Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ANNE MARIE VOGEL, File No. 925720 Claimant, A P P E A L vs. D E C I S I O N SECOND INJURY FUND OF IOWA, Defendant. ___________________________________________________________ STATEMENT OF THE CASE Defendant appeals from an arbitration decision awarding claimant 40 percent permanent partial disability benefits. The record on appeal consists of the transcript of the arbitration hearing, claimant's exhibits 1, 2 and 3, and defendant's exhibits A, B, C, D, E and F. Both parties filed briefs on appeal. ISSUES Defendant states the issues on appeal as: 1. The deputy industrial commissioner erred in finding that an injury confined to the fingers is compensable by the Second Injury Fund; and 2. The deputy industrial commissioner erred in finding that claimant's industrial disability was 40 percent. FINDINGS OF FACT The arbitration decision filed February 17, 1992, adequately and accurately reflects the pertinent findings and will not be (totally) reiterated here. The following additional findings are made, however. omical injury to claimant's right hand was physically located in her index and middle fingers. He then concluded that the evidence did not show any physiological injury in the metacarpus or carpus of claimant's right hand. The deputy then construed section 85.64 to find that a loss of use of fingers or thumb is in fact a loss of use of the hand. Those findings and that conclusion are not necessary in order to conclude that claimant had a loss of use in the hand under the facts presented. Physical Therapist Bower, in evaluating claimant, found that claimant was unable to flex the metacarpal joint of either her right index or right middle finger. In Simmons, the commissioner held that loss of flexion of the metacarpal or knuckle joint resulted in loss of hand motion such that the hand was impaired as a result of the injury. The rationale of Simmons is applicable to this claim and is adopted. It is expressly found and concluded that claimant's loss of flexion in the metacarpal joints in her right index and middle fingers is a condition that impairs claimant's motion in her right hand such that claimant has sustained a loss of use of the hand. Claimant's loss of use of the hand is a qualifying second member injury entitling claimant to benefits from the Second Injury Fund. WHEREFORE, the decision of the deputy is affirmed and modified. Page 3 ORDER THEREFORE, IT IS ORDERED: The Second Injury Fund of Iowa pay claimant seventy-four (74) weeks of compensation for permanent partial disability at the rate of one hundred twenty-one and 18/100 dollars ($121.18) per week payable as an accrued amount in a lump sum on the date of filing of this decision. Defendant pay costs of this appeal, including the costs of transcription of the arbitration hearing. Defendant file claim activity reports pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of April, 1993. ______________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies to: Mr. Harry Dahl Attorney at Law 974 73rd Street, Suite 16 Des Moines, IA 50312 Ms. Joanne Moeller Assistant Attorney General Tort Claims Division Hoover Bldg. Des Moines, IA 50319 Page 1 3202 Filed April 30, 1993 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ANNE MARIE VOGEL, File No. 925720 Claimant, A P P E A L vs. D E C I S I O N SECOND INJURY FUND OF IOWA, Defendant. ___________________________________________________________ 3202 Deputy affirmed and modified. Rationale of Simmons v. Black Clawson Hydrotile, Thirty-fourth Biennial Rep., Iowa Industrial Commissioner 313 (App. Decn. 1979), followed in finding that claimant's inability to flex the metacarpal joint on either her right index or her right middle finger resulted in impairment to the hand such that claimant had a loss of use of the hand which qualified as a second injury for purposes of entitlement to Second Injury Fund benefits. Page 1 before the iowa industrial commissioner ____________________________________________________________ : ANNE MARIE VOGEL, : : Claimant, : : vs. : File No. 925720 : PAMECO MAIL SERVICE, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : STATE FARM INSURANCE : COMPANIES, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration initially brought by Anne Marie Vogel against her employer and its insurance carrier as well as against the Second Injury Fund of Iowa. Vogel entered into an agreement for settlement with full commutation with the employer prior to hearing. Under that settlement, she was determined to have a 50 percent permanent partial disability of the right hand for which she was provided 90 weeks of compensation benefits. It is noted that, under section 85.34(2)(l), the loss of a hand provides an entitlement to 190 weeks of compensation. Fifty percent of that amount would be 95 weeks rather than 90 weeks as provided by the settlement which was approved by this agency. The agency file does not contain any explanation for the apparent inconsistency in the settlement process. The remaining claim to be determined by this decision is the claim against the Second Injury Fund of Iowa. The primary issue to be determined is the claimant's entitlement to permanent partial disability compensation from the Second Injury Fund of Iowa. An underlying issue is whether the injury and its permanent disability is limited to the claimant's fingers and, if so, whether that relieves the Second Injury Fund from liability. A second issue is whether the Second Injury Fund receives credit for the full 90 weeks of permanent partial disability compensation paid by the employer, even if the compensable value of the Page 2 scheduled injury is determined to be less than 90 weeks. The case was heard at Des Moines, Iowa, on December 2, 1991. The evidence in the proceeding consists of the testimony from Anne Marie Vogel and Ada Jackson. The record also contains claimant's exhibits 1, 2 and 3 and defendants' exhibits A, B, C, D, E and F. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. Anne Marie Vogel is a 34-year-old woman who is a 1976 high school graduate. She has subsequently taken classes in math, English and secretarial skills through the area community college. Anne reported that, prior to the injury, she could type up to 100 words per minute and was also quite fast using a calculator. Anne's work history is quite varied. While in high school, she performed repair and maintenance work on apartments operated by her father. The work included activities such as painting, drywall and concrete work. She has more recently worked as an apartment complex manager. While still in high school, Anne began a several-year term of employment with the South Side Shopper newspaper. She performed a variety of functions including warehouse work, labeling and finally as a camera technician. She developed film and performed ad layout, paste-up and composition for the shopper publication. Anne has also held a number of other jobs including microfilming and fast food work. Anne's physical ailments include anxiety attacks which have afflicted her since high school. They appear to be reasonably well controlled by Zanex medication. A part of the anxiety disorder reportedly manifests itself by making Anne unable to function adequately in stressful situations. Anne severely lacerated her left foot while vacationing in Florida in approximately 1980. She has subsequently undergone a series of surgical treatments for the foot with results that are far less than optimal (claimant's exhibit 1, pages 35-53). As indicated by physical therapist Thomas W. Bower, she is unable to actively to move her big, second and third toes. The big toe overlaps the second causing a loss of balance. The foot is sensitive to cold. Bower rated her as having a 24 percent permanent impairment of the left foot (claimant's exhibit 1, pages 25-27). After completing a secretarial course in approximately 1986, Anne commenced employment with Pameco. Initially, she worked in data entry. After leaving Iowa to manage apartments in Arizona, she returned to Pameco and worked in the warehouse area. She reported difficulty with her foot, but was able to accommodate and perform her work. Within that same time frame, she assisted her boyfriend in a masonry business on weekends. Page 3 On July 20, 1989, Anne was operating a labeling machine. While cleaning it, another worker restarted the machine causing Anne's right hand to become caught in the machine. She related that her hand was pulled into the machine up to the first knuckles of two fingers and that a bit of her thumb was taken into the machine. She was seen at the Mercy Hospital emergency room and diagnosed as having a laceration of the index finger with a crush and fracture of the middle finger of her right hand. A one-half centimeter laceration was noted on the distal phalanx on the palmar aspect of the right index finger (claimant's exhibit 1, page 16). Accordingly to neurologist Steven R. Adelman, D.O., Anne injured the digital nerve in her index finger (claimant's exhibit 1, page 9). In early 1988, she fractured her right thumb while playing softball (defendants' exhibit D, page 21). Anne testified at hearing that, as a result of her hand injury, she is unable to perform activities such as data entry, camera work or apartment maintenance. She feels that, due to the condition of her foot, she should not play sports and should stay off it as much as possible. She requires special hand-made shoes. She takes anti-inflammatory medication whenever her foot swells, an event which is not infrequent. She is able to bend her right thumb only a little. She is unable to bend her index finger. The middle finger can bend only slightly and has little feeling. The index finger has no feeling. At times, pain will shoot up her right arm if she touches either of the injured fingers in the wrong manner. Des Moines orthopaedic surgeon Sinesio Misol, M.D., rated the impairment of Anne's right hand at seven percent in a report dated October 13, 1989. Physical therapist Bower has rated the right hand at 38 percent. The impairment ratings arrived at by Bower for Anne's left foot and right hand were based upon extensive objective testing. Those ratings are found to be correct. Bower's tests and impairment rating results are commonly relied upon by orthopaedic surgeons. His ratings are strongly corroborated by the settlement entered into by the parties for the right hand injury. For these reasons, the rating from Dr. Misol is rejected and that made by Bower is accepted. At the present time, Anne is working as a maintenance and cleaning person at a Des Moines bar. Her hours have been reduced to where she currently works only one day per week. She is paid at the rate of $5.00 per hour. Earning at the rate of approximately $5.00 per hour is consistent with the hourly rates claimant earned prior to the time she injured her right hand. Recently, Anne has received treatment for her hand from Jose V. G. Angel, M.D. Dr. Angel has found Anne to exhibit slightly diminished strength and function with her right hand. He stated that she is unable to perform rapid, repetitive activities requiring either strength or dexterity. He feels that her deficit is permanent and is due to a combination of traumatic arthritis and neural damage. He feels that she should be able to perform light Page 4 activities with her right hand, including moderate lifting. He stated that it is unlikely she will have sufficient dexterity to perform typing, note taking or other repetitive activities that require flexion and extension of her thumb and index finger (claimant's exhibit 1, page 1). The recommendations from Dr. Angel are not directly controverted. They appear consistent with the impairment rating found by therapist Bower and are accepted as being correct. Anne underwent a preliminary evaluation through the Iowa Division of Vocational Rehabilitation. She was characterized as being severely handicapped on account of her right hand and anxiety disorder. The records do not reflect that the vocational rehabilitation people were aware of the problem with Anne's left foot (defendants' exhibit C, page 4). It was recommended that Anne receive a thorough evaluation at the Iowa State Vocational Rehabilitation facility, but she failed to respond to repeated communications (defendants' exhibit C, pages 6 and 7). Anne has typically worked to the satisfaction of her former employers (defendants' exhibit E). It is noted that her resume which is found in defendants' exhibit E contains grammatical errors. This indicates that her written communication skills are not particularly strong. Anne therefore presents herself as a 34-year-old woman who is unable to perform many of her past employments due to the condition of her right hand as well as the condition of her left foot. She is further limited by her anxiety attack problem. conclusions of law When the injury is a scheduled injury such as the one in this case, Code section 85.64 entitles the claimant to recover for all disability that was proximately caused by the July 20, 1988, injury. Second Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989); Second Injury Fund v. Mich Coal Co., 274 N.W.2d 300 (Iowa 1979). The first issue to be addressed is whether the injury is one which triggers Second Injury Fund liability. It is argued that, if the injury is limited to the fingers and does not extend into the metacarpal bones in the palm of the hand, the situation is one which does not subject the Fund to liability. Fellow deputy commissioners have so ruled as shown in the cases cited by the Fund. The pertinent members of the body mentioned in section 85.64 include the hand, arm, foot, leg and eye. There is no mention of fingers or toes. A close review of the record of this case shows that the left foot injury was not limited anatomically to the toes. It clearly is one which can be a basis for Second Injury Fund liability. Claimant has complaints involving her thumb, but those complaints are not shown to be a result of the 1988 work place injury. They appear to be more likely related to the softball injury which fractured the thumb. The anatomical injury to claimant's right hand is found to be physically located in her index and middle Page 5 fingers. The evidence does not show any physiological injury in the metacarpus or carpus of her right hand. This finding triggers a need to perform statutory construction of section 85.64. It is generally presumed that statutory words are used in their ordinary and usual sense with the meaning commonly attributed to them. American Home Products Corp. v. Iowa State Bd. of Tax Review, 302 N.W.2d 140 (Iowa 1981). One must look to the object to be accomplished, the mischief to be remedied, or the purpose to be served, and place on the statute a reasonable or liberal construction which will best effect, rather than defeat, the legislature's purpose. City of Mason City v. Public Employment Relations Bd., 316 N.W.2d 851, 854 (Iowa 1982). The policy is to liberally construe workers' compensation statutes in favor of the worker. Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 1981); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 188 (Iowa 1980). The Workers' Compensation Act is to be construed to provide benefits to all who can fairly be brought within its coverage. Usgaard v. Silver Crest Golf Club, 256 Iowa 453, 459, 127 N.W.2d 636, 639 (1964). Its beneficent purpose is not to be defeated by reading something into it that is not there. Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979). Reference to Webster's New World Dictionary, Third College Edition (1988), at page 610, defines the hand as, "The part of the human body attached to the end of the forearm, including the wrist, palm, fingers and thumb." Black's Law Dictionary, Sixth Edition (1990), at page 715, states that the hand includes the digits or fingers. Stedman's Medical Dictionary, Twenty-fourth Edition (1982), at page 833, likewise includes the fingers as a part of the hand. Gray's Anatomy, (1974), at page 158, states, "The skeleton of the Hand is subdivided into three segments--the Carpus or wrist-bones; the Metacarpus or bones of the palm; and the Phalanges or bones of the digits." It is clear that all references agree that the fingers are in fact a part of the hand. Stedman's Medical Dictionary defines finger as ". . . one of the digits of the hand." Webster's New World Dictionary, at page 507, defines finger as ". . . any of the five jointed parts projecting from the palm of the hand." The references consistently consider fingers to be an integral part of a hand. The scheduled member system of section 85.34 provides separate compensation benefits for losses of specified fingers and the thumb. It likewise provides specified benefits when the loss is to the hand. Under that scheduled system, the loss of all fingers and the thumb provides 170 weeks of compensation while the complete loss of the hand provides 190 weeks of compensation, an amount only slightly more than what would be payable if all fingers were lost. Under section 85.34(2), when the injury only affects a finger, it is compensated as a loss of the finger, rather than as a loss of part of the hand. Section 85.34(2) does not statutorily define a hand as something which has no Page 6 fingers. It simply provides that, when the injury to the hand affects only fingers, the employer's liability is to be determined according to which finger or fingers were disabled rather than according to the equivalent disability of the hand. It is noted that Dr. Misol and therapist Bower rated the disability as a disability of the hand, even though ratings can be made of fingers and the ratings appear to have been based solely on the impairment of the fingers. Nevertheless, they both apparently consider that disability of fingers is a disability of the hand. When one envisions what is meant by the term "hand," the visual image which appears includes the fingers and thumb, not merely the palm. It is therefore concluded that, for purposes of Code section 85.64, the term "hand" includes the fingers and thumb. A person's hand functions primarily through the fingers and thumb. Any loss of use of the fingers or thumb is in fact a loss of use of the hand. For purposes of comparison, the term "arm" is also used in Code section 85.34. References to those same texts, namely Webster's New World Dictionary, at page 74, Stedman's at page 109, and Gray's at page 144, fail to include the hand in the definitions of "arm" that are found. This is a further indication that, while the fingers are an integral part of the hand for purposes of construction of this statute, the hand is not included in the proper definition of the arm. It is therefore concluded that this case is one in which liability of the Second Injury Fund exists. When determining Second Injury Fund liability, the total disability is evaluated industrially. The employee is evaluated taking into account all disabilities which exist. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). 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 Page 7 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. Anne has lost the ability to perform the clerical work for which she was trained and for which she was apparently well suited. The condition of her foot limited her in some occupations. Most individuals, however, make their living more through the use of their hands than they do through the use of their feet. Many jobs are performed from a seated position but involve extensive use of the hands. Likewise, many jobs require use of the hands but do not require repetitive hand use. Anne's anxiety problem is difficult to assess in terms of employability, but it does not appear as though it was significantly limiting to her prior to the 1988 injury. Most of the work for which she is trained and suited does not appear to be the type of high stress work which would be affected by the anxiety problem. While Anne is working at essentially the same hourly rate of pay as she had experienced prior to this most recent injury, she has experienced a significant loss of access to jobs for which she was trained and well suited prior to this most recent injury. When all pertinent factors are considered, it is determined that Anne Marie Vogel has a 40 percent permanent partial disability as a result of the combination of her injuries. This tentatively entitles her to 200 weeks of permanent partial disability compensation. The compensable value of the preexisting scheduled losses must be determined and deducted. A 24 percent impairment of the left foot carries a compensable value of 36 weeks. The proper amount to be deducted for the hand injury is not as readily ascertained. The parties settled the case based upon a 50 percent impairment rating which would have provided 95 weeks of compensation. Claimant was paid only 90 weeks of compensation under the settlement documents. On the other hand, the highest rating of permanent impairment, the one found to be correct, was 38 percent, an amount which provides a compensable value of 72.2 weeks. The agency has ruled that settlements entered into between the employee and the employer are not determinative in cases involving the Fund since the Fund is not a party to those settlements. Northrup v. Tama Meat Packing, File No. 724196 (App. Decn., March 19, 1990). A literal reading of Iowa Code section 85.38 could be used to deny all credits; however, that section makes reference to the employer not being entitled Page 8 to receive credit for payments from other sources. It does not disqualify the Second Injury Fund. Double recoveries are normally avoided. Schonberger v. Roberts, 456 N.W.2d 201, 202 (Iowa 1990); Krohn v. State, 420 N.W.2d 463 (Iowa 1988); Caylor v. Employer's Mutual Casualty Co., 337 N.W.2d 890 (Iowa App. 1983); Wilson Foods Corp. v. Cherry, 315 N.W.2d 756 (Iowa 1982). It is concluded that the pro tanto credit rule should be applied in this case. It is the rule which gives the liable party, in this case the Fund, credit for the amount of settlements paid by others which exceeds the other's actual share of the entire liability, in this case the employer, against whom the claim has been made. Tratchel v. Essex Group, Inc., 452 N.W.2d 171, 181 (Iowa 1990). Application of this rule therefore makes the Second Injury Fund entitled to full credit for the 90 weeks of benefits paid by the employer. It is not entitled to 95 weeks of credit since the settlement is not binding on the fund. The evidence in the case shows the correct impairment to be only 38 percent of the hand rather than 50 percent which was stated in the settlement documents between the claimant and the employer. The Second Injury Fund receives credit for the excess amount paid by the employer. The compensable value which is to be deducted from the 200 week entitlement is therefore 126 weeks. The liability of the Fund is therefore 74 weeks. More than 74 weeks have elapsed since the date that weekly benefits were last payable by the employer. Under section 85.64, the payments from the Fund are to be commenced ". . . after the expiration of the full period provided by law for the payments thereof by the employer, . . . ." This means that, if paid promptly, the Fund should have commenced weekly payments at the time the employer's legal obligation for weekly payments ceased. Under any interpretation of the record, that occurred more than 74 weeks ago. The Second Injury Fund is not liable for payment of interest. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990). order IT IS THEREFORE ORDERED that the Second Injury Fund of Iowa pay Anne Marie Vogel seventy-four (74) weeks of compensation for permanent partial disability at the stipulated rate of one hundred twenty-one and 18/100 dollars ($121.18) per week payable in a lump sum effective on the date of entry of this decision. The total amount thereof is eight thousand nine hundred sixty-seven and 32/100 dollars ($8,967.32). IT IS FURTHER ORDERED that the costs of this proceeding are assessed against the Second Injury Fund of Iowa pursuant to rule 343 IAC 4.33. IT IS FURTHER ORDERED that the Second Injury Fund of Iowa file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1992. Page 9 ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry W. Dahl Attorney at Law 974 73rd Street Suite 16 Des Moines, Iowa 50312 Ms. Judith Ann Higgs Attorney at Law 200 Home Federal Building P.O. Box 3086 Sioux City, Iowa 51102 Ms. Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 1704; 3202; 3203 Filed February 17, 1992 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : ANNE MARIE VOGEL, : : Claimant, : : vs. : File No. 925720 : PAMECO MAIL SERVICE, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : STATE FARM INSURANCE : COMPANIES, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ____________________________________________________________ 1704; 3202; 3203 It was held that, for purposes of section 85.64, fingers are an integral part of the hand and that, even though the injury and disability may be limited to the fingers, such nevertheless constitutes a loss of use of the hand which triggers Second Injury Fund liability. Cites Webster, Stedman, Black and Gray. Where employer settled case for an amount greater than the actual scheduled impairment, the Second Injury Fund was entitled to credit for the amount by which the employer's payments exceeded the actual compensable value of the most recent scheduled injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ EUGENE M. ANDERSON, Claimant, vs. File Nos. 926111/974256 MAYTAG COMPANY, A P P E A L Employer, D E C I S I O N and EMPLOYERS MUTUAL 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 January 27, 1994 is affirmed and is adopted as the final agency action in this case with the following additional analysis: Claimant's petition was timely filed under Iowa Code section 85.26(1). Under the discovery rule, a claimant's date of injury is that point in time when the claimant knows, or should know, that the injury he or she has suffered is both serious and work related. Where a claimant has a prior, nonwork-related condition that would lead a reasonable person to believe the nonwork-related condition was the source of the present symptoms, it is reasonable that the claimant would not be held to know his or her condition was work related until receiving medical advice that the present condition was caused by work conditions and not the prior nonwork-condition. Meinhardt, Appeal Decision, February 26, 1993 (#916721). Here, claimant had a prior arthritic condition that may have accounted for his knee pain. Claimant testified that he felt pain on May 3, 1989, but could not identify a specific incident that might have caused the pain. Claimant's pain was in a different knee than the knee in which he had previously experienced arthritic pain, and claimant testified that the pain was of a different type. Although this might under other scenarios have put claimant on notice that his knee pain was not due to his arthritis, claimant was immediately given medical advice by the defendants' physician assistant that he was not injured. Shortly thereafter, Dr. McBride specifically Page 2 advised claimant his pain was due to his arthritis and that no injury had occurred. It was only when claimant was referred to Dr. Bashara, a specialist in orthopedic surgery, that claimant was given medical advice that his knee condition was not due to his arthritis, but rather due to work activity. This occurred on May 8, 1989. Under the discovery rule, claimant was not aware that a work injury occurred until May 8, 1989. Claimant's petitions filed on May 7, 1991 were within two years of this date and therefore comply with Iowa Code section 85.26(1). Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of July, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Steven Shindler Mr. Brent Cashatt Attorneys at Law 1000 Equitable Bldg. Des Moines, Iowa 50309-3715 Mr. Terry L. Monson Mr. Michael J. Eason Attorneys at Law 100 Court Ave., Ste 600 Des Moines, Iowa 50309 5-1803; 2402 Filed July 27, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ EUGENE M. ANDERSON, Claimant, vs. File Nos. 926111/974256 MAYTAG COMPANY, A P P E A L Employer, D E C I S I O N and EMPLOYERS MUTUAL COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ 5-1803 Nonprecedential, extent of disability case. 2402 Claimant had preexisting arthritis in his knees. His work injury involved an injury to the knee. Although claimant testified the pain was different than before and in a different knee, he was told by the employer's physician and by another doctor that his pain was due to his arthritis. A few days later, he was told by a third physician that he had suffered a work injury. Relying on Meinhardt, Appeal Decision, February 26, 1993 (#916721), held on appeal that where a claimant suffers a prior condition that would reasonably account for his current pain or impairment, the statute of limitations did not start to run under the discovery rule until claimant was given medical advice that his condition was the result of a new work injury and not the preexisting condition. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : EUGENE M. ANDERSON, : : Claimant, : : vs. : File Nos. 926111 : 974256 MAYTAG COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a consolidated proceeding in arbitration brought by Eugene M. Anderson, claimant, against Maytag Company, employer, hereinafter referred to as Maytag, and Employers Mutual Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of alleged injuries on May 3, 1989 and May 8, 1989. On October 18, 1993, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a hearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the hearing report, the parties have stipulated to the following matters: 1. An employee-employer relationship existed between claimant and defendant employer at the time of the alleged injury. 2. Claimant is seeking temporary total or healing period benefits only from January 9, 1991 through March 17, 1991 and defendants agree that he was not working at this time. 3. If the injury is found to have caused permanent disability, the type of disability is a scheduled member disability to the leg. Page 2 4. If permanent partial disability benefits are awarded, they shall begin as of March 18, 1991. 5. At the time of injury, claimant's gross rate of weekly compensation was $536.00; he was married; and, he was entitled to 3 exemptions. Therefore, claimant's weekly rate of compensation is $333.10, according to the industrial commissioner's published rate booklet for this injury. 6. It was stipulated that the providers of the requested medical expenses would testify as to their reasonableness and defendants are not offering contrary evidence. The medical bills submitted by claimant at the hearing are causally connected to the left leg condition upon which the claim herein is based but that the issue of their causal connection to a work injury remains an issue to be decided herein. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment; II. Whether or not the claim was timely filed under Iowa Code section 85.26 or whether there was timely notice under Iowa Code section 85.23; III. The extent of claimant's entitlement to disability benefits; and, IV. The extent of claimant's entitlement to medical benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants placed claimant's credibility at issue during cross examination as to the nature and extent of the injury and disability. From his demeanor while testifying, claimant is found credible. Claimant worked for Maytag as an assembler from August 3, 1964 until May 28, 1992 at which time he took early retirement due to knee and heart problems. On or about May 3, 1989, claimant injured his left leg while working at Maytag. This injury arose out of and in the course of his employment. The injury consisted of a torn meniscus in Page 3 the left knee. A sudden onset of pain occurred while twisting his knee in his job duties at some time during the day. This was a specific traumatic event but claimant was not performing anything specific at the time and had no idea at the time that this injury occurred. Claimant had prior right knee pain due to preexisting arthritis unrelated to his job and claimant believed at the time this pain was only arthritis. Claimant's belief that no injury occurred was in part based upon the company physician assistant who concluded that there was no injury and gave no diagnosis. Claimant was referred to Donald F. McBride, M.D., for evaluation and Dr. McBride concurred with claimant and thought the problem was arthritis with no specific injury. Claimant was obese and this condition contributed to the conclusion by claimant and his physicians at the time that there was no compensable injury. Dr. McBride referred claimant to a specialist, Jerome G. Bashara, M.D., an orthopedic surgeon. During his evaluation and testing on May 8, 1989, Dr. Bashara concluded that claimant's symptoms were not only arthritis but the result of a work injury resulting in a torn meniscus and he recommended further testing. The insurance carrier then transferred claimant's care to another orthopedic surgeon, Scott B. Neff, D.O. Dr. Neff disagreed with Dr. Bashara and indicated that claimant's problems were not the result of injury, only degenerative arthritis. Defendants then denied the compensability of the claim. Over the next two years claimant continued to have difficulties and eventually returned to Dr Bashara. On January 9, 1991, Dr Bashara after confirming his original diagnosis of meniscus tear surgically repaired the injury. Claimant returned to work on March 19, 1991. It is found that the original physician's assistant and Dr. McBride misdiagnosed the condition. This misdiagnosis lead claimant to believe that there was no injury or compensable claim until May 8, 1991. It is specifically found that claimant was not aware of the presence of an injury or its probable compensable nature until May 8, 1989 when he was first informed of the injury by Dr. Bashara. It is further found that claimant filed his petition for benefits as a result of this work injury on May 3, 1991, within two years of the date claimant first became aware of the injury and its probable compensable nature. It is also specifically found that defendants had actual knowledge of the potential compensability of this claim within 90 days of May 3, 1989. The work injury of May 3, 1989 is found to be a cause of a 19 percent permanent impairment to the leg. This finding is based upon the treating physician, Dr Bashara, the only physician to correctly diagnose claimant's problems and the only physician to rate claimant's impairment. Page 4 With reference to the reasonableness of the requested medical expenses in the hearing report, the parties stipulated that the providers would testify as to their reasonableness and defendants were not offering contrary evidence. Therefore, it is found that the expenses are reasonable. CONCLUSIONS OF LAW I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury arising out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See, generally, Cedar Rapids, Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe V. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments. A work-connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited therein. In the case sub judice, there is little dispute in the record that the incident of the first onset of pain occurred on May 3, 1989. II. Claimant must establish by a preponderance of the evidence that he filed his claim with this agency within the prescribed period of time allowed under Iowa Code section 85.26. Such a showing is necessary to demonstrate this agency's subject matter jurisdiction over the controversy and a condition precedent to filing suit for compensation benefits under chapters 85, 85A, 85B and 86 of the Iowa Code. Mousel v Bituminous Material and Supply Co., 169 N.W.2d 763 (Iowa 1969). Lack of subject matter jurisdiction may be raised in any manner at any time during the course of legal proceedings. Qualley v Chrysler Credit Corp, 261 N.W.2d 466 (Iowa 1978). An administrative or judicial tribunal may raise the issue on its own motion at any time. see Uchtorff v Dahlin 363 N.W.2d 264 (Iowa 1985). However, a statute of limitations defense may be waived, but defendant must have intent to do so. Carter v Continental Telephone Company, 373 N.W.2d 524, 526 (Iowa 1985). Generally, claims for benefits must be filed within two years of the date of injury or within three years of the date of a late payment of weekly benefits. There is no limitation on a claim for medical benefits under Iowa Code section 85.27 if no denial of liability is filed with this agency or if no notice of such denial is served upon an injured worker within six months after the commencement of payment of weekly benefits. An injured employee is permitted to file a workers' compensation claim after the prescribed periods in Iowa Code section 85.26 under the so called "discovery rule." In Orr v Lewis Central School District, 298 N.W.2d 256 (Iowa 1980), the Page 5 Iowa Supreme Court held that the two year period to file a claim does not start to run until the worker discovers or in the exercise of reasonable diligence should have discovered the nature, seriousness and probable compensable character of the injury. An employee may provide information to an employer which would satisfy the actual knowledge notice requirement of Iowa Code section 85.23 without at the same time nullifying his right to the benefits of the discovery rule. Because the discovery rule is based upon entirely different purposes and reasoning than the notice requirement, the same set of facts may provide for a different result under sections 85.23 and 85.26. Dillinger v City of Sioux City, 368 N.W.2d 176, 180 (Iowa 1985). At a time when the employee did not know the probable compensable nature of his injury, allowing him to later utilize the discovery rule to delay the commencement of the section 85.26 limitation period, the employer may have actual knowledge under section 85.23 of the reasonable possibility of a claim. Id. Defendants have also raised the issue of lack of notice of the work injury within 90 days from the date of the occurrence of the injury under Iowa Code section 85.23. Although an employer may have actual knowledge of an injury, the actual knowledge requirement under Iowa code section 85.23 is not satisfied unless the employer has information putting him on notice that the injury may be work-related. Robinson v Dept of Transportation, 296 N.W.2d 809, 811 (Iowa 1980). The time period for notice of claim does not begin to run until claimant, as a reasonable man, should recognize the nature, seriousness and probable compensable character of his injury or disease. Id. An employee may provide information to an employer at the time of injury which would satisfy the actual knowledge notice requirement under Iowa Code section 85.23 without nullifying his right to the benefits under the discovery rule. Dillinger, 368 N.W.2d 176, 180 (Iowa 1985). The purpose of the notice requirement is to alert the employer to the possibility of a claim so that an investigation can be made while the information is fresh. Id. Although claimant may have reported an injury when it occurred, such knowledge is not necessarily knowledge of its nature, seriousness and probable compensable character. In the case sub judice, claimant was found specifically not to have had knowledge of the injury or compensability of the claim until May 8, 1989. As a result of this finding, the claim is timely under Iowa Code section 85.26(2) and there was timely notice under Iowa Code section 85.23. Defendants further contend that the delay in service of the original notice of the claims herein was untimely. Defendants argue that another deputy commissioner lacked jurisdiction to reinstate the petitions early dismissed by mistake of the agency. The undersigned deputy lacks jurisdiction Page 6 to review the actions of another deputy. Untimeliness of service may have something to do with when a case is ripe for hearing, but it is not a defense under our statue of limitation. There was no question that the original notice and petition herein was filed on May 8, 1989. Subsection 3 of Iowa Code 85.26 specifically states that filing the petition and original notice is the only act constituting "commencement" for purposes of this section. III. A permanent partial disability is either scheduled or unscheduled. A scheduled disability is evaluated by the functional method. The industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v Delong's Sportswear 332 N.W.2d 886, 997 (Iowa 1983). When the result of an injury is loss to a scheduled member, the compensation payable is limited to that set forth in the appropriate subdivision of Iowa Code section 85.34(2). Barton v. Nevada Poultry Company, 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss of use" of a member is equivalent to "loss" of the member. Moses v. National Union C.M. Co., 184 N.W. 746 (1922). Pursuant to Code section 85.34(2)(u), the industrial commissioner may equitably prorate compensation payable in those cases where the loss is something less than that provided for in the schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969). In the case sub judice, it was found that claimant suffered a 19 percent permanent loss of use of his leg. Based on such a finding, claimant is entitled to 41.8 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(o) which is 19 percent of 220 weeks, the maximum allowable weeks of disability for an injury to the leg in that subsection. Claimant's entitlement to permanent partial disability also entitles him to weekly benefits for healing period under Iowa Code section 85.34 from the date of injury until claimant returns to work; until claimant is medically capable of returning to substantially similar work he was performing at the time of injury; or, until it is indicated that significant improvement from the injury is not anticipated, whichever occurs first. It was found that claimant was off work from January 9, 1991 through March 17, 1991 due to the work injury. Healing period benefits will be awarded accordingly. IV. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. Claimant is entitled to an order of reimbursement if he has paid those expenses. Otherwise, claimant is entitled only to an order directing the responsible defendants to make such payments directly to the provider. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988) In the case at bar, the parties stipulated that the Page 7 requested medical expenses were related to the alleged leg condition. Given the finding that the expenses are reasonable, they will all be awarded. ORDER 1. The claim set for in file no. 974256 is dismissed. Defendants are ordered to pay the costs of this claim. 2. The following is ordered in claim no 926111: a. Defendants shall pay to claimant forty-one point eight (41.8) weeks of permanent partial disability benefits at a rate of three hundred thirty-three and 10/100 dollars ($333.10) per week from March 18, 1991. b. Defendants shall pay to claimant temporary total disability/healing period benefits from January 9, 1991 through March 17, 1991, at the rate of three hundred thirty-three and 10/100 dollars ($333.10) per week. c. Defendants shall pay the medical expenses listed in the prehearing report. Claimant shall be reimbursed for any of these expenses paid by him. Otherwise, defendants shall pay the provider directly along with any lawful late payment penalties imposed upon the account by the provider. d. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. e. Defendants shall receive credit for previous payments of benefits under a non-occupational group insurance plan, if applicable and appropriate under Iowa Code section 85.38(2), less any tax deductions from those payments. f. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. g. Defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. h. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this _____ day of January, 1994. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Page 8 Copies to: Mr Steven Shindler Mr Brent Cashatt Attorneys at Law 1000 Equitable Bldg Des Moines IA 50309-3715 Mr Terry L Monson Mr Michael J Eason Attorneys at Law 100 Court Ave Ste 600 Des Moines IA 50309 5-1803 Filed January 27, 1994 Larry P. Walshire BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : EUGENE M. ANDERSON, : : Claimant, : : vs. : File Nos. 926111 : 974256 MAYTAG COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Nonprecedential, extent of disability case. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JOHN C. LEMKE, : : Claimant, : : vs. : : File No. 926134 UNITED PARCEL SERVICE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by John Lemke as a result of an injury to his right foot or leg which occurred on August 2, 1989. Defendants admitted compensability for the injury, paid weekly benefits and paid medical expenses. The case was heard and fully submitted at Davenport, Iowa, on March 8, 1991. The record in the proceeding consists of joint exhibits A through D and testimony from claimant. issues The issues presented for determination are as follows: 1. Claimant's entitlement to permanent partial disability, and 2. Claimant's rate of weekly compensation. findings of fact Having considered all the evidence received the following findings of fact are made: Claimant injured his right foot while at work for employer on August 2, 1989. He incurred lost time as a result of the injury from August 3, 1989 through September 13, 1989, according to the parties stipulation. At the time of the injury claimant had only worked four days for employer. Claimant testified that he was hired by employer as a part-time employee to work year round for 15 hours per week at the rate of $8 per hour. Claimant stated that he had just Page 2 graduated from high school and the employment for United Parcel Service (UPS) was his first job. Claimant was to work part-time while attending college classes. Defendants paid claimant his weekly benefits at the rate of 96 cents per week alleging that his rate should be based upon the yearly earnings divided by 52 pursuant to Iowa Code section 85.36(10). Iowa Code section 85.36(7) states that if an employee has been employed for less than 13 weeks prior to the injury the wage should be calculated based upon what the employee would have earned had he been so employed for the full 13 weeks. Claimant's testimony that he was hired to work 15 hours per week year round was not refuted. In this matter, defendants should have calculated the rate under Iowa Code section 85.36(7). It is found that had claimant worked the full 13 weeks preceding the injury he would have averaged 15-hour work weeks. It is found that claimant's gross weekly earnings in this matter amounts to $120 per week which results in a weekly benefit rate of $80.40 with the claimant as single and entitled to one exemption. Claimant also raised the issue of permanent disability. John E. Sinning, Jr., M.D., was of the opinion that no permanent impairment resulted from the injury (exhibit B, page 3). No other evidence of permanent disability was offered. It is found that claimant has failed to prove by a preponderance of the evidence that the injury of August 2, 1989, was the cause of permanent disability. conclusions of law The basis of compensation shall be the weekly earnings of the injured employee at the time of the injury. Weekly earnings means gross salary, wages, or earnings of an employee to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee's employer for the work or employment for which the employee was employed, computed or determined as follows and then rounded to the nearest dollar: ... 6. In the case of an employee who is paid on a daily, or hourly basis, or by the output of the employee, the weekly earnings shall be computed by dividing by thirteen the earnings, not including overtime or premium pay, of said employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury. (Iowa Code section 85.36) In the case of an employee who has been in the employ of the employer less than thirteen calendar weeks immediately preceding the injury, the employee's weekly earnings shall be computed under subsection 6, taking the earnings, not including overtime or premium pay, for such purpose to be the amount the employee Page 3 would have earned had the employee been so employed by the employer the full thirteen calendar weeks immediately preceding the injury and had worked, when work was available to other employees in a similar occupation. [Iowa Code section 85.36(7)] Claimant has proven by the preponderance of the evidence that his weekly benefit rate in this case is $80.40. The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Claimant has failed to prove by a preponderance of the evidence that the injury of August 2, 1989, resulted in permanent disability to his right foot or leg. order IT IS THEREFORE, ORDERED: Defendants are to pay claimant temporary total disability benefits at the rate of eighty and 40/100 dollars ($80.40) for the period August 3, 1989 through September 13, 1989. It is further ordered that defendants shall receive credit for benefits previously paid. It is further ordered that all accrued benefits are to be paid in a lump sum. It is further ordered that interest will accrue pursuant to Iowa Code section 85.30. It is further ordered that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. It is further ordered that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of April, 1991. ______________________________ MARLON D. MORMANN DEPUTY INDUSTRIAL COMMISSIONER Page 4 Copies to: Mr. James Hoffman Attorney at Law PO Box 1087 Middle Road Keokuk, Iowa 52632-1087 Mr. Greg Egbers Attorney at Law 600 Union Arcade Bldg. 111 E 3rd St Davenport, Iowa 52801-1596 Page 1 51803 3000 3002 3003 Filed April 1, 1991 Marlon D. Mormann before the iowa industrial commissioner ____________________________________________________________ : JOHN C. LEMKE, : : Claimant, : : vs. : : File No. 926134 UNITED PARCEL SERVICE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51803 Claimant offered no medical evidence concerning permanent disability. No permanent partial disability awarded. 53000 53002 53003 Claimant was injured after four hours on his first day of work at a part-time job. Defendants calculated rate according to 52 weeks of earnings which resulted in payment of 96 cents per week. Testimony that claimant was hired to work 15 hours per week year round was not refuted. Claimant's wage calculated under 85.36(7) in that had claimant worked the full 13 weeks prior he would have averaged 15 hours per week. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RICHARD SCHRAMM, Claimant, File No. 926166 vs. A P P E A L FDL FOODS, INC., D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed September 9, 1991 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of July, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Nick J. Avgerinos Attorney at Law 135 S LaSalle St., Ste 1527 Chicago, IL 60603 Mr. James M. Heckmann Mr. Stuart G. Hoover Attorneys at Law One Cycare Plaza, Ste 216 Dubuque, IA 52001 9998 Filed July 10, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RICHARD SCHRAMM, Claimant, File No. 926166 vs. A P P E A L FDL FOODS, INC., D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed September 9, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RICHARD SCHRAMM, : : File No. 926166 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N FDL FOODS, INC., : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Richard Schramm, claimant, against FDL Foods, Inc., employer (hereinafter referred to as FDL), a self-insured defendant, for workers' compensation benefits as a result of an alleged injury on August 16, 1989. On August 15, 1991, a hearing was held on claimant's petition and the matter was consid ered fully submitted at the close of this hearing. The parties have submitted a prehearing report of con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the prehearing report, the parties have stipulated to the following matters: 1. An employee-employer relationship existed between claimant and FDL at the time of the alleged injury. 2. Claimant is seeking temporary total disability or healing period benefits from August 17, 1989 through March 24, 1991, except for a few days in which he worked a total of six hours. 3. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $260.42. 4. Claimant has been paid 15 6/7 weeks of compensa tion. issues The parties submitted the following issues for determi nation in this proceeding: Page 2 I. Whether claimant received an injury arising out of and in the course of employment; II. The extent of claimant's entitlement to disabil ity benefits; and, III. The extent of claimant's entitlement to medical benefits. findings of fact Having heard the testimony and considered all the evi dence, the deputy industrial commissioner finds as follows: Claimant, age 44, worked for FDL from 1987 until his injury of August 16, 1989. After that time, claimant attempted to return to work four times but unsuccessfully. Claimant remains unemployed at the present time. Claimant's job at FDL was that of a laborer in a meat packing plant. Claimant was called a floater or a person who fills in as needed. At the time of the alleged injury, claimant was assigned to hanging hams. This job required placing hams on moveable hangers attached to overhead rails called "trees." Claimant was required after hanging the hams on these trees to push the trees along the overhead rail within the plant. On or about August 16, 1989, claimant injured his low back at FDL while hanging and pushing hams. The back strain and subsequent occurrence of pain while working at this time did not appear to be hotly contested during the hearing. The fighting issue was the causal connection and legitimacy of subsequent disability and treatment for chronic and con tinuing low back pain subsequent to this injury. Claimant reported his severe pain immediately to the plant medical office on August 16, 1989, and was treated accordingly. Claimant called in sick the next day complaining of back pain and was seen by L. C. Faber, M.D. Claimant was hospi talized for tests and was also evaluated by Julian Nemmers, M.D., an orthopedic surgeon. Both Dr. Faber and Dr. Nemmers agreed that claimant suffered a back strain from his injury on August 16, 1989, but felt that claimant had exaggerated pain complaints given the lack of findings from their exami nations and tests. Claimant attempted a return to work in September and October but each time he left work after only a few hours complaining of low back pain. On December 12, 1989, Dr. Nemmers opined that claimant reached maximum heal ing from his injury and released claimant to return to work without restrictions. Dr. Nemmers opined that claimant's condition was not permanent and attributed claimant's con tinuing pain complaints and inability to return to work as "functional overlay/malingering." It is found that the work injury of August 16, 1989, was a cause of claimant's absence from work from August 16, 1989 through December 12, 1989. However, it could not be found that claimant's disability and treatment for low back pain subsequent to December 12, 1989, was a result of the Page 3 injury in August of 1989. Claimant's failure in this matter stems from conflicting evidence as to the legitimacy and causal connection of the continuing low back pain. The con flicting evidence started with the opinions of Dr. Nemmers in December of 1989, as discussed above. After his opinion, claimant sought treatment from the VA Hospital in Iowa City, Iowa. Further testing by VA doctors again failed to find any objective problems. Claimant then returned to work in March 1990 but again left after a few hours due to low back pain. Claimant then sought treatment from Thomas Hughes, M.D., an occupational medicine physician. Upon a diagnosis of chronic pain disorder, Dr. Hughes treated claimant con servatively over the next few months with medication, exer cises, trigger point injections, ice massages and physical therapy. All of this treatment was unsuccessful in achiev ing any lasting relief of claimant's pain and the doctor discontinued his treatment in August 1990. Dr. Hughes felt that claimant's pain was real and noted objective signs such as muscle spasms, distorted body posture and a consistent pattern of complaints. He opined that claimant cannot return to work at FDL as he is not capable of performing such heavy work. He recommends that claimant not stand for more than one hour and indicates that claimant cannot toler ate prolonged walking and should only perform tasks requir ing minimal bending, stooping, lifting, kneeling and crawl ing. Dr. Hughes believes that claimant has a permanent par tial impairment consisting of 18 percent to the body as a whole. However, inconsistent pain reaction behavior has been noted by several persons connected to claimant's attempt at physical and vocational rehabilitation. Melvin Harvey, L.P.T., stated that in September 1989, during a functional abilities evaluation, claimant was so inconsistent in his behavior that he could not provide an accurate assessment of his capabilities. In December 1990, claimant was evaluated by Dr. Broman, M.D., (first name unknown) prior to attending a state vocational rehabilitation facility in Des Moines for evaluation of his potential for vocational rehabilitation. Dr. Broman noted that most doctors in claimant's case agreed that claimant's complaints are almost entirely subjective and that claimant exhibited "old problem, lack of motiva tion." Claimant attended the Iowa Vocational Rehabilitation Program in Des Moines in early 1991. The program was sched uled for three weeks but claimant left after only one week of testing complaining of severe back pain. Claimant explained that it was not so much the tasks involved but the walking on concrete floors. At the facility, vocational evaluators and counselors noted inconsistent pain behavior by claimant. For example, claimant one day insisted on being carried to his room but later on in the day left to go to his room on a floor below using the stairs rather than an elevator. Claimant was told that he should use the elevator if he is having pain. Claimant would complain of pain after only simple tasks such as placing poker chips into a plastic Page 4 bag but would later walk for over six to eight blocks to a local convenience store to buy cigarettes. Claimant com plained at hearing that he could not tolerate standing on concrete floors but most of the tasks would allow him to both sit and stand at his option. An evaluator at the facility with many years of experience, Roberta A. Kerr, whose deposition testimony appears in the record, testified that she felt claimant's behavior was very inconsistent for a person with a real disability. Claimant was also evaluated by William O'Dell, LPT, using an examination machine called a B200. This machine measures claimant's efforts to achieve a range of motion against a standard established by claimant in preliminary measurements in which claimant is asked to exert maximum effort against an immovable machine. Using this standard and a recognized protocol by the physical therapy community, O'Dell found that claimant in subsequent machine usage exhibited only mild physical dysfunction, but at the same time only exhibited a minimal effort in doing so. O'Dell questioned the legitimacy of claimant's efforts. Admit tedly, there is a serious problem in this testing protocol, especially in failing to fully rule out the possibility that claimant was naturally hesitate due to a fear of pain. How ever, this testing, in conjunction with the other evidence in this case of claimant's inconsistent pain behavior, was enough to raise serious doubts about claimant's disability. The undersigned is simply unconvinced by claimant that his continuing problems after December 12, 1989, are real or as bad as complained. Given the views of Dr. Nemmers, the only orthopedic surgeon testifying in this case, and the opinions of the L.P.T.'s along with the observations of vocational rehabilitation personnel, claimant has failed to prove that treatment and disability after December 12, 1989, was work related. The views of Dr. Hughes alone were insuf ficient to establish claimant's case. It should be noted that this decision was not based on anything that the undersigned observed in the surveillance video tapes placed into evidence. They revealed nothing of significance and in some respects helped claimant's case. He chose to use his legs and feet rather than to kneel and use his arms and hands to loosen the lug nuts on his van tires. He also, on one occasion, refused to lift a corner of a camper top and allowed a friend to do so. None of these tapes or the written description of activities observed by the private investigator demonstrated activity that would clearly be contrary to the work activity restric tions imposed by Dr. Hughes. Dr. Hughes never said that claimant had to be bed ridden or that he could not perform routine work around the home. It was repetitive and pro longed hard work such as meat packing work at FDL that, in the opinion of Dr. Hughes, claimant could no longer perform. As all the requested medical expenses were incurred by Page 5 claimant after December 12, 1989, none of the expenses can be found causally connected to the work injury. conclusions of law I. Claimant has the burden of proving by a prepon derance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. It is not necessary that claimant prove his disability results from sudden unexpected traumatic event. It is suf ficient to show that the disability developed gradually or progressively from work activity over a period of time. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). In the case sub judice, as stated in the findings of fact, there was only a minimal dispute as to whether or not a strain actually occurred at work. The fighting issue was the causal connection of claimant's chronic pain behavior to this work injury. As claimant failed to show this causal connection by a preponderance of the evidence, claimant is not entitled to compensation for the continuing problems after December 1989. II. The claimant has the burden of proving by a pre ponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either tem porary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. How ever, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, pos Page 6 itive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding cir cumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connec tion, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensabil ity, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condi tion, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, claimant failed to meet his burden of proof with reference to causal connection. The evidence was too conflicting to enable the undersigned to find that the work injury was a cause of the treatment and disability after December 1989. However, claimant is enti tled to treatment and disability benefits between the date of injury and December 12, 1989. Under Iowa Code section 85.33(1) claimant is entitled to temporary total disability benefits as a matter of law between the date of injury and the time Dr. Nemmers felt that claimant would be able to return to work on December 12, 1989. This entitles claimant under law to 17 weeks of temporary total disability benefits. order 1. Defendant shall pay to claimant temporary total disability benefits from August 17, 1989 through December 12, 1989, at the rate of two hundred sixty and 42/l00 dollars ($260.42) per week. 2. Defendant shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for benefits previously paid. 3. Defendant shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendant shall pay the cost of this action pur suant to rule 343 IAC 4.33, including reimbursement to Page 7 claimant for any filing fee paid in this matter. 5. Defendant shall file activity reports upon the pay ment of this aware as requested by this agency pursuant to rule 343 IAC 3.l. Signed and filed this ____ day of September, 1991. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Nick J. Avgerinos Attorney at Law 135 S LaSalle St Suite 1527 Chicago IL 60603 Mr. James M. Heckmann Mr. Stuart G. Hoover Attorneys at Law One Cycare Plaza Suite 216 Dubuque IA 52001 5-1803 Filed September 9, 1991 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : RICHARD SCHRAMM, : : File No. 926166 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N FDL FOODS, INC., : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 5-1803 Claimant failed to show that his chronic pain symptoms were causally connected to the injury and compensable.