknowledged that it is beneficial for the company to conclude a claim is nonoccupational, as the company pays the workers' compensation claim out of its own pocket since it is self-insured. The burden is on claimant to prove his case. The undersigned believes Mr. Innis is a credible witness taking all other evidence on this issue into consideration. Although there is no excuse, claimant does seem knowledgeable of what he needs to do if he is hurt on the job. The undersigned would not hold the claimant to any elaborate procedure as to notice of an injury. Although notice to a supervisor or foreman would be sufficient, it is hard to conclude that claimant's manner of giving his alleged notice on the day he quit, November 19, 1987, or alleged notice as a result of his call to Mr. Innis on November 20, 1987, is notice of an alleged work injury. It is important to defendant employer to know as soon as possible of any work injury as it does make a difference to the company financially whether it is or isn't work related. It is hard to believe the group nonoccupational insurance company would accept liability for a work-related claim without any question. They obviously paid claimant based on a nonwork-related injury. In looking at claimant's history and repeated hernia problems, you could see that the insurance company might question claimant's problems as not being work related, if they actually weren't. At least the insurance carrier had early notice of a claim which it could have denied, thereby, putting the burden on defendant employer to then defend its position and make an early investigation close to the time of the alleged November 19, 1987 injury. It seems irrational that claimant would quit the company on the same day he was allegedly injured on the job on November 19, 1987. Claimant has the burden to show he gave the defendant notice as provided in 85.23 of the 1987 Iowa Code. Claimant has failed to prove he gave sufficient notice within the limits of the statute and the undersigned finds claimant did not give timely notice as provided by the statute. As mentioned earlier, the undersigned is not further reviewing herein certain evidence as the other issues are moot, but the undersigned notes that it would appear claimant also could not sustain his burden of proof as to claimant's alleged injury of November 19, 1987 arising out of and in the course of his employment or that his medical condition and alleged disability is causally connected to his November 19, 1987 injury. Page 4 It is found claimant failed to give notice under 85.23 of the 1987 Iowa Code, and, therefore, claimant shall take nothing from these proceedings. conclusions of law Iowa Code section 85.23, 1987, provides: Unless the employer or the employer's representative shall have actual knowledge of the occurrence of an injury received within ninety days from the date of the occurrence of the injury, or unless the employee or someone on the employee's behalf or a dependent or someone on the dependent's behalf shall give notice thereof to the employer within ninety days from the date of the occurrence of the injury, no compensation shall be allowed. It is further concluded: That claimant failed to give the employer or employer's representative any notice of any injury within 90 days from the date of the occurrence of an injury and that defendant employer did not have actual notice of any alleged injury of November 19, 1987. order THEREFORE, it is ordered: That claimant take nothing from these proceedings. That defendant and claimant shall pay equally the costs of this action, pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this _____ day of November, 1990. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Jerry Zimmerman Attorney at Law 129 1st Ave SW Cedar Rapids IA 52404 Mr Harry W Dahl Attorney at Law 974 73rd St Ste 16 Des Moines IA 50312 Page 5 5-2401 Filed November 8, 1990 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : JOHN CASPER ADAMS, : : Claimant, : : File No. 878940 vs. : : SHELLER-GLOBE CORPORATION, : A R B I T R A T I O N : Employer, : D E C I S I O N Self-Insured, : Defendant. : ___________________________________________________________ 5-2401 Claimant failed to give notice as provided in Iowa Code section 85.23 before the iowa industrial commissioner ____________________________________________________________ : ELIZA PEARL NOEL, : : Claimant, : : vs. : : File No. 878911 ROLSCREEN, : : 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. The decision of the deputy is affirmed and is adopted as the final agency action in this case. Signed and filed this ______ day of April, 1990. _____________________________ DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Harold B. Heslinga Attorney at Law 118 North Market Street Oskaloosa, Iowa 52577 Mr. Larry D. Spaulding Attorney at Law 1100 Des Moines Bldg. Des Moines, Iowa 50309 5-9998 Filed April 16, 1990 DAVID E. LINQUIST before the iowa industrial commissioner ____________________________________________________________ : ELIZA PEARL NOEL, : : Claimant, : : vs. : : File No. 878911 ROLSCREEN, : : A P P E A L Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-9998 Deputy's decision summarily affirmed on appeal. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ELIZA PEARL NOEL, Claimant, File No. 878911 vs. A R B I T R A T I O N ROLSCREEN COMPANY, D E C I S I O N Employer, F I L E D and OCT 31 1989 EMPLOYERS MUTUAL COMPANIES, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Eliza Pearl Noel, claimant, against Rolscreen Company, employer, and Employers Mutual Companies, insurance carrier, defendants, for benefits as the result of an injury that occurred on April 27, 1988. A hearing was held in Des Moines, Iowa, on June 15, 1989, and the case was fully submitted at the time of the hearing. Claimant was represented by Harold B. Heslinga. Defendants were represented by Larry W. Spaulding. The record consists of the statement of stipulated facts submitted by the parties and Joint Exhibits A through E. The deputy ordered a transcript of the abbreviated hearing. Both attorneys submitted excellent briefs at the time of the hearing. STIPULATIONS The parties stipulated to the following matters: That an employer-employee relationship existed between claimant and employer at the time of the injury. That claimant sustained an injury on April 27, 1988, which arose out of and in the course of employment with employer. That the injury was the cause of both temporary and permanent disability. That claimant is entitled to temporary disability benefits from April 28, 1988 to June 21, 1988. That claimant is entitled to 43.7 weeks of permanent disability benefits based upon a 64 percent scheduled member loss of the left index finger and a 71 percent scheduled member loss of the left second finger. That the commencement date for permanent disability benefits iS June 21, 1988. That the marital status of claimant is single and that claimant is entitled to two exemptions. That all requested medical benefits have been or will be paid by defendants. That defendants seek no credit for employee nonoccupational group health plan benefits paid to claimant prior to hearing. That in the event of an award of benefits that defendants are entitled to a credit for 7 5/7 weeks of temporary disability benefits and 43.7 weeks of permanent disability benefits paid to claimant prior to or contemporaneous with the hearing. That there are no bifurcated claims. ISSUE The sole issue presented for determination at the time of the hearing was the proper rate of compensation. SUMMARY OF THE EVIDENCE Selected items from the statement of stipulated facts not included above are as follows: That on April 27, 1988, claimant was operating a WTD jam drill in the performance of her duties as a shaper cutout operator. She was in the process of cleaning the jam drill. She turned the machine off, removed the guard and was brushing debris away from the router bit. Her left index finger, left second finger and left third finger came in contact with the router bit while the bit was coasting to a stop. Claimant sustained an amputation of the distal interphalangeal joint of both the index finger and the second finger and sustained lacerations of the volar aspect of the third finger. Claimant received medical treatment from Gene VanZee, M.D. and Charles Schafer, M.D., and that all medical bills, in the amount of $3,259.07 have been paid by defendants. Thomas W. Bower, L.P.T. and Scott B. Neff, D.O., determined that claimant sustained a 64 percent permanent impairment of the left index finger and 71 percent permanent impairment of the left second finger which results in 43.7 weeks of permanent disability benefits. That parties stipulated that claimant's hourly rate of regular earnings was $9.49 per hour on January 30, 1988; $9.53 per hour effective February 1, 1988; and $9.55 per hour effective April 4, 1988. Claimant's average weekly hours for the 13 weeks prior to April 27, 1988, was 45 hours per week. Claimant received a Christmas bonus in 1988 and has received this Christmas bonus in her past yeArs of employment with employer. Claimant's Christmas bonus was based on 15 percent of her gross annual earnings for the period from December 1, 1987 to November 30, 1988. Claimant's payroll check stub has shown an amount of hourly wage rate for regular earnings and an amount of hourly wage rate including the Christmas bonus. Claimant's reported hourly wage rate including the Christmas bonus was $10.91 as of January 30, 1988; $10.96 effective February 1, 1988; and $10.98 effective April 4, 1988. The Christmas Bonus Program is a totally employer funded program provided only to active employees as determined by their employment status on November 30, the last day of the fiscal year. An active employee also includes employees who have died, become disabled, retired or who are on leave for military service. The qualifications for participation in the Christmas Bonus Program arE: (1) active employee status; (2) number of years of continuous service; (3) amount of gross wages; and (4) on November 30, of the applicable fiscal year. Employer provides other fringe benefits of health, dental and life insurance; profit sharing; vacation, holiday and jury duty pay; discount on company products; tuition assistance; and a monetary award for perfect attendance of hourly employee. This concludes the statement of stipulated facts. The employee's handbook under the index tab for compensation provides as follows: YOUR CHRISTMAS BONUS Rolscreen values your years of loyalty indicated by length of service. The Christmas Bonus plan provides an annual guaranteed bonus of varying amounts according to the length of service and is another way in which such loyalty is recognized and rewarded. (See Benefits section for details.) (Exhibit A, deposition exhibit 1, page 16) The benefits section of the employee's handbook contains this information about the Christmas Bonus: CHRISTMAS BONUS Rolscreen pays a Christmas Bonus each year to every person on the payroll as of November 30. The bonus amounts are graduated and increased based on the length of continuous service as of November 30 of the year for which the bonus is being paid. The amounts of bonus to be paid are percentages of your gross earnings froM December 1 to November 30, as shown below: Service Percent 0 to 12 months = 71/2% 1 to 2 years = 9% 2 to 3 years = 10 1/2% 3 to 5 years = 12% 5 to 10 years = 13 1/2% 10 years and over = 15% Since this is a guaranteed bonus, you will find two hourly rates on your check stub. Your "Regular Base Rate" is your regular rate on which overtime is computed. Your "Hourly Wage Including Bonus" includes your anticipated bonus. Arlin M. Harvey testified by deposition on August 12, 1988, that he has been employed as personnel specialist for employer for 13 years. He is a 24 year employee of employer, starting on January 3, 1964. He testified that each new employee receives an employee's handbook and an explanation of benefits, which includes mention of the Christmas Bonus. He said the compensation section of the manual includes cost of living allowance, Christmas bonus, job performance pay classifications, exemptions, overtime and those things dealing with pay. The Christmas bonus has been in effect since the 1940's. The exact beginning date is unknown. The Christmas bonus is paid to anyone who is an active employee on November 30 of each year (ex. A, pp. 19, 41 & 42). November 30 is the close of the fiscal year. Retired employees, disabled employees, deceased employees and those on military leave of absence are considered to be active employees for purposes of the Christmas bonus. No payments are made prior to November 30 of any year. As of November 30 the payment is guaranteed to eligible employees, but cannot be guaranteed prior to that time (ex. A, pp. 20 & 21). There is no separate fund for the bonus, amounts do not accrue as the year progresses, and the employee cannot borrow money against the anticipated bonus. The philosophy of the Christmas bonus is incentive to encourage longevity and to encourage employees to become long-term employees (ex. p. 22). The pay stub of the hourly employees show both the regular hourly rate and also what it would be using the anticipated hourly rate if the Christmas bonus was included. This is done to encourage employee retention (ex. A, pp. 23 & 32). The Christmas bonus is not a negotiated benefit, but rather a voluntary program provided by management for employee relations and employee retention (ex. A, p. 27). Harvey said it could possibly be called premium, payment, reward or compensation (ex. A, pp. 27-32). The employees identify it as a Christmas bonus. The Christmas bonus amounts are not used in the calculation of the workers' compensation rate (ex. A, p. 30), even when the 13 weeks prior to the injury would include the period immediately after November 30 (ex. A, pp. 43 & 44). If a person was sick and the gross wages were affected then this would also affect the amount of the Christmas bonus (ex. A, pp- 31 & 32). Claimant's payroll register for April 30, 1988, was introduced into evidence. April 30, 1988, was the end of the pay period for the week in which the inJury occuRred. (ex. A, dep. ex. 2). The term guaranteed bonus has appeared in the handbook for a number of years. That terminology has been used for the last ten years (ex. A, p. 41). Employer has no specific fund set aside to pay the Christmas bonus (ex. A, pp. 23 & 44). Harvey said the workers' compensation gross earnings rate excludes the Christmas bonus, profit sharing, and other employee benefits (ex. A, pp. 42 & 48). APPLICABLE LAW AND ANALYSIS Iowa Code section 85.36 provides as follows: Basis of computation. The basis of compensation shall be the weekly earnings of the injured employee at the time of the injury. Weekly earnings means gross salary, wages, or earnings of an employee to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee's employer for the work or employment for which the employee was employed, computed or determined as follows and then rounded to the nearest dollar: ... Subsection six, of Iowa Code section 85.36, with respect to employees paid on an hourly basis reads as follows: In the case of an employee who is paid on a daily, or hourly basis, or by the output of the employee, the weekly earnings shall be computed by dividing by thirteen the earnings, not inclUding overtime or premium pay, of said employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury. Gross earnings are defined in Iowa Code section 85.61, Definitions, subparagraph 12: "Gross earnings" means recurring payments by employer to the employee for employment, before any authorized or lawfully required deduction or withholding of funds by the employer, excluding irregular bonuses, retroactive pay, overtime, penalty pay, reimbursement of expenses, expense allowances, and the employer's contribution for welfare benefits. The proper rate of compensation is calculated as follows: First of all, the first line of section 85.36 states that the basis of compensation shall be the earnings of the employee at the time of the injury. Irrespective of whether the Christmas bonus was a regular or irregular bonus, the Christmas bonus was not the earnings of the employee at the time of the injury on April 27, 1988, even though the estimated hourly rate of the bonus was shown on the pay stub along with the regular earnings to which claimant was entitled at the time of the injury. The Christmas bonus was subject to the condition precedent that claimant be an active employee on November 30, 1988. Until that occurred the Christmas bonus was merely an expectancy. There was no vested right to it until claimant performed the continuous employment required and was determined to be an active employee on November 30, 1988. This is true even though claimant had received the bonus every one of the 15 years she had been employed by employer. At any given time, claimant was free to resign from her employment. Also, she could have been discharged by employer. If she resigned or was discharged, she would not have been entitled to the bonus. The employee's handbook states that the Christmas bonus is guaranteed. However, it is guaranteed only on the condition precedent that claimant perform continuous employment up to and including November 30 and be determined to be an active employee on that date. The employee handbook clearly states, "Rolscreen pays a Christmas Bonus each year to every person on the payroll as of November 30." The handbook adds that the regular and bonus rates will be shown on the pay stub and concludes, "Your Hourly Wage including Bonus' includes your anticipated bonus." The words "anticipated bonus" make it clear that the Christmas bonus is not a reality until November 30. Prior to November 30, it is only a contingency. Defendants have pointed out that the weekly rate of compensation cannot be based on speculative earnings. Fitzpatrick v. Hupp Electric Motors, Inc., file number 813668, filed March 5, 1987; Fitzpatrick v. Hupp Motors, Inc., file number 813668 (Appeal Decision, September 21, 1988). Harvey, the personnel specialist, testified that no payments are made prior to November 30 in any given year. He said the bonus is only guaranteed to employees who are eligible on that date. He said that it is not guaranteed prior to that date. Consequently, the Christmas bonus cannot be included in the rate calculation in this case because it was not part of the actual earnings of the employee on the date of the injury as required by the first line of Iowa Code section 85.36. Furthermore, subsection six of Iowa Code section 85.36 states that the rate calculation is based on the earnings "in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury." This determination is made with all due respects to the determination of another deputy made in a similar case cited by claimant in her brief. Brewer v. Rolscreen Company, file number 833703, filed November 17, 1988. That case appears to be determined on whether the bonus is regular or irregular. This decision does not progress to that point. This case excludes the Christmas bonus because it was not the actual earnings of the employee at the time of the injury. It may be noted however, that Industrial Commissioner David E. Linquist has determined that a bonus which an employee received almost every month, even though the amount varied, was incentive pay, and was not an irregular bonus under Iowa Code section 85.61(12). He concluded that the bonus was regular because it was paid every month and thus it was properly included in the determination of rate under section 85.61(12). Marcks v. Richman Gordman, file number 679369 (Appeal Decision June 29, 1988). Likewise, this deputy found that a bonus that was an integral part of an employer's overall compensation system paid to all employees based on production which was available to be paid every month, if earned, was not an irregular bonus and was included in the calculation of rate. Lewis v. Dee Zee Manufacturing, file number 797154, filed September 11, 1989. Accordingly, this Christmas bonus is not excluded in the calculation of the rate in this case because it is an irregular bonus, but rather it is excluded in the calculation of rate because it was not included in the actual earnings of the employee at the time of the injury (Iowa Code section 85.36, line 1 of that section and subsection 6). Based on the stipulated information submitted by the parties, the rate in this case is determined as follows: dividing by 13, the earnings of the employee, "in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury." (Iowa Code section 85.36,.subsection 6). Harvey testified that Saturday, April 30, 1988, was the end of the pay period for the week in which claimant was injured. Therefore, the last completed week before the injury was one week earlier on Saturday, April 23, 1988. The last completed 13 weeks preceding the injury are set out below. The parties stipulated to 45 hour weeks. The parties stipulated that on January 30, 1988; the regular rate of pay was $9.49 per hour; on February 1, 1988, it was $9.53 per hour; and on April 4, 1988, it was $9.55 per hour. GROSS WEEK HOURS WEEKLY ENDING RATE WORKED EARNINGS 1. 1-30-88 $9.49 45 $427.05 2. 2-06-88 9.53 45 428.85 3. 2-13-88 9.53 45 428.85 4. 2-20-88 9.53 45 428.85 5. 2-27-88 9.53 45 428.85 6. 3-05-88 9.53 45 428.85 7. 3-12-88 9.53 45 428.85 8. 3-19-88 9.53 45 428.85 9. 3-26-88 9.53 45 428.85 10. 4-02-88 9.53 45 428.85 11. 4-09-88 9.55 45 429.75 12. 4-16-88 9.55 45 429.75 13. 4-23-88 9.55 45 429.75 TOTAL EARNINGS $5,575.95 DIVIDED BY 13 weeks GROSS WEEKLY WAGES $ 428.92 Rounding $428.92 up to $429 and going to this amount of gross weekly wages in the Guide to Iowa Workers' Compensation Claim Handling for July 1, 1987, the book shows that the rate of weekly compensation for a single person with two exemptions is $263.25 per week. The parties stipulated that claimant was single and was entitled to two exemptions. FINDING OF FACT Wherefore, based on the evidence presented, the following finding of fact is made: That the proper rate of compensation based on the facts of this case is $263.25 per week as shown above. CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously discussed, the following conclusions of law are made: That the proper rate of compensation in this case is to be determined by claimant's regular earnings at the time of the injury because the Christmas bonus was only an expectancy on the date of the injury. That the proper rate of compensation based on the evidence presented is $263.25 per week. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant seven point seven one four (7.714) weeks of healing period benefits at the rate of two hundred sixty-three and 25/100 dollars ($263.25) per week in the total amount of two thousand thirty and 71/100 dollars ($2,030.71) for the period from April 28, 1988 to June 21, 1988. That defendants pay to claimant forty-three point seven (43.7) weeks of permanent partial disability benefits at the rate of two hundred sixty-three and 25/100 dollars ($263.25) per week in the total amount of eleven thousand five hundred four and 03/100 dollars ($11,504.03) commencing June 21, 1988. That these amounts are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants are entitled to a credit for seven point seven one four (7.714) weeks of temporary disability benefits paid prior to hearing at whatever rate was used at that time and if the rate was less than two hundred sixty-three and 25/100 dollars ($263.25) as shown by the form 2A's in the industrial commissioner's file, then claimant is due the difference plus statutory interest. That defendants are entitled to a credit for forty-three point seven (43.7) weeks of permanent partial disability benefits paid at the time of hearing, at the rate of two hundred sixty-three and 25/100 dollars ($263.25), according to the representation of defendants' counsel. (transcript page 5). That the costs of this proceeding are charged to defendants pursuant to division of Industrial Services Rule 343-4.33. That defendants file any claim activity reports that may be requested by this agency Signed and filed this 31st day of October, 1989. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Harold Heslinga Attorney at Law 118 N Market St. Oskaloosa, IA 52577 Mr. Larry D. Spaulding Attorney at Law 1100 Des Moines Building Des Moines, IA 50309 3001; 3002; 3003 Filed October 31, 1989 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ELIZA PEARL NOEL, Claimant, vs. File No. 878911 ROLSCREEN COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. 3001; 3002; 3003 A Christmas bonus paid to all employees who were active employees on November 30 of each year (the close of the fiscal year) was not used to calculate gross earnings because it was not included in the actual weekly earnings of the employee at the time of injury on April 27, 1988 (Iowa Code section 85.36, line 1). Furthermore, it was not the actual earnings of the employee in the last completed period of thirteen consecutive weeks immediately preceding the injury which occurred on April 27, 1988 (Iowa Code section 85.36, subparagraph 6). If the employee resigned or was discharged prior to November 30, she would not have received the Christmas bonus. Therefore, the Christmas bonus was merely an expectancy or a contingency on April 27, 1988, when the injury occurred. This decision did not progress to the point of determining whether it was a regular or an irregular bonus under Iowa Code section 85.62(12), but implies that it is probably a regular bonus citing the industrial commissioner in the Marcks case and one of the deputy's earlier decisions.