BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
BARRY KING,
Claimant,
vs.
File No. 943625
JOHN MORRELL & COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
NATIONAL UNION FIRE
INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition
of claimant Barry King against his employer, John Morrell &
Company, and its insurance carrier, National Union Fire
Insurance Company. Mr. King asserts that he sustained
injury arising out of and in the course of employment when
he was struck by a falling hog carcass on May 12, 1989.
A hearing was scheduled in Cedar Rapids on May 19,
1993. Claimant, proceeding Pro Se, failed to appear.
Defendants elected to present no evidence. Fifteen minutes
after the scheduled time for hearing, defendants and the
court reporter were released.
ISSUES
Because claimant failed to cooperate with defendants as
ordered by the hearing assignment order filed March 11,
1993, no hearing report was present. Accordingly, issues
presented include:
1. Whether claimant sustained injury arising out of
and in the course of employment;
2. Whether the injury caused temporary or permanent
disability;
3. The extent of temporary and permanent disability;
and
4. Entitlement to medical benefits.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
No evidence was received.
Page 2
CONCLUSIONS OF LAW
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. of App. P. 14(f).
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
Claimant also has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
Since the record contains no evidence whatsoever, it is
held that claimant has failed to meet his burden of proof in
establishing either that he sustained injury arising out of
and in the course of employment, or that the injury caused
disability or need for medical treatment.
ORDER
THEREFORE IT IS ORDERED:
Claimant takes nothing.
Costs are assessed to claimant.
Page 3
Signed and filed this ____ day of June, 1993.
______________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Barry King
1901 Allen Street
Sioux city, IA 51103
Mr. Thomas M. Plaza
Attorney at Law
P.O. Box 3086
Sioux City, IA 51102
5-1402.20
Filed June 1, 1993
David R. Rasey
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
BARRY KING,
Claimant,
vs.
File No. 943625
JOHN MORRELL & COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
NATIONAL UNION FIRE
INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1402.20
Pro Se claimant, who failed to appear for hearing, failed to
prove that he sustained a compensable injury.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LODEMA KIRKPATRICK,
Claimant,
vs.
File No. 943687
SEARS, ROEBUCK & COMPANY,
A P P E A L
Employer,
D E C I S I O N
and
ALLSTATE INSURANCE,
Insurance Carrier,
Defendants.
____________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal. The decision of the deputy
filed September 7, 1993 is affirmed and is adopted as the
final agency action in this case with the following
additional analysis:
When all relevant factors are considered, claimant has
suffered a 25 percent industrial disability as a result of
her work injury on February 7, 1990. Those relevant factors
include, claimant's age; her work experience; her education;
her 18 percent functional impairment; lack of restrictions
placed on her activities by medical providers; the diagnosis
of adjustment disorder and/or depression; the diagnosis of
chronic pain syndrome attributable to her work injury; her
questionable motivation to return to suitable employment;
her ability to work as a sales position; the defendant
employer's willingness to return claimant to work until the
store closed; claimant's return to work until the store
closed on March 30, 1991; the store closing; and claimant's
mental status attributable to her February 7, 1990 work
injury.
It is clear that claimant is not permanently totally
disabled as a result of her February 7, 1990 work injury.
She had returned to work for defendant employer following
her healing period. The employment ended when the store
closed.
Pursuant to Iowa Code section 86.40 and rule 343 IAC 4.33,
costs are assessed at the discretion of the agency. Each
party should bear its own costs for exhibits when those
exhibits are not well organized and in some cases irrelevant
Page 2
and unnecessarily voluminous.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript. Each party shall pay
their own costs for all other costs.
Signed and filed this ____ day of March, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. J. Terrence Denefe
Attorney at Law
P.O. Box 493
Ottumwa, Iowa 52501-0493
Mr. E. J. Kelly
Ms. Anne L. Clark
Ms. Jane V. Lorentzen
Attorneys at Law
2700 Grand Ave., Ste 111
Des Moines, Iowa 50312
5-1803; 5-2907
Filed March 31, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LODEMA KIRKPATRICK,
Claimant,
vs.
File No. 943687
SEARS, ROEBUCK & COMPANY,
A P P E A L
Employer,
D E C I S I O N
and
ALLSTATE INSURANCE,
Insurance Carrier,
Defendants.
____________________________________________________________
5-1803
When all relevant factors are considered, claimant has
suffered a 25 percent industrial disability as a result of
her work injury on February 7, 1990. Those relevant factors
include, claimant's age; her work experience; her education;
her 18 percent functional impairment; lack of restrictions
placed on her activities by medical providers; the diagnosis
of adjustment disorder and/or depression; the diagnosis of
chronic pain syndrome attributable to her work injury; her
questionable motivation to return to suitable employment;
her ability to work as a sales position; the defendant
employer's willingness to return claimant to work until the
store closed; claimant's return to work until the store
closed on March 30, 1991; the store closing; and claimant's
mental status attributable to her February 7, 1990 work
injury.
5-2907
Costs are assessed at the discretion of the agency. Each
party ordered to pay its own costs when the exhibits were
not well organized and in some cases irrelevant and
unnecessarily voluminous.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LODEMA KIRKPATRICK, :
:
Claimant, :
:
vs. :
: File No. 943687
SEARS, ROEBUCK & COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
ALLSTATE INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by
claimant, Lodema Kirkpatrick, against her former employer,
Sears, Roebuck & Company, and its insurance company,
Allstate Insurance Company. Claimant alleges that she
sustained a work-related injury on February 7, 1990 and
seeks workers' compensation benefits.
The record in this case consists of testimony from the
claimant, Kenneth Kirkpatrick (claimant's husband), Kenetta
Bottorff (claimant's daughter), Tom Schaffer and David
Palmer; joint exhibits 1-30 and 33-34; claimant's exhibits
35-39; and, defendants' exhibit A. The case came on for
hearing before the undersigned deputy industrial
commissioner on July 29, 1993, at Oskaloosa, Iowa.
FINDINGS OF FACT
The undersigned deputy industrial commissioner, having
reviewed all of the evidence received, finds the following
facts:
Claimant, Lodema Kirkpatrick, was born on February 25,
1934. At the time of the hearing she was 59 years of age.
She is married to Kenneth Kirkpatrick, and they have four
adult children. She has lived in the Ottumwa area since
1970.
Claimant is a high school graduate, and received
average grades. She has not pursued any further formal
education, although she has attended numerous seminars and
meetings sponsored by Sears to learn about products and
selling techniques.
Claimant began working for a produce company in May of
1952 in Macon, Missouri. Several months later, she began
working at a poultry processing factory, but quit when she
Page 2
married in December of 1952. In 1955, she worked as a
receptionist for Sears Allstate Insurance in Kirksville,
Missouri. She did not perform any typing duties, and left
in 1956 when she became pregnant.
In 1961, claimant returned to work for Sears, Roebuck &
Company in the Ottumwa store. For the first five years, she
worked part-time in the toy department. In 1965, when the
retail store closed and the catalog store opened, claimant
accepted a position as a freight clerk, where her duties
included unloading and stocking incoming freight, sweeping
floors and constructing product displays.
In approximately 1966, claimant became a commission
sales person. As such, in addition to selling items, she
was required to lift and move appliances such as
refrigerators, air compressors, washers and dryers. She was
aided by a hand cart on occasion. She stated that she
earned approximately $28,000 per year. Her income (as well
as her husband's income, information which is completely
irrelevant to this case) is substantiated by joint exhibits
24 and 25.
On February 7, 1990, claimant sold a dryer to a
customer. She went to the storage area, and was unable to
secure help in retrieving the merchandise which was stacked
in boxes. The particular dryer claimant needed to deliver
to the customer was located on the top of a washer. She did
not want the customer to wait until additional help arrived,
so she tried to tip the boxed dryer forward, attempting to
slide it from her back, down her legs, to the floor.
Apparently, she had succeeded in performing this maneuver in
the past, but on this occasion, the box underneath the dryer
was wet and folded, or "gave way," and the boxed dryer fell
on claimant, hitting her in the right side of the neck and
shoulder area. While the merchandise knocked claimant to
the floor, she "saved the dryer" which came out the winner
in the incident. Claimant estimated that the dryer weighed
between 126 and 130 pounds.
Claimant got up off of the floor, and felt that she had
pulled a muscle in her neck. There were no witnesses to the
actual event, but a coworker came to the warehouse area just
as claimant was getting on her feet and straightening her
glasses, which had been knocked off when she fell. She
continued to work the remainder of the day, and reported the
incident to Kathleen Clark, the audit clerk the following
day, February 8, 1990. (Ms. Clark was not working on
February 7, and the manager of the store, Tom Shafer, was on
vacation.) Ms. Clark corroborates claimant's testimony via
a deposition (Jt. Ex. 35). Claimant filled out an incident
report, which also corroborates her testimony (Jt. Ex. 23,
p. 22).
Claimant proceeded to see a chiropractor for relief of
her pain. While the parties submitted records from Alex
Macy, D.C., claimant was actually treated by Michael Jacobs,
D.C. While most of the records detail treatment given to
claimant in 1987 and wholly irrelevant to the case at bar, a
notation for the February 15, 1990 visit indicates that
Page 3
claimant felt pain when she attempted to put on her seat
belt (Jt. Ex. 2, p. 3). Claimant stated that from the time
of the accident until she saw the chiropractor she had
continuous pain, but admitted that an increase in her
symptoms occurred when she attempted to put on her seat
belt. Dr. Macy was deposed for the case, and provided
testimony about his records (Claimant's Exhibit 36).
Claimant was unhappy with the treatment she received
from Dr. Jacobs, and tried to return to work. On February
17, 1990, she sought treatment from the emergency room at
the Ottumwa Regional Health Center, and was treated by
Michael Pogel, M.D., a neurologist. Results of x-rays and
an MRI showed that claimant had sustained a herniated disc
at the C5-6 level with resulting radiculopathy. Records
from the emergency room indicate that claimant stated she
did not remember injuring her neck or shoulder (Jt. Ex. 5).
Claimant testified that she told the emergency room
personnel that she was injured while working at Sears.
Claimant was referred to Chad Abernathey, M.D., a
neurosurgeon in Cedar Rapids, Iowa. The noted history
includes claimant's description of the accident at Sears.
An examination revealed that claimant complained of pain in
the neck and right upper extremity. She complained of
extensive numbness, tingling and parathesia from the right
upper extremity to several fingers on the right hand. Dr.
Abernathey agreed that claimant was suffering from C6
radiculopathy. He recommended surgery, which was performed
on March 8, 1990 (Jt. Ex. 9, pp. 1-5; Jt. Ex. 14).
In the following year, claimant received follow-up
treatment from both Dr. Pogel and Dr. Abernathey. Although
for several weeks after the surgery claimant reported a
complete relief of her pre-operative symptoms, on March 30,
1990, she presented to Dr. Abernathey with renewed
complaints of pain in the lower portion of her neck,
extending into the upper arm and hand. A neurological
examination revealed weakness in the triceps and wrist, and
fingers. Dr. Abernathey believed that claimant demonstrated
evidence of a C7 radiculopathy on the right side. He
recommended a CT myelograpy, which she underwent on April 2,
1990. Claimant underwent a second cervical surgery on April
3, 1990. The surgery consisted of a hemilaminectomy on the
right C6, C-7, and a C6-7 discectomy (Jt. Ex. 8, pp. 1-11;
Jt. Ex. 9, pp. 6-11; Jt. Ex. 13). Claimant also underwent
an orthopedic consultation regarding her right arm,
performed by Donald Berg, M.D. He concluded that claimant
was experiencing nerve root swelling and muscle spasms in
her back and thoracic area. He recommended hot packs,
massages and physical therapy, which was provided at South
East Iowa Physical Therapy Services in Ottumwa. Only the
initial evaluation is provided (Jt. Ex. 10; Jt. Ex. 11, p.
1). Also included in this Dr. Berg's notes are records from
1986 (Jt. Ex. 10).
Claimant was off of work until June 10, 1990. She
stated that she missed her job, and encouraged Dr.
Page 4
Abernathey to allow her to return to work. While reluctant
to do so, he released claimant to return to work on a
limited basis, two hours per day, which increased to five
hours per day in November of 1990. Claimant underwent
additional physical therapy, and the notes reflect
claimant's continued muscle spasms in the spinal muscles,
the scalenes, and the sternomastoid muscle. (Jt. Ex. 11,
pp. 2-3).
Claimant received additional follow-up treatment with
Dr. Pogel, who uncovered marked dysesthetic sensation to pin
and touch in the distribution of the posterior cervical
roots. From November 1990 through March 1992, he continued
to treat her with medications, and finally diagnosed chronic
pain syndrome and recommended a pain clinic (Jt. Ex. 8, pp.
11-20).
Claimant continued to see Dr. Abernathey, and continued
to report pain and difficulties with her neck. He
considered a C5-6 fusion, but conservative treatment was
chosen. In August, claimant reported a "dramatic improvement
in her neck pain, right upper extremity pain." While
portions of Dr. Abernathey's records indicate claimant was
released on an as-needed basis, there are also notations
that state she was still in a healing period. She was
diagnosed with chronic pain syndrome, and was continuing
treatment with Dr. Pogel for her depression and anxiety (Jt.
Ex. 8, pp. 1-10). On January 28, 1991, Dr. Abernathey
opined that based on examinations and history, claimant had
sustained an 18 percent permanent impairment to her body as
a whole. In June of 1991, he believed that claimant's
activities were limited by pain, which he agreed was a
subjective complaint. He also indicated that objective test
results were normal (Jt. Ex. 9, pp. 7-23). Dr. Abernathey's
records and notations were substantiated by his deposition
testimony. Of particular note is his testimony on page 21,
lines 16-25:
No one can actually test or have a painometer to
assess pain status. In her case that was her
primary problem, was specifically the complaint of
pain. My feeling was that she could perform any
tasks according to her own personal pain
tolerance, what she felt she could accomplish. I
didn't see any contraindication to performing
usual daily activities, if she could tolerate the
pain that they incurred.
(Cl. Ex. 37)
In April of 1991, claimant underwent a functional
capacities evaluation at Mercy Hospital Medical Center, Des
Moines, Iowa. The report reveals that claimant had
performed poorly on the tests administered during the
evaluation. Gripping strength of the right hand were below
the 10th percentile for females in the claimant's age group.
Static arm strength tests resulted in inferior performances,
below the 5th percentile on norms for healthy industrial
Page 5
females. Claimant stopped the tests due to throbbing and
shooting pain in the right side of her neck which she rated
a 10 on an ascending scale of pain of 0 to 10. At one
point, she reported a 12 level of pain, stemming from
household activities. Only a limited number of assessments
were able to be completed. The evaluator believed there was
a "serious question of symptom magnification tendencies on
the [claimant's] part." (Jt. Ex. 12).
Joint exhibit 15 contains records from Ronald Berges,
D.O. Included are health insurance claim forms; signed
authorizations for release of information; notations
concerning what copies of information were sent to which
attorneys; prescriptions; claimant's attorney's letters to
the doctor; a request for a report from the Disability
Determination Services Bureau; and other information which
is wholly irrelevant to the claim. A select few of the
records contain relevant information. Claimant's chief
complaint when she visited Dr. Berges in August of 1991 was
that of chronic pain. A mental status examination found
that claimant reported she did not sleep well without the
assistance of valium; she was nervous; she felt frustrated
because of an inability to perform activities without
significant pain; and guilt. Dr. Berges diagnosed chronic
pain syndrome; adjustment disorder with anxious mood;
cervical neuralgia; and a previous cervical discectomy. For
the next two years, claimant visited Dr. Berges on a monthly
basis, his diagnosis stayed essentially the same, although
in October of 1992 he diagnosed major depression, and he
repeatedly encouraged her to apply for "some type of
disability." He also prescribed various types of
medications to control her adjustment disorder and pain.
Dr. Berges was asked many times for his opinion regarding
the causal connection between claimant's injury and her
current condition. Each time, his opinion, within a
reasonable degree of medical certainty, was that claimant's
injury on February 7, 1990 caused her current condition (Jt.
Ex. 15, pp. 1-46). In April of 1993, Dr. Berges was asked
to use the Guides to the Evaluation of Permanent Impairment,
Third Edition, 1988, to determine claimant's impairment.
His assessment included both objective and subjective
information, and he believed "[h]er depressive symptoms have
continued, and in fact, increased due to her ongoing chronic
pain." (Jt. Ex. 15, p. 47)
Dr. Berges was also asked to review a report from
Michael Taylor, M.D., a psychiatrist located in Des Moines,
Iowa; Thomas Carlstrom, M.D., a neurosurgeon, located in Des
Moines, Iowa and several surveillance tapes. He did not
believe that the activities shown on the surveillance tapes
discredited claimant in any way. The final report from Dr.
Berges is dated May 26, 1993. He continued to diagnose
major depression, single episode; anxiety disorder; and,
chronic pain syndrome related to previous cervical disk
injury. (Jt. Ex. 15, pp. 48-54.5). Dr. Berges confirmed
these thoughts in his deposition (Cl. Ex. 38).
Page 6
Claimant was evaluated by Dr. Carlstrom on November 24,
1992. He attempted to exam her, but she would not move her
neck, nor would she let him move her neck. While he
believed she was experiencing myofascial symptoms in her
neck, he stated that "[t]here is no doubt in my mind that
she is over-reacting considerably" and believed it would be
difficult to return her to work because of low motivation
levels. He observed that claimant was able to ride in a car
for the round trip from Ottumwa to Des Moines in one day.
While he had nothing to offer surgically, he offered that a
pain clinic or job "rehab" situation for light duty work
"might" be successful (Jt. Ex. 18).
Also, in November of 1992, claimant underwent a "Mental
Residual Functional Capacity Assessment" performed by Carole
Davis Kazrueski. Apparently, Ms. Kazrueski (who the
undersigned believes is a psychologist but the record is
unclear on this point) determined that claimant's symptoms
of depression and anxiety were mild. She believed claimant
was preoccupied with her physical condition, thereby causing
a "lessened ability to concentrate [and] tend to the task at
hand." (Jt. Ex. 21, p. 3)
Claimant received second and third opinions addressing
her mental state from Michael Taylor, M.D., and Garry
Teigland, D.O. Dr. Taylor provided two reports. The first,
dated January 21, 1993, details Dr. Taylor's interview with
claimant and confirms that he reviewed her medical history.
He agreed with Dr. Berges' course of treatment and
diagnosis. He believed her major depressive disorder to be
minimally symptomatic, but "directly causally related to the
injury suffered in the course of her employment at Sears,
Roebuck and Company." (Jt. Ex. 20, pp. 1-2) Then, he
reviewed surveillance tapes, which show claimant walking
with her right arm next to her side. The tapes also show
claimant turning around to the back seat of a car to
retrieve something and also show claimant closing a door
with her right arm, and in a subsequent report dated April
5, 1993, recanted his earlier opinion. In short, he did not
believe claimant's complaints of pain, and was unsure
whether she suffered from a major depressive disorder (Jt.
Ex. 20, pp. 1-4). Dr. Taylor confirmed his report in a
deposition (Defendants' Exhibit C).
Dr. Teigland's report, dated January 4, 1993, confirms
that after reviewing records from Dr. Berges, he agreed with
the diagnosis of major depression and believed that claimant
experienced severe muscle spasms. He recommended different
medications on a trial basis. Dr. Teigland is Dr. Pogel's
associate (Jt. Ex. 19).
Two surveillance tapes, along with a deposition of the
investigator who shot the tapes and reports describing the
tapes have been entered into evidence as joint exhibits 33
and 34, and defendants' exhibits A, B and D. The tapes
indeed show claimant walking, turning around in a car,
closing a car door with her right arm, and carrying objects
that cannot possibly weigh more than five to ten pounds.
Page 7
Reports from several investigators associated with the case
indicate that they followed the claimant while she was
shopping, and observed her lifting her right arm above her
head, looking up and turning her neck from side to side.
The undersigned reviewed all of the evidence received,
including joint exhibits 4, 7, 16, 17, 22, 24, and 26-30,
even though there are no specific references to these
exhibits. Most of the information was irrelevant or
duplicative in nature.
It should be noted that claimant has had a prior
episode of treatment for an anxiety attack in 1970 (Jt. Exs.
1 and 3). She went through a course of treatment at the
University of Iowa pain clinic in 1982 (Jt. Ex. 6). And,
she passed her pre-employment physical for Sears, conducted
in 1970 (Jt. Ex. 7).
Additionally, it is noted that claimant continued
working for Sears once she was released to return to work
until March 30, 1991, when the store closed. She admitted
the store closing caused anxiety and a sense of loss.
Subsequent employment has not worked out for claimant.
For several days, she worked in a grocery store passing out
coffee and doughnuts. She was unable to sit to do this job,
and was unable to perform the required duties. She also
worked for KLEE Radio for one week in the advertising sales
department. Her duties included visiting various merchants
to sell air-time for their advertisements. She stated she
was unable to perform the job. Additionally, she worked
briefly as a school teacher's aide. She felt this position
was inappropriate because she was unable to lift physically
challenged children.
Claimant also tried to return to the Sears store, which
had been sold to a private individual. She had similar
duties, but did not have to unbox various appliances sold.
She worked for five weeks, and was unable to continue due to
the pressure, anxiety and a perception that she was not
doing a good job.
Claimant has also suffered other physical problems,
including a broken jaw in 1991. She also underwent
unnecessary surgery in 1982.
Additional testimony came from David Palmer, a former
coworker of claimant's. He offered that claimant was a very
good salesperson, and is an honest person. He surmised that
once claimant returned to work, she was a completely
different person, and left work often due to pain. Tom
Shafer, the former store manager, confirmed that claimant
was a good salesperson and employee. He does not dispute
that she was injured at work. He stated that claimant would
always try to give 120 percent to her job. Claimant's
husband, Kenneth and daughter, Kenetta, also testified at
the hearing. Both stated that claimant was unable to
perform many duties around the house. Both testified that
they believed claimant was in pain most of the time.
Page 8
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to address is whether claimant
sustained an injury on February 7, 1990 which arose out of
and in the course of her employment.
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. App. P. 14(f).
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
Claimant was performing her regular job duties as a
commission salesperson on February 7, 1990. When claimant
sold various merchandise, she would help secure it from the
warehouse. At times, this involved lifting, or helping to
lift the merchandise.
Claimant reported the accident one day after it
happened. Her testimony is consistent with the documentary
evidence received at the hearing. While one medical record
suggests that claimant did not remember injuring her neck,
and felt sudden pain when securing her seat belt while
preparing to drive her car, the other evidence in the case
shows by a preponderance of the evidence that when she
attempted to slide a boxed dryer from a stack, it slipped
and hit her on the right side of the neck and shoulder area.
As a result, it is found that claimant sustained an
injury on February 7, 1990, which arose out of and in the
course of her employment.
The next issue to address is whether claimant sustained
a temporary total or permanent disability, and whether there
is a causal connection between the injury and claimant's
disability.
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
Dr. Abernathey provided primary treatment to claimant
for the neck injury. He performed two surgeries, and was
involved in claimant's treatment for almost one year. In
Page 9
his deposition, he stated that he was of the opinion that
there was a causal relationship between the functional
impairment and the employment-related events. The 18
percent impairment rating was based on loss of range of
motion and pain related to motion, movement, bending,
twisting and lifting.
The record contains no evidence to the contrary.
Claimant has shown by a preponderance of the evidence that
there is a causal connection between the injury and
claimant's permanent disability.
The next issue to resolve is whether claimant is
entitled to permanent partial disability benefits. As she
has sustained an injury to the body as a whole, an analysis
of her industrial disability is warranted.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
Page 10
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
At the time of the injury, claimant was 56 years of
age. She is a high school graduate, with additional
training in the area of sales and Sears product information.
For most of her working life, claimant has been a
commission salesperson for Sears. The evidence shows that
claimant was a very good, productive salesperson, and
enjoyed the competitiveness and challenges presented by
selling. Claimant took pride in her work.
Claimant's work injury caused major changes in her
ability to perform her job duties on a regular basis. After
she was released to return to work, she was able to work
only five hours per week. Claimant's job with Sears ended
when the store closed in March of 1991.
Claimant has endured a long, painful healing period.
She has undergone two surgeries, numerous modalities of
physical therapy and conservative treatment and psychiatric
treatment. She has been diagnosed with chronic pain
syndrome, as well as an adjustment disorder, or a single
episode of depression. The undersigned believes that part
of claimant's mental state stems from the actual closing of
the Sears store, and the sense of loss claimant felt,
perhaps not due to the decrease in her earnings, but a loss
of her sense of identity. She had worked for the store for
30 years, and it would seem natural to experience some
feelings of sadness.
A troubling aspect of claimant's case is the report
written after claimant's functional capacities evaluation.
It reflects poorly on claimant's motivation, effort and
veracity.
Attempts by claimant to return to suitable work have
been disastrous, and short-lived. This, too, is troubling
to the undersigned. No physician placed any restrictions on
claimant's ability to perform any activities. Dr.
Abernathey's opinion that claimant should refrain from
performing activities that cause her pain is insufficient to
find that she has any activity or work restrictions. While
claimant testified that she was under a permanent
restriction of no lifting greater than 25 pounds, the
undersigned is unable to locate this restriction in the
medical evidence. In any event, all of the jobs claimant
held after the injury did not demand that she lift more than
25 pounds. The advertising sales position with KLEE radio
station seems an appropriate position for claimant, but she
stated that she was unable to handle the job due to the
Page 11
physical demands, yet the undersigned is unable to identify
what physical limitations claimant has in addition to the 18
percent impairment to the neck. Pounding the pavement
looking for potential customers to sell products to is not
an easy job, but the record does not support a finding that
claimant is unable to walk, talk, write, open doors, or
perform other activities associated with calling on existing
and potential customers. Likewise, claimant was unable to
pass out various products at grocery stores. Cookies and
beverages do not weigh a great deal, and while claimant
stated that she was unable to sit during this type of work,
again, there is not restriction on her ability to stand.
The undersigned is not certain that the job required
claimant to stand for eight hours per day.
A chronic pain syndrome diagnosis has been a difficult
physical malady to contend with and understand, because the
complaints are purely subjective. Even Dr. Abernathey
admitted that there were no objective findings to support
claimant's complaints of constant pain.
And, although Dr. Berges has repeatedly stated that
claimant's current mental state was caused by the injury
sustained at work on February 7, 1990, her mental status is
but one component of the multitude of factors that make up
an industrial disability. This is not a case that involves
a mental injury caused by work.
After considering all of the factors that constitute an
industrial disability, including claimant's age; her 18
percent permanent impairment rating; the diagnoses of
adjustment disorder and/or depression; her questionable
motivation to return to suitable employment; claimant's
ability to work at a sales position; the defendant
employer's willingness to return claimant to work until the
store closed; the actual store closing; and, claimant's
mental status, it is found that she has sustained a 25
percent loss of earning capacity.
ORDER
WHEREFORE, IT IS ORDERED:
That defendants shall pay claimant permanent partial
disability benefits totaling one hundred twenty-five (125)
weeks at the rate of three hundred fifty-two and 56/100
dollars ($352.56) per week beginning January 28, 1991.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid.
That defendants shall pay interest on benefits awarded
herein as set for forth in Iowa Code section 85.30.
That due to the condition of the exhibits, each party
shall pay their respective costs in pursuing or defending
this claim.
That defendants shall file an activity report upon
Page 12
payment of this award as requested by the agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of September, 1993.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr J Terrence Denefe
Attorney at Law
104 S Court St
Ottumwa IA 52501
Mr E J Kelly
Ms Anne L Clark
Terrace Ctr Ste 111
2700 Grand Ave
Des Moines IA 50312
5-1803
Filed September 7, 1993
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LODEMA KIRKPATRICK, :
:
Claimant, :
:
vs. :
: File No. 943687
SEARS, ROEBUCK & COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
ALLSTATE INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
After considering all of the factors that constitute an
industrial disability, including claimant's age; her 18
percent permanent impairment rating; the diagnoses of
adjustment disorder and/or depression; her questionable
motivation to return to suitable employment; claimant's
ability to work at a sales position; the defendant
employer's willingness to return claimant to work until the
store closed; the actual store closing; and, claimant's
mental status, it is found that she has sustained a 25
percent loss of earning capacity.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
RADA CAMPBELL, :
:
Claimant, :
:
vs. :
: File No. 943879
KIMBERLY QUALITY CARE, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
GALLAGHER BASSETT, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
The record, including the transcript of the hearing
before the deputy and all exhibits admitted into the record,
has been reviewed de novo on appeal. The decision of the
deputy filed December 23, 1991, is affirmed and is adopted
as the final agency action in this case, with the following
additional analysis:
The line of industry the claimant works in is medical
pools providing certified nurse's aides. Claimant testified
that she was not working exclusively for the defendant
employer (Transcript, pages 41-42). This fact was
acknowledged by defendant employer (Tr., pp. 5l-53).
Defendant employer's witness, Jane Phillips, testified that
"most of our people worked for us exclusively." (Tr., p.
53, lines 14-15) Claimant worked for three different
agencies and gave her general impressions about the
employment relationships with those agencies. Both claimant
and Phillips testified that claimant turned down work at
times when work was offered by defendant employer. There is
sufficient evidence in the record to make a finding that
claimant's earnings with defendant employer were less than
the usual weekly earnings of someone working in a medical
pool for certified nurse's aides. Claimant did not work
exclusively for defendant employer and at times turned down
work. Defendant employer's Exhibit B (referred to at the
hearing as Exhibit 2) is not sufficient to rebut evidence of
this finding. Exhibit B lists a number of employees. Only
11 of them (Bayless, Breeze, Broughton, claimant, Cherry,
Duane, Fister, Hall, Kriegel, Perky and Roop) received
payment each week during the period November 3, 1989 through
February 2, 1990. Some received more than claimant (two)
and some (eight) received less than claimant. It is
Page 2
impossible to tell from this exhibit what someone who was
regularly employed would earn if they were working full
time. In this analysis someone working full time would be
someone who worked every week during this 13 week period and
who worked 30 more hours in a week. It is also worth noting
that during this 13 week period claimant only worked 30 or
more hours for six weeks.
Defendant employer shall pay the costs of the appeal,
including the preparation of the hearing transcript.
Signed and filed this ____ day of April, 1992.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. David D. Drake
Attorney at Law
West Towers Office Complex
1200 35th Street, Suite 500
West Des Moines, Iowa 50265
Mr. Stephen W. Spencer
Mr. Lee P. Hook
Attorneys at Law
Suite 300, Fleming Building
P O Box 9130
Des Moines, Iowa 50306-9130
3000
Filed April 30, 1992
BYRON K. ORTON
PJL
before the iowa industrial commissioner
____________________________________________________________
:
RADA CAMPBELL, :
:
Claimant, :
:
vs. :
: File No. 943879
KIMBERLY QUALITY CARE, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
GALLAGHER BASSETT, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
3000
Claimant worked as a certified nurse's aide for three
medical personnel pools. She would work between 8 and 89
hours per week and was free to accept or reject any
assignment offered to her.
She was injured in February 1989. During the 12 months
preceding the accident, claimant worked only six months.
The only issue presented was under which code section should
claimant's rate be calculated.
Claimant determined to be a part-time employee and rate
calculated under Iowa Code section 85.36(10).
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
RADA CAMPBELL, :
:
Claimant, :
:
vs. :
: File No. 943879
KIMBERLY QUALITY CARE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
GALLAGHER BASSETT, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
This is a proceeding in arbitration brought by
claimant, Rada Campbell, against the employer, Kimberly
Quality Care. The hearing was held on November 7, 1991, at
Des Moines, Iowa. The parties stipulated that on February
5, 1990, claimant received an injury which arose out of and
in the course of her employment. The sole issue to be
determined is claimant's workers' compensation rate.
The evidence in this case consists of testimony from
the claimant, Rada Campbell, and the payroll/bill
coordinator, Jane Phillips; claimant's exhibits 1 through 5;
and, employer's exhibits A through D.
findings of fact
The undersigned deputy, having reviewed all the
evidence received, finds the following facts:
In 1963, claimant graduated from high school in
Yugoslavia. She has taken several nursing assistant
courses.
In 1975, claimant moved to the United States and is
presently residing in Des Moines, Iowa.
Since 1975, claimant has held a variety of jobs,
including working as a sales clerk, a waitress, assistant
manager of an apartment complex, a hostess, and an assistant
manager of a restaurant. Since moving to the United States
in 1975, she has been employed continuously.
Claimant began working for Quality Care, a nursing home
in Urbandale, Iowa, in the spring of either 1984 or 1985.
Her duties included providing patient care. After three
months, she obtained other employment with Bishop Drumm,
another nursing home in Johnston, Iowa. Her job duties
Page 2
remain the same, although she began schooling to receive a
certificate in nursing assistance.
In February of 1986, claimant received her certificate
and continued providing complete patient care for residents
in the nursing home. She was employed at Bishop Drumm for
approximately one year. During this time, claimant
testified that she worked on a full-time basis of 40 hours
or more, depending upon the facility's needs. She stated
that she would work nights and weekends, if needed.
While still with Bishop Drumm, she began to work for
Medical Personnel Pool, an agency which provides help to
those in need of nursing assistance or companions. Again,
she was required to provide total care. She received
nursing assistance jobs, and received work assignments
through phone calls from the agency.
In capacity with her position with the Medical
Personnel Pool, claimant was able to freely pick and choose
the hours and assignments she wanted. She was also able to
turn down work that she did not want.
In May of 1986, claimant also began to work for Medical
Personnel Pool and Kimberly Quality Care. For both
agencies, she provided nurse's assistance duties for various
health care facilities. Additionally, in February of 1988
through May of 1989, claimant also worked for Nurse Force,
Inc., another agency which provided the same types of
services and work arrangements as Medical Pool Personnel and
Kimberly Quality Care.
At the heart of this dispute is claimant's status as an
employee. She stated that she preferred to work for the
various agencies so that she could accept as many or as few
hours as she wanted in order to maintain flexibility in her
schedule.
analysis and conclusions of law
The sole issue to be addressed is claimant's correct
rate of compensation under the Iowa Workers' Compensation
Law.
Iowa Code section 85.36 provides, in pertinent part:
The basis of compensation shall be the weekly
earnings of the injured employee at the time of
the injury. Weekly earnings means gross salary,
wages, or earnings of an employee to which such
employee would have been entitled had the employee
worked the customary hours for the full pay period
in which the employee was injured, as regularly
required by the employee's employer for the work
or employment for which the employee was employed,
computed or determined as follows and then rounded
to the nearest dollar:
....
Page 3
6. In the case of an employee who is paid on a
daily, or hourly basis, or by the output of the
employee, the weekly earnings shall be computed by
dividing by thirteen the earnings, not including
overtime or premium pay, of said employee earned
in the employ of the employer in the last
completed period of thirteen consecutive calendar
weeks immediately preceding the injury.
....
10. If an employee earns either no wages or
less than the usual weekly earnings of the regular
full-time adult laborer in the line of industry in
which the employee is injured in that locality,
the weekly earnings shall be one-fiftieth of the
total earnings which the employee has earned from
all employment during the twelve calendar months
immediately preceding the injury.
Claimant argues that her workers' compensation rate
should be based on the total amount of income she earned
during the twelve months preceding the injury. She argues
that she was not a full-time employee of any of the medical
pools for which she worked. In fact, claimant explained
that she chose not to become a full-time employee for
anyone, even though she had several offers from facilities
for which she provided help through the assignments she
received from Medical Personnel Pool, Kimberly Quality Care,
or Nurse Force, Inc. Her preference was to work as many
hours a week as she wanted so that she could take extended
vacations, and so that she could tailor her work schedule to
fit her lifestyle. As a result, claimant would sometimes
work as few as 30 hours per week, or as many as eight or
nine hours per week. Additionally, claimant worked
approximately six months in 1988. Due to her injury,
claimant is currently unable to work.
If claimant is considered a part-time employee, her
yearly earnings prior to the injury equal $23,121.06
(Claimant's Exhibit 5). This figure divided by 50 yields
gross weekly earnings of $462.42. Her rate, based on the
applicable exemptions would be $287.70. See Guide To
Workers' Compensation Claim Handling (July 1989).
Defendants argue that claimant was not a part-time
employee, as she worked an average of 30.44 hours per week
during the thirteen weeks preceding the injury date. From
the time she commenced her employment with defendant, she
worked an average of 34 hours per week.
Defendants state further that they considered claimant
a full-time employee, and that she was eligible for vacation
pay and a health care plan. These benefits are provided to
employees who work 750 hours in six months.
Defendants rely on King v. City of Mount Pleasant, 474
N.W.2d 564 (Iowa 1991). In King, the claimant, who acted as
a mayor in Mount Pleasant, Iowa, was killed while conducting
a city council meeting. The court found that his workers'
Page 4
compensation rate was to be based on the income he received
from his mayoral duties. This income was viewed as an
annual salary. Mr. King also held employment as an
administrative manager, and any income earned from this job
was excluded in calculating the rate.
In order to apply Iowa Code section 85.36(10), it is
necessary to make a preliminary finding that Rada Campbell,
as an employee, "earns...less than the usual weekly earnings
of the regular full-time adult laborer in the line of
industry in which the employee is injured in that
locality...."
Defendants also rely on Hingtgen v. Mary Goodmann,
(Appeal Decision, September 30, 1988), to support their
position. In Hingtgen, the agency held that in the absence
of evidence showing otherwise, Ms. Hintgen's earnings as a
domestic aide working 20 hours per week, were the usual
earnings as a regular, full-time adult laborer in the line
of industry in the locality.
In the present case, both claimant and defendants
offered evidence to show the usual earnings of a regular
full-time adult laborer in the certified nurse's aide
industry in Des Moines. Claimant offers her testimony
regarding her ability she has in conjunction with
opportunites to secure full-time work regular hours and
shifts for several facilities in Des Moines.
Defendants rely on earnings of other workers employed
by them.
Claimant testified that on several occasions, she has
been offered full-time employment at some of the facilities
at which she has worked. The facilities offered 40 or more
hours per week, a structured schedule or work shift, and
hourly wages of $6.75 to more than $7.00 an hour. Claimant
turned down the full-time employment because she wanted the
flexibility of part-time employment, and the ability to
accept or reject any assignment.
Defendants offered exhibits A and B which summarized
the hours worked by other workers employed by them. Some
employees worked an average of 40 hours a week, while others
worked an average of 4.5 hours per week.
The difficult issue to be determined is whether
claimant's rate would be most appropriately determined under
section 85.36(6) or 85.36(10). Guidance comes from the
first unnumbered paragraph of the section. Weekly earnings
are defined as gross salary to which a claimant would have
been entitled had she worked the customary hours for the
full pay period in which she was injured as regularly
required by the employer "for the work or employment for
which the employee was employed."
Sub-paragraph 10 has been discussed in several
published cases. One authority has commented that the
subsection is typically used to figure the rate for part-
time workers, and is beneficial to the worker who holds two
Page 5
jobs and whose injury on a part-time job causes an inability
to work at other jobs. Iowa Workers' Compensation Law and
Practice, Lawyer and Higgs, Section 12-8, p. 100. In
Winters v. Te Slaa, I Iowa Indus. Comm'r Rep. 367 (1981),
the industrial commissioner determined that the rate for a
fatally part-time truck driver was correctly determined
under section 85.36(10) where he had other wages earned
during the year prior to his death.
In Ladd v. Ford Brothers Van & Storage Company, Thirty-
fourth Biennial Rep., Iowa Indus. Comm'r 177 (1979),
claimant was hired to load a truck as a spot laborer and
broke his wrist on the one day that he worked. He was held
to be a part-time employee and section 85.36(10) was
applied.
Although a difficult decision, it is determined that
claimant is considered a part-time employee, and total wages
should be taken into account in determining her rate under
85.36(10).
Most persuasive was claimant's actual working schedule,
whereby she chose to work only part of the year.
Additionally, claimant was free to pick and choose any
assignments she wanted from the defendants, and would
sometimes work as few as eight hours per week for them. The
undersigned finds the case distinguishable from the King
case in that Mr. King was not a part-type mayor; he
fulfilled all of the mayoral duties required by his
assignment as the same. In the instant case, claimant
certainly was a part-time nursing assistant. And, even
though the defendants considered her to be a full-time
employee by offering vacation pay and opportunity to
purchase health insurance after working 750 hours in six
months, it was during only the second half of 1989 that
claimant would have been eligible for these benefits. As
stated earlier, claimant did not work for the defendant from
January 1989 through May 1989 (Cl. Ex. 5).
As a result, claimant's rate is to based upon her total
earnings for the year, and divided by 50. Claimant's gross
weekly earnings are $462.42 per week. Her correct workers'
compensation rate is $287.70 per week.
Page 6
order
THEREFORE, it is ordered:
That claimant is a part-time employee for the
defendants.
That claimant's total earnings for the twelve months
preceding the injury should be used in determining
claimant's workers' compensation rate.
That claimant's correct workers' compensation rate is
two hundred eighty-seven and 70/100 dollars ($287.70) per
week.
Signed and filed this ____ day of December, 1991.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copietcws To:
Mr David D Drake
Attorney at Law
West Towers Office
1200 35th St Ste 500
West Des Moines IA 50265
Mr Stephen W Spencer
Attorney at Law
218 6th Ave Ste 300
P O Box 9130
Des Moines IA 50306
3000
Filed December 23, 1991
Patricia J. Lantz
before the iowa industrial commissioner
____________________________________________________________
:
RADA CAMPBELL, :
:
Claimant, :
:
vs. :
: File No. 943879
KIMBERLY QUALITY CARE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
GALLAGHER BASSETT, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
3000
Claimant worked as a certified nurse's aide for three
medical personnel pools. She would work between 8 and 89
hours per week, and was free to accept or reject any
assignment offered to her.
She was injured in February 1989. During the 12 months
preceding the accident, claimant worked only six months.
The only issue presented was under which Code section should
claimant's rate be calculated.
Claimant determined to be a part-time employee, and rate
calculated under Iowa Code section 85.36(10).
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
RONALD E. SISTERN,
Claimant,
vs.
File No. 943902/981364
CRANE COMPANY,
A P P E A L
Employer,
D E C I S I O N
and
NATIONAL UNION FIRE
INSURANCE COMPANY,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
November 26, 1991 is affirmed and is adopted as the final agency
action in this case.
Defendants shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of March, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Bruce L. Walker
Attorney at Law
P.O. Box 2150
Iowa City, Iowa 52244-2150
Mr. James E. Shipman
Attorney at Law
115 3rd St. SE, Ste 1200
Cedar Rapids, Iowa 52401
5-1803
Filed March 17, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RONALD E. SISTERN,
Claimant,
vs.
File No. 943902/981364
CRANE COMPANY,
A P P E A L
Employer,
D E C I S I O N
and
NATIONAL UNION FIRE
INSURANCE COMPANY,
Insurance Carrier,
Defendants.
____________________________________________________________
5-1803
Claimant sustained a work-related aggravation to a
preexisting back condition.
He was given a 15 percent functional impairment rating, and
no work restrictions. Claimant was released to return to
his old job, but bid into a lower paying position that
required less lifting.
Claimant awarded 15 percent industrial disability.
Page 1
before the iowa industrial commissioner
_________________________________________________________________
:
JOHN D. LAWRENCE, :
:
Claimant, : File No. 943913
:
vs. : A P P E A L
:
INTERNATIONAL PAPER COMPANY, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
_________________________________________________________________
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal.
issues
Those portions of the proposed agency decision pertaining to
issues not raised on appeal are adopted as a part of this appeal
decision. The issues raised on appeal are:
1. Did the deputy err in determining that the claimant sustained
his burden of proof that he had an injury arising out of and in
the course of his employment on March 13, 1990?
2. Did the deputy err in determining that the claimant's current
disability, if any, was causally connected to the alleged injury
on March 13, 1990?
3. Did the deputy err in awarding the claimant permanent partial
disability benefits equal to ten per cent [sic] of the body as a
whole?
findings of fact
The findings of fact contained in the proposed agency decision
filed August 18, 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 was born on December 21, 1962 and is a high school
graduate. He completed one semester at Clinton Community College
and currently attends Hamilton Technical Institute where he is
working on an associate degree in computer aided drafting.
Claimant's work history prior to 1983 was as a gas station
attendant and assistant manager. In 1983, he commenced working
for employer. He worked one week as a sheet shaker and then
moved to the other side of the plant where he packed cartons for
about six months. For the next year and a half he caught cartons
at the end of a conveyor belt and stacked them either on a pallet
or into a case and then on a pallet. Afterwards, he changed jobs
and was assigned to stripping excess waste off cartons and
cutting cartons individually and stacking them on a pallet. He
did this job for about six months and then obtained a relief job
Page 2
as a forklift operator. Finally, he obtained a permanent fork
truck operator position in the shipping department around 1987.
In March 1990, his duties included loading and unloading trucks.
On July 9, 1987, claimant was involved in a work incident
where his fork truck fell off the dock while he was loading a
truck which the driver pulled away without shutting the door.
The incident resulted in bruises on claimant's forearms but no
other significant medical problems. However, some months
afterwards, claimant began experiencing lower back pain and
sought treatment from Charles J. Droste, D.C., a chiropractor.
In October 1989, he sought medical treatment at Bluff Medical
Center. He was put on conservative physical therapy.
Claimant testified that he was injured at work on March 13,
1990, as a result of repetitive driving over an uneven dock
plate. He reported the incident to Steve Coppess and called
Diane Honeywell the next day. Claimant was taken off work until
May 1990. At that time, he was transferred to the plant on
Harrison Drive and was given a more moderate job with smoother
dock plates.
Claimant testified that on January 6, 1990, he re-injured
his back while driving back and forth from the old to the new
facility on uneven concrete. He lost no time from work as a
result of this incident.
A review of the pertinent medical evidence of record reveals
that claimant saw Dr. Droste on August 12, 1988 with complaints
of low back pain. He noted that claimant had a similar condition
the year before. A soft tissue massage was performed. This
procedure was repeated on August 16, 1988 (Exhibit F).
On October 11, 1989, claimant presented to Bluff Medical
Center with complaints of lower back pain, unimproved with
chiropractic treatment. On examination, straight leg raising was
positive bilaterally before 60 degrees for tight ham strings and
ache in the lower back. X-rays were within normal limits except
for some straightening of the lumbar spine consistent with muscle
spasms. Physical therapy was recommended. (Ex. E, page 1).
On March 14, 1990, claimant returned to Bluff Medical Center
where he saw Charlton Barnes, M.D., orthopedic surgeon. He
presented with complaints of marked difficulty with his back,
pain down his right leg and into his right calf. Straight leg
raising was markedly positive on the right. Further testing was
recommended. On March 19, 1990, he underwent a CT scan of the
lumbar spine which was abnormal (Ex. E, p. 4). On April 2, 1990,
he underwent an MRI of the lumbar spine which was also abnormal
(Ex. E, p. 5). Dr. Barnes reported that the CAT scan and MRI
showed disc protrusion of L5, S1. (Ex. E, p. 2).
On April 19, 1990, Dr. Barnes released claimant for light
duty. However, no jobs were available and claimant remained off
work. Dr. Barnes then referred claimant for EMG studies and
neurological examination. Prior thereto, claimant went on his
own to see Eugene E. Herzberger, M.D., for neurosurgical
Page 3
evaluation. Dr. Herzberger noted bilateral lumbosacral muscle
spasm with limitation of motions of the lumbosacral spine and
limited straight leg raising at about 55-60 degrees bilaterally.
He recommended continued conservative therapy (Ex. H, p. 1).
An evaluation performed by Dr. Ancheta on April 25, 1990
revealed normal EMG studies of the right lower extremity. He
found no definite evidence of focal neurologic deficits and
attributed claimant's low back pain to L5-S1 disc protrusion. He
recommended continued conservative therapy (Ex. E, pp. 7-8).
A follow-up examination with Dr. Herzberger on May 10, 1990,
revealed that claimant's condition had improved (Ex. H, p. 2).
Dr. Barnes released claimant for work activity on May 14,
1990. On June 21, 1990, claimant presented with spinal headaches
and a myelogram was ordered. This was within normal limits (Ex.
E, p. 10). On June 29, 1990, Dr. Barnes ordered a corset and
seat back pad to alleviate claimant's back symptoms. On August
27, 1990, claimant was discharged from Dr. Barnes' care (Ex. E,
pp. 2-3).
On January 7, 1991, claimant returned to Dr. Barnes with
complaints of low back pain radiating into the right leg. He was
tried on Robaxin and a corset. By February 7, 1991, his
condition was somewhat improved. (Ex. E, p. 3).
On May 13, 1991, claimant returned to Dr. Colah for
follow-up examination. Dr. Colah agreed with continued
conservative therapy. He also recommended a possible job change
which does not require strenuous exercise or use of a vibrating
machine. (Ex. G, p. 3).
conclusions of law
The first issue to be determined is whether claimant
sustained an injury on March 13, 1990 which arose out of and in
the course of his employment with employer.
Claimant has the burden of proving by a preponderance of the
evidence that he received an injury on March 13, 1990, which
arose out of and in the course of his employment. McDowell v.
Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); Musselman
v. Central Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967). The
words "arising out of" have been interpreted to refer to the
cause and origin of the injury. McClure v. Union County, 188
N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consolidated School
District, 68 N.W.2d 63, 65 (Iowa 1955). The words "in the course
of" refer to the time, place and circumstances of the injury.
McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. An injury
occurs in the course of the employment when it is within the
period of employment at a place the employee may reasonably be,
and while the employee is doing work assigned by the employer or
something incidental to it. Cedar Rapids Community School
District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979); McClure 188
N.W.2d at 287; Musselman, 154 N.W.2d at 130.
Page 4
The Supreme Court has defined a personal injury for the
purposes of workers' compensation cases. Almquist v. Shenandoah
Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this case the Court
found that a personal injury, is an injury to the body, the
impairment of health, or a disease, not excluded by the Workers
Compensation Act, which comes about, not through the natural
building up and tearing down of the human body, but because of a
traumatic or other hurt or damage to the health or body of an
employee. The injury to the human body must be something,
whether an accident or not, that acts extraneously to the natural
processes of nature, and thereby impairs the health, overcomes,
injures, interrupts, or destroys some function of the body, or
otherwise damages or injures a part or all of the body.
The Almquist Court further observed that while a personal
injury does not include an occupational disease under the
Workmen's Compensation Act, yet an injury to the health may be a
personal injury. A personal injury includes a disease resulting
from an injury. However, the result of changes in the human body
incident to the general processes of nature do not amount to a
personal injury. This is true, even though natural change may
come about because the life has been devoted to labor and hard
work. Results of those natural changes do not constitute a
personal injury even though the same brings about impairment of
health or the total or partial incapacity of the functions of the
human body.
The Supreme Court has also recognized that a cumulative
injury may occur over a period of time. The injury in such cases
occurs when, because of pain or physical disability, the claimant
is compelled to leave work. McKeever Custom Cabinets v. Smith,
379 N.W.2d 368, 374 (Iowa 1985). Moreover, claimant's last
employer becomes liable for the cumulative injury, even if the
incidents that lead to the ultimate injury do not occur while a
claimant is employed with the last employer. McKeever, 379
N.W.2d at 376; See also, Doerfer Division of CCA v. Nicol, 359
N.W.2d 428, 434-35 (Iowa 1984).
*****
[Claimant testified that he called Diane Honeywell on March
14, 1990, and reported that he was experiencing severe back pain.
At that time, he related that he thought it might be a
continuation of the back pain he had experienced in 1987.
Claimant now asserts that he suffered an injury arising out
of and in the course of his employment on March 13, 1990.
Claimant operated a forklift for his employer. Claimant urges
that his present back condition was caused by repeated driving
over a bumpy surface with the forklift.
In 1987, claimant was involved in an accident at work while
driving a forklift. Claimant was loading a truck when the truck
driver prematurely pulled a away from the dock, causing
claimant's forklift to fall forward and injuring claimant.
Claimant sought treatment for back problems from several doctors
over the next few years. When consulting each of these doctors,
Page 5
claimant consistently attributed his back problems to the 1987
injury. Claimant acknowledges back pain since the 1987 injury.
At one point, claimant was informed he could not pursue a
workers' compensation action for the 1987 injury because the
statute of limitations had expired.
The March 13, 1990 incident did not involve a traumatic
accident. Rather, claimant testified he went to work that day
without any back pain, but later that night experienced
especially sharp back pain. Claimant urges that March 13, 1990
constitutes a work injury from driving a forklift over bumpy
surfaces.
The deposition of Dr. Barnes confirms that claimant
attributed his back condition to the 1987 injury. Dr. Barnes is
claimant's source of medical evidence pertaining to the
phenomenon of forklift operators suffering back problems when
driving forklifts over bumpy surfaces over long periods of time.
Dr. Barnes bases his knowledge on a study conducted by the Boeing
company. However, Dr. Barnes in his deposition still appears to
attribute the origin of claimant's back condition to the 1987
injury.
Claimant has failed to carry his burden of proof to show a
work injury occurred on March 13, 1990. Rather, the greater
weight of the evidence shows that March 13, 1990, represented
just another incident of back pain stemming from the 1987 injury,
one of many incidents of back pain claimant admits plagued him
ever since the 1987 injury.
In addition, even if claimant had established a work injury
on March 13, 1990, claimant has failed to show that his present
back condition is causally connected to that injury. The greater
weight of the evidence shows that claimant's back condition
predated March 13, 1990, and in fact originated with claimant's
1987 forklift injury. Claimant cannot avoid the effect of the
statute of limitations contained in Iowa Code section 85.26 by
assigning his present condition to an imaginary 1990 injury that
is in reality merely one in a long line of symptoms from his 1987
injury.]
WHEREFORE, the decision of the deputy is reversed.
order
THEREFORE, it is ordered:
That claimant shall take nothing from these proceedings.
That defendant shall pay the costs of this matter including the
transcription of the hearing.
Signed and filed this ____ day of February, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Page 6
Mr. David H. Sivright, Jr.
Ms. Martha Shaff
Attorneys at Law
408 South Second Street
Clinton, Iowa 52732
Mr. Greg A. Egbers
Attorney at Law
600 Union Arcade Building
111 East Third Street
Davenport, Iowa 52801-1596
1108; 2402
Filed February 26, 1993
Byron K. Orton
JMI
before the iowa industrial commissioner
____________________________________________________________
_____
:
JOHN D. LAWRENCE, :
:
Claimant, : File No. 943913
:
vs. : A P P E A L
:
INTERNATIONAL PAPER COMPANY, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
_____
1108; 2402
Claimant suffered an injury while driving a forklift at work
in 1987, when the truck he was loading pulled away from the
dock prematurely. Claimant experienced back pain frequently
over the next few years, and sought medical treatment from
several physicians. Claimant told each physician his
problem began with the forklift incident in 1987. At some
point, claimant was told he could not pursue a workers'
compensation claim because the statute of limitations had
expired. Claimant brought an action for an alleged injury
in 1990, where he went to work without symptoms, but that
night had pain again in his back. Claimant alleged he
suffered a work injury that day from driving the forklift
over an uneven surface. Held that the greater weight of the
evidence showed that claimant's back condition was not
caused by a 1990 injury. Claimant was attempting to
circumvent the statute of limitations.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JOHN D. LAWRENCE, :
:
Claimant, : File No. 943913
:
vs. : A R B I T R A T I O N
:
INTERNATIONAL PAPER COMPANY, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by John D.
Lawrence, claimant, against International Paper Company,
self-insured employer, to recover benefits under the Iowa
Workers' Compensation Act as a result of an alleged injury
sustained on March 13, 1990. This matter came for hearing
before the undersigned deputy industrial commissioner in
Davenport, Iowa on July 28, 1992. The record was considered
fully submitted at the close of the hearing. Claimant was
present and testified. Also present and testifying were
Diane Honeywell, Suzanne Nixon and Terry Gertson. The
documentary evidence identified in the record consists of
joint exhibits A-N.
ISSUES
Pursuant to the prehearing report and order dated July
28, 1992, the parties have presented the following issues
for resolution:
1. Whether claimant sustained an injury on March 13,
1990 which arose out of and in the course of the employment
with employer;
2. Whether the alleged injury is a cause of temporary
and permanent disability;
3. The extent of entitlement to weekly compensation
for temporary total disability or healing period benefits;
4. The extent of entitlement to weekly compensation
for permanent disability benefits;
5. The type of permanent disability, if the injury is
found to be the cause of permanent disability; and,
6. Whether claimant is entitled to medical benefits
under Iowa Code section 85.27.
FINDINGS OF FACT
The undersigned has carefully considered all of the
Page 2
testimony given at the hearing, arguments made, evidence
contained in the exhibits, and makes the following findings:
Claimant was born on December 21, 1962 and is a high
school graduate. He completed one semester at Clinton
Community College and currently attends Hamilton Technical
Institute where he is working on an associate degree in
computer aided drafting. Claimant's work history prior to
1983 was as a gas station attendant and assistant manager.
In 1983, he commenced working for employer. He worked one
week as a sheet shaker and then moved to the other side of
the plant where he packed cartons for about six months. For
the next year and a half he caught cartons at the end of a
conveyor belt and stacked them either on a pallet or into a
case and then on a pallet. Afterwards, he changed jobs and
was assigned to stripping excess waste off cartons and
cutting cartons individually and stacking them on a pallet.
He did this job for about six months and then obtained a
relief job as a forklift operator. Finally, he obtained a
permanent fork truck operator position in the shipping
department around 1987. In March 1990, his duties included
loading and unloading trucks.
On July 9, 1987, claimant was involved in a work
incident where his fork truck fell off the dock while he was
loading a truck which the driver pulled away without
shutting the door. The incident resulted in bruises on
claimant's forearms but no other significant medical
problems. However, some months afterwards, claimant began
experiencing lower back pain and sought treatment from
Charles J. Droste, D.C., a chiropractor. In October 1989,
he sought medical treatment at Bluff Medical Center. He was
put on conservative physical therapy.
Claimant testified that he was injured at work on March
13, 1990, as a result of repetitive driving over an uneven
dock plate. He reported the incident to Steve Coppess and
called Diane Honeywell the next day. Claimant was taken off
work until May 1990. At that time, he was transferred to
the plant on Harrison Drive and was given a more moderate
job with smoother dock plates.
Claimant testified that on January 6, 1990, he
re-injured his back while driving back and forth from the
old to the new facility on uneven concrete. He lost no time
from work as a result of this incident.
A review of the pertinent medical evidence of record
reveals that claimant saw Dr. Droste on August 12, 1988 with
complaints of low back pain. He noted that claimant had a
similar condition the year before. A soft tissue massage
was performed. This procedure was repeated on August 16,
1988 (Exhibit F).
On October 11, 1989, claimant presented to Bluff
Medical Center with complaints of lower back pain,
unimproved with chiropractic treatment. On examination,
straight leg raising was positive bilaterally before 60
degrees for tight ham strings and ache in the lower back.
X-rays were within normal limits except for some
Page 3
straightening of the lumbar spine consistent with muscle
spasms. Physical therapy was recommended. (Ex. E, page 1).
On March 14, 1990, claimant returned to Bluff Medical
Center where he saw Charlton Barnes, M.D., orthopedic
surgeon. He presented with complaints of marked difficulty
with his back, pain down his right leg and into his right
calf. Straight leg raising was markedly positive on the
right. Further testing was recommended. On March 19, 1990,
he underwent a CT scan of the lumbar spine which was
abnormal (Ex. E, p. 4). On April 2, 1990, he underwent an
MRI of the lumbar spine which was also abnormal (Ex. E, p.
5). Dr. Barnes reported that the CAT scan and MRI showed
disc protrusion of L5, S1. (Ex. E, p. 2).
On April 19, 1990, Dr. Barnes released claimant for
light duty. However, no jobs were available and claimant
remained off work. Dr. Barnes then referred claimant for
EMG studies and neurological examination. Prior thereto,
claimant went on his own to see Eugene E. Herzberger, M.D.,
for neurosurgical evaluation. Dr. Herzberger noted
bilateral lumbosacral muscle spasm with limitation of
motions of the lumbosacral spine and limited straight leg
raising at about 55-60 degrees bilaterally. He recommended
continued conservative therapy (Ex. H, p. 1).
An evaluation performed by Dr. Ancheta on April 25,
1990 revealed normal EMG studies of the right lower
extremity. He found no definite evidence of focal
neurologic deficits and attributed claimant's low back pain
to L5-S1 disc protrusion. He recommended continued
conservative therapy (Ex. E, pp. 7-8).
A follow-up examination with Dr. Herzberger on May 10,
1990, revealed that claimant's condition had improved (Ex.
H, p. 2).
Dr. Barnes released claimant for work activity on May
14, 1990. On June 21, 1990, claimant presented with spinal
headaches and a myelogram was ordered. This was within
normal limits (Ex. E, p. 10). On June 29, 1990, Dr. Barnes
ordered a corset and seat back pad to alleviate claimant's
back symptoms. On August 27, 1990, claimant was discharged
from Dr. Barnes' care (Ex. E, pp. 2-3).
On January 7, 1991, claimant returned to Dr. Barnes
with complaints of low back pain radiating into the right
leg. He was tried on Robaxin and a corset. By February 7,
1991, his condition was somewhat improved. (Ex. E, p. 3).
On May 13, 1991, claimant returned to Dr. Colah for
follow-up examination. Dr. Colah agreed with continued
conservative therapy. He also recommended a possible job
change which does not require strenuous exercise or use of a
vibrating machine. (Ex. G, p. 3).
CONCLUSIONS OF LAW
The first issue to be determined is whether claimant
sustained an injury on March 13, 1990 which arose out of and
Page 4
in the course of his employment with employer.
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on March 13,
1990, which arose out of and in the course of his
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904,
908 (Iowa 1976); Musselman v. Central Telephone Co., 154
N.W.2d 128, 130 (Iowa 1967). The words "arising out of"
have been interpreted to refer to the cause and origin of
the injury. McClure v. Union County, 188 N.W.2d 283, 287
(Iowa 1971); Crowe v. DeSoto Consolidated School District,
68 N.W.2d 63, 65 (Iowa 1955). The words "in the course of"
refer to the time, place and circumstances of the injury.
McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. An
injury occurs in the course of the employment when it is
within the period of employment at a place the employee may
reasonably be, and while the employee is doing work assigned
by the employer or something incidental to it. Cedar Rapids
Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa
1979), McClure 188 N.W.2d at 287; Musselman, 154 N.W.2d at
130.
The Supreme Court has defined a personal injury for the
purposes of workers' compensation cases. Almquist v.
Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this
case the Court found that a personal injury, is an injury to
the body, the impairment of health, or a disease, not
excluded by the Workers Compensation Act, which comes about,
not through the natural building up and tearing down of the
human body, but because of a traumatic or other hurt or
damage to the health or body of an employee. The injury to
the human body must be something, whether an accident or
not, that acts extraneously to the natural processes of
nature, and thereby impairs the health, overcomes, injures,
interrupts, or destroys some function of the body, or
otherwise damages or injures a part or all of the body.
The Almquist Court further observed that while a
personal injury does not include an occupational disease
under the Workmen's Compensation Act, yet an injury to the
health may be a personal injury. A personal injury includes
a disease resulting from an injury. However, the result of
changes in the human body incident to the general processes
of nature do not amount to a personal injury. This is true,
even though natural change may come about because the life
has been devoted to labor and hard work. Results of those
natural changes do not constitute a personal injury even
though the same brings about impairment of health or the
total or partial incapacity of the functions of the human
body.
The Supreme Court has also recognized that a cumulative
injury may occur over a period of time. The injury in such
cases occurs when, because of pain or physical disability,
the claimant is compelled to leave work. McKeever Custom
Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985).
Moreover, claimant's last employer becomes liable for the
cumulative injury, even if the incidents that lead to the
ultimate injury do not occur while a claimant is employed
with the last employer. McKeever, 379 N.W.2d at 376; See
Page 5
also, Doerfer Division of CCA v. Nicol, 359 N.W.2d 428,
434-35 (Iowa 1984).
The greater weight of the evidence in this case
supports the finding that claimant was relatively
asymptomatic on or before March 13, 1990. While he had some
low back pain as a result of a work incident in July 1987,
claimant lost no time from work and performed his job duties
without medical restrictions or limitations. On March 13,
1990, claimant worked the night shift from 10:30 p.m. to
6:00 a.m. the morning of March 14, 1990. That morning,
while in bed, he felt a sharp pain in his low back when he
rolled over. The pain was so severe that he sought medical
treatment. He was examined by Dr. Barnes. He related to
Dr. Barnes that he had a work injury in July 1987, but was
asymptomatic since that time. On March 14, 1990, he
presented with increased and marked back pain with pain down
his right leg into his right calf. A CAT scan of the lumbar
spine taken on March 19, 1990 showed a mild disc protrusion
at L4-5 and at L5-S1.
Claimant testified that he called Diane Honeywell on
March 14, 1990, and reported that he was experiencing severe
back pain. At that time, he related that he thought it
might be a continuation of the back pain he had experienced
in 1987. However, after thinking about it for a little
while, claimant felt that the recurrence of back pain may be
due to a four year history of driving a fork lift over an
uneven dock plate. In any event, claimant is not a
physician and his conjecture as to the etiology of his pain
is irrelevant. The fact is that claimant went to work on
March 13, 1990 asymptomatic. He returned from work on March
14, 1990, after eight hours on the fork lift, and
experienced severe and intractable back pain. There were no
intervening circumstances which could have caused symptoms.
Although many injuries are traumatic in nature, no
accident is required. Olson v. Goodyear Service Stores, 125
N.W.2d 251, 254 (Iowa 1963). Neither does there have to be
a special incident or unusual occurrence. Ford v. Goode, 38
N.W.2d 158, 159 (Iowa 1949). The Iowa Supreme Court has
declared the selection of an injury date unimportant in the
case where the evidence showed that another date, only a few
days off from the date given in the claimant's application,
was the injury date. Yeager v. Firestone Tire and Rubber
Company, 112 N.W.2d 299, 301 (Iowa 1961). A personal injury
may develop gradually over an extended period of time.
Black v. Creston Auto Co., 281 N.W. 189 (Iowa 1938). Dr.
Barnes testified in a deposition on June 24, 1992, that
based on a study done by Boeing Aircraft Corporation, fork
lift drivers have a history of back problems because of the
constant bumping and vibrations experienced during the
course of driving this vehicle. (Ex. K, pp. 7-8).
Accordingly, it is determined that claimant has met his
burden of proof that he sustained an injury on March 13,
1990, arising out of and in the course of employment with
employer.
Since claimant has suffered an injury, the next
Page 6
question to be resolved is whether the injury has caused a
permanent disability. The claimant has the burden of
proving by a preponderance of the evidence that the injury
of March 13, 1990, is causally related to the disability on
which he now bases his claim. Bodish v. Fischer, Inc., 133
N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18
N.W.2d 607, 613-14 (Iowa 1945). A possibility is
insufficient; a probability is necessary. Burt v. John
Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa
1955). The question of causal connection is essentially
within the domain of expert testimony. Bradshaw v. Iowa
Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert
medical evidence must be considered with all other evidence
introduced bearing on the causal connection. Burt, 73
N.W.2d at 738. The opinion of the experts need not be
couched in definite, positive or unequivocal language.
Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).
Moreover, the expert opinion may be accepted or rejected, in
whole or in part, by the trier of fact. Sondag, 220 N.W.2d
at 907. Finally, the weight to be given to such an opinion
is for the finder of fact, and that may be affected by the
completeness of the premise given the expert and other
material circumstances. Bodish, 133 N.W.2d at 870;
Musselman, 154 N.W.2d at 133. The Supreme Court has also
observed that greater deference is ordinarily accorded
expert testimony where the opinion necessarily rests on
medical expertise. Sondag, 220 N.W.2d at 907.
In this case, Dr. Barnes testified that in his opinion,
claimant has a permanent impairment as a result of his
protruded disc at L5-S1 and is limited to lifting a maximum
of 40 pounds or 15-20 pounds repetitively. As a result of
his bulging disc, Dr. Barnes gave him a five percent
permanent impairment rating. (Ex. K, p. 10).
Dr. Barnes opinion is not refuted or contraindicated by
any other medical evidence in the record. Therefore, his
testimony is the most compelling evidence in this case. He
has had the most opportunity to treat and observe claimant.
He has followed claimant's entire course of treatment for
his back problems. Consequently, claimant has satisfied his
burden of proof in demonstrating that he has suffered a
permanent injury.
The next question to be resolved is the extent of
claimant's industrial disability.
Industrial disability was defined in Diederich v.
Tri-City Railway Co., 258 N.W.2d 899, 902 (Iowa 1935) as
loss of earning capacity and not a mere `functional
disability' to be computed in the terms of percentages of
the total physical and mental ability of a normal person.
The essence of an earning capacity inquiry then, is not how
much has the claimant been functionally impaired, but
whether that impairment, in combination with the claimant's
age, education, work experience, pre and post injury wages,
motivation and ability to get a job within her restrictions,
if any restrictions have been imposed, have caused a loss of
earning capacity. Olson v. Goodyear Service Stores, 125
N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway
Page 7
Co., 258 N.W. 899, 902 (Iowa 1935); Peterson v. Truck Haven
Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658
(1985); Christensen v. Hagen, Inc., 1 Iowa Industrial Comm'r
Dec. No. 3, 529, 534-535 (1985).
There are no weighting guidelines that indicate how
each of the factors are to be considered. There is no
equation which can be applied and then calculated to
determine the degree of industrial disability to the body as
a whole. It therefore becomes necessary for the deputy or
commissioner to draw upon prior experience and general and
specialized knowledge to make a finding with regard to the
degree of industrial disability. See, Peterson, 1 Iowa
Industrial Commissioner Decisions No. 3, at 658;
Christening, 1 Iowa Industrial Commissioner Decisions No.
3, at 535.
In this instance, claimant is relatively young and his
industrial disability is not as serious as it would be for
an older employee. McCoy v. Donaldson Co., Inc., I IWAC
Decisions of the Iowa Industrial Commissioner 400, 405
(Appeal 1989). Claimant has a five percent functional
impairment which has resulted in some lifting restrictions.
Claimant is still working at International Paper Company and
is earning more money now than he was at the time of his
injury. Claimant's capacity to earn more money through
overtime is limited because of his attendance at Hamilton
Technical College and not because of his impairment.
Claimant admitted that he performs his usual job without
restriction but qualified this when he stated that the job
requires no manual lifting. Therefore, while claimant has
not experienced a loss of earnings, his earning capacity is
diminished because of his back problems.
Based upon the foregoing factors, all of the factors
used to determine industrial disability, and employing
agency expertise, it is determined that claimant sustained a
ten percent industrial disability. He is entitled to fifty
weeks of permanent partial disability benefits at the rate
of $234.83 per week.
Claimant is also entitled to healing period benefits
during his time off work which was stipulated to be from
March 14, 1990 through May 20, 1990.
Healing period benefits may be characterized as that
period during which there is a reasonable expectation of
improvement of a disabling condition and ends when maximum
medical improvement is reached. Armstrong Tire & Rubber Co.
v. Kubli, Iowa App., 312 N.W.2d 60, 65 (1981). In
discussing the concept of healing period as contemplated by
Iowa Code section 85.34(1) (1991), the Kubli court observed
that recuperation refers to that condition in which healing
is complete and the extent of the disability can be
determined. Kubli, 312 N.W.2d at 65. The healing period
generally terminates at the time the attending physician
determines that the employee has recovered as far as
possible from the effects of the injury. Kubli, 312 N.W.2d
at 65. When a permanent rating is given, it indicates that
the physician does not expect the claimant to improve and
Page 8
this conclusion meets the criteria of Iowa Code section
85.34(1) and Thomas v. William Knudson & Sons, Inc., 349
N.W.2d 124, 126 (Ia. Ct. App. 1984). the finding of a
termination of healing period necessarily precludes the
discussion of the running award. Hoskins v. Quaker Oats,
Vol 2. No. 1 Iowa Industrial Commissioner Decisions, 181,
185 (App. 1985). Since the healing period contemplates an
inability to work, a healing period cannot start until
claimant leaves work. This is true even if claimant is
experiencing symptoms on the job but does not leave work for
a variety of reasons. Boyd v. Western Home, File number
890207 (Iowa Industrial Commissioner App. June 26, 1991).
The final issue to be determined is whether claimant is
entitled to medical benefits under Iowa Code section 85.27.
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).
Claimant has the burden of proving that the fees charged for
such services are reasonable. Anderson v. High Rise Constr.
Specialists, Inc., File No. 850096 (App. 1990).
Claimant is not entitled to reimbursement for medical
bills unless claimant shows they were paid from claimant's
funds. See Caylor v. Employers Mut. Casualty Co., 337
N.W.2d 890 (Iowa Ct. App. 1983).
When a designated physician refers a patient to another
physician, that physician acts as the defendant employer's
agent. Permission for the referral from defendants is not
necessary. Kittrell v. Allen Memorial Hospital,
Thirty-fourth Biennial Report of the Industrial Commissioner
164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
An employer's right to select the provider of medical
treatment to an injured worker does not include the right to
determine how an injured worker should be diagnosed,
evaluated, treated or other matters of professional medical
judgment. Assmann v. Blue Star Foods, Inc., File No. 866389
(Declaratory Ruling, May 18, 1988).
Defendants argue that the medical charges which
claimant has submitted are not causally related to the March
13, 1990 work injury and were not authorized by defendants.
As previously noted, the employer has the right to choose
the provider of care, except where the employer has denied
liability for the injury. Defendants have denied liability
throughout these proceedings. Since it has been determined
that claimant's injury arose out of and in the course of
employment with employer and his symptoms are causally
connected to his work injury, the medical expenses incurred
Page 9
to treat his injury are compensable. Claimant's outstanding
medical bills total $4,885.92. (Ex. L, p. 1). Therefore
defendants shall pay to claimant the costs of all medical
and mileage expenses incurred for treatment of his March
1990 work injury.
ORDER
THEREFORE IT IS ORDERED:
That defendants pay to claimant healing period benefits
at the rate of two hundred thirty-four and 83/100 dollars
($234.83) per week for the period from March 14, 1990
through May 20, 1990.
That defendants pay to claimant fifty (50) weeks of
permanent partial disability benefits at the rate of two
hundred thirty-four and 83/100 dollars ($234.83) per week
commencing May 21, 1990.
That defendants pay claimant all medical and mileage
expenses incurred for treatment of his injury on March 13,
1990.
That defendants receive credit under Iowa Code section
85.38(2) for previously payments made under a
non-occupational group plan.
That defendants pay all costs pursuant to rule 343 IAC
4.33.
That defendants receive credit for any benefits
previously paid.
That defendants pay accrued amounts in a lump sum.
That defendants pay interest pursuant to Iowa Code
section 85.30.
That defendants file claim activity reports as required
the Agency.
Signed and filed this ____ day of August, 1992.
________________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr David H Sivright Jr
Ms Martha Shaff
Attorneys at Law
408 South Second Street
Clinton Iowa 52732
Page 10
Mr Greg A Egbers
Attorney at Law
600 Union Arcade Building
111 East Third Street
Davenport Iowa 52801-1596
5-1100; 5-1108; 5-1803; 5-2500
Filed August 18, 1992
JEAN M. INGRASSIA
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JOHN D. LAWRENCE,
Claimant, File No. 943913
vs. A R B I T R A T I O N
INTERNATIONAL PAPER COMPANY, D E C I S I O N
Employer,
Self-Insured,
Defendant.
___________________________________________________________
5-1100
Claimant found to have sustained a work-related injury to
his back although he could not cite to a special incident,
accident or unusual occurrence. Claimant worked an eight
hour shift driving a forklift and shortly thereafter
experienced severe and intractable back pain. Claimant was
relatively asymptomatic prior to experiencing symptoms on
March 13, 1990 and there were no intervening factors, other
than work activity, which could have caused his back
problems.
5-1108
Unrefuted medical evidence from claimant's treating
physician causally connects claimant's back problems to his
long history of operating a forklift. Therefore, claimant's
symptoms found to be causally connected to his work
activity.
5-1803
Claimant found entitled to 50 weeks of permanent partial
disability benefits. Claimant a younger individual (29
years), high school graduate, and five percent functional
impairment rating, determined to be ten percent permanently
impaired. Claimant returned to work two weeks after his
injury and earns more now than he did at the time of his
injury. Claimant continues to operate a forklift which
requires no manual lifting. Claimant's treating physician
restricted him to 40 pounds lifting and 15-20 pounds
repetitive lifting. Claimant has a loss of earning
capacity.
5-2500
Defendants have denied liability throughout. Since
Page 2
claimant's injury found to arise out of and in the course of
his employment with employer, medical charges for treatment
of his injury were found causally related to the injury and,
although not authorized by defendants, compensable. The
employer has to right to choose the provider of care, except
where the employer has denied liability for the injury.
Iowa Code section 85.27.