BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ LARRY CLATT, Claimant, vs. File Nos. 931119/1020222 SAUER-SUNDSTRAND, A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL, 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 June 27, 1994 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 December, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Steven C. Jayne Attorney At Law 5835 Grand Ave., Ste 201 Des Moines, Iowa 50312 Mr. Harry W. Dahl Attorney at Law 974 73rd St., Suite 16 Des Moines, Iowa 50312 2203; 2204; 1402.30; 1402.40 Filed December 22, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ LARRY CLATT, Claimant, vs. File Nos. 931119/1020222 SAUER-SUNDSTRAND, A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL, Insurance Carrier, Defendants. _________________________________________________________________ 2203; 2204; 1402.30; 1402.40 Claimant, who had been previously held to have developed occupational asthma, renewed his claim after his employment had been terminated. There was no showing of disablement and the claim for occupational disease benefits was denied. Claimant had developed a major depressive disorder but the evidence failed to show that the employment played a substantial part in producing that depressive disorder. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LARRY CLATT, : : Claimant, : : vs. : : File No. 931119 SUNDSTRAND-SAUER, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Larry Clatt against his employer, Sundstrand-Sauer, and its insurance carrier, Liberty Mutual Insurance Company. Clatt alleges that he sustained an occupational disease, namely asthma, as a result of exposure to environmental irritants at his place of employment. Clatt seeks compensation for permanent partial disability and payment of medical expenses associated with his alleged condition. The primary issues to be determined are whether Larry Clatt sustained an occupational disease as a result of his employment with Sundstrand-Sauer and determination of his entitlement to receive weekly compensation for permanent partial disability and payment of expenses of treatment under Code section 85.27. The case was heard and fully submitted at Des Moines, Iowa on January 31, 1991. The evidence consists of testimony from Larry Clatt, Steven R. Wanzek, M.D., Lynn A. Schulte, Scott Lee and Doris Johnson. The record also contains claimant's exhibits 1 through 4 and defendants' exhibits A-1 through A-13. Page 2 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. It is found that Larry Clatt has not become actually incapacitated from performing his normal work with the employer or from earning equal wages in other employment as the result of any respiratory condition which afflicts him. Larry Clatt has incurred expenses in treating his respiratory condition. Such expenses, as found in exhibit 1-h through 1-q and 2-b and 2-c total $1,628.65. It was stipulated in the prehearing report that, in the event of an award, the employer was entitled to credit for payments under the non-occupational group plan in the amount of $1,196.89. The stipulated amount is slightly different than the itemized statement which claimant attached to the prehearing report, but in view of the status of the amount as being stipulated, it is found that the employer's non-occupational group medical insurance carrier has paid $1,196.89 towards the total bills incurred. Claimant has paid the balance with his own funds, namely $431.76. Larry Clatt has worked for Sundstrand-Sauer as a machinist for approximately 18 years. Part of his work involved using a pedestal grinder on which he ground various metal materials, some of which were a cemented carbide product with a cobalt binder. The safety data sheet for those materials cautions against inhaling the dust and states that a small percentage of individuals exposed to the dust can develop respiratory disease, including asthma (claimant's exhibit 3). The place where claimant worked has been tested by Aires Environmental Services, Ltd., and found to exceed recognized safety standards for cobalt exposure (claimant's exhibit 4; defendants' exhibits A-8 and A-12). An industrial hygiene study was also performed by National Environmental Testing, Inc., which showed substantially lesser quantities of cobalt (defendants' exhibit A-13). The exposure levels found by the National Environmental Testing, Inc., appear to not exceed recognized industrial hygiene standards. The testing methods used by Aires do not appear to be typical since most typical sampling performed by industrial hygienists is conducted by collecting samples continuously throughout an entire work day. Exhibit A-13 likewise shows short sample times on two of its four sampling methods. Based upon the evidence in the record of this case, it cannot be determined whether or not the cobalt Page 3 exposure at claimant's work place exceeded any recognized health or safety standards. The testing does, however, clearly establish the existence of cobalt dust and other dusts in the claimant's work place. The medical evidence in this case comes from three physicians, namely Tamarisa Narayan, M.D., Paul From, M.D., and Steven Wanzek, M.D. Dr. Wanzek is board certified in internal medicine and pulmonology. Dr. From is board certified in internal medicine, but not in pulmonology. The record does not contain the status of board certification for Dr. Narayan, but in view of the signature found at exhibit B-3, it is likely that Dr. Narayan is a specialist in pulmonary medicine and is likely board certified in that speciality. Dr. Wanzek has treated the claimant for his respiratory condition since 1985 while Drs. Narayan and From examined the claimant for purposes of this litigation. Dr. Wanzek has diagnosed claimant as having asthma (transcript, pages 29-35). Dr. Wanzek expressed the opinion that the exposure to non-specific irritants, in particular the dust at his place of employment, exacerbated Clatt's asthma (transcript, pages 36-42). Dr. Wanzek went on to explain that the question of why one person develops asthma and another does not is not well understood, though it is currently believed by the medical community that asthma is an inflammatory disorder and that dust and irritants enhance the inflammation and become a significant part of the continuation of the asthma (transcript, pages 43 and 44; exhibits 1-c; 1-f; B-5, page 7; B-5, page 8). Drs. From and Narayan do not agree with the diagnosis of asthma. Dr. From states that claimant has chronic bronchitis (exhibits B-1; B-2, pages 14-18). Dr. From agreed that the bronchitis could be related to claimant's work exposures, but he was unwilling to affirmatively state that such was the case (exhibit B-2, pages 24 and 39). Dr. From agreed that anything which is an irritant to the lungs will further irritate claimant's chronic bronchitis (exhibit B-2, page 32). Dr. From likewise agreed that the greater the exposure, the greater the likelihood of a relationship between the employment exposure and the respiratory disorder (exhibit B-2, page 31). Dr. From stated that he was unable to conclude that there was any cause and effect relationship between claimant's symptoms and his work, in particular because his examination of the claimant was normal and there was no history of any trauma, other than claimant having read the data sheet for the product and that that was the point at which his symptoms became apparent (exhibit B-2, pages 23-26). It is noted that claimant's reading of the material safety data sheet occurred in 1989, approximately four years after he began treating for the condition and its symptoms with Dr. Wanzek. Dr. Narayan, like Dr. From, found no evidence of claimant having reversible bronchospastic disease or Page 4 hyperreactive airways. The report of July 21, 1989 states that the diagnosis of asthma is suspect (exhibit B-3). A review of the actual testing results does corroborate Dr. Wanzek's assessment of the case, though Dr. Wanzek correctly characterized the test results as "borderline" in his May 8, 1990 office note (exhibit 1-g). Dr. Wanzek's assessment is accepted as being correct because he has been the treating physician and is therefore more familiar with the claimant, his symptoms and his responses to treatment than either Dr. From or Dr. Narayan. Further, his assessment is found to be correct because he appears to be basing his opinions upon more current medical information than Dr. From, in particular with regard to the methacholine challenge test results. Further, claimant has shown improvement with treatment which Dr. Wanzek has provided, a situation which would not be expected to exist if the diagnosis were incorrect. The evidence shows that Clatt was healthy when he commenced the employment where he was exposed to substances known to have the potential to induce asthma. The record does not disclose exposure to other agents known to have the ability to induce asthma. It is therefore found that Larry Clatt is afflicted with asthma and that the dusts to which he is exposed at his place of employment trigger a reaction in his airways which exacerbates the underlying condition. It is further found to be more likely than not that the continued exposure over the years to the dust in Clatt's place of employment, combined with a preexisting predisposition, caused Clatt to develop asthma. Since the asthma has developed and become symptomatic, he now reacts to other substances as well as those from his employment. Claimant's asthma has a direct causal connection with his employment and followed as a natural incident to the dust exposure from grinding. The condition did not occur independent of the employment. Claimant would not have been equally exposed to cobalt dust outside of his employment since it seems to be a product of grinding carbide tools. conclusions of law It is concluded that Larry Clatt has proven, by a preponderance of the evidence, that he contracted asthma as a result of his exposure to dust at his place of employment. Clatt has further proven, by a preponderance of the evidence, that the asthma is an occupational disease. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 190 (Iowa 1980); 1B Larson Workmen's Compensation Law, sections 41.31- 41.33; Section 85A.8, Code of Iowa. Since Larry Clatt is not incapacitated from performing his usual work, he is not entitled to recover any weekly compensation for permanent partial disability. His only entitlement is to recover expenses of medical treatment for his condition. Sections 85A.4 and 85A.5, Code of Iowa. Claimant is therefore entitled to recover from the Page 5 defendants the sum of $431.76 as reimbursement for the medical expenses he has paid in treating his respiratory condition. The employer is, as stipulated, entitled to credit for the amount paid by its group carrier. It is noted that even if the assessment of this case made by Dr. From were correct, namely that Clatt suffers from chronic bronchitis which is aggravated by exposure to irritants, the result would likely be the same with regard to the defendants' liability for payment of the medical expenses. The situation might be an injury which is an aggravation of a preexisting condition. It is even possible that the irritant exposure might be the source of the chronic bronchitis condition, and as such an occupational disease in its own right. order IT IS THEREFORE ORDERED that defendants pay Larry Clatt four hundred thirty-one and 76/100 dollars ($431.76) under the provisions of Iowa Code section 85.27 as reimbursement for expenses incurred in treating his occupational disease. IT IS FURTHER ORDERED that claimant take nothing from this proceeding in the way of weekly compensation benefits. 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 ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Page 6 Copies To: Mr. Steven C. Jayne Attorney at Law 5835 Grand Avenue Suite 201 Des Moines, Iowa 50312 Mr. Harry W. Dahl Attorney at Law 974 73rd Street Suite 16 Des Moines, Iowa 50312 1108.40; 1402.40; 2203 Filed May 8, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : LARRY CLATT, : : Claimant, : : vs. : : File No. 931119 SUNDSTRAND-SAUER, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1108.40; 2203 Claimant prevailed, despite conflicting evidence, in proving that he was afflicted with asthma and that the condition was causally connected to his employment. 1402.40 Claimant, who was still employed and earning at the normal rate, held not to have met the disablement standard of section 85A.4. He was therefore allowed to recover the expenses of medical treatment only under section 85A.5. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ LARRY CLATT, : : Claimant, : File Nos. 931119 & 1020222 : vs. R E V I E W - R E O P E N I N G : SAUER-SUNDSTRAND, : A N D : Employer, : A R B I T R A T I O N : and : D E C I S I O N : LIBERTY MUTUAL, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ STATEMENT OF THE CASE This decision concerns two proceedings brought by Larry Clatt against his former employer and its insurance carrier. File number 931119 is a review-reopening proceeding from the arbitration decision entered May 8, 1991, wherein claimant was held to have developed occupational asthma and was awarded expenses of medical treatment. File number 1020222 is an arbitration proceeding which alleges a date of disability of August 29, 1991. Claimant is seeking compensation based upon his asthma condition and also upon a depressive disorder. The case was heard at Des Moines, Iowa, on March 15, 1994. The evidence consists of testimony from Larry Clatt, Sandra Clatt, Dan Dyvig, Doris Johnson, and Gregory Wuhs. The record also contains joint exhibits 1 through 5, claimant's exhibits A and B and defendants' exhibits A, C and E. Official notice was taken of the transcript of the prior hearing conducted in file number 931119 and the exhibits introduced into evidence at that prior hearing. FINDINGS OF FACT The evidence introduced does not show claimant's asthmatic condition to have become disabling. Regardless of whether the date of August 29, 1991 or February 6, 1989 is applied, claimant has not shown that he is disabled as a result of his occupational asthma. He worked for this employer in his customary occupation up until the date of his coerced resignation. He worked performing similar work for three different employers after leaving Sauer-Sundstrand. There is some evidence to indicate that Page 2 the asthma might have been a problem with the third employer but in view of claimant's depressive disorder, it cannot be determined whether or not his asthma symptoms were significant. The claimant's description of his symptoms at that time is found to not be reliable. The evidence from Jack L. Dodd, M.D., and Michael Taylor, M.D., psychiatrists, describe a number of symptoms which are present when depression, in the medical sense, is present. According to Sandra Clatt, claimant's spouse of 30 years, claimant began developing problems with sleep, crying when it was not appropriate, getting up to go to work, loss of memory and loss of energy during the time leading up to when his employment with Sauer-Sundstrand terminated. During that same period of time it was noted by claimant's supervisors that he had difficulty interacting appropriately with coworkers. Dr. Dodd, in his deposition, gave a somewhat meandering description of some characteristics commonly seen in persons who are afflicted with depression. It is not uncommon for them to be hypochondriacal. Their judgment and cognitive abilities are often impaired. What the individual sees as the causes or history surrounding and leading up to the depression is not necessarily accurate. (joint exhibit 2, pages 8-19, 31 & 36-38). As indicated by Dr. Dodd, depression is often a summation of a variety of causative factors. (jt. ex. 2, pp. 40-42). The evidence establishes conclusively that the claimant is afflicted with a major depressive disorder. Dr. Dodd is, however, unwilling to causally connect the depression with claimant's occupationally induced asthma, other conditions at the place of employment with Sauer-Sundstrand or even with the termination of employment from Sauer-Sundstrand. (jt. ex. 2, p. 16). Dr. Taylor feels that there is no causal relationship between the Sauer-Sundstrand job and claimant's depression. (jt. ex. 3, pp. 11-13). The history upon which Dr. Taylor relies is found to be inaccurate. It is specifically found that Dr. Dodd is correct when he states that the patient is not necessarily an accurate historian. Dr. Taylor's statement that the claimant knows best how he was feeling at various times is found to not be accurate or reliable. The undersigned rejects the propositions that a person who is mentally impaired by a major depressive disorder is necessarily a reliable historian, that such a person is able to accurately identify the onset of the depression or the cause of the depression. Whenever the evidence from Dr. Taylor conflicts with that from Dr. Dodd, Dr. Dodd is found to be correct and the evidence from Dr. Taylor is rejected. Nevertheless, the record of this case does not show Larry Clatt's asthma to be a significant factor in producing his depression nor does it show the termination of the employment relationship with Sauer-Sundstrand to have been a substantial factor in producing the depression. Claimant's depressive symptoms were present for a considerable amount of time before the events leading to the Page 3 resignation occurred. The claimant's depression could possibly have some basis in his employment stresses, but the evidence simply fails to show any such connection to be a probability. From the evidence that was presented, it is quite possible that some of claimant's difficulties in his employment relationship at Sauer-Sundstrand were a result of an ongoing, but unrecognized, depression which continued to exist and progress after the employment relationship terminated. CONCLUSIONS OF LAW Iowa workers' compensation law distinguishes occupational diseases from work injuries. An occupational disease is a disease which arises out of and in the course of the employee's employment. The disease must have a direct causal connection with the employment and must follow as a natural incident from injurious exposure occasioned by the nature of the employment. While the disease need not be foreseeable or expected, after its contraction, it must appear to have had its origin in a risk connected with the employment and to have resulted from that risk. A disease which follows from a hazard to which an employee has or would have been equally exposed outside of the occupation is not a compensable occupational disease. The claimant need meet only two basic requirements to prove causation of an occupational disease. First, the disease must be causally related to the exposure to the harmful conditions in the field of employment. Second, the harmful conditions must be more prevalent in the employment than in everyday life or other occupations. Section 85A.8; McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Where an employee is injuriously exposed to hazardous conditions producing occupational disease while employed by several successive employers, the employer where the employee was last injuriously exposed is liable for the total disability. Doerfer Div. of CCA v. Nicol, 359 N.W.2d 428 (Iowa 1984). To be compensable, an aggravation of an occupational disease must be more than a temporary aggravation curable by removal from the exposure. McNeil v. Grove Feed Mill, II Iowa Industrial Commissioner Report 261 (App. 1981). In cases of nontraumatically-caused mental injury, the industrial commissioner follows the "Wisconsin" rule which is favored in 1B Larson The Law of Workmen's Compensation, 42.23(b). Desgranges v. Dep't of Human Services, File No. 760747 (App. Dec. August 19, 1988). Under the "Wisconsin" rule, a nontraumatically-caused mental injury is compensable only when the injury "resulted from a situation of greater dimensions than the day-to-day mental stresses and tensions which all employees must experience." Swiss Colony v. Dep't of Indus., L. & H. R., 72 Wis. 2d 46, 240 N.W.2d 128 (1976). In other words, both medical and legal causation must be resolved before finding an injury arising out of employment. The medical causation Page 4 issue involves an examination into the cause and effect relationship between the stresses and tensions at work and the mental difficulties. If the medical causation issue is resolved in favor of the claimant, legal causation is examined. Legal causation involves a determination of whether the work stresses and tensions, when viewed objectively and not as perceived by claimant, were "out of the ordinary from the countless emotional strains and differences that employees encounter daily without serious mental injury." School Dist. #1 v. Dep't of Indus., L. & H. R., 62 Wis. 2d 370, 215 N.W.2d 373 (1974). The claimant has the burden of proving by a preponderance of the evidence that the alleged condition 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). The claimant has the burden of proving by a preponderance of the evidence that the condition is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the condition and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). The evidence in the record of this case fails to show that claimant's occupational asthma has reached the threshold of disablement which is required in sections 85A.4 and 85A.5. Accordingly, he is not entitled to recover any weekly compensation on account of the occupational asthma which he has developed. The disease did not cause him to leave his employment at Sauer-Sundstrand and it did not cause him to be unable to perform work as a machinist with other employers. Claimant's depressive disorder might possibility have been precipitated in some part from his employment. Page 5 Possible causative factors include claimant's concern over exposure to potentially injurious substances, the potential for developing asthma, the stresses of litigation in the case which was previously taken to hearing and the stress associated with being forced to decide whether to resign or take his chances upon being involuntarily laid off. The record of this case shows claimant to have had symptoms of depression prior to 1989 and long prior to the time that the process of the termination of his employment was initiated. The greater likelihood is as expressly indicated by Dr. Taylor that the depression had its onset as a result of unidentified factors and the claimant's individual susceptibility. While Dr. Taylor's identification of a date of onset is expressly rejected by the undersigned in view of the inaccurate history upon which he relied. The ultimate conclusion is, nevertheless, accepted as being correct. It is consistent with the opinions expressed by Dr. Dodd. It is therefore concluded that claimant is not entitled to recover any weekly compensation benefits under any of the theories asserted. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). The record of this case contains a claim for expenses incurred in treating the claimant's depression. It does not appear to contain any claim for expenses incurred in treating claimant's asthma. Accordingly, claimant is not entitled to any recover under the provisions of section 85.27 in this case. ORDER IT IS THEREFORE ORDERED that claimant take nothing in file 931119 or file 1020222. It is further ordered that each party be responsible for paying the costs incurred by that party in participating in this proceeding. Signed and filed this __________ day of June, 1994. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Page 6 COPIES TO: Mr. Steven Jayne Attorney at Law 5835 Grand Ave Des Moines, Iowa 50312 Mr. Harry Dahl, Sr. Attorney at Law 974 - 73rd St, STE 16 Des Moines, Iowa 50312 2203 2204 1402.30 1402.40 Filed June 27, 1994 Michael Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ LARRY CLATT, Claimant, File Nos. 931119 & 1020222 vs. R E V I E W - R E O P E N I N G SAUER-SUNDSTRAND, A N D Employer, A R B I T R A T I O N and D E C I S I O N LIBERTY MUTUAL, Insurance Carrier, Defendants. ------------------------------------------------------------ 2203 2204 1402.30 1402.40 Claimant, who had been previously held to have developed occupational asthma, renewed his claim after his employment had been terminated. There was no showing of disablement and the claim for occupational disease benefits was denied. Claimant had developed a major depressive disorder but the evidence failed to show that the employment played a substantial part in producing that depressive disorder. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ALBERT J. HARTL, SR., Claimant, File No. 931120 vs. A P P E A L QUAKER OATS COMPANY, D E C I S I O N Employer, Defendant. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed October 20, 1992 is affirmed and is adopted as the final agency action in this case. Defendant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of July, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Robert R. Rush Attorney at Law P.O. Box 2457 Cedar Rapids, Iowa 52406-2457 Mr. James E. Shipman Mr. James M. Peters Attorneys at Law 1200 MNB Building Cedar Rapids, Iowa 52401 4000.2 Filed July 22, 1993 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ALBERT J. HARTL, SR., Claimant, File No. 931120 vs. A P P E A L QUAKER OATS COMPANY, D E C I S I O N Employer, Defendant. ____________________________________________________________ 4000.2 Held that in the recent case of Boylan v. American Motorists Ins. Co., No. 250/91-1520, Iowa Supreme Court filed September 23, 1992, the court recognized not only bad faith but also negligent conduct as grounds to invoke the penalty provisions of section 86.13. Found unreasonable was employer's denial of the claim on the basis of its expressed desire to make claimant wait as long as possible for his money regardless of the medical evidence and to force claimant into litigation to soften a claimant up for settlement. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ALBERT J. HARTL, SR., : : File No. 931120 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N QUAKER OATS COMPANY, : : Employer, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Albert J. Hartl, Sr., claimant, against Quaker Oats Company, employer, hereinafter referred to as Quaker, a self-insured defendant, for workers' compensation benefits as a result of an alleged injury on August 10, 1989. On September 1, 1992, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. ISSUES The only issue submitted by the parties for determina tion in this proceeding is the extent, if any, of claimant's entitlement to additional weekly benefits for an alleged unreasonable delay or denial of benefits under Iowa Code section 86.13(4). FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: On April 9, 1991, this agency issued an arbitration decision finding that claimant suffered an injury on August 10, 1989. Claimant suffered an injury arising out of and in the course of her employment with Quaker. The decision also found that the injury was a cause of permanent partial dis ability and awarded compensation based upon a finding of a six percent loss of earning capacity as a result of the injury. The relatively low award was probably due to the fact that claimant was able to return to his former work after medical treatment with no loss of earnings. This decision was appealed but the appeal was later dismissed at which time claimant was paid the award. Claimant received no payment of benefits prior to the dismissal of the appeal. Page 2 However, claimant has received group plan disability bene fits for his time off. After a review of the evidence and the April 9, 1991 decision, the findings of fact contained in the decision are adopted herein and by reference incorporated into this deci sion. This includes the following language in the Findings of Fact on page 4 of the decision: The evidence concerning the cause of claimant's August 1989 cervical spine difficulties is confusing.... The above mentioned medical reports could be interpreted in several ways.... The undersigned similarly finds that the evidence of causation between the claimant's work activities immediately prior to the August 10, 1989 injury and his subsequent treatment, including a surgical cervical decompression by James R. LaMorgese, M.D., was far from clear. Claimant has had a long-standing history of cervical disc disease since 1983 and a surgical discectomy at two levels of claimant's cervical spine in October 1983. In April 1989, claimant and Quaker entered into a compromise settlement of all of his claims stemming from a cervical back work injury on June 7, 1983 and industrial cervical disease due to trauma. The settlement was subject to review-reopening. The fighting issue was whether or not the events lead ing up to the complaints of cervical back pain on August 10, 1989 were a continuation of the old injury or a new injury by way of aggravation of the old injury. Claimant was first seen by Chad D. Abernathy, M.D., a neurosurgeon. His office notes reflect that claimant complained of a new discomfort emanating from his right cervical region down into the arm but did not identify an specific action which brought on this pain. "[R]ather it has come on steadily and progressively in a step wise fashion." Dr. Abernathy's impression was "progressive degenerative joint disease of the cervical spine of an arthritic type." Claimant was next seen on September 7, 1989 by James R. LaMorgese, M.D. Dr. LaMorgese has treated claimant for a number of years. On September 26, 1989, Dr. LaMorgese admitted claimant to the hospital for testing stating in the admission report that the patient may well have cervical spondylosis at the same two levels of prior surgery "that has been aggravated by his work with subsequent injury." In his discharge note, Dr. LaMorgese stated that claimant's condition was "work aggravated or related injury." On November 14, 1989, Dr. LaMorgese states in his office notes as follows: The patient and I discussed the cause for his cer vical disk disease. I do feel that it is related to his previous cervical problems from work. I think it is a further aggravation of his pre-existing condition with further injury. Page 3 In a formal letter report dated November 29, 1989, the doctor states as follows: It is my feeling that the patient's recurrent pain is related to continuing work related activities. I think it is an extension of his old injury after reviewing the history with Mr. Hartl rather than a new, separate episode. I cannot tell you if there is any new impairment rating for Mr. Hartl at this time. On August 21, 1990, the doctor states as follows: I feel that he [Hartl] has a permanent partial disability rating as a body as a whole of 18%. I feel that he has received a further impairment of 6% as a body as a whole related to his newest injury of the neck. In a letter from the claims adjuster, Karma Kelly, to her superior dated May 1, 1990, Kelly indicates that "based on the medical records that have been received thusfar, it does appear that these medical records are supporting the fact that the claimants [sic] work activity since 1983 have aggravated his preexisting condition to the point of needing the surgery of 1989 and subsequent permanent disability." She further states: "Even though compensability is ques tionable, we do not feel that we have enough evidence to proceed with a complete denial of this accumulative trauma claim." In July 1990, Kelly writes her superior again stat ing that Quaker adamantly wishes to deny the claim. She states that Quaker feels that claimant has had "one too many Worker's [sic] Compensation settlement awards already, and they are not interested in volunteering another one to him at this time." She indicates that Quaker does not wish to offer any settlement regardless of the medical records. Quaker understood that they may not be successful but that they wanted to make claimant wait for the money as long as possible. Kelly adds that both herself and Quaker are "hoping, as the months go by, the insured may soften up" and consider extending some authority for settlement. At hearing, a Quaker representative and Kelly testified that the confusion in the records was the primary reason for the denial. Ralph Gearhart, the attorney for defendants at the time, testified that his defense was based upon several facts. First there was a lack of specific injury or activ ity which precipitated the pain. Claimant on August 10, 1989 stated to Dr. Abernathy that he did not know what was causing his problems. Gearhart also discussed what he felt were confusing opinions of Dr. LaMorgese with Dr. Abernathy and stated that he showed a video tape of the type of work claimant was performing on August 10, 1989 to Dr. LaMorgese but received no satisfactory response. It was Gearhart's contention that claimant was not performing any strenuous activity to warrant a new injury on August 10, 1989. Also, claimant returned to full duty on the same job as he had on August 10, 1989 after his medical treatment without loss of pay or status. Gearhart states that this fact alone would justify an argument that claimant has no loss of earning Page 4 capacity as a result of the injury and is entitled to no permanent disability regardless of additional impairment. It is found that at no time did defendant seek another medical opinion, nor did they press Dr. LaMorgese for an explanation for his apparent waffling. Given the Karma Kelly letters, it would appear that the claim of confusion is an after thought to justify denial. Kelly certainly did not consider the records confusing. In any event, Quaker wanted to force claimant to hearing regardless of any medical reports and that is precisely what happened. CONCLUSIONS OF LAW I. Claimant seeks additional weekly benefits under Iowa Code section 86.13, unnumbered last paragraph. That provision states that if a delay in commencement or termina tion of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award extra weekly benefits in an amount not to exceed fifty percent of the amount of benefits that were unreasonably delayed or denied. Defendants may deny or delay the payment of bene fits only when the claim is fairly debatable. Seydel v. U of I Physical Plant, Appeal Decision, November 1, 1989. When the claim is "fairly debatable" the insurer is entitled to debate it, whether the debate concerns a matter of fact or law." The Supreme Court recently has clarified the grounds necessary to impose a section 86.13 penalty. In the recent case of Boylan v. American Motorists Ins. Co., No 250/91-1520, Iowa Supreme Court filed September 23, 1992, the court stated as follows: We conclude that it is unlikely that the legisla ture intended the penalty provision in section 86.13 to be the sole remedy for all types of wrongful conduct by carriers with respect to administration of workers' compensation benefits. By its terms, it applies only to delay in com mencement or termination of benefits. It contem plates negligent conduct rather than the willful or reckless acts that are required to establish a cause of action under Dolan. (emphasis added) Consequently, not only bad faith but also negligent conduct can invoke the penalty provisions of section 86.13. In reviewing the propriety of defendant's actions, Iowa Code section 507B.4(9) lists uniform unfair settlement claim practices for insurance companies. This listing is useful as a statement of public policy to identify the types of claim settlement practices that should be viewed unreason able. Failing to promptly and fully investigate a claim and to make claimant institute litigation to secure benefits are two types of unfair claim practices in this listing. In the case sub judice, the lack of a specific trauma is not reason to deny a claim in Iowa under McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). Attorney Page 5 Gearhart is correct that even if there was clear causation, returning the claimant back to work without loss of wages can form the basis of a complete denial of permanency bene fits. As this was a body as a whole case, the measure of entitlement is not the extent of functional impairment but loss of earning capacity. Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A finding of impairment does not mandate a finding of loss of earning capacity when there has been no lost earnings or employment. See Bearce v. FMC Corp, 465 N.W.2d 531 (Iowa 1991) However, Gearhart's industrial disability argument would not justify a denial of healing period benefits for time lost from work. Admittedly, Dr. LaMorgese's views were confusing. But, his most recent views clearly supported claimant's case. Iowa Code section 86.13 as now interpreted by Boylan, creates an affirmative duty for workers' compen sation insurance carriers and self-insureds to act reason ably once a claim is filed. Acting reasonably means to fully and fairly investigate a claim, not to stand back and deny a claim simply because they wish to deny a claim. In the case before us, it was unreasonable for Quaker to deny a claim on the basis of its desire to make claimant wait as long as possible for his money regardless of the medical evidence. It was unreasonable for Quaker to force claimant into litigation to soften a claimant up for settlement. Attorney Gearhart did a very competent job of attempting to justify Quaker's actions. But, in reviewing the propriety of a denial of benefits, we do not look at the matter in retrospect to find some legitimate basis for the denial. We examine the conduct of the defendants at the time of the denial and the actual reasons for the denial. The Karma Kelly letters provide us with the actual reasons in this case and they do not constitute reasonable behavior. Therefore, claimant has shown that the delay in commencing healing period benefits was unreasonable. As the denial in this case was particularly oppressive, the maximum penalty will be imposed. The actions of Quaker were more than negligent. The actions constitute bad faith. ORDER 1. Claimant's application for penalty benefits is granted. Claimant shall be awarded additional weekly bene fits in a lump sum consisting of one half (1/2) of the num ber of weeks awarded for healing period and permanent partial disability in the Arbitration Decision of April 9, 1991 (27.286) weeks at the rate of three hundred fifty and 31/l00 dollars ($350.31) per week). 2. Defendant Quaker 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. Signed and filed this ____ day of October, 1992. Page 6 ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert R. Rush Attorney at Law 526 2nd Avenue SE P O Box 2457 Cedar Rapids, Iowa 52406-2457 Mr. James E. Shipman Mr. James M. Peters Attorneys at Law 1200 MNB Building Cedar Rapids, Iowa 52401 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ALBERT J. HARTL, SR., Claimant, vs. QUAKER OATS COMPANY, File Nos. 735135 & 931120 Self-Insured Employer, A R B I T R A T I O N and QUAKER OATS COMPANY, D E C I S I O N Employer, and IDEAL MUTUAL INSURANCE CO. by IOWA INSURANCE GUARANTY ASSOC. Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration and review-reopening brought by Albert J. Hartl, Sr., as a result of injuries to his neck which occurred on June 7, 1983 and August 10, 1989. Claimant had settled the June 7, 1983, injury through an agreement for settlement filed on March 31, 1989, in file number 735135. Defendant, Ideal Mutual Insurance Company, by the Iowa Insurance Guaranty Association, is a party in interest only with respect to the June 3, 1983, claim set forth in file number 735135. Defendant, Quaker Oats Company was self-insured as of August 10, 1989. With respect to the August 10, 1989, injury set forth Page 2 in file 931120, self-insured defendant, Quaker Oats Company denied compensability for the injury and paid benefits under nonoccupational group health plan coverage. This case was heard and fully submitted at Cedar Rapids, Iowa, on February 19, 1991. The record in the proceeding consists of joint exhibits I through VI; claimant's exhibit 1; self-insured Quaker Oats exhibits AA, II, KK and LL; Ideal Mutual exhibits BB, CC and DD; and testimony from claimant, Myrna Hartl, Dennis Purcell and Erma Mrazek. ISSUES The issues presented for determination are as follows: 1. Whether claimant sustained an injury on August 10, 1989, arising out of and in the course of employment with employer; 2. Whether the alleged injuries caused temporary disability and the extent thereof; 3. Whether the alleged injuries caused permanent disability and the extent of entitlement under Iowa Code section 85.34(2)(u); 4. The commencement date for permanent partial disability; and Page 3 5. Claimant's entitlement to reimbursement for medical benefits under Iowa Code section 85.27 and the causal connection to the alleged injuries. Iowa Code section 85.38(2) credit was asserted as an issue by self-insured employer. A ruling was made that the credit under section 85.38(2) was not an issue at hearing for the reason that it was not listed as a hearing issue on the hearing assignment order filed September 10, 1990. FINDINGS OF FACT Having considered all the evidence received the following findings of fact are made: Claimant, Albert J. Hartl, Sr., first started work for Quaker Oats Company in 1956. He incurred an injury to his neck on June 7, 1983, arising out of and in the course of employment with Quaker Oats Company. That claim was insured by Ideal Mutual Insurance Company, which is now in receivership, by Iowa Insurance Guaranty Association. The June 7, 1983, claim, which is identified as file number 735135, was settled on April 17, 1989 (exhibit AA). The settlement agreement specifically allocated 13.25 percent permanent partial disability to the body as a whole to the June 7, 1983, injury (ex. AA). Subsequent to the June 7, 1983 injury, claimant returned to work for employer with the work restrictions of working no more then eight hours per day due to the June 1983 cervical spine injury (ex. Ia, pages 1 & 2). Page 4 Claimant returned to work for employer performing substantially similar duties as compared to those performed prior to the June 1983 accident. On August 19, 1989, claimant reported increased pain in his cervical spine and into the arm. Claimant, on August 19, 1989, consulted with Chad D. Abernathy, M.D., who diagnosed progressive joint disease of the cervical spine of an arthritic type (ex. Ia, p. 12). Claimant testified that the cervical pain was a new type of pain that he had not experienced before. The medical history documents this fact (ex. Ia, p. 12). A posterior cervical decompression surgery was performed on the C6-7 vertebrae on September 27, 1989 (ex. Ia, p. 24). On November 14, 1989, James R. LaMorgese, M.D., opined that the most recent injury was a further aggravation of claimant's preexisting condition (ex. Ia, p. 14). Claimant was released to return to work for employer on January 29, 1990 (ex. Ia, p. 14). Claimant did return to work for employer and continued on with the same duties that he was performing prior to August 10, 1989. No new restrictions were imposed upon claimant other than those which had been previously imposed for the 1983 injury. Claimant reported that the majority of his arm pain had been corrected by the surgery. However, claimant still experiences neck pain and stated that anything he does is more difficult now than before the August 1989 injury. Page 5 Claimant reported that he had received massage therapy, which in essence a whole body massage therapy, in order to alleviate some of his pain. Claimant testified that he paid for these expenses out of his own pocket. The treating physician, Dr. LaMorgese, approved of the massage therapy, but did not prescribe it. Claimant testified that the medical expenses for treatment of the cervical spine condition subsequent to August 1989, were paid for by the employer's nonoccupational group health plan with the exception of certain deductibles. Claimant also testified that he had received no payments of weekly workers' compensation benefits, but that he had received disability payments through employer's nonoccupational disability program. Claimant testified that he was able to return to his duties for employer in 1989 without significant difficulty. Claimant did report that he missed work starting September 15, 1990 through September 21, 1990, for a total of seven days. Claimant attributed this lost time to the cervical spine difficulties. Myrna Hartl testified that she has been claimant's wife for 34 years. She has also been an employee of employer for about 28 or 29 years. She stated that subsequent to the September 1989 surgery, claimant has experienced difficulty with his cervical spine. She stated that the last surgery slowed him down in all of his activities. Dennis Purcell testified that he has worked for Quaker Oats for 26 years. He has been a production supervisor for Page 6 22 years with employer. His duties involve managing the production of employees. Purcell testified that he had been claimant's supervisor during the time periods in question. He was aware of claimant's cervical spine problems which occurred in 1983. He described claimant as a conscious, steady and good worker. He stated that claimant did not have problems with absenteeism. He stated that at the present time, claimant is able to do all jobs assigned to him without complaints. He further testified that the most recent surgery has not affected claimant's ability to perform his job for employer. Purcell testified that exhibit KK, a video tape, fairly and accurately represents the basic components of claimant's job both before and after the alleged August 1989 injury. Erma Mrazek testified that she has been working for employer for about 4 1/2 years as supervisor of health and benefits. In that capacity she handles work-related injuries on behalf of employer. She testified that the majority of claimant's medical expenses were paid by INA Insurance or Prudential. She stated that there is a $400 deductible that the employee must pay, but this is offset by a $400 expense account that the employee can draw upon to pay for assorted medical expenses. After the $400 deductible claimant pays 15 percent of covered expenses. After the total costs come to about $6,000 to $7,000, the insurance pays for 100 percent. Page 7 Mrazek testified that the health insurance did not cover claimant's full-body massage therapy program. She testified that the massage therapy has physical and psychological benefits, but does not heal or cure injuries and was not a covered treatment under the health insurance program. She did not recommend massage therapy personally or professionally. The first issue concerns liability in the review-reopening action entitled file number 735135. The issue is whether claimant's current complaints, which originated in August 1989, relate to the June 7, 1983, injury and are compensable under that file number. The evidence concerning the cause of claimant's August 1989 cervical spine difficulties is confusing. On one hand Dr. Abernathy diagnoses claimant's problem as progressive joint disease of the cervical spine of an arthritic type (ex. Ia, p. 12). On the other hand, claimant's history given to the medical professionals indicates a new type of pain that he had not experienced before (ex. Ia, p. 12). Dr. LaMorgese states that the cause of the current problems is a further injury of a preexisting condition and is not directly related to the previous cervical spine problems (ex. Ia, p. 14). On November 29, 1989, Dr. LaMorgese stated that the patient's recurrent cervical pain was related to continuing work-related activities (ex. Ia, p. 24). In the same letter, Dr. LaMorgese stated that the current injury is an extension of the old injury rather than a new separate episode and the problem was causally related to previous Page 8 neck problems (ex. 1a, p. 24). The above mentioned medical reports could be interpreted in several different ways. The record is clear that claimant had a preexisting work-related injury to the cervical spine on June 7, 1983, which resulted in C5-6 and C6-7 discectomies. It is also apparent from the record that claimant continued working for employer subsequent to his discharge from care for the June 1983 injury. Upon considering all the evidence received, it is found that the proceeding is properly one in arbitration for a new injury rather than review-reopening in that the medical treatment, surgery and disability, are attributable to an aggravation of a preexisting condition rather than the mere outgrowth of the original injury. Dr. LaMorgese's statements that the patient's recurrent pain is related to continuing work-related activities and the medical history relating a new kind of pain indicate that claimant sustained an aggravation of the prior work-related injury. In the case at hand it appears that the aggravation is the current cause of the need for medical treatment and the current cause of disability as opposed to a naturally occurring sequela of the original June 1983 injury. Between the 1983 injury and August 1989 injury, the employer ceased being insured and became self-insured. Having found that the August 1989 cervical spine complaints are the result of new intervening factors, it follows that defendant Ideal Mutual Insurance Company, by Iowa Insurance Page 9 Guaranty Association, is not liable for any workers' compensation benefits in this case. Claimant shall take nothing from the review-reopening in file number 735135 as he has failed to prove by a preponderance of the evidence that the current cervical spine problems are causally connected to the June 7, 1983, cervical spine injury. Claimant has also filed a petition in arbitration under file number 931120 alleging that a work-related injury occurred on August 10, 1989. The first issue to be decided is whether claimant sustained an injury on August 10, 1989, arising out of and in the course of employment with the self-insured employer Quaker Oats Company. Defendant Quaker Oats contends that claimant's allegation of an injury should fail as he could point to no specific incident which caused the injury. Claimant counters by arguing that the most recent cervical spine problems are the result of cumulative or repetitive injury. Claimant's job for employer was called the instant oats line operator. He started this job in February 1983 (ex. II, p. 15). A description of the instant oats line operator duties is set forth in exhibit II, page 16. The actual job duties are also set forth in the video tape marked and entered as exhibit KK. Claimant described his job duties as requiring lifting, pushing, pulling, bending, stooping and reaching. Claimant was required to lift boxes of cartons that weighed as much as 30 pounds. Claimant occasionally lifted cases of product that weighed 10 to 15 pounds. Claimant would move waste barrels of several different sizes Page 10 that weighed between 60 and 70 pounds. He was required to move pallets as many as 10 times per day. Claimant also had responsibility for doing maintenance on machines when they became jammed by boxes. This required claimant to crawl into the machine and tear up boxes piece by piece in order to clear the jam. Claimant testified that no accident or injury precipitated his cervical spine pain in August 1989. He stated that it was a pain that came on gradually. It is found that on August 19, 1989, claimant sustained an injury arising out of and in the course of employment with employer while performing duties as an instant oats line operator. The injury was in the form of an aggravation to a preexisting cervical spine condition. The next issue is whether the August 10, 1989, injury resulted in permanent partial disability. The treating physician opined that claimant's permanent partial impairment was 18 percent of the body as a whole with 6 percent attributable to the recent injury to the neck (ex. Ia, p. 30). Dr. LaMorgese had rated claimant's 1983 cervical spine injury at 12 percent permanent partial impairment to the body as a whole (ex. Ia, p. 19). Dr. LaMorgese was the treating physician for the August 1989 complaints. He was also the treating physician for the 1983 cervical spine problem. His opinion on impairment, with respect to the 1989 cervical spine problem, is accepted as correct. It is found that as a result of the August 10, Page 11 1989, injury to the cervical spine claimant has sustained permanent disability. The parties stipulated that if the injury is found to be a cause of disability, that the type of permanent disability is industrial disability to the body as a whole. Factors to be considered when assessing industrial disability include claimant's age, education, experience, work restrictions, permanent impairment and employer's offer of work. Claimant, age 54 at the time of injury, completed the eighth grade of school and has no additional training subsequent to that time. Claimant's work experience consists primarily of farm labor, three years in the military and his continuous work for employer since 1956 as a laborer. Claimant has work restrictions limiting him to no overtime work as a result of the 1983 cervical spine injury. The 1989 aggravation resulted in no new work restrictions. Claimant was allowed to return to his former job as an instant oats line operator as of January 1990. He is currently physically capable of performing those duties. He receives the same rate of pay as he did prior to the August 10, 1989 injury. Claimant's impairment as a result of the August 10, 1989, aggravation was rated at 6 percent to the body as a whole. Contrary opinions of impairment were not offered. Page 12 In this case, the employer, in good faith, offered claimant his old job back. Claimant accepted the offer of employment and has worked continuously since January 1990 with the exception of one week of absence which claimant attributes to his cervical spine injury. Having considered all of the material factors, it is found that claimant sustained 6 percent industrial disability as a result of the August 10, 1989, aggravation injury of the cervical spine. It should be noted that the preexisting industrial disability is revealed in the agreement for settlement marked exhibit AA. The 6 percent industrial disability is the excess industrial disability over and above that which claimant had sustained in the June 1983 injury. In other words, the 6 percent industrial disability is the amount attributable to the August 10, 1989, aggravation injury alone and of itself. Having found that the August 10, 1989, aggravation was a cause of permanent disability, it follows that the lost time should be classified as healing period. The next issue is whether the alleged injury of August 10, 1989, is a cause of healing period and the extent thereof. Claimant testified that he first lost time from the job on August 11, 1989, as a result of the August 10, 1989 injury. The medical records substantiate that claimant began receiving treatment for the injury on August 10, 1989 (ex. Ia, p. 12). Claimant was then off work continuously Page 13 until being released by Dr. LaMorgese on January 29, 1990. During that period of lost time, the medical records reveal that claimant was under treatment for the cervical spine condition (ex. Ia, pp. 12-14). During the period in question claimant did receive a cervical spine surgery (ex. Ia, p. 24). It is found that claimant's healing period began August 11, 1989, and continued through January 29, 1990 (ex. Ia, p. 14). It is also found that the period of lost time is causally related to the August 10, 1989, cervical spine injury as demonstrated by the medical records and claimant's testimony. The medical records clearly reveal that from August 11, 1989 through January 29, 1990, claimant was under the continuous care of medical providers for treatment of the cervical spine condition. Claimant's release to return to work by the treating physician on January 29, 1990, ends the healing period. Claimant also alleges entitlement to healing period beginning September 15, 1990 through September 21, 1990. It is found that claimant has failed to prove entitlement to healing period during that time for the reason that no causal connection to the August 10, 1989, injury has been shown. Claimant's testimony that he was off work during that period of time is not substantiated by sufficient medical evidence to prove by a preponderance of the evidence that the disability was causally connected to the August 10, 1989 injury. In other words, claimant failed to present an authorization taking him off work during that period which linked the lost time to the August 10, 1989 injury. Absent such an off-work authorization, claimant's request for the Page 14 additional week of healing period must fail. The next issue concerns the commencement date for payment of permanent partial disability. Such benefits begin at the end of healing period. Having found that the healing period ended on January 29, 1990, it follows that permanent partial disability payments must begin on January 30, 1990. The final issue concerns claimant's entitlement to Iowa Code section 85.27 benefits. Since claimant has established liability on the part of self-insured employer Quaker Oats Company, he is entitled to payment of reasonable and necessary medical benefits which are causally related to the August 10, 1989, cervical spine injury. However, the facts of this case present certain subissues. The first question concerns the compensability of claimant's massage therapy expenditures. Claimant testified that he was receiving massage therapy in order to alleviate pain. However, the fact was not controverted that such massage therapy was not prescribed by a physician. It is found that the therapeutic massage expenses, shown in plaintiff's exhibit 1, are not reasonable and necessary medical treatment as contemplated by Iowa Code section 85.27 for the reason that they were not prescribed by a treating physician. Claimant has failed to prove entitlement to reimbursement for the expenses incurred with Soigneur Body Therapy and any associated mileage expenses. Page 15 The next issue concerns claimant's request for direct reimbursement for medical expenses. Claimant testified that he had paid only a portion of his medical expenses out of his own pocket. The majority of the expenses were paid for by employer's group health insurance carrier. Claimant has proven entitlement to reimbursement for medical expenses related the August 10, 1989, cervical spine injury. All of the expenses presented, with the exception of those listed in exhibit 1, are causally related to the August 10, 1989, injury and are compensable. However, claimant is only entitled to receive payment direct from employer for those expenses which were paid for out of his own pocket. Employer is directly responsible to the third parties in order to satisfy any other outstanding medical expenses. Therefore, employer must access its health insurance records in order to determine the exact amount of money expended by claimant in order to satisfy deductibles on the medical expenses in question. The exact amount of out-of-pocket expense incurred by claimant is to be reimbursed direct to claimant. All other unpaid work-related medical expenses are to be paid by employer direct to the third party providing such services. It should be noted that at the time of hearing, claimant was unable to specify the exact amount of out-of-pocket medical expense that he incurred for the August 10, 1989, injury. The commission will not speculate as to the amount of medical expenses to be reimbursed to a claimant, nor will the defendant be unjustly enriched due to claimant's failure to specify an exact amount. The parties Page 16 are directed to work together the determine the actual amount of out-of-pocket expenses through a review of the insurance records in order to satisfy the medical obligations. The next issue concerning medical expenses concerns claimant's transportation costs shown in exhibit VIb. Claimant lists costs for transportation related to trips to doctors and pharmacies. Iowa Code section 85.27 allows reasonable and necessary transportation expenses incurred for such services. It is found that claimant has proven entitlement to reimbursement for transportation expenses listed in VIb. The transportation expenses in exhibit VIb relate directly to the August 10, 1989, cervical spine injury. CONCLUSIONS OF LAW When a worker sustains an injury, later sustains another injury, and subsequently seeks to reopen an award predicated on the first injury, he or she must prove one of two things: (a) that the disability for which he or she seeks additional compensation was proximately caused by the first injury, or (b) that the second injury (and ensuing disability) was proximately caused by the first injury. DeShaw v. Energy Manufacturing Company, 192 N.W.2d 777, 780 (Iowa 1971). Claimant has failed to prove by a preponderance of the evidence that the disability for which he seeks additional Page 17 compensation was proximately caused by the injury of June 7, 1983. Claimant shall take nothing from file number 735135. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). Claimant has proven by a preponderance of the evidence that he sustained an injury on August 10, 1989, to his cervical spine, arising out of and in the course of employment with employer. The injury was an aggravation to a preexisting cervical spine condition caused by the repetitive nature of claimant's work as an operator on the instant oats line. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an Page 18 aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis Page 19 ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., Page 20 (Appeal Decision, March 26, l985). Claimant has proven that the August 10, 1989, injury is a cause of permanent disability based upon Dr. LaMorgese's record and claimant's testimony. Upon considering all the material factors, it is found that the evidence in this case supports an award of 6 percent permanent partial disability which entitles the claimant to recover 30 weeks of benefits under Iowa Code section 85.34(2)(u) as a result of the aggravation injury to his cervical spine. Section 85.34(1), Code of Iowa, provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) he has returned to work; (2) is medically capable of returning to substantially similar employment; or (3) has achieved maximum medical recovery. The industrial commissioner has recognized that healing period benefits can be interrupted or intermittent. Willis v. Lehigh Portland Cement Company, Vol. 2-1, State of Iowa Industrial Commissioner Decisions, 485 (1984). Claimant has proven by a preponderance of the evidence the causal connection and entitlement to healing period benefits as a result of the August 10, 1989, injury. Healing period benefits begin August 11, 1989 and continue through January 29, 1990. Iowa Code section 85.34(2) provides that compensation for permanent partial disability shall begin at the Page 21 termination of the healing period. Iowa Code section 85.34(2)(u) provides that compensation for a nonscheduled or body as a whole injury shall be paid in relation to 500 weeks and the disability bears to the body as a whole. Having found that the healing period benefits end on January 29, 1990, it follows that claimant has carried his burden in proving January 30, 1990, as the commencement date for permanent partial disability benefits. The employer, for all injuries compensable under chapter 85 or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies; therefore, and shall allow reasonable necessary transportation expenses incurred for such services. The employer has the right to choose the provider of care. Iowa Code section 85.27. "Claimant is not entitled to reimbursement for medical bills unless he shows that he paid them from his own funds." See Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890 (Iowa App. 1983). Claimant has proven entitlement to reimbursement for medical expenses causally related to the August 10, 1989, cervical spine injury. Claimant is entitled to direct reimbursement for medical bills that he paid from his own funds. The employer is responsible for direct payment for all other related medical expenses. Page 22 Claimant has failed to prove by a preponderance of the evidence that the massage therapy expenses are reasonable and necessary medical expenses under Iowa Code section 85.27. Claimant has proven by a preponderance of the evidence entitlement to reimbursement for his transportation expenses incurred in relation to the reasonable and necessary medical treatment related to the August 10, 1989, injury. Claimant is not entitled to reimbursement for transportation expenses incurred when involved in the massage therapy as shown in plaintiff's exhibit 1 as said expenses are not compensable under Iowa Code section 85.27. A deputy commissioner is without jurisdiction to consider an issue, not listed as an issue on the hearing assignment order. See Joseph Presswood v. Iowa Beef Processors, (Appeal Decision filed November 14, 1986) holding an issue not noted on the hearing assignment order is an issue that is waived. At the time of hearing, employer asserted Iowa Code section 85.38(2) credit as an issue. Claimant objected stating that the issue had only been raised on the day of hearing. Iowa Code section 85.38(2) was not considered a hearing issue for the reason that it was not raised in the hearing assignment order filed on September 10, 1990. ORDER Page 23 IT IS, THEREFORE, ORDERED: Defendant Quaker Oats Company, self-insured, is to pay claimant healing period benefits at the rate of three hundred fifty and 31/100 dollars ($350.31) per week for the period August 11, 1989 through January 29, 1990, in file number 931120. Defendant Quaker Oats Company, self-insured, is to pay claimant thirty (30) weeks of permanent partial disability benefits at the rate of three hundred fifty and 31/100 dollars ($350.31) per week commencing January 30, 1990, in file number 931120. It if further ordered that defendant Quaker Oats Company, self-insured, shall pay for claimant's reasonable and necessary medical and transportation expenses as outlined in the opinion, in file number 931120. Claimant shall be reimbursed for medical bills that he has paid from his own funds, in file number 931120. It is further ordered that claimant take nothing from file number 735135. 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. Page 24 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 defendant Quaker Oats, self-insured, pursuant to rule 343 IAC 4.33. It is further ordered that defendant Quaker Oats, self-insured, file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of March, 1991. ______________________________ MARLON D. MORMANN Page 25 DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert Rush Attorney at Law 526 2nd Ave SE PO Box 2457 Cedar Rapids, Iowa 52406 Mr. John Bickel Mr. Ralph W. Gearhart Attorneys at Law 500 MNB Bldg. PO Box 2107 Cedar Rapids, Iowa 52406 Mr. William L. Dawe Attorney at Law 801 Grand Ave, STE 3700 Des Moines, Iowa 4000.2 Filed October 20, 1992 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ALBERT J. HARTL, SR., File No. 931120 Claimant, A R B I T R A T I O N vs. D E C I S I O N QUAKER OATS COMPANY, Employer, Defendant. ___________________________________________________________ 4000.2 Held that in the recent case of Boylan v. American Motorists Ins. Co., No. 250/91-1520, Iowa Supreme Court filed September 23, 1992, the court recognized not only bad faith but also negligent conduct as grounds to invoke the penalty provisions of section 86.13. Found unreasonable was employer's denial of the claim on the basis of its expressed desire to make claimant wait as long as possible for his money regardless of the medical evidence and to force claimant into litigation to soften a claimant up for settlement. 52905 51100 51802 51803 52206 52500 Filed April 9, 1991 Marlon D. Mormann BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ALBERT J. HARTL, SR., : : Claimant, : : vs. : : QUAKER OATS COMPANY, : : File Nos. 735135 & 931120 Self-Insured : Employer, : : A R B I T R A T I O N and and : : R E V I E W - R E O P E N I N G QUAKER OATS COMPANY, : : D E C I S I O N Employer, : : and : : IDEAL MUTUAL INSURANCE CO. by : IOWA INSURANCE GUARANTY ASSOC.: : Insurance Carrier, : Defendants. : ___________________________________________________________ 52905 Claimant failed to prove that his present cervical spine condition was related to his 1983 injury and claimant took nothing in file number 735135. 51100 51802 51803 52206 52500 Claimant established an aggravation injury to the cervical spine which resulted in a cervical disc surgery. Claimant entitled to healing period and medical benefits. However, claimant denied reimbursement for whole body massage as no showing was made that the massages were prescribed by a physician. Claimant, age 54, with eighth grade education, sustained a cervical aggravation injury with 6 percent additional impairment and not increased work restrictions. Claimant returned to his old job with employer with the same rate of pay. Claimant awarded 6 percent additional industrial disability over and above the preexisting permanent partial disability.