before the iowa industrial commissioner _________________________________________________________________ : REX RHOTEN, : : Claimant, : : vs. : : File No. 923968 PAXTON & VIERLING STEEL CO., : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed October 28, 1992 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of February, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Robert Laubenthal Attorney at Law P.O. Box 249 Council Bluffs, Iowa 51502 Mr. James E. Thorn Attorney at Law P.O. Box 398 Council Bluffs, Iowa 51502 1803 Filed February 22, 1993 Byron K. Orton WRM before the iowa industrial commissioner ____________________________________________________________ _____ : REX RHOTEN, : : Claimant, : : vs. : : File No. 923968 PAXTON & VIERLING STEEL CO., : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 1803 This is a non-precedential determination of the amount of industrial disability and permanent partial disability benefits. Claimant age 45, high school education, 27 year career employee of employer who performed heavy lifting most of that time, injured his back lifting, had a semihemilaminectomy performed on his lumbar spine, received a 10 percent permanent functional impairment rating, and restrictions of (a) no lifting over 25 pounds, (b) no repetitive bending or twisting and (c) standing and sitting limited to two hours at a time, and was foreclosed from all prior employments that he had performed, but had been accommodated by employer so that he was promoted to supervisor and had not sustained any actual loss of earnings was determined to be 20 percent industrially disabled and entitled to 100 weeks of permanent partial disability benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ REX RHOTEN, Claimant, vs. File No. 923968 PAXTON & VIERLING STEEL CO., A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration filed by Rex Rhoten, claimant, against Paxton & Vierling Steel Co., employer and Liberty Mutual Insurance Company, insurance carrier, defendants for benefits as a result of an injury that occurred on June 16, 1989. A hearing was held in Council Bluffs, Iowa on October 20, 1992, and the case was fully submitted at the close of the hearing. Claimant was represented by Robert Laubenthal. Defendants were represented by James E. Thorn. The record consists of testimony of Rex Rhoten, claimant, Lynn Farris, co-employee, and joint exhibits 1 through 18. ISSUES The sole issue submitted for determination is the amount of industrial disability which claimant has sustained, if any, and the amount of permanent partial disability benefits to which he is entitled, if any. FINDINGS OF FACT It is determined that claimant has sustained a 20 percent industrial disability to the body as a whole and that claimant is entitled to 100 weeks of permanent partial disability benefits. Claimant was 45-years-old at the time of this injury and 48-years-old at the time of the hearing. Thus, this injury occurred when claimant was approaching his peak earnings in his employment lifetime. Therefore claimant's industrial disability is significantly increased on account of his age. Moreover, at the time of this injury claimant was able to work a great deal of overtime and claimant took advantage of every single opportunity to perform overtime and receive overtime pay. Becke v. Turner-Busch, Inc., Page 2 Thirty-fourth Biennial Report of the Industrial Commissioner 34 (1979). Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981). McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (App. Dec. April 28, 1989). Claimant has a high school education. This is the bare minimum for finding employment in the competitive labor market and also places claimant at a disadvantage with other job applicants who either have college degrees, community college degrees, one or more years of college training or certificates in various employment skills. Claimant is a hard-working and intelligent individual (Transcript, pp. 16, 17 & 19). He has demonstrated his adaptability to learn several skills for employer. He started as a general laborer, became a machine operator and learned how to shear, break and roll metal, learned the duties of quality control, functioned as a side loader operator for 17 years, and at the time of the hearing had been promoted to a warehouse supervisor (Tran., pp. 30-35). Thus, claimant has demonstrated that he would be an excellent candidate for retraining. Claimant testified that employer has three major lines of work endeavor (1) the warehouse, (2) the machine shop and (3) the fabrication department. Claimant testified that he has worked in all three major endeavors of work provided by employer. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Claimant testified that he was in excellent physical health at the time of this injury. He denied and there was no medical evidence of any prior serious injuries of any kind. All of his jobs for employer were physically demanding and required him to either lift, push, pull, shove, or roll pieces of steel weighing anywhere between 10 pounds and 100 pounds. These pieces of steel ranged in length from 12 feet to 24 feet but most of them were approximately 20 feet long. They ranged in thickness from 1/8 of an inch to 8 inches. Claimant admitted to occasional back strain prior to this injury which normally did not require medical treatment or any loss of time from work (Tran., p. 73). After graduation from high school claimant served in the United States Navy for approximately four years. Claimant then started to work for employer at age 21 in 1965. Claimant is a career employee of employer with an excellent employment record (Tran., p. 93). This employment has been his only employment during his entire adult working lifetime. Claimant injured his low back while bending over reaching for bars out of stock pans. He testified that he knew he pulled something in his back at that time (Tran., pp. 39 & 40). The injury was reported about two weeks later when claimant was no longer able to work due to pain in his back and in his legs. James Faylor, M.D. diagnosed lumbar strain and possible disc rupture on July 5, 1989, and Page 3 claimant was taken off work at that time (Exhibit 2). Dr. Faylor referred claimant to Charles Taylon, M.D., an orthopedic surgeon, who first saw claimant on July 6, 1989. Dr. Taylon found the straight leg raising test was positive at 30 degrees bilaterally and was limited by back pain. He ordered a lumbar myelogram and a post myelogram CAT scan (Ex. 3). Claimant was also examined by Frank P. LaMarte, M.D., on July 19, 1989, who diagnosed lumbar disc syndrome and stated that claimant was a surgical candidate in his opinion (Ex. 5, pp. 1 & 2). On July 26, 1989, Dr. Taylon diagnosed a herniated disc at L4-L5 on the right side and performed a right L4-5 semihemilaminectomy and discectomy (Ex. 6, pp. 1-4). Dr. Taylon found and removed a free fragment of disc laying over the L4 vertebral body (Ex. 6, p. 4; Ex. 7). In October and November of 1989 claimant still complained of increasing back and bilateral lower extremity pain (Ex. 10 & 11). Claimant was off work completely from July 5, 1989 through November 19, 1989 at which time he started back to work four hours a day and three days a week (Ex. 11 & 12). This was increased to nine hours a day three days a week on March 5, 1990 (Ex. 13). On March 20, 1990, Dr. Tylon reported that an MRI confirmed only post operative changes and that no new nerve compression was visualized that could be causing claimant's continuing low back and bilateral leg pain (Ex. 14). Claimant returned to work full time on May 20, 1990. On July 3, 1990, Dr. Taylon reported that claimant had sustained a 10 percent permanent impairment to the body as a whole. He was permanently restricted from lifting 25 pounds and from repetitive bending or twisting on a permanent basis. He added that standing should be limited to two hours at a time with a short rest period (Ex. 17). Dr. Taylon was the primary treating and operating physician and his impairment rating and restrictions are not controverted by any other medical evidence. On September 15, 1992, James T. Rogers, a certified professional counselor, reported that he evaluated claimant on August 5, 1992. After examining the medical evidence and interviewing claimant Rogers determined that claimant had lost access to approximately 35 percent to all jobs to which he had access prior to the injury (Ex. 18). Rogers further estimated that if claimant would lose his present job with employer that he would probably most likely be able to earn $4.25 per hour to $8 per hour in the competitive employment market (Ex. 18, p. 6). However, claimant did return to work for employer in the quality control department and another individual was assigned to perform any lifting or repetitive work that violated Dr. Taylon's restrictions. Claimant testified that nevertheless he still occasionally violated the lifting restriction in some degree in order to perform his job and when he did so he suffered a recurrence of pain, numbness and tingling in his legs as a result of it (Tran., p. 47). Page 4 Employer commendably asked claimant what job he could perform, in his opinion. Claimant thought he could perform the job of warehouse supervisor and employer promoted him from an hourly rate employee to a salaried employee in a supervisory capacity where he could work within the restrictions placed by Dr. Taylon. Claimant earns $30,000 as the warehouse supervisor. Claimant testified that also earned $30,000 as an hourly employee because he never missed a single opportunity to work overtime on a daily basis and also on Saturdays and Sundays when it was available. Claimant contended that he would be earning more money if he had the opportunity to work overtime. This contention, however, was not documented nor otherwise proved by a preponderance of the evidence. Claimant testified that all employees get a bonus and as far as he could determine his bonus remained the same. Claimant and his co-employee Farris both testified that after the injury employer instituted split shifts with the intention of reducing the amount of overtime which the employees were receiving. This program of split shifts was partially effective but Farris testified that he still works one hour of overtime every day and that it is sometimes available on Saturday and Sunday (Tran., p. 26-28). Claimant testified that many employees still are able to work and receive a large amount of overtime pay. Farris testified that he has had two raises and claimant testified that he had only received one raise (Tran., p. 28). Claimant related that some supervisors received raises and some were passed over. When claimant was told that he was passed over the owner also asked him about his injury and claimant formed the conclusion that he was passed over because of the injury (Tran., pp. 87 & 88). There is no evidence to support the proposition that claimant was passed over for a raise because of this injury other than claimant's testimony. Claimant testified that his job requires a lot of walking. The plant was 70 feet by 1,000 feet and a 65 foot by 400 foot addition has been added to it (Tran., p. 48). Claimant related that when he walks the length of the plant extensively it feels like his legs are going to fall off and it causes pain all the way home in the car (Tran., p. 49). Claimant commutes to and from work a distance of approximately 43 miles. Claimant further testified that it is difficult for him to sit for any extended period of time. Claimant further testified that he had a flare-up of his back pain in the spring of 1992. When he woke up he felt like he could not get out of bed (Tran., p. 86). Eventually he went to the doctor that day. Claimant fears that his back will flare-up again to the extent that he might not be able to perform his job as warehouse supervisor. At the time of the follow-up MRI in March of 1990, Dr. Taylon said that surgical intervention could not be ruled out, however it was not a major consideration at that time (Ex. 14). Page 5 Claimant expressed a fear that his job is in jeopardy with employer because he knew of other employees who were terminated after they became injured. Farris also knew of employees that had been terminated after they were injured (Tran., pp. 21-23). Both men also knew of employees who had been injured and were accommodated by employer and were able to continue their employment with employer. Claimant testified that he very much appreciated the accommodation that employer had made for him and that he was grateful for the opportunity to be able to continue to work. It is obvious from Dr. Taylon's restrictions of (1) no lifting over 25 pounds and (2) no repetitive bending or twisting and (3) that standing and sitting should be limited to two hours at a time with a short period of rest, that claimant is foreclosed from his prior jobs as a general laborer, a machine operator, a quality control tester and a side loader operator because all of these jobs required heavy physical labor and lifting more than 25 pounds. Even though claimant has not demonstrated an actual loss of earnings and employer contends that claimant's job is secure, never-the-less, a whole range of jobs in the open employment market have been foreclosed to claimant due to this injury (Tran., p. 18,20). Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (App. Dec. January 30, 1979). Rohrberg v. Griffen Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1984). Prior to this injury claimant had no physical limitations whatsoever. He was capable of heavy labor which is defined as lifting more than 100 pounds occasionally and as much as 50 pounds repetitively. Claimant lived a vigorous work life picking up the end of parcels of iron or steel that weighed as much as 500 pounds. He routinely lifted 50 to 100 pounds (Tran., p. 17). Claimant worked 12 and 14 hours a day on many occasions. Claimant normally worked one hour overtime every day and all the Saturday and Sunday overtime which was available. Claimant is now limited to light or medium work physically. His only transferable skill would be some management skills. Rogers testified that claimant could only earn between $4 and $8 per hour in the competitive employment market. If he lost his employment with this employer with an annual salary of $30,000 this computes out to approximately $15 per hour working eight hours a day and 40 hours a week (Tran., PP. 53 & 54). However claimant works more than that. Claimant testified that he works approximately 54 hours per week. Using $15 per hour as a base (Tran., p. 15), if claimant's hourly rate were reduced to $8 per hour this would constitute a $7 per hour loss which calculates out to a 46 percent loss of earnings. Again using $15 per hour as a base, if claimant were reemployed at $4 per hour, this constitutes an $11 per hour loss and calculates out to a 73 percent loss of earnings. Thus, the opportunity that employer has afforded the employee to continue to work at $30,000 a year materially and substantially reduces Page 6 claimant's potential loss of earning capacity. If claimant should lose his employment then employer's liability for loss of earning capacity would be substantially increased. If claimant should lose his employment with employer he would not be afforded the same accommodation and job modification privileges that this employer has extended to him. This employer's job accommodation would not transfer the competitive labor market as a whole. Hartwig v. Bishop Implement Company, IV Iowa Industrial Commissioner Report, 218, 220 (App. Dec. June 28, 1984). Claimant would not find new or different employers as accommodating. Todd v. Department of General Services, Buildings and Grounds, IV Industrial Commissioner Report 373 (1983). Wherefore, based upon (1) all of the evidence introduced in this case, (2) in particular the foregoing evidence, (3) considering all the factors used to determine industrial disability, Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (App. Dec. February 28, 1985), Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (App. Dec. March 26, 1985); and (4) applying agency expertise [Iowa Administrative Procedure Act 17A.14(5)]. It is determined that claimant has sustained a 20 percent industrial disability to the body as a whole and is entitled to 100 weeks of permanent partial disability benefits. CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following principles of law these conclusions of law are made. That claimant has sustained the burden of proof by a preponderance of the evidence that the injury of June 16, 1989, was the cause of the disability on which he now bases claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant has sustained a 20 percent industrial disability to the body as a whole and is entitled to 100 weeks of permanent disability benefits. Iowa Code section 85.34(2)(u). ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant one hundred (100) weeks of permanent partial disability benefits at the stipulated rate of three hundred thirty-five and 76/100 dollars ($335.76) per week in the total amount of thirty-three thousand five hundred seventy-six dollars ($33,576) commencing on May 21, 1990, as stipulated to by the parties. That defendants are entitled to a credit for fifty-two (52) weeks of permanent partial disability benefits paid to claimant at the rate of three hundred thirty-five and 76/100 Page 7 dollars ($335.76) per week in the total amount of seventeen thousand four hundred fifty-nine and 52/100 dollars ($17,459.52) which benefits were paid to claimant prior to hearing. That all of these benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That the costs of this action including the cost of the attendance of the court reporter at hearing and the transcript of hearing are charged to defendants pursuant to rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40. Further, that defendants pay to claimant costs in the total amount of two hundred sixty-five dollars ($265), which were incurred as follows (1) filing fee paid to the industrial commissioner sixty-five dollars ($65), (2) fee paid to Dr. Taylon's office for medical reports fifty dollars ($50), and (3) expert witness fee of James T. Rogers in the amount of one hundred fifty dollars ($150) of his total charges in the amount of three hundred eighty-five dollars ($385). That defendants file claim activity reports as requested by this agency. Signed and filed this ____ day of October, 1992. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert Laubenthal Attorney at Law 35 Main Place P.o. Box 249 Council Bluffs, Ia 51502 Mr. James E. Thorn Attorney at Law 310 Kanesville Blvd. P.O. Box 398 Council Bluffs, IA 51502 1803 Filed October 28, 1992 Walter M. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ REX RHOTEN, Claimant, vs. File No. 923968 PAXTON & VIERLING STEEL CO., A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 1803 This is a non-precedential determination of the amount of industrial disability and permanent partial disability benefits. Claimant age 45, high school education, 27 year career employee of employer who performed heavy lifting most of that time, injured his back lifting, had a semihemilaminectomy performed on his lumbar spine, received a 10 percent permanent functional impairment rating, and restrictions of (a) no lifting over 25 pounds, (b) no repetitive bending or twisting and (c) standing and sitting limited to two hours at a time, and was foreclosed from all prior employments that he had performed, but had been accommodated by employer so that he was promoted to supervisor and had not sustained any actual loss of earnings was determined to be 20 percent industrially disabled and entitled to 100 weeks of permanent partial disability benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ NANCY LAING, Claimant, vs. File Nos. 924438/1002210 STAFF-TEMPS, A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed October 28, 1994 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of February, 1995. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Steven C. Jayne Attorney At Law 5835 Grand Ave., Ste 201 Des Moines, Iowa 50312 Mr. Joseph S. Cortese II Attorney at Law 500 Liberty Bldg. Des Moines, Iowa 50309 1801; 1802; 1803; 1803.1; 2500 Filed February 28, 1995 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ NANCY LAING, Claimant, vs. File Nos. 924438 1002210 STAFF-TEMPS, A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 1801; 1802; 1803; 1803.1; 2500 Claimant sustained a bilateral carpal tunnel work injury. Subsequent to the work injury, claimant became depressed. She was treated with anti-depressants. Two psychiatrists opined there was a nexus between her carpal tunnel injury and her depression. The psychiatrists for both claimant and defendants opined that prescription medication was not adequate treatment for claimant. They opined that the medications should be coupled with psychotherapy in order to see a vast improvement in claimant's condition. Defendants, as of the date of the hearing, had not provided the psychotherapy, despite the opinion of their physician. HELD: The deputy industrial commissioner bifurcated the issue of permanency since claimant had not reached maximum medical improvement. Claimant was entitled to a running award with respect to her award for weekly benefits. Benefits were awarded from the date of the hearing and for the duration of her disability or until such time as it has been determined that claimant has reached maximum medical improvement. The issue of permanency benefits is bifurcated until a later point in time. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : NANCY LAING, : : Claimant, : : vs. : File Nos. 924438 : 1002210 STAFF-TEMPS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE These are proceedings in arbitration upon the petition of claimant, Nancy Laing, against her former employer, Staff Temps, and its insurance carrier, Liberty Mutual Insurance Company, defendants. The cases were consolidated and they were heard on March 10, 1994. The record consists of the testimony of claimant. The record is also comprised of the testimony of Roger Marquardt, vocational rehabilitation expert witness who was retained by claimant, and the testimony of Barbara Chaldy, vocational rehabilitation expert witness who was retained by defendants. Finally, the record consists of joint exhibits 1-10, claimant's exhibits 12-25, and defendants' exhibits A-D. ISSUES The issues to be determined are: 1) whether claimant sustained a work-related injury on July 7, 1989 or July 29, 1989; 2) whether the alleged injury is a cause of permanent disability; 3) whether claimant is entitled to any healing period benefits as a result of her work injury; and 4) whether claimant is entitled to any permanent partial disability benefits, and if so, the nature and extent of those permanent partial disability benefits. Page 2 FINDINGS OF FACT The deputy, having heard the testimony and considered all of the evidence, finds: Claimant is 48 years old. She is the divorced mother of one adult child. Claimant has had a sporadic work history. During the duration of her marriage claimant was employed outside of the home on an intermittent basis. Most of her jobs were unskilled positions. In 1984 claimant dissolved her marriage and, for financial reasons, she again found herself in the work force. She commenced her employment with CDS where she was hired to sort mail. Claimant left the employ of CDS because she determined she was in "a dead-end job." Next, claimant entered a three month training program. The program was sponsored by the Job Training Partnership Act. She successfully completed a course in operating office machines. Following her training claimant worked for Ready Temp. She was hired as a temporary office worker for businesses in Des Moines. In February of 1988, claimant commenced employment with the current defendant-employer. She performed basic clerical duties. She worked as a receptionist and performed telephone work. She typed and she operated computers. She also copied documents using office copy machines. In February of 1989, claimant was assigned to perform duties at Teleconnect. She was required to process order forms. The processing necessitated continual use of the copier. In order to operate the copier, claimant lifted the lid of the machine with her left hand, and she placed the order form on the machine with her right hand. Then claimant copied the document by pressing a button with her right hand. Claimant next lifted the lid of the machine with her left hand, and she removed the document with her right hand. Claimant testified, the job required "lots of pulling." Claimant testified that whenever she operated the copier, she began to experience difficulties in both hands, arms, and shoulders. She indicated the symptoms worsened over time. The last day she worked was July 29, 1989. Claimant commenced medical treatment with Scott Neff, D.O. The medical treatment began in August of 1989. Dr. Neff originally diagnosed claimant as having bilateral medial epicondylitis (Joint Exhibit 1, p. 1). He modified his diagnosis to include possible thoracic outlet syndrome (Jt. Ex. 1, p. 3). In October of 1989, claimant saw Martin S. Rosenfeld, D.O. He diagnosed claimant as having probable bilateral carpal tunnel syndrome and probable thoracic outlet syndrome (Claimant's Ex. 24). Page 3 Dr. Neff then performed two carpal tunnel releases on the right wrist and one carpal tunnel release on the left wrist. Several months later, Dr. Neff again modified his diagnosis. He opined in his report of January 3, 1990: DIAGNOSIS: 1. Possible thoracic outlet syndrome 2. First metacarpal CMC joint degenerative disease. 3. Post traumatic sternoclavicular degenerative disease with abnormal bone scan. 4. Acromioclavicular degenerative joint disease, right shoulder. 5. Residual right and left carpal tunnel syndromes. (Jt. Ex. 1, p. 8) Dr. Neff also diagnosed claimant as having myofascial soreness around the upper back area (Jt. Ex. 1, p. 8). Dr. Neff opined the following relative to the causes of claimant's physical condition: I believe that her carpal tunnel syndromes are related to repetitive hand and wrist activity, and some of this activity is in the workplace, and some of it is at home. I do not believe that degenerative changes in her sternoclavicular joint, shoulders, or anywhere else where it might exist is related to secretarial type work. Thoracic outlet syndrome typically occurs in people who do repetitive shoulder and upper arm activity at and above shoulder height, and I do not believe that that has been her work activity, from what I know about her previous job. (Jt. Ex. 1, p. 10) In February of 1990, Dr. Neff issued permanent restrictions with respect to claimant's work activities. The orthopedic surgeon then restricted claimant as follows: She was having myofascial soreness in her upper back, which is a chronic and ongoing and non-work related problem, and I recommended that she be seen by Dr. Rooney, a rheumatologist. I told her that I did not believe that she needed any further orthopaedic surgery, and I would estimate that the healing period following carpal tunnel release is a period of 8-12 weeks. Page 4 I have recommended that she return to sedentary type office work, which did not involve lifting repetitively of over 15 pounds, and a rating examination could be performed of her carpal tunnel to properly document the median nerve function. In my opinion, she has no impairment with reference to myofascial soreness in her upper back. Dr. Alex Matthews felt that this patient did not have thoracic outlet syndrome, and consequently, she should not have any impairment attributable to thoracic outlet. (Jt. Ex. 1, p. 13) In May of 1990, Dr. Neff opined that an evaluation in Iowa City would be advantageous for claimant. Dr. Neff also opined the following relative to claimant's return to work: I would like to make arrangements for her to be seen in Iowa City, and I do not believe that she is going to be capable of returning to repetitive hand and wrist activity, using a keyboard, 10-key, adding machine, and so forth. Alternative employment would be recommended. Healing period following a revision carpal tunnel with neurolysis is a minimum of 12 weeks, and more typically, 4-5 months. (Jt. Ex. 1, p. 16) In July of 1990, Dr. Neff indicated: Her symptoms have continued, and there is no likelihood that they will quickly resolve. I do not believe that she is capable of repetitive hand and wrist activity, repetitive office work, nor is she capable of any type of heavy activity. She remains under my care, and the duration of her symptoms is uncertain. (Cl. Ex. 18) Claimant was also examined at the Mercy Hospital Arthritis Center. Lawrence J. Rettemaier, M.D., indicated the following after he conducted an examination of claimant: IMPRESSION: 1) Probable myofascial pain of the upper extremities. The patient has no evidence of systemic inflammatory arthritis or other connective tissue disease. She does have some historical features and physical findings which may suggest thoracic outlet syndrome Page 5 although this certainly also would not represent a classic case. Reflex sympathetic dystrophy certainly would be in the differential; however, she lacks the cardinal features of diffuse pain to palpation. (Cl. Ex. 22, p. 3) Pursuant to Dr. Neff's request, Thomas W. Bower evaluated claimant for purposes of making an impairment rating. Mr. Bower opined there was no permanent impairment (Jt. Ex. 2, p. 1). Alexander Matthews, M.D., examined claimant for purposes of determining whether claimant had thoracic outlet syndrome. Dr. Matthews opined that claimant did not have the syndrome (Jt. Ex. 3). Claimant also saw Donna J. Bahls, M.D., a specialist in rehabilitation and physical medicine. Dr. Bahls opined: Assessment #1 - Bilateral arm pain. Assessment #2 - Status post right carpal tunnel surgery times 2 and left carpal tunnel surgery times 1. The patient still has some dysesthesia type pain in her hands, right greater than left. The patient is willing to try one of the anti-depressants to see if it will decrease some of this dysesthesia. She was given a prescription for Doxepin 25 mg tablets to increase over 1 week time to 100 mg at HS. If she does not tolerate this medication, she will call.... (Jt. Ex. 4, p. 2) Claimant also sought an evaluation from Dr. Albright at University of Iowa Hospitals and Clinics. Dr. Albright noted in his clinical report of July 9, 1990: X-rays done today including flexion extension lateral of the cerival [sic] spine and also oblique show no significant pathology. X-rays of her shoulders done previously likewise reveal no pathology of significance. Impression: Bilateral upper extremity pain of unclear etiology. It is unlikely that the disabling pain which the patient experiences in her hands is coming from either shoulder. She does have evidence of some biceps tendonitis on the right and also some flexor tendonitis at the insertion of the flexor mass into the medial epicondyle. Of interest, sustained flexion of her neck seems to corralate [sic] with the discomfort that she has in her hands. There is, however, no evidence of instability or significant osteophyte formation on x-ray. Page 6 (Jt. Ex. 5) Dr. Albright again examined claimant in a follow up appointment. The physician assessed claimant's condition as follows: Assessment: Ill-defined bilateral upper extremity pain with some suggestive symptoms of pain secondary to brachial plexus traction or mild thoracic outlet syndrome. Plan: At this time, patient will [sic] instructed in shoulder shrug and rotator cuff strengthening exercises. We would recommend no further diagnostic work-up or surgical intervention at this time or in the future. (Jt. Ex. 5, p. 3) In March of 1991 claimant entered the Mercy Pain Clinic for chronic pain in the upper extremities. She was admitted per the Page 7 recommendation of James Blessman, M.D. Claimant participated in the program for a period of time. However, she voluntarily discontinued her participation in the program prior to its completion (Jt. Ex. 7, p. 9). The basis for claimant's termination is that she could not arrive at the program by seven o'clock a.m. In June of 1991, claimant sought a medical consultation from Cynthia Barry, D.O., a family practice physician. Dr. Barry emphasized: Because of the chonicity [sic] of her pain, I have elected to refrain from the use of narcative [sic] analgesics, and employed numerous NSAIDS in attempts to provide her with some relief. I'm sorry to report that these attempts have been unsuccessful. As you know, there is a well documented organic basis for Nancy's symptomatology. The diagnostic testing which includes an MRI of her spine demonstrated degeneration and disease at multiple levels. (Jt. Ex. 8) Claimant returned to the University of Iowa at a later point in time. John C. VanGilder, M.D., a professor of neurology, opined in his report of May 3, 1993: In summary, I think Ms. Laing has carpopedal spasm, of which the etiology is unclear. I do not think she has a muscle degenerative disease as she has had multiple EMGs in the past and there is no evidence of abnormal function at the neuro-muscular junction or in recruitment of muscle fibers. Other etiologies that may be responsible for same include hypercalcemia, but these have been normal in the past and there is no evidence to suggest spinal cord tumor. (Jt. Ex. 5, p. 7) Claimant desired another opinion. She was referred to Bruce R. Kruger, M.D., of the Mayo Clinic. Dr. Kruger examined claimant for purposes of a neurologic consultation. He opined that: The neurological examination was normal. I thought that what component of her discomfort was organic was periarthritic in nature, probably a tendinitis or bursitis. There may be some residual of a mild carpal tunnel syndrome on the right, but it certainly would not be severe enough to create any significant impairment and I did not think that it should be treated unless the EMG showed definite abnormalities. An EMG was normal. A rheumatoid factor and Page 8 sedimentation rate determinations were normal. X-rays of the right hand and wrist, right shoulder, and right elbow were all unremarkable. We reviewed the MRI of the cervical and thoracic spine dated 3-13-91 and felt that they showed minimal changes of cervical spondylosis with a small bony ridge along the dorsal aspect of the C5 interspace. There was no good evidence for disc herniation. This of course is perfectly compatible with her age and is not necessarily an indication of anything symptomatic and certainly could not be related to her present complaints. There does appear to be a tiny midline disc protrusion at what appears to be the T7 level of questionable significance. In summary, I have no neurological basis for her problems. This should be reassuring in that we certainly find nothing that can't improve with time. (Jt. Ex. 9) Claimant was next examined by William Koenig, Jr., M.D., a psychiatrist. He opined that claimant suffered from chronic pain (Cl. Ex. 12, p. 28). He also indicated that the chronic pain was the result of fibrositis and that the fibrositis was accelerated by claimant's duties in the workplace (Cl. Ex. 12, p. 16). Dr. Koenig also opined that her sleep disturbance was the result of the fibrositis (Cl. Ex. 12, p. 19). In his deposition, Dr. Koenig also opined: A. Well, I tell all people that it should eventually burn out. In her situation, this has been going on long enough that that makes it very difficult to say how long she will be troubled and what she will and will not be able to do. Q. So, really, you can't predict if and when the disorder will resolve? A. That is correct. (Cl. Ex. 12, p. 25) Dr. Koenig recommended claimant for a comprehensive pain management program. Claimant then sought a psychiatric examination from Hector Cavallin, M.D., a board certified psychiatrist. The evaluation occurred on May 14, 1993 and claimant sought a medical consultation for her chronic pain. Dr. Cavallin opined the following in his report: Her affect was depressed. The depression is severe manifested by chronic fatigue, low self esteem, feelings of hopelessness, dysphoria and suicidal ideation. The depression is chronic and has responded Page 9 only in a limited way to treatment with medication. In addition to the depression she appears to be quite anxious. She also suffers from a sleep disorder. The patient did suffer from a carpal tunnel syndrome in both hands as medically documented. In spite of having surgery three times, the carpal tunnel syndrome deteriorated into a chronic pain of her upper extremities. The pain is severe and not responding to the usual forms of treatment and eventually led her to a major depressive disorder. The depression was sever [sic] to the extent that it restricted her activities of daily living and she spends most of the time in bed. The depression responded partially to treatment with Prozac. Even though Prozac alleviated her depression some, it had no effect on the pain. She believes that the pain is increasing as time goes by. The prognosis is poor and I consider her totally and permanently disabled. In terms of the severity of the impairment, she shows a marked restriction of activities of daily living, an extreme difficulty in maintaining social functioning and any attempt to engage in work like activities would result in further deterioration of her mental functioning. (Cl. Ex. 14, p. 2) In response to the opinion of Dr. Cavallin, defendants sent claimant to a psychiatrist of their choice. Defendants then referred claimant to James L. Gallagher, M.D., another board certified psychiatrist. Dr. Gallagher examined and evaluated claimant on November 6, 1993. The psychiatric expert opined the following in his report of November 9, 1993: MMPI-II Findings It was thought that Ms. Laing approached this test in a frank and open manner and a valid clinical profile of personality functioning was obtained. Very clearly, physical concerns and a depressed mood appeared to be the primary problems that emerged. Her depressed mood is accompanied by physical complaints and fatigue. She is clearly concerned about failing physical health and has difficulty envisioning a positive future. It was also suggested that Ms. Laing is somewhat introverted and tends toward interpersonal avoidance. Her shyness may lead to problematic social relationships. She may feel as if her problems are not amenable to psychotherapeutic intervention, which may explain her reluctance thus far to engage in such a process. In any event, a depressive picture is evident and a diagnosis of dysthymic disorder rather than major depressive disorder is suggested currently. Impression Page 10 Ms. Laing does appear to have suffered a depressive disorder in conjunction with the physical difficulties that presented themselves on or after July, 1989. Her symptoms of depression seemed to have worsened as she found the corrective surgeries for the carpal tunnel difficulties to be apparently ineffective. Furthermore, it is not clear that any other intervention will be useful and there seems to be no clear pathway for "career rehabilitation". She is obviously very concerned about her financial situation and seems perplexed about her dependence upon her father who has limited resources per her report. ... I also discussed the psychotherapeutic issues with Ms. Laing, much as Dianne Alber did sometime ago, and hopefully have encouraged her to seek help to deal with the number of stressful issues that persist, both currently and historically. She intends to do this of her own accord rather than through the assistance of an insurance carrier. This might help to expedite improvement in her emotional well-being as she is seemingly embittered about a number of issues including this worker's compensation process. Although Ms. Laing was hesitant to discuss past emotional events in the context of this worker's compensation process, I did not think her to be demonstrating any signs of overt malingering during this examination. I do not think that a pharmacologic treatment for her depressed mood in and of itself is sufficient, however. (Defendants' Ex. C, Deposition Ex. 2) In his deposition, Dr. Gallagher testified that: She did not overtly have any depressive symptoms, as best I could determine, until whatever physically occurred to her on the job or during the course of her employment; so it was after that, this period of employment at Staff-Temps, that the depressive disorder became evident. (Def. Ex. C, p. 14) Under cross-examination, Dr. Gallagher elaborated: Q. If I follow Joe's question to you about the relationship between the depression and her claimed occupational duties, if I follow what you are saying, to the extent that, for instance, her chronic pain is associated with the carpal tunnel syndrome, then so too is her dysthymic disorder? A. Yes, I would think so. Q. I take it that it would--the same would be true Page 11 with respect to her fibrositis syndrome. To the extent that that is related to her occupation with Staff-Temps, so too would be the dysthymic disorder? A. Well, with the fibrositis and fibromyalgia, I think probably nobody really knows what the etiology is of that. It seems to have arisen during this time period but that's not my area of expertise, fibromyalgia. Q. Is there any indication in your history or your review of the records that the--that she was manifesting any depressive manifestation associated with depression or dysthymia prior to the onset of symptoms involving her arms? A. No, there was nothing I was able to obtain a history to that effect. (Def. Ex. C, p. 20, l. 16-p. 21, l. 13) Finally, pursuant to defendants' request, claimant was examined and evaluated by Jill R. Meilahn, D.O., a specialist in physical medicine rehabilitation. Dr. Meilahn examined claimant on one occasion. The physician testified by deposition. In her deposition, she opined that claimant suffered from primary fibromyalgia syndrome with an unknown etiology (Def. Ex. B, p. 8). As of the date of the hearing, claimant had been unemployed. She had not secured employment in any capacity. Page 12 CONCLUSIONS OF LAW The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). A personal injury contemplated by the workers' compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something which acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934). An occupational disease covered by chapter 85A is specifically excluded from the definition of personal injury. Iowa Code 85.61(5); Iowa Code 85A.8. For purposes of this action, it is determined that claimant sustained a work injury on July 29, 1989. This was the last date when claimant was able to work in her capacity as an employee of defendant-employer. Defendants had stipulated that claimant sustained a work injury on either July 7, 1989 or else on July 29, 1989. In file number 924438, claimant alleged she sustained a work-related injury on July 7, 1989. However, this is really the same set of circumstances which occurred on the 29th of July. Claimant's injury for purposes of compensability is July 29, 1989. It is the determination of the undersigned that claimant takes nothing further from file number 924438. The parties have stipulated that claimant's condition is a cause of temporary disability. The period involved is in dispute. Claimant alleges she is entitled to a running award from the July 29th date. Defendants deny claimant is entitled to a running award or to any permanency benefits. The issue of permanency need not be addressed at this juncture since claimant has not reached maximum medical Page 13 improvement. It is quite evident to this deputy industrial commissioner that the issue of permanency is not ripe for resolution. Two board certified psychiatrists have testified that claimant is suffering from depression as a result of her physical injury or injuries which are work related. Claimant's psychiatrist, in his report, related claimant's condition to her work injury. Likewise, defendants' psychiatrist, Dr. Gallagher, also testified that claimant's depression was causally connected to her work injuries. Dr. Gallagher testified that claimant is in need of additional treatment such as psychotherapy and prescribed medication. Nevertheless, defendants have not provided the necessary psychotheraputic treatment to claimant. This deputy believes it is highly unlikely that claimant will reach maximum medical improvement if she is not afforded the proper psychiatric treatment which even defendants' physician has recommended. His recommended treatment is reasonable, given the nature of claimant's condition. Despite the reasonableness of the recommended treatment, it has not been offered to claimant. Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). This deputy is in agreement with claimant. She is entitled to a running award for the period of time she is temporarily disabled or until such time as maximum medical improvement can be determined. As of the date of the hearing, there had been no indication from either psychiatrist that claimant had attained maximum medical improvement. In fact, the evidence is quite the contrary. Dr. Gallagher recommends a course of treatment which he maintains will assist claimant in improving her depressed condition. Defendants are obligated to provide the proper medical/psychiatric care to claimant so long as the medical treatment is reasonable and necessary. Such reasonable and necessary medical treatment is provided in section 85.27 of the Iowa Code. Defendants must comply and provide the requisite treatment. ORDER THEREFORE, it is ordered: Defendants shall provide to claimant reasonable and necessary medical care, including psychiatric care as provided in section 95.27 of the Iowa Code. Defendants shall also provide to claimant weekly benefits in the form of a running award from the date of claimant's injury and for the duration of her disability or until such time as it Page 14 is determined that claimant has reached maximum medical improvement, and the weekly benefits shall be paid at the stipulated weekly benefit rate of $142.13 per week. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year pursuant to section 85.30, Iowa Code as amended. Defendants shall receive credit for all benefits previously paid. Costs are taxed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this division and pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of October, 1994. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Steven C. Jayne Attorney at Law 5835 Grand Ave STE 201 Des Moines IA 50312 Mr. Joseph S. Cortese, II Attorney at Law 500 Liberty Bldg Des Moines IA 50309 1801; 1802; 1803; 1803.1; 2500 Filed October 28, 1994 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ NANCY LAING, Claimant, vs. File Nos. 924438 1002210 STAFF-TEMPS, A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 1801; 1802; 1803; 1803.1; 2500 Claimant sustained a bilateral carpal tunnel work injury. Subsequent to the work injury, claimant became depressed. She was treated with anti-depressants. Two psychiatrists opined there was a nexus between her carpal tunnel injury and her depression. The psychiatrists for both claimant and defendants opined that prescription medication was not adequate treatment for claimant. They opined that the medications should be coupled with psychotherapy in order to see a vast improvement in claimant's condition. Defendants, as of the date of the hearing, had not provided the psychotherapy, despite the opinion of their physician. HELD: The deputy industrial commissioner bifurcated the issue of permanency since claimant had not reached maximum medical improvement. Claimant was entitled to a running award with respect to her award for weekly benefits. Benefits were awarded from the date of the hearing and for the duration of her disability or until such time as it has been determined that claimant has reached maximum medical improvement. The issue of permanency benefits is bifurcated until a later point in time. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARVIN R FERGUSON, Claimant, File Nos. 961258 & 924495 vs. A R B I T R A T I O N FARMLAND FOODS, INC., D E C I S I O N Self-Insured, Employer, and SECOND INJURY FUND OF IOWA, Defendants. ----------------------------------------------------------------- STATEMENT OF THE CASE This decision concerns claims against the Second Injury Fund of Iowa made based upon an injury to claimant's right hand that occurred on July 19, 1989 and a bilateral injury to both of claimant's hands that occurred on or about April 30, 1990. Claimant has settled cases against the employer using agreements for settlement. In file number 912575 a settlement was approved on March 18, 1994. Under the terms of that settlement claimant was paid 9.5 weeks of compensation for permanent partial disability representing a 5 percent disability of his left hand which resulted from an injury of November 15, 1988. On March 18, 1994 a settlement was approved in file number 924495 wherein claimant was awarded 9.5 weeks of permanent partial disability compensation representing a 5 percent disability of his right hand that resulted from an injury of July 19, 1989. In file number 961258 claimant was awarded 50 weeks of compensation for an injury of April 30, 1990 representing a 10 percent permanent partial disability of the body as a whole pursuant to Iowa Code section 85.34(2)(s). That settlement was also approved on March 18, 1994. The settlement was made using a full commutation. The issues for determination are whether claimant has a prior loss that would entitle him to receive benefits from the Second Injury Fund of Iowa. The other issue is to determine the claimant's entitlement, if any. The Second Injury Fund contends that it is not bound by settlements which are approved by this agency. The Fund contends that claimant had no disability from either of his carpal tunnel syndrome conditions or surgeries and that the claimant's failure to return to work on April 30, 1990 was not a qualifying loss because it resulted from rheumatoid arthritis. The record consists of testimony from Marvin R. Ferguson and jointly offered exhibits 1 through 157. Official notice was taken of the settlements that are previously mentioned in this decision. FINDINGS OF FACT Marvin R. Ferguson is a 54-year-old man who completed the eighth grade at age 15 but did not receive a diploma. He never served in the armed forces. Claimant's work history includes highway construction and the packing house industry. Since 1964 his work has primarily been in the packing house industry although on two occasions he worked briefly on highway construction projects. In 1980 claimant was diagnosed with rheumatoid arthritis. (Exhibit 43) Since that date the condition and waxed and waned. A number of treatment modalities have been employed. He has had multiple surgeries for the condition. Over the years he has had complaints and symptoms in many different parts of his body including his hands and feet. In approximately 1978 Marvin commenced employment with Farmland Foods. He worked on the loading dock then moved to the sausage room where he operated machines for approximately three and one-half years. From 1982 through 1988 Marvin worked in the night shift doing cleanup of the kill floor. In 1988 he moved to the day shift and obtained a job assembling boxes. In late 1988 or early 1989 he developed pain in his hands. He came under the care of Thomas P. Ferlic, M.D., an orthopedic surgeon, who was familiar with claimant as a result of having previously participated in the care of his rheumatoid arthritis. Carpal tunnel syndrome in claimant's left hand was diagnosed and on March 31, 1989 surgery was performed. (Ex. 31, pages 8, 11) Dr. Ferlic opined that there was a causal relationship between claimant's employment in the packing house and the left carpal tunnel syndrome. (Ex. 31, p. 10) Dr. Ferlic also opined that claimant has a 5 percent permanent partial impairment of the left hand as a result of the carpal tunnel syndrome. (Ex. 31, pp. 11-12) After recovering from the carpal tunnel surgery claimant returned to work. He again made boxes for a time but then moved to a sausage link job. At that point he began having trouble with his right hand. On August 8, 1989 claimant saw Thomas Ferlic with symptoms of carpal tunnel syndrome in his right hand. (Ex. 31, p. 12) Dr. Ferlic performed carpal tunnel release surgery on August 14, 1989. Dr. Ferlic opined that the carpal tunnel condition in claimant's right hand was caused by his work in the packing house and that it has left claimant with a 5 percent permanent partial impairment of the right hand. (Ex. 31, pp. 13-14) Claimant returned to work following the right carpal tunnel surgery but Dr. Ferlic restricted him to a cleanup position. He permanently disqualified from working on a line. (Ex. 20) Claimant performed cleanup work until late April 1990. He found that he was unable to perform the work due to the condition of his hands. He received warnings concerning inadequate work performance. His last day of work was April 30, 1990 (or perhaps May 1, 1990). After leaving work claimant underwent surgery consisting of a trigger finger release and removal of a mass from his right wrist. Dr. Ferlic's note of May 8, 1990 indicates that the pathology report was consistent with rheumatoid arthritis. (Ex. 1, p. 11) Dr. Ferlic subsequently reported that he felt strongly that claimant should not return to any type of employment in a packing house. (Ex. 1, p. 12) Claimant has no permanent disability resulting from the trigger finger condition. (Ex. 26) In December 1990 Dr. Ferlic allowed claimant to return to restricted work with restrictions that included no lifting of greater than ten pounds, no use of a high pressure hose and no repetitive grasping. (Ex. 27) The employer did not allow claimant to return to work with those restrictions. He has not since returned to work anywhere although he has made an employment search as part of his qualification for unemployment benefits. (Ex. 153, pp. 7-18) The record shows beyond any doubt that Marvin R. Ferguson is totally disabled. (Ex. 19, p. 4) He applied for vocational rehabilitation assistance but his file was closed because he was considered to be handicapped too severely to benefit from the services. (Ex. 154) He has been awarded social security disability benefits. (Ex. 156) Dr. Ferlic considers him to be totally disabled. (Exs. 28- 30) Dennis W. Crabb, M.D., has also characterized claimant as being incapable of performing gainful employment. (Ex. 42) Dr. Ferlic expressed the opinion that claimant had a 15 percent permanent impairment of each foot as a result of bilateral bunionectomy surgery performed in 1985. (Ex. 31, p. 7) Dr. Ferlic also opined that by December 1990 claimant had a 15 percent permanent impairment of each hand. He stated that the progression of the disability had occurred subsequent to the surgery. He stated that part of the worsening was due to his underlying arthritic disease. He also felt that claimant's work activity had contributed to the worsening in the sense that it exacerbated the rate at which he worsened. (Ex. 31, pp. 16-18) He felt that the worsening was work related in the sense that the symptoms had worsened during the time that the claimant had been working. Dr. Ferlic gave no description with regard to the mechanism of further injury that he felt had occurred after claimant's return to work following the carpal tunnel surgeries. It is noted that claimant had worked on the cleanup for several years without any problems with his hands prior to the time he moved to the box making job. William R. Palmer, M.D., claimant's rheumatologist, reported: There is no doubt in my mind that Mr. Ferguson's carpal tunnel symptoms and tenosynovitis have been definitely aggravated by his work. Though it is true that carpal tunnel symptoms and tenosynovitis are frequently seen in patients with rheumatoid arthritis, it is my sincere opinion that the severity of these conditions as exhibits by Mr. Ferguson can be explained by the effects of his occupation superimposed upon his rheumatoid arthritis. (Ex. 86) Dr. Ferlic addressed the issue of causation as follows: "And, my thought on Mr. Ferguson is that his rheumatologic condition could have caused it, but they're seen often enough in packinghouse [sic] workers that I, that I can say that this exacerbated his condition, made it worse." (Ex. 31, p. 30) According to Dr. Ferlic trigger fingers and carpal tunnel syndrome are common in packing house workers who do not have rheumatoid disease. It is that connection that seems to be the principle basis for Dr. Ferlic's opinion concerning causation. (Ex. 31, p. 24) Dr. Ferlic generally did not give claimant specific work restrictions attributable to his carpal tunnel syndrome condition. He did so intentionally so that claimant could arrange some type of employment with the employer that would not bother his condition. (Ex. 31, p. 27) It is noted that Dr. Ferlic did permanently remove claimant from line work. (Ex. 20) The record of this case does not contain any expert opinion evidence on the issue of apportioning the claimant's carpal tunnel syndrome condition between the rheumatoid disease and the work activity. There is no opinion in the record apportioning claimant's current state of total disability between that produced by the carpal tunnel syndrome condition and that attributable to the rheumatoid arthritis condition. When the record is viewed as a whole, however, it is apparent that the rheumatoid arthritis is the principle disabling component. The assessment of this case as made by Dr. Ferlic is accepted as being correct with regard to his opinions of causation and extent of disabilities. The only exception, however, is that a close reading of the evidence shows that the cleanup work performed after claimant's return to work in October 1989 was considered by Dr. Ferlic to be causally related to the work simply because claimant was working at the time the condition worsened. (Ex. 31, p. 17) The settlements that have been entered into are fully supported by the evidence which is in the record of this case. CONCLUSIONS OF LAW Section 85.64 governs Second Injury Fund liability. 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. Second, the employee must sustain a loss or loss of use of another specified member or organ through a compensable injury. Third, 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 industrial disability present after the second injury that exceeds the disability attributable to the first and second injuries. Section 85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990); 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). Apportionment of disability between a preexisting condition and an injury is proper only when some ascertainable portion of the ultimate industrial disability existed independently before an employment-related aggravation of disability occurred. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Hence, where employment is maintained and earnings are not reduced on account of a preexisting condition, that condition may not have produced any apportionable loss of earning capacity. Bearce, 465 N.W.2d at 531. Likewise, to be apportionable, the preexisting disability must not be the result of another injury with the same employer for which compensation was not paid. Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990). The burden of showing that disability is attributable to a preexisting condition is placed upon the defendant. Where evidence to establish a proper apportionment is absent, the defendant is responsible for the entire disability that exists. Bearce, 465 N.W.2d at 536-37; Sumner, 353 N.W.2d at 410-11. Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. The Second Injury Fund argues that it is not bound by the settlements and commutation because they were not a party to the settlements. Any settlement must be approved by the industrial commissioner to be enforceable. (Iowa Code sections 86.27, 86.13, 85.35, and 85.47) The function of the industrial commissioner when reviewing settlements for purposes of approval is to insure that there is a factual basis to support the settlement that has been agreed upon by the parties and to insure that the settlement is in accord with the law. (There would be no other purpose for requiring the industrial commissioner to approve settlements.) Once a settlement is approved it has the same force and effect as a decision entered in a contested case proceeding. It has previously been held by this agency that the Second Injury Fund is bound by the stipulation regarding rate of compensation as part of a settlement that has been approved. Klebs v. Johnsrud Transport, Inc., file number 918569 (App. Dec. 1994). The situation is similar to applying the doctrine of preclusion to one who was not a party at the time the original adjudication occurred. A reading of the Second Injury Fund statute seems to indicate that the Fund does not become involved until the dispute between the employer and employee has been resolved. It would be very inefficient from a standpoint of administrative burden and cost if the Fund had to be involved in every case at every point to insure that its interests were protected in the event a claim was later made against the Fund. Normally it would be expected that the interests of the employer would not be in conflict with the interests of the Fund. Accordingly, the system of having settlements approved by the industrial commissioner provides an ample safeguard to protect the interest of the Fund. A settlement between the employer and employee is presumptively valid and binding upon the Second Injury Fund of Iowa. The binding nature is not, however, absolute. Whenever there is evidence of fraud, collusion or mistake, the Second Injury Fund may raise the issue and introduce such evidence as it deems appropriate in order to guard against the possibility of unfair prejudice to the Fund. It serves no useful purpose, however, to litigate or re-litigate issues which have previously been adjudicated and which are supported by substantial evidence. It is therefore concluded that the three settlements shown in the record of this proceeding are valid and binding upon the Second Injury Fund of Iowa since no evidence has been introduced showing any of the settlements to have been tainted by fraud, collusion, deceit, mistake of fact or error of law. It is recognized that in disputed cases the facts may be viewed in varying ways which could give differing results depending upon where weight is given and what inferences are made. Great deference should be given to those facts which are established by the agreement between the employer and employee when conflicting evidence exits. When such occurs and the settlement is approved by the industrial commissioner the mere fact that a difference result could be reasonably reached does not constitute a basis for reopening the issue so long as it appears as though the result provided by the settlement was made in good faith by the parties. Hoffman v. Second Injury Fund of Iowa, file numbers 831136, 869798 (Arb. Dec. Aug. 10, 1990); Madsen v. Wilson Foods Corp., file numbers 695235, 808301 (Arb. Dec. Jan. 23, 1991). In view of the lack of expert opinion evidence on the issue of apportionment it would seem that the claimant is legally entitled, as a matter of law, to an award of permanent total disability. Such is not, however, the case since the disability attributable to the rheumatoid arthritis is so apparent. To be certain, claimant has problems with his hands. Those problems would not, however, be totally disabling were it not for the interaction of the rheumatoid arthritis condition. Progressive conditions such as rheumatoid arthritis provide a particular dilemma when determining disability benefit entitlements. To be certain, the rheumatoid disease is not work related. The normal rules dealing with aggravation of a preexisting condition and apportionment can cause an employer to be liable for paying for benefits for disability attributable to a rheumatoid condition. That is especially true in a case such as this where the defense has failed to introduce expert opinion evidence on the issue of apportionment. It is noted that the work restrictions recommended by Dr. Ferlic in December 1990 would not normally render a person totally disabled. When the evidence is viewed as a whole it becomes apparent that the physicians are finding claimant to be totally disabled primarily on the basis of his rheumatoid arthritis, with lesser importance on his carpal tunnel syndrome condition. It is therefore determined that Marvin R. Ferguson has a 35 percent permanent partial disability as a result of his carpal tunnel syndrome injuries. It is further determined that the disability is manifested with the injury date of April 30, 1990, file number 961258. Prior to that time the claimant had returned to work and worked virtually without activity restrictions. Exhibit 157 shows his earnings to have not changed appreciably following the carpal tunnel syndrome surgeries in comparison to what the earnings had been previously. Thirty-five percent permanent partial disability entitles the claimant to 175 weeks of compensation. File number 961258 establishes the rate of compensation to be $261.56. The compensable value of the claimant's preexisting 15 percent impairment of each foot is 45 weeks. The compensable value of the preexisting 5 percent permanent partial disability of each hand is 19 weeks. The compensable value of the preexisting disability is therefore 64 weeks. The employer's liability for the injury of April 30, 1990 is 50 weeks. A total of 114 weeks is therefore to be deducted from the entitlement of 175 weeks. The Second Injury Fund of Iowa is therefore liable to pay claimant 61 weeks of compensation at the rate of $261.56 per week. That amount computes to $15,955.16. The time for payment of the employer's benefits is long past and the remaining liability of the Fund is fully accrued, past due and owing. When deciding this case it is apparent that regardless of whether April 30, 1990 is considered to a different injury or whether the date of July 19, 1989 was to be considered the date of injury, the outcome would be the same. The record would support a finding that claimant's return to work in October 1989 and his inability to continue working is evidence of the disability that resulted from the carpal tunnel injury. The view of the evidence that is supported by the settlement entered into by the parties for the April 30, 1990 injury is the view that is adopted when determining this case. ORDER IT IS THEREFORE ORDERED that the Second Injury Fund of Iowa pay Marvin R. Ferguson sixty-one (61) weeks of compensation for permanent partial disability at the rate of two hundred sixty-one and 56/100 dollars ($261.56). The entire amount thereof is past due and owing and shall be paid in a lump sum in the amount of fifteen thousand nine hundred fifty-five and 16/100 dollars ($15,955.16). All of the foregoing payment is payable under file number 961258 attributable to the injury date of April 30, 1990. No recovery is payable in file number 924495. It is further ordered that the costs of this proceeding are assessed against the Second Injury Fund of Iowa. Signed and filed this __________ day of May, 1995. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. James Thorn Attorney at Law 310 Kanesville Blvd PO Box 398 Council Bluffs, IA 51502-0398 Ms. Judith Ann Higgs Attorney at Law 701 Pierce St, STE 200 PO Box 3086 Sioux City, Iowa 51102 Ms. Shirley Steffe Assistant Attorney General Hoover State Office Bldg Des Moines, IA 50319 2906 3301 3203 1404 1803 1806 1808 2209 2206 Filed May 1, 1995 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARVIN R FERGUSON, Claimant, File Nos. 961258 & 924495 vs. A R B I T R A T I O N FARMLAND FOODS, INC., D E C I S I O N Self-Insured, Employer, and SECOND INJURY FUND OF IOWA, Defendants. ---------------------------------------------------------------- 2906 3301 3203 1404 Settlement between employee and employer that is approved by industrial commissioner is presumptively valid and binding on Second Injury Fund; but presumption may be avoided if Fund carries burden of proving fraud, collusion, deceit, mistake of fact or error of law. Second Injury Fund statute does not contemplate relitigating entire case whenever claim is made against the Fund. 1803 1806 1808 2209 2206 Claimant with severely disabling rheumatoid arthritis (preexisting condition) and resulting loss of use of fact, held entitled to 35 percent of permanent partial disability from bilateral carpal tunnel injury. The combination caused him to become unemployable and totally disabled. Prior losses and employer's liability off set 114 weeks; Fund liable for 61 weeks. Disability from rheumatoid arthritis apportioned without expert medical evidence because its role was so apparent and severe in causing the total disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JERRY BIEZUNS, : : Claimant, : : vs. : : File No. 924582 HARKER'S INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONAL UNION FIRE INSURANCE,: : Insurance Carrier, : Defendants. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Jerry Biezuns, claimant, against Harker's Inc., employer, and National Union Fire Insurance Company, insurance carrier, for benefits as the result of an injury which occurred on June 12, 1989. A hearing was held in Sioux City, Iowa, on August 26, 1992, and the case was fully submitted at the close of the hearing. Claimant was represented by Robert J. Dull. Defendants were represented by Rita C. Grimm. The record consists of the testimony of Jerry Biezuns, claimant; claimant's exhibits A through V and employer's exhibits 1 through 5. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether the injury was the cause of permanent disability; Whether claimant is entitled to temporary or permanent disability benefits, and, if so, the extent of benefits to which he is entitled; and Whether claimant is entitled to medical benefits. FINDINGS OF FACT CAUSAL CONNECTION It is determined that claimant sustained an injury on June 12, 1989, which arose out of and in the course of employment with employer and that the injury was the cause of temporary and permanent disability. Claimant worked for employer for approximately ten Page 2 years from 1979 to 1989. His last job was described as supervisor of the wash bay. This job required claimant to wash, clean up, service, and perform light maintenance on employer's vehicles. Claimant testified that the job required him to use a high pressure washing hose almost every hour of the day. He also used pails and scrub brushes. Claimant testified that in approximately 1984 or 1985 he began to experience weakness in his right arm. Claimant related that he was not able to hold the pressure hose as long as it was required to do the job. He said that he experienced weakness, numbness and no feeling in his right arm and hand. Claimant said that it was necessary to shake his arms in order to use them. Eventually, he saw his family physician, Thomas L. Duncan, M.D., on June 12, 1989. On June 12, 1989, Dr. Duncan recorded that claimant was an employee of Harker's who washed trucks for the last nine years and used a high pressure hose in his right hand. He suspected ulnar neuropathy and ordered nerve conduction studies (exhibit J, page 1). An electromyography and electrodiagnosis performed on July 3, 1989, disclosed that the right median sensory conduction across the right wrist was in the lower range of normal. Ulnar motor and sensory conductions around the elbow were in the lower range of normal. The neurologist, D. Nitz, M.D., stated that both of these areas may be developing early entrapment (defendants' ex. 1, p. 2). Dr. Duncan wrote to claimant on July 8, 1989, that these studies disclosed nerve pressure in the right wrist and about the elbow (claimant's ex. A). The doctor explained to claimant on July 18, 1989, that the nerve conduction velocity studies showed evidence of ulnar nerve entrapment. The doctor suggested a change in job duties for three to four weeks and claimant was given a slip placing him on light duty for three to four weeks (ex. B; ex. J, p. 1). Claimant was taken off work entirely from July 24, 1989 (ex. C) through July 30, 1989 (ex. D), a period of seven days or one week. Claimant testified that his light duty consisted of working on motors in the shop in the same building, sweeping floors and picking up things such as 80-pound engine heads. Claimant averred that his so-called light duty work was, in fact, repetitive work and that it was also heavy work. He contended that it was not light at all. Five days later, on August 4, 1989, claimant quit his job with employer and started a new job with the city of Le Mars as a laborer. For one or two months, he simply followed other employees around and studied and learned the duties involved in his new job. He read meters, performed maintenance, mowed, trimmed, serviced pickup trucks, and observed storage tanks which required climbing ladders to look into the tanks. Page 3 Claimant testified that during the period of light duty with employer and during the first one or two months with the city of Le Mars that his right upper extremity symptoms subsided. When he began regular duties for the city of Le Mars, his right upper extremity symptoms became worse again and got back to the same point it was at when he quit his job with employer. Dr. Duncan confirmed on July 28, 1989, that claimant's peripheral ulnar neuropathy symptomatology improved with being off work after June 24, 1989 (ex. J; def. ex. 2). Also on July 28, 1989, Dr. Duncan stated that claimant was to avoid the high pressure hose and repetitive motions with his right arm (ex. D). On October 7, 1989, Dr. Duncan summarized claimant's course of treatment. He noted that light duty improved claimant's condition, but that upon regular duty he would probably experience recurrent symptomatology. He recommended that claimant consider a surgical release of the entrapped areas, but first should consider a change in his work duties (ex. E). Thus it would appear that claimant followed his physicians recommendations when he changed jobs on August 4, 1989, before electing surgery, which was eventually performed on January 30, 1992. On October 19, 1989, Dr. Duncan wrote, "It is my opinion that his Ulnar Neuropathy is directly related to his employment at Harkers and that he suffers an approximately 33% disability in arm function as a result of his neuropathy. This is based on the American Medical Association's guide to evaluation of impairment." (ex. F). Claimant testified and the record verifies, that claimant saw Richard P. Murphy, M.D., an orthopedic surgeon, for an independent medical examination on January 4, 1990, which was requested by the insurance carrier. Dr. Murphy recorded that claimant initially noticed numbness and tingling in the ring and little finger on the right hand that was markedly increased by the use of the water gun used to wash trucks for Harker's Inc. The doctor added that these symptoms would awaken claimant from a sound sleep at night. His physical examination revealed a positive Tinel's sign and decreased sensation in the ulnar nerve distribution with weakness of the ulnar innervated muscles. Dr. Murphy diagnosed (1) ulnar nerve compression, right elbow antecubital fossa and (2) possible right median nerve compression at the wrist (exs. G & H). A second electromyography and electrodiagnosis performed at the Marian Health Center by Dr. Nitz on April 2, 1990, reported no evidence of slowing around the elbow or across the wrist. EMG's of ulnar supplied muscles were normal. Right median sensory conductions were normal (ex. 3; ex. K). Dr. Duncan reported on April 25, 1990, that the favorable electromyography and nerve conduction studies were good news and obviated surgery at that time, he nevertheless stated that claimant's job duties were limited because of his condition and that he would develop recurrent symptomatology if he were exposed to the same job duties again (ex. L). On July 24, 1990, Dr. Murphy requested to Page 4 see claimant again after he saw the results of the April 2, 1990, nerve conduction test (ex. M). There are no records of medical treatment after he saw Dr. Duncan on April 25, 1990, for over a year until claimant saw Dr. Murphy on May 17, 1991. Thus, the insurance carrier did not comply with Dr. Murphy's request of July 24, 1990, that he re-evaluate claimant at that time. When claimant did see Dr. Murphy on May 17, 1991, claimant complained of persistent right hand weakness, increased tingling of the fingers and also pain with pressure on the right elbow. Dr. Murphy confirmed that claimant sustained a symptomatic increase since his previous examination on January 4, 1990. Dr. Murphy recommended still another EMG and nerve conduction test in Omaha and that if it should show significant damage to the nerve, he may require surgery (ex. R). Apparently, Dr. Murphy's recommendation was not followed by the insurance carrier because there is no evidence of another EMG and nerve conduction study based on Dr. Murphy's recommendation. Dr. Duncan saw claimant on July 16, 1991, and recalled that he first saw claimant in June of 1989 when claimant presented with symptoms of ulnar neuropathy which he thought were directly related to his employment at Harker's and the use of a high pressure hose. He said claimant had a significant ulnar neuropathy and needed surgery. He added that he was appalled that the surgery had been delayed because of a dispute between employers and insurance carriers. Dr. Duncan concluded by stating that this process of denial of fault is leading to further deterioration of claimant's condition (ex. N). Dr. Murphy, defendants' own choice of medical examiner and evaluator wrote to the attorney for defendants, on July 1, 1991, as follows: In response to your letter to us of June 20, 1991, in regard to your denial that Mr. Biezuns' ulnar nerve injury is related to his work at Harker's, Inc., I disagree. It appears to me that it is clearly related to his job duties as an employee at Harker's when he utilized a high pressure hose. This is well documented by Thomas Duncan, M.D., in numerous examinations of Mr. Biezuns in 1989 and verified by a positive nerve conduction delay of the ulnar nerve at the elbow on July 3, 1989. The patient has had symptoms throughout (1989 to May of 1991) consistent with ulnar nerve injury, and has had two positive nerve tests by different examiners, both consistent with ulnar nerve injury at the elbow. I am also aware of normal nerve conduction performed by Dr. Nitz on April 2, 1990; however, it is not unusual for nerve conduction testing to vary from examiner to examiner and from time to time. Page 5 Thus, it remains my opinion that the patient has definite evidence of ulnar nerve injury both clinically and electrically, dating back to his work at Harker's, Inc., and I have advised Mr. Biezuns that by not having the surgery he may be doing further damage to the ulnar nerve. (claimant's exhibit O) Dr. Duncan wrote on December 31, 1991, that he had examined Dr. Murphy's letter of July 1, 1991, and that he concurred with Dr. Murphy's comments. Dr. Duncan concluded by stating, "Dr. Murphy is of the same opinion I am that the injury is related to his work at Harker's and that further denial of Mr. Biezuns' claim is potentially causing more disability for Jerry." (ex. P). On the same date, December 31, 1991, Dr. Murphy wrote to defendants' attorney that the work which claimant had been performing from his initial examination on January 4, 1990, until his second examination on May 30, 1991, did indeed contribute to his ulnar nerve injury. Dr. Murphy continued by stating that it was a sad commentary on the state of affairs of the workmens' compensation system that while various insurance companies and attorneys are deciding on who is responsible for claimant's injury, that the injury continues to progress resulting in further permanent impairment. Dr. Murphy stated in this letter of December 31, 1989, that he recommended surgery back on May 30, 1991 (ex. 5). However, there is no office note or letter from Dr. Murphy on that date in evidence. In summary, Dr. Murphy recommended surgery on May 30, 1991 (ex. 5). He further stated the need for surgery was clearly related to claimant's job duties for this employer when he utilized a high pressure hose. Dr. Murphy unequivocally told defendants' counsel that he disagreed with her denial of this claim (ex. O). Dr. Murphy was the physician retained by defendants to perform an independent medical examination on their behalf. Thus, defendants refused to respect the opinion of their own independent evaluator and refused to follow his advice. Dr. Duncan, claimant's family physician, clearly recommended surgery on July 17, 1991, after conservative treatment and a change of jobs did not relieve the condition which he stated was caused by claimant's employment with this employer arising out of the use of the water pressure hose (ex. N). Claimant testified that in May or June of 1991, Dr. Duncan interpreted Dr. Murphy's opinion and concurred in it. Claimant said that Dr. Duncan told him to consider surgery; otherwise, he could suffer damage to his arm for life. Claimant related that Dr. Duncan recommended that claimant see Timothy M. Zoellner, M.D., in Sioux Falls, South Dakota. Claimant testified that he also preferred to see a doctor closer to home. Dr. Zoellner recorded that he first saw claimant on Page 6 July 23, 1991, and diagnosed compression of the ulnar nerve at the elbow (ex. W, p. 2). On January 13, 1992, Dr. Zoellner recorded that the latest EMG and nerve conductions did suggest cubital tunnel. On January 30, 1992, Dr. Zoellner performed a right ulnar nerve transposition, right elbow (ex. W, p. 1). Claimant did not testify as to how long he was off work or when he went back to work after the surgery. On February 10, 1992, Dr. Zoellner said claimant should not work (ex. W, p. 1). On February 24, 1992, he considered returning claimant to work on light duty in two weeks (ex. Q, p. 2). On March 6, 1992, he reported that claimant had excellent motor function and full range of motion of the elbow but still had some numbness in his small finger. Claimant continued to see Dr. Zoellner on March 27, 1992, April 17, 1992, and July 14, 1992, with continued complaints of numbness in his small finger and joint stiffness in his elbow, wrist and hand, as well as paresthesias and hypersensitivity in the hypothenar eminence in the wrist. On July 14, 1992, Dr. Zoellner diagnosed possible nerve compression at the wrist and ordered a repeat EMG and nerve conduction study to assess this (ex. Q, p. 2). On August 18, 1992, Dr. Zoellner recorded that claimant complained of persistent paresthesias in his right forearm, wrist and hand, which was confirmed by his own examination even though the EMG and nerve conductions were essentially normal. He concluded that claimant may be having some regenerative phenomena or persistent residual mild scarring. He declined to give a permanent impairment rating for ulnar nerve entrapment and release with mild residual paresthesias until his follow-up examination in two or three months (ex. W, p. 2). The date of the hearing was August 26, 1992. Claimant saw Joel T. Cotton, M.D., a neurologist in Omaha on July 17, 1992 at the request of defendants. Claimant complained of some partial loss of sensation in the fourth and fifth fingers of the right hand, some discomfort in the right elbow and impaired grip strength in the right palm over the site of the original numbness. Dr. Cotton's examination found normal strength in the right arm proximally and distally and specifically in all innervated muscles in the right hand. He did verify diminished sensation in the fourth and fifth fingers of the right hand. His clinical impression was a mild loss of sensation in the fourth and fifth fingers of the right hand in the distribution of the ulnar nerve and he judged that this abnormality was mild. He found no loss of strength, dexterity or atrophy in the muscles of the right hand innervated by the ulnar nerve. He found no additional evidence of physical injury to the claimant's right upper extremity, shoulder or neck. Dr. Cotton assessed a 5 percent permanent impairment of the right upper extremity as a result of his previous right ulnar neuropathy based upon the Guides to the Evaluation of Permanent Impairment, 3d ed. revised, table 14, page 46 (ex. 4, pp. 1-3). Dr. Cotton contended that Dr. Duncan's assessment of a 33 percent Page 7 permanent impairment back on October 19, 1989, was invalid because it was not based upon irreversible damage which had failed to respond to treatment at that time (ex. 4, p. 3). Dr. Cotton remarked that claimant's symptoms subsided when he ceased to work for employer and this was verified by claimant's testimony and the EMG comparisons between July 3, 1989 and April 2, 1990. Dr. Cotton, like Dr. Duncan and Dr. Murphy, concluded that claimant's employment for the city of Le Mars caused him material and significant aggravation of the preexisting condition which occurred during his employment for this employer. He further concluded that employment for the city of Le Mars was a material and significant factor in necessitating the right ulnar transposition performed on January 30, 1992 (ex. 4, p. 4). Based upon the foregoing evidence, it is determined that the work performed by claimant for employer, in particular, the use of the water pressure gun, was a primary cause of claimant's injury to his right arm and hand. Both Dr. Duncan and Dr. Murphy stated that claimant's employment for this employer, using the water pressure gun, was the cause of the injury to claimant's right arm and hand. Dr. Zoellner proceeded on the same history and suggested no other cause for claimant's injury. Dr. Cotton also proceeded on the same history and suggested no other cause for the injury to claimant's right arm and hand. Claimant testified that he felt that the use of the water pressure gun was the cause of this injury because he first detected a problem when he was unable to hold the gun as long as it was required in order to perform his job. The evidence is overwhelming that the use of the water pressure gun was (1) the cause of the injury to claimant's right arm and hand, (2) the corrective surgery that was performed and (3) the residual permanent disability in his right hand. Defendants assert that claimant's continued employment with the city of Le Mars further injured claimant's right arm and hand. Dr. Duncan, Dr. Murphy and Dr. Cotton all concur in this proposition. Nevertheless, the overwhelming weight of the evidence establishes that this injury to the right arm and hand originated during claimant's nine years of employment with employer and more specifically, during the last four or five years and sometime after 1984 and 1985, from using the water pressure gun. Claimant's employment with this employer need not be the sole cause of his injury, impairment and disability. A cause is proximate if it is a substantial factor in bringing about the result. It only needs to be one cause; it does not have to be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). In view of the medical evidence provided by Dr. Duncan and Dr. Murphy, it can safely be stated that there is apparent to the rational mind, upon consideration of all the circumstances, that there is a causal connection between the conditions under which the work was required to be performed and the resulting injury. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). Causal connection is primarily in the realm of the expert witness Page 8 and both Dr. Duncan and Dr. Murphy, the former being claimant's family physician and the latter being defendants' examiner and evaluator, unequivocally found that claimant's use of the water pressure gun while working for this employer was the cause of this injury and resulting disability. Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967); Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The injury is directly traceable to claimant's employment activities with this employer. Langford v. Kellar Excavating and Grading, Inc., 191 N.W.2d 667 (Iowa 1971). Moreover, if defendants desire an apportionment of the disability, the burden of proof is upon the defendants to show how much of the disability is to be pro-rated to the second employer. Varied Enterprises v. Sumner, 353 N.W.2d 407 (Iowa 1984); Becker v. D & E Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976); rule 14(f)(5) Iowa Rules of Appellate Procedure. Defendants have not demonstrated what portion, if any, of claimant's disability is identifiable and independently attributable to his subsequent work for the city of Le Mars. Bearce v. FMC Corporation, 465 N.W.2d 531 (Ia. App. 1991); Tussing v. George A. Hormel and Co., 417 N.W.2d 457 (Iowa 1990); Becker v. D & E Easy Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976) Moreover, defendants should not be permitted to deny claimant workers' compensation medical benefits and weekly benefits for a protracted period of time in contravention of claimant's family physician and the advice of their own selected medical examiner during which time claimant's condition worsens, and then benefit from the denial of the benefits to which claimant was rightfully entitled. Based upon the strong, clear, unequivocal and forceful testimony of both Dr. Duncan and Dr. Murphy, it is not possible to say there was a legitimate dispute on causation. Juste v. HyGrade Food Products Corp., IV Iowa Industrial Commissioner Reports, 190 (App. Dec. 1984). Nor can it be said that claimant's entitlement to benefits was fairly debatable. Saydel v. University of Iowa Physical Plant, file number 818849 (App. Dec. 1989); Stanley v. Wilson Foods, file number 753405 (App. Dec. 1990); Heidt v. Linn Photo Co., file number 916737 (App. Dec. 1992). Wherefore, it is determined that the injury of June 12, 1989, was the cause of both temporary and permanent disability. ENTITLEMENT-TEMPORARY DISABILITY It is determined that claimant is entitled to two periods of temporary disability benefits. The first period is for one week and the second period is for 5.143 weeks, a total of 6.143 weeks. During the first period, Dr. Duncan took claimant off work completely on July 24, 1989 (ex. C) and did not return him to work light duty until July 31, 1989 (ex. D). This is Page 9 a period of seven days and claimant is entitled to one week of temporary disability benefits. During the second period, Dr. Zoellner performed surgery on January 30, 1992 (ex. W, p. 2) and claimant was off work through March 6, 1992 (ex. Q, p. 2). Furthermore, the parties stipulated in the prehearing report that although entitlement cannot be stipulated, that claimant was off work during this period of time. This period of time is five weeks and one day and claimant is entitled to 5.143 weeks of temporary disability benefits. This period of time is supported by the evidence summarized above. Therefore, one week added to 5.143 weeks equals 6.143 weeks of temporary disability benefits to which claimant is entitled. ENTITLEMENT-PERMANENT DISABILITY It is determined that claimant is entitled to 12.5 weeks of permanent partial disability benefits based upon a 5 percent permanent impairment to the right upper extremity (.05 times 250 equals 12.5). Dr. Duncan's evaluation of 33 percent disability of the right arm determined on October 19, 1989, preceded the surgery. Furthermore, even though he states it is based upon the American Medical Association's Guides to the Evaluation of Permanent Impairment, he did not further explain where he found this percentage rating in the Guides. Moreover, the Guides rate impairment, not disability. Dr. Duncan's report gives no reliable guidance on the degree of "impairment," nor did he say the "disability" was permanent. Dr. Cotton's five percent permanent impairment evaluation was made on July 20, 1992, after the surgery was performed and shortly before the hearing. Dr. Cotton specified that he found his rating on page 46, table 14, of the Guides to the Evaluation of Permanent Impairment, 3d ed. revised. Dr. Zoellner refused to give a rating for the reason that the symptoms were still changing and may be reoccurring and, therefore, he felt a permanency rating at this time was premature (ex. Q; ex. W, p. 2). Wherefore, the best evidence and the only evidence in the record of the amount of permanent impairment to claimant's arm is the permanent impairment rating of Dr. Cotton in the amount of 5 percent of the right upper extremity which entitles claimant to 12.5 weeks of permanent partial disability benefits. MEDICAL EXPENSES Claimant submitted $2,643.50 in medical expenses. An itemized list of medical expenses is attached to the prehearing report and reads as follows: (1) Midwest Anesthesiology Services $400 (ex. F); (2) Sioux Falls Surgical Center $850 (ex. T); (3) Sioux Falls Physical Therapy Center $158.50 (ex. U); (4) Orthopedic and Sports Medicine Clinic, P.C. $1235 (ex. V). These expenses total Page 10 $2,643.50. Defendants dispute that these expenses are causally connected to the injury of June 12, 1989. It is determined from the evidence summarized above that the injury was the cause of the surgery on January 30, 1982, and was the cause of the expenses for the surgical facility, the surgeon, the anesthesiologist, and the subsequent physical therapy. Dr. Duncan, Dr. Murphy and Dr. Zoellner, all three, recommended surgery for this injury. Surgery requires a surgical facility, a surgeon, anesthesia, and in this case, the physical therapy was recommended by the treating surgeon. Defendants have disputed that these expenses were for reasonable and necessary medical treatment caused by the injury of June 12, 1989. It is determined that the expenses of a surgical facility, a surgeon, anesthesia, and the physical therapy subsequent to surgery recommended by the treating surgeon are reasonable and necessary expenses caused by the injury of June 12, 1989. Surgery was recommended by three doctors and these are the normal surgical and post surgical expenses. The defendants dispute the reasonableness of the charges itemized above. Claimant's entitlement to medical expenses pursuant to Iowa Code section 85.27 was designated as a hearing issue on the hearing assignment order. It was the determination of this agency that designating Iowa Code section 85.27 as a hearing issue on the hearing assignment and designating that the reasonableness of the medical charges are a disputed issue on the prehearing report and order approving the same is sufficient to place the reasonableness of the medical fees in issue. McClellon v. Iowa Southern Utilities, file number 894090 (App. Dec. 1992). That decision further restated the policy and precedent of this agency that when the reasonableness of medical fees are disputed, that the claimant bears the burden of proving that the medical fees are reasonable. Anderson v. High Rise Construction Specialists, Inc., file number 850096 (App. Dec. 1990). The McClellon case further determined that it is not defendants burden to show that the medical expenses were not reasonable; but rather it is claimant's burden to prove that the medical charges are reasonable. Furthermore, in order for claimant to prevail on the issue of reasonableness of medical bills, claimant must produce some evidence which proves that the bills are reasonable. McClellon further determined that (1) payment of the bills by claimant is not evidence that the bills are reasonable; (2) that the good reputation of a medical facility is not sufficient evidence to support a finding that the medical charges are reasonable; (3) that there is no inference that the medical treatment administered by a Page 11 licensed or board certified physician is reasonable; and (4) that agency expertise and experience in numerous other cases is not sufficient to support a finding that the medical charges are reasonable. In this case, as in the McClellon case, claimant failed to introduce any evidence to establish that the fees were reasonable. The Anderson and McClellon rule was moderated slightly in the case of Schneider v. Prairie Contractors, Inc., file number 869747 (App. Dec. 1992) where it was held that payment of the medical fees by claimant can constitute evidence of the reasonableness and in the absence of contrary evidence this is sufficient to carry the claimant's burden of proof on this issue. The Schneider decision states that the McClellon decision is overruled on this limited ground. However, in this case, there was no evidence that claimant paid these medical expenses and fees. Midwest Anesthesiology Services appears to be totally unpaid (ex. S). An unknown insurance carrier paid $536 of the $850 charge of the Sioux Falls Surgical Center (ex. T). Aetna Insurance paid $27.20 on the physical therapy bill and claimant himself paid $20 of it, but the bulk of the bill remains unpaid (ex. U). Apparently, large portions of the Orthopedic and Sports Medicine bill have been paid or are expected to be paid because the bill only shows $179 due from their total charges of $1235. Thus, it would appear that payment was either made or expected to be received from an insurance carrier because the bill shows that three claims were filed. Claims are not usually filed against individuals. Rather, individuals are billed. Thus, it would appear that claimant cannot fall within the limited exception to the Anderson and McClellon rule provided by the Schneider case. The claimant also makes a claim for travel expenses for five trips from his home in Le Mars to Sioux Falls, a 180 mile trip in the amount of $229.50. In can be determined from the evidence that claimant made trips to Sioux Falls to see Dr. Zoellner on January 23, 1991, January 13, 1992, January 30, 1992, February 10, 1992, February 24, 1992, March 6, 1992, March 27, 1992, April 17, 1992, July 14, 1992, and February 10, 1992. This constitutes ten trips to Sioux Falls to see Dr. Zoellner. Official notice is taken of the fact that it is approximately 90 miles to Sioux Falls, South Dakota, from Le Mars, Iowa, and that round trip mileage would be approximately 180 miles and that claimant is entitled to at least five trips from Le Mars to Sioux Falls and back. Five times 180 miles equals 900 miles. The allowable mileage rate is 21 cents per mile. This gives claimant an entitlement to $189 for five round trips to Sioux Falls, South Dakota. Wherefore, it is determined that claimant is entitled to $189 medical mileage. CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following Page 12 principles of law, these conclusions of law are made: That the injury of June 12, 1989, was the cause of both temporary and permanent disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant is entitled to the full seven days or one week of temporary disability benefits from July 24, 1989 through July 30, 1989, because this injury resulted in permanent partial disability. Iowa Code sections 85.32 and 85.33(1). That claimant is entitled to five weeks and one day of healing period benefits from the date of the surgery on January 30, 1992 through March 6, 1992, which is a period that the parties stipulated that the claimant was off work and which period is supported by the medical evidence. Iowa Code section 85.34(1). That claimant is entitled to 12.5 weeks of permanent partial disability benefits based upon a five percent permanent impairment to his right arm. Iowa Code section 85.34(2)(m). That the injury was the cause of the expenses incurred for a surgical facility, a surgeon, anesthesiology, and the physical therapy subsequent to surgery ordered by the treating surgeon and that this treatment was reasonable treatment for the injury of June 12, 1989. Iowa Code section 85.27. That claimant did not prove the reasonableness of the charges of the medical providers and, therefore, claimant is not entitled to recover these medical expenses. Anderson v. High Rise Construction Specialists, Inc., file number 850096 (App. Dec. 1990); McClellon v. Iowa Southern Utilities, file number 894090 (App. Dec. 1992); Schneider v. Prairie Contractors, Inc., file number 869747 (App. Dec. 1992). That claimant did prove the reasonableness of five round trips to Sioux Falls, South Dakota, and back and is entitled to $189 in medical mileage. Iowa Code section 85.27. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant one week of healing period benefits for the period from July 24, 1989 through July 30, 1989, and five point one four three (5.143) weeks of healing period benefits for the period from January 30, 1992 through March 6, 1992, a total of six point one four three (6.143) weeks of healing period benefits at the stipulated rate of two hundred seventy-one and 70/100 dollars ($271.70) per week in the total amount of one thousand six hundred sixty-nine and 05/100 dollars ($1,669.05) commencing on July 24, 1989, for one week and interrupted by the period when claimant worked, but Page 13 commencing again on January 30, 1992. That defendants pay to claimant twelve point five (12.5) weeks of permanent partial disability benefits at the stipulated rate of two hundred seventy-one and 70/100 dollars ($271.70) per week based upon a five (5) percent permanent impairment to the right arm in the total amount of three thousand three hundred ninety-six and 25/100 dollars ($3,396.25) commencing on March 7, 1992. That defendants are entitled to a credit for three (3) days of workers' compensation benefits paid to claimant prior to hearing which is computed at point four two nine (.429) weeks times the rate used at that time of two hundred sixty-two and 12/100 dollars ($262.12) in the total amount of one hundred twelve and 45/100 dollars ($112.45). That these benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants pay claimant medical mileage in the amount of one hundred eighty-nine dollars ($189). That the costs of this action are charged to defendants pursuant to Iowa Code section 86.40 and rule 343 IAC 4.33. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of September, 1992. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert J. Dull Attorney at Law 38 1st Ave NW Le Mars, Iowa 51031 Ms. Rita C. Grimm Mr. Thomas Plaza Attorneys at Law PO Box 3086 Sioux City, Iowa 51102 51108.50, 51401, 51402.40, 52209, 51802, 51803, 1402.60, 2501, 2700, 1806 Filed September 16, 1992 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JERRY BIEZUNS, : : Claimant, : : vs. : : File No. 924582 HARKER'S INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONAL UNION FIRE INSURANCE,: : Insurance Carrier, : Defendants. : ___________________________________________________________ 51108.50, 51401, 51402.40, 52209 It was determined that the injury was the cause of temporary and permanent disability based upon the testimony of claimant's family physician and also defendant's choice of two physicians. 51802 Claimant was awarded healing period benefits for the time off work. 51803 Claimant awarded five percent permanent impairment of the right arm based upon defendant's second physician and independent evaluator. There were several defects in the thirty-three percent rating of claimant's family physician. 1402.60, 2501, 2700 It was determined that claimant's medical expenses were caused by this injury and that the treatment of ulnar nerve surgery was reasonable but claimant could not be awarded his medical expenses because defendants disputed the reasonableness of the charges and claimant presented no evidence, other than the bills themselves, to prove that the charges were reasonable. Anderson, McClellon, and Schneider which sets agency policy clearly prohibited claimant's Page 2 entitlement to an award for these expenses. 1806 The evidence was clear and unequivocal that this injury was the primary cause of the surgery and permanent disability. Defendants submitted evidence that the subsequent employment contributed to the surgery and disability but no apportionment could be made could be made because defendants submitted no evidence of what proportion was attributable to the second job. Bearce, Tussing, and Becker.