Page 1 before the iowa industrial commissioner ____________________________________________________________ : JAMES D. MOLITOR, : : Claimant, : : vs. : : File No. 931314 JET EDGE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : SAFECO INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by James D. Molitor, claimant, against Jet Edge, employer, and Safeco Insurance, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on December 2, 1988. This matter came on for hearing before the undersigned deputy industrial commissioner on April 16, 1991, in Mason City, Iowa. The matter was considered fully submitted at the close of the hearing. The record in this case consists of testimony of claimant and Al Zeinemann; joint exhibits A-H; and claimant's exhibits l, 3-6. issues Pursuant to the prehearing report and order submitted and approved on April 16, 1991, the issues to be determined in this case include: 1. Whether there is jurisdiction under the Iowa Workers' Compensation Act; 2. Whether there is a causal connection between the injury of December 2, 1988 and the claimant's condition after he was released to return to work on January 23, 1989; and, 3. The nature and extent of permanent disability, if any. findings of fact The undersigned has carefully considered all the testimony given at the hearing, the arguments made, and the evidence con tained in the exhibits herein, and makes the following findings: Page 2 Claimant sustained an injury on December 2, 1988, in the State of Kentucky stipulated by the parties to arise out of and in the course of employment for Jet Edge. Benefits have been paid to claimant under the Minnesota Workers' Compensation Act. At all times pertinent herein, claimant has been a resident of Iowa. He pays state taxes under Iowa law and his cars and motorcycle are licensed in the State of Iowa. The employer was incorporated in the State of Minnesota at the time of claimant's injury. An affidavit from Betty Anastasia, Personnel Manager for Possis Corporation/Jet Edge, states neither Possis nor its subsidiary Jet Edge has a place of business in the State of Iowa. The employer was incorporated under the laws of Minnesota and its business is principally localized in Minnesota and its office is located in Minneapolis, Minnesota (Exhibit C). According to Irving R. Colacci, General Manager of Jet Edge: "No Jet Edge activity was conducted in Iowa during the course of our dealings with Mr. Molitor and Jet Edge has not actively engaged in doing business in Iowa, beyond pursu ing a limited number of sales opportunities." (Ex. G). This was corroborated by the testimony of Mr. Al Zeinemann, claimant's supervisor at the time of the injury. Claimant did not regularly work in Iowa. His employment was not localized in any state. He was given assignments to travel throughout the United States, including Kentucky, Michigan, New Mexico, Washington, Idaho and outside the United States. Claimant was born on February 11, 1957 and completed the eleventh grade of school. He worked at various times as a farmer, nightclub manager and construction laborer. In the Fall of 1986, he commenced working for Jet Edge as a field engineer. On December 2, 1988, he hurt his back while working in the employ of Jet Edge. He was released to return to work in January of 1989, but at that time the company was going through massive lay offs and he offered to take a layoff the Monday following his release to return to work. Subsequently, he received unemploy ment compensation benefits. Thereafter, he worked as a self-employed Jet Edge field engineer consultant. In July 1990, he was hired by Mr. Beadle as consultant for his Jet Edge operation in New Mexico. In this capacity, he performs no manual labor but basically manages the business. The pertinent medical evidence of record reveals that the claimant injured his back on December 2, 1988, while replacing heavy equipment parts. At the time he was lifting with another gentleman, a piece of equipment that weighed more than 125 pounds. The following day he had increasing back difficulty and he saw Ron Ercolani, M.D. He was off work for about seven weeks and had physical therapy. Dr. Ercolani released him to return to regular duties on January 23, 1989 (Ex. E2, pages 12-15). Claimant reported to work but employer's business was falling off. According to Mr. Al Zeinemann, claimant voluntarily said he was not coming back to work. He received unemployment compensation benefits which required him to certify that he was Page 3 ready, willing and able to work. Claimant never returned to work for Jet Edge. Claimant testified that he did some consulting work in February/March 1989 and other work throughout 1989 and thereafter. On April 25, 1989, claimant consulted with Dr. Ercolani with complaints of recurrent back pain. Because of his persistent symptoms, a CT scan was performed on May 2, 1989. The results showed multi-level degenerative disc disease from L2-3 through L5-Sl with several disc herniations throughout those levels particularly prominent at the L4-5 level, producing compression of the thecal sac (Ex. E1, pp. 17-18). Claimant was scheduled to see Dr. Ercolani one week after the CT scan but failed to keep his appointment. On May 15, 1989, Dr. Ercolani reported a conservative treatment plan to include physical therapy, non-steroidal anti-inflammatory agents and mod ified work. It was his opinion that the etiology of claimant's injury goes back even prior to the December 1988 injury and that the degenerative changes present on the CT scan have probably been present on a long-term basis (Ex. E1, pp. 19-20). Dr. Ercolani reported that claimant had reached maximum med ical improvement on June 2, 1989, and gave him an 18 percent impairment to the body as a whole (Ex. E2, p. 26). Claimant was referred by employer to David J. Boarini, M.D., for a comprehensive evaluation on June 30, 1990. On examination, claimant had a normal gait. He was able to flex his lower back to 90 degrees and had normal extension and lateral bending. He had minimal muscle spasms in the paravertebral musculature in the lateral back with extreme lateral bending. There was a trace of tenderness in the left paravertebral musculature. Straight leg raising was negative. Strength and sensation were entirely intact. There was no evidence of atrophy or fasciculation in the lower extremities and the thighs and the calves measured symmet rically. Dr. Boarini commented that the CT scan previously taken showed some mild degenerative changes but no evidence of large disc herniation. Lumbosacral spine x-rays taken at this time showed no abnormalities. Dr. Boarini stated that claimant has some myofascial low back pain but an entirely normal neurological examination. It was his impression that this back pain cannot reasonably be related to the minor incident that occurred in 1988. He opined: "I really don't think there is any significant findings that would warrant a permanent partial impairment or specific work restrictions." (Ex. E3, pp. 1-2) conclusions of law The first issue to be determined in this case is whether there is jurisdiction under the Iowa Workers' Compensation Act over claimant's injury of December 2, 1988, in Louisville, Kentucky. Claimant has received seven weeks of temporary total disability benefits under the Minnesota Workers' Compensation Act. The claimant alleges that he is entitled to Iowa workers' Page 4 compensation benefits because he was hired in the State of Iowa and has always been a resident of Iowa. Because the claimant was injured outside the territorial limits of Iowa, determination of whether there is jurisdiction under the Iowa workers' compensation law depends on a review of the facts under Iowa Code section 85.71. Section 85.71 provides: If an employee, while working outside the territorial limits of this state, suffers an injury on account of which the employee, or in the event of death, the employee's dependents, would have been entitled to the benefits provided by this chapter had such injury occurred within this state, such employee, or in the event of death resulting from such injury, the employee's dependents, shall be entitled to the bene fits provided by this chapter, provided that at the time of such injury: 1. The employment is principally localized in this state, that is, the employee's employer has a place of business in this or some other state and the employee regularly works in this state, or if the employee is domiciled in this state, or 2. The employee is working under a contract of hire made in this state in employment not principally local ized in any state, or 3. The employee is working under a contract of hire made in this state in employment principally localized in another state, whose workers' compensation law is not applicable to the employee's employer, or 4. The employee is working under a contract of hire made in this state for employment outside the United States. In interpreting section 85.71(1), the Iowa Supreme Court in Iowa Beef Processors, Inc. v. Miller, 312 N.W.2d 530, 534, (Iowa 1981), stated domicile alone is not sufficient to entitle an employee, injured outside Iowa, to benefits under our Act, but rather, some meaningful relationship between domicile and the employer-employee relationship must exist. The court then held that the employer's placement of a help wanted ad, to which claimant responded, in an Iowa newspaper was not material to claimant's employment and was, therefore, insufficient to supply the necessary connection. The court did not address the issue of how sufficient the connection between domicile and the employment relationship must be to entitle an employee injured in another state to benefits under our Act. The Iowa Supreme Court next addressed the interpretation of section 85.71 in George H. Wentz, Inc. v. Sabasta, 337 N.W.2d 495 (Iowa 1983). In Wentz, the court expressly overruled Haverly v. Union Construction Co., 18 N.W.2d 629 (Iowa 1945). That case held that making an employment contract in Iowa would support an award of benefits under our Act. The Wentz court at 499 said: Page 5 "We think Iowa law on extraterritorial application of our workers' compensation act has changed since the Haverly decision, and the rule of that case no longer is valid." The court then said at page 500: The place of contract or hiring becomes significant only when the employment is not principally localized in any state, the law of the state where the employment is principally localized is not applicable to the employer, or the employment is outside the United States....Permitting recovery of Iowa benefits based solely on a showing the contract of hire was made in Iowa, following Haverly, would render nugatory the additional requirements of subsections 85.71(2), (3) and (4) of the act. In Iowa Beef Processors and Wentz, the court referred to the Counsel of State Governments Model Act definition of principally localized employment which reads as follows: A person's employment is principally localized in this or another state when (1) his employer has a place of business in this or such other state and he regularly works at or from such place of business, or (2) if clause (1) foregoing is not applicable, he is domiciled and spends a substantial part of his working time in the service of his employer in this or such other state;... Section 85.71(1) is clearly inapplicable to claimant. His employment is not principally localized in the State of Iowa and employer has not actively engaged in doing business in Iowa, beyond pursuing a limited number of sales opportunities. The employer is incorporated under the laws of the State of Minnesota and the business of the employer is principally localized in Minnesota with its' office located in Minneapolis, Minnesota. Domicile alone cannot confer subject matter jurisdiction. Section 85.71(3), likewise, will not confer this agency with jurisdiction over claimant's claim because claimant's employment is not principally localized in another state. Section 85.71(4) on its face, is inapplicable to claimant's situation. The place of contract or hiring becomes significant "only when the employment is not principally localized in any state, the law of the state where the employment is principally local ized is not applicable to the employer, or the employment is out side the United States." Wentz, Inc., at 500. Claimant's employment is not principally localized in any state. Claimant was given assignments to travel throughout the United States as a consultant for Jet Edge. Claimant spent little or no time in Minnesota and claimant was expected to work wherever he was assigned. However, the parties dispute whether claimant was hired by Jet Edge in Minnesota or Iowa. Defendants contend that Page 6 claimant was hired in Minnesota at the office of the employer. A confirmation letter was sent from the employer representative to claimant on September 25, 1986, confirming a telephone conversa tion on September 24, 1986. The letter states, in pertinent part: "Confirming our discussion of September 24, we are hiring you effective October 6, 1986..." (Ex. D, p. 52) Defendants con tend that this confirmation letter simply confirms the hiring which had already occurred in Minnesota. It is defendants' con tention that claimant verbally accepted Mr. W. Hall, Sr., former president of Jet Edge, offer of employment while present in Mr. Hall's office in Minneapolis, Minnesota when he interviewed for the job. Claimant became aware of Jet Edge through his father, who was active in the waterjet industry and involved in a project in Minneapolis at the time of the interview. Claimant's version is that he was introduced to Mr. Bill Hall, Sr., by his father who had approached Mr. Hall for a sales job. He accompanied his father to Mr. Hall's office and engaged in a casual conversation regarding employment with Jet Edge. Three or four weeks later, Mr. Hall called claimant and asked him to come to Minneapolis for an interview. Mr. Hall had already determined what he wanted to pay claimant and what benefits he would receive. He also had him drive the brand new company truck because this truck was avail able to the person who would fill the job opening for which claimant was being recruited. At the end of the conversation, Mr. Hall had offered claimant employment but claimant stated that he first had to confer with his wife. Upon his return from Minneapolis, he discussed it with his wife and they agreed that he would accept Mr. Hall's offer of employment. Claimant then called Mr. Hall and informed him of his decision. He acknowl edged receipt of Mr. Hall's letter dated September 25, 1986, and stated that he signed one copy and returned it to Mr. Hall. How ever, he could not remember if he signed the copy in Charles City, Iowa or in Minnesota. He also remembers that he completed the job application after he had started work. He remembers that he signed the contract agreement after the phone conversation with Mr. Hall. He acknowledged that it is possible that both signings could have been done in Minnesota. However, he was cer tain that he agreed to accept the offered employment when he called Mr. Hall from Iowa after conferring with his wife. Obviously, there is a difference of opinion between claimant and employer as to when claimant actually accepted the offer of employment from Jet Edge. Defendants, through Irving R. Colacci, general manager, state that "Mr. Molitor verbally accepted Mr. Hall's offer of employment while present in Mr. Hall's office in Minneapolis. The confirmation letter dated September 25, 1986, was a courtesy letter formalizing the terms already offered and accepted." (Ex. G) Claimant testified that he did not accept employment at the time of his interview with Mr. Hall but instead telephoned his acceptance from his home in Iowa. Claimant's tes timony is uncontroverted and credible. Therefore, the under signed accepts his version of the events which transpired sur rounding the offer and acceptance of employment with Jet Edge. This agency has held that a contract is deemed to have been Page 7 made where the final assent is given. When offer and acceptance of a contract is made by telephone, the contract comes into exis tence in the place where the offeree used the telephone. Hegge v. Pittsburg-Des Moines Steel Company, File No. 712121 (Appeal Decision September 28, 1984). Claimant gave his assent to the offer of hire made by Mr. Hall from his home in Iowa. Therefore, claimant was working under a contract entered into in the State of Iowa and the Iowa industrial commissioner has subject matter jurisdiction in this proceeding. The next issue to be determined is whether claimant's injury on December 2, 1988, is a cause of permanent disability. If so, the parties have stipulated that such disability is an industrial disability to the body as a whole. The claimant has the burden of proving by a preponderance of the evidence that the injury of December 2, 1988, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). A treating physician's testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. Weight to be given testimony of a physician is a fact issue to be decided by the industrial commissioner in light of the record the parties develop. In this regard, both parties may develop facts as to the physician's employment in connection with litigation, if so; the physician's examination at a later date and not when the injuries were fresh; his arrangement as to compensation; the extent and nature of the physician's examination; the physician's education, experience, training, and practice; and all other fac tors which bear upon the weight and value of the physician's tes timony. Both parties may bring all this information to the attention of the factfinder as either supporting or weakening the physician's testimony and opinion. All factors go to the value of the physician's testimony as a matter of fact not as a matter of law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Page 8 Functional impairment is an element to be considered in determining industrial disability which is the reduction of earn ing capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inabil ity to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. 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 proportion ally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifi cations 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 arriv ing 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, moti vation - 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 disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). The record indicates that claimant received temporary total disability benefits from December 5, 1989 through January 22, 1989, at the rate of $358.93 per week under the Minnesota Workers' Compensation Act. The parties do not dispute that claimant suffered a back Page 9 injury on December 2, 1988, while servicing a company machine in Louisville, Kentucky. On December 5, 1988, claimant saw Dr. Ercolani with complaints of back pain without radiation into his leg or foot (Ex. E1, p. 27). We was taken off work and advised to limit his activities. Dr. Ercolani released claimant to return to full duty on January 23, 1989 (Ex. E2, pp. 12-15). Claimant testified that he was given a 50 pound lifting weight restriction. Instead of returning to work, claimant collected unemployment compensation benefits and did some consulting work at the same time. On April 25, 1989, claimant saw Dr. Ercolani. His progress notes state that he "has had recurrence of back pain /c lat. shift 10d. ago Saw chiropractor whom pt. thought might have made it worse. Nevertheless, when he quit the chiro he gradually got better. However because of the radiating pain into the R leg, he was worried that something more serious than a "strain" is pre sent. (Ex. E2, p. 7) Dr. Ercolani ordered a CT scan which showed multi-level degenerative disc disease from L2-3 through L5-Sl and several disc herniations throughout those levels. It was Dr. Ercolani's opinion that the etiology of claimant's injury goes way back even prior to the December 1988 injury in which he was lifting some heavy parts. He opined that "I think it is quite likely that that certainly contributed to his current prob lems but I don't think it is the whole story." (Ex. E2, p. 8) Dr. Ercolani stated that claimant had reached maximum medical improvement on June 2, 1989, and gave him an 18 percent impair ment to the body as a whole due to his multi-level lumbar disc herniations. (Ex. E2, p. 26) Dr. Ercolani advised claimant to be cautious about performing heavy work but imposed no other restrictions. Claimant last saw Dr. Ercolani on June 2, 1989, however, he continued to receive therapy (Ex. E4). On July 30, 1990, employer referred claimant to Dr. Boardini for examination. He disagreed with Dr. Ercolani's assessment that the CT scan showed large disc herniation and stated that lumbosacral spine x-rays taken at the time of his examination showed no abnormalities whatsoever. He indicated that in view of the negative findings, neither a permanent partial impairment or specific work restric tions are warranted (Ex. E3, pp. 1-2). After carefully considering the total evidence in this case, the undersigned concludes that claimant has a permanent back impairment which is causally related to his December 2, 1988, injury. This assessment was made by Dr. Ercolani, claimant's treating physician, after reviewing the results of a CT scan taken on May 2, 1989. Dr. Ercolani indicated that the degenera tive changes present on the CT scan were probably present prior to the December 1988 injury, however, this condition was aggra vated when claimant had to lift some heavy parts during the course of his employment. 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 Page 10 Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disabil ity 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). Dr. Ercolani indicated that claimant reached maximum medical improvement on June 2, 1989. A final diagnosis of multi-level lumbar discs herniations at L2-3, L3-4, L4-5 and L5-Sl, resulting in spinal stenosis, severe at L4-5, was made. Dr. Ercolani assigned an 18 percent impairment to the body as a whole and indicated that claimant is medically unable to resume his former employment (Ex. E2, p. 26). He indicated claimant should avoid work involving heavy lifting, frequent bending and activities known to be associated with low back strains (Ex. E2, pp. 8-9). Defendants argue that if, in fact, claimant has a permanent back impairment, it is due to an intervening injury in April 1989, unrelated to work. Claimant testified that he twisted his back when he stepped out of the shower. This argument is without merit. It is inconceivable that such a minor incident could have caused multi-level lumbar disc herniations. In making the above determination, the undersigned has care fully considered assessments made by physicians who have treated and/or examined claimant. Dr. Ercolani examined claimant at the time of the hearing and followed him through June 2, 1989. Dr. Boardini saw claimant on one occasion and, according to claimant, examined him for about 10 minutes. Accordingly, Dr. Boardini's assessment is not entitled to significant weight and considera tion. Claimant has clearly demonstrated that he sustained an industrial disability as a result of the injury on December 2, 1988. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earn ing capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inabil ity to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, supra. Claimant is 34 years old and was 31 at the time of the injury. He completed the eleventh grade of school and does not have a GED certificate. He worked at various times as a carpen ter, lead man, foreman, heavy equipment operator, fabrications foreman, construction supervisor and water jet technician and consultant. Claimant's entire work history revolves around heavy equipment. In 1988, his gross income was $26,323 and in 1989 was $20,269 (Exs. 3-4). Claimant's income was reduced in 1990 due to his inability to find a job until July when he was hired as a consultant by Mr. Beadle, owner/operator of a Jet Edge Equipment Company. Claimant testified that he earns $600 a week, however, he performs no carpentry or manual labor which reduces his abil ity to earn more money. Claimant testified that he is limited in his ability to lift, bend, stoop, shovel, twist and turn. He Page 11 stated he cannot work as a carpenter, heavy equipment operator or bartender. He is limited in his ability to sit more than two hours at a time and repetitively lift and carry. Claimant has restrictions which preclude him from obtaining employment in the area of the job market where he has the most experience. Never theless, claimant is a highly motivated individual and has actively sought and obtained employment. The evidence clearly establishes that claimant has suffered both a loss of earnings as a result of this injury as well as a loss of earning capacity. Considering then all the elements of industrial disability, it is determined that claimant has established a permanent partial dis ability of 25 percent for industrial purposes entitling him to 125 weeks of permanent partial disability benefits. order THEREFORE, IT IS ORDERED: 1. That defendants pay to claimant seven point two-eight-six (7.286) weeks of healing period benefits for the period from December 5, 1988 through January 23, 1989, at the stipulated rate of three hundred forty-two and 88/l00 dollars ($342.88) per week. 2. That defendants pay to claimant one hundred twenty-five (125) weeks of permanent partial disability benefits at the stip ulated rate of three hundred forty-two and 88/l00 dollars ($342.88) per week commencing January 24, 1989. 3. That defendants receive full credit for all disability benefits previously paid. 4. That accrued benefits shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. 5. That defendants pay costs pursuant to rule 343 IAC 4.33. 6. That defendants file claim activity reports as requested by the agency pursuant to rule 343 IAC 3.l. Signed and filed this ____ day of May, 1991. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Page 12 Copies To: Mr. Roger L. Sutton Attorney at Law 119 N Jackson St Charles City IA 50616 Mr. Harry W. Dahl Attorney at Law 974 73rd St Suite 16 Des Moines IA 50312 1802; 1803; 2301 Filed May 30, 1991 JEAN M. INGRASSIA before the iowa industrial commissioner ____________________________________________________________ : JAMES D. MOLITOR, : : Claimant, : : vs. : : File No. 931314 JET EDGE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : SAFECO INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2301 This is a claim for permanent disability benefits under Iowa Workers' Compensation Law. Claimant previously paid seven weeks of temporary benefits under the Minnesota Workers' Compensation Act. Defendants argue lack of subject matter jurisdiction stating that claimant's only contact with Iowa is his domicile. Claimant found to be an employee working under a contract of hire made in Iowa and engaged in employment not principally localized in any state. Iowa Code section 85.71(2). Agency precedent that when offer and acceptance of a contract is made by telephone, the con tract comes into existence in the place where the offeree used the telephone. Hegge v. Pittsburg-Des Moines Steel Company, File No. 712121, (Appeal Decision filed September 28, 1984). 1802; 1803 Claimant awarded 7.286 weeks of healing period benefits and 25 percent permanent partial disability benefits due to multi-level degenerative disc disease. Claimant had preexisting degenerative lumbar changes exacerbated by a work-related injury. Claimant's treating physician gave an 18 percent impairment to body as a whole. Consulting physician found no permanency after a 10 minute examination. Greater weight given to claimant's treating physician. Claimant 31-year-old, completed eleventh grade of school and manual work background. Reduction in earning capacity and earnings. Claimant highly motivated and currently works within his restrictions. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RAYMOND J. FELDPAUSCH, : : Claimant, : File Nos. 931316 : 931317 vs. : : A P P E A L ALUMINUM COMPANY OF AMERICA, : : 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 August 9, 1991, is affirmed and adopted as the final agency action in this case with the following additional analysis. Claimant asserts that the deputy erred in holding that claimant failed to give timely notice of his January 18, 1988 work injury. Claimant contends that he was unaware of the seriousness of his condition until after the 90 day notice period had run. The time period for notice or claim does not begin to run until the claimant, as a reasonable man, should recognize the nature, seriousness and probable compensable character of his injury or disease....The reasonableness of the claimant's conduct is to be judged in the light of his own education and intelligence. Robinson v. Department of Transp., 296 N.W.2d 809, 812 (Iowa 1980). Claimant worked for the defendant-employer since 1953. Claimant testified that he is aware of the procedure to report a work injury. In fact, claimant had reported a number of injuries over the years. In January 1987, claimant reported experiencing pressure numbness in his left thumb from using an Allen wrench. (Claimant's exhibit 5, page 20) Surely a reasonable person in claimant's position with claimant's knowledge would have reported an injury which persisted for a number of months. Even if claimant gave timely notice of his work injury, he failed to prove by a preponderance of the evidence a causal connection between his work injury and his permanent condition. Daniel B. Johnson, M.D., claimant's treating physician, gave equivocal testimony on the issue of causal connection. Page 2 Furthermore, even if Dr. Johnson's opinion on casual connection is accepted, claimant failed to prove that he sustained a compensable work injury. All of the objective test results were normal indicating that claimant did not suffer a permanent injury and Dr. Johnson's impairment rating must be rejected. Dr. Johnson wrote: "In my opinion the AMA guidelines for impairment ratings does not address the issue of chronic pain without any other disabilities adequately. In my opinion, Mr. Feldpausch has about a 10% impairment rating of the total body related to his chronic low back pain." (Defendant's ex. A, p. 31) Pain that is not substantiated by clinical findings is not a substitute for impairment. Waller v. Chamberlain Manufacturing, II Iowa Industrial Commissioner Report 419, 425 (1981); Godwin v. Hicklin G.M. Power, II Iowa Industrial Commissioner Report 170 (1981). The impairment rating provided by Dr. Johnson appears to be based strictly on claimant's subjective complaints of pain and, therefore, is rejected. For these reasons and those in the proposed decision, it is determined that claimant failed to give timely notice pursuant to Iowa Code section 85.23. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of November, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Michael W. Liebbe Attorney at Law 116 East 6th Street P O Box 339 Davenport IA 52805 Mr. Thomas N. Kamp Attorney at Law 600 Davenport Bank Building Davenport IA 52801 5-2401; 5-1108 Filed November 25, 1991 BYRON K. ORTON BJO before the iowa industrial commissioner ____________________________________________________________ : RAYMOND J. FELDPAUSCH, : : Claimant, : File Nos. 931316 : 931317 vs. : : A P P E A L ALUMINUM COMPANY OF AMERICA, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 5-2401 Claimant asserts that the deputy erred in holding that claimant failed to give timely notice of his January 18, 1988 work injury. Claimant contends that he was unaware of the seriousness of his condition until after the 90 day notice period had run. Claimant worked for the defendant-employer since 1953 and was aware of the procedure to report a work injury. In fact, claimant had reported a number of injuries over the years. A reasonable person in claimant's position with claimant's knowledge would have reported an injury which persisted for a number of months. 5-1108 Even if claimant had given timely notice of his work injury, he failed to prove by a preponderance of the evidence a causal connection between his work injury and his permanent condition. Furthermore, even if claimant proved causal connection, he failed to prove that he sustained a compensable injury. All of the objective test results were normal indicating that claimant suffered no permanent injury. The impairment rating provided by claimant's treating physician appears to be based strictly on claimant's subjective complaints of pain and, therefore, is rejected. Pain that is not substantiated by clinical findings is not a substitute for impairment. Waller v. Chamberlain Manufacturing, II Iowa Industrial Commissioner Report 419, 425 (1981); Godwin v. Hicklin G.M. Power, II Iowa Industrial Commissioner Report 170 (181). Page 1 before the iowa industrial commissioner ____________________________________________________________ : RAYMOND J. FELDPAUSCH, : : Claimant, : : File Nos. 931316 vs. : 931317 : ALUMINUM COMPANY OF AMERICA, : : A R B I T R A T I O N Employer, : Self-Insured, : D E C I S I O N Defendant. : : ___________________________________________________________ statement of the case This case came on for hearing on July 18, 1991, in Davenport, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of two alleged injuries, one occurring on January 18, 1988 and the other on May 15, 1988. The record in the proceeding consists of the testimony of claimant, claimant's wife, Thomas Gillum, Joan Snyder and Kevin O'Brien; claimant's exhibits 1 through 6; and defendant's exhibit A, pages 1 through 53. issues In both cases the issues for resolution are: 1. Whether claimant's injuries on January 18, 1988 and May 15, 1988 arose out of and in the course of his employment; 2. Whether there is any causal connection between claimant's alleged disability and the respective injuries; 3. The nature and extent of claimant's disability and entitlement to disability benefits; 4. Whether claimant gave timely notice under Iowa Code section 85.23; and 5. Whether claimant is entitled to Iowa Code section 85.27 medical benefits, causal connection. Page 2 findings of fact The undersigned deputy having heard the testimony and considered all the evidence, finds that: Claimant is 61 years old and has worked as a roll grinder for defendant employer for the last nineteen years. He has worked for defendant employer beginning in 1953. Claimant described the grinder process and what he does at this position. He explained his hours of work, his hourly pay and the overtime procedure for extra hours worked. He said he made $51,541 gross in 1987, $43,355 in 1988, $42,819 in 1989 and $45,444 in 1990. He said his health was good as of January 1, 1988, and he was seeing no doctor. He testified that on January 18, 1988, he was working on a new cold mill having different bearing chokes. He explained the bolts and what he had to do to loosen the 450 pounds of torque pressure. He said he was using a 36 to 40 inch wrench to untighten several bolts. He indicated he suddenly felt a tightness and developed a pain in his groin-right leg that morning. He worked the 11:00 p.m. to 7:00 a.m. shift. He did not report the injury as he thought it would go away even though he knew he was to report all incidents. He wasn't sure what happened. In February, March and April, claimant indicated he wasn't really having problems but knew it was there. He still thought it would go away. In his job claimant can switch around at six week intervals as to different positions. In May 1988, claimant was back on the cold mill and his pain went from the groin to the knee. Claimant emphasized that this was a new pain episode and that it occurred May 8, 1988 and not May 15, 1988, as plead and as indicated on the prehearing report. Claimant indicated he just realized this different date yesterday (July 17, 1991) when he was going over the medical bills of Dr. Michael B. McCormick and realized the date could not be May 15, 1988. He had seen the doctor on May 11, 1988 because he began feeling the pain in his right groin. Claimant said once he made the mistake he told everyone thereafter that he was injured on May 15, 1988. Claimant reported this incident to the defendant employer and was sent to Daniel B. Johnson, M.D., a neurologist who ran tests. Claimant testified as to his medical visits which included three trips to Mayo Clinic. Claimant said his pain was in his right groin area in January 1988 and in May it went from his groin to his knee and eventually across his back through both legs and feet. He indicated his feet felt like he was walking on rocks. Claimant said he continued to work seven days a week but did not have to work every Saturday or Sunday. He indicated that overtime work goes toward his retirement. Claimant indicated he hasn't refused work but indicated he started turning down casual hours, which type of hours he explained, but continued to work seven days a week. No one has told claimant not to work extra hours. Claimant contends he lies on the floor when he goes home as he cannot do anything. On cross-examination, claimant affirmed again that he Page 3 did not tell anyone he was hurt on January 18, 1988. He acknowledged that when he reported an injury on May 17, 1988, he said he was injured in January or February 1988. Claimant did not say he was injured in May 1988. Claimant indicated he went over all of his records and agreed there is nothing in the records that show an injury to the claimant on May 8 or May 15, 1988. He also agreed that no doctor said his feet or back problems are the result of a May 15, 1988 work injury. Claimant's attention was called to the doctor's notes on May 11, 1988, where claimant indicated he noticed some pain since a CT scan a year ago. Claimant's attention was called to defendant's exhibit A, page 12, dated June 6, 1988, in which he related his problems to an angiogram a couple of years ago. He denied any specific incident that led to his problem. Claimant's attention was called to defendant's exhibit A, page 23, in which Dr. Johnson referred to Mayo Clinic's conclusion that they could not find a cause to claimant's conditions. Claimant's attention was called to defendant's Exhibit A, page 41, in which claimant obviously gave a history involving a January 1988 onset of groin problems. He did not deny giving this history. Claimant was asked questions as to his other medical reports similar to those referred to above. It is not necessary to go into any further detail in light of this case and ultimate decision. Claimant was extensively questioned on cross- examination as to his hours and the impression he has that he is turning down hours even though he is still working eight hours a day, seven days a week. It actually appears after this questioning that, in fact, less overtime was available so this also affected his overtime income. Martha Feldpausch, claimant's wife, testified but her testimony was not of any material significance as to this decision. Joan Snyder, a registered nurse and an employee of defendant for the last nine and one-half years, testified that if claimant notified the employer of an injury in January or February 1988, it would be in the records. She worked the same shift as the claimant, namely, 11:00 p.m. to 7:00 a.m. Kevin O'Brien, an employee of defendant and administrator of the workers' compensation department at the time of claimant's alleged May 1988 injury said the first time he was advised that claimant suffered a work injury on May 15, 1988 was when he was served with a petition in January 1990. He indicated yesterday was the first time he knew claimant was now claiming a May 8, 1988 work injury instead of a May 15, 1988 work injury. Defendant's Exhibit A contains several medical reports to which defendant's attorney repeatedly referred on cross-examination of claimant. They show claimant was Page 4 referring to a January or February 1988 injury. Most notations refer to a January 1988 injury. On May 11, 1988, claimant's medical records show that claimant referred to some pain since a CT scan five years ago. He denied any history of weakness or past weakness of trauma (Def. Ex. A, p. 10). The undersigned notes claimant's petition alleged a back injury on January 18, 1988. It is of interest to the undersigned that it would seem that on this May 11, 1988 appointment with the doctor he would surely have referred to his pain or trauma history if there were such on January 18, 1988. Claimant denied any specific incident that led to his problem. Claimant initially related his problem to an angiogram in 1986 (Def. Ex. A, p. 12). Claimant had a normal myelogram and CT scan in August 1988 and a normal MRI scan of the lumbar spine in September 1988. Dr. Johnson could not come up with the cause of his symptoms (Def. Ex. A, pp. 19-20). Mayo Clinic also could not find a cause (Def. Ex. A, p. 23). Daniel B. Johnson, M.D., a neurologist, testified through his deposition on August 15, 1990 (Claimant's Exhibit 6). One will note that in the deposition the respective pages of the deposition had been renumbered as to the number of the deposition page as it fits in the sequence of claimant's total exhibits. An example, page one of the deposition is, in fact, page 31 of claimant's exhibit 6. Any number hereafter referred to as to exhibit 6 will refer to the exhibit number and not the number of the deposition page given at the original time the deposition was taken. The undersigned finds that Dr. Johnson's deposition is confusing in many respects when trying to determine exactly what he is concluding on a consistent basis and then trying to coordinate his testimony with what he put in various reports or letters. Dr. Johnson testified that his first visit with claimant was on May 31, 1988, in which claimant gave him a referral slip from a Dr. Casta indicating claimant sustained a low back injury in January 1988. The doctor explained his treatment, tests and results. He said he did not know the cause of claimant's low back problem then nor does he today. He then said he felt claimant's radiculopathy bilaterally was probably related to his injury at work which claimant described temporarily related with the torque wrench, but couldn't find what was actually causing the injury to the nerve. The doctor said within a degree of medical certainty that probably the low back condition that he found and treated originally was caused by the incident claimant described at work (January 1988) (Cl. Ex. 6, p. 47). The doctor then said that on August 4, 1988, something did develop which he didn't recognize originally, namely, neuropathy (Cl. Ex. 6, 49-50). He then ran many tests (Cl. Ex. 6, pp. 50-52). The doctor said he then sent claimant to Mayo Clinic as he was unable to find the cause of claimant's neuropathy (Cl. Ex. 6, p. 52). The doctor then acknowledged he put a 25 pound lifting Page 5 restriction on claimant in December 1988 because of claimant's low back problem and not because of his neuropathy (Cl. Ex. 6, p. 26). The doctor then indicated that another EMG and MRI scan in 1989 were normal. Later in his deposition the doctor said he did not know the anatomic cause of claimant's low back and radicular pain that could resolve like it did before (Cl. Ex. 6, p. 61). The doctor said claimant's neuropathy cleared up by October 9, 1989 (Cl. Ex. 6, p. 62). The doctor then indicated claimant complained of being impotent and claimant developed urinary incontinence. He then referred claimant to Mayo Clinic again, which referral he indicated was not very fruitful. He said the clinic felt claimant had non-insulin dependent diabetes and psycogenic impotence. He did not agree with their diagnosis, especially as to diabetes. He said none of these problems were involved with any work injury. He did later indicate that claimant's feet problems are a sign of a diabetic situation. The doctor felt claimant was going to have some weight restrictions, probably 25 pounds, because of his chronic back pain. He believed claimant had a low back condition since January 1988. On cross-examination, the doctor said he did know if claimant's back problems were permanent and he could not find anything wrong with claimant that would be causing the back problem insofar as objective tests are concerned (Cl. Ex. 6, p. 69). He said an EMG showed nerve irritation but he couldn't find out what was causing claimant's nerve irritation. When asked what led him to believe the nerve irritation was caused by an incident at work, the doctor said it is based strictly on the history given by the claimant (Cl. Ex. 6, p. 70). The doctor then was referred to a letter of April 1989 in which he said the low back problems was essentially resolved. In April 1989, Dr. Johnson opined claimant's disability at that time appeared to be from his neuropathy which does not appear to be work related (Cl. Ex. 6, p. 87). He indicated that claimant initially seemed to have a low back problem which stemmed from a work injury but this seems to have essentially resolved, however. (Def. Ex. A, p. 25) In May 1989, claimant had a normal EMG and NCV of the right lower extremity and right lumbar paraspinals. In November 1989, Dr. Johnson opined claimant's chronic low back pain is of unclear etiology (Def. Ex. A, p. 30). He opined a 10 percent impairment to claimant's body as a whole. In December 1988, Mayo Clinic found no known etiology of his problems. The Mayo Clinic report of May 8, 1990 (Def. Ex. A, p. 41-41) found no objective findings relative to an injury. Additionally, claimant only referred in his history to a January 1988 onset of right groin pain. Page 6 Claimant alleges a January 18, 1988 injury. Overwhelming evidence shows that claimant believed that he incurred an injury on that date and consistently referred to that date in many instances as he met with doctors. There is no evidence that claimant gave notice of this injury to defendant employer in compliance with section 85.23 of the Iowa Code and the undersigned so finds. There is no evidence that defendant had actual notice of an injury. Claimant was not off work because of this alleged injury. The statute is clear. This above finding disposes of this January 18, 1988 alleged injury and there is no necessity to go into detail as to any other issues. The undersigned will consider one other issue regarding this alleged injury as to causal connection. Claimant has the burden of proof to show, if he had an injury that arose out of and in the course of his employment and gave timely notice or that the employer had actual notice of injury, that there is a causal connection between his alleged impairment or disability and the injury in question. Claimant has not sustained his burden as to causal connection. Dr. Johnson's deposition is confusing as to what would appear to be confusing conclusions, inconsistent and back and forth statements as far as what he really feels. It all boils down to the doctor relying strictly on what the claimant told him as to any ultimate causation opinions he rendered. Dr. Johnson began practicing in the Quad Cities area in 1984 and has four years experience as of 1988. The undersigned believes this reflects in his testimony. The doctor referred claimant to Mayo Clinic and claimant went there on more than one occasion. The doctor obviously made this referral to get more expertise conclusions from specialists with more experience. Mayo Clinic did not find an etiology or cause for claimant's complaints other than to seem to indicate that he does have a non-insulintcw dependent diabetic condition and a psychogenic impotence and a neurotic or reactive depression (Def. Ex. A, pp. 41-42). There is no dispute that regardless of other facts, these conditions are not work related in any respect. Claimant's history given to the Mayo Clinic also refers to a January 1988 alleged injury. The undersigned finds that claimant has failed in his burden to show that his alleged disability is causally connected to a January 18, 1988 injury. The undersigned finds there is no necessity to go into any of the other issues because of the nature of this decision. Claimant takes nothing from his alleged January 18, 1988 injury. Claimant alleges a May 15, 1988 injury but acknowledges that in his history given, he has not referred to this alleged injury but refers to a January or February 1988 injury. In looking at the record as a whole, it appears that claimant may have realized his problem concerning his lack of notice of a January 18, 1988 injury and is stretching the factual situation so as to try to relate his problems now to a May 15, 1988 or May 8, 1988 injury. Claimant rationalized that it wasn't until approximately the Page 7 day before the hearing that he determine that his injury in May for which he brought the action was not, in fact, incurred on May 15, 1988, but was, in fact, incurred on May 8, 1988. His rationale being that he could not have incurred an injury after he saw a doctor for that alleged injury. This makes sense to the undersigned. There is no medical evidence that substantiates claimant's claim that he was injured on May 8 or 15, 1988, and if anything, what he was suffering on those dates was a residue of some sort from occurrences prior thereto, possibly, from a January 1988 alleged injury. Claimant has failed in his burden to show that he incurred an injury on May 8 or 15, 1988 that arose out of and in the course of his employment. Claimant has had some prior problems and in his history had referred to events in 1986 and in 1983 as far as back problems, one being related to what he thought was an angiogram and another subsequent to a CT scan. In his history in May 1988 to the doctor, he indicated he had had no prior injury or trauma and yet he comes into this hearing knowing full well that he had at least an alleged injury in January 1988. The Mayo Clinic, which is the expert in this case and to which claimant's treating doctor referred the claimant to try to determine the etiology of claimant's problems, did not find any causation between claimant's alleged low back injury and his May 8 or 15, 1988 alleged injury. As mentioned earlier, they also found no etiology or causation from or related to a January 18, 1988 alleged injury. The greater weight of medical testimony and, particularly, the most reliable expert testimony of Mayo Clinic does not support claimant's contentions regarding this May 1988 alleged injury. The undersigned finds that claimant has failed in his burden to show any causal connection between the alleged May 8 or 15, 1988 alleged work injury and any low back problems or impairments or disability for which he complains. The undersigned also finds that claimant did not incur an injury on May 8 or May 15, 1988 which arose out of and in the course of his employment. The undersigned further finds that there is no reason to resolve any other issues that may have been involved in this case as they are moot in light of the above findings. Claimant shall take nothing as a result of the alleged May 8 or 15, 1988 injuries. Page 8 conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received injuries on January 18, 1988, May 8, 1988 or May 15, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injuries of January 18, 1988 and May 8, 1988 or May 15, 1988 are causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. Regarding claimant's alleged injury of January 18, 1988, Iowa Code section 85.23 provides: Unless the employer or the employer's representative shall have actual knowledge of the occurrence of an injury received within ninety days from the date of the occurrence of the injury, or unless the employee or someone on the employee's behalf or a dependent or someone on the dependent's behalf shall give notice thereof to the employer within ninety days from the date of the occurrence of the injury no compensation shall be allowed. It is further concluded that: Claimant failed to give notice, as provided by Iowa Code section 85.23. As to his alleged January 18, 1988 injury, the employer did not have any actual acknowledgement of an injury to the claimant occurring on January 18, 1988. Claimant has failed to sustain his burden as to an alleged injury arising out of and in the course of his employment on May 8 or May 15, 1988. Page 9 Claimant has failed in his burden to show that his alleged injury, impairment or disability is causally connected to either a January 18, 1988, May 8, 1988 or May 15, 1988 alleged injury. Any other issues set out by the parties as to the respective injuries are moot in light of the above findings and conclusions. order THEREFORE, it is ordered: That claimant takes nothing as to the January 18, 1988 alleged injury (File No. 931316). That claimant takes nothing as to his alleged May 8, 1988 or May 15, 1988 injury (File No. 931317). That claimant shall pay the costs of this action, pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of August, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Michael W Liebbe Attorney at Law 116 E 6th St P O Box 339 Davenport IA 52805 Mr Thomas N Kamp Attorney at Law 600 Davenport Bank Bldg Davenport IA 52801 5-1100; 5-1108; 5-2800 Filed August 9, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : RAYMOND J. FELDPAUSCH, : : Claimant, : : File Nos. 931316 vs. : 931317 : ALUMINUM COMPANY OF AMERICA, : : A R B I T R A T I O N Employer, : Self-Insured, : D E C I S I O N Defendant. : : ___________________________________________________________ Claimant took nothing from either injury. 5-2800 Claimant failed to give notice under 85.23 as to January 18, 1988 alleged injury. 5-1108 No causal connection found as to January 18, 1988 alleged injury. 5-1100 Claimant failed to prove an injury arose out of and in the course of his employment. 5-1108 Claimant failed to show causal connection as to his alleged May 8, 1988 or May 15, 1988 injury. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LINDA CALLISON, : : Claimant, : : vs. : : File No. 931324 SEARS CREDIT CENTRAL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ALLSTATE INS. CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Linda Callison against her former employer, Sears Credit Central, and its insurance carrier, Allstate Insurance Company. Callison alleges that she sustained an emotional injury as a result of stress at her work place. The issues to be determined are whether Callison sustained an injury on or about February 10, 1988 which arose out of and in the course of her employment; whether any alleged injury is a proximate cause of any disability she has experienced; and, whether the medical expenses which she has incurred in treating her condition are the liability of the employer. Claimant seeks a running award of healing period compensation. According to the prehearing report, the employer is entitled to credit for disability income, medical and hospitalization expense payments. The case was heard and fully submitted at Des Moines, Iowa on January 22, 1991. The evidence in the proceeding consists of testimony from Linda Callison, Sandra Butler and Keith Wise. The record also contains jointly offered exhibits 1 through 8. 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. Linda Jean Callison is a 52-year-old married woman who lives at Norwalk, Iowa. Linda is a 1956 graduate of Newton High School where she had placed emphasis in the office practice core area. During the time span of 1976-1979, she took some business classes at the area community college. She has no advanced degrees or certificates from any of her post-high school course work. Page 2 Linda commenced employment with the Maytag Company working as a secretary in the rubber department while she was still in high school. She remained in that employment for approximately one year after completing high school. At that time, she got married and moved to Ames with her husband who was then a college student. While living in Ames, she performed waitress work for approximately a year. Linda did not obtain any employment while she and her husband lived in Des Moines following his completion of school. The family then moved to Storm Lake, Iowa. Initially, Linda performed seasonal work for the Dekalb Company where she was a foreman over work crews performing detasseling and also in the canning factory. She also operated machines in the canning factory. In approximately 1969, she became a secretary for the Storm Lake Police Department. Her duties included bookkeeping and radio operation. At that time, her husband was employed as a dispatcher for the Iowa State Patrol. It was felt that their jobs presented a conflict of interest and her employment with the city police department was terminated. In approximately November 1970, Linda obtained part-time employment with Sears at Storm Lake. Her job consisted of receiving catalog orders from four stores and then transmitting them by teletype to the Chicago catalog center. When Linda's husband was transferred to Des Moines in approximately June 1972, she obtained employment at the Wakonda Shopping Center Sears store performing teletype operation and unit control. Her duties included inventory control, receiving orders and a variety of other functions. Linda was then transferred to the Eastgate Sears store where her primary duty was office work, but she also performed floor sales and a variety of other duties. When the Eastgate store closed, she returned to the Wakonda unit and helped with the closing of that store. When the Wakonda store was eventually closed, she was then transferred to the Southridge store where she became head cashier and had control over all receipts and cash register accounts. She performed that position approximately four years until the cashier positions were eliminated. With the elimination of cashier positions, Linda was transferred to the Credit Central department at the Merle Hay store. Initially, she performed typing connected with requests from stores to increase the credit limit on customer charge accounts. She gathered data and provided it to a supervisor who made a decision on the request for increased credit limits. After a time, she was then given credit approval authority of her own and made the actual decisions regarding increase of credit limits. In approximately 1982, she was transferred to performing collection activity. Linda had been off work for ear surgery and, when she returned, she was placed into the collection position rather than her prior position. According to the employer's records, claimant became a collection correspondent on August 16, 1981 (exhibit 5, page 22). It is noted that the position is one which had duties Page 3 significantly different from her previous jobs with Sears. A more detailed description of claimant's work history is found in exhibit 6, at pages 5 and 6. In the collection position, she contacted customers whose accounts ranged from 30-120 days past due and attempted to make arrangements to get the bills paid. Linda was in that position for approximately one year and then was again off work for additional ear surgery. When she returned to work following the second ear surgery, she was assigned to work with uncollectible accounts. Her job was again to locate customers and attempt to get payments. Linda stated that she had no supervisor until 1986 or 1987 and that, during that same period of time, the record keeping system was changed from memo cards to a computer system. According to Linda, she was the only person in that department until the last few years. She related that, in June 1986 when the change to the computer system started, there were three people in the department consisting of herself, one part-time employee and one other full-time employee who was then off work on sick leave. When the change to the computer system was made, Linda was required to enter data from the memo cards into the computer system. She stated that she was responsible for performing most of the data entry and that at times the computer would not accept the data which she attempted to place in it. According to Linda, she was also required to perform her other usual collection work and that the computerization process doubled her work load. As a result, she fell behind in performing the actual collection activity. According to Linda, her supervisor had told her to give priority to entering data into the computer. Linda stated that, when she left employment on February 10, 1988, all the memo cards had still not been entered into the computer system. Linda stated that she had told a supervisor, Terry Stinson, that she was unable to handle all the work and that Stinson told her he would obtain help for her, but the help was never received. Commencing in May 1987, Linda was off work approximately four weeks for depression. She stated that, when she returned, her accounts were further behind because no one had processed them. According to Linda, from that point on she fell further and further behind. Linda complained that procedures were changed and by the time things began working smoothly under one procedure, those procedures were changed again. Linda stated that, commencing in October 1987, she was prohibited from speaking with other employees because her supervisor, Mr. Wise, had told her to "shut up." Linda stated that other employees were likewise not allowed to speak with her because she was so far behind in her work, but that they continued to come to her for guidance with problems. Linda stated that being prohibited from speaking with coemployees was a tremendous pressure during those last three months of her employment. Linda related that, during Page 4 the last few years, she had gone through eight different supervisors, all of whom had different ideas and procedures. According to Linda, Mr. Wise called her into the office frequently and criticized her for not getting caught up with her work. She stated that she received no help, only criticism. She also complained that the meetings, some of which ran as long as 3-4 hours, detracted from her ability to get her work completed. According to Linda, she had managed the litigated accounts including small claims court and bankruptcy, but in 1987 a new small claims desk was opened and that activity was performed by a different person. However, when the person did not know what action to take, she came to Linda rather than a supervisor for guidance. When initially moved into the credit department, Linda's performance was considered to be quite acceptable (exhibit 4, pages 200, 201, 206 and 207). Her performance was apparently not considered to be unsatisfactory until she was assigned actual collection work commencing in 1982. The employer's records show that claimant was considered to be deficient in early 1982 and again in 1983 due to medical absences, but that no adverse action was taken against her because the absences were for good reason (exhibit 4, pages 157, 210, 211, 212 213, 214, 216 and 217). The records also show a lack of productivity during that same period of time. It is not possible to determine how much of the lack of productivity was due to medical absences as opposed to inefficiency. In approximately October 1983, it was requested that her employment be terminated (exhibit 4, page 158). Linda continued to perform at a substandard level and it was again requested that her employment be terminated (exhibit 4, pages 161, 162, 165, 166, 208, 209 and 215). The names of claimant's supervisors during the preceding problems seemed to be C. D. Whitmer and also A. Bergo. A number of performance appraisal or review documents are found in exhibit 4 from pages 172 through 207. Some are undated and the period of time to which they refer cannot be determined. There appear to be no reports for the period of time running from late 1984 through 1987. The report at exhibit 4, page 80 appears to be signed by J. McCarty, Jr. The report dated February 5, 1988 is signed by W. K. Wise. Apparently the 1984 through 1987 time span is the period of which Linda described as having no supervisor. It cannot be determined if the lack of deficiency reports and unfavorable evaluations during the 1984-1987 span is a result of a lack of such reports being prepared due to a lack of having a supervisor or whether it indicates that she was performing adequately. It appears more likely, however, that reports were simply not made because the record contains no evaluations, favorable or unfavorable. Generally speaking, most of the reviews and evaluations which appear subsequent to claimant being placed in the collection correspondent position were unfavorable. The record does not show Linda Page 5 to have ever become fully proficient in the position of collection correspondent. The record shows that Linda Callison operated under a threat of termination of her employment due to her level of productivity for a number of years. Working under such conditions would be quite stressful. The record does not contain any clear explanation regarding why the termination process extended over a period of approximately six years. According to Keith Wise and Sandra Butler, Linda's work was substandard and remained substandard throughout the amount of time they had contact with her. It was planned to give Linda notice of termination of her employment on February 10, 1988 due to her lack of productivity. The plan was disrupted by her failing to come to work and seeking medical care. Instead of going to work on February 10, 1988, Linda, at her husband's insistence, sought medical treatment. Her physician, Robert J. Foley, M.D., found her to be depressed and restricted her from working. Linda has not since returned to employment at Sears. She has been treated by Dr. Foley, a general practitioner, and Rick D. Turner, M.D., a psychiatrist. She has been evaluated by psychiatrist Hector Cavallin, M.D. Claimant has also received treatment from Robert A. Straight, Ph.D., and Craig Butterfield, a psychotherapist. The first mention of depression in claimant's medical records is found in a note dated August 9, 1982 where it is indicated that claimant was unable to tolerate Ativan, a medication which had been prescribed for muscle contraction headaches, and that she had probable early depression (exhibit 1, pages 69 and 70). The next reference to depression appears at an entry dated May 19, 1987 when Dr. Foley took claimant off work for a month due to depression (exhibit 1, pages 50-54). Dr. Foley indicated that claimant had been disabled due to depression from May 19, 1987 through June 17, 1987 and released her to return to work effective June 18, 1987 (exhibit 1, page 26). According to the insurance claim form, it was indicated that Linda's symptoms had started in April 1987 (exhibit 1, page 22). Dr. Foley then resumed treating claimant's depression on February 10, 1988 when his notes indicated that she had depression which was recurrent, she was not improving and that she was disabled from working (exhibit 1, page 23). In another note, it is indicated that her symptoms appeared in January 1988 (exhibit 1, page 20). In a note dated October 27, 1988, Dr. Foley reported that Linda's depression is under good control and that she should have no problem with a five-year-old living in her home (exhibit 1, page 18). All of Dr. Foley's notes prior to November 21, 1988 refer to claimant's employment where the source or cause of her stress is mentioned. The note of November 21, 1988 is the first reference to the child custody suit in which she became involved. It is the first note which makes reference to any source of stress other than her employment. Page 6 Linda's granddaughter resided with her prior and subsequent to February 10, 1988. There were apparently no problems in that situation until October 1988 when the child's biological father came to visit and took action to obtain custody. Linda and her husband became involved in custody litigation. Part of the process included a home study which was performed by Craig Butterfield. According to Butterfield, he observed no signs of depression when he met with Linda in late 1988. It is noted that this was at about the same time that Dr. Foley indicated in a report that Linda's depression was under good control. In his report dated December 5, 1988, Butterfield indicated that Linda was having difficulty at work during 1987 and became unable to function on the job in February 1988 (exhibit 1, pages 116, 130, 138 and 139; exhibit 7, pages 5 and 6). Claimant initially lost the custody litigation and the granddaughter was placed with the biological father. After several months, however, the granddaughter returned to reside with claimant. The situation with the granddaughter is not presently a matter of concern for the claimant. Claimant had experienced grief and anxiety and reactive depression due to the loss of custody rights. She treated with Craig Butterfield for that situation (exhibit 7, pages 6-9, 12 and 22). Claimant was examined by psychiatrist Hector W. Cavallin, M.D., on August 2, 1988. In his report, he states that stress and difficulty at work resulted in Linda developing a major depressive disorder which has been treated appropriately, but that she remains depressed and limited. He felt that she was incapable of returning to her previous occupation due to the conflict which exists between Linda and her supervisor (exhibit 1, pages 142 and 143). Commencing in 1990, Linda began receiving treatment from psychiatrist Rick D. Turner, M.D. His notes indicate that claimant developed depression in the setting of work stresses involving computerization and change of supervisors. He felt that her condition had stabilized, but that she had residual symptoms related to a preexisting generalized anxiety disorder and aftereffects of the depressive illness consisting of loss of self-esteem due to being unable to work. He encouraged her to return to work at some place other than Sears (exhibit 1, pages 4-6). Linda has recently obtained part-time employment as a bookkeeper at a service station near her place of residence. She works approximately 20 hours per week. She seems to be getting along well in that position. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that she received an injury on February 10, 1988 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Page 7 The words "arising out of" refer to the cause or source of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The "arising out of" requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986). Aggravation of a preexisting condition is one form of compensable injury. 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). Linda Callison's claim is that emotional stress caused her to develop depression. Non-tramatically induced 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); School Dist. #1 v. Dep't of Indus., L. & H. R., 62 Wis. 2d 370, 215 N.W.2d 373 (1974); Desgranges v. Dep't of Human Services, file number 760747 (App. Decn. 1988). The work place must provide something more than merely the setting in which the symptoms of the emotional disorder arise. Newman v. John Deere Ottumwa Works of Deere & Co., 372 N.W.2d 199 (Iowa 1985). In this case, it is quite clear, as established by Drs. Cavallin and Turner, that stress at claimant's employment precipitated her depressive disorder. While Linda may have had a preexisting anxiety disorder, the record clearly establishes that she had several sources of stress in her work place after she was placed in the collection correspondent position in 1981. Linda was in a job which she seemed incapable of performing properly. Her statements that she had no problems prior to the installation of the computer in 1986 are simply inaccurate. Working as a debt collector was apparently a position for which Linda was not well suited. Since she was not well suited for the position, she did not perform well in the position. Her performance was understandably criticized by her supervisors. She was unable to make sustained significant improvement in her performance. When the depression became manifest, that situation further detracted from her ability to perform her job. The pivotal question in this case is whether the stresses to which Linda was subjected at her place of employment were out of the ordinary in comparison to the day-to-day emotional strain and tension which all employees must experience and which employees customarily encounter on a daily basis without suffering serious mental injury. Page 8 The evidence in this case does not establish, by a preponderance of the evidence, that Linda Callison was assigned an unreasonable amount of work. There is no evidence that she was humiliated, berated or otherwise publicly embarrassed. To the contrary, the evidence shows that she did not perform adequately. She was counseled in an attempt to improve her performance, but she did not improve. The stress of being unable to perform the amount of work required for one's position is certainly a substantial level of stress. It is not, however, a stress which, by itself, is unusual. The unusual part in this case is that the employer did not sooner take action to transfer Linda Callison to a different position or to terminate her employment. It extended over approximately six years. It is recognized that the work of being a debt collector is generally a highly stressful occupation in and of itself. There are many individuals who do not have the personality or aptitudes to work effectively as a debt collector. Linda Callison is apparently one of those individuals. Many individuals have the good judgment to extricate themselves from a position which they are unable to perform. In some situations, the change or transfer is accomplished through action taken by the employer. Neither of those things happened in this case. It is understandable that Linda Callison, after nearly two decades of employment with Sears, would not lightly choose to leave that employment. Once the depression began, she would have likely been impaired. Her performance likely would have deteriorated and she would have been impaired in making intelligent decisions regarding her job. The change to a computer caused added work and stress, though, by itself, it is not an unusual stress. When all the various stresses of Linda Callison's work at Sears are considered in combination, in particular the fact that she was not capable of performing the job and stayed in that job for six years, the fact that there was a change to computerization to which she did not readily adapt, and the fact that work as a debt collector is generally a high stress occupation, it is determined that the stresses experienced by Linda Callison were out of the ordinary in comparison to the stresses normally experienced on a day-to-day basis by all employees without experiencing emotional difficulties. It is therefore concluded that Linda Callison's depressive disorder is an injury which arose out of and in the course of her employment. Linda is entitled to recover healing period compensation commencing from the date the disability began, namely February 10, 1988, until the earlier of the three terminating events defined in Iowa Code section 85.34(1). On October 27, 1988, Dr. Foley reported that claimant's depression was under good control. His treatment notes dated October 10, 1988 show the depression to be fairly stable. It was at about this same period of time that Craig Butterfield, a psychotherapist, conducted an investigation Page 9 concerning the advisability of placing custody of the granddaughter with claimant and her husband. Through the course of that investigation Butterfield found no signs of depression. Claimant has not fully recovered from the depression and it is unlikely that she will ever fully recover. Her condition has been essentially stable, other than for the reactive depression associated with the custody litigation concerning her granddaughter. Linda has had difficulty in finding replacement employment. It can be expected that she will be somewhat fragile emotionally and any replacement employment will need to accommodate that emotional fragility. Her current employment seems to be appropriate in view of her education and background. She will probably do reasonably well in positions which do not involve high stress levels. Her hourly rate of earnings has diminished considerably when her employment with Sears is compared to her current employment. The weekly earnings are even further diminished in view of the fact that she is working only 20 hours per week. There is no good, reliable medical evidence in the record regarding whether or not claimant has the capacity to work more than 20 hours per week. In his report dated April 26, 1990, Dr. Turner stated that claimant has continued to be mildly anxious, particularly in regard to a number of stressors which were not related to the work stress. As indicated in the report, Dr. Turner encouraged her to return to work, but felt she could not work at Sears. He concludes that she was predominantly depressed for almost two and one-half years, but that, at the time of the report, her depression was in remission and he was encouraging her to return to work. He also summarized that she had some residual problems as a result of the depressive episode. It is noted that Dr. Turner apparently considers the 1987 absence from work to be part of the same depressive episode since he states that her symptoms began approximately two and one-half years prior to her referral, which referral was made in September 1989. His report further makes reference to her attempt to return to work and also that she had then been off work continuously for about a year when he initially saw her. Dr. Turner attributed some of claimant's residual symptoms to her preexisting generalized anxiety disorder, though coupled with psychological aftereffects of her depressive illness. It is determined that the assessment of this case as made by Dr. Turner is correct. Though claimant remained in treatment subsequent to February 26, 1990, it is determined that the treatment was maintenance in nature. She had a relapse when her Nortriptyline medication was discontinued. Upon resumption of the medication, her condition again stabilized. The bulk of the continued treatment subsequent to February 26, 1990 was treatment with Dr. Straight for the anxiety complaints. Dr. Turner generally found no pervasive symptoms of depression whenever he examined her, other than Page 10 the June 20, 1990 examination when she had been taken off medication. It is therefore concluded that claimant's entitlement to healing period compensation ended February 26, 1990 consistent with the April 26, 1990 report from Dr. Turner. Dr. Turner finds residual symptoms from the depressive episode which are combined with the preexisting anxiety disorder. Since emotional injury is not a scheduled injury, any permanent disability which results is to be compensated industrially. 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 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. 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. As indicated by Dr. Turner, Dr. Cavallin and Craig Butterfield, returning to work at Sears is not a viable option for Linda Callison. Claimant appears to be getting along reasonably well in her current employment as a bookkeeper. There is little in the way of medical guidance in the record with regard to activity restrictions, but it can reasonably be inferred that she should avoid high stress occupations. Linda Callison could probably work as a teletype operator, secretary or in a number of other positions which do not involve confrontations with the Page 11 general public or confrontations with supervisors and which provide well-defined, achievable work requirements and standards. She has experienced a considerable loss of income as the result of the loss of her employment with Sears. When all the material factors of industrial disability are considered, it is determined that Linda Callison experienced a 50 percent permanent reduction in her earning capacity as a result of the February 10, 1988 injury. Since the employer has been determined to be liable for the injury, the employer is likewise responsible for the expenses covered by section 85.27. Those expenses are found in exhibit 2 and total $2,477.61. The only issue identified for those expenses was the issue of liability. In view of the stipulations in the prehearing report, the employer is entitled to credit for the medical expenses paid by the group plan. The employer is also entitled to credit in the amount of $14,866.42 for payments made under the group disability income plan. order IT IS THEREFORE ORDERED that defendants pay Linda Callison one hundred six and six-sevenths (106 6/7) weeks of compensation for healing period payable commencing February 10, 1988 at the stipulated rate of two hundred thirty-three and 92/100 dollars ($233.92) per week. IT IS FURTHER ORDERED that defendants pay Linda Callison two hundred fifty (250) weeks of compensation for permanent partial disability payable commencing February 27, 1990 at the stipulated rate of two hundred thirty-three and 92/100 dollars ($233.92) per week. IT IS FURTHER ORDERED that all past due amounts, less credit in the amount of fourteen thousand eight hundred sixty-six and 42/100 dollars ($14,866.42) in group disability income benefits, be paid in a lump sum together with interest pursuant to section 85.30 of The Code. IT IS FURTHER ORDERED that defendants, subject to group plan payments, pay the following medical expenses pursuant to section 85.27: Taylor, Smith, Turner & Associates $1,575.00 Robert J. Foley, M.D. 137.00 Iowa Lutheran Hospital 49.00 Linda Jean Callison, mileage 251.16 Linda Jean Callison, prescriptions 465.45 Total $2,477.61 IT IS FURTHER ORDERED that the costs of this proceeding are assessed against the defendants pursuant to rule 343 IAC 4.33. IT IS FURTHER ORDERED that defendants shall file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Page 12 Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Page 13 Copies To: Mr. David D. Drake Attorney at Law West Towers Office Complex 1200 35th Street, Suite 500 W. Des Moines, Iowa 50265 Mr. Marvin E. Duckworth Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 1108.20; 1402.30; 2204 Filed April 22, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : LINDA CALLISON, : : Claimant, : : vs. : : File No. 931324 SEARS CREDIT CENTRAL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ALLSTATE INS. CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1108.20; 1402.30; 2204 Fifty-two-year-old woman, with a long history of employment with the employer in clerical positions, was moved into a position as a debt collector. Thereafter, she did not perform well. She worked for approximately six years under a nearly constant threat of termination of employment due to lack of productivity. When presented with added work and changes in the work place which resulted from converting from manual records to a computer records system, she decompensated and experienced a major depressive episode. It was held that the Wisconsin test was met in view of the highly stressful nature of debt collection employment, the stress from being unable to perform the job and under the continued threat of termination of employment for nearly six years and finally the change from manual to computer record keeping. Benefits were awarded. Claimant awarded 106 6/7 weeks of healing period and 50 percent permanent partial disability.