Page 1 before the iowa industrial commissioner ____________________________________________________________ : JANET DAWDY, : : Claimant, : : vs. : : File No. 920139 SIOUXLAND QUALITY MEATS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE HARTFORD, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Janet Dawdy as a result of injuries to her head, neck and upper back which occurred on March 17, 1989. Defendants denied compensability for the injury and paid no benefits. The case was heard and fully submitted at Sioux City, Iowa, on April 11, 1991. The record in the proceeding consists of joint exhibits 1 through 20, defendants' exhibits 1 through 5 and testimony from claimant, James Dawdy and Jean Warren. issues The issues presented for determination are as follows: 1. Arising out of and in the course of employment; 2. Casual connection of the alleged injury to temporary disability and the extent thereof; 3. Causal connection of the alleged injury to permanent disability and the extent of industrial disability; 4. Commencement date for permanent partial disability; 5. Entitlement to medical benefits under Iowa Code section 85.27; and 6. Defendants' entitlement to section 85.38(2) credit for medical benefits. findings of fact Having considered all the evidence received the following findings of fact are made: Page 2 Claimant was employed as a quality control inspector by Siouxland Quality Meats on March 17, 1989. On that date she was working at the Boyden, Iowa packing plant which is about 60 miles one way from Sioux City. Employer also has a packing plant in Sioux City, Iowa. Claimant lived in Sioux City, Iowa, and occasionally performed work at the Sioux City plant, notwithstanding her full-time assignment to the Boyden plant on August 18, 1988 (defendants' exhibit 3). Claimant drove from her home in Sioux City, Iowa to Boyden each day, which is a round trip of about 120 miles. Employer paid claimant 22 cents per mile for the travel to and from the Boyden plant. Evidence indicated that claimant was not required to supply an automobile for her job. However, it is clear that employer did not provide transportation for claimant when commuting to the Boyden plant. It is found that the use of claimant's personal automobile when commuting was necessary in order for her to perform her duties at the Boyden plant. Employer benefited from claimant's use of her own automobile as demonstrated by the 22 cents per mile reimbursement. Claimant stated that she left for work each morning direct from her home in Sioux City, Iowa. She stated that as a general rule she would return direct to her home after completing a full day of work in Boyden. On Mondays, claimant's routine included a stop at the Sioux City, Iowa, plant in order to make deliveries and to attend meetings. When claimant finished work early at Boyden she would also return to the Sioux City plant in order to perform further work for employer. Claimant's paychecks were also issued at the Sioux City plant. Occasionally claimant would pick up the checks in person, but more often a family member picked up the checks on her behalf. Claimant was reimbursed at the rate of 22 cents per mile for 120 miles per day for each trip to Boyden. Jean Warren, who was an accounting manager for employer at the time of injury, stated that the mileage was meant to reimburse employees for travel from the Sioux City plant to the Boyden plant. No written policy was offered as evidence. Actual practice was for employees to leave from their home and travel direct to Boyden without stopping at the Sioux City plant. Warren also stated that claimant was not paid for her travel time to and from the Boyden plant. However, it is noted that claimant worked as a salaried employee. Claimant did not punch a time card or collect overtime for extra hours worked. Claimant often worked in excess of 12 hours per day according to her testimony. Having set forth the background information concerning claimant's employment as a salaried employee who was paid for travel to and from Boyden, Iowa, the specific facts of the injury can now be explored. Page 3 On March 17, 1989, claimant left her home in the early morning and drove to Boyden, Iowa, in order to perform work for employer. Claimant was paid mileage for this trip per the established practice (joint exhibit 17, page 26 and jt. ex. 4). While at the plant in Boyden, claimant received a message that she was to transport gallstones to the Sioux City plant upon her return home. The gallstones were transported as a convenience to the employer and had an estimated value of $5000 to $6000 (jt. ex. 17, pp. 28 and 40; def. ex. 1, p. 2). Claimant did transport the gallstone material to employer's Sioux City facility on March 17, 1989. While at the Sioux City plant, claimant requested her weekly paycheck, but it was not available. Claimant then departed the Sioux City facility and proceeded toward her home. While en route, claimant's vehicle was struck in the rear by another automobile. Claimant's head hit the back window and she sustained injuries to her head, neck and upper back. Claimant experienced pain and vomiting immediately after the collision. She was taken to the hospital and a long period of convalescence followed. Claimant was diagnosed as having incurred a myoligamentous strain of the neck and upper back (def. ex. 4, pp. 9 and 10; jt. ex. 9, p. 4). Claimant was initially treated by J.L. Weidemeier, M.D. She was later referred to Lionel H. Herrera, M.D., for treatment. On February 25, 1991, Dr. Herrera found that claimant's condition had reached maximum medical improvement and that 4 percent permanent partial impairment existed (jt. ex. 13, p. 13). However, Dr. Herrera did not state a causal connection between the permanent disability and the March 17, 1989 injury. The first issue is whether on March 17, 1989, while driving home, claimant incurred an injury arising out of and in the course of employment. The general rule is that going to and coming from the regular place of work does not place a claimant in the course of employment. In the case at hand, claimant's usual travel to and from her work in Boyden originated and ended at her home in Sioux City. It was only on Mondays that her work day usually ended at the Sioux City plant location. On Friday, March 17, 1989, claimant was instructed by employer to transport a package of employer's gallstones from the Boyden plant to the Sioux City plant. This directive caused claimant to deviate from her normal course on her way home. It is found that transport of the gallstones was a special errand directly related to claimant's employment and benefited the employer. The fact that claimant attempted to pick up her paycheck does not change the business purpose of her errand. But for employer's special request to deliver gallstones, claimant would not have deviated her course to the Sioux City plant. Claimant's travel on March 17, 1989, both to the Sioux City plant and on her way home, was a special trip made in response to a special request by employer so as to achieve a fast delivery of a package of gallstones. The transport of Page 4 the gallstones benefited employer in that a sale of an accumulation of the stones was forthcoming. It is found that on March 17, 1989, claimant sustained an injury to her head, neck and upper back arising out of and in the course of employment when the vehicle she was driving was struck from behind by another vehicle. The next issue to be decided is whether the injury is a cause of permanent disability. One opinion on permanent partial impairment was issued. Dr. Herrera, the treating physician, found 4 percent permanent partial impairment to the body as a whole (jt. ex. 13, p. 13). However, he did not state that the 4 percent impairment was causally connected to the March 17, 1989, injury (jt. ex. 4, p. 27). To find that the 4 percent was an assessment of work-related disability would be unduly speculative in light of Dr. Herrera's prior statements anticipating no disability (def. ex. 4, p. 10). It is found that claimant has failed to bring forth sufficient credible medical evidence which proves by a preponderance of the evidence that the injury of March 17, 1989, caused permanent disability. The next issue to be decided concerns claimant's entitlement to temporary total disability benefits. Claimant was hospitalized on March 17, 1989, as a result of the auto accident, but had already been compensated for a full day of work for employer. It follows that temporary total disability begins on the next day which is March 18, 1989. Starting on March 17, 1989 and continuing through February 19, 1991, claimant was under continuous active medical care for her headaches, neck and upper back pain. No release to return to work was issued by a doctor prior to the report dated February 19, 1991, which released claimant to perform light duty work effective February 25, 1991 (jt. ex. 13, p. 13). Defendants brought forth evidence of nonwork-related stress and a nonwork-related low back injury (def. ex. 4, pp. 24 and 27). It is found that the stress and a low back complaints were minor in comparison to claimant's work-related headaches, neck and upper back pain. Even if she had not incurred the stress and low back problems, claimant would still have been unable to resume gainful employment due to the severity of her upper back injury as demonstrated by the February 12, 1991, occupational therapy assessment (jt. ex. 13, p. 11). Furthermore, defendants failed to offer sufficient credible medical evidence which established that claimant's temporary disability would have lessened had she not incurred nonwork complications. It is found that claimant has proven by a preponderance of the evidence that as a result of the March 17, 1989, Page 5 injury to her head, neck and upper back she was temporarily totally disabled beginning March 18, 1989 through February 24, 1991. The next issue concerns claimant's entitlement to Iowa Code section 85.27 benefits. Defendants disputed that the medical expenses were authorized by employer. In this case, defendants denied liability as evidence by the hearing assignment order filed May 11, 1990 and the prehearing report and order approving the same which was presented at hearing. Defendants are precluded from directing medical care while at the same time denying liability. Defendants' authorization is found to be without merit as liability was denied. It is also disputed that a causal connection of the expenses to a work injury existed. It is true that claimant incurred some nonwork-related stress and low back pain. However, the evidence, when viewed as a whole, indicates that no additional expense was incurred for treatment of these minor intervening factors. Claimant's medical expenses would have been incurred even if she had not incurred the nonwork stress and low back pain. It is found that the medical expenses itemized in claimant's exhibit 20 are causally connected to the March 17, 1989 injury. It is also disputed that the expenses were incurred for reasonable and necessary medical treatment. Having reviewed the medical evidence as a whole it is found that the medical expenses were incurred for reasonable and necessary medical treatment. The treatment provided was directed at alleviating neck, upper back and head pain. Claimant eventually did obtain some relief as evidenced by the medical exhibits and her return to light duty work. Defendants allege entitlement to a credit for payment of medical benefits under a nonoccupational group plan in the amount of $10,782.23. The evidence indicates that the medical benefits were paid by claimant's private automobile insurance carrier. No evidence was presented revealing that the automobile insurance was a group plan contributed wholly or partially by employer as required by Iowa Code section 85.38. Defendants' claim for credit under section 85.38(2), therefore, fails. The final subissue concerning medical benefits concerns the amount claimant is to be reimbursed. It is established precedent that claimant may only receive direct reimbursement for medical expenses paid from her own funds. However, defendants are still responsible for payment of claimant's medical expenses. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that she received an injury on March 17, 1989, which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa Page 6 352, 154 N.W.2d 128 (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 he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128. Ordinarily an employee whose work begins when he arrives in the morning is engaged in his own business when he travels to work at the regular time. He is not then pursuing his master's business. But the same employee would be pursuing his master's business if his trip to and from the employer's premises were a special trip made in response to special request, agreement or instructions to go from his home to the plant to do something for the employer's benefit. In that case it is clear the entire trip would be his master's business and by all authorities would be held to be in the course of the employment. The reason for the so-called general rule announced by Chief Justice Hughes is that ordinarily the hazards the workmen encounter in such journeys are not incident to the employer's business. But he said: "*** this general rule is subject to exceptions which depend upon the nature and circumstances of the particular employment." Voehl v. Indemnity Ins. Co., 288 U.S. 162, 169, 53 S. Ct. 380, 382, 77 L. Ed. 676, 87 A.L.R. 245. [Pribyl v. Standard Electric Co., 246 Iowa 333, 339 67 N.W.2d 438, 442 (1954). See also Pohler v. T.W. Constr. Co., 239 Iowa 1019, 33 N.W.2d 416 (1948); Kyle v. Greene High School, 208 Iowa 1037, 226 N.W. 71 (1929).] Claimant has proven by a preponderance of the evidence that on March 17, 1989, she sustained an injury to her head, neck and upper back arising out of and in the course of employment with employer. The claimant has the burden of proving by a preponderance of the evidence that the injury of March 17, 1989, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). Claimant has failed to prove by a preponderance of the evidence that the injury of March 17, 1989, caused permanent disability. Except as provided in subsection 2 of this Page 7 section, the employer shall pay to an employee for injury producing temporary total disability weekly compensation benefits, as provided in section 85.32, until the employee has returned to work or is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. [Iowa Code section 85.33(1)] Claimant has proven entitlement to temporary total disability benefits beginning March 18, 1989 through February 24, 1991. The employer, for all injuries compensable under chapter 85 or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies; therefore, and shall allow reasonable necessary transportation expenses incurred for such services. The employer has the right to choose the provider of care. Iowa Code section 85.27. "Claimant is not entitled to reimbursement for medical bills unless he shows that he paid them from his own funds." See Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890 (Iowa App. 1983). Claimant has established entitlement to payment for medical expenses set forth in claimant's exhibit 20. Claimant is entitled to direct reimbursement for the expenses paid from her own funds. Credit for benefits paid under group plans. In the event the disabled employee shall receive any benefits, including medical, surgical or hospital benefits, under any group plan covering nonoccupational disabilities contributed to wholly or partially by the employer, which benefits should not have been paid or payable if any rights of recovery existed under this chapter, chapter 85A or chapter 85B, then such amounts so paid to said employee from any such group plan shall be credited to or against any compensation payments, including medical, surgical or hospital, made or to be made under this chapter, chapter 85A or chapter 85B. Such amounts so credited shall be deducted from the payments made under these chapters. Any nonoccupational plan shall be reimbursed in the amount so deducted. This section shall not apply to payments made under any group plan which would have been payable even though there was an injury under this chapter or an occupational disease under chapter 85A or an occupational hearing loss under chapter 85B. Any employer receiving such credit shall keep such employee safe and harmless from any and all claims or liabilities that may be made against them by reason of having received such payments only to Page 8 the extent of such credit. Defendants have failed to establish entitlement for a credit under Iowa Code section 85.38(2) for payment of medical benefits by claimant's automobile insurance company. order IT IS THEREFORE, ORDERED: Defendants are to pay claimant temporary total disability benefits at the rate of one hundred ninety-eight and 43/100 dollars ($198.43) for the period March 18, 1989 through February 24, 1991. Defendants are to pay claimant's Iowa Code section 85.27 expenses listed in claimant's exhibit 20 as outlined in the opinion. It is further ordered that defendants shall receive credit for benefits previously paid. It is further ordered that all accrued benefits are to be paid in a lump sum. It is further ordered that interest will accrue pursuant to Iowa Code section 85.30. It is further ordered that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. It is further ordered that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of May, 1991. ______________________________ MARLON D. MORMANN DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert Green Attorney at Law 215 Benson Bldg. Sioux City, Iowa 51101 Mr. James M. Cosgrove Mr. James P. Comstock Attorneys at Law 1109 Badgerow Bldg. PO Box 1828 Page 9 Sioux City, Iowa 51102 Page 1 51100 51801 51803 51108 Filed May 8, 1991 Marlon D. Mormann before the iowa industrial commissioner ____________________________________________________________ : JANET DAWDY, : : Claimant, : : vs. : : File No. 920139 SIOUXLAND QUALITY MEATS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE HARTFORD, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51100 Claimant sustained an injury while driving home after delivering a package of gallstones to employer. The delivery of the stones was made at employer's request and found to be a special errand. 51801 51803 51108 Claimant established entitlement to temporary total disability, but failed to prove permanent partial disability as no medical opinion causally connected the work injury to the permanent impairment or work restrictions. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LARRY E. GERBITZ, Claimant, File No. 920169 vs. A P P E A L SECOND INJURY FUND OF IOWA, D E C I S I O N Defendant. ____________________________________________________________ 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 September 11, 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 October, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. John H. Westensee Attorney at Law 1705 2nd Ave. Rock Island, IL 61201 Mr. Robert D. Wilson Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 9998 Filed October 28, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LARRY E. GERBITZ, Claimant, File No. 920169 vs. A P P E A L SECOND INJURY FUND OF IOWA, D E C I S I O N Defendant. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed September 11, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LARRY E. GERBITZ, : : Claimant, : : vs. : File No. 920169 : IBP, INC., : A R B I T R A T I O N : Employer, : D E C I S I O N Self-Insured, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by claimant, Larry Gerbitz, against the Second Injury Fund of Iowa as the sole defendant. Claimant sustained work-related injuries on July 31, 1987 and December 16, 1987. The case was heard at Davenport, Iowa on July 29, 1991 and was considered fully submitted upon conclusion of the hearing. The record in this proceeding consists of the testimony of the claimant; claimant's exhibit A; and, joint exhibits 1-5. On the day following the hearing, a representative from claimant's attorney's office gave the undersigned additional information to be considered as evidence in this case. Although the defendant Fund agreed to the admission of claimant's exhibit, the undersigned is unable to accept evidence after the hearing has been completed. See, rule 343 IAC 4.31 (no evidence shall be taken after the hearing). issue Pursuant to the prehearing report submitted and approved at the hearing, and in conjunction with the hearing assignment order, the sole issue to be determined is whether claimant has sustained an industrial disability. findings of fact The undersigned deputy, having heard the testimony and having thoroughly reviewed all of the evidence received, finds the following facts: Page 2 Claimant is a 46-year-old right handed man, married with one child. He completed the ninth grade, and obtained his GED in 1965 while serving in the Army. Claimant was in the infantry for three years, and in aviation for three years, and worked primarily as a helicopter mechanic and crew chief while in the service. Prior to joining the Army, claimant worked at a dairy farm in a position which required him to help bottle milk and operate milking machines. He described this position as a light manual labor job. Claimant has held other light manual labor positions, including managing a Texaco gasoline station, and working as a sample carrier in a sugar factory. Claimant has also worked as a maintenance man for the city of Thornton, Colorado, which required him to work on pumps, motors and check water pressures. Claimant has also worked as a press operator and as a security person. In 1987, claimant began to work for the IBP plant in Columbus Junction, Iowa. Claimant was placed on the sausage line, and was given a Whizard knife to trim fat from the meat. Claimant stated the products weighed two to three pounds, and that the finished product was placed in a bucket and lifted to a chain above his head. He stated that the bucket would weigh between 20 and 25 pounds. Claimant would place a bucket overhead on the chain every five to ten minutes. He worked ten hours per day, Monday through Friday, and a eight hour shift on Saturdays. The day claimant started at the plant, he sustained a work-related injury to his right knee. As a result of the injury, claimant underwent arthroscopic surgery which revealed broken ligaments and cartilage. The surgery was performed by William Catalona, M.D., an orthopedic surgeon and the plant physician. Specifically, Dr. Catalona found a ruptured anterior cruciate; a partial tear and degeneration of the posterior horn of the lateral meniscus; an ulceration with chondromalacia of the medial femoral condyle; and, moderate chondromalacia of the patella and degeneration of the posterior horn of the lateral meniscus. Surgery was performed on September 3, 1987, and claimant remained under Dr. Catalona's care until September 27, 1987, when he was released to return to work at IBP with restrictions of no frequent squatting, climbing stairs, jumping or running. (Joint Exhibit 4). Claimant has been given several functional impairment ratings due to the injury and subsequent surgery to the right knee. Dr. Catalona concluded that claimant had sustained a 20 percent impairment to the right lower extremity. (Jt. Ex. 4). Apparently, claimant secured a second opinion from an independent medical evaluator, Rouben Mirbegian, M.D., an orthopedic surgeon. He examined claimant on June 21, 1989, and upon positive findings, found claimant to have a 27 percent permanent impairment of the right lower extremity. It is not clear whether Dr. Mirbegian relied solely upon his examination in order to reach his conclusion, or if he had additional medical Page 3 information upon which to rely. (Jt. Ex. 7). Claimant also underwent an evaluation performed by Anthony D'Angelo, D.O. On July 25, 1988, Dr. D'Angelo concluded that claimant had sustained a 33 percent impairment of the right lower extremity due to the injury at IBP. (Jt. Ex. 5). Claimant also received a permanent impairment rating from F. Dale Wilson, M.D. His report dated August 2, 1990, provides the following information: In reply to your request for Permanent Impairment Ratings I have prepared the following schedule from A.M.A. Guide: 33% Right leg = 13% Person 8% Right arm = 5% Person 15% Left arm = 9% Person Combine 13, 9 = 21, 5 = 25% Person 25% total personal permanent disability. (Jt. Ex. 8) Once claimant was released to return to work, he returned to employment with IBP and subsequently sustained bilateral injuries to his wrists due to the repetitive nature of his job. He was sent to the Muscatine Health Center and was treated by Forrest Dean, M.D. Dr. Dean diagnosed a severe nerve latency across the carpal tunnel and referred claimant to Dr. Catalona for consideration of bilateral nerve decompression surgeries. (Jt. Ex. 2). On January 28, 1988, claimant presented to Dr. Catalona, who diagnosed bilateral carpal tunnel syndrome, worse on the right wrist. He recommended and subsequently performed a decompression of the median nerve in the carpal tunnel on the right side. (Jt. Ex. 4). Claimant has not had surgery to the left wrist. Page 4 Dr. Catalona made the following assessment on June 6, 1988: I have been treating the above since 8/7/87 for a rt knee injury and a R carpal tunnel syndrome which required surgery. In my opinion Mr. Gerbitz is physically disabled from returning to his job permanently. (Jt. Ex. 4). In addition to the ratings by Dr. Wilson, claimant has been given several additional impairment ratings with respect to the carpal tunnel injuries. Dr. D'Angelo, on July 25, 1988, stated that claimant had sustained the following impairments: It is my opinion there is an 8% impairment of the right upper extremity secondary to loss of strength and some persistent numbness and tingling. .... An impairment was determined to the left upper extremity as per patient's request. It is my opinion a carpal tunnel syndrome is present. Current impairment rating to the left upper extremity is that of 15% on the basis of loss of strength, numbness and tinglilng. [sic] I would expect this impairment to improve if patient underwent surgical decompression. (Jt. Ex. 5) Dr. Mirbegian also documented his opinion with respect to claimant's impairment due to the carpal tunnel problems. His records indicate that claimant has a five percent functional permanent impairment of his right upper extremity due to the condition of his right hand. Dr. Mirbegian did not feel claimant had permanent impairment of the left upper extremity due to the carpal tunnel symptoms. (Jt. Ex. 7). Since the right carpal tunnel release, claimant quit his job with IBP, and has secured employment delivering papers. He works approximately three and one/half hours per day, and earns gross wages of $300 per week. analysis and conclusions of law The sole issue to be addressed is whether claimant has sustained an industrial disability and the extent of the liability of the Second Injury Fund of Iowa. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Section 85.64 governs Second Injury Fund liability. Page 5 Before liability of the Fund is triggered, three requirements must be met. First, the employee must have lost or lost the use of a hand, arm, foot, leg or eye. Next, the employee must sustain a loss or loss of use of another specified member or organ through a compensable injury. Finally, permanent disability must exist as to both the initial injury and the second injury. The Second Injury Fund Act exists to encourage the hiring of handicapped persons by making a current employer responsible only for the amount of disability related to an injury occurring while that employer employed the handicapped individual as if the individual had had no preexisting disability. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' Compensation-Law and Practice, section 17-1. The Fund is responsible for the difference between total disability and disability for which the employer at the time of the second injury is responsible. Section 85.64. Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970). Interest accrues on benefits the Fund pays commencing on the date of the decision. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990). As examined under the Facts section of this decision, claimant sustained a prior permanent disability to his left lower extremity. Impairment ratings for this particular extremity range from 20 percent to 33 percent permanent functional impairment. Defendant Second Injury Fund argues that it is relieved of liability because claimant's prior injuries are not disabilities which caused lost employment opportunities. The defendant Fund also argues that because claimant sustained a bilateral injury, he does not meet the criteria necessary under the applicable code section. The undersigned is not persuaded by either of the Fund's arguments. The basic principal behind the establishment of the fund was to encourage employers to hire employees who suffer preexisting disabilities. To hold that claimant would not be entitled recover benefits from the Fund merely because he sustained two injuries on account of one episode would defeat the purpose behind the Fund's intent. And, as claimant has sustained some permanent injuries, lost employment opportunities are possible. Having rejected the Fund's arguments, it is found that case presents sufficient facts to warrant holding the Fund responsible for the amount of industrial disability which remains after the prior impairments, and the amount of disability which resulted from the latter injury, are subtracted. It is necessary to evaluate claimant's industrial disability. Page 6 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, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability 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. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Larry Gerbitz is a middle-aged man, who has a varied prior employment record. His most extensive experience has been as a security guard, a job which he earned $7.50 per hour. It is noted that claimant also has experience working on a dairy farm, as a gas station manager, providing Page 7 maintenance services, and shipping and receiving work. Claimant has not, for an extended period of time, worked on an assembly line. Claimant finished the ninth grade in school, and although he has received his GED, it may be difficult for him to obtain employment in jobs other than minimum paying jobs unless he undergoes some additional training or educational program. Claimant testified that he has partially completed a correspondence locksmithing course. However, he needs to complete some paper work before he completes the course. On an emotional and intellectual basis, claimant appeared average. His motivation to return to employment suitable to his background is marginal at best. Claimant did not display a concerted effort to return to a position which would provide an extended, stable position in the work force. The evidence indicates that claimant's earnings during the years prior to his injury hovered at between $12,000 to $14,000 per year. His wife has contributed to the overall income of the household. Since the injury, claimant has pursued employment at approximately 50 businesses, but has had no job offers. Claimant stated that many of the job applications inquired about the applicant's physical condition. Claimant has sustained an actual loss of earnings, but his lack of motivation to find suitable employment that has a pay scale comparable to that of IBP or other jobs is probably as much to blame as his injuries. However, claimant may not be as attractive to some employers due to his impairments. It was not shown that jobs previously held by claimant would require him to perform an extensive amount of squatting, climbing stairs, running or jumping. Likewise, his employment background does not consist of jobs that require repetitious wrist movements. After considering all of the factors that comprise an industrial disability, it is found that claimant has sustained 15 percent loss of earning capacity. To determine the Fund's liability additional analysis of all impairment ratings given to the claimant by four doctors is warranted. With respect to ratings for the left and right upper extremities, the undersigned rejects Dr. D'Angelo's impairment ratings, as the ratings appear to be inconsistent with the objective findings documented at claimant's final session with Dr. D'Angelo on June 23, 1988: 1) Left upper extremity... Exam reveals Phalen's sign to cause a heavy Page 8 feeling after one minute to all four feelings. This may be interpreted as some parasthesias, numbness or tingling. He specifically denies any numbness or tingling. Denies any pain. Tinel's sign is negative. He shows no atrophy of thenar emminence, hypothenar emminence, or interosseous musculature. His grip grip [sic] strength appears satisfactory. Sensation to light touch is slightly diminished in the ulnar and median nerve distribution of this hand. 2) Right upper extremity... On clinical exam, Tinel's sign is negative. Phalen's sign is negative after 2 minutes. Muscle strength right upper extremity is Grade V throughout. Grip strength appears to be satisfactory. No atrophy of hand intrinsic musculature. Does have satisfactory radial, median and ulnar nerve motor and sensory function of the right hand although he may have a slight decrease in sensation to light touch at the ulnar nerve distribution of the right hand. He has a negative Tinel's sign over Guyon's canal. (Jt. Ex. 5). Impairment ratings with respect to claimant's right knee range from 20 percent to 33 percent. Dr. Catalona performed the surgery on claimant's right knee, and guided claimant through the recovery process. However, his rating of 20 percent is inadequate, as it does not denote, specifically, the basis for the impairment. And, Dr. Catalona's opinion that claimant could not return to his job at IBP is in conflict with all other evidence presented in the case, including Dr. Catalona's course of treatment in the earlier stages of claimant's medical care. Specifically, Dr. Catalona released claimant to return to work at IBP after the knee surgery. Although Dr. Catalona performed the right carpal tunnel release, he failed to provide an impairment rating for the right wrist. It does not seem realistic that after the wrist surgery, claimant became totally disabled from any type of work at IBP. Dr. Catalona's ratings and final assessment of claimant's ability to return to work at IBP are rejected. Likewise, Dr. Wilson's impairment ratings are rejected. He states no basis for the amounts of impairment given, and it is unclear as to what information Dr. Wilson relied upon in reaching his conclusions. Dr. D'Angelo's ratings are also rejected. His findings are in direct conflict with the ratings given. Dr. Mirbegian appears to present the best documentation of claimant's objective physical problems, and therefore, the undersigned relies upon all ratings given by him. As a result, the Fund's liability is determined by Page 9 using the following formula: 75 weeks (industrial disability resulting from combined effects of all injuries) - 59.40 weeks (impairment value of the prior loss: 27% of 220 weeks) - 12.50 weeks (impairment value of the second injuries for which defendant employer is responsible: 5% of 250 weeks for right upper extremity) ______________ 3.1 weeks (number of weeks of benefits for which the Fund is liable). order THEREFORE, it is ordered: That claimant is entitled to three point one (3.1) weeks of permanent partial disability benefits to be paid by the Second Injury Fund of Iowa at the rate of one hundred ninety-one and 10/100 dollars ($191.10) per week. That defendant shall pay the accrued weekly benefits in a lump sum, and credit against same. That defendant shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendant shall pay the costs of this action pursuant to rule 343 IAC 4.33. That defendant shall file an activity report upon payment of this award as required by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of September, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr John H Westensee Attorney at Law 1705 2nd Avenue Rock Island IL 61201 Page 10 Mr Robert D Wilson Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines Iowa 50319 5-1800 Filed September 11, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : LARRY E. GERBITZ, : : Claimant, : : vs. : : File No. 920169 IBP, INC., : : A R B I T R A T I O N Employer, : Self-Insured, : D E C I S I O N : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ 5-1800 Claimant, 46-year-old male, sustained two separate injuries while working for IBP. The first injury was to the knee, and the second a right carpal tunnel. Claimant was not motivated to return to full-time work. He was awarded 15 percent industrial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : BONNIE L. CROOK, : : Claimant, : File No. 920176 : vs. : A P P E A L : AMES TRAVEL INN, a/k/a AMES, : D E C I S I O N TRAVEL LODGE, TRAVEL INN, : : Employer, : Defendant. : ____________________________________________________________ _____ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. issues The issues on appeal are: Whether it is an abuse of discretion to order that the evidence and activity of the employer is cut off for failure to appear at a dispute resolution conference. Whether it is error to assess costs for both the November 27, 1991 and March 10, 1992 dispute resolution conferences in which the employer failed to appear. Whether it was error to fail to sustain the employer's motion for sanctions because the employer had not been able to complete its offer of proof. findings of fact The record in this matter shows the following activity. The original notice and petition was filed September 27, 1990. On November 15, 1990 the employer filed a letter indicating that it had retained counsel and all correspondence should be addressed to the counsel named. On January 15, 1991 the agency ordered the employer to file an answer. That order was sent to the claimant's attorney, the employer, and the employer's attorney. The order indicated that no appearance had been made by the person named as the employer's attorney. The copy of the order to the employer was sent certified mail and was returned unclaimed to the agency. In a letter dated February 3, 1991 the employer indicated that he had been unsuccessful in numerous attempts to contact his counsel. An answer was filed by the attorney on behalf of the employer on February 7, 1991. On May 31, 1991 claimant requested a mediation conference. A notice of dispute resolution conference was scheduled for November 27, 1991. That notice warned that Page 2 failure to comply would result in the imposition of sanctions pursuant to rule 343 IAC 4.36. Neither the defendant nor the defendant's attorney appeared at the dispute resolution conference scheduled for November 27, 1991. On August 29, 1991 claimant requested an independent medical examination. The request was granted on September 24, 1991 after it was noted that no answer or other pleading had been submitted on behalf of the employer. A second dispute resolution conference was scheduled for March 10, 1992. The notice of that conference also warned of the imposition of sanctions for failure to comply with the order. Both of the notices for dispute resolution conference were sent to defendant's attorney at the time. Again neither defendant nor defendant's attorney appeared at the dispute resolution conference. In an order dated March 11, 1992 a deputy industrial commissioner ordered that all evidence and activity of the employer was cut off pursuant to rule 343 IAC 4.36. On March 11, 1992 claimant filed a motion for taxation of costs for the costs and expenses of claimant and her attorney for the two ordered mediation conferences. Claimant attached a bill of particulars to the motion. The motion indicates it was mailed to both the employer and the employer's attorney. On March 16, 1992 employer's counsel to that date withdrew and the employer's current counsel entered his appearance. No resistance to claimant's motion for taxation of costs appears in the record. On March 31, 1992 a ruling was made which ordered that the employer pay claimant her costs and expenses totalling $440 as set out in the bill of particulars. On May 4, 1992 defendant filed a motion for reconsideration of the orders of March 11, 1992 (cutting off evidence and activity) and March 31, 1992 (payment of costs). That motion was resisted by claimant on May 6, 1992. The motion for reconsideration was denied in a ruling dated May 17, 1992 which stated in relevant part: In this case, defendant was given a second opportunity to appear after missing the first conference. Defendant was contacted by the agency to set the second conference. Defendant agreed to the time, date and place of the second conference. Defendant made no effort to contact the agency to advise that it could not attend or that the parties differences were too great to make the dispute resolution profitable. The absolute disregard for orders of the agency cannot be tolerated, hence the sanction. The motion for reconsideration will be denied. This matter came on for hearing as scheduled on June 15, 1992. The following are excerpts from the hearing. THE ADMINISTRATIVE LAW JUDGE: This is File No. 920176. This matter is captioned Bonnie Crook, Claimant, versus Ames Travel Inn, also known as Ames Travel Lodge and Travel Inn. And am I correct that there is no insurance carrier; is Page 3 that correct? MR. TREVINO: The American Family Insurance has denied the existence of any coverage for workers' compensation liability, although the defendant has given notice of the claim--of this claim to the insurance company. But they have refused to provide a defense or to provide any coverage for any injury arising out of this incident. .... THE ADMINISTRATIVE LAW JUDGE: I do not have the authority to overturn any ruling or order which has been made by another deputy industrial commissioner. We are not allowed that jurisdiction, and we are not allowed to modify those particular orders or rulings. To clarify, it's my understanding that the cutting off of one's evidence and activity includes cutting off the offering of evidence and it also cuts off presenting witnesses as well as cross-examination of claimant's witnesses. I understand that you'll want to preserve your error throughout the duration of the hearing, and defendants will be allowed to do that. At the close of claimant's case, again, I will leave the room and consider the case submitted as far as the case in chief is concerned, and then defendant and claimant may make whatever record they need to under the offer of proof, and again, to make myself clear for the benefit of the defendant, the exhibits which will be given to me at a later point today will be marked A, B, C, but they will not be considered by me as part of the case in chief. They are merely being submitted to preserve any error and to make a record in behalf of defendants. But I want them to understand that I am not allowed to review those particular documents when rendering a decision at this time. MR. TREVINO: Two question [sic], if I may. First, am I precluded from making any objections to the testimony offered by the claimant? THE ADMINISTRATIVE LAW JUDGE: It's my understanding when you're cut off from the evidence and the activity that you will not be allowed to make objections. MR. TREVINO: All right. And then second of all. With respect to the offer of proof, we anticipate that that record will eventually be transcribed. I'm just thinking of the exhibits. We're going to want the exhibits a part of that record as well. THE ADMINISTRATIVE LAW JUDGE: Right. MR. TREVINO: Do you want separate copies of the Page 4 exhibits, then, today, and then to have the court reporter take with her the same copies-- THE ADMINISTRATIVE LAW JUDGE: That would be fine. MR. TREVINO: --so she can make them part of the record later on it. THE ADMINISTRATIVE LAW JUDGE: That would be fine. And also, if you want to cross-examine the witnesses after I leave as part of your offer of proof, I will allow that, but not in my presence. MR. TREVINO: Okay. A proposed decision was filed June 24, 1992. The proposed decision awarded claimant 36.857 weeks of healing period benefits, 40 weeks of permanent partial disability benefits, and medical benefits in the sum of $992.70. On June 29, 1992 defendant filed a motion for sanctions against claimant for claimant's refusal to submit to cross-examination during defendant's offer of proof. That motion was resisted by claimant on July 6, 1992. Defendant filed its notice of appeal on July 13, 1992. On July 23, 1992 a ruling was issued which stated that the motion for sanctions would be considered when the appeal was considered. conclusions of law The first issue to be resolved is whether it is an abuse of discretion to cut off the evidence and activity of the employer in this case. Iowa Code section 86.8 provides in relevant part: The commissioner shall: 1. Adopt and enforce rules necessary to implement this chapter and chapters 85, 85A, 85B, and 87. Rule 343 IAC 4.36 provides: If any party to a contested case or an attorney representing such party shall fail to comply with these rules or any order of a deputy commissioner or the industrial commissioner, the deputy commissioner or industrial commissioner may dismiss the action. Such dismissal shall be without prejudice. The deputy commissioner or industrial commissioner may enter an order closing the record to further activity or evidence by any party for failure to comply with these rules or an order of a deputy commissioner or the industrial commissioner. Rule 343 IAC 4.40 provides in relevant part: Page 5 The industrial commissioner or the industrial commissioner's designee (hereinafter collectively referred to as the industrial commissioner) shall have all power reasonable and necessary to resolve contested cases filed under Chapter 4 of these rules. This power includes, but is not limited to, the following: the power to resolve matters pursuant to initiation of mandatory dispute resolution proceedings by the industrial commissioner; the power to resolve matters pursuant to a request by the parties; the power to impose sanctions; and the power to require conduct by the parties. However, no issue in a contested case may be finally resolved under this rule without consent of the parties. (Emphasis added.) In this case the employer is apparently neither insured nor self-insured for its workers' compensation liability. See Iowa Code section 87.1 which requires an employer to be insured or self-insured. No answer was filed to the original notice and petition by the employer until this agency ordered the employer to do so. See rule 343 IAC 4.9 which requires a timely answer. The employer failed to answer or file a responsive pleading to a request for independent medical examination. The employer failed to appear at the first scheduled dispute resolution conference. The dispute resolution conference was rescheduled and the defendant was contacted to set the second conference. The employer again failed to appear at a dispute resolution conference. The reason given for the employer's failure to appear was that employer's counsel at the time had failed to notify the employer of the conference and the necessity to appear. There is no argument that employer's counsel, who was the counsel of record, received the notice. Both orders setting the dispute resolution conference warned that failure to comply with the order could result in sanctions. This agency clearly has authority to impose sanctions for failure to comply with an order. The employer, prior to retaining current counsel, clearly exhibited and demonstrated a blatant and total disregard for the law, agency rules, and not one but two orders from this agency setting a dispute resolution conference. The employer offers no good cause why sanctions should not be imposed. It is appropriate that the employer's evidence and activity be cut off. Rules 343 IAC 4.40 and 4.36 recognize that this agency must have the authority to order compliance with the proceedings before the agency and impose sanctions when warranted. It should be noted that this decision should not be interpreted as an indication to willingly engage in award of benefits not due and owing. However, the parties must conduct themselves in such a manner so that they can protect their interests. The second issue to be resolved is whether it is error to assess costs against the employer for failure to appear Page 6 at the dispute resolution conferences. Rule 343 IAC 4.40, supra, allows imposition of sanctions. In this case claimant incurred expenses of both attorney time and claimant's travel. These expenses wee incurred not once but twice. Because the employer or the employer's representative appeared at neither dispute resolution conference, these expenses were expenses that should not have been incurred. It is appropriate that the employer in this case be responsible for those expenses. The last issue to be resolved is whether it was error to fail to sustain the employer's motion for sanctions because the employer had not been able to complete its offer of proof. This issue is irrelevant as the resolution of the first issue above was that the employer's evidence and activity was properly cut off prior to the hearing. Because the employer's evidence was cut off the employer can offer no evidence in this matter. The motions for sanctions on the offer of proof is now irrelevant. Two things should be noted. One is that the motion for sanctions was filed after the proposed decision had been issued. The second thing to be noted is that no award made in the proposed decision is an issue on appeal. WHEREFORE, the decision of the deputy is affirmed. order THEREFORE, it is ordered: That the employer's evidence and activity was properly cut off before the evidentiary hearing. That the claimant's motion for taxation of costs and certain attorney's fees was properly granted. Employer shall reimburse claimant for costs and expenses for four hundred forty and 00/100 dollars ($440.00). That the defendant's motion for sanctions for failure of claimant to participate in the offer of proof is irrelevant. That defendant shall pay the costs of this matter including transcription of the hearing and shall reimburse claimant for the filing fee if previously paid by claimant. Signed and filed this ____ day of January, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Philip F. Miller Page 7 Attorney at Law 309 Court Ave., Ste 200 Des Moines, Iowa 50309 Mr. Tito W. Trevino Attorney at Law P.O. Box 1680 Fort Dodge, Iowa 50501 2906 Filed January 22, 1993 Byron K. Orton MAM before the iowa industrial commissioner ____________________________________________________________ _____ : BONNIE L. CROOK, : : Claimant, : File No. 920176 : vs. : A P P E A L : AMES TRAVEL INN, a/k/a AMES, : D E C I S I O N TRAVEL LODGE, TRAVEL INN, : : Employer, : Defendant. : ____________________________________________________________ _____ 2906 Employer's evidence and activity was properly cut off by the deputy when the employer failed to appear at two dispute resolution conferences. There was no justification given by the employer's attorney for failure to appear. The only excuse offered by the employer was that the employer had not been told when the conferences were scheduled. The date for the second conference was set after consulting the employer's representative. Claimant was awarded attorney's fees and travel expenses incurred for attending the two dispute resolution conferences when the employer failed to appear. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : BONNIE L. CROOK, : : File No. 920176 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N AMES TRAVEL INN, A/K/A AMES : TRAVEL LODGE, TRAVEL INN, : : Employer, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Bonnie Crook, against her uninsured employer, Ames Travel Inn a/k/a Ames Travel Lodge, Travel Inn, defendant. The case was heard on June 15, 1992 at the Colony Building in Des Moines, Iowa. Prior to the date of the hearing, Deputy Industrial Commissioner, Elizabeth A. Nelson, filed an order on March 11, 1992. In her order, Deputy Nelson ordered that: 1. That the evidence and activity of Ames Travel Inn is cut off for failure to appear at the dispute resolution conference scheduled for March 10, 1992 pursuant to rule 343 IAC 4.36. 2. Claimant may make an application for her costs and expenses including attorney fees in connection with the dispute resolution conferences scheduled for November 27, 1991 and March 10, 1992. On March 31, 1992, Deputy Nelson filed a ruling on motion for costs. In that ruling Deputy Nelson wrote: THEREFORE, it is ordered that Ames Travel Inn shall pay to claimant her costs and expenses totaling $440.00 as more fully set out in the bill of particulars attached to the motion for costs and expenses filed on March 11, 1992. A motion for reconsideration was filed by defendant on May 4, 1992. The motion was denied by Deputy Nelson in her ruling on motion for reconsideration which was filed on May 12, 1992. Defendant, at the hearing, renewed its motion to reconsider. The undersigned hearing deputy denied the motion to reconsider. Defendant was not allowed to present evidence or to engage in activity. However, defendant, at the close of the hearing, and out of the presence of the undersigned, was allowed to make an Page 2 offer of proof. At the hearing, exhibits 1-5 were admitted. Several of claimant's exhibits were illegible. Pages 16-20 were nearly impossible to read. The record also consisted of the testimony of claimant and that of her spouse. ISSUES The issues to be determined are: 1) Whether claimant received an injury which arose out of and in the course of employment; 2) whether there is a causal relationship between the alleged injury and the disability; 3) whether claimant is enti tled to temporary disability/healing period benefits or permanent disability benefits; and 4) whether claimant is entitled to any medical benefits pursuant to section 85.27. FINDINGS OF FACT Claimant is 30 years old. She is married with one child. Claimant completed the tenth grade but she dropped out of high school after that. Claimant has had no formalized training since leaving high school. Most of claimant's work experiences have involved unskilled positions at a minimum wage rate. She has engaged in housekeep ing and clean-up jobs. She has been a production worker, a dish washer, and she has operated an industrial oven. Her maximum wage level has been $4.00 per hour. On or about May 1, 1989, claimant was hired by defendant as head housekeeper at the rate of $3.50 per hour. Her duties included cleaning; vacuuming; dusting; flipping mattresses and changing sheets; emptying waste baskets; and supplying rooms with fresh towels. Claimant sustained a work-related injury on or about July 23, 1989. At the time she was cleaning a motel room. She bent over to pick up wet towels from the floor, she straightened up and felt pain in her lower back. She reported the injury to management. On July 27, 1989, claimant sought medical attention at the McFarland Clinic, P.C. The doctor's note for that day stated: Ms. Crook complains of a sore back since Tuesday. She was working as a housekeeper and was having to lift mattresses on that day. At the end of the day, her back was quite sore, has remained sore for the last two days despite her taking off work and resting at home. She denies any numbness or tingling or pain down into the leg initially. It is tender over the left SI joint and somewhat over the lower lumbar spine. On EXAM, pt. is tender over the low back. Motor exam is limited by pain. On sensory exam, pt. complains of a stocking-like distribution of numbness in the left foot. Reflexes are 1+/4 bilaterally. They are Page 3 symmetric. IMPRESSION: Sciatica. Pt. is given prescription for Flexeril 10 mg. one t.i.d. #15 without refills. Prescription for Motrin 800 mg. one t.i.d. with meals #30 with three refills. She is advised on rest and local heat. She is given a slip to stay off work until the August 7. (Exhibit 3, page 11) John A. Grant, M.D., of the McFarland Clinic, P.C., examined claimant on September 21, 1989. In his report of September 23, 1989, Dr. Grant opined: It appears to this examiner that this represents a strain of the lumbosacral spine and I anticipate that a period of time off work with physical therapy and medi cation will see the resolution of her symptoms. (Ex. 3, p. 12) In a later report dated April 7, 1990, Dr. Grant authored another medical opinion. He opined in relevant portion: From a physical standpoint, she stands erect with some tenderness at the L4 level. She is slightly restricted in flexion with her fingertips reaching only within about 6-8 inches of the floor. Tilting and turning to the right and left appear to be slightly reduced. Straight leg raising is to 90 degrees both right and left. Deep tendon reflexes are hypoactive but equal and there is no specific weakness. As I have mentioned, this young lady has far more sub jective complaints than objective findings but despite this, she has very slight limitation of motion and she is limited in what she can do because of problems with low back pain and radicular pain on the left. I would advise her to get into some type of work that had some limitations on weight lifting. She could probably lift 25-30 pounds on an occasional basis and on a more active basis, 10-15 pounds but it should not be a con stant repetitive process as often is the case with a production line. She should certainly avoid repeated bending or twisting and I think she should avoid stand ing for longer than 60-70 percent of her work day and certainly she should not have to stand in one place for long periods. From my standpoint, I think her future will be one of looking for work that does not stress her back and I do not foresee major medical expense although I suspect she will need mild analgesics from time to time and may on occasion need office type treatment for back pain. With the fact that she does have radicular symptoms despite a normal CAT scan, there is the outside Page 4 possibility that she might develop disc protrusion in the future which is unlikely but nevertheless a possibility. Based on her current status, I think she has an impair ment rating of 4 percent of the body as a whole as a direct result of her back problems. (Ex. 3, pp. 5 & 6) Claimant participated in physical therapy on a sporadic basis. She incurred medical expenses, but not all of the submitted $1,194.88 in expenses were work-related. Claimant also incurred mileage expenses from Gilbert, Iowa to Ames, Iowa, a distance of 17 miles each trip according to the "Iowa State Transportation Map." At the time of the hearing claimant was unemployed. She testified she had applied at 40-50 places of business. She could recall only 8 of the 50 businesses. They were: 1) Arnold's Motor Supply 2) Silver Saddle Motel 3) Comfort Inn 4) Midas Muffler 5) New Frontier Motel 6) Quality Inn 7) Bonanza Restaurant 8) Casey's General Store Claimant had one appointment at the Division of Vocational Rehabilitation Services. She was unwilling to engage in retraining. CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circum stances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disabil ity on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the Page 5 causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circum stances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Claimant's testimony at hearing is uncontroverted that she has sustained a work-related injury to her low back on July 23, 1989. Likewise, the issue of causation is uncontroverted. Dr. Grant writes: "I think it is distinctly probable that the work she was doing was the proximate cause of her symptoms as near as I can determine." (Ex. 3, p. 7). His medical opinion is unchal lenged. Claimant has proven the requisite elements which estab lish that her injury arose out of and in the course of her employment. She has proven that the injury is causally related to her medical condition. The next issue to address is the nature and extent of her condition. Claimant has a normal CT scan. Her range of motion is only slightly restricted. Claimant is not taking prescription medications. Dr. Grant has placed the following restrictions on her: She could probably lift 25-30 pounds on an occasional basis and on a more active basis, 10-15 pounds but it should not be a constant repetitive process as often is the case with a production line. She should certainly avoid repeated bending or twisting and I think she should avoid repeated bending or twisting and I think she should avoid standing for longer than 60-70 percent of her work day and certainly she should not have to stand in one place for long periods. (Ex. 3, p. 6) The restrictions are moderate. Dr. Grant has rated claimant has having a four percent func tional impairment to the body as a whole. It appears to the undersigned that the rating is primarily based on subjective com plaints and only minimally based on objective evidence. However, his opinion is uncontroverted. Therefore, it is the determina tion of the undersigned that claimant has a permanent disability. Claimant argues she has an industrial disability. Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability is defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Page 6 Functional impairment is an element to be considered in determining industrial disability which is the reduction of earn ing capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience, motiva tion, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Claimant's earning capacity has been reduced, only mini mally, by this work injury. Claimant has testified that all of her former jobs have only paid minimum wages. She has only per formed unskilled positions. It is likely that she will never be able to perform skilled positions at anything more than minimum wage. Claimant is unmotivated. She does not wish to engage in retraining or even extensive testing through the Iowa Department of Education. Claimant has exhibited only moderate effort in any job search. It is the determination of the undersigned that claimant has sustained a permanent partial disability in the amount of eight percent. She is entitled to 40 weeks of benefits. Claimant's benefit rate is calculated as follows: $ 3.50 per hour x avg. 33 hours per week (30-36) $115.50 gross weekly wages Claimant is married with three exemptions. Using the Guide to Iowa Workers' Compensation Claim Handling, July 1, 1989, claimant is entitled to $88.79 per week. Claimant is also entitled to healing period benefits pur suant to section 85.34(1). Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recov ery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). Claimant's healing period commenced on July 24, 1989. It Page 7 ended on April 7, 1990, the date Dr. Grant released claimant to return to substantially similar work. She is entitled to 36.857 weeks of healing period benefits at the rate of $88.79 per week. Claimant is also entitled to medical expenses pursuant to section 85.27. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabili tation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary trans portation 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). Page 8 Defendant is liable for the following: 11-6-89 Mary Greeley Medical Center $397.30 1-19-90 Mary Greeley Medical Center 449.00 $846.30 Defendant is to reimburse claimant for: back brace $ 75.00 Defendant is to reimburse claimant for mileage to and from medical treatment. Claimant lives 17 miles from Ames. Records indicate she has had treatment for her work injury on: 9-26-89 Mary Greeley Hospital 34 miles 10-05-89 " " " " " 10-10-89 " " " " " 10-12-89 " " " " " 10-17-89 " " " " " 10-24-89 " " " " " 1-19-90 " " " " " 7-27-89 McFarland Clinic, PC 34 miles 9-21-89 " " " " " 4-04-90 " " " " " Total = 340 miles 340 miles x .21/mile = $71.40 ORDER THEREFORE, IT IS ORDERED: Defendant is to pay unto claimant thirty-six point eight-five-seven (36.857) weeks of healing period benefits at the rate of eighty-eight and 79/l00 dollars ($88.79) per week. Defendant is to also pay unto claimant forty (40) weeks of permanent partial disability benefits at the rate of eighty-eight and 79/l00 dollars ($88.79) per week commencing on April 8, 1990. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year pur suant to section 85.30, Iowa Code, as amended. Defendant is to also pay medical benefits and mileage as aforementioned in the sum of nine hundred ninety-two and 70/l00 dollars ($992.70). Defendant is responsible for costs as provided by rule 343 IAC 4.33. Defendant shall file a claim activity report as requested by this division and pursuant to rule 343 IAC 3.l. Signed and filed this ____ day of May, 1992. Page 9 ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Philip F. Miller Attorney at Law Saddlery Building STE 200 309 Court Avenue Des Moines, Iowa 50309 Mr. Tito Trevino Attorney at Law 801 Carver Building P.O. Box 1680 Ft. Dodge, Iowa 50501 1402; 5-1803; 2900; 2901; 3700 Filed June 24, 1992 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : BONNIE L. CROOK, : : File No. 920176 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N AMES TRAVEL INN, A/K/A AMES : TRAVEL LODGE, TRAVEL INN, : : Employer, : Defendant. : ___________________________________________________________ 1402; 2900; 2901; 3700 Defendant failed to appear for two mediation conferences which had been set prior to the hearing. The deputy industrial commissioner who presided over the mediation conferences filed an order on March 11, 1992 hereby the evidence and activity of the defendant was cut off for failure to appear. Defendant filed a motion to reconsider on May 4, 1992. The deputy denied the motion. At the hearing, defendant renewed its motion. The hearing deputy denied the motion to reconsider. Defendant was not allowed to present evidence or to engage in activity. However, defendant, at the close of the hearing, and out of the presence of the hearing deputy, was allowed to make an offer of proof. 5-1803 Claimant was awarded an 8 percent permanent partial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RHONDA WOOD, : : Claimant, : File No. 920194 : vs. : A R B I T R A T I O N : NORTHWEST FABRIC & CRAFTS, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ statement of the case This is a proceeding in arbitration upon the September 19, 1989 petition of claimant Rhonda Wood for benefits under the Iowa Workers' Compensation Act from her defendant self-insured employer, Northwest Fabrics & Crafts. This cause came on for hearing in Des Moines, Iowa, on November 14, 1990. The record consists of joint exhibits A through K and the testimony of claimant, Belen Fernandez, M.D., Timothy Wood and Diane Conway. issues The parties have stipulated that claimant sustained an injury arising out of and in the course of her employment with Northwest Fabrics & Crafts on March 22, 1989 and that certain benefits were paid voluntarily prior to hearing. Issues presented for resolution include: 1. Whether there exists a causal relationship between the work injury and any subsequent temporary or permanent disability; 2. The nature and extent of claimant's disability, if any; and, 3. Whether claimant is entitled to medical benefits under Iowa Code section 85.27. Page 2 findings of fact The undersigned deputy industrial commissioner, having heard the testimony and considered all of the evidence, finds: Rhonda Wood, 35 years of age at hearing, is a 1973 high school graduate. She has held several jobs, but has largely kept occupied as a homemaker since leaving high school. Claimant has an extensive history of seeking medical treatment for numerous symptoms. In particular, she was treated by James Elliott, D.O., for numerous ailments in the year prior to the work injury, including bruising, vertigo, allergies, shoulder, chest, jaw and neck pain, headaches, altered gait, panic attacks and blurred vision. Dr. Elliott's chart notes of March 9, 1989 reflect (as best as this observer can make out the doctor's handwriting) complaints of rib pain since the previous Sunday in the left clavicle area, indicating that pain had been intermittently present since an earlier motor vehicle accident. A standard calender shows that the Sunday preceding March 9, 1989 fell on March 5. Assessment was of rib pain, probably costochondritis (inflammation of a cartilage at the rib). It is clear from subsequent medical records that costochondritis commonly refers to inflammation of the cartilage at the site of the rib and sternum, but the record does not disclose whether the term can refer to the rib/ clavicle area. Claimant, whose memory is impaired by ongoing electroconvulsive therapy, does not recall these complaints. On March 22, 1989, claimant was employed in the course of her duties as a supervisor in a retail business operated by defendant. The site was undergoing remodeling and a large shipment of formica and wood counters was delivered. Claimant and another employee laboriously disassembled these materials and transported them into the store. While doing so, claimant developed chest pain. The evidence is inconsistent as to what happened next. On direct examination, claimant testified that she heard a "pop" in her chest that evening, which she believed to be a separation of her sternum and third rib. However, on cross-examination, claimant testified that the "popping" incident occurred the following morning while she was stretching in bed, although she had preexisting chest soreness. In deposition testimony given on May 9, 1990, claimant testified: Q. Then I understand from the history you've given before that you went home that evening and then the next morning you got up and you stretched and your chest popped; is that right? A. Yes. Q. What was the feeling? Could you hear it? A. Yes, it was like a knuckle popping. Page 3 Q. Was it just after you'd gotten out of bed? A. No, it was a few hours later. Q. Was there something unusual about the stretching motion? A. No. Q. Just kind of stretched back (indicating)? A. That's correct. Q. Okay. My motion was moving my arms backwards, moving my chest out; is that right? A. Just sitting up straight. Q. You head a pop? A. Yes. Q. Did you feel it-- A. Yes. Q. --separate? A. Yes. Q. Okay. Did you have pain after that? A. I had had pain from the time that I was working on carrying them in. Q. Explain what that pain felt like. A. Felt like a burning. Q. So it was kind of a burning? Was it in the middle of your breastbone or where is it? A. It's almost right on the chest bone, just to the right. Q. Okay. Then after the pop, did the pain get worse or not? A. It continued to get worse throughout the weekend. (Rhonda Wood deposition, page 33, line 23 through page 35, line 8) Claimant saw Dr. Elliott again on March 24. His chart notes make note of "popping" left costochondritis, but mention no history. On March 30, chart notes reflect a work injury of March 22 while carrying fixtures at work, quoting claimant as reporting "injured ribs/chest" and "hurting all Page 4 over." Those chart notes appear to be written in a different handwriting than the immediately subsequent notes apparently written by Dr. Elliott. Dr. Elliott's notes, to the extent legible, indicate complaints of anterior chest wall pain and starting of popping at the junction of the ribs and sternum starting later that night. Assessment was of costochondral separation. Because of the specificity and detail contained in the transcript testimony, it appears most probable to this writer that claimant's deposition testimony as to when she suffered the "popping" incident which she believes was the actual costochondral separation is the most reliable. The separation had still not healed as of October 17, 1990, in Dr. Elliott's view. Swelling of the region has been found by physical therapists in 1990 and Dr. Fernandez, a treating psychiatrist who testified at hearing and by deposition on September 14, 1990, is still able to reproduce popping at that juncture. Other physicians are of the view that claimant exaggerates symptoms or that the symptoms are themselves a product of psychiatric disorder. The record is replete with evidence that claimant's behavior since this incident has been erratic and she has presented to numerous physicians with very wide ranging physical complaints not related to the original rib injury. Well-qualified psychiatrists disagree as to whether the costochondral separation produced or aggravated claimant's psychiatric disorders, or, the other way around, whether preexisting psychiatric disorders have produced and magnified her symptomatology. The writings of numerous physicians in this record take as a given that claimant sustained the costochondral separation as a work injury. No physician directly addresses the question of whether the "popping" incident on the day following the exertion of which Ms. Wood makes complaint was in fact the actual separation, or whether it was causally related to that exertion. conclusions of law Defendant has stipulated that claimant sustained an injury arising out of and in the course of employment. Given the facts of this case, the meaning and effect to be given that stipulation is not a routine matter. As has been seen, defendant disputes whether the work injury is causally related to temporary or permanent disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of March 22, 1989 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). Page 5 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). Without question, claimant suffered anterior chest wall pain and soreness after exerting herself in the course of employment on March 22, 1989. Soreness remained through the next day, but the "popping" that she identifies as the actual separation occurred several hours after arising on March 23. Defendant's stipulation that claimant sustained a work injury--chest wall soreness--on May 22 does not necessarily correlate to conceding that the "popping" incident many hours and a full night's sleep later is part of the same incident or causally related thereto. Given this gap in time between soreness and a rather traumatic "popping" at the affected joint, and given the uncertainty as to claimant's history of probable costochondritis from about a week and one-half before, it must be concluded that claimant has failed to meet her burden of proof in establishing that the actual costochondral separation is part and parcel of or caused by the anterior chest wall pain and soreness related to exertion at work. Claimant's further physical disability is clearly related to the costochondral separation, but it is the etiology of the separation itself that remains unproven. Accordingly, other issues are rendered moot. order THEREFORE, IT IS ORDERED: Claimant shall take nothing. The costs of this action shall be assessed to defendant pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Page 6 Mr. Robert W. Pratt Attorney at Law 6959 University Avenue Des Moines, Iowa 50311 Mr. Marvin E. Duckworth Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 1108 Filed April 22, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : RHONDA WOOD, : : Claimant, : File No. 920194 : vs. : A R B I T R A T I O N : NORTHWEST FABRIC & CRAFTS, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 1108 Claimant suffered chest soreness after exertion at work. On the following day, several hours after getting up, she suffered a traumatic "popping" separation of the cartilage at the third rib and sternum while stretching--at home. Although defendant stipulated to "arising out of," causal connection remained in dispute. All doctors (many, many doctors, as claimant also suffers psychiatric problems) take it as a given that the separation occurred at work. No physician addressed the issue of whether the "popping" separation was part of or caused by work exertion the day before. Held that claimant failed to prove her disability was caused by work injury.