BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROSIE TOPPING, File No. 921090 Claimant, A R B I T R A T I O N VS. D E C I S I O N RIVIERA LTD., d/b/a RIVIERA BALLROOM, F I L E D Employer, MAY 21 1990 Uninsured, Defendant. INDUSTRIAL SERVICES INTRODUCTION This is a proceeding in arbitration brought by Rosie Topping against her former employer, Riviera Ltd., d/b/a Riviera Ballroom. The employer did not appear at hearing and is in default for lack of appearance. The employer was served with original notice and petition of this action by certified mail on or about September 26, 1989 as shown by proof of service in the file. The return receipt was addressed to Riviera Ballroom and the signature "Heine Kurtz" appears on the return receipt. Claimant's testimony established that Heine Kurtz is the adult son of David Kurtz, one of the operators of the business. A professional statement from claimant's counsel established that David Kurtz is the registered agent of the corporation for service according to records in the office of the Iowa Secretary of State. The caption of the case was amended to include Riviera Ltd. Testimony from the claimant established that the employer held itself out and did business under the name Riviera Ballroom, as well as its actual corporation name of Riviera Ltd. The file also reflects that on January 4, 1990 an order was entered which closed the record to further evidence or activity by the employer as a result of the employer's failure to comply with an order from the agency to file an answer. Claimant's counsel, by way of professional statement, indicated that he had spoken on the telephone with David Kurtz shortly before April 30, 1990 at which time he informed Kurtz of the time and place of the hearing and at which time Kurtz related that he had no workers' compensation insurance and no assets. Exhibit 3 is a letter sent by counsel to confirm the occurrence of their conversation. The case was heard and fully submitted at Waterloo, Iowa on May 16, 1990. The record in the proceeding consists of testimony from Rosie Topping and claimant's exhibits 1, 2 and 3. Claimant waived having a verbatim record made of the hearing. ISSUES In view of the employer's default, claimant was faced with the burden of proving all elements of the case, namely, injury arising out of and in the course of employment, entitlement to weekly compensation for healing period and permanent partial disability, the rate of compensation and entitlement to additional compensation under the fourth unnumbered paragraph of Code section 86.13. FINDINGS OF FACT Having heard the testimony and examined the exhibits, the following findings of fact are made. Rosie Topping was hired by Dave Kurtz to work at the bar and restaurant known as Riviera Ballroom starting in late August or early September, 1988. Topping worked Friday and Saturday nights from 5:00 p.m. until approximately 2:00 or 2:30 a.m. She was paid $3.00 per hour and also earned approximately $15.00 per night in tips. She typically earned $84.00 per week. At the time, she was also employed at the North Cedar Truck Stop as a cook and waitress where she earned $165.00 per week. On October 1, 1988, Topping was pulling a cart with dishes at the Riviera Ballroom when it fell over on her. Her left knee swelled immediately and she was unable to walk on it. David Kurtz knew that the incident occurred and had his girlfriend take her home because she was unable to complete her work shift. The knee was swollen and claimant was unable to walk on it. The following day, she sought treatment at the Sartori Hospital emergency room. She eventually came to be treated by orthopaedic surgeon Arnold E. Delbridge, M.D. She had arthroscopic surgery on December 22, 1988 after conservative treatment had been unsuccessful. Dr. Delbridge authorized claimant to return to work on January 20, 1989 (exhibit 1, page 4). In a report dated May 14, 1990, he rated her as having a five percent impairment of her left leg as a result of the knee injury (exhibit 1, page 1). During the course of treatment, claimant received physical therapy at Sartori Hospital. The anesthesiologist for the knee surgery was Beth Penrose, M.D. According to claimant, all the medical expenses shown in exhibit 2 were incurred in obtaining treatment for the knee injury. She denied having any problems with her knee prior to October 1, 1988 and denied any subsequent or intervening trauma to the knee. It is found that Rosie Topping injured her left knee when she slipped at the Riviera Ballroom on October 1, 1988 and that the injury necessitated all the treatment she received for the knee and the charges shown in exhibit 2. The medical services which were provided to her were reasonable and the charges for those services as shown in exhibit 2 are reasonable. In the course of obtaining that treatment, she made 35 round trips at 5 miles per trip to the office of Dr. Delbridge and Sartori Hospital. Claimant was medically incapable of performing work in employment substantially similar to that she performed at the time of injury from October 1, 1988 until January 20, 1989, a span of 16 weeks. Claimant has a five percent impairment of her left leg as a result of the injury. At the time of injury, claimant's weekly earnings from the Riviera Ballroom were $84.00 and her weekly earnings from North Cedar Truck Stop were $165.00. The employer was aware of the injury, the manner in which it occurred and has offered no defense to the claim. CONCLUSIONS OF LAW Claimant has the burden of proving by a preponderance of the evidence that she received an injury on October 1, 1988 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 352, 154 N.W.2d 128 (1967). Claimant's testimony was unrebutted and clearly establishes that the injury to her left knee arose out of and in the course of her employment. The claimant has the burden of proving by a preponderance of the evidence that the injury of October 1, 1988 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 had no prior problems with the knee and had no subsequent trauma to the knee. Dr. Delbridge attributes the treatment and permanent impairment to the injury (exhibit 1, page 1). It is therefore concluded that the injury of October 1, 1988 is a proximate cause of the healing period, medical treatment, medical expenses and permanent partial disability. As claimant has a 5 percent permanent impairment of her left leg, she is entitled to recover 11 weeks of compensation for permanent partial disability under Iowa Code section 85.34(2)(o). Claimant had been employed by Riviera for one month and at the truck stop for six months at the time of injury. Prior to that, she had been out of the job market for a considerable amount of time. In her work for the employer, claimant earned only $84.00 per week, an amount which is clearly less than the normal weekly earnings of the full-time adult worker in any line of industry or occupation. It was her second job. Her primary job paid $165.00 per week. The primary job was in the same line of industry as the job at which she was injured. This case does not fit well under section 85.36. It can be reasonably urged that claimant's rate of compensation should be determined under the provisions of Code section 85.36(10). The record also reflects, however, that claimant was paid by the hour. Accordingly, it could be reasonably urged that claimant's rate of compensation should be computed under the provisions of Code section 85.36(6). Nothing in Code section 85.36 restricts subsections (1) through (9) to full-time employment. In fact, the definition of weekly earnings contained in 85.36 states: Weekly earnings means gross salary, wages or earnings of an employee to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee's employer for the work or employment for which the employee was employed, . . [Emphasis added]. It is clearly stated in the first paragraph of Code section 85.36 that the weekly rate of compensation should be based upon the employee's customary earnings. This agency has recognized and followed that concept in cases where the rate was determined under Code section 85.36(6) by excluding weeks which were not representative of typical or customary earnings. Lewis v. Aalf's Mfg. Co., I Iowa Industrial Commissioner Report 206, 207 (App. Decn. 1980); Schotanus v. Command Hydraulics, Inc., I Iowa Industrial Commissioner Report 294, 298 (1981). It is well recognized that Code section 85.36(10) provides an unrepresentative wage if it is applied to an employee who has not been in the labor force for the full preceding 12 months. Lawyer and Higgs, Iowa Workers' Compensation Law and Practice, section 12-8. The gross weekly earnings when computed under those circumstances are obviously only a fraction of the customary earnings. Code section 85.36(7) provides a statutory exception to the 13-week rule provided by section 85.36(6). The agency has ruled that where no evidence is presented with regard to the hours of work the employee would have earned if the employee had been employed for the full 13 calendar weeks immediately preceding the injury, the proper method of computing the gross weekly earnings is to simply divide the total earnings by the number of weeks actually worked. Barker v. City Wide Cartage, I Iowa Industrial Commissioner Report 12, 15 (App. Decn. 1980). The intent when determining the rate of compensation is to base the rate upon the customary.earnings. Foster v. Plaza Restaurant & Lounge, file number 821588 (Arb. Decn. 1989). Since claimant had been employed by the employer for only one month, it does not appear as though the earnings from the Riviera Ballroom were part of her customary earnings. She has not typically through her work history held a second job. It is therefore determined that her earnings at the North Cedar Truck Stop establish the level of earnings for the full-time adult worker in that line of industry or occupation. Her rate of compensation is therefore based upon an earning level of $165.00 per week. Since she is single and has no exemptions other than herself, the rate of compensation is therefore $106.31. The employer offered no defense to the claim and none is apparent from the record. It is therefore determined that the failure to pay compensation was unreasonable and the full 50 percent penalty authorized by Code section 86.13(4) is appropriate. Since all the medical expenses submitted in exhibit 2 have been found to represent the reasonable charges for reasonable treatment which was proximately caused by the injury, the employer is responsible for the full amount of $2,934.45 under Code section 85.27. Claimant is also entitled to recover costs as shown in exhibit 2 in the amount of $100.00. ORDER IT IS THEREFORE ORDERED that the employer pay claimant sixteen (16) weeks of compensation at the rate of one hundred six and 31/100 dollars ($106.31) per week commencing October 1, 1988 for healing period. IT IS FURTHER ORDERED that the employer pay claimant eleven (11) weeks of compensation for permanent partial disability at the rate of one hundred six and 31/100 dollars ($106.31) per week payable commencing January 21, 1989. IT IS FURTHER ORDERED that the entire award for healing and permanent partial disability is past due and shall be paid in a lump sum together with interest pursuant to Iowa 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 pay claimant the sum of one thousand fouR hundred thirty-five and 18/100 dollars ($1,435.18) representing fifty percent (50%) of the twenty-seven (27) weeks compensation which was unreasonably denied under Iowa Code section 86.13(4). The entire amount thereof is payable in a lump sum and draws interest from the date of this decision. IT IS FURTHER ORDERED that claimant recover from the employer the following medical expenses: A. E. Delbridge, M.D. $ 579.00 Beth Penrose, M.D. 243.00 Radiological Associates, P.C. 22.00 Sartori Hospital 2,053.70 Rosie Topping, mileage 36.75 Total $2,934.45 IT IS FURTHER ORDERED that claimant recover from the employer the costs of this action pursuant to Division of Industrial Services Rule 343-4.33 in the amount of one hundred and 00/100 dollars ($100.00). IT IS FURTHER ORDERED that the employer file a first report of injury and claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 21st day of May, 1990. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert C. Andres Attorney at Law 616 Lafayette Street P.O. Box 2634 Waterloo, Iowa 50703 Riviera Ballroom Hwy 218 Janesville, Iowa 50647 CERTIFIED MAIL Mr. David Kurtz 5010 West Mount Vernon Road Cedar Falls, Iowa 50613 CERTIFIED MAIL 5-1802, 5-1803, 5-4000.2 Filed May 21, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROSIE TOPPING, Claimant, File No. 921090 vs. A R B I T R A T I 0 N RIVIERA LTD., d/b/a RIVIERA BALLROOM, D E C I S I 0 N Employer, Uninsured, Defendant. 5-1802, 5-1803, 5-4000.2 Claimant with uninsured employer awarded healing period, scheduled member permanent partial disability and 50% penalty for unreasonable failure to pay the claim. Page 1 before the iowa industrial commissioner ____________________________________________________________ : EVALINA GLESS, : : Claimant, : File Nos. 921093 & 921094 : vs. : : A R B I T R A T I O N CEL JANITORIAL SERVICES, : : D E C I S I O N Defendant. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Evalina Gless as a result of injuries to her back which occurred on October 26, 1988 and November 5, 1988. Defendant admits compensability for the October 26, 1988, injury and denies compensability for the November 5, 1988 injury. No benefits were paid by defendant in either case. The case was heard and fully submitted at Davenport, Iowa, on March 6, 1991. The record in the proceeding consists of joint exhibits A through D, defendant's exhibits 2 through 10, the testimony of claimant, Connie Robins and Clifford Robins. issues The issues presented for determination in file number 921093 are as follows: 1. Claimant's entitlement to medical benefits under Iowa Code section 85.27; and 2. Taxation of costs. The issues presented for determination in file number 921094 are as follows: 1. Whether claimant sustained an injury on November 5, 1988, which arose out of and in the course of employment with employer; 2. Claimant's entitlement to temporary total disability; 3. Whether claimant gave timely notice of her claim pursuant to Iowa Code section 85.23; 4. Claimant's entitlement to medical benefits under Iowa Code section 85.27; and 5. Taxation of costs. findings of fact Page 2 Having considered all the evidence received the following findings of fact are made: Claimant, Evalina Gless, worked for CEL Janitorial Services in October and November of 1988. She was a working supervisor of a group of workers who cleaned office buildings. On October 26, 1988, claimant, as an employee of defendant, was assisting with the disposal of bags of trash by depositing the bags into a tall dumpster. The bags weighed between 25 pounds and 50 pounds. claimant testified that the lifting of one bag caused a severe pain in her low, mid and upper back. Claimant returned to work immediately and lost no time as a result of the October 26, 1988 accident. Claimant sought treatment from Peter R. Mitchell, D.C., for the back pain that was caused by the October 26, 1988 injury. She received treatment on October 27, 1988 and October 29, 1988, before sustaining another back injury on November 5, 1988, when she was involved in an automobile accident. The accident on November 5, 1988, is alleged to be work related by claimant. Claimant had been involved in various work activities off and on during the day of November 5, 1988. At times claimant's work for employer would require her to work evenings and into the early morning hours. Claimant reported to Connie Robins who was the wife of a part-owner of CEL Janitorial. On the evening of November 5, 1988, claimant left the home of Connie Robins after finishing the day's work for defendant. Claimant told Connie Robins that she was going home. Claimant left Robins' house at about 9:30 to 10 p.m. on November 5, 1988. While on her way home, claimant noticed that the lights were on at the Northwest Bank Tower. Claimant testified that this bank was one of defendant's clients and it was her responsibility to see that all lights were turned off after cleaning had been performed. Claimant did not immediately turn left into several available entrances to the bank. Claimant stated that it was a cold icy night and that it took some time for her to get to a left lane in order to make a left turn. Claimant did make a left turn at a stop light which was beyond the bank. Claimant stated that she was turning left so as to return to the bank in order to shut off the lights. However, it should be noted that this left turn would also be necessary should claimant take the interstate highway on her way home. Claimant never completed the left turn because another driver ran a light and struck claimant's vehicle. She was rendered partially unconscious and was taken to the hospital. Claimant testified that as a result of the November 5, 1988, automobile accident she experienced increased back pain. The pain was in the same area as the pain caused by the October 26, 1988, injury. Claimant stated that the back pain was in the same area, but worse than before. Page 3 Subsequent to November 5, 1988, claimant sought treatment from Dr. Mitchell. She became dissatisfied with his services and went under the care of John T. Rader, D.C., on November 7, 1988. She continued on with treatment by Dr. Rader. Claimant returned to work for employer on November 6, 1988, and worked on November 7, November 8 and November 9. Claimant's employment with defendant was terminated on November 10, 1988, for reasons unrelated to this case. Claimant testified that her work for defendant subsequent to November 5, 1988, was supervisory in nature. Claimant was unemployed beginning November 10, 1988, and found new employment on March 22, 1989. Claimant alleges that she was temporarily totally disabled during this time as the treating doctor had placed restrictions upon her work activities. Connie Robins testified that she worked for CEL Janitorial in October and November 1988. Robins' husband is a part-owner of CEL Janitorial. She stated that on the night of November 5, 1988, claimant stated that she was going home by the shortest route which was the interstate. Clifford Robins testified that he is a part-owner of CEL Janitorial. He stated that on November 5, 1988, he was in England. He testified that his company was responsible for turning off the bank lights only after CEL employees had cleaned. It was his belief that CEL employees only cleaned the bank's lobby on Saturdays. The remaining upper floors of the multi-story bank bulding were to be cleaned Monday night through Friday night. The first issue to be resolved concerns whether claimant sustained an injury on November 5, 1988, arising out of and in the course of employment with employer It is the general rule in Iowa that work begins at the time a worker arrives at employer's place of employment and ends when the worker leaves the premises. It is claimant's burden to prove by a preponderance of the evidence that at the time of the accident on November 5, 1988, she was in the course of employment. The evidence clearly reveals that just prior to the accident, claimant was on her way home and not in the course of employment. The evidence also reveals that the left turn which claimant attempted resulted in an automobile accident. The left turn could be interpreted as a turn which would take claimant to the interstate highway and on to her home. It could also be interpreted as a diversion back to a work site at the Northwest Bank Tower. Claimant had the opportunity to turn toward the bank several times prior to coming to the intersection where the accident occurred. It is found that claimant has failed to prove by a preponderance of the evidence that she was in the course of employment at the time of the November 5, 1988, automobile Page 4 accident. Claimant failed to prove that she had altered her route on the way home so as to take her back to the work site. Claimant has failed to prove that she sustained an injury on November 5, 1988, which arose out of and in the course of employment with employer. This issue is dispositive of all other issues in file number 921094 and further analysis is unnecessary with the exception of taxation of costs which will be addressed later in the decision. The next issue concerns claimant's entitlement to medical benefits in file number 921093. It was stipulated that claimant sustained an injury to her low back on October 26, 1988, arising out of and in the course of employment with employer. She began receiving medical treatment for back pain on October 27, 1988, and continued on with such treatment into 1989. However, as previously discussed, claimant incurred an intervening injury on November 5, 1988. The question becomes whether subsequent to November 5, 1988, the treatment was related to the October 26, 1988 injury. It is found that claimant has failed to prove that her treatment for back pain, subsequent to November 5, 1988, was related to the earlier injury. The issue of causation is primarily one for medical experts. In this case, the treating doctor was of the opinion that claimant's treatment, subsequent to November 5, 1988, was related to the injury of the same date (joint exhibit C and D2). Dr. Rader's opinion is more credible than other medical providers as he treated claimant for a longer period of time than did Dr. Mitchell. The next question concerns the extent of entitlement to benefits prior to November 5, 1988. Defendant's exhibit 4 reveals that claimant was treated by Dr. Mitchell on October 27, 1988, and October 29, 1988, with a resulting cost of $85. Claimant testified that the treatments were a direct result of the October 26, 1988 injury. It is found that the medical expenses incurred with Dr. Mitchell on October 27, 1988 and October 29, 1988, were causally connected to the work injury of October 26, 1988. It is also found, based upon testimony and exhibits, that the treatment rendered by Dr. Mitchell was reasonable and necessary medical treatment for a spinal injury. Claimant has proven entitlement to reimbursement for $85 of medical expenses in file number 921093. The last issue concerns taxation of costs. Such costs may be assessed at the discretion of the deputy commissioner hearing the case. In the case at hand, claimant's costs consist of her filing costs and any costs associated with the taking of Clifford Robins' deposition. Defendant's costs are listed as costs of taking the claimant's deposition and the cost of Page 5 attendance of a court reporter at the hearing on March 6, 1991. Since each party prevailed in one case, it is appropriate for the respective parties to pay their own costs. That is, claimant is responsible for her filing fees in both file numbers and for the expense of taking Clifford Robins' deposition. Defendant is responsible for the costs of claimant's deposition and the cost of the court reporter's attendance at the March 6, 1991 hearing. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that she received an injuries on October 26, 1988 and November 5, 1988, 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 352, 154 N.W.2d 128 (1967). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). "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, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). Unless it can be fairly said the employee, while going to or from his regular place of work is engaged in a place where his employer's business requires his presence, his injury en route is not compensable. It does not arise out of and in the course of his employment. .... The general rule is conceded to be that the course of employment commences after the employee reaches the premises where his actual work begins and is carried on and ceases when he leaves. Otto v. Independent School District, 237 Iowa 991, 993, 994; 23 N.W.2d 915, 916 (1946). Claimant has failed to prove by a preponderance of the evidence that she sustained an injury on November 5, 1988, arising out of and in the course of employment. Claimant takes nothing from file number 921094. The opinions of experts need not be couched in Page 6 definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an incomplete history is not binding upon the commissioner, but must be weighed together with the other disclosed facts and circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). In regard to medical testimony, the commissioner is required to state the reasons on which testimony is accepted or rejected. Sondag, 220 N.W.2d 903 (1974). 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 has proven entitlement to payment of medical expenses in file number 921093 totalling $85. All costs incurred in the hearing before the deputy commissioner shall be taxed in the discretion of the deputy commissioner unless otherwise required by the rule of civil procedure governing discovery. Iowa Code section 86.40. Rule 343 IAC 4.33. The parties are responsible for payment of their own costs as specified in the decision. order IT IS THEREFORE, ORDERED: That claimant's petition in file number 921094 is dismissed. That claimant take nothing in file number 921094. That defendant pay to claimant eighty-five dollars ($85) as Iowa Code section 85.27 expenses in file number 921093. That the parties pay their own respective costs in file number 921093 and 921094 as outlined in the findings of fact. Signed and filed this ____ day of April, 1991. ______________________________ MARLON D. MORMANN DEPUTY INDUSTRIAL COMMISSIONER Page 7 Copies to: Mr. Jack Schwartz Attorney at Law 1800 3rd Ave. STE 308, Safety Bldg. Rock Island, Illinois 61201 Mr. Allan Hartsock Attorney at Law PO Box 4298 Rock Island, Illinois 61204-4298 Page 1 52500 51100 51107 Filed April 1, 1991 Marlon D. Mormann before the iowa industrial commissioner ____________________________________________________________ : EVALINA GLESS, : : Claimant, : File Nos. 921093 & 921094 : vs. : : A R B I T R A T I O N CEL JANITORIAL SERVICES, : : D E C I S I O N Defendant. : ___________________________________________________________ 52500 In first file number, liability was stipulated and claimant established entitlement to medical benefits. 51100 51107 Claimant was in auto accident while on her way home. Claimant alleged that she was actually turning around to go back to work at a work site where lights had been left on. Claimant failed to establish that the accident arose out of and in the course of employment. Page 1 52500 51100 51107 Filed April 1, 1991 Marlon D. Mormann before the iowa industrial commissioner ____________________________________________________________ : EVALINA GLESS, : : Claimant, : File Nos. 921093 & 921094 : vs. : : A R B I T R A T I O N CEL JANITORIAL SERVICES, : : D E C I S I O N Defendant. : ___________________________________________________________ 52500 In first file number, liability was stipulated and claimant established entitlement to medical benefits. 51100 51107 Claimant was in auto accident while on her way home. Claimant alleged that she was actually turning around to go back to work at a work site where lights had been left on. Claimant failed to establish that the accident arose out of and in the course of employment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ GUSTAVO ARAUJO, Claimant, File No. 921097 vs. A P P E A L IBP, INC., D E C I S I O N Employer, Self-Insured, 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 19, 1990 is affirmed and is adopted as the final agency action in this case. Defendant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of June, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. J. W. Conway Attorney at Law P.O. Box 237 Muscatine, Iowa 52761 Ms. Marie L. Welsh Litigation Attorney P.O. Box 515, Dept. #41 Dakota City, NE 68731 9998 Filed June 30, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ GUSTAVO ARAUJO, Claimant, File No. 921097 vs. A P P E A L IBP, INC., D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed September 19, 1990. Page 1 before the iowa industrial commissioner ____________________________________________________________ : GUSTAVO ARAUJO, : : Claimant, : : File No. 921097 vs. : : IBP, INC., : A R B I T R A T I O N : Employer, : D E C I S I O N Self-Insured, : Defendant. : ___________________________________________________________ statement of the case This case came on for hearing on September 7, 1990, in Burlington, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits to his hand/upper extremity as a result of an alleged injury occurring November 16, 1988. The record in the proceeding consists of the testimony of the claimant and Sherri Wilson, and joint exhibits A through J. A tape was made of the testimony of claimant as claimant was unable to speak English. As provided under the provisions of Chapter 622A, an interpreter was provided and the tape preserved. The parties agreed that the interpreter has a total of five hours at the rate of $15 per hour and as provided under 622A.4 as to fees set by the court, the parties agreed that $75 would be assessed as part of the costs for the services of the interpreter. issues The issues for resolution are: 1. Whether claimant's injury arose out of and in the course of his employment; 2. Whether claimant's alleged condition is causally connected to his November 16, 1988 injury; 3. The nature and extent of claimant's disability and entitlement to disability benefits; 4. Whether claimant gave timely notice under the provisions of Iowa Code section 85.23; 5. Whether claimant is entitled to temporary partial disability benefits if it is found the employee refused to accept suitable work, as provided under Iowa Code section 85.33(3); and, 6. Whether claimant is entitled to Iowa Code section Page 2 85.27 medical benefits. findings of fact The undersigned deputy having heard the testimony and considered all the evidence, finds that: Claimant is a 35-year-old Mexican emigrant who lived in defendant employer's housing in Washington, Iowa while working for defendant employer until he was expelled from this housing after his surgery in December 1988. Claimant is married and his wife is living in Mexico with claimant's three dependent children. The last time claimant lived with his wife and children was in 1986 but they have never been divorced and he emphasized there was no reason to. The last time claimant sent money to his family was approximately five months ago when his brother gave him $200 to send. Claimant said he sent his wife money when he was working at IBP and estimated the amount to be approximately $200. Claimant came to the United States the latter part of December 1986. The parties agreed in their prehearing report that claimant was single with one exemption. It appears obvious that this stipulation was contrary to the facts. It does appear that the parties may not have known until the claimant's testimony as to the number of exemptions as the attorneys seemed surprised. It was also obvious that they just presumed he was single and had only one exemption. The language barrier may have aided in this confusion. The undersigned finds that claimant is married and has three children and any rate would be based on five exemptions. Claimant first began working for IBP on November 9, 1988. After the first few days of work, claimant felt his finger and left hand become stiff and hurting. On November 16, 1988, claimant was working on the assembly line area in which his duties involved hooking the hogs along the conveyor belt. On this date, claimant indicated the line was moving quite fast and some of the hooks were falling on the floor. Claimant bent over to pick up a hook and the line continued to move with the hogs. In desperation, claimant tried to catch and bring together the hogs on line and in the process injured his hand. Claimant was then unable to exercise control over his fingers and eventually was unable to move them. Since claimant was unable to speak English, he looked for the company interpreter, Claudio Meza, and told him of his injury. He indicated Mr. Meza was going to notify the bosses, one of which was a Mr. Griffin. Although claimant had not been working for defendant employer very long, and was not familiar with people's names, he was able to determine the bosses from the different color of helmets certain employees would wear. Claimant relied on Mr. Meza to tell his employer and the claimant indicated that Mr. Meza did tell two supervisors, one of which was Mr. Griffin, in the presence of claimant, that claimant was unable to move his hand. Claimant said that he was told he was preoccupied with his problem and it was only the result of Page 3 being tired. Claimant was told to go to the infirmary, which he did. Claimant said he had to put his left hand in wax at the infirmary. Claimant couldn't recall the exact days involved but it is obvious from the evidence and the time frame that this all took place in a very short period of time from claimant's November 16, 1988 injury. Claimant said that this hand wax treatment at the infirmary did not help and the employer put him back to work at an easy job. Claimant's hand did not get better and he could not control his finger. Claimant said he would tell his bosses that he needed to see a doctor and they said "no." Defendant employer indicated that the hand would get better. Claimant said this lasted approximately two more weeks. Claimant only told Mr. Meza, the interpreter, to tell the company that claimant could not continue working and wanted to see a doctor. Claimant understood that Mr. Griffin, his foreman, received the message and understood Mr. Griffin indicated he didn't care. Claimant then left work and went to Muscatine, Iowa, to look for a doctor and a lawyer. Claimant's last day of work was December 10, 1988. Claimant went to Leo Kulick, M.D., in Muscatine, at a medical clinic. Claimant understood that defendant employer has used doctors at this clinic previously. On or around December 14, 1989, claimant had carpal tunnel syndrome-type surgery which left a scar beginning on the middle of his left hand, up his wrist and arm to approximately three or four inches below his elbow. On February 7, 1989, Dr. Kulick's notes indicate that claimant's condition: May take up to a year post op to determine what his final functional baseline will be. Has gained sufficient improvement at this time to restore the intrinsic balance of the hand, though there is still a pronounced deficit in grip strength. Anticipate that there will be some degree of motor deficit at maximal recovery. Sufficiently healed at this point in time to ret to work w/several restrictions. Will be difficult since he is a laborer. Should avoid strenuous, repetitive high- volume work, similar to the type which precipitated his injury. Should also avoid strenuous grip maneuvers, particul [sic} when he is still weak, which require generation of more than 20-30 lbs of lift force in 1t upper ext. To continue wearing a night splint for next 2 mos; continue w/regular exercise program as currently. (Joint Exhibit A, page 2) Claimant last saw Dr. Kulick on this February 7, 1989 visit. Claimant is living in Chicago and is currently unemployed. Claimant was out of work approximately four months when he got a dish washing job that was part-time for approximately five months. Claimant said that he tried to get a factory job, but when they saw his scars they would not hire him. Claimant never did return back to Iowa to see Page 4 the doctor for any impairment rating even though the doctor had indicated on February 7, 1989 that it may take up to a year to determine his final functional baseline. Claimant is being supported currently by his brother with whom he lives in Chicago. Sherri Wilson, who was in the security department at the time of claimant's alleged injury and later promoted to the workers' compensation coordinating position in March 1989, testified that there would have been nurse's notes in claimant's record if he had gone to the infirmary in 1988. Although hearsay can be admitted in administrative hearings and commonly is, the deputy determines the weight it is to be given. This witness' testimony is in almost every respect hearsay or hearsay upon hearsay. This witness' hearsay contacts in the first instance were one-half years or so from the time of the alleged injury. The undersigned finds that Sherri Wilson's testimony is of no real weight in helping the undersigned determine the issues in this case, and the undersigned sees no reason to further elaborate on the testimony or draw any further conclusions from her testimony because of the lack of weight, and in some instances lack of credibility given to it. The undersigned finds that the claimant is a credible witness and it can easily be inferred from the evidence and testimony that the attitude defendant has had toward this claimant may have been affected by the fact that he is unable to speak English and is an emigrant from Mexico. The undersigned finds that claimant did injure himself on or around November 16, 1988, while working for defendant employer, and that claimant's injury arose out of and in the course of his employment. The undersigned also finds that defendant did not offer medical help to this claimant and basically disregarded his desire and need for medical help. The parties set out the 85.27 benefits issue. The undersigned finds that because defendant denied liability, it has no right to choose claimant's medical care and, in fact, did not choose any medical care for this claimant and claimant needed medical care. Defendant is in no position to claim that claimant did not have authorization for his medical. The defendant insists that it still has the right to choose claimant's medical care even though it denied liability and refused to acknowledge an injury or send claimant to a doctor. The undersigned has a hard time comprehending defendant's position on this particular issue. The undersigned finds that claimant's medical condition resulting in a carpal tunnel syndrome surgery and the medical bills connected therewith is causally connected to claimant's injury of November 16, 1988. The parties set out an 85.23 notice requirement as an issue. The undersigned has found claimant to be credible and has given little weight, if any, to any oral testimony put on the record by defendant. The undersigned believes that claimant did, in fact, through the company's interpreter, give notice and whether that notice did, in fact, reach anyone else with defendant employer, or whether Page 5 it was placed on claimant's record, is immaterial. Claudio Meza is a company employee. If defendant had provided the medical care for claimant, it would have knowledge as to the medical and claimant's surgery and required medical care, all of which would have been within all time requirements. The undersigned finds that defendant employer did, in fact, have timely notice under the provisions of Iowa Code section 85.23. Defendant has set out an 85.33(3) issue. The undersigned does not understand where or why this is an issue in this case as there is no evidence or testimony that was supported or given rise to its consideration. Claimant quit work because he needed medical care and, in fact, did get medical care which resulted in surgery. The final issue is the extent of claimant's disability. We have a scheduled injury to claimant's upper extremity. There is no impairment rating by a doctor, but it is obvious as of February 7, 1989, claimant's last visit to the doctor, the doctor was unable to give an impairment rating. It is obvious from this record that there were functional limitations and restrictions and the doctor determined that it may take a year after the operation to determine what his final functional baseline will be. There is nothing in the record to indicate why claimant has not returned to the doctor, but it also can be inferred from the testimony that with claimant's present unemployment situation, language barrier, distance from Chicago to Iowa, being unemployed, the defendant denying liability, and obviously having no other insurance, the economic reality of the circumstances has affected claimant's desire in this area. Based on all the evidence, the undersigned can determine that claimant does have an impairment. The doctor indicated (Jt. Ex. A, p. 2) that he "anticipates that there will be some degree of motor deficit at maximum recovery." The medical report indicates that claimant had severe ulnar and near complete low median nerve palsy. In looking at the surgical scar, it went from the palm of the hand all the way up the arm to just a few inches below the elbow. The undersigned finds that claimant's impairment is to his upper extremity and is not limited to his hand. The undersigned finds that claimant has a 15 percent impairment to his left upper extremity. Claimant is entitled to 37.5 weeks at the weekly rate of $171.86. Claimant is further entitled to have defendant pay for the medical expenses reflected on Joint Exhibit J, in the total amount of $4,754.70. Claimant contends that his healing period began December 11, 1988 to and including February 7, 1989. Defendant contends it is not responsible or liable for anything, but does agree if, in fact, claimant would be covered and liability is found, that the healing period would be no greater than December 14 to and including February 7, 1989. The undersigned is not certain how the parties arrived at their dates other than the claimant is considering that the healing period began on December 11, 1988 because claimant's last day of work was December 10, 1988. Defendant apparently feels that December 11, 12 and Page 6 13 were days that claimant wasn't healing because he did not have his surgery until December 14, 1988. The undersigned finds that neither position of the attorneys is correct under the law. Just because defendant employer did not provide any medical attention to the claimant does not mean he wasn't injured or in a healing period. In fact, claimant testified that he was told he was preoccupied with what caused his injury and it would be over in a few days and to go back to work. It is obvious his injury wasn't over in a few days. Claimant was in a healing period beginning December 11, 1988, and this healing period existed at least to and including February 7, 1989, which is the the date of the last medical notes from any doctor. In reading those notes, the undersigned questions whether claimant was, in fact, fully healed by that time, but since there was no other further medical evidence and since both parties at least indicated it was no later than that date, the undersigned will accept the February 7, 1989 date. The undersigned finds that claimant incurred a healing period beginning December 11, 1988 through and including February 7, 1989, amounting to 8.429 weeks at the rate of $171.86. It appears claimant was paid his wages from November 16, 1988 through December 10, 1988. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on November 16, 1988, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of November 16, 1988 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 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). 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, 261 Iowa 352, 154 N.W.2d 128. Furthermore, if the available expert testimony is insufficient alone to support a finding of causal Page 7 connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. It is further concluded: That claimant incurred a work-related injury on November 16, 1988, which arose out of and in the course of his employment, and that claimant's medical condition resulting in a carpal tunnel and ulnar surgery was causally connected to claimant's November 16, 1988 injury. That claimant gave adequate and timely notice to defendant employer and, therefore, complied with Iowa Code section 85.23. That claimant did not refuse to work nor did claimant in any way violate section 85.33(3) of the Iowa Code. Claimant incurred a healing period beginning December 11, 1988 to and including February 7, 1989, amounting to 8.429 weeks. That claimant is entitled to have all of his medical paid per Joint Exhibit J which currently amounts to $4,754.70. These charges were reasonable and necessary and causally connected to claimant's November 16, 1988 injury. Since defendant denied liability and did not provide medical care to claimant, defendant is responsible for all of claimant's medical That claimant has a 15 percent impairment to his left upper extremity as a result of his work-related injury on November 16, 1988. Page 8 That claimant is entitled to five exemptions, including himself, his wife and three children. That claimant's benefits are to be paid at the weekly rate of $171.86. order THEREFORE, it is ordered: That defendant shall pay unto claimant healing period benefits at the rate of one hundred seventy-one and 86/100 dollars ($171.86) for the period beginning December 11, 1988 to and including February 7, 1989, which involves eight point four two nine (8.429) weeks. That defendant shall pay unto claimant thirty-seven point five (37.5) weeks of permanent partial disability benefits at the rate of one hundred seventy-one and 86/100 dollars ($171.86), beginning February 8, 1989. That defendant shall pay the accrued weekly benefits in a lump sum. Since defendant has paid no benefits, there is no credit due defendant. That defendant shall pay all of claimant's medical expenses, which currently amount to four thousand seven hundred fifty-four and 70/100 dollars ($4,754.70). 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 Division of Industrial Services Rule 343-4.33. That defendant shall file an activity report upon payment of this award as required by this agency, pursuant to Division of Industrial Services Rule 343-3.1 Signed and filed this _____ day of September, 1990. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr J W Conway Attorney at Law 210 Cedar St P O Box 237 Muscatine IA 52761 Mr Marlon D Mormann Attorney at Law P O Box 515 Dept #41 Page 9 Dakota City IA 68731 51100; 51108; 51803 52503 Filed September 19, 1990 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : GUSTAVO ARAUJO, : : Claimant, : : File No. 921097 vs. : : IBP, INC., : A R B I T R A T I O N : Employer, : D E C I S I O N Self-Insured, : Defendant. : ___________________________________________________________ 51100; 51108 Found claimant's injury arose out of and in the course of and found causal connection of claimant's condition to the injury. 51803 Claimant awarded healing period benefits and 37.5 weeks of permanent partial disability benefits for a 15 percent impairment to his left upper extremity. 52503 Claimant awarded medical benefits as defendant denied liability and did not provide claimant with medical care. Defendant insisted it still has right to choose medical care even if it denied liability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DENISE EARLY, : : Claimant, : File No. 921112 : vs. : A R B I T R A T I O N : IBP, INC., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ introduction This is a proceeding in arbitration filed by Denise Early, claimant, against IBP, Inc., employer and self-insured defendant, for benefits as a result of an injury which occurred on June 29, 1989. A hearing was held in Council Bluffs, Iowa, on May 14, 1992, and the case was fully submitted at the close of the hearing. Claimant appeared pro se, but consulted with Johnny Rodgers, who was also present in the courtroom. Defendant was represented by Marie L. Welsh. The record consists of the testimony of Denise Early, claimant; Cindy Pappas, defendant's workers' compensation coordinator; claimant's exhibit 6, pages 1 and 3 through 8; and, defendant's exhibits A through H. Claimant's exhibits 1 through 5, page 2 of exhibit 6, and exhibits 7 through 13 were excluded from evidence at the objection of defendant for the reason that they were not timely served prior to hearing pursuant to paragraph 6 of the hearing assignment order. Employer presented an excellent hearing brief at the time of hearing. issues The parties presented the following issues for determination at the time of hearing. Whether the injury was the cause of temporary disability. Whether claimant is entitled to temporary or permanent disability benefits, and, if so, the extent of benefits to which she is entitled. Whether claimant is entitled to medical benefits. Whether claimant is barred from receiving temporary disability benefits for refusing to accept suitable work as provided for in Iowa Code section 85.33(3) was asserted as Page 2 an affirmative defense by employer. findings of fact causal connection -- entitlement -- temporary disability It is determined that the injury was the cause of temporary disability, however, that claimant is not entitled to temporary disability benefits for the reason that defendant offered claimant suitable work as provided for in Iowa Code section 85.33(3) which claimant refused to accept. Claimant severed the distal phalanx of her right index finger in a machine at work. She was taken to Mercy Hospital in Council Bluffs where she was seen by Joel Bleicher, M.D., a plastic surgeon. Claimant complained that the portion of her finger that was traumatically severed was not returned to her. However, Dr. Bleicher, in his surgical report, stated: This patient is a 30 year old female who caught her right index finger in a chain sprocket. This occurred at IBP while at work. This was a traumatic crush type amputation of the index finger and the piece that was brought in was not usable being too badly damaged for use. (Claimant's exhibit 6, page 8) There is no evidence that the medical people asked claimant whether she wanted the badly damaged distal phalanx; nor is there any evidence that claimant requested that this portion of her finger be returned to her at any time while it was still possible to do so. Dr. Bleicher reported that the wound was debrided of nonviable tissue as well as some fatty tissue which appeared to be devitalized. Then a full thickness skin graft was obtained from the thenar eminence and the donor site was closed (claimant's exhibit 6, page 8). Dr. Bleicher reported on June 29, 1989, to employer on an Emergency Services form with a Mercy Hospital letterhead that the patient could return to work but for limited duty only (defendant's exhibit F). Claimant signed the release of information at the bottom of this form and acknowledged that she received a copy of the report (defendant's exhibit F). Cindy Pappas, workers' compensation coordinator for defendant, testified that she called claimant on the telephone the following day and notified claimant that she was expected to return to work at the normal time, 11:00 p.m., for the reason that Dr. Bleicher said that claimant could return to work for limited duty and employer had limited duty which she could perform. Pappas documented Page 3 this telephone conversation with a memorandum (defendant's exhibit G). Both in the memorandum and at the hearing, Pappas testified that claimant refused to return to work under any circumstances, irrespective of what the doctor said or what employer wanted (defendant's exhibit G). Claimant testified that she was unable to return to work because she was in shock from the traumatic loss of the distal portion of her index finger; she was groggy from taking Tylenol III; and, she had no transportation to work because her car was still at the plant and claimant was at home. Claimant stated that employer's expectation that she should return to work under the circumstances was insensitive and unreasonable. Pappas testified at hearing that she had discussed light duty with claimant's supervisor and that it was arranged that claimant would answer telephones. There may have been a breakdown in communications at this time because Pappas did not testify that she communicated to claimant that claimant would be answering telephones. At the same time, claimant did not inquire about the nature of the light duty that she would be expected to perform. Pappas maintained that claimant stated that she would get her own doctor and obtain evidence that she should be taken off work. Pappas contended that claimant was advised that, if she retained other physicians, she would have to pay the cost for them. There was no evidence that claimant obtained her own physician at her own expense who took her off work. Pappas testified that she wrote a letter to claimant on June 30, 1989, to clarify the rights and liabilities of the parties and to record what had been discussed. The first paragraph of that letter reads as follows: As you know, Dr. Bleicher informed you that you could return to work on June 30, 1989 to light duty work status. A light duty job is available for you that fits in accordance to your restrictions. IBP will work with you, including working on a different shift or starting you out a couple hours per day until you are able to tolerate a full shift. (Defendant's exhibit H) Pappas further informed claimant that, if she chose an unauthorized physician, it would be done at her own cost. The letter further explained to claimant that employer would pay reasonable mileage to and from authorized physician appointments; that claimant could charge prescriptions at Walgreens Pharmacy on the employer's account; and, that if claimant received any medical bills at home, to submit them to Pappas for payment (defendant's Page 4 exhibit H). Iowa Code section 85.33(3) provides that employer is entitled to furnish claimant suitable work consistent with the employee's disability and that the employee shall accept the suitable work and be compensated with temporary partial disability benefits. This section concludes by stating: "If the employee refuses to accept the suitable work the employee shall not be compensated with temporary partial, temporary total, or healing period benefits during the period of the refusal." Answering telephones would be work considered to be suitable work consistent with the employee's disability within the context of this Code section for this particular injury. Claimant's desire to remain off work due to the traumatic severance and amputation of the distal portion of her index finger is understandable. Her feeling, from her own personal point of view, that employer's request was insensitive is also understandable because this is a traumatic amputation of a very conspicuous and useful portion of claimant's body. It would appear that much of the misunderstanding might arise out of a lack of communication about the type of work that claimant would be performing, to wit, answering telephones. It must be stated also that the result of numerous industry studies urges employers to return employees to work under as favorable of circumstances as possible as soon as possible. Thus, employer was following the injunction of several studies related to workers' compensation benefits. In any event, defendant has been given the opportunity by statute to offer claimant suitable work consistent with the employee's disability, which employer did in this case. Along with that, the statute gives employer freedom from liability for any temporary disability benefits if the employee refuses to accept suitable work consistent with the employee's disability. Wherefore, it is determined that, even though the injury was the cause of temporary disability because claimant (1) was not able to return to her regular job, nor (2) was she able to perform substantially similar employment, nor (3) had she attained maximum medical improvement (Iowa Code section 85.33(1)), nevertheless, defendant has proven that it offered claimant suitable work consistent with claimant's disability due to her severed right index distal phalanx and that claimant refused to perform this work. Claimant admits that she refused to perform this work because she thought it was insensitive and unreasonable. It was, nevertheless, suitable work consistent with her disability and because of this the statute mandates that the employee cannot be compensated with temporary disability benefits of any kind. Iowa Code section 85.33(3). Therefore, it is determined that, even though claimant Page 5 was temporarily disabled, it is further determined that she is not entitled to temporary disability benefits because she refused to accept suitable work consistent with her disability. Claimant contends that, since B. V. Stromberg, M.D., an associate of Dr. Bleicher, released claimant to return to limited duty work on July 6, 1989, this indicates that she was not able to return to work on June 30, 1989. This argument is without merit because Dr. Bleicher clearly indicated that claimant could return to work on June 30, 1989, in writing on a form which claimant acknowledged with her own signature (defendant's exhibit F). Moreover, it is the position of the industrial commissioner that employees should return to work as soon as reasonably possible and that employers should make suitable work consistent with the disability of claimants available to them at the earliest possible time. Claimant was terminated for excessive absenteeism by employer for missing the seven days of work between June 30, 1989, and July 6, 1989. Claimant contends that this was a wrongful termination. The industrial commissioner has no jurisdiction over wrongful terminations. Therefore, this alleged wrongful termination cannot be the subject of the decision in this case. causal connection -- entitlement -- permanent disability The parties stipulated that the injury was the cause of permanent disability. Claimant requested and employer authorized an independent medical examination for claimant by Richard P. Murphy, M.D. Dr. Murphy determined on September 15, 1989, "Based on the level of amputation it is my impression that the patient has sustained 40% impairment to the right index finger." (Defendant's exhibit D). He did not anticipate that claimant would develop any increased pain or discomfort at the amputation site and claimant did not complain of any at the time of hearing. Likewise, no other evidence was introduced to establish that the amount of permanent disability exceeded the amount of permanent impairment. The original notice and petition asserts that claimant has sustained a psychological injury. There is further evidence that claimant treated with a psychiatrist, James Severa, M.D., on October 2, 1989, and October 23, 1989 (defendant's exhibit E). There is further evidence that defendant employer agreed to treatment by a psychiatrist. Dr. Stromberg's note of July 6, 1989, states that "Cindy of IBP . . . phoned today. She said that if Ms. Early would request a psychiatrist that that would be acceptable to IBP." (Claimant's exhibit 6, page 1). There was no evidence from Dr. Severa that claimant sustained a permanent Page 6 psychological injury, even though it is entirely understandable that claimant has sustained an extremely traumatic temporary psychological effect from her physical injury. Even if claimant had proven an independent psychological injury which was the sequelae of the amputation injury, claimant would not be entitled to recover industrial disability benefits for an injury to the body as a whole, because it has been determined by the industrial commissioner that psychological impairments caused by a scheduled member injury are contemplated in the schedule itself and do not constitute an extension of the injury to the body as a whole. Cannon v. Keokuk Steel Casting, File No. 795331 (App. Decn., January 27, 1988); Mortimer v. Fruehauf Corp., File No. 506116 (Arb. Decn., February 22, 1990)(aff'd by indus. comm'r, September 12, 1992, on appeal to dist. court). Cannon was a hearing loss case, but the commissioner cited a decision made by himself three months earlier where a claim was made for psychological injuries where he held that benefits for a scheduled member injury under Iowa Code section 85.34 contemplates compensation for any effect on claimant's earning capacity caused by psychological problems stemming from a scheduled member injury. Pilcher v. Penick & Ford, File No. 618597 (App. Decn., October 21, 1987). Mortimer was a psychological injury case. The commissioner's comments in Pilcher were dicta because claimant failed to prove a change of condition in order to be entitled to any benefits. Cannon and Mortimer did decide the issue, however, and they are res judicata. The commissioner's decision in Cannon and the deputy commissioner's decision in Mortimer follow an old and established line of precedent that the amount payable for specific injuries (scheduled member injuries) includes both payment for the impairment and payment for the reduced capacity to labor. Schell v. Central Eng'g Co., 232 Iowa 421, 424, 4 N.W.2d 399, 401 (1942); McBride v. Monfort, Inc., File No. 947544 (Arb. Decn., March 31, 1992). The Supreme Court of Iowa has recognized the unfairness in these situations; however, it has refused to judicially legislate but has recognized that any change should come from the legislature itself. Brugioni v. Saylor Coal Co., 198 Iowa 135, 138, 197 N.W. 470, 471 (1924); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Wherefore, it is determined that the injury was the cause of permanent disability to the right index finger and that claimant has sustained a 40 percent permanent impairment to that member which entitles claimant to 14 weeks of permanent partial disability benefits. Forty percent of the total allowance of 35 weeks for an index finger equals 14 weeks. Iowa Code section 85.34(2)(b). Page 7 rate Claimant contends that her rate of compensation should be $189.00 per week; however, she submitted no evidence to establish this rate. She acknowledged at the hearing that she was unable to prove it. Wherefore, it is determined that claimant has not established through her own evidence what the proper rate of compensation should be. credit It is determined that defendant has paid claimant 14 weeks of permanent partial disability benefits prior to hearing at the rate of $169.22 per week in the total amount of $2,369.08. The parties have stipulated to this fact in the prehearing report. Wherefore, it is determined that defendant is entitled to a credit for these payments, at this rate of compensation. Claimant did not establish a higher rate. In fact, claimant established no particular rate. Therefore, defendant's payment at the rate of $169.22 per week is the only and best evidence we have of the proper rate of compensation and defendant is entitled to a credit for the 14 weeks of benefits it paid claimant for permanent partial disability benefits at this rate. medical benefits No determination can be made concerning medical benefits because claimant introduced no medical bills into evidence. Defendant has introduced an itemized list of medical expenses in the amount of $4,062.88 which it paid prior to hearing (defendant's exhibit B). Claimant failed to prove that she is entitled to any other additional medical expenses, because no additional medical bills were introduced into evidence. conclusions of law Wherefore, based upon the foregoing and following principals of law, these conclusions of law are made. That the injury of June 29, 1989, was the cause of temporary disability, but that claimant is not entitled to temporary disability benefits for the reason that defendant sustained the burden of proof by a preponderance of the evidence that it provided suitable work to claimant consistent with her disability and that claimant refused to accept this work. Iowa Code section 85.33(3). That claimant is not entitled to temporary disability benefits. Iowa Code sections 85.33(3) and 85.34(1). Page 8 That claimant did not sustain the burden of proof by a preponderance of the evidence that she sustained a psychological injury and, if she would have done so, it would not have been compensable for the reason that an award for a scheduled member injury includes both impairment and any loss of earnings. That claimant did sustain the burden of proof by a preponderance of the evidence that the injury was the cause of permanent disability. 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). That claimant is entitled to 14 weeks of permanent partial disability benefits based upon a 40 percent permanent impairment of the right index finger. Iowa Code section 85.34(2)(b). That claimant did not submit any evidence in support of what the proper rate of compensation should be and, therefore, it cannot be determined from claimant's evidence what the proper rate of compensation should be. That defendant has paid claimant 14 weeks of permanent partial disability benefits at the rate of $169.22 per week in the total amount of $2,369.08 and that defendant is entitled to credit in this amount for the 14 weeks of permanent partial disability benefits to which claimant is entitled for this injury. That claimant has not sustained the burden of proof by a preponderance of the evidence that she is entitled to the payment of any additional medical benefits. Iowa Code section 85.27. order THEREFORE, IT IS ORDERED: That no further amounts are due to claimant from defendant for the reason that defendant is entitled to a credit for the fourteen (14) weeks of permanent partial disability benefits which have been awarded in this decision. That each party is to pay their own respective costs of this action, except that defendant is ordered to pay the cost of the attendance of the court reporter at hearing pursuant to Iowa Code section 86.40 and rule 343 IAC 4.33. That defendant submit any claim activity reports that might be requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1992. Page 9 ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Ms. Denise Early 1721 Lake Street Omaha, Nebraska 68110 CERTIFIED MAIL Ms. Marie L. Welsh Attorney at Law P.O. Box 515, Dept. #41 Dakota City, Nebraska 68731 Page 1 5-1703; 1801.1; 1802; 1803 5-1803; 5-2501; 5-2700 5-2906; 3001; 3002; 3003 Filed May 22, 1992 WALTER R. McMANUS, JR. before the iowa industrial commissioner ____________________________________________________________ : DENISE EARLY, : : Claimant, : File No. 921112 : vs. : A R B I T R A T I O N : IBP, INC., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 1801.1; 1802 Claimant severed the distal phalanx of her right index finger traumatically in a machine at work. It was determined that the injury was the cause of temporary disability because (1) claimant was not released to return to regular work, (2) she was not released to return to similar employment, and (3) she had not reached maximum medical improvement. Nevertheless, she was not entitled to temporary disability benefits for the reason that defendant offered claimant suitable work consistent with her disability the following day answering telephones and claimant refused to accept it. Iowa Code section 85.33(3). Defendant then terminated claimant for excessive absenteeism. The deputy had no authority to decide wrongful termination cases. 5-1803 Claimant awarded 14 weeks permanent partial disability benefits for a 40 percent loss of her right index finger pursuant to the only impairment rating. 3001; 3002; 3003 No specific monetary award could be made because pro se claimant offered no evidence of rate. 5-2906 Most of claimant's proposed 13 exhibits were excluded because they had never been timely served on defendant. Seven pages of exhibits that defendant acknowledged had been served prior to hearing before claimant discharged her attorney were admitted because there was no prejudice to Page 2 defendant. 5-1703 Defendant was allowed a credit for 14 weeks of permanent partial disability benefits paid to claimant prior to hearing. 5-2501; 5-2700 No medical expenses were allowed as claimant introduced no medical bills into evidence. 1803 No award could be made for psychological injury because the schedule contemplates both impairment and loss of earnings. Cites.