Page 1
before the iowa industrial commissioner
____________________________________________________________
:
WILLIAM A. STEWART, :
:
Claimant, :
:
vs. :
: File No. 941911
DES MOINES METROPOLITAN :
TRANSIT AUTHORITY, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
HARTFORD INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
introduction
This is a proceeding in arbitration brought by William
A. Stewart, against his employer, the Des Moines Metro
Transit Authority, and its insurance carrier, Hartford
Insurance, as defendants.
Claimant has alleged that he sustained a work-related
injury on December 18, 1989.
The case was heard at Des Moines, Iowa on September 6,
1991 and was considered fully submitted upon conclusion of
the hearing.
The record in this proceeding consists of the testimony
of the claimant, Jerry Pierson, and Gary Pollock; claimant's
exhibit 1, 2, and 3; and, joint exhibits A-I.
issues
Pursuant to the prehearing report and in conjunction
with the hearing assignment order, the parties submitted the
following issues for resolution:
1. Whether claimant sustained an injury on December
18, 1989, which arose out of and in the course of his
employment with the Des Moines Metro Transit Authority;
2. Whether there is a causal relationship between the
alleged injury and the disability;
3. Whether claimant is entitled to temporary
disability or healing period benefits, or permanent partial
disability benefits;
Page 2
4. Whether claimant is entitled to medical benefits as
governed by Iowa Code section 85.27; and,
5. Whether defendants are entitled to credit for
benefits paid pursuant to Iowa Code section 85.38(2).
findings of fact
William Stewart has worked for the Des Moines Metro
Transit Authority as a bus driver since August of 1985.
On December 18, 1989, claimant was involved in an
automobile accident while driving to work. Claimant
described the accident as being hit on the driver's side of
his vehicle. Claimant stated that his left hand and wrist
hit the window, and he complained of neck and back pain.
Claimant sought treatment from the Emergency Room at
Mercy Hospital Medical Center where he complained of
tingling in the left hand, left arm, shoulder and neck pain.
He was diagnosed as having a contusion on the scalp, and a
cervical strain, and was referred to his family physician,
Jeffrey VerHeul, M.D. (Joint Exhibit A, pages 1-3).
Claimant visited Dr. VerHeul the day after the
accident, December 19, 1989, and the clinical notes indicate
that Dr. VerHeul provided claimant with a work excuse.
Claimant returned to Dr. VerHeul on January 8, 1990.
Medical notes provide the following information:
William returns to the office today for
follow-up of his accident. He reports that on
12/18, he was hit from the left side while driving
his car and was involved in an a ccident [sic]. .
. . He reports his left arm and hand also bother
him. They seem to go to sleep. It has been since
the accident. He has not noticed any lost [sic]
of strentgh [sic] but he reports taht [sic] it
seems like he always feels like he has to massage
his arm. THis [sic] is espeically [sic] true when
he is doing some activity such as his bus driving.
(Jt. Ex. E, p. 18).
Dr. VerHeul recommended, among other tests, nerve
conduction velocity (NCV) tests of the upper extremities.
The results of the NCV demonstrated mild left carpal tunnel
syndrome. Claimant was referred to Robert A. Hayne, M.D.
(Jt. Ex. E, p. 19).
On March 7, 1990, Dr. Hayne, in a letter to the
insurance carrier, made the following comments:
I saw William Stewart for examination on
January 23, 1990. He is a 42-year-old male who
has had numbness and aching in his left hand
dating back for an indefinite period of time. On
12/18 he was in a motor vehicle accident, and his
symptoms have been much worse since that time.
Page 3
...
An EMG of the left upper extremity showed
evidence of a left carpal tunnel, and his symptoms
were severe enough that he underwent surgery for
decompression of the carpal tunnel area on
February 27.
I feel that, in view of his history, that his
work as a bus driver with manipulation of his
hands on the steering wheel is, in all
probability, causing his symptomatology, and the
automobile accident in December aggravated his
symptomatology. In summary, it is my opinion that
there is a causal relationship between his
symptomatology and his work as a bus driver for
the Metro Transit Authority.
(Jt. Ex. D, p. 16).
Subsequently, Dr. Hayne recommended that claimant drive
only buses with power steering during his healing period,
and on May 23, 1990, opined that claimant had sustained a
five percent permanent impairment of the left upper
extremity. (Jt. Ex. D, pp. 12, 13 & 15).
Claimant reported this information to his employer, and
the employer sent claimant to another doctor, Peter D.
Wirtz, M.D.
Dr. Wirtz, who examined claimant on February 7, 1990,
also diagnosed mild carpal tunnel syndrome of the left
wrist. On March 2, 1990, Dr. Wirtz reached the following
conclusion:
As noted in his history, the patient had
symptoms prior to an accident on 12/18/89. He
related the symptoms being increased with the
accident on 12/18/89 which would have been an
aggravatory condition to a pre-existing carpal
tunnel syndrome. Should he not have had the
injury 12/18/89, it is unlikely that it would have
required surgery that he was seeking on
examination 2/7/90.
(Jt. Ex. C, p. 10).
On March 13, 1990, Dr. VerHeul was of the opinion that
the carpal tunnel syndrome was not causally related to the
automobile accident. He did not voice an opinion as to
whether the surgery would have been necessary if the
accident had not occurred. (Jt. Ex. F, p. 30). He stated
that the carpal tunnel was caused by long term repetitive
movements. (Jt. Ex. F, p. 34).
On March 14, 1991, claimant was evaluated by David
Berg, D.O., who concluded that "the motor vehicle accident
of December 18, 1990 either precipitated this gentleman's
carpal tunnel syndrome or aggravated a preexisting condition
which possibly existed and caused it to be symptomatic."
Page 4
(Jt. Ex. B, p. 7).
analysis and conclusions of law
The first issue to be determined is whether claimant
received an accident which arose out of and in the course of
his employment.
An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).
A personal injury contemplated by the workers'
compensation law means an injury, the impairment of health
or a disease resulting from an injury which comes about, not
through the natural building up and tearing down of the
human body, but because of trauma. The injury must be
something which acts extraneously to the natural processes
of nature and thereby impairs the health, interrupts or
otherwise destroys or damages a part or all of the body.
Although many injuries have a traumatic onset, there is no
requirement for a special incident or an unusual occurrence.
Injuries which result from cumulative trauma are
compensable. McKeever v. Custom Cabinets v. Smith, 379
N.W.2d 368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 1116, 125 N.W.2d 251, 254 (1963); Ford v. Goode,
240 Iowa 1219, 1222, 38 N.W.2d 158, 159 (1949); Almquist v.
Shenandoah Nurseries, Inc., 218 Iowa 724, 731, 254 N.W. 35,
35 (1934).
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on or before
December 18, 1989, 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 injury must both arise out of and be in the course
of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246
Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406
of the Iowa Report. See also Sister Mary Benedict v. St.
Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen
v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
The words "out of" refer to the cause or source of the
injury. Crowe, 246 Iowa 402, 68 N.W.2d 63.
The words "in the course of" refer to the time and
place and circumstances of the injury. McClure v. Union
et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa
402, 68 N.W.2d 63.
"An injury occurs in the course of the employment when
it is within the period of employment at a place the
employee may reasonably be, and while he is doing his work
or something incidental to it." Cedar Rapids Comm. Sch.
Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188
N.W.2d 283; Musselman v. Central Telephone Co., 261 Iowa
352, 154 N.W.2d 128 (1967).
Page 5
Claimant argues that the carpal tunnel syndrome
experienced in his left wrist is a direct result of
movements required while steering the buses. He argues that
six months prior to the automobile accident, he had pain in
the left wrist, but he did not report the pain to his
employer because, "[i]t was pain that I could live with."
(Jt. Ex. G, p. 10).
Defendants argue that claimant's injury was caused by
the automobile accident which occurred on December 18, 1989.
They propose that claimant did not formally complain of any
type of pain in his left wrist prior to the automobile
accident, and that he was fully aware of the procedures to
be followed when reporting a work-related accident and
injury.
All of the physicians who treated claimant are of the
opinion that his carpal tunnel syndrome predated the
accident. At the hearing, claimant was able to describe the
nature of his job as a bus driver with clarity, and it is
certainly understandable that in steering a bus, he would
use repetitive motions of the wrist. During the six months
prior to the automobile accident, claimant worked part-time
as a bus driver until September of 1989, when he was hired
as a full-time employee. During this time, claimant
regularly drove buses which were not equipped with power
steering. Medical documentation support his argument in
that prior to the automobile accident, he had pain in the
left wrist. Claimant has shown by both his own credible
testimony and medical documentation, that he sustained a
personal injury which arose out of and in the course of his
employment.
The next issue to be addressed is whether a causal
relationship exists between claimant's injury and his
disability.
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa
1980); Homes v. Bruce Motor Freight, Inc., 215 N.W.2d 296,
297 (Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing disability. The weight to be given to any expert
opinion is determined by the finder of fact and may be
affected by the accuracy of the facts relied upon by the
expert as well as other surrounding circumstances. The
expert opinion may be accepted or rejected, in whole or in
part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa
1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa
1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867
(1965).
Page 6
The evidence reveals that claimant sustained a physical
injury caused by his work. However, he did not require any
type of formal medical treatment until after the automobile
accident which occurred on December 18, 1989. This accident
was not work-related, and as the medical evidence notes, it
is the car accident which aggravated his preexisting
condition to become symptomatic and require surgery.
Although workers are generally compensated for preexisting
conditions that are aggravated by a work injury, the
reverse, as we have in this case, is not compensable.
As a result, claimant takes nothing from these
proceedings.
order
THEREFORE, it is ordered:
That claimant take nothing from these proceedings.
That defendants shall pay the costs of the this
proceeding.
Signed and filed this ____ day of September, 1991.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Douglas J Reed
Attorney at Law
1906 Ingersoll Avenue
Des Moines Iowa 50309
Mr Jeff M Margolin
Attorney at Law
Terrace Center Ste 111
2700 Grand Avenue
Des Moines Iowa 50312
5-1108
Filed September 26, 1991
PATRICIA J. LANTZ
before the iowa industrial commissioner
____________________________________________________________
:
WILLIAM A. STEWART, :
:
Claimant, :
:
vs. :
: File No. 941911
DES MOINES METROPOLITAN :
TRANSIT AUTHORITY, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
HARTFORD INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1108
Claimant failed to show that his disability was related to a
work-related injury where he was involved in an automobile
accident which caused his carpal tunnel syndrome to become
symptomatic.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
THEODORE ST. JOHN, : File No. 942043
:
Claimant, : A R B I T R A T I O N
:
vs. : D E C I S I O N
:
QUAKER OATS COMPANY, :
:
Employer, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Theodore St.
John, claimant, against Quaker Oats Company, employer,
hereinafter referred to as Quaker, a self-insured defendant, for
workers' compensation benefits as a result of an alleged injury
on February 19, 1990. On June 3, 1993, a hearing was held on
claimant's petition and the matter was considered fully submitted
at the close of this hearing.
The parties have submitted a hearing report of contested
issues and stipulations which was approved and accepted as a part
of the record of this case at the time of hearing. The oral
testimony and written exhibits received during the hearing are
set forth in the hearing transcript.
According to the hearing report, the parties have stipulated
to the following matters:
1. Claimant is seeking temporary total or healing period
benefits only from March 18, 1991 through March 15, 1992, and
defendants agree that he was not working at this time.
2. At the time of injury claimant's gross rate of weekly
compensation was $849.55; he was married; and he was entitled to
two exemptions. Therefore, claimant's weekly rate of compensation
is $494.30 according to the Industrial Commissioner's published
rate booklet for this injury.
3. The parties agreed at hearing that they would work out
the dispute over medical expenses if the elbow condition in
dispute in this case is found work related.
ISSUES
The parties submitted the following issues for determination
in this proceeding:
Page 2
I. Whether claimant received an injury arising out of and
in the course of employment;
II. Whether the claim is barred as untimely under Iowa Code
section 85.23 and 85.26.
III. The extent of claimant's entitlement to disability
benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as follows:
A credibility finding is necessary to this decision as
defendants placed claimant's credibility at issue during
cross-examination as to the nature and extent of the injury and
disability. From his demeanor while testifying, claimant is
found credible.
Claimant worked for Quaker as an electrician from September
1966 until his early retirement October 1991. On or about
February 19, 1990, while working from a ladder in the performance
of his duties at Quaker, claimant fell 10 to 12 feet onto his
back. Claimant immediately suffered low back pain along with a
lacerated elbow. Claimant stated that he did not notice problems
with his elbow at the time as he was more concerned over his
severe low back pain. Claimant was treated for back pain over
the next few weeks by Mark Mehlhoff, M.D., an orthopedic surgeon.
Dr. Mehlhoff also treated claimant for foot problems in the
spring of 1990 but these problems were unrelated to his fall in
February.
In August 1990, Dr. Mehlhoff began to treat claimant's right
elbow for olecranon bursitis, an inflammation of the lubrication
sack just under the skin in the outer edge of the elbow joint.
There is some dispute as to when claimant first began to have his
symptoms of swelling and pain in the elbow. Claimant and his
wife testified that this began two to three weeks after the fall.
Dr. Mehlhoff states in his deposition that his notes do not
reflect any elbow complaints other than the laceration until
August 1990. However, Dr. Mehlhoff also stated that he did not
spend a great deal of time on any elbow problems as his primary
concern at the time was claimant's back. He also stated that he
did not note the exact condition of the elbow after the fall as
it was initially treated by emergency room physicians. It is
found that claimant's testimony and that of his wife is credible
and that claimant did indeed suffer swelling and pain in his
right elbow within two to three weeks after the fall.
When conservative treatment, consisting of aspirations,
steroid injections, Ace wraps and rest, did not alleviate the
elbow problems, Dr. Mehlhoff performed surgery on the elbow in
Page 3
April 1990. However, after an initial period of improvement,
claimant deteriorated and treatment by Dr. Mehlhoff lasted for
almost a year until August 1991. At that time, Dr. Mehlhoff
recommended further surgery. However, claimant expressed concern
over his lack of improvement and sought treatment at the Mayo
Clinic in Minnesota from Peter Amadio, M.D. This treatment
consisted of additional surgery and proved success. According to
Dr. Amadio, claimant reached maximum healing on April 8, 1992.
Dr. Mehlhoff opines that claimant's elbow problems are
unrelated to the fall, although he felt that this was a
possibility. He stated that his notes do not reflect any
continuing elbow complaints for six months after the fall. Dr.
Amadio opines that this is a work-related condition and due to
the fall based upon a history of swelling and pain within two
weeks of the fall. As it is found above that claimant did indeed
have swelling and pain from his elbow masked by the back pain,
Dr. Amadio's opinions are given the most weight. Also, Dr.
Amadio's treatment was successful, unlike the treatment given by
Dr. Mehlhoff.
With reference to notice and the timeliness of this claim,
the elbow condition is the result of the work related fall on
February 19, 1990. Defendant had notice of this work injury only
a few minutes after the fall. The last payment of benefits was
made on March 5, 1990, according to the commissioner's file
herein. Claimant's petition for benefits related to the fall was
filed on March 10, 1992.
It could not be found that the work injury of February 19,
1990, was a cause of permanent impairment or disability to the
body as a whole. As Dr. Amadio's views were given greater weight
on the causal connection issue, his views as to permanency are
also given greater weight. Dr. Amadio opines that there is no
permanency from the elbow condition. The back condition clearly
did not result in permanency and none is claimed by claimant
herein.
CONCLUSIONS OF LAW
I. Claimant has the burden of proving by a preponderance of
the evidence that claimant received an injury arising out of and
in the course of employment. The words "out of" refer to the
cause or source of the injury. The words "in the course of"
refer to the time and place and circumstances of the injury. see
generally, Cedar Rapids, Comm. Sch. Dist. v. Cady, 278 N.W.2d 298
(Iowa 1979); Crowe V. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68
N.W.2d 63 (1955). An employer takes an employee subject to any
active or dormant health impairments. A work connected injury
which more than slightly aggravates the condition is considered
to be a personal injury. Ziegler v. U.S. Gypsum, 252 Iowa 613,
620, 106 N.W.2d 591 (1961), and cases cited therein.
The question of causal connection is essentially within the
Page 4
domain of expert medical opinion. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of
experts need not be couched in definite, positive or unequivocal
language and the expert opinion may be accepted or rejected, in
whole or in part, by the trier of fact. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to
such an opinion is for the finder of fact to determine from the
completeness of the premise given the expert or other surrounding
circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d
867 (1965).
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal connection,
such testimony may be coupled with non-expert testimony to show
causation and be sufficient to sustain an award. Giere V. Aase
Haugen Homes, Inc. 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).
Such evidence does not, however, compel an award as a matter of
law. Anderson v. Oscar Mayer & Co. 217 N.W.2d 531, 536 (1974).
In the case sub judice, the evidence submitted by claimant
and primarily his credible testimony as to complaints of swelling
and pain within a few weeks after the fall established by the
greater weight of the evidence that the elbow condition was work
related.
II. Claimant must demonstrate timely notice and the
timeliness of his claim. Under Iowa Code section 85.23, claimant
must provide notice of a work related injury to his employer
within 90 days. Under Iowa Code section 85.26, his petition for
benefits must be commenced with this agency within three years of
the last payment of weekly benefits. In the case before us,
claimant clearly established a timely notice and claim.
III. As permanency was not established, claimant is only
entitled to weekly benefits for temporary total disability under
Iowa Code section 85.33 from the date of injury until claimant
returns to work or until claimant is medically capable of
returning to substantially similar work to the work he was
performing at the time of injury. It was found that claimant did
not fully recover until April 8, 1992. Claimant is entitled to
the stipulated times off work from March 19, 1991 through March
15, 1992.
ORDER
1. Defendant shall pay to claimant temporary total
disability benefits from March 19, 1991 through March 15, 1992,
fifty-one point seven one four (51.714) weeks, at the rate of
four hundred ninety-four and 30/100 dollars ($494.30) per week.
2. Defendant shall pay accrued weekly benefits in a lump
sum and shall receive credit against this award for all benefits
previously paid.
Page 5
3. Defendant shall pay interest on weekly benefits awarded
herein as set forth in Iowa Code section 85.30.
4. Defendant shall pay the costs of this action pursuant to
rule 343 IAC 4.33, including reimbursement to claimant for any
filing fee paid in this matter.
5. Defendant shall file activity reports on the payment of
this award as requested by this agency pursuant to rule 343 IAC
3.1.
Signed and filed this ____ day of October, 1993.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Wallace L. Taylor
Attorney at Law
326 Higley Bldg
Cedar Rapids, Iowa 52401
Mr. James M Peters
Attorney at Law
115 3rd St SE STE 1200
Cedar Rapids, Iowa 52401
51803
Filed October 25, 1993
Larry P. Walshire
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
THEODORE ST. JOHN, File No. 942043
Claimant, A R B I T R A T I O N
vs. D E C I S I O N
QUAKER OATS COMPANY,
Employer,
Defendant.
___________________________________________________________
51803
Nonprecedential extent of disability case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
JAMES E. AMBER,
File No. 942108
Claimant,
A P P E A L
vs.
D E C I S I O N
ROLSCREEN COMPANY,
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 July 25, 1994 is affirmed and
is adopted as the final agency action in this case.
Defendant shall pay the costs of the appeal, including the preparation
of the hearing transcript.
Signed and filed this ____ day of February, 1995.
_______________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Harold B. Heslinga
Attorney at Law
118 North Market St
Oskaloosa IA 52577
Mr. Cecil L. Goettsch
Attorney at Law
801 Grand Ave STE 3700
Des Moines IA 50309-2727
5-1108.5; 5-2500; 5-2909
Filed February 21, 1995
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
JAMES AMBER,
File No. 942108
Claimant,
vs. APPEAL
ROLSCREEN, DECISION
Employer,
Self-Insured,
Defendant.
________________________________________________________________
5-1108.5; 5-2500; 5-2909
Claimant incurred an injury on February 8, 1990. A prior arbitration
decision found permanent impairment, work restrictions and entitlement
to benefits under chapter 85. Claimant had a flare-up in May and June
1993 that resulted in $2,210.60 in medical expenses. The employer
believed that the medical expenses were incurred as a result of a new
injury which was not compensable. The claimant believed that the aches
and pains were a direct result from the prior work injury. It was held
that the expenses were compensable under the February 8, 1990 claim as
no identifiable trauma or event could be identified and no medical
reports indicated a new cause of the symptoms. Claimant had a prior
surgery which would more than likely cause continued aches and pains in
his back for the rest of his life. Benefits under section 85.27
allowed with credit for benefits paid under a group health plan.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JAMES E. AMBER, :
: File No. 942108
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
ROLSCREEN COMPANY, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition of
claimant, James E. Amber, against his self-insured employer,
Pella Corporation, f/k/a Rolscreen, defendant. The case was
heard on April 7, 1993 at the office of the Industrial
Commissioner in Des Moines, Iowa. The record consists of the
testimony of claimant. The record also consists of joint
exhibits 1-70. In addition, the deputy industrial commissioner
has been asked to take administrative notice of files numbered
834381, 852967 and 963858.
ISSUES
The sole issues to determine are: 1) whether there is a
causal relationship between the injury and any permanent
disability; and 2) whether claimant is entitled to any permanent
partial disability benefits.
FINDINGS OF FACT
The deputy, having heard the testimony and considered all
the evidence, finds:
Claimant is 57 years old. He is a high school graduate and
a United States Marine Corps veteran. After his honorable dis
charge from the military, claimant held a variety of positions.
He worked in various capacities in the construction field. He
drove a truck. He worked as a machinist in a factory, and he has
owned his own business.
For approximately the last three or four years, claimant has
owned a tavern in Harvey, Iowa. Claimant performs all of the
paperwork necessary to the operation of the business. He also
does some of the remodeling in the building. He has three full
time employees. Claimant does not work at the establishment on a
daily basis.
Claimant commenced his employment with defendant in January
of 1977. For nearly 15 years, claimant has worked in the ship
ping department as a locator. For a period of time, claimant had
driven a fork lift truck. Later he was removed from the fork
Page 2
lift truck and placed on an electric jack where he earned the
same rate of pay.
Defendant corporation is engaged in the manufacturing of
windows. It is claimant's responsibility to mark various prod
ucts with a label and to enter the label codes into a computer
system so the product can be located in the shipping department.
Claimant is responsible for placing the product in its proper
storage place. He uses various pieces of equipment to assist
him. Claimant has indicated that he hopes to remain in the
employ of defendant until he can retire at age 62.
Pursuant to defendant's request, the undersigned reviewed
the official records at the Division of Industrial Services rela
tive to three workers' compensation files involving this claimant
and this defendant. The official administrative records of the
agency indicate the following:
With respect to file number 834381, claimant sustained a
work-related injury to his back on September 18, 1986. This
injury occurred when claimant slipped on a greasy floor spot, and
a window fell on him. As a result of the work injury, defendant
compensated claimant for healing period benefits in the amount of
29.143 weeks for a sum of $7,491.06. Defendant also paid 61
weeks of permanent partial disability benefits. Claimant
returned to work with the restrictions of no lifting, pushing or
pulling over 30 pounds. (Joint Exhibit F, page 64)
With respect to file number 852967, claimant sustained a
work-related injury to his low back on May 18, 1987. At the time
of the work injury, claimant was sitting in his motor vehicle on
the company parking lot and he was struck from behind by another
vehicle. Claimant sustained an injury to his low back. For his
work injury, claimant was paid for eight weeks of temporary total
disability benefits for a sum of $2,110.32. He was also paid for
3.143 weeks of temporary partial disability benefits. Claimant
was paid no permanency benefits as a result of this work injury.
With respect to file number 963858, claimant sustained a
work-related injury on October 2, 1990. At that time, claimant
was riding a handjack and he ran into a fork lift truck. As a
result of the accident, claimant's right ankle was pinned between
the handjack and the fork lift truck. The file does not reflect
that benefits of any kind were paid to claimant.
It is undisputed that prior to the work injury in question
here, claimant underwent two other back surgeries. The back
surgeries were the result of the work injury on September 18,
1986. Robert A. Hayne, M.D., performed two separate laminec
tomies. The first one occurred in November of 1986; the second
one occurred in January of 1987. Dr. Hayne opined that claimant
had sustained a 16-17 percent permanent impairment. Claimant was
able to return to work as a locator on April 20, 1987. Dr. Hayne
restricted claimant to no lifting, pushing or pulling over 30
pounds. Claimant was paid permanent partial disability benefits.
The record also indicates that in January of 1989, claimant
sought an evaluation for his back condition from William Boulden,
M.D. In his letter of January 23, 1989, Dr. Boulden discusses a
work injury in 1989. Dr. Boulden recommends physical therapy
Page 3
(Ex. 11).
Dr. Hayne performed a third laminectomy on March 22, 1990.
This surgery followed the work injury in question. Following a
period of recuperation, claimant was able to return to work in
the shipping department. He was assigned to the position of
locator. At the time claimant returned to work, Dr. Hayne
restricted claimant to no lifting, particularly weights over
35-40 pounds. Dr. Hayne opined claimant could return to his posi
tion as a fork lift truck operator. Despite Dr. Hayne's recom
mendation, claimant was transferred from the position of fork
lift truck driver. He was assigned the task of operating an
electric jack for the same rate of pay.
At the time of the hearing, claimant was still operating the
electric jack in the shipping department. He was also still man
aging his tavern business. Claimant testified that since his
return to work in June of 1990, claimant had missed no work
because of his low back problems, although he testified that he
experienced numbness, pain, and sensations of hot and cold in his
right leg. Claimant also testified that he, as of the date of
the hearing, had to change positions often and that he experi
enced difficulties getting in and out of vehicles.
CONCLUSIONS OF LAW
The first issue is whether there is a causal relationship
between claimant's amended work injury of February 8, 1990 and
claimant's permanent partial disability.
The question of causal connection is essentially within the
domain of expert testimony. The expert medical evidence must be
considered with all other evidence introduced bearing on the
causal connection between the injury and the disability. The
weight to be given to any expert opinion is determined by the
finder of fact and may be affected by the accuracy of the facts
relied upon by the expert as well as other surrounding circum
stances. The expert opinion may be accepted or rejected, in
whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903
(Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa
1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867
(1965).
All of the medical testimony relates claimant's third
surgery to his work injury on February 8, 1990. There is no
medical opinion which disputes the requisite causal connection.
Claimant has met his burden of proof.
The next issue to determine is whether claimant is entitled
to any permanent partial disability benefits as a result of this
work injury. The treating orthopedic surgeon, Dr. Hayne,
attributes six to seven percent of claimant's permanent impair
ment to the injury in question. This opinion was rendered after
numerous observations of the claimant and after having performed
three surgeries on claimant's back.
Marc Hines, M.D., opines there is a 31 percent permanent
impairment to the body as a whole. However, he does not deter
mine the percentage of the impairment which is attributable to
this work injury. He bases his opinion on a single examination
Page 4
of the claimant.
Thomas W. Bower, P.T., also renders an opinion relative to
claimant's permanent impairment rating. His opinion is expressed
in his letter of December 7, 1992, where he writes:
I will attempt in the following paragraphs, to summa
rize my findings, and bring some sort of uniform con
clusion to the past findings.
First of all, many different texts and ways have been
utilized to arrive at the final impairment. I am
unsure of the source of Dr. Hayne's report in calculat
ing impairment, and the AMA guides may have been that
source. Dr. Boulden has clearly used the orthopedic
guides, and these guides are now considered to be out
dated and certainly not universally accepted. Dr.
Hines has further confused this issue by combining his
opinion regarding spinal nerve impairment, with the
lumbar spine. As previously stated, the patient con
veys, nor are there any objective findings to support
residual neurologic changes. Therefore, the use of the
spinal nerve root impairment, and specifically Dr.
Hines' report, I feel is inappropriate.
Again, if I understand the request correctly, the ques
tion is, what is the impairment resulting after the
third surgery? In order to accomplish this, I will
need to work through the logic figuring the impairment
after each surgery.
According to the record, the first surgery was done in
1986. A herniated disc was diagnosed and a laminectomy
was performed at L5. In accordance with Table 53 of
the guides, this would account for an 8% impairment.
The second surgery was accomplished, the best I can
tell, at a different level. Therefore, an additional
8% impairment has occurred. A third surgery was done
in March of 1990 to reduce spinal stenosis at the L4/5
junction. This would be considered a second operation,
entitling that individual to an additional 2% impair
ment.
It appears that Dr. Hayne was very close to the calcu
lated impairment, although I again an [sic] unsure of
his method. The orthopedic guides have also approxi
mated closely the first two surgeries, but have given
too much for the third surgery at the same level. Dr.
Hines' impairment is inappropriate, as previously
stated, based on adding in the spinal nerve impairment.
You will notice I have not considered range of motion
loss. Although Mr. Amber demonstrates some lost trunk
motion in all planes, it appears more due to pain
rather than an actual structural loss. Likely those
movements would change from day to day, based on his
symptoms, therefore, cannot be considered a permanent
finding.
If we were to combine all these impairments into one,
Page 5
the first impairment for the first surgery is 8%, the
second is 8%, combining to a 16% impairment. The total
impairment then with the additional surgery, which is
an additional 2% using the combined values charts,
would then be 18%. Exclusively looking at the impair
ment for the third surgery, would be 2% impairment to
the whole body.
Hopefully I have shed some light on this very confusing
situation and certainly if I can be of any further
help, please feel free to contact us.
(Ex. 6, pp. 62 & 63)
As in the case with Dr. Hines, Mr. Bower's evaluation of
claimant's permanent impairment is based upon a one time opportu
nity to examine and evaluate claimant.
It is the determination of the undersigned that claimant has
sustained a permanent functional impairment as a result of the
work injury on February 8, 1990. The impairment is in the range
of 2 percent to 31 percent, with a more realistic figure of 2
percent to ten percent. However, it is reiterated that a finding
of impairment to the body as a whole found by a medical evaluator
does not equate to industrial disability, which claimant is
alleging in the instant case. See: Rauch v. O'Bryan, File No.
828457, Appeal Decision December 30, 1988.
Likewise, claimant's functional ability is not necessarily
dispositive of claimant's disability within the contemplation of
the worker's compensation law. Veeder v. Commercial Contracting,
87-535, (Ia. Ct. of App. Nov. 29, 1988). In Veeder, the Iowa
Court of Appeals cites McSpadden v. Big Ben Coal Co., 288 N.W.2d
181, 192 (Iowa 1980); regarding industrial disability. The
McSpadden Court writes:
Disability from injuries covered by chapter 85 has been
defined by case law as "industrial disability," or a
reduction in earning capacity. Among the criteria con
sidered in determining industrial disability are the
claimant's "age, education, qualifications, experience
and his inability, because of the injury, to
Page 6
engage in employment for which he is fitted."
Functional disability, while a consideration, has not
been the final criterion....
(Citations omitted)
The Veeder Court continued as follows:
In other words, while functional capacity may be only a
twenty-five or thirty percent disability compared with
the one hundred percent perfect man, disability may be
considered total from the standpoint of a claimant's
ability to go back to work to earn a living for himself
and his family. See Diedrich v. Tri-City Railway, 219
Iowa 587, 594, 258 N.W. 899, 902 (1935).
While it is acknowledged that claimant has a functional
impairment, his industrial disability with respect to this back
injury is minimal. Claimant has been able to return to a job
substantially similar to the one he has held prior to February 8,
1990. Defendant is to be commended for its monumental efforts in
returning claimant to work after each of his work injuries. The
defendant-employer has accommodated claimant in the workplace.
The only difference with respect to claimant's position now is
that he operates an electric jack rather than drives a fork lift
truck. The current modification has been made so claimant will
not have to engage in twisting movements which are necessary when
one is operating a fork lift truck. The position as fork lift
driver is no longer available to claimant. Claimant's attendance
has been excellent. By his own admission, claimant has missed no
work days because of the work injury in question. Claimant does
have more trouble walking and getting in and out of vehicles. He
has some numbness in his right leg which requires some care on
claimant's part when he begins to walk. He has trouble bending.
His pain has increased, but he takes Tylenol to ease the pain.
His performance has at least been satisfactory since the
most recent work injury. He has had no loss of earnings. He is
earning the same rate of pay now as before the work injury.
Claimant is capable of managing his tavern. Those job duties
have not been affected.
Therefore, in light of all of the foregoing, as well as in
light of the personal observations of claimant, it is the deter
mination of the undersigned that claimant is entitled to 5 per
cent permanent partial disability benefits as a result of the
work injury on February 8, 1990. This equates to 25 weeks of
benefits commencing on June 1, 1990 and payable at the stipulated
rate of $265.58 per week.
ORDER
THEREFORE, IT IS ORDERED:
Defendant is to pay unto claimant twenty-five (25) weeks of
permanent partial disability benefits at the stipulated rate of
two hundred sixty-five and 58/l00 dollars ($265.58) per week,
commencing on June 1, 1990.
Accrued benefits are to be paid in a lump sum together with
Page 7
statutory interest at the rate of ten percent (10%) per year pur
suant to section 85.30, Iowa Code, as amended.
Defendant shall receive credit for all benefits previously
paid to claimant as a result of this work injury.
Defendant shall pay the costs of this action pursuant to
rule 343 IAC 4.33.
Defendant shall file a claim activity report as requested by
this division and pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of May, 1993.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Harold B. Heslinga
Attorney at Law
118 North Market Street
Oskaloosa, Iowa 52577
Mr. Cecil L. Goettsch
Attorney at Law
801 Grand Avenue
Suite 3700
Des Moines, Iowa 50309
1803
Filed May 24, 1993
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JAMES E. AMBER,
File No. 942108
Claimant,
A R B I T R A T I O N
vs.
D E C I S I O N
ROLSCREEN COMPANY,
Employer,
Self-Insured,
Defendant.
___________________________________________________________
1803
Claimant is a 57-year-old married man. He had sustained
previous workers' compensation injuries to his back as a
result of his employment with this defendant. Dr. Hayne
performed two separate laminectomies. Claimant returned to
his employment as a fork lift truck operator. He was
restricted from lifting, pushing, or pulling more than 30
pounds. Defendant paid claimant 80 weeks of permanent
partial disability benefits.
He sustained a third work-related injury on February 8, 1990
which resulted in another laminectomy. It was also
performed by Dr. Hayne. The surgeon returned claimant to
work after a healing period. The defendant made
accommodations for claimant in the workplace. Claimant was
transferred from the position of fork lift truck driver to
the position of electric jack operator. The position of
fork lift truck driver was no longer available to claimant.
The transfer was made so that claimant would not have to
engage in twisting motions. He returned to work at the same
rate of pay. Claimant testified that once he had been
returned to work by Dr. Hayne, he missed no more work
because of his low back condition. Also claimant testified
that since the most recent injury to his back, he had
experienced difficulties getting in and out of vehicles. He
also related that he was having pain and numbness in his
right leg which made walking more difficult. Claimant used
Tylenol to ease his pain.
HELD: Claimant had sustained a five percent permanent
partial disability as a result of the most recent work
injury.
51108.5 52500 52909
Filed July 25, 1994
Marlon D. Mormann
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
JAMES AMBER, :
: File No. 942108
Claimant, :
:
vs. : A R B I T R A T I O N
:
ROLSCREEN, : D E C I S I O N O N
:
Employer, : E X P E D I T E D
Self-Insured, :
Defendant. P E T I T I O N
------------------------------------------------------------
51108.5 52500 52909
Claimant incurred an injury on February 8, 1990. A prior
arbitration decision found permanent impairment, work
restrictions and entitlement to benefits under chapter 85.
Claimant had a flare-up in May and June 1993 that resulted
in $2,210.60 in medical expenses. The employer believed
that the medical expenses were incurred as a result of a new
injury which was not compensable. The claimant believed
that the aches and pains were a direct result from the prior
work injury. It was held that the expenses were compensable
under the February 8, 1990 claim as no identifiable trauma
or event could be identified and no medical reports
indicated a new cause of the symptoms. Claimant had a prior
surgery which would more than likely cause continued aches
and pains in his back for the rest of his life. Benefits
under section 85.27 allowed with credit for benefits paid
under a group health plan.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
JAMES AMBER, :
: File No. 942108
Claimant, :
:
vs. : A R B I T R A T I O N
:
ROLSCREEN, : D E C I S I O N O N
:
Employer, : E X P E D I T E D
Self-Insured, :
Defendant. : P E T I T I O N
------------------------------------------------------------
STATEMENT OF THE CASE
This is an expedited proceeding in arbitration brought
by James Amber as a result of injuries to his back which
occurred on February 8, 1990. A prior arbitration hearing
was held on April 7, 1993, with a decision entered May 24,
1993.
This case was heard and fully submitted by telephone
conference initiated in Des Moines, Iowa, on July 19, 1994.
Harold Heslinga, Attorney at Law, participated on behalf of
the claimant. Cecil Goettsch, Attorney at Law, participated
on behalf of the employer. Observing, but not offering
testimony, on behalf of the employer were Myron Linn,
manager of compensation and government affairs, and Marla
Schiebout, occupational health nurse. The record in the
proceeding consists of employer's exhibits 1 through 10 and
the prior administrative file which was received by judicial
notice.
ISSUE
The issue presented for determination is as follows:
Whether medical expenses incurred in May and June of
1993 with Dr. Hayne are causally connected to the February
8, 1990 injury.
FINDINGS OF FACT
Having considered all of the evidence received, the
following findings of fact are made:
Claimant, James Amber, injured his low back on February
8, 1990. Claimant was treated by Robert A. Hayne, M.D., who
performed the third in a series of laminectomies on March
22, 1990. Claimant returned to work after the surgery and
was given work restrictions of no lifting, particularly
weights over 35 to 40 pounds.
A prior arbitration hearing was held on April 7, 1993.
Page 2
During that hearing claimant did not state that he had
incurred any injuries subsequent to February 8, 1990.
Claimant, after April 7, 1993, alleged that he had incurred
a new injury on April 5, 1993. No specific trauma was
indicated for the new injury. The new back pain which
occurred in April 1993 appears to have resulted from work
for Rolscreen in the regular course of employment.
Dr. Hayne undertook treatment in May and June 1993 to
determine whether there was a new problem.
The employer denied the request for reimbursement for
medical benefits amounting to $2,210.06 because claimant had
not mentioned the alleged new injury of April 5, 1993,
during the hearing of April 7, 1993. The employer submitted
the bills under a group health plan which left approximately
$579.32 in medical expenses unpaid.
Claimant was found to have incurred permanent
disability as a result of the February 8, 1990 injury by
reason of the arbitration decision filed May 24, 1993. This
contemplates an ongoing problem which is permanent in
nature. Since no specific trauma was identified to caused
claimant's back pain in May and June of 1993, it must be
found that the back pain was a direct and proximate result
of the February 8, 1990 injury. Permanent work restrictions
and permanent functional impairment imply that claimant's
problem will be ongoing for the rest of his life. It is
entirely probable that claimant will continue to incur
problems with his low back as a result of the February 8,
1990 injury and subsequent surgery. To declare each new
flare-up a new injury would defy logic as such pain and
aches are contemplated.
REASONING AND CONCLUSIONS OF LAW
The issue is whether the medical expenses of May and
June 1993 are causally connected to the February 8, 1990
injury thereby making them a compensable expense under Iowa
Code section 85.27.
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
Page 3
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Section 85.27. Holbert v.
Townsend Engineering Co., Thirty-second Biennial Report of
the Industrial Commissioner 78 (Review-reopen 1975).
It is held that the medical expenses incurred with Dr.
Hayne during the month of May and June 1993 are a direct and
proximate result of the February 8, 1990 injury. These
expenses are compensable under section 85.27 and the
employer is entitled to receive credit for benefits paid
under the group health plan. The lack of objective findings
and no specific trauma lead to the conclusion that the aches
and pains are the result of a prior injury rather than a new
and distinct injury. Permanent impairment and work
restrictions contemplate a continuing problem of lifelong
duration. Since no medical opinion was expressed indicating
a separate or distinct cause and no identifiable incident
was established, the most likely cause of the aches and
pains is the February 8, 1990 injury along with the
subsequent surgery.
ORDER
IT IS, THEREFORE, ORDERED:
Defendant employer, Rolscreen Company, self-insured, is
to pay the medical expenses arising out of the May and June
1993 treatment with Dr. Hayne and appropriate referrals
totally approximately two thousand two hundred ten and
60/100 dollars ($2,210.60).
It is further ordered that the defendant employer is
entitled to receive credit for benefits paid under the group
health plan.
It is further ordered that any costs of this action are
assessed against defendant employer, self-insured, pursuant
to rule 343 IAC 4.33.
Signed and filed this __________ day of July, 1994.
______________________________
MARLON D. MORMANN
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Harold B. Heslinga
Attorney at Law
118 N Market ST
Oskaloosa, Iowa 52577
Mr. Cecil Goettsch
Attorney at Law
801 Grand Ave STE 3700
Des Moines, Iowa 50309-2727
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
PATTY A. MOHR,
Claimant,
vs.
File No. 942474
ADAIR COMMUNITY HEALTH CENTER,
A P P E A L
Employer,
D E C I S I O N
and
ALLIED MUTUAL INSURANCE
COMPANY,
Insurance Carrier,
Defendants.
____________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal.
ISSUES
Defendant states the following issue on appeal: Whether the
deputy erred in denying permanent disability benefits?
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed June 22, 1992 are adopted as final agency
action.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed June 22, 1992 are adopted as set forth below.
Segments designated by asterisks (*****) indicate portions
of the language from the proposed agency decision that have
been intentionally deleted and do not form a part of this
final agency decision. Segments designated by brackets ([
]) indicate language that is in addition to the language of
the proposed agency decision.
The first issue to address is whether there is a causal
relationship between claimant's work injury and her alleged
condition.
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Page 2
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
There is sufficient evidence claimant has established
the requisite causal connection. Both Dr. Johnson (p. 96)
and Dr. Doro (p. 99) attribute claimant's problems to her
work injury on March 7, 1990. Dr. Mary-Franklin G. Paulus,
M.D., concurs with their opinion relative to causal
connection. (Ex. 1, p. 7, lines 17-25). Medical evidence
establishes claimant's causal relationship with her work
injury.
The next issue deals with the nature and extent of
claimant's condition. Claimant alleges she has sustained a
permanent disability. She maintains she has an industrial
disability.
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
the employee is fitted. Olson v. Goodyear Serv. 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. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
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 the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
Page 3
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. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. 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 as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Iowa Code section
85.34.
The opinions of the two evaluating physicians vary
vastly. Dr. Paulus opines that claimant is functionally
impaired in the area of 35 to 40 percent. (Ex. 1, p. 9, ll.
25 through p. 10, l. 5) She bases her opinion on the
following:
We now will attempt to list the percent
impairment for these various findings.
Cervical flexion at 20o with a loss of 40o = 4%
of the whole person
Hyperextension at 50o with a loss of 25o = 2%
of the whole person
Cervical rotation left 40o with a loss 40o = 2%
of the whole person
Cervical rotation right 60o loss of 20o = 1%
of the whole person
Left Cervical lateral tilt 15o loss of 30o = 2%
Right Cervical lateral tilt 45o normal 0
Lumbosacral forward flexion (p. 91 of 3rd
edition AMA Guides), 45o = 2%
W.P. in view of straight leg raising abnormality
seen above
Lumbosacral hyperextension of 10o with loss of
Page 4
15o = 5% W.P.
Loss of strength of grip on right side @ 10
kg/force vs. 24 kg/force on left represents
a loss of 58% of strength (10 kg î 24 kg =
42% or loss of 58%,)multiplied
by the maximum allowable % for that
level for the median nerve, represents 35%
58% x 35% = 20%
These calculations do not include the suspicion of
weakness of the peroneii on the right side, as
evidenced by the abnormal shoe-wear pattern, the
weakness detected clinically, and the calf atrophy
measurement above.
The impression is: Closed head trauma with
concussion Cervical strain with
possible cord injury
Contusion right shoulder
Low Back strain with possible HNP
Adjustment Disorder with
Depressed Mood
History of Fibromyositis
Comment: This patient obviously had severe injury
to the head and neck as well as the lumbosacral
spine, in decreasing order of severity. The fact
that the CAT scan and the MRI did not show damage
does not change the fact that physiologic damage
of the central and peripheral nervous system did
occur (initial concussion, with right facial and
right arm paralysis). The concussion did not
resolve for a full 3 days and the paralysis
pattern took even longer. I think this patient
has been severely affected by this accident, not
only physically, but by the emotional stress
involved as well. It seems a bit strange also
that she never received any cervical traction
during her entire physical therapy course, but
this may be only a small matter. She may still
receive improvement from it, even at this late
hour. I feel this patient is attempting to
overcome the affects of this accident, and to
resume a normal life style as soon as possible.
She appears to be anxious to return to a more
professional work-force.
(Ex. 3, pp. 67-68)
[Dr. Paulus] ***** practices in orthopedic surgery and
[while she] is eligible for board certification, [she has
not obtained board certification. She is not a neurologist,
a neurosurgeon, nor a psychiatrist]. Dr. Paulus has
examined claimant on [two] ***** occasions, June 4, 1991 and
[March 26, 1992].
There is a contrary opinion by Dr. Cotton. He opines
that claimant is not functionally impaired. He diagnoses
Page 5
claimant as having "diffuse subjective pain of uncertain
etiology." Dr. Cotton further opines that:
I felt there was no evidence of any permanent
partial impairment or subsequent disability
according to the AMA Guides, Third Edition,
Revised.
(Ex. E, p. 8, ll. 20-22)
In his deposition, Dr. Cotton further opines that:
I found no objective abnormalities on her physical
examination that would account for the degree or
the type or the persistence of the symptoms that
she describes to the doctors.
(Ex. E, p. 30, ll. 12-15)
Dr. Cotton ***** has examined claimant on one occasion,
March 31, 1992. Dr. Cotton is board certified in neurology
and in electrodiagnostic medicine. [In addition he is
certified by the American Academy of Electrodiagnostic
Medicine to perform EMG's and nerve conduction studies.]
It is the determination of the [industrial
commissioner] ***** that [while] both physicians are
eminently qualified to render an opinion, the opinion of Dr.
Cotton is entitled to greater weight. Dr. Cotton is more
experienced than Dr. Paulus and has expertise in the area
involved in the injury. Even though Dr. Paulus saw the
claimant twice as opposed to Dr. Cotton seeing the claimant
once, this is but one factor to consider. After having
reviewed the record in its entirety, the industrial
commissioner gives greater weight to the opinion of Dr.
Cotton.] *****
Objective test results are all in the normal range.
Two CT scans are normal. An MRI is normal. Dr. Doro, a
specialist in neurology, has diagnosed claimant as having an
acute cervical and thoracic strain. Dr. Doro has not
provided any functional impairment rating. Dr. Johnson, as
of September 26, 1990, has treated claimant for
"fibromyalgia/fibrositis." (Ex. 5, p. 71) All he notes, as
far as objective signs of claimant's condition, are muscle
spasms.
Currently, claimant only takes aspirin for pain.
Records indicate that claimant has last seen her treating
physician, Dr. Johnson on October 24, 1990.
After reviewing the entire record, ***** it is the
decision of the undersigned that claimant does not have a
permanent partial disability. No objective evidence
supports her claim.
Claimant, however, has sustained a temporary total
disability pursuant to section 85.33(1). The section
provides that:
Page 6
Except as provided in subsection 2 of this
section, the employer shall pay to an employee for
injury producing temporary total disability weekly
compensation benefits, as provided in section
85.32, until the employee has returned to work or
is medically capable of returning to employment
substantially similar to the employment in which
the employee was engaged at the time of injury,
whichever occurs first.
The record establishes that claimant was off of work
from March 7, 1990 until she returned to full time work on
October 1, 1990. At that time she returned to defendant's
business establishment as a restorative aide, a position
which she held prior to the date of her injury. Claimant,
as a consequence, is entitled to 29.714 weeks of temporary
total disability benefits at the stipulated rate of $170.04
per week. Prior to the hearing, defendants had paid
claimant 29.429 weeks of compensation at the proper rate.
WHEREFORE, the decision of the deputy is affirmed.
ORDER
THEREFORE, it is ordered:
That defendants shall pay claimant point two eight five
(.285) weeks of temporary total disability benefits at the
rate of one hundred seventy and 04/l00 dollars ($170.04) per
week.
That accrued benefits are to be paid in a lump sum
together with statutory interest at the rate of ten percent
(10%) per year pursuant to Iowa Code section 85.30, as
amended.
That claimant shall pay the costs of the appeal including
the transcription of the hearing. Defendants shall pay all
other costs.
That defendants shall file a claim activity report as
requested by this division and pursuant to rule 343 IAC 3.l.
Signed and filed this ____ day of November, 1992.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. E. W. Wilcke
Attorney at Law
826 1/2 Lake Street
P O Box 455
Spirit Lake, Iowa 51360
Ms. Judith Ann Higgs
Attorney at Law
701 Pierce Street STE 200
P O Box 3086
Page 7
Sioux City, Iowa 51102
Mr. Russell S. Wunschel
Attorney at Law
805 N Main Street
P O Box 883
Carroll, Iowa 51401
1801; 1803; 2602
Filed November 18, 1992
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
PATTY A. MOHR,
Claimant,
vs.
File No. 942474
ADAIR COMMUNITY HEALTH CENTER,
A P P E A L
Employer,
D E C I S I O N
and
ALLIED MUTUAL INSURANCE
COMPANY,
Insurance Carrier,
Defendants.
____________________________________________________________
1801; 1803
Claimant awarded temporary total disability benefits as a
result of a fall on defendants' parking lot. Claimant did
not prove her entitlement to permanent partial disability
benefits. All objective tests were in the normal range.
There were only muscle spasms. There was no objective
evidence to support claimant's claim.
2602
Both physicians were eminently qualified to render an
opinion. The opinion of Dr. Cotton given greater weight
because of his greater experience and his expertise in the
area involved in the injury. The number of visits to a
particular physician is but one factor to consider when
weighing opinions of medical practitioners.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
PATTY A. MOHR, :
:
Claimant, :
:
vs. :
: File No. 942474
ADAIR COMMUNITY HEALTH CENTER, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
ALLIED MUTUAL INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition
of claimant, Patty Mohr, against her employer, Adair
Community Health Center, and its insurance carrier, Allied
Mutual Insurance Company, defendants. The case was heard on
May 6, 1992 at the Industrial Commissioner's office in Des
Moines, Iowa. The record consists of the testimony of
claimant. The record also consists of the testimony of
Donald P. Larsen, restauranteur; Dennis Mohr, spouse of
claimant; and Arlene Wedemeyer, R.N., company nurse.
Additionally, the record consists of claimant's exhibits
1-23 and defendants' exhibits A-L.
ISSUES
The issues to be determined are: 1) whether claimant's
condition is causally related to claimant's work injury of
March 7, 1990; and 2) whether claimant is entitled to
temporary total disability or healing period benefits or any
permanency benefits.
STATEMENT OF THE CASE
Claimant is 34 years old. She is married and the
mother of five children. While claimant dropped out of
school after completing the ninth grade, she did receive a
GED. Claimant currently holds a certificate as a nurse's
aide.
Prior to March 7, 1990, the date of claimant's work
injury, claimant worked as a nurse's aide and/or restorative
aide for defendant-employer. Her duties included ambulating
patients, performing range of motion exercises, dressing
patients, feeding them, and assisting them with other tasks.
Page 2
On the date in question, claimant arrived at 4:00 a.m.
She exited from her car and slipped on icy pavement in
defendant-employer's parking lot. Claimant completed an
incident report and she noted that she had struck her arm
and head on the concrete.
At approximately 7:00 a.m., claimant left work because
of a severe headache. She later sought medical care from
the company physician, Mark Johnson, M.D. He treated
claimant in the Cass County Memorial Hospital for
approximately one week. Dr. Johnson diagnosed claimant's
condition as: "Cerebral contusion, concussion, not
responding, secondary to trauma" (Exhibit 14, page 97). Dr.
Johnson modified his diagnosis to: "Probable muscle spasms
with no other radiographic abnormalities." (Ex. 19, p. 118)
Dr. Johnson referred claimant to Joseph M. Doro, D.O.,
who placed claimant in the Mercy Medical Center.
Dr. Doro diagnosed claimant's condition as: "IMPRESSION:
This woman has injury to her neck and there is a question
whether she had a brainstem contusion or a cervical cord
contusion is raised." (Ex. 18, p. 105)
Several diagnostic tests were conducted. The
examinations were negative. No abnormalities were
discovered of the skull and spine.
Theodore W. Rooney, D.O., examined claimant pursuant to
a request by Dr. Johnson. Dr. Rooney opined that:
ASSESSMENT:
(1) She has subacute neck, right shoulder, upper
back pain which still seems most
compatible with that of myofascial pain. She
also had right gluteal pain. All of these
areas are the sites of previous
contusion, which seems to account for these
features. I am a little concerned because of the
localizing features about the right shoulder that
she may actually have partial rotator cuff tear,
which could also be contributing to her chronic
pain. I do not find anything to suggest systemic
inflammatory arthritis, etc.
Page 3
RECOMMENDATION:
(1) Many chronic pain managements techniques have
already been done to date. I have recommended we
try her on some Amitriptyline, l0-20 mgs. at h.s.,
because of her poor sleep pattern.
(2) I have had the nurse educator go over
relaxation techniques and other chronic
pain management techniques along
with stretch and flex exerciss [sic]
twice a day.
(3) Ice Alternating with heat.
(4) I have encouraged her to try to get back to an
aerobic exercise regimen.
(5) Scheduled her for a three-phase bone scan to
evaluate the right shoulder girdle to make sure
there is no anatomical abnormalities. Pending
that report we may or may not need to do an
MRI of the shoulder to rule out rotator
cuff tear.
(6) She is to call me after the above for further
recommendations to follow.
(Ex. 11, p. 93)
On September 24, 1990 claimant met with Thomas W.
Bower, LPT, for a functional capacities test. In his
report, Mr. Bower wrote:
FUNCTIONAL CAPACITY TESTING:
The patient was requested to lift from a floor to
waist position and was virtually unable to
accommodate any weight from a floor to waist lift.
She recorded her pain with no resistance on the
BTE unit to be a level 10 and stated that she
would assess it as needing two Advil and going to
bed. Knee to chest and overhead lift also
demonstrated a person unable to lift any amount of
weight with a level 8 pain experienced. Virtually
no functional activity was accomplished in this
exam. A squat time of 30 seconds was recorded and
the patient was constantly moving in this position
and telling me it was very uncomfortable. Only 8
repetitive squats were accomplished. The patient
basically tells me she can sit all day with proper
support but is unable to sit with any kind of back
support that is up against her shoulder blades. A
standing maximum time of 30 minutes is recorded
but that is somewhat dependent on the type of
surface she is standing on. She walks three times
a week, approximately 1/2 mile each time. Pulse
rates did not change following the completion of
the work activity.
Page 4
AREAS OF DIFFICULTIES:
Certainly far and away the most specific area of
inconsistency is the patient's perceived pain
experience. She has recorded her pain levels to
be in a level 10 which were very carefully defined
to her as a bedridden situation and clearly she
was not. Certainly strength and endurance are
decreased, but most of the activity is terminated
on the basis of pain ratings.
IMPRESSIONS AND RECOMMENDATIONS:
It does not appear that we are going to be
successful in returning this patient back to a
viable work situation until pain level responses
are dealt with. Certainly some form of pain
management is necessary if we're going to be
successful in further treating this individual.
No work hardening or any other physical experience
would be advocated at this time.
On the basis of this testing, it would be
considered an invalid, or certainly a
conditionally valid representation and certainly
pain level responses were the primary reason for
this. We are unable to make any specific estimate
since no work was really accomplished in this
functional testing as to her work level classifi
cation.
(Ex. 7, pp. 83 & 84)
Claimant participated in physical therapy for several
months. She engaged in exercises and had various other
conservative modes of treatment.
Claimant also had developed some minor psychological
difficulties. She was hospitalized briefly for "adjustment
disorder with depressed mood." (Ex. 6, p. 77) Claimant
returned to her family and day-to-day activities subsequent
to her hospital stay.
Claimant returned to work on October 1, 1990. She
avoided lifting patients but she did push wheelchairs. On
November 27, 1990, claimant moved from Adair, Iowa to
Elkhorn, Iowa because her spouse secured a new job. She
terminated her position with defendant-employer. At the
time of her separation, claimant had obtained other
employment. She was hired by the Hy-Vee store in Atlantic,
Iowa. Claimant worked in the Hy-Vee deli but left that
position to work in her hometown at the Danish Inn.
At the time of the hearing, claimant was employed as a
cook and a waitress. She earned $5.50 per hour as a cook
and $4.65 per hour plus tips for work performed as a
waitress. Her supervisor, Donald P. Larsen, restauranteur,
described claimant as an exceptional employee.
CONCLUSIONS OF LAW
Page 5
The first issue to address is whether there is a causal
relationship between claimant's work injury and her alleged
condition.
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
There is sufficient evidence claimant has established
the requisite causal connection. Both Dr. Johnson (p. 96)
and Dr. Doro (p. 99) attribute claimant's problems to her
work injury on March 7, 1990. Dr. Mary-Franklin G. Paulus,
M.D., concurs with their opinion relative to causal
connection. (Ex. 1, p. 7, lines 17-25). Medical evidence
establishes claimant's causal relationship with her work
injury.
The next issue deals with the nature and extent of
claimant's condition. Claimant alleges she has sustained a
permanent disability. She maintains she has an industrial
disability.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson v. Goodyear Serv. 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. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
Page 6
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
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 the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. 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 as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
The opinions of the two evaluating physicians vary
vastly. Dr. Paulus opines that claimant is functionally
impaired in the area of 35 to 40 percent. (Ex. 1, p. 9, ll.
25 through p. 10, l. 5) She bases her opinion on the
following:
We now will attempt to list the percent
impairment for these various findings.
Cervical flexion at 20o with a loss of 40o = 4%
of the whole person
Hyperextension at 50o with a loss of 25o = 2%
of the whole person
Cervical rotation left 40o with a loss 40o = 2%
Page 7
of the whole person
Cervical rotation right 60o loss of 20o = 1%
of the whole person
Left Cervical lateral tilt 15o loss of 30o = 2%
Right Cervical lateral tilt 45 normal 0
Lumbosacral forward flexion (p. 91 of 3rd
edition AMA Guides), 45o = 2% W.P. in
view of straight leg raising abnormality
seen above
Lumbosacral hyperextension of 10o with loss of
15o = 5% W.P.
Loss of strength of grip on right side @ 10
kg/force vs. 24 kg/force on left represents
a loss of 58% of strength (10 kg î 24 kg =
42% or loss of 58%,)multiplied
by the maximum allowable % for that
level for the median nerve, represents 35%
58% x 35% = 20%
These calculations do not include the suspicion of
weakness of the peroneii on the right side, as
evidenced by the abnormal shoe-wear pattern, the
weakness detected clinically, and the calf atrophy
measurement above.
The impression is: Closed head trauma with
concussion Cervical strain with
possible cord injury
Contusion right shoulder
Low Back strain with
possible HNP
Adjustment Disorder with
Depressed Mood
History of Fibromyositis
Comment: This patient obviously had severe injury
to the head and neck as well as the lumbosacral
spine, in decreasing order of severity. The fact
that the CAT
Page 8
scan and the MRI did not show damage does not
change the fact that physiologic damage of the
central and peripheral nervous system did occur
(initial concussion, with right facial and right
arm paralysis). The concussion did not resolve
for a full 3 days and the paralysis pattern took
even longer. I think this patient has been
severely affected by this accident, not only
physically, but by the emotional stress involved
as well. It seems a bit strange also that she
never received any cervical traction during her
entire physical therapy course, but this may be
only a small matter. She may still receive
improvement from it, even at this late hour. I
feel this patient is attempting to overcome the
affects of this accident, and to resume a normal
life style as soon as possible. She appears to be
anxious to return to a more professional
work-force.
(Ex. 3, pp. 67-68)
She practices in orthopedic surgery and is eligible for
board certification. Dr. Paulus has examined claimant on
one occasion, June 4, 1991.
There is a contrary opinion by Dr. Cotton. He opines
that claimant is not functionally impaired. He diagnoses
claimant as having "diffuse subjective pain of uncertain
etiology." Dr. Cotton further opines that:
I felt there was no evidence of any permanent
partial impairment or subsequent disability
according to the AMA Guides, Third Edition,
Revised.
(Ex. E, p. 8, ll. 20-22)
In his deposition, Dr. Cotton further opines that:
I found no objective abnormalities on her physical
examination that would account for the degree or
the type or the persistence of the symptoms that
she describes to the doctors.
(Ex. E, p. 30, ll. 12-15)
Dr. Cotton, like Dr. Paulus, has examined claimant on
one occasion, March 31, 1992. Dr. Cotton is board certified
in neurology and in electrodiagnostic medicine.
It is the determination of the undersigned that both
physicians are eminently qualified to render an opinion.
Both physicians are experienced. Each one's opinion is
divergent from the other. Therefore, it appears one
expert's opinion cancels out the opinion of the other.
Other forms of evidence are to be considered. Equal weight
is given to each physician's opinion.
Objective test results are all in the normal range.
Page 9
Two CT scans are normal. An MRI is normal. Dr. Doro, a
specialist in neurology, has diagnosed claimant as having an
acute cervical and thoracic strain. Dr. Doro has not
provided any functional impairment rating. Dr. Johnson, as
of September 26, 1990, has treated claimant for
"fibromyalgia/fibrositis." (Ex. 5, p. 71) All he notes, as
far as objective signs of claimant's condition, are muscle
spasms.
Currently, claimant only takes aspirin for pain.
Records indicate that claimant has last seen her treating
physician, Dr. Johnson on October 24, 1990.
After reviewing the entire record and hearing the
testimony, as well as visibly observing the claimant, it is
the decision of the undersigned that claimant does not have
a permanent partial disability. No objective evidence
supports her claim.
Claimant, however, has sustained a temporary total
disability pursuant to section 85.33(1). The section
provides that:
Except as provided in subsection 2 of this
section, the employer shall pay to an employee for
injury producing temporary total disability weekly
compensation benefits, as provided in section
85.32, until the employee has returned to work or
is medically capable of returning to employment
substantially similar to the employment in which
the employee was engaged at the time of injury,
whichever occurs first.
The record establishes that claimant was off of work
from March 7, 1990 until she returned to full time work on
October 1, 1990. At that time she returned to defendant's
business establishment as a restorative aide, a position
which she held prior to the date of her injury. Claimant,
as a consequence, is entitled to 29.714 weeks of temporary
total disability benefits at the stipulated rate of $170.04
per week. Prior to the hearing, defendants had paid
claimant 29.429 weeks of compensation at the proper rate.
THEREFORE, IT IS ORDERED:
Defendants shall pay claimant point two-eight-five
(.285) weeks of temporary total disability benefits at the
rate of one hundred seventy and 04/l00 dollars ($170.04) per
week.
Accrued benefits are to be paid in a lump sum together
with statutory interest at the rate of ten percent (10%) per
year pursuant to section 85.30, Iowa Code, as amended.
Defendants shall file a claim activity report as
requested by this division and pursuant to rule 343 IAC 3.l.
Costs are taxed to defendants pursuant to rule 343 IAC
4.33.
Page 10
Signed and filed this ____ day of June, 1992.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. E. W. Wilcke
Attorney at Law
826 1/2 Lake Street
P O Box 455
Spirit Lake, Iowa 51360
Ms. Judith Ann Higgs
Attorney at Law
701 Pierce Street STE 200
P O Box 3086
Sioux City, Iowa 51102
Mr. Russell S. Wunschel
Attorney at Law
805 N Main Street
P O Box 883
Carroll, Iowa 51401
1801; 1803
Filed June 22, 1992
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
PATTY A. MOHR, :
:
Claimant, :
:
vs. :
: File No. 942474
ADAIR COMMUNITY HEALTH CENTER, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
ALLIED MUTUAL INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1801; 1803
Claimant was awarded temporary total disability benefits as
a result of a fall on defendants' parking lot. Claimant did
not prove that she was entitled to permanent partial
disability benefits. All objective tests were in the normal
range. There were only muscle spasms. There was no
objective evidence to support claimant's claim.