Page 1
before the iowa industrial commissioner
____________________________________________________________
:
BRENDA MICKEY, :
:
Claimant, :
:
vs. :
: File No. 942585
MERCY HOSPITAL, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant. :
:
___________________________________________________________
introduction
This is a proceeding in arbitration filed by Brenda
Mickey, claimant, against Mercy Hospital, employer, and
self-insured defendant, for benefits as a result of an
alleged injury that occurred on February 27, 1990. A
hearing was held at Council Bluffs, Iowa, on May 12, 1992,
and the case was fully submitted at the close of the
hearing. Claimant was represented by Jacob John Peters.
Defendant was represented by Robert V. Roach and Richard D.
Crotty. The record consists of the testimony of Brenda
Mickey, claimant, and joint exhibits 1 through 10. Claimant
presented an excellent hearing brief at the time of the
hearing.
preliminary matter
The issue shown on the hearing assignment order of
whether defendant is entitled to a credit for benefits paid
to claimant prior to hearing under a nonoccupational group
health plan pursuant to Iowa Code section 85.38(2), was
withdrawn by defendant at the time of the hearing, because
claimant stipulated to the credit.
issues
The parties submitted the following issues for
determination at the time of the hearing:
1. Whether claimant sustained an injury on February
27, 1990, which arose out of and in the course of employment
with the employer;
2. Whether the injury was the cause of either
temporary or permanent partial disability;
3. Whether claimant is entitled to temporary or
permanent disability benefits, and if so, the extent of
benefits to which she is entitled.
findings of fact
Page 2
injury
It is determined that claimant sustained an injury to
her lumbosacral spine on February 27, 1990, which arose out
of and in the course of her employment with employer.
Claimant is an approximate six year employee of
employer. She started to work for employer in January of
1985 and worked until the date of this injury on February
27, 1990, plus a period of approximately another five months
from April to September in 1990.
Claimant testified that her job was physically
demanding. She worked in the housekeeping department
performing janitorial work in the executive office building
of employer. Her duties included (1) cleaning and mopping
floors; (2) picking up large containers of trash; (3)
carrying them to the first floor for disposal; and (4)
dumping trash into dumpsters. She testified that she was
required to do a considerable amount of bending and lifting.
Claimant denied any previous injuries or accidents either
caused by employment or sources outside of her employment.
This employment was her only employment after graduating
from high school. Claimant found that hauling the bags of
trash from four different floors to the dumpster and lifting
them over her head to put them in the dumpster was
particularly strenuous.
At the time of this injury, claimant had been cleaning
underneath a table on her hands and knees with a dustpan and
whisk broom. She testified that when she came out from
underneath a table and stood up she suddenly felt pain in
her right side and lower back. She reported the injury to
her supervisor. An accident report was filled out and
claimant was sent to the emergency room. Claimant described
the experience as a feeling of pressure below her belt like
something was sticking out of her back and causing pain down
both legs. The emergency room took x-rays, prescribed
medications, and took her off work for four days. At the
end of that time, she was feeling worse and the health nurse
sent her to see James R Rochelle, M.D., an orthopedic
surgeon.
Dr. Rochelle saw claimant on March 5, 1990, and March
12, 1990, for sudden onset of low back and right leg pain on
February 27, 1990. On March 26, 1990, he changed his
diagnosis of probable herniated lumbar disc to lumbar
strain, after an MRI was normal. He continued medications
and physical therapies.
On May 15, 1990, claimant was doing quite well, had a
good range of motion and only mild pain in the low back with
certain repetitive activities. He said she was much better
able to tolerate her work. His final diagnosis was chronic
lumbar strain, no permanent disability.
Claimant returned to work on April 18, 1990, but her
back kept getting worse. The constant demands of the job
were too much. She returned to see Dr. Rochelle on
September 17, 1990, at which time he took her off work a
Page 3
second time. He prescribed physical therapy, but no
medications because she was pregnant at this time. Her
child was born December 11, 1990, but the back pain was just
as bad after the child was born and in addition began to go
up her back to her arms. She tried a TENS unit again and a
new corset. A second MRI was also normal, but as time went
by she felt like she became worse.
On September 17, 1990, Dr. Rochelle reported recurrent
lumbar strain with radicular component, possible disc bulge
or herniation. On October 1, 1990 and October 23, 1990, he
reported that she was worse on each occasion. On January
10, 1991, the second MRI was ordered. On January 23, 1991,
he reported the MRI was negative. On February 5, 1991, he
ordered a caudal block followed by a series of injections
which were performed on February 14, 1991. On February 26,
1991, Dr. Rochelle reported that the injections did not help
her, she remained essentially unchanged with a diagnosis of
chronic lumbar strain. He commented that she should
probably be precluded from jobs entailing moderate to heavy
lifting on a repetitive basis. On March 19, 1991, he said
claimant had reached maximum medical improvement with 50
percent of normal flexion and 75 percent of normal rotatory
and lateral bending in both directions. The final diagnosis
was chronic lumbar strain. Dr. Rochelle said that claimant
should get on with her life in terms of other vocational
possibilities. He issued a permanent restriction of no
lifting of greater than 10 pounds occasionally.
Dr. Rochelle gave a final report to claimant's attorney
on March 28, 1991. He said her low back injury was caused
by her employment at Mercy Hospital; that she will not be
able to return to her former employment in housekeeping at
Mercy Hospital; that her permanent restrictions were no
lifting of greater than 10 pounds occasionally and no
repetitive stooping, bending, squatting or kneeling; and
that her permanent disability rating was 6 percent of the
body as a whole. He added that she was not a good candidate
for surgery in the future, and that she will have to learn
to live with a good deal of this pain for the indefinite
future (Joint Exhibits 1 and 2).
Defendant disputed the extent of disability but the
evidence of injury was not controverted, contradicted,
rebutted or refuted.
Wherefore, it is determined that claimant sustained and
injury to her lumbosacral spine on February 27, 1990, which
arose out of and in the course of employment with employer.
causal connection - entitlement - temporary disability
It is determined that the injury of February 27, 1990,
was the cause of temporary disability. There was no
evidence of any other cause for claimant's disability.
Claimant denied and there was no evidence of any prior
accidents or injuries to her back. Dr. Rochelle said that
the incident of February 27, 1990 was the cause of her
disability.
Page 4
The parties stipulated that claimant's entitlement to
temporary disability benefits if defendant was found liable
for the injury was for the period from February 28, 1990
through April 17, 1990 (a period of 7 weeks), and a second
period of time from September 12, 1990 through June 11, 1991
(a period of 39 weeks), for a total period of 46.0 weeks (7
plus 39).
causal connection - entitlement - permanent disability
It is determined that the injury of February 27, 1990
was the cause of permanent disability for the same reasons
that it was determined to be the cause of temporary
disability. In particular, Dr. Rochelle said that the
injury was the cause of her disability.
It is further determined that claimant has sustained a
15 percent industrial disability to the body as a whole and
is entitled to 75 weeks of permanent partial disability
benefits.
An independent medical examination was performed by
Anil K. Agarwal, M.D., an orthopedic surgeon, on May 31,
1991. Dr. Agarwal reported on June 4, 1991, that he
examined claimant for low back pain with radiation of pain
to the right leg. He related that claimant was five foot
one inch tall and weighed 172 pounds. His physical
examination was essentially normal except that she reported
pain with the knee and hip flexed. Lumbar spine x-rays were
normal; disc spaces were well maintained.
Dr. Agarwal diagnosed mild lumbar strain, with
significant functional overlay. He said that clinically and
radiologically, he failed to find any objective findings to
suggest that she cannot return to work. He stated that he
believed she could return to her regular duties, gradually
with a beginning weight restriction of about 25 to 30 pounds
for lifting and to avoid repeated bending and stooping. Dr.
Agarwal said that he saw a lack of motivation on her part to
return to work. He said that she could return to work with
a back support if she wishes.
Dr. Agarwal concluded by stating that clinically,
radiologically, and with repeated MRI scans, there was no
objective evidence of any abnormal findings suggestive of
any permanent injury. He concluded by stating: "I
therefore believe that she did not sustain any permanent
disability."
Jim Weiss, M.A., C.R.C, a rehabilitation consultant,
performed an evaluation of claimant in the presence of her
attorney on May 21, 1991. He reported that claimant
indicated that she was experiencing daily pain with a
numeric value of 8 on a scale of from 0 to 10. Mr. Weiss
related that claimant was a high school graduate but was not
involved in any extracurricular programs and has not
completed any further education or training after high
school. He said lifting requirements were up to a maximum
of 50 pounds in her housekeeping job but her average lifting
was 25 to 30 pounds. The only marketable skill which she
Page 5
could use was commercial cleaner, medium, unskilled. Weiss
said her vocational options with her transferable skill and
consistent with her past employment would be (1) central
supply hospital worker, or (2) residential house cleaner,
both of which were light strength demand jobs. He added
that she would also be qualified for (1) hospital laundry
worker, (2) private laundry worker, or (3) janitorial
positions which are medium strength demand jobs. He said
these jobs exist in sufficient numbers in Council Bluffs,
Iowa, and all jobs provide wages consistent with her
previous wage of $5.58 per hour.
Weiss recognized the conflict between Dr. Rochelle and
Dr. Agarwal. He said considering Dr. Agarwal's opinion, Dr.
Rochelle's opinion, and claimant's opinion, all three, that
claimant should still have full access to sedentary and
light strength demand jobs, with access to a large number of
medium strength demand jobs. He said these jobs would all
provide her with the opportunity to sit, stand, and walk
during a normal eight hour work period. Weiss concluded:
"In considering all above factors (objective and
subjective), I find Ms. Mickey has sustained a Loss of
Earning Capacity in the range of 5 to 10%" (Ex. 5, p. 4).
Claimant's young age of 26 years tends to reduce her
industrial disability. Because of her youth, she has many
years to perform productive work within her limitations and
lengthy opportunity to retrain for other employment. Becke
v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the
Industrial Commissioner 34 (Appeal Decision 1979); Walton
v. B & H Tank Corp., II Iowa Indus. Comm'r Rep. 426 (1981);
McCoy v. Donaldson Company, Inc., file numbers 782670 &
805200 (Appeal Decision 1989)
Claimant has a high school education which places her
on a par with most employees in the competitive labor
market. She is also capable of retraining. Conrad v.
Marquette School, Inc., IV Iowa Industrial Commissioner
Report 74, 89 (1984). She has already completed a word
processing course. She is also capable of various
on-the-job training programs.
There is a dispute between Dr. Rochelle and Dr. Agarwal
as to whether claimant can return to her former employment
as a housekeeper, also described as an environmental
services technician at Mercy Hospital in Council Bluffs,
Iowa. Dr. Agarwal thought that she could gradually resume
these duties within a 25 to 30 pound limitation and freedom
from repetitive bending and lifting. However, according to
claimant, a large part of the job entails bending and
lifting an average of 25 to 30 pounds and up to a maximum of
50 pounds. The opinion of Dr. Rochelle is preferred over
the opinion of the one time examiner, Dr. Agarwal, whose
examination was specifically for the purpose of litigation.
Dr. Rochelle on the other hand, who is the treating
physician, was responsible for claimant's care and the
ultimate success or failure of has not sought vocational rehabilitation through the State
of Iowa or privately on her own volition.
Claimant testified that she has been seeking employment
in secretarial or clerical work which did not require any
lifting or bending but noted her lack of experience or
training as a secretary or clerical worker prevented her
from getting a job.
Claimant cited a lack of finances in order to attend
college. It seems that some kind of academic retraining
will be required if claimant is to be able to perform
sedentary, light or medium work of a clerical or secretarial
nature. In the past, claimant has always performed medium
or heavy work. Education or training is normally expensive.
The cost of the instruction (tuition, fees, books,
transportation) as well as time lost from compensble
employment combine to increase claimant's industrial
disability.
Claimant stated that she has made inquiries at several
places of employment and completed approximately 15 to 20
applications but she had no call-backs or interviews. She
had no response from her application with employer that she
made shortly before the hearing. If employer had wished to
mitigate industrial disability employer could have responded
promptly. If claimant had wished to be employed by employer
she could have applied for re-employment sooner.
Claimant contended that she is no longer able to bend,
lift, do laundry, perform housework, vacuum, or clean
floors. Her pain is in her lower back and down her right
leg and sometimes goes all the way to her toes. Her family
helps her with her baby and chores. It painful for her to
Page 7
ride in a car.
Claimant acknowledged that she has not applied for any
grants or help from colleges.
Claimant testified that Weiss did not try to place her
in any particular employment nor did he administer any tests
in making his evaluation.
It is noted that none of the physicians recommended a
myelogram or a CT scan which indicated that they were
satisfied with their diagnosis of lumboscral strain based
upon the x-rays and MRI scan. It is also noted that none of
the physicians recommended any surgery. There was no
evidence of either of bulging or herniated disc.
Wherefore, based on (1) a permanent impairment rating
of 6 percent to the body as a whole; (2) permanent
restrictions from the treating physician to not lift more
than 10 pounds and to perform no repetitive stooping,
bending, squatting or kneeling; (3) that these restrictions
foreclosed claimant from performing her former employment as
an environmental services technician (housekeeper) for
employer; (4) the fact that employer has had no work that
claimant could do in spite of the fact that the vocational
rehabilitation specialist enumerated several jobs which are
normally available in the employer's operations; (5) that
claimant was formerly capable of heavy work and is now
limited to either sedentary, light or medium work; (6) based
upon claimant's young age of 26; (7) based upon claimant's
high school education and ability for either academic or
on-the-job training; (8) considering that Dr. Agarwal
thought there was a significant functional overlay element
in claimant's symptomology and Weiss felt that claimant's
subjective limitations were not consistent with the medical
findings; (9) based upon all the factors used to determine
industrial disability, Peterson v. Truck Haven Cafe, Inc.,
vol. 1, no. 3 State of Iowa Industrial Commissioner
Decisions 654, 658 (Appeal Decision February 28, 1985),
Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa
Industrial Commissioner Decisions 529 (Appeal Decision March
26, 1985); and, (10) employing agency expertise Iowa
Administrative Code 17A.14, it is determined that claimant
has sustained a 15 percent industrial disability and is
entitled to 75 weeks of permanent partial disability
benefits.
conclusions of law
Wherefore, it is determined that claimant did sustain
the burden of proof by a preponderance of the evidence that
she sustained an injury to her lumbosacral spine on February
27, 1990, which arose out of and in the course of her
employment with employer. Iowa Code section 85.3, paragraph
1; 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).
Claimant sustained the burden of proof by a
preponderance of the evidence that the injury of February
Page 8
27, 1990, was the cause of both temporary and permanent
disability; Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18
N.W.2d 607 (1945).
Claimant is entitled to 46.0 weeks of healing period
benefits as stipulated to by the parties. Iowa Code section
85.34(1).
Claimant has sustained a 15 percent industrial
disability to the body as a whole and is entitled to 75
weeks of permanent partial disability benefits. Iowa Code
section 85.34(2)(u).
order
THEREFORE, it is ordered:
That defendant pay to claimant forty-six (46) weeks of
healing period benefits at the stipulated rate of one
hundred forty-one and 92/100 dollars ($141.92) per week in
the total amount of six thousand, five hundred twenty-eight
and 32/100 dollars ($6,528.32) commencing on February 28,
1990, as stipulated to by the parties.
That defendant pay to claimant seventy-five (75) weeks
of permanent partial disability benefits at the stipulated
rate of one hundred forty-one and 92/100 dollars ($141.92)
per week in the total amount of ten thousand six hundred
forty-four dollars ($10,644) commencing on June 12, 1991, as
stipulated to by the parties.
That defendant is entitled to a credit for seventy-one
(71) weeks of workers' compensation benefits paid to
claimant prior to hearing at the rate of one hundred forty-
one and 92/100 dollars ($141.92) per week in the total
amount of ten thousand seventy-six and 32/100 dollars
($10,076.32) and stipulated to by the parties.
That interest will accrue pursuant to Iowa Code section
85.30.
That all accrued benefits are to be paid in a lump sum.
That the costs of this action, including the cost of
the attendance of the court reporter at hearing, as well as
claimant's costs in the amount of one hundred fifteen
dollars ($115) [filing fee $65.00; report of Dr. Rochelle
$50] are charged to defendant pursuant to Iowa Code section
86.40 and rule 343 IAC 4.33.
That defendant file claim activity reports as requested
by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of May, 1992.
Page 9
________________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Jacob John Peters
Attorney at Law
233 Pearl St
P O Box 1078
Council Bluffs IA 51502
Mr Robert V. Roach
Attorney at Law
800 Exchange Bldg
1905 harney St
Omaha NE 68102
Mr Richard D Crotty
Attorney at Law
311 First Federal Bldg
Council Bluffs IA 51503
5-1106; 5-1401; 5-1402.20;
5-1402.30 5-1108.50;
5-1402.40; 5-1803
Filed May 18, 1992
Waltner R. McManus
before the iowa industrial commissioner
____________________________________________________________
:
BRENDA MICKEY, :
:
Claimant, :
:
vs. :
: File No. 942585
MERCY HOSPITAL, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant. :
:
___________________________________________________________
5-1106; 5-1401; 5-1402.20; 5-1402.30
Claimant sustained an injury to her lumbosacral spine that
occurred when she stood up after cleaning under a table.
5-1108.50; 5-1402.40
The injury was the cause of both temporary and permanent
disability according to the treating physician.
5-1802
Claimant was entitled to temporary disability for the period
stipulated to by the parties.
5-1803
Claimant awarded 15% industrial disability--6% impairment
rating; foreclosed from previous housekeeping job: ten
pound weight restriction; removed from heavy to sedentary,
light and medium categories of work; age 26; high school
education; needs retraining for new work which will cost
money.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
GARY L. WULF, :
:
Claimant, :
:
vs. : File No. 942776
:
DOUBLE CIRCLE FARM SUPPLY, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
AETNA CASUALTY & SURETY :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
STATEMENT OF THE CASE
Claimant Gary L. Wulf suffered a work-related back
injury on August 28, 1989. He has filed a petition in
arbitration seeking benefits under the Iowa Workers'
Compensation Act from his employer, Double Circle Farm
Supply, and its insurance carrier, Aetna Casualty & Surety
Company.
This cause came on for hearing in Sioux City, Iowa, on
April 30, 1992. Claimant and Tim Rasmussen testified at
hearing (Rasmussen's deposition of March 10, 1992, is also
in evidence). Claimant's exhibits 1 and 3 through 16 were
received into evidence. Claimant's exhibit 2 was excluded
upon objection.
ISSUES
The parties have stipulated that claimant sustained an
injury arising out of and in the course of his employment on
August 28, 1989. They agree that the injury caused
intermittent temporary disability, the extent of which is no
longer in dispute, and permanent disability, the extent of
which is in dispute. The parties have stipulated to the
rate of compensation ($173.15 per week) and agree that
entitlement to medical benefits is not in dispute.
Page 2
Issues presented for resolution include:
1. The extent of permanent disability; and,
2. The amount of credit to which defendants are
entitled for benefits voluntarily paid.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
Gary L. Wulf, 39 years of age at hearing, is a 1971
high school graduate, being a "C" student in the
vocational/agricultural program. His only further education
consists of two night classes taken last year, one in
mathematics and one in development of study skills.
Mr. Wulf grew up on a farm. His work history consists
mostly of farm work, largely on a part-time basis. He also
worked six years in a grain elevator. Except for employment
as a deputy assessor, all of claimant's employment
experience is in relatively heavy manual labor.
Double Circle Farm Supply hired claimant as a general
laborer in January 1988, at a starting wage of $5.00 per
hour. Prior to the work injury, claimant performed such
duties as driving truck, mixing fertilizer and the operation
of spraying equipment in fields.
Mr. Wulf was injured on August 28, 1989, when he fell
through the loading dock while carrying a bag of seed. One
leg broke through a weakened plank, resulting in an awkward
fall to his buttocks, the one leg only going clear through.
Claimant continued to work, but back symptoms and
radiating pain progressively increased. Accordingly, he
underwent surgery for a herniated disc at L4-5 in March 1990
with initially good results. However, symptoms quickly
returned and a second surgical procedure at the same level
was carried out in August 1990.
Claimant now suffers a multi-surgical failed back
syndrome. Magnetic resonance imaging undertaken on January
28, 1991, revealed extensive residual scar tissue involving
the left L5 nerve root. A third surgical procedure was
considered by Thomas A. Carlstrom, M.D., (the treating
surgeon) and, on consultation, by Douglas R. Koontz, M.D.,
and Robert E. Steg, M.D., of the Department of Neurology,
Creighton University Medical Center. Because claimant's
continued symptoms appear related to the post-surgical
development of scar tissue rather than additional
Page 3
herniation, additional surgery has been ruled out at this
time.
Claimant's current medical restrictions, imposed by Dr.
Koontz effective July 2, 1991, are as follows:
1. No lifting in excess of 20 pounds.
2. No repetitive bending, twisting, pushing or
pulling.
3. Must be able to alternate positions every
15-20 minutes.
Dr. Steg advised against any heavy lifting or carrying
and recommended vocational rehabilitation, since he
considered a line of work away from "labor related jobs,
specifically farming" to be important.
So far, defendants have been able to accommodate
claimant's limitations. He is now earning $.50 more per
hour ($5.85) than was the case on the date of injury. A
vacancy fortuitously occurred when the former branch manager
resigned. Claimant is currently performing many of those
"inside" duties, answers the telephone and sells feed and
fertilizer products. Indeed, claimant now works an average
of about five hours per week overtime and also acts as
manager of a family farm operated by his brother.
Unfortunately, his current situation is tenuous. Double
Circle has made a corporate decision to defer consideration
of claimant's status until learning the results of this
litigation. It is possible that claimant will be promoted
to fill the branch manager position, but it is also possible
that he will be discharged if another candidate is chosen,
since Mr. Wulf can no longer perform his previous duties and
Double Circle's budget does not allow for another "inside"
worker.
At hearing, defendants filed with this deputy a Form 2A
reflecting that weekly benefits in the sum of $14,321.93 had
been made by September 13, 1991. Of that total, defendants
designated $6,431.31 as healing period, and $7,850.62 as
permanent partial disability. Official notice of that
document is hereby taken under Iowa Code section 17A.14(4).
It is determined that fairness to the parties does not
require an opportunity to contest the facts contained
therein, as claimant was aware of this document at the time
of hearing and elected not to present contrary evidence.
Page 4
CONCLUSIONS OF LAW
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
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
Page 5
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.
Gary Wulf's work experience is almost entirely in
manual labor. It is obvious that his medical restrictions
will foreclose him from future work of that kind. He has
some experience as an assessor and now, is temporarily
performing management work, receptionist work and sales for
defendant. It is not proper to speculate as to claimant's
future career with Double Circle, but if defendants had not
been able to accommodate those restrictions, his industrial
disability would be substantially greater. In the event
that Double Circle now discharges claimant, the extent of
industrial disability can be reconsidered upon a petition
for review-reopening.
It is clear that claimant is at very much of a
competitive disadvantage when one compares his medical
restrictions to his work history. Other than straight
sales, one is hard pressed to think of potential employment
in the agricultural sector that does not involve lifting in
excess of 20 pounds, not to mention repetitive bending,
twisting, pushing or pulling. Claimant is foreclosed from
truck driving by the requirement that he be able to change
positions every 15-20 minutes. While defendants
characterize Mr. Wulf as a "young man" with a "good
education," this observer is less optimistic. At age 39,
claimant should just be entering his most productive years,
but now finds himself mostly unable to perform the work in
which he has experience. He was an average high school
student in a vocational/agricultural program and has no
other significant education. As of now, claimant is
practically at the mercy of Double Circle Farm Supply, an
employer that has elected to await the outcome of this
litigation before deciding his future.
Considering then these matters in particular and the
record otherwise in general, it is held that claimant has
sustained a permanent industrial disability equivalent to 40
percent of the body as a whole, or 200 weeks.
Page 6
ORDER
THEREFORE, IT IS ORDERED:
Defendants shall pay unto claimant two hundred (200)
weeks of permanent partial disability benefits at the
stipulated rate of one hundred seventy-three and 15/100
dollars ($173.15) per week commencing July 1, 1991.
Defendants shall have credit in the sum of seven
thousand eight hundred ninety and 62/100 dollars ($7,890.62)
for voluntary benefits paid in excess of claimant's healing
period entitlement.
All accrued benefits shall be paid in a lump sum
together with statutory interest pursuant to Iowa Code
section 85.30.
Costs are assessed to defendants pursuant to rule 343
IAC 4.33.
Defendants shall file claim activity reports as
requested by the agency pursuant to rule 343 IAC 3.1.
Signed and filed this ______ day of ____________, 1992.
______________________________
DAVID RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Joseph J. Heidenreich
Attorney at Law
100 Main Street
Odebolt, Iowa 51458
Mr. Joseph L. Fitzgibbons
Attorney at Law
108 North 7th Street
P.O. Box 496
Estherville, Iowa 51334
Ms. Judith Ann Higgs
Attorney at Law
200 Home Federal Building
P.O. Box 3086
Sioux City, Iowa 51102
1703; 5-1803; 2901
Filed July 8, 1992
DAVID RASEY
BEFORE THE INDUSTRIAL COMMISSIONER
____________________________________________________________
:
GARY L. WULF, :
:
Claimant, :
:
vs. : File No. 942776
:
DOUBLE CIRCLE FARM SUPPLY, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
AETNA CASUALTY & SURETY :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
5-1803
Industrial disability was awarded.
1703; 2901
Where credit for voluntary benefits was disputed, official
notice of a Form 2A filed at hearing was taken under
17A.14(4). It was determined in the decision that fairness
to the parties did not require further opportunity to
contest those facts.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
MATTHEW HUBBARD, :
:
Claimant, :
:
vs. :
: File No. 942893
LANCASTER COLONY CORPORATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
AMERICAN MOTORISTS INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration brought by Matthew
Hubbard, claimant, against Lancaster Colony Corporation,
employer, and American Motorists Insurance Company,
insurance carrier, defendants, for benefits as a result of
an injury which occurred on February 1, 1990. A hearing was
held in Des Moines, Iowa on June 25, 1992, and the case was
fully submitted at the close of the hearing. Claimant was
represented by Max Schott. Defendants were represented by
Thomas M. Plaza. The record consists of the testimony of
Matthew Hubbard, claimant, and joint exhibits 1 through 47.
Both attorneys submitted excellent post-hearing briefs.
ISSUES
The parties submitted the following issues for
determination at the time of the hearing:
1. Whether the injury of February 1, 1990, was the
cause of permanent disability;
2. Whether claimant is entitled to permanent
disability benefits, and if so, the extent of benefits to
which he is entitled; and,
3. Whether claimant is entitled to the payment of the
medical bill of John Eilers, D.C.
Page 2
FINDINGS OF FACT
causal connection - entitlement to permanent disability
It is determined that the injury of February 1, 1990,
was the cause of permanent disability; that claimant has
sustained a 25 percent industrial disability to the body as
a whole; and, that claimant is entitled to 125 weeks of
permanent partial disability benefits.
Claimant, born October 18, 1963, was 26 years old at
the time of the injury and 28 years old at the time of the
hearing. His industrial disability is lessened due to the
fact of his young age. Becke v. Turner-Busch, Inc.,
Thirty-fourth Biennial Report of the Industrial Commissioner
34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II
Iowa Indus. Comm'r Rep. 426 (1981); McCoy v. Donaldson
Company, Inc., file numbers 782670 & 805200 (Appeal Decision
1989).
Claimant's industrial disability is not increased due
to his education because he has a high school education and
received better than average grades in school. Furthermore,
claimant has demonstrated his adaptability by performing a
number of different employments prior to and subsequent to
this injury. Conrad v. Marquette School, Inc., IV Iowa
Industrial Commissioner Report 74, 89 (1984).
Claimant's past employments have all involved heavy to
very heavy work. Immediately after high school, he
performed seasonal construction work. He then worked as a
cook and dishwasher in a cafe. Next, he worked in food
preparation of an assembly production nature. He
constructed swimming pools. Claimant testified that all of
these jobs were unskilled jobs which paid between $4.00 and
$6.50 per hour and did not provide him with any transferable
skills. Claimant denied any prior or subsequent injuries or
accidents which would effect the low back injury in this
case and the medical records did not demonstrate any such
injuries or accidents.
Claimant started to work for employer in November of
1985. His employment application showed that he had never
been injured (Joint Exhibit 46). Claimant was employed in
the warehouse for employer at the time of his injury pulling
orders and operating a forklift and electrical palletizer.
He had also performed factory work. Subsequent to the
injury, he drove semi-trucks shagging trailers between the
warehouse and the factory.
On February 1, 1990, following an ice storm, claimant
fell down on his buttocks in the parking lot. He was able
to finish the shift that day and did not report the injury
until a few days later when his symptoms increased.
Claimant's mother suggested that he see John A. Eilers, D.C.
The records of Dr. Eilers show that he first saw
claimant on February 6, 1990. The history shows that
patient fell on ice in the parking lot and hit hard on his
bottom which was causing sharp pain and cramps in his left
Page 3
hip and leg (Jt. Ex. 1). Claimant received several
manipulations, ultrasound treatments and muscle stimulation
treatments (Ex. 2). On March 23, 1990, Dr. Eilers diagnosed
a damaged fifth lumbar disc with pain and cramps radiating
through the sciatic nerve into the left leg with possible
disc damage (Ex. 3). Claimant was taken off work from
February 6 through February 20, 1990, and again from March
6, 1990 to March 12, 1990. He was released for light duty
work on March 14, 1990.
Claimant's care was then transferred to Dr. Terry Van
Oort, who saw claimant one time, ordered an x-ray, and
referred claimant to Peter D. Wirtz, M.D., an orthopedic
surgeon. The x-ray taken on March 22, 1990, of the lumbar
spine was interpreted to be within normal limits (Ex. 6).
Dr. Wirtz saw claimant on May 24, 1990, and ordered a
bone scan (Ex. 7) which was reported as normal (Ex. 7). On
April 4, 1990, the physical examination of Dr. Wirtz was
essentially normal. He diagnosed resolved low back
musculoskeletal strain and said claimant could work without
any restrictions (Ex. 6).
Claimant testified that he continued to have pain and
asked to be seen by Dr. Eilers again because Dr. Eilers
provided relief for his pain but the company refused to pay
for any additional treatment by Dr. Eilers.
Dr. Wirtz ordered an MRI of the lumbar spine on July
16, 1990, which disclosed early type II degenerative changes
at L5/S1 for his age and a large extradural deformity at
L5/S1 compressing and deforming the thecal sac in the left
S1 nerve root.
On August 1, 1990, Dr. Wirtz diagnosed disc
degeneration with nerve irritation in the left leg. He said
claimant should be restricted from forceful, heavy,
stressful activities of bending, twisting and lifting of the
back (Ex. 10). On August 27, he took claimant off work
completely and recommended a laminectomy and disc removal at
L5-S1 (Ex. 11). The surgery was performed on September 10,
1990. Dr. Wirtz estimated that claimant would be off work
for approximately four to six months (Ex. 12).
On January 2, 1991, Dr. Wirtz reported recurrent
symptoms in the buttock and down the left leg with numbness
developing in the plantar aspect of the foot and decreased
feeling over the fifth toe and along the lateral aspect of
the heel. Nevertheless, he said claimant had reached a
plateau of healing. He should avoid excessive bending,
twisting and awkward positions in the back as well as long
standing (Ex. 15).
Claimant was unable to return to work at that time
because of the layoff which was expected to last for
approximately three to seven months (Ex. 16).
On February 4, 1991, Dr. Wirtz said claimant had
reached maximum medical benefit and assessed a 10 percent
impairment to the body as a whole. He ordered a functional
Page 4
capacity examination to determine claimant's lifting
capabilities (Ex. 17).
The functional capacity examination performed on
February 19, 1991, showed that the left hip was lower than
the right and the left knee was generally flexed. The
evaluator said the patient drops the left hip and does not
extend the left knee during gait. He tends to walk with an
externally rotated left leg. It was determined that
claimant is in a medium job category which entails lifting
75 pounds infrequently and 35 pounds frequently (Ex. 18).
On April 4, 1991, Dr. Wirtz confirmed this evaluation was
consistent with his physiologic strength and dexterity and
postoperative condition but might increase over time to an
unlimited work capacity (Ex. 19).
On January 23, 1991, Crawford Rehabilitation was
employed to assist claimant in finding work (Ex. 16).
Dr. Wirtz reported that claimant continued to have
complaints on August 28, 1991 (Ex. 21). Subsequently, Dr.
Wirtz referred claimant to Scott C. Erwood, M.D., who first
saw claimant on October 10, 1991. Dr. Erwood noted that
claimant was better for awhile after surgery for a period of
weeks but then noted renewed discomfort in his lower back
and bilaterally in his lower extremities which has steadily
worsened (Ex. 21). Claimant had taken a job with an
exterminating company in June of 1991 at $6.00 per hour
which required a lot of bending, stooping and working in
awkward positions. It also required lifting 20 and 30 pound
cannisters.
Dr. Erwood noted that claimant was forced to quit this
job on October 1, 1991, because of pain down both legs and
in his lower back. The doctor said his gait was bilaterally
antalgic, left more so than right-sided. A follow-up MRI of
the lumbosacral spine showed postoperative changes at the
L5/S1 level with some scar formation ventrally and around
the left S1 root. Dr. Erwood said his impression was failed
back syndrome, status post L5/S1 discectomy in September of
1990. He recommended a course of physical therapy and a
possible epidural steroid injection (Ex. 21). The MRI did
not show any evidence of recurrent or residual disc
herniation (Ex. 22).
On November 25, 1991, Dr. Wirtz stated that physical
therapy is not indicated or required (Ex. 24). He stated
that claimant was able to work within his physical
restrictions (Ex. 23).
Dr. Erwood wrote on March 6, 1992, that the pain which
claimant was experiencing in his left lower extremity was a
residual of the disc herniation that occurred on February 1,
1990, and led to a subsequent L5/S1 disc surgery (Ex. 25).
Dr. Wirtz also confirmed causal connection of the employment
to the injury and the injury to the disability by a letter
on March 11, 1992, in which he stated that the incident of
January 30, 1990 [sic], of falling on the ice initiated the
low back pain and left lower leg pain which resulted in the
eventual surgery, impairment rating and restrictions (Ex.
Page 5
26).
An independent medical examination was performed for
claimant by Martin S. Rosenfeld, D.O., on April 14, 1992,
who found that claimant did have residual numbness in the
lateral aspect of his left foot with some episodes of pain
in the left posterior thigh and calf which were especially
related to weather changes. He said the postoperative MRI
revealed no evidence of recurrent disc or nerve root
pressure. Dr. Rosenfeld found that the injury of February
1, 1990, and subsequent surgery caused a 15 percent
permanent physical impairment to the body as a whole based
upon the AMA Guides to the Evaluation of permanent
impairment. Dr. Rosenfeld concluded by stating that
claimant will not be able to return to heavy labor or any
type of occupation that requires prolonged bending or
stooping or heavy lifting (Ex. 27).
On May 11, 1982, Dr. Wirtz issued his final
restrictions by stating that the work capacity evaluation
placed claimant in the medium to heavy work category with
limitations on lifting, bending and twisting (Ex. 28).
Claimant testified and contended that Dr. Wirtz told
him that scar tissue was pushing on a nerve. This
contention is not supported by the medical evidence from Dr.
Wirtz or Dr. Rosenfeld, but can be implied from the medical
evidence of Dr. Erwood. It does give a physical explanation
for claimant's continued difficulties. Claimant testified
that Dr. Erwood told him the same thing, that scar tissue
was irritating the nerve. The follow-up MRI requested by
Dr. Erwood does verify "some scar formation ventrally and
around the left S1 root." (Ex. 21) This explanation would
tend to explain Dr. Erwood's diagnosis of failed back
syndrome, status post L5/S1 discectomy in September of 1990
(Exs. 21 and 22). The reports of Dr. Wirtz and Dr. Erwood
and the functional capacity examination all performed after
the surgery verify that claimant definitely has physical
complaints in his back and legs. The physical capacity
examination and Dr. Erwood verify that claimant has an
antalgic left-sided walk (Exs. 18, 20 21 and 22). In any
event, it is clear that the L5/S1 laminectomy was not
completely successful.
In early 1991, Crawford & Company assigned Susan K.
White, M.S., for vocational rehabilitation assistance. On
February 4, 1991, White saw no need for additional
vocational training. She did note that claimant was unable
to ride in a car for more than 45 minutes without taking a
break. She summarized that claimant's previous employments
included digging holes and concrete work to build swimming
pools, cooking and dish washing, running a band saw, meat
fryer and working on an assembly line. As claimant
contended, what White described as transferable
skills---ability to utilize time efficiently, being
dependable, being organized, ability to take and follow
directions and ability to work with people---are in reality
only attributes. It does not appear claimant does in fact
have any real transferable skills. White proposed work in
the sedentary to light work classification (Ex. 30). White
Page 6
imposed a rigorous job search regime on claimant which
required a minimum of six to ten employer contacts per week,
signing up with job service, calling her weekly and mailing
the results of his work to her on a weekly basis (Ex. 32).
White completed several labor market surveys and sent
claimant lists of several prospective employers and
pertinent information about these jobs (Exs. 33-36). On
April 8, 1991, White complained that claimant failed to keep
three scheduled appointments with her and had not followed
up on job leads that were provided to him (Ex. 37).
Claimant admitted that he did not get along well with White
because he felt that she was just trying to "slam" him into
any job rather than assist him to find appropriate work with
some permanency.
Claimant submitted his own personal notes of 57 places
where he had made job applications (Ex. 43). He said some
of these jobs were suggested by White and others he found
for himself.
Claimant testified and White confirmed that claimant
did find good employment as an optical technician making
lenses for eyeglasses. The starting wage was $4.75 per
hour. Claimant testified that he had earned two raises
since he started and was earning $5.50 per hour at the time
of the hearing. At the time of the injury, he was earning
$7.70 with employer and when he was terminated, he was
earning $7.85 per hour (Ex. 38).
Shortly before the hearing in May of 1992, claimant was
offered a job with employer at the same wage rate as at the
time of his injury and within his medical restrictions.
However, claimant was not able to take the job because he
failed a drug screen which was positive for traces of
marijuana in his system (Exs. 38-40). No other specifics
were given about this eleventh hour job offer. Nor was
there an explanation why it was made to claimant a month
prior to his workers' compensation scheduled hearing but had
not been available prior to that time.
Employability reports were prepared by White on May 5,
1992 and May 13, 1992 from which White concluded that
claimant had not sustained any percentage of vocational loss
(Exs. 39-41).
Claimant appears to be motivated to find work and White
commented that claimant was motivated to find work. The
problem seemed to be whether claimant was going to follow
his own methods of finding work or follow the rigorous
regime imposed by White.
It is established that claimant was earning $7.85 per
hour when he was last gainfully employed for employer. It
was also established that he is now earning at the time of
the hearing $5.50 per hour. He is gainfully employed at a
job which he can perform, for which he is suited, which is
appropriate, and which appears to have some long time
permanency connected with it. Based on these numbers,
claimant has sustained a 30 percent actual wage loss.
Page 7
Claimant testified that he still has cramps in his back
and down his legs which appear to be related to the weather.
This has eliminated his ability to play basketball and
frisbee. He is able to bow hunt and fish from the shore.
He is limited in his ability to walk and sit continuously
for longer than one or two hours. He has been able to haul
gravel and brush in his truck. He performs the yard work
for his parents. He is fearful of reinjuring his back.
After he was laid off by employer in January of 1991, he has
not sought work there since. Nor did the employer contact
him until the month prior to the hearing.
In his present job he stands most of the time. He is
hopeful of receiving other raises in the future. He would
accept even better employment if he could find it. He is
not able to perform any of his former employments because
they all involve bending, twisting and heavy lifting. For
the same reason, he is not able to perform the warehouse
work, assembly line work or truck driving work that he
performed for employer prior to this injury.
Claimant denied the allegation of White that claimant
told her he was not going to go to work until he had
obtained the $40,000 which his attorney told him that this
claim was worth. Claimant could not recall whether the
attorney told him he had a $40,000 claim or a 40 percent
claim.
Wherefore, it is determined that the injury of February
1, 1990, was the cause of permanent disability. Based upon
the following, (1) an impairment rating of 10 percent by Dr.
Wirtz, the treating physician, and an impairment rating of
15 percent by Dr. Rosenfeld, the evaluating physician; (2);
the restrictions of Dr. Wirtz that claimant cannot perform
excessive bending and twisting; (3) the restriction of Dr.
Rosenfeld that claimant is restricted from heavy labor or
any type of occupation that requires prolonged bending or
stooping or heavy lifting; (4) the limitation imposed by the
functional capacity examination that claimant can only lift
75 pounds infrequently and 35 pounds frequently and that
claimant now walks with a left sided antalgic walk; (5) that
claimant now suffers from failed back syndrome, status post
the lumbar laminectomy and discectomy of L5-S1 which may be
nerve root irritation caused by post surgical scar tissue
and which is manifested by pain in his back and down his
left leg and lack of sensation in portions of his left lower
extremity which limits his ability to sit or walk to
approximately two hours; (6) that claimant is foreclosed
from his previous unlimited employment opportunities in the
competitive employment market which included heavy and very
heavy lifting and he is now restricted to sedentary, light
or medium work; (7) that claimant is foreclosed from
performing his previous jobs for employer on account of
these restrictions; (8) based on claimant's young age of 26
years at the time of the injury; (9) based on claimant's
high school education and adaptability to learn a number of
different employments in the past and at the present time;
(10) the fact that claimant has few if any transferable
marketable skills; (11) the fact that claimant has
Page 8
demonstrated motivation to work before and after this
injury, to find work and perform it on his own initiative;
(12) the fact that at the time of hearing claimant had
sustained a 30 percent actual loss of earnings; (13) based
upon all the facts in this case; (14) based upon all the
factors used to determine industrial disability, Christensen
v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial
Commissioner Decisions 529 (Appeal Decision March 26, 1985),
Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of
Iowa Industrial Commissioner Decisions 654, 658 (Appeal
Decision February 28, 1985); and (15) applying agency
expertise, Iowa Administrative Procedure Act 17A.14(5), it
is determined that claimant has sustained a 25 percent
industrial disability to the body as a whole.
MEDICAL BENEFITS
It is determined that claimant is not entitled to be
paid for the treatment of Dr. Eilers after he was no longer
authorized by employer and the insurance carrier to see Dr.
Eilers.
The testimony disclosed that Dr. Eilers was paid
several hundred dollars for numerous manual manipulations,
ultrasound treatments and muscle stimulation treatments
around February 6, 1990 up to approximately April 16, 1990.
At that time, claimant admits that employer told him Dr.
Eilers was no longer authorized and if he continued to see
Dr. Eilers, he would have to pay the bill himself.
Iowa Code section 85.27 gives employer the right to
choose the care. Defendants provided a reasonable care by
an orthopedic surgeon, a bone scan, two MRI's, a consulting
physician, and an independent medical examiner. The
treatment also included a lumbar laminectomy of L5-S1 which
was indicated by the preoperative MRI. Even though the
surgery was not entirely successful, defendants did provide
reasonable care as required by Iowa Code section 85.27.
Claimant contends he is entitled to the additional
treatments of Dr. Eilers because his problems were caused by
the work-related injury and Dr. Eilers' treatments gave him
relief from pain at least temporarily whereas the care of
Dr. Wirtz did not relieve his pain during this period of
time. This is a good reason for seeking continued care from
Dr. Eilers, but since it was not authorized, and since
defendants do have the right by law to choose the medical
care, then the claim in the amount of $300 for additional
treatment by Dr. Eilers between April 16, 1990 and July 16,
1990, is denied (Ex. 47, p. 91).
CONCLUSIONS OF LAW
Wherefore, based upon the foregoing and following
principles of law, these conclusions are made:
That claimant did sustain the burden of proof by a
preponderance of the evidence that the injury of February 1,
1990, was the cause of permanent disability. 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).
Page 9
That claimant sustained an industrial disability of 25
percent to the body as a whole and is entitled to 125 weeks
of permanent partial disability benefits. Iowa Code section
85.34(2)(u).
That claimant is not entitled to payment for the
medical bill of Dr. Eilers from April 16, 1990 to July 16,
1990, in the amount of $300 because it was not authorized.
Iowa Code section 85.87.
ORDER
THEREFORE, it is ordered:
That defendants pay to claimant one hundred twenty-five
(125) weeks of permanent partial disability benefits at the
stipulated rate of one hundred eighty-eight and 92/100
dollars ($188.92) per week for a total amount of twenty-
three thousand six hundred fifteen dollars ($23,615),
commencing on February 4, 1991, as stipulated to by the
parties.
That defendants are entitled to a credit in the amount
of thirteen thousand two hundred twenty-four and 40/100
dollars ($13,224.40) which had been paid to claimant by the
time of the hearing and any post-prehearing payments paid to
claimant, pursuant to a plan to pay claimant seventy-five
(75) weeks of permanent partial disability benefits based on
an impairment rating of fifteen percent (15%).
That all accrued benefits are to be paid in a lump sum.
That interest will accrue pursuant to Iowa Code section
85.30.
That the costs of this action are charged to defendants
pursuant to Iowa Code section 86.40 and rule 343 IAC 4.33.
That defendants file claim activity reports as
requested by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of July, 1992.
________________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Max Schott
Attorney at Law
6959 University Ave
Des Moines IA 50311
Mr Thomas M Plaza
Page 10
Attorney at Law
701 Pierce St Ste 200
P O Box 3086
Sioux City IA 51102
Page 11
2501; 5-1401; 5-1402.40; 5-1803
Filed July 10, 1992
Walter R. McManus
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
MATTHEW HUBBARD, :
:
Claimant, :
:
vs. :
: File No. 942893
LANCASTER COLONY CORPORATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
AMERICAN MOTORISTS INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1401; 5-1402.40; 5-1803
Claimant awarded 25% industrial disability based on impairment
ratings of 10% and 15% subsequent to a lumbar laminectomy,
restrictions of no excessive bending or twisting, physical
capacity examination lifting limits of 75 pounds occasionally and
30 pounds frequently, foreclosed from prior employment(s), age
26, high school education, few if any transferable skills, good
motivation to seek and find work, and a 30% actual loss of
earnings at the time of hearing. The surgery was not completely
successful and left claimant with an antalgic walk and inability
to sit or walk for more than two hours at one time.
2501
Employer paid claimant's chiropractic bills until it became known
that his injury might be serious at which time employer retained
an orthopedic surgeon and told claimant that he was no longer
authorized to see the chiropractor and if he did that he would be
liable for the bill himself. Payment of the additional
chiropractic bills was denied. Claimant contended that
chiropractic care relieved the pain whereas the orthopedic
surgeon's treatment did not. Claimant is entitled to reasonable
care. He received it. He was provided an orthopedic surgeon, x-
rays, a bone scan, two MRI's, a lumbar laminectomy, a consulting
physician, and an independent medical examiner. Employer has the
right to choose the care.
Page 1
before the iowa industrial commissioner
____________________________________________________________
_____
:
DONNA M. HEMANN, :
:
Claimant, :
:
vs. :
: File No. 942936
LIVING CENTER EAST, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
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
Claimant has failed to comply with rule 343 IAC 4.28(4)"b."
The appeal will be considered generally and without regard
to specific issues.
findings of fact
The findings of fact contained in the proposed agency
decision filed February 20, 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.
*****
Claimant, age 57, worked for LC, a nursing home, for almost
five years as a certified nurse's aide. Claimant was
terminated in June 1990 for her inability to return to work
after the injury herein. Claimant's duties required her to
lift heavy residents for bathing, feeding and dressing.
Claimant was paid $4.35 an hour in her work.
On or about February 15, 1990, claimant injured her left
knee while working at LC. The injury consisted of a torn
meniscus cartilage in the knee. The injury required
surgical treatment and a long period of recovery lasting
several months.
***** Several witnesses testified on behalf of defendants
that they heard claimant state after the alleged injury that
she did not know how or where she was injured. Claimant
admits to only stating that she did not know how she was
Page 2
injured. In any event, not knowing how or where the injury
occurred is not fatal to a claim.
Claimant testified that the severe knee pain occurred at
work on the morning of February 15, 1990. ***** Claimant
asked to leave early due to her pain and she went
immediately to her family doctor, William Finn, M.D.
Although Dr. Finn did not report a specific injury in his
office note and noted pain the night before, he has opined
that claimant's knee problems on that date were work
related.
Dr. Finn referred claimant immediately to an orthopedic
surgeon, Fred Pilcher, M.D., who also saw claimant on
February 15, 1990. Dr. Pilcher reported in his office note
that claimant had knee pain for a couple of weeks. He does
not mention an injury in his report until the following
appointment on February 23, 1990, when he reports that
claimant told him she twisted the knee at work. He then
stated as follows: "I questioned her about this again.
This is important because she has no means of support or
insurance other than workmen's compensation." He goes on to
state: "I think this lady probably has an acute meniscus
pathology for whatever reason superimposed on probably
chronic degenerative arthritis."
Clearly, claimant had serious preexisting arthritis.
Claimant admitted this at hearing stating that she was
always worse in the wintertime and the winter of 1990 was no
different. However, she maintains that her pain grew worse
after lifting residents at work. She said that by the time
she got to Dr. Finn her entire leg was swollen. ***** The
fact that she left early due to leg pain to see her doctor
is not disputed. Dr. Pilcher states in a letter to defense
counsel that the question of a work injury "comes down to
Donna Hemann's documentation of a specific injury that may
have caused this meniscus tear. I obviously have no proof
of it other than which (sic) is stated in the note." *****
conclusions of law
The conclusions of law contained in the proposed agency
decision filed February 20, 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.
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
Page 3
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.
[Claimant bears the burden of proof to show by a
preponderance of the evidence that she has suffered an
injury arising out of and in the course of her employment.
Claimant alleges a traumatic injury at work on February 19,
1990. The record shows that when claimant presented herself
to two different physicians on February 15, 1990, the
alleged date of injury, she did not relate work activity as
the cause of her pain. On the contrary, claimant told one
physician that she had been up all night the night before
with leg pain; she told the other that she had leg pain for
two weeks prior to the alleged date of injury.
Claimant was unable to relate a specific incident as
constituting an injury. Although this is not necessarily
fatal to her claim, the preponderance of the evidence
indicates it is more likely that claimant's preexisting
arthritis, which was apparently symptomatic in the days
leading up to the alleged injury, was more likely a cause of
her condition than a vague, unspecified work incident.
Claimant's comments to her physicians on the same day as the
alleged injury are in contradiction with her testimony at
the hearing. Her comments to the physicians were made
contemporaneously with the alleged injury--in fact, on the
same day; whereas her testimony was much later and in
hindsight. The failure of claimant to treat her condition
as a work injury by not filling out appropriate forms, even
after this was pointed out to her by supervisory personnel,
further corroborates the absence of a work injury.
Defendants are not responsible for compensating claimant's
preexisting arthritis condition. Claimant has failed to
carry her burden of proof to show that she has suffered a
work injury arising out of and in the course of her
employment.]
WHEREFORE, the decision of the deputy is reversed.
order
THEREFORE, it is ordered:
That claimant take nothing from these proceedings.
That claimant shall pay the costs of this matter including
the transcription of the hearing.
Signed and filed this ____ day of December, 1992.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. James E. Bobenhouse
Attorney at Law
Page 4
1120 2nd Ave. SE
Cedar Rapids, Iowa 52403
Mr. Jeff M. Margolin
Attorney at Law
2700 Grand Ave., Ste 111
Des Moines, Iowa 50312
1108
Filed December 22, 1992
Byron K. Orton
LPW
before the iowa industrial commissioner
____________________________________________________________
_____
:
DONNA M. HEMANN, :
:
Claimant, :
:
vs. :
: File No. 942936
LIVING CENTER EAST, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
_____
1108
Claimant alleged her knee condition was caused by a work
injury on a specific date, but could not identify a specific
work incident as the cause of her back pain. Prior to her
alleged injury at work, claimant made several statements
that her preexisting knee arthritis had been bothering her,
and that she had been up all night the night before with
pain from her arthritis. Claimant failed to carry her
burden of proof that she had suffered a work injury and that
her condition was causally related to a work injury. Deputy
reversed.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
DONNA M. HEMANN, :
:
Claimant, :
:
vs. :
: File No. 942936
LIVING CENTER EAST, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Donna M.
Hemann, claimant, against Living Center East, employer
(hereinafter referred to as LC), and Employers Mutual
Companies, insurance carrier, defendants, for workers' com
pensation benefits as a result of an alleged injury on
February 15, 1990. On January 30, 1992, a hearing was held
on claimant's petition and the matter was considered fully
submitted at the close of this hearing.
The parties have submitted a prehearing report of con
tested issues and stipulations which was approved and
accepted as a part of the record of this case at the time of
hearing. The oral testimony and written exhibits received
during the hearing are set forth in the hearing transcript.
According to the prehearing report, the parties have
stipulated to the following matters:
1. An employee-employer relationship existed between
claimant and LC at the time of the alleged injury.
2. If defendants are held liable for the alleged
injury, claimant is entitled to healing period benefits from
February 15, 1990 through July 7, 1990 and to 6.6 weeks of
permanent partial disability from July 8, 1990, for a three
percent loss of use of her left leg.
3. At the time of injury, claimant's gross rate of
weekly compensation was $174.00, she was single and she was
entitled to only one exemption. This establishes a weekly
rate of compensation of $111.85, according to the industrial
commissioner's published rate booklet for FY 90.
4. With reference to the medical bills submitted by
claimant at the hearing, it was stipulated that the medical
Page 2
service providers involved would testify that the charges
and treatment rendered are reasonable and necessary and
defendants are not offering contrary evidence.
ISSUES
The parties submitted the following issues for determi
nation in this proceeding:
I. Whether claimant received an injury arising out of
and in the course of employment on February 15, 1990,
including its causal connection to the stipulated disabili
ties; and,
II. The extent of claimant's entitlement to medical
benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
A credibility finding is necessary to this decision as
defendants placed claimant's credibility at issue as to the
occurrence of the injury. From her demeanor while testify
ing, claimant is found credible.
Claimant, age 57, worked for LC, a nursing home, for
almost five years as a certified nurse's aide. Claimant was
terminated in June 1990 for her inability to return to work
after the injury herein. Claimant's duties required her to
lift heavy residents for bathing, feeding and dressing.
Claimant was paid $4.35 an hour in her work.
On or about February 15, 1990, claimant injured her
left knee while working at LC. The injury consisted of a
torn meniscus cartilage in the knee. The injury required
surgical treatment and a long period of recovery lasting
several months.
Claimant's demeanor at hearing was very important to
the finding of a work injury. Several witnesses testified
on behalf of defendants that they heard claimant state after
the alleged injury that she did not know how or where she
was injured. Claimant admits to only stating that she did
not know how she was injured. In any event, not knowing how
or where the injury occurred is not fatal to a claim.
Claimant testified that the severe knee pain occurred
at work on the morning of February 15, 1990 and she is
believed. Claimant asked to leave early due to her pain and
she went immediately to her family doctor, William Finn,
M.D. Although Dr. Finn did not report a specific injury in
his office note and noted pain the night before, he has
opined that claimant's knee problems on that date were
work-related.
Dr. Finn referred claimant immediately to an orthopedic
surgeon, Fred Pilcher, M.D., who also saw claimant on
Page 3
February 15, 1990. Dr. Pilcher reported in his office note
that claimant had knee pain for a couple of weeks. He does
not mention an injury in his report until the following
appointment on February 23, 1990, when he reports that
claimant told him she twisted the knee at work. He then
stated as follows: "I questioned her about this again.
This is important because she has no means of support or
insurance other than workmen's compensation." He goes on to
state: "I think this lady probably has an acute meniscus
pathology for whatever reason superimposed on probably
chronic degenerative arthritis."
Clearly, claimant had serious pre-existing arthritis.
Claimant admitted this at hearing stating that she was
always worse in the wintertime and the winter of 1990 was no
different. However, she maintains that her pain grew worse
after lifting residents at work. She said that by the time
she got to Dr. Finn her entire leg was swollen. Claimant is
believed. The fact that she left early due to leg pain to
see her doctor is not disputed. Dr. Pilcher states in a
letter to defense counsel that the question of a work injury
"comes down to Donna Hemann's documentation of a specific
injury that may have caused this meniscus tear. I obviously
have no proof of it other than which (sic) is stated in the
note." Essentially, the doctor regards the issue as one of
claimant's credibility. As set forth above, claimant is
found credible. Although the various office notes on
February 15, 1990, can be interpreted against the claimant,
they are not verbatim transcripts of what was said. They do
not have the weight of live, credible testimony.
Furthermore, these office notes can be interpreted in a man
ner consistent with claimant's story if you view the injury
as one which was superimposed upon an already existing
chronic and painful arthritis problem, as did Dr. Pilcher.
The healing period and permanent partial disability
stipulations were based upon the uncontroverted views of Dr.
Pilcher. It is specifically found that this disability is
related to the meniscus tear which has been found to be
caused by the February 15, 1990 injury.
It is further found that the medical expenses listed in
the prehearing report constituted reasonable and necessary
treatment of the work injury of February 15, 1990. All were
related to Dr. Finn's and Dr. Pilcher's treatment.
CONCLUSIONS OF LAW
I. Claimant has the burden of proving by a preponder
ance of the evidence that claimant received an injury aris
ing 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 circum
stances 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,
Page 4
620, 106 N.W.2d 591 (1961), and cases cited therein.
In the case sub judice, the issue was only factual and
a matter of claimant's credibility. Claimant was found
credible and she established her work injury. The extent of
claimant's entitlement to disability benefits from this
injury was stipulated.
II. Pursuant to Iowa Code section 85.27, claimant is
entitled to payment of reasonable medical expenses incurred
for treatment of a work injury. Claimant is entitled to an
order of reimbursement if she has paid those expenses.
Otherwise, claimant is entitled only to an order directing
the responsible defendants to make such payments directly to
the provider. See Krohn v. State, 420 N.W.2d 463 (Iowa
1988).
In the case at bar, the requested expenses were found
related to the injury and will be awarded.
ORDER
1. Defendants shall pay to claimant six point six
(6.6) weeks of permanent partial disability benefits at a
rate of one hundred eleven and 85/l00 dollars ($111.85) per
week from July 8, 1990.
2. Defendants shall pay to claimant healing period
benefits from February 15, 1990 through July 7, 1990, at the
rate of one hundred eleven and 85/l00 dollars ($111.85) per
week.
3. Defendants shall pay the medical expenses listed in
the prehearing report. Claimant shall be reimbursed for any
of these expenses paid by him. Otherwise, defendants shall
pay the provider directly along with any lawful late payment
penalties imposed upon the account by the provider.
4. Defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against this award for all
benefits previously paid.
5. Defendants shall pay interest on weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
6. Defendants shall pay the costs of this action pur
suant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
7. Defendants shall file activity reports on the pay
ment of this award as requested by this agency pursuant to
rule 343 IAC 3.1.
Signed and filed this ____ day of February, 1992.
Page 5
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. James E. Bobenhouse
Attorney at Law
1120 2nd Ave SE
Cedar Rapids IA 52403
Mr. Jeff M. Margolin
Attorney at Law
Terrace Center STE 111
2700 Grand Ave
Des Moines IA 50312
5-1803
Filed February 20, 1992
LARRY P. WALSHIRE
before the iowa industrial commissioner
____________________________________________________________
:
DONNA M. HEMANN, :
:
Claimant, :
:
vs. :
: File No. 942936
LIVING CENTER EAST, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
Non-precedential, extent of disability case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MICHAELA ERICKSON,
Claimant, File No. 943125
vs.
A R B I T R A T I O N
K MART CORPORATION,
D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
STATEMENT OF THE CASE
Claimant filed a petition for arbitration as a result
of injuries to her right and left knees which occurred on
February 17, 1990 while employed with K Mart. The
employer failed to appear after being properly served with
the original notice and petition. The employer was held in
default on March 13, 1995 due to the failure to appear and
defend the action. To date of hearing the employer has
failed to appear and respond.
This case was heard and fully submitted at Davenport,
Iowa on May 9, 1995. The record in the proceeding consists
of claimant exhibits A through E and testimony from Michaela
Erickson.
Lawrence J. Lammers, Attorney at Law, represented
claimant. The employer was not represented at the time of
hearing.
ISSUES
The issues presented for determination are:
1. The nature and extent of permanent disability
caused by the February 17, 1990 injury;
2. Claimant's entitlement to Iowa Code section 85.27
benefits; and
3. Claimant's entitlement to Iowa Code section 86.13
penalty benefits due to nonpayment of permanent disability.
FINDINGS OF FACT
Having heard the testimony of the witness and having
considered all of the evidence in the record, the deputy
industrial commissioner finds:
Claimant, Michaela Erickson, presents as an extremely
credible witness based upon her appearance, action and
demeanor at the time of hearing and testimony which is
consistent with exhibits A through E.
Claimant began work for the employer in 1987. On
February 17, 1990, claimant sustained traumatic bilateral
injuries to her right and left lower extremities. Initially
claimant suffered from a more severe problem with the left
knee. Pain resolved under conservative care from company
selected doctors. Claimant's right knee pain became more
prominent with time eventually resulting in a right
prepatellar bursa surgery on January 19, 1991.
Claimant sustained intermittent periods of temporary
disability caused by the work injury of February 17, 1990.
Claimant was off work beginning February 18, 1990 through
February 20, 1990, March 9, 1990 through March 28, 1990 and
finally January 31, 1991 through March 10, 1991.
Claimant incurred 374 miles of driving traveling to and
from physical therapy and medical appointments. The
transportation was causally connected to the February 17,
1990 injury medical treatment.
Claimant incurred considerable medical expenses for
treatment of the February 17, 1990 work injury. Medical
expenses causally connected to the February 17, 1990 injury
which remain unpaid total $1,231.75.
Robert J. Chesser, M.D., an employer selected treating
doctor opined on May 4, 1992, that claimant sustained 4
percent permanent partial impairment to the right lower
extremity causally connected to the February 17, 1990
injury. The deputy industrial commissioner finds that the
February 17, 1990 injury caused permanent disability. The
record is devoid of evidence which would indicate a break in
the causal connection or a lack of permanent disability.
The employer failed to make payment for permanent disability
caused by the February 17, 1990 injury, notwithstanding the
May 1992 report from an authorized treating physician
indicating 4 percent impairment to the right lower
extremity.
Claimant is now permanently restricted from repetitive
kneeling and bending on the right knee due to the February
17, 1990 injury.
Employer's failure to pay permanent partial disability
benefits for the left lower extremity demonstrates an
unreasonable denial of weekly benefits. Furthermore, the
employer's failure to promptly pay medical expenses and
mileage for causally connected treatment indicates an
unreasonable denial of weekly benefits on the part of the
employer with respect to good faith resolution of this
matter.
REASONING AND CONCLUSIONS OF LAW
The first issue concerns claimant's entitlement to
permanent disability benefits under chapter 85 of the Iowa
Code.
The right of an employee to receive compensation for
injuries sustained is statutory. The statute conferring this
right can also fix the amount of compensation payable for
different specific injuries. The employee is not
entitled to compensation except as the statute provides.
Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
Compensation for permanent partial disability begins at
termination of the healing period. Section 85.34(2).
Permanent partial disabilities are classified as either
scheduled or unscheduled. A specific scheduled disability
is evaluated by the functional method; the industrial method
is used to evaluate an unscheduled disability. Simbro v.
Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves
v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin
v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
An injury to a scheduled member may, because of after
effects or compensatory change, result in permanent
impairment of the body as a whole. Such impairment may in
turn be the basis for a rating of industrial disability. It
is the anatomical situs of the permanent injury or
impairment which determines whether the schedules in section
85.34(2)(a) - (t) are applied. Lauhoff Grain v.
McIntosh, 395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-
American, Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v.
Pooley Lbr. Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
The deputy industrial commissioner holds that claimant
sustained permanent disability to the right lower extremity.
The medical records clearly indicate the situs of injury as
the right knee. Therefore, benefits cannot be granted to
the body as a whole and must be limited to the scheduled
member pursuant to Iowa Code section 85.34(2)(o). The
deputy industrial commissioner holds that claimant sustained
10 percent permanent partial disability to the right lower
extremity pursuant to Iowa Code section 85.34(2)(o). The
severe work restrictions demonstrate functional disability
greater than the rating of permanent impairment.
The second issue concerns claimant's entitlement to
Iowa Code section 85.27 medical benefits.
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Section 85.27. Holbert
v. Townsend Engineering Co., Thirty-second Biennial
Report of the Industrial Commissioner 78 (Review-reopen
1975).
The deputy industrial commissioner holds that claimant
incurred $1,231.75 in causally connected medical expenses
which remain unpaid. The employer is completely responsible
for payment of those medical expenses because liability has
been established and the expenses are causally connected to
the work injury. It is also noted that the medical expenses
were incurred with employer selected medical providers.
The deputy industrial commissioner holds that claimant
has established entitlement to transportation expenses
incurred for treatment of the February
17, 1990 injury amounting to 374 miles at the rate of 21
cents per mile for a total of $78.54.
The final issue concerns claimant's entitlement to Iowa
Code section 86.13 penalty benefits due to the failure to
promptly pay weekly permanent disability benefits.
Section 86.13 permits an award of up to 50 percent of
the amount of benefits delayed or denied if a delay in
commencement or termination of benefits occurs without
reasonable or probable cause or excuse. The standard for
evaluating the reasonableness of defendants' delay in
commencement or termination is whether the claim is fairly
debatable. Where a claim is shown to be fairly debatable,
defendants do not act unreasonably in denying payment. See
Stanley v. Wilson Foods Corp., File No. 753405 (App.
August 23, 1990); Seydel v. Univ. of Iowa Physical
Plant, File No. 818849 (App. November 1, 1989).
The deputy industrial commissioner holds that the claim
was not fairly debatable. The employer's denial of weekly
compensation for permanent disability caused by the February
17, 1990 work injury was unreasonable. The undisputed
medical evidence indicates 4 percent impairment to the right
lower extremity. The impairment rating was issued by an
employer selected physician. No evidence indicates a fairly
debatable claim with respect to 4 percent permanent partial
disability to the right lower extremity. Therefore, a 50
percent penalty is assessed entitling claimant to an
additional 2 percent permanent disability to the right lower
extremity totalling 4.4 weeks.
Claimant sustained intermittent periods of temporary
disability. Permanent disability benefits generally
commence at the termination of the healing period. In this
situation the commencement date for permanent disability is
held to be February 21, 1990 pursuant to Brincks v. Case
Power & Equipment, File No. 843233 (Appeal April 18,
1990). The permanent disability shall be paid
intermittently between the remaining healing periods.
ORDER
THE DEPUTY INDUSTRIAL COMMISSIONER ORDERS:
Defendant, K Mart, shall pay claimant twenty-two (22)
weeks of permanent disability benefits at the rate of
eighty-eight and 79/100 dollars ($88.79) per week paid
intermittently between healing periods commencing February
21, 1990.
Defendant shall pay claimant four point four (4.4)
weeks of Iowa Code section 86.13 penalty benefits at the
rate of eighty-eight and 79/100 dollars ($88.79) per week.
Interest on penalty benefits commences on the date of this
arbitration decision.
Defendant shall pay claimant one thousand two hundred
thirty-one and 75/100 dollars ($1,231.75) in Iowa Code
section 85.27 expenses.
Defendant shall pay claimant seventy-eight and 54/100
dollars ($78.54) in Iowa Code section 85.27 transportation
expenses.
It is further ordered that defendant shall receive
credit for benefits previously paid if applicable.
It is further ordered that all accrued benefits are to
be paid in a lump sum.
It is further ordered that interest shall accrue
pursuant to Iowa Code section 85.30 from the commencement
date for payment of permanent disability benefits unless
otherwise specified in the order.
It is further ordered that costs of this action are
assessed against defendant, K Mart, pursuant to rule 343 IAC
4.33 in the amount of one hundred eighty-five and 58/100
dollars ($185.58), and such other costs as certified by
claimant.
It is further ordered that defendant shall file a claim
activity report pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of May, 1995.
______________________________
MARLON D. MORMANN
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Lawrence J. Lammers
Attorney at Law
701 Kahl Bldg.
Davenport, IA 52801
K Mart Self Ins. Program
Attn: Ione Singleton
3100 W. Big Beaver
Troy, MI 48084
REGULAR AND CERTIFIED MAIL
5-1803, 5-2500, 5-4000.2
Filed May 16, 1995
Marlon D. Mormann
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MICHAELA ERICKSON,
Claimant, File No. 943125
vs.
A R B I T R A T I O N
K MART CORPORATION,
D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
5-1803, 5-2500, 5-4000.2
Employer was previously held in default for a failure
to appear and defend the case. Employer failed to
participate at the time of hearing. The evidence was
undisputed that claimant sustained 4 percent permanent
impairment to the right lower extremity. Claimant was
granted 10 percent permanent disability to the scheduled
right lower extremity pursuant to Iowa Code section
85.34(2)(o) due to severe work restrictions. A 50 percent
penalty was added granting claimant an additional 2 percent
disability to the right lower extremity. Unpaid Iowa Code
section 85.27 medical and transportation expenses were
ordered paid.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DARREL STEPHAN,
Claimant,
vs.
File Nos. 943141
STATE OF IOWA, 1013370
Self-Insured, A P P E A L
Employer,
D E C I S I O N
and
SECOND INJURY FUND OF IOWA,
Defendants.
___________________________________________________________
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
January 4, 1994 is affirmed and is adopted as the final agency
action in this case, with the following additional analysis:
Second Injury Fund shall pay the costs of the appeal, including
the preparation of the hearing transcript.
Signed and filed this ____ day of May, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr Stephen D. Lombardi
Attorney at Law
10101 University Ave STE 202
Clive, Iowa 50325
Ms. Iris Post
Attorney at Law
2222 Grand Ave
P O Box 10434
Des Moines, Iowa 50306
Ms. Shirley Steffe
Assistant Attorney General
Hoover State Office Building
Des Moines, Iowa 50319
1702 1806 3202 2206
2207 2209 2901
Filed May 13, 1994
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DARREL STEPHAN,
Claimant,
vs.
File Nos. 943141
STATE OF IOWA, 1013370
Self-Insured, A P P E A L
Employer,
D E C I S I O N
and
SECOND INJURY FUND OF IOWA,
Defendants.
___________________________________________________________
1702 1806 3202
Claimant who had degenerative changes in his knees prior to
the injury which is the subject of this case was held
qualified for Second Injury Fund benefits even though no
physician provided a rating of impairment or opinion as to
the extent of impairment that preexisted. It was evident
from surgical findings that some permanent disability had
preexisted. Based upon the extent of arthritic changes
which were shown from evidence in the record a 10 percent
permanent impairment of each leg was found to preexist the
injury in this case. The Second Injury Fund entitlement was
determined accordingly.
2206 2207 2209 2901
Claimant brought three claims but there was one injury. His
claim of injury based upon a pulmonary embolism which
developed as a result of the surgery was held to be sequela
of the original injury and not a separate injury. An
unsuccessful attempt to resume employment aggravated the
claimant's condition. That was held to be sequela of the
original injury although it could have properly been
characterized as a separate aggravation type of injury. The
original injury was held to be the principle cause and
therefore the entire case was decided under that original
date of injury.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DARREL STEPHAN, : File Nos. 943141
: 1013369
Claimant, : 1013370
:
vs. :
:
STATE OF IOWA, :
: A R B I T R A T I O N
Self-Insured, :
Employer, : D E C I S I O N
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in which Darrel Stephan seeks
additional weekly compensation based upon a stipulated
injury of November 8, 1989 and alleged injuries of September
13, 1990 and February 13, 1991. The case was heard and
fully submitted at Des Moines, Iowa, on October 25, 1993.
The evidence consists of testimony from Darrel Stephan,
joint exhibits A, B, C, D, E; claimant's exhibits 2, 3, 4,
7, 9, 11, 12, 13, 14; and defendants' exhibits F and G. The
exhibits received into evidence in this case contain several
hundred pages. The exhibits are replete with duplication
and materials which are irrelevant and immaterial to the
disputed issues in this case. Counsel are advised that in
future cases their assurances of relevancy, materiality and
lack of duplication will not necessarily be relied upon when
receiving exhibits. A page by page showing of admissibility
may be required.
FINDINGS OF FACT
Having considered all the evidence received, together
with the appearance and demeanor of the witness, the
following findings of fact are made:
Darrel Stephan injured his left knee on October 8,
1989, when a step on a truck broke. This incident was not
Darrel's first experience with knee problems. His right
knee had been injured at work previously when he stepped
into a hole. On July 17, 1989, John A. Grant, an orthopedic
surgeon, had performed arthroscopic surgery on the right
knee and found that it was afflicted with early mild
degenerative changes in the posterior portion of the medial
compartment. (exhibit E, page 4, ex. 2-2). Following the
November 8, 1989 injury, Darrel received care from Dr. Grant
for the left knee. On March 26, 1990, arthroscopic surgery
Page 2
was performed on Darrel's left knee and it also disclosed
early degenerative osteoarthritis. (ex. E, p. 140).
Darrel's care was changed to Peter D. Wirtz, M.D., who
performed a tibial osteotomy on claimant's left leg on
September 4, 1990. (ex. E, p. 105). Shortly following the
surgery, claimant developed pulmonary emboli and
thrombophlebitis in his lower left leg, all as a result of
that surgery. (ex. D, pp. 108-112, 131-135; ex. E, p. 19).
There is no indication in the record of this case that
either the pulmonary emboli or the thrombophlebitis has
produced any permanent impairment, disability or
restrictions upon Darrel's activities.
After a course of care and recuperation, Dr. Wirtz
released Darrel to resume employment effective January 7,
1991. (ex. E, p. 110). Darrel initially performed
restricted duty and then attempted to resume regular duty.
He was unable to do so and aggravated his knee. He was
taken off work by Michael Makowski, M.D., commencing on
February 18, 1991. (ex. E, pp. 86-87). On April 11, 1991,
Dr. Makowski indicated that claimant had recovered as much
as could be expected and recommended that he enter into
vocational rehabilitation. (ex. E, pp. 92-95). It is
undisputed that Darrel cannot resume working as an equipment
operator for the Department of Transportation. (ex. D, pp.
14-15). It has been recommended that he restrict his
activity to avoid extended walking, standing and carrying
types of activities. (ex. A, pp. 45-58; ex. D, pp. 37, 55;
ex. E, pp. 115-116, 118-121; exs. 2-1, 2-3). It should be
noted that the assessment of this case made by Marvin H.
Dubansky, M.D., is found to be accurate and correct.
Darrel's last request for a leave of absence did not suit
the employer and his employment was terminated. It is noted
that there is some apparent dispute regarding the method in
which Darrel requested his last leave of absence. It is
noted that the form of the last request was similar to the
form of the previous request which had been granted (ex. D,
pp. 165, 172; ex. 12). As indicated by the resident
maintenance engineer, Michael J. Kennerly, granting of
leaves is at the sole discretion of the appointing
authority. (ex. 13).
It is found that there is but one injury in this case,
that being the injury of November 8, 1989. The other events
which are alleged as injuries in files 1013369 and 1013370
are merely sequela to that original injury. While it is
true that the alleged injury of February 13, 1991, is to
some extent an aggravation of a preexisting condition, the
preexisting condition is the November 8, 1989 injury. The
fact that the claimant continued to work for several months
also adds a cumulative injury component to this case. The
stronger weight of the evidence however, is that this is a
traumatic injury of November 8, 1989, rather than a later
cumulative injury. This case involves no issues of the
statute of limitations and the selection of the date is
academic since it does not affect the outcome of the case.
Page 3
Since the duration and extent of trauma associated with the
events of February 13, 1991, seem relatively insignificant,
it is found that the principle cause of the disability is
the November 8, 1989 injury.
Darrel had a varied work history before commencing his
employment with the Department of Transportation. He is a
high school graduate and served in the air force as a fire
fighter. He has farmed and driven trucks. Part of his
truck driving was self-employment.
Clark H. Williams, a qualified vocational
rehabilitation consultant, indicated that Darrel is
selectively employable. Claimant's own assessment of his
situation as found in his answer to interrogatory number 14
is correct. (ex. A, p. 16). He stated, "At this point I am
completely disabled. I need to go back to school because
what I know how to do won't get me a job."
The Department of Transportation chose to terminate
Darrel's employment rather than retain him in unpaid leave
status. While they have a policy dealing with leaves of
absence for injured employees, it must be recognized that
the adoption and implementation of that policy is entirely
voluntary. There is no statute which requires the State of
Iowa or its Department of Transportation to have a
regulation or policy which compels individuals who are off
work due to work-related injuries to apply for leaves of
absence during the period of their disability in order to
avoid termination of employment. There is no law or
statutory prohibition which would prevent the Department of
Transportation from moving Darrel into an office job if they
were so inclined. When it is considered that the Department
of Transportation has many employees who perform many
different functions, it is strong evidence of a very high
degree of disability that the department could not find a
single job within its entire work force which Darrel was
qualified and physically capable of performing. It is very
convincing that Darrel will have extreme difficulty
obtaining employment of any type with any other employer.
While there is a recall procedure available there is
nothing, other than the employer's conscious decision, which
prevented the employer from helping Darrel find an
appropriate placement within state government. Claimant was
recalled to an equipment operator position by letter dated
July 13, 1993. He did not respond since the physicians have
all indicated that he is not capable of performing that
work. It should be noted that his performance evaluations
were generally favorable. (ex. D, pp. 173-246)
In view of the condition of Darrel's knees, it is
apparent that he will have extreme difficulty in obtaining
other employment unless he obtains retraining. Darrel has
acted quite reasonably in seeking retraining. At this point
in time it is too early to predict what the outcome of that
retraining will be if he is able to complete it
successfully. The evidence in this case shows no targeted
job and no projection as to the likelihood of finding a
Page 4
position or pay scale is a position is found after the
retraining is completed.
Darrel Stephan, at age 48, has been forced by his
injury to retrain in order to be able to re-enter the work
force and be gainfully employed. His entire work history
has involved the types of activities which his legs do not
now permit him to perform. It is determined that Darrel
Stephan has experienced a 60 percent reduction in his
earning capacity as a result of the condition of his knees.
The record of this case contains several ratings of
permanent impairment. Dr. Wirtz on May 8, 1991, assigned a
15 percent impairment rating to claimant's left lower
extremity. Seven days later, on May 15, 1991, he changed
that rating to 10 percent. (ex. B, p. 55; ex. E, pp.
113-114) Dr. Grant has rated the right leg as having a 20
percent permanent impairment. (ex. E, p. 64; ex. 2-2)
Claimant's physical impairment has also been evaluated by
Steven Karber, M.D. Dr. Karber found claimant to have a 36
percent impairment of his left leg and a 10 percent
impairment of the right leg. (ex. E, p. 44)
This case contains a wide diversity in impairment
ratings. It should be noted that Dr. Dubansky stated that
claimant's right knee joint was bone-to-bone and that the
left had only one millimeter of joint space. (ex. E, p.
120). Under the AMA Guides the absence of any joint space
provides a 20 percent impairment. One millimeter of joint
space provides a 15 percent impairment. (4th ed. p. 83
table 62). It should also be noted that under the Guides,
4th ed., the simple performance of a tibial osteotomy
warrants a 25 percent impairment of the lower extremity if
the result is good. (table. 64, p. 85) The result in this
case would be considered to be fair at best. (It should be
noted that the 4th ed. of the AMA Guides appears to be much
more generous in impairment ratings than the earlier
editions.) It appears that Dr. Wirtz did not follow the
third edition revised of the Guides, however, since 100
degrees of retained motion warrants an 18 percent impairment
rating. Ninety degrees of retained motion of the knee
warrants a 21 percent impairment rating (Guides, 3rd ed.
revised, table 39, p. 68). The third edition also provides
for 20 percent impairment based upon arthritis according to
the extent of the deformity. (table 40, p. 68).
It is also noted that claimant was diagnosed with
arthritis prior to the occurrence of the November 8, 1989
injury. No rating appears from Dr. Grant earlier in 1989
though when he rated the right knee in 1992 he assigned a 20
percent impairment. This is consistent with the findings
made by Dr. Dubansky. Arthritis is progressive. It is
found that at the time of the injury on November 8, 1989,
Darrel Stephan had a 10 percent preexisting impairment of
his right leg as a result of degenerative arthritis. It is
also found that he had a comparable 10 percent impairment of
his left leg at the time it was injured on November 8, 1989.
This finding is made without direct express medical evidence
Page 5
but is based upon the well documented findings from the
arthroscopic surgeries performed by Dr. Grant. It is
further found that at the current time Darrel Stephan has a
25 percent impairment of his left leg. It is determined
that 10 percent preexisted and 15 percent of the left leg
impairment resulted from the injury of November 8, 1899.
The determination of a 25 percent impairment of the right
leg is made applying the findings of Doctors Karber and
Wirtz to the AMA Guides. Dr. Wirtz clearly did not follow
the third edition, revised, the edition that was in effect
at the time the evaluation was conducted. The combined
value of the arthritis and loss of range of motion provides
a 26 percent impairment. The loss of range of motion by
itself provides an 18 percent impairment. (Guides, 3d ed,
table 39, p. 68). The rating made by Dr. Wirtz is
irreconcilable with the Guides unless he also apportioned
out the preexisting 10 percent arthritic component. If he
did so, without expressly stating that he had done so, then
his rating is consistent with the Guides.
CONCLUSIONS OF LAW
It is therefore concluded that in file numbers 1013369
and 1013370 that Darrel Stephan should not receive a
separate recovery as those alleged injuries are actually
sequela of the original injury which is now also under
consideration. The original injury of November 8, 1989, is
the principle and primary cause of the events which are
alleged as separate, subsequent injuries. Since the parties
are the same, the better practice is to treat this case as
one injury, the one of November 8, 1989, although it would
not necessarily be incorrect to treat the alleged injury of
February 15, 1991, as a separate cumulative trauma injury
which produced a period of temporary disability. In view of
the facts and circumstances of this case, the better course
is to treat it all as but one injury.
Section 85.34(1) provides that healing period benefits
are payable to an injured worker who has suffered permanent
partial disability until (1) the worker has returned to
work; (2) the worker is medically capable of returning to
substantially similar employment; or (3) the worker has
achieved maximum medical recovery. The healing period can
be considered the period during which there is a reasonable
expectation of improvement of the disabling condition. See
Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa
Ct. App. 1981). Healing period benefits can be interrupted
or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa
1986).
Claimant seeks additional healing period compensation
and it is determination that he is entitled to receive it in
accordance with the care provided to him by Dr. Makowsky.
The additional healing period starts on February 18, 1991,
when Dr. Makowsky certified that he should be off work, and
runs through April 11, 1991, when Dr. Makowsky ceased making
efforts to further the recuperative process. The additional
entitlement amounts to 7 4/7 weeks. The additional healing
Page 6
period compensation is payable commencing February 18, 1991,
at the stipulated rate of $254.70.
The right of an employee to receive compensation for
injuries sustained is statutory. The statute conferring this
right can also fix the amount of compensation payable for
different specific injuries. The employee is not entitled
to compensation except as the statute provides. Soukup v.
Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
The injury of November 8, 1989, was an aggravation of
the claimant's preexisting arthritic condition in his left
knee. While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, its mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76
N.W.2d 756 (1956). If the claimant had a preexisting
condition or disability that is materially 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 (1962);
Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112
N.W.2d 299 (1961).
Compensation for permanent partial disability begins at
termination of the healing period. Section 85.34(2).
Permanent partial disabilities are classified as either
scheduled or unscheduled. A specific scheduled disability
is evaluated by the functional method; the industrial method
is used to evaluate an unscheduled disability. Simbro v.
Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v.
Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v.
Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
When considering all the evidence in the record, it has
been determined that Darrel Stephan has 25 percent
impairment of his left leg, of which 10 percent preexisted
this injury and 15 percent was proximately caused by this
injury. It should be noted that no physician has expressed
an opinion which indicates that the claimant did not have
any preexisting disability in his knees prior to November 8,
1989. It is therefore appropriate to make a determination
based upon agency expertise. Crawford v. Tama Meat Packing
Corp., file number 803960 (App. Dec. August 16, 1989); Shank
v. Mercy Hospital Medical Center, file number 719627 (App.
Dec. September 27, 1991). The record does not show that the
preexisting disability is Darrel's left leg was proximately
caused by his employment with the Department of
Transportation. Accordingly, apportionment is proper.
Tussing v. Geo. Hormel and Co., 461 N.W.2d 450 (Iowa
1990).
Section 85.64 governs Second Injury Fund liability.
Before liability of the Fund is triggered, three
requirements must be met. First, the employee must have
lost or lost the use of a hand, arm, foot, leg or eye.
Second, the employee must sustain a loss or loss of use of
another specified member or organ through a compensable
injury. Third, permanent disability must exist as to both
Page 7
the initial injury and the second injury.
The Second Injury Fund Act exists to encourage the
hiring of handicapped persons by making a current employer
responsible only for the amount of disability related to an
injury occurring while that employer employed the
handicapped individual as if the individual had had no
preexisting disability. See Anderson v. Second Injury Fund,
262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers'
Compensation-Law and Practice, section 17-1.
The Fund is responsible for the industrial disability
present after the second injury that exceeds the disability
attributable to the first and second injuries. Section
85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467
(Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335
(Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274
N.W.2d 300 (Iowa 1970).
It has been found that Darrel Stephan had a 10 percent
permanent partial disability of his right leg prior to the
time of the November 8, 1989 injury. Accordingly, that
disability creates the basis for Second Injury Fund
liability. The fact that his left leg had some previous
impairment and disability does not constitute a defense
since the amount of disability of the left leg has increased
appreciably as a result of the November 8, 1989 injury. In
order to compute the liability of the Second Injury Fund it
is necessary to perform as assessment of industrial
disability.
Industrial disability or loss of earning capacity is a
concept that is quite similar to impairment of earning
capacity, an element of damage in a tort case. Impairment
of physical capacity creates an inference of lessened
earning capacity. The basic element to be determined,
however, is the reduction in value of the general earning
capacity of the person, rather than the loss of wages or
earnings in a specific occupation. Post-injury earnings
create a presumption of earning capacity. The earnings are
not synonymous with earning capacity and the presumption may
be rebutted by evidence showing the earnings to be an
unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531
(Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa
1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973);
Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516
(Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County,
Thirty-fourth Biennial Report of the Industrial Commissioner
218 (1979); 2 Larson Workmen's Compensation Law, sections
57.21 and 57.31.
Since 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
Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (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
Page 8
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, motivation, loss of earnings, severity and situs
of the injury, work restrictions, inability to engage in
employment for which the employee is fitted and the
employer's offer of work or failure to so offer. Olson v.
Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963);
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980);
Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660
(1961).
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.
Darrel's capacity for retraining is a factor to be
considered. It is probable that he will be able to be
successfully retrained if he makes a conscientious effort.
As previously indicated, however, there is not sufficient
information in the record to make any statement within a
reasonable degree of probability as to what the impact of
the retraining will actually produce. It is therefore
determined that Darrel has a 60 percent permanent partial
industrial disability. If he were not retrainable he would
likely be totally disabled.
A 60 percent permanent partial disability creates an
entitlement to 300 weeks of compensation. Under the Second
Injury Fund formula the employer's liability is to be
deducted, namely 33 weeks. An additional 22 weeks is to be
deducted based upon the preexisting disability in the right
leg. The industrial commissioner has ruled that it is
appropriate to deduct for only one prior scheduled member
loss even if there are more than one. Patton v. Roberts
Dairy Company, file numbers 890255 943984 (App. Dec. May 27,
1993). Accordingly, no reduction of the Fund's liability
can be made for the preexisting disability in claimant's
left leg. The liability of the Second Injury Fund is
therefore 245 weeks.
The claimant's entitlement to recover permanent partial
disability from the employer commences January 7, 1991. It
runs through February 17, 1991, a span of 4 4/7 weeks. The
payment of permanent partial disability compensation is then
interrupted by an additional 7 4/7 weeks of healing period
compensation running from February 18, 1991 through April
11, 1991. The remaining 28 3/7 weeks of permanent partial
disability compensation payable by the employer is then
payable commencing April 12, 1991. The 245 weeks of
permanent partial disability payable by the Second Injury
Fund are therefore payable commencing October 28, 1991.
Although is it not clearly specified in the record it
appears as though the State of Iowa has in fact paid Darrel
Stephan 33 weeks of compensation for permanent partial
Page 9
disability and its only remaining obligation to him is the
additional 7 4/7 weeks of healing period awarded by this
decision.
ORDER
IT IS THEREFORE ORDERED that the State of Iowa and
Department of Transportation pay to Darrel Stephan seven and
four-sevenths (7 4/7) weeks of compensation for healing
period at the stipulated rate of two hundred fifty-four and
70/100 dollars ($254.70) per week payable commencing
February 18, 1991. The entire amount thereof is past due
and shall be paid forthwith in a lump sum together with
interest pursuant to section 85.30.
It is further ordered that the Second Injury Fund of
Iowa pay Darrel Stephan two hundred forty-five (245) weeks
of compensation for permanent partial disability at the rate
of two hundred fifty-four and 70/100 dollars ($254.70),
payable commencing October 28, 1991. The accrued amount
thereof shall be paid in a lump sum forthwith. Interest
shall accrue from the date of this decision.
It is further ordered that the recoveries heretofore
ordered are payable under file number 943141 on account of
the November 8, 1989 injury. Claimant is not entitled to
any additional recover in file numbers 1013369 or 1013370
based upon the occurrences of September 13, 1990 and
February 13, 1991, as those occurrences are all sequela of
the original injury of November 8, 1989.
It is further ordered that the costs of all three
action are assessed against defendants jointly and
severally.
It is further ordered that defendants file claim
activity reports as requested by this agency pursuant to
rule 343 IAC 3.1.
Signed and filed this ____ day of January, 1993.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Stephen Lombardi
Attorney at Law
10101 University Ave STE 202
Des Moines, Iowa 50325
Ms. Iris Post
Attorney at Law
2222 Grand Ave
PO Box 10434
Des Moines, Iowa 50306
Page 10
Ms. Shirley Steffe
Assistant Attorney General
Hoover State Office Bldg
Des Moines, Iowa 50319
1702 1806 3202 2206 2207 2209 2901
Filed January 4, 1993
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DARREL STEPHAN, File Nos. 943141
1013369
Claimant, 1013370
vs.
STATE OF IOWA,
A R B I T R A T I O N
Self-Insured,
Employer, D E C I S I O N
and
SECOND INJURY FUND OF IOWA,
Defendants.
___________________________________________________________
1702 1806 3202
Claimant who had degenerative changes in his knees prior to
the injury which is the subject of this case was held
qualified for Second Injury Fund benefits even though no
physician provided a rating of impairment or opinion as to
the extent of impairment that preexisted. It was evident
from surgical findings that some permanent disability had
preexisted. Based upon the extent of arthritic changes
which were shown from evidence in the record a 10 percent
permanent impairment of each leg was found to preexist the
injury in this case. The Second Injury Fund entitlement was
determination accordingly.
2206 2207 2209 2901
Claimant brought three claims but there was one injury. His
claim of injury based upon a pulmonary embolism which
developed as a result of the surgery was held to be sequela
of the original injury and not a separate injury. An
unsuccessful attempt to resume employment aggravated the
claimant's condition. That was held to be sequela of the
original injury although it could have properly been
characterized as a separate aggravation type of injury. The
original injury was held to be the principle cause and
therefore the entire case was decided under that original
date of injury.