Page 1 before the iowa industrial commissioner ____________________________________________________________ : RON BARRY, : : Claimant, : : vs. : : File No. 916763 FRUEHAUF DRIVEWAY COMPANY : d/b/a FRUEHAUF TRAILER, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : CNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Ron Barry, claimant, against Fruehauf Driveway Company d/b/a Fruehauf Trailer, employer (hereinafter referred to as Fruehauf), and CNA Insurance Companies, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on January 9, 1989. On April 20, 1990, 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 prehearing report of con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits offered into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. On January 9, 1989, claimant received an injury which arose out of and in the course of his employment with Fruehauf. 2. Claimant is seeking temporary total disability or healing period benefits only from January 13, 1989 through December 9, 1989 and defendants agree that he was not work ing at this time. 3. If the injury is found to have caused permanent disability, the type of disability is an industrial disabil ity to the body as a whole. 4. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be Page 2 $457.80. 5. All requested medical benefits have been or will be paid by defendants. issue The only issue submitted by the parties for determina tion in this proceeding is the causal connection and extent of permanent partial disability. findings of fact Having heard the testimony and considered all the evi dence, this deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants place claimant's credibility at issue during cross-examination as to the nature and extent of the dis ability. From his demeanor while testifying, claimant is found credible. Claimant worked for Fruehauf from March 1986 until the day of the hearing in this matter, at which time he was laid off along with three other employees at Fruehauf for eco nomic reasons. Claimant's duties consisted of over-the-road truck driving. On or about January 9, 1989, claimant injured his back while unloading his truck in Dayton, Ohio. After attempting to pick up one end of a heavy piece of freight, claimant felt immediate pain in his right low back. This pain radi ated into his legs. Claimant was not able to continue work ing and he sought initial treatment from the company doctor. After a few weeks, he was referred to an orthopedist, Edward Herrmann, D.O. Dr. Herrmann treated claimant conservatively for bulging intervertebral discs in the low back. This treatment included bed rest, manipulation under anesthesia and epidural injections of morphine and steroids. Claimant failed to significantly improve from this treatment and he was referred to Walid Hafez, M.D., specialty unknown, who recommended that claimant be evaluated for surgery and that if surgery is not advisable that claimant be treated at a pain clinic with physical therapy and epidural injections. In May 1989, claimant was evaluated by D. L. Abernathie, M.D., an orthopedic surgeon. Dr. Abernathie treated claimant over the next several months. This treatment included physical therapy and medication. Claimant began to improve in August 1989. In December 1989, Dr. Abernathie released claimant to return to work without restrictions. However, claimant was told to work only within his capabilities. Claimant said that he tries not to lift over 25 to 30 pounds but on occasion is required to do so. Claimant was off work due to the injury from January 13, 1989 through December 9, 1989. Prior to the return to work, Dr. Abernathie stated that he did not know if claimant was able to return to truck driving and he recommended that claimant consider alternative work. Claimant has not done so stating Page 3 that he is not trained for anything else. Also, claimant indicated to Dr. Abernathie that he is close to retirement and would like to at least return to work long enough to exercise his retirement rights. Claimant then returned to work for almost five months prior to the hearing in this matter. Claimant stated that his back and legs continued to hurt while he was performing his driving duties and that if he "over does it" the pain worsens. Claimant states that he now has difficulty working on his 340 acre farm as he has difficulty operating and working on farm equipment. He states that he now must hire someone to perform much of the farm work which has reduced his farm income. Until the time of hearing, claimant had been performing the same driving job that he had before the injury and was working in excess of 10 hours per day. Claimant said that the long hours is deceiving as much of the time is spent waiting to load and unload trucks. Claimant had no chronic back problems before the injury herein. Claimant was seen by a chiropractor four times in 1973 and once in 1979. As a result of the injury of January 9, 1989, claimant has suffered a 10 percent permanent partial impairment to the body as a whole. Dr. Abernathie had opined that he would rate claimant at this percentage but stated that he was using a Missouri standard in the rating process. Dr. Abernathie never explained this Missouri standard. However, in the experience of this agency, such a rating is rather typical for chronic back strain as diagnosed by Dr. Abernathie. Claimant has continuing difficulty with heavy and repetitive lifting, climbing stairs, operating and repairing farm equipment and prolonged driving. As a result of the injury of January 9, 1989, claimant has suffered a 20 percent loss of earning capacity. Claimant's medical condition before the work injury was excellent and he had no functional impairments or ascertain able disabilities. Claimant was able to fully perform phys ical tasks involving heavy lifting, repetitive lifting and prolonged driving. Due to his physical limitations, claimant's medical condition restricts him from fully returning to all the duties of his prior work. Claimant is 50 years of age and he is a high school graduate. His age deters from his ability to be vocationally retrained. Claimant's past employment primarily consists of truck driv ing. However, claimant was able to return to work and work without any loss of income subsequent to the work injury for at least a period of five months. Although claimant has expressed an interest in retirement to his physicians, there is no showing that claimant had retirement plans before the work injury. Apparently, there has been some accommodation by his employer for claimant's disability as he is not fully capable of heavy and repetitive lifting as he was in the past. Apart from his absence from work while recovering from the injury, claimant has suffered no permanent loss of earnings. His current unemployment is due to normal economic trends as he had been laid off previously by the same employer. Page 4 conclusions of law I. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent dis ability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physi cal impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condi tion has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, imme diately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, l985). In the case sub judice, it was found that claimant has suffered a 20 percent loss of earning capacity as a result of the work injury. Based on such a finding, claimant is entitled as a matter of law to 100 weeks of permanent par tial disability benefits under Iowa Code section 85.34(2)(u) which is 20 percent of 500 weeks, the maximum allowable num ber of weeks for an injury to the body as a whole in that subsection. As it was found that claimant returned to work on December 10, 1989, permanent partial disability benefits will be awarded from that date. As claimant has established entitlement to permanent partial disability, claimant is entitled to weekly benefits for healing period under Iowa Code section 85.34(1) from the date of injury until claimant returns to work or until claimant is medically capable of returning to substantially similar work he was performing at the time of injury; or, until it is indicated that significant improvement from the injury is not anticipated, whichever occurs first. In the case sub judice, it was found that claimant was off work due to the work injury for the period of time stipulated in the prehearing report. Healing period benefits will be awarded accordingly. Page 5 order 1. Defendants shall pay to claimant one hundred (100) weeks of permanent partial disability benefits at the rate of four hundred fifty-seven and 80/l00 dollars ($457.80) from December 10, 1989. 2. Defendants shall pay to claimant healing period benefits from January 13, 1989 through December 9, 1989, at the rate of four hundred fifty-seven and 80/l00 dollars ($457.80). 3. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for weekly benefits previously paid. 4. Defendants shall pay the interest on weekly bene fits awarded herein as set forth in Iowa Code section 85.30. 5. Defendants shall pay the cost of this action pur suant to Division of Industrial Services Rule 343-4.33. 6. Defendants shall file activity reports on the pay ment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Page 6 Signed and filed this ____ day of August, 1990. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Rd Keokuk IA 52632-1066 Mr. Elliott R. McDonald, Jr. Attorney at Law P O Box 2746 Davenport IA 52809 5-1803 Filed August 3, 1990 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : RON BARRY, : : Claimant, : : vs. : : File No. 916763 FRUEHAUF DRIVEWAY COMPANY : d/b/a FRUEHAUF TRAILER, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : CNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 - Extent of permanent partial disability benefits Page 1 before the iowa industrial commissioner ____________________________________________________________ : NEIL HOLLOWAY, : : Claimant, : : vs. : : File No. 916768 RUGE ELECTRIC, : : A P P E A L Employer, : : D E C I S I O N and : : GENERAL CASUALTY COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed March 11, 1991 is affirmed and is adopted as the final agency action in this case, with the following additional analysis: Claimant raises two issues on appeal, the extent of industrial disability and the rate of weekly benefits. Claimant has not suffered any loss of earnings. The employer has commendably accommodated claimant's condition. There is no requirement that the percentage of industrial disability exceed the percentage of impairment. Claimant does not have any medically imposed work restrictions. Claimant is unable to perform certain job tasks at work, and these limitations may affect his future ability to be hired by other employers. However, an award of seven percent industrial disability reflects this loss of earning capacity. Based on these and all the other factors of industrial disability, claimant is found to have an industrial disability of seven percent. The pay period of November 10, 1988, was incorrectly utilized in the calculation of claimant's rate. Claimant worked only two days that week, then underwent surgery and recovery. Claimant worked 40 hours or slightly less for each of the other 12 weeks preceding his injury. The week of his surgery, claimant only worked 16 hours. The week of November 10, 1988, is not representative of claimant's actual wages and should be disregarded. In order to obtain 13 representative weeks prior to claimant's injury, the pay period of July 21, 1988 should be considered. Applying claimant's $578 in wages earned during that pay period, yields a gross weekly wage of $574.62 per week. The parties Page 2 stipulated that claimant was married and entitled to two exemptions. For an injury occurring on November 8, 1988, this results in a weekly compensation rate of $350.58. Defendants have pointed out a numerical error in the statement of medical expenses and amounts paid by insurance. Central Iowa Orthopaedics is found to have been paid $1,905.60 in insurance payments. Total insurance payments are $5,794.37. Defendants are entitled to a credit in that amount. The decision of the deputy is affirmed and modified. Defendants are to pay the costs of this action, including the costs of the hearing transcript. Signed and filed this ____ day of June, 1991. ________________________________ CLAIR R. CRAMER ACTING INDUSTRIAL COMMISSIONER Copies To: Mr. Tito Trevino Attorney at Law 801 Carver Bldg. P.O. Box 1680 Fort Dodge, Iowa 50501 Ms. Claire F. Carlson Attorney at Law P.O. Box 957 Fort Dodge, Iowa 50501 1803 - 3001 Filed June 28, 1991 Clair R. Cramer EAN before the iowa industrial commissioner ____________________________________________________________ : NEIL HOLLOWAY, : : Claimant, : : vs. : : File No. 916768 RUGE ELECTRIC, : : A P P E A L Employer, : : D E C I S I O N and : : GENERAL CASUALTY COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803 Claimant did not suffer any loss of earnings, and the employer accommodated claimant's injury. Claimant had no medical restrictions. Claimant had a whole body impairment rating of ten percent. Affirmed deputy's award of seven percent industrial disability. 3001 Modified the deputy's calculation of claimant's rate, in that a week in which claimant worked part of the week, then underwent surgery and recovery, was utilized in the calculation of gross weekly wages. The week in which claimant missed days due to his surgery was disregarded as unrepresentative, and another prior week utilized for the 13 required weeks. Claimant's rate modified accordingly. Page 1 before the iowa industrial commissioner ____________________________________________________________ : NEIL HOLLOWAY, : : Claimant, : : vs. : : File No. 916768 RUGE ELECTRIC, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : GENERAL CASUALTY COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ This is a proceeding in arbitration brought by Neil Holloway, (claimant) commenced with the filing of a petition on August 16, 1989 against Ruge Electric (Ruge), employer and General Casualty Companies,(General Casualty),(collectively defendants) Ruge's insurer for worker's compensation benefits as a result of an alleged injury to claimant's shoulder occurring on November 8, 1988. On November 1, 1990, the matter came on for hearing in Fort Dodge, Iowa. The parties appeared as follows: the claimant in person and by his counsel Tito Trevino of Fort Dodge, Iowa and Ruge and General Casualty by their counsel Claire F. Carlson of Fort Dodge, Iowa. The record in this proceeding consisted of the following: 1. The testimony of the claimant and the testimony of Richard Ruge. 2. Claimant's exhibits 1, 3, 5-7; defendants' exhibits A and B and joint exhibits 2 and 4. At the close of all evidence, the case was deemed fully submitted. stipulations The parties stipulated to the following matters at the time of the hearing: The extent of entitlement to weekly compensation for temporary total disability or healing period, is stipulated to be from November 8, 1988 to February 22, 1989. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial Page 2 disability to the body as a whole. The commencement date for permanent partial disability is February 22, 1989. Claimant is married. He is entitled to two exemptions. The fees charged for medical services are fair and reasonable and the expenses were incurred for reasonable and necessary medical treatment. The amount of a credit for the payment of medical benefits under a non-occupational group plan is $5,696.37. That there are no bifurcated claims. The amount of the costs total $69.00. issues 1. Whether an employer-employee relationship existed between claimant and Ruge at the time of the alleged injury. 2. Whether the claimant sustained an injury on November 8, 1988 which arose out of and in the course of his employment. 3. Whether the alleged injury is a cause of temporary disability or permanent disability and if so the extent of entitlement to benefits including healing period benefits. 4. The amount of claimant's gross weekly earnings and the rate of compensation claimant is entitled to in the event of an award. 5. Entitlement to medical benefits under Iowa Code section 85.27 (1989) including determinations that there is a causal connection to the work injury; a causal connection between the medical expenses incurred and the medical condition upon which claimant is now basing his claim; and whether the expenses were authorized by the employer. 6. Whether the defendants are entitled to a credit for medical and hospitalization expenses in the amount of $5,696.37. Page 3 FINDINGS OF FACT After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. Claimant at the time of the hearing was 60 years old. He earns his livelihood as an electrician. He carries a master electrician/contractors license as required by the city code for Fort Dodge. He has lived in Fort Dodge for 30 years. He attended Rockwell City High School and quit during the middle of the 10th grade in 1948. The claimant does not have a GED. When he left high school, claimant joined the service and was a combat photographer. When he left the service, claimant returned to Rockwell City and worked for the Rural Electrification Administration (REA). He took some home study courses and learned television repair. 2. Claimant left REA and joined his father in his father's electrical repair shop. He had learned the electrical trade from his father as he grew and had increased his expertise with the home study course and his work with the REA. 3. After the death of his father, claimant began to work for Essinger Electric in Fort Dodge in 1960. He worked there for approximately three or four years. Essinger Electric was a general contractor and focused on the new construction end of the market. 4. Claimant's next employment was with Collins Sargano. In this employment, claimant worked on new construction and did service work. He left this employment in 1974. 5. Shortly thereafter, claimant began to work for Paul Electric. He worked for this employer for 14 years. His duties with Paul Electric included service work, elevator installation, trouble shooting, and other installation work. 6. On February 21, 1979, claimant injured his left shoulder. He was carrying a five (5) horsepower motor weighing 50-60 pounds when he fell on the ice and landed on his left shoulder. He saw Charles L. Dagle, M.D., on February 22, 1979 regarding significant pain and swelling in his left shoulder. Dr. Dagle took x-rays to determine if there was a fracture. There was none. Dr. Dagle concluded that claimant had suffered a severe contusion of the left shoulder. Dr. Dagle saw claimant twice more after that and reported that his last exam of the left shoulder on April 22, 1979 was normal. 7. In November of 1983, claimant again visited Dr. Dagle complaining of popping, cracking and pain in both shoulders. X-rays were taken and showed degenerative changes in both the left and right shoulders. Claimant attributed the pain to the "old injury" he had suffered in 1979. Dr. Dagle treated claimant with aspirin. Page 4 8. Claimant was next seen by Dr. Dagle for pain in his left shoulder experienced while at work and night numbness on the right side on November 25, 1987. Claimant complained that he had been experiencing the symptoms in his left shoulder for the past six months. Dr. Dagle gave claimant Feldene to treat the pain. 9. Claimant, in the meantime, had changed employers. He began working for Ruge on approximately February 22, 1987. Ruge is an electrical contractor. Ruge's business consists of 80 percent commercial work and 20 percent residential work. The residential work consists of reception repair, service repair, fuse box installations and repair and general household service. The commercial work varies but consists of installing new service or new equipment. Claimant's employment arrangement with Ruge was governed by a collective bargaining agreement between the International Brotherhood of Electrical Workers and Electrical Contractors. Ruge belongs to the National Electrical Contractors Association,(NECA). NECA administers various funds set up under the collective bargaining agreement. The collective bargaining agreement governs the rate of pay and the benefits received by union members employed by union contractors. Claimant's total wage and benefit package is approximately $22.00 per hour. Ruge contributed to various funds maintained under the collective bargaining agreement, including a fund for medical insurance and vacation or holiday pay. Claimant's gross wage on October 27, 1988 for a 40 hour week equaled $578.80. Claimant's hourly wage was $14.17 per hour. Claimant worked on an hourly basis as long as there was an account to charge the work to. If there was a slow time, or no work to do, claimant could be sent home. Claimant was not paid by Ruge for holidays or vacations. These funds were received from the funds set up by the collective bargaining agreement and administered by NECA. On average, claimant worked a 40 hour week. However, there were slow times during his employment with Ruge, most notably during March, July, late August and early September and December in 1987 and during June in 1988. Claimant was never laid off by Ruge though others were during 1987 and 1988. 10. For the thirteen weeks prior to claimant's injury he earned the following amounts: DATE WAGE HOURS WORKED 28-Jul-88 $578.80 40 4-Aug-88 $578.80 40 18-Aug-88 $578.80 40 25-Aug-88 $539.00 37.25 1-Sep-88 $578.80 40 15-Sep-88 $578.80 40 22-Sep-88 $578.80 40 29-Sep-88 $578.80 40 6-Oct-88 $578.80 40 13-Oct-88 $578.80 40 27-Oct-88 $578.80 40 3-Nov-88 $564.33 39 Page 5 10-Nov-88 $231.52 16 TOTAL: $547.91. Three weeks were excluded from this wage calculation. They are August 11, 1988, September 9, 1988, and October 20, 1988. These weeks include vacation days for the claimant and sick days for the claimant. Partial weeks are not included in the wage calculation. Anderson v. High Rise Construction Specialists, Inc., File No. 850996, Slip op. at 3, (Iowa Ind. Comm'r Appeal Dec. July 31, 1990). Based on the above calculation, claimant's compensation rate is $335.49 (married with 2 exemptions) Guide to Iowa Workers' Compensation Claim Handling, page 55, July 1, 1988; Iowa Code section 85.36(6) (1989). 11. In October of 1988, claimant was assigned by Ruge to go wire a pole barn. This job required him to climb a tall fiberglass ladder several times to install overhead lighting. The installation required him to move the ladder several times. His left shoulder was painful and he could not handle the ladder with one arm and he dropped it. Thereafter, he had a conversation with Richard Ruge about the pain in his shoulder. Mr. Ruge suggested that claimant go see Robert Weatherwax, M.D. 12. Upon examination and review of x-rays, Dr. Weatherwax found that claimant was suffering from severe acromioclavicular arthritis and chronic impingement. After an arthrogram study, Dr. Weatherwax expanded his diagnosis to indicate that claimant had a thickness tear of the rotator cuff of his left shoulder. His final preoperative impression was chronic impingement syndrome with full thickness tear rotator cuff tendon and acromioclavicular arthritis. 13. Prior to his surgery, claimant stopped working on November 7, 1988. 14. On November 8, 1988, Dr. Weatherwax performed decompression surgery on the left shoulder to repair the rotator cuff tear and resection of the joint to relieve the acromioclavicular arthritis and eliminate chronic impingement. Claimant was discharged on November 9, 1988. 15. On February 21, 1989, claimant was released to return to work on light duty. He was restricted to lifting 20 to 25 pounds and limit as much as possible overhead activity. Claimant was subsequently checked by Dr. Weatherwax in April and August and November 1989. After the final check of claimant's shoulder, in November of 1989, Dr. Weatherwax, found a 12 percent functional impairment of claimant's upper extremity. However, there is no evidence in the record that Dr. Weatherwax imposed any restrictions on claimant. Moreover, claimant testified that he was not under any restrictions from Dr Weatherwax. 16. Dr. Weatherwax has, throughout his contacts with claimant and General Casualty, consistently opined that claimant's employment has materially aggravated and Page 6 contributed to the chronic impingement that resulted in the tear of the rotator cuff tendon in his left shoulder. Moreover, he indicated that claimant's symptoms are related to the repetitive overhead activities required by his profession. He also indicated however, that the arthritis found in the acromioclavicular joint which is just above the shoulder joint played a part in wearing and rupturing the rotator cuff since the arthritis creates bony spurs that often pinch into the tendon. See, Correspondence between Dr. Weatherwax and General Casualty dated December 15, 1988, February 17, 1989, and July 24, 1989. 17. Claimant currently works at the same job and for the same employer he had prior to his surgery. He works 40 hours a week as an electrician. Moreover, claimant is doing the same amount of work that he did before the surgery. He does service work, repair work, and trouble shooting. Claimant earns more per hour now than he did prior to his injury. Claimant is able to do all the tasks assigned to him by Ruge. Claimant is not foreclosed from going to work for another electrical contractor and pursuing the work he does now. Claimant engages in all of his hobbies that he had prior to the injury and surgery. 18. At the time claimant saw Dr. Weatherwax for his shoulder, claimant's right foot was bothering him. There is no evidence in the record that indicates that claimant's foot problem is in any way connected with his work. Dr. Weatherwax gave no opinion regarding the cause of claimant's foot problem and did not attribute the condition to a work related incident. At the time of claimant's decompression surgery, Dr. Weatherwax also performed surgery on claimant's foot. 19. As part of the evidence in this matter, claimant submitted medical expenses and a mileage expense report in connection with his claim for medical benefits. Portions of these bills have been paid by insurance. These amounts are as follows: Page 7 PROVIDER AMOUNT INSURANCE Central Iowa Orthopaedics $2,000.00 $1,905.00 DM Anesthesiologists 384.00 384.00 Humboldt Co. Hospital 149.00 143.00 Trinity Reg. Hospital 949.00 602.16 Iowa Lutheran Hospital 2,785.01 2,477.01 Raymond Schamel, M.D. 46.00 36.80 Ft. Dodge Med. Center 261.50 194.80 Roger Vogt, M.D. 51.00 51.00 TOTAL: $6,626.21 $5,696.37 BALANCE: $929.84 Mileage 884 miles $185.64 There is no evidence of apportionment between the procedure for the shoulder and the procedure for the ankle. There is a notation on the billing statement of November 30, 1988 that claimant was charged for a shoulder cuff repair. There is no separate charge for the work performed on the right foot even though it is clear from the operative notes dictated by Dr. Weatherwax that he removed large osteophytes of the dorsal aspect of the talonavicular joint. The postoperative office visit notes also indicate that time and attention was paid to the right foot surgery. In the office notes dictated on November 22, 1988, December 6, 1988, December 20, 1988, January 3, 1989, and January 31, 1989, mention is made each time of the procedures used to reduce swelling in the right foot and take care of fluid accumulation in the surgical area. There was no separate charge made for the attention given to the right foot during each office visit. conclusions of law 1. Whether an employer-employee relationship existed between claimant and Ruge at the time of the alleged injury. Ruge has urged that claimant was not in an employee-employer relationship at the time of the injury. The term "employment" in Iowa Code section 85.71 (1989) refers to the employment relationship between the claimant and the employer against whom the claim is made. Factors to be considered in determining whether an employer-employee relationship exists include: (1) the right of selection, or to employ at will; (2) responsibility for payment of wages by the employer; (3) the right to discharge or terminate the relationship; (4) the right to control the work; (5) identity of the employer as the authority in charge of the work or for whose benefit it is performed. The overriding issue is the intention of the parties. McClure v. Union Page 8 County, 188 N.W.2d 283, 285 (Iowa 1971). There is no requirement that claimant preponderate on each of the elements, a majority of the elements or only certain elements. Funk v. Bekins Van Lines Co., I Iowa Industrial Commissioner Reports 82, 83 (Appeal Decision 1980). There is ample evidence in the record to support claimant's position that he was a Ruge employee at the time he could no longer work. Ruge controlled all aspects of his work. Ruge had the right to select claimant for employment within the framework of a collective bargaining agreement. Ruge was responsible for the payment of claimant's wages. Ruge could terminate claimant or lay him off. Finally, Ruge was ultimately responsible for all the work claimant performed. It is clear that claimant was a Ruge employee at the time he stopped working and had surgery on his shoulder. 2. Whether claimant suffered an injury arising out of and in the course of his employment with Ruge that occurred on November 8, 1988. Claimant's next contention is that he suffered a cumulative injury working as an electrician for Ruge. Ruge urges that claimant suffered an injury with Paul Electric and it plagued him until the day he left Ruge's employ and had surgery on his shoulder. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on November 8, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967). An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while the employee is doing work assigned by the employer or something incidental to it. Cedar Rapids Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure, 188 N.W.2d at 287; Musselman, 154 N.W.2d at 130. An injury arises out of the employment if the injury is caused by the employment or the employment is the source of the injury. Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 65 (Iowa 1955). A cumulative injury may occur over a period of time. The injury in such cases occurs when, because of pain or physical disability, the claimant is compelled to leave work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985). Moreover, claimant's last employer becomes liable for the cumulative injury, even if the incidents that lead to the ultimate injury do not occur while a claimant is employed with the last employer. McKeever, 379 N.W.2d at 376; See also, Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 434-35. In this instance, the evidence is clear that the pain in claimant's shoulder became so persistent that he was forced to stop work on October 7, 1988 for treatment of his shoulder. The evidence is uncontroverted on the issue of the cause of the injury; the repetitive use of the shoulder in claimant's trade as an electrician. Dr. Weatherwax indicated in at least three separate letters that the cause Page 9 of claimant's condition was his work. Since Ruge was the last employer, and there is clear evidence in the record that claimant's injury was caused by the repetitive use of his shoulder in connection with his work, the injury arose out of and in the course of employment with Ruge. This conclusion does not change if claimant's arthritis in his shoulder is considered. There is no evidence in the record that suggests that claimant's arthritis was the primary culprit in causing claimant's shoulder injury. Dr. Weatherwax said as much in his letter of February 17, 1989. There is no other medical evidence to the contrary. Consequently, claimant suffered a cumulative injury on November 8, 1988 while in the employ of Ruge. 3. Whether the alleged injury is a cause of temporary disability or permanent disability and if so the extent of entitlement to benefits. Claimant next contends that this injury has caused a permanent disability which entitles him to industrial disability benefits. Claimant must show by a preponderance of the evidence that the injury of November 8, 19887, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732,738 (Iowa 1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167,171 (Iowa 1960). If the claimant is successful in establishing a casual connection between the injury and a permanent condition the next question that must be answered is whether the permanent injury has caused a loss in earning capacity. The essence of an earning capacity inquiry is not how much has the claimant been functionally impaired, but whether that impairment, in combination with the claimant's age, education, work experience, pre and post injury wages, motivation and ability to get a job within his restrictions, if any restrictions have been imposed, have caused a loss of earning capacity. Olson v. Goodyear Service Stores, 125 N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway Co., 258 N.W. 899, 902 (Iowa 1935); Peterson v. Truck Haven Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 (1985); Christensen v. Hagen, Inc., 1 Iowa Ind. Comm'r Dec. No. 3, 529, 534-535 (1985). There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of the total, motivation five percent of the total, work experience thirty percent of the total etc. Neither does a rating of functional impairment directly correlate to the degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability to the body as a whole. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, and Page 10 general and specialized knowledge to make the finding with regard to the degree of industrial disability. See, Peterson, 1 Iowa Industrial Comm'r Dec. No. 3, at 658; Christensen, 1 Iowa Ind. Comm'r Dec. No. 3, at 535. The evidence shows that claimant has suffered an injury caused by his work that has left him with a 12 percent impairment to his upper extremity. The parties agree that this injury is an injury to the body as a whole. Consequently, claimant has sustained an industrial disability. However, the extent of the disability is not great. Claimant's only restriction is the functional impairment found by Dr. Weatherwax. Claimant works without any other restrictions. He has returned to work with Ruge, and he is working as an electrician doing the same things he was doing prior to the injury. Claimant has not given up his hobby as a pilot. If claimant leaves his current employment to go work for another contractor, claimant would still be working as an electrician making service calls on commercial and residential accounts. Claimant has not shown that he has suffered any significant loss of earning capacity and his industrial disability is found to be 7%. In connection with healing period benefits, claimant established that his inability to work from November 8, 1988 to February 22, 1989 was causally related to his shoulder injury and subsequent surgery. 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 and Rubber Co. v. Kubli, 312 N.W. 2d 60, 65 (Iowa App. 1981). 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. Armstrong, 312 N.W. 2d at 65. In this instance, the parties agreed that claimant's healing period ended when he returned to work on February 22, 1989.. Consequently, he will be compensated for that time period at the rate set out in paragraph 10 above. 4. Entitlement to medical benefits under Iowa Code section 85.27 (1989) including determinations as to whether there is a causal connection to the work injury; a causal connection between the medical expenses incurred and the medical condition upon which claimant is now basing his claim; and authorization by the employer. Claimant has the burden of demonstrating that the medical services obtained were related to the injury in order to have the expenses reimbursed or paid. Auxier v. Woodward State Hospital, 266 N.W.2d 139, 144 (1978). Claimant has shown by a clear preponderance of the evidence that he was injured while working for Ruge. Claimant's shoulder, though painful, did not prevent him from completing his job tasks prior to November 7, 1988. When claimant's shoulder became so painful that he could no longer work, he was working for Ruge in his capacity as an electrician. As a consequence the necessary nexus has been Page 11 established and Ruge must provide medical benefits to claimant. Iowa Code section 85.27 (1989). With regard to which amounts Ruge must pay, a recent decision of the Industrial Commissioner is instructive. See, Anderson v. High Rise Construction Specialists, Inc., File No 850096, Slip Op. at 3 (Iowa Ind. Comm'r Appeal July 31, 1990). In this decision, the Industrial Commissioner identified one of the issues for appeal as the sufficiency of the proof that items contained in the hospital statement are related to the injury claimant received. The Commissioner held that where the reasonableness and the necessity of claimant's medical bills were put into issue, and the claimant offered no evidence of reasonableness, the employer was not liable for the medical expenses incurred. In applying these principals to the case at hand, Ruge agreed that the fees and expenses including the mileage expense were reasonable and necessary even where there had been no apportionment between the procedure for the foot and the procedure for claimant's shoulder. Since reasonableness of the fees and expenses was not an issue, claimant has satisfied his burden in showing that the medical expenses and the claim for mileage incurred were causally related to the medical condition upon which he is basing his claim. Ruge must pay the medical expenses and mileage expenses enumerated in paragraph 19 above. The final medical benefit issue for resolution is whether Ruge authorized claimant to obtain medical care for his shoulder. Under Iowa Code section 85.27 (1989) an employer has the responsibility to provide an injured worker with reasonable medical care and has the right to select the care the worker will receive. In order for the employer to be held responsible for claimant's medical expenses, claimant must show that the treatment sought was either emergency care, was authorized. Templeton v. Little Giant Crane & Shovel, 1 State of Iowa Industrial Commissioner Decisions No. 3, 702, 704 (Iowa Ind. Comm'r Appeal 1985). If the treatment is unauthorized a claimant may still recover if the treatment improves the claimant's condition and the treatment ultimately mitigates defendants' liability. Thomas v. Broadlawns Medical Center, File No. 81240, Slip op. at pp. 6-8 (Iowa Ind. Comm'r October 31, 1990); Butcher v. Valley Sheet Metal, IV Iowa Industrial Commissioner Report 49 (1983); Rittgers v. United Parcel Service, III Iowa Industrial Commissioner Report 210 (1982). Moreover, an employee may engage medical services if the employer has expressly or impliedly conveyed to the employee the impression that the employee has authorization to proceed in this fashion. 2 Larson's Workmen's Compensation Law, section 61.12(g) (1990). It is clear from the evidence given at trial that Ruge authorized the medical treatment for the claimant. Richard Ruge suggested that claimant see Dr. Weatherwax for his shoulder. The claimant could reasonably rely on this advice from his employer that he had its authority to seek medical treatment for his shoulder. 6. Whether the defendants are entitled to a credit for medical and hospitalization expenses in the amount of Page 12 $5,696.37. The parties have disputed whether Ruge is entitled to a credit for amounts paid to claimant's medical service providers. Pursuant to Iowa Code section 85.38(2) (1989) if the employee receives any benefits, including medical, surgical or hospital benefits under any group plan covering nonoccupational disabilities contributed to wholly or partially by the employer, and the benefits should not have been paid if any rights of recovery existed under the Iowa Worker's Compensation Law, the employer is entitled to a credit for the amounts paid. Under the terms of the union contract, Ruge is responsible for contributing to the Health and Welfare fund administered by NECA. Since Ruge has contributed to the Health and Welfare fund, it is entitled to a credit for amounts paid to claimant's medical service providers in the amount of $5,696.37. order THEREFORE, it is ordered: 1. Ruge Electric and General Casualty Companies shall pay to claimant healing period benefits for the period of time on November 8, 1988 and ending on February 22, 1989, at the rate of three hundred thirty-five and 49/100 dollars ($335.49). As these benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. 2. Ruge Electric and General Casualty Companies shall pay to claimant permanent total disability benefits in the amount of seven percent (7%) with payment commencing on February 23, 1989. As these benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. 3. Ruge Electric and General Casualty Companies shall pay the following medical providers: Central Iowa Orthopaedics $2,000.00 DM Anesthesiologists 384.00 Humboldt Co. Hospital 149.00 Trinity Reg. Hospital 949.00 Iowa Lutheran Hospital 2,785.01 Raymond Schamel, M.D. 46.00 Ft. Dodge Med. Center 261.50 Roger Vogt, M.D. 51.00 TOTAL: $6,626.21 Ruge shall have a credit for all amounts paid 4. Ruge shall pay to claimant mileage expenses in the amount of one hundred eighty-five and 64/100 dollars ($185.64). Page 13 5. The costs of this action totaling sixty-nine dollars ($69.00) shall be assessed to Ruge Electric and General Casualty Companies pursuant to rule 343 IAC 4.33. 6. Ruge Electric and General Casualty Companies shall file claim activity reports as required by rule 343 IAC 3.1. Signed and filed this ____ day of March, 1991. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Tito Trevino Attorney at Law 503 Snell Bldg PO Box 1680 Ft Dodge Iowa 50501 Ms Claire F Carlson Attorney at Law Seventh Floor Snell Bldg PO Box 957 Ft Dodge Iowa 50501 Page 1 5-2503; 5-1403.20; 5-1701; 5-3001; 5-1802; 5-1803; 5-2209 Filed March 11, 1991 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : NEIL HOLLOWAY, : : Claimant, : : vs. : : File No. 916768 RUGE ELECTRIC, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : GENERAL CASUALTY COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803, 5-2209 Claimant suffered a 7 percent industrial disability with a cumulative injury to his shoulder. Claimant, an electrician, was found to have a 12 percent functional impairment to the upper extremity. However, claimant returned to his job as an electrician. He had no loss in wages. He was released to work without any restrictions. He gave up no hobbies and had no lifestyle changes. 5-1802 Claimant was awarded healing period benefits for the period of time from the injury occurrence date fixed by the reasoning in McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985) until he returned to work on February 22, 1989. 5-3003 Claimant's rate was calculated by excluding the partial weeks he worked that included vacation and medical leave. 5-2503, 5-1403.20 Since the employer did not object to the necessity and reasonableness of the medical expenses incurred by claimant, even though the expenses were not apportioned between the work related injury and a non work related injury, the employer bears the entire cost of the expenses. See, Anderson v. High Rise Construction Specialists, Inc. File Page 2 No. 850096, Slip op. at 3 (Iowa Ind. Comm'r Appeal July 31, 1990) 5-1701 Where the employer contributes to a health and welfare fund established under a collective bargaining agreement, the employer is entitled to a credit for the amounts paid by the funds for the claimant's benefit. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RUSSELL GENE BROWN, JR., : : Claimant, : : vs. : : File No. 916776 KERRY SPURLIN, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FERREN INSURANCE SERVICES : LTD, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Russell Gene Brown, Jr., against his employer, Kerry Spurlin, and against the employer's insurance agent, Ferren Insurance Services Ltd. Claimant seeks compensation for temporary total disability, permanent partial disability and payment of medical expenses based upon an injury to his left leg that occurred on April 15, 1989. The case was heard at Ottumwa, Iowa on February 7, 1991. The evidence in the proceeding consists of testimony from Russell Gene Brown, Jr., Teri Brown and Kerry Spurlin. The evidence also contains claimant's exhibits 1 through 6. The only disputed bill was the chest x-ray charges in the amount of $19.38 shown on the last page of exhibit 2. Spurlin acknowledged responsibility for the other bills. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. Russell Gene Brown, Jr., is a young man who has worked as a farmhand for Kerry Spurlin at some point during each of the preceding four years. The bulk of the work has been performed in the spring and in the fall of the year, although the record shows him to have received pay checks at some point during each of the 12 calendar months of the year. On or about April 15, 1989, while working on Spurlin's Page 2 farm near Moulton, Iowa, Russell slipped and fell, hitting his left knee on a disc. The knee became sore and he sought medical treatment from Dr. Fraser at Centerville, Iowa on April 17. The doctor prescribed medication. Russell returned to work, but became unable to work and returned to Dr. Fraser. On April 21, Russell was admitted to St. Joseph Mercy Hospital where he underwent surgery on his left knee in order to remove the large amount of pus and infection which had developed in the knee (exhibit 1, page 1b). Russell testified at hearing that, following the surgery, he was released by his surgeon to return to work on June 23, 1989. Russell also stated that he worked prior to the surgery until one or two days before being admitted to the hospital. It is found that Russell was disabled on account of the surgery from April 20, 1989 through June 22, 1989, a span of nine and one-seventh weeks. Russell did work on May 11 and May 29, 1989 when work was made available, even though he had not completely recovered. Russell has continuing problems with his knee. He is unable to crawl on his hands and knees. His ability to bear weight with the left knee is limited by pain. The knee aches when it is stressed or with weather changes. Vincent E. Sullivan, M.D., his treating surgeon, in a report dated July 23, 1990, states, "On physical exam, I see minimal impairment." A subsequent report dated February 4, 1991 states that the doctor feels the patient may be slightly limited. The evidence from Dr. Sullivan when combined with Russell's own credible testimony clearly establishes that there is some permanent impairment of the knee, albeit minimal. Five percent is a minimal amount of impairment. It is found that Russell has experienced a five percent loss of his ability to use his left leg as a result of the residual problems which exist in his left knee, all as a result of the April 15, 1989 injury. Claimant incurred medical expenses in obtaining treatment for the knee as follows: Vincent E. Sullivan, M.D. $ 575.00 St. Joseph Mercy Hospital 7,688.20 Centerville Medical Clinic 527.00 Rural Diagnostic Radiology 34.68 Total $8,824.88 The evidence in this case does not specifically show the purpose for the April 21, 1989 chest x-ray for which charges in the amount of $19.38 were made. It is noted, however, from the record itself that the test was ordered by Dr. Fraser. The evidence shows claimant to have been treating with Dr. Fraser for his knee and not for any other medical problem. The test was performed on the same date as the date Russell was admitted to the hospital. It is common Page 3 for patients to have a chest x-ray when they are admitted to a hospital for surgery as part of the pre-surgery preparatory process. Since the test was ordered by a licensed physician, there is an inference that the test was reasonable to conduct. Claimant's testimony and the state of the records show no medical purpose for conducting any type of medical treatment other than the knee condition. It is therefore found that the chest x-ray does constitute reasonable treatment for the knee injury. The record is devoid of any indication that the x-ray was conducted for any other purpose. Claimant's earnings are accurately reflected on exhibits 3, 4, 5 and 6. It is found that Russell's work was not seasonal and that the work of a farmhand is not exclusively seasonal, even though it is somewhat seasonal with busy times and times when there is little work to be performed. It is further found that, when Russell was working, his earnings were not less than the earnings of the regular, full-time adult laborer in the farming industry in the southern Iowa locality. The 13 weeks preceding the injury involve the periods shown on exhibits 4 and 5. It is particularly noted that it was customary for Russell not to work a full 40 hours each and every week. Further, the pay periods varied and there is no standard work week to be employed. Since the day of injury was April 15, 1989 and claimant did not leave work on that day, the 13-week period preceding that day commences with January 15, 1989. Since the claimant did not work during one of those intervening weeks, it is necessary to move on to January 8, 1989 in order to obtain 13 representative weeks. The argument of facts and computations shown in the post-hearing brief filed on behalf of the employer is found to be correct. Claimant's total gross wages for the 13 weeks which are included compute to $1,207.48. The average weekly wage is $92.88. Ferren Insurance Services, Ltd., is not an insurance carrier. It is an insurance agency. It is not the employer of Russell Gene Brown, Jr. Page 4 conclusions of law The Iowa workers' compensation statutes deal with the method by which employees are to be compensated for injuries which arise out of and in the course of their employment. Code sections 85.3 and 85.1 specify that employers are subject to the chapter. Section 85.20 makes chapter 85 the exclusive remedy for the employee. The statute does not contain any provision which makes any entity other than the employee and the employer subject to the jurisdiction of the industrial commissioner, except for insurance carriers as provided by section 87.10. Since the workers' compensation statutes are special statutes with limited jurisdiction, it is concluded that this agency does not have jurisdiction to enter an award against Ferren Insurance Services, Ltd. Spurlin may have a remedy in the district court to obtain reimbursement for the award made in this decision from Ferren Insurance Services, Ltd., but that cannot be determined or addressed in this decision. Russell is entitled to recover healing period compensation commencing April 20, 1989 and running through June 22, 1989, except for the days May 11 and May 29, 1989. The total span is eight and six-sevenths weeks. It was stipulated that the injury was limited to Russell's left leg. He is therefore entitled to recover 11 weeks of permanent partial disability under the provisions of Code section 85.34(2)(o) representing a five percent loss of use of the leg. Since claimant was single and had no other exemptions except for himself, his rate of compensation is based upon average weekly wages of $92.88 under the provisions of section 85.36(6), and the 1988 benefit booklet, as corrected, reflects that weekly wages of $93.00 for a single worker with one exemption provide a weekly rate of $77.35. In arriving at the rate, weeks in which no work was performed were not counted. Lewis v. Aalf's Mfg. Co., I Iowa Industrial Commissioner Report 206 (App. Decn. 1980). The employer is responsible for all the claimed medical expenses in the total amount of $8,824.88. order IT IS THEREFORE ORDERED that the employer, Kerry Spurlin, pay Russell Gene Brown, Jr., eight and six-sevenths (8 6/7) weeks of compensation for healing period at the rate Page 5 of seventy-seven and 35/100 dollars ($77.35) per week payable commencing April 20, 1989 with said payments being interrupted for the days claimant actually worked, namely May 11 and May 29, 1989. IT IS FURTHER ORDERED that the employer, Kerry Spurlin, pay Russell Gene Brown, Jr., eleven (11) weeks of compensation for permanent partial disability at the rate of seventy-seven and 35/100 dollars ($77.35) per week payable commencing June 23, 1989. IT IS FURTHER ORDERED that all past due amounts of weekly compensation be paid to Russell Gene Brown, Jr., in a lump sum together with interest pursuant to Code section 85.30 computed from the date each weekly payment came due until the date of actual payment. IT IS FURTHER ORDERED that the employer, Kerry Spurlin, pay the following medical expenses: Vincent E. Sullivan, M.D. $ 575.00 St. Joseph Mercy Hospital 7,688.20 Centerville Medical Clinic 527.00 Rural Diagnostic Radiology 34.68 Total $8,824.88 Kerry Spurlin shall pay to Russell Gene Brown, Jr., any amounts Brown has paid toward those bills. Spurlin shall receive full credit for amounts he has previously paid toward those same medical expenses. IT IS FURTHER ORDERED that the costs of this proceeding are assessed against the employer, Kerry Spurlin, pursuant to rule 343 IAC 4.33. IT IS FURTHER ORDERED that the employer, Kerry Spurlin, file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Page 6 Copies To: Mr. Vern M. Ball Attorney at Law 207 South Washington P.O. Box 129 Bloomfield, Iowa 52537 Mr. Wayne Fraser Attorney at Law Edina, Missouri 63537 Mr. William D. Scherle Attorney at Law 803 Fleming Building Des Moines, Iowa 50309 1402.60; 1803; 2300; 2302 2501 Filed April 1, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : RUSSELL GENE BROWN, JR., : : Claimant, : : vs. : : File No. 916776 KERRY SPURLIN, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FERREN INSURANCE SERVICES : LTD, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 2300; 2302 This agency has no jurisdiction to enter an award against an insurance agency which was neither an employer nor an insurance carrier, despite the fact that it had been served with original notice and took no action to defend. 1803 Claimant awarded five percent permanent partial disability where doctor termed the impairment to the leg as "minimal" and claimant had complaints, which were found to be credible, of loss of ability to make full use of the leg. 1402.60; 2501 An inference exists that whenever treatment is administered under the direction of a licensed physician, that the treatment is reasonable for the condition being treated. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RUTH M. MEAD, : : Claimant, : : vs. : : File No. 916787 FRUEHAUF CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Ruth M. Mead, against her employer, Fruehauf Corporation, and its insurance carrier, CNA Insurance Corporation, defendants. The case was heard on November 15, 1990, in Burlington, Iowa at the Des Moines County Courthouse. The record consists of the testimony of claimant. Additionally, the record consists of joint exhibits 1-21 and defendants' exhibit A. issues The issues to be determined are: 1) whether claimant is entitled to medical benefits for sex therapy; and, 2) whether claimant is entitled to permanent partial disability benefits. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 52 years old. She sustained a work related injury on March 18, 1985, when she lifted a fiberglass wall. Claimant sustained a tear in the lower groin area. On September 14, 1987, claimant had a right inguinal herniorrhaphy. The procedure was performed by E. J. DeLashmutt. Claimant returned to work on November 9, 1987. Subsequent to her hernia repair, claimant began experiencing numbness in the right lower groin area. She reported the numbness to Dr. DeLashmutt in June, 1989 when she was examined at the Fort Madison Community Hospital. Claimant maintained she had reported the numbness prior to that time. However, Dr. DeLashmutt had no recollection of such a complaint. Page 2 Dr. DeLashmutt, in his report of June 12, 1989, wrote: There is no recurrence of the hernia at this time. The patient does have an area of numbness to needle prick along the incision and a portion of the lateral upper thigh. However, she has sharp pain over the right labia majora. While the distribution does not follow the entire innervation of either the ileo inguinal or genito-femoral [sic] nerves, it does correspond to an area that is innervated by branches of both these nerves. The area is in no way concerned with sexual organs or sexual stimulation. This may represent entrapment of a branch of either of these nerves by scar tissue, however I would expect the entire area of innervation including the labia to be involved if this is the etiology of her problem. Ruth informed me of the findings of her gynecologist and their recommendations. I concur with their findings. However, I believe that she probably should be seen by someone who can asses any nerve entrapment better than by "pin prick" exam. I would suggest that she see Dr. Burton Stone at Klein Hospital in Burlington for more sophisticated studies. If his findings concur with mine, I believe the remainder of her gyneocologist's [sic] findings be implemented. Claimant voiced the same numbness complaints to her personal gynecologist, Lourdes A. Marquez, M.D. Dr. Marquez diagnosed claimant as having: This certifies that Ruth Mead has been to our office with her complaints. After examination I found her to be free of any Gynecologic organic problem. I feel she may need to be referred to a neurologist or later a psychosexual therapist. Dr. Marquez then referred claimant to Laura Goldstein, M.D., a neurologist at the University of Iowa. Dr. Goldstein examined claimant. The physician opined: Your patient, Ruth Mead, was seen on 7/13/89, in the Neurology Outpatient Clinic. Our diagnostic impressions were 1) sensory loss in the left genitofemoral ilioinguinal distribution 2) sexual dysfunction of psychological etiology. Our recommendations include 1) sexual counseling. Ms. Mead is a 50 year old, left-handed woman who complained of numbness of the right external vulvar area, subsequent to herniorrhaphy in 1987. Page 3 The patient had injured her abdominal musculature while on the job in 1985, and subsequently underwent surgical correction of an inguinal hernia. She has had intercourse infrequently since her surgery and on last occasion noted pain with penetration. She denied loss of sensation internal to the labia, yet remains sexually unresponsive. She notes some pain on occasion with crossing of legs, but this is not a persistent problem. She denied bowel/bladder incontinence or loss of lower extremity strength. Physical exam was entirely normal. Neurological exam was significant for an area of numbness and decreased pinpoint sensation in an area extending from the anterior midpoint of the labia forward, medial to the inguinal area. She had normal sphincter tone and good sensation. She had symmetrical 5/5 strength throughout the lower extremities. Gait was normal. In conclusion, we believe Ms. Mead has a post surgical loss of sensation in the distribution of the ilioinguinal nerve causing sexual dysfunction. Her exam was negative for sacral neuropathy or radiculopathy. We have discussed sexual function with the patient and would be happy to refer her to therapy here at the University of Iowa. In addition, Dr. Goldstein elaborated in her report of January 19, 1990: I'm writing to summarize my medical opinion of Ruth Mead. Mrs. Mead was evaluated in the Neurology Outpatient Clinic on July 13, 1989. She is a 50-year-old woman who was referred because of numbness in the vulvar region since September 1987. She had undergone herniorrhaphy at that time. Following this operation, she noted that the right vulvar region had lost sensation. Since that time, she also had loss of libido and inability to achieve orgasm. She has not had bowel or bladder, or lower extremity dysfunction. Her neurological examination of July 13, 1989 was remarkable for diminished appreciation of pinprick sensation on the right labia, with preserved rectal sphincter tone, perianal reflexes and sensation, but an otherwise normal neurological examination. It is my opinion that Mrs. Mead has sensory loss in the genitofemoral or ilioinguinal nerve distributions. Distinction between which of these two nerves is involved is not possible. Both ilioinguinal and genital femoral nerves lie in the inguinal canal, and injury to these nerves is a well recognized complication of hernia repair. I have recommended to Mrs. Mead that she undergo psychological counseling to assist with the recovery of her sexual function. Page 4 I hope this summary helps you in your representation of Mrs. Mead. Please don't hesitate to contact me should you have further questions regarding her neurologic deficit. To date, claimant has not engaged in psychosexual therapy. Defendants have denied liability for the same. conclusions of law If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered....In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. * * * * Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). In Parr v. Nash Finch Co., (appeal decision, October 31, 1980) the industrial commissioner, after analyzing the decisions of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), stated: Although the court stated that they were looking for the reduction in earning capacity it is undeniable that it was the "loss of earnings" caused by the job transfer for reasons related to the injury that the court was indicating justified Page 5 a finding of "industrial disability." Therefore, if a worker is placed in a position by his employer after an injury to the body as a whole and because of the injury which results in an actual reduction in earning, it would appear this would justify an award of industrial disability. This would appear to be so even if the worker's "capacity" to earn has not been diminished. For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden, 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden, 388 N.W.2d 181 (Iowa 1980). The first issue to address is whether claimant is entitled to medical benefits in the form of psychosexual therapy. Dr. DeLashmutt acknowledged claimant had numbness along the hernia incision and along a portion of the lateral upper thigh. He concurred with the findings of claimant's gynecologist. He believed that if a neurologist concurred with his findings, then the recommendations of the gynecologist should be implemented. Dr. DeLashmutt referred claimant to a neurologist by the name of Burton Stone, M.D. Claimant selected not to see Dr. Stone. Rather she chose to see Dr. Goldstein. Dr. Marquez, claimant's personal gynecologist, had referred claimant to Dr. Goldstein. Dr. Goldstein, like Dr. DeLashmutt, opined there was numbness near the inguinal area. She attributed this to sensory loss in the genitofemoral or ilioinguinal nerve distributions. She also noted that injury to the aforementioned nerves was a well recognized complication of hernia repair. Dr. Goldstein and Dr. Marquez both recommended psychosexual therapy as a treatment. It appears Dr. DeLashmutt would not disagree with this recommendation. The undersigned finds that the numbness is causally connected to claimant's hernia repair. Therefore, in light of the aforementioned, it is the determination of the undersigned that defendants are liable for reasonable and necessary psychosexual therapy. It is well known in this state that the employer has the right to select claimant's medical care. Because claimant had selected to see Dr. Goldstein, over Dr. Stone, the neurolo gist referred by the treating physician, defendants are not liable for charges related to Dr. Goldstein's services at the University of Iowa. The next issue to address is whether claimant has sustained any permanent partial disability as a result of her injury on March 18, 1985. No physician has supplied any permanent functional impairment rating because of claimant's hernia condition. Claimant has been released to return to work as of November 9, 1987. No permanent restrictions have been imposed upon claimant's activities. Claimant's numbness in the ilioinguinal nerve area does not interfere Page 6 with claimant's work duties. Likewise, claimant has not lost work because of her hernia repair since November 9, 1987. Nor has claimant had a loss of earning capacity attributable to her hernia condition. Claimant has testified she has received all raises due to her. She also has testified she has not taken a lesser paying job because of her condition. Therefore, in light of the foregoing, it is the determination of the undersigned that claimant has not proven by a preponderance of the evidence that she has a permanent partial disability attributable to her March 18, 1985 work injury. order THEREFORE, IT IS ORDERED: Defendants are liable for claimant's reasonable and necessary medical expenses, including psychosexual therapy. Costs of the action shall be assessed to defendants pursuant to Division of Industrial Services Rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this agency pursuant to Division of Industrial Services Rule 343 IAC 3.1. Signed and filed this ____ day of November, 1990. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Rd Keokuk IA 52632 Mr. Elliott R. McDonald, Jr. Attorney at Law P O Box 2746 Davenport IA 52809 5-2500 Filed November 28, 1990 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : RUTH M. MEAD, : : Claimant, : : vs. : : File No. 916787 FRUEHAUF CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-2500 Claimant awarded reasonable and necessary medical expenses including psychosexual therapy for a work related injury involving a right inguinal hernia.