BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ MICHAEL KNOX, : : Claimant, : : vs. : : File Nos. 943985/943986 SYSTEM PARKING, INC., : : A P P E A L Employer, : : D E C I S I O N and : : CNA 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 March 17, 1994 is affirmed and is adopted as the final agency action in this case with the following additional analysis: This agency does not have jurisdiction over claimant's alleged injury, as the injury is based on racial discrimination. See Miller v. Marshalltown Community School District, Appeal Decision, September 12, 1994. In addition, even if the agency had jurisdiction, the deputy's findings of fact and conclusions of law are correct in determining that claimant has failed to carry his burden of proof that he underwent stress in the workplace greater than that experienced by all employees. The circumstances and events alleged by claimant, both those allegedly involving racial discrimination and those involving other alleged "unfair" treatment, do not rise to the level necessary to satisfy the "legal test" under Dunlavey v. Economy Fire and Casualty Co., Appeal Decision, October 26, 1992. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of October, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Page 2 Copies To: Mr. Steven Jayne Attorney at Law 5835 Grand Ave., Ste 201 Des Moines, Iowa 50312 Ms. Coreen K. Bezdicek Mr. Roy M. Irish Attorneys at Law 729 Insurance Exchange Bldg. Des Moines, Iowa 50309 2301; 2204 Filed October 21, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ : MICHAEL KNOX, : : Claimant, : : vs. : : File Nos. 943985/943986 SYSTEM PARKING, INC., : : A P P E A L Employer, : : D E C I S I O N and : : CNA INSURANCE, : : Insurance Carrier, : Defendants. : _________________________________________________________________ 2301; 2204 Claimant alleged that racial discrimination had caused him mental stress. Held on appeal that this agency lacks jurisdiction over claims based on racial discrimination, citing Miller v. Marshalltown Community School District, Appeal Decision, September 12, 1994. Also held that even if the agency had jurisdiction, claimant did not carry his burden to meet both the medical and legal tests for a mental-mental injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ MICHAEL KNOX, : : Claimant, : : vs. : : File No. 943985 & 943986 SYSTEM PARKING, INC., : A R B I T R A T I O N Employer, : D E C I S I O N and : : CNA INSURANCE, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Michael Knox, claimant, against System Parking, Inc., employer, and CNA Insurance Company, insurance carrier, defendants, to recover benefits under the Iowa Workers' Compensation Act as a result of injuries sustained on November 1, 1989 and May 7, 1990. This matter came on for hearing before the undersigned deputy industrial commissioner on February 23, 1994, in Des Moines, Iowa. The record was considered fully submitted at the close of the hearing. The claimant was present and testified. Also present and testifying were Estillio Johnson, John Goode and Floyd Faber. The documentary evidence identified in the record consists of joint exhibits 1 through 9. ISSUES Pursuant to the hearing report and order approving same dated February 23, 1994, the parties have presented the following issues for resolution: . Whether claimant sustained injuries on November 1, 1989 and May 7, 1990 which arose out of and in the course of employment; . Whether claimant's May 7, 1990 injury resulted in temporary disability from May 7, 1990 through January 16, 1992; . Whether claimant's May 7, 1990 injury resulted in permanent disability and, if so, the extent thereof, and . Whether claimant is entitled to certain medical Page 2 benefits under Iowa Code section 85.27. Page 3 FINDINGS OF FACT The undersigned has carefully considered all the testimony given at the hearing, arguments made, evidence contained in the exhibits herein, and makes the following findings: Claimant was born on February 15, 1943, and has a GED certificate. He completed two semesters at community college. His past work was as a security officer, desk clerk and welder. He commenced working for employer in June of 1984 as a cashier in an enclosed parking garage on Fourth and Grand Avenue in Des Moines, Iowa. Claimant alleges a psychological injury as a consequence of not being promoted due to racial discrimination by management. Claimant alleges that the cumulative effect of the mental stimulus associated with his employment rendered him disabled on or about May 7, 1990, the date he was advised by his psychiatrist to discontinue his employment with employer. (exhibit 1-1). Claimant contends that arbitrary and/or unreasonable employment practices directed toward him may have been motivated, in whole or in part, by racial discrimination on the part of his supervisors. Claimant is a black male adult who was employed by employer from June 1984 through May 7, 1990. He worked the midnight shift which ended at 8 a.m. He earned $7.80 an hour. In addition to serving as cashier, he assisted the manager by counting tickets and balancing them against green sheets. In addition, he emptied trash cans, mopped the floors and prepared the cashier's tray for the next day. Since claimant was confined to an enclosed booth and worked a shift that had minimal traffic, he was allowed to pass his time by watching television, reading and playing chess. Claimant testified that in 1987, he requested a transfer from the Fourth and Grand garage because he had a conflict with Herman Reeve, the manager at that location. Mike Brice, the general manager at that time, intervened in the conflict. He was rewarded with a pay increase in recognition of the extra work he was performing. Claimant testified that Mr. Brice also told him that he was in line for a managerial position. In a deposition taken of Mr. Brice on December 13, 1993, Mr. Brice emphatically denied that he ever promised claimant or in anyway indicated to him that he was in line for a managerial position. (ex. 9-8). From the spring of 1987 through the fall of 1989, John Goode was the manager of the Fourth and Grand garage and supervised claimant. In November 1989, Mr. Goode replaced Mr. Brice as general manager and moved to the Fifth and Keo facility. At the same time, Floyd Faber was made manager of the Fourth and Grand garage. Claimant testified that he may have been passed over for promotion because of his race and recited various incidents of what he perceived to be racial discriminatory behavior by management. Both Mr. Goode and Mr. Faber testified. They denied claimant's contentions. Mr. Brice testified that race was not a factor in promoting either Mr. Goode or Mr. Faber. (ex. 9-13). Mr. Brice Page 4 testified that John Goode was promoted by working his way up through the system. He had been a manager and ran the maintenance division for a period of time. Mr. Faber, like Mr. Goode, had worked for the previous two operators who managed the city parking garages for a number of years prior to System Parking taking them over. He is a college graduate and had prior managerial experience. Mr. Brice felt that both of these men were more qualified for the positions to which they were promoted than was claimant. Claimant testified that he continued to work and perform his usual duties after November 1989 because he was promised a raise by Mr. Goode. He stated that he was also told that other managerial positions would open and that he was next in line for promotion. On April 3, 1990, claimant presented to Hector W. Cavallin, M.D., psychiatrist, with complaints of extreme stress. He related this stress to being passed over for a management position which he stated had been repeatedly promised to him. Despite the fact that he had been hospitalized in the mental wing at Broadlawns Hospital in Des Moines, Iowa, in 1962, claimant gave Dr. Cavallin no history of prior mental illness. He also related that he may be the victim of racial discrimination since all of the people in management where white. Dr. Cavallin advised him to consult an attorney regarding his possible legal claims and to make another appointment with him sometime thereafter. At this time he diagnosed acute reaction to stress. (ex. 2-15). According to Dr. Cavallin he next saw claimant on May 29, 1990. However, on May 7, 1990, he wrote, without explanation that claimant was suffering from an acute reaction to stress and was totally disabled and unable to participate in any working situation. (ex. 1-1). On May 16, 1990, Dr. Cavallin wrote to claimant's attorney that in his opinion, claimant's traumatic disorder was related to his employment duties with System Parking. (ex. 1-2). Claimant then began a regular course of one-half hour psychotherapy sessions with Dr. Cavallin which has continued through the present time with the exception of two interruptions for hospitalizations in June 1990 and October 1991. (ex. 1, pages 3-17; ex. 2-6). Claimant was hospitalized at Iowa Lutheran Hospital from June 15 through June 25, 1990. He was admitted after reportedly having difficulty sleeping and having nightmares of killing people at work. During the course of hospitalization, claimant completed an MMPI on June 19, 1990. It was determined that the profile was technically invalid in view of the high number of unusual symptoms endorsed. The results were discussed with claimant and he was given the instrument to complete again which he did on June 22, 1990. The second profile was again determined to be invalid, the elevations on this profile being inflated to a much greater degree than was the case on the first profile. Nevertheless, although of questionable technical validity, it was felt that the profile was consistent with Page 5 the claimant's clinical presentation of depression, interpersonal distrust and bizarre mentation. Claimant related his emotional problems to being passed over for a promotion. (ex. 6, pp. 1-9). Claimant was admitted to Iowa Lutheran Hospital on October 16, 1991. At this time he presented with increasing auditory hallucinations and paranoid delusions. At the time of discharge on October 19, 1991, it was determined that he was suffering from toxic psychosis, chronic depression, gastritis and disequilibrium secondary to medication. (ex. 1, pp. 10-14). At the hearing, claimant blamed the aforementioned episode on medication prescribed by Michael J. Taylor, M.D. Claimant saw Dr. Taylor at the request of defendants on November 29, 1990. At that time, Dr. Taylor diagnosed major depressive disorder which he later explained does not imply any particular degree of severity. However, he felt that claimant's disorder was severe. It was his opinion that the depression was caused, or at least aggravated, by claimant's perception that he had been passed over for a promotion which he believed he deserved and which he believed he was told he would get. At no time, did claimant mention to Dr. Taylor that his failure to be promoted was racially motivated. (ex. 4). CONCLUSIONS OF LAW The issue to be determined is whether claimant has established a mental injury arising out of and in the course of his employment which meets the standards of liability under Iowa law. Claimant alleges that the cumulative effect of the mental stimulus associated with his employment rendered him disabled on or about May 7, 1990, when he was advised by Dr. Cavallin to discontinue his employment. 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). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within Page 6 the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). The standard for determining whether a mental injury arose out of and in the course of employment was discussed in Ohnemus v. John Deere Davenport Works, (Appeal Decision, February 26, 1990). In order to prevail claimant must prove that he suffered a non-traumatically caused mental injury that arose out of and in the course of his employment. This matter deals with what is referred to as a mental-mental injury and does not deal with a mental condition caused by physical trauma or physical condition caused by mental stimulus. The supreme court in Schreckengast v. Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985), recognized that issues of causation can involve either causation in fact or legal causation. As stated in footnote 3 at 369 N.W.2d 810: We have recognized that in both civil and criminal actions causation in fact involves whether a particular event in fact caused certain consequences to occur. Legal causation presents a question of whether the policy of the law will extend responsibility to those consequences which have in fact been produced by that event. State v. Marti, 290 N.W.2d 570, 584-85 (Iowa 1980). Causation in fact presents an issue of fact while legal causation presents an issue of law. Id. That language was the basis of the language in Desgranges v. Dept of Human Services, (Appeal Decision, August 19, 1988) which discussed that there must be both medical and legal causation for a nontraumatic mental injury to arise out of and in the course of employment. While Desgranges used the term medical causation the concept involved was factual causation. Therefore, in this matter it is necessary for two issues to be resolved before finding an injury arising out of and in the course of employment - factual and legal causation. Proving the factual existence of an injury may be accomplished by either expert testimony or nonexpert testimony. .... Page 7 Not only must claimant prove that his work was the factual cause of his mental injury, claimant must also prove that the legal cause of his injury was his work. In order to prove this legal causation claimant must prove that his temporary mental condition "resulted from a situation of greater dimensions than the day to day mental stresses and tensions which all employees must experience." Swiss Colony v. Department of ICAR, 240 N.W.2d 128, 130 (Wisc. 1976). The Iowa Supreme Court has not yet determined whether stress, without accompanying physical injury, may constitute legal causation. However, this agency has consistently utilized the "Wisconsin standard" established in Swiss Colony, 240 N.W.2d 128, in determining whether a mental-mental injury may be compensable. See, e.g., Render v. Iowa Department of Human Services, (App. Dec. April 29, 1988); Kostelac v. Feldman's Inc., (App. Dec. June 13, 1990); Kelly v. Sheffield Care Center, (App. Dec. October 31, 1991); and Ohnemus and Desgranges. Dr. Cavallin, claimant's primary treating psychiatrist, opined on numerous occasions that claimant's acute reaction to stress which evolved into a major depressive disorder was caused by his work environment specifically a climate created by his supervisors wherein he was denied a promotion because of his race. Dr. Cavallin admitted that his opinions were based only on the history given to him either by claimant or claimant's attorney. (ex. 3, pp. 27-28, 31). On the other hand, Dr. Taylor felt that claimant experienced no unusual stress which may have precipitated his subsequent difficulties. (ex. 4,-1). Medical causation is strictly an examination into the cause and effect relationship between the stressors and tensions at work and the mental difficulties. If the medical causation issue is resolved in favor of claimant, legal causation is then examined. The Iowa Supreme Court has held that medical causation cannot be met and no workers' compensation benefits can be recovered when "employment merely provided a stage for the nervous injury." Newman v. John Deere Ottumwa Works of Deere and Co., 372 N.W.2d 199, 203 (1985). Medical causation fails when it is shown that claimant had a misperception of the extent of work stresses in the work place. McAndrew v. Deere and Co. Davenport Works, file numbers 936569, 735429 (Review-Reopen Dec. Oct. 15, 1991). In McAndrew, the deputy industrial commissioner held that claimant's misperception regarding the employer's safety rules and the fact that claimant felt the company had a vendetta against him and were out to kill him were unfounded based on the evidence at the hearing. Id. at pp. 9-10. It is unfortunate that claimant's own perception of his work environment appears to be so distorted that he reacted in a depressive manner. Claimant's report of discrimination is much less persuasive than the combined testiony of John Page 8 Goode and Floyd Faber. Nevertheless, claimant is not entitled to workers' compensation benefits if the so-called stressors in his life are not real. "An imaginary event cannot be a proximate cause of an injury." Newman, 373 N.W.2d at 202. Claimant's internal perceptions must be consistent with external reality before those perceptions can form the basis of a compensable work-related injury. Claimant's beliefs, no matter how sincerely held, are inadequate to show a causal relationship between his mental condition and his employment. After carefully considering all of the evidence in this case, including the testimony received at the hearing, the greater weight of the evidence does not support claimant's claim that his mental condition was caused by his work environment. Even if claimant proved by a preponderance of the evidence that his work environment was the factual cause of his mental disorder, he must also prove that the legal cause of his mental problems was his work. Legal causation involves a determination of whether the work stressors and tensions, when viewed objectively and not as perceived by claimant, were out of the ordinary from the countless emotional strains and differences that employees encounter daily without serious mental injury. Swiss Colony, N.W.2d at 130. To meet the legal causation test, claimant must show that he encountered a work situation of greater dimensions than the day-to-day mental stressors which all employees must experience. Rocher v. Dept. of Community Corrections, file number 910537 (App. Dec. June 17, 1993). Claimant's uncorroborated and disputed testimony alleges that he was promised a promotion from his cashier position to that of a manager. When Floyd Faber was appointed manager in November 1989, claimant felt that he had been betrayed by management. Nevertheless, claimant continued to work until May 1990 when Dr. Cavallin, who had only seen him on one occasion took him off work. Claimant claims that after being with the company for five years and performing extra duties during the course of his job as a cashier, he merited a promotion to management. Instead, the position was given to a younger individual allegedly because management would not admit blacks into their ranks. When comparing claimant's credentials to those of Floyd Faber, claimant's expectations appear unrealistic. Mr. Faber was a college graduate who had some previous management experience. Claimant is a high school graduate without demonstrated comparable management experience. Qualifications rather than race would appear to be the motivating factor behind promoting Mr. Faber rather than claimant. In any event, claimant must show that he encountered a work situation of greater dimensions than the day-to-day mental stressors which all employees must experience. All work has stressful components including personality clashes Page 9 with coworkers and supervisors, unpleasant tasks, being undervalued or not valued by management, and being passed over for promotions. Neither companies nor managers, no matter how good their intentions, can eliminate employee stress. The greater weight of the evidence does not establish that claimant's work stress was out of the ordinary or of greater dimensions than the day-to-day mental stressors and tensions which all employees must experience. The evidence before the undersigned does not support claimant's contentions that he was denied a promotion because of his race. Claimant failed to show any discriminatory conduct on the part of employer. Claimant was not promoted because he was not the best qualified person for the job. Because claimant has failed to establish both factual and legal causation, this case must be resolved in favor of defendants. ORDER THEREFORE IT IS ORDERED: Claimant shall take nothing from these proceedings. The parties shall pay their own costs. Signed and filed this ________ day of March, 1994. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Page 10 Copies to: Mr. Steven Jayne Attorney at Law 5835 Grand Ave STE 201 Des Moines, Iowa 50312 Ms. Coreen K. Bezdicek Mr. Roy Irish Mr. Charles Cutler Mr. Jeffrey Baker Attorneys at Law 729 Insurance Exchange Bldg Des Moines, Iowa 50309 2204 Filed March 17, 1994 Jean M. Ingrassia BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ MICHAEL KNOX, Claimant, vs. File No. 943985 & 943986 SYSTEM PARKING, INC., A R B I T R A T I O N Employer, D E C I S I O N and CNA INSURANCE, Insurance Carrier, Defendants. ------------------------------------------------------------ 2204 In a mental-mental stress case, claimant failed to prove both medical and legal causation since his perceptions were not reliable and the work conditions were not of greater dimensions than the day-to-day stressors which all employees experience. Claimant, a black male, claimed that his mental condition was caused by his work environment. He perceived that he was not promoted to parking garage manager because of management's racial discrimination policies. Claimant's internal perceptions found to be inconsistent with the external reality. An imaginary event cannot be the proximate cause of any injury. Newman v. John Deere Ottumwa Works of Deere and Co., 373 N.W.2d 199, 203 (Iowa 1985). Page 1 before the iowa industrial commissioner ____________________________________________________________ : LYNN JEFFRESS, : : Claimant, : : vs. : : File No. 944019 FIRESTONE TIRE AND RUBBER, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Lynn Jeffress, claimant, against Firestone Tire and Rubber Company, employer, and Cigna Insurance Companies, insurance carrier, for benefits as the result of an alleged injury which occurred on November 13, 1989. A hearing was held in Des Moines, Iowa, on May 19, 1992, and the case was fully submitted at the close of the hearing. Claimant was represented by Tom L. Drew. Defendants were represented by Anne L. Clark. The record consists of the testimony of Lynn Jeffress, claimant; joint exhibit 1 with subparts A, B and C and joint exhibit 2 with subparts A, B and C. stipulations At the time of the hearing claimant withdrew the issue of penalty benefits and defendants withdrew the issue of credit for nonoccupational group health plan benefits, both of which were designated as hearing issues on the hearing assignment order. issues The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on November 13, 1989, to her right eye which arose out of and in the course of employment with employer; Whether the injury was the cause of permanent disability; Whether claimant is entitled to permanent disability benefits; and if so, the extent of benefits to which she is entitled; Page 2 Whether, in the event of an award, claimant is entitled to benefits pursuant to Iowa Code section 85.34(p) or whether claimant is entitled to benefits under Iowa Code section 85.34(2)(q); and Whether claimant is entitled to medical benefits and medical mileage. findings of fact injury It is determined that claimant sustained an injury to her right eye on November 13, 1989, which arose out of and in the course of employment with employer. Claimant is a five-year employee of employer. She testified that on November 13, 1989, an air hose caused dust to get in her eyes. A short time later she felt like something was scratching in her right eye. Claimant testified that the plant nurse found something imbedded in her cornea and ran a Q-tip over it several times trying to extract it, but it would not come out. The Q-tip procedure caused claimant a great deal of pain. The company medical record shows that on November 13, 1989, claimant complained of a foreign body in the right eye which was located just outside the pupil at nine o'clock. The note indicates that the nurse was unable to remove it with a wet Q-tip. Claimant was referred to Louis H. Fingerman, M.D., an ophthalmologist (exhibit 1, page 22). Dr. Fingerman recorded on November 13, 1989, that at about 3 a.m. claimant was working with an air hose when a foreign particle got into her right eye. He removed a tiny nonmetallic foreign body imbedded in the right cornea (ex. 1, p. 5). On October 14, 1989, James L. Blessman, M.D., the plant physician, saw claimant and noted that the cornea was clear, but that she had multiple flecks of rubber material on both the upper and lower lid of both eyes (ex. 1, p. 18). Claimant testified that she continued to have blurring, irritation, watering, and soreness and returned to employer's medical department on November 16, 1989, and saw Dr. Blessman. He found a dendritic pattern in her right eye. He sent claimant to the ophthalmologist to determine whether this was a herpes simplex virus or simply the residuals of her previous foreign body (ex. 1, p. 18). On November 16, 1989, claimant saw Michael J. Versackas, M.D., an ophthalmologist and an associate of Dr. Fingerman, who stated that the small dendritic figures at the site of the foreign body removal were compatible with a herpetic keratitis, which he said was evidently triggered by the trauma of the injury. She continued to have light sensitivity (ex. 1, p. 5). Dr. Versackas continued to see claimant on November 20, 1989; November 22, 1989; November 25, 1989; December 1, 1989; and December 5, 1989. On December 13, 1989, he formed the impression that claimant Page 3 had herpetic keratouveitis (ex. 1, p. 6). He saw claimant again on January 8, 1990. On January 22, 1990, he stated that this was a workers' compensation injury (ex. 1, p. 6). He continued to see claimant on January 29, 1990; February 12, 1990 and February 20, 1990. On March 26, 1990, he recorded in his notes: I sent a letter to Dr. Blessman, the medical director at Firestone, indicating that I feel that this is a workman's comp injury because of the fact that it was triggered by a workman's comp injury, although I discussed with the patient the fact that this could only be triggered in a susceptible person, not in everyone. (exhibit 1, page 6) Dr. Versackas continued to see claimant on April 9, 1990, and May 30, 1990. On June 13, 1990, he noted that Dr. Blessman indicated that although it is possible for trauma to trigger the infection, he did not feel it should be considered a workers' compensation injury (ex. 1, p. 7). Dr. Versackas continued to see claimant on July 13, 1990, and July 20, 1990. On July 27, 1990, he noted that the company had decided to call this a workers' compensation injury and to cover the problems (ex. 1, p. 7). He continued to see claimant on July 13, 1990; July 20, 1990; July 27, 1990; August 10, 1990; and September 10, 1990. On September 13, 1990, he stated that Dr. Blessman, medical director from Firestone, called on September 13, 1990, and questioned how much of the injury could be workers' compensation and how much was related to an underlying herpetic condition. Dr. Versackas noted, "We discussed the fact that I felt that the precipitating event based on the history seemed to have [been] workmen's comp related but this was admittedly a long-term problem that could last for months or years and determining how much was workmen's comp and how much wasn't was something I had great difficulty in doing." (ex. 1, p. 7). On October 11, 1990, Dr. Versackas noted that claimant had central corneal scarring. The doctor saw claimant on November 10, 1990; November 26, 1990; and February 13, 1990. On April 9, 1991, Dr. Versackas stated that the corneal scarring, which was secondary to her previous keratitis might fade over time (ex. 1, p. 9). Dr. Blessman stated in a memorandum dated September 28, 1990, that there is a question as to whether this was a primary herpes keratitis or a recurrence. Irrespective of whether it was primary or a recurrence, the facts remain (1) that claimant was asymptomatic prior to this injury where she received a foreign body in her eye at work and (2) that keratitis developed at the site of where the foreign body was removed. The record is silent as to whether the experience of the nurse rubbing a Q-tip over the site of the imbedded foreign object caused or contributed to either the scarring Page 4 or the keratitis, but the safest practice is to have only an ophthalmologist remove a foreign body from an eye. Dr. Blessman speculated that if the infection was primary, it was probably smoldering in her eye even before the foreign body because the incubation period is somewhere around seven to ten days. Dr. Blessman then makes a hearsay statement that Dr. Versackas told him that claimant had likely been having recurrent episodes of herpes keratitis in her eye that were relatively asymptomatic until she got the foreign body that served as an irritant to the eye and set up the increased inflammation and symptoms. With respect to a primary infection, even if the sheer speculation of Dr. Blessman is accepted that herpes keratitis was in a seven to ten-day incubation state, nevertheless, the evidence from the treating physician, Dr. Versackas, established that the foreign body which entered claimant's eye at work was the precipitating factor which caused all of claimant's ensuing problems. With respect to a recurrence, Dr. Blessman made a hearsay statement that Dr. Versackas told him that claimant was having recurrent episodes of herpes keratitis. First of all, it cannot be found in the evidence from Dr. Versackas that he ever made such a statement. There is no evidence that claimant was having recurrent episodes of herpes keratitis prior to this injury. Furthermore, the testimony of Dr. Versackas established that the foreign body in the eye at work triggered the trauma in claimant's right eye. Claimant denied that she had any similar problems prior to this injury. Employer's medical records show that on March 31, 1989, prior to this injury, claimant complained of something in her right eye and a foreign body was seen at the center cornea which the plant nurse was unable to remove (ex. 1, p. 20). On that occasion claimant was sent to Dr. Fingerman and he found a metal foreign body with an associated rust ring on the central cornea which he treated and removed (ex. 1, p. 5). Claimant testified that she had no further troubles after this incident. She did not miss any work. She had no blurring or other visual problems. Prior to that the company medical records show that on June 24, 1988, claimant complained of something in her right eye, no foreign body was seen, the cornea was clear and the eye was flushed (ex. 1, p. 19). Even assuming claimant had a preexisting eye condition which was latent or which predisposed the herpes keratitis and even assuming that claimant was susceptible to herpes keratitis, nevertheless, it was the foreign body in the right eye on November 13, 1989, which precipitated all of the treatment which followed after that incident. An employer takes an employee is as is condition and, therefore, takes the employee subject to any active or dormant health impairments. Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, (2d ed.) section 4-2, page 23. In Iowa, the workers' compensation statute prescribes no standard of fitness to which the employee must conform Page 5 and compensation is not based upon any implied warranty of perfect health or of immunity from latent and unknown tendencies to disease, which may be develop into positive ailments, if incited to activity through any cause originating in the performance of the work for which the employee is hired. Hanson v. Dickinson, 188 Iowa 728, 732, 176 N.W. 823, 824 (1920). A preexisting condition which is aggravated or accelerated or lighted up by employment activity is deemed a personal injury under the Iowa Workers' Compensation Law. Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Jacques v. Farmers Lumber & Supply Co,, 242 Iowa 548, 47 N.W.2d 236 (1951); Fraze v. McClelland Co., 200 Iowa 944, 205 N.W. 737 (1925); Farrow v. What Cheer Clay Prod. Co., 198 Iowa 922, 200 N.W.625 (1924). Dr. Blessman further related that he visited with two other eye specialists in Des Moines, specifically, Dr. Silberman and Dr. Rullan, and it was their opinion that herpes keratitis was due to an infection and would not be particularly related to the foreign body or injury that occurred here at work, but was more likely a more general medical disease (ex. 1, p. 17). The hearsay statements of Dr. Silberman and Dr. Rullan via the route of Dr. Blessman on the ultimate fact of causal connection to be decided in this case is unacceptable evidence. Furthermore, since Dr. Blessman is the plant physician, these hearsay remarks may well be self-serving. If defendants wanted the evidence of Dr. Silberman and Dr. Rullan considered in the determination of the issues in this case, they should have obtained their statements firsthand by either written report or deposition rather than hearsay statements from the employer's medical director. Dr. Blessman also stated that Dr. Versackas told him, another hearsay statement, that claimant's future long-term care would not be considered work related (ex. 1, p. 17), however, Dr. Versackas himself stated that he was not able to make such a determination because of the great difficulty in doing so (ex. 1, p. 7). Dr. Blessman added one more hearsay statement by stating that it was Dr. Versackas' definite opinion that the patient had recurrent herpes keratitis in the past and the foreign body simply flared it up and made it more symptomatic temporarily (ex. 1, p. 17). A close examination of all of Dr. Versackas' office notes and reports does not support this statement of Dr. Blessman. Furthermore, even if the statement was true, defendants are liable for an aggravation of a preexisting condition even if that preexisting condition originates apart from claimant's employment. Lundquist v. Firestone Tire and Rubber Co., IAWC 371 (App. Dec. 1989). An employee is not entitled to compensation for the result of a preexisting injury or disease, but when the preexisting injury or disease is aggravated, accelerated, worsened, lighted up, then defendants are liable to the Page 6 extent that the injury or aggravation of the preexisting condition causes medical treatment, time off work or permanent disability. Yeager v. Firestone Tire and Rubber Co., 253 Iowa 369 112 N.W.2d 299 (1961). Claimant testified that she had no knowledge of any previous herpes keratitis nor had she experienced any similar symptoms prior to the injury of November 13, 1989. Claimant's two prior right eye problems appear to have occurred at work and were treated by the plant medical department or Dr. Fingerman on June 24, 1988, and March 31, 1989 (ex. 1, pp. 20-21) rather than independent of her employment. J.D. Barker, O.D., a doctor of optometry, stated that he had seen claimant on December 4, 1987, at which time she had 20/20 vision and no scars on her cornea. He performed and independent evaluation for claimant on September 12, 1991, and found a dense corneal scar, triangular in shape with the base at the nine o'clock position and the tip of the triangle approaching on the central cornea. Dr. Baker stated: ...Because the only significant event in her history since 1987 was the injury and subsequent dendritic ulcer in the right eye, I would conclude that her scarring and decrease in vision is a direct result of her accident and subsequent scarring. It has been well established in literature that dendritic ulcers can be triggered by traumatic injuries to the eye. The scarring left on Lynn's cornea will likely result in a permanent vision loss. (exhibit 1, pages 10-11) On November 16, 1989, Dr. Versackas said that the small dendritis figures at the site of the foreign body removal were compatible with a herpetic keratitis which was evidently triggered by the trauma of the injury (ex. 1, p. 5). On January 2, 1990, he said that this was a workers' compensation injury (ex. 1, p. 6). Dr. Versackas wrote to Dr. Blessman on March 26, 1990, that this injury was the cause of claimant's injury and disability. Dr. Versackas stated: This letter is to certify that I have examined Lynn Jeffress on numerous occasions in my office. On November 16, 1989, the patient was noted to have herpetic keratitis that seemed to have been triggered by the trauma of a work-related foreign body 3 days earlier. It is known that trauma can trigger herpetic keratitis in susceptible individuals. For this reason, I feel that the patient's multiple exams since that time should be considered workman's compensation. (exhibit 1, page 2) On September 13, 1990, Dr. Versackas clearly told Dr. Page 7 Blessman that the precipitating event made this a workers' compensation claim in his opinion (ex. 1, p. 7). Wherefore, it is determined that claimant did sustain an injury to her right eye on November 13, 1989, which arose out of and in the course of employment with employer. The direct, firsthand, clear, unequivocal, and convincing statements of Dr. Versackas and Dr. Barker are preferred over the speculative remarks and hearsay statements of Dr. Blessman. Dr. Versackas was the treating physician. He saw claimant on numerous occasions. He was responsible for the ultimate success or failure of his treatment. Dr. Blessman, on the contrary, was the plant physician, with a decided interest in the outcome of the case who appeared to be building a construction of the case to bring about a negotiated settlement. Rather than an independent evaluator he appears to be a partisan advocate. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). causal connection-entitlement-permanent disability It is determined that the injury was the cause of permanent disability. This is established by the testimony of Dr. Versackas and Dr. Barker. It is determined that claimant has sustained a 10 percent permanent impairment and disability to her right eye. Dr. Barker testified that claimant's vision in the right eye had been decreased since the injury and subsequent bout with dendritic ulcer and iritis and that her best corrected vision was 20/25 in the right eye. He said that her corneal opacity has decreased her vision approximately 5 to 10 percent so that she now has 90-95 percent of normal vision in her right eye (ex. 1, p. 10). Dr. Versackas opined on April 9, 1991, that claimant's best corrected visual acuity in her right eye was 20/30 and that her right eye still demonstrated the corneal scarring that was a result of her previous corneal infection (ex. 1, p. 1). It should be noted that this infection occurred at the site where the foreign body was removed. Dr. Versackas concluded, "Your visual acuity of 20/30 amounts to 90 percent efficiency of vision." (ex. 1, p. 1). Wherefore, it is determined that claimant has sustained a 10 percent permanent loss of vision in her right eye based upon the direct testimony of Dr. Versackas and Dr. Barker. Dr. Versackas' remark that the scar may fade over time is only a possibility, not a probability, and is speculative at best. IOWA CODE SECTION 85.34(p) - IOWA CODE SECTION 85.34(2)(q) It is determined that claimant's loss is to be compensated for under Iowa Code section 85.34(2)(p) which states that the permanent partial disability compensation shall be 140 weeks for the loss of an eye. Therefore, Page 8 claimant is entitled to 10 percent of 140 weeks which is 14 weeks of permanent partial disability benefits. Claimant is not entitled to benefits under Iowa Code section 85.34(2)(q) because that section, which allows 200 weeks of benefits, requires, "...the other eye having been lost prior to the injury..." It is difficult to state that the left eye has been lost when the left eye vision is correctable to 20/20 as stated by Dr. Versackas (ex. 1, p. 1). Claimant contends that the code section does not require a complete loss of the other eye. It is not necessary to determine that point in this decision for the reason that claimant's vision is correctable to 20/20 in the left eye and under any definition it is impossible to say that the vision of the left eye has been lost, whereas, in the right eye a definite permanent loss of vision was established. medical benefits It is determined that the injury was the cause of all of the treatment for claimant's right eye and more specifically, claimant is entitled to all of the treatment of Dr. Versackas, and in particular, the remaining balance of $186 (ex. 2, pp. 26-27). Likewise, claimant is entitled to $69.93 in mileage to see Dr. Versackas at the rate of 21 cents per mile for 330 miles as illustrated in exhibit 2, page 28. conclusions of law Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That claimant sustained the burden of proof by a preponderance of the evidence that she sustained an injury to her right eye on November 13, 1989, which arose out of and in the course of employment with employer. Iowa Code section 85.3(1); McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). That claimant sustained the burden of proof by a preponderance of the evidence that the injury was the cause of permanent disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant sustained the burden of proof by a preponderance of the evidence that she is entitled to 14 weeks of permanent partial disability benefits for a scheduled member injury to her right eye of 10 percent of 140 weeks. Iowa Code section 85.34(2)(p). That claimant has sustained the burden of proof by a preponderance of the evidence that she is entitled to past Page 9 and future medical expenses by Dr. Versackas for this eye injury and related herpetic keratitis and in particular, the $186 owed to Dr. Versackas and $69.93 for medical mileage. order THEREFORE, IT IS ORDERED: That defendants pay to claimant fourteen (14) weeks pf permanent partial disability benefits at the stipulated rate of three hundred seventeen and 46/100 dollars ($317.46) in the total amount of four thousand four hundred forty-four and 44/100 dollars ($4,444.44) commencing on April 9, 1991, as stipulated to by the parties. That these benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants pay to claimant or the provider of medical services the bill of Dr. Versackas in the amount of one hundred eighty-six dollars ($186) and the medical mileage in the amount of sixty-nine and 93/100 dollars ($69.93). That claimant is entitled to future medical treatment for the corneal scar or the herpetic keratitis with the physician or physicians authorized by defendants. That the costs of this action, including the filing fee in the amount of sixty-five dollars ($65) and the cost of a report from Dr. Barker in the amount of ten dollars ($10), are charged to defendants pursuant to rule 343 IAC 4.33 and Iowa Code section 86.40. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of May, 1992. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Tom L. Drew Attorney at Law 1200 35th St. STE 500 West Des Moines, Iowa 50265 Ms. Anne L. Clark Attorney at Law 2700 Grand Ave, STE 111 Des Moines, Iowa 50312 Page 10 Page 1 1108.50; 51401; 51402.20; 1402.20; 1402.30; 52206; 1803; 52501; 52700 Filed May 21, 1992 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : LYNN JEFFRESS, : : Claimant, : : vs. : : File No. 944019 FIRESTONE TIRE AND RUBBER, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1108.50 51401 51402.20 1402.30 52206 Claimant was determined to have sustained an injury arising out of her employment when she got a foreign body imbedded near the cornea of her right eye at work while working near an air hose. It was further determined that the traumatic injury triggered herpetic keratitis, even though claimant had to be susceptible to it in order for it to occur. Treating ophthalmologist and an optometrist evaluator for claimant established causal connection clearly and unequivocally. Defendant employer's medical director attempted to fashion a case for a negotiated settlement based on speculation and hearsay information from other doctors (much of which was disproved). The medical director's speculation and hearsay evidence was not acceptable to determine the ultimate fact questions in dispute. Furthermore, he appeared to be serving in the roll of a partisan advocate rather than a medical doctor with an independent, unbiased medical opinion of his own. It was determined that the foreign object in the eye, the subsequent corneal scarring, and the lighted up herpetic keratitis were all caused by the traumatic injury at work. 1803 Treating ophthalmologist and evaluating optometrist both Page 2 found a 10 percent permanent impairment. Claimant awarded 14 weeks of permanent partial disability based on a 10 percent impairment using 140 weeks pursuant to Iowa Code section 85.34(2)(p). It was further determined that claimant was not entitled to 10 percent of 200 weeks based on Iowa Code section 85.34(2)(q) for the reason that claimant had not lost the vision in the other eye prior to the injury. Claimant did have impaired vision in the other eye, but it was correctable to 20/20. The award for the injured right eye was for loss that could not be corrected. 52501 52700 Claimant was awarded medical benefits. Defendant employer's medical director constructed a case based on his own speculation and hearsay evidence from other doctors (much of which was disproved) to force a compromise settlement by claimant. Claimant was awarded the unpaid medical expenses of the treating ophthalmologist and her unpaid medical mileage to see the ophthalmologist. Defendants were also ordered to provide future care for either the traumatic eye injury, the corneal scar or the herpetic keratitis. Page 1 before the iowa industrial commissioner ____________________________________________________________ : PATTY GUE, : : Claimant, : : vs. : : File No. 944022 MCDONALD'S, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : KEMPER GROUP, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case Claimant Patty Gue seeks benefits under the Iowa Workers' Compensation Act upon her petition in arbitration against defendant employer McDonald's and its insurance carrier, Kemper Group. Claimant asserts that a work injury of June 30, 1990 left her with residual disability in the low back. This cause came on for hearing in Council Bluffs, Iowa on February 1, 1993. The record consists of joint exhibits 1-13 and the testimony of claimant, Thomas Gue and Kim Eisenberg. issues The parties have stipulated that claimant sustained injury arising out of and in the course of her employment with McDonald's on June 30, 1990, that the injury caused temporary disability and that certain benefits were voluntarily paid prior to hearing. Issues presented for resolution include: 1. The extent of healing period/temporary disability; 2. Whether the injury caused permanent disability, and if so, the extent thereof; 3. The rate of compensation. Page 2 findings of fact The undersigned deputy industrial commissioner finds: Patricia Gue, 41 years of age at hearing, is a 1970 high school graduate whose work history discloses a rather peripheral attachment to the labor market. While in high school, claimant worked a part time, minimum wage job as a carhop and a part time, minimum wage job as a child care worker for several months. In 1970, she held a full time job as a sewer for a woolen mill for two months. Thereafter, she quit to travel with her husband. In 1974, she returned to Council Bluffs and worked approximately seven months in a minimum wage job operating a glue machine for an enterprise known as Blue Ribbon. She next worked approximately two months in a part time, minimum wage job with a hamburger chain, then was off work five years until working approximately one and one/half months for Capitol Tape. She next was off work for approximately ten years, before taking work as a custodian in 1989 for Bethany Lutheran Home. After being discharged (she falsely reported to a vocational rehabilitation counselor that she had left employment due to family illness) she was off work approximately six months before seeking and obtaining work with defendant McDonald's, a fast food hamburger restaurant. Claimant was hired as a part time line worker. McDonald's has no full time employees, except for management. During her short tenure, claimant was not placed in any special training program, but simply worked a variety of different jobs in the same fashion as all other part time line workers. Nothing whatsoever was unusual about her status. On ten different working days between June 18 and June 30, 1990, claimant worked a total of 53.1 hours (at minimum wage, $3.85 per hour). On her two best days, she worked over seven hours, but less than eight hours. Claimant takes the position that she was more or less promised a full time position after her children returned to school and she was "trained." The evidence completely fails to support this assertion. Ms. Gue suffered her work injury when she slipped on ice in a walk-in freezer and fell awkwardly. Suffering from pain in the right foot and back, she tried to work for a while longer, then left. She was seen later that day at the Mercy Hospital Emergency Room, where she complained of pain in the mid back, right lower leg, ankle and foot. Minimal swelling was seen at the right ankle and some muscle spasm was present in the back. Radiological studies by D. T. Van de Water, M.D., were normal as to the right ankle and lumbar spine, and showed degenerative changes at the first MP joint with no acute abnormality evident and slight degenerative change in the lower thoracic spine. Again, no acute abnormality was evident. Discharge diagnosis was of thoraco-lumbar strain; sprain of the right foot and ankle. No permanent disability was anticipated by the treating Page 3 physician. Claimant was next seen by Edward R. Farrage, M.D. His report of August 14, 1990 reflected a diagnosis of dorsal and right ankle sprain which was not anticipated to result in permanent disability. Dr. Ferrage referred claimant to an orthopedic specialist, James R. Rochelle, M.D. Dr. Rochelle treated with physical therapy, keeping claimant off work and encouraging her to exercise by walking. His chart notes of August 17 showed complaints of significant pain in the base of the cervical spine with radiation into the right shoulder. Claimant's "high muscle tension is exacerbating her pain symptoms." By August 29, Dr. Rochelle diagnosed lumbar, cervical and right shoulder strains, improved. Claimant was next treated by Charles Taylon, M.D. Although his chart notes are not in evidence, Dr. Taylon apparently treated claimant into 1991. On February 13, 1991, he concluded that Ms. Gue had reached maximum medical improvement and assigned her a three percent permanent partial "disability" to the body as a whole. On March 6, Dr. Taylon assigned medical restrictions of 25 pounds lifting with no repetitive bending or twisting and limited sitting and standing to two hours at a stretch with associated rest periods. Dr. Taylon's diagnosis as of September 24, 1990 was of a mechanical musculoligamentous injury to the spine. Claimant twice attempted to return to work, working 5.62 hours on July 9 and 4.10 hours on July 18, 1990. She complains that she was unable to continue working and, indeed, concedes that she has never looked for work since due to residual complaints of back pain. She complains that she is unable to sit or stand for prolonged periods, that she needs help doing grocery shopping, that she is unable to walk more than 20-30 minutes and that her sleep patterns are disturbed. She disagrees with the 25 pound lifting restriction imposed by Dr. Taylon, noting that she has problems lifting her 14 pound dog. Defendants offered vocational rehabilitation services through several companies. Jim Weiss of Rehabilitation Management, Inc., furnished written job descriptions for file clerk and general office clerk to Dr. Taylon, who agreed she could do either job full time. However, claimant advised Weiss that she did not feel she could work, so vocational rehabilitation efforts were discontinued. Claimant says that she was never told that Dr. Taylon had approved full time work at the file clerk or general office clerk jobs described in the evidence. Claimant was also seen for evaluation on July 27, 1992 by Joel T. Cotton, M.D., a neurologist. Dr. Cotton found claimant's neurological examination to be normal with no evidence of residual physical injury to the thoracic spine or to the right ankle. In the thoracic spine, claimant was found to have normal range of motion, no areas of tenderness to palpation and no evidence of perivertebral spasm. Page 4 Claimant's spinal complaints were confined to the thoracic spine region. There was no evidence of complaint or injury to the cervical spine or lumbar spine. Dr. Cotton assigned a two percent impairment rating to the body as a whole strictly on the basis of persisting complaints of pain, although finding no objective evidence of injury. Similarly, Dr. Cotton was unable to find evidence of residual physical injury to the right ankle. Dr. Cotton found that claimant was capable of returning to all usual and customary activity without restriction, as there was no functional limitation applicable on the basis of any residual physical injury. Dr. Cotton found that Dr. Taylon's restrictions are of March 1991 may have applicable at that time, but would not be expected to be of a permanent nature. Dr. Cotton believed that as of June 30, 1991, claimant should have been capable of returning to all usual and customary activity without restriction. conclusions of law As noted above, the parties agree that claimant sustained injury arising out of and in the course of employment and that the injury caused temporary disability, although the extent is disputed. Temporary disability is compensable as a healing period under Iowa Code section 85.34 in cases causing permanent partial disability. It is compensable as temporary total or temporary partial disability under section 85.33 where no permanent disability exists. Because claimant's injury was to the body as a whole, any permanency must be compensated industrially. Industrial disability was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Page 5 Although Ms. Gue complains of continued pain, pain itself is not compensable absent a diminution of earning capacity and, absent objective findings, is not equivalent to impairment. Waller v. Chamberlain Manufacturing, II Iowa Industrial Commissioner Report 419 (1981). Two physicians have rendered opinions as to functional disability and medical restrictions. Dr. Taylon, a treating physician, imposed medical restrictions in 1991 based, apparently, on his earlier diagnosis of mechanical musculoligamentous injury. Dr. Cotton, an evaluating physician, rated impairment based strictly on subjective complaints, but found no residual objective signs of injury and recommended no activity restrictions whatsoever. It is not necessarily the case that a treating physician's opinion should be given greater weight than that of a later physician who examines claimant in anticipation of litigation. Rockwell Graphic Systems, Inc., v. Prince, 366 N.W.2d 187 (Iowa 1985). Rather, factors such as education, compensation, the day of examination, and experience go to the value of that opinion as a matter of fact, not law. In this case, Dr. Cotton's opinion should be given greater weight. Not only did he see claimant much more recently than did Dr. Taylon, but his opinions are backed up by a detailed and explanatory report. Dr. Taylon's opinion exists in a vacuum. He does not explain whether any objective signs of injury were found in early 1991 or what factors went into his assignment of an impairment (or, in his words, "disability") rating. Dr. Cotton not only finds no residual objective signs of impairment, but releases claimant to any activity which she might previously have performed. Although claimant is not now working, it appears that she has little if any motivation to work (even Dr. Taylon agreed that she could perform file clerk and general office duties) and has shown a lifetime attachment to the labor market that is tenuous at best. No diminution of earning capacity exists: ergo, no award of industrial disability is justified. Under Iowa Code section 85.33(1), temporary total disability is payable until the employee has returned to work or is medically capable of returning to substantially similar employment, whichever first occurs. Although Dr. Taylon released claimant in early 1991, he did so with restrictions. Dr. Cotton's more persuasive opinion notes that claimant should have been completely healed within one year of the original injury. Fifty-two weeks of temporary total disability shall be awarded. The parties also dispute the appropriate rate of compensation. Claimant takes the position that rate should be calculated under Iowa Code section 85.36(10)(b), as an apprentice or trainee at the time of injury. Under that subsection, status as an apprentice or trainee whose earnings should be expected to increase during the period of Page 6 disability may be considered in computing average weekly earnings. Defendants, on the other hand, point out that claimant was a part time worker and believe that compensation should be calculated under Iowa Code section 85.36(10) on the basis of 1/50th of total earnings from all employment during the twelve calendar months immediately preceding the injury. Neither contention is correct. Claimant as a matter of fact was simply not in an apprentice or trainee status at the time of her injury. She was a part time line employee no different from many others. On the other hand, it cannot be said (as required by 85.36(10)) that claimant earned 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." Defendants cite as precedent the recent decision of Lamb v. Betner, Inc., File Number 833231 (Appeal Decision November 30, 1992). That case also involved a part time employee injured at a McDonald's restaurant. However, the case must be distinguished. The Commissioner found in Lamb that the evidence showed there were regular full time employees working for that employer and other McDonald's stores in the Waterloo, Iowa area. The record in this case is completely different. The store in question and other McDonald's in the Council Bluffs area hire no full time workers, except for management. Therefore, 85.36(10) is inapplicable since the record does not show that regular full time adults laborers in that line of industry exist in this locality. Since claimant was paid an hourly wage, her rate of compensation should be calculated under section 85.36(6) and (7), since claimant had been in defendants' employ less than thirteen calendar weeks immediately preceding the injury. Therefore, her weekly earnings must be computed by dividing by thirteen the earnings earned in the last period of thirteen weeks, considering the amount the employee would have earned had she been employed for the full thirteen calendar weeks immediately preceding the injury. Claimant was injured on her thirteenth day of employment, not divisible evenly by weeks. Of those thirteen days, she worked ten, as follows: five days worked, two days off, one day worked, one day off, four days worked. The record does not show whether claimant was scheduled to work July 1. In the absence of proof, it would be speculative to consider how many hours claimant would have worked on the fourteen day, if any. During her two weeks of employment prior to the injury, claimant worked 53.10 hours, or an average of 26.55 hours per week. At an hourly wage of $3.85, this is an average weekly wage of $102.22. This is held to be claimant's average gross weekly wage for purposes of calculating rate. The parties have stipulated to a marital status of married and four exemptions. According to the rate book published by this office and in effect at the time of claimant's Page 7 injury, an individual so situated is entitled to a weekly rate of $88.79. Defendants have paid a total of $732.60 in weekly benefits. order THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant fifty-two (52) weeks of temporary total disability benefits commencing July 1, 1990 at the rate of eighty-eight and 79/100 dollars ($88.79) per week, totalling four thousand six hundred seventeen and 08/100 dollars ($4,617.08). Defendants shall have credit for all benefits voluntarily paid prior to hearing. Defendants shall file claim activity reports as required by the agency. The costs of this action are assessed to defendants. Signed and filed this ____ day of February, 1993. ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Sheldon M Gallner Attorney at Law 803 Third Avenue PO Box 1588 Council Bluffs Iowa 51502 Mr Thomas M Plaza Attorney at Law 701 Pierce Street Ste 200 PO Box 3086 Sioux City Iowa 51102 3000.2 Filed February 11, 1993 DAVID R. RASEY before the iowa industrial commissioner ____________________________________________________________ : PATTY GUE, : : Claimant, : : vs. : : File No. 944022 MCDONALD'S, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : KEMPER GROUP, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 3000.2 Claimant was a part time line worker for a McDonald's restaurant at minimum wage. She was held not to be in a training or apprentice status under section 85.36(10)(b) as asserted by claimant. Distinguishing Lamb v. Betner, Inc., File Number 833231 (Appeal Dec., November 30, 1992), rate was not calculated under section 85.36(10) as 1/50th of the previous year's total earnings, because the record failed to show that "regular full time adult laborer(s)" existed in that line of industry in claimant's locality. The only full time employees maintained by McDonald's were management people. Since claimant was injured in her second week of employment, rate was calculated under 85.36(6) and (7) based on what her earnings would likely have been if she had worked thirteen weeks prior to injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ STEVE KELSO, : : File No. 944038 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N MAYTAG COMPANY, : : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Steve Kelso, against his self-insured employer, Maytag, defendant. The case was heard on October 12, 1993 at the office of the Industrial Commissioner. The record consists of joint medical exhibits 1-12 and non-medical exhibits 1-3. The record consists of the testimony of claimant. The record also consists of the testimony of Jeffrey L. Boldt, physician's assistant, and Randy Claussen, Manager of Labor Relations. It is noted that a number of the offered exhibits were of such poor quality that the deputy industrial commissioner could not read them. ISSUES The issues to be determined are: 1) Whether claimant is entitled to any permanent partial disability benefits and, if so, whether claimant's permanent injury is a scheduled member injury or whether he has sustained an industrial disability; and 2) whether claimant is entitled to an independent medical examination pursuant to section 85.39 of the Iowa Code. FINDINGS OF FACT The deputy, having heard the testimony and considered all of the evidence, finds: Claimant is 39 years old. He is single and the father of five children. Claimant described his educational background. He completed the eleventh grade. However, he does not have a high school diploma. Nor does he have a GED. Following his education, claimant held a variety of jobs. He worked as a machinist on at least two occasions. He was required to operate lathes and drills. He served as an apprentice to a body shop where he was required to mix paint. Page 2 Claimant worked as a mechanic where he repaired construction equipment for two and one half years. He also worked on construction. He was an independent contractor for approximately five years. Claimant testified he only earned from $7,000.00 to $12,000.00 per year. Next, claimant worked at an apartment complex where he was the head of the maintenance department. He earned $1,000 per month plus he received an apartment which was free of charge. Claimant held this position until he commenced his employment with this defendant. In 1986 claimant was hired by defendant. For the first three months of his employment, claimant was employed as a loader-unloader. His duties consisted of flipping the spinners of automatic washers. The spinners weighed from 28 to 32 pounds. He was next required to remove spinners from the line, to push several buttons, to spray the spinners, to flip them over and place them on another line. Claimant handled from 150 to 300 per hour. He held that position for approximately seven months. Next, claimant worked on the inspection line. He stood on a platform and he inspected the spinners for chips, then he would place the spinners onto another line. Sometimes he would be required to stack five spinners together. He held the position for five to six months. Claimant was then transferred to the top cover line. This was a two handed job. He was required to remove parts in the control panel and to inspect them. Claimant testified there was considerable rotation of his hands. Claimant was then assigned to a clean up job. He used a shovel four to six hours per day and he scooped wet porcelain which weighed more than 15 pounds. At times claimant indicated the weight of the wet porcelain weighed as much as 50 to 100 pounds. In May of 1990, claimant complained to the company medical staff that he was experiencing difficulties with his upper extremities. As of May 8, 1990, claimant reported to the company nurse: S: This male presnets [sic] to the clinic with complaints of some cramping in his hands and numbness and tingling in his hands and forearms for approximately 1 1/2 months. He relates last evening they work [sic] him up in the middle of the night with cramping in both his hands. He relates he has done the same job for approximately two years which required some repetitive outward rotation of his rt. and left hand with small light parts. Denies any injury or trauma to the area. O: patient [sic] has strong and equal bilateral hand grasps. Range of motion of the wrists without discomfort. Phalen' [sic] and Tinel's is negative. Page 3 A: Bilateral hand wrist strain. Plan T: Patient was started on Vitamin B6 six tablets per day. Instructed to use intermittent ice to the area. Was fitted with some plastic stay wrist braces and instructed to return for re-examination on 5-15-90 or sooner if problems worsen. (Exhibit 1, pages 8 & 9) In July of 1990, Dr. Carlstrom performed a surgical release of a left ulnar neuropathy. The neurologic exams revealed that claimant had mild weakness of the left ulnar distribution (Ex. 4, p. 69). Claimant did not improve over time. Consequently, Dr. Carlstrom performed a second surgery on the left arm in November of 1990. The physician re-explored the left ulnar nerve because of persistent complaints of pain (Ex. 2, p. 49). Claimant was restricted from work for approximately 14 months. He underwent physical therapy at the Iowa Methodist Medical Center. He participated in the Medlink work hardening program which was available at Methodist Hospital. The medical staff assisted claimant in a work re-entry program. Claimant was also prescribed a tens unit. The staff at the work re-entry program determined claimant had received maximum benefit from the program. On December 19, 1990, Dr. Carlstrom opined the following in his report of the same date: I saw Steven Kelso today. He is still having the same symptoms in his left arm that he has been having, though perhaps they might be a little less bothersome. He is also having some discomfort in his right arm. The exam remains mildly remarkable with discomfort in the flexor muscles of the forearm and tenderness over the elbow. The neurologic function is normal, however. I think this patient has reached maximum benefits of healing. I think he probably has sustained an impairment of about 15% of the left arm and 5% of the right arm from a repetitive motion myofascial injury. I don't think any further surgical treatment is warranted, nor do I see any point in any further evaluation. (Ex. 9, p. 135) Robert A. Hayne, M.D., Dr. Carlstrom's partner, computed Dr. Carlstrom's rating as an impairment rating of 12 percent to the body as a whole (Ex. 9-138). Craig DuBois, M.D., of the Iowa Pain Management Center, examined and evaluated claimant. Dr. DuBois diagnosed claimant as having: "Neuritis persistent in the ulnar nerve despite transposition in release" (Ex. 3, p. 56). Later, Page 4 Dr. Dubois opined that claimant's condition was: 1. Persistent left arm pain at the medial aspect of the elbow with suspected inflamed ulnar nerve persisting. It does appear that this is exacerbated with activity and has recently improved with decrease in his use of the elbow at work. The long term problem here is that the patient does not want to have injections into the area which is one of option [sic] to consider yet and also he just does not feel that the area is appropriately healed, diagnosed and treated. I genuinely believe this patient does have some persistent ulnar irritation exacerbated by use of the flexor bundles in the elbow forearm junction. (Ex. 3, pp. 61-62) In September of 1991, claimant was allowed to return to work with certain restrictions (Ex. 1, p. 21). The restrictions included maximum lifting of 15 pounds and claimant was to avoid the repetitive use of his arms (Ex. 1, p. 21). Later the restrictions were modified to no repetitive movements after 30 minutes (Ex. 1, p. 24). Claimant returned to work. However, he indicated to the medical personnel at the job site that he was experiencing severe cramping in his hands and forearms. Several conservative methods for treatment were prescribed. He received several cortisone injections in his left elbow (Ex. 1, p. 26). The injections were of no assistance to him. Because claimant's condition did not improve, EMG studies were conducted in June of 1992 (Ex. 7, p. 100). The tests revealed the following: SUMMARY: The nerve conduction studies are normal. The needle examination reveals high amplitude, long duration motor unit potentials and fasciculations in the distal ulnar innervated muscles bilaterally. INTERPRETATION: The EMG is consistent with bilateral non-localized ulnar neuropathies. (Ex. 7, p. 100) While he was participating in the programs at the Iowa Methodist Medical Center, claimant was seen by the director of Occupational Medicine. Michael J. Makowsky, M.D., examined and treated claimant. He also referred claimant to the Mayo Clinic for a second opinion. Dr. Makowsky opined the following in his report of September 9, 1993: You requested my comments about a partial permanent impairment. Dr. Carlstrom previously assigned him a permanent impairment of 15% of the Page 5 left arm. This was secondary to the residual from the ulnar nerve surgery at the elbow. I feel that this is an appropriate impairment of the left upper extremity as it relates to the ulnar nerve surgery. Mr. Kelso has had complete resolution of his symptoms caused by the compression of the medial nerve at the elbow and forearm. I do not think he has any permanent impairment as a result of the pronator teres syndrome. He has a right ulnar neuropathy documented by EMG nerve conduction study, which translates to a 3-5% permanent partial impairment to the right upper extremity. The patient is currently complaining of chronic pain. I think his chronic pain is secondary to the surgery over the ulnar nerve. I think his dysfunction and need for permanent restrictions is related to his left ulnar nerve surgery and not related to the pronator teres and median nerve surgery. The functional impairment is that of the elbow and distal to the elbow. I think he may have a chronic pain syndrome which results in disability of the arm which does not result in impairment. His current restrictions are due to his problems in the elbow and not as it relates to the surgery performed by Dr. Linscheid. In Dr. Smith's independent medical evaluation, there were comments to the effect on page 2 of his office notes, paragraph three that patient really had no real improvement following surgery. I would agree that the patient had no improvement of his elbow symptoms, but he did have improvement of his symptoms that were in his left forearm. I did not think the patient's real problem or functional impairment of his left elbow has changed very much since Dr. Carlstrom initially assigned the 15% impairment of the left upper extremity. His chronic pain syndrome is causing disability, but not further impairment. He does have some impairment of the left elbow caused by the ulnar nerve surgery. This has resulted in some weakness of his left hand. All of his injuries are limited to his left or right upper extremity and do not extend into his trunk. All of his surgeries to the left upper extremity sites are due to the upper extremity impairment and not any impairment to his shoulders, trunk, or neck. (Ex. 2, pp. 49 & 50) R. L. Linscheld, M.D., of the Mayo Clinic evaluated claimant in 1992 and in 1993. After several examinations, Dr. Linscheld opined that a third surgical procedure was the best course of action for claimant's recovery. The surgeon opined in his report of February 4, 1993: Page 6 Mr. Kelso returned on January 25, 1993, for consideration of an ulnar vein wrapping of his previously transposed ulnar nerve, but during the course of reviewing his pain pattern it became obvious there were some elements that appeared to be unrelated to his ulnar nerve. He volunteered he had had to drive his car with his forearms supinated, and proceeding with further questioning it seemed most of his discomfort occurred with pronosupination activities. His provocative pronator signs appeared to be strongly positive suggesting that his pain pattern might have been due to a pronator syndrome. After discussing this with you on the phone, we did proceed to explore the antecubital space the following day. His pronator teres had a proximal take-off well onto the medial epicondyle flare. The lacertus fibrosus appeared to be somewhat hypertrophied and indented the pronator musculature on passive pronation. He had a rather large deep head of the pronator teres with a tendon of origin from either side that appeared to compress the nerve just proximal to the level of the take-off of the anterior interosseous. We released all these structures and allowed him to return home the same day. He planned on having his dressings changed at the plant the next morning. When I talked to him on the phone the following day he said the pain in his forearm and the numb feeling in his hand was improved. I am in hopes this indeed will provide him with relief and avoid any further operations on his ulnar nerve. If this rehabilitation proceeds as anticipated, I think he could return to work with his left arm by March 2, 1993, anticipating a light work approach until his arm feels more comfortable at two to three weeks. If he appears to have a bit earlier response, consideration of releasing the right during his convalescence on the left might be entertained. Thanks again for the opportunity to see such an interesting problem. I hope that we have substantially improved his problem. (Ex. 7, p. 105) Claimant then sought an additional opinion from a physician relative to his condition. Kevin F. Smith, M.D., of the Workmed Midwest Clinic examined and evaluated claimant for purposes of rendering a report. The report was given in anticipation of litigation. Dr. Smith authored a report dated July 23, 1993. In his report the evaluating physician opined: LEFT UPPER EXTREMITY: Page 7 Shoulder: On the left side showed no signs of scarring, discoloration or abrasion. Upon palpation of soft tissue the patient had no tenderness. Bony landmarks were identified. No palpable nodes on axilla. The patient had normal smooth unguarded range of motion on abduction, adduction, flexion, extension, internal and external rotation. Neurologic examination: the patient had good range of motion with resisted good muscle tone. Also had negative drop arm test. Elbow: The patient had normal carrying angle of 5 degrees with positive swelling and multiple scar sites along the medial epicondyle and midline both superior and inferior to the elbow joint. Soft tissue palpation demonstrated exquisite pain along the medial epicondyle and medial aspect of the forearm on light touch. There was generalized tenderness in and around the joint itself. Range of motion revealed flexion to 130 degrees, extension is 0 degrees, supination to 50 degrees, pronation to 70 degrees. On neurologic testing the patient had positive biceps reflex, positive brachioradial reflex, positive triceps reflex. Negative Finkelstein's test. Positive Tinel's over the path of the ulnar nerve. Also, positive palpable brachial pulse. Wrist and hand: The patient had normal unguarded smooth movement of the wrist and hand with a normal attitude of the hand. Soft tissue demonstrated no tenderness or no masses. Bony landmarks were identified. The patient has positive ulnar radial pulses. On range of motion the patient had flexion to 55 degrees, extension to 55 degrees, ulnar deviation 20 degrees, radial deviation to 20 degrees. Mild positive Tinel's over the Guyon canal. Negative Tinel's and negative Phalen's over the carpal canal. Negative Finkelstein's test and good muscle tone on resistance. On range of motion in the joints of the hand the patient had normal range of motion at the MCP, PIP and DIP joints. RIGHT UPPER EXTREMITY: Shoulder: Examination on the left side showed no signs of scarring, discoloration, or abrasion. On palpation of soft tissue the patient had no tenderness. Bony landmarks were identified. No palpable nodes were noted in the axilla. The patient had normal range of motion on abduction, adduction, flexion, extension, internal rotation and external rotation. Neurologic examination the patient had Page 8 good range of motion with resistance and good muscle tone. Also, negative drop arm test. ELBOW: The patient had normal appearing 5 degrees with no swelling, scarring, discoloration or abrasion over the site. Soft tissue palpation demonstrates some tenderness over the medial epicondyle. Range of motion revealed flexion to 140 degrees, extension to 0 degrees, supination 80 degrees, pronation to 80 degrees. Neurologic testing demonstrated positive bicipital reflex, positive brachioradial reflex, positive triceps reflex. Negative tennis elbow and positive Tinel's over the ulnar groove. The patient had positive brachial pulse. Wrist and hand: The patient had normal unguarded smooth movement of the wrist and hand with normal attitude of the hand. Soft tissue palpation demonstrates no tenderness or masses. Bony landmarks were identified. The patient had positive ulnar and radial pulses. On range of motion the patient had normal range of motion on flexion, extension, ulnar deviation, and radial deviation. Negative Tinel's and negative Phalen's of the carpal canal. Negative Finkelstein's test. Good muscle tone on wrist. On range of motion of the hand, the patient had normal range of motion at the MCP, PIP and DIP joints. On grip strength on the right before 10/8, and left before 10/66 and after 10/66. .... IMPRESSION: 1. Overuse Syndrome, bilateral upper extremity with associated ulnar nerve neuropathies, work related, chronic. 2. Left ulnar neuropathy with subsequent surgery times three with residual ulnar nerve neuritis with associated reports of numbness and tingling, loss of strength and pain, work related, chronic. 3. Right ulnar neuropathy, work related, chronic. 4. Myofascial Pain Syndrome, associated with the above work related conditions, involving cervical area, shoulder girdles, and upper extremities bilaterally, work related, chronic. TREATMENT RECOMMENDATIONS: 1. The patient can return to work with his previous permanent light duty restrictions set on May 21, 1993, by the Maytag Medical Department, Page 9 which are permanent restrictions of avoid repetitive flexion and extension of the left elbow. Maximum frequency of lifting 5 to 10 pounds. Occasional lift of 15 pounds. 2. Use of water therapy exercises three times a week for the next three to four months to stabilize reports of pain and to improve function. 3. Follow up with the Maytag Medical Department for ongoing care. .... Based on review of the medical records and clinic evaluation today the patient has an Overuse Syndrome involving the upper extremities with associated bilateral ulnar neuropathy, left side worse then right. He also has associated Myofascial Pain Syndrome involving the upper extremity, shoulder girdle, and the cervical area. His conditions are associated with pain, numbness and tingling in the upper extremities, left worse then the right. It is also associated with decreased grip strength and cramping into the hands. His condition is work related and now permanent and stationary. Functional impairment rating based on the following factors: 1. Loss of range of motion. 2. Loss of function due to pain. 3. Loss of function due to loss of strength. The patient has a functional impairment rating of 18% of the left upper extremity and 5% of the right upper extremity. Using the combined values table this equals a functional impairment rating of 14% of the body as a whole. (Ex. 11, pp. 154-155, 159-161) Pursuant to claimant's request, Dr. Linscheid authored another report dated August 9, 1993. In his report, the physician opined: On examination the scar over the anteromedial aspect of the antecubital space appeared to be well healed. There was one tender area in the scar at the level of the second apex from the wrist crease and produced a sharp pain but did not seem to produce any significant parasthesias either locally or into the fingers. This could be a neuroma in the small branch of one of the sensory nerves, but didn't seem to be connected with the median nerve in general. The scar was otherwise well healed. The muscle circumference Page 10 of his forearms appeared to be about equal bilaterally. Individual muscle testing appeared to be satisfactory though there was some giving way particularly on the little and ring finger profundus. The area of greatest tenderness at the present time was along the course of the ulnar nerve from about 3 cm above the medial epicondyle to where it disappeared into the flexor carpi ulnaris. Stretching the little and ring fingers into extension after a few minutes produced discomfort in the forearm which made him want to withdraw the arm. He found the position of comfort greatest when he flexed the wrist and/or fingers fully, suggesting that removing tension from the muscles along the course of the ulnar side of the forearm gave him some relief. Provocative pronator signs were only mildly irritable at this time. phalen's [sic] sign, however, was positive and did produce numbness into the median distribution. It also tended to reproduce some of the aching discomfort he had in his forearm. He rarely had discomfort into the dorsal aspect of the forearm. I would have to assume at this time that most of his discomfort is associated with irritation of the ulnar nerve, probably adhesions, that are being stretched with the nerve during repetitive elbow motion. Pressure over the ulnar nerve just above the medial epicondyle did result in numbness going into the little and ring fingers. The intrinsic muscles themselves did not appear to be wasted and only mildly weak. His grip strength averaged 12 kg on the right and 4 kg on the left on several trials and with rapid switching from hand to hand. On testing the profundus as he gripped there was usually one or two fingers in which the produndus [sic] tendon did not appear to be under as much tension as the other fingers. I am not sure of the mechanism that grades this. It is somewhat difficult to know why the degree of subjective discomfort is so great or why it has been so unresponsive to all the treatments to date. Nevertheless, I would think he does still have a significant ulnar neuropathy or neuritis probably associated with epineural scarring and that he has some on the other side as well. Both of these would appear to be partially confirmed by the electromyographic findings of December 1992. He also may have a carpal tunnel on the left although our electromyographic studies of December 1992 and clinical tests at that time did not suggest this was a factor. If one were to further pursue the problem, I would think a diagnostic injection of local anesthetic and Cortisone into the carpal canal would help to determine whether or not there is significant carpal tunnel factor associated on the left. One could also consider returning to a revision of the anterior Page 11 transposition of his ulnar nerve and again considering the vein wrap and/or submuscular transposition. The nerve, however, may be sensitive enough that further treatment could be of limited value. On the right side I think he has a moderate ulnar neuritis associated with a cubital tunnel problem, and if anything were to be done about this, at the present time I would only [sic] willing to do a posterior fasciotomy of the Osborn type rather than a submuscular or anterior transfer because of his poor response to similar treatment on the left. I think there is genuine weakness of the hands, more so on the left than on the right, and ulnar neuritis that does produce cramps and stretching of the ulnar nerve does increase the discomfort in the forearms. He probably has a modest carpal tunnel on the left as well. On the basis of the above, I would assign a permanent partial impairment to the left arm as 30 percent and the right arm as 10 percent. (Ex. 7, pp. 112-114) Claimant eventually returned to work at the plant site. At the time of the hearing, claimant was working full time, as well as working overtime when requested. CONCLUSIONS OF LAW The burden of proof is on the party asserting the affirmative of an issue in an administrative proceeding; "on the party who would suffer loss if the issue were not established." Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 1973); Norland v. Ides, 412 N.W.2d 904 (Iowa 1987). A treating physician's testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. Weight to be given testimony of a physician is a fact issue to be decided by the industrial commissioner in light of the record the parties develop. In this regard, both parties may develop facts as to the physician's employment in connection with litigation; the physician's examination at a late date and not when the injuries were fresh; his arrangement as to compensation; the nature and extent of the physician's examination; the physician's education; experience; training; practice; and all other factors which bear upon the weight and value of the physician's testimony. The parties may bring all this information to the attention of the factfinder as either supporting or weakening the physician's testimony and opinion. All factors go to the value of the physician's testimony as a matter of fact not as a matter of law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 176, 192 (Iowa 1985). The right of an employee to receive compensation for injuries sustained is statutory. The statute conferring Page 12 this right can also fix the amount of compensation payable for different specific injuries. The employee is not entitled to compensation except as the statute provides. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Compensation for permanent partial disability begins at termination of the healing period. Iowa Code section 85.34(2). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960). An injury to a scheduled member may, because of aftereffects or compensatory change, result in permanent impairment of the body as a whole. Such impairment may, in turn, be the basis for a rating of industrial disability. It is the anatomical situs of the permanent injury or impairment which determines whether the schedules in Iowa Code section 85.34(2)"a"-"t" are applied. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). When disability is found in the shoulder, a body as a whole situation may exist. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949). In Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 (App. 1982), a torn rotator cuff was found to cause disability to the body as a whole. The mere fact that a rating pertains to a scheduled member does not mean the disability is restricted to a schedule. Pullen v. Brown & Lembrecht Earthmoving, Incorporated, II Iowa Industrial Commissioner Reports 308 (Appeal Decision 1982). Workers' compensation benefits for permanent partial disability of two members caused by a single accident is a scheduled benefit under Iowa Code section 85.34(2)(s) and the degree of impairment caused by a partial loss must be computed on the basis of functional, rather than industrial disability. Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (1983). It is this deputy industrial commissioner's determination that claimant has sustained a bilateral injury to both upper extremities. Claimant has not proven by a preponderance of the evidence that his injuries extend beyond the upper extremities and into the body as a whole. No medical experts provided supporting documentation that claimant's permanent condition affected his body as a whole. All of the medical evidence supports a conclusion that claimant's permanent condition involved the upper extremities. The medical providers opined the loss was the result of one accident. Page 13 Since claimant has a bilateral injury to both upper extremities, his injury is to be calculated as provided in section 85.34(2)(s). The next issue to address is the nature and extent of claimant's bilateral injury which involves his upper extremities. Greater weight is given to the opinion of Dr. Linscheid than is accorded to the opinions of the other physicians. Dr. Linscheid is the physician who performed the most recent surgery on claimant's left upper extremity. The surgeon is associated with the Mayo Clinic which is a recognized medical facility. The Mayo Clinic is world renowned as a leader in medical care. Dr. Linscheid is a trail blazer in terms of new technical procedures. He is only one of a very few surgeons who is performing the umbilical vein wrap of the ulnar nerve. He is also the physician who discovered that claimant had a left pronator teres syndrome. Additionally, Dr. Lischeid visited with claimant on several occasions. The surgeon had adequate opportunities to examine claimant. Dr. Linscheid also reviewed claimant's x-rays and EMG's. Therefore, in light of the above, as well as in light of the personal observation of claimant and the other witnesses, it is this deputy's determination that claimant has a 30 percent functional impairment to the left upper extremity and he has a 5 percent functional impairment to the right upper extremity. The injury is to be calculated as provided in section 85.34(2)(s). The method for calculating is as follows: Using the Third Edition of the AMA Guides to the Evaluation of Permanent impairment, 30 percent of the left upper extremity is converted to 18 percent of the whole person and 5 percent of the right upper extremity is converted to 3 percent of the whole person. Then when evaluating these two values on the combined values chart on page 247 of the Third Edition, a combined value of 20 percent of the body as a whole is produced. Iowa Code section 85.34(2)(s) governs the calculation of benefits for an injury to both upper extremities caused by a single accident. The method for calculating the claimant's benefits is as follows: (20 percent x 500 weeks = 100 weeks). Claimant is entitled to 100 weeks of permanent partial disability benefits commencing on the stipulated date of May 21, 1991 and at the stipulated rate of $341.14 per week. The next issue to address is the issue dealing with an independent medical examination. Claimant is requesting payment for the costs of an independent medical examination pursuant to section 85.39 of the Iowa Code. On July 22, 1993, claimant was examined by Kevin Smith, M.D., for the purposes of obtaining an independent medical examination. The evaluating physician examined claimant and then the medical practitioner authored an 11 page report Page 14 dated July 23, 1993 (Ex. 11). Iowa Code section 85.39 provides in relevant part: If an evaluation of permanent disability has been made by a physician retained by the employer and the employee believes this evaluation to be too low, the employee shall, upon application to the commissioner and upon delivery of a copy of the application to the employer and its insurance carrier, be reimbursed by the employer the reasonable fee for a subsequent examination by a physician of the employee's own choice, and reasonably necessary transportation expenses incurred for the examination. The physician chosen by the employee has the right to confer with and obtain from the employer-retained physician sufficient history of the injury to make a proper examination. Section 85.39 permits an employee to be reimbursed for a subsequent examination by a physician of the employee's choice where an employer-retained physician has previously evaluated "permanent disability" and the employee believes that the initial evaluation is too low. The section also permits reimbursement for reasonably necessary transportation expenses incurred and for any wage loss occasioned by the employee's attending the subsequent examination. Defendants are only responsible for reasonable fees associated with claimant's independent medical examination. Claimant has the burden of proof with respect to the issue of the reasonableness of a fee. See Schintgen v. Economy Fire and Casualty Co., File No. 855298 (Appeal Decision, April 26, 1991). It is not necessary for claimant to obtain prior approval of defendants or that claimant file an application with the industrial commissioner's office prior to seeing a medical examiner. Vaughn v. Iowa Power, Inc., File No. 925283 (Arbitration Decision, August 5, 1992). Nor is it necessary for claimant to apply for reimbursement for an independent medical examination by a physician who is retained by claimant prior to the examination or prior to the hearing. Pirozek v. Swift Independent Packing and Second Injury Fund of Iowa, File Nos. 753643, 753642, 724893 (Appeal Decision 1987). In the case of Wright v. Bridgestone/Firestone, File No. 1023144 (Appeal Decision April 29, 1993) it was held that in an expedited procedure, a bill paid by claimant creates an inference that the fee is reasonable. In the Wright case, defendants failed to overcome claimant's prima facie case of reasonableness and it was held that $600 for an independent medical examination was reasonable. In Wright, this deputy industrial commissioner wrote: Claimant has met his burden of proof. Dr. Rosenfeld's fee of $600.00 is reasonable. Page 15 Claimant has paid the bill. The fee does not appear outrageous or excessive. The sensibilities of this deputy are not shocked. Even Dr. Neff, who has a reputation as a "defense doctor", opines that his fee, in a case like the present one, will be in the $350 to $400 range. It is beyond this deputy's imagination how $400 can be reasonable but $600 cannot. This is a fine example of hair-splitting. This deputy refuses to engage in hair-splitting or to tinker with the fee. In this division, there is no predetermined fee schedule which covers various types of independent medical examinations. This deputy declines to draft such a fee schedule. The undersigned is quite convinced that the fee of $600 is fair and reasonable. However, it is noted that a far different result may occur if the same type of examination is conducted, and the physician performing the independent medical exam charges $6,000. Such is not the case here. Claimant is entitled to an independent medical examination pursuant to section 85.39. He is not required to request permission prior to the time that the hearing issues were established. Doctors who were retained by defendant provided determinations that claimant had sustained a permanent condition. With respect to the present case, the fee of $500 is not outrageous or shocking. The physician drafted a 10 page report which was detailed. The fee of $500 is reasonable. Defendant is liable to pay for the cost of the independent medical examination in the sum of $500. ORDER THEREFORE, IT IS ORDERED: Defendant shall pay unto claimant one hundred (100) weeks of permanent partial disability benefits at the stipulated rate of three hundred forty-one and 14/l00 dollars ($341.14) per week and commencing on May 21, 1991. Defendant shall take credit for all permanent partial disability benefits previously paid to claimant. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent per year. Defendant shall pay five hundred dollars ($500) for the cost of an independent medical examination with Kevin Smith, M.D., and pursuant to section 85.39 of the Iowa Code. Costs are taxed to defendant pursuant to rule 343 IAC 4.33. Defendant shall file a claim activity report as requested by this division and pursuant to rule 343 IAC 3.1. Page 16 Signed and filed this ____ day of July, 1994. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Nick J. Avgerinos Attorney at Law Suite 1527 135 S LaSalle St Chicago IL 60603 Mr. Steven M. Nadel Attorney at Law 100 Court Ave STE 600 Des Moines IA 50309 1803; 1803.1; 2502; 2601; 2602 Filed July 19, 1994 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ STEVE KELSO, : : File No. 944038 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N MAYTAG COMPANY, : : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 1803, 1803.1 Claimant sustained a simultaneous bilateral injury to his upper extremities. The benefits owed were calculated on a functional basis under section 85.34(2)(s). According to the statute claimant was entitled to 100 weeks of permanent partial disability benefits. The line of cases in Simbro was followed. 2601; 2602; 2502 Defendant was required to reimburse claimant for the cost of an independent medical examination pursuant to section 85.39. The examination and report was in the sum of $500.00.