BEFORE THE IOWA INDUSTRIAL COMMISSIONER

 

____________________________________________________________

 

:

 

ALVIN DAVIS, :

 

:

 

Claimant, :

 

:

 

vs. :

 

: File No. 898933

 

WEITZ COMPANY, :

 

: A P P E A L

 

Employer, :

 

: D E C I S I O N

 

and :

 

:

 

EMPLOYERS MUTUAL COMPANIES, :

 

:

 

Insurance Carrier, :

 

Defendants. :

 

___________________________________________________________

 

 

 

STATEMENT OF THE CASE

 

 

Defendants appeal and claimant cross-appeals from an

 

arbitration decision awarding claimant permanent partial

 

disability benefits of 70 percent of the body as a whole.

 

 

The record on appeal consists of the transcript of the

 

arbitration decision filed October 26, 1990; of joint exhibits A,

 

B, D, E and F; of defendants' exhibit C and defendants'

 

exhibit 1. Both parties filed briefs on appeal.

 

 

ISSUES

 

 

Defendants state the issues on appeal as:

 

 

1) Whether the deputy industrial commissioner erred in

 

concluding that the injury of August 23, 1988 was a material

 

aggravation of the preexisting "well established spinal stenosis

 

condition"; and, 2) whether the deputy erred in apportioning

 

claimant's industrial disability between the preexisting

 

condition, the 1987 injury, and the industrial disability

 

resulting from that injury, and the 1988 injury and in concluding

 

that claimant had a 70 percent industrial disability as a result

 

of the 1988 injury.

 

 

Claimant states the issues on cross-appeal as:

 

 

1) Whether the deputy's award of 70 percent industrial

 

disability was inadequate; and 2) the appropriate rate of

 

compensation.

 

 

REVIEW OF THE EVIDENCE

 

 

The arbitration decision filed October 26, 1990 adequately

 

and accurately reflects the pertinent evidence. It will not be

 

totally reiterated herein.

 

 

 

 

Page 2

 

 

 

 

Dr. Hayne opined that claimant's spinal stenosis was

 

aggravated by the straining incident injury. Dr. Hayne has

 

further stated that even if claimant had left sciatica in

 

February 1987 "one could still say" some of the aggravation of

 

the preexisting spinal stenosis resulted from the August 1988

 

work injury. Dr. Hayne opined that left sciatica in February

 

1987 probably would affect the amount of aggravation attributable

 

to the August 1988 work injury by decreasing that amount by two

 

to three percent. He further clarified that that decrease of two

 

to three percent would be an additional decrease from the one to

 

two percent decrease in impairment attributable to the August

 

1988 injury which prior decrease resulted from claimant having

 

preexisting nonsymptomatic stenosis.

 

 

Dr. Boulden expressed his belief that once final stenosis is

 

systematic, symptoms tend to exist until they are "cooled down"

 

through medical or surgical intervention.

 

 

Mr. Williams, in his vocational consultation report, states

 

that claimant is concerned with how any new employment would

 

affect the "ins and outs" of teamster retirement. Williams'

 

statement of claimant's monthly income includes monthly income of

 

$500 received from a disability policy. The statement does not

 

include any pension or other designated retirement income.

 

 

The wage statements at pages 8 and 20 of exhibit E reflect

 

that full time weeks with the company were 40 hours. The

 

employer did not pay for holidays or leave time taken for

 

personal business. The wage statements reflect that claimant was

 

considered a full time and not a part-time employee of the

 

employer.

 

 

APPLICABLE LAW

 

 

The citations of law and the arbitration decision are

 

appropriate to the issues and the evidence with the following

 

additions:

 

 

Apportionment of disability between a preexisting condition

 

and an injury is proper only when some ascertainable portion of

 

the ultimate industrial disability existed independently before

 

an employment-related aggravation of disability occurred. Bearce

 

v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Varied Enterprises,

 

Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Hence, where

 

employment is maintained and earnings are not reduced on account

 

of a preexisting condition, that condition may not have produced

 

any apportionable loss of earning capacity. Bearce, 465 N.W.2d

 

at 531. Likewise, to be apportionable, the preexisting

 

disability must not be the result of another injury with the same

 

employer for which compensation was not paid. Tussing v. George

 

A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990).

 

 

The burden of showing that disability is attributable to a

 

preexisting condition is placed upon the defendant. Where

 

evidence to establish a proper apportionment is absent, the

 

defendant is responsible for the entire disability that exists.

 

Bearce, 465 N.W.2d at 536-37; Sumner, 353 N.W.2d at 410-11.

 

 

Under section 85.36 the weekly earnings of the injured

 

employee at the time of the injury form the basis of

 

 

 

Page 3

 

 

 

 

 

compensation. Weekly earnings are defined as gross salary,

 

wages, earnings of the employee to which the 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 employer for whom the employee was employed.

 

 

Overtime pay is not included in figuring claimant's rate.

 

Instead, overtime worked is calculated at regular time pay.

 

 

It has been said regarding determination of rate for

 

nonsalaried employees under section 85.36(6):

 

 

It is not uncommon in determining the rate under

 

section 85.36(6) for a non-salaried employee to find

 

that there are weeks within the 13 consecutive weeks

 

prior to the injury that contain absences due to

 

illness, vacation or other causes. Since the worker

 

often does not get paid unless he works, these weeks

 

are not representative of his earnings. The agency has

 

consistently ruled that these weeks are not included in

 

the 13 weeks for determining the rate under Iowa Code

 

section 85.36(6). Instead, the "short" weeks are

 

skipped and additional weeks are included until 13

 

completed consecutive weeks are accumulated for the

 

calculation. The rationale for this method of

 

determining the weekly earnings is based on the mandate

 

of the first unnumbered paragraph of Iowa Code section

 

85.36 which requires a determination of earnings to

 

which an employee "would have been entitled had he

 

worked the customary hours for the full pay period in

 

which he was injured...."

 

 

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

 

(2nd Ed.), Section 12-4. (citations omitted)

 

 

ANALYSIS

 

 

Defendants argue that the deputy erred in finding that

 

claimant's August 23, 1988 injury resulted in a material

 

aggravation of claimant's preexisting spinal stenosis.

 

Defendants argue that given that claimant had had episodes of

 

left sciatica prior to August 23, 1988, material aggravation

 

could not appropriately be found. Dr. Hayne attributed a 12

 

percent permanent partial impairment to claimant's spinal

 

stenosis. In his initial report, Dr. Hayne stated that perhaps

 

three to four percent of that amount related to injury to the low

 

back prior to the August 1988 work injury. In his deposition,

 

Dr. Hayne stated that had claimant had preexisting left sciatica

 

in February 1987, an additional two to three percent of the

 

permanent partial impairment rating would need to be apportioned

 

out of that part attributable to the August 1988 work injury.

 

Hence, under a worse case scenario, claimant had a seven percent

 

permanent partial impairment prior to his August 1988 work

 

injury. Even under that scenario, claimant has an additional

 

five percent permanent partial impairment which Dr. Hayne relates

 

to the August 1988 work injury. That difference [from a seven

 

percent to a 12 percent permanent partial impairment rating]

 

represents a material aggravation of claimant's underlying

 

condition on account of the work injury. Additionally, Dr.

 

Boulden, who treated claimant, makes no division between

 

 

 

Page 4

 

 

 

 

 

claimant's preexisting spinal stenosis and his symptomatic spinal

 

stenosis as a result of the work injury. While Dr. Boulden says

 

that the existence of preexisting conditions would require

 

another "look" at the causation issue, Dr. Boulden has also

 

indicated that once spinal stenosis has been lit up, that is, has

 

become symptomatic, medical or surgical intervention usually is

 

required before the symptoms will abate. Prior to claimant's

 

August 1988 work injury, even where the record demonstrates that

 

claimant had intermittent symptoms, these symptoms abated with

 

minimal medical or chiropractic treatment. Subsequent to the

 

August 1988 work injury, claimant has required significant

 

conservative medical intervention for his symptomatic spinal

 

stenosis. Even with that intervention, claimant has had

 

continuing symptoms. For that reason also, claimant's 1988 work

 

injury is determined to be a material aggravation of claimant's

 

preexisting spinal stenosis.

 

 

In that material aggravation has been found relative to

 

claimant's current condition and his 1988 work injury, we need

 

not address claimant's argument that defendants' stipulation as

 

to a causal relationship between permanent disability and the

 

claimed injury precludes consideration of the material

 

aggravation issue. We note, however, that even where the parties

 

have entered into stipulations, the commissioner is free to

 

reject such stipulations where they are contrary to the facts

 

found or the law applicable in a particular case.

 

 

Defendants assert that the deputy erred in not apportioning

 

some proportion of claimant's found industrial disability between

 

his preexisting spinal stenosis condition and the aggravation on

 

August 23, 1988. We disagree. Apportionment is only proper when

 

some ascertainable portion of the ultimate industrial disability

 

existed independently before the work-related aggravation. Prior

 

to the August 1988 work injury, claimant was free to engage in

 

all employments for which his age, education and work experience

 

suited him. It was only after and on account of the August 1988

 

work injury that claimant's access to jobs which otherwise would

 

have been available to him was significantly reduced. Hence,

 

apportionment of industrial disability is not appropriate.

 

 

Both claimant and defendants disagree with the deputy's

 

award of 70 percent industrial disability. Defendants argue the

 

award is excessive. Claimant argues the award is inadequate.

 

The award is appropriate. Claimant is an older gentleman. He is

 

precluded from heavy manual labor on account of his symptomatic

 

spinal stenosis. Claimant has limited education, limited work

 

experience and limited transferable skills. Given his age and

 

his overall lack of education, he is not a likely candidate for

 

retraining. Likewise, claimant's testimony at hearing and other

 

evidence in the record suggests that claimant lacks the social

 

standing and social graces that employers might well seek in an

 

employee who would be performing some of the tasks Vocational

 

Consultant Williams suggested would be appropriate for claimant.

 

On the other hand, claimant is not wholly precluded from the

 

labor market. Positions within claimant's work restrictions and

 

claimant's overall capacities do exist. Claimant appears to

 

enjoy the non-income producing activities in which he is

 

currently engaged. The record does not reflect that claimant has

 

placed any significant energy into seeking a position that

 

produces income. That mixed motivation, the fact that jobs

 

 

 

Page 5

 

 

 

 

 

available to claimant are few and limited to low paying, entry

 

level positions and the other factors recited above demonstrates

 

that the 70 percent permanent partial disability award was

 

appropriate.

 

 

[Claimant states that the deputy incorrectly found that

 

claimant had taken retirement. The only reference to retirement

 

in the record is Vocational Consultant Williams' recitation in

 

Williams' report that claimant had concerns relative to the

 

relationship between teamster's retirement income and other

 

employment income. Williams further recites that claimant has

 

disability income of $50 per month. From those facts, the deputy

 

apparently inferred that claimant had taken retirement. That

 

inference, while perhaps an error, does not change the outcome

 

relative to the industrial disability question, however. The

 

record demonstrates that claimant is content in his non-income

 

producing status and is making at best, minimal efforts, to

 

change that status. Hence, a greater award of industrial

 

disability would not be appropriate.]

 

 

The rate of weekly compensation is disputed. The record

 

reflects that claimant was a full time hourly employee of

 

defendants. Pay records submitted suggest that full time hourly

 

employees customarily worked a 40 hour week unless circumstances

 

intervened which made a 40 hour work week impossible. The record

 

also demonstrates that where claimant felt the need or desire to

 

work less than a 40 hour week claimant had to "take time off"

 

from his employment. The practice of requiring an employee to

 

report or request, or both, time to be taken off from employment

 

suggests that the employer regularly requires the employee to

 

work the customary hours for the full pay period. Given such,

 

weeks in which claimant was off work on account of unpaid

 

holidays or on account of unpaid personal business cannot be

 

considered weeks representative of claimant's earnings had

 

claimant worked the customary hours for the full pay period in

 

which he was injured. For that reason, only those weeks in which

 

claimant worked at least 40 hours can appropriately be considered

 

in calculating claimant's rate. Any hours in addition to 40

 

hours worked, of course, must be calculated at claimant's regular

 

hourly rate only.

 

 

Only nine representative weeks are available on exhibit E.

 

From that exhibit at page 8 it is discerned that claimant worked

 

through July 13, 1988 at an hourly rate of $10.975 per hour.

 

Subsequent to that date he worked an hourly rate of $10.625 per

 

hour. Claimant worked 201.5 hours at the greater hourly rate and

 

163.5 hours at the lesser hourly rate. Overall earnings at the

 

greater hourly rate were $2,211.46; overall earnings at the

 

lesser hourly rate were $1,737.19. Total earnings at the

 

straight hourly rate were $3,948.65. When that amount is divided

 

by 9 weeks, the gross weekly wage is $438.74. When injured on

 

August 23, 1988, claimant was a single individual entitled to two

 

exemptions. His weekly rate of compensation then is $269.69.

 

 

FINDINGS OF FACT

 

 

Claimant was injured in the course of his employment on

 

August 23, 1988 when claimant aggravated his preexisting spinal

 

stenosis while swinging buckets of hydraulic fluid.

 

 

 

 

Page 6

 

 

 

 

 

Claimant had had intermittent left sciatic prior to August

 

23, 1988.

 

 

Claimant's intermittent left sciatic prior to August 23,

 

1988 had resolved without significant medical intervention.

 

 

Claimant had been able to continue in previous employments

 

prior to the August 23, 1988 work injury.

 

 

Claimant's August 23, 1988 work injury resulted in a

 

material aggravation of claimant's preexisting spinal stenosis.

 

 

Claimant was 55 years old at the time of hearing. He had

 

completed tenth grade and had no other formal education.

 

 

Claimant had training as a meat cutter and has worked as a

 

meat cutter, bar owner and truck driver.

 

 

Claimant is unable to return to his prior employments on

 

account of his work injury.

 

 

Claimant is not a good candidate for further education,

 

retraining or significant rehabilitation.

 

 

Claimant has engaged in a number of nonincome producing

 

activities since his inability to return to his former employment

 

on account of his injury.

 

 

Claimant enjoys his nonincome producing activities and is

 

not highly motivated to seek employment.

 

 

Jobs do exist for which claimant may be suited.

 

 

Jobs for which claimant may be suited are likely to be entry

 

level positions paying at approximately the minimum wage.

 

 

Claimant was a full time employee of the employer.

 

 

When work was available, the employer customarily required a

 

40 hour work week from its full time employees.

 

 

Weeks where claimant worked less than 40 hours on account of

 

leaving work to do personal business or on account of unpaid

 

holidays are not representative work weeks.

 

 

CONCLUSIONS OF LAW

 

 

Claimant has established that his August 23, 1988 work

 

injury results in a material aggravation of his preexisting

 

spinal stenosis such that claimant is entitled to an award of

 

permanent partial industrial disability benefits on account of

 

the August 23, 1988 work injury.

 

 

Defendants have not established that claimant had a

 

significant ascertainable portion of industrial disability which

 

should be apportioned out from an award of industrial disability

 

related to his August 23, 1988 work injury.

 

 

Claimant has established an entitlement to an award of

 

permanent partial industrial disability benefits in the amount of

 

 

 

Page 7

 

 

 

 

 

70 percent of the body as a whole on account of the August 23,

 

1988 work injury.

 

 

Claimant has established entitlement to a weekly rate of

 

compensation in the amount of $269.69.

 

 

WHEREFORE, the decision of the deputy is affirmed in part

 

and reversed in part.

 

 

ORDER

 

 

THEREFORE, IT IS ORDERED:

 

 

Defendants pay claimant three hundred fifty (350) weeks of

 

compensation for permanent partial disability at the rate of two

 

hundred sixty-nine and 69/l00 ($269.69) per week with such

 

benefits to commence on November 8, 1988.

 

 

Defendants receive credit for all amounts of weekly

 

compensation previously paid.

 

 

Defendants pay accrued amounts in a lump sum.

 

 

Defendants pay interest pursuant to section 85.30.

 

 

Defendants pay costs of this action including the costs of

 

transcription of the arbitration hearing.

 

 

Defendants file claim activity reports pursuant to rule 343

 

IAC 3.l(2).

 

Signed and filed this ____ day of November, 1992.

 

 

 

 

 

________________________________

 

BYRON K. ORTON

 

INDUSTRIAL COMMISSIONER

 

 

Copies To:

 

 

Mr. Steven C. Jayne

 

Attorney at Law

 

5835 Grand Avenue STE 201

 

Des Moines, Iowa 50312

 

 

Mr. Frank T. Harrison

 

Attorney at Law

 

Terrace Center STE 111

 

2700 Grand Avenue

 

Des Moines, Iowa 50312

 

 

 

 

 

 

 

 

 

 

1108.50; 1806; 2206; 3001; 3002

 

Filed November 25, 1992

 

BYRON K. ORTON

 

 

 

BEFORE THE IOWA INDUSTRIAL COMMISSIONER

 

____________________________________________________________

 

:

 

ALVIN DAVIS, :

 

:

 

Claimant, :

 

:

 

vs. :

 

: File No. 898933

 

WEITZ COMPANY, :

 

: A P P E A L

 

Employer, :

 

: D E C I S I O N

 

and :

 

:

 

EMPLOYERS MUTUAL COMPANIES, :

 

:

 

Insurance Carrier, :

 

Defendants. :

 

___________________________________________________________

 

 

1108.50; 2206

 

Material aggravation of claimant's preexisting spinal stenosis

 

found where claimant required significant conservative medical

 

care subsequent to the work injury and had significant left

 

sciatica subsequent to the work injury. Claimant had had

 

intermittent preexisting left sciatica. The preexisting sciatica

 

had resolved with minimal chiropractic or medical care, however.

 

 

1806

 

Apportionment of industrial disability was inappropriate where

 

claimant had been able to continue in previous employments

 

despite preexisting, generally asymptomatic, spinal stenosis

 

until the work injury precluded claimant's return to past

 

employment.

 

 

3001; 3002

 

Weeks in which claimant was off work on account of nonpaid

 

holidays or off work on account of nonpaid time taken for

 

personal business were not representative weeks where claimant

 

was a full time employee of the employer and wage statements

 

reflected that full time employees customarily were required to

 

work 40 hours per week unless the employer chose to decrease the

 

length of the work week.

 

 

 

 

 

 

 

 

 

BEFORE THE IOWA INDUSTRIAL COMMISSIONER

 

____________________________________________________________

 

:

 

GEORGE LEWIS STOUT, :

 

:

 

Claimant, :

 

:

 

vs. :

 

: File No. 899073

 

FREEMAN DECORATING CO., :

 

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

 

Employer, :

 

: D E C I S I O N

 

and :

 

:

 

HARTFORD INSURANCE, :

 

:

 

Insurance Carrier, :

 

Defendants. :

 

___________________________________________________________

 

 

STATEMENT OF THE CASE

 

 

This is a proceeding in arbitration brought by George

 

Lewis Stout, claimant, against Freeman Decorating Company,

 

employer, and Hartford Insurance Company, insurance carrier,

 

defendants, to recover benefits under the Iowa Workers'

 

Compensation Act as a result of an injury sustained on

 

October 28, 1988. This matter came on for hearing before

 

the undersigned deputy industrial commissioner on July 14,

 

1992, in Des Moines, Iowa. The record was considered fully

 

submitted at the close of the hearing. The claimant was

 

present and testified. Also present and testifying were

 

Vera Stout, Jim Zaugg and Donald Acott. The documentary

 

evidence identified in the record consists of joint exhibits

 

1 through 16 and defendants' exhibits A and B.

 

 

ISSUES

 

 

Pursuant to the prehearing report and order dated July

 

14, 1992, the parties have presented the following issues

 

for resolution:

 

 

1. Whether claimant's injury on October 28, 1988, is a

 

cause of temporary disability;

 

 

2. The extent of entitlement to weekly compensation

 

for temporary total or hearing period benefits;

 

 

3. The extent of entitlement to weekly compensation

 

for permanent disability benefits, if defendants are liable

 

for the injury;

 

 

4. The type of permanent disability, if the injury is

 

found to be a cause of permanent disability;

 

 

5. The commencement date of permanent partial

 

disability, in the event such benefits are awarded;

 

 

 

 

Page 2

 

 

 

 

 

6. Whether claimant is entitled to medical benefits

 

under Iowa Code section 85.27; and

 

 

7. Whether the expenses incurred for medical treatment

 

were reasonable and necessary.

 

 

FINDINGS OF FACT

 

 

The undersigned has carefully considered all the

 

testimony given at the hearing, arguments made, evidence

 

contained in the exhibits herein, and makes the following

 

findings:

 

 

Claimant was born on February 2, 1937, and completed

 

the sixth grade of school. He testified that he cannot read

 

or write. He has had a speech problem all of his life and

 

is 90 percent deaf in the left ear. Claimant's work

 

experience has been primarily as a manual laborer.

 

 

On October 28, 1988, while working for employer,

 

claimant hit his left knee on a 1000-pound box of steel. He

 

continued to work that night and the next day. On Monday,

 

October 31, 1988, he saw the company doctor, Scott Q.

 

Carver, M.D. Dr. Carver took claimant off work and saw him

 

again on November 2, 1988. He prescribed pain medication

 

and referred him to Scott B. Neff, D.O., for orthopedic

 

consultation (exhibit 9).

 

 

Dr. Neff saw claimant on November 2, 1988. X-rays were

 

taken of the left knee and showed some degenerative changes.

 

His knee was stable on examination and Dr. Neff felt

 

claimant did not have a significant injury. He diagnosed a

 

soft tissue contusion with nerve symptoms. Conservative

 

therapy was started. Subsequently, a bone scan was taken

 

which was markedly abnormal. It revealed an intense uptake

 

in the medial-tibial plateau, indicating an occult

 

cancellous tibial plateau fracture not visible on plain

 

x-rays. Because claimant's symptoms were getting worse and

 

he was having mechanical symptoms of giving way and

 

buckling, Dr. Neff recommended a diagnostic arthroscopy and

 

possible meniscectomy (ex. 5, pages 34-35).

 

 

On January 12, 1989, claimant was admitted to Mercy

 

Hospital Outpatient Surgery Center with complaints of left

 

knee pain. Dr. Neff performed a diagnostic arthroscopy.

 

The suprapatellar compartment showed mild chondromalacia.

 

The real pathology was found in the medial compartment.

 

There was fresh articular surface chondral fracture in the

 

weight-bearing surface of the medialfemoral condyle in the

 

edge of the tibial surface. The meniscus showed no evidence

 

of tear and a menisectomy was not warranted (ex. 8, p. 8;

 

ex. 5, p. 33).

 

 

Claimant was seen by Dr. Neff for follow-up evaluation

 

on February 2, 1989. He presented with complaints of

 

tingling and numbness in his left leg and significant pain

 

and grinding in his left knee. He was noted to have

 

patellofemoral crepitus with motion and a sensation of

 

snapping or popping inside the knee. Further diagnostic

 

studies were ordered (ex. 5, p. 32).

 

 

 

Page 3

 

 

 

 

 

 

On October 24, 1989, a bone scan was taken of

 

claimant's knee and showed significantly increased uptake.

 

A CT scan of the lumbar spine was also taken. The study was

 

abnormal and indicated advanced degeneration of the L5-S1

 

disc with mild degenerative changes in the facets at L4-5.

 

Moderate central/left sided L4-5 disc protrusion was also

 

evident (ex. 8, pp. 3-6).

 

 

Dr. Neff referred claimant to William R. Boulden, M.D.,

 

for evaluation of his back symptoms. Dr. Boulden saw

 

claimant on March 16, 1989. After conducting a clinical

 

examination and reviewing laboratory findings, Dr. Boulden's

 

working diagnosis was, "significant degenerative arthritis

 

of the left knee that is aggravating the underlying

 

degenerative changes of the lumbar spine." (ex. 5, p. 30).

 

 

Dr. Neff reported that claimant's knee problem could be

 

addressed from an orthopedic standpoint either with fusion,

 

upper tibial osteotomy or knee replacement. However, Dr.

 

Neff was against knee replacement because of claimant's

 

young age. He referred claimant to Rodney E. Johnson, M.D.,

 

for a second opinion. Dr. Johnson recommended a

 

conservative course of treatment and agreed that a tibial

 

osteotomy was most appropriate at this time since it

 

preserves the joint and allows some relief of symptoms and

 

an increase in activity (ex. 5, pp. 9, 29).

 

 

Claimant was seen by Dr. Neff for follow-up examination

 

on April 5, 1989. He reported, "I do not believe this

 

patient should undergo knee replacement at this time because

 

of his age, weight, work requirements and because there is

 

not enough pathology in his knee to warrant it."

 

Conservative therapy was recommended (ex. 5, p. 28).

 

 

Dr. Neff recommended a repeat bone scan in July to

 

determine whether any changes were occurring in the knee.

 

On May 26, 1989, Dr. Neff released claimant to light duty

 

work commencing May 30, 1989. He was told to avoid

 

squatting, twisting, repetitive lifting of any type, and any

 

type of repetitive stair climbing or descent (ex. 5, pp. 23,

 

25-26).

 

 

Claimant testified that he reported to work on May 30,

 

1989, and was assigned by employer to work in the repair

 

department. He worked until June 9, 1989, when he

 

voluntarily quit because he was moving to Anderson, Indiana.

 

 

Arrangements were made by insurance carrier for

 

claimant to undergo a functional capacity assessment by

 

Thomas W. Bower, L.P.T., on June 5, 1989. On examination,

 

claimant demonstrated an inability to assume a squat

 

position for any sustained period of time. He had increased

 

pain over the kneecap with any kind of activity requiring

 

prolonged standing or sustained flexion. Lifting ability

 

was limited to 22 pounds on the basis of his technique and

 

orthopedic problem. He was also limited to pushing 28

 

pounds, pulling 34 pounds and carrying 22 pounds with a

 

noticeable limp. It was difficult for him to maintain a

 

sitting posture for any sustained period of time because of

 

 

 

Page 4

 

 

 

 

 

increased knee pain while in a flexed position. It was

 

determined that he sustained approximately a 30 percent loss

 

of range of motion of the left knee in flexion and an

 

overall 14 percent impairment to the left lower extremity

 

(ex. 6, pp. 1-2).

 

 

While in Indiana, claimant was sent by insurance

 

carrier to Arthur Lorber, M.D., for evaluation on October 3,

 

1989. Claimant presented with knee pain after walking four

 

or five blocks. On examination, Dr. Lorber reported that

 

claimant's gait was unremarkable. He had full range of

 

motion of his hips and knees with no left knee effusion,

 

crepitation or instability. An x-ray examination of the

 

left knee was unremarkable. He felt claimant's medical

 

status was quiescent and gave him a 15 percent impairment of

 

the left lower extremity (ex. 4, pp. 3-5).

 

 

Subsequently, Dr. Lorber received claimant's past

 

medical records. Based on the data contained therein, Dr.

 

Lorber reported on October 20, 1989, that, in his opinion,

 

"...the patient's problems pre-existed his alleged

 

industrial injury and were of long standing [sic] in

 

nature." He felt that the alleged injury to his knee was of

 

questionable significance. Additionally, he indicated that,

 

"Degenerative changes have been found in the lumbar spine,

 

however in my opinion it is difficult to correlate these

 

with the patient's alleged industrial injury." (ex. 4, pp.

 

1-2).

 

 

Claimant requested a second opinion by Lee M. Cattell,

 

Jr., M.D., which was authorized by insurance carrier. Dr.

 

Cattell saw claimant on December 4, 1989. After reviewing

 

claimant's medical history, noting his complaints, and

 

performing a physical examination, Dr. Cattell recommended

 

an MRI examination of the left knee. He agreed with Dr.

 

Neff that a high tibial osteotomy and not knee replacement

 

was appropriate at this time. He gave claimant a 20 percent

 

permanent partial impairment of the left leg (ex. 3).

 

 

Claimant testified that he has not worked nor looked

 

for work since voluntarily terminating his position with

 

employer on June 9, 1989. Instead, in January 1990, he

 

applied for social security disability benefits. Claimant

 

received a favorable determination on November 9, 1990, and

 

was awarded retroactive benefits from April 19, 1989. The

 

record does not contain a copy of the social security

 

disability determination. Claimant testified that he

 

receives $768 per month in social security disability

 

benefits.

 

 

Without authorization from employer/insurance carrier,

 

claimant consulted with Steven T. Hampton, M.D., on February

 

26, 1991. He presented with complaints of bilateral knee

 

pain. Dr. Hampton reported that x-ray examination revealed

 

degenerative osteoarthritic changes of both knees,

 

especially in the patella-femoral joint, as well as the

 

tibial femoral joint. In addition, tibial spine impingement

 

bilaterally was evident. Dr. Hampton was of the opinion

 

that a high tibial osteotomy would not benefit claimant due

 

to his patellofemoral pain and a total knee arthroplasty was

 

 

 

Page 5

 

 

 

 

 

preferred. He indicated that this procedure would hinder

 

claimant's ability to work at any heavy physical labor job

 

(ex. 1, pp. 3-4).

 

 

On April 11, 1991, Dr. Hampton communicated with

 

claimant's attorney, Mr. W. Michael Murray, notifying him

 

that a total knee arthroplasty would be performed on April

 

18, 1991, at St. John's Medical Center in Anderson, Indiana.

 

He indicated that he was proceeding with the procedure under

 

claimant's Medicare policy (ex. 1, pp. 1-2).

 

 

Dr. Hampton admitted claimant to St. John's hospital on

 

April 18, 1991, with an admitting diagnosis of degenerative

 

osteoarthritis of the left knee. He performed a left total

 

knee arthroplasty. After a course of physical therapy,

 

claimant was discharged home on April 27, 1991 (ex. 2).

 

 

Dr. Hampton gave claimant a presurgical disability

 

rating of 40 percent, but no postsurgical rating (ex. 1, p.

 

5).

 

 

Finally, at the request of employer/insurance carrier,

 

claimant was examined by Dr. Neff on August 19, 1991. Dr.

 

Neff reported that x-rays taken by Dr. Hampton showed

 

degenerative osteoarthritis of both knees in the

 

patellofemoral joint as well as in the medical tibial

 

femoral joint. However, when the bone scan was performed in

 

November 1988, it revealed intensely increased uptake in the

 

medial tibial plateau and over the patella. He felt there

 

was no way, according to claimant's history, that the

 

patella was injured or involved in the October 28, 1988,

 

injury. He agreed with Dr. Hampton's assessment that an

 

upper tibial osteotomy would not have helped claimant

 

because of his patellofemoral disease since this procedure

 

is designed to decrease the weight of the medial compartment

 

only. On August 19, 1991, claimant presented with

 

complaints of knee pain, diminished motion and discomfort in

 

the right knee. Dr. Neff indicated that claimant has a 40

 

percent impairment to the left lower extremity. However, it

 

was his opinion that based on claimant's history, x-ray

 

changes, bone scan findings, and arthroscopic findings, only

 

5 percent of his impairment is related to his injury and 35

 

percent is related to passage of time, aging and

 

degenerative arthritis. He also indicated that claimant's

 

degenerative spinal disease is unrelated to his knee

 

contusion injury. He opined that claimant's spine disease

 

was related to genetic predisposition, body weight, total

 

activity, and the passage of time (ex. 5, pp. 1-3).

 

 

CONCLUSIONS OF LAW

 

 

The parties do not dispute that claimant sustained an

 

injury on October 28, 1988, which arose out of and in the

 

course of employment with employer. The parties do not

 

agree as to the extent of entitlement to weekly compensation

 

for temporary total disability and permanent partial

 

disability and the type of permanent disability. Defendants

 

contend that claimant's injury is confined to his left knee

 

while claimant contends that his injury extends into the

 

body as a whole.

 

 

 

Page 6

 

 

 

 

 

 

The first issue to be determined is whether claimant's

 

knee injury is confined to his left lower extremity of

 

extends into the body as a whole.

 

 

Claimant contends that as a result of his left knee

 

injury he sustained further disability to his back which was

 

proximately caused by the original injury. He argues that

 

his back disability is a sequela of his knee injury and the

 

entire injury should be compensated industrially.

 

 

The Iowa Supreme Court in Oldham v. Scofield and Welch,

 

222 Iowa 764, 767, 266 N.W. 480, 482 (Iowa 1936) stated as

 

follows:

 

 

The question of whether the disability sustained

 

by the employee shall be attributed to the first

 

accident or to the later accidents depends on

 

whether or not the disability sustained was caused

 

by a change in the original condition, or by a

 

recurrence of the original injury, or by an

 

independent and subsequent cause. If the employee

 

suffers a compensable injury and thereafter

 

suffers further disability which is the proximate

 

result of the original injury, such further

 

disability is compensable. Where an employer

 

suffers a compensable injury and thereafter

 

returns to work and, as a result thereof, his

 

first injury is aggravated and accelerated so that

 

he is greater disabled than before, the entire

 

disability may be compensated for.

 

 

The claimant has the burden of proving by a

 

preponderance of the evidence that his back symptoms are

 

causally related to the disability on which he now bases his

 

claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d

 

867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18

 

N.W.2d 607 (1945). A possibility is insufficient; a

 

probability is necessary. Burt v. John Deere Waterloo

 

Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The

 

question of causal connection is essentially within the

 

domain of expert testimony. Bradshaw v. Iowa Methodist

 

Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).

 

 

However, expert medical evidence must be considered

 

with all other evidence introduced bearing on the causal

 

connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion

 

of experts need not be couched in definite, positive or

 

unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d

 

903 (Iowa 1974). However, the expert opinion may be

 

accepted or rejected, in whole or in part, by the trier of

 

fact. Id. at 907. Further, the weight to be given to such

 

an opinion is for the finder of fact, and that may be

 

affected by the completeness of the premise given the expert

 

and other surrounding circumstances. Bodish, 257 Iowa 516,

 

133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261

 

Iowa 352, 154 N.W.2d 128 (1967).

 

 

Claimant testified that his left knee problems caused

 

back pain. He stated that he needed to use a cane

 

 

 

Page 7

 

 

 

 

 

ambulating and this caused a significant strain on his back.

 

The medical evidence reveals that claimant has had back

 

problems in the past. In November 1974 his vehicle was rear

 

ended and he sustained low back and neck pain. X-rays of

 

the lumbar spine taken on November 23, 1975, revealed very

 

minor compression fractures of the superior/interior border

 

of L4-5. John H. Kelley, M.D., claimant's treating

 

orthopedist at the time, gave him a permanent partial

 

impairment rating to the body as a whole of 8 percent as a

 

result of the auto accident in which he sustained a

 

compression fracture (ex. 11).

 

 

On September 15, 1976, claimant sustained low back pain

 

following a work-related accident. Peter D. Wirtz, M.D.,

 

orthopedist, diagnosed a chronic muscular strain of the

 

lower back area (ex. 10).

 

 

In December 1980, claimant again began having low back

 

pain following an injury at work. On January 26, 1981, he

 

was examined by Dr. Kelley and was noted to have an

 

increased lumbar lordosis. X-rays of the lumbar spine

 

revealed sacralization of the fifth lumbar vertebra and more

 

osteoporosis then one would expect as his age (ex. 11, p.

 

7). Cervical spine x-rays taken on June 21, 1982, revealed

 

some degenerative changes present manifested by some

 

spurring (ex. 12, p. 11).

 

 

More recently, on January 20, 1989, Dr. Neff reported

 

that, "He does not complain of any back difficulty. One

 

wonders if the tourniquet pressure may have caused some

 

sciatic nerve pressure, or if he is developing occult

 

disease in his spine." (ex. 5, p. 18). Dr. Neff referred

 

claimant to Dr. Boulden for evaluation of increasing back

 

pain. Prior thereto, a CT scan of the lumbar spine was

 

performed on February 24, 1989. Dr. Boulden interpreted the

 

scan as showing a degenerative bulging disc with no neural

 

impingement in the spinal canal. While there was some early

 

bony foraminal stenosis present, Dr. Boulden felt it was not

 

really significant and his symptoms were not compatible with

 

stenosis. He indicated that if claimant could be relieved

 

of knee pain and walk more level, it would take a lot of

 

stress off of his back and he would have less degenerative

 

pain (ex. 5, pp. 13-14).

 

 

Claimant underwent a diagnostic arthroscopy on January

 

12, 1989, and was noted to have degenerative changes in the

 

medial compartment of his left knee. Claimant was released

 

for light duty on May 26, 1989, and reported to work with

 

employer on May 30, 1989. He voluntarily quit on June 9,

 

1989, for reasons unrelated to his medical problems. James

 

Zaugg, general manager for employer, testified that claimant

 

was assigned to the repair room and given the job of

 

upholstering chairs. In this capacity, he was not required

 

to lift any heavy objects and could work within the

 

restrictions imposed by Dr. Neff. Between May 30, 1989 and

 

June 9, 1989, claimant made no complaints to his supervisor

 

regarding an inability to perform light duty either due to

 

knee or back pain. A physical capacity assessment made by

 

Thomas Bower, focused primarily on claimant's left knee

 

impairment. He was given a 14 percent impairment of the

 

 

 

Page 8

 

 

 

 

 

left lower extremity. Likewise, Dr. Lorber's and Dr.

 

Cattell's impairment ratings were based on claimant's left

 

knee problems only.

 

 

Claimant has numerous medical problems. Claimant has

 

not demonstrated by a preponderance of the evidence that he

 

has disabling back pain causally connected to his left knee

 

trauma. Claimant last worked for employer on June 9, 1989.

 

He has a preexisting back impairment for which he received a

 

permanent impairment rating in 1975 for very minor

 

compression fractures. Claimant has degenerative back pain

 

not attributed to his October 28, 1988, injury.

 

 

Since there is no medical evidence in the record to

 

indicate that claimant's work injury extended into the body

 

as a whole, claimant is not entitled to an award of

 

industrial disability. When the result of an injury is loss

 

to a scheduled member, the compensation payable is limited

 

to that set forth in the appropriate subdivision of Iowa

 

Code section 85.34(2). Barton v. Nevada Poultry Co., 253

 

Iowa 285, 110 N.W.2d 660 (1961). In this instance, the

 

controlling provision is section 85.34(2)(o). That section

 

provides compensation for loss of 2/3 of that part of a leg

 

between a hip joint and a knee joint, during 220 weeks.

 

 

As previously noted, claimant has impairment ratings

 

ranging from 5 percent to 40 percent. The rating given by

 

Thomas Bower and Dr. Neff on June 5, 1989, and Dr. Lorber on

 

October 20, 1989, will be given the greater weight. Dr.

 

Neff treated claimant at the time of the injury and followed

 

him through a course of conservative therapy. He performed

 

arthroscopic surgery and followed him through recuperation

 

and return to work. Accordingly, it is determined that

 

claimant has suffered a 15 percent impairment to his left

 

leg and is entitled to 33 weeks of permanent partial

 

disability benefits.

 

 

Claimant is also entitled to healing period benefits

 

since he has suffered a permanent disability. Iowa Code

 

section 85.34(1).

 

 

Healing period benefits may be characterized as that

 

period during which there is a reasonable expectation of

 

improvement of a disabling condition and ends when maximum

 

medical improvement is reached. Armstrong Tire & Rubber Co.

 

v. Kubli, Iowa App., 312 N.W.2d 60, 65 (1981). In

 

discussing the concept of healing period as contemplated by

 

Iowa Code section 85.34(1) (1991), the Kubli court observed

 

that recuperation refers to that condition in which healing

 

is complete and the extent of the disability can be

 

determined. Kubli, 312 N.W.2d at 65. The healing period

 

generally terminates at the time the attending physician

 

determines that the employee has recovered as far as

 

possible from the effects of the injury. Kubli, 312 N.W.2d

 

at 65. When a permanent rating is given, it indicates that

 

the physician does not expect the claimant to improve and

 

this conclusion meets the criteria of Iowa Code section

 

85.34(1) and Thomas v. William Knudson & Sons, Inc., 349

 

N.W.2d 124, 126 (Ia. Ct. App. 1984). The finding of a

 

termination of healing period necessarily precludes the

 

 

 

Page 9

 

 

 

 

 

discussion of the running award. Hoskins v. Quaker Oats,

 

Vol 2. No. 1 Iowa Industrial Commissioner Decisions, 181,

 

185 (App. 1985). Since the healing period contemplates an

 

inability to work, a healing period cannot start until

 

claimant leaves work. This is true even if claimant is

 

experiencing symptoms on the job but does not leave work for

 

a variety of reasons. Boyd v. Western Home, file number

 

890207 (Iowa Industrial Commissioner App. June 26, 1991).

 

 

In this instance, claimant was injured on October 28,

 

1988. He was taken off work on October 31, 1988. He

 

returned to work on May 30, 1989. Therefore, claimant is

 

entitled to healing period benefits from October 31, 1988

 

through May 29, 1989. He is entitled to permanent partial

 

disability benefits commencing on May 30, 1989.

 

 

The final issue to be determined is whether claimant is

 

entitled to medical benefits under Iowa Code section 85.27,

 

specifically, a bill for $17,282.57 incurred at St. John's

 

Medical Center in April 1991 and a bill for $5320 for

 

services rendered by Hampton Orthopedics from June through

 

September 1991.

 

 

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 the burden of proving that the fees charged for

 

such services are reasonable. Anderson v. High Rise

 

Construction Specialists, Inc., file number 850096 (Appeal

 

Decision July 31, 1990).

 

 

Claimant is not entitled to reimbursement for medical

 

bills unless claimant shows they were paid from claimant's

 

funds. See Caylor v. Employers Mut. Casualty Co., 337

 

N.W.2d 890 (Iowa Ct. App. 1983).

 

 

When a designated physician refers a patient to another

 

physician, that physician acts as the defendant employer's

 

agent. Permission for referral from defendant is not

 

necessary. Kittrell v. Allen Memorial Hospital,

 

Thirty-fourth Biennial Report of the Industrial Commissioner

 

164 (Arb. Decn. 1979) (aff'd by indus. comm'r).

 

 

An employer's right to select the provider of medical

 

treatment to an injured worker should be diagnosed,

 

evaluated, treated or other matters of professional medical

 

judgement. Assman v. Blue Star Foods, Inc., file no. 866389

 

(declaratory Ruling, May 18, 1988).

 

 

Defendants argue that the medical charges which

 

claimant has submitted are not causally related to the

 

October 28, 1988, work injury and were not authorized by

 

 

 

Page 10

 

 

 

 

 

defendants and were not reasonable and necessary care.

 

 

The record is clear that claimant did not seek

 

authorization from the defendants for treatment by Dr.

 

Hampton including total knee arthroplasty. Claimant and Dr.

 

Hampton expected Medicare to cover the costs of treatment

 

and surgery. Testimony at the hearing indicated that

 

Medicare paid claimant's hospital bill at St. John's and

 

also paid Dr. Hampton. For some reason, unknown to

 

claimant, Dr. Hampton was allegedly told to return the

 

Medicare check because his services were not covered.

 

Claimant now seeks payment from defendant insurance carrier.

 

Claimant was aware that since defendants admitted liability,

 

he needed authorization for any treatment related to his

 

left knee. He received authorization in 1989 when he was

 

evaluated by Dr. Lorber and Dr. Cattell and was familiar

 

with the procedure. One can only conclude that claimant

 

felt that his February 19, 1991, surgery was not related to

 

his workers' compensation claim and therefore, did not

 

contact insurance carrier before proceeding with surgery.

 

In any event, claimant's treatment was unauthorized.

 

 

Claimant argues that unauthorized treatment which

 

improves an employee's condition and ultimately may mitigate

 

employer's liability, may subsequently be found reasonable

 

and necessary for treatment of an injury. Even if this is

 

true, such is not the case herein. Claimant presented a

 

claim for permanent total disability benefits. Claimant has

 

not worked since voluntarily terminating his position with

 

employer on June 9, 1989. Claimant receives social security

 

disability benefits and it is highly unlikely that he will

 

ever return to the competitive job market. Surgery in

 

February 1991 has not improved claimant's condition nor

 

mitigated employer's liability and cannot be found

 

compensable.

 

 

Furthermore, claimant has not shown by a preponderance

 

of the evidence that total knee replacement was causally

 

related to his work injury rather then the result of a

 

degenerative process and arthritic changes totally unrelated

 

to that injury. Accordingly, defendants are not liable for

 

claimant's unauthorized medical expenses of $22,602.57.

 

 

ORDER

 

 

THEREFORE, IT IS ORDERED:

 

 

That defendants pay to claimant thirty point one four

 

three (30.143) weeks of healing period benefits from October

 

31, 1988 through May 29, 1989, at the rate of two hundred

 

fifty-two and 81/100 dollars ($252.81).

 

 

That defendants pay to claimant thirty-three (33) weeks

 

of permanent partial disability benefits (220 x 15%)

 

commencing May 30, 1989, at the rate of two hundred

 

fifty-two and 81/100 dollars ($252.81) per week.

 

 

That defendants receive credit for any benefits

 

previously paid.

 

 

 

 

Page 11

 

 

 

 

 

That defendants pay accrued amounts in a lump sum.

 

 

That defendants pay interest pursuant to Iowa Code

 

section 85.30.

 

 

That defendants pay costs pursuant to rule 343 IAC

 

4.33.

 

 

That defendants file claim activity reports as required

 

by the agency.

 

 

Signed and filed this ____ day of August, 1992.

 

 

 

 

______________________________

 

JEAN M. INGRASSIA

 

DEPUTY INDUSTRIAL COMMISSIONER

 

 

Copies to:

 

 

Mr. W. Michael Murray

 

Attorney at Law

 

2323 Grand Ave

 

Des Moines, Iowa 50312

 

 

Mr. Marvin Duckworth

 

Ms. Valerie Landis

 

Attorneys at Law

 

2700 Grand Ave STE 111

 

Des Moines, Iowa 50312

 

 

 

 

 

 

 

 

 

 

 

51803.1 51802 51803 52700

 

Filed August 5, 1992

 

Jean M. Ingrassia

 

 

 

BEFORE THE IOWA INDUSTRIAL COMMISSIONER

 

____________________________________________________________

 

 

GEORGE LEWIS STOUT,

 

 

Claimant,

 

 

vs.

 

File No. 899073

 

FREEMAN DECORATING CO.,

 

A R B I T R A T I O N

 

Employer,

 

D E C I S I O N

 

and

 

 

HARTFORD INSURANCE,

 

 

Insurance Carrier,

 

Defendants.

 

___________________________________________________________

 

 

51803.1

 

Claimant's alleged back impairment not found to be a sequela

 

of his right knee injury. Therefore, injury was not

 

compensated industrially but based on the schedule. Iowa

 

Code section 85.34(2)(o).

 

 

51802

 

Claimant found entitled to healing period benefits the first

 

day he was taken off work until he was released to return to

 

work by his treating physician.

 

 

51803

 

Claimant found entitled to 30.8 weeks (220 x 14%) of

 

permanent partial disability benefits.

 

 

52700

 

Unauthorized treatment and surgery found not to be

 

compensable because it did not improve claimant's medical

 

condition.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

before the iowa industrial commissioner

 

____________________________________________________________

 

:

 

KENNETH CHURCHILL, :

 

:

 

Claimant, :

 

:

 

vs. :

 

: File No. 899119

 

MARV PESEK MASONRY, INC., :

 

: A P P E A L

 

Employer, :

 

: D E C I S I O N

 

and :

 

:

 

WEST BEND MUTUAL, :

 

:

 

Insurance Carrier, :

 

Defendants. :

 

___________________________________________________________

 

The record, including the transcript of the hearing before the

 

deputy and all exhibits admitted into the record, has been

 

reviewed de novo on appeal. The decision of the deputy filed

 

March 13, 1991 is affirmed and is adopted as the final agency

 

action in this case.

 

Claimant shall pay the costs of the appeal, including the

 

preparation of the hearing transcript.

 

Signed and filed this ____ day of November, 1991.

 

 

 

 

 

________________________________

 

BYRON K. ORTON

 

INDUSTRIAL COMMISSIONER

 

 

Copies To:

 

 

Mr. Robert F. Wilson

 

Attorney at Law

 

810 Dows Bldg.

 

Cedar Rapids, Iowa 52401

 

 

Ms. Vickie L. Seeck

 

Attorney at Law

 

600 Union Arcade Bldg.

 

111 E. 3rd St.

 

Davenport, Iowa 52801

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

9998

 

Filed November 18, 1991

 

BYRON K. ORTON

 

MDM

 

before the iowa industrial commissioner

 

____________________________________________________________

 

:

 

KENNETH CHURCHILL, :

 

:

 

Claimant, :

 

:

 

vs. :

 

: File No. 899119

 

MARV PESEK MASONRY, INC., :

 

: A P P E A L

 

Employer, :

 

: D E C I S I O N

 

and :

 

:

 

WEST BEND MUTUAL, :

 

:

 

Insurance Carrier, :

 

Defendants. :

 

___________________________________________________________

 

 

 

9998

 

Summary affirmance of deputy's decision filed March 13,

 

1991.

 

 

 

 

Page 1

 

 

 

 

 

 

before the iowa industrial commissioner

 

____________________________________________________________

 

:

 

KENNETH CHURCHILL, :

 

:

 

Claimant, :

 

:

 

vs. :

 

: File No. 899119

 

MARV PESEK MASONRY, INC., :

 

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

 

Employer, :

 

: D E C I S I O N

 

and :

 

:

 

WEST BEND MUTUAL, :

 

:

 

Insurance Carrier, :

 

Defendants. :

 

 

___________________________________________________________

 

 

STATEMENT OF THE CASE

 

 

This is a proceeding in arbitration brought by Kenneth

 

Churchill as a result of injuries to his left shoulder which

 

occurred on September 27, 1988. Defendants denied compensability

 

for the injury, paid weekly benefits, but paid no medical

 

benefits. Defendants objected to claimant's offer of rebuttal

 

exhibits 5 and 6 on the basis that said exhibits were not listed

 

in the exhibit list served 15 days prior to hearing. The

 

objection is overruled as exhibits 5 and 6 were for rebuttal of

 

evidence brought forth by defendants.

 

 

The case was heard and fully submitted at Cedar Rapids,

 

Iowa, on February 18, 1991. The record in the proceeding

 

consists of claimant's exhibits 1 through 6, defendants' exhibits

 

A through F, testimony from claimant, Mardean Cook and Terry

 

Pesek.

 

 

issues

 

 

The issues presented for determination are as follows:

 

 

1. Arising out of and in the course of employment;

 

 

2. Entitlement to temporary total disability and casual

 

connection;

 

 

3. Rate of compensation; and

 

 

4. Entitlement to Iowa Code sections 85.27 and 85.39

 

benefits.

 

 

findings of fact

 

 

Having considered all the evidence received the following

 

findings of fact are made:

 

 

 

 

Page 2

 

 

 

 

 

Claimant, Kenneth Churchill, is a construction laborer and a

 

member of a union hiring hall. On September 20, 1988, he

 

accepted work from a neighboring union hiring hall and started

 

work for employer, Marv Pesek Masonry, Inc. Claimant alleged an

 

injury to his left shoulder on September 27, 1988, arising out of

 

and in the course of employment with employer.

 

 

A chronological review of the evidence presented is as

 

follows:

 

 

On September 20, 1988, claimant began working for employer

 

as a block tender. His duties generally required the lifting and

 

carrying of blocks which weighed 48 to 53 pounds. After

 

finishing the first day of work, which lasted five hours,

 

claimant stopped by the VA clinic on his way home. He informed

 

the VA staff that he had jammed his neck against the roll bar of

 

a pickup truck eight days earlier (exhibit C). Claimant stated

 

that he had left neck and shoulder pain that is constant and

 

wakes him up at night (ex. C).

 

 

Claimant returned to work with employer on September 21,

 

1988, and continued to perform his duties as a block tender

 

working eight-hour days. He also worked eight hours on September

 

22 and 23, 1988. On September 23, 1988, he again returned to the

 

VA hospital while on his way home. He gave a history of jamming

 

his neck 10 days earlier with continued left shoulder pain which

 

had increased since September 20, 1988 (exs. E & F). Claimant

 

was instructed to avoid heavy lifting and return to the clinic as

 

needed (ex. F).

 

 

Claimant then went to W.B. Roudybush, M.D., on Saturday,

 

September 24, 1988, and received a steroid injection. Claimant

 

returned to work on Monday, September 26, 1988, and continued to

 

perform his regular duties for eight hours. He did not go to

 

work on September 27, 1988, due to another doctor's visit for the

 

left shoulder pain. He testified that he was told by the doctor

 

to refrain from work for two weeks after September 27, 1988.

 

Claimant worked eight hours each day for the remaining three days

 

of that week.

 

 

Claimant also began treating with T.M. Lorber, D.C., on

 

September 26, 1988. The diagnosis was injury to shoulder from

 

overuse after initial muscular strain and aggravation to joint

 

capsule (ex. 2). Dr. Lorber referred claimant to a medical

 

doctor for a steroid injection. It should be noted that Dr.

 

Lorber did not state that the overuse came from work performed

 

for the employer.

 

 

Claimant worked eight hours per day on October 3, 4, and 5,

 

1988. He again missed work on October 6, 1988 due to the left

 

shoulder pain. Claimant returned to his work again on October 7

 

and worked eight hours. Claimant continued on with his working

 

full days October 10 through 14.

 

 

Claimant returned to the VA clinic on October 17, 1988, and

 

was instructed to refrain from work. He gave a history to the VA

 

personnel on October 17, 1988, that he injured his shoulder three

 

week ago lifting 40-pound blocks (ex. 4).

 

 

Claimant never returned to work with employer after October

 

 

 

Page 3

 

 

 

 

 

17, 1988.

 

 

Claimant returned to the VA medical center on October 27,

 

1988, and gave a history of a shoulder injury one month ago, when

 

lifting 46-pound blocks above the head (ex. 4).

 

 

On October 27, 1988, the VA doctors diagnosed the shoulder

 

problem as cellulitis with possible abscess (ex. 4). Claimant

 

had surgery on the left shoulder on October 28, 1988, so as to

 

treat the infection. He underwent a period of convalescence and

 

was discharged from care on February 21, 1989.

 

 

The first issue to be resolved is whether claimant's left

 

shoulder injury arose out of and in the course of employment. In

 

a more simple form, the issue is whether the work for employer

 

caused the shoulder abscess. Claimant has the burden of proving

 

by a preponderance of the evidence that the shoulder injury is

 

work related.

 

 

In the case at hand, claimant clearly had a preexisting

 

shoulder injury which occurred at least eight days prior to

 

starting work for employer. Claimant initiated treatment for the

 

left shoulder on September 20, 1988, which was the first day of

 

work with employer. He saw doctors on the following dates for

 

left shoulder treatment during the period of employment in

 

question.

 

 

 

9-20-88 VA Clinic

 

9-23-88 VA Clinic

 

9-24-88 Dr. Roudybush

 

9-26-88 Dr. Lorber

 

9-27-88 Per claimant's testimony,

 

doctor unknown

 

9-30-88 Dr. Roudybush

 

9-30-88 Dr. Lorber

 

10-06-88 Per claimant's testimony,

 

doctor unknown

 

10-08-88 Dr. Lorber

 

10-12-88 Dr. Lorber

 

10-14-88 VA per claimant's

 

testimony

 

10-17-88 VA Clinic

 

 

 

Claimant vehemently contends that the left shoulder problem

 

was caused by the work performed for employer which consisted of

 

lifting blocks that weighed over 40 pounds. Employer argues that

 

the injury preexisted the work and the resulting disability is

 

not compensable.

 

 

Claimant choose September 27, 1988, as the injury date.

 

However, just four days earlier he was complaining of a left

 

shoulder injury that started prior to his beginning work for

 

employer. No clear break in treatment occurred between September

 

20, 1988 and September 27, 1988.

 

 

Defendants retained Gay R. Anderson, M.D., to review the

 

medical records. Dr. Anderson opined that claimant developed a

 

recurrent inflammation in his left shoulder related to the

 

 

 

Page 4

 

 

 

 

 

incident which occurred on or about September 13, 1988, before

 

the start of work with employer (ex. A, p. 2). Dr. Anderson

 

found no relationship between the work for employer and

 

claimant's left shoulder problem.

 

 

The evidence points to the fact that from the first day of

 

work for employer to the last day of employment, claimant was

 

under active medical treatment for the left shoulder problem.

 

This combined with Dr. Anderson's opinion severely clouds the

 

issue of causation. It is found that claimant has failed to

 

prove by a preponderance of the evidence that the left shoulder

 

injury was caused by his work for employer. Claimant has failed

 

to prove an injury arising out of and in the course of employment

 

with employer on September 27, 1988.

 

 

conclusions of law

 

 

Claimant has the burden of proving by a preponderance of the

 

evidence that he received an injury on September 27, 1988, which

 

arose out of and in the course of his employment. McDowell v.

 

Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v.

 

Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).

 

 

The words "out of" refer to the cause or source of the

 

injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68

 

N.W.2d 63 (1955).

 

 

The words "in the course of" refer to the time and place and

 

circumstances of the injury. McClure v. Union et al. Counties,

 

188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63

 

(1955).

 

 

However, expert medical evidence must be considered with all

 

other evidence introduced bearing on the causal connection. Burt

 

v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d

 

732. The opinion of experts need not be couched in definite,

 

positive or unequivocal language. Sondag v. Ferris Hardware, 220

 

N.W.2d 903 (Iowa 1974). However, the expert opinion may be

 

accepted or rejected, in whole or in part, by the trier of fact.

 

Id., at 907. Further, the weight to be given to such an opinion

 

is for the finder of fact, and that may be affected by the

 

completeness of the premise given the expert and other

 

surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa

 

516, 133 N.W.2d 867 (1965); See also Musselman, 261 Iowa 352, 154

 

N.W.2d 128 (1967).

 

 

Claimant has failed to prove by a preponderance of the

 

evidence that he sustained an injury on September 27, 1988, which

 

arose out of and in the course of employment with employer.

 

 

order

 

 

IT IS THEREFORE, ORDERED:

 

 

That claimant take nothing from these proceedings.

 

 

Claimant's petition is dismissed.

 

 

It is further ordered that the costs of this action are

 

assessed against claimant pursuant to rule 343 IAC 4.33.

 

 

 

Page 5

 

 

 

 

 

 

Signed and filed this ____ day of March, 1991.

 

 

 

 

 

______________________________

 

MARLON D. MORMANN

 

DEPUTY INDUSTRIAL COMMISSIONER

 

 

Copies to:

 

 

Mr. Robert F. Wilson

 

Attorney at Law

 

810 Dows Bldg

 

Cedar Rapids, IA 52401

 

 

Ms. Vickie Seeck

 

600 Union Arcade Bldg

 

111 E 3rd St

 

Davenport, IA 52801

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

5-1100

 

Filed March 13, 1991

 

MARLON D. MORMANN

 

before the iowa industrial commissioner

 

____________________________________________________________

 

:

 

KENNETH CHURCHILL, :

 

:

 

Claimant, :

 

:

 

vs. :

 

: File No. 899119

 

MARV PESEK MASONRY, INC., :

 

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

 

Employer, :

 

: D E C I S I O N

 

and :

 

:

 

WEST BEND MUTUAL, :

 

:

 

Insurance Carrier, :

 

Defendants. :

 

___________________________________________________________

 

 

5-1100

 

Claimant alleged an injury to his shoulder after one week of

 

work with employer. Medical records revealed that claimant

 

injured his shoulder prior to starting work for employer and

 

treatment was continuous up and until the date of the

 

alleged injury. Claimant failed to prove injury arose out

 

of and in the course of employment.

 

 

 

 

Page 1

 

 

 

 

 

 

before the iowa industrial commissioner

 

____________________________________________________________

 

:

 

JERRY PETERSON, :

 

:

 

Claimant, :

 

:

 

vs. :

 

: File No. 899529

 

JOHN MORRELL & COMPANY, :

 

: 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. :

 

___________________________________________________________

 

 

 

 

statement of the case

 

 

This is a proceeding in arbitration brought by Jerry

 

Peterson, claimant, against John Morrell & Company,

 

employer, and National Union Fire Insurance Company,

 

insurance carrier, defendants, for benefits as the result of

 

an injury that occurred on July 19, 1988. A hearing was

 

held in Sioux City, Iowa, on February 5, 1991, and the case

 

was fully submitted at the close of the hearing.

 

 

The record consists of the testimony of claimant, Randy

 

Bailey; and July Peterson, claimant's wife; joint exhibits 1

 

through 76; and, claimant's exhibits A, B, and C.

 

 

In accordance with the prehearing report, the following

 

issues are to be resolved:

 

 

1. Whether claimant is entitled to permanent partial

 

disability benefits;

 

 

2. Whether claimant is entitled to reimbursement for

 

an independent medical examination under Iowa Code section

 

85.39.

 

 

findings of fact

 

 

The undersigned deputy, having heard the testimony and

 

considered all of the evidence, finds the following facts:

 

 

The claimant was 46 years old at the time of the

 

hearing. He is not a high school graduate, having fully

 

completed only the tenth grade in high school. Claimant

 

obtained a D average while in high school, experiencing

 

particular problems in math and English courses. He has

 

attempted for four years to obtain his GED, but has been

 

 

 

Page 2

 

 

 

 

 

unable to satisfactorily complete the courses necessary for

 

the program.

 

 

Claimant's work history is varied, and consists mostly

 

of low paying laborer-type positions. When claimant left

 

high school, he worked on the dock for Sears in Sioux City,

 

Iowa. His duties included sweeping and showing customers

 

where merchandise was located. He earned $3.00 per hour.

 

 

Claimant joined the Marines in 1965, and received an

 

honorable discharge in 1968. While in the service, he

 

received no special training other than infantry work.

 

 

From 1968 to 1970, claimant worked in a muffler shop in

 

California. He earned $5.50 per hour.

 

 

In late 1970, claimant returned to Sioux City, Iowa,

 

and worked at the Metz Bakery, earning $5.00 per hour.

 

 

After six months, claimant began to work for Iowa Beef

 

Processors for $5.50 per hour. His job duties included

 

pulling fat from meat and cleaning floors.

 

 

After working five years at IBP, claimant sought

 

employment at Floyd Valley, a packing house. This job

 

required him to run a Whizard knife to trim fatbacks.

 

Claimant worked for this employer for nine years, at which

 

time the plant closed.

 

 

Claimant began to work for defendant employer on April

 

4, 1986. Claimant described his health, prior to employment

 

with defendant, as good, having no prior major job-related

 

accidents or injuries. Claimant did relate a prior knee

 

injury and minor cuts that required one day off of work on

 

various occasions, but none of the accidents resulted in

 

workers' compensation benefits.

 

 

While working for the defendant, claimant was injured

 

on July 19, 1988. He was performing his job duties at the

 

time, which he described as "forty-fiving bellies." This

 

position required him to cut meat off of the bottom of each

 

hog belly at a forty-five degree angle. He worked on

 

between 800 to 1600 bellies per hour. Claimant was required

 

to stand on a platform three feet off of the floor to

 

perform these duties.

 

 

Claimant was injured when he stepped from the platform

 

to the floor, and slipped on a piece of fat. He fell, and

 

landed on his lower back and buttocks.

 

 

Initially, claimant felt no pain, just a "jamming"

 

sensation, as though "everything [in his back] had been

 

pushed together." He went to the in-plant company nurse,

 

who treated the problem with aspirins.

 

 

Eventually, claimant was sent to a doctor. Although

 

claimant testified that he saw a company doctor

 

approximately one week after the accident, the evidence

 

submitted indicates that the first time he saw a doctor for

 

this injury was on October 11, 1988, when he saw Milton N.

 

 

 

Page 3

 

 

 

 

 

Grossman, M.D. (Joint Exhibit 4). At that time, claimant

 

complained of pain in his mid-back and cervical areas. Dr.

 

Grossman imposed an ten pound lifting restriction, and

 

limited claimant's walking or standing to six to eight hours

 

per day. Claimant also to limit his bending, kneeling and

 

shoulder level reaching. (Jt. Ex. 3). Claimant returned to

 

work the same day. (Jt. Ex. 4).

 

 

Claimant returned to Dr. Grossman on October 13, 1988,

 

and complained of pain and stiffness in the lumbar region,

 

and burning sensations in the mid-back area. He was unable

 

to straighten his back, and walking was difficult. He was

 

taken off of work. (Jt. Ex. 5).

 

 

Claimant returned to Dr. Grossman on October 17, 1988.

 

Although the office notes are difficult to read, it appears

 

claimant had similar complaints as on prior visits, and that

 

x-rays taken of the spine were negative. He was treated

 

with bed rest and Zydon, and Dr. Grossman diagnosed a sprain

 

of the L-S spine. He remained off of work. (Jt. Ex. 8).

 

 

Claimant requested care from a chiropractor, and the

 

defendant authorized treatments by Roger Spencer, D.C. Dr.

 

Spencer also diagnosed acute lumbosacral radiculoneurologia

 

(strain-sprain). He prescribed manipulations,

 

electro-therapy and a lumbar support. Claimant remained off

 

of work. (Jt. Ex. 9).

 

 

Claimant continued treatment with Dr. Spencer during

 

October and November of 1988. Dr. Spencer's diagnoses and

 

treatments remained the same: acute strain of the

 

lumbosacrial area; manipulations and electro-therapy. (Jt.

 

Ex. 11-20).

 

 

Claimant was released to return to light duty work on

 

November 28, 1988. (Jt. Ex. 20).

 

 

The record is unclear as to the requirements of the

 

light duty work claimant was to perform, although he

 

testified that within two months, he went back to work at

 

the same job he held prior to the injury of July 19, 1988,

 

which was the "forty-fiving bellies" job. And, although the

 

evidence shows claimant experienced some physical problems

 

when he first returned to work, the low-back and mid-back

 

complaints disappear after December 22, 1988. The records

 

indicate claimant continued to request Tylenol, but he also

 

asked for Cepacol and Pepto [Bismol]. (Jt. Ex. 21).

 

 

The record next indicates medical treatment for an

 

injury which occurred on June 1, 1989. It should be noted

 

that claimant has filed original notices and petitions for

 

alleged injuries on June 1, 1989; June 21, 1989; October 30,

 

1989; May 18, 1990. Although these injuries will not be

 

addressed in this decision, the undersigned reviewed all of

 

the exhibits offered and received at the hearing in arriving

 

at this decision, and the following notations are helpful in

 

rendering the decision.

 

 

Claimant sought medical treatment on June 28, 1989

 

when, as the notes state, he reinjured his back on the same

 

 

 

Page 4

 

 

 

 

 

day. (Jt. Ex. 22 & 23) (duplicate). He was treated by P.

 

A. Fee, M.D., who restricted his activities of lifting not

 

more than 20 pounds and to avoid repetitive bending,

 

twisting, turning and stooping until July 5, 1989. (Jt. Ex.

 

24).

 

 

On July 13, 1989, claimant sought treatment from D. M.

 

Youngblade, M.D.,(an associate of Dr. Fees). He continued

 

to see Drs. Fee and Youngblade throughout June and July of

 

1989. He was released to return to light duty work on July

 

6, 1989. (Jt. Ex. 25-27).

 

 

Eventually, he came under the care of Quentin J.

 

Durward, M.D. His initial examination notes indicate:

 

 

I think this man has two problems. Firstly, he

 

has a probable disk bulge irritating either the

 

L-5 or S-1 nerve on the right side giving him pain

 

in his leg. Secondly, he has meralgia

 

paresthetica.

 

 

Dr. Durward recommended an epidural steroid and a

 

block, and isokinetic rehabilitation. (Jt. Ex. 28).

 

 

Claimant was then referred to the Back Care, Inc.

 

Clinic, and was evaluated by Bryan W. Nelson, M.D. Again,

 

the notes indicate that:

 

 

[T]he patient dates his symptoms back to 1 June

 

1989. It continued to hurt him but he was able to

 

work anyway. On 27 June 1989, he slipped on some

 

fat and fell backwards landing on his buttocks.

 

 

(Jt. Ex. 30)

 

 

The portions of the record cited above are relevant to

 

the extent that the formal medical treatment claimant

 

received after December 22, 1988 is directly related to

 

another fall he took on June 1, 1989.

 

 

Claimant has undergone numerous evaluations to

 

determine the percentage of permanent impairment he

 

sustained due to the July 19, 1988 fall, or the subsequent

 

episodes.

 

 

On or about August 9, 1990, claimant was evaluated by

 

D. Pat Luse, D.C., who rendered a 15 percent whole-person

 

impairment rating, and attributed 11 percent to the July 19,

 

1988 injury, and 4 percent to an October 30, 1989 injury.

 

 

Joel Cotton, M.D., evaluated the claimant on September

 

14, 1990, and again on December 14, 1990. He evaluated

 

claimant's impairment as 5 percent to the body as a whole,

 

but placed no restrictions on claimant's activities. He did

 

not attempt apportionment of the permanency among the

 

numerous injuries. (Jt. Ex. 68 & 71).

 

 

John Dougherty, M.D., evaluated claimant on December 7,

 

1990. He rated claimant with a 3 percent permanent

 

impairment, and apportioned the rating by stating that:

 

 

 

Page 5

 

 

 

 

 

 

[F]rom what I can gather reading his EMG,

 

apparently it is lateral femoral cutaneous nerve

 

neuropathy and that his back is of long standing

 

duration. I just cannot conceive of one single

 

incident of his fall in July of 1988 contributing

 

significantly to this present complaint.

 

 

(Jt. Ex. 70).

 

 

analysis and conclusions of law

 

 

The first issue to be addressed is whether claimant

 

received a work-related injury which caused a permanent

 

disability.

 

 

As stated earlier, claimant has been evaluated for the

 

purpose of impairment ratings on several occasions by

 

several medical practitioners.

 

 

All of these evaluations took place two or more years

 

after claimant's fall in 1988. During this two-year period,

 

claimant claims to have been injured on four more occasions,

 

each time hurting his back.

 

 

The evidence shows that claimant's condition after the

 

July 19, 1988 fall had stabilized on November 28, 1988, when

 

he was released to return to light duty work. No permanent

 

impairment was found at that time. Within two months,

 

claimant was performing his regular duties, and was not

 

receiving further medical treatment until his next fall at

 

work, on June 1, 1989.

 

 

The undersigned finds claimant's claim for permanent

 

partial disability benefits without merit. He was treated

 

primarily by Dr. Spencer, who released claimant to return to

 

work on November 28, 1988. His notes indicate that claimant

 

aggravated his condition when he slipped and twisted his low

 

back on November 18, 1988. (Jt. Ex. 19 & 20) A review of

 

the nurse's notes indicate claimant slipped and twisted his

 

back while off of work. (Jt. Ex. 21, P. 3)

 

 

Most of claimant's evaluations were based on his

 

condition as a whole. Any apportionment made was based

 

solely on claimant's opinion that he suffered a permanent

 

impairment from the July 19, 1988 fall. Dr. Luse was the

 

only evaluator to attempt apportionment, and his findings

 

are not supported by the greater weight of the medical

 

evidence.

 

 

Therefore, it is found that any permanent impairment

 

claimant may have cannot be attributed to the July 19, 1988

 

injury.

 

 

Even if claimant had been found to have sustained a

 

permanent impairment to his low back, his industrial

 

disability is nonexistent due to this injury.

 

 

Claimant returned to the same job he was performing at

 

the time of the July 19, 1988 injury. (Claimant Exhibit A,

 

 

 

Page 6

 

 

 

 

 

P. 49) As a result, he had no loss of earning capacity due

 

to the first of several back injuries.

 

 

The next issue to be decided is whether claimant is

 

entitled to reimbursement for an independent medical

 

examination pursuant to Iowa Code section 85.39.

 

 

Iowa Code section 85.39 provides, in part:

 

 

If an evaluation of permanent disability has

 

been made by a physician retained by the employer

 

and the employee believes this evaluation to be

 

too low, the employee shall, upon application to

 

the commissioner and upon delivery of a copy of

 

the application to the employer and its insurance

 

carrier, be reimbursed by the employer the

 

reasonable fee for a subsequent examination by a

 

physician of the employee's own choice, and

 

reasonably necessary transportation expenses

 

incurred for the examination. The physician

 

chosen by the employee has the right to confer

 

with and obtain from the employer-retained

 

physician sufficient history of the injury to make

 

a proper examination.

 

 

None of the company-retained physicians rendered a

 

permanent impairment rating after claimant was released to

 

return to work in November of 1988. The undersigned views

 

this as a zero percent rating. Claimant sought an opinion

 

from Dr. Luse regarding his overall condition, which falls

 

under the independent medical examination provision

 

contemplated by Iowa Code section 85.39

 

 

Therefore, defendants are responsible for payment of

 

Dr. Luse's evaluation.

 

 

order

 

 

THEREFORE, it is ordered:

 

 

That claimant is to be reimbursed for expenses incurred

 

in undergoing the independent medical examination.

 

 

That claimant take nothing further from these

 

proceedings.

 

 

Signed and filed this ____ day of April, 1991.

 

 

 

 

 

 

________________________________

 

PATRICIA J. LANTZ

 

DEPUTY INDUSTRIAL COMMISSIONER

 

 

Copies To:

 

 

Mr Harry H Smith

 

Attorney at Law

 

 

 

Page 7

 

 

 

 

 

PO Box 1194

 

Sioux City Iowa 51102

 

 

Mr Thomas M Plaza

 

Attorney at Law

 

200 Home Federal Bldg

 

PO Box 3086

 

Sioux City Iowa 51102

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1806

 

Filed April 11, 1991

 

PATRICIA J. LANTZ

 

before the iowa industrial commissioner

 

____________________________________________________________

 

:

 

JERRY PETERSON, :

 

:

 

Claimant, :

 

:

 

vs. :

 

: File No. 899529

 

JOHN MORRELL & COMPANY, :

 

: 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. :

 

___________________________________________________________

 

 

1806

 

Claimant sustained a low-back strain. The medical evidence

 

indicated that his condition has resolved after 6 months.

 

Claimant sustained four more separate injuries to his back

 

during the next two years. Several permanency ratings were

 

given after the last injury, and did not address

 

apportionment.

 

Claimant had been paid temporary total disability payments.

 

Claimant denied permanent partial payments for this injury.

 

 

 

 

 

 

 

 

BEFORE THE IOWA INDUSTRIAL COMMISSIONER

 

____________________________________________________________

 

 

ELMER PRUETT, :

 

: File Nos. 1039830

 

Claimant, : 899929

 

:

 

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

 

:

 

GRIFFIN PIPE PRODUCTS, : D E C I S I O N

 

:

 

Employer, :

 

Self-Insured, :

 

Defendant. :

 

___________________________________________________________

 

 

 

STATEMENT OF THE CASE

 

 

This is a consolidated proceeding in arbitration brought by Elmer

 

Pruett, claimant, against Griffin Pipe Products Co., employer,

 

hereinafter referred to as Griffin, a self-insured defendant, for

 

workers' compensation benefits as a result of alleged injuries on

 

October 22, 1988 and April 15, 1992. On June 20, 1994, a hearing

 

was held on claimant's petition and the matter was considered

 

fully submitted at the close of this hearing.

 

 

The parties have submitted a hearing report of contested issues

 

and stipulations which was approved and accepted as a part of the

 

record of this case at the time of hearing. The oral testimony

 

and written exhibits received during the hearing are set forth in

 

the hearing transcript.

 

 

According to the hearing report, the parties have stipulated to

 

the following matters:

 

 

1. On October 22, 1988 and again on April 15, 1992, claimant

 

received an injury arising out of and in the course of employment

 

with Griffin. However, it was agreed at hearing that claimant is

 

not seeking additional benefits in this proceeding as a result of

 

the 1988 work injury.

 

2. There is no dispute as to the healing period and defendant

 

agrees that the April 15, 1992 injury was a cause of permanent

 

disability.

 

3. If the injury is found to have caused permanent disability,

 

the type of disability is an industrial disability to the body as

 

a whole.

 

4. If permanent partial disability benefits are awarded, they

 

shall begin as of June 13, 1994.

 

5. At the time of the April 15, 1992 injury claimant's gross

 

rate of weekly compensation was $366.72; he was married; and he

 

was entitled to three exemptions. Therefore, claimant's weekly

 

rate of compensation is $239.47 according to the Industrial

 

 

 

Page 2

 

 

 

 

 

Commissioner's published rate booklet for this injury.

 

6. All requested medical benefits have been or will be paid by

 

defendant.

 

 

ISSUE

 

 

The only issue submitted by the parties for determination in this

 

proceeding is the extent of claimant's entitlement to permanent

 

disability benefits.

 

 

FINDINGS OF FACT

 

 

Having heard the testimony and considered all of the evidence,

 

the deputy industrial commissioner finds as follows:

 

A credibility finding is necessary to this decision as defendant

 

placed claimant's credibility at issue during cross examination

 

as to the nature and extent of the injury and disability. From

 

his demeanor while testifying, claimant is found credible.

 

Claimant worked for Griffin, a foundry, for over 10 years as a

 

general laborer, primarily in the yard preparing loads of steel

 

castings for transport. This involved repetitious bending,

 

stooping, climbing and heavy lifting up to 100 pounds. As

 

claimant is a large, strong person, he was frequently called upon

 

to do heavy lifting. Claimant stated that the banding of loads

 

including use of a hand held crimper which "really tore him up"

 

physically. Claimant left this employment on January 25, 1994 to

 

undergo his third surgery after which he was not allowed to

 

return to work under new activity restrictions then imposed by

 

this treating physician. Claimant has not been employed in any

 

capacity since that time.

 

Both work injuries herein involved inguinal hernias following

 

heavy lifting at work. Claimant had no prior abdominal or hernia

 

problems before 1988. The first hernia was bilateral but the

 

second only occurred on the left side. Claimant recovered after

 

the 1988 injury and repair surgery and was able to return to his

 

heavy lifting job at Griffin for over four years without

 

incident. However, heavy work activity in April 1992 resulted in

 

a recurrence of the hernia on the left requiring a second surgery

 

and absence from work beginning on April 28, 1992. Claimant

 

returned to his job at Griffin on July 1, 1992 and continued

 

working until January 25, 1994 when additional problems resulted

 

in a third surgery to repair the hernia. After the third

 

surgery, which was very complicated due to the breakdown of the

 

abdominal tissue, claimant's treating physician who performed all

 

of the surgeries, Karen Probert, M.D., concluded that claimant

 

was too much a risk of re-injury to return to his former heavy

 

work. She then imposed severe activity restrictions including a

 

20 pound lifting limit; no pushing or pulling of the banding

 

cart; no banding of any material; and no stooping to lift. This

 

effectively prevented claimant from returning to his job or any

 

other laborer job at Griffin.

 

The work injury of April 15, 1992 is found to be a cause of a

 

10-15 percent permanent partial impairment to the body as a

 

whole. The views of Dr. Probert, the primary treating physician

 

 

 

Page 3

 

 

 

 

upon which this finding is based, are uncontroverted in the

 

evidence. More important, however, are the activity restrictions

 

in this industrial case. Claimant is virtually prohibited from

 

most manual labor.

 

 

Claimant's medical condition before the work injury was excellent

 

and he had no functional impairments or ascertainable

 

disabilities. Claimant is clearly obese even for his size at 375

 

pounds. However, this obesity was long standing and never by

 

itself prevented heavy work. Before the injury, claimant was

 

able to fully perform physical tasks involving very heavy

 

lifting; repetitive lifting; bending; twisting; climbing; and

 

stooping.

 

 

Today, claimant's medical condition prevents him from returning

 

to most manual labor positions. Claimant is 59 years of age.

 

Despite remaining in school until 7th grade, claimant is

 

illiterate and is unable to read or write. Claimant credibly

 

stated that he was passed on from grade to grade in elementary

 

school despite his illiteracy. Claimant stated that he only

 

received instructions in oral form. He said that he took his

 

driver's license test orally. Claimant's testimony is

 

uncontroverted and appeared credible. Claimant's only past

 

employment consists of heavy manual labor, the type of work for

 

which he is best suited given his lack of education and

 

communication skills but also the type of work for which he is no

 

longer physically qualified. Claimant's most significant past

 

work outside of Griffin was driving steel for various railroads

 

and packinghouse work, neither of which he could perform today.

 

Claimant has very limited potential for vocational rehabilitation

 

given his lack of communication skills. However, claimant is

 

attempting to learn to read and write at the present time through

 

special schooling. However, the success of this venture is

 

highly uncertain at this juncture. Although claimant is 59 years

 

of age, he stated credibility that he fully intended to work to

 

70 years of age as he had nothing else to do. Claimant's failure

 

to be re-employed by Griffin in any capacity is clear evidence of

 

his unemployability.

 

It is specifically found that claimant is only able to perform

 

services which are so limited in quality, dependability or

 

quantify that a reasonable stable market for them does not exist.

 

It is also found that claimant is not employable in the

 

competitive labor market within the geographical area of this

 

residence. Defendant has not offered evidence to show

 

availability of suitable employment to claimant.

 

From examination of all of the factors of industrial disability,

 

it is found that the work injury of April 15, 1992 was a cause of

 

a 100 percent loss of earning capacity.

 

 

CONCLUSIONS OF LAW

 

 

Claimant must next establish by a preponderance of the evidence

 

the extent of weekly benefits for permanent disability to which

 

claimant is entitled. As the claimant has shown that the work

 

 

 

Page 4

 

 

 

 

injury was a cause of permanent physical impairment or limitation

 

upon activity involving the body as a whole, the degree of

 

permanent disability must be measured pursuant to Iowa Code

 

section 85.34(2)(u). However, unlike scheduled member

 

disabilities, the degree of disability under this provision is

 

not measured solely by the extent of a functional impairment or

 

loss of use of a body member. A disability to the body as a

 

whole or an "industrial disability" is a loss of earning capacity

 

resulting from the work injury. Diederich v. Tri-City Railway

 

Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical

 

impairment or restriction on work activity may or may not result

 

in such a loss of earning capacity. Examination of several

 

factors determines the extent to which a work injury and a

 

resulting medical condition caused an industrial disability.

 

These factors include the employee's medical condition prior to

 

the injury, immediately after the injury and presently; the situs

 

of the injury, its severity and the length of healing period; the

 

work experience of the employee prior to the injury, after the

 

injury and potential for rehabilitation; the employee's

 

qualifications intellectually, emotionally and physically;

 

earnings prior and subsequent to the injury; age; education;

 

motivation; functional impairment as a result of the injury; and

 

inability because of the injury to engage in employment for which

 

the employee is fitted. Loss of earnings caused by a job

 

transfer for reasons related to the injury is also relevant. See

 

Peterson v. Truck Haven Cafe, Inc. (Appeal Decision, Feb. 28,

 

1985).

 

 

Claimant requests an award of permanent total disability due to

 

the so--called "odd-lot" doctrine. This doctrine is a procedural

 

device designed to shift the burden of proof with respect to

 

employability to the employer in certain factual situations.

 

Klein v. Furnas Elec. Co., 384 N.W.2d 370, 375 (Iowa 1986). A

 

worker becomes an "odd-lot" employee when an injury makes the

 

worker incapable of obtaining employment in any well-known branch

 

of the labor market. Guyton v. Irving Jensen Co., 373 N.W.2d

 

101, 105 (Iowa 1985). An odd-lot worker can only perform

 

services that are so limited in quality, dependability or

 

quantity that a reasonably stable market for them does not exist.

 

Id. In Guyton, the Supreme Court held that under the odd-lot

 

doctrine, there is no presumption that merely because the worker

 

is physically able to do certain work, such work is available.

 

When a worker makes a prima facie case of total disability by

 

producing substantial evidence that the worker is not employable

 

in the competitive labor market, the burden to produce evidence

 

shifts to the employer. If the employer fails to produce such

 

evidence and if the trier of fact finds that worker does fall in

 

the odd-lot category, the worker is entitled to a finding of

 

total disability. Id. at 106.

 

An effort at retraining is viewed by this agency to constitute a

 

reasonable effort to find employment sufficient to invoke the odd

 

 

 

Page 5

 

 

 

 

lot doctrine, Pyle v. Carstensen Freight Lines, Inc, Appeal

 

Decision, Filed July 24, 1987.

 

In the case sub judice, claimant made a reasonable effort at

 

retraining but remains unemployed. Defendant did not go forward

 

with the evidence. Therefore, claimant shall be awarded

 

permanent total disability benefits accordingly.

 

 

ORDER

 

 

1. Defendant shall pay to claimant permanent total disability

 

benefits at a rate of two hundred thirty-nine and 47/l00 dollars

 

($239.47) per week from April 28, 1992 through June 30, 1992 and

 

again from January 25, 1994 for an indefinate period of time

 

during the period of claimant's disability.

 

2. Defendant shall pay accrued weekly benefits in a lump sum and

 

shall receive credit against this award for all benefits

 

previously paid.

 

3. Defendant shall pay interest on weekly benefits awarded

 

herein as set forth in Iowa Code section 85.30.

 

4. Defendant shall pay the costs of this action pursuant to 343

 

IAC 4.33, including reimbursement to claimant for any filing fee

 

paid in this matter.

 

5. Defendant shall file activity reports on the payment of this

 

award as requested by this agency pursuant to 343 IAC 3.1.

 

 

 

Signed and filed this ____ day of July, 1994.

 

 

 

______________________________

 

LARRY P. WALSHIRE

 

DEPUTY INDUSTRIAL COMMISSIONER

 

 

Copies To:

 

 

Mr. Sheldon M. Gallner

 

Attorney at Law

 

803 Third Ave

 

PO Box 1588

 

Council Bluffs IA 51502

 

 

Mr. W. Curtis Hewett

 

Attorney at Law

 

35 Main Place

 

PO Box 249

 

Council Bluffs IA 51502

 

 

 

 

 

 

 

 

 

 

 

 

 

 

5-1803

 

Filed July 12, 1994

 

LARRY P. WALSHIRE

 

 

BEFORE THE IOWA INDUSTRIAL COMMISSIONER

 

____________________________________________________________

 

 

ELMER PRUETT, :

 

: File Nos. 1039830

 

Claimant, : 899929

 

:

 

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

 

:

 

GRIFFIN PIPE PRODUCTS, : D E C I S I O N

 

:

 

Employer, :

 

Self-Insured, :

 

Defendant. :

 

___________________________________________________________

 

 

 

5-1803

 

Non-precedential, extent of disability case.